United States Lines Co.

National Labor Relations Board - Board Decisions

Sep 7, 1961

133 N.L.R.B. 27 (N.L.R.B. 1961)

UNITED STATES LINES COMPANY 27
tion , to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any and all such activities,
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) of the National Labor Relations Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer to Rene Sardinas, Jose Munez ( also known as Jose Lopez),
Willie Cintron, and Luciano Ramos, immediate and full reinstatement to their
former or substantially equivalent jobs, without prejudice to any rights and
privileges previously enjoyed by them, and we will make them whole for any
loss of wages suffered a's a result of our discrimination against them.
WE WILL, upon individual application , offer to each of the commissary em-
ployees who engaged in the strike which began on April 25, 1960, and who have
not since returned to work or refused an offer of reinstatement , immediate and
full reinstatement to his former or substantially equivalent job, with all previous
rights and privileges.
All our employees are free to become, - remain , or refrain from becoming members
of the above-named Unions , or any other labor organization, except to the extent
that this right may be affected by a lawful agreement requiring membership in a
labor organization as a condition of employment, as authorized in Section 8(a)(3)
of the Act, as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
HOT SHOPPES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NATIONAL CATERERS OF NEW YORK, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
United States Lines Company and Frederick J. Campbell and
Local 22, Industrial Union of Marine & Shipbuilding Workers
of America, AFL-CIO, Party to the Contract
Local 22, Industrial Union of Marine & Shipbuilding Workers
of America, AFL-CIO and Frederick J. Campbell and United
States Lines Company, Party to the Contract . Cases Nos.
2-CA-7360: and -3-CB-2901. September 7, 1961
DECISION AND ORDER
On November 25, 1960, Trial Examiner C . W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease -and desist therefrom
and take certain affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter, both Respondents filed exceptions
to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and fields that no prejudicial error was committed. The
133 NLRB No. 13.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby concludes that the complaint should be dismissed
in its entirety, contrary to the recommendations of the Trial Ex-
aminer, inasmuch as (1) there is a failure of proof by the General
Counsel that the Respondent Union's refusal to refer Campbell for
employment and Respondent Employer's failure to employ Campbell
were discriminatory within the meaning of Section 8(b) (2) and
8(a) (3) of the Act, and (2) the contract between the Respondents and
the hiring practice pursuant to it, which were found violative of the
Act by the Trial Examiner for failure to include the so-called
Mountain Pacific standards,' are now by reason of the Supreme Court's
intervening decision2 not violative of Section 8(a) (1), (2), and (3)
and of Section 8(b) (1) (A) and (2) for lack of inclusion of said
standards.
[The Board dismissed the complaint.]
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
i Mountain Pacific Chapter of the Associated General Contractors , Inc ; et at., 119
NLRB 883.
2Locai 357, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America (Los Angeles-Seattle Motor Empress ) v. N.L.R.B., 365 U.S. 667.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed and duly served in each of the above-entitled cases; an
order consolidated the cases, a complaint and notice of hearing thereon having been
issued and served by the General Counsel of the National Labor Relations Board,
and answers having been filed by each of the above-named Respondents, a hearing
involving allegations of unfair labor practices in violation of Section 8(a)(1), (2),
and (3) and Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as
amended, was held in New York, New York, on October_ 3, 1960, before the duly
designated Trial Examiner. -
All parties were represented by counsel at the hearing, and were afforded full
opportunity to present evidence pertinent to the issues, to argue orally, and to file
briefs. General Counsel's closing argument appears in the record. Briefs have been
received from all parties.
Disposition of motions by the Respondents to -dismiss the complaints, upon which
ruling was reserved at the conclusion of the hearing, is made by the following findings,
conclusions, and recommendations.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
- United States Lines Company is a New Jersey corporation with principal office
and place of business in New York, New York, where it is engaged in operating
oceangoing vessels in domestic and foreign commerce, in the course of which it
transports passengers, goods, and commodities between different States of the United
States and foreign countries.
During the year preceding issuance of the complaint it performed services valued
at more than $500,000. Such services valued at more than $100,000 were performed
in States other than the State of New York.
The Respondent is engaged in commerce within the meaning of the Act.
UNITED STATES LINES COMPANY
II. THE RESPONDENT LABOR ORGANIZATION
29
Local 22, Industrial Union of Marine & Shipbuilding Workers of America, AFL-
CIO, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
This case arises out of one union official 's failure to call the name of F. J . Campbelt
at a shapeup for painters on April 5 , 1960 , to work the Respondent Company's
SS America which had docked that day. Until this date and since February 23, 1960,
Campbell had been regularly called at such shapeups by another union official and
had worked regularly for the same employer . General Counsel claims , and both
Respondents deny, that the failure to call Campbell for work on April 5 was dis-
criminatory , was for the reason that he was not a member in good standing of the
Respondent Union and was pursuant to an unlawful hiring hall contract and practice
existing between the two Respondents.
The question of the contract and practice will first be considered.
B. The contract provisions
There is no dispute as to the fact that since November 1957 , and continuing through
the period here material , the two Respondents have been parties to succeeding con-
tracts containing the following hiring provisions for new employees:
Section 2(d)
. all new employees . . . shall be considered temporary employees or
transient employees . Before they can take the status of regular employees .. .
and acquire seniority, they shall be required to meet the following conditions:
(1) Qualify to do the work required. .
(2) After completing fifteen ( 15) working days during a thirty (30),
day qualifying period, shall make application and become a member
of the Union... .
Section 3.
In the event the Union cannot supply sufficient men with seniority with the
Company , then the Company shall employ any available man.
The Trial Examiner believes there is merit in General Counsel 's contention that
Section 3 above quoted effectively confers preferential if not exclusive hiring power
upon the Respondent Union . As he points out in his brief, in Mountain Pacific
Chapter of the Associated General Contractors, Inc.; et al. (119 NLRB 883), the
Board considered and found immaterial to the unlawful delegation of such power
the fact that if the labor organization failed to exercise it within a prescribed period
it reverted to the employer.
It appears clear , also, appraising Section 3 in the light of the preceding section, that
preference in acquiring employment and its consequent right of seniority must by the
contract language be accorded union members . Conditioning the employment right
of seniority-length of service-upon membership in a labor organization is plainly
discriminatory , and of a design tending to encourage membership in such labor
organization.
In Mountain Pacific, above cited , the Board found similar factors sufficient to hold
a like agreement unlawful on its face , and without regard to the practices under it.
There the Board stated that it would find such an agreement to be nondiscriminatory
on its face , only if the agreement explicitly provided that:
(1) Selection of applicants for referral to jobs shall be on a non-discriminatory
basis and shall not be based on , or in any way affected by, union membership,
bylaws, rules , regulations , constitutional provisions , or any other aspect or
obligation of union membership , policies, or requirements.
(2) The employer retains the right to reject any job applicant referred by the
union.
(3) The parties to the agreement post in places where notices to employees
and applicants for employment are customarily posted, all provisions relating to
the functioning of the hiring arrangement , including the safeguards that we deem
essential to the legality of an exclusive hiring agreement.
None of the prescribed safeguards are set forth in the contracts here in issue. No,
notices have been posted by either party. The Trial Examiner therefore concludes
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and finds that by maintenance of the contract as above described from a date 6
months prior to the filing of the charges in these cases (a charge against each Re-
spondent was filed May 2, 1960) the Respondent Company has violated Section
8(a)(1), (2), and (3) and the Respondent Union has violated Section 8(b)(1)(A)
and (2) of the Act.
The Trial Examiner further finds that the Respondent violated the same sections of
the Act, respectively, by executing the current contract on or about February 19, 1960,
which was made retroactive to November 20, 1959.1
As witnesses, responsible representatives of both Respondents 2 admitted that an
exclusive referral system exists in practice. No notices concerning hiring procedures
are posted either at the Respondent Company's place of business or at the union hall.
Company Superintendent Dengler admitted that he has never rejected anyone sent to
him by the Union. The Union's provisional president, in charge of shapeups, ad-
mitted that the hiring practice is as provided in the contract.
•In practice, when a ship comes in, the superintendent calls the Union and either
asks for the "regular men" in the case of a larger ship, or for a specified smaller
number of men, in case of a small ship. In referring men after the superintendent's
request, the union representative calls names from a seniority list which is com-
posed first of men who have "regular seniority" and then those who have "extra"
seniority. Competent evidence establishes that the "regular seniority" listing has
been closed for nearly 5 years and has been reserved to union members.
On the basis of the foregoing facts the Trial Examiner concludes and finds that an
unlawful preferential hiring practice exists, and that by engaging in such practice the
Respondents have violated the same sections of the Act, respectively, as noted above
in connection with the execution and maintenance of the unlawful contracts.
C. The failure to employ F. J. Campbell on April 5, 1960
Although F. J. Campbell, an experienced painter, since February 23, 1960, had
been working for the Respondent Company as one of the "regular" crew and upon
referral by one James Kauka, conducting the "shapes" in the absence of Provisional
President Holder of the Union, upon Holder's return at the shapeup on April 5,
1960, Campbell was not referred to such work and was not employed by the Re-
spondent Company until early June, after charges had been filed with the Board.
The list used by the Union for referral of men to the Respondent Company, in
evidence, did not and does not contain the name of Campbell, although he had been
working regularly between February 23 and April 5. And although Campbell had
been a member of this labor organization some years ago, it appears that during the
period material herein he was not a member-at least in good standing.
Campbell was at the shapeup the morning of April 5. After Holder had failed
to call his name, both Campbell and Kauka protested and pointed out that he had
been working with the regular gang for many weeks. Holder brushed Campbell's
protest aside by stating that Dengler, the superintendent, had not called specifically
for Campbell? Competent evidence establishes that Dengler never asked for spe-
cific individuals, but only for his "regulars" or a certain smaller number of men.
The next morning Campbell called Dengler by telephone, explaining that Holder
had failed to call him. According to Campbell's credible testimony, Dengler replied,
"Well, that is not my fault. The hiring is done at the union hall and since you are
not a member of the union, I don't think there in anything you can do about it." 4
Campbell appeared at the union hall at the next shapeup, April 11, but again
Holder did not call him.5
1 In its answer the Respondent Company "admits that on or about February 19, 1960, it
executed" the said contract, as alleged in the complaint. The answer of the Respondent
Union denied the complaint's allegations relating to specific dates, but admitted the con-
tinuing existence of such agreements. Nor did the Respondent Union offer evidence to
contradict the specific dates alleged in the complaint and admitted by the Respondent
Company.
2 Superintendent Fred Dengler, of the Respondent Company, and Edwin D. Holder,
provisional president of the Respondent Union.
2 The Trial Examiner can place no reliance upon any of Holder's testimony, in which he
denied that either Campbell or Kauka spoke to him the morning of April 5 about referring
the former to the ship He admitted having seen Campbell at the shape. It would be
contrary to normal human probabilities for an employee, regularly called for many preced-
ing weeks, to remain mute on the first occasion when he was not called with the regulars
In substance, Dengler admits this conversation.
5 The Trial Examiner cannot credit Holder's flat denial that Campbell was present at
the shapeup on April 11.
UNITED STATES LINES COMPANY 31
Dengler's testimony to the effect that while before April 5 he had never asked spe-
cifically for Campbell he had always accepted him when referred is solid founda-
tion for the inference , here drawn , that had Holder referred Campbell to the job
on April 5 he would again have been put to work by Dengler . Dengler 's conver-
sation the following morning, noted above, supports the inference . And support for
a similar inference that Campbell would have been put to work on April 11, had
Holder referred him, is found in Holder 's testimony to the effect that after the shape
that morning , he called the foreman and asked if he wanted to hire two new painters,
and that the two were employed.
Because of its subjective nature, it is not easy to find precisely what Holder's mo-
tive may have been in failing to refer Campbell to work on April 5 and 11. About
the only actual evidence upon which even speculation may be based is Campbell's
statement that "I have had disagreements with Holder, yes ." In the opinion of the
Trial Examiner determination of this point is not required in order to pass upon
the actual issues. In some respects , the situation is similar to one confronting the
Trial Examiner in Mohawk Valley and Vicinity District Council, United Brotherhood
of Carpenters and Joiners of America, et al. (Grow Construction Co., Inc.), 109
NLRB 522, where it appeared that failure to refer a union member to an available
job was caused by personal dislike on the part of the union agent . Whatever the
reason for the failure to refer Campbell it occurred pursuant to what has been
found to be an unlawful hiring hall arrangement-the employer having delegated
its own powers to the Union . Dengler's own testimony establishes the adoption by
the Respondent Company of the Respondent Union 's effective discrimination against
Campbell on April 5.
In summary, the Trial Examiner concludes and finds that by failing to refer Camp-
bell on April 5, 1960, and thereafter , pursuant to an unlawful preferential hiring
agreement and practice, the Respondent Union caused the Respondent Company to
discriminate against Campbell in violation of Section 8(a) (3) of the Act, and thereby
itself violated Section 8(b)(1)(A) and (2 ) of the Act; and that by acquiescing in
such conduct by not hiring Campbell, pursuant to the same unlawful agreement,
the Respondent Company has interfered with rights accorded employees by the Act,
unlawfully discriminated in employment to encourage membership in a labor or-
ganization , and rendered unlawful assistance to a labor organization , in violation of
Section 8(a)(1), (3), and (2), respectively, of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in con-
nection with the operations of the Respondent 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
Having found that the Respondents have engaged in the unfair labor practices
described above, the Trial Examiner will recommend that they cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondents are jointly responsible for the unlawful
discrimination against F. J. Campbell . Accordingly , it will be recommended that
the Respondents jointly and severally make him whole for any loss of pay suffered
as a result of this discrimination against him . The backpay recommended shall be
computed in accordance with the formula set out in F. W . Woolworth Company, 90
NLRB 289.
It has also been found that the Respondents are parties to an unlawful hiring
agreement and arrangement . In accordance with Board policy it will therefore be
recommended that the Respondents cease and desist from entering into , maintaining,
or giving effect to such arrangement , agreement , or understanding , or any other ex-
clusive or preferential hiring arrangement , agreement , or understanding , which does
not provide for the safeguards prescribed in the Board 's decision in Mountain Pa-
cific, and which is not enforced in a nondiscriminatory manner.
It has been found that membershp in good standing in the Respondent Union was
a condition for securing and retaining employment with the Respondent Company,
thereby inevitably coercing employes not only to become members in good standing
in the Respondent Union, but also to pay the Respondent Union initiation fees, dues,
and other sums. The payment of such moneys thus constituted the price employees
had to pay for their jobs in disregard of their statutory rights. In order to expunge
the coercive effects of such illegal exactions , and in accordance with Board policy,
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it will be recommended that the Respondents jointly and severally refund to former
and present employees of the Respondent Company moneys so collected . The Re-
spondents ' liability shall be limited to moneys collected during the period beginning
6 months before the filing and service on them of the charges herein.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 22, Industrial Union of Marine and Shipbuilding Workers of America,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. By being parties to and by maintaining an unlawful hiring agreement and ar-
rangement the Respondent Company and the Respondent Union, respectively, have
engaged in and are engaging in unfair labor practices within the meaning of Section
8(a)(1), (2 ), and (3 ) and Section 8(b)(1)(A) and (2 ) of the Act.
3. By denying Campbell his rightful employment from April 5 until early June
1960, as a result of the operation of the unlawful hiring arrangement referred to
above, the Respondent Company and the Respondent Union, respectively, engaged
in unfair labor practices within the meaning of Section 8(a)(1), (2 ), and (3) and
Section 8 (b) (I) (A) and (2) of the Act.
[Recommendations omitted from publication.]
Jack Roach Broadway, Inc., doing business as Luke Johnson
Ford, Inc. and Retail Automobile Salesmen, Local Union No.
501, affiliated with Retail Clerks International Association,
AFL-CIO. Case No. 23-CA-1152. September 7, 1961
DECISION AND ORDER
On June 23, 1961, Trial Examiner Owsley Vose issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provision of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, the Intermediate Report, the exceptions and the
brief, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
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
1';3 NLRB No. 4.