Jarka Corp. of Philadelphia

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. We find that all production and maintenance employees, exclud- ing office clericals, guards, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] JARKA CORPORATION OF PHILADELPHIA and WILLIAM J. WALKER LOCAL 1291, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION and WILLIAM J. WALKER LOCAL 1291, INTERNATIONAL LONGSHHOREMEN'S ASSOCIATION and WIL- LIAM D. RICIIARD5ON. Cases Nos. 4-CA-251, 4-CB-!^1, and 4-CB- 45. May 7, 1951 Decision and Order On September 25, 1950, Trial Examiner Albert P. Wheatley issued his Intermediate Report in this consolidated proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent Union and the General Counsel filed exceptions to the Intermediate Report, and supporting briefs. As the International Longshoreman's Association (AFL) (hereinafter called the International) Is a direct party to collective bargaining agreements in the Philadelphia area, it was permitted to file a brief in opposition to the Intermediate Re- port. The Respondent Company filed no exceptions to the Inter- mediate Report. The request for oral argument of the Respondent Union and the International is hereby denied, as the record, the exceptions, and the briefs, in our opinion, adequately present the issues and the positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed, The Board has considered the Inter- '.Although the complaints enlarged upon the charges original'y filed, we find no merit in the Unions' contentions that the enlargement was barred by the 6-month limitation contained in Section 10 (h) The additional unfair labor practices were committed no longer than 6 months before the filing and service of the original charges, and were there- fore propeily included Nor is it material that the enlargement of the complaint was 94 NLRB No. 54. JARKA CORPORATION OF PHILADELPHIA 321 mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following modifications and additions. 1. Like the Trial Examiner, though not for the reasons assigned by him, we find no merit in the General Counsel's contention that the Respondents violated the Act by entering into an agreement or ar- rangement calling for the preferential hiring of union members. In November 1949, the Philadelphia Marine Trade Association (PMTA), on behalf of its members including the Respondent Com- pany, submitted a proposed draft of a collective bargaining agreement containing the "union-security provision" set forth in the Intermediate Report, to the International Longshoremen's Association, Locals 1291 (the Respondent Union), 1290, and 1694. The record establishes that the parties are operating according to those terms of this unsigned tentative agreement on which they have reached general agreement, but there is no evidence that the union representatives ever agreed to, or even discussed, the proposed "union-security" provision.2 More- over, there is no evidence that the parties operate under that provision or any other basis from which we can conclude that they have, by conduct, accepted the tentative provision on this subject. Under these circumstances, we conclude that a preponderance of the evidence fails to support any finding that the parties entered into an agreement con- taining a "union-security" clause. Accordingly, we do not pass upon the legality of the clause contained in PMTA's offered contract relat- ing to union security.d 2. We agree with the findings of the Trial Examiner, to which the Respondent Company did not except, that the Respondent Com- pany, through its union-member hiring foremen ,4 followed the prac- based, in part, upon amended charges filed mole thin fi months atter the alleged unfair labor practices .Cat/req Lsmbei Company, 86 NLRB 157, 162-163, enfd 185 F 2d 1021 (C A 5) , Gaynor News Company, Inc, 93 NLRB 299, Radio Station KVI]C, 93 NLRB 618. Kansas Milling Company v N L R B, 185 F 2d 413 (C A 10) We likewise find no merit in the Respondent Union's contention that the Union's bylaws were inadmissible in evidence See Chicago Typographical Union and International Typo- graphical Union, 86 NLRB 1041 , N L R B v Bradford Dyeing Assn, 310 U S 318, 338-40 2 The Trial Examiner found that the Respondents had not agreed on the phraseology of this clause, but concluded, from ei]dence showing that both knew that preferential hiring wis illegal and neither nitended to request or accept ani illegal union-security pi orisron, that they were "in agreement as to its substance " We ai e unable to find substantial agreement between the parties from the mere fact that they separately iesolved to seek the ,ante result I Nor do we have before us the question to which the International directs our attention iii its hncf, i e , whether there ran be a legal union shop, conforming to the limitations of the proviso to Section 8 (a) (3), when the employees in the industry do not generally work for one employer for as many as 30 consecutive dais i Such hiring foremen are supervisors whose conduct, without regard to their personal motivation, is attributable to then employer when, as here, they engage in conduct prosciil and by the Act in the course of th'rr e - ''m- 'ent New^papei and Mail Uelri,rrara' Union of New York and Vrcinsty, et al , 93 NLRB 237 953841-52-vol 94--22 322 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD tice of granting preferential hiring to union members in good standing, and acceded to requests or instructions from union delegates to dis- criminate in hiring against nonunion applicants and union members not in good standing,5 thereby violating Section 8 (a) (1) and 8 (a) (3) of the Act. 3. The Trial Examiner also found, and we agree, that the Re- spondent Union violated Section 8 (b) (1) (A) and (2) by causing the Respondent Company and other companies engaged in the busi- ness of general stevedoring in the Philadelphia area to make a practice of giving preference in employment to union members. In making this finding, the Trial Examiner relied on evidence which satisfied him that the union delegates,° whose duties, as defined in the Respondent Union's bylaws, include seeing that "no outsiders be permitted to work as long as union men are available," appear regularly at shape-ups where they request hiring foremen to give preference to union members and seek to obtain preferential employ- ment for union members by threatening hiring foremen with the imposition of a fine for violating an alleged union rule requiring preference for union members.' The Respondent Union and the International contend that the section of the bylaws containing the clause quoted above has been in- formally suspended S and that, in any event, the evidence does- not warrant finding any union rule which imposed a fine upon hiring foremen who failed to hire union men first. The bylaws contain no provisions relating to the duties or liabilities of hiring foremen as such, although all union members are required to yield strict obedience to union officials and to such rules as the Union may see fit to adopt. Although the record shows that at least some of the union-member hiring foremen had heard of the fine, there is no evidence that the alleged rule was ever officially promulgated or enforced. Unlike the ,Trial Examiner, we therefore believe the evidence insufficient to sup- port- his inference that the delegates generally attempt to secure ,preferential hiring by threatening to fine recalcitrant foremen. We have, however, no similar doubt that, during the period in question, the union delegates followed the practice of requesting and L The record indicates that all the regular hiring bosses for the Respondent Company were also members of the Respondent Union The three hiring bosses for the Respondent Company who testified admitted that they generally hired union men first fi As the delegates are elected officers of Respondent Union , there can be no question of the Respondent Union's liability for even unauthorized acts committed in the course of performing their express duty under the Union 's hyla s s "to see that the foremen hire the men qualified to do the work " See United Furniture Workers of Anter ica, CIO (Colonial Hardwood Floorsn % Co , Inc ), 84 NLRB 563, 583 . Bitner Fact Co , 92 NLRB 953 "Union Responsibility for Acts of Officers and Members." 49 Coluui . L Rev 384 7 See Newspaper and Mail Deliverers' Union of New York and V1c inntnl, et al . 93 NLRB 237, Ibid, 93 NLRB 419, where the Board found such threats addressed to union- member hnmg foremen proscribed as attempts within the meaning of Section 8 (b) ,(2). s Considering the basis for our decision herein , we need not decide whether the evidence supports the Unions ' contentions that the bylaw has been suspended JARKA CORPORATION OF PHILADELPHIA 323 securing preferential hiring for union men. The assistant financial secretary of the Respondent Local, James T. Moke, admitted that the rule of the Union in 1949 9 was stated on the "Temporary Work Cards," issued to nonmembers : "book men were to be hired first." to He testified that this rule was "enforced" by delegates at the shaping points. He also reported to the Board that the Union was, on June 15, 1949, permitting "a [nonunion] man to finish out any day that he is hired when our Wien are not available.""' These admissions and the record as a whole including the instances of discrimination against specific individuals found below convince us of the Respondent Union's success in getting the Respondent Company, and other com- panies in the area with "shape-ups" within the jurisdiction of its delegates, to engage in the practice of granting preferential employ- ment to union men. On these facts we find that the Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. It is immaterial that the Respondent Union secured preferential hiring for union members by merely requesting it from union-member hiring foremen. When, as here, a union's request for discrimination ,secures and maintains discriminatory practices on the part of the employer, the causal connection between the request and the employer's discrimination supports a finding that the union, in violation of Section 8 (b) (2), caused the employer to violate Section 8 (a) (3).12 We likewise find no merit in the Respondent Union's contention that this conduct, being directed to the Einployer rather than the em- ployees, did not result in restraint and coercion of employees pro- scribed by Section 8 (b) (1) (A) because there is no evidence that the Union either threatened the employees with physical violence or economic reprisal or attempted, in any way, to induce any employee to join the LTniori.11 By causing the employers to pursue preferential hiring practices, the Respondent Union obtained actual economic re- prisal against nonmembers and members who had- lapsed from good standing, effectively restraining such employees in their guaranteed o In considering the impact of the ru'.e upon the Employer's operations, we are not passing upon the general validity of the rule in the province of the internal affairs of the labor organization See Sub Grade Engineerinq Company, 93 NLRB 406 10 As the record contains no evidence that these cards were used in obtaining employ- ment, we do not adopt the Trial Examiner's finding that card holders were accorded preference by the hiring bosses ovei those who were neither members nor card holders it This statement occurs in a letter, introduced in evidence, written by Moke in reply to an inquiry from a Board held examiner concerning the Union's compliance with the Board-approved settlement of May 3, 1948, in Case No 4-CB-4. The settlement recog- nized the legality, under Section 102 of the Act, of the preference provisions contained in the contract then in effect Although the statement indicates compliance with the terms of the settlement, it also indicates that the practices had continued after the expiration of the contract 32 See Sub Grade Engineering Company, supra Member Murdock, who dissented in that case, deems himself bound by the decision therein 11 See New York State Employers' Association, Inc, and Red Star Express Lines of Auburn, Inc, 93 NLRB 127 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right, under Section 7, to refrain from joining or assisting labor organizations in the absence of an agreement validly conditioning employment upon membership in the Union, and thereby violated Section S (b) (1) (A): 4 4. We find, as did the Trial Examiner, that in the course of such discrim-natory hiring practices, the Respondent Company vio- lated Section 8 (a) (1) and (3) of the Act by specifically discriminat- ing against William J. Walker and William D. Richardson," at the request of Union Delegates Varlack and Kavalauskas, and that the Respondent Union, having caused the Company to do so, thereby violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act.is As the Trial Examiner found, the Respondent Company's hiring boss, Craft, had given TValker a work assignment on May 11, 1949, when Union Delegate Varlack spoke to Craft. According to Walker, Craft then told him he was sorry but Varlack had told him not to. carry Walker that day; Walker, without questioning Craft further. then volunteered to see Varlack, who told him to go to see the financial secretary at the union hall and to pay up his past dues. Walker ftr- iher testified that, after reporting Varlack's instruction to Craft, he went to see the financial secretary, Ford, who said: "You know you can't work if you are back on your dues." Walker had not paid dues since 1947. Varlack admitted talking to Craft about Walker, but claimed that he had merely reported complaints, made by other members of the gang with whom Walker had worked the day before, as to Walker's unfitness for the job involved. The Trial Examiner discredited Varlack, finding further that Walker's credited testimony warranted the inference that Varlack had indicated to Craft that Walker was unacceptable for the reasons which he found Varlack gave Walker 17 Neither Craft nor Ford testified. 14 See Sub Grade Engineering Company, supra i1 The Respondent Company did not except to this finding We find no denial of due process in the fact that the complaint in Case No 4-CA-251, which alleged that the Company had discnmmated "in regard to the employment of employees, including William J Walker," was not amended to name Richardson In addition to the tact that the complaint in 4-CA-251 refers to "employees" generally, the complaint in the companion case, 4-CB-45, specifically names Richardson Moreover, the matter was fully litigated Section 102 9 of the Board's Rules and Regulations Series 6, authorizes "any person" to file the charge requiied by Section 10 (a) of the Act Accordingly, the fact that Richardson did not himself file against the Company is immaterial and cannot be regarded as a waiver of the public interest in remedying the violation found "Sub Grade Engsneerinq Company, supra 17 Unlike, the Trial Examiner, we do not believe that Val lack's testimony relating to any conversation he may have had with Wall cr is contraiy to Walker', testimony thereon Walker testioed as follows. "I went to Henry [Varlack] and asked him, I says, `Henry, what is the matter'' Why I can't go this morning"' He sacs. 'Well,' say, `you are not up in your dues and you have to go to 11ie hall and see Ford, financial see] etarv' ' Union counsel addin ed the toilonnng testimony Boni Viii lack "Q iii Walker stated that he then cane over and had a discussion with you and that you told him that lie was not being allowed to woiIi because ha was not a member of the union is that true" A That is false " The asserted f,,lsiti of the testimony erroreously attributed to Walker has no. bearing upon the truth of Walker's testimony, which was uncontroverted JARKA CORPORATION OF PHILADELPHIA 325 The Respondent Union excepted to the Trial Examiner's inference concerning what Varlack said to Craft when he requested Walker's dismissal. Like the Trial Examiner, we discredit Varlack's testimony to the effect that he requested Craft not to use Walker because of con= plaints made by other members of the gang as to Walker's fitness for the scrap-iron work involved on May 11, 1949. We note that this credibility finding is corroborated by Walker's testimony that he had never heard any complaint against him and that he had worked on several scrap-iron jobs between January 9, 1949, and May 15, 1949. In this posture, the record permits finding either that Varlack told Craft to discharge Walker because he was in arrears in his union dues or that Varlack, without giving any reason, merely asked that Walker be discharged. Under either version, the Respondent Employer vio- lated Section 8 (a) (3) by complying with Varlack's request,18 there- fore we need not determine which statement Varlack made. On June 7, 1949, Hiring Boss Gibbs had given William D. Richard- son a work ticket, when, according to Gibbs' credited testimony, Union Delegate Kavalauskas approached him and said, "You have to get a union man." Gibbs then took the ticket from Richardson and "got a union man." Richardson's version of the episode, which the Trial Examiner sets forth in detail, is essentially the same.1° Kava- lauskas admitted telling Gibbs to take the ticket back from Richard- son but testified that he had done so on the ground that Richardson was physically unfit for work. He denied requesting preferment for a union or "button" man. The Trial Examiner discredited Kava- lauskas, and credited Richardson and Gibbs, on this matter.11 The Respondent Union contends that the Trial Examiner's credibil- ity findings ignore uncontroverted evidence which corroborates the testimony of the discredited union witnesses. The material facts relating to these two instances of specific discrimination, set forth above, do depend, to a large extent, on the determination of the credibility of the witnesses. However, we have considered the Trial "Thus even if Cialt retused to carry walker for no other reason than that Varlack had asked hum not to do so, the Respondent Employer violated Section 8 (a) (3) by unlawfully delegating control over employment to the Union. See Pinkerton's National Detectii,e Agency, Inc, 90 NLRB 205, N L. R B v Daniel Hanna Drayage Co, Inc, 185 F 2d 1020 (C A 5), enfg 84 NLRB 45S \Ioreovei, the Respondent Employer did not except to the finding of discrimination ii Both testified that I avalauskas requested preference for a union "book" or "button" man As that is the material issue here, we consider other variations between their testimony irrelevant 20 Although we accept the Trial Exanunei's finding that Richardson applied for work about June 9, 1949, and that Gibbs explained his refusal to give him a ticket by saying, "I can't afford to pay out no fine for you. I want to do you a favor, but I can't pay out a fine for nobody," we do not infer therefrom that the Union is responsible for threatening to impose a flue upon Gibbs for failure to grant the request or that such a threat was the operative factor in Gibbs' concession on June 7, 1949 The explanation is not incon- sistent with Gibbs' testimony that lie had heard of the fine from members but had neither been threatened with such a fine by a delegate nor been fined 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner's resolution of conflicting testimony on the material facts with regard for the consistency and inherent probability of the testi- mony as a whole and the fact that the Examiner, not the Board, -observed the witnesses, and are satisfied that the Trial Exam ner'•s credibility resolutions are supported by the clear preponderance of all the relevant evidence.21 Accordingly, we find no merit in the Union's contentions. Accepting the Trial Examiner's credibility findings, we find that a preponderance of the evidence establishes that Union Dele- gates Varlack and Kavalauskas, by their requests, caused the Re- spondent Company to discriminate against Walker and Richardson in violation of Section 8 (a) (3), thereby violating Section 8 (b) (2) and Section 8 (b) (1) (A). The Remedy Having found that the Respondents engaged in certain unfair labor practices, we shall order them to cease and desist therefrom and to take affirmative action necessary to effectuate the policies of the Act. We shall order the Respondent Company, upon application'22 to offer William D.-Richardson and William J. Walker employment in available jobs, without regard to their membership or nonmembership in the Respondent Union or in any other labor organization, and without prejudice to their seniority or other rights and privileges. We shall further direct the Respondent Company to notify Richard- son and Walker in writing that, upon their application, it will offer them employment in available jobs on such nondiscriminatory basis. In addition, we, shall direct the Respondent Union to notify the Re- spondent Company in writing that it has no objection to the Com- pany's employment of these and other persons without regard to their membership in good standing, membership, or uomnembership in the Union. We shall further order the Respondent Company and the Respond- ent Union jointly and severally to make whole Richardson and Walker for any loss of pay they may have suffered as a result of the discrimi- nation against them .23 The Respondents, however, shall not be liable for back pay for any day when, absent discrimination, Richardson and 21 Standard Dry Wall Products, Inc, 91 NLRB 544 12 Application for employment is appropriate in this case in view of the fact that the discrcminatees are part of the Respondent Company 's extra labor force , hired on a day-to- day basis at the "shape-up " See Newspaper and Mail Delwei ers' Union of New York and Vicinity ( The Hearst Consolidated Publications, Inc ). 93 NLRB 237 23 In computing the amount of back pay due the founula enunciated in F IV Wool- worth Company, 90 NLRB 289, shall be followed. JARKA CORPORATION OF PHILADELPHIA -327 Walker would not have been employed. Walker's loss of pay shall be computed from the date of the discrimination against him to the date on which he left the water front.24 Richardson's loss of pay shall accrue from the date of the discrimination against him.25 However, the Union may terminate its liability for further accrual of back pay by giving the Company the notice mentioned above. The Union shall not be liable for any back pay accruing 5 days after such notice 26 The Company may also terminate its liability for further accrual of back pay to Walker by notifying him that available work will be of- fered to him without discrimination and offering him employment on such basis, as provided above. The Trial Examiner recommended that the Respondent Union be ordered to cease and desist from causing or attempting to cause the Respondent Company and any other employer to discriminate against any employee or prospective employee in violation of Section 8 (a) (3) of the Act, on the basis of his finding that the Respondent Union had caused and attempted to cause Respondent Company and other companies engaged in the business of general stevedoring in the Philadelphia area to discriminate against longshoremen not in good standing in or approved by Respondent Union. The Unions contend that any order against the Respondent Union should be limited to the Respondent Company alone. In view of the evidence which demonstrates that the Respondent Union has caused other stevedoring companies in the area to discriminate against longshoremen, it is our opinion that to limit the order to the Respondent Employer would be to disregard not only the danger of future commissions of unlawful acts to be anticipated from "the course of . . . conduct in the past," but to fail to remedy those which resemble that Which the Respondent. Union has committed.27 Accordingly, we shall adopt the recom- mended order, with the modification that it be limited to other com- panies engaged in the business of general stevedoring in the Philadel- phia area. Finally, we shall order the Company to make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of back pay due and to determine the right to employment. 21 Walker testified that lie quit going down to the water front in July 1949, but shaped between May 10 and July 1949 We leave the question of the number of times when, absent discrimination, he would have been employed to determination on compliance The Trial Examiner misstated that it was Richardson, rather than Walker, who left the water front, 15 Of course, the Respondents are entitled to deduct, according to the usual formula, those payments which the Respondent Company has made to Richardson for work awaided him without discrimination, since June 7, 1949. 20 Pinkerton's National Detective Agency, Inc, supra. 27 See United Mine Workers of America, et at. (West Kentucky Coal Company ), 92 NLRB 916, and cases cited therein. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 : 1. The Respondent, Jarka Corporation of Philadelphia, Philadel- phia, Pennsylvania, its officers, agents, successors, and assigns shall : 1. Cease and desist from: (a) Encouraging membership in Local 1291, International Long- slioremen's Association, or any other labor organization of its em- ployees by discriminating in regard to the hire or tenure of employment or any term or condition of employment of any of its employees or prospective employees except to the extent authorized by Section 8 (a) (3) of the Act. (b) In any like on related manner interfering with, restraining, or coercing its employees in the exercise of the right to refrain from engaging in concerted activities as guaranteed them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon application, offer employment in available jobs which they are qualified to perform to William J. Walker and William D. Richardson, without discrimination in regard to their hire or tenure of employment or any term or condition of employment because of their membership or nonmembership in the Respondent, Local 1291, International Longshoremen's Association, or in any other labor or- ganization, and without prejudice to their seniority or other rights and privileges. (b) Notify William J. Walker and William D. Richardson in writ- ing that it has no objection to employing them, that they will not be discriminated against, and that at "shape-ups" there will be no dis- crimination in regard to hire or tenure of employment or any term or condition of employment to encourage membership in Respondent Union or in any other labor organization. (c) Require that its hiring foremen and employees having authority to hire or discharge, hire longshoremen for "work gangs" without regard to their union membership, affiliation, or activity. (d) Upon request, make available to the Board or its agents, for examination and copying, all pertinent records necessary to analyze the amounts of back pay due and the right of employment under the terms of this Order. JARKA CORPORATION OF PHILADELPHIA 329 (e) Post at its places of business in Philadelphia, Pennsylvania, and all places where notices are customarily posted, copies of the notice attached hereto marked Appendix A.25 Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by Respondent Company's representative, be posted by it immediately upon receipt thereof and be maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered, defaced, or covered by other material. (f) Notify the Regional Director for the Fourth Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. H. The Respondent, Local 1291, International Longshoremen's As- sociation, of Philadelphia, Pennsylvania, and vicinity, and its officers, representatives, agents, successors, and assigns shall: 1. Cease and desist from : (a) Causing or attempting to cause the Respondent, Jarka Corpora- tion of Philadelphia, its officers, agents, successors, and assigns, and other companies engaged in the business of general stevedoring in the Philadelphia area, to discriminate against employees or applicants for employment, in violation of Section 8 (a) (3) of the Act. (b) Restraining or coercing employees or prospective employees of Jarka Corporation of Philadelphia in the exercise of their right to refrain from any or all concerted activities listed in Section 7 of the Act, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify Jarka Corporation of Philadelphia in writing, and furnish copies to William J. Walker and William D. Richardson, that it has no objection to their employment and that of other persons, without regard to their membership or nonmembership in the Re- spondent Union or in any other labor organization, and without prejudice to their seniority or other rights and privileges, except to. the extent authorized by Section 8 (a) (3) of the Act. (b) Post immediately in conspicuous places in its business office and wherever notices to its members are customarily posted, copies of the notice attached hereto marked Appendix B.2° Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by an official representative of Respondent 211n the event this Order is enforced by decree of a United States Court of Appeals, there shall be nisei ted before the words "A Decision and Order" the words "A Decree of the United States Court of Appeals Enforcing ° See sup) a, footnote 27. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, be posted by it immediately upon receipt, thereof and be main- tained for a period of at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respond- ent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for the Fourth Region signed copies of the notice attached hereto as Appendix B for posting, the Respondent Company willing, in places where notices to employees of Jarka Corporation of Philadelphia are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being signed as provided in the preceding para- graph of this Order, be forthwith returned to the aforesaid Regional Director for posting. (d) Notify the Regional Director for the Fourth Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. III. The Respondents, Jarka Corporation of Philadelphia, its of- ficers, agents, successors, and assigns and Local 1291, International Longshoremen's Association, its officers, representatives, agents, suc- cessors, and assigns shall, jointly and severally, make whole William D. Richardson and William J. Walker for any loss of pay they may have suffered by reason of the discrimination against them, in the manner prescribed in the remedy section of the Board's Decision. MEMBER MURDOCK took no part in the consideration of the above Decision and Order. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT encourage membership in LOCAL 1291, INTERNA- TIONAL LONGSHOREMEN'S ASSOCIATION, or any other labor organi- zation of our employees by discriminating in regard to the hire or tenure of employment or any term or condition of employment of any of our employees or prospective employees except to the extent authorized by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees or prospective employees in the exercise of the right to refrain from engaging in concerted activi- ties as guaranteed them by Section 7 of the Act except to the JARKA CORPORATION OF PHILADELPHIA 331 extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL offer , upon application , employment in available jobs which they are qualified to perform to WILLIAM J. WALKER and WILLIAM D. RICHARDSON , without discrimination in regard to their hire or tenure of employment or other terms or conditions of employment because of their membership or nonmembership in LOCAL 1291, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, or any other labor organization. WE WILL notify the above-named individuals in writing that, upon their application, we will offer them such employment on a nondiscriminatory basis. WE WILL make whole WILLIAM D. RICHARDSON and WILLIAM J. WALKER for any loss of pay suffered as a result of the dis- crinination against them. All our employees are free to become or remain or to refrain from becoming or remaining members in good standing of the above-named union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. JARKA CORPORATION OF PHILADELPHIA, Employer. Dated------------------- By ----------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix B NOTICE TO ALL MEMBERS OF LOCAL 1291, INTERNATIONAL LONGSIIORE- MEN) S ASSOCIATION AND TO ALL LONGSHOREMEN IN THE PORT OF PHILADELPHIA a Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT cause or attempt to cause JARKA CORPORATION or PHILADELPHIA, its officers, agents, successors, and assigns, or any other companies engaged in the business of general stevedoring in the Philadelphia area, to discriminate against any employee or prospective employee in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees or prospective em- ployees of JARKA CORPORATION OF PHILADELPFIIA or any other em- ployer in the exercise of their right to refrain from engaging in 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerted activities as guaranteed them by Section 7 of the Act except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8 (a) (3) of the Act. WE WILL make WILLIAM D. RICIiARDSON and WILLIAM J. WALKER whole for any loss of pay suffered because of the dis- crimination against them. We have no objection to the employment of the above-named individuals, without discrimination because of their membership or nonmembership in the union, and without prejudice to their seniority or other rights and privileges, or to the eniploynient of other individuals on a nondiscriminatory basis. We have given Jarka Corporation of Philadelphia notice to this effect. LOCAL 1291, INTERNATIONAL Lo=A GSH0RENIE-N *s ASSOCIATION. Labor O'rganizationn. Dated ------------------------ By ----------------------------- (Representative) ('t'itle) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order Mr F Don Wtisov. for the General Council. Mr Robert G. Kelly, of Philadelphia, Pa, for Respondent Company Mr Louis H. W17derinan-, of Philadelphia, Pa. for Respondent Union. STATEMENT OF THE CASE Upon charges duly filed, the General Counsel of the National Labor Relations Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsyl- vania), duly issued complaints dated July 7, 1950, against Jarka Corporation of Philadelphia, hereinafter called the Respondent Company, and against Local 1291, International Longshoremen's Association, hereinafter called Respondent Union or the Union (Respondents are collectively referred to as Respondents), alleging that Respondent Conipany had engaged in unfair labor practices within the meaning of Section S (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat 136, hereinafter called the Act, and alleging that Respondent Union had engaged in unfair labor prac- tice^ within the meaning of Section S (b) (1) and (2) and Section 2 (6) and (7) of the Act. By order dated July 7, 1950, said Regional Director duly consolidated these cases With respect to unfair labor practices, the complaint against Respondent Company alleges in substance that Respondent Company: (1) On or about May 12, 1949, refused employment to William J. Walker because "he was not and is not a paid up member of the union." (2) "For the purpose of en- couraging applicants for employment to become and remain members of the union" (a) between February 1, 1949, and July 1, 1949, refused to hire ap- plicants for employment who were not members of the Union "unless they paid for and received from the union temporary work cards and had agreed that JARKA CORPORATION OF PHILADELPHIA 333 members of the union were to be hired before such applicants for employment"; (b) since .Janmuy 1, 1949 , refused to lure applicants for employment who were not members of the Union unle., no members of the Union were applying for employment . and ( c) since Jantmiy 1, 1949. has given preference in hiring and tenure of employment to members of I lie Union The complaint against Respondent Union alleges in substance that Respond- ent Union for the purpose of encouraging membership theiem ( 1) Caused Respondent Company to discnnuuate against William .1 Walker in the manner indicated above and to discriminate against William 1) Richardson by refusing him employment on of about little 7. 1919 ; (2) between February 1, 1949, and July 1, 1949 , caused or attempted to cause Respondent Company and other companies engaged in the business of general stevedoring in the Philadelphia area to fail and refuse to hire applicants for employment who were not members of Respondent Union unless they paid for and received item the Respondent Union tempoiar y work cards and had agreed that members of Respondent Union were to be hired before such applicants for employment , ( 3) since January 1 , 1949, caused or attempted to cause Respondent Company and other companies engaged in the business of general stevedoring in the Philadelphia area to fail and refuse to hire applicants for emplo> went who were not mem- bers of Respondent Union unless no members of Respondent Union were apply- ing for employment . The complaint against Respondent Union as amended at the hearing , over objections , further alleges that Respondent Union (a) caused or attempted to cause Respondent Company to discriminate against William D Richardson with i espect to whom membership in Respondent Union had been denied on a ground other Haan his failure to tender periodic clues and Initiation fees. and ( b) since January 1, 1949, caused or attempted to cause Respondent Conipany and other companies engaged in the business of steve- doring un the Philadelphia :nee to fail and iefuse to hire applicants for em- ployment because they wee e not meuibei s of Respondent Union a nd with respect to whom membership in Respondent Union had been denied or terminated on ^ a ground other than their failure to tender periodic clues and initiation fees. Respondents filed separate answers denying the commission of unfair labor practices. Pau scant to notice. I hearing was held in Philadelphia , Pennsylvania, on July 24, 2s., and 26. 1950, before the undersigned Trial Ex:unnner The General Counsel' and each of the Respondents were represented by counsel; all parties participated in the hearing and were afforded full opportunity to be heard, to exam ire a nd cross-examine witnesses , and to introduce evidence bearing on the issues Respondents objected to allegations in the complaints based upon matters stated it the amended charges but not in the original charges contending that these allegations were barred by the 6-month provision of ,Section 10 ( h) of the Act On the, authority of Ccfhej Jilin bca Coinpeiiij, S6 NLRB 1:i7 , these objections were overruled At the conclusion of the General Counsel 's case un-chief , counsel for each of the Respondents moved to dismiss the complaints because of insufficient evidence These motions were denied At the conclusion of the bearing the parties waived oral argument and elected to submit beefs A hi ief has been received fi one Respondent Union and has been considered Counsel foe Respondent Company has advised that a brief on "behalf of Respondent Company will not be filed. Fii nn the entire iecord and front his obseiv ,ition of witnesses the undersigned makes the lollowng - a ReferrnceS to the Geieiel Counsel ate to his repre1ontatne at the liearmg 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS of PACT" I THE BUSINESS OF RESPONDENT CO',JPANY Jarka Corporation_ of Philadelphia, it l'ennsvlvania corporation having its principal office and place of business in Philadelphia, Pennsylvania, is engaged in the operation of steamship terniinals and in the business of general stevedoring in the port of Philadelphia which includes Philadelphia, Pennsylvania, Camden, New Jersey, and Wilmington, Delaware In the course and conduct of its opera- tions Respondent Company loads, unloads, and handles a substantial amount (m excess of $5,000,000 worth) of- cargo in the course of transportation between various States of the United States, between the United States and noncontiguous territories or possessions, and between the United States and foreign countries. Respondent Company's annual pad roll approximates $1,000,000 The undersigned finds that Resp:nrdent Company in the course and conduct of its business is engaged in conimeice within the meaning of the Act II TILE LABOR ORGANIZATION INVOLVED Local 1291. International Longshoremen's Association is a labor of ganization within the meaning of Section 2 (5) of the Act III, THE UNFAIR LABOR PRACTICES Bargaiuiiq History On or about Api it 29, 1940, a collective bargaining agreement, herein called the 1945 agreement, was executed by and between Deep Water Steamship Lines and Contracting Stevedores of the Port of Philadelphia and Vicinity' and the International Longshoremen's Association and its affiliated Locals' This agree- ment provides inter alma: Members of the party of the second part [the Union] shall have the preference of all work pertaining to the loading and unloading of all cargoes and bunkering of ships when such work is under the control of the party of the first part [participating stevedoring companies]. When the party of the second part cannot furnish a sufficient number of men to perform the work in a satisfactory mariner, then the party of the first part may employ such other men as are available, . . . This agreement was made effective from October 1, 1945, to September 30, 1947, with a proviso that "either party Wray give written notice on or before September 1, 1946, requesting reconsideration of the wage rates only." On October 17, 1949, the parties to the 1945 agreement executed a supplement revising the wage scale agreed upon and continuing without change the other working conditions and terms of the 1945 agreement. In 1947 The Philadelphia Marine Trade Association, also called PMTA, a non- profit corporation representing stevedoring companies in the Philadelphia area, including Respondent Company, in collective bargaining, was formed and be- 2 In making the findings of fact in this and other sections of this Report I have con- sidered and weighed the entire evidence It would unnecessarily burden this Report to describe, in minute detail, all evidence or disputed points Such testimony or other evidence as is in conflict with the findings herein is not credited 3 The collective bargaining agent foi stevedoring companies, including Respondent Companv 4 Including Local 1291. JARKA CORPORATION OF PHILADELPHIA 335 came the successor to the Deep Water Steamship Lines and Contracting Steve- dores of the Port of Philadelphia and Vicinity On August 21, 1947, PMTA on behalf of its members, including Respondent Company, and International Longshoremen's Association, Locals 1291, 1290, and 1694, executed an agreement establishing the period to be used in computing vaca- tion pay, providing for an increase in the hourly wage sates and a 2-hour guaran- tee of wages under certain conditions, and extending all other terms and condi- tions of the 1945 agreement is supplemented until midnight, August 20, 1948. In November 1948 PMTA and Respondent Union reached an agreement chang- ing some of the terms and conditions of the 1945 agreement and as changed making it effective October 1, 1948, to September 30, 1949 Neither the changes nor the final terms of the agreement were reduced to writing and signed by the parties. Nevei theless, the details of the understanding of the parties are set forth in a letter dated June 16, 1949, from PMTA to its members and to Paul Baker, vice president of Atlantic Coast District of the International Longshore- men's Association (top ranking official of the ILA in the port of Philadelphia). It appears from this letter and from the testimony of Baker that the parties, agreed inter obis to replace the preferential hiring clause of the 1945 agreement with "a union security clause conforming to the provisions of the Labor Manage- ment Relations Act of 1947" ` and the undersigned so finds. In November 1949 the pai ties assembled and endeavored to negotiate another agreement. Shortly thereafter counsel for PMTA drafted a proposed contract incorporating into one document all proposed terms and conditions of employ- ment, and the parties have met and conferred concerning this instrument and the terms thereof but have not as of this date reached a complete understanding and therefore the parties are not now operating pursuant to an existing, signed, written agreement. Nevertheless, the parties have reached an agreement con- cerning some of the terms and conditions proposed in the draft of the PMTA and have made these agreed-upon conditions of employ ment effective and use the proposed draft as a basis for adjustments of disputes and differences that oc- casionally arise. The union-security clause of this proposed agreement reads as follows : 1 Union Security. As to any and all work covered hereunder, finally de- termined by duly constituted public authority not to be subject to any statute forbidding a preferential hiring provision, the employers agree to. give a preference to longshoremen who are members of the Union in good standing. As to all other work the employers agree to institute and maintain a union shop as shall comply with Section 8 (a) (3) of the National Labor Relations Act or any amendment thereto. Joseph Kane, a member of the union negotiating committee, testified that the union-security clause of the proposed contract was not discussed at the meetings with the employer representatives and that the clause as drafted is agreeable to the union committee. Nevertheless, it appears from statements by counsel for Respondents that they are not in agreement as to the phraseology of this clause but are in agreement as to its substance In summary, and so far as union security is concerned, it appears that prior to the enactment of the Labor Management Relations Act of 1947, Respondents concluded an agreement which promided for preferential hiring of members of Respondent Union; that after enactment date but prior to the effective date of the Act Respondents agreed to an extension of preferential hiring conditions for a 6 The record does not indicate that an election pursuant to Section 9 (e) of the Act has been held or drat the parties have agreed upon the text of a union -security clause 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period of not more than 1 year (until midnight, August 20,194S) ; that in Novem- ber 1948 Respondents replaced the agreement concerning preferential hiring conditions with an agreement providing for "a union-security clause conforming to the provisions of the Labor Management Act of 1947" and that since the expira- tion of the November 1948 agreement on September 30, 1949. Respondents have been negotiating but have not reached a complete understanding concerning terms and conditions of employment, but are nevertheless operating and functioning pursuant to a tentative agreement that with respect to all work under the juris- diction of the Act "the employers agree to institute and maintain a union shop as shall comply with Section S (a) (3) of the -National Labor Relations Act or any amendment thereto." It appears to the undersigned that any contention that the afore-mentioned agreements and/or arrangements between Respondents concerning union security are poet sc violative of the Act, must be, and it hei eby is, ie,lected flti ilig System Respondent Union maintains a list of stevedoring companies in the port of Philadelphia and daily contacts or is contacted by these companies and given the anticipated number of longshoremen that will be required the following day and the location or locations where needed Respondent Union then prepaies mimeo- graphed papers showing this information (schedule of woik possibilities) and posts these mimeographed papers at the union hall ° and it tour different points on the water front where they aie available for public inspection On the day that the svoik is to be' pci loimed the hiring foienian for each com- pany involved secures from the officials of those companies a number of work tickets The number of work tickets obtained varies according to the size of the work gang anticipated. Usually the work gang consists of either 16 or 21 long- shot ennen. After obtaining the work tickets the hiring foreman goes to a specific location (a different location for each company) along the water front where longshoremen desiring work assemble, called a "shape-up." The hiring foreman selects from the men assembled a sufficient number of longshoienien to constitute the work gang desired and gives to each man selected a woik ticket indicating that he has been hued Respondent Union issues each month to umembei s in good standine a union but- ton, called a woiking button, and union nienibels are required (under the bylaws of Respondent Union) to wear this button in such fashion as to be discerned at a glance, and to wear it "on the right side of the cap when convenient to do so " During the period from January 1949 to June 1949 Respondent Union. upon pay- ment of a fee, issued to nonmembers a card petmittiug the bearer to vAork as a temporary longshoreman during a specific period (the mouth for which the fee was paid) with the understanding that regular members of the Union in good standing, "are to be hired first " The actual composition of the work gang hued at each shape-up is left (by the stevedoring companies) to the discretion and selection of the hiring foreman who endeavors. by hiring repeatedly the seine individuals. to establish a i egular gang or a nucleus of a regular gang When a sufficient number of formei mem- hers of the gang do not appear at the shape-up or a ciew larger than the regular nucleus is desired, the foreman selects such additional longshoremen as may be needed from those present at the shape-up in the following manner : From among union members present ; if there are not present a sufficient number of 6 Union hall open to union and nonunion Iongrhorenien JARKA CORPORATION OF PHILADELPHIA 337 union members to fill the ,desired quota the foreman ( during the periods permit cards are in use ) selects next from the permit card holders present and if, after selection in this manner , there are still available job assignments the foreman selects from the remaining assemblage , consisting of nonunion, noncard holders. Where a longshoreman , who through repeated selection by the foreman has become a member of the nucleus of that foreman 's gang, does not appear at the shape-up the foreman endeavors to fill his position in the manner indicated above, i. e., in the following order: (1) From union members; (2) from permit card holders; and ( 3) from nonunion , nonpermit card holders. In the latter instance (where a replacement is hired for a regular member of the gang) a union member replacement is usually rehired at each shape -up thereafter until the particular cargo job is completed, even though the regular member of that gang may appear at subsequent shape-ups but nonunion longshoremen are usually replaced at the next shape-up at which the regular member of the gang appears seeking work. The system of hiring outlined above during the period involved herein was employed by hiring foremen of various stevedoring companies , including Respondent Company. In summary , a longshoreman not a member of the Union or cleared by the Union can obtain employment as a casual by presenting himself at the shape-up and awaiting opportunity to be hired after available assignments have been offered to union members and to union-cleared longshoremen.' The record reveals that most though not all hiring foremen in the port of Philadelphia are members of Respondent Union and that practically all of the regular hiring foremen ( as distinct from extra hiring foremen hired from time to time to handle unusual quantities of work ) of Respondent Company are members thereof. Under the bylaws of Respondent Union, delegates are elected officers of Re- spondent Union whose duties are defined as follows : The delegates shall act as organizer and business agent for the Local. He shall visit all places where members of the Local are employed and see as nearly as possible that the rules and regulations governing working condi- tions are carried out . He shall see that all members employed are in good 7 At the hearing the General Counsel made an offer of proof to the effect that during April 1949 temporary card holders were told by officials of Respondent Union that they must shape up at a special location rather than at customary shape -up points and that they could not be hired until after all union members desiring work had been exhausted, that these temporary card holders did shape up at this special location and that hiring foremen , after exhausting the union members available at the customary shape'up - loca- tions , went to this special location and there completed their desired complement of long- shoremen The undersigned indicated , however , that he would receive evidence bearing upon restraint or coercion by officials of Respondent Union, and evidence that hiring foremen or other company officials participated in such arrangements other than by merely going to the special shape -up location to complete their work gangs . No evidence of restraint or coercion other than that inferred in the offer of proof was introduced and the only evidence on the latter point cohsists of testimony that William D. Richardson, on one occasion during 1\larch 1949 , appeared at a shape-up of the Lavina Shipping Com- pany ( not a respondent herein ) and was asked by the hiring foreman for that company what he was doing down there, and told that he was supposed to he at the special shape-up location for card men . Richardson testified that he thought the toieman was kidding, that he (Richardson ) was not a card holder at that time and that he ( Richardson) "had been working there quite a bit." The record reveals that not all hiring foremen are members of Respondent Union and there is no evidence indicating whether this foreman was or was not a member thereof. 953841-52-vol 94-23 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing and that no outsiders are permitted to work as long as union men are available! Respondent Union, in situations where sufficient work is not available for all persons desiring work, seeks to obtain preference in employment for its members and, accordingly, requires permit holders to, agree that union members will have first choice of available work, has a rule establishing a $25 fine against member- hiring foremen for offering work to nonunion longshoremen when union members are available,9 and through its delegates at shape-ups seeks to prevail upon hiring foremen to offer work to union members and union -cleared longshoremen before offering it to nonunion longshoremen . The evidence establishes that delegates at the shape-ups, in addition to requesting hiring foremen to give preference to union members have, on various occasions, called the attention of the hiring foreman to the possibility of a fine should he violate the rules respecting prefer- ence for members of Respondent Union 10 The General Counsel contends , in view of the supervisory functions of the hiring foremen , their membership in Respondent Union, their cognizance of the union rule regarding preference of employment and possible fine for violation thereof, that hiring foremen engaging in the afore-mentioned conduct act as agent for and bind their respective stevedoring companies , including Respondent Com- pany, and act as agent for and bind Respondent Union, and that therefore Re- spondent Company (through hiring foremen) discriminated against nonunion applicants for work and Respondent Union caused or attempted to cause Re- spondent Company and other stevedoring companies in the Philadelphia area to discriminate against nonunion applicants for work in violation of Section 8 (a) (3) of the Act. Respondent Company contends that hiring foremen engag- ing in the afore-mentioned conduct do so without authority from and to the detriment of Respondent Company and act in the interest of Respondent Union and that Respondent Company is not responsible for such conduct . Respondent Union contends it is not responsible under the Act for the afore-mentioned con- duct of hiring foremen "that these foremen are the agents of the employer and have no relationship other than membership , to the Union " There is no question but that hiring foremen are supervisory employees of the concerns for whom they work and the undersigned concludes that when they, in the course of their em- ployment , engage in conduct proscribed by the Act , including the conduct outlined above, their conduct may be attributed to their employers, including Respondent Company. (See Somerset Classics, Inc., 90 NLRB 1676.) While the record reveals generally that hiring foremen pursue the hiring policy outlined above and that generally hiring foremen are members of Re- spondent Union, it does not establish detailed instances , within the period covered by the complaint herein, where named union member-hiring foremen for stevedoring companies, other than Respondent Company, actually gave pref- erence of employment to union members. On the other hand the record does 8 The contention that this section of the bylaws has not been enforced and that it was suspended or disregarded after the passage of the Labor Management Relations Act of 1947 is rejected . The record establishes cognizance by union officials that preferential hiring is unlawful under the Act but does not establish disregard of this bylaw by union delegates To the contrary it establishes that this bylaw has never been formally sus- pended , modified , or rescinded , and, as noted in this Report , that frequently delegates attempt to see that no outsiders are permitted to work as long as union men are available ° No fines pursuant to this rule have been imposed although union member-hiring fore- men have on occasion hired nonunion nien when union workers wanted the job 10 Thus, Delegate Varlick told the foremen if they didn 't want to pay a fine , hire only button men (union members) ; "hire union men if you don't want a fine , if you don't want to pay no fine , you'd better take these book men [union members]." JARKA CORPORATION OF PHILADELPHIA 339 establish and the undersigned finds 'that union delegates , during the period involved herein, sought to obtain preferential employment for union members by threatening hiring foremen , including union member-hiring foremen" with imposition of a fine unless they gave such preference , and this is conduct pro- scribed by the Act for which Respondent Union is responsible .12 ( See Denver Building and Construction Trades Council , et at. ( Henry Shore ) 90 NLRB 1768; International Longshoremen's and Warehousemen's Union, Local No. 16 , C. I. 0., (Juneau Spruce Corporation ), 90 NLRB 1753, and Newspaper and Mail Deliv- erer's Union of New York & Vicinity, et at., 93 NLRB 237. William D. Richardson On April 29, 1949, William D. Richardson (not a member of Respondent Union ), while working as a longshoreman in a work gang under Hiring Foreman Ben Gibbs ( a hiring foreman for Respondent Company ), received a mashed hand. About 3 or 4 weeks later and thereafter Richardson, still nursing an injured hand, obtained work as an extra hand ( making the work gang 22 instead of 21 long- shoremen ) in a work gang under Gibbs and was given light work since he could use only one hand. On June 7, 1949, Gibbs, for the first time since Richardson's injury, handed him (Richardson ) a work ticket indicating he was to work that day as a member of the work gang of 21 rather than as an extra hand. Shortly thereafter and before the complete selection by Gibbs of the work gang for that day, Union Delegate Samuel Kavalauskas stated to Gibbs, "You know that is not a button man," and when Gibbs replied , "I know he is not ; I have been carrying him with me ever since he got hurt; he got hurt with me." Kava- lauskas said, "You can't carry him this morning There is a book man [union member] here. " 13 Thereupon Gibbs retracted the work ticket from Richardson and gave it to a member of Respondent Union. About June 9, 1949, Richardson appeared at a shape-up where Gibbs was hiring and was told by Gibbs that he (Gibbs ) couldn't afford "to pay out no fine for you. I want to do you a favor, but I can't pay out a fine for nobody." 14 Richardson was not a regular or recurring member of the work gang under Gibbs and did not thereafter appear at a shape -up where Gibbs was hiring. Richardson did, however , appear at other shape -ups and it was stipulated that he worked as a longshoreman for Respondent Company on June 9, 20, 21, 22, and 23, 1949. However the work on June 9 was unauthorized work which Rich- ardson undertook without a work ticket and without sanction by officials of Respondent Company. The work on the other dates was not the same type of work that Richardson had done prior thereto (he worked as a member of a gang unloading railroad cars rather than as a member of a gang handling cargo aboard ships) and was at a lower rate of pay per hour. Richardson testified that he left the water front during September, October, November, and December, 1949, that since January 1950 lie has frequently worked for various stevedoring companies, including Respondent Company, and that no further efforts have been made to stop him from working. 11The finding that union member -hieing foremen were threatened is based upon the composite and correlated evidence rather than upon isolated specific testimony. 12 The undersigned accordingly does not consider it necessary to determine the issue as to whether union member -hiring foremen engaging in discriminatory conduct act for and on behalf of Respondent Union See International Longshoremen's and Warehouse- men's Union, et al , 90 NLRB 1021, footnote 7 1s Kavalauskas' testimony to the contrary is not credited 1a Gibbs' testimony to the contrary is not credited 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although no specific threats were made to Gibbs by Kavalauskas on June 7, it appears to the undersigned that this colloquy, when viewed in the light of the entire record, supports a finding that Respondent Union thereby caused or at- tempted to cause Respondent Company to discriminate against Richardson, and the undersigned so finds. Absent this colloquy it is unlikely that Gibbs would have discriminated against Richardson. When Kavalauskas pursuing his normal duties as a union delegate told Gibbs "you can't carry him [Richardson] this morning. There is a book man [union member] here" he necessarily contemplated and anticipated that union member-hiring foreman Gibbs would give effect to Respondent Union's rule regarding preference of employment to union members, precisely as Gibbs did in this instance. The undersigned further finds that by the afore-mentioned conduct of Gibbs, Respondent Company discriminated against Richardson and thereby violated Section 8 (a) (1) and (3) of the Act. Both Respondents contend that if the evidence establishes, as it does, that the membership rolls of Respondent Union are restricted and Respondent Union will not admit Richardson to membership, they cannot be regarded as having encouraged membership therein and that the Act forbids discrimination in order to encourage union membership. The discrimination forbidden is discrimination "to encourage or discourage membership in any labor organization." Thus, any discrimination, whether based on membership, nonmembership, or any other ground, is prohibited if it has the effect of encouraging or discouraging member- ship in a labor organization. That Richardson was discriminated against because of his nonmembership in Respondent Union is clear. The normal effect of the discrimination against Richardson was to encourage nonmembers to join Respondent Union as a strong organization whose favor and help is to be sought and whose opposition is to be avoided. The fact that Richardson did not and could not become a member of Respondent Union does not detract from Respondent Company's effort to en- courage membership therein. Respondents' conduct was calculated and tended to encourage membership in the Union and is no less violative of the Act because such conduct may not have achieved its purpose. If, as has been found, the discrimination encouraged membership in Respondent Union and if, as has been found, Respondent Union caused Respondent Company to discriminate against Richardson, Respondent Union, under the express language of the statute, vio- lated Section 8 (b) (2) of the Act, and the undersigned so finds. It is asserted by the General Counsel that by reason of its status as a "closed union" the Union also violated the following emphasized portion of Section 8 (b) (2) : (b) It shall be an unfair labor practice for a labor organization or its agents- (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. [Emphasis supplied.] Since violations of Section 8 (a) (3) on the part of the Respondent Company and of 8 (b) (2) on the part of the Union have already been found, it is unnecessary further to construe these portions of the statute or to determine whether the facts establish violations of them. JARKA CORPORATION OF PHILADELPHIA William J. Walker 341 William J. Walker, a longshoreman for 52 years and a member of the Inter- national Longshoremen's Association since 1917, stopped paying dues to Re- spondent Union in 1947. Although the constitution of the International Long- shoremen's Association provides that "any member six months or more in arrears in the payment of dues or assessments shall be suspended and dropped from the Local without a hearing and without further notice," Respondent Union (Local 1291) pursued a policy of notifying its members when they are dropped from its membership rolls. Walker testified he was never notified that he was expelled or suspended and James T. Moke, assistant financial secretary of Respondent Union, testified he could not say whether Walker "was on the 1949 rolls [of Respondent Union] or not." Prior to 1941 Walker, by being hired repeatedly, became a regular member of the work gang under Ed Goldman, a hiring foreman for Respondent Company. From 1941 to 1945 Walker was employed by various stevedoring companies, in- cluding Respondent Company, as a hiring foreman. Since 1945 Walker has worked as a longshoreman but has not been employed repeatedly as a member of any particular work gang. He did however work for Respondent Company in 1949 during the payroll weeks ending January 9, 16, 23, 30; February 6, 13, 20, 27; March 13, 20, 27; April 3, 10, 17, 24; May 1 and 15. In May 1949 Respondent Company needed an additional work gang (a minimum number of work gangs are normally assembled by Respondent Company and as occasion requires additional gangs are assembled) and James Craft, a member of Respondent Union, was employed as the hiring foreman for this temporary work gang. On May 10, 1949, Walker was hired by Craft and worked with this gang. At the end of the day Craft announced "all hands in the morning," meaning those desiring reemployment be present at the shape-up the following day. The following day (May 11, 1949) Walker appeared at the shape-up location and prior to the distribution of work tickets conferred with Craft about certain "rigging" that was needed aboard the ship where the work was to be performed. Craft told Walker to get the required "rigging." While Walker was getting the "rigging" Union Delegate Henry Varlick talked to Craft and at the conclusion of their talk, Craft approached Walker and said, "I am sorry to tell you, but Henry tells me don't carry you this morning." 15 Walker said to Craft, "That is all right. I will see Henry." Walker then asked Varlick why he (Walker) could not go to work and Varlick said, "You are not up in your dues and you have to go to the hall and see Ford, financial secretary." 16 Walker then went to the union hall and conferred with officials of Respondent Union. He was told that he could not work unless he paid up his dues. The following day (May 12, 1949) Walker appeared at the shape-up location and was told by Craft, "I got another man in your place now." 1' Walker thereafter appeared at various shape-ups but was not hired and ceased appearing at shape-ups after-July 1949. Any contention that, because of the failure to appear at shape-ups after July 1949, any loss of wages thereafter was wilfully incurred is not sustained. Walker was not required to speculate on whether he would receive employment at shape-ups thereafter. 15 Craft did not testify in these proceedings . Varlick testified he told Craft the long- shoremen in this gang considered Walker incompetent and objected to working with him. From his observation of the witness and after analyzing Varlick's testimony in the light of the entire record, the undersigned does not credit this testimony by Varlick. 10 Varlick's testimony to the contrary is not credited. 1z The record does not establish whether the other man was a member of Respondent Union. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the entire record the undersigned finds that Walker was discriminated against by Respondent Company because he was not a paid-up member of Respondent Union. Not every discharge brought about by a union subjects the union to liability under Section 8 (b) (2) of the Act and it must be established that the union, within the meaning of that section, caused or attempted to cause such discrimina- tion. Nevertheless, the statute does not require direct, positive evidence of such conduct but merely that such conduct be established by a preponderance of the evidence which includes all lawful inferences that may be drawn. The under- signed believes and finds that a preponderance of the evidence establishes that Respondent Union caused Respondent Company to discriminate against Walker in violation of Section 8 (b) (2) of the Act. It is extremely unlikely that Craft would have discriminated against Walker unless Varlick had taken some action, veibal or otherwise, which caused him (Craft) to engage in this conduct. That such conduct was engaged in is evi- denced by the facts themselves and the undersigned finds from the res gestae that Varlick's action caused Craft to discriminate against Walker because he was, not a paid-up member in Respondent Union. (See United States v. United Mine Workers of America, 330 U. S. 258 and United States V. International Union, United Aline Workers of America, 77 F. Supp. 563, affirmed 177 F. 2d 29, cert. denied 338 U. S. 871.) When Respondent Union (through its delegate, Varlick), pursuing its normal procedure, sought to cause the discrimination against Walker, it necessarily contemplated and anticipated that its member (Hiring Foreman Craft) would give effect to its rules requiring preference of employment to union members, precisely as he did in this instance. The normal effect of the discrimination against Walker was to encourage membership in good standing in Respondent Union and obedience of all its members of such rules as Respondent Union may prescribe's and thereby strengthen Respondent Union both in its control of its members for their general mutual advantage and in its dealings with their employers, as their representa- tive. It thus encouraged nonmembers to seek membership in Respondent Union as a strong organization whose favor and help was to be sought and whose opposition was to be avoided. In its effect upon members alone it must be regarded as encouraging membership in Respondent Union. The discrimination in the present case also had the normal effect of encouraging Walker and other members to retain their membership in good standing in Respondent Union either through fear of the consequences of dropping out of membership, or through hope of advantage in staying in. - Upon the foregoing considerations the undersigned concludes that in preventing Walker's hire by Respondent Company on-May 11, 1949, because he was not a paid-up member in Respondent Union, the Respondent Union caused Respondent Company to discriminate in violation of the Act and Walker to lose employment. Ultimate Findings and Conclusions In view of the foregoing and upon a consideration of the entire record, the undersigned finds and concludes : 18 The proviso of Section 8 (b) (1) (A) of the Net retaining "the right of a labor or- ganization to prescribe-its own rules with respect to the acquisition or retention of membership therein" permits a union to enforce whatever rules it may prescribe and thus, incidentally, to require the participation of its members in particular concerted activities only to the extent that penalties for infractions of the rules may affect "acquisi- tion or retention of membership." It does not, however, reserve to a union the right to enforce its rules by causing an employer to refuse to hire or to discharge an offending member as the Respondent Union did in this present case. JARKA CORPORATION OF PHILADELPHIA 343 1. Local 1291, International Longshoremen's Association, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. That Respondent Company violated Section 8 (a) (1) and (3) of the Act by pursuing a hiring system or procedure whereby longshoremen not in good stand- ing in and/or approved by a labor organization were discriminated against. 3. That Respondent Company violated Section 8 (a) (1) and (3) of the Act by discriminating in regard to the hire and tenure of employment of William D. Richardson and William J. Walker, thereby encouraging membership in a labor organization. 4. That Respondent Union violated Section 8 (b) (2) of the Act by causing Respondent Company to discriminate against William D. Richardson and William J. Walker, and by attempting to cause Respondent Company and other companies engaged in the business of general stevedoring in the Philadelphia area to discrim- inate against longshoremen not in good standing in and/or approved by Respond- ent Union. 5. That Respondent Union restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (b) (1) (A) of the Act by causing Respondent Company discriminatorily to discharge William D. Richardson and William J. Walker, and by attempting to cause Respondent Company and other companies engaged in the business of general stevedoring in the Philadelphia area to discriminate against longshoremen not in good standing in and/or approved by Respondent Union ( see Clara-Val Packing Company, 87 NLRB 703). 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. IV. THE REMEDY Having found that Respondents and each of them have engaged in unfair labor practices it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent Company discriminated against nonunion longshoremen in its selection of longshoremen for available work (work gangs). It will be recommended that Respondent Company discontinue such discrimina- tion and to accomplish this objective that Respondent Company require its hiring foremen and employees having authority to hire or discharge, hire longshoremen '("work gangs") without regard to their union membership, affiliation, or activity and that Respondent Company take all reasonable steps and precautions to carry, out and make effective this requirement. It has been found that Respondent Company unlawfully discriminated against William D. Richardson and William J. Walker and that Respondent Union caused said discrimination. It also appears that Richardson since January 1950, "has frequently worked for various stevedoring companies including Re- spondent Company and that no further efforts have been made to stop him from working." Accordingly, no recommendation of reinstatement will be made with respect to him. The usual order directing reinstatement will not be recommended with respect to Walker since the evidence reveals that be was not'hired repeatedly as a member of a "regular" work gang and there is no evidence that absent the discrimination he would have become a member of a "regular" work gang. However, it will be recommended that Respondent Company notify Walker, in writing, that it has no objection to employing him and that he will not be discriminated against to encourage or discourage mem- bership and/or good standing in Respondent Union and that at "shape-ups" there will be no discrimination in regard to hire or tenure of employment,or 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any term or condition of employment to encourage membership in Respondent Union. It will be recommended that Respondent Union notify the Respondent Company in writing, and furnish a copy of the notice to Walker, that it has no objection to the employment of Walker by Respondent Company. It will be further recommended that Respondents jointly and severally make whole, according to the formula set forth below, the two above-named in- dividuals (Richardson and Walker) for any loss of pay, they may have suffered by reason of the discrimination against them. Richardson's loss of pay shall be computed from the date of the discrimina- tion against him to September 1949, the date that he left the water front. Walker's loss of pay shall be computed from the date of the discrimination against him to the date on which Respondent Company serves the afore- mentioned notice. In computing the loss of pay due Richardson and Walker, the customary formula of the Board shall be followed. See F. W. Woolworth Company, 90 NLRB 289. As it would be inequitable to Respondent Union to permit the amount of its liability to increase despite the possibility of its willingness to cease past dis- crimination, in the event Respondent Company should fail to notify Walker as recommended herein, the undersigned will provide that Respondent Union may terminate its liability for further accrual of back pay by notifying Re- spondent Company in writing that it has no objection to the employment of Walker as provided herein, and it is recommended in that event that Respondent Union shall not thereafter be liable for any back pay accruing after 5 days from the giving of such notice. Absent such notification it is recommended that Respondent Union shall remain jointly and severally liable with Respondent Company for all back pay that may accrue. In order to insure expeditious compliance with the recommended back-pay order it is likewise recommended that Respondent Company be ordered, upon reasonable request, to make all pertinent records available to the Board or its agents. [Recommended Order omitted from publication in this volume.] BOEING AIRPLANE COMPANY ( WICHITA DIVISION ) and INTERNATIONAL ASSOCIATION OF MACHINISTS , BOEING LODGE No. 834, PETITIONER. Case No. 17-RC-940. May 8, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William J. Scott, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Reynolds]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 94 NLRB No. 60.