Alaska Steamship Co.

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ALASKA STEAMSHIP COMPANY and HORACE W. UNDERWOOD AMERICAN RADIO ASSOCIATION, CIO and HORACE W. UNDERWOOD. Cases Nos. 19-CA--277, 19-CA-358, 19-CB-90, and 19-CB-135. February 11, 1952 Decision and Order On July 3, 1951, Trial Examiner A. Bruce Hunt issued his Interme- diate Report in the above-entitled proceeding, finding that the Re- spondents 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 Interme- diate Report attached hereto. The Trial Examiner further found that Respondent had not engaged in other unfair labor practices al- leged in the complaint and recommended that the complaint be dis- missed as to them.' Thereafter, the charging party and the Respond- ents filed exceptions to the Intermediate Report and supporting briefs. The Board 2 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs filed by the parties, and the entire record in the case, and hereby adopts the findings,3 conclusions, and recommen- dations of the Trial Examiner, with the modifications noted below. 1. The Trial Examiner apparently found the effective date of the discrimination against Underwood to be May 5, 1950, the date Under- wood was not offered the position of radio officer on the ship Alaska. This resulted, as found by the Trial Examiner, from Underwood's name being discriminatorily stricken from the national assignment list of the Respondent Union. We find that the act of removing Under- wood's name from the assignment list in itself constituted discrimi- nation in violation of Section 8 (a) (1) and (3) of the Act by the Respondent Employer and Section 8 (b) (1) (A) and (2) of the Act by the Respondent Union. However, we agree with the Trial Exam- iner in his finding that Underwood was also discriminated against on May 5, 1950, and in his setting that date as the date from which Underwood's right to back pay shall run. 1 As no exception has been filed to this recommendation , we shall dismiss the allegations in the complaint relating to these unfair labor practices. 2 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 [ Members Houston, Murdock , and Styles]. 3 The Intermediate Report contains two inadvertent inaccuracies. It states that `Begin- ning with April 1, 1950, soon after his latest membership in the Union , Underwood wrote a series of letters to it The correct date is April 1, 1949. At a later point the Intermediate Report states that "[The AZaskg] was laid up from October 1, 1949 , to May 2, 1950, when it returned to service for the period ending May 14, 1950." The last date should be October 14, 1950. 98 NLRB No. 12. ALASKA SBEAMSHIP COMPANY 23 2. The Alaska operated from May 5 to October 14, 1950, at which latter date it was laid up for the winter season. At that time, had Underwood been employed on the ship as radio officer„ as it,has been found he should have been, he would have been entitled, according to the rules of the Respondent Union, to "stand by" the, ship,Nretain- ing his right to the radio officer's position when it resumed operation. Or he could have relinquished his position and presumably had his name restored to the Union's assignment lists. The Trial Examiner found that Underwood would have elected to stand by the Alaska. and would therefore have had the right to return to it when the ship went back into operation in the spring of 1951. The Trial Examiner further found that through the operation of the rules of the Union, Underwood would have been automatically promoted to the position of chief radio operator on the Alaska. He therefore recommended that the Respondent Company be required to offer Underwood that position or a substantially equivalent one. In our opinion, a finding that Underwood would have attained the position of chief radio operator involves too much speculation as to a series of contingent events to be a proper finding for us to make. We will therefore order that the Respondent Company offer Underwood the position of radio officer aboard the vessel Alaska, or a substantially equivalent position. We do not intend by this modification, however, to change in any way the Trial Examiner's recommendations as to the back pay due Underwood, except to the extent of any differential between the wage rates of a radio officer and a chief radio operator. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that: 1. Alaska Steamship Company, its officers, agents, successors, and assigns, shall: a) Cease and desist from : (1) Encouraging membership in American Radio Association, CIO, or in any other labor organization of -its employees, by refusing to employ any qualified person because he is not a member of this organization or by discriminating in any manner in regard to the tenure of employment or any term or condition of employment of its employees, for this reason, except to the extent authorized by Section 8 (a) (3) of the Act. (2) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organiza- tion, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in con- 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certed activities for the purposes of collective bargaining or Other mutual aid or protection, or to refrain from any or all such activities. (b) Take the following affirmative action which the Board finds will effectuate the policies of the Act : (1) Offer to Horace W. Underwood immediate employment as ra- dio officer aboard the Alaska, or in a substantially equivalent position, with all the rights of seniority and other privileges that would have accrued from May 5, 1950, the date of the unlawful discrimination against him, in the manner provided in the Intermediate Report. (2) Upon request, make available to the Board or its agents for examination and copying all payroll and other records necessary to determine the amount of back pay due under the terms of this Order. (3) Post in conspicuous places in its office and places of business in Seattle, Washington, including all places where notices to em- ployees are customarily posted, and in the radio shacks on all vessels owned or operated by it, copies of the notice attached to the Inter- mediate Report and marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by this Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by this Respondent to insure that said notices are not altered, defaced, or covered by any other material. (4) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent Company-has taken to comply herewith. 2. American Radio Association, CIO, its officers, rein•esentatives, agents, successors, and assigns, shall: (a) Cease and desist from : (1) Causing Alaska Steamship Company, its officers, agents, suc- cessors, or assigns, to refuse to employ any qualified person or to dis- criminate in any manner in regard to the tenure of employment or any term or condition of employment of its employees for failure to belong to American Radio Association, CIO, except as authorized by Section 8 (a) (3) of the Act. (2) In any like or related manner restraining or coercing employees of Alaska Steamship Company, its successors or assigns, in the exer- cise of their rights to engage in, or to refrain from engaging in, any or all of the concerted activities guaranteed in Section 7 of the Act. 4 This notice, however, shall be, and It hereb3 is, amended by striking from line 3 thereof the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order." In the event that this order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." ALASKA STEAMSHIP COMPANY 25 (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) At an appropriate time and upon his request and proper ap- plication, restore Horace W. Underwood to its assignment lists in conformance with its rules, and refer him to assignments in accord with his proper place on those lists and without discrimination in any manner, except as authorized by Section 8 (a) (3) of the Act. (2) Post in conspicuous places in its offices in Seattle, Washington, and wherever notices to its members and other radio officers utilizing its employment facilities are customarily posted, copies of the notice attached to the Intermediate Report and marked "Appendix B." 5 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by this Respond- ent's representative, be posted by it immediately upon receipt thereof. (3) Alai] to said Regional Director signed copies of the notice at- tached to the Intermediate Report and marked "Appendix B," for posting, the Respondent Company willing, at the office and places of business of the Company in Seattle, Washington, in places where notices to employees are customarily posted, And in the radio shacks on all vessels owned or operated by the Company. Copies of said notice, to be furnished by said Regional Director, shall, after being duly signed by this Respondent's representative, be forthwith re- turned to the Regional Director for such posting. (4) Notify the Regional Director for the Region in writing, within ten (10) days from the date of this Order, what steps the Respondent Union has taken to comply herewith. 3. The Respondents, Alaska Steamship Company, its officers, agents, successors, and assigns, and American Radio Association, CIO, its officers, representatives, agents, successors, and assigns, shall jointly and severally make whole Horace W. Underwood for any loss of pay he may have suffered by the Respondent's discrimination against him, in the manner described in the.Intermediate Report. IT IS FURTIIER,ORDERED that, the complaint be dismissed insofar as it alleges that the Respondent Company has violated-Section '8 (a) (2) of the Act or has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) thereof, except by the dis- crimination against Underwood. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that the Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) except by the discrimination against Underwood. 6 See• footnote 4 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges duly filed by Horace W. Underwood, herein called the Complain- ant, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Nineteenth Region (Seattle, Washington), issued a consolidated complaint dated January 22, 1951, against Alaska Steamship Company, Seattle, Washington, herein called the Company, and American Radio Association, CIO, Seattle, Washington, herein called the Union, and jointly called the Respond- ents, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 8 (b) (1) (A) and (2), respectively, and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, accompanied by an order consolidating the cases and notice of hearing, and copies of the respective charges, were duly served upon the Respondents. With respect to the unfair labor practices, the complaint alleged in substance that: (a) On December 3, 1948, the Respondents entered into an agreement, later amended by an agreement of July 14, 1950, each of which provided that the Com- pany would obtain its marine radio officers through the facilities of the Union and also contained preferential employment provisions which were illegal and void because of the failure to satisfy the requirements in the proviso to Section 8 (a) (3) of the Act, both as to the conduct of a union-shop election and the permissible limits of union-security provisions; (b) since about May 15, 1949, the Union has had in effect certain shipping rules for radio officers, pursuant to which the Union has maintained and administered assignment lists, restricting to members of the Union referrals to positions with the Company and other employers; (c) notwithstanding application by Horace W. Underwood, a radio officer, to the Union for placement on its assignment lists and to the Company for employment, the Union refused to dispatch Underwood to the Company or other employers for available positions as a radio officer; and (d) by said acts and conduct, the Union violated Section 8 (b) (1) (A) and (2) and the Com- pany violated Section 8 (a) (1) and (3) of the Act. On January 31, 1951, the Company filed its answer, admitting certain allega- tions of the complaint concerning its corporate structure and business activities. The answer admitted also that on December 3, 1948, the Company, through Pacific American Shipowners Association, and on July 14, 1950, through its successor, Pacific Maritime Association, acting on behalf of their member com- panies, had entered into labor agreements with the Union, but the answer denied that the Company had engaged in unfair labor practices. On February 2, 1951, the Union filed its answer, admitting that it was, and had been, under con- tractual relationships with the Company, but denying that it had engaged in unfair labor practices. Pursuant to notice, a hearing was held on February 26 and 27, and March 26 to 28, 1951, inclusive, at Seattle, Washington, before the undersigned Trial Examiner duly designated by the Associate Chief Trial Examiner. The General Counsel, both Respondents, and the Complainant were represented by counsel, and all participated in the hearing. Full opportunity to examine and cross- examine witnesses and to introduce evidence pertinent to the issues was afforded all parties. At the opening of the hearing, the General Counsel moved to I The General Counsel and the attorney representing him at the hearing are referred to as the General Counsel . The National Labor Relations Board is referred to as the Board. -ALASKA STEAMSHIP COMPANY 27 amend the complaint in a minor respect, and the motion was granted. The Union moved to strike certain allegations of the complaint,, which motion was joined in by the Company. It was taken under advisement by me and later denied. The Company moved, and the Union joined therein, to dismiss the allegations of the complaint that the contract of July 14, 1950, was unlawful per se, upon the ground that the alleged unlawful provisions therein had been approved- in substance by the Board in another proceeding involving other parties, and this motion was taken under advisement. The Company also moved, with the Union joining in, that the complaint be dismissed insofar as it alleged that the execution of the agreement of December 3, 1948, had been unlawful, upon the ground that no timely charge had been filed. This motion was granted upon that and an additional ground, as will appear in the discussion of the contracts below. On the second day of the hearing, the General Counsel moved to amend the complaint in several respects, particularly to allege'' that -the - Company violated Section 8 (a) (3) by its failure to employ Underwood after his applica- tion to the Company for employment, and to allege also that the Company, by its alleged acts and conduct above recited, violated Section 8 (a) (2) of the Act. This motion was granted over the Respondents' objections. Upon motion of the Respondents, the hearing was adjourned until March 26. When the hearing resumed, the Respondents moved that their respective answers be deemed amended to deny the new allegations, and these motions were granted. The Company, with the Union joining therein, renewed its motions above stated to dismiss certain allegations of the complaint, and my rulings were as before. At the close of the hearing, the General Counsel moved to conform the pleadings to the proof as to minor matters, and this motion was granted without objection. Each Respondent moved to dismiss the complaint upon the ground that there had been a failure of proof, and the Company renewed its motion to dismiss the allegation that the contract of July 14, 1950, was unlawful per se. These motions were taken under advisement, and are disposed of in accordance with the deter- minations below. The parties did not avail themselves of an opportunity to argue orally, but there was a brief discussion of the issues on the record. Pursuant to leave granted, the Respondents and the Complainant filed briefs. Upon the entire record in the case and'from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 'Alaska Steamship Company, a Washington corporation with its principal office and place of business in Seattle, is engaged in the operation of ocean-going vessels for the transportation of persons and cargo between ports in the United States and ports in the Territory of Alaska. During the year 1950, the Com- pany's revenue from its business' activities exceeded $100,000. There is no dispute, and I find, that the Company is engaged in commerce within the mean- ing of the Act. ' II. THE LABOR ORGANIZATION INVOLVED American Radio Association, CIO, is a labor organization admitting to member- ship employees of the Company. III. THE UNFAIR LABOR PRACTICES A. Preliminary statement The Company is a member of Pacific Maritime Association, herein called PMA, and was a member of PMA's predecessor, Pacific American Shipowners 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association, herein called PASA. These associations, neither of which is a party to this proceeding, represented their member companies in collective bargaining negotiations with the Union. This case involves a contract between PASA and the Union, dated December 3, 1948, and the Union's applicable shipping rules governing assignments of radio officers to available positions under prin- ciples of "rotary hiring," a system based essentially upon hiring in rotation with an effort to distribute the work equally. The legality of that contract was in issue in Pacific Maritime Association, 89 NLRB 894. The succeeding contract between PMA and the Union, dated July 14, 1950, and executed after the Board's decision in the cited case, is also involved here along with the Union's revised shipping rules, both of which were in effect at the time of the hearing herein. The December 3, 1948, contract is herein called the 1948 agreement. The later contract is called the 1950 agreement. The complaint alleges that each agree- ment was unlawful per se and in its administration. Additionally, we have alleged discrimination against Horace W. Underwood, a radio officer who sought employment with the Company during the lives of the two agreements. First we shall consider the issues concerning the agreements and the Union's shipping rules, and next the issues involving Underwood. B. The app eernents and the Union's shipping rules 1 The 1948 agreement On December 3, 1948, PASA and the Union executed a collective labor agree- ment which, in part, was as follows : PREFERENCE OF EMPLOYMENT Section 1. Employers [Member Companies of PASA] agree to recognize the Association [Union] as the authorized collective bargaining agent for all Radio Officers employed by Employers and when filling vacancies prefer- ence of employment shall be given to members of the Association. HIRING Section 2. The names of all unemployed members of the Association shall be placed on the Association's unemployed lists at the various offices of the Association . The offices of the Association shall be the central clearing bureaus through which all arrangementsin conneeti i f with the,,employ- ment of Radio Officers shall be made. For the purposes of promoting safety of life and property at sea, and to guarantee as far as is practical equal distribution of work among all members of the Association , the parties hereto agree that vacancies shall be filled in the following manner. Pref- erence shall be given the Radio Officer longest unemployed who can present proof of previous employment and/or experience on a job or jobs similar to that which is offered , and who in the judgment of the Employer is qualified , competent, and satisfactory to fill the job. When any Radio Officer is rejected , the Employers shall furnish a state- ment in writing to the Association stating specifically the reason why he is not qualified, competent , and satisfactory to fill the job. a s s * • DISCRIMINATION Section 3. (a) The Employers agree not to, discriminate against any mem- ber of the Association for legitimate union activity. • - - ALASKA STEAMSHIP COMPANY 29 Section 3 (b) of the contract provided certain substitute procedure for the employment of radio officers by the Member Companies of PASA in the event that the above-quoted provisions were "suspended in any way as a result of legal action . . .," which substitute provisions were to be applicable during nego- tiations for "provisions complying with the law." 2. The Union's applicable shipping rules The Union's shipping rules, correctly termed "National Marine Assignment Rules," which were adopted in early 1949 and were effective thereafter during the life of the 1948 agreement, are quoted in part below. In order to facilitate an understanding of the changes later made in the rules, certain wording is emphasized The rules provided • Rule 1. It is the policy of the Union that the membership shall be offered employment through the Branch offices of the Union in accordance with the principle of rotary hiring. . . Rule 3. The term "member" or "menz,bersh.ip" as used in these Rules shall mean a full book member or members in good standing in the American. Radio Association. NATIONAL ASSIGNMENT LIST Rule 4. (a) A National assignment list shall be maintained by the Union. Such list shall be posted in each Branch office of the Union. Rule 4. (c) The assignment list shall be considered confidential and shall not be divulged in whole or in part to any non-member of the Union. REGISTERING ON LIST Rule 5. (a) All members desiring to obtain employment shall register for the assignment list and shall be designated as Active [available for employ- ment] for a specific Branch office of the Union. ASSIGNMENT LIST FORMS Rule 6. (a) A member registering on the Assignment List shall fill out in full an Assignment List Application Form provided by the Union ASSIGNMENT PROCEDURE Rule 7. All Active members shall be offered employment in rotation, in accordance with the following basic procedure : 1. The Port Assignment Committee shall first offer employment to'the member registered on the Assignment List who is designated as active at the_ TBranch..Qfce and whose number is lowest in numerical order of the Assignment` List (the highest in shipping seniority) . . . If such member shall accept the offered employment the member shall be issued clearance to the job. 2. If the member who has been offered employment in accordance with (1) hereof shall refuse such offer of employment or shall not answer such offer within a reasonable time, the Assignment Committee shall offer such em- ployment to the member whose number is next lowest in numerical order of the Assignment List and who is designated as Active. 3. The procedure described in (1) and (2) hereof shall be continued until- such time as the Assignment Committee shall secure a member who will accept the offered employment. [Entire emphasis supplied.] 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The shipping rules also provided the method for compilation of a national assignment list each week. Members of the Union obtaining employment had their names transferred from the "Active" column to the "Employed" column, and in practice were dropped 30 places on the list. For each week of employ- ment, in a permanent or temporary job, a member's number on the succeeding weekly list was increased by 30, thereby causing him to progress toward the bottom of the lists. Unemployed members moved upward to the places formerly held by members who had secured employment. 3. The 1950 agreement On June 3, 1949, PMA replaced PASA.2 On April 28, 1950, the Board issued its decision in the Pacific Maritime case, holding that the execution of the 1948 agreement had been violative of Section 8 (a) (1) by PASA because of the provision granting preference in hiring to members of the Union. The Board found "it unnecessary to consider either the closed-shop or the hiring-hall aspects of this contract." There is some dispute whether the Respondents acted under a contractual relationship until the new agreement was executed, but I believe it is unnecessary to recite the details. It is sufficient to say that the Company continued to obtain its radio officers through the Union. After the decision in the cited case, PMA, representing the Company and its other members, and the Union began negotiations for a new agreement. The Union also undertook to revise its shipping rules. On July 14, the Union and PMA executed the 1950 agreement, retroactively effective to the date of the decision in the cited case. The new agreement recited that the 1948 agreement, and certain "Supplementary Agreements" not here in issue, were "reinstated with all rights and benefits accruing to the parties" and that the 1948 agreement was to "be continued until its expiration date [June 14, 1951, with a renewal provision from year to year]," with certain amendments described below. Section 1 of the 1948 agreement, entitled "Preference of Employment," was amended to read : Recognition. The Employers agree to recognize the Association as the authorized and exclusive bargaining agent for all Radio Officers employed by the Employers. Section 2, entitled "Hiring," was amended to read : The Employers shall employ and continue in their employment on board their vessels Radio Officers procured from the list of unemployed Radio Officers on file at the nearest employment office of the Association [Union]. For the purpose of promoting safety of life and property at sea and to guarantee as far as practical equal distribution of work among Radio Officers, vacancies shall be filled in the following manner ; Preference shall be given to the Radio Officer longest unemployed who is qualified, competent and satisfactory and who can present proof of previous employment on vessels of one or more of the companies under agreement with the Association and who has worked as Radio Officer, on U. S. flag vessels during the two year period immediately preceding signing of this agreement and who has experience on a job similar to that -which is offered. This date is taken from the findings in.Pacifc Maritime Asspeiation, above cited. 'ALASKA 'STEAMSHIP COMPANY 31 The Association agrees to maintain , administer and operate its employ- ment offices and to apply the aforementioned preferences in accordance with the law and assumes sole responsibility therefor. When filling vacancies all Radio Officers shall produce official assignment clearance from the Association employment office. When any Radio Officer is rejected for employment, the company shall furnish a statement in writ- ing to the Association employment office stating specifically the reason why he is not qualified, competent or satisfactory to fill the job. In the event the Association employment office is unable to furnish a Radio Officer to fill a vacancy, the provisions of this section shall be waived in such cases and the company shall be free to fill vacancies from other sources, and the Associa- tion employment offices thereupon notified. The Employers agree not to discriminate against any member of the Association because of Union activity or because of race, creed or color. The Association agrees that no applicant or prospective employee shall be discriminated against because of membership or nonmembership in the Association or by reason of race, creed, color or national origin. Section 3, entitled "Discrimination," was amended to read : Association SeCUrity The Employers agree, as a condition of employment, that all employees in the bargaining unit shall become and remain members of the Association thirty (30) days after the effective date of this clause or thirty (30) days after date of hiring whichever is later. The foregoing clause shall become effective when the Association shall have been certified by the National Labor Relations Board as provided by Section 8A and 3 [sic] of the amended act, or when certification shall no longer be required, whichever is sooner. 4. The Union's revised shipping rules During June 1950, the membership of the Union at its various port offices adopted new shipping rules The adoption in Seattle was on June 21, and they became effective there simultaneously with the new agreement with PMA. These rules need not be quoted extensively. Reference may be made to the earlier rules above quoted, particularly to the emphasized wording therein. The new rules provide for a continuation of rotary hiring, with assignments to be in rotation in an effort to spread available work among the applicants . No distinc- tion is made between members and nonmembers in placement on the assign- ment lists. The words "membership" and "members" were deleted from the earlier rules , and the words "Radio Officer (s)" substituted therefor. The defi- nition of a member in rule 3 was supplanted by the definition of a "Radio Officer" as "a qualified and experienced Radio Officer who is eligible for employment on vessels under contract to the Union." The reference to "Branch offices" of the Union are now references to "Branch Hiring Halls." Rule 4 (c) of the earlier rules, providing that the assignment lists should be confidential to members, was deleted. Also deleted were the provisions in rule 7 that assignments were to be offered by the port assignment committees, the rule now reading merely that "em- ployment shall be offered" in the manner there provided' 8 Rule 10 (e) of the 1950.rules provides that "Radio Officers who are not members of the Union shall help defray the expense for upkeep of the Branch Hiring Halls by the payment of $25.00 for each three months each Radio Officers name is registered for employ- ment on board a union contract vessel. Such fee shall be paid for each three months in advance." The Union's constitution in effect during 1949 provided that membership dues were to be $15 quarterly, payable in advance, but the record does not disclose whether the amount has been changed. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5 The complaint's allegations concerning the agreements and the shipping rules The complaint alleges that both the 1948 and 1950 agreements contain prefer- ential employment provisions which are unlawful because of a failure to satisfy the requirements in the proviso to Section 8 (a) (3) of the Act, both as to the conduct of a union-shop election and the permissible liinits ' of union-security pro- visions. It is undisputed that the Union has not been authorized by the Board to enter into a union-security agreement. With respect to the Company, the complaint, as amended , also alleges inter cilia that it violated Section 8 (a) (1), (2), and (3) by entering into the 1948 and 1950 agreements , by "knowingly assenting to and participating in the adminis- tration of" the 1948 agreement "as amended which required the practice of obtaining all of its radio officers exclusively " from the Union , and by "know- ingly assenting to and accepting the assignment lists established " by the Union pursuant to alleged discriminatory shipping rules. With respect to the Union , the complaint is silent concerning the adoption of new shipping rules during 1950, it being alleged instead that the former shipping rules here remained effective The complaint also alleges inter aim that by en- tering into the 1948 and 1950 agreements, by adopting and administering dis- criminatory shipping rules, and by maintaining and administering assignment lists pursuant to such rules , the Union violated Section 8 (b) (1) (A) and (2) of the Act 6 Conclusions concerning the agreements and the shipping rules The questions to be decided at this point relate to the agreements and the shipping rules and the practices of the Respondents thereunder without regard to the alleged discrimination against Underwood , which is considered separately below after a chronological statement of the facts surrounding Underwood's relations with the Respondents. The initial question involves the 1948 agreement between PASA and the Union, the execution and performance of which are alleged to have been violative of Section 8 (a) (1), (2 ), and (3 ) by the Company and Section 8 (b) (1) (A) and (2 ) by the Union . As related above, this is not the first time the Board has had occasion to consider the 1948 agreement . In the Pacific Maritime case above cited , where the Union was not a party respondent , the Board found that PASA had violated Section 8 (a) (1) by the execution of the agreement because of the unlawful preference provision therein The complaint in that case also alleged a violation of Section 8 (a) (3) in the enforcement of the agreement, but the Board held that there was a "complete lack of evidence as to enforce- ment of 'thd illegal provisions," and dismissed the 8 ( a) (3) allegation. There was no 8 (a) (2) allegation , the absence of which was specifically commented upon by the Board in framing its remedy . As detailed above, after the issu- ance of the Board 's decision , PMA and the Union negotiated new contractual provisions which they contend , contrary to the General Counsel, are lawful. The Union also adopted new shipping rules to replace those which are alleged in the complaint herein to have been discriminatory . Under these circumstances, I do not believe that issues should be litigated anew , that an alleged violation of Section 8 (a) (2) based upon the 1948 agreement should be entertained, or that the conduct of the Respondents pursuant to that contract and applicable shipping rules should be the subject matter of litigation at this late date, except to the extent that there is alleged an instance of specific discrimination. It would not effectuate the purposes of the Act to do so. Cf . Califruit Canning ALASKA STEAMSHIP COMPANY 33 Company , 78 NLRB 112. To the extent that there was alleged unlawful dis- crimination against Underwood pursuant to the 1948 agreement and applicable shipping rules, the issues are properly subject to litigation in this proceeding Cf. Agar Packing & Provision Corporation , 81 NLRB 1262. Turning to the 1950 agreement, the basic allegation of the complaint is that the document is per se unlawful because of preferential employment provisions to members of the Union by reason of the Company's utilization of the Union's employment office as its sole source of radio officers , as set forth in section 2 of that agreement, and because there has been no union -shop election to author- ize the first paragraph of section 3 thereof. On the other hand, the Respondents, argue that the Company's use of the Union 's employment facilities in securing radio officers , where there is no preferential employment provision based upon membership in the Union , and where instead the agreement expressly provides that the Union shall operate its employment facilities "in accordance with the law" ` and that "no applicant or prospective employee shall be discriminated against because of membership or non -membership in the" Union , is a lawful arrangement sanctioned by the Board in _lational Union of Marine Cooks and Stelcaf ds, 90 NLRB 1099. The similarity between the proposed contractual pro- vision in that case and the language of section 2 of the 1950 agreement need not be set forth . In short, I find that the cited case is apposite and that section 2 is not per so i,uiawful Likewise , I find that the shipping rules of the Union, adopted during June 1950, are not per se discriminatory against nonmembers of the Union , With respect to section 3 of the 1950 agreement , the General Coun- sel's contention appears to be that the union -security provision in the initial paragraph is in violation of the Act regardless of its postponed effective date as set out in the second paragraph " This contention must be rejected. Gulf Shipside Storage Corporation , 91 NLRB 181. Turning next to the question whether the 1950 agreement and the Union's applicable shipping rules have been administered in a discriminatory manner between members and nonmembers of the Union, the allegations insofar as-,they involve Underwood are deferred to a,subsequent portion of this Report . There is no substantial evidence of a discriminatory administration involving other radio officers, although there is testimony by Carl Lundquist , port agent for the Union in Seattle at the time of the hearing, that only members have been listed on its national assignment lists since adoption of the existing shipping rules. But this fact does not establish that those rules, not per se discriminatory , have been misapplied to a discriminatory end. The rules were approved by the Seattle branch of the Union on June 21,,1950, at which time there were more radi <q,"pf lcers than there were available jobs, with the result that applicants had waited long 4 The Union asserts that the contractual phrases "qualified, competent and satisfactory" In reference to radio officers, and "in accordance with the law," include observance by the Union of certain prerequisites for dispatching radio officers : (1) A second class, or better, license by the Federal Communications Commission ; ( 2) "a license by the U S. Coast Guard as a condition to the right to be designated as a radio officer by Congressional Act (Public Law 525, 80th Congress, Second Session)" , and (3) screening by the Coast Guard of "all seamen ( including of course radio officers ) as to their loyalty and security risk status (Executive Order 10173, October 18, 1950 ; Fed. Reg. 7005, interprets or applies 40 Stat 220, as amended , 50 U S. C. 191)" The record discloses that all radio officers assigned by the Union to fill vacancies on -vessels of the Company after execution of the 1950 agreement were members of the Union when assigned, but it does not disclose whether they have retained such member- ship, nor does it disclose whether other radio officers already occupying permanent positions aboard vessels of the Company have retained their membership. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD periods of time for employment. On or about June 25, hostilities began in Korea, after which the demand for radio officers increased consistently until the available jobs outnumbered the applicants. Lundquist testified that with the increase in job opportunities, nonmembers sought employment through the Union. Insofar as the record discloses, nonmembers who did so were dispatched to jobs reasonably soon after applying, and some of them first sought membership in the Union and became "permit card members." The name of none of the non- members appears on any national assignment list, but the explanation offered by Lundquist is a reasonable one, uncontroverted by the record. That is, the lists are prepared weekly in the national headquarters of the Union for distribu- tion to the several branch offices. The basic purpose of the lists is to maintain records of radio officers who are seeking employment, designated on them as "Active," and unemployed radio officers who for personal reasons are not seeking employment, listed as "Inactive." In order to show the relative places of these individuals, week by week, it is necessary that the lists also contain the names of some employed radio officers, listed as "Employed" whose numbers in- ,crease at the rate of 30 places a week to make way for the names of "Active" and "Inactive" radio officers who steadily move upward on the lists during periods of unemployment. A sizable majority of the union members are not named on a recent assignment list, that of March 10, 1951-the Union has about 1,500 members-for the reason that they had been employed for periods of time long enough to give them numbers so low in shipping seniority as to place them at points on the list beneath the name of the radio officer listed as "Active" or "Inactive" at the bottom thereof. Since the basic purpose of the lists is to show the relative standing of "Active" and "Inactive" men, rather than "Em- ployed" men, the names of employed men with higher numbers than as indicated are not listed.' Lundquist's uncontroverted explanation for the absence of names of nonmembers on the lists prepared under the current shipping rules is two-fold: (1) Under the rules, a prerequisite to obtaining a place on a national assignment list is to register for employment, and some nonmember radio officers did not do so; 8 and (2) although registering, a radio officer would not be given a place on such a list if, before the next weekly compilation, he had been referred 8 During the period of June 29, 1950, to February 17, 1951, the Union made approxi- mately 50 assignments of radio officers classified by It as nonmembers, some of whom were dispatched to more than 1 job, and 8 of whom were dispatched through the Seattle branch of the Union. The name of none of the approximately 50 persons appears on a national assignment list as of the time he was dispatched. One of the 8 dispatched from Seattle was listed on other records of the Union as being in "bad standing" ; another was listed as a "permit card member," that is, as seeking membership ; and 2 were listed as being on a "deferred list," that is, former members seeking reinstatement. The record does not disclose the union status, if any, of the 4 remaining radio officers who were carried on the Union's record as nonmembers and who received assignments from the Seattle branch. Of this entire group of radio officers, only Dallas Hughes, listed as being in "bad standing," was a witness. He testified for the General Counsel that he registered for employment about August 3, 1950, and was dispatched about that date, and that there- after he was dispatched on 4 other occasions. T Shipping Rule 8 (b) 6 provides that "The names of Radio Officers in the Employed column who shall . . . [by reason of dropping 30 places on the assignment lists for each week of employment] be in higher numbered positions than any held by Radio Officers registered as Active or Inactive, shall be removed from the list... . 8 Rule 5 (a) provides that "All Radio Officers desiring to obtain employment shall register for the Assignment List and shall be designated as Active for a specific Branch Hiring Hall of the Union [according to the applicant's preference of the port from which he wishes to be dispatched]." Rule 6 provides for "Assignment List Application Forms" and that applications be transmitted to the Union's national office for placement on the assignment lists. 'ALASKA STEAMSHIP COMPANY 35 to a job ° in which category a number of nonmember radio officers fell. After the termination of any employment, whether the - radio officer be a member or nonmember of the Union, he can achieve a place as "Active" on a national assignment list only by again registering therefor and not obtaining employment anew before the compilation of the next list. It does not appear that any non- member was treated any differently in this respect than a member. Upon the evidence, there being no showing that under the existing shipping rules a place on a national assignment list has been denied to a nonmember under circumstances where it would not have been denied to a member, I find that there has been a failure.of proof that the Union's shipping rules have been misapplied so as to result in discrimination against radio officers because of nonmembership. Accordingly, the proof does not establish that the 1950 agree- ment has been unlawfully administered, and I shall recommend that the com- plaint be dismissed in all respects other than the allegations concerning Underwood, which will now be discussed. C. The discrimination against Underwood 1. Chronology of events Prefatory to considering the legal aspects of the alleged discrimination against Underwood, it is necessary to relate at some length the factual situation in his relations with the Respondents. On March 1, 1949, during the early life of the 1948 agreement, Underwood applied for membership in the Union. The application was acted upon favorably. While the record is silent on the period of his earlier membership in the Union or its predecessor, American Communica- tions Association, he had formerly worked for the Company and it may be inferred that this was not his initial application io Beginning with April 1, 1950, soon after his latest membership in the Union, Underwood wrote ,a series of letters to it in which he said inter alia that he was interested only in employment by the Company, that he opposed rotary hiring, and that he objected to "competing" under the, rotary system with other radio officers for such employment. As clarified by his testimony, Underwood's posi- tion was that he preferred to work aboard vessels sailing in the Alaska trade, ,that employment by the Company offered the best opportunity therefor, that he wanted to be regarded as one "of the [Company's] licensed officers . . . as the master and the mates," who apparently were not employed under a rotary system, and that it was unfair for radio officers who were willing to work for any employer to compete with him under rotary hiring for employment with -the Company, which offered a "very small proportion of the total jobs," when he did not compete with them for the greater number of jobs available with all .other employers. On March 31, 1949, while a member of the Union, Underwood accepted re- ferral to the Coastal Rambler, one of the Company's vessels. He remained so employed until early August when, contrary to his expectations, the vessel was Rule 8 (b) 7 is as follows : The names of Radio Officers who have registered as Active or Inactive during the week, and who were not 'previously registered on the List during such week, shall be added to the Active or Inactive columns at the end of the List in numerical order according to the date and hour each Radio Officer registered This provision shall not limit the right of or prevent any Radio Officer who has registered as Active during the week prior to a compilation of the List and has not as yet been physically added to the List from being offered and accepting assignment . If such Radio Officer shall have accepted an assignment before his name shall have been physically added to the List, his name shall not be added during the next compilation of the List. 10 As long ago as 1946, Underwood had made it known to representatives of the Union's predecessor that he was interested only in employment on vessels operated by the Company. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD temporarily removed from service and the crew was paid off. Underwood's as- signment to the Coastal Rambler had been a "permanent" one,. - He therefore had the right under the Union's shipping rules to exercise a choice between the following alternatives: (1) Retaining his position aboard the Coastal Rambler by "standing by" the vessel, without compensation therefor, and seeking employ- ment which did not require use of his radio operator's license, or (2) seeking employment requiring use of his license by taking a place on the assignment list at an appropriate number determined by the period of his employment on the Coastal Rambler. The latter alternative involved relinquishing his position on that vessel, in which event, when the vessel next sailed, the position would be offered to the radio officer at the top of the assignment list. At first Under- wood chose to stand by. He sought to obtain unemployment compensation during the period of standby, but found that under the rules of the State Unemployment Compensation Commission he was not entitled to such compensation unless he was actively seeking employment at a position requiring use of his license. Faced with the choice of standing by the Coastal Rambler without compensation from the Company, or relinquishing the standby right and drawing unemploy- inent compensation, Underwood chose the latter. On August 10, he registered for it place on the assignment list as actively seeking employment, but his number was quite low because he had dropped 30 places a week for the period of about 18 weeks aboard the Coastal Rambler. When that vessel returned to service in late September, the position of radio officer was offered to another member of the Union with a greater period of unemployment than Underwood, consistent with the Union's effort to equally divide the employment opportunities among its members. During early September, a temporary position became available aboard the Palisana, another of the Company's vessels, as relief operator for Tom Josserand who held the position in a permanent capacity and who had chosen to leave the vessel for an uncertain period, maiiitaining his right to stand by and to return to the position later. Since Josserand had the right to return and replace the operator who relieved him, the result for that operator would be temporary employment with the consequent drop of 30 places a week on the assignment lists for each week of employment. The relief job was offered to a number of unemployed operators, who declined it. Finally, in this way, Underwood's name was reached On September 14, he accepted the assignment, hopeful that Josserand would not return to the vessel and that somehow he could keep the position in a permanent capacity. Under the Union's shipping rules in existence sometime earlier, an operator who held a temporary assignment could retain the position in a permanent capacity if the operator being relieved chose not to return to the vessel. These rules had been changed in early 1949, however, and Underwood knew when he accepted the assignment aboard the Palisana that, under rules then existing, if Josserand chose not to return to the position, thereby opening it for a permanent assignment, the radio officer at the head of the assignment list would have the initial choice. About November 23, the Palisana was put in idle status for approximately it month, and the crew was paid off. On December 1, Underwood registered for a place on the national assignment list as actively seeking employment." '1 Underwood testified that sometime subsequent to December 1, 1949, Ralph 'Miller, then the Union's port agent in Seattle, offered him a tempora>;y position aboard the Baranof, a vessel of the Company, which he declined because of its tempoiary nature. The incident involving the Baranof occurred before January 17. 1950. because it is set out in the charge in Case No 19-CB-90, filed on that date ' An examination of exhibits showing the voyages of the Baranof and the radio officers assigned by the Union to po3i- tions aboard, establish that the incident occurred while Underwood was a member of the Union. ALASKA STEAMSHIP COMPANY 37 Underwood's experiences in the Coastal Rambler and Palisana positions made him aggrieved . He was so far down the assignment list that, as he testified, be believed that not until 1951 could he be reached' for employment by the employer of his choice, the Company. Underwood was wrong in this, -estimate , as will be developed, but the point is that his opposition to rotary hiring and to the Union's shipping rules gained momentum He felt that he -was entitled to seniority rights with the Company and that the rotary hiring system resulted in discrimination against him On December 23, Underwood wrote to the Company and requested "retention" of the position aboard the Palisaim In the letter, Underwood termed the position his own, which he ,.was foi ced to relinquish it short time ago on account of the temporary lay up of this vessel and certain illegal b.^laas of the" Union. Underwood, who'had received preference in employment by reason of his membership in the Union, did not have reference to the provisions of the Act in his allegation that the Union had "certain illegal bylaws" Instead, his reference was to the rotary hiring aspects of the bylaws which, as he saw it, were in disregard of his claimed seniority rights with the Company and which had not enabled him to obtain employment permanently with the employer of his choice. As the Company says in its brief, Underwood prefers "a system based upon job avail- ability and seniority with one company . . . [His] position and views would be the same and would have been the same under a rotary hiring system op- erated by employers on an industry-wide basis without the union in the picture at all." By December 27, Josserand had decided not to return to the Palisana. On that day, the vessel was removed from idle status preparatory to sailing and, under rotary hiring, Cyrus Wagoner was offered the position in a permanent capacity. Wagoner accepted.12 On December 28, Underwood wrote a letter of resignation to the Union, saying inter <4lia that he had resolved for the New Year (1) to seek to avoid approachiiig poverty `Which had been-caused by his- "poor luck" in obtaining employment under the Union's "employment Roulette Wheel [the system of rotary hiring] . ," and (2) "To fight a system . . . [which] will tolerate a set of bylaws that foster the complete elimination of the freedom of the individual and the titter disregard of earned and proven seniority rights." As related, Underwood was interested in employment with the Company only. He testified that he would accept other employment only "under duress," the force of economic necessity. Accordingly, after resigning from the Union, Under- wood did not make application for employment to any other employer repre- sented by PASA. On or about December 29, Underwood called upon William Felton, port engineer for the Company, and requested employment. He filled out an application blank and left it with Felton. At a union meeting during January 1950 , Underwood's resignation was ac- cepted , and during that month his name was removed from the national assign- ment lists 33 because he resigned from the Union." "Although the Palisana was in idle status at various times thereafter . Wagoner appar- ently chose to stand by during those occasions , rather than to seek other employment requiring use of his license, because at the time of the hearing lie still held the position is The assignment list prepared on December 31, 1949 , on a Nation-wide basis contained Underwood 's name as number 828 Of the radio officers desiring to ship out at Seattle. Underwood was number 21. The copy of the list which was sent to the Union's Seattle office shows Underwood's-name marked through with ink, after which appear the words : "Out of Union." It does not appear, however, when the deletion was made, and Under- wood's name appears on the national list for the following week , ending January 7, 1950, opposite number 796. Underwood having advanced 32 places toward the top of the list 998666-vol 98-52-4 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 17, 1950, Underwood filed charges against both Respondents in Cases Nos. 19-CB-90 and 19-CA-277. Copies of the charges were served upon the respective Respondents on January 19 and 21, 1950. Beginning on March 3, and continuing for about 3 months, Underwood wrote a series of letters to the Company in which he expressed (1) a continuing interest in obtaining employment with the Company; (2) his opposition to rotary hiring of radio officers; and (3) his preference for hiring based upon seniority with the Com- pany which, in his judgment, would have afforded him a better opportunity for obtaining employment with it. So far as the record discloses, the Company has never made it a practice to employ radio officers under the system advocated by Underwood. See Pacific American Shipoumers Association, 80 NLRB 622. On March 20, Underwood filed an amended charge in Case No. 19-CA-277, copy of which was served upon the Company on March 21. On March 29, the Company wrote to the Union and to Underwood, enclosing to each a copy of its letter to the other. In the letter to the Union, the Company said that Under- wood had made application for employment on December 29, 1949, and that another radio officer, Dallas Hughes, had made application on December 12. The letter contains the following paragraph : We request that when radio officers are ordered [by the Company] from your office that these applicants, upon registering with you, be dispatched without discrimination as to union or non-union affiliation or other dis- crimination whatsoever, anything in our collective bargaining agreement to the contrary notwithstanding. It is also requested that their registration with you be deemed effective from the date of the application filed with us. We, of course, reserve the right to reject for sufficient cause any person dispatched to us. The letter to Underwood was as follows : ... We are unable to give consideration to applicants for employment made to us by mail. We make use of the employment facilities of the office maintained by the American Radio Association .. . You are requested to'register with that office and we have requested that you be dispatched to us without discrimination. . . . If after so registering you consider that any discrimination has been practiced against you, kindly advise us in writing. On April 3, 1950, following the Company's suggestion, Underwood called at the Union's office. He testified that he registered for employment, but the cir- cumstances are not clear. He did not fill out an assignment slip, which is the normal and customary manner in which a radio officer seeking employment obtains a place on the national assignment lists. I believe, however, that it is during the period of a week. Underwood appears not to have been named on any national list thereafter. 14 The Union contends that Underwood's name was removed from the lists,because it was understood that he so desired, preferring to seek employment through other channels. This contention is unpersuasive. At that time, before the opening of hostilities in Korea, the number of radio officers seeking employment through the Union far surpassed the number of job openings on any given date. The 1948 agreement then in effect provided that preference in employment be given to members of the Union, and the applicable shipping rules provided that the assignment lists should be restricted to members and were designed to give them preference in employment. Moreover, the failure of the Union to reinstate Underwood 's name to the assignment lists during the early months of 1950, when he was seeking employment with the Company and when the Company requested of the Union that he not be discriminated against, as described below , is indicative that his name was removed , and remained removed, from the assignment lists during those months because he had resigned from the Union. ALASKA STEAMSHIP COMPANY 39 `immaterial that he did not do so. His name had been discriminatorily stricken from the assignment lists of December 31, 1949, and January 7, 1950. Had it not been stricken therefrom, it would have continued to rise toward the top of later lists, in accord with the principles of rotary hiring as persons ahead of him obtained employment, until he, was offered employment which he would have accepted aboard the Alaska on May 5, 1950, as described below. Also on April 3, Underwood wrote to the Company again. On April 12, the Company wrote to the Union, enclosing Underwood's letter and saying that Underwood had expressed the opinion that the Union would discriminate against him. The Company voiced the hope that the Union would not do so. On April 16, according to the undenied testimony of Underwood, which I credit, he chanced to meet Ralph Miller, then port agent of the Union in Seattle, and Miller offered him an assignment to another of the Company's vessels, the Flemish Knot, if lie would withdraw the charge against the Union. Miller said also, as Under- wood testified, that he would hold a union meeting to determine whether the membership would reinstate Underwood. The assignment on the Flemish Knot was declined by Underwood because he believed that it might be of short duration, and he asked Miller for a guarantee of 6 months' work as a condition for with- drawing the charge.15 Miller replied that he would take up the matter with the membership, and Underwood heard no more about it. On April 19 Miller responded to the Company's letter, saying that Underwood and Hughes had been listed for employment and that there would be no dis- crimination against them. Underwood's name does not appear to have been restored to a national assignment list, however. On April 28 the Board issued its decision in the Pacific Maritime case. On May 3, 1950, the Company's vessel, Alaska, which had been laid up since October 1, 1949, returned to service. Albert Dittberner and George D. Johnston, chief radio operator and first assistant, respectively, had retained their perma- nent positions on the vessel by remaining in standby. The second assistant radio operator during late 1949 had been Jesse D. Sneff, who apparently had not chosen to stand by the vessel. On May 5, Lewis A. Deyo was dispatched by the Union to fill Sneff's former position. For reasons detailed below, I find that the failure to offer this assignment to Underwood was discriminatory within the meaning of the Act. On May 7, 1950, Underwood wrote to the Company that it could "plainly see" that he would "get nothing but discrimination from" the Union, and he asked for employment in return for which he would withdraw the charges against the Company. The record does not disclose whether Under- wood had knowledge of or reference to the assignment of Deyo, nor does it appear that the Company responded to Underwood's letter. During ;June 1950 the membership of the Union at its various port offices adopted the new shipping rules. On July 14 the Union and PMA executed the 1950 agreement. Because of the allegations of the complaint that Under- wood was unlawfully discriminated against in the administration of that agree- ment, it is necessary to continue the factual recital concerning Underwood's relations with the Respondents, although unlawful discrimination against Underwood was practiced on May 5 in the failure to, offer him the assignment aboard the Alaska. 15 The position on the Flemish Knot was filled by the assignment on April 21 of Gena C. Hallett, a radio officer who had a higher position than Underwood on the national assign- ment lists from which Underwood's name was stricken . The position on the Flemish Knot appears to have been a permanent and relatively long one, contrary to Underwood 's expec- tations. With the exception of two periods of idleness, totaling about 2 weeks, the vessel was in continuous service from April 19', 1950 , to at least late February 1951 , when the hearing began. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 23, 1950, Underwood, having been unable to secure employment withi the Company, went to Kake, Alaska, for employment as a radio operator in a cannery. On September 11, while,there, his counsel filed in his behalf charges in Cases Nos. 19-CB-135 and 19-CA-358 On October 9, 1950, having returned from Kake, Underwood telephoned Lund- quist, who had succeeded Miller as port agent. Underwood said that he was available for employment within the following limitations : By the Company only, in a permanent capacity, aboard a vessel sailing in the Alaska trade, the voyages of which were to be of short duration. Lundquist had established a practice of preparing port assignment lists based upon the names of radio officers on the national lists who desired to work out of Seattle, and he noted on the port list in use that week that Underwood had made known his avail- ability for employment within limits. On October 13, Underwood declined referral by the Union to a position on a vessel in the Military Sea Transport Service because he preferred employment with the Company. On December 5, Underwood again telephoned Lundquist, saying that he would accept a temporary or permanent position on vessels of the Company in the Alaska trade le Underwood also said that he had been registered for employment since December 1, 1949, the date of registration following his employment aboard the Palisana, and he asserted that his name therefore should be at the top of the current national assignment list. The basis of Underwood's contention seems to have been that his name should have continued to move upward on the lists each week after that (late, including the period of his employment in Kake Lundquist said to Underwood, erroneously, that Under- wood's name was at the bottom of the national assignment list, "where it belonged." He also said, correctly, that Underwood's name was "not at the bottom" of another list, presumably the port assignment lists upon which Lund- quist had placed Underwood's name. Lundquist said further that he could not discriminate against Underwood, nor could he discriminate against members of the Union 17 Between October 9 and December 5, the dates of the two telephone conversa- tions, Underwood did not visit the Union's hiring ball. In that period, there were only two vacancies within the limitations imposed by him, one of which aboard the Victoria, was filled in a "pierhead jump," an emergency situation caused by the failure of the operator regularly assigned to the vessel to appear for the voyage and the assignment of an unemployed operator regardless of his place on the national assignment list.18 There was inadequate time in which to reach Underwood,, whose residence is on Vashon Island, between Seattle and Tacoma. The second vacancy, on the Denal,, was filled by an operator who was higher than Underwood on the national assignment list of January 7, the last list upon which Underwood's name appeared. On December 13, Underwood, accompanied by Hughes, called at the Union's hiring hall and talked with Lundquist. There was some discussion about dis- 16 Lundquist testified that this telephone conversation occurred on December 5, while Underwood fixed the date as December 12. The Seattle port assignment list indicates that the conversation took place during the week of December 4, rather than the following week , and I find that the correct date was December 5, as testified by Lundquist 17 The finding that Lundquist said that Underwood 's name was at the bottom of the national assignment list "where it belonged " is based upon Underwood 's testimony. Lundquist testified that he could not recall what lie had said in the telephone conversa- tion , but that later he realized that lie may have used "poor language" which could have caused Underwood to obtain a "misconception ," and that he. Lundquist, sought to correct any misconception when they met on December 13, as described below. 18 Rule 20 (2) of the Union 's, shipping rules envisions assignments out of rotation in situations of this nature. ALASKA STEAMSHIP COMPANY 41 patching radio officers to employment, and Underwood spoke of his inability to retain the permanent position aboard the Coastal Rambles during 1949 because •of the rules of the State Unemployment Compensation Commission , which he characterized as discrimination against him. Underwood reiterated his state- ment of December 5 that lie would accept temporary employment on vessels of the Company in the Alaska trade,- and again insisted that his name should appear at the top of the current national assignment list because he had not received referral to employment since December 1, 1949, about a year earlier. Lundquist said that Underwood's name was being carried on the port assignment lists, as it had been since Underwood's telephone call to Lundquist on October 9. Lundquist also said that Underwood's name did not appear on the national assignment lists because he was not a union member 1B On (December 19, by telegram, Lundquist advised Underwood of a position aboard a vessel of the United States Government sailing in Alaskan waters. Underwood declined it because the voyage was scheduled for 4 months, too long a period to suit his wishes, and also because he preferred to await employment with the Company. Between that date and February 6, 1951, shortly before the hearing herein, six vacancies occurred aboard vessels of the Company within Underwood's limitations . The Union did not utilize telephone or telegraph service in an effort to inform Underwood of any of the vacancies, nor does it appear that he visited the Union's hiring hall to seek an assignment. There is uncontradicted testimony by Lundquist, however, that in one instance the t acancy was filled by a radio officer who was entitled to the assignment in pref- erence to Underwood under a nondiscriminatory application of the shipping rules, while in the remaining, five instances the positions had to be filled quickly and there was too little time in which to attempt to contact Underwood on Vashon Island and have him arrive at any of the vessels before sailing time. On February 27, during the course of the hearing, the Union offered to refer Under-vv ood to a permanent position aboard a vessel sailing in the Alaska trade. the Pacifirls, operated by Coastwise Line, a member company of PMA Under- wood accepted, and he was employed in that position when the hearing closed about a month later 2 Conclusions concerning Underwood The amended complaint alleges that the Union, by utilizing discriminatory shipping rules and assignment lists, refused to, dispatch Underwood for employ- ment-with the Company, thereby causing the Company to discriminate against, Underwood in violation of Section 8 (a) (3) of the Act, and thereby itself violat- ing Section 8 (b) (2).20 The allegations that the Company discriminated against Und-er''ood are in substance two€old : (1)- By obtaining, all of its radio officers 19 This finding is based upon the testimony of Underwood and Hughes, which is flatly ,contradicted by Lundquist While I am mindful that Hughes' testimony on the point was obtained only after a leading question, and that the testimony of Underwood and Lundquist must be scrutinized because of their interests, I think that the testimony of Underwood and Hughes is to he accepted Clearly, as already found. Underwood's name did not appear on national assignment lists after January 7, 1950, and at least until the new shipping rules were adopted, because he was not a member of the Union. This finding. however, does not resolve the question whether the Union would have refused- Underwood a place on the national assignment lists tinder its existing shipping rules had Underwood sought to register therefor The issue is discussed below. 2D The complaint also alleges that the Union refused to dispatch Underwood to positions with employers other than the Company. Since Underwood was not an applicant for other employment until lie accepted the position aboard the Paciftcns , having previously rejected assignments with other employers and having testified that he would accept such assignments only "tinder duress," this allegation has no merit 42 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD through the Union and by accepting and assenting to assignment lists from which the Union unlawfully excluded Underwood; and (2) by refusing to employ Underwood after he made application directly to the Company during December- 1949. First to be considered are the allegations against the Union and the initial: allegation against the Company during the period following Underwood' s resig- nation from the Union and before execution of the 1950 agreement. It will be- recalled that Underwood, while a member of the Union, had a "permanent" posi- tion aboard the Coastal Rambler and that in order to draw unemployment com- pensation he chose not to remain in standby status when the vessel was tempo- rarily removed from service. Underwood regarded the situation as one of dis- crimination against him, but it is clear that there was no discrimination as contemplated by the Act. As a consequence of employment aboard the Coastal Rambler, and later employment aboard the Palisana, Underwood dropped so far- down the assignment lists that he believed there was no prospect for employment with the Company in a position to his liking until 1951. In this respect Under- wood was mistaken, but he felt prejudiced by the Union's shipping rules, uni- formly applied to him and other members. Accordingly, he resigned his member- ship and sought to achieve directly from the Company the employment which he- desired. As mentioned above, on May 5, 1950, Underwood was unlawfully denied em- ployment. The circumstances will be related. Underwood's name had been removed from the national assignment lists because of his resignation from the- Union. His name last appeared on the list of January 7, 1950, with the number 796. From the time of his resignation until May, 5, there were six vacancies- on vessels of the Company suitable to his preferences.21 All these vacancies were- filled by referral of radio officers with lower numbers than Underwood (higher- numbers in the order of shipping seniority) on the list of January 7, which is consistent with Underwood's own analysis of his poor prospects for employment with the Company at the time of his resignation. On May 5, which was subse- quent to the Company's written request of the Union that Underwood be referred for employment without discrimination, a vacancy in a permanent position aboard the Alaska was filled by the Union's referral of Lewis A. Deyo, and at this point, had Underwood's name not been stricken from the assignment lists, he would have been entitled to referral to the position ahead of Deyo under the principles- of rotary hiring. The contention of the Union and the Company is that Deyo• was entitled to the assignment, even assuming that Underwood's name had re- mained on the assignment lists R2 Documentary evidence was offered by the Union to establish this contention, but when it is examined in the light of the entire 21 February 23 on the Square Sinnet, February 24 on the Denali, March 14 on the Nadine, April 5 on the Coastal Rambler for its initial voyage in 1950, April 8 on the Lucidor, and April 21 on the Flemish Knot a In its brief, the Company argues that "This exchange of correspondence [with the- Union] clearly establishes an agreement between the union and the company as to Mr. Underwood which removed any alleged application of the illegal portion of the hiring- provisions of the December 3, 1948, agreement to Underwood. The fact that Underwood's; registration was accepted on April 3 [when Underwood visited the Union 's offices ] and pre- sumably made effective . . . on December 29, 1949 [prior to the effective date of Under- wood's resignation from the Union]. In accordance with the Company's request . . . also, pointedly demonstrates that the normal channels of employment were at all times open' to Underwood irrespective of his union status . . . [At] all times subsequent to April 3, 1950, Mr. Underwood received equal treatment in the normal channel of employment." The fact that the Union did not restore Underwood's name to the national assignment lists, plus- the facts surrounding the referral of Deyo,, rather than Underwood, to the position aboard1 the-Alaska, disprove the Company's contention. ALASKA STEAMSHIP COMPANY 43 record a fallacy is apparent. As contrasted with Underwood's place on the January 7 list, number 796, the Union incorrectly asserts that Deyo's number was 793, from which point he had advanced to number 544 at the time he was offered referral to the Alaska. The fact, however, is that Deyo's number on the January 7 list was 815 or thereabouts, as set out in the footnote." Under the facts herein, the preference in employment to members of the Union resulted in an unlawful denial of employment to Underwood."' The record leaves no doubt that Underwood would have accepted the position aboard the Alaska. I find that the Company discriminated against Underwood in violation of Section 8 (a) (3) and (1) of the Act, and that the Union, by causing the Company to do so, violated Section 8 (b) (2) and (1) (A) thereof.` Turning to the Company's refusal to hire Underwood after his application for employment during December 1949, the General Counsel contends that there was a continuing duty upon the Company, beginning with the first vacancy aboard 23 The assignment list for January 7 was not offered in evidence. The list of radio officers dispatched by the Union to positions with the Company shows Deyo's referral to the Alaska, and after Deyo's name there is the number 793 to signify his place on the January 7 list. That number had been marked through under circumstances which were not detailed, and the number 815 substituted The Union's testimony concerning Deyo's referral assumed that number 793 was correct, thus giving Deyo preference over Underwood for the referral. The number 815, or a number thereabouts, is correct, however. This is so because on the assignment list dated December 31, 1949, only a week earlier, which was received in evidence, Underwood was number 828 and Deyo was number 845. Since Underwood was unemployed, Deyo could not have advanced over and beyond Underwood on the list of January 7. The conclusion that Deyo's number on the latter list was 815 or thereabouts is further supported by the fact that the number for Harry 0 Buer thereon is 812, and only a few places separated these two individuals on the list dated December 31, Buer having been number 843, thereon u In its brief, the Company asserts that the record is barren of evidence that Underwood informed it that he had resigned from the Union, that it knew of the resignation at times material, and that Underwood advised it that union affiliation or nonaffiliation played any part in his opposition to rotary hiring. Instead, says the Company, its information was that Underwood opposed rotary hiring on an industry-wide basis, as described herein, and "that he believed that the company should establish a system based upon seniority with the company which would afford him a better chance of securing employment"" with the Company. In fact, however, the amended charge in Case No 19-CA-277, served upon the Company on March 21, 1950, alleges that the Company refused to employ Under- wood "to encourage membership in" the Union in violation of Section 8 (a) (3), and the Company's letter to the Union about a week later asked that the Union dispatch Underwood for employment "without discrimination as to union or nonunion affiliation or other discrimination whatsoever, anything in our collective bargaining agreement to the contrary notwithstanding." za A finding that the Company, by thus discriminating against Underwood, also violated Section 8 (a) (2) would be in accord with the authorities. Cf. United Hoisting Co, Inc, 92 NLRB 1642. I believe, however, that the finding should not be made There are two, reasons* First, the allegation of the complaint, as amended, that Section 8 (a) (2) was violated by discrimination against Underwood is included within a series of allegations deal- ing with the 1948 and 1950 agreements and alleged practices of the Respondents thereunder. That an 8 (a) (2) violation was in issue arising specifically out of the treatment accorded Underwood before execution of the 1950 agreement appears to have been lost sight of by- counsel and the Examiner in discussions interpreting the amended complaint and motions directed thereto, and counsel may have concluded, as did the Examiner, that such a 'viola- tion was not in issue. The point was not briefed Second, even if such a finding- were to be made, it would not lead me to alter the remedy set out below. This is so because no violation of Section 8 (a) (2) having been alleged in the Pacific Maritime case, the parties thereto were left free to negotiate anew. Specifically, PMA was not directed to, withdraw and withhold recognition from the Union. For nearly 1 year, PMA and the. Union have had a lawful contractual arrangement, the 1950 agreement, and I do not believe that at this date it would effectuate the policies of the Act to require that the Company withdraw and withhold recognition because of the discrimination against Underwood prior- to execution of that agreement. - 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one of its vessels, to fill a vacancy by employing Underwood.26 The theory appears to be that the 1948 agreement having contained an unlawful preference clause, there was an absolute duty upon the Company to disregard the principles of rotary hiring and to employ a radio officer who made direct application to it in preference to a radio officer referred by the Union. On the other hand, the Company asserts that it maintains no facilities for directly hiring radio officers, that since 1935 it has utilized the services of the Union and predecessor unions in order to employ such officers, as have other employers in the industry-wide unit, and that the provisions of the 1948 agreement embodying rotary hiring were lawful except insofar as preference in employment was given to members of the Union. I do not believe that the mere existence of the unlawful preference provision of the 1948 agreement obligated the Company to employ Underwood in the first vacancy arising after his application. The preference provision (lid not result in discrimination against Underwood until the employment of Deyo on May 5, 15)50 It was under normal principles of rotary hiring, long an integral part of the Company's hiring practices, that he was denied employment with the Com- pany until that date, and indeed it was precisely those principles to which he objected, and which furnished the basis for his resignation from the Union when he foresaw them as probably precluding such employment because many other radio officers possessed greater shipping seniority. No authority has been cited to support the apparent contention, and I do not perceive, that by resigning from the Union Underwood achieved a preferred status over all others, thereby overcoming his lack of shipping seniority and obligating the Company to hire him. We turn next to the alleged discrimination against Underwood under the 1950 agreement and applicable shipping rules. As found above, that agreement is not per se unlawful, nor are those shipping rules per se discriminatory as to non- members. Indeed, the complaint does not allege that those rules are discrimina- tory, the allegation being erroneous that the earlier rules had been continued in effect. The General Counsel does not contend that after the adoption of those rules and the execution of the 1950 agreement, Underwood sought a place on a national assignment list by the prescribed practice of executing an assignment form Indeed, it was Underwood's contention that he was bntitled to a place at the top of those lists in late 1950 because of his registration on December 1, 1949, after his employment aboard the Padisan a terminated. While it is true that Underwood's name had been removed from the lists with the object and result of discriminating against him unlawfully, I do not believe that I can justifiably conclude that there has been an unlawful administration of the 1950 agreement or a misapplication of the existing shipping rules. The most that can be said for the General Counsel's contention is that doubt exists that the Union will abide by those rules where Underwood is concerned. This doubt arises froin'Lundquist's.remarkrto Underwood that?the,latter's name dill.not aipear on a national assignment list because he was not a member, and the failure of the Union voluntarily to restore his name to the lists after adoption of the new rules On the other hand, upon Underwood's return to Seattle from employment in hake, Alaska, he had his initial communication with the Union after those rules became effective-a telephone conversation with Lundquist in which he said that lie 26 In addition to the vacancies described in footnote 21. there was the position aboard the Pahsana which Cndeiwood sought to achieve permanently for himself by his applica- tion to the Company, but which was assigned to another radio officer higher on the assign- ment list before Underwood resigned from the Union. In addition , there were a number of positions aboard other vessels of the Company which were held permanently by men in standby status, who returned to their respective positions when the vessels resumed operation Those positions. in my judgment , were not vacant positions denied to Underwood. ALASKA, STEAMSHIP COMPANY 45 -was available for employment within certain limitations. Thereafter, Lundquist placed Underwood's name on the port assignment lists and offered to refer him to employment, although he had not registered therefor under the provisions of the rules." The Union asserts that, had he registered,- and -had he thereafter rejected employment opportunities before compilation of the next national assign- ment list, he would have been entitled to, and would have received, a place thereon. Underwood chose, however, to rely upon a registration antedating the new rules by about 7 months. Under the circumstances, where it appears that other nonmembers who registered for employment were not treated differ- ently than members, I do not believe that the Union has been put to the test of whether it will treat Underwood differently than a member of the application of the existing shipping rules, and I find that the 1950 agreement has not been admin- istered so as to result in unlawful discrimination against him IV. TiIE EFFECT OF THE UNIAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III, C , above, occurring in connection with the operations of the Company described in Section I, above, have a close.- intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and oh- structing commerce and the free flow of commerce. 1'. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, 1 shall recommend that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. I have found that on May 5, 1950 , in filling a vacancy aboard the Alaska, the Company discriminated against Underwood in violation of Section 8 (a) - (1) and (3) of the Act, and that the Union caused the Company to, discriminate against Underwood , thereby violating Section 8 (b) (2) and ( 1) (A). The position aboard the Alaska as second assistant radio officer was a "permanent" one, and the vessel was in service for the period of May 3 to October 14 , 1950. On the latter (late, the Alaska was removed from service and its crew was paid off. I shall recommend that the Company and the Union , jointly and severally, make whole Underwood for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages from May 3 to October 14, 1950; inclusive , less'his net earnings " ( Crossett-Camber• Cownpawll„-, 8 NLRB 440, 497-8) during said period, the payment to be computed upon a quarterly basis in the manner established by the Board in F. W Woolworth Company, 90 NLRB 289. I shall also recommend , in accordance with the Woolworth decision, that the Company , upon request, make available to the Board and its agents all pertinent records. The Company's argument in its brief that Underwood should not be awarded back pay because his unwillingness to accept employment opportunities with other employers amounted to "a will- ful incurrence of wage loss" is not persuasive. Within approximately 2 months ZT A new registration is required after each period of employment in a position requiring use of the radio operator's license, and under the rules it is immaterial whether the employment (1) was achieved through the Union's facilities or by the radio officer's per- sonal efforts (2) was ashore or afloat, and (3) was with an employer under contract .with the Union This rule was carried over from the earlier rules when only members of the- Unipn }'era entitled to he placed on, assignment lists, and appears to have, had its " basis in an effort to prevent'-f'member'sraobtaining employment -without notice to the Union and having his name mount on assignment lists as "Active" or "Inactive" when in reality "Employed " -46 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD after the Respondents' discrimination against Underwood, he accepted employ- ment in Kake, Alaska, which continued for about the period that the Alaska was in service during 1950. The next question is whether the Company shall be required to offer Under- wood employment aboard the Alaska, or a substantially equivalent position. As related, the Alaska was removed from service on October 15, 1950. As of February 20, 1951, the vessel had not been returned to service. While the record is not specific on the point, it appears that the Alaska was laid up for the winter, rather than permanently removed from service.28 Under such circum- stances, Underwood would have enjoyed the right to stand by the vessel during the period it was laid up, thereby retaining his position30 It is perhaps ques- tionable that Underwood would have chosen to stand by 30 Whatever doubt there may be should not be resolved in favor of the Respondents , however, be- -cause their discrimination against Underwood gave rise to the doubt. I be- lieve, therefore, that the Company should be required to offer Underwood immediate employment in the position of chief radio operator aboard the Alaska, to which position he would have advanced under the Union' s shipping rules," or to a substantially equivalent position,$2 without prejudice to his seniority or other rights and privileges. I shall recommend accordingly. I shall also recommend that the Union and the Company, in the manner above provided, make Underwood whole for any additional loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date the Alaska was returned to service after October 15, 1950, to the 28 The Company's practice is to withdraw certain vessels from service at the end of its busy season each year. The Alaska is a passenger vessel which is not operated the year around. It was laid up from October 1, 1949, to May 2, 1950, when it returned to service for the period ending May 14, 1950. 29 While the Union for some time has had a rule limiting standbys, under certain cir- cumstances, to maximum periods of 90 days, the rule is not enforced in the Seattle area in instances of vessels which are operated only in the spring and summer seasons. See the next footnote Counsel for the Union indicated by his questions of a witness that the reason lies partly in the seasonal nature of the Company's business. 80 During the period of October 1, 1949, to May 2, 1950, when the Alaska was laid up, two of its radio officers, Dittberner and Johnston, chose to stand by. The third radio officer, Jesse D. Sneff, did not stand by for the entire period, and was succeeded on May 3, 1950, by Deyo. This period was one of slack employment for radio officers, and the record shows that those who held permanent positions aboard desirable vessels made it a practice to stand by when the vessels were laid up in order not to lose the positions. After the Alaska was laid up on October 15, 1950, when employment opportunities had greatly increased following the beginning of hostilities in Korea, Dittberner, Johnston, and Deyo gave up their rights to stand by the vessel, as is shown by certain port assignment lists. 8i Shipping Rule 13, entitled "PROMOTIONS ABOARD SHIP" Is as follows : When a vacancy occurs on a ship upon which more than one Radio Officer is employed, such vacancy shall he filled by promoting the remaining Radio Officer or Radio' Officers provided that such Radio Officer is competent and qualified in the judgment [of the] Branch Hiring Hall and has faithfully complied with Hiring Hall rules and policies during the term of his employment on such job. For the purposes of this section, competence shall be deemed to be satisfactory if no provable complaint of unsatisfac- tory performance of work has been filed with the Union Hiring Halls. Qualification shall he deemed to be satisfactory if the Radio Officer shall possess a requisite grade of Radio Operator license for the job. There shall be no special qualifications insti- tuted by any Branch Hiring Hall which shall conflict in any manner with the terms of this section. Underwood testified without contradiction , and I find, that he possesses the requisite grade of radio operator's license for the position of chief radio officer on vessels of the Company. 82 See The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, ,65 NLRB 827. 1 ALASKA STEAMSHIP COMPANY 47 ,date of the Company 's offer of employment," provided, ho" ever , that the Union may terminate its liability for further accrual of back pay to Underwood by notifying the Company , in writing, with a copy of such notification to Under- wood, that the Union has no objection to his employment as recommended ,herein. The Union shall not be liable for back pay accruing after 5 days from the giving of such notice . Absent such notice, the Union shall remain jointly and severally liable with the Company for all back pay that may accrue to Underwood until the Company offers him employment as recommended . Oeom ne W. Reed, 94 NLRB 698. As found above, the 1950 agreement and applicable shipping rules are lawful and nondiscriminatory as to nonmembers of the Union . Their continued observance by the Respondents as to all radio officers, including Underwood, -would not be unlawful . Accordingly, nothing herein is intended to exempt Underwood from the requirements of lawful shipping rules and collective labor agreements at the conclusion of such employment as shall be offered to him by the Company as above provided In accordance with the Board 's practice in factual situations of the nature presented herein, broad cease-and -desist orders will not be recommended. Carlyle Rubber Co., Inc, 92 NLRB 385 Upon the basis of the above findings of fact and upon the entire record in the case , i make the following: CONCLUSIONS OF LAW 1. The Union is :i labor organization within the meaning of Section 2 (5) of the Act 2 By discriminating in regard to the hire and tenure of employment of Horace W. Underwood, thereby encouraging ineinbership in a labor organiza- tion, the Company has engaged in and is engaging in unfair labor practices 'within the meaning of Section 8 (a) (3) of the Act. 3 By interfering with, restraining, and coercing its employees in the exercise ,of the rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By causing the Company to discriminate against Underwood in violation ,of Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2)-of the Act.. 5. By restraining and coercing employees in the exercise of the rights guar- anteed in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 7. In all respects other than the discrimination against Underwood, the Respondents have not engaged in the unfair labor practices alleged in ' the com- plaint as amended. [Recommendations omitted from publication in this volnme.1 99 Since Underwood was employed aboard the Pactficas before the Alaska commenced operations in 1951, there can be no question of willful 'loss of earnings for' this, period. The Pacificu8 is not operated by the Company , but by Coastwise Line, a member company of 'PMA. In its brief, the Company contends that it should not be required 'to` employ Underwood because he has obtained substantially equivalent employment . I believe, how- ever, that the policies of the Act will best be effectuated by the recommendation of Under- wood's employment , regardless of whether Underwood has obtained equivalent , employment elsewhere Atlantic Company, 79 NLRB 820. Moreover , the record does not disclose sufficient facts about the position aboard the Pacificus to determine whether it is,equi'valent to that of chief radio operator aboard the Alaska 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A NOTICE TO ALL EMPLOYEES Pursuant to,the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that. WE WILL NOT encourage membership in AMERICAN RADIO ASSOCIATION, CIO, or in any other labor organization of our employees, by refusing to employ any qualified person or by discriminating in any manner in regard to the tenure of employment or any term or condition of employment of our em- ployees, except to the extent authorized hy,Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. WE WILL offer to Horace W. Underwood immediate employment as chief radio operator aboard the Alaska, or in a substantially equivalent position, with all the rights of seniority and other privileges that would have accrued to him from the date of our unlawful discrimination against him, and we will make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership or nonmembership in any labor organization. ALASKA STEAMSHIP COMPANY, Employer Dated ------ ----------------------- By ------------------------------- (Reliresentative) (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 AMERICAN RADIO ASSOCIATION, CIO, To Ai.r. OTHER RADIO OFFICERS UTILIZING THE EMPLOYMENT FACILITIES OF THIS UNION, AND 7O ALL EMPLOYEES OF ALASKA STEAMSHIP COMPANY Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause ALASKA STEAMSHIP COMPANY, its officers, agents, SUC- cessors, or assigns, to refuse to employ any qualified person or to discriminate in any manner in regard to the tenure of employment or,any term or condi- tion of employment of its employees foi failure to bdlong,to-AMERICAN-.RADIO ASSOCIATION, CIO, except as authorized by Section 8 (a) (3) of the Act. JOSTEN ENGRAVING COMPANY 49 WE WILL NOT in any like or related manner restrain or coerce employees of ALASKA STEAMSHIP COMPANY, its successors or assigns, in the exercise of their rights to engage in, or to refrain from engaging in, any or all of the concerted activities guaranteed in Section 7 of the Act. WE WILL make whole Horace W. Underwood for any loss of pay suffered as a result of our unlawful discrimination against him. AMERICAN RADIO ASSOCIATION, CIO, Labor Organization. Dated -------------------- By --------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. JOSTEN ENGRAVING COMPANY , D/B/A AMERICAN YEARBOOK COMPANY and AMALGAMATED LITHOGRAPHERS OF AMERICA, LOCAL UNION No. 10 (CIO), PETITIONER . Case No. 18-I?C-1075. February 11, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Erwin A. Peterson, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner and the Intervenor, International Jewelry Work- ers Union, Local No. 17, AFL,. are labor organizations claiming to represent certain employees of the Employer. 3. The Employer and the Intervenor assert that their current 1950 contract constitutes a bar to this proceeding. The Petitioner contends that the contract is not a bar, on the grounds: (a) That it does not cover the employees herein sought; and (b) thatit contains an illegal union-security clause. Applicability of the Contract to American Yearbook Employees Petitioner seeks to represent a group of lithograph employees who work in the American Yearbook division of the Employer.' The Petitioner contends that the current contract does not cover any employees in this division, because the name of this division is not I The American Yearbook division or American Yearbook Company, a new project of the Josten Engraving Company. was established in the spring of 1950, some 6 months prior to the current contract, executed in August 1950. This division is engaged in the production, of high school and college yearbooks, and it draws upon the same market for the sale of its products as its parent company, the Josten Manufacturing Company, which manu- factureshigh school.and college jewelry. 98 NLRB No. R.