National Maritime Union of America

National Labor Relations Board - Board Decisions

Aug 17, 1948

78 N.L.R.B. 971 (N.L.R.B. 1948)

In the Matter Of NATIONAL MARITIME UNION OF AMERICA, AFFILIATED
WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS, AND JOSEPH
CURRAN, ITS AGENT and THE TEXAS COMPANY
In the Matter of NATIONAL MARITIME UNION OF AMERICA, AFFILIATED
WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS, AND JOSEPH
CURRAN, JACK LAWRENSON, JOSH LAWRENCE, CHESTER YOUNG,
HAROLD MCCORMICK, MICHAEL MCBRIDE, AND CHARLES MONROE, ITS
AGENTS and CLEVELAND TANKERS, INC.
In the Matter of NATIONAL MARITIME UNION OF AMERICA, AFFILIATED
WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS, AND JOSEPH
CiURRAN, - JACK LAWRENSON, JOSH LAWRENCE, CHESTER YOUNG,
HAROLD"M --CCORMICK, MICHAEL MCBRIDE, AND CHARLES MONROE, ITS
AGENTS and LAKFi TANKERS CORPORATION
In the Matter of NATIONAL MARITIME UNION OF AMERICA, AFFILIATED
WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS, AND JOSEPH
CURRAN, JACK LAWRENSON, JOSH LAWRENCE, CHESTER YOUNG,
HAROLD MCCORMICK, MICHAEL MCBRIDE, AND CHARLES MONROE, ITS
AGENTS and GREAT LAKES TRANSPORT CORPORATION
Cases Nos. 13-CB-19, 13-CB-2O, 13-CB-21 and 13-CB-2.2, respee-
tively.-Decided August 17, 1948
Messrs. Reeves R. Hilton and Herman DeKoven, for the General
Counsel.
Pope and Ballard, by Mr. William F. Price, of Chicago, Ill., for
Cle,eland Tankers, Inc., Lake Tankers Corporation, and Great Lakes
Transport Corporation.
Mr. Hugh McCloskey, of New York City, for The Texas Company.
Mr. William L. Standard, by Air. Herman Rosenfeld, of New York
City, for the Respondents.
DECISION
AND
ORDER
On June 21, 1948, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had-engaged in and were engaging in certain unfair labor
practices in violation of Section 8 (b) (2), 8 (b) (3), and 8 (b) (1)
78 N. L. R. B., No. 137.
971
972 DECISIONS OF NATIONAL= LABOR RELATIONS BOARD
(A) of the National Labor Relations Act, as amended by the Labor
Management Relations Act, 1947, and recommending that they cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter
the General Counsel, the Respondents, and all the complainantg-except
The Texas Company filed exceptions to the Intermediate Report, and
the complainants and the Respondents filed supporting briefs.
On July 20, 1948, the Board 1 heard oral argument at Washington,
D. C., in which the General Counsel, the Respondents, and all the com-
plainants except The Texas Company participated.
At the opening of the hearing in this case on June 14, the Respond-
ents moved for a continuance of the hearing, on the ground that in the
10 days since the issuance of the complaint they had had no oppor-
tunity to prepare their defense because of other litigation in which
NMU was involved. The Trial Examiner denied the motion, where-
upon the Respondents walked out of the hearing. On July 2, subse-
quent to the issuance of the Intermediate Report, the Respondents filed
a motion before the Board requesting that. the hearing be reopened to
give them an opportunity to present their case, or, in the alternative,
that the Board incorporate as part of the record in this case the evi-
dence to be introduced by the Respondents in another proceeding, then
scheduled to be heard at New York before a Trial Examiner of the
Board on July 12, which, the Respondents stated, involved issues iden-
tical to those in the instant proceeding. In an order issued on July 12,
the Board denied both motions. The basis for this denial was, in
essence : (1) that the motions, filed 17 days after the close of the hear-
ing and 11 days after the issuance of the Intermediate Report, were
untimely; (2) that in the light of all the considerations, the Respond-
ents had been given a reasonable opportunity to present their case, and
voluntarily chose not to avail themselves of it ; and (3) that the situa-
tion in the maritime industry resulting from failure of the parties to
this proceeding to conclude a collective bargainipg agreement required
the Board to avoid any•delay in the issuance of its decision on the sub-
stantive issues in the absence of a clear showing that the Respondents
had been denied a reasonable opportunity to present their case.
During the course of the oral argument on July 20, the Respondents
again requested the Board to withhold its decision until it could incor-
porate and consider as part of the record in this case the Respondents'
evidence in the New York proceeding, hearing in which was scheduled
to begin, following a continuance, on July 21. On July 30, the Board
received a stipulation, entered into by all the parties to the instant
1 Member Gray was not present at the oral argument. He has, however, read the tran-
script of that proceeding.
NATIONAL MARITIME UNION OF AMERICA 973
proceeding on July 26 and 27, 1948, that the evidence offered by NMU
and received in evidence in the New York proceeding be incorporated
as part of the record in this case, insofar as such evidence relates to
the issue of the hiring-hall provision, and waiving the issuance of any
further Intermediate Report in connection therewith. Inasmuch as
the New York proceeding is now completed, and the record has been
made available before issuance of a decision in the instant case, and in
view of the fact that all of the complainants and the General Counsel
have now agreed to the incorporation of the said evidence in the New
York proceeding, we shall grant the Respondents' request made at the
oral argument. Therefore, the said evidence in Case No. 2-CB-87
is hereby incorporated as part of the record in this case, pursuant to
the terms of the afore-mentioned stipulation of the parties. The
aforesaid stipulation is likewise made a part of the record in this
case.
The Board has reviewed the other rulings of the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, the contentions advanced at
the oral argument, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
insofar as they are consistent with this Decision and Order.
1. The 8 (b) (2)
The Trial Examiner found, and we agree, that NMU and the indi-
vidual Respondents2 violated Section 8 (b) (2) of the Act by insisting,
during negotiations with the companies for a collective bargaining
agreement covering the year 1948, that the hiring-hall provision of the
1947 agreement 3 be continued in the new agreement, and by authoriz-
2 We adopt the Trial Examiner's finding that the individual Respondents named in the
complaint were duly designated agents of N,IIU, instigating and participating in the
unfair labor practices herein found to have been committed.
3 This provision stated:
The Union agrees to furnish satisfactory men and the Company agrees that during
the period that this agreement is in effect all replacements shall be hired through
the offices of the Union , as vacancies occur. The Company may reject such replace-
ments, provided
(a) The rejections are for valid reasons, and
(b) The Company states in writing to the officers of the Union the reasons for
such rejections , and that the Union shall have the right to take up such rejections
under the grievance machinery outlined in subsections 3 and 4 of Section 7 and in
Section 8 of Article I of this agreement.
When a rejection is made, the Union shall immediately supply a replacement.
If the Union cannot furnish replacements by one ( 1) hour betore sailing time, the
Company shall have the right to obtain replacements wherever possible.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing a strike which had as its objective obtaining the hiring-hall pro-.
vision in question 4
Section 8 (b) (2) of the Act makes it an unfair labor practice for a
labor organization or its agents :
to cause or attempt to cause an employer to discriminate against
an employee in violation of subsection (a) (3) or to discrimi-
nate against an employee with respect to whom membership in
such organization has been denied or terminated on some ground
other than his failure to tender the periodic dues and the initia-
tion fees uniformly required as a condition of acquiring or retain-
ing membership.
Section 8 (a) (3), referred to in this provision, makes it an unfair
labor practice for an employer :
by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization. .. .
A proviso to Section 8 (a) (3) permits the execution and enforce-
ment of a so-called "union-shop" agreement under certain specified
conditions.
The language of Section 8 (b) (2) is unambiguous and susceptible
of reasonable interpretation, rendering unnecessary an extensive
examination of legislative history in an effort to determine legislative
intent.' In this case, however, the legislative history 8 serves to empha-
In his Conclusions of Law , the Trial Examiner refers to the Respondents ' "attempting
to impose and imposing upon the Companies collective bargaining contracts containing a
hiring -hall clause" as the basis for his finding that the Respondents violated Section 8 (b)
(2). The General Counsel excepts to the omission of specific reference to the stiike
We are persuaded , from the Trial Examiner's earlier discussion of this phase of the case,
that he considered the strike as part of the means by which the Respondents violated
Section 8 ( b) (2) As is hereinafter indicated , we concur in this conclusion.
6 See Matter of National Tube Company, 76 N L R B 1199 . aemesco Inc. v Walling,
324 U S 244
6 Section 8 (b) (2) as enacted represents an expansion of the provision in Section
8 (b) (2) of the Senate bill The Senate provisiotf ` was primarily direcied against efforts
by unions that had union -shop agreements to cause employers to discriminate against
persons whose union membership was denied or terminated for reasons other than those
permitted under the bill Noting the broader effect of Section 8 (b) (2) in the bill as
passed , the Conference Report states:
Section 8 ( b) (2) is expanded so as to prohibit all attempts by a labor organization
or its agents to cause an employer to discriminate against an employee in violation
of Section 8 (a) (3) [Emphasis supplied ] ( House Conference Report No. 510,
P. 41)
In presenting the conference bill to the Senate, Senator Taft explained the differences
from the Senate provision, and the reasons for their adoption , in these terms
Paragraph ( 2), which makes it an unfair labor practice for it labor organization
to cause or attempt to cause an employer to discriminate against employees , departs
from the text of the corresponding paragraph in the Senate amendment in two respects.
The original Senate language used the words "to persuade or attempt to persuade."
The House conferees objected on the ground that it seemed inconsistent with the
provisions guaranteeing all parties freedom of expression . The conferees clarified
this language so that it reads "to cause or attempt to cause " The House managers
NATIONAL MARITIME UNION OF AMERICA 975
size the plain meaning of the statutory language, which indicates that
Congress intended to prohibit all attempts by unions or their repre-
sentatives to cause employers to violate Section 8 (a) (3).
The record establishes that throughout the negotiations, the Re-
spondents sought to persuade the Companies to conclude agreements
which would contain the same hiring-hall provision that was part of
the 1947 agreements. Failing this, the Respondents authorized and
directed a strike against the Companies which had as its clear objective
requiring the Companies to grant the hiring-hall provision. On May
13, 1948, Respondent Lawrence, NMU national director, sent the fol-
lowing wire to the NMU ships' delegates of the various vessels on the
Great Lakes :
In view of Tanker Companies position that there is no con-
tract in effect there is grave danger that any moment companies
may institute hiring off the dock and violations of working con-
ditions. Crews are therefore requested by National Negotiating
Committee to job action their vessels at first port until such time as
companies agree in writing to extend contract including hiring-
hall until completion of negotiations. No contract, no work.
[Emphasis supplied.] 7
The object of the strike is further revealed by the placards carried
by NMU pickets or posted near the struck vessels, which read: "We
demand the hiring hall, NMU."
Thus the question squarely before us is whether, if they had
adopted and executed the hiring-hall provision involved in this case,
the Companies would have discriminated against employees "in regard
to hire or tenure of employment or any term or condition of employ-
ment to encourage or discourage membership in any labor organiza-
tion," and thus whether, by bringing pressure upon the Companies to
adopt and execute the hiring-hall provision, the Respondents were
"causing or attempting to cause" the Companies to violate Section 8
(a) (3).
The hiring-hall provision in question does not on its face require that
the Companies discriminate in favor of NMU members. Unlike the
also directed the attention of the Senate conferees to the fact that while the Senate
bill forbade unions to discriminate against employees with respect to whom member-
ship in a labor organization had been denied on some ground other than failure to
pay dues and initiation fees, it did not expressly forbid a union to attempt to bring
about the discharge of an employee who is not covered by a valid compulsory member
ship agreement. Of course a discharge under such circumstances has been repeatedly
held to be a violation of subsection 8 (3) of the present act by the Board, and since
it was not the intent of the Senate to make unlawful coercion by a labor organization
against employees covered by compulsory membership agreements and yet to tolerate
attempts at discrimination against employees not so covered , the conferees agreed to
the adoption of the phrase "in violation of subsection 8 (3)." (Gong . Rec., June 5,
1947, p. 6600.)
z The record indicates that the phrase "job action" means "strike."
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so-called "closed-shop" contract, by virtue of which employers are
required to hire only such persons as are members of the contracting
union, this provision requires only that the employer hire such persons
as are supplied by the Union unless the Union is unable to provide the
needed replacements. It is thus contended by the Respondents that
there is nothing on the face of the agreement which contemplates a
discrimination in violation of Section 8 (a) (3). We do not pass upon
whether the hiring-hall provision would be unlawful absent evidence
that in supplying the Companies with personnel, NMU discriminated
against non-members. The record establishes, and we find, that in the
operation of the hiring-halls in question, such discrimination against
non-members did exist, and that the Respondents and the Companies
contemplated'that such discrimination would continue if the hiring-
hall provision was included in the 1948 agreement.
At NMU hiring-halls, jobs were assigned in rotation to applicants
who had registered as available for each of the jobs over which NMU
had jurisdiction. It is clear, however, that in order to register for a
job, the applicant had to be a member of NMU in good standing.8 Non-
members could, it is true, be admitted to the hiring-hall, and could be
assigned to job vacancies that arose; but this was done only if there was
no NMU member available and willing to take the job. Any NMU
member who was available was entitled to the job even though he might
have registered later than a non-member. If a non-member was sent
by the hiring-hall, he was given a "trip card" which entitled him to
keep his job for one round trip of the vessel or for 30 days, whichever
was sooner. On returning to the port from which he started, he could
be "bumped" b,; any NMU member who was available and desired the
job, unless, during the course of the voyage, the trip card holder had
joined NMU.9 When a replacement supplied by the hiring-hall re-
8 The National Shipping Rules of NMU, which are in exhibit as part of the record in this
case , state, " Only members in good standing as defined in the Constitution may register to
compete for a job ." NMU President Curran testified in Case No . 2-CB-87 that these
shipping rules are the ones presently in force.
In Case No 2-CB-77, NMU President Curran testified as follows :
Q. Does the union ship only union members out of the hall?
A. No
Q. Under what circumstances will it ship a man who is not a member of the union?
A. It ships men who are not members of the union when it does not have the men
available who are members of the union, for one thing . .. We give him [the non-
member] what is known as a trip card . That enables him to stay around there for jobs
which are not taken by union men and pierhead jumps and other things of that type.
He gets a job . When he is given a trip card the trip card states clearly on it that he
is being given a job because a union member is not available and that he agrees volun-
tarily in taking this trip card that at the end of the voyage, or thirty days, whichever
is sooner , but it is a round tup back to the port where he got on, he comes of if a union
man is available . .
Q. What is the purpose of having him [ a trip card holder] report back to the hiring
hall?
NATIONAL MARITIME UNION OF -AMERICA 977
ported for duty, he carried a "Job Assignment Card" which indicated
whether he was a member of NMU or a holder of a trip card. A copy
of the Job Assignment Card was given to the master of the ship or
the chief engineer and to the NMU ships' delegate assigned to the
vessel. The employer, accepting for employment a man whose Job
Assignment Card indicated he was a trip-card holder, was thereby
advised that the man was not a member of NMU, that he had been sent
only because no NMU member was available, and that he would be
replaced at the end of the voyage if an NMU member became available.
This is the manner in which the NMU hiring halls involved in this
case operated in the past. Beyond the peradventure of doubt, the
hiring-hall in practice has involved discrimination in the hire and
tenure of employment of unlicensed seamen to encourage membership
in NMU. It is a discrimination which has been initiated by NMU,
and acquiesced in by the Companies. Moreover, it is clear from the
record in this case that what NMU was demanding in its negotiations,
and in its strike, was not merely a continuation of the form of the hir-
ing-hall clause in its agreements with the Companies, but a continua-
tion of the practice outlined above, by which preference in job assign-
ment and job retention was given to NMU members.10 But the Act
as now amended no longer permits employers to discriminate against
employees who are not members of labor organizations, except pur-
suant to a "union-shop" agreement under certain specified conditions
which have not here been met. The Respondents in their negotiations
and in their strike were engaged in an "attempt to cause" the Com-
panies to discriminate against employees in a manner which is pro-
hibited by Section 8 (a) (3) of the Act. By so^doing the Respondents
have violated Section 2 (b) (2) of the Act.
The Respondents contend, however, that Section 8 (b) (2) and
8 (a) (3) should not be brought into operation until an employee is
actually caused to lose his employment because of non-membership in
NMU. We do not agree. It is well settled that the prohibition
against discrimination because of membership or non-membership in
a labor organization, which was contained in Section 8 (3) of the Wag-
A To see if there are union men available If there are no union men available,
he goes back to the ship
Q If there are union men available , he does not go back to the ship?
A. He comes off
10 That the Respondents contemplated that if the hiring -hall clause were granted it
would operate as it had in the past is most clearly indicated by their consistent rejection
of proposals made by the Companies which would have permitted NMU to supply leplace•
ments but without discrimination against non -members. In addition , the record contains
credible testimony of several witnesses who were present at bargaining sessions at which
NMU delegates described the operation of the hiring hall At no time, according to these
witnesses , was there any indication that NMU intended to discontinue the discrimination
against non -members if the hiring -hall clause was granted in the 1948 contracts
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ner Act, and continued in Section 8 (a) (3) of the amended Act,
applies to applicants for employment as well as to persons who are
already employed." Although conceding this, the Respondents argue,
however, that in any event it is necessary to establish that a specific
individual was denied, or deprived of, employment; and that in this
case there is no evidence of any effort by the Respondents to cause a
specific act of discrimination, their efforts being confined to obtaining
a contract containing the hiring-hall clause. In disposing of this con-
tention, it is not necessary for us to determine whether an employer
would violate Section 8 (a) (3) by the mere act of executing a con-
tract containing the hiring-hall clause, the performance of which
we have found would, under the conditions here present, violate
this provision of the Act. As noted above, the Respondent's bargain-
ing demands and strike were calculated to cause the Companies not
merely to agree to continuation of the hiring-hall clause as such, but
also to continue to cooperate in the practices flowing from execution of
this clause, as a result of which NMU members were given preference
in employment over non-members. Moreover, Section 8 (b) (2) pro-
scribes not only those acts by which a labor organization or its agents
actually cause an employer to discriminate unlawfully against em-
ployees, but also those acts by which it attempts to cause such discrimi-
nation. In our view, the prohibition is not confined to those instances
in which specific non-union employees are unlawfully discriminated
against. It extends as well to instances in which the union, or its
agents, seeks to cause the employer to accept conditions under which
any non-union employee or job applicant will be unlawfully discrimi-
nated against. The acts of the Respondents in the instant case fall
squarely within this prohibition.
We are asked by the Respondents to consider the economic facts
which gave rise to the hiring hall in the maritime industry and which,
in the view of the Respondents, require its continuance in the future.
It is said that the peculiar characteristics of maritime employment
require that a union control and regulate the supply of labor in order
to avoid the graft, favoritism, and indignities which in past years have
attended job-seeking in this industry. It is also said that the Respond-
ents' hiring halls have made possible a fair rotation of jobs, and an
even supply of labor, in the best interests of seamen and shipowners
alike .12
11 Phelps Dodge Corporation v. N L R B , 313 U S 177; Matter of Waumbec Mills Inc.,
15 N L. R B 37 See also Matter of Briggs Manufacturing Company, 75 N L R B 569.
12 The history and economic basis for maritime hiring halls were outlined by counsel for
the Respondents at the oral argument, and appear in several of the documents which are
iii exhibit as part of the record in this case , as, for example , Report of The Maritime Labor
Board To The President and To The Congress , March 1, 1940 In addition , each of the
NMU witnesses in Case No. 2-CB-87 outlined the history and development of maiitime
hiring lialll
NATIONAL MARITIME UNION OF AMERICA- 979
Insofar as such factors touch upon the wisdom of legislation which
renders the NMU hiring halls unlawful, they, of course, raise consid-
eration§ which can have no bearing on our determination of the issue
before this Board. , The full facts concerning the reasons for and
operation of maritime hiring halls were brought to the attention of
the Congress prior to the enactment of the amended Act.13 The Con-
gress determined that the public interest required that hiring halls
involving discrimination against employees who are not union mem-
bers be outlawed.14 This determination is binding upon us. It is our
duty to administer the law as written, not to pass upon the wisdom
of its provisions.
Respondents' reference to the economic basis for the hiring hall is
directed at the question of whether, in enacting Section 8 (a) (3) and
8 (b) (2), Congress exceeded its constitutional authority or deprived
the Respondents of rights protected by the constitution. We have
previously held,15 and we again affirm, that as an administrative
agency we will not pass upon the constitutionality of the legislation
which this Board was appointed to administer. We will assume that
it is constitutional unless and until we are advised to the contrary by
the courts.
In our determination that the Respondents have violated Section
S (b) (2) of the Act, we have thus far relied upon the acts by which
they sought to cause the Companies to accede to the hiring-hall pro-
vision and,to the practices which flowed from it. The record, how-
ever, reveals a further basis for finding a violation of Section 8 (b) (2)
by the Respondents,. The 1947 collective bargaining agreement with
each of the complainant Companies, other than The Texas Company,
contained the following clause :
11 See , for example , Senate Hearings on S. 55 and S J Res 22, 80th Cong , 1st Sess , p
1396 if
11 In the coutse of the Senate debates on the provision which ultimately was incorporated
as Section 8 (a) (3) of the amended Act, there are a number of specific references to the
hiring hall in the maritime industry as a classic example of the "closed shop " which the
provision was primarily designed to eliminate The Senate Report on S 1126 stated
In the maritime industry .in(] to it large extent in the construction industry union
hiring halls now provide the only method of securing employment This not only per-
mits unions holding such monopolies over jobs to exact excessive fees but it deprives
management of any real choice of the men it hires. ( Senate Report No . 105, 80th
Cong , 1st Sess , p 6 )
Piesenting the Senate Bill, Senator Taft, one of its sponsors , stated
In the first place, Mr President, the bill does abolish the closed shop Perhaps this
is best exemplified by the so-called hiring halls on the west coast where shipowners
cannot employ anyone unless the Union sends him to him. ( Cong . Rec., Apr. 23, 1947,
p. 3952 )
15 Matter of Rite Ferns Corset Company, 75 N L R B 174
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the fitting out and laying up 16 of vessels, when replace-
ments are necessary, the Company will employ members of the
Union.
The record establishes that in their negotiations with these three
Companies, the Respondents demanded that this provision be re-
tained. This was done in the form of a specific demand that the pro-
vision be included in the 1948 agreements. It also followed from
the Respondents' demand that the Companies extend the 1947 agree-
ment without change pending negotiations on the new contracts. The
provision is one which on its face contemplates a discrimination by
the employer in violation of Section 8 (a) (3). Following the reason-
ing set forth above with respect to the hiring-hall clause, we find that
the Respondents, by insisting on the "laying up and fitting out" pro-
vision, also violated Section 8 (b) (2) of the Act.
2. The 8 (b) (3)
The Trial Examiner found that the Respondents refused to bargain
collectively with the Companies in violation of Section 8 (b) (3) of
the Act, as amended. While we adopt the Trial Examiner's conclu-
sion in this regard, we do not adopt all of his reasoning.
Section 8 (b) (3) of the Act makes it an unfair labor practice for
a labor organization or its agents :
to refuse to bargain collectively with an employer, provided it is
the representative of his employees subject to the provisions of
Section 9 (a).
Section 8 (d) provides that:
for the purposes of this section, to bargain collectively is the per-
formance of the mutual obligation of the employer and the repre-
sentative of the employees to meet at reasonable times and confer
in good faith with respect to wages, hours, and other terms and
conditions of employment, or the negotiation of an agreement, or
any question arising thereunder, and the execution of a written
contract incorporating any agreement reached if requested by
either party, but such obligation does not compel either party to
agree to a pyoposal or require the making of a concession. . .
The legislative history of these provisions clearly indicates that it
was the purpose of Congress to impose upon labor organizations the
same duty to bargain in good faith which had been imposed upon em-
is This refers to operations necessary to protect the vessel at the end of the shipping
season ( e g., dismantling and storing the machinery ), and preparation of the vessel for
sailing at the beginning of the season
NATIONAL MARITIME UNION OF AMERICA 981
ployers in Section '8 (5) of the Wagner Act, and continued in Section
8 (a) (5) of the amended Act 17 Moreover, the standards and tests
set forth in Section 8 (d), applicable to both employers and unions,
closely paraphrase those established in decisions of the Board and the
courts in recent years. Such decisions, although they dealt primarily
with employers' responsibility to bargain collectively under the Wag-
ner Act, are nevertheless significant guideposts in determining the
collective bargaining obligations of unions under Section 8 (b) (3).
As part of the basis upon which the Trial Examiner concluded that
the Respondents violated Section 8 (b) (3), he finds that the Respond-
ents' adamant position with respect to the hiring hall evinced a mind
closed to persuasion and without sincere purpose to find a basis for
agreement, an attitude which the Board and the courts have found
to be incompatible with good-faith bargaining.18 We do not believe
that the record supports this finding. The Trial Examiner attributes
to the Respondents a disinclination to bargain in good faith, which
the preponderance of the evidence does not support. An employer's
intransigence on a particular issue has been found to evidence bad
faith in bargaining where the record as a whole has indicated that such
intransigence reflected an intention to avoid coming to any agreement.
Such was hardly the objective of the adamant position taken by the
Respondents with respect to the hiring hall. It cannot be said, on the
basis of the facts before us, that by demanding that the contract con-
tain a provision to" which the Companies would not agree, the Respond-
ents hoped to avoid concluding any collective bargaining agreement.
Nor does it appear that the Respondents' position as regards the hiring
hall was any more adamant than that adopted by the Companies.
Each side insisted that its position, was right, and an impasse was
reached. The Board has frequently recognized that, as the Act does
not require final agreement or the granting of concessions, the parties
may reach an impasse which does not reflect on the good faith of the
bargaining.,,,
But what the Act does not permit is the insistence, as a condition
precedent to entering into a collective bargaining agreement, that the
other party to the negotiations agree to a provision or take some action
"The conference report, for example , referring to the identical provision in the Senate
Bill, states
This provision of the Senate amendment imposed upon labor organizations the same
duty to bargain which under Section 8 ( a) (5) of the Senate amendment was imposed
upon employers ( House Conference Report No . 205, 80th Cong , 1st Sess, p 43 )
78 See , for example , Globe Cotton Mills, v . N L. R B, 103 F . ( 2d) 91 (C C A 5) ; N L
R. B. v. Whittier Mills Co , 111 F (2d) 474 (C C A 5) , N L R B v. Reed and Prince
Manufacturing Co, 118 F (2d) 874 (C C A 1)
ii Matter of Cullom & Ghei tner Coetpany , 14 N. L R B 270 ; Matter of Purity Biscuit
Company, 13 N L R B 17 ; Matter of Kentucky Tennessee Clay Company , 49 N L R. B
252 ; Matter of Draper Corporation , 52 N L. R B 1477.
798767-49'-vol 78-63
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which is unlawful or inconsistent with the basic policy of the Act.-
Compliance with the Act's requirement of collective bargaining can-
not be made dependent upon the acceptance of provisions in the agree-
inent which, by their terms or in their effectuation,are repugnant to the
Act's specific language or basic policy.
-Insofar as the Trial Examiner relied upon this well-established
principle in concluding that the Respondents refused to bargain, we
adopt his finding. The record establishes that after considering and
rejecting proposals by the Companies to substitute other arrangements
for the hiring hall, a point was reached in the negotiations when the
Respondents made it clear that no agreement would be concluded that
did not contain a hiring-hall provision comparable to that in the 1947
agreement, not only as to language but also as to the method of execu-
tion. We find that the Respondents took this position on June 4, 1948,
in their negotiations with The Texas Company, and on April 2, 1948,
in their negotiations with the other Companies" By their insistence
upon the continuation of a practice which the Act now forbids, as a
condition precedent to entering into any agreement, the Respondents,
on and after these dates, refused to bargain in violation of Section 8
(b) (3) of the Act.
3. The 8 (b) (1) (A)
The complaint alleged, and the Trial Examiner found, that the acts
of the Respondents in violation of Section 8 (b) (2) and 8 (b) (3) of
the Act also constitute a violation of Section 8 (b) (1) (A). We do
not agree.22
Section 8 (b) (1) (A) of the Act makes it an unfair labor practice
for a labor organization or its agents :
to restrain or coerce employees in the exercise of rights guaranteed
in Section 7.
The terms of this provision are broad, but viewed in the light of
legislative history, they do not encompass the situation before us in
this case.
'ON. L R . B. v. Winona Textile Mills , 160 F. ( 2d) 201 (C. C. A. 8) , Hartsell Mills Co V.
N. L. R. B, 111 F . ( 2d) 291 (C C A 4) ; N. L. R B v . Reed & Prince Manufacturing Co,
118 F. (2d) 874 (C. C. A. 1) ; Matter of Kellogg Switchboard & Supply Co., 28 N. L. R B.
847; Matter of Reliance Manufacturing Company , 28 N. L . R. B. 1051 ; Matter of Golden
Turkey Mining Co., 34 N. L. R. B. 760.
21According to the credited testimony of witnesses for the General Counsel , on June 4
the NMU representative stated that all proposals which The Texas Company had submitted
as substitutes for the hiring hall were rejected , and NMU would settle for nothing less than
the hiring -hall provision in the 1947 agreement . Credible testimony in the record also
reveals that on April 2, in negotiations with the other Companies , NMU representative
Young stated that even if the Companies were to accede in part to NMU's wage demands,
NMU would not make a contract which did not contain the standard hiring-hall clause.
22 Member Gray dissents from this one finding , as is indicated in his separate opinion
attached hereto. a
NATIONAL MARITIME UNION OF AMERICA 983
• Section 8 (b) (1) (A) of the Act originated in the Senate. The
bill (S. 1126), as originally reported to that body by the Senate Com-
mittee on Labor and Public Welfare, did not contain any provision
making it an unfair labor practice for a labor organization to restrain
or coerce employees. Senators Ball, Taft, Donnell, Jenner, and
Smith, in a supplemental statement to the Senate Committee's report
on the bill, declared that they would introduce an amendment to this
effect on the floor of the Senate. Explaining why they would do so,
they said :
Since this bill establishes the principle of unfair labor prac-
tices on the part of unions, we can see no reason whatever why
they should not be subject to the same rules as the employers.
The committee heard many instances of union coercion of em-
ployees such as that brought about by threats of reprisal against
employees and their families in the course of organizing cam-
paigns; also direct interference by mass picketing and other
violence. Some of these acts are illegal under State law, but we
see no reason why they should not also constitute unfair labor
practices to be investigated by the National Labor Relations
Board, and at least deprive the violators of any protection fur-
nished by the Wagner Act. We believe that the freedom of the
individual workman should be protected from duress by the union
as well as from duress by the employer. [Emphasis supplied.]
(Sen. Rep. No. 105, 80th Cong., 1st Sess., p. 50.)
On the floor of the Senate, Senator Ball proposed an amendment to
the Senate bill, making it an unfair labor practice for a labor organiza-
tion or its agents "to interfere with, restrain or coerce" employees in
the exercise of the rights guaranteed in Section 7. In an accompany-
ing explanation, he said:
The purpose of the amendment is simply to provide that where
unions, in their organizational campdigns, indulge in practices
which, if an employer indulged in them, would be unfair labor
practices, such as making threats or false promises or false
statements, the union also shall be guilty of unfair labor practices.
[Emphasis supplied.] (Cong. Rec., April 25, 1947, p. 4136.)
The words "to interfere with" were deleted from the amendment
with the consent of Senators Ball and Taft, after Senator Ives had
expressed the fear that these words "could easily be construed to mean
that any conversation, any persuasion, any urging on the part of any
person, in an effort to persuade another to join a labor organization,
would constitute an unfair labor practice." (Cong. Rec., April 25,.
1947, p. 4136.)
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Act contains no definition of what constitutes "restraint" or
"coercion," but during the course of the debate the principal sponsors
of the amendment gave examples of the types of conduct that the
amendment was intended to reach. The following colloquy between
Senators Saltonstall and Taft is particularly illuminating:
Mr. SALTONSTALL. . . . I would appreciate very much, in order
to make the matter clear in my own mind, if the Senator from
Ohio [Taft] would give an example of a restraint he would con-
sider an unfair labor practice, an action which would- not be a
restraint, an action which would be coercion, and an action which
would not be coercion, within the meaning of the words of the
bill and the amendment.
Mr. TAFT. Answering the Senator from Massachusetts, I would
say, in the first place, that I understand the present section against
employers has been used by the Board to prevent employers from
making threats to employees to prevent them or dissuade them
from joining a labor union. They may be threats to fire the man,
of course in the extreme case. They may be threats to reduce his
wages, they may be threats to visit some kind of punishment on
him within the plant if he undertakes to join a union. Those are
the usual types of coercion which have been held to be a violation
of the section on the part of the employers. In the case of
employers, there have also been some cases of threats of
violence, .. .
In the case of unions, in the first place, there might be a threat
that if a man did not join, the union would raise the initiation fee-
to $300, and he would have to pay $300 to get in; or there might be
a threat that if he did not join, the union would get a closed-shop
agreement and keep him from working at all. Then, there might
be a threat of beating up his family or himself if he did not join
and sign a card. I think when we get to the case of unions, there
might be the actually violent act of forcibly, by mass picketing,
preventing a man from working.
Let us take the case of mass picketing, which absolutely pre-
vents all the office force from going into the office of a plant. That
would be restraint and coercion against those employees, and in-
terference with their right to work... .
The effect of the pending amendment is that the Board may call
the union before them, exactly as it has called the employer, and
say, "Here are the rules of the game. You must cease and desist
from coercing and restraining the employees who want to work;
from going to work and earning the money which they are entitled
A
NATIONAL MARITIME UNION OF AMERICA 985
to earn." The Board may say, "You can persuade them; you
,can put up signs; you can conduct any form of propaganda you
want to in order to persuade them, but you cannot, by threat of
force or threat of economic reprisal, prevent them from exercising
their 'right to work." As I see it, that is the effect of the amend-
ment. [Emphasis supplied.] (Cong. Rec., May 2, 1947, p. 4561-
4562. )
During the debate, Senator Ball said of the amendment : "What
we are trying to reach here, it seems to me, is the coercive activity in
which some unions and their agents indulge in their organizational and
election campaigns...." [Emphasis supplied.] (Cong. Bee., May 2,
1947, p. 4560.) Senator Ball expressed the same thought as to the
purpose of the amendment in a radio broadcast which he delivered
during the pendency of the Taft-Hartley bill before Congress : ".. .
the only purpose [of Section 8 (b) (1) (A)] is to protect the rights
of employees, to free them from the coercion of goon squads and other
strong-arm organizing techniques which a few unions use today."
[Emphasis supplied.] 23
In answer to Senator Morse's observation that the amendment
would outlaw all strikes to further organization activities, Senator
Taft stated :
I can see nothing in the pending measure which, as suggested
by the Senator from Oregon [Morse], would in some way outlaw
strikes. It would outlaw threats against employees. It would
not outlaw anybody striking who wanted to strike. It would not
prevent anyone using the strike in a legitimate way, conducting
peaceful picketing or employing persuasion. All it would do
would be to outlaw such restraint and coercion as would prevent
people from going to work if they wished to go to work. [Em-
phasis supplied.] (Cong. Bec., May 2, 1947, p. 4563.)
This legislative history strongly suggests that Congress was inter-
ested in eliminating physical violence and intimidation by unions or
their representatives, as well as the use by unions of threats of economic
action against specific individuals in an effort to compel them to join.
Nothing in this legislative history indicates that a union which refuses
to bargain is to be considered as having per se "restrained" or "coerced"
employees in the exercise of their rights guaranteed in Section 7, par-
ticularly where, as in this case, the finding of refusal to bargain is bot-
tomed solely on the union's insistence upon a demand for a provision
which is found to be-unlawful. Nor is there any suggestion in the
23 Senator Ball inserted the speech in the Congressional Record. Cong. Rec., May 13,
1947 , p. A2378.
'986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legislative history of Section 8 (b) (1) (A) that "coercion" and "re-
straint" may be found to flow automatically from a union's violation
of Section 8 (b) (2) where, as in this case, the efforts of the union were
not directed against a particular individual or group of individuals,
and constituted merely an attempt to cause the employer to discrimi-
nate within the meaning of Section 8 (b) (2).
We are mindful of the fact that the Respondents' strike had as its
purpose the accomplishment of an illegal objective; but we are not
prepared to say, as the General Counsel and the Trial Examiner did,
that a strike for an- illegal objective necessarily "restrains" and "co-
erces" employees, as those terms were intended to be applied in Sec-
tion 8 (b) (1) (A). The touchstone of a strike which is violative of
Section 8 (b) (1) (A) is normally the means by which it is accom-
plished, so long as its objective is directly related to the interests of
the strikers, and not directed primarily at compelling other employees
to forego the rights which Section 7 protects. It is true, of course,
that had the strike in this case succeeded and had contracts contain-
ing the hiring-hall clause been executed, seamen who were not NMU,
members would be required to join NMU or suffer the discrimination
which the hiring hall entails. But this strike, though violative of
Section 8 (b) (2), had as its prime objective the protection of the
employment interests of NMU members, and not the coercing of non-
members to join the union. As such, and having been peacefully con-
ducted, we find that it did not violate Section 8 (b) (1) (A).
In our view the position taken by our dissenting colleague places
too much emphasis on the admitted fact that the action of the Respond-
ents, had it succeeded, would ultimately have subjected some seamen
to discrimination. Mr. Gray's reasoning, carried to its logical con-
clusion, would require outlawing practically any strike opposed by
some employees. If a group of employees were to strike for recogni-
tion in the absence of an established bargaining representative, and
other employees were to oppose the strike, the strike would violate the
Act, under Mr. Gray's reasoning, because it would interfere with the
statutory right of the opposing employees not to join a labor organi-
zation and not to bargain collectively. As we have seen, however,
Senator Taft expressly disclaimed that this would be the effect of
Section 8 (b) (1) (A).
In finding that the strike in this case did not violate Section 8 (b)
(1) (A), we do not mean to imply that any strikers in this case who
were discharged because of the strike would be entitled to reinstate-
ment and back pay if charges were brought on their behalf pursuant
to Section 8 (a) of the Act. To say that a strike is not violative of
Section 8 (b) (1) (A) is not necessarily to say that it constitutes a
NATIONAL MARITIME UNION OF AMERICA 987
concerted activity protected by Section 7.24 The latter distinguishable
issue is not before us in the instant case, and we do not pass upon it.
4. The Remedy
Although we have found that by insisting upon and striking for
the hiring hall, the Respondents have violated Section 8 (b) (2), we
have confined our determination to the specific hiring-hall practices
before us in this case, and to the practices which flowed from the "lay-
ing up and fitting out" clause, in each of which we have found dis-
crimination based on union membership. We shall therefore con-
fine our order in this respect to a prohibition against the Respond-
ent's requiring that the Companies execute contracts which by their
terms or in their performance require the Companies to discriminate
against employees who are not members of NMU in regard to their
hire or tenure of employment or any term.or condition of employ-
ment except in accordance with the provisos in Section 8 (a) (3) of
the Act. Inasmuch, however, as we have found that the strike was
one of the means by which the Respondents sought to obtain such
contracts, we shall expand the Trial Examiner's recommended order
to prohibit specifically the instigation or approval of strike action for
such purposes.
Having found that the Respondents have refused to bargain in
violation of Section 8 (b) (3), we shall order NMU and the individual
Respondents to bargain collectively upon request of the Companies.
In this connection, a question arises as to whether such an order is in
any way inconsistent with the action taken by the Board in Matter of
Marshall and Bruce Company, 75 N. L. R. B. 90, in view of the fact
that NMU is not in compliance with Section 9 (f), (g), and (h) of
the Act. In that case, though finding that the employer had refused
to bargain, we ruled that as a matter of policy we would not direct
the employer to bargain with a union which was not in compliance
with Section 9 (f), (g), and (h) of the Act. We stated in that deci-
sion :
Although the present proceeding does not involve the actual
certification of a bargaining representative an order requiring
an employer to bargain collectively with a labor organization is
often tantamount in practice to a certification of the latter as
bargaining representaive. It looks toward a future relation-
ship. . . . We are convinced that Section 9 (f), (g), and (h)
24 See Matter of American News Company , 55 N L R. B. 1302; Matter of Thompson
Products, Inc., 72 N. L R B. 886, Matter of Scullin Steel Company, 65 N. L. R. B. 1294 ;
N. L. R B. V. Fansteel Metallurgical Corp , 306 U. S 240; N. L. R B. v. Sands Manufac-
turing Company , 306 U S. 332.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not only provide procedural limitations upon the Board's power
to act with respect to cases arising after the effective date of the
amendment, but also embody a public policy denying utilization
of the Board's processes directly to aid the bargaining position
of a labor organization which has failed to comply with the fore-
going sections.
The issue presented is whether similar considerations require that
as a matter of policy we should not direct non-complying unions to
bargain when they have violated the Act themselves. We believe not.
It is true, of course, that such an order involves a recognition by the
Board of the authority of the union to bargain, and thus, at least in-
directly, may aid the bargaining position of the union. However, in
an effort to avoid even indirect assistance to the bargaining position
of a non-complying union, we cannot ignore the basic objective of
Section 9 (f), (g), and ,(h), which was to prohibit use of the Board's
facilities on behalf of non-complying, unions, and not to provide for
such unions a means of avoiding the obligation to bargain which Sec-
tion 8 (b) (3) imposes.25 The latter would be the result of a decision
not to exercise our power to order the Respondents in this case to
bargain.
However, so that it may be clear that in ordering NMU to bargain
we are not certifying it as the exclusive bargaining representative of
the employees herein involved, we shall modify the Trial Examiner's
recommended order to require that NMU bargain collectively with
the Companies upon request so long as it is the representative of the
Companies' employees, subject to the provisions of Section 9 (a) of
the Act.
Cleveland Tankers, Inc., Lake Tankers Corporation, and Great
Lakes Transport Corporation have requested that, as part of the ap-
propriate remedy in his case, the Board assess the Respondents with
such monetary damages as these complainants may have suffered as
a result of the strike authorized by the Respondents. The Trial Exam-
iner denied this request, and we agree with his ruling.
The power of the Board to prevent and remedy unfair labor prac-
tices is granted in Section 10 (c) of the Act, as amended. This pro-
vides, in relevant part:
If upon the preponderance of the testimony taken the Board
shall be of the opinion that any person named in the complaint
has engaged in or is engaged in any . . . unfair labor practice,
then the Board shall state its findings of fact and shall issue and
m Following similar reasoning , the Board has already held that failure of a union to
comply with Section 9 ( f), (g), and ( h) does not immunize it against decertification.
Matter of Harris Foundry d Machine Company, 76 N. L. R B. 118.
NATIONAL MARITIME UNION OF AMERICA 989'
cause to be served on such person an order requiring such person
to cease and desist from such unfair labor practice, and to take
such affirmative action including reinstatement of employees with
or without back pay, as will effectuate the policies of this Act.
Provided, that where an order directs reinstatement of an em-
ployee, back pay may be required of the employer or labor organ-
ization, as the case may be, responsible for the discrimination suf-
fered by him.
The Companies maintain that the assessment of damages against
unions which strike for the purpose of compelling employers to dis-
criminate unlawfully against employees will "effectuate the policies
of this Act," in that it will encourage employers to resist such union
demands if they are made whole for the economic consequences of a
strike. Even if we assume that assessing money damages against
unions that have caused a strike in violation of Section 8 (b) (2)
would have the result claimed for it by the Companies, to do so would
involve our assuming a power which is appropriately a function of the
courts, rather than of administrative tribunals. We would take such
a step only if we believed that it was clearly the intention of the Con-
gress that we do so.2e We find no such mandate in the amended Act;
fo the contrary we find, in the structure of the Act, and in its legisla-
tive history, a clear prohibition against our granting the remedy which
the Companies here seek.
With the exception of the provision entitling the Board to require a
labor organization to pay back pay where it has been responsible for
unlawful discrimination against employees, Section 10 (c), insofar as
is here relevant, is a reenactment of the identical provision in the
Wagner Act. In exercising the power which Section 10 (c) of the
Wagner Act conferred, the Board has, of course, ordered the payment
of'monies; but in each case such order was based on either the specific
language of Section 10 (c) (e. g., a back pay order), or the fact that
the order was a necessary concomitant of the remedies which Section
10 (c), in its specific language or legislative history, provided for ZT
iB In Republic Steel Corporation v N L. R B , 311 U S 7, the Supreme Court rejected
an order' of the Board directing the employer who had discriminatorily discharged em-
ployees to deduct from their back pay, and to pay over to appropriate governmental
agencies , amounts the employees had received for work performed on work-relief projects.
In the course of its opinion , the Court stated, "Had Congress been intent upon such a pro-
gram , we cannot doubt that Congress would have expressed ' its intent and would itself
have defined its retributive scheme."
=' The House Report on the bill which ultimately became the Wagner Act , referring to
the orders to be issued under Section 10 (c), stated :
The order will, of course, be adapted to the needs of the individual case , they may
Include such matters as retraining from collective bargaining with a minority group,
recognition of the agency chosen by the majority for the purposes of collective bar-
gaining, posting of appropriate bulletins , refraining from bargaining with an organiza-
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e. g., an order directing the employer to reimburse employees for
dues which he had "checked off" in behalf of a company-dominated
union) .28
The Act as now amended contains provisions which are designed for
the protection of employers as well as employees. It is thus particu-
larly significant that in amending the Act Congress did not change
Section 10 (c) except in the one respect noted above. Other sections
were added to the Act to provide employers with special remedies not
encompassed by Section 10 (c) in cases of union unfair labor practices.
Thus Section 10 (1) requires the Board to obtain an injunction against
a union's violation of Section 8 (b) (4) (A), (B), or (C), if it has
cause to believe that a charge of such violation is true. In addition,
Congress provided in Section 303 of the amended Act for suits in the
Federal district courts for damages resulting from certain acts of
unions or their representatives, which are also made unfair labor prac-
tices in Section 8 (b) (4). Congress thus considered the issue of money.
damages resulting from strikes which are union unfair labor practices.
It confined the right to obtain money damages to cases involving spe-
cific kinds of strikes, and made the Federal district courts available for
such suits.
That Congress did not intend thereby to vest in the Board a similar
power to assess unions with money damages resulting from strikes is
most clearly indicated in the legislative history of Section 303. This
section, as finally enacted, was introduced by Senator Taft as an
amendment to the Senate Bill (S. 1126). An earlier amendment by
Senator Ball would have permitted employers to obtain injunctions in
the Federal district courts against unions. Explaining the fact that
his amendment was confined to damage suits, Senator Taft stated :
It retains simply a right of suit for damages against any labor
organization which undertakes a secondary boycott or a jurisdic-
tional strike. I think it is a most effective remedy. Under the
bill there is a kind of injunctive remedy through the National
Labor Relations Board, but there is no possibility of a suit for
damages. [Emphasis supplied.] (Cong. Rec., May 9, 1947,
p. 5060.)
tion corrupted by unfair labor practices . The most frequent form of affirmative action
required in cases of this type is specifically provided for, i e., the reinstatement of
employees with or without back pay, as the circumstances dictate. No private right of
action is contemplated . [Emphasis supplied ] ( House Report No 1147, 74th Cong.,
1st Sess ., p. 24).
28 Virginia Electric d Power Co . v. N. L. R. B ., 319 U S 533 In ruling that the author-
ity to order the reimbursement of employees for checked -off dues may be found in the
language and basic policy of the Wagner Act , the Court stated : "The deduction of dues
from wages under the circumstances of this case is not unlike a loss occasioned by a dis-
criminatory discharge , and an order for the return of those checked -off dues promotes the
policies of the Act in substantially the same manner as would a back pay award."
NATIONAL MARITIME UNION OF AMERICA 991
The following colloquy between Senator Ellender and Senator Taft
is especially significant :
. Sen. ELLENDER. . . . As I understand, the Senator's amend-
ment does not in any way affect the injunctive process provided
for in the pending bill, but simply provides for an additional
remedy by way of suits for damages.
Sen. TAFT. The Senator is correct. We considered making
it a procedure through the National Labor Relations Board also,
but it is not felt I think by any of those on the other side of these
questions that the Labor Board is an effective tribunal for the
purposes of trying to assess damages in such a case. I do not
think anyone felt that particular function should be in the Board.
So if any such remedy is to be provided at all, if there is to be
any recourse for financial losses caused by unions it must be by
direct suit as proposed by amendment. [Emphasis supplied.]
(Cong. Rec., May 9, 1947, p. 5060.)
In the light of these considerations we find that we are without
power to assess damages against the Respondents in the situation
involved in this case. 9
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. National Maritime Union of America, affiliated with the Congress
of Industrial Organizations, and its officers, representatives and agents,
shall :
a. Cease and desist from :
(1) Refusing to bargain collectively with the employers of the
employees in the units found to be appropriate in the Intermediate
Report, attached hereto, so long as it is the representative of these
employees, subject to the provisions of Section 9 (a) of the Act.
(2) Requiring, instructing, or inducing its representatives to re-
quire that the Companies execute contracts which expressly, or in
their performance, make membership in NMU a condition of employ-
ment, except in accordance with the provisos in Section 8 (a) (3)
of the Act.
21 Our ruling that this Boaid is without power to assess a labor organization with money
damages resulting from a strike which is violative of Section 8 (b) (2) is not to be taken,
as passing on the question of whether this Board has power to require labor organizations or
their agents • to restore funds exacted from employees or employers in violation of Section
8 (b) (5) or 8 ( b) (6).
992 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) Directing, instigating, or encouraging employees to engage in
a strike, or approving or ratifying strike action taken by employees, for
the purpose of requiring that the Companies execute contracts which
expressly, or in their performance, make membership in NMU a condi-
tion of employment, except in accordance with the provisos in Section
8 (a) (3) of the Act.
(4) Causing or attempting to cause the Companies to discriminate
in any manner against their respective employees, in violation of
Section 8 (a) (3) of the Act.
b. Take the following' affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Upon request, bargain collectively with the employers of the-
employees in the units found to be appropriate in the Intermediate
Report, attached hereto, so long as it is the representative of these
employees, subject to the provisions of Section 9 (a) of the Act.
(2) Post immediately in conspicuous places, including all places
where notices to members are customarily posted, copies of the notice
attached hereto and marked "Appendix A." 30 The notices shall be
signed by a duly authorized officer of NMU.
(3) Notify the Regional Director for the Thirteenth Region (Chi-
cago, Illinois), in writing, within ten (10) days from the date of this
Order, what steps NMU has taken to comply therewith.
2. Joseph Curran, Jack Lawrenson, Josh Lawrence, Chester Young,
Harold McCormick, Michael McBride, and Charles Monroe, and each
of them, and their respective agents, successors, and assigns, shall :
a. Cease and desist from :
(1) Refusing to bargain collectively with the employers of the
employees in the units found to be appropriate in the Intermediate-
Report, attached hereto, so long as NMU is the representative of these
employees, subject to the provisions of Section 9 (a) of the Act.
(2) Requiring that the Companies execute contracts which expressly,
or in their performance, make membership in NMU a condition of
employment, except in accordance with the provisos in Section 8 (a)
(3) of the Act.
(3) Directing, instigating, or encouraging employees to engage in
a strike, or approving or ratifying strike action taken by employees,
for the purpose of requiring that the Companies execute contracts-
which expressly, or in their performance, make membership in NMU'
a condition of employment, except in accordance with the provisos in
Section 8 (a) (3) of the Act.
ao In the event that this order is enforced by a decree of a Circuit Court of Appeals, there
shall be inserted before the words "A Decision and Order ," the words , "A Decree of the
United States Court of Appeals Enforcing "
NATIONAL MARITIME UNION OF AMERICA 993
(4) Causing or attempting to cause the Companies-to discriminate
in any manner against their respective employees, in violation of
Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Upon request bargain collectively with the employers of the
employees in the units found to be appropriate in the Intermediate
Report, attached hereto, so long as NMU is the representative of these
employees, subject to the provisions of-Section 9 (a) of the Act.
(2) Post immediately in conspicuous places, including all places
.where notices to members are customarily posted, copies of the notice
attached hereto and marked "Appendix B." 31 The notices shall be
.signed by Curran, Lawrenson, Lawrence, Young, McCormick, Mc-
Bride, and Monroe, or their successors to offices of NMU.
(3) Notify the Regional Director for the Thirteenth Region (Chi-
cago, Illinois), in writing, within ten (10) days from the date of this
Order, what steps each has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed with respect to the allegation that the Respondents coerced and,
restrained employees in violation of Section 8 (b) (1) (A) of the
Act.
MEMBER GRAY, concurring in part and dissenting in part:
I concur in the findings of my colleagues that the Respondents vio-
lated Section 8 (b) (2) and 8 (b) (3) of the Act, and in the Order
based upon those findings. I disagree, however, with the finding of
'my colleagues that the Respondents did not violate Section 8 (b) (1)
(A) of the Act and the dismissal of that allegation of the complaint.
As indicated in the legislative history set forth in the majority
opinion , the purpose of the amendment which became Section 8 (b)
(1) (A) was to make it an unfair labor practice for labor organiza-
tions, by the use of improper economic pressure and other means, to
,prevent employees from exercising their right to work. That is the.
plain and clear intendment of this Section of the Statute. The hiring
ball-clause demanded by the NMU and the strike to enforce that de-
mand, under the circumstances set forth in the majority opinion would
exert such economic pressure upon employees and applicants for em-
ployment by depriving them of work unless they joined the NMU.
n In the event that this Order is enforced by a decree of a Circuit Court of Appeals, there
Bha1l be inserted before the words "A Decision and Order ," the words , "A Decree of the
,United States Court of Appeals enforcing."
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Such conduct, in my opinion, falls squarely within the prohibition of
Section 8 (b) (1) (A) as defined in the Statute and as interpreted
by the Congress.
The assertion of the majority that this Section is not applicable
because the conduct of NMU was not directed against a particular
individual or group of individuals but against the employers, is wholly
unrealistic and opens a wide avenue for perpetration by labor organi-
zations of the very evils which Congress sought to correct. The im-
proper economic coercion to which the employees are subjected is no
less real and effective because enforced through the medium of the
employer where the labor organization is the instigator and prime
movant, and the employees are not so naive as to be unaware of these
facts. Moreover, this Board has never hesitated to find an unfair labor
practice against an employer merely because the employer exerted
pressure upon a third party to engage in the conduct which would be
unlawful if the employer had itself committed the proscribed acts.
In any event, I am of the opinion that the efforts of the NMU were
directed against a group of individuals. We have recently held that
the broad definition of the term "employee" in Section 2 (3) of the
Act includes "members of the working class generally" and "covers,
in addition to employees of a particular employer, employees of an-
other employer, or former employees of a particular employer, or even
applicants for employment." 32 In the instant case, the economic pres-
sure exerted by the NMU was being directed against all the members of
the working class who were otherwise eligible for employment, regard-
less of whether they were applicants for employment or were currently
employed by the companies involved. The conduct of NMU consti-
tuted restraint and coercion against this group of individuals, regarded
by the Board as employees, by depriving them of their full and free
employment opportunity unless they became members of NMU.
Nor is it any defense to say, as does the majority, that the strike had
as its prime objective only the protection of the employment interests
of NMU members. Such an objective would be meaningless unless it
encompassed discrimination against non-NMU members or resulted
'in compelling non-members to join the NMU. These objectives are
so intertwined as to constitute one and the same.
I hold only that on the facts in this case the Respondents' conduct
in demanding the hiring-hall clause and in striking to enforce its
demand, under the circumstances set forth in the majority opinion also
violated Section 8 (b) (1) (A) and I would issue an appropriate Order
based on such findings.
Matter of Briggs Manufacturing Company, 75 N. L R. B. 569:
NATIONAL MARITIME UNION OF AMERICA 995
APPENDIX A
To ALL OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS OF THE
NATIONAL MARITIME UNION OF AMERICA
Pursuant to a Decision and Order 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 you that :
WE WILL NOT refuse to bargain collectively as the exclusive
representative of the employees in the units found appropriate
in the Intermediate Report of the Trial Examiner in Cases Nos.
13-CB-19, 13-CB-20, 13-CB-21, and 13-CB-22, with the Texas
Company, Cleveland Tankers, Inc., Lake Tankers Corporation,
and Great Lakes Transport Corporation, respectively, with re-
spect to rates of pay, wages, hours of employment, and other
conditions of employment of the employees in such units;
WE WILL NOT require, instruct, or induce our representatives
or agents to require that the above-named Companies execute
contracts which expressly, or in their performance, make mem-
bership in NMU a condition of employment, except in accord-
ance with the provisos in Section 8 (a) (3) of the aforesaid Act;
WE WILL NOT direct, instigate, encourage, approve, or ratify
strike action for the purpose of requiring that the above-named
Companies execute contracts which expressly, or in their perform-
ance, make membership in NMU a condition of employment,
except in accordance with the provisos in Section 8 (a) (3) of
the aforesaid Act;
WE WILL NOT cause, or attempt to cause, the above-named Com-
panies to discriminate in any manner against their respective
employees, in violation of Section 8 (a) (3) of the aforesaid Act.
NATIONAL MARITIME UNION OF AMERICA
By -----------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
•996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
TO` ALL OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS OF THE
NATIONAL MARITIME UNION OF' AMERICA
1
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT refuse to bargain collectively as the agents of
NMU, the exclusive representative of the employees in the units
found appropriate in the Intermediate Report of the Trial Ex-
aminer in Cases Nos. 13-CB-19, 13-CB-20, 13-CB-21, and
13-CB-22, with the Texas Company, Cleveland Tankers, Inc.,
Lake Tankers Corporation, and Great Lakes Transport Corpo-
ration, respectively, with respect to rates of pay, wages, hours of
employment, and other conditions of employment of the employees
in such units; -
WE WILL NOT require that the Texas Company, Cleveland
Tankers, Inc., Lake Tankers Corporation, and Great Lakes Trans-
port Corporation execute contracts which expressly, or in their
performance, make membership in NMU a condition of employ-
ment, except in accordance with the provisos in Section 8 (a) (3)
of the aforesaid Act;
WE WILL NOT direct, instigate, approve, or ratify strike action
taken for the purpose of requiring that the above-named Com-
panies execute contracts which expressly, or in their performance,
make membership in NMU a condition of employment, except in
accordance with the provisos in Section 8 (a) (3) of the aforesaid
Act ;
WE WILL NOT cause, or attempt to cause, the above-named Com-
panies to discriminate in any manner against their respective
employees, in violation of Section 8 (a) (3) of the aforesaid Act.
JOSEPH CURRAN,
JACK LAWRENSON,
JOSH LAWRENCE,
CHESTER YOUNG,
HAROLD MCCORMICK,
MICHAEL MCBRIDE,
CHARLES MONROE,
As Agents for NMU.
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other-material.
NATIONAL MARITIME UNION OF AMERICA 997
INTERMEDIATE REPORT
Messrs. Reeves R. Hilton and Het man De Koven, for the General Counsel.
Pope cE Ballard, by Mr. Wtlhant F. Price, of Chicago , Ill., for Cleveland Tankers,
Inc., Lake Tankers Corporation , and Great Lakes Transport Corporation.
Mr. Hugh McCloskey, of New York, N. Y., for The Texas Company.
Mr William L. Standard, by Mr Herman Rosenfeld, of New York , N. Y., for
,the Respondents.
STATEMENT OF THE CASE
Upon amended charges duly filed by The Texas Company , May 28, 1948 (Case
No. 13-CB-19 ), Cleveland Tankers , Inc., on May 27 , 1948 , ( Case No. 13-CB-20),
Lake Tankers Corporation on May 27, 1948 ( Case No. 13-CB-21 ), and Great Lakes
Transport Corporation on May 27, 1948 ( Case No. 13-CB-22 ), herein collectively
called the Companies, the General Counsel of the National Labor Relations Board,
herein called respectively the General Counsel and the Board , by the then acting
Regional Director for the Thirteenth Region ( Chicago, Illinois ), issued his com-
plaint, after the said Regional Director had issued an order pursuant to Section
203 33 ( b) of the Board 's Rules and Regulations , Series 5, consolidating the above
numbered cases, against National Maritime Union of America , affiliated with the
Congress of Industrial Organizations , Joseph Curran , Jack Lawrenson, Josh
Lawrence , Chester Young, Harold McCormick , Michael McBride, and Charles
Monroe, its agents, herein collectively called the respondents , and respectively
NMU, Curran , Lawrenson , Lawrence , Young, McCormick , McBride, and Monroe,
alleging that the aforesaid respondents , and each of them, had engaged in, and
are engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (b) (1) (A ), (2) and ( 3), and Section 2 (6) and ( 7) of the National
Labor Relations Act, as amended ( Public Law 101, 80th Congress , Chapter 120,
First Session ), herein called the Act. Copies of the complaint and the charges,
together with notice of hearing thereon, were duly served upon each Respondent
and upon each of the Companies.
With respect to the unfair labor practices , the complaint alleged in substance
that ( 1) at all times since December 18, 1947, the Respondents have refused
to enter into any extension agreement pending negotiations for a new collective
bargaining contract , because the Companies had refused to include in such
extension agreement provisions requiring the Companies to hire all replace-
ments of employees in certain appropriate units, as vacancies occur, through the
offices of the NMU and with respect to the Companies , other than Texas, a
further provision that if, in "fitting out and laying up vessels ," the hiring of
employees in the respective appropriate unit of the said three Companies, the
said Companies will employ members of the Union ; ( 2) since December 18, 1947,
especially during the bargaining negotiations between NMU and each of the
Companies with respect to new collective bargaining contracts covering the
employees in each of the appropriate units, the NMU and Curran , in the course
of such negotiations with Texas, and NMU, Curran , Lawrenson , Lawrence, Young,
McCormick , McBride, and Monroe, in the course of such negotiations with
Cleveland , Lake Tankers , and Great Lakes Transport , demanded and insisted
that each of the Companies execute new collective bargaining contracts with
NMU containing , among other clauses, , provisions requiring each of the Com-
panies to -hire all replacements of employees in the respective appropriate units,
as vacancies occur, through the==offices of NMU and in the case of Cleveland,
Lake tankers, and Great Lakes Transport, a further provision that if, in
Ill
798767-49-vol `78-64 -
998 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"fitting out and laying up" vessels, replacements of employees in the respective
appropriate units of Cleveland, Lake Tankers, and Great Lakes Transport are
necessary, the Companies will employ members of NMU ; (3) because of the
Companies' refusal to comply with the aforesaid demands of the respondents and
in order to compel the Companies to comply with said demands, the respondents,
since May 13, 1948, have directed, instigated, inspired, induced, and encouraged
employees in the appropriate units to engage in a strike and not to sail the
Companies' vessels, and approved, adopted, and ratified the strike action taken
by the said employees; (4) at all times since August 21, 1947, the NMU has been,
and still is, the duly designated representative of the unlicensed personnel
employed by the respective Companies for the purposes of collective bargaining
with the said Companies; and (5) each respondent has engaged in, and is
engaging in, certain other stated activities which restrained and coerced, and
are restraining and coercing, the employees of the Companies in the exercise of
the rights guaranteed in Section 7 of the Act.
A joint answer was duly filed by the respondents in which they denied the
commission of the alleged unfair labor practices.
Pursuant to notice, a hearing was held in Chicago, Illinois, on June 14, 15,
and 16, 1948, before Howard Myers, the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. Each party was represented by counsel
and participated in the hearing Shortly after the opening of the hearing, how-
ever, counsel for the respondents withdrew from the hearing and did not thereafter
participate therein. Full opportunity to be heard; to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues was afforded all
parties. 4A the conclusion of the taking of the evidence, the General Counsel
moved to conform the pleadings to the proof. The motion was granted without
objection Although afforded an opportunity to do so, none of the parties filed
briefs and/or proposed Findings of Fact and Conclusions of Law with the
undersigned except brief has been received from the attorneys for Cleveland,
Lake Tankers, and Great Lakes Transport, which brief has been considered by
the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
The Texas Company, herein called Texas, a Delaware corporation having its
principal offices in New York, New York, is engaged in the production, refining,
distribution, and sale of petroleum and petroleum products in all the 48 States
of the United States and in a number of foreign countries. Texas owns and
operates 2 tankers (S. S. Maine and S. S Michigan) that sail upon the Great
Lakes and a fleet of vessels that sail upon the Gulf of Mexico, and upon the
Pacific and Atlantic oceans. During Texas' normal shipping season upon the
Great Lakes (latter part of March or early April to the latter part of November
or early December) the S. S. Maine and S. S. Michigan, the unlicensed personnel
of which boats are the only employees of Texas involved in this proceeding, annu-
ally transport to and from ports located in the States of New York, Indiana, Ohio,
Michigan , and Wisconsin, approximately 31/2 million barrels of petroleum or
petroleum products.
Cleveland Tankers, Inc., herein called Cleveland, a Delaware corporation hav-
ing its principal o4ces ij Cleveland , Ohio, is engaged in the transportation ujion
NATIONAL MARITIME UNION OF AMERICA 999
the Great Lakes of petroleum products for such firms as Globe Oil Company, City
Service Oil Company, Sinclair Oil Company, The Texas Oil Company, and Phillips
Petroleum Company. Upon the Great Lakes Cleveland owns and operates four
tankers, S S. Rocket, S. S. Comet, S. S. Meteor, and S. S. Edgewater, the unlicensed
personnel of which boats are the only employees of Cleveland involved in this
proceeding. During Cleveland's normal shipping season upon the Great Lakes
(April 15 to November 30), the above-named four tankers annually transport to
and from ports located in the States of Indiana, Wisconsin, Minnesota, Michigan,
Ohio, and New York, in excess of 3 million barrels of petroleum products having a
value of approximately $15,000,000.
Lake Tankers Corporation, herein called Lake Tankers, a Delaware corpora-
tion having its principal offices in New York, New York, is engaged in the trans-
portation of bulk oil upon the Great Lakes for the Shell Oil Company. Lake
Tankers owns and operates the M. V. Martha E. Allen, the unlicensed personnel of
which boat are the only employees of Lake Tankers involved in this proceeding.
During Lake Tankers' normal shipping season upon the Great Lakes (April 15 to
December 1), the M. V. Martha E. Allen annually transports from and to ports
located in the States of Indiana, Wisconsin, Michigan, Ohio, and Missouri approxi-
mately 2,400,000 barrels of bulk oil having a value of about $10,000,000.
Great Lakes Transport Corporation, herein called Great Lakes Transport, a
Delaware corporation having its principal offices in Detroit, Michigan, is engaged
in transporting bulk petroleum products, tar and molasses for Pure Oil Company,
Fuel Oil Corporation, Standard Oil Company of Ohio, and other major oil com-
panies. Great Lakes Transport owns and operates the S. S. Panoil and the S. S.
Wescoat. The unlicensed- personnel of the S. S. Panoil are the only employees of
Great Lakes Transport involved in this proceeding. During Great Lakes Trans-
port's normal shipping season upon the Great Lakes (March 15 to Deember 10),
Panoil annually transports from and to ports located in the States of New York,
Illinois, Michigan, Ohio, and Wisconsin about 4,650,000 barrels of gasoline having
a value of approximately $16,000,000.
Upon the foregoing facts, the Companies are, and each of them is, plainly
engaged in commerce, within the meaning of the Act, and the undersigned so finds,
The test of the Board's jurisdiction under the Act is whether a stoppage of opera-
tions by industrial strike in the enterprise involved would result in substantial
interruption to or interference with the free flow of commerce. The pertinent
facts in the instant proceeding leave no doubt of the crippling effects upon inter-
state commerce that a cessation of the Companies' operations by industrial strife
would entail and has entailed.
II. THE LABOR ORGANIZATION INVOLVED
National Maritime Union, affiliated with the Congress of Industrial Organiza-
tions, is a labor organization admitting to membership employees of the
Companies.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively with The Texas Company
1. The appropriate unit with respect to Texas' employees and representation by
NMU of a majority therein
---With-rsepect, to Texas, the complaint alleged, the answer admitted, and upon
the entire record in the case the undersigned finds, that the unlicensed personnel
employed by Texas On its vessel s̀ S. S. Maine and S. S. Michigan, any 'other
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vessels owned and operated, or chartered and operated bareboat by Texas when
upon the Great Lakes or when being transferred from the Great Lakes to an
Atlantic or Gulf Coast port, constitute, and at all times material herein did
constitute, a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act. The undersigned further finds that
the said unit insures to the said employees of Texas the full benefit of their
right to self-organization and collective bargaining and otherwise effectuates the
,policies of the Act.
The complaint also alleged, the answer also admitted, and upon the entire
record in the case the undersigned also finds, that on August 21, 1947, and at
all times, thereafter, NMU has been, and still is, the duly designated representa-
tive of all the employees of Texas and its aforesaid appropriate unit for the
purposes of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
2. The negotiations
In April 1947, NMU wrote Texas requesting an appointment for the purposes
of negotiating a collective bargaining contract to become effective upon the
expiration of the then existing contract. Texas replied that it was ready to
meet with NMU at a time convenient to NMU. About August 1, NMU informed
Texas that Josh Lawrence, National Director of NMU for the Great Lakes, would
be in New York, where Texas has its principal offices and where NMU has its
national offices, on August 17, and that Lawrence would like to confer with
Texas on that date. The parties met on three occasions between August 17
and 21, and on the latter date a contract to be effective until January 19, 1948,
was executed. On the same date an addendum to the contract was also executed.
The contract contained, among others, the following provision :
The Union agrees to furnish satisfactory men and the Company agrees that
during the period that this agreement is in effect all replacements shall be
hired through the offices of the Union, as-vacancies occur. The Company may
reject such replacements, provided :
(a) The rejections are for valid reasons, and
(b) The Company states in writing to the officers of the Union the reasons
for such rejections, and that the Union shall have the right to take up such
rejections under the grievance machinery outlined in subsections 3 and 4
of Section 7 and in Section 8 of Article I of this agreement.
When a rejection is made, the Union shall immediately supply a
replacement. If the Union cannot furnish replacements by one (1) hour be-
fore sailing time, the Company shall have the right to obtain replacements
wherever possible.
A provision of the addendum reads as follows :
In fitting out and laying up vessels, when replacements are necessary, the
Company will obtain them as provided in Section 2 of Article I, except that
the Company may obtain replacements wherever possible if the union, in
response to the Company's request for replacements, is unable to supply same
within twenty-four (24) hours: . .. .
By letter, dated November 19, 1947, Lawrence informed Texas that NMU would
like to amend the then existing contract, to be effective on and after January 20,
1948, by (1) increasing the wage and, overtime rates, (2) changing'the working
.rules'in the Deck, Engine, and Steward Departments,, (3) payment of compensa-
tion in the form of paid leave days for unpaid time spent aboard the vessels, and
(4) elimination of the no-strike clause. The letter also stated that NMU desired
NATIONAL MARITIME UNION OF AMERICA 1001
that all the other provisions of the contract remain in effect without change. The
letter concluded with a request that Texas meet with NMU on December 19, for
the purpose of discussing the suggested modifications.
Under date of November 26, Texas acknowledged the receipt of NMU's letter
and submitted certain amendments it desired to the contract. Among the sug-
gestions submitted was a modificatiton of the above-quoted clauses of the contract
and of the addendum, so that Texas' interests under the Act may be safeguarded.
The letter concluded with a request that the parties meet on December 15.
By agreement the parties met on December 19, in the New York offices of Texas.
NMU was represented by Lawrence, William McCarthy, National Director, Henry
E Brickle, a crewman of Texas' S S. Michigan, and R L. Weiss, a crewman of
Texas' S S. Maine . Texas was represented by A. S Angus, manager of the opera-
tional division of the marine department, his two assistants, Hugh McCloskey,
labor relations advisor, and several other officials
Lawrence was spokesman for NMU and McCloskey acted in that capacity for
Texas. Lawrence opened the meeting by outlining the demands of NMU and
gave his reasons why the demands should be granted. He added that the demands
were but a starting point and that he would willingly negotiate with respect to
them. Full discussion was had with respect to each demand, but no definite
agreement was reached with respect to any of them Agreement might have been
reached as to some of the demands had NMU's committee been in accord as to
just what it wanted. There seemed to be a difference of opinion especially with
respect to the proposed change in the working rules.
Discussion was then had on Texas' proposed modifications, especially Texas'
demand that the hiring hall clauses of the contract and of the addendum be
changed to conform with the Act. Texas contended that the then existing clauses
were repugnant to the Act. On the other hand, NMU contended that they were
legal and that neither Texas nor NMU would be subjecting themselves to a possible
violation of the Act by the retention of the said clauses.
No agreement was reached at this meeting except that the parties executed a
memorandum extending the then existing contract to February 19, 1948, and that
the parties should meet again on January 13.
At the opening of the January 13 meeting, which was attended by the same
group that attended the first meeting except that Herman Rosenfeld, counsel
for NMU, was also present, Lawrence was asked by McCloskey whether he was
prepared to state in more precise terms the proposals of NMU. Lawrence then
reiterated the demands he submitted at the previous conference. The dis-
cussion that ensued centered around Texas' demand for a modification of the
hiring hall clauses and the demand by NMU for the elimination of the no-strike
clause About an hour's discussion between Rosenfeld and McCloskey then
took place over the question of the legality of the hiring-hall clauses, Rosenfeld
maintaining that they were legal and McCloskey taking the opposite position.
"The upshot of it was" according to the credited testimony of McCloskey, "we
offered to prepare and submit to the union a proposal to be considered by them
as a substitute for the hiring hall clauses, . . .
Discussion was then had regarding the no-strike clause. Rosenfeld stated
that NMU did not want to be responsible for "quiekies" or for uncontrolled work
stoppages and strikes and therefore NMU wanted some clause that would re-
lieve it of liability for any such actions. McCloskey suggested a possible solu-
tion and after Rosenfeld agreed to consider it, the latter withdrew from the
conference.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several more hours of discussion was had regarding the proposed change
in the working rules. According to the credited testimony of McCloskey, Law-
rence "wasn't quite sure what they wanted. He thought that they would want
certain things, like a 40-hour week and so forth, and he and Mr. Brickle (the
crewman of S. S. Michigan) 'again got in an argument." The conference ad-
journed with the acceptance of McCloskey's suggestion that the parties meet again
during the week of January 19, and that in the interim, McCloskey would prepare
and submit to NMU a proposed hiring-hall clause and a proposed no-strike
clause. Lawrence also agreed to submit to Texas, prior to January 19, a pro-
posed collective bargaining contract.
On January 22, Lawrence wrote Texas that because of business engagements
he would be unable to prepare a proposed contract until the following week.
On January 24, Texas forwarded to Lawrence the proposals it desired to be
inserted in the new contract With respect to the hiring-hall and the no-strike
clauses, Texas proposed :
When the Company requires a replacement, it will notify the Union to such
effect. If an applicant, referred by the Union as a result of such notice, re-
ports for duty when the vacancy is still unfilled, such applicant shall be given
the job, provided (a) he meets the Company's basic minimum standards of
employment, and (b) unless, to give him the job. the Company would be
required to discriminate against any other employe or applicant on account
of membership or non-membership in a labor organization, or for the purpose
of encouraging or discouraging membership therein. Vacancies unfilled be-
cause of application of sub-division (a) hereof shall be handled in the same
manner as other replacements.
Employes hired to fill vacancies caused by Company approved leaves of
absence to other employes shall be considered temporary employes, and may
be discharged forthwith in order to provide reemployment for any employe
returning from leave.
a s * s r s s
The Union agrees that there shall be no strike, slowdown, sitdown, stoppage
of work, or holding up sailings while this Agreement is in effect. Members of
the Unlicensed Personnel participating in any such activity shall be subject
to discharge. If, as a result of any violation of this provision, the Company
shall determine to institute legal action against the Union or any member of
the Unlicensed Personnel, it shall advise the Union of such decision before
instituting such action.
The Company agrees that there shall be no lockout of the Unlicensed Per-
sonnel ; provided, however, that this provision shall in no manner prevent the
orderly termination by the Company of the employment of Unlicensed Per-
sonnel on any of its vessels, as in the manner provided in the shipping articles,
nor shall it prevent the discharge of any member of the Unlicensed Personnel
for cause. The Union shall have the right, within 10 days after the discharge
of any member of the Unlicensed Personnel for cause, to appeal such discharge
under the Third and following steps of the Grievance Procedure outlined in
Sections 7 and 8 (combined) of this Article I.
OnMarch 19, Lawrence submitted in writing to Texas certain demands of NMU.
The letter which contained the demands stated "unless otherwise noted no change
is proposed" in the contract expiring February 19, 1948; meaning, among other
clauses, the retention of the hiring-hall clauses.
NATIONAL MARITIME UNION OF AMERICA 1003
On March 31, Texas wrote Lawrence that it had received his letter containing
the proposals and suggested that the parties meet at an early date in order to
consummate a contract.
On April 3, Brickle wrote Texas that he was elected "Negotiator" for the crews
of S. S Michigan and S. S Maine at a joint meeting held by the crews on March 30.
The letter then stated "any proposed contract that you have now we KNOW noth-
ing about " Enclosed in the letter was a proposed contract. This proposal, which
purported to be a "Great Lakes" contract, was essentially a "deep-sea" contract.
In a number of respects these contracts differ. For example, the Great Lakes
contract has the seasonable bonus plan in lieu of vacations and also the wages on
the Great Lakes are higher than those paid on the deep sea boats A perusal of the
contracts submitted to Texas respectively by Brickle and Lawrence shows that
the Brickle contract adopted the best features of deep-sea contracts plus the Great
Lakes, wage scale. In short, it completely disregarded everything that Lawrence
had proposed, except the wage scale.
Under date of April 5. McCarthy, National Director of NMU, wrote Texas
requesting an appointment for the purpose of discussing, with a view of consum-
mating a contract, the proposals by Texas and those submitted by Lawrence.
By letter dated April- 7, Texas wrote Joseph Curran, president of NMU, out-
lining the events which had taken place between NMU and Texas from November
19, 1947, to the date of the letter, especially calling Curran's attention to the con-
flicting claims of representation by Brickle and Lawrence The letter concluded
with a request that Curran inform Texas of the identity of the persons with whom
NMU desires Texas to negotiate The same day, copies of the letter were sent to
Lawrence, McCarthy, and Brickle. Not having heard from Curran by April 29,
Texas wrote him on that day, sending copies of the letter to Lawrence, McCarthy,
and Brickle, asking Curran for advice with respect to the identity of the persons
Texas should bargain. No answer was received from Curran until May 18.
On May 6, Texas met with representatives of NMU regarding a new contract
to replace the one that would expire on June 15, 1948, covering Texas' deep-sea
vessels. McCarthy, M. Healey Stone, treasurer of NMU, and three other officials
were there representing NMU. Practically the same persons attended this con-
ference representing Texas as were present during the conference regarding the
S. S. Michigan and S S. Maine. At the conference, the question of the legality
of the hiring hall was raised by Texas The representatives of NMU stated that
the hiring ball clause had to be retained in the new contract, adding that such a
clause was not repugnant to the Act When asked how the hiring hall actually
operated, the representatives replied, according to McCloskey's credited testimony :
That at the hiring hall, as vacancies were reported, they were posted
on the board, and members of NMU could indicate their willingness to
accept any of those vacancies ; that non-members (of NMU), where there
was a crowd of members in the hall, non-members were not even permitted
in the hall, but as vacancies were filled by members, and there were rela-
tively few members left , they would allow certain non-members to come
around and sit in the hall, and at that they were all, and what I think is
called the dispatching office.
If a job was posted and no member of the union indicated a desire to take
it, or at least state that he wanted it, or if there was no member of the union
available for that rating, or at all , then a non-member , in the order in
which they had been admitted into the hall , was permitted to take the job
on the following conditions-they said "conditions"-that he would consent
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to go aboard for one voyage, and at the end of the voyage he would report
back to the hall and advise the dispatcher that he was there.
Now, if he consented to that he was given a trip card, and went aboard
and got the job. At the end of that voyage, when the ship docked, the
patrolman and delegate would remind him, "You have got to go clown to the
.hall, if you are going to-sail again ," and he would go down to the hall, to the
dispatcher , and turn in his trip card.
The dispatcher would then post the job on the Bulletin Board to permit
members to indicate a desire for it. If members selected the job, then the
trip carder never went back to the ship. If no member wanted the job, or
if there was no member available, then the trip carder was allowed to go
back for another voyage, and it repeats itself in that process
McCloskey further creditably testified :
We told the union that we recognized from their point of view how they,
would have to prefer members over non-members and they acknowledged
that that was a true statement on our part , but we said that in our feeling,,
under the law, you just can't do that, that if a person applied to us and he,
was physically qualified , he had his government ticket say , as an A. B. or
whatever it is, and applied for a vacancy, that he had to be given equal
opportunities with members, otherwise you would be discriminating against
him because of non -membership rather than on account of membership.
We said , in our position it seemed to us that this was the reverse situa-
tion of-I think it was the Phelps-Dodge case where the Supreme Court
held-we outlined whatever decision it was and I may be wrong in the
name-but we outlined how the Supreme Court held that the failure to
employ was a violation of the law where it because of membership in a
union and back wages were due.
Mr. Miller ( NMU representative ) suggested that we could tell an applicant,
"Well we have no source of employment except through the union hall. Go l
down there."
He said, "In view of how you have described how the hiring hall works, we,
think that would violate the law."
Now, they did in their description, too, describe briefly the rotation system
which, as we understand it from their description, meant that if I went down
to the hall to try to work for the Texas Company I might not even be assigned'
to the Texas Company anyhow , even if I were a member . I would just take
my chances on the jobs that are made available
Q. In other words, an applicant , even a union member , applying through
the hall, cannot ask for a particular ship or a particular company, is that
correct?
A. He can ask for it but unless other people waive , who have gotten there
first and are awaiting assignment , he may not get it.
During the course of this conference McCarthy submitted to Texas a proposal
similar to the Brickle contract stating that NMU desired to negotiate with respect
thereto. The Texas representatives informed McCarthy that Texas had on two
occasions written Curran asking him with whom Texas should bargain concern-
ing the Great Lakes crew but that Curran had not replied to either letter. Mc-
Carthy then stated that he would see that Curran replied to the letters. The
Texas' representatives , in reply to an inquiry by McCarthy as to the status of
the Great Lakes negotiations , stated that Texas was observing all the provisions
of the 1947 contract save the provision regarding the hiring hall and as to that,
NATIONAL MARITIME UNION OF AMERICA 1005
Texas was observing the terms of its proposal of January 24. Discussion was
then had with respect to that clause. The representatives of NMU stated that
they had serious doubts about the acceptance by NMU of the proposed hiring-
hall clause but nonetheless they would consider it.
On May 14, Angus, the manager of the operational division of Texas' marine,
department, in company with three other officials of Texas, called on Curran and
asked him whether the threatened strike of the crewmen of the operators of
Great Lakes vessels would ultimately involve the employees of Texas. Curran
replied in the affirmative. Angus then, according to his credited testimony,
Pointed out to him (Curran) that we more or less had trouble in having
the union bargain with us and there was confusion between the different pro-
posals proposed to us and we thought it was not fair to the Texas Company
to have the union threaten a strike on our ships. The two ships, the Maine
and the Michigan, were on the lakes at the time, and we asked them if they
would be tied up at the first port they hit and they said, "Yes." We then
said that we would like to have them tied up at East Chicago if they are
going to be tied. He said, "We will tie them up in a refinery area."
Then there was some talk, or some remarks made about a lockout and we
laughed- that off and we asked Mr.- Curran if it was not a strike, and he
said, "Yes, it is a strike and I authorized it."
Angus also testified credibly that,
During the course of our conversation he said, "You can save your ships
if you will agree to operate those ships under the terms of the 1947 agree-
ment pending negotiations for a new 1948 agreement," and he said, "That
in a union council meeting there were certain members of that council," I
don't know who, "who wanted to hold the strike on the Great Lakes until
the time they got an actual 1948 contract" and he said that he had persuaded
this council to make this proposal to the operating companies that they
operate on the 1947 contract basis pending negotiations for a 1948 contract.
On May 14, the two ships of Texas that are involved in this proceeding were
under way on the Great Lakes and neither one was to reach port until Sunday,
May 16. That day, after reaching port, the crews of each boat struck. Up to
the time of the hearing neither boat has left port.
On May 18, Texas received the following letter (dated May 14) from Curran:
The Negotiating Committee for the National Maritime Union on the Lakes,
is composed of the following men :
William McCarthy, National Director. N. Y., Headquarters ; Josh Lawrence,
Director, on the Lakes; Henry E Brickle, Representative from S. S. Michi-
gan; Mr. Weiss, Representative from S. S Maine.
This Committee is set up for the purpose of conducting negotiations with
The Texas Company, to conclude a collective bargaining agreement, which
will be'subject to ratification with the membership.
Very truly yours,
JOSEPH CURRAN,
Chairman, National Negotiating Committee.
On May 19, Angus wrote Curran as follows :
On yesterday afternoon, May 18th, we received your letter dated May 14th
and postmarked May 17th, which apparently is in reply to our letters of
April 7th and 29th, in reference to authorized representatives of the National
Maritime Union for the purpose of collective bargaining for the unlicensed
personnel on our vessels on the Great Lakes ; namely, S. S. Maine and S. S.
Michigan. We believe a meeting should be held at the earliest convenient
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date. Would you. and/or the persons you have designated, advise us when
you can be available?
As you know, we have filed charges with the National Labor Relations Board
in respect to your demand covering employment. We did so in the view that
this provided the only practicable method of solving this problem, because
our difficulty in respect to this demand is due solely to the question of the
legality of "hiring hall" provisions. If they are illegal, the Company, of
course, could not agree to them ; but if they are legal, we do not believe that
we will have any trouble reaching an agreement with the Union upon this
question.
In the meantime we shall continue to observe the practices in respect to
employment which are indicated in our letter of January 24, 1945 to Josh
Lawrence, and which we gave to Bill McCarthy again on May 6 We under-
stand that these practices are substantially better from the Union's point
of view than any other proposal it has received
Copies of the Angus letter were sent to Lawrence, McCarthy, Brickle, and
Weiss
Under date of May 21, Curran wrote Angus as follows
Confirming our telephone conversation, we would like you to understand
the position of the union.
Certainly you will agree that, in our joint desire for smooth operation, it
is necessary for some agreement to be in effect while negotiations proceed for
a new agreement I would suggest, therefore, that you consider affixing
your signature to the memorandum which you took from my office, and which
I signed at your request, and then smooth operations can continue while
negotiations for a new agreement are in process.
Yours very truly,
JOSEPH CURRAN, Pi esldent.
The memorandum referred to in the above letter reads as follows :
It is agreed and understood between The Texas Company and the National
Maritime Union that the present collective bargaining agreement covering
the vessels of The Texas Company on the Great Lakes, shall continue in effect
in all its provisions, pending negotiations for a new agreement.
JOSEPH CURRAN, Pres. NMU.
At a meeting held on June 2, between representatives of NMU and Texas, con-
cerning the crews of Texas' deep sea vessels, the NMU representatives stated that
the proposed hiring-hall clause of Texas was unacceptable, not only with respect
to the deep-sea crews but also as to the Great Lakes crews. Then, according to
the credited testimony of McCloskey, the representatives of Texas,
Proposed as an alternative a clarification or revision or amendment of
Section, I think, 6 of Article I of the deep sea agreement.
That section provides that the union and the company on their respective
behalfs agree that there shall be no discrimination, coercion or intimidation
against any employees on account of membership or non-membership in a
union or on account of race, creed, color or national origin.
It further provides that if an employee commits any.such act he is subject
to discharge.
We asked the union to amend that provision or clarify it to apply it'equally
to applicants so that it would read that the company and the union on their
respective behalfs agree that there shall be no discrimination against any
employee or against any applicant for employment on account of membership
or non-membership in a labor union or on account of race, creed or national
origin, and so forth.
NATIONAL MARITIME UNION OF AMERICA 1007
' The union rejected that after about fifteen minutes' discussion on the
ground that it was just, as they put it, unrealistic to suggest that they would
treat applicants whether members or non-members alike in assigning them to
ships.
They said they would be pleased to agree that once a fellow was assigned
that we would take some obligation toward him even before he reported, such
as if he got hurt in a trolley car or something. We had a lot of discussion
whether he would be our employee or not. They said we are not asking you
for that, we know you are not going to do it, and so the net of it was that
they would not take our proposal as applied to applicants at the union hall
for jobs.
s • a « s s •
In respect to the Great Lakes, all that was said thereafter was-Mr. Stone
kept repeating he couldn't understand why we couldn't go along with the
arrangement they had made with another company under which they would
continue the contract in all of its provisions pending negotiations, and he
said, "All you have to do at any time is sign the proposal which Mr. Curran
gave Mr. Angus on May 14th and your ships will sail within the hour," and
on that he pointed out how in [August 19 1946, when we had a strike on
the deep sea over the hiring hall, which was settled by our agreement to
give them the hiring hall. he had gotten on the phone and called the different
ports and we were on the way within three hours, and he said, "I can do the
same here."
On June 4, the deep sea negotiating committees met again. At this meeting
an NMU representative stated that whatever agreement was reached with respect
to the deep sea crews should apply equally as well to the Great Lakes crews.
The Texas representative agreed to that suggestion. According to McCloskey's
credited testimony the NMU representative then stated,
That all the proposals we (Texas) had submitted as substitutes for the
hiring hall provisions were rejected and that they (NMU) couldn't settle
for less than the standard form of hiring hall clause which they had in the
Great Lakes contract and the standard form which they had in the ocean
contract, that they had unanimously rejected our proposal.
The parties met again on June 7 There Texas was told that the Standard
Oil of Indiana, herein called Standard, had entered into a contract with NMU
covering the unlicensed personnel on Standard's Great Lakes vessels. The NMU
representatives then stated that in the past Texas usually signed a contract
with NMU similar in all respects to the contract signed by Standard, and they
wanted to know if Texas would do the same this year. The Texas representa-
tives requested a copy of Standard's contract in order to examine the terms
thereof.
At a meeting held on the following day, June 8, Lawrence submitted to Texas
a copy of Standard's contract. The Texas representatives stated that Texas
would give serious consideration to the proposal and if it were legal to enter
into such a contract, Texas would do so.
At a meeting held on June 11, the Texas representatives stated that they did
not understand certain provisions of Standard's contract and inquired of the
representatives what these clauses meant. The NMU representatives then ex-
plained the meaning of the clauses. Like in the past meetings, the NMU rep-
resentatives stated that the hiring hall clause had to remain in any contract
executed. In fact, at this meeting they stated, "We have got to have a hiring
hall or your ships stay tied up." At the request of the Texas, the meeting was
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adjourned in order to allow the Texas officials to study in more detail Stand-
ard's contract. NMU was later informed that the terms of Standard's contract
were not acceptable to Texas. The parties held no further bargaining con-
ferences.
B. The refusal to bargain collectively with Cleveland Tankers, Inc., Lake Tankers
Corporation, and Great Lakes Transport Corporation
1. The appropriate unit with respect to Cleveland and representation by NMU
of a majority therein
With respect to Cleveland, the complaint alleged, the answer admitted, and
upon the entire record in the case the undersigned finds, that the unlicensed per-
sonnel employed by Cleveland on S S. Rocket, S. S. Comet, S. S Meteor, S S.
Edgewater, and on any other vessel owned and operated, or chartered and oper-
ated bareboat, by Cleveland when operating upon the Great Lakes or when being
transferred from the Great Lakes to an Atlantic or Gulf Coast port, constitute,
and at all times material herein did constitute , a unit appropriate for the pur-
poses of collective bargaining, within the meaning of Section 9 (b) of the Act.
The undersigned further. finds that the said unit insures to the said employees
of Cleveland the full benefit of their right to self-organization and collective
bargaining and otherwise effectuates the policies of the Act.
The complaint also alleged, the answer also admitted, and upon the entire
record in the case the undersigned also finds, that on August 21, 1947, and at
all times thereafter, NMU has been, and still is, the duly designated representa-
tive of all the employees of Cleveland in the aforesaid appropriate unit for the
purposes of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
2. The appropriate unit with respect to Lake Tankers and representation by NMU
of a majority therein
With respect to Lake Tankers, the complaint alleged, the answer admitted,
and upon the entire record in the case the undersigned finds, that the unlicensed
personnel employed by Lake Tankers on M. V. Martha E. Allen and on any other
vessel owned and operated, or chartered and operated bareboat, by Lake Tankers
when operating on the Great. Lakes or when being transferred from the Great
Lakes to an Atlantic or Gulf Coast port constitute, and at all times material
herein did constitute, a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act. The undersigned further finds
that the said unit insures to the said employees of Lake Tankers the full benefit
of their right to self-organization and collective bargaining and otherwise ef-
fectuates the policies of the Act.
The complaint also alleged, the answer also admitted, and upon the entire
record the undersigned finds, that on August 21, 1947, and at all times material
herein, NMU has been, and still is, the exclusive representative of all the em-
ployees of Lake Tankers in the aforesaid unit for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of employment, and other
conditions of employment.
3. The appropriate unit with respect to Great Lakes Tankers, and representation
by NMU of a majority therein
With respect to Great Lakes Transport, the complaint alleged, the answer
admitted, and upon the entire record in the case the undersigned finds, that to
NATIONAL MARITIME UNION OF AMERICA 1009
insure to the employees of Great Lakes Tankers the full benefit o f their right to
self-organization and collective bargaining , and otherwise to effectuate the poli-
cies of the Act, the unlicensed personnel employed by Great Lakes Transport on,
S. S. Pancil and upon any other vessel owned and operated , or chartered and
operated bareboat , by Great Lakes Transport when operating upon the Great
Lakes or when being transferred from the Great Lakes to an Atlantic or Gulf,
Coast Port constitute , and at all times material herein did constitute, a unit
appropriate for the purposes of collective bargaining , within the meaning of
Section 9 ( b) of the Act.
The complaint also alleged , the answer also admitted , and upon the entire
record in the Vase the undersigned also finds , that on August 21, 1947, and at all
times thereafter , NMU was , and still is, the exclusive representative of all the
employees of Great Lakes Transport in the aforesaid unit for the purposes of
collective bargaining with respect to rates of pay, wages , hours of employment,
and other conditions of employment.
4. The joint negotiations with Cleveland , Lake Tankers , and Great Lakes
Transport
Cleveland has had continuous contractual relations with NMU since 1938 and
Lake Tankers since 1939. The record does not disclose when Great Lakes Trans-
port first entered into contractual relations with NMU.
On February 21, 1947, Great Lakes Transport entered into a contract with
NMU, and on the same day the parties executed an amendment to the said
contract . Both agreements expired on January 19 , 1948. On March 24, 1947,
Cleveland and Lake Tankers executed contracts , and amendments thereto, iden-
tical to that entered into by Great Lakes Transport . These contracts , like those
of Texas and Great Lakes Transport , expired on January 19, 1948. All three
contracts contained hiring -hall clauses identical to that appearing in the Texas
contract
On November 18, the attorney representing Cleveland , Lake Tankers, and
Great Lakes Transport wrote NMU that the said companies had elected to termi-
nate the contracts on the expiration dates, January 19 , 1948, and that his letter
was the notification thereof, but , the attorney added, the companies were willing
to meet and negotiate a new contract , and suggested that the parties meet some-
time during the first week in December.
On November 19, Lawrence wrote Cleveland a letter identical to that sent by
him to Texas, which latter letter is discussed above The letter, in substance, is
a request to amend the then existing contract to provide upon the expiration of
the said contract for (1 ) a wage increase , ( 2) changes in working conditions in
certain departments , ( 3) vacation pay, and ( 4) elimination of the no-strike
clause. The letter continues with the statement that NMU was desirous of
retaining in the new agreement all other provisions of the said contract ; meaning
the retention , among others , of the hiring-hall clause. The letter concluded with
a request for a meeting on December 17.
The first negotiating meeting between Cleveland , Lake Tankers , Great Lakes
Transport , and N1IU took place on December 18. This joint meeting was not
unusual for it had been the practice since 1942 for Cleveland, Lake Tankers, and
Great Lakes Transport to negotiate jointly with NMU. Lawrence , the spokesman
for the NMU committee, opened the meeting by presenting the NMU's demands
for (1 ) a 25-percent wage increase , ( 2) changes in working conditions , ( 3) pay
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leave days, otherwise referred to in the record as vacation paid, (4) increases in
meal allowances, and (5) elimination of the no-strike clause. Lawrence added
that there were quite a few other demands NMU intended to submit, but those
demands had not as yet been approved for submission. Lawrence also stated that
NMU wanted to be released from all liability in case its members engaged in
unauthorized or in illegal strikes or engaged in any other illegal work stoppage.
The Companies' committee stated that the Companies were not willing to exe-
cute agreements without some assurances that the members of NMU would not
strike and that they wanted some protection against any illegal or unauthorized
strike and slowdown by members of NMU and therefore if they acquiesced in the
elimination of the no-strike clause they wanted to be in a position to hold NMU
financially liable for the illegal or unauthorized actions of its members.
The Companies' committee also stated that, in the opinion of their counsel, the
hiring hall clauses in the then existing contracts, as they now read, were repug-
nant to the Act and that, in order to retain the hiring-hall clauses, had to be written
to conform to the Act. Lawrence, on the other hand, stated that there was "nothing
illegal about the hiring hall inasmuch as our contract didn't specify that the men
who were sent aboard from the hall must be union men " Counsel for the Com-
panies replied that, to quote Captain Jonassen's credited testimony, "still didn't
make any difference, [because] the effect would be to discriminate when the men
were hired from the hall." After further discussion, it was suggested by the
operators that "a scheme might be devised whereby the operators, whenever a
replacement was needed, would first notify NMU to that effect and thereby giving
NMU members an advantage over other applicants." This suggestion, however,
was not acceptable to the NMU committee The meeting concluded after the
NMU committee stated that it would confer with counsel for NMU regarding the
revamping of the hiring-hall clause. Before leaving the conference, however, the
NMU committee stated that it would submit in about 2 weeks prior to the next
meeting to the above-mentioned three companies the proposals it desired included
in the new agreements.
On February 11, 1948, NMU forwarded to the three companies certain proposed
changes in the working rules. The letter that accompanied the proposals stated
that, while the submitted proposals were fairly complete there were other matters
which NMU would like to discuss with the Companies, but the subject matters of
the additional proposals could not then be submitted because they were still
being considered. The letter concluded with the statement that the submitted
proposals were in addition to those already discussed theretofore.
The parties conferred on February 27. Besides the committees, William P.
Price, an attorney, was present representing the Companies and Herman Rosen-
feld was the legal representative of NMU. The meeting was opened by Jonassen
who asked whether NMU had submitted all its proposals. Lawrence replied in
the affirmative. The main discussion then centered around wages and the hiring-
hall clause. The hiring-hall discussion, as epitomized by the credited testimony of
Jonassen, was as follows :
I think after Mr. Lawrence made the statement that he did that they then
began to go into a discussion of.the hiring hall, and Mr. Rosenfeld made quite
a speech in which he mentioned, in which he took the position that the hiring
hall was not illegal, and that the union would certainly want the hiring hall in
the contract, and he mentioned the fact that no one had ever been able to
prove that it was illegal and therefore why shouldn't we go along and give
them, that provision in the contract. He then mentioned the fact that one of
NATIONAL MARITIME UNION OF AMERICA 1011
the reasons lie did not think it was illegal was because we had no agree-
ment with the union that said that they would only send union men aboard
the ships.
Then Mr. Price, answering Mr Rosenfeld said, well, that might all be very
true, but nevertheless, as a practical matter it would be very difficult for
the union not to discriminate in sending men aboard the ships from their hall.
Then the matter was discussed back and forth between Mr Rosenfeld and
Mr. Price, and Mr. Price again mentioned the fact that the operators might
go along on some sort of a proposition, whereby the operators would notify
the union at any time they needed new men, but the union again were very
decided in their statement that that wouldn't suit them at all.
Mr. Price then made the suggestion that possibly we could go along on
some form of agreement, whereby the union would register both union
and non-union men and send the operators a list of them so that we could
sort of police the thing and see that no discrimination took place, and maybe
we could work out something like that, with, of course, the proviso that no
man after he was once sent aboard one of those ships under that proviso
could be kicked off the vessel, either for belonging to the union or for not
belonging to the union.
Q. On the list that was to be prepared, how were the men to be selected?
A. They were to he selected on a rotary system. The first man in was to
get the job, first in.
Trial Examiner MYERS. You mean the first man who applied?
The WITlESs. The first man who applied, whether he was the first man
on the list or the second man on the list, regardless of whether they were
union men or not.
After Rosenfeld stated that he would consider Price's suggestions and then would
advise the Companies and Price of his decision, the parties took up for con-
sideration the other NMU proposals. No definite agreement was reached on
any proposal. The meeting concluded with the understanding that the parties
would meet again at a time to be fixed.
• On March 18, Lawrence wrote Price asking him to submit in writing, the
Companies' suggested revision of the hiring-hall clause. Lawrence added that
his committee would like to confer as soon as possible with the Companies' rep-
resentatives. On March 28, Price replied suggesting that the parties include in
the contract, in lieu of the then existing hiring-hall clause, a clause similar
to that adopted by the Employing Lithographers Association of San Francisco,
which reads as follows :
The Employing Lithographers Association of San Francisco agrees to
advise the Amalgamated Lithographers of America Local No. 17's office when
in need of help.
Price also suggested that the parties meet and confer on April 2.
At the April 2 meeting, practically the same persons, including Price and
Rosenfeld, were present as attended the previous meeting. According to the
credited testimony of Jonassen, the following took place at the meeting :
Mr. Price opened that meeting by referring back to the last meeting, at
which it had been agreed that the union was to notify us at this meeting
of any contracts or agreements or negotiations that had been made, and
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Price asked if they had any offers or any contracts signed since our last
meeting, and the union stated that they had not negotiated any contracts,
that they had had several meetings, but that at none of them had any
agreement been reached on the points in question.
There was some discussion then between Mr. Price and Mr Rosenfeld
again about the hiring hall, and particularly about the provision that Mr.
Price had sent in his letter to Josh Lawrence, and apparently that was not
satisfactory to the union.
Then Mr. Young (NMU's vice-president) asked us what our position was
with regards to the 25 percent increase and other matters which had been
under discussion, and I said to Mr. Young that if we did offer the union
even a 15 or a 20 percent increase, but without the hiring hall, would you
fellows make a contract with us. Mr. Young shook his head and said no, that
he didn't think so
Then Mr. Rosenfeld said that he was pretty well convinced that these three
companies were not going to sign any contract in which a hiring hall was
included, and that probably the thing would have to be left alone for a while,
and he mentioned the fact that these things were going to cone up on June
15 on both the east and the west coast, and that at that time somebody would
either have to put up or shut up, and both Mr. Rosenfeld and Mr. McCormick-
no, both Mr. Young and Mr McCormick (NMU's Chicago port patrolman)
made the statement several times that the union hiring hall was the very life
blood of the union, and that they were just going to have to have it, because
that was the only way they could control their membership and preserve the
union.
I thought they discussed the matter rather freely. As a matter of fact, we
asked him (McCormick ) specific questions as to the way the hiring was being
done, and they ( McCormick and Young ) were very frank about the fact that
the hiring hall was-that naturally , they gave the union men preference
whenever possible , because that is what they had a union for.
Q. Did McCormick make any statement concerning shipping nonunion men
through the NMU hiring hall?
A. Well, I cannot say specifically that the entire question of the hiring hall
was discussed , and it was admitted , of course, that the non -union men were
hired from the hall when the union men were not available , but there wasn't
anything specific about it, it was just general conversation.
Q How about after the non-union men were hired on the ship ? What, if
any, discussion was had, or was any statement made by McCormick or Young
with respect to those men after they had been placed on ships, as to what
would happen to them?
A. The only thing that I can remember that was said on that was, "Well,
those fellows are given a chance to loin the union." Now, I don't recall
whether anything further was said on that point.
Jonassen further testified , and the undersigned finds, that Rosenfeld at this
meeting stated that the suggestion of Price that they adopt a clause similar to
that used in the Lithographers ' contract was unacceptable to NMU. Rosenfeld
requested that an agreement be executed extending for a definite period the last
contract , embodying therein all the prgyisions of tile said contract , including the
'hiring-hall clause. The Companies refused to do so an(1 the meeting , After a short
NATIONAL MARITIME UNION OF AMERICA 1013
discussion on other matters, concluded. There have been no other bargaining
conferences between the parties.
On May 13, the unlicensed personnel of the Comet (owned and operated by
Cleveland) struck Within the next few clays the unlicensed personnel of the
Great Lakes vessels of Cleveland, Lake Tankers, and Great Lakes Transport, and
Texas also struck. These boats, up to the time of the hearing, have been laid
up at their respective poits.
Although the Companies had on several occasions attempted to induce NMU
to abondon the strike, its officials refused to do so unless and until the Com-
panies signed contracts embodying NMU's standard form of hiring-hall clause.
Regarding a telephone conversation he had with Curran on May 14, Jonassen
testified credibly as follows :
He (Curran) said, `Hello, Skipper," he said, "I understand you have been
putting in a call for me." I said, "Yes." I said, "I would like to know
whether you are acquainted with the fact that our steamer Comet was struck
last night " I said, "The reason I am calling you is because I have heard an
awful lot of rumors to the effect that the Commie element on the Great Lakes
are pulling a strike which possibly you or some of your other national officers
are not in favor of, and I wanted to know where we stood on that thing."
Curran said, "Don't believe all of that stuff," he said, "This strike is being
pulled by us, and I have been busy sending telegrams around to these crews
telling them that if they ever want a contract from you fellows that they
had better strike and get some sense into your head, because that is the only
way they would ever get it."
He said, "Where did you get the idea that the hiring hall is illegal, in the
first place?" I said, "Our attorney and the attorneys of all the other com-
panies I have ever talked to are in great agreement on the fact that the hiring
hall is illegal, and that being the case we certainly cannot sign an agreement
with you embodying the hiring hall "
He said, "Oh, you are all crazy," and he said, "You are paying your attorney
too damn much money, because the hiring hall is not illegal, and everybody
knows it Anyhow," he says, "if you want your boat running, all you have to
do is to scribble down on a piece of paper something to the effect that while
negotiations are in progress for a new contract all the provisions of the old
contract will be in full force and effect, and your ships will sail in no time."
Later that day, May 14, Lawrence, in a telephone conversation with Jonassen,
said that the strike would be called off if the Companies would agree to keep,
while negotiations for a new contract were pending , the old contract "in full
force and effect, embodying specifically the provisions of the hiring hall" clause
For a few hours on or about May 15, NMU picket lines were on the docks
where some of the struck vessels were anchored. Placards were also placed
near the struck vessels, some of which read "We demand a hiring hall, NMU."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, above, occurring in
connection with the operations of the Companies 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, and have led, to labor disputes
burdening and obstructing commerce and the free flow of commerce.
798767-49-vol 78 65
.1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. ANALYSIS, CONCLUSIONS, AND REMEDY
The testimony and the voluminous exhibits making up this record disclose a
concerted effort on the part of NMU and other respondents named herein to defeat
the fundamental purposes of the Act
The Act now obligates the chosen representative of a majority of the employees
in an appropriate unit to bargain in good faith for all the employees in the said
unit with the employer with respect to all matters which affect employees' wages,
hours of employment, working conditions, and other conditions of employment.
Collective bargaining process is initially one of give and take in which normally
each party yields on certain demands and positions in order to gain assent on
others, thereby achieving a satisfactory compromise. The adamant positions
taken by the respondents here involved at their conferences with the Companies,
however, did not evidence a bona fide attempt to come to any agreement but, on
the contrary, evidenced a fixed intention not to yield and was well calculated
to prevent any agreement from being reached. The evidence clearly shows that
this case falls within the familiar pattern of those cases under the Wagner Act
in which an employer had entered into negotiations with a mind closed to per-
suasion or had insisted upon a union's compliance with conditions precedent to
bargain.
In that line of cases, the Board and the Courts have been uniformly in ac-
cord with the doctrine that it was the duty of an employer to enter into dis-
cussions with respect to collective bargaining "with an open and fair mind, and
a sincere purpose to find a basis of agreement touching wages and hours, and
conditions of employment ...." 1 The conduct of the respondents, and each of
them, in this case fell far short of this standard.
In his unsworn statement, on June 8, 1948, before the Board of Inquiry ap-
pointed by President Truman, pursuant to Section 206 of the Act, Curran stated,
regarding the hiring hall and the mechanics with respect thereto, as follows :
I said before, and I say again, and I say it without any truculence or
anything like that, that on the question of employment, that we make the
same statement we made, that it is not negotiable. Let me tell you just
slightly. They (the employers) took an adamant position that they had
their staff of lawyers come in with a signed statement that this was illegal.
.So we took the position they were not competent, and neither were our
attorneys competent to make a finding, that a finding had to be made by the
courts before either side's attorneys could say-this is illegal, or that is
illegal, and that what they should have to do is leave that alone until such
time as the court of proper jurisprudence rules on it, and says whether it is
legal or illegal.
We went further. We told them (the employers) -we will give you a clause
in the agreement that will state as follows : That in the event a court of
proper jurisdiction proves any clause of this agreement invalid, that the
union agrees to meet with the operators immediately for the purpose of
renegotiation. They said no, they wanted some kind of guarantee of in-
demnification. They wanted the union to indemnify them against anything-
rain on the roof, and everything. These things are fantastic.
* * * * * * *
1 Globe Cotton Mills v . N L R. B., 103 F . (2d) til, 94 (C C. A. 5). See also N L. R. B.
v. Whittier Mills Co., 111 F (2d), 474 (C C. A. 5) ; N. L. R. B. v Reed d Prince Mfg. Co.,
118 F. (2d) 874 (C C A. 1), cert. den. 313 U. S. 595; N. L. R. B. v. Athens Mfg. Co., 161 F.
(2d) 8 (C C. A. 5).
NATIONAL MARITIME UNION OF AMERICA 1015
They have raised questions about discrimination. Hundreds of men that
don't belong to the unions ship through our halls, and in the agreement there
are clauses that say a man may remain in the employment of the company
as long as that employment is satisfactory to the company and the man in-
volved.
They raise the question that we have a shipping rule in which men have
been pulled off after a voyage. We have unemployment problems, and we
give a (non-union) man a card when he comes off the job, telling him that
we can't put you ahead of men who have been in this industry years and
years, have experience and all, but we will do this for you-in order to give
you work we will allow you to ship on a job on the understanding if there
are (union) men available when that vessel returns from a 30-day voyage,
you will have to stand by and see if a union man is available, and if not, you
will continue.
The operators place a lot of stock in that, but since that rule has been in
effect for the last 3 or 4 years, not one operator I know of has in writing ever
complained about it. Not one. So if that was a fault, the union has always
proved amenable to sitting down and discussing these things, and has never
been asked to, and so we went ahead with the rule. Now, if they raise it as
one of the reasons that there is discrimination.
Hundreds of men are right now aboard vessels that are not members of
the union. Right now The union offices are always open to men to apply
for jobs. But this union, like any employer, tells a man-when there is no
work, certainly we are not going to take the position that this industry should
have :00,000 seamen standing by when there are jobs for 35,000, and we
certainly shouldn't take the position that the man who has spent his life, has
gone through the war, and help build the conditions in this industry, that
he should be replaced by any man walking down the street. At least he
should be given the opportunity He is sailing steady, and this man from
the woods, every time lie gets hungry-I will get down to the dock and walk
aboard a slop and get a job.
s a + * s r
Chairman SHULMAN. You say you give a trip card to a non-union member?
Mr. CURRAN. Any industry in the country. It is known as a temporary
worker.
Chairman SHULAMAN You don't give him a trip card, do you, if there are
men available, or seniority men available?
Mr. CURRAN. No ; we don't.
Chairman SHULMAN. Which of the two is it?
Mr. CURRAN. Seniority. Now, a man who has been in the industry for a
long period of time-I don't think you would ask us-we took a position a
few years ago that we do not run a racket. We will not take men and issue
them book in the union when we can't provide them with a job. That is a
racket. So we don't, and where there are hundreds of men available for a
job, we don't say to a guy walking in off the street, come on in and we will
give you a job and put him ahead of the men in there. Whether they are
union or not, they have seniority, and certainly everybody will agree that
seniority and experience goes with it, and are certainly something that any
stable employment depends on.
Chairman SHULMAN What I wanted to get clear was whether in sending
men you rely on seniority primarily, or union membership?
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. CURRAN . Well, within our union seniority is a factor , but we also rely
upon union membership , certainly.
* * * * * *
The record in the instant proceeding clearly indicates that the hiring halls
maintained by NMU are for members and non -members. The former , however,
are given first chance to take any job that is offered. If no union member is
available when the job is called or posted in the hiring hall or if a union member
is available but declines the job, the first available person is then assigned to
the job. Any non -union member so assigned is subject to replacement by a
union member at the end of the first round trip voyage. In short, the hiring
hall is maintained mainly for NMU members in good standing for NMU members
are given preference , and non -NMU members may obtain jobs through the NMU
hiring halls only when NMU members are not available or when NMU members
declined the job.
As found above, the contract between NMU and the individual Companies
contain a hiring-hall clause. This clause is deeply imbedded in the practices
of NMU. This clause is clearly repugnant to the Act . NMU was fully aware
that the Act now prohibits the hiring-hall clause, as written into the contracts
received in evidence in the instant case, for throughout the negotiations looking
toward an extension of the 1947 contracts or for contracts replacing those
expiring in January and February of this year , the Pilot , the official NMU
organ, carried on a running campaign informing NMU members that the hiring
hall was the "life blood" of the organization and therefore NMU and its mem-
bers must insist upon the retention of the hiring-hall clause, despite the fact
that, at some later date, it might be adjudicated by the Courts that the NMU
hiring-hall practices are violative of the Act. The members were asked to ig-
nore the Act and do everything in their power to retain the hiring hall. Many
articles appearing in the Pilot, over the name of the individual Respondents herein,
are to that effect. In fact, in almost each issue of the Pilot received in evidence,
and there are many of them, articles appeared calling upon the members of
NMU to strike, if necessary, in order to retain the hiring hall. On or about
May 13, telegrams were sent over name of some of the individual respondents
instructing the unlicensed crews of the boats here involved to strike because, as
the telegrams stated, the Companies refused to execute contracts containing a
hiring-hall clause. The evidence clearly shows that immediately upon receipt of
the telegrams the said crews did strike, and they were still on strike at the time
the hearing herein opened.
The actions of NMU and the individual respondents as summarized in this
report plainly aer the antithesis of an intention to comply with the obligations
imposed by the Act to enter into discussions with an open and fair mind, and
a sincere purpose to find a basis of agreement Each time the Companies sug-
gested a clause that might not be repugnant to the Act but which changed the
wording of NMU's standard hiring-hall clause, NMU's representatives immedi-
ately rejected the suggestion. The actions of the respondents herein show they
were giving the Companies, to use the words of the Court in N L. R B. v.
Athens Manufacturizng Co., supra, "a run around while purporting to be meeting
with" the Companies for the purposes of collective bargaining.
The matter of selection of employees pursuant to NMU hiring -hall practices
places an employer in a position of possibly violating Section 8 (a) (3) of the
Act, for an employer under that practice may not select whomever he pleases, nor
NATIONAL MARITIME UNION OF AMERICA 1017
is he able to obtain employees from whatever sources he deems best. He must
fill the job with the person sent by NMU, if that person meets the minimum re-
quirements of the employer. The employer is forbidden to hire an applicant who
applies to him for a job and who meets the employer's minimum requirements.
The Act, as amended, has not made any change in the rule of Phelps Dodge
Corp. v. N. L. R. B.,2 which held that discrimination in hire against union men
was an unfair labor practice and that the Board might order the "instatement"
with back pay of men discriminatorily refused employment. That rule is now
clearly extended to cover discriminatiton against applicants for employment be-
cause of their non-union activities, protected by Section 7 of the Act 8 If an em-
ployer refused to hire a person because he was not sent to the employer by NMU
that employer. would surely be violating Section 8 (a) (3) of the Act. Never-
theless that was what NMU and the individual respondents insisted that the
Companies here do.
In view of what has been found above, it is clear that NMU and the individual
respondents have violated, and are violating, Section 8 (b) (2) of the Act. One
of the announced purposes of NMU in the bargaining negotiations if not its chief
purpose, was to preserve the hiring hall or in other words to preserve its "life
blood." The union shop permitted, under certain conditions, by Section 8 (a)
(3) of the Act, was spurned by NMU and the individual respondents as being, in
effect, an "open shop." The preservation of their exclusive right was enjoined on
employers with stubborn insistence in all the meetings between NMU and the
Companies. Strikes were called for the purpose of preserving the hiring-hall
status.
It is well established by judicial, as well as Board, decisions under the Wagner
Act that employers violate their duty to bargain when they refuse to enter into a
contract, or to negotiate for that purpose, unless the union will agree to pro-
visions inconsistent with the public policy of the Wagner Act even though their
demands would not have compelled any violation of the law by the union or
employees." These decisions are also applicable to the present case.
2313 U. S 177.
3 See Sen Report No 105, 80th Congress , 1st Session , pp 6-7 ; Sen. Report No 256,
p. 34 ; Cong Rec v 93, No 106, p 6000; Cong. Rec, v. 93, No. 104. p. 6463.
IN. L. R B. v. Winona Textile Mills, 160 Fed. 201 F (2d) (C. C. A. 8) (withdrawal of
closed-shop demand ) ; N L R B. v. Reed & Prince Mfg Co., 118 F. (2d) 874 (C. C. A. 1),
cert. den 313 U. S 595 ( promise not to request closed shop or check-off ) ; Hartsell Mills
Co v. N. L. R B., 111 F. (2d) 291 (C C. A 4) (withdrawal of charge filed with N. L. R. B) ,
Stewart Die Casting Corp. v. N. L. R . B., 114 F. ( 2d) 849 , cert. den. 312 U. S. 680 ( recogni-
tion of majority union as representative only of employees who were union members) ;
McQuay-Norris Mfg. Co. v. N. L. R. B, 116 F. ( 2d) 748 (C C. A. 7), modified on rehearing
119 F. (2d) 1009, cert. den. 313 U. S. 565; N. L R. B. v. Louisville Refining Co., 102 F. (2d)
678 (C. C A 6) (negotiation with local, but not with national, union) ; N. L. R. B. v. George
Pilling & Co., 119 F. (2d) 32 (C. C. A 3 ) ( organization by the union of the employer's com-
petitors in the industry ) ; Matter of Kellogg Switchboard d Supply Co ., 28 N. L . R B. 847
(termination of strike caused by employer 's unfair labor practices ) ; Matter of Scripto Man-
ufacturing Co., 36 N. L. R. B. 411 ( union incorporation or giving bond ) ; Reliance Mfg
Company, 28 N. L R. B. 1051 ( removal of picket ) ; Golden Turkey Mining Co., 34
N L. R B 760 ( withdrawal of charges).
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Obviously, a closed shop is no longer a bargainable.issue. Under Section 8 (a)
(3), at most the employer can only agree to a "union-shop" Proposals by the
Companies of a union-shop clause in lieu of the hiring-hall clause was summarily
rejected by NMU One of the objects that a hiring-hall clause was intended to
accomplish was the preservation of preference to NMU members in obtaining
jobs. Clearly, NMU in this respect was violating Section 8 (b) (3) of the Act
by attempting , in effect, to force upon the Companies a closed shop.' Moreover,
advancement of proposals under the circumstances outlined above, even though
made in the traditional forum of bargaining negotiations, is not collective bar-
gaining as is required by the Act'
The statutory phrase makes it an unfair labor practice for a labor organiza-
tion "to cause or attempt to cause" an employer to discriminate `in regard to
hire or tenure of employment or any term or condition of employment to en-
courage or discourage membership in and labor organization . . Certainly
NMU was "attempting to cause" the Companies through maintenance of the
hiring hall to discriminate against employees who were not union members, or
who might wish to discontinue their membership in the union , or applicants for
employment who were not members of the union As the Board stated in Matter
of Ford Motor Company, 31 N. L. It. B. 994, with respect to the Wagner Act, and
which concept is clearly applicable under the present Act, that actions violative
of the Act exercise "a coercive effect not only upon the immediate victim, but
upon all present or future employees. . . .
Under the-circumstances the undersigned finds that the aforesaid actions re-
flect a determination generally to restrain and coerce the employees, as well as
future employees, of the Companies in the exercise of the rights guaranteed in
Section 7 of the Act and consequently each of the respondents herein, by such
actions, has also violated Section 8 (b) (1) (A) of the Act.
Upon the entire record in the case, as epitomized above, the undersigned is
convinced, and finds, that NMU refused to bargain collectively with Texas on
December 19, 1947, and at all times thereafter ; that NMU refused to bargain
collectively with Cleveland, Lake Tankers, and Great Lakes Transport on De-
cember 18, 1947, and at all times thereafter. The above refusals to bargain col-
lectively occurred despite the fact NMU was requested, as the duly designated
representative of all the employees in the appropriate units, to so bargain by
the said companies. The undersigned further finds that NMU by refusing to
bargain collectively, as aforesaid, coupled with its determination to retain the
hiring-ball clause in all contracts with the Companies, restrained and coerced,
and is restraining and coercing, the employees in the respective appropriate units
in the exercise of the rights guaranteed in Section 7 of the Act thereby violating
Section 8 (b) (3) of the Act. The undersigned further finds that NMU and the
See Senate Report No 105, p 11, 80th Congress, 1st session, where it is stated "In
the maritime industry and to a large extent in the construction industry union hiring
balls now provide the only method of securing employment This not only permits unions
holding such monopolies over jobs to exact excessive fees but it deprives management of
:any real choice of the men it hires "
° It is evident that Section 8 (b) (3) of the Act was intended to impose on labor
organizations "the same" duty to bargain which is imposed on employers by Section
8 (a) (5) and which had been imposed upon employees by Section 8 (5) of the Wagner
Act. Senate Rpt No. 105, p. 22, 80th Cong 1st Sess , Conf. Rpt. No 510, pp. 41, 43,
80th Cong., 1st Sess Decisions of the Board and of the Courts under Section 8 (5) of
the Wagner Act, therefore may be regarded as controlling authority as to the type of
conduct which meets the standard of good faith collective bargaining under Section 8
,{b) (3).
NATIONAL MARITIME UNION OF AMERICA 1019
other respondents by their acts and conducts, as revealed by the entire record
in this case, as summarized here, have violated, and are violating, Section 8'
tb) (1) (A) and 8 (b) (2) of the Act.
The undersigned further finds Joseph Curran, Jack Lawreiisou, Josh Lawrence,
Chester Young, Harold McCormick, Michael :,McBride, and Charles Monroe are,
and during the times material herein have been, the duly designated agents of
NMU and that they, and each of them, (1) demanded and insisted that
each of the Companies execute collective bargaining contracts with NMU cou-
taining the NMU standard form of hiring-hall clause and (2) demanded and
insisted that the Companies execute agreements extending the terms of the
then existing contracts between NMU and each of the Companies, containing
the NMU's standard form of hiring-hall clause. Because of the refusals of the
Companies to comply with the aforesaid demands, set forth in (1) and (2)
above, and in order to compel the Companies to comply with the said demands,
the said individual respondents, and each of them, since on or about May 13,
1948, directed, instigated, inspired, induced, and encouraged the employees of
the Companies to engage in a strike and not to sail the Companies' Great Lakes
vessels, and they, and each of them, also approved and ratified the strike action
taken by the said employees.
There remains to be discussed the request of counsel for Cleveland, Lake
Tankers, and Great Lakes Transport that the Board, as part of the appropriate
remedy, pursuant to Section 10 (c) of the Act, award damages in favor of Cleve-
land, Lake Tankers, and Great Lakes Transport and against the respondents
for the financial losses sustained by the said companies due to illegal strikes
engaged in by the employees of the said Companies at the instigation, direction,
and approval of the respondents. Counsel for the Companies has submitted a
brief in support of his contention. The undersigned has read it with great care
and has carefully examined the legal authorities cited and quoted therein and is
now of the opinion that it was never the intention of the Congress to give the
Board the power to assess money damages in cases like the instant one That the
strikes referred to herein had for their sole purposes the forcing of the Com-
panies to do an act for which they may be penalized is beyond doubt and the under-
signed so finds.' Situations such as this can be nothing but destructive. They
are matters of deep concern, but the Board is powerless to assess damages in
matters of this kind.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. National Maritime Union of America, affiliated with Congress of Industrial
Organizations, is a labor organization, within the meaning of Section 2 (5) of the
Act.
2. Joseph Curran, Jack Lawrenson, Josh Lawrence, Chester Young, Harold Mc-
Cormick, Michael McBride, and Charles Monroe are, and during all the times
material herein were, the duly authorized agents of the National Maritime Union
of America for the purposes of collective bargaining with Companies herein with
respect-to pay, wages, hours of employment, and other conditions of employment.
3. The-unlicensed personnel employed by The Texas Company on its vessels S S.
Maine and S. S. Michigan, and upon any other vessels owned and operated, or
4 See Matter of The American News Company , Inc., 55 N L R . B. 1302.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chartered and operated bareboat, by Texas when operating upon the Great Lakes
or when being transferred from the Great Lakes to an Atlantic or Gulf Coast
port, constitute, and at all times material herein did constitute, a unit appro-
priate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
4. The unlicensed personnel employed by Cleveland Tankers, Inc., on its vessels
S. S. Rocket, S. S. Comet, S. S Meteor, S. S. Edgewater, and upon any other vessels
owned and operated, or chartered and operated, by Cleveland when operating upon
the Great Lakes or when being transferred from the Great Lakes to an Atlantic
or Gulf Coast port, constitute, and at all times material herein did constitute,
a unit appropriate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act.
5. The unlicensed personnel employed by Lake Tankers Corporation on its vessel
M V. Martha E. Allen, and upon any other vessels owned and operated, or chart-
ered and operated, by Cleveland when operating upon the Great Lakes or when
being transferred from the Great Lakes to an Atlantic or Gulf Coast port, con-
stitute, and at all times material herein did constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section 9 (b) of
the Act.
6. The unlicensed personnel employed by Great Lakes Transport Corporation
on its vessel Pancil, and upon any other vessels owned and operated, or chartered
and operated, by Cleveland when operating upon the Great Lakes or when being
transferred from the Great Lakes to an Atlantic or Cult Coast port, constitute,
and at all times material herein did constitute, a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the Act.
7. National Maritime Union of America was on August 21, 1947, and at all times
thereafter has been, and now is, the exclusive representative of all the employees
in the respective appropriate units set out in paragraphs 3, 4, 5, and 6 hereof for
the purposes of collective bargaining, within the meaning of Section 9 (a) of the
Act.
8 By refusing on December 18, 1947, and at all times thereafter, to bargain
collectively with Cleveland, Lake Tankers, and Great Lakes Transport, and by
refusing on December 19, 1947, and at all times thereafter to bargain collectively
with Texas, as the exclusive representative of the employees in the aforesaid
appropriate units with the employers on behalf of those employees, the respondent
NMU has engaged in, and is engaging in, unfair labor practices, within the meaning
of Section 8 (b) (3) of the Act.
9. By attempting to impose, and imposing upon, the Companies' collective bar-
gaining contracts containing a hiring-hall clause which is repugnant to the Act,
the respondents, and each of them, have attempted to cause the Companies, and
are attempting to cause the Companies, to discriminate against their employees
in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
10. The aforesaid unfair labor practices are unfair labor practices, within the
meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends the following :
1. National Maritime Union of America, affiliated with the Congress of
Industrial Organizations, its officers, representatives, and agents, shall:
a. Cease and desist from :
NATIONAL MARITIME UNION OF AMERICA - • 1021
(1) Refusing to bargain collectively in good faith as the exclusive representa-
tive of all the employees in the respective units hereinabove found to be ap-
propriate for such purposes with the respective employer of the employees.
(2) Requiring or instructing or inducing its representatives to require that
employers'execute contracts which expressly or by implication make membership
in, or approval by, NMU a condition of hiring or continued employment, except
in accordance with the provisos in Section 8 (a) (3) of the Act.
(3) Requiring that employers agree to secure their respective unlicensed
personnel through the medium of the hiring halls maintained and operated by
NMU.
(4) Causing or attempting to cause employers to discriminate in any manner
against their respective employees in violation of Section 8 (a) (3) of the Act,
particularly by requiring employers to execute collective bargaining contracts
containing the NMU's standard form of hiring-hall clause.
(5) Restraining or coercing the employees of the Companies in exercise of the
rights guaranteed in Section 7 of the Act, and particularly by attempting to
impose, or imposing, upon employees of the Companies any condition of em-
ployment requiring said employees, as a condition of employment, to obtain their
employment through the medium of the NMU's hiring halls.
b. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(1) Upon request, bargain collectively in good faith as the exclusive repre-
sentative of the employees in the units hereinabove set out, with the Companies,
and if an understanding is reached, embody such understanding in a signed
agreement ;
(2) Post immediately in conspicuous places at the meeting halls, hiring halls,
and offices of NMU and maintain for a period of at least sixty (60) consecutive
days, copies of the notice attached hereto and marked "Appendix A." The notices
shall be signed by a duly authorized officer of NMU.
(3) Notify the Regional Director for the Thirteenth Region (Chicago, Illinois),
in writing within ten (10) days of the receipt of this Intermediate Report what
steps NMU has taken to comply therewith..
2. That Joseph Curran, Jack Lawrenson, Josh Lawrence, Chester Young,
Harold McCormick, Michael McBride, and Charles Monroe, and each of them, and
their respective agents, successors, and assigns, shall:
a. Cease and desist from
(1) Requiring that employers execute contracts which expressly or by implica-
tion make membership in, or approval by, NMU a condition of hiring or continued
employment, except in accordance with the provisos in Section 8 (a) (3) of the
Act.
(2) Requiring employers to agree to secure their respective unlicensed per-
sonnel through the medium of the hiring halls maintained and operated by NMU.
(3) Causing , or attempting to cause, employers to discriminate in any manner
against their respective employees in violation of Section 8 (a) (3) of the Act,
particularly by requiring employers to execute collective bargaining contracts
containing the NMU's standard form of hiring-hall clauses.
(5) Restraining and coercing the employees of the Companies in the exercise
of the rights guaranteed in Section 7 of the Act, and particularly by attempting
to impose, or imposing, upon employees of the Companies any condition of em-
ployment requiring said employees, as a condition of employment, to obtain their
employment through the medium of the NMU 's hiring halls.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act.
(1) Post immediately in conspicuous places at the meeting halls, hiring halls,
and offices of NMU and maintain for a period of at least sixty (60) consecutive
days copies of the notice attached hereto and marked "Appendix B." The notices
shall be signed by Curran, Lawrenson, Lawrence, Young, McCormick, McBride
and Monroe.
(2) Each of the above-named individual respondents shall notify the Regional
Director for the Thirteenth Region (Chicago, Illinois), in writing within ten
(10) days from the receipt of this Intermediate Report what steps he has taken to
comply therewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt. of this Intermediate Report, the respondents notify the said
Regional Director in writing that they will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
said respondents to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22. 1947, any party may, within
twenty (20) days from the date of service of the order transferring the case to
the Board, pursuant to Section 203 45 of said Rules and Regulations, file with
the Board, Rochambeau Building, Washington 25, D. C., an original and six
copies of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding (including rulings upon
all motions or objections) as .he relies upon, together with the original and six
copies of a brief in support thereof ; and any party may, within the same period,
file an original and six copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Proof of service on the other parties of all papers filed with the Board shall
be promptly made as required,by Section 203.85 As further provided in said
Section 203.56, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203 49 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions
and order, and all objections and exceptions thereto shall be deemed waived
for all purposes.
Dated June 21, 1948.
HOWARD MYERS,
Trial Examiner.
APPENDIX A
TO ALL OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS OF THE
NATIONAL MARITIME UNION OF AMERICA
Pursuant to the recommendations, of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the Labor Manage-
ment Act of 1947, we hereby notify you that :
WE WILL NOT refuse to bargain collectively in good faith as the exclusive
representative of the employees in the appropriate units found in the Inter-
NATIONAL MARITIME UNION OF AMERICA 1023
mediate Report of the Trial Examiner in Cases Nos. 13-CB-19, 13-CB-20,
13-CB-21, and 13-CB-22 with The Texas Company, Cleveland Tankers, Inc.,
Lake Tankers Corporation, and Great Lakes Transport Corporation, re-
spectively, with respect to rates of pay, wages, hours of employment, and
other conditions of eniploynient in such units ;
WE WILL NOT require, instruct, or induce our representatives or agents
to require that employers execute contracts which expressly, or by implica-
tion, make membership in, or approval by, NMU a condition of hiring or of
continued employment, except in accordance with the provisos in Section 8
(a) (3) of the aforesaid Act;
WE WILL NOT require that employers to agree to secure their respective
unlicensed personnel through our hiring halls;
WE WILL NOT cause, or attempt to cause, employers to discriminate in any
manner against their respective employees in violation of Section 8 (a) (3)
of the aforesaid Act, particularly by requiring employers to execute collec-
tive bargain contracts containing our standard form of hiring-hall clause;
WE WILL NOT restrain or coerce the employees of The Texas Company,
Cleveland Tankers, Inc., Lake Tankers Corporation, and Great Lakes
Transport Corporation in the exercise of the rights guaranteed in Section 7
of the Act, and particularly by attempting to impose, or imposing, upon the
employees of the aforesaid companies any condition of employment requir-
ing said employees, as a condition of employment, to obtain their employ-
ment through our hiring halls.
NATIONAL MARITIME UNION OF AMERICA
By -----------------------------------------
(Representative ) (Title)
Dated --------------------
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
TO ALL OFFICERS , REPRESENTATIVES, AGENTS, AND MEMBERS OF THE NATIONAL
MARITIME UNION OF AMERICA
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the Labor Management
Relations Act of 1947, we hereby notify you that:
1. WE WILL NOT require that employers execute contracts which expressly
or by implication, make membership in, or approval by, NMU a condition of
hiring, or of continued employment, except in accordance with the provisos in
Section 8 (a) (3) of the aforesaid Act;
2. WE WILL NOT require employers to agree to secure their respective
unlicensed personnel through the medium of NMU hiring halls ;
3. WE WILL NOT cause, or attempt to cause, employers to discriminate in
any manner against their respective employees in violation of Section 8 (a)
(3) of the aforesaid Act, particularly by requiring employers to execute
collective bargaining contracts containing NMU's standard form of hiring-hall
clause ;
4. WE WILL NOT restrain or coerce the employees of The Texas Company,
Cleveland Tankers, Inc., Lake Tankers Corporation, and Great Lakes Trans-
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port Corporation in the exercise of the rights guaranteed in Section 7 of the
aforesaid Act, and particularly by attempting to impose , or imposing upon,
employees of the aforesaid companies any condition of employment requiring
the said employees , as a condition of employment , to obtain their employ-
ment through the medium of the NMU's hiring halls.
JOSEPH CURRAN,
JACK LAWRENSON,
JOSH LAWRENCE,
CHESTER YOUNG,
MICHAEL MCBRIDE,
CHARLES MONROE,
As Agents for NMU.
Dated ---------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced , or covered by any other material.