International Longshoremen's and Warehousemen's Union

National Labor Relations Board - Board Decisions

Feb 2, 1953

102 N.L.R.B. 907 (N.L.R.B. 1953)

INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN 'S UNION 907 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act. [Recommendations omitted -from publication in this volume.] INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LooAL 10, ILWU, and TRUE KNOWLEDGE . Case No. 2O-CB-216. Febru- ary L, 1953 Decision and Order On June 16, 1952, Trial Examiner David F. Doyle issued his Inter- mediate Report in the above-entitled proceeding, finding that the, Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings, with the exception noted below, are hereby affirmed 1 The Board has considered the Intermediate Report, the exceptions, and brief, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions and modifications. 1. We agree with the Trial Examiner that the Respondent Union violated Section 8 (b) (1) (A) and (2) of the Act, but for different reasons. The pertinent facts, as more fully set forth in the Inter- mediate Report, are as follows : The Pacific Maritime Association, referred to herein as the PMA, representing various shipping, stevedoring, and terminal companies, and the Respondent Union established many years ago a hiring hall on the San Francisco waterfront. At present, there are 2 groups of personnel working as longshoremen on the waterfront-about 2,500 are dispatched via the hiring hall in gangs and about the same number s At the hearing and in his Intermediate Report the Trial Examiner indicated that he took judicial notice of certain findings of fact in a prior proceeding before the Board in- volving True Knowledge and the Respondent Union . (International Longshoremen's and Warehousemen's Union et ai., 90 NLRB 1021 .) However, at the hearing the Trial Exam- iner stated that these findings having been litigated were conclusive upon the Respondent Union and it would not have the right to rebut the facts. The Trial Examiner was in error in this regard. The Board has held that a Trial Examiner can take official notice of proceedings before the Board in other cases, provided that fact is stated on the record by the Trial Examiner or in his Intermediate Report , and the parties are given an oppor- tunity to show to the contrary . J. S. Abercrombie Company, 83 NLRB 524. However, as we have not relied on these facts in arriving at our decision herein , the Respondent Union was not prejudiced thereby. 102 NLRB No. 87. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plug in on a board maintained in the hiring hall and are dispatched as casual men from the board. The work of all longshoremen is equalized by utilization of a system known as the low-man-low-gang- out. By this system the gang or man with the lowest number of hours worked is entitled to be dispatched first. Usually the number of men employed in gangs and the number working off the board in the hiring hall is about the same. If, as happens occasionally, casual men are employed a greater number of hours than the men in the gangs, there is a flow of men out of the gangs to the board. If the reverse situation occurs, the flow of men is off the board and into the gangs. In this manner, the hours worked by men in the gangs and off the board are approximately equal. True Knowledge, the charging party herein, and two others are the only registered longshoremen who are nonmembers of the Respond- ent Union. In August 1950 Knowledge was working as a casual man off the plug board. For several years he had known Richard Richardson, the boss of one of the gangs, and sometimes worked for him as a casual shoveler. On one of these occasions in the winter of 1950, Richardson advised True Knowledge that he would like to have him as a regular member of his gang if Knowledge would get clearance from the Union. Knowledge told Richardson that he would try to do so.2 He then had several conversations with Phillip Sandin, president of the Respondent Union, regarding this matter.a Later, he made a direct appeal to the Port Labor Relations Committee, which is a joint committee of union and employer representatives established under the Pacific Coast Longshore Agreement of 1948-51 between the PMA and the Respondent Union 4 The functions of this Committee as set forth in the 1948-51 contract are, inter alia, to maintain and operate the hiring hall; to have control of port registra- tion lists ; to decide questions regarding rotation of gangs and extra men ; and to investigate and adjudicate all grievances and disputes. On August 24, 1951, True Knowledge submitted a written request to the Committee in which he asked that he be granted the privilege of exercising his right to work steadily in a gang. On October 30, 1951, the employer representatives stated that, as far as they were concerned, the gang boss arranged the makeup of his gang and the Labor Relations Committee did not supervise by approving or dis- approving the joining of a gang by an individual, so long as he was 2 There were several personal advantages to Knowledge if be became a member of Richardson 's gang, such as steadier and more convenient working hours , a more convenient place to work, and considerably less expense in traveling to and from work. Details of the various conversations between Knowledge and Sandin are not given, as we find it unnecessary to consider this testimony and the Trial Examiner 's findings with regard thereto in reaching our decision. 4 The General Counsel does not contend that any of the contracts discussed herein are illegal. INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 909 a registered longshoreman. On November 6, 1951, the union repre- sentatives said that as far as they were concerned the personnel of the gangs is determined by the men in the gang; that they were the ones who determined who should be a member of the gang and the Union has no direct concern. Thereafter, True Knowledge filed the instant charge with the Board against the Respondent Union only. We are here concerned with a hiring arrangement under a contract which by its terms did not require union clearance for employment in a gang. The fact remains, however, that Richardson made it a condition precedent for True Knowledge to become a member of his gang that the latter secure clearance from the Union. We are satis- fied from the record as a whole that this condition was imposed by Richardson because of Knowledge's nonmembership in the Union. In reaching this conclusion, we note that (1) Richardson was a union member; ( 2) Richardson knew Knowledge was not a member of the Union at the time he made his offer, and might well have known the circumstances under which Knowledge lost his membership; (3) there is no evidence, except for the special situation regarding "permit men" referred to in the Intermediate Report, that a nonunion man ever obtained gang membership; and (4) Richardson desired that True Knowledge become a member of his gang, yet was reluctant to accept him without union approval-an impediment which apparently would not have existed if Knowledge had been a member. Whether Richardson's conduct, as contended by the Respondent Union, was based upon his personal desire to have only union members in his gang or upon his mistaken belief that this was what the Union wanted, we believe that he was according different treatment to union members and nonmembers by requiring the latter to obtain clearance from the Union. In so doing under these circumstances he was discriminating against nonmembers. But the Respondent argues that as no agent or instrumentality of the Union effected this discrimination, it cannot be found to have violated the Act. We turn therefore to a consideration of whether Richardson had the power and authority to hire members of his gang and whether the Respondent Union can be held responsible for his discriminatory conduct. The authority and selection of gang bosses is governed by rule 25 of the agreement of 1948-51, which is unchanged by the later agree- ment of the parties dated June 16, 1951. It reads as follows : 25. Gang bosses shall be selected and removed by the Labor Relations Committee. The Union may make recommendations for addition to the gang boss list. The gang boss is in complete authority and will be held responsible for the function of his gang. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The gang boss shall have the right to discharge from his gang any man for incompetence, insubordination, or failure to perform the work as required, in conformance with the provisions of the Agreement. While the rule does not refer expressly to hiring as one of the duties of the gang boss, we are satisfied that under the hiring-hall arrange- ment Richardson was authorized to recruit personnel for his gang. The Board's conclusion is based upon the following factors : (1) The response of the employer representatives to Knowledge's request for clearance-that as far as they were concerned the gang boss arranges the makeup of his gang-indicates that one of the parties to the hiring- hall agreement believed the gang boss had the authority; (2) the terms of the agreement with respect to gang bosses state that they are in complete authority, language which we consider broad enough to include the right to hire; and (3) the absence of any provision delegating the hiring power to any other person or persons. Our view is buttressed by the fact that Richardson, in conditionally offering employment to True Knowledge, exercised the authority and Rich- ardson testified on cross-examination that he believed he had such authority. In these circumstances, we believe that the Respondent Union was responsible for Richardson's conduct because it participated with the employers under the hiring-hall agreement in clothing the gang bosses with authority and power to hire. The discrimination practiced by Richardson was a reasonably anticipated result, espe- cially when viewed in the light of the then current contract which accorded preferential employment to members of the Union.5 The Respondent Union vigorously contends that the authority to hire was in the gang members and not in the gang boss as such. In support of its position the Respondent points to the view expressed by the union representatives on the Port Labor Relations Committee- that as far as they were concerned the personnel of the gang was de- termined by the men in the gang-and to the fact that the agreement with the PMA specifically gave the gang boss the right to discharge, but did not refer to any right on his part to hire. As previously indicated, we are persuaded that actual authority to hire reposed in the gang boss. However, even if the Board were to assume that Richardson did not have this authority as gang boss, we nevertheless would find the Respondent responsible in the circumstances of this case, because Richardson's action in imposing discriminatory condi- tions upon Knowledge would have been within the scope of the hiring authority delegated to the gang. Having participated, by virtue of the hiring-hall agreement, with the employers in clothing the gang 6 See International Longshoremen 's and Warehousemen's Union and Local 19 (Water- front Employers of Washington et al.), 98 NLRB 284. INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 911 with authority and power to hire, which one of the members (Richard- son) utilized in a discriminatory manner, we would hold a denial of responsibility by the Union to be without merit. In view of the foregoing, we conclude that the Respondent Union, by engaging in a hiring-hall arrangement of which the gang system was an integral part, caused, within the meaning of Section 8 (b) (1) (A) and (2) of the Act, the employers to discriminate against True Knowledge in his tenure of employment. The Remedy Having found that the Respondent Union engaged in certain unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act, we shall order the Respondent to cease and desist there- from and to take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent to make True Knowledge whole in the manner set forth in section V of the Inter- mediate Report, except that we shall require the Respondent to serve notices only upon the Port Labor Relations Committee, the gang bosses, and gang members. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, International Longshoremen's and Warehousemen's Union, Local 10, ILWU, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause the Pacific Maritime Associa- tion, its officers, agents, successors, or assigns, through the medium of the hiring hall operated in the San Francisco Bay area, to deny employment to any employee or prospective employee because he is not a member in good standing of the Union, except to the extent permitted by Section 8 (a) (3) of the Act. (b) In any like or related manner causing or attempting to cause the Pacific Maritime Association, its officers , agents, successors, or assigns, through the medium of the hiring hall, to discriminate against employees or prospective employees in violation of Section 8 (a) (3) of the Act. (c) Restraining or coercing employees or prospective employees of the Pacific Maritime Association, in the exercise of their right to engage in or to refrain from engaging in any and all of the concerted activities guaranteed to them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify the Port Labor Relations Committee, the gang bosses, and gang members," in writing, and furnish copies thereof to True Knowledge, that True Knowledge or any other qualified longshore- man should not be denied employment in any regularly organized gang because of membership or nonmembership in the Union, except to the extent authorized by Section 8 (a) (3) of the Act, and said notification shall contain a request to Richard Richardson and the members of his gang that True Knowledge be offered employ- ment as a member of Richard Richardson's gang #50. (b) Make whole True Knowledge for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in section V of the Intermediate Report entitled "The Remedy," as modified by the remedy section of this Decision and Order. (c) Post in conspicuous places at the business offices of the Union, in the San Francisco hiring hall, and in all places where notices or communications to its members are customarily posted, copies of the notice attached hereto and marked "Appendix A." T Copies of said notice, to be furnished by the Regional Director for the Twen- tieth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Twentieth Region signed copies of the notice attached hereto as Appendix A, for posting, the Pacific Maritime Association willing, at its offices and in all other places where notices to employees are customarily posted by said Pacific Maritime Association. Copies of said notices to be furnished by the Regional Director for the Twentieth Region, shall, after being signed as provided in section 2, subsection (c), be forthwith returned to the Regional Director for posting. (e) Notify the Regional Director for the Twentieth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Posting of notices in the manner described in section 2, subsection ( c),, in/re, of this Order shall satisfy the notification requirement as to all gang bosses and members, except for Richardson and his gang. 4 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." INTERNAT'L LON4 SHOREMEN'8 AND WAREHOUSEMEN 'S UNION 913 MEMBER S rvi took no part in the consideration of the above Decision and Order. Appendix A NOTICE TO ALL MEMBERS OF THE INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 10, ILWU, AND TO ALL EMPLOYEES AND PROSPECTIVE EMPLOYEES OF THE PACIFIC MARITIME AssocrATION Pursuant to a Decision and Order of the National Labor Relations Bgard, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our members and the employees of the Pacific Maritime Association that : WE WILL NOT cause or attempt to cause PACIFIC MARITIME ASSOCIATION or its successors and assigns, to discriminate against True Knowledge or any other employee or prospective employee in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees or prospective em- ployees of the PACIFIC MARITIME AssoCIATION, its successors or assigns, in their exercise of the right to refrain from any or all of the concerted activities listed in Section 7 of the Act, except to the extent that such right may be affected by the proviso in Section 8 (b) (1) (A) of the Act, or by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act. WE WILL make True Knowledge whole for any loss of pay suffered by him as a result of our having prevented his hire as a member of Richard Richardson's Gang #50. WE WILL request Richard Richardson and his gang members to offer employment to True Knowledge. True Knowledge or any other qualified longshoreman should not be denied employment in any regularly organized gang because of mem- bership or nonmembership in International Longshoremen's and Warehousemen's Union, Local 10, ILWU, except to the extent au- thorized in Section 8 (a) (3) of the Act. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 10, ILWU, By ----------------------------------------------- (Representative ) (Title) Dated-------------------------- This notice must remain posted for 60 days from the date of posting and must not be altered, defaced, or covered by any other material. 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended, (61 Stat. 136) herein called the Act, was heard at San Fran- cisco, California, on April 9-11, 1952, pursuant to due notice to all parties. The complaint, dated January 31, 1952, issued by the General Counsel of the Na- tional Labor Relations Board and duly served on the International Longshore- men's and Warehousemen's Union, Local 10, ILWU, herein called the Re- spondent or the Union, was based on a charge filed by True Knowledge, an individual, and alleged in substance that the Respondent beginning on or about March 12, 1951, caused the Pacific Maritime Association, an association of employers, hereinafter called the PMA or the Employers, through the medium of the hiring-hall system, to refuse to dispatch True Knowledge for longshore work as a member of a regularly organized dock gang on the San Francisco waterfront because he was no longer a member in good standing of the Union for reasons other than his failure to tender periodic dues, thereby engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act. The Respondent in its duly filed answer admitted paragraphs of the complaint alleging that: (1) The Pacific Maritime Association is a corporation which is the agent of various shipping, stevedore, and terminal companies for the purpose of collective bargaining with labor organizations, and has acted as the agent of said member companies in the operation of the hiring hall established by col- lective-bargaining contracts between the Union and the PMA, and that the PMA is an employer within the meaning of Section 2 (2) of the Act; (2) each of the member companies making up the PMA is engaged in the loading, unloading, and handling of waterborne cargo at various ports on the Pacific Coast and that each of said companies in the ordinary course of its business unloads and handles a very substantial amount of cargo in the course of transportation between the various States of the United States, and foreign countries; (3) the Respondent is a labor organization within the meaning of Section 2 (5) of the Act; (4) prior to March 12, 1951, and at all times material to the complaint the dispatch- ing of individuals for work as longshoremen with various member companies of the PMA on the San Francisco waterfront was through the medium of the hiring-hall system created and established under and by virtue of various col- lective-bargaining contracts entered into by and between the Union and the PMA, and that this method of dispatching is the only means and method whereby employment as a longshoreman on the San Francisco waterfront can be obtained with the various member companies of the PMA. The answer denied the com- mission of any unfair labor practices. At the hearing all parties were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs and proposed findings. Both parties argued orally and the Respondent has submitted a brief which has been considered. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE PACIFIC MARITIME ASSOCIATION Upon the pleadings , I find that the Pacific Maritime Association is engaged in commerce within the meaning of the Act. INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 915 IT. THE LABOR ORGANIZATION INVOLVED Upon the pleadings , I find that the International Longshoremen's and Ware- housemen 's Union , Local 10, ILWU, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background; prior proceeding True Knowledge, the charging party in this proceeding and the Respondent Union were involved in prior proceedings before the Board entitled, International Longshoremen's and Warehousemen's Union, etc., and Waterfront Employers Association of the Pacific Coast and International Longshoremen's and Ware- housemen's Union, District No. 1, Acting on Behalf of Ship Clerks Association, Local 34 and Local 34; Marine Clerks Association, Local 1-63, and Supercargoes and Checkers Union, Local 40, etc., and Waterfront Employers Association of the Pacific Coast, 90 NLRB 10213 In the course of the instant proceeding the General Counsel requested the Trial Examiner to take judicial notice of the findings of the Trial Examiner in the above-cited cases as regards True Knowledge, which findings were adopted by the Board. Pursuant to that request, over the objection of Respondent, the undersigned took judicial notice of the following findings of fact in the instant case:' In August 1933, Charles W. Ross, Jr., who had been employed as a long- shoreman for some 12 years, principally in the San Francisco Bay area, joined the ILA as a charter member. He remained a member of that union until it was succeeded as bargaining agent by the ILWU, when he joined that labor organization, continuing his membership until January 1948. He was among those registered in the initial registration at the port of San Francisco in 1935, and was assigned registration #1766. During his em- ployment on the waterfront, he performed every type of longshore work, as a plugboard man, except that of winch driver and jitney driver. In the spring of 1935, apparently Ross became a follower of Father Divine and adopted the name of True Knowledge.' He continued in his calling as a longshoreman under the same registration number until the early summer of 1948. During World War II, because of his religious scruples, he refused to handle war cargo, and worked exclusively at the Matson Dock, piers 30 and 32, where only commercial cargo was handled. So far as the record discloses, no objection was made by the employers or the ILWU to this arrangement. On September 30, 1946, the ILWU and other maritime unions on the west coast engaged in a strike which lasted until early December of that year. When it had appeared that the strike was imminent, True Knowl- edge applied to the ILWU Clearance Committee for exemption from picket duty because of a conflict with his religious convictions. No action was taken on his request, and when the strike ended about December 5, True Knowledge returned to work. He had been working 7 or 8 days, when his walking boss , a union member , under whose supervision he had been working 3 or 4 years, told I C. A. 9, #12907, decree enforcing Board 's Order entered by consent of parties , February 5, 1952. _ "El Impartial" Inc., 99 NLRB 8, and cases cited therein. Footnotes to these findings have been omitted for the sake of brevity in this report. 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him that he would have to obtain a clearance card from the ILWU Clear- ance Committee. When he applied to that Committee, be was questioned as to the reason he had failed to engage in picket duty during the strike. Rejecting his answer as unsatisfactory, the Committee refused him clear- ance, but advised him of his right to appeal to the ILWU Executive Board. His appeal to that Board, and later, to the general membership of ILWU Local 10, were both denied after hearing. In January or February 1947, the Union notified the Labor Relations Com- mittee that True Knowledge had been expelled from membership, and requested that his name be removed from the list of registered longshoremen. The employer members of the Committee refused. From about mid-Decem- ber 1946 until early February 1947, when the matter was brought up by Gregory before the Labor Relations Committee, True Knowledge was denied opportunity to work on the waterfront. After several conferences, a settle- ment was finally effected by the Committee, on April 29, 1947, which permitted him to be dispatched as a fully registered longshoreman, without union preference, but before permit men could be dispatched.4 He returned to work next day and worked fairly steadily thereafter until about August 1947, when all existing permit men were either admitted to membership in the Union, and granted full registration, or removed from the list. True Knowledge, however, was neither removed from the registra- tion list nor restored to membership. He continued to report to the hiring hall thereafter. Under the settlement, True Knowledge was permitted to plug in on any board, applicable to a job classification for which he was qualified. His plug would not be removed, however, until the plugs of all union members on the same board had been "pulled," without regard to when they had "plugged in." Thus, True Knowledge would be the last person to be dispatched from the board in that particular category. Some- times, True Knowledge testified, he would remain at the hiring hall all day waiting to accept a job others had refused. As has been mentioned, the quota of hours to be worked each week was posted at the hall. During the period from April 30, 1947, to January 1, 1948, he worked the posted weekly quota infrequently! Beginning in January 1948, the dispatchers refused to dispatch him at all until all the longshoremen who had "plugged in" on all plug-boards had first been dispatched. Thus, even when True Knowledge's plug was reached on a particular board, the dispatcher would refuse to dispatch him until all plugs on all other boards had been "pulled." He complained to the various dispatchers several times over a period of 4 or 5 months, and finally protested to Chief Dispatcher James Sutter that this was contrary to the agreement reached by the Labor Relations Committee. He was told that he had no right to work as long as union men were available. On several occasions, when he complained to a dispatcher, whom True Knowledge could identify only by general physical description, and the first name, Walter, he was told that he would not be given an opportunity to work as long as the dispatcher could obtain anyone else. Similar complaints to Acting Chief Dispatcher Charles Mayfield were equally unavailing. True Knowledge continued to "plug in" until about mid-June 1948, three times the last week , during which he was dispatched to one job lasting 2 days. • See footnote 3, supra. 6 See footnote 3, supra. INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 917 He plugged in once or twice after that, without avail, and, on June 24, 1948, finally withdrew from the waterfront, abandoning further effort to obtain work in the industry. Although his dues in the ILWU had been paid only to January 1947, there was no contention that the action taken by the Union or the dispatchers was in any way based on failure to maintain his dues-paying membership. On the contrary, the record as a whole establishes that the treatment accorded him stemmed solely from his failure to engage in picket duty during the strike in the fall of 1946. B. The present issue In August 1950 True Knowledge decided to again seek employment as a long- shoreman on the San Francisco waterfront. As will later appear, he resumed his occupation as a longshoreman working as a casual man off the plug board maintained in the hiring hall. In the course of this employment True Knowledge was presented with the opportunity to become a member of Richardson's gang #50 upon the condition that he obtain clearance from the Union. It is the contention of the General Counsel that the Union by means of the hiring hall caused the PMA, the employer, to refuse to dispatch True Knowledge for longshore work as a member of a regularly organized dock gang, because he was not a member of the Union. The Union denies this allegation and takes the position that the Union exerts no control over the composition of gangs on the waterfront and did not cause any discrimination against True Knowledge. C. The General Counsel' s witnesses True Knowledge was presented as a witness by the General Counsel. He is a man of middle age, well spoken and apparently well read. He testified with frankness and candor and with a scrupulous fairness to all the parties and persons involved in this proceeding. Although he would "bear no record" as to the activities of Charles Ross, Jr., he was perfectly frank and open in answering all questions about True Knowledge. True Knowledge appears to be a person of sincere religious convictions. His attitude as a witness was that of one who sought the establishment of fair principles of conduct rather than his own personal advantage. As a witness I found him to be exceptionally convincing. I credit his testimony fully. True Knowledge testified that he did not attempt to work on the waterfront for several years prior to August 1950, but at that time he determined to resume the occupation of longshoring. He went to see Philip Sandin, president of the Union, about August 21, 1950. He saw Sandin at the latter's office and asked him if it would be all right for him to come back to work on the waterfront. Sandin directed True Knowledge to see Snyder, the representative of the PMA. True Knowledge saw Snyder and told him he wanted to come back to work as a long- shoreman on the waterfront. Snyder told True Knowledge that as far as the PMA was concerned, he saw no reason why True Knowledge couldn't return to his position as longshoreman. True Knowledge reported Snyder's attitude to Sandin. In the presence of True Knowledge, Sandin phoned the chief dispatcher at the hiring hall and told him that True Knowledge was going to plug in on the board.' Sandin told the chief dispatcher to let True Knowledge plug in as "there was nothing they could do about it." That is the expression used on the waterfront for a longshoreman putting his number on the board for dispatch. 250983-vol . 102-53-59 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the following day True Knowledge plugged in and was dispatched to a job. For several years True Knowledge had known Richard Richardson , the boss of gang # 50. On several occasions in ensuing months he worked for Richardson as a casual shoveler . One of the occasions occurred in the winter of 1950-51. At that time the gang was working in Oakland at the El Dorado oil dock. In the course of a conversation that True Knowledge had with Richardson, Richardson said that he would be very glad to have True Knowledge as a regular member of his gang if True Knowledge would get clearance from the Union True Knowl- edge told Richardson that he would try to obtain such clearance and would report developments to him. A day or two later True Knowledge went to see Sandin again at his office. He told Sandin that he wanted to go on a gang, Richardson's, as he had been offered that opportunity . On this occasion , Sandia asked True Knowledge to give him some time in which to work out the details of his clear- ance. He told True Knowledge that the union elections were to be held shortly, and that he did not wish to bring up the question of True Knowledge at the time of the election. True Knowledge told Sandia that he appreciated the politics of the situation , and said that he would inquire from Sandin again after the elec- tions. Approximately a month later True Knowledge again saw Sandia. On this occasion Sandia told him that he had not been able to work out clearance for True Knowledge and asked True Knowledge to let the matter run until after the convention of the Union in Hawaii. It is clear from these conversations that at this time Sandin and True Knowl- edge spoke of two things, either reinstatement of True Knowledge in the Union, which Sandia evidently favored, or a clearance for True Knowledge, so that he might work in a gang regardless of union membership. After the Union's convention in Hawaii True Knowledge again went back to see Sandra . He told Sandia that Richardson still had a job in his gang and that he was most anxious to obtain a clearance from the Union so that he might obtain the job. Sandin said that he was desirous of having True Knowledge back in the Union and was working to that end. True Knowledge testified that on that occasion he emphasized his request for permission to work steadily in a gang, knowing that Sandin would have to take that matter up with other union officials. Approximately 3 weeks later True Knowledge saw Sandia again. Sandin told him he had been unable to contact the proper committee members who had juris- diction over the matter of clearance for True Knowledge. About 2 months later True Knowledge again went to the union hall to see Sandin. When Sandia came to the door of his office he said to True Knowledge, "What is your trouble now?" True Knowledge repeated his request for clear- ance, and asked if any action had been taken regarding it. He told Sandin that the job was still open . In this occasion Sandin said , "Now, you know we can't do that" and closed the door. True Knowledge testified that in all the years he worked on the waterfront it had been his understanding that a man had to be a member of the Union to work in a gang, and that although he had been dispatched as a registered longshore- man without being a member of the Union , he was still considered an outsider, and to work steadily in a gang he had to have union clearance . When the appeal of True Knowledge to Sandin was unsuccessful True Knowledge then appealed to the Port Labor Relations Committee , which is a joint committee of union and employer representatives established under the Pacific Coast Longshore Agree- ment 1948-51. True Knowledge went before the committee on August 14, 1951. The minutes of the committee for that date in regard to True Knowledge read as follows : INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 919 True Knowledge, No. 1766 True Knowledge appeared before the joint committee requesting verifica- tion of his right to become a regular gang member. Committee stated he was a registered man and recommended that he bring up at a later date any specific questions concerning his rights under the contract which he felt were not satisfactorily explained. True Knowledge testified that at this meeting the committee advised him to make his request in writing. Pursuant to this direction True Knowledge wrote the following letter to the committee on August 24, 1951. Dears Sirs : In compliance with your request on Aug. 14th inst. I am hereby sub- mitting in writing the request I made of your honorable committee verbally (in person) in your Committee room on that date To repeat- I hereby request the priveledge to exercise my right to work steady in a gang. Respectfully and sincere s/ True Knowledge-Reg. #1766 Thank You-Father Divine P. S. I hope your committee will give some consideration to my humble plea, and not do as the representatives of the union urged on the occasion of my request in person-which was-to have my words and my request stricken entirely from your official committee records. Respectfully, T. K. On October 30, 1951, True Knowledge again appeared before the Port Labor Relations Committee seeking clearance to work as a regular member of Richardson's gang. The committee minutes of October 30, 1951, read as follows : Old business True Knowledge, No 1766 (Minutes 9/11/51; 10/9-16-23/51) True Knowledge was present before the committee, as requested. Employer stated that as far as they were concerned the gang boss arranges the make-up of his gang and the Labor Relations Committee does not super- vise by approving or disapproving the joining of a gang by an individual as long as he is a registered longshoreman. Union took the employers' position under advisement before stating their position to True Knowledge. He was advised to appear again before the committee next Tuesday. On November 6, 1951, pursuant to his instructions, True Knowledge again appeared before the committee. The minutes show the position of the Union as follows : Old business True Knowledge, No. 1766, Minutes 9/11/51; 10/9-16-23-30/51 True Knowledge was present before the committee and the Union stated as far as they were concerned the personnel of gangs is determined by the men in the gang and they are the ones who determine who shall be a member of the gang and the Union has no direct concern. (Emphasis supplied.) 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above action of the union representatives on November 6, 1951, ended the efforts of True Knowledge to obtain clearance by appeal to the Union and the committee. He bad not obtained union clearance, so he was not hired by Richardson. Thereafter True Knowledge filed the instant charge with the Board. True Knowledge testified that there were several advantages to being a long- shoreman employed in a gang rather than a longshoreman despatched from the plug board in the hiring hall. He explained that Richardson's gang is a shovel- ing gang and most of their jobs are performed during the day. Also, Richard- son's gang usually works on the Oakland side of San Francisco Bay and are employed for several days at a time. As a casual longshoreman it was neces- sary for True Knowledge to travel across the Bay Bridge each morning and report to the hiring hall at approximately 6: 30 a. in., and then wait to be dis- patched. He explained that as a member of a gang he would know when he was going to work and when he was going to have time off. As a casual longshore- man he would not know when he was going to work or when he was going to have time off. His daily crossing of the Bay Bridge with the payment of toll both ways, was also an additional financial burden. For these reasons his desire to be employed as a regular member of Richardson's gang was far from aca- demic, as it meant steadier and more convenient working hours, a more con- venient place to work, and considerably less expense in getting to and from work. True Knowledge testified that after Richardson invited him to become a mem- ber of his gang, he spoke to all except one member of Richardson's gang. All the men to whom he talked were willing that he become a member of the gang. True Knowledge testified that in all the years he has worked on the water- front it has been the practice established by the Union that a longshoreman had to be a member of the Union to become a member of a gang. He testified that each dock gang had a steward who represented the Union and that it was his duty to check the books of longshoremen who came to work to insure that only those men who were members of the Union in good standing worked, and to pre- vent men not in good standing from working. True Knowledge testified that he believed he saw instructions to this effect issued in various bulletins put out by the Union in recent years.' True Knowledge explained that the union stew- ard is the man who is elected by members of the gang to uphold the working rules and regulations of the Union. It was the duty of the gang stewards to inspect the books of the longshoremen regularly. True Knowledge testified that during the last war certain men known as "per- mit men" were employed as longshoremen, and were permitted to become members of gangs. During that period True Knowledge saw the union stewards check the books of the longshoremen and not allow "permit men" to work who were not paid up in their dues. True Knowledge testified that on one occasion he was dispatched to work a job at Oakland. The job was to last 3 or 4 days, but some of the men on the job objected to working with him because he was not a member of the Union and his employment was terminated at the end of the first day. A man by the name of Majos was the gang boss of that gang. On that occasion both the gang boss and the gang steward told True Knowledge that he could not work with the gang. True Knowledge said that there were numerous instances of that kind which happened to him but, thought he complained to the Union and the officials seemed 7 Testimony of True Knowledge on this point was not correct as the bulletins for period March 2, 1951-April 4 , 1952 , were produced by the Union , and it was stipulated by counsel that the bulletins made no reference to any such duties or conduct by union stewards. INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 921 to be sympathetic, no official action was ever taken by the Union to stop this practice of discriminating against True Knowledge. True Knowledge testified that it was common knowledge on the waterfront that the only man working on the waterfront as a registered longshoreman without a union card was himself. He understood that there were two other men registered as longshoremen who did not belong to the Union. Their names were Roosevelt Stafford and Joseph Sorce, and both of those men had filed charges against the Union with the National Labor Relations Board .8 True Knowledge testified that he understood that the rights of these men were still in dispute, and that he had not seen them working on the waterfront in recent months. He explained that there were some men working on the waterfront on a temporary basis. These occasional workers were cleared by the Union from time to time. True Knowledge testified that in all the years he had been a longshoreman on the San Francisco waterfront the Union had restricted the right to work to its own members, and that in all that time, the Union had not deviated from its policy that it, alone, had the right to decide who worked as longshoremen. On cross-examination True Knowledge stated that his first request to Sandin was for reinstatement in the Union, but that on later occasions he asked Sandin for permission to be allowed to work as a regular member of the Richardson gang. True Knowledge also stated that he saw Walter Bell, the vice president of the Union, on one occasion and asked him to be reinstated in the Union. Bell told him that there was not a chance of his being reinstated as the Union was not taking in any new members or reinstating any former members. True Knowledge stated that Sandin in his various conversations never told him that the Union did not have anything to do with the membership in gangs, but on the contrary Sandin told him he was trying to obtain clearance for him. True Knowledge testified that as long as he was employed on the waterfront the Employers had not tried to restrict his working as a longshoreman and that, as he understood the situation, they were not attempting to restrict his working at the present time. In the course of his cross-examination, True Knowledge said that the Union exercised a coercive force over men who worked on the waterfront. Because of their fear of union reprisal, retaliation, or punishment, the men were afraid to give sympathy or support to those who sought to obtain their full rights and privileges under the law. He stated that the Union, down through the years, prevented anyone who was a nonunion man from having the right and privilege to work on the waterfront. He stated that this condition prevailed for many years before the enactment of the Taft-Hartley Law, and has continued un- changed up to the present. Albert Firenze also testified as a witness for the General Counsel. He stated that he was a member of the Union since 1934, and a member of Richardson's gang. According to Firenze, when a man is taken into a gang, the two persons who decided whether he is to be admitted or not are the gang boss and the gang steward. In his opinion the gang steward has more to say than the gang boss. If either of these two persons do not wish the man in the gang it is very easy for them to keep him out. He testified that Richardson could not take True Knowledge into the gang, even if he wanted to, because he had to, have the authority of union officials before he could take him into the gang and True Knowledge did not have a union book. See International Longshoremen 's and Warehousemen's Union, etc., and Roosevelt Stafford and Joseph Sorce ( two cases ), 94 NLRB 109-1. Petition for enforcement pending. C. A.9,##13183. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Firenze said that on one occasion he talked to Sandin, president of the Union, about True Knowledge. Firenze asked him if it would be all right if True Knowledge went to work in the gang instead of working off the board, because True Knowledge was living across the bay. Sandin told Firenze he was going to leave it up to the general membership as to what could be done about True Knowledge. Firenze stated that from his long experience (over 18 years) on the waterfront he knew the gang boss has authority to hire or fire a man if he wanted to. He said that the gang boss could hire any man he chose, and that if any member of the gang did not Like the new man, he had a right to quit and go back to being dispatched from the board, or becoming a member of a different gang. He stated that it happened quite frequently that gang bosses hired new men who were not liked by someone in the gang. The latter simply quit and were dispatched from the hall or joined another gang. This witness testified repeatedly that a man could not work in a gang if the union officials did not clear him or he did not have a book. Fireneze stated that he suggested to True Knowledge that he become a member of the Richardson gang, as lie considered True Knowledge a very good longshoreman with whom it was easy to get along, and he wanted True Knowledge as his partner. Joseph McLaughlin, also a longshoreman, and a member of the Union since 1934, testified that he, too, was a member of Richardson's gang #50. He testified that True Knowledge was a good worker and that he told True Knowledge he was agreeable to him becoming a member of the gang. This witness also testified that a man who was not a member of the Union could not become a member of a gang. He stated that in his long experience on the waterfront he never knew of a longshoreman who was not a member of the Union being a member of a gang. He stated that there must be a union rule to that effect. No official had ever told him that such a rule existed, but he understood that to be a member of a gang a man had to be a member of the Union. On cross-examination this witness testified that during the war emergency some men called "permit men" were permitted to work as longshoremen and as members of gangs. He stated that this was due to the emergency, and that the permits were issued by the Union. McLaughlin testified that the gang boss can hire any nian he wants, and if the members of the gang do not like the man he hires, they have the right to quit and be dispatched from the hall thereafter or become members of another gang. He said that no one in Richardson's gang objected to True Knowledge. He stated that to the best of his knowledge it Lad always been the rule since the war that a man had to be a member of the Union to be a member of a gang. Both Firenze and McLaughlin testified in a frank and straightforward man- ner. Cross-examination disclosed no reason for not accepting their testimony ; I credit the testimony of both. Richard Richardson, a member of the Union and the gang boss previously referred to, also testified. He stated that on one occasion when his gang was working at the El Dorado oil works he spoke to True Knowledge about becoming a member of his gang, telling him that he would be glad to have him as a regular member of the gang provided True Knowledge could get clearance from the Union. He knew at that time that True Knowledge was not a member of the Union. At that time there was a vacancy in Richardson's gang.' From time to time after that, True Knowledge reported to Richardson what he was doing to obtain clearance from the Union, and Richardson repeatedly assured True Knowledge that a position was available for him if he could obtain the 9 It appears that the vacancy continued thereafter. INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 923 clearance. Richardson testified that he invited True Knowledge to become a member of his gang because he liked True Knowledge. On direct examination, Richardson testified that it was the members of the gang who decided if a certain man was to be admitted as a member of the gang. On cross-examination, however, he testified that as gang boss, he could hire any registered longshoreman he desired. He explained that as a matter of practice he would not hire a man disliked by the gang because the gang members might all quit and break up the gang , but he testified he had ultimate authority to hire whom he chose. He stated that he based his testimony as to his authority on the fact that he made up the gang in the first instance, and was its boss. Richardson testified that he conditioned the employment of True Knowledge upon the latter's gaining union clearance as a personal consideration of his own. However, he stated that he had never known of an instance in his many years on the waterfront where a nonunion man was a member of a gang. Richardson stated that as gang boss he was responsible to the shipping company for which lie was working for the quality of the work performed, and to the Union for any breach of the working rules of the Union. He explained that he might be called before the Port Labor Relations Committee by either the company or the Union. I do not credit Richardson's testimony that his conditioning employment oaf True Knowledge upon union clearance was his own personal idea. In the light of all the evidence that assertion is highly incredible. .J. R. Snyder, northern California area manager, PMA, also testified as a witness for the General Counsel. He stated that previous to 1948, he was employed by the Waterfront Employers Association of the Pacific Coast and of California. That organization was an association of employers who became the Pacific Maritime Association in 1948. In that year the PMA succeeded to all the rights under the contract between the Association and the Union. This contract was called Pacific Coast Longshore Agreement 1948-51. Following the expiration of the last-named agreement, the Pacific Coast Longshore Agree- ment of June 16, 1951, was executed. That contract is presently in effect. Snyder explained that the Pacific Coast Longshore Agreement 1948-51 con- tained the working and dispatching rules. In the Pacific Coast Longshore Agreement of June 16, 1951, all the working and dispatching rules were continued with certain modifications appropriate to the new contract. In the fall of 1950 True Knowledge came to see him. True Knowledge asked if his registration as a longshoreman was in effect if he was permitted to work in the Port. Snyder checked the registration and told True Knowledge that he was still a registered longshoreman, that his name had not been deleted from the registration list, and accordingly he was eligible under the rules of the committee to work in the Port. Snyder knew that True Knowledge had been expelled from the Union. This witness also explained that the work of all longshoremen was equalized by the low-man-low-gang-out system. By this system the gang or the man with the lowest number of hours worked was entitled to be dispatched first. Usually the number of men employed in gangs, and the number working off the board in the hiring hall, is about the same. If, as sometimes happens, casual men are employed a greater number of hours than the men in gangs, there is a flow of men out of the gangs to the board. If the reverse situation occurs the flow of men is off the board into the gangs. In that way the hours worked by men in gangs and men off the board is approximately equal. At the time of the hearing, Snyder testified there were 230 regularly organized gangs in the Port of San Francisco. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The Union's witnesses The Union called as a witness Philip Carl Sandin , president of the Union from January 1950 to January 1952. He testified that he had known True Knowledge as a longshoreman for many years . He had a recollection of a series of con- versations with True Knowledge beginning in the fall of 1950 and continuing for some time thereafter . Sandin admitted that his recollection of these conversations was not too clear , and repeatedly prefaced his answers with such qualifying words as I believe-I couldn't say for sure.'° According to his recollection , the first conversation with True Knowledge was in regard to the reinstatement of True Knowledge in the Union . This conver- sation took place in his office at the union hall. On that occasion True Knowledge asked to be reinstated in the Union , and Sandin told him that he would try to effect his reinstatement . Sandin said that True Knowledge stated , "that he would like to be back in the Union and be reinstated with privileges of any other Union man ." Sandin testified that he was sympathetic to True Knowledge and had no objection to him being in the Union . Thereafter he discussed reinstate- ment with True Knowledge on several occasions . Shortly after the first con- versation True Knowledge requested permission from the Union to work in a gang, mentioning Richardson 's gang. Sandin testified that on that occasion he told True Knowledge that as far as he was concerned he didn't see any objection to him working in a gang, and that the Union had nothing to do with the question of personnel in gangs. Though he admitted that his memory was hazy as to many points of the various conversations , Sandin testified on cross -examination that True Knowledge never asked him for clearance from the Union to work in a gang . He stated that, knowing the Union's position on that matter , he would remember any such request for clearance. I do not credit Sandin's testimony that True Knowledge never asked Sandin to obtain clearance for him. Such testimony contradicts Sandin's testimony on direct examination . On this point , I credit True Knowledge 's testimony that he requested clearance from Sandin on at least three occasions. Julius Stern , welfare officer of the Union , also testified as a witness for the Union. He testified that he had been a dock and gang steward from the year 1937 to 1942, being steward of gang 84, and that he had worked on the waterfront since 1936. Stern testified that there were permit men on the waterfront from 1934 until the system was discontinued in 1947. Permit men were registered longshoremen who though not members of the Union were passed for employment by the Union and the Employers and were issued a registration number. When a man was okayed by the Union and the Employers he was issued a permit card and a number . With that card he was able to work as a regular longshoreman. Sometimes he was permitted to work in a gang, and at other times he was not. Stern explained that the contract which the Union had with the Employers until 1948 provided that members of the Union should have preference of employment. In 1934 and 1937 the permit men were allowed to work in gangs, but when the volume of work slackened the permit men had to leave the gangs and work out of the hiring hall. A membership ruling of the Union was passed to that effect. The permit men then left the gangs and worked out of the hiring hall until 1939. Then, that rule was rescinded and they were allowed to work under the same conditions as book members of the Union , including working in gangs. That continued until 1947 , when the Union accepted all permit men into membership. 10 Transcript page 272 et Seq. INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 925 Since that time there have been no permit men on the waterfront. All the men are now registered longshoremen ." Stern testified that there are three registered longshoremen who are not members of the Union, True Knowledge is one of these. This witness stated that he was familar with the duties of dock and gang stewards. The first obligation of a steward is to see to it that the provisions of the contract with the employer are enforced in the gang or on the dock where he is working. His second duty is to check the books of everybody in his gang, or on his dock, at least once a month. If a man is behind in his dues since 1951 the steward warns the man that if he does not pay up he will be liable to a fine of $1 a day. That admonition is given pursuant to the provisions of a union bylaw. If men do not have paid-up books, action is taken against them. Stern testified that there are 2 groups of men working on the waterfront ; gang men and casual men. There are approximately 5,000 working longshoremen in the Port of San Francisco ; about 2,500 in gangs, and about 2,500 who are dis- patched as plug men from the hiring hall. There is no regulation by the employer or the Union as to whether a man works in a gang or off the board. When a registered longshoreman reports to work at the hiring hall, he signs his name, his registration number, and hours worked on a sheet. Every morning and after- noon when the men are dispatched the man with the lowest number of hours worked is dispatched first. When he is dispatched he is given a slip which he takes to the gang boss at the place to which he is assigned. A man may leave a job any time he wants to, as long as he notifies the foreman and orders a replacement. Any longshoreman also may be discharged and sent back to the hiring hall. Stern testified that the Union has never taken any position as to the per- sonnel in the gangs. There is a common understanding on the waterfront that when a man wants to go into a gang the gang itself makes the decision as to whether he will be admitted or not. The Union has not taken any position as to the makeup of gangs. I do not accept Stern's testimony that the Union does not exert control over the makeup of the gangs. Such testimony is directly contrary to the weight of the credible evidence. E. The documentary evidence As noted previously the General Counsel introduced into evidence the Pacific Coast Longshore Agreement 1948-51, and the Pacific Coast Longshore Agreement of June 16, 1951. Snyder, a representative of the PMA, testified that the working rules contained in the first-mentioned contract were still in effect, with some minor changes appropriate to the June 16, 1951, contract. The contract of 1948-51 sets out the formation and duties of the Port Labor Relations Committee in the following language : (c) Labor Relations Committees (1) The parties shall immediately establish, and shall maintain during the life of this Agreement, a Port Labor Relations Committee for each port affected by this Agreement, an Area Labor Relations Committee for each of the four port areas (Southern California, Northern California, Columbia River and Oregon Coast Ports, and Washington), and a Coast Labor Rela- " In the Pacific Coast Longshore Agreement 1948-51, preference in employment was given to memmbers of the Union . Sec. 7-Hiring Hall , Registration and Preference. In the Pacific Coast Longshore Agreement of June 16 , 1951, preference of employment is given to registered longshoremen registered as of June 1, 1951 . Sec. 7-Hiring, Dis- patching, Registration and Preference. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Committee at San Francisco, California, each of said labor relations committees to be comprised of three representatives designated by the Union and three representatives designated by the Employers. By mutual consent any labor relations committee may change the number of repre- sentatives of the respective parties. (2) Subject to provision of Section 14 (a) the duties of the Port Labor Relations Committee shall be: A. To maintain and operate the hiring hall. B. To have control of the registration lists of the port as specified in Section 7 (c). C. To decide questions regarding rotation of gangs and extra men. D. To investigate and adjudicate all grievances and disputes according to the procedure outlined in Section 14 (a). The authority and selection of gang bosses is governed by rule 25 of the same contract. It reads as follows : 25. Gang bosses shall be selected and removed by the Labor Relations Committee. The Union may make recommendations for additions to the gang boss list. The gang boss is in complete authority and will be held responsible for the function of his gang. The gang boss shall have the right to discharge from his gan, any man for incompetence, insubordina- tion, or failure to perform the work as required, in conformance with the provisions of the Agreement. The General Counsel does not contend that any portion of these above- mentioned contracts are illegal. They are offered as evidence as to the institu- tion of the hiring hall and the Port Labor Relations Committee, and the author- ity of gang bosses. Concluding Findings From a consideration of the evidence it is clear that True Knowledge was discriminated against by being deprived of a job in Richardson's gang #50. There is no dispute that at the time of True Knowledge's conversation with Richardson, Richardson had a job for True Knowledge and desired to employ him but conditioned the employment upon True Knowledge obtaining union clearance. The conditioning of employment upon union clearance was clearly a viola- tion of the Act, but the Union insists that it did not cause the PMA, Richardson, or anyone else to discriminate against True Knowledge. The Union contends that no agent or instrumentality over which it had control effected this dis- crimination, and that consequently it is not chargeable with that discrimina- tion in this proceeding. I find that the testimony of True Knowledge, Firenze, and McLaughlin, and the conduct of Sandin and the union representatives on the Port Labor Rela- tions Committee, establishes the fact that the Union had instituted and main- tained a custom and practice on the waterfront, whereby no one but union members could be members of a regular gang. True Knowledge testified that such a practice existed, and Richardson's request to True Knowledge to obtain clearance from the union also inferred the existence of such a practice; other- wise, Richardson, who seems to have been favorably disposed to True Knowledge, would have hired him. Firenze and McLaughlin testified unequivocally that it was their understanding that there was a practice long established on the waterfront that no one but union members could be members of a gang. It is clear from the testimony of these witnesses and Stern, a witness for the Union, that for a time in past years "permit men" were permitted to work as 1NTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 927 members of gangs. These men were registered longshoremen who were not mem- bers of the Union. At that time the union members enjoyed a preferential status under the contract. Permit men were allowed to work as longshoremen on the basis that they had a permit from the Union. When it suited the Union's pur- pose, they were permitted by the Union to become members of gangs, but when work was slack the permit men were eliminated from the gangs and were dis- patched from the hiring hall, subject to the preference in dispatch in favor of the union members. As I view this evidence, this practice concerning permit men does not show that the Union had no concern over who were members of gangs, but shows quite the contrary, that the Union in the past controlled mem- bership in gangs. In the last analysis, True Knowledge, in seeking clearance, \%as seeking to work in an analogous position to the permit men. He desired to be a nonunion member of a gang . Richardson, although he testified that con- ditioning the employment of True Knowledge upon union clearance was his personal idea," testified that in his years on the waterfront he never knew of an instance where a nonunion man was a member of a gang. In addition to this testimony, the conduct of everyone in this case seems to bear out the fact that such a practice had been long established. When Richardson told True Knowl- edge to obtain clearance, True Knowledge did not demur to this condition. He accepted it as the normal condition, and set about obtaining the clearance. It is clear from the testimony of True Knowledge that on several occasions he spoke to Sandia about clearance to become a member of Richardson's gang, and Sandin informed True Knowledge that he would attempt to obtain clearance for him through the proper committees of the Union. It is apparent and I find, in accordance with True Knowledge's testimony, that Sandia finally told True Knowledge that the Union would neither reinstate him nor give him clearance. In view of Sandin's repeated assurances to True Knowledge that he was attempt- ing to help him, it seems probable that Sandin himself was not able to persuade the proper committees of the Union to either reinstate True Knowledge or grant him clearance. Immediately after Sandin told True Knowledge that the Union would not grant him clearance, True Knowledge appealed to the Port Labor Relations Committee established under the contract. At this point there can be no question as to the nature of True Knowledge's request ; as on his first appearance, the committee ordered True Knowledge to submit his request in writing. True Knowledge wrote to the committee, "I hereby request the privilege to exercise my right to work steady in a gang." The employer representatives on the committee imme- diately made the position of the Employers clear. They stated, "that as far as they were concerned the gang boss arranges the make-up of his gang, and the Labor Relations Committee does not supervise, by approving or disapproving, the joining of a gang by an individual as long as he is a registered longshoreman." That was a very simple disavowal by the Employers of any intent to control the personnel of the gangs on a union-nonunion basis. At that point the union representatives could have taken a similar position, and made the Employers' statement the statement of the entire committee, and ended the matter, for the Employers' statement amounted to a clearance for True Knowledge. However, the union representatives on that occasion stated that they would take the Em- ployer's position "under advisement before stating their position to True Knowl- edge." Obviously they were reluctant to take the same position as the Em- ployers' representatives. As I view the evidence, at that point the Union had two alternative courses of action, each unacceptable for a different reason : (1) It could grant True v Note that I have discredited this portion of Richardson 's testimony previously. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Knowledge his clearance-but that would end the Union's long-established closed shop of the gangs on the waterfront, or (2) it could deny clearance to True Knowledge, but that would be a patent violation of the Act. The Union, there- fore attempted to do neither, it chose a third course-to equivocate, to slough off responsibility, and thus continue the practice while it sought to escape its re- sponsibility under the Act. I find that the answer of the union committee- that the gangs were the sole judges of the admission of members-to be a pretext cr device by which the Union denied clearance to True Knowledge. The state- ment of the union representatives was, in fact, no answer to the request of True Knowledge, and that is what the Union intended it to be. In accordance with its long-established practice, True Knowledge was at that moment deprived of employment as a member of Richardson's gang because he was not a member of the Union. Unless the Union affirmatively gave him clearance, he would con- tinue to be unemployed. Under those circumstances the Union chose to say that the members of the gang decided who would be new members. With the closed-shop practice of the Union in effect, True Knowledge, absent affirmative clearance, was barred from employment in the gang The union representatives knew that, and deliberately decided to allow that situation, which it favored, to continue, and thus the discrimination against True Knowledge was made effective and permanent. I find that the union was under a duty to disavow this long-established custom when True Knowledge asked for clearance. The Union understood at that time its duty under the Taft-Hartley Act, and if it had in good faith wished to abide by the Act, the Union through Sandin, or through its representatives on the Labor Relations Committee, could have given True Knowledge his clearance. Consequently, I find that through the medium of the hiring hall by which all longshore work is performed and its long-established custom and practice of restricting employment in gangs to its own members, the Union caused the PMA to discriminate against True Knowledge in his tenure of employment. The Respondent argues that no agent or instrumentality of the Union effected this discrimination. I find that the evidence is otherwise. In the first instance, Richardson, a member of the Union and a gang-boss under the contract between the employer and the Union, placed the illegal condition on the employment of True Knowledge. In that conduct he was the agent of the Union." Later when Sandin was informed of Richardson's action, lie did not disavow it, but in fact by his conduct ratified what Richardson had done, and ultimately stated that the Union would not give True Knowledge his clearance. The conduct of Richardson and Sandin was then presented to the Port Labor Relations Com- mittee set up under the contract. The Employers quickly dissociated themselves from the discriminatory practice and the discriminatory conduct of the union members, but again the union representatives in effect ratified the conduct of Richardson and Sandin, and again denied True Knowledge his clearance. Surely the Union cannot now be permitted to say that no agent or instrumentality under its control effected the discrimination. During all the time of the discrimination against True Knowledge, the Union knew each and every circumstance of the discrimination, and of the conduct of Richardson, Sandin , and its representatives on the Port Labor Relations Com- mittee, but the Union clung to its long-established closed shop in the gangs and ratified the conduct of the gang boss, its president, and its committee, in enforcing Is See Board 's decision as to dispatchers , an analogous position under the contract, in International Longshoremen 's and Warehousemen's Union and Roosevelt Stafford and Joseph Sorce, 94 NLRB 1091. INTERNAT'L LONGSHOREMEN ' S AND WAREHOUSEMEN ' S UNION 929 the closed shop . Thus it made True Knowledge the victim of a closed shop and, as far as he was concerned , a closed Union. This case is on all fours with the facts in International Longshoremen's and Warehousemen's Union , and Roosevelt Stafford and Joseph Sorce , 94 NLRB 1091. In those cases , Stafford and Sorce had been expelled by the Union. As in the case of True Knowledge the Union sought first to have the Port Labor Relations Committee delete their names from the list of registered longshoremen. When the employer representatives refused to take that action and a stalemate occurred, the dispatchers then refused to dispatch Stafford or Sorce . The dispatchers in those cases , like the gang boss in this case , were representatives and agents of the Port Labor Relations Committee , composed equally of employer and union representatives . In the prior cases the Board found that the Union "successfully prompted the discriminatory action against Stafford and Sorce , and by such conduct alone the Local clearly violated Section 8 ( b) (2) and ( 1) (A)," citing Sub-Grade Engineering Company, 93 NLRB 406; Air Products, Incorporated, 91 NLRB 1381. In the present case no prompting of the Union was necessary to initiate the discrimination . The long-established closed-shop practice performed that function , and thereafter Richardson , Sandia , and the union members of the Port Labor Relations Committee made the discrimination effective and permanent. Therefore. I find that the Union caused the PMA through the medium of the hiring-hall system to refuse to dispatch True Knowledge for longshore work, as a member of a regularly organized dock gang on the San Francisco water- front because he was no longer a member in good standing of the Union, for reasons unrelated to the payment of periodic dues, thereby violating Section 8 (b) (1) (A) and (2 ) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section III, above , occurring in connection with the operations of the PMA, have a close , intimate , and sub- stantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Union has engaged in and is engaging in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Union by its conduct described above has uni- laterally enforced a closed shop as regards the membership of longshoremen in regularly organized gangs on the San Francisco waterfront, as a part of the hiring-hall procedures set up in the contract between the Union and the PMA, and that thereby the Union has caused the PMA to deprive certain nonunion longshoremen of employment in violation of Section 8 (a) (3) of the Act, and has thereby violated Section 8 (b) (1) (A) and (2) of the Act, I shall recommend that the Union cease and desist from such illegal conduct. The record demonstrates that the Union by its unilateral imposition of a closed shop in the gangs , upon the hiring-hall procedures set up pursuant to the contract with the PMA, has effectively denied to True Knowledge the opportunity and right to earn a livelihood as a registered longshoreman employed in a regularly organized gang. By thus preventing the employment 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of True Knowledge, the Union has in effect limited and restricted the registra- tion of True Knowledge as a longshoreman, and has thus arrogated to itself .a power which under the contract and the intended operation of the hiring- hall system it had placed in the Port Labor Relations Committee. From' these facts, the nature and extent of the unfair labor practices indulged in, and their effect on the PMA and its member-employers, I am convinced that the Union was and is determined to prevent True Knowledge and other longshoremen sim- ilarly situated from obtaining employment as a member of a regularly organized gang with the PMA, and that this determination and the methods employed by the Union to enforce it indicates an attitude on its part hostile to the funda- mental rights of employees protected by the Act, and to the general purposes and policies of the Act. Respondent's past conduct persuades me that there is strong likelihood that it may in the future commit other unfair labor prac- tices proscribed by the Act in order to gain its ends. I will therefore recom- mend that the Union cease and desist from causing or attempting to cause the PMA to deny employment in any regularly organized gang to any employee or prospective employee because his membership in the Union has been ter- minated, except to the extent permitted by Section 8 (a) (3) of the Act, or in any other manner causing or attempting to cause the PMA to deny employ- ment to or otherwise discriminate against any employee or prospective employee in violation of Section 8 (a) (3) of the Act. I will also recommend that the T nion cease and desist from in any manner restraining or coercing employees or prospective employees of the PMA in the exercise of their right to retrain from any or all of the concerted activities mentioned in Section 7 of the Act, except to the extent authorized in Section 8 (a) (3) of the Act. As a corollary, I will further recommend that the Union notify the PMA, the San Francisco Port Labor Relations Committee, and the gang bosses in the San Francisco area including Richard Richardson, in writing, and furnish copies of such notice to True Knowledge, that the Union withdraws its objection to the hir- ing or dispatch of True Knowledge as a member of any regularly organized gang, and requests the PMA to offer True Knowledge employment in Richard Richardson's gang #50. I will further recommend that the Union notify the gang bosses in the San Francisco Bay area, and the dispatchers at the San Francisco hiring hall, to hire and dispatch, respectively, True Knowledge for such jobs for which he is qualified without regard to his membership or non- membership in the Union or any other labor organization and with due regard to his seniority and other rights and privileges acquired by or accorded to him as a registered longshoreman. I will also recommend that the Union make True Knowledge whole for any loss of pay suffered by him as the result of the Union's unlawful conduct by paying to him a sum of money equal to the amount he would normally have earned as wages as a member of Richard Richardson's gang #50 from the date upon which Richard Richardson first told True Knowledge to obtain clearance from the Union, March 12, 1951, to a date 5 days after the date on which the Union serves on the PMA, the Port Labor Relations Committee, the dispatchers, and gang bosses the notices recommended above. In computing the amount of back pay due to True Knowledge for these periods the customary formula of the Board, set forth in F. IV. tiVoo1wortlti Company, 90 NLRB 289, shall be applied." Upon the foregoing findings of fact and the entire record in the case, I make the following : 14 In computing back pay an appropriate deduction from net earnings shall be made of the amounts expended by True Knowledge in travel between Berkeley and San Francisco. Some portion of these expenditures would not have been required of him had he been permitted to work in Richardson 's gang #50, on the east side of the bay. GLOUCESTER GAS LIGHT COMPANY 931 CONCLUSIONS OF LAW 1. Pacific Maritime Association is an employer within the meaning of Section 2 (2) of the Act. 2. International Longshoremen's and Warehousemen's Union, Local 10, ILWU, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By causing the PMA to discriminate against employees and prospective employees in violation of Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 4. By restraining and coercing employees and prospective employees of the PMA in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] GLOUCESTER GAS LIGHT COMPANY and EVERETT E. WILE, PETITIONER and LOCAL UNION 320, THE BROTHERHOOD OF UTILITY WORKERS OF NEW ENGLAND, INC. Case No. 1-RD-131. February 3, 1953 Decision and Order Upon a petition for decertification duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Sid- ney A. Coven, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' 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 Members Murdock and Peterson]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner asserts that the Union is no longer the repre- sentative, as defined in Section 9 (a) of the Act, of the employees designated in the petition. The Union, a labor organization, is the currently recognized representative of the Employer's employees in a unit which includes the employees designated in the petition as amended at the hearing. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section ' The hearing officer referred to the Board the motion of the Union to dismiss the petition on the ground that the unit was not appropriate . For the reasons hereinafter stated this motion is hereby granted. 102 NLRB No. 94.