International Longshoremen's and Warehousemen's Union

National Labor Relations Board - Board Decisions

Jun 6, 1951

94 N.L.R.B. 1091 (N.L.R.B. 1951)

INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 1091
mended that the Respondents, and each of them, cease and desist from in any
manner interfering with, restraining, or coercing their employees or prospective
employees in their right to self-organization."
On the basis of the above findings of fact and upon the entire record in the
case, I make the following :
ConcLusIONs OF LAW
1. The International Association of Machinists is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
A. B. Nelson, A. C. Eakle, Albert Stake, E. C. Callaway, Albert Witaschek,
Fred F. Lord, Arthur Gustaveson, and James M. Gilbert, thereby discouraging
membership in International Association of Machinists and encouraging mem-
bership in labor organizations affiliated with the Bay Counties District Council
of Carpenters, A. F. L., including Millwrights Local 102, the Respondents,
respectively, have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing their employees, respectively,
in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents
have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
11 May Depart,ftent Stores v. N. L. R. B., 326 U. S. 376.
INTERNATIONAL LONGSHOREMEN 'S AND WAREHOUSEMEN 'S UNION AND
INTERNATIONAL LONGSHOREMEN 'S AND WAREHOUSEMEN 'S UNION,
LOCAL 10 and ROOSEVELT STAFFORD
INTERNATIONAL LONGSHOREMEN 'S AND WAREHOUSEMEN 'S UNION AND
INTERNATIONAL LONGSHOREMEN 'S AND WAREHOUSEMEN'S UNION,
LOCAL 10 and JOSEPH SORCE . Cases Nos. f0-CB-87 and 00-OB--9.
June 6,1951
Decision and Order
On October 30, 1950, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents, International Longshoremen's and Warehousemen's
Union, herein individually called the International, and International
Longshoremen's and Warehousemen's Union, Local 10, herein indi-
vidually called the Local, had engaged in and were engaging in cer-
tain unfair labor practices, and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
94 NLRB No. 159.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents filed exceptions to the Intermediate Report and a
supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed'
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent that they are consistent with
our Decision and Order herein.
1. We agree with the conclusion of the Trial Examiner that the
Respondents caused the Employers 2 to discriminate against Stafford
since June 9, 1949, and Sorce since August 10, 1949, in violation of
Section 8 (a) (3), and thereby violated Section 8 (b) (2) and (1)
(A) of the Act.
The instant cases arise in connection with the San Francisco hiring
hall jointly operated by the Employers and the International under a
contract dated December 6, 1948 3 The pertinent facts are fully
detailed in the Intermediate Report, and in summary are as follows :
Under the terms of the contract between the Employers and the
International, which covered the entire Pacific Coast, control of the
hiring hall in each port is vested in a Port Labor Relations Com-
mittee, hereinafter called the Committee, composed of equal numbers
of employer and labor representatives, the latter to be designated by
the International. The expenses of the hiring hall are paid from a
bank account to which the Employers and the International make
equal contributions. Personnel of the hiring hall is appointed and
controlled by the Committee, except for dispatchers, who, under the
contract, are to be selected by the International by means of elections,
but are subject to removal for cause by the Committee. The chief
dispatcher is in immediate control of the hall. The business of the
i The Respondents contend, inter alia, that the Trial Examiner ( a) erred in refusing
to grant a continuance to permit counsel to discuss the case with his clients , and (b) In
effect was guilty of bias and prejudgment. We find no merit in these contentions. As
to (a), the Respondents have not shown any prejudice resulting from the Trial Examiner's
ruling . Moreover , the complaint having issued in March , and the hearing having been
held in July 1950, the Respondents had been afforded ample time to prepare their defense.
In these circumstances , we find that the Trial Examiner did not abuse his discretion in
denying the request for a continuance. Saris Products Corp., 90 NLRB 132, cuff. 186
F 2d 502 ( C A 4). As to ( b), careful examination of the record does not reveal any
conduct by the Trial Examiner to support the Respondents ' allegation.
2 The individual Employers involved are listed in Appendix A of the Intermediate Report.
They are represented by an organization now known as Pacific Maritime Association
8 The Board considered this same contract in International Longshoremen's and Ware-
housemen's Union, 90 NLRB 1021, and held that by entering into this contract, which
granted a discriminatory preference in employment to its members , and by actively par-
ticipating in the enforcement of those provisions, the International violated Section-8 (b)
(2). However , at the outset of this proceeding , the General Counsel specifically stated
that the legality of neither the joint hiring hall system nor the contract was being
questioned herein.
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN 'S UNION1093
hall is mainly the dispatch of registered longshoremen,4 upon re-
quest of the Employers, who are required by the contract to obtain
all longshore help through the hall 5
Stafford and Sorce were both union members and registered long-
shoremen, who obtained employment through the hiring hall. Staf-
ford was expelled from the Union on June 1, 1949, because of
alleged violations of hiring hall rules. On June 7, the labor members
of the Committee moved that his registration be cancelled because
of the alleged violations. The Employers did not agree, but requested
additional evidence. However, on June 8, 1949, the dispatcher on
duty told Stafford that he was no longer a union member and there-
fore could not be dispatched. At subsequent meetings of the Com-
mittee in June 1949, the Stafford case was again considered. The
Employers took the position that Stafford was entitled to be dis-
patched the same as other union members. The labor members con-
tended that, as Stafford was no longer a union member, he was not en-
titled to preference under the contract, and sought the cancellation
of his registration. At the end of the meeting of June 21, 1949, the
employer representatives on the Committee told Stafford that so far
as they were concerned he was entitled to be dispatched the same as
other union members. But the dispatchers continued generally to re-
fuse to dispatch him.,, Stafford. sought help from both the Local and the
Employers. The president of the Local, Kearney, stated that it was
"the members' proposition" and, although he indicated that the ques-
tion of whether anything should be done for Stafford would be put to
the membership, it does not appear that any action was taken. Snyder,
the employer representative, told Stafford that the Employers did not
think that Stafford should be barred from longshore work, that they
would not cancel his registration, and that they would do their best
for him. However, Snyder eventually told Stafford in August and
September 1949, that nothing could be done for him in the Com-
mittee because it was equally paid for and operated by the Employers
and Unions.
Similarly, Sorce was called before a trial group of the Local early
in 1949 on charges relating to his work and conduct in the hall. While
this action was pending, the union representatives on the Committee,
on June 7, 1949, sought to cancel Sorce's registration because of these
4 Registration of longshoremen was instituted at the time the hiring hall was established
in about 1934. The maintenance of the registration list is a duty of the Committee, which
must pass upon all additions to and removals from the list . Nonregistered men may be
-dispatched , but they are considered casuals , and are dispatched only after all registered
men have been dispatched , or have refused the available assignments.
6 On the rare occasions when the hiring hall is unable to fill requests for personnel, the
Employers are informed that they are free to hire where they can The Employers are also
permitted , within limits, to reject personnel they deem unqualified.
6 Although Stafford was sent out a few times after his expulsion , the dispatchers, since
August 25, 1949, and to at least August 13, 1950, refused to dispatch him for the reasons
originally given.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charges. The Employers would not agree. On June 21, the union
representatives again sought. the cancellation of Sorce's registration
because of alleged rule violations for which Sorce had been cited be-
fore a Local grievance committee. While this was pending, the Union,
on August 10, 1949, expelled Sorce from membership, on grounds other
than nonpayment of dues. On the same date, the dispatcher refused
an assignment to Sorce, informing him that he was no longer a union
member and that there were orders from the office not to give him a
job. On August 11, 1949, Kearney, president of the Local, was acting
as dispatcher and refused to dispatch Sorce because ". . . you got
excused from the union. I got orders not to give you a job, so I gave
the order to the dispatchers not to dispatch you."
Thereafter, on August 16, 1949, the union representatives on the
Committee reported that,Sorce•had been expelled and, moved, that his
registration be cancelled. The Employers opposed the motion, and
the Committee remained in disagreement as to Sorce's status . Never-
theless, the dispatchers refused to dispatch Sorce, informing him in
several instances that they had to give preference to union members,
and in one instance refusing to send him out even though there was
no one else in the hall who sought the job then available.
It is manifest from the foregoing and the entire record that the
dispatchers' refusal to dispatch Stafford and Sorce constituted un-
lawful discrimination by the Employers. The hiring hall was jointly
operated and controlled by the International and the Employers, and
consequently, the conduct of the dispatchers, within the scope of their
authority, was attributable to the Employers. Although the dis-
patchers, in their actions with respect to Stafford and Sorce, disre-
garded the stated position of the Employers' representatives on the
Committee, this did not relieve the Employers of their responsibil-
ity, particularly where, as here, they took no active measures to
counteract such orders, and did not offer Stafford and Sorce employ-
ment directly, although aware that they were being denied longshore
work through the hall. That it would have been futile for either ap-
plicant to attempt to circumvent the hall and secure work directly from
the Employers is indicated by the entire hiring hall arrangement, un-
der which the Employers were obligated to secure all longshore per-
sonnel from the hall. It is further indicated by the statement of the
employer representative to Stafford, when the latter requested aid to
secure longshore work, that there was nothing that could be done for
him in the Committee, as it was operated jointly by the Employers
and the Union.7
7 Cf. Daniel Hamm Drayage Company, Inc., 84 NLRB 458, enfd., 185 F. 2d 1020 (C. A.
5), in which the Board held that the employer had in effect delegated the hiring of new
employees to a union , and that the employer 's refusal to hire new employees unless they
were referred by the union was violative of Section 8 (a) (3).
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 1095
It is also clear that the Local's orders to the dispatchers prompted
this discriminatory action by the Employers. However, the Respond-
ents assert that they did not thereby violate Section 8 (b) (2) -of the
Act because: (1) The Employers were jointly liable and therefore
were indispensable parties to this proceeding; and (2) the Employers
were not "caused," i. e., coerced, to discriminate, but acquiesced in the
dispatchers' conduct. They further argue that, in any event, the
International was not liable for the Local's conduct. We do not agree.
As to the contention that the Employers are necessary parties, a
similar issue was presented in National Union of Marine Cooks and
Stewards, CIO (George C. Quinley), 92 NLRB 877.11 For the reasons
fully stated in that case, we find the contention to be without merit.
And with respect to the alleged acquiescence of the Employers, this
factor, is without controlling significance. It is sufficient that the Local
successfully prompted the discriminatory action against Stafford and
Sorce, and by such conduct alone the Local clearly violated Section 8
(b) (2) and (1) (A) .a
Finally, as to the liability of the International for the Local's con-
duct, the basic longshore contract, covering the entire west coast, was
negotiated and executed by the Employers and the International and
provides for operation of the halls jointly by the Employers and the
International. While the International was therefore immediately
responsible for matters relating to the hiring hall, it in effect delegated
the handling of much of the day-to-day administration and enforce-
ment of the hiring hall contract to the Local. For example, the union
representatives on the Committee, who, under the contract, were to be
designated by the International, were in practice designated by the
Local. The dispatchers were also selected by the Local. And port
working rules, contemplated by the master contract, were negotiated by
the Local. It is thus apparent that in matters relating to the San
Francisco hiring hall, the Local was not a mere stranger, but rather was
engaged, together with the International, in a common enterprise.
The joint nature of this relationship between the International and
the Local was further demonstrated in the particular conduct relating
to Stafford and Sorce detailed above. Significantly, after the Local
effectively directed the dispatchers not to dispatch Stafford and Sorce,
8 See also Wisconsin Axle Division, The Timken -Detroit Axle Company , 92 NLRB 968.
9 Sub Grade Engineering Company , 93 NLRB 406 ; Air Products , Incorporated, 91
NLRB 1381.
The Respondents except to the Trial Examiner 's reliance, in his finding of violation,
of Section 8 (b) (2), upon the illegality of the 1948 contract between the Employers
and the International . Although the Board had passed upon that contract in a prior
proceeding (International Longshoremen 's and Warehousemen 's Union, 90 NLRB 1021),
the General Counsel disavowed any reliance thereon in stating the theory upon which
he was trying the instant case, and did not attempt to amend the complaint to allege
Illegality of the contract , We therefore find merit in the Respondents' exception in this,
respect , and note specifically that we do not rely herein upon the illegality of the 1948
contract . See Starrett Brothers and Eken, Incorporated , 92 NLRB 1757.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the International's representatives on the Committee did not disap-
prove or attempt to disavow the Local's action. Instead, in each case,
they sought vigorously to implement that action by canceling the reg-
istration of both longshoremen. Moreover, the dispatchers who actu-
ally participated in the discriminatory action were, under the hiring
hall arrangement, representatives of the International as well as of the
Employers.
In view of this joint venture relationship between the International
and the Local in matters concerning the hiring hall, we are of the
opinion that the Local's unlawful conduct was also attributable to the
International.- Accordingly, we find that the International and Local
were jointly and severally liable for violations of Section 8 (b) (2) and
(1) (A) ."
2. We shall adopt the Trial Examiner's recommendation that, the
Respondents be ordered to cease and desist from the unlawful conduct
found herein, and to take certain affirmative action, including notifying
the Employers that they withdraw objections to the dispatch of Sorce
and Stafford, posting of notices, and making Stafford and Soree whole
for any losses they suffered as a result of the discrimination against
them.
We do not, however, adopt his recommendation that the Respond-
ents be ordered to cease and desist from giving effect to the provisions
of the master contract because, as noted above, we believe that the legal-
ity of that contract is not properly before us in this proceeding. Nor
do we adopt the Trial Examiner's further recommendation that the
order herein be made applicable to the entire west coast. The record
here does not establish a planned program of discrimination which
would justify the extension of our order beyond the San Francisco
hiring hall .12
10 Sunset Line and Twine Company, 79 NLRB 1487 ; Smith Cabinet Manufacturing Com-
pany, Inc., 81 NLRB 886; Cory Corporation, 84 NLRB 972 ; Union Supply Company, 90
NLRB 436. The Local's conduct with respect to Stafford and Sorce was clearly within
the general area within which it had been empowered to act.
Contrary to the implication of our dissenting colleague, it is of no controlling signifi-
cance that the International 's contract with the Employers did not contemplate the
precise actions here taken by the Local . Rather it is sufficient , as noted above , that the
International conducted with the Local , a common enterprise on a matter of mutual con-
cern, in this instance the San Francisco hiring hall , and that the Local's conduct which
was specifically ratified by representatives of the International , was in pursuit of that
enterprise . Therefore , even though the particular actions of the Local may not have
been previously authorized by the International , the latter organization , the representatives
of which affirmed those actions , is liable therefor . Cf Sunset Line and Twine Company,
supra. See also Restatement Agency ( 1933 ) Sections 43, 94
11 In view of our finding herein that the Respondents have violated Section 8 (b) (1) (A)
by causing the refusal to dispatch Stafford and Sorce, we find it unnecessary to pass
upon the other violations of that section found by the Trial Examiner.
11 Cf. West Kentucky Coal Company, 92 NLRB 916 ; Bitner Fuel Company, 92 NLRB 953.
The Respondents submitted a motion to reopen the record in which they contend that
they have no fixed intent to defeat the purposes of the Act by preventing Stafford and
Sorce and others like them from working, as shown by the facts that Stafford and Sorce
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION1097
Order
Upon the entire record in these cases and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, International Longshore-
men's and Warehousemen's Union, and International Longshoremen's
and Warehousemen's Union, Local 10, their officers, representatives,
agents, successors, and assigns, shall:
(1) Cease and desist from :
(a) Causing or attempting to cause the Employers, or any of them,
or their officers, agents, successors, or assigns, through the dispatchers
in the San Francisco hiring hall, to deny employment to any employee
or prospective employee of any of the Employers, because he is not a
member in good standing of the Respondents, except to the extent
permitted by Section 8 (a) (3) of the Act.
(b) In any other manner causing or attempting to cause the Em-
ployers, or their officers, agents, successors, or assigns, to discriminate
against employees or prospective employees in violation of Section 8
(a) (3) of the Act.
(c) Restraining or coercing employees or prospective employees of
the Employers, their officers, agents, successors, or assigns, in the
exercise of their right to engage in or to refrain from engaging in any
and all of the concerted activities guaranteed to them• by Section 7
of the Act, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized by Section 8 (a) (3) of the Act.
(2) Take the following affirmiative action, which the Board finds
will effectuate the policies of the Act :
(a) Notify the Employers, the San Francisco Port Labor Relations
Committee, and the dispatchers in the San Francisco hiring hall, in
writing, and furnish copies thereof to Roosevelt Stafford and Joseph
Sorce, that they have no objection to the dispatch of Roosevelt Staf-
ford and Joseph Sorce, without regard to their membership or non-
membership in the Respondents or in any other labor organization, and
without prejudice to their seniority or other rights and privileges,
except to the extent authorized in Section 8 (a) (3) of the Act.
(b) Make whole Roosevelt Stafford and Joseph Sorce for any loss of
pay they may have suffered as a result of the discrimination against
them in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
are now being dispatched and are earning as much as average longshoremen . The motion
is denied . In view of the unfair labor practices committed , we believe that the purposes
of the Act will be effectuated by the issuance of our order herein. See William A Mosow,
92 NLRB 254. However, if dispatching of Stafford and Sorce has in fact been resumed,
that circumstance will, of course , be considered at the compliance level.
1 098 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
(c) Post in conspicuous places at the business offices of the Respond-
ents, in the San Francisco hiring hall, and in all places where notices
or communications to their members are customarily posted, copies of
the notice attached hereto and marked Appendix A 13 Copies of said
notice, to be furnished by the Regional Director for the Twentieth
Region, shall, after being duly signed by the Respondents' represent=
atives, be posted by the Respondents immediately upon receipt thereof
and maintained for a period of sixty (60) consecutive days thereafter.
Reasonable steps shall be taken by the Respondents to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Mail to the Regional Director for the Twentieth Region signed
copies of the notice attached hereto as Appendix A, for posting, the
Employers willing, at their offices, and in all other places where no-
tices to employees are customarily posted by said Employers. Copies
of said notices, to be furnished by the Regional Director for the Twen-
tieth Region, shall, after being signed as provided in paragraph 2 (c),
be forthwith returned to the Regional Director for said posting.
(e) Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10) days from the date of this Order, what steps they
have taken to comply herewith.
MEMBER MURDOCK, dissenting in part :
I agree fully with the majority's decision that Local 10 violated
Section 8 (b) (2) of the amended Act by causing the Employers
to discriminate against the complainants. On the record in this case,
however, I cannot agree that the International is equally responsible
with the Local for the conduct of the dispatcher in refusing to dis-
patch Stafford and Sorce.
Of the facts detailed in the majority's opinion this much, at least,
is clear. The Port Labor Relations Committee to which the Employ-
ers had delegated their power to hire longshoremen was the controlling
authority at the San Francisco hiring hall. Although appointed by
the Local, the dispatchers acted on behalf of the Committee in dis-
patching qualified longshoremen. Both Stafford and Sorce were reg-
istered at the hiring hall and were entitled to employment. The dis-
patchers, however, without authority from the Committee and for dis-
criminatory reasons refused to dispatch these complainants. For the
reasons stated in the majority's opinion I agree that such conduct con-
-stituted unlawful discrimination by the Employers. It is clear that
the dispatchers would not have acted in this unauthorized and dis-
-criminatory manner but for the overt action of the Local in prompting
them to deny employment to the complainants. I have no difficulty
is In the event this Order is enforced by decree of a United States Court of Appeals,
-there shall be inserted before the words "A Decision and Order ," the words "A Decree
-of the United States Court of Appeals Enforcing."
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 1099
therefore-in finding, as the majority-do, that the Local "caused" within
the meaning of Section 8 (b) (2) the discriminatory result. But the
majority go - further and-on the general theory that the International
and Local were engaged in a "joint venture " find that the Interna-
tional , as well as the Local , "caused" discrimination by the Employers.
I cannot ascribe to Section 8 (b) (2) so broad a scope of prohibited
conduct that labor organizations may be found guilty of unfair labor
practices merely on the basis of associations between them for the
purposes of collective bargaining. Certainly , under their general
working agreement the International delegated much of its contractual
authority to the Local . This is fairly common practice among inter-
national labor organizations and their local affiliates . But it does not
follow, as the majority suggest in footnote 10, that the Local 's conduct
with respect to Stafford and Sorce was "within the general area within
which it had been empowered to act. " It would seem obvious that
the International could not delegate authority it never had. Under
the terms of the contract all personnel , including dispatchers, were
subject to control by the Committee only and were to be governed
by its rules and regulations . The International was never authorized
to instruct the dispatchers in any matter relating to the San Francisco
hiring hall . Its voice could be raised only within the Committee and
in the instant case was unsuccessfully raised to secure the cancellation
.of the complainants ' registration . Unless the majority is prepared
to find, as apparently it is not, that this action of the International
constitutes per se "cause" within the meaning of Section 8 (b) (2),
I see no other competent or material evidence in the record to support
the conclusion that the International "caused" the dispatchers to act
in a discriminatory manner.
The Board has already found that - the term "cause" as used in
Section 8 (b) (2) is broad enough to include a mere request 14 It now
finds that one labor organization can "cause " a specific act of unlaw-
ful discrimination through the unauthorized conduct of another with
which it is engaged in a common enterprise to administer a contract.
I think causation , whatever it may mean, means more than that. There
is no evidence in the record that the International approached, re-
quested or attempted to exert pressure on the dispatchers to engage
in discrimination . Similarly, there is no evidence that the Local was
advised by the International with respect to Stafford and Sorce. The
only action taken by the International was that of the union members
on the Committee who voted to cancel the complainants ' registration.
It may be inferred from this action that the International was in ac-
cord with the Local 's position that Stafford and Sorce were not entitled
14 Sub-Grade Engineering Company, supra . Although I dissented in that case I consider
myself bound by the majority's decision.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be dispatched 15 In my opinion however, it cannot further be found
as a matter of fact that the International thereby became a party to
and equally responsible for the Local's action in ordering the dis-
patchers not to give employment to these individuals. While the
International attempted to secure its objective through the machinery
of the contract, the Local's instructions to the dispatchers were outside
of and, indeed, contrary to the express provisions of that contract.
I do not believe that the gap between the conduct of the International
and that of the Local can be bridged by assumptions of fact based
upon general inferences. I would prefer to rely upon specific and
substantial evidence which I do not find here.
On the basis of the foregoing I conclude that the Local independ-
ently took action unlawfully to deprive complainants of employment
and I would find that its conduct is not attributable to the Interna-
tional.
MEMBER STYLES took no part in the consideration of the above
Decision and Order.
Appendix A
NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS OF
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION,
AND INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION,
LOCAL 10
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, we hereby notify you that :
WE WILL NOT cause or attempt to cause the Employers, or any
of them, or their officers, agents, successors, or assigns, through
the dispatchers in the San Francisco hiring hall, to deny em-
ployment to any employee or prospective employee of any of
the Employers, because he is not a member in good standing
of the Respondents, except to the extent permitted by Section
8 (a) (3) of the Act.
WE WILL NOT in any other manner cause or attempt to cause
the Employers, or their officers, agents, successors, or assigns,
to discriminate against employees or prospective employees in
violation of Section 8 (a) (3) of the Act.
15 The majority , however, view the vote of the International 's representatives in com-
mittee as having "specifically ratified" the Local 's unlawful conduct. I do not believe
that this is a reasonable inference and, in my opinion , it should not be substituted for
direct and substantial evidence of the -International 's responsibility for the dispatchers'
actions.
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION1101
WE WILL NOT restrain or coerce employees or prospective em-
ployees of the Employers, their officers, agents, successors, or
assigns, in the exercise of their right to engage in or to refrain
from engaging in any and all of the concerted activities guaran-
teed to them by Section 7 of the Act, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act.
WE wiLL make whole Roosevelt Stafford and Joseph Sorce for
any loss of pay suffered as a result of the discrimination against
them. '
We have no objection to the dispatch of the above-named individuals
without regard to their membership in the Unions, and without
prejudice to their seniority or other rights and privileges, except
to the extent authorized in Section 8 (a) (3) of the Act. We have
given the Employers notice to this effect.
INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION.
(Labor organization)
Dated------------- By-----------------------------------------
(Representative ) ( Title)
INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION, LOCAL 10.
(Labor organization)
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.
Intermediate Report and Recommended Order
Mr. Nathan R. Berke, for the General Counsel.
Gladstein, Andersen, Resnor & Sawyer, by Mr. Norman Leonard and Mr. Lloyd
E. McMurray, of San Francisco, Calif., for the Respondents.
STATEMENT OF THE CASE
Upon the basis of a second amended charge filed on December 8, 1949, by
Roosevelt Stafford, an individual, in Case No. 20-CB-87, and a second amended
charge filed February 8, 1950, by Joseph Sorce, an individual, in Case
No. 20-CB-89, the General Counsel for the National Labor Relations Board,
hereinafter called the General Counsel and the Board, by the Regional Director
for the Twentieth Region (San Francisco, California), issued an order dated
March 14, 1950, consolidating the above cases and on the same day issued a
consolidated complaint against International Longshoremen's and Warehouse-
men's Union, hereinafter called the ILWU, and International Longshoremen's
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Warehousemen's Union, Local 10, CIO, hereafter called-Local 10, both organi-
zations also being called collectively the Unions or the Respondents, alleging
that said Respondents had engaged in and were engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (b) (1) (A) and
8 (b) (2) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act. Copies of the respective second
amended charges and the consolidated complaint, together with copies of the
order consolidating the cases and notice of hearing, were duly served upon
the parties.'
With respect to the unfair labor practices, the consolidated complaint alleged
in substance that Respondents have caused the Waterfront Employers Associa-
tion of the Pacific Coast, hereafter called WEA, and its successor, the Pacific
Maritime Association, hereafter called the PMA, acting as the agents of their
member-companies, hereafter collectively called the Employers or employer-
members, through the medium of a hiring hall maintained and operated jointly
by the Respondents and the Employers at the port of San Francisco, California,
to refuse to dispatch Roosevelt Stafford since June 9, 1949, and Joseph Sorce
since August 10, 1949, for longshore work on the San Francisco, California,
waterfront because each of them was no longer a member in good standing of
the Unions for reasons other than his failure to tender periodic dues, and that
by such acts the Respondents have caused and are causing the Employers to
discriminate against employees in violation of Section 8 (a) (3) of the Act,
and have thereby restrained and coerced, and are restraining and coercing,
employees in the exercise of rights guaranteed in Section 7 of the Act, and that
by such conduct the Respondents have engac;ed in and nie engaging in unfair
labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A)
of the Act.
The Respondents filed no answer to the consolidated complaint. At the
opening of the hearing they requested and received permission from the Trial
Examiner to file, before the end of the hearing, a formal answer which their
counsel stated would contain a general denial of all material allegations in the
complaint. However, Respondents failed to file a formal answer, their counsel
stating in his closing remarks that Respondents intended to allow the state-
ment of their defense on the first day of the hearing to stand in lieu of a formal
answered. Both Respondents participated in the hearing, and all parties
litigated the issues as though a formal general denial of the consolidated
complaint had been filed.
Pursuant to notice, a hearing was held at San Francisco, California, on
July 25, 26, and 27, 1950, before the undersigned Trial Examiner duly designated
I
The formal record and the stipulated testimony of Mary Segawa , an employee of the
Twentieth Regional Office of the Board shows that : Copies of the above papers were mailed
by that employee in clue course to the ILWU by registered mail, with return receipt
requested , she received from the San Francisco post office a return receipt, containing
the same registry number as placed on the registered letter and indicating receipt of the
letter by the ILWU ; that receipt was lost or misplaced , and the same employee then
made inquiry of the post office regarding its delivery of the registered letter , and received
an official printed form from the post office in reply , indicating that the registered letter
with the registry number 915513 had been received by the addressee, the ILWU, on
March 15, 1950 . Although the ILWU counsel raised the question of sufficiency of proof
of service on that Respondent , claiming proper proof of service was a jurisdictional matter,
he refused to admit or deny that the ILWU had received the papers contained in that
registered letter. However, the ILWU did not raise that question later at the hearing
or make any motions addressed to the consolidated complaint on that ground. Both
Respondents litigated the issues raised by the consolidated complaint on the merits. Under
the circumstances , I find that the papers above mentioned were duly served on the ILWU.
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION11O3
by the Chief Trial Examiner. The General Counsel and the Unions were
represented by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
pertinent to the issues was afforded all parties.
At the outset of the hearing, the Respondents filed and argued formal motions
to abate the proceedings on the ground of the pendency of an unfair labor
practice proceeding before the Board in Case No. 20-CB-19 involving the same
issues of law and fact presented in this case' In support of the motions, Re-
spondents argued that as a matter of administrative expediency and in order to
save time and money to the Government and all parties, the hearing in this case
should be suspended until the issue in the preceding case had been fully litigated
before, and decided by, the Board. When the motions were argued before the
Trial Examiner on July 25, 1950, it appeared that the Board had on July 20
issued its decision in Case No. 20-CB-19 and a companion case, No. 20-CB-38.'
While Respondents recognized that the issuance of that decision constituted the
Board's disposition of the prior case, they still insisted that, as a matter of
administrative discretion, the Trial Examiner should suspend the hearing in
the present case until a final adjudication of the issues in the prior case on
judicial review. The Trial Examiner denied the motions to abate.
During the argument on the motions to abate, the General Counsel stated that
the legality of the joint hiring hall system operated by the Unions and the
Employers was not being attacked in this proceeding. On the basis of that
statement, Respondents moved at the beginning of the hearing to strike from
the complaint'all references to the hiring hall system. That motion was denied.
On the same basis, Respondents also moved to dismiss the complaint, arguing
that the Board in the previous case had decided that the hiring hall system, as
such, was not illegal, and that the present complaint did not state a cause
of action if it was based upon the operation of that system. General Counsel
argued in opposition that the hiring hall system was mentioned in the complaint
as a preface to background proof of the scope and operation of the system under
which the alleged discrimination occurred The Respondents' motion to dismiss
the complaint on this ground was denied.
At the close of the General Counsel's case Respondents moved to dismiss the
complaint for lack of proof. The Respondent ILWU made'a separate motion to
dismiss as to that organization upon the ground of lack of any proof involving
the ILWU in the operation of the hiring hall or the events leading to and result-
ing in the alleged discrimination against the charging parties. Both motions
were denied without prejudice to renewal at the close of the hearing.
Following denial of their motions to dismiss, which were made on July 27,
1950, the third day of the hearing, Respondents introduced oral and docu-
mentary testimony in support of their defense. After one witness for Re-
spondents had been fully examined and cross-examined, and certain documentary
proof offered by Respondents was rejected by the Trial Examiner, counsel for
Respondents stated that he had no further witnesses to present "at this time"
and asked for a continuance of the case until Monday, July 31, 1950, or a later
2 The record indicates that seven copies of the motions had been filed with the Board
at Washington, D. C., on May 18, 1950, and single copies were forwarded at the same
time to the Regional Director for the Twentieth Region. Since the motions were not
properly filed with the Regional Director under Rule 203 24, the Board declined on May
31, 1950, to act on the motions Inaspmch as the Regional Director had some notice of
the nature of the motions, the' Trial Examiner treated them as having been filed de novo
at the hearing under Rule 203.24.
3 90 NLRB 1021.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date, upon the ground that the president and secretary of Local 10 had been
unavailable to counsel for consultation since before the beginning of the hear-
ing, having been engaged in Washington, D. C., in conferences with Army and
Navy officials on water-front security problems, that those officers had returned
to San Francisco on July 26 and had been engaged in conferences with local
officials on the same subject ever since. When questioned by the Trial Examiner,
Respondents' counsel could give no assurance that these officers would be avail-
able for conference in time to permit him to proceed with the hearing on July
31. The record indicates that the second amended charge, consolidated com-
plaint, order consolidating cases, and notice of hearing for July 25, 1950, were
served upon Local 10 on March 14, 1950, and on the ILWU on March 15, 1950,
from which it is clear that both Respondents had over 4 months in which to
consult with counsel and prepare for trial of the case. Counsel for Respondents
did not indicate whether he intended to use the absent officers of Local 10 as
witnesses, nor did he indicate what further witnesses, if any, he would need,
or what specific proof he intended to offer through them, after consultation with
the union officials. Respondents were apprised on the first day of the hearing
in the course of the argument on their motions to abate, of the exact theory
on which General Counsel was trying the case and the general nature of the
facts he intended to prove. From these facts it appears the Respondents were
given every reasonable opportunity to prepare and present their case, and that
their request for continuance was not timely. In the opinion of the Trial
Examiner they offered no adequate reason for a continuance at that late hour
in the hearing. The Trial Examiner therefore denied the motion for continu-
ance.' The Respondents offered no further proofs thereafter.
At the close of the case General Counsel moved for default judgment on the
complaint upon the ground that no formal answer had been filed by Respondents
before the close of the hearing. The Trial Examiner denied this motion
inasmuch as General Counsel had been advised by Respondents' counsel on the
first day of the hearing that the Respondents denied all material allegations of
the complaint, and both parties tried the case on that basis. A motion of
General Counsel to conform the pleadings to the proofs as to names , dates, and
other minor variances was granted without objection. The Respondent ILWU
renewed its motion to dismiss the complaint as to that organization upon the
grounds previously stated ; decision on that motion was reserved ; the motion
is disposed of by the findings and conclusions in this Report.' Respondents also
renewed their motion to strike from the complaint all references to the hiring-
hall system and its operation upon grounds previously stated ; decision on that
motion was reserved ; it is now denied for reasons set forth in this Report.
Respondents also renewed their motions to abate the proceedings, which were
denied by the Trial Examiner.
The General Counsel presented oral argument before the Trial Examiner at
the close of the hearing. The Respondents waived the opportunity afforded
them to present similar oral argument. All parties were afforded an opportunity
to file briefs and proposed findings of fact and conclusions of law, or both. The
General Counsel has filed a brief with the Trial Examiner which has been given
consideration in the preparation of this Report.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
4In deciding a motion of this sort, the Trial Examiner must take into consideration
not only the situation of the Respondents, but the convenience and rights of other parties,
and the fact that the proceeding is under a statue involving the public interest. See
Ronni Parfum, Inc., 8 NLRB 323, enfd. 104 F. 2d 1017 (C. A 2) , Mission Oil Company,
88 NLRB 743.
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 1105
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
The WEA is an employers' association organized on June 22, 1937, under the
laws of the State of California as a nonprofit corporation, which was designated
by the shipping company agents, and shipping, stevedore and terminal coin-
panies (Employers) whose names appear in Appendix A attached to this Re-
port, as their agent for the purposes of bargaining collectively with labor
organizations concerning rates of pay, wages, hours of employment, and other
conditions of employment of employees of said member-companies engaged in
performing longshore work, as hereinafter defined, on the Pacific Coast. Oh
June 3, 1949, the 1'MA, a nonprofit corporation organized under the laws of
California, became the successor to WEA by merger or consolidation with other
employer associations, and since that time the 1'MA, as an employers' associ-
ation, has been acting as agent for the same member-companies listed in Appendix
A, for the same purposes as its predecessor.
During 1949, each of the Employers was engaged in the loading, unloading,
or handling of water-borne cargo at various ports on the Pacific Coast and,
in the course and conduct of its operations, loaded, unloaded, or handled a
substantial amount of cargo in the course of transportation between various
States of the United States, between the United States and noncontiguous ter-
ritories or possessions. and between the United States and foreign countries.
During the year 1949 approximately 17,400,723 tons of cargo was shipped
from, into, and handled by the Employers at the various ports on the Pacific
Coast. and to and from various foreign ports over various world routes, generally
referred to as the off-shore ti ade, and to and from various ports on the East
Coast. the Territories of Alaska and Hawaii, South America, China, and Aus-
tralia. generally referred to as the coastwise trade. During the year 1949 ap-
proximately 15,000 longshoremen, car loaders, and other water-front employees
were employed by the Employers The list of employer-members set forth in
Appendix A is substantially the membership of the WEA and PMA during the
year 1949.
Upon the basis of the foregoing facts, and a consideration of earlier findings
of the Board relating to the business of the WEA, the PMA, and their employer-
members.` it is clear, and I find, that the WEA and PMA, and their employer-
members listed in Appendix A hereto, are engaged in commerce within the
meaning of the Act.
II 1HE LABOR ORGANIZATIONS INVOLVED
International Longshoremen's and Warehousemen's Union, and International
Longshoremen's and Warehousemen's Union, Local 10, CIC, are labor organi-
zations admitting to membership employees of the Employers.
III. THE UNFAIR LABOR PRACTICES
A. Introductory facts
This case arises out of the operation of the hiring hall for the dispatching of
longshoremen and other water-front employees in the port of San Francisco,
I The above findings are based upon the stipulated testimony of James A Robertson,
secretary of the P\IA, and previously secretary of the predecessor organization, WEA.
6 See IVatei front Employers' Association of the Pacific Coast, et al , 71 NLRB 80, 71
NLRB 121 , International Longshoremen's & 1Vaiehonsemen's Union, C70, et al (1Vater-
front Employers' Association of the Pacific Coast), 90 NLRB 1021.
953841-52-vol 94--71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jointly maintained and operated during 1949 by the Employers and the Unions
through a joint Port Labor Relations Committee, under the terms and provisions
of a basic longshore agreement made between the Employers and the Unions
under date of December G, 1948 7 The circumstances of the creation of the
hiring hall, the background agreements under which it was operated and de-
veloped in past years, the exact scope and operation of the hiring-hall system
in the port of San Francisco under the terms and provisions of the Contract,
and the legal effect of the provisions of that Contract, have been considered by
the Board in the previous case involving the ILWU, (then affiliated with the
CIO), other labor organizations, and these Employers, 90 NLRB 1021. The
Board decided in that case that Respondent ILWU, among others, had violated
Section 8 (b) (2) of the Act by entering into the Contract which, among other
things, specifically accorded preference in employment to members of the Re-
spondents, and by actively participating in the actual enforcement of that pro-
vision, as a result of which members of the Respondents there have been given
preference in employment over nonmembers.
The particular issues in this case are whether the failure of two registered
longshoremen, Roosevelt Stafford and Joseph Sorce, to receive longshore work a
through the joint hiring hall in the port of San Francisco, because of their ex-
pulsion from Respondent Local 10, was due to the action and conduct of the
Respondents and their agents, and whether the Respondents by such conduct
caused or attempted to cause the Employers to discriminate against the two
longshoremen in violation of the Act, thereby constituting a violation by Respond-
ents of Section 8 (b) (2) of the Act The consideration and resolution of this
issue requires a preliminary discussion of the scope and operation of the hiring
hall in the port of San Francisco.
Since 1934 a central hiring hall has been maintained and operated by the
ILWVL' and the WEA and PIIA on the San Francisco water front under super-
vision of a joint long-shore labor relations committee which consists of equal
numbers of employer and union representatives Under the Contract that com-
mittee in each port is known as a "Port Labor Relations Committee" The
expenses of the hiring hall are shared equally by the Employers and the Unions
through a joint bank account to which both parties make equal contributions.
The personnel who operate the hiring hall, with the exception of dispatchers,
are determined and appointed by the Port Labor Relations Committee. The
dispatchers, however, are elected from the membership of Respondent Local 10
by a majority vote of the members of that Union, and they hold office for the
duration of the basic Conti-act' At the San Francisco hiring hall there are
six dispatchers, including- a chief and one assistant chief dispatcher, whose
salaries are paid by the Port Labor Relations Committee. The hiring hall is
under the immediate supervision and control of the chief dispatcher.
T General Counsel's Exhibit No 4, hereafter called the "Contract."
8 As defined in the Contract, section 1 (a), longshore work consists of "all handling of
cargo in its transfer from vessel to first place of rest, and vice versa , including sorting
and piling of cargo on the dock, and the direct transfer of cargo from vessel to railroad
car or barge, or vice versa, when such work is performed by Employees of the companies
parties to this agreement ." Under section 1 (c), winch drivers are included in the categories
of longshoremen covered by the Contract.
9 Under the constitution and bylaws of Respondent Local 10, the dispatchers are con-
sidered in the category of "miscellaneous employees" of the Union (Article IV, section 2).
Dispatchers are nominated by petition, like other officers, committeemen. and miscellaneous
employees of the Union, once each year, and, must be elected by a majority of all votes cast
during an election held in December of each year (Article V, section 1 (a) . Aiticle VI,
section 6).
INTERNATIONAL LONGSHOREMEN'S AND WARE`IIOUSEMEN'S UNION 1107
B. The dispatching procedures
Under the Contract, the San Francisco Port Labor Relations Committee has
control over the registration of longshoremen in all categories of work in that
port, including the power to add or subtract men from the registry lists as may
be necessary. Registered longshoremen consist of regular gangs and plugboard
men. Inasmuch as this case involves only the refusal of the dispatchers to
dispatch to plugboard men, the procedure in handling only that category of
longshoremen uu ill be considered
Plugboard men report to the hiring hall at the regular dispatching hours,
between 6: 30 and 8 30 a. in for day work, and between 4 and 6 p. in. for night
work. Separate boards containing consecutively numbered holes are maintained
at the hall, covering day and night work, and the various job classifications of
longshore work, as e g., dockmen, hold men, tractor ("jitney") drivers, lift
truck drivers, winch drivers, etc. By inserting the plug at the first available
place on the board which corresponds to his preference for day or night work
in a desired classification, the plugboard man selects the job for which he wishes
to be dispatched Special qualifications, established by the Port Labor Relations
Committee, as .'ell as prior approval of the Committee, are required for the jobs
of gang boss, winch driver, and lift truck driver, and only those who have been
qualified may plug in for those jobs.
The Employers notify the dispatcher, in advance of the dispatching hours, of
the number of men they will require in each category. When the time for dis-
patching arrives, the dispatcher removes the plugs from the various boards in
-n•der of numerical sequence, and notifies the longshoreman whose plug has
been removed, over a public address system, that he is about to be dispatched.
The first man to be so dispatched in each job classification is the one who has
"plugged in" first on the appropriate board The next man dispatched in the
same classification is the one who has "plugged in" next in order, etc. Thus,
'otation of dispatching is accomplished. The man to be dispatched reports to
the dispatching window, obtains a slip containing his orders , and then presents
himself at the job to which he has been assigned. A plugboard man failing to
respond, after being called over the public address system three times, forfeits
the opportunity to work the remainder of that day, unless excused by the
dispatcher.
If, after all available plugboard men have been dispatched, jobs are still
unfilled, these jobs are, in practice, filled by the dispatcher from among members
of locals affiliated with the Union, which have been notified of the job oppor-
tunity. On the rare occasion when the dispatcher is unable to fill all remaining
jobs from these sources, he notifies the Employers, who are then at liberty to
hire from any source. Nonregistered longshoremen, hired in this manner, are
permitted to work the day they are dispatched, but may not work the next day if
it registered man is available who claims the job 10
C. The refusal to dispatch Roosevelt Stafford
Roosevelt Stafford, a registered longshoreman, became a member of Respond-
ent Local 10 in October 1944 and remained a regular member of that organization
until his expulsion in June 1949. During this period he paid his dues regularly,
mid at the time of his expulsion his dues were paid to July 1, 1949. Stafford
had worked as a registered longshoreman, performing the work of a winch
io The above findings are based on the stipulated testimony of B. Robert Snyder, and
section 7 ( a) (1), (b), and ( c) of the Contract of December 6, 1948.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
driver, in another port before working in San Francisco and joining Local 10;
at San Francisco he was registered for work on deck as a winch driver,' in the
hold and on the sugar dock, and was dispatched at various times from those
sections of the board in the hiring hall. During his membership in Local 10 he
was a "plug board" man, holding plug number 64823. After his expulsion from
the Union lie continued as a registered longshoreman on the registry lists of the
San Francisco Port Labor Relations Committee up to and including the date
of the hearing.
Sometime prior to June 1949 Stafford was brought before a trial committee of
Local 10 on charges that he had violated certain hiring-hall rules in 1948, to wit,
that lie had worked over the maximum number of port hours allowed by the Port
Labor Relations Committee during the middle of 1948, and that he had worked
<,s an extra boss in the same pen nod although not approved by the Committee for
work in that category, and that on one occasion, ill July 1948, he had threatened
the chief dispatcher. The trial committee found Stafford as charged.
He appealed to the membership which voted to expel him from the Union on
June 1, 1949.
On June 8, 1949, Stafford plugged in the "hold" and "sugar dock" sections of
the board at the hiring hall. When his plug was called in the usual course, he
answered the call by reporting to the window of chief dispatcher "Andy" Ander-
son for a work assignment. Anderson told him that he was not a member of the
Union and could not be dispatched Anderson held his plug until after 6 p. ill ,
when the dispatching was completed, and then returned it to Stafford, who
plugged it back in the board. On June 9, 1949, his plug being in the same sections
of the board, Stafford's number was called, but when lie reported to Anderson.
the latter again refused to dispatch him, giving the same reasons as the day
before.
On June 10, 1949, Stafford's plug was called, and dispatcher Hirschmann sent
him out on a job where he worked with a gang until midnight. At that time
the gang was ordered to report to another terminal for work, but at the same
time the gang boss told Stafford to go back to the hiring hall, saying, "That'si
all for you, that's the orders I got from the hall." Stafford did not work on,
the new assignment.
After June 10 Stafford continued to plug the "sugar dock" board daily, but
his number was not called between June 11 and July 14, 1949, because there
were no sugar cargoes to be handled at the port in that period On July 14 and 1:i,
1949, his plug was called but dispatcher Manning, who was on duty both days,
refused to dispatch him, stating "You are not a member of the Union " From
July 16 to August 23, 1949, his plug was not called for lack of sugar cargoes to
be handled. Stafford was called and dispatched to jobs by dispatcher Kirby
on August 23, 24, and 25 Since the latter date and as late as July 25, 1950, Staf-
ford has plugged the "sugar dock" board regularly, his number has often been
called, but he has always been refused assignment to any jobs by the dispatchers
for the same reasons previously given him by dispatchers Anderson and Manning.
Shortly after he was expelled from the Union and had already been refused
work assignments by the dispatchers, Stafford had a talk with James Kearney,
then president of Local 10, in his office above the hiring hall. When Stafford
asked Kearney whether or not he was going to put Stafford back to work, Kearney
replied, "Well, that's the Union, that's the members' proposition"; however,
he said he would try to help Stafford About a week later, when Stafford made
the same inquiry of him, saying he needed work, Kearney said he would take it
up at the nett membership meeting and try to "get me back." The record does
not indicate that Kearney did anything further in the matter, or that Stafford
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION1109
was ever reinstated to membership in Local 10, but it is clear that, except for
the instances in July and August 1949, stated above, Stafford has never been
dispatched for longshore work on the San Francisco water front since his expul-
sion from the Union.
Following his expulsion from the Union, the union members of the Port Labor
Relations Committee made a motion at a committee meeting on June 7, 1949, to
cancel Stafford's registration as a longshoreman for the violations of the hiring-
hall rules mentioned above. After hearing the Union's position on each of the
charges and Stafford's replies thereto, the Committee held the case over ,to the
next meeting for the production of additional evidence and to permit the Em-
ployers to review the facts already heard
At the committee meeting of June 14, 1949, additional testimony of union
witnesses and Stafford on one of the charges was heard. After some argument
between the union and employer members of the Committee, the Employers stated
that Stafford had admitted infractions of the rules for which some disciplinary
action was probably due, but that they did not feel the union charges justified
cancellation of his registration On the motion for cancellation, the three
employer members voted "No," the three union members voted "Yes," thus
creating a deadlock The Employers that stated that Stafford was still a regis-
tered longshoreman as far as the Port Labor Relations Committee was concerned.
In answer, 'the union took the position that "Stafford is not a member of the
Union since June 1, 1949, and has been dropped under the constitution of the
Union and no longer carries a book. therefore, is not entitled to preference of
employment under Section 7 of the Master Agreement."
At the committee meeting of June 21, 1949, the Employers iestated their
position to the effect that (1) Stafford was entitled to be dispatched along
with other union members in good standing, and (2) that the Union had no
right to discipline Stafford, as it was the function of the Committee to discipline
longshoreman for infi actions of its rules, except where the power to discipline
is given to the Union under section 14-F of the Contract : under that section
the Union is empowered to expel a member only for deliberate repeated offenses,
but Stafford had not been proven guilty of such offenses." The Employers also
pointed out that the infractions charged against Stafford by the Union were
old, there was no record of any official complaints thereon against Stafford
filed with the Committee, nor was there any evidence that he had been warned
about violating rules, or that he had deliberately defied such warning The
union members maintained their original stand that his registration should be
canceled, and the Committee remained deadlocked on that issue. At the end
of the meeting, Stafford requested clarification of his status, and the Employers
stated that so far as they were concerned, he was entitled to work and to
he dispatched in the same manner as other union members.
At the committee meeting of June 28, 1949, the employer and union members
maintained their previous positions, and no further action was taken by the
Committee at that meeting or later on Stafford's case. The position of the
Union stated at the meeting of June 14, 1949, was openly publicized to its
members through its weekly Longshore Bulletin of June 24, 194912 After the
June meetings of the Committee, the Employers did not change their position
regarding the status of Stafford. During the following months, Stafford had
That section also contenipl.ites that in cases of deliberate repeated offenses, the
Employers will file a complaint with the Union, which must act thereon and advise the
Committee of its decision The record does not disclose that the Employers ever filed
complaints against Stafford with the Union
12 General Counsel's Exhibit No 20
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several discussions with Snyder, an official of the PMA and also recording sec-
retary of the Committee, in which he sought Snyder's help in securing longshore
work to provide for his family and to prevent the loss of his home. Snyder
told him that the Employers did not agree with the Union that Stafford had
committed offenses warranting his debarment from water-front work, that
they would not cancel his registration, and would do the best they could for
him. However, in conversations in August and September 1949. Snyder told
Stafford in effect there was nothing further he could do to help Stafford in
the Committee, as it was equally operated and paid for by the Employers and
the Union.1e
D. The refusal to dtispatch Joseph Sorce
Joseph Sorce is and has been since 1941 it longshoreman registered with the
San Francisco Port Labor Relations Committee. He is a plugboard man, holding
plug number 6860. He joined Respondent Local 10 in 1940 and paid his dues
regularly tip to December 31, 1949. It was his practice to pay his dues in
advance, and he paid his dues for the last 3 months of 1949 on August 8, 1949.
He was expelled from the Union as set forth hereafter on August 10, 1949.
About a month later, Local 10 mailed him a check covering the dues he had
paid in advance for the last 3 months of 1949, but Sorce returned the check
to R. J. Erkkila, the recording secretary of the Local, by registered mail. Sorce
visited the union office in January 1950 and offered to pay his dues for that
month, but his record card had been removed from the files, and Bottani, the
current recording secretary, told him he could not pay any dues as he was
no longer a member of the Union.
Prior to his expulsion from the Union on August 10, 1949, Sorce was dis-
patched regularly from the hiring hall for work in accordance with the dis-
patching procedure outlined above. Sorce had his plug in the night "hold"
board on August 10, 1949; his number was called in the usual course but when
he approached the dispatcher's window, chief dispatcher Anderson said, "You
are no longer a member. You got a floater out of the union and I got orders
from the office not to give you a job" ; Anderson kept his plug and gave it back
to him about 6 p m, after dispatching hours, whereupon Sorce put it back
in the "hold" board." On August 11, 1949, James Kearney, then president of
Respondent Local 10, was acting as dispatcher and refused to dispatch Sorce
when his plug was called ; Kearney gave his plug back to him after 6 p. m. that
night. Shortly thereafter Sorce spoke to Kearney in his office above the hiring
hall about Kearney's refusal to dispatch him. Kearney told him, "Well, you
got excused from the union. I got orders not to give you a job, so I gave the order
to the dispatchers not to dispatch you."
Sorce plugged in the night "hold" board regularly after August 11, and
answered his plug whenever it was called, but on each occasion the dispatcher
13 The above findings are based on the uncontradicted and credited testimony of Stafford.
and the minutes of meetings of the Port Labor Relations Committee held on the dates
set forth in the findings (General Counsel's Exhibits Nos 8 through 18, inclusive).
II Anderson's statement to Sorce that he was no longer a member of the Union was
made during the afternoon dispatching hours, 4 to 6 p. m., on August 10. The union
membership expelled Sorce at a meeting that night, according to Sorce, so Anderson could
not have been referring to that action of the membership in his remarks to Sorce. How-
ever, Sorce testified credibly that he had been voted out of the Union on charges twice
before, but those actions had either been rescinded or not enforced, as the Union accepted
his dues up to September 1, 1949, and he was dispatched regularly from the hiring hall
up to August 10, 1949. It is apparent that when Anderson said on that date that Sorce
was no longer a member, he was referring to the previous expulsions.
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 1111
on duty refused to dispatch him, giving substantially the same reasons as
Anderson and Kearney had given him on August 10 and 11.
In the early part of 1949, Sorce was haled before a trial committee's of Local 10
on charges that he was a poor worker, that he worked in excess of the maximum
port hours, and that he created disturbances in the hiring hall. Pending disposi-
tion of these charges, and without notifying the Port Committee or securing its
permission, Walter Nelson, business agent of Local 10, personally removed Sorce's
plug from the night ` ;hold" board, and told chief dispatcher Anderson to put it in
the day board and to dispatch Sorce only from the day board or not at all.
Sorce refused to accept day work and went before the Port Committee on April 12,
1949, to complain against this restriction. After discussion of his case , the union
members moved that Sorce be restricted to day work pending filing of final
charges against him before the Port Committee After hearing some testimony
on the alleged violations, the Committee adjourned the case for presentation of
additional evidence. After taking further testimony on April 19, 1949, the
employer-members of the Committee voted against the union members ' motion
to restrict Sorce to day work pending final charges, claiming there was insufficient
evidence to warrant such discipline; as a counterproposition, they moved that
Sorce be so restricted for 1 week because he had created a disturbance in the
hiring hall . The union members disagreed with this motion. When the em-
ployer-members requested that the Union present additional evidence on the
other two charges, the union members stated they would recommend cancellation
of Sorce's registration but were not ready to move that action since the charges
against him were still being processed by the Union, and they requested that in
the interim period Sorce be restricted to day work until the Union could move the
Committee to cancel his registration. The Employers disagreed with this sugges-
tion, and the matter was left in status quo, with Sorce free to recei%e dispatching
orders under the rules of the Port Committee
At a committee meeting of June 7, 1949, the union members moved for cancella-
lion of Sorce's registration on the basis of the three violations stated above.
Additional testimony on the charges was taken at that meeting and the following
one of June 14, 1949. At the latter meeting, the union members renewed the
motion to cancel his registration. The Employers voted against cancellation, on
the ground that the evidence against Sorce was conflicting and old, and that it
warranted no more than the limited disciplinary action they had proposed before.
There being a deadlock on the motion for cancellation, the union members agreed
that Sorce still had the same right to be dispatched as any other longshoreman,
"since at the present time his membership in the Union had not been cancelled."
At the committee meeting of June 21, 1949, the union members advised the
Committee that Sorce had been cited to appear June 20 before the union grievance
committee on a new charge, plugging in while working, and that the union
committee recommended that the Port Labor Relations Committee oaneel Sorce's
registration for that conduct. The Port Committee heard witnesses for and
against Sorce at that meeting and on June 28. On the latter date the union
members requested that the matter be held over for further consideration.16
Sorce's case continued in this posture until the committee meeting of August 16,
1949, when the union members reported that Sorce had been dropped from union
membership, and moved for cancellation of his registration for "continued viola-
15 Sorce also called it the "Grievance" committee , but it is apparent he appeared before
a trial committee as provided in Article XI of the constitution of Local 10 (General
Counsel's Exhibit No 5).
19 Local 10 publicized its position as to Sorce in its weekly bulletin to members issued
June 24, 1949 ( General Counsel 's Exhibit No. 20).
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of union and hiring hall rules " The employer-rnemrbers voted "No" and the
union members voted "Yes" on the motion, creating a deadlock The union mieni-
hers then stated that they considei ed Sorce in the same status as True Know 1-
edge17 and Roosevelt Stafford, and that accordingly lie was not to be dispatched
until all union members had received employment on any given dispatch, under
the preference of employment clause in the Contract 'a The Employers claimed
that, under the True Knowledge case, a nonmember of the Union should be
dispatched only as the last man in the category (or board) in which lie was
plugged At the meeting of August 23, 1949, the union members admitted the new
charge against Sorce had not been proven "decisively," and stated that particular
charge was not the reason for his expulsion, but that he had been expelled for
other reasons, which were not elucidated '° The committee reached no decision
on the question whether Sorce should be dispatched as the last man in the hall or
in any given category. At the meeting of September 6, 1949, the union members
took the position that the Contract gave preference of employment to union mien
and, therefore, nonunion men should be the last mien in the hall dispatched, after
volunteers from union members had been called At the meeting of September 13,
1949, the Union maintained the same position, now claiming that the case of True
Knowledge was not a binding precedent. Thus a complete deadlock was reached
on this point.
Notwithstanding the impasse in the Committee on Sorce's case, the dispatchers
followed the Union's position, as stated in the August and September meetings,
in refusing to dispatch Sorce Thus, dispatcher Les Jensen told Sorce in the
utter part of August that he would be dispatched as the -hest mean on the hoard."
On an occasion in Dlay* 1950 a dispatcher named Alike refused to dispatch Sorce,
giving the same reasons previously stated by other dispatchers, and adding that
tic had to give preference to union members On July 14, 1950, Sorce's ping was
called, but he did not answer it at once because of his many previous rejections,
instead, he approached the dispatcher's window for an assignment after 6 p. m
on learning that extra men or volunteers were needed. all union members having
been dispatched. The dispatcher, one James,-0 could not find his plug at, the
moment, so Sorce came back about S p in when it appeared that four additional
men were needed for dispatch He asked James for an assignment, and the
latter said that he could not give Sorce a job because lie was not a member of
the Union, and that he (James) had orders not to give him a job. Sorce argued
that under the ruling (as he understood it) of the Port Labor Relations Com-
mittee on his case, he was entitled to be dispatched, if there were no union mem-
irers available, before anyone else could be sent out James insisted he could
not give him a job, because those were his orders.
17 True Knowledge is the longsho eman whose case was considered by the Board in
the prior ILIVU case, 90 Nr.RB 1021 The lio,nd there found that Ile had been expelled
from the ILWU for falluie to engage in picketing during a strike; the ILWU requested
the San Francisco Port Labor Relations Committee to cancel his registration , the
employer members refused , True Knowledge was thereafter denied the right of dispatch
from the hiring halls , it settlement of his case was effected by the Committee on April 29,
1947, under which lie was to be dispatched as a iegisteied longshoreman but only after
all full union members had been dispatched, and before "permit" men were dispatched
when dispatched, he could work for the duration of thaI lob
"Section 7 (d)
19 Sorce testified credibly, and I find, that lie was expelled from membership on August 10
because he had sought informal ion and help from the Employers in his predicament, and
the union members considered him a "stooge" for the Employers and thus hostile to the
Union , and they therefore voted him out of the Union " on the constitution "
20 The last name of James, a Negro dispatcher, does not appear in the record
1
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 1113
On July 16, 1950, Sorce's plug was again called, but when he answered the
('all dispatcher Hoffman handed the plug back to him. Sorce asked him for a
job, and Hoffman said he had none for him. Hoffman then summoned three
union members to the window by beckoning to them by hand without calling out
their plug numbers, and dispatched two of them to jobs; the third man refused
a "hold" job and told Sorce about it, saying he could take it if he wanted it;
Sorce then asked Hoffman for that job, but the latter said he had no job to fill
when Sorce reminded him that he had just offered it to the other man, Hoffman
denied lie had any orders for the job, although Sorce saw work orders lying wi
Hoffman's desk; when Sorce asked to see the orders, Hoffman gathered them
up and walked away, repeating he hail no jobs to fill. Sorce remained at the
hiring hall until closing time, 9 p III, but was not dispatched Sorce later com-
plained to dispatcher Les Jensen about this incident, and Jensen admitted he had
given orders to the dispatchers to dispatch Sorce after all union men were dis-
patched, and suggested that Sorce notify him if that was not done After that
conversation and up to the time of the hearing, Sorce's plug has been called, but
he has not been sent out by the dispatchers because there have always been
sufficient union members plugged in the board to fill all work orders ."
E Contentions of Respondents; conclude ng findings
It is clear from the facts found above that both Stafford and Sorce were denied
opportunity to work on the San Francisco water front as longshoremen' by the
dispatchers at the San Francisco hiring hall, acting on orders from Local 10,
because their membership in that labor organization had been terminated for
reasons other than their failure to tender and pay the periodic dues required
by the constitution of the Union
Respondents offered no evidence to contradict the above facts, but relied solely
upon'sfveral technical defenses which will be considered in order.
As then' main defense, Respondents argue that : Stafford and Sorce were
refused assignments to work by dispatchers who were joint agents of the
Employers and Local 10, although the Employers disagreed with the dispatchers'
actions, they did nothing to override or reverse those actions, either by issuing
direct orders to the dispatchers to dispatch these men, or by taking the case
under'the arbitration provisions of the Contract to the Area Labor Relations
Committee, and thence to the Area Arbiti ator, if necessary, whose decision
would be final and binding on the dispatchers ;' therefore the Employers had
not been compelled or "caused" to deny Stafford and Sorce employment, but
had in fact concurred in the refusal to dispatch them I consider this contention
without merit for the following reasons. The record establishes that the dis-
patchers continually refused to dispatch these men on direct orders from Kearney,
president of Local 10, even after the Employers openly disagreed with their
actions, made known their disagreement at committee meetings to the union
representatives, including Kearney and chief dispatcher Anderson, and refused
to cancel their registration at the Union's request, taking the clear position that
Stafford and Sorce were still registered longshoremen and entitled to be dis-
patched the same as other union members. The statement of this position to
the Union and the chief dispatcher was tantamount to an order to the dispatchers
that. so far as the Employers were concerned, Stafford and Sorce should be
21 The above findings are based on the nncontradicted and credited testnnonv of Soice,
and the minutes of meetings of the Port Labor Relations Committee held on the dates set
forth in the findings (General Counsel's Exhibits Nos. 6 through 18 inclusive).
"Section 14 (a) of the Contract.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispatched to work in the usual course. Since the dispatchers refused to dispatch
them, thus obeying the Union's orders and ignoring the Employers ' views,
throughout the deadlock on the issue in the Committee , it is clear that a formal
written order by the Employers to the dispatchers would have availed nothing,
and the lack of such order in the circumstances does not indicate any concurrence
by the Employers in the dispatchers ' actions. The argument that the Employers
should have resorted to arbitration under the Contract is likewise without sub-
stance, acceptance of that argument would in effect require that grievance
procedures under a private contract between the Employers and Respondents
must be used and exhausted before a remedy could be sought or a violation
found under the Act. This contention must be rejected in the light of Section 10
(a) of the Act which provides , in part :
The Board is empowered , as hereinafter provided , to prevent any person
from engaging in any unfair labor practice ( listed in section 8) affecting
commerce . This power shall not be affected by any other means of adjust-
ment or prevention that has been or may be established by agreement, law,
or otherwise : . . . ( Emphasis supplied.)
The underlined wording of the above section is substantially the same as that
contained in Section 10 (a) of the original Act. The courts have held on the
basis of the original section that agreements between private parties , and the
existence of private rights thereunder , cannot affect the public right under
the Act or the paramount jurisdiction of the Board to enforce it 23 I consider
the same principle applicable under the present Act.
I reject Respondents ' contention that the dispatchers were acting as joint
agents of Employers and Respondents in refusing to dispatch Stafford and Sorce.
The record clearly establishes that the dispatchers were members of Local 10,
and likewise of the parent ILWU , that they were elected by members of Local 10
under its constitution and are regarded by that Union as its employees, that
the Employers had no part in or control over their selection , and that in their
conduct toward Stafford and Sorce they were acting wholly pursuant to orders
from Local 10 and contrary to the Employers ' desires. I therefore find that,
although the dispatchers ' salaries were paid equally by the Employers and
Local 10 and they were supposed to operate the hiring hall under rules adopted
by the Port Labor Relations Committee composed of equal numbers of employer ,
and union representatives , in actual practice under the facts in this case they were
acting as agents of the Respondents only. Even " if it be assumed that the dis-
patchers were in fact joint agents of Respondents and the Employers , the Re-
spondents still violated the Act when they gave orders to those agents of the
Employers which caused them to refuse to dispatch the two longshoremen for the
reasons above stated; by such conduct Respondents clearly attempted to cause
and caused agents of the Employers to deny employment on grounds prohibited
by the Act . Even if the Employers acquiesced or participated in that conduct,
that fact does not excuse the unlawful conduct of the Respondents.
Respondents further argue that the joint refusal by the Employers and Local
10 to give these longshoremen work, if illegal , required the presence of the
Employers as parties respondent in this proceeding . I have already found
that the Employers , both at committee meetings and otherwise , desired at all
times to employ Stafford and Sorce, disagreed with the dispatchers' refusal to
send them out, and refused to cancel their registrations . These findings com-
pletely refute Respondents ' contention . However, assuming Respondents' pre-
23 See N L. R B. v Newark Morning Ledger Company , 120 F. 2d 262 , 268, on rehearing
(C. A 3) ; cert. denied 314 U. S 693 ; N. L. R. B v. Walt Disney Productions, 146 F. 2d
44, 47, 48 ( C. A. 9), cert. denied 324 U S. 877.
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 1115
mise, no remedial action could be taken against the Employers, in'the absence
of charges filed and complaint issued against them?'
Finally, Respondents argue that, in refusing to dispatch Stafford and Sorce
until after all union longshoremen' had been dispatched, the Employers and
Local 10 acted in concert under the terms of section 7 (d) of the Contract grant-
ing preference of employment to union members, and that this conduct prevents
a finding that the Employers were "caused" to discriminate against these men.
Respondents evidently refer to the statements of the Employers in the committee
meeting of August 16, 1949, to the effect that, if Sorce was to be considered
in the same status as another longshoreman, True Knowledge,26 then he should
be dispatched only as the last man in a given category, i. e., should be sent out
after all union men on his section of the board had been dispatched. The
short answer to this contention is that the Board held in the prior ILWU case,
90 NLRB 1021, that respondent ILWU, with other affiliated unions, had vio-
lated Section 8 (b) (2) of the Act by entering into the Contract and actively
participating in the enforcement of the provision in question. I take judicial
notice of that decision. It is clear from the testimony of Howard Bodine, an
official of ILWU, that the Contract was made by that organization for and on
behalf of its locals, including Local 10, and their members. It follows that
when Local 10 purported to act under section 7 (d) of the Contract in denying
work to Stafford and Sorce, it likewise violated Section 8 (b) (2) of the Act.
Even if it be assumed, for sake of argument, that the Employers acquiesced in
that action, that does not relieve Local 10 from liability. Moreover, continuing
the same assumption, the record shows that Local 10 even went beyond the terms
of the Contract and its own previously stated position that Sorce was entitled to
be dispatched as the last man in the hall, when it prevented him from being
dispatched under any circumstances, even though the hall was cleared of union
members and jobs were still available, in July 1950, as found above. It is
clear that Local 10, and the ILWU as will appear below, thus used the hiring
hall for a discriminatory purpose, irrespective of the provisions of the Contract.
Respondent ILWU contends that the complaint should be dismissed as to it
for lack of proof showing that it participated in the operation of the San
Francisco hiring hall or that it took any part in the refusal of the dispatchers
in that ball to dispatch Stafford and Sorce. The ILWU relies here on testi-
mony of Howard Bodine that ILWU does not direct the operations of the local
hiring halls, that no representative of ILWU sits on the Port Labor Relations
Committee, and that ILWU issues no orders to the dispatchers and specifically
issued none to the dispatchers at San Francisco regarding Stafford and Sorce.
I do not credit his testimony on this point, however, as other testimony given by
him and other stipulated and uncontroverted documentary proof leads me to a
contrary conclusion. Bodine testified, and I find, that : The ILWU negotiated
and executed the Contract of December 6, 1948, on behalf of its locals, including
Local 10, -and their 'members ; the Contract was _negotiated through the ILWU
permanent Coast Negotiating Committee, which consists of ILWU officials, the
members of its Coast Labor Relations Committee, and members of the ILWU
Executive Board who come from the longshore locals on the Pacific Coast.
The Contract contemplates that it will be carried out in actual practice, so
far as ILWU interests were concerned, by representatives from its local union
in each port Section 7 of the Contract provides for the creation and joint
24 See General Electric X-Ray Corporation, 76 NLRB 64; E. L. Brace Company, 75
NLRB 522.
22 See footnote 17, supra.
1116 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operation of a hiring hall in each port by the ILWU and the Employers, with
each party bearing half the expense of operation. Under section 14 (c), a Port
Labor Relations Committee is created and maintained by the parties in each
port, charged with the duty of operating the hiring hall; the committee is com-
posed of three representatives designated by the ILWU and three by the Em-
ployers Although the three union representatives on the San Francisco Port
Committee were elected from the membership of Local 10,28 under the above
contract section they are designees of the ILWU ; and under Article XVI, section
10 (a), of the constitution of Local 10, they were clearly chosen on this com-
mittee for the express purpose of representing Respondents under the Contract.
In addition, section 4 of Article II of the local constitution contemplates that
members of the Local are basically members of ILWU. It is clear from these
facts that the union representatives on the San Francisco Port Committee were
the representatives and agents of the ILWU as well as its Local 10 for the
purpose of carrying out the provisions of the Contract, including section 7 (d),
thereof which has been declared illegal by the Board It follows that these
representatives, in taking the actions found above which resulted in the refusal
to dispatch Stafford and Sorce, were acting within the scope of the general
authority conferred on them by Respondents, and that Respondent ILWU is
liable for their acts, even though no other official of ILWU was present to
direct, or later ratified, those acts.2T Like the representatives on the Port Com-
mittee, the dispatchers in the San Francisco hiring hall were members of Local
10 and thereby members of the ILWU. Under section 7 (b) of the Contract,
the ILWU had provided that they should be selected solely by the Union through
(local) elections, and that they should hold office for the duration of the Con-
tract, notwithstanding any other provisions in the constitution or rules of the
ILWU or any of its local28 It is apparent that the dispatchers also held their
jobs in the hiring hall by virtue of the Contract. As found above, the chief
dispatcher had immediate control of the hiring hall. The above facts make it
clear, and I conclude and find on the basis thereof, that Local 10 was bound
by and acted under the Contract made for it by the ILWU, that the members
of Local 10 on the Port Committee were acting at the committee meetings out-
lined above as agents of both Respondents, that the dispatchers by refusing to
dispatch Stafford and Sorce as found above, were also acting for both Respond-
ents and under orders of agents and representatives of both Respondents in
the enforcement of illegal provisions of the Contract and in causing discrimina-
tion against nonunion longshoremen dehois the Contract in the actual operation
of the hiring hall ; and that in consequence the ILWU was thereby a party to
and responsible for the actions against these men to the same extent as its
Local 10
It is clear from the testimony of Stafford and Sorce, the stipulated facts as to
the actual operation of the hiring hall at San Francisco, and section 7 (a) of the
Contract, that the only means by which longshoremen in that port could get long-
shore work was through the hiring hall, and the Employers could not employ and
retain longshoremen except through that medium. It therefore follows that
when Respondents ordered the dispatchers to refuse to dispatch Stafford and
20 Article IV, section 2, and Article XVI, section 10, of constitution of Local 10
(Geneial Counsel's Exhibit No 5)
27 See International Longshoremen' s and Warehouscineit's Union, et al, (Sunset Line
and Twine Company), 73 NLRB 1487, 1508, 1509
28 This provision apparently superseded Article V of the constitution of Local 10
which contemplated annual elections of miscellaneous employees of the Union , including
dispatchers.
INTERNATIONAL LONGSHOREMEN' S AND WAREHOUSEMEN ' S UNION1117
Sorce for the reasons found above, and the dispatchers carried out those orders,
the Respondents prevented the Employers from giving these longshoremen em-
ployment, and thereby caused the Employers to discriminate against them.
After consideration of the facts found above, the entire record, and the conten-
tions of General Counsel and the Respondents, I have reached the conclusion, and
I therefore find, that Respondents, acting through their agents and representa-
tives in the San Francisco hnriug hall, denied Roosevelt Stafford on and after
June 8, 1949, and Joseph Sorce on and after August 10, 1949, both being registered
longshoremen, the right and opportunity to be dispatched for longshore work on
the San Francisco water front, because their membership in Respondent Local 10
had been terminated upon grounds other than their failure to tender and pay the
periodic dues required by the constitution ofLocal 10 as a condition of retaining
membership in the ILWU. By such conduct Respondents were enforcing the
illegal preferential employment provisions of their Contract with the Employers,
and also caused the hiring hall to be operated, in actual practice, so as to di-3-
criminate against nonunion longshoremen, and. thereby caused and attempted to
cause the Employers to deny employment to and thus discriminate against Staf-
ford and Sorce because of their nonmembership in the Respondents in violation
of Section 8 (a) (3) and, derivatively, 8 (a) (1) of the Act, and after their
membership in Respondents had been terminated on grounds other than their
failure to tender the periodic dues required by Respondents, all in violation of
Section 8 (b) (2) of the Act29
The record shows that Stafford and Sorce, after their expulsion from the
Respondents, made no effort to regain their membership by appeal or application
for reinstatement within the ILWU, but thereafter sought work through the
hiring hall as nonunion but registered longshoremen, which indicated their
desire to work for the Employers without rejoining or engaging in any concerted
activity with Respondents As found above, Respondents caused the Employers
to discriminate against them in violation of the Act, by application of an illegal
provihion of the Contract and otherwise. There being no other provisions of
the Contract which clearly and legally required these nien to secure or retain
membership in Respondents as a condition of employment,30 they were free to
work for the Employers through the medium of the hiring hall and at the same
time had the right under Section 7 of the Act to refrain from joining or assisting
Respondents. The conduct of Respondents in ousting them from membership
and then causing the Employers to deny them employment for that reason was
fully publicized by Respondents, both in the hiring hall and the Port Committee
and through the official weekly bulletin of Local 10." Under these circumstances
the conduct of Respondents not only restrained and coerced Stafford and Sorce in
the exercise of their right to refrain from joining or engaging in concerted ac-
tivity with Respondents, but also was calculated to coerce and restrain other
longshore employees of the Employers to retain their membership in Respondents
It is therefore clear, and I conclude, that Respondents' conduct violated Section
8 (b) (1) (A) of the Act 32
29 See Clara-Val Packing Company, 87 NLRB 703 ; Union Starch and Refining Company,
87 NLRB 779
30 There is no proof that the Contract was ever authorized under the proviso to Section
^8 (a) (3)
31 Stafford and Sorce were present at most of the Port Committee meetings at which
their cases were considered
32 See cases in footnote 29, supra, and also Randolph Corporation , 89 NLRB 1490,
General American Aeiocoaeh, 90 NLRB 239, and Kingston Cake Company, Inc, 91 NLRB
447
1115, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also conclude and find that Respondents further violated Section'S (b) (1)
(A) of the Act by (1) the statements of chief dispatcher Anderson to Stafford
on June 8 and 9, 1949, that he was not a union member and could not be dis-
patched; (2) the refusal of dispatcher Manning on July 14 and 15, 1949, to dis-
patch Stafford, stating that he was not a member of the Union ; (3) the refusal
of other dispatchers after July 15, 1949, to dispatch Stafford, advising him
that he was not a member of the Union; (4) the statement of chief dispatcher
Anderson on August 10, 1949, to Sorce that Sorce was no longer a union member,
and that he had orders from the union office not to give him a job; (5) the state-
ment of Kearney, president of Local 10, to Sorce on August 11, 1949, dint
Sorce "got excused from the union. I got orders not to give you a job, so I ga\ e
the order to the dispatchers not to dispatch you" ; (6) the statement of dispatcher
James on July 14, 1950, to Sorce that he could not give him a job because he
was not a member of the Union, and he (James) had orders not to give him
a job '
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring in
connection with the operations of the Employers set forth 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents, and each of them, have engaged in and
are engaging in certain unfair labor practices, I will recommend that they
cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondents, by their conduct described above, enforced
the provisions of the Contract which granted preference in employment to
members of the Respondents, which the Board has already found unlawful, I
shall recommend that Respondents cease and desist from giving effect to such
provisions.
The record demonstrates that Respondents, by their control of the dispatchers
as found above, have in fact controlled the dispatching of longshoremen from
the San Francisco hiring hall, notwithstanding the provisions of their Contract
providing for joint control by them and'the Employers, and through such con-
trol effectively denied Stafford and Sorce the opportunity to earn a livelihood as
registered longshoremen and employees of the Employers on the San Francisco
water front, notwithstanding the contrary desires of the Employers By thus
preventing their employment, Respondents have in effect nullified or cancelled
the registration of Stafford and Sorce as longshoremen, and have thus arrogated
to themselves a power which under their Contract and in the intended operation
of the hiring-hall system they had placed in the Port Labor Relations Committee.
From these facts, the nature and extent of the unfair labor practices indulged in,
and their effect on the Employers and their employees in the operation of the hir-
ing hall. I am convinced that Respondents were and are determined by any
means to prevent Stafford and Sorce, and other longshoremen similarly situated,
from obtaining employment with any of the Employers, and that this determina-
tion, and the methods employed by Respondents to enforce it, indicates an atti-
tude on their part hostile to the fundamental rights of employees protected by
38 See General American Aerocoach, 90 NLRB 239.
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 1119
the Act, and to the general purposes and policies of the Act. Respondents' past
conduct persuades me that there is strong likelihood that they may in the future
commit similar or related unfair labor practices prescribed by the Act, in order
to gain their ends. I will therefore recommend that Respondents cease and
desist from causing or attempting to cause the Employers, or any of them, by di-
rect or indirect orders to the dispatchers in the San Francisco or any other
Pacific Coast hiring hall, through Respondents' representatives on the San
Francisco or any other Port Labor Relations Committee, or otherwise, to deny
employment to any employee or prospective employee of any of the Employers,
whose membership in Respondents has been terminated on grounds other than
failure to tender the periodic dues, except to the extent permitted by Section 8
(a) (3) of the Act, or in any other manner causing or attempting to cause the
Employers, or any of them, to deny employment to, or otherwise discriminate
against any employee or prospective employee in violation of Section 8 (a) (3)
of the Act. I will also recommend that Respondents cease and desist from in any
manner restraining and coercing employees or prospective employees of the
Employers, or any of them, in the exercise of their right to refrain from any or
all of the concerted activities guaranteed to them by Section 7 of the Act,
except to the extent authorized in Section 8 (a) (3) of he Act. As a corollary,
I will further recommend that Respondents notify the Employers, the San Fran-
cisco Port Labor Relations Committee, and the dispatchers in the San Francisco
hiring hall, in writing, and furnish copies of such notice to Stafford and Sorce,
that they withdraw their objections to the dispatch of Roosevelt Stafford and
Joseph Sorce as registered longshoremen from said hiring hall for work for which
they are qualified. I will further recommend that Respondents notify and direct
the dispatchers at San Francisco, and furnish copies of such notice to Stafford,
Sorce, and the Employers, to dispatch Roosevelt Stafford and Joseph Sorce for
longshore work on the San Francisco water front forthwith and in the usual
course, pursuant to all lawful terms and provisions of the Contract of December
6, 1948 (but excepting such provisions thereof as grant preference of employ-
ment to members of Respondents) and the rules and regulations of the San
Francisco Port Labor Relations Committee, without regard to their membership
or nonmembership in Respondents or any other labor organization, and with-
out prejudice to their seniority and any other rights and privileges acquired by
or accorded to them as registered longshoremen under the Contract aforesaid or
otherwise.
I will also recommend that Respondents make Roosevelt Stafford and Joseph
Sorce whole for any loss of pay suffered by them as a result of Respondents'
unlawful conduct, by payment to each of them of a sum of money equal to the
amount he would normally have earned as wages from the date of the first
refusal of the dispatchers to dispatch him to work (in the case of Stafford June
8. 1949; in the case of Sorce August 10, 1949) to a date 5 days after the date
on which Respondents serve on the Employers, the Port Committee, and the
dispatchers the notices recommended above. In computing the amount of back
pay due to each man for these periods, the customary formula of the Board set
forth in F. W. Woolworth Company, 90 NLRB 289, shall be applied.
Upon the foregoing findings of fact and the entire record in the case I make
the following :
l
CoNCLusIoNs of LAW
1. Waterfront Employers Association of the Pacific Coast, Waterfront Em-
ployers Association of California, Waterfront Employers of Oregon and Columbia
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
River, Waterfront Employers of Washington, Pacific l\hu'itiaie Association, and
their member-companies, listed in Appendix A hereto, are employers within the
meaning of Section 2 (2) of the Act.
2. International Longshoremen's and \Vnrehousenten's Union, amt Interna-
tional Longshoremen's and Wit reliouseuten's Union, Local 10, UIO, are labor
organizations within the meaning of Section 2 (5) of the Act.
3. By causing the Employers to discriniinate against employees and prospective
employees in violation of Section S (a) (a) of the Act, Respondents have engaged
in and are engaging in unfair labor practices, within the meaning of Section 8
(b) (2) of the Act.
4. By restraining and coercing employees and prospective employees of the
Employers in the exercise of rights guaranteed in Section 7 of the Act, Respond-
ents have engaged in and are engaging in unfair Tabor practices within the
meaning of Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (0) and (7) of the Act.
[Recommended Order omitted front publication in this voltune.I
WAUKESHA FOUNDRY COi1IPANY avid Loma? No. 1377, INTERNATIONAL
ASSOCIATION OF MACIIINISTS , PETI'i'IONl al altd W TAUIc ESIIA SANI' T'ARY
PUniP D IVISION E111PLOYitI;S I' NION, I E'I'I'I'ION 1^:R . ^^r(ixes NOR . 1,`1 RC-
1624 and 13-RC-1648. Ja'rt.e 6, .1951
Decision and Order
Upon separate petitions duly filed under Section f) (c) of the Na-
tional Labor Relations 11c(, a c.ouso1idated iearing was held before
John P. von Rolir, Bearing officer. l'he hearing oflicc is rulings made
at the hearing are free from prejudicial error and m'e hereby aflirnled.,
Pursuant to the provisions of Section 3 (b) of tie Act, the Board
has delegated its powers ill connection with these cases to it three-
member panel [Chairman Herzog and Members Reynolds and
Murdock].
Upon the entire record in these cases, the Board finds:
1. The Employer is engaged in coiunierce within the Iueaniug of the
Act.
2. The labor organizations involved claim to represent, certain em-
ployees of the Employer.
3. No question affecting commerce exists conoerliing the representa-
tion of employees of the Employer witiin the meaning of Sect ion 1) (c)
(1) and Section 2 (0) and (7) of the Act.
i Permission to intervene was granted to Local 84, International Brotherhood of Foundry
and Metal Employees, herein called the Intervenor, upon Its showing of a sufficient Interest
in the proceedings.
94 NLRB No. 160.