Int'l Longshoremen's and Warehousemen's Union

National Labor Relations Board - Board Decisions

Sep 22, 1958

121 N.L.R.B. 938 (N.L.R.B. 1958)

938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As nonregular employees were previously excluded, we shall adopt
the Regional Director's conclusion and recommendation, sustain the
challenges, and order a runoff election to be held between the Petitioner
and the Intervenor
[The Board sustained the challenges to the ballots of the mdivid-
uals listed below 4 and ordered the Regional Director to conduct a
runoff election among the employees in the appropriate unit set forth
in the Decision and Direction of Election of May 20, 1958 ]
CHAIRMAN LEEDOM and MEMBER FANNING took no part in the con-
sideration of the above Supplemental Decision and Direction of
Runoff Election
4 Willie C Watford , Henry R Righter , Emmette S Atkinson , Johnnie H Baxley,
Paul Dobson , William E O 'Neal, William H Monroe, Niel E Tish Jackson I Watson,
Samuel D Parker , John H Conn , Dorris M Dobbins Berlin W Gadberry Julius M
Wiggins, and Coleman C Dees
International Longshoremen 's and Warehousemen 's Union, Local
No. 10, Independent ; and International Longshoremen's and
Warehousemen's Union, Independent [Pacific Maritime Asso-
ciation] and Milton Moore. Case No 2D-CB--529 September 22,
1958
DECISION AND ORDER
On December 17, 1957, Trial Examiner Martin S Bennett issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto Thereafter the Respondents
filed exceptions to the Intermediate Report together with 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 Inter-
mediate Report, the exceptions, the brief, and the entire record in
the ease, and finds merit in the exceptions of the Respondents Ac-
cordingly, the Board adopts the findings of fact, but not the conclu-
sions or recommendations of the Trial Examiner
As set forth in the Intermediate Report, the Respondents are parties
to a hiring-hall arrangement with an employer group known as the
Pacific Maritime Association Moore, the Charging Party, was dis-
patched to a longshore job by Respondent Local 10 through the
agency of a sister local of which Moore was a member On reporting
to the job, Moore got into an argument with the gang boss and al-
121 NLRB No 66
INT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 939
legedly cursed the latter in vile language. The gang boss thereupon
fired Moore. A few weeks later the gang boss reported the incident
to Respondent Local 10's president who wrote the sister local asking
that Moore not be dispatched again for any longshore work. The
president of Local 10 explained :
I regret having to take this action, but find it necessary. Our
own members who are guilty of similar actions are dealt with by
our Grievance and Labor Relations Committees, and we cannot
tolerate disruptions of this kind.
As a result of this action of Respondent Local 10, Moore has been
refused referral to any longshore jobs.
The General Counsel does not question the validity of the hiring-
hall arrangement,' the general hiring practice pursuant thereto, or
the discharge of Moore. Nor does the General Counsel contend that
Moore was denied referral to longshore work for any reason con-
nected with the latter's union activities. The General Counsel's com-
plaint is based entirely on a simple legal proposition: that a union
operating a lawful-hiring hall violates Section 8 (b) (2) of the Act
if it refuses to dispatch an individual to a job for any reason other
than failure to tender the periodic dues and initiation fees required
as a condition of acquiring or retaining membership in that labor
organization. In finding a violation of the Act, the Trial Examiner
adopted the theory of the complaint "on the assumption" that a law-
ful hiring-hall arrangement "may be equated with a legal union
shop." Since Moore was not refused referral to longshore work be-
cause of a failure to tender periodic dues and initiation fees, the
Trial Examiner concluded that the Respondents had thereby violated
.Section8 (b) (2) and (1) (A) of the Act.
The Trial Examiner has not cited any provision of the National
Labor Relations Act or any decision of the Board or the courts to
support his "assumption" that a lawful hiring-hall arrangement is
equivalent to a legal union shop. Nor have we been able to find any
such supporting authority. The proviso clause to Section 8 (a) (3)
which establishes the legality of a union shop provides only that an
agreement requiring membership in a labor organization as a condi-
tion of employment may be lawful if it meets certain prescribed con-
ditions. The proviso clause does not mention hiring halls. A lawful
union-security agreement thus sanctions discrimination against an
employee for the nonfulfillment of certain union obligations. On the
other hand, a hiring-hall provision to be lawful must be completely
'In view of the position taken by the General Counsel , the Board does not decide in
this case whether the hiring -hall arrangement or the practice pursuant thereto conforms
with the requirements of a legal hiring-hall arrangement set forth in Mountain Pacific
Chapter of the Associated General Contractors , Inc, 119 NLRB 883.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nondiscriminatory In the recent Mountain Pacific case,2 the Board
stated that the encouragement of union membership which stems
from unfettered union control of the hiring process would be negated
and a hiring-hall agreement would be held lawful if it contained three
explicit provisions The first of these is that
Selection of applicants for referral to jobs shall be on a nondis-
criminatory basis and shall not be based on, or in any way affected
by, union membership, bylaws, rules, regulations, constitutional,
provisions, or any other aspect or obligation of union member-
ship, policies, or requirements
Accordingly, a hiring-hall agreement which gave the union the right
to refuse job referral to a union member delinquent in the payment of
dues would be unlawful, and a union operating a lawful hiring hall
would violate Section 8 (b) (2) if it refused to dispatch a union mem-
ber because of dues delinquency Hence, the Trial Examiner's theory
that a lawful hiring hall is equivalent to a lawful union shop is unten-
able and must be rejected.
As the Respondent Local forbade the further dispatch of Moore
through the hiring hall for reasons "unrelated to union membership'
or the performance of union obligations," 3 the discrimination prac-
ticed against Moore at the direction of the Respondent Local did not
tend to encourage or discourage union membership We find, contrary
to the Trial Examiner, that by their conduct with respect to Moore
the Respondents did not cause or attempt to cause employers to dis-
criminate against him in violation of Section 8 (a) (3), and therefore
did not violate Section 8 (b) (2) and (1) (A) of the Act 4 We shall
therefore dismiss the complaint in its entirety 5
[The Board dismissed the complaint ]
MEMBER JENKINS, dissenting
I cannot agree with my colleagues that the complaint against the,
Unions in this case should be dismissed
The complaint alleged that since about May 1, 1957, the Unions
violated Section 8 (b) (2) and (1) (A) of the Act, in the operation
2Mountain Pacific Chapter of the Associated General Contractors , Inc, inpra, p 897
3Daugherty Company, Inc, 112 NLRB 986, 989
4 The Tiial Examiner is incorrect in his statement that the Court of Appeals for the
Ninth Circuit has found similar refusals to dispatch under this identical hiring hall to.
be violative of the Act In the two cases cited, employees were denied referral for union
reasons, i e, because they had been ousted from, or had been denied membership in, the
respondent union N L R B v Intel national Longshoremen's & Warehousemen=s,
Union, et at , 210 F 2d 581 (C A 9) N L R B v International Longshoremen's &
Warehousemen's Union, at at, 214 F 2d 778 (C A 9) In the present case Moore was
denied referral because of his conduct on a job and not for union reasons
5 The dissent is based upon a fundamental misconception The Trial Examiner did not
find , and the evidence does not establish , that the "Unions caused Moore to be dis-
criminated against in substance because he refused to comply with union requirements "
Moore did comply with all union requirements for referral He was refused referral on
INT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 941
of their exclusive longshoremen's hiring-hall agreement with Pacific
Maritime Association, by refusing to dispatch the complainant,
Moore. The complaint further alleged that the Unions refused to
dispatch Moore for reasons other than arrears of dues.
The evidence shows and the Trial Examiner found that the Unions,
when unable to fill PMA's requests for longshoremen made pursuant
to this agreement, called on the hiring hall operated by a sister local,
Local 6, to supply such members as had purchased an appropriate
permit card for the current month. On April 30, 1957, however, the
Unions sent a letter to Dispatcher Joe Gomes, the union official operat-
ing Local 6's hiring hall, instructing him that Moore, although a
member of Local 6 with a current permit card, should not be dis-
patched to any longshore work. The letter further stated that this
action against Moore was based on a complaint by one Heffernan, a
union member who was also a gang boss for an employer-member of
PMA, to the effect that on an earlier occasion 'he had discharged
Moore from a longshore job for refusing Heffernan's request to see
Moore's union permit card and for responding instead with profanity.
As a result, Moore has been effectively barred from longshore em-
ployment on the waterfront. Although the General Counsel intro-
duced evidence of the circumstances surrounding Moore's earlier dis-
charge, he stated that he was doing so to establish the background,
and not to prove any separate unfair labor practice. The Unions
disputed only some irrelevant details of this background 6
On these facts the Trial Examiner found, properly in my opinion,
that the Unions' refusal to dispatch Moore to longshore jobs after
May 1, 1957, was violative of the Act as alleged. I agree with him
that the Unions caused Moore to be discriminated against in substance
because he refused to comply with union requirements. I cannot
agree with my colleagues that the General Counsel has excluded this
factor from the case. On the contrary, I note the broad allegation
of the complaint that the discrimination was for a reason other than
arrears of dues-an allegation clearly encompassing the Unions' rea-
son in this case. I also note the General Counsel's statement on the
record that he was attacking the hiring-hall practice with respect to
Moore.
instructions from Respondent Local 10 because of the complaint registered by Gang Boss
Heffernan against the cursing to which he had been subjected when he had asked Moore
for his permit card. Heffernan 's testimony , his April 28, 1957, letter to Respondent
Local 10, and the latter's April 30 covering letter to Local 6 so show.
O Moore testified from the witness stand that it was Heffernan who first engaged in
profanity and started the verbal altercation which culminated in the discharge . Heffernan
did not appear before the Trial Examiner , but a stipulation in the record states that he
would have testified that he approached Moore at his work station and asked Moore for
his union permit card , but that Moore refused in no uncertain terms and started using
profanity , whereupon he was discharged.
The Trial Examiner found it unnecessary to resolve this conflicting testimony as to
who first uttered profanity.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In these circumstances I am unable to understand why the majority
state that it is I rather than they whose decision is based on a funda-
mental misconception Indeed, they expressly admit that the Unions
found Moore's conduct objectionable because, as the record clearly
shows, it stemmed from Moore's refusal to exhibit his union permit,
card to Heffernan
It is true that the Trial Examiner, by way of dictum, indicated that
under the hiring-hall agreement the Unions would have a valid de-
fense if their reason for discriminating against Moore was nonpay-
ment of union dues or initiation fees Because of the absence of an
applicable union-security contract I agree with my colleagues in re-
jecting this dictum But I strenuously disagree with them that the
complaint should therefore be dismissed, despite the existence of the
alleged unfair labor practices, just because of this erroneous dictum..
of the Trial Examiner Indeed, the Unions' principal defense to the
unfair labor practices seems tantamount to a confession of unlawful
discrimination, for they argue that the General Counsel, as a matter
of procedure, did not allege Moore's earlier discharge to be unlawful,
and this entitled them to bar Moore forever after from employment
through their exclusive waterfront hiring hall
Apart from these considerations, moreover, I find that the Unions
have failed in this case to prove the validity of the governing hiring-
hall agreement under the standards set forth in Mountavm Pace fic
Chapter of The Associated General Contractors Inc , et al , 119 NLRB.
883 Consequently, their affirmative defense to the prima faces case
proved by the General Counsel and found by the Trial Examiner
must in any event fail
For the foregoing reasons, I would find that the Unions violated
Section 8 (b) (2) and (1) (A) as alleged
MEMBER RODGERS took no part in the consideration of the above
Decision and Order
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding is brought under Section 10 (b) of the National Labor Relations
Act, 61 Stat 136, pursuant to a complaint issued by the General Counsel of the
National Labor Relations Board against International Longshoremen's and Ware-
housemen's Union, Independent, and also against its Local No 10, both Respondents
The complaint dated October 22, 1957, as amended, alleged that Respondents had
engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and
(2) of the Act Copies of the complaint, the charges upon which it was based, and
notice of hearing thereon were duly served upon Respondents
The complaint, as amended, alleged that (1) Respondents are parties to a collec-
tive-bargaining agreement with Pacific Maritime Association, herein called PMA, a
California corporation which negotiates collective-bargaining agreements in behalf
of a number of member companies operating oceangoing vessels, (2) this contract
covers conditions of employment for employees engaged in longshore work in the
San Francisco Bay area, (3) this contract further provides that all employees per-
INT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 943
forming such work shall be hired by PMA exclusively through the hiring hall main-
tained and operated jointly by Respondents and PMA; (4) when persons are not
available for dispatch, Respondents call upon Local No. 6, a sister local of Local
No. 10, to dispatch men in the number needed through its own exclusive hiring
hall; I (5) since on or about May 1, 1957, Respondents have refused to dispatch
Milton Moore for employment through the longshore hiring hall for reasons other
than his nontender of periodic dues and initiation fees. Respondents' answers denied
the commission of any unfair labor practices. Pursuant to notice, a hearing' was
held at San Francisco, California, on November 7, 1957, before the duly designated
Trial Examiner. The parties were represented by counsel who were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
relevant evidence. Various motions to dismiss and strike portions of the. complaint
on the grounds that an unfair labor practice was not stated, and that the charge
against the International was not filed within 6 months of the commission of the
alleged unfair labor practices, were denied. At the close of the hearing, the parties
were given an opportunity to argue orally and to file briefs. Both counsel presented
oral argument and a brief has been received from Respondents.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Pacific Maritime Association is a California corporation maintaining its principal
office at San Francisco, California, which acts as collective-bargaining agent and
negotiates collective-bargaining agreements in behalf of a large number of member
companies. These member companies operate oceangoing vessels engaged in inter-
state and foreign commerce and, their annual gross income is in excess.of $10,000,000.
I find that the operations of the Employers affect commerce and that it would
effectuate the purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
International Longshoremen's and Warehousemen's Union, Independent, its Local
No. 10, and its Local No. 6, are labor organizations admitting to membership the
employees of the Employers.
III. THE UNFAIR LABOR PRACTICES
A. The issue
Moore is and has been at all times material herein a member in good standing
of Longshoremen's Local 6. This organization has refused to dispatch him for
longshore work falling within the jurisdiction of its sister local, Local 10, pursuant
to instructions from the latter, since approximately mid-May of 1957, because of
an incident involving Moore on a work assignment occurring on or about March 29
of that year. This dispatch system is operated under the provisions of a waterfront
hiring hall established by PMA in behalf of its member companies with the Inter-
national in behalf of itself and all of its locals in the States of California, Oregon,
and Washington, including Local 10. The provisions of this hiring hall are reflected
in the Pacific Coast Longshore Agreement of 1951-53 received in evidence herein.
The issue is whether Respondent International and Respondent Local 10, by instruct-
ing Local 6 to refuse to dispatch Moore and the subsequent carrying out of this
instruction by the latter, have engaged in conduct violative of Section 8 (b) (2)
and (1 ) (A) of the Act.
B. Sequence of events
1. The dispatch system
Moore is a member of Local 6, which maintains its offices in Oakland, and has
never belonged to Local 10. He has been a member of Local 6 since 1945 and has
been in good standing at all times material herein. Local 6 is known as a warehouse
local because its membership is primarily engaged in the performance of that type
of work It operates a hiring hall and dispatch system substantially similar to that
'As will appear Local 6 is primarily a warehouse local and Local 10 is a longshore or
stevedoring local.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operated by Local 10 whose membership performs work primarily of a stevedoring
or longshore nature. As requested , administrative notice has been taken of the
operations of the Local 10 hiring-hall system described in International Longshore-
men's and Warehousemen's Union, Local 10 (Pacific Maritime Association), 102
NLRB 907, and International Longshoremen 's and Warehousemen 's Union Local 10
(Waterfront Employers Association of the Pacific Coast), 94 NLRB 1091.
As set forth in those cases , the International is immediately responsible for the
establishment of the hiring hall but its day-to-day administration is in the hands of
the various locals, including Respondent Local 10. In addition , the Longshore
Agreement received in evidence herein reflects the same operating technique. From
time to time Local 10, a respondent herein , lacks adequate manpower to fill all re-
quests for longshoremen and it then requests its sister local, Local 6 , not a respondent
herein , to furnish additional men. As the longshore work carries a higher rate of
pay than warehouse work, inevitably Local 6 members are attracted to such work.
In order for workers utilizing Local 6 facilities to obtain work , the following dis-
patch system , known , as the plugboard , is utilized . Moore, as a member of Local 6,
is furnished with two plugs each carrying a number assigned to him. When he is out
of work, Moore proceeds to the hiring hall and places the plug with his number in the
plugboard . When his number is reached and announced Moore proceeds to the
dispatcher 's office in the hiring hall and the latter gives him a dispatch slip to a
particular job. This particular board relates solely to warehouse work within the
jurisdiction of Local 6.
A separate parallel plugboard is maintained by Local 6 for candidates for longshore
work . A Local 6 member desiring such longshore work , in the event Local 10
requests additional manpower , plugs in on both boards; that is, he puts a plug in the
warehouse board and another plug in the longshore board . The dispatcher then
supplies him with a dispatch slip to the longshore job, if his number is reached. It
is required , however , if he is interested in longshore work, to plug into both boards,
and to take the first job that comes along on either board . It would appear that
Moore or the would-be longshore worker must present the dispatch slip when he
reports on a longshore job.
At this point , it is to be noted that a Local 6 member is not eligible , solely because
of his membership in that organization , to be considered for longshore work. He is
required each month to buy a permit card . The card for May is typical and reads
as follows:
884 MAY 1957
NAME
SOCIAL SECURITY NUMBER
The bearer of this card, member of Local ________________, has been cleared
by his union to be dispatched for extra longshore work through the dispatch hall
of his own local union.
In order to obtain this permit card, the member is privileged to pay $2 a month in
addition to his normal monthly dues of $4.50. Only if he has purchased such a
permit card each month, in advance , will the member, when and if his plug is reached
on the longshore board and his number called, be dispatched for such longshore work.
Moore, it is to be noted, had at all times herein duly purchased a monthly permit
card. Specifically, he had regularly purchased a permit card for about 2 years prior
to the instant dispute and more particularly had such a card for the month of May
1957. As will appear, Local 6 refused to sell him a card for the month of June,
under circumstances set forth below; this action automatically deprived him of all
further longshore work.
At this point, it is found in view of the foregoing that Local 6 is the agent for
Local 10 as well as the International in the operation of the dispatch system for Local
6 members seeking longshore work. As noted, the instant complaint attacks only
the conduct of Local 10 and its parent International.
2. The March 29 incident
On or about March 29, 1957, Moore 's number was duly reached on the longshore
board . As Moore testified, Dispatcher Joe Gomes , an official and agent of Local 6
and therefore of the other respondents as well , in this context, sent Moore to the
Oakland Army Base where he reported to Gang Boss E. Heffernan . Moore had not
previously worked for Heffernan and has not since . Moore and a number of others,
apparently equally divided between Local 6 and Local 10 membership, were assigned
to work on a ship . As for the precise position of the gang boss, the Board found in
INT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 945
International Longshoremen 's and Warehousemen 's Union , Local 10 (Pacific Mari-
time Association ), supra, as follows: 2
25. Gang bosses shall be selected and removed by the Labor Relations Com-
mittee. 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 . 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.
Moore reported for work at the customary starting time of 8 a . in. At approxi-
mately 8:45 a. in. Gang boss Heffernan 3 asked to see Moore 's card; as will appear,
this was a reference to his permit card. There was an exchange of words between
the two men and I find , as Moore testified , that he invited Heffernan to check with
a job steward who was nearby.
There is a conflict between the testimony of Moore and that of Heffernan, the
latter received by stipulation , as to whether Moore or Heffernan first uttered the
profanity which followed . I deem it unnecessary to resolve this because the
General Counsel concedes that the discharge of Moore which presently took place
was justified , and he does not attack it herein as such. However, it may be noted
that the profanity , which need not be repeated herein , although not the language
of the parlor , may best be characterized as language which is not rare in its frame
of reference.
At the end of this exchange, Heffernan told Moore that he was discharged.
Apparently Moore did not take Heffernan seriously because he continued to work
about an hour . At that point Heffernan spoke with Moore , reaffirmed his dismissal,
and Moore left the ship . Moore returned to the Local 6 hiring hall and on subse-
quent days continued to plug in on both boards in his customary manner. He was
duly dispatched to longshore jobs until the following events , relied upon herein by
the General Counsel , took place . Thus, on April 28, 1957 , the following letter
was sent by Gang Boss Heffernan to President Rohatch of Local 10.
Mr. ROBERT ROHATCH,
Pres., I. L. W. U. Local 10,
San Francisco , California.
DEAR SIR AND BROTHER : I had a very bad experience with a Warehousemen,
M. Moore , Book 2961 , SS# 435-12-5733 , when I asked him to show me his
longshore card . He told me he would not show it to me-only to the steward.
He used profanity and became very belligerant . ( Sic.) I told him that if he did
not want to show me his pass, he could not go to work then some more
.cursing. That is when I told him he might as well go back to the hall and
I would not let him to (sic ) to work.
Fraternally,
(Signed ) E. HEFFERNAN,
Boss Gang 95.
2 This quotation is from a previous agreement between P111A and Respondents which is
unchanged in this respect by the 1951 agreement; both contracts are in evidence The
1951 agreement 'has been changed in some respects not material herein, and it incorporates
existing practices as of September 1948. The previous contract of December 6, 1948,
Incorporated the following quotation in rule 25 of the working rules for the port of
San Francisco.
The reference to the Labor Relations Committee is to a committee set up under the
contract in various ports including San Francisco , consisting of 3 representatives selected
by the Union and 3 by the employers
31 find that Heffernan is a supervisor within the meaning of the Act. The contract
reference to him clearly endows him with such supervisory authority . It does not appear,
however, that he is an employee of a particular member company of PMA in the sense
that a "walking boss" on the waterfront is, but rather that he moves from job to job.
It would also appear that he is an agent of Respondents See, e g., N L. R. B. v United
Brotherhood of Carpenters and Joiners of America, AFL-CIO Local No. 517, 230 F. 2d
256' (C A. 1) However , for the purposes of this case it is sufficient to find, as the
General Counsel apparently contends , that he was a representative of management See
International Longshoremen's and Warehousemen's Union, Local 10 ( Pacific Maritime
Association ), 102 NLRB 907.
487926-59-vol 121-61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the salutation of "Dear Sir and Brother" and the complimentary close
of "Fraternally," one can reasonably, conclude that Heffernan was a member of
Local 10.
On April 30, President Rohatch of Local 10 sent the following letter to Dispatcher
Joe Gomes; its content reveals that it refers to the April 28 letter sent to Rohatch
by,Heffernan.
DEAR SIR AND BROTHER: The attached letter was received from one of our
gang bosses, E. Heffernan, regarding a Warehouseman, M. Moore, who was
dispatched to Gang 95 at Oakland Army Base. The letter is self explanatory.
Similar complaints have been registered -against the names listed below, and
we are asking that none of these men again be dispatched to longshore work:
E. Pierce, SS# 430-14-7426 Tom Davis, SS# 437-24-8482
M. Moore, 435-12-5733 Amos Hamilton , 431-36-4075
0. Tobin, 433-07-5066 R. Richardson, 561-36-4079
I regret having to take this action , but find it necessary . Our own members
who are guilty of similar actions are dealt with by our Grievance and Labor
Relations Committee, and we cannot tolerate disruptions of this kind.
Fraternally yours,
(Signed) ROBERT ROHATCH.
The instant record discloses that the other five persons named, members of Local
6, were in the same gang as Moore on March 29; the alleged derelictions on their
part are not disclosed.
Sometime in mid-May, according to Moore's best recollection, Dispatcher Gomes
spoke with almost all if not all of those named in the April 30 letter, including
Moore. He stated that he had- been instructed not to dispatch them for further
longshore work and proceeded to read the letter of April 30 to the group.
Moore did not acquiesce, in this decision, apparently assuming that Respondent
would not foreclose him from further longshore work in the San Francisco Bay
area. He proceeded, for approximately 2 weeks thereafter, apparently in the latter
half of May, to put his plug in the longshore board as well as the warehouse board.
On almost every day his number was reached and called for longshore work, but
when he presented himself to Dispatcher Gomes, the latter refused to give him a
dispatch slip, a sine qua non on reporting to a job and employment thereon. Gomes
informed him that the matter would have to be straightened out in San Francisco,
apparently a reference to Local 10. In addition, Gomes on several occasions told
Moore that he would not give him a dispatch slip because of the April 30 letter
from Local 10. Moore, however, was dispatched on various occasions and still is
by Local 6 for warehouse work.
Moore persisted in his attempts to obtain longshore work. As indicated, one
may not be considered for longshore work, at least a member of Local 6 cannot,
unless he purchases a monthly permit card in advance; then he is eligible for con-
sideration for selection by Local 6, as agent fof Local 10 and the International,
when such work is available. On or about June 1, Moore, as was his practice,
attempted to purchase a June permit card from Dispatcher Gomes. The latter
refused to sell him one, again assigning as a reason the letter of April 30 from
Local 10.
As a result, Moore has received no further longshore work, and it would appear
that unless he in some way makes his peace with Local 10 he will not in the future.
But for this one incident with Heffernan, described above, there is no evidence that
his employment record on the waterfront has been other than satisfactory. This
encompasses 2 years of performing longshore work under the permit cards and in
excess of 12 years of warehouse work under the jurisdiction of Local 6.4
C. Conclusions
(1) In approaching the present issue the logical starting point is the definitive
pronouncement by the Supreme Court in Radio Officers' Union v. N. L. R. B., 347
4 The General Counsel offered to prove by hearsay testimony that the other men named
in the letter of April 30 had visited the offices of Local'10, had made their peace with that
organization, and were now being dispatched to longshore work ; Respondents' objection
to the receipt of this evidence was sustained. If this be the case, however, the minor
nature of these offenses in the eyes of Respondents is apparent
INT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 947
U. S. 17. The Court, in a penetrating analysis of the limited degree of union
security permissible under the Act, stated as follows:
The policy of the Act is to insulate employees' jobs from their organiza-
tional rights. . The only limitation Congress has chosen to impose on this
right is specified in the proviso to § 8 (a ) (3) which authorizes employers to
enter into certain union security contracts, but prohibits discharge under such
contracts if membership "was not available to the employee on the same terms
and conditions generally applicable to other members".. . This legislative
history clearly indicates that Congress intended to prevent utilization of union
security agreements for any purpose other than to compel payment of union
dues and fees. . . . [A]n employer can discharge an employee for nonmem-
bership in a union if the employer has entered a union security contract valid
under the Act with such union, and if the other requirements of the proviso
are met. No other discrimination aimed at encouraging employees to join,
retain membership, or stay in good standing in a union is condoned... .
[Emphasis supplied.]
All of the foregoing is stated on the assumption that the contractual relationship
between Respondents and PMA establishing the hiring hall, registration, and pref-
erence may be equated with a legal union shop. For if this does not constitute
the limited union shop permissible under the statute, any discrimination under the
color of the hiring hall which encourages union membership is automatically vio-
lative of the Act because it constitutes the imposition of union security conditions
under circumstances not permitted under the Act, as the Court made clear.
However all of the provisions of the contract are not in evidence and, more
particularly, the General Counsel does not attack the basic hiring-hall provisions,
despite the apparent absence of a union security clause.
(2) A similar situation exists with respect to the permit system under which
Moore obtained and then was denied longshore employment. The simple fact is
that Moore or any other union member or applicant for employment was not given
consideration for such employment until he first obtained a monthly permit in
advance at a cost of $2 per month. As shown, Moore was effectively removed
from the longshore employment market when he was refused a permit card for the
month of June. Here as well, however, no attack is made upon the permit system
as such 5
(3) Coming to the issue as posed by the General Counsel it is obvious that his
position has merit This is not a situation where a union security provision has
been enforced in circumstances permitted by the Act.
Moore was refused longshore employment on the waterfront, although a union
member in good standing of Local 6, because Local 10 ordered that he not be dis-
patched. The Board has pointed out that "It is well established that an employer's
acceptance of the determination of a labor organization as to who shall be permitted
to work for it is violative of Section 8 (a) (3) of the Act, where, as here, no lawful
contractual obligation for such an action exists...." American Pipe and Steel Cor-
poration , 93 NLRB 54, 56.
It is clear that the Employer, PMA, pursuant to the hiring-hall agreement, turned
over to Respondents the selection of personnel in the instant case, thereby strengthen-
ing the position of Respondents and forcibly demonstrating to employees and would-
be employees that membership in, as well as adherence to the rule of, Respondents
was extremely desirable.
The Board has found that delegation of control of seniority by an employer to
a labor organization necessarily implies preferential treatment of union members,
despite the presence of contract language forbidding discriminatory application of
this authority. Pacific Intermountain Express Company, 107 NLRB 837. This prin-
ciple would appear to be all the more applicable in the present situation which covers
the very inception of the employer-employee relationship. In the Pacific Intermoun-
tain Express case the Board stressed the anticipated possibility of discrimination.
Here is an accomplished fact. See also N. L. R. B. v. Imparato Stevedoring Cor-
poration , 250 F. 2d 297 (C. A. 3).
B One is reminded of the recent language by the Supreme Court that "A contract may
be fair and impartial on its face yet administered in such a ,way, with the active or tacit
consent of the union, as to be flagrantly discriminatory against some members of the
bargaining unit." Conley v. Gibson, 355 U. S. 41.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Court of Appeals for the Eighth Circuit approved this policy expression of
the Board by stating , "We do not have any reason to doubt the general salutariness
and soundness of this changed view of the Board on such a contract provision, in
relation to the purposes of the Act and the protection of employees ' freedom of
choice thereunder , or any basis otherwise to regard the Board 's judgment in the
matter as being wrong." N. L. R. B. v. International Brotherhood of Teamsters, et
.al., 225 F. 2d 343 (C. A. 8). A similar result was reached by the Court of Appeals
for the Fifth Circuit in N. L. R. B. v. Dallas General Drivers Local 715, etc., 228
F. 2d 702 (C. A. 5) where the court indicated its express agreement with the inter-
pretation of the Board and the court of the seniority language considered in the
Pacific Intermountain Express decision . See Theo. Hamm Brewing Co., et al., 115
NLRB 1157.
Respondents contend that under the foregoing view , a labor organization is re-
quired to dispatch a blind man, a cripple , or physical incompetent or run afoul of
the Act . Assuming such is the case , this might well fall within the discretion of
the General Counsel in deciding whether or not to issue a complaint.
More particularly , it is significant that the contract itself envisages the dispatch
of men who have been discharged by a gang boss . For it provides in section 16 (e)
that a man whose discharge for insubordination is being taken up under the grievance
procedure shall not be refused work by another employer. This clearly contemplates
dispatch to other jobs for other members of PMA.
There is no evidence that any of these other jobs to which Moore was refused dis-
patch were under Gang Boss Heffernan . This of course is on the assumption that
Heffernan is to be considered solely the representative of a particular employer and
disregards his other capacity as an agent of Respondents . Nor is it of any avail to
Respondents that Moore was allegedly able to file a grievance under the contract
for the failure to dispatch him. The public policy of the Act may not be sub-
ordinated to private contractual agreement.
The Court of Appeals for the Ninth Circuit has found similar refusals to dispatch
under this identical hiring hall to be violative of the Act. N. L. R. B. v. International
Longshoremen 's and Warehousemen 's Union , et al., 210 F . 2d 581 , and N. L. R. B.
v. International Longshoremen's and Warehousemen's Union, 214 F. 2d 778. See
also N. L. R. B. v. Waterfront Employers of Washington, 211 F. 2d 946; N. L. R. B.
v. International Union of Operating Engineers , 243 F . 2d 134 ; and N. L. R. B. v.
Charles E. Daboll, et al., 216 F. 2d 143, cert. denied 348 U. S. 917. Other circuits
have viewed the issue similarly. N. L. R. B . v. United Brotherhood of Carpenters,
etc., Local No. 517, 230 F. 2d 256 (C. A. 1); N. L. R. B. v. International Brotherhood
of Teamsters, etc., Local 182, 228 F. 2d 83 (C. A. 2); and N. L. R. B. v. Local 369,
International Hod Carriers, etc., 240 F. 2d 539 (C. A. 3).
In a recent decison the Court of Appeals for the Ninth Circuit again drew atten-
tion to the doctrine in Radio Officers' Union, etc, v. N. L. R B., 347 U. S. 17, by
quoting from it "Since encouragement of union membership is obviously a natural
and foreseeable consequence of any employer discrimination at the request of a
union , those employers must be presumed to have intended such encouragement"
N. L. R. B. v. Olaa Sugar Company, et al., 242 F. 2d 714.
Finally, as the Court of Appeals for the Tenth Circuit has recently pointed out, in
reference to the Radio Officers decision:
The rule is clear: When the insulation of the act between the rights of em-
ployment and organization is pierced by the employer or union for the en-
forcement of union rules, valid union security provisos excepted, no direct
evidence of specific intent to encourage membership in a labor organization is
required. The natural consequence of such on-the-job discrimination is to
strengthen the union control.
Although the union may prescribe reasonable rules for membership and its
retention , the Act prohibits the enforcement of such rules by the use of
employment as a tool of discriminaiton, as here . . although the union's
action in insisting upon the discharge of claimants may have been moti-
vated by a desire to prevent certain conditions (piecework) . from
spreading throughout the industry and endangering advantages won through
organization , it cannot use methods of accomplishment which ignore the
rights of the individual employees under the Act . [ Emphasis supplied.]
N. L. R. B. v. Brotherhood of Painters, etc., 242 F. 2d 477.
INT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 949
In view of the foregoing, I find that against the background of this hiring-
hall agreement turning over the sole source of labor supply to the jointly oper-
ated hiring hall, the refusal to dispatch Moore was for a reason other than fail-
ure to pay dues or initiation fees and constituted conduct on the part of PMA
which was violative of Section 8 (a) (3) of the Act. It follows, therefore, that
Respondents have caused an employer to discriminate against an employee in
violation of that section of the Act and have thereby engaged in conduct viola-
tive of Section 8 (b) (2); I so find. I further find that by the foregoing conduct
Respondents have restrained and coerced employees in the exercise of the rights
guaranteed by Section 7 of the Act and that as a result they have engaged in
conduct violative of Section 8 (b) (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents, set forth in section III, above, occurring in
connection with the operations of the Employers described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices, I shall
recommend that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It will be recommended that Respondents cease and desist from causing or
attempting to cause PMA and its members to deny employment to any employee or
prospective employee, except to the extent permitted under the proviso to Section
8 (a) (3) of the Act.
I shall further recommend that Respondents notify the Employers, the San
Francisco Port Labor Relations Committee, their sister local, Local 6, and all
dispatchers in the San Francisco hiring hall in writing, and furnish copies to Milton
Moore, that they withdraw all objections to the dispatch of Moore to longshore work
and that Moore is to be dispatched for longshore work forthwith and in the usual
course.
I shall also recommend that Respondents jointly and severally make Moore whole
for any loss of pay suffered by reason of Respondents' unlawful conduct. Said loss
of pay shall be based upon earnings which Moore normally would have earned
from the date of the first refusal to dispatch him, approximately mid-May according
to Moore's uncontroverted testimony, to a date 5 days after the date on which
Respondents serve the above-specified notices on the indicated parties and shall be
computed in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289. See N. L. R. B. v. Seven-Up Bottling Company of Miami, Inc.,
344 U. S. 344.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Pacific Maritime Association (PMA) and its member companies are engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. International Longshoremen's and Warehousemen's Union, Local No. 10,
Independent, and International Longshoremen's and Warehousemen's Union, Inde-
pendent, are labor organizations within the meaning of Section 2 (5) of the Act.
3. By causing an employer to discriminate against Milton Moore in violation of
Section 8 (a) (3) of the Act, Respondent Unions have engaged in unfair labor
practices within the meaning of Section 8 (b) (2) of the Act.
4. By the foregoing conduct, Respondent Unions have restrained and coerced
employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby
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 com-
merce within-the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]