Standard Fruit and Steamship Co.

National Labor Relations Board - Board Decisions

Jun 6, 1974

211 N.L.R.B. 121 (N.L.R.B. 1974)

STANDARD FRUIT AND STEAMSHIP COMPANY 121
Standard Fruit and Steamship Company and James
W. Cowan
General Truck Drivers, Chauffeurs & Helpers Local
692, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America
(Standard Fruit and Steamship Company) and
James W. Cowan. Cases 21-CA-11919 and
21-CB-4676
Although there is no evidence in the instant case that
any employee who would have normally been
dispatched to work for Respondent Employer was
denied such employment as a result of Respondent's
unlawful preferential treatment of certain employees,
this is a matter that affects the scope of the remedy
rather than the nature of the violation.
ORDER
June 6, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On February 15, 1974, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief and
Respondent Standard Fruit and Steamship Company
filed cross-exceptions and a supporting brief.
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 his recommended Order.
We find merit in General Counsel's exception to
the Administrative Law Judge's failure to find that
the Respondent Employer violated Section 8(a)(3) of
the Act by giving preference in employment on July
2, 1973, to employees who had picketed on behalf of
the Western Conference of Teamsters at Coachella
Valley, California.2 The facts as found by the
Administrative Law Judge clearly show that on July
2, 1973, Respondent Employer's teamster foreman
told Respondent Union's hiring hall dispatcher to
send him a certain number of employees and to give
priority to those who had engaged in the aforemen-
tioned picketing. The dispatcher complied with this
request by announcing over the public address
system at the hiring hall, "All Coachella bo-s come
to the front" and sending all of the responding
employees to work for Respondent Employer. All of
these employees were employed by Respondent
Employer that day. Thus, it is clear that not only did
Respondent Employer request that preferred treat-
ment by given certain employees on an unlawful
basis but this request was effectuated by both
Respondent Union, through the aforementioned
action of its dispatcher, and Respondent Employer,
through its employment of the employees so referred.
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 as
modified below and hereby orders that:
A. The Respondent Employer , Standard Fruit
and Steamship Company, Long Beach , California, its
officers , agents, successors , and assigns , shall take the
action set forth in the Administrative Law Judge's
recommended Order as herein modified:
1. Insert the following paragraph and reletter
paragraph 1(b) as 1(c):
"(b) Giving preference in employment to employ-
ees who picketed on behalf of the Western Confer-
ence of Teamsters at Coachella Valley, California."
2. Substitute the attached notices for the Admin-
istrative Law Judge 's notices.
B. The Respondent Union , General Truck Driv-
ers, Chauffeurs & Helpers Local 692 , International
Brotherhood of Teamsters , Chauffeurs , Warehouse-
men & Helpers of America, Long Beach, California,
its officers , agents, and representatives , shall take the
action set forth in the Administrative Law Judge's
recommended Order.
I Both General Counsel and Respondent Standard have excepted to
certain credibility findings made by the Administrative Law Judge It is the
Board 's established policy not to o- errule an Administrative Law Judge's
resolutions with respect to credibility unless the clear preponderance of all
of the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3,
1951) We have carefully examined the record and find no basis for
reversing his findings
2 Member Penello finds it unnecessary to pass upon the alleged violation
of Sec 8 (a)(3) because General Counsel has not shown that any employee
was actually discriminated against as a result of Respondent Employer's
unlawful request on this particular day and Respondent Union's apparent
compliance therewith Consequently, this matter cannot materially affect
the scope of the remedy herein
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT request that General Truck
Drivers, Chauffeurs & Helpers Local 692, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America discrimi-
211 NLRB No. 21
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nate against our employees through hiring hall
preference of persons who picketed on behalf of
the Western Conference of Teamsters at Coachel-
la Valley, California.
WE WILL NOT give preference in employment to
employees who picketed on behalf of the Western
Conference of Teamsters at Coachella Valley,
California.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed in Section 7 of the
National Labor Relations Act, in violation of
Section 8(a)(1) of said Act.
STANDARD FRUIT AND
STEAMSHIP COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 849 South Broadway, Los Angeles,
California 90014, Telephone 213-688-5200.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
TO ALL: Members, officers, representatives, and
agents
TO ALL: Employees of Standard Fruit and Steam-
ship Company or applicants or registrants of employ-
ment and persons using our hiring hall, whether or
not members of General Truck Drivers, Chauffeurs
& Helpers Local 692, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America
WE WILL NOT cause or attempt i,u cause
Standard Fruit and Steamship Company, its
officers, agents, successors, or a signs, to discrimi-
nate against its employees in violation of Section
8(a)(3) of the Act, through hiring hall preference
of persons who picketed on behalf of the Western
Conference of Teamsters at Coachella Valley,
California.
WE WILL NOT in any other manner cause or
attempt to cause Standard Fruit and Steamship
Company, its agents, successors, or assigns, to
discriminate against its employees in violation of
Section 8(a)(3) of the Act, through hiring hall
preference of persons who picketed on behalf of
the Western Conference of Teamsters at Coachel-
la Valley, California.
WE WILL NOT restrain or coerce employees of
Standard Fruit and Steamship Company, its
officers, agents, successors, or assigns, in the
exercise of the rights guaranteed in Section 7 of
the Act.
GENERAL TRUCK
DRIVERS, CHAUFFEURS &
HELPERS LOCAL 692,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN &
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 849 South Broadway, Los Angeles,
California 90014, Telephone 213-688-5200.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Long Beach, California, on December
4, 1973. Separate charges were filed against the above-
named two Respondents by James W. Cowan on July 3
1973. Order consolidating cases and consolidated com-
plaint were issued on the two charges August 23, 1973. The
consolidated complaint alleges that Respondent, General
Truck Drivers, Chauffeurs & Helpers Local 692, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, hereinafter referred to as
Union, violated Section 8(b)(1)(A) and 8(b)(2) of the
National Labor Relations Act, as amended, hereinafter
referred to as the Act. The consolidated complaint also
alleges that Respondent Standard Fruit and Steamship
Company, hereinafter referred to as Employer, violated
Section 8(a)(1) and (3) of the Act.
Issues
The principal issues are ( 1) whether the Umon violated
the Act by dispatching from its hiring hall to the Employer,
on an illegally preferential basis, casual workers who had
STANDARD FRUIT AND STEAMSHIP COMPANY
engaged in picketing activities, on behalf of the Western
Conference of Teamsters, in Coachella Valley, California,
and (2) whether Employer refused to employ workers,
through the Union, who had not engaged in such picketing
activities.
A third issue, first raised at hearing by counsel for
Respondent Employer, is whether the decision herein
should be deferred for referral of the matter to an
arbitrator.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses , and to argue orally. Briefs, which have been
carefully considered, were filed on behalf of the General
Counsel and both Respondents.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
ARTICLE VII-SENIORITY
* * * *
123
(b) Validated Seniority List
(1) Each Company shall initially prepare and
maintain a thirty-man, validated seniority list in
accordance with the selection of the three-man
committee agreed to in the May 7, 1971,
Memorandum of Agreement between the parties,
which lists shall be updated each quarter, com-
mencing the first week of January, April, July and
October of each year. All swampers employed in
the Company's truck loading operation shall be
selected first from its validated seniority list and
additional work shall be performed by casual
swampers called from the Hiring Hall by the
Companies.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Employer is a corporation with its principal
office in New Orleans, Louisiana, and with a place of
business in Long Beach, California. Employer is engaged
in the growth, transportation, and wholesale distribution of
bananas, pineapples, coconuts, and other fresh fruit. In the
normal course and conduct of its business operations,
Employer annually purchases and receives goods valued in
excess of $50,000 directly from suppliers located outside
the State of California. I find that Respondent Employer is
engaged in commerce, and in a business affecting com-
merce , within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Truck Drivers, Chauffeurs & Helpers Local 692,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
The Union and the Employer have had a collective-
bargaining relationship several years; the current contract
was effectuated June 1, 1971, and is effective at the time of
this decision pursuant to a provision thereof rciating to
continuance by mutual consent, beyond the termination
date of June 30, 1973. The bargaining .'nit covered by the
contract embraces "all swampers who are employees . . .
and excludes all other employees. Swampers are defined in
the contract as (in brief) men who load, unload, or
otherwise physically handle banana cargoes.
Pertinent provisions of the contract relating to seniority
are the following:
(4) Replacements to the validated seniority list
will be made from the casual work force by the
three-man committee.
5. Qualification for the above-named categories
of validated seniority lists shall be on a non-
discriminatory basis and shall not be based on, or
in any way affected by, union membership, by-
laws, rules, regulations, constitutional provisions,
or any other aspect or obligations of union
membership, except as provided in Article III
(Union Security) of this Agreement.
* * * *
(e) Non-seniority list swampers shall be ordered from
the Hiring Hall in accordance with the existing rules
and practices.
The Employer provides the Union with a list of names of
persons the Employer considers acceptable for casual
swamper work covered by subsection (e), above. In those
instances wherein Employer requires casual swampers to
augment or supplement regular employee-swamper crews
with validated seniority, the Union customarily dispatches
such name-listed casuals through its hiring hall on a
preferential basis. That preference is for valid business
reasons (experience, reliability, and known capability), and
is found to be proper.
In those instances wherein more casuals are needed than
can be supplied from the list of acceptables provided to the
Union by the Employer, the Union sends casuals from its
general pool of immediately available persons who have
registered their names at the hiring hall for general work
assignment.
On July 2, 1973, Mr. James Allen, Teamsters foreman for
the Employer, telephoned Mr. Louis Gunn, hiring hall
dispatcher for the Union, and requested casual swampers
for work then available.' The number requested was not
available from the "acceptable" list provided to the Union
by the Employer, hence the remaining casuals (five) were
I The number requested is in dispute It could have been 19 or 22 or
possibly some other total In any event, the discrepancy is immaterial.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtained from the general pool of hiring hall workers then
present and available . The total number of requested
casuals was sent to the Employer, and there all of those
dispatched were assigned work.
B. The Dispute
Mr. James Cowan, the Charging Party, alleged that he
is on the list of casual swampers acceptable to the
Employer; he registered for work at the Union's hiring hall
July 2, 1973; the Union's hiring hall dispatcher called for
casual swampers on said date , limited to those casuals who
had picketed on behalf of the Western Conference of
Teamsters at Coachella Valley, California; and Cowan was
unlawfully prevented from obtaining work on said date
because of the limitations thus imposed by the Union,
acting for and on behalf of the Employer.
C. Pertinent Testimony
James Cowan, hereinafter referred to as Cowan, testified
that he has been a member of Local 692 since 1958, and
that he worked for the Employer as Teamsters foreman
from 1959 through 1962. After working elsewhere in the
interim , he returned to the Employer in September or
October 1972 as a casual swamper. Cowan testified that he
reported to the Employer directly for about 2 months, but
that , commencing in December 1972, he was required to
report to the Union's hiring hall for dispatch to the
Employer (except for one short period of time). Cowan
stated that he was on the list of persons given by the
Employer to the Union as acceptable for work as a casual
swamper.
Cowan testified that he reported to the hiring hall about
7:30 a.m . on July 2, 1973, and registered with Louis Gunn,
the dispatcher, for work. Cowan stated that the dispatcher,
hereinafter referred to as Gunn, announced on the
loudspeaker about 8 a.m. "all men who picketed in
Coachella, please come to the window." Cowan said Gunn
handed out about 18 or 19 cards for work, 1 of which he
saw to be for swamper work at the Employer's dock site.
Cowan said he asked Gunn about 8:10 a.m. why he was
not dispatched to the Employer, and Gunn replied that
James Allen, foreman at the Employer's, had requested
"all of the men that picketed Coachella Valley." Cowan
testified that he talked with James Allen, hereinafter
referred to as Allen, about 8:20 a.m. the same day and that
Allen denied asking for pickets-he said he merely asked
the dispatcher to send 22 men. Cowan stated that he knew
some of the men dispatched to the Employer, and knew
they had picketed at Coachella.
Gunn testified that his customary practice, as hiring hall
dispatcher, is to provide casual swampers for the Employer
first from a preferred list provided by the Employer, and
second from the regular work list if preferred names are
exhausted. He stated that he departed from customary
practice July 2, 1973, after receiving a call from Allen to
"send 22 men down there and send the Coachella Boys
first." Gunn testified that he made up 22 cards, went to the
public address system, and said "all Coachella boys come
to the front." He said he first dispatched only "Coachella
Boys" "as far as I knew" and then dispatched the
remainder of five from his regular list of casual workers, as
instructed by Allen.
Gunn testified that Cowan was on the preferred
(acceptable to the Employer) list, but that Cowan did not
report for work and register July 2, 1973. He stated that he
talked with Cowan later that morning after workers were
dispatched for the day.
Gunn testified that , of those men listed as "preferred" or
"acceptable" by the Employer, some picketed at Coachella
and some did not, but that it was his understanding the
morning of July 2 that he dispatched only picketers,
although he later discovered such was not the case.
Allen testified that he is Teamsters foreman for the
Employer and is in charge of requesting casual swampers
from Local 692. He said he ordered 19 men July 2, 1973,
but that he mentioned nothing about picketers when he
called Gunn. He said he put all 19 men to work, and that
he hired 1 man that same day who was not dispatched by
Gunn, but who was on the preferred list.
Analysis and Conclusions
Counsel for Respondent Employer raised at hearing and
discussed in his brief the question of possible deferral to
arbitration under the Collyer doctrine,2 and argued that
deferral is required by the facts of this case. However, the
basis for argument is vague and not persuasive. Respon-
dent's brief concludes, in general manner, that the
arbitration clause of the contract between the Employer
and the Union is broad and should be used to settle this
dispute; it also argues, again generally, against one of the
frequently accepted reasons for not deferring under Collyer
(disinterest of the union), without mentioning any other
applications of the doctrine.
Counsel for the General Counsel referred in his brief to
the same reason for not deferring (union disinterest), but
concluded that such reason, as expounded in Kansas Meat
Packers,3 is applicable in this case.
Kansas Meat Packers differs somewhat from this case in
that, in the former, there was clear and explicit antagonism
between the charging parties and the union's business
agent, as well as between the charging parties and the
respondent employer. No such antagonism is shown in this
case and, further, the hiring hall dispatcher (Gunn) readily
testified that he called for Coachella picketers before
calling for other casual workers. The Union does not rely
upon Collyer, nor does it argue for deferral. Thus,
Respondent Employer seeks arbitration, Respondent
Union remains silent on this issue, and the Charging Party
seeks Board resolution of the issues without arbitration.
The Collyer issue was first raised at close of hearing-the
subject was not litigated.
The contract between Respondent Employer and Res-
pondent Union includes provisions for adjusting griev-
ances, and for arbitration, when differences arise between
the Company and "an employee." "Employee" is not
defined in the contract; the General Counsel contends that
2 Collyer Insulated Wire, 192 NLRB 837
1 198 NLRB No 2.
STANDARD FRUIT AND STEAMSHIP COMPANY 125
Cowan is not an employee, and that, therefore, deferral
would be improper.
Although Cowan was not an "employee" in the usual
sense of the word, since he only worked occasionally and
even those occasions were of his own choosing, he certainly
would be an "employee" on any particular day on which
he worked. He did not work July 2, 1973, as a result of
which he was not an "employee" on that day. Whether or
not he would be precluded from claiming access to
arbitration provisions of the contract between the Employ-
er and the Union, if his failure to work was caused by the
Employer's and the Union's discrimination, is a nice
question. However, that question need not be answered, in
view of the finding hereinbelow that Cowan did not
register for work on July 2, 1973.
The contract provides, inter alia, for adjustment of
grievances through four steps and for arbitration; the
union and its business agent are integral parts of all steps
and the arbitration proceedings. Although the facts of the
Kansas Meat Packers case differ from the facts of this case
so far as union antagonism is concerned, the underlying
principle of Kansas Meat Packers is applicable.4 Resolution
of the controversy herein would be in the hands of a board
of three members, one of which would be a union
representative and one of which would be agreed on by the
union representative and the employer representative.
Clearly Cowan's cause would be jeopardized in such a
proceeding, since he had filed charges against the Union
and the Employer based on the same facts. Deferral for
arbitration herein would be improper and is declined.
Employer
A. Counsel for Respondent Employer first contends
that Cowan did not report and register for work on July 2,
1973, and that, therefore, there was no discrimination or
violation of the Act.
Gunn testified that Cowan did not report and register;
Cowan testified that he did. Both Gunn and Cowan were
credible witnesses, and resolution of the difference in their
testimony on this point must depend upon some factor or
factors other than just assessment of individual credibility.
Gunn testified from his July 2 dispatch list. Testimony
shows that the hiring hall was a very busy place that
morning, with about 64 or 65 men seeking casual
employment at 8 a.m. After the men were dispatched to the
jobsites, about 8:10 a.m., Gunn and Cowan talked about
Cowan's wanting to work that morning. Cowan testified he
arrived at the hall about 7:30 a.m. Cowan testified that
Gunn asked for Coachella picketers at 8 a.m., with which
testimony that of Gunn's is not inconsistent.
It is possible that Cowan did, in fact, stop by the window
where Gunn was busily engaged in working with 64 or 65
names. However , it is also possible that Cowan negligently
failed to make certain that Gunn saw him and accepted his
registration . Testimony of all witnesses is clear on the
procedure, whereby a registrant announces his presence at
the dispatch window, after which the dispatcher records
the name of the registrant for possible call later in the
morning. It would be easy in the noise and bustle of the
early morning for either Cowan or Gunn to make a
mistake resulting in failure of Cowan 's name to be on the
list. Further, it is possible that Gunn simply failed to record
Cowan's presence, through inadvertence or haste. In any
event, the discrepancy is resolved in favor of Gunn's
version because (1) Gunn testified from his dispatch list
prepared at the time of the incident, (2) Gunn's testimony
is not inconsistent with the record and the circumstances,
(3) Gunn's demeanor and testimony were those of a
forthright and honest witness, and (4 ) no reason was shown
for Gunn's intentionally failing to register Cowan. The
testimony and record show that Gunn did not, on July 2,
1973, know who did or who did not picket at Coachella.
That knowledge was acquired later.
Having concluded that Cowan was not registered for
work on July 2, 1973, it is necessary to find, and it is hereby
found, that Cowan lost no work or pay on July 2, 1973,
because of discrimination by either Respondent Employer
or Respondent Union, or by both of them.
B. Counsel for Respondent Employer next contends, in
his brief, that an employer "may pick and choose" its
employees "absent any discrimination," and he cites
Pacific Maritime Association, 172 NLRB 234 (1968),as his
authority.
The charges herein are based on an alleged request by
employer made to the hiring hall dispatcher to supply
casual workers, with preference to be given to persons who
engaged in picketing activities on behalf of the Western
Conference of Teamsters at Coachella Valley, California.
Employer's Teamsters foreman and representative for
the purpose of work crew maintenance is James Allen, who
has been such foreman approximately 2 years. Allen
testified that he requested Gunn to send 19 (or 22) casual
swampers to Employer's worksite on July 2, 1973, but that
he said nothing about picketers. That testimony is
contradicted by Gunn, who was a credible witness; his
version is accepted. However, the question still remains:
Was that request by Allen, in and of itself, a violation of
the Act? The question is thus narrowed of necessity, since
no discrimination is shown by the record. Allen was not
discriminated against-he was not registered for work.
Those persons who registered July 2 and were dispatched
were put to work whether or not they had picketed at
Coachella; at least five men who did not picket are shown
by the record to have answered Gunn's call to the window,
albeit contrary to Gunn's preference instructions, and all
five were sent to Allen and put to work by him. One other
man, who was on Employer's acceptable list but who had
not picketed, was hired by Allen "off the street," without
going through the hiring hall. The General Counsel did not
establish that anyone was discriminated against on July 2,
by either Respondent or both of them.
In view of the record thus made, the question above must
be answered in the negative, so far as Section 8(a)(3) is
concerned. The essence of Section 8(a)(3) of the Act is
discrimination. A simple request, or a thought, in and of
itself without action being taken thereon, cannot constitute
4 A recent, and relevant , application of this principle appears in Laborers'
International Union of North America , Local Union No. 127, AFL-CIO (A &
E Construction, Co.), 206 NLRB No. 128.
126 DECISIONS OF NATIONAL LABO?. RELATIONS BOARD
a violation of Section 8(a)(3). It is found that Respondent
Employer did not violate Section 8(a)(3) as charged.
However, it is found that the Employer did request that
the Union discriminate against Respondent's employees by
preferential hiring of casual workers who picketed on
behalf of the Western Conference of Teamsters at
Coachella Valley, California, resulting in such preferential
action by Union in violation of Section 8(b)(2) and (1)(a)
of the Act. It is found that such request and its resultant
discrimination by the Union constituted an interference
with, restraint or coercion of, employees in the exercise of
the rights guaranteed in Section 7 of the Act, thereby
violating Section 8(a)(1) of the Act.
Union
A. The Union is in a somewhat different position.
Section 8 (b)(2) of the Act reads, in part, that it shall be an
unfair labor practice for a labor organization or its agents
"to cause or attempt to cause an employer to discriminate
against an employee in violation of subsection (a)(3)."
As shown above, no discrimination resulted from Allen's
request made to Gunn. Again, a question remains-did
Respondent Union, through its dispatcher Gunn, attempt
to cause Respondent Employer to discriminate against
anyone?
Allen denied that he requested Gunn to give first
preference to Coachella picketers, but as discussed above,
his version of his telephone conversation with Gunn is not
credited. Gunn's version is credited, and Gunn testified
that Allen requested priority for picketers. If matters had
stopped there, without further action, Respondent Union
would not have violated the Act. However, Gunn testified
that, not only did he ask that Coachella picketers come to
the window first, he thought at the time that all who came
to the window were former picketers. The fact that some
who came to the window actually had not picketed, and
the fact that some nonpicketers may have been dispatched
following exhaustion of the "acceptable" list, is not
material . Gunn's attempt to discriminate stands clear and
unequivocal-he believed, at the time, that he was giving
preference to picketers, and he did all he could to give such
preference. An unsuccessful attempt is, nonetheless, an
attempt.
B. The protracted, bitter, and sometimes violent labor
and union quarrels in Coachella Valley during 1973 are
common knowledge. Daily stones were disseminated
nationally by the press, radio, and television. Knowledge is
taken of that activity and the fact that the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America was deeply involved.
It is clear from the record herein that Respondent Union
dispatched casual workers from the hiring hall July 2, 1973,
with priority first given to union members who had
picketed at Coachella. Regardless of the nature or cause of
the dispute at Coachella, and regardless of whether or not
the Union intended that its priority treatment of picketers
would encourage union membership, that treatment would
in fact have the effect of encouraging such membership.
Coachella is small and isolated and is in the hottest portion
of the Southwest Desert. Picketing there, and during the
acrimonious dispute involved, was an excellent test of
union loyalty. It would be difficult to find a better
illustration of the close bond between a union and its
members. Publicly announcing at a hiring hall, crowded
with both union members and nonmembers present, that a
reward was, in effect, being given for meritorious services
rendered to the union certainly has the effect of encourag-
ing membership. The Supreme Court of the United States
stated in Radio Officers Union v. N. L. R. B.: 5
Encouragement and discouragement are "subtle
things" requiring "a high degree of introspective
perception." Cf. Labor Board v. Donnelly Garment
Co., 330 U.S. 219, 231 [19 LRRM 2317]. But, as noted
above, it is common experience that the desire of
employees to unionize is raised or lowered by the
advantages thought to be attained by such action.
Moreover, the Act does not require that the employees
discriminated against be the ones encouraged for
purposes of violations of §8(a)(3). Nor does the Act
require that this change in employees' "quantum of
desire" to loin a union have immediate manifestations.
D. Respondent Employer states in its brief "In short,
there is nothing wrong with company and union agreeing
that casual employees will be routed through the union
hiring hall ..." That is correct, so far as it goes. However,
it is wrong for an employer to request that its union agent
discriminate through its hiring hall against nonpicketers,
and for a union to discriminate against nonpicketers,
thereby encouraging union membership, as in this case. It
is found that Union did so discriminate, in violation of
Section 8(b)(2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Employer as set forth in
section III, above, and the activities of Respondent Union
occurring in connection v ith the operations of Respondent
Employer described in section I, above, have a close,
intimate, and substantial 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.
V. THE REMEDY
Having found that Respondent Employer has engaged in
unfair labor practices within the meaning of Section 8(a)(l)
of the Act and having found that Respondent Union has
engaged in unfair labor practices within the meaning of
Section 8(b)(2) and (1)(A) of the Act, it will be recom-
mended that the Board enter a cease-and-desist order.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Standard Fruit and Steamship Compa-
5 347 U.S 17(1954)
STANDARD FRUIT AND STEAMSHIP COMPANY
ny is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent General Truck Drivers, Chauffeurs &
Helpers Local 692, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent Standard Fruit and Steamship Compa-
ny violated Section 8(a)(1) as alleged in the complaint, but
did not violate Section 8(a)(3) as alleged in the complaint
and said Respondent did interfere with, restrain, and
coerce its employees in the exercise of rights guaranteed in
Section 7 of the Act.
4. By causing or attempting to cause Respondent
Employer to discriminate against employees in violation of
Section 8 (a)(3) of the Act, through hiring hall preference of
persons who picketed on behalf of the Western Conference
of Teamsters at Coachella Valley, California, Respondent
Union has engaged in unfair labor practices within the
meaning of Section 8(b)(2) and (1)(A) of the Act.
5. The aforesaid unfair labor practices described in
paragraphs 3 and 4, above, are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in the case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER6
A. It having been found and concluded that Respon-
dent, Standard Fruit and Steamship Company, has not
engaged in discrimination in violation of Section 8(a)(3) of
the Act as charged, that allegation of the complaint is
dismissed in its entirety. However, it having been found
and concluded that said Respondent Employer did
interfere with, restrain, and coerce its employees through
Respondent Union in the exercise of rights guaranteed in
Section 7 of the Act, thereby violating Section 8(a)(1) of
the Act, Employer shall:
1. Cease and desist from:
(a) Requesting that Respondent Union discriminate
against Employer's employees through hiring hall prefer-
ence of persons who picketed on behalf of the Western
Conference of Teamsters at Coachella Valley, California.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act, thereby violating Section 8(a)(1) of
the Act.
2. Take the following affirmative action wh' 'i it is
found is necessary to effectuate the purposes of the Act:
(a) Post at its Long Beach, California, operation and
facilities , copies of the attached notice marked "Appendix
A."7 Copies of said notice on forms provided by the
6 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
127
Regional Director for Region 21, after being duly signed
n y an authorized representative of Respondent Standard
Fruit and Steamship Company, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
B. Respondent, General Truck Drivers, Chauffeurs &
Helpers Local 692, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause American Fruit and
Steamship Company, its agents, successors, or assigns, to
discriminate against its employees in violation of Section
8(a)(3) of the Act, through hiring hall preference of persons
who picketed on behalf of the Western Conference of
Teamsters at Coachella Valley, California.
(b) In any other manner causing or attempting to cause
Respondent Employer, its agents, successors, or assigns, to
discriminate against its employees in violation of Section
8(a)(3) of the Act.
(c) Restraining or coercing employees of Respondent
Employer, its successors or assigns, in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which it is
found is necessary to effectuate the policies of the Act:
(a) Post in conspicuous places in its business office,
hiring hall, and meeting places, including all places where
notices to its members customarily are posted, copies of the
attached notice marked "Appendix B."8 Copies of said
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notices to the
Regional Director for Region 21, for posting by Respon-
dent Employer at all locations where notices to employees
customarily are posted, if said Respondent is willing to do
so.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
7 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 "
8 See In 7,supra