Pacific Transport Lines, Inc.

National Labor Relations Board - Board Decisions

Feb 10, 1958

119 N.L.R.B. 1505 (N.L.R.B. 1958)

PACIFIC TRANSPORT LINES, INC. 1505,
The Board has held that mere falsity alone does not warrant setting
an election aside, knowledge of the true facts must not be readily
available to the employees or the other party and the misrepresenta-
tion must be deliberate.' In the instant case, the wage rate quoted
was that of the four major chain stores in the community organized
by the Petitioner. The employees therefore may have been presumed
to have access to such wage rate information 6 We therefore adopt
the Regional Director's recommendation that this objection be
overruled'
As we have overruled the Employer's objections and as the Peti-
tioner has received a majority of the valid votes cast, we shall certify
the Petitioner as the collective-bargaining representative of the
employees in the appropriate unit.
[The Board certified Local No. 725, Retail Clerks International
Association, AFL-CIO, as the collective-bargaining representative of
the employees of the Employer's retail drugstores in Indianapolis,,
Indiana.]
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision and Certification of Representatives.
5 Allis-Chalmers Manufacturing Co, 117 NLRB 744, Wheelerweld Division, C. H.
Wheeler Manufacturing Company, 118 NLRB 698, Kennametal, Inc, supra.
6 Vellumoid Company , 118 NLRB 1431.
7 The Employer's request for oral argument is hereby denied as the Regional Director's
report , the briefs and the exceptions adequately present the issues and the positions of
the parties.
Pacific Transport Lines , Inc. and Ernest Brown
Marine Cooks and Stewards , AFL-CIO and Ernest Brown.
Cases Nos. 20-CA-1185 and 20-CB-464. February 10, 1958
DECISION AND ORDER
On January 18, 1957, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled consolidated proceedings,'
finding that the Respondents had not engaged in and were not en-
gaging in any unfair labor practices and recommending that the
complaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel and the Respondent Company filed exceptions to the Intermediate
Report and supporting briefs; the Charging Party filed exceptions
' We reaffirm our refusal to sever and hold separate hearings in each of these cases,
Cambria Clay Products Company, 106 NLRB 267 , footnote 2.
119 NLRB No. 186.
476321---5 8-vol. 119-96
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Intermediate Report, and the Respondent Union filed a sup-
porting brief 2
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the briefs, and the entire record
in this case, and finds merit in the General Counsel's exceptions, to
the extent and for the reasons shown below. Consequently the find-
ings in the Intermediate Report are adopted only insofar as consistent
with this Decision and Order.
1. We disagree with the Trial Examiner's conclusion that Respond-
ent Union did not violate the Act by causing Respondent Company
to discharge Ernest Brown.
In November 1955 Brown reported to the Union hiring hall to seek
a new work assignment. He was referred to Patrolman Handelsman.
Handelsman instructed Brown to fill out an application for member-
ship in the Union, accepted $20 in payment for a work permit, and
requested an additional $60 covering back dues? At Brown's re-
quest, Handelsman agreed to wait for the balance of the requested
money until Brown returned from his next trip. On February 11,
1956, Brown was assigned to a job aboard Respondent Company's
ship, the SS. Philippine Transport.
On April 18 the SS. Philippine Transport completed a voyage. On
that day Handelsman went aboard and requested Brown to pay his
dues arrears . However, at Brown's request, Handelsman gave Brown
permission to pay his arrears after the completion of the ship's forth-
coming voyage to Los Angeles- a matter of some 2 weeks.
Notwithstanding this extension, 2 days later, on April 20, Handels-
man again boarded the Philippine Transport shortly before the ves-
sel's scheduled departure. Almost immediately, Handelsman, in the
presence of Chief Steward Rosa, informed Brown that he was "sup-
posed to pay [his dues arrears] before the ship leaves the port or get
off." Brown requested a few minutes to telephone his mother to have
her wire funds to him. When this request was not granted, Brown
remonstrated against the little time he was being given to pay the
arrears . He pointed out that if he had been told on April 18 that he
had to pay his dues before the ship left port, he would have had the
money ; that he had been told that he "could make the trip around the
loop," and now was being given only 2 hours to pay the money.
Handelsman then told Brown that if he didn't quit the ship, he would
2 The Respondents' briefs supported the Trial Examiner 's recommended dismissal of the
complaint, but urged reliance upon additional grounds, not adopted by the Trial Examiner.
3 Brown had informed Handelsman that a union delegate had filed certain forms on his
behalf in January 1955 ; and Handelsman had computed Brown 's dues liability as extend-
ing to the second quarter of 1955.
PACIFIC TRANSPORT LINES, INC. 1507
be taken off "under the Taft-Hartley Act." Handelsman • then told
Chief Steward Rosa to fire Brown.
Brown and Handelsman then went to the purser's office. Handels-
man said, "I want this man paid off." Brown asked the ship's purser
to lend him the money to pay the dues. Before the purser could
answer, Handelsman said, "What are you trying to do, start trouble
on the ship? I told you, you had to get off and that is it."
Brown and Handelsman then went to the officers' mess. While
there, Ladjimi, a fellow seaman, stated to Handelsman that he would
"pay [the dues] for [Brown] and he can pay me back during the
trip." Handelsman replied that "we don't want his money;" that
Brown should "get off the ship, and get his money, and come into the
hall, and straighten his dues up and we will ship him out." At that
point, Handelsman left the room. When lie returned, Brown inquired
why Handelsman would not accept the money and let him stay on the
ship. Handelsman replied, "Look I'm going to give you a break. If
you want to make an issue out of it I will fix it so you will never ship
no more. You get your bag packed and get off the ship...
A short while later Brown was discharged.
The Trial Examiner found that Patrolman Handelsman's action
in granting Brown an extension of time in which to pay his dues
arrears did not mislead Brown to his prejudice. He also found that
the extension granted Brown "was not any formal action of the Union,
by which the payment of his dues was officially deferred." In this
connection, however, the record shows that patrolmen are union offi-
cers, and that Handelsman's official duties included the collection of
union dues. The grant of time to Brown was, therefore, an act which
had the appearance of being within the scope of Handelsman's dues-
collecting authority. Consequently, in these circumstances, and not
overlooking Handelsman's display of authority in November 1955,
we find that whether or not Handelsman was cloaked with the specific
authority to grant extensions of time for dues payments, Brown was
justified in believing that he had the Union's official sanction for the
deferrment of his payment, and the Union must be held answerable
for Handelsman's action.'
The significant issue in connection with the Union's ultimate respon-
sibility for Brown's discharge is not, as the Trial Examiner appeared
to think, whether the extension of time given Brown-a unilateral
action on the part of the Union-was revocable. For even if the
extension is deemed revocable, the issue remains as to whether Brown,
who was led to believe that he had about 2 weeks in which to pay
his arrears, actually received a reasonable time after revocation within
which to tender his dues.' If he did not receive such a reasonable
4 See J. P. Florio & Co., Inc., 118 NLRB 753, footnote 8.
s See Busch Kredit Jewelry Co. Inc., 108 NLRB 1214.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, the Union cannot now assert Brown's delinquency as justification
for demanding his discharge.
On this record, we find that Brown was not given a reasonable time..
For, as set forth above, the facts show that Handelsman boarded the
Company's vessel on April 20 and peremptorily demanded immediate
payment of Brown's dues arrears, refused to allow Brown time to get
the money from his mother, rejected Ladjimi's offer to pay Brown's
dues, and in effect refused to allow the purser to respond to Brown's
request for a loan . Whether or not Brown was shirking his dues
obligation, as the Union contends, considered against Handelsman's
action 2 days earlier, which unequivocally indicated that Brown's
dues' payment had been deferred for about 2 weeks, the abruptness of
Iandelsman's later action cannot be justified. In our judgment,,
therefore, it would be inequitable to treat Brown as delinquent on
April 20, and subject to discharge, immediately after he was notified
that his extension of time to pay his dues had been rescinded.
The propriety of this conclusion is not altered by the fact that at the-
time of his discharge Brown had $60 in his pocket, but failed to tender
any part of it to Handelsman. Whether or not this fact is a material
factor is open to question. In any case, however, in view of the timing-
and suddenness of the demand for his discharge, it appears that
Brown had virtually no opportunity to make a tender prior to the
demand; and after the demand, a tender would certainly have been
futile.6 Moreover, the evidence does not show whether the $60 was
Brown's property, was otherwise committed, or was essential to pur-
chase necessaries which he may otherwise have provided for had he
been given adequate notice that the Union intended to revoke the-
extension of time for paying his dues.
We accordingly conclude, contrary to the Trial Examiner, that
the Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act
by causing Brown's discharge.
2. We affirm the Trial Examiner's finding that Brown did not vol-
untarily quit his employment, as Respondent Company contends, but
instead was discharged by Rosa, the Company's chief steward. How-
ever, we disagree with the Trial Examiner's conclusion that the Com-
pany did not violate the Act by discharging Brown.
We note and rely among other things in the record, particularly-
upon the fact that Brown, whom the Trial Examiner found to be a
credible witness, testified without contradiction that he told Rosa
that he was not voluntarily quitting the ship ; upon the fact that, at
Brown's request, Rosa gave Brown a written statement that he was
6N. L. R. B. v. International Association of Machinists, Local 504 (Westinghouse-
Electric Corp.), 203 F. 2d 173, 175-177 (C. A. 9). For this reason, unlike the Trial
Examiner, we attach little significance to Brown's silence when Ladjimi told Handelsman:
that he would advance the money to pay Brown's dues.
PACIFIC TRANSPORT LINES, INC. 1509
being removed by the Union, an act inconsistent with the claim that
the Company was not involved in the termination of Brown's employ-
ment; and upon the further fact that the Company's "Discharge Rec-
•ord," signed by Rosa before Brown left the ship, stated as the "Reason
For Discharge" that Brown had been removed by the Union.
Contrary to the Respondent Company's further contention, we also
:adopt the Trial Examiner's finding that the Company is responsible
for Chief Steward Rosa's conduct in discharging Brown. In this
connection , like the Trial Examiner, we find that Rosa was a super-
visor within the Act's meaning.7 In addition, the master of the Philip-
pine Transport impliedly ratified Rosa's conduct for, as the Trial
Examiner pointed out, he did not disavow the discharge when
informed of Brown's removal.'
Finally, Section 8 (a) (3) of the Act prohibits an employer from
'complying with a union demand for discharge of an employee pur-
suant to a union-security agreement if the employer has reasonable
grounds for "believing" that the demand was made for reasons other
than the employee's delinquency in tendering his dues or initiation
fees . Here, so far as the record shows, there were no facts known by
the Company at the time the Union demanded Brown's discharge
which could, in our opinion, have reasonably led the Company to
believe that the demand was lawful.9 On the contrary, the only
knowledge the Company had at that time was that the Union had given
Brown an extension of time within which to pay his dues arrears, that
the Union had peremptorily revoked the extension without prior
notice, and that the Union was demanding immediate payment. It
is our view that the only reasonable conclusion which the Company
could have reached, on the basis of its limited information, was that
s In an earlier case involving the Company , the Board found that chief stewards were
:supervisors . Pacific Maritime Association, 100 NLRB 1259 . There is nothing in this
record to show that the duties of chief stewards have since changed. Indeed , the record
affirmatively shows that Chief Steward Rosa responsibly directed the work of employees
in the steward department . Moreover, under the Respondents ' collective-bargaining con-
tract chief stewards are supervisors by definition.
6In its brief , the Company asserts that the theory of implied ratification may not be
relied upon because there is no indication that the ship 's master had any information to
suggest that Brown 's discharge was unlawful , and because the General Counsel 's bill of
particulars relied only on the chief steward's conduct. We hold that the ship 's master
must be deemed to have accepted full responsibility for the conduct which he was willing
to ratify. Edwards Brothers , Inc., 95 NLRB 1451 . We further hold that the issue of
ratification is properly before the Board as facts relevant to that issue were adduced at
the hearing before the Trial Examiner , and as the Company in its exceptions has neither
-claimed surprise nor shown that it will be prejudiced unless permitted to present addi-
tional facts . N. L. R. B . v. Mackay Radio & Telegraph Co., 304 U. S. 333 , 349-350.
B The evidence adduced at the hearing raises an issue as to whether the request for
Brown's discharge , and the discharge itself , may have been unlawful because the dues
demanded by Handelsman covered a period prior to Brown ' s employment by the Company
on board the Philippine Transport , i. e., a period during which he may have been employed
by another employer, and during which he was on call awaiting assignment to a ship. See
Murphy's Motor Freight , Inc., 113 NLRB 524, enfd . 231 F . 2d 054 ( C. A. 3). This issue
was not litigated at the hearing. In view of our decision herein, we find it unnecessary
to pass upon this matter . For the same reason, we do not pass upon various contentions
advanced by the General Counsel to establish that Respondents' conduct violated the Act.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's demand for immediate payment was inequitable, and,
therefore, that Brown should not be deemed delinquent in the pay-
ment of his dues when the demand for his discharge was made.
We accordingly find that in the circumstances of this case, the Com-
pany did not have reasonable grounds for believing that it could
lawfully accede to the Union's demand for Brown's discharge. Indeed
Chief Steward Rosa, in effect admitted this when, as the Trial Exam-
iner found, he told Handelsman that Brown had done a good job,
that Rosa had "to have something to go on," and that he could not
"fire him just like that." As the Company nevertheless did accede to
Handelsman's demand, it must bear the responsibility of its action.
In view of the foregoing, we find that the Company violated Section
8 (a) (3) of the Act by discharging Brown upon the Union' s request.10'
THE REMEDY
Having found that Respondents have committed unfair labor prac
tices, we shall require them to cease and desist therefrom and to take
affirmative action designed to effectuate the policies of the Act. More
specifically, we shall require the Company to offer to Ernest Brown
immediate and full reinstatement to his former or a substantially
equivalent position, and shall require the Union to notify Ernest
Brown and the Company in writing that the Union has no objection
to such reinstatement." We shall also require the Company and the
Union jointly and severally to make Brown whole for the loss of
pay he may have suffered by reason of the discrimination against
him, said loss of pay to be computed on a quarterly basis in accordance
with 'the formula adopted by the Board in F. W. Woolworth, 90
NLRB 289. We shall provide, however, that the Union shall not be-
liable for any back pay which may accrue for the period beginning 5
days after it notifies the Company as aforesaid.
ORDER
Upon the entire record in these cases , and pursuant to Section 10'
(c) of the National Labor Relations Act, as amended , the National
Labor Relations Board hereby orders that :
1. The Respondent , Pacific Transport Lines, Inc., San Francisco,
California, its officers , agents, successors , and assigns , shall:
(a) Cease and desist from :
(1) Encouraging membership in Marine Cooks and Stewards,
AFL-CIO, or in any other labor organization of its employees, by
10 In concluding that the Union's demand for discharge was lawful, the Trial Examiner
relied on facts concerning which the Company had no knowledge when it discharged
Brown.
11 we take this action because the record does not clearly show whether, absent the
discrimination, Brown's employment by the Company would have ended upon the return
of the Philippine Transport to San Francisco on or about May 2, 1956.
PACIFIC TRANSPORT LINES, INC. 1511
discriminating in regard to their hire or tenure of employment or
any term or condition of their employment.
(2) In any like or related manner, interfering with, restraining, or
coercing its employees, in the exercise of the rights guaranteed to
them in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Offer to Ernest Brown immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice
to his seniority or other rights and privileges.
(2) Jointly and severally with Respondent Union make whole
Ernest Brown, in the manner set forth in the section of this Decision
and Order entitled "The Remedy," for any loss of pay he may have
suffered because of the discrimination against him.
(3) Upon request, make available to the National Labor Relations
Board, or its agents, for examination or copying, all payroll records,
social security payment records, timecards, personnel records and
reports, and all other records necessary for determination of the
amount of back pay due under the terms of this Order.
(4) Post copies of the notice attached hereto, marked "Appendix
A," at its offices in San Francisco, California, on board the SS.
Philippine Transport, and aboard all other ships owned and operated
by the Respondent Company.12 Copies of such notice, to be furnished
by the Regional Director for the Twentieth Region, shall, after being
duly signed by the Respondent Company's authorized representative,
be posted by the Company immediately upon receipt thereof and
maintained by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Company to insure that said notices are not altered, defaced,
or covered by any other material.
(5) Notify the said Regional Director in writing, within ten (10)
days from the date of this Order, what steps the Company has taken to
comply herewith.
2. The Respondent, Marine Cooks and Stewards, AFL-CIO, its
officers, representatives and agents, successors, and assigns, shall :
(a) Cease and desist from:.
(1) Causing or attempting to cause Pacific Transport Lines, Inc.,
or any other employer, to discriminate against employees in violation
of Section 8 (a) (3) of the Act.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be submitted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
_15512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Restraining or coercing employees of the said Company, or
employees of any other employer in the exercise of the rights guar-
anteed to them by Section 7, except to the extent that such rights may
be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized by Section 8 (a) (3)
of the Act.
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Notify Ernest Brown and the Company that the Union has no
.objection to Brown's reinstatement as provided in paragraph 1 (b)
(1) of this Order.
(2) Jointly and severally with Respondent Company, make whole
Ernest Brown for any loss of pay which he may have suffered
because of the discrimination against him, in the manner set forth in
the section of this Decision and Order entitled "The Remedy."
(3) Post in conspicuous places in its business offices in San Fran-
cisco, California, and in all other places where notices to members
.are customarily posted, copies of the notice attached hereto and
marked "Appendix B." 13 Copies of such notice, to be furnished by the
Regional Director for the Twentieth Region, shall, after being signed
by official representatives of the Respondent Union, be posted by it
immediately upon receipt thereof, and maintained by it for a period
of sixty (60) consecutive days thereafter. Reasonable steps shall be
taken by the Respondent Union to insure that such notices are not
altered, defaced, or covered by any other material.
(4) Mail to the Regional Director signed copies of the notice,
attached hereto and marked "Appendix B," for posting, the Respond-
ent Company willing, at the places where Appendix A is posted.
Copies of said notice, to be furnished by the said Regional Director,
shall, after being signed as provided in paragraph 2 (b) (3) of this
Order, be forthwith returned to the Regional Director for such
posting.
(5) Notify the said Regional Director in writing, within ten (10)
days from the date of this Order, what steps the Respondent Union
has taken to comply herewith.
MEMBERS JENKINS and FANNING took no part in the consideration
of the above Decision and Order.
Is See footnote 12, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that :
PACIFIC TRANSPORT LINES, INC. 1513
WE WILL NOT encourage membership in Marine Cooks and
Stewards , AFL-CIO, or in any other labor organization of our
employees , by discrimination in any manner in regard to their
hire, tenure of employment , or any term or condition of
employment.
WE WILL NOT in any like or related manner interfere with,:
restrain , or coerce our employees in the right to refrain from
any or all of the concerted activities guaranteed them by Sec-
tion 7 of the Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized by
Section 8 (a) (3) of the Act.
WE WILL offer reinstatement to Ernest Brown and we will
make him whole for any loss of pay suffered as a result of
discrimination against him.
All our employees are free to become, or remain members of the
above-named union or any other labor organization , except to the
extent that this right may be affected by an agreement in conformity
with Section ' 8 (a) (3) of the amended Act.
PACIFIC TRANSPORT LINES, INC.,
Employer.
Dated--- ------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,,
and must not be altered , defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF MARINE COOKS AND STEWARDS,
AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor'
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause Pacific Transport
Lines, Inc., or any other employer, to discharge, refuse to
employ or otherwise to discriminate against its employees in
violation of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of Pacific Transport
Lines, Inc., or employees of any other employer, in the exercise
of the rights guaranteed to them by Section 7, except to the
extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ--
ment, as authorized by Section 8 (a) (3) of the Act.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL notify Ernest Brown and Pacific Transport Lines,
Inc., that we have no objection to Brown's reinstatement.
WE WILL make Ernest Brown whole for any loss of pay he
may have suffered because of the discrimination against him.
MARINE COOKS AND STEWARDS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the Act, was heard at San
Francisco , California , on various dates between September 24 and October 15, 1956,
pursuant to due notice to all parties .' The complaint , dated August 21, 1956, issued
by the General Counsel and duly served on the Respondents , was based on a charge
duly filed by Ernest Brown, the Charging Party. The complaint alleged in substance
that on or about April 20, 1956, the Union had caused the Company to discrimina-
torily terminate the employment of Ernest Brown , on the SS. Philippine Transport,
for reasons other than his failure to tender the periodic dues and initiation fees uni-
formly required as a condition of acquiring or retaining membership in said Union,
and that by such conduct the Company violated Section 8 ( a) (1) and ( 3), and the
Union violated Sections 8 (b) (1) (A) and 8 (b) (2) of the Act.
On or about September 12, 1956, each of the Respondents served a demand for a
bill of particulars upon the General Counsel. On September 19, 1956, the General
Counsel by letter to each of the Respondents supplied particulars as to the violations
of the Act alleged in the complaint . It was stipulated by counsel at the hearing that
these letters afforded the Respondents the particulars which each had demanded.
Each of the Respondents in a duly filed answer denied the commission of the
alleged unfair labor practices , but admitted certain facts relating to the operation of
the Company and the Union. These admitted facts are more specifically set forth
hereafter , as are the contentions of the parties as set forth in the various pleadings,
and the argument of counsel for the Charging Party.
At the hearing all parties were represented , were afforded full opportunity to be
heard, to examine and cross-examine witnesses , to introduce evidence bearing on the
issues, to argue the . issues orally upon the record , and to file briefs and proposed
findings.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The pleadings admit that the Company is a corporation with principal offices lo-
cated at San Francisco , California. It is engaged in the business of transporting
freight on numerous oceangoing vessels owned and operated by the Company , includ-
ing the SS . Philippine Transport , between various ports in the United States, and ports
in foreign countries . During the year 1955, the Company transported cargo from
ports located in the State of California to ports located in foreign countries valued in
excess of $ 1,000,000 . Upon the evidence as a whole, I find that the Company was
engaged in interstate commerce within the meaning of the Act, at all times pertinent
hereto.
'In this Report , Pacific Transport Lines, Inc ., is referred to as the Company , Marine
Cooks and Stewards , AFL-CIO, as the Union, and these parties jointly as the Respond-
ents ; the General Counsel and his representative at the hearing as the General Counsel;
the National Labor Relations Board, as the Board ; and the Labor-Management Relations
Act of 1947, as amended , as the Act.
PACIFIC TRANSPORT LINES, INC. 1515
II. THE LABOR ORGANIZATION
The pleadings admit, and I find, that Marine Cooks and Stewards, AFL-CIO, is
a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issue as Framed by the Pleadings
As noted previously, the General Counsel by a letter, dated September 19, 1956,
to each of the Respondents, particularized his complaint. These documents, together
with the answers of the Respondents, defined the issues of the proceeding. How-
ever, the Charging Party at the hearing evinced a desire to widen the scope of the
hearing to include points not directly raised by the pleadings. Also, in the course of
the hearing, all counsel raised questions of relevancy and materiality to certain testi-
mony or evidence. In consequence, in the record there are numerous rulings of the
Trial Examiner on the admissibility of evidence. Under the circumstances, it is
deemed advisable to set out the issues in full as framed by the pleadings in order to
afford the Board a basis for review of these rulings.
As noted previously, the complaint alleges that the Union caused the Company
to discriminatorily terminate the employment of Brown for reasons other than his
failure to tender the periodic dues and initiation fees. In his letters of September
19, 1956, the General Counsel set forth his position in regard to the violations al-
leged in the complaint. The General Counsel's letter to counsel for the Company
reads in part as follows: 2
This is to confirm our telephone conversation yesterday concerning your
demand for Bill of Particulars and Motion for Extension of Time to Answer
Complaint, copies of which were lodged in this office on September 11, 1956.
I informed you that it is the General Counsel's position in these cases that the
Respondent Union had violated the Act when its agent, Patrolman William D.
Handlesman, granted the alleged discriminatee, Ernest Brown, an extension of
time for the payment of permit fees to the Respondent Union, and thereafter
revoked the extension of time so granted and caused the Respondent Employer
to terminate the employment of Brown; and that the Respondent Employer had
reasonable cause to believe that Brown's employment was being terminated
for reasons other than his failure to tender the periodic dues and initiation fees
uniformly required.
I also informed you that the agents of the Respondent who were present
at the time the events in question occurred and whose knowledge is attributable
to the Respondent, were Domingo C. Rosa, chief steward of the SS.
PHILIPPINE TRANSPORT, and the purser of that vessel on the date of
Brown's termination. .
I informed you also that it is our view that the Respondent Employer was
unjustified in terminating the employment of Brown because in so doing
it failed to abide by the terms of its contract with the Respondent Union, which
provide that the Respondent Union will make a written request for termina-
tion of an employee who is regarded as delinquent in the payment of dues.
I further informed you that in our opinion the Respondent Union's demand
on Brown was unjustified to the extent that such demand included payment to
a building fund of Respondent Union.
I also told you that it was not our position that Brown's membership in the
Respondent Union had been terminated, since it is our information that he
has never been a member of the Respondent Union but instead has sailed
at various times as a permit card holder. It is my intention when the hearing
opens to move to amend lines 3 and 4 of paragraph IV of the Complaint by
deleting the words . although Respondent Employer had reasonable
grounds for believing that Brown's membership was denied or terminated"
and inserting instead the words . . although Respondent Employer had
reasonable grounds for believing that Brown's employment was being termi-
nated."
In our opinion the Board decision in Busch Kredit Jewelry Co., 108 NLRB
1214, is in point. I have cited it for the benefit of Mr. Jennings, and I am glad
to bring it to your attention as well.
* * * * * * *
GGeneral Counsel's Exhibit No. 17.
1516 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
The General Counsel 's letter to counsel for the Union reads in part as follows: s
This is to confirm our telephone conversation yesterday concerning your
Demand for Bill of Particulars , dated September 11, 1956, in the above-named
cases. I informed you that it is the General Counsel's position in these cases
that the Respondent Union had violated the Act when its agent , Patrolman
William D. Handlesman , granted the alleged discriminatee , Ernest Brown, an
extension of time for the payment of permit fees to the Respondent Union, and
thereafter revoked the extension of time so granted and caused the Respondent
Employer to terminate the employment of Brown.
I also informed you that it was the position of the General Counsel in these
cases that the Respondent Union had further violated the Act by causing the
Respondent Employer to terminate the employment of Ernest Brown by de-
manding payment of a sum of money which included an allocation to a build-
ing fund of the Union. It is our view that to that extent the demand covered
a sum of money for something other than the periodic dues and initiation fees
uniformly required.
I also told you that it was not our position that Brown's membership in the
Respondent Union had been terminated , since it is our information that he
has never been a member of the Respondent Union but instead has sailed at
various times as a permit card holder. It is my intention when the hearing
opens to move to amend lines 3 and 4 of paragraph IV of the Complaint by de-
leting the words . although Respondent Employer had reasonable
grounds for believing that Brown 's membership was denied or terminated" and
inserting instead the words ". . . although Respondent Employer had reasonable
grounds for believing that Brown 's employment was being terminated."
During the course of our conversation I also told you that I had somewhere
jotted down the name of a case which , in my opinion, is relevant to the present
state of facts and that I would be glad to give it to you when I was able to
locate it. The case is Busch Kredit Jewelry Co., 108 NLRB 1214.
The answer of the Company alleged on information and belief that Brown had
failed to tender the periodic dues and initiation fees uniformly required as a condi-
tion of acquiring or retaining membership in the Union after having been employed
on the SS. Philippine Transport for a period in excess of 30 days and in effect that
Brown was discharged pursuant to a valid union -security provision of the contract
between the Company and the Union.
The answer of the Union alleged : ( 1) if the employment of Brown was terminated
involuntarily as alleged in the complaint , that the termination of his employment was
solely because of his failure and refusal to tender the periodic dues uniformly
required as a condition of acquiring and retaining membership in the Respondent
Union; (2) -that Brown failed and refused since approximately November 12, 1955,
and continuously through April 20, 1956, to pay the dues required as a condition
of acquiring and retaining membership in the Union; (3) on being advised on or
about April 20, 1956 of his obligations and the intention of the Union to request
his discharge pursuant to the provisions of the contract between the parties, that
Brown stated that he would not pay his dues; ( 4) that Brown thereupon voluntarily
left the SS . Philippine Transport; and (5 ) that Brown did not at any time tender
his dues to the Union until about May 4, 1956.
At the hearing counsel for the Charging Party stated that his position was parallel
to that of the General Counsel', except that he desired to urge two additional grounds
upon which the discharge of Brown was illegal. The first of these was that the
union-security provision in the contract between the Pacific Maritime Association
and the Union was illegal in that it was not coextensive with the appropriate col -
lective-bargaining unit as defined by the Board, and that Brown's discharge pursuant
to the illegal provision was a violation of the Act. His second point was that in
this particular case the Union was seeking "support money," and not dues, and that
such an exaction was unlawful in the absence of a provision in the agreement
authorizing the payment of support money, citing Public Service Company of
Colorado, 89 NLRB 418. The Trial Examiner ruled that the issues of the proceeding
were framed by the General Counsel 's complaint as particularized , and the Respond-
ents' answers , and that the Charging Party could not, in effect, amend , amplify, or
extend the scope of the General Counsel 's complaint , without the consent of the
General Counsel's representative, since under the Act only that officer can decide
what matters will be prosecuted to effectuate the purposes of the Act.
8 General Counsel 's Exhibit No. 16.
PACIFIC TRANSPORT LINES, INC. 1517
At the hearing General Counsel also amended the complaint pursuant to the
intention expressed in his letters of September 19; this amendment was permitted
and thereafter paragraph IV of the complaint read as follows: "On or about April
20, 1956, Respondent Employer, because of the acts of Respondent Union set forth
in Paragraph II above, discriminatorily terminated the employment of the aforesaid
Ernest Brown, although Respondent Employer had reasonable grounds for believing
that Brown's employment was being terminated for reasons other than his failure
to tender the periodic dues and initiation fees uniformly required as a condition
for acquiring or retaining such membership."
The Union-Security Provision of the Contract
The contractual relationship between the Union and the Company began with a
temporary agreement which was executed on June 23, 1955, between the Seafarers
International Union of North America, Pacific District, comprising the Sailors Union
of the Pacific, Marine Firemens Union and the Marine Cooks and Stewards, AFL,
and the Pacific Maritime Association on behalf of its member companies, one of
which is the Company here involved. On December 13, 1955, this "temporary
agreement" was superseded by the existing agreement between the parties. The
union-security provision of the temporary, and the later formal contract, is sub-
stantially the same. Section 7 (a) of the formal contract reads as follows:
The Employers agree that, as a condition of employment hereunder, all
Steward Department employees shall become members of the MCS-AFL within
thirty-one (31) days after the execution of this agreement, or within thirty-one
(31) days of employment hereunder, whichever is later, and shall remain mem-
bers of the MCS-AFL while employed by the Employers listed herein during
the life of this agreement. The provisions of the foregoing sentence shall not
apply to Chief Stewards. The Employer is obligated to take steps to enforce
the provisions of the first sentence of this subparagraph (a) only as provided
by law, including Section 8 of the National Labor Relations Act, and after due
notice is received in writing from the MCS-AFL to the effect that the individual
employee is not in compliance herewith.
The Sequence of Events
It is undisputed that Brown was employed by the Company as a messman aboard
the SS. Philippine Transport at the time his employment was terminated on April 20,
1956. In that job his immediate supervisor was Chief Steward Domingo C. Rosa,
and the master of the vessel was Kristen Jorgensen, who was a relief master for
the Company.
It is likewise undisputed that W. D. Handelsman, whose nickname of "Shanghai
.Abe" appears in the record, occupied the position of patrolman for the Union. The
provisional constitution of the Union, in effect at all times pertinent hereto, lists
patrolmen as officers of the Union.
The General Counsel's case is based on the testimony of the Charging Party,
Ernest Brown, and some supporting documents. Brown's testimony concerning the
events leading mp to the termination of his employment is undisputed, since Handels-
man, the principal union official involved, and Rosa, the principal company official
involved, did not testify.
Brown stated that he had been employed by various steamship companies for
approximately 12 years. In that time he held various ratings as cook, messman,
janitor, porter, bedroom steward, waiter, and scullion. In the years 1945-53 he
had been a member of the Marine Cooks and Stewards, CIO. In the period 1953-55
he was a member of the International Longshoremen and Warehousemen's Union,
Marine Cooks and Stewards Branch. He was employed aboard the Mormacrey in
1955 and was the delegate of the ILWU on that ship. The Marine Cooks and
Stewards Branch of the ILWU went out of existence after being defeated in a
Board-conducted election which ended on April 7, 1955. The Union was certified
.June 21. 1955. Brown continued in his job on the Mormacrey until October 24,
1955, when the ship was laid up in the port of New York and the crew given their
discharge. Brown was furnished transportation to San Francisco.
Brown testified that sometime in January 1955, while the Mormacrey was in the
port of San Pedro, California, a representative of the Union came aboard the ship
:and gave the delegate some application forms for the Union. The delegate told
Brown that he had filled out application forms for all the crew, including Brown,
and had forwarded them to the headquarters of the Union at Portland, Oregon.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Registration of Brown, November 14, 1955 4
On November 14, 1955, after his return to San Francisco, Brown went to the
offices of the Union. He went to the dispatcher's window and told that official that
he wanted a job. The dispatcher asked for his discharge papers, which Brown
gave him, and then for his "permit card." When he told the dispatcher that he had
no permit card, he was referred to Handelsman. Brown went to Handelsman's
office. He told Handelsman that he would like to have a permit, so Handelsman
asked him to fill out certain forms. Brown told Handelsman that sometime in Janu-
ary, while he was aboard the Mormacrey, the union delegate had filled out some
forms for him and forwarded them to Portland. Handelsman said he would check
with Portland as to the old forms, but to fill out the present forms anyway. Brown
filled out these application forms and gave them to Handelsman. One form was
a record of Brown's employment from his 16th birthday to the present date and
the other was a union application form.5
Brown testified that from the information he gave to Handelsman the latter figured
out how much dues Brown owed to the Union. Handelsman said that Brown would
have to pay dues back to April 1955, which would mean dues for 3 quarters at $20
per quarter equalling $60, and another $20 for the permit, which made a total of
$80. Brown then told Handelsman that he did not have $80, that he only had $20
with him. Handelsman then told Brown to give him the $20, and when he received
his pay after Brown's first trip, that Brown could come in, pay the rest of it, and
get his receipt and permit. Brown then gave Handelsman $20 and the latter made
a notation on the back of the papers, and said he that he would forward the papers to
Portland and have an answer in a few days. With that Handelsman called out
to another fellow in the office and told him that Brown would pay the other $60
after his first trip, and both Handelsman and this other man signed the back of
the papers. Brown testified that then Handelsman tore the receipt out of the book and
gave it to the other man along with the papers. Then Handelsman called out the
door to the dispatcher and told him to register Brown for a shipment card. Brown
registered and received his card that day.
On February 11, 1956, Brown went to the union hall and was assigned to a job
as P. O. messman on the Philippine Transport. Brown continued to occupy that
job while the vessel made voyages, San Francisco-Los Angeles and return, and San
Francisco-Japan and return, arriving San Francisco on April 18, 1956.
Events of April 18, 1956
On April 18, Brown was aboard the vessel when Handelsman came aboard. Brown
went to the chief steward's room where he saw Handelsman, who was accompanied
by two other union men. Handelsman said, "Let's see your receipt. I want to get
some money from you." Brown said that he didn't have a permit or receipt or
anything. Brown told Handelsman that he had given $20 to Handelsman, before
he shipped out, and that he was supposed to pay $60 on his return, but that he
didn't have a receipt and had no permit. Handelsman said, "Well, we probably can
get it straight." Brown then said, "How's chances on me paying the balance after
the loop, after the ship goes to Los Angeles and comes back." Handelsman said,
"Okay. You are a nice fellow. I will let you go to Los Angeles on a ship and come
back, and I will tell the steward to tell the border patrolman in Los Angeles that
everything will be taken care of in Frisco on the return, and I will wait for you
on the dock."
Termination of Brown on April 20
On April 20, before the ship left on its loop trip to Los Angeles, Brown saw
Handelsman again in the chief steward's room aboard the vessel. At this time
Handelsman was accompanied by one of the dispatchers of the Union whose nick-
name was Bumblebee and by one of the men who had accompanied Handelsman
on his prior visit to the ship. Chief Steward Rosa was also there.6
According to Brown, when he walked into the room Handelsman said, "Mr.
Brown I didn't find no receipt. I found a receipt marked `void' all right, but I didn't
find anything about $20 that you gave me." Then Handelsman said that he had
talked the matter over with the president of the Union and that Brown was required
to pay up his dues before the ship left the port, or to get off the ship. Brown said.
"Well you have to give me a few minutes. I want to go out and make a phone call
4 See Transcript, page 62, for Brown's testimony as to this conversation.
5 Charging Party's Exhibit No. 4 is one of these forms entitled "Seaman's Employment
Registration Application."
6 See Transcript, page 75, for this conversation.
PACIFIC TRANSPORT LINES, INC. 1519
to my mother and have her wire the money over here." One of the men with
Handelsman said, "We don't want your money. Get off the ship." But Handelsman
told that individual that he had no authority in the matter and to be quiet. Brown
told Handelsman again that he wasn't going to quit the ship like that, that if the
Union wanted its money he would get it, and he would pay the dues and everything.
Brown also said that if he had been told on the prior occasion that he had to pay
his dues before the ship left port, he would have had the money at that time, that
he had been informed that he could make the trip around the loop, and that now
he was told 2 hours before sailing time that he would have to pay the money or get
off the ship. At that point, Handelsman told Brown that if he didn't quit the ship,
that he would take Brown off "under the Taft-Hartley Act." Handelsman then told
the chief steward to fire Brown. The chief steward said that Brown had done a
good job and that he had to have something to go on, he couldn't fire him just like
that. Handelsman told the chief steward that he was telling him to fire Brown, that
the Union was taking Brown off the ship. Handelsman then said that he knew what
Brown was going to do. He would probably run to Gladstein and the other com-
munists who thought they could do anything they wanted to. Handelsman said
in regard to the $20 payment that Brown was saying that he was a thief, and that
he could sue him. Handelsman then went to the purser's room. Brown and the two
union men followed.
Handelsman knocked on the purser's door and that officer asked what the trouble
was. Handelsman said, "I want this man paid off." The purser asked what was the
cause of the trouble. They explained that it was about some dues. At that point,
Brown asked the purser if the purser would let Brown have the money so that he
could pay the dues. Before the purser could answer Handelsman said, "What are
you trying to do, start trouble on the ship. I told you, you had to get off and that
is it." The chief steward came up and the purser told the steward that he would have
to see the captain, because he didn't have the necessary papers to pay Brown off.
Brown, Handelsman, and the two union men then went to the officers' mess. While
there a crew member by the name of Pete Ladjimi asked Brown what the trouble
was, and Brown told him that the Union was taking him off the ship because he
hadn't paid his dues. According to Brown, Ladjimi then said, in the presence of
Handelsman, "I will pay the dues." He turned to Handelsman and said, "How
much is his dues? I will pay them for him and he can pay me back during the trip.
He is a nice worker and did his job down there and treated us fine. We want him
aboard this ship." Handelsman replied, "Look we don't want his money. He can
get off the ship, and get his money, and come into the hall, and straighten his dues
up, and we will ship him out. Furthermore, you got someone to answer to yourself."
At that point Handelsman walked out of the room. When he returned he shook
his finger in Brown's face and said, "Mr. Brown, I am going to give you a break.
When you get your money, get off the ship, come into the union hall Monday and
register, and I will tell Bumblebee to register you and you can ship out." Brown
asked why he would not accept the money now, and let him stay on the ship.
Handelsman said, "Look, I'm going to give you a break. If you want to make an
issue out of it I will fix it so you will never ship no more. You get your bag packed
and get off the ship. .
This conversation ended about 2:30 in the afternoon. The ship was due to sail
at about 6 o'clock. At about this time the purser told Brown to meet him at the
purser's office about 3 o'clock and he would pay Brown off. Brown also, about
this time, spoke to the chief steward, telling his superior that he wanted a note from
him as to why he was leaving the ship, because he did not wish a recurrence of a
situation like that involving the $20, where it was his word against that of Handels-
man. He wanted something in writing to prove why he was leaving the ship.
Pursuant to his request the chief steward wrote a note which reads as follows: 7
SAN FRANCISCO, CALIF. APRIL 20, 1956.
SS. Philippine Transport
Ernest Brown Taking off ;(sic) By The Union Marine Cook And Stewards
Union A. F. OF L.
(Signed) D. C. ROSA, Chief Steward.
Filing of Charge; Brown Pays Dues and is Shipped
On April 25, 1956, Brown filed the original charge herein with the Board.
On May 4, 1956, Brown again went to the union hall. He told the dispatcher
that he wanted to pay his dues and register for a job. He was referred to Handels-
7 General Counsel 's Exhibit No. 20.
1520 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
man. When he saw Handelsman on this occasion the patrolman urged him to drop
the case, saying Brown didn 't have a leg to stand on , and that Brown would be
coming up for a vote to become a book member in a year or so, and Handelsman
could put in a good word for him. Handelsman then told Brown that he would
have to go up to the SUP Hall to pay the money. Brown then went to the SUP
Hall where he spoke to Maxine Zimmerman , the woman in charge of the office.
She checked with the Union and then told Brown that she would collect his money
and that if he went to the office of the Union he could pick up his permit. She
then asked him to pay the sum of $60 , which he paid and for which he received a
receipt . Brown then brought the receipt back to the union hall and showed it to
the dispatcher who then gave Brown a permit and a shipping card which assigned him
to a job on the Philippine Bear of the Pacific Far East Lines.
On cross-examination by counsel for the Union , Brown said that when the Union
was certified in June 1955 he knew he would be required to pay dues . When he
talked to Handelsman about paying his dues, both Handelsman and he figured
that dues were owing back to April 1955. Brown also said that in the course of
his experience with other unions he always got a receipt when he paid any money
to anybody . He also said that when he talked with Handelsman about a permit,
on the first occasion , he told Handelsman that he didn 't have $120 for dues, because
they both were figuring he owed dues back to April which would amount to $120.
Brown also testified that on the day his employment was terminated he had in his
pocket $60 in cash, but he did not tell anyone that he had the money in his pocket .8
On that occasion , Handelsman demanded that he pay up his dues or get off the
ship, but Handelsman did not demand any specific sum of money as dues. Brown
said that on that day he thought he owed $100 . Brown also said that on April 18
Handelsman seemed friendly , but on April 20 he was angry about Brown saying he
had paid $20 to Handelsman . Handelsman said he had not paid it , and the two
men argued about that subject.
Also in the course of cross-examination by counsel for the Union , Brown admitted
that in the course of his altercation with Handelsman on April 20 , that he had left
the ship for a few moments and talked by telephone with his counsel. He told
Mr. Brotsky that he thought he was being fired unjustly . He was instructed by
counsel to come to his office the next morning and talk the matter over.
It was stipulated by counsel that the Union did not write any letter to the Com-
pany requesting the discharge of Brown prior to the termination of his employ-
ment on April 20, 1956. Later , on May 2 , 1956, the Union , by Ed Turner , inter-
national organizer , wrote a letter to the Company which reads as follows:
GENTLEMEN: In accordance with the provisions of Section 7 (a) of our
collective bargaining agreement , you are hereby advised that Ernest Brown has
failed and refused to pay the dues uniformly required of all members of the
Steward Department . He has been delinquent for many months , and has been
given every opportunity to pay the dues , but has refused to do so. He left
the ship rather than pay dues after he had ben advised of his obligations and
of the intention of the Union to request his discharge in accordance with the
contract if he persisted in his refusal.
This will , also, confirm our request of you that you not sign Brown on for
another voyage because of his refusal to tender his dues.
In addition to the above there were other documents introduced into evidence
which shed light upon the nature of Brown's termination on the Philippine Trans-
port. His "service record" with the Company gave as his reason for leaving,
"removed by union." 9 His "discharge record" also showed as the reason for dis-
charge "Taking ( sic) Off By The Union Marine Cook And Stewards A. F. OF L." 10
Receipt No. 14016
In the course of Brown's direct examination by his counsel he was shown a
photostatic copy of this receipt. The Union had produced it pursuant to a request
of counsel , as being the only receipt in its records applicable to Ernest Brown, on
or about the date of his registration , which at that point in the case was in doubt.
Brown was asked if this receipt was the receipt that Handelsman made out for him
at the time of his registration , which Brown said was November 14. Brown said
s Transcript , page 227 et seq.
9 General Counsel 's Exhibit No. 26.
10 General Counsel 's Exhibit No. 25.
PACIFIC TRANSPORT LINES, INC. 1521
that it was not; that the date November 12, a Saturday and a nonregistration day,
was wrong , since he was at the Union on November 14, a Monday , and a regis-
tration day; that the receipt shown to Brown by Handelsman was green and
white-a different color; that the total amount of this receipt was $85, whereas
his total dues as computed by Handelsman on that occasion were $80. Brown
also pointed out that the instant receipt had the name of a ship , "Harding" written
on it , and he had never sailed on the SS. Harding. And, as related previously,
Handelsman had torn Brown's receipt out of the book and attached it to his other
papers.
At that point , the photostatic copy of receipt No. 14016 was offered in evidence,
over the objection of counsel for the Company and the Union that there was no
proper foundation for its admission in evidence.
The Trial Examiner ruled that since it was the only receipt referable to the
incident , that it had some value as proof of a negative character , and since all the
circumstances and facts concerning it were spread upon the record , that it would be
received in evidence , and that any consideration given to the document would "have
reference to the qualifications with which it is hemmed in.. He also said
that later evidence might shed additional light on the document."
This receipt-a form, contains the following entries which are involved in an
argument made later by the General Counsel.
Dues-2nd, 3rd, 4th, Qtr------------------------------------- $60.00
Initiation
Assessments
Donation-Voluntary Building Fund----------------------------- 25. 00
Total-------------------------------------------------- 85.00
The date of Brown's first registration with the Union was eventually settled by
a stipulation of counsel , who stipulated that based upon the records of the Union
they agreed that Brown registered with the Union on November 14, 1955.
The Union called in its defense Maxine Zimmerman , the secretary to Edward
L. Turner, administrator and executive head of the Union . This witness produced
the original of Receipt Form No. 14016. Across the face of this receipt the word
"Cancelled" was stamped , as shown in the photostat . All counsel examined this
original receipt and then stipulated that the original and a copy on blue paper
remained physically attached in the book, as originally made up. Neither the
original nor the copy had ever been torn from the book along the perforation for
that purpose. Maxine Zimmerman also testified credibly that Brown came to her
office on May 4, 1956 . On that occasion , Brown told her that he wanted to
straighten up his dues so that he could ship out. She went to the records and
took his permit out of the file, showed him the date on the permit and he paid his
dues of $60. In the course of the conversation concerning the amount of his
payment , she asked Brown if he had made any previous payment of dues and he
said that he had not.
Edward L . Turner, the officer of the Union above-referred to, also testified. He
testified , without contradiction , that there were four patrolmen in the port of San
Francisco and that it was their duty to go aboard ships as they came into port and
to speak to the union delegates in various departments aboard the ship. The
patrolmen discussed any grievances which might have arisen during the voyage
and collected the dues of all members . Usually a patrolman attended the payoff
of the ship . The patrolmen had been instructed not to interfere with the contract
existing between the Union and the shipowners . If anyone did not pay dues, the
patrolmen were to notify the office and thereafter Turner would write a letter to
the Company in accordance with paragraph 7 of the contract . The patrolmen
were instructed that they had no authority to take anyone off the ship , that Turner
was the only one who could do that, and that he would do it by letter to the
Company.
Turner testified that Handelsman consulted him about the Brown - case on April
20. On that occasion , Handelsman sought out Turner and told Turner that Brown
had refused to pay his dues, but that Handelsman was going to let him make
the loop trip anyway , and that Brown would pay up on his return . Turner told
Handelsman that the patrolmen had no authority to permit Brown to do that as
the Union was administering the contract without favoritism or discrimination, and
' Charging Party's Exhibit No. 3. See Transcript, pages 67 et seq. and pages 180-181.
476321-58-vol. 119-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it would be unlawful to show special consideration to anyone. He instructed
Handelsman to go back to the ship and tell Brown that he had to pay his dues or
get off the ship.
Turner testified that the Union did not give any extensions of time to pay dues.
He explained that sometimes the patrolmen could not cover all the ships coming
in port at a given time, so some ships left the port without a visit from the patrolmen.
In that event, some delinquent men were lucky, since their dues would not be col-
lected until they returned again , so to that extent they received an extension of
time. He also explained that when a man was taken off the ship by a letter to the
Company pursuant to the contract, that the man lost his seniority on the shipping
list, which seriously affected his chances of reemployment. Usually when a man
was presented with these alternatives, he left the ship voluntarily, paid his dues a few
days later, and then shipped out again without loss of seniority. Turner said that
in the period during which the contract had been in effect, he had removed about
12 to 14 men from ships for nonpayment of dues, by the letter procedure, while
during the same period approximately 3 times that many had left ships voluntarily,
until they could straighten up their dues with the Union. Turner also admitted that
it was possible for a patrolman to give an extension to a man, without the consent
or knowledge of the Union, and he would not know about it unless something
brought it to his attention later. Turner also explained the manner in which a
man acquired membership in the Union. First, he applied for permit membership.
He usually was granted a permit, and then he worked a year and made application
to become a "book" member. If he passed the Union's screening committee, he
was accepted as a book member, and a regular book issued to him.
Turner said that after Handelsman went to the ship to require payment from
Brown on April 20, he came back and told Turner that Brown had voluntarily left
the ship, and that no letter would be required.
There were other witnesses who testified, and other documents received in evi-
dence. The above narrative, however, sets forth the highlights of the testimony.
Concluding Findings
Upon all the evidence I find that the employment of Brown was terminated on
April 20 by Chief Steward Rosa at the instance and request of the Union. Counsel
for the Company in his brief argued that Rosa, the chief steward, did not have
supervisory status. I cannot agree with him, because the Board's prior decisions,12
the contract between the parties, and Brown's testimony as to the duties which
Rosa performed aboard the ship, all establish that Rosa, as a chief steward, is a
supervisor within the meaning of the Act. However, the question remains as to
whether the termination of Brown under the circumstances here existent was a
violation of the Act, or was a proper exercise of their rights under the contract by
the Union and the Company. It is undisputed that Brown was delinquent in his
dues from the effective date of the union-security provision of the contract, until
the date of the termination of his employment. The temporary agreement
between the parties, dated June 23, 1955, contained a union-security provision
which gave employees a 31-day grace period in which to join the Union. On
the expiration of that period Brown was required to obtain and retain member-
ship in the Union as a condition of his employment. This he did not do. He
testified that a delegate on the Mormacrey filled out an application for him and
sent it to Portland. He also testified that on several occasions he called the Union
and asked them to send a man to the ship to enroll him and other employees.
None of these acts relieved Brown of his duty to acquire membership in the Union,
and when 31 days passed, after June 23, 1955, and Brown had not acquired mem-
bership in the Union, he was subject to discharge pursuant to the terms of the
contract.
The General Counsel, however, places the liability of the Respondents on four
separate theories. It is his primary contention that Handelsman gave Brown an
"extension of time" in which to pay dues, and that thereafter the Union could not
revoke such an extension and cause the employer to discharge Brown pursuant
to the contract. I am not persuaded. On April 18 Brown was not only delin-
quent, but he had been delinquent for many months. Even crediting his testimony
that he had paid $20 to Handelsman on November 14, he was still delinquent, and
when. he returned on April 18 he was more delinquent. On that occasion he told
Handelsman that he had paid $20 in November and asked for permission to make
the "loop" before he paid up. Apparently, Handelsman was favorably disposed
12 Pacific Maritime Association, et al ., 112 NLRB 1280 and 100 NLRB 1259.
PACIFIC TRANSPORT LINES, INC . . 1523
towards Brown at that point for he granted him that permission. However, when
Handelsman consulted with Turner, he was told that he had exceeded his authority,
and that Brown could not be shown any favoritism, so Handelsman went back to
the ship and demanded that Brown pay immediately. I can see in this chain of
circumstances nothing which worked to the prejudice of Brown . He was delin-
quent, and he had been given exceptional consideration by the Union up to that
point. Brown, himself, admits that when payment was demanded on April 20, he
had $60 in his pocket, but he never offered that to Handelsman in payment of his
dues. I can attribute no legal effect to the statement by Ladjimi that he would
loan Brown enough money for his dues. Such a statement was not a proffer or
tender of dues by Brown, especially when it is considered that Brown had $60
in his pocket at that moment, when he was telling Handelsman he wanted time to
call his mother to have her wire money to the Union or the ship. It appears
significant to me, also, that Brown obtained legal advice in the course of his argu-
ment with Handelsman on April 20, and thereafter made no offer to pay his dues.
From all the evidence on this point, it appears that Brown was actively evading the
payment of dues. At the time the union-security provision became effective as to
him, he was gainfully employed at union wages aboard the Mormacrey, and he con-
tinued on that ship until October 24, 1955. On November 14, 1955, he told
Handelsman he had only $20, which he could apply on his delinquent dues, but he
promised to clear the arrearage after his first trip. He made a voyage coastwise, and
then one to Japan, arriving back at San Francisco on April 18. When asked for his
dues on that date, he again pleaded poverty to Handelsman and asked for permission
to make the "loop" trip, before being required to pay up. Again, Handelsman
acquiesced to the request. Then, on April 20, when Handelsman finally demanded
payment in full, Brown kept his $60 in his pocket and did not offer the whole or
any part of it to Handelsman as payment of his dues. In that context, Brown's
talk about wanting time to get money from his mother, or borrowing it from Lad-
jimi appears to be a pretext. He had $60 in his pocket which he never offered
Handelsman, and I think it is significant that when Ladjimi offered to make money
available to Brown, he did not accept the offer. And after being removed from
the ship, he did not pay his dues until after he had filed the charge herein. It
seems to me that the principles laid down by the United States Supreme Court in
Radio Officers' Union etc. v. N. L. R. B., 347 U. S. 17, is helpful in considering
this factual situation:
... This legislative history clearly indicates that Congress intended to pre-
vent utilization of union security agreements for any purpose other than to
compel payment of union dues and fees. Thus Congress recognized the validity
of unions' concern about "free riders," i. e., employees who receive the bene-
fits of union representation but are unwilling to contribute their share of finan-
cial support to such union, and gave unions the power to contract to meet
that problem while withholding from unions the power to cause the discharge
of employees for any other reason. Thus an employer can discharge an
employee for nonmembership in a union if the employer has entered a union
security contract valid under the Act with such union, and if the other require-
ments of the proviso are met. No other discrimination aimed at encouraging
employees to join, retain membership, or stay in good standing in a union is
condoned,
Upon the evidence in this case I find that Brown was pursuing the devious course
of the "free rider" mentioned by the Court. He accepted the benefits of the
Union, shipped from the union hall, earned the union scale of wages, in a consid-
erable amount, and then played upon the sympathy of union representatives by
pleas of poverty to gain further "extensions." When at last he was confronted
with his obligation, to pay or get off the ship, he refused to pay and now uses
the Union's past indulgence as a means of prosecuting the Union-and the
Company.
I am in full accord with the rationale of the Board's decision in Aluminum
Workers International Union, etc. (The Metal Ware Corporation), 112 NLRB 619,
which holds that a full and unqualified tender of delinquent dues made at any time
prior to actual discharge, and without regard to when request for discharge was
made, is a proper tender, and a subsequent discharge based upon the Union's
request is unlawful. I am in agreement, that unions should not be allowed to,
forfeit the jobs of their members by union-security provisions harshly or discrimi-
natorily applied.
But, this case is exactly the opposite. It appears to me that Brown pursued his
"free rider" course to its ultimate limit. After gaining considerable indulgence
1524. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from a sympathetic union representative , when faced with the final showdown,
Brown kept his money in his pocket . He made no "full and unqualified tender"
of any amount.
To supply this vital defect, the General Counsel and counsel for Brown propose
that the Board accept this "verbal extension" as a substitute for tender . The new
rule would be that a "full and unqualified tender" of delinquent dues or a verbal
statement of any union official granting additional time to pay dues precludes the
union from exercising its rights under the union -security provision of its contract.
In my opinion this theory of verbal extension ignores what the Congress did in regard
to the "unions ' concern about 'free riders"' (Radio Officers' Union , supra), and
ignores the realities of our industrial life. The "free riders" would have a field
day, and union officials would have no alternative but to act with ironclad rigidity
in the application of union-security provisions . Such a result is not desired by
anyone who gives thought to maintaining practical and stable labor relations, and to
encouraging the use of good will, humanity , understanding , and patience by all
members of our industrial family.
Furthermore , I cannot see any similarity between the facts here and those in
Busch Kredit Jewelry Co., Inc., 108 NLRB 1214 . In that case the 30-day period
in which an employee had to join the union expired on July 25, but the contract
provided for 5 business days' time within which to adjust the cases of recalcitrant
employees . The Board found that the parties to the contract announced to all
employees that they had until July 31 to join the union . On the afternoon of
July 31 two employees were discharged . One of them had actually gone to the
office of the union , applied for a membership and paid his dues on July 31 and
Jiefore he was notified of his discharge . A second employee did not approach the
union for the purpose of becoming a member until August 4 . As to the first em-
ployee, the Board held that the employer and the union had varied the contract's
terms and thereby misled the employees to believe that they had 5 additional days
in which to join the union . As to the second employee, it was held that although
the discharge was subject to reversal , due to the fact that the discharge occurred
on the last day of the grace period , the discharge became valid with the passage
of the remainder of the grace period, and the employee 's failure to obtain member-
ship in the union.
In the present case , Handelsman 's temporary acquiescence in Brown 's request to
make the loop trip , is not equivalent to an agreement between the employer and
the union , which varied the terms of the contract, and it did not mislead Brown
or any other employee to his prejudice . Brown at all times since July 1955, knew
that he was delinquent , and knew that he was subject to discharge , and a man of
his experience must have known that Handelsman 's permission to make the loop
trip was evidence of Handelsman 's friendliness to him, and was not any formal
action of the Union , by which the payment of his dues was officially deferred until
the Philippine Transport came back to the port of San Francisco.
The second theory of the General Counsel is based on the fact that Brown was
discharged without the Union sending a letter to the Company demanding such a
discharge . I find no merit in this contention. The language of the union-security
provision in the contract is clear. The pertinent provision of the contract reads
as follows: "The Employer is obligated to take steps to enforce the provisions of
the first sentence of this subparagraph ( a) only as provided by law, including Sec-
tion 8 of the National Labor Relations Act, and after due notice is received in writing
from the MCS-AFL to the effect that the individual employee is not in compliance
herewith ." In the context this sentence constituted a safeguard for the employer.
It permits the employer to require a letter, if the employer desires to do so, but
allows the employer to discharge an employee who had failed to obtain membership
as required by the contract , without a letter, if the employer is otherwise satisfied
of his legal obligation to do so. It did not place upon the Union and the employer
the duty of proceeding by letter only. For that reason I find no merit in this
contention of the General Counsel.
The third contention of the General Counsel is that Brown was required to pay
$25 to a building fund , which was a charge in addition to the uniform dues and
initiation fees. I can find no evidence supporting such a contention in this testi-
mony. This contention is based solely on receipt No. 14016 which contains the
entry-Voluntary Building Fund-$25. This is the receipt which Brown specifically
and categorically disavowed in his testimony . He said that receipt had nothing to
do with him . Perhaps he is mistaken in that disavowal , but testimony must be
viewed and considered with consistency and in its totality. If this receipt is the
one Handelsman wrote out on November 14, and then canceled, when Brown told
him he had only $20, then this receipt which makes no mention of the $20 payment
LOCAL 106 1525
by Brown to Handelsman , and which is so different from the receipt described in
detail by Brown , casts substantial doubt upon the reliability of Brown 's entire testi-
mony. If this receipt is not the one written out by Handelsman on November 14,
as Brown has testified , then it cannot be accepted as evidence of any point in the case.
Brown 's testimony is undisputed in this record , and is not inherently implausible.
Therefore , I have accepted it, on this point of the receipt , as well as on all other
points. In consequence , I find that receipt No. 14016 is not connected with the
Ernest Brown here involved, and there is no evidence to support the contention of
the General Counsel on this point.13
The General Counsel also contends that the union -security provision of the
contract was not effective until 31 days after June 23, 1955, and that according to
receipt No . 14016, Handelsman had asked Brown to pay dues for the second , third,
and fourth quarter of 1955, and that the payment for the second quarter of that
year was in excess of the right of the Union . That contention , however, is partially
subject to the same infirmity in that it is based in part on receipt No. 14016, which
Brown has rejected.
Putting the receipt aside , and relying on Brown 's testimony , then it appears that
he told Handelsman that he had filed an application for membership from the
Mormacrey , early in the year. On that basis, both Brown and Handelsman were
in agreement on November 14, that Brown owed dues for three quarters in 1955.
In these last two contentions the General Counsel asks in effect that I disregard
the positive testimony of Brown, which is reinforced by numerous significant details,
and find that Brown is mistaken as to that portion of his testimony , but entirely
reliable as to everything else. I do not deem Brown to be that kind of a witness. He
is young, intelligent , and alert . I have credited his testimony on all other points.
I can find no reason in this record why I should not credit him on ' this point, also.
Counsel for the Company urges, with the Union , that Brown quit his employment.
I cannot find that to be the case. It appears that, technically , it may be true that
only the master of a vessel can discharge a member of the crew , but here the chief
steward acceded to Handelsman 's request , and the purser paid Brown off, and the
master did not disavow their acts when he heard of them.
Upon all the evidence I find that the Company discharged Brown at the instance
and request of the Union . However, I find that the action of the Union in causing
the discharge of Brown, and the action of the Company in discharging Brown were
not violations of any section of the Act . I find that Brown 's employment was,
terminated by the action of the Union and the Company , pursuant to a valid union-
security provision of the contract between the parties , and was in all respects lawful.
Therefore I recommend that the complaint be dismissed in its entirety.
13 As noted previously , this document was received with all counsel aware of the fact
that it was received subject to qualifications arising from the surrounding testimony.
Local 106, International Union of Operating Engineers, AFL-
CIO, and Daniel J. McGraw, its agent and Plattsburgh
Ready-Mix Concrete Company, Inc. Case No. 2-CD-147.
February 10, 1958
DECISION AND DETERMINATION OF DISPUTE
On May 27, 1957, Plattsburgh Ready-Mix Concrete Company, Inc.,
filed a charge with the Regional Director for the Second Region, alleg-
ing that Local 106, International Union of Operating Engineers, AFL--
CIO, and Daniel J. McGraw, its agent, had engaged and were engag-
ing in certain unfair labor practices within the meaning of Section 8
(b) (4) (D) of the Act.
Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71
and 102.72 of the Board's Rules and Regulations, Series 6, as amended,
119 NLRB No. 192.