Salmon Terminal Division

National Labor Relations Board - Board Decisions

Dec 13, 1977

233 N.L.R.B. 1178 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Olympic Steamship Co., Inc. d/b/a Salmon Terminal
Division and Zava Jane Brandon
International Longshoremen's and Warehousemen's
Union, Local No. 9 and Zava Jane Brandon. Cases
19-CA-8985 and 19-CB-2744
December 13, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On July 27, 1977, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the Respondent Union
filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge, to
modify the remedy so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977),' and to adopt his recom-
mended Order, as modified herein.
The Administrative Law Judge found the March 3,
1976,2 layoffs of Suzanne Godon and Denise Collier
were unlawful. Respondent Union asserts that these
layoffs cannot be found unlawful since they occurred
outside the 10(b) period. We agree with Respondent
Union's contention.3
Godon and Collier, who were B casual female
employees, were replaced by A seniority male
employees on March 3. The Administrative Law
Judge recommended that the Union be ordered to
make payment to Godon and Collier of the amount
they would have earned from March 9 (the beginning
of the 10(b) period with respect to Respondent
Union) to April 22, had they not been discriminated
against. He further recommended an Order requiring
the Union and the Company, jointly and severally, to
make such payment from April 22 (the beginning of
the 10(b) period with respect to Respondent Employ-
' See, generally, Isis Plumbing 6 Heating Co., 138 NLRB 716 (1962).
2 All dates are in 1976 unless otherwise indicated.
3 These employees were recalled and subsequently laid off on July 2,
within the 10(b) period. We agree with the Administrative Law Judge's
findings with respect to this layoff. Backpay for these employees begins as of
that date.
4 See Bowen Products Corporation, 113 NLRB 731 (1955). In support of
his position, the Administrative Law Judge analogized the action here to a
situation where a closed-shop provision, unlawful on its face, is executed
233 NLRB No. 169
er) to October 7. Thus, he found the layoffs unlawful
and recommended that these employees receive relief
even though the layoffs occurred 6 days prior to the
beginning of the 10(b) period applicable to the
charge against the Union. Although the unlawful
agreement which gave rise to the March 3 layoffs
continued during the 10(b) period, the March 3
action against Godon and Collier was complete at
that time. 4 Since it was complete, we are precluded
from finding the March 3 layoff unlawful. To hold
otherwise is to make a "finding of violation which is
inescapably grounded on events predating the
limitations period . . ." and "directly at odds with
the purposes of the 10(b) proviso."5
Accordingly, we shall modify the Administrative
Law Judge's recommended Order to require that the
Union and the Company jointly and severally make
payment to employees Godon and Collier of the
amount they normally would have earned from the
time of their subsequent layoff on July 2 until
October 7, had they not been unlawfully replaced by
A seniority men.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent Union, Interna-
tional Longshoremen's and Warehousemen's Union,
Local No. 9, its officers, agents, and representatives,
and the Respondent Employer, Olympic Steamship
Co., Inc. d/b/a Salmon Terminal Division, Seattle,
Washington, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph A,2(b):
"(b) Jointly and severally with Olympic Steamship
Co., Inc., d/b/a Salmon Terminal Division, make
whole Suzanne Godon and Denise Collier (Jackson)
for any loss of earnings they may have suffered as a
result of the discrimination against them from July 2
to October 7, 1976, in the manner prescribed in the
Remedy section of this Decision."
2. Substitute the following for paragraph B,2(b):
"(b) Jointly and severally with International
Longshoremen's and Warehousemen's Union, Local
No. 9, make whole Suzanne Godon and Denise
before the 10(b) period and maintained thereafter. The difficulty with that
analogy is that, in the closed-shop situation, the provision is being enforced
during the 10(b) period. However, as to the March 3 layoff, the action was
completed prior to the start of the period.
5 Local Lodge No. 1424. International Association of Machinists, et al.
[Bryan Mfg. Co.] v. N.LR.B., 362 U.S. 411, 422 (1960). See L B. Woods, L
J. Reischrnman, Dofflemeyer & G. W. Ewing, d/b/a Breckenridge Gasoline
Company, 127 NLRB 1462, 1464-65 (1960), and Indiana Head Hosiery
Company, Inc., 199 NLRB 488 (1972).
1178
SALMON TERMINAL DIVISION
Collier (Jackson) for any loss of earnings they may
have suffered as a result of the discrimination against
them from July 2 to October 7, 1976, in the manner
prescribed in the Remedy section of this Decision."
3. Substitute the attached notices for those of the
Administrative Law Judge.
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain or enforce a separate,
segregated seniority list for women employees.
WE WILL NOT maintain or enforce a seniority
list on which seniority women are placed near the
bottom without regard to length of service.
WE WILL NOT maintain or enforce a practice
pursuant to which casual women employees are
replaced by seniority men while seniority women
are not permitted to replace casual men.
WE WILL NOT threaten employees with expul-
sion from our union or loss of employment if they
file charges with a State Human Rights Commis-
sion or the National Labor Relations Board.
WE WILL NOT threaten employees with reprisals
if they refuse to withdraw charges against our
Union.
WE WILL NOT in any manner restrain or coerce
employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
WE WILL, for the period March 9, 1976, to
April 22, 1976, and jointly and severally with
Olympic Steamship Co., Inc., d/b/a Salmon
Terminal Division, for the period April 22, 1976,
to January 6, 1977, make whole Zava Jane
Brandon (Duchsheren), Geraldine Shattuck, Pat-
sy Zuchowski, Anna Lee Ancheta, and Roxanne
Moshier (Yuhase) by paying them backpay, plus
interest.
WE WILL, jointly and severally with said
Company, for the period July 2, 1976, to October
7, 1976, make whole Suzanne Godon and Denise
Collier (Jackson) by paying them backpay, plus
interest.
INTERNATIONAL
LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION,
LOCAL No. 9
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT participate or acquiesce in the
maintenance or enforcement by International
Longshoremen's and Warehousemen's Union,
Local No. 9, of a separate, segregated seniority
list for women employees.
WE WILL NOT participate or acquiesce in the
maintenance or enforcement by said Union of a
seniority list on which seniority women are placed
near the bottom without regard to length of
employment.
WE WILL NOT participate or acquiesce in the
maintenance or enforcement by said Union of a
practice pursuant to which casual women employ-
ees are replaced by seniority men while seniority
women are not permitted to replace casual men.
WE WILL NOT in any manner interfere with,
restrain, or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL, jointly and severally with Interna-
tional Longshoremen's and Warehousemen's
Union, Local No. 9, for the period April 22, 1976,
to January 6, 1977, make whole Zava Jane
Brandon (Duchsheren), Geraldine Shattuck, Pat-
sy Zuchowski, Anna Lee Ancheta, and Roxanne
Moshier (Yuhase) by paying them backpay, plus
interest.
WE WILL, jointly and severally with said Union,
for the period July 2, 1976, to October 7, 1976,
make whole Suzanne Godon and Denise Collier
(Jackson) by paying them backpay, plus interest.
OLYMPIC STEAMSHIP Co.,
INC. D/B/A SALMON
TERMINAL DIVISION
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard at Seattle, Washington, on February 24 and
25, March 1, and April 4 and 5, 1977. The charge in Case
19-CB-2744 was filed on September 7, 1976, by Zava Jane
Brandon (Duchsheren),' an individual. A copy of that
charge was served by registered mail on September 9,
1976.2 A complaint issued on that charge on October 29,
1976. The charge in Case 19-CA-8985 was filed on
October 22, 1976, by the same Charging Party and that
charge was served by registered mail on the same date. An
All names in parentheses reflect a recent change in mantal status.
2 Pursuant to Sec. 102.113(a) of the Board's Rules and Regulations, the
date of service, when registered mail is used. is the day of mailing.
1179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order consolidating the two cases and an amended
consolidated complaint issued on December 3, 1976,
alleging that Olympic Steamship Co., Inc. d/b/a Salmon
Terminal Division, herein called the Company, violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, and that International Longshoremen's
and Warehousemen's Union, Local No. 9, herein called the
Union, violated Section 8(b)(1)(A) and (2) of the Act.
Issues
The primary issues are:
1. Whether the Union violated Section 8(b1)1XA) and
(2) of the Act by failing in its duty to fairly represent
employees of the Company by maintaining, enforcing, and
applying seniority lists in such a manner as to cause
discrimination against female employees because of their
sex.
2. Whether the Company violated Section 8(a)(l) and
(3) of the Act by participating and acquiescing in the
Union's conduct.
3. Whether the Union violated Section 8(b)(1)(A) of the
Act by threatening to expel employees from the Union and
have them fired if they filed charges with the Board and
civil rights agencies, and thereafter threatened employees
with reprisals if they did not withdraw such charges.
All parties were given full opportunity to participate, to
produce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs and
supplemental briefs which have been carefully considered
were filed on behalf of the General Counsel, the Company,
and the Union.
Upon the entire record of the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, a Washington State corporation with an
office and place of business in Seattle, Washington, is
engaged in the business of warehousing, labeling, and
shipping canned seafood. During the past year, the
Company labeled and shipped from its Seattle facility
finished products valued in excess of $50,000 to points
outside the State of Washington. The complaint alleges, the
amended answers admit, and I find that the Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
I Employees were considered casual until they were on the payroll for 45
consecutive days, at which time they obtained seniority.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
1. Background-the origin of the seniority lists
The Company operates a container freight station and a
warehouse where it stores, labels, and distributes canned
seafood according to the wishes of owners of the cans.
Before October 1973, the Company did no labeling. The
labeling of cans stored in the Company's warehouse was
done by another concern, the Puckett Company. Puckett
leased space from the Company in the Company's
warehouse and performed the labeling operation by
machine and hand-labeling. The Company and Puckett
each had separate collective-bargaining agreements with
the Union. At that time, the Company employed approxi-
mately 17 seniority employees in its warehousing opera-
tion.3 The employees, all of whom were male, were on a
single seniority list. Puckett maintained two seniority lists;
one was class B, which consisted only of females and
involved hand-labeling and related work. The other was
class A, which was composed only of males and involved
other types of work. The contract provided for higher rates
of pay for class A employees.
Because of financial difficulties, Puckett discontinued its
operations in September 1973, at which time the Company
purchased Puckett's equipment. In October 1973 the
Company began a labeling operation of its own. The
Company asked the Union to send employees to staff the
new operation. The Union sent, and the Company hired,
substantially all of the employees who had worked for
Puckett. Those consisted of some 40 male employees who
had worked for Puckett in a class A seniority status and
some 3 female employees who had worked for Puckett as
class B seniority workers. The Company gave all of the new
employees a seniority date of October 1, 1973, and asked
the Union to provide it with a list of the seniority standings
of the new employees as among themselves. The Union
furnished the Company with a seniority list for the men
and a separate seniority list for the women.4 All of the new
men were placed on the company seniority list below the
17 men the Company had already in its employ. The new
male employees were given seniority standing among
themselves based on the length of time they had worked for
Puckett. With the beginning of the labeling operation, the
Company instituted two separate seniority lists. All of the
men were placed on an A seniority list. The A work was
divided into skilled and unskilled categories with different
rates of pay. The skilled work included forklift operators,
machine operators, labeling machine operators, and label-
ing machine maintenance men. The nonskilled A work
included general warehousemen who loaded railcars,
loaded containers, sorted, stockpiled, swept, and did
general warehouse work. The women were put on a B
seniority list. B work consisted of placing small cans of fish
in paper sleeves, stripping labels off cans, hand-pasting
labels on cans, code manifesting, mirror inspection, and
some stenciling.
4 The women were Zava Jane Brandon, Anna Ancheta, and Anita
Jeanette Watkins.
1180
SALMON TERMINAL DIVISION
Before the Company commenced its labeling operation,
it had not done the type of work performed by B seniority
employees. The Company and the Union therefore negoti-
ated a new wage scale for the women.
There can be little doubt that the women were placed on
a separate B seniority list because they were women and
not because each as individuals could not do A work. As is
set forth below, the Union always insisted that the women
be considered as a group and not as individuals whose
specific abilities had to be considered. Also as is set forth in
detail below, the women currently are on a single list with
the men and in fact do perform A work.5 The Company
and the Union agreed on a wage scale for the women and,
in an appendix to a contract, provided that effective June
1, 1974, the women would be paid a new rate. The heading
for that section of the contract was "Women Wage Scale."
That hourly rate was less than for any of the other
categories set forth in the contract, all of which applied to
work that women could not aspire to. The contract
language applied not only to persons then employed but
also to future hires. It was therefore clearly the intention as
well as the practice of the Company and the Union to give
new seniority female employees only B work.6
Thereafter substantially all new casual A workers were
obtained from the union hall and substantially all new
casual B workers were hired without referral from the hall.
The A seniority list was used to determine layoff and
recall for A work and the B seniority list was used to
determine layoff and recall for B work.
The men continued to do the A work and the women the
B work until the fall of 1974, when a new sleeving machine
was installed.
2. The sleeving machine incident and the transfer
of the women to a single feathered-in list
The bulk of the women's work consisted of hand-
labeling. Machine work was A work and women were not
allowed to perform it. One of the Company's customers
owned a sleeving machine and in early fall of 1974 that
customer asked the Company to install and use the
machine. The Company agreed to do so. When the women
learned of the proposed installation of that machine, they
were concerned that they would have no work to do. In
early September 1974 one of the women employees, Zava
Jane Brandon, asked Company Manager Ralph J. Staehli
what would happen when the sleeving machine became
operative. Staehli said that the women could work on the
machine and, as far as he was concerned, they could
receive A pay for that work.
5 Except for the periods discussed below where the women went on the A
list (or more accurately, went onto a single list with the men), A work was
performed by women only on rare occasions when a casual employee was
sent from the hall for a short period of time. Such casual workers never
achieved A seniority.
I Ralph Staehli, the Company's manager, testified that after the
Company began its new operation it maintained an A list for general
warehouse work and a B list for people who did not want to do heavy work.
He averred that as a rule of thumb no one on the B list had to lift more than
30 pounds. The Company and the Union may have intended to protect
women by preventing them from doing heavy work. However, men with
physical infirmities were permitted to do A work and were not allowed to do
B work. On the other hand, there was no evaluation whether any individual
On about October 16, 1974, the women 7 were assigned to
the sleeving machine. Some of the men on the A list
complained about the women doing A work. Shop
committee members Harold Williams and Bob Hilstad8
told the women to get their asses off the machine because
the women were B workers and the machine was A work.
Eugene C. Hutcheson, who at the time was vice president
of the Union and acting business agent, held a meeting of
the labor relations committee to discuss the matter. The
women were present at that meeting. The minutes of the
meeting show not only what occurred concerning the
sleeving machine, but also indicate that as of that time
women had not been allowed to do A work. In addition
they show the Company's attitude toward the seniority
issue. The minutes read:
SALMON TERMINAL/LOCAL 9 LABOR RELATIONS
COMIITTEE
10:00 A.M.
ILWU Local 9
Robert Hilstad
Harold Williams
Fred Stern
Eugene Hutcheson
October 16, 1974
Salmon Terminals
Ralph Staehli
The New Sleeving Machine
The Union stated this is a machine, that it is taking
the place of handwork, and that a labeling machine will
probably be connected to it. This constitutes "A" rate
of pay.
The Company agreed to this being a machine, and
that it would be operated at "A" rate of pay.
Women working the new Sleeving Machine
The Union said the only way women could work on
the machines, or do "A" work, is to be added to the
same seniority list as the men. They would have to be
added in their proper place, according to the way they
were hired and attained seniority. This would mean one
seniority list. When employees work "A" classification,
they are paid at the "A" wage rate. When they work
"B" classification, they are paid at the "B" wage rate.
The Union told the Company the Committee and
Acting Business Agent had met with the seniority
women and presented them with the following propo-
sals:
woman was capable of doing the A work and they were treated as a class.
namely, women.
I At that time they were Brandon, Ancheta, Watkins, and Connie
Rasmussen.
8 The shop committee consisted of the union representatives on the labor
relations committee. The labor relations committee consisted of both union
and management representatives, but the witnesses oflen used the term
"labor relations committee" when they were referring to the shop
committee. Counsel for the Union admitted, and I find, that the shop
committee is authorized to act with respect to hearing employee complaints,
to attempt to negotiate resolution of complaints with management, and to
participate in negotiations of labor agreements.
1181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(I) Women do the same work they have been doing,
according to past practice.
(2) Women be put on the same seniority list as the men.
Are considered employees the same as the men
even on layoff, according to the seniority list.
The Union stated the women choose to accept the
number 2 proposal. Non-discriminatory between "A"
and "B" work.
Company stated they would agree to either proposal.
They feel it is a union problem.
Minutes submitted by,
/s/ Eugene C. Hutcheson
Eugene C. Hutcheson
Acting Business Agent
In the course of that meeting, Hutcheson said that in
order for the women to run the sleeving machine they
would have to go on the A list, and otherwise they would
go out the door. Brandon asked whether that meant they
would be fired and Hutcheson replied that he could not put
it in that many words but they would be out the door. 9 The
women took a vote among themselves and all but Brandon
voted to go on the A list. Brandon told the group that she
had been told by several of the male members how the
women would be treated if they were on the A list and that
she herself did not want any part of it.
The Union and the Company agreed in substance that
the B seniority list was to be abolished and that a single list
(still referred to by the parties as the A list) would be
maintained, on which the women would be feathered in
based on their seniority. 10 Though there was only to be one
seniority list the distinction between A and B work was to
continue and B work was to receive a lesser rate of pay. To
the extent that there was B work, it was to be done by
volunteers, and if there were not enough volunteers,
employees were to be assigned to B work based on inverse
seniority on the single seniority list.
The sleeving machine was only used for several weeks. It
was found to be impractical. After that trial period it was
abandoned and the hand-sleeving operation was resumed.
However, the single seniority list was maintained and the B
work was performed by volunteers and those assigned by
inverse seniority. That system was followed until about
early July 1975 when, under the circumstances described
below, the women were taken off the A list and placed on a
B list and the procedure which had been followed prior to
the sleeving machine incident was resumed.
I This finding is based on the credited testimony of Brandon. Hutcheson
averred that he did not recall saying anything about the women being out
the door but that he did say there would be less work because most of the
work was sleeving.
10 The women listed on the new feathered-in seniority list were Zava
Jane Brandon, Anna Ancheta, Jeanette Watkins, and Connie Rasmussen.
Patsy Zuchowski and Geraldine Shattuck attained A seniority while that list
was still in existence.
I" Thacker was a first-line foreman who had authority to shift employees
from job to job. The basic work assignments were made by higher authority.
3. The treatment of the women when they were
on the A seniority list and their return to the B
list
From October 16, 1974, through June 30, 1975, the
women were on the feathered-in seniority list. However,
during that time they had trouble of a different nature.
When the women were doing A work they were put on a
crew with men from the A list. A crew consisted of a
machine operator and four other employees. Ordinarily,
when a new employee joined a crew the other crew
members showed the new employee how to do the work.
That was not done for the women. Normally the crew
helped a new crew member but, when the new crew
member was a woman, the rest of the crew stacked up the
work for her so that it would be more difficult for her to do.
Normally when any crew member fell behind in the work,
the rest of the crew would help out. They did not do it for
the women. Instead the women were continually told to get
the work done or go out the door. The women were often
put on the most difficult tasks. Employee Patsy Zuchowski
complained to Supervisor Dale Thacker" that the men
would not help the women and that the women were put on
the harder work. She also discussed it with shop committee
member Al Fatland. Nothing was done to alleviate the
situation.
A more serious form of harassment was directed against
employee Anna Lee Ancheta. Ancheta is a small, frail
woman who has serious health problems. She was assigned
to the job of lifting heavy cartons of cans. Some of them
had to be lifted 3 feet over her head. On February 27, 1975,
while doing that work, she injured her shoulder and was off
for a week. She returned with instructions from her doctor
that she was to do no heavy lifting or pulling. Although she
notified Supervisor Dale Thacker of the situation, she was
put back doing the same work. Thacker told her that the
women voted for the A work and if they could not handle it
they could go out the door. She asked whether she could be
put on lighter work until her shoulder was better. He said
that she could not and that there was no other work
available. She complained to shop committeeman Al
Fatland and told him that she had a doctor's slip saying
that she was not to lift anything heavy until her shoulder
was well. Fatland told her that the girls had voted for it and
if they could not handle it to go out the door. Ancheta
worked for a few days and then was reinjured. Once again
she was out for a week. For a second time she complained
to Thacker and was again told that if she could not handle
it to go out the door. She explained to him that her
shoulder was giving her problems and she was having heat
and cortisone treatment. Thacker repeated what he had
said previously.12 Company Manager Ralph Staehli testi-
fied that the Company and the Union take into consider-
The Company admits, and I find, that Thacker was a supervisor within the
meaning of the Act. Thacker was a union member and sometimes attended
union meetings.
12 These findings are based on the credited testimony of Ancheta.
Thacker, in his testimony, acknowledged that he sometimes shifts employees
from job to job when they have physical difficulties such as their fingers
getting sore while packing cans. He denied, however, that the women were
given harder work than the men or that he kept the women on difficult jobs
for longer periods than he would have the men. I do not credit Thacker with
regard to his assertion that he treated the women the same as the men.
1182
SALMON TERMINAL DIVISION
ation the physical incapacities of employees to do particu-
lar types of work in deciding what work to give them. For
example, there are deaf-mutes who work for the Company
who are not allowed to operate forklifts. Other employees
do not have the reach in their fingers to grasp tall cans for
packing and such employees are put on other work where
they are of more use to the Company. However, such
considerations were not used with regard to Ancheta's
work assignments. Her treatment can only be described as
harassment. Ancheta saw other people with lower seniority
doing lighter and easier work. She saw other employees
being switched around from job to job. She saw one
employee, Jack Godfrey, replaced when he was packing
cans because his fingers were short and he could not pick
them up. She knew that Burt Crater, who had a crippled
hand and could not pick up certain types of cans, was
always given different work.
The disparate treatment against women was also shown
by the treatment of Zava Jane Brandon. In March 1975,
after 3 weeks' work on a particularly difficult assignment,
Brandon sustained a back injury.' 3 She was required to lift
63-pound, 8-ounce cartons of cans (called 48 talls). Only
occasionally was she switched to lighter cartons called 72
halves. She was assigned to a five-person crew. The other
crew members were switched from job to job during the 3
weeks, but she was left to lift the heavy cartons. After she
was injured in March 1975, Al Fatland gave Brandon a
workmen's compensation form. At that time she told
Fatland that she did not think it was fair that she was left
on the difficult work when her crew had been rotated.
However, Brandon did not complain further because she
had been told by Supervisor Dale Thacker, Union Vice
President Hutcheson, and shop committeemen Al Fatland
and Bob Hilstad that if she threw up any arguments or
complaints she would be out the door and that she could
not complain about any job that she was given when she
was put on the A list. Al Fatland told her that they had put
her on the 48 talls to try to disable her and get rid of her.
On another occasion, Al Fatland told her that she and
Ancheta were being treated unfairly and that for their own
safety it would be best if they went back to the B list.
The women discussed their treatment among themselves
and with a number of the male employees. Zuchowski,
Brandon, and Ancheta told male employee Finnegan that
they felt they were being punished, that they were given the
hardest jobs, and that they were made to do extra work.
Finnegan agreed with them and said that he felt they were
being treated wrong and that he would see what he could
do. After Brandon and Ancheta were hurt, Zuchowski
spoke to Finnegan again and said that they did not see how
they could keep working when they were getting hurt one
at a time. She said that she felt it was only a matter of time
before she and Shattuck also were hurt and out of a job.
Finnegan told her there would probably be a vote to see
whether the women should go back to the B list.
A few days before the women went back on the B list,
Company Manager Staehli told Brandon that he would
13 Brandon was out of work for about 7 weeks.
14 The names on that list were Brandon, Ancheta, Watkins, Zuchowski,
and Shattuck. Roxanne Moshier (Yuhase) achieved B seniority status on
about December 15, 1975. Before then she had performed some A work
prefer the women to go back on the B list because the men
were doing that work poorly. Brandon told him that the
way things were going with the women being hurt and the
treatment they were getting it would be better for everyone
concerned if they went back on the B list.
In summary, when the women were placed on the A list
after the sleeving machine incident, they were subjected to
serious harassment and two of the women were in fact
injured. Some of the harassment came from fellow male
employees and some from discriminatorily harsh assign-
ments. Supervisor Thacker and shop committeeman Al
Fatland had direct knowledge of what was going on but the
harassment continued. Even in the absence of direct
knowledge, the harassment was so open and notorious that
both the Company and the Union must have known of it.
The facts set forth above establish that, at the very least,
both the Company and the Union condoned that harass-
ment.
After the two women were injured, the women discussed
their predicament among themselves and, in the words of
employee Ancheta, they decided that it might be best for
them to go back on the B list until they could get their
bodies back together again.
In early July 1975 Business Agent Bukoskey held a
meeting of the Company's employees to determine whether
the women should go back on the B list. Some 60
employees were present, including 6 women. The employ-
ees voted by a 3-to-I margin that the women go back on
the B list. Thereafter the Union proposed to the Company
that the women be placed back on the B list and the
Company agreed. The Union then drafted a new B
seniority list.14
4. The bumping of B casual women by A
seniority men
Before the sleeving machine incident, when separate A
and B seniority lists were maintained, there was no
interchange of employees between the two lists. When
there was A work but no B work, the A employees
continued to work while the B workers were laid off.
Conversely, when there was B work but no A work, the B
workers continued to work while the A workers were laid
off. That applied to both casuals and seniority employees.
After July 1975, when the separate lists were reinstituted,
the procedure was changed so that A seniority employees
who were about to be laid off because of lack of A work
were permitted to cross over and perform B work that had
been done by B casuals. However, the Union consistently
refused to allow B seniority employees who were about to
be laid off because of an absence of B work to cross over
and do the work of A casuals.
The situation first arose on March 3, 1976. On that date a
number of A seniority men were scheduled to be laid off
because of a lack of A work. At the same time there was
enough B work for the B seniority women and also for two
B casual women, Suzanne Godon and Denise Collier
(Jackson).
through referral from the union hall as an A casual. The remainder of her
casual work prior to obtaining senionrity was B work. Watkins left the
Company's employ in November 1975.
1183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly before Godon and Collier were laid off on March
3, 1976, shop committee member Al Fatland told Supervi-
sor Thacker that casual B workers had to be laid off so that
seniority men could do the work. Thacker said that he
disagreed, that B work was B work, and that he would not
do it. Fatland replied that the union members had held a
meeting and that Thacker had to do it. Later Al Fatland
and Union Business Agent Bukoskey approached Compa-
ny Manager Staehli and suggested that A seniority
employees replace B casuals. The union representatives did
not suggest that B seniority workers have the right to bump
A casuals when the B seniority workers faced layoff.
On March 3, 1976, Thacker laid off Collier and Godon.' 5
The A seniority men then performed the B casual work for
about a week.
The women were quick to protest the new practice.
When Godon and Collier were laid off, Thacker told them
that A work was getting slack, that A seniority men were
complaining about being laid off, and that, rather than
laying off the A seniority men, those men were going to
replace the B casuals. Godon asked Thacker why the A
casual men were not laid off to allow the B seniority
women to work when there was not enough B work.
Thacker replied that he was sorry, that it was out of his
hands, and that the shop committee had told him that that
was the way it was going to be done. Some of the B
seniority women, including Zuchowski and Brandon, spoke
to shop committeeman Al Fatland about the matter. They
asked him why the B casuals were being laid off when it
had never been done before. He replied that the men did
not feel that it was right to be laid off when the B casuals
were working. When the women said that it was not fair,
Fatland replied that the men were book members and they
had the right to work over casuals. Fatland said, "Let's
take care of our people first, our Union brothers."
On a number of occasions between March 3, 1975, and
October 7, 1976, the women spoke to the shop committee
members, Union Business Agent Bukoskey, Union Busi-
ness Agent Frith (who became business agent the last week
of June 1976), and Supervisor Thacker about the matter.
The women consistently took the position that it was unfair
for A seniority men to do the work of B casual women
when the B seniority women were not allowed to do A
casual work when they (the B seniority women) faced
layoff and A casual men were working. The Company and
union representatives consistently told the women that the
B seniority women had given up A work and would not be
allowed to do that work.s6
In mid-May 1976 the Company received a rush order
involving B work. Zuchowski asked Thacker whether
casual B workers would be recalled and Thacker said he
thought they would. Later that day Thacker told Zuchow-
ski and Shattuck that the shop committee would not let
him call back the casual women and that he would have to
let the men do the work. Thereafter, for about a week, A
seniority men performed work that would have otherwise
been done by B casual employees.
15 Thacker told Godon that she was fired. However, as Godon credibly
testified, that was a term that Thacker ordinarily used when employees were
to be laid off.
16 Union Business Agent Bukoskey testified that he personally felt that
During the time the men were doing that work, Brandon
and some of the other women spoke to Thacker. Brandon
asked Thacker why it was that men could do B work when
A work was slack but women could not do A work when B
work was slack. Thacker replied that that was the way it
had to be, that the committee said so, and that the women
had given up the A work.
Zuchowski, in the presence of some of the other women,
asked Al Fatland, with other committee members present,
whether the B seniority women would have the same right
to replace A casuals if the reverse situation came up.
Fatland said that it could not be done, that the women had
voted to go back to the B list, and that's where they were
going to stay. Zuchowski said that it was not fair and
Fatland said, that fair or not, that was the way it was.
Zuchowski commented on Fatland's previous remark
about taking care of their union brothers first and Fatland
called her a goddamned troublemaker. Brandon, who was
also present, told Fatland that the women were not being
treated fairly and that they had enough to go to the Human
Rights Commission and the NLRB.
Godon was recalled to work about the last of June or
July i, 1976. Collier was also working at that time. They
were laid off once again on July 2, 1976, and on that date A
seniority men came over and performed B work that would
have been done by B casuals. 17
The issue was raised again on July 23, 1976, when
Zuchowski, Brandon, and some of the other women met
with Al Fatland and the rest of the shop committee.
Brandon said that she had heard that the B seniority
women were being laid off and she asked whether she
would be able to go over and do the A casual work rather
than take the layoff. Al Fatland said that she could not.
Brandon replied that she was a book member and had
seniority, and that she should have the right to go over and
do A casual work. Al Fatland again said that the women
had voted for the B list and that they would not do any A
casual work.
After the July 23, 1976, meeting Brandon asked Supervi-
sor Thacker whether Thacker had talked to anyone about
women doing some A work. Thacker said that he had not
and that the Union had control over it.
On August 16, 1976, Zuchowski and Shattuck spoke to
Business Agent Frith. The women asked him if he had
talked to Staehli about the women doing A casual work
rather than being laid off. He said he would talk to Staehli.
A few days later the same women talked to Frith again.
They asked him whether he had talked to Staehli about
their problem and Frith replied, "What problem?"
5. The attempts of the women to return to the A
list, their placement near the bottom of that list,
the final feathered-in list, and the alleged threats
Frith became the Union's business agent during the last
week of June 1976. Sometime between then and July 9,
1976, he held a meeting of the Company's employees. The
shop committee, consisting of Al Fatland, Dale Fatland,
the B seniority women should take precedence over A casual men but that
he did not want to "degrade" his committee.
I7 Godon has not worked since July 2, 1976.
1184
SALMON TERMINAL DIVISION
and Bob Hilstad, were present as were a large number of
employees, including female employees Brandon, Shattuck,
Moshier, and Zuchowski. Frith said that he had called the
meeting because Roxanne Moshier had said she wanted to
do A work and had been refused. Frith asked the women
whether they liked their jobs, the money they made, and
being in the Union. The women answered that they did,
and Frith then said that all the women had to agree to go
on the A list or no one could. They asked whether they
would be treated fairly and he said he could not make any
guarantees. Zuchowski said that there would be no point in
going on the A list if they were going to get hurt and be out
of work. She also said she felt it was her turn to be injured
next. Roxanne Moshier said that she wanted to be on the A
list. Frith replied that he could not do it and that they
would all have to agree. He said that he could not put one
on the A list and leave the others on the B list. Some of the
women said that it would be all right with them if Moshier
went on the A list and Frith repeated that he could not do
it unless all the women agreed to go on the A list.
Zuchowski complained that it was unfair that the men
could do the women's work while the women were not
allowed to do A work. At that point Al Fatland said that
that was the way it was going to be whether they liked it or
not. Frith told them that they should not go at each other
with bats and clubs, and Fatland replied that if he had a
bat he would bash somebody's brains out. Frith then told
the women to get together and discuss what they wanted.
The following day Brandon called Frith and asked
whether he could guarantee them fair treatment if they
went on the A list. Frith replied that he could not
guarantee something like that. Brandon then said that they
had decided to stay on the B list.
Shortly thereafter the women decided to take the matter
up with Company Manager Staehli. Brandon arranged for
a meeting through Mel Norris, a supervisor in Staehli's
office. She notified Al Fatland that a meeting was
scheduled. Before the meeting could take place, Fatland
spoke to Brandon in the presence of Shattuck and
Zuchowski. Fatland told Brandon that the women could
not meet with management and that if they went ahead
and tried to do so he would have them thrown out of the
Union and fired off the job. She replied that she had tried
to go through the grievance committee and had gotten
nowhere. He repeated that she had better not meet with
Staehli and told her to cancel the meeting. She did cancel
the meeting. Brandon continued the conversation with
Fatland.'8 Brandon told Fatland that the women were
going to the State Human Rights Commission or the
NLRB if he and the Union were not willing to help them.
Fatland said, "You try something like that and your asses
will be thrown out of the Union and fired off the job ...
you don't pull that shit down here."
During the first week in August 1976 Brandon once
again spoke to shop committeeman Al Fatland. Bob
Hilstad was also present. Brandon told Fatland that the
women were contemplating filing charges against the
Union and the Company. Fatland once again told her that
is Brandon was not certain whether Shattuck and Zuchowski were
present during this part of the conversation.
he would have her ass thrown out of the Union and off the
job if she or any of the other women tried to do that.
On about August 31, 1976, Ancheta spoke to Business
Agent Frith at the union hall. Bukoskey was also present.
Ancheta was on layoff at the time. She asked whether there
was any work at the Company and they replied that if she
wanted to work she could put her name on the referral
board. She said: "I don't think it's fair that you have
casuals working at the Salmon Terminal when I'm on the
seniority list. And, I'm expected, as a woman, to go down
and put my name on the peg board to be sent back to the
same company where I'm holding my seniority." Bukoskey
replied: "The men have already voted to not let you
women back on the seniority list, the A seniority list." She
replied that there were casuals working at the Company
and it was unfair that she was on layoff when she had
seniority. She also said that it was discriminatory to have
an A and a B list. Bukoskey asked her where she got that
idea and she replied that they would file a discrimination
complaint if they were not in their proper place on the
seniority list.
On September 2, 1976, Brandon again told Hilstad and
Al Fatland that if the Union was not going to do anything
to help the women they were going to file charges with the
Human Rights Commission. Hilstad said that there was no
way that the women were going to do something like that.
That afternoon, charges were filed with the Human Rights
Commission.
On September 7, 1976, Brandon filed a charge in Case
19-CB-2744 alleging sex discrimination against the wom-
en.
On September 21, 1976, Business Agent Frith held a
meeting of the Company's employees. All the women
except for Brandon were on layoff and she was the only
female in attendance. There were about 45 people at the
meeting. Frith said that he had been advised by the
International to put the women back on the A list and that
he was there to have them vote on the matter. He also said
that he did not know what the women wanted. One of the
employees, Pete Williams, said that if the women did go
back on the A list he did not want them feathered in. He
said that they should be put on the bottom of the list. Frith
called for a vote in which the only issue was whether the
women should be placed near the bottom of the seniority
list above three men who had attained seniority after the
charge was filed. There was a secret ballot in which the
employees voted 3 to I against the women going on the A
list.' 9
After the September 21, 1976, meeting at which the
employees voted to keep the women off the A list, Frith
received contrary orders from the International. He was
instructed to place the women near the bottom of the A
seniority list, above the three men who had achieved
seniority after the charge was filed.
Frith called a meeting of the women on about September
30, 1976. Brandon, Ancheta, Zuchowski, and Shattuck
attended that meeting. Frith told the women that the
matter had been blown up out of proportion and that he
wanted to know what the women desired. He said he was
19 As of the September 21, 1976, meeting the B seniority women were
Brandon, Ancheta, Zuchowski, Shattuck, and Moshier.
1185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
willing to put them near the bottom of the A seniority list
above the three men who had obtained seniority after the
charge was filed. Frith also asked why the women had not
gone through proper channels. Brandon said they did go
through proper channels and that all they got was a "screw
you, girls." Zuchowski, Shattuck, and Ancheta agreed to go
near the bottom of the A list but Brandon insisted that they
be feathered in. Frith said that he could not feather the
women in until the court settled the matter. He also said
that the women would be put near the bottom of the A
seniority list above the last three men, that they would be
put in their rightful places as soon as it could be negotiated
with the unit, and that he would take the matter up with
Company Manager Staehli.
On October 7, 1976, Frith held another meeting of the
Company's employees. He told the employees that the
International had instructed him to put the women on the
A list. Employee Jim McGibbon made a motion to fire all
the women and Frith told him to shut up. Frith also said
that if McGibbon wanted the women fired he should have
done that before, that it was too late now. A vote was taken
and it was decided to place the women near the bottom of
the A list above the three men who had achieved seniority
after the charge was filed.
Later that day Frith, together with his shop committee,
met with Company Manager Staehli. They discussed the
charges against the Company and the Union, and agreed
that the B list would have to be eliminated and all
employees combined on one seniority list. They also agreed
that when B work arose they would call for volunteers and
that, if there were not enough volunteers, employees would
be assigned to do B work in inverse order of seniority.
Staehli asked Frith to prepare a new seniority list and to
send it to him.
On October 8, 1976, Anna Ancheta spoke to Frith on the
telephone. She told him she understood that the women
would be returning from layoff on October 12. Frith
replied that the girls would not be returning and that the
case was more serious than he thought. He said that he had
understood the women only wanted their jobs back and
now he heard they wanted more. He also said that he had
been instructed by the International attorney from San
Francisco to sit on the matter and not to act on putting the
women back to work until further notice. He told Ancheta
that the men would not like being assessed and that the
Union did not have that kind of money.
A few days later Ancheta spoke to Frith on the telephone
again. Frith accused her of giving a false statement to the
NLRB. He said that he had written a letter to Staehli
saying that the women would be on the A list after the last
three men hired. She asked what he thought the court was
going to say about that and he replied that the court could
not tell the membership what to do and that he could not
dictate to the rank-and-file.
Frith prepared a letter dated October 8, 1976, referring to
the conversation the previous day between the Company
and the Union about the elimination of the B seniority list.
The letter stated that a new seniority list was effective
immediately. The new list, dated October 7, 1976, was
20 This finding is based on the credited testimony of Zuchowski. Frith, in
his testimony, acknowledged asking the women to sign a letter dropping the
charges but, in substance, he denied making any threat. I credit Zuchowski.
annexed and both the letter and the list were delivered to
Staehli on October 12. The new list placed the women
(Brandon, Ancheta, Zuchowski, Shattuck, and Moshier)
near the bottom of the list above the last three men who
had achieved seniority. That seniority list did not appear
correct to Staehli so he had his own seniority list, dated
October 7, 1976, prepared. That list showed the seniority
dates of the employees. However, that list also placed the
five women near the bottom. Four employees who had
achieved seniority after the charge was filed were listed
below the women. Staehli attached that list to a memoran-
dum to his foremen and told the foremen to hire seniority
people as they appeared on the list and to discharge
enough casuals to make room for them.
On October 13, 1976, the seniority women were called
back from layoff. On October 15 Frith had a conversation
with Brandon, Ancheta, Shattuck, and Zuchowski. Frith
asked what the women wanted and they replied that they
wanted to be feathered into the A list. Frith asked them to
sign a paper dropping all charges against the Union and
they replied that they would not do so without seeing their
lawyer. Frith said that if they did not sign the paper each
member would be assessed $20 for a lawyer's fee for the
International. Shattuck asked why Frith was trying to
make them feel guilty and Frith replied that he was not
trying to make them feel guilty but that he did not think it
was right for the members to be assessed and the members
would be damn mad if they were. He said the International
would have to tell the men that the women were going to
be feathered in because he did not have the power'to do it
and the whole lid would blow off the Company. Frith also
said that he wanted to know the women's answer soon
because he had to call the International. Brandon and
Ancheta then returned to work and the conversation was
continued between Zuchowski, Shattuck, and Frith. Frith
said the longshoremen would not like being assessed for
discrimination charges and Zuchowski replied that they
would not know who was involved. Frith replied that he
would have to let them know through a letter and they
would not like it a bit. Shattuck then said, "You mean our
lives could be in danger?" Frith replied, "Well, you know
the longshoremen." 20
By letter dated November 8, 1976, the Company's
attorney notified the Union's attorney that the Company
would not accept the Union's October 7, 1976, seniority
list. After mentioning the charges against the Company
and the Union, the letter referred to an annexed seniority
list that the Company would thereafter follow in compli-
ance with its understanding of the desires of the NLRB.
The letter went on to state that as a practical consideration
the Company would not be required to use the seniority list
for about a month and that the Company was prepared to
discuss any questions the Union had. The annexed list
feathered in the women in their proper seniority ranking.
By letter to the Company's attorney dated November 11,
1976, the union attorney refused to accept the Company's
seniority list that had been attached to the Company's
November 8 letter. The Union's letter stated that the
1186
SALMON TERMINAL DIVISION
Company had no authority to unilaterally alter the
seniority of the employees.
Thereafter the Union changed its position. On December
1, 1976, Frith held a meeting of the Company's employees
in which he told them that he did not blame them for being
hot about it, but that he had no choice in the matter and
they were going to have to feather in the women on the A
seniority list.
By letter dated December 13, 1976, the union attorney
advised the company attorney that the Union desired to
reach an agreement with the Company for certain contract
changes and for a single seniority list. Part of the proposal
was that the seniority list annexed to the Company's
November 8, 1976, letter, with one minor change, be
adopted. That list feathered in the women according to
seniority. By letter dated January 6, 1977, the Union sent
an agreed-upon supplement to the contract to the Compa-
ny. The supplement contained a feathered-in seniority list.
The parties are in agreement that on or about January 6,
1977, there was a consolidated feathered-in seniority list
that had been agreed to and was implemented. Counsel for
all parties further agreed that they were satisfied that the
current seniority system and work allotment system are not
discriminatory. However, there is some confusion as to the
status of the seniority lists between October 7, 1976, and
January 6, 1977. The October 7, 1976, seniority list placed
the women near the bottom of a single list. However,
Zuchowski credibly testified that when she returned to
work from layoff on October 13, 1976, the timecards near
the timeclock were divided into two separate groups as
they always had been. One group of cards was set out with
the seniority order of the men and the other group of cards
with the seniority order of the women. She further averred
that in November 1976 she saw that the cards were all in
the same group with the women's cards near the bottom
and that on December 8, 1976, she saw a seniority list
dated November 26, 1976, in the possession of manage-
ment, with the women's names near the bottom. In January
1977 she observed that the timecards of the women were
feathered in to those of the men.
6. Brandon and the forklift machine
The Company operates a number of forklift machines
which the parties refer to as bulls. The bulldrivers are
skilled workers who are paid more than the unskilled
employees. On October 14, 1976, Jane Brandon asked
Supervisor Thacker if she was eligible to drive a forklift
and whether she could learn to drive it. She had no
experience driving the type of forklift used by the
Company but she had in a prior job had some experience
with a simpler type of machine. She acknowledged in her
testimony that employees had to be trained to drive the
Company's forklifts and she had not been trained. Thacker
told Brandon that she was not qualified and he also said,
"You know they don't put a woman on a bull." About that
time Brandon saw men below her in seniority driving a
forklift.
21 The General Counsel stated on the record that Brandon went on
disability on December 20, 1976, and there was no backpay claimed after
that date.
On December 13, 1976, Thacker asked Brandon whether
she wanted A work or B work. She replied that she would
like to drive a forklift. He said that she knew he could not
do that. Later that day she asked shop committeeman Al
Fatland why she could not drive a forklift. He said he did
not know and asked her why she could not. She replied
that Thacker had told her she could not. Fatland asked
whether her seniority gave her the right to drive the bull
and she said that it did. Fatland then said he would find
out. About 45 minutes later Fatland said that someone in
management (who was unidentified) had told him that they
could not put her on the forklift until they had a proper
seniority list from the Union.
On December 14 Brandon again spoke to Thacker about
the forklift. Thacker told her that he could not put her on
the forklift, that it was up to the Union, and that she would
have to take it up with the Union.
On December 26, 1976, Brandon mailed a written
grievance to the Union stating that she had been wrongful-
ly denied the right to learn the job of bulldriving. 21 By
letter from Frith dated January 5, 1977, Brandon was
notified that her letter had been read at the Union's
executive board meeting and that her grievance would be
handled through normal grievance procedures set forth in
the contract. Brandon wrote to Frith on January 12, 1977,
asking to be present at all meetings pertaining to the
matter.
On January 13, 1977, Frith and the shop committee met
with Company Manager Staehli at a labor relations
committee meeting. Brandon was not notified of the
meeting and did not attend. The minutes of that meeting
show that the Union took the position that Brandon should
be afforded the opportunity to be trained to drive a forklift
and that her current seniority standing dictated she be
allowed that opportunity. The minutes show the company
position to be that Brandon would be afforded the
opportunity to train in July, along with others, but that no
guarantee would be given that she would make it as a
bulldriver. A copy of those minutes, on which some
unidentified person wrote an obscene remark, was posted
near the timeclock. The matter was raised again at a labor
relations committee meeting on January 26, 1977. Frith
and his shop committee were there for the Union, and
Staehli and another management official were there for the
Company. The minutes of that meeting show that the
Union stated that Brandon should be driving the bull as
her seniority dictated, and that the Company agreed that
when Brandon's seniority spot and the bull job came up
she would drive the bull. During that meeting Staehli stated
that the opportunity for training occurred when work was
busy, which would be in July or after.
In the past, when the Company badly needed a
bulldriver, it went down the A seniority list and asked
employees if they wanted to drive. However, the Company
has not used seniority as the sole basis for giving
opportunities to drive the forklift. In October 1976 when
Brandon asked to drive the forklift, there was a limited
amount of that type of work because the fish pack had
been partially put away and the need for extra forklift
1187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers was declining. Extra drivers are needed when the
pack begins coming in in late July and continues through
August and September. That is the time when an
inexperienced driver can be shown how to do the simple
jobs of picking up a load and carrying it to another place.
In October 1976 there were male employees lower in
seniority than Brandon who were driving the forklift but
they all had considerable experience driving the forklift
and the Company was taking advantage of that prior
experience.2
B. Analysis and Conclusions
1. The legal principles
a. The duty of fair representation
A union owes a duty of fair representation to employees
it represents. That duty "has become the touchstone of the
Board's concern with invidious discrimination by unions."
Handy Andy, Inc., 228 NLRB 447 (1977). The duty of fair
representation was first enunciated by the United State
Supreme Court in Steele v. Louisville & Nashville Railroad
Co., 323 U.S. 192 (1944), which proceeding arose under the
Railway Labor Act. In that case, which involved racial
discrimination, the Supreme Court held that the same
statute that gave the union the right to act as exclusive
bargaining agent inherently required the union to represent
nonunion or minority members fairly, impartially, and in
good faith. In Ford Motor Company v. Huffman, 345 U.S.
330 (1953), the Court applied the same doctrine where a
seniority question was raised which involved a union whose
status as exclusive representative derived from the Nation-
al Labor Relations Act. The Court held that "A wide range
of reasonableness must be allowed a statutory bargaining
representative ir serving the unit it represents, subject
always to complete good faith and honesty of purpose in
the exercise of its discretion." See also Humphrey v. Moore,
375 U.S. 335 (1964). Though the cases cited above held that
unions have a duty to fairly represent all employees for
whom they bargain, none of them dealt specifically with
the question whether a breach of that duty violated any of
the unfair labor practice sections of the Act. The Board
addressed itself to that question in Miranda Fuel Company,
Inc., 140 NLRB 181 (1962), enforcement denied 326 F.2d
172 (C.A. 2, 1963). In that case the Board found that a
union caused an employee's seniority status to be reduced
in a manner that violated its collective-bargaining contract.
The Board held that the duty of a statutory representative
to represent all employees in a bargaining unit had to be
viewed in the context of the right guaranteed employees in
Section 7 of the Act to bargain collectively, through
representatives of their own choosing. The Board then held
at 185:
Section 7 thus gives employees the right to be free from
unfair or irrelevant or invidious treatment by their
exclusive bargaining agent in matters affecting their
22 These findings are based on the credited testimony of Staehli.
Employee Elmer Shattuck corroborated Staehli's testimony to the effect that
there was more forklift work in July, August, and September than at other
times of the year. Employee Timothy Brown testified that he drove a forklift
employment. This right of employees is a statutory
limitation on statutory bargaining representatives, and
we conclude that Section 8(b)(1)(A) of the Act
accordingly prohibits labor organizations, when acting
in a statutory representative capacity, from taking
action against any employee upon considerations or
classifications which are irrelevant, invidious, or unfair.
The Board further held that a union violates Section 8(b)(2)
of the Act where its failure to represent employees fairly
adversely affects the employment status of an employee,
saying at 186:
We further conclude that a statutory bargaining
representative and an employer also respectively violate
Section 8(bX2) and 8(aX3) when, for arbitrary or
irrelevant reasons or upon the basis of an unfair
classification, the union attempts to cause or does cause
an employer to derogate the employment status of an
employee.
Where an employer participates or acquiesces in a union's
unfair conduct in such a manner that employee rights are
adversely affected, the company violates Section 8(a)(3)
and (I) of the Act. In Miranda at 188 the Board held:
The right to hire and fire and to control tenure of
employment is an employer's alone; and where an
employer does delegate or surrender hiring and firing
and related authority to a labor organization, the
employer is responsible, so far as this Act is concerned,
for the unlawful manner in which the Union exercises
the delegation.
In essence the Board held that, where a union causes an
employer to adversely affect an employee's employment
status in such a manner that no legitimate employer or
union purpose is served, the foreseeable result is an
unlawful encouragement of union membership. In the
Board's words at 187-188:
As we read Local 357, the Supreme Court did not
overrule its holding in Radio Officers that union
membership is encouraged or discouraged whenever a
union causes an employer to affect an individual's
employment status. What it does hold, in our opinion,
is that an 8 (aX3) or 8(bX2) violation does not
necessarily flow from the conduct which has the
foreseeable result of encouraging union membership,
but that given such "foreseeable result" the finding of a
violation may turn upon an evaluation of the disputed
conduct "in terms of legitimate employer or union
purposes." Unlike our colleagues, we do not interpret
the Court's opinion as permitting unions and their
agents an open season to affect an employee's employ-
ment status for any reason at all-personal, arbitrary,
unfair, capricious, and the like-merely because the
moving consideration does not involve the specific
for the Company for 2 or 3 months in the fall of 1976. However, he had done
the same type of work from the fall of 1974 through the early spring of 1976
and was an experienced driver who did not have to be trained.
1188
SALMON TERMINAL DIVISION
union membership or activities of the affected employ-
ee. [Footnote omitted.]
Though the Court of Appeals for the Second Circuit
refused to enforce the Miranda Decision, the majority of
that court did not rule on the question whether a breach of
the duty of fair representation was an unfair labor practice.
In Vaca v. Sipes, 386 U.S. 171 (1967), the United States
Supreme Court decided a preemption question involving a
state court's jurisdiction over a union's allegedly arbitrary
failure to process a grievance to arbitration. The high Court
found that the state court had concurrent jurisdiction but a
failure to represent fairly had not been proven. In reaching
that conclusion the Court reviewed the history of the
Miranda doctrine in detail, tying that doctrine to the flow
of cases dealing with the duty of fair representation which
started under the Railway Labor Act. The Court held at
181: ". . . when the Board declared in Miranda Fuel that a
union's breach of its duty of fair representation would
henceforth be treated as an unfair labor practice, the Board
adopted and applied the doctrine as it had been developed
by the federal courts." In Kaj Kling v. N.LR.B., 503 F.2d
1044 (C.A. 9, 1975), the court in referring to Miranda
stated: "Though enforcement was denied by the Second
Circuit . . . the Board's Miranda Fuel doctrine appears to
have won the day, as shown by the later favorable
quotation in Vaca v. Sipes, 386 U.S. 171 at 177 .... "
The Board has consistently followed its Miranda doc-
trine. International Association of Bridge, Structural and
Ornamental Iron Workers, Local No. 433 (The Associated
General Contractors of California, Inc.), 228 NLRB 1420
(1977); Local No. 324, International Union of Operating
Engineers, AFL-CIO (Michigan Chapter, A GC), 226 NLRB
587 (1976). The doctrine has frequently been applied to
situations where employees were classified for employment
purposes on the basis of race. Independent Metal Workers
Union, Local No. I (Hughes Tool Company), 147 NLRB
1573 (1964); Local 1367, International Longshoremen's
Association, AFL-CIO, et al. (Galveston Maritime Associa-
tion), 148 NLRB 897 (1964), enfd. 368 F.2d 1010 (C.A. 5,
1966); Local Union No. 12, United Rubber, Cork, Linoleum
& Plastic Workers of America, AFL-CIO (The Business
League of Gladstone), 150 NLRB 312 (1964), enfd. 368 F.2d
12 (C.A. 5, 1966). Federal labor policy reflects a clear
mandate against sex discrimination as well as race
discrimination. Frontiero v. Richardson, 411 U.S. 677
(1973); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). In
Pacific Maritime Association, 209 NLRB 519 (1974), the
Board held that a company violated Section 8(a)(3) and (1)
of the Act, and a union 8(bX)(1) (A) and (2) of the Act,
where sexual classifications were used to deny women
referral from a hiring hall. The Board found that such
sexual considerations were irrelevant, invidious, and
unfair, that the union breached its duty of fair representa-
tion, and that the company participated in such action.
b. The critical dates
Section 10(b) of the Act provides ". . . that no complaint
shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with
the Board and the service of a copy thereof upon the
person against whom such charge is made .... " The
charge against the Union was filed on September 7, 1976,
and a copy of that charge was served upon the Union on
September 9, 1976. The Union cannot be found to have
violated the Act by conduct that occurred more than 6
months prior to September 9, 1976. The 10(b) date for the
Union therefore begins on March 9, 1976. The charge
against the Company was filed and served on October 22,
1976. The 10(b) period for the Company therefore begins
on April 22, 1976, and no violation of the Act can be found
against the Company for conduct occurring prior to that
date. However, evidence of conduct which occurred prior
to the 10(b) period may be used to illuminate current
conduct (within the 10(b) period) claimed in itself to be an
unfair labor practice. Local Lodge No. 1424, International
Association of Machinists, AFL-CIO, etc. [Bryan Manufac-
turing Co.] v. N.L.R.B., 362 U.S. 411 (1960).
2. The background-events prior to the 10(b)
period
On about October I, 1973, the Company added a
labeling operation to its business. The Union furnished
employees for the new operation by sending the Company
the former Puckett Company employees. The Union also
furnished the Company with seniority lists which perpetu-
ated the Puckett Company practice of segregating female
employees on a separate seniority list. The Company
maintained an A seniority list for the men and a B seniority
list for the women. The men were permitted to perform one
type of work and the women a different type. Lists were
maintained separately for purpose of layoff and recall. The
women were not permitted to perform men's work and the
men were not permitted to perform women's work. The
women received less pay than the men. No one pretended
at the time that the categories were based on the ability to
perform job duties. It was clearly understood by everyone
that the jobs were divided into men's work and women's
work. Indeed, the contract between the Company and the
Union provided a wage scale effective June I, 1974,
entitled "Women Wage Scale."
In the fall of 1974 it appeared that the women might lose
some of their sleeving work because of the installation of a
sleeving machine. Machine work was men's work. A
dispute arose over the sleeving machine work which was
resolved by the elimination of the B seniority list. The
women were feathered into a single A seniority list based
on their length of service. The distinction between A and B
work was continued, but the B work was no longer
women's work. It was performed by volunteers and
assignments based on inverse seniority. The new system
effectively eliminated segregation based on sex. While the
Company, the Union, and the male employees paid lip
service to the new system, they all undertook to undermine
it. The women were subjected to continued harassment.
Male employees undertook to make their jobs as difficult
as possible. The women were given assignments that were
intended to drive them off the job. Two of the women were
in fact injured because of the treatment they received. The
harassment drove the women back onto a B seniority list.
In early July 1975 the Union held a meeting of the
Company's employees at which the employees voted for
1189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the women to go back on the B list. The Company went
along with the institution of the new B list. Once again the
women performed the lesser paying B work and were
segregated with regard to work opportunities, layoff, and
recall.
On March 3, 1976, the Union added a new dimension to
its invidious treatment of women. This time it was directed
against the casual B women. The Union demanded, and
the Company agreed, to the institution of a system under
which A seniority men who faced layoff could replace B
casual women in performing B work. When the seniority B
women asked for reciprocal treatment so that they would
be permitted to perform the work of A casual men rather
than face layoff, their request was consistently denied.
3. The beginning of the 10(b) period and the
violations of the Act
a. The separate seniority lists
The 10(b) period began for the Union on March 9, 1976,
and for the Company on April 22, 1976. On both of those
dates and for a substantial period thereafter, the Union
maintained and enforced, and the Company participated
and acquiesced in, a seniority system in which the seniority
women employees were segregated onto a separate B
seniority list, which resulted in their receiving a lesser rate
of pay than the men and in limiting the work which they
were allowed to perform. Their layoff and recall rights were
independent of those of the men. Seniority A men were not
permitted to perform B work. That limitation of work
opportunities for the men might be considered a discrimi-
nation against the men because of their sex, but such an
additional discrimination cannot be used to justify the
discrimination against the women. Neither group would
have been discriminated against if the single feathered-in
seniority list had been maintained.
Within the 10(b) period the women were consistently
treated as a group with regard to work-related matters.
Their individual abilities to perform available work was not
considered. The remarks and acts of both the Company
and the Union as described in detail above clearly establish
that the distinction between A and B seniority work was
based solely on sex. Some women might have been able to
perform A work better than men and some men might be
able to perform B work better than women, but an ability
criteria was not used. Many of the women can and now do
perform A work.
The separate B seniority list was maintained until
October 7, 1976, when the women were placed near the
bottom of a single seniority roster.
The separate seniority lists maintained from the begin-
ning of the 10(b) periods until October 7, 1976, were not
part of a neutral bona fide seniority system based on length
of service. Instead, they were, during the 10(b) period,
based on invidious sexual considerations. This is not a case
where a challenge to a neutral, length of service, seniority
system is based on discrimination that is unattackable
because it occurred outside a limitation period. The
challenge in the instant case is to a sexually based seniority
system that was actively maintained and enforced within a
time period that can be reached by the charge. Here, within
the 10(b) period, the seniority women were on a separate,
segregated seniority list. Also within the 10(b) period, the
seniority women were placed near the bottom of a single
seniority list with the men without regard to length of
employment. Cf. United Air Lines v. Evans, 431 U.S. 553
(1977), Teamsters v. U.S., 431 U.S. 324 (1977)
I find that the Union failed to fairly represent the
seniority women in the bargaining unit from March 9 to
October 7, 1976, by maintaining and enforcing separate
male and female seniority lists. By such conduct the Union
violated Section 8(bX)(A) and (2) of the Act. By its
participation and acquiescence in such a seniority system
from April 22 to October 7, 1976, the Company violated
Section 8(aX3) and (1) of the Act. The female employees
who were wrongfully discriminated against by such
conduct were Zava Jane Brandon (Duchsheren), Geraldine
Shattuck, Patsy Zuchowski, Anna Lee Ancheta, and
Roxanne Moshier (Yuhase).
b. The replacement of the casual B women with A
seniority men
On March 9, 1976, the beginning of the 10(b) period for
the Union, and for a substantial period thereafter, the
Union maintained and enforced a practice under which A
seniority men replaced casual women employees who were
doing B work. If that system of "bumping" had been based
on length of service there would have been no violation of
the Act. However, length of service was not the criteria. B
seniority women, who had been employed by the Company
for substantial lengths of time, were not permitted to bump
casual men who were performing A work. Seniority men
were permitted to bump casual women but seniority
women were not permitted to bump casual men. The
criteria for bumping was based solely on sex and the
women were discriminated against. Casual female employ-
ees Suzanne Godon and Denise Collier (Jackson) were laid
off on March 3, 1976, and were replaced by men. The 10(b)
period did not begin for the Union until March 9, 1976.
However, between March 9, 1976, and October 7, 1976 (the
date of the single seniority list), the discriminatory practice
was in effect. That practice was in itself unfair and
invidious from the beginning of the 10(b) period, without
regard to any pre-10(b) conduct. This is not a situation that
can be analogized to an unlawful layoff for union activity
before the 10(b) period, which continued thereafter. It is
closer to a situation where a closed-shop provision,
unlawful on its face, is executed before the 10(b) period
and maintained thereafter. Any employee who was
wronged within the 10(b) period because of the unlawful
practice is entitled to relief.
I find that the Union failed to fairly represent casual
female employees from March 9, 1976, through October 7,
1976, by maintaining and enforcing a practice under which
seniority men could bump casual women while seniority
women could not bump casual men. By such conduct, the
Union violated Section 8 (bXIXA) and (2) of the Act. By
participating and acquiescing in such conduct between
April 22, 1976, and October 7, 1976, the Company violated
Section 8(aX3) and (1) of the Act. The women who were
discriminated against by such conduct were Suzanne
Godon and Denise Collier (Jackson).
1190
SALMON TERMINAL DIVISION
c. The placement of the seniority women near the
bottom of the A seniority list
The charge against the Union was filed on March 7,
1976. After considerable pressure by the International, the
Union finally took action. At a union meeting on
September 21, 1976, the Company's employees voted to
keep the women off the A list in spite of advice by the
International that the women be put on that list. At
another meeting on October 7, 1976, the Union told the
employees that the International had instructed it to put
the women on the A list. The employees then voted to
place the women near the bottom of the A list above the
three men who had achieved seniority after the charge was
filed. The following day the Union told the Company what
had occurred. A new seniority list dated October 7 was
prepared by the Union which placed the women near the
bottom of the list. The Company went along with the
Union's position and prepared a list of its own which
placed the women near the bottom of the seniority list. By
November 8, 1976, the Company had changed its mind
and, by a letter dated that day, it notified the Union that it
would not accept the Union's end-tailed list and that it
would comply with its understanding of the desire of the
NLRB by following a new seniority list, which was
annexed to the letter, in which the women were feathered
in with the men based on seniority. By letter dated
November 11, 1976, the Union notified the Company that
it would not accept the Company's new seniority list.
Thereafter, the Union changed its mind and by letter dated
December 13, 1976, it informed the Company that it
wished to reach an agreement with the Company based on
the Company's November 8 seniority list. An agreed-upon
supplement to the contract incorporating the feathered-in
list was sent to the Company by the Union in a letter dated
January 6, 1977. It is not clear from the record exactly
when the feathered-in list became operative, though it is
agreed that there was no discrimination against the women
based on the list after January 6, 1977.
The October 7, 1976, seniority list was not based on
length of employment. The women were placed near the
bottom of the seniority list for the same reason that they
had been on the B seniority list; namely, because they were
females.
I find that the Union failed to fairly represent the women
employees between October 7, 1976, and January 6, 1977,
by maintaining and enforcing a seniority list on which the
women were placed near the bottom without regard to
their length of service. By such conduct, the Union violated
Section 8(b) (I)(A) and (2) of the Act. As appears from the
Company's letter of November 8, 1976, it desired to end
the discrimination against the women on that date.
However, it left the question somewhat open by stating
that it would not be required to use the seniority list for
about a month and that the Company was prepared to
discuss any questions the Union had. The final agreement
between the Company and the Union eliminating the
discrimination against the women did not occur until a
23 If, in a backpay proceeding, it appears that there was no discrimina-
tion against the women beginning at a date before January 6, 1977, all
backpay liability will end as of that earlier date.
later date. Until the actual date on which the discrimina-
tion ceased, the Company must be held accountable.2 3 I
find that the Company violated Section 8(aX3) and (1) of
the Act by participating and acquiescing in the Union's
conduct with regard to the end-tailed list.
4. Brandon and the Forklift
On October 14, 1976, Jane Brandon asked Supervisor
Thacker if she was eligible to drive a forklift and whether
she could learn to drive it. She was told that they did not
put women on the forklift. She repeated her request to
Thacker on December 13, 1976, and again her request was
denied. Thacker was an agent of the Company and was not
an agent of the Union. Brandon first alerted the Union to
the problem on December 13, 1976, when she asked shop
committeeman Al Fatland about driving a forklift. Fatland
told Brandon that the Company informed him that they
could not put her on the forklift until the Union gave them
a proper seniority list. Brandon followed up on her request
by mailing a written grievance to the Union on December
26, 1976. By letter dated January 5, 1977, the Union
notified Brandon that her grievance would be taken up
through the grievance procedure. The Union met with the
Company on January 13 and took the position that
Brandon should be given the opportunity to be trained on
the forklift based on her current seniority standing. The
Company equivocated somewhat by taking the position
that Brandon would be afforded the opportunity to train in
July along with others but that there would be no
guarantee that she would become a forklift driver. The
Union took up the matter again at a meeting with the
Company on January 26, 1977, and repeated its claim that
Brandon should be driving the forklift as her seniority
dictated.24 The Company agreed that, when Brandon's
seniority spot and the forklift job came up, she would drive
the forklift. The Company stated that the opportunity for
training occurred when work was busy, which would be in
July or after. Brandon did not come back to work after that
time and therefore the issue was carried no further.
The Company did use seniority as one of the criteria in
determining who would have the opportunity to learn to
drive the forklift. However, such learning opportunities
were given only when there was a substantial call for
forklift work and that did not ordinarily occur until July of
each year.
Supervisor Thacker's remark to Brandon on October 14,
1976, that women were not put on the forklift, did indicate
sexual discrimination by the Company. Thacker was not a
union agent and his remarks could not bind the Union.
The General Counsel's theory of the case is that the
Company violated the Act by participating and acquiesc-
ing in the Union's unfair treatment of employees. There-
fore, the Union's actions must be considered. In this
instance the Union agreed with Brandon that she should be
given the opportunity to drive the forklift and it pursued
her grievance. At the Union's urging, the Company agreed
to give Brandon the opportunity to learn the forklift work
at the first available opportunity. Under all the circum-
24 It is noted that as of January 6, 1977, there was only one senionty list
and Brandon was properly feathered into it based on her length of
employment.
1191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances, it cannot be found that the Union failed to fairly
represent Brandon with regard to the forklift matter. In the
absence of such unfair representation no violation by the
Company can be found.
5. The 8(b)(1)(A) threats
About mid-July 1976 Brandon told shop committeeman
Al Fatland that the women were going to the State Human
Rights Commission and the NLRB if he and the Union
were not willing to help them in the sex discrimination
matter. Fatland replied, "You try something like that and
your asses will be thrown out of the Union and fired off the
job . . . you don't pull that shit down here." During the
first week in August 1976 Brandon again told Fatland that
the women were contemplating the filing of charges against
the Union and the Company. Fatland once again told her
that he would have her ass thrown out of the Union and off
the job if she or any of the other women tried to do that.
Al Fatland was on the union shop committee. That
committee had authority from the Union to act with
respect to hearing employee complaints, to attempt to
negotiate resolution of complaints with management, and
to participate in negotiations of labor agreements. As is set
forth above, the committee was active in dealing with
seniority matters. Indeed, with regard to the "bumping"
incident, Union Business Agent Bukoskey disagreed with
the action of his shop committee but he went along with
them because he did not want to "degrade" his committee.
I find that Al Fatland was an agent of the Union.
International Brotherhood of Teamsters, General Drivers,
Chauffeurs and Helpers Local Union No. 886 (Lee Way
Motor Freight, Inc.), 229 NLRB 832 (1977). 1 further find
that the Union, in mid-July and again during the first week
in August, through its shop committeeman Al Fatland,
violated Section 8(b)(l)(A) of the Act by threatening
employees that they would be expelled from the Union and
discharged from their jobs if they filed charges with the
NLRB and the State Human Rights Commission. Cf. The
Buffalo Newspaper Guild, Local 26, American Newspaper
Guild, AFL-CIO-CLC (Buffalo Courier-Express, Inc.), 220
NLRB 79 (1975).
On about October 13, 1976, Union Business Agent Frith,
in the context of asking employees to withdraw charges
against the Union, told employees Zuchowski and Shat-
tuck that the longshoremen would not like being assessed
for discrimination charges. When Shattuck asked whether
Frith meant that their lives could be in danger, Frith
answered, "Well, you know the longshoremen."
Frith was the Union's business agent. The amended
answer admits, and I find, that he is an agent of the Union.
Frith's remark that the longshoremen would not like to
be assessed for discrimination charges was somewhat
ambiguous. However, all ambiguity was removed when he
answered, "Well, you know the longshoremen" in response
to Shattuck's question whether the women's lives would be
in danger. In context, Frith's remark was a clear threat of
reprisal if the women refused to withdraw the charges. I
25 Counsel for the General Counsel takes the position in her brief that
the parties have consolidated the separate seniority lists in a lawful manner
and that it is not necessary to specifically order a merger in the remedy. The
brief requests that a make-whole remedy be ordered, coupled with an
find that on about October 15, 1976, the Union, through its
Business Agent Frith, violated Section 8(bX)()(A) of the
Act by threatening employees with reprisals if they refused
to withdraw the charge against the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Union and the Company, as set
forth in section III, above, occurring in connection with the
business operations of the Company set forth in section I,
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Union has engaged in unfair labor
practices within the meaning of Section 8(b)(IXA) and (2)
of the Act, and that the Company has engaged in unfair
labor practices within the meaning of Section 8 (a)(3) and
(1) of the Act, I shall recommend that they be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.25
The Company argues that, if a violation is found, the
Union should be held primarily liable for backpay. As is
indicated by the fact that seniority questions were resolved
at union meetings, the Union was the prime mover in
causing the violations of the Act. However, an employer
cannot absolve itself from financial responsibility by
merely leaving seniority matters to the Union for resolu-
tion. The Company acquiesced in and implemented the
Union's policies with regard to seniority. It was not forced
to do so by an arbitration award or by a strike. The usual
remedy in such a situation requires joint and several
liability for the Company and the Union. Cf. Pacific
Maritime Association, 209 NLRB 519 (1974). There are no
special circumstances that require deviation from the usual
practice in this case. The Company did protest the Union's
seniority list in a letter dated November 8, 1976, to the
Union and also indicated that it was implementing a lawful
feathered-in seniority list. If in fact the Company did
enforce a lawful seniority list after that date and there was
no further discrimination against the women, then there
would be no backpay due after that date. If necessary, the
issue of whether the backpay period ended on November 8,
1976, may be litigated at a backpay hearing.
Having found that the Union from March 9, 1976, to
October 7, 1976, and the Company from April 22, 1976, to
October 7, 1976, unlawfully discriminated against seniority
women employees Zava Jane Brandon (Duchsheren),
Geraldine Shattuck, Patsy Zuchowski, Anna Lee Ancheta,
and Roxanne Moshier (Yuhase) by maintaining and
enforcing a separate, segregated seniority list for women
employees, I recommend:
appropriate notice requiring the Company and the Union to cease and
desist from violations committed herein. As the seniority lists have been
merged, an affirmative order directing such a merger is not recommended.
1192
SALMON TERMINAL DIVISION
1. That the Union be ordered to make those five
named employees whole for any loss of earnings they
may have suffered as a result of the discrimination
against them by payment to each of them the amount
each normally would have earned from March 9, 1976
to April 22, 197626 if said women had been on a single
seniority list with the male employees based on length
of service.
2. That the Union and the Company be ordered
jointly and severally to make those five named
employees whole for any loss of earnings they may
have suffered as a result of the discrimination against
them by payment to each of them the amount each
normally would have earned from April 22, 1976, to
October 7, 1976, if said women had been on a single
seniority list with the male employees based on length
of service. 27
Having found that from October 7, 1976, to January 6,
1977, the Union and the Company unlawfully discrimi-
nated against the seniority women named above by
maintaining and enforcing a seniority list on which those
women were unlawfully placed near the bottom without
regard to length of service, I recommend that the Union
and the Company be ordered jointly and severally to make
those employees whole for any loss of earnings they may
have suffered by payment to each of them the amount each
normally would have earned from October 7, 1976, to
January 6, 1977, if said women had been on a single
seniority list with the male employees based on length of
service.
Having found that the Union from March 9, 1976, to
October 7, 1976, and the Company from April 22, 1976, to
October 7, 1976, unlawfully discriminated against casual
women employees Suzanne Godon and Denise Collier
(Jackson) by maintaining and enforcing a practice pursu-
ant to which those female employees were replaced by
seniority men while seniority women were not permitted to
replace casual men, I recommend:
I. That the Union be ordered to make those two
named employees whole for any loss of earnings they
may have suffered as a result of the discrimination
against them by payment to each of them the amount
each normally would have earned from March 9, 1976,
to April 22, 1976, if they had not been replaced by
seniority men.
2. That the Union and the Company be ordered
jointly and severally to make those two named
employees whole for any loss of earnings they may
have suffered as a result of the discrimination against
them by payment to each of them the amount each
normally would have earned from April 22, 1976, to
October 7, 1976, if they had not been replaced by
seniority men.
26 April 22, 1976 is the beginning of the 10(b) period for the Company.
27 Where said women were discriminated against by the payment of a
lower rate of pay than they should have received under a proper seniority
system (as distinguished from loss of work itself), then the amount of pay
that has already been paid is to be deducted from the backpay due.
All backpay, less net earnings, is to be computed on a
quarterly basis in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and shall include
interest at 6 percent as provided in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
I recommend that the Company be ordered to preserve
and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary to
analyze the amount of backpay due.
I further recommend that the Union be ordered to cease
and desist from in any manner restraining or coercing
employees in the exercise of rights guaranteed them in
Section 7 of the Act, and that the Company be ordered to
cease and desist from in any manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.28
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. (a) By maintaining and enforcing a separate, segre-
gated seniority list for women employees from March 9,
1976, to October 7, 1976, the Union failed to fairly
represent those women in violation of Section 8(b)(1XI)(A)
and (2) of the Act.
(b) By its participation and acquiescence in such a
seniority system from April 22 to October 7, 1976, the
Company violated Section 8(a)(3) and (1) of the Act.
4. (a) By maintaining and enforcing a seniority list
from October 7, 1976, to January 6, 1977, on which
seniority women were placed near the bottom without
regard to length of service, the Union failed to fairly
represent those women in violation of Section 8(b)(l)(A)
and (2) of the Act.
(b) By its participation and acquiescence in such conduct
by the Union, the Company violated Section 8(a)(3) and
(1) of the Act.
5. (a) By maintaining and enforcing a practice from
March 9, 1976, to October 7, 1976, pursuant to which
casual women employees were replaced by seniority men
while seniority women were not permitted to replace casual
men, the Union failed to fairly represent those women in
violation of Section 8(bX1)(A) and (2) of the Act.
(b) By its participation and acquiescence in such conduct
by the Union from April 22, 1976, to October 7, 1976, the
Company violated Section 8 (aX3) and (1) of the Act.
6. By threatening employees with expulsion from the
Union and loss of employment if they filed charges with
the State Human Rights Commission and the NLRB, the
Union violated Section 8(bXIXA) of the Act.
28 International Association of Bridge, Structural and Ornamental Iron
Workers, Local No. 433 (The Associated General Contractors of California,
Inc.), 228 NLRB 1420 (1977); Boston Pet Supply, Inc., 227 NLRB 1891
(1977).
1193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. By threatening employees with reprisals if they
refused to withdraw charges against the Union, the Union
violated Section 8(b)(l)(A) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 29
A. The Respondent Union, International Longshore-
men's and Warehousemen's Union, Local No. 9, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Maintaining or enforcing a separate, segregated
seniority list for women employees.
(b) Maintaining or enforcing a seniority list on which
seniority women are placed near the bottom without regard
to length of employment.
(c) Maintaining or enforcing a practice pursuant to
which casual women employees are replaced by seniority
men while seniority women are not permitted to replace
casual men.
(d) Threatening employees with expulsion from the
Union or loss of employment if they file charges with a
State Human Rights Commission or the National Labor
Relations Board.
(e) Threatening employees with reprisals if they refuse to
withdraw charges against the Union.
(f) In any manner restraining or coercing employees in
the exercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole Zava Jane Brandon (Duchsheren),
Geraldine Shattuck, Patsy Zuchowski, Anna Lee Ancheta,
and Roxanne Moshier (Yuhase), for any loss of earnings
they may have suffered as a result of the discrimination
against them from March 9 to April 22, 1976, and jointly
and severally with Olympic Steamship Co., Inc. d/b/a
Salmon Terminal Division make whole those employees
for any loss of earnings they may have suffered as a result
of the discrimination against them from April 22, 1976, to
January 6, 1977, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Make whole Suzanne Godon and Denise Collier
(Jackson) for any loss of earnings they may have suffered
as a result of the discrimination against them from March
9, 1976, to April 22, 1976, and jointly and severally with
said Company make whole those employees for any loss of
earnings they may have suffered as a result of the
discrimination against them from April 22, 1976, to
October 7, 1976, in the manner set forth in the section of
this Decision entitled "The Remedy."
29 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the 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.
(c) Post at its business offices, hiring hall, and meeting
places, copies of the attached notice marked "Appendix
A."3 0 Copies of said notice, on forms provided by the
Regional Director for Region 19, after being duly signed by
its authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by it to ensure that
said notices are not altered, defaced, or covered by any
other material.
(d) Deliver to the Regional Director for Region 19 signed
copies of said notice in sufficient numbers to be posted by
Olympic Steamship Co., Inc. d/b/a Salmon Terminal
Division in all places where notices to employees are
customarily posted.
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
B. The Respondent Employer, Olympic Steamship Co.,
Inc. d/b/a Salmon Terminal Division, Seattle, Washing-
ton, its officers, agents, successors, and assigns, shall:
1. (a) Cease and desist from participating or acquiesc-
ing in the maintenance or enforcement by International
Longshoremen's and Warehousemen's Union, Local No. 9,
of a separate, segregated seniority list for women employ-
ees.
(b) Participating or acquiescing in the maintenance or
enforcement by said Union of a seniority list on which
seniority women are placed near the bottom without regard
to length of employment.
(c) Participating or acquiescing in the maintenance or
enforcement by said Union of a practice pursuant to which
casual women employees are replaced by seniority men
while seniority women are not permitted to replace casual
men.
(d) In any manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Jointly and severally with said Union make whole
Zava Jane Brandon (Duchsheren), Geraldine Shattuck,
Patsy Zuchowski, Anna Lee Ancheta, and Roxanne
Moshier (Yuhase) for any loss of earnings they may have
suffered as a result of the discrimination against them from
April 22, 1976, to January 6, 1977, in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Jointly and severally with said Union make whole
Suzanne Godon and Denise Collier (Jackson) for any loss
of earnings they may have suffered as a result of the
discrimination against them from April 22, 1976, to
October 7, 1976, in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
30 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
1194
SALMON TERMINAL DIVISION
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due.
(d) Post at its place of business copies of the attached
notice marked "Appendix B."31 Copies of said notice, on
forms provided by the Regional Director for Region 19,
after being duly signed by its authorized representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
a3 See fn. 30, supra.
be taken by it to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Deliver to the Regional Director for Region 19 signed
copies of said notice in sufficient number to be posted by
International Longshoremen's and Warehousemen's
Union, Local No. 9, in places where notices to members
are customarily posted.
(f) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
1195