Moore-McCormack Lines, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1955

113 N.L.R.B. 668 (N.L.R.B. 1955)

668 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD (3) To impose work permit fees on nonunion employees who work within our craft jurisdiction in the AGC unit. WE WILL NOT in any like or related manner restrain or coerce employees or prospective employees of employer-members of As- sociated General Contractors, Southern California Chapter, in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement re- quiring membership in Local 12 as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL make Robert A. Holderby whole for any loss of pay he may have suffered as a result of the discrimintion against him. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL.No.12, AFL, Labor Organization. Dated---------------- By-------------- -------------------:--- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. Moore-McCormack Lines, Inc. and American Federation of Labor- International Longshoremen's Association International Longshoremen's Association, Independent, and -International Longshoremen's Association , Independent, Local No. 895 and American Federation of Labor-International Long- shoremen's Association Moore-McCormack Lines, Inc. and International Brotherhood of Longshoremen, AFL International Longshoremen's Association, Independent, and Local 895, International Longshoremen 's Association, Inde- pendent and International Brotherhood of Longshoremen, AFL. Cases Nos. 2-CA-9639, 2-CE-1128, 2-CA-394., and 2-CR- 1302. August 15,1955 DECISION AND ORDER On February 18,1955, Trial Examiner Thomas N. Kessel issued his Intermediate Report in this proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take cer- tain affirmative action, as set forth in the copy of the Intermediate Re- -port attached hereto. The Trial Examiner also found that the Re- spondents had not engaged in certain other alleged unfair'labor 113 NLRB No. 75. M6ORS-1VICC0RMACK LINES, INC. 669 practices and recommended a dismissal of those allegations. There- after, the Respondents, the General Counsel, the Charging Unions, and William McMahon (on whose behalf charges were filed) filed excep- tions and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made ,at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in the case,' 'And hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent, Moore-McCormack Lines, Inc., its officers, agents, successors, and assigns, shall : 1: Cease and desist from : (a) Discouraging membership in the International Brotherhood of Longshoremen, AFL, or in any other labor organization of its employees, by discriminating in regard to their hire or tenure of em- ployment or in any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be •4iffected-by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with the Respondent Unions, Inter- national Longshoremen's Association, Independent, and its Local No. 895, make whole William McMahon for any loss of earnings suffered by him because of the discrimination against him in the manner pre- scribed in the section of the Intermediate Report entitled "The Remedy." (b) Post in conspicuous places at its place of business at pier 32, New York City, copies of the notice attached to the Intermediate Re- port marked "Appendix A." 2 Copies of said notice, to be furnished 3 The requests of the Charging Unions and of William McMahon for oral argument are hereby denied, as the record, exceptions , and briefs adequately present the issues and positions of the parties 2 This notice shall be amended by substituting for the words , "The Recommendations of a Trial Examiner," the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words " Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 670 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Regional Director for the Second Region, shall, after being duly signed by its authorized representative, be posted by the Respondent Company immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other ma- terial. (c) Upon request make available to the Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of back pay due in accordance with this Order. (d) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps the Re- spondent Company has taken to comply therewith. B. The Respondents, International Longshoremen's Association, Independent, and its Local No. 895, their officers, agents, representa- tives, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause the Respondent Company, Moore-McCormack Lines, Inc., to discharge any of its employees be- cause of their activities in behalf of the International Brotherhood of Longshoremen, AFL, thereby discouraging membership in that or any other labor organization of their choosing, or engaging in any like or related conduct constituting interference with, restraint, or coercion of employees of Moore-McCormack Lines, Inc., in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with the Respondent Company, Moore- McCormack Lines, Inc., make whole William McMahon for any loss of earnings suffered by him because of the discrimination against him in the manner prescribed in the section of the Intermediate Report ,entitled "The Remedy." (b) Post in conspicuous places at their business offices and meeting halls in New York City, or other places where notices to their members are customarily posted, copies of the notice attached to the Intermedi- ate Report marked "Appendix B." 3 Copies of said notice, to be fur- nished by the Regional Director for the Second Region, shall, after being duly signed by their authorized representatives, be posted by 8 See footnote 2, supra. MOORE-McCORMACK LINES, INC. 671 the Respondent Unions immediately upon receipt thereof and main- tained by them for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent Unions to insure that said notices are not altered, defaced, or covered by any other material. ' (c) Mail to the Regional Director for the Second Region signed copies of the above notice, for posting, with permission of the Re- spondent Company, Moore-McCormack Lines, Inc., at its place of business at pier 32, New York City, in all places where notices to or communications for its employees are customarily posted. Copies of said notices, to be furnished by the Regional Director for the Second Region, shall, after being signed as provided in paragraph 2 (b) above, be forthwith returned to the Regional Director for posting. (d) Notify the Regional Director for the Second Region in,writing, within ten (10) days from the date of this Order, what steps have been taken to comply therewith. IT IS FURTHERJEORDERED that the complaint, insofar as it alleges that the Respondents have violated the Act by conduct other than that found to be violative herein, be, and it hereby is dismissed. CHAIRMAN FARMER and MEMBER MURDocK took no part in the con- sideration of the above Decision and Order. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge in Case No. 2-CA-3639 filed by the American Federation of Labor-International Longshoremen's Association, herein called the AFL,' against Moore-McCormack Lines, Inc., and upon a charge and amended charge in Case No. 2-CB-1128 against the International Longshoremen's Association, Independent, herein called the ILA, and against ILA Local No. 895, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region (New York City), issued on March 3, 1954, an order consolidating these cases and a consolidated complaint therein. Upon charges and amended charges in Cases Nos. 2-CA-3942 and 2-CB-1302, filed by the IBL, AFL, against the same Respondents named in the foregoing cases, the General Counsel, by the Re- gional Director, issued on September 14, 1954, an order consolidating all the above- captioned cases and a consolidated complaint in Cases Nos. 2-CA-3942 and 2-CB- 1302. The complaints alleged that the Respondents named therein had engaged in and were engaging in certain unfair labor practices affecting commerce within the mean- ing of the National Labor Relations Act,•61 Stat. 136, herein called the Act. Copies of the orders consolidating the cases, the complaints, the charges, and notices of hearing were duly served upon all the parties. With respect to the unfair labor practices, the complaints allege that Moore-Mc- Cormack on February 25, 1954, discharged its employee William McMahon be- cause of his membership in and adherence to the AFL in violation of Section 8 (a) (3) and (1) of the Act, and that it denied him employment on and after August 30, 1954, for the same reason in violation of Section 8 (a) (3) and (1) of the Act. The allegations of unlawful conduct against the ILA and Local No. 895 were that they attempted to cause and did cause Moore-McCormack to dis- charge and deny employment to McMahon on the aforementioned occasions be- I Subsequent to the filing of the charge in Cases Nos. 2-CA-3639 and 2-CB-1128 and the issuance of -the complaint pursuant thereto, the American Federation of Labor-Inter- national Longshoremen's Association officially changed its name to International Brotherhood of Longshoremen, AFL. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause of his activities in behalf of the AFL in violation of Section 8 (b) (2) and -(1) (A) of the Act. The answers filed in these proceedings by Moore-McCormack deny the allega- tions of statutory violations attributed to it and affirmatively assert various justifi- cations for the discharge and denial of employment to McMahon alleged by the complaints as unlawful. These justifications are alluded to, infra. The answers by the ILA and Local No. 895 also deny the commission of unlawful conduct as alleged. Pursuant to notice, a hearing was held at New York City on October 4, 5,118, and 19,,1954. The General Counsel and all other parties were represented by counsel. William McMahon was also represented by counsel. " Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence was afforded to all parties and to McMahon. The General Counsel argued orally at the close of the hearing in support of his case. Briefs were filed by the Re- spondents which have been duly considered along with the General Counsel's oral argument. Rulings were reserved on motions to dismiss the complaints made at the hearing by the Respondents. These motions are disposed of in accordance with the findings and conclusions herein. Upon the entire record in the case, and from my observation of the witnesses; I make the following: FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF THE RESPONDENT COMPANY The complaints allege and the answers of Moore-McCormack admit that Moore- McCormack Lines, Inc., is a Delaware corporation engaged in the transportation of cargo and passengers in international trade at various piers in the port of New York. During the year ending December 31, 1953,-it transported cargo from this port to foreign ports and to other States valued in excess of $100,000, and trans- ported cargo to the port of New York from foreign countires and other States valued in excess of $500,000. The revenues received for such transportation services exceeded $25,000,000. Moore-McCormack also belongs to the New York Shipping Association whose members in 1953 shipped cargo from the port of. New York (en- compassing New York and New Jersey) to foreign countries and other States valued in excess of $4,000,000. From these facts it is found that Moore-McCormack Lines, Inc., is engaged in commerce within the meaning of the Act and that assertion of the Board's jurisdiction over its business in these proceedings would effectuate the policies of the Act.. if. THE LABOR ORGANIZATIONS INVOLVED The ILA, its Local No. 895, and the IBL, AFL, formerly known as ILA, AFL, are labor organizations admitting to membership employees of Moore-McCormack. III. THE UNFAIR LABOR PRACTICES These proceedings stem from the struggle between the ILA and the AFL waged in 1953-54 for supremacy as representative of the dockworkers of the New York water- front. The events which are of particular concern here relate to the employment of William McMahon on pier 32 by Moore-McCormack during the course of the interunion rivalry. The Discharge of McMahon on February 25, 1954 McMahon's employment for Moore-McCormack at pier 32 began in 1940 as a longshoreman. ILA Local No. 895, of which McMahon was a member, was then the bargaining representative of the employees on pier 32 and had contractual re- lations with Moore-McCormack. About a year after he started to work on the pier, McMahon was assigned to duty as a hi-lo driver 2 and continued in this capacity, except for a 2-year period of military service, until either 1946 or 1947.3 In May 1947 he was elected ILA shop steward by his fellow dockworkers on pier 32 and exercised his stewardship without incident until September 28, 1953. 211i-lo drivers operate fork-lift trucks which move cargo about on the pier. They are also referred to as chauffeurs. 8 There is a conflict between McMahon's testimony and that of witnesses for Moore- McCormack as to the exact date when and the circumstances under which McMahon ceased to, perform duties as a hi-lo driver. I find It unnecessary to detail the testimony in question or to resolve the areas of conflict, as the events involved are not relevant to the issues to be determined herein. MOORE-McCORMACK LINES, INC. 673 At a meeting of Local No. 895 held on that date the members present voted by approximately 250-50 to secede from the ILA and to affiliate with the AFL. An- tagonism by William Coughlin, the ILA business agent , and by ILA loyalists on the pier to McMahon's presence there was manifested immediately after the meeting. McMahon gave this version , which I credit, of the ensuing events. At the meeting Coughlin had declared his determination to maintain the Local' s existence despite the disaffiliation vote. The next day when McMahon returned to work after the lunch period his timecard was not in its accustomed place in the rack. McMahon was informed by the timekeeper that he had removed it on Coughlin' s request. In a subsequent discussion at the pier gate Coughlin asked McMahon to declare which side he was on, and when he affirmed his allegiance to the AFL Coughlin replied, "Well, you can't work here." The next day when McMahon reported for work he encountered a group on the pier which included Coughlin, the pier super- intendent . Thomas H. Kane, and other Moore-McCormack officials. McMahon asserted that Coughlin could not prevent him from working, and Coughlin replied that the men would not work with him. A group of hi-lo drivers was present. John Dwyer, port director for the ILA, AFL, who had accompanied McMahon to the pier, turned to the drivers and asked them what they had against McMahon. There was no reply from them. Dwyer then asked Slevin, the Moore-McCormack hiring boss, whether he didn't want to hire McMahon. Slevin replied he had nothing to do with the matter. Slevin thereupon directed the men to.go to work and McMahon went through the gate with them and worked all that day. On October 1, 1953, pier 32 was shut down by an ILA strike resulting from expiration of the ILA con- tract on September 30 without renewal. The strike lasted about 6 days. Upon its termination on October 7 or 8, 1953, McMahon reported to the pier for work. After he had punched his card a group of longshoremen began pushing him while proclaiming , "You can't work here, you are AFL." Martin Lynch, the Local No: 895 financial secretary, was present and also told McMahon he couldn't work on the pier. George Devoe, an official for the ILA checkers union , was also present at the time. McMahon's testimony fails to reveal whether he worked on the day of this incident. It is also not clear from his testimony whether or not he worked other days at the pier after this incident. In any event he shortly afterward became a paid organizer for the newly formed ILA, AFL, and didn't again seek employment at pier 32 until February 23, 1954.4 Coughlin's account of the events occurring, immediately after the secession meet- ing of September 30 varies from McMahon's testimony in his emphasis that there was no objection by the dockworkers to McMahon's employment through the open shape whereby he would have received employment as an ordinary employee and not as an ILA steward.5 He acknowledged telling Superintendent Kane that the men would not work with McMahon if he were to be considered a steward, but denied saying that he would pull the men out on strike to prevent McMahon's em- ployment. He recalled a conversation with McMahon either on the day after the September 30 meeting or at a later time in which he was asked by McMahon "what the score was." He replied, "The men don't want to work with you on the pier." On another occasion (on a day when McMahon came to the pier with Dwyer) he' observed McMahon at work, whereupon he asked the other dockworkers why they worked with him when they had told him (Coughlin) they wouldn't work with', McMahon. They explained that they had been told that McMahon was being put on as a driver and not as a steward, but they apparently had been misled as they now saw him standing about like a steward.6 Coughlin testified that he did not tell the men to stop working and that he did not speak to the company officials on this, occasion. On February 23, 1954, an AFL delegation which included McMahon and An-' thony Pizak, a Washington official of the AFL Teamsters' Union, presented a de- mand to the Moore-McCormack pier 32 operating officials, Robert E. O'Brien 7 and Kane, that McMahon be hired and recognized on the pier as a steward for the ap- proximately 100 AFL adherents claimed to be working there. There was at that time an ILA steward on pier 32 who had been elected to that office following 4 There is no allegation in the complaint or a contention by the General Counsel that McMahon's termination of employment on pier 32 in October 1953 involved any statutory violations by Moore-McCormack or the ILA 5 According to waterfront customs stewards have supersenlority which entitles them to be the first hired and the last to be discharged 6 Up to and including the period of McMahon's ILA stewardship, stewards on pier 32 traditionally performed few if any duties for their employer. 7 O'Brien is the assistant chief of operations for Moore-McCormack on pier 32. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McMahon's departure from the pier in October 1953, and this demand was in ac- cordance with the policy which the AFL had initiated of putting AFL stewards on the piers of shipping companies where ILA stewards were recognized but where it was claimed that there were AFL members who were also entitled to be represented by a steward from their own union. Submission of the demand for McMahon's employment was accompanied by, the warning from the delegation that a picket line at the pier to protest failure to hire McMahon as requested would be honored by the Teamsters whose trucks would not. cross the picket line to deliver or receive cargo from the pier and would thereby effectively close down its operation. Relay of this information by the pier officials to Moore-McCormack executive offices resulted in instruction from that quarter to accede to the AFL demand. McMahon was there- upon advised to report to the pier the next.morning. Coughlin was on pier 32 when the arrangement to hire McMahon was made. Immediately thereafter O'Brien informed him of this action.. Coughlin then left to speak to the 10 to 12 employees 8 working on the pier and in 5 to 10 minutes returned and stated to O'Brien and Kane that the employees were walking off the pier because of the decision to hire McMahon. At the same time Coughlin indicated to O'Brien that the men were not opposed to having an AFL steward on the pier, but objected to McMahon in that capacity because he was not regarded by them as an employee of Moore-McCormack despite his former employment on the pier. The predicted walkout occurred at about 3 p. in. that day. The following morning, February 24, 1954, McMahon reported for duty at the pier . Outside, picketers carried signs bearing the following legend : "Discrimination against the ILA-Independent." O'Brien questioned McMahon and other AFL rep- resentatives regarding the absence from work of the AFL adherents who had been claimed by them to constitute part of the dock force. At 3 p. in. McMahon was excused on request to meet with AFL representatives to discuss means of obtaining AFL employees for work the next day. The following morning, February 25, 1954, the picketing continued outside the pier, and again no employees other than McMahon reported for work.9 The picketers continued to carry the signs borne by them on the preceding day. During the day an ILA delegation which included Coughlin, ILA Organizer "Teddy" Gleason, Martin Lynch, the Local No. 895 financial secretary, and Harold Bowers, the business agent for ILA Local No. 824, visited O'Brien and asked why the Company had agreed to hire and recognize McMahon as the AFL's steward on the pier. O'Brien recounted to them the threat of a Teamsters' strike and explained that the Company had yielded to the request to hire McMahon in order to keep the pier in operation. The ILA delegation replied that it did not object to the principle of having an ILA and an AFL steward on the pier, that in fact this very situation already prevailed on other piers on the waterfront, but that they opposed McMahon as steward because he was an "outsider." By this term O'Brien understood them to mean that they opposed the designation of McMahon as steward because he was not a regular employee of the Company. Upon request that they order their men back to work, the ILA group responded that'if McMahon were dismissed the picket line would be removed and the men would return to work. Later that morning O'Brien called his superiors and informed them that for the second day no employees had reported to work. He also expressed the conviction that the claim by the AFL dele- gation made in connection with the demand for McMahon's hire that there were about 100 AFL adherents on the pier was a misrepresentation, and that there were no AFL adherents for whom McMahon could act as steward. He was thereupon advised by his superiors to discharge McMahon at the end of the day. That same morning O'Brien notified McMahon on the pier in the presence of other AFL repre- sentatives, including Pizak, the Teamsters' official, that he was to be dismissed that day. The ILA delegation was also informed of this action. It in turn informed O'Brien that the men upon being apprised thereof would return to work the next day. The following morning the men did return to work. Thereupon, the pier was picketed by McMahon and others. The Teamsters, as forewarned, honored the picket line and the widely publicized 29-day strike of the New York waterfront ensued. Moore-McCormack's justifications for the February 25, 1954, discharge of McMahon are these : (a) The refusal of longshoremen to work on the pier so long as McMahon .was employed there was the compelling factor, and not his AFL activi- ties; (b) McMahon was not a bona fide employee protected by the Act because his hire was procured by duress (the Teamsters' threat of an embargo) and by fraud (the 8 All these employees, excepting possibly one, were ILA members. ° O'Brien was informed that there were men available for work at the Waterfront Com- mission hiring hall but that they refused to,accept employment at pier 32 because of the labor difficulties there. MOORE-McCORMACK LINES, INC. 675 asserted misrepresentation that there were 100 or more AFL adherents employed on pier 32); and (c) the employment of McMahon was secured in contravention of Section 8 (b) (4). (D) of the Act because of the duress and fraud related in (b), above. The ILA and its Local No. 895 defend on the ground that McMahon's dis- charge resulted from the self-inspired refusal of the dockworkers to work with him, for which conduct they are not chargeable. Turning first to the defense by the Respondent labor organizations, I reject their disclaimer of responsibility for the concerted refusal of their members to work to compel McMahon's discharge. I am not convinced that the February 23 walkout was simply an expression by the workers of their personal repugnance to McMahon's hire and recognition by the Company as a steward. The explanation that this con- duct was a spontaneous worker reaction to the violation of their traditional methods of selection of dock stewards impresses me as implausible. True, as the record shows, ILA stewards were traditionally elected by their fellow dockworkers, and on Febru- ary 23, 1954, McMahon was neither constituted a steward by such an election nor, at least technically, was he acquiring his stewardship from employee status. But no ILA tradition was being traduced by this procedure, for McMahon was to be the steward of the rival AFL union whose internal policies were not the concern of ILA members. Inconsistently, there was no objection from the ILA members to the idea of an AFL steward, other than McMahon, on their dock although this in itself was without precedent on pier 32. I am satisfied that the walkout of February 23, 1954, was symptomatic of the resentment shown in October 1953 by the leadership and membership of Local No. 895 to McMahon because of his defection from the ILA and alignment with the AFL. A consideration of the events which occurred immediately after the September 30, 1953, secession meeting convinces me that the opposition at that time to McMahon's presence on pier 32 resulted not from objection to any pretensions by him to ILA stewardship but from hostility by ILA loyalists because he had deserted them to join their rival. I am further persuaded that the hostility on the part of pier 32 ILA members to McMahon was in October 1953 fomented or at least intensified by Cough- lin and Lynch and infer from their official connection with the Local that their con- duct reflected its policy of opposition to McMahon's presence on pier 32 because of his rival unionism. I have found from McMahon's credited testimony that Coughlin and Lynch had bluntly asserted to him in October 1953 that he could not work on pier 32 because of his pro-AFL declaration. I have also found that the dockworkers had declared to McMahon that he could not work on the pier because he was for the AFL and had reinforced their words with a show of physical force. This does not impress me as mere objection to McMahon as ILA steward. Furthermore, I deem un- persuasive Coughlin's explanation that his objection or that of the ILA dockworkers seriously took this form. Coughlin'had taken the position immediately after the September 30 meeting that McMahon could no longer be the ILA steward and had so informed Superintendent Kane who in turn had unequivocally stated that the determination of who was to be the ILA steward was exclusively the concern of the Union and not his affair. It was then clear that even had McMahon incongruously in- sisted upon continuing as the ILA steward, despite his affiliation with the AFL, he could not have done so over the opposition of Local No. 895 and its members. Nor could there have been any doubt by them whether the pier officials would thwart their will by dealing with -McMahon as steward over their opposition. As there was, therefore, no necessity of proclamations including threats of a work stoppage against the contingency that McMahon would remain on the pier as ILA steward, I view such proclamations and threats as mere pretext to obscure the implications of illegality which might have been involved in opposing McMahon's employment on the pier because of his AFL activities.io The transformation of the initially docile attitude of the dockworkers towards association in employment with McMahon to one of belligerent opposition to his presence on the pier is the logical consequence of the hostile example enacted by their leaders Coughlin and Lynch. Thus, the record shows that McMahon worked the first day after the September 30'meeting without protest from his fellow workers and there was no indication of trouble for him until Coughlin told the timekeeper to remove his card from the rack. During the incident of the following day Coughlin was the spokesman who announced that the men would not work with McMahon. Nevertheless, when the hiring boss directed the men to go to work they did so and w It should be clearly understood that these observations do not imply any finding or conclusion herein of unlawful conduct by any party to these proceedings in connection with the termination of McMahon 's employment on pier 32 In October 1953. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worked alongside McMahon without interruption. On another day in October, ac- Lording to Coughlin's own testimony, he discovered the men at work with McMahon and felt compelled to' remind them that they were working with him despite their insistence that they would not do so. Oddly, they continued to work with him that day even after their unimpressive explanation (as related by Coughlin) that they had been erroneously led to believe (evidently by the Company) that McMahon had been hired as an ordinary employee, but that now they saw him standing about as a steward. These circumstances do not denote spontaneous worker opposition to McMahon, but instead imply stimulation by their Local's leadership to the adoption of a hostile attitude. There is ample reason to believe that the hostility to McMahon by the officials and members of Local No. 895 in October 1953 was not abated in February 1954 when it was announced to them that he was returning to pier 32 as an AFL steward. Because of the intensification of the rivalry between the ILA and the AFL in the intervening period, it is reasonable to assume that this hostility had sharpened." The basis for objection formerly existing to McMahon's employment on pier 32 still remained. In these circumstances and in view of the implausibility of the explana- tion advanced by the Respondent labor organizations for, the February 23, 1954, walkout, I am convinced that this action was a continuation of the October 1953 policy aimed by Local No. 895 and its members to keep McMahon off the pier. In arriving at the foregoing conclusion I have carefully weighed Coughlin's testimony to the effect that the workers had walked out against his urging and advice not to do so, but I am nevertheless satisfied that the walkout was the action of the Local in furtherance of its objectives, and that it and the parent ILA are responsi- ble therefor. Any doubts raised by Coughlin's testimony as to the responsibility of Local No. 895 or the ILA for calling the walkout are dispelled by the following attendant circumstances which reveal adoption and direction of the walkout by the Respondent labor, organizations as well as the organizational character of the action by the workers. Thus, when the workers picketed the pier their placards proclaimed discrimination by Moore-McCormack against the ILA. The spokesmen for the strikers in negotiations with Moore-McCormack were officials of the ILA, of Local No. 895, and of ILA Local No. 824. These spokesmen presented the demands of the strikers which when met by Moore-McCormack resulted, as they indicated it would, in termination of the strike. In this connection there should be noted that all the workers honored the strike and all returned immediately upon its termination. This bespeaks organizational discipline. When in the course of their negotiations with Moore-McCormack officials the spokesmen were requested to order their men back to work they did not comply but responded that the men would return if McMahon were not to remain on the premises. Finally, assuming that the walkout by the workers was in opposition to the desire by Local No. 895 or the ILA, there was no disavowal by these labor organizations of the conduct of their members, but instead there was participation by their officials in behalf of the strikers. The Board has several times observed that lack of direct evidence to show that a labor organization issued a strike call is not determinative of the question of its responsibility therefor. Scrupulous avoidance by labor organizations of outward appearance of participation in strikes has not prevented the Board's conclusion that they were nevertheless responsible for such actions where there was cogent circum- stantial evidence which convincingly revealed that the strikes were, actually instigated and continued by them.la , Guided by these principles, I conclude that realistic and fair appraisal of all the circumstances in this case requires that I find, as I hereby do, that the ILA and Local No. 895 are responsible for the worker walkoutland picketing of Moore-McCormack's pier 32 on February 23 to 25, 1954, which had as its purpose to cause or attempt to cause Moore-McCormack to discharge its employee, William McMahon, because of his AFL adherence and activities, and that It Notice is here taken of the Board's December 16, 1953, Decision and Direction of Election in the New York Shipping Association proceeding reported at 107 NLRB 364, in which the Board directed an election for the determination of a bargaining representa- tive by the New York waterfront dockworkers with the ILA, Independent, and the ILA, AFL, on the ballot. The results of the election held pursuant thereto on December 22 and 23, 1953, were subsequently set aside by the Board following an investigation and hearing on the basis of findings that the election was conducted in an atmosphere of "organized fear, violence, and intimidation," and a new election ordered. See the Board's Supplemental Decision and Order reported at 108 NLRB 135. IS The Great Atlantic and Pacific Tea Company ( Amalgamated Meat Cutters, etc.), 81 NLRB 1052; International Union, United Mine Workers of America, 83 NLRB 916; Los Angeles Building and Construbtion Trades Council, 105 NLRB 868. MOORE-McCORMACK LINES, INC. 677 these labor organizations thereby violated Section 8 (b) (2) and (1) (A) of the Act. With reference to Moore-McCormack's defenses, the record shows that it dis- charged McMahon because of the walkout and picketing of its pier, found attributable to the ILA and Local No. 895, and the consequent economic effect upon its opera- tions. This is substantially conceded by Moore-McCormack.13 I have no doubt as to Moore-McCormack's neutrality, as appears from this record, in the maneuvers by the AFL to install McMahon on the pier as its steward or by the ILA to prevent this action. It is abundantly clear that Moore-McCormack was squeezed by the pressures from both sides, and that McMahon's discharge did not result from com- pany animus towards the AFL or McMahon's activities in its behalf, or that it was an act of favoritism intended to advance the cause of the ILA. McMahon's dis- charge was nevertheless unlawful. Moore-McCormack's officials on pier 32, O'Brien and Kane, were cognizant of the events and circumstances on which I have relied in concluding that the real opposition of the ILA officials and members was to Mc- Mahon's return to the pier because of his AFL adherence and not because his desig- nation as an AFL steward on the pier violated their sense of, tradition, and I infer therefrom that they were aware of the real motivation for the walkout and picketing. By yielding to the economic pressure thus imposed upon it to discharge McMahon, Moore-McCormack in effect unlawfully delegated to the Respondent labor organiza= tions, or at least to a faction of pro-ILA employees, its right to discharge an em- ployee. - Moore-McCormack's duty to refrain from such delegation of this right was not suspended because failure to yield to ILA pressure would have disrupted its oper- ations.14 I accord no merit to the defense that McMahon as a matter of law was not an em- ployee entitled to the protection of the Act because his hire was procured by duress and fraud. I assume that McMahon would not have been hired absent the threat of a Teamsters' supported strike which the pier officials reasonably believed would close down pier operations. 15 Were McMahon's hire to be regarded in the sense of a contractual arrangement obtained by threat of irreparable damage to its business, this agreement conceivably could have been unilaterally rescinded by Moore-McCormack on the ground that it had become a party thereto by coercion.is This, however, was not the basis for Moore-McCormack's termination of McMahon's employment. Had not the walkout and picketing occurred, and were it not for the inability of Moore- McCormack to obtain personnel to operate its pier in the face of the walkout and picketing, McMahon would not have been discharged. Thus, viewing Moore-Mc- Cormack's argument in the light most favorable to it, McMahon did acquire status as an employee by the terms of a voidable agreement, subject to unilateral divestment of that,status by rescission.17 Whatever may have been its right to rescind the agree- ment by which he was hired, Moore-McCormack,had not the right thereby to dis- charge McMahon as its employee for a reason proscribed by the Act. This is the vice implicit in its conduct which I have found unlawful. The same reasoning applies to the argument that McMahon's hire was secured by the fraudulent misrepresenta- tion that there were 100 or more AFL adherents employed by Moore-McCormack on pier 32. Here again, I find that his discharge resulted, not from rescission of the agreement to hire him because it was induced by fraud, but that it was caused by the walkout and picketing of the pier. I would not, in any event, find on this record that the representation by the AFL delegation as to the number of AFL adherents on the pier was a willful misrepresentation, or even that it was untrue. In view of the 250 votes cast by the pier employees in favor of affiliation with the AFL at the September 30, 1953, meeting, it would appear that there was reasonable belief for the representation made by the delegation. The fact that no employees could be secured by the AFL or by Moore-McCormack to cross the picket line does not by za The summarization of fa'cts submitted by Moore-McCormack in its brief asserts in' pertinent part that during the 2-day period of the walkout and picketing its pier opera- tions were at a standstill and that "when McMahon and the AFL officials could produce no one willing to work on the pier, and when the Company could itself obtain no one to work for it, it discharged McMahon. There was no other reason behind the discharge." (Emphasis supplied.] is F.ry Products, Inc., 110 NLRB 169; Majestic Metal Specialties, Inc., 92 NLRB 1854. w There appears to be an unprocessed charge on file with the Regional Director assert- ing these threats to be unlawful. ' - 16 See Williston on Contracts, Rev. Ed, vol. V, chapter XLVII. "Counsel for Moore-McCormack has mistakenly asserted in his brief that contracts procured by duress or fraud are necessarily void ab initio. On the contrary, such con- tracts are merely voidable, and unless they are lescmded the-obligations of the parties thereunder continue See Williston on Contracts, Rev. Ed., vol. I, sec. 15 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD itself establish the nonexistence of AFL adherents on pier 32 at the time in question, for there are other possible explanations for the unwillingness of employees to work on the pier which under all the circumstances of this case are as cogent as the in- ference that this denoted their nonadherence to the AFL. As to the contention that the Board's holding in Vaughn Bowen, 93 NLRB 1147, requires a finding that McMahon did not acquire a bona fide employee status within the meaning of the Act, I observe that reliance upon this precedent for such purpose is misplaced. There the facts revealed an agreement between the Teamsters' Union, which was engaged in a jurisdictional dispute with the Retail Clerks' Union, and the employers whereby the latter hired certain members of the Teamsters, although their services were not required, with the understanding that they could be discharged at the insistence of the Retail Clerks' Union. When these employees were accordingly hired and discharged under these conditions charges were filed and complaints issued alleging that these Teamsters' members had been unlawfully discharged by the em- ployers, and that the Retail Clerks' Union had unlawfully caused them to be dis- charged. The Board dismissed the complaints on the ground that only token hirings and discharges had occurred and that there was no intention under the foregoing arrangements to create bona fide employer-employee relationships. The Board would not, therefore, find that the persons "hired" under these arrangements acquired the status of employees under the Act, and concluded that it would constitute an abuse of the Board's processes to hold that they were unlawfully discharged and to order them reinstated. In the instant case none of the elements in Vaughn Bowen are present . The arrangement between the AFL and Moore-McCormack did not con- stitute a token hiring of McMahon to build a case before the Board. There is no question as to the actual desire of McMahon for his hire by Moore-McCormack, and I have no doubt as to the Company's understanding that its hiring of him was real and not token. Finally I reject as without merit the argument in Moore-McCormack's brief that McMahon's hire was void because it was secured by methods contravening Section 8 (b) (4) (D) of the Act. This argument has not been expounded to show the ap- plicability of this statutory provision to the facts of the instant case, and from my consideration of the section referred to I fail to perceive its applicability to the case. I find that by discharging McMahon on February 25, 1954, because of the economic pressure exerted by the ILA and Local No. 895 through the walkout and picketing by their members, Moore-McCormack violated Section 8 (a) (3) and (1) of the Act. The Alleged Unlawful Refusal to Employ McMahon on August 30, 1954 In an apparent effort to settle the waterfront strike the New York State Mediation Board secured an agreement from Moore-McCormack on March 19, 1954, to which at least the AFL appears to have been a party. This agreement provided that until the Board should certify the ILA or the AFL as the exclusive bargaining representative for the waterfront employees, McMahon would be hired by Moore-McCormack and recognized by it as the AFL steward on pier 32. On about April 1, 1954, the portwide strike was terminated. Pursuant to the foregoing agreement, McMahon resumed employment for Moore-McCormack on April 1 or 2, 1954, as a hi-lo driver and was recognized by the Company as the AFL steward on its pier. As a steward he was guaranteed employment on any day in which there was work on the pier under the prevailing waterfront custom that stewards are the first to be hired and the last to be discharged. Except for a brief period when he voluntarily absented himself from work, McMahon was steadily employed as a hi-lo driver by Moore-McCormack until Friday, August 27, 1954. On August 27 the Board issued its certificate to the ILA as the exclusive-represent- ative of the New York waterfront employees including those employed by Moore- McCormack on pier 32. When McMahon reported for work at the pier on Mon- day, August 30, 1954, the first working day following issuance of the certificate, the Company's hiring man called from a list the names of 12 hi-lo drivers who were to work that day. McMahon's name was not called and he failed to receive employ- ment that day. In explanation therefor, O'Brien and Kane testified that Moore-Mc- Cormack, pursuant to the March 19 agreement to hire McMahon reached through the State mediation board, ceased to regard McMahon as a steward upon issuance of the Board's certificate to the ILA. Thenceforth, McMahon was not privileged to exercise the superseniority of a steward and was entitled only to the hiring rights of an ordinary employee. On August 30 there was need for only 12 hi-lo drivers on the pier, and the ones employed that day were those heading the seniority list which governed the order of their employment. McMahon was not included in the seniority list, which contained the names of 35 drivers, because this list was prepared MOORE-McCORMACK LINES, INC. 679 in October 1953 at a time when he was not employed by the Company. This account is corroborated by the statement of Jack Sullivan, received in evidence by stipulation, that on August 30 he was substituting for Slevin, the Company's regular hiring boss, and that he called the first 12 hi-lo drivers heading the list. He did not call Mc- Mahon because it was his understanding that following the ILA certification on August 27 he had lost his superseniority as a steward, and because'his name was not on the seniority list. Having failed to receive work on August 30, McMahon left the pier and picketed and has not since applied for employment with Moore-Mc- Cormack. Coughlin and Kane testified that the seniority list in question came into existence in October 1953 following complaints by the pier 32 hi-lo drivers against the hiring methods of the Moore-McCormack hiring boss. The major objection was directed to the practice requiring all the drivers to report each morning to shape for em- ployment at the pier without knowing in advance how many or which of them would be hired that day. To correct this situation the drivers decided in favor of a seniority list which would automatically determine which drivers, consistent with the Company's need, would be hired each day. Thus, upon determining upon a given day that a certain number of drivers would be employed the next morning, only those drivers whose turn it was to receive employment would report to the pier. When Coughlin learned about the desire of the drivers for a seniority system he called all of them together and suggested that they vote on the question. Twenty-six voted in favor, and six were opposed to it. Coughlin next conferred with each driver con- cerning his period of service as a driver and then brought them together to decide by themselves their order of seniority. Agreement by the drivers resulted in a list containing 35 names in order of seniority. Coughlin next presented the list to Superintendent Kane who indicated that it would receive his consideration. Ac- cording to Kane, when the matter of a seniority system for the drivers was first broached to him, he expressed disfavor, but indicated, without a binding commit- ment , that if the men were to establish a list he would "unofficially" tell his hirinii boss to go along with it to see how it would work out. Coughlin testified that he learned later that Slevin, the hiring boss for the hi-lo_ drivers, was following the list in hiring the men. Kane's testimony is also to the effect that since October 1953 the, hi-lo drivers have been hired from the seniority list except when more than 35 drivers were required on a single day. On those occasions, extra drivers, were hired by an open shape at the New York Waterfront Commission hiring hall. In formulating the seniority system the hi-lo drivers agreed that seniority was to be computed on the basis of continuous service for the Company as a hi-lo driver. Service in some other capacity was not to count toward seniority, and a break in service as a driver would result in loss of seniority which could not be regained by return of the employee to work as a driver. It is clear that Kane was never apprised of the foregoing seniority rules. Nor did he or anyone else pursuant to his instructions ever check the order in which the drivers were listed against company records to determine whether seniority accorded them accurately reflected their length of service with the Company as drivers or in any other capacity. Kane conceded that when McMahon was hired in April 1954 he did not instruct his hiring boss to add his name to the seniority list, and that to his knowledge McMahon's name was never incorporated into the list. According to Kane, McMahon made no request for inclusion of his name on the list. While Kane did not testify that McMahon was expressly informed about the existence of the list or that he knew that hi-lo drivers were hired from it, he did credibly testify concerning an instance from which the inference is reasonable that McMahon knew of the list. Thus Kane testified that when McMahon reported on his first day in April 1954 he inquired about the employment of Eddie Hart, a hi-lo driver who as an AFL adherent had picketed with McMahon in protest of the latter's discharge in February. Kane, in McMahon's presence, thereupon spoke to Slevin, the aforementioned hiring boss, and asked him where Hart stood on the list. He was informed that Hart was 26th on the list in order of seniority. Upon receiving this advice from Slevin, Kane told McMahon that Hart would be called when reached on the list.18 29 In addition to Hart, the list contained the name of one other known AFL adherent. D. Brinkerhoff, who was 21st in order of seniority. There is no contention that Hart or Brinkerhoff were not accorded their rightful positions on the list, or that any other AFL adherent, other than McMahon, was deprived of his proper place on the list. Nor is it contended that Hart or Brinkerhoff were deprived of employment through discrimi- natory operation of the list. The record affirmatively shows that both have received and are receiving employment through the list. _ 879288-56-vol. 113-44 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McMahon testified that on the morning of August 30 he came to the pier at the usual reporting time and was met at the gate by Lynch, the Local No. 895 financial secretary, who notified him that Sullivan was not going to call him for work. This prediction subsequently materialized when Sullivan, calling 12 names from a list he held in hand, failed to call his name. When McMahon inquired about him- self, he was told by Sullivan that he had merely gone by the list. McMahon related that Coughlin made his appearance at this time and that he asked him "how come he [Lynch] can come out 10 minutes before the shape and tell me I am not going to be hired" whereupon Coughlin "flushed." McMahon claimed he had never seen the list before that day and that he had never observed its use before then by the company hiring boss when hi-lo drivers were hired although he was at the pier every day from April through August 27 except for 2 weeks when he was off for personal reasons. McMahon stated that he had heard about the list from Hart about a week before August 30, and that Hart had then told him where he (Hart) stood on the list. According to McMahon, of the 12 men called on August 30, only 3 or 4 had service with Moore-McCormack antedating his. He conceded, however, that all 12 had been working for Moore-McCormack as hi-lo drivers before he returned to the pier in April 1954, and that from time to time during the period between April through August 30, 1954, there were about 35 hi-lo drivers who worked on the pier all of whom had been employed in that capacity by Moore- McCormack before April 1954. In support of his contention that McMahon was unlawfully discharged by Moore- McCormack on August 30, 1954, and that this discharge was unlawfully caused by the Respondent labor organizations, the General Counsel argues that the ILA was determined after it was certified by the Board on August 27 to prevent Mc- Mahon's employment on pier 32 in reprisal for his rival unionism and intended by this action to induce other longshoremen to renounce the AFL and to return to the ILA, and that Moore-McCormack bowed to this desire in order to avoid recurrence of the strike and labor difficulties with which it had been plagued in recent months; that the seniority system relied upon to explain McMahon's failure to receive employment on August 30 was merely a pretext to obscure the real motiva- tion therefor, and that, assuming there was a seniority system in operation at the time, McMahon had sufficient seniority to have placed him high enough on the seniority list to have assured his call for employment on August 30, but that he was discriminatorily excluded from the list for the aforementioned reason . The defense by Moore-McCormack and the Respondent labor organizations is to be found in the explanation for McMahon's failure to receive employment on August 30 con- tained in the testimony by their witnesses as related above, specifically that it was the lawful result of the nondiscriminatory operation of a seniority system which affected his employment for the first time on August 30 following loss of his AFL stewardship upon the Board's certification of the ILA. I do not believe that the record supports the General Counsel's contention. There is no issue which was litigated in this proceeding concerning the validity of the seniority system in question. The sole argument raised by the General Counsel respecting the seniority system is a factual one. My findings are at variance with those proposed by the General Counsel. His argument consequently cannot be sustained. I find from the credited testimony of the several witnesses who testified as to the manner in which the system was devised that it came into existence in October 1953 for reasons unrelated to the rivalry then current between the ILA and the AFL or to any hostility by the ILA or its members toward McMahon. I accept as true the testimony of these witnesses that the seniority system and list sprang from grievances of the hi-lo drivers respecting the method of their employment and was designed simply to remedy complaints concerning their working conditions. I further find that the Company hired its hi-lo drivers according to the seniority system despite McMahon's claim that he did not observe any hiring from the list before August 30, 1954. I find no evidence to warrant any conclusion that it was fashioned in October 1953 to operate as a weapon of discrimination against McMahon. His name was logically not included on the seniority list when it was created because he was not then an employee on the pier. Nor do I ascribe a discriminatory motive to any of the Respondents because his name was not in- cluded on the list or because he may not have been directly told about it when he returned to the pier in April 1954 as an AFL steward and hi-lo driver pursuant to the arrangement worked out by the New York State Mediation Board . Because of the superseniority accorded him as a steward he was hired without regard to the seniority list with preferment over all on it. His hiring during the period in which he was recognized as the AFL steward was thus assured without necessity of including his name on the list and hiring him from it. MOORE-MCCORMACK LINES, INC. 681 The contention that McMahon was discriminatorily deprived of a place on the list with greater seniority than most is insupportable . McMahon concededly had ceased to be a hi-lo driver in either 1946 or ' 1947 when he became the ILA steward, and did not resume these duties until April 1954. He had also ceased to be an employee of Moore-McCormack in October 1953. The rules governing the operation of the seniority system precluded credit for former hi-lo service where it was not continuous or where there was a break in service for Moore-Mc- Cormack. McMahon was therefore entitled to seniority credit beginning only with his employment in April 1954. Thus ,he -had less seniority than anyone on the list , for all 35 persons named therein had had continuous hi-lo service on pier 32 antedating April 1954. I can readily believe that ILA officials and adherents grudgingly accepted Mc- Mahon's presence on pier 32 as an AFL steward and employee, and that news of the Board's certification of the ILA on August 27 conveyed to them the added satis- faction that McMahon would cease to be recognized as the AFL steward. Lynch's advance notice to McMahon on the morning of August 30 that he would not be hired that day undoubtedly was indicative of his personal satisfaction in giving him the bad news. I do not, however, regard this incident as proof of a pre- viously organized plan of discrimination . Nor do I draw such implication from the fact that Coughlin "flushed" when McMahon challengingly asked him how it was that Lynch could have told him he was not to be hired. Such an emotional response under the prevailing circumstances does not,impress me as a betrayal of a guilty conscience. I conclude that McMahon was not discharged on August 30, 1954, in the manner or for the reasons alleged by the General Counsel, but that in fact he was denied employment on that day for lawful reasons. I shall, therefore, recommend dis- missal of those allegations of the complaint charging Moore-McCormack with vio- lating Section 8 (a) (3) and (1) of the Act by unlawfully discharging McMahon on August 30, 1954, and charging the ILA and Local No. 895 with causing or at- tempting to cause Moore-McCormack to discharge McMahon on that date in viola- tion of Section 8 (a) (3) of the Act, thereby infringing Section 8 (b) (2) and 8 (b) (I) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection ,with the operations of Moore-McCormack described in section I, above, have a close , intimate , and substantial relation'to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that Moore-McCormack has engaged in conduct violative of Section 8 (a) (3) and (1) of the Act, and that the ILA and Local No. 895 engaged in con- duct violative of Section'8 (b) (2) and (1) (A) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to ef- fectuate the policies of the Act. It has been found that' Moore-McCormack unlawfully discharged William McMahon on February 25, 1954, and that the ILA and its Local No. 895 unlaw- fully caused or attempted to cause Moore-McCormack to discharge McMahon on that day. It therefore will be recommended that the Respondents herein jointly and severally be required to make McMahon •whole'for any loss of pay suffered by him because of the aforesaid unlawful conduct. No reinstatement order is required as part of the remedy in this case, because McMahon was reemployed by Moore-McCor- mack on or about April 1, 1954, substantially to the same position held by him on February 25, 1954, without prejudice to his former rights and privileges as an em- ployee. " McMahon's loss of pay from February 25, 1954, to the date of his reem- ployment in April 1954 shall be computed on a quarterly basis in the manner estab- lished by the Board in F. W. Woolworth Company, 90 NLRB 289; N. L. R. B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344. Although the violations found herein, are of, a sort usually remedied by a broad cease and desist order on the -ground that it may reasonably be -anticipated from the infringement of fundamental rights guaranteed by the Act that there will be other statutory violations, I do not recommend such broad order here. The peculiar cir- cumstances of this case from which the violations flow convince me that other un- lawful conduct is not reasonably to be anticipated. I shall therefore recommend a narrow cease and desist order limited to curing the effect of the unlawful conduct found herein. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Moore-McCormack Lines, Inc., is an employer within the meaning of Section 2 (2) of the Act, and is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Longshoremen's Association, Independent, its Local No. 895, and International Brotherhood of Longshoremen, AFL, formerly known as International Longshoremen's Association, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 3. By discriminating on February 25, 1954, with respect to the hire and tenure of employment of William McMahon, thereby discouraging the free exercise of rights guaranteed in Section 7 of the Act and discouraging membership and activities in be- half of International Longshoremen's Association, AFL (now International Brother- hood of Longshoremen, AFL), Moore-McCormack has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 4. By causing or attempting to cause Moore-McCormack on February 25, 1954, to discharge William McMahon in violation of Section 8 (a) (3) of the Act, the Inter- national Longshoremen's Association, Independent, and its Local No. 895 engaged in unfair labor practices within the meaning of Section 8 (b) (2) and (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 6. The allegations of the complaint as to other unlawful conduct engaged in by the Respondents herein on or about August 30 , 1954, have not been sustained. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in the International Brotherhood of Longshoremen, AFL, or any other labor organization of our employees, by discriminating in regard to their hire or tenure of employment, or in any like or related manner interfere with, restrain , or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL jointly and severally with International Longshoremen's Association, Independent, and its Local No. 895, make whole William McMahon for any loss of earnings suffered by him as a result of the discrimination against him. All our employees are free to become, remain , or refrain from becoming members of International Brotherhood of Longshoremen, AFL, or any other labor organiza- tion , except to the extent that membership in a labor organization may be required as a condition of employment as authorized in Section 8 (a) (3) of the Act. MOORE-MCCORMACK LINES, INC., Employer. Dated---------------- By---------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced , or covered by any other material. APPENDIX B NOTICE To ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, INDE- PENDENT, AND LOCAL No. 895 AND TO ALL EMPLOYEES OF MOORE-MCCORMACK LINES, INC. Pursuant to the recommendations 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 Moore-McCormack Lines, Inc., to discharge any of its employees because of their activities in behalf of the Inter- McKAY PRESS 683 national Brotherhood of Longshoremen , AFL, to discourage membership in that or any other labor organization of their choosing , or engage in any like or related conduct constituting interference with, restraint , or coercion of em- ployees of Moore-McCormack Lines, Inc., in the exercise of rights guaranteed, by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL jointly and severally with Moore -McCormack Lines, Inc., make whole William McMahon for any loss of earnings suffered by him as a result of the discrimination against him. ; INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION, INDEPENDENT, Labor Organization. Dated---------------- By---------------------------------------------- (Representative ) (Title) LocAL No. 895, ILA INDEPENDENT, Labor Organization. Dated---------------- By---------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced , or covered by any other material. Neil C. McKay and William R. Hopkins, Co-Partners, d/b/a McKay Press and Amalgamated Lithographers of America, CIO, Petitioner . Case No. 7-RC-2714. August 15, 1955 SUPPLEMENTAL DECISION AND SECOND DIRECTION ' OF ELECTION By our Decision 1 of May 12, 1955, in this matter, we found that the appropriate unit consisted of the following classifications of em- ployees : All lithographic production employees, including letterpress- men, artists , strippers, platemakers, and cameramen. On May 31, 1955, the Petitioner filed a motion for reconsideration of the Board's Decision insofar as it included letterpressmen in a litho- graphic unit. It also filed a supporting brief and a request for oral argument.' We are persuaded by the Petitioner's motion for recon- sideration and brief that there is merit to its position, and we hereby grant Petitioner's motion for reconsideration relative to the unit found appropriate in our Decision and Direction of Election dated May 12, 1955 8 Upon reconsideration, we have concluded that the letterpressmen should be excluded from the lithographic unit found to be appropriate. Unlike the situation obtaining in the Pacific Press case,' in which the Board found a combined unit of pressmen appropriate, there is lacking Case No. 7-RC-2714 (not reported in printed volumes of Board Decisions and Orders). ' In view of our decision herein, the Petitioner's request for oral argument is hereby denied. 3 The Employer contends that the Board should not consider Petitioner's motion for reconsideration because ". . . such motion is not proper under Board Rules and Regu- lations. ' As there is no warrant in the Board' s rules for rejecting this motion, we find no merit in this contention A Pacific Press , Inc., 66 NLRB 458. 113 NLRB No. 74.