International Marine Terminals, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1962

137 N.L.R.B. 588 (N.L.R.B. 1962)

-588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
history was too brief , as opposed .to the earlier history of . separate bar-
gaining, to bar a petition seeking the single-employer unit. Accord-
ingly, I concur in the decision to affirm the Regional Director's unit
finding and direct an immediate election.
CHAIRMAN McCuLLocn and Mi nnn RorrERs took no part in the
consideration of the above Decision on Review.
International Marine Terminals , Inc. and John H. Jemiolo .
Local 928, International Longshoremen 's Association , AFL-CIO
and International Longshoremen 's Association , AFL-CIO and
John H. Jemiolo
International Marine Terminals , Inc. and Edward L. Jemiolo
Local 928, International Longshoremen 's Association , AFL-CIO
and International Longshoremen 's Association , AFL-CIO and
Edward L. Jemiolo
International Marine Terminals, Inc. and John Murphy
.Local 928, International Longshoremen 's Association , AFL-CIO
and International Longshoremen 's Association , AFL-CIO and
John Murphy
International Marine Terminals, Inc. and Thomas Murphy
Local 928, International Longshoremen 's Association, AFL-CIO
and International Longshoremen 's Association , AFL-CIO and
Thomas Murphy. Cases Nos. 3-CA-1520-1, 3-CB-486-1, 3-CA-
1520-2, 3-CB-486-Pd, 3-CA1520-3, 3-CB-486-3, 3-CA--1520-4, and
3-CB-486-4. June 13, 1962
DECISION AND ORDER
On November 30, 1961, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had not engaged in certain unfair labor prac-
tices and recommending that the complaint be dismissed, as set forth
in the Intermediate Report attached hereto. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a supporting
brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby . affirmed . The Board has considered the In-
termediate Report, the exceptions and briefs , and the entire record
in this case , and hereby adopts the findings , .conclusions, and recom-
mendations of the Trial Examiner , to the extent consistent with our
opinion hereinafter.
137 NLRB No. 70.
INTERNATIONAL MARINE TERMINALS, INC . 589
We agree with the Trial Examiner that Respondent Company and
Respondent Unions did not violate Section 8(a) (1) and (3) and
8(b) (2) and (1) (A) of the Act, respectively, by entering into and
maintaining an unlawful hiring arrangement, understanding, or
practice.
The Respondents are parties to a collective-bargaining agreement
which provides for the exclusive hiring of longshoremen through
"the Union." The term "The Union," according to the contract, refers
to the International Longshoremen's Association, AFL-CIO, and
Local 928, International Longshoremen's Association, AFL-CIO.
The contract provides for hiring preference in the following order
and in the precise terms set forth below :
Group 1. Employees with at least 4 or more years in the long-
shore-trade in the area, who have passed a journeyman's exami-
nation, and have been employed at least one year out of the last
4 years under a contract between their then employer and the
Union.
Group 2. Employees with at least 4 years in the longshore trade
in the area, and who mave passed a journeyman's examination.
Group 3. Employees with at least 2 years experience in the
longshore-trade in the area, who have passed a journeyman's
examination and who has [sic] been employed at least 6 months
in the last 3 years under a contract between his employer and the
Union.
Group 4. Employees with at least 1 year experience in the
longshore trade in the area and who have passed a journeyman's
examination.
Group 5. All other applicants.
In practice, the Respondent Union established two lists of em-
ployees for referral purposes, based on questionnaires distributed to
job applicants attending a shapeup. These lists were composed of:
(1) Men with 4 or more years' experience on the waterfront; and
(2) men with less than 4 years' experience on the waterfront.
In the New York Times case,' the Board held that somewhat similar
contractual provisions were not unlawful. For the reasons stated in
that case, Chairman McCulloch and Member Fanning are of the opin-
ion that the contract criteria for job referral based on past work
experience under a union contract are not in the instant case un-
lawful. Thus the hiring criteria herein, as in the New York Times
case, also relate to an appropriate consideration in the selection of
employees, namely, experience in the area obtained while working
for members of the employer-association involved. Moreover, there
i New York Mailers' Union, Local 6 International Typographical Union, AFL-CIO (New
York Times Company, and Pubi8her8' Association of New York City), 133 NLRB 1052.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no evidence in the instant case that the required work experience
necessarily was obtained under contracts containing union-security
clauses. If it had been demonstrated that the experience in question
necessarily had been obtained under contracts containing such clauses,
there would be a basis for finding in the present case discriminatory
preference for union members.
As an additional ground for finding no violation here, Chairman
McCulloch and Member Fanning rely on the fact that the aforesaid
contract provisions were never put into practice. Member Leedom
joins them in this ground only. Thus, under the parties' practice,
placement on referral was determined exclusively by years of experi-
ence in the trade; and no consideration appears to have been given
to previous employment under contracts with the Union. We note,
moreover, that it does not appear that the contract in question was
ever signed; and it also appears that the revision of the hiring list
based on years of experience alone occurred prior to the filing of the
unfair labor practice charge. The failure to enforce the contract
has dissipated any possible discriminatory effect of the provision in
the contract and distribution of questionnaires which sought informa-
tion only as to years of waterfront experience was actual notice to
employees of the true intention of the parties not to enforce the hiring
preference provisions here in issue 2 As we have found that Respond-
ents did not commit unfair labor practices we shall dismiss the
complaint.
[The Board dismissed the complaint.]
MEMBERS RODGERS and BROWN took no part in the consideration of
the above Decision and Order.
-Cf. Nassau and Suffolk Contractors' Association, Inc, et at., 118 NLRB 174, 175.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Charges having been issued and served in each of the above-entitled cases; an
order consolidating said cases, a complaint and notice of hearing thereon having
been issued and served by the General Counsel of the National Labor Relations
Board, and answers having been filed by the above-named Respondents, a hearing
involving allegations of unfair labor practices in violation of Section 8(a)(1) and
(3) and 8(b) (1) (A), (2), and (5) of the National Labor Relations Act, as amended,
was held in Buffalo, New York, on October 17 and 18, 1961, before the duly desig-
nated Trial Examiner.
At the hearing all parties were represented by counsel and were afforded full
opportunity to present evidence pertinent to the issues, to argue orally, and to file
briefs. Briefs have been received from General Counsel and the Respondent IMT.
Disposition of the Respondent's motions to dismiss the complaint, upon which
ruling was reserved at the close of the hearing, is made by the following findings,
conclusions, and recommendations.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
INTERNATIONAL MARINE TERMINALS, INC. 591
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
International Marine Terminals, Inc., is a Delaware corporation, with offices and
longshoring and stevedoring facilities in Buffalo, New York, where it is engaged
primarily in the loading and unloading of ships engaged in transporting goods in
interstate and foreign commerce.
During the 12 months before issuance of the complaint this Respondent derived
a gross revenue of more than $200,000, by furnishing services to firms, shippers and
transportation companies, and interstate and international common carriers operating,
between and among the various States of the United States and between various
States and foreign countries.
This Respondent admits and it is found that it is engaged in commerce within
the meaning of the Act. The Respondent Unions do not contest the Board's com-
merce jurisdiction.
II. THE RESPONDENT UNIONS
Local 928 , International Longshoremen 's Association , AFL-CIO, and International
Longshoremen 's Association, AFL-CIO, are labor organizations within the mean-
ing of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting and major issues
The events at issue arose shortly after the Respondent Employer began stevedoring
operations on the Buffalo waterfront in the spring of 1960. In brief, the three chief
issues raised by the complaint are: (1) Whether or not the Respondents have
"entered into" and "maintained" an unlawful hiring "understanding or practice"; (2)
whether or not the four Charging Parties (John and Edward Jemiolo and John and
Thomas Murphy) were unlawfully "denied employment"; and (3) whether or not the
Respondent Local's initiation fee of $125 is unlawfully "excessive or discriminatory.
B. Facts relevant to the hiring issues in general
Facts here summarized are drawn from undisputed evidence:
(1) It appears that not until 1959 did the Buffalo waterfront become active as a
port for the handling of general cargo. The first company that year to open general
cargo stevedoring operations was the Pittston Stevedoring Company.
(2) The Respondent Employer, hereinafter referred to as IMT, began its steve-
doring operations in Buffalo in April 1960. Shortly before starting company officials
met with representatives of the Respondent Unions to discuss prevailing wages and
working conditions. About a week before April 23, the date when IMT worked its
first ship, its representatives requested and received from union representatives a
list of longshoremen who had worked for Pittston.
(3) On April 23 and thereafter until mid-August IMT hired at its own docks
from this "Pittston" list at shapeups conducted by an IMT representative
(4) In July IMT and the Respondent Unions entered into a collective-bargaining
contract.'
(5) This contract contains the following provisions pertaining to employment
and relevant to specific issues raised by the complaint:
(Art. 7) Employment.
SECTION 1. The Company agrees that during the period that this agreement
is in effect. it will procure all longshoremen, tractor drivers, checkers, watchmen
and winchmen from the employment office of the Union. provided, however,
that the prospective employees are satisfactory to the Company, the Company
reserving the right at all times to reject any employee in its sole discretion.
SEC. 2 In referring employees to the Company, the Union will refer com-
petent and dependable applicants in the following order of priority.
Group I Employees with at least 4 or more years in the longshore-trade in
the area. who have passed a iourneymari s examination. and have been employed-
at least one year out of the last 4 years under a contract between their then-
employer and the Union.
'Although for reasons immaterial here the contract was not reduced to writing until,
September, these appears to be no question that it became effective in July
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Group 2. Employees with at least 4 years in the longshore trade in the area,
and who have passed a journeyman' s examination.
Group 3. Employees with at least 2 years experience in the longshore-trade
in the area , who have passed a journeyman 's examination and who has [sic]
been employed at least 6 months in the last 3 years under a contract between
his employer and the Union.
Group 4. Employees with at least 1 year experience in the longshore trade
in the area and who have passed a journeyman 's examination.
Group S. All other applicants.
SEC. 3. The word "area" as used herein shall mean the Country of Erie... .
SEC. 4. In referring applicants to the Company, the Union agrees that it shall
do so without discrimination and without regard to union membership or non-
membership of any applicant who meets the above requirements . The Union
further agrees to maintain, administer and operate its employment of office in
accordance with the law and assume full responsibility therefor.
SEC. 5. In the event that the Union shall fail or be unable for any reason
to furnish the Company with employees required by it, the Company shall be
free to fill any such vacancy from any source.
The contract also provided for the setting up of a permanent "appeals board," upon
which the employer, an impartial arbiter, and the Unions were to be represented, to
pass upon any grievance raised by any applicant as to his placement in or exclusion
from any of the "groups" established in article 7.
(6) Early in August, following the reaching of the above-noted agreement, and in
preparation for the opening of a union hiring hall, the Unions asked for and obtained
from IMT a list of all employees it had hired up to that time with their hiring dates
noted.
(7) A union steward then copied into a hiring book the names appearing on this
IMT list, in order of the hiring dates.
(8) About the same time the Unions distributed among longshoremen appearing
for shapeups a questionnaire soliciting information as to the number of years each
applicant had worked in any capacity as a longshoreman in that area.
(9) Based upon information thus received from job applicants themselves, a
committee composed of union officials determined the group placement of the appli-
cant upon the hiring list-those with 4 years or more of longshore experience in
group 1, and those with less experience in group 2.
(10) The method of shapeup hirings thereafter was adjusted to this grouping. The
same hiring book, prepared from the IMT seniority list, was used. The steward drew
a green line through the names of applicants who had less than 4 years' experience-
these having been classified by the committee as being in group 2. At shapeups he
called first, in the seniority order as listed in the book, all names through which no
green line had been drawn, and then, also in seniority order, the names through which
the line had been drawn.
(11) There is no evidence that any longshoreman or job applicant has formally
raised as a grievance with IMT his placement in either of the two groupings so far
established.
(12) There is no evidence that any longshoreman or applicant was, on the basis
of waterfront experience, improperly placed in group 2 instead of group 1.
(13) There is no evidence in the record as to whether any or all individuals listed
in group 1 were or were not union members.
C. Conclusions drawn from the foregoing facts
In his brief, General Counsel says:
It is respectfully submitted that from the April 23, 1960, initial date of stevedore
hiring by IMT, and continuing into the Sec. 10(b) period (May 3 as to IMT
and May 10 as to the Unions), the Unions imposed upon IMT a hiring arrange-
ment, in which IMT acquiesced, over which the Unions maintained unilateral
control and which control was not exercised in a nondiscriminatory manner.
He further states that although the Supreme Court revoked the Mountain-Pacific
doctrine (in Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America V. N.L.R.B. (Los Angeles-Seattle Motor Express),
365 U.S. 667) "it is still possible for the Board to infer from the nature of a contract
clause, or an oral understanding or arrangement, an intent to give hiring preference on
a basis of union status."
As to what is "still possible for the Board to infer," the Trial Examiner is reminded
of a remark made to him by an artist in Berlin, who had been active in the under-
INTERNATIONAL MARINE TERMINALS, INC. 593
ground: "Nicht ist unmoglich"-"Nothing is impossible." Yet while he must agree
with General Counsel that the possibilities of what the Board may "infer" as to
"intent" are unlimited, The Trial Examiner doubts if the Board is likely to find a
practice discriminatory merely on the ground that it was "intended" to be so. On
the contrary, in a recent Board decision (Local 367, International Brotherhood of
Electrical Workers, AFL-CIO (Easton Branch, Penn-Del-Jersey Chapter, National
Electrical Contractors Association), 134 NLRB 132) the three-member panel, con-
sisting of Chairman McCulloch and Members Rodgers -and Leedom, adopted without
comment, in a somewhat similar case, the same Trial Examiner's conclusion which
followed his finding that no actual discrimination had occurred: "Whether or not
an unlawful motive existed is immaterial. Our jails would bulge and hangmen
would be overworked if motive warranted conviction."
As to General Counsel's first contention, quoted above, the Trial Examiner finds
not the slightest evidence that at any time while IMT was conducting the shapeups
through its own representative was any applicant discriminated against, whether
because of union pressure, union membership or nonmembership, or for any other
reason. Nor does General Counsel cite any specific incident of discrimination in
the complaint or in his brief.
Concerning the hiring provisions in the contract entered into in July, General
Counsel points to none which he claims to be, per se, unlawful. In substance,
General Counsel appears to argue that because the meaning of certain group cri-
teria is unclear, such lack of clarity "manifests a clear intent to give preference for
hiring on the basis of union status." From this basis General Counsel then argues
that an "arrangement and practice" unlawful in terms of 8(a)(1) and (3) and
8(b)(1)(A) and (2) actually existed. Neither logic nor the record, in the opinion
of the Trial Examiner, warrants the conclusion sought.
It is here noted that similar group criteria were contained in the contract in-
volved in the recently decided Electrical Workers case cited above, and there Gen-
eral Counsel specifically disclaimed that the contract was unlawful.
In short, the Trial Examiner concludes and finds that evidence is insufficient to
sustain General Counsel's contentions as to the unlawfulness of the hiring practices
in general or the contract provisions or procedures pursuant thereto.
D. Facts relevant to specific claims of discrimination
(1) All four of the individuals filing charges, named in section A, above, at the
time of the hearing were only part-time stevedores, having full-time jobs with other
employers.
,(2) In mid-August 1960, at the time the hiring list was regrouped according
to number of years of service on the waterfront, none of the four had had 4 years
of such experience.
(3) Upon the regrouping, each of these four were placed in group 2-but in the
same relative position in that group as to their seniority with IMT.
(4) When three of the four appeared for shapeup on the morning of September 9,
1960, their names were not called. There is no evidence that John Murphy, one
of the complainants, was at the hiring hall that morning.
(5) It is undisputed that Thomas Murphy, one of the complainants, was No. 127
on the hiring list,2 and that the other three had, because of their lower seniority
standing, higher numbers on the hiring list. It is likewise undisputed that only
some 80 or 90 longshoremen were needed on the morning of September 9.
(6) General Counsel urges no discrimination on any other date than September
9 as to these or any other individuals.
(7) Each of the four testified that he had worked on the docks at various times
since September 9-apparently being called as needed from their standing in group 2.
E. Conclusions as to the foregoing facts
In the opinion of the Trial Examiner, the evidence is insufficient to support a find-
ing of actual unlawful discrimination in the failure to hire any one of the four indi-
viduals involved on September 9, 1960, or at any time thereafter. One was not at
the hiring hall, on September 9, so far as the record shows. The others were not
reached and called only because not enough men were ordered by the Company.
Since it has previously been found that the regrouping of the hiring list was
neither unlawful per se nor unlawfully discriminatory as applied, it clearly may not
be maintained that the failure to call the names of the three complainants on
2IIe was at the top of group 2
649856-63-vol. 137-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the morning of September 9 was unlawfully discriminatory, merely because the re-
grouping had placed them farther down on the hiring list.
F. The issue of the initiation fee
In July 1960, Local 982 raised its initiation fee from $25 to $125. General
Counsel urges that this increase was "excessive " and in violation of Section 8(b) (5)
of the Act.3
There is no dispute as to the fact of the increases . The Trial Examiner is unable
to agree with General Counsel's claim that the new fee is "excessive or discrimina-
tory under all the circumstances."
Evidence fully establishes that at the time Local 928 undertook to implement the
contract just reached , to set up and operate a hiring hall, a cons derable increase
in its expenses was reasonably to be anticipated It was then a small local-some
50 or 60 members. Despite the increase its membership appears to have about
doubled-and there is not the slightest evidence that any applicant was prevented
from joining because of the increase in the initiation fee.
It is undisputed , also, that ILA initiation fees for general cargo locals in the east
coast area range from $50 to $300, and at gulf coast ports from $200 to $500.
In short, the Trial Examiner does not believe General Counsel has presented
sufficient evidence to sustain this allegation of the complaint.
RECOMMENDATION
Having found that the preponderance of evidence fails to sustain the allegations
of the complaint as to unlawful acts on the part of any of the Respondents, the
Trial Examiner will recommend that the complaint be dismissed in its entirety.
3 This section makes it an unfair labor practice for a labor organization " to require of
employees covered by an agreement authorized under subsection ( a) (3) the payment, as
a condition precedent to becoming a member of such organization , of a fee in an amount
which the Board finds excessive or discriminatory under all the circumstances . . "
Kelly & Picerne , Inc. and Providence , Pawtucket and Central
Falls Carpenters ' District Council a/w United Brotherhood of
Carpenters and Joiners of America . Case No. 1-CA-3169. June
13, 1962
SUPPLEMENTAL DECISION AND ORDER
On May 15, 1961, the Board issued its Decision and Order in the
above-entitled case in which it found, inter alia, that the Respondent,
Kelly & Picerne, Inc., violated Section 8 (a) (3) of the Act by subcon-
tracting its rough carpentry work and discharging its carpenters
because of their union membership and activities.' To remedy this
violation, the Board ordered the Respondent to resume its rough car-
pentry operations and to offer reinstatement to these carpenters
without prejudice to their seniority or other rights, and to make them
whole for any loss of pay suffered as a result of the discrimination
practiced against them.
Thereafter, the Board petitioned the Court of Appeals for the First
Circuit for enforcement of its Order and, on February 14, 1962, the
court rendered its decision in this matter. In its opinion, the court
1131 NLRB 543.
137 NLRB No. 77.