Local No. 851, Longshoremen

National Labor Relations Board - Board Decisions

Jan 14, 1972

194 N.L.R.B. 1027 (N.L.R.B. 1972)

LOCAL NO. 851, LONGSHOREMEN
Local No. 851, International Longshoremen's Associa-
tion, AFL-CIO, and John H. Biggers , Jerry C.
Biggers, Thomas Lee Young , Samuel W. Stephens,
Jr., Clemis Jackson and J . W. Lyons. Cases
23-CB-1133-1, 23-CB-1133-2, 23-CB-1133-3,
23-CB-1 133-4, 23-CB-1 133-5, and
23-CB-1 133-6
January 14, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY,
On August 23, 1971, Trial Examiner Henry L.
Jalette issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order, as modified herein.
While we agree with the Trial Examiner that
Respondent violated Section 8(b)(1)(A) and 8(b)(2) of
the Act by operating its hiring hall in a discriminatory
manner, we do not agree that the remedy recommend-
ed by the Trial Examiner, insofar as it relates to the
matter of Respondent's obligation to "make whole
[the Charging Parties] and all other applicants for
employment . . . for any loss of pay suffered by them
by reason of [Respondent's ] discriminatory operation
of the hiring hall.. . ." (emphasis supplied), would be
proper herein. The record before us shows a general
policy on the part of the Respondent to refuse to grant
classification cards to members of Local 329. At the
same time, however, the record does not reveal that
any identifiable members of Local 329 other than the
Charging Parties at any time applied for classification
cards and were denied the same or were in any other
manner discriminated against in such a way as to have
suffered a loss of earnings. In these circumstances, we
deem it inadvisable to extend our "make whole"
remedies to include losses of earnings to unknown
individuals who were not named in the complaint and
whose status as a part of a group which was
unlawfully deprived of work was not litigated during
the course of the hearing.' Accordingly, we shall
modify paragraph 2(b) of the recommended Order
and the related paragraph in the Appendix so as to
limit the "make whole" portion of the remedy to the
1027
Charging Parties whose status was litigated at the
hearing.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified herein
and hereby orders that Local No. 851, International
Longshoremen's Association, AFL-CIO, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended Order
as modified herein.
1. Delete paragraph 2(b) of the recommended
Order and substitute the following:
"(b) Make whole John H. Biggers, Jerry C. Biggers,
Thomas Lee Young, Samuel Stephens, Jr., Clemis
Jackson, and J. W. Lyons for any loss of pay suffered
by them by reason of Local 851's discriminatory
operation of the hiring hall in accordance with the
recommendation in the Remedy section of the Trial
Examiner's Decision."
2. Substitute the attached notice for the Trial
Examiner's notice.
1 Cf. International Longshoremen's and Warehousemen 's Union, Local No.
13 (Pacific Maritime Association), 192 NLRB No. 50.
APPENDIX
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all applicants for employment
WE WILL NOT give preference to members of
Local 851 in making assignments to jobs.
WE WILL NOT refuse to issue seniority classifica-
tions to members of Local 329 because of their
membership in Local 329.
WE WILL issue seniority classifications to all
those who apply for seniority classification with-
out regard to union membership.
WE WILL NOT tell applicants for seniority
classification that they cannot get seniority classi-
fication because they are members of Local 329, 'or
imply that seniority classifications have been
withheld because they have filed unfair labor
practice charges.
WE WILL NOT instruct gang foremen to give
preference in assignment of jobs to members of
Local 851 over members of Local 329 or over other
applicants for employment.
WE WILL make whole John H. Biggers, Jerry C.
Biggers, Thomas Lee Young, Samuel Stephens, Jr.,
Clemis Jackson, and J. W. Lyons for any loss of
194 NLRB No. 168
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages they may have suffered by reason of Local
851's discrimination against them in making
assignments.
WE WILL notify John H. Biggers, Jerry C.
Biggers, Thomas Lee Young, Samuel Stephens, Jr.,
Clemis Jackson, and J. W. Lyons and Local 329
that we will issue them seniority classifications
without regard to their union membership and WE
WILL notify Local 329 that we will issue seniority
classifications to its members, upon request, in
accordance with the same standards followed
when we adopted the seniority system.
Dated By
LocAL No. 851,
INTERNATIONAL
LONGSHOREMEN'S
ASSOCIATION , AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be
defaced by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Dallas-Brazos Building, 1125
Brazos Street, Houston, Texas 77002, Telephone
713-226-4296.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Trial Examiner: This case involves
allegations that Local No. 851, International Longshore-
men's Association, AFL-CIO, has violated Section 8(b)(2)
and (1)(A) of the Act by refusing to give hiring hall
seniority classifications to longshoremen who have been
using its hiring hall for referral to employment because they
are members of Local 329, which is also an affiliate of the
International Longshoremen's Association, AFL-CIO, and
enjoy hiring hall seniority classifications in the hiring hall
operated by Local 329. The charges in Cases
23-CB-1133-1, 23-CB-1133-2, 23-CB-1133-3 and
23-CB-1133-4 were filed on November 19, 1970, that in
Case 23-CB-1133-5 was filed on November 30, 1970, and
that in Case 23-CB-1133-6 was filed on December 23,
1970. All charges were consolidated in the complaint issued
on March 5, 1971. On May 18 and 19,197 1, a hearing was
held at Galveston, Texas.'
On the entire record,2 including my observation of the
1 The hearing was adjourned with leave to Respondent to submit
certain documentary evidence by posthearmg stipulation No such
evidence was submitted and pursuant to motion of General Counsel, not
opposed by Respondent , the record was ordered closed on June 29, 1971.
witnesses , I make the following findings of fact, conclusions
of law , and recommendations.
1. JURISDICTION
West Gulf Maritime Association is a trade association of
employers some of which are engaged in the business of
loading and unloading cargo from deep sea vessels arriving
and departing from various ports of the States of Texas and
Louisiana, including the port of Galveston . The Associa-
tion exists for the purpose , inter alia, of negotiating and
administering collective -bargaining agreements made for
and on behalf of its employer members with South Atlantic
and Gulf Coast District , International Longshoremen's
Association, AFL-CIO, and its affiliated unions, including
Respondent Local 851. The members of the Association
collectively furnish stevedoring services valued in excess of
$500,000 to steamship companies operating vessels in
interstate and foreign commerce.
II. THE LABOR ORGANIZATIONS INVOLVED
Local No. 851, Local No. 329, and South Atlantic and
Gulf Coast District, (hereinafter referred to as District) all
affiliates of the International Longshoremen 's Association,
AFL-CIO, are each , and each has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
In the port .of Galveston , Texas, there are three deep sea
locals affiliated with the International Longshoremen's
Association: Local 307, Local 329, and Local 851.
Historically, Local,329 was a sugar local, that is, Local 329
had exclusive jurisdiction in the unloading of sugar, and,
until a change in the handling of sugar occurred, of the
three locals, Local 329 had a lion's share of the work.
During the period when this condition prevailed, a
dispute arose between the International and Local 329 and
the International withdrew or abrogated its charter in 1924.
A year or 2 later , the International desired the return of
Local 329, but Local 329 would only agree to a reunion if it
was permitted to retain exclusive hiring rights for
stevedores employed by certain named employers who are
members of the Association and parties to, or covered by,
the contract between the Association and District. The
named employers were the employers who handled the
sugar . Agreement was reached and from that date forward
the contract granted exclusive hiring rights to Local 329 for
certain named employers. (The current contract gives Local
329 exclusive hiring rights with four employers.) Local 307
and Local 851 had exclusive hiring rights for the remainder
of the stevedoring work. Local 307 is a white local and
Local 851 is a black local, and the two locals divide the
work equally. Local 329 is also a black local and the dispute
herein involves the use of blacks who are members of Local
The Motion to Close Record and Order Closing Record are received into
evidence as TX Exh I and 2, respectively.
2 No briefs were filed by any of the parties.
LOCAL NO. 851, LONGSHOREMEN 1029
329 of the hiring hall operated by Local 851. There is no
dispute with Local 307.3
In recent years, the handling of sugar has changed and
the demand for stevedores from Local 329 has diminished
drastically . For example , out of a period of 365 days (June
10, 1969 , to June 9, 1970) there was no work out of Local
329 on 202 days. On the other hand, Local 851 frequently
had more jobs to refer men to than it could handle and for
several years members of Local 329 have used both Local
329's hiring hall and the hiring hall of Local 851. The two
locals are located on the same block and are about 50 yards
from ope another , and those shaping up at Local 329's hall
who do not get jobs can easily go to Local 85 l 's hall and
shape up there.
Prior to 1968, there was no seniority system. On August
14, 1968 , a seniority system was adopted , and, in order to
classify applicants , Local 851 obtained employment data
from records of the West Gulf Maritime Industry which
showed how many hours an individual had worked through
or out of Local 851 since 1956 , the earliest date for which
the West Gulf Coast Maritime Industry had records. For
employment before 1956 , Local 851 made an arrangement
with Social Security whereby any individual could have a
record of his earnings submitted to Local 851 and from this
record an applicant 's years of employment as a longshore-
man in the port of Galveston could be compiled . As to this
employment, applicants were given credit for all hours
worked in the port of Galveston regardless of whether the
work was performed for employers under the jurisdiction of
Local 851 or some other local.
The seniority system adopted provided for the classifica-
tion of applicants as either Gold Star, A-4, A-3, A-2, A-1,
A, B, C, or D . These classifications ranged from 25 years of
service to be classified as Gold Star to 5 years of service for
a D classification. Applicants with less than 5 years of
service are designated as "casuals ." Only those years of
service counted for classification in which an applicant
worked 700 or more hours , and, although the provisions of
the hiring hall and seniority system do not expressly so
specify, at least for hours of work since 1956 , only those
hours of work for employers under Local 85 l's jurisdiction
are counted.
The hiring system operates in the following manner. By
7:00 or 7:15 p.m. each day, Local 851 knows what cargoes
there will be on the following day. A description of these
cargoes is fed onto a tape and an answering service is
maintained so that longshoremen can telephone to learn
what cargoes will be available . Starting times are 7:00 a.m.,
8:00 a.m., 1:00 p.m., and 7:00 p .m., with most assignments
at 7:00 a.m. Interested longshoremen shape up at the hiring
hall which has areas designated for each seniority
classification and an applicant for referral must stand in the
area for his classification . (Each applicant has an
identification card showing his classification .) Employment
is done by a gang foreman who begins selection for a gang
from the highest classification down to the lowest, selecting
from each classification only those applicants who signify a
desire to work in his gang.
B. The Alleged Discrimination Against Members of
Local 329
The foregoing is the framework within which Local 851 is
alleged to have engaged in conduct violative of Section
8(b)(2) and (1)(A) of the Act. When the seniority system
was adopted in 1968 , longshoremen in the Galveston area
were given the opportunity to apply for a seniority
classification . At that time all the charging individuals
herein, except John H. Biggers , applied for classification.
All were then, and are now, members of Local 329, and all
were denied classification cards because they were
members of Local 329. They were not denied the right to
shape up at Local 851's hiring hall , but when they did shape
up they were required to stand in the area designated for
casuals, the last group from which longshoremen are
selected.
According to all the Charging Parties, in the selection of
casuals for employment it is the practice of the gang
foremen to hire members of Local 851 first , then casuals
who are neither members of Local 851 , nor of Local 329,
with members of Local 329 the last to be selected. Stephens,
Jerry Biggers, T. L. Young, and Jesse Lyons testified that
on several occasions they had heard Raymond Batiste,
business agent of Local 851, tell gang foremen that they
were to give preference for employment to members of
Local 8514
Stephens testified that in August 1970 he asked Leroy
Hoskins , president of Local 851 , for a card and Hoskins
refused to give him one. Later, after he had filed the charge
in Case 23-CB-1133-4, Stephens had a conversation with
Hoskins in which Hoskins adverted to the charge and
Stephens told him it was because he had been refused a
card . Hoskins replied , "You were going to get one, but
you'll see."
In July 1970 John Biggers asked Hoskins for a
classification card and Hoskins told him he couldn't give
him one because Biggers belonged to Local 329 and if he
were given a classification card he would have seniority
over some members of Local 851 . Biggers asked Hoskins
again in November 1970 and was again refused because of
his membership in Local 329. About August 1970 Biggers
spoke to Pat Ball, chairman of the Board of Local 851, who
told him a longshoreman could not hold classification cards
in two locals in the same port.
Conversations similar to the foregoing occurred between
some of the other charging parties and Hoskins, Batiste,
and Ball . These are alleged as independently violative of
Section 8(b)(1)(A) of the Act in paragraph 8 of the
complaint, but in view of the similarity in the conversations
no useful purpose would be served by setting them forth
herein . Neither Batiste nor Ball denied the statements
attributed to them, and the only denial I can read in
3 The maintenance of white and black locals is the subject of a pending
suit brought by the United States against the ILA and its affiliates,
including the locals referred to above, alleging that the arrangement and
practice described above violates Title 7 of the Civil Rights Act of 1964.
U S v ILA, et al, Civil Action No. 69-B-3, U S D C., Southern District of
Texas, Brownsville Division.
4 According to T. L Young, this instruction did not apply to a cargo of
cotton Cotton is piecework and the foremen select men on the basis of
ability because it increases their earnings.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hoskins' testimony is a denial that any of the Charging
Parties applied for or requested casual cards.
The statements to members of Local 329 that they could
not get seniority cards because they were members of Local
329, as alleged in paragraph 8(a), (b), (c), and (i) of the
complaint, would clearly tend to restrain and coerce the
members of Local 329 with regard to their right to remain
members of Local 329 and to refrain from becoming
members of Local 851, and the statement to Stephens
implying that he would have received seniority classifica-
tion had he not filed an unfair labor practice charge, as
alleged in paragraph 8(g) of the complaint, would tend to
impede the access of employees to the Board, and I find
such statements violative of Section 8(b)(l)(A) of the Act.
I also find violative of Section 8(b)(1)(A) of the Act, as
alleged in paragraph 8(a) of the complaint, the instructions
given to gang foremen in the presence of applicants for
employment that they were to give preference in employ-
ment to members of Local 851.
As to the allegations of paragraph 8(d), (e), and (f) that
agents of Respondent told applicants for seniority classifi-
cation who were members of Local 329 that they were not
being given seniority classifications because the issuance of
classification would advance them ahead of members of
Respondent, I consider them superogatory and nothing
more than an explanation for Respondent's refusal to issue
seniority classifications to members of Local 329. In effect,
the statements are repetitious of the statements found
unlawful pursuant to the allegations of paragraph 8(a), (b),
(c), and (i) and a finding of the commission of separate
unfair labor practices based thereon is unwarrented.
C. Analysis and Conclusions
The principal allegation of the complaint herein is that
since on or about June 1, 1970, and continuing to date,
Local 851 has refused to issue hiring hall seniority
classification cards to members of Local 329 because of
their membership in Local 329 and/or because of their lack
of membership in Local 851. The record clearly supports
the allegation. In fact, Local 851 admits that it will not issue
classification cards to members of Local 329.5 If there is
any factual dispute , it is as to the type of card the Charging
Parties requested. According to Hoskins, none of the
Charging Parties ever requested a casual card, and had they
done so they would have received one. The Charging
Parties were not specific about their requests, but it is clear
they requested classification in accordance with the years
of longshore work they had performed out of Local 85 l's
hiring hall. Whether they requested a casual classification
or a 'seniority classification is immaterial. The fact of the
matter is that they requested a classification of one kind or
another and were turned down, and Local 851 admits that
it will not give seniority classification to members of Local
329. The only issue is whether it may legally refuse to do so.
Local 851 defends its refusal to issue seniority classifica-
tions to members of Local 329 on the ground that in 1968
when the seniority system was adopted the International
and the District advised all locals involved in setting up a
seniority system that members could not hold seniority in
two deep sea locals in the same port. Since members of
Local 329 hold seniority classifications in Local 329's hiring
hall, they cannot hold seniority classifications in Local
851's hiring hall . At least one reason for such a rule,
according to Local 851, is that Local 851 is obligated to
service the employers who are party to the Association
agreement for whom it maintains an exclusive hiring hall.
Local 329 has a similar obligation vis-a-vis the employers
for whom it maintains an exclusive hiring hall . If members
of Local 329 were given seniority classifications , it will be a
deterrent to the acquistion of seniority by other longshore-
men and reduce the supply of longshoremen available for
referral by Local 851. Moreover, Local 329 members owe
their first loyalty to Local 329 and are not a dependable
source for Local 851 to fulfill its obligation to the employers
it serves. None of these arguments has merit.
There is no probative evidence of any directive to the
locals such as described by Local 851. Despite the
opportunity given to Local 851 to submit a copy of such a
directive, none was submitted , nor was any explanation
offered for the failure to do so . Under the circumstances, if
such a directive was issued , I cannot determine whether or
not it provided a valid defense. In any event, any directive
which purported to deny to members of Local 329 the right
to seniority classification in Local 851's hiring system
although they fulfilled all the conditions for classification
would not constitute a valid defense. The impression which
I have obtained from the testimony about the directive is
that it was intended to set up hiring halls based on a
seniority system and to bar members of Local 329 from
using their years of service as longshoremen working out of
Local 329's hiring hall to obtain seniority in Local 85 l's
hiring hall , and vice versa . If such ' is the case, the charging
parties herein are not seeking to violate the directive,
because they are merely requesting that they be accorded
the same treatment as all other users of Local 851's hiring
hall; namely, that they be accorded credit for,the hours of
longshore work they perform through referral by Local 851.
For example, Samuel Stephens, Jr., worked 1,271.98 hours
out of Local 851's hiring hall in the period from October 1,
1969, to September 30, 1970. On the basis of his hours of
work out of Local 851 for a period of years, on the
admission of Local 851's president Hoskins, Stephens
would have at least a D classification in Local 851 's hiring
hall were it not for his membership in Local 329.
The assertion that the denial of seniority classification to
members of Local 329 is essential to preserve Local 851's
ability to supply longshoremen to employers under contract
with it is one that merits little discussion. Apart from the
fact that the assertion is not supported by any record
evidence, it must fail because it flies in the very face of the
statute. Except for union-security agreements, Congress by
Section 8(a)(3) of the Act has declared it to be unlawful to
discriminate against employees because of union member-
ship. Section 8(b)(2) makes the strictures of Section 8(a)(3)
5 It is undisputed that Local 851 has refused to issue ' seniority 10(b) of the Act The fact that the discriminatory condition began in 1968
classifications to members of Local 329 ever since the seniority system was does not preclude an, adjudication of its illegality during the 6-month
adopted in 1968, and apparently the complaint uses a June 1, 1970 date as period preceding the filing and service of the charges herein as the
the beginning date of the violation because of the limitations of Section unlawful condition is a continuing one.
LOCAL NO. 851, LONGSHOREMEN 1031
applicable to labor organizations and admits of no such
exception as Local 851' s assertion envisions.
Local 85 l's companion assertion that members of Local
329 owe an obligation to Local 329 which makes them
unreliable as a source of supply of workmen is also not
supported by the record. There is no probative evidence
that members of Local 329 have failed to fulfill assignments
by virtue of obligations to Local 329. Should this be a
problem , Local 851 could easily adopt rules (applicable to
all applicants) to insure that its commitments will be
fulfilled.
In short, on the record before me, it is clear that Local
851 has discriminated against applicants for seniority
classification in its hiring hall on the basis of their
membership in Local 329, and, by virtue of its exclusive
hiring agreement with the Association, it has caused the
employer members thereof to discriminate against mem-
bers of Local 329 and thereby violated Section 8(b)(2) and
(1)(A) of the Act.
The foregoing disposes of the principal issue in this case.
The complaint does not allege that the exclusive hiring
agreement between Local 851 and the Association is
unlawful, nor does it allege that the hiring hall established
pursuant thereto is operated in a discriminatory manner,
except as to the practice followed with regard to the
selection of men for work from the casual class, the only
class in which members of Local 329 are permitted to shape
up. The complaint alleges that Local 851 maintains a
practice in the selection of men for work from the casual
class of according preference in assignments first to
members of Local 851, and,then to applicants who are not
members of Local 329, over members of Local 329. This
allegation is supported by the testimony of General
Counsel's witnesses that Local 329 members are the last to
be selected for employment and that business agent Batiste
had been heard to instruct the gang foremen to practice
such discrimination . Batiste did not deny the accusation.
To the contrary, he admitted it.
Q. (By Mr. Dunn) Have you instructed your gang
foremen to pick up members of 851 before they pick up
members of 329? Yes or no.
A. Yes.
Q. And that is the practice that your gang foremen
are supposed to follow, is it not?
A. Follow that for the reasons that I stated.
The reason given by Batiste was that Local 851 is
supposed to hire qualified men, and Local 851 knew the
qualifications of its members better than it knew the
qualifications of members of Local 329.
It is clear that preference for Local 851 men cannot be
justified on such a blanket criterion. As the record
indicates , the Charging Parties are longshoremen with years
of experience and generally known by officers of Local 851
and by many gang foremen . As a group they must be
presumed to share the same skills and to be burdened with
the same disabilities as a group of Local 851 members, and
any system of preference based on a presumption that
Local 851 members are better qualified than nonmembers
is nothing more than a system of blatant discrimination
based on union membership.
Respondent contends that the records showing the hours
of work received by members of Local 329 during the
period from October 1 , 1969, to September 30, 1970 , refute
any assertion of preference for members of Local 851. I do
not agree . The record indicates that the hiring hall is open
for business 365 days a year. Longshoremen registered with
the hiring hall are not required to shape up on any given
day or number of days . They may shape up I day a week or
7 days a week . Under these circumstances , the fact that
members of Local 329 may have received a substantial
amount of work, perhaps in some cases equivalent to the
amount received by members of Local 851, may be
attributable to the greater frequency of their appearance for
the shape up, and a mere comparison of hours worked
would not negate a finding of discrimination against them
on some of the days when they shaped up . In my judgment,
the records of hours of work received by members of Local
329 are insufficient to overcome the admission by Batiste
that preference was accorded to members of Local 851.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III
above , occurring in connection with the operations of the
Association and its members described in section I above,
have a close , intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, it will be recommended that they be
ordered to cease and desist therefrom and that they take
certain affirmative action designed to effectuate the policies
of the Act.
Since Local 851 has unlawfully refused to give seniority
classifications to members of Local 329 in accordance with
the provisions of its hiring hall and seniority system , it shall
be recommended that it be required to give members of
Local 329 seniority classification on the same basis that
seniority classification has been accorded to all applicants.
Insofar as the period since 1956 is concerned , members of
Local 329 who have applied for seniority classification (i.e.,
the Charging Parties herein) and those who apply hereafter,
are to be given credit for all hours of work in the port of
Galveston working for employers under the jurisdiction of
Local 851 as reflected in the records of the , West Gulf
Maritime Association ,, or such other records as have been
maintained or are being maintained which reflect such
hours of work . As to the period before 1956 , as noted
earlier, no records are available from the West Gulf
Maritime Association , and it appears that applicants for
classification in 1968 were accorded credit for all hours of
work in the port of Galveston whether or not performed for
employers under the jurisdiction of Local 851. This suggests
that such applicants were accorded credit for hours worked
for employers under the jurisdiction of Local 329 and that
members of Local 329 should likewise be accorded credit
for all their hours of work in the port of Galveston before
1956 , including the hours of work for employers under the
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jurisdiction of Local 329. However , there is a suggestion in
the record that during the period of time before 1968 only
members of Local 329 were referred to jobs with employers
with whom Local 329 had exclusive hiring rights. Accord-
ingly, any applicant for seniority classification by Local
851, who was not a member of Local 329, would have had
no hours of work under the jurisdiction of Local 329 for
which he was given seniority credit. If, contrary to the
suggestion of discrimination by Local 329, Local 329 did
assign jobs to nonmembers, they would have been given
seniority credit only in those years where they worked in
excess of 700 hours. I am convinced that Local 851 has had
no applicants for seniority classification who were not
members of Local 329 who obtained any credit for work
under the jurisdiction of Local 329. I therefore recommend
that members of Local 329 receive no credit for hours of
work performed for employers under the jurisdiction of
Local 329. However, since it appears that applicants for
seniority classification received credit for hours of work for
employers not under the jurisdiction of either Local 329 or
Local 851, then members of Local 329 who also worked for
such employers should also receive credit for their hours of
work.
By virtue of Local 851's refusal of seniority classification
to members of Local 329, it is evident that some members
of Local 329 may have suffered loss of employment by not
being placed in their rightful seniority group . Furthermore,
it has been found that Local 851 practiced discrimination
against members of Local 329, and against other applicants
who were not members of Local 851, in the assignment of
work to applicants in the casual class, and presumably this
discrimination has resulted in a loss of earnings.
The General Counsel asks for a backpay remedy without,
however, indicating what scope it should have; that is,
whether it should be limited to the Charging Parties only, to
members of Local 329 generally, or to all applicants who
are not members of Local 851.' As a threshold matter, it
must be noted that the manner in which the hiring hall is
operated renders it difficult to devise a formula for the
determination of backpay. Thus, the hiring hall is open 7
days a week and an individual is free to seek assignment as
frequently or infrequently as suits him. No records are kept
showing who shapes up. In addition, individuals are free to
turn down offers on certain gang crews or for certain cargo,
and cotton cargo is treated differently from general cargo.
Thus, an individual who shapes up every day and who can
work all kinds of cargo will get more work than one who
shapes up infrequently and who handles only one kind of
cargo. The difficulties of computing how much was lost in
wages by Local 851's discrimination against applicants for
jobs who were either members of Local 329 and/or
nonmembers of Local 851 is no reason for withholding a
recommendation that backpay be awarded. This very
problem and the guiding principles were discussed in Local
1566, International Longshoremen's Association, 145 NLRB
1417, 1420, where, despite difficulties similar to the one
presented herein, a formula was arrived at which sought to
the extent possible to compensate the discriminatees for the
losses they had suffered by reason of the union's unlawful
conduct. A similar formula may be appropriate here, but
this is a matter to be determined at the compliance stage.
All that need be decided here is whether or not backpay
should be awarded.
The record in the instant case reveals blatant discrimina-
tory practices by Local 851 with no colorable defense, and
in my judgment a remedy which did not require it to
reimburse the class of employees discriminated against
would almost ensure the continuation , albeit under some
form of adaptation , of the discriminatory practices. As a
matter of fact, in view-of the manner in which gang foremen
select a gang , based on subjective evaluations of the ability
of the men at the shape up, I am not confident that
discrimination against members of Local 329 , and other
applicants who are not members of Local 851, may not be
practiced with impunity despite the cease-and-desist
provisions of the recommended order herein, and the
possibility of another backpay order against Local 851 in
the event of future discrimination appears to me to be a
necessary deterrent if the policies of the Act are to be
effectuate . I shall therefore recommend backpay as follows:
(a) to the Charging Parties , to the extent that they suffered
loss of wages by reason of the denial of their requests for
seniority classification so that they received assignments of
work only from the casual group rather than from such
seniority classification group to which they should have
been assigned; (b) to the Charging Parties , to members of
Local 329 generally, and to other applicants for employ-
ment in the casual group who are not members of Local
851.
The recommendation of backpay for members of Local
329 generally, and for all applicants for employment who
are not members of Local 851 , is based on the finding that
Local 851 practiced discrimination against all members of,
Local 329 and nonmembers of Local 851 , not merely
against the Charging Parties.6
This ' does not mean that merely because an individual
was a member of Local 329 he is entitled to backpay.
Unless an individual attempted to use Local 851's hiring
hall, it could not be said that Local 851 caused the employer
members of the Association to discriminate against him.
Accordingly backpay for members of Local 329 under this
recommendation would depend on a showing that an
individual was a regular user of Local 851's hiring hall. For
example , if it appears that an individual obtained
employment through Local 851 for 104 hours per calendar
quarter (the equivalent of one day per week for 13 weeks)
the Board would be justified in concluding that he was a
regular user of Local 85 l 's hiring hall and that he is entitled
to backpay by reason of Local 851's discriminatory
practice . (In using the figure of 104 hours as an example of
a regular user, I am not suggesting that that precise number
of hours be used. A greater or lesser number of hours may
be more appropriate. This is for the General Counsel to
determine at the threshold in working out compliance or
preparing a backpay specification.)
The same consideration would apply in determining
whether other applicants for employment who were not
members of Local 329 or Local 851 would be entitled to
6 Compare Local 138, Intl Union of Operating Engineers (Nassau and among the individuals to be awarded backpay "other members of the
Suffolk Contractors, Inc), 123 NLRB 1393, 1407, where the Board included reform group."
LOCAL NO. 851 , LONGSHOREMEN 1033
backpay. In short, under the terms of this recommendation,
u: order to qualify for backpay an individual would have to
show more than that he was a member of Local 329 or that
he was a longshoreman.
CONCLUSIONS OF LAW
1. West Gulf Maritime Association and its employer
members are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local No. 851, International Longshoremen's Asso-
ciation, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By telling applicants for employment that they would
not be given seniority classification because of their
membership in Local 329, International Longshoremen's
Association, AFL-CIO, and instructing foremen in their
presence to hire members of Local 851 in preference to
other applicants, and by implying to an applicant that he
would have received seniority classification had he not filed
an unfair labor practice charge, Respondent Local 851 has
engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act.
4. By maintaining a practice within the "casual" hiring
hall group of according preference in assignment of jobs to
members of Respondent Local 851 over members of Local
329 and other applicants who are not members of
Respondent Local 851, and by refusing to issue seniority
classifications to members of Local 329 because of their
membership in Local 329, Respondent Local 851 has
engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(b)(2) and (1)(A) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 7
ORDER
Respondent, Local 851, International Longshoremen's
Association, AFL-CIO, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Telling applicants for seniority classification they will
not be issued classifications because of their membership in
Local 329, International Longshoremen's Association,
AFL-CIO.
(b) Instructing foremen to give preference in employment
from among individuals in the "casual" group to members
of Local 851 over other applicants.
(c) Implying to applicants for seniority classification that
seniority classification has been withheld because they filed
unfair labor practice charges.
7 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided by
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
s In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
(d) Maintaining a practice within the "casual" hiring hall
group of'according preference in the assignment of jobs to
members of Local 851 over members of Local 329 and
other applicants who are not members of Local 851.
(e) Refusing to issue seniority classifications to members
of Local 329 because of their membership in Local 329.
(f) In any other manner restraining or coercing employ-
ees, or applicants for employment, in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action found necessar-
y to effectuate the policies of the Act:
(a) Issue seniority classifications to John H. Biggers, Jerry
C. Biggers, Thomas Lee Young, Samuel Stephens, Jr.,
Clemis Jackson, and J.W. Lyons, and to all others who
request seniority classification, in accordance with the same
standards used in establishing the seniority system as
outlined in the Remedy section above.
(b) Make whole John H. Biggers, Jerry C. Biggers,
Thomas Lee Young, Samuel Stephens, Jr., Clemis Jackson,
and J. W. Lyons, and all other applicants for employment
from Local 85 l's hiring hall, for any loss of pay suffered by
them by reason of Local 851's discriminatory operation of
the hiring hall in accordance with the recommendation in
the Remedy section above.
(c) Notify John H. Biggers , Jerry C. Biggers, Thomas Lee
Young, Samuel Stephens, Jr., Clemis Jackson, and J. W.
Lyons, in writing, that Local 851 will issue them seniority
classifications, and notify members of Local 329, by letter
to Local 329, that they are eligible to apply for seniority
classification and that, upon request, Local 851 will issue
them seniority classifications according to the same
standards applied to all other applicants.
(d) Preserve and make available to the Board and its
agents, upon request, for examination and copying, all
records relevant and necessary to a determination of the
seniority classifications to be issued and backpay due under
the terms of this Recommended Order.
(e) Post at its premises at Galveston, Texas, copies of the
notice attached hereto and marked "Appendix." 8 Copies of
said notice, on forms provided by the Regional Director for
Region 23, after being duly signed by a representative of
Respondent, shall be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to applicants for employment are customarily
posted .9 Reasonable steps shall be taken to insure that said
notices are not altered, defaced or covered by any other
material.
(f) Sign and mail sufficient copies of the aforesaid notice
to the Regional Director for Region 23 for posting by Local
329, if willing, in the place where it customarily posts
notices to its members.
(g) Notify the said Regional Director, in writing, within
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD "
9 The unfair labor practices found herein have been directed against
nonmembers of Local 851 who are applicants for employment. In the
circumstances , a notice headed "Notice to Members" would be
inappropriate and ineffective Accordingly , I have adopted a Notice
heading appropriate to the case
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
20 days from the receipt of this Decision, what steps have insofar as it alleges unfair labor practices not specifically
been taken to comply herewith.10 found herein.
It is further ordered that the complaint be dismissed
10 In the event that this recommended Order is adopted by the Board from the date of this Order, what steps the Respondent has taken to
after exceptions have been filed, this provision shall be modified to read: comply herewith."
"Notify the Regional Director for Region 23, in writing, within 20 days