Pacific Maritime Association

National Labor Relations Board - Board Decisions

Apr 28, 1950

89 N.L.R.B. 894 (N.L.R.B. 1950)

In the Matter of PACIFIC MARITIME ASSOCIATION, SUCCESSOR IN
INTEREST TO PACIFIC AMERICAN SHIPOWNERS ASSOCIATION, AND ITS
MEMBER COMPANIES and RADIO OFFICERS UNION, MARINE DIVISION,
COMMERCIAL TELEGRAPHERS UNION, A. F. L.
Case No. 20-CA-166.Decided April 28,1950
DECISION
AND
ORDER
On November 28, 1949, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in the above -entitled 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 copy of the
Intermediate Report attached hereto. Thereafter the Respondents,
the Intervenor, American Radio Association, CIO, and the General
Counsel filed exceptions and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs , and the entire record in the case, and
hereby adopts the findings , conclusions , and recommendations of the
Trial Examiner insofar as they are consistent with this Decision and
Order.
1. The Trial Examiner found, and we agree, that the mere execu-
tion of the contract here involved , which . contains discriminatory and
illegal union-security clauses, violated Section 8 ( a) (1) of the Act.
The Respondents contend in their brief that no finding of violation of
Section 8 (a) (1) should be made in this case, on the ground that the
Board would not find a violation of Section 8 (b) (1) (A) in'a
comparable case in which charges were filed against a union. No
charges have been filed against the A. R. A., the contracting union in
this case . In cases which have involved Section 8 (b) (1) (A) charges
against a union, the Board, on the basis of the language differences
89 NLRB No. 115.
894
PACIFIC MARITIME ASSOCIATION 895
in Section 8 (a)' (1) and Section 8 (b) (1) (A),1 and of the legislative
history of Section 8 (b) (1) (A), has concluded that Section 8
(b) (1) (A) was intended to eliminate physical violence, intim-
idation, and threats of economic action by unions against
employees.2 Thus, in Clara-Val Packing Company,3 where there were
charges filed against both the respondent employer and the respondent
union alleging the discharge of an employee caused-by enforcement of
a contract containing illegal union-security provisions, the Board
found that the discharge constituted a violation. of Section 8 (a) (1)
by the respondent employer and of Section 8 (b) (1) (A) by the
respondent union.. We therefore find the Respondents' general con-
tention of disparate treatment by the Board of employers and unions
in cases such as this to be without merit.4
. 2. Our finding of a violation of Section 8 (a) (1) in this case is
based solely upon the contractual provisions granting preference in
hiring to lnembers of the A. R. A.5 As these provisions go beyond the
conditions prescribed in Section 8 (a) (3) of the Act, and are therefore
illegals we find it unnecessary to consider either the closed-shop or
the hiring-hall aspects of this contract.
3. The Trial Examiner found that by executing and maintaining
the illegal contract, the Respondents discriminated in regard to the
hire and tenure of employment of their employees in 'violation of
Section 8 (a) (3) of the Act. The complaint alleged a violation of
Section 8 (a) (3) merely in the enforcement of the contract. In view
of the state of the pleadings, of the complete lack of evidence as to
enforcement of the illegal provisions, and of our opinion that we can
effectuate the policies of the Act by a remedial order based upon the
finding that execution of the contract violated Section 8 (a) (1), we
I The Respondents state in their brief that "Section 8 (a) (1) differs from Section 8
(b) (1) (A) by referring to interference , but this is of no practical importance." The
legislative history of Section 8 (b) (1) (A ), however, which is set out in National Mari-
time Union, 78 NLRB 971 (enfd. 175 it. 2d. 686, cert. denied 338 U. S. 954) shows that
this difference is of "practical importance ," and that it is therefore one of the bases for
distinguishing the two sections.
2 Seampruje Incorporated,. 82 NLRB 892 ; Smith Cabinet Manufactur jng, Company, Inc.,
81 NLRB 886 ; Perry Norvell • Company, 80 NLRB 225; Sunset Line and.•Twine Company,
79 NLRB 1487.
3 87 NLRB 703.
Member Murdock is disposed to reexamine the question whether a union which executes
a contract containing an illegal union-security clause does not thereby violate Section 8
(b) (1) (A) when that issue is next presented to the Board in a case involving charges
against a union . He does not believe , however , that , assuming arguendo that the Board
has not correctly resolved that issue in prior cases against unions , this precludes the
Board from making the finding in the instant case that the Employer has violated Sec-
tion 8 ( a) (1) by executing a contract containing an illegal union -security clause.
The contract provides , inter alia, that "when filling vacancies preference of employ-
ment shall be given to members of the Association [ the Intervenor herein]."
See American Export Lines , Inc., 81 NLRB 1370.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find it unnecessary to determine whether or not execution and mainte-
nance of the contract also violated Section 8 (a) (3). Accordingly,
we shall dismiss the complaint insofar as it alleges that the Respond-
ents violated Section 8 (a) (3) of the Act.
The Remedy
Having found that the contract of December 3, 1948, between the
Respondents and the A.. R. A. contains illegal union-security provi-
sions, it would not be sufficient, in view of the restraint imposed upon
employees by the existence of such provisions,7 merely to order the
eradication from the contract of the illegal provisions .8 The Trial
Examiner included in his recommendations a broad cease and desist
order. However, in view of our findings herein, we shall not adopt
this recommendation, but shall order the Respondents to cease and
desist from giving.effect to the. entire contract,' and from entering
into, renewing, or enforcing any agreement with the A. R. A. which
requires membership in the A. R. A. as a condition of employment,
unless such agreement is authorized as provided by the Act, or which
grants preference in hiring to members of the A. R. A.
ORDER
Upon the entire record in the case; and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Pacific Maritime
Association of San Francisco, California, its Member Companies, and
General Steamship Corporation, of San Francisco, California, and
each of them, and their officers, agents, successors, and assigns, shall
1. Cease and desist from :
(a) Performing or giving effect to their contract of December 3,
1948, with American Radio Association, C. I. 0.;
(b) Entering into, renewing, or enforcing any agreement with
American Radio Association, C. I. 0., (1) which requires its em-
ployees to join, or maintain their membership in, such labor organ-
ization as a condition of employment unless such an agreement has
v C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163.
B Cf. Julius Resnick , Inc., 86 NLRB 38. Our order there, which went further by requir-
ing withdrawal of recognition from the contracting union in addition to cancellation of the
entire contract, was based upon a finding that the illegal union -security provisions of the
contract constituted support to that union in violation of Section 8 (a) (2). In the
instant case, there is no charge or allegation of a violation of Section 8 (a) (2).
'Nothing in our order herein shall be deemed to require the Respondents to vary or
abandon any substantive provision of such agreement , or to prejudice the assertion by
employees of any rights they may have acquired thereunder.
PACIFIC MARITIME ASSOCIATION 897
been authorized as provided by the National Labor Relations Act, as
amended, or (2) which requires or grants a preference of employment
based upon membership in American Radio Association, C. I. 0.;
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at its office in San Francisco, California, and in the radio
shacks on all vessels owned or operated by the Member Companies
and by General Steamship Corporation, copies of the notice attached
hereto, marked Appendix A.10 Copies of said notice, to be furnished
by the Regional Director for the Twentieth Region, shall, after being
duly signed by the Respondents' representatives, be posted by the
Respondents immediately upon receipt thereof and maintained for a
period of sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to the employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other
material; and
(b) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) 'days from the date of this Order, what steps
the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondents discriminated against their employees within the
meaning of Section 8 (a) (3) of the Act, be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
AVE, WILL CEASE performing or giving effect to our contract
dated December 3, 1948, with AMERICAN RADIO ASSOCIATION,
C.I.O.
WE WILL NOT enter into, renew, or enforce any agreement with
AMERICAN RADIO ASSOCIATION, C. I. 0. (a) which requires our
employees to join, or maintain their membership in, such labor
organization, unless and until such an agreement has been au-
thorized as provided in the National Labor Relations Act, as
10 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted in the notice, before the words, "A DECISION AND ORDER ," the words,
"A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
898 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
amended, or (b) which grants a preference in hiring to members
of AMERICAN RADIO ASSOCIATION, C. 1. 0.
PACIFIC MARITIME ASSOCIATION,
By ----=---------------------------
.(Office)
-------------------------------
(Member Company)
By --------------------------------
( Office)
Dated ------------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
Eugene K. Kennedy, Esq., for the General Counsel.
Messrs. Brobeck, Phleger & Harrison, by Samuel L. Holmes, Esq., of San Fran-
cisco, Calif ., for the Respondents.
Messrs. Ross & Jennings, by John 'Paul Jennings, Esq., of San Francisco, Calif.,
for the A. F. L.
Jay A. Darwin, Esq., of San Francisco, Calif., for A. R. A.
STATEMENT OF THE CASE
Upon a third amended charge filed January 31, 1949, by Radio Officers Union,
Marine Division, Commercial Telegraphers Union, A. F. L., hereinafter referred
to as A. F. L., the General Counsel' and the Board, by the Regional Director for
the Twentieth Region (San Francisco, California), issued a complaint dated
January 31, 1949, against Pacific Maritime Association,' successor in interest to
Pacific American Shipowners Association,' and its Member Companies,' herein-
after referred to as the Respondent and Member Companies respectively, alleging
that Respondent and the Member Companies had engaged in, and were engaging
in, unfair labor practices affecting commerce within the meaning of Section 8
(a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act,
as amended (61 Stat. 136), herein called the Act. Copies of the complaint, third
amended charge, and notice of hearing were duly served upon Respondent, Mem-
ber Companies, A. F. L., and American Radio Association, C. I. 0., herein re-
ferred to as A. R. A.
With respect to the alleged unfair labor practices the complaint alleged, in
substance, that (1) on or about December 3, 1948, the Respondent, for and on
behalf of the Member Companies, executed with A. R. A. a collective bargaining
agreement not in conformity with the requirements of Section 8 (a) (3) of the
Act, and (2) by the execution, and the enforcement, of said contract, they inter-
1 This term includes counsel appearing at the hearing for the General Counsel.
2 See footnote 3.
3 The parties stipulated to this Amendment at the hearing because Pacific American
Shipowners Association was replaced by Pacific Maritinle Association on June 3, 1949.
4 These Companies are listed in Appendix A attached hereto.
PACIFIC MARITIME ASSOCIATION 899,
fered with, restrained, and coerced the employees of Member Companies in viola-
tion of Section 8 (a) (1) and (3) of the Act.
Thereafter the Respondent and the Member Companies filed an answer admit-
ting certain allegations of the complaint but denying that they had engaged in,
or were engaging in, any unfair labor practices.
Pursuant to notice the hearing began at San Francisco, California, on August
16, 1949, before A. Bruce Hunt, the Trial Examiner duly designated by the Chief
Trial Examiner. Although the hearing was opened at this time, it became neces-
sary to recess the hearing until August 30, 1949. At that later date the hearing
was reopened at San Francisco, California, before the undersigned Trial Exam-
iner duly appointed by the Chief Trial Examiner. The General Counsel, the
Respondent,` A. F. L., and A. R. A. were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was afforded all
parties. At the hearing counsel for A. it. A. orally stated what the answer of
A. R. A. would be and thereafter filed a written answer in conformity thereto,
which answer is hereby ordered marked as A. R. A. Exhibit 1 and made a part
of the record herein. At the conclusion of the hearing and after all parties had
rested, counsel for the Respondent and counsel for A. R. A. moved to.dismiss the
complaint on the grounds of a failure of proof. This motion was reserved by the
undersigned and is disposed of by the recommendations hereinafter made. The
parties waived oral argument at the hearing. Briefs have been received from
all parties except the General Counsel.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND RESPONDENT MEMBERS
Pacific Maritime Association is a nonprofit California corporation which,
includes among its purposes collective bargaining and the negotiation of labor
contracts on behalf of its Member Companies whose names are set forth in
Appendix A attached hereto. General Steamship Corporation, which was one of
the Member Companies at the time of the execution of the contract here at issue,
subsequently withdrew therefrom on June 24, 1949. Said Pacific Maritime Asso-
elation operates no vessels and employs no radio operators. All the steamship
companies represented by the Pacific Maritime Association are engaged in the
operation of ocean-going passenger and/or cargo vessels between various United
States ports and United States territorial ports or foreign ports. The gross busi-
ness of said companies from July 1, 1947, to June 30, 1949, exceeded $215,000,000.
During the same period the companies transported in excess of 3,000,000 short
tons of cargo. Said Respondent Member Companies are presently operating
approximately 250 ocean-going vessels.
The Respondent admits that it is engaged in interstate commerce within the
meaning of the Act and the undersigned so finds.
6 Counsel for Respondent also represented the Member Companies except for General
Steamship Corporation which company was not represented at the hearing although duly
served with copies of the complaint, amended charge, and notice of hearing.
889227-51-vol. 89-58
goo DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
. Radio Officers Union, Marine Division , Commercial Telegraphers Union , A. F. L.,
is a labor organization admitting to membership employees of the Respondent
members. It is affiliated with the American Federation of Labor .6
American Radio Association , affiliated with the Congress of Industrial Organi-
zations, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
From September to December 1948, shipping and water -front activity on
the Pacific Coast ceased because of a strike of the water-front and seafaring
unions.
On December 3, 1948, approximately at the conclusion of this strike, the
Respondent for and on behalf of its Member Companies,7 and A. R. A., repre-
senting the radio officers , negotiated and executed a labor agreement of which
the first three sections follow :
WITNESSETH :
GENERAL RULES
PREFERENCE OF EMPLOYMENT
SECTION 1. Employers 8 agree to recognize the Association a as the authorized
collective bargaining agent for all Radio Officers employed by the Employers
and when filling vacancies preference of employment shall be given to mem-
bers of Association. _
HIRING
SECTION 2 . The names of all unemployed members of , the Association shall
be placed on the Association 's unemployed lists at the various offices of the
Association . The offices of the Association shall be the central clearing
bureaus through which all arrangements in connection with the employment
of Radio Officers shall be made . For the purpose of promoting safety of
life and property at sea, and to guarantee as far as is practical equal dis-
tribution of work among all members of the Association , the parties hereto
agree that vacancies shall be filled in the following manner. Preference
shall be given the Radio Officer longest unemployed who can present proof
of previous employment and/or experience on a job or jobs similar to that
which is offered , and who in the judgment of the Employer is qualified, com-
petent, and satisfactory to fill the job.
6 All parties , except A . R. A., stipulated that this organization was a labor organization.
The undersigned , as requested at the hearing , takes judicial knowledge of the representation
proceedings being Case No. 20-RM-18 before the National Labor Relations Board involving
all of the same parties participating in the present case and finds that A. F. L. is a labor
organization.
7 Despite its withdrawal from Pacific Maritime Association on June 24, 1949, General
Steamship Corporation will be included as one of the Member Companies throughout this
report.
8 This term refers to the Member Companies.
9 This term refers to American Radio Association , C. I. 0., referred to In this report
as A. R. A.
PACIFIC MARITIME ASSOCIATION ' 901
When any Radio Officer is rejected, the Employer shall furnish a statement
in writing to the Association stating specifically the reason why he is not
qualified , competent , or satisfactory to fill the job.
Wages shall start on the date for which the Operator has requested the
Radio Officer be assigned for employment. If the Radio Officer so requested
does not report on the date requested, his wages shall commence on the date
he does report for duty.
DISCRIMINATION
SECTION 3. ( a) The Employers' agree not to discriminate against any
member of the Association for legitimate union activity.
Section 3 (b) of this agreement provides the procedure by which the Respond-
Ent and Member Companies will obtain radio officers while negotiating substi-
tute clauses for the above sections of the contract in the event that the above-
quoted sections "are suspended in any way as a result of legal action . . . .
It was stipulated at the hearing that the above-mentioned contract was exe-
cuted by the parties and has been since December 3, 1948, and now is, in full
force and effect.
Following this stipulation and the admission of the contract in evidence, the
General Counsel rested without presenting any evidence on the interpretation of,
or practice under, the terms of the above contract by the parties thereto. As
all the other parties hereto rested without the presentation of any evidence, the
questions presented for determination here are therefore: (1) whether the hiring
.provisions agreed upon in said contract are legal under the Act as amended;
and (2) if not, whether the mere execution, together with the fact that the
contract remains in full force and effect, violates Section 8 (a) (1) and/or
Section 8 (a) (3) of the said Act without proof of any actual discrimination
against any known individual.
B. Interpretation of the contract
Paragraph 5 of the complaint issued by the General Counsel alleged that the
parties to the above agreement have enforced its terms "as a contract requiring
membership in A. R. A. as a condition of employment or continued employment
with respect to licensed radio officers employed by the Respondent members."
However, as stated above, the General Counsel failed to present any other
testimony to substantiate this allegation so that it is here necessary to interpret
this contract from its phraseology alone without assistance of interpretive
acts by the parties under the terms thereof.
The phraseology of Section 1 of the contract standing alone appears to provide
solely for the preferential hiring of members of A. R. A. when a new employee is
hired. This priority is based exclusively upon membership in A. R. A. The ter-
minology of this section does not make membership in A. R. A. a condition for
continued employment but creates a preference, or discrimination, in favor of
hiring members of A. R. A. based exclusively upon that union affiliation. Under
this interpretation of the document, it would be what is commonly known as a
preferential hiring agreement. This also appears to be the Respondent's inter-
pretation of the agreement as disclosed in its brief wherein the Respondent
states : "This Agreement provides for a preference of employment of A. R. A.
members when filling vacancies, i. e. when hiring new employees."
However, the provisions of Section 2 of the agreement providing as they do,
that all arrangements for the employment of radio officers shall be made through
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the offices of A. R. A, from a list containing only- the names of all "unemployed)
members" of A. R. A. in order to guarantee, as far as possible, equal distribution of
work "among all members" of A. R. A., leads to the conclusion that this contract
is more than a preferential hiring agreement and, in effect, amounts to a type of
closed-shop contract. The agreement, of course, does not affect radio officers,
already employed so long as they retain their then employment. However, if such
an employed nonunion officer should abandon his then position and thereafter
desire reemployment by one of the Member Companies, it would become necessary
for him.to be a member of A. R. A. before he could even be considered for reem-
ployment. It does not require much imagination to see that it would not be long
before only A. R. A. members need apply for such vacant positions and before
only A. R. A. members would be so employed. With the usual shipboard turnover
in personnel, this contract would soon amount in fact to a closed-shop contract
requiring membership in A. R. A. as a condition of employment'0
Nor with the terms of the present contract staring him in the face, human
nature being what it is today, is an unemployed radio officer today going to seek
employment from one of the Member Companies without first becoming a mem-
ber of A. R. A. One does not go seeking employment with two, or three, strikes
already against him when he can so easily turn those odds in his favor rather
than against him by joining A. R. A. The terms of this contract naturally and
necessarily must encourage membership in A. R. A. and discourage nonaffiliation
with A. R. A. among radio officers seeking employment with the Member Com-
panies.
However, the undersigned does not believe that it is here necessary to a deter-
mination of the issue posed to decide definitely whether the contract is one for
preferential hiring or one providing in effect for a closed shop.
C. Conclusions
Some years ago Congress determined that certain types of labor agreements
led to socially undesirable consequences and, therefore, imposed certain sub-
stantive and procedural safeguards about the principle of freedom of contract in
the negotiations of such labor agreements. In order to prevent these socially
undesirable consequences a labor agreement today must conform in both sub-
stance and procedure to the requirements established in the Act. By these stand-
ards all labor agreements must be tested.
Section 7 of the Act guarantees to the employees not only the "right to self
organization, to form, join or assist labor organizations, to bargain collectively
through representatives of their own choosing . . ." etc. but also, since the amend-
ments of 1947, the right "to refrain from any or all such activities except to
the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized in
Section 8 (a) (3)."
Section 8 (a) (1) reenforces this general guarantee by making it an unfair
labor practice for an employer "to interfere with, restrain or coerce employees
in the exercise of the rights guaranteed in Section 7."
10 The Board, in interpreting a similarly worded contract in M. S J. Tracy, Inc., 12
NLRB 916 at 920, arrived at the conclusion that the contract in that case to all intents and
purposes amounted to a closed-shop contract. On the other hand, the Board, in South
Atlantic Steamship Co., 12 NLRB 1367, came to the opposite conclusion in another case of
a similarly worded contract when the Board found that that contract did not constitute a
defense for discharging certain nonunion members.
PACIFIC MARITIME ASSOCIATION 903 ,
And Section 8 (a) (3) of the Act makes it an unfair labor practice for an
employer "by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership in day
labor organization. ." 11
It is obvious from the sections of the Act above quoted that an employer may
not in any manner, by contract or otherwise, discriminate on the basis of union
affiliation or nonaffiliation in the hiring or the retention of employees. Any
such discrimination on the basis of union membership must of necessity either
encourage or discourage membership in a labor organization and thus be illegal.
The Act was intended to, and did, prohibit "discrimination against anyone either
for belonging or for not belonging to a union." Iz
The, above principle has always been the rule. In American-West African
Lines, Inc., 21 NLRB 691 at 699, the Board succinctly enunciated this prin-
ciple, prior to the 1947 amendments, as follows : "The Statute protects the
individual in his applying for employment against a refusal by the employer to
-consider his application because of union or non-union affiliation." The 1947
amendments to the Act have, if anything, reenforced this well established prin-
ciple. Senator Taft, whose name is prominently associated with these amend-
ments, made the point very clear when he stated : "If in a few rare cases the
-employer wants to use the union as an employment agency, he may do so; there.,
is nothing to prevent his doing so. But he cannot make a contract in advance
that he will only take the men recommended by the Union." 13
Thus, no matter whether we consider the contract here in issue to be a
preferential hiring agreement or in substance a closed-shop contract, it obviously
discriminates between applicants for employment on the basis solely of affiliation
with A. R. A., a type of discrimination definitely prohibited under the terms of
the Act.14
However, although outlawing the closed-shop contract in the 1947 amendments
'to the Act, Congress made provision for one type of union security in the
proviso of Section 8 (a) (3) which reads as follows:
Provided, that nothing in this Act, or in any other statute of the United
States, shall preclude an employer from making an agreement with a labor
organization (not established, maintained, or assisted by any action defined
in Section 8 (a) of this Act as an unfair labor practice) to require as a
condition of employment membership therein on or after the 30th day
following the beginning of such employment or the effective date of such
agreement, whichever is the later, (i) if such labor organization is the
representative of the employees as provided in Section 9 (a), in the appro-
priate collective-bargaining unit covered by such agreement when made;
and (ii) if following the most recent election held as provided in Section
9 (e) the Board shall have certified that at least a majority of the em-
ployees eligible to vote in such election have voted to authorize such labor
organizations to make such an agreement . .
In Williams Coal Company 15 the Board construed the proviso clause of Section
8 (3) of the Wagner Act which permitted the closed shop instead of the union
11 Emphasis supplied.
12 Senate Report 573, 74th Congress, 1st Sees., p. 13 ; House Report 1147, 74th Congress,
1st SesS., p. 21.
13 1947 Congressional Record, p. 3952.
14 At this point the undersigned wishes to make it clear that he is not considering any
question of discrimination based upon the hiring-hall aspects of the present contract.
15 11 NLRB 579, 612-613.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop as permitted under the 1947 amendments thereto, as follows : "The pro-
viso is permissive in character, and where its terms are met renders legal,
insofar as the Act otherwise would render illegal, the making of and performance
of a closed-shop agreement between an employer and a labor organization."
Except for the difference in the type of union security permitted under the
amended Act and the procedural requirements of an election required as a con-
dition precedent to the negotiation of any such union security contract by that
Act, this principle still holds good under the 1947 amendments to the Act.
Regardless of whether the contract in issue here is considered solely a preferen-
tial hiring agreement or as a closed-shop contract, its terms are at variance
with the substantive rules permitted by Congress in the proviso because, under
the terms of the contract here, union membership becomes a condition of
employment and not'merely a condition for the continuation of employment after
30 days. Thus the contract here in demanding union membership prior to hiring
does not conform to the congressional requirement that such union membership
can only be made a condition of continued employment after 30 days of employ-
ment. Thus the contract violates the substantive safeguards promulgated by
Congress and is illegal.
While the proviso above quoted placed certain substantive safeguards about
union security clause in contracts, Section 9 (e) of the Act provided for certain
procedural safeguards as conditions precedent to the right of the collective
bargaining agent to even bargain with the employer for union security terms
conforming with the above substantive requirements. These procedural safe-
guards are set forth in Section 9 (e) as follows:
Upon the filing with the Board by a labor organization, which is the repre-
sentative of employees as provided in Section 9 (a), of a petition alleging
that 30 percent or more of the employees within a unit claimed to be appro-
priate for such purposes desire to authorize such labor organization to make
an agreement with the employer of such employees requiring membership in
such labor organization as a condition of employment in such unit, upon
an appropriate showing thereof the Board shall, if no question of repre-
sentation exists, take a secret ballot of such employees, and shall certify the
results thereof to such labor organization and to the employer 1°
The record here is devoid of any evidence that any such election as provided
for in Section 9 (e) of the Act has ever been requested or held to authorize
A. R. A. to bargain with the Respondent for such union security clauses. Thus
the procedural safeguard required by Congress of an election among the employees
in the appropriate unit to authorize the bargaining agent to request union secu-
rity terms from the employer as a condition precedent to the actual negotiation
of such terms in a contract with the employer have never been satisfied. The
agreement above, therefore, must be held illegal on procedural as well as substan-
tive grounds.
D. Other contentions
Neither the Respondent nor A. R. A. chose to argue the question of the legality
of the above contract in their briefs but based their whole argument upon an
alleged failure of proof by reason of the fact that the General Counsel did not
present any testimony showing any discrimination against any specific individual
in the enforcement of the above agreement. Respondent's contention is that
16 In this report, the undersigned is assuming that A. R. A. Is the representative of the
employees as provided in Section 9 (a) and is not company-dominated or illegally assisted.
PACIFIC MARITIME ASSOCIATION 905
the mere execution of a contract such as the one under discussion here does not
amount to an unfair labor practice without proof of actual discriminatory treat-
ment of some individual thereunder.
The Respondent goes so far with this argument as to contend that the execution
of this contract could not have encouraged membership in A. R. A. for the reason
that there is no evidence that anyone "knew" the terms of said contract and thus
could not be encouraged to join A. R. A. on account thereof. This argument
presumes that the Respondent and the Union were engaging in futile, secretive
negotiations in a vacuum. The undersigned is unable to make this assumption.
The argument further disregards the stipulation to the effect that the contract
has been, and now is, in full force and effect. Certainly the parties are presumed
to abide by the terms of their agreement solemnly entered into and executed.
The mere execution of an agreement containing the discriminatory and illegal
union security clauses such as are contained in the agreement here in issue vio-
lates Section 8 (a) (1) of the Act without the necessity of proving its discrimina-
tory effect upon any one individual. This same contention was raised in Julius
Resnick, Inc., 85 NLRB 51, where the contention was made that there could
be no unfair labor practice because the illegal clauses had not been enforced.
The Board rejected this contention and held that "by entering into the contract
with the Independent, the Respondent restrained its employees in the exercise
of the rights guaranteed by Section 7 of the Act, and thereby violated Section
8 (a) (1) of the Act." The undersigned, therefore, rejects the similar contention
made here by the Respondent.
At the hearing the Respondent intimated that it had been forced by reason
of economic considerations to accept the illegal terms of the contract. Even
assuming this to be true, it would constitute no defense for the Respondent's
unfair practice in executing the agreement. Star Publishing Company, 4 NLRB
498, 97 F. 2d 465 (C. A. 9).
E. Final conclusions
On the basis of the above, the undersigned finds that the agreement dated
December 3, 1948, by and between the Respondent, for and on behalf of Re-
spondent's Member Companies, and A. R. A. does not comply with the require-
ments of Section 8 (a) (3) in the following particulars: (1) In granting a
preference of employment to A. R. A. members based upon such union affiliation ;
(2) in effect providing for membership in A. R. A. as a condition of employ-
ment with Respondent's Member Companies prior to hiring; (3) in eliminating
all individuals except A. R. A. members from consideration for employment by
Respondent Member Companies; (4) in failing to provide the statutory 30 days'
grace before union membership may be required as a condition for continued
employment; and (5) in failing to satisfy the procedural requirements of Sec-
tion 9 (e) of the Act before a union security contract may be legally negotiated.
Therefore said contract is illegal" -
By executing, and maintaining, such illegal contract in full force and effect,.
the Respondent has discriminated in regard to hire and tenure of employment
in order to encourage membership in A. R. A. and to discourage either nonmem-
bership or affiliation in any other labor organization in violation of Section 8
(a) (3) and thereby has interfered with, restrained, and coerced its employees in
17 For a similar ruling under Wisconsin Law see the case of Cutler-Hammer, Inc. V.
I. A. M., 20 LRRM 2522.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exercise of the rights guaranteed to them in Section 7 of the Act in violation
of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent and the Member Companies set forth in
Section III, above, occurring in connection with the operations of the Respondent
and its Member Companies described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent and its Member Companies have
engaged in unfair labor practices, the undersigned will recommend that they,
and each of them, including General Steamship Corporation, cease and desist
therefrom, and take certain affirmative action in order to effectuate the policies
of the Act.
The undersigned has found that by entering into and enforcing an agreement
with A. R. A. containing certain illegal provisions, the Respondent and its Mem-
ber Companies have committed unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act. I shall, therefore, recommend that each
of them cease and desist from such, or any like or related conduct ; that each of
them cease and desist from enforcing those provisions of the contract found
to be illegal; and that each post notices to its employees informing them of the
foregoing.
As the question of representation has been decided by the Board in Case No.
20-RM-18, the undersigned can see no reason for the cancellation of the whole
agreement of December 3, 1945, because the status quo will be restored by the
elimination of the illegal sections of the contract to wit: The first three sections
thereof quoted above. Any further cancellation of said contract would merely
tend to disrupt the normal working conditions of the Radio'Officers and the Mem-
ber Companies.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Radio Officers Union, Marine Division, Commercial Telegraphers Union,
affiliated with the American Federation of Labor, and American Radio Associa-
tion, C. I. 0., are labor organizations within the meaning of Section 2 (5) of
the Act.
2. By executing and maintaining in full force and effect the contract of Decem-
ber 3, 1948, with American Radio Association, C. I. 0., containing illegal union
security clauses not in conformity with the requirements of Section 8' (a) (3),
the Respondent and Member Companies have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the
Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law the
undersigned recommends that the Respondent, Pacific Maritime Association of
PACIFIC MARITIME ASSOCIATION 907
San Francisco, California, its Member Companies, General Steamship Corpora-
tion, of San Francisco, California, and each of them, and their officers, agents,.
successors, and assigns, shall:
1. Cease and desist from :
(a) Performing or giving effect to the first three sections of their contract of
December 3, 1948, with American Radio Association, C. I. 0., or to any modifica-
tion, extension, supplement, or renewal thereof ;
(b) Entering into or enforcing any agreement with American Radio Associa-
tion, C. I. 0., or any other labor organization which requires or grants a prefer-
ence of employment based upon membership in American Radio Association,
C. I. 0., or any other labor organization or which requires its employees to join,
or maintain their membership in, such labor organization as a condition of employ-
ment unless such an agreement has been authorized as provided by the National
Labor Relations Act as amended ;
(cj In any like or related manner interfering with, restraining, or coercing
its employees, in the exercise of the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their
own choosing, to engage in other concerted activities for the purpose of collective-
bargaining or other mutual aid or protection, or to refrain from any or all such.
activities, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) In writing set aside and abrogate the first three sections of the contract
dated December 3, 1948, between itself and American Radio Association, C. I. 0.;
(b) Post at its office in San Francisco, California, and in the radio shacks on
all vessels owned or operated by it copies of the notice attached hereto, marked
Appendix B. Copies of said notice, to be furnished by the Regional Director for
the Twentieth Region, shall, after being duly signed by the Respondent's and
by the Member Companies' representatives, be posted by the Respondent immedi-
ately upon receipt thereof and maintained by it for a period of sixty (60) con-
secutive days thereafter, in conspicuous places, including all places where notices-
to the employees are customarily posted. Reasonable steps shall be taken by the
Respondent and the Member Companies to insure that said notices are not
altered, defaced, or covered by any other material; and
(c) Notify the Regional Director for the Twentieth Region in writing within
twenty (20) days from the date of this Intermediate Report, what steps the
Respondent and Member Companies have taken to comply herewith.
It is further recommended that unless the Respondent and its Member Com-
panies shall within twenty (20) days from the receipt of this Intermediate Report
notify the aforesaid Regional Director in writing that they will comply with the
foregoing recommendations, the National Labor Relations Board issue an order
requiring the Respondent and its Member Companies to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date-
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board an original and six
copies of a statement in writing setting forth such exceptions to the Intermediate
.Report or to any other part of the record or proceeding (including rulings upon
all motions or objections) as he relies upon, together with the original and six
copies of a brief in support thereof ; and any party may, within the same period,
file an original and six copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statements of exceptions and/or briefs, the
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties filing the same shall serve a copy thereof upon each of the other parties.
Statements of exceptions and briefs shall designate by precise citation the
portions of the record relied upon and shall be legibly printed or mimeographed,
and if mimeographed shall be double spaced. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203.85. As further provided in said Section 203.46 should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days from the date of service of
the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, and recommendations herein
contained shall, as provided in Section 203.48 of said Rules and Regulations, be
adopted by the Board and become its findings, conclusions and order, and all
objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 28th day of November 1949.
THOMAS WILSON,
Trial Exa n, ner.
APPENDIX A
The Robert Dollar Company-311 California St., San Francisco, Calif.
American Mail Line-740 Stuart Building, Seattle 1, Wash.
American President Lines, Ltd.-311 California St., San Francisco, Calif.
Alaska Steamship Company-Pier 50, Seattle, Wash.
American-Hawaiian Steamship Company-215 Market St., San Francisco, Calif.
Coastwise Line-152 Sansome St., San Francisco, Calif.
Coastwise Pacific Line-152 Sansome St., San Francisco, Calif.
Grace Line, Inc.-2 Pine St., San Francisco, Calif. (North Pacific Line Service)
Luckenbach Steamship Company, Inc.-100 Bush St., San Francisco, Calif.
Luckenbach Gulf Steamship Company, Inc.-100 Bush St., San Francisco, Calif.
Matson Navigation Company-215 Market St., San Francisco, Calif.
The Oceanic Steamship Company-215 Market St., San Francisco, Calif.
Pope & Talbot, Inc.-320 California St., San Francisco, Calif.
Mount Steamship Corporation-215 Market St., San Francisco, Calif.
Pacific Far East Line-315 California St., San Francisco, Calif.
Pacific Mail Steamship Company-311 California St., San Francisco, Calif.
Pacific Republics Line-140 California St., San Francisco, Calif. (Moore-McCor-
mack Lines, Inc.)
Pacific Transport Lines, Inc.-244 California St., San Francisco, Calif.
Santa Ana Steamship Company-Colman Building, Seattle, Wash.
States Steamship Company-214 Front St., San Francisco, Calif.
Pacific-Atlantic Steamship Company (Quaker Line)-214 Front St., San Fran-
cisco, Calif.
Sudden & Christenson (Arrow Line)-310 Sansome St., San Francisco, Calif.
(All Services except Pacific Coast Steam Schooner Trade)
The Union Sulphur Company, Inc.-33 Rector St., New York City, N. Y.
Weyerhaeuser Steamship Company-311 California St., San Francisco, Calif.
W. R. Chamberlin & Co.-465 California St., San Francisco, Calif. (All Ser-
vices except Pacific Coast Steam Schooner Trade)
James Griffiths & Sons, Inc.-Empire Building, Seattle, Wash. '(All Services
except Pacific Coast Steam Schooner Trade)
Oliver J. Olson & Company-260 California St., San Francisco, Calif. (All
Services except Pacific Coast Steam Schooner Trade)
PACIFIC MARITIME ASSOCIATION 909
4eneral Steamship Corp 18-465 California St., San Francisco , Calif.
Interocean Steamship Corp.-311 California St., San Francisco , Calif.
Olympic Steamship Company, Inc.-64 Pine St., San Francisco , Calif. (All
Services except Pacific Coast Steam Schooner Trade)
Burns Steamship Company-16 California St., San Francisco , Calif: ( All ser-
vices except Pacific Coast Steam Schooner Trade)
West Coast Trans -Oceanic Steamship Company-510 S. W. Third St ., Portland,
. Oreg.
APPENDIX B
NOTICE TO ALL EMPLOYEES
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 notify our employees that:
WE WILL CEASE performing or giving effect to the first 3 sections of our
contract ;dated December 3, 1948, with AMERICAN RADIO ASSOCIATION, C. I. O.
WE WILL NOT enter into , renew or enforce any agreement with AMERICAN
RADIO ASSOCIATION, C. I. 0., or any other labor organization, which requires
our employees to join, or maintain their membership in, such labor organ-
ization, unless and until such an agreement has been authorized as pro-
vided in the National Labor Relations Act as amended.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organization, to
form labor organizations , to join or assist any labor organization, to
bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective bargaining,
or other mutual aid or protection , or to refrain from any and all such
activities as guaranteed in Section 7 of the National Labor Relations Act
as amended.
PACIFIC MARITIME ASSOCIATION,
By ----------------------------
(Office)
----------------------------
(Member Company)
By ----------------------------
(Office)
Dated ----------------------•
This notice must remain posted for sixty (60) days from the date hereof,
and must not be altered, defaced, or covered by any other material.
11 See footnotes 1 and 4 of report.