Marine Warehouses Local 1454

National Labor Relations Board - Board Decisions

Mar 31, 1972

196 N.L.R.B. 16 (N.L.R.B. 1972)

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marine Warehouses Local 1454 and the International
Longshoremen's Association and Bowker Storage
and Distributing Co., Inc . Case 1-CB-1822
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
March 31, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On November 30, 1971, Trial Examiner Marion C.
Ladwig issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief; the General Counsel filed a reply
brief in support of the Trial Examiner's Decision; and
the Charging Party filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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
briefs and has decided to affirm the Trial Examiner's
rulings,' findings,2 and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Marine Warehouses Local 1454, affiliated with the
International Longshoremen's Association, its offi-
cers, agents, and representatives, shall take the action
set forth in the Trial Examiner's recommended Order.
i The Respondent , in its exceptions , contends that the Trial Examiner
erred by denying its motion for a continuance of the hearing for the purpose
of allowing the Respondent 's dispatcher, Timothy Moriarty, to testify. At the
hearing, the Trial Examiner denied Respondent 's motion for a continuance
because the proffered testimony would be cumulative but allowed Respon-
dent to make an offer to proof concerning Moriarty's testimony. The Trial
Examiner then rejected this offer of proof as evidence and did not consider
it in his decision . While we affirm the Trial Examiner' s denial of
Respondent's motion , we further find that the offer of proof , even if accepted
and considered , would not affect the results herein.
2 The Trial Examiner found that Respondent violated Section 8(bX2)of the
Act by striking on June 3 to force the Company to lay off nonunion employee
Ctampo. We agree and so find . In reaching this conclusion, we note that the
record establishes that Respondent , beginning with its unlawful April strike
and admitted demand to the Company to lay off nonunion men in preference
to union men ending with a similar unlawful strike and demand in July, had
pursued a course of action designed to discriminate against nonunion em-
ployees . Thus with this background , we find that the June 3 strike which
resulted in the transfer of nonunion employee Ciampo was in furtherance of
Respondent's discriminatory scheme and violative of Section 8(bX2)
MARION C. LADWIG, Trial Examiner: This case was tried
at Boston , Massachusetts, on September 21-22, 1971.' The
charge was filed by the Company on June 3 and the com-
plaint was issued on August 5. The primary issues are (a)
whether Local 1454, herein called the Union, in operating
its hiring hall unlawfully caused the Company to accept
referrals of union members in preference to nonmembers,
and (b) whether Local 1454 and its International, herein
called the Respondents, repeatedly made threats and en-
gaged in strikes in order to force the Company to give
preference to union employees over nonunion employees in
ob tenure, in violation of Section 8(b)(2) of the National
Labor Relations Act.
Upon the entire record,2 including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Company,
I made the following:
FINDINGS OF FACT
I JURISDICTION
The Company, a Massachusetts corporation, operates a
public warehouse at Everett, Massachusetts, where it causes
large quantities of merchandise to be purchased and trans-
ported in interstate commerce and from foreign countries,
and annually provides service valued in excess of $50,000 to
firms engaged in interstate commerce . The Respondents
admit, and I find, that the Company is engga erin com-
merce within the meaning of Section 2(6) and(') of the Act,
and that the Respondents are labor organizations within the
meaning of Section 2(5) of the Act.
II ALLEGED UNFAIR LABOR PRACTICES
A. Continuing Dispute
The Company, operating a public warehouse, employs
about 18 regular employees and between 1 and 7 casual
employees as needed. The Union is a small ILA local, with
about 135 members working at seven warehouses. About
115 of the union members work as regular employees; the
others are casual employees.
The collective-bargaining agreement, to which the Com-
pany and the Union are parties, contains a no-strike clause
and a broad arbitration clause . The arbitration clause re-
quires that all disputes arising under the agreement be set-
tled, without interruption of work, through a grievance
procedure which concludes in final and binding arbitration.
The agreement contains a union-shop provision, requiring
union membership after 30 consecutive days of employ-
ment. The Union operates a "hiring hall" and telephones
the Company each weekday morning to determine it casual
employees are needed. Although the Company usually hires
employees through the hall, there is no mention of the hiring
hail or the referral service in the agreement, and therefore
i All dates are in 1971 unless otherwise stated.
2 Resp. Exh. 3-1 through 67 are stricken from the record. They were
withdrawn at the close of trial for duplication within 5 days. Without expla-
nation, the Respondents have failed to return the originals or to submit any
duplicates-thereby failing to submit documentary evidence in duplicate as
required by Sec. 102.38 of the Board's Rules and Regulations.
196 NLRB No. 14
MARINE WAREHOUSES LOCAL 1454 17
no written requirement that employees be hired exclusively
through the hall.
For months, the Company complained that it was not
satisfied with the casual employees being referred through
the hiring hall. The Union, in turn, complained that the
Company was discharging union employees and retaining
nonunion employees, thereby discriminating against union
members. As testified by Union Financial Secretary John
Kiely, the human relations (grievance) committee went to
the warehouse a total of 28 times on "regular house griev-
ances ... like, if [the Company] had a nonunion man there
and laid off a union man. That was discriminating [against]
the union man. We'd go over." Similarly, committeeman
Robert Davis testified that all the grievances involved the
same thin: the Company complaining about the union
employees work and wanting better employees, and the
Union complaining that by not working the union employ-
ees, the Company was discriminating against union mem-
bers.
The dispute continued. The Company took the position
that unless it could get better employees, "there's no chance
for our company to go anywhere." From time to time it sent
nonunion applicants to the hall for referral and requested
them specifically by name. On several occasions, it adver-
tised in the newspaper for qualified employees. The Union
complained that it accepted nonunion employees into its
membership upon the urgings of the Company, and that
thereafter the Company would discharge them, claiming
that they were not satisfactory. It complained that the Com-
pany would not accept referrals of certain union members,
but would call for nonmembers. It complained of the high
cost of lost time paid members of the grievance committee
for handling grievances involving the layoff or discharge of
union members and the retention of nonmembers. It ac-
cused the Company's vice president, David Petrie, of stating
during one grievance meeting that it cost the Union $700 the
last year for handling the grievances there, and "It's gonna
cost youse $7,000 this year, `cause I'm out to get youse. ' The
Union did not file any charge against the Company. Al-
though the agreement contains a "just cause" discharge
provision, the Union did not take any of the grievances to
arbitration.
Finally, despite its no-strike commitment, the Union re-
sorted to repeated strikes. It struck for 1 day in April and
in June, and for 2 weeks in July. The General Counsel
contends that the strikes, and certain alleged threats, were
unlawfully motivated to force the Company to give union
employees preference over nonunion employees. Tb:e Union
(which did not file a brief) contended at the trial that the
strikes were "legal and proper" because the Company was
engaging in apattern of illegal discrimination against union
employees "simply because they are union members."
B. Alleged Illegal Strikes and Threats
1. The April 30 strike
On Thursday, April 29, the Company discharged two
union members , Anthony Scardetta and William Dalton,
Jr., because of unsatisfactory work performance . The next
morning, it assigned the work they had been doing (check-
ing and unloading a freight car) to two nonunion employ-
ees, Gerald Dame and Steven Dunn , whom it had hired
earlier that week without going through the union hiring
hall.
Financial Secretary Kiely credibly testified that on that
Thursday evening , he received a telephone call from union
steward Norbert Talbot who reported "that they had laid
off two of our union men, and they had kept two nonunion
men, which he felt ... was discriminating against our union
men." The next morning, April 30, Kiely went with commit-
teeman Davis to the warehouse and called a strike. Ware-
house Manager Robert Pohl notified Vice President Petrie
who came to the warehouse and talked to Kiely and Davis.
In Kiely's words, "We told him that the procedure in the
Union-that a nonunion man would ... go ahead of a man
that was in the Union ... and, if he didn't do this, he was
discriminating against us ." The Company laid off the two
nonunion employees, the strike ended, and the employeees
returned to work the following Monday morning. Kiel
testified, "And, we came to an agreement with [Mr. Petrie ,
that ... any other time , we would lay off the nonunion man,
in preference to the union man."
The complaint alleges that the "Respondents struck the
Company ... in order to cause the Company to discharge
Gerald Dame and Steven Dunn because of their lack of
membership" in the Union. In agreement, I find that the
Union struck the Company for that unlawful purpose,
thereby violating Section 8(b)(2) of the Act, although there
was no explicit demand for the discharge of nonunion em-
ployees Dame and Dunn. By demanding that the nonunion
men be laid off first, and agreeing to return to work after
the Company agreed to discharge Dame and Dunn, the
Union demonstrated that it was striking for that unlawful
purpose. However, the evidence shows that it was only the
Union (Local 1454) and not the other respondent, the Inter-
national, which engaged in the illegal strike action. The
following week, International Representative Edward Dal-
ton participated in a meeting with union and company rep-
resentatives in an effort to settle the long-brewing dispute,
but there is no showing that he had any connection with the
calling of the illegal strike. (I consider it an inadvertence on
the part of union counsel when he admitted in the answer
the general allegation in the complaint that Dalton and four
of the Local's representatives were "agents of the Respon-
dents"-instead of admitting that Dalton was an agent of
the International and the Local's representatives were
agents of the Local.)
The complaint also alleges that the Respondent threat-
ened on April 30 to continue the strike unless Dame and
Dunn were discharged, but the evidence fails to substantiate
that allegation.
2. The June 3 strike
On Wednesday, June 2, the Company again discharged
union employee William Dalton, Jr. (who had been rehired
after being discharged on April 29) and retained three non-
union employees. The next morning, Thursday, June 3, the
Union went on strike.
The new steward, George Locke, met briefly that Thurs-
day morning with Vice President Petrie and Manager Pohl,
and told them (in Locke's words), "I believe Dalton should
have been kept, and I think you're just prejudiced against
the man." In a latter meeting that day, as he credibly testi-
fied, Locke told them that the union officers "left it in my
hands" to settle. Petrie asked "do you think that the strike
would end" if Petrie put nonunion employee George Ciam-
po in another warehouse? (The Company had hired Ciampo
on Tuesday of that week after Petrie personally took him by
the union hall for referral and Pohl specifically requested
him by name.) Locke responded , "I assume it would]." This
settlement was approved by the union officials, Ciampo was
transferred to another warehouse, and the employees re-
turned to work the next morning. (Meanwhile, the Compa-
ny filed the charge herein, and International Representative
Dalton arranged for the Company to recall Cianipo through
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hiring hall. Ciam o worked 4 days in the warehouse the
following week, andpthen was transferred a second time.
The complaint does not allege that the second transfer was
caused by the union.)
I find that this second strike, which occurred under cir-
cumstances similar to those at the April 30 strike and which
was settled by the transfer of a nonunion employee, was
called for the same unlawful purpose. I therefore find, as
alleged in the complaint, that the Union (but not the Inter-
national) called the June 3 strike to force the Company to
lay off Ciampo because of his lack of union membership, in
violation of Section 8(b)(2) of the Act. I find, however, that
the credible evidence does not substantiate the further alle-
gation that on June 2, the Union specifically threatened to
strike unless Ciampo was laid off.
3. The July 16 strike
During the week of July 12, when Vice President Petrie
realized that casual employee Ralph Saunders had been
rehired through the union hall,.and that Saunders had accu-
mulated about 960 hours of work (only 2 weeks short of the
1,040 hours required for becoming a regular employee),
Petrie decided to discharge him. He was 19 or 20 years of
age, his work had not been satisfactory, and Petrie did not
consider him qualified for permanent employment. (Union
steward Locke admitted that the Company had talked to
him "numerous" time about Saunders' attitude, and that he
told Saunders a number of times , "Listen, smarien up and
get on the ball here.")
On July 13, as steward Locke credibly testified, Manager
Pohl "told me Dave [Petrie] found out that Ralph Saunders
is here, and he does not want him." Locke pointed out that
there were nonunion men working at the time and asked if
Petrie was laying off "down to the list." (This question
referred to laying off not only Saunders, the only casual
employee who was a union member, but also the four non-
member casual employees-down to the seniority list of 18
regular employees who were all union members.) Pohl an-
swered, "No, we're just laying off Saunders." Two days
later, on July 15, Pohl told Locke, "Saunders is being laid
off tonight." Locke asked, "How many men?" Pohl replied,
"Just one, Ralph Saunders." The next day, the Union went
on strike.
It is undisputed that during the strike, as Vice President
Petrie credibly testified, both Financial Secretary Kiely and
committeeman Davis said "we had laid off a union man,
while nonunion men were working. That we had no right to
do so." The strike continued until the Company agreed
(presumably on July 30) to lay off all its casual (nonunion)
employees-"down to the list" of regular (union) employ-
ees. The union employees returned to work on August 2.
I find, as alleged in the complaint, that the Union struck
on July 16 to cause the Company either to reinstate union
employee Saunders or to lay off all nonmember employees
in violation of Section 8(b)(2) of the Act. I further find,
however, that steward Locke did not specifically threaten a
strike, as alleged in the complaint.
C. Referrals from Union Hall
As previously indicated, the collective-bargaining agree-
ment contains no requirement that the Company hire exclu-
sively through the union hall. The Union did encourage the
Company to hire union members through the hall, but it
often referred nonmembers when specifically requested by
the Company and it did not strike when the Company re-
peatedly placed newspaper ads for employees and hired
nonunion applicants without union referrals . The only
times it struck were when the Company laid off or dis-
charged a union member while continuing to employ non-
members (as described above).
Of course , where there is an exclusive hiring arrangement,
a union must make referrals on a nondiscriminatory basis,
without reference to union membership or nonmembership.
However where , as here , the employer is not required to hire
its employees through a union hiring hall , the union may
seek employment for, and refer only , its own members.
Unless the Company agrees to hire exclusive ly through the
union hall , it is entitled to hire-on a nondiscriminatory
basis-either union members referred by the Union or non-
members from other sources , without union referrals (as it
has done).
Inasmuch as the General Counsel has failed to establish
that the Company and the Union have entered into an
exclusive hiring hall arrangement , I find that the preference
given by the Union to its own members in making referrals
from its "hiring hall" did not violate Section 8 (a)(2) of the
Act.
CONCLUSIONS OF LAW
1. By engaging in strikes on April 30, June 3, and July
16 to force the Company to discriminate against nonunion
employees in violation of Section 8(a)(3) of the Act, the
Union engaged in unfair labor practices affecting com-
merce within the meaning of Sections 8(b)(2) and 2(6) and
(7) of the Act.
2. The evidence does not establish that the International
called or participated in the strikes, or that the Respondents
unlawfully threatened strike action.
3. The Union did not violate the Act by giving preference
in referrals to union members.
REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent Local 1454 be ordered to
cease and desist from the unfair labor practices found and
to take certain affirmative action.
The Respondent Local having caused the Company dis-
criminatorily to discharge nonunion employees Gerald
Dame and Steven Dunn on April 30, to transfer nonunion
employee George Ciampo on June 3 (until he was recalled
on June 8), and to lay off other nonunion employees on July
30, I find it necessary that the Respondent Local be ordered
to make them whole for any resulting loss of earnings, com-
puted on a quarterly basis, plus interest at 6 per cent per
annum, as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis. Plumbing & Heating Co., 138
NLRB 716 (1962), from date of discrimination until 5 days
after the Respondent Local notifies the Company that the
Local has no objection to their employment (except that the
backpay for Ciampo shall be limited to the period from
June 3 until June 8).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:3
3 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 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.
MARINE WAREHOUSES LOCAL 1454
ORDER
Respondent , Marine Warehouses Local 1454 , affiliated
with International Longshoremen 's Association , its officers,
agents , and representatives , shall:
1. Cease and desist from engaging in any strike against
Bowker Storage and Distributing Co., Inc ., to cause it to lay
off, discharge, transfer , or otherwise discriminate against
an. employee because of lack of union membership.
Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Make whole George Ciampo , Gerald Dame , Steven
Dunn, and nonunion employees laid off by the Company
on July 30 for their lost earnings in the manner set forth in
the section of this Decision entitled "Remedy."
(b) Notify the Company in writing , with a copy to each
of the above-mentioned persons , that the Local has no ob-
jection to the Company employing them.
(c) Post in conspicuous places in its offices , meeting and
referral halls , and all other places where notices to its mem-
bers are customarily posted, copies of the attached notice
marked "Appendix ." Copies of the notice , on forms pro-
vided by the Regional Director for Region 1, after being
duly signed by an authorized representative of the Respon-
dent , shall be maintained for 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to en-
sure that the notices are not altered, defaced , or covered by
any other material.
(d) Sign and return by mail to the Regional Director,
immediately upon receipt from him , copies of the notices
for posting by the Company.
(e) Notify the Regional Director , in writing, within 20
days from the date of this Decision , what steps the Respon-
dent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed insofar
as it alleges violations of the Act not specifically found.
° In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board 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."
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
19
The National Labor Relations Board having found, after
trial, that we violated Federal Law by going on three strikes
against Bowker Storage and Distributing Co., Inc., to force
it to discriminate against nonunion employees:
WE WILL PAY George Ciampo, Gerald Dame, Steven
Dunn, and the nonunion employees laid off on July 30,
1971, the earnings they lost as a result of their transfer,
discharge, or layoff, plus 6-per cent interest.
WE WILL NOTIFY the Company in writing, with copies
to them, that we have no obejction to the Company
employing them.
WE WILL NOT go on strike against the Company to
force it to discriminate against nonunion employees
MARINE WAREHOUSES LOCAL 1454,
AFFILIATED WITH INTERNATIONAL
LONGSHOREMEN'S ASSOCIATION
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Seventh Floor, Bulfinch Buildin It
15 New Chardon Street, Boston, Massachusetts 0211,
Telephone 617-223-3300.