Permanente Steamship Corp.

National Labor Relations Board - Board Decisions

Feb 10, 1954

107 N.L.R.B. 1111 (N.L.R.B. 1954)

PERMANENTE STEAMSHIP CORPORATION
In consideration of all of the foregoing, I find that the Respondent did not violate Section 8
(a) (1) of the Act, and that the Respondent did not prevent its participating employees from
registering a free and untrammeled choice in the bargaining election held on November 5,
1952.
CONCLUSIONS OF LAW
1. United Steel Workers, CIO, is a labor organization within the meaning of Section 2
(6) and (7) of the Act.
2 Respondent, The Deming Company, Inc., is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
3. Respondent, The Deming Company, Inc., has not engaged in any unfair labor practices
within the meaning of the Act.
4. Respondent, The Deming Company, Inc., did not prevent its participating employees
from registering a free and untrammeled choice in the bargaining election held on November
5, 1952
[Recommendations omitted from publication. ]
PERMANENTE STEAMSHIP CORPORATION and WILLIAM
POWELL
NATIONAL UNION OF MARINE COOKS & STEWARDS and
WILLIAM POWELL Cases Nos. 20 - CA-614 and 20-CB-208.
February 10, 1954
DECISION AND ORDER
On April 28, 1952, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding finding
that the Respondents had engaged in and were engaging in cer-
tain unfair labor practices, and recommending that they cease
and desist therefrom and take certain affirmative action as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent Union filed exceptions to the Inter-
mediate Report.
On January 7, 1953, the Board issued an order reopening the
record, and on February 10, 1953, a corrected order reopening
the record for the purpose of enabling the parties to present
certain evidence deemed relevant to the issues in the case.
Pursuant to these orders, a further hearing was held before
Trial Examiner Hunt. On June 8, 1953, the Trial Examiner
issued his Supplemental Intermediate Report, a copy of which
is attached hereto, reversing inparthis prior findings and rec-
ommending the dismissal of certain allegations of the com-
plaint. He further recommended that the Respondents cease
and desist from certain conduct found to be violative of the Act
and take certain affirmative action. Thereafter, both the
General Counsel and the charging Party filed exceptions to the
Supplemental Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner
made at the hearings and finds that no prejudicial error was
107 NLRB No. 234.
1112 DECISIONS OF NATIONLA LABOR RELATIONS BOARD
committed . The rulings are hereby affirmed . The Board has
considered the Intermediate Report, the Supplemental Inter-
mediate Report , the exceptions and briefs , and the entire
record in the case , and hereby adopts the findings , conclusions,
and recommendations of the Trial Examiner with the excep-
tions, modifications , and additions noted below.
We agree with the Trial Examiner that the Respondent Com-
pany and the Respondent Union violated Section 8 (a) (1) and
Section 8 (b) (1) (A) of the Act, respectively , by retaining an
unlawful preferential hiring provision in their contract .,' How-
ever, we are unable to agree with the Trial Examiner that the
Respondent Company did not also violate Section 8 (a) (1), (2),
and (3 ) of the Act and that the Respondent Union did not also
violate Section 8 (b) (1) (A ) and (2 ) of the Act where the Com-
pany, acting pursuant to this agreement , denied the complain-
ants employment because of their nonmembership in the Union
and referred them to the Union for clearance.2
As discussed in the original Intermediate Report, the
Respondents entered into a collective -bargaining agreement on
July 2, 1949, with an expiration date of June 15, 1951, covering
the employees in the stewards department on the Company's
vessel, the S . S. Silverbow . This contract contained a union-
security clause which provided that " the Company shall give
preference in employment to the members of the Union, and it
is agreed that the Union shall furnish capable and competent
employees as required by the Company from the Union Hiring
Hall ." During the negotiations for anew contract , the Respond-
ent indefinitely extended this agreement.
On July 17 and 24 , 1951, while the foregoing agreement was
in effect , the complainants , all of whom were members of the
Sailors Union of the Pacific , 9 applied at the Company's offices
for positions which were then available in the stewards depart-
ment on the Company's vessel , the S . S. Silverbow . After they
completed written applications for employment , Nicol , the Com-
pany's manager , informed the applicants that the Company had
an agreement with the Union and asked them whether they were
members of that organization . When the complainants replied in
the negative , Nicol told them that if they were cleared through
'Monolith Portland Cement Company, 94 NLRB 1358; Port chester Electrical Construction
Corporation, 97 NLRB 354.
2 In his original Intermediate Report, the Trial Examiner found that the Respondent Company
violated Section 8 ( a) (1), (2), and (3) of the Act and the Respondent Union violated Section
8 (b) (1) (A) and (2 ) of the Act by retaining the unlawful preferential hiring provision in their
contract , and by denying employment to the complainants pursuant thereto. However, after
the case was remanded to the Trial Examiner and a further hearmgwas held, the Trial
Examiner issued his Supplemental Intermediate Report in which he reversed himself to the
extent of finding only that the retention of the unlawful preferential provision in the Respond-
ents' contract violated Section 8 ( a) (1) and Section 8 (b) (1) (A) and recommended dismissal
of the other allegations of the complaints.
a The Sailors Union of the Pacific was at the time of the applications for employment the
collective-bargaining representative for the deck personnel aboard the S. S Silverbow. and
for the employees in the stewards department aboard the Company's other vessel , the S. S.
Cement.
4
PERMANENTE STEAMSHIP CORPORATION 1 113
the Union he would hire them. None of the complainants sought
clearance from the Union . On July 25 when the ship was ready
to sail , the Company secured from the Union a full complement
for the stewards department . It is significant that the prefer-
ential hiring clause mentioned above was continued in a new
agreement , which the Respondents orally reached after the
denial of employment to the complainants , but was eliminated
from the agreement only after the charges were filed herein.
It is settled law that a contractual provision which gives
preferential employment to union members over nonmembers
is not one permitted by the proviso to Section 8 (a) (3). No
contention to the contrary is urged by the Respondents. As the
Respondents continued their discriminatory hiring provision
during the times mentioned herein , we find that the Company
violated Section 8 (a) (1), (2 ), and (3 ) of the Act and that the
Union , as a party to this contract creating these discriminatory
conditions of employment , violated Section 8 (b) (1) (A) and (2)
of the Act.4
The facts disclosed in the record further establish that the
Company denied the complainants employment solely because
of its contractual obligation to grant preferential employment
to members of the Union . Moreover , the Trial Examiner so
found in his first Intermediate Report and the Company filed no
exceptions to this finding . In these circumstances , we find, as
the Trial Examiner originally did, that the Company thereby
violated Section 8 (a) (1), (2 ), and (3 ) of the Act. In addition, we
find that, as the discrimination thus practiced by the Company
against complainants was contemplated by the preferential
hiring agreement, the Union caused the Company to discrimi-
nate against employees in violation of Section 8 (a) (3), within
the meaning of Section 8 (b) (2) of the Act.5 We further find
that this conduct was violative of Section 8 (b) (1) (A) of the
Act. 6
The Union disavows any liability for the discriminatory treat-
ment accorded the complainants . It contends , in substance,"that
the contractual preferential hiring provision , to the Company's
knowledge , was at all times inoperative and superseded by a
valid hiring hall arrangement whereby it cleared qualified
applicants for employment without regard to union membership.
This hiring -hall practice , the Union states, was adopted in con-
formity with its agreement with Pacific Maritime Association,
an organization of West Coast maritime companies . Therefore,
it argues that , as the complainants did not apply for referral
from its hiring hall, it could not be found guilty of discrimina-
tion against them.
4Mundet Cork Corporation, 96 NLRB 1142.
5 International Brotherhood of Boilermakers, etc. (Consolidated Western Steel Corporation),
94 NLRB 1590. a
6New York State Employers Association Inc.; Red Star Express Lines of Auburn, Inc.,
et al., 93 NLRB 127; enfd. 196 F. 2d 78 (C A. 2).
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, regardless of the nature of the Union's contractual
arrangements with Pacific Maritime Association , it is undis-
puted that the Company was neither a member of this associa-
tion nor a party to this agreement . Nor does the record estab-
lish any agreement , arrangement , or understanding between the
Company and the Union that their contractual preferential hiring
provision was to be inoperative or superseded by the hiring
clause in the Pacific Maritime Association contract. On the
contrary, the Union and the Company expressly continued their
preferential hiring clause in their new agreement which they
reached after the Company denied employment to the complain-
ants and it was not until the complainants filed the charges
herein that the Union requested the Company to remove the
unlawful clause . Moreover , Nicol, the Company ' s manager,
whose testimony on other matters the Trial Examiner credited,
credibly testified that, at the time he advised the complainants
to secure clearance from the Union, he was unaware of the
Union's asserted nondiscriminatory referral practices or of the
hiring provisions in the Pacific Maritime Association agree-
ment. 7 Accordingly, we find that the preferential hiring clause
in question was not supplanted by any other hiring arrangement
but was in fact intended as a continuing obligation on the part
of the Company to discriminate in employment in favor of union
members, which it did.' In view of the existence of these dis-
criminatory conditions of employment, which the Union was
responsible for creating , we find, contrary to the Union's con-
tentions and the Trial Examiner's supplemental findings, 9 that
the complainants were not required to seek referral from the
Union in order to hold it responsible for the normal conse-
quences of its acts."
In any event , we are not persuaded that the hiring hall
assertedly adopted by the Union pursuant to the Pacific Mari-
time Association agreement was operated on a nondiscrimi-
natory basis. Without making a definitive finding in this respect,
the Trial Examiner found that the evidence did not establish
7In view of his dispositionofthecase, the Trial Examiner found it unnecessary to determine
whether the Company knew of the Union's alleged nondiscriminatory hiring practice at the
time Nicol told the complainants to secure clearance from the Union.
8 Even were we to find, which we do not, that the Respondents did not intend to enforce the
unlawful preferential hiring clause in their agreement, we would find that the mere retention
of such a clause violated Section 8 (a) (1) and (2) and Section 8 (b) (1) (A) of the Act Monolith
Portland Cement Company, supra; and Port Chester Electrical Construction Corporation,
supra.
9The Trial Examiner's apparent reliance on Jandel Furs (100 NLRB 1390) is misplaced.
Nothing that the Board there said can be construed as placing an obligation on the com-
plainants herein to test the Union's referral practice
ii Indeed, the complainants had reasonable ground to believe that as nonmembers of the
Union, it would be futile for them to seek clearance from the Union. As indicated above,
Nicol informed the complainants after they had filled out their job applications that the Corn-
pany was under agreement with the Union and asked them whether they were members of that
organization. Upon receiving a negative reply, Nicol refused them employment unless they
received clearance from the Union.
PERMANENTE STEAMSHIP CORPORATION 1115
that the hiring hall was operated in such a discriminatory
manner as to make it futile for the complainants to apply for
referral . However, unlike the Trial Examiner, we find that, if
for no other reasons, the Union's shipping rules imposed cer-
tain discriminatory terms and conditions of employment. Thus,
these rules required all job registrants to attend union meetings
as a condition of maintaining their position on the registration
list, 11 and required all members to be current in their dues to
entitle them to register , 13 In addition , the Union ' s failure to
show that nonmembers other than permit card holders, whose
status the Trial Examiner found to be substantially similar to
that of members , were referred to the Silverbow , cast further
doubt on the validity of the Union ' s hiring-hall practice . In such
circumstances , even if we were to agree with the Union, which
we do not , that the Respondents ' contractual preferential hiring
clause was replaced by any other hiring hall provision, we
would find that the Union ' s practice thereunder prescribed
discriminatory conditions of employment , to which the com-
plainants could not be required to submit. 13
THE REMEDY
Having found that the Company violated Section 8 (a) (1), (2),
and (3) of the Act and that the Union violated Section 8 (b) (1)
(A) and (2) of the Act, we shall adopt the Trial Examiner's
recommendations contained in his original Intermediate Report
with the following exception necessitated by his subsequent
reversal of his prior findings of discrimination . In accordance
with the Board' s settled practice , we shall abate back pay for
the period between the date of the issuance of the Supplemental
Intermediate Report and the date of our Decision and Order.
The Regional Director is hereby directed to take all reasonable
measures to assure that the back-pay liability is borne equally
by Respondent Company on the one hand and Respondent Union
on the other.
ORDER
Upon the entire record in this case , and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that:
1. Permanente Steamship Corporation , Oakland, California,
its officers , agents, successors , and assigns , shall:
(a) Cease and desist from:
(1) Encouraging membership in National Union of Marine
Cooks & Stewards , or in any other labor organization of its
"Section 7 of the Union's 1951 shipping rules.
ii Section 1 of the Union ' s 1951 shipping rules.
13In agreeing with this conclusion , Member Rodgers is not to be deemed thereby as con-
curring in prior Board decisions with respect to the legality of hiring hall arrangements
under the Act.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees , by refusing to employ any qualified person or by
discriminating in any other manner in regard to the hire or
tenure of employment or any term of condition of employment
of its employees , except to the extent authorized by Section 8
(a) (3) of the Act.
(2) Recognizing National Union of Marine Cooks & Stewards,
or any successor thereof, as the representative of employees
in the stewards department aboard its vessel S. S . Permanente
Silverbow for the purpose of dealing with it concerning griev-
ances, labor disputes , wages, rates of pay, hours of employ-
ment, or other conditions of employment, unless and until said
labor organization shall have been certified by the Board.
(3) Performing or giving effect to its agreements of June and
July 1951, with National Union of Marine Cooks & Stewards,
which renewed and continued their July 2, 1949, contract, and
to any modification, extension , supplement , or renewal thereof,
and to any superseding contract between them, unless and until
said labor organization shall have been certified by the Board.
(4) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form, join , or assist labor organizations, to
bargain collectively through representatives of their own
choosing , or to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or
to refrain from any or all of such activities.
(b) Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(1) Offer to John Alexander , Merton Deo -Tiska, John
Ferreira, James Hopson , Conlin Murphy, William Powell,
Wayne Seaton , Walter Seubert , Gordon Wilder, and Hwang Chia
Ho, immediate employment aboard the S. S. Permanente Silver-
bow, or placement upon a preferential hiring list for such em-
ployment, as provided in "The Remedy " section of the Inter-
mediate Report with the modification in the Board's Decision.
(2) Upon request , make available to the Board or its agents,
for examination and copying , all payroll and other records
necessary to determine the amount of back pay and the right to
employment or placement upon a preferential hiring list under
the terms of this Decision.
(3) Withdraw and withhold all recognition from National Union
of Marine Cooks & Stewards as the representative of any of its
employees in the stewards department aboard the S. S.
Permanente Silverbow for the purpose of dealing with it con-
cerning grievances , labor disputes , wages , rates of pay, hours
of employment, or other conditions of employment , unless and
until said labor organization shall have been certified by the
Board.
(4) Post in conspicuous places in its offices and places of
business in Oakland, California , including all places where
notices to its employees are customarily posted, and in the
stewards department aboard the S. S. Permanente Silverbow,
PERMANENTE STEAMSHIP CORPORATION 1117
copies of the- notice attached hereto marked "Appendix A." 14
Copies of said notice , to be furnished by the Regional Director
for the Twentieth Region , shall , after being duly signed by this
Respondent ' s representative , be posted by it immediately upon
receipt thereof , and maintained by it for at least sixty ( 60) con-
secutive days thereafter . Reasonable steps shall be taken by
this Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(5) Notify the Regional Director for the Twentieth Region in
writing within ten (10 ) days from the date of this Order as to
what steps this Respondent has taken to comply herewith.
II. National Union of Marine Cooks & Stewards , its officers,
representatives, agents, successors , and assigns , shall:
(a) Cease and desist from:
(1) Causing or attempting to cause Permanente Steamship
Corporation , its officers , agents, successors , or assigns, to
refuse to employ any qualified person or otherwise discrimi-
nate against its employees or applicants for employment in
violation of Section 8 (a) (3) of the Act.
(2) Performing or giving effect to its agreements of June
and July 1951 with Permanente Steamship Corporation, which
renewed and continued their July 2, 1949, contract , and to any
modification, extension , supplement, or renewal thereof, and
to any superseding contract between them , unless and until it
shall have been certified by the Board.
(3) In any other , manner restraining or coercing employees
of, or applicants for employment with, Permanente Steamship
Corporation , its successors or assigns, inthe exercise of their
rights to engage in, or to refrain from engaging in, any or all
of the concerted activities guaranteed in Section 7 of the Act.
(b) Take the following affirmative action , which the Board
finds will effectuate the policies of the Act:
(1) Notify Pe rmanente Steamship Corporation , in writing, and
furnish copies of such notification to the respective individuals
named , that it has no objection to the employment of John
Alexander , Merton Deo - Tiska , John Ferreira , James Hopson,
Conlin Murphy , William Powell , Wayne Seaton , Walter Seubert,
Gordon Wilder , and Hwang Chia Ho.
(2) Post in conspicuous places inits offices in San Francisco,
California, and wherever notices to its members are custom-
arily posted , copies of the notice attached hereto marked
"Appendix B." I Copies of said notice , to be furnished by the
Regional Director for the Twentieth Region, shall , after being
duly signed by this Respondent ' s representative , be posted by
it immediately upon receipt thereof, and maintained by it for
at least sixty (60) consecutive days thereafter . Reasonable
MIn the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted 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."
15See footnote 14.
33759.3 0 - 55 - 72
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steps shall be taken by this Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(3) Mail to the Regional Director for the Twentieth Region
signed copies of the notice attached hereto marked "Appendix
B" for posting, Permanente Steamship Corporation willing,
at the office and places of business of said corporation in
Oakland, California, in places where notices to employees are
customarily posted, and in the stewards department aboard the
S. S. Permanente Silverbow. Copies of said notice, to be fur-
nished by said Regional Director, shall, after being duly
signed by this Respondent's representative, be forthwith
returned to the Regional Director for such posting.
(4) Notify the Regional Director for the Twentieth Region in
writing within ten (10) days from the date of this Order, as
to what steps this Respondent has taken to comply herewith.
III. The Respondents, Permanente Steamship Corporation,
its officers, agents, successors, and assigns, and National
Union of Marine Cooks & Stewards, its officers, representa-
tives, agents, successors, and assigns, shall jointly and
severally make whole John Alexander, Merton Deo-Tiska, John
Ferreira, James Hopson, Conlin Murphy, William Powell,
Wayne Seaton, Walter Seubert, Gordon Wilder, and Hwang Chia
Ho for any loss of pay each may have suffered because of the
discrimination against him, in the manner set forth in "The
Remedy" section of the Intermediate Report, as modified in
the Board's Decision.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended , we hereby notify
our employees that:
WE WILL NOT encourage membership in National Union
of Marine Cooks & Stewards , or many other labor organi-
zation of our employees, by refusing to employ any qualified
person or by discriminating in any other manner in regard
to the hire or tenure of employment or any term or condi-
tion of employment of our employees , except to the extent
authorized by Section 8 (a) (3) of the Act.
WE WILL NOT recognize National Union of Marine
Cooks & Stewards , or any successor thereof, as the repre-
sentative of employees in the stewards department aboard
our vessel S. S. Permanente Silverbow for the purpose of
dealing with said labor organization concerning grievances,
labor disputes , wages, rates of pay, hours of employment,
PERMANENTE STEAMSHIP CORPORATION 1119
or other conditions of employment, unless and until said
labor organization shall have been certified by the Board.
WE WILL NOT perform or give effect to our agreements
of June and July 1951 with National Union of Marine Cooks
& Stewards, which renewed and continued our July 2, 1949,
contract with said labor organization, and to any modifica-
tion, extension, supplement, or renewal thereof, and to any
superseding contract between us , unless and until said
labor organization shall have been certified by the Board.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representa-
tives of their own choosing, or to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of
such activities.
WE WILL offer to the individuals named below immediate
employment aboard the S. S. Permanente Silverbow in the
respective positions previously applied for, or inpositions
substantially equivalent thereto, without prejudice to their
seniority or other rights or privileges, and to the extent
that employment is not immediately available for all of
them we will place their names upon a preferential hiring
list for employment aboard that vessel:
John Alexander William Powell
Merton Deo-Tiska Wayne Seaton
John Ferreira Walter Seubert
James Hopson Gordon Wilder
Conlin Murphy Hwang Chia Ho
WE WILL make whole said persons for any loss of pay
suffered as a result of the discrimination against them.
All our employees are free to become, remain, or refrain
from becoming or remaining, members in good standing of the
above-named labor organization, or any other labor organiza-
tion, except to the extent that such right may be affected by an
agreement in conformity with Section 8 (a) (3) of the Act.
PERMANENTE STEAMSHIP CORPORATION,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for sixty (60) days from the
date hereof, and must not be altered, defaced, or covered by any
other material.
1 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE
TO ALL MEMBERS OF NATIONAL UNION OF MARINE COOKS
& STEWARDS AND TO ALL EMPLOYEES OF, AND APPLI-
CANTS FOR EMPLOYMENT WITH, PERMANENTE STEAM-
SHIP CORPORATION:
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 Permanente
Steamship Corporation, its officers, agents, successors, or
assigns , to refuse to employ any qualified person or other-
wise discriminate against its employees, or applicants for
employment, in violation of Section 8 (a) (3) of the Act.
WE WILL NOT perform or give effect to our agreements
of June and July 1951 with Permanente Steamship Corpora-
tion, which renewed and continued our July 2, 1949, con-
tract with said corporation and to any modification, exten-
sion, supplement, or renewal thereof, and to any super-
seding contract between us, unless and until we shall have
been certified by the Board.
WE WILL NOT in any other manner restrain or coerce
employees of, or applicants for employment with, Perma-
nente Steamship Corporation, its successors or assigns,
in the exercise of their rights to engage in, or to refrain
from engaging in, any or all of the concerted activities
guaranteed in Section 7 of the Act.
WE WILL notify Permanente Steamship Corporation in
writing, and furnish copies of such notification to the
respective persons named below, that we have no objection
to their employment by said corporation:
John Alexander William Powell
Merton Deo-Tiska Wayne Seaton
John Ferreira Walter Seubert
James Hopson Gordon Wilder
Conlin Murphy Hwang Chia Ho
PERMANENTE STEAMSHIP CORPORATION 1 121
WE WILL make whole said persons for any loss of pay
suffered as a result of the discrimination against them.
NATIONAL UNION OF MARINE
COOKS & STEWARDS,
Labor Organization
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for sixty ( 60) days from the
date hereof , and must not be altered , defaced , or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Charges having been duly filed, a consolidated complaint and notice of hearing having been
issued and served by the General Counsel, and answers having been filed by the above-named
Corporation and Union , a hearing involving allegations of unfair labor practices in violation
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, by said
corporation and Union, herein jointly called the Respondents, and individually called Perma-
nente and the Union , respectively , was held upon due notice at San Francisco , California, on
various dates between January 21 and February 7, 1952, before the undersigned Trial
Examiner . The allegations in substance are that . (a) On July 2, 1949, the Respondents exe-
cuted a collective- labor agreement which provided that Permanente would obtain certain em-
ployees through the facilities of the Union and which also contained preferential employment
provisions which were illegal and void because of a failure to satisfy the requirements of the
proviso to Section 8 (a) (3) of the Act; (b ) at all times material , the provisions of said agree-
ment were in full force and effect;' (c) in accordance with the terms of said agreement, at all
times material , the Union has demanded, and Permanente has required , that certain employees
of the latter be obtained through the facilities of the Union, (d) during July 1951, Permanente
refused to employ John Alexander, Merton Deo-Tiska, John Ferreira, James Hopson, Conlin
Murphy, William Powell, Wayne Seaton, Walter Seubert, Gordon Wilder, and Hwang Chia Ho,
herein called the Complainants, because they were not members of the Union in good standing,
nor cleared by the Union for employment with Permanente, and (e) by said acts and conduct
Permanente violated Section 8 (a) (1), (2), and (3), and the Union violated Section 8 (b) (1) (A)
and (2), of the,Act. All parties were represented by counsel, were afforded full opportunity
to be heard , to examine and cross - examine witnesses , to introduce evidence pertinent to the
issues, to argue orally upon the record , and to file briefs and proposed findings and con-
clusions . Briefs were received from the Respondents and have been considered . The Re-
spondent ' s motion to dismiss, made at the close of the hearing and taken under advisement
by me , is hereby denied.
Upon the entire record in the case and from my observation of the witnesses , I make the
following
FINDINGS OF FACT
I. THE BUSINESS OF PERMANENTE
Permanente Steamship Corporation , a Nevada corporation with its principal office and place
of business in Oakland , California , is engaged in the transportation of bulk cement and gypsum
between ports located in the States of California, Washington, and Oegon, and the Territory of
Hawaii . Permanents annually transports said products and other cargo, valued in excess of
$ 100,000 , between ports in said States and Territory . There is no dispute , and I find, that
Permanente is engaged in commerce within the meaning of the Act.
'The execution of the agreement on July 2, 1949, is not alleged as an unfair labor practice.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE UNION
National Union of Marine Cooks & Stewards is a labor organization admitting to member-
ship employees of Permanente
Ill. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
Permanente operates two vessels, the S. S PermanenteSilverbow and the S S. Permanente
Cement, Our issues involve employment aboard the Silverbow in the stewards' department, but
for reasons which will become apparent it should be noted that Sailors Union of the Pacific,
herein called S. U P., has collective-labor agreements with Permanente covering the unli-
censed deck personnel aboard both vessels and was certified by the Board as the representative
of certain employees within the stewards' department aboard the Cement. 96 NLRB 827.
B. Chronology of events
1 The Respondents' contractual relations
On July 2, 1949, the Respondents entered into a collective - labor agreement , the expiration
date of which was June 15, 1951, providing in part:
Section 1 . RECOGNITION AND UNION SECURITY
The Company recognizes the Union as the exclusive representative for the purposes of
collective bargaining of all employees in the Stewards' Department of the S S. Permanence
Silverbow
The Company shall give preference in employment to the members of the Union, and it
is agreed that the Union shall furnish capable and competent employees as required by
the Company from the Union Hiring Hall
About April 15, 1951, pursuant to appropriate notice by the Union under the terms of agree-
ment, nego t iations were opened for anew agreement . On May 6 representatives of the Respond-
ents held their first negotiating meeting. It was agreed that the quoted section should remain
unchanged On May 8 they met again, and no change was made in the quoted section. On June
15 representatives of the Respondents entered into a written agreement that "the existing
collective bargaining agreement between" them was "extended for a period of thirty (30)
days," and that "all sections of the new agreement [to be negotiated] pertaining to wages,
overtime, and welfare fund payments shall be retroactive to and including June 16, 1951."
By oral agreement of the negotiators on July 14, promptly confirmed by them in an exchange
of letters, the contract of July 2, 1949, was further extended until such time as they should
conclude negotiations on a new agreement.
During the latter half of July, representatives of the Respondents negotiated on several
occasions, and on July 31 they reached an oral agreement on a new contract There was no
change in section 1, above quoted. Execution of the new agreement was postponed, however,
until Permanente could prepare adequate copies.
About August 7, Eddie Tangen, secretary - treasurer of the Union, telephoned T. R. Nicol,
operating manager of Permanente These two individuals had participated in the negotiations
Charges had been filed in these proceedings, and Tangen called them to Nicol's attention.
Tangen suggested that section 1 of the new agreement be altered to conform to the language
of an agreement previously executed by the Union and Pacific Maritime Association, an asso-
ciation of employers, and Nicol asked that Tangen submit the language to him for considera-
tion. Tangen did so. On August 15, the Respondent's executed the new agreement, which sub-
stantially revised section 1. Our issues involve the earlier contractual arrangements between
the Respondents, however, and the new section 1 need not be quoted. It is not alleged herein
to be unlawful. It conforms substantially to language approved in National Union of Marine
Cooks and Stewards, 90 NLRB 1099.
2. The Complainants' efforts to obtain employment on the S. S Permanente Silverbow
On July 7, 1951, during negotiations between the Respondents for the new agreement, the
Silverbow was berthed for major repairs. The unlicensed personnel , including employees
PERMANENTE STEAMSHIP CORPORATION 1 123
within the stewards' department, were discharged by Permanente The vessel returned to
operation on July 25, but in the meantime applications for employment aboard it were made
by the Complainants.
As related, the S U. P. represents the unlicensed deck personnel on the Silverbow, who
were among the employees discharged when the vessel was berthed. Obviously, the S. U. P.
was aware of the job vacancies aboard. On or about July 17, Ed Turner, an organizer for
S U. P., suggested to a number of men at the S. U. P hall that they apply to Permanente for
jobs in the stewards' department At that time the only unfilled positions were aboard the
Silverbow.
On July 17 and 24, written applications for employment were made by the Complainants,
Hwang and Powell applying on the latter date, Hopson applying on both dates, and the remain-
der of the Complainants applying on the former date. Nicol interviewed them. Nicol testified,
and I find, that on July 17 the applicants had a spokesman, whom he could not recall by name,
who said that they wished to apply for jobs aboard the Silverbow, and that he gave them
application forms which they filled out and which he examined Nicol testified also, and I
find, that he inquired whether the applicants were members of the Union and, upon receiving
negative answers, told them that if they obtained "clearance" from the Union and were
referred to the vessel he would be glad to hire them. With respect to events on July 24, Nicol
testified, and I find, that Hwang, Hopson, and Powell requested application forms which he
gave them, that they filled out the forms, that he asked whether they were members of the
Union and, upon receiving negative answers, he again said that if they were cleared by the
Union and sent to the vessel he would hire them. Nicol testified also that he could not recall
whether on July 24 the applicants said that they were applying for work on a particular vessel,
but it is clear that he regarded them as applicants for employment aboard the Silverbow.
While Nicol was conferring with the three applicants on July 24, Tangen was in Nicol's office
for negotiations on the new agreement above mentioned . Nicol had interrupted his conversa-
tion with Tangen to step outside his office and interview the applicants. Nicol testified, and I
find, that upon returning to his office, he told Tangen that there were "a few boys outside
making application for positions aboard the ship," and that Tangen did not reply. 2 Nicol also
testified, and I find, that later that day, while Tangen was still in his office, he received
information that the Silverbow would be ready for service the next day, that he asked Tangen
to call the Union to have a crew assigned for the stewards' department, and that Tangen did
so. On July 25 the vessel returned to service, with employees in that department who had been
referred by the Union. The Complainants did not apply to the Union for referral to the vessel
2 Nicol was called as an adverse witness by the General Counsel. Of the 10 Complainants,
Hopson, who made application for employment on both July 17 and 24, and Powell, who made
application on the latter date, were called as witnesses by the General Counsel. Ferreira,
who made application on July 17, was called as an adverse witness by the Union. No other
Complainant testified. The testimony is contradictory. Nicol's testimony has been set forth.
Ferreira testified that on July 17, Alexander was the spokesman for the applicants. Contrary
to Nicol's testimony, Ferreira testified that Alexander did not say that the men were applying
for work on a particular vessel and that Nicol did not make reference to the Union. Hopson
testified that he could not identify the spokesman, nor recall what the spokesman had said to
Nicol, but ,jt does not appear from Hopson's testimony that Nicol referred to the Union on
July 17. Hopson did testify, however, that on July 24 he applied for work on the ilverbow, that
Nicol said that Permanente had a contract with the Union and that the applicants would have to
obtain clearance from the Union. Powell, whose testimony is inconsistent in some respects
with an affidavit which he executed in advance of the hearing, testified that on July 24 he told
Nicol that the applicants wished work aboard the Silverbow and that Nicol said that Per-
manents had a contract with the Union and that clearance from the union was required. I believe
that on both July 17 and 24 applications were made for employment aboard the Silverbow and
that Nicol rejected the Complainants upon the ground that clearance by the Union was needed.
Several reasons require this conclusion. First, Nicol impressed me as a witness who honestly
endeavored to relate the truth His testimony is to be credited. Second, the Complainants
received information about the availability of jobs aboard the ilverbow at the S. U. P. hall.
That labor organization is the representative of employees in the stewards' department aboard
the Cement and, as discussed below, the Union itself contends that S. U. P. sent its members
to make applications for employment aboard the Silverbow, not in a bona fide effort to
obtain employment, but to lay the groundwork for this proceeding. Third, Permanent's
only other vessel, the Cement, was then in operation. Fourth, Nicol understood the applica-
tions to be for work aboard the Silverbow, as is shown by his remarks concerning the need
for clearance by the Union and his statement to Tangen on July 24.
1 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Conclusions
We have seen that on July 2 , 1949 , the Respondents executed a contract containing the pro-
visions quoted above Wehave seen too thatduring June and July 1951 , the Respondents entered
into agreements extending the termination date of the 1949 contract , and that on July 31, 1951,
they reached an oral agreement on a new contract containing the quoted language . It is true
that other language was embodied in the newwritten contract executed on August 15, 1951, but
by that date the discrimination against the Complainants had occurred . The Board has held
that contractual provisions granting preference in employment to union members are unlawful
Pacific Maritime Association , 89 NLRB 894 ; National Union of Marine Cooks and Stewards,
supra Pacific American Shipowners Association , et al , 98 NLRB 582. It is well settled that
by executing or maintaining a contract with such provisions , an employer violates Section 8
(a) (1), (2), and (3) of the Act, and a labor orgamzatioh violates Section 8 (b) (1) (A) and (2)
thereof. Rockaway News Supply Company, Inc ., 94 NLRB 1056; International Longshoremen's
and Warehousemen ' s Union , etc., Waterfront Employers of Washington , 98 NLRB 284 ; Pacific
American Shipowners Association , et al., supra The complaint does not allege the execution
of the July 2, 1949, contract as anunfair labor practice , however . It alleges instead that at all
times material the quoted provisions thereof " were in full force and effect ," and, as we have
seen, those provisions were renewed in extension agreements of June and July 1951. It was
during the latter month that the Complainants applied to Permanente for employment. In
defense, the Union asserted , and offered to prove, that at all times material , regardless of
the extensions of the 1949 contract, in actual practice its hiring hall was so conducted as not
to give effect to the preferential provision of the contract and that referrals to positions aboard
the Silverbow , and to positions with other employers , were made without regard to union mem-
bership . The offer of proof was rejected. The contractual arrangements between the Respond-
ents at times material having contained an unlawful preferential provision , the arrangements
were violative of Section 8 (a) (1) and (2) by Permanente , and Section 8 (b) (1) (A) by the Union,
regardless of the asserted actual nondiscriminatory practice thereunder . Port Chester Elec-
trical Construction Corporation , 97 NLRB 354; Sterling Furniture Company, 94 NLRB 32.
The Union points out that the Complainants applied only to Permanente and did not apply
to it for referral to Permanente . The Union argues that it thus had no opportunity to consider
the Complainants for referral or to engage in any act with respect to them. This defense is
not meritorious . We have seen that Nicol declined to consider the Complainants for employ-
ment because of the contract with the Union . The contract having been unlawful, the Com-
plainants were not obligated to apply to the Union for referral . Mundet Cork Corporation,
et aL, 96 NLRB 1142 , Sterling Furniture Company, supra . Nicol's action constituted, on the
part of Permanente , violations of Section 8 (a) (1) and (3) of the Act, Utah Construction Co.,
95 NLRB 196, and Section 8 (a) (2) thereof . United Hoisting Co.. Inc., 92 NLRB 1642; Vau ghn
Bowen , et al., 93 NLRB 1147.
The complaint does not specifically allege that the Union violated Section 8 (b) (2) and (1) (A)
by causing or attempting to cause Permanente to discriminate against the Complainants. It
alleges instead that at all times material the Union has insisted and demanded that employees
in the stewards ' department aboard the Silverbow be cleared through and dispatched by it in
accordance with the terms of the unlawful contract . At the opening of the hearing , the General
Counsel argued that the allegation of the complaint that Permanente's refusal to hire the
Complainants "because they were not members in good standing in" the Union nor "cleared
by" the Union should be "taken in context" with the allegation that the Union insisted that
employees be cleared through and dispatched by it, and that consequently the complaint should
be construed as alleging that the Union caused and attempted to cause Permanence to dis-
criminate against the specific Complainants . I do not believe that the complaint is fatally
defective because of the failure to allege as specifically as stated . The existence and main-
tenance of the unlawful contract was in itself a demand by the Union that employees be cleared
through and dispatched by the Union, and it is not controlling that the Union did not participate
more fully in Permanente ' s discrimination against the Complainants . The Union 's responsi-
bility is well established. Utah Construction Co., supra , Mundet Cork Corporation , supra,
International Brotherhood of Boilermakers , etc.; Consolidated Western Steel Corporation,
94 NLRB 1590 Accordingly , I find that the Union , in violation of Section 8 (b) (2) and (1) (A),
caused Permanente to discriminate against the Complainants in violation of Section 8 (a) (3).
In any event , assuming arguendo that the complaint is defective in failing to allege specifically
that the Union caused or attempted to cause Permanente to discriminate against the Com-
plainants , it nevertheless is true that Permanente ' s violations of Section 8 (a) (1), (2), and (3),
and the Union ' s violations of Section 8 (b)(1) (A) because of its contractual arrangements with
PERMANENTE STEAMSHIP CORPORATION 1 125
Permanente, were alleged and proved. Therefore, the remedy formulated below would not be
altered.
There remains to be considered the contention of the Union that the Complainants' applica-
tions to Permanente were not bona fide, but were made to create a foundation for this pro-
ceeding. As we have seen, a representative of the S. U P., a rival labor organization, sug-
gested that its members apply to Permanente for employment. The Union asserts that the
Complainants were experienced seamen and acquainted with the practice of seeking referrals
through a labor organization, that a hiring-hall arrangement is not per se illegal, that the
Complainants were unaware of the unlawful provision in the contract between the Respondents,
and yet the Complainants did not seek referral to Permanente by the Union. They applied to
Nicol, and ceased their efforts to obtain the employment when he told them that referral by the
Union was necessary. The Union relies upon the Vaughn Bowen case, supra . I do not believe
that the record warrants a finding that the Complainants' applications were not bona fide. So
far as the record discloses, the Complainants wereunemployed. Although they all presumably
were acquainted with the practice of seeking referrals through hiring halls, they were not
obligated to seek referral to Permanente through the Union. The Vaughn Bowen case is
inapposite because there it was clear from arrangements between the employers and the
labor organization to which the applicants belonged that no employment relationship was
intended to be established. In one instance there was no job opening. Here, however, there
were vacancies aboard the $ilverbow, and whatever the Complainants' expectations of achieving
employment by applying direct to Permanente, there is no reason to conclude that their appli-
cations were arranged jointly by Permanente and the S U. P. or that, had Permanente not dis-
criminated against the Complainants and had the jobs been offered, employment would have
been rejected.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in connection with
the operations of Permanente described in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, I shall recommend
that they cease and desist therefrom and that they take certain affirmative action designed to
effectuate the policies of the Act. It has been found that the contractual arrangements between
the Respondents during June and July 1951, as well as the enforcement thereof with respect to
the Complainants, were violative of Section 8 (a) (1), (2), and (3) by Permanente and Section 8
(b) (1) (A) and (2) by the Union. I shall recommend, therefore, that the Respondents cease and
desist from giving effect to the agreements of June and July 1951, renewing and continuing the
July 2, 1949, contract, or to any modification, extension, supplement, or renewal thereof, or
to any superceding contract between them, unless and until the Union shall have been certified
by the Board, and that Permanente withdraw and withhold all recognition from the Union unless
and until it has been so certified Monolith Portland Cement Company, 94 NLRB 1358„Pacific
American Shipowners Association, et aL, supra ; Mundet Cork Corporation, supra . Nothing in
these recommendations, however, shall be deemed to require Permanente to vary or abandon
any substantive provisions of such contract or to prejudice the assertion by employees of any
rights they may have acquired thereunder.
It has been found that Permanente discriminated against the Complainants in violation of
Section 8 (a) (1), (2), and (3) of the Act, and that the Union caused Permanente to do so in
violation of Section 8 (b) (2) and (1) (A) thereof. There were 9 jobs aboard the Silverbow in
the stewards' department, excluding the job of chief steward which is a supervisory position.
None of the Complainants applied for that position, and in any event it should be excluded
from our computations. Pacific American Shipowners Association, et al , supra. There were
10 applicants, a number of whom applied for the same type of job. 3 While Nicol testified that
3The vacancies were as chief cook, 2nd cook and baker, assistant cook, BR utilityman,
saloon messman, stewards utilityman, saloon pantrymessman, and two crew messmen. The
apppicants applied for work as follows: Hopson as assistant cook or galleyman; Hwang as
galleyman; Deo- Tiska as 2nd cook and baker; Murphy as waiter, room steward, or assistant
cook; Powell as 3rd cook or messman ; and Wilder, Seubert, Seaton, Ferreira, and Alexander
as messmen.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some of the Complainants were unqualified, the only one he named as lacking qualifications
is Alexander, a man of no previous related experience. The job for which Alexander applied
does not require special abilities, however, While it may be that Alexander was unqualified,
the fact is that consideration was not given to his application because he had not been referred
by the Union. The matter of his qualifications can be left to the compliance stages of this
proceeding. I shall recommend that Permanente offer the Complainants, including Alexander
if qualified, immediate employment aboard theSilverbowinthe respective positions previously
applied for and discriminatorily denied them, or in positions substantially equivalent thereto,
without prejudice to their seniority or other rights or privileges If such employment is not
immediately available for all the Complainants by reason of there having been more applicants
than there are jobs aboard the Silverbow, those Complainants for whom no employment is
available shall be placed on a preferential hiring list, with priority in accordance with such
nondiscriminatory practice as had been applied by Permanente in the conduct of its business,
and shall thereafter be offered such employment as vacancies arise and before other persons
are hired for such work The remaining Complainants, and each of them, shall be made whole
by the Respondents, jointly and severally, for any loss of pay he may have suffered by
reason of the discrimination against him by payment to him of a sum of money equal to that
which he normally would have earned from the date when the Silverbow returned to service
after his application, July 25, 1951. tathedate of an offer of employment, less his net earnings
(.Crossett Lumber Company, 8 NLRB 440, 497-8) during said period, the payment to be com-
puted in the manner established by the Board in F. W Woolworth Company, 90 NLRB 289.
Each of the Complainants to be placed upon a preferential hiring list shall be made whole by
the Respondents, jointly and severally, for the loss of pay, if any, which he may suffer by
reason of the discrimination against him by payment to him of a sum of money equal to that
which he normally would have earned from five (5) days after the date of service of this inter-
mediate Report and Recommended Order to the date when Permanente notifies him that he
has been placed upon such preferential list, less his net earnings computed in the manner
aforesaid. I reject Permanente's contention that back pay should not be assessed against it
because it had no alternative but to insist that the Complainants be cleared through the Union.
Cf. Squirt Distributing Co., 92 NLRB 1667
I shall recommend further that the Union notify Permanente, in writing, and furnish copies
to the respective Complainants, that it has no objection to the employment of the Complainants
as recommended herein. The Union shall not be liable for any back pay accruing after five (5)
days from the date such notices are given Absent such notification, the Union shall remain
jointly and severally liable with Permanente for all the back pay that may accrue.
I shall also recommend, in accordance with the Woolworth decision, that Permanente, upon
request, make available to the Board and its agents all pertinent records Finally, in view of
the nature of the unfair labor practices, broad cease and desist orders will be recommended.
Pacific American Shipowners Association, et al., supra
Upon the basis of the above findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the Complainants,
thereby encouraging membership in a labor organization, Permanente has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By contributing support to the Union, Permanente has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (2) of the Act.
4 By interfering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, Permanente has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
5. By causing Permanente to discriminate against the Complainants in violation of Section
8 (a) (3) of the Act, the Union has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (2) of the Act.
6 By restraining and coercing employees intheexerciseof the rights guaranteed in Section
7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the act.
[Recommendations omitted from publication.]
PERMANENTE STEAMSHIP CORPORATION 1 127
Supplemental Intermediate Report and Recommended Order
On April 28, 1952, I issued an Intermediate Report and Recommended Order in this pro-
ceeding. On January 7, 1953, the Board issued an order reopening the record, which was
revised by an order of February 10, remanding the case to the Trial Examiner for the pur-
poses of (1) receiving evidence as described below; and (2) making additional findings of fact,
conclusions of law, and recommendations. In accordance therewith and pursuant to notice,
a reopened hearing was held at San Francisco, California, on February 26, 27, and 28, 1953,
at which the parties adduced additional evidence. Pursuant to leave granted, the General Coun-
sel and the Union thereafter filed briefs, which have been considered. The Respondents' motion
to dismiss, madeat the closeof the imtial hearing and denied by me in the Intermediate Report,
is now granted in part as provided below.
Upon the basis of the entire record in the case and from my observation of the witnesses,
I make the following supplemental and modified determinations.
FINDINGS OF FACT
III. THE UNFAIR LABOR PRACTICES
A. The issue
As recited in the Intermediate Report at page 1124 "the Union asserted, and offered to
prove, that at all times material, regardless of the extensions of the 1949 contract, in actual
practice its hiring hall was so conducted as not to give effect to the preferential provision
of the contract and that referrals to positions aboard the Silverbow, and to positions with
other employers, were made without regard to union membership." The offer of proof was
rejected upon the basis of authorities cited in the Intermediate Report. The record was
reopened by the Board for the purpose of enabling all parties to present evidence relating to
the subject matter of the offer of proof.
As also recited in the Intermediate Report, page 1124, Iheld that "Thecontract between Per-
manente and the Union having been unlawful, the Complainants were not obligated to apply
to the Union for referral to Permanente ." Although the Board, in reopening the record, did
not disclose its reasoning, I deduce that that holding is regarded as erroneous and that the
allegations that Permanente violated Section 8 (a) (2) and (3), and that the Union violated
Section 8 (b) (2), of the Act are to stand or fall according to the evidence adduced at the
reopened hearing. Jandel Furs, 100 NLRB 1390. Ideduce also, in further reliance upon Jandel
Furs that the determination in the Intermediate Report that the "contractual arrangements
between the Respondents at times materialhaving contained an unlawful preferential provision,
the arrangements were violative" of Section 8 (a) (1) by Permanente and Section 8 (b) (1) (A)
by the Umon, is not to be disturbed The present issue is whether the Union's registration and
assignment facilities were closed to the Complainants, only one of whom appears to have
been a member of the Union at the time of their applications to Permanente. If so, any
attempts by them to utilize those facilities in seeking employment aboard the Silverbow
would have been futile and, therefore, unnecessary.
B. Facts and conclusions
Pacific Maritime Association, herein called PMA, is an association of maritime companies
engaged in business on the west coast. PMA is not a party to this proceeding. At times
material, there existed between PMA and the Uniona contract pursuant to which the members
of PMA obtained through the Union employees for the steward's departments of their vessels.
The pertinent provisions of that contract conform substantially to language approved by the
Board in National Union of Marine Cooks and Stewards, 90 NLRB 1099. The contract provided
in part:
... the employers agree to give preference of employment to employees who have
seniority by reason of having been employed by the companies signatory to this agree-
ment ...
The Employers recognize that it has been the practice of such men to offer themselves
for employment through the ilnion's offices, and ... the Employers agree to secure all
1 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlicensed personnel within the classifications covered by this agreement from and
through the offices of the Union.
0
In the event that employees with seniority, as herein defined, are not available to fill
vacancies, then the Union will undertake to supply the Employers with capable, competent
and satisfactory employees. Neither as to such undertaking, nor as to any other portion
of this agreement, shall any employee be discriminated against by reason of either
membership in or non-membership in the Union. The Union will maintain appropriate
registration facilities for applicants for employment to make themselves available for
job opportunities, and will conduct such registration facilities without discrimination
either in favor of or against prospective employees by reason of membership in or tion-
membership in the Union. It is agreed that membership in the Union shall not be a con-
dition of employment of any member of the unlicensed personnel furnished or obtained
in the manners specified in this agreement.
The Union's operations pursuant to the contract with PMA constitute approximately 97 per-
cent of its total operations, the remaining portion being pursuant to arrangements with other
employers such as Permanente. According to the Union, the referral practice adopted under
the PMA contract was also applied to the remaining 3 percent of its operations so that there
existed a uniform referral practice We turn to a description of that practice during 1951. 1
The initial step of one seeking employment through the Union's hiring hall was to register
with the Union's dispatcher. Two shipping cards were prepared by the dispatcher, each bearing
the date of registration, and one was given to the applicant while the other was placed in the
Union's files. It was the practice of the dispatcher to post on a bulletin board in the Union's
offices the notices of available jobs. Applicants who were interested in the jobs delivered
their shipping cards to the dispatcher, who noted the registration dates thereon. Assignments
to the jobs were to be made by the dispatcher to the qualified persons whose shipping cards
bore the earliest registration dates. Upon completionofa period of employment, the employee
again registered with the dispatcher and became an applicant for such other posted jobs as
interested him As noted above, the Union's contract with PMA provided that preference in
employment be given to persons with shipping seniority. Other applicants, if qualified, were
entitled to assignment on the basis of persons lacking seniority. Although the Union's con-
tention that at times material it had a uniform referral practice is in issue, the record does
not warrant a finding that the 3 percent of its operations not covered by the contract with PMA
were handled on a different basis than the 97 percent covered thereby. I find that the referral
practice was uniform.
During the year 1951, 75 persons who had been assigned by the Union worked aboard the
Silverbow. 2 In its offer of proof, the Union asserted that 7 of these persons were nonmembers
of the Union at the times of their assignments to that vessel. These 7 men were permit card
holders at such tunes, however, and in considering their relationship to the Union reference
must be made to the nature of a permit card. Nathan Jacobson, port agent in San Francisco
for the Union at times material, testified in its behalf that a permit card is issued to an
individual upon his application therefor, that it constitutes an initial step toward that indi-
vidual's becoming a member of the Union, and that there is a permit card fee of $ 10, the
purpose of which is to allow the individual to apply for membership. Although Jacobson
testified also that the fee is payable when the individual sees "fit to pay it," that it need not
be paid in order for the individual to obtain assignment, and that some permit card holders
do not become members, I do not believe that, under our issue, there is a substantial differ-
ence between a member of the Union and a permit card holder. This determination is not
dispositive of the issue, however. The fact that only members or permit card holders were
assigned to the Silverbow during 1951 does not establish that there was discrimination by the
Union against other types of applicants for employment aboard that vessel. This is so because
there is no evidence that there were other types of applicants who sought assignments to the
Silverbow The Union's records do not disclose the identity of persons who compete with other
'During 1952, pursuant to a consent decree entered by the United States Court of Appeals
for the Ninth Circuit in a proceeding to enforce the Board's Order in Pacific American Ship-
owners Association, 98 NLRB 582, substantial changes were made in the manner of assigning
persons to jobs in the steward's departments of vessels belonging to members of PMA.
2 A few of those persons were chief stewards, who are supervisory employees.
PERMANENTE STEAMSHIP CORPORATION 1 129
persons for particular assignments by delivering their shipping cards to the dispatcher, as
above described. Jacobson testified that during June and July 1951, a period embracing the
dates of the Complainants' applications to Permanente, noone other than a member or permit
card holder sought assignment by the Union to the Silverbow, but this testimony appears to
have been based upon the fact that persons do not register for assignment to particular ves-
sels, rather than upon any knowledge by Jacobson of the identity of all persons competing for
assignments to the Silverbow Although there is no evidence on the precise point, the employ-
ment records of some of the 7 permit card holders who were assigned to the Sil er w tend
to show a nondiscriminatory referral practice by the Union. Floyd Slaughter received an
assignment to another vessel before issuance of his permit card Joseph L. Fonteno received
2 assignments to another vessel before issuance of his permit card. Ernest Rice and Richard
Harvey were registered, but appear not to have received assignments, before issuance of
their permit cards. Since Slaughter and Fonteno received assignments when their relation-
ship to the Union was merely that of applicants for employment, it may not be inferred that
Rice and Harvey were required to apply for permit cards as a prerequisite to assignment. 3
The General Counsel, in support of his contention that the Union's hiring hall was operated
in a discriminatory manner, relies in part upon the Union's shipping rules. For the period
of Devember 16, 1949, to June 1, 1951, one set of rules, with certain modifications, existed.
The rules need not be recited in detail. It suffices to say that they envisioned the assignment
of members only. The Union asserts, however, that in practice it did not adhere strictly to
the shipping rules, and the record shows that prior to June 1, 1951, both Slaughter and Fonteno
received assignments when their relationship to the Umon was simply that of applicants for
employment. With respect to a modification of the rules, on April 15, 1950, provision was
made for institution of a "swing plan," a system designed to spread the work of 3 jobs among
4 men. The modification provided that the increased work opportunities "must be filled by
members ..." During 1951, however, with an increase in shipping and job opportunities, the
swing plan was terminated. It had been applied to the Silverbow a number of times during
1950, but ony once thereafter.4 Since the original charges in this proceeding were filed on
July 27, 1951, and were served upon Permanente and the Union on July 28 and 30, respectively,
the 6-month period of limitation provided in Section 10 (b) of the Act prevents a finding o^_
unfair labor practices based upon events during 1950. Moreover, the existence of the swing
plan did not preclude the assignments of Slaughter and Fonteno to vessels prior to June 1, 1951,
and since it had been terminated, or was being terminated, when the Complainants made
applications to Permanente, its earlier existence does not warrant a finding that it would have
been futile for them to seek assignments to the Silverbow through the Union.
As recited in the Intermediate Report, the Complainants made applications to Permanente
during July 1951. At that time different shipping rules were in effect. Those rules envisioned
the assignment of both members and nonmembers. Generally, the rules were applicable alike
to all persons seeking assignments, with certain specific provisions being applicable to mem-
bers alone. Such specific provisions did not grant preference in assignments, however. The
General Counsel points out inter a is that the rules provided that persons registering for
assignments must attend at least one-half of the membership meetings between the date of
registration and the date of assignment under penalty of having to reregister, and that persons
who left a meeting early without permission of the membership were also required to rereg-
ister The effect of reregistering was to lessen the chances of prompt employment because,
as noted above, assignments were to be given to the qualified applicants with the earliest
registration dates. Our question is not whether those provisions are violative of Section 8 (b)
(1) (A) because the complaint does not allege that the shipping rules were unlawful. Our ques-
tion instead is whether it would have been futile for the Complainants to have sought assign-
ments through the Umon in accordance with its referral 6ractices above described, and the
$The General Counsel points out that Harvey, who did not pay the permit fee, had only one
assignment aboard the Silverbow. The record shows that on October 22, 1951, 1 week after
the termination of that employment, Harvey registered again with the dispatcher and that, on
February 2, 1952, he paid dues, but it does not disclose his other assignment requests, if any.
4Jacobson produced at the hearing a large number of assignment slips, and testified that
they represented all assignments to the Silverbow during 1951. He testified further that
only one, the assignment of William Johnson on March 3, 1951, by the Wilmington, California,
branch of the Union, was made pursuant to the swing plan. Nicol, the operating manager of
Permanente, testified that so far as he knew, no employee aboard the Silverbow was affected
by the swing plan after approximately 6 months following its inception during April 1950.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provisions do not dispose of that issue If the existence of the unlawful contractual provision
between the Respondents did not absolve the Complainants of any obligation to apply to the
Union for assignments , as the Board apparently has held, the existence of those particular
provisions , in shipping rules which envision the assignment of nonmembers , also did not
absolve the Complainants of such obligation. Since the Complainants did not apply to the Union
for assignments , it cannot be said that those provisions would have been applied to them.5
The record does not disclose the names of nonmembers of the Union, in addition to those
set out above , who sought employment through the Union's hiring hall. Although Jacobson
testified that there were other persons , the Union' s documentary proof was confined to persons
who had worked aboard the Silverbow, and the record does not disclose the number . Whether
it be few or many is not controlling . In the absence of evidence that any person , not a member
or permit card holder , was denied registration or assignment in accordance with the referral
practices above described, and in view of the evidence that Slaughter and Fonteno received
assignments , and that Rice and Harvey registered , before obtaining permit cards , it cannot
be said that at times material the Union's registration and assignment facilities were closed
to the Complainants.6 Some, but not all, of the Complainants testified at the initial hearing.
Hopson testified that he did not seek assignment from tl}e Union to the Silverbow because he
had been expelled by it during 1945, and thereafter engaged in litigation against it which was
pending at the time of the initial hearing Ferreira testified that he formerly had been a
member of the Union, that during June 1951 he had applied for reinstatement and received
a permit card , and that he had sought employment through the Union. On July 5, 1951, prior
to Ferreira ' s application to Permanente , according to the undenied testimony of Jacobson,
Ferreira was reinstated in the Union He did not seek assignment from the Union to the
Silverbow , however, and the record does not disclose that his inability to receive other
employment through the Union during 1951 was because of discrimination against him.
Although the matter is not free of doubt, the record will not support a finding that it would
have been futile for the Complainants to seek assignments from the Union to the Silverbow in
accordance with the Union' s referral practice abovedescribed . Since the Complainants did not
seek such assignments , I conclude that the Union was not put to the test of whether it would
have discriminated against them.7 For the reasons related, I shall recommend that the com-
plaint be dismissed insofar , as it alleges violations of Section 8 (a) (2) and (3) of the Act by
Permanente , and Section 8 (b) (2) thereof by the Union. I shall also recommend revisions in
my Intermediate Report consistent with the following matter.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices , I shall
recommend that they cease and desist therefrom and that they take certain affirmative action
designed to effectuate the policies of the Act . It has been found that the contractual arrange-
ments between the Respondents during June and July 1951 were violative of Section 8 (a) (1)
by Permanente and Section 8 (b) (1) (A ) by the Union Since, however, the Respondents' con-
5 As related in the Intermediate Report , the S. U . P., a rival labor organization , suggested
to the Complainants that they apply to Permanente for the jobs aboard the Silverbow. It is
reasonable to infer that any of the Complainants who were members of the S U P. would
not have been permitted to attend membership meetings of the Union . The constitution of
the Union provides , "... nor shall persons holding membership in any club , association or
society that in any way seeks to engage in the same function as this Union in the work of
furnishing craftsmen for business , as employees , that come under the jurisdiction of this
Union, be eligible to obtain or retain membership in this Union while such affiliation exists."
6The Union asserts , and Permanente denies, that Nicol , Permanente ' s operating manager,
was aware of the Union 's assignment practices when he told the Complainants that if they
were cleared by the Union and assigned to the Silverbow , he would hire them . In view of the
determinations herein, it is unnecessary to recite and resolve the testimony on this issue
7 The General Counsel points to Pacific American Shipowners Association, cited in footnote
1, and to American President Lines , 101 NLRB 1417 , in which the Board found that the Union
had engaged in certain unfair labor practices . Contrary to the contention of the General
Counsel, those cases do not warrant application of "the doctrine of res judicata." The prac-
tices there considered by the Board involved events occurring prior to adoption of the
Union's shipping rules of June 1, 1951, and, in particular , in those cases the Union was put
to the test of whether it would discriminate against particular individuals.
PERMANENTE STEAMSHIP CORPORATION 1 131
tract which contained the unlawful preferential provision is no longer in existence, having
been replaced on August 15, 1951, by a contract the provisions of which are not in issue, as
recited in the Intermediate Report, I shall not recommend that the Respondents cease and
desist from giving effect thereto.
Upon the basis of the findings of fact in the Intermediate Report and this Supplemental
Intermediate Report , and upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1 The Union is a labor organization within the meaning of Section 2 (5) of the Act
2 By interfering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, Permanente has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act
3. By restraining and coercing employees in the exercise of the rights guaranteed in Section
7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act
4 The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act
5 The allegations of the complaint that Permanente has engaged in unfair labor practices
within the meaning of Section 8 (a) (2) and (3) of the Act, and that the Union has engaged in
unfair labor practices within the meaning of Section 8 (b) (2) thereof , have not been sustained.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, as amended,
we hereby notify our employees that-
WE WILL NOT include in our collective-bargaining contracts with National Union of
Marine Cooks & Stewards , or with any other labor organization , any provisions which
require us to give preference in employment to members of such union , except as
authorized in Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce our
employees in the right to self-organization, to form, join , or assist labor organizations,
to bargain collectively through representatives of their own choosing , or to engage in
concerted activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities
PERMANENTE STEAMSHIP CORPORATION,
Employer
Dated.. ......... By .. . .............. ..... ... ................
(Representative ) -(Title)
This notice must remain posted for sixty (60) days from the date hereof, and must not be
altered, defaced, or covered by any other material
APPENDIX B
NOTICE
TO ALL MEMBERS OF NATIONAL UNION OF MARINE COOKS & STEWARDS AND TO ALL
EMPLOYEES OF PERMANENTE STEAMSHIP CORPORATION:
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, as amended,
we hereby notify you that:
1 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT include in our collective -bargaining contracts with Permanente Steam-
ship Corporation , or with any other employer , any provisions which require such em-
ployer to give preference in employment to members of National Union of Marine Cooks
& Stewards , except as authorized in Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees of Per-
manente Steamship Corporation , its successors or assigns , or any other employer, in
the exercise of their rights to engage in, or to refrain from engaging in, any or all of
the concerted activities guaranteed in Section 7 of the Act.
NATIONAL UNION OF MARINE COOKS & STEWARDS,
Labor Organization.
Dated ................ By..............................................................................................
(Representative) (Title)
This notice must remain posted for sixty (60) days, from the date hereof, and must not be
altered, defaced, or covered by any other material.
UNDERWOOD CORPORATION and INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL, Petitioner. Case No.
2-RC-6296. February 10, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Samuel
Korenblatt, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, the. Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent cer-
tain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer withinthe meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer is engaged in the manufacture and assembly
of adding machines, accounting machines , printing calculators,
and writing machines. Its employees have heretofore been un-
represented for purposes of collective bargaining. The Peti-
tioner requests an election among all production and mainte-
nance employees at the Employer' s plants A, B, and C, located
at 575 Broad Street, 480 Bunnell Street, and 190 Gilbert Street,
Bridgeport, Connecticut, excluding factory and office clerical
employees, professional employees, watchmen, guards, and
supervisors as defined in the Act. The Employer and the Inter-
venor, International Union of Electrical, Radio and Machine
Workers, CIO (IUE-CIO), agree with the Petitioner on the
general description of the unit . The parties agreed also to
exclude time clerks, payroll clerks, and assistant foremen.
The parties were in dispute, however, as to the unit placement
107 NLRB No. 240.