Local 791

National Labor Relations Board - Board Decisions

Nov 30, 1956

116 N.L.R.B. 1652 (N.L.R.B. 1956)

1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its customers. We find no merit in this contention. The mere fact
that an employee may be in a position to injure, the Employer's busi-
ness through his possession of trade or other secrets does not make
him a confidential or management employee.-' As it is well estab-
lished that these employees perform routine technical duties we find
they are nonmanagerial technical employees who may be included
in the unit hereinafter found appropriate.'
We find that the following employees at the Employer's Youngs-
town, Ohio, plant, including office clerical employees, warehouse em-
ployees, the assistant chemists, but excluding the confidential secretary
to the plant superintendent, professional employees, guards, watch-
men,5 and all supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9` (b) of the Act.
[Text of Direction of Election omitted from publication.]
3 See Republic Steel Corporation, supra.
4 The Board will not , ordinarily , include technical employees in the same unit with
production and maintenance or clerical employees , where objection is raised to their in-
clusion by any of the parties. However, as the Employer does not object to the inclusion
of the chemists on the ground of their technical duties and as we find they are not mana-
gerial employees, we include them in the unit herein found appropriate.
e There are 4 watchmen who make regular rounds on a 24-hour basis , punching A. D. T.
clocks which are located throughout the plant . These watchmen also answer telephone
calls, furnish materials from the storeroom , and assist in loading barges. As the evidence
shows that these men are regularly engaged in protecting the Employer's property, we
find -they are guards , and excluded from the unit . There is one man who is hired as an
extra watchman and also to assist in loading barges when the need for an extra man re-
quires his services. He is engaged in full time work as a fireman for the city. As the
evidence shows that he acts as a watchman only sporadically, we find he is not a guard
and include him in the unit.
Local 791, International Longshoremen 's Association, Independ-
ent [T. Hogan & Sons, Incorporated] and William H. Reilly.
Case No. 2-CB-1647. November 30, 1956
DECISION AND ORDER
On June 29, 1956, Trial Examiner James A. Corcoran issued his
Intermediate 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, the General Counsel filed exceptions, with a supporting brief, to
the Intermediate Report with respect to the scope of the Trial Ex-
aminer's recommended cease and desist order. No other exceptions
were timely filed.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
116 NLRB No. 243.
LOCAL 791 1653
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations with the following modifications of his cease and
desist order.'
The General Counsel excepts to the Trial Examiner's failure to
recommend a broader cease and desist order coextensive with Respond-
ent Local 791's territorial jurisdiction and covering employees not
only of the Company (T. Hogan & Sons, Incorporated) but also of any
other employer within its jurisdiction. We find merit to this exception.
As detailed in the Intermediate Report, the Company, a member of the
New York Shipping Association, was engaged in stevedore operations
at the Chelsea district piers of New York City where approximately
1,000 of Local 791's 1,300 members were employed. Local 791 has
general jurisdiction over longshore work on the piers and represented
all longshore workers employed thereon, whether or not members of
Local 791. It admittedly "didn't want anybody working regularly on
the Chelsea piers who didn't have a book" and it made an all-out effort
to enforce the union-security provision of the contract with the New
York Shipping Association covering all longshore work in the New
York harbor area. As found herein, Local 791 caused the Company
to discriminatorily refuse employment to the Charging Party who had
been expelled from membership for dual unionism and who, with ap-
proximately 40 other members, had been placed on a "black ball list"
barring them from future membership in that local. In addition,
Local 791 had recently been found to have violated the Act by attempt-
ing to cause the Company to discriminatorily refuse employment to
another employee under, similar circumstances.' It thus appears that
Local 791's unlawful conduct is part of a pattern of retaliatory action
taken against dissident members employed at the Chelsea district piers,
and that there is a great likelihood that similar unfair labor prac-
tices may recur not only with respect to employees of the Company,
but also with respect to employees of other employer-members of the
New York Shipping Association operating on piers within Local 791's
territorial jurisdiction 3 Because we believe that to effectuate the
purposes of the Act it is necessary here to issue a remedial order which
is coextensive with the future violations which are to be reasonably
anticipated, we shall .issue a cease and desist order enjoining Re-
spondent Local 791 from committing this and similar violations against
employees of the Company and of any other employer within Local
791's jurisdiction.4
'As no exceptions weie timely filed to the Trial Examiner's other findings, conclusions,
and recommendations, we adopt them pro forma
2 T Hogan & Sons, Incorporated, 115 NLRB 1004
3 DePrizio Const, action Company, 110 NLRB 287, 289-290.
6 N. L. B. B. v. Express Publishing Company, 312 U S. 426, Rhode Island Covering Com-
pany, 114 NLRB 1526; Frank P. Hake, 112 NLRB 1097, DePrizwo Construction Company,
supra; Lykes Brothers Steamship Company, 102 NLRB 720, enfd. 212 F 2d 846 (C A 5)
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in 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 or causing T. Hogan & Sons, Incorporated,
or any other employer within the jurisdiction of Local 791, their 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, attempting to cause or caus-
ing said Company, or any other employer within the jurisdiction of
Respondent Local 791, to discriminate against any employee or pro-
spective employee with respect to whom membership in such organiza-
tion has been denied or terminated on some ground other than his
failure to tender the periodic dues and initiation fees uniformly re-
quired 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, or any other employer
within the jurisdiction of Respondent Local 791, 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 member-
ship 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) Make whole William H. Reilly for any loss of pay he may have
suffered by reason of the discrimination against him, in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Post at its offices and meeting halls copies of the notice attached
hereto marked "Appendix." 5 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 posted by the Re-
spondent immediately upon receipt thereof and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places, including
all places where notices to its members are customarily posted. Rea-
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."
LOCAL 791 1655
sonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) 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 61, 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.
(d) 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.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
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 National Labor Re-
lations Act, we hereby notify you that :
WE WILL NOT cause or attempt to cause T. Hogan & Sons, Incor-
porated, or any other employer within the jurisdiction of Local
791, to refuse employment to any employee or prospective em-
ployee, or otherwise to discriminate against any such employee
or prospective employee, in violation of Section 8 (a) (3), or,
under color of any agreement requiring membership in a labor
organization as a condition of employment as authorized by Sec-
tion 8 (a) (3) of the Act, attempt to cause or cause said Company,
or any other employer within the jurisdiction of Local 791, to dis-
criminate 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
employees or prospective employees of T. Hogan & Sons, Incor-
porated, or any other employer within the jurisdiction of Local
791, 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-
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dition of employment as authorized by Section 8 (a) (3) of the
Act.
WE WILL make whole William H. Reilly for any loss of earnings
suffered as a consequence of the discrimination against him.
LOCAL 791, INTERNATIONAL LONGSHORE-
MEN7 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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been filed by William H . Reilly , an individual , hereinafter re-
ferred to as Reilly or chargee, against Local 791 , International Longshoremen's Asso-
ciation , Independent , hereinafter called the Union or Respondent , the General Counsel
of the National Labor Relations Board ,' on March 28 , 1956 , by the Regional Di-
rector for the Second Region , issued and served upon the Respondent a complaint
together with notice of hearing thereon . The complaint alleged that the Respondent
had engaged in unfair labor practices affecting commerce within the meaning of
Section 8 ( b) (1) (A) and 8 ( b) (2), and of Section 2 (6) and ( 7) of the National
Labor Relations Act, 61 Stat . 136, as amended , herein called the Act.2
With respect to the unfair labor practices , the complaint alleged in material sub-
stance that the Respondent ( 1) on or about December 8, 1955 , and since , did re-
strain and coerce Reilly in the exercise of the rights guaranteed in Section 7 of the Act,
by preventing his continued employment with T. Hogan & Sons , Incorporated,3
in order to compel him to join a local of the ILA other than the Respondent Union,
after his continued membership in the Respondent Union had been denied or termi-
nated for his adherence to a competing AFL Union, in violation of Section 8 (b) (1)
(A) of the Act; and ( 2) since such above-named date also , the Respondent has
caused and/or attempted to cause the said Company to discriminate against Reilly in
regard to his hire or tenure of employment , or other terms and conditions of employ-
ment , because of his adherence to the AFL, or because he failed to join a local of
the ILA, after his continued membership in the Respondent Union had been termi-
nated and denied for his adherence to the AFL Union, thereby violating Section
8 (b) (2) of the Act. The Respondent in an answer served and filed denied
generally all material allegations of the complaint imputing to it the commission of
the unfair labor practices alleged.
Pursuant to notice , a hearing was held on April 30 and May 1, 1956, at New York,
New York, before James A. Corcoran, the Trial Examiner duly designated to hold
such hearing by the Chief Trial Examiner. All parties were represented and
participated in the hearing. Full opportunity to produce, to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues was afforded to
all parties. Before taking of any testimony and again at the close of presentation
of evidence by the General Counsel , a motion made by the Respondent to dismiss
the complaint was denied . On a similar motion made at the close of the case,
decision was reserved and is disposed of in this report. Opportunity was afforded
the parties to argue orally upon the record and also to file briefs and proposed
findings and conclusions, but briefs , proposed findings, and conclusions have not been
presented by any party.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
1 Referred to herein as the General Counsel and Board, respectively.
2 A companion unfair labor practice case against T Hogan & Sons , Incorporated, No.
2-CA-4670, was settled informally. No file was available on it,
3 Referred to herein as Hogan , Employer, or Company
LOCAL .7 9 1657-
FINDINGS OF FACT
1. COMMERCE; THE BUSINESS OF THE COMPANY
T. Hogan & Sons, Incorporated, a New York-corporation having its principal
office and place of business in New York City, is engaged in furnishing stevedoring
services to shipping companies at various piers in New York City. In the year prior
to the complaint , Hogan received revenues in excess of $5,000,000 from its business
operations in stevedoring services rendered to such shipping companies engaged in the
transportation of cargo and passengers in and out of New York harbor to points
in foreign countries and to States in the United States other than the States of New
York and New Jersey. In addition, 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 such Association annually ship cargo
and transport passengers from the port of New York (encompassing the States
of New York and New Jersey) to destinations in other States of the United States
and to foreign countries, with the value of the cargo shipped exceeding $4,000,000
for the year 1955. The parties hereto have stipulated on the record that Hogan
is engaged in commerce within the meaning of the Act, and I so find.
II. THE LABOR ORGANIZATION INVOLVED
Local 791, International Longshoremen 's Association , Independent , and the In-
ternational Brotherhood of Longshoremen, AFL-CIO, herein called the Brotherhood
or AFL, are labor organizations within the meaning of the Act.
HI. THE UNFAIR LABOR PRACTICES
Reilly had been employed in longshore work on piers in the so-called Chelsea dis-
trict and had been a member of the Respondent Union for about 10 years. He started
work for Hogan in 1951 on Pier 61, and had been and at the times stated herein
he was a regular and steady member , ( hold man ) in the number 3 hold gang.
These regular gangs shaped up daily on•the pier. The Respondent Union had general
jurisdiction over all longshoreman work on the Chelsea district piers, a restricted area
roughly running from 13th to 22d Streets in New York City (North River, Piers
53-62). About three-fourths of the estimated 1,300 members of the Respondent
Union were employed on such piers, with the balance of the membership being em-
ployed on other piers in the New York harbor area. The Respondent Union rep-
resented for collective-bargaining purposes all longshore workers employed on such
Chelsea district piers, regardless of the ILA local to which they belonged, but re-
ceived payment of dues only from its own members? In January 1953, Reilly had
made payment in advance to the Respondent of the full amount of his union dues for
that year. In October 1953, the then existing contract between the International Long-
shoremen's 'Association and the New York Shipping Association expired. The
internecine warfare between the unions for mastery. of control of waterfront work
followed , culminating in the termination as previously indicated . At a meeting of the
Respondent in October 1953, on the question raised of the Respondent affiliating with
the AFL, a "division of the house" vote resulted in an overwhelming majority
deciding to remain in the original ILA organization . Reilly was one of the dissidents
favoring the AFL affiliation . Following the vote, he joined the newly organized
AFL organization and became very active as a worker and propagandist for it and
paid dues to it. His activities as such were well known as appears from the testimony
of Lynch, secretary-treasurer of ' the Respondent (and also vice president of the
International), and also that of Carr, business agent. The parties stipulated on the
record that.the ILA, Independent, conducted a 29-day strike in March-April 1954.
Reilly as an AFL union member admittedly crossed picket lines set up by the ILA
(Independent) and worked during such strike. It was further stipulated that Reilly
* In 1953 the International Longshoremen's Association was expelled from the AFL, with
which it had been affiliated for many years. A new organization, the International Broth-
erhood of Longshoremen, AFL, was then instituted. Details of the long and bitter struggle
ensuing between these organizations need not be set forth here. The representation ques-
tion involved was finally determined after two Board elections by establishing on August
27, 1954, the International Longshoremen's Association, Independent, as the certified ex-
clusive bargaining representative of longshore employees of members of the New York Ship-
ping Association , including Hogan.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was expelled from the Respondent Union in July 1954 for dual unionism.5 Around
the same time, his name was also placed upon a "blacklist " barring him from future
membership in that local.
A new agreement between the certified International Longshoremen's Association,
Independent, and the New York Shipping Association statedly becoming effective Oc-
tober 1, 1954, and terminating on September 30, 1956, was executed on February 25,
1955. It contained a valid union-shop provision requiring membership in the ILA
as a condition of employment on or after 30 days following the beginning of em-
ployment, or 30 days after February 25, 1955, the executing date of the agreement,
whichever was later. Reilly alleges that learning from newspaper reports in January
1955, of the general requirements of the agreed upon but unexecuted agreement, he
went on an undesignated date in such month of January 1955 to the office of the
Respondent, and attempted to pay up his dues for the year 1954 and first quarter of
1955 in the Respondent Union, by tendering to one J. O'Connor, then business agent
of the Union, $45 in cash which he had in his hand.6 He alleges O'Connor refused
to accept it, informing him that "the membership won't allow me to take your dues"
and indicating to Reilly that his name appeared on a list he had of persons in such
situation. Reilly alleges that Carr (subsequent business agent) was present at such
time. The latter testified he did not recall such claimed incident of an offer of
dues by Reilly. Subsequently, Reilly allegedly secured a United States postal money
order in the same amount ($45) and allegedly mailed it on February 1, 1955, by
registered mail, return receipt requested, and with covering explanatory letter en-
closed, addressed to Lynch at the union office. The letter stated he was tendering the
amount of the money order to cover his arrears in ILA dues since his last payment
as well as current quarterly dues. The envelope of such mailing is in evidence, shows
that the delivery of the letter was refused at the office of Respondent on February 2,
1955. Reilly states he later secured a cash refund of the money order amount.
Shortly after the return of the registered letter addressed to an official of the
Respondent, Reilly sent the Respondent and the International Longshoremen's As-
sociation a letter by ordinary mail notifying them in such mimeographed form letter
of the steps he had taken previously by registered mail with postal money order of
$45 enclosed, in an effort to offer and make payment on his dues in the Respondent
Union, and also stating that he was submitting the information to show "evidence of
my compliance with the National Labor Relations Board's certification of the ILA
(Independent) as my bargaining agent and the Union Shop Contract requirements,"
and indicating his belief that future discrimination against him might be attempted. He
sent similar form letter notice by registered mail, return receipt requested, to Hogan,
New York Shipping Association, the Board, and the Waterfront Commission, and
the filed postal return receipts show delivery of the same on or about February 10,
1955. Reilly continuously worked for Hogan apparently without any incidents
developing regarding his union membership or affiliation until December 8, 1955,
when the occurrences forming the basis of this complaint arose. (They are dis-
cussed separately in this report.) Reilly did not work on December 8, 1955, and
filed his charge herein on that same date.?
A form letter dated December 5, 1955, signed by William V. Bradley, president of
the ILA, Independent, was sent to Reilly (and others working and not paying dues
to the Respondent Union) calling attention to the union-shop provision of the new
contract then in effect, and inviting him (them) to join any local of the International
which would accept him, and in the event his name had been removed from the
roster of any particular local, offering to assist him in joining another local in order
that he may enjoy full membership status with such local. Any bylaw of the
International constitution would be waived to assist him. It also pointed out that
failure of compliance would lead to legal methods to enforce the agreement with the
New York Shipping Association. It also assured him that in joining some other
local than formerly, no effort to discharge or discriminate against him in any way
S It has not been clearly established in this record that any formal notification of ex-
pulsion was sent to or received by Reilly. Lynch stated in his testimony that the fact
Reilly owed dues for more than 6 months also entered into the expulsion reason. He further
stated that actually there was no hard and fast rule applied regarding such dues de-
linquency, although the bylaws provided for automatic dropping in such circumstance
6 The rate of dues payment was $9 per quarter.
7 After some preliminary talk with Lynch on December 9, 1955, Reilly and all others
worked on such date. Reilly continued to work for Hogan, without any objection to his;
so doing being stated by the Respondent, until an unstated date in January 1956, when
he left the waterfront work to engage in self-employment in his own business in the con-
struction field on Long Island.
LOCAL 791 1659
would be made . The envelope produced by Reilly in which such letter was received
was postmarked December 12 , 1955. No evidence was presented to show Reilly had
any direct knowledge of this "amnesty" move of the International, prior to or at the
time of the incidents of December 8 and 9 , 1955 . Reilly testified he did not receive
the letter until after the incident of December 8. The postmark date on the enve-
lope supports such assertion.
Reilly shaped up as usual in his regular hold gang on December 8, 1955. On such
date Lynch and Carr were at the pier and undertook a union book check of the work-
ers. Reilly testified that on the number 1 and 2 gangs , Lynch looked at the books
of the men and asked several to stand aside , which they did. Reilly states Lynch did
not ask to see his book , but asked him to stand aside . Lynch however testified he
asked him if he had a book to which Reilly replied in the negative . Lynch also
claims he stated that he wanted to talk to Reilly and after that he could go to work.
There is some support for the allegation of wishing to talk to him in the testimony
of Reilly and Carr, but Reilly does not recall his saying or intimating regarding his
going to work thereafter, but admitting that although he did not hear it, Lynch may
have said it. Carr, who was standing close to Lynch, made no reference to it in
his testimony . Reilly maintains that he answered Lynch by saying that after he
checked in, "you can talk to me, all you want." Reilly then proceeded to the Hogan
timekeeper desk, followed by Lynch .8
Reilly put his work check on the desk of the timekeeper and demanded to be
checked in for work. It is conceded that it is necessary to be checked in by the
Hogan timekeeper in order to be hired for that day and to go to work. The time-
keepers (Considine and Sadousky) ignored his request, and did nothing. Kenny,
superintendent for Hogan and in direct charge of hiring and discharge , was also
present and likewise took no action. Reilly alleges Lynch told him "you are not
going to be checked in." Reilly allegedly asked who was going to stop him and
Lynch answered "I am." The timekeepers each testified that Lynch said "don't
check this man in" without any other remarks being made. Lynch admitted tell-
ing the timekeeper, "No, you don't check him in." Kenny testified that Lynch
told the timekeepers "not to check him in." 9 Reilly also alleges appealing to
Kenny to say whether or not he could check in, without getting any reply, al-
though he alleges Kenny did confer with Considine, without any reply or action
resulting. Reilly then told the employer representatives he wanted to be checked
in and allegedly Considine said, "I am not stopping you; he is," indicating Lynch.fo
Reilly made a second visit to the timekeeper desk about 5-10 minutes later, again
asking to be checked in, without any successful result. Timekeeper Sadousky testi-
fied that he already had been replaced on the job. Reilly then left the pier and on
the same day filed his charge with the Board.
On the following morning, December 9, 1955, Reilly again shaped up for work.
Lynch was present also. Reilly states that Lynch stopped him again and asked me
not to give him a hard time today, and that Lynch also told him to stand aside and
8 Although there was some testimony to the effect that Lynch then attempted to block
or bar his progress by an extended arm, I do not credit it as any defined or intended act of
Interference by Lynch.
9 Kenny also added to the declaration of Lynch "he didn't have a union book." Lynch
also claimed that he said, "I think I have a right under Taft Hartley law to stop a man from
working if he don't have a book " I do not credit either of these assertions, primarily
because I was not well impressed by the Kenny testimony on the whole, and there is
no other support for such testimony in the record. (In passing, the affidavit of Carr
contradicts his own testimony and that of all witnesses in these many particulars ) Like-
wise and for similar reason, I do not credit an assertion of Lynch that he told the time-
keeper "all I want to do is to talk to him anyway" as it has no other support in
the record. Considine said that based on his experience, if a union representative tells a
timekeeper "for dues not paid or something" a man is not to be checked in, such direction is
invariably followed. Kenny said in his experience, he had never seen anybody put out of
work for not having a book, that after standing aside and being talked to, they would go
to work. It is noted that in this instance the other men who complied with the request
to stand aside, were permitted to and did go to work that day.
10 It is. admitted a scuffle between Reilly and Lynch then occurred in which Reilly was al-
legedly floored by a punch from Lynch. The testimony of the participants as to the hap-
pening is as expected at direct variance . It is strange that with all the others present at
the timekeeper desk, and also allegedly the men of the five gangs called in who were stand-
ing around, no other testimony was presented bearing on the incident. The only one asked
about it was Carr who stated he did not see the altercation. I have no probative evidence
as a basis for making any finding in relation to it.
166Q DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"I'll tell you how to go about getting a book ." Reilly was apparently agreeable to the
suggestion and did so. Lynch reputedly again asked him at first if he had a book
to which Reilly, allegedly replied, "No." In view of the clear knowledge of Lynch
as to the position of the Union in expelling Reilly in July 1954, and, placing his
name upon ,a blacklist to bar any ,future membership in that local, and his addi-
tional knowledge of the rival union affiliations of Reilly, this alleged inquiry regard-
ing a book on each occasion seems clearly superfluous and indeed questionable. I
am therefore easily induced to credit the testimony of Reilly over that of Lynch
regarding this and other details. It is accepted, however, that on this second day,
Lynch did assure Reilly and the others he stopped that he was not trying to deprive
them of jobs and of his intention to personally aid them in getting a book in some
other local than 791.11 The offer of Lynch was not individually made to Reilly
but to the group. According to Reilly, Lynch made clear to them that it was the
action of the, membership of Local 791 which refused to permit them to pay dues.
Upon Lynch then giving an OK to the timekeeper, the workers who had stood
aside at his request, were checked in and all worked that day. In his talk, Lynch
gave the men 2 weeks to get a book in another union or be stopped from working.
No further proceedings occurred at the daily checkup and Reilly continued to work
regularly at the Hogan pier without any questioning or interruption until he em-
barked on his own business venture in January 1956.
I credit the testimony of Reilly as to his efforts to pay up arrears of dues in the
local in which he was a member for so many years, after the union recognition and
representation issue had been definitely determined and some specific terms of the
agreement with the employers had been made public. This includes the cash
proffer to O'Connor, and also the matter of attempted payment by mail through
the device of a United States postal money order.'2 Following such procedure and
the results thereof, I consider Reilly would be justified in believing any further
efforts along the same line would be futile. His tenders of payment, of course,
long antedated the action involved in this complaint, but by liberal interpretation
would appear to bring him under the protection of the rule established in the
Aluminum Workers case, 112 NLRB 619, relative to any default in payment under
the agreement then in effect. In view of it appearing from the testimony herein
that nonmembership and nonpayment of union dues pursuant to the requirements
of the new agreement was quite prevalent, the fact of nondues payment by itself
cannot be accepted as the real basis for the action of Lynch on December 8, 1955.
It is patent from the record that as far as Reilly was concerned, membership in the
ILA "was not available to him on the same terms and conditions generally ap-
plicable to other members." "In these circumstances, under the express terms
of the statute, the Respondent was not free to invoke . the provisions of the
union shop agreement as a condition of employment." (T. Hogan & Sons, Incorpo-
rated, 115 NLRB 1004; Biscuit and Cracker Workers Local Union No. 405, AFL, 109
NLRB 985; affd. 222 F. 2d 573 (C. A. 2); Radio Officers' Union of the Commercial
Telegraphers Union, AFL v. N. L. R. B., 347 U. S. 17.)
I find no difficulty in accepting that the failure of Reilly to continue his regular
work on December 8, 1955 , resulted from the demand of Lynch as to his not being
checked in and the supine acquiescence of the employer to it. ' What activated Lynch
to take that particular action against Reilly , and none against others who apparently
were also delinquent under the agreement provisions, could be attributed possibly
to temper and personal resentment on the part of Lynch because of the insistence
of Reilly to check in first before listening to him , but I deem such only at best a
contributing cause, with inferentially controlling the basic fact that Reilly "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 ." (Local 791 , ILA,, Independent, supra.)
11 Although Section 8 (b) (1) permits the Respondent to regulate conditions as to
membership in it, the power may not be utilized as it was here to prejudice employment upon
factors not permitted by the Act. Reilly would appear justified in desiring to have his
membership in the local having territorial jurisdiction and to which he always had belonged
v Although more detailed proof of the transaction as to the issuance of the money
order, nondelivery of letter through refusal of addressed party, and redemption of money
order by Reilly could have been produced, the absence of it is not fatal, as full information
as to the money order number, issuance, and amount was furnished by Reilly in his com-
munications to the Union and other parties indicated, so that if falsely stated by Reilly,
proof of same could have been presented. In the absence of it, the regularity of the pro-
cedure alleged and his statements regarding it are accepted
-LOCAL--7 91r, 1661
Any other reason advanced or considered 'I would regard as mere pretext. And,
I cannot easily accept the testimony of Carr to indicate that the appearance at the
pier on December 8, 1955, was primarily for the purpose of helping workers to
acquire books in other locals pursuant to the District Council action.
With the Hogan-Company rested the decision as to whether Reilly went to work
that day. By inaction, it really took action by submitting to the union demand.
Such demand of Lynch that the Employer not check Reilly in for work, constituted a
demand that Hogan refuse to hire Reilly for that day, or to continue Reilly in their
employ.13 The demand was not founded on any lawful basis. As a result, in a
short interval of time, the Employer further acted definitely to terminate the employ-
ment of Reilly for that day, by replacing him with another worker. The lack of
action clearly related to the union demand in one instance combined with their subse-
quent quick or precipitate action in replacing,_ definitely discriminatorily affected the
hire and tenure, term and conditions of employment of Reilly. On the record, it
is found that the Respondent by its demand of December 8, 1955 , upon Hogan to
not check Reilly in for work , as customarily done, attempted to cause and did cause
Hogan to discriminate against Reilly in violation of Section 8 (a) (3), and thereby
engaged in unfair labor practices within the meaning of 8 (b) ( 2). Such conduct, it is
also found, 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.i4 -
N. 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 com-
merce 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.
Having found that the Respondent attempted to cause and did cause T. Hogan
& Sons, Incorporated , to discriminate against William H. Reilly on December 8,
1955, in regard to his hire, tenure, and term of employment , I shall recommend
that the Respondent make the said William H. Reilly whole for any loss of pay he
may have suffered by reason of such discrimination by payment to him of the
amount he would have earned that day, if permitted to work , based upon the hours
worked for that day by the other members of the number 3 hold gang, and his own
regular daily or hour wage payment rate.
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 , and causing T. Hogan & Sons , Incorporated , to dis-
criminate against William H. Reilly within the meaning of Section 8 (a) (3) of the
Act, the Respondent has engaged in unfair labor practices within the meaning of
Section 8 (b) (2) of the Act.
3. By such conduct, 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.]
13 1 cannot accept the argument of the Respondent that there was no overt or implied
effort on the part of Lynch to prevent the employment of Reilly on December 8.
is The contention of General Counsel that the declaration of Lynch on December 9, 1955,
giving the men a 2 -week period in which to secure a book in another local, was an inde-
pendent violation of Section 8 (b) (1) (A), under all the circumstances, is not so considered
or accepted by me