National Union of Marine Cooks and Stewards

In the Matter of NATIONAL UNION OF MARINE COOKS AND STEWARDS, AND PACIFIC COAST FIREMEN , OILERS, WATERTENDERS & WIPERS AS- SOCIATION and IRWIN-LYONS LUMBER COMPANY Case Nos. 36-CD-2 and 36-CD-3.-Decided May 3,1949 DECISION AND ORDER DENYING MOTION FOR REHEARING On April 8, 1949, the Board issued in this proceeding a Decision and Determination of Dispute.' Thereafter, on April 18, 1949, the Respondents filed with the Board a Petition for Rehearing, requesting that the Board set aside the said Decision and Determination of Dis- pute and granting a rehearing in this matter. The Respondents' mo- tion was opposed by the Employer and the Sailors Union of the Pacific, the Intervenor herein. The Board has considered the Respondents' motion and all matters filed in support thereof 2 and in opposition thereto. The Respondents assert that Section 8 of the Administrative Pro- cedure Act applies to a proceeding under Section 10 (k) of the National Labor Relations Act, as amended. We do not agree. Under Section 202.32 of the Board's Rules and Regulations-Series 5, as amended, the hearing under Section 10 (k) is non-adversary in character, and, ac- cording to the procedure adopted therefor, conducted in the same way as a hearing in a representation proceeding. The Board adopted such procedure because the decision in the proceedings under Section 10 (k) is a preliminary administrative determination made for the pur- pose of attempting to resolve a dispute within the meaning of that section; the unfair labor practice itself is litigated at a subsequent hearing before a Trial Examiner in the event the dispute remains un- resolved. It is to the subsequent adversary hearing, which leads to a final Board adjudication, that Section 8 of the Administrative Pro- cedure Act applies. Nor can we accept the Respondents' contention that, under the cir- cumstances present in this case, an employer may be "required" to hire only members of a union, because such union may have tra- ditionally "supplied" employees in a given industry or in a specific 182 N. L. R. B. 916. 2 Including, among other things, the Respondents ' reply brief 83 N. L. R. B., No. 43. 341 844340-50-vol 83-23 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department, area, or unit .3 In our decision, we found that the Re- spondents do not represent and have not represented any of the Company's employees, and that the Respondents have no Board certi- fication, order, or contractual rights with respect to these employees. To adopt the Respondents' position, in the face of these findings, would, in our opinion, interfere with an employer's freedom to hire, contrary to the policy of the Amended. Act.4 By imposing member- ship in a given union as a condition of original and continued employ- ment, the Respondents would impose a closed shop on employees, in derogation of the rights guaranteed employees by Section 7 of the Act, and in violation of the express proscription against the closed shop contained in Section 8 (a) (3) of the Act .5 We have also considered the other reasons advanced by the Respond- ents for granting this Motion for Rehearing, and find them to be without merit. No new matter or grounds are urged which were not previously considered by the Board. IT IS HEREBY ORDERED that the said motion be, and it hereby is, denied. MEMBERS HOUSTON and MURDOCK, dissenting in part : We would grant so much of this Petition for Rehearing as chal- lenges the Board's Determination of Dispute herein on grounds other than the contention that a proceeding under Section 10 (k) of the Act is governed by Section 6 of the-Administrative Procedure Act. 8 Senate Report No 105 on S. 1126 (page 6], in commenting on the existing practices In the maritime industry, states : In the maritime industry and to a larger extent in the construction industry union hiring halls now provide the only method of securing employment . This not only permits unions holding such monopolies over jobs to exact excessive fees, but it deprives management of any real choice of the men it hires. . . . 4 Matter of Juneau Spruce Corporation, 82 N. L. It. B. 650. 3 See Matter of Moore Drydock Company, 81 N. L. R. B. 1108.