Southern Stevedoring Co., Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1977

230 N.L.R.B. 609 (N.L.R.B. 1977)

SOUTHERN STEVEDORING COMPANY, INC.
Southern Stevedoring Company, Inc. and Nelva
Simon
International Longshoremen's Association, Local 1516
and Nelva Simon. Cases 15-CA-6 127 and 15-CB-
1801
June 29, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On February 24, 1977, Administrative Law Judge
Almira Abbott Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
Southern Stevedoring Company, Inc., hereinafter
Southern, and the General Counsel filed exceptions
and supporting briefs, Respondent Southern filed a
reply brief and Respondent International Longshore-
men's, Local 1516, hereinafter Local 1516, filed an
answering brief in opposition to the General Coun-
sel's exceptions, and the Charging Party and Interna-
tional Longshoremen's Association, Local 1410,
hereinafter Local 1410, filed an answering brief in
opposition to the exceptions of the Respondents.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent Southern Stevedoring
Company, Inc., Mobile, Alabama, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of Section 8(a)(2) and (1) not found by the Adminis-
trative Law Judge and that the complaint be, and it
hereby is, dismissed entirely as to Respondent
International Longshoremen's Association, Local
1516.
i Respondent Local 1516 filed a motion to stnke brief of Charging Party
and Local 1410, contending that Local 1410 is not a party and that the brief
was untimely filed. The motion is hereby denied since the bnef has been
timely filed and is properly before us as a brief of the Charging Party.
230 NLRB No. 87
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
This case was heard at Mobile, Alabama, October 21, 22,
27, and 28, 1976. The Charge in Case 15-CB-1801 was
filed by Nelva Simon and served on the Respondent Union
June 6, 1976; the charge in Case 15-CA-6127 was filed by
Simon and served on the Respondent Employer July 8,
1976. The Regional Director for Region 15 issued an order
consolidating cases, consolidated complaint, and notice of
hearing August 30, 1976, and it was duly answered by the
Respondents.
The issues are whether or not the Respondent Employer
violated Section 8(aX2) and (1) of the National Labor
Relations Act, as amended, and the Respondent Union
violated Section 8(bXlXA) of the Act on May 28, 1976, by
entering into and giving effect to a collective-bargaining
agreement covering the Respondent Employer's longshore
employees at the Port of Mobile at a time when the
Respondent Employer was bound by a collective-bargain-
ing agreement with International Longshoremen's Associa-
tion, Local 1410, covering such employees, and when the
Respondent Union did not represent a majority of its
longshore employees; whether or not the Respondent
Employer's ship and dock foremen are supervisors; and
whether or not the Respondent Employer further violated
Section 8(aX2) and (1) by its foremen's interrogating its
longshore employees, handing out Local 1516 authoriza-
tion cards to its employees, soliciting signatures on such
authorization cards, and threatening to deny employment
to such employees if they refused to sign the authorization
cards.
For the reasons detailed below, I find that the Employer
violated the Act in part as alleged, but that Local 1516
committed no violations.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respondent
Employer,' I make the following:
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent Employer is a Florida corporation
engaged in providing stevedoring services at the Port of
Mobile, Alabama. During the preceding 12 months the
Respondent Employer received revenues in excess of
$50,000 for its stevedoring services at the Port of Mobile
from transportation enterprises constituting a link in the
chain of interstate and foreign commerce deriving a gross
revenue in excess of $50,000. The Respondent Employer
admits, and I conclude, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
The Respondent Union waived the filing of a brief and asked that the
arguments stated in the Respondent Employer's brief be considered as its
own.
609
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. LABOR ORGANIZATIONS
The Respondent Union, herein sometimes referred to as
Local 1516, and International Longshoremen's Associa-
tion, Local 1410, are labor organizations within the
meaning of Section 2(5) of the Act.
111. UNFAIR LABOR PRACTICES 2
A. The contract
1. Facts
Southern began unloading bananas from ships of Del
Monte Corporation at the Port of Mobile in 1974. At that
time Samuel Gordon was president and Louis Fitzgerald
vice president of Southern.
Southern's Mobile operations consist of unloading
bananas from a fleet of nine ships one of which calls at the
port every week on the average. Seven of the ships are
identical, about 380 feet long and carrying a load of 92,000
boxes of bananas; two are identically about 310 feet long
and carrying 55,000 boxes. Southern uses a mechanized
system by which ship gangs place bananas on vertical
conveyors in the hold which bring them to a horizontal
conveyor running about 400 feet long the dock parallel
with the ship. Dock gangs take the boxes off the horizontal
conveyor and stack them in trucks backed up in bays along
the conveyor. The unloading operation is headed by
Stevedoring Superintendent Michael Shiro and his assis-
tant George Pedrick. Samuel Jenkins is employed as ship
superintendent or ship foreman, Shelly Jenkins as mainte-
nance man, Bill Law as truck spotter, and Samuel Harris
(also known as Gus Hall) as timekeeper. On the night
before a ship is due to arrive, Shiro posts for the
information of the ship and dock foremen the number of
gangs to be employed. The usual requirement is three dock
and three ship gangs for a total of 180 men for the long
ships, and two dock and two ship gangs for a total of 120
for the shorter ships. Vice President Fitzgerald estimated
that approximately 30 percent of the men are employed
regularly on every ship; 25 percent work about half the
ships; and the remaining 45 percent are casual labor.
Practically all also work for other employers as general
cargo longshoremen. During the year preceding the
hearing, Fitzgerald estimated, Southern employed a total of
approximately 1,200 men, and since Southern began
operating the Port of Mobile, in 1974, approximately 2,000
men.
On November 5, 1974, Southern executed a Memoran-
dum of Agreement with ILA, Local 1410, and Internation-
al Banana Handlers Association (referred to therein as the
Union) which had been the contract representative of the
employees of Southern's predecessor, Sealand Terminal
Corporation. Officers of ILA Local 1410 were Isom
Clemon, president (and ILA International vice president);
Seymour Irby, first vice president; Matthew Smith, second
vice president; Henry Clark, secretary-treasurer; Samuel
Jenkins, recording secretary; and Rev. Alex Cook, chaplin.
2 Except where specifically discussed, the evidence is substantially
undisputed. As the record does not clearly show the admission of Employer
Southern's Exh. 9. it is hereby admitted in evidence.
Local 1410's regular membership meetings were held on
the first and third Tuesdays of every month. In the
Memorandum of Agreement the parties expressed "the
further understanding that the terms and conditions of
such employment shall later be expressed in greater
detail"; adopted the labor contract in effect between
Sealand and the Union insofar as it pertained to working
conditions and procedures, any collective-bargaining
agreement in effect between ILA, Local 1410, and Mobile
Steamship Association for wage scales; and agreed to
adopt the ILA, Local 1410 - Mobile Steamship Associa-
tion pension, welfare, vacation, and fringe benefits plans.
The record does not reveal the expiration date of the
Sealand agreement, adopted for working conditions and
procedures; the Mobile Steamship Association agreement,
adopted for wages, carried an expiration date of September
30, 1977. An agreement of participation in the plans was
signed by Southern April 19, 1975, and by the trustees of
the plans May 23, 1975, providing coverage of Southern's
employees effective retroactively to November 1, 1974;
Southern made contributions to the plans funds under this
agreement, and also checked off Local 1410 dues.
Southern Vice President Fitzgerald and Local 1410
President Clemon testified taht Fitzgerald submitted a
detailed contract proposal to Clemon in November 1974.
According to Fitzgerald, whom I credit,3 Southern and
Local 1410 then engaged in negotiations and by May 1975
"had just about arrived" at agreement. Both testified that,
before the detailed agreement could be executed, the
International Banana Handlers Council, which had author-
ity to approve agreements for all banana handling locals of
ILA, advised that there could be no further negotiations,
and no contract signed, by any ILA local in the banana
industry until after the Council's convention was held in
July.
In any event, on May 9, 1975, Local 1410 President
Clemon wrote the following letter to Southern President
Samuel Gordon:
Please be advised that the Membership of Local 1410
has voted to cancel the Memorandum of Agreement
between Local 1410 and Southern Stevedoring Compa-
ny unless a new contract is negotiated within sixty days.
This is to request that you meet with us at your
earliest convenience in order to discuss the terms and
conditions of employment of employees of Southern
Stevedoring Company at Mobile, Alabama.
This letter had reference to a regular membership meeting
of Local 1410 held on May 6, 1975. The record does not
reveal the number of members present, and there is
considerable dispute as to what they voted for. The
minutes of that meeting state that motions were carried to
appoint three members of "a banana contract committee";
and "that we will work on the present Banana Agreement
for sixty (60) days." I credit President Clemon, who was
supported by Clayborne Tate, a Local 1410 member, and a
plans trustee, that Clemon's letter conformed with the
3 In general, Fitzgerald's demeanor was more open and candid than
Clemon's.
610
SOUTHERN STEVEDORING COMPANY, INC.
sense of the vote, that the men would work only 60 days
longer under the Memorandum Agreement. 4
After Southern President Gordon received the letter, he
telephone Clemon and reminded him that no detailed
contract could be completed within 60 days because the
Banana Handlers Council convention would not be held
until after that. He told Clemon that, if Southern could not
operate in Mobile after July 6, it would transfer its business
to another port as he did not intend to lose a shipload of
bananas because it could not get anyone to unload them.
Clemon told Gordon he did not want Mobile to lose the
banana ships and that there were men who would unload
them. The two finally agreed that Southern would bring
one ship in after July 6 and see what happened.
On June 17, 1975, another regular meeting of the Local
1410 membership was held. The record shows that Local
1410 President Clemon, Vice President Irby, Recording
Secretary Samuel Jenkins, and plans trustee Clayborne
Tate all were there when the meeting began. The first
motion was made by member Thomas McAboy, to
suspend the rules so that a vote could be taken on applying
for the issuance of a new charter. Member Murray
Gardner opposed the motion vigorously and continuously,
the meeting became disorderly, and police officers came
and took Gardner and President Clemon outside, and an
indeterminate number of members followed them. Vice
President Irby took the chair after Clemon left, and the
motion to suspend the rules was put to a vote and carried.
The minutes state that a motion "that a Charter be issued
for the Operation and the Banana Operation will not be
under ILA Local 1410 Charter any longer," was then
carried by a standing vote of 38 to 0. When Clemon
returned to the meeting, Irby informed him that the
motions had been carried.5
Clemon 6 testified that those who favored the move
"knew the 60 days was going to run out, and they wanted
to [be] in a position to keep the [banana] work in the Port
of Mobile." Member Howard Langer testified he voted for
the new charter because he was concerned about work
continuing to come into the banana wharf. Vice President
Irby said the reason for the application was to become "a
party to the Banana Handlers Council," which was
unlikely to approve a contract by Local 1410 covering
banana work.
4 The balance of self-interest and probability seems to tip toward this
conclusion, rather than toward the testimony of Nelva Simon. the Charging
Party, and Local 1410 vice President Irby. who testified the membership did
not contemplate canceling the Memorandum of Agreement if no detailed
contract was negotiated in 60 days.
s Because it is so improbable, I do not credit Irby and Simon that the
critical motion, as carried, did not contemplate the creation of a separate
local distinct from Local 1410.
' I do not credit Clemon's testimony that he was opposed to the new
charter from the beginning. George Dixon, now president of Local 1410 and
third vice president of the International, credibly testified that Clemon
pleaded with him, in New York on June 10, 1975, "to agree for him to get a
charter."
7 Although Clemon contended it was his secretary who typed his name
and home address on the application, he conceded he was responsible for
adding "and such other work that pay longshore wages up and down the
river of Alabama." which he said Local 1410 had never been given
jurisdiction over. The additional jurisdiction was not included in charter
which was eventually issued to the Respondent Local 1516.
The next day, June 18, 1975, formal application for a
charter requesting "a new Local Union" in Mobile
covering "Banana Handlers and such other work that pay
general longshore wages up and down the river of
Alabama," signed by Shelly Jenkins, Bill Law, Arron
Green, Love Carter, T. R. Boggs, Sheffield Malone,
Bedford Matthews, Curtis Duncan, Samuel Jenkins, and
Matthew Smith, was forwarded to the South Atlantic and
Gulf Coast District of ILA. The application asked that the
charter be mailed to Isom Clemon at his home address.7
The minutes of the June 17 meeting were read at the next
regular meeting of Local 1410, although the record does
not show they were adopted. No objection was raised to
the charter application until Southern entered into a
detailed contract with Local 1516, as discussed belows8
There were no further negotiations between Southern
and Local 1410 for a detailed agreement, and the Banana
Handlers Council never gave its approval for any such
agreement. Clemon's explanation was that by that time
"the membership had voted to get the separate charter,"
and Southern Vice President Fitzgerald was so advised.
The record indicates that both officials considered the
Memorandum of Agreement canceled after July 6. South-
ern nevertheless continued bringing its ships in after the
first was successfully unloaded. No changes were made in
wages or working conditions, and Southern continued
checking off dues for Local 1410 and making its contribu-
tions to the plans on the same basis as before. 9
On July 18 or 19, 1975, the South Atlantic and Gulf
Coast District convention approved the issuance of a
charter reactivating an old Local 1516 which had repre-
sented banana workers in Mobile many years before, and
forwarded the matter to ILA International. Almost 9
months later, on April 7, 1976, ILA International issued to
Local 1516, Mobile, Alabama, a charter for the work of
banana handlers in the Port of Mobile.10
Clemon received the charter and notified Fitzgerald.
Fitzgerald checked with ILA International who informed
him that Local 1516 would have jurisdiction over bananas
and Local 1410 over general cargo.
Local 1516 elected officers: Theodore Boggs, president;
Love Carter, vice president; Curtis Duncan, secretary;
Isom Clemon, business agent and treasurer.
Thereafter, Clemon notified Fitzgerald that the men
wished to meet with him the evening of May 27, 1976, at
R Some years ago, separate charters were issued covering maintenance
employees and employees of the state docks, and those two locals were split
off from Local 1410.
g On May 26, 1975, 3 days after the Local 1410 trustees signed the trust
plans participation agreement on May 23, 1975, three of the union trustees,
George Dixon, Henry Clark, and Claybome Tate, sent a letter to Southern
nullifying their signatures on the ground that the union membership had
never ratified the Memorandum of Agreement with Southern. Apparently
this communication was eventually rescinded, and the trustees continued to
accept Southern's contributions to the plans.
's The South Atlantic and Gulf Coast District. ILA, has chartered
banana locals in Gulf Port, Mississippi; Charleston, South Carolina;
Galveston, Texas; and Tampa, Florida. W. H. Hopkins, secretary-treasurer
of the District, testified, "It has been the policy of the I.L.A. over the years
that when banana [work goes I into a Port to form a Banana Local and issue
a Banana Charter. Because of the type of work that's being done on a
banana ship rather than a conventional ship which is handling general cargo
that longshoreman's [sic I usually handle."
611
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Malaga Inn in Mobile. The following testimony by
Fitzgerald is credited: When Fitzgerald arrived, he was
greeted by a sea of faces, at least 30 to 35 people, all of
whom he recognized at his employees, who had been doing
the banana unloading "since we started in 1974." Among
them, Fitzgerald recalled specifically officers of Local 1410
- Clemon, president; Irby, first vice president; Matthew
Smith, second vice president; Samuel Jenkins, recording
secretary; he also recalled Theodore Boggs, president of
Local 1516, Bill Law, and Shelly Jenkins. Fitzgerald was
told "we are going to have a meeting right now" and the
group assembled in the motel banquet room. Fitzgerald
then read his contract proposal page by page, a process
which took about 2 hours, as many questions were asked
and much debate ensued. Fitzgerald was then asked to
leave the room while the group decided. After 10 or 15
minutes, Boggs invited him to return, telling him "we have
agreed to accept what you are offering," but "we would
like our attorney to review this before we sign it." The
agreement was signed in the attorney's office the next day,
Friday, May 28, 1976.
The agreement states on its face that it is between
Southern Stevedoring Company, Inc., and ILA Local 1516;
that it governs "the payment of wages, working conditions
and terms and conditions of employment in connection
with the work pertaining to the loading or unloading of all
cargoes at the Port of Mobile, Ala."; and that it is effective
until September 30, 1977. It contains a dues-checkoff
clause, but no union-security or hiring-hall provisions. It
was signed by Fitzgerald for the Employer; by T. R. Boggs
as president, and Love Carter as secretary, for Local 1516;
and by Isom Clemon for the ILA. It is undisputed that the
contract is identical, except for the amount of dues to be
checked off, with that negotiated by Southern and Local
1410 as the detailed contract contemplated in their
Memorandum of Agreement, and reflected the current
terms and conditions of employment.
Fitzgerald conceded that no proof of majority represen-
tation was shown by Local 1516. He insisted, however, that
he believed the group at the Malaga Inn "represented the
legitimate consensus of the banana workers that wanted to
do banana work" because of the events described above;
because of information received from ILA that Local 1516
had been chartered to exercise jurisdiction over banana
work; because all those present were "the banana people
that had been doing this job all this time" including all the
top officers of Local 1410; and because "not one objection
was raised."
Vice President Irby testified that about 5:30 p.m. on May
27, 1976, Matthew Smith told him, at the hiring center, that
there was to be a meeting at the Malaga Inn; Irby asked
what it was about, and Smith replied he did not know but
"something big is going on." Although I do not credit Irby
that there were only 15-16 people at the meeting, I do
credit him that Love Carter, vice president of Local 1516,
Sam Harris, Curtis Duncan, Kossuth Bumpers, Bedford
" I do not credit Irby that although he gave Curtis Duncan $10 at
Duncan's request before he sat down, he did not know what it was for until
he read on his receipt that he had become a member of Local 1516; nor his
testimony that he questioned the legality of the meeting before it was over.
Irby is too old a pro not to know when he is joining a union, and
Fitzgerald's account conforms with Clemon's that no objections were raised
during the meeting.
Matthews, Mose McClenton, Arron Green, and Sheffield
Malone, whom Fitzgerald did not name, were present. I
find, as testified to by Clemon, that Irby took an active role
in the discussion and voiced no objections; and that after
the meeting adjourned, Irby asked Clemon if what they
had done was legal, and Clemon said it was, since the
charter had been issued." By the next day, Irby decided to
oppose the action taken, and at the next regular meeting of
Local 1410, held on June 1, he voiced his opposition.
After June 3, Southern ceased checking off 44 cents per
man-hour for Local 1410 as it had been doing, and began
checking off 3 cents per man-hour for the South Atlantic
and Gulf Coast District and 5 cents per man-hour for
Local 1516.12 The trustees of the pension, welfare, etc.
plans are, however, holding Southern's contributions
without cashing its checks on the ground that they cannot
accept Local 1516 as a member.
On June 14, 1976, Henry Clark, secretary-treasurer of
Local 1410, addressed a letter to Southern to the following
effect:
Please be advised in the regular meeting of I.L.A. Local
1410, held June 15, 1976, the members present voted to
recend the letter sent to you dated May 9, 1975 and all
documents be inserted as 1410, that the memorandum
of agreement between Local 1410 and Southern
Stevedoring Company will remain as was.
In July or August 1976, Local 1410 held an election and
the following officers were elected: George Dixon, presi-
dent (and International third vice president); Seymour
Irby, first vice president; Murray Gardner, second vice
president; Nelva Simon, secretary-treasurer; Samuel Jen-
kins, recording secretary; Rev. Alex Cook, chaplin. Irby
testified that, in his campaign for reelection, he promised to
fight to disestablish Local 1516. Irby also testified that he
has requested the International's assistance with regard to
Local 1410's "problem with 1516," but has received no help
from it in resolving the problem.
2. Conclusions
The above facts demonstrate that the Respondents failed
to prove that Local 1516 represented a majority of
Southern's employees on May 27 and 28, 1976, when
recognition was accorded and the collective-bargaining
agreement entered into. By the same token, however, the
General Counsel failed to prove that Local 1516 did not
represent a majority, and it was his burden if the violations
were to be established.13 The General Counsel argues that
the violations were nevertheless established because the
incumbency status of Local 1410 created a presumption
that it was the majority representative, which the Respon-
dents failed to rebut. In my opinion, though, no such
presumption is operable in this case, because Local 1410
abandoned its incumbency status.
iz The Local 1516 checkoff authorizations subpenaed by the General
Counsel bear dates on and after June 6, 1976.
13 Walker's Midstream Fuel d[ Service Co., 208 NLRB 158 (1974):
American Beef Packers, Inc., 187 NLRB 996 (1971), enfd. 463 F.2d 818
(C.A.D.C., 1972).
612
SOUTHERN STEVEDORING COMPANY, INC.
Thus, after repudiating its Memorandum of Agreement
with Southern, its own members, at a regular meeting
attended by and presided over by its responsible officers,
voted for the creation of a new local to which Local 1410's
jurisdiction over Southern's employees would be surren-
dered, and the application itself bore the names of three
Local 1410 officers. No further efforts were made after that
by Local 1410 officers or by the previously elected
committee to pursue a detailed contract with Southern
which Local 1410 was, in any event, proscribed from
consummating by its own intraunion restriction. In fact,
although Southern continued to check off dues for Local
1410, and although it continued its contributions to the
plans, it did so, Fitzgerald testified, only out of concern for
the welfare of its employees. It does appear that Local 1410
acted as the employees' representative in any manner
during the ensuing I months. Nor was there any objection
from any quarter to this state of affairs. Finally, the May
28, 1976, meeting with Fitzgerald at which the Local 1516-
Southern agreement was negotiated was arranged by the
president of Local 1410 and attended by its president, two
vice presidents, and its recording secretary. None of them
voiced any objections to what was going on; none of them
voiced a claim that Local 1410 was the representative of
Southern's employees; and none of them questioned the
majority status of Local 1516. Indeed, although second
thoughts apparently struck Vice President Irby after the
deed was done, it was not Local 1410 which filed the
charge in this proceeding.1
All in all, the situation here seems to be essentially "an
intra-union affair" involving relationships among constitu-
ent local unions and their own district and International. 15
The chartering of the new Local 1516 for the express
purpose of representing the banana-handler employees in
the Port of Mobile conformed with the past practice of
chartering new locals to whom jurisdiction over specific
work was ceded by Local 1410, and with the practice of the
District and the International in chartering locals for the
representation of banana handlers in other Atlantic and
Gulf ports. There is no indication that the District and the
International in approving the realignment of jurisdiction,
were motivated by considerations other than more effective
representation, and the record, as found, fails to show that
the employees involved do not wish to be represented by
the new local chartered specifically to represent them. At
the same time the record does show that no untoward
advantage to the Employer or disadvantage to the
employees ensued. The result has been the encouragement
of stable and effective bargaining relationships not, in all
the circumstances, at odds with the basic principles of the
Act.16
I therefore conclude that the Respondents did not violate
Section 8(a)(2) and 8(bXl)(A) by negotiating, entering into,
or giving effect to their May 28, 1976, collective-bargaining
agreement, and recommend that these allegations be
dismissed.
"4 See General Fibre Box Company, Division of Longview Fibre Company,
219 NLRB 569(1975); Wrought Originals, Inc., 139 NLRB 1435(1962).
'" See J. H. Hamlen d Son, Inc. 180 NLRB 902 (1970).
16 Accord: Associated General Contractors of America, Inc., et al, 182
NLRB 224 (1970): H. L Washum, an Individual Proprietorship d/b/a Los
Angeles - Yuma Freight Lines, et al., 172 NLRB 328 (1968), reversed on other
B. The Foremen
1. Supervisory status
The complaint alleges, and the answer denies, that Dock-
Gang Foremen Kossuth Bumpers, Bedford Matthews,
Aaron Green, and Matthew Baldwin, and Ship-Gang
Foremen C. Small, Howard (Tightrope) Johnson, and Sip
Pettaway are supervisors; and that Ship Superintendent or
Ship Foreman Samuel Jenkins, maintenance man Shelly
Jenkins, truck spotter Bill Law, and timekeeper Samuel
Harris (Gus Hall) are agents of Southern Stevedoring
Company.
As stated above, Stevedoring Superintendent Michael
Shiro and his assistant, George Pedrick, admitted supervi-
sors, were in charge of the banana-unloading operation.
Shiro posts for information of the foremen, the night before
a ship arrives, the number of gangs which will be needed.
There are invariably 24 men in a dock gang; 1" and 26 men,
including 8 riggers, in a ship gang. The dock and ship
foremen hire the gangs about 7 o'clock on the morning ship
is to be unloaded. No one tells them whom to hire, and
they hire whom and where they choose within their own
complete discretion. Riggers begin work at once, and stay
on after the others have finished, placing movable
conveyors in the hatches and afterwards removing them.
Gang members start at 8 a.m. and usually work until the
ship has been unloaded. Shiro spends most of his time,
while the ship is being unloaded, in the hold and Pedrick
on the dock. Each gang unloads about 3,800 boxes an hour
and although Shiro and Pedrick are on the spot directing
operations, Fitzgerald testified it is the foremen's responsi-
bility to see that the flow of boxes on the conveyor is
maintained and to see that they are properly stacked in the
trucks in staggered sequence. Foreman Johnson testified he
is sometimes told "how to work the ship" to keep it from
listing, or the order in which special kinds of bananas
should be brought out, but, he said, "they don't tell me how
to work the men." Foremen do gang work only briefly, in
temporary relief.
Southern accepted Local 1410's advice in selecting as its
original foremen the same men Sealand had employed, as
Southern was, Fitzgerald said, inexperienced in such
matters at that time; since then some changes have been
made and the Company sought the Union's recommenda-
tions as to replacements. The record shows that manage-
ment selections were submitted to a vote of Local 1410
members for their approval. Neither the foremen nor the
gang members have ever been required to be union
members, although most if not all the foremen are. The
foremen's wages were not covered by the Local 1410
Memorandum of Agreement, although they are set in the
Local 1516 contract, currently at S8.50 an hour, 50 cents
more than gang members. Local 1410 Vice President Irby
grounds 446 F.2d 210 (C.A. 9, 1971); Climax Molybdenum Company, 146
NLRB 508 (1964); Cadillac Automobile Company of Boston, 90 NLRB 460
(1950).
17 There is also a layout man, truck spotter, and checker. It is not clear,
however, whether they are included in the dock gang or hired and directed
by the dock foreman.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that foremen were included in the pension and
welfare plans. 18
I agree with the General Counsel that it is highly
improbable, not to say impossible, for Shiro and Pedrick
alone to responsibly direct the activities of up to 180 men
spread over such a wide area engaged in such rapid and
precise activities without depending on their foremen to
make the split-second on-the-spot decisions necessary to
maintain the speed and timing of proper product flow. And
such decisions in my opinion inherently require the use of
independent judgment. Even more decisive of the supervi-
sory status of the foremen is their authority to hire - the
premier indicium of supervisory authority placed in the
statute ahead even of the awesome authority to discharge.
It is the foremen who determine, within their sole
discretion, who of the men standing around their trucks
holding up their cards at the shape-up goes on Southern's
payroll and receives a Southern check for a day's work, and
who does not. And, contrary to the Respondent's conten-
tion, it is of no statutory significance that the work
performed is "simple manual labor" as the Respondent
describes it, that foremen's wage rates are set forth in the
current collective-bargaining agreement; or that Southern
seeks and follows union advice and recommendations in
selecting men for foremen positions. I therefore find that
the dock foremen and the ship foremen are supervisors
within the meaning of Section 2(1 1) of the Act.'
9
Dock-Gang Foreman Kossuth Bumpers. Willie B. Ed-
wards, a member of Local 1410 since 1968 who worked for
Southern two or three times a month in 1974 and 1975 and
twice in 1976, credibly testified as follows: Edwards was
hired by Bumpers at the shape-up on the morning of June
9, 1976, and worked in a truck until about 10:30 or 11 a.m.
when Bumpers asked him if he had signed a paper.
Edwards wanted to know what paper, and Bumpers said
"for 1516." When Edwards said he had not and would not
do so, Bumpers told him, "I might be a long time getting
my check if I didn't sign it . . .said I won't work down
there with him no more if I didn't sign it." At the June 23,
1976, shape-up, after Edwards failed to be selected by
Foreman Small or by Foreman Baldwin, he approached
Bumpers and Bumpers said, "you know what I told you,
Willie .. I already told none of the guys not to hire you,"
and Bumpers would not hire him "not until you sign a
1516."
James Jackson, a 2-month member of Local 1410 who
has worked for Southern three times in 1976, testified
without contradiction that on one occasion Bumpers asked
him if he had signed the Local 1516 form.
'R Both contracts forbad anyone to give orders to the men except the
foreman or an individual appointed by him, but Shiro testified he regularly
gives orders to the men.
19 N. L.R.B. v. Security Guard Service, Inc., 384 F.2d 143 (C.A. 5, 1967),
enfg. 154 NLRB 8 (1965), relied on by the Respondent, is distinguishable on
its facts as the basic duties of the guard sargent found by the Board and the
court in that case not to be a supervisor were identical with the basic duties
of nonsupervisory guards and he had no authority to hire or responsibly
direct them. Nor is N. L RB. v. Master Stevedores Association of Texas, et al..
418 F.2d 140 (C.A. 5, 1969), reversing 156 NLRB 1032 (1966), controlling.
Aside from my obligation to follow the Board absent any disposition by it to
accept the court's view, that case is also factually distinguishable as neither
the Local 1410 nor the Local 1516 contracts with Southern contained hiring-
hall provisions and neither union operates a hiring hall or has a contract
obligation to provide Southern with employees. The foremen here are paid
Bumpers admitted he handed out Local 1516 authoriza-
tion cards, the same as he had for Local 1410 on orders
from timekeeper Sam Harris, he said, and that he probably
gave one to Edwards. He denied the rest of Edwards'
testimony. 20
Dock-Gang Foreman Bedford Matthews. I credit Robert
Harris, a member of Local 1410 for 16 years who worked
regularly for Southern in 1976, and Lesley Collins, a 20-
year member of Local 1410 who worked fairly regularly for
Southern in past years but only three times in 1976, who
testified substantially the same, as follows: On a day in
mid-May Matthews hired the two of them and then after
he hired the rest of his gang he called the two to come take
their cards back, as they did not have jobs after all, "if you
don't sign this 1516 [card], he said you ain't got no job."
When the employees summoned Local 1410 Vice President
Irby to the scene, Matthews pretended he had been joking
and allowed them to work. Collins also credibly testified
that on another day, shortly thereafter, he asked Matthews
for a job and Matthews offered him a Local 1516
authorization card and when Collins refused to sign it, "he
said I wouldn't be able to work." Collins also said
Matthews told him and several men, after the shape-up on
June 24, 1976, "we had to sign, sign with 1516 to work at
the banana dock .... " 21
Dock-Gang Foreman Aaron Green. I credit Robert Wood,
a member of Local 1410 for 5 years who worked off and on
for Southern ever since it began operations in Mobile and
twice in 1976, who testified without contradiction that
about June 8, 1976, Green asked him if he had signed his
Local 1516 card; Wood said he had not; and Green told
him that "I needed to sign it because they was going to
start giving cards out to ship up by and if I didn't have one
he was going to have to hire all them first." James Jackson,
whom I have credited above, testified without contradic-
tion that in May or June Green gave him a Local 1516
card, and afterwards asked him if he had signed it.
Ship-Gang Foreman Howard Johnson. Walter Westry has
been a member of Local 1410 for 8 years; he has worked
for Southern at least once a week since it began operations
in Mobile. He testified that, while he was at work in the
hold during an afternoon in late May, he saw Samuel
Jenkins give Johnson some Local 1516 authorization
forms, and heard him tell Johnson to pass them among the
men; and that Johnson then began passing the forms
around and, "He said if you want to work down here, you
are going to have to sign these forms." Johnson conceded
he passed Local 1516 cards out to his gangs, but he denied
telling them they had to sign in order to work.
wholly by Southern for hiring and directing employees in the interest of
Southern in getting its bananas unloaded in the fastest and most efficient
manner.
20 The testimony of these two employees is mutually consistent and
consistent with testimony by Nelva Simon that Bumpers told him about
June 17, 1976, "that the men down at the banana operations were no better
than he was, that he had to sign the [Local 1516] authorization slip and they
had to sign the slips [if] they got hired down there." I do not credit Bumpers'
denials as his demeanor was not that of a truthful person.
21 Harris and Collins' testimony was mutually consistent and consistent
with testimony by Rev. Alex Cook that Matthews made a similar remark in
his presence. The demeanor of these witnesses was that of honest persons
telling the truth, Matthews' demeanor was just the opposite and he
dissembled on the witness stand; his denials are not credited.
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SOUTHERN STEVEDORING COMPANY, INC.
In this instance, I found Johnson's demeanor for
truthfulness more impressive than Westry's; and I there-
fore credit Johnson.
Ship-Gang Foreman C. Small. Rev. Alex Cook, chaplin of
Local 1410 and a member for over 20 years, has worked
one or two Southern boats a month for 2 or 3 years. I have
credited him heretofore and he testified without dispute
that Samuel Jenkins came down in the hold on the
afternoon of June 3 and gave some Local 1516 authoriza-
tion cards to Small and told him to get the men to sign
them; and that Small responded that he did not see any
sense in it, but he did give them to the men to be signed.
Cook testified that Small again passed cards out to the men
on June 22.
Ship-Gang Foreman Sip Pertaway. Pettaway admitted
that timekeeper Harris told him to distribute Local 1516
authorization cards to his gang and that he did so
sometime in May telling the men to sign if they wanted to.
Conclusions. I can find no merit in the Respondent's
argument that it should not be held responsible for the
conduct found above because no management official
above the rank of foreman authorized it; because it was a
longstanding practice of foremen to pass out Local 1410
cards before the advent of Local 1516: and because the
practice "is grounded on the highly casual nature of
employment on the waterfront." Where, as here, an
employer has endowed its foremen with supervisory
authority as defined in Section 2(11) of the Act, it must
accept responsibility for their conduct in contravention of
the prohibitive sections of the Act, and the fact that similar
conduct has been engaged in in the past or that the
employees whose rights are thus infringed are casual labor
does not absolve an employer from that responsibility.
I have found that Foreman Bumpers threatened employ-
ee Edwards with delay in being paid and with loss of
employment if he did not sign a Local 1516 card; that
Foreman Matthews threatened employees Harris and
Collins with loss of employment; that Foreman Aaron
Green threatened employee Wood with loss of employ-
ment; that Bumpers interrogated Edwards and employee
Jackson about whether they had signed the cards; that
Green similarly interrogated Wood and Jackson; that
Green gave a Local 1516 card to Jackson to sign; and that
Bumpers and Foremen Johnson and Pettaway distributed
cards to their gang members for signature. In the absence
of a union-security contract, such conduct, considered as a
whole and in context, interfered with employees' right to
choose their bargaining representative and unlawfully
assisted Local 1516. I conclude that the Respondent
thereby violated Section 8(a)( ) and (2) of the Act.22
22 See Plastics Plant, Plumbing Fixtures Division, North Industries. 214
NLRB 629 (1974): The Drackett Companv, 207 NLRB 447 (1973); Western
Building Maintenance Co., 162 NLRB 778 (1967). No specific allegation of
unlawful conduct by Foreman Pettaway was alleged, but the evidence was
received without objection and the issue was fully litigated. There was no
allegation, and no clear evidence, against Foreman Matthew Baldwin.2 Contrarv to the General Counsel. the record does not show that
Samuel Jenkins had authority to hire gang members.
C. Ship Foreman, Maintenance man, and
Timekeeper
Samuel Jenkins, called ship superintendent, ship fore-
man, or stevedore, is paid 40 cents an hour more than
foremen and 90 cents more than gang members, his wage
being set in the Local 1516 contract. Fitzgerald testified
Jenkins is primarily "a liasion between the ship and the
dock," relaying information, about such matters as which
types of fruit are to be unloaded in order for designated
trucks to be ready for them, between Shiro and Pedrick
and between them and the foremen.23
Other than the assumption which flows from their
classifications as maintenance man and timekeeper, there
is no record evidence as to the duties and responsibilities of
Shelly Jenkins or Samuel Harris. The Respondent's brief
describes the duties of truck spotter, the classification held
by Bill Law, as that of lining up the trucks in the bays for
loading and guiding them away from the dock when they
have been loaded, but I cannot find any such evidence in
the transcript.
The General Counsel does not contend that these
individuals are supervisors, and there is no evidence that
their efforts to obtain employee support of Local 1516 were
instigated or directed by supervisors or management
personnel. I conclude therefore that the Respondent is not
responsible for the conduct by them testified to, and that
the allegations as to them should be dismissed.
IV. REMEDY
Having found that the Respondent Southern engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and from engaging in any like
or related practices. In order to effectuate the policies of
the Act, I shall also recommend that the Respondent
Southern post notices.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 2 4
Southern Stevedoring Company, Inc., Mobile, Alabama,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with delay in being paid or
with loss of employment if they do not sign authorization
cards for International Longshoremen's Association, Local
1516; interrogating employees as to whether they have
signed such cards; or distributing such cards to its
employees for signing.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action:
24 In the event no exceptions are filed as provided be Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings. conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
615
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at its dock in Mobile, Alabama, copies of the
attached notice marked "Appendix." 25 Copies of said
notice, on forms provided by the Regional Director for
Region 15, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein,
and that it be dismissed entirely as to International
Longshoremen's Association, Local 1516.
25 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with delay in being
paid or with loss of employment if they do not sign
International Longshoremen's Association, Local 1516,
authorization cards; or interrogate employees as to
whether they have signed such cards; or distribute such
cards to our employees for signing.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights under Section 7 of the National Labor
Relations Act, as amended.
SOUTHERN STEVEDORING
COMPANY, INC.
616