United Industrial Workers of North America

National Labor Relations Board - Board Decisions

Dec 14, 1973

207 N.L.R.B. 958 (N.L.R.B. 1973)

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Industrial Workers of North America of the
Seafarers International Union of North America,
AFL-CIO-Pacific District , and Leo D. Bonser, as
trustee of United Industrial Workers of North
America of the Seafarers International Union of
North America , AFL-CIO-Pacific District, An-
chorage Longshore Unit (Sea -Land Service, Inc., et
al.) and Anchorage Independent Longshore Union,
Local No. 1. Case 19-CB-1947
December 14, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On May 27, 1973, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
In its exceptions Respondent, inter alga, excepts to
the Administrative Law Judge's denial of its post-
hearing motion to reopen the record to consider
evidence taken at the hearing before the United
States District Court, District of Alaska, in a 10(1)
proceeding which took place some 3 months after the
Board hearing in this case. Respondent therefore
moves that the Board reopen the record to receive
the proffered evidence.
In a brief filed in support of its position, Respon-
dent describes that part of the testimony contained in
the transcript of the hearing before the court which it
believes to be material and relevant to the disposition
of the issues here. Specifically, Respondent asserts
that at the 10(j) hearing General Counsel's principal
witness gave a definition of "regular casuals" which
would have excluded some of the individuals found
to have been discriminated against as such by the
Administrative Law Judge; that another of General
Counsel's witnesses testified that the only casuals
with seniority rights were those that had been
regularly employed in the longshore industry for a
year or more; and, finally, that Kowalski admitted to
having lied to Bonser at the October 9, 1972, meeting
as to the whereabouts of the little brown telephone
directory from which the "list of 73" was transcribed.
For purposes of passing on Respondent's motion,
we assume that it accurately described that testimo-
ny, and we have considered its relevance in light of
the issues posed by the complaint. Having done so,
we are satisfied that the proffered evidence would
not affect the result here reached, and that it would
therefore serve no useful purpose and only further
delay the case to grant Respondent's motion to
reopen the proceeding.2
The complaint, as litigated, alleged that, in the
context of an intraunion dissident movement, the
Respondent's agents unlawfully exercised their dis-
patch authority by dispatching individuals identified
as "regular casuals" who supported Respondent and
refusing to dispatch others who supported the
dissident faction . As indicated by the Administrative
Law Judge's Decision below, the nature of the issue
posed by the complaint was one of motivation. He
found the complaint to have been proven by the
testimonial admissions made by Bonser at the
Board's hearing and the corroborative effect of other
evidence. The evidence proffered by the Respondent
relates to this central motive issue only to the extent
that it indicates that Bonser may have had some
objective basis for doubting the authenticity of the
dispatch list presented to him at the October 9, 1972,
meeting and that such good-faith doubts were, in
fact, the motivating reason for his placing on the
bottom of the dispatch list those named in Appendix
A of the Administrative Law Judge's Decision.3
However, we find, in agreement with the Adminis-
trative Law Judge, that good-faith doubt as to the
list's authenticity was not the real reason for
Respondent's conduct in placing the aforesaid
individuals on the bottom of the list. In so finding,
we primarily rely on the fact, as did the Administra-
tive Law Judge, that if Bonser sincerely entertained
any doubts as to the list's authenticity, he could have
quickly and easily checked the list against available
work records or consulted his assistant dispatcher, an
individual who had worked on the waterfront for
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his fmddhgs
2 That the Board can use its discretion in determining whether to reopen
a record in an unfair labor practice proceeding to consider evidence
presented before a different forum has been upheld in the courts See, e g ,
Independent Stave Company, Inc v N.L R.B, 352 F 2d 553 (C A 8, 1965),
N.L.R.B. v Pacific Intermountain Express Co, 228 F 2d 170 (C A 8, 1955),
cert denied 351 U S 95
3 While any conflict in the testimony of General Counsel's witnesses at
the 10(j) hearing from that which they gave at the Board hearing might also
go toward impeaching their credibility , we find the Respondent 's motive to
be fully established in the record here without even considering the
contradicted testimony of these witnesses
207 NLRB No. 150
UNITED INDUSTRIAL WORKERS OF NORTH AMERICA
many years and presumably would have been
familiar with those who regularly worked there. But
Bonser admitted that he did not make these inquiries.
His failure to do so leads us to conclude, as it did the
Administrative Law Judge, that his challenge to the
list's authenticity really was a pretext for disguising
his true motive for refusing to dispatch those listed
thereon ahead of those who worked during the
strike-that being to favor those who would be
expected to support Respondent in any future
election.
Having thus found that the proffered evidence,
assuming it to be true, would not have affected the
results in this case, we find that the Administrative
Law Judge's refusal to reopen the record for
purposes of considering this evidence was not
prejudicial. Accordingly, we find Respondent's
exceptions to be without merit and hereby deny its
motion to reopen the record.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent , United Industrial
Workers of North America of the Seafarers Interna-
tional Union of North America , AFL-CIO-Pacific
District , and Leo D. Bonser , as trustee of United
Industrial Workers of North America of the Seafar-
ers International Union of North America,
AFL-CIO-Pacific District, Anchorage Longshore
Unit, their officers , agents, and representatives, shall
take the action set forth in the said recommended
Order.
DECISION
STATEMENr OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based
upon a charge filed on October 20, 1972, as amended on
November 1, and November 22, 1972, by Anchorage
Independent Longshore Union, Local No. 1, hereinafter
referred to as the Independent, the complaint herein was
issued on November 27, 1972. The complaint alleges that
the Respondents violated Section 8(b)(2) and (1)(A) of the
Act by discriminatorily failing to dispatch certain long-
shoremen identified as "regular casuals." Respondents by
their answer deny they committed the unfair labor
practices alleged in said complaint.'
Pursuant to notice, a hearing was held in Anchorage,
Alaska, on January 30, 31, and February I and 2, 1973,
before a duly designated Administrative Law Judge.
Appearances were entered on behalf of all of the parties
I In addition, said answer sets forth certain affirmative defenses,
particularly that the matter "is not within the jurisdiction of the National
Labor Relations Board" but rather it must be decided by arbitration, and
959
and briefs were received from the General Counsel on
April 5, 1973, and from the Respondents on April 3, 1973.
Upon the entire record in this case and from my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
1. THE EMPLOYERS INVOLVED HEREIN
Sea-Land Service, Inc. (herein called Sea-Land), is a
Delaware corporation engaged in business as a common
carrier by water between various ports of the United States
and foreign ports. Sea-Land maintains offices and terminal
and distribution facilities at the Port of Anchorage, Alaska.
During the past calendar year, Sea-Land purchased goods
and services from outside the State of Alaska in an amount
exceeding $50,000 and had a gross volume of sales and
performance of services in excess of $500,000.
North Star Terminal & Stevedore Company (herein
called North Star) is an Alaska corporation with its
principal place of business in Anchorage, Alaska, where it
is engaged in stevedoring and handling of cargo to and
from vessels. During the past calendar year, North Star
purchased goods and services from outside the State of
Alaska in an amount in excess of $50,000 and had a gross
volume of sales and performance of services in excess of
$500,000.
Pacific Western Lines (herein called Pac-West) is an
Alaska corporation with its principal place of business in
Anchorage, Alaska, where it is engaged in stevedoring and
handling of cargo to and from vessels and transporting
cargo by tug and barge. During the past calendar year,
Pac-West purchased goods and services from outside the
State of Alaska in an amount in excess of $50,000 and had
a gross volume of sales and performance of services in
excess of $500,000.
As is admitted by Respondents, Sea-Land, North Star,
and Pac-West are, and have been at all times material
herein, employers within the meaning of Section 2(2) of the
Act, engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
As is admitted by Respondents, United Industrial
Workers of North America of the Seafarers International
Union of North America, AFL-CIO-Pacific District,
hereinafter referred to as UIW, is a labor organization
within the meaning of Section 2(5) of the Act.
Although it is not alleged, it is clear from the record that
Industrial Workers of North America of the Seafarers
International Union of North America, AFL-CIO-Pacif-
ic District, Anchorage Longshore Unit, hereinafter referred
to as the Longshore Unit, is a labor organization within the
meaning of Section 2(5) of the Act.
Respondents deny the allegation that the Charging
Party, the Independent, is a labor organization within the
meaning of Section 2(5) of the Act. Based upon the facts
also that the complaint should be dismissed because of the failure to join the
employers involved herein as indispensable parties
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
set forth hereinbelow, it is found that said allegation is
sustained.2
III. THE UNFAIR LABOR PRACTICES
There is little dispute as to the facts material to the
resolution of the principal issue in this case. The facts set
forth herein below are based upon credited testimony and
exhibits received in the record.
The aforementioned Sea-Land, North Star, and Pac-
West are the principal employers of longshoremen in the
Port of Anchorage, Alaska. The Longshore Unit com-
menced representing the longshoremen at the Port in 1961
by virtue of its recognition by employers of longshoremen.
The Longshore Unit which is affiliated with Respondent
UIW operated as virtually an autonomous organization in
that it negotiated its collective-bargaining agreements with
the Anchorage employers, administered its health and
welfare and pension plans, and had its own constitution.
Its members paid a per capita tax of $5 per month to
Respondent UIW.
The aforesaid three Employers were parties to collective-
bargaining agreements with the Longshore Unit, which
agreements expired June 30, 1971. Pursuant to notification
on April 14, 1971, the Longshore Unit and the Employers
commenced negotiations for new contracts in March 1972.
The negotiations were delayed because it was the practice
of the parties to await the results of the negotiations
between the International Longshoremen's Union and the
West Coast employers before commencing their negotia-
tions. Although the negotiations took place between the
parties, no new agreements were - executed. The old
agreements were observed on a day-to-day basis pending
execution of the new agreements.
At a meeting on May 19, 1972, by a vote of 24 to 3 (of a
total membership of 28) the members of the Longshore
Unit voted to disaffiliate from the UIW. Apparently it was
the understanding, however, that a second vote on
disaffiliation would be held after a meeting with Team-
sters' officials.
A second meeting was held on June 9, 1972, with
Teamsters' officials present and, after a discussion with
said officials who were then excused, a vote was taken on a
motion "to disaffiliate from the United Industrial Workers
of North America." The tally was 23 for disaffiliation and
2 against.
Also at the aforesaid meeting on June 9, a petition was
signed by 25 of the members of the Longshore Unit
indicating their desire that an election be held by the
National Labor Relations Board "for the purpose of
decertifying the United Industrial Workers of N.A. (Pacific
District) Anchorage Longshore Unit from all affiliations
existing under the present charter from the Seafarers'
International Union of North America, AFL-CIO issued 1
December 1962."
Apparently the aforesaid actions at the June 9 meeting
were in contemplation of prospective affiliation with the
Teamsters Union.
2 While his finding is not binding upon me, it is noted that based upon a
petition for election filed by the Independent in Case 19-RC-6261 the
Regional Director for Region 19 issued a Decision and Order in which he
found that the Independent is a labor organization within the meaning of
Francis Grant, who served as business agent of the
Longshore Unit starting in 1968, sent letters dated June 27,
1972, to the aforesaid Employers stating that, effective
-midnight June 30, 1972, the Longshore Unit "will disaffili
ate" from UIW and operate as an independent union
known as "Anchorage Independent Longshore Union,
Local No. 1." On the same date, he sent letters to the UIW,
the Occidental Life Insurance Co., and the First National
Bank of Anchorage to the same effect. Then on July 5, he
filed a petition for election in Case 19-RC-6261, ostensibly
on behalf of the Independent, together with a copy of the
aforementioned petition signed on June 9, 1972. The
petition filed with the Board was for a multiemployer unit
and by Decision and Order of the Regional Director issued
September 7, 1972, the petition was dismissed based upon
the finding that "a multiemployer unit cannot be appropri-
ate." Thereafter, on September 18, the Independent filed
three petitions for election (Cases 19-RC-6332, 6333, and
6334) in single employer bargaining units of the employees
of the aforementioned Employers .3
Meanwhile, the Independent opened a savings' and
checking account and moved from the Carpenters Hall to
the Teamsters Hall where it rented office space from the
Teamsters. Also it obtained a telephone and a secretary.
On August 22, 1972, a membership meeting of the
Independent was held in the Teamsters Hall at which a
motion was carried to retain the officers of the "old union"
until such time as a new election could be held. Also a
motion was carried to prepare a draft of a constitution for
the organization. It appears that, although a draft had been
prepared at the time of the hearing, it had not, as yet, been
ratified by the membership.
The aforementioned collective-bargaining agreements
with the three Employers provided for the method by
which longshoremen are to be dispatched to work by a
dispatcher selected by the Longshore Unit, and A. F.
Kowalski served in that capacity for approximately 3 years
(apparently up to June 30, 1972). Thereafter, he served as
the dispatcher for the Independent, and the Employers
made their requests for longshoremen to be dispatched to
them through the Independent.
Shortly after receiving the aforementioned notice of the
action to disaffiliate, the UIW protested and the represent-
atives of the UIW and the Independent had several
meetings with respect to the protest without any resolution
thereof. On September 16, the UIW appointed Leo Bonser
as trustee of the Longshore Unit, but he received no
cooperation from the former officers of the Longshore
Unit. On September 27, Bonser, as trustee, obtained a
temporary restraining order from the United States District
Court (which was served upon the former officers of the
Longshore Unit) requiring them to comply with the
"Appointment of Trustee" issued by the UIW. It further
provided for the removal of said officers, for replacement
of them with said trustee, and for the turnover of all books
and records of the Longshore Unit. By virtue of this order,
the trustee assumed all of the functions of the said officers
Section 2(5) of the Act.
3 Apparently these petitions have not been processed pending the
disposition of the instant case.
UNITED INDUSTRIAL WORKERS OF NORTH AMERICA
including that of the office of dispatcher. On September 28
or 29, Bonser, as trustee, notified the Employers that he
and his designee were the only ones authorized to dispatch
longshoremen and demanded that the Employers notify
him of any dispatches required.
On October 1, North Star, apparently in compliance with
the trustee's demand, notified him of its requirement for
some longshoremen. At the time he had in his possession a
list of registered and partially registered men which had
been furnished to the UIW in connection with per capita
payments to it. None of the men on the said list agreed to
accept dispatch from him. Instead the Independent on that
day started picketing North Star with the statement
"Unfair to Anchorage Independent Longshore Union." It
appears that subsequent thereto the other two Employers
were also picketed with similar signs. It is inferred from the
credited testimony that the picketing and the refusal to
accept dispatches were to protest the Employers' failure to
recognize the Independent as the representative of the
bargaining unit of longshoremen and their failure to
request dispatches from the Independent's dispatcher.
In order to comply with dispatch requests, the Trustee
compiled a list of men, apparently outside of the longshore
industry, who were willing to accept longshore work. On
October 3, he sent telegrams to the registered and partially
registered men to no avail. On October 9, a meeting was
called by the Assistant Labor Commissioner in Anchorage
of representatives of the Independent, the Employers, and
the Respondents. At the request of said commissioner,
Grant had prepared a list of 73 men consisting of registered
men, the partially registered men, and the casuals "who
had worked on the waterfront during the year." This "list
of 73" was distributed to the parties present at the meeting.
It appears that the first 28 names on the list are those of
the registered men, ' the names numbered from 29 through
35 are the partially registered men, and from 36 to the end
are casuals. The General Counsel contends that numbers
36 through 54 were "regular casuals" and that the others
were "moonlighters" (or those whose work was not
primarily in the longshore industry). At the aforesaid
meeting a representative of the Independent requested that
all dispatching be made from the "list of 73." The trustee
merely indicated that he would take the request under
advisement. It appears that the aforesaid list was compiled
from various records and a "little brown book" which was
a notebook used by Kowalski in making his dispatches.
Said notebook contained a list of names which substantial-
ly coincides with the names contained in the list of 73. It
further appears that, of the list of 73, numbers 1 through 54
appeared first in the little brown book and then the
balance of the names appeared under the heading of
"moonlighters." 4
In his testimony, which is credited, Kowalski explained
that the practice was to dispatch the registered men
(numbers 1 through 28 on the list of 73) before dispatching
the partially registered men (numbers 29 through 35) and
that after both said groups were exhausted he would
4 Although there are some discrepancies between the notebook and the
list of 73, such discrepancies were satisfactorily explained by Kowalski in
his testimony.
5 Although it appears there were some deviations from the practice, it
961
dispatch the "regular casuals" (numbers 36 through 54)
before dispatching the moonlighters (numbers 55 through
73).5 Kowalski further credibly testified that he generally
followed the practice of dispatching the regular casuals by
seniority (as to the dates on which they entered the
industry). It is found that the men whose names are
numbered 36 to 54 are listed in order of their seniority in
the industry.
Later in the day on October 9, there was a second
meeting between the representatives of the various parties
which was mainly concerned with a discussion of the
problem of dispatching. Representatives of Respondents
apparently claimed that the list was not authentic and
pointed out that certain of the men on the list were
working at otherjobs. It appears that the names referred to
were toward the bottom of the list among the group
classified as moonlighters. Grant testified that he informed
Respondents' representatives that it would be satisfactory
if the trustee called numbers 36 through 54 (regular
casuals). On the other hand, Bonser testified that the
Independent's representatives insisted on the entire list of
73. Grant's testimony is credited. It is reasonable to assume
that a distinction between regular casuals and the moon-
lighters must have been made to meet the criticism that
there were men on the list who were working at other jobs.
The registered and partially registered men were dis-
patched for work on the evening of October 9, but, instead
of dispatching any of the casuals on the list of 73, the
trustee dispatched casuals who had been used by him
during the period when the Independent was picketing the
docks (October I through October 8). Upon learning of the
action of the trustee with respect to the dispatching of said
casuals, Grant confronted Bonser and insisted that unless
the Independent's casuals were called at the 1 a.m. break
he would pull the men off the job. Bonser contended that
such action would be inappropriate, since one casual
cannot "bump" another casual. When Bonser 'refused to
accede to his demand, Grant called the registered and
partially registered men off the job and the Independent
resumed its strike. The trustee then attempted to fill the
requests for dispatches for October 10, and, since the
trustee's casuals were not sufficient in number to satisfy
the requests, the men on the list of 73 were called but to no
avail. On the evening of October 11, the list of 73 was again
called with no greater success.
The strike ended on October 12. Thereafter, the trustee
dispatched the registered and partially registered men, but
dispatched none of the casuals on the list of 73 (with one
minor exception which is of no moment in the resolution of
the issues). It is noted that it was not until October 13 that
the trustee received the "little brown book" which, as
aforementioned , was the list from which Kowalski made
his dispatches.
The primary issue in this proceeding is whether or not
the trustee's continuing failure to call the regular casuals,
numbers 36 through 54, was discriminatorily motivated.
Respondents concede in their brief that neither the "list
does not appear that they were of sufficient moment to pernut the finding
that the practice to which he testified was not well established in the Port of
Anchorage.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of 73" nor the "little brown book" has been "utilized since
October 13, 1972, in the dispatching of longshoremen."
The record discloses that the trustee did dispatch the
registered men and partially registered men whose names
appeared in said list and book, but except for one minor
exceptions he dispatched none of the casuals contained
therein.
It appears from the record and their brief that Respon-
dents have advanced various reasons for the trustee's
failure to dispatch said men and contend that said reasons
were not unlawful.
First, Respondents contend, in essence , that even though
they may have refused to dispatch the regular casuals
because they were engaged in a strike (ostensibly on
October 10 and 11 when they did not respond to dispatch),
said strike constituted unprotected activity. On the other
hand, the General Counsel contends that their conduct in
striking constituted protected concerted activity. No
purpose would be served in resolving this issue , since I am
convinced that the refusal to call the regular casuals for
dispatch since October 13, 1972, was not motivated by
their having engaged in a strike. It is noted that the
registered men and partially registered men not only
engaged in striking on October 10 and 11 but also on
October 1 to 8, and nevertheless the trustee imposed no
such sanction against them for having engaged in "unpro-
tected activity." It appears that this argument was raised to
meet General Counsel's contention that they were not
dispatched for having engaged in protected activity. Thus,
at most, this reason for not having dispatched the casuals is
a mere afterthought.
Respondents do, however, advance a somewhat similar
reason, that by withholding their services on October 10
and 11 when asked to accept a dispatch the regular casuals
lost whatever rights they had to be called for dispatch.?
This argument is essentially based upon the fact that the
contract imposes certain sanctions on registered and
partially registered men for failure to accept dispatch
within prescribed periods of time . Thus, apparently by
analogy, the Respondents impose a rule of an even more
limited period of time for refusal by casuals to accept a
dispatch. There is no basis either in the contract or in area
practice for such a rule. In any event, it is my belief that
the imposition of such a rule was a mere pretext.8
A third reason set forth by Respondents as to why the
trustee's conduct is not unlawful is, in essence , that the
regular casuals had no seniority rights. It is quite true that
there is nothing in the contracts with the Employers which
sets forth seniority rights among casuals .9 As above stated,
it appears from credited testimony that the standing
practice in the Port had been to dispatch regular casuals
after the list of registered and partially registered men had
been exhausted and prior to moonlighters. Also, as stated
above, it appears that the practice was generally to
6 John Finke requested the trustee on October 15, 1972, that he be
dispatched and was placed at the end of the trustee 's list of casuals as it was
then constituted . It is noted that those whose names appeared above his
were given priority.
r Finke testified, without contradiction, that the trustee told him he and
others had lost what rights they had because they had refused to accept
dispatch.
8 Thus, it is not necessary to consider the issue of whether or not a rule
dispatch the regular casuals in order of seniority based
upon date of entrance into the industry. It is noted that the
trustee, himself, in dispatching men from the list of casuals
which he compiled admittedly followed a seniority system
based upon the order in which their names were entered on
his list. It is inferred from all of the circumstances that the
trustee believed that he could with impunity ignore the
practice of giving seniority to the regular casuals because
there was no provision in the contract prescribing it as
there was in the case of the registered and partially
registered men. It is concluded there is no merit to the
defense that the regular casuals had no seniority rights.
The fourth reason given for not using the list of 73 and
the little brown book is that the names therein were
meaningless to the trustee. The argument that the list was
meaningless is predicated on the fact that two of the names
of the registered men were reversed with respect to their
seniority and some of the men at the tail end of the list
(apparently among the moonlighters) advised him that they
were employed at other jobs. This argument is not
convincing. The trustee admitted that he knew that a
number of men who were on the list worked regularly on
the waterfront. Moreover, a comparison of the list of 73
with the list of registered and partially registered men must
have alerted him to the fact that the first 35 names on the
list of 73 were registered and partially registered men, that
the men at the end of the list from 55 through 73 were
"moonlighters" and that the names, 36 through 54, were
the men who were regularly employed as casuals on the
waterfront. In any event, even if the trustee had any doubts
as to the authenticity of the list, he could have consulted
the work records available to him or consulted Ralph
Alonis, a registered man who apparently had worked on
the waterfront for a considerable period of time and was
appointed by the trustee to aid him in dispatching.
However, the trustee admitted that he never checked the
list against the records available to him and Alonis testified
that the trustee never asked him about the accuracy of the
list of 73. Thus, it is concluded that this reason (that the list
was meaningless) was merely a pretext for failing to utilize
it.
It appears that a key to ascertaining the trustee's motive
in ignoring the regular casuals on the list of 73 is his
following testimony:
A. I thought the list of names on this date-I
thought they were submitting me a list of people who
had worked but were inclined to go with them over a
dispute, over a beef. That these were their people-
It is inferred from said testimony and all of the circum-
stances, including the pendency of the petitions for election
and the above findings with respect to the reasons
advanced by the Respondents for ignoring the regular
casuals , that the trustee refrained from dispatching the
unilaterally imposed by a union which affects the terms of hiring an
employee is unlawful.
9 While it appears that there was a provision in the proposed new
contract being negotiated that casuals have no seniority rights, the fact that
such a new provision was proposed is of no aid to Respondents since it
could very well have been proposed in derogation of existing seniority
rights.
UNITED INDUSTRIAL WORKERS OF NORTH AMERICA 963
regular casuals because he knew that they were adherents
of the Independent. He could have had no doubt of their
said adherence, since on October 10 and I 1 they complied
with the strike called by the Independent. Apparently he
thought that he could not ignore the registered and
partially registered men because of the provisions in the
contract relating to them, but that he could build up a
group of adherents to the Longshore Unit by dispatching
"his casuals ." Thus, it is found that his ignoring the regular
casuals on the list of 73 was discruninatorily motivated in
that it was calculated to encourage adherence to the
Longshore Unit and discourage adherence to the Inde-
pendent. Consequently, it is concluded that his failure to
call the regular casuals (numbers 36 through 54 on the list
of 73)10 was violative of Section 8(b)(2) and (1)(A) of the
Act within the principles set forth by the Supreme Court in
Radio Officers' Union of the Commercial Telegraphers
Union, AFL [A. H. Bull Steamship Company] v. N.L.R.B.,
347 U.S. 17 (1954).
As above mentioned, Respondents have alleged certain
affirmative defenses. With respect to the affirmative
defense that the issues in this proceeding should be decided
by arbitration, it is noted that the Charging Party and the
Respondents are not parties to any agreement providing
for binding arbitration. Although it may be said-that the
regular casuals who have been found to have been
discriminated against by Respondents had recourse to
contractual grievance procedures leading to arbitration, it
does not appear that there is any assurance that either of
the parties to the contracts (Employers and the Longshore
Unit) would fairly represent them in arbitration proceed-
ings. The Longshore Unit's interest is diametrically in
opposition and the Employers are under no obligation to
do so. Therefore, deferral to arbitration would not be
warranted herein. Kansas Meat Packers, a Division of Aristo
Foods, Inc., 198 NLRB No. 2.
With regard to the contention of Respondents that the
proceedings should be dismissed on the ground that the
Employers involved herein are indispensable parties, it is
noted that Respondents failed to cite any cases in support
of this contention and made no mention of this defense in
their brief. Research has failed to reveal any precedent
which would support this contention of Respondents.
Therefore, it is found to be without merit.
Subsequent to the close of the hearing I received from
Respondents several communications asking me to take
official notice of the decision of the District Court of
Alaska with respect to an application for an injunction by
the Regional Director under Section I0(j) of the Act in
which the Court in its decision stated: "There has been no
adequate showing of a discriminatory motive [on the part
of the Respondents in the instant proceeding )." They have
also forwarded to me a transcript of the hearing before said
Court. With due deference to said Court, no purpose
would be served in considering this decision or the
transcript of the hearing before it, since its judgment is
neither binding nor controlling on the Board and the
transcript of the proceeding before it is not part of the
record in this proceeding.
Although it has not been raised as an issue herein,
nevertheless, it is considered appropriate to make a finding
that Respondent UIW should be charged with the conduct
of Leo Bonser as Respondent trustee, since, by virtue of its
appointment of him as trustee, it follows that he, as trustee,
acted as its agent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondents set forth in
section III, above, occurring in connection with the
operations of the Employers, described in section I, above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several states, and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
It having been found that the Respondents have engaged
in certain unfair labor practices, it will be recommended
that they be ordered to cease and desist therefrom and take
certain affirmative action deemed necessary to effectuate
the policies of the Act.
It having been found that Respondents unlawfully failed
to dispatch the regular casuals listed in Appendix A
attached hereto, it will be recommended that Respondents
be ordered to dispatch said regular casuals after the list of
registered and partially registered men has been exhausted
in order of their seniority (according to their number).
It will be further recommended that Respondents, jointly
and severally, be ordered to make said regular casuals
whole for any loss of pay they may have suffered as a result
of their loss of employment as longshoremen (because of
the aforesaid unfair labor practices) in the manner set forth
in F. W. Woolworth Company, 90 NLRB 289, 291-293,
together with 6-percent interest thereon in accordance with
Isis Plumbing & Heating Co., 138 NLRB 716, between the
date of October 13, 1972, and the date on which they are
informed that they will be dispatched as above recom-
mended. It will be further recommended that Respondents
notify said regular casuals individually, in writing, that
they will be dispatched in accordance with the Order
recommended herein.
Upon -the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Sea-Land Service, Inc., North Star Terminal &
Stevedore Company, and Pacific Western Lines are
employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. United Industrial Workers of North America of the
Seafarers International Union of North America,
AFL-CIO-Pacific District; United Industrial Workers of
North America of the Seafarers International Union of
North America, AFL-CIO-Pacific District, Anchorage
Longshore Unit; and Anchorage Independent Longshore
10 The names of the regular casuals who were discriminated against are
set forth in Appendix A hereto in order of their seniority.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, Local No. 1, are labor organizations within the
meaning of Section 2(5) of the Act.
3. By the continuing failure of Leo D. Bonser, as
trustee of United Industrial Workers of North America of
the Seafarers International Union of North America,
AFL-CIO-Pacific District, Anchorage Longshore Unit,
to dispatch the regular casuals whose names are set forth in
Appendix A herein since October 13, 1972, in accordance
with their existing seniority rights, Respondents violated
Section 8(b)(2) and (1)(A) of the Act.
Upon the foregoing findings of fact, conclusions of law,
upon the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
Respondents, United Industrial Workers of North
America of the Seafarers International Union of North
America, AFL-CIO-Pacific District, and Leo D. Bonser,
as trustee of United Industrial Workers of North America
of the Seafarers International Union of North America,
AFL-CIO-Pacific District, Anchorage Longshore Unit,
their officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Failing to dispatch the regular casuals listed in
Appendix A in order of their listing therein immediately
after exhausting the lists of registered and partially
registered men.
(b) In any like or related manner interfering with,
restraining, or coercing longshoremen in the exercise of
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Dispatch the regular casuals listed in Appendix A in
order of their listing therein immediately after exhausting
the lists of registered and partially registered men.
(b) Jointly and severally make said regular casuals whole
for any loss of pay they may have suffered as the result of
the aforesaid failure to dispatch them in the manner above
stated.
(c) Upon request, make available to the Board or its
agents, for examination and copying, all dispatch records
and other records containing information concerning their
obligation under this recommended Order to make said
regular casuals whole.
(d) Post at their business offices and meeting halls copies
of the attached notice marked Appendix B.12 Copies of
said notice, on forms provided by the Regional Director
for Region 19, shall, after being duly signed by authorized
representatives of Respondents, be posted by them
immediately upon receipt thereof and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to their members are
customarily posted. Reasonable steps shall be taken by
said Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Copies of said notice, after being duly signed by
authorized representatives of Respondents, shall be re-
turned to the Regional Director for Region 19, for posting
by Anchorage Independent Longshore Union, Local No.
1, in its office and meeting hall, should it be willing.
(f) Copies of said notice shall, after being duly signed by
authorized representatives of Respondents, be mailed to
each individual listed in Appendix A.
(g) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
APPENDIX A
Regular Casuals
36. Jackson, Warren; 37. Deveney, James; 38. Zura,
Michael; 39. King, Robert; 40. Gross, Merle; 41. Barron,
Floyd; 42. Heyworth Scott; 43. Fmke, John; 44. Boettger,
Pat; 45. Swearingen, Edward; 46. Risinger, Allen; 47.
McCauley, Philip; 48. Bowden, James M.; 49. Nistler,
Robert; 50. Dunsmore, Robert; 51. French, Oscar; 52.
Christensen, J. E. Sr.; 53. Evans, Donald; and 54.
Christensen, J. E. Jr.
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX B
NOTICE To LONGSHOREMEN IN THE PORT OF
ANCHORAGE, ALASKA
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, immediately after exhausting the lists of
registered and partially registered men, dispatch, in
order of their listing, the following regular casuals:
Warren Jackson
James Deveney
Michael Zura
Robert King
Merle Gross
Floyd Barron
Scott Heyworth
John Finke
Pat Boettger
Edward Swearingen
Allen Risinger
Philip McCauley
James M. Bowden
Robert Nistler
Robert Dunsmore
Oscar French
J. E. Christensen, Sr.
Donald Evans
J. E. Christensen, Jr.
WE WILL jointly and severally make the above-
named regular casuals whole for any loss of pay they
may have suffered as the result of our failure in the past
to dispatch them in the manner stated hereinabove.
Dated By
UNITED INDUSTRIAL WORKERS OF NORTH AMERICA
UNITED INDUSTRIAL
WORKERS OF NORTH
AMERICA OF THE SEAFARERS
INTERNATIONAL UNION OF
NORTH AMERICA,
AFL-CIO-PACIFIC
DISTRICT
(Labor Organization)
(Representative) (Title) Dated By
965
LEO D . BONSER, AS
TRUSTEE OF UNITED
INDUSTRIAL WORKERS OF
NORTH AMERICA OF THE
SEAFARERS INTERNATIONAL
UNION OF NORTH
AMERICA,
AFL-CIO--PACIFIC
DISTRICT, ANCHORAGE
LONGSHORE UNIT
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office, Tenth Floor, Republic
Building, 1511 Third Avenue , Seattle, Washington 98101,
Telephone 206-442-7472.