Local 1367, Int.l Longshoremen's Association

National Labor Relations Board - Board Decisions

Sep 11, 1964

148 N.L.R.B. 897 (N.L.R.B. 1964)

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SOCIATION 897LOCAL 1367, INT'L LONGSHOREMEN'S ASc
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1831
Nissen Building , Winston-Salem , North Carolina, Telephone No. 724-8356, if they
have any questions concerning this notice or compliance with its provisions.
Local 1367, International Longshoremen 's Association, AFL-
CIO; South Atlantic and Gulf Coast District, International
Longshoremen 's Association , AFL-CIO and Local 1368, Inter-
national Longshoremen 's Association , AFL-CIO and Galveston
Maritime Association , Inc.; Houston Maritime Association,
Inc.; Master Stevedores Association of Texas , Parties to the
Contract. Case No. 23-CB-476. September 11, 1964
DECISION AND ORDER
On January 31, 1964, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices within the meaning of the Act and recommending that they cease
and desist therefrom and take certain affirmative action, as set forth in
the attached Decision. He also found that Respondents had not en-
.gaged in and were not engaging in other' unfair labor practices which
were alleged, and recommended that the complaint be dismissed as to
them. Thereafter, the Respondents, the General Counsel, and the
Charging Party filed exceptions to the Trial Examiner's Decision; all
of the parties except the Respondent District also filed briefs in sup-
port of their exceptions.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
'this case;' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the additions and modifica-
tions set forth below.
We agree with the Trial Examiner's conclusion that (1) by main-
taining and enforcing the 75-25 percent work distribution between
Locals 1367 and 1368, respectively, based upon race and union mem-
bership, in successive collective-bargaining agreements with the several
employer associations,2 and (2) by maintaining and enforcing the "no
' The Charging Party's request for oral argument is, hereby denied as , in our opinion, the
entire record in this case , including the exceptions and briefs , adequately set forth the
issues and positions of the parties.
2 Galveston Maritime Association , Inc, Houston Maritime Association , Inc, and Master
Stevedores Association of Texas, hereinafter collectively . called the Association.
148 NLRB No. 44.
760-577-65-vol. 148-58
.898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doubling" arrangement forbidding the assignment of white and Negro
gangs to work together in 'ship hatches, Respondents have failed to
comply with their duty as exclusive bargaining representative to repre-
sent all employees in the bargaining unit fairly and impartially, and
thereby violated Section 8 (b) (1) (A) of the Act. In so finding, Mem-
bers Leedom, Brown, and Jenkins rely on the Trial Examiner's ration-
ale and on the reasoning expressed by them in Hughes Tool.'
We also agree with the Trial Examiner's finding that the Respond-
ent District violated Section 8(b) (1) (A) of the Act by taking re-
taliatory measures against Local 1368 for having filed the charges in
the instant case .4 For reasons stated in Skura,5 we reject the conten-
tion advanced by the District that its action vis-a-vis Local 1368 was
in the nature of internal union discipline immunized by the proviso
toSection8(b) (1) (A).
Further, we agree with the Trial Examiner that Respondents vio-
lated Section 8(b) (2) of the Act by causing the Association to estab-
lish, maintain, and enforce the discriminatory work apportionment
provision in successive collective-bargaining agreements as a condition
of employment. The Trial Examiner relied solely on Gaynor News
Co., Inc. v. N.L.1?.B8 and the Board unanimously agrees that Gaynor
is applicable to the 8(b) (2) issue. However, contrary to the Trial
Examiner, Members Leedom, Brown, and Jenkins also rely on
Miranda.? It follows from the rationale of that decision that the
establishment, maintenance, and enforcement of the discriminatory
work quotas in the instant case, grounded upon the irrelevant, invidi-
ous, and unfair consideration of race and union membership, clearly
discriminates against employees in violation of Section 8(a) (3).1 By
causing the Association so to discriminate, the Respondents violated
Section 8(b) (2).
0lndependent Metal Workers Union, Local No. 1 (Hughes Tool Company ), 147 NLRB
1573 In the instant case , as in the complaint portion of Hughes Tool, racial segrega-
tion or discrimination in union membership was not placed in issue. However , such segre-
gation or discrimination, based on racial considerations , when engaged in by a statutory
bargaining representative, constitutes inherently unequal and unfair representation.
4 The General Counsel contends that a complete remedy for this violation must include
reimbursement of the duly constituted and salaried officials of Local 1368 who were re-
placed as a result of the trusteeship . We do not find that this additional remedy is appro-
priate in the circumstances of this case.
5Local 138, International Union of Operating Engineers , AFL-CIO ( Charles S. Skura),
148 NLRB 679.
0 347 U.S. 17.
'Local 553, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America ( Miranda Fuel Company, Inc ), 140 NLRB 181, enforcement denied
326 F. 2d 172 ( C.A. 2). With due deference to the circuit court's opinion , we adhere to
our previous decision ' until such time as the Supreme 'Court of the United States rules
otherwise . We also agree with the General Counsel's contention that the Trial Exam-
iner erred in not following applicable Board precedent . Iowa Beef Packers, Inc, 144
NLRB 615.
8 Msranda Fuel Company, Inc., supra, at 186.
LOCAL 13,67, INT'L !LONGSHOREMEN'S ASSOCIATION 899
The General Counsel and the Charging Party contend that the Trial
Examiner erred in failing to find that the Respondents' conduct
violated Section 8(b) (3). As we understand the Trial Examiner's
Decision, he was constrained to hold that the Respondents' racially
discriminatory actions did not breach their obligation to bargain col-
lectively only because, in his view, Section 8 (b) (3), when read in con-
junction with Section 8(d), imposes upon a statutory representative
a duty that runs solely to employers and does not impose a duty
". . . relative to the employees which it represents . . . ." 9 In the
Hughes Tool case, supra, we agreed with another Trial Examiner that
"nothing in the statutory language requires such a.limitation on the
union's duty; certainly the employer's corresponding duty runs both
to the union and to the employees in the unit." to
We hold that under the National Labor Relations Act a labor
organization's duty to bargain collectively includes the duty to repre-
sent fairly as that duty has been enunciated in the line of cases of which
Steele v. L & N Railroad, 323 U.S. 192 (1944), was the first.li Section
8 (d) speaks, inter alia, of a mutual obligation of employers and unions
"to confer in good faith" and to sign-"any agreement reached." These
quoted phrases contemplate, in our opinion, only lawful bargaining
and agreements, for the statute does not sanction the execution of
agreements which are unlawful. Because collective bargaining agree-
ments which discriminate invidiously are not lawful under the Act,
the good-faith requirements of Section 8(d) necessarily protect em-
ployees from infringement of their rights; 12 and both ' unions and
employers are enjoined by the Act from entering into contractual
e Section 8(d) provides:
For the purposes of this section [ 8], to bargain collectively is the performance of the
mutual obligation of the employer and the representative of the employees to meet at
reasonable times and to confer in good faith with respect to wages, hours , and other
terms and conditions of employment , or the negotiation of an agreement , or any
question arising thereunder , and the execution of a written contract incorporating
any agreement reached if requested by either party.. . .
10 The Board recognized in its earliest days that an employer 's duty to bargain collec-
tively is owed both to his employees and to their statutory representative. See Rosenfarb,
"The National Labor Policy" ( Harper & Brothers , 1940), pages 187-188.
u See Cox, "The Duty of Fair Representation ," 2 Villanova L. Rev. 151. Cf. Kenneth
B. McLean, d/b/a Ken's Building Supplies v. N.L R B., 333 P. 2d 84, 88 (C.A. 6), where
the court, in speaking of a union 's dilatory acts during collective bargaining , said: "Al-
though the union 's conduct in neglecting to negotiate during an eight month period, was
certainly not exemplary, it seems to us that it constituted more of a violation of duty
owing to its members than to" the employer.
In Ford Motor Co. v. Huffman, 345 U:S. 330, 337-338, the Court said:
... Their [representatives '] statutory obligation to represent all members of an
appropriate unit requires them to make an honest effort to serve the interests of all
of those members, without hostility to any. [Authority cited ]
. . . The bargaining representative, whoever it may be, is responsible to, and owes
complete loyalty to, the interests of all whom it represents . . . . A wide range of
reasonableness must be allowed a statutory bargaining representative in serving the
unit it represents , subject always to complete good faith and honesty of purpose in
the exercise of its discretion.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms which offend such rights 13 Contrary to the Tiial Examiuei,
Section 8(d) cannot mean that a union can be exercising good faith
toward an employer while simultaneously acting in bad faith toward
employees in i egai d to the same matters Section 8(d), as all other
provisions of the Act, was written in the public interest, not just in
the interest of employers and unions, and it is not in the public interest
for patently iii. alid provisions to be included in collective labor agree-
ments We conclude that when a statutory representative negotiates
a conti act in breach of the duty which it owes to employees to represent
all of them fairly and without invidious discrimination, the repiesent-
ative cannot be said to have negotiated the sort of agreement en-
visioned by Section 8 (d) nor to have bargained in good faith as to the
employees whom it iepresents or toward the employer In summary,
we find that the Respondents violated Section 8(d) (3)
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act. as
amended, the National Labor Relations Board heieby orders that
A Respondents, Local 1367, International Longshoremen's Asso-
ciation, AFL-CIO, and South Atlantic and Gulf Coast District, Inter-
national Longshoremen's Association, AFL-CIO, their officers, agents,
i epresentatives , successors , and assigns, shall
1 Cease and desist from
(a) Maintaining, performing, or enforcing the provisions of their
collective-bargaining contract with Galveston Maritime Association,
Inc, Houston Maritime Association, Inc, and Master Stevedores
Association of Texas which allocate job referrals in the ports of
Cameron County, Texas, to Locals 1367 and 1368, International Long-
shoremen's Association, AFL-CIO, on a 75-25 percent ratio, respec-
tively, on the unlawful basis of race or union membership, or main-
taming, performing, or enforcing, by contract or otherwise, any like
or related arrangement which bases, allocates, or apportions referrals
to available jobs with the above-named Associations on the unlawful
basis of race or union membership
13Cf Central of Georgia Railway Co , et at v Jones , et at, 229 F 2d 648 (CA 5),
cert denied 352 U S 848 , Richardson , et at v T t N 0 Railroad, et at , 242 F 2d 230
(C A 5), both of which cases arose under the Railway Labor Act In the latter case, at
page 236, the court said with respect to that Act
It takes two parties to reach an agreement , and both ha%c a legal obligation not to
nake or enforce an agreement or discriminatory employment practice which they
either know , or should know, is unlawful Unless financial responsibility for a joint
breach of such duty is required from both sides of the bargaining table, the statutory
policy implied under Steele will be impracticable of enforcement For the foregoing
reasons , we think the Brotherhood ' s obligation under the statute does not exist in
vacuo, unsupported by any commensurate duty on the part of the carrier
LOCAL 1367, INT'L LONGSHOREMEN'S' ASSOCIATION 901
(b) Maintaining and enforcing their arrangement which forbids
the assignment of gangs of white and Negro employees to work to-
gether in ship hatches.
(c) Causing or attempting to cause the above-named Associations,
or any other employer, to discriminate against any employee by
making or enforcing any agreement or arrangement which provides
for job referral quotas based upon an employee's race or union mem-
bership, or on any like or similar consideration, or which forbids the
assignment of gangs of white and Negro employees to work together
in ship hatches.
(d) Refusing to bargain on behalf of any or all employees in the
bargaining unit by entering into, maintaining, performing, or en-
forcing any agreements or arrangements which provide for job referral
quotas or which otherwise discriminate against employees because of
their race or union membership.
(e) In any like or related manner restraining or coercing employees
in the exercise of their rights guaranteed by the National Labor Re-
lations Act.
2. Take the following affirmative action which is necessary to effec-
tuate the policies of the Act :
(a) Notify the above-named Associations who employ longshore-
men at the ports in Cameron County, Texas, that Respondents will
cease performing or giving effect to those provisions of their
collective-bargaining contract which allocate job referrals to Locals
1367 and 1368, International Longshoremen's Association, AFL-CIO,
on a 75-25 percent ratio, respectively, based on race or union member-
ship ; that they will not maintain, perform, or enforce any like or re-
lated arrangement, by contract or otherwise, which bases, allocates, or
apportions referrals to available jobs on the unlawful consideration of
race or union membership ; and that they will no longer maintain or
enforce the arrangement which forbids the assignment of gangs of
'vhite and Negro employees to work together in ship hatches.
(b) Post at their business offices , and meeting halls, copies of the
attached notices marked "Appendix A" for Local 1367's notice and
"Appendix B" for the District's notice.14 Copies of said notices, to be
furnished by the Regional Director for Region 23, shall, after being
duly signed by representatives of Local 1367 and the District, be
posted immediately upon receipt thereof, and be maintained by them
for at least 60 consecutive days thereafter, in conspicuous places, in-
cluding all other places where notices to their members are customarily
posted. Reasonable steps shall be taken by them to insure that said
notices are not altered, defaced, or covered by any other material.
"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 "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order "
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With the permission of the above-named Associations who employ
longshoremen referred to jobs at the Cameron County, Texas, ports,
copies of said notices shall be posted at their places'of business where
notices or communications to their employees are customarily posted.
B. Respondent, South Atlantic and Gulf Coast District, Inter-
national Longshoremen's Association, AFL-CIO, its officers, agents,
representatives, successors, and assigns, shall, additionally :
1. Cease and desist from :
(a) Penalizing the members of Local 1368, International Long-
shoremen's Association, AFL-CIO, by causing the imposition of a
trusteeship over the local's affairs in reprisal for filing the charges in
the instant case, and to compel said local to withdraw its charges
herein, or in any like or related manner penalizing their members for
seeking access to the Board's processes and remedies.
('b) In any like or related manner restraining or coercing em-
ployees in the exercise of their rights guaranteed by the National
Labor Relations Act.
2. Take the following affirmative action which is necessary to effec-
tuate the policies of the Act :
(a) Notify International Longshoremen's Association, AFL-CIO,
that it has caused it to impose a trustee over the affairs of Local 1368
in reprisal for the filing of the charge in this case and in order to com-
pel Local 1368 to withdraw that charge; that the District is with-
drawing its retaliatory charge against Local 1368, filed with the ILA,
and that it desires the removal of the trustee and restoration of au-
thority to the officers and membership of Local 1368 to manage their
own affairs.
(b) Make whole Local 1368 for all expenses incurred during the
trusteeship in excess of those expenses which normally would have been
incurred by Local 1368 in the management of its affairs by its own
officers and membership.
C. Local 1367 and the District, their officers, agents, representatives,
successors, and assigns, each shall notify the Regional Director for
Region 23, in writing, within 10 days from the date of this Order,
what steps the Respondents have taken to comply herewith.
CHAIRMAN McCULLOCII and MEMBER FANNING, concurring in part
and dissenting in part:
We find, together with the majority Members of the Board, that
Respondent District violated Section 8(b) (1) (A) by punishing Local
1368 for having filed unfair labor practice charges with the Board
against Respondents.
We further find that the 75-25 percent work distribution arrange-
ment between Locals 1367 and 1368, and the "no doubling" arrange-
LOCAL 1367, INT'L LONGSHOREMEN'S ASSOCIATION 903
ment forbidding the assignment of white and Negro gangs to the same
hatch, based as they were in part on union considerations, violated
Section 8(b) (2), and thereby derivatively also violated Section
8('b) (1) (A). We expressly do not rely on the majority opinions in
the Miranda 16 and Hughes Tool 16 cases in making this finding, but
rely solely on the reasoning set forth in our separate opinion in Hughes
Tool.'''
For the reasons stated in our opinion in Hughes Tool, we agree with
the Trial Examiner here and dissent from the majority's holding that
by maintaining and enforcing the discriminatory work allocation ar-
rangement Respondents violated Section 8(b) (3).
15 Miranda Fuel Compan y, Inc, supra.
18 Independent Metal Workers Union, Local No. 1 (Hughes Tool Company),-supra.
17 As to 8 ( b) (1) (A), see text of our opinion and, cited cases at footnote 17, Hughes Tool
Company, ibid . As to 8 ( b) (2), on which we concur with the reasoning of the Trial Ex-
anuner here, see text of opinion and cited case at footnote 39, Iiighes Tool Company, ibid.
APPENDIX A
NOTICE TO ALL MEMBERS OF LOCAL 1367 INTERNATIONAL LONGSHORE-
MEN'S ASSOCIATION, AFL-CIO
Pursuant to a Decision and Order- of the National Labor Relations
Board, and in order to effectuate the policies, of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT maintain, perform, or enforce the provisions of
the collective-bargaining contract with Galveston Maritime As-
sociation, Inc., Houston Maritime Association, Inc., and Master
Stevedores Association of -Texas, which allocate referrals to long-
shore jobs in the ports of Cameron County, Texas, to Locals 1367
and 1368, International Longshoremen's Association, AFL-CIO,
on a 75-25 percent ratio, respectively, on the basis of race or union
membership; nor will we maintain, perform, or enforce, by con-
tract or otherwise, any like or related arrangement which bases,
allocates, or apportions referrals to available jobs with the above-
named Associations ^ on the unlawful basis of race or union
membership.
WE WILL NOT maintain or enforce the arrangement which for-
bids the assignment of gangs of white and Negro employees to
work together in ship hatches.
WE WILL NOT cause or attempt to cause the above-named Asso-
ciations, or any other employer, to discriminate against any em-
ployee by making or enforcing agreements or arrangements which
provide for job referral quotas based upon an employee 's race or
union membership, or any like or related consideration, or which
forbids the assignment of gangs of white and Negro employees
to work together in ship hatches.
904 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to bargain with the above-named Asso-
ciations on behalf of any or all employees in the bargaining unit
by entering into, maintaining, performing, or enforcing any
agreements or arrangements which provide for job referral
quotas, or which otherwise discriminate against employees be-
cause of their race or union membership.
WE WILL NOT in any like or related manner coerce or restrain
employees in the exercise of their rights guaranteed by the Na-
tional Labor Relations Act.
WE WILL notify the above-named Associations who employ
longshoremen at the ports in Cameron County, Texas, that we
will cease performing or giving effect to those provisions of our
collective-bargaining contract which allocate job referrals to
Locals 1367 and 1368, International Longshoremen's Association,
AFL-CIO, on a 75-25 percent ratio, respectively, based on race or
union membership; that we will not maintain, perform, or enforce
any like or related arrangement, by contract or otherwise, which
bases, allocates, or apportions referrals to available jobs on the
unlawful consideration of race or union membership; and, that
we will no longer maintain or enforce the arrangement which
forbids the assignment of gangs of white and Negro employees to
work together in ship hatches.
LOCAL 1367, INTERNATIONAL LONGSHOREMEN'S
AssocIATION, AFL-CIO, -
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive, days from the
date of posting, and must not be altered, defaced, or covered by any
other material. -
Employees may communicate directly with the Board's Regional
Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston,
Texas, Telephone No. Capital 8-0611, Extension 296, if they have
any question concerning this notice or compliance with its provisions.
APPENDIX 'B
NOTICE TO ALL MEMBERS OF SOUTH ATLANTIC AND. GULF DISTRICT,
INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION , AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to ' effectuate the policies. of the National Labor
Relations Act, as amended, we hereby'y, notify you that :
WE WILL NOT maintain , perform, or enforce the provisions of
the collective -bargaining contract with Galveston Maritime Asso-
LOCAL 1367, INT'L LONGSHOREMEN'S ASSOCIATION 905
ciation, Inc., Houston Maritime- Association, Inc., and Master
Stevedores Association of Texas, which allocate referrals to long-
shore jobs in the ports of Cameron County, Texas, to Locals 1367
and 1368, International• Longshoremen's Association, AFL-CIO,
on a 75-25 percent ratio, respectively, on the basis of race or union
membership ; nor will we maintain, perform, or enforce, by con-
tract or otherwise, any like or related arrangement which bases,
allocates, or apportions referrals to available jobs with the above-
named Associations on the unlawful basis of race or union
membership.
WE WILL NOT maintain or enforce-the arrangement which for-
bids the assignment of gangs of white and Negro employees to
work together in ship hatches.
WE WILL NOT cause or attempt to cause the above-named Asso-
ciations, or any other employer, to discriminate against any em-
ployee by making or enforcing agreements or arrangements
which provide for job referral quotas based upon an employee's
race or union membership; or any like or related consideration,
or which forbid the assignment of gangs of white and Negro
employees to work together in ship-hatches. - -
WE WILL NOT refuse to bargain with the above-named Asso-
ciations on behalf of any or all employees in the bargaining unit
by entering into, maintaining, performing, or enforcing any
agreements or arrangements which provide for job referral
quotas, or which otherwise discriminate against employees be-
cause of their race or union membership.
WE WILL NOT penalize the members of Local 1368, International
Longshoremen's Association, AFL-CIO, by causing the imposi-
tion of a trusteeship over the local's affairs in reprisal for filing
charges against us with the National Labor Relations Board or to
compel said local to withdraw such charges as it may have filed
against us, or in any like or related manner penalize them for
seeking access to the Board's processes and remedies.
WE WILL NOT in any like 'or related manner coerce or restrain
employees in the exercise of their rights guaranteed by the Na-
tional Labor Relations Act.
WE WILL notify the above-named Associations who employ
longshoremen at the ports in Cameron County, Texas, that we
will cease performing or giving effect to those provisions of our
collective-bargaining contract which allocate job referrals to
Locals 1367 and 1368, International Longshoremen's Association,
AFL-CIO, on a 75-25 percent ratio, respectively,' based on race
or union membership; that we will not maintain, perform, or
enforce any like or related arrangement, by contract or other-
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wise, which bases, allocates, or apportions referrals to available
jobs on the unlawful consideration of race or union membership;
and, that we will no longer maintain or enforce the arrangement
which forbids the assignment of gangs of white and Negro em-
ployees to work together in ship hatches.
WE WILL take all necessary steps to end the trusteeship over the
affairs of Local 1368, International Longshoremen's Association,
AFL-CIO, which we caused in reprisal, and to have the manage-
ment of these affairs restored to the officials and membership of
this labor organization.
WE WILL make whole Local 1368, International Longshore-
men's Association, AFL-CIO, for all expenses incurred by the
trustee in the course of the foregoing trusteeship in excess of the
expenses which would normally have been incurred in the opera-
tion of this labor organization by its own officials.
SOUTH ATLANTIC AND GULF COAST DISTRICT, INTERNA-
TIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative)' (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston,
Texas, Telephone No. Capital 8-0611, Extension 296, if they have any
question, concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon the filing of a charge on April 29, 1963, by Local 1368, International Long-
shoremen's Association , AFL-CIO, herein called Local 1368 , against South Atlantic
and Gulf Coast District , International Longshoremen 's Association , AFL-CIO,
herein called the District , and against Local 1367 , International Longshoremen's
Association, AFL-CIO, herein called Local 1367, the General Counsel of the Na-
tional Labor Relations Board , herein called the Board , by the Regional Director for
Region 23, issued a complaint on May 13, 1963 , alleging that the District and Local
1367 had engaged in and were engaging in conduct violative of Section 8(b) (1) (A),
(2), and ( 3) of the National Labor Relations Act, 61 Stat. 136, herein called the
Act. By amendment to the complaint Galveston Maritime Association , Inc., Houston
Maritime Association , Inc., and Master Stevedores Association of Texas, herein col-
lectively called the Association , were named Parties to the Contract . By their an-
swers duly filed, the District and Local 1367 in substance deny the complaint allega-
tions of statutory violation . Pursuant to notice, a hearing was held July 23, 24,
and 25, 1963, at Brownsville, Texas, before Trial Examiner Thomas N. Kessel. All
parties except the Parties to the Contract were represented by counsel . Briefs filed
by the General Counsel, Local 1367 , and the Charging Party after the close of the
hearing have been 'considered.
LOCAL 1367, INT'L LONGSHOREMEN'S ASSOCIATION 907
Upon consideration of the entire record , and from my observation of the wit-
nesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE PERTINENT COMMERCE FACTS
The complaint alleges, and Local 1367 and the District, herein collectively called
the Respondents , admitted at the hearing, that owners and operators and/or agents
of deep sea vessels including but not limited to Port of Brownsville Stevedoring
Company, Border Stevedoring Company, Lykes Bros. Steamship Co., Inc., Lallier
and Company , Dix Shipping Company, and Plitt and Company, arriving at and/or
departing from ports in Texas, including the port of Brownsville , Texas, are mem-
bers or associate members of Galveston Maritime Association , Inc., and/or Houston
Maritime Association , Inc., and/or the Master Stevedores Association of Texas. It
is further alleged and admitted that the foregoing associations are and have at all
times material herein been Texas corporations ; that Galveston Maritime Association
has its principal office and place of business in Galveston , Texas; that Houston Mari-
time Association , Inc., and Master Stevedores Association of Texas have their prin-
cipal place of business in Houston , Texas; that the foregoing associations are asso-
ciations of employers engaged in the loading and discharging of vessels in the ports
of Texas including the port at Brownsville , Texas; that these associations exist for
the purpose, inter aka, of negotiating and administering collective-bargaining agree-
ments on behalf of their employer members with various labor organizations in-
cluding the District, Locals 1367 and 1368, and the International Longshoremen's
Association , AFL-CIO, herein called the ILA, and are now operating under the terms
of a collective -bargaining agreement with-these named labor organizations ; that dur-
ing the year preceding issuance of the complaint the employer members of the fore-
going associations in the course of their ' operations furnished stevedoring services to
steamship companies operating vessels in interstate and foreign commerce valued in
excess of $500,000; and that Strachan Shipping Company, an employer member of
all three foregoing associations , during the same period furnished stevedoring serv-
ices to steamship companies operating vessels in interstate and foreign commerce
valued in excess of $100,000. It is further alleged and admitted that the foregoing
employers are engaged in commerce within the meaning of the Act. Accordingly,
I find the purpose of the Act will be effectuated by the assertion of the Board's
jurisdiction in this case.
II. THE LABOR ORGANIZATIONS INVOLVED
District and Locals 1367 and 1368 are labor organizations within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
Principally at issue are provisions in a labor contract allocating to two unions,
one Local 1367 with an all white membership , and the other Local 1368 with an all
Negro membership , fixed unequal percentages of work which may be referred by
each to employees seeking jobs through their respective hiring halls with the employer
Parties to the Contract . The General Counsel and Charging Party contend that the
District and Local 1367 by maintaining and enforcing these contractual provisions
are violating Section 8 (b)(1)(A), (2), and (3 ) of the Act. The Respondents, par-
ticularly Local 1367, maintain that the foregoing work division is not discriminatory
but instead represents a fair and equitable sharing of available work between the
two racial groups. They further claim that the complained -of quotas may not be
found to discriminate against Local 1368 because it had voluntarily agreed to them
and had accepted them over the years . The Respondents furthermore disclaim re-
sponsibility for the establishment and maintenance of the foregoing quotas and attrib-
ute their creation to the ILA which is not a party to this proceeding . The failure
to join the ILA as a party , they say, is a fatal defect requiring dismissal of the
complaint.
A second issue involves the seizure of control over Local 1368 by an administrator
appointed to run its affairs by the ILA at the behest of the District . Allegedly, the
District 's action was reprisal against Local 1368 because it had filed the charge in
this proceeding . Thereby, contend the General Counsel and Charging Party, the
District violated Section 8(b) (1) (A) of the Act. Apart from the denial in the Dis-
trict's answer that it had engaged in the conduct ascribed to it or that such conduct
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this case was violative of the Act, the only explicated defense is the one made at
the hearing, namely, that the trusteeship imposed over Local 1368 was lawful be-
cause this was done in accordance with the provisions of the constitution of the ILA
and of Local 1368.
The ILA services its total membership through lesser affiliated organizations each
with varying degrees of autonomy . Below the level of the parent organization are-
the districts with jurisdiction over the local organizations within their geographical
ambits. The South Atlantic and Gulf Coast District , as implied by its name, has
authority over an area comprising the ports on the South Atlantic and Gulf of Mexico.
Included therein are the ports of Brownsville , Harlingen , and Port Isabel, all of
which are located in Cameron County, Texas, at the southernmost part of that State
on the Gulf of Mexico . The local organizations which by charter or other authoriza-
tion from the ILA have jurisdiction over the longshore work at these ports are Locals
1367 and 1368 . The alleged unlawful work quotas pertain to the longshore work
which may be referred by Locals 1367 and 1368 at the three ports above mentioned,
75 percent by the former and 25 percent by the latter.
A contract, effective October 1, 1956, and which by its terms was to have termi-
nated on September 30, 1959 , was concededly made with the employing shipping and'
stevedoring companies operating in the gulf coast 'ports from Lake Charles , Louisi-
ana, southward through all the Texas ports, including the three ports under the
jurisdiction of Locals 1367 and 1368 . These are the companies referred to as the
Association . The contract with the Association in evidence does not reveal who
were the signatory when it was made in 1956 but it does specify that the parties
theieto are the Association , the ILA, and 26 designated affiliated locals including
Locals 1367 and 1368 . In 1959 the contract , with certain variations , was extended
from October 1 of that year to October 1, 1962. Thereafter it was again extended
until September 30, 1964. The document reveals that ' these extensions were signed
in behalf of the District by its president ostensibly binding all the labor organiza-
tions privy to the original agreement.
By stipulation it is established that all employees of the Association engaged in,
deep sea longshore work at the ports from Lake Charles, Louisiana, southward to
and including the port at Brownsville , Texas, constitute a unit appropriate for col-
lective bargaining within the Act's meaning. The ILA, the District, and all the ILA
local organizations within the District from Lake Charles to Brownsville to which
the foregoing employees belong are jointly the collective -bargaining representative of
the employees in the foregoing appropriate unit . The joint bargaining representa-
tive performs the special function of negotiating a single contract with the Associa-
tion for the unit employees . At the same time each local organization to which
these employees belong autonomously performs services under its separate charter,
constitution , and bylaws for its particular members and in effect acts for these mem-
bers as their collective-bargaining representative in all respects in which such repre-
sentative normally functions except for the negotiation of the unit contract which, as
noted , is negotiated by the joint collective-bargaining representative.
The only part of the 1956 contract relevant to the issues herein is contained in the
section entitled "Hiring Halls." Provision therein is first made for the furnishing of
longshoremen to service the needs of the Association through hiring halls operated
and administered by the designated 26 local organizations . The section next pro-
vides that:
To assure that no discrimination will be made on account of race, it is agreed
that the work will be divided between white and colored longshoremen, working
in solid gangs of either white or colored on the same ratio basis as now exists in
the respective ports covered by this agreement : Except , that . Local 1368 to
receive their proportion of work as agreed upon by the district office of the ILA.
These provisions were unchanged by the 1959 and 1962 extensions and were con-
-sequently continued as part of the extended agreement now in force . The complaint
alleges and the Respondents admitted at the hearing that these provisions have at all
times since October 1 , 1956, been enforced and maintained by the Association, the
District, and Local 1367 as parties to the agreement.
It is the execution and the maintenance of the aforestated 'provision concerning
the "proportion of work" to be received by Local 1368 which represents the crux of
the case. -To apprehend what is Local 1368's proportion and how it was determined
requires consideration of the historical evidence which follows. To avoid any mis-
conceptions it should be emphasized that this case is not concerned with the arrange-
ment suggested by the foregoing contract for the division of work between ILA locals
at any ports outside Cameron County. The General Counsel carefully assured the
,LOCAL 1367, INT'L LONGSHOREMEN'S ASSOCIATION 909
Respondents at the hearing it was not his intention in this proceeding to delve into
conditions at these other ports and it was made clear that there would be no litigation
of these matters in this case.
Before 1934 there were no ILA locals chartered in Cameron County. Construc-
tion was then proceeding of facilities for deep sea shipping at the Brownsville and
Port Isabel ports and such longshore work as may have been available was only at
the port of Harlingen. Apparently, because of the expectation that the new facilities
;would provide work opportunities, Fred D. Wilson, a Baptist reverend at Brownsville,
was inspired to organize a group of Negroes and to secure for them a local charter
from the ILA. He obtained legal assistance and communicated with ILA President
Ryan who referred him to District President Dwyer. The latter informed Reverend
Wilson that a charter could not be granted his group unless a corresponding charter
was simultaneously granted to a local composed of white members.' Pursuant to
these instructions Reverend Wilson and his brethren organized the several Negro and
white groups going so far as to lend the white locals the $10 payment for each de-
manded by.the ILA for the charters which it granted.
Having secured its charter, Local 1368 engaged in a vain attempt to obtain long-
shore work at the Cameron County ports. It appears that employers were unwilling
to employ its members because of their race, whereas Local 1367 did succeed in se-
curing some work. There is no evidence to warrant any finding of responsibility on
the part of the Respondents for the refusal in these years by the employers to give
work to Negro longshoremen. This condition persisted and in 1940 the ILA revoked
the Local 1368 charter because its members had no work and because no dues were
received. The revocation was with the understanding that the charter would be re-
instated at such time as there was need for more longshoremen in the area.
During the war years of the 1940's there was practically no longshore work at the
Cameron County ports. In 1946, however, there was a dramatic resurgence in ship-
ping at these ports and the interest of the Negro longshoremen in the area for work
opportunities was rekindled. At the District's 1948 convention, a resolution was
introduced for the reissuance of the Local 1368 charter. There followed a 2-year in-
vestigation of the question with a recommendation in 1950 by the District for restora-
tion of the charter. Local 1368's objective was not merely to regain its charter but
° also to share in the work then being obtained exclusively through referral by Local
1367. This matter was also studied by a subcommittee of the District's executive
board. The minutes of the May 25, 1950, meeting of this subcommittee 2 show the
search for a formula by the committee for the sharing of Local 1367's work with
Local 1368 at the port of Brownsville and the decision of the subcommittee to re-
solve the question by a division of the work in accordance with the terms of an agree-
ment devised by the subcommittee 3 which provided that:
The General Longshore work at the port of Brownsville will be divided be-
tween the aforementioned locals (1367 and 1368) on a seventy-five percent
(75%) and twenty-five (25%) basis.
Local 1367 to dispatch three gangs each time Local 1368 dispatches one gang
for work.
The agreement ultimately drafted and signed further provided that the foregoing
arrangement was to become "part of the present and all future contracts, and can
only be changed by mutual consent of all parties concerned."
'The official record of the District's May 21, 1956, convention at Brownsville docu-
ments the facts concerning the creation of separate white and Negro locals in 1934 and
the reasons therefor . It states :
In December 1934, during construction of the deep water Ports of Brownsville and
Port Isabel, charters were issued by the International Union to Locals #1367, #1368,
#1369, #1370, #1371, #1372 which consisted of three white and three colored locals
The necessity for this was the fact that the ILA rules at that time required that all
Deep Sea Coastwise and Warehouse work be divided equally.
Locals 1369, 1370, 1371, and 1372 are chartered for coastwise and warehouse work. This
case is not concerned with them.
2 Appearing in the printed record of the proceedings of the District's forty-first annual
convention at Mobile, Alabama, May 21 to 24, 1951.
3 Members of the subcommittee were also members of the District's executive board and
included District President P. A. Yeager, Vice President W. M. Jones, and Assistant
Secretary-Treasurer Dave Dennis.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The foregoing minutes of the District's subcommittee meeting reveal the opposi-
tion by Local 1367's President Barton to the sharing of his organization's longshore
work with Local 1368 for the stated reason that there was not enough work for both
locals and that any diminution in Local 1367's work would constitute a hardship for
its members. The persistence of the subcommittee to achieve a solution led to its
conclusion that the agreement for the 75-25 percent arrangement should be made
effective despite the opposition of Local 1367. Accordingly, as shown by the fore-
going minutes:
It was unanimously agreed that the following agreement would be made an
order of the District and if same would not be carried out the committee would
recommend that the International revoke the charter of Local 1367 and use all
of the resources of the International and the District to reorganize the Port of
Brownsville.
The printed record of the District's forty-first annual convention proceedings also
contains an account of the resistance by Local 1367 to the subcommittee's action.
After the 75-25 percent division was "recommended" to Local 1367, the plan was
presented to its members who refused to concur in the recommendation. The Dis-
trict's executive board was so advised. Thereupon committees of Locals 1367 and
1368 were informed the recommendation now was an "order" of the board. In June
1950, the ILA notified Local 1367's president that the "policy" concerning the local
had been agreed upon by six International vice presidents and that the local's mem-
bership must carry out that policy. In July the District's president and two executive
board members met with Local 1367's president at Brownsville and were apprised by
the latter that the local's membership still refused to obey the executive board's order.
Later that month, as a group consisting of a District subcommittee and the ILA
executive board met with the employing companies at Brownsville to discuss the divi-
sion of work ordered by the District executive board, the meeting place was picketed
by a group led by Local 1367's president. Consequently, the District's president sus-
pended the officers of Local 1367.
Ralph A. Massey, currently the District's president, assumed this office in 1954.
Before then he had from 1947 been the District's secretary-treasurer. In his view
the arrangement for the 75-25 percent division was accomplished by a committee'
designated by the ILA. To show further that this was action by the ILA rather than
the District, he pointed to the fact that Alfred Chittenden, who in 1950 was a mem-
ber of he District's executive board, was sent by ILA President Ryan to Brownsville
as his special representative to obtain acquiescence in the plan by Locals 1367 and
1368. It is to be noted in this respect that the document embodying the plan which
was ultimately signed by the presidents of both locals states it was "attested to by a
Special Representative of President Joseph F. Ryan I.L.A.," and bears Alfred Chitten-
den's signature as such representative.
The reluctant signature of Local 1367's president has been indicated. It should be
added that Reverend Wilson also signed reluctantly in behalf of Local 1368, for a
25-percent share of the work fell short of his local's apparent aim to divide the work
equally with Local 1367.4 ILA Special Representative Chittenden, however, pre-
vailed upon Wilson to sign, albeit he did so under protest, with the encouragement
that Local 1368 would thereby get its foot in the door and that the arrangement was
not permanent.
Since the signing of the agreement and the incorporation of its terms in contracts
with the Association, several attempts were made by Local 1368 to secure a more
favorable revision of the work-sharing formula. Its appeals to the District and to
Local 1367 have been unavailing. The District's 1956 convention at Brownsville
referred various resolutions to a "committee" which considered and reviewed "all the
facts, circumstances and evidence presented by the parties" and made recommenda-
tions which presumably were adopted by the convention. Among the resolutions
was one, # 13, calling for elimination of the "restriction of one-fourth of the work . . .
and we work jointly, forward and aft, with other locals at said Ports in the same per-
formance or class of work." The committee recommended rejection of the resolu-
tion and continuation of the status quo. It noted that:'
The agreement, negotiated by International Representative, Al Chittenden, and
consummated on August 6, 1950, was entered into by the parties in good faith,
* That Local 1368 sought an even split in the work is indicated from the position taken
by President Barton of Local 1367 before the District's 1950 subcommittee. He suggested
that unless all work in the District, presumably where dual locals exist along racial lines,
were divided 50-50, Local 1367 would not give up any part of its work.
LOCAL 1367, INT'L LONGSHOREMEN'S ASSOCIATION 911
and therefore should continue to be binding and enforceable upon the parties
until such time as they mutually agree otherwise. The committee finds that
any change in the present status (25 percent colored-75 percent white) would
cause chaos in other Ports where no such division of work exists.
As recently as 1962 and 1963, William O. Tisdale, the Local i368 president, sought
unsuccessfully to negotiate revision of the work sharing arrangement with District
President Massey and Local 1367 President McCabe. Tisdale testified that the latter's
response to his request in March or April 1963, for discussion of the subject was
"this is the way that it is, and this was the way that his membership wanted it, and
that was the way it was going to be." Although McCabe sought to refute Tisdale's
claims that he had deliberately avoided certain meetings with him, he did not ex-
pressly deny that he had communicated the foregoing opposition to abandonment
or revision of the,work-sharing plan. I credit Tisdale's testimony that McCabe had
taken the position attributed to him.
Coupled with the work-sharing formula is an arrangement which precludes the
assignment of a white gang of longshoremen from Local 1367 and a Negro gang
from Local 1368 to work side by side in a single hatch on a ship. Generally, only
one gang is required to work in a hatch, but there are certain ships and cargoes which
require two gangs. On these occasions both gangs must be of the same race, neces-
sarily from the same local. Because Local 1367 receives 75 percent of the work this
means, stated otherwise, that it sends three gangs before Local 1368 sends one gang.
If Local 1367 has already sent two gangs and has what is termed the next "out" for
a third gang, and if the next out is for a gang to work in a double hatch, the local
may choose to avail itself of the fourth out also so that both gangs in the hatch will
be white. Local 1368 will eventually make up for the "out" it could not take in turn
so that in the end it will receive its 25-percent share of the total work. Witnesses,
however, claimed in its behalf that the arrangement results in the assignment to
Local 1367's gangs of more lucrative work. Whether in fact the chance elements in-
herent in the arrangement produce this favorable result for Local 1367 at the expense
of Local 1368 is not seriously disputed by the former which at the hearing and in its
brief expressed its willingness to abandon the arrangement and to have its gangs work
in the same hatch with Negro gangs. The brief goes so far as to invite a finding that
the arrangement is violative of the Act.
There is no provision in the Association contract, nor has-there ever been against
doubling of white and Negro gangs in single hatches. Nor is this stricture contained
in the work-sharing agreement signed by the locals. The arrangement originated,
according to President McCabe, in 1950 when the 75-25 percent agreement was
reached. Special Representative Chittenden and District President Yeager had then
recommended that the turmoil and hard feelings engendered in the course of extract-
ing the agreement made it inadvisable to place gangs from both locals in one hatch.
McCabe testified that the hard feelings of that time no longer exist and that no tur-
moil would ensue if gangs from each local worked together in a hatch. He acknowl-
edged that since the arrangement was instituted his local has complied with it by
refusing to permit its gangs to work in a single hatch with Local 1368 gangs.
Upon the filing of the charge in this case by Local 1368, District President Massey
initiated his own charge with the ILA against the local for failure to pursue pro-
cedures consistent with constitutional requirements of the ILA 5 As a result the
ILA immediately ordered the imposition of a trusteeship over the local. W. H.
Hopkins, the District 's assistant secretary and member of its executive board, was
authorized to carry out the ILA's mandate and accordingly came to Brownsville
for this purpose. In advance of his arrival he had informed Local 1368 President
Tisdale to communicate with Massey. By telephone Massey stated his refusal to
confer with the Local's representatives unless the charge were first withdrawn.
This condition was rejected. Hopkins arrived at Brownsville the next morning and
installed an administrator, Henry Washington from ILA Local 872 in Houston, and
an assistant administrator, Lee Smith, who had been the local's financial secretary-
treasurer. The local's president, board chairman, and business agent were stripped
of their authority. Smith assumed the duties of business agent. Having taken
these actions, Hopkins advised Local 1368 that if its charge were withdrawn the
ILA would remove the administrator.
Although Hopkins stated that the expense of operating Local 1368 during its
trusteeship would be borne by the District, the record shows that additional ex-
5 Neither the ILA constitution nor any other document relating to the procedures in-
voked by Massey's charge are in evidence Massey's testimony indicates that Local 1368
should have been but was not furnished a copy of the charge he filed with the ILA.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
penses resulting from this action have been imposed on the local . Thus, the admin-
istrator at first received a weekly expense payment of $50, but from July 1, 1963, was
paid a weekly salary of $ 154 in addition to the foregoing expense payment. Be-
fore imposition of the trusteeship only two persons received payments from the
local for services. The business agent received $90 weekly salary, plus $14 for
expenses, and the secretary-treasurer received a weekly salary of $41. Funds for
the additional expenses were derived from the initiation fees obtained from 13
new members admitted to the local by the administrator. In according these persons
membership, the administrator did not abide by the constitution and bylaws of the
local which provide for admission of members upon a favorable report from the
local's investigating committee followed by election to membership by a vote, ostensi-
bly by the local's members.
In the experience of Local 1367 President McCabe, as a member of his organization
since 1942, no Negro has ever applied to it for job referral. He maintained that if a
Negro were to apply he, as president, "would have to give him consideration within
the law," the same as any other person .6 Questioned how his organization could
possibly refer a Negro to a job in an otherwise solid gang of white persons in view
of the contractual provision calling for solid white or Negro gangs, he testified,
"Well, I would feel that if that part of the contract were illegal, we wouldn't be
violating anything." On the other hand, Local 1368's president, Tisdale, related an
incident in 1961 when his organization filled out a gang of Negroes with two white
longshoremen. When the mixed gang appeared on the dock Local 1367's president
at the time, T. T. Curry, protested to the then Local 1368 President Kirby that the
integrated gang, violated the contractual requirement for solid gangs. Homer
White, Local 1367's business agent at the time, recalled Curry's protest to Kirby.
He inconsistently testified first that Kirby had protested because of the integration
of the gang, and then testified that he did not protest for this reason but because
Local 1368 had filled out its gang by procuring men from the unemployment office
while there were Local 1367 longshoremen available. His confusion does not permit
reliance on his testimony. I credit Tisdale's account that Curry had objected to the
integration by Local 1368 of its gang because this was forbidden by the contract.
Although, as stated , Locals 1367 and 1368 were created as racially segregated
unions, there are no constitutional, charter or bylaw, provisions preventing either
from accepting in membership persons regardless of race. Nevertheless , no' white
person has ever applied to Local 1368 for membership, nor has a Negro applied
to Local 1367. Racial segregation of these locals is not unique within the District.
Although there are no ILA or District organic provisions compelling it, all locals
within the District from Lake Charles, Louisiana , to Brownsville , are racially
segregated. Negroes comprise 75 to 80 percent of the membership of these locals.
Local 1368 has never sought to become integrated. I do not regard this cir-
cumstance as proving a desire to remain segregated . Nor do I find such desire
established by the document dated April 23, 1963, signed by its members denoting
their intention to file the charge in this proceeding in order to obtain an equal
division of work with Local 1367.
Relative to the defense that the 75-25 percent division relates equitably to the
numbers of available white and Negro workers in the area , I have noticed, as
requested, that the 1960 United States Census shows that in Cameron County, Texas,
there are 45,857 male workers 14 years of age or older, and, of these, 45,366 are
white and 491 are not white.
Counsel for Local 1367 asserted at the hearing that the 1950 quota agreement
made with Local 1368 was intended to provide work for Cameron County, Texas,
residents . He maintained then and in his brief that the agreement was breached
by Local 1368 which imported Negroes from localities outside Cameron County.
This assertedly was done to supplement the local labor pool which was insufficient
to man all the jobs of the 25 -percent share of the work allocated to Local 1368.
Thus, according to the analysis of Local 1367 President McCabe, of 425 persons
who sought referrals through Local 1368 from 1950 through 1962 only 74 listed
addresses which indicated they were Cameron County residents .7 McCabe's analysis
9 McCabe claimed that referrals by Local 1367 are governed by its seniority system based
on years of employment through Local 1367 and Cameron County residence. Asked
whether this system had been operative before 1963, he replied it had in that year for the
first time been put in writing but that no change was thereby made.
7 Among the 74 were 35 persons who were members of Local 1368. The total member-
ship of the organization is 65. The balance of the membership, in McCabe's opinion, did
not show bona fide Cameron County addresses.
LOCAL 1367, INT'L LONGSHOREMEN 'S ASSOCIATION 913
showed further that in 1963 up -to the time, of the hearing 171 persons had sought
referrals from Local 1368 and that of these only 43 persons could with certainty
be regarded as Cameron County residents. Local 1367 Business Agent Beene
testified that 2,246 persons had sought referrals from Local 1367 from 1953 through
1962 and that of these all but 120 were Cameron County residents. McCabe
,testified that in 1963 up to the time of the hearing 460 persons had applied to Local
1367 for referral and all but 6 resided in the county.
The longshore work at the Cameron County ports is seasonal. One of the em-
ployer members of the Association, F. A. Lallier, testified that during the slow
season Local 1368 encounters difficulty providing men to fill out its quota of gangs
whenever there is a "flurry" of business. Local 1367, he maintained, always has
enough men in the slow season Local 1368's acting business agent, the aforemen-
tioned Lee Smith, testified he normally can provide enough longshoremen to fill
his organization's quota. Although Local 1368 members may be working out of
the area during the slow season to supplement their earnings , he can on short
notice summon them and they will return in sufficient number ready to work
on the docks.
Section 8 (b)(1)(A)
It is now axiomatic that an exclusive collective -bargaining representative is
obligated by the Act fairly and impartially to represent all the employees for which
it is the representative . The Wallace Corporation V. N.L.R .B., 323 U .S. 248,
255; Hughes Tool Company v. N.L.R .B , 147 F. 2d 69 , 74 (C.A. 5). Furthermore,
the Supreme Court has held in the Steele, 8 Wallace ,9 and Tunstall 10 cases, and the
Board has so recognized in Larus 11 and Hughes , 12 that the fair and impartial repre-
sentation which the bargaining agent is duty bound to give all whom it represents
does not permit unequal and discriminatory treatment of members of the bargain-
ing unit in matters of employment on the basis of race, color , or creed.
Proceeding from the foregoing established principles , the Board recently, in
Miranda Fuel Company , Inc., 140 NLRB 181, interpreted Section 7 of the Act
as guaranteeing the right of employees "to be free from unfair or irrelevant or in-
vidious treatment by their exclusive bargaining representative in matters affecting
their employment ." The Board thereupon declared that "Section 8 (b)(1)(A) of
the Act accordingly prohibits labor organizations , when acting in a statutory capac-
ity, from taking action against any employee upon considerations or classifications
which are irrelevant , invidious or unfair ." Although the Board 's Order was denied
enforcement by the United States Court of Appeals for the Second Circuit , decided
December 11, 1963, Docket No . 26232 [326 , F. 2d 172], only one of the three
judges who participated in the case took a position on the 8(b)(1)(A ) issue. The
General Counsel theorizes in the instant case that the maintenance and enforce-
ment by the District and Local 1367 of the contractual provisions for the 75-25
percent division of work between Locals 1367 and 1368 constitute unlawful conduct
by the joint collective -bargaining representative for which the District and Local
1367 are responsible , because these provisions discriminate against a class of em-
ployees in the represented unit (Negroes who must unequally with the white em-
ployees seek job referrals through Local 1368 ) on the irrelevant, invidious and
unfair basis of race and that these labor organizations thereby have violated and
are violating Section 8 (b) (1) (A) of the Act . I agree.
The record permits no challenge to the claim that employees seeking referral to
longshore jobs from Local 1368 are in the bargaining unit for which the ILA, the
District , and the 26 local unions at the ports from Lake Charles , Louisiana, to
Brownsville , Texas, are the joint exclusive representative , and that Local 1367 is
one of those local unions. It is further incontestably shown that the contract with
its extensions covering these unit employees is between the Association and the
joint bargaining representative . The banding of all these labor organizations for
the common purpose of negotiating the labor contract constitutes them joint ven-
turers and , as such , each is jointly and severally responsible for the collective action
of the joint representative . If the contract and its maintenance and enforcement
infringe the Act, each constituent member of the joint bargaining representative,
including the District and Local 1367, is a violator of the Act . That only the Dis-
8 Steel v . Louisville & Nashville Ratilroad Co., et at., 323 U.S. 192, 202.
9 Supra
10 Tunstall v. Brotherhood of Locomotive Firemen & Engonemen , 323 U S 210.
Il Larva & Brother Company Inc 62 NLRB 1075
leHualies Tool Company, 104 NLRB 318 .
760-5 7 7-65-v of 148-59
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trict and Local 1367 have been charged in this case and therefore are the only
Respondents named in the complaint does not require its dismissal. Had all the
members of the joint representative been charged and named as Respondents, find-
ings of violations of the Act could also have been made against them. That they
were not does not invalidate the proceeding against the District and Local 1367.
While the ILA and the other local unions not named herein are proper parties, they
are not indispensable parties. As explicated below in The Remedy section of this
decision , an appropriate remedy is feasible based on action which the District and
Local 1367 shall be directed to take.
Local 1368 is racially segregated, not through choice but by compulsion. This
fact is unaltered by the absence of ILA, District, or local constitutional or other
regulatory provisions compelling racial segregation in local unions. The evidence
is clear and uncontroverted that Local 1368 would not have received its charter
in 1934 had it not agreed to exist as a union of Negro members only, just as Local
1367 was required to be a union of white members only. There is no reason to
doubt that what was thus required when these unions were first chartered is still
the condition governing their existence . Everything which has transpired within
the framework of the District, as evidenced by the documented reports of its con-
ventions and committee studies, the contract with the Association, and the admis-
sions of District President Massey, reflect that segregation in membership of locals
by race within the District from Lake Charles to Brownsville is a uniform condition.
I stated at the hearing, and, because I have been so reminded by brief from Local
1367, I repeat that in this proceeding the statutory validity of the mere racial
segregation of membership in the District's locals has not been raised. This cir-
cumstance is relevant only to the extent that such racial segregation coupled with
other conduct, as alleged in this case , infringed statutory rights of employees. I
proceed to a consideration of such other conduct and how together with the racial
segregation of Negroes in Local 1368 it resulted in the violations alleged by the
complaint.
While the labor contract with the Association does not set out the 1950 work-
sharing agreement between Locals 1367 and 1368, the reference in it to the "pro-
portion of work as agreed upon by the district office of the ILA" is an obvious
incorporation into the contract of the terms of the agreement . It means that by
the contract , as stated in the agreement, the longshore work at the Cameron County
ports is to be allocated on the basis of 75 percent to Local 1367 and 25 percent
to Local 1368. This disparate distribution is prima facie discriminatory and no
facts have been presented by the Respondents to show otherwise. Because of their
race, Negroes are denied the opportunity to fill more than 25 percent of all the
jobs allocated to Locals 1367 and 1368. The plain language of the contract reveals
that it would be futile for a Negro to seek referral through Local 1367 notwith-
standing the insistence of its president, McCabe, that a Negro applicant would
receive the same consideration as any other person . McCabe could not accord
equal consideration without a breach of the contract requirement that longshore
gangs be solid white or Negro . If, as proved, Local 1367 had protested and pre-
vented Local 1368 's one attempt to breach this requirement by mixing a gang, how
can I be persuaded that Local 1367 would itself similarly disregard the contract?
I am not. Furthermore, it is conceded that the Respondents are in fact maintain-
ing and enforcing the contract, and I construe this concession to mean the contract
in its entirety. Thus, inevitably Negro applicants are limited to the one-quarter
share of the work which the contract allocates to Local 1368.
I find no mitigation of this apparent discrimination in the statistics developed
by the Respondents purporting to show that the 75-25 percent quotas equitably
distribute available work on the basis of existing numbers of white and Negro em-
ployees in the area. The census figures indicating an overwhelming white male
working population as opposed to the Negro male workers in Cameron County
shed no probative light on the actual numbers of Negro longshoremen who, absent
the restrictive 25 percent quota, would seek job referrals from Local 1368. As-
suming, without accepting, the validity of quotas however accurately they may
relate to numbers of job seekers, there has been no objective demonstration by
the defense that the 75-25 percent quotas represent a perfectly proportionate job
distribution among all employees . Without such perfection there is necessarily
same degree of discrimination. It could hardly be imagined that there has been
no fluctuation in the ratio of white and Negro longshoremen seeking employment
through both locals since the quotas were established in 1950. Surely, the quotas
were from time to time less than perfect and hence discriminatory. Of course
this must have happened and will on almost any given day or hour of any day.
LOCAL 1367, INT'L LONGSHOREMEN'S ASSOCIATION 915
Even if the quotas could by some mathematical wizardry be adjusted from day to
day or hour to hour as the numbers of workers in the racial groups vary, the accom-
plishment of such adjustment may not reasonably be expected, for the 1950 agree-
ment, and hence the contract with its current extension, provides that the quotas
shall not be changed without the "mutual consent of all parties concerned." This
necessarily requires the consent of Local 1367 which its president has emphatically
declared will never be given. It is useless in the face of this clear fact even to
probe the remote possibility that relative numbers of white and Negro employees
could in some unfathomable way ever in this case be a valid factor in setting
nondiscriminatory quotas.13
There is no evidence to support any claim that the 1950 quota agreement com-
mitted Local 1368 to prefer Cameron County residents in filing its 25-percent
quota. I doubt whether Local 1367 ever applied such criterion in referring ap-
plicants to jobs. But whether it did is inconsequential. It had no authority by
agreement or otherwise to require Local 1368 to follow suit. Thus, I perceive
no significance in the statistical studies presented by Local 1367 to show that large
percentages of numbers or persons referred to jobs by Local 1368 did not have
bona fide Cameron County resilience. Whether these persons lived in Cameron
County or elsewhere does not affect their status as employees in' the bargaining
unit which they aquired when they received employment through Local 1368. The
duty of their bargaining representative to represent them fairly is not dependent
upon their residence but their inclusion in the unit.
The Respondents can find no defense in their contention that the 1950 agreement
was voluntarily made by Local 1368 and that that local has in the ensuing years
aquiesced in and ratified jurisdiction over work quotas thereby established. In
the first place the facts clearly show that the quotas were decided upon by a sub-
committee of the District's executive board which ultimately "ordered" the signing
by the locals of the agreement embodying these quotas. Furthermore, the record
convincingly shows the frustrated attempts by Local 1368 up to the filing of the
charge in this case to secure revision of the quotas by the District and Local 1367. I
would not be persuaded that the conduct of the Respondents which unlawfully
discriminated against represented Negro employees is defensible even if Local 1368
had voluntarily joined in or ratified that conduct. As a matter of fact it did not.
Nor may the Respondents obtain exoneration by shifting responsibility for the
1950 agreement to the ILA. Again, the facts disclose that the agreement is the
handiwork of the District which called upon the parent organization to force accept-
ance of the agreement by Local 1367 when that organization resisted. This step
was obviously necessitated because the strenuous opposition of the local required
the parent's exercise of the authority which it, not the District, possessed to take
over the administration of a rebellious local and to run its affairs wtih a trustee.
In any event, it matters not in this case which labor organization was initially
responsible for the creation and imposition of the quotas on the unwilling or even
willing locals. What counts is the fact that the 1956 contract and the 1959 and
1962 extensions of that contract by the joint bargaining r`epresentative incorporated
these quotas and that, as above stated, the District and Local 1367 are jointly and
severally responsible for these actions and for the maintenance and enforcement of
these quotas now established by contract.
Because the quota provisions in the contract unfairly deprive employees in the
bargaining unit of an equal opportunity with all other represented employees to
obtain available longshore work, and because this inequality of opportunity is based
upon the irrelevant, invidious, and unfair consideration of race, I find, in accord
with the Board's Miranda principle, that the District and Local 1367, by maintaining
and enforcing the foregoing contract provisions, have failed to comply with their
duty to represent all employees in the bargaining unit fairly and impartially, and
thereby violated Section 8(b) (1) (A) of the Act.
I further find that by maintaining and enforcing the no-doubling arrangement
forbidding the assignment of white and Negro gangs to work together in ship hatches
the District and Local 1367 have violated Section 8(b) (1) (A) of the Act. I am
persuaded by the testimony of the General Counsel's witnesses that the arrangement
places an additional earnings limitation on Negro longshoremen seeking referral
to jobs from Local 1368. Here, also, the discrimination against these employees
is based on the irrelevant, invidious, and unfair consideration of race. Although
Is It is possible as Local 1367's brief states, that "if anything, taking twenty-five per-
cent of the work from 1367 and giving it to 1368 discriminated against Local 1367"
The danger and futility of quotas is thus exposed. The Act is violated regardless of who
is the victim of discrimination.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it has not been shown that the arrangement was expressly negotiated by the joint
bargaining representative with the Association it has 'nevertheless been accepted
by both parties as a condition of employment for the affected employees as though
they had bargained for it. Any other conclusion would be unrealistic in the face
of the conceded facts that the arrangement has endured for approximately 13 years,
and was conceived and instigated by the ILA special representative and the District's
president concomitantly with the 1950 quota agreement. No party concerned with
these quotas or conditions of employment of the unit employees could during all
these years have been unaware of the existence and operation of the no-doubling
agreement. In these circumstances I must regard the arrangement as a condition
which the joint bargaining representative maintains and enforces with the Associa-
tion in its capacity as representative for the affected employees. Because of the
discrimination by their representative against the Negro employees seeking referral
from Local 1368 in the manner stated, I find that the joint bargaining representative,
and consequently the District and Local 1367, have failed in violation of Section
8 (b) (1) (A) to abide by the duty to represent all employees in the bargaining unit
fairly and impartially.
From the credited testimony of the General Counsel's witnesses, I find that the
District's initiation of action with the ILA against Local 1368 to impose a trustee
or administrator over its affairs and to strip its officers and membership of their
normal authority to run the business of their organization, was an act- of reprisal
against the local for filing the charge in this case with the Board, and was further
intended to force the local to withdraw the charge. That the District's action may
have been pursuant to the constitutions of the ILA and Local 1368 does not excuse
its conduct. By this conduct the District restrained and coerced employees in viola-
tion of Section 8(b) (1) (A) of the Act.
Section 8 (b)(2) -
The Act provides in Section 8(b) (2) that it shall be an unfair labor practice for a
labor organization to cause or to attempt to cause an employer to discriminate
against an employee in violation of Section 8(a)(3). The specific unlawful con-
duct attributed by the General Counsel to the District and Local 1367 is their
refusal to "correct their discriminatory practices and policies based on racial and
membership considerations." This refusal, according to the General Counsel,
"caused the continuance of the complained of conditions" in the case, presumably the
discriminatory quota provisions of the contract applicable to Local 1368. The
General Counsel's theory, as I understand it, asserts that the application of the
75-25-percent quotas in the contract, based on race and union membership, dis-
criminates against employees in violation of Section 8(a)(3) of the Act; that it was
within the means of the District and Local 1367 to accomplish a termination or
modification of this discriminatory condition; that they were requested by Local
1368 to do so but refused, and that by such refusal they caused the employer (the
Association) to continue the discriminatory condition in violation of Section 8(a) (3 ),
and that they thereby violated Section 8(b)(2) of the Act. I do not rely on the
General Counsel's factual presentation or his theorization in concluding that the
Respondents violated Section 8(b)(2) of the Act. I rely instead on a different
approach, based on litigated facts, which shows more directly that the Respondents
are responsible for the inclusion of the discriminatory quotas in the contract and
their maintenance and enforcement.
The documentary record of the District's proceedings at its forty-first annual con-
vention, adverted to in the earlier recital of facts, reveals clearly that the Associa-
tion was not involved in the formulation of the work-sharing quotas for Locals
1367 and 1368. Nor is there any evidence to show that the Association had any
interest in the establishment of these quotas or their inclusion in the 1956 contract
and the 1959 and 1962 extensions of that contract. I infer from the facts in this
case that the inclusion of the quotas in the contract is attributable to the special
interest and instigation of the joint bargaining representative of the covered em-
ployees. I find that as the joint bargaining representative was the proponent of
the quota provisions in the contract it caused the Association to establish them as a
condition of employment affecting the Negro longshoremen referred by Local 1368.
The contract in evidence states on its covering page that the' 1962 extension was
actually accomplished on January 25, 1963, approximately 3 months before the
filing of the charge in this case on April 29, 1963. It is, therefore, proper within
the limitations of Section 10(b) to look to the conduct of the joint bargaining repre-
sentative at the time of the last extension to determine whether the Respondents at
that time infringed the Act.
LOCAL ,1367, INT'L LONGSHOREMEN'S ASSOCIATION 917
The General Counsel relies on the Board's Miranda decision, supra, as precedent
for a finding that the Respondents by their conduct violated Section 8(b) (2). The
General Counsel has excerpted from the majority opinion in Miranda the statement
that a union violates Section 8(b)(2) and an employer Section 8(a)(3) when "for
arbitrary or irrelevant reasons or upon the basis of an unfair classification the union
attempts to cause or does cause an employer to derogate the employment status of
an employee." This generalization provoked disagreement from the Board minority
in Miranda which pointed out that the literal language of Section 8(b) (2) and
8(a)(3) and controlling Supreme Court cases, "require something more than dis-
parate treatment based upon `arbitrary,' `irrelevant,' or `unfair' criteria. The 'some-
thing more' is that the discrimination must be `to encourage or discourage member-
ship in any labor organization."' What generated this difference among the Board's
Members is the Supreme Court's decision in Local 357 14 which commented at
length on the meaning of the Court's Radio Officers 15 holding on which the Board
majority in Miranda relied in postulating the foregoing excerpted principle and in
reaching its conclusion in the case that Section 8(b)(2) and 8(a)(3) had been
violated.
The Board minority in Miranda was critical of the majority holding because it
assertedly reasoned to a conclusion that 8(b)(2) and 8(a)(3) had been violated
without record evidence that "the action of the Union or the Company was motivated
by a desire to encourage or discourage union membership." The minority main-
tained that the majority had substituted for such essential evidence an inference of
motivation to encourage or discourage from the circumstance that "such desire .
was a `foreseeable' result of the Union's conduct." This, claimed the minority, dis-
regarded the Supreme Court's admonition in 8(b)(2) and 8(a)(3) cases that "there
must be evidence in the record-upon which the Board can reasonably conclude
that the real purpose" for the action which affects the status of employees is to en-
courage or discourage union membership. The Board's majority opinion took note
of this criticism and insisted that it had adhered to the Supreme Court's holdings in
Radio Officers and Local 357. It said:
As we read Local 357, the Supreme Court did not overrule its holding in
Radio Officers that union membership is encouraged or discouraged whenever a
union causes an employer to affect an individual's employment status. What it
does hold, in our opinion, is that an 8(a)(3) or 8(b)(2) violation does not
necessarily flow from conduct which has the foreseeable result of encouraging
union membership, but that given such "foreseeable result" the finding of a
violation may turn upon an evaluation of the disputed conduct "in terms of
legitimate employer or union purposes." Unlike our colleagues, we do not
interpret the Court's opinion as permitting unions and their agents an open sea-
son to affect an employee's employment status for any reason at all-personal,
arbitrary, unfair, capricious, and alike-merely because the moving considera-
tion does not involve the specific union membership or activities of the affected
employees. Our colleagues however, miss the essence of our position when they
view our present decision as resting on the theory rejected by the Supreme Court
in Local 357.
Enforcement of the Board's Miranda 8(b)(2) and 8(a)(3) findings was denied in
a split decision by the United States Court of Appeals for the Second Circuit, de-
cided December 11, 1963, Docket No. 26322. Judge Medina's opinion, with con-
currence by Chief Judge Lumbard as to the 8(b)(2)-8(a)(3) issues, observed that
Local 357 held:
It is necessary in a particular case to show that the acts complained of were
done with the unlawful intent and purpose of encouraging employees to join the
union. It is not enough merely to show that the employer discriminated among
employees at the behest of the union. An unfair labor practice has been com-
mitted only if the discrimination is deliberately designed to encourage member-
ship in the union.
There is no necessity for preoccupation with the differing views concerning Miranda
and the Supreme Court's holding in Radio Officers and Local 357. I can, without
reliance on the Board's generalizations in the Miranda majority opinion to which I
14 Local 557, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Los Angeles-Seattle Motor Empress ) v. N.L.R B., 365 U.S. 667.
15 The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull
Steamship Company ) v. N L.R.B , 347 U S. 17.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been referred by the General Counsel, resolve the 8(b) (2) issue before me. In
concluding that the Respondents herein violated Section 8(b)(2) I rely on the
Supreme Court's decision in Gaynor News Company, Inc. v. N.L.R B., 347 U.S. 17,
as to which there have been no conflicting postdecisional views to cloud its meaning
and present application. Indeed, Mr. Justice Harlan, in his concurring opinion in
Local 357, with Mr. Justice Stewart joining, included certain clarifying observations
as to the meaning of Radio Officers using Gaynor's facts and law to illustrate and
emphasize. What he said there concerning Gaynor is particularly appropriate for
application here. Mr. Justice Harlan elaborated upon what he deemed to be the
Board's misconception of the Court's holding in Radio Officers. He noted that a
"mere showing of foreseeable encouragement of union status is not a sufficient basis
for a finding of violation of the Statute . that a finding of violation of Section
8(a)(3) or Section 8(b)(2) requires an affirmative showing of a motivation of en-
couraging or discouraging union status or activity." He observed, however, there
are exceptions to the necessity for a specific finding of motivation to discourage
union membership. These exceptions include absence in the record of proof by the
employer "of a nondiscriminatory purpose," or a "significant business justification"
for his act, or, "if a union or employer is to be permitted to take action which sub-
stantially-though unintentionally-encourages or discourages union activity, union
or employer ends served by the action must not only be of some significance, but
they must also be legitimate, or at least not otherwise forbidden by the National
Labor Relations Act." The Court's decision in Gaynor was utilized by Mr. Justice
Harlan to exemplify the meaning of his last stated exception. He said concerning it:
In Gaynor an employer, who pursuant to a nondiscriminatory business end of
paying the least wages possible, agreed with. the union which was the statutory
representative of the employees to give certain benefits only to union members,
was prevented from asserting the justifying business reasons for thus encourag-
ing union membership because of his complicity in the union's breach of its
duties as agent for all the employees. Indeed, the fact that a nondiscriminatory
business purpose forbidden by the Act cannot be used by an employer to justify
an action which incidentally encourages union membership seems to me to be
the true basis of the Court's holding in Radio Officers that an employer violates
Section 8(a)(3) when a union forces him to take action to encourage union
membership.
I am satisfied that Gaynor, particularly as the Court's decision in that case is ex-
plained by Mr. Justice Harlan, is controlling precedent for the 8(b)(2) issue of the
instant case and compels the conclusion that this statutory section was violated by
the Respondents herein.
As to whether the quota provisions of the contract, concededly maintained and en-
forced by the parties thereto, tended to encourage or discourage employees within
the meaning of Section 8(a)(3), there can be no doubt. Radio Officers reflected
that "it is common experience that the desire of employees to unionize is raised or
lowered by the advantages sought to be attained by such action." The unequal
benefits received under the contract by white employees through Local 1367 and by
Negro employees through Local 1368 tend, in the light of "common experience," to
encourage adherence to the former and to discourage adherence to the latter.
Negroes confronted by apparent discrimination against them reasonably may be ex-
pected to conclude that they gain no advantage by membership in or adherence to
the disfavored union. Poignantly, they must ask why they should belong to and pay
dues to a union which fails to secure for them work opportunities equal to those de-
rived from the other union whose white members have more bountiful benefits.
Realistically, they doubtless concede the lack of advantage of belonging to and pay-
ing dues to their union.
The discriminatory feature of the 75-25 percent quotas is so apparent to the fore-
going employees that it must also be found that the encouragement or discourage-
ment of union membership to their employer a natural and foreseeable consequence
of the inclusion of these quotas in the contract. While the record does not show
specifically that the Association intended by the inclusion of these quotas-and their
maintenance to encourage or discourage the union membership of its employees, this
exact evidence is not a necessary predicate to the finding of an 8(b)(2) violation
herein. The Gaynor principle explicated by Mr. Justice Harlan in Local 357 dis-
penses with need for such proof.
As stated, if the action by union or employer, intentional or not, encourages or
discourages union activity, the union or employer end served by the action must be
legitimate or otherwise not forbidden by the Act. In Gaynor the union breached
LOCAL 1367, INT'L LONGSHOREMEN'S ASSOCIATION 919
its duty to act as agent for all represented employees by securing benefits only for
union members. Here the joint bargaining representative also breached its duty as
bargaining representative for all employees in the unit, Negro as well as white, by
securing greater benefits for the white than for the Negro employees for reasons
which were irrelevant, invidious, and arbitrary and thereby, as found, violated Sec-
tion 8(b)(1)(A) of the Act. In Gaynor, the employer's complicity in the union's
breach of duty as bargaining representative was accepted by the Court as reason for
sustaining the Board's denial to the employer of opportunity even to offer as a de-
fense to his conduct that he was motivated by a legitimate business purpose and not
a desire to encourage or discourage union activity. Here, had the Association simi-
larly offered to show a nondiscriminatory purpose or significant business justification
for its acts, its complicity with the joint bargaining representative would have been
reason for excluding such explanation. Actually, the Association, though a party to
the proceeding with notice, did not enter an appearance and there was consequently
no explanation offered for its conduct.
Having found that the joint bargaining representative, and thereby the District
and Local 1367, instigated the execution on January 25, 1963, of the contract's 1962
extension, including the discriminatory work quotas, that the Association was thereby
caused to execute and to maintain and enforce the contract containing these provi-
sions which naturally and foreseeably encouraged or discouraged union activities of
its employees, and that no legitimate union or employer justification for these acts
has been shown, I find and conclude that the Respondents by their conduct violated
Section 8(b)(2) of the Act.
Section 8(b)(3)
The General Counsel and Charging Party contend that the Respondents violated
the mandate in Section 8(b)(3) of the Act that a labor organization shall not "re-
fuse to bargain collectively with an employer, provided it is the representative of his
,employees subject to the provisions of Section 9(a) " They maintain that the joint
bargaining representative, and hence the Respondents, breached the duty imposed by
Section 8(b)(3) when it made the agreement with the Association discriminating
against Negroes required to seek job referrals from Local 1368 They appear to
reason that Section 8(b)(3) compelled the joint bargaining representative to refrain
from bargaining on any basis which did not accord all the represented employees fair
and impartial treatment with respect to matters affecting their employment.
No theoretical explanation has ben offered in the briefs to support the foregoing
contention except that provided by Professor Archibald Cox, now United States
Solicitor General, in his article in 2 Villanova Law Review 151. Acknowledging that
the definition in Section 8(d) of the Act of bargaining collectively within the mean-
ing of Section 8(b)(3) may suggest that the union's duty under that section runs
only to the employer,is and that there is no revealing legislative history, he neverthe-
less concludes that a union's "breach of the duty to bargain fairly (in behalf of all
the represented employees) should be held an unfair labor practice." This view is
predicated on his belief that "a congressman who was sympathetic to the policies of
the amended act, who intended to impose a duty of fair representation and who fore-
saw the present issue, would have made breach of the duty an unfair labor practice
remediable by the NLRB" because of the following four considerations:
(1) Breach of any other obligation imposed by the NLRA, upon employer or
bargaining representative, is an unfair labor practice This is true of the gen-
eral duty to bargain collectively. There was no reason for making a single nar-
row exception to the general policy of reliance upon administrative proceedings.
(2) Although the issues are usually distinct, separating the issues raised by a
single course of bargaining may be so artificial as to produce gaps or conflict
and inconsistency. For example, whether an employer has violated his duty to
bargain in good faith may depend upon whether the union's proposals violate
its obligation to employees in the bargaining unit
(3) Even though the legal issues may sometimes have the broad character of
constitutional questions familiar to the courts, the administrative process offers
several advantages similar to its values in familiar unfair labor practices cases.
Persons thoroughly familiar with industrial practices may be a little wiser in
appraising the evidence, and applying general'standards and even in pricking out
16 Section 8(d) provides in part "to bargain collectively is the performance of the mutual
.obligation of the employer and the representative of the employees to meet at reasonable
,times and to confer in good faith with respect to wages, hours, and other terms and con-
ditions of employment . . . .
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new generalizations-new law-for future cases. Precedents are easier to dis-
tinguish and even to overrule. Problems can sometimes be solved more easily
by conference and compromise prior to formal proceedings. A single agency is.
better equipped than scattered judges to project the development of standards of
fair representation which will protect minorities without constricting normal;
negotiations.
(4) The General Counsel prosecutes complaints of unfair labor practices be-
cause of the general public interest in effectuating the national labor policy.
The public welfare equally requires action to prevent unions from using their
statutory powers in order to gain unfair advantage for a dominant faction.
Private suits are not an effective sanction unless financed by an organized group.
Individual victims of unfair bargaining seldom obtain the skilled legal assistance
necessary to bring litigation to a successful conclusion in a novel field of law.
Professor Michael I. Sovern of Columbia University, in an article published in,
62 Columbia Law Review, page 563, volume 62, was critical of the view expressed by
Professor Cox that a breach of the duty to represent fairly should be held to be a
violation of Section 8(b) (3). Concerning the foregoing article by Professor Cox
he said:
The difficulty with this view is that the context in which the words "confer in'
good faith" appear gives repeated evidence of concern with the duties of em-
ployer and union to each other, but no evidence at all of concern with the duty
of unions to those they represent. For one thing, as Cox himself noted, the
statute speaks of the "mutual obligation of the employer and the representative
of the employees," thereby implying that obligations to others are not the sub-
ject of this provision. For another, the duty to "confer in good faith" is imposed
upon employers and unions alike. On its face, then, it imports comparable
obligations and, of course, an employer can have no obligation comparable to
the duty of fair representation. That the duty of unions to bargain collectively
was intended merely to parallel that of employers is also suggested by the fact
that 8(b)(3), which imposes the duty on unions, was added to the National
Labor Relations Act as an obvious counterpart to section 8(a)(5), which im-
poses it on employers. The duty to bargain collectively, then, probably does not
include the duty to represent fairly.
I am persuaded by Professor Sovern's logical analysis that a labor organization's
duty to bargain under Section 8(b)(3) runs to the employer, and that there is no,
duty under this section of the Act by a labor organization relative to the employees
which it represents which if breached requires a finding that this section of the Act
has been violated. Accordingly, I find that the Respondents have not violated Sec-
tion 8(b)(3) of the Act and shall recommend dismissal of this allegation in the
complaint.
In reaching the foregoing conclusion I have considered certain legislative history to-
which reference was made in the brief amicus filed by the American Civil Liberties
Union, in the Hughes Tool Company, Case No. 23-CB-429, presently being reviewed
by the Board on exceptions-filed to the decision of a Trial Examiner. It was noted
in that brief that Congressman Hartley in introducing H.R. 3020, the bill authored
by him in 1947 to amend The Wagner Act, provided in-its Section 8(b)(2) the
following:
(b) It shall be an unfair labor practice for an employee, or for a representa-
tive or any officer of a representative, or for any individual acting for or under
the direction of a representative, or for or under the direction of any officer
thereof .. .
(2) in the case of a representative acting and currently recognized by the
employer, or certified under Section 9, as the representative of employees,
to refuse to bargain collectively with the employer ... .
Speaking on the floor of the House, Congressman Hartley stated after H.R. 3020'
was reported out of committee, and referring particularly to the foregoing Sectiorr
8(b)(2):
Now let us see what is in this Bill of Rights. Let us see if it oppresses the work-
ing man , or if it liberates him and gives him a voice, free of fear, in the affairs,
of a union that has over him the power that The National Labor Relations
Board gives to his exclusive bargaining agent. This Bill guarantees to him ... .
LOCAL 1367, INT'L-LONGSHOREMEN' S ASSOCIATION 921
Fourth . The right to require the union that is his bargaining agent to repre-
sent him without discriminating against him in any way or for any reason, even
if he is not a member of the union-Section 8(b) (2).
The 8(b)(2) section in H.R. 3020 concerning which Congressman Hartley com-
mented ultimately became, in effect, the 8(b)(3) section of the present Act, as
amended. Accordingly, the brief amicus argues that Section 8(b) (3) should be con-
strued to mean that a labor organization violates this provision when it fails fairly to
represent all employees for which it is the bargaining agent.
I am not persuaded by the foregoing meager reference that Congress intended Sec-
tion 8(b) (3) to have the effect proposed by the brief. Judge Medina, in his opinion
in Miranda Fuel Co., Inc. (C.A. 2), decided December 11, 1963 (Docket No. 26232),
had before him the same legislative history and dismissed its suggested significance
with the following comment:
The Legislative History of the NLRA is not particularly illuminating on the
issue before us. If anything the various expressions of Congressional intent
would seem to indicate that the duty of the union to bargain as set forth in Sec-
tion'8(b) (3) is merely the counterpart of the employers to bargain, expressed
in Section 8(a)(5), and does not in this context impose an additional duty of
fair representation: Cf. 93 Cong. Rec. 4021 (1947), 2 NLRB, Leg. Hist.
L.M.R.A., 1947 at 1025. Moreover, we think the remark of Congressman
Hartley, 93 Cong. Rec. 3425 (1947), 1 NLRB, Leg. Hist. L.M.R.A., 1947 at 616,
to the effect that Section 8(b)(3) requires the union to represent the working-
man (without discriminating against him for any reason, even if he is not a
member of the union), refers rather plainly to discrimination between members
and nonmembers of the union.
I share this view.
I have searched the Legislative History of the Act's 1947 amendments and find
no other comment by Congressman Hartley concerning the 8(b)(2) section in
H.R. 3020 which would lead to a belief that if he had meant this section to create
a duty by a union running to represented employees he maintained this purpose
in pressing for the adoption of the section . Moreover, there is a conspicuous
absence in the exhaustive section by section interpretation and analysis of H.R. 3020
submitted by Congressman Hartley to the House in behalf of the Committee on
Education and Labor, House Report 245 on H.R. 3020, 80th Congress, 1st session.
Concerning Section 8(b) (2) ; the report said:
By Section 8(b)(2), the bill requires a union or other representative that is
acting as and is currently recognized as an exclusive representative of employees,
by an employer, or that is certified as such a representative, to bargain collec-
tively with an employer. The standards and definitions which have been dis-
cussed in relation to Section 2(11) apply in the case of unions, as well as in
the case of employers. The duty to bargain now becomes mutual. This,
the Committee believes , will promote equality and responsibility ' in bargaining.
The definitions of "bargain collectively" and "collective bargaining" contained in
Section 2(11) and the explanation of these definitions in the report convincingly
show that what Congress was concerned with was establishing mutuality of obliga-
tion between employer and union during the bargaining process and in effect set up
standards for good-faith bargaining comparable to if not identical with those pres-
ently included in Section 8(d)' of the Act as amended. Professor Sovern's analysis
and comments concerning the meaning of Section 8(d) in relation to Section
8(b) (3) satisfy me that whatever meaning may be ascribed to the foregoing remarks
by Congressman Hartley to Section 8(b)(3) of the Act as it finally emerged did
not impose upon a union the duty to employees of fair representation ascribed to
it in the brief amlcus.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Association 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 thereof.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
V. THE REMEDY
Having found that the District and Local 1367 have engaged in and are engaging
in conduct violative of Sections 8(b)(1) (A) and (2) of the Act, I shall recom-
mend that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Ordinarily, a backpay remedy is recommended where findings are made of viola-
tion of Section 8 (b)(2). Although the General Counsel and Charging Party
have elaborated requests in their briefs for specific findings and remedies , no men-
tion has been made of a recommendation for backpay. I do not regard this as
an oversight . Rather, I am convinced that they do not believe such remedy is
necessary to cure the fundamental vice in the Respondents ' misconduct , namely,
the denial to employees of equal opportunity in employment for the invidious.
reason of race and of fair representation by their collective-bargaining agent. I,
too, do not believe that a backpay remedy is either necessary or practical in this
.case, and am satisfied that the other remedial action by the Respondents herein
recommended will sufficiently cure the effects of the unfair labor practices to
satisfy the purposes of the Act. Accordingly, no backpay remedy, shall be
recommended.
I will not, as requested by the Charging Party, recommend that there be sub-
stituted for the unlawful 75-25-percent quotas in the contract 50-50-percent quotas
for Locals 1367 and 1368, or any other mathematical quotas for the sharing of work
by employees seeking referral through their hiring halls. I shall recommend no
particular nondiscriminatory hiring system for adoption by the parties, but leave
to them the formulation and adoption of an appropriate method for granting em-
ployees opportunity for work in accordance with the requirements of the Act.
I shall recommend that the District terminate its trusteeship over the affairs of
Local 1368 and restore the conduct of the affairs of this organization to its duly
constituted officials. I shall also recommend that the District reimburse Local 1368
for all expenses incurred by the trustee and paid by or chargeable to Local 1368
in excess of those expenses which would have been normally incurred by this orga-
nization in the management of its affairs . I shall not, as requested by the Charging
Party, recommend revocation of membership of those persons accepted into mem-
bership during the trusteeship , as this is an internal matter which can effectively
be resolved by Local 1368 after autonomy over its affairs has been restored. Nor
shall I specifically recommend payment to the local of an amount equal to the
initiation fees collected by the trustee from new members accepted by him in dis-
regard of Local 1368 's procedures for admitting new members . If, after action by
the duly constituted officers and members of Local 1368, the membership of im-
properly admitted persons is revoked , these persons may be required to look to
the trustee or his principal for restitution of their initiation fees. In any event
all revenues including initiation fees obtained from such new members, shall be
taken into consideration in the general accounting which must necessarily be made
to determine what financial restitution must be made by the District to Local 1368
Upon the basis of the foregoing findings of fact , and upon the entire record in the
caes, I make the following:
CONCLUSIONS OF LAW
1. The Association is an employer engaged in commerce within the meaning of
Section 2( 6) and (7) of the Act.
2. The District and Locals 1367 and 1368 are labor organizations within the
meaning of Section 2 (5) of the Act.
3. By the extension on January 25, 1963, of the 1956 contract with the Associa-
tion and, by the maintenance and enforcement of the provisions in that extended
contract which, in effect , allocate jurisdiction to Locals 1367 and 1368 over 75-25-
percent quotas based on race and union membership of referrals to jobs with the
employer members of the Association, the District and Local 1367 restrained and
coerced employees in the exercise of rights guaranteed by Section 7 of the Act and
thereby violated Section 8(b) (1) (A) of the Act.
4. By the conduct set forth in paragraph 3, above, the District and Local 1367
caused or attempted to cause the employer members of the Association to dis-
criminate against employees in violation of Section 8(a)(3) of the Act and thereby
violated Section 8(b) (2) of the Act.
5. By maintaining and enforcing an arrangement with the Association forbidding
the assignment of gangs of white and Negro employees referred to jobs to work
together in single-ship hatches, the District and Local 1367 have restrained and
coerced employees in the exercise of rights guaranteed by Section 7 of the Act
and thereby violated Section 8(b) (1) (A) of the Act.
DIERKS FORESTS, INC., ETC. 923
6. By causing the imposition of a trustee over the affairs of Local 1368 in
reprisal for the filing of the charge in this case and to compel the withdrawal of
the charge the District restrained and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act and thereby violated Section 8 (b)(1)(A) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The allegation of the complaint that the District and Local 1367 have violated
Section 8(b)(3) of the Act has not been sustained.
[Recommended Order omitted from publication.]
Dierks Forests , Inc. (Treating Plant , D & E Shop and Mill Sup-
ply) and Lumber and Sawmill Workers Local Union No. 3089,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO . Case No. 26-CA-1521. September 11, 1961
DECISION AND ORDER
On April 6, 1964, Trial Examiner Morton D. Friedman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent. had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He further found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the complaint and rec-
ommended dismissal of the complaint as to them. Thereafter, the
Respondent and the General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs.
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 McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
the case, and finds merit in certain of the exceptions of the Respond-
ent. We therefore adopt the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent that they are consistent
with this Decision and Order.
1. The Trial Examiner found, and we agree, that the Respondent
did not discriminatorily reduce the working hours of certain employees
in its D L", E shop in late 1962 and early 1963, in violation of the Act.
In excepting to the findings of the Trial Examiner, the General Coun-
sel relies on the facts that the hours of these employees were reduced
to 40 hours a week soon after the Union was certified on December 10,
148 NLRB No. 92.