The Radio Officers' Union of The Commercial Telegraphers Union

National Labor Relations Board - Board Decisions

Apr 18, 1951

93 N.L.R.B. 1523 (N.L.R.B. 1951)

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