Int'l Longshoremen's & Warehousemen's Union

National Labor Relations Board - Board Decisions

Nov 18, 1965

155 N.L.R.B. 1042 (N.L.R.B. 1965)

1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the final analysis, it would seem that here, as in other areas of management-
labor relations, the "ultimate problem is the balancing of the conflicting legitimate
interests" (N.L.R.B. v. Truck Drivers Local Union No. 449, International Brother-
hood of Teamsters, etc. (Buffalo Linen Supply Co.), 353 U.S. 87, 96). It is unneces-
sary here to decide whether interrogation is unlawfully inhibitory or coercive in all
cases where an employer denies his employees the presence, advice, and counsel of
their bargaining representative. Confining myself to the question in the factual con-
text here-where the interviews involved employees facing no disciplinary action,
where the interrogation pertained to an unprotected activity, and where it was
accompanied by safeguards immunizing even interrogation concerning protected
activity-I am persuaded that the employer's legitimate interest in investigating the
particular misconduct on balance overrides the employees' interest in union repre-
sentation during the interrogation. In short, I conclude that the questioning here
did not lose its protected character by Respondent's denial of the employees' request
for union representation in the investigation of the illegal walkout. This is not to
say that the result would necessarily be the same if the walkout were protected and,
even if not protected, the employees had been threatened with or suffered reprisals
for refusal to submit to interrogation or signing statements.
Accordingly, I conclude that in the circumstances of this case Respondent's ques-
tioning of employees in order to ascertain the extent of implication in, and respon-
sibility for, the illegal walkout, by other employees without affording the employees
union representation, did not constitute restraint and coercion in violation of Sec-
tion 8(a) (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and the entire record in this case, it is
recommended that the complaint be dismissed.
International Longshoremen 's & Warehousemen 's Union, Local
No. 12 and Donald D . Wilson , Lee E. Thomas , and Bernard J.
Warnken. Case No. 36-CB-331. November 18, 1965
DECISION AND ORDER
On August 13, 1965, Trial Examiner Eugene K. Kennedy issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision, and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
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 Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as modified herein.
155 NLRB No. 89.
I'NT'L LONGSHOREMEN'S & WW'AR.EHOUSE-AIE\'S ITNIO \ 1043
ORDER
Pursuant to Section 10(c) of the. National Labor Relations Act, as
amended, the 1 ational Labor Relations Board hereby- adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herei_iafter. and orders that the Respondent, International Long-
shoremen's Union, Local No. 12, North Bend-Coos Bay, Oregon, its
officers, agents, and representatives, shall take the. action set forth in
the Trial Examiner's Recommended Order, as modified below :
1. Add the following as paragraph B (3) to the Trial Examiner's
Recommended Order, the present paragraph B (3) and those subse-
quent thereto being consecutively renumbered :
"(3) -Notify the above-named individuals if presently serving in
the Armed Forces of the United States of their right to full use of
this hiring hall without discrimination in connection with their dis-
patch to employment, upon application in accordance with the Selec-
tive :Service. Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces."
2. Add the following as the second indented paragraph in the
"Appendix."
IV; E WILL NOT in any other like manner interfere with, restrain,
or coerce Donald Wilson, Lee Thomas, and Bernard Warnken in
the exercise of their rights guaranteed by Section 7 of the Act,
except to the extent that such right may be affected by an agree-
ment made in accordance with the provisions of Section 8 (a) (3)
of the -Act requiring membership in a union as a condition of
employment.
3. Add the following as the fourth indented paragraph in the
"Appendix."
'WE -"aLL notify the Joint Port Labor Relations Committee of
North Bend-Coos Bay and the dispatchers of the hiring hall in
that area, and furnish copies of such notices to Wilson, W€ arnken,
and Thomas, that Wilson, Warnken, and Thomas will have full
use of the hiring hall without discrimination in connection with
their dispatch to employment.
4. Add the following immediately below the signature line appear-
ing at the bottom of the '-Appendix-,,
N oTE-117e. will notify the, above-named individuals if presently
serving in the. Armed Forces of the United States of their right
to full use of the hiring hall without discrimination in connection
with their dispatch to employment, upon application in accord-
ance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge
from the Armed Forces.
212-809-66-'vol. 155-67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The issues presented are whether Respondent Union unlawfully interfered with
and discriminated with respect to the employment rights of the Charging Parties,
Donald Wilson, Lee Thomas, and Bernard J. Warrken.1 Also in issue is the ques-
tion of whether the Pacific Maritime Association (herein called PMA) is engaged in
commerce and whether the Respondent Union was responsible for discrimination
and interference if it, in fact, did occur.
Upon consideration of the entire record, including my observation of the demeanor
of the witnesses and consideration of the briefs submitted by the General Counsel
and Respondent, I make the following:
FINDINGS OF FACT
1. THE JURISDICTION OF THE BOARD AND PACIFIC MARITIME ASSOCIATION
Pacific Maritime Association is an employer association that includes among its
functions collective bargaining cn behalf of its members with International Long-
sh.oremen's & Warehousemen's Union (herein called ILWU).
Its members include the majority of the steamship and stevedoring companies
operating or the Pacific coast of the United States.
Its member companies annually ship products or commodities valued in excess of
$50,000 directlyfrom one State to another or directly from one State to a foreign
country. In Pacific Maritime Association, 140 NLRB 9, the Board asserted juris-
diction over PMA. Accordingly, it is found that PMA is now, and at all times
material has been, an employer engaged in commerce and in a business affecting
commerce within the meaning of the National Labor Relations Act, as amended,
herein called the Act.
The events here involve PMA as the employer. In addition to collective bargain-
ing, its functions include the keeping and maintenance of payroll and related records
for the- employees of its member companies . As specified by contract, it has an
equal number of employer-representatives along with the same number of ILWU
representatives on Joint Port Labor Relations Committees which operate the hiring
halls in various ports.
II. THE LABOR ORGANIZATION INVOLVED
International Longshoremen's & Warehousemen's .Union, Local No. 12 ( herein
called Respondent or Local 12) is a labor organization Within the meaning of the
Act. -
III. THE UNFAIR LABOR PRACTICES -
A. The issues
The complaint alleges Respondentviolated Section 8(b)(1)(A) and 8(b)(2)2 of
the Act by unfairly treating the Charging Parties in connection with -the method
used to dispatch them to jobs and also by excluding them from the hiring hall. At
issue is whether interference and discrimination occurred and, if it did occur,
whether Respondent is responsible. -
1 The complaint in this matter was issued January 18, 1965 , on a charge filed October 20,
1964, and an amended charge filed December 21, 1964. [The hearing was held before Trial
Examiner Eugene K. Kennedy.]
Section 8(b) of the Act states:
It shall be an unfair labor practice for a labor organization or its agents-
(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in
Section 7: Provided, That this paragraph shall not impair the right of a labor orga-
nization to prescribe its own rules with respect to the acquisition or retention of
membership therein . . .
(2) to cause or attempt to cause an employer to discriminate against an employee
in violation of subsection (a) (3) or to discriminate against an employee with respect
to whom membership in such organization has been denied or terminated on some
ground other than his failure to tender the periodic dues and the initiation fees uni-
formly required as a condition of acquiring or retaining membership.
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 1045
B. Background
The events under consideration center around the North Bend-Coos Bay, Oregon,
longshoremen's hiring hall. The hiring halls offer the only means of obtaining
work as a longshoremen or the Pacific coast.3 Longshoremen not on the registered
list are characterized as casuals. There were 400 casuals who received employment
in the North Bend-Coos Bay area in 1964 by being dispatched from the Local 12
hiring hall .4
Under the terms of the Pacific Coast Longshore Agreement to which the PMA
and the IL NNIU are signatories, the Local 12 hiring hall is operated by the joint Port
Labor Relations Committee. This committee is composed of three members desig-
nated by the I1_-%U and three members designated by PMA. The expense of main-
taining the hail is borne equally by Local 12 and PMMA. Casual workers who
receive employment are assessed for the maintenance of the hail. Registered long-
shoremen receive preference in hiring. It was the practice for casual workers seek-
ing employment to telephone for a recorded tape message which world indicate
whether there were any prospects for employment of casuals on that day. Employ-
ment is parceled out to the casuals by a dispatcher or assistant dispatched. The dis-
patchers are elected on the same union ballot as the other union officers and must
meet the standards set by the Joint Port Labor Relations Committee.
Dispatcher Oldland maintained a list of 13 preferred casuals to whom he gave
preference in employment in the Local 12 hiring hail. The dispatcher in the Local 12
hiring hall has complete discretion as to which casual is selected for employment.
As will be indicated, methods of hiring used in the Local 12 hiring hall were the
cause of the dispute involved herein.
The objections of the Charging Parties; Donald Wilson, Bernard W arnken, and.
Lee Thomas, to the hiring procedures were, in the main, directed to the conduct of
Joe Jakovac, the assistant dispatcher, who acted when the chief dispatcher was absent-
Jakovac was acting dispatcher in late September and the first half of October 1964.
C. The events
As previously indicated, casual longshoremen Donald Wilson, Bernard Warnken,
and Lee Thomas, herein referred to as the Charging Parties, initiated this proceeding.
Wilson testified, "We didn't like the method of hiring the casuals. They were being
discriminated against and we went to the -president of the union on August 18."
On this date (August 18 , 1964), Wilson complained to Armstrong, president of
Local 12, and informed him of an intention to picket unless the method of hiring
casuals was changed. Wilson was complaining about preference given to sons of
longshoremen . Armstrong did not offer any solution, but replied "We would cross
that bridge when we got to it," referring to Wilson 's stated intention to picket the
hiring hall. -
On August 19, 1964, Donald Wilson, Bernard Warnken, and Warnken's brother
picketed the hiring hall for about 15 minutes and stopped picketing when Armstrong,
Respondent 's president , informed them he would arrange a meeting on August 21,
1964, at 7:30 p.m. Although the Charging Parties went to the meeting place at
7:30 p.m., no meeting was held on August 21, 1964, which they attended.
3 Section 8 of the 1961-66 Pacific Coast Longshore Agreement provides:
8.1 Dispatching halls.
8.11 The hiring and dispatching of all longshoremen shall be through halls main-
tained and operated jointly by the international Longshoremen 's and Warehousemen's
Union and the Pacific Maritime Association in accordance with the provisions of
Section 17. There shall be one central dispatching hall in each of the ports with such
branch halls as shall be mutually agreed upon. All expense of the dispatching halls
shall be borne one-half by the local union and one-half by the Employers.
8.12 Any longshoreman who is not a member of the Union shall be permitted to
use the dispatching hall only if he pays his pro rata share of the expenses related to
the dispatching hall , the Labor Relations Committee . etc. The amount of these pay-
ments and the manner of paying them shall be fixed by the Joint Port Labor Relations
Committees.
8.14 Longshoremen not on the registered list shall not be dispatched from the dis-
patching hall or employed by any employer while there is any man on the registered
list qualified , ready and willing to do the work.
A This characterization is one of convenience and is not intended to suggest that the
PMA is without responsibility for the operations of the hall.
I0 l6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Charging Parties took no further action until August 29, 1964, when Wilson
and Bernard War-ken contacted Erik Sukonen, a Ply£A member of the Joint Port
Labor Relations Committee. As a result of the conversation with Sukonen and a
telephone call to W. B. Ferguson, another PMA member of the Joint Port Labor
Relations Committee, the Charging Parties filed a written grievance with the Joint
Port Labor Relations Committee. A meeting of the Joint Port Labor Relations
Committee was held on September 21, 1964, at North Bend with the Charging
Parties in attendance. Their grievance was taken under consideration and the
Charging Parties informed the committee they would abide by any decision of the
committee.
On October 5, 6, and 7, 1964, every casual working in the hall was hired except
the three Charging Parties. Casual workers were recruited from the Air Force and
from taverns, but the Charging Parties were not dispatched,5 although present in the
ball. -
On October 8, 1964, Thomas and Bernard Warnken were in the hiring hall shortly
after 8 a.m. After being in this hall about 5 minutes, Joe Jakovac, the assistant
dispatcher, came out of his dispatch office and walked up to where Warnken was
standing talking to another casual and asked him where Thomas was. Thomas then
walked up and Jakovac said, "I am going to have to ask you fellows to leave this
hail. This is a private hall and we've got the right to ask anyone to leave here that
we don't want."
Thomas and Warnken then started to leave and rnet Wilson coming in the side
door. Wilson joined them and, after riding around town, Thomas- went back in the
hall to talk to Jakovac who said, according to the credited testimony of T somas,
"'What do you want?' and I said 'I would like to talk to you for a minute' and I said
`Just who give you the authority to tell us to stay out of this hall?' He said, `Me.'
I said, 'You, yourself?' and he said, `Yes, nobody else-me: `Now,' he said, ` get out
and stay out. I'm not going to argue with you."' [Emphasis supplied.]
This language of Jakovac, taken along with the whole context of events, demon-
strates that the eviction of the Charging Parties from the hiring hall was not for just
1 day as claimed by Respondent. During the subsequent picketing from October 14
to 20, 1964, none of Respondent's officials advised the Charging Parties that they
were barred from the hiring hall for 1 day only.
When Wilson met Thomas and Warnken when they were first asked to leave by
Jakovac and was told that they were kicked out, he, at that time, assumed he was
included in the eviction. That his assumption was correct is supported by the absence
of any advice to the contrary from representatives of Respondent while he was
picketing the hiring hall subsequent to this occasion. The finding that he was included
in the ban is also supported by the testimony of Jakovac in describing the events
leading up to the eviction of the- Charging Parties.
`Well, I couldn't really tell what was going on , that .morning but I knew that
there had been a period of time there for several days when these people had
been walking around the hall and they were clustered up in bunches and were
talking to other people and trying to start a strike against the hiring procedure;
and they were pretty active for a period of time and they were in a sense disrupt-
ing the people there and the men at all times; and I know that they had, at times,
told people to rush up to that window. It reached a boiling point, you might
say on that one particular morning.
Jakovac further testified: -
This happened before, but when they were out there the day previously, and
this includes Mr. Wilson was out there-at this particular time, they were
motioning people up to the window. They done this for two of three days and
they were out there just talking to all of these people and trying to get them
stirred up and "Go on up;" they said, "There's plenty of work-.,, [Emphasis
supplied.]
5 Dispatcher Oldland testified that he never deliberately did not dispatch a an because
he was sore at him. This does not constitute an uneouivocal denial of Wilson's testimony
of the events of October 5, 6, and 7, as Oldland's testimony establishes that Oldiand was
away on vacation from the latter part of September until October 13, 1964. Jakovac did
not deny the credited testimony of Wilson that on October 5. 6, or 7, 1964, the Charging
Parties were not dispatched , although it was necessary for the dispatcher to recruit men
not present in the hiring hall where the Charging Parties- were waiting to be dispatched.
Jakovac was the dispatcher on October 5, 6, and T.
INTEL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 1047
With reference to what Jakovac described as the actions of the Charging Parties,
prior to October 8, 1964, he also testified: "I figured that they were a disturbing
influence in the hall. That's what I figured."
It is noted here that, although in some degree intertwined with the issues presented,
in a strict sense the merits of the grievance against the Respondent is not in issue
although the record does indicate a basis for the complaints of the Charging Parties.
What is of concern here is whether, after the Charging Parties engaged in a con-
certed protest against Respondent's method of operating the hiring hall, they wine
discriminated against in the course of being selected for employment.
After the expulsion from the hiring hall, the Charging Parties advised Ferguson,
PMA member of the Joint Port Labor Relations Committee, that they had been
kicked out of the hiring hall. Ferguson replied, requesting they take no further
action until they had heard from him on October 13, 1964. Not having heard from
him by that date, the Charging Parties resumed picketing the hiring hall on Octo-
ber 14, 1964. The picketing continued until the unfair labor practice charge was
filed on October 20, 1964.
In course of investigation of the charge, a representative of the National Labor
Relations Board had occasion to talk with Respondent's officials. It was their claim
at that time that the Charging Parties had been expelled from the hiring hall for
1 day only. This is belied by the fact that Jakovac told Thomas to "stay out" and also
by the failure of any of Respondent's officials to inform the Charging Parties dur-
ing the course of the picketing of the hiring hall that the ban was for 1 day only.
In any event, the Board representative, on or about November 13, 1964, advised
the Charging Parties to return to the hiring hall and attempt to obtain dispatch to
employment. This they did without success. The record establishes that Thomas
had 16 hours' work for the period ending September 21, and 8 hours for the period
ending September 28. 1964, and none thereafter. Bernard Warnken and Wilson had
8 hours for the period ending September 21, 1964, and none thereafter. Wilson
continued reporting to the hiring hall for about 50 days without securing employ-
ment. He then obtained other employment on February 16, 1965.
Warnken regularly went to the hiring hall between approximately November 13,
1964, and March 23, 1965, the date of the hearing in this matter, for about 90 days
without being dispatched.
Thomas also regularly went to the hiring hall between November 13, and Decem-
ber 4 or 5, 1964, without being dispatched.
There was introduced in the record the earnings records of the 14 highest earn-
ings of the casuals, aside from the Charging Parties, for 1964. The earnings of the
Charging Parties were also offered for comparison. In the first three quarters of
1964, the average earnings of the 14 highest earning casuals, aside from the Charging
Parties, was $3,344. During the same period, Wilson earned $2,870, Chambers
earned $2,526, and Thomas earned $2,033. Wilson earned more than 2 of the
employees on the casual preferred list who were included among the 14 highest
earning casuals, and also more than 2 others of the 14 highest earning casuals. The
average earnings of the 14 highest earning casuals for the fourth quarter of 1964
was $1,194, while the Charging Parties' earnings were zero. Thus, it appears that
the earnings of the Charging Parties were comparable to the highest earnings of the
casuals for the first three quarters of 1964, and were nothing for the fourth quarter
of 1964.6
Respondent claims that the fourth quarter of 1964 was a poor quarter for earn-
ings. First, it is noted that Dispatcher Oldland testified it was a poor quarter relative
to other fourth quarters of previous years and not as compared to the other three
quarters of 1964. The sense of his testimony is that because of certain factors,
including the registered longshoremen going on hunting trips, there is usually a large
amount of work for casuals in the fourth quarter.?
O Respondent claims that the Charging Parties were unavailable for employment from
October 8, 1964, when they were barred from the hiring hall until November 13, 1964,
when they returned at the suggestion of the Board representative. This claim is rejected.
After telling the Charging Parties to get out and stay out, it was the responsibility of
Respondent to notify the Charging Parties the hiring hall was open to them before it
could assert a valid claim that the Charging Parties made themselves unavailable for
dispatch. Consequently, it is found that, for the purpose of making a finding of discrim-
ination herein , the Charging Parties were available for work during the entire fourth
quarter of 1964.
7 Dispatcher Oldland testifies that he had no explanation to why the Charging Parties
did not receive any work during October, November, and December 1964.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Excluding the Charging Parties, the 14 highest earning casuals had the following
work experience in the fourth quarter of 1964. In three cases, the fourth quarter
yielded the highest earnings; in six cases , it was the second highest ; in three cases,
it was the third highest ; and, in only two cases , it was the quarter for the lowest
earnings.
Thus, is can be accurately stated that although the eanrings of the Charging Par-
ties were among the highest of the 400 casuals for the first part of 1964 after they
engaged in picketing and otherwise protested the dispatching system, their earnings
from work as longshoremen diminished to zero although they continued to attempt
being dispatched . The earnings of the 14 highest earning casuals in 1964 continued
at the same approximate amount through the first quarter of 1965. During that
period, Warnken was available for work and regularly reported to the hiring hall,
as did Wilson , until February 16 , 1965. Neither was dispatched at all during the
first quarter of 1965.
One other development merits mention . At the meeting of the joint Port Labor
Relations Committee of October 21, 1964, it was brought to the attention of the
members that unfair labor practice charges had been filed. The employer-members
then announced they would have nothing further to do with the grievance the Charg-
ing Parties had presented to the Joint Port Labor Relations Committee . Conse-
quently, no disposition was made by the committee of the grievance.
D. Concluding findings
1. Responsibility of Respondent Local 12 for acts of hiring hall dispatcher
The acts of discrimination were performed by the hiring hall dispatchers in
refusing to dispatch the Charging Parties, although there was available work, and
by excluding them from the Local 12 hiring hall.
The 1961-66 Longshore Agreement specifies that the Joint Port Labor Relations
Committee shall be responsible for the hiring hall and shall appoint personnel to
operate it except for the dispatchers who are elected by the local union having juris-
diction over the port . Under the contract the Joint Port Labor Relations Commit-
tee is composed of members appointed in equal numbers by the PAM and the ILWU
International . Thus, it is apparent that the Joint Port Labor Relations Committee is
an instrument of PMA and the ILWU International . Although the local union
elects the dispatchers , they are subject to standards set by the Joint Port Labor
Relations Co_ mittee. Therefore, it follows that PMA and the International are
subject to being held responsible for the acts of the dispatchers.
However, the question here presented is whether Respondent Local 12 is properly
liable for the acts of the dispatchers , Jakovac an d Oldland. This question is answered
in the affirmative for the following reasons. The preambles to the 1961 -66 Long-
shore-PMA agreement specifies what would otherwise be a reasonable assumption.
It states the agreement was made on behalf of the International and the local unions.
The bulk of the agreernent, as well as the preamble, makes it clear the international
and the local unions have a common interest aid- are engaged in a joint enterprise
to act on behalf of the individuals w ho come under the terms and scope of the agree-
reent. This being so, it follows that the legal relatio chip between the ILWU Inter-
national and that of its locals is that of joint venturers for adventu_ers).9 In such
a relations _ip , lit that of a partnership, the acts of each par ty are binding on the
other, absent special circumstances not here present..la App _'ing this concept to
"The preamble reads:
TI-ITS AGEEEME T. dated June 16, 1961 and amended June 22, 1962, is by and
between pacific Maritime Association (herein-after called "the Asscciation" on be-
hall. of its members ( hereinafter designated as "the Employers" or the "individual
employer"), and the International Longshoremen ' s and Warehousemer- 's Union (here-
inafter designated as 'the Union"), on behalf of itself and each and all of its
longshore locals in California, Oregon and Washington ( hereinafter designated as
"longshore locals") and all employees performing work under the scope, terms and
conditions of this Agreement.
® See International Longshoremen 's and Warehouserzen's inion and, IL ` U Local 10
( Waterfront Employers Association of the Pacific Coast ), 9-1 - LBB 1091, 1096, where
under somewhat different record facts . T_LWU International and ILWU Local 12 were held
to have a joint venture relationship. -
1030 Am. Jur. Joint Adventurers § 55 (1958 ). The general rule is that each. member of
a joint enterprise acts bothas principal and agent of the others as to those things done
within the apparent scope of the business of the project and for its benefit.
IVT L LOl GSHORs:\,IE1 S & Iy ARE:rIOI; SE1LE\'S UNION 1049
the facts here, it follows that the acts of the dispatchers are binding on Local 12
since the Local is bound by the act of International, a joint venturer with Local 12.
Applying the rules of agency, a similar result is obtained. Since Local 12 elected
the dispatchers and pays for one-half the cost of maintaining the dispatching hall, it
follows that it is responsible for the acts of dispatchers whom it selects and pays.
This result is not foreclosed by the fact that the dispatchers are subject to meeting the
standards set by the Joint Port Labor Relations Committee.
Consequently, whether the dispatcher is viewed as an agent of Local 12 or the
International, responsibility for his acts fastens on Local 12.
If the Joint Port Labor Relations Committee is bound by the acts of the dis-
patcher, the International is bound through its role in creating the committee and
the responsibility of the Local is traced through its joint venturer relationship with
the International.
If Local 12 is bound directly by the acts of the dispatchers, its responsibility for the
acts of the dispatchers is established by recourse to the ordinary rules of agency.
In connection with the episode of October 8, 1964, when Assistant Dispatcher
Jakovac ordered Thomas and Warn'-en from the hiring hall, he was accompanied
by Local 12's president, Armstrong. This indicates the Respondent's president rati-
fied and put Local 12's stamp of approval on the act of the dispatcher in denying the
use of the hiring hail to the Charging Parties.
It is well established in similar situations that a dispatcher can bind both the
union or unions and an employer by a single act. N.L.R.B. v. Cement Masons
Local No. 555, Operative Plasters and Cement Masons International, AFL
(Anderson-Westfall Co.), 225 F. 2d 168 (C.A. 9); N.L.R.B. V. Waterfront Employers
of Washington, et al., 211 F. 2d 946 (C.A. 9).
2. The concerted activities involved
In addition to the picketing by the Charging Parties and their processing a griev-
ance before the Joint Port Labor Relations Committee, there is further evidence of
concerted activity in connection with protesting the method of operating Local 12's
hiring hall. The Charging Parties were evicted from the hiring hall for alleged acts
that had been committed prior to October 8. the date of their eviction. These alleged
activities are described as follows by Assistant Dispatcher Jakovac:
Well I couldn't really tell what was going on that morning but I know that there
had been a period of time there for several days when these people had been
walking around the hall and they were clustered up in bunches and were talk-
ing to other people and were trying to start a strike against the hiring proce-
dure; and they were pretty active for a period of time and they were in a sense
disrupting the people there and the men at all times; and I know that they had,
at times, told people to rush up to that window. It reached the boiling point,
you might say, on that one particular morning.
Jakovac further testified:
I just didn't like the idea of their disrupting the hiring procedures. It's bad
enough to hire people out there where you got all these hungry faceslooking at
you wits-out people rushing up to the window. You don't-i have a little
trouble anyhow and I did have, because as I said before, I only came in there
on a Monday-or on an occasion.
Q. `vat do you mean you have troubles?
A. Well, in fact, at one time, these people didn't like the procedures that I used
because it was very difficult for me to see out through this s -mall window and
everything and on this particular morning, I had 28 jobs. So I just- ,nerved
the door and I ,vent out and I se ected 28 men and lined them up and this was
much better, I Thought. It expedited the hiring. This was much better than if
I pointed my finger, five or six of them would rush the window ; and I thought that
would do it in a little more orderly fashion as far as the dispatching was con-
cerned, it vent much smoother, just to select there in that manner. And
apparently these people objected to that. They prefer to rush the window, first
come, first serve.
Jackovac testified further on cross-examination about the activities of the Charging
Parties, "This happened before, but when they were out there the day previously, and
this includes Mr. Wilson was out there-at this particular time, they were motioning
people up to the window. T ey done this for two or three days and they were out
there just talking to al these people and trying to get them stirred up and `Go on up,'
they said, `there is plenty of work.' '
1050 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
Thus, even taking Jackovac 's version of the activities of the Charging Parties as
accurate , it further establishes that the reprisals directed by the dispatcher against them
were motivated by their concerted specific objections to the method of hiring as well
as because they had picketed and filed grievances with reference to the same subject.
3. Discrimination to encourage membership
Taking first the question of discrimination, it is found that it is established against
the Charging Parties by reference to their employment record.
On October 5, 6, and 7, 1964 , the Charging Parties were not dispatched , although
present in the hiring hall when jobs were available and there were no other casuals
present. It is also established by their exclusion from the hiring hall from October 8
until November 13, 1964, when they returned after being advised to do so by a Board
representative.
Discrimination is also established by the earnings records wh ich reflect a complete
Jack of employment obtained by the Chargi ng Parties in the fourth quarter of 1964;
in the case of Warnken , until the date of the hearing ( March 23 , 1965), and in the
case of Wilson , until February 14, 1965 , when he obtained of er employment. This
failure to obtain work occurred although the Charging Parties regularly reported
for work at the hiring hall.
Also of significance is the fact that the average earnings of the 14 highest paid
casuals for the fourth quarter of 1964 were approximately the same as in the first
"three , quarters of 1964. Since , as previously indicated, the earnings of the Charging
Parties for . the first three quarters of 1964 approxi mated that of the 14 highest paid
casuals , and since they could earn noth ing in the forrth cuarter, there arises a very
persuasive inference which establishes the Charging Parties were discriminated against
in their search for employment by the hiring hall . dispatcher. It is equally clear that
the reason for such discrimination was in reprisal roe the concerted protected activities
engaged in by the Charging Parties . The punitive intent= of Respondent is demon-
strated by the erc7 LS1On Of the Charging -Parties from tie hiring hall as well as the
denial of any employment commencing in the fourth quarter of 1964.
The discrimination here was of the type to encourage union membership in that
it as des, ned to compel adherence to unon. o iP_ the operation of the hiring
In Radio Officers' Union (A . 7. Bid. Steamship Company-) v. N.L.R.B., 347 U.S.
the Court re Ogi]:2ed that spec cc proof of an intent =o encourage . r •i e 'oel'Si`'_'F
is not necessary , where as here the Union sought to enforce the union policy through
discrimination in employment ; for encouragement of union membership is "obviously
a natural and fcreseeab'e co-tseguence " of discrimination so predicated.
It is not necessary for a violation of 8(b) (2 ) to ascertain particular employers who
have been caused to discriminate . in N.L.R.B . v. Waterfront Employees of Washing-
ton, supra , a violation of 8(b) (2) and 8(b)(1) (A ) of the Act was based on the dis-
criminatory denial of employment by a hiring hall dispatcher . This same result
obtains here . The dispatcher, a representative of Local 12 and the International
ILWU, and also a representative of PNIA, caused the discrimination . His discrimina-
tion , acting as the representative of Local 12 and the International. caused discrimina-
tion by PMA of the employees involved.
Similarly, in Lutnmus Company , 339 F. 2d 728 , 735 (C.A.D .C.), the same concept
is recognized.
Before leaving the discussion of the Union 's liability under the statute , we note,
because it becomes important to a construction of sections applicable to
employers , that a union may violate the statu te by causing any and all employers,
without individual identification , to discriminate , etc. Thus, as in the present
case, if a union has an exclusive hiring hall for all employers having work in a
given area , and it refuses to refer to any employer whatsoever , for the proscribed
reasons, it violates the Act.
In view of the findings herein, it is found that Respondent , by its acts, violated
Section 8 (b) (1) (A) and 8 (b) (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent as set forth above, occurring in connection with the
operations described in section I. above, have a close, intimate, and substantial rela-
tion 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.
IN T'L LONGSHOREMEN'S & W =AREHOT; SE_MEN'S L' NION 1051
V. THE REMEDY
In view of the unfair labor practices found above, it will be recommended that
Respondent cease and desist from its unfair labor practices, and take affirmative action
designed to effectuate the policies of the Act.
The record reflects that beginning on October 5, 1964, the Charging Parties were
denied employment when all of the other workers in the hiring hall had been dis-
patched to work. Inasmuch as this is the first specific date that discrimination can be
definitely found to have occurred, it will be recommended that Respondent make
whole the Charging Parties from October 5, 1964. Such payment shall be equal to
the amount of wages they would have earned but for the discrimination practiced
against them together with interest thereon at the rate of 6 per cent per annum. The
loss of pay and interest is to be computed in accordance with the formula and methods
prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. Respondent Local 12 is, and has been at all times material, a labor organization
within the meaning of the Act.
2. Pacific Maritime Association is, and has been at all times material, an employer
within the meaning of the Act.
3. Donald Wilson, Bernard Warnken, and Lee Thomas have been at all times
material herein employees within the meaning of the Act.
4. By causing discrimination against Donald Wilson, Bernard Warnken, and Lee
Thomas, Respondent Local 12 has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(b)(2) and 8(b)(1)(A) of the Act.
5. By restraining and coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act, Respondent Local 12 has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is recommended that International Longshore-
men's & Warehousemen's Union, Local No. 12, its officers, agents, and representatives,
shall:
A. Cease and desist from.
(1) Discriminating in the hire and tenure of employment of Donald Wilson, Lee
Thomas, and Bernard Warnken, by failing and refusing to dispatch them to work by
reason of the protected concerted activities engaged in by said individuals.
(2) In any other like manner interfering with, restraining, or coercing Donald
Wilson, Lee Thomas, and Bernard Warnken in the exercise of their rights guaranteed
by Section 7 of the Act, except to the extent that such right may be affected by an
agreement made in accordance with the provisions of Section 8(a)(3) of the Act
requiring membership in a union as a condition of employment.
B. Take the following affirmative action which is found will effectuate the policies
of the Act:
(1) Make whole Donald Wilson, Lee Thomas, and Bernard Warnken in the manner
specified in the portion of this Decision entitled "The Remedy" for any loss of pay
suffered by them as a result of the discrimination of International Longshoremen's &
Warehousemen's Union Local No. 12 against them.
(2) Notify the Joint Port Labor Relations Committee of North Bend-Coos Bay
and the dispatchers of the hiring hall in that area, and furnish copies of such notices
to Wilson, Warnken, and Thomas, that Wilson, Warnken, and Thomas will have full
use of this hiring hall without discrimination in connection with their dispatch to
employment.
(3) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all or any other
records necessary for the detemmation of the amount of backpay due under the terms
of this Recommended Order.
1052 DECISIONS OF NATIONAL LABOR RELATION S BOARD
(4) Post in its offices and in the North Bend-Coos Bay hiring hall, copies of the
attached notice marked "Appendix A." 11 Copies of this notice to be furnished by the
Regional Director for Region 19, shall, after being duly signed, be posted immediately
upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent Union to insure that said
notices are not altered, defaced, or covered by any other material.
(5) Notify the Regional Director, in writing, within 20 days from the receipt of
this Decision and Recommended Order :what steps Respondent International Long-
shoremen's & Warehousemen's Union, Local No. 12, has taken to comply therewith.12
n If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words, "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
"If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 19, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN'S &
WAREHOUSEMEN'S UNION, LOCAL. No. 12
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that: -
WE WILLNOT cause or attempt to cause any discrimination in the course of the
employment of Donald Wilson, Bernard Warnken, or Lee Thomas by discrimi-
natory treatment in connection with their dispatch to work from the North Bend-
Coos Bay hiring hall.
WE WILL make whole Donald Wilson, Bernard Warnken, and Lee Thomas
for any loss of pay they may have suffered as a result of our discriminatory
action against them.
LNTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S
UNION, Loc_AL No. 12,
Labor Organization.
Dated ------------------- By------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Subregional Office, 612 Lincoln
Building, 208 SW. Fifth Avenue, Portland, Oregon, Telephone No. 226-3361.
Getlan Iron Workers, Inc. and Shopmen's Local Union No. 455 of
the International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO. Case No. 29-C.4-72. Nove z
ber 18,196
DECISION AND ORDER
On August 11, 1965, Trial Examiner Sidney D. Gold erg issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in ce rtain unfair labor practices
and recommending that it cease and desist therefrom and take certain
155 NLRB No. 90.