Pacific Maritime Association

National Labor Relations Board - Board Decisions

Dec 7, 1962

140 N.L.R.B. 9 (N.L.R.B. 1962)

PACIFIC MARITIME ASSOCIATION 9
for the Second Region, shall , after being duly signed by the Respondents , be posted
by them immediately upon receipt thereof, and be maintained for 60 consecutive
days thereafter in conspicuous places, including all places where notices to em-
ployees and members are customarily posted. Reasonable steps shall be taken
by Respondents to insure that such notices are not altered , defaced , or covered by any
other material
(b) Furnish to the Regional Director for the Second Region signed copies of said
notice for posting by the above-named companies, if willing, in places where notices
to employees are customarily posted. Copies of said notice , to be furnished by the
Regional Director, shall, after being signed by the Respondents, be forthwith returned
to the Regional director for disposition by him
(c) Notify the said Regional Director, in writing, within 20 days from the date
of this Intermediate Report and Recommended Order, what steps the Respondents
have taken to comply herewith 23
zz In the event this Recommended Order is adopted by the Board , this provision shall
be modified to read • "Notify said Regional Director , in writing , within 10 days from the
date of this Order, what steps the Respondents have taken to comply herewith "
APPENDIX A
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF PRECRETE, INC., AND
CUT & BEND, INC.
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that:
WE WILL NOT engage in , or induce or encourage any individual employed by
Precrete, Inc., Cut & Bend, Inc., or by any other person engaged in commerce
or in an industry affecting commerce, to engage in, a strike or refusal in the
course of his employment to perform any services , or threaten, coerce, or re-
strain the above-named Companies and persons , where an object thereof in
either case is to force or require Precrete , Inc., to assign the work of placing
and tying reinforce materials to employees engaged as metal lathers who are rep-
resented by Local 46, Wood, Wire and Metal Lathers International Union,
AFL-CIO, rather than to employees represented by another labor organization,
except insofar as any such action is permitted under Section 8 (b) (4) (D) of the
Act.
LOCAL 46, WOOD, WIRE AND METAL LATHERS
INTERNATIONAL UNION, AFL-CIO,
Labor Organization.
Dated-------- ----------- By-------------------------------------------(Representative) (Title)
Dated------------------- By-------------------------------------------
(BRIAN DILLON , Business Representative)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York 22, New York, Telephone
No Plaza 1-5500, if they have any question concerning this notice or compliance
with its provisions.
Pacific Maritime Association and John A. Mahoney . Case No.
19-CA-92208. December 7,1962
DECISION AND ORDER
On August 24, 1962, Trial Examiner Herman Marx issued his
Intermediate Report and Recommended Order in the above-entitled
proceeding , finding that the Respondent had not engaged in the un-
fair labor practices alleged in the complaint and recommending that
140 NLRB No. 3.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint be dismissed in its entirety, as set forth in the attached
Intermediate Report. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report, together with a supporting brief.
The Respondent filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
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
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the comp] aint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in this proceeding, issued by the General Counsel of the National
Labor Relations Board, alleges that the Respondent, Pacific Maritime Association
(herein called PMA), an association of employers, has denied employment oppor-
tunities to a longshoreman named John A. Mahoney, the Charging Party in this
proceeding, by causing his deregistration from a hiring register maintained by PMA
and a labor organization, Local 19, International Longshoremen's and Warehouse-
men's Union (herein also called Local 19 or the Union); that the reason for the
deregistration was that Mahoney had "asserted rights and made claims on behalf
of himself and others against Respondent and its employer members with regard
to wages and safety conditions, and ... has been active as a critic of the officers" of
Local 19; and that by the deregistration the Respondent has discriminated against
Mahoney in violation of Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (29 U.S.C., Sec. 151, et seq.; also referred to herein as the Act).'
The Respondent has filed an answer which, in material substance, admits Ma-
honey's deregistration, but denies that the action was unlawful.
Pursuant to notice duly served by the General Counsel upon each of the parties,
a hearing upon the issues in this proceeding has been held before Trial Examiner
Herman Marx at Seattle, Washington. Each of the parties appeared through, and
was represented by, counsel; participated in the hearing; and was afforded a full
opportunity to be heard, examine and cross-examine witnesses, adduce evidence,
file briefs, and submit oral argument. Before the close of the hearing, I granted
a motion of the General Counsel to take the deposition of a witness (Howard L.
Madden). The deposition is hereby made a part of the record of the hearing, and
the objections incorporated in the transcript of the deposition are overruled. The
Respondent has filed a motion, dated July 23, 1962, to correct the transcript of the
hearing. The motion is granted in the particulars set forth therein.2 I have read
and considered the briefs filed with me since the close of the hearing.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. NATURE OF THE RESPONDENT'S BUSINESS; JURISDICTION OF THE BOARD
-PMA, which is organized as a California corporation, is an association of em-
ployers variously engaged in stevedoring, shipping, and waterfront terminal oper-
1 The complaint is based on a charge filed with the Board by Mahoney on May 8, 1961.
Copies of the complaint and charge have been duly served upon the Respondent.
2 The transcript contains Inaccurate or garbled transcriptions, in addition to those
reached by the motion, but as the record adequately reflects the material facts and issues,
I deem It unnecessary to correct the transcript In any additional particulars.
PACIFIC MARITIME ASSOCIATION 11
ations on the Pacific coast; maintains its headquarters in San Francisco, California,
and offices in other port cities, including one in Seattle, Washington; represents
its members in collective bargaining and other labor-management relations with
labor organizations; and is, and has been at all material times, an employer within
the meaning of Section 2(2) of the Act.
Members of PMA annually perform transportation services, valued in excess of
$5,000,000, between points in the State of Washington and locations outside thereof.
By reason of such services, and its activities on behalf of its members, PMA is, and
has been at all material times, engaged in commerce within the meaning of Section
2(6) and (7) of the Act. Accordingly, the Board has jurisdiction of the subject
matter of this proceeding.
H. THE LABOR ORGANIZATIONS INVOLVED
Local 19 is an affiliate of International Longshoremen's and Warehousemen's
Union (herein also called the International). The latter negotiates and enters into
collective-bargaining agreements on behalf of its local affiliates, including Local 19,
with PMA, prescribing terms and conditions of employment of individuals employed
by members of PMA. Both Local 19 and the International are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The Respondent maintains that Mahoney was deregistered not for the reasons al-
leged in the complaint but because he caused a disturbance on March 25, 1962, at
a hiring hall jointly operated in Seattle by PMA and Local 19. An evaluation of
the conflicting positions requires a summary of some contractual provisions affecting
PMA and Local 19; and a description of various facets of Mahoney's employment
and union history.
The relevant contractual terms are embodied in a contract, dated June 16, 1951,
between the International, "on behalf of itself and . . . its longshore locals," and
PMA, acting for its members, affecting longshore employees of such members in
the Pacific Coast States, including Washington. The agreement, which, in all respects
material here, is still in effect, prescribes grievance processing machinery and hiring
procedures; forbids strikes and work stoppages, subject to the proviso that long-
shoremen "shall not be required to work when in good faith they believe that to
do so is to immediately endanger health and safety"; and provides for the establish-
ment of three types of committees, each comprised, in equal number, of union and
management representatives, one such body for each port, the second for each of
four territorial areas, and the third, located in San Francisco, with coastwide
functions.3
The port committees are empowered, under the contract, to maintain and operate
facilities for the registration of longshoremen available for employment, and for
their hiring and dispatch to jobs; to "have control" over such registration lists, as
specified in the agreement; to "investigate and adjudicate all grievances and disputes"
in accordance with procedures set forth in the contract; and to "investigate and
adjudicate any complaint against any longshoreman whose conduct on the job, or
in the hiring hall, causes disruption of normal harmony in the relationship of the
parties hereto or the frustration and/or violation of the provisions, working or
dispatching rules" of the agreement The contract provides that in the event a port
committee is unable to resolve a grievance or dispute, the issue must be referred,
upon request of either the union or management members, to the appropriate area
committee, which is authorized to decide the matter. If the area committee is unable
to resolve the question, it must be referred for determination to an "area arbitrator."
The coastwide committee is authorized by the agreement to review the decision (with
to resolve the question, it must be referred for determination to an "area arbitrator."
claimed to be in conflict with the contract, and to determine the matter.4
Under the terms of the contract, a committee for the port of Seattle, another for
the Puget Sound area (which includes Seattle), and the coastwide committee have
been in existence at all times material to this proceeding. (For convenience of
"The full contractual names of these committees, stated in the order mentioned above,
are "Joint Port Labor Relations Committee," "Joint Area Labor Relations Committee,"
and "Joint Coast Labor Relations Committee "
4I have not summarised all of the grievance and arbitration machinery provided by the
contract, deeming the summary set forth to be sufficient for the purposes of this proceeding
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reference, these three bodies will be respectively termed herein the Port Committee,
the Area Committee, and the Coast Committee.)
Local 19 and PMA, through the Port Committee, maintain and operate a hiring
hall in Seattle for the hiring and dispatch of employees to longshore jobs in the port.
The hall is located on the first floor of a building that houses offices of Local 19 on
its third floor. The Port Committee has established and maintains at the hiring hall
two types of registration of individuals eligible for hire and dispatch to jobs through
the hiring hall. One of the lists consists of men who are, as one witness put it, "fully
registered" (and will be designated here, for convenience of reference, as the "regular
register"); and the other is made up of men in a so-called "subsidiary work force."
Those on the regular register are entitled to preference in dispatch, and a "subsidiary"
registrant may not be assigned to a job if anyone on the regular list is available.
Unregistered individuals, called " casuals" in the record, are also dispatched from
the hiring hall, but only if no registrant is available. Job assignments are made by
dispatchers stationed at the hiring hall, who are elected by the membership of
Local 19, but are subject to regulation and removal by the Seattle Port Committee.
PHA participates in the Port and Area Committee functions in Seattle through
staff members stationed there, one of them, Darrell Cornell, PMA's Washington area
manager, serving as an employer member of the Area Committee, and another,
James Shields, assistant area manager and Cornell's subordinate, serving as an em-
ployer member of the Port Committee.
In addition to the role it plays in Port and Area Committee functions in Seattle,
PMA, acting through the agency of an organization known as the Waterfront
Employers of Washington (of which Cornell is president), serves as paymaster for
PMA's Washington area members, providing machinery for central payroll record-
keeping and wage payments to longshoremen, some of whom work for more than one
employer in a pay period. It is "very common," as the evidence establishes, for long-
shoremen to file wage shortage claims with Waterfront Employers of Washington.
Such claims are frequently resolved by the payment agency by determining whether
an arithmetical error has been made, but if not so adjusted, the claim may then be
referred to the relevant port committee and processed under the grievance procedures.
Mahoney began working as a longshoreman on the Seattle waterfront in 1950;
was placed on the regular register in 1953; and was deregistered on or about
March 30, 1961, under circumstances to be described later.
He became a member of Local 19 in or about 1953, and for several years there-
after was friendly with William Gettings, the International's regional director in the
Seattle area, who from time to time consulted Mahoney regarding matters of com-
mon concern to a sailors' union and longshore locals, doing so apparently because of
Mahoney's prior experience with the sailor's organization In 1956, Mahoney ex-
pressed opposition in and out of meetings of Local 19 to contract terms between
the International and PMA, and since then relations between him and Gettings have
been "very cool."
From time to time over the years, Mahoney has filed wage shortage claims with
PMA's fiscal agent on behalf of himself and other members of longshore "gangs"
employed with him. On a number of occasions, these were processed through the
Port and Area Committee grievance procedures, some going to arbitration
In the early morning of January 29, 1957, Mahoney, while a member of a night-
shift longshore gang engaged at a Seattle pier in unloading wheat from a vessel called
the Sanford, protested to the gang foreman that working conditions in one of the
holds were unsafe, claiming that there was danger of an exposion from wheat dust as
a result of its exposure to "open cargo lights," and that the men were endangered by
being required to work near certain machinery. Other members of the gang joined
in the protest, but the foreman insisted that the gang proceed with the work,
threatening them with discharge if they did not do so. A business agent of Local 19
was summoned at the instance of the longshoremen and he concurred in their
position. The foreman nevertheless discharged the employees and they left the pier.
In the afternoon of that dav, Mahoney came to the hiring hall for dispatch to
another job and learned that a longshore crew was slated for dispatch to the Sanford
to perform the work he and others had refused to do. He thereupon sought out
Gettings, whose office is in the same building as the hiring hall, and officials of
Local 19, told them that working conditions on the Sanford were unsafe, protested
the plan to dispatch men to do the work, and asserted that if the gang were dispatched
he would "put a picket line on there to see that there was nobody hurt " What
response, if any, the union officials made to this does not appear, but it is undisputed
that the new longshore gang was dispatched to the Sanford, reporting there at 7 p.m ,
the scheduled starting time; that at that time, Mahoney was at the pier site wearing
an armband bearing the legend "Picket"; that as a result, the gang performed no work
PACIFIC MARITIME ASSOCIATION 13
on the Sanford that night ; and that on the following day, January 30, the Seattle Fire
Department "declared the job unsafe."
On January 30, too, Cornell , on behalf of PMA, wrote to Local 19 , stating, among
other things , that Mahoney had established "an illegitimate picket line ," and re-
questing that his registration be suspended for 6 months , and that he thereafter be
placed "on a continuous probationary status with the understanding " that he would
be "automatically " deregistered if thereafter "found guilty of a contract violation."
The material upshot of the matter , as evidenced by an exchange of letters, dated
February 8, 1957, between Local 19 and PMA, was that they agreed that Mahoney's
picketing action had not been sanctioned by the Union and had therefore been
"illegitimate ," and that his registration be suspended for a 90-day period. In its
letter expressing its concurrence with the foregoing , PMA stated that it would move
for Mahoney 's deregistration should he "be found guilty of a serious contract
violation" in the future . Mahoney's registration suspension for the 90 -day period
followed.
He was suspended again on February 24 , 1959, this time for a year, effective
March 2, 1959 , by action of the Area Committee , upon the initiative of its employer-
members who had moved for Mahoney 's full deregistration . 5 The committee's sus-
pension action was based upon its finding that on December 3, 1958, Mahoney had
engaged in "fighting with other longshoremen ," had "roughed up" a supervisor of a
shipping company, and had assaulted "a security guard"; upon the Sanford picketing
incident 2 years earlier , for which Mahoney had previously been suspended; and
upon Mahoney 's conviction , on October 3, 1958, in the United States District Court,
of violation of 18 U .S.C., Sec. 659 ( dealing with embezzlement and theft and other
offenses involving articles in transit in interstate or foreign commerce ). Mahoney
resumed work as a registered longshoremen after the expiration of his suspension.
B. The deregistration
Mahoney was dispatched from the Seattle hiring hall to a job on March 25, 1961,
and was required to report for work at 8 a in. He reported a few minutes late and was
told by the job superintendent that his time would start at 8 : 15 a in. However, he
left for his home , doing so, according to his testimony , because, while waiting for his
time to start , he heard the superintendent tell a subordinate to secure a replacement
for him
Mahoney procured a shotgun and a box of shells at his home and proceeded to
the building that houses the hiring ball and the Union's headquarters , arriving at
the building about 10 a .m., then walking in and about the hiring hall premises,
carrying the shotgun under his arm, with the barrel pointed obliquely downward
toward the floor, and, while so doing, coming twice into the dispatch office ( which is
partitioned from the rest of the hiring hall ), and going into an area in the hall
where some longshoremen were playing cards. The chief dispatcher , Gerald Eells,
and another dispatcher were on duty in the dispatch section on the two occasions
Mahoney walked into the area . He also went to the Union ' s quarters on the third
floor of the building According to his uncontradicted testimony , he left his shotgun
with a longshoreman on the street before he proceeded to the Union 's quarters, re-
claiming it after he left there , and then taking it to the basement of the building.
While on the Union's premises , he went into Gettings ' private office there. Gettings
was absent at the time .6
Offering an explanation for his presence with the gun in the building . Mahoney
gave testimony to the effect that earlier that morning when he had been at the
hiring hall to receive his dispatch , he had talked to a longshoreman named Wooding
regarding sale of the gun to the latter; and that following failure of his job assign-
ment, he procured the gun from his home, returned with the weapon to the hiring
hall area in the hope of finding Wooding to complete the sale, and went in search
of him in the building and its vicinity.
The results in this proceeding do not hinge on the truth or falsity of this claim,
for the material question is not what Mahoney's motive was in bringing the gun into
I It may be noted , in passing , that the committee imposed additional disciplinary meas-
ures on Mahoney , which , in my judgment , need not be detailed because they do not
materially affect any issue in this proceeding
8I credit testimony by the Union ' s bookkeeper that she saw Mahoney go into Gettings'
office . She testified that because of a counter between her place of work and Mahoney
she could see only the tipper portion of his person and did not see any shotgun In his
testimony , Mahoney does not say that he entered Gettings ' office , neither does he specifi-
cally deny having done so
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the building , but whether , intentionally or not, he set off a serious disturbance there.
On that score , there can be no doubt that his armed presence in and about the
hiring hall put individuals in the area in fear of bodily harm Eells testified that the
gun "certainly looked big" to him, thus describing his apprehensiveness , and it is
evident from his testimony , too, that he tried to avoid Mahoney .7 The dispatcher
on duty with Eells, described by a witness as "excited and agitated ," and "obviously
desperate ," called the Union 's quarters on the third floor over a direct line and warned
a women employee of the Union at work there that "there was a man down there with
a shotgun and to get out of there ." The employee , the Union 's secretary , George
Oldham, and a business agent of the organization , thereupon took cover in a
"back room where we couldn 't be seen" and locked the door. The woman employee
telephoned the police from there, and two squad cars, with four policemen in all,
responded . By this time, as one of the police officers credibly put it in his testimony,
"the place was in an uproar." The policemen entered the building with drawn guns,
and Eells shouted to people in the hiring hall: "Get out of here. There may be some
action." The officers searched the building , but were unable to find Mahoney for
sometime. Finally , one of them located Mahoney in a locker room in the basement
of the building and arrested him at the point of a gun. Mahoney had placed the
shotgun, which the arresting policeman found not to be loaded, in a locker, and it
appeared to the officer that Mahoney was hiding behind a locker when discovered.
Shields, PMA 's assistant area manager , received news of the episode shortly there-
after that day, hearing about it from a number of persons, including Oldham and a
business agent of the Union. Shields proceeded to the hiring hall later in the day
and interviewed Eells regarding the episode . The chief dispatcher gave Shields an
account of the disturbance , informing the latter of his feeling of apprehensiveness with
a statement , as Shields testified , that he (Eells ) "had stared down the barrel of this
gun, and it was one of the longest barrels or the biggest barrel that he had ever seen,"
and telling Shields that he "had found it necessary to shout and clear the hiring hall
outside the dispatching office," and that the police had come and arrested Mahoney.
Shields reported to Cornell what he had learned at the dispatch office, and
Cornell instructed Shields to arrange a special meeting of the Port Committee and
to present there a motion on behalf of the employer members that Mahoney be
deregistered . Shields tried a number of times during the course of the next few
days to arrange the meeting but was unable to do so until March 30, 1961.
On that date , at some point before the meeting was held, Cornell telephoned
PMA's executive vice president , B. H Goodenough , who is also a member of the
Coast Committee , at Goodenough's office in San Francisco , and informed him of
the proposed motion, and in the course of the conversation , Cornell "reviewed"
Mahoney's "background ," outlining the ,incidents that had led to the prior suspensions
Goodenough told Cornell that he was in accord with the deregistration proposal.
At the Port Committee meeting, which convened about 2 p in., the employer
members stated that on the occasion of Mahoney 's suspension in February 1959,
they had taken the position that they would seek Mahoney's deregistration "if he
again became involved in a serious contract violation "; and moved that Mahoney
"be deregistered for causing a disturbance in the hiring hall March 25, 1961 , through
threatening the chief dispatcher and others in the joint hiring hall with a loaded
shot gun ." The union members voted against the motion, and as they, like the
employer-members , vote as a bloc , the motion failed to carry.
A regular meeting of the Area Committee was then in progress in Cornell's
office, and that same afternoon , shortly after failure of the motion, Shields came
to Cornell's office and informed him of the result . Cornell thereupon informed
the Area Committee of the disagreement , and, upon Cornell's initiative , the motion
made before the Port Committee and the disagreement were placed before the
Area Committee for review . Following a caucus among themselves. the union
members expressed the view that "the issue of deregistration is one which is most
difficult for union men to vote on." and therefore requested that the matter be
submitted to the Coast Committee "for settlement ." The employer-members agreed
to this procedure , and the Area Committee thereupon directed its secretary (Cornell)
"to submit the disagreement to the Coast (Committee ) via teletype "
Cornell carried out the instruction by sending a teletvpe jointly addressed to
Goodenough and an official of the International , L. B. Thomas . informing them
of the content of the motion , the disagreement in the Port Committee thereon, and
the action of the Area Committee . The message was placed on the wire at 4 p in
7 Bells testified : "I had Bone into the clerk's office (in the dispatch quarters) . . I
looked and opened the clerk's door to look out and he (Mahoney) was out of sight, so
I stepped back in (to the dispatch office) and he was turning and going out 11
PACIFIC MARITIME ASSOCIATION 15
The only evidence in the record of what the Coast Committee did in connection with
the issue submitted to it is contained in the minutes of a meeting that show that
it began at 4:30 p.m. on March 30, 1961, and adjourned 15 minutes later; that at
the session the Coast Committee "reviewed the recommendation of the Employers
concerning deregistration of John Mahoney," and "(i)n view of (his) record" agreed
that his deregistration be effective as of that date. The minutes were incorporated
in a teletype jointly sent by Goodenough and Thomas to PMA in Seattle, and
received there by the latter on the morning of March 31.
The evidence does not establish by what means Mahoney was notified of the
deregistration action, nor what physical changes were made in the regular register
at the Seattle hiring hall, but there is no dispute that he was informed of the
deregistration at one point or another (as is evident from a letter he wrote to PMA
on February 8, 1962), and that he has had a deregistered status at the hiring hall
since at least March 31, 1962.
On or about May 25, 1961, the prosecuting attorney of King County (Seattle),
Washington, filed information in the King County Superior Court charging Mahoney
with "assault in the second degree," based upon an allegation that he had assaulted
Gettings with the shotgun on March 25, 1961 (presumably, at the hiring hall).
After a trial, a jury acquitted Mahoney of the accusation on January 25, 1962.
Mahoney wrote to PMA on February 8, 1962, informing the latter of his
acquittal, and requesting restoration of his registered status. Notwithstanding
this letter, as well as one in similar vein Mahoney wrote to PMA on May 25, 1962,
PMA has failed and refused to restore his registration.
C. Concluding findings
The General Counsel takes the position that Mahoney did not in fact create a
disturbance at the hiring hall, that PMA was aware that he had not done so, and
that it seized on the hiring hall episode as a "pretext" to deregister Mahoney, doing
so because of long-standing hostility toward him engendered by his role in filing
wage shortage claims, his opposition to contract terms between the International
and PMA, and the picketing of the Sanford.8
The General Counsel's apparent deprecation of the shotgun episode flies in the
face of the facts. Mahoney, as the evidence establishes, having no business with the
dispatch personnel on the occasion in question, nevertheless came into the dispatch
office twice carrying the shotgun; induced fear there in the two dispatchers on duty
(whether intentionally or not is beside the point); and by his conduct set in motion
the chain of events leading to the arrival of four policemen, who went about their
business with drawn guns, and to his apprehension in the basement. Indeed, one of
the General Counsel's own witnesses, none other than the arresting police officer,
testified credibly in a deposition he gave that when the officers entered the hiring hall
"the place was in an uproar" and "everyone" there was "very scared." Moreover,
unlike the General Counsel in his brief, I perceive no overriding significance in
the fact that the deregistration motion charged Mahoney with "causing a disturbance
in the hiring hall . . . through threatening the chief dispatcher (Eells) and others
in the joint hiring hall with a loaded shotgun," whereas Fells testified that Mahoney
did not point the gun at him, and that he (Eells) does not "think" that Mahoney
"It may be noted that claims advanced by the General Counsel at the hearing vary
materially from the argument put forward in his brief . At the hearing , the General
Counsel took the position , in substance , that the Respondent used "an alleged assault
upon . . . Gettings" during the shotgun episode as a pretext for deregistering Mahoney
because of his role in filing wage claims, his contract differences with Gettings , and the
Sanford picketing incident . The brief, however , makes no express reference to the wage
claim activities and the conflict with Gettings ( although generalizing at one point that
Mahoney was deregistered "because of the protected actions in which he was engaged"),
but, rather, asserts that the "controlling considerations" are whether Mahoney assaulted
Fells during the shotgun episode, and whether the Sanford picketing action was a pro-
tected concerted activity . From this one may gather that the General 'Counsel's central
thesis now is that the Respondent used an alleged assault upon Fells ( and not Gettings)
as a pretext to deregister Mahoney because of the picketing activity. The shift of posi-
tions from those taken at the hearing to those in the brief is such that one is put to the
task of speculating whether the General Counsel still maintains that the wage claims, the
differences between Gettings and Mahoney , and the allegation of an assault upon Gettings
support his pretext position . In the absence of an explicit disavowal by the General
Counsel that such is the case , I am constrained to dispose of these matters , and do so
below.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatened anyone in the hiring hall with the gun, nor "think" that he told Shields
that there was such a threat. This, in my judgment, is a slender reed upon which to
lean the pretext argument , for there is ample evidence in the record to warrant a
conclusion that Mahoney did, in fact, cause a serious disturbance in the hiring hall,
whatever Eells thought in his testimony about the threatening nature of Mahoney's
conduct. What is more, it is undisputed that Eells told Shields that he "had stared
down the barrel of this gun, and it was one of the longest barrels or the biggest barrel
that he had ever seen." In the context of events at the time in question, I think it
not unreasonable for Shields to have construed this statement by Eells as a descrip-
tion of threatening behavior by Mahoney, but, in any case, whether or not Shields
properly interpreted Eells' statements to him, it seems to me that the General Counsel
is giving far too much emphasis to the form of the motion, and not enough to
the consequences of Mahoney's armed presence in the hiring hall. As regards the
shotgun episode, the important facts are that Mahoney created a serious disturbance
in the hiring hall, and put the dispatch personnel there in fear of him, and that
Eells, the Port Committee's dispatch supervisor, in substance, told Shields as much.
It appears to me, also, that Mahoney's acquittal of assaulting Gettings is im-
material. The motion to deregister Mahoney did not mention Gettings, nor is there
any evidence that any allegation that Mahoney assaulted Gettings was a factor in
PMA's deregistration proposal. Thus, unlike the General Counsel, I am unable
to view its refusal to restore Mahoney's registration status, following the acquittal,
as an indication that it had an ulterior motive in seeking his deregistration in the
first place.9
Nor do I perceive any substance in the General Counsel's claim that Mahoney's
Tole in filing wage shortage claims was a factor in PMA's decision to seek his deregis-
tration Such claims, as noted previously, are a very common practice among long-
shoremen, some filing claims repeatedly in a given year, and there is a standard
procedure to process them. In fact, there are hundreds of such claims each year
(for example, 903 in 1960, and 908 in 1961), some of them, like a number filed
by Mahoney over the years, going through grievance or arbitration procedures.
Why PMA should single out Mahoney as an object of reprisal for the claims he filed
does not appear. In short, I place no stock in the General Counsel's position in the
premises
Very thin, too, in my judgment, is his thesis that Mahoney's opposition to contract
terms between the International and PMA, and the resulting coolness between
Gettings and Mahoney, played a role in the deregistration move. In the first place,
there is no evidence that PMA so much as heard of Mahoney's contract opposition,
and thus to adopt the General Counsel's thesis, one would have to do so by guess
and surmise Secondly, Mahoney's activity in opposition to the contract took place
some S years before the deregistration move in March 1961, and I think it would
be stretching inference far out of reason to say that PMA was motivated by an
activity so stale as the contract attitudes Mahoney voiced in 1956 in opposition to
those of Gettings. Indeed, the evidence does not even establish that Gettings favored
the deregistration. It is well to recall, in that regard, that the union representatives
on the Port Committee opposed the deregistration motion, and that the union
members of the Area Committee, whose number included Gettings, took the
position that the deregistration issue " is most difficult for union men to vote upon,"
and declined to do so, agreeing, instead, to a proposal to submit the issue to the
Coast Committee. In any case, however one may appraise these union attitudes,
the basic fact is that it would be a sheer guess to conclude that PMA's deregistra-
tion action stemmed in any degree from Mahoney's opposition to the contract terms
or coolness between Gettings and himself. Such guesswork is forbidden the fact-
finder.
Two problems remain , and these are, first, whether Mahoney's activity in picket-
ing the Sanford was protected by the Act, and second, whether the episode was a
producing cause of the deregistration.
As regards the first question, the Respondent's brief views Mahoney's action as an
"illegitimate picketing activity" and, in substance, a violation of the collective-
6 Similarly, I am unable to accord any weight to evidence that guns have been brought
to the hiring hall to be "raffled off," or by longshoremen to exhibit to their fellows. These
activities took place not in the dispatch office, which is partitioned from the rest of the
hiring hall premises, but in an area used by the longshoremen for social purposes such
as card playing. Moreover, the evidence of gun displays on prior occasions does not alter
the fact that Mahoney's particular conduct, including his two armed visits on March 25
to the dispatch office, induced fear in dispatch personnel and others and created a
disturbance
PACIFIC MARITIME ASSOCIATION 17
bargaining agreement . Countering this, the General Counsel argues, in effect, that
the contract (section 10) expressly exempts from its prohibition of strikes and work
stoppages refusals by longshoremen to work "when in good faith they believe that
to do so is to immediately endanger health and safety"; that the work refusal by
the gang of which Mahoney was a member was permissible under the contract and
Section 502 of the Act which provides, in part, that "the quitting of labor by any
employee or employees in good faith because of abnormally dangerous conditions
for work at the place of employment ... (shall not) be deemed a strike under this
Act' ; that the refusal of Mahoney and the others in his crew to work was, by force
of the relevant contractual and statutory terms, a protected concerted activity; that
Mahoney's picketing was a means of seeking a similarly protected refusal by the newly
dispatched gang to work in dangerous conditions; and that since what Mahoney sought
was the exercise of contractual and statutory rights by such employees, his picketing
activity did not violate the agreement, but was within the protected reach of Section
7 of the Act For reasons that will presently appear, it is unnecessary to make a
choice between the opposed positions
With regard to the second issue, the General Counsel would have it, as indicated
earlier, that the Respondent seized upon the shotgun episode as a pretext to carry out
a long-standing design to deregister Mahoney because of the Sanford picketing
incident some 4 years earlier. The logic of this is not impressive, for there would
appear to be no need to use the shotgun affair as a pretext since the "uproar"
Mahoney caused in the hiring hall, for the operation and maintenance of which
PMA is partially responsible, and the fear he induced in the dispatch personnel on
duty there, of themselves furnished a reasonable basis for PMA's deregistration move.
The fact that it acted speedily to set the grievance machinery in motion , and that the
Coast Committee moved with what appears to have been considerable celerity to
act upon the deregistration proposal, does not necessarily lead one to believe that
PMA had an ulterior motive. In the context in which the action was taken, par-
ticularly bearing in mind the "uproar" at the hiring hall, and the climate of fear
Mahoney engendered there, it was not unnatural for PMA, as Cornell in effect testi-
fied, to seek speedy deregistration in the interest of protecting dispatch personnel,
and of orderly operation of the hiring hall
To be sure, when Cornell called Goodenough and secured the latter's approval of
the deregistration move, he discussed Mahoney's "background," including the Sanford
picketing episode, as well as violent conduct in which Mahoney had been involved on
the waterfront and his conviction of crime in the United States District Court, and
it is true, also, that the teletype sent by Goodenough and Thomas to PMA at
Seattle states that the Coast Committee "agrees" with the deregistration "(i)n view
of (Mahoney's) record," but these factors do not lead me to conclude that the shot-
gun episode was a mere pretext to cover a design to discriminate against Mahoney
because of the Sanford picketing incident. No member of the Coast Committee
testified, and the record does not inform us what weight it gave to any particular
aspect of Mahoney's "record"-whether to the conviction or the waterfront violence
or the picketing episode, or to all these factors; nor of any details of its deliberations
and conclusions other than the generalization that the Coast Committee had "re-
viewed the recommendations of the employers," the somewhat vague illusion to
Mahoney's "record," and the statement of concurrence in the deregistration proposal.
In other words, whatever there is in the record of the Coast Committee's action is too
barren of detail to permit a conclusion that the picketing activity was a moving
cause of its decision. To hold that it was would be, in my judgment, an essay in
speculation.
Moreover, PMA's course of conduct on the occasion of Mahoney's two suspensions
tends to negate the pretext theory. Significantly, it did not seek his deregistration
in the very disciplinary action that grew out of the picketing. One would think
that if PMA were disposed to secure his deregistration because of the picketing, it
would have sought it in the resulting disciplinary procedure rather -than the 6-month
suspension it did seek. Even in the second disciplinary proceeding, which involved
alleged acts of violence by Mahoney on the waterfront and his conviction of crime
under a Federal statute, as well as the picketing episode, the representatives of PMA,
although initially requesting Mahoney's deregistration, agreed to his suspension for
1 year (and his future restriction to "day work," a matter that does not affect
the point under consideration). This course does not quite jibe with the General
Counsel's claim that some 2 years later, following the shotgun episode, PMA seized
upon that incident as a means of securing Mahoney's deregistration because of the
picketing affair more than 4 years earlier.
PMA has, as Cornell testified, a coastwide policy of trying to maintain a peaceful
waterfront and of protecting its hiring facilities from disorder, and the dispatch
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel stationed there from violence or fear of it. One may reasonably conclude
that the thrust of its deregistration action against Mahoney in March 1961 was to
apply that policy. Certainly, that conclusion is at least as consistent with the
evidence as a belief that it had any of the ulterior motives the General Counsel
attributes to it, and if that is the situation, the General Counsel has failed to carry
the burden of providing his case by evidence of preponderant weight.
In sum , much as one may personnally regret :the curtailment of Mahoney's long-
shore employment opportunities as a result of the deregistration, the evidence impels
a conclusion that the General Counsel has not established that the deregistration
stemmed from unlawful motives rather than from a design by PMA to protect its
hiring facilities from violence, the fear of it, and disorder. Accordingly I shall
recommend dismissal of the complaint.10
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. Local 19 and the International are, and have been at all times material to this
proceeding, labor organizations within the meaning of Section 2(5) of the Act.
2. Pacific Maritime Association is, and has been at all times material to this
proceeding, an employer within the meaning of Section 2(2) of the Act.
3. The record does not establish that the Respondent has engaged in the unfair
labor practices imputed to it in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the entire
record in this proceeding, it is recommended that the Board enter an order dismissing
the complaint.
10 Section 16(a) of the collective-bargaining agreement, which prescribes the grievance
machinery, contains a proviso that the Coast Committee has no "power to review decisions
relative to the methods of maintaining registration lists, or the operation of hiring halls."
Section 16 ( g) provides that " ( n)othing in this section ( 16) shall prevent the parties from
mutually agreeing upon other means of deciding matters upon which there has been
disagreement." The issues here require no determination as to the power of the Coast
Committee to review or take the action it did with respect to Mahoney . The results here
would be the same whether or not its action was ultra vires, and by reaching the conclu-
sions set forth above, I intend no implication that I have passed on the reach of the
Coast Committee's review or other authority in Mahoney 's case.
General Instrument Corporation and Local 472, International
Union of Electrical , Radio and Machine Workers , AFL-CIO.
Case No. 22-CA-1292. December 10, 1962
DECISION AND ORDER
Upon a charge and first amended charge filed by Local 472, Inter-
national Union of Electrical, Radio and Machine Workers, AFL-CIO,
herein called Local 472, the General Counsel of the National Labor
Relations Board by the Regional Director of the Twenty-second
Region issued a complaint dated August 3, 1962, against General
Instrument Corporation, herein called Respondent, alleging that Re-
spondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and (5)
and Section 2(6) and (7) of the National Labor Relations Act, as
140 NLRB No. 6.