New York Shipping Association, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1955

114 N.L.R.B. 1556 (N.L.R.B. 1955)

1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York Shipping Association , Inc., Pittston Stevedoring Corp.
and International Brotherhood of Longshoremen , AFL-CIO t
Pittston Stevedoring Corp . and Thomas Swannick
International Longshoremen's Association , Independent; Local
1261 , International Longshoremen 's Association , Independent
and International Brotherhood of Longshoremen , AFL-CIO.
Cases Nos. 2-CA-3915, 2-CA-3975, and 2-CB-1288. December 30,
1955
DECISION AND ORDER
On September 22, 1955, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in and were not engaging in any unfair
labor practices alleged in the complaint and recommending that the
complaint be dismissed in its entirety, ,as set forth in the.copy.of the
Intermediate Report attached hereto. Thereafter the AFL filed ex-
ceptions to the Intermediate Report and a brief. Pittston and the
Association also filed a joint brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.2
[The Board dismissed the complaint.]
1 The AFL and CIO having merged, we are emending the identification of the Union's
affiliation.
2 Apparently by inadvertence , the Trial Examiner failed to make an express finding on
the evidence with respect to certain complaint allegations The record shows and we find
that the General Counsel failed to prove either that the Association discriminatorily laid
off the complainants or that the ILA and Local 1261 at any time attempted td` cause
discrimination against prospective employees.
We also reject the Trial Examiner 's statement that 23 of the 24 checkers laid off on
August 13, 1954, had been hired during the strike. We find instead , as the record shows,
that while the 23 checkers were members of the AFL, at least 9 did not come to work
during the strike.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges and amended charges filed by International Brotherhood of Long-
shoremen , AFL, hereinafter called the ,AFL, and Thomas Swannick, the General
Counsel issued a consolidated complaint in all of the above -captioned cases alleging
that the Respondents named therein had engaged in and were engaging in certain
unfair labor practices affecting commerce within the meaning of the National
Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the order con-
solidating the cases , the complaint , the charges and amended charges, and notice
of hearing were duly served upon all the parties.
114 NLRB No. 245.
NEW YORK SHIPPING ASSOCIATION , INC. 1557
With respect to the unfair labor practices, the complaint alleged that on or
about August 13 and September 16, 28, and 30, 1954, Pittston Stevedoring Corp.,
hereinafter called Pittston, and New York Shipping Association, Inc.,' hereinafter
called the Association, in violation of Section 8 (a) (1) and (3) of the Act, discharged
or refused to hire the employees named in the margin 2 for the reason that they were
not members or supporters of Respondent International Longshoremen's Association,
Independent, hereinafter referred to as the ILA, and Local 1261, International Long-
shoremen's Association, Independent, hereinafter referred to as Local 1261, "and/or
they were members or supporters" of the AFL. The allegations of unlawful conduct
against Respondents ILA and Local 1261 were that they, since on or about April 5,
1954, in violation of Section 8 (b) (I) (A) and (2) of the Act, caused and/or at-
tempted to cause Respondent Association and Respondent Pittston to discriminate
against the aforenamed employees, and prospective employees, in regard to hire and
tenure of employment because they were not members or supporters of the ILA, or
Local 1261, "and/or because they were members or supporters" of the AFL. The
separate answers of each of the Respondents denied the commission of unlawful
conduct as alleged in the complaint.
Pursuant to notice, a hearing was held at New York City on various dates between
June 15 and July 15, 1955, before the duly designated Trial Examiner. The Gen-
eral Counsel and all other parties were represented by counsel. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evidence was af-
forded to all parties. Oral argument was presented at the close of the hearing. Since
that time, Respondents Association and Pittston filed a joint brief which has been
duly considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I THE BUSINESS OPERATIONS OF THE ASSOCIATION AND PITTSTON
Respondent Association is an association of more than 170 employers engaged in
various operations involved in the shipment of cargo freight and passengers in and
out of the port of New York. The Association performs, among other things, the
function of negotiating and administering collective-bargaining agreements made on
behalf of its members with labor organizations representing employees employed by
Association members in their operations in the port of New York The membership
of the Association includes, among others, steamship companies and their agents
and contracting stevedore companies. The members of Respondent Association em-
ploy workers who render the services which are necessary for the loading and unload-
ing of cargo freight and passengers and for the proper maintenance and operation
of piers in the port of New York at which such loading and unloading operations
are performed for ships entering and leaving the port.
During the year preceding the filing of the complaint, the members of Respondent
Association carried general cargo in interstate and foreign commerce in excess of
6,000,000 long tons out of the various piers of the port of New York destined for
foreign countries and for various States of the United States other than the States
of New York and New Jersey. The value of such cargo was in excess of $4,000,000
During the same period, members of the Respondent Association carried general cargo
in foreign and interstate commerce in excess of 6,000,000 long tons into the piers
of the port of New York, from foreign countries and from States of the United
States other than the States of New York and New Jersey, and such cargo was
valued in excess of $3,000,000.
The name of this Respondent appears as amended at the hearing.
x On or about August 18, 1954: T. Bandiero, W. J. Webber, S. A. Goldstein, W. lirumm,
J Silverman, M. Greenfield, A. Jacobson, L. Hordish, A. Greenfield, L. Baer, A. M. Trasso,
M Potter, C. Cunningham, J. F. O'Connor, Sr., J. Baker, M. L. Maher, J. Cole, J.
l ignataro, M S Mastroi ells, I1 Fi ischnian. T Swannick. T. P Slow, and A E. Ward.
On or about September 16, 1954: T. P. Slow, A. E. Ward, L. Cole, W. J. O'Shea, M.
Potter, C Cunningham, J F. O'Connor, Sr, J. Baker, M. S. Mastrorelli,' A. W. Richard,
It A Farrow, and T. Swannick.
On or about September 28, 1954' B I' Grogan, T. Swannick, A. Justus, G L. Schroeder,
and M. L. Maher
, On or about 'Sep tember 80, 1954: J Pignataro, J. E. Flanagan, V. J. Bulone, E. A.
Farrow, F Pack, D. T. Barry, H. J. Tilton, F. H. Simmonds, S. J. Grohol, J. M. Grohol,
J C Gaskin, W P. Barrett, W. J. Monahan, J. Chapuisat, W. Degenhardt, and H. Barr.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Pittston is, and has been at all times material herein a corporation
duly organized and existing by virtue of the laws of the State of New York engaged
as a contracting stevedore company, and is a member of Respondent Association.
During the year preceding the filing of the complaint herein. Pittston performed serv-
ices for steamship line members and steamship agent members of Respondent
Association valued in excess of $200,000. Pittston at all times material herein, in
addition to its other operations in the port of New York, has furnished, under
contract with the United States Air Force, the services necessary for the loading and
unloading of cargo and freight at the Newark Transportation Control Depot, United
States Air Force, Port Newark, New Jersey, herein called the Air Force Base. Dur-
ing the year preceding the filing of the complaint herein, Respondent Pittston furnished
services valued in excess of $200,000, at the Air Force Base pursuant to said Gov-
ernment contract and which services were directly related to the national defense
effort.
Respondent Association and Respondent Pittston are, and at all times material
herein have been, engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act
If THE LABOR ORGANIZATIONS INVOLVED
The ILA, its Local 1261, and the AFL are labor organizations admitting to
membership employees of the Respondent Pittston
III. THE ALLEGED UNFAIR LABOR PRACTICES
On June 30, 1953, Pittston entered into a contract with the United States Air
Force Materiel Command, effective July 1, 1953, to supply stevedoring services for
the Air Force Base at Port Newark, New Jersey, a part of the port of Greater New
York. Cargo is received at that base by rail, truck, and air, from various inland
terminal bases. and is there processed and loaded on ships for transportation to over-
seas bases of the Air Force. In carrying out its duties as the contracting stevedore,
Pittston employs longshoremen, equipment operators, freight handlers, carpenters,
checkers, and clerks.
Prior to the summer of 1954, there were so employed approximately 350 long-
shoremen, 50 carpenters, 95 checkers, including 20 warehousemen and 10 clerks.
This proceeding, however, is concerned only with the alleged discriminatory dis-
charges of checkers and clerks. Briefly, the functions of checkers and clerks, who
perform only paper work, are to prepare documents recording the receipt of cargo,
its storage, and eventual loading and shipment. When Pittston began its operations
on July 1, 1953, it retained the services of the approximately 150 checkers and clerks
previously employed by the Jarka Company, the predecessor contracting stevedore at
the base. The employment of checkers and clerks was on a day-to-day basis If, on
any day, Pittston's supervisors estimated a smaller workload for the following day,
those employees whose services would not be required, were paid off
Prior to the time of the work stoppage on March 13 and 14, 1954, hereinafter
mentioned, Pittston, pursuant to its bargaining contract with the ILA, filled its addi-
tional labor requirements at the Air Force Base by calling upon Local 1261, whose
offices were located in Hoboken, New Jersey. The men so supplied, however, con-
sisted of an approximately equal number of AFL adherents and those who supported
the ILA.
The controversy which gave rise to these proceedings was occasioned by the long-
shoremen's strike which plagued the port of Greater New York in the spring of 1954.
Because it will aid in a better understanding of the problems with which we ate con-
cerned a brief summary of the events that preceded that much-publicized struggle
is appropriate.
On October 1, 1953, upon the expiration of the collective-bargaining agreement
between the ILA and the employers of longshoremen 3 in the port of Greater New
York, the ILA engaged in a strike against the employers along the Atlantic coast.
Contesting claims challenging the right of the ILA to continue as bargaining repre-
sentative of the longshoremen having been filed, the Board, on December 16, 1953,
ordered and directed that an election be conducted to determine such future repre-
sentation. 107 NLRB 364. At that election, held December 22 and 23, 1953,
9,060 votes were cast in favor of the ILA, 7,568 for the AFL, 95 for no union, and
4,405 ballots remained unopened because of interposed challenges. Objections to the
election having been filed by the AFL, the Board, on April 1, 1954, set aside the
aforementioned election and ordered a new election. 108 NLRB 135. Such second
election was held on May 26, 1954, at which 9,110 ballots were cast for the ILA,
3 Including in this designation of longshoremen are checkers and clerks.
NEW YORK SHIPPING ASSOCIATION, INC. 1559
8,791 for the AFL, and 1,767 were challenged. Disposition of the challenges was
not completed until August 27, 1954, at which time the Board certified the ILA as
collective-bargaining representative of all regular longshore employees, including
checkers and clerks, employed by members of the Association, including Pittston, in
the port of Greater New York. 109 NLRB 1075.
On March 13 and 14, 1954,4 when operations at the Air Force Base were at a
peak, the portwide strike engaged in by adherents of the ILA spread to Port Newark
and operations at the Air Force Base were brought to a standstill. The Air Force,
however, requested Pittston to keep that base in operation while the strike was in
progress. Accordingly, on or about March 16, under circumstances hereafter de-
tailed, Pittston made arrangements with representatives of the AFL to supply the
checkers necessary to carry on the air base operations. From that date on, until
the strike ended at or about midnight of April 2, Pittston hired approximately 60
checkers through the AFL.
On or about April 5, Gus Chiarello and Daniel Keogh, respectively vice president
and secretary-treasurer of Pittston, met with officials representing the ILA, Local
1261, other ILA longshore locals, and two representatives of the National Labor Re-
lations Board.5 Captain William V. Bradley, president of the ILA, informed the
group that he "had some communication from the NLRB," and that he wanted
Pittston and every other employer of longshoremen "to reemploy the men formerly
employed where they were . that he didn't care whether they weie AFL or ILA,
so long as the men worked there previously, that he was in favor of those same men
being reemployed." During the conference, Bradley referred to an AFL circular,
issued after the strike ended, informing its members that "every longshoreman has
the complete right to his old job" and that the AFL "is not interested in replacing
any working longshoreman in his job."
Other meetings between members of the Association and the ILA were held,
the details of which would needlessly expand this report. Suffice it to say that the
consistent demand of the ILA was that the employers "return to the past practice of
hiring the gangs and checkers that they had before the work stoppage in March
1954." William P. Riley, a dock boss selected by the AFL, testified that immediately
after the strike ended, approximately 20 AFL checkers voluntarily left Pittston and
returned to jobs they previously held in other parts of the port. Of the 27 old em-
ployees who returned to work at Pittston during the week following the end of the
strike, 11 were AFL adherents. Practically all of this latter group worked for Pittston
after the four layoffs involved in this proceeding.
After several small reductions in force of which no complaint is made, Pittston,
on August 13. found it economically necessary to materially reduce its staff by laying
off 24 checkers. Twenty-three of the men so laid off were hired through the AFL dur-
ing the strike. Of these 23, approximately half were subsequently rehired. Another
economic reduction in personnel occurred on September 16 when about 20 checkers
were laid off, and it is the contention of the General Counsel that 12 of this number,
all hired through the AFL during the strike, were discriminatorily selected for such
layoffs. Further substantial reductions were made on September 28 and on Septem-
ber 30. These, like the previous reductions, were admittedly economic in character.
The complaint charges that 5 and 16 AFL adherents were discriminately selected on
those 2 occasions.
The position of the General Counsel may be summarized as follows:
I That on or about March 15, 1954, in order to induce the AFL to furnish the
checkers necessary to operate the Air Force Base during the pending strike, Pittston
through Chiarello, promised "that these AFL men who came in during the strike
would be the last to go and they would have work as long as Pittston had work."
2. After the strike, the ILA pressured Pittston and the Association to compel
the discharge of all checkers who were hired during the strike
3. Such pressure had as its purpose the discharge of the AFL adherents and their
replacement by the ILA adherents.
4. Pittston was biased against the AFL and in favor of the 1LA.
5. Pittston succumbed to ILA pressure by laying off AFL adherents on August 13
and September 16, 28, and 30, and by refusing to rehire such employees.
To prove that the agreement in 1, above, was made, the General Counsel offered
the testimony, inter alia, of Archie McVicker, a full-time AFL organizer on the New
Jersey waterfront from January 1954 until after the elections aforementioned, and
the person with whom the agreement was allegedly made When McVicker was
4 Unless otherwise specified, all later reference to dates is to the year 1954
5 These two Board employees were not called as witnesses.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked to give "a complete, detailed account" of the conversion he had with Chiarello
on or about March 15 with respect to the alleged agreement, he testified as follows.
Mr. Chiarello said we need checkers, can you supply them. I said we might be
able to bring them in if we could guarantee the men that after they go in there
and their cars are broken up and maybe bodily damage done to them etc., you
are asking us to get you men to come in there. What guarantee do we have that
the minute the strike is over that these fellows won't be tossed out on their ears
again. . . . He said he would guarantee that he would keep them there. Of
course, at this time, we discussed it in detail. I said you mean you will keep
them there regardless of who wins the election and so on and so on, because this
is a very serious situation for these men. He said definitely. . I said, all
right, we will see if we can get you checkers. I believe we can. If we can as-
sure these men that they are not going to be laid off as soon as the strike is over
or right after it is over, but that they will be given an opportunity to work, he
said that he could assure them that they would be working there as long as Pitts-
ton was working there
Chester El, another AFL organizer present when the alleged agreement was made,
appeared as a witness for the General Counsel. He testified that, though all that
McVicker "wanted to know [was] what assurance these checkers . .. would have
when the strike was over," Chiarello assured McVicker "that these men would be the
last ones to leave Port Newark "
Chiarello denied that the alleged agreement was ever made. Joseph LaManna.
Pittston's clerk superintendent, "the person primarily responsible for checkers" and
the management representative who selected the men to be laid off on August 13, de-
nied knowledge of any such agreement, as did Keogh.
On the entire record, and my obseivation of the witnesses involved, I find that no
such agreement was ever made The testimony of both McVicker and El establishes
that all that McVicker required of Pittston in return for his promise to supply check-
ers was a "guarantee . that the minute the strike is over that these [AFL] fellows
won't be tossed out." That being the only quid pro quo imposed by McVicker, it is
unrealistic to assume that Chiarello would gratuitously volunteer to give the nigh un-
limited assurance that the AFL men to be hired would continue to work "as long as
Pittston was working there." Not only was there then grave doubt as to which labor
organization would in the near future be certified as the bargaining representative
of the checkers and clerks, but Chiarello did not impress me as the type of executive
who would blindly make a commitment to permanently retain any checkers to be
sent by the AFL during the strike even though they might prove less competent than
the experienced checkers employed prior to the strike, consisting of both AFL and
ILA adherents, and who, it was reasonable to expect, would return to work after the
strike ended.
Chiarello undoubtedly gave some assurance in response to McVicker's expressed
fear that the AFL checkers might be fired the moment the strike was over. Indeed,
the General Counsel's own witnesses testified to the extent of the promise obtained
from Chiarello. Thus, John Martin, shop steward for the AFL, testified that on
two occasions shortly after March 15, when the tenure of the employees then work-
ing for Pittston was discussed with Chiarello, the latter merely stated that "there
wouldn't be any discrimination against them," and that they wouldn't be "dumped."
On the entire record, I conclude that the only commitment made by Chiarello was
to assure McVicker that the AFL men hired during the strike would not be arbi-
trarily "dumped" at the close thereof.
Assuming arguendo that the agreement was made as claimed by the General
Counsel, a breach thereof, standing alone, does not constitute a violation of Section
8 (a) (3) of the Act. While the alleged agreement and breach might have some
probative value in determining whether, on the record as a whole, discrimination has
been proven, the alleged breach is not, per se, violative of Section 8 (a) (3) of the
Act. Whatever the remedy is for such a breach it is not one which may be enforced
in this proceeding.
Our problem, therefore, is to determine whether or not on the remainder of the
record the General Counsel has sustained the burden resting upon him to establish
by a preponderance of the evidence that the selection of checkers for layoffs on the
dates involved herein was made to encourage membership in, or support of, the In-
dependent , and/or to discourage membership in, or support of, the AFL. A careful
reading and analysis of the entire transcript of testimony has confirmed the tentative
judgment reached by me at the conclusion of the hearing that the General Counsel
has not established by the necessary preponderance of the evidence that the employees
NEW YORK SHIPPING ASSOCIATION, INC. 1561
named in the complaint were discriminated against for the reasons alleged in that
pleading.
Undoubtedly, because on August 13, when there were approximately 60 AFL ad-
herents and about 26 ILA adherents employed, 23 of the 24 men laid off were
members of the AFL, a suspicion is created that the selection was discriminatorily
made. However, a finding of violation cannot be made on suspicion alone. Punch
and Judy Tugs, inc., 85 NLRB 499. Furthermore, these are countervailing factors
present which dilute even the suspicion created by the disproportion above described.
There are no allegations in the complaint, except for those pertaining to, and which
may be derived from, the layoffs under consideration, that any of the Respondents
in any manner interfered with, restrained, or coerced, a single one of Pittston's em-
ployees in the exercise of his rights under the Act to join or assist, or to refrain from
joining or assisting, any labor organization. Absent too is the factor generally pres-
ent in discrimination proceedings of this nature that union adherents selected for dis-
crimination were either officers of, active protagonists for, or active antagonists of,
either union. Here, all that appears with reference to any of the alleged discrimi-
natees is that they were members of the AFL. Such passive membership is not suffi-
cient under all the circumstances present here from which to draw an inference of
discrimination. Indeed, not only is there a complete lack of testimony that active
AFL protagonists were selected as objects of discrimination, but the evidence is con-
clusive that Pittston resisted the several attempts made to induce the dischage of the
two symbols of AFL power at the base-John Martin, the AFL shop steward, and
Riley, selected by the AFL as dock boss for the checkers .6 Martin voluntarily left
Pittston's employment in April 1955, and Riley was still in its employ during the
hearing herein
Turning now to the testimony offered by Pittston pertaining to the manner in
which the layoff list of August 13 was prepared, the record establishes that Chiarello
called LaManna during the morning of that day, told him to prepare a list of the
men to be laid off and "to keep the best men for the business." LaMantia examined
the roster of checkers and clerks then employed and began preparation of the list
of men to be laid off. In arriving at his conclusions, LaManna took into considera-
tion each man's experience, his versatility and ability to perform more than the sin-
gle.task to which he was normally assigned, the speed with which the employee
worked, and the complaints received concerning his work. After checking. with hir-
ing boss Murnane, and making 1 substitution at the latter's suggestion, LaMantia laid
off 24 men of which complaint is made with respect to the 23 AFL members.
LaManna testified extensively concerning the appraisal he made of substantially
the entire complement of checkers and clerks working on August 13. In determin-
ing who was to be laid off on that day,, LaMantia automatically eliminated those
who were working as dock bosses or on special detail on the ground that there were
enough ordinary checkers available for layoff. The experience of most of the men
placed on the layoff list was limited to but 1 phase of the 4 or 5 different tasks per-
formed by checkers; others were laid off because of complaints received from the
Air Force, or because they were slow workers.
Being required to operate thereafter with a substantially reduced staff, normal
operating procedure would require LaMantia to retain the men with wider experience
or with better work records. Only 7 of the 23 alleged August 13 discriminatees
testified at the hearing and their testimony did not impress me sufficiently to put in
doubt LaManna's appraisal of their value to Pittston in a realignment and reduction
of that staff. Most of these seven witnesse 's merely testified that they had never
been criticized for their work performance and I do not attach the significance to the
lack of such criticism that the General Counsel attributes thereto. These men were
not discharged for incompetence. They were selected for layoff merely because
they were less valuable to Pittston than those who were retained. Indeed,, when
the staff was enlarged after August 13, l0.of the 23. alleged discriminatees were re-
hired for various periods, and another was offered but declined employment.
LaMantia admitted that he knew. that practically all of the men selected for lay-
off were AFL members either because he was aware that some of them came in
during the strike, or because of the AFL buttons worn by the remainder. How-
ever, on my appraisal of LaManna' s trustworthiness as a witness as I observed him
while testifying, I unhesitatingly credit his testimony that the union affiliation played
no part in his preparation of the layoff list. V
On the entire record, and my observation of the witnesses- involved, I find that
the General Counsel has not sustained the burden of, proving by a preponderance
e There is no allegation in the complaint that the attempts to induce the discharge of
these two men was violative of the Act.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the evidence that the 23 men alleged to have been discriminatorily laid off on
August 13 were in fact laid off for the reasons alleged in the complaint.
During the week following the layoff of August 13, AFL representatives and at-
torneys contacted Keogh of Pittston and the latter's attorneys, and complained of
the action taken during the previous week. At the same time, Pittston was aware
that there was pending before the Board Case No. 2-CA-3724 based on a charge
filed by the ILA against Pittston and other members of the Association setting forth
that the latter groups were depriving longshoremen and checkers "of their rights to
employment solely because of their affiliation with the [ILA] . and have at-
tempted to coerce these employees into joining the [AFL] by refusing job oppor-
tunities solely because of affiliation with [ILA]."
Faced with charges filed by both unions, Keogh, during the week of August 16,
consulted Mr. Lorenz, one of Pittston's attorneys, as to the course to follow to avoid
accusations of discrimination in the event of future layoffs. In the language of
Keogh, he sought the aid of his attorney, who had already been in touch with repre-
sentatives of the Board's Regional Office, to make it impossible for either the ILA
or the AFL "to clobber" Pittston in the future. To avoid such accusations of favorit-
ism towards either labor organization, both men decided that in making future lay-
offs, or in rehiring, fibre number 215 7 would be used as a guide post, wherever pos-
sible. That number, and all others below, identified employees engaged prior to
the strike and who had worked for Pittston since the inception of its operations at
the Air Force Base. As the record establishes, many were AFL, many were ILA,
and the affiliation or preference of others was not known. The fibre number de-
cision was promptly communicated to Pittston's supervisory personnel together with
instructions to make all future layoffs and hirings accordingly. The layoffs of Sep-
tember 16, 28, and 30, of which the General Counsel complains, were made pur-
suant to those instructions.
The factual situation existing during the week of August 16, when all its ele-
ments are perspectively considered, convinces me that the fibre number decision was
a prudent and reasonable solution of the problem. I agree with Pittston, as it argues
in its brief, that had it selected only men with fibre numbers below 215 for layoff,
it would have subjected itself to a very serious charge of discrimination against the
ILA. Were it to use the "first in last out" principle, it would have decimated its
ranks of some of the best workers and adversely affected the efficient operations
of the Air Force terminal. Were it to continue its layoff on the basis of efficiency,
it would have faced the difficulty of proving the reasonable exercise of its super-
visors' judgment in each case. If it laid off on a fixed percentage basis, it would
have discriminated both against the ILA and the AFL. Martin and Riley, while
professing there was an agreement to keep the new men on, both testified that they
spoke to Pittston officials in favor of a 50-50 distribution of layoffs. But if that
system had been adopted by Pittston, it would have required Pittston to take into
consideration the union affiliation of each employee. Although the fibre number
decision satisfied neither union, it was a reasonable, logical, and lawful course for
Pittston to pursue.
In making the fibre number decision Pittston also disposed of another problem
created by employees who came in during the strike. Men with fibre numbers 215
and below had been hired through a New Jersey local of the ILA and were there-
fore entitled to, and receiving, only 1-hour travel pay and carfare. Employees with
fibre numbers above 215, having all been hired through a Brooklyn local of the AFL,
were insisting upon, and receiving, 2-hour travel pay and additional carfare, for all
of which the Government reimbursed Pittston. The Air Force contracting officers
had, however, complained to Pittston about the continuance of such excessive pay-
ments. With the layoff of all employees with fibre numbers above 215, only 1-hour
traveltime pay each day and lower transportation costs had to be paid to checkers
and clerks.
After the fibre number decision was placed into operation by Pittston, almost all
of the employees who worked as checkers, clerks, and dock bosses at the Air Force
installation were men who had been employed by Pittston from the inception of
its operations in July 1953. These old employees who had worked for Pittston both
before and after the strike were adherents of both the ILA and of the AFL. The
number of checkers employed on a daily basis in the months of October through
December 1954 was less than 50 and, according to the testimony of Riley, approxi-
v Except for some modification not relevnnt here, Pittston assigned an identification
number, known as a fibre number, to each of the employees, in chronological order, when
he first began working for Pittston.
LOCAL 1258 1563
mately 23 were AFL adherents. All of them worked for Pittston after the layoffs
of August and September , making it clear that the checker operation was by no
means inundated by ILA men. On the contrary , AFL men continued to perform a
substantial part of the whole operation.
On the entire record I find that the General Counsel has not established by pre-
ponderance of the evidence that Pittston on or about September 16, 28, or 30, 1954,
discharged , or thereafter refused to hire, the employees named in footnote 2, supra,
for the reason that they were not members or supporters of the ILA, or Local 1261,
or because they were members or supporters of the AFL. I further find that the
preponderance of the evidence does not establish that Respondents ILA or Local
1261 caused , or attempted to cause, Pittston and the Association to discriminate
against the employees named in the complaint for the reasons alleged in that
pleading.
CONCLUSIONS or LAW
1. The operations of New York Shipping Association , Inc., and Pittston Stevedor-
ing Corp . constitute and affect trade, traffic , and commerce among the several States
within the meaning of Section 2 (6) and (7) of the Act.
2. International Longshoremen 's Association , Independent , its Local 1261, and
International Brotherhood of Longshoremen , AFL, are labor organizations within
the meaning of Section 2 (5) of the Act.
3. New York Shipping Association, Inc., and Pittston Stevedoring Corp. have
not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and
(3) of the Act.
4. International Longshoremen 's Association , Independent , and its Local 1261
have not engaged in unfair labor practices within the meaning of Section 8 (b) (1)
(A) and (2) of the Act.
[Recommendations omitted from publication.]
Local 1258 , International Longshoremen 's Association, Inde-
pendent and Horace Hopkins
Local 1258, International Longshoremen 's Association, Independ-
ent and Henry B. Rock . Cases Nos. 2-CB-1466 and 2-CB-1467.
December 30, 1055
DECISION AND ORDER
On September 26, 1955, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
' As to the unfair labor practices found , no exceptions were filed We have therefore
adopted the Intermediate Report pro forma The only exception was filed by the General
Counsel on an aspect of the remedy . We find this exception without merit.
114 NLRB No. 244.