Houston Maritime Association, Inc.

National Labor Relations Board - Board Decisions

Aug 8, 1958

121 N.L.R.B. 389 (N.L.R.B. 1958)

IOUSTON MARITIME ASSOCIATION, INC 389
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (5) of the Act
5 By the said refusal to bargain , and by informing its employees , in effect, that
it would not bargain on the issues of union security and merit wage increases
and that it would not enter into further negotiations with the Union on a contract
unless the Union accepted its contract proposals, and by threatening its employees
with loss of employment if they engaged in a strike , Duro interfered with, re-
strained, and coerced its employees in the exercise of rights guaranteed them in
Section 7 of the Act, and thereby engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act
6 The aforesaid unfair labor practices are unfair labor practices affecting coati-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication
Houston Maritime Association, Inc., and Master Stevedore Asso-
ciation of Texas and International Longshoremen's Associa-
tion, Independent, Local No. 1273, Party to the Contract and
A. M. Clay, J. A. Garza, W. J. Nemeth
International Longshoremen 's Association, Independent, Local
No. 1273 and A. M. Clay, J. A. Garza, J. D. Williamson, W. J.
Nemeth. Cases Nog 39-CA-480, 39-CA-484, 39-CA-555, 39-CB-
103,39-CB-104, 39-CB-705, and 39-CB-1,03 Augt st 8, 1958
DECISION AND ORDER
On September 26, 1956, Trial Examiner C W Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in certain other alleged
unfair labor practices and recommended that certain allegations of
the complaint be dismissed Thereafter, the General Counsel filed
-exceptions to the Intermediate Report and a brief and argument in
support of the exceptions No other exceptions or briefs were timely
filed
Pursuant to Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel
[Chairman Leedom and Members Bean,and Jenkins]
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 Interme-
diate Report, the exceptions, the brief, and the entire record in these
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner insofar, as they are consistent with this
decision
121 NLRB No 57
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
1. We adopt the findings and conclusions of -the Trial Examiner,.
to which no timely exceptions have been taken, that the Respondents
violated Section 8 (a) (1), (2), and (3), and Section 8 (b) (1) (A)
and (2) of the Act, respectively, by engaging in the following conduct
as more fully set forth in the Intermediate Report :
a. The Respondent Employers unlawfully discriminated against
Clay, Williamson, Nemeth, Knowles, and Garza; engaged'in unlawful
discriminatory practices with respect to the referral and employment
of longshoremen; unlawfully required their employees to designate
the Respondent Union as bargaining representative as a condition of
employment; and engaged in other unlawful assistance and support
of the Respondent Union.
b. The Respondent Union unlawfully caused,the Respondent
Employers- to discriminate against the above-named employees;
caused the Respondent Employers to engage in unlawful discrimina-
tory practices with respect to the referral and employment of long-
shoremen; and unlawfully coerced employees with.respect to the desig-
nation of their bargaining representative.
2. We do not adopt the Trial Examiner's conclusion that Rule No. 6
in the Respondents' contract is not per se a violation of the Act. This
rule reads as follows :
Rule No. 6-Eligible Gang Foremen
The Master Stevedores Association of Texas shall have the
right•to,name men as gang foremen. The Locals to submit a list
of gang foremen who are qualified, in the opinion of the local,
'to the Master Stevedores Association of Texas, from which list
the Master Stevedores Association of Texas to name gang fore-
men. The Locals to submit, within fifteen (15) days from the
date of this contract, lists containing not less than three (3)
times the number of men required for gang foremen. -
The Master, Stevedores Association of Texas shall have the
right to delete names from the lists submitted by the Locals, and
substitute other men from lists submitted by the Locals. After
the Master Stevedores Association of Texas have made deletions
from the original lists as submitted, the locals will have- the right
to call a meeting with the Stevedores to discuss the reason for the
individual deletions, never-the-less the right of deletions remains
with the Stevedores. If the Locals fail to carry out the proce-
dure as outlined above, to furnish the lists within fifteen (15)
days, then the Stevedores shall have the right themselves to name
as gang foremen any man from the' gang. This right of selec-
tion by the Stevedores shall'continue until such time as the re-
quired number of eligible gang foremen are approved.
HOUSTON MARITIME ASSOCIATION, INC. 391
There shall be only one gang foreman to each working ship.
Gang foremen to have supervision. of placement of all men in the
gang subject to supervision and approval of the walking foreman.
Gang foremen to receive ten (10) cents per hour over and
above the other men in the gang.
As clearly, set forth -therein, this rule obligates the Respondent
Employers to select gang foremen from lists submitted by the union.
parties to the contract, including the Respondent Union, but does not
in any manner limit such Union's discretion to determine whose names
shall be included'on the lists. Although under the rule the Employers
may delete names from such lists, they may make substitutions only •
from other similar lists.' By virtue of this rule, therefore, the Re-
spondent Employers have clearly delegated to the union parties to the
contract, including the Respondent Union, complete unilateral con-
trol over the selection of individuals who may be considered by the
Respondent Employers for the positions of gang foremen, and there-
fore, in effect, the right to name the gang foremen.2 Moreover, as
the employment of stevedoring gangs, including gang foremen, is
intermittent (gangs being hired only for the duration of a particular
loading or unloading job), the ability of gang foremen to secure new
employment after a job is finished necessarily depends under the con-
tract on the continued inclusion of their names on the lists provided
for in Rule No. 6. Because of the unfettered right in the unions to
determine the composition of the hiring lists and the power inherent
therein to discipline gang foremen by excluding their names from
future lists, the contract gives to the Unions not only the power to
name the gang foremen, but also as an inevitable consequence the
power to control their actions. .
Rule No. 6, in addition to the foregoing, also gives to gang foremen
supervision of the placement of all men in the gang, subject to the
supervision and approval of the walking foreman. As a consequence
gang foremen 'who, as found by the Trial Examiner, are clearly
supervisors within the meaning of the Act,-have under the contract
effective initial authority and responsibility with respect to the hiring
and placement of the Respondent Employers' employees. With re-
spect to such hiring and placement, gang foremen are'not, however,
solely the agents of the Respondent Employers'but are, as found
above, subject to the control of the union parties to the contract, thus
vesting in such Unions, through their power to control the actions of
these gang foremen, the power to control, the hiring and placement
3 As a temporary expedient , if the Unions are, delinquent in submitting such lists, the
Employers have the right to name a member of the gang as gang foreman.
2 Contrary to the apparent conclusion of the Trial Examiner , the provision in the rule
giving the Respondent Employers "the right to name men as gang foremen " is not an
unfettered right, but rather is clearly limited by the other provisions of the rule by which
the provision's literal language is effectively negated.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Respondent Employers' employees. By virtue of Rule No. 6,
therefore, the Respondent Employers have virtually divested them-
selves of their hiring and placement functions and have abdicated
such functions to the Respondent Union and the other union parties
to the contract.
As the Board has recently held, provisions of an agreement between
an employer and a union which establish an exclusive hiring arrange-
ment constitute an inherent and unlawful encouragement of union
membership if they confer unfettered control over the hiring process
to the union, but not if they merely confer authority with respect to
-the hiring process subject to safeguards which the Board deems essen-
tial.' These safeguards, as the Board has stated, shall consist of ex-
plicit provision in the agreement that: (1) Selection of applicants for
referral to jobs shall be on a nondiscriminatory basis and shall not be
based on , or in any way affected by, union membership, bylaws, rules,
regulations , constitutional provisions, or any other aspect or obliga-
tion of, union membership, policies, or requirements; (2) the employer
retains the right to reject any job applicant referred by the union;
and (3) the parties to the agreement post in places where notices to
employees and applicants for employment are customarily posted, all
provisions relating to the functioning of the hiring arrangement, in-
cluding the safeguards that we deem essential to the legality of an
exclusive hiring agreement., In the instant situation the agreement
clearly does not include the safeguards essential to the legality of an
exclusive hiring arrangement' Accordingly, for the reasons stated in
the above-cited case, we find that Rule No. 6 contravenes the Act.
More particularly we find that, by entering into. and maintaining an
agreement containing the, aforementioned Rule No. 6, the Respondent
Employers have violated Section 8 (a) (1), (2), and (3) of the Act,
and the Respondent Union •has violated Section 8 (b) (1) (A)
and (2).'
3. We also do not agree with the Trial Examiner that the Respond-
ents did not violate the Act by requiring employees, as a condition of
employment, to pay a certain percentage of their wages to the Re-
s Mountain Pacific Chapter of the Associated General Contractors, Inc., et at., 119
NLRB 883.
4 We have given due consideration to the following provisions of the agreement : "Said
local union agrees to provide such hiring halls and to maintain and operate them open
to any person seeking employment as longshoremen irrespective of union affiliation. . . .
It is agreed in the operation of such hiring halls and in the selection of men for employ-
ment the Second Parties Will Not Knowingly or intentionally engage in any discrimina=
tory practices of any kind which are prohibited by the Labor Management Relations Act
of 1947."
, In view of the discriminatory practices flowing from the Respondent Employers' prac-
tice of delegating to the Respondent Union the authority and function of selecting the
gang foremen, as found by the Trial Examiner, we agree with the General Counsel that
by such delegation in practice the Respondent Employers have violated not only Sec-
tion 8 ( a) (2), as found by the Trial Examiner , but also Section 8 (a) (1) and (3),
and that the Respondent Union has violated Section 8 ( b) (2) and ( 1) (A).
HOUSTON MARITIME ASSOCIATION, INC. 393
spondent Union. As set forth in the Intermediate Report, this re-
quirement is contained in,- and' is an integral part of, the same docu-
ment by which the employees were unlawfully required as a condition
of employment to designate the Respondent Union as their bargaining
'representative. As this requirement concerning payments to the Re-
spondent Union for disbursement to union members only is an integral
part of the same unlawful' practice as the requirement concerning
designation of the, Respondent Union, it constitutes equally unlawful
assistance and support to the Respondent Union and equally restrains
and coerces employees. We find, accordingly, that the Respondent
Employers have further violated Section 8 (a) (1) and (2) and the
Respondent Union has further violated Section 8 (b) (1) (A) 6
TBE REMEDY
We have found, inter alla, that the Respondent Employers have
contributed unlawful financial and other assistance and support to the
Respondent Union, and that the Respondents have restrained and
coerced employees in the exercise of rights guaranteed in Section 7 of
the Act, including the right to join or assist labor organizations, or to
refrain therefrom. In view of the nature and extent of such viola-
tions, as found herein, it would not effectuate the policies of the Act to
permit the Respondent Union to continue to enjoy a representative
status which has been strengthened and perpetuated by such unlawful
conduct,' or to permit it to retain the payments which have been un-
lawfully exacted from the employees; 8 nor would, it effectuate the
policies of the Act to permit the Respondent Employers to reap the
benefit of their unlawful financial assistance and support of the Re-
spondent Union at the employees' expense.0 , In order, therefore; that
the remedy may be commensurate with the unfair labor practices
found, and to restore to the employees the rights which they have been
denied, we shall, in addition to adopting the recommendations of the,
Trial Examiner that the Respondents cease and desist from engaging
in certain conduct and take certain affirmative action, order that the
Respondent Employers withdraw recognition from the Respondent
Union and that the Respondents cease giving effect to their current
agreement, or to any, modification, extension, supplement, or renewal
,thereof, unless and until the Respondent Union shall have established
its exclusive majority representative status pursuant to a Board-con-
ducted election among Respondent Employers' employees; 10 we shall
e Charles W . Carter Co , 115 NLRB 251; Hibbard Dowel Co., 113 NLRB 28.
v Julius Resnick , Inc., 86 NLRB 38. .
s Charles W . Carter, supra ; Hibbard Dowel Co, supra.
Charles TV Carter , supra, Hibbard Dowel Co, supra.
.Bowman Transportation, Inc, 120 NLRB 1147 Nothing in this order, however,
shall be construed as requiring the Respondent Employers to abandon or vary those wage,
hour, seniority , or other lawful substantive features of the relationship between the
Respondent Employers and their employees which may have , been established pursuant
to such agreement.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also order the Respondents jointly and severally to reimburse the em-
ployees who have been unlawfully required to pay a percentage of
their wages to the Respondent Union, liability therefor to begin 6
months prior to the date of the•filing and service of the initial charge
against each Respondent, and to extend to all-such monies thereafter
collected. The Respondents shall have the right to offset against any
such sum which they are required to pay to any union, member as reim-
bursement any monies which have been returned to such union member
out of the funds derived from such unlawful exaction.
ORDER
Upon the entire record in these cases, 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 Associations, Houston Maritime Association,
Inc., and Master Stevedore Association of Texas, their officers, agents,
successors, and assigns, shall: '
(a) Cease and desist from: '
(1) Encouraging membership in, and adherence to, International
Longshoremen's Association, Independent, Local No. 1273, or any
other labor organization,, by refusing to hire employees because they
have engaged in protected concerted activities; granting unlawful
preferences to union members with respect to hiring and placement, or
in any other manner discriminating against employees or prospective
employees in regard to their hire or tenure of employment or any term
or condition of employment, except to the extent permitted by Section
8 (a) (3) of the Act.
(2) Requiring applicants for work as stevedores to agree as a condi-
tion of employment to designate International Longshoremen's Asso-
ciation, Independent, Local, No. 1273, or any other labor organization,
as their bargaining agent and to pay to any such labor organization a
percentage of their wages when such payment would constitute an
illegal exaction.
(3) Performing, giving effect to, entering into, or renewing any
contract, or engaging in any practice, which delegates to International
Longshoremen's Association,. Independent, Local No. 1273, or any
other labor organization, the unilateral power to select individuals for
employment as supervisors within the meaning of the Act.
(4) Assisting or contributing support to International Longshore-
men's Association, Independent, Local No. 1273, or any other labor or-
ganization, in any other unlawful manner.
(5) Recognizing International Longshoremen's Association, Inde-
pendent, Local No. 1273, or any successor thereto, as the representative
of any of its employees for the purpose of dealing with the Respondent
Associations concerning grievances, labor disputes; wages, rates of
HOUSTON MARITIME ASSOCIATION, INC., 395'
pay, hours of employment, or other conditions of employment, unless
and until said organization shall have demonstrated its exclusive
majority representative status pursuant to a Board-conducted election
among the Respondent Employers' employees. , -
(6) Performing or giving effect to any contract with International
Longshoremen's Association, Independent, Local No. 1273, or any
modification, extension, supplement, or renewal thereof, or to any
other contract, agreement, or understanding entered into with said
organization relating to grievances, labor disputes,' wages, rates of
pay, hours of employment, or other conditions of employment ; unless
and until said organization shall, have, demonstrated its exclusive
majority representative status pursuant to a Board-conducted election
among the Respondent Employers' employees. '
(7) - In any other manner interfering with, restraining, or coercing
their employees in the exercise of the rights. guaranteed • in Section
7 of the Act, except to the extent that such rights 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.
(b) Take the following affirmative action which the Board finds
will ,effectuate the policies of the Act :
(1), Withdraw and withhold all recognition from International
Longshoremen's Association, Independent, Local No. 1273, as the _
representative of any of Respondent Associations' employee's for the,
purposes of dealing with Respondent Association concerning griev-
ances, labor disputes, wages, rates of pay,, hours of employment, or
other conditions of-employment, unless and until -said organization
shall have demonstrated its exclusive majority representative status
pursuant to a Board-conducted election. -
(2) Preserve and make available to the'Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary' to analyze the amounts- of back pay
due and other rights of employment under the terms of this Order.
(3) Post at their offices in Houston, Texas, copies of the notice at-
tached hereto marked "Appendix A." 11 Copies of said notice, to be
furnished' by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the respective Respondents' representatives,
be posted by them immediately upon their receipt and be maintained
by them for sixty (60) consecutive, days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
ll In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a , Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that these notices are not,altered, defaced, or covered by any other
material.
(4) Mail signed copies of the notice attached hereto as Appendix-
A to the said Regional, Director for posting, the Respondent Union
willing, at the hiring halls operated by the Respondent Union, in the
places where notices to employees and prospective employees are
customarily posted. Copies of the notice, to be furnished by the said
Regional Director, shall be returned forthwith to the Regional Di-
rector after they have been signed by an official representative of the
respective Respondent Associations for such posting.
2. The Respondent Union, International Longshoremen's Asso-
ciation, Independent, Local No.' 1273, its officers, agents, ^ and
representatives , shall:'
(a) Cease and desist from :
(1) Causing or attempting to cause Houston Maritime Association,
Inc., Master Stevedore Association of Texas, or any other employer,
to discriminate against employees or prospective employees by_ re-
fusing to hire them because they have engaged in protected concerted
activities, granting unlawful preferences to union members with re-
spect to hiring and placement, or in any other manner in regard to,
their hire or tenure of employment or any term or condition of em-
ployment, except to the extent permitted by Section 8. (a) (3) of
the Act.
(2) Requiring applicants for work as stevedores to -agree as a
condition of employment to designate it as their bargaining agent and
to pay to it,a percentage of their wages when such payment would
_constitute'an illegal exaction.
(3) Performing , giving effect to, entering into, or renewing any
contract, or engaging in any practice, which delegates to it the uni-
lateral . power 'to select individuals for employment , as supervisors
within the meaning of the Act.
(4) Performing or giving effect to any contract with Houston
Maritime Association, Inc., or Master Stevedore Association of Texas,
or' any modification, extension, supplement, or renewal thereof, or
to any other contract, agreement, or understanding entered into with
said Employers relating to grievances, labor disputes, wages, rates of
pay, hours,of employment, or other 'conditions of employment, unless
and until• it. shall have demonstrated its 'exclusive majority repro-
sentative status pursuant to a Board-conducted election among the
Respondent Employers' employees.
(5) In any other manner restraining or coercing employees of any
employer in the exercise of their -rights guaranteed by Section 7 of
the Act, except to the extent that such rights 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.
HOUSTON MARITIME ASSOCIATION, INC. 397
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
- (1) Post at its offices and hiring halls copies of the notice attached
hereto marked "Appendix B." 12 Copies of said notice, to be furnished
by the Regional Director for the Sixteenth Region, shall, after being
duly signed by an authorized representative, be posted by the Re-
spondent Union immediately upon receipt thereof, and be maintained
by it for sixty (60) consecutive days thereafter, inconspicuous places,
including all places where notices to members, employees, and pros-
pective employees are customarily posted. Reasonable steps shall be
taken by the Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(2) Mail signed copies of the notice attached hereto as Appendix
B to the said Regional Director for posting by the Respondent
Employers, the latter willing, in the places where notices to employees
are customarily posted. Copies of the notice, to be furnished by the
Regional Director, shall be returned forthwith to the Regional Direc-
tor after they have been signed by an official representative of the
Respondent Union for such posting.
3. The Respondents, Houston Maritime Association, Inc., and
Master Stevedore Association of Texas, their officers, agents, succes-
sors, and assigns, and International Longshoremen's Association,
Independent, Local No. 1273, its officers, agents, and representatives,
shall:
(a) Jointly and severally make whole W. J. Nemeth, Robert
Knowles, and J. A. Garza for any loss of pay they may have suffered
because of the discrimination against them, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(b) Jointly and severally, reimburse all employees for monies
illegally exacted from them in the manner and to the extent set forth
in the section hereof entitled "The Remedy."
(c) Notify J. A. Garza in writing that, upon application, he will
be employed without discrimination against him, and without prej-
udice to any-seniority or other rights and privileges.
(d) Notify the Regional Director for the Sixteenth Region in
-writing, within ten (10) days from the date of this Order, what steps
they have taken to comply herewith.
'a See footnote 11, supra.
APPENDIX A
NOTICE TO ALL LONGSHOREMEN
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 :
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT encourage membership in and adherence to Inter-
national Longshoremen's Association, Independent, Local No.
1273, or any other labor organization, by refusing to hire em-
ployees because they have engaged in protected concerted activ-
ities; granting unlawful preferences to union members with re-
spect to hiring and placement; or in any other manner by dis-
criminating against employees or prospective employees in regard
to their hire or tenure of employment or any term or-condition
of employment, except to the extent permitted by Section 8 (a)
(3) of the Act.'
WE WILL NOT require applicants for work as stevedores to agree
as a condition of employment to designate International Long-
shoremen's Association, Independent, Local No. 1273, or any
other labor organization, as their bargaining, agent or to pay to
Any such labor organization a percentage of their wages when
such payment would constitute an illegal exaction.
WE WILL NOT perform, give effect to, enter into, or renew any
contract, or engage in any practice, which delegates to Interna-
tional Longshoremen's Association, Independent, Local No. 1273,
or any other labor organization , the unilateral power to select
individuals for employment as supervisors within the meaning
of the Act.
WE WILL NOT assist or contribute support to International
Longshoremen's Association, Independent, Local No. 1273, or
any other labor organization , in, any other unlawful manner.
WE WILL NOT recognize International Longshoremen 's Asso-
ciation, Independent, Local No . 1273 , or any successor thereto,
as the representative of any of our employees for the purpose of
dealing with us concerning grievances , labor disputes, wages,
rates of pay, hours of employment , or other conditions of em-,
ployment, or perform or give effect to any contract with the said
labor organization , or any modification, extension , supplement,
or renewal thereof , or to any other contract , agreement , or under-
standing entered into with said labor organization relating to
grievances , labor disputes , wages , rates of pay, hours of employ-
ment, or other conditions of employment, unless and until said
labor organization shall have demonstrated its exclusive majority
representative status pursuant to a Board -conducted election:
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organ-
ization as a condition of employment , as authorized by Section
8 (a) (3) of the Act.
HOUSTON 'MARITIME ' ASSOCIATION, INC. _399
WE WILL notify J. A. Garza in writing that upon application
he will be employed without discrimination against him, and
will'make him and W. J. Nemeth and Robert Knowles whole
for any loss of pay they may have suffered because of the dis-
crimination against them.
WE WILL reimburse our employees for any losses suffered by
them because they were illegally required to pay monies to In-
ternational Longshoremen's Association, Independent, Local No.
1273, as a condition of employment.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of, any labor organization except
to the extent that this right may be affected by an agreement con-
forming to the applicable provisions of Section 8 (a) (3) of the Na-
tional Labor Relations Act. We will not discriminate in regard to
hire or tenure of employment, or any term or condition of 'employ
ment, against any employee because of membership in or activities on
behalf of any such labor organization.
HOUSTON MARITIME ASSOCIATION, INC.,
Employer.
Dated---------------- By--------------=----------==----------
(Representative ) ( Title)
MASTER STEVEDORE ASSOCIATION OF TEXAS,
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 LONGSHOREMEN
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 Houston Maritime
Association, Inc., Master Stevedore Association of Texas, or any
other employer, to discriminate against employees or prospective
employees by refusing to hire them because they have engaged
in protected concerted activities, or by granting unlawful prefer-
ences to union members with respect to hiring and placement, or
in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of employment, except to the ex-
tent permitted by Section 8 (a) (3) of the Act.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT require applicants for work as stevedores to
agree as a condition of employment to designate us as their bar-
gaining agent and to pay to us a percentage of their wages when
such payment would constitute an illegal exaction.
WE WILL NOT perform, give effect to, enter into, or renew any
contract, or engage in any practice, which delegates to us the
unilateral power to select individuals for employment as super-
visors within the meaning of the Act.
WE WILL NOT perform or, give effect to any contract with
Houston Maritime Association, Inc., or Master Stevedore Asso-
ciation of Texas, or any modification, extension, supplement, or
renewal thereof, or to any other contract, agreement, or under-
standing entered into, with said employers relating to grievances,
labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment, unless and until we shall have
established our exclusive majority representative status pursuant
to a Board-conducted election.
WE WILL NOT in any other manner restrain or coerce employees
of any employer in the exercise of their rights guaranteed by
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized by Sec-
tion 8 (a) (3) of the Act.
WE WILL notify J. A. Garza in writing that upon application
he will be employed without discrimination against him, and will
make him and W. J. Nemeth and Robert Knowles whole for
any loss of pay they may have suffered because of the discrimina-
tion against them.
WE WILL reimburse the employees of Houston Maritime Asso-
ciation, Inc., and Master Stevedore Association of Texas for any
losses suffered by them because they were illegally required to pay
monies to us as a condition of employment.
INTERNATIONAL LONGSHOREMEN'S ASSOCIA-
TION, INDEPENDENT , LOCAL • No.: 12,73,
:Labor. Organization.
Dated---------------- By------- -----------------------'------
(Representative ) (Title)
This notice must remain posted for 60, days, from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served ; complaints, amended complaints, an
order consolidating the above-cited cases, and notices of.hearing thereon having
been issued and served by the General Counsel of the National Labor Relations
HOUSTON MARITIME ASSOCIATION, INC. 401
Board , and answers having been filed by the above-named Respondents , a hearing
involving allegations of unfair labor practices in violation of Section 8 (a) (1), (2),
and (3 ) and Section 8 (b) (1) (A) and (2 ) of the National Labor Relations Act,
as amended , 61 Stat . 136, herein called the Act, was held in Houston , Texas, on
August 7, 8, 9, 10, and 13, 1956, before the duly designated Trial Examiner.
As to the unfair labor practices , in substance the complaints , as further amended
during the hearing , allege and the answers deny that: (1) The Respondents have
entered into an agreement according to the Union control of the hiring of long-
shoremen , ( 2) in the administration of said agreement preference has illegally been
accorded , in hiring and in the assignment of certain jobs, to members of the Re-
spondent Union ; (3) the Respondent Employers have acquiesced in a practice evolv-
ing from said agreement whereby the Respondent Union unilaterally selects all
hiring foremen , who are supervisors within the meaning of the Act; (4) the Re-
spondent Union is engaging in the practice , and the Respondent Employers are
acquiescing in such practice , whereby all longshoremen working out of the Union's
hiring hall as a condition of employment are required to designate the Union as
their bargaining representative and to pay a percentage of their wages to the Union;
(5) from August to December 1954, the Respondent Union charged nonmembers
more than it charged members for the privilege of working out of its hiring hall;
(6) the Respondent Union, from December 30, 1954, to February 4, 1955, caused
the Respondent Employers illegally to deny employment to A. M. Clay, J. D.
Williamson , W. J. Nemeth , and Robert Knowles; and from December 1, 1954, to
the date of the amended complaint , similarly to deny employment to J. A Garza;
(7) the Respondent Employers discriminatorily denied employment , in violation of
Section 8 (a) (3), to Clay, Nemeth, Knowles , and Garza , for the periods above
described ; ( 8) by such conduct Respondent Employers have assisted and supported
the Respondent Union in violation of Section 8 (a) (2) of the Act, and (9) the
Respondent Union and Respondent - Employers , by their conduct , have restrained
and coerced employees in the exercise of rights guaranteed by Section 7 of the Act.
At the hearing all parties were represented , were afforded full opportunity to be
heard , to examine and cross -examine witnesses , to introduce evidence pertinent to
the issues , to argue orally upon the record , and to file briefs and proposed findings
of fact and conclusions of law. Arguments were waived . All parties filed briefs,
which have been carefully considered.
At the conclusion of the hearing ruling was reserved upon motions to dismiss the
complaints . Disposition of such motions is made by the following findings, conclu-
sions, and recommendations.
Upon the entire record in the case , and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYERS
The following findings rest upon allegations of the complaints which are admitted
by the Respondents. _
The Respondents Houston Maritime Association, Inc., and Master Stevedore
Association of Texas ate Texas corporations, each having its office and principal
place of business in Houston, Texas., Both are engaged in the business of establish-
ing and maintaining uniformity in commercial usages with reference to the loading
and unloading of vessels of all kinds in the ports of Texas, including Houston,
disseminating business information having reference thereto, promoting the interest
and increasing the facilities of the shipping trade in the ports of Texas, and repre-
senting members of each Respondent collectively in negotiating collective-bargaining
agreements and in relations generally with various labor organizations, including
International Longshoremen's Association, Independent, Local'No. 1273, the Re-
spondent Union. Both Employers are currently operating under the terms of a
collective-bargaining agreement with the Respondent Union, said agreement having
been negotiated by the Respondent on behalf of their members.
The Strachan Shipping Company is a member of both Respondent Associations.
During the 12-month period ending October 31, 1955, a period representative of
all times material hereto, this employer member of both Associations furnished
stevedoring services to steamship companies operating vessels in interstate and foreign
commerce valued at more than $100,000.
The Respondent Employers are engaged in commerce within the meaning of the
Act. (Jonesboro Grain Drying Cooperative, 110 NLRB 481, as modified by
Whippany Motor Co., Inc., 115 NLRB 52.)
487926-59-vol. 121=27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED
International Longshoremen's Association, Independent, Local No. 1273, is a
labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The complaints allege, the answers admit, and the evidence supports the follow-
ing findings: In October 1953, and again in October 1955, the Respondents entered
into contracts providing that the owners, operators, and agents of all deep sea vessels
entering or departing from all ports in Texas subscribed for by the Respondent
Employers employ, in all longshore work, the labor necessary therefor through
hiring halls operated and administered by the Respondent Union or other locals
affiliated with the International.
The first major issue, and perhaps the most general one, raised by the complaint
is that the said contracts, as administered by the parties, have resulted in according
preference in hiring and in the assignment of "key," or more desirable, jobs to union
members. The Respondent Union flatly denies the allegation; the Respondent
Employers say that, in effect, if any such preference has been accorded, they know
nothing about it, and since all hiring has been in the hands of the Union, the
Employers cannot be held responsible if any discrimination has occurred. Thus the
major issue is well defined. Evidence bearing upon it will be set out in the next
subsection.
Out of this hiring hall arrangement arise the cases of 5 alleged discriminations
in employment, involving A. M. Clay, J. D. Williamson, W. J. Nemeth, Robert
Knowles, and J. A. Garza, during a specific ,period of about a month as to the
first 4 named, and in the case of Garza, from December 1954 to date. The com-
plaints claim that the Respondent Union caused the Respondent Employers to
engage in the illegal discrimination against all five individuals, but fail to claim,
as against the Respondent Employers, that they actually discriminated against
Williamson.'
Another issue, involving both the Union and the Employers, stems from the hir-
ing hall practice of requiring all longshoremen to designate the Union as their
bargaining representative and to pay a percentage of their wages to the Union. It is
claimed that the Employers have "acquiesced in and supported" such practice on the
part of the Union.
As to issues involving but 1 of the 2 Respondents, the complaints claim that
the Union has violated the Act by charging nonmembers more than it has mem-
bers for the privilege of working out of the hiring hall, and the Employers have
unlawfully assisted the Union by entering into the aforesaid agreement and
acquiescing in certain practices under it.
B. The contracts
As noted above, the contract between the Respondents provides that all long-
shore labor shall be employed through hiring halls operated by the Union. Neither
in the complaints nor in his brief does General Counsel claim that the "hiring
hall" provision is, alone and of itself, violative of the Act.
In his brief General Counsel does contend, however, that rule 6 of the same
agreement "is per se a violation of Section 8 (a)• (1) (2) and ( 3) and Section
8 (b) (1) (A) and (2) of the Act." The rule reads as follows:
Rule No. 6-Eligible Gang Foremen
The Master Stevedores Association of Texas shall have the right to name
men as gang foremen. The Locals to submit a, list of gang foremen who are
qualified, in the. opinion of the local, to the Master S evedores Association
of Texas, from which list the Master Stevedores Association of Texas to
name gang foremen. The Locals to submit, within fifteen (15) days rom
the date of this contract, lists containing not less than three ( 3) times the
number of men required for gang foremen.
The Master Stevedores Association of Texas shall have the right to delete
names from the lists submitted by the Locals. and substitute other men from
lists submitted by the Locals. After the Master Stevedores Association of
Texas have made deletions from the original lists as submitted, the locals
1 As noted in a subsection below, the facts relating to Williamson are identical with
those involving Nemeth, Clay, and Knowles.
HOUSTON MARITIME ASSOCIATION; INC. 403
will have the right to call a meeting with the Stevedores to discuss the reason
for the individual deletions, nevertheless the right of deletions remains with
the Stevedores. If the Locals fail to carry out the procedure as outlined
above, to furnish the lists within fifteen (15) days, then the Stevedores shall
have the right themselves to name as gang foremen any man from the gang.
This right of selection by the Stevedores shall continue until such time as the
required number of eligible gang foremen are approved.
There shall be only one gang foreman to each working ship. Gang fore-
men to have supervision of placement of all men in the gang subject to super-
vision and approval of the walking foreman.
Gang foremen to receive ten (10) cents per hour over and above the other
men in the gang.
In urging his contention, General Counsel argues that this rule effectively dele-
gated to the Union full control over the selection of longshoremen for employment,
and therefore is violative of the Act. Even if warranted by the language of the
rule, such a conclusion, in the opinion of the Trial Examiner, would require
broader interpretation of the Act than the Board has yet made. Indeed, in a
recent decision (Imparato Stevedoring Corporation, 116 NLRB 667, footn-ite 6)
the Board declined to adopt a similar conclusion reached by the Trial Examiner
in that case and said: . it is unnecessary to decide herein whether all dele-
gations of employment functions by an emaloyer to a labor organization are v'ola-
tive of Section 8 (a) (3)." In the cited case the Board found violation of the
Act, because "the labor organization . . . exercised its delegated function dis-
criminatorily." 2
The Trial Examiner, furthermore, is unable to perceive, within the limitations
of the language of rule 6 itself, any clear and conclusive warrant for a finding
that it delegated to the Union all "employment funct ons " The words say plainly
that the Association, or employer, has the right to select gang foremen. and that
while gang foremen have supervision "of placement of all men in the gang,"
such supervision is subject to the approval of the "walking foreman"-a repre-
sentative of the Association.
For the foregoing reasons the Trial Examiner declines to find, as urged by
General Counsel, that rule 6 is "per se" in violation of the Act.
C. Administration of and practices under the contract
There is small dispute in the record that the practice, under the contract for
the past several years, has resulted in almost complete control by the Union of
all hiring of both gang foremen and longshoremen, and that such control, in turn,
has resulted in discriminatory hiring which is violative of the Act.
First, as to the actual administration of rule 6. Despite the rrovis&on that the
Union must submit lists of gang foremen, no such list has been forthcoming
since 1951', and new contracts with similar prov;sionc were signe'i in 1953 and
1955. In short, there is no evidence that the Respondent Association has ever
exercised the right reserved to it by language of the rule to "name men as gang
foremen." On the contrary, all credible evidence shows that the Employers
have, in effect, and over a considerable period of time , permitted the Union to
perform the selection.
Thus, in practice, the Respondent Employers have delegated to the Union the
authority and function of selecting their own supervisory, hiring agents. For,
as the evidence establishes, it is and has been the practice for the gang foremen
to hire-with no actual "supervision and approval of the walking foremen"-
all longshoremen.3
The procedure of hiring, in summary, is as follows- (1) When Stevedore members
of the Respondent Employers need longshoremen, they call the business agent of the
Respondent Local and say, for example, "I've got the Golden Gate in and she is at
City Dock No. 3, and she has four hatches to work, I need fifteen men to a hatch";
2 In support of his contention General Counsel cites Pacific lntermovtntain Express Com-
pany, 107 NLRB 837 The specific issue there involved was seniority, not "all delega-
tions of employment functions "
3In his able brief, counsel for the Employers comes apparently to the same conclusion
when he states' "There is absolutely no evidence that the respondents have had any
voice in the choice of men, and no evidence that they at any time have known the fore-
men, who actually picked up his own gang on his own initiative, and there is no evidence
that they even knew the names of foremen until they reported to the stevedore's job on
the ship 11
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(the quotations are from a question put by counsel for the Employers to W. C. Wells,
former head of the Local, which the latter answered in the affirmative); (2) the
business agent selects and posts the names of the hatch or gang foremen; and (3)
the gang foremen select from among men gathered at the union hiring hall the
number of longshoremen called for. Until they report to the hatch, the employing
stevedore company does not know the identity either of the gang foreman or the
longshoremen who are to perform the work.
In short, in practice under the contracts, the Union has been and is the hiring
agent of the Respondent Employers? It is a fundamental of agency law, the Trial
Examiner believes, that a principal must share responsibility for his agent's acts-
if those acts are within the reasonable scope of authority. Applied here, that funda-
mental supports a preliminary conclusion that, by permitting the Union as their agent
to hire all their longshoremen, the Respondent Associations must be held account-
able for illegal conduct, if any, engaged in by the Union while performing hiring
functions. And in the opinion of the Trial Examiner such accountability cannot
be and is not avoided, as counsel for the Associations urges in his brief, by the pres-
ence of other clauses in the same contract which provide that the Union shall "main-
tain and operate" its hiring hall "open to any person seeking employment as 'long-
shoremen irrespective of union affiliation " 5 That the Employers had some doubt
as to the deterrent nature of such provisions is indicated by the inclusion of still
another, which requires the Union to indemnify the Employers against any money
judgment obtained for following practices unlawful under the Act.
D. Discrimination in hiring
1. Named individuals
As to specific individuals, the complaints name A. M. Clay, J. D. Williamson,
W. J. Nemeth, Robert Knowles, and J. A. Garza as having been illegally denied
employment as longshoremen.
The record contains so little dispute as to the facts relating to treatment of these
individuals that they will be quickly summarized. None of the five were members
of the Respondent Union. For many years the Union's membership rolls have been
limited to about 400, although many hundreds of "outsiders"-nonmembers-were
hired through the Union's hall during that period.
It is undisputed that in the latter part of December 1954, all of the above-named
five, except Garza, were called before a board of union officials, tried for matters
including attempts to organize the "outsiders" into a competing labor organization,
and were then, by orders of the Union, denied employment for a period of about
30 days. All gang foremen, who hired the men, were and are members of the
Respondent Union. Gang foremen served on the union trial board. The action
on the part of the Union was clearly violative of the Act, in that it deprived these
individuals of their right to work-or at least to be selected for work on a nondis-
criminatory basis-and restrained and coerced them in the exercise of rights guar-
anteed by Section 7 of the Act. In its capacity as hiring, agent for the Respondent
Employers the Union caused, in effect, the Respondent Employers to violate Section
8 (a) (3) and (1) of the Act, and itself violated Section 8 (b) (2) and (1) (A) of
the Acts
As alleged in the CB amended complaint. the period of the above-described dis-
criminatory denial of employment for Clay, Williamson, Nemeth, and Knowles was
4 to his comprehensive brief Geneial Counsel also urgest that "In fact the Union is the
Employer in tie agency sense and within the meaning of Section 2 (2) of the Act"
The Trial Examiner considers it unnecessary to becloud simple issues by use of terms
and overlapping definitions, particularly since the complaints allege that the Union-'
as a labor organization and not as an employer-has engaged in unfair labor practices
There- are no allegations that the Respondent Union has violated any provision of Sec-
tion 8 (a) of the Act
8 In Pacific Inter mountain Exps e,+s Company, 107 NLRB 837 at 846, the Board said :
"The Board has often held that when an employer delegated to a union the authority to
control conditions of employment, it becomes iesponsible for the discriminatory manner
in which the union exercises such authority," And cites Sub Grade Engineering Cona-
pany , 93 NLRB 406, and Air Products, Incorporated, 91 NLRB 1381
O As a witness, W. C. Wells, then head of the Union, in effect admitted his recognition
of the illegality of the penalties imposed upon these individuals when lie said : "During
that time we thought we were in our jurisdictional rights . . . to give them thirty days
but afterwards we found through our attorney and through the National Labor Relations
11Board that we had done something against the Taft-Hartley (Act)... .
HOUSTON MARITIME ASSOCIATION, INC. 405
from December 30, 1954, to February 4, 1955. (As noted in section III, A, above,
the amended complaint in the CA cases fails to list Williamson as having been
specifically discriminated against by the Employers, although the amended complaint
in the CB cases includes this individual as one whom the Union has illegally caused
the Employers to discriminate against . The Trial Examiner does not consider the
possible defect to be of a serious nature. The case of Williamson, although he was
not a witness, was fully tried at the hearing. It was admitted by the head of the
Union that Williamson was included among those penalized for conduct against the
union interest . Counsel for the Respondent Employers has made no point of the
omission and, as his brief points out, the contract between the parties has an in-
demnification clause.)
The case of Garza, while of a similar pattern, has other details than those involv-
ing the four above-named individuals. The complaint contends that Garza has been
discriminatorily denied employment since December 21, 1954. According to Garza's
testimony, corroborated by that of another "outsider," Ramon Flores , early during
the morning of that date he was asked at the hiring hall if he wanted work by Gang
Foreman M. C. Brown. When he replied that he did, he was told by Brown to sign
"the book." After he had signed, the foreman was called into the Union office.
Upon leaving the office, the foreman came to him and said, "Garza, I'm sorry about
this; I got orders to scratch you off this book. I didn't know you have a blackball
here or I don't know nothing, I got orders to scratch you off the book. That' s all."
Foreman Brown flatly denied Garza's account. Having observed the witnesses and
in consideration of other factors, the Trial Examiner is not persuaded that Garza
was actually offered and then denied employment by Brown. Brown, at the time
of the hearing, was 74 years old, and has been a longshoreman on the Houston
waterfront since 1916. As a witness he was straightforward, wasting no words. He
candidly admitted that he hired his regular, button men first-a practice which, as
noted below, is at issue in this case. Not only did he deny the occurrence as de-
scribed by Garza, but he also declared, without contradiction, that he had never had
Garza in his gang because he was "lazy"-a characterization which Garza,admitted
had often been made of him. Since Garza had worked out of the union hiring hall
since 1942, and assuming the undisputed fact that he had never before been hired
by Brown, the Trial Examiner finds in the former's testimony no convincing reason
why, after 14 years of not calling Garza, the foreman should suddenly do so on
December 21, 1954. In short, the Trial Examiner is not convinced that credible
evidence sustains the allegation of the complaint that Garza was denied employment
on that date.
It is further undisputed, however, that an incident occurred on January 19, 1955,
which amply supports a finding that Garza was discriminated against thereafter.
He was called in before a group of union officials, including Business Agent Fivecoats,
accused of "trying to break the Local" and advised to get work through another local.
Wells, then head of the Local, testified that he had heard Garza was "trying to start
this second faction through the Latin-Americans." It does not appear that, after
coming before the union officials, he was formally notified of any "suspension," as
the other four had been. He simply was not hired, although he continued to report
at the hiring hall for work. He repeatedly approached Wells, protesting that he was
not being hired, but Wells only said he would see "what he could do about it." Find-
ing it a futile effort, Garza finally gave up reporting at the hiring hall.
The Trial Examiner concludes and finds that the Respondent Union, as hiring
agent for the Respondent Employers, has discriminatorily refused to hire Garza
since January 19, 1955; that the Respondent Union has, in effect, caused the
Respondent Employers to discriminate against Garza in violation of Section 8 (a) (3)
and thereby has violated Section 8 (b) (1) (A) and (2) of the Act.7 It is likewise
found that the Respondent Employers have discriminated in the employment of
Garza within the meaning of Section 8 (a) (3) and (1) of the Act.
2. In general
As to the question of general discrimination in the hiring of longshoremen, the
credible testimony of the head of the Union as well as that of several gang foremen
amply supports the allegations of the complaints that union members are' given
preference, not only in the order of hiring, but also in the nature of jobs assigned.
7 Although as evidence in the record shows, Garza has received a certain sum from the
Union covering a period up to September 29, 1955, there is no evidence in the record
that the Union has taken any specific action, up to the time of the hearing, as it has
done in the cases of the other four individuals, to notify the hiring foreman that Garza
is to be hired.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus Foremen Brown , McGee, and Kovacevich , witnesses for the Respondent Union,
all admitted that it was their practice to pick up their "regular button" ( or union
member ) men first. Wells, head of the Union in 1954 and 1955, answered in the
affirmative when asked'whether or not "in most cases button men are hired first."
Wells further testified that the 48 gang foremen followed the practice of placing these
"regular" men on "key" jobs, such as winches , machinery , and specialized jobs
on steel.
The Trial Examiner concludes and finds that the Respondent Union , as hiring agent
for the Respondent Employers , has engaged in and is engaging in discriminatory
hiring practices, and that the Respondent Union has, in effect , caused the Respondent
Employers to discriminate generally in violation of Section 8 (a) (3) and thereby
itself has violated Section 8 (b) (1) (A ) and (2 ) of the Act. It is likewise found
that Respondent Employers have discriminated generally, as described above, in the
hiring and assignment of employees within the meaning of Section 8 (a) (3) and (1)
of the Act.
E. The requirement that longshoremen designate ILA as their bargaining agent
It is undisputed that during the period material herein outsiders signed cards
having the following text:
This is to certify that I , ------------------------------------
S. S. -------------------------------------------- agree to work as a
Longshoreman and do hereby authorize and designate the I . L. A. Local Union
No. 1273 as the bargaining agent for me, and I further agree to be governed by
its constitution and by-laws and other regulations . I hereby agree to pay
I. L. A. Local No. 1273 5% of my wages as compensation for services rendered
to me by such Local Union which I hereby agree is a reasonable charge. I
hereby assign and transfer to Local Union No. 1273 said percentage of my
said wages.
(Signed ) ---------------------------------------------
Witness --------------------------------------------
It is General Counsel's contention that signing the card "is a condition of employ-
ment imposed by the Union ," and that by requiring designation of itself as the bar-
gaining agent the Union deprives nonmembers of their free choice of such an agent-
a right guaranteed by the Act.
As to the preliminary question , whether or not such designation is actually
"required" as a "condition of employment." Under the circumstances of this case,
the Trial Examiner agrees with General Counsel 's claim , made in his brief, that it is
unnecessary to show "specific instances of coercion in signing the cards ." There is
no showing in the record, for example, that any "outsider" was flatly told that unless
he signed the card he would not be hired. The evidence does establish , however-
and indeed the Respondent Union made no effort to disprove-the fact that it is and
for some time has been the practice to obtain signatures , periodically , to such cards.
The circumstances persuading the Trial Examiner that signatures are required, as a
condition of employment , are: (1 ) The language in the text, which links the agree-
ment "to work as a Longshoreman" with the agreement to designate the ILA as the
bargaining agent; and ( 2) the undisputed fact that the Respondent Union disciplined,
by withdrawing employment privileges , the employees named heretofore because they
engaged in an effort to seek another bargaining agent. -
As concluded above, the Respondent Employers must be held accountable, equally
with the Respondent Union, for illegal discriminatory practices in the hiring of their
employees . It follows, then, and the Trial Examiner concludes and finds, that, by
depriving employees of their freedom of choice in the selection of a bargaining agent,
as described above, the Respondent Union has violated Section 8 (b) (1) (A) of the
Act, and the Respondent Employers have violated Section 8 (a) (1) and (2) of the
Act. (The finding of a violation of Section 8 (a) (2) of the Act rests upon the
reasonable conclusion that, by being a party to a practice illegally requiring designa-
tion of a bargaining agent , the Employers render appreciable support and assistance
to the Respondent Union.)
F. Support and assistance
Throughout the year 1955 , a period material herein , the following individuals
served simultaneously as gang or hiring foremen for the Respondent Employers and
as officials of the Respondent Union : W. A. Swan , first vice president; C. M.
Warwick , second vice president ; B. D. Pickford , executive board; E. C. Gibson,
executive board ; Earl Bennet , executive board . Furthermore , at the time of the
hearing and for the past 17 years H. D. Gookin has been financial secretary and
HOUSTON MARITIME ASSOCIATION, INC. 407
treasurer for Local 1273 while at the same time serving as walking foreman-
superior to gang foremen-for Strachan Shipping Company, a member of the Re-
spondent Employers.
For an employer to permit its supervisors to hold responsible office in a labor
organization representing its employees has long been held by the Board and the
courts to constitute substantial assistance and support in violation of Section 8 (a)
(2) of the Act. It is likewise held here.
In summary, the Trial Examiner concludes and finds that the following factors,
in addition to that described immediately above, support allegations of the com-
plaints involving assistance and support to the Union in violation of Section 8 (a)
(2) of the Act: (1) Permitting practice under the contract, as described heretofore,
of hiring preferences for union members; (2) acquiescing in the unilateral selection
by the Union of gang foremen who are supervisors within the meaning of the Act;
(3) acquiescing in the discriminatory denial of employment of the five above-named
individuals; and (4) being a party to a practice illegally requiring designation of a
bargaining agent, as described in section III, E, above.
G. The requirement to pay percentages to the Respondent Union
It is likewise undisputed that during the material period it has been the practice for
the Respondent Union to require all longshoremen, whether members or non-
members, to turn over to it a certain percentage of their wages. Although the card
quoted above states that such charges are to be 5 percent of the wages, more recently
the percentage has been reduced to 3 percent. Since the Respondent Employers
themselves prepare the paychecks-for each employee one for the wages earned less
the percentage and another for the percentage itself-it is clear that they are fully
aware of, and acquiesce in, the practice.
It is also undisputed that over a considerable period of time the Union annually
has returned, to its members but not to nonmembers, certain amounts of money.
The Union claims that such payments to its members are mere "loans," but admits
that no member ever applied for such and that no loan contracts are required. The
Trial Examiner is not persuaded that these returns are, in fact, loans which the
members are under any obligation to return, at any time., In effect, it appears
-reasonable to find that such returns are "rebates" on, the percentage which union
members have paid into the Union. Since nonmembers receive no such "rebate,"
it might reasonably follow that there is an actual "disparity of treatment," illegal
in the sense that its application encourages membership in the Union, since it
benefits those who are members.
On the basis of this record, however, the Trial Examiner is unable to find
actual, financial disparity. He does not believe that General Counsel, by the intro-
duction of evidence available to him, fully sustained the burden of proving such
disparity or its extent. For example, there is no evidence in the record as to the
actual cost of operating the hiring hall, over any given period. It may well be
that members-, who also must pay a substantial initiation fee while nonmembers do
not-are required to pay dues and assessments which would appreciably lessen, if
not completely obliterate, the apparent disparity in financial hiring obligations be-
tween members and "outsiders."
In short, the Trial Examiner believes that there is insufficient evidence in the
record to sustain the General Counsel's complaint on this point.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section III, above, occurring in con-
nection with the operations of the Respondent Employers, described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
the Trial Examiner will recommend that they cease and desist therefrom and take
affirmative action necessary to effectuate the policies of the Act.
It has been found that the Respondent Employers have discriminated against
employees Clay, Williamson Nemeth, Knowles, and Garza in violation of Section
8 (a) (3) and (1) of the Act, and that the Respondent Union caused the Respondent
Employers to do so in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the
Act. It will therefore be recommended that the Respondents, jointly and severally,
make whole these employees (with the exception of Clay and Williamson) for any
loss of pay suffered as a result of the discrimination against them. At the hearing
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and in his brief General Counsel made it clear that, in view of certain payments
made to Clay and Williamson, during the pendency of an informal settlement agree-
ment preceding the hearing, no back pay was being sought for these two individuals.
None, therefore, will be recommended for them. Furthermore, as the record shows,
Garza has been made whole for a period preceding and up to September 29, 1955,
when the settlement agreement referred to was executed. General Counsel seeks,
and it will be recommended, that back pay for Garza shall be computed from that
date until such date as the Respondents have duly offered Garza employment. In
accordance with Board policy set forth in Pinkerton's National Detective Agency,
Inc., 90 NLRB 205, it will be recommended that the liability of the Respondents for
back pay, as to Garza, shall terminate 5 days after notifying him, in writing, that
upon duly reporting for work at the hiring hall he will be hired on a nondis-
criminatory basis. Back pay shall be computed in accordance with the Board's
usual remedial policies (Chase National Bank, 65 NLRB 827; Crossett Lumber Co.,
8 NLRB 440; F. W. Woolworth, 90 NLRB 289).
It has also been found that the Respondent Employers, by permitting and
acquiescing in certain hiring practices and hiring policies have rendered illegal
support and assistance to the Respondent Union. General Counsel urges that the
current agreement between the Respondent parties be set aside and recognition of
the Union withdrawn. Since the Trial Examiner has been unable to find, on the
basis of evidence in the record, that any provision of the contract is, per se, violative
of the Act as so far interpreted by the Board, it will not be recommended that the
contract be nullified or recognition withdrawn. It will be recommended, however,
that the Respondent Employers cease and desist from assisting and supporting the
Union in any manner violative of Section 8 (a) (2) of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent Union is a labor organization within the meaning of Section
2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of em-
ployees, including A. M. Clay, J. D. Williamson, W. J. Nemeth, Robert Knowles,
and J. A. Garza, the Respondent Employers have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By contributing support and assistance to the Respondent Union, the Re-
spondent Employers have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (2) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent Employers have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
5. By causing and attempting to cause the Respondent Employers to discriminate
against employees within the meaning of Section 8 (a) (3) of the Act, the Re-
spondent Union has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b) (2) of the Act.
6. By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act, the Respondent Union has engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
7. The unfair labor practices found herein are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
The National Cash Register Company and Dayton Electrotypers'
Union No. 114 , International Stereotypers ' and Electrotypers'
Union of North America, AFL-CIO, Petitioner. Case No. 9-RC-
3337. August 8, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Arthur P. West,
121 NLRB No. 58.