Local 791

National Labor Relations Board - Board Decisions

Apr 9, 1956

115 N.L.R.B. 1004 (N.L.R.B. 1956)

1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER PETERSON, dissenting :
I would find appropriate a unit limited to drugstore clerks, ex-
cluding fountain employees, as sought by the Petitioner.
The exclusion of the fountain employees, it seems to me, is amply
supported by the facts. They are separately supervised, are engaged
in the preparation and serving of food, possess different skills and
training, and only infrequently interchange with the drugstore clerks.
Moreover, the Petitioner does not generally represent food and restau-
rant employees, and here seeks to honor the trade jurisdiction of the
Intervenor which is presently engaged in organizing the fountain
employees. Finally, there is here no history of bargaining contrary
to the unit sought.
The Petitioner is left with two choices if it desires to represent the
drugstore clerks and yet satisfy the majority's finding that only an
overall unit is appropriate in this case : Organize the fountain em-
ployees in competition with the Intervenor; or persuade the Inter-
venor to join with it in representing the overall group on a joint basis.
The first choice invites raiding and jurisdictional disputes; the sec-
ond exalts form over substance. Both deny immediate collective bar-
gaining to a separate and homogeneous group of about 1,100 employees
pending the uncertain time when some 900 others with different skills
and interests are more completely organized. In my view, the factors
relied upon by the majority in support of their finding that the only
appropriate unit is one which embraces both retail clerks and soda
fountain personnel are not so compelling as to require the Petitioner
to choose either of these courses or to warrant denying the clerks a
present opportunity to select a bargaining representative.
Local 791, International Longshoremen 's Association , Independ-
ent and John T. Marmion . Case No. t-CB-1478. April 9, 1956
DECISION AND ORDER
On December 29, 1955, Trial Examiner Arthur Leff issued his Inter-
mediate Report in this proceeding, finding that the Respondent had
engaged in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, John T. Marmion, the Charging Party, filed exceptions, with a
supporting brief, to the Intermediate Report with respect to the Trial
Examiner's finding that Marmion was not entitled to back-pay com-
pensation as a remedial matter for the loss of earnings which he. suf-
fered. No other exceptions were filed.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
115 NLRB No. 160.
LOCAL 791 1005
rulings are hereby affirmed. The Board'has considered the Intermedi-
ate Report, the exceptions and the brief, and the entire record in this
case, and hereby adopts thef finding of the Trial Examiner that Mar-
mion is not entitled to back-pay compensation.'
ORDER
Upon the entire record of this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Local 791, International
Longshoremen's Association, Independent, New York, New York, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Attempting to cause T. Hogan & Sons, Incorporated, its offi-
cers, agents, successors, or assigns, to refuse employment to any em-
ployee or prospective employee, or otherwise to discriminate against
any such employee or prospective employee, in violation of Section 8
(a) (3) of the Act, or, under color of any agreement requiring mem-
bership in a labor organization as a condition of employment as au-
thorized by Section 8 (a) (3) of the Act, from attempting to cause
said Company to discriminate against any employee or prospective
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 initiation fees uniformly required as a
condition of acquiring or retaining membership.
(b) In any like or other manner, restraining or coercing employees
or prospective employees of the said Company in the exercise of their
rights guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership
in a labor organization, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its offices and meeting halls copies of the notice at-
tached hereto marked "Appendix." 2 Copies of said notice, to be fur-
nished by the Regional Director for the Second Region, shall, after
being duly signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to its members are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
'As no exceptions were taken to the Trial Examiner 's other findings, conclusions, and
recommendations , we adopt them pro forma.
a In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words , "Pursuant to a Decision and Order ," the words
"'Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto marked "Appendix" for posting,
the Company willing, at Pier 59, North River, for sixty (60) consecu-
tive days, in places where notices to employees are customarily posted.
Copies of said notice, to be furnished by the Regional Director for the
Second Region, shall, after being duly signed by the Respondent's
representative, be forthwith returned to the Regional Director for
such posting.
(c) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order what steps
the Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 791, INTERNATIONAL LONGSHORE-
MEN'S ASSOCIATION, INDEPENDENT, AND TO ALL "EMPLOYEES OF T.
HOGAN & SONS, INCORPORATED
Pursuant to a Decision and Order of the National Labor Relations
.Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify you that :
WE WILL NOT attempt to cause T. Hogan & Sons, Incorporated,
to refuse employment to any employee or prospective employee,
or otherwise to discriminate against any such employee or pro-
spective employee, in violation of Section 8 (a) (3), or, under
color of any agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized by Section 8
(a) (3) of the Act, attempt to cause said Company to discrimi-
nate against any employee or prospective 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 initiation fees uniformly required as a condi-
tion of acquiring or retaining membership.
WE WILL NOT in any like or other manner restrain or coerce em-
ployees or prospective employees of T. Hogan & Sons, Incorpo-
rated, in the exercise of their rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment as authorized by Section 8 (a) (3) of the
Act.
LOCAL 791, INTERNATIONAL LONGSHORE-
MEN'S ASSOCIATION, INDEPENDENT,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
LOCAL 791 1007
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by John T. Marmion, the General Counsel of the National
Labor Relations-Board-, by. the. Regional Director for the Second Region (New
York City) issued a complaint, dated July 7, 1955, against Local 791, Interna-
tional Longshoremen's Association, Independent (T. Hogan & Sons, Incorporated),
herein called Respondent Union, alleging in substance that the Respondent had
engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and
(b) (2) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136,
herein called the Act. More specifically, the complaint alleged that since on or
about March 28, 1955, the Respondent prevented Marmion from reporting for work
and caused and/or attempted to cause Marmion's employer, T. Hogan & Sons, In-
corporated, to refuse to continue Marmion in its employ, for the reason that
Marmion was an adherent and supporter of a rival union affiliated with the AFL.
The Respondent filed an answer denying the commission of the unfair labor practices
alleged. Pursuant to notice a hearing was held on November 21 and 22, 1955,
before Arthur Leff, the Trial Examiner duly designated by the Chief Trial Examiner.
All parties were represented by counsel and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing on
the issues. Opportunity was afforded all parties to argue orally upon the record and
to file briefs and proposed findings and conclusions.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. COMMERCE; THE BUSINESS OF THE COMPANY
T. Hogan & Sons, Incorporated, herein called Hogan, a New York corporation
with its office and principal place of business in New York City, is engaged in the
business of loading and unloading ship cargo at various piers in New York City.
Hogan's annual revenue from stevedoring operations rendered to vessels engaged in
interstate and foreign commerce exceeds $5,000,000. Moreover, Hogan is a member
of the New York Shipping Association, an employer association which represents
its members in collective bargaining relations with labor organizations in a multiple
employer unit including the employees of Hogan. The members of the Association
annually ship cargo of a value exceeding $4,000,000 from the Port of New York
to destinations in States other than New York and New Jersey and to foreign ports.
It is not disputed that Hogan is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
Local 791, International Longshoremen 's Association, Independent , the Respondent
herein , and International Brotherhood of Longshoremen, AFL, herein called the
AFL, are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
For the past 16 years, broken only by the period when he was in military service,
John T. Marmion has worked as a member of a steady longshore gang at Pier 59,
North River, where Hogan performs stevedoring services. Marmion joined the
Respondent Local in 1939, and maintained his good standing membership in that
labor organization until the latter part of 1953, when he discontinued further payment
of his dues. During the bitter representation contest between the Union now known
as International Brotherhood of Longshoremen, AFL, and International Longshore-
men's Association, Independent, which followed the latter's expulsion from the
American Federation of Labor, Marmion was an active supporter of the IBL-AFL,
serving as shop steward for that union at his place of employment. ' Marmion's
AFL activity was well known to William P. Lynch, the secretary-treasurer of the
Respondent Local within whose territorial jurisdiction Pier 59 is contained, as well
as to the membership of that Local. As a result of that activity, as well as because
of his dues delinquency, the Respondent expelled Marmion from membership and
also placed him on a blacklist barring him from future membership in the Local.
i For a history of the proceedings before the Board in the representation contest, ending
with the Board's certification of the ILA-Independent yin Cases Nos 2-RC-6282,
2-RM-556 and 2-RC-6392, see New York Shipping Association, 107 NLRB 367, and 108
NLRB 135. See also New York Shipping Association (Case No. 2-CA-3466), 112 NLRB
1027.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, until the incidents beginning on March 28, 1955, to which the complaint
in this case is particularly addressed, the Respondent attempted no reprisal against
Marmion affecting his employment by Hogan.
Prior to the incidents in issue, the ILA has succeeded in its representation con-
test with the IBL-AFL. On August 27, 1954, the Board certified the ILA as the
exclusive representative of longshore employees of members of the New York Ship-
ping Association, including Hogan. 'Thereafter, the ILA entered into contract ne-
gotiations with the Shipping Association. The basic terms of the contract were
settled by the negotiators on Thanksgiving Day 1954, but final consummation of
the agreement was withheld pending clarification of certain details and ratification by
both the Union and Association memberships. Among other things, the tentative
agreement as publicly announced called for a retroactive wage increase and a union-
shop provision requiring membership in the ILA as a condition of employment on or
after 30 days following the beginning of employment or the effective date of the
agreement, whichever was later. The wage increase provided for by the tentative
agreement was actually put into effect on January 5, 1955, and retroactive wages were
paid employees on January 21, 1955. However, the agreement in final form was not
formally executed and did not become effective until February 24, 1955. The 30-day
grace period for employees to become union members under the union-shop pro-
vision thus expired on March 26, 1955.
Shortly after the wage increase was put into effect , Marmion , believing that the
30-day period had already begun to run, took steps to protect himself against job
forfeiture under the union-shop provision that had publicly been announced as one
of the agreed-upon employment conditions. On January 21, 1955, Marmion ob-
tained a postal money order in the sum of $54 payable to the Respondent. He sent
it by registered mail addressed to the Respondent, together with a letter, on a
mimeographed form apparently prepared by the AFL, explaining that he was tender-
ing the amount of the money order to cover his arrears in ILA dues since his last
payment, along with current dues for the quarter ending March 31, 1955.2 The
envelope containing Marmion's letter and money order was subsequently returned
to him, marked "undeliverable." 3 Upon the return of his registered letter, Marmion
notified the Respondent by ordinary mail of his unsuccessful proffer of dues, stat-
ing-on a mimeographed form also evidently prepared by the AFL-that he was
submitting this information as "evidence of my compliance with the National Labor
Relations Board 's certification of the I . L. A. (Ind.) as my bargaining agent and
the Union Shop Contract requirements ." At the same time, Marmion -sent an
identical notice by registered mail to Hogan , the New York Shipping Association,
the Board, and the New York Waterfront Commission. Thereafter Marmion made
no further effort to tender the amount of his delinquent dues to the Respondent-at
least not until March 29 , 1955 , under the circumstances to be related below. There
is evidence reflecting that Marmion had reason to believe that any such further
effort would have been futile. Thus, it appears from the testimony of his brother,
Raymond, that abolit a week after John Marmion attempted his tender by registered
mail, on January 28, 1955, to be exact, Raymond Marmion, along with a number
of other former AFL adherents in the same position, visited the Respondent's office,
spoke personally to Secretary-Treasurer Lynch, and tendered Lynch the amount of
dues in which they were in arrears plus their current dues, but were told by Lynch
that he could not accept their money at that time .4 That visit and the results of it
were reported to John Marmion.
The events with which this complaint is immediately concerned began on March
28, 1955-32 days after the actual effective date of the contract containing the
union-shop provision. When John Marmion reported at Pier 59 for the shapeup
that morning, he found Lynch in front of the entrance gate. The number one gang
was called first as usual, and the members of that gang passed through the gate with-
2 Marmion, according to his credited testimony, had never been formally notified of his
expulsion from the Respondent Local. The amount tendered was in any event more than
sufficient to cover initiation fees plus current dues.
8 The markings on the envelope, coupled with the post office records, establish that : The
-letter was brought by the postman to the address to which it was directed ; no one was
present at the time who was authorized to sign a receipt for it, the letter was then re-
turned to the post office; thereafter the post office sent two notices to the Respondent ad-
vising it that the letter was being held at the local post office, and after the lapse of more
than 10 days during which the letter remained unclaiiued, it was returned to the sender.
4 After this personal visit, Raymond Marmion also sent the Respondent, by registered
mail, a money order together with a letter of tender on the same mimeographed form, but
his registered letter was likewise returned by the post office as "undeliverable."
LOCAL 791 1009
-
,out interference by Lynch. None of the members of that gang, numbering 22, was
asked to exhibit his union book, although the record reflects that some of them at
least were then delinquent in the payment of current dues. The number two gang,
of which Marmion was a member, was next called. As the members of that gang
began passing through the entrance gate, Lynch stopped Marmion and asked to see
his union book. Marmion exhibited to Lynch his old Local 791 book which showed
on its face that he had not kept up with his dues payments since the last quarter of
1953. Lynch told Marmion that if Marmion went to work that day he would "pull"
the other longshoremen off the pier. Lynch's threat to Marmion was made outside
the hearing of any management representative of Hogan. Marmion was the only
longshoreman whose book Lynch asked to see that day, although it appears that
there were others, such as Marmion's brother, Raymond, who were equally far be-
hind in their dues payments. Following Lynch's statement to him that the men
would be pulled if he went to work, Marmion reported to Nick Atonic, Hogan's
head foreman at the pier, what had occurred. He asked Atonic what he should do.
Atonic's response was noncommittal. He simply stated "I don't know. What can I
tell you, what can I say?" Marmion made no further effort to go to work that day.
Instead, he went to the Waterfront Commission and to the Regional Office of the
Board to report the incident. At the Board's office, he filed a charge against the
Respondent, alleging that the Respondent had violated Section 8 (b) (1) (A) and
(2) of the Act by preventing him from going to work.
The next morning, March 29, Marmion again reported for the shapeup at Pier 59,
and again found Lynch present at the entrance gate. Also present this time was
Andrew P. Warwick, Hogan's president, who had been alerted to possible trouble by
the incident of the day before. At the shapeup, Lynch called for a book check.
As the number one gang, the first to be called, passed through the gate, its members
showed Lynch their union books. None in this gang was stopped. When the
number two gang was next called, Marmion was the first to enter. At Lynch's re-
quest Marmion showed his union book, as he had done the day before. But in
addition this time he also tendered to Lynch the postal money order for $54 which
he had mailed to the Respondent in January and which had been returned by the
post office as "undeliverable." Lynch rejected the tender with the declaration that
Marmion's book was no good. Ignoring Lynch, Marmion nevertheless proceeded
on to the pier to Hogan's timekeeper who checked him in. Lynch declared in a
loud voice that unless Marmion (to whom he referred by a foul name) was removed
from the pier, the other longshoremen would not work. Lynch and Warwick then
entered into a heated argument in the presence of the other longshoremen, in the
course of which Lynch warned Warwick that the men would not work with
Marmion , and Warwick asserted that the matter was one that should be adjusted
legally, not at the pier head. None of the longshoremen at the shapeup followed
Marmion to the pier, and those already on the pier left. After it became evident
that the others would not work, Warwick advised Marmion that he could not use him
alone and that he would therefore have to remove his name from the payroll for
that day. No work was performed on Pier 59 that day.
On March 30, the situation remained unchanged. Marmion reported at the
morning shapeup ready for work but, though a shape was conducted that morning,
the other longshoremen did not go on the pier. Again no work was performed that
day though there was work to be done.
Later on March 30, a conference was held at the Board' s Regional Office,. attended
by representatives of Marmion, the Respondent, and Hogan. A verbal agreement
was reached under which Marmion was to be permitted to obtain a book in an ILA
local other than the Respondent, the Respondent was to withdraw its objection to
Marmion working on the pier, and the striking longshoremen were to return to
work. That arrangement so far as appears, did not include the withdrawal of
Marmion's unfair labor practice charge. Marmion later accepted membership in
another ILA local. On March 31, 1955, the longshoremen at Pier 59 returned to
work. Marmion also worked that day. And he has since continued to be regularly
employed at Pier 59 without objection from the Respondent.
Lynch, while testifying, candidly conceded that Marmion would not have been
singled out for special attention on March 28, and again on March 29, had he
merely been delinquent in the payment of his dues. Lynch's testimony reflects
that other longshoremen besides Marmion were also then behind in their dues.
Marmion, however, had earlier been expelled from the Respondent Local and
had, been placed upon a Local blacklist, not only because he had failed to pay
dues since the last quarter of 1953, but also because of his pronounced interim
activities on behalf of the AFL. Marmion, according to Lynch; was 1 of 3 on
390609-56-vol . 115-65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Local's blacklist whom the Local's membership had determined not to readmit
under any circumstances, and to whom membership in the Local was therefore not
available. The immediate factor that precipitated his action against Marmion-
Lynch testified further-was that the Local membership had complained to him
that Marmion was running down the ILA and had insisted that he do something
to prevent Marmion's continued employment at the pier.
The Respondent seeks to defend its conduct complained of in this proceeding
upon the ground that such conduct was justified by Marmion's failure to comply
with the provisions of the admittedly valid union-shop provision in the contract
between the ILA and the New York Shipping- Association. On the particular facts
of this case there is obviously no merit to that defense. To begin with, Lynch's
testimony makes clear that in Marmion's case membership in the ILA, which was
a contractual condition of employment, "was not available to him on the same
[nondiscriminatory] terms and conditions generally applicable to other members."
In these circumstances, under the express terms of the statute, the Respondent was
not free to invoke against Marmion the provisions-of the union-shop agreement as a
condition of employment 5 Further, even if membership were available to Mar-
-mion, Marmion must be found to have satisfied his obligation under the union-shop
agreement by his tender to Lynch on March 29, 1955, of an amount more than
sufficient to meet the periodic dues for which he was liable under the contract,
plus initiation fees required as a condition for acquiring membership. Under the
rule enunciated in the Aluminum Workers case, 112 NLRB 619, it does not matter
that Marmion, prior to the tender, may have already fallen in default under the
union-shop covenant. By making his tender before the Respondent made its demand
upon Hogan and instigated strike action directed at Marmion's removal from the
job, Marmion sufficiently cured his default and thereby effectively foreclosed the
Respondent from lawfully taking the action he did. Finally, and other considerations
aside, it is clear from Lynch's testimony alone that Respondent's underlying reason
for singling out Marmion for reprisal action was not that he had failed to pay
periodic dues or initiation fees uniformly required-the Respondent attempted no
similar action against others who were similarly in default-but because Marmion
had incurred the wrath of the Local's membership and had been placed upon a
special blacklist as a result of activities in which he had engaged, or was believed
to have engaged, in opposition to the Respondent. The principle is by now well
established that a union may not-any more than an employer-assign an otherwise
lawful reason as a pretext to justify discrimination in fact based upon unlawful con-
sideration. Victor Metal Products Corporation, 106 NLRB 1361; Special Machine
and Engineering Company, 109 NLRB 838; N. 'L. R. B. v. Local 169, Teamsters,
228 F. 2d 425 (C. A. 3, decided December 9, 1955). The facts in this case fully
justify the conclusion that the Respondent's strike action aimed at Marmion's re-
moval was actually motivated by a reason other than Marmion's failure to meet his
monetary obligations under the union-shop contracts
There is likewise no merit to the Respondent's added defense that a binding
settlement of the unfair labor practices was effected at the meeting at the Board's
office on March 30, 1955, at which the Respondent agreed to withdraw its objec-
G The Respondent appears to argue that though membership was not available to Mar-
mion in the Respondent Local, it might have been possible nevertheless for Marmion to gain
admission in one of the other ILA affiliated locals, membership in any one of which would
have satisfied his obligation of ILA membership under the union-shop provision. I find
no substance to that argument The Respondent Local was the ILA local with territorial
jurisdiction in the area N t was the one to which he had previously belonged, and the one in
which he should presumptively at least have sought to reestablish his good-standing mem-
bership. Moreover, and more important, the record facts establish clearly enough that the
conduct complained of stemmed directly from the fact that Marmion because of his AFL
activities had rendered himself persona non grata to the Respondent Local's membership,
which for that reason, not only blacklisted him from future membership in the Local,
but went further to insist that action be taken against him by the Local to bring about
an impairment of his job status.. '
9 As the reasons set out above are more than sufficient to defeat the Respondent' s union-
shop defense , it is unnecessary to consider additional contentions urged by the General
Counsel, such as the contention that the Respondent's conduct was unlawful at any rate
because it was predicated in part upon Marinion's failure to pay dues that accrued before
the effective date of the contract, and the further contention that Marmion was relieved of
his failure earlier to tender dues because the Respondent by its previous conduct had dis-
closed that any such tender on his part would have proved futile.
LOCAL 791 1011
tions to Marmion's continued employment by Hogan, and Marmion, through his
representative, agreed to seek membership in another local of the ILA. Sb far as
this record shows, the discussions at that time looked toward the settlement of the
then pending strike, not the settlement of the unfair labor practice charge. There is
no evidence that Marmion agreed to the withdrawal 'of his charge, let alone that the
Board, which was not a party to the settlement, consented to it. As the Board did
not participate in any agreement to waive the previously filed unfair labor practice
charge, it is, by long established precedent, not precluded from determining in its
own discretion whether under the circumstances of this case, it would effectuate
the purposes and policies of this Act to give effect to a waiver or settlement of the
unfair labor practice charge-even if an agreement for such a waiver or settlement
on Marmion's part might otherwise be inferred. See National Biscuit Company,
83 NLRB 79, 80, and cases there cited. It is found on the facts of this case that
it would not effectuate the purposes and policies of the Act to dismiss the complaint
by reason of the private agreement made on March 30, 1955.
On all the record, it is concluded and found that, by its demand upon Hogan
to refuse to hire or continue Marmion in its employ, made on March 29, 1955,
and by the strike action engaged in on March 29 and 30, 1955, in support of
that demand, the Respondent attempted to cause Hogan to discriminate against
Marmiori in violation of Section 8 (a) (3), and thereby engaged in-unfair labor
practices within the meaning of Section 8 (b) (2).7 Such conduct, it is found,
also constituted a violation of Section .8 (b) (1) (A), in that it operated to restrain
and coerce employees in the exercise of rights protected by Section 7 of the Act.
A further violation of Section 8 (b) (1) (A) is found in Lynch's threat to Marmion
in the presence of other employees on March 28, 1955, to "pull" other longshore-
men off the pier if Marmion went to work that day. As found above, that threat,
like the action taken the following day, was actually rooted, not in Marmion's
nonpayment of dues, but in the Respondent's antagonism toward Marmion for
having engaged in activities in opposition to the Respondent. As Marmion's activi-
ties were protected under Section 7 of the Act, the Respondent's threat of reprisal on
March 28 was no less violative of Section 8 (b) (1) (A) thanwas the act of reprisal
that was taken against him the following day.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that the Respondent cease and desist therefrom,
and take certain affirmative action to effectuate the policies of the Act.
It has been found that the Respondent violated Section 8 (b) (1) (A) on March
28, 1955, by its threat to bar Marmion from work, and, on March 29 and 30,
1955, violated Section 8 (b) (2), as well as Section 8 (b) (1) (A), by attempt-
ing to cause Hogan to discriminate against Marmion. It has also been found that
as Hogan did not capitulate to the Respondent's pressure, Hogan was not actually
caused to discriminate against Marmion. However, as a result of the Respondent's
activities, Marmion lost 3 days' work, on March 28, because he made no attempt to
go to work that day following the threat, and on March 29 and 30, because on those
days there was no work available for him after the Respondent had closed down
the pier operations by its strike aimed, unsuccessfully, at forcing employer dis-
crimination. The question arises whether in these circumstances Marmion is en-
titled as a remedial matter to back-pay compensation for the loss of earnings he
suffered . On the basis of established Board authority, I find that he is not. Early
in the administration of the Taft-Hartley Act, the Board ruled in the Colonial Hard-
wood cases that it was without power under the Act to order back pay to remedy
7 The General Counsel concedes that there was no violation of Section -8 (b) (2) on
March 28, 1955, because, although a threat not to work with Marmion was voiced by Lynch
to Marmion that day, no demand or threat was communicated by any representative of the
Respondent to any representative of Hogan.
8 United Furniture Workers of America CIO (Colonial Hardwood Flooring Company,
Inc.), ,84 NLRB 563.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices of a labor organization , except "where [the labor organiza-
tion] is responsible for unlawful discrimination against an employee ." The Board
has not since deviated from the Colonial Hardwood rule,9 which in the meantime
has gained judicial approval . 1° Indeed , the Board has had occasion to apply the
Colonial Hardwood doctrine to a factual situation precisely like the one at bar, where
a union struck an employer in an attempt to cause employer discrimination, and
the employees who were the objects of the attempted discrimination suffered a loss
of earnings , not as a result of actual discrimination , but because the strike deprived
them of an opportunity to work . See United Electrical , Radio and Machine Workers
(Gardner Electric Manufacturing Company ), 95 NLRB 391. So, too , in the instant
case , it is found that, as Marmion 's loss of earnings was not attributable to any
applied discrimination with regard to his hire and tenure of employment , he may not
have a back-pay award.
Upon the basis of the foregoing findings of fact , and upon the entire record in
this case , I make the following:
CONCLUSIONS OF LAW
1. Local 791, International Longshoremen 's Association , Independent , and the
International Brotherhood of Longshoremen , AFL, each is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By attempting to cause T. Hogan & Sons , Incorporated , to discriminate against
John T. Marmion within the meaning of Section 8 (a) (3) of the Act, the Re-
spondent has engaged in unfair labor practices within the meaning -of Section
8 (b) (2) of the Act.
3. By such conduct, and by threatening to take measures to bar Marmion from
employment because he had engaged in activities protected by Section 7 of the Act,
the Respondent restrained and coerced employees in the exercise of rights guaranteed
in Section 7 of the Act, and thereby has engaged in unfair labor practices within
the meaning of Section 8 (b) (1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
- 9 The Pacifto Coast Marine Firemen case, 107 NLRB 593, relied upon by the General
Counsel, does not, as I read it, depart from Colonial Hardwood . In that case the union
had an exclusive hiring hall agreement with the employers , under which the employers
agreed to secure all personnel through the offices of the union , and the union agreed to
operate its hiring hall facilities without discrimination . The union nevertheless discrimi-
nated in favor of union members against certain nonmembers . This was alleged in the com-
plaint as a violation of Sections 8 (b) (1) (A ) and 8 ( b) (2) on the part of the union
respondent. The trial examiner found the 8 (b) (1) (A ) but dismissed the 8 ( b) (2)..
The Board did not pass on the merits of the 8 ( b) (2) dismissal because no exceptions were
taken thereto , but did predicate its 8 ( b) (1) (A) conclusion upon a finding of actual dis-
crimination. The back pay order in that case provided a remedy for the discrimination
which it was found had actually occurred as a result of the union's unlawful practices
under the hiring agreement , an agreement which had placed the union in a position itself
to accomplish such discrimination by virtue of the broad hiring authority that had been
, delegated ( to it by the employers.
10 Progressive Mine Workers v. N. L. It. B., 187 F. 2d 298 , 306, 307 (C A. 7).
S. G. Adams Company and District #9, International Associa-
tion of Machinists, AFL-CIO, Petitioner . Cases Nos. 14-RC-2919
and 14-RC-g3922. April 9,1956
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before William F.
115 NLRB No. 159. -