Seaboard Terminal and Refrigeration Co.

National Labor Relations Board - Board Decisions

Dec 16, 1955

114 N.L.R.B. 1391 (N.L.R.B. 1955)

SEABOARD TERMINAL AND REFRIGERATION COMPANY 1391
All our employees are free to become or remain members of the above-named
,Union or any other labor organization. We will not discriminate against any
-employee because of membership in or activity on behalf of any such labor organiza-
tion.
INTERMOUNTAIN EQUIPMENT COMPANY,
Employer.
Dated---------------- By-------------,---------------------------------
('Reproseitative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Seaboard Terminal and Refrigeration Company and Interna-
tional Brotherhood of Longshoremen , AFL-CIO I
Local 976, International Longshoremen 's Association , Independ-
ent and International Brotherhood of Longshoremen, AFL-
CIO. Cases Nos. 2-CA-3836, 2-CA-3880, 2-CA-3197, -CA-4015,
2-CB-12377 2-CB-1258, 2-CB-1280, and 2-CB-1339. December
16,1955
DECISION AND ORDER
On May 20, 1955, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondents had not engaged in and were not engag-
ing in the unfair labor practices alleged in the complaint and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter
the General Counsel and the Charging Union filed exceptions and
briefs and the Respondents filed briefs.
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
Intermediate Report, exceptions and briefs, and the entire record in
these cases, and, finding merit in the exceptions, rejects the Trial Ex-
aminer's recommendation and adopts only such of his findings and
conclusions as are consistent with this Decision and Order.
1. The principal issue in these cases concerns the legality under the
Act of certain union-security agreements between the Respondents.
As set forth in the Intermediate Report, the Respondent Union,
Local 976, has represented the Respondent Employer's employees since
1938.1 Their December 22, 1953, contract, and all preceding con-
tracts, contained, inter alia, a clause which provided as follows : 3
IAs the AFL and CIO merged after the hearing in this case, we are taking notice of
the merger and amending the designation of the Charging Union accordingly
2 The Respondent Union, Local 976, was atTiliated with the AFL prior to September
1953.
The clause does not appear in its entirety in the Intermediate Report. Contrary to
the findings of the Trial Examiner, the record establishes that this identical clause was
contained in all contracts between the Respondents since before the 1947 amendments to
the Act.
114 NLRB No. 216.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer agrees to employ only members of the Union in
good standing and the Union agrees to furnish at all times the
necessary help to do the Employer's work.
Should the Union fail to furnish the necessary help, then the
Employer may hire such help as he may see fit, provided however,
that such hiring shall be temporary only, and any such employ-
ment shall terminate as soon as Union help is available.
On about April 8, 1954, the Respondents executed a memorandum
agreement dated March 15, 1954, purportedly changing the foregoing
clause to provide for a lawful union shop. The Trial Examiner
credited testimony that this memorandum agreement formalized the
substance of an oral understanding or agreement under which the
Respondents had been operating since about 1948. Thereafter, on
various dates in June, July, and August, 1954, as more fully set forth
hereinafter, various employees were laid off and threatened with layoff
for failure to pay dues to the Respondent Union, including dues Which
had accrued prior to March 1954.
The Trial Examiner found that the contract of December 22, 1953,
contained an unlawful union -security provision ; with this finding we
agree.' We do not, however, agree with his further findings and con-
clusions (a) that the unlawful provisions of the December 22, 1953,
contract have never been enforced; (b) that such unlawful provisions
had been effectively superseded by an oral agreement or understand-
ing providing fora lawful union shop; and (c) that, even though the
Respondents may have violated the Act by executing their December
22, 1953, contract, the violation was only technical and did not require
a remedial order.
As to (a), the record establishes, as found by the Trial Examiner,
that, at the instance of the Respondent Union, certain employees were
denied employment on various days in June, July, and August, 1954,
because they were delinquent in the payment of dues to the Respond-
ent Union and had refused to pay or to arrange to pay such delin-
quencies. In each case,5 the delinquencies included dues which had
accrued before the execution of the memorandum agreement dated
March 15, 1954. As the only contractual provision which required
membership in the Respondent Union as a condition of employment,
at the time such dues had accrued, was the foregoing illegal clause in
the December 22,1953, contract, we find that by requiring the payment
of such delinquencies as a condition of further employment, the
Respondents have enforced the illegal union-security provisions of
4 See Seaboard Terminal and Refrigeration Company, 109 NLRB 1094 , 1095 , in which
the Board found , in a representation proceeding , that this same contract exceeded the
limited union security permitted under Section 8 (a) (3).
With the possible exception of Theodore Frye, sometimes referred to in the record
as Faye, considered infra.
I
SEABOARD TERMINAL AND REFRIGERATION COMPANY 1393
their December 22, 1953, contract. , As to (b), it is well established
that the Board will not accept parole, evidence to establish the modi-
fication or recission of a written union-security agreements Con-
trary to the Trial Examiner, the fact that the parties may subsequently
have executed a written agreement allegedly embodying the substance
of their parole agreement does not serve to cure the infirmities of the
parole agreement and thereby give it retroactive validity. We find,
therefore, that at least until the execution of the memorandum agree-
ment dated March 15, 1954,' the Respondents maintained in effect the
unlawful union-security provisions of their December 22, 1953, con-
tract. We find, accordingly, as alleged in the complaint, that by
executing their agreement of December 22, 1953, containing unlawful
union-security provisions, and by maintaining in effect and enforcing
said agreement, the Respondent Employer has violated Section 8 (a)
(1), (2), and (3) of the Act, and that the Respondent Union has
violated Section 8 (b) (1) (A) and (2).8 We further find, as to (c),
that the violations by the Respondents were and are substantial,
rather than merely technical, and that the remedial order provided
for hereinafter will effectuate the policies of the Act.
2. We also disagree with the Trial Examiner's conclusion that the
memorandum agreement dated March 15, 1954, effectively cured the
unlawful union-security provisions of the December 22, 1953, contract.
This agreement, which is quoted in full in the Intermediate Report,
provides that "the following provision be and is hereby incorporated
into the [December 22, 1953, contract] in lieu of any conflicting pro-
visions to the contrary." [Emphasis supplied.] By failing to iden-
tify which, if any, of the clauses of the contract were thereby to be
amended or deleted, the agreement lacks the specificity required to
cure the illegal clause,9 and accordingly did not validate the preexist-
ing agreement. In addition, the memorandum agreement itself fails
to accord the required 30-day grace period to old employees who were
not members of the Respondent Union.1° For such employees, the
agreement requires membership as a condition of employment "on and
after the thirtieth day from the date hereof." [Emphasis supplied.]
No evidence was offered that the phrase "the date hereof" was intended
to mean anything other than the date set forth on the face of the agree-
9 See Jersey Contracting Cap , 112 NLRB 660, in which the Board declined to accept
parole evidence to establish the modification of a written union -security agreement sub-
stantially the same as that involved herein, and to which the Respondent Union herein
wds also a pasty See also the cases cited in footnote 3 of the Ter,tey Contracting case
v The validity and effect of this agreement is considered infra.
9 Ebasco Services . Incorporated , 107 NLRB 617
9H. B. 2forgan Painting Contractor , 111 NLRB 395, 402, Heating , Piping and Air
Condstioning Contractows , et at , 102 NLRB 1646, 1647, Red Star Enpvr's Linea,, 9
NLRB 127, enfd 196 F 2d 78 (C A. 2).
39 The Respondents contended that the]e were many old employees who were not mem-
bers of the Respondent Union and the record does not refute this contention
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, March 15, 1954. As this agreement was executed after that
date, it clearly failed to accord such Itonmembers the required 30-day
grace period following the date of its execution. Moreover, this agree-
ment was interpreted and applied to require, as a condition of em-
ployment, the payment of dues which had accrued during the 30-day
period immediately following its execution. As this agreement, as
written and applied, fails to conform to the requirements of Section
8 (a) (3), we find, in accordance with the contention of the General
Counsel at the hearing and in his exceptions," that the Respondents
further violated the Act by entering into, maintaining, and enforcing
the memorandum agreement dated March 15, 1954.12
3. The record establishes, in substantial accord with the findings of
the Trial Examiner, that the Respondent Employer, at the insistence
of the Respondent Union, denied employment to the following em-
ployees on the days indicated, because of their failure to pay dues to
the Respondent Union for the periods indicated :
Employee Employment denied Dues delinquency
Louis Piscopo --------------------------------------- June 21, 1954_-__________ 5 months
William Davis--------------------------------------- July 13 and 15, 1954 ----- 6 months
Rhody Busti13........................................ August 12,1954 ---------- Since December 1953
John Popek ------------------------------------------ ----- do ------------------ Since November 1953
Joseph B Paul---------------------------------------- -----de ------------------ Since August 1953
Rosser Wright------------------------ ------- -----do----------------- Since December 1953
Theodore Frye --------------------------------------- -----do------------------
(14)
As there was no valid union-security contract in effect requiring the
payment of such dues as a condition of employment we find, contrary
to the conclusion of the Trial Examiner, that by the foregoing con-
duct the Respondent Employer discriminated against the above-named
employees in violation of Section 8 (a) (3) and (1) of the Act, and
ii Although the complaint did not allege the execution of the agreement as a violation
of the Act, the Respondents relied on its provisions as a defense to the discrimination
alleged therein The legality of the agreement was therefore put in issue by the Re-
spondents, and the facts with respect thereto were fully litigated Pacific Intermountain
Express Company, 107 NLRB 837 , 845; Eiclileay Corporation , 110 NLRB 1295, 1296
As the original charges alleging discrimination against employees for failure to maintain
membership in the Respondent Union were filed and served less than 6 months after the
execution of this memorandum agreement , we find no merit in the contention that the
6-month proviso to Section 10 (b) of the Act bars consideration of the legality of such
agreement Pecheur Lozenge Co, 98 NLRB 496, 497 , enfd as mod 209 F 2d 393
(C A 2)
12 Cf Whyte Manufacturing Company, Inc . 109 NLRB 112 3 In view of our findings
herein, we deem it unnecessary to consider the parties' contentions or the Trial Examiner's
eomments relative to the doctrine of Midwest Pipinq and Supply Co . Inc, 63 NLRP. 1060,
or the cases construing and applying.that doctrine
13Contiaiv to the findings of the Trial Exaniinei, the record establishes that Busti,
1'opek, Paul , Wright, and Fi ye each lost a full day's wort:
u4 Although the record establishes that Fiye was denied employment because he was de-
linquent in the pivment of dues to the Respondent Union , there is no evidence as to the
pesiod of his delinquency
SEABOARD TERMINAL AND REFRIGERATION COMPANY 1395
that the Respondent Union caused such discrimination in violation of
Section 8 (b) (2) and (1) (A).15
4. The record further establishes and we find 16 that the following
statements were made to the Respondent- Employer's employees by
officers and agents of the Respondent Union :
(a) On June 18, 1954, Union Steward Jimmy Walsh told Louis
Piscopo that if he did not pay Walsh $3 that day, and $3 a week until
his 5 months' arrears in dues were paid up, he was not going to be put
to work; that when Piscopo refused, Union Business Agent Angus
MacLeod told him, "Well, you ain't going to get hired anymore."
(b) About the second week in July 1954, Walsh told employee Wil-
liam Davis, who was 6 months' in arrears, that if he did not pay his
dues he would be "knocked off."
(c) On August 13, 1954, Union Secretary-Treasurer Frank Baffa
asked employee John Behan, who was in arrears since March 1954,
whether he knew he was behind in his dues, and told Behan if he did
not pay he would be "knocked off." 17
The record also establishes and we find that the following statements
were made to its employees by officers and agents of the Respondent
Employer :
(a) During the month of August 1954, Superintendent Christian
Haeni told employees Wright, Popek, Gonda, and Brenyo that the
Union would have them laid off if they did not pay up their dues and
the Employer would'not be able to prevent it, but would lend them the
money if they did not have it.
(b) In August 1954, Head Timekeeper Stephen Baker told em-
ployee Julian Rice that Baker would hate to see him lose any time,
but he was supposed to be suspended unless he paid up his dues.
(c) During August 1954, Foreman Anthony Headman told em-
ployees Paul, Busti, and Popek that if the Union pulled them out for
not paying their dues, the Employer would not be able to help them.
The Trial Examiner found that certain of the foregoing statements
Were made. He concluded, however, that they were not unlawful in
substance because they were attempts to enforce the provisions of
union-security agreements which he had found to be lawful. As we
have found that such union-security agreements were unlawful, we
•15 Even assuming , arguendo . the validity of the memorandum agreement dated March
15, 1954, the record clearly establishes, with respect to all of the above-named employees
except Frye , that they were discriminated against because of their failure to pay dues
which had accrued before the payment of dues might lawfully be required pursuant to
that agreement.
14 Except as indicated , these findings are based on the uncontradicted testimony of the
employees involved.
17 Although Baffa denied this conversation with Behan , the Trial Examiner accepted
Behan's version, and we hereby adopt this credibility finding The record contains addi-
tional testimony that Baffa made similar statements to employees Gonda and Rico, Baffa
denied making such statements , and the Trial Examiner did not resolve these conflicts.
Under the circumstances of these cases, and as any additional findings would merely be
cumulative , we deem it unnecessary to resolve such conflicts.
387644-56-vol 114-89
1396 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further find that by virtue of the foregoing statements, threatening
discrimination for failure to pay dues to the Respondent Union, the
Respondent Union violated Section 8 (b) (1) (A) and the Respond-
ent Employer violated Section 8 (a) (1).18
5. As more fully set forth in the Intermediate Report, the complaint
alleges that the Respondents violated the Act by', executing, maintain-
ing in effect, and enforcing a contract clause conditioning payment of
welfare benefits by the Employer on membership in good standing in
the Respondent Union on the date of accrual i of the benefits. As
no exception was taken to the Trial Examiner's finding that this pro-
vision was never enforced, we adopt this finding pro forma. The
General Counsel does except, however, to the failure of the Trial Ex-
aminer to find that the Respondents violated the Act by executing this
provision and retaining it in their contract.19
The most recent contract containing this clause was executed on
December 22, 1953. The allegation that this clause was illegal was
first made in the complaint, which issued on November 29, 1954, more
than 6 months after the execution of that contract, and the allegations
in the charges in these cases do not relate to the welfare plan clause.
Under these circumstances, the' Board is barred by Section 10 (b) of
the Act from finding a violation with respect to the execution of the
welfare plan clause.20
On the other hand, the Board finds, merit in the General Counsel's
contention that the mere retention of this discriminatory clause in the
contract during the 6-month period immediately preceding the issu-
ance of the complaint herein acted as a restraint upon employees desir-
ing to refrain from union activities within the meaning of Section
7 of the Act. We therefore find that by retaining this provision in
their contract, the Respondent Employer violated Section 8 (a) (1)
and the Respondent Union violated Section 8 (b) (1) (A).21 How-
ever, in the absence of evidence that the Respondents enforced this
unlawful provision, we do not find that they otherwise violated the
Act with respect thereto.aa
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, occurring in con-
nection with the operations of the Respondent Employer described in
's We reject the Trial Examiner's recommendation that the charges in Cases Nos.
2-CA-4015 and 2-CB-1339 be dismissed . These charges , filed and served on October 21,
1954, alleged as violations of the Act the coercive statements found hereinabove to have
been made in June, July , and August , 1954. The charges , accordingly , were timely filed.
'B There is no contention that the agreement dated March 15, 1954, was intended to,
or did , modify the welfare provision
20 Eichleay Corporation,410 NLRB 12'95, 1297.
n See Local 140, Bedding , Curtain & Drapery Workers Union, 109 NLRB 326, 329 ;
Jandel Furs , 100 NLRB 1390, 1392-1393.
za Jandel Furs, supra , 1392; Convatir, A Division of General Dynamics Corporation,
111 NLRB 1055, 1057.
SEABOARD TERMINAL AND REFRIGERATION COMPANY 1397
section I of the Intermediate Report, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, • and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondents engaged in the unfair labor
practices set forth above, we shall order that they cease and desist
therefrom and that they take certain affirmative action designed to
effectuate the policies of the Act.
We have found that the Respondents violated the Act by executing,
maintaining in existence, and enforcing the illegal union-security
provisions of their December 22, 1953, contract, and their memoran-
dum agreement dated March 15, 1954, and by maintaining in existence
an, unlawful condition with respect to the welfare plan provisions
of their contract. We shall therefore order the Respondents to cease
,and desist from continuing in force or giving effect to the unlawful
provisions of the foregoing contract and memorandum agreement, or
any extension or renewal thereof, or agreeing to any other bargaining
agreement requiring membership in the Respondent Union either as
a condition of employment except as authorized by Section 8 (a) (3)
of the Act, or as a condition of receiving welfare benefits from the
Respondent Employer. However, as the Respondent Union has, since
the events involved herein, been certified by the Board as the repre-
sentative of the employees of the Respondent Employer,23 we shall not
order the Respondent Employer to cease and desist from recogniz-
ing, and to withdraw and.withhold recognition from, the Respondent
Union.
We have also found that the Respondent Employer discriminated
against Louis Piscopo, William Davis, Rhody Busti, John Popek,
Joseph B. Paul, Rosser Wright, and Theodore Frye, by denying them
employment because of their failure to maintain membership in the
Respondent Union, and that the Respondent Union caused such dis-
crimination. As the employees discriminated against have been
'restored 'to their former positions, we shall not order that they be
'reinstated. However, we shall order that the Respondents make all
of them, except Louis Piscopo, who has been paid for the time he lost,
whole for any loss of pay they may have suffered by reason of the
discrimination by payment'to them of'a sum of money equal to that
which they normally would have earned on the days they were laid
off, less their net earnings, if any;24 and we shall order the Respondent
98 See Seaboard Terminal and Refrigeration Company, 114 NLRB 754
24 Crossett Lumber Company, 8 NLRB 440; Repubtsc Steel Corporation v N. L. R. I3 ,
$11 U. S. 7.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer to make available all pertinent records necessary to analyze
the amount of back pay due under this Order.25
Upon the basis of the foregoing, and the entire record in these cases,
the National Labor Relations Board hereby rejects the Trial Exam-
iner's conclusions of law, numbered 2 through 6, and in their place
makes the following :
CONCLUSIONS OF LAW
2. By discriminating in regard to the hire and tenure of employment
of its employees, and their terms and conditions of employment, and
thereby encouraging membership in the Respondent Union, the Re-
spondent Employer has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By contributing unlawful assistance and support to the Respond-
ent Union, the Respondent Employer has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (2) of
the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act, the Respond-
ent Employer has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
5. By causing and attempting to cause the Respondent Employer to
discriminate against its employees in violation of Section 8 (a) (3) of
the Act, the Respondent Union has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (2) of the
Act.
6. By restraining and coercing employees of the Respondent Em-
ployer in the exercise of rights guaranteed in Section 7 of the Act, the
Respondent Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
1. The Respondent Employer, Seaboard Terminal and Refrigera-
tion Company, Jersey City, New Jersey, its, officers, agents, successors,
and assigns, shall :
a. Cease and desist from:
(1) Giving effect to, performing, or in any way enforcing the un-
lawful union-security provisions of its agreement of December 22,
1953, or of its memorandum agreement dated March 15, 1954, with
21 F. W. Woolworth Company, 90 NLRB 289.
SEABOARD TERMINAL AND REFRIGERATION COMPANY 1399
Local 976, International Longshoremen's Association, Independent, or
entering into or enforcing any extension, renewal, modification, or
supplement of such agreement or other bargaining agreement contain-
ing union-security provisions, except as authorized by the proviso to
Section 8 (a) (3) of the Act, or requiring membership in said labor
organization as a condition of receiving welfare benefits.
(2) Encouraging membership in Local 976, International Long-
shoremen's Association, Independent, or in any other labor organiza-
tion, by discharging any of its employees or by discriminating against
them in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of employment except to the extent
permitted by Section 8 (a) (3) of the Act.
(3) Threatening to discharge its employees unless they pay dues to
Local 976, International Longshoremen's Association, Independent,
or any other labor organization, unless such dues are required pur-
suant to an agreement entered into in conformity with Section 8 (a)
(3) of the Act. `
(4) In any like or related nmanner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed by Section
7 of the Act, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
b. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Jointly and severally, with Respondent Union, Local 976, In-
ternational Longshoremen's Association, Independent, make whole
William Davis, Rhody Busti, John Popek, Joseph B. Paul, Rosser
Wright, and Theodore Frye in the manner set forth in the section of
this Decision and Order entitled "The Remedy," for any loss of pay
they may have suffered because of the discrimination against them.
(2) Preserve, and upon request make available to the Board or its
agents for examination and copying, all payroll records and reports,
social-security payment records, timecards, personnel records and re-
ports, and all other records necessary to determine the amounts of
back pay due under the terms of this Order.
(3) Post at its places of operation in Jersey City, New Jersey,
copies of the notice attached hereto marked "Appendix A." 26 Copies
of such notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the Respondent Employer's
representative, be posted by the Respondent Employer immediately
upon receipt thereof and be maintained by it for sixty (60) consecu-
tive days thereafter in conspicuous places, including all places where
20 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1400 DECISIONS OF NATIONAL LABOR' RELATIONS' BOARD
notices to employees are customarily posted. 'Reasonable steps shall
be taken by the Respondent Employer to insure that'said notices are
not altered, defaced,' or covered by any other material.
(4) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent Employer has taken to comply herewith.
II. The Respondent Union, Local 976, International Longshore-
men's Association, Independent, its officers, representatives, agents,
successors, and assigns, shall :
a. Cease and desist from :
(1) Giving effect to, performing, or in any way enforcing the un-
lawful union-security provisions of its agreement of December 22,
1953, or of its memorandum agreement dated March 15, 1954, with
the Respondent Employer, Seaboard Terminal and Refrigeration
Company, or entering into or enforcing any extension, renewal, modi-
fication, or supplement of such agreement or other bargaining agree-
ment containing union-security provisions, except as authorized by
the proviso to Section 8 (a) (3) of the Act, or requiring membership
in a labor organization as a condition of receiving welfare benefits.
(2) Causing or attempting to cause Seaboard Terminal and Re-
frigeration Company to discharge or in any other manner discriminate
against its employees in regard to their hire or tenure of employ-
ment or any term or condition of employment, except as authorized
by Section 8 (a) (3) of the Act.
(3) Threatening to cause Seaboard Terminal and Refrigeration
Company to discriminate against employees, unless they pay dues
fo Local 976, International Longshoremen's Association, Independent,
unless such dues are required pursuant to an agreement entered into
in conformity with Section 8 (a) (3) of the Act.
(4) In any like or related manner restraining or coercing employees
of Seaboard Terminal and Refrigeration Company in the exercise
of rights guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized by
Section 8 (a) (3) of the Act.
b. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Jointly and severally with Respondent Employer, Seaboard
Terminal and Refrigeration Company, make whole William Davis,
Rhody Busti, John Popek. Joseph B. Paul, Rosser Wright, and
Theodore Frye, in the manner set forth in the section of this Decision
and Order entitled "The Remedy," for any loss of pay they may have
suffered because of the discrimination against them.
(2) Post in conspicuous places in its business offices in New York,
New York, copies of the notice attached hereto marked "Appendix
SEABOARD TERMINAL AND REFRIGERATION COMPANY 1401
B." a' Copies of said notice, to be furnished by the Regional Director
,for the Second Region, shall, after being duly signed by an authorized
representative of the Respondent Union, be posted by the Respondent
Union immediately upon receipt thereof and be maintained by it for
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to its members customarily are-posted.
Reasonable steps shall be taken by the Respondent Union to insure
that said notices are not altered, defaced, or covered by any other
material.
(3) Mail signed copies of the notice attached hereto marked "Ap-
pendix B" to the Regional Director for the Second Region for posting,
Respondent Employer, Seaboard Terminal and Refrigeration Com-
pany, willing, at Respondent Employer's places of operation for sixty
(60) consecutive days in conspicuous places where notices to Re-
spondent Employer's employees are customarily posted. Copies of
said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by an authorized. representative
of the Respondent Union, Local 976, International Longshoremen's
Association, Independent, be forthwith returned to the-Regional Di-
rector for such posting.
(4) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent Union has taken to comply herewith.
MEMBERS MURDOCS and BEAN took no part in the consideration
of the above Decision and Order.
37 Ibid.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT give effect to, perform, or in any way enforce the
unlawful union-security provisions of our agreement of December
22, 1953, or of our memorandum agreement dated March 15, 1954,
with Local 976, International Longshoremen's Association, Inde-
pendent, or any extension, renewal, modification, or supplement
thereof, or any other bargaining agreement containing union-
security provisions, except as authorized by Section 8 (a) (3) of
the Act, or requiring membership in said labor organization as a
condition of receiving welfare benefits.
WE WILL NOT encourage membership in Local 976, International
Longshoremen's Association, Independent, or in any other labor
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization, by discharging any of our employees or by discrim-
inating against them in any other manner in regard to their hire
or tenure of employment or any term or condition of employment,
except to the extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT threaten to discharge our employees unless-they
pay dues to Local 976, International Longshoremen's Association,
Independent, or any other labor organization, unless such dues
are required pursuant to an agreement entered into in conformity
with Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights guar-
anteed by Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
WE WILL make whole William Davis, Rhody Busti, John Popek,
Joseph B. Paul, Rosser Wright, and Theodore Frye for any loss
of pay they may have suffered as a result of the discrimination
against them.
All our employees are free to become and remain, or refrain from
becoming or remaining , members of the above-named Union, or any
other labor organization, except to the extent that such rights may be
affected by an agreement authorized by Section 8 (a) (3) of the Act.
SEABOARD TERMINAL AND REFRIGERATION COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
• APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 976, INTERNATIONAL LONGSHORE-
MEN'S ASSOCIATION, INDEPENDENT, AND TO ALL EMPLOYEES OF SEA-
BOARD TERMINAL AND REFRIGERATION COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
AVE WILL NOT give effect to, perform, or in any way enforce the
unlawful union-security provisions of our agreement of December
22, 1953, or of our memorandum agreement dated March 15, 1954,
with Seaboard Terminal and Refrigeration Company, or any
extension, renewal, modification, or supplement thereof, or any
SEABOARD TERMINAL AND REFRIGERATION COMPANY 1403
other collective-bargaining agreement containing union-security
provisions, except as authorized by Section 8 (a) (3) of the Act,
or requiring membership in a labor organization as a condition
of receiving welfare benefits.
WE WILL NOT cause or attempt to cause Seaboard Terminal and
Refrigeration Company to discharge or in any other manner dis-
criminate against its employees in regard to their hire or tenure
of employment or any term or condition of employment, except
as authorized by Section 8 (a) (3) of the Act.
WE, WILL NOT threaten to cause the discharge of employees of
Seaboard Terminal and Refrigeration Company unless they pay
dues to Local 976, International Longshoremen's Association,
Independent, unless such dues are required pursuant to an agree-
ment entered into in conformity with Section 8 (a) (3) of the
Act.
WE WILL NOT in any like or related manner restrain or coerce
employees of Seaboard Terminal and Refrigeration Company in
the exercise of rights guaranteed in Section 7 of the Act, except to
the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
mentas authorized in Section 8 (a) (3) of the Act.
WE WILL make whole William Davis, Rhody Busti, John Popek,
Joseph B. Paul, Rosser Wright, and Theodore Frye for any loss
of pay they may have suffered as a result of the discrimination
against them.
LOCAL 976, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, INDEPENDENT,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On November 29, 1954, the General Counsel of the National Labor Relations
Board , by the Regional Director for the Second Region (New York, New York),
issued a complaint against Seaboard Terminal and Refrigeration Company and Local
976, International Longshoremen 's Association , Independent, as Respondents , alleg-
ing that each Respondent had engaged in and then was engaging in certain unfair
labor practices affecting commerce as set forth and defined in the National Labor
Relations Act, as amended, 61 Stat. 136, herein referred to as the Act, particularly
(as to Respondent Seaboard Terminal and Refrigeration Company ) Section 8 (a)
(1), (2), and ( 3) of the Act and ( as to Respondent Local 976 , International Long-
shoremen 's Association , Independent ) Section 8 (b) (1) (A) and (b) (2) of the
Act. The complaint was issued on the basis of charges and amended charges filed
by, or on behalf of, International Brotherhood of Longshoremen , AFL, in Cases Nos.
2-CA-3836 , 3880, 3917, and 4015 and 2-CB-1237 , 1258 , 1280 , and 1339. The
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director, acting under the discretion conferred upon him by Section 102.33
of the Rules and Regulations of the Board, Series 6, as amended, consolidated the
above-numbered cases for the purpose of hearing, pursuant to order and proper
notice, so that this matter went to hearing on the consolidated complaint, issued as
aforesaid, based upon the charges in these several cases.' The consolidated com-
plaint was supplemented by a bill of particulars filed by the General Counsel on
December 21, 1954. Each of the Respondents filed timely answers to the consoli-
dated complaint, effectively denying the substantive violations of the Act alleged
against them.
The Respondent Company in substance is alleged to have denied employment to
and to refuse to hire 7 named employees -1 on June 21, 1954,2 another on July 13
and 15, and 5 others on August 12, because they were not members of Local 976;
that on or about December 22, 1953, the Respondent Company entered into a col-
lective agreement with Local 976, which provided in part that the Respondent would
employ only members of Local 976 in good standing, contrary to Section 8 (a) (3)
of the Act, and that employees "must be members in good standing of Respondent
Union" in order to be eligible for benefits under a welfare plan which the Respondent
Company "is contractually obligated to provide at its own cost and expense"; that
the Respondent Company, by certain of its officers and agents threatened its em-
ployees with discharge or denial of employment if they did not become and remain
members in good-standing of Local 976; and that the Respondent Company, by ad-
hering to the above-mentioned collective-bargaining agreement with Local 976, has
and is assisting and contributing to the support of Local 976.
Local 976 in substance is alleged to have caused the discriminatory layoffs of the
seven employees denied employment on June 21, July 13 and 15, and August 12; to
have at several different times threatened employees or prospective employees of the
Respondent Company that they would be discharged or would not be hired unless
they were members of Local 976 in good standing; and that it discriminated or at-
tempted to discriminate against and restrained and coerced employees in the exercise
of their rights guaranteed in the Act because it "exercised, maintained in effect, en-
forced and implemented" the collective-bargaining agreement entered into by it and
the Respondent Company on or about December 22, 1953.
Pursuant to notice, this consolidated case came on to be heard before the duly des-
ignated Trial Examiner at New York; New York, on January 31, 1955. The hearing
was closed, on February 4, 1955. The General Counsel, the Respondents, and the
Charging Party each was represented by counsel and participated in the hearing.
Full opportunity was afforded each party to be heard, to introduce evidence relevant
to the issues, to argue orally upon the record, and to file briefs and proposed findings
of fact and conclusions of law. The General Counsel presented oral argument which
appears upon the record, and each Respondent submitted a brief after the close of
the hearing. Argument and briefs have been carefully considered. Motions to dis-
miss the complaint, made during the course of the hearing, and to strike certain parts
of the testimony received at the hearing are disposed of below.
Upon the entire record, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS ACTIVITIES OF THE RESPONDENT COMPANY
Respondent Seaboard Terminal and Refrigeration Company is and, at all times
material hereto, has been a corporation duly organized under and existing by virtue
of the laws of the State of New Jersey, maintaining its principal office and place
of business at 33 Clark Street, in Chicago, Illinois, and a branch office, plants, and
warehouse in Jersey City, New Jersey, and is now and continuously has been engaged
in the business of manufacturing and selling ice and refrigeration, icing railroad
cars, and operating a cold storage warehouse. During these times Seaboard, under
1 The General Counsel of the National Labor Relations Board or his counsel may be
referred to herein at times as the General Counsel, as will be apparent In context; Sea-
board Terminal and Refrigeration Company will sometimes be called Seaboard or the
Respondent Company ; Local 976, International Longshoremen's Association, Independent,
will sometimes be called Local 976 ; International Brotherhood of Longshoremen, AFL,
will sometimes be called IBL-AFL ; and the Regional Director for the Second Region here-
inafter is referred to as the Regional Director. The National Labor Relations Board will
be called the Board.
9 Unless otherwise specifically noted, all dates mentioned below are for the year 1954.
SEABOARD TERMINAL AND REFRIGERATION COMPANY 1405
a contract with the' Erie Railroad Company, has been continuously engaged in the
business of handling railroad freight being transported in interstate commerce by said
railroad company on piers 19, 20, 21, and 48, North River, New York, New York.
During the past year Seaboard, in the course and conduct of its business operations,
caused to be produced, sold, and delivered products valued at in excess of $1,000,000;
of which products valued in excess of $50,000 were shipped from its plants located
in the State of New Jersey directly in interstate commerce to States of the United
States other than the State of New Jersey, and furnished services valued in excess of
$200,000 to the Erie Railroad Company, an instrumentality and channel of com-
merce having a gross annual revenue in excess of $1,000,000.
Respondent Seaboard Terminal and Refrigeration Company is engaged in commerce
within the meaning of the Act.
If. THE LABOR ORGANIZATIONS INVOLVED
Respondent Local 976, International Longshoremen's Association, Independent,
and International Brotherhood of Longshoremen, AFL, each is a labor organization
within the meaning of Section 2 (5) of the Act.
A. Background
Dry merchandise at pier 48, and fruits and produce at piers 19, 20, and 21, are
brought to these locations in freight cars loaded on railroad barges on the New
Jersey side of the North River. The employees of Seaboard involved here are en-
gaged in the handling of this freight at these locations. The operations at pier 48
are conducted mainly in the daytime. The operations at piers 19, 20, and 21
require both day and night shifts, and the number of men required to man the gangs
varies considerably during the seasons. Some 20,000 carloads of freight and mer-
chandise are handled by Seaboard each year, most of the fruit coming from the
Western States. From one hundred to several hundred men are employed each
day. The men shape up at the start of each working day at the several piers and are
put to work on their respective regular jobs or on extra jobs, as- the case may be.
In the event a man regularly employed fails to shape, an extra man is assigned his
job for that day. At the piers where night operations are conducted, there is a second
shape at 10:30 a. in. of each working day. There are a number of regular gangs,
manned by regular and extra men. There also are "extra" extra men who shape and
who may be hired for work on regular and extra gangs when large shipments of freight
are being received for handling. -
Seaboard and Local 976 have had continuous collective-bargaining agreements in
force between them since the year 1938. Each of these Respondents emphasize that
since a first "recognition" strike in 1937, there have been harmonious labor relations
between them, with no strikes or work stoppages thereafter.3
On November 3, 1952, Seaboard and Local 976 entered into a collective-bargaining
agreement covering certain terms and conditions of employment for the calendar year
1952, which provided, inter alia, for a welfare plan at the cost of Seaboard, providing
life insurance and accidental death and dismemberment, hospital, and surgical benefits
to employees employed for at least 165 days in the calendar year, members of Local
976, who should have applied for such benefits by midnight, January 31, 1953. This
agreement also provided: - -
- 2. The Employer agrees to employ only members of the Union in good stand-
ing and the Union agrees to furnish at all times the necessary help to do the
Employer's work .4
On June 1, 1953, the same parties entered into a written supplemental agreement
for the calendar year 1953, continuing in force and effect the 1952 agreement without
change, except for an increase in hourly rates of pay. On December 22, 1953, they
3 Local 976 is also the collective-bargaining representative in the port of New York for
freight handlers at other piers, including National Carloading, Pennsylvania Railroad
Lehigh Valley Railroad, and others
4In 1948, as the result of a secret ballot taken pursuant to Section 9 (e) (1) of the
Act, then in effect, in which the employees voted on the question "Do you wish to author-
ize the union which is your present collective bargaining representative to enter into an
agreement with your employer which requires membership in such union as a condition
of continued employment," Local 976 negotiated with Seaboard and thereafter this clause 2
was written into the collective-bargaining agreement.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
again entered into a supplemental written agreement, extending the 1952 agreement
"to cover the year January 1st, 1954, through December 31, 1954," without
change except for a provision for holiday pay and an increase in hourly rates of
pay.5 A memorandum agreement, dated March 15, 1954, modified the 1954 agree-
ment between Seaboard and Local 976:
The undersigned hereby agree that, in order to clarify the agreement heretofore
entered into between them, effective January 1, 1954, until December 31, 1954,
and to give effect to their understanding and agreement which has been in prac-
tice for many years, the following provision be and is hereby incorporated into
the said agreement, in lieu of any conflicting provisions to the contrary: "Mem=
bership in the Union shall be a condition of continued employment on and
after the thirtieth day from the date hereof for all men covered by this agreement
and already employed or thirty days following employment for all men covered
by this agreement and hereafter employed by the employer. The Union agrees
that all such employees will be accepted into membership on the same terms
and conditions generally applicable to other members and, further, that good
standing in the Union shall not be lost except by the failure of the employee
to tender the periodic dues and initiation fees uniformly required as a condition
of acquiring or retaining membership in the Union." 6
Until about September 23, 1953, Local 976 and its parent body, International
Longshoremen's Association, were affiliated with the American Federation of
Labor. Thereafter, upon their disaffiliation from the A. F. of L., the International
Brotherhood of Longshoremen (IBL-AFL, the Charging Party herein) was or-
ganized as an affiliate of the A. F. of L., and asserted the same jurisdiction in the
union organizing field as that claimed by Local 976. In January 1954, IBL-AFL
filed a petition for certification as representative of the employees of Seaboard
then represented by Local 976 and thereafter, after a hearing on the question of
representation, the National Labor Relations Board, upon appropriate order, con-
ducted an election among these employees on September 23 to determine whether
they desired to be represented by Local 976 or IBL-AFL, or neither (109 NLRB
1094). After the election, IBL-AFL filed objections to the result thereafter and
the Board, on February 2, 1955, ordered a hearing on the objections. Trial Exam-
iner Whittemore in his Intermediate Report, filed April 26, 1955, recommended
that the objections "be found by the Board to be without merit."
It will be noted that the alleged discriminatory acts complained of occurred after
the filing of the petition for certification by IBL-AFL in January 1954.
B. The closed-shop and union-security clauses in the agreements between
Seaboard and Local 976
The employees, in the secret ballot taken pursuant to Section 9 (e) (1) of the
Act, in 1948, authorized their collective-bargaining representative, Local 976, to
negotiate with Seaboard for a union-shop clause. It appears uncontradicted upon
the record that thereafter Seaboard and Local 976 entered into a written agreement
containing a "closed-shop clause," rather than a "union-shop" clause; and that the
closed-shop clause was carried through in all written agreements up until the time
it was modified under the date of March 15, 1954. It appears further upon the
record without contradiction that the first agreement was entered into without
benefit of counsel and that the parties to that agreement really intended that it pro-
vide for a union shop, and so interpreted it in actual operation. There is also sub-
stantial testimony upon the record herein to the effect that prior to the written
agreement entered into between the parties on or about December 22, 1953, there
was an oral understanding carried over from pre-Taft-Hartley days that a union
shop would be in force and effect. It further is shown by the testimony of com-
petent witnesses that the closed-shop provisions of the first agreement was carried
over into the December 22, 1953, agreement, being simply copied from the agree-
ment in effect up until the execution of the latter one in December 1953. It is clear
enough upon the record, and the Trial Examiner finds, that at no time after the
5 The "welfare plan" and "closed shop" provisions of the 1952 agreement, carried over
for the year 1954, are asserted by the General Counsel to have been literally "maintained
in effect and enforced" by the Respondents at all times This the Respondents deny and
,refute, as will appear from the facts set forth below.
O The General Counsel and the Charging Party, IBL-AFL; question the validity of
this memorandum agreement, for reasons stated by them, discussed below.
SEABOARD TERMINAL AND REFRIGERATION COMPANY 1407
secret ballot in 1948 did the parties ever attempt to enforce a closed-shop clause
or a condition under which employees would be required to join the Union before
entering the employment of Seaboard; and that it was only when the dispute arose
as to representation in early 1954, and Seaboard consulted counsel for the first time,
that the invalidity of the closed-shop clause contained in the agreement of December
22, 1953, "to cover the year January 1, 1954, through December 31, 1954" was
discussed by the parties.
As shown by the proceedings and an order directing election in Case No. 2-RC-
6496, Seaboard in 1953 employed approximately 1,900 different men at different
times, but only approximately 277 were regular employees. Stephen Sherman, who
has held the office of president of Local 976 for approximately 16 years, testified
that during 1953 about 180 to 190 men, employees of Seaboard, belonged to Local
976. It seems clear enough, therefore, that neither Respondent attempted to enforce
the closed-shop clause of their collective agreement.
Local 976 and Seaboard assert that after discussing the advisability of revising the
then existing written agreement to provide in precise terms their long-standing agree-
ment as to union security and practices, they entered into, executed, and delivered
the memorandum agreement dated March 15, 1954, sometime between March 24
and April 8. It is plain from the testimony of the attorney for Seaboard and the
attorney for Local 976, who agreed upon the text of the memorandum agreement
dated March 15, that the first draft was prepared on or about March 15; that there-
after there were revisions; that sometime around March 24, 4 officials of Local 976
signed the memorandum agreement; that the attorney for Local 976 then transmitted
4 copies of the union-executed copies to the attorneys for Seaboard; that thereafter
an official of Seaboard signed the memorandum agreement and returned it to his
attorneys; and that thereafter, under cover of a letter dated April 8, 2 copies of the
executed memorandum agreement dated March 15, 1954, were delivered to the
attorneys for Local 976. At the hearing, the General Counsel proposed but failed
to prove that the memorandum agreement actually was an afterthought and was
not executed until as late as September 1954. The Trial Examiner finds that the
memorandum agreement was made, executed, delivered, and put into force and
effect no later than April 8, 1954.7
The General Counsel, as well as counsel for IBL-AFL, contends that the plead-
ings in certain litigation in the New York courts (Adams, et al. v. Seaboard Terminal,
etc., Municipal Court of the City of New York, begun August 3, 1954; Popeck, et al.
v. Seaboard Terminal, etc., Muncipal Court of the City of New York, begun July
1, 1954; and Application of Seaboard Terminal etc., for a stay of proceedings,
Supreme Court of the State of New York, New York County, begun July 15, 1954),8
conclusively showed that neither Seaboard nor Local 976 ever had any intention
of adhering to the memorandum agreement of March 15, because the pleadings and
the affidavits filed by officials of Seaboard and officials of 976 in these cases did not
mention the memorandum agreement at any time and reference was made only
to the provisions of the collective agreement of December 22, 1953. The Trial
Examiner has carefully examined the pleadings in these four cases, including the
complaints, the answers filed thereto, and affidavits filed in each of the several mat-
ters. The issues concerned only wage questions and arbitration and the answers,
affidavits, and statements contained in exhibits refer only to the matters in issue in
those cases and at no time was the question of a closed shop involved. Certainly
there would have been no reason to refer to the supplemental agreement of March
15, 1954, anywhere in those pleadings and to have done so, would have been to
plead surplusage so far as the issues in each of those cases was concerned.
7 The complaint alleges the invalidity of the agreement of December 22, 1953, and the
unlawful enforcement of the closed-shop clause of that agreement by the Respondent
Company and Local 976 It will be noted that the complaint makes no mention of the
memorandum agreement of March 15, as to which, at the hearing, General Counsel pleaded
surprise Nevertheless, the General Counsel adhered to his position that the closed-shop
clause was always in force and effect, and that when Seaboard and Local 976 entered into
the memorandum agreement of March 15, they had no intention of abiding by its provisions.
8 The Adams and Popeck cases were instituted by individual employees of Seaboard and
involved claims for wages, wage rates, and a differential between extra and regular
wages ; the application of Seaboard for a stay was by Seaboard in the Adams case A
fourth case, Arbitration of Certain Differences Between Stephen Sherman, Petitioner, and
Seaboard Terminal, etc , Respondent, had to deal with the arbitration of wages, wage
rates, and differentials between extra and regular wages, as provided in the colleclive-
bargaining agreement of December 22, 1953
1408 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD
Further in support of the contention against the validity of the memorandum agree-
ment of March 15 , it is contended that Local 976 did not advise its membership
concerning the execution of that agreement . It is true that there was no regular
meeting called to advise the membership of Local 976, or that part thereof com-
prising the employees of Seaboard. However, it is abundantly clear from the
record that . the officials of Local 976, who customarily were present on the piers
where the men were at work, spread the word widely concerning the adoption of
the memorandum agreement . In view of the well-known practices concerning em-
ployment, the Trial Examiner doubts the necessity for even advising the men formally
of the adoption of the memorandum agreement. There was a daily shape; during
1953 over 1,700 men, not members of Local 976, were employed by Seaboard. In
this situation it cannot be inferred that any union member believed he was working
under a closed-shop agreement.
Counsel for IBL-AFL took the position at the hearing herein, which seems to
be joined in by the General Counsel , that at the time the memorandum agreement
of March 15 was entered into, there was a question of representation pending be-
fore the Board and that because at the time of the execution of the memorandum
agreement and the question of representation then pending through the filing of a
petition in Case No. 2-RC-6496, Seaboard and the Union (meaning Local 976)
"committed an unlawful act in the face of the question of representation to execute
a modification . . ., to change a contract from a closed shop to a union shop and
thus compel men who are working there, about whom there was a question as to
who represents them-to compel them to join Local 976." In other words, it is
contended that Seaboard and Local 976 had no right to modify the existing agree-
ment so as to change the wording in their then existing contract. Counsel for ILA-
AFL says that the execution of the memorandum agreement of March 15, "was an
unlawful act, and, therefore . . . is not admissible and should not be admitted into
evidence, and should have no weight in the determination of this case...." Coun-
sel for the General Counsel contends that under the contract dated December 22,
1953, which was to be enforced for the calendar year 1954, there was no legal right
under that contract to compel any employee to join a union; and that if there was
no such legal right the Company and Local 976 are seeking, under the modification
of March 15, to acquire a new right during the time when a question concerning rep-
resentation was pending.
These fairly consistent positions seem to the Trial Examiner to ignore the fact that
Local 976 has shown by the uncontradicted testimony on the record, and docu-
mentary evidence, to have represented the employees continuously from the year
1938, and that it is not refuted upon the record that the so-called closed-shop agree-
ment first negotiated after the secret ballot in 1948 ever actually was observed or
that the oral agreement for a union-shop custom and usage with respect to hiring
was ever changed up to the time of the execution of the memorandum agreement
of March 15, 1954. There is nothing in the law which would have prevented Sea-
board and Local 976 from entering into a bona fide agreement, as they say they did
in March 1954, to modify the provisions of the agreement to cover the year 1954
entered into on December 22, 1953. The parties had a perfect right to make the
modification in the main agreement which they did if its execution was bona fide
and in good faith. There is nothing in the record herein to show that the parties
were not acting in good faith.
In taking the position they have, the General Counsel and the Charging Party
are in conflict with the principle enunciated by the Board in William'D. Gibson Co.,
Division of Associated Spring Corporation, 110 NLRB 660, modifying Midwest
Piping Supply Co. Inc., 63 NLRB 1060. The factual situation herein is similar to
that in General Electric Company, 110 NLRB 1109, wherein the Board said:
The Board recently held in the Associated Spring case that the Midwest Piping
doctrine , which established a general prohibition against employer execution
of the bargaining agreement with 1 of 2 or more competing labor organizations
during the pendency of representation proceedings , is in the interest of in-
dustrial stability to be no longer applied to situations where an employer con-
tinues normal contractual relationships with an incumbent union which rep-
resents the employer's employees. Accordingly, we find for the reasons fully
stated in the Associated Spring decision that the Respondent did not violate
Section 8 ( a) (1) and (2) of the Act by permitting its national agreement
with the UE [Union] to be automatically renewed on June 17, 1952, and
modified on September 12, 1952 , without taking steps to exempt the employees
of the Detroit Unit therefrom.
SEABOARD TERMINAL AND REFRIGERATION COMPANY 1409
In the Associated Spring case, as in the General Electric Company case , each em-
ployer proceeded to enter into contractual relationship with an incumbent union
during the pendency of a representation case. That is precisely the situation in the
instant case. The Trial Examiner deems himself bound by the decisions in Associ-
ated Spring and General Electric, and therefore concludes, on the preponderance of
the evidence herein, that Seaboard and Local 976 had the right to modify their
existing contract by entering into the memorandum agreement of March 15. The
Trial Examiner further finds, on the whole record in this case, that neither Seaboard
nor Local 976 at any time undertook to enforce a closed -shop agreement so as to
require as a condition of employment by the Company prior membership or instant
membership in Local 976 as a condition of employment.
C. The question of the validity of the memorandum agreement of March 15, 1954
The closed-shop provision of the November 3, 1952 , agreement and supplemental
agreements dated June 6, 1953, and December 22, 1953, clearly is not the type of
union-security clause permitted by the Act; on the contrary, the clause is illegal on
its face. It has long been held that the mere signing of an illegal closed -shop agree-
ment tends to encourage or discourage membership in a labor organization. One
question to be decided in this case is whether the continuation and retention of the
closed-shop provision of the November 3, 1952, agreement up until its modification
by the memorandum agreement of March 15, 1954, resulted in violations of the Act
during the 6-month period prior to the filing of the charges in these consolidated
cases. The first charges (Cases Nos. 2-CA-3836 and 2-CB-1237) were filed on
June 22, 1954; the last charges (Cases Nos. 2-CA-4015 and 2-CB-1339) were filed
on October 21, 1954. Charges in the other four cases were filed in July and August.
The memorandum agreement of March 15, 1954, was completed and effective on
April 9 at the latest so if that memorandum agreement effectively cured the illegality
in the prior subsisting agreement as written for the year 1954, which the Trial Exam-
iner finds it did, the cutoff date for the filing of charges with respect to the illegal
operation of the closed-shop clause would fall on October 9, 1954. Therefore the
charges filed in Cases Nos. 2-CA-4015 and 2-CB-1339 were not filed within the time
provided by the proviso of Section 10 (b) of the Act, and these cases therefore
should be dismissed. The instant case is distinguishable on the facts from the cases
which hold that the execution of a contract containing a forbidden union-security
clause constitutes an unfair labor practice . Here, there is a long history of collective
bargaining between Seaboard and Local 976, with the use of a system of daily
hiring at a shape well known to men who appeared at the shape for hiring each
day. Nor is there any evidence that any employee ever was encouraged or discour-
aged with respect to union membership because of the existence of that clause.
The General Counsel and counsel for the Charging Party emphasized that no for-
mal meeting ever was held to apprise the employees of Seaboard , including members
of Local 976, of the execution of the March 15 supplemental agreement. It is argued
further that Seaboard, as a party to that supplemental agreement, made no effort to
apprise either its supervisors on the piers or its employees of the execution of that
memorandum agreement . The record does disclose that officers and stewards of
Local 976 advised employees on the piers that the memorandum agreement had
been entered into and this fact, together with the employment of hundreds of men,
including extra extras, during the course of the year, with a very small percentage
of the total number being members of Local 976, together with the fact that Seaboard
granted welfare benefits to any eligible employee who applied therefor, impels the
Trial Examiner to find that Seaboard and Local 976 at all times acted in good faith
and at no time attempted to enforce the closed -shop clause contained in the agree-
ment between them. The uncontradicted testimony is to the effect that that clause
was adopted by laymen who were ignorant of its legal import , and that it was only
when counsel was called in for consultation after the filing of the petition for
certification by IBL-AFL that the parties were advised that their agreement was
illegal.
In Jersey Contracting Corp ., 112 NLRB 660 , the Board recently had occasion to
review and to reiterate its prior -expressed rule that the Board will not accept parol
evidence to establish modification of written union -security agreements . In these
consolidated cases, the Trial Examiners had presented to them situations similar to
the one in the instant case where employers and Local 976 had written into their
collective agreements closed -shop provisions similar to the one in the collective
agreement between Seaboard and Local 976 . In those cases , however, none of the
contracts had been amended by written memorandum , and the respondents, both
employers and Local 976, relied upon oral agreements between them modifying the
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closed-shop provisions which appeared in their respective collective-bargaining
agreements . In its decision in these cases the Board said:
Upon the consideration of the particularized evidence summarized herein,
and the entire records in these cases, we find that the Respondents have failed
to establish that they have either rescinded or modified the unlawful closed-shop
clause of the 1946 agreement. Furthermore, we will not accept parol evidence
to establish modification of written union-security agreements.. We so rule
because the obvious effect of permitting oral evidence in such circumstances
would be to establish unlimited opportunity for avoiding responsible compliance
with the Act. Moreover, a requirement that union-security clauses be modified
in writing will not impose an undue burden on parties with a bona fide intent
to change a written union-security provision. [Emphasis supplied.]
The Intermediate Reports of the Trial Examiners in these cases are attached to
the Decision and Order of the Board. The Trial Examiners both found that there
was no credible testimony offered to prove that a valid union-security clause had
been agreed upon as a substitute foi the closed-shop clause appearing in the written
agreements under consideration. The failure of the Respondents in each case to
present adequate evidence to support their position impelled each Trial Examiner
in those cases to find that the Respondents at no time modified the contract pro-
vision in question . In so deciding, the Trial Examiners relied upon cases holding
that the execution of an illegal closed-shop clause is in itself violative of the Act.
P. 677, footnote 8; p. 684, footnotes 3 and 4.
Here the Trial Examiner finds that the memorandum agreement dated March 15,
1954, effectively cured the invalid closed-shop clause and supplanted it, and that at
all times after April 8, Seaboard and Local 976 acted in conformity with law in ap-
plying the provisions of that memorandum agreement. The Trial Examiner further
finds that neither Seaboard nor Local 976 at any time undertook to enforce the
provisions of the closed-shop clause of the December 22, 1953, agreement. Even
though it should be held that the Respondent Company and the Respondent Union
violated the provisions of Section 8 (a) and (b) of the Act by the mere signing of
the illegal closed-shop agreement and that they were in consequent violation of
the Act prior to April 8, 1954, the violation is a technical one, and it would not
effectuate the purposes of the Act to require them to cease and desist from abiding
by the provisions of that closed-shop agreement or by forbidding them to enter into
another one in the future.9
D. The welfare plan
The collective-bargaining agreement between Seaboard and Local 976 of No-
vember 3, 1952, contained provisions for a welfare plan for employees "(1) em-
ployed by Seaboard at the Erie Railroad Terminal in New York City for at least
165 days in the calendar year beginning January 1, 1951 and ending December
31, 1951; and (2) are covered by this collective bargaining unit; and (3) have filed
with the employer at its office a written application for right to benefits within
30 days of date of this agreement, signed by employee and certified to by the
Union; and (4) prior to accrual of benefits under the Plan (other than life insurance)
have been employed by the employer at sometime during the calendar year 1952
at the Erie Terminal in New York City and are members of 976 in good standing
on the date of accrual of benefits." Provisions in supplemental agreements covering
the years 1953 and 1954 are identical to the above-quoted provisions except for
dates. Pursuant to the agreement, the Company put into effect a welfare plan,
effective April 1, 1952, providing for life insurance and accidental death and dis-
memberment insurance, hospital expense, and surgical benefits, the entire cost of
the program to be borne by Seaboard. The plan has been in effect since that date.
The complaint alleges, in respect to these clauses of the agreement that "em-
ployees must be members in good standing of Respondent Union in order to be
eligible for benefits under a Welfare Plan which Respondent Company is con-
tractually obligated to provide at its own cost and expense," and therefore is dis-
criminatory.
The General Counsel failed to sustain the burden of proof in this respect. In-
deed, the evidence is overwhelmingly to the effect that Seaboard, while observing
to the letter its requirements under the agreement to furnish welfare benefits to
members of Local 976, elected to furnish these benefits to all of its employees,
the only condition being the one stated in the agreement and the published plan
9 Cf. Red Star Empress Line v. N. L. R . B., 196 F. 2d 78 , 80-81 ( C. A. 2).
SEABOARD TERMINAL AND REFRIGERATION COMPANY 1411
that an employee, in order to be eligible for welfare benefits, must have been em-
ployed for 165-days in the preceding year and. must have made application to Sea-
board for such benefits. Clearly the benefits of the welfare plan since it has been
in effect have not been contingent upon union membership. There is no evidence
that benefits have ever been refused to any employee, including employees who are
not members of Local 976 in good standing. The record shows that as of October
1954, 281 employees had received policies and were entitled to benefits under the
welfare plan; and at that time there were approximately 190 members of Local 976
in good standing who were employed by Seaboard. Witnesses called by the Gen-
eral Counsel and questioned with respect to welfare benefits, who testified on direct
examination that they had not paid their dues and were not in good standing, stated
on cross-examination that they had received their insurance policies and the record
shows that the premiums were paid by Seaboard on those policies and were in effect
at the time of the hearing herein. Among these, Louis Piscopo, who was refused
employment on the day of June 21 because he was not in good standing with the
Union, received his policy and was entitled to benefits at all times during the course
of his employment; William Davis, refused employment on July 13 and 15, re-
ceived a policy which at all times was in effect; John Behan, who had stopped
paying dues in April 1954 and continued in arrears through that year, made appli-
cation for benefits and was eligible therefor at all times ; and Michael Brenyo, who
stopped paying dues in December 1953 and did not resume dues payments until
August 1954, received hospitalization benefits in July of 1954 when he was not in
good standing. The Trial Examiner finds that Seaboard, at all times since April 1,
1952, has furnished welfare benefits to any of its employees eligible therefor without
regard to whether they were members of Local 976, in good or bad standing, or were
not members of Local 976.
It further is found that Seaboard, by observing the provisions of the November 3,
1952, agreement with Local 976 covering welfare benefits, did not discriminate
against employees in violation of Section 8 (a) (3) of the Act and Section 8 (a) (1)
of the Act or assisted and contributed to the support of Local 976 within the mean-
ing of Section 8 (a) (2) of the Act.
E. The alleged discrimination and interference
The complaint alleges that Seaboard, in violation of Section 8 (a) (3) of the
Act, denied employment to or refused to hire certain employees because of the exist-
ence of the agreement of December 22, 1953, containing the closed-shop provision;
and that on certain dates in August, and thereafter, Seaboard threatened em-
ployees and prospective employees with discharge or denial of employment if they
did not become or remain members of Local 976 and pay their dues to the Re-
spondent Union. The complaint alleges further that Seaboard during August
threatened its employees and prospective employees with discharge or denial of
employment if they did not become or remain members of the Respondent Union
and pay dues to it. It further is alleged that Local 976 caused or attempted to
cause Seaboard to discriminate against its employees and prospective employees
in regard to hire or tenure of employment and other terms and conditions of em-
ployment by insisting upon the enforcement of the collective agreement of Decem-
ber 22, 1953; and that on certain days in June, July, and August Local 976 by cer-
tain of its officers, agents, and representatives threatened employees or prospective
employees of Seaboard that it would cause or compel Seaboard to discharge or to
refuse to hire them if they did not become or remain members of Respondent
Union or pay dues to it. Further, it is alleged that Local 976 has since on or about
June 21, caused or attempted to cause Seaboard to deny employment to or to refuse
to hire these "employees and prospective employees": Louis Piscopo, on June 21,
1954; William Davis, on July 13 and 15, 1954; and Rhody Busti, John Popek, Joseph
B. Paul, Rosser Wright, and Theodore Frye, on August 12, 1954.
The constitution and bylaws of Local 976 permit an employee 3 months' grace
for the payment of regular monthly dues. Should an employee become in arrears
in dues 3 or more months he then becomes subject to suspension; should his dues
become 6 months or more in arrears the employee may be expelled after written
notice to him from the Union. On the dates mentioned after each man's name,
above, each man was more than 3 months in arrears in payment of dues to Local 976.
Louis Piscopo first joined Local 976 in June 1950, having begun employment with
Seaboard in March of that year. During the term of his employment until late 1954,
-he 'principally was employed as a checker and stevedore on pier 48. On this pier
John Kirkowski or Dan Curtain, supervisors for the Company, usually conduct
387644--56-vol. 114-90
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the morning shape; Jimmy Walsh, union steward, is usually present at the shape
and occasionally Angus MacLeod and, Frank Baffa are present at the shape.
MacLeod is business agent and Baffa is secretary-treasurer of Local 976.' John
Behan is the IBL-AFL shop steward on pier 48 and he too is usually present at the
morning shape. On or about June 16, Walsh asked Piscopo if he had any intention
of paying his dues, advising Piscopo that he was about 5 months in arrears. Piscopo
told Walsh he had no intention of paying any dues and that "as far as I go, after the
,election, I will pay dues to whichever union wins out in the election." On June 18,
Walsh, in the presence of MacLeod, told Piscopo that he was required to pay dues,
that he should give them $3 that day and $3 a week thereafter "until my book was
paid up, otherwise I wasn't going to be put to work," and Piscopo said that he again
told Walsh he had no intention of paying any dues and that "if they didn't want to
hire me, that was up to them." On June 21, Piscopo was held out of the shape
by Kirkowski, Walsh, MacLeod, and Baffa, all of whom were present at the time.
After failing to obtain work that day Piscopo spoke to Curtain and asked him why
he was not put to work and was advised by Curtain that he was told by the Union
not to put him to work that day; Behan then addressed Curtain on Piscopo's behalf
and Curtain told Behan that he had been told not to hire Piscopo and therefore he
was not hired. Later that day Piscopo communicated with Christopher Porter,
organizer and an officer of IBL-AFL. Piscopo reported for work the next day
and was hired. A day or so later while he was at work, John G. Hollmeyer, vice
president and general manager of Seaboard, and Christian Haeni, a company su-
pervisor, engaged him in conversation and Hollmeyer advised him that he did not
know how he could keep him in employment unless he paid his dues; that he would
not lose his pay for the day he had lost; and that if it was a matter of money he
(Hollmeyer) would give him the money himself. On the following day just be-
fore the morning shape, Piscopo found Haeni and told him that he had decided to
pay his dues; Haem handed him $15, the amount of dues Piscopo owed, and Piscopo
then paid his dues and continued at work thereafter.
William Davis, employed on pier 48, a member of Local 976, had stopped paying
dues in December 1953. On or about July 6, Walsh asked Davis to pay his dues
and Davis told him that he would, starting the following week, make a first payment
of dues and continue until he was paid up. The following week, Walsh again asked
him to pay his dues and he told Walsh he didn't have the money then and Walsh
told him that if he didn't pay dues "I would be knocked off." On July 13, Davis was
present at the shape but was not hired; Davis did not attend the shape on the follow-
ing day; on the third day before the shape Davis saw Behan and he and Behan
approached Curtain and Behan requested Curtain not to refuse to hire Davis because
he was going to pay his dues. Baffa then approached the group and Behan told
Baffa that Davis intended to pay his dues and offered Baffa Davis' dues book. Baffa
told Behan to give the book to Walsh; subsequently, during the shape, Baffa returned
the book to Davis telling him that they would not accept 1 month's dues and that he
would have to pay his full arrears. He was not hired for work on that day; and after
being advised by a fellow worker, he went to pier 20 and spoke to Steve Baker, the
timekeeper, who asked him if he did not have $6 to pay dues and Davis told him he
didn't have it. Davis then told him to return to see him in the morning which he
did; Davis said that Baker then gave him $21 and told him that it was for the
payment of union dues, Davis then returned to pier 48 and paid his dues to Walsh.
He was put to work on that day.
On August 12, 1954, Rhody Busti, John Popek, Joseph B. Paul, and Rosser Wright,
severally employed on piers 19, 20, and 21, were not hired at the shape.'° Stephen
Sherman, president of Local 976, Baffa, and MacLeod were present at the shape and
knew the men were held out on that morning. Shortly thereafter the men were
called aside and Sherman spoke to them and told them in effect that they either would
pay their dues or the Union would insist that they not be hired when they appeared
at the shape. Thereafter, on the advice of Christopher Porter, they went to see Haeni
and Haeni told them that he could do nothing for them but they ought to speak
to the union delegates and make arrangement for the payment of their arrears in
dues. They were advised by MacLeod and Allen to see Baffa and Baffa told them
that they would have to pay $12 a week until their books were paid up and when
he was advised that they didn't have that much money to pay it was finally arranged
that they would pay $6 a week until their arrears were cleared. Several of these men
including Popek and Busti had been advised by Haeni prior to the time that they
10 The complaint alleges that one Theodore Frye also was held out of the shape on
that day. Frye did not testify at the hearing.
SEABOARD TERMINAL AND REFRIGERATION COMPANY 1413
were laid off that,they ought to pay their arrears in dues in order to be eligible to
work; that they were old employees and he would dislike to see them prevented
from working. because of their refusal to pay dues.
Piscopo lost 1 day's work, for which he was paid; Davis lost probably 2 days' work.
The men who were held off from work on August 12 apparently lost no time, but
went to work immediately after they had arranged for the payment of their arrears
in dues. The men who were held out of the shape on August 12 had previously
been told by Hollmeyer that they ought to pay up their arrears in dues-otherwise
they might be prevented from working.
Piscopo reached his decision to pay his dues on the day following his conversation
with Hollmeyer and after he had talked with Porter, the organizer for IBL-AFL.
.Hollmeyer testified that Piscopo told him he did not have the money with which to
pay his dues, that he was in debt because of dental expenses, and Hollmeyer further
testified that he advanced $15 to Piscopo and $21 to Davis out of his own pocket
simply to avoid a strike on the piers. During June, July, and August there was con-
siderable organizing activity going on on the piers and the AFL Union was engaged
in a determined effort to displace Local 976 as the bargaining representative of these
men.
Counsel for Seaboard argues that since the agreement dated March 15, 1954, is
valid and since the understanding had always been that there was to be a union shop
and a closed shop was never in effect, Local 976 was entitled to require the men to
pay their dues and there is nothing illegal in Seaboard advising or urging the men to
pay their dues. The Trial Examiner does not agree that Seaboard was entitled to
require men to pay their dues although he does agree,that the actions of Hollmeyer,
Haeni, and Davis in advising or urging the men to pay their dues, and the personal
action of Hollmeyer in advancing money for the payment of dues to two of the men,
did not constitute interference, intimidation, or coercion nor did it amount to
assistance or support of Local 976. The company officials were doing no more than
attempting to discharge Seaboard's obligations under the union agreement and cer-
tainly they did not exceed the bounds of propriety when they urged these employees
to make up their arrears in dues.ll
Behan, the IBL-AFL steward on pier 19, testified to a conversation he had with
Baffa on or about August 13:
He asked me if I knew I was behind in my union dues, and I told him I knew
I was, and he asked me if I was going to pay him, and I told him as far as I
understood there was a question of who was going to represent the men, there
was going to be an election, and I couldn't see paying any dues, so he told me
that I would have to pay dues. So I told him I wasn't going to pay any dues,
so he gave me a week to, he told me if I didn't pay dues by the following
Thursday, that I was going to be knocked off. So he said in that week I could
find out, and if I asked around, I would find out f would have to pay dues. So
I did. I asked around. I was advised to pay dues. So I believe it was on
Friday, the 20th, I paid Scotty MacLeod 1 month's dues under protest.
The approach of Baffa to Behan seems to have been typical of the effort of officials
of Local 976 to collect dues. The Trial Examiner cannot find "threats of loss of
employment" implicit in these conversations which would constitute violations of
the Act.
On or about July 1 the following undated communication on the letterhead of
Local 976 was posted at several places on pier 48:
DEAR SIR AND BROTHER: As you know, your Union was successful in negoti-
ating a welfare plan for yourself and your family, which includes, life insurance
and maternity coverage, among other benefits, at no cost to you.
While processing your application for these benefits, our records disclose that
you are delinquent in your dues payments. Before you can be certified for
such benefits you must be in good standing. See your delegate today and get
in good standing.
Don't lose these valuable Welfare Benefits. You owe it to yourself and to
your family. Act now! While you still have time.
Fraternally yours,
EXECUTIVE BOARD,
Local 976, I. L. A., Independent.
This letter or communication bears what appears to be the official seal of Local 976.
22 Cf. Bloomingdale 's, 107 NLRB 191, 192, 205.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel and the Charging Union contend that the posting of this
letter 12 resulted in intimidation and coercion against employees and led them to be-
lieve that it was necessary to pay dues to Local 976 in order to obtain welfare bene-
fits. The only evidence in the record in this case in attempted proof of discriminatory
treatment of employees in connection with welfare benefits is that the document was
tacked up on a shed in the driveway in the entrance to pier 48 and at the side of
a watchman's shanty on the same pier for a period of about 2 weeks. There is no
proof as to whether or not its posting was authorized by Local 976 or Seaboard;
on the contrary , the evidence shows that Baffa tore one notice down because he
knew it was an unauthorized statement. The General Counsel failed to sustain
his contention that this document is at all relevant to the issues herein , and accordingly
the Trial Examiner now grants the motion of counsel for the Respondent Union to
strike the exhibit from the record.
Having found that Seaboard and Local 976 effectively cured the infirmity of the
closed-shop agreement of December 22, 1953, by execution of the memorandum
agreement dated March 15, 1954, the Trial Examiner finds that the Respondent Com-
pany was justified in acceding to the requests of the Respondent Union that Piscopo
be denied work on June 21, that William Davis be denied work on July 13 and 15,
and that Rhody Busti, John Popek, Joseph B. Paul, Rosser Wright, and Theodore
Frye were justifiably refused employment for a short period on August 12 at the
request of Local 976, because they and each of them had refused to pay the
regular dues uniformly required by the Local from its members, and for no other
reason . In the absence of proof to the contrary , the Trial Examiner cannot find
that these men were refused employment on these several dates simply because they
were adherents of IBL-AFL.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Longshoremen, AFL, and Local 976, International
Longshoremen's Association, Independent, each is a labor organization within the
meaning of Section 2 (5) of the Act.
2. Respondent Seaboard Terminal and Refrigeration Company and Respondent
Local 976, International Longshoremen 's Association, Independent , by maintaining
in effect and enforcing the collective -bargaining agreement between them relating
to hire and terms and conditions of employment of the Respondent Company's em-
ployees engaged in the handling of railroad freight at its North River pier operation,
have not engaged in unfair labor practices within the meaning of Section 8 (a) (3)
and (1 ) and 8 (b) (2) and 8 (b) (1) (A) of the Act.
3. By refusing employment to Louis Piscopo on June 21, 1954, William Davis
on July 13 and 15, 1954, and Rhody Busti, John Popek, Joseph B. Paul, Rosser
Wright, and Theodore Frye on August 12, 1954, the Respondent Company has not
violated Section 8 (a) (3) of the Act.
4. The Respondent Union, by requesting that the employees named in the fore-
going paragraph numbered 3 be denied employment on the dates mentioned after
each name, has not violated Section 8 (b) (2) of the Act.
5. The Respondent Company has not, by the acts complained of in the complaint
or any of them, violated the provisions of Section 8 (a) (2) of the Act.
6. By reason of the acts alleged in the complaint, the Respondent Company and
the Respondent Union have not engaged in unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.)
12There is no evidence that it was ever sent through the mails. On the contrary, it
appears that on advice of counsel Local 976 did not mail these letters after they were
prepared; that Christopher Porter, once secretary of Local 976, removed copies of these
letters together with the Union's seal from the offices of Local 976 at the time of the
split between Local 976, when it became an independent union, and IBL-AFL, with winch
Porter is now associated.