Philadelphia Marine Trade Association

National Labor Relations Board - Board Decisions

Sep 21, 1962

138 N.L.R.B. 737 (N.L.R.B. 1962)

PHILADELPHIA MARINE TRADE ASSOCIATION, ETC. 737
Philadelphia Marine Trade Association and its Members : Ameri-
can Export Lines, Inc.; Atlantic & Gulf Stevedores, Inc.;
Morris Boney, Inc.; Bull Insular Line , Inc.; Chester Steve-
doring Co .; Cunard Steamship Co., Inc.; Delaware River Ter-
minal , Inc.; Delval Terminal Corp .; Dichmann , Wright &
Pugh , Inc.; Dugan & McNamara, Inc.; Erb Strapping Co.;
E. W. Costlett & Sons; Haenn Ship Ceiling & Refitting Corp.;
T. Hogan Corp .; Independent Pier Co.; Jarka Corporation of
Phila.; Chas . Kurz Co.; Lavino Shipping Co.; Luckenbach
Steamship Co.; Maritime Ship Cleaning & Maintenance Co.;
R. Markey & Sons, Inc. ; Marlin Service Corp . ; Marra Brothers,
Inc.; J. A. McCarthy, Inc.; Moore-McCormack Lines, Inc.;
Murphy, Cook & Company; Nacirema Operating Co.; North-
ern Metal Co.; Norton , Lilly & Co.; The Penna. Tidewater
Dock Co.; Philadelphia Ceiling & Stevedoring Co.; Philadel-
phia Piers, Inc.; Philadelphia Ship Supply & Lumber Co.;
Pope & Talbot , Inc.; Rice, Unruh & Co.; W. F. Sherwood &
Son; B . H. Sobelman & Co., Inc.; E. Stanton & Son, Inc.;
States-Marine Isthmian Agency, Inc.; Stockard Shipping &
Terminal Corp .; Terminal Service Co.; United States Lines
Co.; United States Testing Co ., Inc.; Universal Terminal &
Stevedoring Corp .; Wilmington-St. Lawrence Shipping Co.,
Inc.; Woodson Contract Company; W. H. Yost Company and
International Longshoremen 's Association , AFL-CIO. Case
No. 4-CA-1981. September 21, 1962
DECISION AND ORDER
On December 14, 1960, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceedings, finding
that the Respondents other than Northern Metal Co. had engaged
in and were engaging in certain unfair labor practices and recom-
mending that they cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Intermediate Report. There-
after, the Respondents and the General Counsel filed exceptions to
the Intermediate Report and the Respondents filed a supporting brief.
Subsequently, by order dated August 2, 1961, the Board remanded
this matter for the purpose of adducing additional evidence. After
further hearing, the Trial Examiner, on February 8, 1962, issued his
Supplemental Intermediate Report, attached hereto, containing fur-
ther findings of fact, conclusions of law, and recommendations with
respect to the evidence adduced at such reopened hearing. There-
after, the Respondents filed exceptions to the Supplemental Inter-
mediate Report with a supporting brief. The Charging Party (ILA)
138 NLRB No. 84.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the General Counsel filed briefs in support of the Supplemental
Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Supplemental Intermediate Report, the excep-
tions and briefs, and the entire record in this case,' and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
with certain modifications indicated below.
As the Trial Examiner found, on June 30, 1959, some 90 A & G
employees, longshoremen members of Local 1291, reported to the
SS Caribe to unload a full cargo of bagged sugar. Upon arrival, they
learned that they were to unload the bags with the use of pallets
rather than slings. They notified their union representatives that
they would not unload with pallets as they considered such an oper-
ation unsafe. The representatives communicated the longshoremen's
decision to Emery, the pier supervisor of A & G, and a compromise
proposal was offered by Emery whereby the longshoremen would
unload the ship with slings and then use pallets for rehandling the
bags on the dock. By the time Local 1291 accepted, however, the
proposal was abruptly withdrawn by William Toner, district man-
ager of A & G, who made his appearance while the union representa-
tives were conferring among themselves. The longshoremen then
left the ship, and worked neither that day nor the following day,
July 1. After several conferences between officials of ILA, A & G,
and PMTA, an employers' association of which A & G was a mem-
ber, an agreement was reached between Toner and J. T. Moock, a
vice president of ILA, whereby the men would start unloading with
pallets and a changeover to slings would be made shortly thereafter.
At 8 a.m. on July 2, the A & G longshoremen began unloading with
the use of pallets. It is clear, as the Trial Examiner found, that bags
of sugar fell from the pallets during the unloading operation. And
Toner admitted that even one falling bag was dangerous. When a
shift to slings was not made by A & G during the morning despite
the complaints of the longshoremen, they refused to return to work
after lunch. The Respondents thereupon advised ILA by telegram
that unless the A & G longshoremen resumed work on the Ca?ibe
at 8 a.in. on July 3, all longshoremen represented by Local 1291
would be locked out throughout the entire port of Philadelphia coin-
mencing July 6. At 8 a.m. on July 3, however, A & G still had not
shifted to slings, and the Caribe longshoremen accordingly continued
to refuse to work. At noon all the other longshoremen members of
Local 1291 in the port of Philadelphia area stopped work to meet
1The Respondent's request for oral argument is denied as the record, including the
briefs, adequately sets forth the issues and the positions of the parties.
PHILADELPHIA MARINE TRADE ASSOCIATION, ETC. 739
at the union hall for a discussion of the lockout threatened by the
Respondents. They were directed by ILA officials to report for
work as usual on July 6. When they did, however, the Respondents
carried out their threat and locked them out. Moreover, the Re-
spondents insisted that the lockout would not be lifted until the
A & G longshoremen resumed work under the unsafe conditions which
had caused them to cease work in the first place. The Respondents
further refused to consider the safety question under the grievance
and arbitration provisions of the contract until the longshoremen
resumed work on the Caribe. On July 21, however, the Respondents
finally receded from their position, agreed to end the lockout, and
likewise agreed to arbitrate the safety question. On the following
day, the arbitrator observed the operation of unloading the bagged
sugar from the Caribe with the use of pallets, and found it to be an
unsafe operation. Thereupon, A & G substituted slings, and the
A & G longshoremen completed their work of unloading the Caribe,
without further incident.
The Trial Examiner found that in the circumstances here present
the quitting of labor by the Caribe longshoremen was because of ab-
normally dangerous conditions for work, and under Section 502 of
the Act was not a strike, even assuming the existence of a no-strike
contract. He further found that the Respondents' lockout of all the
longshoremen in the port because of this protected quitting of labor
was discriminatory and a violation of Section 8(a) (3) and (1) of
the Act. We agree.
We do not agree, however, with the Trial Examiner's further
conclusion that the lockout of the longshoremen also constituted un-
lawful discrimination against members of sister locals normally em-
ployed by Respondents as maintenance men, timekeepers, checkers, or
carloaders. The complaint does not allege that members of these sis-
ter locals (specifically, Locals 1332, 1566, and 1242) were also locked
out by Respondents, nor does the evidence adduced at the hearings lead
us to this conclusion. Accordingly, we find, in the circumstances of
this case, that the Respondents did not discriminate against the other
categories of employees represented by Locals 1332, 1566, and 1242.
The remedy recommended by the Trial Examiner requires some
clarification in another respect also.' Although the longshoremen who
lawfully refused to work the Caribe between July 6 and 22 are not, by
the terms of Section 502, classified as strikers, the Board must never-
theless analogize them to strikers in reaching a backpay determination.
Just as economic strikers are not reimbursed for the time they were
2 We agree with the Trial Examiner that other members of Local 1291, who were not
engaged in a work stoppage against the Caribe, shall be reimbursed for all moneys they
lost as a result of Respondent 's lockout.
662353-63-vol. 138-48
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on strike and did not work, the Respondents herein need not reimburse
the Caribe longshoremen for refusing to work the Caribe. On the other
hand, such longshoremen, when not actually employed, would nor-
mally shape up for other longshore work, and might have worked
other ships coming into the port of Philadelphia, absent the Respond-
ent's lockout. They shall be reimbursed for such lost earnings.
The precise purport of the Trial Examiner's suggestion for modi-
fying our backpay procedures, by leaving to the parties' arbitration
procedure the determination of a backpay amount and its distribution,
is not entirely clear. In any event, the parties are normally free to
arrive at a backpay settlement among themselves, either by negotiation
or through the arbitration procedure under their contract. Accord-
ingly, we see no reason to deviate from our standard practice in back-
pay determinations.
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 the Respondents, Philadelphia
Marine Trade Association and its members, listed in the caption of
this case, with the exception of Northern Metal Co., their officers,
a gents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local 1291, International Long-
shoremen's Association, AFL-CIO, or in any other labor organization,
by locking out or in any other manner discriminating against their
employees in regard to their hire or tenure of employment or any term
or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized by Sec-
tion 8 (a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole all employees unlawfully locked out between the
dates of July 6 and 22, 1959, in the manner set forth in "The Remedy"
section of the Intermediate Report as modified herein.
PHILADELPHIA MARINE TRADE ASSOCIATION, ETC. 741
(b) Preserve and, upon request, make available to the Board, or its
agents, for examination and copying, all payroll and other records
necessary for the determination of the amount of backpay due.
(c) Post at their respective offices, copies of the attached notice
marked "Appendix A." 3 Copies of said notice, to be furnished by the
Regional Director for the Fourth Region, shall, after being duly signed
by the Respondents, be posted immediately upon receipt thereof in
conspicuous places, including all places where notices to employees are
customarily posted, and be maintained for a period of 60 consecutive
days. Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Mail to the Regional Director for the Fourth Region signed
copies of said notice for posting at each of the shapeup places cus-
tomarily used by the above-named ILA Local.
(e) Notify the said Regional Director, in writing. within 10 days
from the date of this Order, what steps the Respondents, and each of
them, have taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleged violations of the Act by Northern Metal Co.
8In the event that this Order is enforced by a 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 "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Local 1291, Interna-
tional Longshoremen's Association, AFL-CIO, or in any other
labor organization by locking out or in any other manner discrim-
inating against employees in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in any other concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8(a) (3) of the Act, as
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL make whole all employees discriminatorily locked out
between July 6 and 22,1959.
PHILADELPHIA MARINE TRADE ASSOCIATION,
Employer.
Dated---------------- By--------------------------------------
(Representative ) ( Title)
-------------------------------------
(Employer-Member Company)
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-WO will notify any of the above-mentioned employees pres-
ently serving in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with the Selec-
tive Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 1700 Bankers Securities Building, Walnut and Juniper Streets,
Philadelphia 7, Pennsylvania, Telephone Number, Pennypacker
5-2612, if they have any question concerning this notice or compliance
with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed and duly served; a complaint, amended complaint,
and notice of hearing thereon having been duly issued and served by the General
Counsel of the National Labor Relations Board; and answers having been filed
on behalf of all the Respondents named above, a hearing involving allegations
of unfair labor practices in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, was held in Philadelphia, Pennsylvania, on
October 10, 11, and 12, 1960, before Trial Examiner C. W. Whittemore.
At the hearing all parties were represented by counsel and were afforded full
opportunity to present evidence pertinent to the issues, to argue orally, and to file
briefs. Oral argument was waived. Briefs have been received from all parties.
Disposition of the Respondents' motions to dismiss the complaint, upon which
ruling was reserved at the conclusion of the hearing, is made by the following
findings, conclusions, and recommendations.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Philadelphia Marine Trade Association, herein called PMTA, is a nonprofit Dela-
ware corporation and maintains its principal place of business in Philadelphia,
Pennsylvania. It is authorized to and conducts collective-bargaining activities with
the International Longshoremen's Association on behalf of its members named herein
who employ labor represented by ILA.
Various members of PMTA are engaged within the port of Philadelphia 1 and
its vicinity in such business enterprises as the operation of foreign and coastal ship-
'The complaint alleges and the answer admits that the "port of Philadelphia" is a term
employed by maritime , governmental , and economic circles to describe the tidal estuary
PHILADELPHIA MARINE TRADE ASSOCIATION, ETC. 743
ping lines, shipping agents for foreign and domestic waterborne freight traffic, the
operation of marine terminals, and the operation of enterprises providing various
services to the maritime industry in and about the port of Philadelphia.
The Respondent members of PMTA collectively have annual receipts of more
than $10,000,000 derived from services supplied by them in connection with the
movement of goods in foreign commerce and domestic interstate commerce and/or
from services supplied by them to firms that are themselves directly engaged in
foreign or interstate commerce.
The complaint alleges, the answer admits, and the Trial Examiner finds that
PMTA and each of its members named as Respondents are engaged in commerce
and aie employers within the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
International Longshoremen 's Association , AFL-CIO, and its Locals 1291, 1332,
1566, and 1242 are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The chief issue raised by the complaint is General Counsel's contention that
between July 6 and 22 , 1959, the Respondents unlawfully locked out and refused
to employ members of Local 1291 , ILA, in the port of Philadelphia. The lockout
was unlawful , he claims in effect, because on June 30 , 1959, and thereafter members
of that Local who had been employed by one PMTA member to unload sugar
cargo declined to work the ship with the equipment provided , believing in
good faith that use of such equipment "would create abnormally dangerous" work
conditions.2
The record reveals small dispute as to the facts that: ( 1) Local 1291 members
declined to work the ship in question ; and (2 ) PMTA for this reason ordered the
lockout of all Local 1291 members in the port. Opposing counsel urge varying
interpretations of these and other relevant facts which will be set out and discussed
below.
As a subsidiary issue it is General Counsel's position , denied by the Respondents,
that as an inescapable result of the unlawful discrimination against Local 1291
members an undetermined number of members of associated ILA Locals-cover-
ing such classifications as checkers and carloaders-were also unlawfully deprived
of employment during the lockout period.
B. The relevant facts
A summary of the main material and chronological facts, based upon documents
-and credible testimony,3 follows:
(1) On June 30 the SS Caribe docked at a Philadephia pier with full cargo of
refined sugar in 100-pound bags.
(2) Through the prevailing hiring method of shapeup, about 90 members of Local
1291 were employed that morning to unload the sugar by Atlantic & Gulf Stevedores,
Inc., hereinafter called A & G, one of the Respondent members of PMTA.
(3) Upon reporting at the pier, employees learned that they would be required
to use wooden pallets, instead of customery slings, to unload the sugar. Some of
these employees promptly sought out and reported to official representatives of their
Local these requirements and stated that they would not unload under such unsafe
conditions.
of the Delaware River and the various sea and water ports and terminals found thereon,
including but not limited to the ports of Wilmington, Delaware ; Chester and Philadelphia,
Pennsylvania ; and Camden and Trenton , New Jersey.
2 Section 502 of the Act provides: "Nothing In this Act shall be construed to require
an individual employee to render labor or service without his consent, nor shall anything
In this Act be construed to make the quitting of his labor by an individual employee an
illegal act ; nor shall any court issue any process to compel the performance by an
individual employee of such labor or service , without his consent; nor shall the quitting
of labor by an employee or employees in good faith because of abnormally dangerous con-
ditions for work at the place of employment of such employee or eniplovees be deemed a
strike under this Act." [Emphasis supplied ]
$ Major contradictions will be resolved in appropriate footnotes.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) ILA representatives came to the pier. They first discussed the problem with
one of A & G's supervisors, Emery, who proposed as a compromise that the men
unload by slings from the ship and use pallets for rehandling on the dock. ILA
agents conferred among themselves and with members and agreed that this proposal
would be acceptable. By the time they reported acceptance to Emery, however, that
latter's superior, Manager Toner, arrived and the proposal was withdrawn.
(5) There followed a telephonic conference between Toner, ILA agents, and
Alfred Corry, executive secretary of PMTA. An impasse was reached when the
employer took the position that the men must use the pallets or leave the pier. The
men left, refusing to use pallets to unload.
(6) Later that day Corry sent the following telegram to Richard Askew, president
of Local 1291:
A DISPUTE AROSE AT PIER 38-40 SOUTH TODAY REGARDING
LONGSHOREMEN REPRESENTED BY LOCAL 1291 ILA INDEPENDENT
REFUSAL TO DISCHARGE BAGS OF SUGAR ON PALLETS WHICH IS
THE EMPLOYER'S PREROGATIVE FROM THE SS CARIBE YOU ARE
HEREBY NOTIFIED THAT UNLESS THE MEN RETURN TO WORK
FOR ATLANTIC & GULF STEVEDORES, INC. TOMORROW MORNING
JULY 1ST 1959 AT 8 AM ON THE SS CARIBE AND SUBMIT WHAT-
EVER GRIEVANCE THEY MIGHT HAVE TO THE GRIEVANCE PROCE-
DURE ESTABLISHED UNDER THE LABOR AGREEMENT NO EM-
PLOYERS IN THE PORT OF PHILADELPHIA WILL EMPLOY LONG-
SHOREMEN REPRESENTED BY ILA LOCAL 1291 STARTING 8 AM
THURSDAY JULY 2ND AND THEREAFTER UNTIL YOU COMPLY
WITH YOUR CONTRACTUAL OBLIGATIONS
(7) Members of 1291 reported for shapeup as usual the morning of July 1, but
upon being informed that A & G insisted that pallets and not slings be used they
voted not to work, and did not.
(8) During the day of July 1 various conferences and telephone communications
occurred between ILA officials and agents, officials of A & G, and Corry. Finally
a tacit agreement was reached between Toner of A & G and J. T. Moock, a vice
president of ILA, that if the men would start unloading with pallets, a changeover
to slings would shortly be made 4
(9) Later during the day Moock advised Corry by wire that men were being
instructed to report for work the next morning, whereupon Corry advised PMTA
members to hire.
(10) Men were hired the morning of July 2 and began unloading with pallets.
ILA officials and agents were present and observing, one at each of the four hatches.
There is no dispute as to the fact that bags of sugar fell from the pallets in un-
loading that morning. While the estimates given by ILA agents considerably ex-
ceeded that offered by Toner, who was also present, the latter admitted that he saw
"five bags an hour" fall off, and that "even one bag is dangerous."
(11) During the morning employees complained to ILA agents and demanded to
know when the shift would be made, as promised, to slings. It is undisputed that
shortly after 10 o'clock Moock asked Toner when he was "going to make the change,"
and that Toner replied that if he "and the delegates would get out of here the change
would be made."
(12) A & G refused to shift to the use of slings , however, and at noon the men
knocked off and declined to return under these conditions. That afternoon Corry sent
Moock and other ILA officials telegraphic notification that "unless longshoremen
resume work on the SS CARIBE at 8 AM Friday, Judy 3rd, no longshoremen rep-
resented by Local 1291 will be hired in the Port commencing Monday, July 6th."
i(13) A meeting of longshoremen was held during the afternoon of July 3, at
which time Corry's above-described wire was read to them and they received in-
structions from the head of Local 1291 to report to regular shapeup points the morn-
ing of July 6.
(14) Counsel for the Respondents conceded at the hearing that there was no
hiring of longshoremen by PMTA members from July 6 to 22, pursuant to Corry's
wire.
* Toner denied emphatically that even "one mention was made" about such an arrange-
ment. Not only because of his observation of Toner as a witness, but because of the
inherent probabilities in the situation, as revealed by events the next morning as to
which there is no dispute, described above, the Trial Examiner cannot accept Toner's
denial.
PHILADELPHIA MARINE TRADE ASSOCIATION, ETC. 745
(15) Between July 6 and 21 many meetings were held with ILA and PMTA officials
present, as well as a Federal mediator On the last-mentioned date the ILA filed a
complaint in equity in the U.S. district court seeking a court order requiring, among
other things, cessation of the lockout. Later the same day the Respondents agreed
to submit the safety question to an impartial arbitrator, his decision to be binding
upon both parties.
(16) On the morning of July 22 the arbitrator, Nochem S. Winnet, in the presence
of the parties, observed the operation of unloading with the pallet equipment. The
same day he issued his report which contained, following his findings, the:
Awards
The use of pallets to unload bagged sugar from the SS CARIBE is not a safe
operation.
(17) With this decision the dispute between the Respondents and Local 1291 ended
and the lockout ceased.
As to the question of affected sister locals, a summary of pertinent facts follows:
(1) Local 1291 is the longshoremen and deep sea local. Its members load and
unload deep-sea ships.
(2) Local 1332 is the coastwise and carloaders local. Members load and un-
load coastwise ships, trucks, and railroad cars.
(3) Local 1566 covers maintenance men, ship cleaners, and carpenters.
(4) Local 1242 has jurisdiction over clerks and checkers, and Local 1242-1
covers the timekeepers.
(5) Each of these ILA locals is covered by contract with PMTA.
(6) It is undisputed that the work of members of these various ILA locals is inter-
related, and that when longshoremen are not employed in loading and unloading,
the workers in the other classifications are also generally without work
(7) Agents of Locals 1242, 1566, and 1332 each testified that although their
members shaped up during the period from July 6 to 22, and except for some few
shortly after July 6, none of such members were hired .5
As to Northern Metal Co.: As to this employer member of PMTA, the record
contains credible and undisputed evidence to the effect that: (1) the PMTA spe-
cifically excluded it from the port lockout of 1291 longshoremen; 6 (2) at a meeting
with counsel for ILA on July 6 agreement was made that ILA would supply long-
shoremen but that (3) on the morning of July 7 the men, including checkers and
clerks, refused to accept the work tickets proffered them. Under these circum-
stances the Trial Examiner will recommend that the complaint be dismissed as
to this Respondent.
C. Conclusions
In the opinion of the Trial Examiner, the preponderance of credible evidence
fully sustains General Counsel's allegations of unfair labor practices as to all Re-
spondents except Northern Metal.
The fact of unsafe conditions in unloading by use of pallets on this ship was not
only established by the arbitrator's report but was tacitly admitted by A & G's
Manager Toner , as noted above.
That longshoremen declined to work because in good faith they believed use of
the pallets was unsafe is not only made plain by testimony of such employees and
their agents , but in effect was conceded during the hearing by counsel for the
Respondents when he stated:
Now I certainly would be idiotic were I to suggest that there is no question of
safety involved in the SS CARIBE, and I would agree that the men on the
SS CARIBE , the longshoremen , had a bona fide belief of an unsafe condition.
The Respondents ' lockout of Local 1291 members, the Trial Examiner believes,
was unlawful and discriminatory within the meaning of Section 8(a)(3) and (1)
of the Act. Section 502 of the Act clearly deprives of merit any contention by
6 The record contains some tenuous testimony by officials of a few employer members
of PMTA to the effect that some attempt to hire members of these locals was made on
and after July 6. Its nature is such-in general being to the effect that instructions to
hire were given to someone else-that the Trial Examiner considers it insufficient to dis-
miss the allegations of the complaint as they may affect such employers. As will be noted
in the section entitled "The Remedy," such matters may more appropriately be explored'
at a subsequent compliance hearing , if required.
6 This company handled military cargo, apparently the reason for the exception.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents that the quitting of work on the SS Caribe was a "strike" and that
therefore provisions of the existing contract were applicable? The PMTA insistence
that the longshoremen endanger their lives by working under unsafe conditions
while the question went through grievance and arbitration proceedings was con-
trary to both law and reason.8
Furthermore, the Trial Examiner finds merit in General Counsel's contention
that ample evidence warrants the conclusion, here made, that the lockout of Local
1291 members resulted in equally unlawful discrimination against members of
sister locals, since much of their employment depended upon longshoremen being
employed. Such conduct affecting members of Locals 1332, 1566, and 1242 was
likewise in violation of Section 8(a)(3) and (1) of the Act, and in support of this
conclusion General Counsel properly cites Radio Officers Union v. N.L.R.B., 347
U.S. 17, for the proposition that "a person is held to intend the natural and fore-
seeable consequences of his conduct."
Finally, since credible evidence shows that PMTA made an exception in the case
of its member Northern Metal Co, and that members of Local 1291 declined to
accept work tickets during the material period, the Trial Examiner concludes and
finds that this Respondent did not engage in any unfair labor practices.
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 their operations as described in section I, above, have a close, in-
timate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, the
Trial Examiner will recommend that they cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondent members of PMTA named in the
caption herein, with the exception of Northern Metal Co., make whole all employees
who, by reason of the Respondents' discrimination against members of the four ILA
Locals named herein, suffered loss of employment and pay during the period from
July 6 to 22, 1959, in accordance with Board policy set out in F. W. Woolworth
Company, 90 NLRB 289. Each employer-member's liability, however, shall be
limited only to moneys which it normally would have paid to employees absent
the unlawful lockout during that period, so that one employer-member shall not
be liable for other than its own normal payroll during that period. (See Galveston
Maritime Association, Inc., 122 NLRB 692.) It is recognized that unless in the
interim the parties reach an equitable settlement as to the amounts due specific
individuals, a subsequent hearing may be required for such determination.
Since the violations of the Act which the Respondents committed are related
to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future is reasonably to be anticipated from their past conduct,
the preventive purposes of the Act may be thwarted unless the recommendations
are coextensive with the threat. To effectuate the policies of the Act, therefore,
it will be recommended that the Respondent cease and desist from infringing in
any manner upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Longshoremen 's Association , AFL-CIO, and its Locals 1291,
1332, 1566, and 1242 are labor organizations within the meaning of Section 2(5)
of the Act.
2. By discriminating in regard to the hire and tenure of employees, thereby dis-
couraging membership in the above -named labor organizations , the Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 ( a)(3) of the Act.
7 In his brief counsel for the Respondent urges : "There being an implicit no-strike
clause in the collective bargaining agreement by virtue of the all-encompassing grievance
and arbitration provision of Section 31, the walkout was both unlawful as a breach of
contract and unprotected as not within Section 502 of the Act "
8 See Knight Morley Corporation , 116 NLRB 140, enfd . 251 F. 2d 753 (C.A. 6).
PHILADELPHIA MARINE TRADE ASSOCIATION, ETC. 747
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by the Act, the Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Northern Metal Co. has not engaged in the alleged unfair labor practices.
[Recommendations omitted from publication.]
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
On December 14, 1960, Trial Examiner C. W. Whittemore issued his Intermediate
Report in the above-entitled proceeding, finding that the Respondents (with certain
exceptions) had violated Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended.
On August 2, 1961, the Board issued an order reopening record and remanding
proceeding to Regional Director for further hearing. The relevant text of the order
reads:
It is hereby ordered that the record in this proceeding be, and it hereby is,
reopened, and that a further hearing be held for the purpose of adducing addi-
tional evidence concerning:
(1) Whether unloading bagged sugar from the S.S. Caribe with pallets
created "abnormally dangerous conditions for work" within the meaning
of Section 502 of the Act.
(2) Whether in refusing to unload the S.S. Caribe the longshoremen acted
in "good faith because of abnormally dangerous conditions for work."
(The date when the charging union first raised the safety issue in justify-
ing the refusal to unload the S.S. Caribe with the use of pallets is material
in this connection.)
(3) Whether the charging union or the Respondents were responsible
for the failure to submit the dispute over the unloading of the S.S. Caribe
to the contract grievance procedure.
(4) The custom and practice in the Port of Philadelphia as it relates to:
(a) method for the settlement of grievance disputes under the contract
grievance procedure.
(b) methods for unloading of bagged sugar from ships, particularly
evidence as to the use of pallets in such unloading.
(5) History of the use of strikes by the charging union against Respond-
ents, and of the use of lockouts as a retaliatory device against the charging
union's strikes and non-submission of grievance disputes to the contract
grievance procedure.
Pursuant to the Board order the Regional Director set the case for reopened hear-
ing, and sessions were held before Trial Examiner Whittemore on various dates
between October 9 and November 14, 1961.
All parties were represented and were afforded full opportunity to present evidence
pertinent to the issues raised in the Board's order. At the conclusion of the hearing
General Counsel declined to waive the right, accorded in the Board order, to have
the Trial Examiner issue his Supplemental Intermediate Report.
Briefs have been received from all parties.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
A. Preliminary statement
Whatever the ramifications of the Board's order in reopening the record, there
appears to be no dispute between the parties that the one basic issue in the case is
whether or not PMTA, in July 1959, for a period of about 3 weeks unlawfully re-
fused to employ, and in effect locked out, members of Local 1291, ILA.
As to this issue the positions of the opposing parties are as follows:
(1) General Counsel and counsel for the ILA contend that PMTA was not priv-
ileged, by language of the governing statute or any interpretation of that law, to
lock out all members of Local 1291 when certain of its members refused, on June
30, 1959, and thereafter, to unload with pallets a cargo of bagged sugar from the
SS Caribe. It is their claim that the refusing longshoremen were protected in their
action by the language of Section 502 of the Act, which states:
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor shall the quitting of labor by an employee or employees in good faith
because of abnormally dangerous conditions for work at the place of employ-
ment of such employee or employees be deemed a strike under this Act.
(2) Counsel for the Respondents maintains , in the reopened hearing as at the
original hearing, that PMTA was privileged to invoke its lockout policy because
Local 1291 did not require its members to work the SS Caribe while submitting the
question of safety to arbitration.
Before turning to other specific points raised by the Board's Order, the Trial
Examiner respectfully suggests , as did General Counsel early in the reopened hear-
ing, that the parenthetical query appearing in (2)-"The date when the charging
union first raised the safety issue in justifying the refusal to unload the SS Caribe
with the use of pallets is material in this connection"-is fully answered in testimony
and documents received at the original hearing. And the Intermediate Report states,
as clearly as the Trial Examiner is able to state, that ( 1) on the morning of June 30,
1959, the members of Local 1291 reporting for work in unloading the SS Caribe,
which had docked that morning, declined to work upon learning that they would
be "required to use wooden pallets instead of customary slings," and ( 2) some of
these employees promptly sought out and reported these requirements to official
representatives of their Local and "stated that they would not unload under such
unsafe conditions ." As the report describes , the union officials the same morning
supported the position taken by the members in conferences with supervisors of the
stevedoring company involved , a member of PMTA.
No evidence was offered at the reopened hearing to rebut or to suggest amendment
to the findings referred to.
B. The "history" of strikes and lockouts in the port of Philadelphia
The Trial Examiner confesses his inability to find in the Board order-express
or implied-any indication of what relevance it considers such "history" may have
to the chief issue in the case , which the Board in the same order, at point ( 2), ap-
parently recognizes to be "whether in refusing to unload the SS Caribe ( on June 30)
the longshoremen acted in `good faith because of abnormally dangerous conditions
for work."' While from a monistic philosopher's point of review , some help in de-
termining precisely why one human performed a specific act yesterday may be found
in musing and meditating upon the "history " of all past conduct by the species, the
Trial Examiner doubts if the Board wishes him to engage in such prolonged and
mystic exercise . In any event , the Trial Examiner permitted all parties to place in
evidence , by testimony or documents, whatever material each considered to be
"history" as the broad order calls for, but solicited no more.
In the opinion of the Trial Examiner , none of such evidence of general "history"
as was adduced bears upon the question as to why the longshoremen declined to
unload the SS Caribe with pallets on June 30, 1959, any more than would the history
of all the world's conflagrations assist in determining whether or not it was a fact
that Mrs. O'Leary's cow precipitated the great Chicago fire of 1871.
Perceiving no guidelines in the Board order as to what it considers relevant in such
general history, the Trial Examiner finds himself in an awkward predicament. He
has been directed to make "findings of fact." He fully recognizes his duty to follow
directives . There is considerable testimony in the record as to many strikes and
lockouts since 1952, when PMTA's policy of "lockout" was adopted , according to
Alfred Lynch, the first executive secretary of that association of employers, and to
Alfred Corry, his successor and present executive secretary. Since most of such
testimony was undisputed and unchallanged-except on the ground of relevancy-
the events they describe may appropriately be set down as findings of fact. To be
fair and comprehensive it would be necessary to repeat in this report all that each of
these two officials testified about on these subjects , if the general "history" is to be
written in terms of findings . Such procedure would appear to offend the principles
of economy as they relate to space and time.
In summary , however, it is here noted that counsel for the Respondents stated dur-
ing the hearing,
I am going to give you my assurance that never was there a strike over the
use of pallets, except in the Caribe case, and in the previous Jarka case and in
one other instance , and the two previous instances did not result in any
lockout.
"Shortly after this statement counsel for the ILA said , "We will concede that" until
the Caribe incident there had never been a strike on the Philadelphia waterfront con-
cerning the use of pallets.
PHILADELPHIA MARINE TRADE ASSOCIATION, ETC. 749
During the same recorded discussion counsel for the Respondents reiterated his
contention that "pallets were the issue" when the Caribe was "knocked off."
The "Jarka" incident, occurring before the Caribe strike and lockout and which
counsel for the Respondents referred to in ,the above-quoted statement, is described
in a later section. Credible evidence establishes that no formal "strike" but only a
brief work stoppage actually occurred, and counsel conceded that no lockout
followed.
C. Grievance procedure
Findings in this section will be made on points (4)(a) and (3) of the Board's
order. These are, in summary, the "method" for the settlement of grievance dis-
putes, as shown by "custom and practice" in the port of Philadelphia, and the ques-
tion of fact as to whether the ILA or PMTA was "responsible" for the "failure to sub-
mit",the Caribe dispute to such grievance procedure.
No party offered evidence concerning grievance procedure methods practiced
earlier than 1947, although according to former Executive-Secretary Lynch of
PMTA contractual relationships existed between the ILA and shipping interests as
far back as 1910.
From the time PMTA was formed in 1947, according to Lynch's testimony, until
1950 or 1951, all grievances and disputes between the ILA and the employers'
association were settled "without any work stoppages or anything else on the
Delaware River," by conferences between PMTA representatives and ILA's vice
president, Paul E. Baker, assigned to the port of Philadelphia and second in command
to International Vice President Joseph Ryan. Baker died in June 1951.
After Baker's illness caused his withdrawal from grievance meetings, also according
to Lynch's undisputed testimony, the ILA failed to submit disputes to any grievance
procedure or arbitration, as the existing contract called for, but simply "knocked off"
the ship involved. As a result of the ILA's action, Lynch testified, in January of
1952 PMTA drew up and invoked for the first time its lockout policy: calling
upon all its members to refuse to hire any member of the particular ILA local
involved in the primary dispute. (It is noted, in passing, that the facts of this first
lockout dispute were not fully litigated at the hearing, as was the one lockout dis-
put in issue here, the Caribe incident. Lynch said, however, that the ILA did not
"want to take . . . to arbitration" the dispute involved in .the 1952 lockout-that
of dirty sugar bags-because "they claimed it wasn't provided for under our con-
tract," indicating that there might well have been a coexisting question as to the
interpretation of the contract itself.)
The substance of the testimony by Corry, Lynch's successor as executive secretary
of the PMTA, on the subject of grievance procedure is to the effect that since 1954,
and under successive contracts, it has been the practice when some dispute arose
for a committee of two PMTA members to meet with ILA representatives and seek
settlement of that dispute. If they succeeded, the matter was dropped. If they
failed, the dispute was referred "automatically" to an arbitrator.
In the late spring of 19511 Father Dennis Comey, S.J., founder and director of St.
Joseph's College and Institute of Industrial Relations in Philadelphia, with approval
of ILA and PMTA officials and the persuasion of counsel for the Respondents,
agreed to serve as a "permanent" arbitrator ("permanent" being used in its relative
sense ), although the then current contract called for submitting such disputes to
the American Arbitration Association.
From 1951 until about a month before the Caribe dispute, in June of 1959, Father
Comey served as port arbitrator. During that long period he issued about 70 awards.
They are in evidence. When counsel for the Respondent questioned Father Comey
on matters in apparent support of a compilation of awards, also in evidence, showing
that his awards were nearly 3 to 1 in favor of the employers, the former port arbitra-
tor declared, in part:
Could I say a word in here? I think it will clarify this whole issue.
First of all I object and I constantly object and I will object again and again
to the count of awards and separating them, pro and con. (It) is a false issue.
I don't count cases; I weigh them. I don't care how many of them have gone
one way or another. To me that makes no difference whatever. Moreover, in
counting cases, it doesn't take into consideration that there were any number of
situations where agreement was made and either went one way or the other.
In any number of cases, and . I am sure the employers are aware of it,
there were times when they were being reluctant . . to face a fact, and I would
pull them aside and say "Get with it" and in that case they made the decision
and I accepted it.
There were other instances where I made it very clear that if the long-
shoremen had a thoroughly good case and legitimate grievance but were unable
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or unequipped through no fault of their own to process the case, I would have
no reluctance whatever to help them.
. .. I was interested in justice.. -. . If they had a good case and just, which
.. . demanded they get redress, then I was perfectly willing to serve in the
cause of justice by accepting them.
By the same token, I had made it clear that any time they gave me a case that
had no merit then I would be just as firm in exposing the situation.
There were situations where that happened. Some of these men well know
that we had a case on a ship one time that had been caught in a hurricane and it
was packaged cargo. The employers were making a great to-do about the fact
that this ship had been worked in Wilmington without any protest. My answer
to that was, first of all, the longshoremen don't have to claim unusual distress,
but if they do claim it, then we examine the case to find out.
What (had) happened in Wilmington, had no bearing on the situation at all.
The longshoremen were making a mistake of talking about damaged cargo. .
There I had to point out to them, and I . did, that the case was more of
unusual distress. . . . Every time a man pulled a case out with a mark on it, he
ran the risk of having a dozen come down on top of him.
I helped the longshoremen then. Those cases don't appear in formally written
awards. A formally written award standing alone is not a good measurement.
Early in 1952 the ILA and the PMTA entered into a written agreement. Pertinent
excerpts follows:
2. Father Comey appointed impartial arbitrator to resolve all disputes arising
under the existing agreement which can not be settled by the parties.
3. The authority of Father Comey is unlimited within the limits of the existing
agreement and the right to establish his own procedure.
4. There will be no interruption of work or work stoppage authorized by
representatives of the union or the association.
The general rules followed thereafter by Father Comey are well described in his
testimony:
I made a basic rule that in the event of some dispute or grievance the working
man, whoever they might be, whether they were longshoremen or what not,
would be given prompt inspection of the conditions of the ship.
The reason for that is important because the working conditions on a ship
might change within a matter of one or two hours. If they were given prompt
attention, prompt study and oftentimes a prompt decision, grievances would
be eliminated.
In return, the stipulation was made that there was to be no work stoppage.
In other words, in return for prompt inspection, prompt grievance study and
prompt arbitration proceedings there would be no work stoppages on any ship.
In implementation of that rule, I consistently refused to handle any arbitra-
tion work unless and until the men resumed their work.
The record contains a large volume of all arbitration awards made down through
the years. The Trial Examiner has reviewed them, but considers none of them
relevant to the issues in this case. As noted heretofore. counsel agreed that no
lockout before the Caribe incident had followed any strike over the unloading of
bagged sugar by use of pallets instead of stings.
Father Comey, however, did provide an answer to the one question which the
Trial Examiner believes to be relevant. The colloquy is quoted:
TRIAL EXAMINER: I have just one question. Father, this question is raised
by the practice which I understand you followed in accordance with the rule
that the men should continue at work while you were at the waterfront inves-
tigating the matter.
I would ask you if in your long experience the issue ever came before you
of men walking off the job because they considered the work they were doing
to be unsafe?
The WITNESS: Men would stop work because of unsafe conditions. That
would come under the contractual heading frequently of a complaint alleging
unusual distress and the men would stop their work. It was up to the em-
ployer to correct the unsafe condition and if the men worked under the unsafe
condition, then they would be obviously working under conditions of unusual
distress.
TRIAL EXAMINER' All I was getting at-did you mean that you required the
men to work under unsafe conditions?
The WITNESS: No, no.
PHILADELPHIA MARINE TRADE ASSOCIATION, ETC. 751
As noted heretofore, Father Convey withdrew his services as port arbitrator shortly
before the Caribe incident.
Turning now to the question of which of the two parties was responsible "for
the failure to submit the dispute over the unloading of the SS Caribe to the contract
grievance procedure."
If the Board considers resolution of this question to be relevant, the Trial
Examiner respectfully submits that the original hearing in this case dealt fully with
all facts relating to the Caribe dispute up to and including the issuance of the arbi-
trator's award on July 22. Apparently of the same view, none of the parties offered
additional testimony on such occurrences at the reopened hearing.
No new evidence being forthcoming, the Trial Examiner reaffirms his findings (1)
through (16) of the Intermediate Report. As noted in those findings, on July 21,
the same day that the ILA sought a court order requiring cessation of the lockout,
PMTA agreed to "submit the safety question to an impartial arbitrator, his decision
to be binding upon both parties."
If the Trial Examiner's opinion is desired by the Board on a matter which he con-
siders no more than tangential to the chief issue of the case it is this: PMTA was
responsible. Secretary Corry's wire to the president of Local 1291, the day after
the longshoremen refused to work under conditions which they considered in good
faith to be unsafe, (the wire being quoted fully in finding (6) of the Intermediate
Report), constituted in effect a nullification of the grievance procedure and thereby
an effective "refusal" to abide by it. It required as a condition-precedent to the
grievance procedure that the men go back to work under conditions they believed
to be unsafe. This action by PMTA not only was contrary to Section 502 of the
Act but also violative of practice during the many years.
Father Comey was port arbitrator. As noted, he emphatically denied that he
had ever required the longshoremen to work under unsafe conditions.'
D. Methods of unloading bagged sugar
The Board's order required evidence and findings upon this subject, in point (4) (b).
A number of witnesses supported the following quotations from the opening state-
ment of Attorney Kelly which, being well expressed and undisputed, are adopted
as findings of fact:
. .. we do not contend that in all instances it is practical or economical to
use pallets. If that was so, there wouldn't be such things as slings, nets, hooks,
and trays. On the other hand, it has been our contention that palletizing,
especially where cargo is going to be placed at rest on the pier or in storage or
transferred to another vessel, that it eliminates a great deal of handling and it is
therefore the economical method of operating.
Now today there is very little raw sugar that comes in bags, but previously,
when raw sugar came in bags and the quantity of that raw sugar would be
staggering compared to all of,the refined sugar that comes into this port-there
isn't any question but that the cargo was discharged with slings because as it was
taken out of the ship it was hooked on monorails which carried it back to the
refinery where the bags were slit open, and there would be no practical purpose
in the use of pallets.
I say that to you because the Board in its order did not differentiate between
refined sugar and raw sugar. We are willing to concede and explain the reason
why no raw sugar that I know of in bags was ever handled in pallets, only
refined sugar.
According to the testimony of John J. Seebroski,2 operating manager of the Jarka
Stevedore Corporation, a member of PMTA-a concern which does a large percent-
1 Although the Trial Examiner believes the foregoing findings satisfy the requirements
of this portion of the order, it may be added that the or,rinal record fully supports the
following quotation from General Counsel's brief: ". . the ILA sought from the outset
to submit this dispute to the grievance procedure of the contract. Thus, when Corry told
Askew on June 30, 1959, that he was going to send a telegram threatening to lock out
the Port, Askew asked him not to send it but to try to work things out in a grievance
committee. This offer was renewed to Wagemaker of Atlantic & Gulf on July 2, 1959.
Delegates Johnson and Smith both asked Toner (A & G manager) for a grievance com-
mittee, both on June 30, 1959, and on July 2, 1959, and such offers were continually
made by the Union during the period of the actual lockout."
9 The name has various other spellings in the record.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
age of the stevedoring work on the Philadelphia waterfront-until March 1960 all
raw sugar which it unloaded for the National Sugar Refining Company was in bags,
and was unloaded with the use of slings. After that date raw sugar arrived in bulk,
and the operation of unloading bulk sugar is of no relevancy here.
The record contains many documents and the testimony of other stevedoring
representatives concerning the use of pallets or slings in the unloading of bagged
sugar. In general, it is found that the use of pallets for the unloading of any cargo
did not begin until early in .the latest World War. It follows that the use of pallets
in unloading bagged sugar could not have antedated that time.
Since then records in evidence, amplified by oral testimony, show that the un-
loading of bagged sugar cargoes was performed both by the use of slings and by
pallets-in at least one case both methods were used on one ship. A review of such
evidence leads to the conclusion, however, that in the greatest number of cases
where pallets were used, the bagged sugar constituted but a small part of the
total cargo discharged at Philadelphia or at later ports.
Referring back to the quoted portions of Attorney Kelly's opening statement,
it appears not unfair to conclude that the practice generally, up to the Caribe,
incident, had been to use slings in unloading sugar. As he said, "when raw sugar
came in bags" "that cargo was discharged with slings," and "the quantity of that
raw sugar would be staggering compared to all of the refined sugar that comes
into this port."
Of genuine significance in the opinion of the Trial Examiner, however, is the
fact that on the single occasion when, before the Caribe incident, an employer at-
tempted to use only pallets, instead of slings, to unload a full cargo of sugar, the
longshoremen protested in precisely the same manner, and for the same safety
reasons, as they did on June 30 with the Caribe. This earlier protest, referred to
above as the "Jarka" incident, occurred shortly after Father Comey withdrew as
the waterfront arbitrator and shortly before the Caribe incident. As noted more
fully hereinafter, the employer promptly resumed the customary method of un-
loading by slings.
E The "abnormally dangerous" questions
In its order the Board raises two questions: (1) whether in fact the unloading
by pallets from the Caribe created "abnormally dangerous conditions for work,"
and (2) whether in fact the longshoremen who refused to unload by pallets acted
in "good faith because of abnormally dangerous conditions for work."
As to point (1), the opposing parties adduced testimony flatly contradictory, the
employer witnesses declaring that the pallet method as used on the Caribe was
not unsafe and the ILA witnesses insisting that it was unsafe. The conclusion voiced
by each witness obviously was merely his own opinion, no matter how experienced
or sincere he may have been.
None of these opinions was grounded upon the individual's own observation of
the actual operation of unloading on June 30, because no unloading took place on
that date No physical "conditions" of any kind were "created" that day, in the
sense that any operation was begun in which "abnormal danger" was an inherent
potential. It was the employer's order to use pallets, instead of slings, which pre-
cipitated the refusal to work on the part of the longshoremen.
Extensive unloading of the Caribe took place after the events in issue, on July 22,
during a period of some 2 or more hours, while the arbitrator observed. The re-
opened record contains a good deal of oral testimony concerning the unloading on
this occasion, and in addition visual evidence in the form of moving picture films
taken during the course of the operations by representatives of two local television
stations. These films, which are not purported to be, singly or together, a complete
revisualization of the entire operation at all four hatches, were run off during one
session of the hearing. Runoff of the films was halted whenever a party desired,
and all witnesses present were permitted to make whatever comment they wished
to on any "still." Thus it is that the Trial Examiner had the unique opportunity
to be a witness, himself, of film recordings of at least part of the unloading process
on July 22. The same opportunity, of course, is available to the Board or the
courts. Since the evidentiary basis for his conclusion is thus reviewable, the Trial
Examiner considers it not improper for him to note here his opinion: the unloading
by pallets of the Caribe on July 22 created "abnormally dangerous conditions for
work." Although the films revealed no bags actually falling, either from pallets
or slings, testimony is in agreement that while bags did fall off pallets-at one hatch
an entire pallet load-none fell from the slings. The reason appears obvious from
the pictorial evidence. A pallet is merely a wooden platform, 4 by 6 feet. A metal
PHILADELPHIA MARINE TRADE ASSOCIATION, ETC. 753
bar or "spreader" fits just under each narrower end of the pallet. To these bars,
and one at each corner of the pallet, are attached wire or rope "bridles " These
four "bridles" run upward, above whatever is loaded upon the pallet, meeting at a
central point and by rings may be attached to the "hook," which is lowered by a
line running to a hoisting winch.
Four tiers of six bags each are "stowed" upon the pallet. From the films it is
visually clear that only gravity prevents bags from slipping and falling off-except
for the wires angling upward from each of the four corners.
The slings used, of canvas, wrap completely around the load being lifted, bottom
and ends, and in the lifting each bag is bound tightly against its neighbor, in effect
creating a cohesive whole.
Both cloth bags and paper bags contained the sugar. Whether or not such bags
are inherently slippery, as an ILA witness present testified, it is obvious that either
cloth or paper becomes slippery when sugar escapes from a damaged bag.
Each load lifted is subject to the possibility of colliding with the coaming around
the hatch, or of lurching caused by the winchman or failure of power. Collision or
lurching may-and on July 22 did-result in bags failing frohl pallets, but not from
slings. And at No. 4 hatch, it is undisputed, after a tow motor lost traction, per-
mitting an entire pallet load to slip back into the hold, the arbitrator ordered that
only slings be used.
The individuals chiefly imperiled by falling bags were the longshoremen in the
hold, directly under the load being hoisted. And until enough of the cargo was
unloaded to permit withdrawing into the protection of the wings under the hatch,
there appears to have been nothing but a longshoreman's own agility to save him from
a falling bag. A falling bag of sugar of 100 pounds, whether such abrupt descent is
4 feet or 40 feet, would seem to present imminent danger to anyone below.
In summary as to point (1), the Trial Examiner concludes and finds that the
unloading of bagged sugar from the Caribe on July 22 created "abnormally dangerous
conditions of work," within the meaning of Section 502 of the Act.
As to point (2)-the "good faith" of the longshoremen in refusing to unload the
Caribe by pallets on June 30. First, it is observed by the Trial Examiner that ap-
pended to the Board's query on this point is a footnote stating that "unsafe conditions"
may or may not be equivalent to "abnormally dangerous conditions." He has no
desire to join in a game of semantics, in which the idea at issue may well become lost
in the fog of syllables. He regrets that he did not use the exact language of the Act
in making his finding of "unsafe conditions," as he now has above. Perhaps the
reopened hearing would have been unnecessary had Judge Winnet, in his award,
used the statutory language instead of finding merely that the use of pallets was "not
a safe operation." All parties at the hearing, and Webster's New International Dic-
tionary, seem to recognize the precedence of substance over form. According to the
latter "unsafe" in a synonym for "dangerous." Senate Report 105 on S. 1126 uses
another synonym-"hazardous." Whatever the word used, the weight of a 100-pound
bag of sugar falling upon a man underneath remains the same And it is doubtful
if any of the longshoremen who declined to use pallets on June 30 consciously based
their decision upon any selection of descriptive terms, but upon inarticulate concept
prompted by fear of getting hit by a falling bag of sugar.
No new evidence was offered at this hearing as to the "good faith" of the long-
shoremen on the morning of June 30, and the Trial Examiner is not persuaded to
alter his original conclusion. While the Respondents did offer much evidence, as
heretofore noted, showing that on previous and later occasions some bagged sugar,
chiefly in small amounts and part cargo, was unloaded by pallet, these facts bear
only remotely if at all, in the opinion of the Trial Examiner, upon the state of mind
of the longshoremen reporting for work at the pier on June 30. It is not shown that
the same individuals were involved.
And the Trial Examiner has respect for the previously quoted remark of Father
Comey, concerning the unloading of hurricane-damaged cargo from a ship at Wil-
mington and at Philadelphia. The Philadelphia employers protested, in effect, that
because longshoremen had unloaded some of the cargo at Wilmington, without pro-
test, there could be no merit to the claim of safety--or "unusual distress"-at Phila-
delphia. "What had happened at Wilmington," said Father Comey, "had no bearing
on the situation (in Philadelphia) at all "
As he in effect demonstrated, the nature of a risk is not altered by the fact that one
group takes it and another declines. It appears to be equally reasonable to assume
that the "good faith" of one group declining to take the risk is not diminished by
the fact that some other group, on some other occasion, under other conditions
perhaps, has been willing to run a similar risk.
As noted above, one fact was developed at the reopened hearing, however, which
establishes that shortly before the Caribe incident longshoremen refused to unload
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with pallets a cargo of bagged sugar for another stevedoring company. Upon a
protest made by ILA officials to Captain Drury, the superintendent, that the men
declined to work the pallets because they were unsafe, Drury promptly ordered that
slings be used and pallets abandoned.
Thus it is clear that the position taken by the longshoremen on the morning of
June 30 had recent precedent.
"Good faith," of course, is subjective. Its presence or absence in a man's mind,
long after the event, cannot be proven as might the execution of a document at a
stated time and place. Inference is the lone avenue to determination of the
question.
The Trial Examiner believes that the longshoremen declined to work the Caribe
on the morning of June 20 because they feared injury if they had to use pallets, and
that their refusal was "in good faith" because of this fear. Within the month the
same or other longshoremen had urged precisely the same claim of lack of safety,
and the employer had promptly changed to slings without raising any grievance issue.
During the long service of Father Comey as arbitrator, according to his own testimony,
the longshoremen were°not required to work under "unsafe" or "distressed" condi-
tions. Other evidence in this record establishes the presumption that ILA officials
were aware, even if some individual members on the morning of June 30 were not,
that in settling a dispute in 1954 the PMTA, in writing, agreed that longshoremen
would not be required to work under conditions of "imminent danger." And while
at the reopened hearing counsel for the Respondents chided the Trial Examiner
for quoting him out of context in the Intermediate Report, he did not retract his
recorded statement:
I would agree that the men on the SS Caribe, the longshoremen, had a bona
fide belief of an unsafe condition.
Upon all the evidence as to the surrounding circumstances, and upon an inference
drawn from such evidence and his own belief as explained above, the Trial Examiner
formally concludes and finds that in refusing to unload the Caribe on the morning
of June 30 the longshoremen acted in good faith because of abnormally dangerous
conditions of work.
Conclusions
Upon consideration of the comprehensive briefs filed by each party, upon the
foregoing findings and conclusions, and upon the entire record in the case as
made both at the original and reopened hearings, the Trial Examiner reaffirms his
original "Conclusions of Law."
RECOMMENDATIONS
Upon such findings and conclusions of law the Trial Examiner reaffirms his earlier
recommendations as to a remedial order, with one modification. In the event that
the Board adopts the Trial Examiner's conclusions and recommendations, it is sug-
gested, in view of the obvious complications that would arise at a backpay hearing,3
that the Board permit the ILA and PMTA to arrive at an appropriate backpay amount
and method of distribution through their own arbitration procedure, set up by
their current contract.4
8 Presumably several thousand men, in one category or another, were deprived of work
by the lockout for the 3-week period.
4In full sincerity, moreover, the Trial Examiner adds this suggestion to both ILA and
PMTA. It is made as a result of his observation, gained during the many sessions held
in Philadelphia, both in 1960 and 1961, that probably in no other port of the United
States is there a healthier relationship between the longshoremen and the employers'
association than that which exists in the port of Philadelphia Because of his confidence
in the integrity of Counsels Kelly and Freedman, of Secretary Corry and President Askew
of Local 1291, the Trial Examiner dares express this suggestion and hope: that in the
interest of continued peace on the-Philadelphia waterfront, they work out and submit to
the Board, before the latter issues any formal order, a mutually acceptable settlement.
It would appear not unlikely that President Askew could, through his local, obtain waivers
from ILA members as to actual amounts due them under any backpay order, and that the
entire backpay issue could be disposed of by the setting up of a reasonable fund, by
PMTA, to be used for the benefit and welfare of all concerned on that waterfront. Since
PMTA agreed, some years ago, not to require longshoremen to work under conditions of
"imminent danger," the problem of a suitable "cease and desist" notification to long-
shoremen need not be insurmountable. The good offices of Regional Director Schauftler
would be made available, the Trial Examiner believes, in the drafting of such notice, as
well as in the working out of the suggested settlement.