Sea-Land Service, Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1971

189 N.L.R.B. 13 (N.L.R.B. 1971)

SEA-LAND SERVICE, INC.
Sea-Land Service , Inc. and Nicolas Santos Santos
I.L.A. Local 1575, International Longshoremen's
Association, AFL-CIO and Nicolas Santos Santos
Cases 24-CA-2843 and 24-CB-733
13
We construe the Trial Examiner 's dismissal of the complaint "as to the
Detroit" as pertaining only to the hiring done by the regular hatch boss,
Libran, for whom Lopez substituted on the above dates.
The May I I violation , found by the Trial Examiner and not excepted to,
should have been included in The Remedy section as one of the dates for
which Santos is to be made whole.
March 18, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On November 10, 1970, Trial Examiner John F.
Funke ssued his Decision in the above-entitled
proceeding, finding that Respondent Employer had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that Respondent
Employer and Respondent Union had not engaged in
certain unfair labor practices as alleged in the
complaint. Thereafter, General Counsel filed excep-
tions to the Decision and a brief in support of his
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
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 Trial Examiner as modified below and
hereby orders that Respondent, Sea-Land Service
Inc., San Juan, Puerto Rico, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order as
modified below:
1. In footnote 24 of the Trial Examiner's Decision,
substitute "20" for "10" days.
2. Substitute the attached Appendix for the Trial
Examiner's Appendix.
We adopt the Trial Examiner's finding, to which no exception is
taken, that Respondent Employer violated Section 8(a)(l) and (3) by. inter
a/ia, Lopez's refusal to hire Santos for work aboard the Detroit on April 26,
May 5, and May 14 because Santos did not have a union membership card.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT deduct any union dues from
money earned by any employee and pay the
money over to I.L.A. Local 1575, International
Longshoremen's Association, AFL-CIO, unless
said employee has signed a written authorization
permitting us to deduct said dues 30 days after the
date of his employment with us.
WE WILL reimburse Nicolas Santos Santos for
any dues deducted by us from his earnings after
September 2, 1969.
WE WILL NOT discriminate against Nicolas
Santos Santos or any other employee by refusing
to give him work as a casual or extra longshore-
man because he does not have a membership or
temporary union card with I.L.A. Local 1575,
International Longshoremen's Association,
AFL-CIO.
WE WILL pay Nicolas Santos Santos for any
wages he may have lost because we refused him
employment because he did not have a member-
ship or temporary union card with said I.L.A.
Local 1575.
WE WILL NOT interfere with, restrain, or coerce
our employees by telling them I.L.A. Local 1575
does not want them to work because they talk too
much.
SEA-LAND SERVICE, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 7th Floor, Pan Am Building , 255 Ponce de
189 NLRB No. 3
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leon Avenue, Hato Rey, Puerto Rico 00919, Tele-
phone 809-765-0404.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon a charge filed
April 2, 1970, and an amended charge filed May 8, 1970, in
Case 24-CA-2843, by Nicolas Santos Santos, an individual,
against Sea-Land Service, Inc., herein the Company, and
upon a charge filed March 2, 1970, and an amended charge
filed May 8, 1970, in Case 24-CB-733, by Santos against
I.L.A. Local 1575, International Longshoremen's Associa-
tion, AFL-CIO, herein the Union (the Company and the
Union are referred to collectively as the Respondents), the
General Counsel issued complaint dated July 17, 1970,
alleging the Company violated Section 8(a) (1), (2), and (3)
of the Act and the Union violated Section 8 (b) (1) (A) and
(2) of the Act.
The answers of the Respondents denied the commission
of any unfair labor practices.
This proceeding, with all parties except the Charging
Party represented by counsel, was heard by me at Hato
Rey, Puerto Rico, on August 31 and September 1, 2, 3 and
4, 1970. At the conclusion of the hearing the parties were
given leave to file briefs, and briefs were received from the
General Counsel and the Company on October 13.1
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The Company is a Delaware corporation maintaining
offices and port facilities at San Juan and Ponce, Puerto
Rico (only the San Juan operations are involved in this
proceeding), where it is engaged in shipping and stevedor-
ing services . Revenues from such services exceed 50,000
annually
The Company is engaged in commerce within the
meaning of the Act.
II. THE UNION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A The Hiring Practices of the Company
The Company and the Union operated under a
collective-bargaining agreement providing for a union shop
which ran from October 1, 1968, until September 30, 1971. 2
Sea-Land, at all times material herein, maintained four
regular gangs for loading mechanized ships. (This refers to
ships loaded with containers of cargo rather "break-bulk"
cargo.) Each of these regular gangs was fortified by
"suplente" or substitute list of longshoremen who would be
called when the complement of the regular gang was not
complete on any specific loading operation. 3 Longshore-
men became eligible to make the regular and suplente lists
after they had completed 800 hours of longshore work for
Sea-Land in any one year. The practice of giving
preference in hiring to these longshoremen is not under
attack although all were required to be members of the
Union. The regulars and suplentes formed the bargaining
unit.
When the required complement of the gangs could not be
filled from the regular and suplente lists the remainder was
picked from a shapeup of longshoremen seeking employ-
ment. These were "casual" employees, not covered by the
contract. Those applicants who shaped up for the container
ships stood outside the fence and when the hiring boss
called for additional longshoremen waived their cards.
These cards might be regular membership cards, temporary
membership cards, or social security cards. The longshore-
men selected from the shapeup were apparently selected on
a hit-or-miss basis except that it is the contention of the
General Counsel that applicants shaping up who had either
membership or temporary membership cards were selected
ahead of those who had only social security cards. This
discrimination is claimed to be unlawful.
During 1970 the Company had in service one break-bulk
ship, the Detroit This ship held five hatches, each
supervised by a hatch boss who did the hiring for his
hatch.4 Each had his regular gang and if that gang was not
filled when the ship was in the hatch boss would hire from a
shapeup. (There does not appear to have been any suplente
list for the filling of gang vacancies on the Detroit.) The
contention of discrimination in hiring for the Detroit is the
alleged preference given to longshoremen in the shapeup
who possessed union cards as against those who had only
social security cards.
B Discrimination Against Santos
1. Union dues
Paragraphs X and XI of the complaint allege that
Respondent Company violated Section 8(a) (1) and (2) of
the Act by deducting sums of money from earnings of
Santos for union dues although Santos was not a member
of the Union and that Respondent union violated Section
8(b) (1) (A) by requiring the Company to collect such dues
and pay them to the Union. Said paragraphs further allege
that no authorization for such deduction of dues had ever
been made by Santos.
At the hearing it was stipulated between the General
Counsel and counsel for the Company that during the
period from September 2, 1969, until the date of the hearing
the Company had checked off a total of 12 from the
earnings of Santos and remitted them to the Union. The
I The General Counsel's brief consisted of a recommended order which, a fifth gang known as the "crazy gang." made up of longshoremen from
considering the nature of the case, might be deemed adequate the suplente list was also employed when required
2 Those parts of the agreement which the General Counsel considered a On the mechanized ships one superintendent did the hiring for the
pertinent were received as G C Exh 2 entire ship
J In addition to the four regular gangs which loaded the container ships,
SEA-LAND SERVICE, INC. 15
Union did not join in this stipulation nor was the issue ever
litigated as between the General Counsel and the Union.
2. Discrimination in hiring
The complaint alleges that on certain specified dates
Santos Santos, herein Santos, 5 was denied employment by
the Company because he did not possess a membership or
temporary membership card in the Union. (At the hearing
the complaint was amended, over objection of the
Company, to allege additional dates.) These dates are
February 8, 16, and 18; March 4, 12, 15, 16, 17, 22, and 26;
April 1, 3, 6, 7, 11, 21, 22, and 26; and May 5, 11, 14, 20, 30,
and 31. All dates refer to 1970 as do all other dates unless
otherwise noted.
Santos testified, and his testimony is difficult to follow,
that he had been employed by the Company in various
capacities since 1959. He had served as a longshoreman
during this period on both mechanized and cargo ships6
and during 1969 he had worked more than 800 hours as a
longshoreman, a fact not verified by any records. During
this period of time he had never applied for membership in
the Union.7 During the month of January Santos noticed
that there was an increase in membership in the Union,
thereby making it more difficult for nonmembers to work.
(This was a conclusion on the part of Santos based on
observation.) On January 23, Santos went to the union
office taking with him two pictures, a medical certificate,
and 48 for an initiation fee. He saw Guillermo Ortiz,
president of the Union, and applied for membership. Ortiz
told him his application would have to be approved by the
Union's board of directors, gave him a temporary work
permit good for 1 month, and returned his 48. Santos
departed and went to the National Labor Relations Board.
On February 9 Santos returned to the Union and saw
Alfredo Guerra, vice president of the Union, who told him
he had not been accepted because he was "subversive."8
Santos took his pictures and his medical certificate and
again departed for the Board. The complaint does not
allege discrimination against Santos during this period
except for February 8. On February 8, however, Santos had
his temporary permit and the only evidence of discrimina-
tion is the fact that he was not selected to work on the
Portland on that date. I shall therefore reject the General
Counsel's allegation of discrimination against Santos on
February 8.9 Santos testified that his temporary card was
not returned to him following employment on the Detroit
on a date best fixed as February 17. (It was the custom for
the union agent to take the union card when the
longshoreman was hired for a ship and return it when he
collected his pay at the completion of the loading.) Santos
stated that he was told his card was old and he needed a
new one.10
On February 18 Santos shaped up for the Portland but
was not hired. The record does not indicate that any men
were hired from the shapeup on that day. I therefore find
no discrimination. (The General Counsel conceded that
there was no proof of discrimination on March 4 so that
allegation is likewise eliminated.
On March 12 Santos testified that he shaped up for the
Tampa, a mechanized ship." Before shaping, Santos saw
the hiring boss, Maldonado, at his office in the yard and
asked for work.12 Maldonado told him that he could not
pick anyone without a card and that he picked from outside
(at the shapeup). At the shapeup Santos was not picked
although longshoremen who had cards were selected from
the shapeup to fill the required complement.'' (Santos
referred to a detail of seven men who were selected and who
had union cards but did not explain what he meant by
"detail.")
On March 15 Santos shaped up for the Charleston where
Facundo was hiring. He stated that after Facundo
exhausted his regular and suplente lists he hired from "over
the fence" or shapeup. Santos believed that all men hired
from the shapeup had special (temporary) union cards
because "they were new fellows that I do not even know."
Santos also testified that he spoke to Facundo before the
shape but did not disclose the conversation.
On March 16 Santos shaped for the Anchorage but the
two old and one new gangs were filled by regular members.
There is no evidence of discrimination in the hiring for the
Anchorage under the theory of the General Counsel.
On March 17 Santos shaped up for the Newark. Facundo
did the hiring and, according to Santos, after filling his
gangs and exhausting the suplente list, hired four men from
the shapeup. Santos was not included. There is no evidence
as to the union status of the four men hired.
On March 22 Santos finished loading on the Detroit and
shaped up for the Tampa. Fifteen men were hired from the
Rio Jaina, another Sea-Land ship, but the testimony does
not disclose how they were hired. Complement for the
Tampa was filled from gangs from the Rio Jaina. I find no
evidence of discrimination against Santos on the 22d.
On March 26 Santos shaped up for the Anchorage where
Julio Roman was hiring. Before shaping up Santos saw
Roman in his office and was told that there would be hiring
from "outside" and that if he did not have his card he could
not work. While the testimony as to the hiring on that day is
confusing (as is most of Santos' testimony), it appears that
12 men were hired from the shapeup but Santos was not.
Roman testified that he never told Santos he could not be
5 Santos was also known along the waterfront as "Familia" and is so
referred to in the record with some frequency.
6 Company witnesses denied that Santos had worked on the mechanized
ships and alleged that his lack of experience disqualified him from
consideration when hiring for those ships.
' Santos did, during at least part of this time, belong to another ILA
local.
6 Guerra denied speaking with Santos on that date and denied telling
him he had not been accepted.
9 For the same reason I reject his claim of discrimination against Santos
on February 16 when Santos still had his temporary permit.
10 Santos testified that after his card was picked up he went to the union
office to get a new one and was told by Alfredo Guerra, vice president,
that he could not have one because he had a case pending with the Board.
(The first charge filed against Sea-Land by Santos was filed April 2.)
Although Guerra denied that he told Santos he was not acceptable to the
Union he was not interrogated specifically as to this incident. The
testimony therefore stands uncontradicted.
II Except for testimony as to the Detroit all testimony relates to
mechanized ships.
12 Santos testified that he always went to the office of the hiring boss
before the shapeup to inquire about employment. The Company had
posted a notice at its offices forbidding this practice. (Res. Exh. 10-A and
10-B.)
13 Maldonado did not appear as a witness.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hired because he did not have a union card. He also
testified that Santos normally worked on break-bulk ships.
Respondent offered records which indicated the Anchorage
was not in port on March 26; it did not arrive until March
27. I attach no significance to this disparity in dates.
On April 1 Santos shaped for the Seattle but did not
know the name of the hiring boss. Twelve to 15 men were
picked from the shapeup but he was not picked. As to their
cards, Santos testified, when asked how he knew the boss
asked for special cards.
Because those were the ones that went in-because there
are a lot of young men that the president has authorized
to have cards and since I know all the stevedores the
new ones I do not know but I know they have special
cards.
On April 3 Santos went to the warehouse where a
supervisor identified as Huango was doing the hiring.
According to Santos, Huango had a list of 30 names and 27
responded to his call and needed 4 (sic) more. Santos
testified:
... and he (Huango) called the attention of the
(union) delegate-Mr. Cachon-to give me an opportu-
nity and he told me, "Wait, Familia" but I noticed that
Huango left without the three men and he did not pick
me and they have done this to me .. . .
Santos stated he knew there were 30 names on the list
because he saw it in Huango's hand and the names were
numbered. After Huango left Cachon "called some new
men that had come around there who are not members of
the Union and they wanted work." Cachon picked three
men with social security cards but did not pick Santos. I
make no finding of discrimination in view of the confusion
in the testimony and in view of the fact that Cachon did
select, if I read the testimony correctly, three men who had
social security but not union cards
On April 6, Santos shaped up for the Mayaguez where
Facundo was hiring. After he exhausted his regular gang
and suplente lists Facundo called for men from the
shapeup. Santos testified that he asked for "cards" but he
did not specify what type of cards. Santos was not picked
although he spoke with Facundo about 1 hour before the
shape, presumably to ask for work. (Santos did not relate
the conversation.)
On April 7, Santos shaped for the Mobile where Facundo
was again the hiring boss. Again he stated he saw Facundo
before the shapeup but did not relate the conversation.
Facundo picked two regular gangs and a "crazy" gang and
"when they need some more the (union) delegates
themselves call them using patronage." He also testified
that when Facundo selected men the union delegates
"helped him to pick the best people that were closer to
them." Santos was not picked.
On April 11, Santos shaped for the Seattle and before the
shape saw Facundo in his office Facundo told him that as
long "as there were (men with) cards there was no chance
for social security cards." Santos testified that after
completing the old gangs and a crazy gang Facundo called
for men from the shape but did not pick Santos. Facundo
testified that he never told Santos he could not be hired
because he did not have a union card or refused to hire him
because he did not have a card. Union delegates Cholina
and Guerra were present at this shapeup. Santos further
testified that the Albert also came in on the I1th but that
Albert Rodriguez, hiring boss, told him, "If you do not have
a card you do not come in." Santos stated he (Santos) knew
Rodriguez was going to pick 15 men from the Rio Jama list
and 9 men from the shapeup and that these men were
called, Santos again omitted.14
On April 21 the Albert again came in and Facundo picked
one gang of 15 men from the regular list. He then picked 9
men from the shapeup but did not pick Santos. The
testimony does not establish whether the men selected had
union cards.
On April 22, the Baltimore was loaded but Santos was late
and missed the shape. Facundo picked two regular gangs
and one crazy gang for the Seattle which was also loading
and Santos shaped for the Seattle. One gang was picked up
from the Baltimore and then Facundo picked 21 or 22 men
to form the crazy gang. While much of the testimony
respecting the hiring for the Seattle is incomprehensible,
Santos did state that seven or eight men were picked who
had cards (presumably after the regular gang had been
picked) and that he was the only one not selected. He also
testified that when he showed Facundo his social security
card Facundo told him he wanted a union card.
On April 26, the Detroit was in port. Santos had
previously testified that during 1969 he had worked
regularly on the Detroit as a member of the gang of
Frederico Libran, a hatch boss, and that he worked without
a union card.15 On the 26th, Libran did not pick his gang
but told Lopez Pinto to pick it. Lopez ordered the men to
get in line and then told them, "Those who have cards come
on-the ones with social security cards stay out." Santos
then told the union delegate, Papo Quiles, that he was going
to work because he had worked on the gang with a social
security card. Quiles told him he had nothing to do with it
and Santos left the line when Lopez took him off it. Santos
then went to Libran who was acting as "bosso" and told
him Lopez did not want him to work. Libran said he was
sorry and Santos then went to the hatch foreman for the
number 4 hatch, Peligro, and told him that Lopez did not
want him to work. The interrogation was not completed as
to Peligro. Santos did not work.
On May 5 the Detroit was again in and Lopez was again
hiring for the number 5 hatch and Libran was acting as
"bosso." Seven men for the regular hatch gang were
present, including Santos, but Lopez did not pick him. He
filled the gang from the six other regulars and from other
men at the shapeup, asking them for their cards.
Libran testified that Santos had worked for him "many
times" on the Detroit, that he did not know if Santos
belonged to the Union, but that Santos had always worked
with his social security card as identification. As to whether
Santos was a member of his regular gang, Libran stated,
"Not exactly and yes." He never told Santos he could not
14 Rodriguez did not appear as a witness Although subpenaed by the 15 Respondent 's witnesses testified that Santos was generally employed,
General Counsel it was stated by the Company's counsel that he was ill when employed, on the Detroit
and would be unavailable for 9 days
SEA-LAND SERVICE, INC.
work because he did not have a card and always hired him
on his social security identification.
Lopez testified that he substituted for Libran as boss of
hatch number 5 on the Detroit and that he had worked for
Libran during 1970. He stated he never took Santos out of
the gang but that he had refused to select Santos when his
gang was complete. 16 Santos , according to Lopez, was not a
regular member of the number 5 gang.
On May 11 the Baltimore was in and Lorenzano was
hiring boss. He hired two gangs from the regular list and
part of one gang from the suplente list which left him,
according to Santos, 10 to 12 men short. (Santos had seen
Lorenzano before the hiring and had been told that as long
as there were men with cards he could not be picked.) He
picked these men from the shapeup, asking for cards. He
did not pick Santos.
On May 14 he shaped again for the Detroit and Lopez
"did not want to pick me up."
On May 20 Santos shaped for the Baltimore. where
Rodriguez was hiring.After filling his complement from the
regular and suplente lists he was still seven men short.
Although Rodriguez picked from the shape he did not pick
Santos.
On May 30 Santos again shaped for the Baltimore..
Rodriguez was hiring and after picking from the regular list
he picked a third gang from the shapeup. He did not pick
Santos, who was present and showed his social security
card.
On May 31 the Detroit was back but there was no cargo
for the number 5 hatch. Santos went aboard and spoke to
the winch operator (not a supervisor) of the number 4 hatch
whose brother was picking the "shore" gang. He picked
four men who were not regular members of any gang but
did not pick Santos. Santos went back to see the winch
operator who spoke to his brother who told Chita, or
Daniel, the winch operator, that he knew what was going
on.
In support of the testimony of Santos the General
Counsel called Vincente Mattei who worked as a regular in
the number 5 hold of the Detroit but also shaped for
mechanized ships. Testifying to the hiring practice at the
shape, Mattei stated that the regular list was called first,
then the supplementary list, and then they asked for (union)
cards and, if there were no cards, asked for social security
cards. (His testimony on this point is confusing, however,
because Mattei also testified that when the lists were
finished the hiring boss called for social security cards and
that the men in the shapeup had no union cards.) At the
Detroit the regular gangs were picked and then the hatch
bosses took anyone who was around. This hiring was
observed by union delegates and if a longshoreman without
a union card was picked he would be taken off the line and
a union card man picked. Mattei gave no specific testimony
as to any such incident. On cross-examination, he testified
that Santos had been working at the Detroit and had
worked without a union card. Again, neither the time nor
the circumstances were identified.
Victor Santiago, a longshoreman, testified that he had
worked the mechanized ships and also the Detroit. He also
'ti The men lined up for the shape at the Detroit and the foreman would
go down the line picking men in order until he had all he needed.
17
testified that at the mechanized ships the regular list was
called first, then the suplente list, then the men with union
cards and then the men with social security cards. Although
union delegates were always present at the hiring they did
not intervene.
At the Detroit, Libran filled his gang, when regulars were
absent, from the shapeup. Social security card applicants
were employed at the Detroit. He also testified that once he
had seen Santos taken from the hiring line at the Detroit
because he did not have a union card. (No further
testimony or explanation was given.) Respecting the
delegates Santago testified that among their duties was to
see what union members be hired first. On
cross-examination Santiago admitted that one of the
regular members of the number 5 gang, "El Chon," worked
with a social security card only.
3. Paragraph IX of the complaint
Paragraph IX of the complaint alleges, in substance, that
on March 31 Rodriguez told Santos that he was not being
given work because the Union had so ordered. It is alleged
that this violated Section 8(a) (1).
Santos testified that on March 31 he asked the paymaster
for an accounting of his earnings on the Detroit. He was
told to see Rodriguez and when he saw him Rodriguez told
him, "Keep your mouth shut because that is why the union
does not want that you be given work because you are
always defending others." (As stated, Rodriguez did not
appear in the proceeding.)
The complaint does not allege that this statement violated
Section 8(b)(I)(A) and, since Rodriguez had no authority to
bind the Union, no violation of that section is found.
Ventura Rivera testified that he had been a longshore-
man for 17 or 18 years, was a member of the Union, and at
Sea-Land he worked on the Detroit, and that on March 31
he heard part of an argument between Santos and a
supervisor whom he identified as "El Bobon" (the fool). El
Bobon told Santos the Union was not giving him any work
because he was arguing.
Victor Santiago also testified that he heard the argument
between Santiago and Rodriguez, whom he identified as
"El Bobon," and that Rodriguez told Santos the Union did
not want to give him work because he talked too much.
Santos answered that he was glad Rodriguez was telling
him that.
B. Conclusions
1. The deduction of dues
The General Counsel and the Company stipulated, supra,
that the Company, during a period from September 1969 to
the time of the hearing, deducted $12 from moneys earned
by Santos in the employ of the Company and remitted this
sum to the Union as union dues. Santos was not a member
of the Union during this period nor did he sign any
authorization for such deductions. Accordingly, I find that
by such action the Company violated Section 8(a)(1) and
(2) of the Act.
according to Lopez.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the Union did not join in the stipulation and there
is no evidence to establish that the Union required the
Company to deduct such dues and remit them to it I find
that the Union did not violate Section 8 (b)(1)(a)
2. Discrimination as to Santos
Before reviewing the testimony respecting Santos there is
one point which may require clarification, i e , the status of
the "suplentes" or the longshoreman on the supplemental
lists Paragraphs VI, VII, and IX of the complaint refer to
the refusal to hire Santos as a suplente or substitute
longshoreman Again in his recommended order the
General Counsel refers to substitute or suplente longshore-
man The term suplente longshoreman, as used by the
Company and the Union, refers to longshoremen who had
the requisite 800 hours of employment with the Company
and were included in the bargaining unit They stood, as to
hiring, in the same class as the so-called regular gang
employees except that they had not become regular
members of any specific gang They were, however, entitled
to the same preference in hiring as regular gang members.
This case, at least as I and the other parties understood it,
was tried on the theory that the discrimination against
Santos occurred when the regular gang members and the
required suplentes had all been hired and it was necessary
to hire casuals. The discrimination alleged is that Santos
was not hired as a casual employee until after all casual
employees with union cards were hired Harry R Martin,
counsel for the General Counsel, stated on the record:
Among these (casual) groups anybody with a monthly
(union) card first time at the piers has a monthly card
from the union, not a membership card, yet he is hired
with preference to those who just have a social security
card-that is a closed shop-that is the General
Counsel's contention
Those who have monthly card issued by the union are
given preference to work as substitutes whenever
vacancies occur among those who work on the
mechanized ships or the gangs of the hatch tenders (on
break-bulk ships) these people use a list of the regular
gangs-that is a closed shop-that is our theory
The testimony of Santos is not only confusing but much
of it consists of opinions and conclusions without reference
to or substantiation by fact. It is also tainted by expressions
of Santos' hostility toward both the Company and the
Union The testimony of the witnesses of the Respondents,
although not confusing, is marked by a similar lack of
substantiation consisting, as it does for the most part, of
blanket denials
For clarification the incidents relied on to establish
discrimination will be divided into three classifications
A. Those incidents in which there is no evidence of
discrimination nor from which discrimination may reason-
ably be inferred.
B Those incidents as to which discriminatory motive
rests on statements allegedly made by company agents to
Santos and which, if Santos is credited, establish the
allegations of the complaint.
C. Those incidents concerning which there is no direct
evidence of discrimination but in which discrimination, in
the light of other testimony, may reasonably be inferred.
As to A, these incidents occurred on February 8 and 16,
dates on which Santos had his temporary card, March 4,
stricken by the General Counse: from the complaint;
February 18 and March 16 and 22 when no men were hired
from the shapeup, April 3, when men with social security
cards were hired from the shapeup, and May 31 when there
was no cargo for the hatch on the Detroit where Santos
usually worked. It is recommended that the complaint be
dismissed as to the allegations relating to February 8, 16,
and 18, March 4, 16, and 22, April 3, and May 31.
As to B, the evidence rests almost entirely on the
testimony of Santos relating to his prehire conversations
with the hiring bosses at their offices. On March 12 Santos
testified that before shaping he asked the hiring boss,
Maldonado, for work on the Tampa and was told that he
(Maldonado) could not pick anyone without a card 17 Since
Maldonado was not called this testimony is uncontradicted.
This was the only occasion on which Maldonado was the
hiring boss.
On March 26 Santos shaped for the Anchorage and
Roman was the hiring boss. Santos testified that before the
shape he saw Roman at his office, asked for work, and was
told that if he did not have a card he could not work.
Roman testified that when it was necessary to go outside
the lists for employees they usually hired people that "are
efficient in their job." He knew Santos but never denied
him employment because he did not have a card nor told
him he could not work because he did not have a card
Santos shaped for several ships on which Facundo was
the hiring boss, all without success. On March 15 and April
6 Santos saw Facundo before the shapeup but did not
testify what was said in the conversation On April 11,
however, when he saw Facundo in his office he was told
that as long as there were men with cards there was no
chance for men with social security cards. On the same day
he was told by Rodriguez, the hiring boss of the Albert, that
if he did not have a card he could not work. Facundo
denied Santos' testimony and Rodriguez was unavailable.
Again on April 22, Santos was told by Facundo at the
shapeup for the Seattle that he (Facundo) wanted union
cards and not a social security card.
On April 26, the Detroit, which was the ship Santos
regularly worked, was in port and Lopez who was hiring in
place of Libran, the regular number 5 hatch boss, told the
men with cards to come in and those with social security
cards to stay out. Libran's testimony respecting the regular
employment on the Detroit was ambiguous but he did
testify that he hired Santos on the basis of his social security
card Lopez testified that he refused to hire Santos on April
26 because his gang was complete He also testified that
Santos was not a member of the number 5 hatch gang
Mattei and Santiago testified that Santos worked on the
17 In review of the testimony "card" will be understood to mean unless
a social security card is specified, a membership or temporary card in the
Union
SEA-LAND SERVICE, INC.
Detroit without his card and that men with social security
cards were employed on that ship.18
On May 11 Lorenzano was hiring for the Baltimore and
Santos testified that he saw Loenzano before the hiring and
was told that as long as there were men with cards he
(Santos) could not be picked. Santos was not selected.
Lorenzano was not called as a witness.
According to Santos six hiring bosses, Maldonado,
Facundo, Roman, Rodriguez, Lorenzano, and Lopez told
him, on separate occasions, that he could not be hired
unless he had a union card. Two of these bosses, Facundo
and Roman, denied the allegations both specifically and
generally. Two others, Maldonado and Lorenzano, did not
appear and Rodriguez was unavailable. Lopez' testimony
was confined to the Detroit and he testified, after denying
that he had ever removed Santos from the line because he
did not have a union card (he testified he had completed his
pick on that day), that Santos worked frequently on the
Detroit and always with a social security card. There were
no records introduced to show how often Santos worked
the Detroit during the period of alleged discrimination but
Santos' testimony implies that he worked from time to time.
The issue, as I see it, is almost exclusively confined to
credibility since neither the General Counsel nor the
Company sought to introduce any records of employment
(except for Santos' notebook, used to refresh his recollec-
tion) nor the testimony, with the exceptions noted, of
disinterested witnesses. The record does not sustain a
finding of general discrimination against all casual
employees who did not have any union cards for such a
finding would be based solely on Santos' opinion
testimony. Granting that the record provides little support
for a credibility finding favoring either party I accept
Santos' testimony insofar as it applies to discrimination on
the mechanized ships.19
As to the Detroit I do not find that the General Counsel
sustained his burden of proof. There is uncontradicted
testimony that Santos did work that ship (according to
Santos he was a regular gang member) and that other
'5 Santiago also testified that he had once seen Santos taken off the
hiring line at the Detroit because he did not have his card. No explanation
of the circumstances was given.
19 In making this finding I have considered the testimony of Facundo
that it was seldom necessary to hire casuals for the mechanized ships and
also his testimony that Santos ever worked on mechanized ships. Roman
testified that Santos worked the mechanized ships "sometimes" Santos
testified that until 1970 he frequently worked mechanized ships. This facet
of the major issue also rests on credibility.
20 1 am in disagreement with the approach to the credibility issue taken
by Chairman Miller in his dissent (a dissent does not usually warrant
comment but the Board is undergoing another transition period and
today's dissent may well be tomorrow's law) in Mark Twain Industries, Inc.,
185 NLRB No. 101, in which he states:
... and virtually all of the other findings rest solely upon
uncorroborated testimony of the party in interest, which is consistently
and repeatedly credited, over Respondent's corroborated denials, to a
point where the findings are, in my opinion, highly questionable. I
would dismiss the complaint in its entirety.
In Mark Twain Trial Examiner Kuskin made a painstaking and
convincing analysis of the credibility issue which will almost inevitably,
where extrinsic evidence supporting either side is lacking, be determined by
opinion . In such cases there is no substitute for personal observation of the
witnesses while under oath and, while errors will be made, they are less
likely to be made by an experienced Trial Examiner who has heard the
case ( the phrase " trier of the facts" is not one of derogation ) than by an
ipsi dixit conclusion formed from a printed record. If the credibility finding
19
longshoremen worked it with only social security cards.
Again the issue is one on which it is impossible to reach a
conclusion which is free from reasonable doubt. I simply
find that the testimony as to the Detroit, taken in toto, fails
to establish an inference of discrimination. As to the
mechanized ships a different conclusion, accompanied by
the same doubts, has been reached.
Having found that the Company discriminated against
Santos with respect to the specific incidents related under
classification B, I would also find the failure to hire in the
classification C incidents stemmed from the same discrimi-
nation. The discriminatory pattern was established, if my
evaluation is correct, by quoted statements of company
representatives and it would be improbable that the same
statements would be made each and every time there was a
failure to hire Santos. On these occasions Santos appears to
have no conversations with the hiring bosses-he was
merely overlooked in the selection of casuals. The General
Counsel's case is weakened by the fact there is a failure to
establish, in most incidents, whether any casuals without
union cards were employed but this is but another of the
gaping holes in the presentation of the case by all parties.
No Examiner likes to rely on the mere testimony of a
charging party that he appeared at a shapeup, waived his
social security card, but was not hired as the basis of a
finding that a respondent has violated the Act. This
reliance, in this case , rests solely on the testimony,
contradicted, of Santos.20
I find that Respondent Company violated the Act by
refusing to hire Santos on the following dates: March 12,
15, 17, and 26; April 1, 6, 7, 11, 21, 22, 25, and 26; and May
5, 11, 14, 20, and 30.
3. Violation of Section 8(a)(1)
In the context of the facts of this case I find that
Rodriguez' statement to Santos that the Union did not want
of a Trial Examiner reached after careful consideration and a weighing of
the testimony is to be set aside by the Board (and until recently the Board
was composed of members who had never participated in an unfair labor
practice hearing ) then the major function of the Trial Examiner 's role in
the administrative process has been usurped.
I also reject the suggestion that individual charging parties occupy a
special and inferior status as witnesses . A witness, regardless of his interest
in the proceeding, is either truthful or not and a truthful witness should be
credited even if he stands alone. No theory of credibility has been more
completely discredited than that of resort to a head count to determine the
issue . As any experienced Examiner knows corroboration is no touchstone,
particularly where the corroborating witnesses share the respondent's
interest or are subject to his command. Supervisors will generally
corroborate management and management will corroborate its supervisors
so that a united front of exculpatory testimony will be presented the
Examiner.
One last word . Those who have had experience in the Board's Regional
Offices where the spade work , and usually the most effective work , is done,
know that charges brought by a party and very specifically by an
individual are subject to close and continuous examination and scrutiny
and decision to issue complaint is not reached until an independent
investigation determines that the party has at least established a prima facie
case . If the Trial Examiner 's subsequent decision shows due consideration
of the credibility issues then a dismissal based on lack of corroborative
testimony would appear to frustrate the purposes of the Act and the
procedures established to effectuate them.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him to work because he talked too much violated Section
8(a)(1). (The exact words used I find immaterial.)21 Those
facts are the contractual relationship between the Company
and the Union which embraced a union shop, a clause
which, while perfectly lawful, necessarily impresses employ-
ees with the prestige and authority of the Union and the
practices found herein whereby the Company discriminat-
ed against Santos because he was not a member of the
Union. Although the statement was hearsay as to the Union
it was made by a company hiring boss and inevitably
suggested to the employee that work might be difficult to
obtain because he was not in favor with the Union and that
the Company, as a consequence, might be less willing to
hire him The finding is tenuous but tenuous findings are
commonplace in labor law.
4 Discrimination by the Union
The complaint alleges, among other charges against the
Union, that the Union caused the Company to discriminate
against Santos by denying him employment as a longshore-
man because he was not the holder of a union card or a
temporary permit from the Union.
There is no direct evidence that any union officer or
agent ever requested the Company to refuse to hire Santos
because he did not have either union card. It is true that
union delegates were present at all the shapeups but there is
lacking evidence that they participated in the selection of
the longshoremen except on a few occasions.22 These
include Santos' testimony relating to April 7 that the union
delegates, Cholina and Guerra, placed "people they know"
when personnel was lacking and that on that date they
helped Facundo pick "the best people that were closer to
them." I am unwilling to make any finding on testimony so
closely approaching total incomprehensibility as this On
the other hand there is the testimony of Santos, if I
understand it correctly, that a union delegate hired three
longshoremen with social security cards at the warehouse
on April 3. He also testified that when he protested to a
union delegate at the Detroit that he had not been hired he
was told that the delegate had nothing to do with it.
Mattes, a witness called by the General Counsel and who
worked on the Detroit, testified that longshoremen without
union cards would be taken off the shapeup line at the
Detroit by the union delegates but his testimony was
supported by no specific reference and no reference to
Santos. Mattei admitted Santos worked the Detroit without
a card.
Santiago testified that at the mechanized ships the union
delegates did not intervene in the hiring. As to the Detroit,
Santiago testified that longshoremen with social security
cards were hired but that the duty of the union delegate was
to see that union members were hired first. (Whether
Santiago was referring to union members who were covered
by the contract and who were entitled to preference or to
union members who were casuals was not disclosed.) This
testimony is unsupported by facts. He also testified that he
had seen Santos taken off the hiring line at the Detroit
because he did not have a card. (Santos testified that it was
21 Having listened to the testimony of Santos for 2 days I find it
completely credible that such a statement was made
22 The record is silent as to why the delegates were present There are.
Lopez who took him off the line and there is no implication
that this was requested by a union delegate.)
The only evidence tending to support the charge of union
discrimination is the fact that the union delegates were
present when the Company hired at the shapeup. Associa-
tion may be sufficient proof of guilt in the political milieu
but it has yet to find acceptance in juridical proceedings.
Nor can I find that the Company and the Union had any
unlawful arrangement or practice whereby in the hiring of
casual or extra longshoremen preference was given to those
longshoremen who had union membership cards or
temporary union cards as against those longshoremen who
had social security cards. This finding is based on a failure
of proof
It will be recommended that the complaint, insofar as it
alleges the Union caused the Company to discriminate
against Santos by denying him because he did not have a
union membership card or temporary union card, be
dismissed. It will also be recommended that the complaint,
insofar as it alleges the Company and the Union
maintained or gave effect to a practice or arrangement
whereby casual or extra longshoremen with union member-
ship or temporary union cards were given preference in
hiring as against longshoremen who had social security
cards, be dismissed.
IV THE REMEDY
Having found the Respondent Company has engaged in
and is engaging in certain unfair labor practices, it will be
recommended that it cease and desist from the same and
take certain affirmative action necessary to effectuate the
policies of the Act.
Having found the Company deducted moneys from the
wages of Santos and paid the same over to the Union for
union dues at a time when Santos was not a member of the
Union, and had not signed a written authorization for such
deductions it will be recommended that the Company
reimburse Santos for moneys so collected ($12) with interest
thereon at the rate of 6 percent per annum from the time
such moneys were deducted.
Having found that the Company discriminated against
Santos by denying him employment because he did not
have a union card or a temporary union card it will be
recommended that the Company make Santos whole for
any wages lost by reason of said discrimination together
with interest at the rate of 6 percent per annum and in
accordance with the Woolworth formula. The dates on
which I find said discrimination occurred are: March 12,
15, 17, and 26; April 1, 6, 7, 11, 21, 22, and 26; May 5, 14,
20, and 30.
Upon the findings and upon the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. By deducting sums of money from the wages earned
by Santos and by remitting said sums to the Union in
payment of union dues at a time when Santos was not a
of course, reasons related to the keeping of records which would require
that the Union know what longshoremen would be working on particular
ships but these reasons, too, in the absence of testimony involve conjecture
SEA-LAND SERVICE, INC. 21
member of the Union and had not signed a written
authorization for said deductions Respondent violated
Section 8(a)(1) and (2) of the Act.
2. By denying Santos employment on various dates
herein set forth because he did not have a union
membership card or a temporary union card, thereby
encouraging union membership, Respondent Company
violated Section 8(a)(1) and (3) of the Act.
3. By telling an employee the Union did not want him
to work because he talked too much, Respondent Company
violated Section 8(a)(1) of the Act.
4. Respondent Union did not violate Section 8(b)(1)(A)
and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record in this case and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER
It is recommended that the Respondent , Sea-Land
Service , Inc., its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Discriminating against Nicolas Santos Santos by
refusing to hire him as an extra or casual longshoreman at
the Company' s shapeup of casual longshoremen for
employment on its mechanized ships because he does not
possess either a membership card or a temporary work
permit in I.L.A. Local 1575, International Longshoremen's
Association, AFL-CIO.
(b) Rendering unlawful aid, assistance , and support to
I.L.A. Local 1575, by deducting and paying over to said
Union sums of money from the wages of Nicolas Santos
Santos for union dues in the absence of a written
authorization from said Santos obtained from him after the
expiration of the 30-day period provided in Section 8(a)(3)
of the Act.
(c) Interfering with , restraining , or coercing its employees
by telling them I.L.A. Local 1575 does not want them to
work because they talk too much.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Aet:
(a) Reimburse Nicolas Santos Santos for union dues
unlawfully deducted from his earnings since September 2,
1969, and remitted to I.L.A. Local 1575.
(b) Make Nicolas Santos Santos whole for any loss of
earnings , with 6 percent interest , he may have suffered as a
result of the discrimination practiced against him on the
dates heretofore set forth in "The Remedy."
(c) Post at its offices and places of business at Hato Rey
and San Juan , Puerto Rico, copies of the attached notice in
Spanish and English marked "Appendix." 23 Copies of said
notice, on forms to be provided for the Regional Director
for Region 24, shall, after being duly signed by an
authorized representative of Respondent, be posted by
Respondent immediately upon receipt thereof, and be
maintaned by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notice is not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 24, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.24
IT IS FURTHER RECOMMENDED that the complaint, insofar
as it alleges other violations of the Act by Respondent
Seat-Land Service , Inc., be dismissed.
IT IS FURTHER RECOMMENDED that the complaint, insofar
as it alleges violations of the Act by Respondent I.L.A.
Local 1575, International Longshoremen's Association,
AFL-CIO.
23 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, recommendations , and recommended Order herein
shall, as provided by Section 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. 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
24 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith."