Penobscot Bay Longshoremen's Local 1519, Etc.

National Labor Relations Board - Board Decisions

Mar 30, 1962

136 N.L.R.B. 724 (N.L.R.B. 1962)

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for their mutual aid or pro-
tection, or to refrain from any or all such activities 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 in Section 8(a)(3)
of the Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL offer to Vincent G. Guertin immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss of earnings he may
have suffered as a result of his discharge.
UNITED PARCEL SERVICE, 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.
Penobscot Bay Longshoremen 's Local 1519 [Jarka Corporation
of New England ] and Walter S. Hickson and Ernest Beam.
Cases Nos. 1-CB-690(1-2) and 1-CB-699. March 30, 1962
DECISION AND ORDER
On October 16, 1961, Trial Examiner Sidney Lindner issued his
Intermediate Report herein finding that the Respondent had engaged
in and was engaging in unfair labor practices in violation of Section
8('b) (1) (A) and (2) of the Act and recommending that it cease and
desist therefrom and take certain affirmative action as set forth in
the Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.' The General Counsel filed a brief in support of the Inter-
mediate Report.2
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs, and
the entire record in this case and adopts the findings, conclusions, and
recommendations of the Trial Examiner.
'The Respondent requested oral argument in this case However, as the record and
the briefs in this case adequately present the positions of the parties, the motion is
hereby denied
'The General Counsel filed a motion requesting permission to file its brief late Due
to inadvertence, notice of an extension of time for filing exceptions was not communi-
cated to counsel for the General Counsel As no objections were raised to General
Counsel's motion, we hereby grant it
136 NLRB No. 69.
PENOBSCOT BAY LONGSHOREMEN'S LOCAL 1519, ETC. 725
ORDER
The Board adopts as its Order the Recommended Order of the,
Trial Examiner with a modification of provision 2(e) to read: "Notify
said Regional Director, in writing, within 10 days from the date of
this Order, what steps the Respondent has taken to comply herewith." 3
3In the notice attached to the Intermediate Report marked "Appendix" the words
"Decision and Order" are hereby substituted for the words "A Recommended Order of a
Trial Examiner " In the event that this Order is enforced by a decree of a United States,
Court of Appeals, this notice shall be amended by substituting 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 "
The notice is further amended by adding, at the bottom of the page, the following
sentence atter the sentence beginning "This notice must remain posted " Employees
may communicate directly with the Board's Regional Office, Boston Five Cents Savings
Bank Building, 24 School Street, Boston 8, Massachusetts, Telephone Number LAfayette
3-8100, if they have any question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), was heard in Belfast, Maine, on July 25, 1961, pur-
suant to due notice, with all parties represented and participating in the hearing. An
order consolidating cases, complaint, and notice of hearing based on charges and
amended charges duly filed was issued by the General Counsel of the National Labor
Relations Board on June 13, 1961, against Penobscot Bay Longshoremen's Local
1519, herein called Respondent Union. The complaint alleged in substance that
Respondent Union has engaged in unfair labor practices proscribed by Section
8(b) (1) (A) and (2) of the Act by causing or attempting to cause Jarka Corporation
of New England, herein called Jarka, to discriminate against its employees and
prospective employees in regard to hire and tenure of employment and other terms
or conditions of employment by requiring or causing the discharge of Walter S.
Hickson and Ernest Beam on or about October 24, 1960, and continuing to date
because of their nonmembership in Respondent Union.
By its answer Respondent Union denied the allegation of unfair labor practices.
Memorandums were received on August 17, 1961, from counsel for the General
Counsel and from counsel for the Respondent Union and have been duly considered.
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 JARKA CORPORATION OF NEW ENGLAND
Jarka Corporation of New England is a Massachusetts corporation which main-
tains a place of business and office in the town of Searsport, Waldoboro County,
State of Maine, and various other places of business, warehouses, and other facilities
in the States of Maine, Massachusetts, Rhode Island, and New York, and is and has
been at all times material herein continuously engaged at said places of business and
facilities in providing and performing stevedoring services and related services.
During the year ending December 31, 1960, Jarka, in the course and conduct of its
business operations, performed services valued in excess of $50,000 for firms en-
gaged in interstate commerce and of which services valued in excess of $50,000 were
performed in States other than the State of Maine, wherein Jarka is located. It
was stipulated at the hearing, and I find, that Jarka is and has been at all times
material hereto an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Penobscot Bay Longshoremen's Local 1519 is a labor organization within the
meaning of Section 2(5) of the Act.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The setting and employment practices
The Respondent Union is and has been for some time past the recognized collective-
bargaining agent of Jarka's longshore workers at the port in Searsport, Maine.
In or about October 1959, the parties entered into its present collective-bargaining
agreement which extends for the period October 1, 1959, to September 30, 1962, and
which in article 14 provides:
The union agrees to provide the corporation with all required labor by the
vessel; and the union further agrees not to take part directly or indirectly in
any strike or strikes during the period of this agreement. The corporation
agrees that the union does not have to work a ship that has been diverted from
another port because of a labor dispute affecting the ILA, and that such
refusal to work will not constitute a breach of this agreement.
Employment on the Searsport dock has always been sporadic and basically is part-
time employment for most of the men, who are also engaged in other forms of
endeavor, such as running restaurants, chicken farms, and small merchandising
businesses.
Hartley Fraser, manager in charge of the Searsport operation for Jarka since May
1961, prior to which date he was operating superintendent, testified that there are
under his direction and control for the dock operation a head foreman and six gang
foremen, all of whom are members of the Respondent Union.
When a ship is due to arrive at the port in Searsport, Jarka receives advance
information of its available space and the number of gangs it will require to work
that ship. It is unusual for more than three or four gangs to work a ship. Jarka
and the Respondent Union have for some time maintained an arrangement whereby
Jarka keeps records of all hours worked by the men in a particular foreman's gang
during he course of the year. These men constitute the regular crew under that fore-
man. In an attempt to equalize the number of hours of work to the men in the six
gangs, Jark notifies first the foreman whose gang has worked the least number of ag-
gregate hours and so on up the list depending on the number of foremen and gangs
to be used. The gang foreman, who is also Jarka's hiring boss in turn calls his regular
men, all of whom are Respondent Union members, to shape up for work the follow-
ing day. Jarka also notifies the gang foreman that there is to be work by posting
his name on a bulletin board in various stores and gathering places within a 50-mile
radius of Searsport. When the regular men in the gang see their foreman's name
posted, it is notice to them to shape up for work at the dock the following day.
Leon Annis, president of Respondent Union for 5 years, admitted that gang fore-
men called first on those men in their respective gangs who are members in good
standing in Respondent Union. In the event that the regular men i in any foreman's
gang do not appear at the shapeup, and there is need for others to round out the
gang,2 he picks men from the dockside. They may be men from the other gangs
who were not called to work that particular ship, but are nevertheless members of
Respondent Union. Annis admitted that union members are given preference in em-
ployment over others. Rohde testified that it is Jarka's policy to hire unionmen
first. Thus it is clear from the record that the hiring practice which has existed at
the Searsport dock between Jarka and the Respondent Union is that "unionmen are
to be exhausted first, and then nonunionmen are hired." In fact counsel for Respond-
ent Union during a discussion on a ruling by the Trial Examiner conceded that
"this is a practice that's been going on."
B. The employment of Walter S. Hickson and the events in October 1960 and
March 1961
Werner Rohde, in Jarka's employ for 35 years and the head checker at Searsport
whose responsibility it is to hire checkers testified that Jarka had in its employ for a
number of years six regular checkers, one assigned to each gang. In October 1960,
the number of regular checkers was reduced to four. Rohde testified further that
'All regular men in the gangs were unionmen and throughout the hearing the terms
"regular men" and "unionmen" were used interchangeably
2A gang consists of the foreman, 20 men, and a checker. The checker, however, is
.hired by Werner Rohde, head checker for Jarka
PENOBSCOT BAY LONGSHOREMEN'S LOCAL 1519, ETC. 727
at about this time in a conversation with Gang Foreman Dan Rich, the latter re-
marked that he heard Jarka needed another checker, and inquired if Rohde would
interview Walter Hickson for the job. Rohde saw Hickson on or about October 19,
was impressed by him and subsequently told Rich that he would like to hire him,
but that since all of the other checkers were union members it would be nice if Hickson
joined the Union. Rich told Rohde that he was going to sponsor Hickson's applica-
tion for union membership at the next meeting and that Hickson had the initiation
fee ready to pay to the Union. Rohde also testified that he conferred with regular
checkers Bailey, Keene, and Rogghe when they finished work that day about hiring
Hickson and they indicated it was all right with them. A plan was then worked
out and agreed to between Rohde and the three regular checkers to equalize the
number of hours to be worked by Hickson.
Rohde called Hickson to report for work on the morning of October 24. Because
of rain the men were unable to work, but stood by for 2 hours.
Hickson testified that while he was sitting in Rohde's office, Annis came in and
asked Rohde why he called in Hickson to work rather than a regular union checker.
Rohde explained that he needed another checker and wanted to try out Hickson to
see if he would be satisfactory. Annis told Rohde that Hickson was not a union-
man. Rohde remarked that Hickson had completed an application for union mem-
bership and had turned it over to Foreman Rich who was going to sponsor him at
the next meeting. Annis then said "How do you know we want him in the Union?"
and left the office. Hickson was called by Rohde to work on October 25 and 26
breaking in with regular checkers Keene and Rogghe. On October 26, Annis in the
company of Union Steward Robins and Union Secretary Lowell Keene came to
Rohde's office and asked if he had called in Hickson to work that day. Upon
Rohde's affirmative reply, Annis wanted to know how come Hickson was called in to
work when regular checker Frank Keene was at home and available. Rohde ex-
plained that he had talked over the matter of hiring Hickson with the regular
checkers and, since Frank Keene had an accumulation of hours already worked for
the year, he called in Hickson in accordance with the equalization of hours plan to
which the regular checkers had agreed. Annis said the aggregate hours worked had
nothing to do with the problem, they were concerned with the reason Rohde hired a
nonunionman when a regular union checker was at home and was available for work.
Rohde testified that thereafter he did not call Hickson to come to work as a checker,
because the latter told him he did not want any trouble and would not come down to
the dock unless he was needed and Rohde had no one else to work. Hickson did
however obtain occasional work as a checker when more than four gangs worked a
ship. In addition Hickson shaped up from time to time and was hired by Fraser for
labor work with the warehouse gang. Unable to recall the dates, Hickson testified
that on two occasions when he was chosen for work from the shapeup, he worked 4
hours in the morning then left to go home for lunch. Returning from lunch (or
supper as the case may be) the gangs shaped up before going back to work.
Hickson recalled that on these two occasions, Gang Foreman Robins (the union
steward) was present at the shapeup with Jarka's timekeeper and said there were
a lot of unionmen there and to make sure that the unionmen were called to work
before the others. Hickson was not given work for the last 4 hours of the shift
on the two occasions and was "bumped" because more unionmen were there for the
later shapeup.
At the November union meeting, Hickson's application for membership was
rejected. Lowell Keene, secretary of Respondent Union, testified that according to
the official minutes the reason given was that there were enough men in the Union to
do the job, and in order to protect members of long standing no new members were
to be accepted in the Union.
Rohde testified that on March 25, 1961, it was necessary to stencil a car of paper
from the Great Northern Mill's which had been set on the track sometime between
noon and 1 p.m. Because he did not have anyone else available, he called Hickson
to come in to do the job.
Hickson testified he went to the warehouse waiting for the carmen to take the
paper out so that he could proceed to stencil the rolls, when things came to a stand-
still. Hickson stated "Nobody seemed to be doing anything, just standing around."
Fraser testified that about 1:25 p.m. Robins asked him why Hickson had been
called in for the stenciling job when two unionmen were left waiting at the shapeup.
Fraser, who had no previous knowledge that Hickson had been called in, talked to
Rohde who said he had short notice from Great Northern and since he had to have
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
someone in a hurry he called in Hickson. Fraser then returned to the ship, where
he observed that the longshore crews were on the deck and were not working.
Fraser also testified that Annis and Robins came to him and said the men were not
going to work the ship because there was trouble about Hickson. Shortly thereafter
Hickson left the job and told Fraser that if it meant trouble he was going home.
Fraser replaced Hickson and the work proceeded.
C. The incidents involving Ernest Beam
Ernest Beam, who had hatch-tending experience in longshore jobs, testified that in
mid-November 1960 Gang Foreman Roland Harrison talked with him about a
hatch-tending job in his gang. Because of a death in Harrison's gang the hatch-
tending job became vacant and he wanted an experienced hand. Beam filed an
application for union membership, sponsored by Harrison.
Beam began shaping up at the dock and obtained employment several times.
He was also called by Harrison and told to come in for work.
In January 1961, Beam was advised that his application for union membership
had been rejected.
Beam testified that on February 13, 1961, he worked 4 hours in the morning.
He shaped up again after lunch and was told by Harrison, who was standing with
Jarka's timekeeper, that there were unionmen available now and he would have to
stand by until they were called in first . Beam did not get work that afternoon.
One one other occasion Beam worked an 8-hour shift and the gang had another
3 hours of work to finish the ship. Several of the gangs finished their work. When
the men shaped up after supper, Beam was again told by Harrison that unionmen
were there and Beam was not called in with the gang to finish.
Conclusions
It is clear from the facts found above based on the testimony of Hickson, Beam,
Rohde, and Fraser, which was practically undisputed, and on the admissions of Re-
spondent Union President Annis that the practice engaged in by Respondent Union
and Jarka at the Searsport dock was that union members were to be hired first and
that nonunionmen were permitted to finish out work for which they were hired from
the shapeup when union members were not available. Thus, on this record there is
no doubt that the proximate cause of Hickson's not being called in by Rohde to work
as a checker after October 26, 1960, and his leaving the stenciling job on March 25,
1961, was Annis' insistence that unionmen be given preference in all jobs at the
Searsport dock. Furthermore, his objection to Hickson's employment was because he
was not a union member and there were unionmen available for the jobs. The
obvious purpose of Annis' remarks to Rohde in Hickson's presence was to effect his
removal ,from the job. Moreover, when on March 25, 1961, the union representatives
objected to Hickson's employment and implemented their objections by resort to
economic pressure for the purpose of compelling Jarka to give preferential hiring to
union members and, though Hickson left the job himself, by such conduct Respond-
ent Union caused and attempted to cause Jarka to discriminate against Hickson
within the meaning of Section 8(b) (2) of the Act. N.L.R.B. v. Jarka Corporation
of Philadelphia, 198 F. 2d 618 (C.A. 3), enfg. 94 NLRB 320
The undisputed evidence regarding the practice of union members bumping non-
union men Hickson and Beam from jobs which the latter started reveals that such
practice was maintained and sanctioned by Respondent Union and acquiesced to by
Jarka. Such practice, which redounded to the detriment of nonunionmen and the
advantage of union members, clearly constituted discrimination encouraging mem-
bership in Respondent Union in violation of Section 8(a)(3) of the Act. Respond-
ent Union by maintaining and sanctioning this practice has caused Jarka to engage
in conduct violative of Section 8(a) (3) of the Act, and has thereby further violated
Section 8(b)(2) and (1)(A) of the Act
IV. THE EFFECT OF THE UNFAIB LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union set forth in section III, above, occurring in
connection with the operation of the Employer here involved, set forth in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
PENOBSCOT BAY LONGSHOREMEN'S LOCAL 1519, ETC. 729
V. THE REMEDY
Having found that Respondent Union has violated the Act, I recommend that it
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act. I also recommend that Hickson and Beam be made whole
by the Respondent Union for any loss of pay suffered by them by reason of the dis-
crimination against them, the exact amount of which to be ascertained in the com-
pliance stage.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Jarka Corporation of New England is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Penobscot Bay Longshoremen's Local 1519 is a labor organization within the
meaning of Section 2(5) of the Act.
3 By attempting to cause and causing Jarka to discriminate in regard to the hire
and tenure of employment of Hickson and Beam in violation of Section 8(a)(3) of
the Act, the Respondent Union has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(b)(2) of the Act.
4. By the above conduct the Respondent Union restrained or coerced employees
in the exercise of the rights guaranteed in Section 7 of the Act and thereby violated
Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon the
entire record in the case, it is recommended that Respondent, Penobscot Bay Long-
shoremen's Local 1519, its officers, agents, representatives, successors, and assigns,
shall:
1. Cease and desist from:
(a) Maintaining and sanctioning the practice with Jarka Corporation of New
England which gives preference in employment to union members and whereby non-
unionmen who have started a day's work are "bumped" by union members.
(b) Causing or attempting to cause Jarka Corporation of New England to dis-
criminate against Hickson, Beam, or any other employee or applicant for employ-
ment in violation of Section 8(a)(3) of the Act.
(c) In any like or related manner restraining or coercing employees or applicants
for employment of Jarka Corporation of New England in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Make Walter S. Hickson and Ernest Beam whole for the loss of pay suffered
by reason of the discrimination against them in the manner set forth in the section
entitled "The Remedy."
(b) Notify Walter Hickson and Ernest Beam and Jarka Corporation of New
England, in writing, that it has no objection to the hiring of employees by the said
Company without regard to membership or nonmembership in Penobscot Bay Long-
shoremen's Local 1519.
(c) Post at its business office and meeting hall and at all other places where notices
to members of the Respondent Union are customarily posted, copies of the notice
attached hereto marked "Appendix." Copies of said notice, to be furnished by the
Regional Director for the First Region, shall, after being duly signed by an authorized
representative, be posted by Respondent immediately upon receipt thereof, and be
maintained for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are customarily posted. Reasonable
steps shall be taken by it to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Mail to the Regional Director for the First Region signed copies of the
notice attached hereto marked "Appendix" for posting at the office of Jarka Cor-
poration of New England, said Company willing, in places where notices to the
Company's employees are customarily posted.
(e) Notify the Regional Director for the First Region, in writing, within 20 days
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the receipt of this Intermediate Report and Recommended Order , what steps
it has taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF PENOBSCOT BAY LONGSHOREMEN 'S LOCAL 1519 AND
TO ALL APPLICANTS FOR EMPLOYMENT AND EMPLOYEES OF JARKA CORPORATION
OF NEW ENGLAND
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT maintain nor sanction any practice with Jarka Corporation of
New England which gives preference in employment to union members.
WE WILL NOT approve, maintain or sanction the practice of union members
"bumping" nonunionmen performing day-to-day jobs on ships at the dock or in
the warehouse at the port in Searsport, Maine.
WE WILL NOT cause or attempt to cause Jarka Corporation of New England to
discriminate against any employee or applicant for employment in violation of
Section 8 ( a)(3) of the National Labor Relations Act.
WE WILL NOT in any like or related manner restrain or coerce employees in
the exercise of their rights guaranteed in Section 7 of the National Labor
Relations Act.
WE WILL make whole Walter S . Hickson and Ernest Beam for any loss of
earnings they have suffered because of the discrimination against them.,
PENOBSCOT BAY LONGSHOREMEN 'S LOCAL 1519,
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.
ERS Corporation and Orrington-Evanston Company , a joint
venture t/a Northern Virginia Sun Enterprise I and Washing-
ton Newspaper Guild , Local 35, American Newspaper Guild,
AFL-CIO. Case No. 5-CA-1927. March 30, 1962
DECISION AND ORDER
On December 15, 1961, Trial Examiner Morton D. Friedman issued
his Intermediate Report in the above-entitled proceeding finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the Intermediate
Report attached hereto. Thereafter the Respondent filed exceptions
to the Intermediate Report and a brief in support thereof. The Gen-
eral Counsel and the Charging Party also filed briefs in support of
the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
' The Employer ' s name appears as amended at the hearing.
136 NLRB No. 64.