Houston Maritime Association, Inc.Download PDFNational Labor Relations Board - Board DecisionsApr 20, 1962136 N.L.R.B. 1222 (N.L.R.B. 1962) Copy Citation 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, and W. J . Nemeth International Longshoremen 's Association , Independent, Local No. 1273 and A. M. Clay, J. A. Garza, J. D. Williamson, and W. J. Nemeth. Cases Nos. 39-CA-480, 39-CA-484, 39-CA-525, 39-CB-103, 39-CB-104, 39-CB-105, and 39-CB-123. April 20, 1962 SUPPLEMENTAL DECISION AND ORDER On August 8, 1958, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding,' finding, in ad- dition to other unfair labor practices, that the Respondent Employers and the Respondent Union violated the Act because of the existence of certain hiring arrangements which failed to conform to the stand- ards set forth by the Board in Mountain Pacific Chapter of the As- sociated General Contractors, Inc., et al., 119 NLRB 883. Thereafter, the Board petitioned the U.S. Court of Appeals for the Fifth Circuit for enforcement of its Order. On May 19, 1961, the Board filed with the court a motion suggesting that, on April 17, 1961, the Supreme Court had handed down a series of opinions regarding the validity under the Act of certain hiring arrangements and the propriety of Board reimbursement orders, and requesting leave to withdraw its petition for enforcement to permit the Board to con- sider the effect, if any, of the above-mentioned Supreme Court de- cisions upon the propriety of the Board's findings and order herein. On June 13, 1961, the court granted the motion for leave to withdraw the petition for enforcement of the Board's Order, without prejudice. Upon reconsideration, we hereby adopt the Intermediate Report in this proceeding insofar as it is not inconsistent with this Supple- mental Decision and Order. 1. In its previous Decision, the Board found that the Employers and the Union involved here, respectively, violated Section 8(a) (1), (2), and (3) and Section 8 (b) (1) (A) and (2) of the Act by entering into and maintaining a contract that delegated to the union unilateral control over selection of gang foremen who, in turn, are granted effec- tive authority by the contract to hire longshoremen. The Board reasoned that this arrangement virtually divested the employers of their hiring functions and that rule 6 of the contract, which set forth the hiring arrangement , was discriminatory on its face because the contract did not explicitly provide Mountain Pacific safeguards deemed essential by the Board to legality of the exclusive hiring ar- 'Houston Maritime Association , Inc, et al, 121 NLRB 389 136 NLRB No. 99. HOUSTON MARITIME ASSOCIATION, INC., ETC. 1223 rangement. However, on April 17, 1961, in Local 357, International Brotherhood of Teamsters, etc. (Los Angeles-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667, the Supreme Court held that an exclusive hiring contract which specifically prohibited discrimination in hiring on the basis of union membership was not illegal per se by reason of the absence of Mountain Pacific safeguards in the contract. In the instant case, the contract expressly obligated the union to keep the hiring hall "open to any person seeking employment as longshoremen irrespective of union affiliation . . . ." Accordingly, in conformity with the Supreme Court's decision in Local 357, Teamsters, supra, and, as the contract is not invalid on any basis apart from the absence of Mountain Pacific safeguards,2 we shall dismiss the complaint as amended insofar as it alleged that, by entering into and maintaining an agreement containing the aforementioned rule 6, the Respondent Employers violated Section 8(a) (1), (2), and (3), and the Respond- ent Union violated Section 8(b) (1) (A) and (2). In view of the foregoing, and the decision of the Supreme Court in N.L.R.B. v. News Syndicate Company, Inc., et al.,3 we shall also dismiss the allegation that the Respondent Employers violated Section 8 (a) (2) of the Act by acquiescing in the unilateral selection by the Union of gang fore- men who are supervisors under the Act. 2. We find, for the reasons indicated in the Intermedate Report and in the Board's previous Decision, (a) that the Employers vio- lated Section 8(a) (1), (2), and (3) by engaging in unlawful dis- criminatory practices with respect to referral and employment of longshoremen in that the gang foremen picked unionmen first for jobs and gave them the better jobs, and that the Union violated Section 8(b) (1) (A) and 8(b) (2) by causing the Employers to en- gage in such practices; and (b) that the Employers unlawfully dis- criminated against five nonunion individuals, Clay, Knowles, Nemeth, Williamson, and Garza, in violation of Section 8(a) (1), (2), and (3) in that the Employers, at the Union's request, denied employment to Garza because he engaged in rival union activity and suspended Clay, Williamson, Nemeth, and Knowles, upon union request, because they engaged in rival union acivity, and that the Union violated Section 8(b) (2) and 8(b) (1) (A) by causing such discrimination. 3. The complaint, as amended, alleged that the Respondent Union engaged in, and the Respondent Employers acquiesced in, a 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. The record discloses that, at the time of hiring by the gang foreman at the union hiring hall, an applicant for work as a 2 Southern Stevedoring and Contracting Company, 135 NLRB 544 °365US 695 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD longshoreman signed a card in which he designated the Union as his bargaining representative, agreed to be governed by the Union's laws and regulations, and agreed to pay and assigned 5 percent of his wages 4 to the Union as compensation for "services rendered" by it. The language of the card links the agreement "to work as a long- shoreman" with the agreement to designate the Union as the bargain- ing agent and to be bound by the Union's laws and regulations; and, as we found above, the Union disciplined, by withdrawing employ- ment privileges, the five individuals mentioned above, because they engaged in an effort to seek another bargaining agent. Under the cir- cumstances, we find that the Respondents required all applicants for employment as longshoremen to sign the card as a condition of em- ployment. We further find that, by thus requiring individual desig- nations of the Union as bargaining agent, and by requiring all em- ployees, even nonmembers, to agree to be bound by union laws and regulations, the Respondents deprived the employees of their free choice of bargaining representatives and interfered with their right to refrain from union activities, as guaranteed by Section 7 of the Act. All employees, union and nonunion, were required, with the Em- ployers' knowledge, to turn over a percentage of their pay (at first 5 percent, but later reduced to 3 percent) as charges for the Union's referral services. Unspecified amounts of money were returned to union members, but not nonunion employees, as rebates. However, union members paid other sums to the Union in the form of initiation fees and dues. The Trial Examiner concluded that there was insuffi- cient evidence in the record to warrant a finding of actual disparity in the amounts paid by the two groups of employees. Accordingly, he recommended dismissal of this allegation of the complaint. Chair- man McCulloch would adopt this finding of the Trial Examiner for the reasons stated in the Intermediate Report. In light of the illegal discriminatory practices found above, Members Rodgers and Leedom find that the requirement that all employees pay a percentage of their wages as a condition of employment was a discriminatory exaction which tended to encourage the nonmembers to join the Union and members to remain members , and hence was unlawful. Members Fanning and Brown believe that a distinction exists here in the treatment of union and nonunion job applicants. It is one thing to charge job applicants a reasonable fee for referral services in the operation of an exclusive hiring hall arrangement. It is quite another thing, as Respondents did here, to require nonunion appli- cants to pay a service or referral fee for the privilege of taking their place at the bottom of the referral list because they lacked union membership. Thus to favor union applicants with resulting prejudice 4 Later, this rate was reduced to 3 percent HOUSTON MARITIME ASSOCIATION, INC., ETC. 1225 to nonunion applicants is plainly discriminatory,5 and Members Fan- ning and Brown join Members Leedom and Rodgers in holding that Respondents respectively violated the Act by exacting a service fee from nonunion applicants as a condition of employment and then treating them as second-rate citizens for referral purposes. Respond- ent Employers thereby violated Section 8(a) (1), (2), and (3) of the Act and Respondent Union violated Section 8(b) (1) (A) and (2). 4. We also find, for the reasons indicated in the Board's previous Decision, that the Respondent Employers further supported the Re- spondent Union in violation of Section 8(a) (2) of the Act by permit- ting supervisors to hold responsible office in a labor organization rep- resenting the Employer's employees, as more fully set forth in the Intermediate Report.' THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, we shall direct them to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, as set forth in the section of the Intermediate Report en- titled "The Remedy." We have found, in addition to the unfair labor practices found by the Trial Examiner, that the Respondent engaged in unlawful conduct by requiring nonunion employees, as a condition of employment, to pay the Union a percentage of their wages. Members Fanning and Brown would award reimbursement to such nonmember employees. While agreeing that reimbursement should be made to nonmember employees, Members Rodgers and Leedom, finding that the violation involved union as well as nonunion employees, would also reimburse union member employees for percentages paid to the extent that they have not already been reimbursed by rebates. Chairman McCulloch, in view of his position stated above, would not direct repayment of the percentages to either members or nonmembers. Based on the majority vote, the Board shall therefore order that the Respondent, jointly and severally, reimburse all nonmember employees for all percentages ex- acted, beginning 6 months prior to the filing of the charge herein. 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 : A. The Respondent Associations, Houston Maritime Association, Inc., and Master Stevedore Association of Texas, their officers, agents, representatives, successors, and assigns, shall: a See Local 357, Teamsters v. N L B B., supra. 6 Chairman McCulloch and Member Brown find it unnecessary to reach this issue, in view of the other Section 8(a)(2) violations found above 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Encouraging membership in, and adherence to, International Longshoremen's Association, Local No. 1273, or any other labor organization, by refusing to hire employees because they have engaged in protected concerted activities, by 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 condi- tion of employment. (b) Requiring applicants for employment as stevedores to sign a card, or otherwise to agree, as a condition of employment, to designate International Longshoremen's Association, Independent, Local No. 1273, or any other labor organization, as their bargaining agent and to be governed by the constitution and bylaws and other regulations of such labor organization and to pay to any such labor organization a percentage of their wages when such payment would constitute an illegal exaction. (c) Assisting or contributing support to International Longshore- men's Association, Independent, Local No. 1273, or any other labor organization, in any unlawful manner. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Preserve and, upon request, make available to the Board or its agents, 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 backpay and the rights of employment under the terms of this Order. (b) Post at their offices in Houston, Texas, copies of the notice at- tached hereto marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by the respective Respondents' rep- resentatives, be posted by them immediately upon receipt and be main- tained by them for 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 that these notices are not altered, defaced, or covered by any other material. (c) Mail signed copies of the notice attached hereto marked "Ap- pendix A" to the said Regional Director for posting at the hiring halls 7 In the event that this Order is enforced by a decree of a United States Court of Appeals, 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." HOUSTON MARITIME ASSOCIATION, INC., ETC. 1227 operated by the Respondent Union, in the places where notices to em- ployees 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 Director after they have been signed by an official representative of the respective Respondent As- sociations for such posting. B. The Respondent Union, International Longshoremen's Associa- tion, Independent, Local No. 1273, its officers, agents, and representa- tives, shall: 1. Cease and desist from : (a) Causing or attempting to cause Houston Maritime Associa- tion, Inc., Master Stevedore Association of Texas, or any other em- ployer, to discriminate against employees or prospective employees by refusing to hire them because they have engaged in protected con- certed activities, by granting unlawful preferences to union members with respect to hiring and placement, or in any other manner dis- criminating in regard to their hire or tenure of employment or any term or condition of employment. (b) Requiring applicants for work as stevedores to agree, as a con- dition of employment, to designate it, or any other labor organization, as their bargaining agent, and to be governed by its constitution and bylaws and regulations, and to pay to it a percentage of their wages when such payment would constitute an illegal exaction. (c) In any other manner restraining or coercing employees of the employers in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its offices and hiring halls copies of the notice attached hereto marked "Appendix B." 8 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by an authorized representative, be posted by the Respondent Union immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members, employees, and pro- spective 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. (b) Mail signed copies of the notice attached hereto as Appendix B to the said Regional Director for posting by the Respondent Em- ployers, in 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 Director after they have been 8 See footnote 7, supra 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed by an official representative of the Respondent Union for such posting. C. The Respondents, Houston Maritime Association, Inc., and Master Stevedore Association of Texas, their officers, agents, repre- sentatives, successors, and assigns, and International Longshoremen's Association, Independent, Local No. 1273, its officers , agents, repre- sentatives, successors, and assigns, shall : 1. 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." 2. Jointly and severally reimburse all employees for moneys il- legally exacted from them in the manner and to the extent set forth above .9 3. Notify J. A. Garza, in writing, that, upon application, he will be employed without discrimination against him, and without prejudice to any seniority or other rights and privileges. 4. Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. 9 As indicated above, Chairman McCulloch does not subscribe to this provision 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 : WE wn.L NOT encourage membership in or adherence to Inter- national Longshoremen's Association, Independent, Local No. 1273, or any other labor organization, by refusing to hire employ- ees 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. WE WILL NOT require applicants for work as stevedores to sign a card or otherwise to agree, as a condition of employment, to designate International Longshoremen's Association, Independ- ent, Local No. 1273, or any other labor organization, as their bar- gaining agent and to be governed by the constitution and bylaws and other regulations of any such labor organization, and to pay to such labor organization a percentage of their wages when such payment would constitute an illegal exaction. HOUSTON MARITIME ASSOCIATION, INC., ETC. 1229 WE WILL NOT assist or contribute support to International Longshoremen's Association, Independent, Local No. 1273, or any other labor organization, in any unlawful manner. 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. WE WILL notify J. A. Garza in writing that, upon application, he will be employed without discrimination against him, and will make him, W. J. Nemeth, and Robert Knowles whole for any loss of pay they may have suffered because of the discrimination against them. WE WILL reimburse our employees who were nonunion mem- bers when hired for any losses suffered by them because they were illegally required to pay monies to International Longshore- men'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. We will not discriminate in regard to hire or tenure of employment, or any term or condition of employment, 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. Employees may communicate directly with the Board's Regional Office, 650 M & M Building, 1 Main Street, Houston, Texas, Telephone Number Capitol 2-7201, Extension 041, if they have any question con- cerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL LONGSHOREMEN Pursuant to u 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 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employer, to discriminate against employees or prospective employees by refusing to hire them because they have engaged in protected concerted activities, by granting unlawful preference to union members with respect to hiring and placement, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT require applicants for work as stevedores to agree, as a condition of employment, to designate us as their bargaining agent and to be governed by our constitution, bylaws, and other regulations, and to pay to us a percentage of their wages when such payment would constitute an illegal exaction. 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 discrimination against them. WE WILL reimburse the employees of Houston Maritime Asso- ciation, Inc., and Master Stevedore Association of Texas who were not union members when hired for any losses suffered by them because they were illegally required to pay moneys to us as a condition of employment. INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, INDEPENDENT, LOCAL No. 1273, 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. Employees may communicate directly with the Board's Regional. Office, 650 M & M Building,1 Main Street, Houston, Texas, Telephone Number Capitol 2-7201, Extension 041, if they have any questions concerning this notice or compliance with its provisions. Lundy Manufacturing Corporation and International Union of Electrical, Radio and Machine Workers, AF L-CIO and Richard Schreiber and Erich Mueller and Amalgamated Local Union 355, Party to the Contract . Cases Nos. 2-CA-6083, 2-CA-7330, 2-CA-7330-3, 2-CA-6403, and 2-CA-7330-9. April 20, 1962 SUPPLEMENTAL DECISION AND AMENDED ORDER On December 29, 1959, the Board issued its Decision and Order in Cases Nos. 2-CA-6083 and 2-CA-6403, finding that the Respondent 136 NLRB No. 128. 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