International Longshoremen's and Warehousemen's Union

National Labor Relations Board - Board Decisions

Feb 26, 1952

98 N.L.R.B. 284 (N.L.R.B. 1952)

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and benefit, personnel section of the industrial relations division, and
merely has access to information concerning the hiring of employees,
the administration of various benefit plans, and line supervisors' re-
ports of employees' job performance which have promotional im-
portance. Roberts is a stenographer in the safety section which ad-
vises management on safety programs and handles workmen's com-
pensation claims and related matters. We find that, as Bosich and
Roberts do not assist or act in a confidential capacity to persons who
formulate and effectuate labor relations policy, they are not confi-
dential employees within the Board's definition of the term.-, Ac-
cordingly, we shall include them in the unit.
We find that all office and clerical employees at the Employer's
Wood River, Illinois, refinery, excluding all other employees, con-
fidential employees, guards, and professional employees, and super-
visors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
a Cf. Minnesota and Ontario Paper Co., 92 NLRB 711, 712-713 ; Phillips Oil Company,
91 NLRB 534, 538-539. The Employer would also exclude as confidential certain other
positions not now filled nor intended to be filled in the near future. We find it unnecessary
to make any determination with respect to these positions.
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION AND
LOCAL 19, INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S
UNION and CLARENCE PURNELL AND ALBERT G. CRUM
WATERFRONT EMPLOYERS OF WASHINGTON, AND ITS EMPLOYER MEMBERS
and ALBERT G. CRUM AND CLARENCE PIIRNELL
LUCKENBACH STEAMSHIP COMPANY, INC. and CLARENCE PIIRNELL
ALASKA STEAMSHIP COMPANY and CLARENCE PURNELL
ROTHSCHILD-INTERNATIONAL STEVEDORING COMPANY and CLARENCE
PIIRNELL
ALASKA TERMINAL AND STEVEDORING Co. and CLARENCE PURNELL
TAIT STEVEDORING CO., INC. and CLARENCE PURNELL . Cases Nos.
19-CB-38,19-CB-62, 19-CA--220,19-CA--229,19-CA-227,19-CA-
228, 19-CA-230, 19-CA-256, and 19-CA-257. February 26, 1952
Decision and Order
On April 6, 1951, Trial Examiner Thomas S. Wilson issued his
Intermediate Report finding, inter alia, that the Respondent Water-
*See Notice to Show Cause , 101 NLRB No 53, and Supplemental Decision and Order
Amending and Clarifying Certain Findings in the Decision and Order of February 26,
1952, 101 NLRB No. 151.
98 NLRB No. 44.
INTERNATIONAL LONGSHOREMEN'S, ETC., -UNION 285
front Employers of Washington 1 and the Respondent Local 19, of
International Longshoremen's and Warehousemen's Union,2 had en-
gaged in certain of the unfair labor practices respectively charged to
each by the complaint, and recommending that each of these Respond-
ents and the employer-members of Waterfront Employers of Wash-
ington cease and desist from the unfair labor practices found and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner further found
that these Respondents had not engaged in certain other alleged unfair
labor practices, and that no other of the Respondents in this case had
engaged in the unfair labor practices charged to them, and, accord-
ingly, he recommended the dismissal of the pertinent allegations of
the complaint.
Thereafter, exceptions to the Intermediate Report were filed by the
General Counsel, the complainants, the Respondent W. E. W., for
itself and its employer-members, and the ILWU, for itself and
its Local 19. Briefs in support of exceptions were filed by all those
challenging the Trial Examiner's findings, except the ILWU.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing, and with the exceptions noted below, finds that no
prejudicial error was committed. It therefore affirms all procedural
rulings of the Trial Examiner other than those specifically noted
below. The Board has considered the Intermediate Report, the briefs
and exceptions, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner,
with the following additions and modifications.
A. The discriminatory operation of the Seattle hiring hall
This case is concerned with the operation of the Seattle hiring hall
pursuant to contractual arrangements between the Respondent Unions,
on the one hand, and the Respondent Employers, on the other. As
the Intermediate Report discloses, these contractual arrangements are
embodied in two agreements-one dated December 6, 1948, covering
the employment of longshore workers, and the other, dated February
265 1949, covering the employment of dock workers. The former con-
tract, one negotiated between the ILWU and various employer associa-
tions following the longshore strike of September-December 1948,
embodies in detail the procedure for hiring hall operations through-
out the Pacific Coast area and binds all employers, members of the
employer associations signing the contract (of which W. E. W. is one),
to hire only through the hiring halls. This contract, referred to in
the Intermediate Report and here as the Coast Agreement, is the
I Herein referred to as w. E. W.
2 The International Longshoremen's and Warehousemen's Union is referred to herein as
the ILWU, and its Local 19 as "Local 19" or "the Local."
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
identical contract the Board first considered in a case against the
ILWU in which the Pacific Maritime Association was one of the
complainants .3 It contains the very provision for preferential dis-
patch of ILWU members which we held, in the PMA-ILWU case,
to be proscribed by Section 8 (a) (3) of the Act.
The additional agreement here involved, signed, by W. E. W. and
Local 19, provides for the use of the hiring hall as established under
the Coast contract, for the procurement of dock workers by the em-
ployer members of W. E. W., and specifically incorporates the unlaw-
ful preference clauses of the Coast contract.
Because of the inclusion and maintenance of the unlawful preference
clauses, the complaint charges W. E. W. and its individual employer
members, as employer parties to both agreements, with violations of
Section 8 (a) (3), 8 (a) (2), and 8 (a) (1) of the Act, and Local
19, union party to the Dock Agreement, with violations of Section
8 (b) (2) and 8 (b) (1) (A) 4 Respondents assert certain procedural
defenses to these allegations. Primarily these defenses are predicated
on the premise that, contrary to the provisions of Section 10 (b)
of the Act, more than 6 months elapsed between the date the charges
were filed and served, and the respective execution dates of the
agreement.
More specifically, as to the Coast Agreement, the Respondent
W. E. W. urges that its unfair labor practice (if any) of "executing"
the unlawful preferential hiring - contract was consummated on or
about November 25, 1948, when the parties hereto orally affirmed it,
and that hence the charge filed by Crum on June 14, 1949, was clearly
"untimely." The record shows, however, that the complete Coast
Agreement was not formally signed and executed until February 1949,
a date clearly within the 6-month period preceding the filing and
service of the June 14 charges. And, irrespective of whether a "cause
of action" may have previously arisen because of oral agreement to
the clauses found unlawful, it is clear that a new "cause of action"
arose when the inclusion of such clauses in the completed contract was
formally ratified and sanctioned. We find, therefore, as did the Trial
Examiner, that there is no procedural bar to the assessment of unfair
3 International Longshoremen's and Warehousemen 's Union, et at., 90 NLRB 1021.
This case is hereafter referred to as the PMA-ILWU case More recently , the hiring hall
procedures contained in that contract , as applied to certain individual employees in the
San Francisco area, were considered in a case against the ILWU in which two individuals,
Roosevelt Stafford and Joseph Sorce , were the complainants . International Longshoremen's
and Warehousemen's Union, et at, 94 NLRB 1091 . This case is hereafter referred to as the
Sorce and Stafford case.
4 The General Counsel's representative stated on the record that the omission of the ILWII
from the portions of the complaint alleging the inclusion and maintenance of the unlawful
preference clauses in the Coast Agreement to be unlawful was due to the fact that the
Board's outstanding order against the ILWII, issued in the PMA-ILWU case ( op. cit.
supra ), involved the identical Coast contract , and hence there was no need for further
litigation of the same unfair labor practice in this case.
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 287
labor practice liability against W. E. W. on the basis of its execution
and effectuation of the unlawful preference clauses of the Coast
Agreement.
As to the Dock Agreement, the exceptions of the Respondents
W. E. W. and Local 19, which aver that the procedural requirements
of the 10 (b) proviso were not met, point out that the only charges
filed and served within 6 months of the execution date of this agree-
ment did not specifically identify that contract with the unfair labor
practices charged. Like the Trial Examiner, we find no merit in
these exceptions. As we have pointed out in a number of decisions,5
the filing and service of a charge stops the running of the 6-month
limitation provisions of Section 10 (b), as to any unfair labor practice
committed within the 6-month period preceding the filing and service
of the charge and/or any period subsequent thereto, whether or not
the charge particularly mentions the acts involved. We therefore
adopt the finding of the Trial Examiner that the complaint properly
alleged, as to both W. E. W. and Local 19, the unfair labor practices
reflected by the execution and maintenance of the Dock Agreement.
The Trial Examiner concludes, and we agree, that the Respondent
W. E. W. violated Section 8 (a) (3) and (1) of the Act by its execution
and maintenance of the Coast and Dock Agreements, and that the
Respondent Local 19 violated Section 8 (b) (2) and 8 (b) (1) (A)
of the Act by its execution and maintenance of the Dock Agreement.
He dismissed, however, the allegation of the complaint additionally
charging that the Respondent W. E. W.'s activities were violative
of Section 8 (a) (2) of the Act. We find merit to the General
Counsel's exception to such dismissal. In accordance with established
precedents we hereby find that by its execution and maintenance of
the Coast and Dock Agreements the Respondent W. E. W. also
violated Section 8 (a) (2) of the Act.
As noted above, the complaint also charges the individual members
of W. E. W. with violations of Section 8 (a) (1), 8 (a) (2), and
8 (a) (3) of the Act, based partly upon their connection with the
unlawful contractual arrangements, and partly upon the alleged
commission by some of them of independent conduct violative of the
Act. The Trial Examiner found that none of the individual
Employer-Respondents committed the independent unfair labor
practices charged to them, but held that each of them was individ-
ually responsible for the unfair labor practices committed by W. E. W.
Accordingly, he included each of them within the directive of the
6 E. g. Cathey Lumber Co., 86 NLRB 157 ; Ferro Stamping Co., 93 NLRB 1459 , Olin In-
dustries, Inc., 97 NLRB 130. See also N. L. R. B. v. wester Boot and Shoe Co., 190 F.
2d 12 (C. A. 5).
6 E g., Julius Resnick, Inc., 86 NLRB 38 ; Federal Stores, Inc., 91 NLRB 647 ; New York
State Employers Association et al., 93 NLRB 127; Strauss Stores, Inc., 94 NLRB 440.
See also the PMA-ILWU case, supra.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedial order. We agree with the Respondent W. E. W., however,
that such an order is not appropriate here.
The record shows that only five of the individual employers, those
named in Cases Nos. 19-CA-227, 228, 230, 256, and 257, were actually
served with the complaint and notice of hearing. The remaining
individual employers are therefore not properly before us? We shall
therefore dismiss the complaint as to this group on that ground.
As to the five which were served with the pleadings, the Trial
Examiner recommended dismissal as to two (Alaska Terminal and
Tait) on the ground that they were not timely served with charges.
As no exceptions were filed to this recommendation, we adopt it,
whether or not we would otherwise agree with it, and shall dismiss
the complaint as to Alaska Terminal and Tait. As to the remaining
three (Alaska Steamship, Luckenbach, and Rothschild), the Trial
Examiner dismissed on the merits," but since they were timely served,
there is no procedural bar to their inclusion in the order. However,
quite apart from any legal questions as to their responsibility for
the unfair labor practices committed by W. E. W. because of their
membership therein, we do not believe, under the circumstances of
this case, that it would effectuate the policies of the Act to include
only these three employers in the order.
Our inability or failure to include any of the individual employers
in the Board order does not preclude the issuance of directives to
W. E. W, to utilize all powers it possesses, by virtue of its relationship
to such members, to ensure their cooperation in the affectuation of the
objectives of our order. The record here establishes that W. E. W.
is empowered, under its charter, to force each of its members to
participate in discharging liabilities which may accrue to W. E. W.
as a result of action taken by it in its representative capacity, and
within the scope of its broad authority in matters concerning labor
relations. In these circumstances, we believe it will effectuate the
policies of the Act to require W. E. W. to invoke the powers it has
thus been granted by its members. Our order shall accordingly in-
clude such a provision.
There remains, as to W. E. W., a question as to whether we should
order it, as part of the remedy for its unlawful execution and mainte-
nance of the contracts here in issue, to set aside the entire contracts
and to withdraw recognition from the Respondent Unions until certi-
fied by the Board. The Trial Examiner failed to recommend such a
v See Section 10 (b) and (c) of the Act.
8 In the case of Alaska Steamship and Luckenbach, the Trial Examiner dismissed upon
the findings that the record did not establish the existence of an employer-employee rela-
tion with respect to the kind of workers affected by the unfair labor practices alleged.
In the case of Rothschild, the Trial Examiner's dismissal was based upon a finding that
the evidence did not sustain its commission of the specific conduct attributed to it. No
exceptions were filed to these rulings.
INTERNATIONAL LONGSHOREMEN ' S, ETC., UNION 289
remedy; he merely ordered the deletion of the specific contract provi-
sions found to be unlawful , and enjoined their enforcement or re-
execution . Although such a limited order was recommended by the
Trial Examiner in the light of his dismissal of the 8 ( a) (2) allega-
tions, we note that the General Counsel takes no exception to the scope
of the remedy so recommended by the Examiner, and indeed, affirma-
tively requested that we not expand it. None of the other parties has
excepted to the order . In these circumstances, we shall , in accord
with analogous precedent ,9 adopt the Trial Examiner 's recommenda-
tion in this respect without substantial change.
B. The discrimination against Crum and Purnell _
The additional allegations of the complaint are based upon charges
that the hiring hall dispatchers denied dispatch privileges to long-
shoremen Albert Crum and Clarence Purnell on and after certain
dates, because they lost their membership status in the Respondent
Unions and thus fell outside the class of persons entitled to the benefits
of the unlawful union-security provisions of the Coast Agreement dis-
cussed above, and that accordingly Crum and Purnell were discrimina-
torily precluded from obtaining work with any longshore employer.
In defending these charges, the Respondent parties conceded, in
effect, that if the hiring hall dispatchers did in fact refuse dispatch to
these individuals (or any others) such a refusal was tantamount, under
the hiring hall arrangement, to a refusal of the longshore employers
to hire 10 Each claimed, however, that neither Crum nor Purnell ap-
plied for work at any of the times here material and that no "refusal"
to dispatch could thus be established. In addition, the Respondent
Local contended that in any event the complaint against it should be
dismissed because of certain alleged procedural defects; and Respond-
ents ILWU and W. E. W. each asserted that irrespective of what the
facts might show as to the conduct of the hiring hall dispatchers,
neither of these Respondent parties was legally responsible for the
dispatchers' conduct. It thus appears that apart from the questions
of liability, which we discuss separately below, we need only examine,
for purposes of determining the factual validity of the complaint on
the issue of discriminatory refusal to hire, those of the record facts-
that may establish whether, and for what reasons, the hiring hall dis-
patchers refused to refer Crum and Purnell to available employment.
The Trial Examiner found that, in Crum's case, there was no merit
to the Respondents' contention that Crum had failed to apply for
"See The Squirt Bottling and Distributing Co., 92 NLRB 1667. Compare the PMA-
ILWU case
11 Under the terms of the Coast Agreement, the longshore employers were bound to hire
all their employees through the hiring hall , so long as the latter had any applicants
available for dispatch.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work at the hiring hall in the customary manner . He found, further,
that on or after January 29, 1949, the hiring hall dispatchers refused
to dispatch Crum to available employment because, under the Re-
spondent Local's intraunion regulations , Crum lost all his membership
privileges on that date by failing to pay the $2,400 fine previously as-
sessed against him by the Respondent Local's executive committee.
We agree with the-Trial Examiner, but do not believe, as he appar-
ently did, that in refusing to dispatch, the dispatchers were acting
pursuant to Rule 1711 of the dispatching rules incorporated in the con-
tract. For, as the Respondents point out, the "penalties" referred to
in that rule involve penalties assessed for failure in the performance of
employment obligations, rather than for deliquencies in obligations
arising purely out of the possession of union membership status. We
are of the view, rather, that in refusing Crum dispatch privileges, the
hiring hall dispatchers were acting solely under the authority granted
1 o them under the unlawful security clause of the Coast Agreement to
grant preferential dispatch privileges only to members of the ILWU.
And, although the Trial Examiner made no specific finding that Crum's
membership privileges in the ILWU were adversely affected by the
Local's withdrawal of membership status, there is no question on this
record but that this was so. Thus, it is clear from the ILWU's con-
stitution and bylaws that membership in the ILWU is conferred only
through the grant of membership by the Locals 12 Hence ILWU
membership ' is adversely affected whenever a Local takes adverse
action on a member's status. We so find.
In the case of Purnell, as appears more fully in the Intermediate
Report, his loss of membership privileges in the Respondent Unions
occurred under circumstances similar to those established in the case
of Crum. The $2,400 fine in his case was imposed on or about January
3, 1949, and upon his delinquency in payment, on February 3, 1949, he,
like Crum, became automatically "debarred" under the Union's rules
from "any and all benefits" of membership.13 The Trial Examiner
found, in effect, however, that there was not sufficient evidence to es-
tablish a "refusal" by the hiring hall dispatcher to refer Purnell to
available work following this withdrawal of membership status in
view of (1) the testimony of Chief Clerk-Dispatcher William Laing
that Purnell's name was still on the plug board and that if he had
applied, he could have been, and still could be, dispatched; and (2)
This rule provides that "no man is to be dispatched for work when there is a penalty
against him."
'a The only provision under the ILWU constitution for membership in the ILWU, apart
from the Local , is in the case of persons belonging to a "dissolved local." Such persons
have the 'privilege of retaining membership in good standing with the International until
they affiliate with some other "Local ," by payment of $1 per month plus any other ( Inter-
national ) assessments. Article IX, section IV of the ILWU constitution and bylaws, as
amended, to April 9, 1949.
is The quotations are from section 4, article IX, of the Local's constitution and bylaws.
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 291
Purnell's admission that he had not attempted to "plug-in" on the
hiring hall's. boa-rd at any time here material. The Trial Examiner
reasoned that, although he entertained "large doubts as to the accuracy
and truth" of Laing's testimony with respect to the continuation of
Purnell's dispatch privileges following his delinquency in payment of
the fine, nevertheless "it would be pure speculation and surmise to find
to the contrary" in the light of Purnell's admitted failure to apply at
the hiring hall for work. We do not agree. For we believe that the
"truth and accuracy" of Laing's testimonial representation is im-
pugned both by the statements made by Laing and the Local Union's
secretary to Purnell.at a time contemporaneous with the events com-
plained of, aid by the independently established objective facts in this
record, particularly the treatment accorded Crum for his failure to
pay a similar assessment. As an affirmative proposition, we believe
that Laing's contemporaneous conduct toward Purnell was such as to
excuse Purnell's failure to apply for work, and to permit findings of
discrimination, absent affirmative evidence that Purnell was offered
dispatch during times here material.
The record shows that, as Purnell testified, any application by him
for work following the Local's suspension of his membership would
have been a useless gesture. ^ Thus, examination of the methods by
which the Local "policed" the hiring hall's administration of the
Union's security provisions 14 and the operation of "bug" procedure,
establishes that it -was the invariable practice of the Union to notify
the hiring hall of any changes adversely affecting membership status,15
and a routine procedure for the hiring hall to remove the names of the
affected individuals from the "regular" dispatch boards containing the
names of union members.76 No showing was made by any of the
Respondents that there were any independent circumstances in
Purnell's case which precluded application of the "bug" procedure.
On the contrary, the undisputed evidence establishes affirmatively that
Purnell's situation was treated by the Union and the hiring hall exactly
as was Crum's. Thus, Purnell testified without contradiction, and
The Local's administration of the union-security provision was by virtue of delegation
to It by the ILWIJ.
is As part of the effective administration of the union-security contract rights, the
Respondent Local has provided for the "policing" of the hiring hall -dispatching office
by its business agent who must "see that only local members are employed or those author-
ized by the Local and see that members keep themselves in good standing. He shall have
the power to examine dues books on the job . . . and shall see that all members abide
by and maintain the working laws of this Local." See article VIII, section 5 (b) of the
Local's bylaws
16 The record shows that there are two boards in the hiring hall ; one, the regular dispatch
board which contains the names of all registered longshoremen, and the other a "casual"
board, containing the names of any other persons who come in to seek work through the
hiring hall. Under the dispatch system, the first of any group of applicants who may
apply to be dispatched to work are those registered longshoremen who are also union
members ; next are the registered longshoremen who may not be union members, or whose
membership status may have been adversely affected. After all registered persons have
been dispatched, "casuals" are then sent out. -
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner found, that shortly after imposition of the fine
by the Respondent Local, Purnell telephoned the hiring hall dispatch-
ing office and spoke to Chief Clerk-Dispatcher Laing with a view to
obtaining a "statement-of-availability" form required under the State
compensation laws as a condition of obtaining unemployment benefits;
According to Purnell, Laing told him on this occasion that he still had
"30 days" in which to work, that hence the "statement-of-availability"
form would not be supplied, and, in effect, offered Purnell a job at that
time.lr Purnell, in turn, stated that he could not accept work at that
time, due to an arthritic condition. It appears further that later, to-
ward the end of the 30-day period following imposition of the fine,
Purnell again telephoned the hiring hall and again spoke to Chief
Clerk-Dispatcher Laing, renewing the request for an "availability"
statement 18 On this occasion, Laing did not offer Purnell employ-
ment, but told him "he [Laing] thought [Purnell's] time was up and
[Purnell] couldn't work any more until [he] paid [his] fine." Laing
also refused to give the "availability" statement, and referred Purnell
to Bill Clark, secretary of the Respondent Local, for any further in-
quiries in that connection. Clark likewise indicated he would not
authorize the signing of the "statement" and similarly told Purnell he
"couldn't work any more until [he] paid his fine."
In the light of the foregoing circumstances, we find that Purnell's
application for work would have been a futile gesture. Under well-
settled principles, his making that futile gesture is not a prerequisite
to a finding of discrimination 19
We find further, on the basis of the facts set forth above, that the
hiring hall dispatchers denied dispatch to Purnell because, as in the
case of Crum, by his delinquencies with respect to the outstanding
union fine, he fell outside the class of persons, viz, "members" of the
Union entitled to the benefits of the unlawful preference-in-dispatch
provisions of the Coast Agreement. In so finding, we. are aware of
the fact that Purnell was suffering from an arthritic condition, and
that, as a consequence, he had refused employment proffered him by
the hiring hall dispatching office before the withdrawal of dispatch
privileges was effected, and that the record does not show when
Purnell became physically fit to work. The absence of such a showing,
however, in a situation such as this, affects only the framing of a back-
pay order. It does not go to the substantive issue of discrimination;
nor does it operate to relieve the Respondents from the obligation to
offer Purnell employment opportunity. For, as above indicated, we
are satisfied that so long as Purnell's membership remained in a "sus-
Compare the similar treatment of Crum.
The Trial Examiner mentioned only one conversation . However, Purnell testified that
he called the hiring hall on two different occasions . We credit his testimony.
ie See J. R. Cantrall Co., 96 NLRB 786; Utah Construction Co , 95 NLRB 196.
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 293
pended" status, the privileges of the hiring hall were wholly unavail-
able to him, just as they were unavailable to Crum, without regard to
his physical ability to do longshore work.
C. Responsibility for the discrimination against Crum and Purnell
1. Local 19
Tie Trial Examiner refused to hold Local 19 responsible for the
discrimination against Crum, because Crum failed to file charges
against the Respondent within 6 months from January 29, 1949, the
date the hiring hall's discrimination occurred. However, for reasons
indicated in section A above, it is clear, and we find, that the "timely"
charges filed by Purnell provided a sufficient basis for the litigation of
Local 19's discrimination not only as to Purnell, but also as to Crum.
As the record shows that the dispatchers were selected by Local 19,
and were the ones engaged directly in administering the hiring hall's
dispatch arrangement, Local 19's responsibility for the unfair labor
practices is clear. We find, therefore, that the Respondent Local has
engaged in and is engaging in violations of Section 8 (b) (2) and 8
(b) (1) (A) of the Act.
2. The ILWU
The Trial Examiner substantively found that no liability for the
hiring hall's discrimination could be attributed to the ILWU,20 in view
of the latter's delegation to the Local of its contractual powers with
respect to the hiring hall, and the absence of evidence indicating
specific knowledge and ratification by the ILWU of the acts forming
the subject of the complaint. However, for reasons set forth in the
Board's decision in the Sorce and Stafford-ILWU case (94 NLRB
1091), we believe that the ILWU's delegation of its contractual pow-
ers to`the,Local furnishes no basis for relieving it from liability. This
is particularly true where, as here, the discriminatory acts of the hiring
hall reflected the application of unlawful union-security provisions
contracted by the ILWU for its own benefit (as well as the Local's),
and vesting in it the over-all power of their administration. We find,
therefore, that the ILWU is jointly and severally liable, together with
the Local, for violations of Section 8 (b) (2) and 8 (b) (1) (A).
3. The W. E. W.
The Trial Examiner held the W. E. W: responsible for such indi-
vidual discrimination as he found. In excepting to this holding,
m In view of Crum's "timely " charges against the ILWU , as described in the Intermediate
Report, we find, contrary to the Trial Examiner , and for the reasons indicated above, that
there is no procedural bar to the assessment of liability against the ILWU for the dis-
crimination in the case of Purnell, as well as Crum.
998666-vol 98--3 ---20
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. E. W. contends that it cannot be held liable under the contract be-
cause "the alleged refusal to dispatch . . . did not flow from the con-
tract and from any system established under the contract. It was
purely an unauthorized unilateral act by the Respondent Union." We
find no merit in this contention and agree with the Trial Examiner,
adopting only so much of his reasoning as is consistent with our views
herein.
In our opinion, the liability of the W. E. W. stems from the fact that
it was one of the employer signatories to the contract which established
the unlawful hiring hall arrangement. Under this arrangement, it
was agreed that all hiring would be done through the hiring hall, that
the dispatcher-the person in charge of the day-to-day dispatchment
of men-was to be-selected by the union signatory and that in dispatch-
ing men for jobs, "members" of the Union were to be given preference.
Since the discrimination against Crum and Purnell because of this
loss of good-standing membership 21 was, in our opinion, at least the
reasonably to be anticipated result of the administration of the con-
tractual preferential hiring hall procedure, we shall, in accord with
applicable decisions, hold the W. E. W. responsible therefor.22
But we need not base our conclusion on this ground alone. For the
record convinces us that the denial of employment to members who,
like Crum and Purnell, had lost their good standing, was well within
the contemplation of the contractual "member" preference clause.
The hiring hall system provided for the registration of applicants and
also superimposed a discriminatory preference in the dispatching of
union "members." That the word "member" when used in the con-
text of a union's security clause means "member in good standing" is
clear.23 In any event, it is apparent that in administering the hiring
hall, it was the established practice not to dispatch "members" who
had "bugs" against their names for failure to pay their union dues or
fines. The record convinces us that the W. E. W. knew such to be the
established practice and acquiesced in it. Thus Cornell, the president
of W. E. W., admitted that he had heard "rumors" of this practice and,
according to the credible testimony of Purnell, had been advised that
Purnell was being denied dispatching rights because he had not paid
the fines assessed by the Union.
We conclude therefore that liability for the hiriiag hall's discrimina-
tory denial of dispatch privileges to Albert Crum and Clarence
5' As found above, Crum and Purnell were in effect denied employment because their
failure to pay the fine assessed by the Local resulted in the loss of all beneficial attributes
of membership in both the Local and the ILWU.
22 Cf Childs Co, 93 NLRB 281; Consolidated "Western Steel Corporation, 93 NLRB 1199;
Del E. Webb Construction Co., et al, 95 NLRB 75; Utah Construction Co., 95 NLRB 196.
23 See Firestone Tire & Rubber Co., 93 NLRB 981, where the Board construed the word
"member" in a similar context to mean "member in good standing."
INTERNATIONAL LONGSHOREMEN ' S, ETC., UNION 295
Purnell is attributable to the Respondent W. E. W. and that, accord-
ingly, it has engaged in, and is engaging in, violation of Section 8 (a)'
( 3) and 8 (a) (1) of the Act.
D. The remedy for the hiring hall's discrimination against
Crum and Purnell
Selection of the appropriate remedies for the violations affecting
Crum involves, inter alia, consideration of the effect to be given to
the "deregistration" action of the Committee taken April 20, 1949,
at the request of the union members of that Committee, pursuant to
which Crum's name was removed from the port registration lists.
This action, apart from his failure to pay the Union's assessment,
precluded his normal employment through the hiring hall rotation
system.24 Because the Union's demand was made under color of a
long-established nondiscriminatory "employment" policy on the water
front (promulgated to discourage the "casual" worker), the Trial
Examiner reasoned in effect that the "deregistration" was valid. He
held that it operated as a bar both to the entry of an order directing
the Respondents to take steps looking toward the reinstatement
of Crum's hiring hall privileges, and to the grant of back pay beyond
April 20, 1949. The proponents of the complaint strongly except to
the Trial Examiner's findings.
In support of his exceptions, the General Counsel contends that
irrespective of the validity of the Trial Examiner's subsidiary findings
concerning the applicability of the "employment" policy to Crum, and
the "good faith" of the reasons underlying its application to him,25
the Board should not permit the Respondent to assert this kind of
action as a bar to an uncoliditional'reinstatement and back-pay order.
We agree.
It is well settled that the appropriate means to remedy unfair labor
practices is a matter over which the Board enjoys broad discretion.
We have customarily held, with judicial approval, that the policies of
the Act can best be effectuated by ordering reinstatement with back pay
to victims of discriminatory hiring and discharge practices. Under
this approach, persons responsible for such discriminatory loss of
employment incur an immediate liability to restore the status quo
'' The Port registration lists contain the names of all registered longshoremen. Under
the terms of the Coast Agreement , additions to, or removals from , such lists are entrusted
to the Committee . The registration system serves to identify the workers who are entitled
to be dispatched from the hiring hall, subject to the regulations of the hall and to the
unlawful preferential dispatch practices in favor of union members . As noted above,
persons who seek employment through the hiring hall , although not "registered" on the
lists , are deemed "casuals," and , under the regulations of the hall , will be dispatched only
after all available "registered" persons have been dispatched.
u Such subsidiary findings are the subject of specific exception both on tine part of the
General Counsel and of counsel for the charging parties.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ante.26 We do not believe that it would effectuate the policies of the
Act to permit the Respondents to limit or terminate their liability by
this voluntary action in retroactively applying a rather elastic rule
during the period of the discrimination.27 But even if it be assumed
that the parties acted in good faith in "deregistering" Crum, it is
clear that his loss of employment was in no way related to that action;
for he had already been effectively and permanently debarred from
all opportunity to obtain employment on a nondiscriminatory basis.
Moreover, the effects of discriminatory acts such as are here involved
are not confined to specific victims alone. This is particularly true
where, as here, the discrimination is but a specific act in furtherance of
an over-all discriminatory hiring policy given specific contract sanc-
tion. In such a situation, we cannot be certain that the effect of the un-
fair labor practices will be completely eradicated by any remedy short
of an unconditional order presently commanding fulfillment of the
obligations the Respondent incurred at the time of the initial
discrimination.
But aside from the foregoing reasons for the fullest exercise of
our remedial power in Crum's case, we find no warrant in the record
for any claim that the deregistration reflected "good faith" appli-
cation of the water front "employment" policy. On the contrary,
as we view the evidence pertinent to this issue, we can only infer
that the "deregistration" was a deliberate act in furtherance of a
considered scheme to evade compliance with the obligations imposed
by the statute. Thus the record shows that Crum's colorable failure
to "accept his work responsibilities" in relation to the hiring hall
predated the events involving Crum which form the subject of com-
plaint. Nevertheless such failure was not invoked as a means of
denying Crum access to the hiring hall until such time as it clearly
appeared that Crum would not comply with the Union's demand
that, as a price of restoration of hiring hall privileges, he remove
the cause of the suspension of his membership-i. e., the nonpayment
of the $2,400 fine. Furthermore, as the admissions of Dispatcher
m Cf., inter alia, Salmon & Cowan, Inc. V. N. L. R. B ., 148 F. 2d 941 (C. A. 5 ), enforcing
57 NLRB 845, where the employer sought to assert a long -existing physical infirmity of an
employee discriminatorily discharged as a reason for the Board's withholding issuance of
the normal ( unconditional ) reinstatement order. The court approved the Board's refusal
to consider such infirmity in framing its order , despite the employer 's claim that he did
not discover the infirmity until after the discharge.
s'' The record shows that "deregistration " of part-time longshoremen was not effected by
regular established routine, but only on a "hit-and-miss" method, whenever one of the
members of the Port Labor Relations Committee felt "moved" to survey the employment
records of longshoremen . Moreover , as the record indicates , even on a showing that a
worker was a "part -time" longshoreman , the Committee still retained discretion to decide
whether or not to remove such worker from the registration lists. Thus , Crum's name had
apparently been "brought up" to the Committee for "deregistration " by the Union on a prior
occasion , but the Committee had refused to act because it believed Crum' s failure to do
longshore work, full time , had been due in part to an injury.
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 297
Laing establish'28 the Union's demand upon the Committee for the
application of the "employment" policy to Crum, as well as the ap-
proval of such action by the union representatives on the Committee,29
reflected a deliberate and unexplained departure from the standards
normally utilized by the Union in determining whether or not in-
vocation of the "employment" policy was appropriate in a particular
case. Thus, Laing admitted at the hearing that a worker would
not ordinarily be reported to the Committee for "low earnings" at
longshore work, where the "absence" of the worker from such work
had been due either to physical disability or to his employment at
"gear locker" work. Laing further admitted that he had reported
Crum's name to the Committee for "low" earnings in a prior year,
but "nothing was done" because it was discovered that Crum had
been injured on the water front. As Crum further testified that he
had accepted "gear locker" work during a larger part of the 4-year
period utilized by the Committee to determine whether Crum's earnings
were "low," because of the injuries he suffered on the water front,
and these facts were either known to, or were readily ascertainable
by, the members of the Committee, it is plainly evident that the `ae-
registration" action here involved was extraordinary. In the absence
of any other explanation, and in the background of the prior dis-
crimination of the hiring hall against Crum, it is reasonable to infer,
rind we find, that at the very least the "deregistration" did not reflect
a "good faith" application of the water front employment policy.
We conclude, for all the foregoing reasons, that to effectuate the
policies of the Act, our order should require the Respondents to take
appropriate measures to restore to Crum all dispatch privileges of
the hiring hall without regard to his union membership status, or to
the "deregistration," and to make him whole for all loss of pay suf-
fered as a result of the Respondents' discriminatory denial of hiring
hall privileges to him. The same restoration of hiring hall privileges
and payment of lost pay shall be ordered in the case of Purnell.
In accordance with the Board's usual policy, the back-pay com-
putation (1) shall exclude, in both cases, the period between the
date of the Intermediate Report and the date -of this Decision and
Order; and (2) shall otherwise be made in accordance with the
formula set forth in F. W. Woolworth and Co., 90 NLRB 289. In
addition, as to Purnell, the "back-pay" computation shall, of course,
u Laing was the clerk -dispatcher , appointed by the chief dispatcher for that office, who
instigated the "deregistration" action in Crum's case, upon instructions from the Local.
He was the same person who told Purnell that he could not obtain work until he paid
his fine.
29 The removal of the name of a worker from the Port registration lists requires the
majority vote of the members of the Port Labor Relations Committee . As noted above,
one-half the members of such committee are union representatives and one-half are
management representatives.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclude the periods when Purnell was physically unable to do
longshore work.
As we have found that both the Respondent W. E. W. and the
Respondent Unions are responsible for the discrimination suffered
by Crum and Purnell, we shall order all the Respondents jointly
and severally to make these employees whole for the loss of pay
they may have suffered by reason of the discrimination against them.
However, under the particular facts of this case, it would be in-
equitable to permit W. E. W.'s liability to increase despite the pos-
sibility of its own willingness to cease authorizing the discriminatory
exercise of hiring power by the hiring hall dispatchers, in the event
that the hiring hall dispatchers should fail to make dispatch privileges
promptly available to those so entitled under the terms of our order.
We shall therefore provide that the Respondent W. E. W. may ter-
minate its liability for further accrual of back pay to Crum and
Purnell or either of them by giving the notices specified in our order
to the hiring hall dispatchers, the Port Labor Relations Committee,
its Employer-Members, and Crum and Purnell .3' The Respondent
W. E. W. shall not therefore be liable for back pay accruing 5 days
from the giving of such notices. Absent such notification, the Re-
spondent W. E. W. shall remain jointly and severally liable with the
Respondent Unions for all back pay to Crum and Purnell that may
accrue until the hiring hall dispatchers comply with our order for
restoration of dispatch privileges.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
L.a Waterfront Employers of Washington, Seattle, Washington,
and its officers, agents, successors, and assigns, shall :
A. Cease and desist from :
(1) Discriminating in the hire and tenure of employment of em-
ployees by: (a) maintaining in effect, or participating in any manner
in the enforcement of, the union-security provisions of the "Pacific
Coast Longshore Agreement" dated December 6, 1948, and of the
"Dock Workers Agreement for the Port of Seattle," dated February
26, 1949, which authorize the hiring hall for the Port of Seattle to
grant preference in dispatch to members of the ILWU and/or Local
19; or (b) entering into, renewing, or participating in the enforce-
ment of any like or related agreements or arrangements which have
the effect of imposing upon the employees or prospective employees
so Cf. Pinkerton'a National Detective Agency, Inc., 90 NLRB 205, 213.
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 299
of its employer-members, the requirement of union membership as
a condition of employment, unless such agreement or arrangement
conforms to the requirements of Section 8 (a) (3) of the Act.
(2) In any other manner interfering with, restraining, or coercing
employees of its employer-members in the exercise of the rights guar-
anteed them in Section 7 of the Act, except to the extent that such
right may be affected by an agreement made in accordance with the
provisions of Section 8 (a) (3) of the Act, requiring membership
in a union as a condition of employment.
B. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Jointly and severally with the Respondents ILWU and Local
19, make Albert Crum and Clarence Purnell whole in the manner
specified in this Decision and Order, for any loss of pay suffered by
them as a result of the discrimination of the Seattle, Washington,
hiring hall against them.
(2) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all or any other records necessary for the determination
of the amount of back pay due under the terms of this Order.
(3) Notify the Port Labor Relations Committee, and the dispatch-
ers of the Seattle, Washington, hiring hall in writing, and furnish
copies of such notices to Crum and Purnell, that the hiring hall dis-
patchers (a) are not to give force or effect to those provisions of the
Coast and Dock Agreements authorizing the preferential dispatch
of members of the ILWU and Local 19; (b) are not to discriminate
in any other manner in the hire and tenure of employment of any
applicant for employment through the hiring hall because of their
failure to acquire or retain membership status in the Respondent
Unions; and (c) are to make promptly available to Albert Crum and-
Clarence Purnell all dispatch privileges of the hiring hall upon re-
quest, in accord with such nondiscriminatory conditions existing at
the time of the discrimination against them, and, in' Crum's case,
without regard to the "deregistration" action of April 20, 1949.
(4) Notify, in writing, each and every employer of the employees
covered by the terms of the contract mentioned in paragraph I (A),
-(1) of the terms of this Order, and request that each of them take
all steps necessary (including the transmission by each to the hiring
hall dispatchers, of a written copy of the notice specified in paragraph
(3) above) to insure that the dispatchers of the hiring hall will not
discriminate against any applicant for employment because of his
failure to acquire or retain membership status in the ILWU or
Local 19.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(5) Invoke such powers and rights as it may have as to each mem-
ber of Waterfront Employers of Washington who employs workers
covered by the agreements mentioned in paragraph I, (A), (1) above,
or who utilizes the facilities of the Seattle, Washington, hiring hall,
in order to discharge its financial obligations under this Order, and
to insure the cooperation of each such employer in effectuating the
terms of this Order.
(6) Post in conspicuous places in its business offices and in the
Seattle hiring hall, including all places where notices to its employer-
members and/or their employees are customarily posted, copies of
the notice attached hereto, and marked "Appendix A." 31 Copies of
this notice, to be furnished by the Regional Director for the Twentieth
Region, shall, after being duly signed by officials of the Respondent
W. E. W., be posted immediately upon receipt thereof and maintained
for a period of sixty (60) consecutive days thereafter. Reasonable
steps shall be taken by Respondent W. E. W. to insure that said notices
are not altered, defaced, or covered by other material.
(7) Notify the Regional Director for the Twentieth Region, in
writing, within ten (10) days from the date of this Decision and
Order, what steps it has taken to comply therewith.
II. Respondents, Local 19 and ILWU, and their respective officers,
agents, representatives, successors, and assigns shall :
A. Cease and desist from :
(1) Giving effect to the union-security provisions of such of the
agreements, described in paragraph I, (A), (1) above, to which they
are a party, and/or participating in the enforcement of such union-
security arrangements whether or not they are signatory parties
thereto.
(2) Entering into, renewing, or agreeing to, or participating in the
enforcement of, any like or related union-security agreement or
arrangement which has the effect of imposing upon employees, or
prospective employees, of employers who utilize the Port of Seattle
hiring hall, the requirement of union membership as a condition of
employment, unless such arrangement or agreement conforms to the
requirements of Section 8 (a) (3) of the Act.
(3) In any other manner requiring, directing, or inducing the
dispatchers of the Seattle, Washington, hiring hall to discriminate in
the granting of dispatch privileges to Albert Crum and Clarence Pur-
nell, or any other employee, or prospective employee, because of their
failure to acquire and/or retain membership status in the Respondent
Unions, or any other labor organization, unless an agreement authoriz-
ai In the event 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."
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 301
ing imposition of union membership as a condition of employment be
made in accordance with the provisions of Section 8 (a) (3) of the
Act.
(4) In ,any other maner causing or attempting to cause the
employers who utilize the Seattle, Washington, hiring hall, or any of
them, or their officers, agents, successors, or assigns, to discriminate in
the hire and tenure of employment, or any condition of employment, of
any employee, or prospective employee, in violation of Section 8 (a)
(3) of the Act.
(5) In any other manner restraining or coercing employees or
prospective employees of the employers who utilize the Seattle, Wash-
ington, hiring hall, in the exercise of the rights guaranteed employees
in Section 7 of the Act, except to the extent that such rights may be
affected by an agreement (made in accordance with the provisions of
Section 8 (a) (3) of the Act) requiring membership in a union as a
condition of employment.
B. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Jointly and severally, and jointly and severally with the
Respondent W. E. W., make Albert Crum and Clarence Purnell whole
in the manner specified in this Decision and Order for any loss of
pay suffered by them as a result of the discrimination of the Seattle,
Washington, hiring hall, against them.
(2) Notify the W. E. W., the Port Labor Relations Committee, the
Seattle , Washington, hiring hall dispatchers, and the employers who
utilize the hiring hall, in writing, and furnish copies of such notices
to Crum and Purnell, that the hiring hall dispatchers (a) are not to
give force or effect to those provisions of the Coast and Dock Agree-
ments authorizing the preferential dispatch of members of the ILWU
and Local 19; (b) are not to discriminate in any other manner in the
hire and tenure of employment of any applicant for employment
through the hiring hall because of his failure to acquire or retain mem-
bership status in the ILWU and Local 19; and (c) are to make
promptly available to Albert Crum and Clarence Purnell all dispatch
privileges of the hiring hall upon request, in accord with such non-
discriminatory conditions existing at the time of the discrimination
against them, and, in Crum's case, without regard to the "deregistra-
tion" action of April 20, 1949.
(3) Notify and direct their representatives or agents who are mem-
bers of the Seattle Port Labor Relations Committee to take such action
as is necessary to restore the name of Albert Crum to the Port registra-
tion lists.
(4) Post in conspicuous places in the Seattle, Washington, hiring
hall, and in their respective business offices, including all places where
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notices to their members are customarily posted, copies of the notice
attached hereto and marked "Appendix B." 32 Copies of this notice
shall, after being duly signed by the respective officers of the Respond-
ent Unions, be posted immediately upon receipt thereof, and main-
tained for a period of sixty (60) consecutive days thereafter. Rea-
sonable steps shall be taken by the Respondent Unions to insure that
said notices are not altered, defaced, or covered by other material.
(5) Respectively notify the Regional Director in writing within
ten (10) days from the date of this Decision and Order, what steps
each has taken to comply therewith.
Appendix A .
NOTICE TO ALL EMPLOYEES OF MEMBERS OF WATERFRONT EMPLOYERS
OF WASHINGTON AND ALL APPLICANTS FOR EMPLOYMENT WHO USE,
OR MAY DESIRE To USE, THE SEATTLE, WASHINGTON, HIRING HALL
Pursuant to a Decision and Order of the National Labor Relations
Board, we hereby notify you that :
WE WILL NOT discriminate in the hire and tenure of employment
of employees by: (a) maintaining in effect, or participating in
any manner in the enforcement of, the union -security provisions
of the "Pacific Coast Longshore Agreement" dated December 6,
1948, and of the "Dock Workers Agreement for the Port of
Seattle" dated February 26, 1949, which authorize the hiring hall
for the Port of Seattle to grant preference in dispatch to members
of the ILWU and/or Local 19; or ( b) entering into, renewing,
or participating in the enforcement of, any like or related agree-
ments or arrangements which have the effect of imposing upon the
employees or prospective employees of our employer-members,
the requirement of union membership as a condition of employ-
ment, unless such agreement or arrangement conforms to the
requirements of Section 8 (a) (3) of the National Labor Relations
Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees of our employer-members in the exercise of the
rights , guaranteed them in Section 7 of the Act, except to the
extent that such right may be affected by an agreement made in
accordance with the provisions of Section 8 (a) (3) of the Act,
requiring membership in a union as a condition of employment.
82 In the event this Order is enforced by 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."
INTERNATIONAL'LONGSHOREMEN'S, 'ETC., UNION 303
WE WILL, jointly and severally with the ILWU and Local 19,
make Albert Crum and Clarence Purnell whole for any loss of
pay suffered by them as a result of the discrimination of the
Seattle, Washington, hiring hall against them.
WE IIAVE personally notified the Port Labor Relations Com-
mittee, and the dispatchers of the Seattle, Washington, hiring
hall, in writing, and furnished copies of such notices to Crum and
Purnell, that the hiring hall dispatchers : (a) are not to give
force or effect to those provisions of the Coast and Dock Agree-
ments authorizing the preferential dispatch of members of the
ILWU and Local 19; (b) are not to discriminate in any other
manner in the hire and tenure of employment of any employee
or applicant for employment through the hiring hall because
of their failure to acquire or retain membership status in the
ILWU or Local 19; and (c) are to make promptly available to
Albert Crum and Clarence Purnell all dispatch privileges of the
hiring hall upon request, in accord with such nondiscriminatory
conditions existing at the time of the discrimination against them,
and, in Crum's case, without regard to the "deregistration" action
of April 20, 1949.
WE HAVE personally notified in writing each and every employer
of employees covered by the terms of the Coast and Dock Agree-
ments of the terms of this Order and requested each of them
to take all steps necessary (including the transmission by each
to the hiring hall dispatchers, of a written copy of the directives
set forth in the preceding paragraph) to insure that the dis-
patchers of the hiring hall will not discriminate against any
employee or applicant for employment because of his failure
to acquire or retain membership status in the ILWU or Local 19.
WE WILL invoke such powers and rights as we may have as to
each member of Waterfront Employers of Washington who
employs workers covered by the Coast and Dock Agreements,
or who utilizes the facilities of the Seattle, Washington, hiring
hall, in order to discharge our financial obligations under this
Order, and to insure the cooperation of each such employer in
effectuating the terms of the Order of the National Labor Relations
Board.
WATERFRONT EMPLOYERS OF WASHINGTON,
Employer.
By --------------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
NOTICE TO ALL EMPLOYEES OF MEMBERS OF WATERFRONT EMPLOYERS OF
WASHINGTON, ALL APPLICANTS FOR EMPLOYMENT WHO USE, OR MAY
DESIRE TO USE, THE SEATTLE, WASHINGTON, HIRING HALL, ALL
OFFICERS , REPRESENTATIVES , AGENTS, AND MEMBERS _OF INTERNA-
TIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, AND ITS
LOCAL 19
Pursuant to a Decision and Order of the National Labor Relations
Board, we hereby notify you that :
WE WILL NOT maintain in effect the -provisions of the named
agreement described below 33 which authorizes the hiring hall
dispatchers to- give preference in dispatch to members of the
ILWU or Local 19, or participate in any manner in the enforce-
ment of the union-security arrangements of the Coast and Dock
Agreements.
WE WILL NOT enter into, renew, or agree to, or participate in the
enforcement of, any like or related union-security agreement
or arrangement which has the effect of imposing upon employees,
or prospective employees, of employers who utilize the Seattle,
Washington, hiring hall, the requirement of union membership
as a condition of employment, unless such arrangement or agree-
ment conforms to the requirements of Section 8 (a) (3) of the
National Labor Relations Act.
WE WILL NOT in any other manner require, direct, or induce the
dispatchers of the Seattle, Washington, hiring hall to discriminate
in the granting of dispatch privileges to Albert Crum and Clar-
ence Purnell, or any other employee, or prospective employee,
because of their failure to acquire and/or retain membership
status in Local 19 or the ILWU, or any other labor organization,
unless an agreement authorizing imposition of union membership
as a condition of employment be . made in accordance with the
provisions of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner cause, or attempt to cause,
the employers who utilize the Seattle, Washington, hiring hall, to
discriminate in the hire and tenure of employment, or any con-
dition of employment, of any employee, or prospective employee,
in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees,
or prospective employees of the employers who utilize the Seattle,
Washington, hiring hall, in the exercise of the rights guaranteed
33 The named agreement in the ILWU's notice shall be the "Pacific Coast Longshore
Agreement ," dated December 6, 1948, and in Local 19 's notice shall be the "Dock Workers
Agreement for the Port of Seattle," dated February 26, 1949.
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 305
employees in Section 7 of the Act, except to the extent that such
rights maybe affected'by--an-agreement made in -accordance, with
the provisions of Section 8 (a) (3) of the Act, requiring member-
ship in a union as a condition of employment.
WE wILL jointly and severally, and jointly, and severally with
Waterfront Employers of Washington, make Albert Crum and
Clarence Purnell whole for any loss of pay suffered by them as
a result of the discrimination of the Seattle, Washington, hiring
hall against them.
WE HAVE personally notified the Waterfront Employers of
Washington, the Port Labor Relations Committee, and the hiring
hall dispatchers, in writing, and furnished copies of such notices
to Albert Orum and Clarence Purnell, that-the hiring hall dis-
patchers: (a) are not to give force or effect to those provisions
of the Coast and Dock Agreements authorizing the preferential
dispatch of members of the ILWU and Local 19; (b) are not to
discriminate in any other manner in the hire and tenure of em-
ployment of any applicant for employment through the hiring
hall because of his failure to acquire or retain membership status
in the ILWU or Local 19; and (c) are to make promptly avail-
able to Albert Crum and Clarence Purnell all dispatch privileges
of the hiring hall upon request, in accord with such nondis-
criminatory conditions existing at the time of the discrimination
against them and, in Crum's case, without regard to the "deregis-
tration" action of April 20, 1949.
Our representatives or agents who are members of the Seattle Port
Labor Relations Committee have taken such action as is necessary
to restore the name of Albert Crum to the Port registration lists.
INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN 'S UNION2
By ---------------------------------------
(Representative ) ( Title)
LOCAL 19, INTERNATIONAL LONGSHOREMEN'S
AND WAREHOUSEMEN'S UNION,
By ---------------------------------------
(Representative ) ( Title)
Dated ---------------------
This notice must remain posted for 60 days and must not be altered,
defaced, or covered by any other material.
Intermediate Report -
STATEMENT OF THE CASE
Upon innumerable charges and amended charges filed at various times between
February 21, 1949, and December 1, 1950, by Clarence Purnell and Albert G.
306 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
Crum, individuals, hereinafter referred to as the Complainants, the General
Counsel of the National Labor Relations Board' by the Regional Director for
the Nineteenth Region (Seattle, Washington), issued a consolidated complaint
dated December 1, 1950, against International Longshbremen's and Warehouse-
men's Union, hereinafter referred to as ILWU; Local -19, International Long-
shoremen's and Warehousemen's Union, hereinafter referred to as Local 19;
Waterfront Employers of Washington and its Employer-Members, hereinafter
referred to collectively as W. E. W.; and Luckenbach Steamship Company, Inc.,
AlaSka Steamship Company, Rothschild-International Stevedoring Company,
Alaska Terminal and Stevedoring 'Co., and Tait Stevedoring Co., Inc., herein-
after referred to as the Employer Respondents ; alleging that the Employer
Respondents and Respondent W. E. W. had engaged in, and were engaging in,
unfair labor practices affecting commerce within the meaning of Section 8 (a) (1)
and (3), and that the Respondent Unions had engaged in, and were engaging in,
unfair labor practices affecting commerce within the meaning of Section
(8) (b) (2) and (b) (1) (A) and Section 2 (6) and (7) of the Labor Man-
agement Relations Act, 61 Stat. 136, herein called the Act.
Copies of the complaint, the numerous charges and amended charges, and notice
of hearing were duly served upon the W. E. W., Employer Respondents, ILWWWU,
and Local 19.
With respect to the alleged unfair labor practices against the W. E. W. and the
Employer Respondents, the complaint alleged, in substance, that : (1) By entering
into two contracts known as the Pacific Coast Longshore Agreement and Dock
Workers' Agreement for Port of Seattle, respectively, with the Respondent Unions
containing allegedly illegal preference in employment clauses and by acqu-escing
in and assenting to a hiring hall arrangement whereby the Respondent Unions
were placed in a position to, and did, actively enforce the preferential employment
provisions of said contracts by refusing to dispatch the individual Complainants,
all the Employer Respondents and W. E. W. engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and' (3) of the Act, and (2) by entering
into the same contracts and by contributing financial support to a central hiring
ball operated discriminatorily in favor of members of the Union, Respondent
W. B. W. and the Employer Respondents violated Section 8 (a) (2) of the Act.
With respect to the unfair labor practices charged against the Respondent
Unions, the complaint alleged, in substance, that: (1) By entering into the Dock
Workers' Agreement for Port -of Seattle containing unlawful preferential employ-
ment provisions and by actively participating in the enforcement of that provision
and -a similar provision in the Pacific Coast Longshore Agreement by refusing to
dispatch Clarence Purnell and Albert G. Crum, the Respondent Unions, and each
of them, engaged in, and are engaging in, unfair labor practices within the mean-
ing of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
Thereafter, each of the afore-mentioned Respondents filed answers admitting
certain allegations of the complaint but denying that they, or any of them, had
engaged in, or were engaging in, any unfair labor practices.
Pursuant to notice, a hearing was held in Seattle, Washington, on December
18, 1950,2 and from January 3 to and including January 9, 1951, before the under-
signed Trial Examiner duly designated by the Chief Trial Examiner. The Gen-
eral Counsel and each of the Respondents were represented by counsel and
2 Hereinafter referred to as General Counsel and the Board respectively. The term
General Counsel will also include the counsel for the General Counsel appearing at the
hearing.
2 On this date the hearing was recessed until -January 3, 1951, because of the excusable
inability of ILWU to be represented at that time.
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 307
acts ely participated in the hearing; Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties. At the conclusion of the hearing each of- the Respond-
ents,renewed, numerous motions previously denied to dismiss the complaint for
various reasons. These motions were taken under advisement and are disposed
of herein. The parties waived oral argument at the hearing but briefs have been
received, and considered, from all parties except Local 19.
After the close of the hearing, the General Counsel and counsel for the various
Employer Respondents each moved to have the transcript corrected. There hav-
ing been no objections to the proposed corrections, the undersigned hereby orders
the proposed corrections of the General Counsel marked as TX Exhibit 2 and
those of Employer Respondents' counsel marked as TX Exhibit 3, admitted in
evidence and the transcript corrected in accordance therewith.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF W. E. W. AND ITS EMPLOYER -MEMBERS ; AND OF THE
RESPONDENT EMPLOYERS
Waterfront Employers of Washington, W. E. W., is a nonprofit corporation
under the laws of the State of Washington, having its principal office in Seattle,
Washington. Firms directly or indirectly engaged as employers of labor in com-
mercial transportation or handling of goods by or over water, rail, truck, docks,
or warehouses are members of W. E. W. One of the purposes for which W. E. W.
exists is to represent its Employer-Members in collective bargaining relations
with labor organizations representing longshoremen and other shore employees.
W. E, W., at all times material here, has had as Employer-Members, among others,
Alaska Steamship Company, Alaska Terminal and Stevedoring Co., Luckenbach
Steamship Company, Inc., and Rothschild-International Stevedoring Company
Employer-Members of W. E. W. either operate oceangoing vessels engaged in the
transportation of passengers and freight or perform stevedoring services for
companies operating such vessels. During the 12-month period ending November
30, 1950, the Employer-Members of W. E. W. operating oceangoing vessels jointly
realized from the transportation of freight and passengers revenue in excess of
$1,000,000 of which more than 60 percent was realized from shipments between
ports in one State of the United States and ports in another State of the United
States or in foreign countries. During the same period the Employer-Members
of W. E . W., furnishing stevedoring services for steamship companies , performed
services valued in excess of $50,000 for companies operating vessels in interstate
and foreign commerce.
In its answer W. E. W. denied that it was an employer within the meaning of
Section 2 (2) of the Act. However, among other things, the evidence established
that W. E. W. negotiated collective bargaining agreements for its members, on
occasions allocated the employees among the various member-companies, acted
as the paymaster, and on the Federal withholding tax statements listed itself as
the employer of the longshoremen. Therefore the undersigned finds that W. E. W.
is the employer within the meaning of the Act.
Alaska Steamship Company, hereinafter referred to as Alaska Steam, is a
Washington corporation having its principal office in Seattle, Washington, where
it is engaged in the operation of vessels between ports in the United States and
ports in Alaska or between ports along the Pacific Coast of the United States.
During the 12-month period ending November 30, 1950, Alaska Steam has realized
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the transportation of freight and passengers in interstate commerce revenue
in excess of,$100,000.
Alaska Terminal and Stevedoring Co., hereinafter called Alaska Terminal,
is a Washington corporation having its principal office in the city of Seattle,
Washington, where it is engaged in furnishing stevedoring services to companies
engaged in operating vessels in interstate and foreign commerce . During the
12-month period ending November 30, 1950, Alaska Terminal furnished services
valued in excess of $50,000 to employers operating vessels in interstate and
foreign commerce.
Luckenbach Steamship Company, Inc., hereinafter called Luckenbach, is a
Delaware corporation having its principal office in New York City. It is
engaged in the operation of common carrier vessels between ports in the State
of Washington and ports in other States of the United States and in foreign
countries. During the 12-month period ending November 30, 1950, -Luckenbach
realized from the transportation of freight and passengers in interstate and
foreign commerce revenue in excess of $100,000.
Rothschild-International Stevedoring Company, hereinafter called Rothschild,
Is a Washington corporation having its principal office in Seattle, Washington,
where it is engaged in furnishing stevedoring services to companies engaged
in operating vessels in interstate and foreign commerce. During the 12-month
period ending November 30, 1950, Rothschild furnished services valued in excess
of $50,000 to employers operating vessels in interstate and foreign commerce.
Tait Stevedoring Co., Inc., hereinafter called Tait,'is a Washington corporation
having its principal office in Seattle, Washington, where it is engaged in furnishing
stevedoring services to companies engaged in operating vessels in interstate and
foreign commerce. During the 12-month period ending November 30, 1950, Tait
furnished services valued in excess of $50,000 to employers operating vessels
in interstate and foreign commerce.
The undersigned finds that each of the Respondents above mentioned is
engaged in interstate commerce within the meaning of the Act.
H. THE RESPONDENT LABOR ORGANIZATIONS
International Longshoremen's and Warehousemen's Union and Local 19,
International Longshoremen's and Warehousemen's Union are, and at all
times material herein have been, labor organiaztions admitting to membership
longshoremen employed by the other Respondents. Local 19 is affiliated
vi ith ILWU.
The undersigned finds that each of these Respondent Unions is a labor organ-
ization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The execution of the agreements
The 96-day water-front strike in 1948 on the Pacific Coast ended shortly after
December 6, 1948, when the various parties involved reached agreements among
themselves. One of these agreements known as the Pacific Coast Longshore
Agreement, hereinafter referred to as the Coast Agreement, was between ILWU
and Waterfront Employers Association of the Pacific Coast, subsequently
succeeded by Pacific Maritime Association, hereinafter referred to as PMA, on
behalf of various water-front employers' associations including Waterfront
Employers of Washington. This agreement bears date of December 6, 1948.
when by its own terms it became effective. But the parties did not formally
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 309
sign it until some subsequent date; although they initialed it on December 17,
and have acted in accordance with its terms ever since the return to work.
Although W. E. W. had authorized the negotiation of this contract, it did not
participate therein. After its negotiation, W. E. W. ratified it.
The preamble of the Coast Agreement reads as follows :
THIS AGREEMENT , dated December 6, 1948, by and between the Waterfront
Employers Association of the Pacific Coast, Waterfront Employers Associ-
ation of California, Waterfront Employers of Oregon and Columbia River,
Waterfront Employers of Washington, hereinafter designated as the
Employers on behalf of their respective members, and the International
Longshoremen's and Warehousemen's Union, hereinafter designated as
the Union.
Thereafter follow multitudinous provisions covering the range of labor
relations but, fortunately, only a few of these provisions are of interest to us here.
Section 7 of the Coast Agreement provides for the establishment of hiring
halls in each port, their joint operation and maintenance through a Port
Labor Relations Committee composed of an equal number of representatives
of the local Employers Association and the "Union," and the selection of the chief
dispatcher by a vote of the "Union," such chief dispatcher to qualify under
standards set by the Port Labor Relations Committee and to work under the
rules and regulations promulgated for that purpose by said committee. The
agreement also provides that "the Union" and the local Employer Association
are to defray the expenses of the operation and maintenance of these halls equally.
Subsection (d) of section 7, however, provides as follows :
(d) Preference
Preference of employment shall be given to members of the International
Longshoremen's and Warehousemen's Union whenever available. Prefer-
ence applies both in making additions to the registration list and in dis-
patching, men to jobs This section shall not deprive the Employers' members
of the Labor Relations Committee of the right to object to unsatisfactory
men (giving reasons therefor) in making additions' to the registration
list, and shall not interfere with the making of appropriate dispatching rules.
This Coast Agreement was supplemented by an agreement known as the
"Dock Workers' Agreement for Port of Seattle," hereinafter referred to as
the Dock Agreement, between W. E. W. and Local 19 which was executed by
these parties on February 26, 1948, and has been at all times thereafter in
full force and effect"
This Dock Agreement also provides for the establishment of a central hiring
hall front which all dock workers are to be dispatched to work opportunities in
almost identical language to that of section 7 of the Coast Agreement relating to
the dispatch of longshoremen. This hall likewise was to be jointly operated,
maintained , and paid for by the parties and supervised by the Port Labor Rela-
tions -JCommittee with a dispatcher similarly selected by Local 19, subject to
standards provided by the Port Labor Relations Committee. Section 8 (c) of
this Dock Agreement provides as follows :
This date does not appear in the instant record.
" Roughly the line between longshore and dock work is that longshore work consists of
the movement of cargo between ship and dock while dock work constitutes the movement
to and from the dock either preparatory to loading cargo on the ship or for delivery to
the consignee.
998666-vol. 98-53-21
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Preference
Preference of employment shall be given to members of the Union when-
ever available . Preference applies both in making additions to the regis-
tration list and in dispatching men to jobs. This Section shall not deprive
the Employers' members of the Port Labor Relations Committee of the right
to object to unsatisfactory men (giving reasons therefor ) in making additions
to the registration list, and shall not interfere with the making of appro-
priate dispatching rules.
In actual fact in the Port of Seattle, at least, all dock workers and longshore-
men were, and are, being dispatched from the same hiring hall. by the same
dispatcher . The Port Labor Relations Committee in Seattle was and is composed
of an equal number of representatives of W. E. W. and Local 19, and the cost
of the maintenance and operation of the hall is paid for by equal contributions
from W. E. W. and from Local 19.6
B. Conclusions as to the execution and enforcement
1. The 6-month limitation ( Section 10 (b) )
All the Respondents, both Employer and Union, have affirmatively pleaded
the 6-month limitation period of the Act as a defense to the charges filed in the
instant proceeding . Although the undersigned summarily dismissed the motions
based upon this plea at the hearing, he is now convinced that such a blanket,
ruling was erroneous in part and so the legal issues raised thereby must be
discussed at some length here. This will lead us to an intriguing , but unfortu-
nately almost fruitless , discussion of technicalities.
The portions of Section 10 (b) of the Act which are pertinent provide as
follows :
Whenever it is charged that any person has engaged in or is engaging in
any such unfair labor practice, the Board . . . shall have power to issue
and cause to be served upon such person a complaint . . . Provided, That
no complaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such charge is
made, .. .
6 On the Employers ' side the expenses of the hiring hall are paid for as follows : PMA
now collects from its member -companies a sum of money determined both by the tonnage
and the man -hour bases and deposits a part of that fund to the account of W. E. W.
which in turn deposits the Employers' share of the expense to the account of the Port
Labor Relations Committee which, in fact , pays the bills . PMA not having been in
existence at the time of the negotiation of the Coast contract is, therefore , not a signatory
to that agreement but has succeeded to the Interest of Waterfront Employers of the Pacific
Coast In that agreement . In their brief W. E W. and Respondent Employers indulge in
a highly technical argument based upon the fact that , as the funds ultimately originate
from PMA, W. E W is not responsible therefor To the undersigned this argument is
more hypertechnical than factual . Although Darrell Cornell , simultaneously PMA man-
ager for Seattle and president of W. E W (and an honest witness), testified that he
could determine at each moment of his working day from whom he was drawing his salary
at that particular moment, the evidence Indicated that PMA and W. E W. were actually
different divisions of the same general organization . The employer representatives on the
Port Labor Relations Committee were selected by W. E W. Essentially the difference
between PMA and W E. W. seems to be that PMA does the negotiating for the Employers
while W . E. W. acts generally as the paymaster for the various employers of longshoremen,
both members and nonmembers of W E W. W. E. W also does some representation of
employers in negotiations with Local 19. However , this seems to be a differentiation
without a real difference. The undersigned cannot agree with this contention made by
\V E W.
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 311
a. The Employers
In short, the complaint against the numerous Employer Respondents alleged
that they had committed unfair labor practices by (1) "entering into" the Coast
and Dock Agreements containing illegal preference-in-employment clauses and
(2) engaging in or "acquiescing" in a "practice" whereby the Unions were
permitted to, by means of the hiring hall arrangements, and did enforce the
illegal terms of those agreements by discriminatorily refusing to dispatch
Crum on January 29, 1949, and Purnell on February 3, 1949. In addition the
complaint alleged a violation by these Respondents of Section 8 (a) (2) by
giving the Unions financial assistance through their 50 percent contribution to
the operation and maintenance of the hiring hall.
It must be recalled that Crum filed his original charge against W. E. W. on
June 14, 1949, and Purnell his original charge against W. E. W., Luckenbach,
Alaska Steam, and Rothschild on June 22, 1949. All these charges claimed
discrimination based upon the hiring hall and the illegal Coast Agreement. The
other original and amended charges will be considered subsequently.
In order for a complaint to issue legally under the proviso of Section 10 (b)
the alleged unfair labor practice on which the complaint is founded must have
occurred 6 months or less prior to the filing and serving of the charge. Thus the
unfair labor practice as to Crum must have occurred on or after December
14, 1948, and as to Purnell on or after December 22, 1948.
Obviously the consolidated complaint herein was based upon (1) the execu-
tion of the Coast and of the Dock Agreements and (2) the enforcement of those
allegedly illegal documents.
It now becomes necessary to determine when, if ever, the alleged unfair labor
practices occurred.
The execution of an illegal agreement is a completed unfair labor practice,
if at all, upon the completion of the final act consummating that agreement.
In the usual case that act will be the physical act of the parties in signing the
agreement. However, even a determination of that date as it relates to the
Coast Agreement is fraught with difficulty here because the evidence in this
case shows that the parties had negotiated and reached agreement "in principle"
about November 25, 1948, that the Agreement was in full force and effect, but
unsigned, upon the return of the longshoremen to work on and after December
6, 1948, that the Agreement itself bears date of December 6, 1948, but that the
Agreement was not executed or initialed for and on behalf of the parties, of whom
W. E. W. was one, until December 17, 1948, and even then was not intended to be
the complete agreement. However, interpreting the execution of the Coast
Agreement in the light most favorable to the Complainants here, the under-
signed finds that the Coast Agreement was "entered into" or executed on
December 17, 1948, the day on which it was initialed, and that the unfair labor
practice based upon the execution of the Coast Agreement was completed on
that day.
Thus, under the phraseology of Section 10 (b) of the Act, the complaint
based upon the execution of the Coast Agreement could legally issue against
W. E W. in the case of Crum because his charge was filed just within the 6-month
period but could not legally issue in the case of Purnell because this unfair
labor practice had occurred a few days more than the allowable 6 months prior
to the date on which he filed his charges against the Employer Respondents.
The right to issue a complaint based upon the enforcement of an illegal agree-
ment is another thing The enforcement of a contract, unlike its execution, is
a continuous and continuing act. The unfair labor practice based upon enforce-
ment does not come into being until that agreement is enforced as to the par-
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticular complainant . Thus it was not until January 29 , 1949, according to the
allegation in the complaint ( or January 27, 1949, according to the evidence
introduced ) that the unfair labor practice based upon enforcement of the Coast
Agreement came into being, if at all, as to Crum and until February 3, 1949,
as to Purnell . In neither case, therefore , does the 6-month period bar the
issuance of the complaint based upon the enforcement of the Coast Agreement.
In addition , the Employer Respondents argue that , as no charge has been filed
specifically mentioning the execution or enforcement of the Dock Agreement
until September 21, 1949 , more than 6 months after the execution of that docu-
ment on February 26, 1949, no complaint based upon either execution or enforce-
ment of the Dock Agreement may legally issue because of Section 10 (b) of the
Act. On September 21, 1949, Purnell first mentioned the Dock Agreement in
connection with his case when he "amended " his charges against W. E. W.,
Luckenbach , Alaska Steam , and Rothschild and when he filed original charges
against Alaska Terminal and Tait . It was not until December 1, 1950, that
Crum "amended " his charges against W. E. W. to mention the Dock Agreement
specifically for the first time.
In filing his original charges against Alaska Terminal and Tait on September
21, 1949, Purnell was creating a new cause of action-a new liability against
a new Respondent-for an unfair labor practice which , if it occurred , took place
more than 6 months before . These original charges against Alaska Terminal
and Tait were based upon the same alleged unfair labor practices as set forth in
his previous charges against the other Respondents , namely, the discrimina-
tory execution and enforcement of the Coast Agreement as well as the dis-
criminatory execution and enforcement of the Dock Agreement. All these
matters having become completed unfair labor practices more than 6 months
before, no complaint could legally issue based thereon against these new Re-
spondents . Consequently , these were stale claims made without notice having
been given to these Respondents within the time required by the provisions of
Section 10 (b) and thus of the type intended to be barred by that section. The
undersigned will accordingly dismiss the complaint as to Respondents Alaska
Terminal and Tait. It is to be understood that this dismissal applies only to
the individual liability of these Respondents and not to any liability which may
arise as to them in their capacity as Employer -Members of W. E. W.
Regarding the amended charges filed by Purnell on September 21, 1949, against
W. E. W., Alaska Steam, Luckenbach, and Rothschild, the argument above made
does not hold because Purnell by amending his charges against these Respondents
was not creating any new cause of action or any new liability. The amended
charges filed against these last named Employer Respondents were in fact
amendments of previously made claims of liability merely setting forth additional
bases upon which the original claims of discrimination were grounded. No new
cause of action or liability was set forth for the first time in these amended
charges. These Respondents had previously been notified of the same claim of
liability within the period required by the statute and were merely being given
the benefit of additional facts relating to the same cause of action. The purposes
of Section 10 (b) had been satisfied when the original charges were filed and
served on June 22, 1949. To sustain the Respondents' contention here would
serve no useful purpose except to deprive a discharged employee of his rights
under the Act because of his inability to plead his cause in a charge with legal
exactitude and to reward Respondents for fraudulent dealing and ability at
concealment. The purpose of the charge is twofold : to set in motion the in-
vestigatory functions of the Board and to advise Respondents promptly of any
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 313
claim of discrimination so as to eliminate the bringing of stale claims which
Respondents cannot defend. An original charge may be amended to include
claims of a similar type and character closely related to those made in the original
charge. Such an amendment is not barred by the limitation mentioned in Section
10 (b) especially where, as here, the claim is the same in substance although
additional facts or a different foundation may be added . The undersigned , there-
fore, holds that Purnell 's amended charges against W. E. W., Luckenbach , Alaska
Steam, and Rothschild as well as Crum's amended charge against W. E. W. were
not barred by Section 10 (b) of the Act as they were in fact amendments of a
claim or cause of action of which the Respondents originally had notice within
the statutory period required by Section 10 (b).
The Employers appear to argue that the inclusion of any matter barred by
Section 10 ( b) in a complaint containing other matter not so barred thereby
requires the dismissal of the complaint in its entirety . Such is not the law.
The undersigned can agree with the argument of the Employers on the Section
10 (b) issue only so far as indicated above.
Now, having decided the limitations point adversely to these Respondents, the
undersigned will nevertheless dismiss the complaint as to Respondents Alaska
Steam and Luckenbach on their merits for the reason that the evidence shows
without contradiction that these two companies had not employed longshoremen
since July 17, 1947 , and September 1, 1948, respectively , but this dismissal, like
the previous dismissals , Is not to affect the liability , if any, of these Respondents
as Employer-Members of W. E. W.
At the hearing the undersigned considered the inclusion of the individual
Employer Respondents as exceedingly strange as each of them was apparently'
an Employer-Member of W. E. W. Apparently the pleader included these Em-
ployers as individual Respondents on the theory that Purnell had made applica-
tion for employment with, and had been discriminatorily refused employment by,
each of these Employer respondents. The evidence adduced on this point at the
hearing-fell far short of that- required . The- testimony as to the so-called appli-
cation, the refusal , and the agent of the Respondents involved was so highly
indefinite , abstract , and vague as to be worthless . Because of the total in-
adequacy of the evidence adduced on that theory , the undersigned will dismiss
the complaint as to all the Employer Respondents except W. E. W. in their indi-
vidual capacities but not as to any liability which may accrue to them as Em-
ployer-Members of W. E. W.
W. E. W. also argues that Crum 's charge filed on June 14, 1949, gave it no
notice that the Coast Agreement was to be called in issue and that his subse-
quent amendment in December 1950 was the first notice it had that the Coast
Agreement was an issue . This highly technical argument is without merit.
b. The 6-month limitation-Unions
Both ILWU and Local 19 moved for the dismissal of the complaint as to each
based upon Section 10 (b) of the Act.
On February 21, 1949, Purnell filed and served his original charge against
Local 19 alone, and on June 22 , 1949, "amended" this charge by adding, among
other things, ILWU as a party respondent. On the other hand, by some queer
quirk, Crum filed his original charge on June 14, 1949, against ILWU alone,
which he, in turn , "amended" on December 1, 1950, by adding Local 19 as a
party respondent.
By each of these so-called "amendments ," the Complainants attempted to add
an entirely new party respondent thereby creating a new cause of action and a
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new liability . Since the Coronado Coal cases,' it has been well-settled law that
the mere affiliation of two labor organizations is an insufficient base upon which
to predicate liability , even as it is equally clear from the congressional debates
on the Act that liability of the organization is not created from mere member-
ship of the actor in that organization . Here the evidence is clear that , although
affiliated with ILWU, Local 19 is an autonomous and separate distinct entity
from ILWU.
Thus, in the charge of Crum, the so-called amendment of December 1, 1950,
is in fact not an amendment because of the fact that it creates a new cause of
action, a new liability created by the addition of a new and distinct party and
thus. in truth and in fact , is an original charge as to that new party, Local 19.
But, as to new material added by this amendment relating to the old original
cause of action against ILWU, this amended charge is actually an amendment.
As this so -called amended Charge of December 1, 1950, is in fact and original
charge against Local 19, Section 10 ( b), the 6-month limitation, is applicable
thereto barring the issuance of a complaint based on any unfair labor practice
occurring beyond the 6-month period prior to the filing and service of the charge.
Clearly, therefore , as to Local 19, the complaint based upon Crum's charges of
December 1, 1950, founded upon the execution of both the Coast Agreement and
the Dock Agreement as well as the discriminatory enforcement as to him occur-
ring on January. 29, 1949, is barred by the limitation of the statutory provision.
As to ILWU, however, the complaint being based upon a charge originally filed
within the statutory period after the commission of the unfair labor practice is
proper, no new cause of action having been added by the amendment. So, in
accordance with the above , the undersigned will grant the motion of Local 19
and dismiss the complaint as to it insofar as it relates to the allegations of
discrimination against Crum.
On February 21, 1949, Purnell filed his original charge against Local 19 alone,
specifically mentioning only the Coast Agreement and the hiring hall . The com-
plaint based upon this charge is not barred by Section 10 (b) either as to the
execution or enforcement of the Coast Agreement . However, due to the eccen-
tricities of the pleading herein, the execution of the Coast Agreement is not
alleged to have been an unfair labor practice as to the Unions so that there can
be no finding that such execution was an unfair labor practice . On September
21, 1949, Purnell purported to amend this charge by adding ILWU as a party
respondent . For the reasons discussed above and the fact that the alleged unfair
labor practices of ILWU referred to therein had occurred more than 6 months
prior to the filing of this "amended" charge, the complaint against ILWU on the
charges by Purnell is barred by Section 10 (b) of the Act. The undersigned
will dismiss the allegations of the complaint relating to the alleged unfair labor
practices against Purnell so far as Respondent ILWU is involved.
These Respondents also contend that the inclusion of the Dock Agreement as
an unfair labor practice in these so-called amended charges is also barred even
as against the party originally named as the Respondent . For the reasons given
above in the discussion of the same contention made by the Employers, the
undersigned cannot agree.
Due to this extraordinary method of cross-filing of these charges by the two
complainants , neither Respondent Union can be finally dismissed from this case
nor can any of the claimed unfair labor practices be eliminated from the com-
plaint farther than the undersigned has indicated above.
256 U. S. 344 and 268 U. S 295.
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 315
3. Violations-Employers
a. Preference in employment, execution
An employer who grants any preference of employment based 'upon union
membership in a collective bargaining agreement with the authorized bargaining
agent of the employees in an appropriate unit which is more restrictive than
that permitted in the proviso of Section 8 (a) (3) ° or without the holding of an
election as provided in Section 9 (e) thus complying with, the so-called procedural
safeguards of Section 9 (e) per se violates Section 8 (a) (1) of the Act. See
Pacific Maritime Association, 89 NLRB 1278. The views expressed by the under-
signed in the Intermediate Report in that case appear to be equally applicable
to this one.
In the instant case there can be no question but that the W. E. W. violated
both the substantive and procedural requirements of the Act in granting the
Unions the preference-of-employment clauses of the Coast as well as the Dock
Agreement and thus violated Section 8 (a) (1).
As this preferential treatment granted on the basis of union membership
creates a discriminatory employment practice thus encouraging union member-
ship, the execution of these Coast and Dock Agreements also violates Section 8
(a) (3) of the Act.
b. Financial assistance
The complaint also alleges that W. E. W. violated Section 8 (a) (2) by giving
financial assistance to ILWU through the payment by the Employers of 50 percent
of the cost of operating and maintaining the hiring hall. The Employers engaged
in hypertechnicalities in the argument advanced in their brief when they argue
that, as the money used to defray this 50 percent of the cost of the hiring hall
originated from PMA through an assessment upon its members based both on the
tonnage and the man-hours of labor, W. E. W. has not contributed and, therefore,
has not violated the Act. True, the money comes from PMA originally but the
facts show that PMA deposits this money to the account of W. E. W. who, in turn,
deposits the Employers' share of the hiring hall costs to the account of the Port
Labor Relations Committee which, in turn, defrays the expenses of the hiring
hall and the dispatchers therefrom. In truth and in fact, therefore, the employer
contribution is made by W. E. W. But the facts also prove that this W. E. W.
contribution is not made to a labor organization but to a separate entity composed
of representatives of both W. E. W. and the Union. It can hardly be said that
this contribution is a contribution made to a labor organization. Conceivably
it might be argued that the Unions secure some benefit from the existence of the
hiring hall and, therefore, this contribution amounts to indirect financial support
and benefit to a labor organization. This same argument could just as validly be
made, and with about as much sense, regarding the wages paid by an employer
to any union man for his labor, a part of which goes to pay his union dues. To
have any modicum of validity this argument must be based upon the assumption
that the unions are the only organizations benefiting from the hiring hall. This
assumption is not based on fact. The hiring hall practice is also beneficial to
I "Provided, That nothing in this Act . . . shall preclude an employer from making an
agreement with a labor organization (not established, maintained, or assisted by any action
defined In section 8 (a) of this Act as an unfair labor practice) to require as a condition
of employment membership therein on or after the thirtieth day following the beginning
of such employment . . . and (ii) If, following the most recent election held as provided
In section 9 (e) the Board shall have certified that at least a majority of the employees
eligible to vote In such election have voted to authorize such labor organization to make
such an agreement : . . .
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employers. The Employer-Members of PMA and W. E. W. secure a definite
grid pro quo for their contribution to the hiring hall totally unrelated to any
attempt to dominate or interfere with ILWU or Local 19. For anyone with-any
reading knowledge of Pacific Coast waterfront history, past or present, to even
suggest that PMA or W. E W. is dominating or interfering with ILWU or
Local 19 by these payments to the support of the hall or that ILWU or Local 19
are being dominated or interfered with thereby is being so completely unrealistic
as to be laughable. The contributions by W. E. W. are being made to an inde-
pendent body, not a labor organization as defined by the Act, for a quid pro quo
completely independent of any attempt to dominate or interfere with any labor
organization.
Theoretically, but again completely unrealistically, it might be said that the
execution of the Coast and the Dock Agreements with their illegal preference
clauses amounts to a contribution of "other support" to the Union. Nothing,
however, is to be gained by such an indirect, technical violation of the Act.
The undersigned will, therefore, recommend that the allegation that W. E. W.
has violated Section 8 (a) (2) of the Act be dismissed.
4. Violations-Unions
a. Preference in employment, execution
In the Hiring Hall cases, Trial Examiner Rogosin held correctly, in the esti-
mation of the undersigned, and the Board sustained him, that the execution and
enforcement of the preferential employment clause in the Coast Agreement by
ILWU was a violation of Section 8 (b) (2).
However, as regards the liability of the Unions in the instant case, the question
of the execution of the Coast Agreement is not at issue here as not so pleaded
in the complaint. But the Hiring Hall case, infra, is authority for the proposi-
tion that the execution and enforcement of a contract containing an illegal pref-
erential employment clause such as contained in the Dock Agreement is a violation
of Section 8 (b) (2) by the Union so executing the agreement.
Until the very recent (February 8, 1951) decision of the Board in the Red Star
Express case,' it has been well-settled law that Section 8 (b) (1) (A) was
directed against the use of physical violence and coercion by a union. Although
the argument and authorities cited in the Intermediate Report in that case
hardly seem to justify the overturning of that established law, the Board in that
case held that the mere execution (without the element of enforcement) by a
union of a contract containing illegal union-security clauses violates Section 8
(b) (1) (A) also.
The undersigned, being bound by the new Board policy as expressed in the
Red Star Express case, therefore, finds that by the mere execution of the Dock
Agreement with its illegal preference-in-employment clause, Local 19 violated
Section 8 (b) (2) and 8 (b) (1) (A).
As ILWU is not a signatory to the Dock Agreement, the undersigned will,
therefore, recommend that the complaint so far as it relates to the execution of
the Dock Agreement be dismissed as to ILWU.
Exactly what specific charges of illegality-other than the preferential employ-
ment clause-the pleader intended to encompass in his oft-repeated phrase "a
practice wherein [the Unions] have been permitted to exercise control over the
selection of persons dispatched or to be dispatched from the central hiring hall"
in the Port of Seattle is not clean from the pleadings, the proof, nor the brief.
8 93 NLRB 127.
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 317
In the first of this series of cases against ILWU, being the famous "Hiring
Hall" case, 90 NLRB 1021, the General Counsel in that case specifically attacked
the legality of the hiring hall provided for in the Coast Agreement on a number
of specific grounds. Although the Board failed to pass upon the legality of these
various provisions, Trial Examiner Irving Rogosin, in his Intermediate Report
in that case, succinctly, and in the opinion of the undersigned correctly, made
findings in that respect as follows, which the undersigned hereby adopts and
extends to cover the contentions to the Dock as well as to the Coast Agreement :
It has been found that the hiring hall, under the joint control and super-
vision, of employer and union representatives, as a device for recruiting,
hiring, and dispatching employees, is not intrinsically violative of the Act.
Similarly, it has been found that maintenance of a roster or registration list
of qualified employees, which employers agree to use in dispatching employees
according to a rotary system, without regard to union membership or affilia-
tion, is equally compatible with the Act. As a corollary, agreement by em-
ployers to permit the employees' exclusive bargaining agent to participate in
determinations regarding additions to or removals from the registration list,
insofar as such determinations are not influenced by considerations of union
membership or affiliation, does not, per se, conflict with the Act. So, too,
delegation by the employers to the duly recognized bargaining representative,
of the right to select dispatchers, subject to control and supervision of a
joint employer-union committee, under circumstances and subject to quali-
fications already mentioned, does not contravene the provisions of the Act.
On the other hand, it has been found that provision for preference of em-
ployment based on union membership is clearly proscribed by the Act.
The undersigned agrees that a hiring hall can exist legally under the Act-
but not with a preferential employment clause such as the Coast and Dock
Agreements include.
The undersigned, however, believing that any discrimination in the enforce-
ment of a contract is subject to proof as in any other case, must specifically
reject the following subsidiary findings made by the Trial Examiner in the
Hiring Hall ease :
It is reasonable to infer, and the undersigned infers and finds, that the
Respondents [Unions] contemplated that, even without union preference,
the hiring hall provisions, if continued, would be administered and enforced
in the future so as to discriminate in favor of members of the Union and
against non-members, in violation of the Act.
This type of alleged discrimination, to wit, in the enforcement of the preference-
in-employment provisions, will be treated in the next section of this Report.
C. The enforcement of the Agreements
1. Albert G. Crum
Finally we come to the nub of this case.
Albert G. Crum commenced working on the Seattle water front in April 1936,
became both a registered longshoreman and a member of Local 19 in 1939. Dur-
ing the larger portion of his work upon the water front, Crum has been a "gang"
man, i. e., a regular member of a permanent gang which is dispatched as a unit
and works as a unit whenever so dispatched.
In Seattle, all dispatching of longshoremen is done from the hiring hall which
is operated and maintained jointly by Local 19 and W. E. W., as provided in the
contracts under discussion above. The actual operations of the hall are under
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the supervision and direction of the, Port Labor Relations Committee, composed
of an equal number of representatives from Local 19 and W. E. W. Although
the chief dispatcher is elected by Local 19, he must qualify under standards set
up by the Port Labor Relations Committee and is thereafter, as are all the other
employees, the employee of and subject to the direction of the Port Labor Re-
lations Committee, which pays all salaries, including that of the chief dispatcher,
and the hall expenses from funds provided equally by Local 19 and W. E. W. The
hall and its employees operate under rules and regulations promulgated by the
Port Labor Relations Committee.
The actual dispatching is done by the chief dispatcher and his assistant from
various boards which contain the names of all the registered longshoremen of
the port listed in order. There are two such boards : One called the "gang" board
on which the regular gangs are listed, and another called the "plug" board
where the individual longshoremen are listed and from which they are dispatched.
The gangs and the individual longshoremen are each dispatched in rotation
from their individual boards. Members of gangs are not required to "plug in,"
i. e., indicate their availability for work opportunities, but are privileged to
telephone the hall to determine whether or not their gang has been dispatched.'
The individual longshoreman, however, is required to "plug in" personally on
the board each morning to indicate his availability and, as his name is called
over the loudspeaker when his name comes up in rotation, he must report to
the dispatcher to receive his work assignment. The dispatching is done in
rotation in order that the earnings of the individual longshoremen shall be
approximately equal.
In December 1948, following the water-front strike of September to December 6
of that year, Crum was called before the executive board of Local 19 on a charge
of failing to stand his share of the picket duty during the strike. The executive
board found him guilty and assessed a large fine against him. The president of
Local 19 told Crum that his name "will be taken off the work list from this date
on until the fine is paid."
The day following the meeting of the executive board, Crum went to the office
of the secretary of Local 19, Bill Clark, and raised the question with him of his
right to work for 30 days as permitted by the constitution regardless of his failure
to pay the fine. While they were talking in the office, Bill Gettings,'ILWU Seattle
representative, walked in, was told of the constitutional objection raised, and
agreed with Crum's interpretation thereof and said : "Yes, the boys have got that
right [to work for 30 days before having to pay the fine]-you call Bill-and tell
him not to bug a those men for 30 days." Gettings then told Crum to go back
to work with his old gang for 30 days.1°
Crum thereupon continued to be dispatched to work as usual. He was working
on January 27, 1949, on an Alaska Steamship boat when this work was unexpect-
edly terminated for some reason and all the longshoremen working thereon were
laid off.
As was customary with gang men, Crum telephoned the hall the next few days
to find out if his gang had been dispatched. For several days Crum was told
that his gang had not been dispatched-which was not unusual. Finally one
day after the expiration of the 30-day period when he called the dispatcher's
office, he was told : "Crum, there is no need of your calling up any more. There
is a bug behind your name, and you won't be dispatched with your gang until
the fine is paid."
A "bug" is a notification of unpaid dues, fines, etc., which is placed upon the board
at the hiring hall opposite the name of the delinquent longshoreman.
10 This is the only evidence of any participation by ILWU in the enforcement of the
contracts.
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 319
Sine, that time Crum has not been dispatched, nor has he telephoned to the
hall, nor has the attempted to plug in on the board to denote his availability
for work.
On March 9, 1949, Local 19 and W. E. W. entered into an agreement referred
to as "Working and Dispatching Rules for the Port of Seattle." By its preamble,
this agreement was made a part of the coastwise Longshore Agreement of Decem-
ber 17, 1948. Rule No. 17 of these rules provides as follows : "No man is to be
dispatched for work when there is a penalty against him "
A few days later, Crum visited Darrell Cornell and asked if W. E. W. could
do something about having him reinstated in good standing with Local 19.
Cornell promised to do whatever he could for Crum if his name ever came up
before the Port Labor Relations Committee after telling Crum that there was
nothing against him in the W. E. W. files.
At some other indefinite time Crum inquired of the "superintendent or a dock
foreman or something" for Alaska Steam" whether Crum "could work for him,"
"Is there anything against me?" "Will you give me a job here?" The superin-
tendent said that the only way he could give Crum a job was through dispatch
from the hiring hall.
Crum asked another shipping man if he would sign a statement for him to
the effect that his company would hire him if sent out by the hiring hall. This
individual, whose position and company was highly indefinite, said that he would.
This statement was not produced at the hearing Crum made the same inquiry
of several other representatives of the other shipping companies and received
much the same reply from each.
On April 20, 1949, upon a motion of the representatives of Local 19, the Port
Labor Relations Committee canceled Crum's registration as a longshoreman for
the Port of Seattle on the ground that he was a mere casual worker on the water
front. This motion and decision were made in accordance with the established
practice of the Port Labor Relations Committee which, as a routine matter,
checked the earningsof longshoremen on occasions and deregistered those whose
earnings indicated the casual nature of their work on the water front.
The facts show that Crum apparently was a full-time longshoreman from 1936
to 1944 when he became a full-time employee of Griffith & Sprague Stevedoring
Company, taking care of their gear locker where the longshore gear is cared
for. Technically, working in a gear locker is not longshore work and ILWU
does not represent such employees. Men are not dispatched from the hall for
this type of work.
During the year 1944 Crum earned a total of $1,740.09, of which $850.12 was for
work performed for Griffith & Sprague. During the last half of the year the record
shows that Crum earned the sum of $27.
In 1945 Crum earned $4,976.90, all of which he earned as an employee of
Griffith & Sprague in the gear locker. .
In June 1946 Crum purchased a 220-acre farm in Idaho where he harvested the
hay crop that year. His total earnings for that year for longshore work amounted
to $336.32. He also earned the sum of $627.25 from Griffith & Sprague.
Crum leased the Idaho farm for the year 1947. During that year he earned
$1,876.57 from W. E W.12 and the sum of $936 43 from Griffith & Sprague. For a
period of 8 weeks, Crum was prevented from working by a broken foot. During
that time he apparently was on the farm in Idaho.
11 The uncontradicted evidence is that Alaska Steam had not hired any longshoremen since
July 17, 1947.
ra The average earnings for a longshoreman in Seattle for the year 1947 amounted to
$3,712.58
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the year 1948 Crum spent practically all of his time on the farm, returning
to Seattle only when there was no more farm work to be done. He earned only
$1,072.10 from W. E. W., all of which except approximately $300 was earned
prior to April 1n Apparently he was on the Idaho farm thereafter except for a
few days in August when he returned to Seattle and dropped into the hiring hall.
The dispatcher there asked him to take a job but Crum said that he was only in
town for a few days and did not want to work. Upon the insistence of the dis-
patcher, Crum finally took a job which was supposed to last for approximately
4 hours, but which, due to a showdown, lasted such a length of time that he
actually earned $122. His remaining earnings of $186.19 were for work after
the conclusion of the strike on December 6, 1948. The remainder of his time that
year was spent upon the Idaho farm.
Seattle longshoremen averaged between $450 to $550 for longshore work per-
formed during the strike but Crum earned nothing.
2. Clarence Purnell
P
Purnell had been doing longshore work "off and on" since 1942 when he became
a registered longshoreman in Seattle and, a member of Local 19. When he
worked, he worked from the "plug board," I. e., as an individual longshoreman.
Sometime after the close of the strike in December 1948, Purnell was brought
before the executive board of Local 19 on charges of having failed to do the
.required amount of picket duty and was ordered to pay a large fine within 30
days. He was also told at that time that he had 30 days to work before he had
to pay the fine. Due to poor health, Purnell did no work during this period.
In January 1949, Purnell sought from Dispatcher-Clerk Laing of the hiring
hall a statement which would assist him in drawing his compensation benefits
and in getting another job. Laing refused to give him the certificate of avail-
ability 1° requested and also told him that he had 30 days in which to work without
having to pay the fine. Purnell answered that he was not physically able to work.
The last work which Purnell performed on the water front was in September
1948. After that he went to Phoenix, Arizona.
Purnell admitted that he did not work after his meeting with the executive
board of Local 19 nor did he go to the hiring hall and plug in on the board because
he did not want to work in the cold and wet of that winter. He testified that he
was sick and could not stand the bad weather. He was never plugged in on the
board in the hiring hall to denote his availability for work since September 1948.
However, in January, Purnell, like Crum, did phone Darrell Cornell and ask
him for a statement similar to the one which he had requested from the dispatcher-
clerk. Under no interpretation of this conversation could it be regarded as a
request for work. In fact Purnell did not want work. His name is still on the
plug board and the dispatcher testified, at least, that if Purnell had plugged in in
the customary manner, he would have been, and would still be, dispatched. As
Purnell never tested the truth of this testimony, there is no proof to the contrary.
Purnell, again like Crum, inquired of certain employer representatives if they
had anything against him or his work and was assured in each instance that
there was nothing.
Sometime In the early fall of 1948, Purnell bought a barber shop. He told a
friend that he had bought it so that he would not have to work outside in the
bad weather. He operated this shop until April 1950 when he sold it, but a few
is The average earnings in 1948 of the Seattle longshoremen was $2,755 05.
i} This certificate that the applicant was available for work is necessary in order to draw
unemployment compensation benefits in the State of Washington.
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 321
months later opened up another and larger barber shop. During part of this time
he also worked at the airport because the work there was inside work and he
was not bothered by the bad weather.
3. Conclusions
In order for there to be found a discriminatory refusal to employ, it is axiomatic
that the individual workman must have been an applicant for employment for
obviously a man cannot be refused employment where he has not applied for it.
It is equally obvious that from September 1948 Purnell never applied for em-
ployment on the water front. Nor, according to him, was he physically able to
accept it if it had been offered. While the undersigned admits to large doubts
as to the accuracy and truth of the testimony that if Purnell plugged in on the
board thereby making his application for work he would be dispatched, it would
be pure speculation and surmise for the undersigned to find to the contrary on
the evidence before the undersigned. While it is uncontradicted that Purnell
was told that he had 30 days to work before he had to pay his fine, there is no
showing here that Purnell, in fact, would not have been dispatched. The only
way in which the truth of that could have been tested would have been for
Purnell to make an application for work, i.. e., to plug in on the board, something
which he never did after September 1948.
Although Purnell looked at the time of the hearing as though he were physically
able to work on the water front, there is no showing as to when he became able
to do so. Purnell's own testimony proves him to have been physically unable to
accept such employment in January 1949.
For the above-assigned reasons the undersigned believes, and therfore finds,
that Purnell was not discriminated against by either Local 19 or W. E. W. His
charge against ILWU, of course, was barred by Section 10 (b).
The same reasoning does not apply to Crum because after the conclusion of
his 30-day period he was actually told by the dispatching office that he would
no longer be dispatched with his gang until his fine was paid. His acceptance of
this statement over the phone was more docile than one would expect. It is also
to be recalled that in August 1948, the dispatcher had been forced to beg Crum
to accept work on the water front as a favor to the Union because there were too
few men in the hall to fill all of the work opportunities available. At this time
Crum had baldly stated that he did not want work and he had appeared at the
hall for a social visit only. He had become a farmer. He did not return to
Seattle after this short visit in August until after he could no longer work on
his farm due to the weather. And in early 1950 he had returned to the farm
again as soon as the weather permitted. It may well be queried how seriously
Crum was an applicant for work in December and January.
Since 1944 Crum had been a sporadic and casual worker on the water front.'
His work in the gear locker for Griffith & Sprague is not technically water-front
work although definitely appended thereto However, this type of employment
is completely different and divorced from that of the regular water-front employee
dispatched from the hiring hall. In 1945 he earned nothing from water-front
work, his whole earnings that year coming from his work in the gear locker for
Griffith & Sprague. In 1946 he became a farm owner and thereafter a good part
of his time has been spent in Idaho on that farm. His earnings on the water
front since then have been less than half the average earnings of the longshore-
men on the Seattle water front. Obviously Crum told the dispatcher the truth
in August 1948 when be said that he did not want work on the water front. He
was, in fact, a farmer.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has long been customary on the Seattle water front, especially in times
when any and every Tom, Dick, and Harry is not practically impressed into
service to try to move the cargo somehow, to prefer and keep the steady full-time
longshoremen and to eliminate the casual longshoremen from employment.
Every business prefers steady employees. Crum clearly fell into the class of
employees whom good business practice would tend to eliminate. No unfavorable
implication regarding Crum should be drawn from the above remark for the
undersigned intends only to convey the idea that Crum's interest by this time
lay at the farm and not in his casual work on the water front. As employees,
there were no complaints against either Crum or Purnell. But the fact remains
that Crum no longer was to be counted on as a steady employee on the water
front.
On April 20, 1949, acting upon the motion of the representatives of Local 19,
the Port Labor Relations Committee voted unanimously in accordance with the
established practice to deregister Crum on the ground that he was a part-time
worker in the industry. On the record here, the undersigned finds that this
decision was justified and in accordance with established practice.
But the fact remains that on January 27, 1949, Crum was refused employment
as a longshoreman because his membership had been terminated for reasons
other than the failure to tender the periodic dues and initiation fees uniformly
required as a condition of acquiring or retaining membership and in order to
encourage membership in Local 19. This refusal constitutes a violation of
Section 8 (a) (3) and 8 (b) (2) and 8 (b) (1) (A).
But the W. E. W. and its Employer-Members argue in their brief that they
cannot be held responsible for any such discrimination because they had no
knowledge or information that the dispatcher was discriminating against any
employee nor did they knowingly acquiesce in any such "practice." The short
answer to this argument is that, although elected by Local 19, the dispatcher is
the employee of the Port Labor Relations Committee and thus the agent of both
W. E. W. and Local 19 for whose acts W. E. W. and Local 19 are responsible.
ILWU, on the other hand, argues that it is not responsible because it had no
part in the enforcement of these contracts at all. Local 19 does not advance
any similar contention, which, under the facts of this case, is just as well.
ILWU did negotiate the Coast Agreement but the execution of that agreement is
not alleged in the complaint to be an unfair labor practice so far as ILWU is
concerned, the complaint only charging ILWU with an unfair labor practice in
the enforcement of that and of the Dock Agreement. The facts show without
contradiction that Local 19 and W. E. W., and they alone, enforced these con-
tracts and promulgated the rules contemplated thereunder. Local 19 and
W. E. W. composed the Port Labor Relations Committee through which they
operated the hiring hall. Local 19 and W. E. W. shared the expense of the
operation and maintenance of that hall jointly. ILWU played no part in the
actual operation and maintenance of the hall nor in the enforcement of the
contracts here involved.
In the Sorce and Stafford cases" the Trial Examiner found that the Coast
Agreement "contemplates that it will be carried out in actual practice, so far
as ILWU interests are concerned, by representatives of its local union in each
port." From this the Examiner found that the union representatives in the
Port Labor Relations Committee were in fact the agents of ILWU for whose
actions ILWU was responsible. It is true that ILWU negotiated the Coast
Agreement which provided for the establishment of the hiring halls under the
11 Cases Nos 20-CB-87 and 20-CB-89. This is the second ' of the series of cases against
ILWU.
INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 323
joint operation and management of the local Employers Association and "the
Union." The Coast Agreement also provides that the registration and the dis-
patching rules for the hiring hall should be promulgated by the Port Labor
Relations Committee composed of representatives from the local Employers Asso-
ciation and "the Union." The Examiner in the Sorce case, therefore, interpreted
the word "Union" as it was defined in the Coast Agreement to mean the ILWU.
From a technical reading of that agreement, the word "Union" as used therein
has to be read as "ILWU" for the reason that the ILWU is the only party to
the contract, the locals not having been mentioned therein. However, inter-
preted in the light of actual practice under the contract, the representatives
of the "Union" on the individual Port Labor Relations Committee were repre-
sentatives of Local 19, the rules for the operation of the hall and the dispatching
of longshoremen were negotiated by representatives of Local 19 with representa-
tives of W. E. W., the dispatcher was elected by Local 19, and the "Union's"
share of the expenses were paid by Local 19. As noted above the only action
taken by any representative of ILWU in this case occurred when Bill Gettings
was requested to give his advice on the interpretation of a section of the con-
stitution of Local 19 by the secretary of Local 19 and Crum and thereupon did
so. In truth and in fact, ILWU-played no part in the enforcement of the Coast
Agreement. While the interpretation made in the Sorce case is technically cor-
rect, it is a most strained interpretation when viewed in the light of the actual
facts. Where local unions are autonomous bodies as they are here, it has long
been the law that liability may not be found from the mere affiliation of two
separate entities.10 Nor would mere membership in ILWU of the representa-
tives of Local 19 make those individual members agents of ILWU. This is clear
from the legislative history of the Taft-Hartley Act.
The undersigned, therefore, finds in conformity with the facts that ILWU
did not enforce or assist in the enforcement of the Coast Agreement here nor of
the Dock Agreement to which ILWU was not even a signatory. In view of these
findings the undersigned will recommend that this complaint in its entirety be
dismissed as to ILWU.
However, it is clear, and the undersigned finds, that W. E. W. and its Employer-
Members discriminated in regard to the hire and tenure of employment of
Albert G. Crum on January 27, 1949, in violation of Section 8 (a) (3). But due
to Section 10 (b) the undersigned cannot find that Local 19 caused W. E. W. to
so discriminate in the action mentioned above in violation of Section 8 (b) (2)
and 8 (b) (1) (A).
However, as indicated above, the undersigned also finds that Crum was
deregistered by the Port Labor Relations Committee on April 20, 1949, for non-
discriminatory reasons and in the usual course of operations and that the dis-
crimination against Crum ended as of April 20, 1949.
As indicated above the undersigned finds also that neither W. E. W. nor Local
19 violated the Act by their actions in the Purnell matter and will, therefore,
recommend that the complaint be dismissed as to both of these Respondents in
this matter.
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring in
connection with the operations of the Employer set forth 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 ob-
structing commerce and the free flow of commerce.
11 Coronado Coal cases, supra
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondents W. E. W. and Local 19, and each of them,
have engaged in and are engaging in certain unfair labor practices, the under-
signed will recommend that each of them cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
As the record amply demonstrates that Respondent W. E. W., by executing
the Dock Agreement and by ratifying the Coast Agreement, and Respondent
Local 19, by executing the Dock Agreement, each of which agreements contained
clauses granting preferences in registration and in employment to longshoremen
on the basis of union membership which are illegal under the Act, and each of
said Respondents, by the enforcement of such illegal preference clauses, have
discriminated or attempted to discriminate in the hire and tenure of employment
of longshoremen, dock workers, and applicants for employment, the undersigned
will recommend that these named Respondents, and each of them, cease and
desist from giving effect to such preferential clauses in the Coast Agreement of
December 17, 1948, and the Dock Agreement of February 26, 1949, or to any
extension, renewal, modification, or supplement thereto, or to any superseding
contracts which, by their terms or in their performance, require the Respondents
or their agents, the dispatchers in the hiring hall in Seattle, Washington, to dis-
criminate in regard to the hire or tenure of employment or any term or condition
of employment of any longshoreman or dock worker or applicant for such employ-
ment except in accordance with the proviso in Section 8 (a) (3) of the Act. In
order that those charged primarily with the responsibility of enforcing such an
order, to wit, the dispatchers in the Seattle hiring hall, may be fully aware of
their duties in this respect, the undersigned will recommend that the Respondents
W. E. W. and Local 19, and each of them shall separately notify all the dis-
patchers of the Port Labor Relations Committee at the hiring hall in Seattle to
the above effect and instruct them further that they are in the future not to
discriminate among longshoremen and dock workers in their hire or tenure of
employment in any way based on membership or nonmembership in Local 19.
Having also found that Respondent W. E. W. discriminated against Albert
G. Crum on January 27, 1949, the undersigned will recommend that this Respond-
ent reimburse him for any loss of pay he may have suffered by reason of the
discrimination against him on that day to April 20, 1949, when the Port Labor
Relations Committee legitimately decided that Crum should be deregistered as a
longshoreman based upon the casual nature of his work. In computing the
amount of back pay due to Albert G. Crum, the customary formula of the Board
set forth in F. W. Woolworth Company, 90 NLRB 289, shall be applied.
Upon the foregoing findings of fact and the entire record in the case, the
undersigned makes the following :
CONCLUSIONS OF LAW
1. Waterfront Employers of Washington and its Employer-Members are em-
ployers within the meaning of Section 2 (2) of the Act.
2. International Longshoremen's and Warehousemen's Union, and Interna-
tional Longshoremen's and Warehousemen's Union, Local 19, are labor organi-
zations within the meaning of Section 2 (5) of the Act.
3. W. E. W., by executing and enforcing the Coast and Dock Agreements, and
by discriminating in regard to the hire and tenure of employment of Albert G.
Crum, has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (a) (3) and 8 (a) (1) of the Act.
CALIFORNIA WILLYS 325
4. Local 19 , by executing the Dock Agreement with its illegal preference-in-
employment clause and by attempting to cause the Employers to discriminate
in regard to the hire and tenure of employment of longshoremen , dock workers,
and applicants for employment in violation of Section 8 (a) (3) of the Act, has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
5. W. E. W. and Local 19, by restraning and coercing employees and prospective
employees of the Employers in the exercise of the rights guaranteed in Section 7
of the Act , have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and 8 ( b) (1) (A), respectively , of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
7. ILWU has not violated the provisions of the Act.
[Recommendations omitted from publication in this volume.]
SIDNEY MILLER, EDWARD GINSBERG, AND Louis GINSBERG, CO-PARTNERS
D/B/A CALIFORNIA WILLYS and INTERNATIONAL ASSOCIATION OF
MACHINISTS, DISTRICT LODGE No. 94, LOCAL LODGE No. 1186. Case
No. 21-CA-1001. February 26,1952
Decision and Order
On September 6, 1951, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, 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, the Respondents filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings made
by the Trial Examiner are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and brief, and the
entire record in the case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations, with the following addi-
tions and modifications :
1. We agree with the Trial Examiner that the Respondents inter-
fered with, restrained, and coerced their employees, in violation of
Section 8 (a) (1) of the Act by the numerous acts of interrogation
and threats fully described in the Intermediate Report, and referred to
in paragraph numbered 2, below.
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and Mem-
bers Murdock and Styles].
98 NLRB No. 45.
998666-vol. 98-53 22-