Jarka Corp. of Philadelphia

National Labor Relations Board - Board Decisions

May 7, 1951

94 N.L.R.B. 320 (N.L.R.B. 1951)

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
4. We find that all production and maintenance employees, exclud-
ing office clericals, guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
JARKA CORPORATION OF PHILADELPHIA and WILLIAM J. WALKER
LOCAL 1291, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION and
WILLIAM J. WALKER
LOCAL 1291, INTERNATIONAL LONGSHHOREMEN'S ASSOCIATION and WIL-
LIAM D. RICIIARD5ON. Cases Nos. 4-CA-251, 4-CB-!^1, and 4-CB-
45. May 7, 1951
Decision and Order
On September 25, 1950, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in this consolidated proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
Union and the General Counsel filed exceptions to the Intermediate
Report, and supporting briefs. As the International Longshoreman's
Association (AFL) (hereinafter called the International) Is a direct
party to collective bargaining agreements in the Philadelphia area,
it was permitted to file a brief in opposition to the Intermediate Re-
port. The Respondent Company filed no exceptions to the Inter-
mediate Report.
The request for oral argument of the Respondent Union and the
International is hereby denied, as the record, the exceptions, and the
briefs, in our opinion, adequately present the issues and the positions
of the parties.
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 Inter-
'.Although the complaints enlarged upon the charges original'y filed, we find no merit
in the Unions' contentions that the enlargement was barred by the 6-month limitation
contained in Section 10 (h) The additional unfair labor practices were committed no
longer than 6 months before the filing and service of the original charges, and were there-
fore propeily included Nor is it material that the enlargement of the complaint was
94 NLRB No. 54.
JARKA CORPORATION OF PHILADELPHIA 321
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications and
additions.
1. Like the Trial Examiner, though not for the reasons assigned
by him, we find no merit in the General Counsel's contention that the
Respondents violated the Act by entering into an agreement or ar-
rangement calling for the preferential hiring of union members.
In November 1949, the Philadelphia Marine Trade Association
(PMTA), on behalf of its members including the Respondent Com-
pany, submitted a proposed draft of a collective bargaining agreement
containing the "union-security provision" set forth in the Intermediate
Report, to the International Longshoremen's Association, Locals 1291
(the Respondent Union), 1290, and 1694. The record establishes that
the parties are operating according to those terms of this unsigned
tentative agreement on which they have reached general agreement,
but there is no evidence that the union representatives ever agreed to,
or even discussed, the proposed "union-security" provision.2 More-
over, there is no evidence that the parties operate under that provision
or any other basis from which we can conclude that they have, by
conduct, accepted the tentative provision on this subject. Under these
circumstances, we conclude that a preponderance of the evidence fails
to support any finding that the parties entered into an agreement con-
taining a "union-security" clause. Accordingly, we do not pass upon
the legality of the clause contained in PMTA's offered contract relat-
ing to union security.d
2. We agree with the findings of the Trial Examiner, to which
the Respondent Company did not except, that the Respondent Com-
pany, through its union-member hiring foremen ,4 followed the prac-
based, in part, upon amended charges filed mole thin fi months atter the alleged unfair
labor practices .Cat/req Lsmbei Company, 86 NLRB 157, 162-163, enfd 185 F 2d 1021
(C A 5) , Gaynor News Company, Inc, 93 NLRB 299, Radio Station KVI]C, 93 NLRB
618. Kansas Milling Company v N L R B, 185 F 2d 413 (C A 10)
We likewise find no merit in the Respondent Union's contention that the Union's bylaws
were inadmissible in evidence See Chicago Typographical Union and International Typo-
graphical Union, 86 NLRB 1041 , N L R B v Bradford Dyeing Assn, 310 U S 318,
338-40
2 The Trial Examiner found that the Respondents had not agreed on the phraseology
of this clause, but concluded, from ei]dence showing that both knew that preferential
hiring wis illegal and neither nitended to request or accept ani illegal union-security
pi orisron, that they were "in agreement as to its substance " We ai e unable to find
substantial agreement between the parties from the mere fact that they separately iesolved
to seek the ,ante result
I Nor do we have before us the question to which the International directs our attention
iii its hncf, i e , whether there ran be a legal union shop, conforming to the limitations of
the proviso to Section 8 (a) (3), when the employees in the industry do not generally
work for one employer for as many as 30 consecutive dais
i Such hiring foremen are supervisors whose conduct, without regard to their personal
motivation, is attributable to then employer when, as here, they engage in conduct
prosciil and by the Act in the course of th'rr e - ''m- 'ent New^papei and Mail Uelri,rrara'
Union of New York and Vrcinsty, et al , 93 NLRB 237
953841-52-vol 94--22
322 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
tice of granting preferential hiring to union members in good standing,
and acceded to requests or instructions from union delegates to dis-
criminate in hiring against nonunion applicants and union members
not in good standing,5 thereby violating Section 8 (a) (1) and 8 (a)
(3) of the Act.
3. The Trial Examiner also found, and we agree, that the Re-
spondent Union violated Section 8 (b) (1) (A) and (2) by causing
the Respondent Company and other companies engaged in the busi-
ness of general stevedoring in the Philadelphia area to make a
practice of giving preference in employment to union members.
In making this finding, the Trial Examiner relied on evidence
which satisfied him that the union delegates,° whose duties, as defined
in the Respondent Union's bylaws, include seeing that "no outsiders
be permitted to work as long as union men are available ," appear
regularly at shape-ups where they request hiring foremen to give
preference to union members and seek to obtain preferential employ-
ment for union members by threatening hiring foremen with the
imposition of a fine for violating an alleged union rule requiring
preference for union members.'
The Respondent Union and the International contend that the
section of the bylaws containing the clause quoted above has been in-
formally suspended S and that, in any event, the evidence does- not
warrant finding any union rule which imposed a fine upon hiring
foremen who failed to hire union men first. The bylaws contain no
provisions relating to the duties or liabilities of hiring foremen as
such, although all union members are required to yield strict obedience
to union officials and to such rules as the Union may see fit to adopt.
Although the record shows that at least some of the union-member
hiring foremen had heard of the fine, there is no evidence that the
alleged rule was ever officially promulgated or enforced. Unlike the
,Trial Examiner, we therefore believe the evidence insufficient to sup-
port- his inference that the delegates generally attempt to secure
,preferential hiring by threatening to fine recalcitrant foremen.
We have, however, no similar doubt that, during the period in
question, the union delegates followed the practice of requesting and
L The record indicates that all the regular hiring bosses for the Respondent Company
were also members of the Respondent Union The three hiring bosses for the Respondent
Company who testified admitted that they generally hired union men first
fi As the delegates are elected officers of Respondent Union , there can be no question
of the Respondent Union's liability for even unauthorized acts committed in the course
of performing their express duty under the Union ' s hyla s s "to see that the foremen hire
the men qualified to do the work " See United Furniture Workers of Anter ica, CIO
(Colonial Hardwood Floorsn % Co , Inc ), 84 NLRB 563, 583 . Bitner Fact Co , 92 NLRB
953 "Union Responsibility for Acts of Officers and Members ." 49 Coluui . L Rev 384
7 See Newspaper and Mail Deliverers' Union of New York and V1c inntnl, et al . 93 NLRB
237, Ibid, 93 NLRB 419, where the Board found such threats addressed to union-
member hnmg foremen proscribed as attempts within the meaning of Section 8 (b) ,(2).
s Considering the basis for our decision herein , we need not decide whether the evidence
supports the Unions ' contentions that the bylaw has been suspended
JARKA CORPORATION OF PHILADELPHIA 323
securing preferential hiring for union men. The assistant financial
secretary of the Respondent Local, James T. Moke, admitted that the
rule of the Union in 1949 9 was stated on the "Temporary Work Cards,"
issued to nonmembers : "book men were to be hired first." to He
testified that this rule was "enforced" by delegates at the shaping
points. He also reported to the Board that the Union was, on June
15, 1949, permitting "a [nonunion] man to finish out any day that
he is hired when our Wien are not available.""' These admissions
and the record as a whole including the instances of discrimination
against specific individuals found below convince us of the Respondent
Union's success in getting the Respondent Company, and other com-
panies in the area with "shape-ups" within the jurisdiction of its
delegates, to engage in the practice of granting preferential employ-
ment to union men.
On these facts we find that the Respondent Union violated Section
8 (b) (2) and 8 (b) (1) (A) of the Act.
It is immaterial that the Respondent Union secured preferential
hiring for union members by merely requesting it from union-member
hiring foremen. When, as here, a union's request for discrimination
,secures and maintains discriminatory practices on the part of the
employer, the causal connection between the request and the employer's
discrimination supports a finding that the union, in violation of
Section 8 (b) (2), caused the employer to violate Section 8 (a) (3).12
We likewise find no merit in the Respondent Union's contention that
this conduct, being directed to the Einployer rather than the em-
ployees, did not result in restraint and coercion of employees pro-
scribed by Section 8 (b) (1) (A) because there is no evidence that
the Union either threatened the employees with physical violence
or economic reprisal or attempted, in any way, to induce any employee
to join the LTniori.11 By causing the employers to pursue preferential
hiring practices, the Respondent Union obtained actual economic re-
prisal against nonmembers and members who had- lapsed from good
standing, effectively restraining such employees in their guaranteed
o In considering the impact of the ru'.e upon the Employer's operations, we are not
passing upon the general validity of the rule in the province of the internal affairs of the
labor organization See Sub Grade Engineerinq Company, 93 NLRB 406
10 As the record contains no evidence that these cards were used in obtaining employ-
ment, we do not adopt the Trial Examiner's finding that card holders were accorded
preference by the hiring bosses ovei those who were neither members nor card holders
it This statement occurs in a letter, introduced in evidence, written by Moke in reply
to an inquiry from a Board held examiner concerning the Union's compliance with the
Board-approved settlement of May 3, 1948, in Case No 4-CB-4. The settlement recog-
nized the legality, under Section 102 of the Act, of the preference provisions contained in
the contract then in effect Although the statement indicates compliance with the terms
of the settlement, it also indicates that the practices had continued after the expiration
of the contract
32 See Sub Grade Engineering Company, supra Member Murdock, who dissented in
that case, deems himself bound by the decision therein
11 See New York State Employers' Association, Inc, and Red Star Express Lines of
Auburn, Inc, 93 NLRB 127
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right, under Section 7, to refrain from joining or assisting labor
organizations in the absence of an agreement validly conditioning
employment upon membership in the Union, and thereby violated
Section S (b) (1) (A): 4
4. We find, as did the Trial Examiner, that in the course of
such discrim-natory hiring practices, the Respondent Company vio-
lated Section 8 (a) (1) and (3) of the Act by specifically discriminat-
ing against William J. Walker and William D. Richardson," at the
request of Union Delegates Varlack and Kavalauskas, and that the
Respondent Union, having caused the Company to do so, thereby
violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act.is
As the Trial Examiner found, the Respondent Company's hiring
boss, Craft, had given TValker a work assignment on May 11, 1949,
when Union Delegate Varlack spoke to Craft. According to Walker,
Craft then told him he was sorry but Varlack had told him not to.
carry Walker that day; Walker, without questioning Craft further.
then volunteered to see Varlack, who told him to go to see the financial
secretary at the union hall and to pay up his past dues. Walker ftr-
iher testified that, after reporting Varlack's instruction to Craft, he
went to see the financial secretary, Ford, who said: "You know you
can't work if you are back on your dues." Walker had not paid dues
since 1947. Varlack admitted talking to Craft about Walker, but
claimed that he had merely reported complaints, made by other
members of the gang with whom Walker had worked the day before,
as to Walker's unfitness for the job involved. The Trial Examiner
discredited Varlack, finding further that Walker's credited testimony
warranted the inference that Varlack had indicated to Craft that
Walker was unacceptable for the reasons which he found Varlack
gave Walker 17 Neither Craft nor Ford testified.
14 See Sub Grade Engineering Company, supra
i1 The Respondent Company did not except to this finding We find no denial of due
process in the fact that the complaint in Case No 4-CA-251, which alleged that the
Company had discnmmated "in regard to the employment of employees, including
William J Walker," was not amended to name Richardson In addition to the tact
that the complaint in 4-CA-251 refers to "employees" generally, the complaint in the
companion case, 4-CB-45, specifically names Richardson Moreover, the matter was
fully litigated Section 102 9 of the Board's Rules and Regulations Series 6, authorizes
"any person" to file the charge requiied by Section 10 (a) of the Act Accordingly, the
fact that Richardson did not himself file against the Company is immaterial and cannot
be regarded as a waiver of the public interest in remedying the violation found
"Sub Grade Engsneerinq Company, supra
17 Unlike, the Trial Examiner, we do not believe that Val lack's testimony relating to any
conversation he may have had with Wall cr is contraiy to Walker', testimony thereon
Walker testioed as follows. "I went to Henry [Varlack] and asked him, I says, `Henry,
what is the matter'' Why I can't go this morning"' He sacs. 'Well,' say, `you are not
up in your dues and you have to go to 11ie hall and see Ford, financial see] etarv' ' Union
counsel addin ed the toilonnng testimony Boni Viii lack "Q iii Walker stated that he then
cane over and had a discussion with you and that you told him that lie was not being
allowed to woiIi because ha was not a member of the union is that true" A That is
false " The asserted f,,lsiti of the testimony erroreously attributed to Walker has no.
bearing upon the truth of Walker's testimony, which was uncontroverted
JARKA CORPORATION OF PHILADELPHIA 325
The Respondent Union excepted to the Trial Examiner's inference
concerning what Varlack said to Craft when he requested Walker's
dismissal. Like the Trial Examiner, we discredit Varlack's testimony
to the effect that he requested Craft not to use Walker because of con=
plaints made by other members of the gang as to Walker's fitness for
the scrap-iron work involved on May 11, 1949. We note that this
credibility finding is corroborated by Walker's testimony that he had
never heard any complaint against him and that he had worked on
several scrap-iron jobs between January 9, 1949, and May 15, 1949.
In this posture, the record permits finding either that Varlack told
Craft to discharge Walker because he was in arrears in his union dues
or that Varlack, without giving any reason, merely asked that Walker
be discharged. Under either version, the Respondent Employer vio-
lated Section 8 (a) (3) by complying with Varlack's request,18 there-
fore we need not determine which statement Varlack made.
On June 7, 1949, Hiring Boss Gibbs had given William D. Richard-
son a work ticket, when, according to Gibbs' credited testimony,
Union Delegate Kavalauskas approached him and said, "You have to
get a union man." Gibbs then took the ticket from Richardson and
"got a union man." Richardson's version of the episode, which the
Trial Examiner sets forth in detail, is essentially the same.1° Kava-
lauskas admitted telling Gibbs to take the ticket back from Richard-
son but testified that he had done so on the ground that Richardson
was physically unfit for work. He denied requesting preferment for
a union or "button" man. The Trial Examiner discredited Kava-
lauskas, and credited Richardson and Gibbs, on this matter.11
The Respondent Union contends that the Trial Examiner's credibil-
ity findings ignore uncontroverted evidence which corroborates the
testimony of the discredited union witnesses. The material facts
relating to these two instances of specific discrimination, set forth
above, do depend, to a large extent, on the determination of the
credibility of the witnesses. However, we have considered the Trial
"Thus even if Cialt retused to carry walker for no other reason than that Varlack
had asked hum not to do so, the Respondent Employer violated Section 8 (a) (3) by
unlawfully delegating control over employment to the Union. See Pinkerton's National
Detectii,e Agency, Inc, 90 NLRB 205, N L. R B v Daniel Hanna Drayage Co, Inc, 185
F 2d 1020 (C A 5), enfg 84 NLRB 45S \Ioreovei, the Respondent Employer did not
except to the finding of discrimination
ii Both testified that I avalauskas requested preference for a union "book" or "button"
man As that is the material issue here, we consider other variations between their
testimony irrelevant
20 Although we accept the Trial Exanunei's finding that Richardson applied for work
about June 9, 1949, and that Gibbs explained his refusal to give him a ticket by saying,
"I can't afford to pay out no fine for you. I want to do you a favor, but I can't pay out a
fine for nobody," we do not infer therefrom that the Union is responsible for threatening
to impose a flue upon Gibbs for failure to grant the request or that such a threat was
the operative factor in Gibbs' concession on June 7, 1949 The explanation is not incon-
sistent with Gibbs' testimony that lie had heard of the fine from members but had neither
been threatened with such a fine by a delegate nor been fined
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's resolution of conflicting testimony on the material facts
with regard for the consistency and inherent probability of the testi-
mony as a whole and the fact that the Examiner, not the Board,
-observed the witnesses, and are satisfied that the Trial Exam ner'•s
credibility resolutions are supported by the clear preponderance of all
the relevant evidence.21 Accordingly, we find no merit in the Union's
contentions. Accepting the Trial Examiner's credibility findings, we
find that a preponderance of the evidence establishes that Union Dele-
gates Varlack and Kavalauskas, by their requests, caused the Re-
spondent Company to discriminate against Walker and Richardson
in violation of Section 8 (a) (3), thereby violating Section 8 (b) (2)
and Section 8 (b) (1) (A).
The Remedy
Having found that the Respondents engaged in certain unfair labor
practices, we shall order them to cease and desist therefrom and to
take affirmative action necessary to effectuate the policies of the Act.
We shall order the Respondent Company, upon application'22 to
offer William D.-Richardson and William J. Walker employment in
available jobs, without regard to their membership or nonmembership
in the Respondent Union or in any other labor organization, and
without prejudice to their seniority or other rights and privileges.
We shall further direct the Respondent Company to notify Richard-
son and Walker in writing that, upon their application, it will offer
them employment in available jobs on such nondiscriminatory basis.
In addition, we, shall direct the Respondent Union to notify the Re-
spondent Company in writing that it has no objection to the Com-
pany's employment of these and other persons without regard to their
membership in good standing, membership, or uomnembership in
the Union.
We shall further order the Respondent Company and the Respond-
ent Union jointly and severally to make whole Richardson and Walker
for any loss of pay they may have suffered as a result of the discrimi-
nation against them .23 The Respondents, however, shall not be liable
for back pay for any day when, absent discrimination, Richardson and
21 Standard Dry Wall Products, Inc, 91 NLRB 544
12 Application for employment is appropriate in this case in view of the fact that the
discrcminatees are part of the Respondent Company ' s extra labor force , hired on a day-to-
day basis at the "shape-up " See Newspaper and Mail Delwei ers' Union of New York and
Vicinity ( The Hearst Consolidated Publications , Inc ). 93 NLRB 237
23 In computing the amount of back pay due the founula enunciated in F IV Wool-
worth Company, 90 NLRB 289, shall be followed.
JARKA CORPORATION OF PHILADELPHIA -327
Walker would not have been employed. Walker's loss of pay shall
be computed from the date of the discrimination against him to the
date on which he left the water front.24 Richardson's loss of pay shall
accrue from the date of the discrimination against him.25 However,
the Union may terminate its liability for further accrual of back pay
by giving the Company the notice mentioned above. The Union
shall not be liable for any back pay accruing 5 days after such notice 26
The Company may also terminate its liability for further accrual of
back pay to Walker by notifying him that available work will be of-
fered to him without discrimination and offering him employment on
such basis, as provided above.
The Trial Examiner recommended that the Respondent Union be
ordered to cease and desist from causing or attempting to cause the
Respondent Company and any other employer to discriminate against
any employee or prospective employee in violation of Section 8 (a)
(3) of the Act, on the basis of his finding that the Respondent Union
had caused and attempted to cause Respondent Company and other
companies engaged in the business of general stevedoring in the
Philadelphia area to discriminate against longshoremen not in good
standing in or approved by Respondent Union. The Unions contend
that any order against the Respondent Union should be limited to
the Respondent Company alone. In view of the evidence which
demonstrates that the Respondent Union has caused other stevedoring
companies in the area to discriminate against longshoremen, it is
our opinion that to limit the order to the Respondent Employer would
be to disregard not only the danger of future commissions of unlawful
acts to be anticipated from "the course of . . . conduct in the past,"
but to fail to remedy those which resemble that Which the Respondent.
Union has committed.27 Accordingly, we shall adopt the recom-
mended order, with the modification that it be limited to other com-
panies engaged in the business of general stevedoring in the Philadel-
phia area.
Finally, we shall order the Company to make available to the Board,
upon request, payroll and other records to facilitate the checking of
the amount of back pay due and to determine the right to employment.
21 Walker testified that lie quit going down to the water front in July 1949, but shaped
between May 10 and July 1949 We leave the question of the number of times when,
absent discrimination, he would have been employed to determination on compliance
The Trial Examiner misstated that it was Richardson, rather than Walker, who left the
water front,
15 Of course, the Respondents are entitled to deduct, according to the usual formula,
those payments which the Respondent Company has made to Richardson for work
awaided him without discrimination, since June 7, 1949.
20 Pinkerton's National Detective Agency, Inc, supra.
27 See United Mine Workers of America , et at. (West Kentucky Coal Company ), 92 NLRB
916, and cases cited therein.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. The Respondent, Jarka Corporation of Philadelphia, Philadel-
phia, Pennsylvania, its officers, agents, successors, and assigns shall :
1. Cease and desist from:
(a) Encouraging membership in Local 1291, International Long-
slioremen's Association, or any other labor organization of its em-
ployees by discriminating in regard to the hire or tenure of
employment or any term or condition of employment of any of its
employees or prospective employees except to the extent authorized
by Section 8 (a) (3) of the Act.
(b) In any like on related manner interfering with, restraining, or
coercing its employees in the exercise of the right to refrain from
engaging in concerted activities as guaranteed 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 con-
dition of employment as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon application, offer employment in available jobs which
they are qualified to perform to William J. Walker and William D.
Richardson, without discrimination in regard to their hire or tenure
of employment or any term or condition of employment because of
their membership or nonmembership in the Respondent, Local 1291,
International Longshoremen's Association, or in any other labor or-
ganization, and without prejudice to their seniority or other rights
and privileges.
(b) Notify William J. Walker and William D. Richardson in writ-
ing that it has no objection to employing them, that they will not be
discriminated against, and that at "shape-ups" there will be no dis-
crimination in regard to hire or tenure of employment or any term or
condition of employment to encourage membership in Respondent
Union or in any other labor organization.
(c) Require that its hiring foremen and employees having authority
to hire or discharge, hire longshoremen for "work gangs" without
regard to their union membership, affiliation, or activity.
(d) Upon request, make available to the Board or its agents, for
examination and copying, all pertinent records necessary to analyze
the amounts of back pay due and the right of employment under the
terms of this Order.
JARKA CORPORATION OF PHILADELPHIA 329
(e) Post at its places of business in Philadelphia, Pennsylvania,
and all places where notices are customarily posted, copies of the
notice attached hereto marked Appendix A.25 Copies of said notice,
to be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by Respondent Company's representative, be
posted by it immediately upon receipt thereof and be maintained by
it for at least sixty (60) consecutive days thereafter. Reasonable
steps shall be taken by Respondent Company to insure that said notices
are not altered, defaced, or covered by other material.
(f) Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
H. The Respondent, Local 1291, International Longshoremen's As-
sociation, of Philadelphia, Pennsylvania, and vicinity, and its officers,
representatives, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Causing or attempting to cause the Respondent, Jarka Corpora-
tion of Philadelphia, its officers, agents, successors, and assigns, and
other companies engaged in the business of general stevedoring in
the Philadelphia area, to discriminate against employees or applicants
for employment, in violation of Section 8 (a) (3) of the Act.
(b) Restraining or coercing employees or prospective employees of
Jarka Corporation of Philadelphia in the exercise of their right to
refrain from any or all concerted activities listed in Section 7 of the
Act, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify Jarka Corporation of Philadelphia in writing, and
furnish copies to William J. Walker and William D. Richardson, that
it has no objection to their employment and that of other persons,
without regard to their membership or nonmembership in the Re-
spondent Union or in any other labor organization, and without
prejudice to their seniority or other rights and privileges, except to.
the extent authorized by Section 8 (a) (3) of the Act.
(b) Post immediately in conspicuous places in its business office and
wherever notices to its members are customarily posted, copies of the
notice attached hereto marked Appendix B.2° Copies of said notice,
to be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by an official representative of Respondent
211n the event this Order is enforced by decree of a United States Court of Appeals,
there shall be nisei ted before the words "A Decision and Order" the words "A Decree of
the United States Court of Appeals Enforcing
° See sup) a, footnote 27.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, be posted by it immediately upon receipt, thereof and be main-
tained for a period of at least sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken by Respond-
ent Union to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Mail to the Regional Director for the Fourth Region signed
copies of the notice attached hereto as Appendix B for posting, the
Respondent Company willing, in places where notices to employees of
Jarka Corporation of Philadelphia are customarily posted. Copies
of said notice, to be furnished by the Regional Director for the Fourth
Region, shall, after being signed as provided in the preceding para-
graph of this Order, be forthwith returned to the aforesaid Regional
Director for posting.
(d) Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
III. The Respondents, Jarka Corporation of Philadelphia, its of-
ficers, agents, successors, and assigns and Local 1291, International
Longshoremen's Association, its officers, representatives, agents, suc-
cessors, and assigns shall, jointly and severally, make whole William
D. Richardson and William J. Walker for any loss of pay they may
have suffered by reason of the discrimination against them, in the
manner prescribed in the remedy section of the Board's Decision.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
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 our employees that:
WE WILL NOT encourage membership in LOCAL 1291, INTERNA-
TIONAL LONGSHOREMEN'S ASSOCIATION, or any other labor organi-
zation of our employees by discriminating in regard to the hire
or tenure of employment or any term or condition of employment
of any of our employees or prospective employees except to the
extent authorized by Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees or prospective employees in the
exercise of the right to refrain from engaging in concerted activi-
ties as guaranteed them by Section 7 of the Act except to the
JARKA CORPORATION OF PHILADELPHIA 331
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized by Section 8 (a) (3) of the Act.
WE WILL offer , upon application , employment in available jobs
which they are qualified to perform to WILLIAM J. WALKER and
WILLIAM D. RICHARDSON , without discrimination in regard to
their hire or tenure of employment or other terms or conditions of
employment because of their membership or nonmembership in
LOCAL 1291, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, or any
other labor organization.
WE WILL notify the above-named individuals in writing that,
upon their application, we will offer them such employment on a
nondiscriminatory basis.
WE WILL make whole WILLIAM D. RICHARDSON and WILLIAM
J. WALKER for any loss of pay suffered as a result of the dis-
crinination against them.
All our employees are free to become or remain or to refrain from
becoming or remaining members in good standing of the above-named
union or any other labor organization except to the extent that this
right may be affected by an agreement in conformity with Section 8
(a) (3) of the Act.
JARKA CORPORATION OF PHILADELPHIA,
Employer.
Dated------------------- By -----------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF LOCAL 1291, INTERNATIONAL LONGSIIORE-
MEN) S ASSOCIATION AND TO ALL LONGSHOREMEN IN THE PORT OF
PHILADELPHIA
a
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 JARKA CORPORATION or
PHILADELPHIA, its officers, agents, successors, and assigns, or any
other companies engaged in the business of general stevedoring in
the Philadelphia area, to discriminate against any employee or
prospective employee in violation of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees or prospective em-
ployees of JARKA CORPORATION OF PHILADELPFIIA or any other em-
ployer in the exercise of their right to refrain from engaging in
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activities as guaranteed them by Section 7 of the Act
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL make WILLIAM D. RICIiARDSON and WILLIAM J.
WALKER whole for any loss of pay suffered because of the dis-
crimination against them.
We have no objection to the employment of the above-named
individuals, without discrimination because of their membership
or nonmembership in the union, and without prejudice to their
seniority or other rights and privileges, or to the eniploynient of
other individuals on a nondiscriminatory basis. We have given
Jarka Corporation of Philadelphia notice to this effect.
LOCAL 1291, INTERNATIONAL
Lo=A GSH0RENIE-N *s ASSOCIATION.
Labor O'rganizationn.
Dated ------------------------ By -----------------------------
(Representative) ('t'itle)
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 F Don Wtisov. for the General Council.
Mr Robert G. Kelly, of Philadelphia, Pa, for Respondent Company
Mr Louis H. W17derinan-, of Philadelphia, Pa. for Respondent Union.
STATEMENT OF THE CASE
Upon charges duly filed, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsyl-
vania), duly issued complaints dated July 7, 1950, against Jarka Corporation
of Philadelphia, hereinafter called the Respondent Company, and against Local
1291, International Longshoremen's Association, hereinafter called Respondent
Union or the Union (Respondents are collectively referred to as Respondents),
alleging that Respondent Conipany had engaged in unfair labor practices within
the meaning of Section S (a) (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat 136, hereinafter called
the Act, and alleging that Respondent Union had engaged in unfair labor prac-
tice^ within the meaning of Section S (b) (1) and (2) and Section 2 (6) and
(7) of the Act. By order dated July 7, 1950, said Regional Director duly
consolidated these cases
With respect to unfair labor practices, the complaint against Respondent
Company alleges in substance that Respondent Company: (1) On or about
May 12, 1949, refused employment to William J. Walker because "he was not
and is not a paid up member of the union." (2) "For the purpose of en-
couraging applicants for employment to become and remain members of the
union" (a) between February 1, 1949, and July 1, 1949, refused to hire ap-
plicants for employment who were not members of the Union "unless they paid
for and received from the union temporary work cards and had agreed that
JARKA CORPORATION OF PHILADELPHIA 333
members of the union were to be hired before such applicants for employment";
(b) since .Janmuy 1, 1949 , refused to lure applicants for employment who
were not members of the Union unle., no members of the Union were applying
for employment . and ( c) since Jantmiy 1, 1949. has given preference in hiring
and tenure of employment to members of I lie Union
The complaint against Respondent Union alleges in substance that Respond-
ent Union for the purpose of encouraging membership theiem ( 1) Caused
Respondent Company to discnnuuate against William .1 Walker in the manner
indicated above and to discriminate against William 1) Richardson by refusing
him employment on of about little 7. 1919 ; (2) between February 1, 1949,
and July 1, 1949 , caused or attempted to cause Respondent Company and other
companies engaged in the business of general stevedoring in the Philadelphia
area to fail and refuse to hire applicants for employment who were not members
of Respondent Union unless they paid for and received item the Respondent
Union tempoiar y work cards and had agreed that members of Respondent
Union were to be hired before such applicants for employment , ( 3) since
January 1 , 1949, caused or attempted to cause Respondent Company and other
companies engaged in the business of general stevedoring in the Philadelphia
area to fail and refuse to hire applicants for emplo> went who were not mem-
bers of Respondent Union unless no members of Respondent Union were apply-
ing for employment . The complaint against Respondent Union as amended at
the hearing , over objections , further alleges that Respondent Union (a) caused
or attempted to cause Respondent Company to discriminate against William
D Richardson with i espect to whom membership in Respondent Union had
been denied on a ground other Haan his failure to tender periodic clues and
Initiation fees. and ( b) since January 1, 1949, caused or attempted to cause
Respondent Conipany and other companies engaged in the business of steve-
doring un the Philadelphia :nee to fail and iefuse to hire applicants for em-
ployment because they wee e not meuibei s of Respondent Union a nd with respect
to whom membership in Respondent Union had been denied or terminated on
^ a ground other than their failure to tender periodic clues and initiation fees.
Respondents filed separate answers denying the commission of unfair labor
practices.
Pau scant to notice. I hearing was held in Philadelphia , Pennsylvania, on
July 24, 2s., and 26 . 1950, before the undersigned Trial Ex:unnner The General
Counsel' and each of the Respondents were represented by counsel; all parties
participated in the hearing and were afforded full opportunity to be heard,
to exam ire a nd cross-examine witnesses , and to introduce evidence bearing
on the issues Respondents objected to allegations in the complaints based
upon matters stated it the amended charges but not in the original charges
contending that these allegations were barred by the 6-month provision of
,Section 10 ( h) of the Act On the, authority of Ccfhej Jilin bca Coinpeiiij, S6
NLRB 1:i7 , these objections were overruled At the conclusion of the General
Counsel ' s case un-chief , counsel for each of the Respondents moved to dismiss
the complaints because of insufficient evidence These motions were denied
At the conclusion of the bearing the parties waived oral argument and elected
to submit beefs A hi ief has been received fi one Respondent Union and has
been considered Counsel foe Respondent Company has advised that a brief on
"behalf of Respondent Company will not be filed.
Fii nn the entire iecord and front his obseiv , ition of witnesses the undersigned
makes the lollowng -
a ReferrnceS to the Geieiel Counsel ate to his repre1ontatne at the liearmg
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS of PACT"
I THE BUSINESS OF RESPONDENT CO',JPANY
Jarka Corporation_ of Philadelphia, it l'ennsvlvania corporation having its
principal office and place of business in Philadelphia, Pennsylvania, is engaged in
the operation of steamship terniinals and in the business of general stevedoring
in the port of Philadelphia which includes Philadelphia, Pennsylvania, Camden,
New Jersey, and Wilmington, Delaware In the course and conduct of its opera-
tions Respondent Company loads, unloads, and handles a substantial amount (m
excess of $5,000,000 worth) of- cargo in the course of transportation between
various States of the United States, between the United States and noncontiguous
territories or possessions, and between the United States and foreign countries.
Respondent Company's annual pad roll approximates $1,000,000
The undersigned finds that Resp:nrdent Company in the course and conduct
of its business is engaged in conimeice within the meaning of the Act
II TILE LABOR ORGANIZATION INVOLVED
Local 1291. International Longshoremen's Association is a labor of ganization
within the meaning of Section 2 (5) of the Act
III, THE UNFAIR LABOR PRACTICES
Bargaiuiiq History
On or about Api it 29, 1940, a collective bargaining agreement, herein called
the 1945 agreement, was executed by and between Deep Water Steamship Lines
and Contracting Stevedores of the Port of Philadelphia and Vicinity' and the
International Longshoremen's Association and its affiliated Locals' This agree-
ment provides inter alma:
Members of the party of the second part [the Union] shall have the preference
of all work pertaining to the loading and unloading of all cargoes and
bunkering of ships when such work is under the control of the party of the
first part [participating stevedoring companies]. When the party of the
second part cannot furnish a sufficient number of men to perform the work
in a satisfactory mariner, then the party of the first part may employ such
other men as are available, . . .
This agreement was made effective from October 1, 1945, to September 30, 1947,
with a proviso that "either party Wray give written notice on or before September
1, 1946, requesting reconsideration of the wage rates only."
On October 17, 1949, the parties to the 1945 agreement executed a supplement
revising the wage scale agreed upon and continuing without change the other
working conditions and terms of the 1945 agreement.
In 1947 The Philadelphia Marine Trade Association, also called PMTA, a non-
profit corporation representing stevedoring companies in the Philadelphia area,
including Respondent Company, in collective bargaining, was formed and be-
2 In making the findings of fact in this and other sections of this Report I have con-
sidered and weighed the entire evidence It would unnecessarily burden this Report to
describe, in minute detail, all evidence or disputed points Such testimony or other
evidence as is in conflict with the findings herein is not credited
3 The collective bargaining agent foi stevedoring companies, including Respondent
Companv
4 Including Local 1291.
JARKA CORPORATION OF PHILADELPHIA 335
came the successor to the Deep Water Steamship Lines and Contracting Steve-
dores of the Port of Philadelphia and Vicinity
On August 21, 1947, PMTA on behalf of its members, including Respondent
Company, and International Longshoremen's Association, Locals 1291, 1290, and
1694, executed an agreement establishing the period to be used in computing vaca-
tion pay, providing for an increase in the hourly wage sates and a 2-hour guaran-
tee of wages under certain conditions, and extending all other terms and condi-
tions of the 1945 agreement is supplemented until midnight, August 20, 1948.
In November 1948 PMTA and Respondent Union reached an agreement chang-
ing some of the terms and conditions of the 1945 agreement and as changed
making it effective October 1, 1948, to September 30, 1949 Neither the changes
nor the final terms of the agreement were reduced to writing and signed by the
parties. Nevei theless, the details of the understanding of the parties are set
forth in a letter dated June 16, 1949, from PMTA to its members and to Paul
Baker, vice president of Atlantic Coast District of the International Longshore-
men's Association (top ranking official of the ILA in the port of Philadelphia).
It appears from this letter and from the testimony of Baker that the parties,
agreed inter obis to replace the preferential hiring clause of the 1945 agreement
with "a union security clause conforming to the provisions of the Labor Manage-
ment Relations Act of 1947" ` and the undersigned so finds.
In November 1949 the pai ties assembled and endeavored to negotiate another
agreement. Shortly thereafter counsel for PMTA drafted a proposed contract
incorporating into one document all proposed terms and conditions of employ-
ment, and the parties have met and conferred concerning this instrument and
the terms thereof but have not as of this date reached a complete understanding
and therefore the parties are not now operating pursuant to an existing, signed,
written agreement. Nevertheless, the parties have reached an agreement con-
cerning some of the terms and conditions proposed in the draft of the PMTA
and have made these agreed-upon conditions of employ ment effective and use the
proposed draft as a basis for adjustments of disputes and differences that oc-
casionally arise.
The union-security clause of this proposed agreement reads as follows :
1 Union Security. As to any and all work covered hereunder, finally de-
termined by duly constituted public authority not to be subject to any
statute forbidding a preferential hiring provision, the employers agree to.
give a preference to longshoremen who are members of the Union in good
standing. As to all other work the employers agree to institute and maintain
a union shop as shall comply with Section 8 (a) (3) of the National Labor
Relations Act or any amendment thereto.
Joseph Kane, a member of the union negotiating committee, testified that the
union-security clause of the proposed contract was not discussed at the meetings
with the employer representatives and that the clause as drafted is agreeable
to the union committee. Nevertheless, it appears from statements by counsel
for Respondents that they are not in agreement as to the phraseology of this
clause but are in agreement as to its substance
In summary, and so far as union security is concerned, it appears that prior to
the enactment of the Labor Management Relations Act of 1947, Respondents
concluded an agreement which promided for preferential hiring of members of
Respondent Union; that after enactment date but prior to the effective date of the
Act Respondents agreed to an extension of preferential hiring conditions for a
6 The record does not indicate that an election pursuant to Section 9 (e) of the Act has
been held or drat the parties have agreed upon the text of a union -security clause
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period of not more than 1 year (until midnight, August 20,194S) ; that in Novem-
ber 1948 Respondents replaced the agreement concerning preferential hiring
conditions with an agreement providing for "a union-security clause conforming
to the provisions of the Labor Management Act of 1947" and that since the expira-
tion of the November 1948 agreement on September 30, 1949. Respondents have
been negotiating but have not reached a complete understanding concerning terms
and conditions of employment, but are nevertheless operating and functioning
pursuant to a tentative agreement that with respect to all work under the juris-
diction of the Act "the employers agree to institute and maintain a union shop as
shall comply with Section S (a) (3) of the -National Labor Relations Act or any
amendment thereto."
It appears to the undersigned that any contention that the afore-mentioned
agreements and/or arrangements between Respondents concerning union security
are poet sc violative of the Act, must be, and it hei eby is, ie,lected
flti ilig System
Respondent Union maintains a list of stevedoring companies in the port of
Philadelphia and daily contacts or is contacted by these companies and given the
anticipated number of longshoremen that will be required the following day and
the location or locations where needed Respondent Union then prepaies mimeo-
graphed papers showing this information (schedule of woik possibilities) and
posts these mimeographed papers at the union hall ° and it tour different points
on the water front where they aie available for public inspection
On the day that the svoik is to be' pci loimed the hiring foienian for each com-
pany involved secures from the officials of those companies a number of work
tickets The number of work tickets obtained varies according to the size of the
work gang anticipated. Usually the work gang consists of either 16 or 21 long-
shot ennen. After obtaining the work tickets the hiring foreman goes to a specific
location (a different location for each company) along the water front where
longshoremen desiring work assemble, called a "shape-up." The hiring foreman
selects from the men assembled a sufficient number of longshoienien to constitute
the work gang desired and gives to each man selected a woik ticket indicating
that he has been hued
Respondent Union issues each month to umembei s in good standine a union but-
ton, called a woiking button, and union nienibels are required (under the bylaws
of Respondent Union) to wear this button in such fashion as to be discerned at a
glance, and to wear it "on the right side of the cap when convenient to do so "
During the period from January 1949 to June 1949 Respondent Union. upon pay-
ment of a fee, issued to nonmembers a card petmittiug the bearer to vAork as a
temporary longshoreman during a specific period (the mouth for which the fee
was paid) with the understanding that regular members of the Union in good
standing, "are to be hired first "
The actual composition of the work gang hued at each shape-up is left (by
the stevedoring companies) to the discretion and selection of the hiring foreman
who endeavors. by hiring repeatedly the seine individuals. to establish a i egular
gang or a nucleus of a regular gang When a sufficient number of formei mem-
hers of the gang do not appear at the shape-up or a ciew larger than the regular
nucleus is desired, the foreman selects such additional longshoremen as may
be needed from those present at the shape-up in the following manner : From
among union members present ; if there are not present a sufficient number of
6 Union hall open to union and nonunion Iongrhorenien
JARKA CORPORATION OF PHILADELPHIA 337
union members to fill the , desired quota the foreman ( during the periods permit
cards are in use ) selects next from the permit card holders present and if,
after selection in this manner , there are still available job assignments the
foreman selects from the remaining assemblage , consisting of nonunion , noncard
holders.
Where a longshoreman , who through repeated selection by the foreman has
become a member of the nucleus of that foreman 's gang, does not appear at the
shape-up the foreman endeavors to fill his position in the manner indicated
above, i. e., in the following order: ( 1) From union members; (2) from permit
card holders; and ( 3) from nonunion , nonpermit card holders . In the latter
instance ( where a replacement is hired for a regular member of the gang) a
union member replacement is usually rehired at each shape -up thereafter until
the particular cargo job is completed , even though the regular member of that
gang may appear at subsequent shape-ups but nonunion longshoremen are usually
replaced at the next shape-up at which the regular member of the gang appears
seeking work.
The system of hiring outlined above during the period involved herein was
employed by hiring foremen of various stevedoring companies , including
Respondent Company.
In summary , a longshoreman not a member of the Union or cleared by the
Union can obtain employment as a casual by presenting himself at the shape-up
and awaiting opportunity to be hired after available assignments have been
offered to union members and to union-cleared longshoremen.'
The record reveals that most though not all hiring foremen in the port of
Philadelphia are members of Respondent Union and that practically all of the
regular hiring foremen ( as distinct from extra hiring foremen hired from time to
time to handle unusual quantities of work ) of Respondent Company are members
thereof.
Under the bylaws of Respondent Union, delegates are elected officers of Re-
spondent Union whose duties are defined as follows :
The delegates shall act as organizer and business agent for the Local. He
shall visit all places where members of the Local are employed and see as
nearly as possible that the rules and regulations governing working condi-
tions are carried out . He shall see that all members employed are in good
7 At the hearing the General Counsel made an offer of proof to the effect that during
April 1949 temporary card holders were told by officials of Respondent Union that they
must shape up at a special location rather than at customary shape -up points and that
they could not be hired until after all union members desiring work had been exhausted,
that these temporary card holders did shape up at this special location and that hiring
foremen , after exhausting the union members available at the customary shape'up - loca-
tions , went to this special location and there completed their desired complement of long-
shoremen The undersigned indicated , however , that he would receive evidence bearing
upon restraint or coercion by officials of Respondent Union, and evidence that hiring
foremen or other company officials participated in such arrangements other than by merely
going to the special shape -up location to complete their work gangs . No evidence of
restraint or coercion other than that inferred in the offer of proof was introduced and
the only evidence on the latter point cohsists of testimony that William D. Richardson,
on one occasion during 1\larch 1949 , appeared at a shape -up of the Lavina Shipping Com-
pany ( not a respondent herein ) and was asked by the hiring foreman for that company
what he was doing down there , and told that he was supposed to he at the special shape-up
location for card men . Richardson testified that he thought the toieman was kidding,
that he (Richardson ) was not a card holder at that time and that he ( Richardson) "had
been working there quite a bit." The record reveals that not all hiring foremen are
members of Respondent Union and there is no evidence indicating whether this foreman
was or was not a member thereof.
953841-52-vol 94-23
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing and that no outsiders are permitted to work as long as union men
are available!
Respondent Union, in situations where sufficient work is not available for all
persons desiring work, seeks to obtain preference in employment for its members
and, accordingly, requires permit holders to, agree that union members will have
first choice of available work, has a rule establishing a $25 fine against member-
hiring foremen for offering work to nonunion longshoremen when union members
are available,9 and through its delegates at shape-ups seeks to prevail upon hiring
foremen to offer work to union members and union -cleared longshoremen before
offering it to nonunion longshoremen . The evidence establishes that delegates
at the shape -ups, in addition to requesting hiring foremen to give preference to
union members have, on various occasions, called the attention of the hiring
foreman to the possibility of a fine should he violate the rules respecting prefer-
ence for members of Respondent Union 10
The General Counsel contends , in view of the supervisory functions of the
hiring foremen , their membership in Respondent Union, their cognizance of the
union rule regarding preference of employment and possible fine for violation
thereof, that hiring foremen engaging in the afore-mentioned conduct act as agent
for and bind their respective stevedoring companies , including Respondent Com-
pany, and act as agent for and bind Respondent Union, and that therefore Re-
spondent Company (through hiring foremen) discriminated against nonunion
applicants for work and Respondent Union caused or attempted to cause Re-
spondent Company and other stevedoring companies in the Philadelphia area
to discriminate against nonunion applicants for work in violation of Section 8
(a) (3) of the Act. Respondent Company contends that hiring foremen engag-
ing in the afore-mentioned conduct do so without authority from and to the
detriment of Respondent Company and act in the interest of Respondent Union
and that Respondent Company is not responsible for such conduct . Respondent
Union contends it is not responsible under the Act for the afore-mentioned con-
duct of hiring foremen "that these foremen are the agents of the employer and
have no relationship other than membership , to the Union " There is no question
but that hiring foremen are supervisory employees of the concerns for whom they
work and the undersigned concludes that when they, in the course of their em-
ployment , engage in conduct proscribed by the Act , including the conduct outlined
above, their conduct may be attributed to their employers, including Respondent
Company. (See Somerset Classics, Inc., 90 NLRB 1676.)
While the record reveals generally that hiring foremen pursue the hiring
policy outlined above and that generally hiring foremen are members of Re-
spondent Union, it does not establish detailed instances , within the period
covered by the complaint herein, where named union member-hiring foremen
for stevedoring companies, other than Respondent Company, actually gave pref-
erence of employment to union members. On the other hand the record does
8 The contention that this section of the bylaws has not been enforced and that it
was suspended or disregarded after the passage of the Labor Management Relations Act
of 1947 is rejected . The record establishes cognizance by union officials that preferential
hiring is unlawful under the Act but does not establish disregard of this bylaw by union
delegates To the contrary it establishes that this bylaw has never been formally sus-
pended , modified , or rescinded , and, as noted in this Report , that frequently delegates
attempt to see that no outsiders are permitted to work as long as union men are available
° No fines pursuant to this rule have been imposed although union member -hiring fore-
men have on occasion hired nonunion nien when union workers wanted the job
10 Thus, Delegate Varlick told the foremen if they didn ' t want to pay a fine , hire only
button men (union members) ; "hire union men if you don't want a fine , if you don't
want to pay no fine , you'd better take these book men [union members]."
JARKA CORPORATION OF PHILADELPHIA 339
establish and the undersigned finds ' that union delegates , during the period
involved herein, sought to obtain preferential employment for union members
by threatening hiring foremen , including union member -hiring foremen" with
imposition of a fine unless they gave such preference , and this is conduct pro-
scribed by the Act for which Respondent Union is responsible .12 ( See Denver
Building and Construction Trades Council , et at. ( Henry Shore ) 90 NLRB 1768;
International Longshoremen 's and Warehousemen ' s Union, Local No. 16 , C. I. 0.,
(Juneau Spruce Corporation ), 90 NLRB 1753, and Newspaper and Mail Deliv-
erer's Union of New York & Vicinity, et at., 93 NLRB 237.
William D. Richardson
On April 29, 1949, William D. Richardson (not a member of Respondent
Union ), while working as a longshoreman in a work gang under Hiring Foreman
Ben Gibbs ( a hiring foreman for Respondent Company ), received a mashed hand.
About 3 or 4 weeks later and thereafter Richardson, still nursing an injured hand,
obtained work as an extra hand ( making the work gang 22 instead of 21 long-
shoremen ) in a work gang under Gibbs and was given light work since he could
use only one hand. On June 7, 1949, Gibbs, for the first time since Richardson's
injury, handed him (Richardson ) a work ticket indicating he was to work that
day as a member of the work gang of 21 rather than as an extra hand. Shortly
thereafter and before the complete selection by Gibbs of the work gang for that
day, Union Delegate Samuel Kavalauskas stated to Gibbs, "You know that is
not a button man," and when Gibbs replied , "I know he is not ; I have been
carrying him with me ever since he got hurt; he got hurt with me." Kava-
lauskas said, "You can't carry him this morning There is a book man [union
member] here . " 13 Thereupon Gibbs retracted the work ticket from Richardson
and gave it to a member of Respondent Union.
About June 9, 1949, Richardson appeared at a shape-up where Gibbs was hiring
and was told by Gibbs that he (Gibbs ) couldn't afford "to pay out no fine for
you. I want to do you a favor, but I can't pay out a fine for nobody." 14
Richardson was not a regular or recurring member of the work gang under
Gibbs and did not thereafter appear at a shape -up where Gibbs was hiring.
Richardson did, however , appear at other shape -ups and it was stipulated that
he worked as a longshoreman for Respondent Company on June 9, 20, 21, 22,
and 23, 1949. However the work on June 9 was unauthorized work which Rich-
ardson undertook without a work ticket and without sanction by officials of
Respondent Company. The work on the other dates was not the same type of
work that Richardson had done prior thereto (he worked as a member of a gang
unloading railroad cars rather than as a member of a gang handling cargo
aboard ships) and was at a lower rate of pay per hour.
Richardson testified that he left the water front during September, October,
November, and December, 1949, that since January 1950 lie has frequently worked
for various stevedoring companies, including Respondent Company, and that no
further efforts have been made to stop him from working.
11The finding that union member -hieing foremen were threatened is based upon the
composite and correlated evidence rather than upon isolated specific testimony.
12 The undersigned accordingly does not consider it necessary to determine the issue
as to whether union member -hiring foremen engaging in discriminatory conduct act for
and on behalf of Respondent Union See International Longshoremen 's and Warehouse-
men's Union, et al , 90 NLRB 1021, footnote 7
1s Kavalauskas ' testimony to the contrary is not credited
1a Gibbs' testimony to the contrary is not credited
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although no specific threats were made to Gibbs by Kavalauskas on June 7, it
appears to the undersigned that this colloquy, when viewed in the light of the
entire record, supports a finding that Respondent Union thereby caused or at-
tempted to cause Respondent Company to discriminate against Richardson, and
the undersigned so finds. Absent this colloquy it is unlikely that Gibbs would
have discriminated against Richardson. When Kavalauskas pursuing his normal
duties as a union delegate told Gibbs "you can't carry him [Richardson] this
morning. There is a book man [union member] here" he necessarily contemplated
and anticipated that union member-hiring foreman Gibbs would give effect to
Respondent Union's rule regarding preference of employment to union members,
precisely as Gibbs did in this instance. The undersigned further finds that by
the afore-mentioned conduct of Gibbs, Respondent Company discriminated
against Richardson and thereby violated Section 8 (a) (1) and (3) of the Act.
Both Respondents contend that if the evidence establishes, as it does, that the
membership rolls of Respondent Union are restricted and Respondent Union
will not admit Richardson to membership, they cannot be regarded as having
encouraged membership therein and that the Act forbids discrimination in order
to encourage union membership. The discrimination forbidden is discrimination
"to encourage or discourage membership in any labor organization." Thus, any
discrimination, whether based on membership, nonmembership, or any other
ground, is prohibited if it has the effect of encouraging or discouraging member-
ship in a labor organization.
That Richardson was discriminated against because of his nonmembership in
Respondent Union is clear. The normal effect of the discrimination against
Richardson was to encourage nonmembers to join Respondent Union as a strong
organization whose favor and help is to be sought and whose opposition is to be
avoided. The fact that Richardson did not and could not become a member of
Respondent Union does not detract from Respondent Company's effort to en-
courage membership therein. Respondents' conduct was calculated and tended
to encourage membership in the Union and is no less violative of the Act because
such conduct may not have achieved its purpose. If, as has been found, the
discrimination encouraged membership in Respondent Union and if, as has been
found, Respondent Union caused Respondent Company to discriminate against
Richardson, Respondent Union, under the express language of the statute, vio-
lated Section 8 (b) (2) of the Act, and the undersigned so finds.
It is asserted by the General Counsel that by reason of its status as a "closed
union" the Union also violated the following emphasized portion of Section 8
(b) (2) :
(b) It shall be an unfair labor practice for a labor organization or its
agents-
(2) to cause or attempt to cause an employer to discriminate against
an employee in violation of subsection (a) (3) or to discriminate against
an employee with respect to whom membership in such organization
has been denied or terminated on some ground other than his failure to
tender the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership. [Emphasis supplied.]
Since violations of Section 8 (a) (3) on the part of the Respondent Company and
of 8 (b) (2) on the part of the Union have already been found, it is unnecessary
further to construe these portions of the statute or to determine whether the
facts establish violations of them.
JARKA CORPORATION OF PHILADELPHIA
William J. Walker
341
William J. Walker, a longshoreman for 52 years and a member of the Inter-
national Longshoremen's Association since 1917, stopped paying dues to Re-
spondent Union in 1947. Although the constitution of the International Long-
shoremen's Association provides that "any member six months or more in arrears
in the payment of dues or assessments shall be suspended and dropped from the
Local without a hearing and without further notice," Respondent Union (Local
1291) pursued a policy of notifying its members when they are dropped from its
membership rolls. Walker testified he was never notified that he was expelled or
suspended and James T. Moke, assistant financial secretary of Respondent
Union, testified he could not say whether Walker "was on the 1949 rolls [of
Respondent Union] or not."
Prior to 1941 Walker, by being hired repeatedly, became a regular member of
the work gang under Ed Goldman, a hiring foreman for Respondent Company.
From 1941 to 1945 Walker was employed by various stevedoring companies, in-
cluding Respondent Company, as a hiring foreman. Since 1945 Walker has
worked as a longshoreman but has not been employed repeatedly as a member
of any particular work gang. He did however work for Respondent Company
in 1949 during the payroll weeks ending January 9, 16, 23, 30; February 6, 13,
20, 27; March 13, 20, 27; April 3, 10, 17, 24; May 1 and 15.
In May 1949 Respondent Company needed an additional work gang (a minimum
number of work gangs are normally assembled by Respondent Company and as
occasion requires additional gangs are assembled) and James Craft, a member
of Respondent Union, was employed as the hiring foreman for this temporary
work gang. On May 10, 1949, Walker was hired by Craft and worked with this
gang. At the end of the day Craft announced "all hands in the morning," meaning
those desiring reemployment be present at the shape-up the following day. The
following day (May 11, 1949) Walker appeared at the shape-up location and
prior to the distribution of work tickets conferred with Craft about certain
"rigging" that was needed aboard the ship where the work was to be performed.
Craft told Walker to get the required "rigging." While Walker was getting
the "rigging" Union Delegate Henry Varlick talked to Craft and at the conclusion
of their talk, Craft approached Walker and said, "I am sorry to tell you, but
Henry tells me don't carry you this morning." 15 Walker said to Craft, "That is
all right. I will see Henry." Walker then asked Varlick why he (Walker)
could not go to work and Varlick said, "You are not up in your dues and you
have to go to the hall and see Ford, financial secretary." 16 Walker then went
to the union hall and conferred with officials of Respondent Union. He was told
that he could not work unless he paid up his dues . The following day (May 12,
1949) Walker appeared at the shape-up location and was told by Craft, "I got
another man in your place now." 1'
Walker thereafter appeared at various shape-ups but was not hired and ceased
appearing at shape-ups after-July 1949. Any contention that, because of the
failure to appear at shape-ups after July 1949, any loss of wages thereafter was
wilfully incurred is not sustained. Walker was not required to speculate on
whether he would receive employment at shape-ups thereafter.
15 Craft did not testify in these proceedings . Varlick testified he told Craft the long-
shoremen in this gang considered Walker incompetent and objected to working with
him. From his observation of the witness and after analyzing Varlick's testimony in the
light of the entire record, the undersigned does not credit this testimony by Varlick.
10 Varlick 's testimony to the contrary is not credited.
1z The record does not establish whether the other man was a member of Respondent
Union.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the entire record the undersigned finds that Walker was
discriminated against by Respondent Company because he was not a paid-up
member of Respondent Union.
Not every discharge brought about by a union subjects the union to liability
under Section 8 (b) (2) of the Act and it must be established that the union,
within the meaning of that section, caused or attempted to cause such discrimina-
tion. Nevertheless, the statute does not require direct, positive evidence of such
conduct but merely that such conduct be established by a preponderance of the
evidence which includes all lawful inferences that may be drawn. The under-
signed believes and finds that a preponderance of the evidence establishes that
Respondent Union caused Respondent Company to discriminate against Walker
in violation of Section 8 (b) (2) of the Act.
It is extremely unlikely that Craft would have discriminated against Walker
unless Varlick had taken some action, veibal or otherwise, which caused him
(Craft) to engage in this conduct. That such conduct was engaged in is evi-
denced by the facts themselves and the undersigned finds from the res gestae
that Varlick's action caused Craft to discriminate against Walker because he
was, not a paid-up member in Respondent Union. (See United States v. United
Mine Workers of America, 330 U. S. 258 and United States V. International Union,
United Aline Workers of America, 77 F. Supp. 563, affirmed 177 F. 2d 29, cert.
denied 338 U. S. 871.) When Respondent Union (through its delegate, Varlick),
pursuing its normal procedure, sought to cause the discrimination against Walker,
it necessarily contemplated and anticipated that its member (Hiring Foreman
Craft) would give effect to its rules requiring preference of employment to union
members, precisely as he did in this instance.
The normal effect of the discrimination against Walker was to encourage
membership in good standing in Respondent Union and obedience of all its
members of such rules as Respondent Union may prescribe's and thereby
strengthen Respondent Union both in its control of its members for their general
mutual advantage and in its dealings with their employers, as their representa-
tive. It thus encouraged nonmembers to seek membership in Respondent Union
as a strong organization whose favor and help was to be sought and whose
opposition was to be avoided. In its effect upon members alone it must be
regarded as encouraging membership in Respondent Union. The discrimination
in the present case also had the normal effect of encouraging Walker and other
members to retain their membership in good standing in Respondent Union
either through fear of the consequences of dropping out of membership, or
through hope of advantage in staying in. -
Upon the foregoing considerations the undersigned concludes that in preventing
Walker's hire by Respondent Company on-May 11, 1949, because he was not a
paid-up member in Respondent Union, the Respondent Union caused Respondent
Company to discriminate in violation of the Act and Walker to lose employment.
Ultimate Findings and Conclusions
In view of the foregoing and upon a consideration of the entire record, the
undersigned finds and concludes :
18 The proviso of Section 8 (b) (1) (A) of the Net retaining "the right of a labor or-
ganization to prescribe-its own rules with respect to the acquisition or retention of
membership therein" permits a union to enforce whatever rules it may prescribe and
thus, incidentally, to require the participation of its members in particular concerted
activities only to the extent that penalties for infractions of the rules may affect "acquisi-
tion or retention of membership." It does not, however, reserve to a union the right to
enforce its rules by causing an employer to refuse to hire or to discharge an offending
member as the Respondent Union did in this present case.
JARKA CORPORATION OF PHILADELPHIA 343
1. Local 1291, International Longshoremen's Association, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. That Respondent Company violated Section 8 (a) (1) and (3) of the Act by
pursuing a hiring system or procedure whereby longshoremen not in good stand-
ing in and/or approved by a labor organization were discriminated against.
3. That Respondent Company violated Section 8 (a) (1) and (3) of the Act by
discriminating in regard to the hire and tenure of employment of William D.
Richardson and William J. Walker, thereby encouraging membership in a labor
organization.
4. That Respondent Union violated Section 8 (b) (2) of the Act by causing
Respondent Company to discriminate against William D. Richardson and William
J. Walker, and by attempting to cause Respondent Company and other companies
engaged in the business of general stevedoring in the Philadelphia area to discrim-
inate against longshoremen not in good standing in and/or approved by Respond-
ent Union.
5. That Respondent Union restrained and coerced employees in the exercise of
the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (b) (1)
(A) of the Act by causing Respondent Company discriminatorily to discharge
William D. Richardson and William J. Walker, and by attempting to cause
Respondent Company and other companies engaged in the business of general
stevedoring in the Philadelphia area to discriminate against longshoremen not in
good standing in and/or approved by Respondent Union ( see Clara-Val Packing
Company, 87 NLRB 703).
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
IV. THE REMEDY
Having found that Respondents and each of them have engaged in unfair labor
practices it will be recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent Company discriminated against nonunion
longshoremen in its selection of longshoremen for available work (work gangs).
It will be recommended that Respondent Company discontinue such discrimina-
tion and to accomplish this objective that Respondent Company require its hiring
foremen and employees having authority to hire or discharge, hire longshoremen
'("work gangs") without regard to their union membership, affiliation, or activity
and that Respondent Company take all reasonable steps and precautions to carry,
out and make effective this requirement.
It has been found that Respondent Company unlawfully discriminated against
William D. Richardson and William J. Walker and that Respondent Union
caused said discrimination. It also appears that Richardson since January
1950, "has frequently worked for various stevedoring companies including Re-
spondent Company and that no further efforts have been made to stop him
from working." Accordingly, no recommendation of reinstatement will be made
with respect to him. The usual order directing reinstatement will not be
recommended with respect to Walker since the evidence reveals that be was
not'hired repeatedly as a member of a "regular" work gang and there is no
evidence that absent the discrimination he would have become a member of
a "regular" work gang. However, it will be recommended that Respondent
Company notify Walker, in writing, that it has no objection to employing him
and that he will not be discriminated against to encourage or discourage mem-
bership and/or good standing in Respondent Union and that at "shape-ups"
there will be no discrimination in regard to hire or tenure of employment,or
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any term or condition of employment to encourage membership in Respondent
Union. It will be recommended that Respondent Union notify the Respondent
Company in writing, and furnish a copy of the notice to Walker, that it has
no objection to the employment of Walker by Respondent Company.
It will be further recommended that Respondents jointly and severally make
whole, according to the formula set forth below, the two above-named in-
dividuals (Richardson and Walker) for any loss of pay, they may have suffered
by reason of the discrimination against them.
Richardson's loss of pay shall be computed from the date of the discrimina-
tion against him to September 1949, the date that he left the water front.
Walker's loss of pay shall be computed from the date of the discrimination
against him to the date on which Respondent Company serves the afore-
mentioned notice. In computing the loss of pay due Richardson and Walker,
the customary formula of the Board shall be followed. See F. W. Woolworth
Company, 90 NLRB 289.
As it would be inequitable to Respondent Union to permit the amount of its
liability to increase despite the possibility of its willingness to cease past dis-
crimination, in the event Respondent Company should fail to notify Walker
as recommended herein, the undersigned will provide that Respondent Union
may terminate its liability for further accrual of back pay by notifying Re-
spondent Company in writing that it has no objection to the employment of
Walker as provided herein, and it is recommended in that event that Respondent
Union shall not thereafter be liable for any back pay accruing after 5 days from
the giving of such notice. Absent such notification it is recommended that
Respondent Union shall remain jointly and severally liable with Respondent
Company for all back pay that may accrue.
In order to insure expeditious compliance with the recommended back-pay
order it is likewise recommended that Respondent Company be ordered, upon
reasonable request, to make all pertinent records available to the Board or its
agents.
[Recommended Order omitted from publication in this volume.]
BOEING AIRPLANE COMPANY ( WICHITA DIVISION ) and INTERNATIONAL
ASSOCIATION OF MACHINISTS , BOEING LODGE No. 834, PETITIONER.
Case No. 17-RC-940. May 8, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William J. Scott,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Reynolds].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
94 NLRB No. 60.