Teamsters and Allied Workers, Hawaii Local 996

National Labor Relations Board - Board Decisions

Dec 27, 1961

134 N.L.R.B. 1556 (N.L.R.B. 1961)

1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate unit. However, as these employees, together with the employees
represented by the Petitioner, would also constitute an appropriate
overall unit, we shall provide that if the Petitioner wins the election
among such employees it may represent them as part of its existing
unit.5
Accordingly, we shall direct elections as follows :
We shall direct an election in a voting group of all inside salesmen,
buyers, and sales promotion and plant clerical employees of the Em-
ployer at its wholesale hardware establishment at Birmingham, Ala-
bama, excluding employees of its major appliance division and all
other employees, guards, and supervisors as defined in the Act. If a
majority of the employees in this group vote for the Petitioner, they
shall be deemed to constitute a part of the existing warehouse and
truckdrivers unit represented by the Petitioner and the Regional
Director shall issue a certification of results to that effect. If a
majority of the employees vote for the Intervenor, they will be taken
to have indicated their desire to continue to be separately represented
by the Intervenor and the Regional Director shall issue a certification
of representatives to that effect.
We shall also direct a separate election in a unit of all office clerical
employees of the Employer at its wholesale hardware establishment
at Birmingham, Alabama, excluding employees of its major appliance
division and all other employees, guards, and supervisors as defined
in the Act, as to whether employees wish to be'represented by Peti-
tioner or the Intervenor or by neither.
[Text of Direction of Elections omitted from publication.]
I See Pabst Brewing company , 109 NLRB 371
Teamsters and Allied Workers, Hawaii Local 996; and Arthur
A. Rutledge and Harry Kuhia, Jr., -its Agents and Joaquin
Amorin , George Baptista , Daniel Brum , James N. P. Kaneakua,
Franklin Kelekoma, Jacob Merseberg, Makoto Murata, Libert
Nakaahiki , Joseph Nakamura , Tarao Nakamura , Takeo Saka-
moto, and Chai Tin and Twentieth Century-Fox Film Corpo-
ration , Party to the Contract
Teamsters and Allied Workers, Hawaii Local 996; and Arthur
A. Rutledge and Harry Kuhia, Jr., its Agents and Yukio
Arashiro and Twentieth Century-Fox Film Corporation, Party
to the Contract. Cases Nos. 37-CB-8 and 37-CB-9. Decem-
ber 27, 1961
DECISION AND ORDER
On July 29, 1960, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that the
134 NLRB No. 157.
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1557
Respondents had engaged and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the General Counsel and the Respond-
ents filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent that they are consistent
with our findings, conclusions, and order, hereinafter set forth.
1. Although we agree with the Trial Examiner that Twentieth
Century-Fox,' through Fred Meyer, its director of industrial relations,
and the Respondent Union, through Respondent Arthur Rutledge,
president and business manager, entered into an oral arrangement,
consensus, or agreement 2 for the hiring of drivers and special equip-
ment operators for the Company's "South Pacific" project on the
Island of Kauai, Hawaii, we do not agree with his further finding
that such agreement did not reflect a mutual understanding between
the parties whereby the Company was committed to utilize the Re-
spondent Union as an exclusive labor source for its transportation
workers and to require all such workers, as a condition of employment,
to be and remain members of the Respondent Union in good standing.
The relevant facts with respect to the existence of an agreement are
not seriously disputed. As found by the Trial Examiner, Meyer
wrote to Respondent Rutledge on July 2, 1957, setting forth a summary
of his understanding as to the agreement reached by the parties.'
Meyer stated :
.. . you have assure us that without limitation . . . you will
... furnish us Teamster Members of the AFL-CIO in such
numbers, as may . . . be necessary to properly service all our
Construction requirements. . . . The men so furnished by you
during their employment by us will be and remain members in
good standing of the AFL-CIO.' [Emphasis supplied.]
1 Hereinafter referred to as the Company.
2 Hereinafter referred to as the agreement
3 As found by the Trial Examiner , Respondent Rutledge subsequently advised Meyer in
substance that, insofar as is material herein , Meyer's letters of July 2 reflected the under-
standing of the parties.
9 A second letter, dated July 2, 1957, was sent by Meyer to Respondent Rutledge in his
capacity as president of the Honolulu Building and Construction Trades Council. While
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The letter went on to state that as to the production phase of the
project, the Company was not asserting its right under its "Studio
Agreement" with the Respondent Union's International and Local
#399 to recruit all of its drivers from its Los Angeles, California,
studio but would exercise such right only to the extent of sending three
men, and that "[a]s regards our additional transportation require-
ments for Production, you agreed to furnish and we agree to use . . .
such additional transportation help . . . so required...."
In our opinion, the reference in the letters to the Respondent Union's
obligation to furnish Teamsters members of the AFL-CIO and in
such numbers as may be necessary to properly service all of the Com-
pany's construction requirements, and the employees so furnished will
be and remain members in good standing of the AFL-CIO points to
an intent of the parties to establish closed-shop conditions of
employment.
Our conclusions that closed-shop conditions of employment were
intended is confirmed by the record evidence of the parties' hiring
practices. Such evidence clearly demonstrates that the Company
agreed to use the Respondent Union as an exclusive source of labor and
that union membership was to be a condition of employment. Thus,
as the record shows, Respondent Rutledge, while enroute to Hawaii,
told George Palamountain, a company supervisor, that Respondent
Kuhia,5 who had already been hired by the Company, "would be the
shop steward and hire all the drivers" Palamountain would require,
as he would be familiar with the drivers' union membership status.
Since it appears that Kuhia did in fact become the focal point of all
hiring, it is difficult not to conclude that the actual practice was re-
flective of an agreement designating the Union as the exclusive
source of the Company's transportation workers. As Palamountain
testified at the hearing concerning Kuhia's status and function, "I
would order a certain amount of men from Harry [Kuhia]. In other
words I would relay my needs to Harry and he would either call them,
he evidently had secured a list on the Island, which I had no time to do.
He Was like a hiring hall, sort of, and these were the men who came
to work."'
that labor organization is not involved in these proceedings , the letter underlines the
parties' interests in seeing that all labor furnisher] for the construction phase of the project
would be members of the AFL-CIO, and thereby in maintaining a closed-shop condition.
Thus, the letter addressed itself to the commitment Respondent Rutledge made to furnish
the necessary building craftsmen for the construction phase of the project, and stated :
"Specifically, you have assured us that with and through the component parts of your
Trades Council, you will make available for us qualified competent Building Tradesmen to
serve our needs. We, in turn, agree to utilize the services of such journeymen in
such numbers as, in our judgment , may be necessary to fulfill our needs You have further
assured us that all craftsmen so furnished by you and utilized by us in connection with our
con8truction program at Kauai are, and during the term of their employment by us will
be, members in good standing in the AFL-CI . . "
5 Harry Kuhia, Sr , a vice president of the Respondent Union
6 The record also shows that after receivi ig Palamountain 's request , Kuhia would inform
two of the Respondent Union's agents , Aki and Arashiro, who had been authorised by the
TEAMSTERS AND ALLIED WORKERS,, HAWAII LOCAL 996 1559
The record further demonstrates that the Union, with the acqui-
escence and consent of the Company's supervisor, conditioned employ-
ment on membership in the Union. Thus, on his arrival at the project
location, Respondent Rutledge, in Kuhia's presence, under circum-
stances detailed in the Intermediate Report,' informed a group of men
who were then engaged in a strike against a local construction concern,
and whom the Respondent Union was interested in organizing, that he
had an agreement with the film Company which recognized the Re-
spondent Union as the Company's exclusive agency for the procure-
ment of drivers and special equipment operators. He further informed
them that to qualify for referral, they would have to be Teamsters
members and pay an initiation fee, dues, and a weekly assessment, and
that all such payments were to be made to Kuhia.
Although most of the men, on Respondent Rutledge's representa-
tion that they had to join the Respondent Union, executed cards au-
thorizing the Respondent Union to represent them, few, if any, made
immediate payment of the initiation fee. Many of them thereafter
were 'referred to work on the project and were hired by Respondent
Kuhia. When, however, in an election conducted by the Board on
July 18, 1957, among the Nilson employees, these employees unani-
mously rejected the Respondent Union as their representative, the
Respondents immediately took measures to terminate the employment
of these employees." On this occasion Respondent Kuhia informed
Palamountain, as the latter credibly testified, that the drivers were
being terminated because "they were not in good standing with Local
996." Palamountain raised no objection to such action on the part of
Kuhia. Furthermore, when one discharged employee complained to
Construction Foreman Ledgerwood about his discharge, Ledgerwood
replied, as the Trial Examiner found, that he was powerless to correct
the situation since the Respondent Union had a contract with the
Company. We find in this conduct of the parties nothing less than evi-
dence of the fact that Respondent Kuhia was serving not only as an
agent of the Company with supervisory authority over the hiring
function, but that with the Company's knowledge and consent he was
also serving as agent for the Respondent Union to whom there had
Union to recruit transportation workers , of the number of men ordered by Palamountain
The agents would then contact prospective employees and tell them to report to Kuhia at a
designated place.
' On Rutledge ' s arrival on Kauai he was informed that the Operating Engineers was,
contrary to Rutledge's instructions, seeking to organize the drivers of the Nilson Company,
a local construction concern, and that the Engineers had called a strike. Rutledge then
indicated that he would assert his organization 's authority to organize all transportation
help
8 It is noted that when the results of the election were communicated to Respondent
Rutledge by Kuhia and Arashiro , the latter , as the Trial Examiner found, questioned
Respondent Rutledge about his standing as a Teamsters organizer Respondent Rutledge,
without prior consultation with the Company, advised Arashiro that he could work as a
driver or equipment operator in the film project, if h, wished Arashiro reported on the
following day, July 19 , 1957, and was hired as a driver
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been delegated, by agreement of the parties, exclusive control over the
hiring processes, and that in that capacity he had conditioned em-
ployment with the Company on membership in good standing with
the Respondent Union.
Although in his letter to Rutledge, Meyer made no reference to
union membership as a -condition of employment for the production
phase of the project, the evidence shows that the unlawful hiring prac-
tices instituted by the Respondents during the construction phase of
of the project carried over to the production 9 work as well. Thus, as
found by the Trial Examiner, on August 20, 1957, Kuhia told com-
plainant Merseberg, one of the employees terminated by Kuhia be-
cause he was not in good standing with the Union, that he would have
to "pay" to secure reemployment. Merseberg thereafter paid $35, of
which $25 was applied to an initiation fee and $10 for August-
September dues. Four days later Merseberg was reemployed, on an
intermittent basis, to the end of the contruction and through the pro-
duction phases of the project. None of the other complainants who
had been discharged paid any further money for dues or initiation
fees and, except for Tarao Nakamura who worked 1 day in October,
none of them were reemployed.
In finding that Teamsters membership was not imposed as a con-
dition of employment the Trial Examiner relied primarily on the fact
that no more than 20 of the 89 transportation workers were Teamsters
members prior to employment and that only 13 became members there-
after, and that 26 of these 89 employees never paid any initiation
fees, dues, or weekly assessments. However, such fact, in view of the
circumstances of this case, is not conclusive on the question whether
the parties by agreement imposed unlawful conditions of employment
and sought to effectuate such agreement. When Rutledge arrived on
Kauai, on July 5, only a very few of the avialable transportation
workers were Teamsters members. The construction phase of the proj-
ect was getting underway. The Respondent Union and its agent,
Kuhia, were faced with the necessity of providing the Company with
a sizeable number of transportation workers within a period of a few
days. As the Trial Examiner found, the Respondent Union sought,
through its agents, to induce all available transportation workers to
join its organization and to pay the required initiation fee, and insofar
as can be gathered from the record all applicants for employment
signed union membership cards. It is clear, however, that Kuhia
could not wait until all the men he needed had paid their fees. He did
thereafter make every effort to have them pay their initiation fees,
dues, and assessments. The record shows that he did hire those men
who had signed cards and, because of their subsequent rejection of
the Respondent Union, he replaced them as being no longer members
Production began about the middle of September 1957.
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1561
in good standing. In view of these circumstances and the entire
record, we are not persuaded that membership in the Respondent
Union was not sought to be imposed as a condition of employment.10
In fact it was achieved in substantial part.
Accordingly, we find on the record as a whole that by entering into
and giving effect to an exclusive hiring agreement which imposed dis-
criminatory conditions of employment in violation of Section 8(a) (3)
and (1) of the Act, Respondents violated Section 8 (b) (1) (A) and (2)
of the Act."
2. We also find, as alleged, that as the Respondent Union was not
the majority representative of the Company's drivers and equipment
operators at the time the agreement with the Company was entered
into, the Respondent Union thereby further violated Section
8 (b) (1) (A) of the Act.12
3. We agree with the Trial Examiner, for the reasons set forth in
the Intermediate Report, that the Respondents violated Section
8(b) (1) (A) of the Act by stating to employees and prospective em-
ployees that they would have to join the Respondent Union in order
to qualify for employment with the Company, by threatening em-
ployees with physical force unless they paid their initiation fees, dues,
and assessments to the Respondent Union, and by threatening em-
ployees with discharge for failure to pay such moneys in the absence
of a lawful agreement."
4. We agree with the Trial Examiner, for the reasons set forth in
the Intermediate Report, that the Respondents unlawfully coerced
various employees of the Company to pay initiation fees, dues, and
weekly assessm4its, and with the further finding that the Respond-
ents attempted to cause and did cause the Company to unlawfully
terminate the employment of Joaquin Amorin, George Baptista,
James Kaneakua, Franklin Kelekoma, Jacob Merseberg, Libert
Nakaahiki, Joseph Nakamura, Tarao Nakamura, and Chai Tin in
violation of Section 8(a) (3) of the Act and that they thereby violated
Section 8(b) (2) and (1) (A) of the Act. However, in so doing, we
also find that in engaging in such conduct the Respondents were also
giving effect to the unlawful hiring agreement. We also agree with
the Trial Examiner that the evidence is insufficient to warrant a find-
ing that the Respondents caused the Company to discharge Daniel
Brum, Makato Murata, Takeo Sakamoto, and Yukio Arashiro in
violation of the Act.
5. Although we have found, contrary to the Trial Examiner, that
the Respondent Union and the Company were parties to an agreement
which imposed union membership as a condition of employment, we
10 See General Seat and Back Manufacturing Corporation , 117 NLRB 1223, 1235.
11 Ebasco Services Incorporated , 107 NLRB 617, 618
' International Ladies' Garment Workers' Union v N.L R B., and Bernhard -Altmann
Texas Corp , 366 U.S. 731, affg 280 F. 2d 616, enfg. 122 NLRB 1289.
13 See Houston Maritime Association , Inc , et at., 121 NLRB 389, 393
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nevertheless agree with the Trial Examiner that the Respondents did
not violate Section 8(b) (5) of the Act. Like the Trial Examiner,
we believe Section 8(b) (5) was intended to cover situations where
employees, otherwise lawfully compelled to join a labor organization
as a condition of employment, were required to pay excessive or dis-
criminatory fees for such membership.
THE REMEDY
Having found that the Respondents engaged in certain unfair labor
practices, we shall order them to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act.
Having found, contrary to the Trial Examiner, that the Respond-
ents, at a time when they were not the majority representative of the
Company's employees, entered into, maintained, and gave effect to an
exclusive hiring agreement which imposed unlawful discriminatory
conditions of employment, we shall therefore order them to cease and
desist from engaging in such conduct, and to cease acting as such rep-
resentative until certified by the Board.14 We have furthermore
found, in agreement with the Trial Examiner, that the Respondents
unlawfully coerced various employees into paying initiation fees,
dues, and weekly assessments as a condition of employment. We
shall, therefore, as recommended by the Trial Examiner, and apart
from any question as to the legality of the agreement, direct the
Respondent Union to reimburse all such employees for the initiation
fees, dues, and weekly assessments that they were coerced into paying.15
Although we agree with the Trial Examiner that complainants
Joaquin Amorin, George Baptista, James Kaneakua, Franklin
Kelekoma, Jacob Merseberg, Libert Nakaahiki, Joseph Nakamura,
Tarao Nakamura, and Chai Tin were unlawfully deprived of their
employment and are for such reason entitled to backpay for the
period of such discrimination, we do not, however, adopt his findings
as to the specific amounts due such complainants for the following
reason:
The General Counsel did not allege in the complaint that he would
litigate an issue of backpay at the hearing. Nevertheless, at the out-
set of the hearing, the General Counsel requested the Trial Examiner
to determine the amount of backpay which may be due any of the
complainants, and to incorporate such findings, if any, in his recom-
mended order. The Respondent Union objected to this procedure,
asserting that litigation of a backpay issue was premature at that
stage- of the proceeding and that, in any event, it had had no prior
notice of the General Counsel's intentions to litigate such issue. The
14 International Ladies' Garment Workers' Union v. N.L R B , supra
15 See Local 60, United Brotherhood of Carpenters etc. v. N.L.R.B. (Mechanical Ean-
dling Systems), 365 U.S 651. Compare Duralite Co., Inc., 132 NLRB 425.
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1563
Trial Examiner permitted the General Counsel to present evidence
on the amount of alleged backpay due the complainants , and there-
after made certain findings of amounts due on backpay . The Re-
spondent Union offered no evidence on such issue , and has excepted
to the Trial Examiner 's action in this matter and to his findings and
recommendations therein. Wholly apart from any other considera-
tions, we find that the Respondents were not adequately apprised of
the General Counsel 's intention to litigate a backpay issue in the in-
stant proceeding, and were not given an adequate opportunity to liti-
gate such issue. In view thereof , we think the Respondent Union's
exception to the Trial Examiner 's findings and recommendations is
well taken . We shall, therefore , defer the litigation of the backpay
issue to the compliance stage of this proceeding. Accordingly, we do
not adopt any of the Trial Examiner's findings and recommendations
with respect to this issue.
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 the Respondent Union, Teamsters
and Allied Workers, Hawaii Local 996, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, and its officers, representatives, agents, successors,
and assigns, and Respondents Arthur A. Rutledge and Harry Kuhia,
Jr., and their representatives, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Entering into, maintaining, or giving effect to any exclusive
hiring agreement, arrangement, or understanding with Twentieth
Century-Fox Film Corporation which unlawfully conditions the hire
of applicants for employment upon membership in Respondent Union,
or which unlawfully conditions the hire of applicants for employ-
ment upon being and remaining members of any affiliated labor or-
ganization, except as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
(b) Causing or attempting to cause the Company to discriminate
against Joaquin Amorin, George Baptista, James Kaneakua, Franklin
Kelekoma, Jacob Merseberg, Libert Nakaahiki, Joseph Nakamura,
Tarao Nakamura, and Chai Tin, or any other of its employees or
applicants for employment, in violation of Section 8 (a) (3) of the Act.
(c) Acting as the exclusive bargaining representative of any of
the employees of Twentieth Century-Fox Film Corporation for the
purpose of dealing with said Company concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment unless and until said Union shall have been cer-
tified by the Board as such representative.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Restraining or coercing the Company's employees or appli-
cants for employment in the exercise of rights guaranteed in Section 7
of the Act, as amended, (1) by causing or attempting to cause the
Company to discriminate against such persons in violation of Section
8(a) (3) of the Act; or (2) by threatening employees with physical
violence, denial of employment, or discharge, unless such employees
paid initiation fees, dues, and weekly assessments to the Respondent
Union.
(e) In any other manner restraining or coercing employees of, or
applicants for employment with, the Company, in the exercise of the
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, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act, as amended :
(a) Excepting Respondents Rutledge and Kuhia from the terms
of this paragraph, make whole Joaquin Amorill, George Baptista,
James Kaneakua, Franklin Kelekoma, Jacob Merseberg, Libert
Nakaahiki, Joseph Nakamura, Tarao Nakamura, and Chai Tin for
any loss of pay they may have suffered by reason of the discrimination
practiced against them in the manner and to the extent set forth in
the section of the Intermediate Report entitled "The Remedy," as
modified by "The Remedy" section of the Board's Decision and Order.
(b) Excepting Respondents Rutledge and Kuhia from the terms
of this paragraph, reimburse each of the transportation workers for-
merly employed by Twentieth Century-Fox Film Corporation on that
firm's "South Pacific" project for any and all moneys unlawfully
exacted from them for initiation fees, dues, and weekly assessments,
in the manner and to the extent set forth in the section of the Inter-
mediate Report entitled "The Remedy," as modified by "The Remedy"
section of the Board's Decision and Order.
(c) Preserve and, upon request, make available to the Board or its
agents, all records necessary to analyze the amounts due under the
terms of this Order.
(d) Post at the Respondent Union's business office and meeting
halls and at the offices or places where Respondents Rutledge and
Kuhia conduct their business in behalf of the Respondent Union in
Honolulu, Hawaii, copies of the notice attached hereto marked "Ap-
pendix." 16 Copies of said notice, to be furnished by the Regional
Director for the Twentieth Region, shall, after being duly signed by
an authorized representative of the Respondent Union and by Re-
11 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."
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1565
spondents Rutledge and Kuhia, be posted by the said Respondents
immediately upon receipt thereof and be maintained by them for a
period of 60 consecutive days, in conspicuous places, including all
places where notices to members and other employees using Respond-
ent Union's hiring halls are customarily posted. Reasonable steps
should be taken by the Respondent Union to insure that these notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director of the Twentieth Region, in writ-
ing, within 10 days of the date of this Order, what steps they have
taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated complaint be, and it
hereby is, dismissed insofar as it alleged that the Respondents caused
Twentieth Century-Fox Films Corporation to discharge Daniel
Brum, Makoto Murata, Takeo Sakamoto, and Yukio Arashiro in viola-
tion of the Act.
APPENDIX
NOTICE TO ALL MEMBERS OF TEAMSTERS AND ALLIED WORKERS, HAWAII
LOCAL 996, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AND TO FORMER
EMPLOYEES OF TWENTIETH CENTURY-Fox FILM CORPORATION
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 :
WE WILL NOT enter into, maintain, or give effect to any exclu-
sive hiring agreement, arrangement, or understanding with
Twentieth Century-Fox Film Corporation which unlawfully con-
ditions the hire of applicants for employment upon membership
in Teamsters and Allied Workers, Hawaii Local 996, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or which unlawfully conditions the hire of
applicants for employment upon being and remaining members
of any affiliated labor organization, except as authorized in Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL NOT cause or attempt to cause the Company to dis-
criminate against Joaquin Amorin, George Baptista, James
Kaneakua, Franklin Kelekoma, Jacob Merseberg, Libert Naka-
ahiki, Joseph Nakamura, Tarao Nakamura, and Chai Tin, or any
of its employees or applicants for employment in violation of
Section 8 (a) (3) of the Act.
WE WILL NOT act as the exclusive bargaining representative of
any of the employees of, Twentieth Century-Fox Film Corpora-
tion for the purpose of dealing with it concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other conditions of employment unless and until we have been
certified by the Board as such representative.
WE WILL NOT restrain or coerce the said Company's employees
or applicants for employment in the exercise of rights guaranteed
in Section 7 of the Act, as amended, (1) by causing or attempting
to cause the Company to discriminate against such persons in
violation of Section 8(a) (3) of the statute, or (2) by threatening
employees with physical violence, denial of employment, or dis-
charge, unless such persons paid initiation fees, dues, and weekly
assessments to us.
WE WILL NOT in any other manner restrain or coerce employ-
ees of, or applicants for employment with, Twentieth Century-
Fox Film Corporation, in the exercise of the 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 organi-
zation as a condition of employment, as authorized by Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL make whole Joaquin Amorin, George Baptista, James
Kaneakua, Franklin Kelekoma, Jacob Merseberg, Libert Naka-
ahiki, Joseph Nakamura, Tarao Nakamura, and Chai Tin for
any loss of pay they may have suffered by reason of the discrimi-
nation practices against them.
WE WILL reimburse each of the transportation workers formerly
employed by Twentieth Century-Fox Film Corporation on that
firm's "South Pacific" film project, for any and all moneys unlaw-
fully exacted from them for initiation fees, dues, and weekly
assessments.
TEAMSTERS AND ALLIED WORKERS, HAWAII
LOCAL 996, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
Dated---------------- By-------------------------------------
(ARTHUR A. RUTLEDGE, President, Teamsters and
Allied Workers, Hawaii Local 996, International
Brotherhood of Teamsters, (Chauf eurs, Ware,
housemen and Helpers of America)
Dated---------------- By-------------------------------------
(HARRY KUHIA, Jr., Vice President , Teamsters and
Allied Workers, Hawaii Local 996, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1567
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Upon charges duly filed and served, the General Counsel of the National Labor
Relations Board caused a consolidated complaint and notice of consolidated hearing
to be issued and served upon Teamsters and Allied Workers, Hawaii Local 996,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, to be designated as the Respondent Union in this report.
Copies of the consolidated complaint and notice were also served upon Arthur A.
Rutledge and Harry Kuhia, Jr., as the Respondent Union's agents; these individuals,
named and served as individual Respondents, will be designated in this report as
Rutledge and Kuhia, respectively. The consolidated complaint essentially alleged,
in the General Counsel's behalf, that each of the Respondents designated had engaged
in unfair labor practices affecting commerce, within, the meaning of Section 8 (b) (1)
(A), 8(b)(2), and 8(b)(5) of the National Labor Relations Act, as amended,
61 Stat. 136. Thereafter, territorial counsel for the Respondent Union and Rutledge
filed an answer; concurrently, a separate answer was filed in Respondent Kuhia's
behalf. Certain preliminary allegations of the consolidated complaint were ad-
mitted; each of the Respondents, however, denied the commission of any unfair
labor practice. (Certain questions have arisen in this consolidated case with respect
to the significance of some formal admissions made in behalf of each Respondent;
the ultimate contentions advanced by the General Counsel's representative and
counsel for the Respondents, with respect to the significance of these admissions, will
be noted elsewhere in this report.) Thereafter, while the hearing was in progress,
amendment of each Respondent's answer was permitted, upon motion. Rules and
Regulations of the National Labor Relations Board, Series 8, Section 102.23.
Amendment of the consolidated complaint, in certain limited respects, was also
permitted.
Pursuant to the General Counsel's notice of consolidated hearing, numerous hear-
ing sessions with respect to the issues were thereafter held at Los Angeles, California,
and Lihue, Kauai, Territory of Hawaii, on various dates between November 15,
1958, and March 4, 1959, both dates inclusive, before the duly designated Trial
Examiner. The General Counsel, the Respondent Union, Rutledge, and Kuhia
were each represented by counsel. (At the outset, two Los Angeles hearing sessions
were held. Counsel authorized to represent the Respondent Union and Rutledge
filed an appearance in their behalf; Kuhia, however, was not represented. When the
hearing was resumed, thereafter, at Lihue, Kauai, the attorney previously authorized
to represent the Respondent Union and Rutledge reported his authorization to
represent Kuhia also.) Each of the parties was afforded a full opportunity to
participate, to be heard, and to introduce evidence pertinent to the issues. Upon
the completion of the testimonial presentation, at a Los Angeles hearing session,
counsel indicated their desire to file briefs. These briefs, subsequently filed during
April and May 1959, have been duly considered.
Upon the entire testimonial record in the case, the documentary evidence received,
and my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Twentieth Century-Fox Film Corporation-to be designated as Fox or Twentieth
Century-Fox, alternatively, throughout this report-is a Delaware corporation, with
its principal office located at 444 West 56th St., New York 19, New York. It
maintains a studio at 10201 West Pico Blvd., Los Angeles 35, California, where it
is engaged primarily in the production and distribution of motion pictures. Twen-
tieth Century-Fox and its wholly owned subsidiaries annually distribute films valued
in excess of $100,000 to exhibitors located throughout the United States, its Terri-
tories, and foreign countries; they annually receive film rentals in excess of $500,000
from such exhibitors.
(These factual conclusions have been based upon the jurisdictional allegations of
consolidated complaint and a stipulation by counsel for the Respondent Union and
Rutledge with respect to their accuracy; the Respondent Kuhia, because of his lack
of representation by counsel at the initial Los Angeles hearing sessions, cannot be
said to have joined in the stipulation. At the outset of the territorial hearing ses-
sions, however, as previously noted, counsel for the Respondent Union and Rut-
ledge entered an appearance for Kuhia also. Despite a subsequent reference by
the General Counsel's representative to the relevant stipulation, noted for the record
on behalf of the Respondent Union and its president, counsel for these Respondents,
newly designated as Kuhia's representative, did not announce any reluctance on
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the part of the latter to stipulate Twentieth Century-Fox's involvement in commerce
within the meaning of the Act, as amended. In the light of the record considered as
a whole, despite his failure to make a formal acknowledgment with respect to the
involvement of Twentieth Century-Fox in commerce, I find the Respondent Kuhia
bound by the previously stipulated admissions of his counsel. In any event, the firm's
involvement in commerce has previously been officially noted, and would seem to
be patent. Twentieth Century-Fox Film Corporation, 96 NLRB 1052, 89 NLRB
109; Columbia Pictures Corporation, et al., 82 NLRB 568, 598; Association of Mo-
tion Picture Producers, Inc., et al., 79 NLRB 466, 478. I so find.)
Throughout the period with which this case is concerned, Twentieth Century-Fox
was engaged in preparing to film the motion picture "South Pacific" on the island
of Kauai, Territory of Hawaii, and in the actual consummation of that project.
With due regard for the available evidence, which the Respondents have not
seriously contested, I find that Twentieth Century-Fox was, throughout the period
with which this case is concerned, an employer engaged in commerce and business
activities which affect commerce within the meaning of Section 2(6) and (7) of the
Act, as amended. In view of the jurisdictional standards which the Board presently
applies-outlined in Siemons Mailing Service, 122 NLRB 81, and related cases-I
find that assertion of the Board's jurisdiction in this case would be warranted and
necessary to effectuate the statutory objectives.
11. THE LABOR ORGANIZATIONS INVOLVED
Teamsters and Allied Workers , Hawaii Local 996, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
admittedly constitutes a labor organization within the meaning of Section 2(5) of
the Act, as amended . Throughout the period with which this case is concerned,
Arthur A. Rutledge functioned as its president and business manager, and Harry
Kuhia, Jr., was its vice president . Upon the entire record-which includes certain
formal admissions with respect to their official status, and evidence with respect
to their conduct while in office-Rutledge and Kuhia clearly deserve characteriza-
tion as agents of the organization. By virtue of their agency relationship, I find,
conduct legitimately attributable to them which can be said to have involved any
Section 8(b) unfair labor practice may be considered binding upon the organization,
whether or not such conduct may have been previously authorized or subsequently
ratified . See Section 2(13) of the Act, as amended.
(These conclusions have been reached on the basis of the formal record, both
testimonial and documentary . In this connection , however, note should be taken
of the fact that Kuhia's formal answer initially included various admissions with
respect to the status of the Respondent Union as a labor organization , the status
of Rutledge as a union official , the president 's agency relationship to the Respondent
Union , and his own status as the vice president of that organization ; his answer
merely denied his agency relationship to the Respondent Union within the "impli-
cations and meanings" of the General Counsel's relevant allegation . The formal
answer filed in behalf of the Respondent Union and Rutledge , also, included various
admissions with respect to the status of the Respondent Union as a labor organiza-
tion , and the official status of Rutledge and Kuhia as its president and vice president,
respectively . By virtue of their clear-cut failure to explain or deny, specifically,
the consolidated complaint's factual allegations with respect to the existence of an
agency relationship , these Respondents , obviously , have waived any right to object
to their acceptance as true. Kuhia's timely denial of the General Counsel 's legal
contention that his position as a union official involved an agency relationship has
been rejected, however, on the basis of the testimonial record.)
The International Union of Operating Engineers , designated as the Operating
Engineers in this report , must also be considered a labor organization within the
meaning of Section 2(5) of the Act, as amended.
III. THE UNFAIR LABOR PRACTICES
A. Issues
The allegations of the consolidated complaint in this case, which have been con-
troverted in most significant respects, raise several issues. These may be summarized
as follows:
1. Whether the Respondent Union-committed by certain conduct attributable to
Respondents Rutledge and Kuhia particularly-became privy to a collective-
bargaining agreement, arrangement, or understanding with Twentieth Century-Fox
which provided, and in practice required, that all drivers and special equipment
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1569
operators employed to assist production of the motion picture "South Pacific" on the
island of Kauai, Territory of Hawaii, (a) would be hired, assigned to their employ-
ment, and discharged exclusively by and through the Respondent Union, and par-
ticularly by and through Kuhia; (b) would be required to designate the Respondent
Union as their bargaining agent; and (c) would be required to acquire and retain
good-standing membership in the designated labor organization.
2. Whether the Respondent Union, acting through Respondents Rutledge and
Kuhia as its officers, agents, and representatives, required drivers and special equip-
ment operators on the Twentieth Century-Fox film project to pay excessive and
discriminatory initiation fees as conditions precedent to their acquisition of union
membership, in accordance with the provisions of the collective-bargaining agree-
ment, arrangement , consensus , and hiring practice noted.
3. Whether the drivers and special equipment operators employed by Twentieth
Century-Fox on the "South Pacific" project were required to pay initiation fees,
dues, assessments, and other moneys to the Respondent Union in accordance with the
provisions of the collective-bargaining agreement, arrangement, understanding, and
hiring practice to which reference has been made.
4. Whether the Respondent Union-committed by certain conduct of the Re-
spondents Rutledge and Kuhia, particularly the latter as an agent or representative
of both Twentieth Century-Fox and the Respondent Union-attempted to cause
and did cause the employer in question to discharge certain employees for reasons
statutorily proscribed.
Upon his contention that affirmative answers would be warranted with respect
to each issue presented, the General Counsel's representative has requested the Trial
Examiner to make appropriate remedial recommendations . These would presum-
ably have to include particularized conventional recommendations that the Re-
spondent Union , Rutledge, and Kuhia cease and desist from the pursuit of any
course of conduct found to involve an unfair labor practice. The General Counsel's
representative has, however , requested a recommendation , also the Respondent Union
refund all initiation fees, dues, assessments , and other moneys collected by the
Respondents from persons employed on the Twentieth Century-Fox film project,
together with a further recommendation that the Respondent Union make whole
specific employees subjected to discrimination in the course of their employment, by
the payment of certain designated amounts to each.
B. Background
1. The studio agreement
Trade agreements to govern the wages , hours, and working conditions of trans-
portation workers in the motion picture industry of southern California and allied
industries have been negotiated and effectuated since 1933 ; International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America has regu-
larly been privy to these agreements , jointly with various local organizations. For
a number of years-not particularized in the record-various motion picture pro-
ducers have been represented in contract negotiations by the Association of Motion
Picture Producers ; the agreements negotiated by the Association representatives with
the International and various Teamsters locals have routinely been memoralized in
separate identical agreements , executed by representatives of the interested labor
organizations and each producer, individually. Throughout the period with which
this case is concerned , the agreements maintained and effectuated by the Association's
member producers were parallel agreements executed on October 26, 1955, with a
January 30, 1959, expiration date. (These agreements were all amended on Feb-
ruary 25, 1957; the amendments, however, dealt with matters not now material.)
Twentieth Century-Fox Film Corporation, an Association member, was privy to
such an agreement; the labor organization signatories were Studio Transportation
Drivers, Local No. 399, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, and the International noted.
The trade agreement in question included a coverage clause , pursuant to which
each of the parties signatory agreed that its provisions would be considered applicable
to various listed employee classifications:
employed by the Producer in the State of California and whose services
are rendered in the production of motion pictures under the supervision of the
Producer's executives managing its studios in Los Angeles County, California ...
With respect to each employee covered by the agreement, specific provisions estab-
lished wage scales, hours of employment , and conditions of employment for studio
630849-62-vol. 134-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work , nearby location work-defined to include those locations outside of the
studio zone at which the employees are not lodged overnight but return to the studio
or their homes at the end of any workday-together with distant location work.
Distant locations were contractually defined as locations at which regular studio
employees subject to the agreement are required to remain and be lodged overnight.
In this connection, also, the agreement contained a special provision that:
When units working on Distant Locations in the eleven Western States, rent
or buy additional equipment . . . the Drivers of said equipment . . . shall
work under conditions and wages not less favorable than those stipulated
above .. .
The agreement included a provision that studio automotive equipment-taken to a
distant location in the United States , its Territories , or Canada-must be operated
by studio employees subject to the agreement 's terms. With this exception , studios
engaged in the production of motion pictures at locations distant from the Los
Angeles area were considered free to fill positions specified in the agreements with
employees hired at the distant location site. In this connection , the record estab-
lishes that employees hired locally at distant locations might be paid by the producer
at rates contractually established for studio drivers engaged in distant location
work; alternatively , they might be paid at the prevailing wage scale for comparable
work in the distant location area. As previously noted , producers were contractually
obligated to pay locally hired transportation workers rates no less favorable than
the rates which studio drivers subject to the trade agreement under consideration
would receive , but only in the 11 Western States.
When this commitment was initially made by the producers-pursuant to some
trade agreement with Local No. 399 and its International organization prior to the
1955-59 agreement now under consideration-the area within which the commit-
ment became applicable coincided with the territorial jurisdiction of the Western
Conference of Teamsters , a constituent unit of the International to which Local
No. 399 belonged . These were the States located , wholly or partially, west of the
Continental Divide, particularly . During 1947 or 1948 , however, the Western
Conference 's territorial jurisdiction was extended to permit the affiliation of Team-
sters locals active in Hawaii , Alaska, and the three westernmost Canadian Provinces.
Since that time, Studio Transportation Drivers Local No. 399 has sought contractual
commitments from producers with Association membership under which locally
hired drivers on distant locations throughout the Western Conference 's territorial
jurisdiction would be employed under wage scales and conditions of work no less
favorable than those of studio drivers assigned to such distant locations . No such
commitments have been given. Particular producers have agreed , upon occasion
to pay locally hired transportation workers contractually established "studio" rates
or "distant location" rates ; these agreements , however, appear to have involved
ad hoc commitments informally negotiated.
2. Employee recruitment for the "South Pacific" production
Throughout the period with which this case is concerned , Respondent Rutledge
functioned in a dual capacity . Elsewhere in this report , reference has been made
to his status as the Respondent Union 's president and business manager; additionally,
however, he functioned as president of the Honolulu Building and Construction
Trades Cc-ancil , with which the Respondent Union was affiliated.
In March 1957, Eric Stacey-previously designated by Twentieth Century-Fox
to serve as unit manager for the firm 's projected "South Pacific" production-
visited Rutledge at his Honolulu office to discuss the terms and conditions under
which craftsmen essential to the production could be employed locally . The repre-
sentations made by Rutledge , in response to Stacey 's inquiry , have not been detailed
for the record ; they appear to have been summarized , however, in letters dis-
patched to Stacey on March 15 , 1957. Over Rutledge's signature as president
and business manager of the Respondent Union , Stacey was advised that the or-
ganization would "follow" the general wage rates, working rules , and other working
conditions established pursuant to the industry contract currently effective between
various producers and Local No . 399, Studio Transportation Drivers. (Stacey was
also told that the Respondent Union would consider all work done away from
Honolulu as location work. ) As president of the Honolulu Building and Construc-
tion Trades Council , Rutledge advised Stacey that his inquiry with respect to the
availability of "competent building tradesmen" for the "South Pacific" project had
been reviewed with various local union representatives . The unit manager was
assured that the Honolulu Building and Construction Trades Council would "co-
operate" to assure a supply of "qualified journeymen " for work , under wage scales
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1571
and working conditions established pursuant to the trade agreement currently ef-
fective between IATSE and various producers.
With respect to the transportation workers it may be noted, also, that Rutledge
reaffirmed his March position, taken in the Respondent Union's behalf, in a June 3,
1957, letter to the Twentieth Century-Fox unit manager.
Meanwhile, on the island of Kauai itself-where Twentieth Century-Fox expected
to produce "South Pacific" as a motion picture-various employees interested in
unionization had formed their own organization under Building and Construction
Trades Council auspices. Specifically, under the leadership of Raymond X. Aki,
a local businessman , most of the craftsmen interested had joined an island local
of the United Brotherhood of Carpenters and Joiners of America, with territorywide
jurisdiction; other craftsmen, however, under circumstances to be noted elsewhere
in this report, had chosen Operating Engineers affiliation.
(Considerable testimony was proffered and received with respect to the origin
and history of this effort to achieve employee unionization, generally, on a territorial
outer island. None of the issues presented for determination, however, suggest a
need for detailed factual findings with respect to this aspect of the situation. Briefly
noted, the record establishes that: (1) The Honolulu Building and Construction
Trades Council, when apprised of the possibility that organizational effort on Kauai
might be fruitful, authorized its Carpenters Union affiliate to enroll all craftsmen
on that island; (2) a territorial representative of the Carpenters Union appointed
Aki his Kauai business agent, responsible for the organizational drive; (3) the latter
proceeded to enroll workers as members of the Carpenters Union, pursuant to his
authorization, without regard to their varied craft skills; (4) various employees
recruited for membership in this fashion determined, informally, to name the organi-
zation which had enrolled them the Kauai Council of Trades, despite the absence
of any charter for the group so designated; and (4) several meetings of the organiza-
tion were subsequently held. The available evidence establishes, also, that Inter-
national Representative Never of the Operating Engineers concurrently designated
Aki as "part-time" business agent on Kauai for his organization; that various em-
ployees of Edwin F. Nilson, contractor, and the Kauai Machine Works, particularly,
elected to apply for Operating Engineers membership; and that Aki accepted their
membership applications for the last-named organization during the month of May
1957, approximately. I so find.)
Late in the spring of 1957, when the plans of Twentieth Century-Fox with respect
to its "South Pacific" film project became generally known, the employees thus
organized apparently made up a substantial group of Kauai residents available for
possible employment connected with the production.
Reliable, probative, and substantial evidence is lacking with respect to the circum-
stances under which Twentieth Century-Fox representatives may have sought to
establish local Kauai contacts to determine the availability of local labor. Hearsay
testimony received without objection indicates, however, the establishment of a
Movie Liaison Committee by the Kauai Chamber of Commerce, to cooperate with
the film corporation's "South Pacific" production unit, and to assure the local avail-
ability of materials and equipment and an adequate labor supply. Pat Shannon,
local businessman , appears to have been designated as the Committee 's agent to
locate local craftsmen whose services might be required.
Shannon, subsequent to his designation as Liaison Committee representative,
appears to have conferred with Aki with respect to the availability of various crafts-
men. I so find. On June 13, 1957, Aki, purportedly in his capacity as a representa-
tive of "Kauai Unit-AFL-CIO Council of Trades," dispatched a letter to Chairman
Robert R. Weir of the Movie Liaison Committee which read as follows:
This letter is to notify you that we guarantee to furnish all personnel within
our jurisdiction , including all crafts and teamsters during the filming of "South
Pacific" on Kauai by 20th Century Fox.
In the event we are unable to supply from our members specific craftsmen or
personnel , we will procure same immediately to facilitate production.
We are desirous of full cooperation between your office, 20th Century Fox
and ourselves and are most anxious to expedite the early successful completion
of "South Pacific."
Pursuant to arrangements later made, Aki agreed to refer applicants for employment
when requested by Shannon or some other Twentieth Century-Fox representative.
Referral slips were prepared in the name of "Council of Trades-Kauai, AFIr-CIO";
these called for the entry of information with respect to the date of any referral,
the name, address , and social security number of the person referred , the name of
the prospective employer, the job classification to be filled, and the wage rate to be
paid . The forms also called for the signature of the Council 's business representa-
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive, or-as things turned out-the signature of some assistant designated by him.
Aki's testimony, which I credit in this connection, establishes his achievement of a
preliminary understanding with some Twentieth Century-Fox representative-not
specified with particularity for the record-that employees hired locally for the film
project would be paid "studio" rates; ultimately, there appears to have been a con-
sensual commitment by Fox representatives that locally hired employees would be
paid at rates equivalent to those established under various Los Angeles agreements
for studio employees assigned to "distant location" work. I so find.
C. The agreement between Respondent Union and Twentieth Century-Fox
1. The parties confer
Late in June 1957, Rutledge visited southern California to attend a Western
Conference of Teamsters meeting. On July 1, he conferred with Fred S. Meyer,
Twentieth Century-Fox director of industrial relations, at the film corporation's
Beverly Hills studio. Primarily, Rutledge and the latter appear to have discussed
the various terms and conditions under which local labor could be made available
for the "South Pacific" film unit. I
(The testimony of Rutledge, taken at face value, would seem sufficient to support
a conclusion that Meyer had requested his attendance. No evidence was, in fact,
proffered to support a contrary conclusion. Prior to the time this case was heard,
however, Meyer had died; the incumbent Fox director of industrial relations, Colyer,
previously Meyer's assistant, could not offer personal testimony with respect to the
July 1 conference. Since no determination with respect to the identity of the
initiator of the conference appears to be required, the testimony of Respondent
Rutledge in that connection, though uncontradicted, may be dismissed as immaterial.)
The only testimony available with respect to the July 1 discussions is that of the
Respondent Union's business manager; essentially he testified that wage rates, various
fringe allowances, and conditions of work for local craftsmen and teamsters on the
"South Pacific" project were discussed. He denied the achievement of agreements
with respect to union security, however.
On July 2, 1957, Meyer, possibly at the request of the Union's business manager,
dispatched two letters addressed to Rutledge at his Honolulu office. These letters-
separately directed to Respondent Rutledge as,the Respondent Union's president
and business manager, and as the Honolulu Building and Construction Trades,
Council's president-purported to confirm his prior discussions or conversation with
Director of Industrial Relations Meyer.
With respect to the employment of local craftsmen other than teamsters during
the "construction" phase of the Kauai film project, Meyer expressed himself as
follows:
. . . Specifically, you have assured us that with and through the component
parts of your Trades Council, you will make available for us qualified com-
petent Building Tradesmen to serve our needs. We, in turn, agree to utilize
the services of such qualified competent journeymen in such numbers as, in our
judgment, may be necessary to fulfill our needs. You have further assured us
that all craftsmen so furnished by you and utilized by us in connection with
our construction program at Kauai are, and during the term of their employ-
ment by us will be, members in good standing in the AFL-CIO. . . . The men
so furnished by your Council of Trades must be qualified competent journey-
men who will work under the jurisdiction of such supervisory personnel as we
may elect to send from here. We agree that your men will work under the
same Wage Scale, Terms and Conditions as are now in effect at Kauai.
The letter concluded with an observation that the statements noted, together with
others not now material, embodied "full agreement as to the understanding reached"
between Meyer and Rutledge as Building and Construction Trades Council presi-
dent. The latter was requested to sign and return one copy of the letter involved,
as an indication that the understanding reached had been fully set forth therein.
In his companion letter dispatched to Rutledge, president and business manager
of the Respondent Union, Meyer purported to summarize their consensus differently.
At the outset, it should be noted that the director of industrial relations distinguished
between the terms and conditions under which Island labor would be hired during
the "construction" phase of the film project now under consideration, and the terms
and conditions which would govern employment during the period of time actually
devoted to film production. His letter, insofar as material, read as follows:
.. . In connection with our Construction for our picture "SOUTH PACIFIC"
on the island of Kauai, you have assured us that without limitation or hindrance
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1573
of whatever nature, you will make available and furnish us Teamster Mem-
bers of the AFL-CIO in such numbers, as may, in our best judgment, be neces-
sary to properly service all our Construction requirements . The men so
furnished by you during their employment by us will be and remain members
in good standing of the AFL-CIO .. .
With reference to transportation requirements in connection with Production
which is currently contemplated to start on or about August 14, we have mu-
tually agreed as follows:
Under our Basic Agreement with the International Brotherhood of Teamsters,
we have the right-if we elect to do so-to send all Drivers from here . In-
stead of sending from here all drivers required in connection with production,
we are assigning only a so-called Location Captain (Pat Palamountain) and
perhaps two or three additional men, Members of Local #399. As regards
our additional transportation requirements for Production, you agreed to fur-
nish and we agree to use, 50% of such additional transportation help from the
Island of Kauai and the other 50% so required will come from Honolulu . .
All men furnished by you, whether residing on the Island of Kauai or furnished
by you from Honolulu, will provide their own housing, breakfast and dinner
except that we agree to pay for the transportation from Honolulu to Kauai for
such men as we may require and you furnish from Honolulu. It is understood,
of course, that all men so assigned by you whether from Kauai or Honolulu,
will be qualified Drivers and that they must at all times be sober.
With respect to wage rates, Meyer referred to his discussion with Rutledge as a
consensual agreement that transportation workers employed for construction work
would be paid $1.75 per hour, with time-and-a-half for all hours worked in excess
of 40 hours per week; drivers assigned to production, according to the director's
letter, would receive $2.545 per hour, with time-and-a-half payable after 40 hours,
plus an established rate for "golden" overtime hours. (The rate listed in Meyer's
letter as payable with respect to production work, we may note, equaled the rate
currently effective both for studio and distant location work by chauffeurs and
truckdrivers, under the agreements then in force between Local No. 399 and vari-
ous motion picture producers.) Additionally, the letter purported to summarize the
previous day's discussion between Meyer and Rutledge with respect to transportation
workers dispatched from Honolulu by the Respondent Union, and certain payments
which the film corporation would make to that organization in lieu of any obliga-
tion to provide housing and meal facilities for the Honolulu men.
Meyer's letter closed with the statement that it embodied a "full and complete
understanding of the discussions" between himself and Rutledge; the Respondent
Union's business manager, therefore, was requested to sign and return a copy of the
letter, if it accorded with his understanding as to the purport of the discussions in
question.
2. Developments in the islands
In the meantime, the Fox production unit proceeded to Kauai; Unit Manager
Stacey and Construction Foreman Ledgerwood, at least, appear to have established
an island base of operations. Harry Kuhia, Jr., and William E Fernandes went on
the Fox payroll as drivers. (Kuhia, the Respondent Union's vice president, appears
to have been offered Kauai employment previously by Stacey, for personal reasons
without relevance to the issues in this consolidated case; by virtue of a leave of
absence granted by his regular employer, Honolulu Gas Company, he was able to
accompany Stacey to the project location. Fernandes, a member of the Respondent
Union and Kauai resident, appears to have been hired locally; I so fiind.) Kuhia
was assigned to serve as Construction Foreman Ledgerwood's chauffeur; the specific
assignment of Fernandes has not been indicated.
On the date now under consideration, also, James Kaneakua, one of the com-
plainants in this consolidated case, was hired as a special equipment operator. The
circumstances of his employment must be considered somewhat obscure; he appears
to have been referred for employment by Aki, however. I so find. (On Fox payroll
records, July 2, 1957, appears as Kaneakua's date of hire; he, too, gave that date as
his first day of employment. His further testimony indicates, however, that Pala-
mountain and Kuhia gave him his first assignment; other testimony, which I credit,
establishes that Palamountain had not yet reached the "South Pacific" location.
Aki's dispatch records list Kaneakua as referred on July 5; the complainant testified,
however, that Aki had given him an oral referral, and that he had promised to sub-
mit a dispatch slip subsequently. After 'due consideration, I have concluded that
Kaneakua was actually employed on July 2, 1957, and that his designation of
Palamountain as the man who gave him his first assignment merely evidences a
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failure of recollection with respect to this detail of his employment history.) As of
his date of hire, I find, Kaneakua was on strike; together with the rest of the com-
plainants in this consolidated case, only Joseph Nakamura excepted, he was par-
ticipating in a strike for recognition previously called by the Operating Engineers
against E. F. Nilson, a local contractor. (Already, elsewhere in this report, it has
been noted that various Nilson employees had applied for Operating Engineers
membership during May 1957; thereafter Nilson had been requested to recognize
that organization as the representative of a majority of his employees. The request
had been rejected. On or about June 17, then, most of Nilson's employees had
ceased work in support of the Operating Engineers' recognition demand; some-
among others, Kaneakua and another complainant, specifically-had ceased work
for subcontractors using Nilson equipment to which they had been assigned.) Con-
currently, members of Operating Engineers in the employ of Kauai Machine Works
appear to have struck their employer, also, for reasons not made clear in the
present record. I so find.
On Wednesday, July 3, three drivers-Norman Akita, Walter Contrades, and
Adam Silva-were added to the Fox payroll. The available evidence will support
no inferences with respect to the circumstances under which Akita and Silva were
employed; it will, however, support a conclusion that Contrades, a participant in
the Kauai Machine Works strike, was referred by Aki and hired by Fox, on the
date noted, as a special equipment operator.
On July 3, 1957, Rutledge returned to the Hawaiian Islands from California by
plane. George W. Palamountain-cited previously in this report as the Fox designee
for the post of transportation captain on the "South Pacific" project-was a fellow
passenger. While en route to the islands, Palamountain was informed by Rutledge
that Kuhia would be the shop steward of the Respondent Union on the job, that he
would arrange to hire all of the drivers Palamountain would require, and that he
would be familiar with their union membership status. The available evidence
gives no indication of Palamountain 's reply.
On July 5, 1957, Rutledge reached the island of Kauai; pursuant to a request
transmitted by his office, Aki met him at the airport. While escorting Rutledge on
a quick tour, designed to acquaint him with the situation of the Nilson strikers and
the labor supply arrangements currently effective for the "South Pacific" project,
Aki was advised by the Respondent Union's president and business manager as to
the position of his organization regarding these island developments. With respect
to this extended conversation, the testimony proffered by Rutledge and Aki merits
characterization as somewhat divergent, to say the least. Analysis of the record,
however, has convinced me that their discussion may be summarized, fairly, as
follows: At the outset, Rutledge appears to have observed, forcefully, that the
successful effort of the Operating Engineers to organize E. F Nilson's employees
had breached the Honolulu Building and Construction Trades Council's directive
with respect to the organization of Kauai craftsmen by its Carpenter's Union
affiliate. The Respondent Union's business manager declared, also, that Nilson's
drivers and special equipment operators fell within the trade jurisdiction of his
organization. He advised Aki that, since the Operating Engineers had defied the
Honolulu Council's directive with respect to the organization of Kauai craftsmen,
teamsters included, he would assert the Respondent Union's right to organize and
represent all of the workers Operating Engineers then represented. including the
Nilson strikers. Confronted with this declaration, Aki conceded the Respondent
Union's right to exercise its jurisdiction as indicated. I so find.
Rutledge also advised Aki that the Teamsters organization had an agreement
with Fox, and that, pursuant to this agreement, it would supply all of the drivers
and special equipment operators required by the film corporation for the "South
Pacific" project; the Respondent Union's business manager had already received
Meyer's July 2 letter, which he exhibited to Aki in this connection. Nevertheless,
he requested Aki to continue referring transportation workers to the film project,
observing that others would be referred from Honolulu by the Respondent Unions.
Essentially, I find. Rutledge claimed "jurisdiction" over any and all transportation
workers referred for project employment, by virtue of his agreement with Meyer,
evidenced by the latter's July 2 letter, and Aki acknowledged that the Respondent
Union's jurisdiction, with respect to the referral of transportation workers for em-
ployment by the film corporation, was established.
(During his Kauai visit , either on the 5th or 6th of the month , Rutledge learned
that all of the craftsmen dispatched for Fox employment by the "Kauai Council of
Trades" were being paid "studio rates" noted elsewhere in this report. Aki's
testimony, which I credit, established that Rutledge immediately entered the tem-
porary Coco Palms Hotel office of the film project. Subsequent reactions of the busi-
ness manager will be detailed elsewhere in this report.)
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1575
On Friday, July 5, 1957, and each of the 2 succeeding days, the Respondent
Rutledge, accompanied by Kuhia and other representatives of the Respondent Union,
met and conferred with the Nilson strikers, assembled by Aki at his request. Em-
ployees of some other companies appear to have been present , particularly during
the July 7 meeting; the group on that occasion , I find , included Kauai Machine
Works employees , currently on strike against their employer under Operating En-
gineers sponsorship.
Detailed-but diffuse-testimony was proffered and received with respect to these
meetings. Upon the entire record-evaluated with due regard for the credibility of
various witnesses and the inherent probabilities-the general tenor of the discussion
at the several meetings may be summarized as follows: Upon his introduction by
Aki, at the outset, Rutledge appears to have advised the employees present that the
Operating Engineers local had invaded the trade jurisdiction of the Respondent
Union, by its attempt to organize Nilson's employees and to seek recognition as
their representative. I so find. The contractor's employees were informed that,
in the opinion of the Respondent Union 's business manager the strike then underway
reflected a tactical error on the part of their organization, fraught with possibilities
of failure . They were also told that applications for membership in the Respondent
Union on their part would enable Rutledge to attempt a settlement of the strike,
pursuant to which they might be able to resume work, pending their designation
of a statutory bargaining representative pursuant to Board process . In the meantime,
Rutledge declared, they would be eligible for dispatch to the "South Pacific" project
for employment as drivers and special equipment operators . In this connection, I
find, Rutledge read Meyer 's July 2 letter , or explained it to the assembled employees.
They were advised, essentially, that the Respondent Union had been recognized
by Fox as the film corporation 's exclusive agency for the procurement of drivers
and special equipment operators, needed to produce "South Pacific" as a motion
picture, and that all persons desiring such work would have to be dispatched by
the Respondent Union. In this connection, Rutledge informed the workers present
that, to qualify for a Fox referral, they would have to be Teamsters members, that
the Respondent Union 's initiation fee for members in the film corporation 's employ
would be $50, that the dues of such members would be $5 per month, and that they
would be required to pay a weekly assessment equal to 10 percent of their earnings,
also.
(As a witness, Rutledge denied any statement that the Nilson strikers and others
would be required to join the Respondent Union to work as drivers or special equip-
ment operators for the film corporation . Upon the entire record, his testimony in
this respect must be rejected as unworthy of credit . Among other things, note should
be taken of his admission that Aki was told of his desire to exercise the Respondent
Union's jurisdiction on Kauai to the fullest extent, and his further admission that
drivers and special equipment operators , such as those Fox would require, would
be considered within the Respondent Union's trade jurisdiction . In this connection,
also, note should be taken of the business manager's concession , specifically, with
respect to his declared intention to "take steps" calculated to get the Nilson strikers
into the Respondent Union . In his testimony , Rutledge admitted comments made
to Aki that Fox had recognized the Respondent Union as its labor supply for trans-
portation workers. He acknowledged making statements to Kauai residents indica-
tive of his opinion that the organizational activity of the Operating Engineers had
forced a decision on his part to assert the Respondent Union's trade jurisdiction on
that island . And the record establishes that he made statements to the same effect
at both a July 8 Honolulu Building and Construction Trades Council meeting and
a July 30 membership meeting of the Respondent Union . These concessions, con-
sidered together with other evidence available regarding his previous statements,
clearly render incredible Rutledge's explicit disavowal of any statement that local
transportation workers would have to join the Respondent Union as a condition of
employment on the Fox project.)
Finally, the men were told that all of their payments would be made to the
Respondent Kuhia, and that the money collected-presumably exclusive of necessary
per capita remittances-would be set aside in a special fund , to assist various Kauai
strikers , and to finance local organizational activity in the Respondent Union's behalf.
At the first or second employee meeting , applications for membership in the
Respondent Union appeared to have been distributed; I so find. These were
conventional in form; they embodied both an application for membership in the
Respondent Union and an authorization for that organization to represent signatories
in the negotiation of a collective bargain . Some of the cards, however , appear to
have been double-sized. These , I find , included a detachable wage assignment agree-
ment , intended to authorize designated employers to check off union dues , assess-
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments, and initiation fees. In this connection , specifically , the card authorized an
assignment-
. . . for union initiation fee not more than $25 .00 and not more than $5.00 a
month for dues and not more than $2.00 per month as assessments . .
Hardly any of the men present at the first or second meeting , however, appear to
have applied for union membership ; because of Rutledge 's indication that the Re-
spondent Union 's financial demands , addressed to membership applicants in the
film corporation's employ, would exceed those for which the designated organization
would routinely request checkoff authorizations, several expressions of discontent
were voiced . There was an oral indication , I find , that the men present wished to
have a little more time in which to think over the matter.
(Apparently there were two exceptions. The record establishes that Yukio
Arashiro and Franklin Kelekoma, both complainants in this consolidated case, did
execute membership applications on July 6, 1957, for the Respondent Union. Ara-
shiro, previously a volunteer assistant of Aki in the Kauai Council of Trades organi-
zation , had been requested shortly before the July 6 meeting to apply for member-
ship in the Respondent Union and to work for it as a paid organizer ; the request had
been made, I find, by Rutledge and David Naumu, a Teamsters representative. He
had requested some time to consider the Union's employment offer, but apparently
chose to submit his membership application at the July 6 meeting. Shortly before
the July 7 meeting, I find, he did, finally, accept the employment offer, pursuant to
which he expected to receive a $150 salary and $50 for traveling expenses during
the July 1 to 15, 1957, period. When hired, Arashiro was told by Rutledge, I find,
to work "hand and hand" with Kuhia, the Respondent Union's vice president.)
At the July 7 meeting, most of the men present voted to apply for union member-
ship ; 28 men executed membership applications distributed by Arashiro, Naumu,
Kuhia, and possibly others. Rutledge then suggested an election of officers for
their newly formed Kauai unit of the Respondent Union. Arashiro was elected its
president and business manager; Libert Nakaahiki , a Nilson striker and a com-
plainant in this case , was elected secretary -treasurer despite his absence; John Maikai
was elected recording secretary.
At this point, it should be noted that each of the complainants in this consolidated
case-with the exception of Joseph Nakamura and Libert Nakaahiki, previously
noted-had now signed a membership application for the Respondent Union.
By July 7, 1957, three of the complainants-Jacob Merseberg, Joaquin Amorin,
and George M. Baptista-had already been referred to Fox employment as drivers,
Merseberg on the 5th, Amorin and Baptista on the 6th of the month. Merseberg
and Amorin had been dispatched by Aki directly; Baptista testified credibly, however,
that Arashiro had first advised him to see Aki, and that the latter had then referred
him to Kuhia for assignment. Additionally, Hosea Lovell, a Kauai Machine Works
striker, had been referred by Aki on the 5th for work as a driver, while Antone
Perry had been similarly referred on the 6th as a special equipment operator. Rich-
ard Duarte, a Honolulu resident and union member, also appears to have been hired
-by Fox on the 6th as a driver. I so find. Aki, however, did not dispatch him.
Between Tuesday, July 9, and Thursday, July 11, Aki dispatched 10 additional men
for employment by Fox as drivers or special equipment operators. Among those
referred were eight of the complainants in this consolidated case-Brum, Kelekoma,
Murata, Nakaahiki, Joseph Nakamura, Tarao Nakamura, Sakamoto, and Chai Tin.
Brum and Kelekoma were called by Aki, directly, and reported to Kuhia, pursuant
to instructions. Murata and Tarao Nakamura, however, appear to have been called,
initially, by Arashiro; I so find. (Nakaahiki-previously elected secretary-treasurer
of the Kauai Teamsters unit-questioned Arashiro on July 8, I find, with respect to
the possibility of his employment on the Fox production. He was told that all
men dispatched to such employment as drivers and special equipment operators
would have to apply for union membership. Upon his subsequent execution of the
Respondent Union's membership application, Nakaahiki was informed by Arashiro
that he would have to pay the initiation fee, dues, and assessments previously speci-
fied by the Respondent Union's business manager. On July 11, 1957, when sum-
moned by Arashiro for employment, he was dispatched by Aki, reported to Kuhia,
and received a driver's assignment.)
Upon his hire, Joseph Nakamura appears to have been assigned to work by
Richard Duarte as a crane operator; I so find. Sakamoto, though listed by Aki as
a referral, testified credibly that William Fernandes had actually requested him to
report for work; Fernandes then presented him to Kuhia, who gave him a W-2 tax
form to execute. Olaf Thronas, a Fox employee with the presumptive status of a
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1577
crew leader, almost immediately claimed his services as a boom-truck driver; after
a conference between Thronas and Fernandes, I find, Sakamoto was so assigned.
With respect to each of the complainants hired, the available evidence will
warrant a finding that Kuhia prepared timecards to record their services, solicited
information as to their social security number, proffered tax forms for signature
by them, and assigned them to equipment. He appears to have taken their ability
to drive for granted, because of their referral by Arashiro or Aki; I so find.
After July 11, 1957, Aki ceased dispatching qualified transportation workers for
employment by Fox as drivers or special equipment operators. The available
evidence establishes his continued activity as a referral source for laborers and
other craftsmen required on the "South Pacific" project; for the duration of the
project, however, transportation workers appear to have been recruited by Kuhia
directly, or by others at his request or direction; I so find. (In this connection,
reference should be made to the recruitment of Samuel Maikai and William Mont-
gomery as drivers, on the 13th and 15th of the month, respectively.) The manner
in which the Respondent Union's vice president discharged this responsibility, to-
gether with his other duties, will be noted elsewhere in this report.
In the meantime, Rutledge, upon his return to the Union's Honolulu office, dis-
patched two letters to Meyer, replying to the July 2 letters previously noted. He
did not, I find, return any signed copies of the letters dispatched to him, pursuant
to Meyer's request. As president of the Honolulu Building and Construction Trades
Council, however, he characterized the letter sent to him in that capacity as satis-
factory, except for its reference to the film corporation's declared readiness to
employ members of various council affiliates for the "South Pacific" project. under
local Kauai wage scales and employment conditions currently effective In that
connection, Rutledge cited the "impression" he had derived from his July 1 dis-
cussion with the Fox director of industrial relations to the effect that an agreement
had been reached at the local level which provided for the payment of locally pre-
vailing wage rates; Meyer was advised, however, of his discovery that the prevailing
wage rates on the film project were really the "studio" rates established by Los
Angeles agreements. The Fox official was informed, therefore, that Rutledge con-
sidered his July 2 letter to be in accord with the local arrangement noted. Addi-
tionally, Meyer was advised that:
Since this Studio Wage Scale was agreed upon, I want to make it clear we
expect it to be paid on all construction work which will mean that our truck
drivers on construction will receive the Studio Wage rate which is $2.545 per
hour for drivers.
In a second letter, as the Respondent Union's president and business manager,
Rutledge advised Meyer that his reference to a wage rate of $1.75 per hour for con-
struction teamsters was incorrect. The Fox official was advised that the rate
should be $2.545 per hour, a rate which Rutledge characterized as-
. the rate agreed to prior to our discussions and [the rate] in line with
other construction rates being paid for the other crafts employed by you on the
job. [Emphasis supplied.]
Rutledge characterized the rest of Meyer's letter, with specific reference to wage rates
and employment arrangements applicable to the production phase of the "South
Pacific" project, as acceptable.
Concurrently, I find, Rutledge dispatched a letter of similar tenor to Unit Man-
ager Stacey at the Coco Palms Hotel on Kauai, to correct any "slight misunderstand-
ing" he might have as to the wage rates payable to union truckdrivers employed
during the construction phase of the film project. Stacey was advised that the
Respondent Union expected the $2 545 wage rate set forth in the Los Angeles
Teamsters agreements, plus all other conditions, to be in effect for all drivers. The
unit manager was also told-
We expect this particularly in view of the fact that you are paying Studio Wage
Rates to all construction workers employed on the job.
Meyer's previous reference to a basic wage rate of $1.75 per hour for drivers was
characterized as a mistake under the circumstances.
The lack of consensual understanding suggested by this correspondence, with
respect to the wage rates established for drivers and special equipment operators
during the construction phase of the "South Pacific" project, does not appear to have
been remedied immediately. (While recapitulation of the various discussions which
preceded determination of the applicable wage scale may not be relevant to a de-
termination of the issues now presented for decision, developments incidental to the
achievement of final agreement appear to have influenced the relevant conduct of
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
various parties materially. Some discussion of the negotiations, ,therefore, might
well be considered necessary or appropriate.) The available evidence establishes
that one Fox representative, at least, attempted the persuasion of Aki to acknowledge
applicability of the $1.75 hourly rate for construction drivers. Upon the latter's
refusal to concede the propriety of the designated rate, Fox sought to win his ap-
proval instead for the effectuation of a $2.25 hourly rate. When Aki protested, how-
ever, that such a rate would be lower than the wage rates currently paid to island
drivers, pursuant to the Davis-Bacon Act's mandate, on Government contract
projects, the suggestion appears to have been dropped. Ultimately, Stacey was
advised by cable on July 18, 1957, that the film corporation was "evidently com-
mitted" to pay prevailing "studio" rates to construction craftsmen and drivers; he
was authorized, therefore, to pay the film project employees at the rates designated.
D. The dismissal of the complainants
1. The Nilson election
At this point, note should be taken of a representation petition previously filed by
Edwin F. Nilson on July 2, 1957, at this Agency's Honolulu office. Therein, Nilson
had reported the receipt of a recognition claim from the Kauai Council of Trades,
assertative of its claimed legal status as the statutory representative of his employees.
The Board had been requested to resolve the question of representation posed, within
a unit thus defined:
All full- and part-time employees of the company (truckdrivers, heavy equip-
ment operators, mechanics, tree trimmers, laborers, et al.) exclusive of office,
clerical employees, guards, professional employees and supervisors as defined
in the Act, as amended.
Investigation of this petition appears to have resulted in the identification of Operat-
ing Engineers as the organization which actually claimed recognition rights as the
exclusive representative of Nilson's employees. I so find. By July 8, however, the
Respondent Union's interest in the prosecution of a similar representation claim had
been made manifest, through its submission of 28 membership applications executed
by various Nilson strikers on July 6 and 7, under circumstances previously noted.
Thus, on Friday, July 12, 1957, when a consent election agreement was negotiated
and\ executed by Nilson, designated representatives of both the Respondent Union
and Operating Engineers were signatory parties. The agreements provided for an
election to be held on Thursday, July 18, 1957,,to resolve all questions of employee
representation, within a collective-bargaining unit substantially identical with the
one set forth in Nilson's original petition.
On the 12th also, Arashiro, then in the Respondent Union's employ, was sum-
moned to Honolulu, where he met Rutledge and Felix, the business manager's ad-
ministrative assistant. He was advised, I find, of the Respondent Union's intention
to designate him as a union observer at the scheduled consent election. His duties
and responsibilities in that capacity were outlined; he was told which employees to
challenge; and questions were asked as to his opinion with respect to the prospects of
a Teamsters victory. On Monday, July 15, 1957, he returned to Kauai.
Thereafter, on July 16, Rutledge and Kuhia, accompanied by Arashiro, met with
a majority of the Nilson strikers now complainants in this case. The Respondent
Union's business manager explained the mechanics of a Board-conducted election,
called for a vote favorable to the Respondent Union, and promised that, if the men
would vote for the Respondent Union, he would try to settle the Nilson strike as
soon as possible. These remarks appear to have been received silently; considered
as a whole, the evidence establishes that no clear reaction to the appeal of the
Respondent Union's business manager could be observed. (One of the complainants,
Nakaahiki, recalled that questions had been raised by some of the employees present
with respect to the Respondent Union's $50 initiation fee for workers on the Fox
project, the organization's 10 percent assessment, and Kuhia's role as the organiza-
tion's collector. Although Nakaahiki generally impressed me as a credible witness,
I am persuaded that his recollection in this particular connection must be considered
questionable.) Kuhia, after the meeting, expressed himself as persuaded that the
Respondent Union would not win the election, since the failure of those present to
ask questions would warrant an inference that the men were either stupid, inattentive,
or predetermined, in regard to the disposition of their vote.
Early on July 18, 1957, before the scheduled election period, Aki appears to have
met a group of Nilson strikers at or near .the contractor's base yard. There, he
appears to have advised them that the agreement between the Respondent Union and
Fox called for a basic wage rate of $1.75 per hour for drivers, during the construe-
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1579
tion phase of the film project. Additionally, he apparently told the men that laborers
on the project were to be paid at the rate of $2.255 per hour. I so find. Essentially,
the Nilson strikers were advised to consider why they should vote for the Respondent
Union, which had agreed to the acceptability of a $1.75 rate for them on the film
project. (Primarily, my factual conclusions in this connection rest upon the testi-
mony of Arashiro, specifically with respect to a summary of Aki's statement which
he gave to Rutledge subsequently. Proffered in this form, the complainant's testi-
mony with respect to the comments he attributed to the Operating Engineers' repre-
sentative was clearly hearsay. The available evidence, however, reveals no effort
by anyone to question or contradict his recital. Nothing in the record suggests,
either, that Arashiro had reason to misrepresent the situation during his telephone
conversation with the Respondent Union's business manager . Under the circum-
stances indicated, I have found his testimonial statements-with respect to the re-
port he made-probative with respect to the comments Aki addressed to the Nilson
strikers. )
On Thursday, July 18, 1957, Agency personnel conducted a consent election, be-
tween the hours of 7 and 7:30 in the morning, among Nilson's employees. When
it was indicated that Arashiro's right to vote would be challenged-for reasons with-
out relevance in this case-he was denied designation as the Respondent Union's
observer and was forced to name another employee for the assignment. Nakaahiki
served as the Operating Engineers observer. Of ,the 59 employees initially listed as
eligible to vote, 40 cast valid ballots, while the ballots of 13 were challenged; 6
employees failed to vote. One employee's name was added to the list of eligibles;
he voted. Of the 41 valid votes counted, 33 were cast for Operating Engineers rep-
resentation and 8 votes were cast against both labor organizations; the Respondent
Union received no votes. All of the complainants herein-with the exception of
Joseph Nakamura, who was not a Nilson employee--cast ballots in the election.
Those cast by Amorin, Arashiro, Kaneakua, Merseberg, and Murata were challenged;
none of them had been listed as eligible to vote. Each of the other seven com-
plainants, however, cast valid ballots. (When the consent election was held, 11
of the complainants herein, with Joseph Nakamura and Arashiro excepted, were
the only Nilson strikers in the film corporation's employ. Kuhia had secured per-
mission from some Fox official, unspecified, for these individuals to report late for
work, after the election.)
During the afternoon of July 18 Arashiro met Respondent Kuhia and reported
the election results; these had already been communicated to the Respondent
Union's vice president, presumably by Nakaahiki, the Operating Engineers observer.
Kuhia, I find, then undertook to explain the election results to Rutledge by tele-
phone, with Arashiro present; during their conversation, he reported the failure of
the Respondent Union to win any votes, but commented that the men had voted
for union representation, at least. Rutledge then questioned Arashiro with respect
to the Respondent Union's failure to win a single vote. Specifically, I find, he
questioned this complainant with respect to his own vote; he was advised that the
vote had been challenged. When pressed to explain the evident failure of any other
employees to vote for the Respondent Union, Arashiro referred to Aki's preelection
statement to the Nilson strikers, noted elsewhere in this report. To conclude the
conversation, Arashiro questioned Rutledge with respect to his standing as a
Teamsters organizer. Obviously nettled because of Arashiro's failure to perform
effectively within the Nilson group as an organizer, Rutledge advised the latter that
be could work as a driver or equipment operator on the film project, if he wished,
reporting on the following day.
Thereafter, I find, Kuhia and Arashiro got into a discussion with respect to the
merits of Aki's reported claim that the Respondent Union's agreement with Fox
had established $1.75 as the firm's basic hourly wage rate for truckdrivers, during
the construction phase of the "South Pacific" project Kuhia claimed, to the con-
trary, that he was being paid $2.545 per hour; Arashiro, I find, argued that Kuhia's
assertion could not be proven, since no Fox payroll checks had yet been distributed.
The Respondent Union's vice president thereupon proposed to clarify the situation by
consultation with Paymaster Wittenberg of the film unit. The latter, however,
advised him that paycheck distribution for the project would be delayed (Else-
where in this report, it has been noted that Fox did not actually authorize the pay-
ment of "studio" rates for construction work on the project until sometime on
July 18, the date now under consideration.) This information, I find, prompted
Kuhia to make a further report to Rutledge by telephone When their conversation
was concluded, the Respondent Union's vice president advised Arashiro, essentially:
. .. that Rutledge had told him to put a picket line or to pull a strike on the
movie set. Then he told me that he was going against Mr. Rutledge's orders
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he was not going to pull the strike, but he was going to have the satis-
faction of firing Mr. Nakaahiki or some of the other boys that were employees
of Nilson's working on the movie set and did not vote for Teamsters, that he
would have personal satisfaction of firing Mr. Nakaahiki .. .
Arashiro's testimony with respect to Kuhia's comment, noted, has not been denied.
When questioned about it, Kuhia first pleaded a difficulty of recollection; there-
after, confronted with a purported summary of Arashiro's testimony, he pleaded
inability to understand the meaning of the remarks attributed to him.
2. The dismissals
Later, during the evening of the election day, Kuhia telephoned Rutledge to in-
quire whether certain Honolulu workers would report to Kauai for driver assign-
ments. The business manager, I find , replied ,that "five or six or seven" men would
arrive shortly. Subsequently, Kuhia transmitted this information to Palamountain.
The latter, I find, raised no objection; he merely expressed a hope that the men
would understand their lack of entitlement to subsistence pay during the construction
phase of the film project. (For the Respondent Union, Rutledge, and Kuhia, con-
siderable testimony was adduced with respect to the circumstances precedent to the
dispatch of these Honolulu replacements; this testimony will be evaluated elsewhere
in this report.) Early the next day, July 19, 1957, the men arrived; the group in-
cluded John Contrades, Antonia Contrades, Joseph Lii, Sam Makaawaawa, and David
Naumu, previously identified as a business representative of the Respondent Union.
When the film project employees assembled for work early in the morning, Aki
was at the Coco Palms Hotel yard. When he shook hands with Kuhia, he appears
to have been advised by the latter that "Rutledge don't like this." I so find. There-
after, Kuhia approached Kaneakua, seated at the wheel of the bus which he had
previously been assigned to drive. The Respondent Union's vice president advised
the latter that he was being replaced; in Kaneakua's presence, I find, he requested
Arashiro to drive the bus. Kaneakua's testimony with respect to the incident, which
I credit, reads as follows:
And when all the boys on the bus, I went on the bus, started the bus up.
As I was about to close the door, Mr. Kuhia came up and said, "Mr. Kaneakua,
you, too. I hate to do this but Arashiro is going to take your place." So Mr.
Arashiro came up and Arashiro say, he told me, "I hate to do this." I told him,
"You are taking orders." So I got off the bus and after the bus left . then
all of the busses left and I saw Mr. Kuhia in his car . . I went up to him .
and I told him, "How come?" He said, "Orders from Honolulu." Then he
mentioned something about paying the dues. And I told him. "Don't give
us-you don't give me no chance because I just had my check this morning."
Then I went off.
The assignment of Arashiro as Kaneakua's replacement initiated his "South Pacific"
employment. Although assigned to work as a driver on the occasion of his employ-
ment, he appears to have been classified ultimately as a special equipment operator,
compensable at the applicable studio rate for such operators, $2.895 per hour.
Earlier on the morning of the 19th, within Kaneakua's hearing, Kuhia had
previously notified Nakaahiki of his replacement. The testimony of the latter with
respect to his termination and its aftermath, which I credit, reads as follows:
Well, as soon as I got to the Coco Palms job, I was walking towards the men
that were assembled there, Mr. Kuhia noticed that I was walking across, so he
approached me and as he approached me, he called me by my first name He
said, "Libert." And I turned to him and I said, "Yes." And he said, "You
have been replaced Replaced as of this morning " So T looked at Mr. Kuhia.
And I gathered at the time that he meant I was fired, although he did not say
you are fired. He said, "You are replaced." And so I asked him. Mr. Kuhia,
"What about the rest of the boys?" His answer to me was, "That is up to
them " And that was all that was said.
When Nakaahiki thereafter had reported Kuhia's action to Aki, the latter had sum-
moned Construction Foreman Ledgerwood; the foreman had asked what the matter
was. Upon hearing Nakaahiki's report that he had been replaced but believed that
he had been fired, Ledgerwood had replied, I find, that he was sorry but nowerless
to correct the situation, since the Respondent Union had a contract with the film
cornoration
Nakaahiki testified that he had then been questioned by Palamountain as to what
had been wrong; upon his repetition of Kuhia's remark with respect to his replace-
ment, Palamountain had allegedly informed him, also, that the Respondent Union
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1581
had a binding agreement with Fox, and that nothing could be done. Asa witness,
however, Palamountain insisted that no such conversation had taken place. After
consideration, particularly in the light of the issues presented for decision herein,
I have found it unnecessary to resolve the indicated testimonial conflict. Whatever
Palamountain's role in the situation may have been , the course of conduct which
Nakaahiki attributed to Kuhia has not been effectively denied. The complainant was
told by the Respondent Union's vice president, I find, that his services would no
longer be required, and the record establishes he did not, in fact, serve as a driver
on the "South Pacific" project thereafter.
Additionally, Kuhia appears to have approached Merseberg, then employed as a
chauffeur; the latter was advised, also, that he had been replaced. Subsequently, he
observed Adam Silva-cited previously in this report as a driver employed on
July 3 by the film corporation-designated to serve as his replacement.
Later, on the morning of the 19th, I find, Kuhia accosted Arashiro on location-at
the Berkemeyer estate, scheduled to be a production locale-and during a con-
versation advised him, essentially, that the Respondent Union did not feel any obli-
gation to give the Nilson strikers jobs, since none of them had voted for representa-
tion by the organization at the recent consent election; Arashiro was told by Kuhia
that "starting now" additional drivers needed for the project would be procured from
Honolulu. (Kuhia, questioned with respect to this conversation, entered no specific
denial; his testimony reveals an insistence that the referral of Honolulu men for
employment as drivers and special equipment operators had not been a subject of
discussion with Arashiro more than once, but he could not recall the date of such
a conversation. Upon the entire record, I have credited Arashiro's recollection in
this connection.) While on location at the Berkemeyer estate, Kuhia, I find, also
spoke to Hosea Lovell, identified elsewhere in this report as a Kauai Machine Works
striker dispatched to Fox by Aki on July 5 for driver's work. Lovell's credible
testimony establishes that Kuhia accosted him, and initiated a conversation which
the driver summarized as follows:
He told me all along he thought that I belonged to Nilson, and . . . I told him
him that I didn't belong to that company. So he told me if I belonged to
Nilson's company that he would have to lay me off.
Lovell also claimed to have heard Kuhia previously tell someone else that he was
laying off all of the Nilson strikers; he could not, however, recall the identity of the
person addressed. While this testimony suggests that Lovell may have heard Kuhia's
conversation with Arashiro at the Berkemeyer estate on July 19, noted, the available
evidence cannot be considered substantial enough to support such a conclusion.
Nevertheless, on or about the 19th and 20th of the month, Kuhia did inform most
of the complainants still employed on the "South Pacific" project that their employ-
ment was being terminated. The Respondent Union's vice president appears to
have told most of them simply that they had been replaced; in some cases, he may
have advised them that they were "pan," the Hawaiian expression indicative of
finality or completion. (The complainants-previously Nilson strikers-advised of
their termination by Kuhia, in these terms, on the 19th and 20th included Amorin,
Baptista, Kelekoma, Tarao Nakamura, and Chai Tin.) The credible testimony of
Makoto Murato, however, reveals his termination to have been effectuated under
slightly different circumstances. During the afternoon of July 19, while engaged
in the performance of his regular duties as a boom-truck driver, Murata was
approached by Arashiro, who told him that his replacement was in. According to
Murata, this was "about" all that was said. He testified that he did not report for
work on July 20 since he "took it for granted" that he was through.
Daniel Brum, the last complainant terminated on July 19, testified that he was
"put off" after he had worked the full day. With respect to the circumstances of his
termination, his testimony shows:
They told me they moved the tractor [which I drove] away from Lumahae and
said that I was through. Through with the tractor and I was through too .
[Thronas] told me . . . I think he was a mechanic, I think; I am not sure what
he was. But I used to deliver some fuel for his equipment he had working
too down on the job. So he told me they would have to move the machine
and be through from there because it was about 2:30 or 3 o'clock . I
moved the machine down to Hanalei and left it there and then I went home
the following day, on Saturday, I went down to Coco Palms at the regular
time, figuring I would get a job down there but nobody approached me and I
didn't approach nobody, and [they] just left me there . . . I saw Mr. Kuhia
but I didn't get to talk to him.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nothing in the record will support a conclusion that Kuhia ever informed Brum of
his termination or replacement.
The testimony of Sakamoto establishes his employment as a boom-truck operator
on the 19th , after the election . With respect to subsequent events, he testified as
follows:
That morning I found out that three boys were laid off, that took part in the
Nilson election . . . I was there that morning when it happened .. .
Sakamoto went on to testify , however, that July 19 was his last day of driver em-
ployment ; when questioned as to the circumstances under which his employment
ended , he proffered the following recital:
Well, I found out that afternoon that we were all laid off . . . We were at a
short meeting at Coco Palms that afternoon . . . with Raymond Aki .. .
[and] all the Nilson boys . . . I showed up the day after . . . In the morn-
ing, about 6:30 to 7 . . . [with] Murata and [Tarao ] Nakamura . Baptista,
Chai Tin. I don't remember the rest . . . We were waiting over there to see
whether we could have our jobs back , but nobody talked to us and I guessed we
were finished.
The complainant saw Kuhia , but sought no conversation with him ; initially, he
could not recall any comment by Kuhia to his group. With his recollection re-
freshed , Sakamoto did recall that Kuhia , while going by on his way to some project
location , waved to the men still standing in the Coco Palms lot; he could not, how-
ever, recall Kuhia's gesture , either as one of greeting or dismissal . On the Monday
following, when the complainant reported for other work as a film project laborer,
he observed Arashiro driving the boom truck which had formerly been assigned to
him. The available evidence , however, will not support a determination that
Sakamoto was ever informed explicitly with respect to the termination of his em-
ployment as a driver.
The film corporation 's payroll records establish July 20 , 1957 , as Joseph Naka-
mura's last day of employment as a special equipment operator . Nakamura had
not been a Nilson striker prior to his employment as a "South Pacific " crane operator;
his testimony establishes his previous status as a scrap iron dealer , self-employed.
Nevertheless , he maintained membership in the local Operating Engineers organiza-
tion . On Saturday , July 20 , 1957 , after the completion of his work , Nakamura was
approached by Kuhia; his credible testimony with respect to the conversation which
ensued reads as follows:
When I reached the yard at Coco Palms, Mr. Kuhia asked me for initiation fees
for the Teamsters, $50. And I told him "I paid my union dues, initiation and
dues, to the union I joined in, the Operating Engineers ." And he told me the
next day not to show up for work , he gets replacement taking my place on Sat-
urday. I tell him "That's o.k." And I came back and I called Raymond Aki
up. I told him , "Well I got fired from my job now ." He said he will fix me
up the next day; he told me to show up at Coco Palms. He put me in for laborer
job.
The substance of this conversation with respect to Kuhia's demand , repeated by the
complainant , has not been denied ; Kuhia's recollection was that it had occurred
some days prior to Nakamura 's last day of employment . The testimony of the Re-
spondent Union 's vice president includes an admission that he had considered Naka-
mura a Nilson striker, because of the circumstances of his hire while denying that
he had ever told the complainant designated he would be replaced , Kuhia did concede
that once , when Nakamura had complained about the condition of his crane, he
had advised the operator that he might as well go to work for Nilson. Because
of the vagueness of Kuhia's recollection in this connection , I have credited Naka-
mura's testimony with respect to the circumstances of his termination.
3. The replacement of the complainants
Elsewhere in this report , Kuhia's evening telephone call to Rutledge on July 19
has been noted ; the Respondent Union 's business manager was questioned with
respect to the dispatch of certain workers from Honolulu as replacement drivers.
In this connection , also, the arrival of five men from Honolulu on the 19th has
been reported. When the men arrived , four of them appear to have called upon
the Respondent Union 's vice president ; one, David Naumu, reported to Location
Captain Palamountain , apparently because of their previous acquaintance . (Else-
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1583
where in this report, Naumu's status as a union business agent has been noted; Pala-
mountain, I find, was aware of his official position.) When Naumu asked if he
could go to work that day, Palamountain replied that he did not need a driver
immediately. Sometime during the day, however, Kuhia advised the location captain,
I find, that he was going to put Naumu and the other Honolulu arrivals to work the
next day. With his memory refreshed by reference to a prior affidavit, Palamountain
testified credibly, that:
On or about July 19 or July 20 Kuhia informed me that he was replacing a
considerable number of drivers with new drivers. I asked him what was the
reason for his, and he told me that he was replacing the drivers because they
were not in good standing with Local 996 .. .
This direct testimony of the location captain was repeated in cross-examination, essen-
tially countering a suggestion by counsel for Respondent Kuhia that a different
explanation for the replacement of the complainants may have been offered. With
due regard to the inherent probabilities in this connection, suggested by the balance
of the record, I have credited Palamountain's testimony, quoted.
During the period now under consideration also, Duarte, Naumu, and Fernandes,
whose activities in behalf of the Respondent Union are noted elsewhere in this report,
were engaged in a hurried effort to locate replacements for the complainants herein.
The record establishes their involvement in a number of telephone calls to various
Kauai residents, presumably to solicit applications for Fox employment; I so find.
This activity on the part of Kuhia, Duarte, Naumu, and Fernandes resulted in the
employment of 13 transportation workers for the film project during a 4-day period.
Arashiro's assignment to replace Kaneakua on the 19th has already been noted.
On the same date Antone Texeira, Jr., a Kauai resident, was employed as a special
equipment operator. Naumu, John Contrades, Antonio Contrades, Josiah Lii, and
Samuel Makaawaawa were enrolled as Fox employees on the July 20 payroll. On
the same date, two other employees, Samuel Huddy and Edward Kaiwa, were hired.
Huddy, a member of the Respondent Union, had been called by Kuhia personally.
Kaiwa appears to have been solicited by Naumu; after being interviewed by Pala-
mountain, he was assigned to a truck by the Respondent Union's vice president. On
Monday, July 22, 1957, four additional employees were hired. Charles Kahele and
Lawrence Shigeura, a former Teamsters business agent, reported from Honolulu;
Joseph Akita, Jr., and Edward Kapahu, Jr., were Kauai residents.
By way of summary: Twelve of the twenty-four transportation workers in the film
corporation's employ on July 18, 1957, lost their "South Pacific" employment on
the 19th and 20th of the month. Of this number, eight had been designated on the
payroll as drivers; four had been designated as special equipment operators. Within
3 working days they were replaced by 13 men, 7 ultimately classified as drivers and
6 special equipment operators.
4. Subsequent developments
On July 23, 1957, after some consultation with Aki in regard to their situation,
nine of the complainants executed and dispatched duplicate letters to David Naumu,
in care of the Respondent Union; therein, each signatory complainant offered to
pay "regular teamsters dues" and an initiation fee. Respondent Rutledge-by letters
dated August 2, 1957, dispatched in the Respondent Union's name to some of the
complainants herein-acknowledged his receipt of these signed statements. The
Respondent Union's business manager professed confusion, however, with respect
to the proposal of the complainants to pay Teamster dues, since they had "voted" by
secret ballot in favor of Operating Engineers representation for the purposes of col-
lective bargaining in the Nilson election. Rutledge also speculated that the signers
of the statements might have come to evaluate the promises and propaganda of the
Operating Engineers representatives as worthless. The other recipients were advised,
however, that:
if you really want to join and be a part of our Union, you may sign the
enclosed application form and send with such form one (1) month's dues of
$5.00 an application fee of $25.00. Upon receipt of the form and $30.00, we
shall immediately process your application.
On August 15, 1957, Rutledge addressed another letter to the complainant recipients
of his previous correspondence. He advised them that Kuhia was the Respondent
Union's representative authorized to collect the union dues and initiation fees which
they had offered to pay.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime during this period-after their receipt of the August 2 or August 15
letter-Baptista, Merseberg, Murata, Sakamoto, and possibly others, saw Kuhia
and exhibited Rutledge's communication. Kuhia professed ignorance with respect
to the suggestions made by the Respondent Union's business manager, and advised
the complainants to return later, since he had to telephone Rutledge for information.
Sakamoto, whose testimony I have credited with respect to this incident, returned
late in the afternoon but did not see Kuhia; he could offer no testimony with respect
to the upshot of the matter. Merseberg, however, appears to have visited Kuhia on
August 20, 1957; I so find. The Respondent Union's vice president advised him that
he would have to "pay" to secure film project reemployment. The complainant gave
Kuhia $35 cash-$25 to be applied as an initiation fee and $10 for August-September
dues. After providing a receipt, Kuhia stated that employment opportunities on the
project were not currently available, and that Merseberg could not be promised em-
ployment. He was, however, reemployed on August 24, 1957, as a transportation
worker; this employment, as noted, followed his initial $35 payment to the Respond-
ent Union's vice president. (It should be noted that, contrary to the provisions of the
membership application card forwarded by Rutledge with his August 2 letter,
Merseberg ultimately paid a $50 initiation fee to the Respondent Union.) The com-
plainant designated, however, did not receive any regular assignment after his
reemployment; he was informed by Kuhia that he would be called if employment
opportunities existed. The record establishes that he did work until October 5, 1957,
intermittently. (Tarao Nakamura and Chai Tin appear to have been the only other
complainants reemployed directly by the film corporation. Nakamura's testimony
establishes that Fernandes called him for 1 day's work on October 2, 1957, as a
truckdriver. Chai Tin, whose affidavit was received in evidence by stipulation because
of his presumptive unavailability as a witness, asserted therein that, subsequent to his
termination, Shannon referred him for employment as a laborer, and that he was so
employed for 11/2 months. Social Security Administration records of Chai Tin's
earnings establish his employment during 1957's third quarter by Fox, Pat Shannon
Ltd., and a contractor on the "South Pacific" project. During the last quarter of the
year, I find he was again employed by Shannon and Fox; the payroll records of the
film corporation show October 9, 1957, as his last day of employment.) While
several of the complainants, not now enumerated, also worked on the film project,
after their termination as transportation workers, they appear to have been em-
ployed by local contractors engaged to assist the film unit. I so find.
5. The termination of Arashiro
Elsewhere in this report, reference has been made to Arashiro's employment as a
driver and special equipment operator on the "South Pacific" project; the record
establishes July 19, 1957, as his first day of employment. Thereafter, he appears to
have been employed regularly for a considerable period. Most of his work appears
to have involved service as a special equipment operator, at the $2.895 hourly rate.
I so find.
After the termination of his employment as a Teamsters organizer, Arashiro appears
to have reestablished his antecedent working relationship with Aki and the Kauai
Council of Trades, previously noted. While employed on the film project, I find,
he occasionally volunteered to transmit KTC dues payments and assessments proffered
to him for the sake of convenience, by craftsmen not affiliated with the Respondent
Union, for delivery to Treasurer Yamane of the Carpenters organization . The com-
plainant obtained receipts for any amounts thus transmitted, and passed them on to
the employees whose payments he had handled.
With respect to his intermittent September employment and termination, Arashiro's
detailed testimony reads as follows:
Yes, I worked in the month of September, up to the 16th of September . . On
the . second of September, which was Labor Day, during that week Mr.
Kuhia let me work that day, one or two days, and after two or three days I
didn't work . . . Well, I called-I tried to call Mr. Kuhia at his home, where
he was staying, and at times he would tell me to report in the morning, and then
If I did, he would tellme that somebody had already come before me and so I was
late, and then I would have to go back home, and he would tell me to report the
next day, or I would try to contact him at home, or on the phone, and a lot of
times he wasn't in and I never could contact him properly. But if I did at
Coco Palms yard and I approached him, well, he would tell me, "I am sorry;
you didn't call me up, so I [have] given the job to somebody else already." And
I would have to go home. I didn't have any job for the day . . . Well, Sep-
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1585
tember 16 I reported to work, and I asked Harry what was my assignment for
that day. He called me in to his station wagon . . . Mr. Kuhia told me that
I was going around and, you know, talking to the other boys and interfering
with the other union's business. So I told him, "Well, it is just a matter of
principle; I believe it is what I believe in, if it- is right, regardless of what"
union is involved, that I still talk about it." He told me that . . . "It you are,
a Teamster member, you should stick only to Teamster business and not any
other business." So well, I objected to that . Well, I told him "It is only a
matter of opinion." And later on he told me, "Well, if you think and feel the
same as Aki do," he said, "Why don't [you]' work for him?" He said, "As far
as I am concerned, you are through." So I said, "Well, in other words, am I
fired?" He said, "Yes. You are through." . . . I said, "Well, I am healthy
and I am not afraid to work, so I can get a job any time I want." So I just.
left it at that time. And Mr. Kuhia said, "Well, good luck to you." And I
left. That was the end.
When questioned with respect to Arashiro's dismissal, however, Kuhia denied any
knowledge of the complainant's activity as a Kauai Council of Trades dues col-
lector. According to the Respondent Union's vice president, his only contacts with
A.rashiro on the "South Pacific" project had been limited to incidental contacts
during the course of his employment; he denied any discussion with the complainant
designated about his activity as a dues collector for other organizations. Arashiro's
testimony with respect to their final conversation-on September 16, allegedly-was
categorically denied; Kuhia's testimony in that connection, instead, read as follows:
Well, I told him that since he was late one morning and there's a dot of people
on the waiting list, and the construction thing is all over and there was only
production going on, I don't think he's interested in bothering to even call me
and contact me to find out whether there is a job open. Well, he was suppose
to come in-work one day at 7:30 and he didn't show up. We had to put some-
body else on. We had to rush out and find somebody in Kapaa town to get
that boom truck up, and I told him, "From here on you should call me every
night. You have a phone," and I'm always calling people and telling them that
we.got extra equipment on and for them to come to work the next morning, and
when I called his house, the wife answered and she said that he's not home, so
I told her to have him call me, and so he just didn't go to work, so I told him
it's almost time we finish anyway so if we find any job, any extra job, I will call
him, and that was it . . . He wasn't working that day. He just came down.
Kuhia denied any comments to Arashiro about Aki or the Kauai Council of Trades,
insisting that his conversations with Aki after the Nilson election had been merely
casual.
With the record in this posture, resolution of the evidentiary conflict over
Arashiro's termination would seem to require somewhat close analysis. Particularly,
note should-be taken of the complainant's employment history. Fox payroll records
for the weekly payroll period ending August 31, 1957, listed Arashiro as a special
equipment operator; they establish that he was paid at the special equipment
operator's rate for 6 days' work. For the week ending September 7, 1957, he is
shown to have worked 2 days only, as a special equipment operator. Fox records
for the week ending September 14 list him as a driver; with respect to this portion
of the complainant's employment history, the General Counsel's representative
offered a stipulation that:
From the original payroll records of Twentieth Century Fox it is indicated
that for the week ending September 14, 1957, Yukio Arashiro worked 8 hours
on Monday, 8 hours on Tuesday, 8 hours on Wednesday, 8 hours on Thursday,
8 hours on Friday of that payroll period, and no ,time on Saturday, and that for
the payroll, period for the week ending September 21, 1957, they show that
Yukio Arashiro worked 8 hours on Monday of that payroll period and not
thereafter.
Counsel for the Respondents accepted this stipulation initially, then added that he
supposed it would be appropriate to say that Arashiro was "paid for 8 hours work"
on the last designated date. This revised statement with respect to the final portion
of the stipulation was accepted by the General Counsel's representative.
In this connection, however, the record establishes employment of a substantial
number of drivers and special equipment operators on the film project for the last
6 days of the September 14 payroll period. Specifically, the record summary of the
film corporation's payroll shows:
630849-62-vol 134--101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Date Drivers
Special -
equipment Total
operators
Sept 8 (Sunday)-------------------------------------------- 20 3 23
9 (Monday)------------------------------------------ 41 5 46
10 (Tuesday)---------------------------------------- 47 5 52
11 (Wednesday)--------------------- I--------------- 45 5 50
12 (Thursday)-------_ ------------- 44 5 49
13 (Friday)------------------------------------------ 44 5 49
14 (Saturday) ------------------------------------------- 44 5 49
w/e
These payroll records establish that the employment of transportation workers on
the "South Pacific" project reached a comparative peak during the September 8-14
calendar week, with Saturday employment at a level substantially comparable to
that maintained on 5 earlier days. Arashiro's employment as a driver from Monday
through Friday of the September 8-14 payroll week is conceded. Since Fox records
establish Saturday's employment as equal to Friday's, inference would appear to
be warranted that Arashiro was replaced ,for the last day of the payroll period. I
so find. His failure to report for Saturday work lends credence, in my opinion, to
Kuhia's testimony that a prior failure on his part to report for work figured in their
Monday, September 16, conversation. (Although the film corporation's payroll
records establish that Arashiro received pay for 8 hours' work on the 16th, both he
and Kuhia appear to be agreed that their final conversation took place early on that
date; they have also agreed that their conversation was followed by Arashiro's de-
parture. Under the circumstances, his receipt of compensation for services sup-
posedly rendered may be explainable, conceivably, as a generous "call-in" pay
allowance; alternatively, it may have been inadvertent. The matter need not be
decided.) The testimony of the Respondent Union's vice president, although gen-
eralized and vague in many other respects, presents a detailed and coherent exposi-
tion of the circumstances accompanying Arashiro's termination. Upon the entire
testimonial record, buttressed by my analysis of the Fox payroll records, I have
accepted Kuhia's version of their final conversation, previously noted.
6. The completion of the film project
For the balance of the September 15 to 21 payroll period, within which Arashiro
was terminated, ,the film corporation employed a transportation crew slightly smaller
than its peak crew of the previous week. Subsequently, however, crew employment
was gradually reduced. By Sunday, October 6, the transportation group had been
reduced to 32 men. Over the next few days, reductions in force were substantial.
By Thursday, October 10, 1957, all but one of the drivers had been terminated.
As of Saturday, October 12, the "South Pacific" project was completed.
E. Collection of initiation fees, dues, and assessments
For most of the 3-month period within which the film project was completed,
Respondent Kuhia had regularly solicited and collected money in the Respondent
Union's behalf from drivers and special equipment operators on the project payroll.
According to the film corporation's records, completion of the project required
the employment of 89 transportation workers at various times. (As previously
noted, Fox had employed its first transportation workers for the project on July 2,
1957; the last driver hired came to work on September 19. Upon the entire record,
inference would seem to be warranted that many of the employees hired were ter-
minated before the project's completion. The number of transportation workers
simultaneously in the employ of the film corporation never appears to have equaled
the total number of men employed.) Available evidence establishes that the Re-
spondent Union's vice president effectuated collections, varying in amount, from 63
of these transportation workers; out of the entire group, 26 drivers and special
equipment operators, including 11 of the 13 complainants herein, made no payments
whatever. Analysis of the record, with respect to those who paid, reveals their pay-
ment pattern as follows:
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1587
Initiation fee, dues, and assessments-
Complainant------------------------------------------------- 1
Others ------------------------------------------------------- 7
Initiation fee and assessments-
Complainant-------------------------------------------------
I'
Others------------------------------------------------------ 4
Dues and assessments---------------------------------------------- 19
Assessments only-------------------------------------------------- 31
Total---------------------------------------------------- 63
Reference has already been made to Rutledge's July statements-addressed to the
Nilson strikers and other Operating Engineers members-that people referred for
project transportation work would have to become Teamsters members, and that an
initiation fee, dues, and weekly assessments, computed as a percentage of wages
earned, would be collectible by Kuhia as the Respondent Union's agent. Upon the
entire record, there can be no doubt of Kuhia's authority to act in that capacity.
Considerable testimony was proffered with respect to Kuhia's actual collection ac-
tivity; much of it has not been disputed.
For example, Hosea Lovell, whose testimony in this respect I credit, reported
a contact by Kuhia approximately 2 weeks after his July 5 employment as a project
driver; he was told that he would have to pay the 10 percent assessment previously
noted. Thereafter, Lovell did pay the Respondent Union's $50 initiation fee, $30 in
dues for the last 6 months of the year, and an assessment equal to 10 percent of his
earnings-identified as "10% dues" on his receipts-beginning on July 20, 1957,
and continuing for the balance of his project employment.
About 1 week after Arashiro's July 9 employment by the Respondent Union,
Kuhia had informed him, I find, that if the transportation workers received their
pay on a weekend, he would give them until the next Monday to pay their initia-
tion fees and assessments, but that if they failed to pay, and furnished no reason
for their inability to do so, he would remove them from the job and have them
replaced. The Respondent Union's vice president denied having made such a state-
ment. His denial is not credited. As it witness, the Complainant Merseberg testified
to a statement made by Kuhia, during his period of employment, that "If the boys
don't pay the 10% they are out." The complainant's testimony in this respect was
undenied.
Statements of similar import were made to Arashiro by Kuhia, I find, after the
employment of the former as a film project driver. Beginning July 30, 1957,
Arashiro paid a $50 initiation fee, monthly dues, and weekly assessments, identified
as "10% dues" on his receipts.
About 2 days after the July 20 employment of Edward Kaiwa as a driver, Kuhia
requested him to pay his initiation fee and dues, telling him that he would have to be
taxed this amount to retain his employment. (Kuhia's testimony with respect to
his conversation with Kaiwa does not reflect a categorical denial. The Respondent
Union's vice president testified that Kaiwa had reported a statement by Naumu that
Fox drivers would have to pay a $50 initiation fee, $5 dues and a 10 percent assess-
ment, which he (Kuhia) had allegedly countered with a reminder that Rutledge had
so advised the Nilson strikers. With the record in this posture, I credit Kaiwa's
version of his conversation with Kuhia, noted.) On July 25, 1957, Kaiwa began pay-
ments on his $50 initiation fee, $20 in dues for the July to October period, and weekly
wage assessments.
One day, approximately in the middle of August, the Respondent Kuhia and
David Naumu summoned Fox transportation workers affiliated with the Respondent
Union to a postwork meeting at the Coco Palms Hotel yard; most of them attended.
The testimony of Arashiro with respect to ,the course of the meeting, which I credit,
reads as follows: -
Well, at that meeting Mr. Naumu did most of the talking. He told us that he
wanted to give us a clear picture as far as the Teamsters obligation to the boys
here on Kauai . . . So Mr. Naumu explained by saying that as long as they
paid the 10 percent dues and initiation fee and all the financial obligation to
the union, that they would stay on the movie job, and after the movie job was
over with they would not be obligated to [be] members, Teamster members
on Kauai, but if ,they were members in good standing and wanted to work
under Teamster, and if they wanted to come over to Honolulu, then they [the
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union] would try to help them out, help the boys out as far as
jobs were concerned . But as far as to guarantee [ any offer] of a job, they
made no such offer.
As a witness , Kuhia made no attempt to contradict this recital; Naumu , though
available for testimony , was not called to offer his recollections.
Arashiro testified , also with respect to a relevant incident which allegedly took
place at Hanalei , Kauai, early in September , when Kuhia sought to collect a week-
ly assessment from Wilbert Tai Hook , a driver. His reported recollections of the
incident read as follows:
I was present, Mr. Kuhia, [Wilbert Tai Hook] and Mr . William Chu . . . Mr.
Kuhia asked Mr. [Tail Hook for his 10 percent dues for the week that he had
worked before . Mr. [Tai l Hook explained that he didn 't have any money with
him. And Harry asked-and Mr . Kuhia asked Mr. [Tai ] Hook .to explain
why he didn 't have any money . So Mr. [Tail Hook explained that he went
to a night club and got drunk and he had treated all his friends and he didn't
have a cent to his name. Mr. Kuhia turned around and asked Mr. Bill Chu to
verify that statement. And Mr. Chu said , "That is correct . Mr. [Tail Hook
got drunk and treated all the boys and he didn 't have a cent to his name."
So Harry said , "Don't let it happen again." Then I walked away and Harry
and I drove back in his station wagon to Coco Palms . . . Yes, we discussed
it on the way coming back to Coco Palms . and Mr. Kuhia said he didn't
know whether to believe the story between Mr . Chu and Mr. [Tail Hook, that
Mr. [Tai l Hook-if Mr . [Tail Hook wanted to keep on working and don't
want to get in any trouble , it would be best for him to pay up his 10 percent
dues the following week when he received his pay . And if he planned on pull-
ing some [ thing] over him , that he was going to get somebody to work him
over or do it himself.
The record establishes the employment of Wilbert Tai Hookas a Fox transportation
Worker on August 12; his last day of employment does not appear , but the record
establishes his payment of $96 . 10 in weekly assessments . Arashiro's testimony with
respect to the incident noted has not been denied by the Respondent Union's
vice president ; I find the complainant 's recital credible.
As a result of his activities as a collector , under the circumstances noted, Kuhia
was able to remit substantial sums to the Respondent Union. The available evidence
establishes that he collected weekly 10 percent assessments from 17 Honolulu drivers
employed on the project ; within this group , 15 men also made monthly dues
payments , I find, sufficient to cover the period of their "South Pacific" employment.
The Respondent Union's vice president also collected weekly assessments and other
sums from 47 Kauai residents , in the Respondent Union 's behalf. (The sums col-
lected from Olaf Thronas-apparently one of the film corporation 's equipment
lessors, employed as a mechanic to service various pieces of equipment, his own
included-have not been considered relevant to the issue presented for determina-
tion, since he does not appear to have been employed by the film corporation as a
truckdriver , busdriver , or special equipment operator .) Within this group , 13 paid
the $50 initiation fee previously noted; no transportation worker credited with the
payment of an initiation fee appears to have paid less. Eleven Kauai residents were
credited by the Respondent Union with the payment of monthly dues, covering the
period of their film project employment . Three of these, however, appear to have
been credited with dues payments despite the absence of any indication with respect
to their concurrent payment of any initiation fee; William Fernandes, Samuel
Huddy, and Adam Silva , I find , were already union members.
Conclusions
A. The agreement between Fox and the Respondent Union
Elsewhere in this report , reference has been made to the General Counsel 's allega-
tion that the Respondent Union , by virtue of discussions which took place on July 1,
1957, specifically , became privy to a trade agreement with Twentieth Century-Fox
which included union-security arrangements in excess of permissible limits. Upon
the testimonial record , the General Counsel contends , initially, that Fox , as a result
of the discussions noted , improperly extended contractual recognition to the Respond-
ent Union as the exclusive representative of its Kauai transportation workers, since
it did so prior to the employment of any drivers and special equipment operators for
the "South Pacific" project . The agreement, arrangement , or consensus to which
Fox and the Respondent Union allegedly became privy has been challenged, also,
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1589
because of the purported understanding of the parties involved that drivers and
special equipment operators hired for work on the film project would be required to
become and remain members in good standing of the Respondent Union.
1. The applicability of the studio drivers contract
By way of defense the various Respondents assert, initially, that-throughout the
period with which this case is concerned-the valid union-security agreement effec-
tive between Twentieth Century-Fox and Studio Transportation Drivers, Local No.
399, of the International Brotherhood of Teamsters governed the film corporation's
employment of transportation workers utilized on the Kauai film project, just as it
had governed the corporation's employment of other "distant location" workers.
This contention-articulated, but not pressed, at the outset of the brief sub-
mitted for my perusal by counsel for the Respondents-must be rejected. By its
express terms, the studio trade agreement applied to workers in various designated
classifications employed by Twentieth Century-Fox within the State of California;
nothing in its terms will warrant a conclusion that Studio Transportation Drivers,
Local No. 399, of the International Brotherhood of Teamsters was recognized,
thereby, as exclusive representative of film project employees locally hired at distant
locations. The agreement's union-security provisions-which obviously applied to
regular studio employees, even when they might be temporarily assigned to distant
location work-were clearly not applicable, additionally, to out-of-State personnel
locally hired. For workers hired locally at distant locations, throughout the 11
Western States only, the agreement did reflect a commitment by Twentieth Century-
Fox that wage rates and conditions of employment would not be less favorable
than the wage rates and conditions contractually established for regular studio em-
ployees assigned to such locations. Clearly, however, the film corporation's con-
tractual commitment was merely a commitment to the labor organization which
represented its regular studio transportation employees; it cannot legitimately be
held .to have comprehended recognition of that organization as the exclusive repre-
sentative of locally hired personnel.
It should be noted, also, that the specific contractual provision which established
wage rates and conditions of work for distant location local hires merely related
to the employment of such workers within the 11 Continental Western States. Ex-
tensions of the commitment to govern distant location working conditions in Hawaii,
Alaska, and the three westernmost Canadian Provinces, throughout the period with
which this case is concerned, were not considered contractually required; rather,
they appear to have been negotiated, occasionally, with particular producers, usually
through some oral consensus or arrangement. The present record, however, will
not support a determination that Studio Transportation Drivers, Local No. 399, and
Twentieth Century-Fox ever negotiated such a commitment or reached a consensus,
with respect to the payment of contractually established rates for locally hired drivers
or special equipment operators on the "South Pacific" film project.
Upon the entire record, therefore, the studio agreement now. under consideration
cannot be relied upon to justify any course of conduct. attributable to the Respondents
in this consolidated matter.
2. The July 1 agreement
With the record in this posture, consideration must be given the General Counsel's
contention that Fox and the Respondent Union negotiated some agreement or con-
sensus on July 1 which included union-security arrangements more stringent than
the statute permits, although the Respondent Union did not, then, represent any
drivers or special equipment operators employed for the Kauai film project.
Counsel for the Respondent Union has appropriately characterized the General
Counsel's contention, with respect to this aspect of the case, as a contention that
Meyer and Respondent Rutledge reached some "separate oral closed shop agreement"
on the designated date, at the Beverly Hills studio of the film corporation. And,
analytically, this does appear to be the General Counsel's contention. The record,
however, reveals his reliance upon Meyer's July 2 letter to establish the substance of
the agreement reached. In the light of the available evidence, I find the General
Counsel's position with respect to the probative significance of the letter justified.
(Meyer's death, subsequent to the letter's dispatch, obviously leaves Rutledge the
only responsible participant in the July 1 discussion able to give comprehensive testi-
mony with respect to its tenor. Under such circumstances, the General Counsel's
proffer of Meyer's July 2 letter, predicated upon its materiality and relevancy to
establish the nature and content of the agreement Rutledge and he had previously
reached, would clearly be competent. Cf. Uniform Rules of Evidence, National
Conference of Commissioners on Uniform State Laws (1953), Rule 63(13). No
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objection to its receipt in evidence was offered . Should my determination with
respect to its admissibility be challenged , however, the evidence available with
respect to Rutledge 's ultimate written reaction, upon its receipt, would clearly war-
rant a finding , regardless , that Fox and the Respondent Union had reached some
sort of agreement or consensus , whether the exchange of correspondence now under
consideration be evaluated merely as evidence of a verbal agreement previously
reached, or alternatively , as a primary thing -in-issue which created and embodied
the agreement.)
As a witness , Rutledge made no serious effort to impugn Meyer 's written recapitu-
lation of their July 1 discussion ; although he did reject the General Counsel's interpre-
tation of the July 2 letter as correspondence reflective of a previously negotiated
improper union-security arrangement, the business manager did not challenge the ter-
minology used by the film corporations director of industrial relations to express the
substantive agreement which they had allegedly reached . Some weight , also, may
be attached to the absence of any challenge by Rutledge to the accuracy of the July 2
letter in his July 8 response. (While questioning the propriety of Meyer's reference to
$1.75 as the hourly wage rate which would be payable for construction teamsters,
the business manager raised no issue with respect to other aspects of the Fox director's
letter ; specifically , in regard to the portion which dealt with the conditions of
employment to be effectuated during the production phase of the film project, he de-
clared the letter acceptable .) Under the circumstances , the fact that this acknowl-
edgment of Meyer's letter may not have been transmitted in the form requested by
the Fox director of industrial relations must be considered immaterial.
Upon due consideration, however , I have not been persuaded that the agreement,
arrangement , or consensus achieved by Meyer and Rutledge provided for the
employment , assignment, and discharge of drivers and special equipment operators
on the "South Pacific" project exclusively by and through the Respondent Union;
nor have I been persuaded that the understanding reached required such employees
to designate the Respondent Union as their bargaining representative or to acquire
and retain membership in that organization , as the General Counsel alleges.
With respect to the construction phase of the project, the Respondent Union did
become committed to furnish Teamsters members for transportation work, in
such numbers as Fox might , through the exercise of its best judgment , require to
serve properly "all" of its project construction requirements; nothing in the July 2
letter , however, reflects any reciprocal commitment by Fox to recruit transportation
workers exclusively through the Respondent Union . (By way of comparison, note
may be taken of Meyer 's July 2 letter to Rutledge in his capacity as president of
the Honolulu Building and Construction Trades Council ; therein , reference is
made to the film corporation's agreement to utilize the services of qualified compe-
tent journeymen made available by various unions , during the construction phase
of the project , in such numbers as might be deemed necessary to fulfill the film proj-
ect's needs.)
To state the matter otherwise , Meyer's recital of the film corporation 's willing-
ness to employ Teamsters members furnished by the Respondent Union for trans-
portation work , cannot be found to have reflected a commitment by the film corpora-
tion to utilize the Respondent Union , exclusively, as a labor source . The statement,
attributable to the firm 's director of industrial relations , that employees would be
required to retain "AFL-CIO" membership clearly appears to have been applicable
only to "men so furnished" by the Respondent Union-that is, to any Teamsters
members made available and furnished for employment by the organization with-
out limitation or hindrance . With respect to the project 's production phase, Meyer's
letter does imply or suggest a film corporation commitment to recruit "all" drivers
required-with the exception of one so-called location captain and perhaps two or
three additional studio men-through the Respondent Union exclusively . This com-
mitment , however , cannot be considered explicit . And Meyer's failure to commit
Fox to require membership in the Respondent Union as a condition of employment,
during the production phase of the project , should be noted.
Essentially, then, the argeement, arrangement or consensus negotiated by Meyer.
and Rutledge, during their July 1 discussion, cannot be held to have involved any
commitment beyond a commitment to the practice followed by most movie pro-
ducers, whereby local labor organizations are requested to supply qualified men for
distant location work. I so find. The record suggests that such local contacts do not,
necessarily, reflect commitments on the part of any producer to rely upon the local
labor organization involved as an exclusive source of labor supply.
Expertise in the labor relations field might suggest, persuasively, the propriety of
an inference that Respondent Rutledge would have welcomed-may, indeed, have
sought-a commitment from Twentieth Century-Fox to rely upon the Respondent
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1591
Union as an exclusive referral source. Evidence sufficient to justify a conclusion
that some such commitment was made by the film corporation, explicitly, cannot
be found, however, in the present record. Meyer's careful language-expressive
merely of the Respondent Union's presumptive commitment to make available and
furnish Teamsters members for employment during the construction phase of the
Kauai project, in such numbers as the film corporation might deem necessary, through
the exercise of its best judgment-cannot legitimately be considered reliable, pro-
bative, or substantial evidence of a commitment by the firm to rely upon the Re-
spondent Union exclusively for the proper service of its construction requirements.
3. The practice of the parties
The General Counsel argues, however, that the parties privy to the July 1 agree-
ment, arrangement, or consensus actually established a practice indicative of some
understanding that: (1) All of the "South Pacific" drivers and special equipment
operators would be employed, assigned to work, and subjected to discharge exclu-
sively through the Respondent Union, by and through Respondent Kuhia, particularly,
by virtue of his dual status as an agent for both the film corporation and Respondent
Union; (2) such employees would be required to designate the Respondent Union as
their bargaining agent; and (3) they would be obliged to acquire and retain mem-
bership in the designated labor organization. Upon the entire record, this con-
tention, in my opinion, cannot be sustained.
While the treatment received by the complainants in this consolidated case may
conceivably deserve characterization as discriminatory treatment, reasonably calcu-
lated to encourage union membership, designation of the Respondents herein as
causative agents with respect to any discrimination found could not, itself, establish
the existence of a practice sufficiently pervasive to prove the existence or effectuation
of some proscribed agreement, arrangement, or consensus. Within the context of
this case, particularly, suggestions that specific instances of discrimination, alone, may
suffice to establish the general effectuation of some union security practice statutorily
proscribed, while superficially plausible, would reflect bootstrap argumentation.
Reference has been made to the advice which Rutledge and Kuhia gave the Nilson
strikers, substantially to the effect that the Respondent Union would function as an
exclusive referral agency for the transportation workers interested in Fox employment.
Prospective employment applicants may have been told, also, that membership in
the Respondent Union would be a condition precedent to their hire. These pro-
nouncements, however, were clearly unilateral; the record cannot be considered
sufficient to sustain a conclusion that such conditions were announced, established,
or generally enforced with the film corporation's acquiescence or concurrence.
Certainly, no substantial or probative evidence has been adduced that union mem-
bership was actually required as a condition precedent to project employment. The
film corporation's payroll records established the employment of 89 persons for
project transportation work; no more than 20 would seem to have been members of
the Respondent Union prior to their employment.
(The record establishes the employment of 17 Honolulu residents; each of them-
with 1 exception to be noted-paid monthly dues to the Respondent Union through-
out the life of the film project. Such conduct, certainly, would seem to warrant an
inference that each of them had established union membership prior to their film
project employment. I so find. Elsewhere in this report, also, reference has been
made to the fact that three Kauai residents-William Fernandes, Samuel Huddy,
and Adam Silva-similarly paid dues to the Respondent Union without any con-
current initiation fee payment; beyond any inferences that such conduct might
warrant, the record establishes their union status.)
While 13 project employees paid $50 initiation fees-with 8 paying dues addi-
tionally-the dates on which they paid have not ,been generally established. Thirty-
one paid weekly assessments only; another 26 employees including 11 of the 13 com-
plainants in this consolidated case, paid nothing to the Respondent Union. Since 56
of the 89 transportation workers, employed at one time or another by the film
corporation, appear to have been nonmembers permitted to acquire and retain
employment without paying initiation fees or dues to the Respondent Union-while
1 driver designated for the record as a Honolulu resident, presumably unionized,
was permitted to accumulate a dues delinquency during his employment period-the
record certainly cannot be found to establish the general effectuation of some dis-
criminatory union-security agreement, consensus, or arrangement for the Respond-
ent Union's benefit. Compare Victory Construction Company, 127 NLRB 400, in this
connection.
Nor does available evidence with respect to the film corporation's employment
practices establish its commitment to rely upon the Respondent Union as an ex-
1592 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clusive referral agency. Despite the negotiated July 1 agreement between Meyer and
the Respondent Union's business manager-presumably communicated to Project
Manager Stacey and Location Captain Palamountain, shortly, when Fox circulated
copies of Meyer's July 2 letter-responsible company officials continued to request
the Kauai Council of Trades to furnish drivers and special equipment operators. Aki
continued to refer transportation workers through July 11, long after Palamountain's
arrival at "South Pacific" headquarters. Aki's testimony, also, establishes his recog-
nition by Fox officials as a possible referral source for transportation workers, as
late as the 16th of the month. Elsewhere in this report it has been noted that, on
or about that date, representatives of the film corporation advised the Kauai Trades
Council agent that Rutledge had agreed to furnish transportation workers for em-
ployment at $1.75 per hour, plus certain fringe payments; he was requested to
,approve a similar arrangement as the local couuncil's representative. Despite his
rejection of this request, available evidence with respect to the incident will cer-
tainly sustain an inference that Fox officials on the island of Kauai did not con-
sider themselves committed to the Respondent Union as an exclusive employment
source. Relevant excerpts from Aki's testimony, which I credit, reveal that:
They talked about an agreement that they had made between themselves and
Mr. Rutledge . . . Mr. Ruman told me that there was a meeting in Hollywood
and that Mr. Rutledge was present at that meeting, and a certain agreement
was made between the Twentieth Century and Mr. Rutledge with reference
to the drivers and special equipment operators . . . As proof of that he showed
me the letter of acceptance that was mailed to Mr. Rutledge, or a copy of it
He asked why the drivers and operators could not be supplied at the rate
indicated in the letter, and I told him that those rates were even below the
Territorial Davis-Bacon rates . . . I told him that we couldn't supply them
with men at the $1.75 rate and that he would have to get all those men from
Mr. Rutledge . . . -
This testimony clearly reflects an assumption by discussion participants that Fox
might still utilize the Kauai Council of Trades for transportation worker referrals.
I so find.
The General Counsel, therefore, cannot be found to have established an exclusive
hiring agreement, arrangement, or consensus practically effectuated by the Respondent
Union and the film corporation. The Kauai Trades Council may not have referred
drivers and special equipment operators for project employment after July 11, but
its failure to continue such referrals cannot be held evidence of film corporation
compliance with previous commitments to rely upon the Respondent Union as an
exclusive referral source; Palamountain's ultimate decision to utilize Kuhia as a
recruiter of transportation workers must be attributed to his corporate employer,
obviously, but the record cannot be said to warrant a conclusion that it was made
to effectuate compliance with some antecedent exclusive referral arrangement, or
closed-shop contract, explicit or tacit, particularly absent evidence that driver ap-
plicants were refused employment solely because of this failure to establish union
membership, or a clearance for hire by some organization representative.
As previously noted, evidence with respect to the participation of the Respondents
in courses of conduct relevant to the termination of certain discriminatees-detailed
elsewhere in this report-may establish their responsibility for the discrimination
involved, but cannot, under the circumstances found, support the conclusion that
some agreement or consensual arrangement statutorily proscribed was being ef-
fectuated. And statements by Palamountain and Ledgerwood, previously noted,
indicative of their belief that Fox-because of some agreement with the Respondent
Union-lacked power to countermand the terminations, cannot legitimately be con-
sidered probative with respect to the existence of such an agreement, absent some
objective justification for their observations.
4. Kuhia's status as a dual agent
In this connection, the General Counsel contends, essentially, that Kuhia's effec-
tive designation as a personnel recruiter and supervisor reflects Palamountain's
abandonment of his employment, placement, and discharge powers as a Fox repre-
sentative, and his delegation of such powers to the Respondent Union and its agents;
the Union's vice president, rather than the location captain, has been characterized
in the General Counsel's brief as the "focal point" through which drivers and spe-
cial equipment operators were employed and given assignments.
Available evidence, certainly, will fully warrant an inference that Kuhia's re-
sponsibilities were numerous. He was required to perform functions clearly beyond
the scope of his routine assignment as Construction Foreman Ledgerwood's driver
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1593
on the film project . Upon receiving Palamountain's instructions with respect to
the type and number of transportation workers needed he was required to communi-
cate with interested persons, advising them to report for employment . As custodian
of Fox timecards for project transportation workers, he was responsible for the entry
of each new employee's name and social security number on such cards. For a
major part of the construction period, at least , he was required to record hours of
work, daily , for,all drivers and special equipment operators . Additionally, he ap-
pears to have been, responsible for the distribution of Internal Revenue Service
withholding tax forms for completion . He assigned employees .to the various pieces
of equipment they would be required to operate , and gave them instructions with
respect to their work locations . As the needs of the project fluctuated, he was ex-
pected to advise employees , at the close of each day's work, whether or not they
would be required to work the next day. When replacements became necessary,
he was required to obtain them. His apparent authority to effectuate discharges,
designating replacements for the dischargees , has been noted . Testifying generally
with respect to Kuhia's status and functions , Location Captain Palamountain stated
that:
. . . I would order a certain amount of men from Harry. In other words, I
would relay my needs to Harry and he would either call them, he evidently had
secured a list on the Island which I had no time to do. He was like a hiring
hall, sort of , and these were the men that came to work . . .
Although initially hired to drive , Kuhia was designated "gang boss" on July 22,
1957; thereafter , I find , he received the appropriate supervisory rate. Note should
be taken of the fact that no significant enlargement of his authority resulted; the
record will support a conclusion that he was merely asked , additionally , to see that
the drivers refrained from drink and performed their work properly. ( Kuhia's
testimony would indicate that Palamountain concurrently relieved him of his
responsibilities as a timekeeper . The location captain testified , however, that Kuhia
kept time for the transportation workers throughout the project 's construction phase
which ended on August 12, approximately . I have found it unnecessary to resolve
this record conflict. ) With matters in this posture, Kuhia's status as a film project
supervisor throughout the period with which this case is concerned, within the mean-
ing of Section 2(11) of the statute, would seem to be established.
Certain aspects of the record which buttress this conclusion should, however, be
noted. In the consolidated complaint , Kuhia was doubly characterized , both as a
shop steward and supervisor , for the duration of the "South Pacific" project. By
way of reply , Respondent Union and Rutledge initially conceded his status as a
Twentieth Century-Fox supervisor , merely denying his status as union shop steward;
their formal answer, jointly filed , included explicit acknowledgement that Kuhia's
material acts had been done on the film corporation 's behalf. Similarly , the answer
filed in behalf of the Union 's vice president initially admitted his employment as
a Fox supervisor , while denying his designation as the Respondent Union's shop
steward. ( By virtue of amendments subsequently authorized , the formal answers
of Respondent Union , Rutledge, and Kuhia now reflect denials of the General
Counsel's contention with respect to the latter's alleged status as ia Fox supervisor,
together with reiterated denials of his designation as the Respondent Union's shop
steward; only his employment as a driver is now conceded.) In a January 8, 1958,
letter, addressed to the General Counsel 's representative , counsel for the Respondent
Union and its business manager, clearly authorized to make admissions for his
clients, had previously conceded that, according to the Respondent Union, Kuhia
was, throughout the period material herein , a Fox employee with authority to hire
and fire. Similarly , in a letter dated April 7, 1958, Respondent Kuhia's counsel had
conceded his status, not only as a union official , but also as a Fox foreman.
Eschewing any determination of the dispositive sufficiency of these admissions,
taken alone , I find them nevertheless corroborative of the record evidence with re-
spect to Kuhia's authority. As the designated collector of numerous initiation fees,
dues, and assessment payments in the Respondent Union's behalf, he cannot , legiti-
mately, deny status as the labor organization 's shop steward. The available evi-
dence with respect to his responsibilities as a personnel recruiter , his authority to
designate which employees would work , his functions in connection with the assign-
ment of employees to specific equipment , and his authority to effectuate discharges,
would clearly justify a conclusion , also, that he functioned simultaneously as a film
project supervisor , within the statute's meaning , throughout the period with which
this case is concerned . I so find.
Recognition of Kuhia's dual capacity, however, may not be considered sufficient
to dictate 'a conclusion that Palamountain 's willingness to invest him with super-
visory authority and responsibilities evidenced the consummation of some unlawful
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union-security agreement , arrangement , or consensus . Nor can it justify the
General Counsel 's characterization of him as the single "instrument " through whom
such a union-security agreement was, actually , effectuated. Newspaper & Mail
Deliverers ' Union of New York & Vicinity , Ind. (Manhattan News Company), 121
NLRB 1287 , 1288; cf. Local Union 542, International Union of Operating En-
gineers, AFL-CIO ( United States Steel Corporation (American Bridge Division)),
122 NLRB 1324, enfd . as modified 46 LRRM 2205. In the General Counsel 's brief,
reference is made to the vice president 's supposed obligation , pursuant to the consti-
tution of the Respondent Union's parent organization , to "organize under one ban-
ner all workmen engaged in the craft ." The quotation noted , however, reflects an
International Brotherhood of Teamsters objective . It does not appear in that
organization 's constitution as a mandate directed to union officials or members,
generally, regardless of their possible craft employment in some supervisory ca-
pacity. Nothing in the language cited can be said to require a determination that
Kuhia functioned on the "South Pacific" project subject to specific union obligations.
Previous administrative determinations , which have predicated some conclusion
with respect to the negotiation or effectuation of union -security arrangements,
subject to statutory interdiction, upon evidence that union members constitutionally
bound to prefer fellow members for employment had been vested with supervisory
authority , may therefore be considered inapposite . See Grove Shepherd Wilson &
Kruge, Inc., 109 NLRB 209, 213-216 ; United Brotherhood of Carpenters and Join-
ers of America , Local #517 AFL ( Gil Wyner Construction Company ), 112 NLRB
714, 716 ; Millwright Local Union No. 2484, et al. (W . S. Bellows Construction Cor-
poration ), 114 NLRB 541, 549-550; Enterprise Industrial Piping Company, 117
NLRB 995, 996; Carpenters District Council of Rochester and Vicinity, et al.
(Rochester Davis-Fetch Corporation ), 122 NLRB 269 , 279; McCormick Construc-
tion Company , 126 NLRB 1242, March 23, 1960 . Certainly no presumption of law
can be indulged that the Respondent Union and film corporation understood or agreed
that Kuhia would be guided by any union obligations-whatever their nature-
rather than by those relevant to his employment . Cf. Honolulu Star Bulletin, Ltd.
v. N.L.R.B., 274 F. 2d 567 (C.A.D.C.); N.L.R.B. v. News Syndicate Company, Inc.,
et al., 279 F. 2d 323 (C.A. 2) It may have been recognized , perhaps, that the
Respondent Union 's vice president, vested with supervisory responsibilities, would
be free to discriminate against employment applicants without union affiliation. 'But
the mere grant of power to discriminate cannot be held to imply film corporation
assent to Kuhia's exercise of such power . Miami Valley Carpenters District Council,
etc. (Bowling Supply and Service , Inc., et al., doing business as Boyd Construction
Company ), 127 NLRB 1073; N.L.R.B. v. News Syndicate Company, supra. Else-
where in this report , note has been taken of the record 's failure to establish,
extrinsically , Kuhia's exclusive status as an employment recruiter, together with its
parallel insufficiency to justify a conclusion that actual discrimination permeated
the film corporation 's general employment policy or practices . Under such circum-
stances, I find , Kuhia's course of conduct with respect to the discharge of his super-
visory responsibilities-whatever its propriety in specific instances to be noted-
cannot legitimately be found to evidence effectuation by the parties of some illegal
union-security agreement or consensual arrangement.
B. The terminations of employment
1. The discharge of the Nilson strikers
It is the General Counsel 's position that the Respondent Union, through its
officers, agents, and representatives-particularly Respondents Rutledge and Kuhia,
the latter as an agent and representative of both the Respondent Union and the film
corporation-attempted to cause and did cause discharges , on or about July 19 and
20 for 11 of the complainants in this consolidated case; he charges that the Respond-
ent Union sought the dismissal of these Fox employees because ( a) they were not
organization members; (b) the Respondent Union had received no votes in the
Nilson consent election ; and (c) the employees in question were suspected of mem-
oership in the Operating Engineers , or support for that organization . The drivers
and special equipment operators covered by this contention are: Joaquin Amorin,
George Baptista , Daniel Brum , James N. P. Kaneakua , Franklin Kelekoma, Jacob
Merseberg , Nakoto Murata, Libert Nakaahiki , Tarao Nakamura, Takeo Sakamoto,
and Chai Tin.
First, with respect to the relationship between these complainants and the Respond-
ent Union : Upon the entire record, there can be no doubt that none of the com-
plainants designated had even attempted to satisfy ,the Respondent Union's financial
requirements incidental to the acquisition of membership , prior to their dismissal
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1595
and replacement . While the available evidence may establish the execution of union
membership applications by the complainants at Respondent Rutledge's request or
suggestion , none of them appears to have made an effort to achieve union member-
ship . The General Counsel's contention , also, with respect to the Respondent
Union 's knowledge of their concurrent Operating Engineers membership-which had
clearly become fully effective prior to the July arrival of the respondent business
manager-must be considered established; it has not been seriously challenged. In
the light of the available evidence , I find the Respondent Union and its representa-
tives chargeable with knowledge of the fact that these Fox employees held member-
ship in the organization designated . Finally, the Respondent Union 's awareness of
its failure to win a single vote in the Nilson election, conceded for the record,
clearly included an awareness of the fact that the complainants designated had been
involved . Seven had voted without challenge in the election , though four---despite
their claims of eligibility-had been forced to cast challenged ballots. It is the
General Counsel 's contention, of course , that these facts, known to the Respondent
Union and its representatives , motivated the discharges of the complainants now
under consideration.
The circumstances involved in the termination of their employment must be con-
sidered , therefore, together with the General Counsel 's contention that the Respond-
ent Union , Rutledge , and Kuhia functioned as causative agents with respect to each
of the terminations noted . For most of the complainants terminated in July, a con-
clusion that discharge action was involved-coupled with the attribution of re-
sponsibility to the Respondent Union , Rutledge, and Kuhia specifically-would ap-
pear to be fully warranted.
The status of Kuhia as a union official has not been disputed ; elsewhere in this
report . also, his concurrent supervisory status on the film project, within the mean-
ing of the statute , has ben noted . As a supervisor in the statutory sense, clearly,
Kuhia actually effectuated the dismissal of most , though not all, of the complainants
whose terminations are now under consideration . Counsel for the Respondents
has effectively conceded , however, that these complainants were not dismissed at
the instance of the Respondent Union 's vice president for reasons related to their
employment . ( Nothing in the record will support any inference whatever that
their job performance was considered deficient , or that force reductions were being
effectuated .) Central to the defense presented in behalf of the Respondents, there
will be found a contention , inter alia, that the July terminations were effectuated by
Respondent Kuhia to facilitate consummation of an arrangement for the settle-
ment of the Nilson strike , negotiated by Respondent Rutledge and various Nilson
representatives ; this contention, regardless of its merit , reflects a concession, es-
sentially, that Kuhia 's decision to effectuate the terminations was a decision which
he made as a union representative , for which the Respondent Union must be held
accountable ; I so find.
Elsewhere in this report reference has been made to Kuhia's July .19 announce-
ments that Nakaahiki , Kaneakua , and Merseberg would be replaced . The available
evidence establishes that Chai Tin was advised by the Union's vice president that he
was "pau" on the same date. That evening, also, Tarao Nakamura was told, "You
are being replaced tomorrow" by the Respondent designated. The next morning,
Baptista and Kelekoma were informed that they were "pau"; that evening, also,
Amorin was told, "This is your last day," by the union official.
The available evidence , however, cannot be considered sufficient legally, to sup-
port a determination that Kuhia was responsible for the termination of Murata,
Brum , or Sakamoto Murata's testimony establishes his receipt of Arashiro's infor-
mation that his "replacement" was available . On July 19, 1957, however, Arashiro
could not be considered the Respondent Union's representative ; Rutledge had already
terminated his employment as a union organizer , primarily because of his apparent
failure to persuade the Nilson strikers to remain loyal to the Respondent Union as
their regular collective representative . While he appears to have been one of Kuhia's
personnel recruiters , prior to the 18th of the month , no contention can be spade,
legitimately , that his apparent authority as a representative of the Respondent
Union extended to the announcement or effectuation of discharges . When Murata-
apprised by Arashiro of his replacement-took his dismissal for granted , his es-
sentially unilateral determination foreclosed a test of Kuhia's intention to effectuate
his replacement ; neither the Respondent Union nor Kuhia , therefore , can be con-
sidered responsible under the statute for the termination of his employment as a
film project driver. The General Counsel , also, has failed to establish the re-
sponsibility of the Respondents herein for the terminations of Brum and Sakamoto.
Brum 's testimony reveals that Olaf Thronas, the Fox master mechanic , told him
he was "through" as a tractor driver. The documentary record may well support an
inference that Thronas was a union member . But no suggestion has been advanced
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he possessed the authority, actual or apparent, to effectuate layoffs or dis-
charges as Kuhia's representative . While suspicious , Kuhia's subsequent failure
to give Brunt a July 20 assignment , taken alone, cannot be considered reliable,
probative, or substantial evidence with respect to his termination. Elsewhere in
this zeport, note has been taken of Sakamoto's testimony that Kuhia's termination
of the Nilson strikers was announced by Aki at a short July 19 meeting in the Coco
Palms yard. The General Counsel, clearly, would make no contention that such an
announcement by the Operating Engineers representative sufficed to establish Kuhia's
responsibility, or that of the Respondent Union, with respect to Sakamoto's termina-
tion , absent evidence of any direct communication whatever between the com-
plainant designated and the Respondent Union's vice president. Together with
Brum, Sakamoto appears to have reported at Coco Palms on the morning of July 20;
while Kuhia's failure to give him an assignment does suggest the possibility of a
valid inference that the latter may have been responsible, finally, for the cessation
of his employment, evidence sufficient to justify such a conclusion cannot be found in
the record.
Taken as a whole, obviously, the available evidence- could, indeed, be found
sufficient to suggest some reasonable justification for the patent assumptions of the
three complainants that Kuhia, pressed for assignments, would have advised them,
instead, of their replacement. Actual proof with respect to the replacement of these
particular employees on the 20th of the month, however, has not been provided.
In the absence of such proof, Kuhia's nonfeasance-specifically, his failure to con-
firm their retention of prior assignments-cannot be considered indicative of their
actual or constructive discharge. It would seem to follow, obviously, that respon-
sibility for the termination of their employment cannot legitimately be attributed to
Kuhia or the Respondent Union
With respect to the eight Nilson strikers whom Kuhia clearly terminated and
replaced, however, argument has been presented with respect to the supposed failure
of the General Counsel to establish any motivation statutorily proscribed. Refer-
ence has already been made to the contention of counsel for the Respondents that
Kuhia effectuated these July terminations to facilitate the consummation of a settle=
meat arrangement for the Nilson strike, previously negotiated by Respondent
Rutledge and various Nilson representatives. In his brief, this contention has been
phrased as follows:
Unless one blindly follows the self-interest of the compainants in seeking a
money recovery for themselves, the record compels a finding ,that Rutledge had,
with the approval of the strikers and of the r leaders Aki and Arashiro, effec-
tively negotiated a strike settlement agreement calling for the return of the
men to work for Nilson after the election . . no fair reading of the record
can change the fact that such a program was agreed to by all concerned prior to
the alleged date of discrimination against all of the claimants, except Ara-
shiro . . . . Under Aki's urging, the men were induced to repudiate the strike
settlement agreement as well as their support of the Teamsters' Union in the
election. Neither Aki nor any of the strikers notified Rutledge or any other
Teamster official that they had reneged on the strike settlement agreement.
The fact that they had been induced to vote for the Operating Engineers rather
than the Teamsters at the election, would not, of itself amount to any uni-
lateral repudiation of the strike settlement agreement . because the strike
settlement, itself, had been jointly sponsored by both the Engineers and the
Teamsters. The General Counsel would "sweep under the rug" all of the
evidence in the case showing that a fair and square strike settlement agreement
had been entered into and that the Teamsters carried out the strike settlement
agreement. He, no doubt, will argue that the men were terminated on the
Fox job because the Teamsters' Union was angry over loss of the election.
Such an assumption may be made but no evidence supports it. On the contrary,
the circumstances shown in the evidence raise a policy question as to whether
complainants should profit by their repudiation of their own strike settlement
agreement. Put another way, would it effectuate policies of the Act, to cause the
Teamsters' Union to finance a strike maintained by another Union in violation
of the strike settlement agreement participated in by both unions and the
strikers themselves.
Vigorously argued, these contentions must, nevertheless, be rejected. Despite the
discursive testimony of the Respondent Union's business manager , available evi-
dence-taken as a whole-will not support a determination that Rutledge was ever
actually authorized to negotiate any settlement representing the Nilson strikers. It
cannot even be considered sufficient to establish the complete negotiation of such
a, settlement . Finally, with an assumption , arguendo, that the Respondent Union's
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1597
business manager may have achieved some sort of informal consensus with respect
to a settlement formula, the record will not sustain any determination that com-
plainants previously in Nilson 's employ were terminated by Kuhia pursuant to such
a consensus or settlement arrangement.
Rutledge apparently did advise a Kauai residents ' group-with Operating En-
gineers affiliation-that submission of their applications for Teamsters membership
would enable him to attempt a settlement of the Nilson strike, pursuant to which
they might be able to resume work pending their designation of a statutory bargain-
ing representative . Clearly, however, the group was informed , simultaneously, with
respect to the availability of well-paid transportation work on the film project and
the corporation 's purported recognition of the Respondent Union as exclusive referral
agency for such transportation work; Rutledge also advised the Kauai residents that
they would have to become Teamsters members and satisfy certain financial require-
ments as a condition precedent to their qualification for film project referrals. I have
so found. With matters in this posture, the testimonial record would certainly seem
sufficient to justify an inference that the possibilities of their film project employment
motivated the subsequent actions of the workers Rutledge addressed more than any
strike settlement prospect . (Elsewhere in this report , reference has been made to the
fact that the group addressed by the Union's business manager included workers
other than Nilson strikers; those not involved would hardly have been likely to ap-
prove Teamsters affiliation merely intended to invest Rutledge with authority to negoti-
ate a strike settlement with the contractor designated.) Even with every doubt re-
solved for the Respondents, the testimonial record would only support a conclusion
that membership applications submitted to the Respondent Union on the 6th and 7th
were doubly motivated-or, alternatively, that the prospect of film project employ-
ment was at least as persuasive with respect to the question of Teamsters affiliation as
the prospect of a successful strike settlement.
Whatever conclusion might be reached, however, with respect to Rutledge's
authority, the record will not support a determination that he actually negotiated
some consensual arrangement with Nilson representatives worthy of designation
as a settlement agreement . The available evidence in this respect-which has not
been detailed in this report-suggests that Rutledge may have sought a commitment
from Nilson to offer his strikers reinstatement, after an Agency-conducted election,
and that he may have won Nilson's tacit agreement to grant a small wage increase;
no effective contention can be made, however, that the contractor ever agreed to
make a reinstatement offer to particular strikers , at some specific time , or that his
presumptive willingness to grant a wage increase was ever made explicit . Considered
most favorably, Rutledge's effort relative to a Nilson strike settlement merely
produced (1) some tentative indication by the contractor of his willingness to offer
the strikers reinstatement if and when their services might be required, and (2) some
tentative indication of the contractor 's readiness to rehire the men with a small wage
increase, which could not be promised specifically because of the presumptive effect
such a commitment might have upon the outcome of the anticipated representation
election. Any realistic appraisal of the situation will suggest the validity of an in-
ference that Nilson, obviously, desired the strike's termination, since such a develop-
ment would enable him to bid for contract work on the film project. He may have
been hopeful , indeed , that some vague inducements of the type ultimately suggested
to the Respondent Union 's business manager, would persuade his employees to
abandon their current strike action. Willingness to extend such inducements, how-
ever, cannot be equated , realistically , with a negotiated strike settlement.
Since Rutledge, therefore , had nothing concrete to offer the Nilson strikers during
his July 7 address to the Operating Engineers group, their indication of willingness
to organize a Teamsters unit on the island of Kauai cannot be considered tantamount
to acceptance of some settlement agreement.
Should a contrary determination be considered warranted, evaluation of the testi-
monial record as sufficient to establish the initial willingness of the strikers to abandon
their strike action and resume work-pursuant to Nilson 's reported terms-would not
establish the continued viability of such intentions after the Agency-conducted elec-
tion . In behalf of the Respondents it has been argued that the failure of the Nilson
strikers to designate the Respondent Union as their exclusive representative did not
reflect "unilateral repudiation " of some purported strike settlement agreement since
the settlement, itself, had been sponsored jointly by the Operating Engineers and the
Respondent Union. This interpretation of the situation must be rejected. The
argument with respect to joint sponsorship seems to have been based upon the fact
that Aki , designated as an Operating Engineers representative , had summoned the
Nilson strikers to the July 7 meeting, when Rutledge allegedly reported his prior
discussion with Nilson representatives . Without regard to my rejection , elsewhere
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Rutledge's testimony with respect to his remarks, however, joint sponsorship of
such a report could hardly be inferred, either from Aki's patent willingness to sum-
mon the men or his expressions of acquiescence when queried as to whether their
execution of Teamsters applications would be advisable The Respondent Union's
business manager had previously advised the Operating Engineers representative of
his intention to assert the organization's trade jurisdiction, both with respect to Nil-
son's employees and the film project. Under such circumstances, Aki's reluctance
to insist upon his organization's claimed right to represent the Nilson strikers-with
respect to the negotiation of any strike settlement-must be considered indicative of
nothing more than a disposition to avoid conflict; evaluation of such reluctance as
tacit endorsement or joint sponsorship of Rutledge's program-regardless of its
vagueness-would clearly be unwarranted.
Finally, counsel 's suggestion that Kuhia may have terminated the complainants
tnd procured their replacement to effectuate some strike settlement agreement can
only be characterized as a suggestion without record support. First, absent evidence
sufficient to establish either Rutledge's authority to negotiate a strike settlement or
his achievement of definitive Nilson commitments , no conclusion would be war-
ranted that Kuhia ever had a substantive agreement to effectuate. Second, the suffi-
ciency of the available evidence to establish ballot-box repudiation of the Respondent
Union by the Nilson strikers would also seem to call for a conclusion that any con-
ceivable Rutledge-negotiated strike settlement had been rejected. With the Respond-
ent Union's repudiation, all rights of decision with respect to Nilson's vague settle-
ment inducement would necessarily revert to his striking employees; lacking status
as their exclusive representative , the Respondent Union and Kuhia certainly could
not have considered themselves obligated, legally, to enforce supposed commitments
by strikers with respect to their employment resumption . Additionally, note should
be taken of Kuhia's failure to cite the strike settlement agreement when apprising
the complainants of their termination or replacement ; no reference whatever, either
derisive or sincere, appears to have been made by him to the availability of Nilson
employment.
Contrariwise, indeed, Kuhia made several remarks-noted elsewhere in this
report-indicative of his intention, rather, to punish the Nilson strikers employed as
Fox transportation workers for their unwillingness to accept Teamsters repre-
sentation. Reference has been made, also, to the hurried joint efforts of Rutledge
and Kuhia-assisted by Duarte, Naumu, and Fernandes particularly-to procure
replacements on the 18th, 19th, and 20th of the month. The hectic character of this
recruitment activity would certainly seem to call for an inference that the need to
replace the complainants as film project employees after the Nilson election, pur-
suant to some precedent arrangement, had not been anticipated. I so find. When
nine complainants later made a simple , unqualified offer to pay initiation fees and
dues to the Respondent Union, Rutledge professed confusion with respect to their
desires, based upon his awareness of their presumed votes for Operating Engineers
representation in the Nilson election. His comments in this connection, clearly
without relevance to the offer communicated, suggested convincingly the extent to
which the Respondent Union's failure to win votes in the consent election continued
to rankle in the business manager's breast.
Upon the entire record, I find Respondent Union, Rutledge, and Kuhia responsible
for the July termination of Amorin, Baptista, Kaneakua, Kelekoma, Merseberg,
Nakaahiki, Tarao Nakamura, and Chai Tin, eight of the complainants in this con-
solidated case. The available evidence must be considered entirely sufficient, also, to
justify a conclusion that Kuhia terminated these Fox employees pursuant to the
authority with which he had been vested as a dual agent of both the Respondent
Union and film corporation, because of his knowledge with respect to their failure
to acquire and maintain membership in the Respondent Union, his suspicions with
respect to their continued Operating Engineers membership, and his resentment be-
cause of their rejection of the Respondent Union in the Nilson election. The termi-
nations noted, effectuated for the motives indicated, reflect a successful effort by the
Respondents designated to cause film corporation discrimination with respect to the
employment tenure of the complainants named above, reasonably calculated both
to encourage membership in the Respondent Union and to discourage membership
in the Operating 'Engineers or any other labor organization.
2. The discharge of Joseph Nakamura
For Joseph Nakamura, credible testimony offered in the General Counsel's behalf
establishes Kuhia's belief with respect to his status as a Nilson striker. The testi-
monial record also establishes this complainant's 'discharge 'after the completion of
TEAMSTERS, AND ALLIED WORKERS, HAWAII LOCAL 996 1599
his work on July 20, because of his refusal to make an initiation fee payment to the
Respondent Union, which Kuhia had requested; testimony to the contrary, proffered
by the Respondent Union's vice president, has been rejected. With the record
in this posture, no determination with respect to Kuhia's precise motivation for the
dismissal in question would appear to be necessary. Conceivably, Nakamura's lack
of willingness to satisfy the Respondent Union's fee demand, which its vice president
had relayed, could have been the determinative factor. Alternatively, Kuhia's
belief with respect to Nakamura's status as a Nilson striker, buttressed by the crane
operator's declaration of his intention to retain Operating Engineers membership,
may have been decisive. Either conclusion-justified by the testimonial record-
would fully support a determination that impetus for the dismissal of the complain-
ant designated came from the Respondent Union, Rutledge, and Kuhai, and that his
replacement involved discriminatory treatment, reasonably calculated to encourage
membership in the Respondent Union and, concurrently, to discourage membership
in the Operating Engineers or any other labor organization. I so find.
3. Arashiro's termination
Upon the entire record, it would seem to be the General Counsel's contention that
Arashiro was deprived of regular employment by Kuhia early in September 1957, and
terminated on the 16th of the month because of the union official's opposition to the
former's continued interest in Kauai Trades Council affairs. Elsewhere in this report,
however, the presence of record conflict with respect to the circumstance of Arashiro's
disputed termination has been noted; that conflict has been resolved by my acceptance
of Kuhia's version, primarily because of its consistency with the available film cor-
poration payroll records. Additionally, note should be taken of Arashiro's complete
failure to cite any statements or conduct by the Respondent Union's vice president
which would warrant a conclusion that the complainant's limited employment during
the September 7 payroll period reflected discrimination bottomed upon motives statu-
torily proscribed. With respect to his termination, Arashiro reported Kuhia's reliance
upon his alleged failure to call for work or report early, but made no effort to deny
the legitimacy of such comments about his lack of application. Finally, candor would
seem to warrant an observation that Arashiro's report with respect to his last con-
versation with Kuhia attributes sentiments to the latter which could hardly be con-
sidered reasonably sufficient to motivate the termination now in question. Pro-
duction phases of the film project were well advanced; Teamsters activity within the
driver and special equipment operator group had settled into unchallenged routine.
Arashiro's activity in behalf of the Kauai Council of Trades had not involved con-
tacts with transportation workers and had not affected the Respondent Union. The
complainant's testimony that his final termination had been bottomed upon Kuhia's
professed resentment of his KTC tie, therefore, can hardly be considered credible.
Upon the record, taken as a whole, the impropriety of Arashiro's termination can-
not be considered established.
'C. Financial requirements
1. Initiation fees
The General Counsel alleges that the Respondent Union, through Rutledge and
Kuhia, requited Fox transportation workers to pay $50 initiation fees as a con-
dition precedent,to the achievement of union membership, pursuant to the collective-
bargaining agreement, arrangement, consensus, and hiring practice which they
allegedly effectuated. ' These initiation fees are characterized as excessive and dis-
criminatory; the General Counsel contends that their imposition and collection, under
the circumstances, involved an unfair labor practice under Section 8(b)(5) of the
statute. This contention must be rejected. The cited statutory provision reads as
follows: -
It shall be an unfair labor practice for a labor organization or its agents . . .
to require of-employees covered- by an agreement authorized under subsection
(a) (3) the payment, as a condition precedent to becoming a member of such
organization, of a fee in an amount which the Board finds excessive or dis-
criminatory under all the circumstances. [Emphasis supplied.]
No contention has -been made that the collective-bargaining agreement, arrange-
ment, consensus, or hiring practice allegedly effectuated by the Respondents and the
film corporation embodied permissible union-security arrangements, authorized under
Section 8(a) (3) of the statute. It would therefore seem to be clear-regardless of
the validity of my determination, elsewhere in this report, that no trade agreement,
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arrangement, consensus , or employment practice statutorily proscribed had been
negotiated or enforced on the film project-that Section 8(b)(5) of the Act, as
amended , has no application in these cases . Compare Ferro Stamping "and Manu-
facturing Co., 93 NLRB 1459, 1460; Local 153, International Union, United Auto-
mobile Aircraft and Agricultural Implement Workers of America, UAW-CIO
(Bendix Aviation Corporation), 99 NLRB 1419; Food Machinery and Chemical
Corporation, 99 NLRB 1430; Brewery Workers Union Local No. 102, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO (Anheuser-Busch, Incorporated), 116 NLRB 178; International Associa-
tion of Machinists, Precision Lodge No. 1600 (Adel Precision Products, Division of
General Metals Corporation), 120 NLRB 1223, 1225-1227; Local 173, International
Molders and Foundry Workers Union of North America, AFL-CIO (Hubley Manu-
facturing Company), 121 NLRB 170, 174-175; Motion Picture Screen Cartoonists,
Local 839, L.A.T.S.E., 121 NLRB 1196; Local 611, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (St. Louis Bakery
Employers Labor Council, et al.), 125 NLRB 1392. I so find.
The General Counsel has also alleged, generally, that the Respondent Union's im-
position of excessive and discriminatory initiation fees for "South Pacific" trans-
portation workers, with the fee considered a condition precedent to membership in
that organization-pursuant to the provisions of the Respondent Union's alleged trade
agreement, arrangement, understanding, and hiring practice on the film project-re-
strained and coerced Fox employees in the exercise of rights statutorily guaranteed.
Elsewhere, however, the conclusion has been reached that no agreement, arrangement,
consensus , or practice statutorily proscribed was ever negotiated or effectuated for
the project. No coercion or restraint related to the imposition or collection of
initiation fees, therefore, can be attributed specifically to the existence or application
of such a contract, arrangement, understanding, or employment practice. Subse-
quently in this report, my conclusion with respect to the impropriety of the methods
used by the Respondent Union and its representatives to collect money from Fox
transportation workers will be detailed. In the light of those conclusions, no present
necessity appears for a determination whether the initiation fees collected were really
excessive or discriminatory, measured .by statutory standards. (Because of my con-
clusion with respect to the immateriality of this issue, I have eschewed any attempt
to discuss the defensive contentions of the Respondent Union and its business man-
ager (1) that initiation fees on movie projects were set high, deliberately, to permit
the accumulation of a fund for the promotion of island film productions; and (2) that
such fees did not exceed the initiation fees charged members of some other industry
groups within the Teamsters organization.) Nor does a determination appear to be
presently necessary as to whether the mere collection of initiation fees allegedly
excessive and discriminatory-absent the coercive thrust of some union-security
agreement , arrangement , understanding, or practice-restrains and coerces employees
in violation of Section 8 (b) (1) (A) of the statute.
2. Dues, initiation fees, and weekly assessments
The entire range of financial obligation imposed upon the film project's transpor-
tation crew has been questioned, generally, in the General Counsel's behalf; his
consolidated complaint challenges Kuhia's actual collection of dues, initiation fees,
and weekly assessments : (1) As a successful union effort to cause discrimination
by Twentieth Century-Fox against employees and employment applicants, for ob-
jectives statutorily proscribed; and (2) as effective restraint and coercion of em-
ployees and employment applicants engaged in the exercise of rights statutorily
guaranteed. In short, the course of conduct attributed to the Respondent Union
and its representatives, in this connection, has been characterized as violative of
Section 8(b) (2) and Section 8(b) (1) (A) of the Act, as amended.
Reference has already been made to the General Counsel's failure to establish
the negotiation or effectuation of any "collective bargaining agreement, arrangement,
understanding and hiring practice" by the Respondent Union and the film corpora-
tion It would seem to follow-regardless of questions which might otherwise be
raised with respect to the payment of initiation fees, dues, and weekly assessments
by the film project employees-that no contention can legitimately be made that
such payments were required pursuant to the provisions of such a trade agreement,
arrangement, consensus , or employment practice. ' Cf. Houston Maritime Associa-
tion, Inc., and Master Stevedore Association of Texas, 121 NLRB 389, 392-393.
Argument that the Respondent Union, through representatives, attempted to cause
or did cause Fox discrimination against employees and employment applicants,
by requiring them to meet certain financial obligations as a condition of employ-
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1601
ment pursuant to some definitive agreement or consensual arrangement must there-
fore be rejected.
As a whole, however, the record provides ample evidence that the Respondent
Union's vice president-empowered by his supervisory capacity on the film project-
first effectuated Joseph Nakamura's discharge professedly because of his failure to
satisfy union financial requirements, and thereafter conditioned Merseberg's reem-
ployment as a project driver upon his promise to pay an initiation fee, dues for the
duration of his film project employment, and weekly assessments, without regard to
the absence of an agreement or consensual arrangement justifying such conduct.
(In this connection, also, note may be taken of a subsequent written concession by
John Felix-previously identified as Rutledge's administrative assistant-that "If
the other charging parties had only complied with suggestions made by 'Mr. Rutledge
[as Merseberg did] they would have been given work.") Kuhia's activity in this
connection clearly reflects two successful attempts to cause employer discrimination
against employment applicants violative of Section 8(a) (3) of the statute. I so find.
With respect to the General Counsel's contention-implicit in his consolidated
complaint's language-that Kuhia's activity as a collector of union fees, dues, and
assessments involved restraint and coercion, little more need be said. Unions or
their representatives may not lawfully threaten to do that which would be unlawful
for them to do. The Eclipse Lumber Company, Inc., 95 NLRB 464, 473. They
may not, indeed, resort to conduct statutorily proscribed to collect funds, whether
or not legitimately owed. Bay Counties District Council of Carpenters and Joiners
of America, AFL-CIO, et al., 117 NLRB 958, 972; Montgomery Ward & Company,
Incorporated, 121 NLRB 1552, 1558; United Construction Workers, Division of
District 50, United Mine Workers of America (The Jeffrey Manufacturing Co.),
122 NLRB 1, 5; Spector Freight System, Inc., 123 NLRB 43, 44; of. Detroit Plastic
Product Company, 126 NLRB 1182. Effectuation of this principle necessarily dic-
tates agency proscription of union efforts-revealed in the present record-to collect
fees, dues, or assessments by threats of physical violence, threats to effectuate the
discharge of delinquent employees, or statements indicative of the Union's intention
to require job applicants to achieve organization membership as a condition precedent
to employment. Credible testimony, detailed elsewhere, establishes such conduct
by the Respondents, Rutledge and Kuhia, in behalf of the Respondent Union.
With respect to Kuhia's aotivity-specifically, his various threats to terminate
the employment of financially delinquent transportation workers, and his single
threat to have someone "work over" an employee suspected of efforts to avoid or
postpone payment by specious excuses-violations of the statute would seem to
be patent. (Arashiro's testimony-which I have credited in this connection-at-
tributes statements of similar tenor to David Naumu, made in Kuhia's presence on
one occasion. Naumu has been identified several times as an assistant business
agent of the Respondent Union; this identification has not been challenged. Upon
the entire record, I find the Respondent Union accountable for his remarks.) In
the Respondent Rutledge's case, credible testimony proffered by Aki, Arashiro, and
various Nilson strikers establishes: (a) numerous references to the Respondent
Union's contractual arrangement with the film corporation as an exclusive referral
agreement; (b) declarations that persons interested in film project referrals for
transportation work would have to become Teamsters members; and (c) advice to
prospective employment applicants that union initiation fees, dues, and weekly
assessments-computed as a percentage of ,wages earned-'would be collected by
the Respondent Union's vice president. Even though the Respondent Union's ar-
rangement with Fox may not have encompassed its recognition as an exclusive
referral `source, Rutledge's representations were certainly reasonably calculated to.
persuade prospective film corporation employees that union referral would be con-
sidered an employment prerequisite. Under such circumstances, his additional an-
nouncement that film project transportation workers would be expected to acquire
and retain Teamsters membership for the duration of their project employment clearly
merits characterization as improper.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The course of conduct attributable to the Respondent Union, Rutledge and Kuhia,
detailed in section III, above-since it developed in connection with the operations,
of Twentieth Century-Fox described in section I, above-had a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and,_
repeated, would tend to lead to labor disputes burdening and obstructing commerce-'
and the free flow of commerce.
630849-62-vol. 134--102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since I have found Respondent Union, Rutledge, and Kuhia, responsible for
unfair labor practices which have not been remedied, it will be recommended that
they cease and desist therefrom and that they take certain affirmative action, which
will include the posting of appropriate notices, designed to effectuate the policies
of the Act, as amended.
Specifically, I have found that Respondent Union, Rutledge, and Kuhia, attempted
to cause and did cause Twentieth Century-Fox to discriminate with respect to the
hire, employment tenure, and working conditions of nine designated employees, to
encourage membership in the Respondent Union and discourage membership in any
other labor organization. Since the film project which provided temporary em-
ployment for these nine people has been completed, conventional recommendations
that the Respondent Union and its representatives transmit written notice to Fox
that prior union objections to the employment of the individuals designated have
been withdrawn would not effectuate statutory policies. It will be recommended,
therefore, that the Respondent Union make whole the nine individuals involved for
any loss of pay or other incidents of the employment relationship which they may
have suffered as a result of the discrimination practiced against them at the instance
of the Respondent Union and its representatives, by the payment to each of a sum of
money equal to the amount which he normally would have earned as a Fox em-
ployee, between the date on which his employment was terminated and October 12,
1957, the date of the film project's completion, less his not earnings during the
period indicated. Crossett Lumber Company, 8 NLRB, 440 497, 498; Republic
Steel Corporation v. N.L.R.B., 311 U.S. 7. The individuals who should be made
whole pursuant to this recommendation include:
Joaquin Amorin Franklin Kelekoma Joseph Nakamura
George Baptista Jacob Merseberg Tarao Nakamura
James Kaneakua Libert Nakaahiki Chai Tin
Pursuant to established Board policy, no recommendation will be made that Re-
spondents Rutledge or Kuhia contribute to the payments required to make the
complainants designated whole, out of their personal resources. Hod Carriers,
Building and Common Laborers Union of America, Local No. 324, AFL-CIO, et al.
(Roy Price Inc.), 121 NLRB 508, footnote 1; Local 420, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL, et al. (J. J. White, Inc.), 111 NLRB 1126, 1127-1128.
Nor will any recommendation be made, either, that they contribute to the reim-
bursement of initiation fees, dues, and weekly assessments unlawfully collected from
various Fox employees, recommended hereinafter to the Respondent Union.
At the outset of his testimonial presentation, the General Counsel's representative
requested permission to adduce evidence relevant to a determination of the wage
losses which these complainants had suffered, allegedly 'as the result of unfair
labor practices. As Trial Examiner, I was also requested to find the facts with
respect to the amount of backpay due each discriminatee-pursuant to the formula
outlined in this report-and to make recommendations that the Respondent Union
make them whole by the payment of specific sums considered essential to effectuate
the statutory objectives. Despite objections vigorously pressed by the Respondent
Union's counsel , I permitted the General Counsel's representative to make his record
with respect to the backpay issue . Throughout the Board's history, evidence relevant
to the determination of backpay issues has usually been excluded from unfair labor
practice hearings, on ,the ground that "such matters should more properly be left for
determination at the compliance stage" of agency cases, when the facts with respect
to such issues may be freely litigated, in the event of disagreements; Mid-South
Manufacturing Company, Inc., 120 NLRB 230, 232; Ekco Products Company (Sta-
Brite Division), 117 NLRB 137 , 166; International Union of Operating Engineers,
Local No. 12, AFL (Associated General Contractors, Southern California Chapter),
1,13 NLRB 655, 662; Armstrong Tire and Rubber Company, Tire Test Fleet Branch,
111 NLRB 708, 709, footnote 3; North East Texas Motor Lines, Inc., ,109 NLRB
1147, 1160; Board policy in this respect has been dictated by its concern for the
efficient administration of the statute. See N.L.R.B. v. Deena Artware, Inc., 361 U.S.
398, 411 (Concurring Opinion). Agency procedure with respect to backpay matters,
however, has not been immutable. Upon occasion, the Board has rested its deter-
mination to defer the resolution of backpay questions in unfair labor practice cases
to the compliance stage because of the record' s incompleteness . Ra-Rich Manu-
facturing Corporation, 120 NLRB 503, 505; United Association of Journeymen &
TEAMSTERS AND ALLIED WORKERS, HAWAII LOCAL 996 1603
Apprentices of Plumbing & Pipefitting Industry of the United States and Canada,
Local 231, AFL-CIO (l. S. Brown-E. F. Olds Plumbing & Heating Corporation),
1-15 NLRB 594, 598, footnote 2; International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL, Local 179 (DePrizio Construc-
tion Company), 110 NLRB 287, 288; Austin Company, 101 NLRB 1257, 1260. On
one occasion, also, the Board refused to consider matters allegedly relevant to the
remedial order which it might enter because, inter alia, the matters involved had
occurred after the close of the hearing in the case. Coca-Cola Bottling Company of
Louisville, Inc., 108 NLRB 490, 494, footnote 23. Ordinarily, the suggestion that
Board consideration be given backpay matters, conjoined with its determination of
substantive unfair labor practice issues, has been made Eby Respondents; these sugges-
tions have been rejected by the Agency of Trial Examiners, sua sponte or pursuant
to the General Counsel's objection, for the reasons indicated. In this case, however,
the General Counsel's representative requested the receipt and consideration of back-
pay evidence. Since the period to be encompassed by any backpay award which the
Agency might make was finite, the General Counsel's suggestion that record evidence
relevant to the disposition of backpay issues could be developed expeditiously, con-
currently with evidence relevant to a determination on the merits, was considered
acceptable. Upon .the record made pursuant to this decision, factual determinations
have been made with respect to the amounts of backpay due each complainant for
whom reimbursement is deemed essential; these will be found in a report appendix.
Reference has been made in this report to the General Counsel's contention that
various Fox transportation workers on the "South Pacific" project were required to
pay initiation fees, dues, and weekly assessments to the Respondent Union, pur-
suant to the provisions of a trade agreement, arrangement, consensus, or employment
practice which exceeded permissible limits. Clearly, this contention-when proven-
would have been relied upon to support a suggestion that union reimbursement of the
money thus collected should be found both appropriate and necessary to expunge the
effects of the unfair labor practices found. Cf. Virginia Electric and Power Com-
pany v. N.L.R.B., 319 U.S. 533, 539; United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the United States and Canada,
Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing & Heating Corporation),
115 NLRB 594, 598. Available evidence, however, has been found insufficient to
establish the negotiation or effectuation of any trade agreement, arrangement, con-
sensus, or employment practice properly subject to administrative interdiction. But
the testimonial record does establish Respondent Union's receipt of initiation fees,
dues, and weekly assessments actually collected through reliance upon coercive repre-
sentations made by the Respondents Rutledge, Kuhia, and other union representa-
tives. In somewhat analogous situations, the Board has frequently held sums,
collected under circumstances which would justify their characterization as exactions,
reimbursable. Eclipse Lumber Co., Inc., supra. In the cited case, the Board ex-
plained its determination as follows:
We have found that the Union engaged in an unfair labor practice within the
meaning of Section 8(b) (1) (A) of the Act, in substance, by warning employees
that they risked discharge under the terms of the union-security contract unless
they paid the Union sums of money in excess of the periodic dues and the initi-
ation fees uniformly required as a condition of achieving membership in good
standing. We further find that the 14 employees involved here were coerced into
making such discriminatory payments by such threats. The General Counsel
urges that these 14 employees be afforded restitution for the excess payments
over and above the periodic dues and the initiation fees uniformly required.
Although these employees may have been legally obligated as a matter of
contract liability or as an incident of membership to pay the back dues and
fines involved, the Union resorted to conduct unlawful under the Act as a means
of collection. We believe that it will effectuate the policies of the Act to remedy
such unfair labor practice by requiring the Union to reimburse the employees,
as urged by the General Counsel, and to cease and desist from such unlawful
conduct in the future.
Parity of reasoning would seem to require similar recommendations in this con-
solidated matter. It has been found that various Kauai residents-without any previ-
ous Teamsters affiliation-paid initiation fees, dues, and weekly assessments to the
Respondent Union by reason of coercive statements attributable to Rutledge, Kuhia,
and Naumu as organization representatives. My recommendation, therefore, will
be that the Respondent Union reimburse all of these Kauai residents, without any
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previous Teamsters affiliation, employed as drivers and special equipment operators
on the "South Pacific" project, for the initiation fees, dues, and weekly assessments
which Kuhia collected from them, under the circumstances indicated. Available
evidence, however, has been found sufficient to justify a conclusion that the Honolulu
drivers and special equipment operators hired for the project had acquired union
membership prior to their film corporation employment; the same appears to have
been true with respect to three Kauai residents-William Fernandes, Samuel Huddy,
and Adam Silva-at least. Nothing in the record will support a conclusion that the
willingness of these employees to continue dues payments to the Respondent Union
was ever coerced. Since the temporary character of project employment appears
to have been generally understood, their payment of dues to retain Teamsters mem-
bership may be readily understood, regardless of their presumptive knowledge with
respect to the coercive and discriminatory treatment accorded fellow transportation
workers without prior union affiliation; whatever the state of their knowledge in that
regard, payment of dues by them directly as a result of coercion, in any event, has
not been established by reliable, probative, and substantial evidence. See N.L.R.B. v.
International Union of Operating Engineers, Little Rock, Local 382-382A, AFL-CIO
(Armco Drainage & Metal Products, Inc.) 279 F. 2d 951 (C.A. 8). Only the weekly
assessments paid by these drivers and special equipment operators, therefore, can
legitimately be considered "excessive payments" coercively exacted from them, over
and above the monthly dues uniformly required to maintain their previously ac-
quired union membership. It will be recommended, therefore, that the Respondent
Union reimburse any Honolulu and Kauai residents, with organization membership
established prior to their film project employment, only for the weekly assessments
collected from them by the Respondent Union's vice president.
In the light of the foregoing findings of fact, and upon the entire record in this
consolidated case, I make the following:
CONCLUSIONS OF LAW
1. Twentieth Century-Fox Film Corporation is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of the Act, as amended.
2. Teamsters and Allied Workers, Hawaii Local 996, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
is a labor organization within the meaning of Section 2(5) of the Act, as amended,
which admits employees of Twentieth Century-Fox Film Corporation to membership.
3. Arthur A. Rutledge, president and business manager of the Respondent Union,
and Harry Kuhia, Jr., vice president, were agents of Teamsters and Allied Workers,
Hawaii Local 996, throughout the period with which this consolidated case is con-
cerned, within the meaning of Section 2(5) and (13) and Section 8(b) of the Act,
as amended.
4. By successful attempts to cause discrimination on the part of Twentieth Century-
Fox Film Corporation against Joaquin Amorin, George Baptista, James Kaneakua,
Franklin Kelekoma, Jacob Merseberg, Libert Nakaahiki, Joseph Nakamura, Tarao
Nakamura, and Chai Tin, in violation of Section 8(a)(3) of the Act, as amended,
Teamsters and Allied Workers, Hawaii Local 996, functioning by and through its
agents, Arthur A. Rutledge and Harry Kuhia, Jr., engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of the Act, as amended.
5. By statements to various employment applicants and employees of Twentieth
Century-Fox Film Corporation that (a) the Respondent Union had been recognized
by that employer as an exclusive source of supply for transportation workers, (b)
membership in the Respondent Union would be considered a condition precedent to
employment and the retention of employment status, and (c) failure to pay designated
initiation fees, monthly dues, and weekly assessments computed as a percentage of
wages earned would be countered with physical violence, denial of employment or
discharge, Teamsters and Allied Workers, Hawaii Local 996, functioning by and
through its agents, Arthur A. Rutledge and Harry Kuhia, Jr., restrained and coerced
employment applicants and employees generally in the exercise of rights statutorily
guaranteed; thereby, the Respondents designated engaged in unfair labor practices
within the meaning of Section 8(b) (1) (A) of the Act, as amended.
6. The unfair labor practices found are unfair labor practices affecting commerce,
within the meaning of Section 2(6) and (7) of the Act, as amended.
[Recommendations omitted from publication.]