Pacific American Shipowners Association

National Labor Relations Board - Board Decisions

Mar 12, 1952

98 N.L.R.B. 582 (N.L.R.B. 1952)

582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION, PACIFIC MARITIME
ASSOCIATION, ALASKA STEAMSHIP COMPANY, AMERICAN MAIL LINE,
LTD., POPE & TALBOT, INC., NATIONAL UNION OF MARINE COOKS &
STEWARDS, CIO and DON L. ROTAN
ALASKA STEAMSHIP COMPANY and PACIFIC MARINE STEWARDS UNION,
AFL,
NATIONAL UNION OF MARINE COOKS & STEWARDS, CIO and FRANKLIN
BARKSDALE, MARSHALL ROBERT MCMONAGLE, AND Louis A. THIESEN.
Cases Nos. 19-CA-186, 19-CA-187, 19-CA-188, 19-CA-189,
19-CB-46,19-CB-78,19-CA-213,19-CB-32,19-CB-61, and 19-
GB-65. March 12, 1952
Decision and Order
On January 30, 1951, Trial Examiner Robert L. Piper issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents Pacific American Shipowners Association, Pacific Mari-
time Association, Alaska Steamship Company, American Mail Line,
Ltd., and Pope & Talbot, Inc. (herein individually referred to as
Respondents PASA, PMA, Alaska, American Mail, and P & T,
respectively, and collectively. referred to as the Respondent Com-
panies), and National Union of Marine Cooks & Stewards, CIO (here-
in called the Respondent Union), had engaged in and were engaging
in certain unfair labor practices, and recommending that they cease
and desist therefrom and take certain affirmative action," as set forth
in the copy of the Intermediate Report attached hereto. He also
found that the Respondents had not engaged in certain other unfair
labor practices alleged in the complaint, and recommended dismissal
of those allegations. Thereafter, the Respondent Companies, the
Respondent Union, the General Counsel, and charging parties Don L.
Rotan ' and Pacific Marine Stewards Union, AFL (herein called
PMSU), filed exceptions to the Intermediate Report and supporting
briefs. The Respondent Companies' request for leave to file a sup-
plemental brief, copies of which were attached to the request and were
served upon the other parties, is hereby granted. The request for oral
argument by the Respondent Companies and the Respondent Union
is hereby denied, as the record and briefs, in our opinion, adequately
present the issues and positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
98 NLRB No 99.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 583
the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, with the exceptions, modifications,
and additions noted below.
1. The Respondents, relying on Section 10 (b) of the Act, except
to all the findings made by the Trial Examiner that are based on
allegations incorporated in the complaint, as amended at the hearing,
which were not specified in the original charges or, 'in certain in-
stances, in the amended charges. Some of these allegations appear
for the first time in the complaint, and some were incorporated by
amendments to the complaint at the hearing. It is not urged, nor
does it appear, that, in either situation, Respondents were prejudiced
by being unable adequately to defend against these allegations.
We find no merit in these exceptions. Section 10 (b) of the Act
does not require charges to specify or particularize each unfair labor
practice to be litigated. It is sufficient that, as here, unfair labor
practice findings are based on conduct alleged in the complaint, as
amended, which occurred within the 6-month period preceding the
filing and serving of the initial charges.z
2. The Respondents except to various findings of the Trial Examiner
on the ground that he erred in crediting certain testimony adduced
by the General Counsel, and in refusing to credit certain testimony
presented by the Respondents. As set forth in Standard Dry Wall
Products. Inc.,3 the Board attaches great weight to the credibility
3 The Intermediate Report contains certain misstatements of fact and inadvertences, none
of which affects the Trial Examiner 's ultimate conclusions , or our concurrence therein
Accordingly , we note the following corrections ( 1) While the record shows that Sailor's
Union of the Pacific ( hereinafter called SUP ) carried on certain organizing activities in
the spring of 1948 among employers on the West Coast , it does not establish , as the Trial
Examiner found , that those organizing activities were directed against all the Respondent
Companies , ( 2) while it appears that certain members of the Respondent Union who
Joined the ranks of P11ISU had sailed on vessels operated by some of the Respondent
Companies, the record does not show that all those who abandoned the Respondent Union
in favor of PMSU had sailed on vessels operated by all the Respondent Companies, as the
Trial Examiner seems to find, ( 3) while a large number of PSMU adherents are referred to
in the Respondent Union 's blacklist of April 11 , 1949 , as "formei " members of its organiza-
tion , the record fails to support the Trial Examiner 's finding that "many" PMSU converts
were formally expelled from the Respondent Union , ( 4) insofar as the record discloses,
Starnes was a member of the Respondent Union when lie applied to the Respondent Alaska
for employment in December 1948, and not a former member, as the Trial Examiner implies
and (5 ) the record shows that on about May 31, 1949 , McMonagle asked for a job as chief
cook on the Square Stinnett , and not for employment generally, as the Trial Examiner
finds
2 Cathey Lumber Co, 86 NLRB 157, enfd 185 F 2d 1021 ( C A. 5), dismissed on other
grounds . 189 F 2d 428 ( C A 5) ; Weaver Wmntark, 87 NLRB 351 , Lally-Tulip Cup Corp.,
88 NLRB 892 ; Tennessee Knitting Mills, Inc., 88 NLRB 1103, Globe Wireless , Ltd, 88
NLRB 1262 . enfd 193 F 2d 748 ( C. A 9) ; Stokely Foods, Inc ., 91 NLRB 1267, enfd 193
F. 2d 736 ( C. A. 5) ; Ferro Stamping and Manufacturing Co , 93 NLRB 1459 . The Hunkin-
Conkey Construction Company, 95 NLRB 433 Moreover , with specific reference to the
allegations in the complaint respecting the May 7 application for employment , we find,
contrary to the Respondents , that the charge filed in Case No 19-CA-213 adequately set
forth such conduct
991 NLRB 544, enfd 188 F 2d 362 (C A. 3)
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
findings of Trial Examiners insofar as they are based on demeanor,
and acordingly does not overrule it Trial Examiner's resolution of
credibility except where the clear preponderance of all the relevant
evidence convinces the'Board that his resolution was incorrect. No,
basis for overruling him exists in this case. We therefore adopt the
Trial Examiner's credibility findings.
3. In agreement with the Trial Examiner, we find that the Respond-
ent Union did not violate the Act by its strike of September 2, 1948.
The Respondent Cofiipanies contend that the strike, called by the
Respondent Union while negotiations for a new contract were being
conducted, was for the purpose of securing an illegal preferential
hiring clause for its members. In our opinion, the preponderance of
the evidence fails to support this contention. It shows instead, as.
was found in National Union of Marine Cooks and Stewards, 90
NLRB 1099, where the identical issue deriving from the same strike
activity was before the Board, that the objective of the strike, insofar
as hiring practices were involved,, was to compel the Respondent
PASA to accede to the hiring proposal submitted by the Respondent
Union on August 31, 1948. As that proposal was a lawful one, we
shall dismiss the allegations in the complaint that the Respondent
'Union's 1948 strike violated the Act. And, as pointed out by the
Trial Examiner, although the agreement concluded between the
Respondent Union and the Respondent PASA did contain an illegal
preferential hiring clause, the Respondent Union agreed to that clause-
at the behest of the Respondent PASA.
4. We find, in substantial agreement with the Trial Examiner,
that, by becoming parties to and enforcing the illegal hiring provisions.
contained in December 2, 1948, contract,4 the Respondent Companies
violated Section 8 (a) (3), 8 (a) (2), and 8 (a) (1) of the Act. We
agree with the Trial Examiner,5 except that (a) with respect to the
Respondents PASA and P & T, we base our finding upon the Respond-
ents' act of agreeing to the December 2, contract, as there is no specific
evidence to show that they themselves ever enforced the contract;
4 Although dated December 2, 1948 , when a memorandum of agreement was initialed by
the parties, the contract itself was actually signed between December 2 and 8 , 1948 Found
to be unlawful in National Union of Marine Cooks and Stewards , supra, it was negotiated
and executed by the Respondent PASA on behalf of member companies , including the
Respondents Alaska, American Mail , and P & T, and provided, inter alia, that :
The Employers agree to give preference of employment to members of the Union,
and to secure employees in their stewards department through the offices of the
Union . .
Permit men may be replaced by Book members, and the Permit men replaced
under such circumstances shall be considered laid off.
5 There is no merit to the Respondent Companies ' claim that "In the absence of any
issue involving rival claims for recognition , the consummation of the agreement of Decem-
ber 2 , 1 948, is not subject to question " under Section 8 (a) (2). Rockaway News Supply
Company , Inc., 94 NLRB 1056
o Juluus Resnick, Inc, 86 NLRB 38; New York State Employers Association, Inc, at al.,
93 NLRB 887 . As appears hereinafter , the Respondent PASA is responsible for the
discrimination arising out of the enforcement of the contract by its member companies.
PACIF.TsG 1E.RK AM S$IPOWIViERS ASSOCIAyTION 58
and (b) in the case of the Respondent PMA, we rely on the fact that
that Respondent replaced the Respondent PASA as a party to the
illegal contract 7 and thereafter permitted the contract, with its illegal
hiring provisions, to continue in operation.
We also agree with the Trial Examiner's finding that, by executing
and enforcing the illegal contract, the Respondent Union violated
Section 8 (b) (2) of the Act. However, we do not agree with his
finding that the Respondent Union did not violate Section 8 (b) (1)
(A) by this conduct. For the reasons stated in New York State
Employers Association, Inc., supra, we find that the Respondent
Union violated Section 8 (b) '(1) (A) of the Act by its execution
and enforcement of the illegal contract. Our holding that the Re-
spondent Uiiion enforced the illegal contract is based in part on the
blacklist distributed by the port agent of the Seattle branch of the
Respondent Union to other port agents of the Respondent Union, as
fully described in the Intermediate Report.
Contrary to the Respondents, we find that the record does not sup-
port a finding that the hiring provisions of the contract in question
were, as to experienced and qualified seamen, administered by the
Respondent Union in a nondiscriminatory manner- after January
1949. To support their position, the Respondents rely on testimony
given at the hearing that in January 1949 Harris, port agent of the
Respondent Union, advised Ward and Nichols, dispatchers for the
Respondent Union, that qualified and experienced seamen-who applied
for employment were to be dispatched without regard to their union
status. Significantly, however, no evidence was adduced to show
that the alleged change in policy was ever made known to the Respond-
ent Companies' or their employees, or put into practice. On the
other hand, there is ample indication that the Respondent Union
did not alter its discriminatory dispatching policy in the following :
(a) the blacklist of April 11, 1949, because of rival union activity,
hereinafter discussed; (b) 'the Respondent Union's rejection on April
29, 1949, of the April 16 request by PMSU organizer Rotan that 94
persons, all described by Rotan as "qualified seamen" (many of them
appeared on the blacklist), be allowed to seek employment through
the Respondent Union's hiring hall; and (c) the fact that in July
1949 the Respondent Union adopted new shipping rules which, like
the ones replaced, provided for a priority in shipping to members of
the Respondent Union. Accordingly, we perceive no basis for mod-
ifying the findings herein on this ground.
7 On May 20 , 1949 , the Respondent PASA and other employer associations were con-
solidated into the Respondent PMA, which came into formal existence shortly thereafter.
Upon consolidation , the Respondent PMA succeeded to all the rights, properties , debts, and
liabilities of the Respondent PASA, and, as provided for in the- consolidation agreement,
all members of the Respondent PASA ipso facto became members of its successor.
586 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD' =
5. We find, for the reasons fully set forth in the Intermediate
Report, that none of the Respondent Companies or the Respondent
Union violated the Act on either January 5 or 11, 1949.
6. On April 11, 1949, Joseph C. Harris, port agent of the Seattle
branch of the Respondent Union, sent a letter to Alaska Fishermen's
Union, (herein called AFU), which had a contract with employers
in the canning industry requiring union membership and clearance
as a condition of employment, in which it referred to those named
on an attached list as "former members of the National Union of
Marine Cooks and Stewards, who deserted this Union during the
1948 maritime strike and attempted to organize a dual organization
under the leadership of the Sailors Union of the Pacific for the pur-
pose of breaking our strike and destroying our union." It then
impliedly suggested that those individuals be denied employment
in the canning industry. Thereafter, several on this blacklist were
unable to obtain work in the canning industry because of AFU's
refusal, on account of the blacklist, to clear them.
The Trial Examiner found, and we agree, that the Respondent Union
violated Section 8 (b) (1) (A) of the Act because of the blacklist
which it sent to AFU 8 Section 7 of the Act guaranteed to those
named in the blacklist the right to refrain from supporting the Re-
spondent Union's 1948 strike activities, and to assist, instead, in the
organizational activities of a labor organization of their choosing.
As already found, several of those individuals were deprived of em-
ployment as a result of the intervention on April 11 by the Respond-
ent Union, because, having exercised the freedom of choice which
Section 7 protects, they had fallen into disfavor with the Respondent
Union. The rejection of their employment applications because of
the Respondent Union's conduct made it unmistakably plain to the
employees in question, and to the others named in the blacklist, that
they must either regain good standing in the Respondent Union or
forego opportunity for employment. In these circumstances, it is
clear that the Respondent Union's effective blacklist restrained and
coerced employees in the exercise of rights guaranteed by the Act. We
accordingly find that the Respondent Union thereby violated Section
8 (b) (1) (A) of the Act.9
6 Member Murdock does not join in this finding See his separate partial dissent
9 Cf. The Rus8ell Manufacturing Co , 82 NLRB 1081, enf. den . on other grounds, 187 F.
2d 296 and 191 F. 2d 358 ( C A 5), where the Board held the establishment of an effective
blacklist by employers to be a violation of Section 8 (a) (1) of the Act. See also the
following cases in which the Board made it clear that economic reprisals against specific
individuals for the purpose of compelling them to join or assist a union is proscribed by
Section 8 ( b) (1) (A) of the Act• National Maritime Union , et al., 78 NLRB 971, enfd
175 F . 2d 866 (C. A 2) ; International Typographical Union, 86 NLRB 951 , enfd. 193 F.
2d 782 ( C A. 7) ; Clara-Val Packing Company , 87 NLRB 703, enf. den on other grounds,
191 F. 2d 556 ( C. A 9)'; Marine Cooks and Stewards ( Burns Steamship Co.), 92 NLRB
877; Miamt Copper Company, 92 NLRB 322.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 587
We do not agree with our dissenting colleague that the blacklist
sent to AFU was designed to strengthen and protect the illegal con-
tract against the activity of dissident members and, as such, is an
intrinsic part of conduct which we have already found to be unlawful.
As is clear from the above, and the Intermediate Report, the blacklist
was in fact designed to penalize employees for their activity during
the 1948 strike. Moreover, we believe that sending the blacklist to
AFU was collateral to the actual enforcement of the contract; to hold,
as we do, this to be a separate violation of Section 8 (b) (1) (A) is
akin to finding coercive a separate statement to an employee by a
contracting party affirming the illegal hiring hall arrangement.
The General Counsel has, however, excepted to the Trial Exami-
ner's failure to find that the Respondent Union's conduct in connec-
tion with the blacklist sent to AFU violated Section 8 (b) (2), as well
as Section 8 (b) (1) (A), of the Act. His contention that there was
a'violation of Section 8 (b) (2) 10 proceeds on the theory that, whereas
the first proscription of Section 8 (b) (2) refers to cases in which a
labor organization causes or attempts to cause employer discrimina-
tion, the second refers to cases in which a labor organization itself
discriminates against an employee "in ways that affect hire, tenure
and conditions of employment" and where no correlative action by
the employer is involved. According to the General Counsel, the facts
herein show such discrimination by the Respondent Union against the
individuals on the blacklist.
In effect, the General Counsel would read Section 8 (b) (2) as
establishing two unfair labor practices on the part of a labor organi-
zation, with only one of them involving discrimination by an em-
ployer. With this construction we do not agree. In our opinion, it
is neither supported by the language of the section, 'especially when
read in the light of the other provisions of the Act, nor the section's
legislative history. In Eclipse Lumber Company, Inc., 95 NLRB 464,
the Board, in effect, rejected a similar contention. Moreover, the
Board has already applied the second portion of Section 8 (b) (2)
against a union which caused an employer to discharge an employee
whose membership in the union had been denied or terminated on
some ground other than his failure to tender the periodic dues and
initiation fees uniformly required as a condition of acquiring or re-
10 Section 8 (b) (2) reads as follows
It shall be an unfair labor practice for a labor organization or its agents ... to-
cause or attempt to cause an employer to discriminate against an employee in viola-
tion of subsection (a) (3) or to discriminate against an employee with respect to
whom membership in such organization has been denied or terminated on some ground
other than his failure to tender the periodic dues and the initiation fees uniformly-
required as a condition of acquiring or retaining membership
588 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
taming membership;11 Contrary to the, Genera, Counsel, therefore,
we find that the second, as well as the first, portion of Section 8 (b) (2),
was meant, in the, language of the Trial Eziuniner, "to prohibit caus-
ing or attempting to cause employer discrimination and not union
discrimination independent of an employer." In view thereof, and
the Trial Examiner's finding, to which no exception was taken, that
AFU did not itself occupy the position of an employer as to those
on the blacklist, or the agent of such an employer, we conclude that
the Respondent Union did not violate Section 8 (b) (2) of the Act
by reason of the blacklist which it sent to AFU on April 11, 1949.
7. We agree with the Trial Examiner's holding that, by executing
and enforcing the December, 2 contract, the Respondent Alaska dis-
criminatorily refused to reemploy, or discharged, the 27 complain-
ants listed in Appendix B of the Intermediate Report, in violation
of Section 8 (a) (3) and 8 (a) (1) of the Act, and that the Re-
spondent Union caused this discrimination, in violation of Section
8 (b) .(2) and 8 (b) (1) (A) of the Act.
As fully detailed in the Intermediate Report, the 27 complainants
were employed on ships operated by the Respondent Alaska at the
time those ships were tied up on account of the strike. Under the
maritime practice and custom then prevailing those 27 employees,
and all other employees of the Respondent Alaska similarly situated,
were entitled to be redispatched to their identical prestrike jobs,
without regard to their union status, when, upon the conclusion of
the strike, the ships on which they had served were again put into
service. As already noted, however, on December 2 an agreement was
arrived at for settling the strike. This agreement, formalized between
December 2 and 8, provided for preference of employment to mem-
bers of the Respondent Union. News of the strike settlement ap-
peared as "front page headlines" prior to December 8. On various
dates between December 7, 1948, and May 16, 1949, the ships on which
the complainants were serving at the outbreak of the strike were
again put into service and crews were hired. None of the 27 com-
plainants in question, including those among them who made appli-
cation therefor, was returned to his prestrike job on those ships.
It is clear from the foregoing that, although the 27 complainants
were entitled to return to their prestrike jobs on a nondiscriminatory
basis, i. e., without regard to their precise union status at the time,
the Respondent Alaska, by entering into an agreement with the Re-
spondent Union which required preferential treatment in all cases
11 Ferro Stamping and Manufacturing Co , supra. The Employer involved was exculpated
by the Board because it did not have reasonable grounds for believing that the employee's
membership was terminated for reasons other than his alleged failure to tender the periodic
dues and initiation fees uniformly required as a condition of acquiring or retaining
membership.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 589
for members' of the Respondent Union, erected an illegal barrier
against their reemployment which effectively precluded them from
returning to their prestrike jobs except as members of the Respond-
ent Union. This action on the part of the Respondent Alaska was
tantamount to an absolute refusal to reemploy all the complainants 12
We find this to be so, even as to those complainants who did not re-
quest their prestrike jobs. Clearly, any such application would have
been futile, unless the complainants were willing to comply with the
discriminatory condition imposed by the .Respondent Alaska, and this
they were not required to do.13
In support of its position that no illegal condition was ever imposed
by it as against any of the complainants in the group under discus-
sion, and that no unlawful discrimination therefore occurred, the
Respondent Alaska points to an oral agreement entered into on Novem-
ber 28, 1948, in which it and the Respondent Union agreed that, at the
conclusion of the strike, they would adhere to the maritime practice
and custom described above. It also relies on the action taken with
respect to 6 of the complainants, namely, George Responte, A. W.
Charlesworth, Hugh McIntyre, John W. Smoczyk, Thomas C. Harris,
and Louis Larsen, who, on May 7, 1949, requested employment in
their prestrike jobs on the Aleutian, as evidence of the fact that it did
not impose an illegal condition upon their reemployment, and of its
bona fide attempt to live up to the November 28 agreement. We find
no merit in the Respondent Alaska's position. For the record estab-
lishes, and we find, that the November 28 hiring arrangement was
superseded by the one on December 2, and that the December 2 agree-
ment, rather than the November 28 understanding, was invoked
against those in the position of the 27 complainants, including the 6
individuals who applied for their prestrike jobs on May 7. Thus, the
agreement reached on December 2 failed to recognize in any way the
preferred status held by those whose employment was interrupted by
the strike. Indeed, the only employees given a preference of employ-
ment by that agreement were those who belonged to the Respondent
Union, whether or not they were employed on ships tied up at the out-
break of the strike.
Moreover, at no time were the terms of the November 28 agree-
ment ever made public, either before or after December 2. Further-
more, when employees entitled to their prestrike jobs applied in timely
fashion for those jobs they were refused employment by the Respond-
"See Eagle-Picker Mining & Smelting Company v . N. L. R B, 119 F . 2d 903 (C A. 8),
enfg. 16 NLRB 727; Carlisle Lumber Company , 2 NLRB 248 , enfd. 94 F. 2d 138 (C. A 8) ;
Shellabarger Grain Products Company , 8 NLRB 336 , enfd 110 F 2d 78 (C. A. 9) ;
Sunshine Mining Company , 7 NLRB 1252 ; Jacob A Hunkele, 7 NLRB 1276 ; I Spiewak
& Sons , 71. NLRB 770
11 It is not contended tiiat, as of the time their prestrike jobs became available, these
complainants had withdrawn from the labor market.
590 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD
ent Alaska on account of the December 2 contract. The illegal
contract was specifically assigned by the Respondent Alaska on May
12 as the reason for its rejection of the May 7 application for employ-
ment made on-behalf of the 'six complainants named above and others.
And although the Respondent Alaska places much emphasis upon the
fact that on May 13 it requested the Respondent Union to dispatch
the afore-mentioned six complainants, we are not satisfied that the
request was made in recognition of the unqualified right of those six
employees to return to work under the November 28 agreement, or
that the Respondent Alaska was genuinely interested in facilitating
their return to work. Having already been advised by Rotan's appli-
cation for employment dated March 31, 1948, which is discussed
hereinafter, that each of the six complainants had been discriminated
against by the Respondent Union, and was unwilling to "proceed
through the channels of that organization to secure employment," the
request to the Respondent Union to dispatch them was a mere nullity.
Significantly, too, at no time did the Respondent Alaska seek to con-
tact them through Rotan, who was, to the Respondent Alaska's
knowledge, acting as their representative in employment matters.
On the basis of the foregoing, and the entire record, we find that
the Respondent Alaska, by its execution and enforcement of the De-
cember 2 contract, as described above, effectively repudiated the No-
vember 28 oral agreement and imposed an illegal condition upon the
reemployment of the employees in the prestrike group under discus-
sion, and thereby discriminated against them in violation of Section
8 (a) (3) and 8 (a) (1) of the Act14
It is equally clear that the discrimination against these 27 com-
plainants is also attributable to the Respondent Union. Its respon-
sibility under the cases derives from the very existence of the Decem-
ber 2 contract, to which it was a party, and the enforcement of the
contract by the Respondent Alaska 15 Although, as noted above, the
Respondent Union was a party to the November 28 oral agreement,
it, no more than the Respondent Alaska, can avail itself of that agree-
ment as a defense herein. For apart from the considerations adverted
to in appraising Respondent Alaska's liability, there is other evidence
in the record which impels us to conclude that the Respondent Union,
like the Respondent Alaska, at no time during the critical period ad-
hered to the November 28 oral agreement. Thus, (a) the Respond-
ent Union rejected Starnes' timely request for his prestrike job with
14 In the absence of exceptions thereto, we adopt without comment the Trial Examiner's
finding that the Respondent Alaska did not similarly discriminate against those individuals
who were employed on ships operated by the Northland Transportation Company at the
outbreak of the strike.
15 Childs Company, 93 NLRB 281; Del F. Webb Construction Company, 95 NLRB 75,
Consolidated Western Steel Corporation , 94 NLRB 1590
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 591
the statement that he "had better take a long vacation"; (b) on De-
cember 16 , 1948, the membership of the Respondent Union's Seattle
branch adopted its acting agent's report that "The list of renegades
from MCS [which included those among the group in question who
had transferred their allegiance from the Respondent Union to
PMSU] will be distributed to the NMU and SILT, as well as to all
of our branches, and these people are going to have a pretty hard
time doing their dirty work any place"; (c) on April 29, 1949, the
Respondent Union rejected the April 16 request by Rotan that 94 per-
sons , including 10 of those in the prestrike group of complainants
whose jobs had not yet been filled, be allowed to, utilize its hiring hall;
and (d) on April 11 the Respondent Union circulated a blacklist on
which virtually all those in the group in question were listed; and (e)
as the Intermediate Report fully shows, after having been advised by
the Respondent Alaska on May 13 to dispatch the 6 complainants on
the May 7 application who were entitled to prestrike jobs, the
Respondent Union made an insincere attempt to locate those
complainants.
In view of the foregoing , and the other evidence in the record, we
conclude, as did the Trial Examiner , that the Respondent Union caused
the Respondent Alaska to discriminate against the 27 complainants
named in Appendix B of the Intermediate Report, in violation of
Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
8. The Trial Examiner found that, by rejecting the individual ap-
plications for employment made by Robert E. Jewell , Leslie B. Smith,
Louis Theusen, Marshall R. MeMonagle , and Ralph J. Starnes, be-
cause of the illegal provisions of the December 2 contract , the Re-
spondent Alaska violated Section 8 (a) (3) and 8 (a) (1) of the Act ;
and that, by causing the Respondent Alaska so to discriminate, the
Respondent Union violated Section 8 ( b) (2) and 8 ( b) (1) (A) of
the Act. We agree with these findings.
The Respondents concerned contend that they did not violate the
Act as found by the Trial Examiner mainly because ( a) Smith made
no "direct . . . request . . . for employment ," but merely asked how
he, could go about getting work and whether he was acceptable for em-
ployment; and , in any event , his application was not a "bona fide, good
faith one"; ( b) Theusen was "last employed in and sought employ-
ment . . . in a supervisory capacity "; ( c) McMonagle did not make a
bona fide, unconditional application for employment ; and (d ) Starnes
was not denied employment for illegal reasons and , in advising the
other complainants to "clear" through the Respondent Union, the
Respondent Alaska was simply requiring them to apply for employ-
ment in the normal and customary manner , and it had no reason to
believe that the Respondent Union would refuse to dispatch them.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the reasons set forth below , we are not persuaded by the foregoing
contentions.
Thus, contrary to the Respondents , we are of the opinion and find
that Smith, by asking "about getting . . . [his] job back on the
ALASKA, and whether . . . [he] would be acceptable for employ-
ment," clearly made known to the Respondent Alaska his desire for
employment at that very time. The further contention that his appli-
cation for employment was not, in any event, made in good faith is
equally'lacking in merit . The Respondents appear to rely on Smith's
testimony that, because of fear of bodily harm on account of his adher-
ence to PMSU, he would not have accepted a position with the Re-
spondent Alaska if the rest of the crew was made up of members of the
Respondent Union. Contrary to the apparent contention of the Re-
spondents, however, it is clear that this evidence does not prove that
Smith had no intention of accepting work under any circumstances.
In our opinion , it shows merely that Smith would not have accepted
employment under conditions which threatened his physical safety.
It therefore plainly fails to impugn the bona fides of his application.
As to Theusen , we find: that he was entitled to the protection of the
Act notwithstanding the fact that his previous employment with the
Respondent Alaska was in a supervisory capacity16 Although
Theusen held a supervisory job during a trip for the Respondent
Alaska which ended in Juwe 1948, his request on January 5, 194.9, was
for "a job going to sea" (italics added). Since Theusen was quali-
fied to hold virtually any job in the stewards department of a
ship , and had, prior to January 1949 , sailed in nonsupervisory posi-
tions, we view his request, so broadly stated by him , as encompassing a
nonsupervisory position.
McMonagle testified at the hearing that he would not have accepted
employment with the Respondent Alaska without some assurance
from the Respondent Union that he would be free from physical vio-
lence if he went to work for ,the Respondent Alaska. For the reasons
already stated with respect to Smith, we find that this testimony does
not impugn the bona fides of his application. As to the alleged con-
ditional nature of that application , it is clear that that could not have
been an operative factor in its rejection , for not until the hearing did
the Respondent Alaska become aware of the mental reservation with
which the application was made.
The Respondents ' remaining argument amounts in substance to a
claim that the Respondent Alaska's action with respect to all five com-
plainants was in accordance with an established lawful hiring pro-
7B John Hancock Mutual Life Insurance,Company, 92 NLRB 122, enfd . 191 F 2d 483
(C. A. D. C.)
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 593
cedure. However, we have already found in the case of Starnes that
the December 2 illegal contract was invoked to deny him employment 17
In addition, the record shows that Theusen, Smith, and McMonagle
were told by the Respondent Alaska that its contract with the Re-
spondent Union required them to obtain clearance through the
Respondent Union, and that Jewell, before being advised to "clear"
through the Respondent Union, was told, "You know what you have
to do to get a job, don't you." As already indicated, that contract
did not merely require the Respondent Alaska to hire its steward's de-
partment personnel exclusively through the Respondent Union; it
required, in addition, that preferential treatment be given to applicants
for employment who were members of the Respondent Union, and, in
practice, that is precisely what was done. Under all the circum-
stances, therefore, we find, as did the Trial Examiner, that, in deny-
ing employment to Smith, Theusen, McMonagle, Starnes, and Jewell,
the Respondent Alaska was actually adhering to a discriminatory
referral and hiring arrangement, in violation of Section 8 (a) (3)
and 8 (a) (1) of the Act 18
The Respondent Union contends in effect that, even if the Respond-
ent Alaska be held to have violated Section 8 (a) (3) under the cir-
cumstances described above, to find a violation of Section 8 (b) (2)
against the Respondent Union it must appear that the complainants
applied for, and were discriminatorily refused dispatch, through the
Respondent Union's hiring hall. We have already pointed out that
no such burden can be imposed upon an applicant where, as here,
the hiring hall is operated in a discriminatory manner. Those re-
sponsible for an unlawful hiring arrangement are also responsible
for the results reasonably to be anticipated. It is noteworthy that,
in telephone conversations with Smith and Theusen which took place
on the same day that each of them applied to the Respondent Alaska
for a job, the Respondent Union made it unmistakably clear to
those complainants that it would not dispatch them through its hiring
hall. Accordingly, even assuming arguendo that the complainants
made no attempt to be dispatched through the Respondent Union, we
find that the Respondent Union caused the Respondent Alaska to
discriminate against those complainants, in violation of Section 8 (b)
(2) and 8 (b) (1) (A) of the Act. ,
11 Although the Respondent Alaska claims that the provisions of that contract were not
known to it until sometime after Starnes communicated with it, it appears that by December
2 there was complete agreement on the substantive matters of the contract, which was
formalized at a later date, and that , when Zumdieck , superintendent of the Respondent
Alaska, left San Francisco. the scene of the contract negotiations, on December 5, he was
told that "we would obtain our men in the same manner as we had always done "
'A Daniel Hamm Drayage Company, Inc, 84 NLRB 458, enfd 185 F 2d 1020 (C. A 5)
Consolidated Western Steel Cot pot atzon, supra, net E Webb Construction Company, supra;
Utah Construction Company , 95 NLRB 196.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. The Trial Examiner found, and we agree, that, by discrimina-
torily rejecting the application for employment made by Thomas J.
Howard, the Respondent American Mail violated Section 8 (a) (3) and
8 (a) (1) of the Act, and that, by causing such discrimination, the
Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of
the Act.
Our finding in this donnection is based on Howard's credible tes-
timony that on about December 6, 1948, he inquired of the Respondent
American Mail "about the saloon pantryman's job that . . . [lie]
had been holding up to the time of the strike" and was told that, be-
cause of the contract which the Respondent American Mail had signed
with the Respondent Union, he would have to go through the Re-
spondent Union's hiring hall. For the reasons already made clear in
the cases of Smith and McMonagle, we reject the contentions of Re-
spondent American Mail that Howard's mental reservations as to
the job requested, made known to it for the first time only at the
hearing, affect the validity of his application.
10. By letter dated March 31, 1949, Rotan requested employment
for the 92 individuals whose names,appear in Appendix D of the
Intermediate Report. The application read in pertinent part :
I am enclosing a list of ninety-two (92) names . . . As
their designated representative, I hereby apply for positions for
each one on said list with the Alaska Steamship Company. For
those on the list who previously worked with your company, I
am applying for the positions last previously held. For those
on the list who may not have been employed by your Company,
I am applying for the position of Messman for each one.
Each man on the list is capable and competent to perform work
in the Steward's Department on vessels of Alaska Steamship
Company. Each man will report promptly when called for
prospective positions, by your Company.
By letter dated April 11, 1949, the Respondent Alaska replied to
Rotan as follows :
We acknowledge receipt of your letter of 31 March 1949 . . .
in which is enclosed a list of names of 92 persons on whose behalf
you apply for positions with this company.
The matter of employment of Steward's Department personnel
for this company is now the subject of various unfair labor prac-
tice charges filed with the National Labor Relations Board, to-
gether with a petition by your organization for certification. We
presume that in due course the issues presented will be clarified
by the action taken by the National Labor Relations Board.
The Trial Examiner found that the Respondent Alaska, by its reply
of April 11, refused to take action on the March 31 application be-
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION ' 595
cause of the December 2 contract.'s' He concluded that the Respond-
ent Alaska thereby violated Section 8 (a) (3) and 8 (a) (1) of the
Act, and that the Respondent Union, by causing the Respondent
Alaska to discriminate against the employees involved, violated Sec-
tion 8 (b) (2) and 8 (b) (1) (A) of the Act. For the reasons stated
by the Trial Examiner we agree with the Trial Examiner's conclusions,
except in the cases of the eight complainants named hereinafter for
whom supervisory jobs were requested.
Like the Trial Examiner, we are satisfied from all the record that
the March 31 application was made to secure work for all or any of the
individuals named in it and, contrary to the Respondents, was not
intended to cause discrimination against other employees or designed
to further the bargaining position of any union. The facts in Vaughn
Bowen, et al., 93 NLRB 1147, relied upon by the Respondent
Companies, are wholly distinguishable.
Significantly, although the Respondent Alaska now contends that
Rotan's request appeared to it to require the commission of an unfair
labor practice, it did not specifically assign that as a reason for reject-
ing the application. In any event, it is sufficient that one of the rea-
sons motivating the Respondent Alaska to act as it did was the illegal
hiring provisions of the December 2 contract.20
We do not agree with the argument that the application as to many
complaints was based on conditions which the Respondent Alaska
was not required to meet, as shown by their testimony at the hearing;
and that the Respondent Alaska was therefore "privileged" to act upon
the application as it did. In this connection the Respondents point to
testimony by complainants that they would not have accepted employ-
ment except under certain conditions, such as employment of other
PMSU members and prior approval by PMSU. However, the record
shows quite clearly that the application was not submitted on behalf
of any of the complainants on a conditional basis. Thus, the applica-
tion itself contained a simple request for employment, with no condi-
tions attached. And, although Rotan indicated to the Respondent
"Nowhere does the Respondent Alaska negate the intent ' revealed by the April 11 reply
to continue to adhere to the hiring practice required by the December 2 contract until that
contract was set aside by the Board Indeed, it is noteworthy that ( a) Zumdieck testified
that "subsequent to the receipt of this list in March" it would not have been possible
to operate if the Respondent Alaska had secured personnel from a source other than the
Respondent Union, "because we have a contract with the Marine Cooks & Stewards
Union, and if we attempted to obtain our men from any other source, we would have
', iolated our contract , and also would have been in serious difficulties ," and (h ) as appears
hereinafter , the Respondent Alaska continued to adhere to the December 2 contract after
April 11.
^ See Butler Bros . v. N. L. R. B , 134 F 2d 981 (C A. 7), cert. den. 320 U. S. 789 ;
Cripples Company Manufacturers v N. L R. B., 106 F 2d 100 ( C. A 8), Kansas City
Pouter and Light Company v N L R. B, 111 F. 2d 340 (C. A 8) , Lone Star Gas Coin-
pany, 52 NLRB 1058, Kingston Cake Company, Inc., 91 NLRB 447, remanded on other
grounds , 191 F 2d 563 (C. A 3)
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alaska on March 10 that PMSU, members were generally reluctant
to accept individual assignments, it was not made known to the
Respondent Alaska at the time the March 31 application was submitted
that any of those individuals named in the application entertained
certain mental reservations about going to work for it. The applica-
tion, by its terms, was unconditional and was rejected by Respondent
Alaska without condition. In these circumstances, it would appear
that the conditions which the Respondent Alaska presently asserts
it was not required to meet could not have been an operative factor
in its rejection of the application.21
We also reject the Respondents' contention that no finding of dis-
crimination is proper because the jobs asked for were nbt available
at or about the time of the application. Recent Board cases make it
clear that, even though no jobs may then have been available, the Act
was violated in this case when the Respondent Alaska made it apparent
to Rotan by its letter replying to the application that it would not hire
the complainants in question because of the recent December 2 con-
tract. In the face of the Respondent Alaska's position, Rotan was
not required to continue making the useless gesture of continuous
application on their behalf to establish the responsibility for the
discrimination practiced against them.22
We do, however, find merit in the Respondents' contention, insofar
as it relates to the March 31 application, that the complaint should
be dismissed as to eight of the complainants, namely, Herbert L. Baker,
Harold Krause, Clifford Lattish, Lee Whaley, George C. Heard,
William Lande, John Siewick, and Thomas Martin, because on March
31 they were applying for supervisory positions, and were therefore
not entitled to the protection of Section 8 (a) (3) of the Act 23
We are of the opinion that, when Congress amended the Act to
exclude supervisors from the definition of the term "employee," it
thereby denied to those seeking and to those holding supervisory jobs
the protection of Section 8 (a) (3). To hold that the protection of
this section extends to the former but not to the latter would be to undo
at the very threshold of the relationship the exempt status accorded
to supervisors by Congress.24 For it would result in the congressional
21 We find it unnecessary to decide what the result herein would have been had those
conditions been incorporated in the application.
22 Daniel Hamm Drayage Company, Inc., 84 NLRB 458, enfd . 185 F. 2d 1020 (C. A. 5) ;
Arthur G. McKee and Company , 94 NLRB 399; Swinerton and Walberg Company, et at.,
94 NLRB 1079 ; General Electric Company, et at. , 94 NLRB 1260; Utah Construction
Company, supra, Cantrell Co., 96 NLRB 786.
23 Member Murdock does not agree with the dismissal of the complaint as to these persons
for the reasons fully set forth in his separate partial dissent.
24 In commenting upon the meaning of the amendment to the Act which excludes super-
visors from the definition of "employee," House Report No. 245 on H. R . 3020 , 80th Cong.,
at p. 17, says :
What the bill does is to say . . . That no one, whether employer or employee, need
have as his agent one who is obligated to those on the other side , or one whom, for
any reason , he does not trust.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 597
regulation of the very act of recruitment of such supervisory per-
sonnel. Indeed, Senator Flanders, who took a leading part in shaping
the supervisory definition to include those who responsibly direct
employees, struck the keynote of congressional concern on this subject
in the following remarks (Cong. Rec., May 7, 1947, at p. 4804) :
In large measure, the success or failure of a manufacturing
business depends on the judgment and initiative of these men
[who responsibly direct]. The top management may properly be
judged by its success or failure in picking them out and in back-
ing them up when they have been properly selected . . . Un-
less the employer can hire and discharge, promote, demote and
transfer these men, he has lost control of his business. (Emphasis
supplied.)
Unlike the Trial Examiner and our dissenting colleague, we do not
regard Briggs Manufacturing Company, 75 NLRB 569, as controlling
in the complainants' favor. That case involved an 8 (4) violation
which took place before the 1947 amendments to the Act. Nor can
we subscribe to the position of our dissenting colleague that Section 2
(3), in excluding individuals "employed" as supervisors from the
coverage of Section 8 (a) (3) of the Act, refers to) those "presently
employed" in, and not to those applying for, supervisory positions.
Followed to its logical conclusion, this interpretation would extend
the Board's jurisdiction to cases involving applicants for jobs as agri-
cultural laborers or for employment with a parent or spouse, since
these excluded classifications are referred to in this very section in
identical language. Clearly, the latter was not the congressional in-
tent. It follows, therefore, that the language alluded to above is that
of classification, and not of description of a status already achieved.
Further, we cannot agree that our decision herein affects adversely the
rights of nonsupervisory employees in the particular respect which
concerns our dissenting colleague : viz, where a rank and file employee
of a particular employer, who applies to his employer for promotion
to a supervisory vacancy, is told that he will not receive consideration
for the promotion because he has been an active union member. A
refusal to accord an actual employee the normal consideration for
promotion to a higher position, albeit that of supervisor, based on
protected concerted activity during such employment, would clearly
be a violation of the rights of nonsupervisory employees.25 '
25Cf Inter-City Advertising Company of Greensboro, N C, Inc, 89 NLRB 1103. The
principle of the case relevant here was not passed upon by the Court in N. L R . B v. Inter-
City Advertising Co, 190 F. 2d 420 (C A. 4).
Contrary to our dissenting colleague , in answering his hypothetical case we do not
draw any distinction between employees of a particular employer and members of the
working class in general who are in fact employees within the Act's meaning. In the
situation postulated by the dissent , the person involved is an employee by reason of his
current employment and is being discriminated against while in that status , whereas the
998666-vol 98-53--39
598 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Accordingly, we conclude that, as of the time of their application
for supervisory position on March 31, the eight complainants in ques-
tion must be considered as supervisors for purposes of Section 8 (a)
(3) of the Act; and we conclude further that, in conditioning the
employment of these individuals as it did on April 11, 1949, the Re-
spondent Alaska did not discriminate against them in violation of
Section 8 (a) (3) of the Act. We shall therefore dismiss the com-
plaint in this respect 26
On the basis of all the foregoing, and the entire record, we find that
on April 11, 1949, the Respondent Alaska discriminatorily denied
employment to all the complainants named in Appendix D of the
Intermediate Report, except Herbert L. Baker, Harold Krause, Clif-
ford Lattish, Lee Whaley, George C. Heard, William Lande, John
Siewick, and Thomas Martin, in violation of Section 8 (a) (3) and
$ (a) (1) of the Act, and that the Respondent Union caused the Re-
spondent Alaska to discriminate against those complainants, in viola-
tion of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.-
11. We agree with the Trial Examiner's finding that on May 12,
1949, the Respondent Alaska unlawfully rejected the application for
employment on the Aleutian made by Rotan on May 7 on behalf of
the 78 persons whose names appear in Appendix E of the Intermediate
Report, thereby violating Section 8 (a) (3) and 8 (a) (1) of the Act,
and that the Respondent Union caused such discrimination, in viola-
tion of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
Substantially the same defenses are advanced in.connection with
the instant application as we were advanced with respect to the March
31 application. In the main, the Respondents argue that (a) the
General Counsel failed to make out a prima facie case, and (b) the
application was not a bona fide, unconditional one and, at least as it
appeared to the Respondent Alaska, called for a violation of the Act.
As to all the complainants, we find, on the basis of Rotan's credible
testimony, that each complainant had authorized him, by May 7 to
seek the specific job requested for him in the application. According
to Rotan, the majority of the complainants were contacted about 10
days before May 7. The authorizations of the others appear to have
been secured sometime prior thereto, but subsequent to the latter part
of December 1948. We find further, in the absence of any persuasive
evidence to the contrary, that the complainants were available for
eight applicants for employment as supervisors here were denied employment at a time
when , as shown above, they were in a nonemployee status under the Act
° Our order that the Respondent Alaska offer employment and award back pay to six
of these complainants , namely, Baker , Krause , Whaley, Heard , Lande, and Siewick, is
based on the discriminatory rejection of their May 7, application for rank and file jobs,
more fully discussed hereinafter.
z+ Daniel Hamm Drayage Company , Inc., supra ; Consolidated Western Steel Corporation,
supra , Del E Webb Construction Company, supra ; Utah Construction Company, supra.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 599
employment on May 7. Many complainants who appeared at the
hearing either corroborated Rotan's testimony as to his authority to
act for them, or made plain their availability on the date of the ap-
plication. Rotan's testimony indicates that all the complainants were
available on May 7. The contention that a prima facie case was not
established, is, therefore, without merit.
The contention that the May 7 application was not a valid one, but
actually designed to further the bargaining position of PMSU or
SUP, rests largely on the assertion, also not sustained in the record,
that the application was on an "all or none"' basis. While it appears
that on March 10 Rotan had sought to aid the petition for certification
about to be filed by SUP by suggesting to the Respondent Alaska that
it "break out" the Aleutian and fully man it with PMSU members,
this suggestion was unequivocally turned down at about that time.
And the record otherwise fails to establish that any subsequent appli-
cation, including the one on May 7, was similarly qualified or moti-
vated. Indeed, we find that the preponderance of the evidence af-
firmative establishes that the application was not on an "all or none"
basis. Thus, for example, Rotan, who was considered by the Trial
Examiner to be a generally credible witness, testified that in his con-
versation with Respondent Alaska's labor relations adviser on May
-12, at which time the application was rejected, he "repeatedly" asked
if the Respondent Alaska "was going to hire any of those men on the
list" (Emphasis added). Furthermore, we regard as entirely
plausible Rotan's explanation that an applicant was submitted for
each available job "because we might as well find out whether we were
going to be discriminated against in all ratings." In the light of the
foregoing, the circumstance that the application listed one applicant
for each nonsupervisory job, or the fact that Rotan hoped to succeed
in getting all the jobs requested, lacks controlling significance. And
the testimony by some of the complainants that they would not have
gone to work except under the circumstances already alluded to, does
not, as the Respondents contend, establish that the application was a
conditional one. For it is plain from all the above that the May 7
application, like that of March 31, was"submitted on an unconditional
basis, with no strings attached. Also, particularly in view of Rotan's
conversation with Dobrin, quoted above, the Respondent Alaska's
claim that it appeared to it that any compliance with Rotan's demand
would have resulted in its violating the Act does not have a convincing
ring. In any event, the fact that the application may have appeared to
the Respondent Alaska to require the commission of an unfair labor
practice cannot serve to absolve it of liability herein, as the Respondent
Alaska made it plain by its reply of May 12 that the illegal hiring
provisions of the December 2 contract were a motivating factor in its
refusal to hire all or any of the applicants.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We conclude that on May 12, 1949, the Respondent Alaska dis-
criminatorily denied employment to the complainants listed in Ap-
pendix E of the Intermediate Report, in violation of Section 8 (a)
(3) and 8 (a) (1) of the Act, and that the Respondent Union caused
the Respondent Alaska to discriminate against these complainants, in
violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act .211
12. The General Counsel and the charging parties Rotan and PMSU
have excepted to the Trial Examiner's failure to hold, as alleged in the
complaint, that the Respondent PASA and its successor, the Respond-
ent PMA, illegally discriminated against complainants herein, and
that the Respondent Union unlawfully caused such discrimination.
Insofar as the Respondent PASA and the Respondent Union are con-
cerned, we find merit in these exceptions.
As already shown, in those cases where we have found that the
Respondent Alaska and the Respondent American Mail illegally re-
fused employment to complainants, the refusal to hire was the proxi-
mate result of the discriminatory referral and hiring arrangement
provided for in the December 2 contract. Since the Respondent
PASA, whom we have found to be an employer within the meaning
of the Act, shares responsibility for that unlawful arrangement, by
virtue of its execution of the December 2 contract on behalf of the
Respondents Alaska and American Mail, and other member com-
panies, it must also be held to share the responsibility for the results
reasonably to be anticipated.29 We therefore find that, in the cases
adverted to above, the Respondent PASA discriminated against em-
ployees in violation of Section 8 (a) (3) and 8 (a) (1) of the Act.
As to the Respondent PMA, it has already been shown that that
Respondent came into existence after the alleged acts of discrimina-
tion in this case. In view thereof, and as the Respondent PMA as-
sumed the rights, properties, debts, and liabilities of the Respondent
PASA, we believe that, without attributing a violation of these sec-
tions of the Act to Respondent PMA, we can fully effectuate the poli-
cies of the Act by merely requiring the Respondent PMA,.in addition
to Respondent PASA, to remedy the unfair labor practices attrib-
utable to the Respondent PASA.30
For the same reasons which prompted our finding that the Respond..
ent Union illegally caused the Respondent Alaska and the Respondent
American Mail to discriminate against the employees in question, we
find that the Respondent Union caused the Respondent PASA to dis-
criminate against them, in violation of Section 8 (b) (2) and 8 (b)
(1) (A) of the Act.
28
Unlike the Trial Examiner , we find it unnecesary to decide whether the result would
have been the same had the application been made on an all or none" basis.
29 Waterfront Employers of Washington , 98 NLRB 284 ; cf. Paul W. Speer, Inc., 98
NLRB 212. -
11 Autopart Manufacturing Company, 91 NLRB 80.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 601
The Remedy
Having found that the Respondents engaged in the unfair labor
practices set forth above, we shall order that they cease and desist
therefrom and that they take certain affirmative action designed to
effectuate the policies of the Act.
1. We have found that the Respondent Alaska and the Respondent
PASA discriminated against the c'Qmplainants named in Appendix A
and Appendix B hereto on one or more occasions, and that the Re-
spondent American Mail and the Respondent PASA discriminated
against Thomas J. Howard. We have also found that the Respondent
Union caused such discrimination. We shall order that the Respond-
ent American Mail offer Howard, and that the Respondent Alaska
offer the complainants named in Appendix B, except Campbell,
Theusen, Responte, Siebert, Paige, Makemson, Bailey, and Lantz, who
are discussed separately herein, immediate employment in the respec-
tive positions previously applied for and discriminatorily denied
them, or in positions substantially equivalent thereto, without preju-
dice to their seniority and other rights and privileges. We shall also
order that the Respondent Alaska offer the complainants named in
Appendix A, except Campbell and Responte, immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges 31
If such employment is not immediately available for all the complain-
ants, those employees for whom no employment is available shall be
placed on a preferential hiring list, with priority in accordance with
a system of seniority or other nondiscriminatory practice heretofore
applied by the Respondents in the conduct of their business, and shall
thereafter be offered such employment as vacancies arise and before
other persons are hired for such work. We shall also order that the
Respondent American Mail, the Respondents PASA and PMA, and
the Respondent Union jointly and severally make whole Howard, and
that the Respondent Alaska, the Respondents PASA and PMA, and
the Respondent Union jointly and severally make whole the complain-
ants named in Appendix A and Appendix B, except the afore-men-
tioned complainants whose cases are separately treated, for any loss of
pay suffered as a result of the discrimination against them by pay-
ment to each of them of a sum of money equal to what his normal net
n By our Order herein, we do not mean to imply that the Respondent Alaska is required
to meet all the conditions which some of the complainants testified must exist before they
will go to work for it
we reject the contention that the announcement made by the Respondent Alaska at the
bearing, that it was prepared to give application for employment "bona fide consideration
without reference to the preference provisions of the agreement of December 2, 1948,"
relieved it of any duty to- offer employment to, or make whole, any of the complainants
who did not respond thereto.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages would be to the date of the offer of employment, or placement
on such preferential list.
The back pay shall be computed in accordance with the formula
promulgated in F. W. Woolworth Company, 90 NLRB 289, and the
Respondents Alaska, American Mail, PASA, and PMA, and each of
them, shall make available to the Board, upon request, all records
pertinent to any analysis of the amounts of back pay due. In the
cases of those complainants for whom work was not available at the
time of their applications for employment, the back pay shall be com-
puted from the time when work for them became available, and no
complainant who was unable or unwilling to accept employment at
such time shall be entitled to back pay. Swinerton and Walberg
Company, supra.
Because the Trial Examiner did not hold the Respondent PASA
responsible for the discriminatory practices against the complainants,
or recommend that it and the Respondent PMA, together with the
Respondent Alaska, the Respondent American Mail, and the Respond-
ent Union, make the complainants whole for the consequences of such
discrimination, we shall not hold the Respondents PASA and PMA
accountable for any back pay which accrued to the complainants
during the period between the issuance of the Intermediate Report
and our Decision and Order. Cf. Utah Construction Company, supra.
In addition, we shall direct that the Respondent Union, in writing,
notify the Respondent American Mail, and furnish copies to the
employee involved, that it has no objection to the employment of
Thomas J. Howard, and, further, that it notify the Respondent
Alaska, and furnish copies to the individuals involved, that it has no
objection to the employment of the employees named in Appendixes
A and B hereto, except Campbell, Responte, Theusen, Siebert, Paige,
Bailey, Makemson, and Lantz. (The Hunkin-Conkey Construction
Company, supra.) The Respondent Union shall not be liable for any
back pay accruing after 5 days from the date such notices are given.
Absent such notification, the Respondent Union shall remain jointly
and severally liable with the Respondents Alaska, American Mail,
PASA, and PMA, as set forth above, for all the back pay that may
accrue.
We shall also direct that the Respondent Union, in writing, notify
Alaska Fishermen's Union, and furnish copies to the employees in-
volved, that it has no objection to the clearance for -employment of
those individuals on the April 11, 1949, blacklist.
Because of Green's testimony at the hearing that he would not ac-
cept a job with the Respondent Alaska unless the ship's entire crew
was made up of PMSU members, the Trial Examiner did not recom-
mend that the Respondent Alaska make an offer of employment to
PACIFIC- AMERICAN SHIPOWNERS ASSOCIATION 603
Green, a discriminatee herein. In this connection , the Respondent
Companies point to the testimony of other complainants in question
as to their unwillingness to go to work for the Respondent Alaska
unless certain conditions obtained . They argue that those com-
plainants, like Green , should also be denied the benefit of the normal
remedy applied in cases of this type. However , none of the com-
plainants , including Green , has taken the position that he would on
any terms refuse employment with the Respondent Alaska, and no
offer of employment has ever been tendered and refused. Until they
are called upon to make an election in the face of an actual offer of
employment, we believe that the policies of the Act will be effectuated
if the Respondent Alaska, the Respondents PASA and PMA, and
the Respondent Union are required to assume full responsibility for
the consequences of the discrimination against the complainants, and
we shall require the usual offer of employment and make the usual
back-pay award . 32 In Green 's case, however, we shall abate the
back pay which accrued during the period between the issuance of
the Intermediate Report and this Decision and Order.
The Respondent Companies contend that , because Campbell and
Responte refused offers of employment made them by the Respondent
Alaska during the hearing, neither complainant is entitled to an.order
requiring the Respondent Alaska to offer him employment, or an
award of back pay for period following his rejection of the employ-
ment offer. As already indicated , we agree with this contention.
With respect to Campbell , the record shows that on about December
12, 1949, he was offered a job by the Respondent Alaska , pursuant to
his request for employment with it, which 'he rejected . The record
contains no explanation by Campbell for his conduct on this occasion.
As to Responte, the critical facts show that on about November 29,
1949, he asked the Respondent Alaska for a B/R waiter 's job on the
Denali and then, upon being offered the job , turned it down. Although
Responte testified at the hearing that he was unable to accept the job
because of certain physical disabilities , his testimony in that connec-
tion was contradictory and wholly unconvincing . Under all the
circumstances , including the valid offers of employment made to
Campbell and Responte , and the absence of a satisfactory reason for
their rejection , we do not believe that it will effectuate the policies of
the Act to require the Respondent Alaska to again offer employment
to Campbell and Responte . However, we shall order that each of
them be made whole for any loss of pay suffered , by reason of the
discrimination against him, up to the time the aforementioned offer
of employment was rejected by him.
32 Oklahoma Transportation Company, 50 NLRB 907, enfd. 140 F. 2d 509 (C. A. 5).
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bailey, Makemson2, and Paige, in response to job offers made by
the Respondent Alaska, reported for work on the Denali on December
1611949. . Shortly after their arrival on the ship, Bailey was assaulted
by a person not identified in the record. This assault was reported
to the second steward in charge at the time, who promised to "fix"
or "get this thing straightened out.". In the meantime, after being
threatened with physical harm by another person whose identity is
not disclosed by the record, the three complainants left the ship. They
then advised the Respondent Alaska of what had happened, and
thereafter refused to return to the ship.
Lantz applied for, and was offered, a job on the Coastal Monarch
by the Respondent Alaska. Upon reporting for work in the ship's
galley on December 15,1949, he found the chief cook 33 to be extremely
hostile toward him. Lantz reported this fact to Jones, port steward
for the Respondent Alaska, who promised to look into the matter.
Later the same day, Lantz learned that Jones had visited the ship.
However, without again communicating with Jones, Lantz then left
the Coastal Monarch because of the chief cook's antagonistic attitude.
It is clear from the foregoing that the Respondent Alaska in good
faith made a valid offer of employment to Bailey, Makemson, Paige,
and Lantz, which the complainants accepted, and then quit for reasons
not attributable to the Respondent Alaska, and without affording
the Respondent Alaska an opportunity to correct the conditions
unsatisfactory to them. In view thereof, we shall require only that
each of them be made whole for any loss of pay suffered, by reason
of the discrimination against him, up to the date of his last employ-
ment referred to above with the Respondent Alaska.
As Siebert died in May 1949, we shall merely require that his per-
sonal representatives be made whole for any loss of pay, or other
benefits, the complain4nt may have suffered, by reason of the discrimi-
nation against him, from the date of such discrimination to the date
when he became physically unable to work.
About 3 weeks before December 1, 1949, the date he testified at
the hearing, Theusen started a poultry business. Approximately
2 weeks after entering into that business, he advised the Respondent
Alaska that he would not accept employment with it "at the present
time." And, at the hearing, Theusen took the position that "under
present circumstances right now I would not consider it probably to
the best well being of myself" to go to sea. In view of these facts,
and Theusen's additional testimony that on January 5, 1949, the date
his application for employment was discriminatorily rejected, he
"would have gone on any job that . . . [he] could have gotten," we
as It is not contended , nor does the record establish , that this individual was a supervisor
within the meaning of the Act.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 605
find that, because of his poultry business, Theusen has abandoned
any desire to go to work for the Respondent Alaska. We shall there-
fore merely order that he be made whole for any loss of pay suffered
by reason of the discrimination against him from the date of such
discrimination to the date on which he communicated his unwilling-
ness to work for the Respondent Alaska.
Contrary to the Respondents, the fact that complainants may have
participated in the strike called by the Respondent Union in Septem-
ber 1948, or may have, as members of PMSU, acquiesced in PMSU's
hiring hall system, does not, in view of our findings above, bar such a
remedy as we have employed herein.
The Respondents contend that they were not allowed an opportunity
at the hearing to introduce certain additional evidence bearing on
the nature of the remedial order to be utilized with respect to the
discriminatees. We shall not, however, require any additional evi-
dence at this time, inasmuch as the parties may be able amicably to
adjust this entire matter when compliance with our Order is under-
taken. This is without prejudice to the right of the Respondents,
in the event agreement is not reached, to apply for leave to adduce
such additional evidence as is relevant,34
2. We have found that, by reason of the December 2 contract itself,
the Respondent Companies violated Section 8 (a) (3), 8 (a) (2),
and 8 (a) (1) of the Act, and that the Respondent Union thereby
violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
We shall therefore order that the Respondent Union and the Respond-
ent Companies cease and desist from giving effect to the contract, or
any modification, extension, supplement, or renewal thereof, unless
and until the Respondent Union has been certified by the Board.
Nothing in our Order, however, shall be deemed to require Respond-
ent Companies to vary or abandon any substantive provisions of such
contract, or to prejudice the assertion by employees of any rights
they may have acquired thereunder. We shall also order the Respond-
ent Companies to withdraw and withhold all recognition from the
Respondent Union unless and until the Respondent Union has been
certified by the Board.
The Respondent Union contends that it would not effectuate the
policies of the Act to enter an order including the above provisions.
In support of this 'contention, the Respondent Union claims that on
August 18, 1950, after the issuance in July 1950, of the Board's deci-
sion in National Union of Maurine Cooks and Stewards, the Decem-
ber 2 contract was supplemented so as to render it legal in its entirety,
and the Board, after being advised of that fact, and the Respondent
" Berkshire Knitting Mills, 46 NLRB 955, enfd as mod. 139 F . 2d 134 ( C. A. 3), cert.
den 322 U. S 747; Detroit Gasket and Manufacturing Company, 78 NLRB 670.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's compliance with the other affirmative action required by that
decision, held the Respondent Union to be in complete compliance
with the requirements of the order in the afore-mentioned case 36
It is plain that the Respondent Union's argument in the foregoing
connection overlooks the crucial fact that, unlike the former case, the
complaint here alleged and the Trial Examiner found, as do we, that
the Respondent Companies, on acount of the December 2 contract,
contributed illegal support to the Respondent Union, in violation of
the Respondent Companies, on account of the December 2 contract,
not only of the presence of the hiring provisions which go beyond the
statute, but in the numerous incidents detailed above of enforcement
of the illegal contract. It would plainly not effectuate the policies of
the Act to permit the Respondent Union to continue to enjoy a repre-
sentative status which it has strengthened by virtue of the Respond-
ent Companies' illegal support.36 This being so, it is equally clear
that here the December 2 contract, even as supplemented, must be
canceled in its entirety.37
3. In view of our finding that the Respondent PASA, the Re-
spondent American Mail, and the Respondent Alaska violated the
Act not only by entering into' and performing the illegal agreement,
but by discriminating against specified applicants for employment,
we shall order that those Respondents, and the Respondent PMA
(successor to the Respondent PASA), cease and desist not only from
the unfair labor practices found, but also from in any other manner
interfering with, restraining, or coercing employees in the exercise
of the rights guaranteed by Section 7 of the Act.38 For the same
reason, a correspondingly broad order shall be entered against the
Respondent Union.
As to the Respondent P & T, we have found that it violated the
Act solely by agreeing to the illegal contract. The allegation in the
complaint that it discriminated against certain named individuals was
dismissed by the Trial Examiner, and no exceptions were taken to
the dismissal. In these circumstances, we believe that the issuance
of a narrow order against the Respondent P & T will effectuate the
policies of the Act.
351n that case , wherein the Respondent Union alone was a party respondent and the
legality of the identical contract involved in the instant case was in issue, the Respondent
Union was ordered , inter alia, to cease and desist from giving effect to the contract's
illegal provisions.
36 Julius Resnick, Inc., supra.
87 See Salant ,f Salant, Inc., 88 NLRB 816, where a similar remedy was employed even
though the illegal union-security clause of the contract there in question had, prior to the
Board's decision in the case , been eliminated from . the contract.
As we have assumed for purposes of this decision the existence of the facts which the
Respondent Union seeks to prove in a, reopened hearing, and found them to be without
controlling significance , we hereby deny the Respondent Union's motion to remand for that
purpose
ss Dell E. Webb Construction Company, supra.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 607
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent, Pacific American Shipowners Association, and
its successor and assign, the Respondent Pacific Maritime Association,
their officers, agents, successors, and assigns, shall:
a. Cease and desist from :
(1) Recognizing National Union of Marine Cooks and Stewards,
or any successor thereto, as the representative of any employees
covered by the December 2, 1948, contract, and any supplements or
amendments thereof, for the purposes of dealing with them concern-
ing grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, unless and until said
organization shall have been certified by the Board.
(2) Performing or giving effect to their contract of December 2,
1948, with National Union of Marine Cooks and Stewards, or to any
modification, extension, supplement, or renewal therof, or to any other
contract, agreement, or understanding affecting such employees en-
tered into with said organization relating to grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions
of employment, unless and until said organization shall have been
certified by the Board.
(3) Entering into, renewing, or enforcing any agreement with any
labor organization which expressely or in its performance requires
membership in any labor organization or prevents its members from
securing or retaining employees on a nondiscriminatory basis, except
to the extent authorized by Section 8 (a) (3) of the Act.
(4) Encouraging membership in National Union of Marine Cooks
and Stewards, or any other labor organization of the employees of
their members, or discouraging membership in Pacific Marine Stew-
ards Union, AFL, or any other labor organization of the employees
of their members, by discriminating in respect to the hire or tenure
of employment or any term or condition of employment of any em-
ployees (including applicants for employment) of its members,
except to the extent authorized by Section 8 (a) (3) of the Act.
(5) In any other manner interfering with, restraining, or coercing
employees of their members in the exercise of the rights guaranteed
them in Section 7 of the Act, or the right to refrain therefrom, except
to the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Withdraw and withhold all recognition from National Union
of Marine Cooks and Stewards as the representative of any of the
employees covered by the December 2, 1948, contract, and any supple-
ments or amendments thereof, for the purposes of dealing with them
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until said
organization shall have been certified by the Board.
(2) Post at their respective offices copies of the notice attached
hereto and marked "Appendix D." 39 Copies of said notices, to be
furnished by the Regional Director for the Nineteenth Region, shall,
after being duly signed by their respective representatives, be posted
by the Respondents and each of the respondent Employers immedi-
ately upon receipt thereof, and be maintained by them for a period of
,sixty (60) consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to the employees of their members are
customarily posted. Reasonable steps shall be taken by the Respond-
ents to insure that said notices are not altered, defaced, or covered
by any other material.
(3) Notify the Regional Director for the Nineteenth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps they
have taken to comply herewith.
II. The Respondent, Pope & Talbot, Inc., its officers, agents, succes-
sors, and assigns, shall :
a. Cease and desist from :
(1) Recognizing National Union of Marine Cooks and Stewards,
or any successor thereto, as the representative of any of its employees
covered by the December 2, 1948, contract, and any supplements or
amendments thereof, for the purposes of dealing with it concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said organization
shall have been certified by the Board.
(2) Performing or giving effect to its contract of December 2, 1948,
with National Union of Marine Cooks and Stewards, or to any other
contract, agreement, or understanding affecting such employees entered
into with said organization relating to grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment, unless and until said organization shall have been certified
by the Board.
(3) Entering into, renewing, or enforcing any agreement with any
labor organization which expressly or in its performance requires mem-
bership in any labor organization or prevents it from securing or
39 In the event that this Order or any Order herein 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."
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 609
retaining employees on a nondiscriminatory basis, except to the extent
authorized by Section 8 (a) (3) of the Act.
(4) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed them
by Section 7 of the Act, or the right to refrain therefrom, except to
the extent that such right may be effected 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 National Union
of Marine Cooks and Stewards as the representative of any of its em-
ployees covered by the December 2, 1948, contract, and any supplements
or amendments thereof, for the purposes of dealing with it concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until *said organization
shall have been certified by the Board.
(2) Post at its offices and in the stewards department of all vessels
operated by it copies of the notice attached hereto and marked "Appen-
dix E." Copies of said notices, to be furnished by the Regional Di-
rector for the Nineteenth Region, shall, after being duly signed by a
duly authorized officer or agent, be posted by it immediately upon
receipt thereof, and be maintained for a period of sixty (60) consecu-
tive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(3) Notify the Regional Director for the Nineteenth Region, in writ-
ing, within ten (10) days from the' date of this Order, what steps it
has taken to comply herewith.
III. The Respondent, American Mail Line, Ltd., its officers, agents,
successors, and assigns, shall :
a. Cease and desist from :
(1) Recognizing National Union of Marine Cooks and Stewards,
or any successor thereto, as the representative of any of its employees
covered by the December 2, 1948, contract, and any supplements or
amendments thereof, for the purposes of dealing with it concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said organization
shall have been certified by the Board.
(2) Performing or giving effect to its contract of December 2, 1948,
with National Union of Marine Cooks and Stewards, or to any modifi-
cation, extension, supplement, or renewal thereof, or to any other con-
tract, agreement, or understanding affecting such employees entered
,610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into with said organization relating to grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment, unless and until said organization shall have been certified
by the Board.
(3) Entering into, renewing, or enforcing any agreement with any
labor organization which expressly or in its performance requires mem-
bership in any labor organization or prevents it from securing or
retaining employees on a nondiscriminatory basis, except to the extent
authorized by Section 8 (a) (3) of the Act.
(4) Encouraging membership in National Union of Marine Cooks
and Stewards, or any other labor organization of its employees, or
discouraging membership in Pacific Marine Stewards Union, AFL,
or any other labor organization of its employees, by discriminating in
respect to the hire or tenure of employment or any term or condition
of employment of any of its employees or applicants for employment,
except to the extent authorized by Section 8 (a) (3) of the Act.
(5) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed them by Section
7 of the Act, or the right to refrain therefrom, except to the extent
that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized 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 National Union
of Marine Cooks and Stewards as the representative of any of its
employees covered by the December 2, 1948, contract, and any sup-
plements or amendments thereof, for the purposes of dealing with it
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until said
organization shall have been certified by the Board.
(2) Offer to Thomas J. Howard immediate employment in the
position previously applied for and discriminatorily denied him or a
substantially equivalent position, without prejudice to his seniority or
other rights and privileges and, if no such positions are presently
available, place him upon a preferential hiring list and thereafter offer
him employment as it becomes available, in the manner provided for
in the section entitled "The Remedy."
(3) Post at its offices and in the stewards department of all vessels
-operated by it copies of the notice attached hereto and marked "Ap-
pendix E." Copies of said notice, to be furnished by the Regional Di-
rector for the Nineteenth Region, shall, after being duly signed by a
duly authorized officer or agent, be posted by it immediately upon
:receipt thereof, and be maintained by it for a period of sixty (60)
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 611
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(4) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date' of this Order, what steps
they have taken to comply herewith.
IV. The Respondent, Alaska Steamship Company, its officers,
agents, successors, and assigns, shall :
a. Cease and desist from :
(1) Recognizing National Union of Marine Cooks and Stewards,
or any successor thereto, as the representative of any of its employees
covered by the December 2, 1948, contract, and any supplements or
renewals thereof, for the purposes of dealing with it concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said organization
shall have been certified by the Board.
(2) Performing or giving effect to its contract of December 2, 1948,
within National Union of Marine Cooks and Stewards, or to any
modification, extension, supplement, or renewal thereof, or to any
other contract, agreement, or understanding affecting such employees
entered into with said organization relating to grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions
of employment, unless and until said organization shall have been
certified by the Board.
(3) Entering into, renewing, or enforcing any agreement with any
labor organization which expressly or in its performance requires
membership in any labor organization or prevents it from securing or
retaining employees on a nondiscriminatory basis, except to the extent
authorized by Section 8 (a) (3) of the Act.
(4) Encouraging membership in National Union of Marine Cooks
and Stewards, or any other labor organization of its employees, or
discouraging membership in Pacific Marine Stewards Union, AFL, or
any other labor organization of its employees, by discriminating in
respect to the hire or tenure of employment or any term or condition
of employment of any of its employees or applicants for employment,
except to the extent authorized by Section 8 (a) (3) of the Act.
(5) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed them by Section
7 of the Act, or the right to refrain therefrom, except to the extent
that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized by
Section 8 (a) (3) of the Act.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Withdraw and withhold all recognition from National Union
of Marine Cooks and Stewards as the representative of any of its
employees covered by the December 2, 1948, contract, and any supple-
ments or renewals thereof, for the purposes of dealing with it concern-
ing grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until said
organization shall have been certified by the Board.
(2) Offer to all the employees named in Appendix A hereto, except
Campbell and Responte, immediate and full reinstatement to their
former or substantially equivalent positions, and to all the employees
named in Appendix B hereto, except Campbell, Theusen, Responte,
Siebert, Paige, Makemson, Bailey, and Lantz, immediate employment
in the respective positions previously applied for and discriminatorily
denied them, or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges; and, if no such posi-
tions are presently available, place them upon a preferential hiring
list and thereafter offer them employment as it becomes available, in
the manner provided for in the section entitled "The Remedy."
(3) Post at its offices and in the stewards department of all vessels
operated by it copies of the notice attached hereto and marked "Ap-
pendix F." Copies of said notice, to be furnished by the Regional
Director for the Nineteenth Region, shall, after being duly signed by a
duly authorized officer or agent, be posted by it immediately upon
receipt thereof, and be maintained by it for a period of 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(4) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
V. The Respondent, National Union of Marine Cooks and Stewards,
its officers, representatives, agents, successors, and assigns, shall:
a. Cease and desist from :
(1) Performing or giving effect to its contract of December 2, 1948,
with Pacific American Shipowners Association, and its employer
members or successors, or to any modification, extension, supplement,
or renewal thereof, or to any other contract, agreement, or under-
standing affecting employees covered by the aforementioned contract
entered into with said employers relating to grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 613
employment, unless and until it shall have been certified by the
Board.
(2) Causing or attempting to cause the afore-mentioned employers,
their officers, agents, successors, or assigns, to discriminate against
their employees or applicants for employment in violation of Section
8 (a) (3) of the Act.
(3) In any other manner restraining or coercing employees of the
aforementioned employers, their successors, or assigns, in the exercise
of the rights guaranteed them in Section 7 of the Act, or the right
to refrain therefrom, 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 in 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) Notify American Mail Line Ltd., in writing, and furnish
copies to the employee involved, that it has no objection to the em-
ployment of Thomas J. Howard, and notify Alaska Steamship Com-
pany in writing and furnish copies to the individuals involved, that
it has no objection to the employment of the employees named in
Appendix A and Appendix B hereto, except Campbell, Responte,
Theusen, Siebert, Paige, Bailey, Makemson, and Lantz.
(2) Notify Alaska Fishermen's Union, in writing, and furnish
copies to the employees involved, that it has no objection to the clear-
ance for employment of the individuals on its April 11, 1949, blacklist.
(3) Post in conspicuous places at its hiring halls, and all places
where notices to members are customarily posted, copies of the notice
attached hereto and marked "Appendix G." Copies of said notice,
to be furnished by the Regional Director for the Nineteenth Region,
shall, after being duly signed by a duly authorized officer or agent,
be posted by it immediately upon receipt thereof, and maintained
for a period of at least sixty (60) consecutive days thereafter. Rea-
sonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(4) Mail to the Regional Director for the Nineteenth Region signed
copies of the notice attached hereto and marked "Appendix G," for
posting, the members of Pacific American Shipowners Association
and Pacific Maritime Association who are parties to the December 2.
1948, contract willing, at their respective offices and in the stewards
department of all vessels operated by them, in places where notices
to employees are customarily posted. The notices shall be posted
for a period of sixty (60) consecutive days thereafter. Copies of
said notices, to be furnished by the Regional Director for the Nine-
998666-vol. 98-53-40
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
teenth Region, shall after being signed as provided in paragraph 4
(b) (3) of this Order, be forthwith returned to the Regional Director
for said posting.
(5) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
5. Respondents Pacific American Shipowners Association and
Pacific Maritime Association, their officers, agents, successors, and
assigns, Alaska Steamship Company, its officers, agents, successors,
and assigns, and National Union of Marine Cooks and Stewards, its
officers, representatives, agents, successors, and assigns, shall jointly
and severally make whole the employees named in Appendix A and
Appendix B attached hereto, except Siebert, for any loss of pay they
may have suffered because of the discrimination against them, in the
manner set forth in the section entitled "The Remedy," above. The
afore-mentioned Respondents shall also jointly and severally make
whole the personal representatives of Siebert for any loss of pay,
bonuses, emoluments and insurance or other death benefits he may
have suffered because of the discrimination against him, in the manner
set forth in the section entitled "The Remedy," above. In addition,
the Respondent American Mail Line, Ltd., its officers, agents, succes-
sors, and assigns, and the afore-mentioned Respondents, except Alaska
Steamship Company, shall jointly and severally make whole Thomas
J. Howard for any loss of pay he may have suffered because of the dis-
crimination against him by the Respondent American Mail. Upon
request, the afore-mentioned employers shall make available to the
Board or its agents, for examination and copying, all payroll records
and reports, and all other records necessary to analyze the amount of
back pay due and the right to employment under this Order.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges viola-
tions of the Act different from those found in this Decision and Order,
be, and it hereby is, dismissed.
MEMBER MURDOCK, dissenting in part :
Although I am in agreement with my colleagues as to the proper
disposition of a major portion of the issues in this case, I believe that
the majority opinion, is mistaken in several instances. My primary
concern is with what I regard as an erroneous interpretation of the
statute and Board precedent relied upon in the majority's dismissal
of the complaint with respect to eight applicants for supervisory posi-
tions whose names were included in the list of 92 persons on whose
behalf Rotan applied for employment with Respondent Alaska on
March 31, 1949.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 615
The majority opinion bases its dismissal of the complaint as to
these eight individuals on the ground they, as applicants for super-
visory positions, are not within the statutory definition of "employees"
and are thus outside the protection of the Act. It is tacitly conceded
by the majority that if such applicants were "employees" within the
definition of the Act, the complaint would be well founded as
to their denial of employment. As noted in the majority opinion,
the March 31, 1949, application, insofar is it covered names of former.
employees of Respondent Alaska, was for employment in the job
classification last held. As these eight men had been chief stewards
in their last employment with Respondent Alaska, as to them the
application was necessarily specified to be for employment in thab
supervisory job classification, 40 but the application was not limited
to any particular vessel. There can be no question with respect to
most of these eight individuals, that there was no existing employment
relationship with Respondent Alaska at the time of the March 31
application, nor is it contended by* the majority that there was.
Lattish and Heard in fact were last employed by Respondent Alaska
in 1945, Siewick in 1947, and ships on which they held berths had not
even been operated by Respondent Alaska since 1947. Whaley was
last employed in June 1948. (The strike had begun in September
and ended in December 1948.)' Although not treating these
men other than as members of the working class generally, the
position of the majority is simply that individuals " seeking" as well
as those "holding" supervisory jobs are excluded from the definition
of "employees" in the Act, and hence may be discriminated against
with impunity. This position is not in accord with the terms of
the Act or with the Board's prior interpretation made thereunder.
In defining the term "employee," Section 2 (3) of the amended Act
excludes from that classification "any individual employed as a super-
visor." (Emphasis added.) Section 2 (11) of the Act, in turn,
defines the term "supervisor" as "any individual having authority,
in the interest of the employer . . ." (Emphasis added). It
.seems patent, therefore, that the Act excludes as supervisors, only'
those individuals presently employed by, and possessing authority
to act for, a particular employer. This conclusion, dictated by the
40 Although the application was so worded , realistically I believe these men would have
accepted nonsupervisory jobs had they been offered them The record indicated that there
Is considerable fluctuation between supervisory and nonsupervisory jobs in the steward's
department . A man may ship as a chief steward on one vessel and in a nonsupervisory
position on his next ship Note that six of these same eight individuals were included
in Rotan's May 7, 1949, application for employment in rank -and-file jobs.
43 Baker, Lande , Martin and Krause had been in the employ of Respondent Alaska at the
beginning of the strike . However, the Respondent never operated the ships again on
which Baker and Lande had berthed Martin's last ship had been outfitted with a new
crew and sailed before the March 31, 1949, application.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear wording of the statute, was adopted by the Board in the Briggs
Manufacturing Company case,42 where it was held that an applicant
for a supervisory position whose last employment with the company
had been as a supervisor was a member of the-working class and "did
not acquire the status of a supervisory employee of the respondent
until he was hired." The majority opinion seeks to distinguish
that case on the ground that it involved a violation which took place
before the statute 'vas amended to exclude supervisors' from the
definition of "employees." However, the Board there took cogni-
zance of the Employer's contention, that as supervisors are not "em-
ployees" under the amended Act, which was in effect when the Board
considered and decided the case, Quatro as an applicant for a super-
visory position should not be accorded the protection of the Act
and the case should be dismissed. The Board chose to dispose of
the contention first on the ground that an applicant for a supervisory
job is not a supervisor. It was only on a "moreover, even assuming
arguendo" supervisory status at the time of application basis that
the Board adverted to the fact that the discrimination took place
under the Wagner Act when supervisors were "employees."
In the instant case, there, is no question that the applicants were
not employed as supervisors and did not possess authority to act in
the interest of the Respondent Alaska at the time the discrimination
against them took place. As applicants they are not and were not
supervisors as that term is defined in the Act but, rather, members of
the working class entitled to the statute's protection against a dis-
criminatory denial of employment. The majority decision, indeed,
does not accord the status of supervisors to these men but states that
they, as applicants, were at the "very threshold" of assuming that
authority. The statute contains no definition or justification for the
establishment of this third nebulous category somewhere between the
status of supervisor and "employee." To create it and then extend
by administrative fiat the statutory exemption accorded supervisors
to such individuals is inconsistent with the plain language of the
statute. It is likewise contrary to the well established principle of .
statutory construction that exemptions from remedial legislation shall
be constrictly construed. Furthermore, I believe that Congress' action
emphasizing its intent not to interfere with the natural right of super-
visors to join unions, by providing in Section 14 (a) of the Act that
"Nothing herein shall prohibit any individual employed as a super-
visor from becoming or remaining a member of a labor organiza-
tion ..." is not without some significance. If Congress was thus moved
to give explicit recognition t6 the natural right of supervisors to joie
42 75 NLRB 569.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 617
unions (even while withdrawing legal sanctions to protect the exercise
of such a right), I cannot believe that Congress would have intended
to deny to persons who are undeniably within the definition of "em-
ployees" under the Act, the protection accorded "employees" against
discrimination in their right to join or refrain from joining unions,
simply because such "employees" aspire to become supervisors 43
I would have thought that the doctrine announced today by the
majority-that an applicant for a supervisory job removes himself
from "employee" status and may be discriminated against as a super-
visor-would logically and necessarily include the case of a rank-and-
file employee who applies to his own employer for promotion to a
supervisory vacancy. This would mean the employer would be free
to tell the applicant that he had been rejected because the employer
doesn't like men who have been active union members for supervisors.
The seriously damaging and discouraging effect on union activity of
making employees aware that union activity will disqualify them
for promotion to supervisory levels is obvious. While I am therefore
relieved to know that the majority would abandon the doctrine of this
case as between a rank-and-file employee and his own employer. I
submit that such a result would be inconsistent with the principle
here laid down and predicated on distinctions heretofore rejected as
having no validity. It presupposes that applicants for supervisory
jobs who are presently employed are in a different position from those
who (as in this case) are not presently employed by the discriminating
employer, with respect to protection from discrimination in hire.
This is contrary to the consistent and long-established holding of the
Board and the courts, that the Act does not draw any distinction
between employees of a particular employer and members of the
working class in general (who are embraced in the definition of
"employee" in Section 2 (3) of the Act), with respect to protection
from discrimination in hire 44 The majority significantly fails to
point out any basis for such a distinction.
For the foregoing reasons I would find that the eight applicants for
supervisory positions on March 31, 1949, were "employees" under the
41I do not deem it necessary at this time to consider whether the status of applicants
for jobs as agricultural laborers or domestics , or for employment with a parent or spouse,
is the same or different from that of applicants for supervisory jobs. The Board did not
find it necessary to do so when it decided in the Briggs case that applicants for supervisory
jobs are not supervisors The fact that the majority has found it necessary to reach out
to prejudge such cases which are not now before us to provide a rationale for the result
reached ( added to one bit of legislative history of doubtful significance ), seems to me
merely to emphasize the dearth of substantial support for their establishment of this new
area of exemption
44 See Phelps Dodge Corp v. N. L. R. B., 313 U . S. 177; Briggs Manufactur ing Company,
75 NLRB 569 ; John Hancock Mutual Life Insurance Company, 92 NLRB 122, 133 , enforced
191 F. 2d 483 (C. A. D. C ).
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act and that the Respondent Alaska violated Section 8 (a) (3) by
discriminatorily denying them employment 45
I join with my colleagues in finding that the execution and enforce-
ment of the December 2, 1948, contract by the Respondent Union
constituted a violation of Section 8 (b). (1) (A) and Section 8 (b) (2)
because of its illegal preferential hiring provisions. The Trial Ex-
aminer found, and the Board unanimously agrees, that the distribu-
tion of a blacklist to the MCS branches was a facet of the enforcement
of that contract. It is further agreed that this distribution to the
MCS branches did not constitute a separate violation because it was
an integral part of conduct already found violative of the Act. The
distribution of the same blacklist to the AFU, it is also agreed, was
not a,violation of Section 8 (b) (2). The majority decision, however,
finds that the sending of the blacklist to AFU is a separate violation
of Section 8 (b) (1) (A). I must disagree with this last conclusion.
In my opinion, this action of the Respondent Union was clearly the
same type of effectuation of an illegal contract which we find not to
constitute a separate violation in the instance of the MCS branches.
On the other hand, it is elementary that the successful effectuation of
the contract when threatened. by the activity of dissident members
required an appeal to all sympathetic ears to refrain from supporting
such activity. The blacklist was motivated and executed as a method
of enforcing and implementing the contract. Accordingly, - an in-
trinsic part of conduct already found to conflict with Section 8 (b) (1)
(A) and Section 8 (b) (2), I do not believe it constitutes or merits
finding as a separate violation of the Act.
Finally, I do not believe the record or the majority opinion offers
substantial reasons for overruling the Trial Examiner's recommenda-
tions that the Respondent Alaska be required to offer employment to
Bailey, Makemson, Paige, Lantz, and Theusen.
Appendix A
John O. Baine
Edna M. Bausch
Robert D. Bessette
Carol E. Campbell
Alberto W. Charlesworth
John Childs
Joseph B. Cline
Howard W. Cooney
Dewey Al. Erlwein
Francis J. Forde
W. S. Francis
Robert C. Friend
41 Inasmuch as the majority of my colleagues do not agree with this conclusion, the
question as to the appropriate remedy for such a violation becomes academic. However, it
may be noted that the Board, in Inter-City Advertising Company/ of Greensboro , N. C., Inc.,
89 NLRB 1103 , reversed on other grounds , 190 F 2d 420 ( C A. 4) noted that "The Board
continues to have power under the amended Act , as it clearly had before its enactment,
to require the reinstatement with back pay of a supervisor [ discharged under certain
conditions ]." The power to order employment with back pay in the instant situation
would clearly also be present
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 619
Thomas C. Harris
Harley E. Krone
Louis Larsen
James Ralph Mann
Thomas C. McCaffrey
Hugh McIntyre
George J. O'Leary
Millard Paisley
John W. Patterson
George Resporite
Virgil J. Rogers
Clarence E. Rothaus
John W. Smoczyk
James M. Triana
0. Pedro Villabol
Appendix B
George Arnold
Alvin Bailey
John O. Baine
Herbert L. Baker
B. F. Barrett
Edna Bausch
Dale Becks
Don Bickford
Charles Birdsall
Elmer Blanes
G. C. Boettiger
Herman Bolst
Gerald Bosley
Carol E. Campbell
Alberto W. Charlesworth
John Childs
Burr D. Cline
Joseph B. Cline
Homer Cole
Howard W. Cooney
Harold S. Darling
George Davey
Harry Doucette
Eugene A. Douglas
H. Dean Douglas
Howard Dow
John R. Dyer
Dewey M. Erlwein
Francis J. Forde
Donald Foster
W. S. Francis
Robert C. Friend
William C. Game
Joseph Green
Thomas C. Harris
William Harris
George C. Heard
Fred Hempleman
Ernest Henry
Herbert Hill
Thomas Howard
William Jenkins
Robert E. Jewell
Arnold W. Johnson
Frank R. Johnson
Charles L. Johnson
Charles Johnston
A. L. Jones
Art D. King
Harold Krause
Harley E. Krone
Frank Lachica
William Lande
Percy Landrigan
Marvin, E. Lantz
Louis Larsen
Cyrus Lord
Paul Lund
Norman Maginn
A. L. Makemson
James Ralph Mann
A. McAlvey
Hugh McIntyre
Thomas McMannus
Marshall R. McMonagle
William B. Miller
C. C. Moody
Charles Mosher
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George J. O'Leary
Harold Paige
Bernard M. Paluck
John W. Patterson
Leroy Pierson
Frank C. Ponce
Clarence O. Reese
George Responte
Virgil J. Rogers
Jack Roper
Dan J. Rotan
Don L. Rotan
Charles E. Rothaus
Mathias Sabo
Henry Schuchard
Frank Schulpeck
Edward Siebert
John Siewick
Earnest Shearer
Albert Sirriani
George A. Smith
Leslie B. Smith
John W. Smoczyk
Fred M. Starks
Ralph J. Starnes
Jack Taylor
Lester E. Taft
Louis Thuesen
James M. Triana
Don W. Tyler
Daniel Varady
O. Pedro Villabol
Peter Wallrop
Lee Whaley
Appendix C
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify the employees of our members that :
WE WILL withdraw and withhold all recognition from the
NATIONAL UNION OF MARINE COOKS AND STEWARDS as the repre-
sentative of any employees covered by our December 2, 1948, con-
tract, or any supplements or amendments thereof, for the
purposes of dealing with us concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other con-
ditions of employment, unless and until said Union shall have
been certified by the National Labor Relations Board.
WE WILL cease performing or giving effect to our contract of
December 2, 1948, with said Union covering employees of our
members, or to any modification, extension, supplement, or re-
newal thereof, or to any other contract, agreement or understand-
ing affecting such employees entered into with said Union relat-
ing to grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until
said Union shall have been certified by the National Labor Rela-
tions Board.
WE WILL NOT otherwise interfere with the representation of
employees of our members through a labor organization of their
own choosing.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 621
WE WILL NOT enter into, renew, or enforce any agreement with
any labor organization which expressly, or in its performance,
requires membership in any labor organization or prevents our
members from securing or retaining employees on a nondiscrimi-
natory basis, except to the extent authorized by Section 8 (a) (3)
of the Act.
WE WILL NOT encourage membership in the above-named Union,
or in any other labor organization of the employees of our mem-
bers, or discourage membership in PACIFIC MARINE STEWARDS
UNION, AFL, or in any other labor organization of the employees
of our members, by discriminating in respect to the hire or tenure
of employment or any term or condition of employment of any
employees (including applicants for employment) of our mem-
bers, except to the extent authorized by Section 8 (a) (3) of the
Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees of our members in the exercise of the rights
guaranteed them by Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring member-
ship in a. labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL make whole the following named employees for any
loss of pay suffered as a. result of the discrimination against them :
George Arnold
Alvin Bailey
John 0. Baine
Herbert L. Baker
B. F. Barrett
Edna Bausch
Dale Becks
Robert D. Bessette
Don Bickford
Charles Birdsall
Elmer Blanes
G. C. Boettiger
Herman Bolst
Gerald Bosley
Carol E. Campbell
Alberto W. Charlesworth
John Childs
Burr D. Cline
Joseph B. Cline
Homer Cole
Howard W. Cooney
Harold S. Darling
George Davey
Harry Doucette
Eugene A. Douglas
H. Dean Douglas
Howard Dow
John R. Dyer
Dewey M. Erlwein
Francis J. Forde
Donald Foster
W. S. Francis
Robert C. Friend
William C. Game
Joseph Green
Thomas C. Harris
William Harris
George C. Heard
Fred Hemplemen
Ernest Henry
Herbert Hill
Thomas Howard
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Jenkins
Robert E. Jewell
Arnold W. Johnson
Frank R. Johnson
Charles L. Johnson
Charles Johnston
A. L. Jones
Art D. King
Harold Krause
Harley E. Krone
Frank Lachica
William Lande
Percy Landrigan
Marvin E. Lantz
Louis Larsen
Cyrus Lord
Paul Lund
Norman Maginn
A. L. Makemson
James Ralph Mann
A. McAlvey
Thomas C. McCaffrey
Hugh McIntyre
Thomas McMannus
Marshall R. McMonagle
William B. Miller
G. C. Moody
Charles Mosher
George J. O'Leary
Harold Paige
Millard Paisley
Bernard M. Paluck
John W. Patterson
Leroy Pierson
Frank C. Ponce'
Clarence O. Reese
George Responte
Virgil J. Rogers
Jack Roper
Dan J. Rotan
Don L. Rotan
Clarence E. Rothaus
Mathias Sabo
Henry Schuchard
Frank Schulpeck
John Siewick
Ernest Shearer
Albert Sirriani
George A. Smith
Leslie B. Smith
John W. Smoczyk
Fred M. Starks
Ralph J. Starnes
Jack Taylor
Lester E. Taft
Louis Theusen
James M. Triana
Don W. Tyler
Daniel Varady
0. Pedro Villabol
Peter Wallrop
Lee Whaley
WE WILL also make whole the personal representatives of Edward
Siebert for any loss of pay, bonuses, emoluments, and insurance or
other death benefits suffered as a result of the discrimination. All
employees of our members are free to become, remain, or refrain from
becoming or refraining, members in good standing of the above-named
union, or any other labor organization, except to the extent that such
right may be affected by an agreement in conformity with Section 8
(a) (3) of the Act.
--------------------------------
Employer.
By --------------------------------
(Representative ) ( Title)
Dated------------------
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 623
This notice must remain posted for sixty (60) days from the date
hereof , and must not be altered, defaced, or covered by any other
material.
Appendix D
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL withdraw and withhold all recognition from the
NATIONAL UNION OF MARINE COOKS AND STEWARDS as the repre-
sentative of and of our employees covered by our December 2,
1948, contract, or any supplements or amendments thereof, for
the purposes of dealing with us concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other con-
ditions of employment, unless and until said Union shall have been
certified by the National Labor Relations Board.
WE WILL cease performing or giving effect to our contract of
December 2, 1948, with said Union covering our employees, or to
any modification, extension, supplement or renewal thereof, or
to any other contract, agreement or understanding affecting such
employees entered into with said Union relating to grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until said Union shall have
been certified by the National Labor Relations Board.
WE WILL NOT otherwise interfere with the representation of our
employees through a labor organization of their own choosing.
WE WILL NOT enter into, renew, or enforce any agreement with
any labor organization which expressly or in its performance
requires membership in any labor organization or prevents us from
securing or retaining employees on a nondiscriminatory basis,
except to the extent authorized by Section 8 (a) (3) of the Act.
NE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them 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 condition of employment as author-
ized in Section 8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain
from becoming or remaining, members in good standing of
the above-named Union, or any other labor organization,
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except to the extent that such right may be affected by an
agreement in conformity with Section 8 (a) (3) of the Act.
POPE & TALBOT, INC.,
Employer.
By --------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
Appendix E
NOTICE TO ALL EMPLOYEES
'Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL withdraw and withhold all recognition from the
NATIONAL UNION OF MARINE COOKS AND STEWARDS as the repre-
sentative of any of our employees covered by our December 2,
1948, contract, or. any supplements or amendments thereof, for the
purposes of dealing with us concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other condi-
tions of employment, unless and until said Union shall have been
certified by the National Labor Relations Board.
WE WILL cease performing or giving effect to our contract of
December 2, 1948, with said Union covering our employees, or to
any modification, extension, supplement or renewal thereof, or to
any other contract, agreement or understanding affecting such
employees entered into with said Union relating to grievances,
labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment, unless and until said Union shall
have been certified by the National Labor Relations Board.
WE WILL NOT otherwise interfere with the representation of
our employees through a labor organization of their own choosing.
WE WILL NOT enter into, renew, or enforce any agreement with
any labor organization which expressly or in its performance re-
quires membership in any labor organization or prevents us from
securing or retaining employees on a nondiscriminatory basis,
except to the extent authorized by Section 8 (a) (3) of the Act.
WE WILL NOT encourage membership in the above-named union,
or in any other labor organization of our employees, or discourage
membership in the PACIFIC MARINE STEWARDS UNION, AFL,
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 625
or in any other labor organization of our employees, by
discriminating in regard to their hire or tenure of employment or
any term or condition of employment, except to the extent au-
thorized by Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere wish, restrain, or
coerce our employees in the exercise of the right guaranteed
them 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 condition of employment as authorized in
Section 8 (a) (3) of the Act.
WE WILL OFFER to Thomas J. Howard immediate employment
in the position previously applied for and discriminatorily denied
him, or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole
for any loss of pay suffered as a result of the discrimination. If
no such positions are presently available, we will place him upon
a preferential hiring list and thereafter offer him employment as
it becomes available and before other persons are hired for such
work.
All our employees are free to become, remain, or refrain from
becoming or remaining, members in good standing of the above-
named union, or any other labor organization, except to the extent
that such right may be affected by an agreement in conformity with
Section 8 (a) (3) of the Act.
AMERICAN MAIL LINE, LTD.,
Employer.
By -------------------------------
(Representative ) ( Title)
Date --------------------
This notice must remain posted for sixty (6Q) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
Appendix F
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL withdraw and withhold all recognition from the
NATIONAL UNION OF MARINE COOKS AND STEWARDS as the repre-
sentative of any of our employees covered by our December 2,
1948, contract, or any supplements or amendments thereof, for
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purposes of dealing with us concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other con-
ditions of employment, unless and until said Union shall have
been certified by the National Labor Relations Board.
WE W%L cease performing or giving effect to our contract of
December 2, 1948, with said Union covering our employees, or to
any modification, extension, supplement or renewal thereof, or
to any other contract, agreement or understanding affecting such
employees entered into with said Union relating to grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until said Union shall have
been certified by the National Labor Relations Board.
WE WILL NOT otherwise interfere with the representation of our
employees through a labor organization of their own choosing.
WE WILL NOT enter into, renew, or enforce any agreement with
any labor organization which expressly or in its performance
requires membership in any labor organization or prevents us
from securing or retaining employees on a nondiscriminatory
basis, except to the extent authorized by Section 8 (a) (3) of the
Act.
WE WILL NOT encourage membership in the above-named Union,
or in any other labor- organization of our employees, or discourage
membership in the PACIFIC MARINE STEWARDS UNION, or in any
other labor organization of our employees, by discriminating in
regard to their hire or,tenure of employment or any term or con-
dition of employment, except to the extent authorized by Section 8
(a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed them
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• condition of employment as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights and
privileges, and make them whole for any loss of pay suffered as a
result of the discrimination. If no such positions are presently
available, we will place them upon a preferential hiring list and
thereafter offer them employment as it becomes available and
before other persons are hired for such work.
John 0. Baine John Childs
Edna M. Bausch Joseph B. Cline
Robert D. Bessette Howard W. Cooney
Alberto W. Charlesworth Dewey M. Erlwein
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION
Francis J. Forde
W. S. Francis
Robert C. Friend
Thomas C. Harris
Harley E. Krone
Louis Larsen
James Ralph Mann
Thomas C. McCaffrey
Hugh McIntyre
627
George J. O'Leary
Millard Paisley
John W. Patterson
Virgil J. Rogers
Clarence E. Rothaus'
John W. Smoczyk
James M. Triana
0. Pedro Villabol
WE WILL. OFFER to the employees named below immediate em-
ployment in the respective positions previously applied for and
discriminatorily denied them, or in substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay suffered as
a result of the discrimination. If no such positions are presently
available, we will place them upon a preferential hiring list and
thereafter offer them employment as it becomes available and
before other persons are hired for such work.
George Arnold
Herbert L. Baker
John O. Baine
B. F. Barrett
Edna Bausch
Dale Becks
Don Bickford
Charles Birdsall
Elmer Blanes
G. C. Boettiger
Herman Bolst
Gerald Bosley
Alberto W. Charlesworth
John Childs
Burr D. Cline
Joseph B. Cline
Homer Cole
Howard W. Cooney
Harold S. Darling
George Davey
Harry Doucette
Eugene A. Douglas
H. Dean Douglas
Howard Dow
John R. Dyer
Dewey Al. Erlwein
Francis J. Forde
Donald Foster
W. S. Francis
Robert C. Friend
William C. Game
Joseph Green
Thomas C. Harris
William Harris
George C. Heard
Fred Hemplemen
Ernest Henry
Herbert Hill
Thomas Howard
William Jenkins
Robert E. Jewell
Arnold W. Johnson
Frank R. Johnson
Charles L. Johnson
Charles Johnston
A. L. Jones
Art D.-King
Harold Krause
Harley E. Krone
Frank Lachica
William Lande
Percy Landrigan
628 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
Louis Larsen
Cyrus Lord
Paul Lund
Norman Maginn
James Ralph Mann
A. McAlvey
Hugh McIntyre
Thomas McMannus
Marshall R. McMonagle
William B. Miller
G. C. Moody
Charles Mosher
George J. O'Leary
Bernard M. Paluck
John W. Patterson
Leroy Pierson
Frank C. Ponce
Clarence O. Reese
Virgil J. Rogers
Jack Roper
Dan J. Rotan
Don L. Rotan
Clarence E. Rothaus
Mathias Sabo
Henry Schuchard
Frank Schulpeck
John Siewick
Ernest Shearer
Albert Sirriani
George A. Smith
Leslie B. Smith
John W. Smoczyk
Fred M. Starks
Ralph J. Starnes
Jack Taylor
Lester E. Taft
James M. Triana
Don W. Tyler
Daniel Varady
0. Pedro Villabol
Peter Wallrop
Lee Whaley
WE WILL make whole the following named employees for any
loss of pay suffered as a result of the discrimination against them :
Alvin Bailey Harold Paige
Carol E. Campbell George Responte
Marvin E. Lantz Louis Theusen
A. L. Makemson
WE WILL also make whole the personal representatives of
Edward Siebert for any loss of pay, bonuses, emoluments, and
insurance or other death benefits suffered as a result of the dis-
crimination.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members in good standing of the above-named
union, or any other labor organization, except to the extent that such
right may be affected by an agreement in conformity with Section
8 (a) (3) of the Act.
ALASKA STEAMSHIP COMPANY,
Employer.
By ----------------------------------
(Representative ) (Title)
Date --------------------
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 629
This notice must remain posted for sixty (60) days from the date
hereof; and must not be altered, defaced or covered by any other
material.
Appendix G
NQTICE TO ALL MEMBERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL cease performing or giving effect to our contract of
December 2, 1948, with PACIFIC AMERICAN SHIPOWNERS ASSOCIA-
TION on behalf of its employer members or successors, or to any
modification; extension, supplement or renewal thereof, or to
any other contract, agreement, or understanding affecting em-'
ployees covered by the afore-mentioned contract entered into
with said companies relating to grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of em-
ployment, unless and until we shall have been certified by the
National Labor Relations Board.
WE WILL NOT cause or attempt to cause any of the afore-men-
tioned employers, their officers, agents, successors, or assigns to
discriminate against their employees or applicants for employ-
ment in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of any of the afore-mentioned employers, their successor or as-
signs, in the exercise of the rights guaranteed them by Section
7 of the Act, or the right to refrain therefrom, except to the extent
that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
WE WILL make whole the following named employees for any
loss of pay suffered because of the discrimination- against them:
George Arnold
Alvin Bailey
John O. Baine
Herbert L. Baker
B. F. Barrett
Edna Bausch
-Dale Becks .
Robert D. Bessette
Don Bickford
Charles Birdsall
Elmer Blanes
G. C. Boettiger
998666-vol . 98-53-41
Herman Bolst
Gerald Bosley,
Alberto Charlesworth
John Childs
Burr D. Cline
Joseph B. Cline
Homer Cole
Howard W. Cooney
Harold S. Darling -
George Davey
Harry Doucette -
Eugene A. Douglas
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. Dean Douglas
Howard Dow
John R. Dyer
Dewey M. Erlwein
Francis J. Forde
Donald Foster
W. S. Francis
Robert C. Friend
William C. Game
Joseph Green
Thomas C. Harris
William Harris
George C. Heard
Fred Hemplemen
Ernest Henry
Herbert Hill
Thomas Howard
William Jenkins
Robert E. Jewell
Arnold W. Johnson
Frank R. Johnson
Charles L. Johnson
Charles Johnston
A. L. Jones
Art D. King
Harold Krause
Harley E. Krone
Frank Lachica
William Lande
Percy Landrigan
Louis Larsen
Cyrus Lord
Paul Lund
Norman Maginn
James Ralph Mann
A. McAlvey
Thomas C. McCaffrey
Hugh McIntyre
Thomas McMannus
Marshall R. McMonagle
William B. Miller
C. C. Moody
Charles Mosher
George J. O'Leary
Millard Paisley
Bernard M. Paluck
John W. Patterson
Leroy Pierson
Frank C. Ponce
Clarence O. Reese
Virgil J. Rogers
Jack Roper
Dan J. Rotan
Don L. Rotan
Clarence E. Rothaus
Mathias Sabo
Henry Schuchard
Frank Schulpeck
John Siewick
Ernest Shearer
Albert Sirriani
George A. Smith
Leslie B. Smith
John W. Smoczyk
Fred M. Starks
Ralph J. Starnes
Jack Taylor
Lester E. Taft
James M. Triana
Don W. Tyler
Daniel Varady
0. Pedro Villabol
Peter Wallrop
Lee Whaley
WE HAVE no objection to the employment of the above-named
persons without discrimination because of their nonmembership
in our union or membership in other unions . We have given
Alaska Steamship Company notice to this effect.
WE HAVE no objection to the clearance for employment by
Alaska Fishermen 's Union of the employees named in our April
11, 1949, blacklist, without discrimination because of the em-
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 631
ployees' nonmembership in our union or membership in other
unions. We have given Alaska Fishermen's Union notice to this
effect.
WE WILL make whole the following named employees for any
loss of pay suffered as a result of the discrimination against them :
Alvin Bailey Harold Paige
Carol E. Campbell George Responte
Marvin E. Lantz Louis Thuesen
A. L. Makemson
WE WILL also make whole the personal representatives of Ed-
ward Siebert for any loss of pay, bonuses, emoluments, and in-
surance or other death benefits suffered as a result of the
discrimination.
NATIONAL UNION OF MARINE COORS AND STEWARDS,
Labor Organization.
By ------------------------------------------------------
(Representative ) (Title)
Dated ---------------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by Don L . Rotan, an individual , on April 1 , 1949, and
amended on October 12 , 1949, in Cases Nos. 19-CA-186 , 187, 188, and 189, and
on April 1 , 1949, in Case No. 19-CB-46 , and upon charges filed by Pacific Marine
Stewards Union , AFL (hereinafter called PMSU ), on May 16, 1949 , in Case No.
19-CA-213 and September 22, 1949 , in Case No . 19-CB-78, by Franklin Barks-
dale, an individual , on December 27, 1948, in Case No . 19-CB-32, by Marshall R.
McMonagle , an individual, on June 1 , 1949 , in Case No . 19-CB-61, and by Louis
A. Thuesen , an individual , on July 7 , 1949, in Case No. 19-CB-65, the General
Counsel of the National Labor Relations Board ( hereinafter called the Board),
by the Regional Director of the Nineteenth Region ( Seattle, Washington ), issued
a consolidated complaint dated October 24, 1949 , against Pacific American Ship-
owners Association ( hereinafter called PASA ), Pacific Maritime Association
(hereinafter called PMA ), Alaska Steamship Company ( hereinafter called
Alaska ), American Mail Line, Ltd. (hereinafter called American Mail), Pope &
Talbot, Inc. (hereinafter called P & T and all of said companies being herein-
after collectively called Respondent Companies ), and National Union of Marine
Cooks & Stewards , 010 (hereinafter called MCS , and MCS and Respondent
Companies being hereinafter collectively called Respondents ), alleging that
Respondents had engaged and were engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1), (2), and (3), as to Respond-
ent Companies , and Section 8 (b) (1) (A) and (2 ), as to MCS , of the National
Labor Relations Act, as amended (hereinafter called the Act), 61 Stat. 136.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of the complaint, the order consolidating the cases, the charges and a
notice of hearing were duly served upon Respondents. With respect to the
unfair labor practices, the complaint as amended at the hearing alleged in sub-
stance that : 1 (a) Respondent Companies on December 2, 1948, entered into,
and have since observed and carried out, a contract with MCS providing, inter
alia, for preferential hiring of members of MCS, replacement of employees by
members of MCS, and hiring of employees through the offices of MCS; (b) on
or about January 11, March 31, and May 16, 1949, Alaska refused to employ
respectively 54, 92, and 78 qualified applicants for employment in the stewards
department of its vessels because of the contract with MCS; (c) on or about
December 8, 1948, American Mail refused to employ Thomas J. Howard, a
qualified applicant for employment in the stewards department of its vessels
because of the contract, and by the execution and observance of the contract,
discriminatorily discharged Howard; (d) on various respective dates in late
1948 and early 1949, Alaska refused to employ 11 qualified applicants for em-
ployment in the stewards department of its vessels because of the contract;
(e) Alaska, P & T, and American Mail, by the execution and observance of the
contract with MCS, discriminatorily discharged 53 employees ; (f) a union-
security agreement had never been authorized pursuant to the provisions of
Section 9 (e) of the Act; (g) by the foregoing conduct, Respondent Com-
panies engaged in unfair labor practices within the meaning of Section 8 (a)
(1), (2), and (3) of the Act; and 2 (a) MCS in 1934, 1936, 1946 and more
particularly in 1948, engaged in strikes against Respondent Companies, an ob-
jective of which was the obtaining of preference of hiring for its members; (b)
on December 2, 1948, MCS entered into and has since observed and carried out
the above-described contract with Respondent Companies; (c) on or about
April 11, 1949, MCS circulated among other maritime unions a blacklist of most
of the applicants for employment referred to above; (d) on or about April 29,
1949, MCS refused to permit the 92 applicants to register or use the facilities
of its hall to attempt to obtain employment as stewards; (e) from December 21,
1948, to date, MCS supplied personnel through its hiring hall for the stewards
department of vessels operated by Alaska, P & T, American Mail, and other
companies and refused to dispatch or consider for dispatching any of the above
applicants for employment with said companies; (f) MCS, by the enforcement
of the contract of December 2, 1948, both caused Alaska, P & T, and American
Mail discriminatorily to refuse to employ any of the above applicants for em-
ployment and caused said companies discriminatorily to discharge Howard and
53 other employees, because their membership in MCS had been terminated;
(g) MCS, from October 10, 1948, to March 1949, maintained armed guards at its
hall who displayed hostility towards persons suspected of rival union activity
and thereby prevented the above applicants from using the hall to obtain em-
ployment because of fear of bodily harm; (h) by the foregoing conduct. MCS
engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A)
and (2) of the Act.
Each of Respondents filed an answer, denying the commission of any unfair
labor practices and certain of the substantive allegations of the complaint In
addition MCS' answer affirmatively alleged that the pertinent provisio1i' of the
Act, both inherently and as construed and applied, were unconstitutional '
i As uniformly held by the Board, the constitutionality of all legislation is assamprl until
decided to the contrary by the courts. Rite-Form Corset Company, 75 NLRB 174 National
Maritime Union, 78 NLRB 971:
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 633
Pursuant to notice a hearing was held in Seattle, Washington, on various days
from November 29, 1949, to January 28, 1950, and in San Francisco, California,
on January 31 and February 1, 1950, before the undersigned, Robert L. Piper, the
Trial Examiner duly designated by the Chief Trial Examiner . All parties except
Barksdale , who did not appear, were represented by counsel, participated in the
hearing , and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce"evidence bearing upon the issues.
At the opening of the hearing, Respondents moved to strike various allegations
of the complaint. MCS' motion to strike a portion of paragraph .22 of the
complaint, which alleged that certain strikes, and the objectives thereof, engaged
in by MCS prior to 1947 were unfair labor practices, was granted, upon the
grounds that all of this alleged activity took place more than 6 months prior to
the service of any charge against MCS. All other motions to strike were denied.
During the hearing the General Counsel made various motions to amend the
complaint, all of which were granted, together with corresponding amendments
to the respective answers denying the amended allegations . It would serve no
useful purpose to review here all of these amendments. One of them added the
names and dates of Carol E. Campbell, May 2, 1949, and Ralph J. Starnes, De-
cember 7, 1948, to the list of applicants to Alaska for employment in paragraph
47 of the complaint, and deleted therefrom Dan J. Rotan, February 1, 1949. An-
other specifically listed 53 named employees in lieu of a general group alleged
to have been discriminatorily discharged by Alaska, P & T, and American Mail
in paragraphs 62, 63, and 64. In addition the General Counsel reserved the right
to add to this list the names of certain persons employed by Northland Transporta-
tion Company (hereinafter called Northland), at the time of the P1948 strike, on
the theory that they were legally employees of Alaska.
At the conclusion of the General Counsel's ease-in-chief, Respondents made a
number of motions to dismiss the complaint and various portions thereof. All
of these motions were denied, except MCS' motion to dismiss paragraph 42 as to
certain named individuals, which was granted as to Ernest Bahr, Adolph Baide,
Jr., John E. Boers, J. R. Costello, John Davis, W. H. Davis, Douglas Delzell, Theo
Erlwein, Don Forrest, Reino Heija, Wilbur Higginson , John Kubath, Tony Man-
zano, C. H. McCormick, John McGann, Al Mundt, Arnold Rockstad, Gus Sinclair,
and Carl Singer, because of failure of proof. In addition, ruling was reserved on
Respondents ' motion to dismiss paragraphs 62, 63, 64, and 65 as to certain named
individuals on the grounds that they were not employees of Alaska, P & T, or
American Mail , and is disposed of by the findings and conclusions hereinafter
made.
At the conclusion of oral testimony, Respondents' renewed motions to dismiss
were denied. The General Counsel's unopposed motion to dismiss the complaint
as to Franklin Barksdale was granted. Pursuant to stipulation, all parties
were afforded 6 months within which to take and offer in evidence depositions
of any individuals alleged to have been discriminated against who had not
testified. No such depositions were offered. The General Counsel reserved the
right to have marked and offered in evidence as his exhibits, subject to Respond-
ents' objections, two certain crew lists of the Lucidor and Palisana, vessels op-
erated by Northland. These exhibits were offered, have been marked as General
Counsel's exhibits 28 and 29, and are hereby received in evidence. All parties
waived oral argument.
The 6 months for taking depositions having expired, the hearing was formally
closed pursuant to an order served upon all parties. Thereafter, pursuant to
leave granted in the order, counsel for Respondent Companies, counsel for
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PMSU and Don L. Rotan, and the General Counsel filed briefs which have been
considered.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT COMPANIES
(a) Alaska is a Washington corporation maintaining its principal office and
docks at Seattle, Washington, where it is engaged in the operation of seagoing
vessels in the offshore and Alaska maritime trade. During 1948 Alaska operated
approximately 20 vessels, transporting in excess of 20,000 passengers and 400,000
tons of freight, principally between the State of Washington and the Territory of
Alaska. Alaska stipulated that it is engaged in interstate commerce. I find
that Alaska is engaged in commerce within the meaning of the Act.
(b) American Mail is a Delaware corporation maintaining its principal office
and docks at Seattle, Washington, where it is engaged in the operation of sea-
going vessels in the offshore maritime trade. During 1948 American Mail
operated approximately 10 vessels, transporting in excess of 100 passengers and
50,000 tons of freight, principally in the Oriental trade. American Mail stipulated
that it is engaged in interstate commerce. I find that American Mail is engaged
in commerce within the meaning of the Act.
(c) P & T is a California corporation maintaining its principal office and
docks at Seattle, Washington, where it is engaged in the operation of seagoing
vessels in the offshore maritime trade. During 1948 P & T operated approxi-
mately 14 vessels, transporting in excess of 200,000 tons of freight between ports
in the United States and ports outside the United States. P & T stipulated that
it is engaged in interstate commerce. I find that P & T is engaged in commerce
within the meaning of the Act.
(d) PASA was a nonprofit California corporation maintaining its principal
office and place of business in San Francisco, California. It was an association
of steamship companies (including Alaska, American Mail and P & T), which
operated vessels between Pacific Coast ports and other ports of the United
States and foreign countries. Its principal business was to act on behalf of its
members in labor relations matters, including the negotiation and execution of
collective bargaining agreements. The Board has found PASA to be an employer
within the meaning of the Act,' and accordingly I so find.
(e) PMA is a nonprofit California corporation maintaining its principal office
and place of business in San Francisco, California. By an agreement dated May
20, 1949, PASA, Waterfront Employers Association of the Pacific Coast, and
Waterfront Employers Association of California were consolidated and became
PMA. PMA assumed the rights, properties, debts, and liabilities of its pred-
ecessor corporations, and came into formal existence on June 3, 1949. Its
principal business is to act on behalf of its members (including Alaska, American
Mail and P & T), in labor relations matters, including the negotiation and
execution of collective bargaining agreements. The Board has found PMA to
be an employer within the meaning of the Act,' and accordingly I so find.
U. THE ORGANIZATIONS INVOLVED
MCS is a labor organization admitting to membership employees of Respondent
Companies.
2 Pacific American Shipowners Association, 80 NLRB 622
2 Pacific Maritime Association, 89 NLRB 894.
PACIFIC AMERrCAN SHIPOWNERS ASSOCIATION 635
PMSU is a labor organization admitting to membership employees of Respond-
ent Companies.
III. THE UNFAIR LABOR PRACTICES
A. C1eronology of events
The history of labor relations in the Pacific Coast maritime industry has
been ably documented in other cases, and will not be repeated here. Suffice it
to say that in 1935 an arbitration award settled then pending disputes in the
industry, and subsequent contracts between MCS and the shipping companies
.'were based upon this award. In 1937, following a strike in 1936, MCS obtained
from the employers an agreement to hire steward personnel only from MCS'
hiring hall, and to give preference of employment to MCS members. Similar
provisions have been included in each succeeding contract. Pursuant to these
provisions, employees are dispatched to the ships from MCS' hiring hall by
its dispatcher. Because of the nature of the industry and in order to dis-
tribute work, MCS has evolved a system known as "rotary hiring." For a
detailed discussion of;tliis system, the reader is referred to National Union of
Marine Cooks and Stewards, 90 NLRB 1099. Briefly, it provides for rotation
•ot employment among members of MCS by registration for work. Only mem-
bers whose dues are paid in full are permitted to register. They do so accord-
ing to the job classifications for which they are qualified. The time and date
of such registration is recorded. When jobs come in, periodic calls are made
at the hiring hall, and the job is posted on a bulletin board. Members then
"bid," or "throwin," for such jobs by giving their registration cards to the
dispatcher. The member with the oldest date of registration gets the job.
New union recruits are passed upon by MCS, and if approved, issued permit
cards. If no members bid for a job, then "permit" holders may bid and be
dispatched to the job. After each voyage, all jobs held by permit holders are
again posted and bid for by members, who in this manner "bump," or replace,
permit holders. Only if no member desires the job is a permit holder reshipped.
In addition, no permit holder may be promoted. Certain union requirements
involving time worked, performance and other factors exist for promotion
from a permit holder to a member. By controlling the issuance of permits
and admission to membership, MCS effectively controls the employment of all
applicants. It is apparent that the system results in rotation of employment
among paid-up members. However, it also results in absolute preference for
--such members, not only in hiring but also in tenure, because permit holders
.may be bumped by members.
In the spring of 1948, negotiations for a new contract were commenced
between PASA and MCS. The then existing contract was to expire June 15,
,1948. Among its other demands, MCS desired the continuation of the union
hiring hall and preference of employment for its members. At about the same
time, certain organizing activities among the stewards department employees
of Respondent Companies were begun by the Sailors Union of the Pacific
(hereinafter called SUP). Negotiations between PASA and MCS continued
throughout the spring but no agreement was reached. The United States
District Court for the Northern District of California, pursuant to the pro-
visions of Sections 208 and 209 of the Labor Management Relations Act of
1947, issued a temporary restraining order on June 14, and an 80-day injunction
On July- 2, preventing a strike. On August 31, MCS proposed a contract to
PASA providing for preference of employment based on seniority, and prohibiting
discrimination in hiring because of union membership or lack thereof. No
agreement was reached. On September 2, 1948, upon the expiration of the
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
injunction, MCS struck against all members of PASA. The strike lasted for
3 months.
In October SUP requested Alaska to recognize it as the bargaining representa-
tive of Alaska's steward department employees, which was not done. On October
28 SUP filed a petition for certification as such representative with the Board,
which was denied on November 26. During October, November; and- December
of 1948, and thereafter in 1949, the Seattle branch of MCS took action against
the rival activity of SUP. By formal action the Seattle'branch expelled those
of its members found guilty of rival union activity , and resolved to blacklist
them with affiliated unions and the other branches of MCS. .
In the latter part of November negotiations were resumed between PASA and
MCS. Considerable progress toward agreement was made. With respect to
hiring provisions MCS was advocating agreement on the basis of its seniority
proposal of August 31. However, just before agreement was reached, PASA
proposed a renewal of the former clauses on hiring, which provided for employ-
ment through MCS' hiring hall and preference for its members . The concurrent
dispute with the Longshoremen 's union having been settled upon such a basis,
PASA urged uniformity in the contracts. On December 2, 1948, a contract was
executed between PASA and MCS, containing substantially the same provisions
as the previous contract in regard to hiring and preference of employment. No
union-security provisions have ever been authorized pursuant to Section 9 (e) of
the Act. On December 6 the strike was formally terminated and ships began
to sail.
During the strike those members of MCS who'had signed SUP pledge cards
and others who were dissatisfied with MCS for various reasons organized a union
originally known as Marine Cooks and Stewards,-AFL, anti-Communist. This
union was affiliated with SUP, and ultimately changed its name to PMSU in the
latter part of 1948. For reasons not divulged in the record, SUP did not take
the members of this group into its own ranks, although nearly all of them had
signed SUP pledge cards. They had all been members of MCS and had sailed
in the stewards department of Respondent Companies.
When the ships began to sail, Alaska, American Mail and P & T secured their
steward personnel from MCS as they had in the past, pursuant to the contract
of December 2. Although many of the members of PMSU were either employees
of Alaska at the commencement of the strike or former employees , none of them
were dispatched by MCS or employed by Alaska. As previously noted, MCS had
expelled them from membership and had taken action to blacklist them with
affiliated unions and other MCS branches. From December until the spring of
1949, various individuals made personal applications for employment in the
stewards department to Alaska and American Mail, but none were employed. In
the latter part of December 1948, PMSU members- at a union meeting authorized
Don Rotan, PMSU organizer and leader, to seek work for them and to make
applications for employment. All of the members individually authorized Rotan
to act as their agent in this respect,,and members who subsequently joined and
others also individually so authorized him. On January 7, 1949, Rotan submitted
a list of 54 names to Alaska, with an inquiry whether the persons named were
acceptable for employment. On January 11, Alaska advised Rotan that they all
were acceptable for employment but upon advice of counsel refused to give Rotan
a letter to that effect. On March 18; SUP filed its second petition for certifica-
tion with the Board. On March 31, Rotan applied in writing to` Alaska for the
employment of 92 named individuals. On April 11, Alaska replied, refusing to
take any action. On April 11, MOS sent a letter and the blacklist to the Alaska
Fishermen's Union (hereinafter called AFU), characterizing the persons listed
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 637
as disrupters, deserters,, and renegades, and pointing out that they might try to
obtain employment in other branches of the industry. On April 16, Rotan wrote
to Harris , Seattle agent of MCS, inquiring about the MCS status of the 92 persons
named in the application of March 31 to Alaska, requesting MCS to permit them
to seek employment through its facilities, and agreeing to tender all MCS dues
and assessments if they would be allowed to register under MCS procedure with-
out fear of bodily harm or threats. On April 29, Harris replied that the union
hall was.open_daily to transact business, but that Rotan must have contacted the
wrong Party, because MCS was not an employer and had no jobs to offer anyone.
The inquiries concerning union status, tendering of dues, and permission to
register and seek employment through MCS facilities were ignored. On May 7,
Rotan, having been informed by Alaska that it was going to recommission the
S. S. Aleutian and employ a crew, applied for all of the positions in the stewards
department of the Aleutian except chief steward. He submitted to Alaska a
list of 78 applicants, 1 for each rating in that department. On May 12, Rotan
contacted Alaska concerning this application and was referred to its counsel,
who refused to employ any of the applicants. On May 13, Alaska ordered a
stewards crew for the Aleutian from MCS, and requested Harris to include in
such crew and dispatch 6 certain employees who had been employed on the
Aleutian when the strike began. The 6 persons requested were among the 78
applicants submitted; by Rotan. On May 14, Alaska hired the entire stewards
crew for the Aleutian from MCS. On May 25, Harris replied to Alaska's letter
of May 13, saying that all means possible had been used without success to locate
the 6 named persons, and that none of them had made themselves available for
employment. He further told Alaska that they were out of the industry. (All
6 were included in Rotan's letter of April 16 to Harris.)
B. Issues , contentions , and conclusions
1. The execution and enforcement of the contract
The complaint alleged that by the mere execution and continued existence of
the contract of December 2, 1948, Respondent Companies interfered with, re-
strained, and coerced employees in violation of Section 8 (a) (1) of the Act, and
by the execution and observance of the contract, discriminated against them in
violation of Section 8 (a) (3) ; and that by the mere execution, continued
existence and application of the contract to the 8 a 3's, MCS restrained and
coerced employees in violation of Section 8 (b) (1) (A), and caused or attempted
to cause Respondent Companies to discriminate against employees in violation
of Section- 8 ^ (b) (2).
Respondents admitted execution of the contract and conceded that no author-
ization for union-security provisions had been secured from the Board pursuant
to Section 9 (e) of the Act. The Board has already found this same contract
N iolative of the Act' Briefly, the contract provides that Respondent Companies
shall secure all stewards department employees through the offices of MCS and
give preference of employment to members of MCS, that permit men may be
replaced by book members, and that permit men so replaced shall be considered
laid off. For the reasons stated by the Board,' it is found that MCS violated
Section 8 (b) (2) of the Act by the execution and enforcement of the contract.
It must now be considered well settled that the mere execution and observance
by a union of a contract containing illegal union-security clauses does not restrain
* National Union of Marine Cooks and Stewards, 90 NLRB 1099.
1 See footnote 4, supra.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and coerce employees within the meaning of Section 8 (b) (1) (A).' The allega-
tion of the complaint also included the language "by the application [of the
contract] to the 8 (a) 3's." However, the complaint contains separate and distinct
allegations that MCS violated Section 8 (b) (1) (A) by actually causing Respond-
ent Companies to discriminatorily discharge or refuse to employ certain specific
employees, which will be considered hereinafter. Accordingly, the section of the
complaint presently under consideration is treated as an allegation that the
execution and observance of the contract, separate and distinct from its applica-
tion to specific persons, is violative of Section 8 (b) (1) (A). For the reasons
stated, it is not so found.
By the execution and continued existence of the contract, containing illegal
union-security provisions, Respondent Companies interfered with, restrained, and
coerced employees in violation of Section 8 (a) (1) of the Act; by the execution
and observance of the contract, Respondent Companies discriminated against
employees in violation of Section 8 (a) (3) of the Act'
The complaint also alleged that by the execution and enforcement of the
contract, and the discharge of and refusal to employ specific individuals, Re-
spondent Companies contributed "other support" to MCS in violation of Section
8 (a) (2).
The Board has heretofore determined that the execution of such a contract
contributes support to a union, and accordingly it is found that Respondent
Companies violated Section 8 (a) (2) by the execution and enforcement of the
contract'
2. The alleged attempt to cause discrimination by the 1948 strike
The complaint alleged that MCS engaged in strikes against Respondent Conn
panies in 1934, 1936, 1946, and 1948, an objective of which was the obtaining of
preference of hiring, for its members, and that by such conduct MCS violated
Section 8 (b) (1) (A) and (2). Upon motion, the allegations concerning the
1934, 1936, and 1946 strikes were stricken, because of the 6 months' limitation
contained in Section 10 (b). Considerable proof was received with respect to
the objectives of the 1948 strike, which culminated in the contract of December
2. However, this same allegation has already been ruled upon by the Board
in the National Union of Marine Cooks and Stewards case, supra. The Board
there found that the securing of an illegal preference of hiring clause was not
an objective of the strike, because MCS' last prestrike proposal provided for
hiring upon a nondiscriminatory seniority basis, and the hiring clause ultimately
incorporated in the contract was proposed by Respondent Companies. I consider
myself bound by the Board's decision of this same issue. In effect, it amounts
to res judicata. As the Board said concerning another realleged violation which
it had dismissed in a prior case : "In these circumstances, we do not feel that
it will effectuate the purposes of the Act further to consider the manner in
which .... Accordingly, we hereby strike [the allegation] from the complaint."'
Additional evidence of the alleged violation was offered in that case, as it was,
in this. Even if the Board had not decided this issue, the evidence in the record
does not persuade me that an objective of the 1948 strike was the securing of
illegal preference of hiring. Accordingly, for the reasons stated, the 1948 strike
is not found violative of Section 8 (b) (1) (A) or (2).
6 National Maritime Union, 78 NLRB 971 (enfd 175 F. 2d 686 , cert. den., 338 U. S.
954) ; Amalgamated Meat Cutters Union, 81 NLRB 1052.
'Paci'fic Maritime Association, 89 NLRB 894; Acme Mattress Company, Inc, 91 NLRB
1010.
s Julius Resnick , Inc, 86 NLRB 38.
° Calitruit Canning Company , 78 NLRB 112.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 639
3. The circulation of the blacklist by MCS
The complaint alleged that MCS violated Section 8 (b) (1) (A) and (2)
by the circulation among other maritime unions of a letter and a list of names
of former members, characterizing them as renegades and attempting to prevent
their employment. The record reveals that during the fall of 1948, the Seattle
branch of MCS by formal action expelled certain members suspected of SUP
activity and resolved to blacklist them with its other branches and affiliated
maritime unions. It further- reveals that on April 11, 1949, such a list was
sent to AFU, with the observation that: "While these renegades have been
completely discredited and defeated, they may attempt to obtain employment
in other sections of the industry, particularly when the fishing season opens."
Harris, port agent of MCS' Seattle branch, admitted this list and letter were
sent to all MCS branches as well. The existence and distribution of the black-
list were known to those named in it. Its effectiveness was established in the
record. 4 number of the men on the blacklist attempted to secure employment
in the Alaska canning industry. After receiving favorable responses from the
employers, they were referred to AFU, which had a contract with the employers
requiring union membership and clearance. AFU, having received the blacklist
from MCS, refused to clear for employment any of the men on the list who
applied to them. The General Counsel urged that this conduct by MCS vio-
lated Section 8 (b) (2) upon two theories: one, that AFU (and presumably
the other MCS branches) was acting as agent for the employers and therefore
the conduct was an attempt to cause them to discriminate ; and two, that Sec-
tion 8 (b) (2) prohibits union discrimination, as distinguished from causing
or attempting to cause an employer to discriminate. With respect to the first,
it is undisputed that the blacklist was sent to other unions, and not to employ-
ers. Concededly, under certain circumstances a union might be found to be
an agent of an employer. Section 8 (b) (2) prohibits causing or attempting
to cause an employer to discriminate. I do not belive that there is sufficient
evidence in the record to establish that AFU was acting as an agent for any
employer, and that therefore the sending of the blacklist by MCS to AFU was
an attempt to cause an employer to discriminate. As far as the distribution
to other MCS branches is concerned, I have already found that MCS attempted
to cause Respondent Companies to discriminate by the execution and enforce-
ment of the-contract. Its blacklisting among its various branches of persons
expelled from membership was actually a facet of such enforcement, because
the contract provided for preferential hiring of its members. Accordingly,
this alleged violation is actually a part of conduct already found violative of
Section 8 (b) (2). The General Counsel's second theory is based upon the
language of Section 8 (b) (2), which makes it an unfair labor practice for a
labor organization "to cause or attempt to pause an employer to discriminate
against an employee in violation of subsection (a) (3) or to discriminate against
an employee with respect to whom membership in such organization has been
denied or terminated on some grounds other than his failure to tender the
periodic dues . . ." The theory of the General Counsel apparently is that the
emphasized portion of the section prohibits union discrimination, as distin-
guished from causing or attempting to cause an employer to discriminate. This
is a novel theory, which I find unsupported by any decision. Admittedly the
language of the section is not entirely clear, because the disjunctive "or" may
refer back to the labor organization, or to the employer. However, the uniform
interpretation of the section and its legislative history support the (view that
it is meant to prohibit causing or attempting to cause employer discrimination,
and not union discrimination independent of an employer. For the reasons
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated , the distribution of the blacklist by MCS is not found violative of Sec-
tion 8 (b) (2).
It is clear , however , that the distribution of the blacklist to other unions did
restrain and coerce employees in the exercise of the rights guaranteed by Section
7, as prohibited by Section 8 (b) (1) (A). Engaging in union activity in support
of PMSU and SUP, and refraining from MCS activity, are clearly rights guar-
anteed by Section 7. The Board has had frequent occasion to define the types
of activity prescribed by Section 8 (b) (1) (A), and among them is the threat
of economic action to prevent the exercise of rights guaranteed by Section 7.10
This conduct was not only a threat of economic action, but its actual effectuation.
By the action taken, MCS prevented employees from obtaining work in other
branches of the maritime industry . The obvious effect was to restrain and coerce
them in the exercise of their rights under Section 7. As the Board has said:
"Section 8 (b) (1) (A) proscribes the threat of economic action. It would be
anomalous to conclude that the actual effectuation of the threat did not also
constitute restraint ." 11 MCS contended that in any event this action , was pro-
tected by Section 8 (c) as free speech. Clearly , this distribution of a blacklist
was not an expression of views, argument or opinion , without threat of reprisal
or force or promise of benefit. Rather , it was a verbal act. A threat to distribute
such a list would obviously be unprotected by Section 8 (c). It follows that the
actual effectuation - of such a threat is less entitled ' to protection than the threat
itself. The Board has found blacklisting to be violative of the Act since the
inclusion therein of Section 8 (c).12 I find the sending of the letter and blacklist
to AFU by MCS to be violative of Section 8 (b) (1) (A).
4 The refusal by MCS to dispatch PMSU members or to permit them to use
MCS facilities
The complaint in this case contained 65 paragraphs , and a certain amount of
overlapping and intertwining is present among the allegations . As has already
been noted , an independent violation of Section 8 (b) (2) was not found with
respect to the distribution of the blacklist to other MCS branches , because this
was in actuality part and parcel of the enforcement of the contract, which
enforcement had been found violative of 8 (b) (2). Similarly , an alleged inde-
pendent violation of Section 8 (b) (1) (A) was not found with respect to the
"execution , continued existence and application to the 8 ( a) 3's" of the contract,
because another allegation of the complaint alleged a violation of Section 8 (b)
(1) (A) with respect to the actual discrimination brought about by the discharge
and refusal to employ specific persons.
It would appear to serve no useful purpose , and would unduly lengthen this
report , to find that certain conduct violated the Act, and then find that component
parts of the same conduct also violated the Act . The present allegation falls
within this category . The complaint alleges that by refusing to dispatch certain
persons or permit them to use its hiring hall , MCS violated Section 8 (b) (1) (A)
and (2 ). The record reveals that such refusals occurred . However, such re-
fusals amount to enforcement of the contract , which provides for preference
of employment for MCS"members. The execution and enforcement of the con-
tract has already been found violative of Section 8 (b) (2). In effect , the General
Counsel has pleaded the same violation in two different ways. It has also been
found that the execution and enforcement of such a contract, separate and
10 Smith. Cabinet Manufacturing Company, Inc., 81 NLRB 886 ; Seamprufe Incorporated,
82 NLRB 892.
11 Clara-Val Packing Company, 87 NLRB 703.
12 Russell Manufacturing Company, Inc., 82 NLRB 1081.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 641
distinct from its discriminatory application to specific persons, is not violative
of Section 8 (b) (1) (A). It is true of course that the causing of discrimination
against specific persons is violative of Section 8 (b) (1) (A), which will be
considered herein in connection with the allegations concerning specific individ-
uals. But the general observance of a discriminatory contract, as distinguished
from such specific application, has been found not violative of Section 8 (b) (1)
(A), as not being the type of conduct proscribed by that section. For the reasons
stated, I find no separate violation of the Act in the refusal by MCS to dispatch
nonmembers or permit them to use its hiring facilities.
5. The maintenance of armed guards at the MCS hall
The complaint alleged that MCS violated Section 8 (b) (1) (A) by maintain-
ing at its hiring hall armed guards who displayed a hostile attitude towards
persons affiliated with SUP, thereby restraining and coercing such persons
from using the hall or attempting to ship out. The proof does not sustain thia
allegation. The record shows that for a period of time, arms and barricades:
were maintained at the hall. However, it is undisputed that they were there
for the purpose of self-defense. Whether rightly or not, MCS anticipated a
possible raid on its headquarters by SUP. For this reason arms and barri-
cades were brought in. There is no evidence in the record that they were used
in any way to restrain or coerce employees in the exercise of the rights guar-
anteed by Section 7. They may have caused dissatisfaction, or even fear, upon
the part of certain employees, but such does not constitute restraint and coercion
of the right to engage in union activities, or refrain therefrom. A distinction
must be made between the dictionary usage of restraint and coercion and the
statutory restraint and coercion of rights guaranteed by the Act. The right to
engage in union activity, or refrain therefrom, was in no way affected by the
perhaps exaggerated defense measures adopted by MCS.
6. The discriminatory discharges and refusals to hire
In addition to the allegations of discrimination by the execution and observance
of the contract, the complaint alleged a series of specific discriminatory dis-
charges and refusals to employ. Over 100 employees are involved, and many of
them are included in more than one,of the different instances of alleged dis-
crimination. These instances will be considered in the following order: The
discharges , the refusal to employ individual applicants , and the group applica-
tions of January 11, March 31, and May 7, 1949, to Alaska.
a. The discriminatory discharges
The complaint alleged that MCS in violation of Section 8 (b) (1) (A) (2)
caused the discharge of, and Respondent Companies in violation of Section 8
(a) (1) and (3) discriminatorily discharged , the 53 employees named in Ap-
pendix A , by the execution and enforcement of the contract of December 2.
In addition to the 53 named employees , the General Counsel contended that
certain employees of Northland on ships operated by Northland before the
strike and by Alaska after the strike were in effect employees of Alaska and
also so discharged . For reasons hereinafter discussed , this contention is found
to be without merit . The complaint also alleged that MCA caused the discharge
of, and American Mail discriminatorily discharged , Thomas Howard, by the
execution and enforcement of the contract.
Because of the nature of the industry, continuity of employment with one
employer is frequently not the case . When a ship ties up, personnel register for
other vacancies , and are frequently dispatched to other ships, thus terminating
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their former employment. Practically all of the alleged dischargees had at one
time or another worked for Alaska. This was no doubt true of nearly all the
members of the Seattle branch of MCS. Certain customs and practices concern-
ing continuity of employment have become established in the industry. While a
ship's personnel signs off the articles at the termination of each voyage, this does
not terminate the employment relationship. The Supreme Court has so found'3
The contracts entered into between Respondent Companies and MCS recognized
this practice by providing that any MCS member might remain continuously in
employment. In addition, the shipping rules of MCS provide that a member be
redispatched to his position if the ship sails within 10 days. If the layover
exceeds 10 days, the employment relationship terminates. The record reveals
another instance where employment status continues. When a strike occurs,
those employees who tie up a ship are entitled to be redispatched to it upon
the termination of the strike, and remain employees of the company employing
them at the time of the strike. This practice and custom was recognized by
Respondent Companies and MCS. It is also found in MCS' shipping rules. It
is this category of employment status which applies to the instant allegation of
discriminatory discharge. The General Counsel contended that all of the 53
'named employees were woiking for Alaska at the time of the strike, and thus
-were its employees when the contract was signed on December 2 terminating the
strike. This custom of the industry of course coincides with well- established,
law. Employees who engage in an economic strike remain employees , and unless
replaced during the strike, are entitled to reinstatement in their former positions
-when the strike is terminated. This principle is too well established to need
.elaboration. However, the nature of the maritime industry has some effect upon
its application. Under this doctrine, a striking employee is entitled to return to
his same position with the same employer. If the position has ceased to exist,
no obligation on the employer to reinstate the employee could be found. Certain
ships operated by Alaska at the time of the strike were never operated by Alaska
thereafter. As a result the positions held with Alaska on those ships ceased to
exist. Although the complaint alleged that the 53 employees discharged were
employed by Respondent Companies, with the exception of Howard the proof
offered concerned only their employment by Alaska.
Normally, of course, it is necessary for striking employees to make application
for reinstatement. Again, because of the nature of the industry, the termination
of the strike did not mean the immediate return to work of the employees,
as would be the case in a plant or a factory. As the ships were recommissioned
by the various companies, employees who were last employed on them were
entitled to return. This meant that certain jobs held before the strike might
not open up for a considerable time, until that ship'sailed. For this-reason,
there was no immediate mass return of all employees as would normally be
the case upon the termination of a strike. The General Counsel contended
that Respondent Companies, by entering into a contract effectively prohibiting
.the employment of persons not members of MCS, had in effect refused to
reinstate all employees entitled to return who were not members of MCS, and
by thus effectively preventing their reinstatement, had discharged them.
Whether this be construed as a refusal to reinstate or a discharge makes no
practical difference. The General Counsel contended that no applications were
necessary because they were futile. By entering into a contract which in
effect prohibited the return of employees who did. not belong to MCS, Respond-
ent Companies had made it impossible for them to return, and they were not
Is N. L. R. B. V. Waterman Steamship Corporation , 309 U. S. 206.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 643
required to make the futile and useless gesture of applying for reinstatement
under the circumstances. Another way of stating it is that as a result of
Respondent Companies' unfair labor practice of executing and enforcing the
contract, employees were barred from reinstatement to their positions, and
because of such unfair labor practice, the necessity of applying for reinstatement
was eliminated. I believe this contention has merit. Although several of
the employees entitled to reinstatement did apply (and were refused), the
majority made no application to Alaska for reinstatement. It was of course
common knowledge that Alaska and MCS were parties to an agreement which
effectively prevented the employment of anyone not a member of MCS. Under
these circumstances, an application for reinstatement was a futile gesture.
In addition, those employees who did apply were refused reinstatement, thus
confirming to all of the employees a condition which was already well known
to them. When the contract containing the illegal preference was executed,
Alaska was aware of the fact that a group of its employees had left MCS, as
evidenced by SUP's request for bargaining, SUP's petition for certification,
and Alaska's oral agreement with MCS, entered into at the time of the written
contract, which will be discussed subsequently. In the face of this knowledge,
Alaska entered into a contract requiring MCS membership, and made no effort
to reinstate or recall other employees entitled to return, and in fact refused to
reinstate some who made personal application. The Board has had occasion
to consider circumstances similar to this, and has found in. such cases that no
application need be made. In the Jacob' Hunlcele case," the employer entered
into an illegal closed-shop contract with a union while his employees were on
strike. The employees were not members of that union. No application for
reinstatement was ever made. The Board found that the execution of the
contract was tantamount to a discharge, and that because of it, no application
was necessary. The Board said : "The erection of this illegal barrier against
reemployment of these employees relieved them of the necessity of making
formal application for work. To hold otherwise would be to place a penalty
upon the striking employees for not doing what they knew would have been
useless." In the Nevada Consolidated Copper Corporation case,' the em-
ployer shut down its mines for an extended period of time. When they were
reopened, the employer determined not to reemploy any employees who were
members of the union. This policy was well known to all former employees,
and as a result several did not make applications for employment. Nevertheless,
discrimination was found, because the failure to apply was caused by the
employer's unfair labor practice in refusing to hire union members, which
made such application futile and unnecessary.
For the reasons stated, I find that Alaska, by the execution and enforcement
of the contract requiring illegal preference of hiring for MCS members, dis-
criminatorily refused to reinstate certain employees entitled to reinstatement,
and that MCS caused such discrimination.
Before considering the specific individuals alleged to have been discrimi-
natorily refused reinstatement, I turn now to a consideration of the various
defenses raised by Alaska and MCS. One of these was the failure of some to
apply for reinstatement, which has been considered. Another defense raised
was that Alaska entered into an oral agreement with MCS, just before the execu-
tion of the written contract but after agreement as to its terms had been reached,
providing that all employees of Alaska would be returned to the ships which
14 7 NLRB 1276.
?a 26 NLRB 1182, 127 F. 2d 587 (C. A. 10), 316 U. S. 105.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were on when the strike began, irrespective of their union membership and
the requirements of the written contract. That such an oral agreement was
made is undisputed in the record. Officials of both Alaska and MCS testified
-without contradiction to such effect. However, the evidence is equally undis-
puted that it was never carried out, and that no employees were reinstated who
had left MCS and joined PMSU. An agreement not to discriminate is no defense
to proof of discrimination. The record establishes that Alaska refused to rein-
state, and did not reinstate, any employees who had left MCS. It also establishes
that MCS expelled such employees, blacklisted them with other unions, and
repeatedly refused to permit them to use its hiring hall or be dispatched. for
employment. Some of the employees who were entitled to reinstatement were
,threatened with assault and even death, some were assaulted, some were told
they would never ship again, and some were told to stay away from MCS for
their own good, all by officials and members of MCS. In the face of these facts,
the oral agreement to permit the reinstatement of employees regardless of union
membership is obviously no defense. Only one instance of an alleged attempt
to live up to this agreement appears in the record. After having refused to
reinstate certain employees who had applied, on May 13, 1949, over 5 months
after the strike had ended and many ships had sailed, Alaska wrote a letter
to MCS requesting that six certain employees be redispatched to the S. S. Aleutian,
which was sailing for the first time after the strike. Although Alaska was
aware of the fact that some of its employees had left MCS and joined another
union, which obviously was the reason for the oral agreement, Alaska had made
no attempt to have the agreement carried out, and in fact had refused to reinstate
some employees who had made personal application. During this same period
MCS was engaging in the above-described conduct with respect to the employees
covered by the oral agreement. The letter of May 13 was undoubtedly occasioned
by Rotan's application of May 7 for jobs on the Aleutian. The applicants sub-
mitted by Rotan included the six Aleutian employees entitled to reinstatement
mentioned in Alaska's letter to MCS. Although both Alaska and MCS knew
where to contact these employees, no attempt was made to do so, and on May 14,
Alaska hired an entire crew from MCS. Although in frequent contact with each
other, no reference was made by either Alaska or MCS to the employees requested
by Alaska. Jones, Alaska's port steward, told Zumdieck, Alaska's superintend-
ent, that none of the six had come to work and that MCS was unable to get ahold
of them. Although Rotan had been at Alaska just 2 days before applying for
these men, Alaska made no effort to contact them or to advise MCS of their
availability. Alaska made no mention of the oral agreement to Rotan. On
May 25, 11 days after the crew was hired, MCS replied to the letter of May 13,
saying that it had made every effort to locate the six men, had been unable to do
so, and they were no longer working in the industry. MCS made such a state-
ment in spite of the fact that it had received a request on April 16 to permit
these same men and others to register and ship from the MCS hall. The only
effort to locate the men revealed in the record was an alleged announcement over
the loudspeaker in the MCS hall. Under the circumstances, this was probably the
last place one could have expected to find these men. Harris testified that the
men requested by Alaska had been blacklisted by MCS as renegades, were finks
and scabs, and that he thought so then and did also when he received the request.
The record reveals, and I find, that no good-faith attempt was ever made to
carry out the oral agreement. For the reasons stated, it constitutes no defense
to the discrimination caused by MCS and effectuated by Alaska.
Another defense advanced by Alaska and MCS, which applied not only to the
refusal to reinstate but also to the series of, applications for employment which
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 645
will be considered subsequently, was that the employees should have applied to
MCS' hiring hall, and their failure to do so relieved Alaska and MCS of any
responsibility. This contention is without merit. As the record shows, numer-
ous individuals did attempt to use the hiring hall and determine their status
with MCS, and were all rejected with varying degrees of emphasis. The threats
and violence accorded some had its natural effect upon the others. In addition
Rotan wrote MOS, requesting permission for 92 of the applicants to pay their
dues, register for shipping at the hiring hall, and seek employement. MCS equiv-
ocally but nonetheless certainly rejected this request in its reply. Even if none
of the employees and applicants had attempted to use the MCS hall, the very
terms of the contract made an application to the hall a useless gesture.18 Because
only MCS members would be shipped, an attempt to use the hall by members of
a rival union was not only useless, but as the record shows, fraught with danger.
Subsequently those who did apply to MCS took the precautoin of doing so by
telephone, and were advised in no uncertain terms that they were out. As far as
the employees entitled to reinstatement were concerned, the record reveals that
none of them were aware of the oral agreement which was supposed to permit
their return. As a matter of fact, this agreement was unknown to anyone except
the parties to it, and even the membership of MCS was not aware of its existence.
In any event, the record establishes that the oral agreement had no effect upon the
treatment accorded any of the employees who applied to MCS.
In support of this contention, another oral arrangement was advanced.
According to their testimony, in January, Tangen, secretary-treasurer of MCS,
advised Harris that from then on the shipping rules were out, and any applicant
for employment should be registered and dispatched, irrespective of union
membership or rival union activity. Again neither the membership of MCS nor
the applicants for employment from PMSU were aware of such instructions.
Harris told Ward and Nichols, MCS patrolmen, but no one else. This arrange-
ment was of course directly contrary -to the contract and MCS' shipping rules.
While under the circumstances I consider it somewhat incredible, it is unneces-
sary to pass upon the existence of such an arrangement. For the same reasons
discusse din connection with the oral agreement with Alaska, it is immaterial.
The record reveals that even if such an arrangement did exist, it was not honored.
Numerous applicants were denied the use of the hall and emphatically told to
stay away after the alleged arrangement . As in the case of the oral agreement,
an arrangement to permit nondiscriminatory registering and shipping is no
defense to facts proving such discrimination. After the alleged arrangement,
Rotan applied to MCS for the 92 persons, and was rejected. After the alleged
arrangement , Harris sent the blacklist to AFU. After the alleged arrangement,
MCS adopted new shipping rules continuing its requirement of membership for
registration. The record establishes beyond dispute that if such an arrangement
existed it was not followed. To argue that the applicants should have used the
hiring hall in the face of repeated rejections , the terms of the contract, and the
shipping rules because of an unknown arrangement which was not followed
Carries no conviction.
Another defense advanced to both the refusal to reinstate and the refusals
to employ was that alleged inconsistent or improper conduct by the complainants
should bar the finding of discrimination against Alaska and MCS. This alleged
misconduct consisted of the applicants' participation in the strike, with an
objective of retaining the illegal preference of hiring provisions, and participating
in allegedly similar hiring practices engaged in by SUP and PMSU. In
16 Daniel Hamm Drayage Company , Inc., 84 NLRB 458.
998666-vol. 9 8-53--42
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support of this position, Respondents relied upon the Indiana and Michigan
Electric Company case," wherein the Supreme Court held that the Board
should reopen a case for the receipt of newly discovered evidence of violent
misconduct by the charging parties (dynamiting of the Company's property),
in order to determine whether such conduct would have a bearing upon the
credibility of such witnesses and whether the purposes of the Act would be
effectuated in finding unfair labor practices alleged by persons guilty of such
conduct. However, as clearly pointed out by the Supreme Court in the subsequent
Donnelly case,ie the Indiana and Michigan Electric Company case does not
stand for the proposition that the Board must receive evidence of alleged
misconduct by the charging party, and in effect try the charging party
rather than the respondent. As the Court there said : ". . ., the whole tend-
ency is to leave rulings as to the illuminating relevance of testimony largely
to the discretion of the trial court that hears the evidence." In the Donnelly
case the same contention as Respondents advance here was rejected by the
Court. In adition, the misconduct alleged herein is not of the serious nature
of that in the Indiana case, which resulted in substantial prison sentences.
As far as the participation in the strike is concerned, it has been found that
the securing of an illegal preference of hiring clause was not one of its
objectives. Since the Donnelly case the Board and the courts have frequently
held that misconduct or unfair labor practices by the charging party are no
defense to an unfair labor practice by the Respondent.' Violations of the
Act by one party do not justify another in violating the Act. For the reasons
stated, I find no merit in this defense.
A final contention urged by Respondents was that no finding of discriminatory
refusal to reinstate or refusal to employ could be made with respect to any of
the discriminatees who had not testified. Respondents urged that the General
Counsel had to prove the availability for employment of each person in order
to establish that he had been discriminatorily refused reinstatement or employ-
ment. It is of course well established that where a group of persons is dis-
criminated against for the same reason, all need not testify in order to establish
discrimination against all.20 The testimony of all individuals under such cir-
cumstances would be merely cumulative. Respondents contend that this general
rule is inapplicable here, because the General Counsel must establish the
availability for employment of each person in order to sustain a finding of
discriminatory refusal to reinstate or employ such person. I cannot agree
with this contention of Respondents. It has been found that Alaska refused
and failed to reinstate any of its employees not members of MCS after the
strike. Evidence was offered that several group applications for employment
.n ere made to Alaska and that Alaska discriminatorily refused and failed to
employ any of the persons applying. Evidence was also offered that each of
the persons on the applications authorized the application. Assuming these
facts to be true, Respondents argue that the General Counsel must establish
the availability for employment of each person. The fallacy in this argu-
ment lies in the failure to distinguish between the essential elements of a
prima facie case and an affirmative defense. Respondents argue that some
of the persons who did not testify might not have been available for employment,
27 N. L. R. B. v. Indiana and Michigan Electric Company , 318 U. S. 9.
18 N L R. B. v. Donnelly Garment Company, 330 U. S. 219.
19N. L. R. B. v. Fulton Bag & Cotton Mills, 180 F. 2d 68 (C. A. 10, 1950) ; Sunset Line
d Twine Company, 79 NLRB 1487; Seamprufe, Incorporated, 82 NLRB 892; Cory
Corporation, 84 NLRB 972.
2" Calmar Steamship Corporation, 18 NLRB 1.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 647
and thus were not discriminated against. If true, this would be an affirmative
defense , contrary to the presumption established by the application, which
Respondents would have to prove in order to avoid responsibility for the
discrimination . It has been found that Respondents discriminatorily caused
and effectuated the refusal to reinstate employees entitled to reinstatement.
This was discrimination against the entire group. Having established this,
the burden of proving that discrimination should not be found as to certain
persons because of their unavailability for reinstatement would be upon Respond-
ents, as an affirmative defense or plea in abatement. The same reasoning applies
to the applications for employment. Assuming that the applications were made,
and Respondents discriminated, the burden of proving that the discrimination
did not apply to certain persons because they were unavailable for employment
would be upon Respondents. In establishing that the applications were duly
authorized and made, and that the refusal to employ was discriminatory,
the General Counsel would have made out a prima facie case . On this state
of the record a presumption would exist that the applicants were bona fide
and available for employment. No evidence was offered that they were not, and
substantial evidence was offered by those who testified that they were. Having
made out such a prima facie case, the burden would shift to Respondents
to show that in fact certain applicants were not available for employment,
if such were the case. Assuming that the record establishes on the whole
that a bona fide application for employment of a group was made and dis-
criminatorily refused, and that a substantial number of the applicants were
available for employment, the burden of disentangling the consequences flowing
from their unfair labor practices rests upon Respondents. That unavailability
for employment is a matter of defense rather than an essential part of a
prima facie case is plainly set forth by the Board in Lecvington Telephone Com-
pany, 39 NLRB 1153. In that case it was alleged that the respondent had
discriminatorily refused to reinstate certain former employees. The respondent
urged that they were unavailable for employment, but failed to establish this
contention. No proof concerning availability other than the application for
reinstatement was offered by the General Counsel. The Board found that the
employees had been discriminated against. The case makes it clear that the
burden of establishing unavailability for employment is upon the respondent.
By proving an application for employment and a discriminatory refusal to
hire, the General Counsel makes out a prima facie case. He is not required
to anticipate and refute possible defenses which Respondent may raise, such as
unavailability for employment. For these reasons, I find Respondent's contention
without merit.
Having considered the various defenses raised by Respondents, I return to a
'consideration of the specific employees alleged to have been discriminatorily
'refused reinstatement. They include the 53 persons listed in Appendix A, and
-certain former employees of Northland. For various reasons, I find that some
of the 53 were not discriminatorily refused reinstatement. Some were not
'employees of Alaska at the time of the strike, some were supervisors not entitled
to the protection of the Act, and some held positions on ships which were not
operated after the strike. With respect to the former employees of Northland,
the General Counsel contended that those employees who were employed at the
time of the strike by Northland on ships which were operated after the strike by
'Alaska became by virtue of such operation employees of Alaska entitled to rein-
statement to their positions, and were thus discriminatorily refused reinstate-
ment by the execution and enforcement of the contract in the same manner as
the others. This contention must be analyzed in the light of the established
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
principle that striking employees are entitled to reinstatement in their positions
by their employer. The General Counsel contended that Alaska became the
employer of Northland's employees, because it operated certain ships after the
strike which were operated before the strike by Northland, and because the
principle owners of Northland were also officers and controlling stockholders
of Alaska. The record shows that Northland is a partnership composed of 3
partners, all of whom are also officers of Alaska, and 2 of whom own the con-
trolling stock of Alaska. It also shows that Alaska operated several ships
after the strike which were operated by Northland before the strike. The record
also shows that Northland continued in existence after the strike, and that
Alaska was in no sense a successor in interest. Upon these facts, the General
Counsel contends that Alaska became the employer of Northland's employees
on these ships, and thus was obligated to recall and reinstate these employees
in the same manner as its own employees.
I cannot agree with the General Counsel's contention. As of September 2,
1948, the start of the strike, these employees were employees of Northland.
Northland continued in existence after the strike. The mere fact that the con-
trolling ownership of two separate entities is the same does not establish one
as the successor to the other, which would seem essential to sustain the conten-
tion. The evidence clearly showed that Alaska in no sense succeeded to any
rights, duties, liabilities, or responsibilities of Northland, which has continued
in existence. To charge a different company with the liabilities of another
would require considerably greater proof than \vas offered here. Three ves-
sels which bad been operated by Northland, the Alaska, the Lucidor, and the
Palisana, were operated by Alaska after the strike. Both the Lucidor and
Palisana were owned by the United States, and chartered by Northland. After
the strike began, they were returned to the United States. Alaska chartered
them from the United States after the strike ended. The S. S. Alaska was
owned by Alaska and bare boat chartered to Northland in 1947. During the
strike it was redelivered to Alaska and operated by it after the strike. The
responsibility of reinstating striking employees to their positions after a strike
rests upon their employer. Upon the above facts, which constituted all the
evidence offered, I cannot find that Alaska succeeded to such responsibility.
It is common knowledge that in the maritime industry ships continually are oper-
ated under charter by others than the owner. It seems self-evident that the
employees of one operator do not become the employees of another, merely
-because a ship is redelivered to its owner and subsequently chartered by another
operator, or operated by the owner. This reduces the General Counsel's con-
tention (which was not urged in his brief), to the fact of common ownership.
The fact that two separate entities are commonly owned does not establish
that the employees of one are the employees of the other. A far greater showing
than was made would have to be made in order to justify such a conclusion,
I am convinced, and so find, that Alaska did not become the employer of former
Northland employees on ships operated by Northland at the time of the strike,
by virtue of the operation of such ships after the strike.
With respect to the 53 persons listed in Appendix A, the record reveals and I
`find that 28 of them were employed by Alaska at the time of the strike who
were entitled to reinstatement after the strike. One of them, William Lewis
Allen, had been employed by Alaska as a chief butcher on the S. S. Aleutian.
He was entitled to reinstatement when the Aleutian sailed. However, he testi-
fied that he had secured another job, and would not have accepted his position
on the Aleutian when it sailed even if offered it. Accordingly, no finding of
discriminatory refusal to reinstate will be made with respect to Allen. The re-
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 649
uiaining 27 employees entitled to reinstatement are listed in Appendix B. I
bud that by the execution and observance of the contract, MCS caused and
Alaska effectuated the discriminatory refusal to reinstate the employees listed
in Appendix B, in violation of Section 8 (b) (2) and 8 (a) (3) respectively.
By discriminatorily refusing to reinstate these employees, Alaska interfered
with, restrained, and coerced them in the exercise of rights guaranteed by
Section 7, in violation of Section 8 (a) (1). As previously found the execution
and observance of the contract by MCS was not a violation of Section
8 (b) (1) .(A). However, it is well settled that causing discrimination against
specific individuals is violative of Section 8 (b) (1) (A) 21 Accordingly, I find
that by causing Alaska to discriminatorily refuse to reinstate these employees,
MCS restrained and coerced them in the exercise of the rights guaranteed by
Section 7, in violation of Section 8 (b) (1) (A).
I find no discriminatory refusal to reinstate the remaining 25 individuals
listed in Appendix A for the following reasons : (1) Five of them, Baker, Krause,
Lande, Martin, and Thuesen, were chief stewards on Alaska ships at the time
of the strike. The record establishes that chief stewards are in charge of the
stewards department on a ship, and have the power to suspend, discharge, pro-
mote, assign, and discipline the employees, as well as responsibly, direct them
in their work. As such, they are supervisors within the meaning of the Act,
as the Board has frequently found, and are not entitled to the protection of the
Act; (2) four of them, Bickford, Blanes, Jenkins, and Makemson, were employed
by Alaska at the time of the strike on ships which were not operated by Alaska
after the strike. Because their positions ceased to exist, no finding of discrim-
inatory refusal to reinstate them is made. (Baker and Lande, found above to be
supervisors, also are included in this category) ; (3) the evidence reveals, and
I find, that the remaining 16 were not employed by Alaska at the time of the
strike, and thus were not employees entitled to reinstatement. They are listed
in Appendix C. (Thuesen, who was found above to be a supervisor, also was
not employed by Alaska at the time of the strike). The record reveals that
Thomas J. Howard was employed by American Mail on the S. S. Island Mail
at the time of the strike, and thus was entitled to reinstatement. Although
it has been found that because of the discriminatory provisions of the contract
an application for reinstatement was both futile and unnecessary, Howard did
make personal application to American Mail's port steward for reinstatement to
his former position, and because of the contract was refused and referred to
MOS by American Mail. Howard was not reinstated. I find that by the execu-
tion and observance of the contract, MCS caused American Mail discriminatorily
to refuse to reinstate Howard, thereby restraining and coercing him in the
exercise of rights guaranteed in Section 7, in violation of Section 8 (b) (1) (A)
and (2), and American Mail discriminatorily refused to reinstate Howard, thereby
interfering with, restraining, and coercing him in the exercise of rights guaran-
teed in Section 7, in violation of Section 8 (a) (1) and (3).
Although the complaint alleged that Alaska, American Mail and P & T dis-
criminatorily discharged the 53 employees named in Appendix A, and that MCS
caused such discrimination, there was no proof ordered or contention made that
any of the 53 were employees of American Mail or P & T entitled to reinstatement.
Accordingly, I find that American Mail and P & T did not discriminatorily dis-
charge or refuse to reinstate any of the employees named in Appendix A, and
that MCS did not cause them to do so.
n Clara-Val Packing Company, 87 NLRB 703; Air Products, Incoi porated, 91 NLRB 1381.
as Wilson Transit Company, 75 NLRB 181; Kinsman Transit Company, 75 NLRB 150;
Cities Service Oil Company, 80 NLRB 1512 ; Nicholson Transit Company, 85 NLRB 955.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The refusals to hire
(1) The individual applications
The complaint, alleged that 11 persons individually applied to Alaska for
employment on various dates after the strike, that because of the contract Alaska
discriminatorily refused to employ them, and that MCS caused Alaska so to dis-
criminate. The allegations concerning Franklin Barksdale were dismissed at
the hearing upon the General Counsel's motion. The remaining 10 are Baker,
Birdsall, Campbell, Charlesworth, Jewell, McMonagle, Don Rotan, Leslie Smith,
Starnes, and Thuesen. Although Baker, Birdsall, Charlesworth, and Don Rotan
all testified, no evidence was offered that any of them individually applied for
employment. Accordingly, I find no violation with respect to them. The com-
plaint alleged that Campbell applied for a position on May 2, 1949. The record
reveals that he did. However, it is unnecessary to pass upon this allegation.
Campbell applied for reinstatement to his former position, not for new employ-
ment . I have already found that Campbell was discriminatorily refused rein-
statement to his position after the strike, as one of the 28 employees entitled
to reinstatement. Accordingly, I find no separate violation under this allegation
as to Campbell.
The complaint alleged that Jewell applied to Alaska for a position on or
about March 24, 1949. The record reveals that he did contact Alaska about
that time. Jewell said that he asked for employment, and that Jones told him
he was acceptable for employment but because of the contract he would have to
go to MOS. MCS had previously expelled Jewell for alleged rival union activity,
had taken away his membership book, and Ward had t6ld him that he would
never go to sea again . Jewell testified on cross-examination that he told Jones
he had been expelled from MOS. Jones admitted receiving the call, but con-
tended that Jewell only asked if he were acceptable for employment. Jones
did not deny, but said he could not recall, that he had told Jewell he would have
to ship out through MCS. The preponderance of credible evidence convinces
me, and I find , that Jewell did apply to Alaska for employment, and was refused
and referred to MCS because of the contract. Alaska contended that even if
this were true it was not discriminatory, because use of the hiring hall was the
normal , customary manner of obtaining employment, and Jewell should have
applied to MCS. This contention has previously been considered and rejected.
For the reasons heretofore stated, an application to MCS was both futile and
dangerous. Because of the contract requiring preference for MCS members,
Alaska must have known that an application to MCS by one both an expelled
member of MCS and a member of a rival union was useless. By refusing to
employ a qualified applicant, and referring him to MCS, Alaska clearly was
enforcing the illegal preference provisions of the contract.
The complaint alleged that McMonagle applied to Alaska for a position on
or about October 30, 1948, and May 31, 1949. No evidence concerning October
30 was offered and accordingly no finding is made. The evidence is undisputed
that McMonagle did apply for a position about May 31. He spoke to Jones
and Hubbard, then port steward of Alaska. He asked for employment, and
was told that he would have to apply to MCS. This was not denied. Prior
to this application McMonagle had not only been blacklisted by MCS, but when
be visited MCS to ascertain why, had been assaulted to an extent requiring
hospitalization. McMonagle of course did not go to MCS again. Alaska again
contended that he should have applied to MCS, which contention has been
found to be without merit. Alaska also contended that McMonagle applied only
for a specific position which was not then vacant, and accordingly was not re-
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 651
fused employment . The record does not convince me of this. McMonagle testi-
fied that he asked for employment and also that he asked , "how about my old
job back on the Square Sinnetf" McMonagle had formerly held a job with
Alaska on the Square Sonnet , but not at the time of the strike . Alaska would
confine the meaning of this testimony to a request for that specific position and
no other . I cannot agree . The preponderance of evidence convinces me that
MeMonagle asked for employment, and suggested his former position. Such
a suggestion would seem entirely natural . Nothing in the record indicates that
he limited his request to that position-in fact the contrary is established by
his evidence . , Alaska also contended that McMonagle 's application for em-
ployment was not bona fide because he testified that he would not accept a
position alone on a ship employing all other steward personnel from MCS
because of fear of his life . This same contention was advanced with respect
to the group applications hereinafter considered, and will be dealt with then.
I find no merit in this defense, for reasons which I shall discuss later. I am
convinced and find that McMonagle applied to Alaska for employment, and
was rejected and referred to MCS because of the contract.
The complaint alleged that Leslie Smith applied to Alaska for employment
about December 13, 1948. Smith had been employed on the S. S. Alaska by
Northland before the strike, and Alaska was about to hire a crew and start
operating the ship. It is undisputed that Smith called Jones on December 13
and asked him about getting his job back on the S. S. Alaska and whether he
was acceptable for employment, to which Jones replied that Alaska had a con-
tract with MCS, and Smith would be accepted if he came through the regular
shipping channels. Smith , who was one of the leaders of the PMSU movement,
had been active in securing SUP pledge cards, and had stood no picket duty
during the strike, then called MCS and asked for his job on the S. S. Alaska.
Ward asked him if he was kidding, and then in a very loud voice told Smith
that if he had guts enough to walk into the MCS hall, he could have his job.
Ward then asked Smith where the hell he had been the past 3 months (the
period of the strike), and when Smith replied on vacation, Ward told him that
he had better take a God damn long one. It will be recalled that during this
period MCS had expelled and blacklisted a number of members found guilty of
rival union activity. Smith, as a leader of such activity, must have been known
to MCS. Ward's immediate answer, "Are you kidding?" reveals his knowledge
of Smith's activities. This evidence is additional proof of the futility of non-
members applying to MCS . Unlike McMonagle , in this instance no contention
could be made that the job was not vacant, because Alaska did not hire a crew
for the S. S. Alaska until the next day. Alaska contended that Smith was not
applying 'for a position but merely seeking to ascertain his acceptability for
employment. The undisputed evidence convinces me to the contrary, and I find
that Smith applied to Alaska for employment, and was refused and referred to
MCS because of the contract.
The complaint alleged that Starnes applied to Alaska for employment about
December 7, 1948. Starnes testified that he talked to Jones on December 7
and asked him for his old job as printer-waiter on the S. S. Bara'noff, which was
due to sail in a few days. Jones told him he could not return to work without
a slip from MCS. Starnes called MCS and Ward asked him where he had been
and then told him to take a long vacation and hung up . Starnes was employed
by Alaska on the Barano ff at the time of the strike, so was an employee entitled
to reinstatement. For reasons not disclosed , he was not included in this category
by the General Counsel, and accordingly his name does not appear among those
alleged to be entitled to reinstatement. Jones denied that he ever talked to
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Starnes in December, or that Starnes ever asked him for employment. The
preponderance of credible evidence persuades me, and I find, that Starnes did
apply for his old job on December 7. His treatment by both Alaska and MCS
is illustrative of the effect given to the oral agreement. This was only the day
after the strike ended, and yet Alaska contended that even if he had applied,
no discrimination could be found because his job had been filled the day before.
If true, it would establish that Alaska did not give the employees entitled to
reinstatement even 1 day to apply for their positions which Alaska and MCS
had agreed they should have. I can perceive no merit in this defense. One
day after the strike an employee asks for a position which Alaska concedes he
is entitled to under the oral agreement. Yet he is refused and referred to MCS,
where he receives the same treatment accorded all other former members. I
find that Starnes applied to Alaska for employment and was refused and re-
ferred to MCS because of the contract.
The complaint alleged that Thuesen applied to Alaska for employment about
January 15, 1949. Thuesen testified that on January 5 he talked to Jones and
asked for a job going to sea. Jones told him that that was impossible because
all applicants had to go through the MCS hall under the contract. Previously
the same day Thuesen had called MCS and asked to go to sea, and Ward had
laughed at him and told him that he was out of MCS. Thuesen had been
expelled by MCS during the strike. Jones admitted talking to Thuesen but
denied that he asked for a job. Jones said that Thuesen was only asking if
he were acceptable for employment upon the advice of a Board field examiner.
Thuesen denied this. I find that Thuesen did ask for employment, and was
refused because of the contract.
As has been found, Thuesen was last employed by Alaska as a chief steward,
a supervisor. However, he applied for any position for which he was qualified,
as he so testified. He was not an employee of Alaska at the time of the strike.
It is undisputed that he had ratings for practically all of the positions in the
stewards department, which is true of any chief steward. Because of the
nature of the industry, employees sail in different ratings frequently. A man
may sail on one voyage as a chief steward, and then be dispatched and sail
on another ship as a messman , second steward, waiter or any other of the many
classifications held below rank of chief steward, none of which are supervisors.
This is due to the rotary hiring system previously explained. As an applicant
for any position, Thuesen was in the same category as any other applicant.
The fact that he had once been a supervisor does not deprive him of the protection
.of the Act in future relationships 23
Summarizing, I find that Alaska discriminatorily refused to employ Jewell,
McMonagle , Leslie Smith, Starnes, and Thuesen because of the provisions of
the contract, and that MCS caused such discrimination, in violation of Section
8 (a) (3) and 8 (b) (2) respectively. By such discrimination, Alaska inter-
fered with, restrained, and coerced these employees in violation of Section 8 (a)
(1). By causing such discrimination, MCS restrained and coerced them in
violation of Section 8 (b) (1) (A).
(2) The alleged application of January 11, 1949
The complaint alleged that about January 5, 1949, PMSU presented a list of
54 persons to Alaska with a request for a written statement regarding their
acceptability for employment, and that about January 11 PMSU contacted Alaska
for its reply and was advised orally that all were acceptable, but before taking
23 John Hancock Mutual Life Insurance Company, 92 NLRB 122.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 653
any action Alaska wished to consult its attorneys, because of the hiring pro-
visions of the contract. Although this allegation was never amended at the
hearing, the General Counsel urged a finding of discriminatory refusal to em-
ploy the 54 persons . The evidence in the record revealed that the facts were
substantially as alleged in the complaint. The list was delivered to. Jones
on January 5 by Charlesworth and Don Rotan, Don's brother. Both Charles-
worth and Jones said that the request was for a written statement as to
acceptability for employment. Dan Rotan did not testify about this incident.
Jones told them that he would take it up with Zumdieck . On January 11,
-Don Rotan, Smith, and Baker -contacted Jones and- Zumdieck for the -reply.
Both Jones and Zumdieck told them that the men were acceptable, but before
Alaska would give a written statement to that effect, it wished to consult its
attorneys . It was undisputed in the record that PMSU wanted to establish
the acceptability of the individuals for employment because of a pending unfair
labor practice charge against MCS. Some discussion took place about the
contract with MCS and its hiring provisions. All of the witnesses agreed sub-
stantially on the above facts. The only variance came in the testimony of Don
Rotan . While corroborating the above facts, Rotan also testified that he asked
Zumdieck to hire the men, and that Zumdieck refused to do so because of the
contract. This was denied by Zumdieck and Jones. Smith and Baker, PMSU
members who were also present, did not corroborate this testimony. Rotan
admitted that the purpose of the call was to find out if the men were acceptable,
and to get a written statement to that effect because of the pending charge
against MCS. In addition, Rotan testified that the list of January 5 included
names ; secured from, pledge cards, as well as persons who had authorized him
to apply for employment. The preponderance of credible evidence convinces
me, and I find , that no request for employment was made on either January
5 or 11, and that the only request made dealt with the acceptability of the
listed persons for employment. Alaska stated the persons listed were acceptable
for employment, but upon advice of counsel refused to furnish such a statement
in writing. Accordingly I find that Alaska did not discriminatorily refuse to
employ anyone on this occasion and that MCS caused no discrimination.
(3) The application of March 31, 1949
The.complaint alleged that-on March 31 Don.Rotan wrote Jones, enclosing a
list of 92 persons and as their agent applying for employment with Alaska, either
in the position last held with Alaska or as a messman , if not previously employed
by Alaska. The complaint further alleged that Respondent Companies dis-
criminatorily refused to employ any of the applicants because of the contract,
and that MCS caused such discrimination. The 92 applicants are listed in
Appendix D. The proof concerning this application was limited to Alaska, to
whom it was made, and accordingly no violation is found by any other Respond-
ent Company under this allegation. On April 11 Zumdieck acknowledged the
application by a letter, but took no action thereon and stated the matter of
employment was the subject of pending unfair labor practice charges, together
with SUP's petition for certification. In the application Rotan had pointed out
that the applicants were either unable or unwilling to use the facilities of MCS
because of its discrimination against them. The above found facts were
undisputed.
It has previously been found that all of these applicants authorized Rotan as
their agent to seek employment. Although this issue was strenuously litigated,
all of the evidence received established that Rotan had been authorized to act
as such agent.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A number of Respondents' defenses have been considered. They were also
advanced as to this application. In addition, Respondents made several other
contentions. One of them was based on the wording of the application. Respond-
ents contended that because this request for employment was for the position
last held with Alaska, no refusal to employ could be found if that position on
the ship on which the applicant last worked was filled. I do not believe such a
limited construction is warranted. The request was for a job, in the position
last held, or in the position of messman, if the applicant had not worked for
Alaska. The normal interpretation of this request would be that if a person
last worked as a waiter, he was applying for a position as a waiter. The probable
reason for such a request was because Alaska would know from its records
that the person was qualified for such a position. To construe the application
as limited to a position as a waiter on the Aleutian, for example, and no other
ship, because that was the last position held, does not seem justified by the
'wording of the application. Alaska operated a large number of ships, with
similar positions on each. A general application for a position last held would
seem to refer to the rating, or position, and not the specific ship. This conclu-
sion is fortified by the accompanying request for the general position of messman,
if no rating with Alaska was on record. No request for a specific ship accom-
panied this. These applicants had been seeking work for some time. It would
appear to be a most strained construction to hold that if they requested a job
in the position last held, they were limiting their request to a specific ship.
Inasmuch as these positions or ratings are available on many if not most of the
ships, I find this contention to be without merit. As a result, it becomes im-
material to determine whether the requested position was available or not on a
specifio vessel at or after the time of the application. Respondents also con-
tended that the application was made on the basis that a group be employed, or
none, and for Alaska to have employed a group of these applicants would have
-been an unfair labor practice, because to do so would have been contributing
support to one union, discriminating against members of another, and bargain-
ing with one, when either a question of representation was pending. or another
union was the exclusive representative of Alaska's employees. In support of
this contention, Respondents offered certain evidence that Rotan previously had
requested Alaska to break out a vessel and employ the entire stewards crew
from PMSU, in order to aid SUP in its petition for certification. -Respondents
further urged that, because most of the applicants testified that they would not
accept employment alone and that they would not accept employment unless it
was approved by their union, the request for employment was not bona fide,
but an attempt to get Alaska to bargain with PMSU in derogation of the rights
,of the established representative. These contentions, although ably presented,
are not persuasive. It is of course elementary that it would not be an unfair
-labor practice for Alaska to employ persons belonging to another union. In
fact, the converse is true. It is unnecessary to determine whether Alaska would
have violated the Act in acceding to a demand that it hire all or a specific group
,of the applicants, to the exclusion of others, becauseno such a demand is evi-
denced by the record. The application was for the employment of all or any
part of the applicants. Nothing in the record supports the-position that it was
a request for a specific group or none, to the exclusion of others. Concededly,
Rotan was interested in aiding the petition for certification, and had previously
suggested that Alaska break out a ship and employ an entire crew from PMSU,
and also that Alaska bargain with PMSU. This request was rejected. There
is nothing upon which to infer that the application of March 31 was limited in
the same respect. Because Rotan was the organizer of PMSU, it does not follow
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 655
that'when he applied as agent for the applicants, he was merely seeking to aid
the organization and was not bona fidely requesting employment for each of
the individuals who had authorized him to do so. The language of the applica-
tion is clear and unambiguous, and in no way indicates that a specific group or
none must be hired. The evidence convinces me, and I find, that the application
was unconditional, and was not on the basis that a specific group must be em-
ployed, or none.
In further support of this position, Respondents rely upon the testimony of
most of the applicants that they would not accept offered employment unless it
was approved by PMSU, and that they would not accept employment alone on a
ship, if the rest of the stewards crew were members of MOS. Respondents urge
that this testimony proves that the application was not bona fide, but merely an
attempt either to aid SUP's petition for certification or to get Alaska to recognize
and bargain with PMSU. Upon first consideration, such testimony might appear
to support this contention. However, it must be considered in the light of the
history of employment in the maritime industry, and the convictions ingrained
in the minds of maritime employees by custom, personal experience and such
history. The background history of employment practices in the industry was
established in the record by numerous exhibits.
One of the major offenses, if not the worst, in the eyes of maritime employees
is what is referred to as "shipping off the dock," which in nontechnical language
merely means accepting employment directly from an employer without being
dispatched or approved by a union. The history of the industry and the testi-
mony of members of both PMSU and MSC clearly establishes this in the record.
Prior to 1935, employment conditions in the maritime industry were to say the
least deplorable. Living conditions and wages on ships were substandard.
Graft, bribery, corruption, and even immorality were attendant upon securing
employment. Employment was secured by appearing at the dock when a com-
pany was hiring. This hiring was delegated to an individual. Because of
'economic conditions, the number of applicants exceeded the number of jobs. As
a result, the person hiring was able to pick and choose, and obviously held great
economic power over the applicants. This system led to favoritism, bribery,
blacklisting, and many other evils. Seamen who were employed received low
pay and poor quarters, and were often in debt to pay the bribe necessary to
-secure the job. While on the beach, they stayed in boarding houses and ran up
bills: Exorbitant prices were charged, but the seamen were helpless and caught
in a vicious circle. The operator of the boarding house had arrangements
-whereby he controlled the securing of employment. To get a job, seamen lived
at his house. In order to repay their indebtedness, they assigned wages. Ob-
viously their position went from bad to worse. They had to pay the exorbitant
prices to get employment, and then had to accept employment on whatever terms
.were offered, because of their indebtedness. The foregoing is only a brief por-
tion of the history, but it serves to illustrate some of the reasons for existing
convictions among maritime employees. -
- In 1935 union hiring halls were established, and over the years conditions
for the employees have substantially improved. Better wages, living quarters,
and food, as well as freedom from the economic vise above described, resulted.
Employment was handled on a rotary basis among union members, as has been
described. With this background, the reasons are apparent why unions and
employees do not wish to return to former conditions. Hiring off the dock is
the first step in such a direction, which explains why it is in such ill-repute among
-employees of the industry. This is not to say that the present system is perfect.
The transfer of control of hiring to the unions presents them with opportunities
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for discrimination , as evidenced by the facts of this case. Nevertheless the con-
viction remains in the minds of practically all maritime employees that hiring
off the dock is indefensible. Even if they are not so convinced, they are well
aware of the , treatment accorded by union. members to ,anyone who does hire
off the dock.
With this background the testimony of the applicants that they would not
accept offered employment unless approved by their union becomes clear. It does
not, in my opinion, evidence a lack of good faith, or an attempt merely to aid
the bargaining position of PMSU._ Rather, it evidences that under no conditions
would they "hire off the dock." Accepting such employment without approval
of-their union would be violating principles of which they are convinced. Such
testimony does not demonstrate, as Respondents contend, that their applications
were not bona fide, and were made for the purpose of group employment only,
to aid the position of their union . Respondents were well aware of this estab-
lished conviction, and knew the answers they would receive. Under the cir-
cumstances, I do not find any evidence of lack of good faith by refusing to accept
employment off the dock.
The other point of testimony, that the applicants would not accept employment
alone on a ship, if the rest of the crew were members of MCS, is a facet of the
same principle. It is however augmented by a well-founded fear of injury
and even death. If the applicants accepted employment directly from the em-
ployers without union approval, it would be hiring off the dock. However, if
they accepted it with approval of their union, it would not be hiring off the dock
as far as their union was concerned, but might be so considered by members of
-a rival union. This is in effect attributable to so-called jurisdictional lines and
disputes. MCS has held the contracts for the stewards department of most
Pacific Coast ships for many years. These contracts have required dispatching
by MCS and preference for its members. Because MCS has the contract, it
considers any one who accepts employment without its approval as shipping
off the dock, even though this might technically not be true, because of another
union 's approval. Irrespective of the technicalities, the results are the same.
Anyone who wonld accept employment in the stewards department on a ship
under contract to MCS, even though dispatched by another union , would be
considered by MCS in the same category as a person shipping off the dock, and
so treated. The record reveals that a person who does so is in danger of injury
and even death. Under the circumstances, it is apparent why the - applicants
would not accept employment alone in a stewards department manned by MCS.
To say that such testimony reveals that the applications were not made in good
faith but for an ulterior motive is to ignore the facts. Substantially all of the
applicants testified they would accept a position if Alaska were to hire on a non-
discriminatory basis, choosing its employees from among MCS, PMSU and all
other applicants. The applicants, because of their years of service and seniority,
were aware that if Alaska did not enforce the discriminatory provisions of the
contract and hired on a nondiscriminatory basis it was highly improbable that
only one of them would be employed on a ship with the rest of the stewards de-
partment being entirely from MCS. Additionally, if Alaska had not agreed to
discriminate in favor of MCS members and had employed upon an impartial basis,
a substantial basis of MCS' reason for considering nonmember employees as
interlopers and scabs would have ceased to exist. This might well have had
the, effect of- alleviating the danger which- existed` 'under the circumstances. It
appears that Respondents have attempted to rely upon a well-known state of mind
and condition of the industry as a defense. I am convinced and find that the ap-
plications were made in good faith, and the. refusals to ship off the dock or accept
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 657
employment alone on a ship otherwise manned by MCS did not evidence an
ulterior motive in making the applications.
Respondents also urged that because there were few if any positions available
on March 31 , no discrimination could be found . The evidence reveals however
that in the normal turn-over which ocurred , sufficient positions became available
in the months following to have employed all of the applicants . Respondents
were aware of this fact , a normal and usual occurrence in the industry, when
the application was made. Respondents contend however that the application
was not a continuing one, and must be limited to its date, or at most a few days.
They insist that another application must be made, at or about the time a specific
job becomes available . The Board has rejected this contention under almost
identical circumstances . In the Daniel Hamm Drayage Company case, supra,
the company refused to employ applicants because of an Riegel closed -shop con-
tract , and contended in defense that no work was available . None was at the
time, but the company knew it would have work available in a short time. The
applicants did not reapply. Inasmuch as the company continued its discrimi-
natory referral and hiring arrangements , the Board found the applicants would
have received the same treatment upon reapplying , were not obliged to make such
a useless gesture, and had been discriminatorily refused employment . For the
reasons expressed by the Board , I find no merit in this defense.
Finally, Respondents contended that those applicants on the March 31 list
who had last been employed by Alaska as supervisors were not entitled to the
protection of the Act. It will be recalled that they were applying for the posi-
tions last held . As applicants for supervisory positions , Respondents contend
that they are not employees within the meaning of the Act, and thus are not
entitled to its protection . The evidence reveals that Baker , Heard , Krause,
Lande, Lattish , Martin , Schlossel , Siewick, Thuesen , and Whaley were last em-
ployed by Alaska as chief stewards . All except Schlossel and Thuesen were in-
cluded in the March 31 application . It would seem that it might result in
anomalous situations to find an applicant for a supervisory position an employee
entitled to the protection of the Act, and a supervisor not entitled to such pro-
tection immediately after being employed . However, the Board has determined
since the passage of the Act that an applicant for a supervisory position is an
employee entitled to the protection of the Act. In the Briggs Manufacturing
Company case " the respondent contended that an applicant for a supervisory
position was not an employee within the meaning of the Act. The Board, in
rejecting this contention, said :
Nor is our conclusion [that Quatro was an employee within the meaning
of the Act] altered by the fact that at the time of the violation of Section
8 (4) Quatro was an applicant for a supervisory position . He was a member
of the working class when he applied for a job. He did not acquire the
status of a supervisory employee of the respondent until he was hired after
the discrimination which violated Section 8 (4) took place. The violation
of Section 8 (4) took place before he was hired.
The Board made it plain that the amendments to the Act excluding super-
visors did not affect this conclusion , when it later said:
The respondent further argues that the case must be dismissed because the
1947 amendments exclude supervisors from the definition of "employee" in
Section 2 (3)'of the Act, and that Quatro as a supervisor is not entitled to the
protection and benefits of the Act. We have already pointed out that we do
24 75 NLRB 569.
658 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
not believe that Quatro i8 to be considered to have been a supervisor at the
time the violation of Section 8 (4) took place. (Emphasis supplied.)
For the reasons stated, I find no merit in this defense.
The preponderance of credible evidence convinces me, and I find, that Alaska
discriminatorily refused to employ the applicants listed in Appendix D because
of the provisions of the contract, and that MCS caused such discrimination, in
violation of Section 8 (a) (3) and 8 (b) (2) respectively. By such discrimina-
tion, Alaska interfered with, restrained, and coerced these employees in violation
of Section 8 (a) (1). By causing such discrimination, MCS restrained and
coerced these employees in violation of Section 8 (b) (1) (A).
(4) The application of May 7, 1949
The complaint alleged that on or about May 7 Rotan, having ascertained that
Alaska intended to begin operating the S. S. Aleutian, applied as their agent
for the employment of 78 persons, a complete stewards complement for the
Aleutian, that on or about May 12, Alaska discriminatorily refused to employ
any of the applicants because of the contract, and that MCS caused such,
discrimintion. The evidence was substantially undisputed. On May 7 Rotan
submitted an application to Jones for all positions except chief steward in the
stewards department of the Aleutian, listing therein 1 person for each position.
The 78 applicants are listed in Appendix E. The Aleutian had not previously
been operated after the strike and as a result needed an entire crew. Instead
of applying generally for positions as he did on March 31, Rotan applied by
submitting the name of a specific person for each position. On May 12, Rotan
contacted Jones about the application and was referred to Dobrin, Alaska's
counsel. Dobrin advised Rotan that Alaska would not employ the applicants.
Rotan said that Dobrin advanced as reasons the contract with MCS and the
possibility of a strike by MCS if the applicants were hired . Dobrin denied
advancing such reasons. In all other respects, the facts were undisputed. None
of the applicants was hired. On May 13, Alaska ordered a crew from MCS, and on
May 14, hired the entire stewards complement from MCS. As has been found,
6 of the 78 applicants were employees on the Aleutian at the time of the strike
entitled to reinstatement. Alaska requested MCS to dispatch them, but no
further action was taken by either Alaska or MCS and none of the applicants
was hired.
Respondents advanced many of the same defenses heretofore discussed and
found to be without merit. Among them they reiterated the defense to the
application of March 31, that this was not a bona fide application, but a demand
to employ the entire group or none, which Respondents contend would itself
have been an unfair labor practice. Exactly in what respect it would have been
an unfair labor practice is not clear . As has been stated, Respondents contended
that it would have been recognition of or bargaining with one union while a
question of -representation was pending or another union was the exclusive
representative, illegal support to one union, and discrimination against members
of MCS. It is not clear how such a conclusion is reached. I know of no decisions
which hold that employing applicants amounts to recognition or bargaining with
their union, because they happen to belong to one union. The record reveals
no other applicants whatsoever for the positions. To have employed them
might have resulted in improving PMSU's position on the question of repre-
sentation, but in the absence of any other applicants, I cannot see how this
could be construed an illegal support. If others, particularly members of MCS,
were applicants , then naturally preferring members of one union or another
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 659
might constitute illegal support. For the same reason, I see nothing which
would amount to discrimination against MCS. None of its members had applied.
The only discrimination conceivable would have been in failing to prefer members
of MCS, the illegal requirement of the contract. Such, of course, would not be
discrimination under the Act. By contending that it would be discriminatory
against members of MCS to employ all of these applicants, Respondents were
in fact expressing their intent to live up to the obligations of the contract re-
quiring preference for such members, in the absence of any applications from
MCS members.
However, for the same reasons discussed in connection with the application
of March 31, I find no evidence to support the contention that this application
was on an all or nothing basis. Most of Respondents' reasons for so construing it
have been considered, such as the testimony of the individual applicants, Rotan's
earlier request for recognition and aid therein, and Rotan being the organizer and
leader of PMSU. In addition, Respondents urged such construction because
the application listed one specific individual for each specific job on the Aleutian,
in the nature of a crew list. Respondents contended this also proved the applica-
tion was not bona fide, but a demand for employment of an entire stewards'
crew or none. This contention is not sound. PMSU knew that Alaska was going
to employ an entire crew for the Aleutian, having been so advised by Alaska.
Practically all of its members had worked very little in the 6 months following
the strike, and were anxious to secure employment. Naturally they applied for
all of the Positions. Instead of applying for the group generally, as was done
on March 31, they attempted to submit a list of persons with ratings and qualifica-
tions for each of the positions on the Aleutian. On March 31, no specific jobs
were known to them. By picking members who were known to Alaska to have
the requisite qualifications, PMSU was able to submit an application which met
that test, in any event. Respondents argue that because more names were not
submitted than there were jobs, the application evidenced a demand for all or
none . Only 78 jobs were available, and PMSU submitted an application of 78
persons qualified to fill the respective positions. Choosing these applicants
from among its members and requesting employment for them does not evidence
a demand for all or none. Admittedly PMSU desired all of the jobs, and hoped to
get them. This, however, does not support Respondents' contention. The
preponderance of the testimony in the record also reveals the contrary. A
number of the applicants testified that they applied for all of the jobs , hoping
to get some, or as many as possible. On the other hand, one of them, Campbell,
testified that he personnally wanted Alaska to hire a full crew from PMSU, that
he would have accepted a job if PMSU had the full crew, and that he would
not accept the job alone. It will be noted that he did not testify that he would
not have accepted a job if only part of the crew were employed from PMSU.
The reasons existing for not accepting it alone have been considered. Only one
of them, Green, testified that he would not have accepted a position if offered
unless the entire stewards crew were hired from PMSU. There was no evidence
that this represented a condition of the application, or was other than his
personal position. Even this testimony of Green and Campbell, which certainly
does not preponderate, is not persuasive that the application was on an all or
none basis. In addition, they were not officers of PMSLT or participants in the
submission of the application. Respondents' contention amounts to arguing that
a request for all of the positions should be equated with a demand for all or
none. This is obviously unsound.
The preponderance of credible evidence convinces me, and I find, that Alaska
discriminatorily refused to employ the applicants listed in Appendix E because
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the provisions of the contract, and that MC'S caused such discrimination, in
violation of Section 8 (a) (3) and 8 (b) (2) respectively. By such discrimina-
tion, Alaska interfered with, restrained, and coerced these employees in viola-
tion of Section 8 (a) (1). By causing such discrimination, MCS restrained and
coerced these employees in violation of Section 8 (b) (1) (A).
Although the complaint alleged that all of Respondent Companies discrimina-
torily refused to employ the individual applicants and the applicants of January
11, March 31, and May 7, no proof was offered of any applications to others than
Alaska. Accordingly, no such violation will be found.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in Section III, above, occurring in
connection with the operations of Respondent Companies described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and between the several States and foreign
countries, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Because it has been found that Respondents have engaged in certain unfair
labor practices, it will be recommended that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that by the execution and enforcement of the contract,
Respondent Companies have engaged in unfair labor practices within the mean-
ing of Section 8 (a) (1), (2), and (3), and MCS has engaged in unfair labor
practices within the meaning of Section 8 (b) (2). I shall therefore recommend
that Respondent Companies cease and desist from such conduct, and withdraw
all recognition from MCS and cease giving effect to the contract,R6 or any modifi-
cation, extension, supplement or renewal thereof, unless and until MCS has been
certified by the Board. 'I shall also recommend that MCS cease and desist
from such conduct, and cease giving effect to the contract, or any modification,
extension, supplement, or renewal thereof, unless and until it has been certified
by the Board.
It'has been found that American Mail discriminatorily refused to reinstate
Howard, that Alaska discriminatorily refused to reinstate the 27 employees
listed in Appendix B, and that Alaska discriminatorily refused to employ the
individual applicants Jewell, McMonagle, Leslie Smith, Starnes, and Thuesen,
the 92 employees listed in Appendix D, and the"78 employees listed in Appendix
E, all in violation of Sectionr8 (a) (1) -and (3) of the Act. As previously noted,
Joseph Green, one of the applicants listed in both Appendices D and E, testified
unequivocably that he would not have accepted a position if offered unless the
entire crew were hired from PMSU. No other applicant so testified. Under
the circumstances, I do not consider Green is entitled to reinstatement and back
pay, because his application was based upon a condition which Alaska was not
required to meet. Martin and Siebert, employees listed in Appendix D, are now
deceased. I shall therefore recommend that American Mail offer Howard, and
that Alaska offer each of the 27 employees listed in Appendix B, immediate and
20 Nothing herein shall be deemed to require Respondent Companies to vary or abandon
any substantive provision of such contract, or to prejudice the assertion by employees of.
any rights they may have acquired thereunder.
21 Juliua Resnick, Inc., supra ; Pacific Maritime Association, 89 NLRB 894.
PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 661
full reinstatement to his former or substantially equivalent position" without
prejudice to his seniority or other rights and privileges, and that Alaska im-
mediately offer Jewell, MeMonagle, Leslie Smith, Starnes, Thuesen, and each of
the employees listed in Appendices D and E, except Green, Martin, and Siebert,
employment in the respective positions applied for or substantially equivalent
positions ".3
Having further found that MCS caused American Mail and Alaska to so dis-
criminate in regard to the above-named employees, I shall recommend that MCS
notify American Mail and Alaska, in writing, that it has no objection to the
employment of the above-named employees, respectively, and that it requests
American. Mail to offer Howard and Alaska to offer each of the other above-
named employees immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and other rights and
privileges, or immediate employment in the position applied for or a substantially
equivalent position, as the case may be.
I shall further recommend that MC'S and American Mail jointly and severally
make Howard, that MOS and Alaska jointly and severally make the above-named
employees, and that MCS and Alaska jointly and severally make the per-
sonal representatives of Martin and Siebert, whole for any loss of pay they
may have suffered by reason of the discrimination against them. In accordance
with Board policy," I shall recommend that the loss of pay be computed on the
basis of each separate calendar quarter or portion thereof during the period
from the first 80 discriminatory denial of reinstatement or employment to the date
of offer of reinstatement or instatement, and in the case of Martin and Siebert,
to the respective dates when they became physically unable to work." The cal-
endar quarters shall begin with the first day of January, April, July, and October.
Loss of pay shall be determined by deducting from a sum equal to that which
each employee would normally have earned for each quarter, or portion thereof,
his net earnings," if any, in other employment during that period. Earnings in
one particular quarter shall have no- effect upon the back-pay liability for any
other quarter. Alaska and American Mail shall make available to the Board,
upon request, payroll and other records to facilitate the checking of the amount
of back pay due." Liability for further back pay shall terminate against MCS
5 days after the date upon which MCS serves upon Alaska and American.Mail
the written notices referred to above.34
For .the reasons expressed by the Board in the Newman I and Acme Mattress
cases,86 I shall recommend that Alaska, American Mail, and MCS cease and
desist from infringing in any manner upon the rights guaranteed in Section 7
of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
27The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch,
65 NLRB 827.
23 Idem.
l3 F. W. Woolworth Company, 90 NLRB 289'.
80 A number of the employees are included in more than one of the separate refusals to
reinstate or employ.
31 N. L. R. B. v. Revlon Product8 Corporation, 144 F. 2d 88 (C. A. 2) ; Interstate Engi-
neering Corporation, 83 NLRB 126; Salant & Salant, Incorporated, 92 NLRB 417.
32" Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N. L. R. B.,
311 II S. 7.
33 F. W. Woolworth Company, supra
34 General American Aerocoach, 90 NLRB 239.
35 Ir M. Newman, 85 NLRB 725 ; Acme Mattress Company, Inc., 91 NLRB 1010.
998666-vol. 98-53-43
662 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAw
1. Respondent Companies are engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. MCS, and PMSU are labor organizations within the meaning of Section 2
(5) of the Act.
3. By the execution and enforcement of the contract of December 2, 1948,
Respondent Companies have engaged and are engaging in unfair labor practices
within the meaning of Section 8 (a) (1), (2 ), and (3 ) of the Act.
4. By the execution and enforcement of the contract , MCS has engaged and
is engaged in unfair labor practice 's within the meaning of Section 8 (b) (2)
of the Act.
5. By discriminating in regard to the hire and tenure of employment of the
employees listed above in "The Remedy" section , Alaska and American Mail
have engaged and are engaging in unfair labor practices within the meaning
of Section 8 (a) (1) and (3) of the Act.
6. By causing Alaska and American Mail to discriminate against said em-
ployees in violation of Section 8 (a) (3) of the Act, MCS, has engaged and is
engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A)
and (2 ) of the Act.
7. By restraining and coercing employees of Respondent Companies in the
exercise of the rights guaranteed in Section 7 of the Act, MCS has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (b) (1)
(A) of the Act.
8. The aforesaid ' unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
9. Respondent Companies have not engaged in the unfair labor practices, as
alleged in the complaint, of discriminatorily refusing to reinstate Allen, Baker,
Krause, Lande, Martin, Theusen, Bickford, Blanes, Jenkins, Makemson, former,
employees of Northland, and the 16 employees listed in Appendix C ; of dis-
criminatorily refusing to employ upon individual application Baker, Barksdale,
Birdsall , Campbell , Charlesworth , and Don Rotan ; and of discriminatorily
refusing to employ the applicants of January 11, 1949; and MCS has not engaged,
as alleged in the complaint , in the unfair labor practice of causing such
discrimination.
10. P & T has not engaged in the unfair labor practice, as alleged in the
complaint, of discriminatorily refusing to reinstate any employees, and MCS
has not engaged in the unfair labor practice of causing such discrimination.
11. PASA, PMA, American Mail, and P & T have not engaged in the unfair
labor practices, as alleged in the complaint, of discriminatorily refusing to
employ any employees, and MCS has not engaged in the unfair labor practice
of causing such discrimination.
12. MCS has not engaged in the unfair labor practices , as alleged in the com-
plaint, of attempting to cause ]3espondent Companies to discriminate against
its employees by the 1948 strike and the distribution of a blacklist to other
unions.
13. MCS has not engaged in the unfair labor practices , as alleged in the com-
plaint , of restraining and coercing employees of Respondent Companies by the
execution and enforcement of the contract and by the maintenance of armed
guards at its hiring hall.
[Recommendations omitted from publication in this volume.]