Local 872, Longshoremen

National Labor Relations Board - Board Decisions

Mar 24, 1967

163 N.L.R.B. 586 (N.L.R.B. 1967)

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended , we hereby notify our em-
ployees that:
WE WILL bargain collectively upon request with
United Steel Workers of America, AFL-CIO, as the
exclusive bargaining representative of all our
employees in the appropriate unit described below
with respect to rates of pay , wages , hours of
employment and other terms and conditions of
employment , and, if an agreement is reached , embody
such understanding in a signed contract. The
appropriate unit is:
All production and maintenance employees
employed at our Houston , Texas, plant composed
of the Tysco Division , Fastener Division,
Galvanizing Division , and Special Coating
Division , excluding all office clerical employees,
guards , watchmen , and supervisors as defined in
the Act.
SMITH INDUSTRIES, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 6617 Federal
Office Building , 515 Rusk Avenue, Houston , Texas 77002,
Telephone 228-0611.
Local 872 , International Longshoremen's
Association , AFL-CIO and Isaac Morning
and Ernest Clabron . Cases 23-CB-543,
23-C B-545, and 23-C B-648.
March 24, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On November 2, 1966, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
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
163 NLRB No. 69
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions
and brief, and the entire record in these cases, and
hereby adopts the Trial Examiner's findings,'
conclusions, and recommendations, as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Loca1872, International
Longshoremen's Association, AFL-CIO, Houston,
Texas, its officers, agents, and representatives, shall
take the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. Revise the first paragraph of the Trial
Examiner's Recommended Order, which provides
that the action required is to be taken by the
Respondent, "its officers, representatives, agents,
successors, and assigns," by deleting the reference
to "successors , and assigns."
2. Revise paragraph 2(a) by changing "not" to
"no" before "objection," and by deleting the phrase
"or the employment of any other longshoremen."
3. Delete paragraph 2(b) of the Trial Examiner's
Recommended Order, and renumber paragraphs
2(c) through 2(f) as new paragraphs 2(b) through 2(e),
successively.
4. Delete the "NOTE:" paragraph immediately
below the date line at the bottom of the Appendix
attached to the Trial Examiner's Decision.
I The Respondent excepts to many of the Trial Examiner's
credibility findings , which were based in large part on the
demeanor of the witnesses . It is the Board's established policy,
however, not to overrule a Trial Examiner 's resolutions with
respect to credibility unless, as is not the case here, the
preponderance of all the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544, enfd. 188 F.2d 362 (C.A. 3). In his Decision , the Trial
Examiner refers to a prior Board proceeding in which Clabron and
Morning were complainants , but he inadvertently failed to include
the citation thereof, which is Master Stevedores Association of
Texas, Houston Maritime Association , Inc., 156 NLRB 1032.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL M . SINGER, Trial Examiner : This case, with all
parties represented , was heard in Houston, Texas, on
May 4-6 and June 20 , 1966, on the consolidated complaint
of the General Counsel alleging (and answer of
Respondent denying) violations of Section 8(b)(1)(A) and
(2) of the Act.' The parties waived oral argument but filed
briefs, which have been duly considered . Upon the entire
The charge in Case 23-CB-543 was filed by Isaac Morning on
May 20, 1964 ; the charges in the two other cases by Ernest
Clabron were filed on May 26, 1964, and December 16, 1965. The
consolidated complaint was issued March 16, 1966.
LOCAL 872, LONGSHOREMEN
record (as corrected on notice to the parties) and my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS INVOLVED
At all material times, Atlantic & Gulf Stevedores, Inc.,
and Strachan Shipping Company have been members of
Houston Maritime Association, Inc., which, among other
things, negotiates and administers collective-bargaining
agreements on behalf of its members with labor
organizations, including Respondent Union. The two
named member-employers are engaged in the loading and
discharge of vessels in Texas ports, including Houston, the
only port involved in this proceeding.
During the year preceding issuance of the complaint, a
representative period, the Association furnished
stevedoring services valued at more than $500,000, to
steamship companies operating vessels in interstate and
foreign commerce.
I find that at all material times Houston Maritime
Association, Inc., Atlantic & Gulf Stevedores, Inc., and
Strachan Shipping Company have been and are engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 872, International Longshoremen 's Association,
AFL-CIO, is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background; the Issues
1. The prior proceeding
This proceeding is a sequel to Cases 23-CA--1425, et al.,
and 23-CB-428, et al. [Masters Stevedores Association of
Texas, 156 NLRB 1032], in which the Board on
January 18, 1966, adopted with modifications and
additions Trial Examiner Whittemore's Decision of
May 21, 1965. The Board there found, among other things,
that the Union, a respondent in that case, violated Section
8(b)(2) and (1)(A) of the Act by causing and attempting to
cause employers to discriminate against employees by
applying its seniority system so as to give preference to
union over nonunion members in the operation of the
union hiring hall; and by discriminatorily
rejecting-through gang foremen and bolsters (assistant or
acting gang foremen), agents of both the employers and
the Union -six longshoremen's requests for employment
through the hiring hall because of their nonmembership in
the Union? The Board dismissed the complaint insofar as
it alleged discriminatory refusals to hire 12 other
2 The employers (two associations) were found to have violated
Section 8(a)(3) and (1) of the Act
3 The complaint allegations as to 4 of the 12 were dismissed
without objection of General Counsel.
I granted General Counsel's request at the hearing to take
official notice of the Board's findings and conclusions in the above
cases.
5 Trial Examiner Whittemore had recommended dismissal of
the complaint as to all except one charging party, Arthur Perkins
The Board reversed his findings as to five (including Clabron) and
upheld him as to all others (including Morning) Trial Examiner
Whittemore credited Clabron's testimony, but discredited
587
employees3 and concluded that the violations found were
insufficient to support a finding of discriminatory
"practice" in operation of the hiring hall. The Board
further found that the Union violated Section 8(b)(1)(A) by
telling employees that they were refused employment
because they were not union members or because they
filed unfair labor practice charges." _
The complaint in this case alleges that Respondent
violated Section 8(b)(1)(A) and (2 ) by similar coercive and
illegal conduct , including statements and threats to two
employees (Clabron and Morning) that they were not or
would not be hired because they were not members of the
Local or because they filed unfair labor practice charges;
and by attempting to cause and causing employers to deny
them employment because of their nonmembership in the
Union or filing of unfair labor practice charges. The unfair
labor practices under consideration in the earlier cases
occurred during 1961-63. The instant case deals with
unfair labor practices allegedly commencing in January
1964 , and involves 2 of the 18 charging parties in the prior
proceeding-Clabron and Morning.5
2. The hiring practices
At all material times, the Union and certain employer
associations (including Houston Maritime Association)
were parties to a collective agreement in which
Association members agreed to hire Negro longshoremen
employed in loading and unloading of deepsea vessels in
the port of Houston, Texas, through a hiring hall to be
operated and administered by the Union (Local 872),
irrespective of union affiliations The hiring rules provide
for hirings at daily shapeups by gang foremen or bolsters
(assistant or acting gang foremen), members of the Union,
in accordance with a system of seniority.' Prior to the
beginning of 1964, longshoremen were classified "A"
through "D," depending on their years of continuous
longshore service in the Houston area: class A (16 years'
service) had top hiring priority at the shapeups; then class
B (10 years' service), class C (5 years), class D (2 years),
and casuals (less than 2 years' service). At the end of 1963,
the Union adopted a new system of seniority
classifications, highest being "Gold Star" (25 years'
service), then, "AAA" (20-year men), "AA" (15 years),
"A" (10 years), "B" (5 years), "C" (2 years), "D-1" (1
year), and "D" (casuals). According to Respondent's
officials (J. A. Wilson and R. Duncan), because of the
tremendous job of processing data (including social
security records) covering many years of employment, the
Union could not complete the reclassification of all
longshoremen on its rolls until June 1964, so that hirings at
shapeups in January-May 1964 were by both "Gold Star"
and "A" systems.
Under the Union's hiring hall rules, gangs are "picked
up" by gang foremen or bolsters for jobs beginning in the
Morning's It goes without saying that a "prior determination that
a witness is not to be believed is not res judicata " (N L R B. v
Walton Manufacturing Company, 286 F.2d 26, 29 (C.A. 5)) The
Little Rock Downtowner , Inc, 145 NLRB 1286, 1288 , fn 3, enfd
341 F.2d 1020 (C.A. 8)
s White longshoremen are hired through Local 1273, a sister
local
r In the earlier cases the Board found that the gang foremen
and bolsters were agents of the Union as well as of the employers
Contrary to Respondent's contention at this hearing, the evidence
here confirms the validity of this finding.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
morning at 7, 8 , and 10 o'clock, and in the afternoon or
evening at 1, 3, and 7 o'clock, about 45 minutes before
each of those hours. Job applicants station themselves in
designated locations in the hiring hall according to their
classifications ("Gold Star," "AAA," etc.) waiting to be
"put on the book " or selected by the foremen or bolsters
who begin their rounds with the top hiring group ("A"
under the old and "Gold Star" under the new classification
system ) continuing down to the lowest priority group
(casuals ) until they complete their "gangs." The number of
foremen or bolsters participating at a given shapeup
depends on the number of gangs required . A selected
longshoreman willing to work hands over his button and
becomes a member of the gang . A description of the
composition of a crew and of the manner of job
assignments at shipside is set forth in section C, infra.
B. The Alleged Discrimination and Coercive Conduct
Against Ernest Clabron
General Counsel relies on seven instances of alleged
unlawful refusals to hire Clabron at shapeups and five
additional instances of alleged coercive acts against him.8
The alleged illegal acts of each union agent (foreman or
bolster) will be discussed separately.
1. The evidence
a. David Holmes
Clabron testified that Holmes, a bolster for the Smith-
Wallace gang, refused to hire him at the 7 p.m. shapeup on
January 6, 1964, saying that he had "all union men on the
book."9 Checking later at ship, he found that William
Haynes, Jr., a "casual," had obtained a job on the gang.
Clabron held a "D" classification at that time.
Holmes denied the statement attributed to him and
claimed he did not know that Clabron was not a union
member. He explained Haynes' work on the gang as a
replacement for Haynes' father, a "AA" man, whom he
(Holmes) had hired at "shipside." According to Holmes
(and other witnesses for Respondent) it is not unusual for a
hired longshoreman, unable or unwilling to show up at
shipside, to send a substitute. Neither Haynes testified.
b. Robert Lewis
Clabron testified that at the same shapeup (7 p.m.,
January 6, 1964) he was also refused employment by
Robert Lewis, another gang foreman or bolster.io
According to Clabron, Lewis told him that "if I ever asked
him for another job he would cut my throat." Clabron
testified that when he again sought work on April 7, 1964,
Lewis said that "he would stop taking his gang if he had to
give me a job." Finally, he testified that around 11:45 a.m.,
May 25, 1964, Lewis walked up to him in the hiring hall,
and, displaying a pistol and straight razor, warned him that
"if he ever caught [him] on a ship that one of us wasn't
going to make it back." According to Clabron, Lewis
mentioned that "we had the man ... come to the hiring
hall" that morning. The record shows that shortly before
this incident (around 10 a.m.), Tilley (counsel for the
General Counsel in the prior case and this case) visited the
hiring hall (infra, section "C (1)(b)").
Lewis denied all statements and threats . Although
admitting he owned a gun , he claimed it was of a different
type than that described by Clabron and that he kept that
gun at home and not in the hiring hall.
c. Raymond Guillory
Clabron testified that when he asked Raymond Guillory,
a bolster, for a job on March 4, 1964, Guillory told him "to
go down to the Labor Board and ask for a job." Clabron
reported Guillory's remarks to Eddie Johnson, a union
field representative. According to Clabron, although
Johnson examined Guillory's "book" (hiring list), he
walked off without taking action.
Guillory denied the remarks Clabron attributed to him.
He admitted acting as bolster from time to time in 1964,
but denied acting in that capacity or writing "a book that
day for anybody," claiming he was "just a common"
longshoreman or "soldier" in a gang on March 4. He
conceded, however, that he occasionally writes "books" or
picks up gangs for two of his four brothers who are gang
foremen. He also knew that Clabron as well as others had
filed charges against the Union in the earlier case. Records
produced by Respondent purport to show that Guillory had
worked on one ship from 7 a.m. to 12:30 p.m., March 4, as
member of a gang under Foreman R. J. Guillory (whose
relationship, if any, to the witness was not shown) and on
another ship from 1 to 6 under Foreman W. W. Williams.
d. Willie Belcher
Clabron testified that the next day (March 5) he
complained to Johnson concerning his difficulty in getting
to the "D" section (Clabron's then classification) during
shapeups because of "all these card people" (casuals)
standing in that section . According to Clabron, Willie
Belcher, the Union's business agent who overheard the
conversation, told Johnson, "You don't have to talk to that
little Nigger." Clabron said he was talking to Johnson, not
to Belcher. Belcher returned to the nearby union office,
picked up a small revolver, and came back outside.
Johnson "took [Belcher] by the arm and shoulder ... and
held him," whereupon Belcher said he "would kill"
Clabron. Johnson remarked that " it wasn 't worth getting
into trouble" over Clabron.
Johnson recalled a "loud discussion" between Clabron
and Belcher "sometime in April or March" about
Clabron's working on a gang. Although he recalled
Belcher telling him (Johnson), "You don't have to argue
with this man," he denied hearing Belcher call Clabron
names, threatening him, or displaying a gun . According to
Johnson, Belcher put his hands on him (not vice versa as
claimed by Clabron) to keep him away from Clabron and to
get him to go into the office. Belcher similarly testified that
it was he who tried "to stop the argument " between
Clabron and Johnson and called Johnson into the office to
avoid commotion. Although admitting he kept a gun in an
office drawer, he denied displaying it. Belcher admitted
knowing that Clabron was a charging party in the earlier
proceeding.
" At the hearing I granted General Counsel's request to shapeup) include the preceding time interval during which the
withdraw paragraph 80) of the complaint alleging still another men are selected for that shapeup
instance of alleged coercion 10 Two or more foremen may select different gangs at the same
" All references herein to a particular shapeup (e g , 7 p in shapeup
e. A. LeBlanc
LOCAL 872, LONGSHOREMEN 589
Clabron testified that when he asked Gang Foreman Le
Blanc for a job on March 16, 1964, Le Blanc told him he
ought to have his throat cut and "not to ever ask him for a
job again."'t Le Blanc denied this incident, claiming he
did not even know of Clabron before these charges.
Clabron also testified that on May 5, 1964, while talking
to a foreman he overheard Le Blanc say, "if one of the
fellows who had filed charges against the local with the
NLRB would come up shot, that that would stop other
people from running down to the Labor Board." Le Blanc
denied saying this.
Clabron further testified that around 12 or 12:15 p.m. on
December 16, 1965, Le Blanc, after picking up senior men
("Gold Star," "AAA," "AA," and "A") saw him in the "B"
section,12 passed the section without stopping, and headed
for the "C" bracket to complete his gang. Following Le
Blanc to the "C" section, Clabron asked for a job, but Le
Blanc refused, saying, "You're the same black son of a
bitch that took me down to the Labor Board." Clabron
reported the remark to Johnson (the Union's field agent)
who told Le Blanc to place Clabron on the gang. Le Blanc
retorted, "I'm not going to give the black son of a bitch a
job ... because he took me down to the Labor Board. Let
him go back down there." When Johnson asked Le Blanc
if the latter had completed his gang selections, Le Blanc
said, "No, I don't have them all and before I give him a job
I won't even take the gang." Le Blanc then seized the
microphone from Johnson who was directing the hiring,
and started calling the names of the men he (Le Blanc)
already hired. Le Blanc "started cursing again and
pointing his finger" in Clabron's face. Then Clabron said,
"Man, you don't have to point your finger in my face." Le
Blanc drew a 7-inch knife from his back pocket. Johnson
and two other men "were wrestling with him trying to keep
him ... from getting" at Clabron. One man "got his hand
cut" during the scuffle.
Frank Sonier, a longshoreman called by General
Counsel who witnessed the scuffle, corroborated
Clabron's testimony. He identified Bryant as the man who
had his hand cut, with blood on himself and his clothing
while trying to get out of the way.
Admitting an altercation with Clabron, Le Blanc
explained that while he was making the rounds
immediately behind Foreman Gilbert Mayes' 13 selecting
men in various brackets, he saw Clabron in "B" section
handing his button to Mayes; that since he (Le Blanc)
could get only 7 or 8 of the 17 men needed for his gang (3 or
4 "C's" and 2 or 3 "D's"), he proceeded to the loudspeaker
to tell the 7 men he had selected to take back their
buttons; that as he passed "B" section Clabron asked for
work, but he (Le Blanc) told him "there ain't no job
because I can't get enough men to go"; that Clabron then
"kept following" him to the microphone where Johnson
was standing and "kept agitating" him; and that it was at
this point that he told Clabron, "you have cost [sic] me to
" Clabron originally gave Le Blanc 's first name as "Adolph"
(the name appearing in the complaint ) After confronted with an
Adolph Le Blanc, he corrected the name to Aristel Le Blanc As
hereafter noted , the latter appeared at the hearing to refute the
conduct attributed to him. I find that Clabron 's original reference
to "Adolph" was inadvertent
11 Clabron was then in the " B" classification
13 The reference in the record (including Le Blanc 's testimony)
to "Gilbert Mason" is an apparent error; the foreman involved
identified himself at the hearing as "Gilbert Mayes "
miss two or three days' work already to the Labor
Relations. Why don't you stay off me. You see I can't get
enough men."" Le Blanc admitted pulling a knife from his
pocket, but only after "someone" yelled that Clabron had
a pistol. According to Le Blanc, the men in the crowd
grabbed him and Clabron to separate them.
Gilbert Mayes, Respondent' s witness , corroborated Le
Blanc's testimony in part . He testified that after picking
up Clabron's button in "B" section, he returned it to him
after completing his tour, at Clabron's request.15 Unlike
Le Blanc, he stated he followed rather than preceded
another foreman.16 He also testified that he did not "see"
Clabron ask the other foreman "immediately ahead" of
him to be picked up for a job.
Union Business Agent Belcher recalled that two
foreman were assigned to select gangs on December 16.
Identifying only one of them (Gilbert Mayes), he could not
tell whether Le Blanc was in the hiring hall at that time,
nor did he "know of any disturbance" involving Clabron
and a foreman, nor was one called to his attention.
Wheatley, another business agent, could not shed much
light on the subject, but he recalled Johnson telling Le
Blanc to "cool off" after the latter came into the office
"hot" or "angry" because of a "little scuffle out there."
Bryant, a witness for Respondent, first stated he "didn't
see nothing," but then acknowledged witnessing the
scuffle. Minimizing the incident, he claimed he only "got a
little scratch" on his hand, with "a little bit" of blood. He
did not see Le Blanc hire his gang, but recalled Le Blanc
"came along ahead of" Mayes.
f. James Cashaw
Clabron testified that he was refused a job at the 7 p.m.,
April 23, 1964, shapeup by bolster Cashaw, "picking up
the book" for Wilson's gang,t7 because "J. J. Wilson had
told him not to ever give me a job."
Cashaw denied the statement attributed to him, and
Wilson denied telling Cashaw or anybody not to hire
Clabron for discriminatory reasons. Asserting that he had
a "C" classification at that time, Cashaw claimed he was
neither a bolster nor a foreman. He admitted, however,
that from "time to time" in 1964 he did "pick out men" for
various gang foremen, including Wilson. He also admitted
making out the time sheet-jotting down the names of men
hired-for the 7 p.m. April 23 hiring. He further admitted
talking to Clabron about a job that evening, insisting,
however, that this took place 15 or 20 minutes "after
shaping-up time" in a cafe when he told Clabron "there
wasn't any jobs, I didn't pick up any men."
g. Nathaniel Woods
Clabron testified that on March 18, 1964, while standing
in front of Respondent's Harbor Drive building across
from the hiring hall, Woods-a member of Respondent's
board of directors at the time-told him that he "was doing
14 Le Blanc testified that he "was mad for losing four days'
work" as a result of having to appear at the Board's offices in
connection with the investigation of Clabron's earlier charges
15 A longshoreman's request for the return of a button means
he has changed his mind about taking the job
1" Mayes could not remember "exactly who he was",
Respondent in its brief assumes it was Le Blanc
17 Wilson, then a member of the Local's board of trustees,
became a member of its board of directors in June 1964 He was
also a gang foreman
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all right before [he] filed charges down at the NLRB";
that the Union's board of directors "had passed the word
to all the foremen not to hire people who had filed charges
against the local"; and that he (Clabron) and another
employee (Adolphus Williams) who had filed charges in
the prior case "would never become members of
Local 872" even if they "stayed there the rest of [their]
lives." Woods denied the statements. He conceded that
"from time to time" he learned "through the Executive
Board" about people, including Clabron, who filed
charges.
h. Willie Williams
Clabron testified that on May 25, 1964, in front of the
Harbor Drive building, Willie Williams, a foreman, told
two or three other foremen (including Willie Fleming) in
Clabron's presence, that he (Clabron), Isaac Morning, or
Adolphus Williams "was going to get killed even if he had
to do it himself"; that "the local would back up the man
who did it"; and that "if the local was busted up he would
not have anything to live for."
Williams denied making the threats. At one point he
stated that "some other person told them" that Clabron or
the other two employees "was going to get killed."
Although denying he was a gang foreman in 1964 (he
claimed he was one 25 years ago), in a prehearing affidavit
he had admitted he was a foreman when he executed it on
June 9, 1964. At one point in his testimony he described
himself as a bolster.
2. Credibility resolutions and conclusions
As the foregoing recital shows, since the events are in
sharp dispute, resolution of testimonial conflict depends
largely on assessment of the comparative credibility of
Clabron and Respondent's agents (gang foremen or
bolsters). Although, as hereafter noted, Clabron's
testimony was not entirely free from flaws, he impressed
me as a basically honest and sincere witness and I credit
his versions of all except two of the incidents. It will be
recalled that Clabron was one of the discriminatees
involved in the prior case. Undoubtedly as a result of his
earlier experience, he made contemporaneous notes on
several of the episodes in which he was involved for
possible later use. Clabron produced his notes at the
present hearing at Respondent's request. One of these
relating to his January 6, 1964, experience with bolster
Holmes (introduced in the record by Respondent)
corroborates his testimony.18 In the main, Clabron's
testimony was straightforward and convincing and stood
up well under vigorous and able cross-examination. His
detailed and meticulous recitals of incidents such as the
March 5, 1964, Belcher and December 16, 1965, Le Blanc
incidents carried the ring of truth. It is noteworthy that the
December 16, 1965, encounter with Le Blanc was
corroborated by a disinterested witness (Sonier).
On the other hand, some of Respondent's witnesses
appeared less than forthright and gave the impression that
they were studiously striving to avoid testifying
detrimentally to Respondent's interests. Among these
were Union Officials Johnson and Belcher, who denied
that a gun was involved in the March 5, 1964, affair;
bolster Le Blanc, who pulled knife in the December 16,
1965, fracas, allegedly only after an unidentified voice
warned that Clabron had a gun; Bryant, a frightened and
reluctant witness and an innocent victim in that same
incident, who sought to minimize it; and Cashaw, who
evasively sought to convey the impression that he was not
the bolster in the April 23, 1964, incident who turned down
Clabron's job request.19 Bolster Holmes, involved in the
January 6, 1964, incident, made the incredible assertion
that the word "union" was not even uttered in the hiring
hall; and although vividly recalling Haynes' employment
on January 6, he allegedly could not remember any of it in
his prehearing statement 2 years earlier (June 11, 1964).
Finally, Willie Williams (on whose testimony Respondent
relies to refute Clabron's as to a May 25, 1964, episode)
was so confusing, unresponsive, and self-contradictory on
material matters, as to stamp him totally unreliable.
In finding Clabron a basically truthful witness I have not
overlooked facts tending to detract from his credibility,
including his interest in this proceeding. Furthermore, in
the light of the documentary evidence, I cannot credit his
version of the March 4, 1964, episode involving bolster
Guillory.20 Clabron quoted Guillory as telling him on that
date that he should "go down to the Labor Board and ask
for a job." Although it is possible that an incident of that
nature took place, I am not satisfied that General Counsel
met the burden of establishing that it occurred on that
date. General Counsel did not refute employer records
showing that Guillory worked as a common longshoreman
(not foreman or bolster) between 7 a.m. and 12:30 p.m. and
1 p.m. to 6 p.m. on March 4, nor explain how Guillory
could have engaged Clabron in conversation at 1 p.m. in
the hiring hall when-as it must be presumed-he was
supposed to be at shipside to start on his second job.21
Accordingly, although not entirely free from doubt on the
matter, I credit Guillory's testimony respecting this
incident.
Similarly, I am not satisfied that General Counsel met
the burden of showing that on May 5, 1964, Le Blanc made
the statement that if one of the men who filed unfair labor
practice charges "would come up shot" others would be
deterred from filing charges. Clabron could not recall the
time of day the incident occurred. On the other hand,
Respondent offered in evidence a gang list indicating that
Le Blanc worked on a Strachan Shipping Company vessel
from 7 a.m. to 5 p.m. to prove that he could not have been
at the hiring hall between those hours. Moreover,
'" Clabron' s notes, setting forth among other things the
shapeup time and vessel involved (Gulf Trade), jibe with the
employer's records in evidence The notes also identify William
Haynes, Jr , as the "casual " who was hired at shipside,
corroborating Clabron 's claim that his initial identification of the
individual at the hearing as W L Youngman ( instead of Haynes,
Jr ) was inadvertent
" Cashaw was an unimpressive, glib witness While insisting
he had only a "C" classification in April 1964, he admitted hiring
"from time to time" in 1964 In response to a leading question on
redirect examination he retracted his testimony, stating lie was
only "an acting bolster."
20 My failure to credit Clabron as to some matters does not
affect my determination that he was credible as to others "It is no
reason for refusing to accept everything that a witness says,
because you do not believe all of it; nothing is more common in all
kinds of judicial decisions than to believe some and not all "
N L R B v Universal Camera Corporation, 179 F 2d 749, 754
(C A 2), reversed on other grounds 340 U S 474
L1 The evidence does not show the distances from the hiring
hall to ships
LOCAL 872, LONGSHOREMEN
Clabron's contemporaneous note states only "I think" Le
Blanc made that statement. Accordingly, I do not accept
Clabron's testimony on this point.22
Nor have I overlooked the fact, relied on by Respondent,
that while claiming discriminatory treatment in refusals to
hire on March 4, 24, and April 7, 1964, Clabron was
receiving workmen's compensation for a sprained ankle.
The very medical report on which Respondent relies in
this connection indicates that Clabron did not conceal the
fact that he worked on various occasions during this
"disability."
Contrary to Respondent's contention, the fact that
Clabron and other nonunion employees were able to obtain
employment through the Union's hiring hall facilities
during the complaint period does not rule out the existence
of discrimination in particular instances where the record
shows discrimination existed. Cf. N.L.R.B. v. Local 369,
International Hod Carriers (A. C. Frommeyer Co.), 240
F.2d 539, 543 (C.A. 3). Nor is it of special significance that
counsel for Respondent had urged the Union to comply
with a nondiscriminatory seniority hiring system and that
the Union's officials , in turn , advised the foremen to follow
such system. Actions speak louder than words. The record
establishes deep resentment on the part of some of the
union foremen or bolsters against Clabron's failure to join
the Union and his attempts to vindicate his rights under
Board processes. Their threats of violence and, in some
cases, admissions of knowledge of Clabron's role in the
prior Board proceeding, indicate that Clabron' s nonunion
views were matters of common knowledge and adverse
reaction. It was Respondent's responsibility and obligation
to take necessary and effective steps to prevent its agents
from engaging in unlawful actions, or to neutralize or
disavow any such action taken. Cf. N.L.R.B. v. Laister-
Kauffmann Aircraft Corporation, 144 F.2d 9, 13 (C.A. 8).
I find that Respondent on or about the following dates
through its following agents discriminatorily refused to
"pick up" or hire Clabron, thereby causing him to be
deprived of employment in violation of Section 8(b)(2) of
the Act:
1. David Holmes-January 6, 1964.
2. Robert Lewis-January 6 and April 7,1964.
3. A. Le Blanc-March 26, 1964 and December 16,
1965.
4. James Cashaw-April 23, 1964.
I find that Respondent by the above conduct and other
acts of its agents set forth below, also restrained and
coerced employees in the exercise of rights guaranteed in
Section 7 of the Act, in violation of Section 8(b)(1)(A) of the
Act:
1. Nathanial Woods' March 18, 1964, statement to
Clabron that the Union's board of directors "passed
the word" to the foremen not to hire any
longshoremen who filed charges.
2. Willie Belcher's March 5, 1964, threat to
Clabron-when the latter complained about shapeup
congestion-that he would kill Clabron. Considering
Belcher's admitted knowledge that Clabron was a
charging party in the prior proceeding, Belcher's role
as a union business agent, and his implausible and
false account of his encounter with Clabron, I infer
22 In any event, even if Le Blanc uttered the remarks, it is not
clear that they were intended for Clabron's or any other
employee's ears Clabron only overheard them For aught that
appears, Le Blanc was addressing himself to other foremen or
bolsters
23 Briefly, the pileman sees to it that the proper cargo is picked
591
that Belcher's threat was motivated by a desire to
discourage Clabron from filing unfair labor practice
charges or to discourage him from seeking
employment through the hiring hall because of his
nonmembership in the Union.
3. Robert Lewis' threat of May 25, 1964, that if he
caught Clabron on a ship, one of them would not come
back. Under all of the circumstances, including
Lewis' remark to Clabron that the nonunion
employees "had the man ... come to the hiring hall"
and that a Board agent called at the hiring hall earlier
that morning, I infer that Lewis' threat was designed
to restrain him in the exercise of his right to utilize the
processes of the Board.
4. Willie Williams' threat on the same day (May 25,
1964) that one of three longshoremen (including
Clabron and Isaac Morning) would get killed even if
he had to do it himself and that the Local would back
the killer.
5. Le Blanc's December 16, 1965, threat and
assault against Clabron, after Le Blanc denied a job to
Clabron because he had filed unfair labor practice
charges.
I find that the preponderance of the evidence does not
support the allegations in the complaint that Respondent's
agents engaged in the following acts and I therefore
conclude that Respondent did not thereby unlawfully
discriminate against Clabron in violation of Section 8(b)(2)
or restrain and coerce him in violation of Section 8(b)(1)(A)
of the Act:
1. Guillory's alleged March 4, 1964, refusal to hire
Clabron and alleged statement that Clabron find a job
at the Labor Board.
2. Le Blanc's alleged May 5, 1964, threat that if
one of the men who filed unfair labor practice charges
were shot, others would be deterred from filing
charges.
C. The Alleged Discrimination and Coercive Conduct
Against Isaac Morning
General Counsel relies on three alleged instances of
discrimination against Morning (based on refusals to place
him in more desirable jobs to which his classification
allegedly entitled him) and one instance of alleged
independent restraint and coercion.
1. The evidence
a. Huton C. Wolf
On May 20, 1964, bolster Wolf was hiring a 16-man
gang, consisting of 2 "hook-on" men, 2 forklift operators, 2
winchmen, 1 pileman, 1 signalman, and 8 men in the
hold.23 The first six operate what are known as deck jobs,
generally more desirable than the menial and normally
onerous jobs in the hold.
Morning testified that while standing in the "A" section
of the hiring hall (he held an "A" classification at that
time), he asked Wolf for a "hook-on" job. Wolf agreed, but
after hiring two men from the "B" section, returned to the
up at the warehouse for appropriate placement in the hatch The
forklift operators bring cargo from warehouse to shipside The
"hook-on" men hook cargo to the fall from the boom The
winchmen at a signal from the foreman (on the deck of the vessel)
raise the cargo from the dock, bring it over the ship and, with the
aid of two winches, load it into the center of the hold
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"A" section and told Morning he had to give him a forklift
job because the men he just hired could not drive a forklift.
Morning agreed to operate the forklift and reported to the
Manchester dock.
Morning further testified that on arrival at the dock he
and another member of the gang , Livingston Lee, obtained
a forklift to pick up some "bridles" (steel or hemp cables
for unloading ships ) while the rest of the gang commenced
rigging the ship (i.e., rigging booms in position to lower or
raise cargo from or to the center of the hatch). Soon
thereafter , Morning and Lee joined the rest of the gang on
deck . At this point , MacGarthy left the deck and started to
operate a forklift . After the ship was rigged , Morning and
Lee also left the deck to operate forklifts . Apparently
because the job called for only two forklift operators,
bolster Wolf asked Morning to go aboard to operate a
winch . When Morning said he did not know how to operate
that equipment , Wolf told him that he (Morning) would
either have to operate a winch , go into the hold , or go back
to the hiring hall. Morning left after hauling "a couple of
loads" with his forklift.
Recalling the incident , Wolf disputed some details given
by Morning . He denied telling Morning prior to reporting
to shipside the particular job he was going to be assigned
in the gang . Wolf and other Respondent witnesses testified
that the hiring gang foremen or bolsters do not commit
themselves to give particular jobs to particular employees
at shapeups . Although he remembered that Morning had
asked him for a "hook -on" job at shapeup , he also recalled
telling him that he could not give him one, but could give
him a winch job . Wolf further testified that he had
assigned the two available forklift jobs to Lee and
MacGarthy , and the winch operation to Morning, but only
after they arrived at the ship ; that Morning never told him
he could not operate a winch ; and that he gave Morning
the winch work because he could not use three forklift
operators . He admitted knowing that Lee and MacGarthy
were union members and in " B" classification whereas
Morning was in "A" classification.
After consulting his prehearing affidavit on cross-
examination , Wolf related the order in which he picked up
his men . He admitted that when he reached the "A"
bracket , two of the men asked him for "hook-on" jobs and
that he "told them that they could have a hook -on job." He
also stated that because of these commitments he could
not also comply with Morning 's request for a "hook-on"
job and instead offered him a winch job , which Morning
accepted after some hesitation . At one point he testified
that Morning "was the first man" in the gang to ask him
for a "specific job."
Livingston Lee corroborated Wolf's testimony that he
was not assigned his forklift job until he reported to the
ship . He denied hauling bridles or operating a forklift with
Morning on the day in question.
b. Allen Anderson
Morning testified that on May 25, 1964 , while conversing
with Tilley (counsel for General Counsel), in the hiring hall
by the blackboard (which listed the jobs for the 10 a.m.
24 Tilley presumably went to see Morning about the unfair labor
practice charges Morning had filed 5 days previously Although
Tilley showed Belcher his official badge , the latter apparently
knew Tilley from the prior hearing in which Belcher testified and
Tilley, as in this case, represented the General Counsel
21 Morning also quoted Scott as telling a longshoreman that he
could not employ him as winch operator because he (Scott) "had
shapeup ), Union Business Agent Belcher approached
them and told Tilley , "If there's anything you want to
know see me, not Morning ."24 Later , when Anderson, a
bolster, began hiring , Morning, one of the three men
standing in the "A" bracket (Tilley was still nearby ), asked
for a "hook -on" job . According to Morning, Anderson said,
"Well, I don 't think I 'm going to have a hook-on job. I can
give you a hold job." Morning then asked for a forklift job,
but Anderson said that he did not "think " he would have
that either. When Anderson indicated that he could
probably give him "a hold job ," Morning refused , stating,
"You know , I'm not going to work in the hold." Morning
told Anderson that "With the other men [foremen or
bolsters] I could get a top job ," such as "hook-on" or
forklift work called for by his classification.
Anderson recalled the incident , including Tilley's
presence in the union hall , when he made his rounds.
However , he specifically denied telling Morning that he
would give him a job in the hold, insisting that he only told
him, "I can't give you a hook -on job , I can give you a job."
Anderson testified that he never tells anyone at the
shapeup the particular job he was going to get at shipside.
He indicated that at times he has had even "AAA" men
work "in the hold and all over the place," but expressed
the view that had Morning joined the gang at that
particular shapeup, his job "probably would have been a
forklift or a hook -on job ," since only few men with senior
classifications happened to be in the hiring hall.
c. A. L. Scott
Morning testified that in mid-March 1965, at shipside,
after the rigging of the ship , he requested bolster Scott for
a forklift job. When Scott asked Morning if he belonged to
the Local and Morning said "no," Scott told him he would
have to give the job "to a local man ." Scott assigned
Morning to a job in the hold, which Morning accepted.25
Scott did not "remember" the incident . He specifically
stated , "I didn ' t ask, never asked did he belong to the
Local , not on the job." He admitted acting as a bolster or
"writing a book" for Gang Foreman Jackson.
d. Henry Walker
As previously noted, Tilley (counsel for General
Counsel) visited the union hall on Monday morning,
May 25, 1964 . Among other things, Morning showed Tilley
the blackboard listing the jobs for the 10 a.m. shapeup.
This blackboard also contained information such as the
name of the ship and the pier to which employees report.
Morning testified that later that day (around 7 p.m.) Henry
Walker , a gang foreman , approached him (Clabron and
Adolphus Williams apparently were in the vicinity) and
said that "Mr. Tilley and none of them was doing nothing
but make a damn fool out of me ... being I can't read the
gangs on the board, I couldn 't read ... all they was doing
was making a monkey out of me."
Walker admitted telling Clabron , "You know , you are
just making a fool out of yourself showing him [Mr. Tilley]
that board . You can't read it to him."26
to give the winch job to a local man," but General Counsel not
having alleged this incident in the complaint to be a violation had
assured Respondent at the hearing that it ( Respondent) would not
"have to meet" that charge Under the circumstances, I make no
finding respecting Scott's statement to the longshoreman
t1i However, he denied referring to Clabron by an "ugly name"
in the course of the conversation , as testified to by Morning
2. Conclusions
LOCAL 872, LONGSHOREMEN 593
(a) Morning , like Clabron , was not a member of
Respondent Union and was a charging party in the earlier
Board proceeding . However , as General Counsel points
out (brief, p. 9), the discrimination against him alleged in
this proceeding "is of a different nature than that which
was fully litigated at the prior hearing and different also
from the continuing discrimination against Clabron."
Whereas General Counsel 's claim of discrimination
against the latter is grounded on the foremen 's or bolsters'
refusal to "pick up" or hire him at shapeups , that against
Morning is grounded on the union agents ' refusals to place
him on the more desirable jobs which his seniority
classification ("A") presumably called for . As indicated,
General Counsel relies on three instances of alleged
discriminatory work assignments by bolsters : (1) Wolf's
May 20 , 1964 , insistence that Morning either operate a
winch or work in the hold after refusing to give him a
forklift job ; (2) Anderson 's May 25 , 1964 , request that he
take a hold job after refusing to assign him a "hook-on" or
forklift job ; and (3 ) Scott 's March 1965 assignment of a
hold job after rejecting Morning's shipside request for a
forklift job . Morning refused all assignments except the
last.
(b) As in the case of Clabron , resolution of the question
whether Respondent unlawfully discriminated against
Morning turns largely on assessment of comparative
credibility of witnesses . Morning testified that the
longshoremen customarily received their job assignments
at shapeups in the hiring hall and that he there received
his forklift assignment from Wolf. On the other hand,
Wolf, Anderson, and other Respondent witnesses testified
that while gangs are hired at shapeups , the particular
assignments are not made until the gangs appear at
shipside . And Wolf, Anderson , and Scott disputed
Morning 's versions of the events leading to the alleged
discriminatory conduct.
The issue of whether or not job commitments are made
at shapeups was litigated at length at the hearing. On the
basis of the entire record and inherent probabilities, I
credit Respondent 's evidence to the effect that jobs are
customarily assigned at shipside , not at hiring hall
shapeups . Unlike work in many industries , longshore work
is not classified by specific type and skill with separate
rates for different classifications . Longshoremen of all
seniority groups ("Gold Star ," "AAA," "B," etc.) work the
same hours , receive the same pay, and (unless physically
handicapped) will perform all operations . The special need
which may dictate hiring by job classifications in other
industries does not appear to exist in longshore work.
Furthermore , as Respondent states (brief, p. 27), "there
are so many variables between the cargo" and the
locations of cargo in the hatch , differences in operations
for loading and discharging , etc., "that [it ] would impose
impossible burdens to determine before reaching shipside
which member of a gang that is being picked up would do
any one specific type of work ." This does not, of course,
preclude a foreman from mentally noting the type of work
20 As I read section 14 of the Union' s hiring hall procedure, the
provision therein according "preference " to applicants for
referral " in order of their seniority classification" means only that
individuals in higher classifications (e g., "Gold Star," "AAA,"
etc.) shall have priority in selections and assignments to gangs at
shapeups over individuals in lower classifications (e g , "AA,"
"A,' "B," etc )
28 While, as hereafter noted, I credit Morning 's versions of the
most suitable and the one he most likely would assign to a
particular applicant at the shapeup . It is to say that , absent
credible evidence to the contrary , it must be assumed that
for practical considerations he will not normally make a
final determination on job selections until the full gang is
at shipside and knows the overall scope and nature of the
work in store.27
(c) Based on the foregoing , I credit bolster Anderson's
testimony that in making his rounds in the hiring hall on
May 25 , 1964 , he followed customary procedure , refused
to commit himself to give Morning a "hook -on" job, and
only promised him "a" job if he went to the jobsite. There
appears no particular reason in this record why I should
credit Morning 's version of this incident in preference to
Anderson 's.28 I find that the record does not support the
allegation in the complaint with respect to the alleged
discrimination by Respondent through Anderson.
However , I cannot and do not credit Wolf's testimony
that he did not assign Morning 's work (forklift operator) at
the May 20 , 1964 , shapeup . His testimony that, in
accordance with customary practice , he made no job
selections to Morning "or anyone else" until shipside was
shattered by his admission on cross-examination, after
confronted with his prehearing affidavit , that he departed
from customary practice in at least two cases . Thus, he
admitted committing himself at the hiring hall to give the
two "hook -on" jobs to two of the men in the "A" bracket
before reaching Morning in that bracket . According to
Wolf's own version , even Morning 's initial assignment to
the winch job was made at the shapeup . In any event, it is
strange indeed that if, as Wolf also insisted, the forklift
assignment were first made at shipside why he selected
two "B" men (members of the Local) rather than Morning,
an "A" man who bid for the job. On the basis of the entire
record , including the inadequacy and falsity of Wolf's
reasons for refusing to give one of the two forklift jobs to
Morning , I find that the record substantiates the allegation
in the complaint that Wolf's conduct was discriminatorily
motivated . Under the circumstances , Morning's
assignment to the less desirable and more onerous winch
or hold job was discriminatory under the Act.
Unlike the two prior incidents , Scott 's alleged refusal to
hire Morning in March 1965 took place at shipside, not at
the hiring hall. Scott 's denial that the incident took place is
incredible . 29 I find that the record supports the allegation
in the complaint that Scott refused to assign Morning to a
forklift job because Morning was not a member of the
Local.
(d) The remaining incident-Walker 's alleged May 25,
1964, statement that Morning had made "a damn fool out
of" himself by showing Tilley (counsel for General
Counsel) the blackboard listing the shapeup jobs-is
claimed to constitute coercion. I disagree . It is clear, and I
find , contrary to the allegation in the complaint, that
Walker 's remarks to Morning (even if uttered) neither had
the object nor effect "to prevent an employee from filing
unfair labor practice charges" with the Board . Morning
conceded that he could not read or write, although over the
years he has developed ability to recognize certain
other incidents , his testimony on some collateral points (e.g., the
description and nature of buttons he wore) was not persuasive
29 As between him and Morning , I credit Morning Scott did not
impress me as a credible witness His testimony as to whether
Morning ever worked with him was vague and evasive . Equally
equivocal was his response to the question whether he had
discussed the qubstion of union membership with any
longshoremen off the job or outside the union hall
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information normally placed on blackboards. Walker's
statement must be construed as no more than a casual
observation that anyone, such as Morning , who cannot
read or write, only makes "a fool" of himself when he
attempts to explain the blackboard to an outsider, a
remark having no causal relation to Morning 's right to
consult with Board agents.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. By rejecting or refusing to consider Ernest Clabron's
applications for employment and Isaac Morning's requests
for preferential or desirable jobs through its hiring hall
procedures, either because they were not members of
Respondent or because they had filed unfair labor practice
charges against it, Respondent has caused or attempted to
cause employers to deny employees employment, in
violation of Section 8(b)(2) of the Act.
3. By the foregoing conduct, by statements to the effect
that nonmembers and individuals filing unfair labor
practice charges would not obtain employment, and by
employing and threatening to employ physical violence to
intimidate employees from filing unfair labor practice
charges or from seeking work through the hiring hall,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it be
ordered to cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
I shall also recommend that Respondent notify Ernest
Clabron and Isaac Morning, in writing, that, in considering
their applications for employment through its hiring hall
procedures, they will not be discriminated against because
of their nonmembership in Respondent or because they
filed unfair labor practice charges against it. I shall also
recommend that Respondent make the two employees
whole for any loss of earnings suffered by reason of the
discrimination against them . The amount of backpay shall
be computed in accordance with the formula approved in
F. W. Woolworth Company, 90 NLRB 289, with interest as
prescribed in Isis Plumbing & Heating Co., 138 NLRB
716.
Since the unlawful conduct of Respondent indicates a
purpose to limit the lawful rights of employees, and the
danger of their further commission is reasonably
forseeable, I shall recommend that Respondent cease and
desist from in any manner restraining and coercing
employees in the exercise of rights guaranteed by the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that Respondent , Local 872, International
A° In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
Longshoremen ' s Association , AFL-CIO, its officers,
representatives , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Causing or attempting to cause any employer on
behalf of or in connection with whom it operates or
administers an employment referral system to deny
employment to Ernest Clabron and Issac Morning, or any
other applicant for employment , in violation of Section
8(a)(3) of the Act, or otherwise to discriminate against
them , because they are not members of Respondent or
filed unfair labor practice charges against it.
(b) Employing or threatening to employ force or
violence to intimidate employees from filing unfair labor
practice charges or from seeking employment through
Respondent 's hiring hall.
(c) Telling employees that they would not be hired or
would be discriminated against because they are not
members of Respondent or because they filed unfair labor
practice charges.
(d) In any other manner restraining or coercing
employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify Ernest Clabron and Isaac Morning, in writing,
that it has no objection to their employment and will not
discriminate in their selection for employment or the
employment of any other longshoremen , on the ground
that they are not members of Respondent or because they
filed unfair labor practice charges against it.
(b) In the event that Ernest Clabron and Isaac Morning
are presently serving in the Armed Forces of the United
States, notify them , in writing , that it has no objection to
their employment and will not discriminate in their
selections for employment on the ground that they are not
members of Respondent or filed unfair labor practice
charges, upon application , in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Make whole Ernest Clabron and Isaac Morning for
any loss of pay each may have suffered because of the
discrimination against him , in the manner set forth in the
section of this Decision entitled "The Remedy."
(d) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
records pertaining to employment through its hiring halls
and all records relevant and necessary to compliance with
above paragraph (c).
(e) Post , at its business office, hiring halls, and meeting
places in Houston , Texas, copies of the attached notice
marked "Appendix. 1130 Copies of said notice, to be
furnished by the Regional Director for Region 23, after
being duly signed by an official representative of
Respondent , shall be posted by it immediately upon
receipt thereof , and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered , defaced , or covered by
any other material.
(f) Notify said Regional Director , in writing , within 20
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
MIAMI COCA-COLA 595
days from the date of this Decision , what steps
Respondent has taken to comply herewith.3'
IT IS FURTHER RECOMMENDED that , except as found
herein , all allegations in the complaint of violations of the
Act be dismissed.
31 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
Service Act, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas 77002,
Telephone 228-4722.
APPENDIX
NOTICE To ALL MEMBERS OF LOCAL 872,
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION
AFL-CIO, AND To ALL LONGSHOREMEN WORKING OUT
OF OUR HIRING HALL
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT cause or attempt to cause any
employer , on whose behalf gang foremen or bolsters
hire employees from our hiring halls, to deny
employment to any applicant for employment because
such applicant is not a member of our Union or
because he filed charges against our Union with the
National Labor Relations Board.
WE WILL NOT use, or threaten to use, force or
violence against any job applicants in order to
intimidate them from filing charges against our Union
with the National Labor Relations Board or from
seeking employment through our hiring hall.
WE WILL NOT tell employees that they will be
discriminated against because they are not members
of our Union or because they file charges with the
National Labor Relations Board , or in any other
manner restrain or coerce employees or applicants for
employment in the exercise of rights guaranteed by
the National Labor Relations Act.
WE WILL notify Ernest Clabron and Isaac Morning,
in writing , that we have no objection to their
employment and that we will not discriminate against
them.
WE WILL make whole the above -named employees
for any loss of pay they may have suffered as a result
of the discrimination against them.
LOCAL 872, INTERNATIONAL
LONGSHOREMEN'S
ASSOCIATION , AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
NOTE: We will notify Ernest Clabron and Isaac
Morning, in writing, if presently serving in the Armed
Forces of the United States that we have no objection to
their employment and that we will not discriminate against
them on the ground that they are not members of the
Union or filed unfair labor practice charges against the
Union, upon application, in accordance with the Selective
Service Act and the Universal Military Training and
Miami Coca -Cola Bottling Company and
Ralph Gonzalez , Brendan Coughlin,
General Sales Drivers & Allied Employees
Union , Local No. 198 , International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America,
Richard W . Loban , and Robert W. Shep-
hard . Cases 12-CA-2058-1, 2058-2, 12-CA-
2097, 12-CA-2157-1, and 2157-2.
March 27, 1967
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On September 28, 1962, the National Labor
Relations Board issued a Decision and Order in the
above-entitled proceeding,' finding, inter alia, that
the Respondent had discriminatorily discharged cer-
tain named employees, including Robert W. Shep-
hard, in violation of Section 8(a)(3) and (1) of the Act,
and directing that the Respondent make whole these
employees for any loss of earnings resulting from the
discrimination. On November 19, 1963, the United
States Court of Appeals for the Fifth Circuit entered
its decree enforcing the aforesaid Board Order.2
On April 24, 1964, the Regional Director for
Region 12 issued backpay specifications, and on
May 8, 1964, the Respondent filed an answer
thereto. Upon appropriate notice issued by the
Regional Director, a hearing for the purpose of
determining the amounts of backpay due was held
on June 15 and 16 and August 5, 1964, before Trial
Examiner Benjamin B. Lipton, who issued his
Supplemental Decision on December 10, 1964.
On April 4, 1965, the Board issued its
Supplemental Decision and Order,3 requiring the
Respondent to pay specified amounts of backpay to
the discrimintees. Thereafter, the United States
Court of Appeals for the Fifth Circuit enforced the
provisions of this Order with regard to all the
discriminatees except Shephard.4 With regard to
1 138 NLRB 1209
2 N L.R B. v Miami Coca- Cola Bottling Company, 324 F 2d
501
3 151 NLRB 1701
4 N L R B v Miami Coca-Cola Bottling Company, 360 F 2d
569, the Respondent's petition for rehearing was dismissed by the
court without opinion on August 11, 1966.
295-269 0-69-39 163 NLRB NO. 73