Kaiser Gypsum Co., Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1957

118 N.L.R.B. 1576 (N.L.R.B. 1957)

1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The suddenness of the discharge without prior warning and the evidence of
Respondent's hostility to the Union raise a suspicion that Respondent 'discharged
Todd for the purpose of eliminating from the, scene a union protagonist. , On the
other hand, the fact that Shop Foreman Conwell determined to discharge Todd.
immediately upon finding him absent and his machine in a cleaned-up condition
and before Todd's absence had been reported also raises a suspicion that Conwell
was disturbed by Todd's absence without prior clearance from him (Conwell)
and that Conwell acted in haste and without antiunion considerations. In . any
event, suspicion.is not proof and the onus is upon the General Counsel to estab
lish by a preponderance of the credible evidence that the discharge was motivated
by antiunion considerations. In the opinion of the Trial Examiner, the General
Counsel has not sustained this burden. The Trial Examiner is unable to-find
that the discharge was without justification. Furthermore, the Trial Examiner is
not convinced the discharge was a delayed .retaliation against Todd because of
his activities on behalf of the Union during April or was motivated by Todd's
promotion of the Union during June and July, and that the assigned reasons were
pretexts. There is no direct evidence to this effect and the Trial Examiner believes,
although the matter is not free from doubt, that such inferences are not warranted.
ULTIMATE FINDINGS AND CONCLUSIONS
In summary, the Trial Examiner finds and concludes:
1. The evidence adduced in this proceeding satisfies the Board's requirements
for the. assertion of jurisdiction herein.I"
2. Lodge 790, International Association of Machinists, AFL-CIO, is a labor
organization within the meaning of the Act.
3. The evidence adduced establishes that Respondent interfered with, restrained,.
and coerced employees in the exercise of rights guaranteed in the Act and thereby
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices occurring in connection with the opera-
tions of Respondent's business, 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 and
are unfair labor practices affecting commerce within the meaning of Section 2 (6)
and (7) of the Act.
5. The evidence adduced does not establish that Respondent discharged Bill R.,
Todd because of his union or concerted activities.
[Recommendations omitted from publication.]
's Respondent engages in Tulsa, Oklahoma, in the manufacture, sale, and distribution
of winch tools and other manufactured items and in the course of conduct of its business
annually receives from points and places outside of Oklahoma materials valued in excess
of $360,000, and annually ships finished products having a value in excess of $450,000
in interstate commerce to points and places outside of Oklahoma.
Kaiser Gypsum Company , Inc. and Joseph P. Dockendorf
Sailors' Union of the Pacific (Kaiser Gypsum Company, Inc.)
and Joseph P. Dockendorf . Cases Nos. 21-CA-1978 and 51-CB-
596. October 11, 1957
DECISION AND ORDER
On May 29, 1956, Trial Examiner Henry S. Sahm issued his inter-
mediate Report in the above-entitled proceeding, finding that the
allegations of the complaint that the Respondents herein had engaged
in unfair labor practices within the meaning of Section 8 (a) (1),
8 (a) (3), 8 (b) (1) (A), and 8 (b) (2) of the Act have not been
sustained and recommending that the complaint against the Respond
118 NLRB No. 217.
KAISER GYPSUM COMPANY, INC. 1577
ents be dismissed in its entirety, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
Respondent Company and Respondent Union filed briefs opposing
the exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Murdock, Bean, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
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 briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the additions and modifications
noted below.
We agree with the General Counsel that a contract providing for
preferential hiring of union members constitutes an illegal hiring
arrangement.' But we do not read the instant contract (if it was
applicable at the time in question as will be discussed infra) as pro-
viding for preferential hiring of radio officers. The contract con-
sists of 4 parts : General rules and 3 separate parts covering
the 3 classes of employees mentioned, licensed deck, engineering,
and radio officers. Section 1 of the general rules is the recognition
clause and reads :
The Company agrees to recognize the Union as the representative
for the purpose of collective bargaining of their licensed deck
and engineering personnel. [Emphasis supplied.]
The record is not clear as to whether radio officers are within the
category of deck personnel and the Trial Examiner made no finding
on this question. It was conceded by the General Counsel that deck
and engineering officers are not "employees" within the meaning of
the Act, being supervisory. If radio officers are included as deck
personnel, the same reasoning would apply. Certainly section 1 does
not contain any distinct agreement to include radio officers in the
collective-bargaining unit but is limited to two classes, deck and
engineering, although the contract subsequently makes provisions for
radio officers. No attempt was made on the record to clarify this
ambiguity, nor was there any mention made of section 1 of the recog-
nition clause.
The provision which the General Counsel contends is illegal with
respect to radio officers is contained in section 2 of the general rules
reading as follows :
1 Pacific American Shipowners Association, et at., 98 NLRB 582; New York State
Employers Association, Inc., 93 NLRB 127, enfd. sub now. Red Star Express Lines of
Auburn, Inc., 196 F. 2d 78 (C. A. 2) ; Permanente Steamship Corporation , 107 NLRB 1111.
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 2 (b). The Company shall give preference in employ-
ment to members of the Union, and shall secure their licensed deck
and engine personnel through offices of the Union (except as in
(a) above) 2
Section 2 (c) must be read in conjunction with section 2 (b) above,
and reads as follows :
The Union agrees to furnish capable, competent licensed deck
and engineering officers when called for, and if such officers are
not furnished with sufficient promptness to avoid delay of any
scheduled sailing, the Company is at liberty to employ officers
coming under this agreement from any source available, however,
such employee shall become a member of the Union within thirty
days from the date of his employment.
It was conceded that the Union does not admit radio officers to
membership so that at first glance section 2 (b) requiring the Com-
pany to give preference to members of the Union does not apply.
But the General Counsel contends section 2 (b) applies to radio
officers by reason of section 1 of the wage and working rules of the radio
officers department which contains the following provision :
General Rules Applicable
All applicable provisions of the General Rules for Licensed Of-
ficers except Sections 13, 14, 20, 24, 33 and 35 shall apply to
Radio Officers.'
The General Counsel argues that section 2 (b) applies by the ex-
tension of the general rules and therefore, by reason of the alleged
inclusion of radio officers, the provision is invalid. We do not agree.
Section 2 (b) is specific in two respects, which militate against the
General Counsel's contention : (1) it provides that the Company shall
give preference to members of the Union-the Union does not admit
radio officers to membership; and (2) it shall secure their licensed
deck and engineering personnel through the Union. This is the same
language contained in the recognition agreement.
In section 2 (c) the Union agrees to provide capable and com-
petent licensed deck and engineering officers. It further provides that
the Company, if the Union does not meet the above requirement, is
at liberty to hire from the outside subject to the proviso that such
outside hirings must join the Union within 30 days. There are no
like provisions for radio officers presuming that section 2 (b) is
extended to cover radio officers. Nor could there be, because the
Union does not admit radio officers to membership. Moreover, the
a Section 2 (a) provides that the Company has the absolute right to select the master
and chief engineer.
3 These'sections of the general rules cover watches at sea, meals, etc.-subjects covered
specifically in general rules for radio officers.
KAISER GYPSUM COMPANY, INC. 1579
provision by which the General Counsel seeks to include radio offi-
cers within the scope of section 2 (b) reads: "All applicable pro-
-visions," not all provisions as the General Counsel seems to contend.
It is clear that that part of 2 (b) providing for a preference to mem-
bers of the Union is not an "applicable" provision because the Union
has no radio officers as members.
The Respondents contended that it was not their intention to in-
clude radio officers within the limits of 2 (b) and the General Counsel
,offered no proof to the contrary. We find merit in the Respondents'
rcontention. We would accordingly find that there is no proof that
the preferential hiring provision applied to radio officers.
Nor is there any substantial proof in the record that such a pro-
vision was in existence between February 15 and 20, 1954, the dates
in question. Tennant, the company representative, and the only
witness on the subject of the contract, stated without contradiction,
that on February 15, the previous contract covering the SS. Harry
Lundeberg was extended to the SS. Western Ocean "with respect to
wages and working conditions." Later on, when the ship was at sea,
the formal contract was adopted and made retroactive to February 15.
Tennant testified that on February 15, when he agreed to extend the
wages and working conditions of the Lundeberg contract to SS.
Western Ocean, no "hiring procedures" were discussed but that he
did ask Harry Lundeberg of the Union to send him needed personnel.
We cannot infer from this a contractual obligation or that any con-
tract with respect to hiring was in existence on those dates, and we
would reverse the Trial Examiner's conclusion to that effect.
Nor can we find, in the context of the present case, that there was
any delegation by the Company to the Union of the exclusive authority
to hire. As determined above, there was no contractual delegation of
authority on February 15, 1954. The uncontroverted evidence is that
hiring procedures were not discussed and that Tennant merely re-
quested Lundeberg to send him the crew he needed. The practice for
the Union when it received such a request was to contact Radio Officers
Union, AFL (ROU) for a referral of a radio operator. The Re-
spondent Union had no contractual obligation with ROU to do so and
at times called on other unions to supply personnel. Indeed, in the
instant case, it first called on ROU, then arranged for American
Radio Association, CIO (ARA) to substitute an officer. It may be
contended that regardless of whether the contract was in existence,
nor whether if in existence it provided for preferential hiring, the
facts show that the Company "delegated" to Lundeberg the exclusive
authority to hire a radio officer, or, by implication, he obtained exclu-
sive authority because he was requested to refer an officer and did so
refer one. The proof does not support such inference of fact of exclu-
sive authority. All we have here, based on the only credible evidence
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the record, is a request by the Company to Lundeberg to refer per-
sonnel-with no hiring arrangements being discussed. We are unable
to infer from such request, an exclusive authority to hire or to refer.
The General Counsel predicated his complaint on the theory that
the Union refused to allow the Company to hire Dockendorf on Febru-
ary 19 because of Dockendorf's argument with Patrolman Ellis on
February 18 concerning his past remarks about the Union and Lunde-
berg. The Trial Examiner, however, correctly found that Roe was
referred by the Union before the argument took place and that the
Company hired Roe before it obtained knowledge of Dockendorf's de-
sire to remain on the boat and of his argument with Ellis, and that for
these reasons Dockendorf was not discriminated against.
At the hearing, however, the General Counsel modified his theory
and took the position that Dockendorf was also discriminated against
on. February 20 when his opportunity to replace Roe was denied by the
Union because of its alleged animus towards Dockendorf. The Trial
Examiner found no merit in the General Counsel's new theory and
found that no discrimination against Dockendorf occurred on that
date. While we agree with the Trial Examiner's final conclusion, we
reach it for different reasons set forth below.
It is well established that there can be no violation of Section 8 (b)
(2) by a union unless it causes or attempts to cause the employer to
discriminate against an employee in regard to hire, tenure of employ-
ment, or terms or conditions of employment. In the instant case,
there is no showing that the Union either directly or indirectly caused
or attempted to cause the Company to deny employment to Docken-
dorf. In his telephone conversation with Tennant on February 20,
Lundeberg merely asked Tennant if the Company would have any
objection if the ROU man was replaced by an ARA man. Docken-
dorf's name was not mentioned. Nor can we infer that the Union
caused or attempted to cause the Company to deny employment to
Dockendorf from the mere existence of the Company's request for
the referral and the Union's compliance therewith. In the absence of
an exclusive hiring agreement or practice, there was no obligation on
the part of the Company to accept for employment any radio officer
referred by the Union. We have held that the policy of hiring through
a union is not necessarily violative of the Act.' The mere fact that
the employer utilizes the employment facilities of the union on a non-
exclusive basis because these facilities best suit his need for obtaining
experienced personnel, does not prove that the parties were operating
on a closed-shop basis or were engaging in prohibited conduct.'
4 Jerry Fairbanks, Inc., 100 NLRB 556 ; The M. W. Kellogg Company, at al., 94 NLRB
526; Missouri Boiler and Sheet Works, et al. . 93 NLRB 319.
G American Pipe and Steel Corporation, 93 NLRB 54 , 62; Port Chester Electrical
Construction Corporation, 97 NLRB 354; N. L. R. B. v. Brotherhood of Painters, at al.
(Spoon Tile Co.), 242 F. 2d 477 (C. A. 10).
KAISER GYPSU M COMPANY, IN C. 1581
Similarly, in the absence of an exclusive hiring agreement or
practice, the Union was free either to refer or not to refer Dockendorf
for any reason without violating Section 8 (b) (2) of the Act.'
Assuming, however, that some authority, express or implied, to
refer a radio officer may have been given to Lundeberg on Febru-
ary 15, we do not believe that the General Counsel sustained his
burden of showing that the Respondents caused discrimination against
Dockendorf on February 20 within the meaning of Section 8 (b) (2).
In our.opinion, the essence of this case, and the theory on which the
General Counsel now relies, is whether on February 20, the Union
denied Dockendorf the opportunity to replace Roe because of its
alleged animus toward Dockendorf. Dockendorf, on February 13,
when he learned of the pending transfer of the vessel and the auto-
matic termination of his employment, sent a radiogram to O'Rourke,
vice president of his Union, the ARA, stating he anticipated his
replacement would be either an ROU or SUP man hired by the new
charterers. He stated that he would follow O'Rourke's advice "to
protect my and ARA job." O'Rourke, who was a witness for the
General Counsel, testified that he did not contact Lundeberg until
February 20 at which time he called Lundeberg and asked whether
there was any objection "to the Radio Officer being kept on the vessel."
O'Rourke testified that he did not know in his first conversation
that Roe, an ROU man, had already been hired. Lundeberg stated
that he thought it would be all right "since normally he did not con-
trol radio officer's contracts, he didn't see any reason why Air. Dock-
endorf could not stay on the vessel." Lundeberg then called Tennant
of the Company and inquired whether he had any objection to a
CIO (ARA) man replacing the ROU man. By this time Roe had
already signed shipping articles, and neither the Company nor the
Union had legal power to remove him without his consent. Tennant
replied he didn't care as long as the man was qualified. Subse-
quently O'Rourke withdrew Doekendorf's application before the time
Roe consented. Later Lundeberg called O'Rourke and said that he
had checked and found that "the crew was up in arms against him
(Dockendorf) for things he said criticizing the union and Air. Lunde-
berg and that (Lundeberg) would prefer that he (Dockendorf) not
°Local No, 63, United Brotherhood of Carpenters, at al. (J. L. Wroan (f- Son), 106
NLRB 231, where the union refused to issue working permits to nonmembers of the
union on the ground that union men were out of work; see, also, Local 148, Truck Drivers
and Warehousemen's Union, at al., 114 NLRB 1494, where the union denied clearance
to the employees of a subcontractor in order to compel him to abandon his contract with
the general contractor. N. L. R. B. v. Brotherhood of Painters at al., supra, modifying
Board decision, 114 NLRB 1171, where there was a practice to channel job applicants
through the union as a unilateral policy of the employer with nothing more than passive
acquiescence upon the part of the union. As the record was barren of any evidence of
any agreement or even tacit understanding, the court held that the evidence was in-
sufficient to sustain the Board's finding that the union enforced an illegal hiring practice
under such circumstances, and thereby caused the employer to discriminate against
employees within the meaning of Section 8 (b) (2).
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be on the ship for that reason"-and that because of the discontent
of the crew against Dockendorf, "he (Lundeberg) didn't feel that
he would like him to sail." O'Rourke then testified that he "was
unhappy about it" and suggested that Lundeberg let him put on
some other ARA man. Subsequently, Bay, an ARA man, replaced
Roe a few hours before the ship sailed. O'Rourke stated "I wasn't
demanding anything.. I was simply asking for favors"-the favor
being to have an ARA man replace the ROU man who had already
been hired. O'Rourke testified repeatedly concerning his anxiety
to keep the job for his union, ARA, and that he couldn't demand any-
thing of Lundeberg about replacing Roe. Dockendorf testified that
on February 23 he "relinquished his rights to the job for the best.
interest of his Union" though he had no rights to relinquish.
We have considered whether, though Lundeberg made no outright
refusal, his expressions of preference were, under the circumstances,
tantamount to a refusal. It is true, as O'Rourke stated, the ARA had
no claim on the job which was already filled-that all he (O'Rourke)
was asking was a favor which Lundeberg seemed to be in a position
to grant. Therefore O'Rourke was in no position to press Lundeberg
for the favor when Lundeberg expressed his preference not to have
Dockendorf sail and accordingly O'Rourke acceded readily to sug-
gesting another ARA officer. Possibly if he had pressed for Docken-
dorf, Lundeberg might have refused. But this is a pure speculation.
We can only draw inferences from the facts and we are of the strong
opinion that no inference can be drawn that Lundeberg refused the
favor and thereby discriminated against Dockendorf. It is to be noted
that Dockendorf has no right to the position which was already filled.
O'Rourke was his agent in applying for the position and O'Rourke
testified that he knew Dockendorf had no right to the job. O'Rourke
as agent of Dockendorf saw fit not to press his request for the favor
and when Lundeberg expressed his preference not to have Dockendorf
on SS. Western Ocean, O'Rourke withdraw the application before
there was a refusal. On the basis of the above, which constitutes the
only probative evidence of the dealings between O'Rourke and Lunde
berg, we are of the opinion that the General Counsel's contention that
Lundeberg refused to allow Dockendorf to replace Roe is not sup-
ported by the record.
Nor can we find upon the facts found above that the Company in
any manner denied employment to Dockendorf. The record does not
disclose that on February 20 the Company was in fact aware that
Dockendorf was still an applicant for the job. Lundeberg's inquiry
of Tennant had merely been directed to whether he had any objection
to the ROU radio operator being replaced by an ARA man. And
Dockendorf did not then seek employment directly of the Company,
as shown by his testimony at the hearing that he did not and would
KAISER GYPSUM COMPANY, INC. 1583:
not seek to be hired in any other manner than through the ARA..
Whether or not Tennant's reply to Lundeberg's inquiry may be deemed
to have conferred any authority upon Lundeberg to replace the ROU
operator with an ARA man, Dockendorf was not in any event dis-
criminated against because, as found above, his application for em-
ployment was withdrawn by O'Rourke before there had been any
refusal. As we are here concerned solely with the question of dis-
crimination against Dockendorf, and as it appears that his application
for employment was never presented for ultimate disposition either-
to the Company or to anyone on its behalf, the Company, as in the.
case of the Union, cannot be deemed to have violated the Act.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon the entire record in this case, upon consideration of the arguments and mo-.
tions of counsel, including the briefs filed by the parties and citation of cases alleged.
to be diapositive of the issues in this proceeding, and from observation of the de-
meanor of the witnesses while testifying, the Trial Examiner makes the following:
FINDINGS OF FACT 1
On February 12, 1954, the SS. Western Ocean, which was under charter to the;
Navy, was en route from the Orient to the United States when a radiogram was,
received from the shipowner, General Steamship Corporation, advising the master to.
proceed to Long Beach, California, instead of Seattle, Washington, its original desti-
nation. Somewhere between the diversion point and Long Beach, another radio-
gram was received stating that the Military Sea Transportation Service, Department.
of the Navy, the charterer of the vessel, was to terminate its "time charter" with,
the owner of the ship, the General Steamship Corporation, and that the ship was to,
be taken over by the Kaiser Gypsum Company, under a "bareboat charter." 2
In the maritime industry there are two basic types of charters. A "time
charter" is one under which the shipowner continues to operate the vessel; the crew
remaining employees of the owner, rather than the charterer, and the vessel being,
fueled and provisioned by the owner. This is distinguished from a "bareboat
charter," where the owner of the ship transfers the ship to the charterer who, in
turn, is responsible for operating, fueling, provisioning, and supplying the crew for
the vessel. Another distinction between a time charter and bareboat charter is that
the legal incidence of a bareboat charter is considered a change in ownership in that the
bareboat charterer is the employer insofar as his relationship to the crew is concerned.
The SS. Western Ocean docked at Long Beach, California, at approximately 7 a. m..
on February 18 and the Kaiser Gypsum Company, Inc., referred to herein inter-
changeably, as the Company and the Respondent Company, took over the charter-
as of 6:36 a. m. on February 19, 1954, from the ship's owner, General Steamship
Corporation. At the same time, the master of the Western Ocean, Captain Coppock,.
terminated his employment with the General Steamship Company and immediately
thereafter entered the employ of Respondent, Kaiser Gypsum Company, Inc.
Kaiser Gypsum Company, Inc., is a wholly owned subsidiary of Kaiser Industries,,
a Washington corporation with its principal place of business in Oakland, California,,
and with various branches some of which are located in Long Beach, California, and
'The testimony concerning some of the incidents involved in this proceeding is In--
complete as to specific details and the timing of some of the events are ambiguous and
self-contradictory as to specific dates so that the findings of fact made herein result from
the Trial Examiner's attempt to reconcile the evidence and determine not only the-
chronological sequence but also in some instances approximate times of day at which
these events occurred.
=The SS. Harry Lundeberg, owned and operated by the Respondent Company, sunk on:
February 8, 1954, which necessitated the charter of the SS. Western Ocean.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the State of Washington. It is engaged primarily in the manufacture and sale of
gypsum products. It annually sells and ships from its outlets in the State of California
directly to points outside the State of California, goods and products valued in excess
of $50,000. There is no issue herein concerning jurisdiction. By reason of the
foregoing facts, it is conceded and found that Kaiser Gypsum Company, Inc., is en-
gaged in commerce within the meaning of the National Labor Relations Act 3 and
subject to the jurisdiction of the Board.
The Charging Party, Joseph P. Dockendorf, was the radio officer aboard the SS.
Western Ocean,4 and in the employ of the General Steamship Company, when he
received the radiogram on February 13, 1954, stating that the Western Ocean was to
be taken over by the Kaiser Gypsum. Company under a bareboat charter. Upon
receipt of this information, Dockendorf sent a radiogram on February 13 to his
union, the American Radio Association, CIO, referred to hereinafter as the A. R. A.
Dockendorf's radiogram to his union reads as follows:
OWNERS GENSTEAMCO ADVISES BARE-BOAT CHARTERED VESSEL
SAN MARCOS RUN ONLY CHIEF MASTER REMAINING ETA LONG
BEACH WEDNESDAY PLANNED ON REMAINING MY SERVICES SAT-
ISFACTORY STOP ANTICIPATE MY RELIEF WILL BE MEMBER S. U. P
OR R. O. U. HIRED BY CHARTERER WILL FOLLOW YOUR ADVICE
TO PROTECT MY AND A. R. A. JOB .15
On February 15, the following radiogram from Phillip O'Rourke, vice president
of the American Radio Association, was received by Dockendorf while the ship
was at sea:
Reurtel have contacted Kaiser Gypsum and they advise that crew being dis-
charged and have also contacted Lundeberg of SUP 6 and matter will be
discussed.
On the same day, February 15, that the Respondent, Kaiser Gypsum Company,
signed a bareboat charter with the General Steamship Corporation for the SS.
Western Ocean, Fred W. Tennant, industrial relations administrator for Kaiser In-
dustries,7 met in San Francisco with Lundeberg, secretary-treasurer of the Respondent
Union, Sailors' Union of the Pacific.8 Tennant testified that it was verbally agreed
on February 15 between him and Lundeberg that the provisions of the collective-
bargaining contract between the Company and the Union, which had been in effect
on the sunk SS. Harry Lundeberg should apply to the SS. Western Ocean. Tennant
also testified that the actual signing of the new agreement was not effectuated until
"several weeks" later. It was agreed between Tennant and Lundeberg that the
Respondent Sailors' Union of the Pacific, AFL, hereinafter referred to interchange-
ably as S. U. P. and the Union, would be recognized by the Company as the repre-
sentative for the purpose of collective bargaining of not only their licensed deck
and engineering personnel but also the unlicensed crewmen aboard the SS. Western
Ocean. Included in the written agreement covering the licensed officers are the
following provisions: -
Sec. 2 (b) The Company shall give preference in employment to members
of the Union, and shall secure their licensed deck and engine department per-
sonnel through the offices of the Union [except the Master and Chief Engineer].
(c) The Union agrees to furnish capable, competent licensed deck and en-
gineering officers when called for, and if such officers are not furnished with
sufficient promptness to avoid delay of any scheduled sailing, the Company is
at liberty to employ officers coming under this agreement from any source
8 61 Stat. 136, as amended, herein called the Act.
4 Dockendorf had been dispatched to the job by his union, the American Radio Associa-
tion, CIO, on August 25, 1953.
s The abbreviations refer to Sailors' Union of the Pacific, AFL ; Radio Officers Union,
AFL ; and American Radio Association, CIO.
Harry Lundeberg is president of the Seafarers International Union of North America
and secretary-treasurer of the Sailors' Union of the Pacific.
1 Tennant had the responsibility for hiring the crew for the SS. Western Ocean. Ten,
nant also was authorized to negotiate and administer all collective-bargaining contracts
which applied to the Company's ships.
8It is conceded and found that the Respondent Union is a labor organization within
the meaning of Section 2 (5) of the Act. Sailors' Union of the Pacific is an affiliate of
the Seafarers International Union of North America, AFL. The AFL and CIO merged
subsequent to the issuance of the complaint in this proceeding.
KAISER GYPSUM COMPANY, INC. 1585
available; however, such employee shall become a member of the Union within
thirty (30) days from the date of his employment.
The contract contains the following licensed officer categories: deck department,
engine department and radio officers department.9 Under the radio officer classi-
fication, the agreement provides that "all applicable provisions of the General Rules
for Licensed Officers . . . shall apply," with certain exceptions not relevant to
the resolution of the salient issues in this proceeding.
Tennant gave to Lundeberg, at the same meeting on February 15, a written
"order" or requisition specifying the number and various categories of crewmen
he wished the Union to dispatch for the manning of the ship, with the ultimate right
in the Company to determine the competency and qualifications of those crewmen
referred by the Union and to reject those whom the Company might consider un-
suitable. Tennant also informed Lundeberg that he intended to employ on the SS.
Western Ocean as many of the crew which had been aboard the sunk SS. Lundeberg
as possible and he asked Lundeberg to refer additional seamen to the Company
to complete the crew list complement. Among the referrals requested was one
for a radio officer. Lundeberg agreed to this.10 Tennant also testified that of the
entire crew, he selected the captain, chief engineer, first engineer, and "a couple of
others" without using the Union's hiring facilities.ll
With respect to the radio officers, S. U. P. had an arrangement with its affiliate,
Radio Officers Union, AFL, hereinafter referred to as R. O. U., to furnish radio
officers for those ships for which S. U. P. was the collective-bargaining agent for
the crew. Therefore, when Tennant gave to Lundeberg the requisition for the
Union to dispatch a crew, including the radio officer, the Union notified the Wilming-
ton, California, office of its affiliate, R. O. U., to refer a radio officer to the Western
Ocean. Pursuant to this request, R. O. U. dispatched a radio officer by the name
of, Clarence Roe who brought his gear aboard the Western Ocean on February 18.
After the Western Ocean docked at Long Beach at about 7 a. m. on February 18,
Dockendorf went ashore and telephoned Phillip O'Rourke, vice president of his
union, who was then in Los Angeles, to inquire if he had learned whether he could
remain aboard the ship as radio officer. O'Rourke informed him that he had spoken
to Lundeberg and the latter had no objection to Dockendorf's request being granted.12
Upon returning to the Western Ocean at about 2 p. m., Dockendorf testified
that he went to the stateroom assigned to the ship's radio officer , and saw a suitcase
there. This is found to be an unmistakable reference to Roe who had been dispatched
by R. O. U. for employment as radio officer on the ship and who had brought his
gear aboard ship on February 18. While in this stateroom which had been his during
the previous voyage, Dockendorf was called to the master's cabin. Captain Coppock,
the master of the ship , introduced Dockendorf to Gordon Ellis, who is a patrolman
assigned to the Wilmington, California, office of the S. U. P.13 When Dockendorf
9 The SS. Western Ocean had only one radio officer.
10 The SS. Lundeberg, as it was a ship of foreign registry, flying the Panamanian flag,
employed nonresident aliens. The SS. Western Ocean, however, was a vessel of United
States registry, and under United States maritime regulations could not employ non-
resident aliens but could employ resident aliens. The radio operator on the SS. Lundeberg
had been a nonresident alien and therefore, was not eligible for employment aboard the
SS. Western Ocean.
11 Insofar as the 36 unlicensed crewmen on the SS. Western Ocean, the Company em-
ployed 18 men who had been on the SS. Harry Lundeberg, with replacements coming
from the union hall rather than from the employees of the General Steamship Company
who, had been on the Western Ocean prior to its charter by Respondent Company.
18 Although O'Rourke's radiogram of February 15, states that he "contacted Lundeberg,"
and Dockendorf testified that O'Rourke told him (Dockendorf) when the latter tele-
phoned him on February 18, that be had spoken to Lundeberg, O'Rourke on his direct
examination testified that the first time he spoke to Lundeberg about the radio officer's
assignment aboard the SS. Western Ocean was by telephone from his office in San
Francisco on the morning of February 20. O'Rourke' s testimony that the first time he
spoke to Lundeberg was on February 20 is credited. See footnotes 1 and 18.
13 A patrolman is a union representative delegated to handle problems arising in con-
nection with the administration of the collective -bargaining contract between the ship-
owner and union. His duties are to meet ships whose crews are covered by the union's
collective-bargaining contracts, collect dues from the members of the union , and handle
grievances which arose during the voyage. Ordinarily, the patrolman has nothing to do
with dispatching crew personnel to a ship.
450553-58-vol. 118-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extended his hand to acknowledge the introduction , Ellis refused to shake Docken-
dorf's proffered hand. Ellis, thereupon , launched into a bitter tirade, accusing Dock-
endorf of speaking to the crew members of the SS. Western Ocean during its last
voyage about the Sailors' Union of the Pacific and Harry Lundeberg, its secretary-
treasurer, in a derogatory manner. According to Dockendorf, Ellis said to the
master, "Captain , if this man signs on , I will refuse to furnish your crew ." However,
Captain Coppock testified that Ellis told Dockendorf that no S. U. P. member would
sail with him again, but he does not recall Ellis saying he would not furnish a crew
for the Western Ocean.14
After this argument with Ellis, Dockendorf went ashore and again telephoned
O'Rourke in Los Angeles, as he had not yet returned to San Francisco, informing
him of what had transpired between him and Ellis in the captain's cabin. O'Rourke
advised Dockendorf not to pay any heed to Ellis' threat, but to report to the ship
the following morning (February 19) in order to sign on as radio operator. Dock-
endorf then returned to the ship at approximately 3 p. m., received his pay, signed
off the Western Ocean as an employee of the General Steamship Corporation, and.
returned to his home.
On the morning of February 19, the Company took over the charter of the
Western Ocean. Tennant at that time, interviewed all of the new crew applicants
who had been referred to the ship by the Union, including Clarence Roe, a radio
operator dispatched by S. U. P. through its affiliate, the R. O. U. The first applicant
that Tennant interviewed and who signed articles was Roe (who had brought his
gear aboard ship the previous day), as he needed Roe's services to assist him in the
clerical duties incident to signing on the rest of the crew.
After the signing on of the crew on February 19, which was completed shortly
after the noon hour, Tennant, Berg (Company's steamship manager), and Captain
Coppock went to the captain's quarters. While there, Dockendorf entered and was
introduced by Captain Coppock for the first time to Tennant and Berg as Dockendorf
was not present when the crew was signed on that morning.15 After the social
amenities had been discharged, Dockendorf inquired of Captain Coppock when he
would be signed on as radio officer. The Captain referred the question to Tennant
who informed Dockendorf that the S. U. P. had already dispatched a radio officer
to the ship and that he had been employed.ls
From this point forward Dockendorf's version of what transpired differs from
that of Coppock, Tennant, and Berg. Although all who were present at that time
agree that Dockendorf's parting remark as he left the cabin that day when he
learned that Radio Officer Roe had already been hired was: "I'll see you in Court,"
there is disagreement as to what else, if anything, occurred.
Coppock, Berg, and Tennant testified that after Dockendorf was told a radio
officer had already been signed on, that Dockendorf turned on his heel, and as he
left the cabin was heard to say, "I'll see you in Court." Coppock, Berg, and Tennant
testified that other than the introductions and smalltalk incident thereto, this was
the entire extent of the conversation which Berg estimated took 3 to 5 minutes from
the time Dockendorf entered the captain's quarters until he left.
Dockendorf 's version of this incident is that when he was told Roe had been
employed, he remonstrated with Tennant about the assignment of this other radio
officer. It was then, Dockendorf testified, that Tennant told him that the reason he
was replaced was because Ellis, the Union's patrolman, did not approve of him.
Dockendorf testified he then told Tennant that O'Rourke had an agreement with
Lundeberg that there would be no objection to Dockendorf remaining aboard the
ship as radio officer. Coppock, Tennant, and Berg denied any such conversation ever
occurred, and that Dockendorf did not mention his argument with Ellis or O'Rourke's
agreement with Lundeberg. They denied that Ellis, O'Rourke or Lundeberg's names
were ever mentioned. Coppock also testified that he never told Tennant or Berg
about Dockendorf's argument with Ellis because February 19 was the first time he
had ever met Tennant and Berg and, "they were new men to me . I had no reason to
14 Captain Coppock testified that he did not disclose to any representative of the
Respondent Company that an argument took place between Dockendorf and Ellis until
after Dockendorf filed his unfair labor practice charge.
15 It should be noted that Dockendorf failed to follow O'Rourke's instructions of
February 18 to disregard Ellis' threat and to report to the ship on February 19, in order
to sign on as radio operator.
19 Captain Coppock testified that when the ship was inbound from the Orient, and it
was learned that the Western Ocean was to be chartered by the Company that Dockendorf
told him lie would like to remain as radio operator under the new employer. Coppock
•tactifind . however , that lie did not inform Tennant or Berg of this request.
KAISER GYPSUM COMPANY, INC. 1587
tell people I was not acquainted with what went on-was the General Steamship
business" [Coppock 's employer on the previous voyage].
Upon leaving the ship after this conversation, Dockendorf telephoned Lester
Parnell, an official of the Radio Officers Union, AFL, Wilmington, California, and
spoke to him about the Company having hired Clarence Roe, a member of the
R. O. U., as radio officer aboard the Western Ocean. Parnell told Dockendorf that
the S. U. P. had the contract for the Western Ocean and that S. U. P. had requested
the R. O. U. to dispatch a radio officer to the ship.17 After this telephone conversation
with Parnell, Dockendorf sent a telegram to O'Rourke the same day (February 19),.
advising him that the radio officer aboard the SS. Western Ocean was an R. O. U,
member by the name of Roe.
Upon receipt of this telegram, O'Rourke who, in the meantime, had returned to
San Francisco from Los Angeles, telephoned Lundeberg on the morning of Febru-
ary 20 iii and informed him that an R. O. U. man had been assigned as radio officer
aboard the ship. He asked Lundeberg if he would have any objection to Dockendorf,
who had been the ship's radio officer on its previous voyage, remaining aboard
the SS. Western Ocean as radio officer, now that it was under charter to the Company.
Lundeberg replied that he would look into the matter and that he would call O'Rourke
back. Lundeberg then telephoned Tennant and asked him if he had any objection
to Roe, the R. O. U. radio operator, who had been hired the day before, being
replaced by an A. R. A. man. Tennant told him he did not, provided the replace-
ment was qualified. Lundeberg, it appears, contacted his Wilmington office in the
meantime and was told about Dockendorf's friction with the crew, because when
Lundeberg telephoned O'Rourke back he told him that he had learned that Docken-
dorf had been involved in an incident with the crew on the Western Ocean's last
voyage which resulted in considerable friction. Lundeberg told O'Rourke that in
view of this friction the crew would refuse to sail with Dockendorf but, O'Rourke
testified that Lundeberg "didn't say he would keep the job away from us if we wanted
to put another man on." Thereupon, O'Rourke told Lundeberg that inasmuch as
the S. U. P. and not A. R. A. had the contract with the Company covering the
SS. Western Ocean, that he would appreciate it if the radio operator's billet aboard
the ship could be filled by an A. R. A. man. Lundeberg, as he had already spoken to
Tennant about it, agreed to the suggestion. O'Rourke then telephoned his Union's
Wilmington, California, office and Ben Bay, who was listed first on the A. R. A.'s
Wilmington office's rotary hiring register, was dispatched to the Western Ocean
on the afternoon of February 20.
On the afternoon of February 20, about 3 p. m., Roe, the R. O. U. man, told Captain
Coppock, who then told Berg, the Company's steamship manager, that because
of some interunion problem, he preferred not to sail on the ship (which was scheduled
to depart at 6 p. m. that day) and asked to be replaced. Because neither Berg nor
Coppock had any authority with respect to employment aboard the ship, Berg im-
mediately telephoned Tennant in Oakland, California, around 4 p. m. and advised
him about this crisis that had arisen. Tennant advised Berg to contact Parnell, an
official of the R. O. U. in the Long Beach area, to ascertain if Parnell could persuade
Roe to remain on board for one voyage as the ship was due to sail in a few hours.
Roe who was present when Berg telephoned Parnell then spoke to Parnell and Roe
agreed to sail as radio officer for at least the first voyage.
Berg, Coppock, and Roe then returned to the ship and found awaiting their return
Ben Bay, who advised them that his union, A. R. A., had referred him for the radio
officer's billet on the Western Ocean. Berg again telephoned Tennant and informed
him that they now had two radio operators and asked him what should be done.
Tennant told Berg that since Roe was reluctant to sail he should sign on Bay if he
17 Dockendorf testified , and this was corroborated by O'Rourke , vice president of the
A. It. A., that the It. O. U. normally furnishes radio officers for all ships sailing under
S. U. P. contracts as the S. U. P. does not maintain a radio officer's register. The
R. O. U. is an affiliate of S. U. P. in that it furnishes radio operators on request of
S. U. P. and is an independent union affiliated with the Maritime Trades Department of
the S. U. P.
78 This is further corroboration of the finding made above that the first time O'Rourke
spoke to Lundeberg with respect to retaining Dockendorf on the ship as radio officer
was on February 20 because it is uncontradicted that O'Rourke's telephone call to
Lundeberg was made in San Francisco upon his return from Los Angeles. Also O'Rourke's
radiogram to Dockendorf stating he had "contacted" the Company was sent at
10: 52 a. in. on February 15 (General Counsel's Exhibit No. 5) at a time when
Lundeberg and Tennant were evidently still conferring on the terms of their collective-
bargaining agreement.
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found him to be qualified. After interviewing Bay, Berg signed Bay on as radio
officer around 5 p. m. on the afternoon of February 20, Roe signed off the ship, and
the ship sailed at 7 p. m. that same day with an entire new crew, except for the
master and chief engineer. With these two exceptions, no employee who had been
aboard the SS. Western Ocean under General Steamship Corporation was employed
by Respondent Company.19
On February 20, the day the ship put to sea, Dockendorf did nothing to assert his
alleged right to the radio officer's job aboard the Western Ocean. As of February
20, Dockendorf was not listed on the A. R. A.'s rotary hiring register at either its
Long Beach or San Francisco hiring halls. Dockendorf did not register at the
A. R. A.'s San Francisco hiring hall, until February 23, 3 days after the Western
Ocean sailed. Nor did Dockendorf apply for a job at the S. U. P. or R. O. U.'s
hiring halls in Wilmington, California,20 or to any company representative prior
to the time that Roe was employed on the morning of February 19.
On February 23, Dockendorf traveled to San Francisco and spoke to O'Rourke
at the A. R. A.'s union hall with respect to his job status. At that time, O'Rourke
informed Dockendorf that Lundeberg had agreed he would not object to any A. R. A.
man, other than Dockendorf, filling the radio officer's berth on the Western Ocean,
and that he (O'Rourke) would appreciate it if Dockendorf would agree to waive
his alleged right to the job in order to "get the [A. R. A.] off the spot." O'Rourke
also told Dockendorf that his relations with Lundeberg were amicable, and that
for the good and welfare of the Union, he wanted them to remain such. He went
on to explain to Dockendorf that in view of the fact that their union, the A. R. A.,
did not have the contract for supplying radio officers to the Company's ship, would
he (Dockendorf) consider relinquishing any rights he thought he had to the job
aboard the Western Ocean. O'Rourke also promised Dockendorf that if he would
agree, he would write to the A. R. A.'s office in the port of New York requesting that
Dockendorf be accorded preference and priority in assignments to ships sailing from
East Coast ports. Dockendorf acquiesced and agreed to abide by O'Rourke's sug-
gestion to relinquish any alleged claim which he might have to the radio officer's
berth on the Western Ocean "for the best welfare of the [A. R. A.]." Dockendorf
also testified that he agreed to yield in favor of Bay because, "the job was already
filled.21 There was nothing I could do about it."
After his conversation with O'Rourke on February 23, Dockendorf filed charges
with the Board on April 30, 1954, and amended charges on October 18, against the
Company and Union. The Regional Director, acting for the General Counsel, issued
a consolidated complaint on December 2, 1955, alleging violations of the Act within
the meaning of Section 8 (a) (3) and 8 (a) (1) on the part of the Company, and
violations of Section 8 (b) (2) and 8 (b) (1) (A) by the Union. The complaint,
in part, reads as follows:
During the period from February 15, 1954, until July 15, 1954, the Company
,and the Union maintained and continued in effect a collective bargaining agree-
ment covering the licensed officers, including the radio officer, of the Steamship
Western Ocean which had been chartered by the Company from its owner. Said
collective bargaining agreement provided that the Company shall give pref-
erence in employment to members of the Union and shall secure its licensed deck
and engine department personnel, except the Master and the Chief Engineer,
through the offices of the Union.
Between February 12, 1954, and February 19, 1954, Dockendorf repeatedly
applied for employment as radio officer aboard the SS. Western Ocean to
representatives of the Company, to wit: Delbert Coppock, Fred Tennant, and
John H. Berg.
On or about February 18, 1954, a representative of the Union, known as
"Blackie" Ellis, demanded from representatives of the Company that, because
Dockendorf had made derogatory remarks about the Union and its secretary-
19 Of the crew of 86 men , 18 of them were formerly on the SS. Harry Lundeberg,
which was owned by Respondent Company and had sunk on February 8, 1954.
20 Wilmington is located in the Long Beach area which is the port for Los Angeles.
This evidently accounts for the witnesses referring to A. R. A.'s Southern California
office, as being located in both Long Beach and Wilmington.
21 Bay was listed first on the A. it. A.'s Wilmington, California, hiring register as of
February 20, 1954, which accounts for him being referred by A. R. A., to the Western
Ocean as radio officer, in accordance with O'Rourke' s agreement with Lundeberg, which
was approved by Tennant. O'Rourke also testified that under A. R. A.'s assignment rules,
Bay was entitled to the fob because when the Company took over the Western Ocean's
charter, the radio officer's billet was a "new job."
KAISER GYPSUM COMPANY, INC. 1589
treasurer, Harry Lundeberg, the Company failed and refused to hire Docken-
dorf, and said Ellis made threats to these representatives that, if the Company
did not comply with this demand, the Union would refuse to furnish a crew
for the SS. Western Ocean.
Pursuant to the illegal contractual provision, referred to [above], and
pursuant to Ellis' demand, * * * the Company, on or about February 19, 1954,
refused to employ Dockendorf but requested the Union to dispatch :another
radio officer to the SS. Western Ocean.
On or about February 19, 1954, the Union failed and refused to dispatch
Dockendorf to the Company for employment as radio officer aboard the
SS. Western Ocean because he had made derogatory remarks about the Union
and its secretary-treasurer, Harry Lundeberg.
On December 28, 1955, both the Company and the Union filed their Answers
denying the commission of any unfair labor practices.
A hearing was held in San Francisco, California, which commenced on January
9, 1956, before Trial Examiner Henry S. Salim. On January 11, the hearing was
adjourned in order to permit the General Counsel to seek enforcement of a sub-
poena directed to Phillip O'Rourke, vice president of the American Radio Asso-
ciation, who had refused to comply with the subpoena ad testificandum which was
served on him on December 6, 1955. The General Counsel thereupon instituted
proceedings and made application to the Federal District Court for an order requir-
ing Phillip O'Rourke to appear and to give testimony in this proceeding. The
District Court of the United States for the Northern District of California issued
an order on January 19, 1956, directing Phillip O'Rourke to appear and testify.
The hearing was resumed on February 29, at San Francisco, California, and
concluded on March 1, 1956.
All parties were represented by counsel, and were afforded full opportunity
to participate in the hearing, to introduce relevant evidence and to argue orally.
The motions of the Company and Union to dismiss the complaint at the end of
the General Counsel's case-in-chief were denied. Ruling was reserved on the
Company's and Union's renewal of their motions at the conclusion of their cases-
in-chief and are hereby ruled upon in accordance with the findings and conclusions
made herein. Briefs were filed by all the parties and have been carefully considered.
Ultimate Findings and Conclusions
Section 8 (a) (3) of the Act provides that it shall be an unfair labor practice
for an employer-
by discrimination in regard to hire or tenure of emplyoment or any term
or condition of employment to encourage or discourage membership in any
labor organization. . . .
Section 8 (b) (2) of the Act provides that it shall be an unfair labor practice
for a labor organization or its agents-
to cause or attempt to cause an employer to discriminate against an employee
in violation of subsection (a) (3)... .
With respect to the complaint's allegations of unfair labor practices on the part
of the Company and Union, the General Counsel initially contends that Section
2 (b) of the contract entered into between the Respondents and quoted above,
is illegal in that it accords preference in employment to members of the Union.
He further contends that the Union's hiring hall was discriminatorily operated
when it failed for proscribed reasons to refer Dockendorf for employment to the
Company. It might be well, therefore, at this point, in order to better understand
the issues in this case, to consider the conditions which gave rise to the hiring
hall in the maritime industry.
Conditions in the maritime industry often make it needful that there be some
place or means through which a ship's crew can be recruited, frequently on short
notice. Recruiting arrangements of this kind made between the shipowner and
the Union are called "hiring-hall" arrangements. A hiring hall is a location from
which a union fills requests for workers under a rotary hiring system. Under this
system, when a seaman is unemployed, he registers at the union hiring hall where
the registrants are listed in order of date of registration. When a shipowner
advises the union of vacancies, the union selects the men from the top of the
register and refers them to the shipowner.22
228 Intramural Law Review, New York University 178. For the legislative history
of the Labor Management Relations Act, 1947, with respect to hiring halls, see Sen.
Rept. No. 105, 80th Cong., 1st sess., p. 6; 93 Cong. Rec. 3836.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Before considering the General Counsel's contention that the Respondent Union's
contract with the Company was illegal and that its hiring hall was discriminatory
in its operation, a brief reference should be made to the court and Board cases
which have dealt with this problem 23
In American Pipe and Steel Corp.24 it was held that a contract which, by its
terms, merely requires the employer to notify the union of vacancies, and the
union, when requested, agrees to supply personnel, is valid because the arrange-
ment provides that workers need not be obtained only from the union, nor must
only union members be employed. In other words, its legality depends upon
whether nonmembers of the contracting union are discriminated against in hiring25
Conversely, a hiring-hall agreement which provides for preference in employment
to the contracting union's members violates the Act.26 The test of the legality of a
hiring-hall arrangement is whether in its operation it results in unlawful discrimina-
tion to nonmembers of the contracting union .27 And the union may commit an
unfair labor practice, even though the hiring-hall contract provides there shall be
no discrimination, "either in favor of or against prospective employees by reason
of membership in or nonmembership in the Union, "if, in effect, it is discriminatory
in its actual operation.28
In applying these principles to the provisions of Respondents' collective-bargaining
contract and to the facts in this case, no patent illegality is disclosed with respect
to the contract itself nor does the evidence reveal that the Union operated its hiring
hall in a discriminatory manner with respect to job referrals generally29 As to the
specific issue in this proceeding, namely, whether the evidence adduced by the
General Counsel shows the contract was discriminatory as to Dockendorf in its
actual operation, this question will be discussed in the succeeding paragraphs. In
order to determine whether the evidence sustains the allegations of the General
Counsel's complaint, the record must be examined as a whole, considering not
only the evidence tending to support said allegations but also the evidence which
does not support such allegations.30
Settled law establishes that, subject to one sharply defined exception, the rights
of an employee or an applicant for employment may not be abridged or terminated
because of his membership or nonmembership in a labor organization 31 Accord-
ingly, the Board and the courts have uniformly held that an employer violates
Section 8 (a) (3) of the Act if he requires membership in a labor 'organization as
a condition precedent to employment.32 Likewise, a union violates Section 8 (b)
(2) of the Act, where either by written agreement or by practice, it causes or
attempts to cause an employer to engage in such discrimination.33
The Supreme Court held in Radio Officers' Union of the Commercial Telegraphers
Union, AFL, v. N. L. R. B., 347 U. S. 17, 53, that Section 8 (b) (2) requires a
showing that the union caused or attempted to cause the employer to engage in
conduct which, if committed, would violate Section 8 (a) (3). Under the facts
23 See National Maritime Union of America, 78 NLRB 971.
24 93 NLRB 54.
"5N. L. R. B. v. Swinerton and Walberg Company, 202 F. 2d 511 (C. A. 9).
'a N. L. R. B. v. Alaska Steamship Co. et al., 211 F. 2d 357 (C. A. 9). See National
Maritime Union, 78 NLRB 971, 978, affd. 175 F. 2d 686 (C. A. 2), where the Board
held that the prohibition extends not only to instances where specific nonunion em-
ployees are discriminated against but also where the union seeks to cause the employer
to accept conditions under which any nonunion employee or job applicant will be
unlawfully discriminated against.
'IN. L. R. B. v. National Maritime Union , 175 F. 2d 686 (C. A. 2), cert. denied 338
U. S. 954, rehearing denied 339 U. S. 926.
2' American President Lines, Ltd., 101 NLRB 1417; see also International Union of
Operating Engineers, Local No. 12, AFL, 113 NLRB 655.
29 The burden of proof to show such discrimination was on the General' Counsel.
N. L. R. B. v. Swinerton and Walberg Company, 202 F. 2d 511 (C. A. 9), cert. denied
346 U. S. 814.
30 Section 10 (c) and 10 (e) of the Act.
31 Sections 7, 8 (a) (3), 8 (b) (2) of the Act and the proviso to Section 8 (a) (3)
with respect to a union-security provision.
32Y. L. R. B. v. Swinerton and Walberg Company, supra, at p. 514; N. L. R. B. v.
J. R. Centrall Company, 201 F. 2d 853, 855-856, cert. denied 345 U. S. 996.
3' N. L. R. B. v. International Longshoremen 's & Warehousemen's Union, 210 F. 2d 581
(C. A. 9) ; N. L. if. B. v. International Longshoremen's & Warehousemen 's Union, Local 10,
214 F. 2d 778 (C. A. 9) ; N. L. R. B. v. Waterfront Employers of Washington, 211 F. 2d
946 (C. A. 9).
KAISER GYPSUM COMPANY, INC. 1591
in this case, however, it was impossible for the Union to cause or attempt to cause
the Company to deny employment to Dockendorf because he never effectively
.applied for employment. There can be no job discrimination without an appli-
cation for the job and in the absence of some request by the job applicant, an
employer is not guilty of discrimination within the meaning of Section 8 (a) (3).
Dockendorf's neglectful failure to apply is further intensified when it is considered
that he did not apply for the job even though he admitted on his cross-examination
that he knew when the Respondent Company took over the ship's charter that he
was subject to discharge; that he did not have a prior right to the job, and that the
Company had the right to employ another radio operator.34 Not until the after-
noon of February 19, at a time when the crew had been signed on, and Roe, a radio
operator had been employed, did Dockendorf make known to the Company his
interest in the radio officer's position on the Western Ocean. Prior to that time,
he had never applied for the job to anyone who had the authority to hire him.35
By the time Dockendorf spoke to Tennant in the master's cabin on the afternoon
of February 19, the job had been filled.36 Inasmuch as Dockendorf did not seek
employment from the Respondent Company until after the radio officer's position
was filled, it necessarily follows that the Company could not discriminate against
him. Consequently, no relationship arose between the Respondent Company and
Dockendorf which is cognizable under Section 8 (a) (3) of the Act because he
never made a proper application for employment. Nor did the Union violate
Section 8 (b) (2) for the reasons hereinafter explicated.
The complaint also alleges that the Company and Union violated Section 8 (a)
(1) and 8 (b) (1) (A) of the Act. There was no evidence adduced directed
solely to violations of these sections of the Act, as the General Counsel's theory
was that if the Company and Union were guilty of discriminating against Docken-
dorf in the tenure of his employment, they would also be guilty of a derivative
violation of Section 8 (a) (1) and 8 (b) (1) (A). Since it has been found that
the evidence failed to establish discrimination against Dockendorf within the mean-
ing of Section 8 (a) (3) and 8 (b) (2), it follows that the conduct of the Respond-
ents cannot support a violation of Section 8 (a) (1) and 8 (b) (1) (A).
Based on the facts found above, it was not unlawful, upon the Company taking
over the ship's charter, for the Company to enter into a contract, which provided,
inter alia, for the Company to avail itself of the Union's hiring-hall facilities. Nor
was it unlawful for the Company to request the Union to refer a radio officer to
the ship on February 15 when the ship was chartered to the Company.37 Neither
was it unlawful, pursuant to that contract and request by the Company, for a radio
operator to be dispatched by the Union on February 18 when the ship arrived in
a' O'Rourke testified that even though Dockendorf had a "permanent" assignment on
the Western Ocean, it was terminated by a change in charter because this is considered
a "change in ownership" within the meaning of rule 12 of A. R. A. assignment rules
(General Counsel's Exhibit No. 7). See also Dockendorf's radiogram to his union
(General Counsel's Exhibit No. 4).
' Prior to the afternoon of February 19, the only one (other than his union), to whom
Dockendorf indicated that he wished to remain as radio officer aboard the SS. Western
Ocean was Captain Coppock. At that time, the ship was at sea and Captain Coppock
was in the employ of the General Steamship Corporation. Moreover, Coppock testified
that he did not convey this desire of Dockendorf to any company representative. There-
fore, Coppock's knowledge that Dockendorf was interested in retaining the radio officer's
position on the ship cannot, under these circumstances, be imputed to the Respondent
Company. Maxon Construction Company, Inc., 112 NLRB 444, 459.
3e Dockendorf did not make application to the S. U. P. for referral to the Company.
The only thing that Dockendorf did, in an attempt to be employed by the Company, was
to contact his own union representative, O'Rourke, and on the first occasion that O'Rourke
talked to Lundeberg, which was February 20, Roe had already been employed as radio
officer. The chance meeting between Dockendorf and Tennant in the captain's cabin on
the afternoon of February 19 Is not considered a premeditated application for employ-
ment to the Company as the record shows Dockendorf went there with neither the inten-
tion nor expectation of meeting a company representative.
S'' O'Rourke testified that a bareboat charterer (Company) "has the right to put on
crew members of the union with whom they have a contract." O'Rourke also testified
that the phrase "change ownership" in rule 12 of the A. R. A.'s National Assignment
Rules (General Counsel's Exhibit No. 7) encompasses and includes a ship which sails
under a bareboat charter. He also testified that when the Respondent Company chartered
the SS. Western Ocean, the radio officer's position was considered a "new job." See
-Maxon Construction, Company, Inc., 112 NLRB 444 at 451.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port preparatory to its departure 2 days later . Nor was it unlawful for the Company
to sign on Roe on the morning of February 19 as radio officer . To find, then, that
Dockendorf who had not registered with the Union nor made known to the Com-
pany his interest in the job until it was filled, converts the Company 's February
15 request and the Union 's February 18 referral of Roe as well as his hiring on
February 19 into an unfair labor practice-achieves-it would seem , a result a
reductio ad absurdum.
Moreover , Dockendorf had not listed himself on the rotary hiring registers of
either the S. U. P., R. O. U., or A. R. A. at any time subsequent to February 18,
when the SS. Western Ocean put into port , or prior to its departure on the evening
of February 20. Even assuming arguendo that Dockendorf had effectively applied
for the job on the afternoon of February 19 (which is contrary to the finding made
above), no authority has been cited by the General Counsel nor is the trier of these
facts aware of any case holding that an employer violates the Act , if he requests
a union , with whom he has a collective -bargaining contract , to refer a qualified
job applicant where a nonregistered applicant has indicated he is available for
the job. Furthermore, under the facts established in this proceeding, it was shown
that based upon the written requisition handed to Lundeberg by Tennant at their
meeting on February 15, the Union dispatched Roe, who reported aboard ship
on February 18 and was signed on by Tennant as radio officer on the morning
of February 19. All this was accomplished before Dockendorf made known to
the Company his interest in the job on the afternoon of February 19.
It is uncontradicted that Ellis, the Union's patrolman, had an argument with
Dockendorf with respect to Dockendorf having spoken in a derogatory manner
about the Union to some of the SS. Western Ocean's crew and that Ellis stated
no member of the S. U. P. would sail with Dockendorf again. However, there is
no substantial evidence in the record showing that this incident was the proximate
cause of Dockendorf not obtaining the radio officer's position. Nor is there
any substantial evidence , other than Dockendorf 's testimony , which is discussed,
infra, that the Union took any action to induce the Company not to hire Docken-
dorf. In order to conclude that this incident was the basis for Dockendorf not
being hired, it would be necessary to disregard not only the uncontraverted fact
that Dockendorf did not speak to Tennant about the job until after it was filled,
but also Captain Coppock's, Berg's, and Tennant's denials that Tennant ever told
Dockendorf that he was ineligible for the job because Ellis did not approve of him
being hired by the Company . To conclude that there is a causal link between the
Ellis incident and Dockendorf's charge, it would be necessary to base such a finding
on inferences and suspicions drawn from remote circumstances that are in direct
conflict with Tennant's credited testimony which is corroborated by Captain Coppock
and Berg.
It is also significant, in determining the reason for Dockendorf not obtaining the
job, that in his radiogram of February 13 to O'Rourke, he stated:
ANTICIPATE MY RELIEF WILL BE MEMBER S. U. P. OR R. O. U. HIRED
BY CHARTERER WILL FOLLOW YOUR ADVICE TO PROTECT MY AND
A. R. A. JOB (EMPHASIS SUPPLIED)
Dockendorf's testimony and his radiogram indicate that his alleged claim to the
radio officer's position and the subsequent filing of an unfair labor practice charge
by him was made with the implied recognition that when the Company chartered
the Western Ocean, the radio officer's berth was a "new assignment" to which, under
the circumstances , including the assignment regulations of his union , he was not
entitled. This admission that it was a "new assignment" is given tacit support by
Dockendorf subsequently agreeing to O'Rourke's suggestion that he relinquish any
rights he thought he had to the job. Furthermore, O'Rourke's radiogram to Docken-
dorf on February 15, which stated in part: "Have contacted Company Kaiser Gypsum
and they advise that crew being discharged," (emphasis sunolied) is corroborative of
the fact that Dockendorf had no priority to the radio officer's job as the position
was a "new assignment" now that the ship was to be chartered by the Company
because the entire crew , including Dockendorf , were to be discharged . In view of
the fact, therefore, that the Company had decided as early as February 15, when
it chartered the ship, to discharge the entire crew, it is found that was the reason for
the Company not retaining him and that Dockendorf's subsequent argument with
Ellis on February 18, was not the cause for him failing to obtain the radio officer's job.
Upon the record in this case, and without additional evidence, the trier of these
facts is unable to credit Dockendorf's story that Tennant told him on the afternoon
of February 19 that, "Ellis would not approve of the Company employing him."
It is true that Ellis was not kindly disposed toward Dockendorf on February 18,
KAISER GYPSUM COMPANY, INC . 1593
when he learned for the first time 38 that Dockendorf had deprecated the Union, but
this circumstance does not establish discrimination, where, as in this case, his failure
to obtain the job is reasonably explained for reasons, that have nothing to do with
discrimination.
Dockendorf's testimony that Tennant told him that Ellis did not approve of him
being :hired as radio operator must be evaluated in the light of the evidence in this
record, and by an analysis of the realities of the situation. Such evaluation leads
to the conclusion that Tennant's denial that he ever mentioned Ellis to Dockendorf,
which is corroborated by both Captain Coppock and Berg, is credited. It strains
one's credulity to believe that an industrial relations official, having the executive
responsibilities Tennant had, and evidently versed in labor relations, would be so
incredibly naive as to senselessly compromise his company by the admittedly damag-
ing statement to Dockendorf that his Company's hiring policies were being dictated
by a union patrolman, who held a minor position in the union hierarchy.39
No authority has been cited, nor has any case been found which supports the
apparent contention of the General Counsel that it is sufficient to prove discrimination
in this case by merely showing Ellis' animosity toward Dockendorf and from this
to infer that but for Ellis' argument with Dockendorf, the Company would have hired
him. This contention overlooks the fact that it was also incumbent on the General
Counsel to supply another vital link in his causal theory, namely: Dockendorf not
obtaining the job was the proximate result of Ellis' animosity toward him. To make
this finding upon the present state of the record would require a disregard of the
reasons cited above and an attenuated rationale based upon inference, surmise,
speculation, and conjecture. Such a finding of discrimination is neither permitted
by the Act in that the relationship of cause and effect, the essential feature of Section
8 (b) (2), does not exist, and also there is the absence of a preponderance of evi-
dence to show that Dockendorf's failure to obtain the job was discriminatorily
motivated.40
On the contrary, Dockendorf's failure to obtain the position of radio officer on
the SS. Western Ocean is reasonably explained for reasons that have nothing to do
with discrimination. When Dockendorf's failure to register for employment with
the S. U. P. or its radio operators affiliate, R. O. U., or even his own union is con-
sidered, in conjunction with him neglecting to properly apply to the Company for
the job, in addition to the admitted absence of an available job, as Roe was hired
on February 19, before Dockendorf spoke to Tennant in the captain's quarters, it
necessarily follows that the denial of employment was justified because there was
no vacancy available. It is found therefore, that Respondents did not unlawfully
discriminate against Dockendorf as of February 19.
The General Counsel contends, however, that when Roe asked to be replaced on
February 20, a few hours before the ship was scheduled to sail, that it was incumbent
on the Company, as they then knew of Dockendorf's interest in the radio officer's
position, to offer it to him and when Bay, a member of Dockendorf's union was
employed, this constituted unlawful discrimination. Of course, the Company knew
on February 20, when Roe asked to be replaced a few hours before the ship sailed,
that Dockendorf was available, but it is not believed that the Act in these circum-
stances, obliged either the Union or Company to seek out Dockendorf, a non-
registered applicant. Neither the law nor the critical circumstances which pertained
a few hours before the ship was scheduled to sail, as well as the industrial realities
of the maritime industry, could justify imposing on the Respondents the duty of
seeking out Dockendorf under penalty of violating the Act.
Indeed, if it had been insisted that Dockendorf had priority over Bay, who
was listed first on his union's register, it might appear, by parity of reasoning, that
the Union might be causing the Company to discriminate against a registered ap-
plicant, Bay, as distinguished from a nonregistered applicant, Dockendorf. More-
over, the fact that Bay, who belongs to the same union as Dockendorf, ultimately
obtained the radio officer's berth aboard the SS. Western Ocean, and remained
aboard the ship in that capacity for over a year, also militates against a finding of
unlawful discrimination.
Under all the circumstances, it is concluded there is not a preponderance of
evidence to establish that any action taken by the Respondent Company or the
Respondent Union with respect to filling the radio officer's berth aboard the SS.
Is The earliest that Ellis could have heard of Dockendorf's friction with certain mem-
bers of the SS. Western Ocean's crew was when the ship docked on February 1.8.
'9 It was stipulated that normally a patrolman has no authority to dispatch crew
applicants.
40 Section 10 (c) and 10 (e).
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Ocean on either February 19 or 20 or thereafter, reflects any unlawful
discrimination against Dockendorf, the Charging Party. Moreover, the evidence-
is found insufficient to establish that the Union ever discussed Dockendorf with the-
Company or that his argument with Ellis was made the basis for not hiring him in.
violation of Section 8 (a) (3) and 8 (a) (1). It is found, therefore, that the Union
did not violate Section 8 (b) (2) as it did not cause or attempt to cause-the Com-
pany.to discriminate against Dockendorf.41
Furthermore, there is no substantial evidence to refute Respondents' contention.
that their actions were in accord with, and protected by, the terms of the collective-
bargaining contract, and the Union's assignment rules and procedures which
implemented and supplemented the contract. Then too, what might be considered.
logical conclusions based upon abstract principles of law in their application to the
agreement between the Company and Union are rebutted by the concrete realities
of the maritime industry and the unique factual situation presented in this proceeding.
Not only was there complete agreement by Dockendorf to O'Rourke's suggestion:
that Bay, a member of their union, should have the radio officer's position aboard.
the SS. Western Ocean, but the record lacks evidence to show that any cognizable
legal rights of Dockendorf were breached. Moreover, it would seem questionable
policy, under the facts presented in this proceeding, for the trier of these facts to
be placed in the incongruous position of becoming the arbiter of proper observance
of intraunion procedure to decide who had the prior right to the radio officer's
job as between Bay and Dockendorf, both of whom are members of the same union.
This, in turn, raises the question whether, under such circumstances, Bay obtaining
the job tended "to encourage membership in the Union" within the meaning in-
tended by Section 8 (a) (3) of the Act.42
The Supreme Court has held that the evidence necessary to make a finding of an-
unfair labor practice must be substantial.43 Substantial evidence is such evidence
as affords a substantial basis of fact from which the fact in issue can be reasonably
inferred.44 Substantial evidence must be such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. Substantial evidence must
have rational probative force; it must carry conviction; it must be more than a
scintilla, and must do more than create a suspicion of the existence of the fact to
be established. And the test is not satisfied by evidence which gives equal support
to inconsistent in f erences.45
Judged by these tests and standards, it is concluded that there is not substantial
evidence that the Respondents violated the Act for the reasons hereinabove indicated.
Dockendorf not being assigned to the radio officer's position aboard the Western
Ocean does not necessarily mean that it was "caused" by the Union within the
meaning of Section 8 (b) (2). The burden of proving that the Union caused the-
Company not to employ Dockendorf must be satisfied before such a finding can
be made. In this case, it is found that the burden has not been satisfied, and that
the evidence does not show the Respondent actually caused Dockendorf not to
obtain the radio officer's job. The record is devoid of any evidence, other than
Dockendorf's discredited testimony, that the Respondent Union refused to approve-
Dockendorf's employment by the Company because of his argument with Ellis,
the Union's patrolman.
In view of the foregoing conclusions, including the decisive factor that Docken-
dorf could not be discriminated against because he did not effectively apply for-
employment, it is concluded that the evidence warrants no finding that the Re-
spondents committed unfair labor practices within the meaning of Section 8 (a)
(1), 8 (a) (3), 8 (b) (1) (A), and 8 (b) (2) of the Act, and it will therefore
be recommended that the complaint be dismissed in its entirety.46
41 Although Lundeberg told O'Rourke on February 20, that he would object to Docken-
dorf being the radio officer aboard the SS. Western Ocean, there is no evidence that this
was ever indicated to the Company prior to the time the ship sailed. See Harry Griffin
Trucking, 114 NLRB 1494.
42 See paragraph 9 of the complaint and Respondent Union's Exhibit No. 1.
43 N. L. R. B, v. Consolidated Edison Co. of New York, Inc., 305 U. S. 197, 229.
44 N. L. It. B. v. Columbian Enameling cC Stamping Co., Inc., 306 U. S. 292, 299.
45 Eastern Coal Corporation v. N. L. It. B., 176 F. 2d 131, 135, 136 (C. A. 4) ;
N. L. It. B. v. Stafford Operating Company, 206 F. 2d 19, 22, 23 (C. A. 8).
4e Based upon the rationale and findings made above in resolving the salient issues in
this proceeding it is unnecessary to decide the question on which ruling was reserved at
the hearing with respect to the admissibility of evidence alleged to show that the-
collective-bargaining agreement was executed on a date other than that shown in the
contract. See Associated Machines, Inc., 114 NLRB 390, and W. L. Mead, Inc., 113-.
WEST VIRGINIA PULP AND PAPER COMPANY 1595
CONCLUSIONS OF LAW
1. The Respondent Company is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. Sailors' Union of the Pacific is a labor organization within the meaning of
Section 2 (5) of the Act.
3. The allegations of the complaint that the Respondents have engaged in and
are engaged in unfair labor practices within the meaning of Section 8 (a) (1), 8
(a) (3), 8 (b) (1) (A), and 8 (b) (2) of the Act have not been sustained.
[Recommendations omitted from publication.]
NLRB 1040. Respondents contend in their briefs that the General Counsel's "theory
only slightly resembled the allegations made in the complaint," and "the facts, as they
developed at the hearing, do not at all sustain the allegations of the complaint." If by
this argument, Respondents contend that such variance is fatal, it is rejected. The aim
of pleadings should be to give reasonable notice of the pleader's case to his opponent.
N. L. R. B. v. Piqua -Munising TVood Products Co., 109 F. 2d 552 (C. A. 6). The test is
whether the variance does or does not mislead the adverse party. Murnane v. LeMesnager,
207 Cal. 485. Here, there is not a fatal variance, but rather a failure of proof. All
authorities cited by the General Counsel have been carefully considered and it is not
believed the holdings in those cases require a finding contrary to the conclusions reached
herein. However, the Trial Examiner finds no occasion for lengthening this Report by
citing, distinguishing, or discussing them, because it is believed that the controlling
reasons for this decision have been sufficiently discussed. Moreover, some of the General
Counsel's contentions are based, in part, on an interpretation of the facts which are not
shared by the trier of these facts. °
West Virginia Pulp and Paper Company and United Papermakers
and Paperworkers ,l AFL-CIO , Petitioner. Case No. 2-RC-8730.
October 11, 1957
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before John J. Carmody,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.2
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
Upon the entire record in this case, the Board funds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.'
I The name of the Petitioner appears as amended at the hearing.
2 Local 12915 of District 50, United Mine Workers of America, herein referred to
collectively as the Intervenor, and individually as Local 12915 and District 50, intervened
on the basis of their contractual interest in the employees involved herein.
3 The parties stipulated that the Petitioner and District 50, United Mine Workers, are
labor organizations within the meaning of the Act. The Petitioner refused to stipulate
that Local 12915 is a labor organization or an entity within the meaning of the Act at
the present time as it is defunct. For the reasons stated in paragraph 3, we find that
Local 12915 is not defunct. As it participated in negotiating and executing collective-
bargaining contracts with the Employer, and has administered these contracts, we find
Local 12915 is a labor organization within. the meaning of the Act.
118 NLRB No. 215.