Pacific Maritime Association

National Labor Relations Board - Board Decisions

Nov 29, 1965

155 N.L.R.B. 1231 (N.L.R.B. 1965)

PACIFIC MARITIME ASSOCIATION 1231
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board,
we are posting this notice to inform our employees of rights guaranteed to them by
the National Labor Relations Act:
WE WILL NOT discharge any of our employees because they engage in activ-
ities on behalf of International Brotherhood of Electrical Workers, Local Union
No. 278, AFL-CIO, or any other labor organization.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice and to engage in union
activities, or not to join a union and not to engage in such activities.
WE WILL offer George Arnold, Jr., W. C. Blackwell, A. O. Bullock, L. E.
Douglass, Jr., Dalton McCain, and A. L. McDonald immediate and full rein-
statement to their former jobs, or equivalent ones, and pay them backpay to
cover the earnings which they lost because we discharged them.
All of you are free to become or remain, or to refrain from becoming or remaining,
members of International Brotherhood of Electrical Workers, Local Union No. 278,
AFL-CIO, or any other labor organization.
H. B. ZACHRY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-If any of the above-named employees should currently be serving in the
Armed Forces of the United States, we will notify him of his right to full reinstate-
ment upon application after discharge from the Armed Forces, in accordance with
the Selective Service Act and Universal Military Training and Service Act of 1948,
as amended.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any material.
If the employees have any questions concerning this notice or whether the
Employer is complying with its provisions, they may communicate with the Board's
Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas,
Telephone No. Capital 8-0611, Extension 296.
Pacific Maritime Association and Johnson Lee, James Cagney,
Wilbert Howard, Jr., Adrian McPherson , Kenneth Vierra
International Longshoremen 's and Warehousemen 's Union, Local
No. 10 and Johnson Lee, James Cagney, Wilbert Howard, Jr.,
Adrian McPherson , Kenneth Vierra. Cases Nos. 20-CA-2787,
20-CA-2788, 20-CA-2796, 20-CA-92796-2, 20-CA-2796-3, 20-CB-
1121, 20-CB-1122,20-CB-1124, 20-CB-1124-2, and 20-CB-1124-3.
November 29,1965
DECISION AND ORDER
On May 4, 1965, Trial Examiner Herman Marx issued his Decision
in the above-entitled consolidated proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondents each filed
exceptions to the Trial Examiner's Decision and a brief in support
155 NLRB No. 117.
1232 DECISIONS _OF .NATIONAL LABOR RELATIONS BOARD
thereof ; the. General Counsel filed cross=exceptions to the- Trial Exaini
iner's Decision and a brief in- support thereof; and, each of the
Respondents also filed answering briefs -in response to the General
Counsel's. cross-exceptions. -
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the - ational Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made-
at-the hearing and finds that no prejudicial error was cominitted. The
rulings are hereby affirmed. The. Board has considered the Trial
Examiner's Decision, the exceptions, cross-exceptions, briefs and.
answering briefs, and the entire record in this case," and hereby adopts
the findiigs, conclusions, and recommendations of the Trial Examiner
only to the extent consistent herewith.
The essential facts, as more fully set forth by the Trial Examiner,
are not materially in dispute. The Respondents, acting through a
Joint Port Labor Relations Committee (here-in called the Port Com-
mittee), jointly maintain and operate a central dispatching hail for
the hiring and dispatching of all longshoreman at the port of San
Francisco 2 In connection therewith, the Respondents also maintain
two lists of registered long horerlen at the port ; i.e., fully registered or
class A, and limited registered or class B, longshoremen.3 -
1 Because in our opinion the entire record, including the exceptions and briefs, ade-
quately set forth the issues and positions of the parties, the Respondents' request for oral
argument is hereby denied. -
sPacific Coast Longshore Agreement, _1961-66, provides, inter alma:
Sec. 8.1 The hiring and dispatching of all longshoremen shall be through hall&
maintained and- operated jointly by the [ILWU and Ph[A] in accordance with the-
provisions of Section 17 . . . . There shall be one central dispatching hall in each
of the ports . . . . All expense of the dispatching halls shall be borne one-half by-
the local union and one-half by the Employers.
Any longshoreman who is not a member of the Union shall be permitted to use the-
dispatching ball only if he pays his pro rata share of the expenses related [there-
to] . . . . The amount of these payments and the manner of paying them shall be-
fixed by the [Port Committee]. - -
Sec. 17.11 The parties shall establish and maintain, during the life of this Agree-
ment, a Joint Port Labor Relations Committee for each Port affected by this Agree-
ment . . . . Each of said labor relations committees shall be comprised of three or-
more representatives designated by the Union and three or more representatives
designated by the Employers ... .
Sec. 17.12 The duties of the Joint Port Labor Relations Committee shall be: To-
maintain and operate the dispatching hall. To exercise control of the registered lists
of the port, as specified in 8.3 . . . .
8 Section 8.31 of the agreement provides, inter alia:
The [Port Committee] . . . shall exercise control over registered lists in that port,
including the power to make additions to or subtractions from the registered lists a -"
may be necessary. [Emphasis supplied.]
g R g # 3. R t
See. 8 41 First preference of employment and dispatch shall be given-to fully regis-
tered longshoremen . . . . A similar second preference shall be so, given to limited'
registered men. - -
PACIFIC A ARITLXIE 'ASSOCIATION 1233
Pursuant to applicable contract provisioi s ,4 and in order to meet'
the needs of the industry, the parties agreed early in 1963 to transfer-
some 400 to 450 of the approximately X30 limited registered longshore-
men then on the class B list to fully registered class A status and to,
eliminate - the class B list . Implementing this decision , the Respond-
ents jointly adopted standards to guide their selection of the most
qualified men for transfer , based upon the employees' total employ-
ment record as class B registered longshoremen . Thereafter, the-
Respondents notified all class B men of the decision to effect transfers,-
and invited them all to apply therefor . Under the criteria, thus
established, some 450 men were transferred to the . fully registered
class A list , and the approximately 80 men , including the Clarging-
Parties, who failed to satisfy one or more of said standards, were-
deregi stere-d. -
The alleged unfair labor practices ins of e only one of the qualifica-
tions for transfer-the so-called "credit" or "late-payment" standard-
adopted by the Responden_ts.5 This standard, which each of the-
Charging Parties admittedly failed to meet, disqualified all applicants
who had been late eight or more times in making their "pro rata."
payments 6 or who had been late six or more times and had an other-
wise blemished record.
In a recent case dismissing alleged Section 8 ( b) (2) and 8(a) (3)'
violations based upon a union rule restricting the rights of a class-
of unit employees , it was held ". ... that the true purpose or real
motivation of the respondent-union , and not auxiliary side effects,
constituted the test of lawfulness ." The principles of that decision -
are applicable to the facts of this case. In the instant proceeding, the'
"true- purpose or real motivation" of the Respondent Union was meet-
ing the industry's increasing needs for a. greater number of steady-,
highly qualified , and responsible longshoremen by affording fully-
registered status to the most qualified of the limited registered long-
shoremen and abolishing the class B list. To that end, the Respond-
ants jointly promulgated guides for the selection of the best qualified
employees from the lessor priority class for transfer to the greater
priority class , which had the incidental or "auxiliary side effect" of
causing the deregistration of those who failed to qualify for transfer.
- 4 See footnote 3, supra., section 8.31. Section 8.33 provides:
Either party may demand additions to 'or subtractions from the registered lists as-
may be necessary to meet the needs of the industry.
5 In view of our findings with respect to the credit standard, it is unnecessary to decide,
as did the Trial Examiner , how many of the other standards . which were not alleged,
herein to be improper , each of the Charging Parties failed to meet. Consequently , we also
find it unnecessary to consider and pass upon the merits of the Trial Examiner's "mixed-
motive" rationale. - -
5 See footnote 3,- supra, section 8.31 of longshore agreement.
7 Chicago Federation of Musicians, Local 10 , American Federation of Muaieians (Shieid+
Radio & T.V. Production, Inc.), 153 NLRB 68 ( TAD), and cases cited therein.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We disagree with the Trial Examiner that. the disparate enforce-
ment of the credit standard (i.e., applying it to class B and not to class
A registered longshoremen) was unjustified by any considerations
xelevant to the difference in their status. The two registered lists
were, in fact, established with the express purpose of creating different
rights and obligations for employees in each category. As the employ-
,ees' standing within the two classes differed, it is not unreasonable
that this difference also be. reflected in the qualifications required for
registration. Nor must these qualifications be limited to physical
.standards, for as in the instant case, the parties, in their broad dis-
cretion, may also require character references in order to meet their
,objective of selecting the most qualified of a group of employees.8
In that connection, a person's credit standing, which reflects upon
his character, may well be reasonably related to his performance as a
responsible employee-.
As stated in the Shield Radio case, it is not the Board's function
to-weigh the wisdom of the union's stated objective9 Nor is it the
Board's function to substitute its judgment far that of the parties in
selecting the. yardstick with which to measure a longshoreman's
qualifications for admission to fully registered status.' The most that
the Board can do in that connection is to determine, i3, light of all
surrounding circumstances, whether the asserted objective, or the
manner of its accomplishment, was pretextual. in the instant case, no
contention of unlawfulness was made with respect to the contract
provisions authorizing the establishment and maintenance of lists of
registered longshoremen and providing different rights, obligations,
and penalties for the employees in each category.1° Nor was it con-
tended that the Respondents' decision to transfer only qualified, rather
than all, class B men to the A list, and to abolish the B list,il was
In Ford Motor Company v. Huffman, 345 U . S. 330, 338, the Supreme court stated:
Inevitably differences arise in the manner and degree to which the terms of any
negotiated agreement affect individual employees and classes of employees . The mere
existence of such differences does not make them invalid . The complete satisfaction
of all who are represented is hardly to be expected . A wide range of reasonableness
must be - allowed a -statutory bargaining representative in serving the unit it repre-
sents, subject always to complete good faith and honesty of purpose in the exercise of
its discretion.
s Shield Radio & T.V. Productions , Inc., supra (TgD).
10 Section 17.85 of the Pacific Coast Longshore Agreement specifically provides: -
The rules and penalties provided hereinabove shall he applicable to fully registered
longshoremen and, except where a more stringent rule or penalty is applicable pur-
suant to 17 .851, to limited registered . . . longshoremen.
Section 17.851 states:
More stringent rules and penalties than those provided hereinabove that are ap-
plicable to limited registered longshoremen . . . may be adopted . . . and, -- . that
are provided in existing and future local joint working, dispatching , and registration
rules and procedures or by mutually agreed practices shall be applicable.
n We consider as immaterial the fact that the parties -subsequently reestablished a list
of limited registered longshoremen. -
-PACIFIC MARITIME-ASSOCIATION 1235
unlawful. - It -was also not contended that the credit standard was
discriminatorily applied among the class B applicants who sought
transfer to class A status,12 or that the standard was established for
an ulterior or-pretextual purpose of singling out the Charging Parties
for deregistration. In fact, the contrary was conceded on the record,
and we so find. Nor can we- say that in light of all surrounding air
cumstances, the credit standard is so grossly unrelated to the asserted
objective as to warrant an implication of pretext.
In view of the above, we find that the Respondents, by adopting and
applying the credit standard, for the selection of ' applicants for fully
registered class A status, did not violate Section 8(b) (1) (A) and
8 (a) (1) of the Act. Accordingly, we shall dismiss the complaint in its
entirety.
[The Board dismissed the. complaint.]
12 The Trial Examiner considered as immaterial, and unnecessary to decide , whether that
standard was uniformly enforced among all class B men, For the reasons set forth, we
disagree with that conclusion.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
The complaint alleges, in substance , that the Respondents , Pacific_ Maritime Asso
ciation, herein called PMA, an association of employers, and a labor organization
named International Longshoremen's and Warehousemen 's Union, Local No. 10,
herein called Local 10, exercise joint control over the registration of employees for
the performance of work for members of PMA; that registrants make payments
known as "pro rata shares" to Local 10 for its use; that the Respondents have dereg-
istered five employees because of prior arrearages in such payments , although they
were not in arrears at the time of the deregistration ; and that by such conduct, Local
10 has violated Section 8 (b)(1)(A) of the National Labor Relations Act, as
amended,' and PMVIA has violated Section 8(a)(1) thereof .2 Each Respondent has
filed an answer which, in material substance , denies the commission of the unfair
labor practices imputed to it in the complaint.
Pursuant to notice duly served by-the General Counsel upon each of the parties,
a hearing upon the issues in this proceeding was held before Trial Examiner Herman
Marx at San Francisco, California. The General Counsel and the Respondents
appeared through, and were represented by, respective counsel. All parties were
afforded a full opportunity to be heard , examine and cross-examine witnesses , adduce
evidence, file briefs, and submit oral argument . I have read and considered the
briefs filed with me since the close of the hearing by the General Counsel -and each
of the Respondents , and proposed findings and conclusions of law submitted by
PivfA.3 -
1 29 U.S.C. Sec . 151, et seq ., herein called the Act.
8 The complaint was issued on April 2 , 1964. and is based on a charge filed with the
National Labor Relations Board against each Respondent by each of the five employees.
The respective charges in Cases Nos. 20-CA.-2787 and 20-CA-2788 and Cases Nos. 20-
CB-1121 and 20-CB-1122 were filed on July 25. 1963 ; in Cases Nos. 20-CA-2796 and
20-CB-1124 on August 5, 1963; in Cases Nos. 20-CA-2796-2 and 20-CB-1124-2 on Sep-
tember 26, 1963; and in Cases Nos. 20-CA-2796-3 and 20-CB-1124-3 on December 2,
1963. Each Respondent has been duly served with a copy of the complaint , and of the
charges respectively applicable to it. The said cases have been duly consolidated ' for
hearing.
3 Upon the basis of the findings and conclusions made below , each proposed conclusion
of law is rejected , and each proposed finding is accepted only to the extent that its terms
or substances are included in the findings made below , and rejected in all other respects.
212-809-66-vol. 155-79
1236 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, and from my observation of the witnesses, I make the.
following: -
FINDINGS OF FACT
1. NATURE OF PMA'S BUSINESS; JURISDICTION OF THE BOARD
PMA, which is organized as a California corporation, is an association of employers
variously engaged in stevedoring and shipping operations on the Pacific coast; main-
tains its headquarters in San Francisco, California; 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.
The members of PMA annually perform services valued in excess of $50,000 in
the transportation of goods and passengers between points in the State of California
and locations in other States and foreign countries. 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.
n. THE LABOR ORGANIZATIONS INVOLVED
Local 10 is an affiliate of international Longshoremen's and Warehousemen's
Union, herein called the International. Employees participate in both organizations;
and each exists, in whole or in part, for the purpose of dealing with employers con-
cerning terms and conditions of employment of employees, and is, and has been
at all- material tunes, a- labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The International is, and has been at all times material to the issues, the exclusive
bargaining representative, within the meaning of Section 9(a) of the Act, of a
bargaining unit consisting of longshoremen in the employ of the members of PMA
in the Pacific coast ports of the United States .4
PMA, as agent for its members, and the International, as representative of the
employees in the unit, and on behalf of its longshore local affiliate, including Local 10,
are parties to a collective-bargaining agreement dated June 16, 1961, prescribing
terms and conditions of employment of all employees in the unit. The contract,
with some modification not material here, is currently in effect and has been thus
effective at all material times.
The issues here focus on provisions of sections 8 and 17 of the contract dealing
with the hire and job dispatch of longshoremen, and on the administration of these
terms. Section 8 provides, among other things, that all longshoremen be hired and
dispatched "through halls maintained and operated jointly" by the International and
PMA; that there be a central dispatching hall in each port; that the expense of
operating the hall be shared equally by the International's local affiliate in the port
and members of PMA; that there be maintained in each port, for hiring and dispatch
purposes, a register of longshoremen; that "first preference of employment and dis-
patch" be given to "fully registered longshoremen" (known as class A men) in
accordance with prescribed rules and regulations, and "second preference . . . to
limited registered men" (known as class B men); and that "any longshoreman who
is not a member of the Union (International) shall be permitted to use the-dispatch-
ing hall only if he pays his pro rata share of the expenses related to the dispatching
hall."
Under section 17 of the contract, the given port dispatching hall is maintained
and operated by a body known as the Joint Port Labor Relations Committee, herein
called the Port Committee, consisting of three or more representatives designated by
the International and an equal number of the members of PMA. Such committees
-zee Shipowners' Association of The Pacific Coast, et al., 7 NLRB 1022, and Interna-
tional Longshoremen's and Warehousemen's Union, C.I.O., at al. (Pacific Maritime Associ-
ation) , 94 NLRB 388, 393, for the history of the international's representative status.
PMA is. and has been a substantial number of years, the successor, as bargaining agent,
of the employer organizations mentioned in the Shipowners' Association case, who for-
merly represented employers who are now members of PITA. In that connection,, see
International Longshoremen's and Warehousemen's Union, et al. (Waterfront Employers
Association of the Pacific Coast), 90 NLRB 1021, footnote 1. I take official notice of
the cited decisions for the purpose of making the relevant representation findings.
PACIFIC MARITIME ASSOCIATION 1237
are empowered by section 17 to "exercise control of the registered lists of (longshore-
men) of the port ," subject, under section 8, "to the ultimate control of the Joint
Coast Labor Relations Committee ," herein called the Coast Committee ), a body
with coastwide functions , consisting of representatives of the International, and of
PMA, in equal number ; and to "investigate and adjudicate all grievances and dis-
putes" in accordance with prescribed contractual procedures ; and by section 8 "to
make additions to, or subtractions from, the registered lists as may be necessary,"
and determine the amount and manner of payment of "pro rata shares " payable by
longshoremen as prescribed by section 8.
Local 10 and PMA jointly operate a dispatching hall for the port of San Francisco,
through the Port Committee. In connection with the facility, the Port Committee
maintains class A and class B registration lists and has done so for a substantial
number of years under the current and prior contracts between the International and
PMA. There are, and have been for some years, approximately 4,000 men on the
class A register, the number varying with additions to, or subtractions from, the list.
The class B list currently contains approximately 700 names, and like the class A
register, has been subject to fluctuations in the number listed . The B register con-
tains no members of Local 10 , and all members of that organization who are regis-
tered are on the A list .5 In accordance with the terms of the contract, and regula-
tions of the Port Committee , class B registrants at the San Francisco hall are
ineligible for dispatch to jobs until all class A men available have been dispatched .6
The San Francisco Port Committee has fixed the "pro rata share" payable by
class B registrants , charging $ 8 per month since some point in March 1963, and $6
per month prior thereto. These payments are made by the registrants directly to
Local 10, which levies and collects a fine of $1 for each day a B registrant is in
arrears. The labor organization defrays its portion of the cost of operating the
San Francisco dispatch facility from the "pro rata share" payments made to it by
the B registrants, and from the dues payments made by its members. Local 10 also
applies the term "pro rata" to such dues.?
The Port Committee has had in effect for some years so-called low-man-out reg-
ulations (General Counsel's Exhibit No. 5) which have the aim of providing an
equitable distribution of dispatch opportunities first among A registrants, and then,
from whatever is left, among those on the B list. For present purposes, it is enough
to note that rule 3 of the regulations prohibits dispatch of any registrant "unless he
is first signed in" on a prescribed sheet ; and that the low-man -out system requires
each longshoreman to make an accurate report of hours he has worked in jobs to
which he has been dispatched so that it can be determined at the hall what individual
has had the least amount of work within a given period and category and be accorded
preference of dispatch in the relevant category as low -man-out . Violators of the reg-
ulations are subject to penalties of "30 days off" for a first offense ; "6 months off"
for a second ; and cancellation of registration for a third.
5A witness , Tommie Jefferson Silas , who has been a member of Local 10's executive
board for the past 10 or 11 years, and of a subcommittee of the San Francisco Port Com-
mittee , known as the B list committee ( which performs functions in the administration of
the B list) for the past 4 or 5 years, was called by the General Counsel and gave testimony
to the effect that he knows of no class B registrant who is a member of Local 10. In view
of Silas' long tenure and experience as a union and Port Committee functionary, one may
fairly infer that if he knows of no Local 10 members on the B list, there are none, and,
conversely, that all members who are registered are on the A list. In fact, Silas also testi-
fied that he knows of no A registrant who is not a member of Local 10, volunteering, by
the way, that he had heard of one or two who have no union membership. The volun-
teered statement was stricken, but I note that about a dozen years ago, prior to the
establishment of the B list, the National Labor Relations Board found that there were
three registrants at the hall who were not members of Local 10 . International Longshore-
men's and Warehousemen's Union, Local 10, ILWU ( Pacific Maritime Association), 102
NLRB 907. 908. These apparently had full registration. In any event, the results in this
proceeding do not hinge on the question whether the A register consists solely of members
of Local 10.
6 The hall may also dispatch unregistered "casuals" after the A and B lists are ex-
hausted. That practice is not involved in the issues.
7 See General Counsel's Exhibits Nos. 6(a)-6(e), inclusive, which refer to payments owed
to Local 10 by its members as "pro rata." I note, also, that Silas testified that "late
payments by union members" posted by Local 10 at its union hall "might be referred to
as pro rata, but we refer to it as dues." From the delinquency lists in evidence as Gen-
eral Counsel's Exhibits Nos. 6(a)-6(e), I have no doubt that Local 10 does in the premises
what Silas says it "might" do.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Class B longshoremen are subject to deregistration for a variety of causes spelled
out in section 9(a) of regulations (General Counsel's Exhibit No. 3) of the San
Francisco Port Committee in effect since March 1958 (and described herein as the
1958 regulations ). Many of the grounds are not material here, and it will suffice
to note that a failure to make "pro rata share" payments is not, in terms, specified
as a cause for deregistration ; and that the stated grounds include "frequent (unex-
cused) failures to sign in" over a 3-month period, a failure by a B registrant to
make himself available for work or shifts to which he had been assigned, or "any
other cause" unrelated to union membership or activity or the lack thereof; and that
section 9(b) of the regulations requires that notification of deregistration be in
writing in "substantially" the form provided therein, and specify "particulars" of the
violations of "the applicable rules" upon which the deregistration has been based.
B. The deregistration
About the end of April 1963, the Port Committee, implementing a prior decision
of the International and PMA, formulated a program, in substance, that all B
registrants at the San Francisco hall were to be placed on the A list except those who
did not meet certain prescribed standards (referred to herein as the 1963 standards),
and these were to be deregistered altogether. The standards of material interest in
this proceeding were failure to report 10 or more hours under the low-man-out sys-
tem; two or more 30-day periods in which the registrant was available for work
less than 70 percent of the time ; and eight or more late payments of his "pro rata
share," or, alternatively, six or more if had an otherwise "blemished record." 8
In May 1963, the Port Committee afforded all class B registrants an opportunity
to make written application for class A listing and , as one may infer from the record,
approximately 530, all or almost all on the B list, did so. These included Wilbert
Howard, Jr., Johnson Lee, James Cagney, Adrian McPherson, and Kenneth Vierra,
the Charging Parties in this proceeding, each of whom had been on the class B list
since some point in 1959. A subcommittee of the Port Committee went over the
record of each applicant and the upshot of the program was that on June 17, 1963,
some 450 B registrants were transferred to the A list and the remainder, numbering
about 80, including the Charging Parties, were deregistered, each receiving a letter,
dated June 17, 1963, to the effect that he had been deregistered "for cause" in accord-
ance with section 9 of the standing regulations (General Counsel's Exhibit No. 3)
governing deregistration, and that he could seek rescission of the action, and to that
end secure a hearing by the Port Committee, upon written request therefor within a
prescribed time, supported by a demonstration that "there is no ground for deregis-
tration." Particulars of the "cause" were not specified, as required by section 9(b)
of the 1958 regulations, nor had any of the five Charging Parties been informed of
the 1963 deregistration standards at any time prior to his deregistration, or of any
proposed ground for the action taken against him.
During a 3-day period in July 1963, the Port Committee held some 80 hearings,
each separately involving the deregistration of a class B longshoreman the previous
month. Lee, Cagney, Howard, McPherson, and Vierra were among those who
appeared, each having requested an opportunity to do so. Only the hearings of these
five men are material here, as the legality of the other deregistrations is not within
the issues, and was not litigated.
A prepared statement was read to each of the five men at his hearing, advising
him, among other things, that he would be informed there "in detail" of the charges
upon which his deregistration had been based; that the Committee understood that
"union representatives" had formally given each deregistered longshoreman who
had sought information "a descriptive statement" of the facts upon which his dereg-
istration had been based "and an opportunity to go over (them) with the union
representatives"; that the Committee understood that each deregistered longshore-
man had "been given such information and opportunity"; and that in the event that
he had had no such information or had been denied an opportunity to discuss "the
factual details with the union representatives," a continuance would be granted him
"to answer the factual details involved," upon his request and proof by him that
despite "efforts to obtain information as to the facts," he had had no chance to
prepare for the hearing.
The notification of deregistration sent to each of the Charging Parties had said
nothing about any "opportunity" to discuss the basis of his deregistration with "union
representatives" or anybody else prior to his hearing, and, as John Trupp, a PMA
S Intoxication and pilferage were also formulated as standards for denying transfer to
the A list and requiring deregistration, but were not involved in any of the deregistrations
in issue here , and are thus not material.
PACIFIC MARITIME ASSOCIATION 1239
member of the Port Committee, testified, the Committee itself had not, at any time
prior to the hearing, informed any of the five men of the "cause" of deregistration.
Also, it does not appear that at any time before such hearing, Local 10 or any of its
representatives had taken the initiative to inform the longshoreman concerned of
the basis for his deregistration; nor that any of the five, with the exception of Lee,
had sought such information from the Union or any of its representatives.9 At least
some information as to the basis for deregistration was given each of the five men
at his hearing, but, as will presently appear, there is conflict in the evidence as to what
some were told.
What took place at Lee's hearing is not in material dispute. A PMA member of the
Port Committee informed him that the reason for his deregistration was that he had
been late in his "pro rata share" payments 10 (or 11) times, but that PMA had no
"charges" against him, and that they had been made by Local 10. Actually, Lee had
been late in his payments 11 times, but these had all occurred prior to some point in
April or May 1962, when he paid his last arrearage fine, as established by Local 10's
entries in his "union book," which Lee exhibited to the Committee. There is no
dispute that Lee was deregistered solely because of his late payments prior to April
or May 1962, notwithstanding the fact that he was not in arrears at the time of his
deregistration, and had been current for over a year.lo
There is also no controversy that the deregistration reasons given Howard at his
hearing were that he had been late in his payments on 12 occasions, had failed to
report 29 hours of work as required by the low-man-out regulations, and had on 8
occasions violated rule 3 of these regulations, forbidding dispatch of a registrant
"unless he is first ( properly ) signed in ." Howard had , in fact , made late payments on
12 occasions , like Lee, he had been long current in his payments , having last been in
arrears in February 1962 and paid all fines levied against him up to that point. It
may be noted , too, that rule 3 violations are not included in the 1963 deregistration
standards.11 In any case, although some uncontradicted testimony by Howard per-
suades me that the allegation of the number of unreported hours was inaccurate, and
should have been 11 or 12, the evidence establishes that he was deregistered on the
basis of the three reasons given to him.12
Vierra and McPherson had each been late 10 times in making their payments, and
each had been so informed at his hearing. Cagney was told that he had been late 11
times ( although stipulated evidence indicates , without materially affecting the issues,
that he was late 13 times ). Each of the three was current at the time of his deregistra-
tion, Vierra since April 1963, and McPherson and Cagney since early in May 1963.
e Lee had gone to PMA's office and had been misinformed by a PMA staff member that
his deregistration had "probably" been due to "nonpayment of union dues" and low-man-
out violations . Lee neither owed nor paid "union dues ," as he was not a member of
Local 10 ; he had long since paid all "pro rata" arrearages , having been current in his
payments for more than a year ; and he had neither violated the low -man-out regulations,
nor been deregistered for that reason . At the PMA representatives suggestion he went to
the "union hall" but could find no one there with responsible authority in the premises.
At a later date he spoke to a business agent of Local 10, but details of what was said do
not appear.
io Lee gave the Committee an explanation of his tardiness , which need not be detailed
here because it does not affect the results in this proceeding. I note , also, in passing, that
the General Counsel , in his brief ( p. 9), quotes James D . Edwards, a PMA member of the
Committee, who was present at Lee's hearing, as testifying that Lee was charged with 16
violations of rule 3 of the low-man-out regulations . The brief is in error , for Edwards
gave no such testimony , nor did he make any entry of such an allegation in notes he made
at Lee's hearing (PMA Exhibit No. 17).
n Read literally , rule 3 prohibits the dispatch of a registrant who is not properly signed
in, and it would thus seem that the violation is that of the dispatcher rather than of the
man dispatched . However , whether that interpretation is correct is unimportant, since
the end results here are the same whether or not one construes rule 3 as imposing a
prohibition upon the longshoreman dispatched.
32 Following Howard 's appearance before the Committee , as he testified without dispute,
representatives of Local 10 and PMA examined the relevant port committee records (which
were not produced at the hearing ) in his presence , and found that the unreported hours
were 11 or 12, instead of 29. 1 do not agree with a position of the General Counsel, in
his brief, that in view of the Respondents ' omission to produce the relevant records at
the hearing in this proceeding , there is warrant for a finding that Howard's unreported
hours were fewer than 10. For reasons that will appear , the number of such hours does
not affect the results in this proceeding, but passing that aspect of the matter, if the
General Counsel seeks a finding that the unreported hours were less than 10, the burden
of proof in that regard is obviously upon him.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no dispute that late payments were at least a factor in the deregistration of
Cagney, and that payment tardiness and omission to report hours under the low-man-
out system were factors in the deregistration of Vierra and McPherson , but there is
controversy whether each of the three was informed of one or more additional
grounds at his hearing . PMA offers a contention to that effect, resting on the testi-
mony of James D. Edwards , a member of PMA's staff and one of its representatives
on the Port Committee , who was present at all the hearings and made notes there on
a form for each of the men in question , entitled "Hearings on De-Registration of Class
B' Longshoremen ." Section 2 of the form is labeled "Reasons for De-Registration,"
and contains blank spaces for pertinent entries. At the bottom of the form are spaces
for the entry of the "Committee Decision." According to Edwards, the procedure that
was followed was that each member of the Committee "would handle one type of
violation," and he (Edwards) recorded the "reasons" for deregistration in the appli-
cable section 2 "as they were being read by someone else" (or, in other words, by the
committee member assigned to the given subject).
Section 2 of Vierra's form includes an entry that he had been on probation for
"non-availability ." McPherson 's form contains an alleged reason of similar purport,
and entries to the effect that he had failed to report 6th hours and had had 10 viola-
tions of rule 3 of the low-man-out regulations.13 Section 2 of Cagney's form includes
an entry to the effect that he had committed 16 rule 3 violations . The space for
"Committee Decision" is blank in all three forms.
Vierra and McPherson respectively deny, in substance , that they were given any
reason but late payments and failures to report hours of work ; and Cagney in effect
denies that he was informed of any reason but late payments.
The weight of the evidence , in my judgment , supports these denials . Each of the
three men gave circumstantially detailed testimony on the subject of the deregistration
reasons given him, quoting and identifying one or more union or management repre-
sentatives who mentioned any deregistration reason at his hearing. Edwards' testi-
mony, in contrast , is notably lacking in such detail , reflecting , on the contrary, such
generalizations as the assignment of one or another subject for handling for some 80
hearings to a given management or union representative , and identifying no com-
mittee member or representative as the one who actually expressed any given deregis-
tration reason to any specified longshoreman . This may be understandable in view
of the many hearings in which Edwards participated during the course of a few days,
but it does not alter the fact that his testimony is lacking in the respects indicated, or
that of the substantial number of port committee members who attended the hearings,
Edwards was the only witness called by either Respondent to testify on the subject of
the deregistration reasons given there to Vierra, McPherson , and Cagney.14
Nor am I able to accord controlling weight to Edwards' entries as evidence of the
deregistration reasons given them . Each of the three men, it may be noted, was
required by the Committee , upon completion of his hearing, to wait for some time out-
side the hearing room before he was told to leave. Edwards testified that he entered
the reasons in section 2 of each form as they were given, and that he did so while the
longshoreman involved was in the room , but he conceded that it "is possible" that he
"slipped up in making some of the entries ," and thus his own testimony raises the
possibility that some of the reasons reflected in the entries were not mentioned and
entered while the longshoremen in question were in the room . Upon my observation
of Edwards , it was clear to me that he has no independent recollection of the deregis-
tration reasons given any of the three men, and that what he was holding out in his
19 Actually , probation for nonavallability , entered on the Vierra and McPherson forms
as a deregistration reason , is not of itself within the 1963 standards . The relevant stand-
ard, as well as prior practice, provided for deregistration if there were two 30 -day periods
of requisite nonavailability. Trupp's testimony indicates that for nonavailability in one
such period, a man would be placed on probation or "forgiven ," as he put it , and deregis-
tered for a second such period . The fact that Vierra and McPherson were on probation
suggests that each had had only one 30 -day period of less than 70 percent availability, but
whether that is so or not , or whether the relevant deregistration ground entered in the
Vierra and McPherson forms was a departure from the 1963 standards , does not, for rea-
sons that will appear , affect the ultimate results in this proceeding.
14 Trupp , the only other PMA member of the Port Committee , in addition to Edwards,
to testify, was called initially by the General Counsel , and, under cross-examination, gen-
eralized about the deregistration reasons much to the same effect as Edwards , stating that
each of the approximately 80 longshoremen heard was "informed of the specific reasons
for his deregistration" ; but later Trupp stated that he has "no personal knowledge" of
the basis of the deregistration of any of the five longshoremen involved here, and "would
have to look in the records" to ascertain it; and it is evident that he has no independent
recollection of the deregistration reasons given any of the five at their hearings.
PACIFIC MARITIME ASSOCIATION 1241
testimony as his recollection regarding the entries was a conclusional construction
from them of what he believes took place rather than a description of what he actually
remembers.
As for the entries, it would seem obvious that, standing alone, they do not establish
that the reasons they encompass were actually given the men involved, and, what is
more, it is not only "possible" that Edwards erred in making some of them, but there
are objective indications of error in Vierra's case. The latter testified that he was
told at this hearing that he had made 10 late payments, and that testimony is sup-
ported by the fact that he had, in fact, been late 10 times. Edwards' relevant entry
is the somewhat cryptic statement "$60 pro rata." Edwards claims that the entry
reflects the amount of "fines" Vierra had paid for tardiness in payments, as reported at
his hearing as a reason for deregistration. The use of such fines, as distinguished from
late payments, as a basis for deregistration, like some of the reasons (such as alleged
rule 3 violations and McPherson's 61/z unreported hours) entered in various of the
forms, is manifestly a departure from the Committee's 1963 deregistration standards,
but, putting that aside, it is a pertinent fact that there is nothing about the entry "$60
pro rata" to indicate that it is a report of fines rather than of late payments. What
is more, no reason appears why anyone should have reported fines of $60 (which at
$1 a day could represent penalties for only two late payments) rather than another
figure such as, for example, $100, the total fines paid by Vierra, as reflected in his
"union book," for a period beginning in October 1961 and ending in April 1963.
(There are no figures in the record for any fines paid by him prior to that period.
He has neither owed nor paid any since.) Ten late payments by Vierra (nine at the
$6 monthly rate, and one, as indicated in the record, at the $8 rate) would have
amounted to $62, and it seems to me far more reasonable to believe that if someone
at Vierra's hearing did, in fact, refer to "$60 pro rata" as a deregistration reason, the
allusion was intended as a reference to the total amount of late payments, albeit
slightly inaccurate, rather than as a specification of his fines. It may be that a port
committee member or representative made a reference to $60 as the amount of fines
paid by Vierra, but if that is so the entry "$60 pro rata" is obviously incomplete.
Indeed, it is incredible that the individual who reported the "violation" did no more
than to say "$60,pro rata."
In sum, I credit the relevant testimony of the three longshoremen, finding, in sub-
stance, that the only reasons given Vierra and McPherson, respectively, were their
late payments and unreported hours, and that the only reason given Cagney was his
late payments.15
Following the hearings, the Port Committee notified each of the Charging Parties by
letter dated July 23, 1963, that it had decided "to reaffirm the determination made on
June 17, 1963 that you are deregistered." This letter, like that of June 17, gave no
specific reason for the deregistration. By force of his deregistration, each of the five
men is, and has been, denied the employment and dispatch opportunities he had
previously had as a result of his class B listing.
In October 1963, the Port Committee reestablished a class B register, on which
some 700 longshoremen were listed as of the time of the hearing in this proceeding.
The five Charging Parties are not on the register. Under standing regulations of the
Committee, the deregistration of each has the effect of precluding him from con-
sideration for registration on either the A or B lists.16
C. Discussion of the issues; concluding findings
In the interest of decisional clarity, it may be pointed out that the legality of the
denial of class A registration to the five longshoremen in question is not in issue in
this case, and that what follows is not to be taken as the expression of a viewpoint
as to the legal propriety of that course. What is in issue here, measured by the
boundaries of the pleadings, is the legality of the removal of the five men from the
class B register; and as to that, the essence of the General Counsel's position is that
"It is interesting to note that in contrast to the stress PMA now places on reasons
other than late payments as a basis for deregistration, its answer , undertaking to state
the basis for all five deregistrations in question, gives only one specific ground, apart from
the generalization of "just and sufficient cause," and that is that the five men "were
habitual credit risk problems to the industry," as evidenced, so the answer says, by their
late payments.
35 A requirement for consideration for class B registration is that the applicant must
not "have been previously . . . deregistered for cause" (General Counsel's Exhibit No. 4,
p. 1), and such deregistration precludes admission to the A list, since only B registrants
are eligible for class A registration (General Counsel's Exhibit No. 3, p. 4).
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the retrospective use of the late payments as a basis for each of the five deregistrations
abridged rights guaranteed employees by Section 7 of the Act, resulting in violations of
Section 8 (b) (1) (A) by Local 10, and of Section 8(a) (1) by PMA.
At the outset of consideration of the issue presented, it is necessary to define the
obligation of Local 10, in the relevant circumstances, to the five men when they were
in the bargaining unit represented by the International, and the interplay of that obli-
gation with Section 7 of the Act. In Miranda Fuel Company, Inc., 140 NLRB 181,
184-185, the Board, invoking the Supreme Court's conception of the bargaining obli-
gation of a representative under the Railway Labor Act to the represented employees,17
pointed out that a "statutory (bargaining) representative" under the National Labor
Relations Act must similarly accord "equal protection" to the interests of all in the
unit . This does not mean, as the Board noted, that the bargaining representative "is
barred from making contracts which may have unfavorable effects on some of the
[employees] represented," but that "differences in treatment must relate to `relevant'
differences." 18 The employees in the unit have a correlative right to "equal protec-
tion" by their statutory representative as part of their Section 7 "right" to "bargain
collectively through representatives of their own choosing." Describing the interac-
tion of the representative's obligation and the employees' "right," the Board, two
members dissenting , said in Miranda Fuel Company, Inc. (p. 185) :
. Section 7 thus gives employees the right to be free from unfair or irrele-
vant or invidious treatment by their exclusive bargaining agent in matters affect-
ing their employment . This right of employees is a statutory limitation on
statutory bargaining representatives , and we conclude that Section 8(b)(1)(A)
of the Act accordingly prohibits labor organizations , when acting in a statutory
representative capacity , from taking action against any employee upon considera-
tions or classifications which are irrelevant, invidious, or unfair ... [A] labor
organization as a statutory bargaining representative is not the same entity under
the statute as an employer ; for labor organizations , because they do represent
employees , have statutory obligations to employees which employers do not. To
the extent, however, that an employer participates in such union 's arbitrary action
against an employee , the employer himself violates Section 8 (a) (1) of the Act.
This would obtain , for example , where, for arbitrary or irrelevant reasons, a
statutory bargaining representative attempts to cause an employee's discharge
and the employer then becomes party to such violation of Section 7 rights by
acceding to the union 's efforts 19
Although Local 10 is not the statutory bargaining representative of the unit of
which the five longshoremen were members , it is nevertheless subject to an obliga-
tion , like the statutory representative , in respect to the maintenance and operation of
17 Conley v. Gibson , 355 U . S. 41, 45-46 ; William Beater Steele v. Louisville & Nashville
Railroad Co., etc., at at., 323 U.S. 192, 202 ; Brotherhood of Railroad Trainmen, et at. v.
Howard, et ai., 848 U.S. 768 , 773-774.
18 See Ford Motor Company v . Huffman , 345 U.S. 330, 337; Steele v. Louisville & Nash-
ville Railroad Co., supra, at 202.
30Unforcement was denied in N.L.R.B. v. Miranda Fuel Co., 326 F. 2d 172 (C.A. 2), but
not on the basis of disagreement with the doctrine quoted above. Of the three-judge panel,
one, Judge Medina, expressed disagreement ; a second, Judge Lumbard, found it unneces-
sary to consider the Board 's legal position since , in his view , the record did not support
the Board 's finding that the conduct of the union involved was based on "irrelevant, un-
fair or invidious reasons" ; and the third , Judge Friendly, dissenting, also reserved judg-
ment on whether the union had violated Section 8(b) (1) (A ), and the employer Section
8(a) (1), but stated that he would sustain the Board 's conclusion that the employer had
violated Section 8 ( a) (3), and that the union had caused the employer to do so , thereby
violating Section 8(b) (2). Since the court's disposition of Miranda, the same Board
majority has, in a number of cases , applied and reaffirmed the doctrine they expressed in
Miranda. See Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO ( The Business League of Gadsden ), 150 NLRB 312; Independent Metal
Workers Union, Local No. 10 (Hughes Tool Company ), 147 NLRB 1573; Galveston Mari-
time Association , Inc., et at., 148 NLRB 897. I do not agree with an intimation by Local
10 in its brief that the reach of these cases is limited to union discrimination that is
"racially motivated." It is obvious that each is an application of the Miranda doctrine,
the Board, in fact, expressly stating in Galveston Maritime (footnote 7) that "we adhere
to our previous decision ( in Miranda ) until such time as the Supreme Court of the United
States rules otherwise."
PACIFIC MARITIME ASSOCIATION 1243
the San Francisco dispatching hall, to abstain from taking any action against any
member of the unit, as the Board put it, "upon considerations or classifications which
are irrelevant, invidious or unfair." The nub of the matter is that the prohibitions
of Section 8 (b) (1) (A) apply not only to labor organizations, but to their "agents";
and that union participation in the maintenance and oeration of the hall is a com-
mon enterprise of both the International and Local 16,' in which the latter functions
as agent of the International in carrying out various union responsibilities under the
contract between the International and PAIA. By the terms of that agreement,
Local 10 bears one-half the cost of operation of the hall, defraying it from "pro rata
shares" and dues it collects from registered longshoremen. The union members of
the Port Committee are representatives of Local 10 and act "for" it on the Com-
mittee 20 but the power to appoint them resides, under the contract, in the Interna-
tional, and not in Local 10, and it is clear that the International has delegated its
powers to participate, through union designees on the Committee, in the maintenance
and operation of the Committee's dispatching facility, to Local 10. Actually, one
need not go much beyond the origin of the deregistrations to find the agency rela-
tionship, for its existence is evident in - the very fact that the representatives of
Local 10 and of PMA on the Port Committee formulated the 1963 standards and
effected the transfers to the A register and the deregistrations of those who were not
transferred under directives embodied in an agreement reached between the Inter-
national and PMA. In short, in participating in the deregistrations through its rep-
resentatives on the Port Committee, Local 10 acted as the agent of the International,
the unit's bargaining representative 21 -
The Respondents in effect view the establishment and application of the late pay-
went standard to the class B registrants as an expression of collective bargaining,
and PMA sees justification for the course taken in its conception that a class B
registrant "is under probation proving himself"; in its aim of securing intelligent,
honest, and capable men for longshore work; and in discussions between union and
PMA representatives, in the course of reaching agreement on the late payment
standard, that the "pro rata" assessment "is a very important bill for a man (class B
registrant, from the sense of Trupp's testimony) to pay," that such payment was
"necessary ... if he desired to, continue to work," and that if he "did not-pay this
type bill, he might be a poor credit risk."' But labor-management arrangements are
not necessarily crowned with virtue and legality simply because they are the product
of collective bargaining, as is made evident by 'the legion of reported cases dealing
with such matters as closed-shop and other unlawful union-security agreements; and
the obvious desirability of such aims as securing intelligent, honest, and capable
longshoremen, and avoiding "credit risks," and the right of management and labor
to seek realization of these goals through appropriate collective bargaining, are not
in dispute, nor do they meet the issue.- -
What is in point is whether Local 10, as agent of the unit's bargaining representa-
tive, denied the five men the "equal protection" due all members of the unit by par-
ticipating, through the union representatives on the Port Committee, in the use of
the fully paidup past arrearages as a basis for deregistration. The failure of Local 10
to accord such protection is established in ample ;measure. It appears perhaps most
vividly in Lee's case because he had been in good standing for more than a year
prior to his deregistration, and had committed no infraction of regulations apart
from his late payments (if these may be termed infractions), for which he had paid
the prescribed monetary penalties; but the underlying considerations that bring the
application of the late payment standard into question in his case apply withequal
force to the other four men.
The heart of the matter may be found in the contrast between the establishment
of the late payment standard for the B registrants, and its application to them, on
the one hand, and, on the other, the treatment accorded Local 10 members who have
n See, for example, P'iMA's Exhibits Nos. 6-7 and Union's Exhibit No. 2, which are copies
of minutes of meetings of the Committee. -
"I I note, in passing. that in International Longshoremen's and Warehonsemen's Union,
etc., Local 10 (Waterfront Employers Association of the Pacific Coast), 94 NLRB 1091,
the Board (at 1095), in a period when a prior contract was in effect. found that "in
matters relating to the San Francisco hiring hall" the International and Local 10 were
engaged ` in a common enterprise." Quite apart from that holding, the record here amply
establishes the "common enterprise'' and the agency relationship.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been delinquent in meeting their financial obligations for the maintenance and opera-
tions of the San Francisco dispatch facility, where they are class A registrants. The
total amount of late payments made by any of the five men in issue ranged from $62
in Vierra's case to about $80 in that of Cagney,22 whereas, in marked contrast, as
of March 3, 1964, each of about a dozen members of Local 10 owed substantially
more on their "pro rata" shares (not including fines), some owing hundreds of
dollars, and one, listed as in "jail," being indebted for $1,014 (General Counsel's
Exhibit No. 6a).23 The record does not establish the amount of the periodic con-
tribution required of members of Local 10, but, obviously, the arrearages in all or
most of the dozen cases represented accumulated "pro rata" obligations spanning
many months, and very likely some years in at least some instances, even if one
excludes three listed as in "jail." This is made evident by the fact that Local 10
posts as delinquent members who owe as little as $12 for "pro rata" (General Coun-
sel's Exhibit No. 6a).24 Moreover, a number who owed in excess of $150 as of
March 3, 1964, were still delinquent some five months later, as evidenced by records
of Local 10 (General Counsel's Exhibit No. 62),25 and there is no indication that
they have ever paid what they owed. But whether they have or not, as I infer from
the testimony of Edwards and Trupp (who holds a supervisory position with PMA
as its "labor relations administrator" and has been on its staff for about 18 years)
the San Francisco Port Committee has not deregistered any members of Local 10,
or class A registrants, including those mentioned above, either for delinquency in,
or late payment of, "pro rata" shares or dues, at least during the period of about
51/2 years between the time the five longshoremen involved here were placed on the
21Set forth below are the totals , in some cases approximated, of late payments, and of
fines reflected in the record , for each of the five men . Approximations are made necessary
because of discrepancies between late payment entries in the "union book" of the given
individual and the number charged against him at his deregistration hearing, or because
it is not clear, in the case of several late payments , whether the given amounts became
due while the required monthly payment was $6, or after the increase to $8 in March
1963. In case of discrepancy , I have used the probably more accurate "union book" fig-
ures, which are usually higher . Some fine totals may be incomplete because the record is
incomplete . In Howard 's case, the fine total is an estimate because the amount he paid
for an arrearage in December 1959 is not clear . In any event, all late payment approxi-
mations are close ; the fine totals are substantially those reflected in the record ; and what-
ever variances there may be do not alter the central point, discussed below , that sums
owed for "pro rata" by various members of Local 10 have substantially exceeded the total
late payments of each of the five deregistered men. The relevant figures for the five,
approximated as above , follow:
Name Total Late Payments Total Fines
Lee-------------------------------- $66---------------------------------------------- $43
Cagney--------------------------- $78 to $82 (number of $8 payments not clear) _ _ _ _ 17
Howard --------------------------- $72 ---------------------------------------------- 56
McPherson __________ _ ___ _______ ___ $72 to $76 (number of $8 payments not clear) - _ - _ 54
Vierra----------------------------- $62---------------------------------------------- 100
aw Two others listed in General Counsel 's Exhibit No. 6a are recorded by Local 10 as
being in "Jail," one owing $256, and the other $411, for "pro rata." All three men so
listed are not shown in the Union 's delinquency lists for subsequent months, but the
reason does not appear . Perhaps they paid ; perhaps they were dropped from union mem-
bership ; but, whatever the reason , one may safely infer from the size of the amounts
involved that they included arrearages of long standing, and it is evident from Edwards'
testimony that the Port Committee never deregistered them for nonpayment of what they
have owed.
24 It may be noted that one not listed as in "jail" owed $297, and another $238, for
"pro rata" obligations. I think it a reasonable inference that these "pro rata" debts were
accumulated over a period measurable in years.
25 Compare the amounts due as "pro rata" ( excluding "fines" ) from 0. E. Lindstrom, Joe
Medlin, William Daugherty, and It. L. Houston as listed in General Counsel's Exhibit No.
6a with the lumped amounts for "pro rata" and "fines" in General Counsel's Exhibit No. 6e.
PACIFIC MARITIME ASSOCIATION X245
class B register and the hearing in this proceeding.26 In short , the record amply
-warrants a conclusion , and I find , that the five men -,,,-ere deregistered upon a con-
sideration , the late payment standard , which is not, and never has been, applicable
to members of Local 10 and class A registrants, although some of these have owed
sues for "pro rata" much-in excess of the total of late payments made by each of
the five men.
Especially bearing in mind that all members of Local 10 registered at the hall
are on the A list, one could make a reasonable argument , I believe, that the contrast
in treatment constituted "discrimination '" within the purview of Section 8 (a) (3) and
8(b) (2) of the Act, but the complaint does not allege any violations of those sections,
and I make no determination whether the record spells out a violation of either
section. Nor is it necessary for the purpose of passing on the 8 (b) (1) (A) and
8 (a)( I) allegations of the complaint to determine whether the treatment accorded
the five men constituted "discrimination" within the meaning of Section 8(a)(3)
and 8 (b) (2) or was based upon any consideration of union activity or membership.
It is enough , as Miranda informs us , if the treatment was based on "irrelevant,
invidious or unfair" considerations . That view, it seems to me, is reinforced by the
recent decision of the Supreme Court in N.L.R.B. v. Burnup and Sims, Inc., 379
U.S. 21 , holding that an abridgement of Section 7 rights by an employer, and a con-
sequent violation of Section 8 (a) (1) , may arise irrespective of "the existence of an
antiunion bias." By logical projection , it appears to me, an employee 's Section 7
rights are similarly protected from restraint and coercion by a labor organization
irrespective of its motive or intent,
Applying Miranda, I reach the conclusion that the contrast between the treatment
given the five longshoremen and that accorded members of - Local 10, as described
above, was unjustified by any considerations relevant to their difference in registra-
tion status . Clearly, the common purpose of all "pro rata" payments , whether by
class B registrants or by members of Local 10 on the class A list, or whether termed
dues or not, is to help defray the cost of the hiring and dispatch facility for the
common end of providing employment opportunities for those in the bargaining unit
registered at the hall, whether on the A or B list, and whether or not members of
Local 10; and, obviously, the monetary obligations imposed "is a very important
bill to pay," whether by a union member of the , unit or a class B registrant. One
may agree that a longshoreman who does "not pay this type bill . . . might be a
poor credit risk," but why is that any more true of B registrants who have paid all
they have owed , albeit tardily 10 or more times over a period of about 4 years, than
of members of Local 10 on the class A list who have owed (and, for all that. appears
in some cases , still owe ) much more than the total late payments of any of the five
longshoremen ? A program of "decasualization," 27 PMA's goal of securing good
workmen, obviously an aim common to all employers , and allusions by a PMA
Edwards testified that during the period that he has been on the Port Committee, it
has never deregistered any member of Local 10 for late payment of dues. The record does
not establish how long Edwards has been in PML4's employ or a member of the Port Com-
mittee, but Trupp who has been on PMA's staff for many years and is obviously well
grounded in the history and operation of the registry system , ( testifying , for example, to
the organization of the "Class B Subcommittee" to process "the hiring of limited Class B
longshoremen in early 1959" ) testified that he has "no knowledge of any class A men being
deregistered for nonpayment of union dues" during the 4-year period preceding June 17,
1963. and knows of no deregistration, during the period, "of any class A man who is not
a union member ... for failure to pay his pro rata share." There is no claim by the
Respondents that any Local 10_ member or class A registrant had ever been deregistered
by the Port Committee for nonpayment of dues or "pro rata shares ," and Trupp's testi-
mony that he knows of no such deregistrition during the 4-year period, especially when
considered with Edwards ' testimony , amply warrants an inference that there had been
none at least since the registration of the five longshoremen in 1959.
' According to James Robertson ,- an officer of P11LA, "decasualization ", means equali-
zation of work and earnings . PMA, journeying back in time to the introduction of the
registry system in 1934, upon the recommendations of a Presidential commission, places
emphasis upon the system as a means of effecting "deeasualization " The history and
goals of "decasualzation" are of interest, but of no materiality here. Similarly, I find
ingermane Local 10's allusion , in its brief , to International Longshoremen 's ae.d are-
isouxemen's Union, etc. (F.toicard• Terminal), 147 E'LRB 359, and cases cited. where the
Board expressed approval of efforts by the International and PMA, through collective
bargaining, to meet the impact of mechanization upon the longshore work force
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witness (James Robertson) to class B registrants as "under probation" and "proba-
tionary types," supply no answer; 28 and the fact is that there is no rational ground
for regarding class B registrants, on the sole basis of late payments such as those
by the five longshoremen, as any more likely to be "poor credit risks" than the
members of Local 10 on the A list, with a history, previously described, of substan-
tially larger "pro rata" delinquency.
It begs the question, in my view, to make the point, as do the Respondents, that
the late payment standard was applied to all B registrants alike, or, as PMA argues,
that the five longshoremen were undeserving of transfer to the A list. The legality
of the refusal to transfer them to the A register is not within the issues, nor does
it matter that each B registrant was given equality of treatment with every other,
if Local 10 played a role in withdrawing employment opportunities from the five
longshoremen on the basis of an irrelevant and arbitrary consideration setting them
apart from other members of the bargaining unit not subject to it.
On that score, the sum of the matter is that Local 10, as agent of the International,
"is responsible to, and owes complete loyalty to, the interests of all whom it repre-
sents" (Ford Motor Company v. Huffman, 345 U.S. 330, 337); that that obligation
forbade it to agree to the withdrawal of employment opportunities from the five
longshoremen upon a ground solely applicable to class B registrants, unless it was
relevant to the differentiation in classes of registrants; that the use of the late pay-
ment standard as a basis for deregistering the five was not relevant to any permissible
differentiation between them, as class B registrants , and members of Local 10 on the
A list whose "pro rata" arrearages have been comparable or greater in amount, but
who have not been deregistered by the Port Committee either for such arrearages
or for belated payment of what they owed; and that thus Local 10, by agreeing,
through its representatives on the Port Committee, to the use of the late payment
standard as a basis for deregistration of the five men denied them equality with
other members of the unit in the protection of their interests, in matters affecting
their employment, upon an irrelevant, invidious, and unfair consideration 29
What has been said leads me to conclude that Local 10's role in the deregistration
of Lee was unlawful, but the question remains whether the use of one or more
grounds, apart from late "pro rata" payments, for the deregistration of each of the
other four men validates the action taken against them. Entering that area, one
encounters behavior by the Port Committee of at least questionable propriety,
including such conduct as the failure, in violation of its 1958 regulations, to specify
"particulars" of the cause of deregistration in the notification of the action sent to
each man; the departures by the Committee from its 1963 deregistration standards in
one or more respects in various of the cases (for example, the alleged rule 3 viola-
tions charged against three of the men,, and McPherson's failure to report 6V2 hours
of work); the omission to inform any of the men in question, prior to deregistration,
of the adoption of the 1963 standards; and the entries in the Port Committee's records
of purported grounds for the deregistration of Vierra, McPherson, and Cagney, of
28 The descriptions of class B registrants as "under probation" and as "probationary
types" have the earmarks of conclusions. Such a status is not spelled out in the contract
or any of the regulations governing registration. The fact that class A registrants have
preference in dispatch and that class B men may be deregistered for "cause" does not of
itself establish a probationary status for the latter. Under section 17.81 of the contract,
class A longshoremen are also subject to deregistration for prescribed cause. The descrip-
tives appear to me to be a matter of semantic choice, and the characterizations do not, in
my view, affect the results in this proceeding.
2P At a meeting of the Port Committee on July 16, 1963, Local 10 made proposals
(Union's Exhibit No. 2, p. 13), rejected by PMA, that men who had been deregistered sole-
ly for late "pro rata" payments, and had appealed, be reregistered and transferred to the
class A list, and that appellants who had been denied class A registration solely because
of low-man-out violations "be given 30 days off" and then placed on the class A register.
Both proposals suggest that Local 10 does not attach any real Importance to either the
late payment criterion or the low-man-out standard, standing alone at least, as a measure
for a man's qualification for the A list, let alone his removal from the B list. More to the
point, the proposal regarding the late payment standard serves to underscore the con-
clusion that its use as a basis for deregistration, In the face of the different policy applied
to delinquent members of Local 10, was unfair and arbitrary. Be that as it may, the pro-
posals do not change the results in this proceeding, since the deregistrations had already
taken place, and were subsequently confirmed by the Port Committee.
PACIFIC - MARITIME ASSOCIATION 1247
which they were - not informed at their respective hearings 30. Moreover, the record
in this case provides something less than certain documentation of the full reasons
for the action taken against Vierra, McPherson, and Cagney. Trupp and Edwards
were the only members of the Port Committee, who gave any testimony on the sub-
ject of deregistration reasons. Trupp did not specify any of the reasons- Edwards,
apart from his claim that his entries state the reasons given at the Committee's
hearings , specified only one-that Vierra had paid $60 in fines--and that, as previ-
ously pointed out, has the earmarks of error, reflecting not only on the accuracy of
Edwards' reporting, but, especially in the light of the credited evidence of what
Vierra, McPherson, and Cagney were told at their hearings, on the reliability of the
entries as a specification of the reasons for the deregistration of the three men.
Apart from these entries, there is actually nothing of any substance in the case of
either Respondent to define the precise grounds upon which any of the deregistra-
tions were based. - -
However, assuming , as I do for decisional purposes , that McPherson, Cagney,
Howard, and Vierra were deregistered for all the reasons respectively applicable to
them as reflected in Edwards' entries, and that one or more of the reasons, apart
from the late "pro rata" payments, could have constituted "cause" for deregistration
in other circumstances, Local 10's role in the deregistration of the four men, as in
the case of Lee, was nevertheless unlawful. For one thing, the unfair and arbitrary
treatment involved in the use of the late payment standard still remains as an
abridgement of the right of the men in question, under Section 7, -to "equal protec-
tion" in representation by their bargaining representative, irrespective of- the exist-
ence of any other cause for deregistration. For another matter, it is well established
that if a -discharge is based on both- a lawful reason and one made unlawful by the
Act, the dismissal is unlawful,31 and-by a parity of reasoning, the denial of employ-
ment opportunities to McPherson, Cagney, Howard, and Vierra, as a result of their
deregistration, could not be validated by the mixture of any other reason with the
late payment standard which, obviously, played at-least a substantial role" in the
action taken against each of the four men.
- For the reasons set forth, I find that Local 10, by its role in the deregistration of
McPherson, Cagney, Lee, Howard, and Vierra, restrained and coerced employees
in the exercise of a right guaranteed them by Section 7 of the Act, and thereby vio-
lated Section 8(b) (1) (A) of the statute.32 -
As for PMA, to say that as an employer, acting without regard to Local 10, it
could lawfully have denied employment to the -five longshoremen on any of the
deregistration grounds invoked is to talk about another case, one not within the
issues and -not decided here. This case has another dimension, to which Miranda
applies with evident force, and that is that the deregistrations were the joint product
of both Local 10 and PMA. The action-of each was integrally interwoven with that
of the other. In other words, PMA, 'acting in concert and collaboration with
Local 10, was a participant in the union's togtious act of inhibiting employees in the
exercise of a Section 7 guarantee, and thus, as I find, abridged that right, thereby
violating Section 8 (a) (1) of the Act 33 -
3D As the allegations of unfair labor practice in the complaint are, in . substance , limited
to the use of the late payment standard as a'basis for deregistration of the five -men, I
make no findings whether the Respondents in the process of deregistering the- men, tres-
passed on their Section 7 rights by any other conduct, including , specifically , the Port
Committee's departures from its 1963 deregistration standards.
n3.L.R.B. v. Whatin Machine Works, 204 F. 2d 883, 885 (C. A. 1). Y.L.R.B. v. James-
town Sterling Corp., 211 F. 2d 725, 726 (C.A. 2)
'
1VLR.B. v. Eleetn-c Stearn Radiator
Corporation, etc., 321 F. 2d 733, 738 (C.A. 6).
g=-Needless to say, as Section 10(a) of the Act provides in effect, the Board is not pre-
cluded by the grievance and arbitration provisions (section 17) of the contract from
asserting jurisdiction in this case, finding the unfair labor practices alleged , and providing
appropriate remedial relief therefor. It would be particularly undesirable for the Board
to stay its hand here, since the five longshoremen have no independent voice in the choice
of the arbitrator provided by the contract. See Local Union 469 of the United- Association
of Journeymen and Apprentices of the Plumbing and Pipeftting Industry (Assoerated
Plumbing, Heating and Piping Contractors of Arizona), 149 NLRB 39 and eases cited
33 In view of the reasons for the conclusions reached, I deem it unnecessary to pass on
positions by the General Counsel to the effect that because Local 10 had accepted the late
payments , the Respondents "waived" any right to deregister the men for such tardiness :
and that deregistration on such ground invaded a right of the men, under Section 7, to
use the hall, because the action exceeded any right by Local 10 to. charge "a reasonable,
nondiscriminatory referral fee" for such use. Cf. Local 825, International Union of Oper-
ating Engineers , AFL-CIO (H. John Homan Company ), 137 NLRB 1043
1248 DECISIONS OF X ATIONAL LABOR -RELATIONS BOARD
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 PMA and its members described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead'to labor disputes burdening and-obstruc-
ing commerce and the free flow of commerce. -
V. THE REMEDY
In view of the unfair labor practices found above, I shall recommend that each
Respondent cease and desist from its unfair practices and take affirmative action
designed to effectuate the policies of the Act.
Having found that the deregistration of Wilbert Howard, Jr., Johnson Lee, James
Cagney, Adrian McPherson, and Kenneth Vierra was unlawful, and that Local 10
has thereby violated Section 8(b) (1) (A) of the Act, and PMA Section 8(a) (1)
thereof, I shall recommend that Local 10 and PMA forthwith register, and direct
and cause their respective representatives on the Port Committee to make such
agreement as may be necessary to register, and to register, the said Howard, Lee,
Cagney, McPherson, and Vierra in the limited register, called the class B register
Or list in this proceeding, maintained by the Committee for, or in connection with,
The dispatching hall it operates, as described above, without prejudice to the seniority
and any other privileges and rights each of the named individuals had before his
deregistration, as found above, and that Local 10 and PMA jointly and severally
make each of the said individuals whole for any loss of pay he may have suffered
by reason of his deregistration between the date thereof and the date of the restora-
tion of his name to the hmited or class B register or list, as aforesaid, by payment
to him of a sum of money equal to the amount of wages he would have earned, but
for such deregistration, together with interest thereon at the rate of 6 percent per
annum; and that the loss of pay and interest be computed in accordance with the
formula and method prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, to which the parties
hereto are expressly referred 34
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 10 is, and has been at all material times, a labor organization within the
meaning of Section 2(5) of the Act.
34 With respect to Local 10's obligation to make good the wage losses of the five men in
the absence of a finding of "discrimination" within the meaning of Section 8 (a) (3), see
Pacific Coast Marine Firemen, Oilers, Watertenders and Wipers Association (Pacific Mart-
time Association.), 107 NLRB 593; Local 212 , International Unnnn, United Automobile,
Aircraft and Agricultural Implement Workers of America UAW -4FL-CIO (Chrysler Cor-
poration), 128 NLRB 952, enfd. 295 F. 2d 483 (C.A. 6) ; N.L.R.B. v. George W. Reed, 206
F. 2d 184, 189 (C.A. 9). I note that in United Furniture Workers of America., 010 et al.
(Colonial Hardwood Flooring Company, Inc.), 84 NLRB 563, the Board, although finding
that a union had violated Section 8(b) (1) (A) by using coercive means to prevent non-
strikers from working, held that it was without statutory power to require the labor orga-
nization to indemnify the employees for any loss of earnings suffered as a result of the
unlawful conduct. The Board has followed Colonial Hardwood in Local 983, United Broth-
erhood of Carpenters (Delbert Brown), 115 NLRB 1123, United Electrical, Radio and Ma-
chine Workers, Local 1412, at al. (Gardner Electric Manufacturing Company), 95 NLRB
391; and United Mine Workers of America, Di strict 23 , at al. (West Kentucky Coal Com-
pany, et al.), 92 NLRB 916. Colonial Hardwood and the cases that have followed it are
factually distinguishable from the case at hand, notwithstanding the Board's view in
Colonial Hardwood (at 565) that under Section 10(c) of the Act, "back pay may be re-
quired of a labor organization only where it is responsible for discrimination against an
employee." I do not read this as referring to "discrimination" within the meaning of Sec-
tion 8(a) (3), for such a reading would be incompatible with such cases as Pacific Coast
Marine Firemen, cited above. The word "discrimination" as used in Section 10(c) is, I be-
lieve, broad enough to include a labor organization's discriminatory conduct such as that
involved here. To read the term in the sense used in Section 8(a)(3) would lead to the
wholly inequitable result of holding PMA solely responsible for the wage losses arising
from tortious conduct in which Local 10's failure to accord the five longshoremen the
"equal protection" in representation due them was the central ingredient. I see nothing
in See*unn 10(c) either requiring or warranting such a result.
RED SPOT PAINT & VARNISH' CO., INC. 1249
2. Pacific Maritime Association is, and has been at all material times, an employer
within the meaning of Section 2 (2) of the Act.
3. Wilbert Howard, Jr., Johnson Lee, James Cagney, Adrian McPherson, and
Kenneth Vierra have been , at all times material here, employees within the meaning
of Section 2(3) of the Act.
4. By interfering with, restraining , and coercing employees in the exercise of a
right guaranteed them by Section 7 of the Act, as found above, Pacific Maritime
Association has engaged in unfair labor practices within the meaning of Section
S (a) (1) of the Act.
5. By restraining and coercing employees in the exercise of a right guaranteed
them by Section 7 of the Act, as found above , Local 10 has engaged in unfair labor
practices within the meaning of Section 8 (b)(1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication.]
Red Spot Paint & Varnish Co., Inc. and International Chemical
Workers Union , AFL-CIO . Cases NVos. 25-CA-2039 and 25-CA-
2175. November 30, 196.5
DECISION AND -ORDER
On August 24, 1965, Trial Examiner George A. Downing issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that Respondent had not engaged
in certain other unfair labor practices and recommended that the com-
plaint be dismissed with respect to such allegations. Thereafter,
the Respondent filed acquiescence and exceptions to the Trial Exam-
iner's Decision, and the General Counsel filed exceptions thereto and
a brief in support thereof as well as a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the Act-, the National
Labor Relations Board has delegated-its powers in connection with this
case to a three-member panel [Chairman McCulloch and Members
Fanning and Jenkins].
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- Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
IIn adopting the Trial Examiner 's finding that Superintendent Mentzel told a group
of employees ( including Bonnell ) that he had union meetings under surveillance, we do
not rely upon the fact that Respondent called none of the employees as witnesses to
support 3lentzel ' s denial of Bonnelrs testimony on this point.
155 NLRB No. 122.