Gulf Shipside Storage Corp.

In the Matter of GULF SHIPSIDE STORAGE CORPORATION and INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, GENERAL TRUCK DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS LOCAL No. 270, A. F. L., and LOCAL 1616, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION (PARTY TO THE PURPORTED CONTRACT) Case No. 15-CA-31.Deeided September 12,1950 DECISION AND ORDER On May 25, 1950, Trial Examiner Frederic B. Parkes 2nd, issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and Local No. 270, the charging party, filed exceptions to the Intermediate Report accom- panied by supporting briefs 1 Pursuant to the provisions of. Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Styles]. 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 briefs and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act as amended, the National Labor- Relations Board hereby orders that the complaint herein against Gulf Shipside Storage Corporation, be, and it hereby is, dismissed. ' The Respondent also filed exceptions to the Intermediate Report, urging additional reasons why the complaint should be dismissed . In view of our decision herein, there is: no occasion to determine whether these exceptions have merit. 91 NLRB No. 25. 18 1 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Charles A. Kyle, Esq.,, for the General Counsel. Baldwin, Haspel cf Molony, by Lawrence A. Molony, Esq., and Conrad Meyer, III, Esq., of New Orleans, La., for the Respondent. Lee C. Grevemberg, Esq., of New Orleans, La., for Local 1616. Fred J. Cassibry, Esq., of New Orleans, La., for the Teamsters. STATEMENT OF THE CASE Upon charges duly filed by International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, General Truck Drivers, Chauf- feurs, Warehousemen and Helpers Local No. 270, A. F. L., herein called the Teamsters, the General Counsel of the National Labor Relations Board,' by the Regional Director of the Fifteenth Region (New Orleans, Louisiana), issued a complaint dated January 27, 1950, against Gulf Shipside Storage Corporation, New Orleans, Louisiana, herein called the Respondent, alleging that the Re- spondent had engaged in and was engaging in unfair labor practices within the meaning of Section S (a) (1),'(2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act as amended, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the Respondent and the Teamsters and upon Local 1616, International Longshoremen's Association, herein called Local 1616. In substance, the complaint alleged that the Respondent had engaged in the following unfair labor practices: (1) Since about October 1, 1949, the Respond- ent has dominated and interfered with the administration of Local 1616 and has contributed financial and other support to it. (2) The Respondent and Local 1616 purportedly entered into a collective bargaining contract covering the Respondent's employees of its New Orleans warehouses on or about Jan- uary 3, 1949, to be effective from October 1, 1948, through September 30, 1950. The Respondent and Local 1616 purportedly entered into an amendment, re- newal, and extension of such purported contract on November 1, 1949, extending the purported agreement until September 30, 1952. (3) Local 1616 has never been designated or selected by a majority of the Respondent's employees as their statutory representative. (4) The purported agreement contained an illegal union-security provision. (5) No referendum pursuant to Section 9 (e) of the Act has been conducted among the employees subject to the terms of the purported agreement. (6) All employees of the Respondent's New Orleans warehouses with the exception of supervisory employees, watchmen, guards, and office and clerical employees constitute an appropriate collective bargaining unit. (7) Since about June 17, 1949, the Teamsters has represented a majority of the Respondent's employees in the appropriate unit. (8) On September 15, 1949, the Teamsters requested that the Respondent recognize it as the statutory repre- sentative of the Respondent's employees and bargain collectively with it, but the Respondent refused to grant the Teamsters' requests. (9) About November 7, 1949, the Respondent discriminatorily discharged Emanuel Polk, Clarence Sims, William Matthews, Daniel Johnson, Joe Giles, John Haynes, Henry Sharett, Harry Sims, Joe Wiggins, Jimmy Coney, and John Ester, and there- after failed and refused to reinstate them, because of their membership in and activities on behalf of the Teamsters, because they engaged in concerted activi- I The General Counsel and his representative at the hearing are referred to as the General Counsel. The National Labor Relations Board is herein called the Board. GULF SHIPSID'E! STORAGE' CORPORATION 183 ties with other employees for the purposes of collective bargaining and other mutual aid and protection, and because they refused to join and become and remain members of. Local 1616. (10) About May 4, 1949, and thereafter, the Respondent by certain named representatives committeed, authorized, insti- gated, and acquiesced in the following acts and conduct: (a) Statements, acts, and conversations discouraging activity on the part of the Respondent's em- ployees for the purposes of collective bargaining and other mutual aid and protection and discouraging membership and activity among employees in the Teamsters; (b) inducing, coercing, intimidating, and encouraging employees to become and remain members of Local 1616; (c) 'aiding and assisting Local 1616 in the collection of dues, initiation fees, and other assessments ; and (d) informing and advising employees that a valid agreement in effect between Local 1616 and the Respondent required membership in Local 1616 as a condi- tion of employment, when, in fact, no valid agreement existed between the Respondent and Local 1616. The complaint further alleged that by the foregoing conduct, the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1), (2), (3), and (5) of the Act. On January 31, 1950, the Regional Director issued an amendment to the complaint, whereby the unit alleged in the original complaint to be appropriate for the purposes of collective bargaining was reduced and narrowed so as to embrace only the Respondent's employees working in its cotton warehouse and compress at the Public Commodity Warehouse and to exclude all other employees of the Respondent's warehouse operations in New Orleans. On February 10, 1949, the Respondent filed with the Regional 'Director a motion for particulars as to certain allegations of the complaint. On the same date, the Regional Director issued an order referring the motion to the Trial Examiner for ruling. On February 13 and 15, 1950, respectively, Local 1616 and the Respondent each filed an answer, denying that the Respondent had engaged in any unfair labor practices. Pursuant to notice, a hearing was held from February 15 to 24, 1950, at New Orleans, Louisiana, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. -The General Counsel, the Respondent, the Teamsters, and Local 1616 were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the outset of the hearing, the undersigned granted in part and denied in part the Respondent's motion for particulars and denied the Respondent's motion that the complaint be dismissed. On February 23, 1950, the sixth day of the hearing, the General Counsel conceded that the number of application-for-member- ship cards in the Teamsters, on which the latter relied as proof of its majority status, did not constitute a majority of the employees within the unit alleged in the complaint, as amended, to be appropriate and. accordingly moved that the complaint's allegations that the Respondent had engaged in violations of Section 8 (a) (5) of the Act be dismissed. The motion was granted. Upon the conclusion of the hearing, the undersigned advised the parties that they might argue before, and file briefs or proposed findings of fact and conclu- sions of law, or both, with the Trial Examiner. The parties waived oral argu- ment. Thereafter, the General Counsel, the Respondent, and Local 1616 each filed briefs with the undersigned. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Gulf Shipside Storage Corporation maintains its principal office and place of business in New Orleans, Louisiana, and is engaged in the business of compressing and storing cotton and also. in the business of warehousing, in which it handles both cotton ahd other general merchandise. During the year 1949, the value of the cotton and other merchandise which it handled and stored and which were shipped td it from places outside the State of Louisiana was in excess of $100,000. During the same period, it shipped, to places outside the State of Louisiana, com- modities which it had stored and handled and which were valued in excess of $100,000. For the purpose of this proceeding, the Respondent concedes that it is subject to the Board's jurisdiction. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, General Truck Drivers, Chauffeurs, Warehousemen and Helpers local No. 270, is a labor organization affiliated with the American Federation of Labor, admitting employees of the Respondent to membership. Local 1616, International Longshoremen's Association, is a labor organization, 'admitting employees of the Respondent to membership. It was affiliated with the American Federation of Labor until about August 9, 1949, at which time the New Orleans District Council of the International Longshoremen's Association, A. F. L., notified Local 1616 that its affiliation with the International Longshore- men's Association was discontinued and that jurisdiction over Local 1616 was transferred to the "Teamsters' International Union." HI. THE ALLEGED UNFAIR LABOR PRACTICES A. Background2 1. History of the Respondent's corporate structure Before setting forth the collective bargaining history, it will be helpful to explain the relationship of the Respondent to its predecessor corporation, Douglas Shipside Storage Corporation and also to Douglas Public Service Corporation, since 1939. In 1939, there were two corporations, Douglas Shipside Storage Corporation, herein called Douglas Shipside, and Douglas Public Service Corporation, herein called Douglas Public Service, each engaged in the warehousing business. Jay Well, Sr., was president of both corporations and A. M. Crighton served as see- 2 The original charge in the instant proceeding was filed on November 4, 1949 , and was served by registered math upon the Respondent on November 9, 1949 . Section 10 (b) of the Act prohibits the undersigned from finding unlawful any conduct of the Respondent which occurred 6 months prior to the filing of the charge with the Board and the service of the charge upon the Respondent. Such 6-month period commences about May 9, 1949. Accordingly, the events detailed in this section of the Intermediate Report cover the period from 1939 to about May 9, 1949 , and are set forth only for the purpose of back- ground. It is not found that any acts , statements, or conduct of the Respondent occurring during this period were unfair labor practices. GULF SHIPSIDE! STORAGE CORPORATION 185 retary-treasurer to each corporation. The Respondent, which had been incor- porated in 1940, remained a dormant corporation until April 1947. On April 30, 1947, the Respondent's board of directors authorized the Respondent to pur- chase the assets of Douglas Shipside and to assume the latter's liabilities. The sale was consummated at a date not shown in the record, and thereafter Douglas Shipside became a dormant corporation ; the Respondent purchased its assets, assuming its liabilities, leases, and operations. Well and Crighton continued as president and secretary-treasurer, respectively, of both corporations. The undersigned finds that the Respondent, is the successor to Douglas Shipside. 2. Advent of Local 1616; collective bargaining history In 1939, both International Longshoremen's Association, A. F. L., herein called the I. L. A., and International Longshoremen & Warehousemen's Union, C. I. 0., herein called the C. I. 0., launched organizational campaigns among the employees of Douglas Public Service and of Douglas Shipside. A petition for certification of representatives of the employees of Douglas Public Service was filed in Case No. XV-R-354 in 1939,3 and on October 7, 1939, a consent elec- tion was ultimately conducted to determine whether the employees of Douglas Public Service desired to be represented by the I. L. A. or by the C. I. O. The I. L. A. won the election and was certified as the statutory representative of the employees of Douglas Public Service. On October 20, 1939, Douglas Public Service and Local 1616 executed a collective bargaining contract to be in effect until September 30, 1942, with provision for annual reopening of the contract to negotiate changes in wage provisions or working conditions upon 90 days' notice. The contract also contained closed-shop provisions. Meanwhile, the C. I. O. filed a 9 (c) petition, in Case No. XV-R-400, covering the employees of Douglas Shipside, which was notified by the Regional Director on September 26, 1939, of the filing of such petition. During this period Local 1616 circulated a petition bearing the following legend among the employees of Douglas Shipside and succeeded in securing 33 signatures of employees' thereto : We, the undersigned, employees of the Douglas Shipside Storage Cor- poration, members of International Longshoremen's Association, Local 1616 hereby petition our employer, the Douglas Shipside Storage Corporation to sign the same contract now being negotiated by Local 1616 with the Douglas Public Service Corporation embodying the provisions of same, with back pay retroactive as to September 5, 1939. Signed by employees of the Douglas Shipside Storage Corporation. Copies of the petition were submitted to the Board and to Douglas Shipside. On December 12, 1939, the Board issued an order permitting the C. I. O. to withdraw its petition in Case No. XV-R-400. On December 28, 1939, the Regional Director sent Douglas Shipside the following letter : This is to advise you that the petition in the above matter has, with the approval of the Board, been withdrawn without prejudice by the Interna- tional Longshoremen and Warehousemen's Union, affiliated with the Congress of Industrial Organizations. 3 The record does not reveal whether the I. L. A. or the C. I. O. filed this petition or the date it was filed. * According to the credible and undenied testimony of William Donnels, who in 1939 was an organizer for the A. F. L., these 33 comprised the total number of Douglas Ship- side's employees. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This withdrawal on the part of the International Longshoremen and Warehousemen's Union leaves the American Federation of Labor the only remaining party claiming to represent a majority of your employees. It is our understanding that Mr. Donnels, representative of the American Fed- eration of Labor, has either shown or has offered to show to you substantial proof of his claims in the matter. Assuming that proof which Mr. Donnels has shown or is willing to show satisfies your interest in his claim, we suggest that you proceed with bargaining negotiations without further delay. On December 29, 1939, counsel for Douglas Shipside sent the Regional Director the following letter : Your letter addressed to Mr. Weil, a copy of which was sent to me, has been received. As Mr. Donnels, representative of the American Federation of Labor, has offered substantial proof of his claims that he is representing a majority of the men employed at the Douglas Shipside Storage Corporation, we are, therefore, executing a contract with him this day. On December 29, 1939, Douglas Shipside and Local 1616 executed a collective bargaining contract, expiring on September 30, 1942, and providing for a closed shop. The terms of the contract were substantially identical. to those in the contract executed in October by Douglas Public Service and Local 1616. There- after, Local 1616 maintained closed-shop contracts with Douglas Shipside and Douglas Public Service, except for a short period about 1945, when a wage dispute was referred to the War Labor Board and resulted in a temporary break in the written contracts. The contracts for Douglas Shipside -and Douglas Public Service were jointly negotiated and the terms of the contracts were substantially identical' 3. Other representation proceedings On November 19, 1940, International Longshoremen's and Warehousemen's Union, Local 7, District 2, C. I. 0., filed a 9 (c) petition with the Board in Case No. XB-R-509, seeking certification as the statutory representative of the em- ployees of Douglas Shipside. On February 17, 1941, the Board ordered, upon the recommendation of the Regional Director, that the petition be dismissed for the reason that there was an existing contract between Local 1616 and Douglas Shipside. 5 William Jones, vice president of International Longshoremen 's Association and also vice president of the South Atlantic and Gulf Coast District of the I. L. A., testified that he had assisted Local 1616 in its negotiations for contracts with Douglas Public Service from about 1941 through 1949. He denied that he assisted Local 1616 in negotiating contracts with Douglas Shipside or with the Respondent and that he had any knowledge of any contracts between Local 1616 and those companies. He also insisted that Local 1616 had no members among the employees of Douglas Shipside and the Respondent. However , Local 1616's contract with Douglas Shipside and with the Respondent were introduced in evidence . The credible testimony of numerous other witnesses establishes that representatives of Douglas Shipside and the Respondent participated in the bargain- ing conferences attended by representatives of Douglas Public Service and Local 1616, that ac a result of these negotiations separate contracts covering the employees of Douglas Public Service and Douglas Shipside ( and subsequently the Respondent ) were executed with Local 1616, that at the request of Douglas Shipside and the Respondent, Local 1616 furnished them with employees pursuant to the terms of the closed -shop contract in 1947 and 1948 , that due to Local 1616's contract with Douglas Shipside , the Board dismissed 9 (c) petitions filed by another labor organization and a picket line of another organiza- tion seeking to organize the employees of Douglas Shipside was finally removed in 1946 by officers of the I . L. A. In view of these factors , as well as the fact that Jones .impressed the undersigned as' an evasive and unreliable witness , often appearing purposefully vague, the undersigned does not credit Jones' testimony in this regard. GULF SHIPSIDE' STORAGE CORPORATION 187 On October 9, 1946, International Longshoremen's and Warehousemen's Union, Local 207, filed another 9 (c) petition in Case No. 15-R-201, covering the em- ployees of Douglas Shipside. The Board's 'records show that the petition was withdrawn for the reason "Unit inappropriate, contract bar." 4. The UA election At a date not disclosed by the record, Local 1616 filed a petition with the Board in Case No. 15-UA-346, requesting that an election be held among the employees of Douglas Public Service to determine whether or not they desire to authorize Local 1616 to negotiate a contract with Douglas Public Service containing a provision for union security. A consent election agreement was executed by the parties and approved by the Regional Director on September 7, 1948. Pursuant to the agreement, an election was conducted among the em- ployees of Douglas Public Service's Appalachian and Block Y warehouses on September 14, 1948. Of the 44 employees eligible to vote, 40 cast ballots in favor of authorizing Local 1616 to negotiate a contract with union-security provisions. 5. The 1948 negotiations and contracts On June 29, 1946, Douglas Shipside and Douglas Public Service entered into separate closed-shop contracts with Local 1616, expiring on September 30, 1948. Prior to the expiration date of these contracts, representatives of the Respondent, Douglas Public Service, and Local 1616 met in joint collective bargaining con- ferences to negotiate new agreements. The negotiations concluded in November or December 1948, when agreement on the terms of new contracts was reached. Counsel for the Respondent prepared the contracts in their, final form and the contract between Douglas Public Service and Local 1616 was executed on or shortly after December 31, 1948. Due to some errors in the draft of the con- tract covering the Respondent's employees, the Respondent and Local 1616 did not execute, as was their usual custom, their contract on the same date that the contract between Local 1616 and Douglas Public Service was formally com- pleted. The contract between Local 1616 and the Respondent was signed on or shortly after January 3, 1949." The contract provided that it should become These findings are based upon documentary evidence and upon the credible testimony of A. H. Crighton, secretary-treasurer of the Respondent and of Douglas Public Service; Jay Weil, Jr., vice president of the Respondent ; George Grant , a member of Local 1616's bar- gaining committee ; and Albert Williams, at that time president of Local 1616. The Gen- eral Counsel contends that this agreement was not executed until November 1, 1949, the date that the parties signed an amendment to the contract in regard to wages. John E. Jones, who was recording secretary of Local 1616, testified that he signed the agreement about a month or two before Christmas 1949 . On direct examination Hamilton Jones, presently financial secretary of Local 1616 , testified that he observed Grant and Williams sign the contract dated January 3, 1949, on November 1, 1949. On cross-examination, Hamilton Jones denied that he observed Grant sign the contract on November 1, 1949, and testified that on November 1, 1949 , only the amendment or extension agreement to the January 3, 1949, contract was signed by Grant, Williams, and himself and that he merely saw the January 3, 1949, contract during the meeting. John E. Jones did not impress the undersigned as a reliable witness ; his testimony is not credited. Inasmuch as Hamilton Jones' testimony on cross-examination was diametrically opposed to his testi- mony on direct, the undersigned does not rely upon the testimony of Hamilton Jones as to this issue . Upon the entire record, including the undersigned 's observation of the wit- nesses and the fact that a retroactive wage increase was given the Respondent 's employees on December 20, 1948, pursuant to the terms of the agreement in question , the undersigned finds that the contract was executed on or shortly after January 3, 1949, and that the allegations of the complaint and the contentions of the General Counsel as to the date of the execution of this contract are, accordingly , without merit. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effective as of October 1, 1948, and remain in effect to and including Septem- ber 30, 3950, and that it might be reopened annually upon 90 days' notice prior to September 30, 1949, and September 30, 1950. B. The alleged domination of Local 1616, the alleged discriminatory discharges; the alleged interference, restraint, and coercion' 1. Reopening of the 1949 contract ; organizational efforts of the Teamsters At this point we turn to a consideration of the events occurring after May 9, 1950, the date on which the 6 months' statute of limitations of Section 10 (b) of the Act was tolled. The contract which the Respondent and Local 1616 executed on or shortly after January 3, 1949, was in effect throughout this period. The contract contained the following provisions: Section 11. Union Security It is agreed that all employees of the Company performing the duties described in Section 1. Recognition, who are members of the Union on the date of the signing of this Agreement, shall remain members in good standing as a condition of continued employment with the company, and any new employees hired by the company to perform those duties described in the said section, hired by the company after the above date, shall, within 30 days from the date of their employment become members of the Union and re- tain their said membership in good standing as a condition of continued employment. The Union shall not have the right to call for the dis- charge of any employee under the provisions of this clause except for the non-payment of dues. It is understood that this section shall not take effect until an election has been conducted by the National Labor Relations Board and a majority of employees in the unit have authorized a union shop in accordance with law. An identical provision was included in the contract, executed about December 31, 1948, by Douglas Public Service and Local 1616. As noted above, an elec- tion pursuant to the provisions of Section 9 (e) of the Act was held among certain employees of Douglas Public Service on September 14, 1948. How- ever, no such election was ever held for the Respondent's employees. In June 1949, the Teamsters commenced an organizational campaign among certain of the Respondent's employees working at a cotton warehouse and com- press in the Public Commodity Warehouses and succeeded in obtaining the signatures of some employees to applications for membership. On June 25, 1949, Albert Williams, then president of Local 1616, sent the follow- ing letter to Douglas Public Service : . .. in accordance with our contract with the Douglas Public Service Corporation and the International Longshoremen's Association and its affili- ated Local No. 1616, I hereby give you 60-day notice of our intentions to reopen said agreement to discuss the question of an increase in wages. Our committee. will meet with your representatives at your convenience upon re- ceipt of the day selected by you for this meeting. 'The findings In this section are-based upon events occurring subsequent to May 9, 1949, the beginning of the 6-month period antedating the service of the original charge upon the Respondent. I In addition to its warehousing operations at the Public Commodity Warehouse, the Respondent operated other warehouses in New Orleans, namely, St. Maurice warehouse. and I. C. 32 warehouse. GULF SHIPSIDE. STORAGE CORPORATION 189 On July 7, 1949, A. M. Crighton, secretary-treasurer of Douglas Public Service and also of the Respondent, answered Local 1616's request with the following letter : In reference to the letter received from your Union requesting a meeting with us, we will be glad to meet with you and your committee at 3: 30 PM July 21, 1949, in my office at 1200 S. Peters St. Although Local 1616 did not give ' the Respondent a specific notice of inten- tion to reopen the 1949 contract, nevertheless, it appears that the parties deemed the contract reopened by Local 1616's notice concerning the contract with Doug- las Public Service, for representatives of the Respondent met jointly with representatives of Douglas Public Service and Local 1616 to negotiate a wage increase. Initial negotiations were held in July, but no solution was reached. 2. The conflict in jurisdiction between the Teamsters and the I. L. A. over Local 1616 William Jones, vice president of the I. L. A., testified that the jurisdiction of the I. L. A. was confined to employees engaged in waterfront work and that the work of the Respondent was deemed to be inland warehouse work, under the ' jurisdiction of the Teamsters. However, having organized the employees of Douglas Public Service, the I. L. A. continued to act as their statutory representative in the absence of a jurisdictional claim by the Teamsters. According to Jones, the Teamsters asserted its jurisdiction over the employees covered by Local 1616 early in 1949 and rather than have a jurisdictional dispute about the matter, the I. L. A. transferred Local 1616 to the Teamsters. Local 1616 was informed of the change in jurisdiction by the following letter, dated August 18, 1949, from Walter S. Augustine, secretary of "New Orleans I. L. A. District Council" : At the regular meeting of the New Orleans I. L. A. District Council, held August 9, 1949, it was decided to have your Local discontinue its affiliation with the International Longshoremen's Association (I. L. A.) and become affiliated with the Teamsters' International Union. We want you to know that this action was taken after mature consid- eration and only after we were convinced that we had no alternative and also that this change was for your betterment. We request your returning to the New Orleans I. L. A. District Council Secretary, Brother W. S. Augustine, 503 So. Rampart Street the charter and seal now in your possession. A copy of the letter was apparently sent to the Teamsters. However, the Respondent was never notified of the change in jurisdiction over Local 1616 s The membership of Local 1616 did not approve of being transferred to the Teamsters without prior consultation and at a meeting on September 8, 1949, unanimously expressed their disapproval of the "absolvement of our union" and the shift in jurisdiction to. the Teamsters. Apparently, Local 1616 did not surrender its charter and seal to the I. L. A. Although Vice-President Jones.testified that as of the date of Augustine's letter of August 18, 1949, set forth above, Local 1616 had no further connection with the I. L. A., the undersigned notes that in a letter dated September 2, 1949, John R. Owens, secretary-treasurer of the I. L. A., urged George Grant, president of Local 9 This finding is based on the credible testimony of Crighton . Jones' testimony that he believed the I. L. A. gave the Respondent notice of the transfer is not credited. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1616, to remit per capita tax upon the local membership through the month of September "so that your Local 1616 will be in good standing with our Inter- national." On September 15, 1949, the Teamsters sent the Respondent the following letter : Please accept this letter as our official notice that we are the duly repre- sentatives of your employees, coming under the jurisdiction of the Gen'l Truck Drivers Local #270. We, therefore, request an appointment at your earliest convenience, and would you kindly notify the signee of this letter (our Telephone #MA 1622), as to where and when it would be agreeable for the meeting. . . . On September 21, 1949, the Teamsters filed with the Board in Case No. 15-RC-314 a petition for certification of representatives of the Respondent's employees 10 3. Local 1616's solicitations of membership in October George Grant was elected president of Local 1616 in June 1949, and assumed that position in July. According to Grant's credible testimony, he could not find the proper records of Local 1616 or its charter when he assumed office and being of the understanding that "Gulf Shipside Storage belonged to us," he and Hamilton Jones, the newly elected financial secretary of Local 1616, launched a campaign on August 17, 1949, to expand Local 1616's membership among the Respondent's employees and "to try to get the men in the organization if they wasn't and get them paid up without the company knowing it." According to Grant, he made several trips to the Respondent's warehouse at the Public Commodity Warehouse, located at the docks on the Mississippi River, and talked to the Respondent's employees about Local 1616 during their lunch hour between 12 and 1 p. in., at which time all unions had access to the docks by permission of the New Orleans Dock Board. Grant testified credibly and without contradiction that "after the men were so hard and I couldn't get them to see it my way, then I decided to serve notice'on the company that I wanted to see the men some day at noon or after 5 :00 o'clock." In September, he discussed the matter with Crighton who replied, "Well, you have the contract and it's up to you to see what you can do with your men." C. D. Wood, manager of the Respondent's cotton division, testified, without apparent contradiction;' that in October 1949, Grant "came to me and told me, be wanted to talk to the men. I told him that that was his privilege between 12: 00 and 1: 00, before or after working hours." Wood relayed this informa- tion to John Dassel, a cotton weigher,2 and told him that "it was perfectly all 10 The petition was withdrawn on February 13, 1950. The finding as to the filing and withdrawal of the Teamsters ' 9 (c) petition are based upon the Board's official records, of which the undersigned has taken judicial notice. 11 Grant was not questioned with regard to this conversation. 12 When the members of the shed crew employed ' as common laborers in warehousing cotton reported for work in the mornings, Dassel checked them in and reported to Wood the number present. When there was not enough work for all men reporting, Wood instructed Dassel as to which men should work and which should be laid off. Dassel relayed this information to the employees . Wood and Dassel denied that the latter had authority to hire or discharge employees, but Dassel testified that "occasionally I might pick an odd man up but as a rule I send them all to Mr . Wood." Wood's testimony indi- cates that Dassel had authority to recommend that employees be hired or discharged. Testimony of witnesses who were members of the shed crew clearly shows that the employees regarded Dassel as their foreman . Upon the entire record , the undersigned finds that Dassel was a supervisory employee whose statements and activities are attributable to the Respondent. GULF SHIPSIDl STORAGE' CORPORATION 191 right for Grant or, as far as that's concerned, any union to speak to the men during lunch hour or before work or after work." On the day in question, Dassel informed the employees under his direction shortly before noon that the "President of the Union wanted to have a little talk with them" during their lunch hour and told "Grant to get ahold of them. He knew them all." Dassel denied that he ordered the employees to gather in a box car to be addressed by Grant or that he assembled the employees. During the lunch period, Grant and Hamilton Jones discussed Local 1616 with a group of employees who had assembled in a box car to eat their lunch. Grant informed the employees that Local 1616 had a contract with the Respondent and was seeking to negotiate an increase in ' wages. He showed them a copy of the existing contract and stated that fees and dues for new members were 96.75. They discused the Respondent's vacation policies, an insurance policy given by Local 1616 to its members, and various other, benefits Local 1.616 offered its members. Grant denied that he told the employees that they had to join Local 1616 in order to continue to work for the -Respondent. The meet- ing ran a few minutes past the lunch hour and ceased when Dassel looked in the box car and the employees returned to work." The findings as to this meeting are based principally upon the testimony of DasseI, Wood, Grant, and Hamilton Jones, who impressed the undersigned as being more reliable and accurate than did the following witnesses, whose testimony will be briefly sum- marized : (1) Emanuel Polk testified that a little after 1 p. in., when the employees were supposed to return to work after lunch, Dassel told him, Harry Sims, Henry Sharett, William Matthews, and Clarence Sims "to go into the boxcar, there would be someone to come there and talk to us." After they assembled in the boxcar, Grant and Hamilton Jones appeared and they discussed Local 1616, as set forth in the text. On direct exam- ination, Polk testified that Grant told them "Well, boys, if you all want to go along, that is, to join, go along with ui, you had better join the union, see?" On cross- examination, Polk's version of Grant's acatement was "Mr. Grant told us if we wanted to stay on the job, we had better string along with the union, you understand, those are Mr. Grant's words. . . . the way he put it up to us, if we didn't string along with the union, that meant that we couldn't work there . . . He told us that if we wanted to, you know, to work, we would have to fall in line with the union." When called as a rebuttal witness, Polk gave the following testimony in regard to this statement: Grant said, "'Well, boys, you all better line up with as, string along with us.' That's as good as saying you can be sure of your job. That's the reference I got when he said line up with us, go along with us." At first Polk insisted that Grant did not show them Local 1616's contract but lie Inter admitted, "I saw one of the boys have a paper. Now what was on this paper, I do not know"; (2) Henry Sharett testified that he had started to work on a pile of cotton when Dassel told him to go to the boxcar because "someone wants to have a talk with you." Sharett denied that Grant told them that they had to join Local 1616 in order to work for the Respondent; (3) Harry Sims' testi- mony was largely in accord with Polk's. Sims testified that Local 1616's contract was discussed but was not shown by Grant and that Grant told the employees that they had to be members of Local 1.616 in order to work for the Respondent ; (4) Daniel Johnson testified that a group of employees had assembled in a boxcar to eat their lunch and about 12: 50 or 12: 55, Dassel Caine to the car and said "a man come here to talk to you." Johnson left the car soon after Grant arrived and did not stay for the discussion ; (5) William Matthews testified that Dassel told him to go to the boxcar and that he was present during the meeting with Grant. Matthews denied that Grant told them that they had to join Local 1616 in order to work for the Respondent and that Grant read from a contract; (6) according to Coney, lie had resumed work and had "gotten in the truck to take the load down town" when Dassel called, "Coney . . . someone in the boxcar wants to see you." When Coney reached the boxcar, Grant and some employees were assembled and were discussing Local 1616. Coney left before the meeting ended ; (7) Giles testified that about 1 p. m. Dassel told him and others to go to the boxcar to see "a fellow in there who wanted to speak to us." When he arrived,. Jones and Grant were discussing Local 1616 with some employees. Giles left before the- meeting ended. Upon the undersigned's observation of the witnesses and the fact that: 192. DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Conclusion of Local 1616's wage negotiations ; extension of the January 3, 1949, contract Representatives of the Respondent, Douglas Public Service, and Local 1616 conducted further negotiations on the wage adjustment in October 1949, and late that month reached an agreement for a 5-cent an hour increase. On or shortly after November 1, 1949, the Respondent and Local 1616 executed the following agreement with respect to the wage increase and an extension of the January 3, 1949, contract : In consideration of the benefits flowing to each other from the obligations herein undertaken it is hereby agreed between WAREHOUSEMEN's LOCAL 1616, INTERNATIONAL LONGSHOREMEN'S (sic) ASSOCIATION and GULF SHIPSIDE STORAGE CORPORATION that the wages set forth in the contract between them dated January 3, 1949, and reopened for a change in wages shall be, com- mencing on October 1, 1949, at the rate of seventy-seven cents (770) per hour. All other terms and conditions of the said contract are hereby re- newed and reaffirmed. As thus amended the contract is further extended to September 30, 1952. Either party desiring a change in wage provisions or working conditions may notify the other of such a desire, in writing, ninety (90) days prior to September 30, 1950 and September 30, 1951, provided, however, that no notifications under this paragraph can be given without the written consent of both parties prior to June 30, 1950. Similarly, notification date for suc- ceeding year, in accordance with this paragraph must be June 30, 1951. Signed this 1st day of November, 1949. About the same date, Douglas Public Service and Local 1616 entered into an agreement with identical provisions. 5. Grant's solicitation of memberships on November 4 During the morning of November 4, 1949, around 10: 30 or 11 , the shed crew had completed all pending work and were instructed "to scatter out, so Mr. Wood and them wouldn 't see us," and await orders until more work was forthcoming. Grant and Hamilton Jones, who had been at another warehouse near the Respond- ent's, saw that the shed crew employees were not busy and came over to talk to them. Grant informed a group of six or seven employees that dues and fees had been reduced to $3.75 if they would join Local 1616 and they discussed briefly the advantages of membership in Local 1616 . None of the employees agreed to join." 6. The retroactive wage increase ; events occurring on November 4, 1949 a. Uncontroverted facts The supplement to the contract between the Respondent and. Local 1616 executed about November 1, 1949, provided that a 5-cent wage increase should be retroactive in effect to October 1, 1949. Pursuant to the customary practice in the past when retroactive wage increases were granted, Local 1616 requested that the Respondent givd it advance notice of the date the retroactive wage payment would be given the employees so that Local 1616 might have represent- their testimony was mutually contradictory as to certain details and for other reasons hereinafter set forth , the undersigned does not credit the testimony of these witnesses insofar as it is at variance with the findings set forth above. 14 The findings in this paragraph are based upon the mutually reconcilable testimony of Grant, Polk, Harry Sims, and Sharett. GULF SHIPSIDE: STORAGE CORPORATION 193 atives present on such pay day and collect dues from the employees. The Respondent notified Local 1616 that the retroactive wage payment would be made on Friday, November 4, 1949, a regular pay day. . Arrangements for paying the employees their retroactive pay and their regular weekly wage were as follows : The supervisory and clerical force at the Com- modity Warehouse occupied twin connecting offices, which will be called office A and office B and each of which opened into a hallway or foyer. The employees lined up in the foyer and went to office A where they received their regular weekly wage and then stepped into office B to obtain their retroactive wage payment in a separate sealed envelope. The employees of the Respondent were carried on three separate payrolls, one for each of its divisions, namely, the cotton, com- press, and merchandise divisions. The regular weekly wage payment was given the employees by either their foremen or a clerical employee in office A. Super- intendent Wood and another employee handled the retroactive wage payments in office B. In the latter office, pursuant to arrangements made with Wood, Ham- ilton Jones sat at a table near Wood's desk.to accept dues payments. During the payoff on November 4, Grant, president of Local 1616, spent most of the time in the foyer, discussing Local 1616 with the employees as they waited their turn to enter the office. The above findings are based upon uncontroverted testimony. We now turn to a consideration of the conflicts in the testimony of the various witnesses.. Several of the chief issues in the proceeding turn upon the resolution of these conflicts. Since many of the witnesses testified as to events occurring on Novem- ber 4, 7, 11, and 12, the undersigned has considered their testimony not only as to individual events but also as a whole in relation to the testimony of other wit- nesses, to documentary evidence, and to all relevant matters in the record. After a consideration of the events occurring in November, the undersigned will set forth more fully the basis for the resolutions of the conflicts in testimony briefly noted as the sequence of events is related. b. The testimony of witnesses called by the General Counsel as to incidents in controversy (1) Employees of the compress crew 16 The first employees to be paid off on November 4, 1949, were those who worked on the cotton compress in the Commodity Warehouse. James Riley, who had signed an application-for-membership card in the Team- sters during its campaign, testified that on November 4, 1949, he received his regular pay from his foreman, James Rankin, in office A, and that Rankin told him to go to office B. In the latter office, Wood gave him his retroactive pay and stated, according to Riley, "We got a union, boys. You all going to join, or either, you will be out of a job, out of expense." 'Apparently, Riley and a few other employees stepped out of line to discuss the situation and to talk with Grant. Then, when Riley returned to the line, Wood gave Riley's envelope containing the retroactive pay to Hamilton Jones, who removed $3.75 from the envelope, gave Riley the remainder of his pay, and a receipt for dues in Local 1616. 11 In determining the credibility of these employees,. the undersigned has considered the fact that Riley, Baulden, Allen, and Lee were among those employees the Teamsters alleged in its first amended charge to have been discriminatorily discharged by the Respondent on November 7, 1949. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Percy Baulden, Jr., testified that on November 4, 1949, Foreman Rankin gave him his regular pay and told him "to step in the next room and receive some back time we had." When he reached Wood's desk in office B, Wood called Baulden's name from a list of names and James Waldron, a clerical employee," gave him his retroactive pay in an envelope and said, "Now, in order to get that, you will have to pay $3.75." Baulden remonstrated, "$3.75 for what?" Waldron replied,."Well then, you have to pay the $3.75 to the union man in order to get your back time." A discussion ensued with President Grant, who was standing nearby, and Wood asked the employees to step out of line. At about this time, Baulden asked Wood, "If I don't pay that $3.75, could I work. He said no, I couldn't work Monday." Baulden and a few other employees left the room, decided to pay the $3.75 to Local 1616, returned, and did so. . General Allen testified that when he was in office B, he overheard Wood tell Baulden that "if he didn't join the union, he couldn't get his pay." It will be noted that Baulden attributed this statement to Waldron. Allen partici- pated in a discussion with Grant concerning Local 1616 and then accepted his retroactive pay, giving $3.75 of it to Jones. Afterwards Allen advised Baulden "to accept his money, and then try to take other steps to get his money back." Allen observed Jones open the pay envelopes of some employees and take out the amount for dues in Local 1616. Feltus Lee testified that when he went to office B to get his retroactive pay, Wood told him that he "had a certain amount of back pay, but had to join the union in order to get it." Lee talked to Grant about Local 1616's contract and then left the room to discuss the situation with Baulden, Allen, and Riley. The outcome was, "We decided then to come back and accept the back pay and join a union." He gave $3.75 from his retroactive pay to Jones. George Nelson, Jr., testified that as he entered office B, he had a discussion with Grant who told Min that Grant was "representing Local 1616, and had some back pay for us, and had got a nickel raise for us, and we had to join the union." When Nelson reached Wood's desk, the latter gave him his retroactive pay, which was a little more than two dollars. Since the amount was "not quite enough to join the union," Nelson "told him I didn't want to join it." Nelson did not take the money but left it on the table. Wood did not say anything to Nelson about Local 1616. On the following Monday morning, November 7, 1949, Nelson stopped at Wood's office before going to work because Nelson understood from other employees that he could not work unless he joined Local 1616. Grant was in Wood's office and when Nelson asked Grant "Do I have to join the union?" Grant replied, "Yes, to work." Whereupon Nelson asked for his retroactive pay and gave Grant $3.75. At some point in this conversation, Wood asked Nelson whether he "had made up" his mind and Nelson replied, "I had made up my mind, to join." It was stipulated that the receipt given Freddie Bush by Hamilton Jones for payment of $3.75 in dues to Local 1616 was dated November 4, 1949. In regard to this payment, Bush gave the following testimony. Q. Who told you to pay the $3.75? A. I don't see the guy. Q. Who? A. Didn't nobody to tell me to pay it. They asked me did I want to pay it and join the union. I gave them the $3.75 and they gave me the receipt. 16 Some witnesses referred to Waldron as "Mr. Pete." GULF SHIPSIDEI STORAGE CORPORATION 195- (2) Employees of the shed crew17 Emanuel folk gave the following testimony in respect to the November 4 pay day: The shed crew waited for several minutes in the foyer while the compress crew were being paid. When they reached office A, William Well, vice president of the Respondent, "began to explain to us about the union, that they had taken on a contract with this particular union, and wanted to know was we going to join the union." In addition, Weil informed them that "you all have a one-month back pay coming to you all, and you will have to join the union to get it." Polk replied, "Well, if we have to obligate ourselves to join the union to get this back pay, we don't accept it." Weil then summoned Grant from office B. Grant had a discussion with Polk and other employees regarding Local 1616, but not arriving "at any satisfaction" with the shed crew, he returned to office B. Thereupon, Polk asked Tanner LeBlanc, a clerical employee who was seated at a desk in-office A, "Are you going to pay us off?" LeBlanc asked Well, "Should I pay these men?" Well ordered him to do so. On receiving their regular weekly wages, Polk and certain other members of the shed crew left the office without going to office B for their retroactive pay. Although Polk testified initially that he had never heard of Local 1616 until the boxcar meeting with Grant in October 1949, related above, he later recalled that Williams had urged him to join Local 1616 during 1948. John Haynes gave the following testimony in regard to the November 4 pay day : He was the first of the shed crew to be paid off and when Well gave him his envelope, Well told him "Go through the office, Mr. Wood's office. You got some back time." Haynes asked, "For what?" Weil replied, "The union got some back time." Haynes countered, "We doesn't have anybody to repre- sent us for the union. I don't have any back time there." Well then called Grant into the office and a discussion ensued between Haynes and Grant over Local 1616. Without going into office B, Haynes took his regular pay and left the office. Harry Sintis testified that when his crew entered office A to get their pay, Polk and Well had a discussion, to which Sims paid no attention, that Well called Grant from office B, and that Polk and Grant had a discussion about Local 1616. On cross-examination, Sims further testified that no one told him to enter office B for his retroactive pay, that nothing was said about such retroactive pay, and that no one in the office said anything to him about joining Local 1616. Sims took his regular pay and left. According to Henry Sharett, the following occurred on November 4, 1949: He and the shed crew waited about 15 minutes in office A while the compress crew were paid. The shed crew finally asked, "How about getting our money?" LeBlanc, who had their pay envelopes, asked Well whether he should give them their pay and Weil 'replied that "He wanted to have a talk . . . he started to talk to we all, concerning the union." However, Sharett paid no attention to Weil's remarks. Then Well summoned Grant, who came in and discussed Local 1616 with the crew. Sharett told Grant that he was not interested in Local 1616 and walked away. Weil instructed LeBlanc to "go ahead and pay the boys off." Sharett took his regular wages and left. No one told him to go in office B to receive retroactive pay. 11 These employees were among those alleged in the complaint to have been discrimina• torily discharged on November 7. 917572-51-vol. 91-14 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD William Matthews testified that the entire shed crew, including Haynes, waited in office A while the compress crew received their wages and that ultimately Well instructed LeBlanc to pay the shed crew. Then Well summoned Grant, whom Matthews had seen in the hallway earlier, and asked Grant ."concerning our back time, were we entitled to it unless we joined the union, Grant said, no we weren't entitled to it unless we joined the union." On cross-examination, 'Matthews testified that after the shed crew waited for a while, LeBlanc paid them off upon Weil's instructions, that Matthews took his regular wages and left, and that no one said anything to him' about Local 1616 in the office. When Joe Giles was asked on direct examination whether he remembered getting some back pay in early November 1949, he stated "I don't think we take it on Friday when he offered it to us the first time." On cross-examination, Giles explained that he had not worked on Friday, November 4, apparently be- cause there was not enough work, and that when he came to the office to obtain his pay, "it was late . .. everybody had gone. So when I got there, they didn't tell me nothing, but give my pay to me." Daniel Johnson gave the following testimony in regard to the November 4, pay incident: They stopped us there in the office, just stopped the pay roll there in the office, and wanted to know, when we walked up there for to get our. pay . . . what you going to do with these men, are you going to pay these mens off. . . . They said wait. Now, I don't know what one of these gentlemen was, called Grant. Well, Grant, he come in there in the office and he went to talking. Well, I am going to be straight. I wasn't interested in what he was saying, me. Well, then' little while after that they say yes, pay the mens off. They paid us off. When they paid us off, I walked on out the side door and went on home. Johnson further testified that all the crew were there, including Haynes, that Well said nothing to Johnson about having to join Local 1616, and that no one told him anything about going into office B, but that he saw the compress crew in office B and knew "what they were doing" from employees of that crew who said that they were "drawing the back time and paying the union." c. The testimony of witnesses called by the Respondent as to incidents in controversy C. D. Wood, manager of the Respondent's cotton division , testified as follows with respect to the November 4 payoff : The procedure above described of paying employees their regular weekly pay in office A and their retroactive pay in office B was used to facilitate and speed the distribution of the employees ' pay. Pay officials in each office checked off the employees as they were paid from 3 pay- rolls, embracing the Respondent's cotton , compress , and merchandise departments or divisions. Wood estimated that between 75 and 80 employees were paid off on November 4.19 Wood was in office B, assisting in paying the employees their Is The payroll, records show that , in addition to Giles, Coney and Ester did not work on November 4. Ester's testimony was confused and it is not clear whether he received his retroactive pay on November 4 or 11. In view of the fact that he did not work November 4, and of his testimony as to wood's statement on November 7, Ester must have meant that he received the retroactive pay on November 11. However , Matthews testified that Giles and Ester were present on November 4. when the shed crew employees were paid. As noted above , Giles specifically denied that he was there when the group received their pay. The payrolls for the 3 departments , which were introduced in evidence , show that on November 4, 1949 , 83 employees worked,. excluding 3 watchmen and leadermen but in- eluding clerical employees. GULF SHIPSID'EI STORAGE CORPORATION 197 retroactive pay. Jones, secretary of Local 1616, was also in office B "for the simple reason there was no other place that he could use ; in other words, there was no desk room outside because it is just an open space. Office B was filled, so I permitted him to come inside there and collect whatever dues he had coming to him." Wood denied that he mentioned Local 1616 to the employees, or that -he told them that they had to join or pay dues to Local 1616 in order to receive their retroactive pay or to continue working for the Respondent. He did' not explain to the employees the reason for the retroactive pay. He did not remem- ber that any employees hesitated or refused to pay dues to Local 1616 or that there was any "unusual discussion at all." According to Wood, the employees "drew the pay and went to Jones or out, one or the other." He denied knowledge of whether the employees paid dues to Jones or not. Well was in Wood's office most of the time during the payoff and Grant came in "at the latter part of the evening." William Weil, vice president of the Respondent, gave the following testimony as to the events occurring on November 4, 1949: The compress crew were first paid in office A and then filed into office B, where "they collected their back pay and either paid or did not pay their back dues to the union, after which they went out." Grant was in the foyer talking to the employees about Local 1616 but later came into office B, where he' continued to discuss Local 1616 with the em- ployees. Polk asked Weil a question about Local 1616. Well did not answer or say anything to Polk but immediately summoned Grant to talk to Polk and an argument ensued about Local 1616 among Grant, Polk, Sharett, Haynes, and others of the shed crew. The argument lasted 5 or 10 minutes, at which point the employees said that "they would quit rather than join the union." 20 They col- lected their weekly wages and went into the foyer without attempting to enter office B for their retroactive pay. Well specifically denied that he told any of the employees that they had to join Local 1616 in order to collect their retroactive pay or to continue working for the Respondent. James A. Waldron testified that he assisted Wood in paying the employees their retroactive pay in office B, and denied that Waldron, Wood, or anyone told the employees that they had to join Local 1616 in order to receive their retro- active pay or to continue working for the Respondent. He insisted that only Jones and Grant talked to the employees about Local 1616. None of the employees complained to Wood about paying dues to Local 1616, although two or three were unable to decide and left the room, returning later and paying dues to Jones. The tenor of Waldron's testimony was that only two payrolls, namely for the cotton and compress divisions, were used on November 4, 1949, and that he as- sisted in paying retroactive wages to only the compress crew. His testimony is thus in conflict with that of Wood, set forth above. Inasmuch as it is clear that some merchandising work was done by the Respondent in the Commodity Ware- house where the compress and shed crews worked, the undersigned credits Wood's testimony that three payrolls were used in paying off the employees. The record is not clear as to whether all employees of the merchandise payroll received their pay at the Commodity Warehouse or not. Tanner LeBlanc, who was a clerical employee and did not ordinarily act as paymaster, testified that on November 4, 1949, he was instructed to watch the regular weekly payroll and the pay envelopes for the cotton division in office A in the absence of Waldron, the regular paymaster who was assisting Wood in paying the retroactive wages. At the direction of Wood or Well, LeBlanc 20 The employees denied making such a statement. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commenced paying the shed crew and as he paid then!, he told them to go into, office B. According to his recollection, the employees left his desk and went into office B. While he was paying the employees, there was a discussion between Grant and some of the employees at the door to the foyer but LeBlanc could not recall what was stated. He heard none of the Respondent's representatives tell the employees that they had to join Local 1616 in order to obtain the ret- roactive pay. James Rankin, foreman of the compress crew, testified that he !paid the em- ployees in his crew their regular weekly wage on November 4, 1940, in. ofifee- A, and then told them to go to office B for their retroactive pay. He denied that he heard any representative of the Respondent or Local 1616 or anyone say that the employees had to join Local 1616 on order to receive their back pay or to continue working for the Respondent. He recalled that at one point, Well called Grant into office A from the foyer. d. The testimony of witnesses called by Local 1616 as to incidents in controversy George Grant, president of Local 1616, testified that as the men came to the offices to be paid on November 4, 1949, lie remained in the foyer, talking to the employees about Local 1616. He denied that he told any of the employees that they had to join Local 161.6 to obtain their retroactive pay or to continue working for the Respondent. When Well summoned him to office A to talk with the shed crew, Grant was in the foyer, according to his testimony, and since the door to office A was blocked by employees waiting to be paid, he came through office B into office A. Grant testified that the following occurred at that point: Mr. Weil say, "Grant, here's a group of men that would like to know something about the union and I don't think its my place to tell' them, I figure it is your place to tell them." So I began telling the men concerning the union, and when I finished, or thought I was finished, the men began to get dissatisfied, anyway, someone of the men said "Well, pay them off.", and when they began paying the men off, a little before they began paying the men off, I said "Well, brothers, I'd like to have you all with us," and the whole group said, "Before I'll become a member of Local 1616 we'll quit," the whole group of them. Thereupon, Grant went into office B, according to his testimony, and "stood up there, looked over and went right back on the outside talking to those other men." Hamilton Jones, financial secretary of Local 161621 gave the following testi- mony in regard to the November 4, 1949, pay day: Grant was not in the offices but was "outside" talking to the employees about Local 161.6 as they waited to receive their pay. Jones did not talk to the employees about joining Local 16.16; they came voluntarily to him and gave him their dues. He denied that he opened any of the pay envelopes and extracted the dues himself, insist- ing that in one instance an employee passed his pay envelope to Jones, but the latter returned it and told the employee to take out the dues. Jones denied that he told any employee that he had to join Local 1616 in order to receive his retroactive pay. 21 Jones was called as an adverse witness by the General Counsel. In view of Jones' official capacity in Local 1616, he will be considered as a witness for Local 1616. GULF SHIPSID-El STORAGE CORPORATION 199 e. Conclusions as to events in controversy Upon the entire record and his observation of the witnesses, the undersigned -credits the testimony and denials of the witnesses for the Respondent and Local 1616 in respect to the matters brought in issue by the employees of the -compress crew. Riley, Baulden, Allen, Lee, and Nelson did not impress the undersigned as reliable witnesses and their testimony is accordingly rejected. The testimony of Riley, Baulden, Allen, and Lee related to the same incident in which they were jointly involved, but the resume of their testimony clearly shows that they were mutually contradictory as to certain details. Moreover, the testimony of Freddie Bush, a witness for the General Counsel, is opposed to the testimony of the other compress employees and is in accord with the testi- mony of the witnesses for the Respondent and Local 1616. To recapitulate, it is found that none of the Respondent's or Local 1616's representatives told the -compress employees that they were obliged to join Local 1616 in order to receive their retroactive pay or to continue working for the Respondent. It is further found that Jones did not open the pay envelopes of employees and extract the .amount of dues for Local 1616. In the opinion of the undersigned, these resolutions of the conflicts in testimony are supported by documentary evidence. While it is true that most of the members of the compress crew paid dues to Local 1616 on November 4 and it might be argued that this fact supports the rejected testimony of the General Counsel's witnesses, nevertheless, a consideration of- the entire payroll records -of the Respondent and the membership records of Local 1616 as a whole leads to the conclusion that the Respondent did not assist and support Local 1616 on November 4, 1949, by insisting that employees pay dues to Local 1616 in order to receive their retroactive pay or to continue working for the Respondent. 'Thus, the records show that six members of the compress crew did not pay dues to Local 1616. Of these six, Anthony Maxwell, Hugh Robinson, Richard Wil- liams, and Wilfred Washington worked on November 4. -Maxwell and Wash- ington continued to work on November 7, 8, 9, and thereafter. Williams' name does not appear on the payrolls after November 4 until November 17. Robinson's name is not found on the payrolls thereafter. Nickison and Clasper, who were :not at work on November 4 and did not pay dues to Local 1616 worked the following week and thereafter. The payroll for the merchandise department shows that 26 employees worked ,on November 4. Of these 26 employees, 1 was already paying dues to Local 1616 prior to November 4 and 7 others paid dues on November 4. Thus, 18 did not -pay dues on November 4. All 18 worked on November 7, 17 on November 8, .and 15 on November 9. The undersigned concludes that these records refute the testimony of the -General Counsel's witnesses that the Respondent conditioned their receipt of the retroactive pay and their continued tenure of employment upon payment of dues to Local 1616.' If such were the case, there appears to be no reason for the Respondent not to have levied the same condition upon all employees of the compress department and of the merchandise department. Upon a consideration of the record and the testimony of the witnesses in their respective entirety, the undersigned credits the testimony and denials of the witnesses for the Respondent and Local 1616 in respect to the incidents occurring when the shed crew were paid on November 4, 1949. Insofar as the testimony 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the shed crew was at variance with the credited testimony, it is rejected, for the principal reason that the testimony of these employees was in many instances mutually contradictory as to important details and in some cases was individually self contradictory as to minor matters 22 More specifically, the undersigned relies. especially upon the testimony of Well and Wood, who impressed the undersigned. as the most accurate and reliable of the witnesses, and also upon the testimony of Grant, who was in the main a reliable witness, although he tended to minimize. his activities on November 4 and to put Local 1616 in as favorable light as possible. In this connection the undersigned notes that the testimony of Haynes and Johnson, who were witnesses for the General Counsel, is inherently reconcilable with Weil's version of the events occurring on November 4, being at variance only as to relatively minor details. In summation, the undersigned finds that the following occurred when the shed crew came to receive their pay on November 4, 1949 ; After waiting several minutes for the press crew to be paid, Polk asked Well a question about Local 1616, and Well called Grant into the room to talk with Polk and the other shed crew employees, including Haynes.23 An argument about Local 1616 ensued between Grant and these employees, ending with a statement by the shed crew employees that they "would quit rather than join" Local 1616. They thereupon collected their weekly wage and left the office without attempting to obtain their retroactive pay.24 Although Grant spent some time in discussion with employees in the foyer, it is found that he also talked to employees in office B. No statement was made by Weil about Local 1616 and no representative of the Respondent or Local 1616 told the employees that they had to join Local 1616 in order to obtain their retroactive wage or to continue working for the Respondent. 7. The alleged discriminatory discharges on November 7 a. Witnesses for the General Counsel Again there is a decided and direct conflict in the testimony between the witnesses for the General Counsel on one hand and those for the Respondent on the other. As to certain details and statements attributed to. Wood on November 7, there is also a certain amount of mutual contradiction among the witnesses for the General Counsel. As mentioned above in discussing the supervisory status of Dassel, the shed crew assembled sometime before 8 a. in. and Dassel would either put all of them to work if the Respondent's operations required or put a few to work and send the others home. All witnesses are agreed that the shed crew, including the 11 employees alleged to have been discriminatorily discharged, reported for work, with other members of the crew, on Monday morning, November 7, 1949. Accord- ing to some witnesses for the General Counsel, Dassel took the names of a few em- ployees there assembled and told the remainder to wait until he went to Wood's 22 The undersigned realizes that the witnesses for the Respondent and for Local 1616 were not in agreement upon all details of their testimony. In the main, however, their testi- mony was in accord as to the principal events and varied only on relatively minor details. 23 Haynes' testimony indicating that he was the first of the shed crew employees to be paid off and that he did not participate in the group discussion is not credited, inasmuch as witnesses for both the General Counsel and the Respondent stated that Haynes teas. present when Grant talked to the shed crew. 24 LeBlanc's testimony that the employees went to office B is not credited. 25 This finding is based principally upon Weil's testimony. The testimony of Grant and Jones to the contrary is not credited. GULF SHIPSIDEI STORAGE CORPORATION 201 office.21 But other witnesses for the General Counsel testified that Dassel checked in a book the names of all the. employees and then told them to wait while he went to see Wood 21 In any event, the shed crew waited for a while and then decided that they would follow Dassel to the office. They arrived as Dassel was emerging from the office and he told them that they could see Wood. They entered the office. Several of the employees denied that Well was in the office, but Ester testified that there were some others in the office beside Wood. They asked Wood whether he was going to put them to work. There is general agreement among the 11 employees who were allegedly discriminatorily dis- charged that Wood replied that they could not work unless they joined local 1616 and said nothing about work being slack. As to the details and statements attributed to Wood, considerable divergence in the employees' testimony exists." Harry Sims and Ester testified that when someone asked Wood about the retro- active pay, Wood replied that they could not obtain it unless they joined Local 1616. However, Polk and Johnson insisted that the retroactive pay was not discussed at this meeting. The employees then left the office. b. Witnesses for the Respondent Wood testified that the shed crew came to his office.on'the morning of Novem- her 7 and "wanted to know if they could go to work that morning" and that he informed them, in the presence of Weil, that work was slack and there was no, work for the crew. Wood denied that he told the employees that they had to join Local 1616 in order to work or receive their retroactive pay. On direct examination, he testified that the employees mentioned Local 1616 and he told them that "we had a contract with Local 1616." On cross-examination, Wood stated that he did not recall that Local 1616 was mentioned on November 7, and was "almost positive" that the subject was brought up at a meeting on Novem- ber 11. Weil testified that the following occurred in Wood's office on November 7 .. Weil.reported to work as the employees came to Wood's office. The employees asked whether they could work that morning and Wood replied, "I am very sorry but the work has run out. The large amount of cotton we were receiving prior to that date has been completed. I am very sorry I will just have to lay you boys off." In response to a question by the employees, Wood informed them that the Respondent had a contract with Local 1616. When they inquired whether they had to join Local 1616, Wood replied that "lie didn't know if they had to join the union . . . It was his opinion that they didn't have to join the union . . . as far as he knew they didn't have to join the union." Well testified that not all of the employees alleged to have been discriminatorily discharged came to Wood's office that morning and that William Whitley, Sr., and Major Clark were in the group. According to Dassel, the amount of work became slack in November and on November 7, he put none of the shed crew to work because there was no work for them. Waldron testified that he was in the office adjoining that of Wood on November 7, that he did not hear the colloquy between Wood and the shed crew, and that Weil was in Wood's office when the employees talked to wood. 21 Polk, Harry Sims, Coney , Giles, Haynes , and Johnson. 24 Sharett , Matthews , Clarence Sims, and Wiggins. 28 For example, Coney, Matthews, and Haynes testified that on November 7, 1949, Wood referred to the Respondent 's contract with Local 1616. Polk and Clarence Sims attributed to Wood a statement that he, like the employees , was hired by the Respondent and had to carry out its orders and follow its rules . On the other hand, Coney and Matthews testified that Wood made such a statement on November 11, 1949. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. Conclusions as to the occurrences on November 7 Upon the entire record, including the undersigned's observation of the wit- nesses, his appraisal of the entire testimony of the witnesses, and the factors hereinafter noted, the undersigned finds the testimony of the witnesses for the General Counsel unworthy of credence and credits the testimony and denials of the witnesses for the Respondent, with the exception of their testimony that not all of the General Counsel's, witnesses were present on November 7, 1949. The undersigned finds that such witnesses were present but he also credits the un- denied testimony of Well that Clark and Whitley were also in the group. The testimony of the Respondent's witnesses that no shed crew employees were put to work on November 7 and that there was no work for them is supported by documentary evidence in the form of the Respondent's payroll records, which ;show the following number of employees : Number- of employees on Date cotton payroll 10 October 27,1949-------------------------------------------------- 16 October 28,1949-------------------------------------------------- 17 October 29,1949-------------------------------------------------- 9 October 31,1949--------------------------------------------------- 21 November 1,1949------------------------------------------------- 0 November 2, 1949------------------------------------------------ 15 November 3,1949------------------------------------------------- 15 November 4,1949------------------------------------------------- - 12 -------------- November 7, 1949----------------------------------- November 8,1949------------------------------------------------- 0 0 November 9,1949------------------------------------------------- 3 November 10, 1949------------------------------------------------ 7 November 11, 1949------------------------------------------------ 4 November 14, 1949------------------------------------------------ 18 November 15, 1949------------------------------------------------ 19 November 16, 1949----------------------------------------------- 19 November 17, 1949------------------------------------------------ 23 November 18, 1949------------------------------------------------ 24 November 19, 1949------------------------------------------------ 2 November 21, 1949------------------------------------------------ 20 November 22, 1949------------------------------------------------ 21 November 23, 1949---------------- -------------------------- 2 November 24, 1949------------------------------------------------ 0 November 25, 1949------------------------------------------------ 19 November 28, 1949------------------------------------------------ 24 November 29, 1949------------------------------------------------ 22 November 30, 1949------------------------------------------------ 23 December 1, 1949------------------------------------------------- 7 December 2, 1949------------------------------------------------- 20 29 In these computations William Brodmeyer has not been counted, inasmuch as Weil did not include him among the members of the shed crew. The clerical employees on the payroll have not been counted. Although the shed crew were carried on the cotton pay- roll, it is not clear whether they comprised the entire payroll or whether they were only part of the employees on such payroll. GULF SHIPSIDE! STORAGE CORPORATION 203 It is thus clear that no shed crew employees worked on November 1 or on November 7 and 8.30 On November 9, 10, and 11, respectively, the shed crew consisted of 3, 7, and 4 employees, thus showing that the shed operations had resumed but were not working at capacity 31 These payroll records support the testimony of the Respondent's witnesses that shed crew work was slack at these times. None of the 11 employees alleged to have been discriminatorily discharged reported for work on the mornings of November 9, 10, and 11. The record also establishes that the layoff of the shed crew on November 7,. encompassed all 17 employees 32 who were considered to be the regular mem- bers of the crew and not merely the 11 employees alleged in the complaint to have been discriminatorily discharged. Of the regular shed crew employees,. 3 were rehired on November 14, 15, and 17 33 The record reveals that 1 shed employee laid off on November 7, 1949, Jeff Curtiss, was a member of Local 1616; he was reemployed on November 15. The undersigned also notes that of the application-for-membership cards in the Teamsters introduced in evi- dence, 2 bear the names of Whitley and Laphew Wilson who were reemployed on the shed crew on November 14 and 17, 1949,. respectively. In summation, the undersigned finds that on November 7, 1949, none of the shed crew was employed and that the 11 employees alleged in the complaint to have been discriminatorily discharged, accompanied also by Whitley and Clark, came to Wood and inquired whether they would be put to work. Wood informed them that there was no work available and that they were laid off. They inquired about Local 1616 and whether they had to join that organization. Wood replied that the Respondent had a contract with Local 1616 but that as far as he knew they did not have to join it 34 8. Other events occurring on November 7, 1949 Grant testified credibly that the following occurred on November 7, 1949: One of the employees laid off on November 7, reported that day to Grant that Wood had discharged them that morning. Grant expressed disbelief that such had happened. Accompanied by Hamilton Jones, he went to see Crighton, who telephoned Wood and discovered that the employees were not discharged but had been laid off because of a shortage of work. Grant then asked for a list of the employees who were laid off so that he might notify the employees to report to work on Tuesday. In the event that Wood could not use them on Tuesday, Grant planned to take them to the Appalachian warehouse of Douglas Public Service, where Grant was employed and where there was a shortage of employees. Crighton gave Wood a list of the employees who were laid off. The evening of November 7, 1949, Grant and Jones went to these employees' homes and noti 30 Manifestly, the testimony of Polk, Harry Sims, Coney, Giles, Haynes, and Johnson that on November 7, Dassel selected a few employees to work is without foundation of fact. 31 Although the record is not clear, it is assumed for the purpose of discussion that these employees on the cotton payroll on these dates were doing work of the shed crew. 32 This finding is based upon the credible testimony of Well. 33 The payroll records of the cotton division show that Anderson Conner did not work on October 27, 28, 31, and November 2, 3, and 4. He did not appear on the cotton payroll for November 7 and 8 , but returned on November 10. Weil did not include him as a mem- ber of the regular crew . It is possible that he worked at other operations of the Respond- ent. 34 This finding is based upon the credible testimony of Weil. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fled them to report to work the following- morning. None of the employees appeared the next day." 9. Events occurring on November 11 and 12, 1949 The Respondent paid its employees each Friday; but the workweek for which they were paid ran from Thursday to Wednesday, inclusive. Accordingly, under this system, 2 days' pay was withheld. In the late afternoon of Friday, November 11, 1949, the shed crew employees who had been laid off came to the warehouse to collect the 2 days' pay owed them for work performed on November 3 and 4. They were given such pay and also the month's retroactive pay, upon the assurance that it was due them and in no way obligated them to Local 1616.38 They asked Wood whether they could return to work and he informed them that work was still slack and he could not use them. However, he suggested that they call upon Crighton, who might be able to give them employment in other operations of the Respondent or Douglas Public Service." The next morning, November 12, 1949, five of the employees went to see Crighton. According to the latter, who is credited, the following occurred : 33 It was on Saturday, November the 12th: Henry Sharett, Emanuel Polk, Harry Sims, John Haynes and William Matthews came to my office, and I asked them what they wanted. They said they wanted to see me about employment at the Public Commodity Warehouse, and I told them that 31 Some of the General Counsel's witnesses testified that Grant came by their homes on the evening of November 7, but they were not in accord as to the statements made to them by Grant. Sharett, Matthews, and Wiggins testified that Grant told them to report to work in the morning. However, Harry Sims insisted that Grant "told me Mr. Wood said to come and get my money," and that Sims had no idea of the money Grant referred to. Sims denied that Grant informed him to report to work in the morning.. Polk and Ester were not at home that evening and received messages that someone had called. From his observation of the witnesses and for reasons elsewhere detailed herein, the undersigned credits Grant's testimony and the testimony of the General Counsel's witnesses insofar as such testimony was consistent with that of Grant. The testimony of the General Counsel's witnesses is rejected to the extent that it is at variance with that of Grant. 36 This finding is a synthesis of the mutually reconcilable testimony of all witnesses. 37 The findings in this and the preceding sentence are based upon the credible testimony of Wood. During the presentation of the General Counsel's case-in-chief, Harry Sims testi- fied that Wood stated that "he couldn't hire us back any more. He sent us down to see Mr. Crighton, talk to Mr. Crighton, maybe Mr. Crighton could give us a job" and according to Polk, Wood told them "it is not in my power to put you all back to work. I would be .going over the Company's orders to do so." Both were called as rebuttal witnesses. Sims then testified that Wood told them that "he couldn't give us our job back unless we joined the union, and he would like to put us back to work because he had a gang of green men that never understood the work." At this point, Polk's testimony was that Wood stated that the Respondent had a contract with Local 1616, that he had to carry out the Respond- ent's orders, and that he could not put the employees back to work unless they joined Local 1616. Clarence Sims testified that Wood stated "no consideration that he could give him unless" they saw Crighton. According to Haynes, Wood said, "Well, boys, I can't do you no good" and suggested they see Crighton. Johnson, who appeared for his pay on November 11 after the other employees had left, testified that nothing was said by Wood about joining Local 1616. The testimony of Coney and Matthews has been noted in footnote 28, supra. Wood denied that he told the employees that they had to join Local 1616 in order to work for the Respondent. Upon the entire record, including the undersigned's observation of the witnesses and factors elsewhere noted herein, the undersigned credits Wood's denials and version of the occurrence set forth above. The testimony of the General Counsel's witnesses is not credited where at variance with that of Wood. 33 As to this conference, the testimony of the General Counsel's witnesses was generally reconcilable with that of Crighton. GULF SHIPSIDE) STORAGE', CORPORATION 205 I did not do the hiring or firing there.. . . Then they recited the case and John Haynes after that did most of the talking and he said that his trouble was that with the question of the union up there, that he had worked for the company for many years and he did not know anything about the company having a contract with the union. I asked him how long he worked. He said he started getting, I think he said, "60 cents an hour" and I said do you recall getting an increase to 66 cents per hour. He said yes. I said do you recall getting retroactive pay, and he admitted that and I told him that that contract was negotiated between the company and Local 1616. And then I recited the increase that had taken place since this 60 to 66 cents an hour, I think, occurred back in '47, . . . When Haynes brought up his dispute with the union, I asked him if he had made a. mis- take and came to see Grant instead of me. because Grant was the President of 1616, and Grant was not present that day. It was a Saturday. We were closed. . . After I made that statement, they said no, they came to see you. And they showed me a piece of paper with my name on it 39 10. Conclusions a. As to credibility of witnesses The undersigned has not credited the testimony of the employees who were allegedly discriminatorily discharged or of the compress crew when at variance with the testimony of witnesses who impressed the undersigned as reliable wit- nesses, in the main, witnesses called by the Respondent and Local 1616. In addition to the undersigned's observation of the witnesses, there are several reasons for the foregoing resolutions of the conflicts in testimony: (1) One of the important factors in the case, in the undersigned's opinion, was the con- flict in jurisdiction over Local 1616 between the Teamsters and the I. L. A. The impact of this conflict in jurisdiction upon, and the Teamsters' vital con- cern in, the instant proceeding is obvious. Of these witnesses for the General Counsel all but Bush and Nelson were alleged by the Teamsters in its first amended charge to have been discriminatorily discharged by the Respondent on November 7, 1949. Their interest in the proceeding and the Teamsters' cause seems self-evident. (2) As set forth above, the testimony of these witnesses for the General Counsel was in many instances mutually contradictory as to important incidents and in some cases self-contradictory. Although it is gen- erally considered that a certain amount of variance among the testimony of various witnesses who give their recollection of a series of events, is to be expected and lends credence to their collective testimony, nevertheless, there is a point beyond which mutual and self-contradiction ceases to be believable, and when it reaches the degree evidenced in these witnesses' testimony, the contradictory nature of the testimony renders it unworthy of credence in toto or, at the least, to the extent it is at variance with testimony of witnesses who were reliable and/or who were supported by documentary evidence. (3) As previously noted, much of the testimony of these witnesses for the General Counsel was at variance with credible documentary evidence. (4) Some of these witnesses $D Sharett testified that on November 14, the Monday following the interview with Crigh- ton, Sharett, Sims, Polk, and others returned to Wood and told him that "Mr. Crighton told us he didn't have any bearings on that case at all." According to Sharett, Wood told them "to talk it over, he would need us to work, he couldn 't put us to work, unless we was in" Local 1616. None of the other employees testified as to such a meeting with Wood on November 14. Sharett's testimony is not credited. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were exceedingly vague, in the case of Wiggins for example ; and the testimony of others, like that of Riley and Ester, was incoherent to a great extent. (5) Even if their testimony were credited, certain portions seem to the undersigned to be highly implausible as not being in accordance with the probable course of events. Thus, aside from the mutual conflicts in their testimony, the em- ployees who were allegedly discharged discriminatorily, in general, insisted that they were told by the Respondent's representatives on November 4 and 7 that they could not receive their retroactive pay or continue to work for the- Respondent until they joined Local 1616. However, on November 11, 1949, the Respondent's position changed and Wood told them he was mistaken as to. their retroactive pay; they were entitled to it without obligation to join Local 1616 but nevertheless could not work for the Respondent unless they joined Local 1616. If Wood had discoyered the error of the condition on receipt of the retroactive pay, it seems more than likely that he would have been similarly apprised of the illegality of conditioning their continued employment upon.mem- bership in Local 1616 40 On the other hand, the testimony of the credited witnesses is in the main. mutually reconcilable as to the important events and, as previously indicated,. is supported by credible documentary evidence. These -witnesses impressed. the undersigned as being candid and sincere. Their testimony is also more plausible than that of the rejected witnesses, considering the record in its. entirety. b. As to the alleged discriminatory discharges It has been found that on November 7, 1949, there was no work for the shed crew employees and none was employed on that day. In fact, payroll records. for the cotton division list no employees as working on November 7 and 8, 1949. Emanuel Polk, Clarence•Sims, William Matthews, Daniel Johnson, Joe Giles,. John Haynes, Harry Sharett, Harry Sims, Joe Wiggins, Jimmy Coney, and John Ester were among the shed crew employes who were laid off. When they and two other members of the crew asked Wood whether they would work that clay, Wood told them that there was no work available and in response to their inquiry as to whether they were obliged to join Local 1616, Wood informed them that the Respondent had a contract with Local 1616 but that they did not: have to become members of that organization. Later that day, when one of the crew complained to Grant that the shed crew had been discharged, Grant investigated and discovered that the crew had. been laid off because of a shortage of work. Believing that there was a need. for more employees at his place of work, Douglas Public Service, Grant called at the homes of the employees who were laid off and told them. to report to work the- following morning. It was Grant's plan that they work temporarily for Douglas Public Service until the Respondent's cotton operations resumed. None of the employees appeared for work on November 8. On November 11, 1949, when the employees came to obtain the 2 days' pay which was withheld from the previous workweek, they were given such pay and also the retroactive pay, with the explanation that the latter in no way obli- 40 These conclusions as to credibility are in no manner based upon documents purportedly from the Louisiana Division of Employment Security setting forth the alleged reasons three employees claimed were the basis for the severance of their employment with the Re- spondent. These documents were introduced in evidence without objection , but in the opinion of the undersigned , they do not constitute probative evidence , being in the nature of hearsay. GULF SHIPSIDEI STORAGE CORPORATION 207 :gated them to join Local 1616. They asked whether they might return to work and Wood informed them, as payroll records show, that work was still slack and he could not use them. He suggested, however, that they call upon Crigh- ton and ascertain whether they might find temporary work at other operations of the Respondent or Douglas Public Service. On November 12, a committee representing the laid off employees called upon Crighton and apparently were -unable to make their mission clear to him. He informed them that he had no control of the hiring and discharging of employees at the Commodity Warehouse. After a brief discussion the employees left. Thereafter, the employees alleged in the complaint to have been discriminatorily -discharged never appeared at the Respondent's warehouse in the mornings, as part of the "bull gang" seeking employment. However, three other members of the shed crew who were included in the layoff of November 4 were reemployed -when the Respondent's cotton operations resumed in normal capacity. Two of these employees had signed application-for-membership cards in the Teamsters. The undersigned concludes that Polk, Clarence Sims, Matthews, Johnson, Giles, Haynes, Sharett, Sims, Wiggins, Coney, and Ester were not discharged but were laid off because of lack of work on November 7, 1949, and that after the Re- spondent resumed normal operations, they never applied for employment by following the customary practice of shed crew employees, namely, appearing each morning and being put to work from, the gang assembled. The under- signed concludes and finds that as to these employees, the Respondent has not -engaged in violations of Section 8 (a) (3) and (1) as alleged in the complaint. ,C. As to the Respondent's alleged domination of, and assistance to, Local 1616 1. The legality of the 1949 contract a. Local 1616's majority status The complaint alleged that "Local 1616 is not, and has at no time been , desig- nated or selected by a majority " of the Respondent's employees as their statu- tory representative. More specifically, the General Counsel contends that Local 1616 was not the majority representative of the Respondent's employees at the time the Respondent and Local 1616 executed the contract dated January 3, 1949, and that the contract is unlawful. As to the broad allegation of the complaint in respect to Local 1616 's lack of majority status, it is clear, in view of the foregoing findings, that such allega- tion is without merit and that in December 1939 , Local 1616 was the duly designated collective bargaining representative of the employees of the Respond- ent's predecessor , Douglas Shipside . It is also clear . that, inferentially, the Regional Director suggested that such was the case in his letter of December 28, 1939, informing Douglas Shipside that the C . I. O. petition had been with- drawn, and stating that the A. F. L. . was the only remaining party of interest. and that "assuming that proof which Mr. Donnels has shown or is willing to show statistics your interest in his claim , we suggest that you proceed with bar- gaining negotiations without further delay. " The undersigned finds that in December 1939, Local 1616 was the statutory representative of Douglas Ship- side's employees. On December 29, 1939, Douglas Shipside and Local 1616 executed their first contract, which contained closed-shop provisions . Thereafter,. the contracting -parties maintained their closed-shop agreements , except for a brief period about .1945, when proceedings before the War Labor Board resulted in a temporary 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD break in the written contracts. In April 1947, the Respondent became the, successor of Douglas Shipside and the closed-shop contractual relationship. between the Respondent and Local 1616 continued until the expiration of the contract immediately preceding the 1949 agreement. During this period, two- 9 (c) petitions filed by the C. I. O. were dismissed or withdrawn because Local 1616's contract was considered to be a bar to a representation proceeding. Pursuant to the closed-shop provisions of the contracts, Local 1616 had fur- nished employees at the request of Douglas Shipside and the Respondent in. 1947 and 1948. At the time when the parties were negotiating the terms of the- contract in issue and at the time they formally executed it, about January 3, 1949, no other labor organization claimed to represent the employees. In these negotiations, representatives of the I. L. A. assisted Local 1616.. Up to this. point, there is no indication that the Respondent had assisted, supported, or dominated Local 1616 or that the Respondent had any reason to suspect that. Local 1616 might not be the majority representative of its employees. It is true, as the General Counsel contends, that the record shows that few of the Respondent's employees were paying dues to Local 1616 at the time of the negotiation and execution of the January 3, 1949, contract,41 that Local 1616 never proceeded with a union-shop authorization election after the execu- tion of the contract, that the contract was later reopened in June by a letter from Local 1616 to Douglas Public Service, and that a War Labor Board pro- ceeding held in 1944 was between Douglas Public Service and Local 1616 and no mention was made therein of the contractual status between Local 1616 and the. Respondent. As to the latter two matters, the undersigned finds that they cast no doubt upon Local 1616's majority status for the reason that Local 1616 had. made it a practice, after the execution of the original contracts in 1939, of jointly negotiating with representatives of Douglas Shipside (and subsequently the Respondent) and of Douglas Public Service. Moreover, according to Crighton's credible testimony, the Respondent's predecessor and Local 1616. agreed to be bound by the decision reached in the War Labor Board proceeding between Local 1616 and Douglas Public Service. In view of the history of the closed-shop contractual relationship between Local 1616 and the Respondent, the fact that Local 1616 supplied employees- for the Respondent, upon request, and the entire record in .the case, the under- signed is of the opinion and finds that the factors relied upon by the General Counsel are insufficient to establish his statutory burden of proof that Local 1616 was not the majority representative of the Respondent's employees at the time of the negotiation and execution of the contract in issue. The undersigned 41 The record shows that in 1947, 31 employees of the Respondent paid dues to Local 1616. Ernest Bradley, who collected such dues, testified that these 31 employees con- stituted a majority of the employees working for the Respondent at that time . He also testified that he collected dues at other times but Local 1616's records of such collections had been lost. Fragmentary records , consisting of all those extant , were produced by Local 1616 at the hearing. These records and testimony of Local 1616's officials show that only a few employees of the Respondent were paying dues at the time of the execution. of the 1949 contract and of the later supplement thereto. However, according to Albert Williams who preceded Grant as president of Local 1616, employees whom Williams had supplied Douglas Shipside and the Respondent in 1947 and 1948 had promised they would join Local 1616 and employees at the Respondent 's St. Maurice warehouse had given him similar promises in June 1949 . Grant testified, as noted above, that when he assumed the presidency of Local 1616, many of its records had disappeared and being of the under- standing from reports of the former president that the Respondent 's employees "belonged to .us," he started a campaign in August 1949 to interest the employees in Local 1616 and "to, collect dues from them." • GULF SHIPSID'Ei STORAGE CORPORATION 209 concludes that the record fails to controvert the presumption "that the majority status of a designated bargaining agent continues until the contrary is shown" u or to cast any doubt upon the Respondent's good faith in continuing to recog- nize and bargain with Local 1616 as the statutory representative of the Re spondent's employees. b. The union-security provisions of the 191,9 contract As previously noted, the 1949 contract between the Respondent and Local 1616 contained a provision that all employees who were covered by the agreement and who were members of Local 1616 on the date of the signing of the contract should remain members in good standing as a condition of 'continued employ- ment by the Respondent and that any new employees, who would be within the bargaining unit, should become members of Local 1616 within 30 days from the date of their employment. These provisions were subjected to a proviso, however, that they "shall not take effect until an election has been conducted by the National Labor Relations Board and a majority of employees in the unit have authorized a union shop in accordance with law." The parties to the contract have never put into effect the union-security provisions and no election under Section 9 (e) of the Act was held for the purpose of authorizing the Respondent and Local 1616 to enter into a maintenance of membership agree- ment. The General Counsel contends that the union-security provisions of the con- tract, per so, constituted unlawful support and assistance to Local 1616 because they provided "for a greater degree of union security than that permitted by Section 8 (a) (3) of the Act." In support of his contentions, the General Counsel relies upon the Resnick case,' wherein the Board found a contract's union-security provisions, broader in scope than permitted by Section 8 (a) (3) of the Act, and containing no proviso as to its effective date, to be violative of Section 8 (a) (1) and (2) of the'Act. The undersigned is unable to agree with the argument advanced by the Gen- eral Counsel for the reason that the union-security provisions of the contract in the instant proceeding are clearly distinguishable from those in the Resnick case. That is, the union-security provisions of the contract between the Re- spondent and Local 1616 specifically provided that they should not go into effect until "an election has been conducted by the National Labor Relations Board and a majority of the employees in the unit have authorized a union shop in accordance with law." On the other hand, the union-security provi- sions of the contract in the Resnick case became effective, so far as its terms were concerned, immediately upon its execution. In recent representation cases, the Board has held that a contract with un- authorized union-security provisions but with a saving clause that such provi- sions shall not take effect until such time as their legality is established in the future is "clearly lawful" and may operate as. a bar to a representation proceed- ing." In the undersigned's opinion, the proviso of the instant contract meets the test established by the Board. The contract specifically provided that its union-security provisions should not become effective until a union-shop authori- zation election was conducted and until a majority of the employees in the unit 42 N. L. 1. B. v. Harris-Woodson Company, Inc., 162Y. 2d 97 (C. A. 4). 41 Julius Resnick, Inc., 86 NLRB 38. " Barium Steel and Forge, Inc., 88 NLRB 564; Wyckoff Steel Company, 86 NLRB 1318; Schaefer Body, Inc., 85 NLRB 195. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "have authorized a union shop in accordance with law." The undersigned con- cludes that these provisos effectively deferred the application of the union- security provisions and accordingly that the latter did not affect the legality of the contract or constitute unlawful support and assistance to Local 1616. c. The applicability of the Midwest Piping doctrine °u In summation of the earlier findings, it will be recalled that the Respondent and Local 1616 executed their latest collective bargaining contract on or shortly after January 3, 1949. The contract was to be effective until September 30, 1950, and provided that it might be reopened annually "by either party desiring a change in wage provisions or working conditions" upon 90 days' notice prior to September 30, 1949, and September 30, 1950. Identical provisions were con- tained in the contract between Douglas Public Service and Local 1616. In June 1949, the Teamsters commenced its organizational activities among the Respond- ent's employees. On June 25, 1949, Local 1616 served notice upon Douglas Public Service of its desire to reopen the contract in order to discuss a wage increase, and by this notice, the parties deemed the contract between Local 1616 and the Respondent also reopened. Joint negotiations on the two reopened contracts, covering the employees of the Respondent and Douglas Public Service, respec- tively, commenced in July and continued until October. Meanwhile, during these negotiations, the I. L. A. relinquished jurisdiction over Local 1616 to the Team- sters in August 1949. However, the Respondent was not advised of such relin- quishment. By letter dated September 15, 1949, the Teamsters asserted to the Respondent that the former was "the duly authorized representatives of your em- ployees, coming under the jurisdiction of the Gen'l Truck Drivers Local #270," and requested an appointment. On September 21, 1949, the Teamsters filed with the Board in Case No. 15,-RC-314a 9 (c) petition for certification as the statutory representative of the Respondent's employees. On or shortly after November 1, 1949, the Respondent and Local 1616 executed a supplement to their 1949 con- tract. The supplemental agreement provided for a wage increase, a renewal and reaffirmation of the other terms and conditions of the master contract, and a further extension of the terms of the master contract until September 30, 1952. The General Counsel contends that by entering into the supplemental agreement on or about November 1, 1949, in the face of the Teamsters' pending petition before the Board, the Respondent violated the Midwest Piping doctrine and "usurped the exclusive right of the Board to determine said question.of repre- sentation." The Respondent contends that the filing of the Teamsters' petition in September 1949, during the pendency of the Respondent's wage negotiations with Local 1616 pursuant to their contract, gave the Respondent no reason to question Local 1616's majority status because of the existence of the contract executed by the Respondent and Local 1616 in January 1949. At this point, it will be helpful to set forth the following restatement, made relatively recently by the Board,'° of is holdings in the Midwest Piping and Spiewak" cases : Both cases stand for the proposition that, when an employer is confronted with conflicting claims for recognition which are sufficient to create a question concerning representation, he violates the Act if he unilaterally resolves the representation question and accords exclusive recognition to one of the two 4 Midwest Piping and Supply Co., Inc., 63 NLRB 1060. 10 Lift Trucks, Inc., 75 NLRB 993, 1000. 47 I. Spiewak & Sons, 71 NLRB 770. GULF SHIPSIDE STORAGE' CORPORATION 211 rival labor organizations . ( Citing, Radio Corporation of America, 74 NLRB 1729.) But it is not every rival claim that imposes a duty upon the employer to refrain from granting exclusive recognition to one of the competing unions. The claim must be of such character and must be made at such time as to create a question concerning representation. [Emphasis in the original.] 48 Manifestly, the initial question to be, determined as to the Midwest Piping issue is whether at the time the Respondent executed the November supplemental agreement with Local 1616, a question concerning the representation of its em- ployees had arisen. Such a question did not necessarily arise by the filing of the Teamsters' 9 (c) petition. More specifically, the contractual relationship between the Respondent'and Local 1616 may operate as a bar to a determination of representation'' Turning then to these issues, the first to be considered are the union-security provisions of the contract between the Respondent and Local 1616. As found in the immediately preceding section of this Report, the proviso to the union- security provisions effectively deferred their application until such time as they were lawful and therefore it may not be contended that such provisions obviate the contention that the contract was a bar to a determination of representation. The second point to decide is whether the supplemental agreement's premature extension of the original term of the contract rendered the contract nugatory as a bar to a determination of representatives. Under the doctrine of the Republic Steel 50 case, decided by the Board on June 23, 1949, it is clear that the Teamsters' petition was untimely filed and that the contract between the Respondent and Local 1616 would constitute a bar for the period of its original term, that is, until September 30, 1950."4 . At or near the end of the original term, a petition by a contesting labor organization might be entertained without regard to the extended term of the supplemental agreement. A third factor to consider is that raised in the Schaefer Body case v2 as to whether Local 1616 was a dormant or nonfunctioning bargaining agent so far as the Respondent's employees were concerned. It is true that some of the factors relied upon by the Board in determining in that case that the contracting labor organization was a defunct organization apply to the facts of the instant case. At the time in question, not many of the Respondent's employees were paying dues to Local 1616. Local 1616 had not sought an election to authorize a union shop. Its officers were employed by Douglas Public Service and not by the Respondent. It does not appear that Local 1616 publicized its meetings among the Respondent's employees." On the other hand, the record reveals other 48 In this regard, see also Ensher, Alexander & Barsoom, Inc., 74 NLRB 1443, wherein the Board made the following statement in respect to the Midwest Piping case : That doctrine , necessary though it is to protect freedom of choice in certain situa- tions, can easily operate in derogation of the practice of continuous collective bar- gaining, and should , therefore , be strictly construed and sparingly applied. 4e For the purpose of ' discussion , it will be assumed that the jurisdictional dispute over Local 1616 between the Teamsters and the I. L. A. would not deter the Board from proceed- ing in a representation case. Grinnell Company o f the Pacific, 71 NLRB 1370. 50 Republic Steel Corporation, 84 NLRB 483. 51 See also West End Chemical Company, 89 NLRB 611 ; Republic Steel Corporation, 89 NLRB 500. Sz Schaefer Body, Inc., 85 NLRB 195. ,3 Nor, for that matter, did the Teamsters to any extent . Testimony of various employee witnesses that they never heard of Local 1616 prior to November 4 and had no knowledge as to the reason for the retroactive wage payment on November 4 is not persuasive , particularly as to those who had been in the Respondent 's employ in December 1948, when a retroactive wage payment was given the employees pursuant to the terms 917572-51-vol. 91-15 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD factors which impel the conclusion that Local 1616 was a functioning bargaining agent for the Respondent's employees, even if it was not particularly militant, efficient, or brilliant in its efforts. For example, with the inauguration of Grant as president of Local 1616, he and Jones commenced in August 1949 to discuss Local 1616 with the Respondent's employees. Two shop stewards served as representatives of the Respondent's employees. In 1948, under the existing closed-shop contract, Local 1616 had furnished employees for the Respondent at its request. - Moreover, it is clear that Local 1616 held regular meetings and had the usual roster of officers. And in August 1949, at a membership meeting of Local 1616 a resolution to reject the transfer of Local 1616 from the 1. L. A. to the Teamsters was unanimously approved.' Moreover, at the time in question, officers of Local 1616 were negotiating a wage increase for the employees of the Respondent and Douglas Public Service, and at such time, so far as thou Respond- ent was concerned, Local 1616 was a functioning bargaining agent. The record also reveals that not more than 25 employees of the Respondent, if, that, had signed application cards in the Teamsters in June. These 25 by no means constituted a majority of the Respondent's employees. In view of these factors and the conclusions reached elsewhere in this Report, as well as the fact that the record fails to disclose any reason for the Respondent to doubt Local 1616's majority status at the time in question, the undersigned finds that it may not be urged that Local 1616 was an inactive organization as a reason to remove the bar of its contract to the representation proceeding. In view of the foregoing, the undersigned concludes that the Teamsters' petition was untimely filed, that the contract between Local 1616 and the Respond- ent operated as a bar to such petition, that no real'question concerning repre- sentation of the Respondent's employees existed at the time the Respondent and Local 1616 executed the supplemental agreement to their 1949 contract, and that, accordingly, the doctrine of the Midwest Piping case is inapplicable to the instant proceeding. The undersigned further finds that the Respondent's execu- tion of the supplemental agreement with Local 1616 was not per se violative, of the Act. d. The extension of the original term of the 1949 contract There remains for discussion whether the supplemental agreement's extension of the original term of the master contract for a 2-year period constituted unlaw- ful support of assistance to Local 1616. In view of the findings made above, the undersigned is of the opinion that Local 1616 was not unlawfully assisted by such extension of term. Under the Board's decisions in representation cases, it is clear that upon the date on which the contract's original term expired, the con- tract was at most a defeasible agreement and that after such date it could not operate as a bar to a representation proceeding. Therefore, assuming that a representation proceeding ensued near the end of the original term or during the extended term (between September 30, 1950, and September 30, 1952) and an election was ordered by the Board, the contract between Local 1616 and the Respondent then became defeasible, being dependent for its continuance upon Local 1616's winning the election. If it was victorious in the election, then the parties to the-contract might lawfully operate thereunder for the period of its of the last contract between Local 1616 and the Respondent. Representatives of Local 1616 were present at the time that retroactive wage payment was made. "' The jurisdictional issue herein is clearly not the situation in Boston Machine Worker Company, 89 NLRB 59, wherein a schism resulted in a loss of all members of the cou-- tracting union and the contracting union's disintegration. GULF SHIPSID'F STORAGE CORPORATION 213 extended term. However, should Local 1616 fail to win such an election, the contract would become void. In view of these considerations, and the entire record, the undersigned finds that the supplemental agreement's extension of the original term of the contract between Local 1616 and the Respondent did not afford unlawful support or assistance to Local 1616. 2. Local 1616's solicitations in October and November As found above, with the Respondent's knowledge in mid-October 1949, rep- resentatives of Local 1616 met with some employees of the shed crew during their lunch hour. The discussion continued for a few. minutes past the luncheon period into the worktime of the employees. Inasmuch as all labor organizations were permitted by the New Orleans Dock Board access to the docks and warehouses for organizational purposes during lunch hour and as the record shows that the Teamsters solicited memberships at the warehouse occupied by the Respondent during the noon hour, it cannot be said that the organizational activities of Local 1616's representatives on the property of the Respondent constituted unlawful support or assistance to Local 1616. Moreover, the fact that the discussion con- tinued for a few minutes past the lunch hour into working time is, in the under- signed's opinion, so trivial as not to warrant a finding that the few minutes' working time of the employees taken by the representatives of Local 1616 in their discussion constituted unlawful assistance or support. Later, on November 4, representatives of Local 1616 talked briefly with a few employees before lunch time, but at a time when the employees were not work- ing, having been told to "scatter out" so that their foreman would not.notice that they were out of. work. For the same reasons stated above, the undersigned does not find that this activity of Local 1616, which was not known to the Respond- ent, constituted unlawful support or assistance to Local 1616. 3. The collection of dues by Local 1616 in November 1949 As detailed above, on November 4, 1949, the employees were paid their retro- active pay which was one of the provisions of the supplemental agreement executed about November 1, 1949. Pursuant to the custom which the contracting parties had followed for a number of years, Local 1616 requested that it be given advance notice of the day on which retroactive pay was to be made so that it might have representatives present to collect dues. The Respondent informed Local 1616 that the retroactive pay resulting from the supplemental agreement, would be paid on November 4, 1949, and permitted the financial secretary to use a desk in the office where the retroactive pay was distributed. The employees were given their pay at or near the end of the work day, and left the Respondent's warehouse after being paid. As found above, none of the Respondent's repre- sentatives instructed the employees to pay dues to Local 1616 or told them that. they could not receive the retroactive pay or continue to work for the Respondent in the future, unless they paid such dues. At this time, the financial secretary of Local 1616 collected dues. It seems clear that such collections were not made during working hours, in the ordinary sense of the term. Although the practice This finding is based upon the following evidence : Payroll records show that on November 4, most of the employees worked 7 or 8 hours. Various witnesses testified that they were told to cease work and go to the office for their pay around 4 , 4: 30 or 4:45 p . m. The shed crew employees , commenced work at 8 a. m. and had an hour off for lunch . Some time was consumed in making the payment and employees waited in line for their turn to be paid . It would therefore appear that it was at or near the encl. of the normal workday when they were paid off. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD followed by the Respondent of notifying Local 1616 of the date when retroactive wage payments would be made and of permitting representatives of Local 1616 to be present at such payments, may have afforded that organization some measure of support and assistance in the collection of dues, the undersigned is of the opinion that this practice, standing alone, is not sufficient to warrant a finding that the Respondent thereby violated the Act. Upon the foregoing conclusions and the entire record, the undersigned con- cludes and finds that the Respondent has not dominated and interfered with the administration of Local 1616 or contributed financial and other support to it, as alleged in the complaint, and accordingly has not engaged in violations of Section 8 (a) (2) and (1) in respect to Local 1616. In view of the conclusions reached in earlier sections of this Report, the undersigned further finds that the complaint's allegations of independent violations of Section 8 (a) (1) on the part of the Respondent have not been sustained. In view of the foregoing conclusions, the undersigned concludes that the evi- dence warrants no finding that the Respondent committed unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) of the Act and will there- fore recommend that the complaint be dismissed in its entirety. On the basis of the foregoing and upon the entire record in the case, the under- signed makes the following : CONCLUSIONS OF LAW 1. Gulf Shipside Storage Corporation is engaged in commerce within the mean- ing of Section 2 (6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Truck Drivers, Chauffeurs, Warehousemen and Helpers Local No. 270, A. F. L., and Local 1616, International Longshoremen's Association are labor organizations within the meaning of Section 2 (5) of the Act. 3. Gulf Shipside Storage Corporation has engaged in none of the unfair labor practices alleged in the complaint. [Recommended Order omitted from publication in this volume.]