The Radio Officers' Union of The Commercial Telegraphers UnionDownload PDFNational Labor Relations Board - Board DecisionsApr 18, 195193 N.L.R.B. 1523 (N.L.R.B. 1951) Copy Citation RADIO OFFICERS' UNION OF COMMERCIAL TELEGRAPHERS UNION 1523 a month. No meetings of Local No. 69 have been held since the forma- tion of Local 312. It does not appear that Local No. 69 contained any members who were not employees of the Employer at the plant herein involved. There are approximately 60 employees in the plant, of whom approxi- mately 50 are in the agreed appropriate unit. As previously noted, 38 members voted at the meeting of November 16, 1950, to disaffiliate from the Intervenor and to affiliate with the Petitioner. We conclude, therefore, that a majority of the members of Local No. 69 voted for such action. Furthermore, it appears that there are at present no officers or members of Local No. 69 and that all employees in the plant are members of the Petitioner. In the light of the foregoing events, and on the basis of the entire record, we find that the identity of the bargaining representative of the Employer's employees has become a matter of such confusion that the relationship between the Employer and the contracting Union can no longer be said to promote stability in industrial relations. As the Board recently stated,3 to treat the contract as a bar in such cir- cumstances would seriously impede rather than encourage the prac- tice of collective bargaining which the Act was designed to foster and protect. We are of the opinion, therefore, that the conflicting claims to representation of the two labor organizations involved can best be resolved by an election.4 4. In accordance with the agreement of the parties, we find that all production and maintenance employees of the Employer at its Mem- phis, Tennessee, sand and gravel plant, excluding office and clerical employees, technical engineers, guards, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 3 Boston Machine Works Company, 89 NLRB 59. 4 Boston Machine Works Company, supra. The Intervenor's motion to dismiss the pro- ceeding is hereby denied. THE RADIO OFFICERS ' UNION OF THE COMMERCIAL TELEGRAPHERS UNION, AFL and WILLARD CHRISTIAN FOWLER. Case No. 2-CB-91: April 18, 1951 Decision and Order On July 24, 1950, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that 93 NLRB No. 249. 1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent had engaged and was engaging in certain unfair labor practices in violation of Section 8 (b) (1) (A) and 8 (b) (2) of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The General Counsel also filed a brief. 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 Inter- mediate Report, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions : 1. We agree with the Trial Examiner's conclusion that the ,Re- spondent unlawfully caused A. H. Bull Steamship Company to dis- criminate against Fowler in regard to his hire as a radio officer. We have carefully considered each of the grounds urged in the Respond- ent's brief for rejection of the Trial Examiner's recommendations, and find them insubstantial. The heart of the defense is the contention that the Respondent's contract with the Company by its terms provides for a hiring hall, and that therefore the Respondent could resist the Company's attempts to hire Fowler by direct negotiations. We are satisfied that the con- tract contains no such provision. It makes no reference to a hiring hall by name, nor does it otherwise provide for hiring through the Union. On the contrary, it expressly reserves to the Company the right freely to select its radio officers. The sole condition of em- ployment imposed by the contract is preference to union members in good standing if such employees are available. The Respondent's assertion that there is a "hiring hall" provision rests primarily upon the fact that the contract requires the Union to grant clearances to union members in good standing. This obliga- tion by the Union follows immediately after the reservation to the Company of the right of free selection and its promise to take ap- propriate measures to assure that newly hired personnel are in good standing with the Union.2 Logic impels the conclusion that these two 1 The Respondent's request for oral argument is hereby denied, as the record, including the exceptions and briefs , adequately sets forth the positions of the parties. z Article I, section 6, of the contract reads as follows : Section 6 The Company shall have the right of free selection of all its Radio Officers and when members of the Union are transferred, promoted, or hired the Company agrees to take appropriate measures to assure that such members are in good standing, and the Union agrees to grant all members of the Union in good standing the necessary "clearance" for the position to which the Radio Officer has been assigned If a member is not in good standing, the Union will so notify the Company in writing. RADIO OFFICERS' UNION OF-COMMERCIALTELEGRAPHERS UNION 1525 obligatory provisions are complementary ; the Company is charged with responsibility to ascertain the good standing of any radio officers it might hire, and the Respondent, best informed as to their union standing, is obligated to certify their status and thereby assure the Company that it has carried out its contractual obligation. That this is the correct import of the clearance provision of the contract, and that such understanding is not, as our dissenting colleague believes, incompatible with the right of free selection by the Company, is defi- nitely established by the last 'clause in the same section 6; it reads, "If an employee is not a member in good standing, the Union will so notify the Company in writing." If, as the Respondent contends, the Company were only permitted to hire employees referred by the Union, there could be no occasion for the Union to advise the Company that any particular employee, referred from the union hall, was not in good standing. This last sentence of section 6 could only refer, then, to the situation where the Company directly hires an employee whom it believes to be in good standing, but who, in the opinion of the Union, is not .s We conclude,-therefore, as did the Trial Examiner, that. the con- tract was clear on its face and did not provide for any hiring hall arrangement. In these circumstances, the Trial Examiner properly excluded evidence relating to the parties' interpretation of its pro- visions and to their hiring practices during the period of its existence.' Assuming, however, that the contract was in any sense ambiguous on its face, evidence as to the understanding of the parties outside the contract would nevertheless be irrelevant to this proceeding. We are here considering a contract urged as a defense to otherwise illegal conduct. As the Board has long held : "In view of the stringent re- quirements of closed-shop provisions, it is not too much to require that the parties thereto express the essentials of such provisions in un- mistakable language." s Where contracts are urged as defenses to otherwise illegal conduct, we perceive no significant differences be- tween construing closed shop and hiring hall clauses. In either case contractual authority to engage in the permissible limited inroad into the protection afforded all employees by Section 7 of the Act must be clear and unambiguous. And the Board has not, as our ' In concluding that the contract permitted the Company to hire employees directly, we do not rely on Article I, section 3, of the agreement , requiring the Company to give the Respondent 24-hour notice before hiring a nonunion employee . We deem this clause compatible with either a hiring hall or a direct hiring arrangement. 4 Western Can Co., 83 NLRB 489. 5Iron Fireman Manufacturing Co, 69 NLRB 19. See, also , Don Juan Co., 79 NLRB 154: "There is no such [ maintenance of membership ] obvious language in this contract, and the interpretation of the parties is not a substitute therefor." 1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dissenting colleague suggests , read hiring hall provisions into contracts where they did not clearly appear." We are equally satisfied that the union security provision which the contract did contain-preferential hiring of members in good stand- ing-cannot serve as a defense in this case. No claim is made that Fowler was suspended in April, the second occasion when the Respond- ent refused to clear him at the Company's request. Like the Trial Examiner , we find that he was also a union member in good standing in February, notwithstanding Respondent Representative Howe's hasty attempt to suspend him in disregard of Fowler's rights under the union bylaws and constitution. It is true that in the absence of the general chairman and of the general committee, Howe was au- thorized to act in their place and stead. It may also be true, as the Respondent asserts, that in February these special provisions of the bylaws were applicable, although the record contains no evidence sup- porting the assertion. However, in no event could Howe's authority exceed that of the general chairman, who in all instances was required by specific provisions of the bylaws to advise Fowler of his offense and to afford him an opportunity to conform with union rules before suspending him.' It is clear that Fowler was not given such oppor- tunity; his purported suspension was therefore ineffectual. As he was a union member in good standing, he was not vulnerable to dis- crimination in his employment under the existing contract. Our authority to look to the union rules to ascertain Fowler's union standing finds precedent in the Board's recent decision in Pressed Steel Car Co., Inc.'s where the Board did not consider itself bound by the union's interpretation of its own rules, but looked to the constitution 6 The following contract clauses were deemed to establish hiring halls , although not so named : National Maritime Union o f America, 82 NLRB 1365 , at page 1375. "The Company agrees that during the period that this agreement is in effect all unlicensed personnel shall be obtained through the offices of the Union." American Radio Association, 82 NLRB 1344 , at page 1355. "All radio officers employed on such vessels shall be chosen from the list of unemployed radio officers on file at the nearest office of the Union." National Maritime Union of America, 78 NLRB 971, at page 973 , "The Union agrees to furnish satisfactory men and the Company agrees that during the period that this agreement is in effect , all replacements shall be hired through the offices of the Union, as vacancies occur " 7 Article 17, Section 1, of the Respondent's bylaws reads as follows : Any member violating the bylaws of the ROU, the CTU constitution, the contracts and agreements held by the ROU, and in any way contributing to the lessening of respect for the laws, rules, contracts, and agreements of the ROU, and the good name of the ROU, shall first be advised by the Officer of the ROU first having knowledge of the foregoing to correct his dereliction, and if such is persisted in and not abated , the membei shall be immediately suspended by the General Chairman and have charges against him as provided in Article 7, Section 3, of these bylaws. 8 89 NLRB 276 Member Murdock dissented on another ground. RADIO OFFICERS' UNION OF COMMERCIAL TELEGRAPHERS UNION 1527 and rules themselves before deciding whether a discharged employee had been in good standing or not.' Nor do we find merit in the Respondent's contention that its con- duct amounted only to a request and was not "cause," for the record clearly establishes that it was Howe's refusal to issue the clearances which, brought about the discrimination against Fowler.- And, `finally, as the' Board has recently held, discrimination aimed at com- pelling obedience to union rules (in this case the job-rotation prin'- ciple) encourages membership in a labor organization no less than dis- crimination designed to combat dual unionism 11 For these reasons, and upon the record as a whole, we find, as did the Trial Examiner, that the Respondent violated Section 8 (b) (2) of the Act, in that it attempted to and did cause H. A. Bull Steamship Company to discrim- inate against Fowler in violation of Section 8, (a) (3) of the Act, and that the Respondent also thereby violated Section 8 (b) (1) (A) thereof. We reject, for the reasons set forth in National Union of Marine Cooks and Stewards, CIO and George C. Quinley, an individ- ual, supra, the Respondent's further contention that no 8 (b) (2) finding can be made because the employer was not joined as a party. 2. In its brief the Respondent asserts that the record requires a find- ing that Fowler incurred a/-wilful loss of earnings after March 2 and after•April 26. As the parties agreed at the hearing that this issue had not been fully litigated, we shall make no determination now on this matter, but instead defer it to 'the compliance stage of this proceeding. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Radio Of- ficers' Union of the Commercial Telegraphers Union, AFL, and its agents, shall : 9 For the following reasons , Member Reynolds, like Member Murdock, does not agree with the majority that because Fowler ' s suspension proceedings allegedly slid not comport with certain procedural requirements of the Respondent ' s internal laws, the Respondent cannot rely on the union security contract to justify its discrimination against Fowler in February In his opinion, since Section 102 of the Act preserves the validity of the instant contract executed prior thereto , action thereunder should be weighed in the light of the Board ' s practice under the Wagner Act of generally refusing to delve into a union's internal affairs . Member Reynolds therefore would not question the validity of the union 's action in depriving Fowler of good standing in February and would limit his finding of discrimination to the Respondent 's failure to clear Fowler in April when his good standing had been restored 19 See National Union of Marine Cooks and Stewards, CIO, and -George C. Quinley, ,an individual, 92 NLRB 877 , and Ambassador Venetian Blind Workers' Union, Local No. 2565 , affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL and Viola Dodd, an idsvidual, 92 NLRB 902 , as distinguished from Denver Building and Construction Trades Council , et al ( Henry Shore ), 90 NLRB 1753. , n American Pipe and Steel Company, 93 NLRB 54. 1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Causing or attempting to cause A. H.'Bull Steamship Company, its successors and assigns, to discriminate against Willard Christian Fowler or any other employee in violation of Section 8 (a) (3) of the Act. (b) Restraining or coercing employees or prospective employees of A. H. Bull Steamship Company, its successors and assigns, in the exercise of their right to refrain from any or all of the concerted activities listed in Section 7 of the Act, except to the extent that such right may be affected by the proviso to Section 8 (b) (1) (A), or by an agreement requiring membership in the Respondent as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Notify A. H. Bull Steamship Company in writing that it with- draws any objection to the employment of Willard Christian Fowler and requests it to offer him immediate employment. (b) Notify Willard Christian Fowler that it has advised A. H. Bull Steamship Company that it withdraws its objection to his employment and requests it to offer him immediate employment. (c) Make whole Willard Christian Fowler in the manner set forth in the Intermediate Report in the section entitled "The remedy." (d) Post at its office in New York City copies of the notice attached hereto and marked Appendix A.- Copies of said notice, to be fur- nished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof and be maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for the Second Region signed copies of the notice attached hereto as Appendix A for posting, the Employer willing, at the office and docks of A. H. Bull Steamship Company, in places where notices to employees are customarily posted; copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed as provided in paragraph 2 (d) above, be forthwith returned to said Regional Director for said posting. (f) Notify the Regional Director for the Second Region in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 12 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "Decision and Order," the words,. "Decree of the United States Court of Appeals Enforcing." RADIO OFFICERS' UNION OF COMMERCIAL TELEGRAPHERS UNION 1529 MEMBER MURDOCK, dissenting : I cannot concur with the conclusions reached by the majority in this .case that the Respondent Union's conduct violated Section 8 (b) (1) (A) and Section 8 (b) (2) of the amended Act. Careful considera- tion of the record, in my opinion, compels the contrary finding that the Respondent was contractually empowered to refuse clearance to complainant Fowler, without violating the Act, and that in any event, Fowler was not a member in good standing of the Respondent at the time of the initial refusal of clearance. The majority of my colleagues and the Trial Examiner found the facts in this case, briefly stated, to be as follows. On February 27, 1948, complainant Fowler was offered a position as radio officer by the Bull Steamship line on its ship, the S. S. Frances. Fowler was, at this time, a member in good standing of the Respondent. In order that a vacancy in the position of radio officer on the Frances might exist, however, it was necessary for the Company to discharge another member of the Respondent who was currently employed in that job. Upon complaint of the displaced member, Howe, the secretary- treasurer of the Respondent thereupon suspended Fowler for "bump- ing" another member and a subsequent request by the Company for clearance of Fowler for the position was denied by the Respondent. The suspension of Fowler was later lifted, but when, on April 26, the Company again offered Fowler employment as a radio officer on its vessel, the S. S. Evelyn, clearance was once more refused by Respond- ent. As a consequence of the refusal to grant the clearances, the posi- tions, in both instances, were filled by other members of the Respond- ent. Admittedly, in both instances, negotiations for employment of Fowler were carried on by the latter and the Company without ref- erence to the Respondent other than the request for clearance The Respondent therefore contends that its actions were in accord with, and protected by, the terms of its contract with the Company and the "hiring hall' operated in conjunction with that agreement. I find the Respondent's argument persuasive. There seems no question that, if the contract between the Respond- ent and the Company during the period concerned herein provided for employment of radio officers only through a union hiring hall, the denial of the clearances by the Respondent was both justified and pro- tected under the terms of the amended Act 13 My disagreement with my colleagues, accordingly, centers upon the question of the existence of a hiring hall provision in that agreement. The record is clear, and indeed the Trial Examiner finds, that the various steamship com- panies, including the Bull line, who were parties to the contract, "generally requested the Respondent to furnish radio officers to fill v Under the provisions of Section 102 of the amended Act, the legality of such a restricted hiring procedure was protected for a stated period. 1530 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD vacancies." Further, "to meet these 'requests, the Respondent main- tained a `shipping list' of its unemployed members in the order of the termination of their last employment" and when a vacancy oc- curred, it was filled by offering the assignment and the requisite clear- ance to members of the Respondent on the shipping list in the order occurring there.14 Despite this clear showing of the existence and operation of a hiring hall, however, the Trial Examiner and the majority opinion contend such an arrangement is without provision in the contract between the parties and is thus unavailable to the Re- spondent as a defense. This conclusion, in direct contradiction of the established facts, is reached in view of a purported lack of a clear hir- ing hall provision in the agreement, the reservation of the right of "free selection" of employees by the companies, and the inclusion of a clause providing for written notice by the Union where a selected member was not in good standing. I cannot agree. The pertinent portions of the contract, as set forth in the Trial Examiner's Report, do not by name refer to the establishment of a hiring hall for the employment of radio officers. To this extent the argument of the majority is well taken. In its previous decisions deal- ing with "hiring halls" in the maritime industry, however, the Board has never made such a condition prerequisite to finding the existence of such systems, and has, indeed, recognized the existence of hiring halls where the contracts did not establish them in name.15 Nor does the reservation of a right of free selection by the companies necessarily controvert the existence of a hiring hall.- While the inclusion, of this clause, as argued by the Trial Examiner and the majority of the Board, conceivably negates the inference that a hiring hall was created by the contract, it is equally interpretable as merely protecting the right of the companies to reject unsuitable applicants for radio officer positions. As the Trial Examiner, at the hearing, excluded oral evidence as to the meaning of this term, among others, as interpreted by the parties, the precise effect of the language cannot be determined. On the other hand, the incontrovertible fact is that such "free selec- tion," considered granted in the contract by my colleagues, was never utilized by the companies to that effect, nor was there any attempt to do so. Its abstract existence is accordingly rebutted by the realities. of the factual situation before us. Furthermore, the requirement of "clearance" by the Respondent, a term the parties clearly indicated to. " While exceptions to this procedure occurred , they were apparently rare and were reluctantly consented to by the Respondent is See footnote 6. supra It should be further noted that in National Mai itime Union of America, 82 NLRB 1365, at 1375, 1376, the Board regarded a contract stating, "The Com- pany agrees that during the period this agreement is in effect all employment, except for the positions set forth in subsection (g), will be given to members of the Union when available in the Deck, Engine, and Steward' s Departments , provided that the prospective- employees are satisfactory to the Company," as contemplating a hiring hall proceduie- 19 See footnote 2, supra. , RADIO OFFICERS' UNION OF COMMERCIAL TELEGRAPHERS UNION 1531 be of special weight, before a free selection of applicants could be effected, is incompatible with the meaning attributed to the latter clause by the majority opinion. Finally, the reasoning of my col- leagues that no occasion for written notice by the Respondent that any- particular employee was not in good standing would arise unless the Company hired radio officers directly, misreads the clause in question 17 Upon the entire record, and in view of the foregoing, I am persuaded and would find that a lawful hiring hall was established by the con- tract in question. Accordingly, as the actions of the Respondent herein were in accord with that contract, I would :dismiss the com- plaint in its entirety. Assuming arguendo, however, the correctness of the majority position that no hiring hall existed in this instance, I believe the record further establishes that the Respondent. was not guilty of infringement of the Act with respect to the refusal of a clearance to complainant Fowler on February 27. While it is agreed that Fowler was suspended by the Respondent's secretary-treasurer on February 27, and was, thus, presumptively not in good standing as required by the contract, these undenied facts are again evaded by the reasoning of the Trial Examiner and the majority opinion. It is contended, in this regard, that the suspension of Fowler by Howe was in derogation of the rights and procedures set forth in the constitu- tion and bylaws of the Respondent. I find this reasoning unsupported by the record as well as without precedent in the Board's decisions. It would seem patent that the sole qualified judge of the good stand- ing of a member of a labor organization is that organization itself acting through its elected officers. I find no cogent reason for this Board to usurp the position of judge in those matters nor has this Board done so in the past.- The Trial Examiner found, and the majority opinion agrees, that the suspension of Fowler by Howe was without authority on the part of Howe and was consummated without iefere'nce to the provision of the Respondent's bylaws for warning to an offender and continuation of the offense. The bylaws, however, clearly authorize the secretary-treasurer, in the absence of the general chairman and the general committee, to take suspension action against "This clause does not refer to hiring alone, but also contemplates action taken in transferring or promoting employees In these instances , it is clear , there would be ample reason for written notice by the Respondent if the recipient of the transfer or promotion was not in good standing. There is, therefore, no reason for assuming that the provision is inconsistent with a hiring hall. Moreover , as the majority opinion admits, the Trial Examiner's conclusion that no occasion for a 24-hour notice to the Respondent before the companies hired nonmembers would arise until, and unless, the companies had first directly and unsuccessfully sought to hire members of the Respondent is clearly erroneous "I cannot agree with my colleagues that the Pressed Steel case, footnote 8, supra, serves as precedent for the action taken herein. In that instance, the provisions of the union constitution examined by the Board had been incorporated by reference into the agreement relied upon as a basis for the discharge. The union determination of "good standing," accordingly , was to that extent, a matter of contract clearly open for examination. 1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U member of the Respondent 19 There is no affirmative showing in this record that these conditions were not met or that there were not repeated warnings to Respondent's members against "bumping" ac- tivities such as engaged upon herein by Fowler. Not only was there a complete lack of protest by Fowler that his rights had been abridged but the record lacks evidence other than mere supposition to show that the Respondent's rules were ignored. In basing their conclusion as to the illegality of the suspension on these grounds, the majority forces this Board into the new and untenable position of becoming the arbiter of proper observance of intraunion procedure. The im- practically of such a policy is self-evident. In the present case, for example, it requires a Board determination as to the type and suffi- ciency of notice contemplated by the Respondent's bylaws-a task we are unqualified to assume and have no proper basis for deciding.2° I do not believe the Act contemplated this Board as becoming an appellate court for adjudication of the minutiae of Robert's Rules of Order, when adopted by a labor organization. Accordingly, as I can find no ground upon which to overturn the conclusion that Fowler was not in good standing at the time his clearance was refused in February 1948, and as good standing was a contractual prerequisite to the granting of a clearance by the Respondent, I would find that Respondent's actions on that date were not in violation of the amended Act. - Appendix A NOTICE To ALL MEMBERS OF THE RADIO OFFICERS' UNION OF THE COMMERCIAL TELEGRAPHERS UNION, AFL, AND TO ALL EMPLOYEES AND PROSPEC- TIVE EMPLOYEES OF THE A. H. BULL STEAMSHIP COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause A. H. BULL STEADI- SH1P COMPANY or its successors and assigns, to discriminate against Willard Christian Fowler or any other employee or prospective employee in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees or prospective em- 19 Article 9, Section 12, of the Respondent 's bylaws provide, in substance, that when the general committee is unable to act, its duties , including that of suspension , devolve upon the general chairman and the general secretary -treasurer . Article 7, Section 7, in turn, authorizes the secretary -treasurer to act as general chairman in the absence of the latter. R0 The ramifications of such extended inquiry into union rules are farflung. It is entirely possible that the Board , in some future case, may be asked , on the, basis of this decision , to determine the existence of a quorum at a particular union meeting or the validity of certain parliamentary procedure. RADIO OFFICERS' UNION OF COMMERCIAL TELEGRAPHERS UNION 1533 ployees of the A. H. BULL STEAMSHIP COMPANY, is suc- cessors or assigns, in their exercise of the right to refrain from any or'all of the concerted activities listed in Section 7 of the Act, except to the extent that such right may be affected by the proviso- in Section 8 (b) (1) (A) of the Act, or by an agreement requir- ing membership in a labor organization as a condition of ernploy- ment, as authorized in Section 8 (a) (3) of the Act. WE WILL notify in writing the A. H. BULL STEAMSHIP COMPANY that we withdraw our objections to the employment by it of Willard Christian Fowler and request it to offer him employment as a radio officer. WE WILL notify Willard Christian Fowler that we have ad- i vised A. H. BULL STEAMSHIP COMPANY that we withdraw our objections to his employment and that we request it to offer him employment as a radio officer. WE WILL make Willard Christian Fowler whole for any loss of pay suffered by him as the result of our having prevented his hire by A. H. BULL STEAMSHIP COMPANY. THE RADIO OFFICERS UNION OF THE COMMERCIAL TELEGRAPHERS UNION, AFL, Union. Dated ----------------------------- By ---------------------- (Representative) (Title) This notice must remain posted for sixty (60) days from the date of posting and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order Mr. Oscar Geltntan, for the General Counsel. Butter and Silverman, by Mr. Abner H. Silverman, of New York, N. Y., for the Respondent. STATEMENT OF THE CASE Upon,a charge filed June 18, 1948, by Willard Christian Fowler, an individual, the General Counsel for the National Labor Relations Board,' by the Regional Director for the Second Region (New York, New York), issued a complaint dated March 2, 1950, alleging that The Radio Officers' Union of the Commercial Telegraphers Union, AFL, herein called the Respondent, had engaged and was engaging in unfair 'labor practices affecting commerce within the meaning of Section 8 (b) (1) (A), Section 8 (b) (2), and Section 2 (6) and (7) of the National Labor Relations Act, as amended,2 herein referred to as the amended Act. Copies of the complaint and the charge were duly served upon the Respondent and Willard Christian Fowler. With respect to the unfair labor practices, the complaint as amended at the hearing, alleges in substance: (1) that the Respondent is a labor organization i The General Counsel and the staff attorney appearing for him at the hearing are heiein referred to as the General Counsel ; the National Labor Relations Board is referred to as the Board 161 Stat. 136. 1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the meaning of the amended Act; (2) that , in violation of Section 8 (b) (2) of the amended Act, the Respondent on or about February 27, 1948, and also April 26, 1948, caused and/or attempted to cause the A. H. Bull Steamship Company ( herein called the Company ), to discriminate against Fowler , a pros- pective employee, in regard to hire or tenure of employment and other terms or conditions of employment , by demanding and requiring that the Company withdraw offers- of employment which it had made to Fowler and by demanding and requiring that Fowler be refused employment by the Company ; and (3) that, by these acts, the Respondent , in violation of Section 8 (b) (1) (A) of the amended Act, also restrained and coerced employees or prospective employ- ees of the Company in the exercise of the rights guaranteed by the amended Act. The Respondent filed an answer in which it denied the commission of the unfair labor practices alleged in the complaint , and, upon the amendment of the complaint at the hearing , amended its answer to deny the allegations of the amended complaint concerning the unfair labor practices. Pursuant to notice , a hearing was held in New York City on April 3, 10, and 11, 1950 , before the undersigned Trial Examiner duly designated by the Chief Trial Examiner . The General Counsel and the Respondent participated in the hearing and were afforded full opportunity to be heard , to examine and cross-examine witnesses , and to introduce evidence bearing upon the issues. On the first day of the hearing and before any evidence was received, the undersigned granted a motion made by the General Counsel and opposed by the Respondent , to amend the complaint , which alleged the Respondent's com- mission of unfair labor practices on April 26 , 1948 , by adding allegations that the Respondent had also committed similar unfair labor practices on February 27, 1948 3 The undersigned thereupon also denied a motion made by the Re- spondent and opposed by the General Counsel , for "a few weeks" adjournment. However, upon the renewal of this motion by the Respondent at the close of the first day of the hearing (April 3), during which Fowler was the only witness , the undersigned granted a recess until April 10, 1950 The hearing was accordingly resumed on April 10 with further cross-examination of Fowler by counsel for the Respondent. At the conclusion of the General Counsel 's case, the undersigned denied the Respondent ' s motion to dismiss the complaint on the ground that the evidence failed to sustain the allegations of the complaint . At the conclusion of the hearing, the Respondent renewed its motion to dismiss the complaint and the undersigned reserved decision. The motion is now disposed of in accordance with the considerations hereinafter set forth. Before the hearing was closed, the General Counsel and the Respondent orally presented argument upon the issues . Since that time, the undersigned has received a brief from each of them. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY A. H. Bull Steamship Company, a New Jersey corporation with its principal office in New York City, is engaged in the operation of its own and chartered vessels for the water-carrier of cargo between States of the United States and 3 The charge had included the alleged unfair labor practices on February 27 as well as those on April 26 Notice of the motion to amend the complaint had been served on the Respondent on March 31, 1950. RADIO OFFICERS ' UNION OF COMMERCIAL TELEGRAPHERS UNION 1535 between the United States and foreign countries In 1948 and 1949, it operated an average of 23 vessels, and in each of these years it transported articles and commodities of a value of more than $5,000,000, in interstate and foreign commerce. The undersigned finds that the Company is engaged in commerce within the meaning of the amended Act. II. THE RESPONDENT The Radio Officers' Union of the Commercial Telegraphers Union, AFL, is a labor organization within the meaning of Section 2 (5) of the amended Act. III. THE UNFAIR LABOR PRACTICES A. The contract and the general practices in connection with hiring On January 11, 1947, the Respondent and various steamship companies, in- cluding the A. H. Bull Steamship Company (herein called the Company), entered into a "Standard Dry Cargo and Passenger Ship Agreement" covering the com- panies' radio officers. It is undisputed that on this date, and also on August 16, 1947, the Respondent was designated as bargaining representative by a majority of the Company's radio officers, who constituted an appropriate unit for the purposes of collective bargaining. On August 16, 1947, the Respondent and the Company executed an agreement by which they extended the term of the general contract until August 15, 1948. Among other things, the contract as thus extended, provided : a Article I-Employment Section 1. The Company agrees when vacancies occur necessitating the employment of Radio Officers, to select such Radio Officers who are members of the Union in good standing, when available, on vessels covered by this Agreement, provided such members are in the opinion of the Company qualified to fill such vacanies. * Section 3. When a member of the Union in good standing qualified to fill the vacancy is not available, the Company will notify the Union twenty-four (24) hours in advance before a non-member of the Union is hired, and give the Union an opportunity to furnish without causing a delay in the sched- uled departure of the vessel a competent and reliable Radio Officer with the license necessary for the position to be filled. * * * * Section 6. The Company shall have the right of free selection of all its Radio Officers and when members of the Union are transferred, promoted, or hired the Company agrees to take appropriate measures to assure that such members are in good standing, and the Union agrees to rant all members of the Union in good standing the necessary "clearance" for the position to which the Radio Officer has been assigned. If a member is not in good standing, the Union will so notify the Company in writing. Although the contract contained no reference to a hiring-hall arrangement, the companies generally requested the Respondent to furnish radio officers to fill vacancies. To meet these requests, the Respondent maintained a "shipping list" of its unemployed members in the order of the termination of their last 1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment. When a request for a radio officer was received from a company, the Respondent offered the assignment and requisite clearance to those of its unemployed members who were waiting for assignments in the Respondent's office, in the order in which their names appeared on the "shipping list." If a company's request were made appreciably in advance of the time the berth was to be filled, the Respondent through its secretary-treasurer might advise an unemployed member who was high on the list to appear at the Respondent's office when the assignment was to be made. Otherwise, the assignments and clearances were given without previous announcement, to the longest unemployed member who happened to be in the Respondent's office waiting for a job. While this appears to have been the general practice, Fred Howe, the Re- spondent's secretary-treasurer, testified that on some few occasions, companies have asked that particular radio officers be assigned to them. In some of these instances, the Respondent refused the requests ; in other instances, the Re- spondent honored the requests although, as Howe put it, "Some of the members don't think too much of that system." B. The February incident The claimant, Willard Christian Fowler, became a member of the Respondent on July 1, 1942, and continued to be a member throughout the events in February and April 1948, upon which the present case is based. From July 30, 1943, until January 2, 1948, he was continuously employed by the Company on three different ships. When he signed off the third ship on January 2, 1948, at New York City, the Company's headquarters, he returned to his home in Miami, Florida. On December 29, 1947, Alexander Kozel, another member of the Respondent, was hired by the Company at New Orleans as radio officer on the S. S. Frances, to replace Radio Officer Lopez, who had fallen ill while the ship was in that port. On February 24, 1948, after the Frances had reached New York City at the end of its voyage, Robert H. Frey, the Company's radio supervisor, told Kozel that, although his services had been satisfactory, he was to be replaced by "a man with senior service in the company." On the same day, February 24, 1948, Frey telegraphed Fowler in Miami to "Proceed New York as soon as possible for position SS Frances" After veri- tying this offer by a long distance telephone call to Frey, Fowler came to New York City by airplane on Wednesday, February 25. On Thursday, February 26, Fowler went to the Respondent's New York City office to pick up his mail. Although he then saw Secretary Howe of the Respond- ent, he did not speak to him since Howe was busy. From the Respondent's office, Fowler went to the S. S. Frances at its berth in Brooklyn where he met Kozel on the ship He told Kozel that he was `'supposed to take the ship," as its radio officer, but in answer to Kozel's question, admitted that he did not have a clearance from the Respondent Kozel replied, "Well, I am just packing my bags But what does the Union say about it?" Explaining that he had not known that there was a radio officer on the ship, Fowler suggested that Kozel stay aboard, adding, "We will just wait until to- morrow and let you straighten it out with the Union. If you are going to.stay on the ship, there is no sense in me sticking around. I will just forget about it." Fowler accordingly left the ship and went back to his hotel. On the following day, Friday, February 27, Fowler returned to the ship. Kozel had left with his baggage, and Fowler stayed on the ship, cleaning and checking up on spare parts. In the meantime, Kozel visited Secretary Howe of the Respondent and reported what had happened. At about 3 o'clock on Friday, Howe sent a telegram to RADIO OFFICERS' UNION OF COMMERCIAL TELEGRAPHERS UNION 1537 Fowler on board the,Fhances and another telegram to Vice-president Kiggins of the Company. In his telegram to Fowler, Howe said : You are hereby suspended from membership in the Radio Officers Union on grounds that you neglected to obtain clearance for your present job, also- for depriving another member of his job stop Local Office of Seafarers Inter- national Union and Harry Lundeberg being notified of this action You may be reinstated to membership by complying with rules of this Union. Howe's telegram to Vice-president Kiggins of the Company was the following: This is to inform you that Willard C. Fowler is not in good standing in this organization on grounds that forcing another member out of employment is strictly against Union bylaws stop I again quote provisions of our agreement requiring a clearance for all such job (sic) Seafarers International Union local office and Harry Lundeberg being notified In justification of Howe's power as the Respondent's secretary-treasurer to suspend Fowler's membership by sending him this telegram, counsel for the Respondent points to the provisions of the Respondent's bylaws which authorize the Respondent's secretary-treasurer to act as General Chairman in all absences of the latter,' and which thus entrusts to the secretary-treasurer the following specific powers and duties of the General Chairman in connection with suspensions. from membership : (1) Article 7, Sec 1-to "see that the Construction of the [Commercial Telegraphers' Union], the by-laws, contracts and agreements of the [Re- spondent] are strictly enforced and adhered to, and . . . [to] call to account any officer or member violating these laws, contracts or agreements." (2) Article 7, Sec. 3-"with the consent of the General Committee, [to] suspend immediately any officer or member of the [Respondent], whose activities are such that the reputation and best interests of the [Respondent] are endangered, but such suspensions shall not deprive the officer or member of his rights as a member The basis of such suspension shall, within thirty days, be prepared in the form of charges and served on the accused . . and the General Committee shall hear such charges as provided in Article 9,. Section 4 of these by-laws." (3) Article 7, Sec. 6-To "interpret the by-laws of the [Respondent], and the [Commercial Telegraphers' Union's] Constitution on behalf of the [Re- spondent] with final decision resting with the International President of the [Commercial Telegraphers' Union]." (4) Article 17, Sec. 1-"Any member violating the by-laws of the [Re- spondent], the [Commercial Telegraphers' Union's] Constitution, the con- tracts and agreements held by the [Respondent], and in any way contribut- ing to the lessening of respect for the laws, rules, contracts, and agreements- of the [Respondent], and the good name of the [Respondent], shall first be advised by the Officer of the [Respondent] first having knowledge of the foregoing to correct his dereliction, and if such is persisted in and not abated, the member shall be immediately suspended by the General Chairman and have charges against him as provided in Article 7, Section 3 of these by-laws." Upon receiving Howe's telegram, Fowler telephoned the Company' s office late- on Friday afternoon, and since Frey was not there, left word that Frey was to- call him. As a result, Frey visited Fowler on the ship on Saturday morning,- 4 Article 7, Sec. 7. 943732-51-98 1538 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 28, and Fowler showed him the telegram from Howe. At Frey's request Fowler showed him his card from the Respondent which indicated that his dues were paid up. He also told Frey that Kozel had left the ship, but added, "If there is going to be any trouble over this, I will just return to Miami." All of the findings of fact up to this point have been made upon uncontradicted ,evidence. It is also undisputed that neither Fowler nor Kozel thereafter served ,as the radio officer on the Frances, but that the berth was given to another member of the Respondent by the name of Miller on a "clearance" issued by Howe on Tuesday, March 2. How this came about, however,'is a matter of dis- pute, for there are conflicts in the testimony as to relevant conversations between Howe and Frey and between Howe and Fowler, which occurred after Howe had dispatched the telegrams to Fowler and the Company on Friday, February 27, and before the Company accepted Miller as the radio officer for the Frances on Tuesday, March 2. Frey testified that he had Iwo telephone conversations with Howe, the first .on a call from Howe late Friday afternoon in which Howe accused him of "trying to run I his] own union" by replacing Kozel with Fowler, and the second on a call made by Frey to Howe on Saturday afternoon, in which Frey asked for a "clearance" for Fowler on the Frances since Kozel had left the ship and upon Howe's refusal, then said to Howe, "Very well. Send me another man " Howe denied that he had any conversations with Frey in this matter or that he was asked by anybody for a "clearance" for Fowler. He testified that on Friday afternoon, February 27, he did receive a call from Williams, the Com- pany's Captain of the Port, who upon being informed by Howe that Frey and Fowler were trying to "bump" Kozel, asked Howe to hold the matter in abeyance until Monday. According to Howe's testimony, he received a telephone call on Monday from either Captain Williams or Company Vice-president Kiggins telling him "to go ahead and fill the job " It was upon this request, according to Howe, that he gave the clearance for the job to Miller on Tuesday, March 2 Fowler and Howe both testified concerning two conversations between them, the first on a telephone call from Fowler to Howe. and the second in Howe's office. Howe testified, however, that both of these conversations took place on Friday afternoon, February 27, after Fowler's receipt of Howe's telegram, while Fowler testified that he made the telephone call on Saturday afternoon, and the visit to Howe's office on the following Monday morning, March 1. Howe testified that in the telephone call, Fowler asked to see him and that in the resulting conversation in his office a short time later, Fowler told him that he wanted to work for the Bull Line, and that Howe then said there was no objection to Fowler's working for the Bull Line, but that there was no vacancy on a Bull Line ship "at the moment" since "Kozel [was] on the ship," and that neither Fowler nor anyone else would be allowed to "bump a man." Howe further testified that in this conversation, Fowler agreed with Howe's argument that jobs with other steamship lines were equally acceptable but finally said that he would return to his home in Miami without taking any job According to Howe, he then lifted Fowler's suspension, and, since lie did not see or hear from Fowler again, he assumed that he had gone back to Miami. Fowler, on the other hand, testified that in his telephone call to Howe, which he says was made on Saturday morning, he asked Howe for a "clearance" for the Frances, and that Howe said he would not be given any clearances in the future for the Frances or for any other ship of the Company because he had tried to steal jobs from other members of the Respondent. Fowler further testified that in his conversation with Howe in the latter's office on Monday, RADIO OFFICERS' UNION OF COMMERCIAL TELEGRAPHERS UNION 1539 March 1, Howe berated him for "trying to break the union" by going to the Prances without first getting a "clearance," and by thus knocking another member out of a job; that Howe told him that, "as far as the Bull Line is con- cerned, you are through" ; and that Howe finally suggested that Fowler, "to straighten [himself] out," might take other available jobs, whereupon Fowler replied, "Well, there has been a big misunderstanding and I seem to be right in the middle of it. In that case, I will go back to Miami and forget about the whole thing." According to Fowler, however, he told Howe of his intention to stay on the Frances that night and then to leave for home in "a couple of days." Fowler did stay on the Frances that night and consequently met Miller when he reported at the ship the next morning Fowler testified, and Howe denied, that Fowler telephoned a protest to Howe the same morning because, as he testified he told Howe, Miller had a license which was only a month old,' and that Howe retorted to Fowler "that is no concern of yours so just forget about it." The undersigned credits the testimony of Frey and Fowler as to their con- versations with Howe and finds specifically (1) that on Saturday afternoon, February 28, Frey in a telephone call to Howe, asked Howe for a clearance for Fowler on the Frances since Kozel had left the ship ; (2) that Howe refused the clearance and that Frey then asked that another man be sent to fill the job; and (3) that, in a telephone conversation on Saturday, February 28, and again in a conversation in Howe's office on Monday. March 1, Howe told Fowler that he would-not be given clearances for the Company's ships because he had tried to "bump" a fellow member and had sought a job directly from the Company without first getting a clearance from the Respondent. C. The Apr il incident In a letter dated March 25, 1948, Secretary Howe acknowledged receipt of Fowler's payment of dues for the second quarter of 1948 In the course of the letter, Howe told Fowler : Your name is on the waiting list here for jobs and we shall be pleased to offer you the best we have I am sure you will enjoy and benefit by a change of companies Your name will be sufficiently high on the list so that you can obtain a good assignment without waiting for mole than a day or two, and this only so you may select the type of ship you desire On Thursday, April 22, Fowler returned to New York City and on the following ,day he telephoned to Frey and told him that he was back in town. Frey said that Fowler should keep in touch with him and that something might turn up in the next few days. Fowler testified that he visited Howe at the Respondent's office on Saturday, April 24; that he told Howe he had come to New York in accordance with Howe's letter of March 25; that, although Fowler made no mention of the possibility of getting a job with the Company, Howe said, "We have plenty of jobs available for you but it still stands as far as the Bull Line is concerned ; you will be given no -clearance for any Bull Line ship"; that Fowler insisted that there was nothing in the Respondent's constitution or bylaws which deprived him of a choice of ship or employer ; that Howe replied that that was so "as far as any other company is concerned ; but you will be given no clearance for any ships of the Bull Line" ; that Howe also said, "Frey has been talking too much to you down there and 5It appears from the record that Fowler was mistaken as to this, since Miller' s license had been renewed a month before. 1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD making a company stiff out of you. I am going to break it up right here and now. All the old Bull Line stiffs will not be given any clearance at any future time" ; that Fowler told Howe he would be back to the Respondent's office early the• following week ; and that, before Fowler left the office, Howe called his assistant, Joseph Glynn, into the conversation and said, "I want you to witness the fact that I am offering Mr. Fowler a job." Glynn and Howe denied that they saw Fowler on this occasion or had the conversation just outlined Howe denied that he saw Fowler at any time during April. The undersigned, however, credits Fowler's testimony and finds specifically that on Saturday, April 24, Howe told Fowler that there were plenty of jobs available for Fowler but that he would receive no clearance for a job on any ship of the Company. On Monday morning, April 26, Fowler reported at the Respondent's office and bid for, and received, a clearance from Glynn for a job as radio officer on the S. S. Raphael Semmes of the Waterman Steamship Lines. He told Glynn, how- ever, ,that he would take a look at the ship. When he did so that morning, he decided not to take the berth. On the same morning, Monday, April 26, Frey called the Respondent's office by telephone and spoke with Glynn. Frey testified that he asked Glynn whether Fowler was at the Respondent's office or, if not, where he could reach Fowler because he wanted to get a clearance for him as radio officer on the Company's S S. Evelyn; that Glyiin replied that "he would see"; and that this was the full conversation between them. Glynn testified that Frey asked, "Have you seen Fowler around?" and that, upon Glynn's telling him that Fowler had just left for an assignment to a Waterman Lines ship, Frey said, "Oh, I see. Thank you, very much," and hung up. The undersigned credits Frey's testimony concerning thin conversation. At about noon of the same day, after Fowler had visited the Raphael Semmes, and decided not to take the' berth on that ship, he went to the Company's office and saw Frey, who told him that he had a job for Fowler on the S. S Evelyn if Fowler could get a clearance from the Respondent. After leaving Frey's office, Fowler telephoned to Howe Fowler testified that, by mistake, he addressed Howe as "Mr Frey" ; that Howe said, "You are getting your wires crossed. Fowler. what are you doing at the God damn Bull Line?"; that, upon this unexpected tern to the conversation, Fowler never did tell Howe of Frey's specific job-offer; but that, in an ensuing argument as to whether Fowler was trying to "steal Jobs" from other members of the Respondent, Howe said, "As far as I am concerned, you are through," and suggested that Fowler join a rival telegraahers' union in an attempt to get a job. Howe denied that this was the conversation He testified that Fowler told him that he would like to work for the Bull Line and that Howe replied, "How are you going to work for the Bull Line when I don't have any Bull Line ships today?" The under- signed credits Fowler's testimony concerning this conversation. Frey testified that late on the same day, Monday, April 26, he had a telephone conversation with Howe, but that he could not recall whether he called Howe or Howe called him as a result of Frey's morning conversation with Glynn. In either event, according to Frey, Howe told him that he would not give Fowler a clearance for the Evelyn or for any other ship of the Company, whereupon Frey asked Howe to assign another man Glynn testified that he received a telephoned request on Tuesday, April 27, from either Frey or Captain Williams for the assignment of a man to the Evelyn and that no mention was made of Fowler. Howe testified that he himself received no request for an assignment to the Evelyn, that he knew of the vacancy only through Glynn's report to him,. RADIO OFFICERS' UNION OF COMMERCIAL TELEGRAPHERS UNION 1541 and that he issued a clearance to a radio officer by the name of Paese on the morning of April 27 The undersigned, however, credits the testimony of Frey that he asked Howe oon Monday, April 26, for a clearance for Fowler for the Evelyn and that Howe then told him that I he Respondent would not clear Fowler for the Evelyn or for any other ship of the Company. After Howe had thus rejected Frey's request, Fowler called Frey and told him that he could not get a clearance for any of the Company's ships. Frey said he was sorry but that he could not give Fowler the job without an official clearance from the Respondent. D. Conclusions 1. Summary of the facts The material facts already found are relatively few but a brief review of their salient elements will afford a clearer view of the problems they present. On August 16, 1947, the Company and the Respondent agreed in writing to ,extend for the period of a year, their existing contract which reserved to the Company "the right of free selection of all its Radio Officers," but also provided for the preferential hiring of members of the Respondent in good standing and for the Respondent's granting all "necessary `clearances' " to all its members in such standing. Although at times the Respondent honored requests of steamship companies for clearance for the hire of specific members of the Respondent, it did so reluctantly, preferring to have the companies notify the Respondent merely of their needs, as most of them did, and to permit the Respondent to select and assign its members to the jobs in the order of their length of unem- ployment. This "hiring hall" practice, which was generally followed and which the Respondent favored, was not referred to in its contract with the Company. On February 24, 1948, and again on April 26, 1948, at which times Fowler was a member of the Respondent in good standing, the Company offered Fowler directly, and Fowler accepted, a job as radio officer on one of the Company's ships, without first informing the Respondent or requesting a clearance. Learning of the February arrangements from Kozel, a member of the Respondent, whom Fowler was to replace, Secretary-Treasurer Howe of the Respondent sent tele- grams to Fowler and the Company on February 27, notifying them in substance that Fowler had been suspended from membership for violation of the Respond- ent's rules in neglecting to obtain the clearance necessary under the contract, and in depriving another member of his job. No steps to suspend or expel Fowler from membership were taken in the April incident. During both the February and April incidents, however, Howe, as agent for the Respondent, refused specific ;requests of the Company on February 28'and April 26, 1948, respectively, for clear- ances of Fowler, which would have permitted the Company to hire him in .accordance with their direct arrangements. As a result, the Company did not hire Fowler, and the jobs were filled by the Respondent's assignment of other members. - 2. The violation of Section 8 (b) (1) (A) of the amended Act Under the Respondent's contract with the Company, the Company was obli- gated to hire only members of the Respondent in good standing whenever they were available, and the Respondent, in turn, was required "to grant all mem- bers in good standing the necessary `clearance' for the position to which the Radio Officer has been assigned." In view of these provisions and upon the other 1542 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD- evidence in the case, the undersigned finds that, by refusing the Company's re- quests for the necessary clearances for Fowler on February 28 and April 26, 1948, the Respondent prevented, and intended to prevent, the Company's hire- of Fowler (1) because it disapproved the selection and direct hire of radio officers by steamship companies and was seeking to establish instead as the exclusive- method of hire, the practice under which the companies permitted the Respondent tc select and assign its members to jobs in the order of their length of unem- ployment; and (2) because, in the February incident, Fowler's hire by the- Company would have displaced Kozel, another member of the Respondent whose- services had been admittedly satisfactory to the Company. The undersigned finds that the Respondent thus blocked Fowler's employment by the Company in order to enforce against him as one of its members, the rules of fair dealing between its members which it had prescribed for their mutual benefit. Briefly stated, these rules required the Respondent's members to look to the Respondent rather than to the companies for job assignments, and to abstain from seeking or entertaining offers of jobs directly from the companies, par- ticularly when their acceptance would result in the "bumping" of fellow members. In their general, common observance of these rules, the Respondent's members have undoubtedly engaged in a form of "concerted activity" for their "mutual-' aid or protection," which has been protected both by Section 7 of the original National Labor Relations Act (herein referred to as the Wagner Act), and by Section 7 of the amended Act, which became effective on August 23, 1947.6 How- ever, under the Board's interpretation' of Section 7 of the Wagner Act and under the express language of Section 7 of the amended Act, applicants for employ- ment like Fowler,' as well as employees, have also been protected in the right to refrain from such concerted activities except to the extent that the right to refrain may be affected either by a lawful agreement between an employer and a labor organization requiring membership in the labor organization as a condition of employment, or by the proviso to Section 8 (b) (1) (A) of the amended Act which preserves "the right of a labor organization to prescribe its own rules-with respect to the acquisition or retention of membership therein."' Therefore, unless justification for its action be found either in the Respondent's contract with the Company or in this statutory proviso, the Respondent by pre- venting Fowler's hire by the Company, improperly restrained and coerced him in the exercise of a right to refrain from the concerted activities of his fellow union members. The General Counsel and the Respondent agree, and the undersigned finds, that the already-quoted provisions of this contract for the preferential hiring of members of the Respondent were valid under the proviso to Section 8 (3) of the Wagner Act and that, having been extended for a year by the parties before the effective date of the amended Act, their legality and effectiveness were pre- The following, full provisions of Section 7 of the amended Act changed Section 7 of the Wagner Act only by adding the language which is italicized : Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such acti,wties except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3) 7 Colonic Fibre Company, 71 NLRB 354, 355-356, enf'd 163 F. 2d 65 (C A 2). A similar view was expressed by Senator Taft in the debates preceding the passage of the amended Act. 93 Cong. Rec. 7000. 8-The rights guaranteed to employees extend also to applicants for employment. Phelps Dodge Corporation v. N. L. R. B, 313 U. S. 177. RADIO OFFICERS' UNION OF COMMERCIAL TELEGRAPHERS UNION 1543' served for that period by the savings clause in Section 102 of the amended Act ° The contract unquestionably made "membership in good standing" a condition' of employment by the Company whenever members of the Respondent were- available for hire If, therefore, Secretary-Treasurer Howe's purported "sus- pension" of Fowler's membership on February 27 were effective under the Re- spondent's bylaws, Fowler would not have been a member in good standing, and the Respondent would have been justified under the contract in refusing the- Company's request for a clearance for him during the February incident. The undersigned, however, agrees with the General Counsel that Howe's action did riot constitute a valid suspension of Fowler's membership under the Respondent's pertinent bylaws, which have already been quoted. For, according to Article 7, Section 3 of these bylaws, immediate suspension from membership may be effected by the secretary-treasurer or the general chairman only with the consent of the General Committee, which was lacking in the present case And, according to Article 17, Section 1, suspension without the consent-of the General. Committee may be ordered only after warning to the rule-offender and a continu- ation by him of his infraction. These elements, too, were absent in the present case. The undersigned concludes that Fowler was not validly suspended from membership and that the Respondent was therefore not justified by the contract in refusing him a clearance in February on the ground that he was not then a member of the Respondent in good standing Nor can there be found in the contract any other basis for justifying the Respondent's refusal to grant Fowler clearances in either the February or the April incident, when Fowler was admittedly a member in good standing. On_ the contrary, the contract required the Respondent to issue these clearances.- For it expressly provided that the Company was to have "the right of free selec- tion of all its Radio Officers," and that the Respondent was "to grant all members- in good standing the necessary `clearance' for the position to which the Radio Officer has been assigned." Furthermore, the Respondent's refusals to issues clearances-for Fowler were based upon his violation of its rules against "bumping" and direct hire by steam- ship companies, whereas the contract made "membership in good standing" the- only condition of employment by the Company. That the contract did not also condition hire upon selection and assignment by the Respondent is made clear not only by its reservation to the Company of "the right of free selection," but, also by its provision '0 requiring the Company to give the Respondent 24 hours' notice of the unavailability of members before hiring a nonmember. No occasion for such a notice would arise until, and unless, the Company had first directly and. unsuccessfully sought to hire members of the Respondent. o Section 102 reads : . . . the provisions of section 8 (a) (3) and section 8 (b) (2) of the National Labor Relations Act as amended by this title shall not make an unfair labor practice the performance of any obligation under a collective-baigaining agreement entered into prior to the date of the enactment of this Act , or (sn the case of an agreement for a period of not more than one year ) entered into on or after such date of enactment,- but prior to the effective date of this title, if the performance of such obligation would not have constituted an unfair labor practice under section 8 (3) of the National Labor Relations Act prior to the ef fective date of this title, unless such, agreement was renewed or extended subsequent thereto. (Emphasis supplied See Public Service Company of Colorado, 89 NLRB 418 ; Daniel Hamm Drayage Company,. Inc., 84 NLRB 458. 1 0 Article I, Section 3, quoted above at p 1535. 1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon these circumstances, the undersigned finds that the contract required the Respondent to issue clearances for Fowler as a member in good standing. Certainly it imposed no obligation upon the Company to hire through the Re- spondent or to permit the Respondent to select its radio officers from among the Respondent's members in accordance with any rule that the Respondent deemed fair as between its competing members Nor did it create any restriction upon the normal right of the Respondent's members to seek or accept employment directly from the Company. On the contrary, this restriction, which the Re- spondent enforced against Fowler by withholding clearances for him in the pres- ent case, was incompatible with the contractually recognized rights of direct hue and acceptance of the Company and the members for whom the Respondent made the contract. It was therefore clearly a rule independently established by the Respondent for the governance of its members, and entirely without sanction or support from the contract The undersigned therefore concludes that the Respondent was not justified by the contract in refusing clearances for Fowler on February 28 and April 26, 1948, because of his violation of the Respondent's ,restrictive rules. Finally, the undersigned is of the opinion that the Respondent 's refusals of clearance for Fowler were not protected by the preservation in the proviso to Section 8 (b) (1) (A) of the amended Act, of "the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of member- ship therein." This proviso permits a union to enforce whatever rules it may prescribe and thus, incidentally, to require the participation of its members in particular concerted activities, only to the extent that penalties for infractions of the rules may affect "acquisition or i etention of membership" It does not, however, reserve to a union the right to enforce its rules concerning the concerted activities of its members by causing an employer to-refuse to hire or to discharge hn'of hiding member; as'the Respondent did in the present case -Upon the foregoing considerations, the undersigned concludes (1) that, in pre- venting Fowler's hire by the Company on February 28 and April 26, 1948, because -of his acceptance of direct offers of employment in violation of the Respondent's rules, the Respondent caused the Company to withdraw its offers , and Fowler to lose the employment; (2) that the Respondent thereby penalized Fowler for his refusal to engage in the concerted activities which the Respondent had pre- scribed for its members; (3) that neither the contract between the Respondent and the Company nor the proviso to Section 8 (b) (1) (A) of the amended Act justified this conduct of the Respondent; and (4) that the Respondent, in viola- tion of Section 8 (b) (1) (A) of the amended Act, thereby restrained and coerced the Company's employees and prospective employees (including Fowler) in the exercise of their right under Section 7 of the amended Act to refrain from engaging in the concerted activities prescribed by the Respondent's rules. 3. The violation of Section 8 (b) (2) of the amended Act There remains for consideration the question of whether, as the complaint :alleges, the Respondent violated Section. 8 (b) (2) as well as Section 8 (b) (1) (A) of the amended Act. The portion of Section 8 (b) (2) upon which the General Counsel relies makes .it an unfair labor practice for a labor organization- To cause or attempt to cause an employer to discriminate against an employee in violation of [section 8 (a) (3) ] . . . Section 8 (a) (3) of the amended Act, to which reference is thus made in 'Section 8 (b) (2), makes it an unfair labor practice for an employer- RADIO OFFICERS' UNION OF COMMERCIAL TELEGRAPHERS UNION 1545 By discrimination in regard to hire or tenure of employment or any term, or condition of employment to encourage or discourage membership in any labor organization . . ." (Emphasis supplied.) . The undersigned has already found that, by refusing the Company's requests for clearances for Fowler on February 28 and April 26, 1948, the Respondent caused the Company to withdraw its offers of employment which it had made to Fowler. The General Counsel contends that the Respondent, in violation of Section 8 (b) (2) of the amended Act, thereby caused the Company, as an employer, to violate Section 8 (a) (3) of the amended Act, by discriminating against Fowler as a prospective employee, in regard to his hire, tenure, and conditions of employment, thereby encouraging membership in the Respondent- labor organization. The Respondent, however, argues that the "discrimination" forbidden by both the Wagner Act and the amended Act is discrimination based upon membership or nonmembership in a particular union ; that no such dis- crimination appears in the present case; and that, in any event, the acts of the Respondent and the Company adversely affecting Fowler cannot be regarded` as encouraging membership in the Respondent, since Fowler was one of its members. Contrary to the first two of these arguments of the Respondent, neither the Wagner Act nor the amended Act limited its prohibitions to discrimination based upon membership or nonmembership in a union. The discriminating forbidden was, and is, discrimination "to encourage or discourage membership in any labor organization." Thus, any discrimination in regard to hire, tenure, or the terms or conditions of employment, whether based on membership, nonmembership, or any other ground, is prohibited if it has the effect of encouraging or dis- couraging membership in a labor organization. That the Respondent caused the Company to discriminate against Fowler in! regard to his hire is clear. Although the discrimination was not based upon Fowler's membership or nonmembership in any labor organization, it was dis- crimination against him because he, unlike other members of the Respondent, was refusing to obey the Respondent's rules. If, therefore, this discrimination encouraged membership in the Respondent, the Respondent violated Section 8 (h) (2) of the amended Act. The normal effect of the discrimination against Fowler was to enforce not only his obedience as a member of such rules as the Respondent might pre- scribe, but also the obedience of all his fellow members. It thereby strength- ened the Respondent both in its control of is members for their general, mutual' advantage, and in its dealings with their employers as their representative. It thus encouraged nonmembers to join it as a strong organization whose favor and help was to be sought and whose opposition was to be,avoided. In its effect upon nonmembers alone, it must therefore be regarded as encouraging member- ship in the Respondent. Finally, by its demonstration of the Respondent's strength, the discrimination. in the present case also had the normal effect of encouraging Fowler and other members to retain their membership in the Respondent either through fear of the consequences of dropping out of membership or through hope of advantage- in staying in. Upon these considerations, the undersigned concludes that, by its refusals to. issue clearances for Fowler which caused the Company to withdraw its offers of employment on February 28 and April 26, 1948, the Respondent, in violation, "Both Section 8 (3) of the Wagner Act and Section 8 (a) (3) of the amended Act contain this identical language They differ only in their respective provisos dealing with the permissible types of union security contracts and the extent to which such, contracts are defenses to charges of discrimination. 1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Section 8 (b) (2) of the amended Act, also caused the Company, as an em- ployer, to violate Section 8 (a) (3) of the amended Act, by discriminating against Fowler as a prospective employee , in regard to his hire , tenure, and conditions of employment, thereby encouraging membership in the Respondent labor organization. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in Section III, above, occurring in connection with the operations of the Company described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ,obstructing commerce and the free flow of commerce V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor -practices within the meaning of Section 8 (b) (1) (A) and Section 8 (b) (2) of the amended Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies -of the amended Act. The undersigned has found that, in violating both Section 8 (b) (1) (A) and .Section 8 (b) (2) of the amended Act, the Respondent objected to, and prevented, 'the Company's hire of Fowler, thereby causing Fowler to lose employment by the Company. Accordingly, it will be recommended (1) that the Respondent notify ,the Company in writing, and furnish a copy of the notice to Fowler, that it has withdrawn its objections to the employment of Fowler by the Company and -requests the Company to offer Fowler employment as a radio officer; and (2) -,that the Respondent make Fowler whole for any loss of pay he may have suf- fered by reason of the Respondent's preventing his hire by the Company on -February 28, 1948, and April 26, 1948, according to the following formula : " Fowler's loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof from February 28, 1948, to the date of the Company's -offer of employment to him as a radio officer, or to the date on which the Re- spondent serves its notice upon the Company of its withdrawal of objections to Fowler's employment, whichever shall first occur. The quarterly periods, herein- after called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which Fowler would normally have earned for each such quarter or portion thereof, his net earnings," if any, in other employment during the period. Earn- ings in one particular quarter shall have no effect upon the Respondent's liability for any other quarter. - Upon the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. A. H. Bull Steamship Company, a New Jersey corporation, is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the amended Act . 12 See F W. Woolworth Company, 90 NLRB 2S9 11 By "net earnings " Is meant earnings less expenses , such as for transportation, room, and board , incurred by Fowler in connection with obtaining work and working elsewhere than for the Company; which would not have been incurred but for the Respondent's preventing his employment by the Company . See Crossett Lumber Company , 8 NLRB 440. Monies received for work performed upon Federal , State, County, municipal , or other ' work -relief projects shall-be considered as earnings See Republic Steel Corporation v. N.L.R B,311U.S.7. AMERICAN OPTICAL COMPANY 1547 2. The Respondent , The Radio Officers' Union of the Commercial Telegraphers Union, AFL, is a labor organization within the meaning of Section 2 (5) of the .amended Act. ' 3. By restraining and coercing employees and prospective employees in the 'exercise of a right guaranteed in Section 7 of the amended Act, the Respondent ,did engage in and has continued to engage in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the amended Act. 4. By causing A. H. Bull Steamship Company, an employer , to discriminate against a prospective employee in violation of Section 8 (a) (3) of the amended Act, the Respondent engaged in , and is engaging in, unfair labor practices within the meaning of Section 8 (b) (2) of the amended Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and ( 7) of the amended Act. '[Recommended Order omitted from publication in this volume.] AMERICAN OPTICAL COMPANY and UNITED OPTICAL AND INSTRUMENT WORKERS OF AMERICA, LOCAL NO. 28, 'CIO. Case No. 1-CA-676. April 18,1951 Decision and Order On January 9, 1951, Trial Examiner Sidney L. Feller issued his Report in the above-entitled proceeding, finding that the Respondent had engaged and was engaging in certain unfair labor practices and recommending that it be ordered to cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached -hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices and recommended dismissal of the allegations of the complaint relating thereto. Thereafter, the Respondent and the Union filed exceptions to the Intermediate Report and supporting briefs. The Board r has reviewed the rulings of the Trial Examiner at the -hearing and finds that no prejudicial error was committed. The rul- ings are hereby aflirmed - The Board-has considered the Intermediate Report, the briefs and exceptions, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the 'Trial Examiner, including his dismissal of the complaint with respect to the discharge of William Morin. Order Upon the entire record. in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations 'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman Herzog and Members Murdock and Styles]. 2 At the hearing the Respondent moved that the complaint be dismissed on the ground that the record did not show any allegation or proof that the Union was in compliance with Section 9 (f), (g), and (h) of the Act For the reasons stated in Lion Oil Company, 76 NLRB 565, we affirm the Tiial Examiner ' s denial of this motion. 93 NLRB No. 265. Copy with citationCopy as parenthetical citation