Pinkerton's National Detective Agency, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1950

90 N.L.R.B. 205 (N.L.R.B. 1950)

In the Matter Of PINIIE 'RTON'S NATIONAL DETECTIVE AGENCY, INC. and
THOMAS W. STENHOUSE, JOHN T. CONNERS, WALTER J. SLATER, AND
CHARLES 0..HOL,IIES, INDIVIDUALS
In the Matter of CONTRACT GUARD'S AND PATROLMEN'S ORGANIZING
COMMITTEE, I. L. W. U. AND INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION, CIO and JOAN T. CONNERS, CHARLES O.
HOLMES, AND WALTER J. SLATER, INDIVIDUALS
Cases Yes. 20-CA-120 and 20-CB-33.-Decided June 9, 1950
DECISION AND ORDER
On May 18, 1949, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding, that the Re-
spondents, Pinkerton's National Detective Agency, Inc., referred to
herein as Pinkerton's, and Contract Guard's and Patrolmen's Or-
ganizing Committee, I. L. W. U., referred to herein as Organizing
Committee, had engaged in and were engaging in certain unfair labor
practices, and recommending. that they cease and desist therefrom, arid
take certain affirmative action. In his Intermediate Report the Trial
Examiner also found that Respondent, International Longshoremen's
and Warehousemen's Union, C. I. 0., had not engaged in certain un-
fair labor practices, and recommended that the complaint with re-
spect to it be dismissed. A copy of the Intermediate Report is at-
tached hereto.' Thereafter, Respondents Pinkerton's and Organiz-
ing Committee filed exceptions to the Intermediate Report and sup-
porting briefs. The Respondents' request for oral argument is hereby
denied because the record, the exceptions and briefs, in our opinion,
adequately present the issues and the positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs filed by the Respondents, and the
entire record in the case and hereby adopts the Trial Examiner's find-
ings of fact, except as corrected and amplified in this opinion, and his
' Pursuant to Section 203.33 ( b) of the National Labor Relations Board Rules and Regu-
lations, Series 5 as amended , these cases were consolidated by order of the Regional
Director for the Twentieth Region ( San Francisco , California) on November 30, ]94S.
90 NLRB No. 39.
205
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusions and recommendations not inconsistent with our conclu-
sions and order, hereinafter set forth.2
1. The Trial Examiner found that the Organizing Committee
induced Pinkerton's discriminatorily to refuse employment to Thomas
W. Stenhouse on and after July 23, 1948, because he failed and
refused to maintain membership in good standing in the Organizing
Committee. Stenhouse was first discharged by Pinkerton's in March
1948, for failure to maintain membership in the Organizing Commit-
tee, under the union-security agreement between Pinkerton's and the
Organizing Committee which was then valid. Camden, the manager
of Pinkerton's San Francisco office, offered Stenhouse reemployment
in July 1948, but never actually assigned him to work although he was
given a few days' pay. There is no evidence in the record that the
Organizing Committee ever knew of Camden's offer to reemploy
Stenhouse, nor that it induced Camden specifically to refuse Sten-
house any work assignments. The complaint does not allege that the
Organizing Committee was responsible for Stenhouse's discharge in
July, at which time the union-security agreement was invalid, and
we are not warranted in going beyond the complaint to find, on the
record as it exists, that the Organizing Committee violated Section
8 (b) (2) by inducing Pinkerton's to discharge Stenhouse. We do,
however, adopt the Trial Examiner's conclusion that Pinkerton's
refused employment to Stenhouse after July 23, 1948, because of his
failure to maintain good standing in the Organizing Committee.
2. We are in accord with the Trial Examiner that Conners and
Slater were laid off on August 7, 1948, because each of them was
delinquent in his dues to the Organizing Committee. We do not
however agree that Conners and Slater were justified in refusing to
accept the waterfront assignments offered them for the night of
August 11. The record does not disclose why Conners and Slater both
requested that they be permitted to carry guns on this particular
assignment, although they had previously worked on the docks at
night unarmed. If they were fearful of what they described as
"existing conditions," presumably referring to their lack of good
standing in the Union, they failed to make it clear that they considered
themselves threatened with physical violence by anyone connected
with the Union. We regard Camden's offer to relieve them of their
assignments as ati recognition on his part that they were unwilling to
accept the jobs, and that Pinkerton's would therefore have to arrange
for other guards to replace them.
2 Because no exceptions were taken to the Trial Examiner's findings that Respondent
International Longshoremen's and Warehousemen's Union, C. I. 0. was not responsible
for the unfair labor practices' committeed by the Organizing Committee, and had not
itself violated the Act by participating in those unfair labor practices, we shall accept
his findings . In so doing , however, we do not pass on their correctness.
PINKERTON'S, NATIONAL DETECTIVE AGENCY, INC. 207
We are not convinced that either Pinkerton's or the Organizing
Committee discriminated against Conners or Slater during the period
between August 11 and September 16, 1948. We do not rely, however,
in reaching this conclusion, on the conversation of August 9 or 10,
between Camden and Johnson, business representative of the Organiz-
ing Committee, wherein Johnson told Camden "to send them back to,
work ," referring to the guards who had been dismissed for nonpay-
ment of dues. Neither party to this conversation advised the dis-
charged guards that the policy of the Respondents was henceforward
to be one of nondiscrimination. On the contrary, Camden, when he
later spoke to Conners and Slater, rather than allaying their fears, as
lie might have done by reporting a change in Johnson's attitude,,
encouraged them in their refusals of the assignments for August 11,.
by agreeing that "existing conditions" were bad. But even this unex--
plained lack of frankness on Camden's part does not excuse Conners:
and Slater in turning down the offer of an assib Iment. We may not
conjecture on whether or not Pinkerton's would have given them
further waterfront assignments if they had accepted this first assign-
ment following their dismissal. Their refusal, without adequate
cause, of this assignment relieved Pinkerton's, for a time, of its obliga-
tion to continue to offer them assignments.
Pinkerton's again offered Conners and Slater waterfront assign-
ments for September 16, 1948, but conditioned the offers on their
obtaining clearances from Johnson of the Organizing Committee,
The clearances were needed to pass them through the picket lines
established by the International Longshoremen's and Warehousemen,-,
Union and other maritime unions then engaged in the general water-
front strike in the San Francisco Bay area, which lasted from Sep-
tember 2 into December 1948. It is clear from Johnson's behavior
when Conners and Slater went to see him, and from his phone con-
versation the next day with a Pinkerton's supervisor, that Johnson
was determined not to grant clearances to anyone who was not in
good standing with the Organizing Committee, despite the fact that
the, Organizing Committee was not itself on strike. Whether this,
was a policy of Johnson in his capacity as a representative of the
Organizing Committee, or as a representative pro ten of the joint
strike committee, which had been set up by the striking unions, one
of which was the Organizing Committee's parent body, the ILWU,
is beside the point. The fact remains that Pinkerton's accepted the
dictation of an outside party as to who could work for it on the
waterfront, and the conditions under which they would be permitted
to work. The imposition on Conners and Slater of the condition that
they obtain a clearance from Johnson before they could be allowed
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work was illegal. Pinkerton's discriminatory treatment of Conners
And Slater did not end merely because it took the action it did from
fear of the consequences that might result if it opposed the demand
of the Organizing Committee to enforce its illegal union-security
.agreement. We find that Pinkerton's offer to Conners and Slater
.of waterfront assignments for September 16, if they could get clear-
ances from Johnson, discriminated against them in a manner pro-
scribed by Section 8 (a) (3), and that by Johnson's imposition of
the requirement that dues be paid up before Conners and Slater could
obtain clearances, the Organizing Committee violated Section
8 (b) (2).
On October 4, 1948, Pinkerton's captain of the guards called Slater
to offer him a job at a construction project which was scheduled to
last from 6 months to a year, and would pay him a higher hourly
rate than he had been receiving as a waterfront guard. Slater said
he was working elsewhere, and would not accept the assignment.
We find that this constituted refusal of an assignment which was
.at least the equivalent of those Slater had been receiving before
August 1948. By turning it clown, Slater indicated his intention to
sever all his remaining connections with Pinkerton's. We shall not
.order Pinkerton's to offer reinstatement as a waterfront guard to
Slater, nor require Pinkerton's or the Organizing Committee to make
him whole for any loss of pay he may have suffered after October 4,
1948.
3. The Trial Examiner found that the Organizing Committee in-
,duced Pinkerton's discriminatorily to refuse waterfront assignments
to Holmes on and after August 7, 1948, except on a few occasions
between August 7 and August 28, and that Pinkerton's had construe-
itively discharged him on November 15, because he had failed and
xefused to maintain membership in good standing in the Organizing
.Committee. We agree. In addition to the reasons stated by the Trial
Examiner for his findings we also rely on the following facts to
,establish that the discrimination against Holmes did not cease when
Johnson of the Organizing Committee told Camden on August 9 or
10 to send the nondues-paying employees back to work :
(a) Under the Pacific Coast Working and Dispatching Rules which
were incorporated into the Pinkerton's contract, Holmes was entitled
as a matter of right to be reassigned to steady work on the S. S. Mannine
I,ynx.3 But despite a shortage of guards, which we infer from the
fact that Pinkerton's called Holmes back to work twice during his
;vacation, and despite Holmes' favorable position on the seniority
, The rules provided that a guard dispatched to a ship when it first came into port was
.entjtled to remain working there until the ship was moved.
PINKERTON'S; NATIONAL DETECTIVE AGENCY, INC. 209
register, he was neither given his regular assignment on the S. S.
Marine Lynx, nor did Pinkerton's advise him that its discriminatory
action had ceased, and that he would be given waterfront assignments
as frequently as in the.past.
(b) The seniority list jointly prepared by the Organizing Com-
mittee and Pinkerton's after the August strike of the Organizing
Committee, is dated November 30, 1948, which was during the San
Francisco general waterfront strike. It lists the names of 12 water-
front guards hired after September 2, 1948, the date the general
waterfront strike began, and during a time when, Pinkerton's contends,
employment opportunities for its waterfront guards had beelb sharply
reduced. The hiring of new guards during this period was incon-
sistent with Pinkerton's contention that Holmes received no water-
front assignments after August 28 because there was no work available
for him.
(c) Finally we rely, as an additional reason for our finding, on
the statement made to Holmes"by a Pinkerton•dispatcher'a month
after he left Pinkerton's employ that he could have his waterfront
job with Pinkerton's if he would "square" himself with the Union.
The Respondent contends that Holmes was not constructively dis-
charged on August 7, because he accepted 4 waterfront assignments
after that date and then voluntarily quit on November 15. How-
ever, we regard Pinkerton's action on August 7, in removing Holmes
from his regular assigiuruent on the S. S. Marine Lynx and its
stated reason for that action, as a notice, which cannot be disre-
garded, that Pinkerton's considered Holmes normal employment
relationship with it to have been terminated. Pinkerton's offer, and
Holmes' acceptance, of further waterfront and industrial assignments
did not restore Holmes to the status quo, to the position on the seniority
register he had, occupied. By accepting every assignment he was
offered, Holmes, as distinguished from Conners and Slater, indicated
that he wanted to resume his former status as a waterfront guard,
without qualifications or conditions, and with the same expectation
of continued regular employment that he had formerly enjoyed.
Pinkerton's contention that Holmes received no waterfront assign-
ments after the general waterfront strike began because there was no
work available, is not persuasive. Pinkerton admits that even during.
the strike its detail of waterfront guards averaged 55 daily: Holmes
was No. 56 on the seniority register in effect at that time. Despite
the fact that there must have been some clays when Pinkerton's hired
more than 55 guards for waterfront duty, and that all the first 55 men
on the register could not have worked every day during the strike,
903S47-51-vol. 90-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holmes was never called. Furthermore, Pinkerton's found it neces-
sary to hire 12 new guards during the strike, for waterfront assign-
ments. Nor do we regard Holmes' decision on November 15 to sever
all association with Pinkerton's as negating the validity of our con-
clusion that he had been constructively discharged. When he turned
in his equipment on November 15, Holmes finally accepted the situ-
ation as it had existed from August 7, that he could not expect restora-
tion to his former position unless he became a member in good standing
of the Organizing Committee.
4. The Trial Examiner found that the Organizing Committee vio-
lated Section 8 (b) (1) (A) by causing Pinkerton's to discriminate
against Stenhouse,4 Conners, Slater, and Holmes, and by threatening
Pinkerton employees, after June 15, 1948, with loss of their jobs if
they failed to maintain membership in the Organizing Committee.
Section 8 (b) (1) (A) provides:
It shall be an unfair labor practice for a labor organization
or its agents (1) to restrain or coerce (a) employees in the exercise
of the rights guaranteed in section 7....6
We find that the following actions of the Organizing Committee
or its agents constitute specific violations of Section 8 (b) (1) (A) :
(a) Johnson's letter of July 7. The pertinent paragraphs of this
letter, which was sent to all Pinkerton guards, are as follows :
To all Pinkerton Guards :
In order to dispel some of the confusion among the member-
ship, I am writing each member regarding the following.
1. The coastwide agreement between the ILWU-CIO and the
Pilikerton agency has been extended until June 15,1949, by mutual
agreement between the Company and the Union, and all of its
terms and conditions are in effect and full force until that date.
Anyone who tells you any different is just a plain liar and is only
doing so to break clown your union-the Union that raised your
wages $4 a day in 2 years.
3. The membership voted unanimously that the fines for being
delinquent in dues be enforced. Starting July 9, these fines will
be -in effect and delinquents will be dealt with according to the
agreement.
' See Paragraph 1, supra.
' Section 7 provides in part :
Employees shall have the right to form, join or assist labor organizations . . . and
shall also have the right to refrain, from any or all of such activities except to the
extent that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in section 8 (a) (3).
PINKERTON'S: NATIONAL DETECTIVE AGENCY, INC. 211
We
5. It has come to the attention of the officers and the Executive
Board that some members have been misled into signing cards
with the phony independent union and also were misled by Sgt.
Fox who was playing along with said renegade union and who
was fired' by Pinkerton for doing so. These members should
straighten up and fly right and help build this union, otherwise
they will be cited before the Executive Board.
are satisfied that the letter was calculated to coerce the Pinker-
ton guards to retain their membership in the Organizing Committee
because it contains an express threat of reprisal for failure to pay
union dues.
(b) Nonpayment of union dues. Slater testified without contra-
diction that some time between July 20 and 25, Johnson telephoned
him and said, "Unless you get over here and pay some dues, you are
not going to work." "I'll give you to Thursday to get over here and
pay them dues, or you don't work." A threat to an employee that he
will not work if he does not join a union or pay union dues, absent
an authorized union-security agreement, is coercive, and we have uni-
formly so held .6
(c) The strike of the Organizing Committee against Pinkerton's.
The strike which lasted for 2 or 3 days, early in August, was primarily
to compel Conners, Slater, Holmes, and other employees who were
not members in good standing in the Organizing Committee, to forego
the rights which Section 7 protects. Its purpose is evidenced by the
"Return to Work Agreement" executed at its conclusion, and by the
fact that Pinkerton's dispatchers told Conners, Slater, and Holmes,
that they could no longer work because their names appeared on
Johnson's list of delinquent union members which had been prepared
in accordance with the "Return to Work Agreement." The threat
by a union to strike an Employer's plant, and thereby force him to
discharge an employee in accordance with an illegal union-security
provision of a contract, has recently been held to be directed primarily
to compel other employees to forego the right guaranteed to them
by Section 7 of refusing to join a union.' If a threat to strike for
that purpose is a violation of Section 8 (b) (1) (A), it is clear that
an actual strike for the same objective is also a violation of that
section.
We conclude, therefore, that by sending the July 7 letter to the
Pinkerton guards, by Johnson's threat to Slater in July, and by strik-
ing to compel Pinkerton's to discharge Conners, Slater, and Holmes,
'Smith Cabinet Manufacturing Co., Inc., 81 NLRB 886; Seamprufe Incorporated, 82
NLRB 892.
'Clara-Val Packing, Company, 87 NLRB 703. (Member #teynolds dissented, but con-
siders himself bound by the decision therein.)
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Organizing Committee coerced the Pinkerton waterfront guards
in the exercise of their rights guaranteed under Section 7, and thereby
violated Section 8 (b) (1) (A) of the amended Act.
5. Respondent Pinkerton argues that where a violation of Section
8 (b) (2) has been established, restitution of back pay by the Employer
is not a necessary consequence of an order for reinstatement, because,
although an order for reinstatement can be directed only against the
Employer, the Act makes the party responsible for the discrimination
liable for back pay. . Pinkerton's further argues that both the Em-
ployer and the Union may be subject to an order to cease and desist
discrimination, but that, if the Union has caused the Employer to.
discriminate, it is equivalent to saying that it was the Union which
was responsible for the discrimination. Respondent Organizing Com-
mittee argues that if any back pay award is proper at all., it should
be only for the 2 or 3 days immediately following the strike of the
Organizing Committee against Pinkerton, and should cease as of the
date Johnson told Camden to send the delinquent union members
back to work.
We do not believe that either Respondent ceased. discriminating
against Conners, Slater, and Holmes as a result of Johnson's statement
to Camden that the Organizing Committee had no objection to their
going back to work. Although we have found that Conners and
Slater unjustifiably refused an offer of a single night's work on Au-
gust 10, we rely for our conclusion on the facts that neither Respond-
ent advised these three guards of its alleged change of position as to
their right to future employment; on the Respondents' failure to
abrogate the illegal preferential employment clause in the "Return
to Work Agreement";" on the illegal union-security clause of the
contract; and, finally on the Respondents ' joint failure to restore these
three guards to their positions on the seniority register.
The failure of either Respondent unmistakably to declare to the
discriminatees, in action or statement, that its discriminatory treat-
lnent would cease, is sufficient reason for our order to both respondents
to assume a joint and several liability for the loss of pay incurred by
Conners, Slater, and Holmes.°
The Remedy
Having found that the Respondents engaged in unfair labor prac-
tices, we shall order them to cease and desist therefrom, and take
8 A preferential hiring clause of this sort goes beyond the type of union-security provision
which may be validated under the Act by a union -authorization election . Morely Manu-'
factoring Company, 83 NLRB 404 ; Hawley & Hoops , Inc., 83 NLRB 371.
B H. Milton Newman , 85 NLRB 725 ; Clara-Val Packing Company, 87 NLRB 703; Union
Starch & Refining Company, 87 NLRB 779.
PINKERTON'S NATIONAL DETECTIVE AGENCY, INC. 213
certain affirmative action designed to effectuate the policies of the
Act.
We shall order Pinkerton 's to offer Stenhouse, Conners , and Holmes
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and to make Thomas W. Stenhouse whole for
the loss of pay suffered by reason of its discrimination against him.
As we have found that both Pinkerton's and the Organizing Com-
mittee are responsible for the discrimination suffered by Conners,
Slater, and Holmes, we shall order the Respondents jointly and
severally to make these employees whole for the loss of pay they may
have suffered.by reason of the discrimination against them, by pay-
ment to each of a sum of money equal to the amount that he normally
would have.earned as wages during the periods specified in Section
3 of our Order, and ending with the date of the offer of reinstatement
or, as to Slater, to October 4, 1948, less their net earnings during such
periods. It would, however, be inequitable to the Organizing Com-
mittee to permit the amount of its liability for back pay to increase
despite the possibility of its willingness to cease its past discrimina-
tion, in the event that Pinkerton's should fail promptly to offer
reinstatement to those entitled to it under our Order. We shall
therefore provide that the Organizing Committee may terminate its
liability for further accrual of back pay to Conners and Holmes, or
either of them, by notifying Pinkerton's in writing that it has no
objection to their reinstatment. The Organizing Committee shall not
thereafter be liable for any back pay accruing after '5 days from the
giving of such notice. Absent such notification, the Organizing Com-
mittee shall remain jointly and severally liable with Pinkerton's for
all back pay to Conners and Holmes that may accrue until . Pinkerton's
complies with our order to offer them reinstatement.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
1. The Respondent, Pinkerton's National Detective Agency, Inc.,
San Francisco , California ; its officers , agents, successors , and assigns
shall :
a. Cease and desist from :
(1) Encouraging membership in Contract Guards and Patrolmen's
Organizing Committee, ILWU, or in any other labor organization
of its employees , by discharging any of its employees or discriminat-
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of their employment;
(2) In any other manner interfering with, restraining, or coercing
its employees in the right to refrain from exercising the rights guar-
anteed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized by Section
8 (a) (3) of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(1) Offer to Thomas W. Stenhouse, John T. Conners, and Charles
0. Holmes immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority or
other rights and privileges'
(2) Make whole Thomas W. Stenhouse for any loss of pay he may
have suffered by reason of its discrimination against him, be payment
to him of a sum of money equal to the amount he normally would
have earned as wages from July 28, 1949, to the date of its offer of
reinstatement, less his net earnings during said period;
(3) Post at its offices in the San Francisco, California, Bay area,
copies of the notice attached hereto as Appendix A.10 Copies of
said notice, to be furnished by the Regional Director for the Twen-
tieth Region, shall, after being duly signed by the Respondent Com-
pany's representative, be posted by it immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to
waterfront guards are customarily posted. Reasonable steps shall be
taken by the Respondent Company to insure that such notices are
not altered, defaced, or covered by any other material;
(4) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) days from the date of this Decision and
Order, what steps it has taken to comply herewith.
2. The Respondent, Contract Guards and Patrolmen's Organizing
Committee, ILWWWU, its officers, representatives and agents, or the offi-
cers, representatives, and agents of its successors, shall :
a. Cease and desist from :
(1) Requiring, instructing, or inducing Pinkerton's National De-
tective Agency, Inc., its agents, successors, or assigns, to lay off
employees because they are not members in good standing in Contract
Guards and Patrolmen's Organizing Committee, ILAVU, or its suc-
cessors, except in accordance with Section 8 (a) (3) of the Act;
'° In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words : "A Decision and Order" the words : "A Decree of
the United States Court of Appeals enforcing."
PINKi RTON'S, NATIONAL DETECTIVE AGENCY, INC'. 215
(2) Directing, instigating, or encouraging employees to engage in
a strike, or approving or ratifying strike action taken by employees
for the purpose of requiring, except in accordance with Section 8
(a) (3) of the Act, that Pinkerton's National Detective Agency,
Inc., its agents, successors, or assigns, lay off or otherwise discrim-
inate against employees, or applicants for employment, because they
are not members in good standing of Contract Guards and Patrol-
men's Organizing Committee, ILWU, or its successors;
(3) In any other manner causing or attempting to cause Pinker-
ton's National Detective Agency, Inc., or its agents, successors, or
assigns, to discriminate against its employees in violation of Section
8 (a) (3) of the Act;
(4) Restraining or coercing employees of Pinkerton's National
Detective Agency, Inc., its successors or assigns, in the exercise of
their right to refrain from any or all of the concerted activities guar-
anteed by Section 7 of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Post in conspicuous places in its business offices in the San
Francisco, California, Bay area, where notices to members are cus-
tomarily posted, copies of the notice attached hereto as Appendix
B 11 Copies of said notice, to be furnished by the Regional Director
for the Twentieth Region, shall, after being duly signed by official
representatives of Contract Guards and Patrolmen's Organizing Com-
mittee, ILAVU, or its successors, be posted by it immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken
by the Respondent Union to insure that such notices are not altered,
defaced, or covered by any other material;
(2) Mail to the Regional Director for the Twentieth Region signed
copies of the notice attached hereto as Appendix B, for posting, the
employer willing, in the offices of Pinkerton's National Detective
Agency, Inc., in the San Francisco Bay area, in places where notices
to employees are customarily posted. Copies of said notice to be
furnished by the Regional Director for the Twentieth Region, shall,
after being signed as provided in paragraph 2 (b) (1) of this Order,
be forthwith returned to the Regional Director for said posting;
(3) Notify the Regional Director for the Twentieth Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply therewith.
11 In the event this Order is enforced by a decree of the United States Court of Appeals,
there shall be inserted before the words : "A Decision and Order," the words: "A Decree of
the United States Court of Appeals enforcing."
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Pinkerton's National Detective Agency, Inc., its officers, agents,
successors, and assigns, and Contract Guards and Patrolmen's
Organizing Committee, ILWU, its officers, representatives, and agents,
or its successors, and the officers, representatives, and agents. of its
successors shall, jointly and severally, make whole John T. Conners,
Walter J. Slater, and Charles O. Holmes for any loss of pay they may
have suffered because of the discrimination against them, by payment
to each of them individually of a sum of money equal to the amount
they normally would have earned as wages for the period beginning
August 7, 1948, the date each was discriminatorily laid off :
Conners-to August 10, 1948; and from September 16, 1948, to the
date of Respondent Pinkerton's offer of reinstatement, less his net
earnings during said period;.
Slater 'to August 10,. 1948; and from September 16 to October 4,
1948, less his net earnings during said period:
Holmes-to the date of Respondent Pinkerton's offer of reinstate-
ment, less his net earnings during said period.
The liability of the Organizing Committee for any additional pay-
ments to Conners and Holmes that may arise because of Pinkerton's
failure to offer them reinstatement after the date of this Order, may
be tolled by the Organizing Committee notifying Pinkerton's in
writing that it has no objection to the reinstatement of Conners and
Holmes, as set forth in the section entitled "The Remedy" herein.
MEMBER STYLES took no part in the consideration of the above
Decision and 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, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in CONTRACT GUARDS AND
PATROLMEN'S ORGANIZING COMMITTEE, ILWU, or its successors,
or in any other labor organization of our employees, by discrim-
inatorily discharging any of our employees or discriminating in
any other manner in regard to their hire or tenure of employment,
or any terms or conditions of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the right to refrain from any or all of
the concerted activities guaranteed them by Section 7 of the Act,
except to the extent that such right may be affected by an agree-
PINKERTON'S NATIONAL DETECTIVE AGENCY, IN'. 217
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER to Thomas W. Stenhouse, John T. Conners, and
Charles O. Holmes immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to
any seniority or other rights and privileges previously enjoyed.
WE WILL MAKE Thomas W. Stenhouse, John T. Conners, Walter
J. Slater, and Charles O. Holmes whole for any loss of pay
suffered as a result of the discrimination against them.
All our employees are free to become, remain, or to refrain from
becoming or remaining , members in good standing of the above-named
union or any other labor organization except to the extent that this
right may be affected by an agreement in conformity with Section
8 (a) (3) of the amended Act.
PINKERTON'S NATIONAL DETECTIVE AGENCY., INC.,
Employer.
By --------------------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
APPENDIX B
NOTICE TO ALL MEMBERS OF CONTRACT GUARDS AND PATROLMEN'S OR-
GANIZING COMMITTEE , ILWU OR ITS SUCCESSORS, AND TO ALL EM-
PLOYEES OF PINKERTON'S NATIONAL DETECTIVE 'AGENCY, INC.
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 herebynotify you that:
WE WILL NOT require, instruct, or induce PINKERTON'S NATIONAL
DETECTIVE AGENCY, INC., to lay off employees because they are not
members in good standing in CONTRACT GUARDS AND PATROLMEN'S
ORGANIZING COMMITTEE , ILWU, or its successors, except in ac-
cordance with Section 8 (a) (3) of the Act.
WE WILL NOT direct, instigate, or encourage employees to en-
gage in a strike, or approve or ratify strike action taken by em-
ployees for the purpose of requiring , except in accordance with
Section 8 ( a) (3) of the Act , that PINKERTON 'S NATIONAL DETEC-
TIVE AGENCY , INC., its agents , successors , or assigns , lay off or
otherwise discriminate against employees or applicants for em-
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment because they are not members in good standing of CON-
TRACT GUARDS AND PATROLMEN'S ORGANIZING COMMITTEE, ILWU,
or its successors. .
AVE WILL NOT in any other manner cause or attempt to cause
PINKERTON'S NATIONAL DETECTIVE AGENCY, INC., its agents, suc-
cessors, or assigns, to discriminate against its employees in viola-
tion of Section 8 (a) (3) of the Act.
AVE WILL NOT restrain or coerce employees of PINKERTON7S
NATIONAL DETECTIVE AGENCY, INC., its agents, successors, or as-
signs, in the exercise of the right to refrain from any or all of the
concerted activities guaranteed to them by Section 7 of the Act.
WE WILL MAKE John T. Conners, Walter J. Slater, and Charles
0. Holmes; whole for any loss of pay each may have suffered
because of the discrimination against him.
CONTRACT GUARDS AND PATROLMEN'S ORGANIZING
COMMITTEE, ILWU
By --------------------------------------------
(Representative ) ( Title)
Dated ---------------------- ----
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other ma-
terial.
INTERMEDIATE REPORT
Robert V. Magor, Esq., for the General Counsel.
Gladstein, Andersen, Resner and Sawyer, by Norman Leonard, Esq., for the
Contract Guards and International.
Roth and Bahrs, by George 0. Bahrs, Esq., for Pinkerton's.
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Thomas W. Stenhouse, John
T. Conners, and Walter J. Slater against Pinkerton's National Detective Agency,
Inc., herein called Pinkerton's, (being Case No. 20-CA-120), and by John T.
Conners and Walter J. Slater against the Contract Guard's and Patrolmen's Or-
ganizing Committee, herein called the Organizing Committee, and International
Longshoremen's and Warehousemen's Union, affiliated with the Congress of In-
dustrial Organizations, herein called International, (being Case No. 20-CB-33),
the General Counsel of the National Labor Relations Board, herein, respectively,
called the General Counsel and the Board, by the Regional Director for the Twen-
tieth Region (San Francisco, California), issued his complaint on November
30, 1948,1 alleging that Pinkerton's had engaged in, and is engaging in, unfair
labor practices affecting commerce, within the meaning of Section 8 (a) (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat 136, herein called the Act, and that the Organizing Committee and the
' On the same day, the said Regional Director , pursuant to Section 203.33 ( b) of the
Board 's Rules and Regulations-Series 5 , issued an order consolidating the above -numbered
cases.
PINKERTON'S NATIONAL DETECTIVE AGENCY, INC. 219
International had engaged in, and are engaging in, unfair labor practices affecting
commerce, within the meaning of Section 8 (b) (1) (A), (b) (2), and Section
2 (6) and (7) of the Act.
Copies of the complaint, charges, amended charges, notice of hearing, and
order of consolidation were duly served upon Stenhouse, Conners, Slater, Pinker-
ton's , the Organizing Committee, and the International.
On December 1, 1.948, the said Regional Director served upon the parties copies
of an "Amendment to Complaint."
On December 6, 1948, Charles 0. Holmes duly filed with the said Regional
Director in Case No. 20-CA-120 a charge against Pinkerton's and in Case No.
20-CB-33 a charge against the Organizing Committee and the International.
On February 1, 1949, Pinkerton's, the Organizing Committee, and the Inter-
national each duly filed answers wherein each Respondent admitted certain al-
legations of the complaint but denied the commission of any of the alleged unfair
labor practices.
On February 15, 1949, the said Regional Director issued a "Notice of Con-
solidated Hearing on Amended Complaint." 2 On the same day, copies of the
amended complaint, annexed to which were copies of the charges and amended
charges filed by the four complainants herein, and notice of consolidated hearing
were duly served upon Pinkerton's, the Organizing Committee, the International,
and the four complainants herein.
With respect to the unfair labor practices of Pinkerton's the amended com-
plaint alleged in substance that (1) since July 23, 1948, it has refused, and still
refuses, to employ Stenhouse because of his nonmembership in good standing
in the Organizing Committee; (2) since August 7, 1948, it has refused, and
still refuses, to employ, or dispatch to maritime jobs, Conners, Slater, and Holmes
because they have, and each of them has, failed to maintain membership in good
standing in the Organizing Committee; and (3) by such acts and conduct it has
interfered with the rights guaranteed Stenhouse, Conners, Slater, and Holmes
in Section 7 of the Act, thereby violating Section 8 (a) (1) and (3) thereof.
With respect to the unfair labor practices of the Organizing Committee and
the International, the amended complaint alleged, in substance, that they, and
that each of them, (1) threatened that they would "pull" the card of any Pinker-
ton's employee so that he could not work for Pinkerton 's unless he paid dues
to the Organizing Committee; (2) warned Pinkerton's employees that it would
be dangerous for them to work on the San Francisco water front without paid-up
dues books of the Organizing Committee ; (3) since on or about August 7, 1948,
caused Pinkerton's to refuse employment to Conners, Slater, and Holmes because
of their failure to maintain membership in good standing in the Organizing
Committee; and (4) by such actions they have, and each of them has; restrained
and coerced Pinkerton's employees in the exercise of the rights guaranteed in
Section 7 of the Act thereby violating Section 8 (b) (1) (A) and S (b) (2)
thereof.
2 The notice or order recited, in substance, that after the issuance of the complaint and
the amendment thereto, Holmes filed charges against Pinkerton ' s, the Organizing Committee,
and the International and the. Regional Director decided that, in order to effectuate the
purposes of the Act, all the charges should be considered together and hence he issued the
above-mentioned notice or order consolidating the cases of Stenhouse, Conners, Slater, and
Holmes. The notice or order further provided that the answers previously filed by Pinker-
ton's, the Organizing Committee , and the International be "deemed as answers to the
similar allegations in the attached Amended Complaint ." Despite this recital, Pinkerton's,
nonetheless , duly filed an answer to the amended complaint.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 3, 1949, Pinkerton's duly filed an answer to the amended complaint
denying the commission of any of the alleged unfair labor practices.. The answers
previously filed by the Organizing Committee and International to the complaint
were deemed to include denials of all and any unfair labor practices alleged to
have been committed by them in the amended complaint.
Pursuant to notice, a hearing was held in San Francisco, California, from
March 29 to 31, 1949, both dates inclusive, before Howard Myers, the undersigned
Trial Examiner who had been duly designated by the Chief Trial Examiner.
The parties were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence pertinent to the issues was afforded all parties. Before the taking
of any evidence, counsel for the International moved to dismiss the complaint as
against it because the charges and amended charges were not served upon the
International within the time specified for such service in Section 10 (b), of
the Act. The motion was denied with permission to renew. At the conclusion
of the General Counsel's case-in-chief, counsel for the International renewed
his motion to dismiss the complaint because of lack of due and timely service
of the charge and amended charges and for failure of proof. The motion was
denied. Likewise the motion of the Organizing Committee to dismiss the com-
plaint for lack of proof was denied. At the conclusion of the taking of the
evidence, the General Counsel's motion to conform the pleadings to the proof
with respect to minor variances was granted without objection. Counsel for
the Organizing Committee and the International then renewed his motions to
dismiss the complaint. Decisions thereon were reserved. The motion that the
complaint be dismissed as to the International because of lack of due and timely
service is denied. Not only were the charges and amended charges served
within the required time, but admittedly shortly after the original charges
of, Stenhouse, Conners, and Slater were filed with the Regional Director copies
thereof were sent to counsel for the International pursuant to his standing re-
quest that copies of all charges filed against the International be sent to him
as soon as filed. The International and its counsel received a copy of the
charges and amended charges of Stenhouse, Conners, and Slater prior to De-
cember 3, 1948,' because on that day counsel for the International and Organizing
Committee requested in writing an extension of time to file an answer, which
request was granted. Moreover, an answer was duly filed by the International
on February 1, 1949, which was within the 6-month period for service of
charges prescribed in Section 10 (b) of the Act. The motions of the Organizing
Committee and the International to dismiss the complaint for lack of proof are
disposed of in the body of this Report.
At the conclusion of the hearing oral argument, in which counsel for all
parties participated, was heard. The parties were then informed that they
might file briefs and proposed findings of fact and conclusions of law with the
undersigned within 15 days after the close of the hearing.' Briefs have been
received from counsel for Pinkerton's and the Respondent Unions, and from the
General Counsel, which briefs have been duly considered by the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
7 Holmes filed his charges on December 6, 1948, and due and timely service of those charges
were made upon all the Respondents herein.
i At the request of counsel for the Respondent Unions , the time to file briefs was extended
to May 6, 1949.
PINKERTON'S, NATIONAL DETECTIVE AGENCY, INC. 221
FINDINGS Or FACT
I. THE BUSINESS OF PINKERTON'S
Pinkerton's National Detective Agency, Inc., a Delaware corporation, is en-
gaged in the business of furnishing guards, detectives, protection personnel; and
similar services to individuals and business establishments. In connection with
such business Pinkerton's maintains regional offices in various parts of the
United States, including an office in San Francisco, California, which is the head-
quarters of its West Coast Region and the employees of which region are the
only ones involved in this proceeding.
In its West Coast Region, Pinkerton's, among other functions, furnishes guards
and services to operators of ships engaged in the transportation of passengers
and cargo between ports located in the various States of the United States, its
territories and possessions, and in foreign countries.
During the fiscal year ending December 1947, Pinkerton's in its West Coast
Region received in excess of $600,000 for its services approximately 85 percent of
which amount was received from employees engaged in transporting passengers
and cargo in interstate and foreign traffic. During all times material herein,. a
substantial amount of Pinkerton's West Coast Region income was received in
payment of services rendered to employers engaged in interstate and foreign
traffic.
Pinkerton's concede, and the undersigned finds, that during all the times
material herein Pinkerton's was, and still is, engaged in commerce, within the
meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Contract Guard's and Patrolmen's Organizing Committee, affiliated with the
International Longshoremen's and Warehousemen's Union and the Longshore-
men's and Warehousemen's Union, affiliated with the Congress of Industrial
Organizations, are labor organizations admitting to membership employees of
Pinkerton's.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion by Pinkerton's; restraint and coercion
by Organizing Committee; the discharges; and the refusal to employ Stenhouse
1. The pertinent facts'
Under date of August 1, 1940, the International, acting in behalf of certain
of its Locals,` entered into a written contract with Pinkerton's. The contract,
by its terms was to remain in full force and effect until June 1.5, 1947, and was
to be renewed from year to year thereafter unless either party gave notice to
the other party in writing of its desire to modify or terminate it not less than
60 days prior to its anniversary dates.
The sections of the afore-mentioned contract which directly bear upon the
pertinent issues of this proceeding read, in part, as follows:
Section I. Recognition :
The Employer (Pinkerton's) recognizes the Union (the International in
behalf of the stated Locals) as the sole collective bargaining agent . . . for
all persons employed as.guards and patrolmen. . . .
"Being Locals 34 (San Francisco Bay Area), Local 6 (Stockton), Local 40 (Portland,
Columbia River Area), and Local 26 (Long Beach, Wilmington, and San Pedro Area).
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section II. Union Shop :
It is understood in hiring to fill all vacancies or new positions, the Em-
ployer will, under this Agreement, choose his own source of new employees.
The Employer agrees to notify the Union of such employment. New em-
ployees so hired under and subject to this Contract shall join the Union
within fifteen (15) days of the date of their employment.
The Employer agrees to terminate with forty-eight (48) hours the em-
ployment of any employee who becomes delinquent and in bad standing
with the Union.
.Section XIV. Labor Relations Committee:
(a) The Union and Employer shall each appoint an equal number of
representatives to constitute a Labor Relations Committee in each port... .
(b) To certify the list of registered men composed of present employees
and to make such additions to the registered list from the Employer's list
of extra men when increased work opportunities warrant. No employee not
on the registered list may be employed while there is any employee on the
registered list qualified, ready, and willing to go to work.
The Labor Relations Committee was established pursuant to the provisions
of the contract and, although the composition thereof changed, the committee,
among other things, periodically prepared register lists of persons who, under
the contract, were eligible to be placed thereon. Such a committee was
functioning at the time of the present hearing.
The said agreement of August 1, 1.946, was renewed by consent of the parties
thereto on June 15, 1947, and again on June 15, 1.948. In fact, the said agree-
ment, especially the union-shop provision thereof, was still in force and effect
at the time of the hearing herein.
Sometime in December 1947, Local 34 sequestered its maritime guards and
patrolmen members and placed them into an organization known as the Con-
tract Guard's Organizing Committee, which organization was chartered by. the
International in January 1949. Since the sequestration, the members of the
Organizing Committee functioned, with respect to their employment with Pinker-
ton's, and with the latter's tacit approval, under the afore-mentioned 1946 con-
tract and the several renewals thereof.
Sometime between June 15 and August 7, 1948, representatives of Pinkerton's
and representatives of the Organizing Committee met. According to the credited
testimony of J. O. Camden, Pinkerton's assistant manager and manager • of its
West Coast Region, "the primary purpose" of the meeting was .to resolve the
question with respect to the enforcement of the union-shop agreement of the
August 1946 contract. Pinkerton's representatives and its attorneys, who also
were at the meeting, took the position that the union-shop provision of the
contract was repugnant to the Act while, on the other hand, the representatives
of the Organizing Committee and its attorney, who also was at the meeting, con-
tended that since the contract had automatically renewed itself all the provisions
thereof were still in full force and effect. The record does not indicate the
outcome of this meeting.
According to the credited testimony of Thomas W. Stenhouse, one of the coin-
plainants herein, he was first employed by Pinkerton's in 1945, and after about
7 months' employment as a water-front guard he quit; he was rehired in June
1946, and worked continuously thereafter as such a guard until March 29, 1948;
on that day he received a telephone call from Pinkerton's Dispatcher Jamison
PINKERTON'S NATIONAL DETECTIVE AGENCY, INC. 223
informing him that, Michael Johnson, the Organizing Committee's organizer,
had informed Pinkerton's that he could no longer work for Pinkerton's as a
water-front guard ; and when lie asked Jamison the reason for such action,
Jamison stated that Johnson was writing a letter giving his reasons for the
requested, discharge. Under date of March 31, 1948, Johnson wrote Pinkerton's
demanding Stenhouse's immediate discharge because he was delinquent in his
dues. ' Pursuant to Johnson's demand, Stenhouse was laid off on March 31,
and has not worked for Pinkerton's since that date.
Under date of July 7, Johnson addressed a letter "To All Pinkerton's Guards"
reading, in part, as follows :
In order to dispel some of the confusion among the membership I am
writing each member regarding the following:
(1) The coastwide agreement between ILWU-CIO and the Pinker-
ton's Agency has been extended to June 15, 1949 by mutual agreement
between the Company and the Union, and all of its terms and conditions
are in effect and full force until that date. Anyone who tells you any
different is just a plain bar and is only doing so to break down your
union-the union that raised your wages $4.00 a day in two years.
On July 1.9, Stenhouse went to Camden's office and requested a job as a water-
front guard. After some discussion regarding whether under the Act, Pinker-
ton's refusal to give Stenhouse employment would be a violation of the Act,
Camden requested Stenhouse to telephone him later in the day. Pursuant, to
Camden's request, Stenhouse telephoned him about 4 o'clock that afternoon,
and Camden told Stenhouse to quote Camden's testimony, "We will put you
back to work. Hold yourself available for an assignment on Monday."'
Not hearing from the dispatcher as to any assignment, for it was the normal
practice for the dispatcher to telephone the guards with respect to their assign-
ments unless the guard was on a permanent assignment, Stenhouse telephoned
the dispatcher the following day, July 20, and was informed that he knew of no
assignment for him.
On July 21, Stenhouse telephoned Camden to inquire why he did not receive
the promised assignment. Camden, according to Stenhouse's testimony, which
the undersigned finds to be substantially in accord with the facts, said "Its my
fault, Mr. Stenhouse. I failed to tell them. You will get your four days' pay
anyhow, and your five days for the following week." Stenhouse received the
promised 4 clays' pay .on July 23, but was not paid for the following week. This
was the last pay received by Stenhouse from Pinkerton's.
According to Stenhouse, on Monday, July 26, he went to Pinkerton' s and there
saw the Captain of the Guards and that the following then ensued :
A. Captain Gerard asked me if I had seen Mr. Camden. I says, "no".
He says, "He wants to see you." So, we both walked in the .office together.
Mr. Camden, after we got sit down, he said, "I just wanted to explain to you,
Stenhouse, what the situation is. They are going to walk off the job if you
walk on." "Well," I said, "if I was as selfish as they are-they don't care
whether I work or not, and 'I got four children to feed, I shouldn't care
whether they work or not. So if you lose your contract with the A. P. L.,
° Stenhouse joined Local 34 in or about August 1946 and ceased paying dues to that
organization or to the Organizing Committee sometime prior to February 1948.
'Evidently Camden was in error with respect to the day of the week, for July 19, was
a Monday.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they would naturally lose their jobs." So, he says, "Well, I will tell you
before we go any further with this, I would like to talk to Mr. Kilpatrick,"
who is some kind of head man at the APL.
Q. Would you explain what you mean by the APL?
A. American President Lines. Steamship lines. Steamship. I asked
him how long it would take him to do this. Be said, "Wednesday or not
later than Thursday." I said, "Okay". . . .
Camden's version .of the July 27 meeting is as follows:
A. . . . On the Friday of that week, he came into the office, and I told
there had been no assignments. At that time Mr. Stenhouse was president
of an independent guard and watchmen's union. Later lie had discussed
his connection with that organization with me and had advised me that he
was attempting to cause our guards to become members of that organiza-
tion ; that he had also conferred with the representatives of the Waterfront
Employers' Association. Prior to that time they had made a statement that
in negotiating contracts for waterfront guards in the future, they would
not employ either AFL or CIO guards ; that it would have to be some guard
organization that complied with the terms of the Taft-Bartley Act. On
this Friday, when Mr. Stenhouse came in, I said to him, "It is evident now
that there will be a waterfront strike September 2nd. That is a foregone
conclusion, and no one knows what the outcome of this will be. In any
event, it will iron out the situation of waterfront guards. Because of your
connection; as President of this independent organization, it seems to me
that it would be best for all concerned that we slid not attempt to use you
any further," and Mr. Stenhouse agreed with that, and from that day until
this, there has never been any question about employment with us for him.
Stenhouse appeared to the undersigned to be a forthright and honest witness.
On the other hand, Camden gave the undersigned the impression that he was
withholding the true facts through fear that he may say something that might
be detrimental to the case of the Respondent Unions. While being examined by
the General Counsel, Camden repeatedly looked inquiringly at Johnson, who sat
at the table next to the counsel for the Respondent Unions, before answering
the questions propounded to him by the General Counsel. In fact, on one
occasion the undersigned had to request Camden to look away from Johnson and
to look at Mr. Magor, the representative of the General Counsel, who was then
questioning him. While the undersigned did not see any evidence of any im-
proper conduct on Johnson's part, nor does the undersigned believe that Johnson
or counsel for. any of the Respondents did anything improper, nonetheless the
undersigned finds that Camden was not a straightforward witness. Accordingly,
the undersigned finds that Stenhotise's version of what transpired at the July
26 meeting to be substantially in accord with the facts. .
During the first week of. August, the Organizing Committee called a strike
of its water-front guards. On August 7, the following agreement was entered
into:
RETURN TO WORK AGREEMENT
In meeting held today, August 7, 1948 under the auspices of the Federal
Mediation and Conciliation. Service, the International Longshoremen's and
Warehousemen's Union on behalf -of ILWU Contract Guard's and Patrolmen
hereafter referred to as the Union and the Pinkerton's National Detective
Agency hereinafter referred to as the employer who are parties to the labor
PINKERTON'S NATIONAL DETECTIVE AGENCY, INC. 225
agreement dated August 1, 1946 as renewed on June 15, 1947 and June 15,.
1948 due hereby agree as follows:
1. Preference of employment shall be given to members of life Union wha
are available, willing and able to work.
2. When new men are employed they vvill,be. notified that there is a labor
agreement existing between the Employer and the Union.
3. The Union will be furnished each clay a list containing the names,
addresses and telephone number of all new employees.
4. When an employee is discharged or suspended the Employer shall within
twenty-four hours following such discharge furnish the Union with a
complete statement setting forth in detail the reasons for the discharge or
suspension.
5. Section 10 of the labor agreement "vacations" sets forth all of the
qualifications for vacation pay and no other qualifications shall be added.
6. Representatives of the Employer and the Union will meet within the
next seven days to revise the current registration list.
7. Preference of employment on steady jobs shall be given according to
seniority to men on the registration list.
S. There shall be no discrimination or reprisal by the Employer against
any employee in this dispute.
Signed in San Francisco, California, this seventh day of August, 1948.
INTERNATIONAL: LONGSIIO11E1[EN'S AND AVARr:HOUSEJIEN's UNION.
PINKERTON'S NATIONAL DETEcrivE AGENCY, INC.
About 9 o'clock on the night of August 7, a substitute dispatcher telephoned
John T. Conners, one of the complainants herein who had worked continuously
for Pinkerton's as a water-front guard since his employment by it on September
23, 1.946, and who had joined Local 34 about 1.5 days after being first employed,,
and told Conners that he was not to report to his regular assignment.
On the following morning, August 8, Conners telephoned, O'Neal the regular
dispatcher, and according to Conners' undenied and credible testimony the
following conversation was had:
A. I said, "Air. O'Neal," I said, "What is the score?" "Well," he said,
"We got a list of names here that Mike Johnson brought up to its, and your
name is on the list of nonpayment of dues. So, we can't do anything about
it." "Well," I says, "It's funny, can't you see somebody or something," and
lie said, "1'11 try to get ahold of Captain Gerard and Air. Camden and phone
you back." And that's the last I heard of it.
On August 9, Conners, acconpanied by Stenhouse, went to Camden's office and,.
informed Camden that he had had a steady Job on the S. S. Marine Lynx but
that someone had "pulled" his card and hence he was taken off the job by the
dispatcher. After making some inquiries, Camden told Conners to see the Captain
of the Guards about the matter. Conners did as requested and was told by the
Captain of the Guards that he could not work `_or Pinkerton's because his name
was on the list presented by Johnson to Pinkerton's of those members of the
Organizing Committee who were delinquent in their dues.'
On August 1.0, a substitute dispatcher telephoned Conners and told him to re-
port for work the next night at a certain pier on the "graveyard" shift. The
following morning, Conners telephoned Camden and asked him whether he should
8 Conners ceased paying dues to Local 34 or to the Organizing Committee in May 1948.
903947-51-vol. 90-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carry a gun on the assigned job because of the dangerous location of the job
plus the fact that he was not a paid-up member in the Organizing Committee.
Conners added that lie thought his life would be in jeopardy and therefore thought
it advisable to arih himself. Camden told Congers not to carry a gun to work.
Later in the day, Camden informed Conners that he should not report to the
:Assignment.
On September 1.6, Dispatcher O'Neal telephoned Conners and assigned him to
a job. Conners told O'Neal that he did not have a paid-up dues book and in-
tluired whether the Organizing Committee would give him a clearance. O'Neal
replied that that matter had been arranged for and that Conners should see
Johnson and obtain a clearance from him.
That afternoon, September 16, Conners accompanied by Walter J. Slater,
another complainant herein, called upon Johnson, whose offices were located in
the rear of a restaurant and tavern. According to the credible and undenied
testimony of Conners, whose testimony regarding this incident is substantially
corroborated by that of Slater, the following transpired in Johnson's office.
Q. (By Mr. MAGOI..) What did you have to say to Mike Johnson when
you saw him at that time?
A. Well, we said, we mentioned that we come down there for a clearance.
The first words he says "Well," he says, "You got a hell of a crust coming
,down here."
Q. What did you say to that'?
A. Well, I says, "A man's got to live," I said, "work," I says. "Well."
he says, "I don't know. You guys got jurisdiction." He says, "You fellows
taking-going down there on the waterfront," he says, "with all the marine
.cooks, radio uien, marine firemen, marine engineers, longshoremen,"-he
says-he says, "I am not responsible for what happens down there." ° And
he says-he said, "I don't know if I will give you fellows a clearance or not."
And then he stayed there for a while, about five minutes, and then he said, "I
am going out to make a phone call." So, he went out and made a phone
call, I guess lie did, I don't know, and pretty soon, about five minutes after,
a fellow named-I don't know his last name-worked for the Pinkerton's
Agency, they called him "F renchy-" is his first name-he came in and says
"What the hell you guys doing here?" And I says, "Is it any of your business
what I am doing here`?" I said, "I am doing business with Mike Johnson."
"Well," lie says, "I am on the committee." I says, "I don't know anything
about that," I says, "That's all." Then lie went out and that's all the
further we-and we sat there and that was all.
* * * * * * *
Q. (By Mr. MACOR.) Did Mike Johnson ever come back?
A. No. We sat there for forty-five minutes. At different times I went
through the hallway, and Mike Johnson was sitting in the saloon there.
* * * * * * *
Q. Did you see Mike Johnson as you left?
A. I saw him sitting in the-on the stool in the saloon as we left.
At that time there was a general water front strike on the west Coast and no one was
allowed to pass through the picket line in order to work without first obtaining a clearance
from a committee composed of representatives of the striking unions. Several affiliates of
the International, among others, were on strike. Before any water front guard was per-
mitted to pass through the picket line lie would have to secure a clearance from Johnson or
some other authorized representative of the Organizing Committee.
PINKERTON'S NATIONAL DETECTIVE AGENCY, INC. 227
Q. Did he say anything to you?
A. No sir.
The following day, September 16, Conners saw the Captain of the Guards,
O'Neal, and another dispatcher regarding a work assignment . While they were
discussing the matter , Johnson called on the telephone . According to the unde-
nied and credible testimony of Conners the following then ensued:
. . . O'Neal went to the phone and answered , and Mike Johnson had rang up.
He says, "Where are them guys that wanted that clearance , to come down
here. They going to come down here or not ?" I says, "O'Neal, you go
back and ask Mike Johnson if a man has to have his book paid up-full
book paid up ?" He said-I could hear it as well as I know my own name,
he says, "Certainly," over the phone.
Q. Did Mr. O'Neal come back after that conversation?
A. Yes sir.
Q. What did Mr. O'Neal say?
A. He told Captain Gerard and Mr. Baxter the same thing as he told me,
but I heard it myself.
Q. What did he say?
A. He says, "Certainly you have to have the dues in the book paid up,"
and Captain Gerard says, "That's news to me."
Q. Did they offer you any assignment at that time?
A. No sir. I says, "Captain, what are we going to do with the situation.
I can ' t afford to lay around here ." "Well," he says , "I don't know what to
do about it ," he says . "I will let you know later ." I said, "Well, you going
to give me a ring or assignment , or what you going to do about it?" He
says, "Well, I will let you know later ." That was all.
On October 7, a dispatcher , by telephone , offered Conners a 2-day assignment
guarding an industrial building. Conners refused the assignment because it
would not only interfere with his acceptance of another job which he had just
secured and to which he was to report on the second day of the proffered assign-
ment by the dispatcher but also for the reason that the proffered assignment
was not substantially equivalent to the position which he held with Pinkerton's
plus the fact that industrial work paid 30 cents per hour less than what Conners
received for water front work.
According to the credited testimony of Walter J. Slater , he was first employed
by Pinkerton 's about October 1, 1946 ; he joined Local 34 about 15 days later ;
he did not pay any dues to the Organizing Committee or to Local 34 after May
1948; except for a period of about 1 month when he was assigned to industrial
work , he worked exclusively for Pinkerton ' s as a water front guard.
Slater testified without contradiction , and the undersigned finds, that sometime
between July 20 and 25, Johnson called him on the telephone and said "unless
you get over here and pay some dues, you are not going to work" ; that he
replied, "Who the hell do you think you are? "; and that Johnson then said
"If you don 't get over here and pay somes dues, I'll show you . Now, I'll give
you until Thursday to get over here and pay them dues , or you don ' t work."
The same day that the above -related telephone call took place or the following
day, Slater related the Johnson telephone conversation to O'Neal, who merely
said , "I have no comment at this time."
Upon completion of his day's work on August 6, Slater telephoned O'Neal
regarding his next assignment . O'Neal instead of giving Slater an assignment,
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said, to quote Slater's credible and undenied testimony, "Don't you know that
we have got a strike on here on account of you fellows?" O'Neal then informed
Slater that he would communicate with him later.
On August 7, Dispatcher Jamison asked Slater to take a 1-day industrial
assignment as a special favor to him which Slater did. The following day,
August 8, Slater telephoned O'Neal to ascertain when he would receive his
next water front assignment. O'Neal replied "Until this strike10 is settled, we
cannot give you any information."
Around the middle of August, Slater was assigned to a water front job.
Upon being advised of the assignment, Slater spoke to Camden on the telephone
and asked him, to quote Slater's credible and undenied testimony, "if he
[Camden.I thought it would be advisable for me to take the assignment at
Pier 41, when conditions were as they were, and he says, `No, Slater. I don't
think it would be advisable. I thank you for calling me, and I will have you
released from this assignment, and I will call you back later and talk to you."'
In the latter part of August or early in September when the dispatcher
assigned Slater to his next assignment, he asked the dispatcher whether lie
thought he should accept the assignment without a clearance from . Johnson.
The dispatcher then suggested that he and Conners see Johnson and obtain
clearances to go through the picket lines of the striking water front employees.
Slater and Conners saw Johnson, and the results of their efforts to obtain
clearances are fully set forth above. Johnson did not give the clearances and
Slater has not worked for Pinkerton's since August 7. Slater, however, was
offered industrial --work, which he declined because it was less desirable than
water front work and it paid 30 cents per hour less.
According to the credited testimony of Walter L. Holmes, one of the com-
plainants herein, he was first employed by Pinkerton's on June 13, 1946, as a
water front guard ; lie joined Local 34 about a month after the commencement
of his employment ; lie ceased paying dues to the Organizing Committee or to
Local 34 after June 1., 1948; he normally worked as a water front guard during
his entire employment with Pinkerton's.
Holmes testified without contradiction and the undersigned finds, that for
approximately 6 months prior to August 7, he worked steadily as a guard on
the S. S. Marine Lynx; that after finishing his day's work on August 7, he tele-
phoned the dispatcher about his next assignment; and that the dispatcher said,
"I am sorry, I3ohnes, but you can't go to work tomorrow, . . . Michael Johnson
just handed us a list of men that can't go to work, and your name is on the list."
On August 9, Holmes sent Johnson a letter enclosing his dues book and a postal
money order for $5 in payment of his July and August 1948 dues. A few days
later, the letter and money order was returned to Holmes but not the dues book.
On the same day that he sent the letter and. enclosures to Johnson, Holmes
informed the dispatcher of that fact and asked for an assignment. The dis-
patcher replied, to quote Holmes' undenied and credible testimony, "No, we
can't do that. Not until we get an O. K. or something similar to that from
Michael Johnson."
Upon the return of the letter lie had sent to Johnson, Holmes went to Pinkdr-
ton's and showed the returned letter and money order to Dispatcher Baxter.
After inquiring from Holmes whether Holmes had seen Johnson about the mat-
ter, and receiving a negative reply, Baxter offered Holmes a part-time industrial
15 This strike was called by the Organizing Committee and was settled pursuant to the
"Return to work Agreement" set out at length above.
PINKERTON'S NATIONAL DETECTIVE AGENCY, INC'. 229
job, Holmes refused to accept the assignment because it was less desirable
and paid 30 cents per hour less than a water front job.
Holmes received some few water front assignments during August. These,
however, were terminated on August 28. Thereafter , since Pinkerton 's refusal
to give Holmes any further water front assignments . However , he requested
and received some industrial assignments . These assignments were too objec-
tionable to Holmes because of their long hours, their uncertainty , and their low
wages. On November 15, when it became apparent to Holmes , because of the
union-shop clause in the contract between Pinkerton ' s and the Organizing Com-
mittee , that he could not work as a water front guard for Pinkerton 's unless he
was a member in good standing in the Organizing Committee , he returned to
Pinkerton 's his equipment.
2. The concluding findings
Since August 1, 1946, Pinkerton's has recognized Local 34 and , after the
sequestration by the latter of the Pirkerton's water front guards and patrol-
men, it recognized the Organizing Committee as the exclusive collective bar-
gaining representative of all its water front guards and patrolmen.
The contract which was entered into on August 1, 1946, provides for a
union shop on a 15-day basis and for a maintenance of membership. There
is no contention that the contract was not valid when made, nor that the renewal
thereof on June 15, 1947, was violative of any then existing legislation.
The issue involved herein turns on the questions whether, as a condition of
continuous employment by Pinkerton's, (1) all its water front guards and
patrolmen hired after June 15, 1948, were required to become members of either
Local 34 or the Organizing Committee, despite the 1947 amendments to the Act
and (2) whether the said classified employees, once having taken out memher-
ship in either union, before or after said date, were required to maintain such
membership in good standing.
Both of these questions must be resolved in the negative. - The Congress in
1947, amended the Wagner Act so as to provide that no union-shop clause may
validly be included in a collective bargaining contract unless and until a union-
security authorization election was held by the Board. No such election was
.held and none was requested. As the union-shop clause does not satisfy the
conditions laid down in the proviso of Section S (a) (3) of the Act," the union-
shop provision is therefore illegal, despite the automatic renewal in the con-
tract." Even if no action had been taken pursuant to that clause, the mere
existence of such a provision acts as a restraint upon those desiring to refrain
from union activities and membership, within the meaning of Section 7 of the
Act. In the present proceeding affirmative action actually was taken by Pinker-
ton's and the Organizing Committee with respect to that clause and hence
it must be found that Pinkerton's and the Organizing Committee were in accord
This proviso provides:
. nothing in this Act, or in any other statute of the United States, shall preclude
an employer from making an agreement with a labor organization . . . to require as
a condition of employment membership therein on or after the thirtieth day following
the beginning of such employment or the effective date of such agreement, whichever is
the later, . . . (ii) if, following the most recent election held as. provided in section 9
(e) the Board shall have certified that at least a majority of the employees eligible to
vote in such election have voted to authorize such labor organization to make such an
agreement. . . . IEmphasis supplied.
'z See Section 102 of the Act.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in denying employment to Stenbouse on and after July 23, 1948, and in dis-
charging Conners, Holmes , and Slater because each of them refused to remain
members in good standing in the Organizing Committee.
Counsel for Pinkerton ' s and for the Organizing Committee contended at the
hearing and in their respective briefs that the union -shop provision in the con-
tract played no part in Pinkerton ' s determination not to give. Stenhouse em-
ployment on and after July 23, 1948 , and its refusal to assign to water front
jobs to Conners and Slater after August 7, 1.948, and to Holmes after August
28, 1948 , but maintained that such employment was. refused to the four com-
plainants , among other reasons, due to lack of work. These contentions are not
supported by the record.
After a strike had been called by Johnson and in order to settle the strike
Pinkerton 's, on August 7, 1948, entered into the "Return to Work Agreement"
which is set out at length above. That agreement is clearly repugnant to the
Act and it was known by Pinkerton ' s to be so because at, a meeting held prior
to August 7, Pinkerton ' s attorneys stated to the representatives of the Organiz-
ing Committee that the union -shop provision of the 1949 agreement could no
longer be enforced because of 1947 amendments to the Act. Furthermore,
within a few clays after the execution of the "Return to Work Agreement,"
Camden informed Johnson that the agreement was violative of the Act and
therefore Pinkerton 's could not , with impunity , carry out its terms.
The credible evidence clearly shows, moreover , as Pinkerton's counsel con-
cedes in his brief , that Conners, Slater , and Holmes were removed from their
respective jobs pursuant to an understanding reached at the time the "Return
to Work Agreement" was executed . Regarding this understanding , Camden
testified , and the undersigned credits this position of Camden ' s testimony, as
follows :
Q. On on about August 7, did you order that DIr. Conners , Mr. Slater,
and Mr . Holmes.be removed from employment on Marine Lynx? Did you
ask that they be taken off the job ? Did you give instructions that they be
taken off the job?
A. I don 't think that I specifically instructed that they be taken off, but
it was definitely understood and I knew that they were to be taken off
through our Patrol Superintendent at that time.
Trial Examiner DiYERRS. It was understood between whom?
Mr. MAOOI. Between whom?
The WITNESS. Between myself and the Patrol Superintendent.
Trial Examiner MYFxs. What do you mean "understood"?
The WITNESS . Well, he was present at the time this return to work
agreement was signed , and it was understood there and agreed that these
men would be taken off the registered list.
Trial Examiner MY^rr; S. Understood and agreed between whom?
The WITNESS . Our Patrol Superintendent and myself , and Mr . Johnson
was also present.
Admittedly , Conners; Slater , and Holmes were selected for layoff because they
were delinquent in. clues to the Organizing Committee . Pinkerton 's points to the
fact that after Camden explained to Johnson , a few days after the execution
of the August 7 agreement , the illegality of the agreement and requested per-
mission to reinstate Conners, Slater , and Holmes , Johnson said " Send [them]
back to work" and thereafter the three above-named persons were offered
employment by Pinkerton ' s. The credible evidence clearly shows, however,
PINKERTON 'S, NATIONAL DETECTIVE AGENCY, INC. 231
that Conners and Slater were not assigned to water front work after August 7
and if any assignment to water front jobs were made and refused by them,
or either of them, such refusals were with the approval or suggestion of
Camden. As for Holmes, it is true that he did receive some water front assign-
ments up to and including August 28, 1948, but since that date he has not been-
assigned to any such work.
Pinkerton's further contended that Conners, Slater, and Holmes would not
have been assigned to water front work during the course of the West Coast
maritime strike, which commenced on September 2, 1948, because of a lessened-
need for guards on the water front. Pinkerton's records show, however, that
a guard named Crank was dispatched by Pinkerton's to water front work on
August 1.4, 1948, and at the time of the hearing still was being dispatched to,
such work. Crank. is listed on the seniority list, which list was prepared
jointly by Pinkerton's and the Organizing Committee pursuant to the August
1, 1.946, contract for the purpose of dispatching guards in order of their senior
ity, in position No. 123; while Holmes occupied position No. 56; Conners No. 89
and Slater No. 92. Thus, Pinkerton's own records refute its defense that
Conners, Slater, and Holmes would not have been assigned to water front
work during the course of the West Coast maritime strike, for each of them.
had more seniority than did Crank.
With respect. to Stenhouse, the record clearly indicates, and the undersigned
finds, that he was considered a Pinkerton's employee and paid by it untiI-
July 23, 1948, and that since that date he has not been assigned to any job
by Pinkerton's. Its contention that at the time Stenhouse received his last
pay check in the latter part of July, he agreed, because of "existing conditions"
not to continue in Pinkerton's employ is without merit. No such agreement was
made by Stenhouse. Besides, the "existing conditions" referred to by Camden
in his conversation with Stenhouse on July 26, clearly meant the enforcement
of the union-shop provision demanded by Johnson and not to the threatened
coast-wide maritime strike which strike Camden testified he was referring to.
when he said "existing conditions." This finding is buttressed by the credible
testimony of Stenhouse, who testified that Camden opened the meeting of July
26, by stating, "I just wanted to explain to you, Stenhouse, what the situation
is. They are going to walk off the job if you walk on." The "they" referred
to by Camden in the above quote, the record shows, referred to the members
of the Organizing Committee and to no one else.
The credible evidence, coupled with the admission by counsel for Pinkerton's,.
clearly indicates that Conners, Slater, and Holmes were relieved of their
respective assignments on August 7, 1.948, upon the demand of the Organizing
Committee. The strike on August 1948, was called by Johnson and it was not
called off until Pinkerton's agreed to do the bidding of the Organizing Com-
mittee and lay off the three-named persons. It thus follows that the "'Return
to Work Agreement" was entered into in order to escape the penalties that were
implicit in the implied threat of the Organizing Committee. In other words,
Pinkerton's entered into the 1948 agreement because it feared that by refusing
to do so it would be visited with economic loss. As in the case of Stenhouse,
Pinkerton's refused to assign him to any job for fear that to do so, the Organiz-
ing Committee would call a strike. The choice selected by Pinkerton's was
without the pale of the law. Between the penalties attached to a disregard
of the obligation imposed by the Act and the economic hardships that might
develop from the threat of the Organizing Committee, Pinkerton's elected to bow
:232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the latter and accepted the former. Pinkerton's must therefore be directed
to reverse its position to conform to the requirements of the law.
Pinkerton's and the Organizing Committee also contended at the hearing and
in their respective briefs, that Holmes voluntarily quit on November 15, 1948.
They point to the fact that he turned in his equipment that day with the
.announcement that lie was quitting his job.. It is uncontradicted that, after
August 7, Holmes was assigned to water front work for a short period of time
and his last assignment to such work was on August 28. After that date, Holmes
was assigned, from time to time, to industrial work at less pay while Crank,
.an employee with less seniority, was assigned to the water. front. Assignment
of Holmes to industrial work, at a lower rate of pay than water front work, is
not substantially equivalent employment, within the meaning of the Act. The
undersigned is of the opinion, and finds, that Holmes was discriminated against
because of his failure to remain a member in good standing in the Organizing
Committee, and thus was not assigned to water front work, and that on Novemn-
ber 15, 1948, he was constructively discharged by Pinkerton's and the Organizing
Committee through their joint action.
Upon the entire record in the case, as epitomized above, the undersigned is
convinced, and finds, that Conners and Slater were laid off on August 7. 1948, and
-thereafter refused water front assignments because each of them was delinquent
in their dues; that Holmes, for the same reason, was refused water front
assignments after August 2S, 1948; that, for the same reason, Stenhouse was
refused employment after July 23, 1948; that the Organizing Committee insisted
-that the four complainants be laid off and/or refused water front assignments ;
and that neither Pinkerton's nor the Organizing Committee was protected in such
activities by the union-shop provision of the August 1, 1946, contract or by the
provisions of the "Return to Work Agreement" of August 7, 1948, under the
proviso in Section 8 (a) (3) of the Act. The undersigned further finds that by
such acts and by the other activities of Pinkerton's and the Organizing Committee,
as summarized above, (1) Pinkerton's has discriminated as to the hire and
-tenure of employment and as to the terms or conditions of employment of Sten-
house, Connors, Slater, and Holmes-in order to encourage membership in the
Organizing Committee, thereby interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8 (a) (1) and (3) thereof; and (2) the Organizing Coin-
inittee has caused Pinkerton's an employer, to discriminate against the four-
named complainants herein in violation of Section 8 (a) (3) of the Act, thereby
restraining and coercing the employees of Pinkerton's in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section 8 (b) (2) and 8 (b)
(1) (A) -thereof. The undersigned also finds that by Johnson's threats to the
Pinkerton's employees, after June 15, 1948, that if they did not remain members
in good standing in the Organizing Committee and pay dues to it, they would
lose their jobs with Pinkerton's, the Organizing Committee violated Section
8 (b) (1) (A) of the Act.
3. The liability of the International for the unfair labor practices
The amended- complaint alleged that the International and the Organizing
Committee are jointly responsible for the unfair labor practices alleged. The
latter organization is an affiliate of the former. Obviously, an international
union cannot be charged ipso facto with violating the Act because one of its
PINKERTON'S NATIONAL DETECTIVE AGENCY, INC. 233
affiliates may have committed an unfair labor practice without some showing
of participation therein by the parent organization. The facts found under
Section 1 and 2 above, show that the original agreement of August 1946, was
executed by Johnson as an official of the International and that he executed
the agreement as an official of the International on behalf of certain named
affiliates. At the hearing and in his brief, the General Counsel, in support of
his contention that the International should be found to have participated in the
unfair labor practices found to have been committed by the Organizing Coin-
mittee and hence a finding that the International violated the Act should be
made, points to : (1) That Conners, on June 14, 1.948, paid his dues to Johnson
and received a receipt on the letterhead of the International and signed by
Johnson as financial secretary; (2) that the letter addressed "To All Pinker-
ton's Employees," dated July 7, 1948, which letter is set out, in part, above was
signed "Johnson Organizer" ; that the "Return to Work Agreement" of August 7,
1948, was entered into by the International "on behalf of I. L. W. U. Contract
Guards and Patrolmen" and Johnson was one of signatories thereto ; and that
Camden testified that all dealings with respect to the labor contracts covering
Pinkerton's water front guards and patrolmen were with "the same representa-
tives of the Union that we started out with."
However, according to the credible and undenied testimony of Germain Bulcke,
Bulcke succeeded Johnson as second vice president of the International on June
24, 1947; that thereafter and until about January 26, 1948, Johnson was an inter-
national representative of the International ; and that on the latter date Johnson
ceased all official connection with the International and became an employee of
the Organizing Committee. Since it has been found that no unfair labor prac-
tices had been committed prior to June 15, 1948, at which time Johnson was no,
longer an officer, representative, or an employee of the International, but was
in the employ of the Organizing Committee, it follows that the International
can not be held responsible for the unfair labor practices committed by Johnson
and the Organizing Committee and the undersigned so finds. The undersigned
further finds that the evidence is insufficient to base a finding that the Inter-
national violated the Act by the acts and statements of Johnson and the
Organizing Committee, as found above, nor does the evidence show that the
International participated in the unfair labor practices found herein to have
been committed by the Organizing Committee. Accordingly, the undersigned
will recommend that the allegations of the complaint with respect to the Inter-
national be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Pinkerton's and the Organizing Committee set forth in Section
III, above, occurring in connection with the business operations of Pinkerton's,.
set forth in Section I, above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States and foreign countries,
and such of them as have been found to be unfair labor practices tend to lead,
and have lead, to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Pinkerton's and the Organizing Committee have engaged
in unfair labor practices, the undersigned will recommend that they, and each
of them, cease and desist therefrom and take the following affirmative action
which the undersigned finds will effectuate the policies of the Act.
:234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since it has been found that the Organizing Committee induced Pinkerton's,
(1) to discriminatorily refuse employment to Thomas W. Stenhouse on and after
July 23, 1948, because he failed and refused to maintain membership in good
standing in the Organizing Committee, (2) to discriminatorily discharge John
T. Conners and Walter J. Slater on August 7, 1948, because each of them failed
and refused to maintain membership in good standing in the Organizing Coin-
Inittee, and (3) to discriminatorily refuse water front assignments to Charles
0. Holmes on and after August 7, 1.948, except on a few occasions between August
7 and 28, 1948, and constructively discharged Holmes on November 15, 1948,
because he failed and refused to maintain membership in good standing in the
Organizing Committee, the undersigned will recommend that Pinkerton's offer to
Stenhouse immediate employment as a water front guard, to which position
he would have been assigned had he not been discriminated against by Pinkerton's
and the Organizing Commitee, and to offer immediate and full reinstatement to
Conners, Stater, and Holmes* to their former or substantially equivalent posi-
tions 13 without prejudice to the seniority and other rights and privileges which
the four complainants herein would have enjoyed had they not been discriminated
against.
Since it has been found that by such discrimination, the Organizing Committee
violated Section 8 (b) (2) of the Act and Pinkerton's violated Section 8 (a) (3)
thereof, the undersigned will recommend that Pinkerton's and the Organizing
Committee, jointly or severally, (1) make Stenhouse whole for any loss of pay
he may have suffered by reason of such discrimination, by payment to him of
a sum of money equal to the amount he normally would have earned as wages
during the period from July 23, 1948, to the date of Pinkerton's offer of employ-
ment, less his net earnings,' during said period; (2) make Conners, Slater and
Holmes whole for any loss of pay they may have suffered by reason of such
discrimination, by payment to each of them of a sum of money equal to the
amount he normally would have earned as wages during the period from August
7, 1948, to the date of Pinkerton's offer of reinstatement, less his net earnings
during said period.16
Since it has been found that the evidence does not support the allegations
of the complaint that the International committed unfair labor practices, the
undersigned will recommend that the allegations of the complaint with respect
to the International be dismissed.
On the basis of the foregoing findings of fact and upon the entire. record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Pinkerton's National Detective Agency, Inc., is engaged in commerce , within
the meaning of Section 2 (6) and (7} of the Act.
11 See Chase National Bank, etc., 65 NLRB 827.
14 See Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corp. v. N. L. R. B.,
B11 U. S. 7.
. 15 Section 10 (c) of the Act provides that "back pay may be required of the employer
or labor organization , as the case may be , responsible for the discrimination . . . . " While
ib is true that the unlawful pressure exerted by the Organizing Committee on Pinkerton's
caused the latter to discriminate against the four complainants herein, there can be no
question that Pinkerton ' s must bear the primary responsibility for the overt , discrimina-
tory act , because, as employer , it alone had the power and authority to put it into
effect. Pinkerton 's, however , would not have committed the discriminatory act had it
not been for the pressure exerted upon it by the Organizing Committee . Under the
circumstances , both Pinkerton ' s and the Organizing Committee are responsible and should
be jointly and severally liable for whatever back pay due the four complainants.
PINKERTON'S, NATIONAL DETECTIVE AGENCY, INC. 235
2. International Longshoremen's and Warehousemen's Union, affiliated with
the Congress of Industrial Organizations, and Contract Guard's and Patrolmen's
Organizing Committee, affiliated with the International Longshoremen's and
Warehousemen's Union, are labor organizations, within the meaning of Section
2 (5) of the Act.
3. By discriminating as to the hire and tenure of employment and as to the
terms and conditions of employment of Thomas W. Stenhouse, John T. Con-
ners, Walter J. Slater, and Charles O. Holmes, thereby encouraging membership
in Contract Guard's and Patrolmen's Organizing Committee, Pinkerton's has en-
gaged in, and is engaging in, unfair labor practices, within the meaning of Sec-
tion8 (a)'(3).
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Pinkerton's has engaged in, and
is engaging in, unfair labor practices, within the meaning of the Act.
5. By causing Pinkerton's to discriminate against four of its employees in
violation of Section 8 (a) (3) of the Act, thereby restraining and coercing the
employees of Pinkerton's in the exercise of the rights guaranteed in Section 7
of the Act, Contract Guard's and Patrolmen's Organizing Committee, has violated
Section 8 (b) (2) and (b) (1) (A) of the Act.
6. By threatening, after June 15, 1948, the employees of Pinkerton's with loss
of their jobs if they failed and refused to maintain membership in good standing
in the Contract Guard's and Patrolmen's Organizing Committee, the Contract
Guard's and Patrolmen's Organizing Committee has violated 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.
S. International Longshoremen's and Warehousemen's Union, affiliated with
the Congress of Industrial Organizations, did not violate the Act as alleged in
the complaint.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends :
1. Pinkerton's National Detective Agency, Inc., San Francisco, California, its
officers, agents, successors, and assigns, shall:
(a) Cease and desist from encouraging membership in the Contract Guard's
and Patrolmen's Organizing Committee, affiliated with Longshoremen's and Ware-
housemen's Union, or in any other labor organization of its employees, by dis-
criminating in regard to their hire or tenure of employment, or as to the terms
and conditions of their employment, thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act ;
(b) Giving effect to the union-shop provisions contained in its contract with
Contract Guard's and Patrolmen's Organizing Committee dated August 1, 1946,
and in the "Return to Work Agreement" dated August 7, 1948, or to any exten-
sion, renewal, modification or supplement thereto, or to any superseding con-
tract which might interfere with, restrain, or coerce its employees in the exercise
of the rights guaranteed in Section 7 of the Act;
(c) Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act:
(1) Offer immediate employment as it water front guard to Thomas W. Sten-
house without prejudice to whatever seniority and other right and privileges he
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may have acquired had he been employed by Pinkerton's on and after July 23,
1948;
(2) Offer to John T. Conners, Walter J. Slater, and Charles O. Holmes im-
mediate and full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority and other rights and privileges in the
manner set forth in "The Remedy";
(3) Post in its offices in San Francisco, California, copies of the notice attached
hereto and marked Appendix A. Copies of the notice, to be furnished by the Re-
gional Director for the Twentieth Region, after being duly signed by Pinkerton's
representative, shall be posted by Pinkerton's immediately upon receipt thereof
and maintained by it for sixty (60) consecutive days thereafter, in conspicuous
places including all places where notices to its water front guards, patrolmen,
and other employees are customarily posted. Reasonable steps shall be taken
by Pinkerton's to insure that said notices are not altered, defaced, or covered
be any other material ;
(4) Notify the Regional Director for the Twentieth Region in writing within
twenty (20) days from the date of the receipt of this Intermediate Report, what
steps Pinkerton's has taken to comply therewith.
2. Contract Guard's and Patrolmen's Organizing Committee, affiliated with
International Longshoremen's and Warehousemen's Union, which in turn is af.
filiated with the Congress of Industrial Organizations, its officers, representa-
tives, and agents shall:
(a) Cease and desist from causing or attempting to cause Pinkerton's National
Detective Agency, Inc., or any other employer, to discriminate against its em-
ployees in violation of Section S (a) (3) of the Act, thereby restraining and.
coercing said employees in the exercise of the rights guaranteed in Section 7
of the Act ;
(b) Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(1) Post at its offices in San Francisco, California, copies of the notice at-
taehed hereto and marked Appendix B. Copies of the notice, to be furnished
by the Regional Director for the Twentieth Region, after being duly signed by
a duly authorized representative of the Organizing Committee, shall be posted
by the Organizing Committee immediately upon receipt thereof and maintained
by it for sixty (60) consecutive clays thereafter, in conspicuous places, including
all places where notices to its water front guards and patrolmen members are
customarily posted. Reasonable steps shall be taken by the Organizing Com-
mittee to insure that said notices are not altered, defaced, or covered by any
other material. Post, or offer to post, similar signed copies of said notice in
conspicuous places in the San Francisco, California, offices of Pinkerton's;
(2) Notify the Regional Director for the Twentieth Region in writing, within
twenty (20) days from the date of the receipt of the Intermediate Report, what
steps it has taken to comply therewith.
3. Pinkerton's National Detective Agency, Inc., its officers, agents, successors,
and assigns and Guard's and Patrolmen's Organizing Committee, affiliated with
the International Longshoremen's and Warehousemen's Union, its officers, repre-
sentatives, and agents , jointly and severally make whole Thomas W. Stenhouse,
John T. Conners, Walter J. Slater, and Charles O. Holmes for any loss of pay
they may have suffered because of the discrimination against them, by payment
to each of them of a sum of money in the manner set forth in "The Remedy."
It is further recommended that unless on or before twenty ( 20) days from the
receipt of this Intermediate Report, Pinkerton' s and the Organizing Committee
PINKERTON'S, NATIONAL DETECTIVE AGENCY, INC. 237
notified said Regional Director in writing that it will comply with the foregoing
recommendations, the National Labor Relations Board issue an order requiring
Pinkerton's and the Organizing Committee to take the action aforesaid.
It is further recommended that the complaint with respect to International
Longshoremen's and Warehousemen's Union be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 1S, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, -filed
with the Board, Washington 25, D: C., an original and six copies of a statement
in writing setting forth such exceptions to the Intermediate Report and Recom-
mended Order or to any other part of the record or proceeding (including rulings
upon all motions or objections) as he relies upon, together with the original and
six copies of a brief in support thereof ; and any party may, within the same
period, file an original and six copies of a brief in support of the Intermediate
Report and Recommended Order. Immediately upon the filing of such statement
of exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and briefs shall desig-
nate by precise citation the portions of the record relied upon and shall be
legibly printed or mimeographed, and if mimeographed shall be double spaced.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said Sec-
tion 203.46 should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten (10) days from
the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 18th day of May 1949.
Hi?`WARD MYERS,
Trial Exam-iner.
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 interfere with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of the Act, by discriminating
in regard to their hire or tenure of employment, or any term or condition
of employment, to encourage membership in any labor organization.
WE WILL OFFER to John T. Conners, Walter J. Slater, and Charles O.
Holmes immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination.
WE WILL OFFER immediate employment as a Water front guard to Thomas
W. Stenhouse and make him whole for any loss of pay as a result of the
discrimination in refusing to hire him on and after July 23, 1948.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of any labor organi-
zation. We will not discriminate in regard to hire or tenure of employment or
any term or condition of employment against any employee because of member-
ship in or activity on behalf of any labor organization.
PINKERTGN's NATIONAL DETECTIVE AGENCY, INC..
Employer.
B}'------------------------------------------------
(Representative) (Title)
Dated - ------- ------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
APPENDIX B
To ALL OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS OF CONTRACT GUARD'S
AND PATROLMEN'S ORGANIZING COMMITTEE
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:
WE WILL NOT cause, or attempt to cause, PINKERTON's NATIONAL DETECTIVE
AGENCY, I'NC., or any other employer, to discriminate in any manner against
its employees, in violation of Section 8 (a) (3) of the aforesaid Act.
WE WILL MAKE Thomas W. Stenhouse, john T. Couriers. Walter J. Slater,
and Charles O. Holmes whole for any loss of pay suffered as a result of
discrimination.
CONTRACT GUARD'S AND PATROLMEN'S ORGANIZING
COMMITTEE, AFFILIATED WITH INTERNATIONAL
LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION.
WHICH IN TURN IS AFFILIATED WITH CONGRESS
OF INDUSTRIAL ORGANIZATIONS.
By ---------------------------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.