Int'l Longshoremen's Association Local 1408, Etc.

National Labor Relations Board - Board Decisions

Dec 28, 1961

134 N.L.R.B. 1669 (N.L.R.B. 1961)

INT'L LONGSHOREMEN'S ASSOCIATION LOCAL 1408 , ETC. 1669
International Longshoremen 's Association Local 1408 [ Caldwell
Shipping Company; East Coast Stevedoring Company; Kauf-
mann Shipping Company; McGiffin & Company Inc.; South-
ern Shipping Company; William Spencer & Sons, Inc.; Stevens
Shipping Company; Strachan Shipping Company ; and Wilson
& Toomer Fertilizer Company ] and Willie Dunlap . Case No.
12-CB-438. December 28, 1961
DECISION AND ORDER
On July 10, 1961, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate
Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Rodgers and Fanning].
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, and the entire record in this proceed-
ing, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner to the extent they are consistent with' our
decision herein.
The Trial Examiner found that the Respondent violated Section
8 (b) (2) of the Act by maintaining a practice with the Companies
whereby membership in or clearance by Respondent was made a condi-
tion of employment, and which gave preference'to members in good
standing, pursuant to which Respondent caused Kaufmann Shipping
Company to terminate the employment of Fred D. Gooden because he
failed to possess a union card. To support his finding that such a
practice existed, the Trial Examiner found that Kaufmann's "header"
acted in a dual capacity as agent for both Kaufmann and Respondent.
While the record supplies the Trial Examiner's conclusion that the
header was an agent of Kaufmann, we are not persuaded that the
General Counsel has established by a preponderance of the evidence
that the header was acting in a similar capacity for Respondent.
Accordingly, we do not adopt the Trial Examiner's finding that
134 NLRB No. 163.
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gooden was denied employment because of an unlawful practice be-
tween Respondent and the Companies.
However, the record amply shows that Gooden was removed from
his job with Kaufmann because he did not have in his possession a
union card evidencing his good standing in Respondent, and that his
removal was caused by Respondent's business agent, Kennedy, for
this reason. We therefore find that Respondent violated Section
8 (b) (2) by this conduct.
ORDER
Upon the entire record in the 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 Association, Local 1408, its officers, representatives,
agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Causing or attempting to cause Caldwell Shipping Company;
East Coast Stevedoring Company; Kaufmann Shipping Company;
McGiffin & Company, Inc.; Southern Shipping Company; William
Spencer & Sons, Inc.; Stevens Shipping Company; Strachan Ship-
,ping Company; and Wilson & Toomer Fertilizer Company, their
officers, agents, successors, or assigns, to discriminate against their
employees in violation of Section 8(a) (3) of the Act.'
(b) In any other manner restraining or coercing employees in the
exercise of rights guaranteed in Section 7 of the Act.
2., Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make Fred D. Gooden whole for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him in
the manner set forth in the section of the Intermediate Report en-
titled "The Remedy."
' Because the record shows that . Discriminatee Gooden performs stevedoring work for
employers , other - than, Kaufmann Shipping Company, who are named in the complaint,
and because the Board has, previously found ( 119 NLRB 645 ) that Respondent ' engaged
in acts similar to those found herein, Members Rodgers and Fanning have ordered the
Respondent to cease and desist from causing or attempting to cause those employers to
discriminate against employees in violation of Section 8(a) (3) of the Act. Chairman
McCulloch would limit the scope of 'this remedial provision to Kaufmann Shipping Com-
pany, the employer for whom Gooden worked at the time of the discrimination against him.
He notes, first of all, that the Board as rejected the Trial Examiner 's finding that Gooden's
discharge was pursuant to an unlawful union practice. The allegation of such a practice
apparently formed the only basis for the inclusion of other named companies as parties
interested in this proceeding , and it was the finding of such a practice that enabled the
Trial Examiner to include them in the provisions of his recommended order. As the Board
has found no such practice and because , to the contrary , the violation involved in this
proceeding appears to be of a minor and isolated nature, without specific evidence of animus
either against this individual or generally against employees not holding union cards, the
chairman would not thus broaden the order to include employers not here directly involved.
Combustion Engineering, Inc., 130 NLRB 184
INT'L LONGSHOREMEN'S ASSOCIATION LOCAL 1408, ETC. 1671
(b) Preserve and, upon request, make available to the Board or
its agents all records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its office and meeting hall, copies of the notice attached
hereto marked "Appendix." 2 Copies of the notice, to be furnished
by the Regional Director for the Twelfth Region, shall, after being
duly signed by the Union's representative, be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to members are customarily posted. 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 Twelfth Region signed
copies of the notice attached hereto marked "Appendix," for posting
by Caldwell Shipping Company; East Coast Stevedoring Company;
Kaufmann Shipping Company; McGiffin & Company, Inc; Southern
Shipping Company; William Spencer & Sons, Inc.; Stevens Shipping
Company; Strachan Shipping Company; and Wilson & Toomer Fer-
tilizer Company, if willing. Copies of said notice, to be furnished
by the Regional Director for the Twelfth Region, shall, after being
duly signed by the Respondent's representative, be forthwith returned
to said Regional Director for such posting.
(e) Notify the Regional Director for the Twelfth Region, in writ-
ing," within 10 days from the date of this Order, what steps it has
taken to comply herewith.
2 In the event that this Order in 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 a United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLoYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify you that :
WE WILL NOT cause or attempt to cause Caldwell Shipping
Company; East Coast Stevedoring Company; Kaufmann Ship-
ping Company; McGiffin & Company, Inc.; Southern Shipping
Company; William Spencer & Sons, Inc.; Stevens Shipping Com-
pany; Strachan Shipping Company; and Wilson & Toomer Fer-
tilizer Company to discriminate against employees in violation
of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
in the exercise of rights guaranteed in Section 7 of the Act.-
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make Fred D. Gooden whole for the loss of pay suf-
fered by him as the result of the discrimination practiced against
him.
INTERNATIONAL LONGSHOREMEN'S
AssocIATION, LOCAL 1408,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein ,. as modified at the hearing , alleges that the Union has vio-
lated Section 8(b) (1) (A ) and (2 ) of the National Labor Relations Act, as amended,
73 Stat . 519, by maintaining since August 31, 1960 , a practice whereby the above-
named Companies delegate to headers the authority to hire , discharge , and responsibly
direct the Companies ' stevedoring employees , the headers being agents of the Com-
panies and of the Union within the meaning of the Act and securing said employees
through the Union 's hiring hall exclusively, and the practice requiring membership
in or clearance by the Union as a condition of employment and that the headers give
preference in order , duration , and tenure of employment , layoff , and recall to union
members in good standing ; and on or about September 8, 1960 , by Business Agent
Kennedy and header Parrish , causing and attempting to cause Kaufmann to terminate
the employment of employee Gooden because he did not have in his possession a
card evidencing good -standing membership in the Union , and caused Kaufmann to
replace him with an employee who did have such a card in his possession. The
answer , as modified at the hearing , denies the allegations of unfair labor practices.
A hearing was held before Lloyd Buchanan, the duly designated Trial Examiner,
at Jacksonville , Florida, on May 8 and 9 , 1961 . At the close of the hearing, the
General Counsel was heard in oral argument.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following: _
FINDINGS OF FACT ( WITH REASON THEREFOR) ,
1. THE COMPANIES ' BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was stipulated and I find that each of the Companies is engaged in the trans-
portation of goods and materials as stevedoring and/or shipping agent in Jacksonville,
Florida; that during .the year immediately preceding issuance of the complaint herein
each of them performed services valued at more than $50 ,000 for customers engaged
in the transportation of goods and materials to and from States of the United States
other than the State of Florida , and in foreign commerce to and from foreign
countries ; and that each of the Companies is engaged in commerce within the mean-
ing of the Act.
It was admitted and I find that the Union is a labor organization within the mean-
ing of the Act.
II. THE UNFAIR LABOR PRACTICES
Stevedoring work of loading and unloading vessels is done by longshoremen, who
must have a measure of skill to perform the various tasks. Such skill is apparently
acquired through experience on the job . While the work would not be classified as
highly skilled and may not demand long training , the combination of know -how and
some brawn required suggests the desirability if not the necessity of employing ex-
perienced longshoremen . Without a formal training period , a man with little or no
experience can presumably be put to work with experienced men and thus acquire
experience and skill on the job.
A. Headers as agents of the Union
The testimony, some of it from reluctant witnesses and at times difficult to adduce,
shows that the Companies' hiring procedure is regular although employment is
INT'L LONGSHOREMEN'S ASSOCIATION LOCAL 1408, ETC. 1673
sporadic depending on the volume of work.- A company representative advises the
Union, usually the day before, that it will need certain headers with their gangs.
(Like the .members of their gangs, the headers are employed by various companies
from time to time, -depending on work opportunities. When a header requested is
working for another company, another header is called for and used.) These re-
quirements are then posted at the several locations where the men will shapeup for
work the next morning, the headers' names being listed. In the morning each header
selects his gang, these being his regular group plus any others needed to take the place
of unavailable regulars or to enlarge the gang as needed. Pay commences, not at
the shapeup, but when the gang starts to work.
Once at the job, the header collects some form of identification from each member
of his gang, and turns it over to the company paymaster. This identification for pay-
roll purposes may be a union card, but it is quite different from the union card check
made by the header, noted infra.
While there are slight differences in the procedures followed by the various com-
panies, it is clear from the evidence that the headers are authorized to and do select
the members of their gangs. As they select some, they thereby reject others seeking
work; further, reference will be made to instances of rejection of men after they had
been selected. Nor is it strange or .unusual that the headers act for the Companies
and at the same time, as we shall see, for the Union.'
Reference to the constitution of the Local's International was permitted on the
question of agency of the headers. The requirements of the constitution indicate
that as members of the Local the headers are subject to its provisions, and that they
act on behalf of and as agents of the Local when they select their gang for employ-
ment. The requirements indicate agency; the practice followed pursuant to require-
ment constitutes the violation alleged, as we shall see. Whatever the constitution
may indicate as "background" or as :possible assistance "to arrive at an understanding
of the Union's operation of the hiring hall," the testimony received shows clearly
and directly that headers are agents of the Union.
Thus Williams, president of the Union, testified that all longshoremen, whether
members or not, pay to the headers a 50-cent shapeup fee each day in which they
work 4 or more hours. The headers turn this money over to the Union. They
operate under a threat of discipline for violation of the provisions of the Inter-
national constitution , including that which provides for employment of members
of the Union. This is in addition to testimony concerning the former president's
assurance that charges theretofore filed against a header for carrying nonunionmen
in preference to unionmen would be looked into by a grievance committee to be
formed for that purpose. The promise of such action was made in the summer or
fall of 1960, within the statutory period herein.
With the limitation, which we shall note, to the practice followed rather than the
requirements of any agreement or constitution, and the allegation that the headers
were required thereby to give preference to union members in good standing, our
concern is with the practice followed, not with whether the headers "were required"
by a contract or constitution so to act. But the evidence or requirements imposed on
headers, as distinguished from what they do, is relevant and was received in con-
nection with proof of their agency. Whatever the headers' status vis-a-vis the Com-
panies, they acted as agents of the Union and their acts were accepted and adopted
by it.
B. The unlawful general practice
"The existence of discrimination may at times be inferred by the Board... " 2
The emphasis throughout the Teamsters decision is on proof of actual discrimination;
where an agreement is considered, it must be determined whether "it was in fact
used unlawfully." The General Counsel here apparently recognized this as he with-
drew his allegation concerning an unlawful agreement and sought to show discrimi-
nation in practice generally and against Gooden specifically.
It is not here claimed that a practice whereby headers, who are union members,
exercise the power of selecting men for employment is per se discriminatory 3 But
it is claimed that ,the practice followed by the headers was. It has already been
seen that headers are under a threat of discipline by the Union when they select
' United Brotherhood of Carpenters and Joiners of America , Local No. 517 (Gil Wyner
Construction Company), 112 NLRB 714, 716, 721; United States Steel Corporation (Ameri-
can Bridge Division), 1.22 NLRB 1324, 1325.
2 Local 3.57 , International Brotherhood of Teamsters etc. v. N.L.R.B. ( Los Angeles -Seattle
Motor Express), 365 U.S. 667.
3 N.L.R. B. v. News Syndicate Company, Inc., at al., 365 U.S. 695.
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their crews at the shapeup . This is supported by the testimony that Corker, its
former president , declared at a union meeting in September 1960 , that any header
caught hiring nonumonmen over a card man would be fired . To justify this, the
Respondent brought out that inexperienced men may run into difficulties and
dangers. But while longshoremen , as we have seen , must have a measure of skill
and experience to perform their various duties, unionmen , especially if new are not
all experienced although . they have some experience ; and while some nonunion-
men have no experience, others do have it . Clearly experience is not the determin-
ing factor . This is further indicated by the action taken against Gooden , infra; , his
experience and ability on the job did not vary with his immediate possession of his
union card, and they were not diminished because he had left his card at home.
We are not to equate union membership with necessary experience, lack of mem ,
bership with inexperience . Preference for experienced men is lawful; preference
for union members is not when it is expressed as a threat by the Union's president and
effectuated by the headers in their hiring practice.
Corker's statement is not alleged as a violation . The issue here being that of un-
lawful practice , that statement may be considered only to explain any such practice
found. The issue has been and is, regardless of what Corker said , whether there
was actual discrimination based on union membership and therefore unlawful.
But here we need go back only to the evidence noted of threat of discipline of
headers who hire nonunionmen over unionmen , and the further evidence that
headers consider the union , rules when they put men to work, require that current
union cards be exhibited at the shapeup ,,and give preference in employment to
holders of current or paid-up work cards. Providing a convenient means of check-
ing on the paid-up status of members before they are selected, the names of those
in arrears are posted on the very same blackboards which list the jobs and gangs to
be filled. - -
The practice of hiring -men who have worked regularly in the , header's gang is
quite understandable . Our concern is with the preference and discrimination related
to union membership in good standing , not where they are based on such valid
elements as sobriety and experience . Evidence was,received that on one occasion
early in November 1960 , a Wilson & Toomer deck walker (evidently that Com-
pany's counterpart of a header ) had brought to the job two men more than were
needed, and that he let one go with the remark, "This man here is a nonunion man; 4
we'll let him go .". Although it is lawful to let an extra man go, his selection be-
cause he does not belong to the Union is violative.
The header knows that the men he puts to work have paid. their union dues,
or he checks to see their cards. Sometimes the Union's business agent checks on the
job to see whether the men working have paid-up cards. No valid explanation was
offered for such requests to show cards.
Reference was made at the hearing to contracts between the Companies and the
Union. While the General Counsel declared that he was relying, not on the con-
tracts, but on the practice followed , he maintained that the contracts are a detail
of the illegal hiring procedure and shed light on the practice . The discriminatory
practice is clear: whatever "background" the contracts provide is quite unnecessary.
C. Gooden
One Wednesday in September 1960, Goolden , a member of the Union, was at
Kaufmann 's ready to work after being selected at the shapeup , when someone
complained to Kennedy , the Union 's business agent, who was there at the time,
that Gooden did not-have his union card with him. Kennedy told Gooden that he
was supposed to have his union card with him at all times, and did not permit him
to work that day. At Kennedy 's direction ,. the header retrieved Gooden's identifica-
tion from Kaufmann 's paymaster , and replaced it with another man's card. This
action by the Union was discriminatory and violative as alleged. (Gooden has since
been employed by Kaufmann.)
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth in section IT, above, occurring in connection
with, the operations of the Companies described in section 1, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States, ' and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
4 Not "an unusual man" ; the transcript is hereby corrected
MERAMEC MINING COMPANY 1675
IV. THE REMEDY
Having found that the Union has engaged in and is engaging in certain unfair labor
practices affecting commerce, I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Union, by maintaining a practice which requires mem-
bership in or clearance by the Union as a condition of employment, and which gives
preference in employment to union members in good standing, restrained and
coerced employees and caused employees to discriminate in violation of Section
8(b) (1) (A) and (2) of the Act. It has further been found that, by causing Kauf-
mann to terminate Gooden's employment for 1 day because he did not have his
union card in his possession, the Union similary violated said sections of the Act.
I shall therefore recommend that the Union cease and desist therefrom. I shall
further recommend that the Union make Gooden whole for loss of 1 day's pay less
the shapeup fee for that day.
The "generalized scheme" or practice indicated and the "proclivity for unlawful
conduct (which) has been shown" warrant an order covering the Union's practice
vis-a-vis any other employer.5
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Longshoremen's Association, Local 1408, is a labor organization
within the meaning of Section 2(5) of the Act.
2. By causing the Companies to discriminate in regard to hire and tenure of
employment and terms and conditions of employment 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.
3. By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(A) of the Act.
4. 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.]
5 Communications Workers of America, AFL-CIO, et al. ( Ohio Consolidated Tel. Co.) v.
N.L.R.B., 362 U.S. 479. Cf. United Contractors Council, et at., d/b /a Bishop Plumbing and
Elect. Co., 126 NLRB 1142; N.L.R.B. v. Revere Metal Art Co., Inc., et al ., 280 F. 2d 96
(C.A. 2). See also McComb, Wage and Hour Administrator v. Jacksonville Paper Comr
pany, 336 U .S. 187, 192.
Meramec Mining Company and United Steelworkers of America,
AFL-CIO, Petitioner. Case No. 14-RC-3983. December 08, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed, a hearing was held before Thomas W.
Seeler, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hearby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Rodgers and Brown].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.'
' It was stipulated by the parties that the Employer has an indirect inflow of goods,
purchased from sources within the State, which goods originated outside the State, in excess
134 NLRB No. 167.