International Longshoremen's and Warehousemen's Union

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and benefit, personnel section of the industrial relations division, and merely has access to information concerning the hiring of employees, the administration of various benefit plans, and line supervisors' re- ports of employees' job performance which have promotional im- portance. Roberts is a stenographer in the safety section which ad- vises management on safety programs and handles workmen's com- pensation claims and related matters. We find that, as Bosich and Roberts do not assist or act in a confidential capacity to persons who formulate and effectuate labor relations policy, they are not confi- dential employees within the Board's definition of the term.-, Ac- cordingly, we shall include them in the unit. We find that all office and clerical employees at the Employer's Wood River, Illinois, refinery, excluding all other employees, con- fidential employees, guards, and professional employees, and super- visors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] a Cf. Minnesota and Ontario Paper Co., 92 NLRB 711, 712-713 ; Phillips Oil Company, 91 NLRB 534, 538-539. The Employer would also exclude as confidential certain other positions not now filled nor intended to be filled in the near future. We find it unnecessary to make any determination with respect to these positions. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION AND LOCAL 19, INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION and CLARENCE PURNELL AND ALBERT G. CRUM WATERFRONT EMPLOYERS OF WASHINGTON, AND ITS EMPLOYER MEMBERS and ALBERT G. CRUM AND CLARENCE PIIRNELL LUCKENBACH STEAMSHIP COMPANY, INC. and CLARENCE PIIRNELL ALASKA STEAMSHIP COMPANY and CLARENCE PURNELL ROTHSCHILD-INTERNATIONAL STEVEDORING COMPANY and CLARENCE PIIRNELL ALASKA TERMINAL AND STEVEDORING Co. and CLARENCE PURNELL TAIT STEVEDORING CO., INC. and CLARENCE PURNELL. Cases Nos. 19-CB-38,19-CB-62, 19-CA--220,19-CA--229,19-CA-227,19-CA- 228, 19-CA-230, 19-CA-256, and 19-CA-257. February 26, 1952 Decision and Order On April 6, 1951, Trial Examiner Thomas S. Wilson issued his Intermediate Report finding, inter alia, that the Respondent Water- *See Notice to Show Cause, 101 NLRB No 53, and Supplemental Decision and Order Amending and Clarifying Certain Findings in the Decision and Order of February 26, 1952, 101 NLRB No. 151. 98 NLRB No. 44. INTERNATIONAL LONGSHOREMEN'S, ETC., -UNION 285 front Employers of Washington 1 and the Respondent Local 19, of International Longshoremen's and Warehousemen's Union,2 had en- gaged in certain of the unfair labor practices respectively charged to each by the complaint, and recommending that each of these Respond- ents and the employer-members of Waterfront Employers of Wash- ington cease and desist from the unfair labor practices found and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner further found that these Respondents had not engaged in certain other alleged unfair labor practices, and that no other of the Respondents in this case had engaged in the unfair labor practices charged to them, and, accord- ingly, he recommended the dismissal of the pertinent allegations of the complaint. Thereafter, exceptions to the Intermediate Report were filed by the General Counsel, the complainants, the Respondent W. E. W., for itself and its employer-members, and the ILWU, for itself and its Local 19. Briefs in support of exceptions were filed by all those challenging the Trial Examiner's findings, except the ILWU. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and with the exceptions noted below, finds that no prejudicial error was committed. It therefore affirms all procedural rulings of the Trial Examiner other than those specifically noted below. The Board has considered the Intermediate Report, the briefs and exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. A. The discriminatory operation of the Seattle hiring hall This case is concerned with the operation of the Seattle hiring hall pursuant to contractual arrangements between the Respondent Unions, on the one hand, and the Respondent Employers, on the other. As the Intermediate Report discloses, these contractual arrangements are embodied in two agreements-one dated December 6, 1948, covering the employment of longshore workers, and the other, dated February 265 1949, covering the employment of dock workers. The former con- tract, one negotiated between the ILWU and various employer associa- tions following the longshore strike of September-December 1948, embodies in detail the procedure for hiring hall operations through- out the Pacific Coast area and binds all employers, members of the employer associations signing the contract (of which W. E. W. is one), to hire only through the hiring halls. This contract, referred to in the Intermediate Report and here as the Coast Agreement, is the I Herein referred to as w. E. W. 2 The International Longshoremen's and Warehousemen's Union is referred to herein as the ILWU, and its Local 19 as "Local 19" or "the Local." 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD identical contract the Board first considered in a case against the ILWU in which the Pacific Maritime Association was one of the complainants .3 It contains the very provision for preferential dis- patch of ILWU members which we held, in the PMA-ILWU case, to be proscribed by Section 8 (a) (3) of the Act. The additional agreement here involved, signed, by W. E. W. and Local 19, provides for the use of the hiring hall as established under the Coast contract, for the procurement of dock workers by the em- ployer members of W. E. W., and specifically incorporates the unlaw- ful preference clauses of the Coast contract. Because of the inclusion and maintenance of the unlawful preference clauses, the complaint charges W. E. W. and its individual employer members, as employer parties to both agreements, with violations of Section 8 (a) (3), 8 (a) (2), and 8 (a) (1) of the Act, and Local 19, union party to the Dock Agreement, with violations of Section 8 (b) (2) and 8 (b) (1) (A) 4 Respondents assert certain procedural defenses to these allegations. Primarily these defenses are predicated on the premise that, contrary to the provisions of Section 10 (b) of the Act, more than 6 months elapsed between the date the charges were filed and served, and the respective execution dates of the agreement. More specifically, as to the Coast Agreement, the Respondent W. E. W. urges that its unfair labor practice (if any) of "executing" the unlawful preferential hiring - contract was consummated on or about November 25, 1948, when the parties hereto orally affirmed it, and that hence the charge filed by Crum on June 14, 1949, was clearly "untimely." The record shows, however, that the complete Coast Agreement was not formally signed and executed until February 1949, a date clearly within the 6-month period preceding the filing and service of the June 14 charges. And, irrespective of whether a "cause of action" may have previously arisen because of oral agreement to the clauses found unlawful, it is clear that a new "cause of action" arose when the inclusion of such clauses in the completed contract was formally ratified and sanctioned. We find, therefore, as did the Trial Examiner, that there is no procedural bar to the assessment of unfair 3 International Longshoremen's and Warehousemen's Union, et at., 90 NLRB 1021. This case is hereafter referred to as the PMA-ILWU case More recently , the hiring hall procedures contained in that contract , as applied to certain individual employees in the San Francisco area, were considered in a case against the ILWU in which two individuals, Roosevelt Stafford and Joseph Sorce , were the complainants . International Longshoremen's and Warehousemen's Union, et at, 94 NLRB 1091 . This case is hereafter referred to as the Sorce and Stafford case. 4 The General Counsel's representative stated on the record that the omission of the ILWII from the portions of the complaint alleging the inclusion and maintenance of the unlawful preference clauses in the Coast Agreement to be unlawful was due to the fact that the Board's outstanding order against the ILWII, issued in the PMA-ILWU case ( op. cit. supra ), involved the identical Coast contract , and hence there was no need for further litigation of the same unfair labor practice in this case. INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 287 labor practice liability against W. E. W. on the basis of its execution and effectuation of the unlawful preference clauses of the Coast Agreement. As to the Dock Agreement, the exceptions of the Respondents W. E. W. and Local 19, which aver that the procedural requirements of the 10 (b) proviso were not met, point out that the only charges filed and served within 6 months of the execution date of this agree- ment did not specifically identify that contract with the unfair labor practices charged. Like the Trial Examiner, we find no merit in these exceptions. As we have pointed out in a number of decisions,5 the filing and service of a charge stops the running of the 6-month limitation provisions of Section 10 (b), as to any unfair labor practice committed within the 6-month period preceding the filing and service of the charge and/or any period subsequent thereto, whether or not the charge particularly mentions the acts involved. We therefore adopt the finding of the Trial Examiner that the complaint properly alleged, as to both W. E. W. and Local 19, the unfair labor practices reflected by the execution and maintenance of the Dock Agreement. The Trial Examiner concludes, and we agree, that the Respondent W. E. W. violated Section 8 (a) (3) and (1) of the Act by its execution and maintenance of the Coast and Dock Agreements, and that the Respondent Local 19 violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act by its execution and maintenance of the Dock Agreement. He dismissed, however, the allegation of the complaint additionally charging that the Respondent W. E. W.'s activities were violative of Section 8 (a) (2) of the Act. We find merit to the General Counsel's exception to such dismissal. In accordance with established precedents we hereby find that by its execution and maintenance of the Coast and Dock Agreements the Respondent W. E. W. also violated Section 8 (a) (2) of the Act. As noted above, the complaint also charges the individual members of W. E. W. with violations of Section 8 (a) (1), 8 (a) (2), and 8 (a) (3) of the Act, based partly upon their connection with the unlawful contractual arrangements, and partly upon the alleged commission by some of them of independent conduct violative of the Act. The Trial Examiner found that none of the individual Employer-Respondents committed the independent unfair labor practices charged to them, but held that each of them was individ- ually responsible for the unfair labor practices committed by W. E. W. Accordingly, he included each of them within the directive of the 6 E. g. Cathey Lumber Co., 86 NLRB 157 ; Ferro Stamping Co., 93 NLRB 1459 , Olin In- dustries, Inc., 97 NLRB 130. See also N. L. R. B. v. wester Boot and Shoe Co., 190 F. 2d 12 (C. A. 5). 6 E g., Julius Resnick, Inc., 86 NLRB 38 ; Federal Stores, Inc., 91 NLRB 647 ; New York State Employers Association et al., 93 NLRB 127; Strauss Stores, Inc., 94 NLRB 440. See also the PMA-ILWU case, supra. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remedial order. We agree with the Respondent W. E. W., however, that such an order is not appropriate here. The record shows that only five of the individual employers, those named in Cases Nos. 19-CA-227, 228, 230, 256, and 257, were actually served with the complaint and notice of hearing. The remaining individual employers are therefore not properly before us? We shall therefore dismiss the complaint as to this group on that ground. As to the five which were served with the pleadings, the Trial Examiner recommended dismissal as to two (Alaska Terminal and Tait) on the ground that they were not timely served with charges. As no exceptions were filed to this recommendation, we adopt it, whether or not we would otherwise agree with it, and shall dismiss the complaint as to Alaska Terminal and Tait. As to the remaining three (Alaska Steamship, Luckenbach, and Rothschild), the Trial Examiner dismissed on the merits," but since they were timely served, there is no procedural bar to their inclusion in the order. However, quite apart from any legal questions as to their responsibility for the unfair labor practices committed by W. E. W. because of their membership therein, we do not believe, under the circumstances of this case, that it would effectuate the policies of the Act to include only these three employers in the order. Our inability or failure to include any of the individual employers in the Board order does not preclude the issuance of directives to W. E. W, to utilize all powers it possesses, by virtue of its relationship to such members, to ensure their cooperation in the affectuation of the objectives of our order. The record here establishes that W. E. W. is empowered, under its charter, to force each of its members to participate in discharging liabilities which may accrue to W. E. W. as a result of action taken by it in its representative capacity, and within the scope of its broad authority in matters concerning labor relations. In these circumstances, we believe it will effectuate the policies of the Act to require W. E. W. to invoke the powers it has thus been granted by its members. Our order shall accordingly in- clude such a provision. There remains, as to W. E. W., a question as to whether we should order it, as part of the remedy for its unlawful execution and mainte- nance of the contracts here in issue, to set aside the entire contracts and to withdraw recognition from the Respondent Unions until certi- fied by the Board. The Trial Examiner failed to recommend such a v See Section 10 (b) and (c) of the Act. 8 In the case of Alaska Steamship and Luckenbach, the Trial Examiner dismissed upon the findings that the record did not establish the existence of an employer-employee rela- tion with respect to the kind of workers affected by the unfair labor practices alleged. In the case of Rothschild, the Trial Examiner's dismissal was based upon a finding that the evidence did not sustain its commission of the specific conduct attributed to it. No exceptions were filed to these rulings. INTERNATIONAL LONGSHOREMEN ' S, ETC., UNION 289 remedy; he merely ordered the deletion of the specific contract provi- sions found to be unlawful , and enjoined their enforcement or re- execution. Although such a limited order was recommended by the Trial Examiner in the light of his dismissal of the 8 ( a) (2) allega- tions, we note that the General Counsel takes no exception to the scope of the remedy so recommended by the Examiner, and indeed, affirma- tively requested that we not expand it. None of the other parties has excepted to the order. In these circumstances, we shall, in accord with analogous precedent ,9 adopt the Trial Examiner's recommenda- tion in this respect without substantial change. B. The discrimination against Crum and Purnell _ The additional allegations of the complaint are based upon charges that the hiring hall dispatchers denied dispatch privileges to long- shoremen Albert Crum and Clarence Purnell on and after certain dates, because they lost their membership status in the Respondent Unions and thus fell outside the class of persons entitled to the benefits of the unlawful union-security provisions of the Coast Agreement dis- cussed above, and that accordingly Crum and Purnell were discrimina- torily precluded from obtaining work with any longshore employer. In defending these charges, the Respondent parties conceded, in effect, that if the hiring hall dispatchers did in fact refuse dispatch to these individuals (or any others) such a refusal was tantamount, under the hiring hall arrangement, to a refusal of the longshore employers to hire 10 Each claimed, however, that neither Crum nor Purnell ap- plied for work at any of the times here material and that no "refusal" to dispatch could thus be established. In addition, the Respondent Local contended that in any event the complaint against it should be dismissed because of certain alleged procedural defects; and Respond- ents ILWU and W. E. W. each asserted that irrespective of what the facts might show as to the conduct of the hiring hall dispatchers, neither of these Respondent parties was legally responsible for the dispatchers' conduct. It thus appears that apart from the questions of liability, which we discuss separately below, we need only examine, for purposes of determining the factual validity of the complaint on the issue of discriminatory refusal to hire, those of the record facts- that may establish whether, and for what reasons, the hiring hall dis- patchers refused to refer Crum and Purnell to available employment. The Trial Examiner found that, in Crum's case, there was no merit to the Respondents' contention that Crum had failed to apply for "See The Squirt Bottling and Distributing Co., 92 NLRB 1667. Compare the PMA- ILWU case 11 Under the terms of the Coast Agreement, the longshore employers were bound to hire all their employees through the hiring hall, so long as the latter had any applicants available for dispatch. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work at the hiring hall in the customary manner. He found, further, that on or after January 29, 1949, the hiring hall dispatchers refused to dispatch Crum to available employment because, under the Re- spondent Local's intraunion regulations, Crum lost all his membership privileges on that date by failing to pay the $2,400 fine previously as- sessed against him by the Respondent Local's executive committee. We agree with the-Trial Examiner, but do not believe, as he appar- ently did, that in refusing to dispatch, the dispatchers were acting pursuant to Rule 1711 of the dispatching rules incorporated in the con- tract. For, as the Respondents point out, the "penalties" referred to in that rule involve penalties assessed for failure in the performance of employment obligations, rather than for deliquencies in obligations arising purely out of the possession of union membership status. We are of the view, rather, that in refusing Crum dispatch privileges, the hiring hall dispatchers were acting solely under the authority granted 1 o them under the unlawful security clause of the Coast Agreement to grant preferential dispatch privileges only to members of the ILWU. And, although the Trial Examiner made no specific finding that Crum's membership privileges in the ILWU were adversely affected by the Local's withdrawal of membership status, there is no question on this record but that this was so. Thus, it is clear from the ILWU's con- stitution and bylaws that membership in the ILWU is conferred only through the grant of membership by the Locals 12 Hence ILWU membership ' is adversely affected whenever a Local takes adverse action on a member's status. We so find. In the case of Purnell, as appears more fully in the Intermediate Report, his loss of membership privileges in the Respondent Unions occurred under circumstances similar to those established in the case of Crum. The $2,400 fine in his case was imposed on or about January 3, 1949, and upon his delinquency in payment, on February 3, 1949, he, like Crum, became automatically "debarred" under the Union's rules from "any and all benefits" of membership.13 The Trial Examiner found, in effect, however, that there was not sufficient evidence to es- tablish a "refusal" by the hiring hall dispatcher to refer Purnell to available work following this withdrawal of membership status in view of (1) the testimony of Chief Clerk-Dispatcher William Laing that Purnell's name was still on the plug board and that if he had applied, he could have been, and still could be, dispatched; and (2) This rule provides that "no man is to be dispatched for work when there is a penalty against him." 'a The only provision under the ILWU constitution for membership in the ILWU, apart from the Local , is in the case of persons belonging to a "dissolved local." Such persons have the 'privilege of retaining membership in good standing with the International until they affiliate with some other "Local ," by payment of $1 per month plus any other ( Inter- national ) assessments. Article IX, section IV of the ILWU constitution and bylaws, as amended, to April 9, 1949. is The quotations are from section 4, article IX, of the Local's constitution and bylaws. INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 291 Purnell's admission that he had not attempted to "plug-in" on the hiring hall's. boa-rd at any time here material. The Trial Examiner reasoned that, although he entertained "large doubts as to the accuracy and truth" of Laing's testimony with respect to the continuation of Purnell's dispatch privileges following his delinquency in payment of the fine, nevertheless "it would be pure speculation and surmise to find to the contrary" in the light of Purnell's admitted failure to apply at the hiring hall for work. We do not agree. For we believe that the "truth and accuracy" of Laing's testimonial representation is im- pugned both by the statements made by Laing and the Local Union's secretary to Purnell.at a time contemporaneous with the events com- plained of, aid by the independently established objective facts in this record, particularly the treatment accorded Crum for his failure to pay a similar assessment. As an affirmative proposition, we believe that Laing's contemporaneous conduct toward Purnell was such as to excuse Purnell's failure to apply for work, and to permit findings of discrimination, absent affirmative evidence that Purnell was offered dispatch during times here material. The record shows that, as Purnell testified, any application by him for work following the Local's suspension of his membership would have been a useless gesture. ^ Thus, examination of the methods by which the Local "policed" the hiring hall's administration of the Union's security provisions 14 and the operation of "bug" procedure, establishes that it -was the invariable practice of the Union to notify the hiring hall of any changes adversely affecting membership status,15 and a routine procedure for the hiring hall to remove the names of the affected individuals from the "regular" dispatch boards containing the names of union members.76 No showing was made by any of the Respondents that there were any independent circumstances in Purnell's case which precluded application of the "bug" procedure. On the contrary, the undisputed evidence establishes affirmatively that Purnell's situation was treated by the Union and the hiring hall exactly as was Crum's. Thus, Purnell testified without contradiction, and The Local's administration of the union-security provision was by virtue of delegation to It by the ILWIJ. is As part of the effective administration of the union-security contract rights, the Respondent Local has provided for the "policing" of the hiring hall -dispatching office by its business agent who must "see that only local members are employed or those author- ized by the Local and see that members keep themselves in good standing. He shall have the power to examine dues books on the job . . . and shall see that all members abide by and maintain the working laws of this Local." See article VIII, section 5 (b) of the Local's bylaws 16 The record shows that there are two boards in the hiring hall ; one, the regular dispatch board which contains the names of all registered longshoremen, and the other a "casual" board, containing the names of any other persons who come in to seek work through the hiring hall. Under the dispatch system, the first of any group of applicants who may apply to be dispatched to work are those registered longshoremen who are also union members ; next are the registered longshoremen who may not be union members, or whose membership status may have been adversely affected. After all registered persons have been dispatched, "casuals" are then sent out. - 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Trial Examiner found, that shortly after imposition of the fine by the Respondent Local, Purnell telephoned the hiring hall dispatch- ing office and spoke to Chief Clerk-Dispatcher Laing with a view to obtaining a "statement-of-availability" form required under the State compensation laws as a condition of obtaining unemployment benefits; According to Purnell, Laing told him on this occasion that he still had "30 days" in which to work, that hence the "statement-of-availability" form would not be supplied, and, in effect, offered Purnell a job at that time.lr Purnell, in turn, stated that he could not accept work at that time, due to an arthritic condition. It appears further that later, to- ward the end of the 30-day period following imposition of the fine, Purnell again telephoned the hiring hall and again spoke to Chief Clerk-Dispatcher Laing, renewing the request for an "availability" statement 18 On this occasion, Laing did not offer Purnell employ- ment, but told him "he [Laing] thought [Purnell's] time was up and [Purnell] couldn't work any more until [he] paid [his] fine." Laing also refused to give the "availability" statement, and referred Purnell to Bill Clark, secretary of the Respondent Local, for any further in- quiries in that connection. Clark likewise indicated he would not authorize the signing of the "statement" and similarly told Purnell he "couldn't work any more until [he] paid his fine." In the light of the foregoing circumstances, we find that Purnell's application for work would have been a futile gesture. Under well- settled principles, his making that futile gesture is not a prerequisite to a finding of discrimination 19 We find further, on the basis of the facts set forth above, that the hiring hall dispatchers denied dispatch to Purnell because, as in the case of Crum, by his delinquencies with respect to the outstanding union fine, he fell outside the class of persons, viz, "members" of the Union entitled to the benefits of the unlawful preference-in-dispatch provisions of the Coast Agreement. In so finding, we. are aware of the fact that Purnell was suffering from an arthritic condition, and that, as a consequence, he had refused employment proffered him by the hiring hall dispatching office before the withdrawal of dispatch privileges was effected, and that the record does not show when Purnell became physically fit to work. The absence of such a showing, however, in a situation such as this, affects only the framing of a back- pay order. It does not go to the substantive issue of discrimination; nor does it operate to relieve the Respondents from the obligation to offer Purnell employment opportunity. For, as above indicated, we are satisfied that so long as Purnell's membership remained in a "sus- Compare the similar treatment of Crum. The Trial Examiner mentioned only one conversation . However, Purnell testified that he called the hiring hall on two different occasions . We credit his testimony. ie See J. R. Cantrall Co., 96 NLRB 786; Utah Construction Co , 95 NLRB 196. INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 293 pended" status, the privileges of the hiring hall were wholly unavail- able to him, just as they were unavailable to Crum, without regard to his physical ability to do longshore work. C. Responsibility for the discrimination against Crum and Purnell 1. Local 19 Tie Trial Examiner refused to hold Local 19 responsible for the discrimination against Crum, because Crum failed to file charges against the Respondent within 6 months from January 29, 1949, the date the hiring hall's discrimination occurred. However, for reasons indicated in section A above, it is clear, and we find, that the "timely" charges filed by Purnell provided a sufficient basis for the litigation of Local 19's discrimination not only as to Purnell, but also as to Crum. As the record shows that the dispatchers were selected by Local 19, and were the ones engaged directly in administering the hiring hall's dispatch arrangement, Local 19's responsibility for the unfair labor practices is clear. We find, therefore, that the Respondent Local has engaged in and is engaging in violations of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 2. The ILWU The Trial Examiner substantively found that no liability for the hiring hall's discrimination could be attributed to the ILWU,20 in view of the latter's delegation to the Local of its contractual powers with respect to the hiring hall, and the absence of evidence indicating specific knowledge and ratification by the ILWU of the acts forming the subject of the complaint. However, for reasons set forth in the Board's decision in the Sorce and Stafford-ILWU case (94 NLRB 1091), we believe that the ILWU's delegation of its contractual pow- ers to`the,Local furnishes no basis for relieving it from liability. This is particularly true where, as here, the discriminatory acts of the hiring hall reflected the application of unlawful union-security provisions contracted by the ILWU for its own benefit (as well as the Local's), and vesting in it the over-all power of their administration. We find, therefore, that the ILWU is jointly and severally liable, together with the Local, for violations of Section 8 (b) (2) and 8 (b) (1) (A). 3. The W. E. W. The Trial Examiner held the W. E. W: responsible for such indi- vidual discrimination as he found. In excepting to this holding, m In view of Crum's "timely " charges against the ILWU , as described in the Intermediate Report, we find, contrary to the Trial Examiner, and for the reasons indicated above, that there is no procedural bar to the assessment of liability against the ILWU for the dis- crimination in the case of Purnell, as well as Crum. 998666-vol 98--3 ---20 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. E. W. contends that it cannot be held liable under the contract be- cause "the alleged refusal to dispatch . . . did not flow from the con- tract and from any system established under the contract. It was purely an unauthorized unilateral act by the Respondent Union." We find no merit in this contention and agree with the Trial Examiner, adopting only so much of his reasoning as is consistent with our views herein. In our opinion, the liability of the W. E. W. stems from the fact that it was one of the employer signatories to the contract which established the unlawful hiring hall arrangement. Under this arrangement, it was agreed that all hiring would be done through the hiring hall, that the dispatcher-the person in charge of the day-to-day dispatchment of men-was to be-selected by the union signatory and that in dispatch- ing men for jobs, "members" of the Union were to be given preference. Since the discrimination against Crum and Purnell because of this loss of good-standing membership 21 was, in our opinion, at least the reasonably to be anticipated result of the administration of the con- tractual preferential hiring hall procedure, we shall, in accord with applicable decisions, hold the W. E. W. responsible therefor.22 But we need not base our conclusion on this ground alone. For the record convinces us that the denial of employment to members who, like Crum and Purnell, had lost their good standing, was well within the contemplation of the contractual "member" preference clause. The hiring hall system provided for the registration of applicants and also superimposed a discriminatory preference in the dispatching of union "members." That the word "member" when used in the con- text of a union's security clause means "member in good standing" is clear.23 In any event, it is apparent that in administering the hiring hall, it was the established practice not to dispatch "members" who had "bugs" against their names for failure to pay their union dues or fines. The record convinces us that the W. E. W. knew such to be the established practice and acquiesced in it. Thus Cornell, the president of W. E. W., admitted that he had heard "rumors" of this practice and, according to the credible testimony of Purnell, had been advised that Purnell was being denied dispatching rights because he had not paid the fines assessed by the Union. We conclude therefore that liability for the hiriiag hall's discrimina- tory denial of dispatch privileges to Albert Crum and Clarence 5' As found above, Crum and Purnell were in effect denied employment because their failure to pay the fine assessed by the Local resulted in the loss of all beneficial attributes of membership in both the Local and the ILWU. 22 Cf Childs Co, 93 NLRB 281; Consolidated "Western Steel Corporation, 93 NLRB 1199; Del E. Webb Construction Co., et al, 95 NLRB 75; Utah Construction Co., 95 NLRB 196. 23 See Firestone Tire & Rubber Co., 93 NLRB 981, where the Board construed the word "member" in a similar context to mean "member in good standing." INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 295 Purnell is attributable to the Respondent W. E. W. and that, accord- ingly, it has engaged in, and is engaging in, violation of Section 8 (a)' (3) and 8 (a) (1) of the Act. D. The remedy for the hiring hall's discrimination against Crum and Purnell Selection of the appropriate remedies for the violations affecting Crum involves, inter alia, consideration of the effect to be given to the "deregistration" action of the Committee taken April 20, 1949, at the request of the union members of that Committee, pursuant to which Crum's name was removed from the port registration lists. This action, apart from his failure to pay the Union's assessment, precluded his normal employment through the hiring hall rotation system.24 Because the Union's demand was made under color of a long-established nondiscriminatory "employment" policy on the water front (promulgated to discourage the "casual" worker), the Trial Examiner reasoned in effect that the "deregistration" was valid. He held that it operated as a bar both to the entry of an order directing the Respondents to take steps looking toward the reinstatement of Crum's hiring hall privileges, and to the grant of back pay beyond April 20, 1949. The proponents of the complaint strongly except to the Trial Examiner's findings. In support of his exceptions, the General Counsel contends that irrespective of the validity of the Trial Examiner's subsidiary findings concerning the applicability of the "employment" policy to Crum, and the "good faith" of the reasons underlying its application to him,25 the Board should not permit the Respondent to assert this kind of action as a bar to an uncoliditional'reinstatement and back-pay order. We agree. It is well settled that the appropriate means to remedy unfair labor practices is a matter over which the Board enjoys broad discretion. We have customarily held, with judicial approval, that the policies of the Act can best be effectuated by ordering reinstatement with back pay to victims of discriminatory hiring and discharge practices. Under this approach, persons responsible for such discriminatory loss of employment incur an immediate liability to restore the status quo '' The Port registration lists contain the names of all registered longshoremen. Under the terms of the Coast Agreement , additions to, or removals from , such lists are entrusted to the Committee. The registration system serves to identify the workers who are entitled to be dispatched from the hiring hall, subject to the regulations of the hall and to the unlawful preferential dispatch practices in favor of union members . As noted above, persons who seek employment through the hiring hall , although not "registered" on the lists, are deemed "casuals," and , under the regulations of the hall, will be dispatched only after all available "registered" persons have been dispatched. u Such subsidiary findings are the subject of specific exception both on tine part of the General Counsel and of counsel for the charging parties. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ante.26 We do not believe that it would effectuate the policies of the Act to permit the Respondents to limit or terminate their liability by this voluntary action in retroactively applying a rather elastic rule during the period of the discrimination.27 But even if it be assumed that the parties acted in good faith in "deregistering" Crum, it is clear that his loss of employment was in no way related to that action; for he had already been effectively and permanently debarred from all opportunity to obtain employment on a nondiscriminatory basis. Moreover, the effects of discriminatory acts such as are here involved are not confined to specific victims alone. This is particularly true where, as here, the discrimination is but a specific act in furtherance of an over-all discriminatory hiring policy given specific contract sanc- tion. In such a situation, we cannot be certain that the effect of the un- fair labor practices will be completely eradicated by any remedy short of an unconditional order presently commanding fulfillment of the obligations the Respondent incurred at the time of the initial discrimination. But aside from the foregoing reasons for the fullest exercise of our remedial power in Crum's case, we find no warrant in the record for any claim that the deregistration reflected "good faith" appli- cation of the water front "employment" policy. On the contrary, as we view the evidence pertinent to this issue, we can only infer that the "deregistration" was a deliberate act in furtherance of a considered scheme to evade compliance with the obligations imposed by the statute. Thus the record shows that Crum's colorable failure to "accept his work responsibilities" in relation to the hiring hall predated the events involving Crum which form the subject of com- plaint. Nevertheless such failure was not invoked as a means of denying Crum access to the hiring hall until such time as it clearly appeared that Crum would not comply with the Union's demand that, as a price of restoration of hiring hall privileges, he remove the cause of the suspension of his membership-i. e., the nonpayment of the $2,400 fine. Furthermore, as the admissions of Dispatcher m Cf., inter alia, Salmon & Cowan, Inc. V. N. L. R. B., 148 F. 2d 941 (C. A. 5 ), enforcing 57 NLRB 845, where the employer sought to assert a long-existing physical infirmity of an employee discriminatorily discharged as a reason for the Board's withholding issuance of the normal (unconditional ) reinstatement order. The court approved the Board's refusal to consider such infirmity in framing its order, despite the employer's claim that he did not discover the infirmity until after the discharge. s'' The record shows that "deregistration " of part-time longshoremen was not effected by regular established routine, but only on a "hit-and-miss" method, whenever one of the members of the Port Labor Relations Committee felt "moved" to survey the employment records of longshoremen. Moreover, as the record indicates, even on a showing that a worker was a "part-time" longshoreman , the Committee still retained discretion to decide whether or not to remove such worker from the registration lists. Thus, Crum's name had apparently been "brought up" to the Committee for "deregistration " by the Union on a prior occasion , but the Committee had refused to act because it believed Crum' s failure to do longshore work, full time , had been due in part to an injury. INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 297 Laing establish'28 the Union's demand upon the Committee for the application of the "employment" policy to Crum, as well as the ap- proval of such action by the union representatives on the Committee,29 reflected a deliberate and unexplained departure from the standards normally utilized by the Union in determining whether or not in- vocation of the "employment" policy was appropriate in a particular case. Thus, Laing admitted at the hearing that a worker would not ordinarily be reported to the Committee for "low earnings" at longshore work, where the "absence" of the worker from such work had been due either to physical disability or to his employment at "gear locker" work. Laing further admitted that he had reported Crum's name to the Committee for "low" earnings in a prior year, but "nothing was done" because it was discovered that Crum had been injured on the water front. As Crum further testified that he had accepted "gear locker" work during a larger part of the 4-year period utilized by the Committee to determine whether Crum's earnings were "low," because of the injuries he suffered on the water front, and these facts were either known to, or were readily ascertainable by, the members of the Committee, it is plainly evident that the `ae- registration" action here involved was extraordinary. In the absence of any other explanation, and in the background of the prior dis- crimination of the hiring hall against Crum, it is reasonable to infer, rind we find, that at the very least the "deregistration" did not reflect a "good faith" application of the water front employment policy. We conclude, for all the foregoing reasons, that to effectuate the policies of the Act, our order should require the Respondents to take appropriate measures to restore to Crum all dispatch privileges of the hiring hall without regard to his union membership status, or to the "deregistration," and to make him whole for all loss of pay suf- fered as a result of the Respondents' discriminatory denial of hiring hall privileges to him. The same restoration of hiring hall privileges and payment of lost pay shall be ordered in the case of Purnell. In accordance with the Board's usual policy, the back-pay com- putation (1) shall exclude, in both cases, the period between the date of the Intermediate Report and the date -of this Decision and Order; and (2) shall otherwise be made in accordance with the formula set forth in F. W. Woolworth and Co., 90 NLRB 289. In addition, as to Purnell, the "back-pay" computation shall, of course, u Laing was the clerk-dispatcher, appointed by the chief dispatcher for that office, who instigated the "deregistration" action in Crum's case, upon instructions from the Local. He was the same person who told Purnell that he could not obtain work until he paid his fine. 29 The removal of the name of a worker from the Port registration lists requires the majority vote of the members of the Port Labor Relations Committee . As noted above, one-half the members of such committee are union representatives and one-half are management representatives. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclude the periods when Purnell was physically unable to do longshore work. As we have found that both the Respondent W. E. W. and the Respondent Unions are responsible for the discrimination suffered by Crum and Purnell, we shall order all the Respondents jointly and severally to make these employees whole for the loss of pay they may have suffered by reason of the discrimination against them. However, under the particular facts of this case, it would be in- equitable to permit W. E. W.'s liability to increase despite the pos- sibility of its own willingness to cease authorizing the discriminatory exercise of hiring power by the hiring hall dispatchers, in the event that the hiring hall dispatchers should fail to make dispatch privileges promptly available to those so entitled under the terms of our order. We shall therefore provide that the Respondent W. E. W. may ter- minate its liability for further accrual of back pay to Crum and Purnell or either of them by giving the notices specified in our order to the hiring hall dispatchers, the Port Labor Relations Committee, its Employer-Members, and Crum and Purnell .3' The Respondent W. E. W. shall not therefore be liable for back pay accruing 5 days from the giving of such notices. Absent such notification, the Re- spondent W. E. W. shall remain jointly and severally liable with the Respondent Unions for all back pay to Crum and Purnell that may accrue until the hiring hall dispatchers comply with our order for restoration of dispatch privileges. 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 : L.a Waterfront Employers of Washington, Seattle, Washington, and its officers, agents, successors, and assigns, shall : A. Cease and desist from : (1) Discriminating in the hire and tenure of employment of em- ployees by: (a) maintaining in effect, or participating in any manner in the enforcement of, the union-security provisions of the "Pacific Coast Longshore Agreement" dated December 6, 1948, and of the "Dock Workers Agreement for the Port of Seattle," dated February 26, 1949, which authorize the hiring hall for the Port of Seattle to grant preference in dispatch to members of the ILWU and/or Local 19; or (b) entering into, renewing, or participating in the enforce- ment of any like or related agreements or arrangements which have the effect of imposing upon the employees or prospective employees so Cf. Pinkerton'a National Detective Agency, Inc., 90 NLRB 205, 213. INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 299 of its employer-members, the requirement of union membership as a condition of employment, unless such agreement or arrangement conforms to the requirements of Section 8 (a) (3) of the Act. (2) In any other manner interfering with, restraining, or coercing employees of its employer-members in the exercise of the rights guar- anteed them in Section 7 of the Act, except to the extent that such right may be affected by an agreement made in accordance with the provisions of Section 8 (a) (3) of the Act, requiring membership in a union as a condition of employment. B. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (1) Jointly and severally with the Respondents ILWU and Local 19, make Albert Crum and Clarence Purnell whole in the manner specified in this Decision and Order, for any loss of pay suffered by them as a result of the discrimination of the Seattle, Washington, hiring hall against them. (2) Upon request, make available to the National Labor Relations Board, or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all or any other records necessary for the determination of the amount of back pay due under the terms of this Order. (3) Notify the Port Labor Relations Committee, and the dispatch- ers of the Seattle, Washington, hiring hall in writing, and furnish copies of such notices to Crum and Purnell, that the hiring hall dis- patchers (a) are not to give force or effect to those provisions of the Coast and Dock Agreements authorizing the preferential dispatch of members of the ILWU and Local 19; (b) are not to discriminate in any other manner in the hire and tenure of employment of any applicant for employment through the hiring hall because of their failure to acquire or retain membership status in the Respondent Unions; and (c) are to make promptly available to Albert Crum and- Clarence Purnell all dispatch privileges of the hiring hall upon re- quest, in accord with such nondiscriminatory conditions existing at the time of the discrimination against them, and, in' Crum's case, without regard to the "deregistration" action of April 20, 1949. (4) Notify, in writing, each and every employer of the employees covered by the terms of the contract mentioned in paragraph I (A), -(1) of the terms of this Order, and request that each of them take all steps necessary (including the transmission by each to the hiring hall dispatchers, of a written copy of the notice specified in paragraph (3) above) to insure that the dispatchers of the hiring hall will not discriminate against any applicant for employment because of his failure to acquire or retain membership status in the ILWU or Local 19. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (5) Invoke such powers and rights as it may have as to each mem- ber of Waterfront Employers of Washington who employs workers covered by the agreements mentioned in paragraph I, (A), (1) above, or who utilizes the facilities of the Seattle, Washington, hiring hall, in order to discharge its financial obligations under this Order, and to insure the cooperation of each such employer in effectuating the terms of this Order. (6) Post in conspicuous places in its business offices and in the Seattle hiring hall, including all places where notices to its employer- members and/or their employees are customarily posted, copies of the notice attached hereto, and marked "Appendix A." 31 Copies of this notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by officials of the Respondent W. E. W., be posted immediately upon receipt thereof and maintained for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by Respondent W. E. W. to insure that said notices are not altered, defaced, or covered by other material. (7) Notify the Regional Director for the Twentieth Region, in writing, within ten (10) days from the date of this Decision and Order, what steps it has taken to comply therewith. II. Respondents, Local 19 and ILWU, and their respective officers, agents, representatives, successors, and assigns shall : A. Cease and desist from : (1) Giving effect to the union-security provisions of such of the agreements, described in paragraph I, (A), (1) above, to which they are a party, and/or participating in the enforcement of such union- security arrangements whether or not they are signatory parties thereto. (2) Entering into, renewing, or agreeing to, or participating in the enforcement of, any like or related union-security agreement or arrangement which has the effect of imposing upon employees, or prospective employees, of employers who utilize the Port of Seattle hiring hall, the requirement of union membership as a condition of employment, unless such arrangement or agreement conforms to the requirements of Section 8 (a) (3) of the Act. (3) In any other manner requiring, directing, or inducing the dispatchers of the Seattle, Washington, hiring hall to discriminate in the granting of dispatch privileges to Albert Crum and Clarence Pur- nell, or any other employee, or prospective employee, because of their failure to acquire and/or retain membership status in the Respondent Unions, or any other labor organization, unless an agreement authoriz- ai In the event 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." INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 301 ing imposition of union membership as a condition of employment be made in accordance with the provisions of Section 8 (a) (3) of the Act. (4) In ,any other maner causing or attempting to cause the employers who utilize the Seattle, Washington, hiring hall, or any of them, or their officers, agents, successors, or assigns, to discriminate in the hire and tenure of employment, or any condition of employment, of any employee, or prospective employee, in violation of Section 8 (a) (3) of the Act. (5) In any other manner restraining or coercing employees or prospective employees of the employers who utilize the Seattle, Wash- ington, hiring hall, in the exercise of the rights guaranteed employees in Section 7 of the Act, except to the extent that such rights may be affected by an agreement (made in accordance with the provisions of Section 8 (a) (3) of the Act) requiring membership in a union as a condition of employment. B. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Jointly and severally, and jointly and severally with the Respondent W. E. W., make Albert Crum and Clarence Purnell whole in the manner specified in this Decision and Order for any loss of pay suffered by them as a result of the discrimination of the Seattle, Washington, hiring hall, against them. (2) Notify the W. E. W., the Port Labor Relations Committee, the Seattle, Washington, hiring hall dispatchers, and the employers who utilize the hiring hall, in writing, and furnish copies of such notices to Crum and Purnell, that the hiring hall dispatchers (a) are not to give force or effect to those provisions of the Coast and Dock Agree- ments authorizing the preferential dispatch of members of the ILWU and Local 19; (b) are not to discriminate in any other manner in the hire and tenure of employment of any applicant for employment through the hiring hall because of his failure to acquire or retain mem- bership status in the ILWU and Local 19; and (c) are to make promptly available to Albert Crum and Clarence Purnell all dispatch privileges of the hiring hall upon request, in accord with such non- discriminatory conditions existing at the time of the discrimination against them, and, in Crum's case, without regard to the "deregistra- tion" action of April 20, 1949. (3) Notify and direct their representatives or agents who are mem- bers of the Seattle Port Labor Relations Committee to take such action as is necessary to restore the name of Albert Crum to the Port registra- tion lists. (4) Post in conspicuous places in the Seattle, Washington, hiring hall, and in their respective business offices, including all places where 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notices to their members are customarily posted, copies of the notice attached hereto and marked "Appendix B." 32 Copies of this notice shall, after being duly signed by the respective officers of the Respond- ent Unions, be posted immediately upon receipt thereof, and main- tained for a period of sixty (60) consecutive days thereafter. Rea- sonable steps shall be taken by the Respondent Unions to insure that said notices are not altered, defaced, or covered by other material. (5) Respectively notify the Regional Director in writing within ten (10) days from the date of this Decision and Order, what steps each has taken to comply therewith. Appendix A . NOTICE TO ALL EMPLOYEES OF MEMBERS OF WATERFRONT EMPLOYERS OF WASHINGTON AND ALL APPLICANTS FOR EMPLOYMENT WHO USE, OR MAY DESIRE To USE, THE SEATTLE, WASHINGTON, HIRING HALL Pursuant to a Decision and Order of the National Labor Relations Board, we hereby notify you that : WE WILL NOT discriminate in the hire and tenure of employment of employees by: (a) maintaining in effect, or participating in any manner in the enforcement of, the union -security provisions of the "Pacific Coast Longshore Agreement" dated December 6, 1948, and of the "Dock Workers Agreement for the Port of Seattle" dated February 26, 1949, which authorize the hiring hall for the Port of Seattle to grant preference in dispatch to members of the ILWU and/or Local 19; or (b) entering into, renewing, or participating in the enforcement of, any like or related agree- ments or arrangements which have the effect of imposing upon the employees or prospective employees of our employer-members, the requirement of union membership as a condition of employ- ment, unless such agreement or arrangement conforms to the requirements of Section 8 (a) (3) of the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees of our employer-members in the exercise of the rights , guaranteed them in Section 7 of the Act, except to the extent that such right may be affected by an agreement made in accordance with the provisions of Section 8 (a) (3) of the Act, requiring membership in a union as a condition of employment. 82 In the event this Order is enforced by 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." INTERNATIONAL'LONGSHOREMEN'S, 'ETC., UNION 303 WE WILL, jointly and severally with the ILWU and Local 19, make Albert Crum and Clarence Purnell whole for any loss of pay suffered by them as a result of the discrimination of the Seattle, Washington, hiring hall against them. WE IIAVE personally notified the Port Labor Relations Com- mittee, and the dispatchers of the Seattle, Washington, hiring hall, in writing, and furnished copies of such notices to Crum and Purnell, that the hiring hall dispatchers : (a) are not to give force or effect to those provisions of the Coast and Dock Agree- ments authorizing the preferential dispatch of members of the ILWU and Local 19; (b) are not to discriminate in any other manner in the hire and tenure of employment of any employee or applicant for employment through the hiring hall because of their failure to acquire or retain membership status in the ILWU or Local 19; and (c) are to make promptly available to Albert Crum and Clarence Purnell all dispatch privileges of the hiring hall upon request, in accord with such nondiscriminatory conditions existing at the time of the discrimination against them, and, in Crum's case, without regard to the "deregistration" action of April 20, 1949. WE HAVE personally notified in writing each and every employer of employees covered by the terms of the Coast and Dock Agree- ments of the terms of this Order and requested each of them to take all steps necessary (including the transmission by each to the hiring hall dispatchers, of a written copy of the directives set forth in the preceding paragraph) to insure that the dis- patchers of the hiring hall will not discriminate against any employee or applicant for employment because of his failure to acquire or retain membership status in the ILWU or Local 19. WE WILL invoke such powers and rights as we may have as to each member of Waterfront Employers of Washington who employs workers covered by the Coast and Dock Agreements, or who utilizes the facilities of the Seattle, Washington, hiring hall, in order to discharge our financial obligations under this Order, and to insure the cooperation of each such employer in effectuating the terms of the Order of the National Labor Relations Board. WATERFRONT EMPLOYERS OF WASHINGTON, Employer. By -------------------------------------------- (Representative ) ( Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix B NOTICE TO ALL EMPLOYEES OF MEMBERS OF WATERFRONT EMPLOYERS OF WASHINGTON, ALL APPLICANTS FOR EMPLOYMENT WHO USE, OR MAY DESIRE TO USE, THE SEATTLE, WASHINGTON, HIRING HALL, ALL OFFICERS, REPRESENTATIVES , AGENTS, AND MEMBERS _OF INTERNA- TIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, AND ITS LOCAL 19 Pursuant to a Decision and Order of the National Labor Relations Board, we hereby notify you that : WE WILL NOT maintain in effect the -provisions of the named agreement described below 33 which authorizes the hiring hall dispatchers to- give preference in dispatch to members of the ILWU or Local 19, or participate in any manner in the enforce- ment of the union-security arrangements of the Coast and Dock Agreements. WE WILL NOT enter into, renew, or agree to, or participate in the enforcement of, any like or related union-security agreement or arrangement which has the effect of imposing upon employees, or prospective employees, of employers who utilize the Seattle, Washington, hiring hall, the requirement of union membership as a condition of employment, unless such arrangement or agree- ment conforms to the requirements of Section 8 (a) (3) of the National Labor Relations Act. WE WILL NOT in any other manner require, direct, or induce the dispatchers of the Seattle, Washington, hiring hall to discriminate in the granting of dispatch privileges to Albert Crum and Clar- ence Purnell, or any other employee, or prospective employee, because of their failure to acquire and/or retain membership status in Local 19 or the ILWU, or any other labor organization, unless an agreement authorizing imposition of union membership as a condition of employment be . made in accordance with the provisions of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner cause, or attempt to cause, the employers who utilize the Seattle, Washington, hiring hall, to discriminate in the hire and tenure of employment, or any con- dition of employment, of any employee, or prospective employee, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees, or prospective employees of the employers who utilize the Seattle, Washington, hiring hall, in the exercise of the rights guaranteed 33 The named agreement in the ILWU's notice shall be the "Pacific Coast Longshore Agreement," dated December 6, 1948, and in Local 19 's notice shall be the "Dock Workers Agreement for the Port of Seattle," dated February 26, 1949. INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 305 employees in Section 7 of the Act, except to the extent that such rights maybe affected'by--an-agreement made in -accordance, with the provisions of Section 8 (a) (3) of the Act, requiring member- ship in a union as a condition of employment. WE wILL jointly and severally, and jointly, and severally with Waterfront Employers of Washington, make Albert Crum and Clarence Purnell whole for any loss of pay suffered by them as a result of the discrimination of the Seattle, Washington, hiring hall against them. WE HAVE personally notified the Waterfront Employers of Washington, the Port Labor Relations Committee, and the hiring hall dispatchers, in writing, and furnished copies of such notices to Albert Orum and Clarence Purnell, that-the hiring hall dis- patchers: (a) are not to give force or effect to those provisions of the Coast and Dock Agreements authorizing the preferential dispatch of members of the ILWU and Local 19; (b) are not to discriminate in any other manner in the hire and tenure of em- ployment of any applicant for employment through the hiring hall because of his failure to acquire or retain membership status in the ILWU or Local 19; and (c) are to make promptly avail- able to Albert Crum and Clarence Purnell all dispatch privileges of the hiring hall upon request, in accord with such nondis- criminatory conditions existing at the time of the discrimination against them and, in Crum's case, without regard to the "deregis- tration" action of April 20, 1949. Our representatives or agents who are members of the Seattle Port Labor Relations Committee have taken such action as is necessary to restore the name of Albert Crum to the Port registration lists. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN 'S UNION2 By --------------------------------------- (Representative) (Title) LOCAL 19, INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, By --------------------------------------- (Representative ) ( Title) Dated --------------------- This notice must remain posted for 60 days and must not be altered, defaced, or covered by any other material. Intermediate Report - STATEMENT OF THE CASE Upon innumerable charges and amended charges filed at various times between February 21, 1949, and December 1, 1950, by Clarence Purnell and Albert G. 306 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD Crum, individuals, hereinafter referred to as the Complainants, the General Counsel of the National Labor Relations Board' by the Regional Director for the Nineteenth Region (Seattle, Washington), issued a consolidated complaint dated December 1, 1950, against International Longshbremen's and Warehouse- men's Union, hereinafter referred to as ILWU; Local -19, International Long- shoremen's and Warehousemen's Union, hereinafter referred to as Local 19; Waterfront Employers of Washington and its Employer-Members, hereinafter referred to collectively as W. E. W.; and Luckenbach Steamship Company, Inc., AlaSka Steamship Company, Rothschild-International Stevedoring Company, Alaska Terminal and Stevedoring 'Co., and Tait Stevedoring Co., Inc., herein- after referred to as the Employer Respondents ; alleging that the Employer Respondents and Respondent W. E. W. had engaged in, and were engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3), and that the Respondent Unions had engaged in, and were engaging in, unfair labor practices affecting commerce within the meaning of Section (8) (b) (2) and (b) (1) (A) and Section 2 (6) and (7) of the Labor Man- agement Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint, the numerous charges and amended charges, and notice of hearing were duly served upon the W. E. W., Employer Respondents, ILWWWU, and Local 19. With respect to the alleged unfair labor practices against the W. E. W. and the Employer Respondents, the complaint alleged, in substance, that : (1) By entering into two contracts known as the Pacific Coast Longshore Agreement and Dock Workers' Agreement for Port of Seattle, respectively, with the Respondent Unions containing allegedly illegal preference in employment clauses and by acqu-escing in and assenting to a hiring hall arrangement whereby the Respondent Unions were placed in a position to, and did, actively enforce the preferential employment provisions of said contracts by refusing to dispatch the individual Complainants, all the Employer Respondents and W. E. W. engaged in unfair labor practices within the meaning of Section 8 (a) (1) and' (3) of the Act, and (2) by entering into the same contracts and by contributing financial support to a central hiring ball operated discriminatorily in favor of members of the Union, Respondent W. B. W. and the Employer Respondents violated Section 8 (a) (2) of the Act. With respect to the unfair labor practices charged against the Respondent Unions, the complaint alleged, in substance, that: (1) By entering into the Dock Workers' Agreement for Port -of Seattle containing unlawful preferential employ- ment provisions and by actively participating in the enforcement of that provision and -a similar provision in the Pacific Coast Longshore Agreement by refusing to dispatch Clarence Purnell and Albert G. Crum, the Respondent Unions, and each of them, engaged in, and are engaging in, unfair labor practices within the mean- ing of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. Thereafter, each of the afore-mentioned Respondents filed answers admitting certain allegations of the complaint but denying that they, or any of them, had engaged in, or were engaging in, any unfair labor practices. Pursuant to notice, a hearing was held in Seattle, Washington, on December 18, 1950,2 and from January 3 to and including January 9, 1951, before the under- signed Trial Examiner duly designated by the Chief Trial Examiner. The Gen- eral Counsel and each of the Respondents were represented by counsel and 2 Hereinafter referred to as General Counsel and the Board respectively. The term General Counsel will also include the counsel for the General Counsel appearing at the hearing. 2 On this date the hearing was recessed until -January 3, 1951, because of the excusable inability of ILWU to be represented at that time. INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 307 acts ely participated in the hearing; Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the hearing each of- the Respond- ents,renewed, numerous motions previously denied to dismiss the complaint for various reasons. These motions were taken under advisement and are disposed of herein. The parties waived oral argument at the hearing but briefs have been received, and considered, from all parties except Local 19. After the close of the hearing, the General Counsel and counsel for the various Employer Respondents each moved to have the transcript corrected. There hav- ing been no objections to the proposed corrections, the undersigned hereby orders the proposed corrections of the General Counsel marked as TX Exhibit 2 and those of Employer Respondents' counsel marked as TX Exhibit 3, admitted in evidence and the transcript corrected in accordance therewith. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF W. E. W. AND ITS EMPLOYER-MEMBERS ; AND OF THE RESPONDENT EMPLOYERS Waterfront Employers of Washington, W. E. W., is a nonprofit corporation under the laws of the State of Washington, having its principal office in Seattle, Washington. Firms directly or indirectly engaged as employers of labor in com- mercial transportation or handling of goods by or over water, rail, truck, docks, or warehouses are members of W. E. W. One of the purposes for which W. E. W. exists is to represent its Employer-Members in collective bargaining relations with labor organizations representing longshoremen and other shore employees. W. E, W., at all times material here, has had as Employer-Members, among others, Alaska Steamship Company, Alaska Terminal and Stevedoring Co., Luckenbach Steamship Company, Inc., and Rothschild-International Stevedoring Company Employer-Members of W. E. W. either operate oceangoing vessels engaged in the transportation of passengers and freight or perform stevedoring services for companies operating such vessels. During the 12-month period ending November 30, 1950, the Employer-Members of W. E. W. operating oceangoing vessels jointly realized from the transportation of freight and passengers revenue in excess of $1,000,000 of which more than 60 percent was realized from shipments between ports in one State of the United States and ports in another State of the United States or in foreign countries. During the same period the Employer-Members of W. E. W., furnishing stevedoring services for steamship companies , performed services valued in excess of $50,000 for companies operating vessels in interstate and foreign commerce. In its answer W. E. W. denied that it was an employer within the meaning of Section 2 (2) of the Act. However, among other things, the evidence established that W. E. W. negotiated collective bargaining agreements for its members, on occasions allocated the employees among the various member-companies, acted as the paymaster, and on the Federal withholding tax statements listed itself as the employer of the longshoremen. Therefore the undersigned finds that W. E. W. is the employer within the meaning of the Act. Alaska Steamship Company, hereinafter referred to as Alaska Steam, is a Washington corporation having its principal office in Seattle, Washington, where it is engaged in the operation of vessels between ports in the United States and ports in Alaska or between ports along the Pacific Coast of the United States. During the 12-month period ending November 30, 1950, Alaska Steam has realized 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the transportation of freight and passengers in interstate commerce revenue in excess of,$100,000. Alaska Terminal and Stevedoring Co., hereinafter called Alaska Terminal, is a Washington corporation having its principal office in the city of Seattle, Washington, where it is engaged in furnishing stevedoring services to companies engaged in operating vessels in interstate and foreign commerce . During the 12-month period ending November 30, 1950, Alaska Terminal furnished services valued in excess of $50,000 to employers operating vessels in interstate and foreign commerce. Luckenbach Steamship Company, Inc., hereinafter called Luckenbach, is a Delaware corporation having its principal office in New York City. It is engaged in the operation of common carrier vessels between ports in the State of Washington and ports in other States of the United States and in foreign countries. During the 12-month period ending November 30, 1950, -Luckenbach realized from the transportation of freight and passengers in interstate and foreign commerce revenue in excess of $100,000. Rothschild-International Stevedoring Company, hereinafter called Rothschild, Is a Washington corporation having its principal office in Seattle, Washington, where it is engaged in furnishing stevedoring services to companies engaged in operating vessels in interstate and foreign commerce. During the 12-month period ending November 30, 1950, Rothschild furnished services valued in excess of $50,000 to employers operating vessels in interstate and foreign commerce. Tait Stevedoring Co., Inc., hereinafter called Tait,'is a Washington corporation having its principal office in Seattle, Washington, where it is engaged in furnishing stevedoring services to companies engaged in operating vessels in interstate and foreign commerce. During the 12-month period ending November 30, 1950, Tait furnished services valued in excess of $50,000 to employers operating vessels in interstate and foreign commerce. The undersigned finds that each of the Respondents above mentioned is engaged in interstate commerce within the meaning of the Act. H. THE RESPONDENT LABOR ORGANIZATIONS International Longshoremen's and Warehousemen's Union and Local 19, International Longshoremen's and Warehousemen's Union are, and at all times material herein have been, labor organiaztions admitting to membership longshoremen employed by the other Respondents. Local 19 is affiliated vi ith ILWU. The undersigned finds that each of these Respondent Unions is a labor organ- ization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The execution of the agreements The 96-day water-front strike in 1948 on the Pacific Coast ended shortly after December 6, 1948, when the various parties involved reached agreements among themselves. One of these agreements known as the Pacific Coast Longshore Agreement, hereinafter referred to as the Coast Agreement, was between ILWU and Waterfront Employers Association of the Pacific Coast, subsequently succeeded by Pacific Maritime Association, hereinafter referred to as PMA, on behalf of various water-front employers' associations including Waterfront Employers of Washington. This agreement bears date of December 6, 1948. when by its own terms it became effective. But the parties did not formally INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 309 sign it until some subsequent date; although they initialed it on December 17, and have acted in accordance with its terms ever since the return to work. Although W. E. W. had authorized the negotiation of this contract, it did not participate therein. After its negotiation, W. E. W. ratified it. The preamble of the Coast Agreement reads as follows : THIS AGREEMENT , dated December 6, 1948, by and between the Waterfront Employers Association of the Pacific Coast, Waterfront Employers Associ- ation of California, Waterfront Employers of Oregon and Columbia River, Waterfront Employers of Washington, hereinafter designated as the Employers on behalf of their respective members, and the International Longshoremen's and Warehousemen's Union, hereinafter designated as the Union. Thereafter follow multitudinous provisions covering the range of labor relations but, fortunately, only a few of these provisions are of interest to us here. Section 7 of the Coast Agreement provides for the establishment of hiring halls in each port, their joint operation and maintenance through a Port Labor Relations Committee composed of an equal number of representatives of the local Employers Association and the "Union," and the selection of the chief dispatcher by a vote of the "Union," such chief dispatcher to qualify under standards set by the Port Labor Relations Committee and to work under the rules and regulations promulgated for that purpose by said committee. The agreement also provides that "the Union" and the local Employer Association are to defray the expenses of the operation and maintenance of these halls equally. Subsection (d) of section 7, however, provides as follows : (d) Preference Preference of employment shall be given to members of the International Longshoremen's and Warehousemen's Union whenever available. Prefer- ence applies both in making additions to the registration list and in dis- patching, men to jobs This section shall not deprive the Employers' members of the Labor Relations Committee of the right to object to unsatisfactory men (giving reasons therefor) in making additions' to the registration list, and shall not interfere with the making of appropriate dispatching rules. This Coast Agreement was supplemented by an agreement known as the "Dock Workers' Agreement for Port of Seattle," hereinafter referred to as the Dock Agreement, between W. E. W. and Local 19 which was executed by these parties on February 26, 1948, and has been at all times thereafter in full force and effect" This Dock Agreement also provides for the establishment of a central hiring hall front which all dock workers are to be dispatched to work opportunities in almost identical language to that of section 7 of the Coast Agreement relating to the dispatch of longshoremen. This hall likewise was to be jointly operated, maintained , and paid for by the parties and supervised by the Port Labor Rela- tions -JCommittee with a dispatcher similarly selected by Local 19, subject to standards provided by the Port Labor Relations Committee. Section 8 (c) of this Dock Agreement provides as follows : This date does not appear in the instant record. " Roughly the line between longshore and dock work is that longshore work consists of the movement of cargo between ship and dock while dock work constitutes the movement to and from the dock either preparatory to loading cargo on the ship or for delivery to the consignee. 998666-vol. 98-53-21 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Preference Preference of employment shall be given to members of the Union when- ever available. Preference applies both in making additions to the regis- tration list and in dispatching men to jobs. This Section shall not deprive the Employers' members of the Port Labor Relations Committee of the right to object to unsatisfactory men (giving reasons therefor ) in making additions to the registration list, and shall not interfere with the making of appro- priate dispatching rules. In actual fact in the Port of Seattle, at least, all dock workers and longshore- men were, and are, being dispatched from the same hiring hall. by the same dispatcher. The Port Labor Relations Committee in Seattle was and is composed of an equal number of representatives of W. E. W. and Local 19, and the cost of the maintenance and operation of the hall is paid for by equal contributions from W. E. W. and from Local 19.6 B. Conclusions as to the execution and enforcement 1. The 6-month limitation ( Section 10 (b) ) All the Respondents, both Employer and Union, have affirmatively pleaded the 6-month limitation period of the Act as a defense to the charges filed in the instant proceeding. Although the undersigned summarily dismissed the motions based upon this plea at the hearing, he is now convinced that such a blanket, ruling was erroneous in part and so the legal issues raised thereby must be discussed at some length here. This will lead us to an intriguing, but unfortu- nately almost fruitless , discussion of technicalities. The portions of Section 10 (b) of the Act which are pertinent provide as follows : Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board . . . shall have power to issue and cause to be served upon such person a complaint . . . Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, .. . 6 On the Employers' side the expenses of the hiring hall are paid for as follows : PMA now collects from its member-companies a sum of money determined both by the tonnage and the man -hour bases and deposits a part of that fund to the account of W. E. W. which in turn deposits the Employers' share of the expense to the account of the Port Labor Relations Committee which, in fact, pays the bills. PMA not having been in existence at the time of the negotiation of the Coast contract is, therefore , not a signatory to that agreement but has succeeded to the Interest of Waterfront Employers of the Pacific Coast In that agreement . In their brief W. E W. and Respondent Employers indulge in a highly technical argument based upon the fact that , as the funds ultimately originate from PMA, W. E W is not responsible therefor To the undersigned this argument is more hypertechnical than factual . Although Darrell Cornell , simultaneously PMA man- ager for Seattle and president of W. E W ( and an honest witness), testified that he could determine at each moment of his working day from whom he was drawing his salary at that particular moment, the evidence Indicated that PMA and W. E W. were actually different divisions of the same general organization. The employer representatives on the Port Labor Relations Committee were selected by W. E W. Essentially the difference between PMA and W E. W. seems to be that PMA does the negotiating for the Employers while W . E. W. acts generally as the paymaster for the various employers of longshoremen, both members and nonmembers of W E W. W. E. W also does some representation of employers in negotiations with Local 19. However , this seems to be a differentiation without a real difference. The undersigned cannot agree with this contention made by \V E W. INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 311 a. The Employers In short, the complaint against the numerous Employer Respondents alleged that they had committed unfair labor practices by (1) "entering into" the Coast and Dock Agreements containing illegal preference-in-employment clauses and (2) engaging in or "acquiescing" in a "practice" whereby the Unions were permitted to, by means of the hiring hall arrangements, and did enforce the illegal terms of those agreements by discriminatorily refusing to dispatch Crum on January 29, 1949, and Purnell on February 3, 1949. In addition the complaint alleged a violation by these Respondents of Section 8 (a) (2) by giving the Unions financial assistance through their 50 percent contribution to the operation and maintenance of the hiring hall. It must be recalled that Crum filed his original charge against W. E. W. on June 14, 1949, and Purnell his original charge against W. E. W., Luckenbach, Alaska Steam, and Rothschild on June 22, 1949. All these charges claimed discrimination based upon the hiring hall and the illegal Coast Agreement. The other original and amended charges will be considered subsequently. In order for a complaint to issue legally under the proviso of Section 10 (b) the alleged unfair labor practice on which the complaint is founded must have occurred 6 months or less prior to the filing and serving of the charge. Thus the unfair labor practice as to Crum must have occurred on or after December 14, 1948, and as to Purnell on or after December 22, 1948. Obviously the consolidated complaint herein was based upon (1) the execu- tion of the Coast and of the Dock Agreements and (2) the enforcement of those allegedly illegal documents. It now becomes necessary to determine when, if ever, the alleged unfair labor practices occurred. The execution of an illegal agreement is a completed unfair labor practice, if at all, upon the completion of the final act consummating that agreement. In the usual case that act will be the physical act of the parties in signing the agreement. However, even a determination of that date as it relates to the Coast Agreement is fraught with difficulty here because the evidence in this case shows that the parties had negotiated and reached agreement "in principle" about November 25, 1948, that the Agreement was in full force and effect, but unsigned, upon the return of the longshoremen to work on and after December 6, 1948, that the Agreement itself bears date of December 6, 1948, but that the Agreement was not executed or initialed for and on behalf of the parties, of whom W. E. W. was one, until December 17, 1948, and even then was not intended to be the complete agreement. However, interpreting the execution of the Coast Agreement in the light most favorable to the Complainants here, the under- signed finds that the Coast Agreement was "entered into" or executed on December 17, 1948, the day on which it was initialed, and that the unfair labor practice based upon the execution of the Coast Agreement was completed on that day. Thus, under the phraseology of Section 10 (b) of the Act, the complaint based upon the execution of the Coast Agreement could legally issue against W. E W. in the case of Crum because his charge was filed just within the 6-month period but could not legally issue in the case of Purnell because this unfair labor practice had occurred a few days more than the allowable 6 months prior to the date on which he filed his charges against the Employer Respondents. The right to issue a complaint based upon the enforcement of an illegal agree- ment is another thing The enforcement of a contract, unlike its execution, is a continuous and continuing act. The unfair labor practice based upon enforce- ment does not come into being until that agreement is enforced as to the par- 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ticular complainant. Thus it was not until January 29, 1949, according to the allegation in the complaint ( or January 27, 1949, according to the evidence introduced ) that the unfair labor practice based upon enforcement of the Coast Agreement came into being, if at all, as to Crum and until February 3, 1949, as to Purnell. In neither case, therefore , does the 6-month period bar the issuance of the complaint based upon the enforcement of the Coast Agreement. In addition, the Employer Respondents argue that , as no charge has been filed specifically mentioning the execution or enforcement of the Dock Agreement until September 21, 1949, more than 6 months after the execution of that docu- ment on February 26, 1949, no complaint based upon either execution or enforce- ment of the Dock Agreement may legally issue because of Section 10 (b) of the Act. On September 21, 1949, Purnell first mentioned the Dock Agreement in connection with his case when he "amended " his charges against W. E. W., Luckenbach , Alaska Steam, and Rothschild and when he filed original charges against Alaska Terminal and Tait. It was not until December 1, 1950, that Crum "amended" his charges against W. E. W. to mention the Dock Agreement specifically for the first time. In filing his original charges against Alaska Terminal and Tait on September 21, 1949, Purnell was creating a new cause of action-a new liability against a new Respondent-for an unfair labor practice which , if it occurred, took place more than 6 months before. These original charges against Alaska Terminal and Tait were based upon the same alleged unfair labor practices as set forth in his previous charges against the other Respondents , namely, the discrimina- tory execution and enforcement of the Coast Agreement as well as the dis- criminatory execution and enforcement of the Dock Agreement. All these matters having become completed unfair labor practices more than 6 months before, no complaint could legally issue based thereon against these new Re- spondents. Consequently , these were stale claims made without notice having been given to these Respondents within the time required by the provisions of Section 10 (b) and thus of the type intended to be barred by that section. The undersigned will accordingly dismiss the complaint as to Respondents Alaska Terminal and Tait. It is to be understood that this dismissal applies only to the individual liability of these Respondents and not to any liability which may arise as to them in their capacity as Employer -Members of W. E. W. Regarding the amended charges filed by Purnell on September 21, 1949, against W. E. W., Alaska Steam, Luckenbach, and Rothschild, the argument above made does not hold because Purnell by amending his charges against these Respondents was not creating any new cause of action or any new liability. The amended charges filed against these last named Employer Respondents were in fact amendments of previously made claims of liability merely setting forth additional bases upon which the original claims of discrimination were grounded. No new cause of action or liability was set forth for the first time in these amended charges. These Respondents had previously been notified of the same claim of liability within the period required by the statute and were merely being given the benefit of additional facts relating to the same cause of action. The purposes of Section 10 (b) had been satisfied when the original charges were filed and served on June 22, 1949. To sustain the Respondents' contention here would serve no useful purpose except to deprive a discharged employee of his rights under the Act because of his inability to plead his cause in a charge with legal exactitude and to reward Respondents for fraudulent dealing and ability at concealment. The purpose of the charge is twofold : to set in motion the in- vestigatory functions of the Board and to advise Respondents promptly of any INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 313 claim of discrimination so as to eliminate the bringing of stale claims which Respondents cannot defend. An original charge may be amended to include claims of a similar type and character closely related to those made in the original charge. Such an amendment is not barred by the limitation mentioned in Section 10 (b) especially where, as here, the claim is the same in substance although additional facts or a different foundation may be added . The undersigned , there- fore, holds that Purnell's amended charges against W. E. W., Luckenbach , Alaska Steam, and Rothschild as well as Crum's amended charge against W. E. W. were not barred by Section 10 (b) of the Act as they were in fact amendments of a claim or cause of action of which the Respondents originally had notice within the statutory period required by Section 10 (b). The Employers appear to argue that the inclusion of any matter barred by Section 10 (b) in a complaint containing other matter not so barred thereby requires the dismissal of the complaint in its entirety. Such is not the law. The undersigned can agree with the argument of the Employers on the Section 10 (b) issue only so far as indicated above. Now, having decided the limitations point adversely to these Respondents, the undersigned will nevertheless dismiss the complaint as to Respondents Alaska Steam and Luckenbach on their merits for the reason that the evidence shows without contradiction that these two companies had not employed longshoremen since July 17, 1947, and September 1, 1948, respectively , but this dismissal, like the previous dismissals , Is not to affect the liability , if any, of these Respondents as Employer-Members of W. E. W. At the hearing the undersigned considered the inclusion of the individual Employer Respondents as exceedingly strange as each of them was apparently' an Employer-Member of W. E. W. Apparently the pleader included these Em- ployers as individual Respondents on the theory that Purnell had made applica- tion for employment with, and had been discriminatorily refused employment by, each of these Employer respondents. The evidence adduced on this point at the hearing-fell far short of that- required . The- testimony as to the so-called appli- cation, the refusal , and the agent of the Respondents involved was so highly indefinite , abstract, and vague as to be worthless . Because of the total in- adequacy of the evidence adduced on that theory , the undersigned will dismiss the complaint as to all the Employer Respondents except W. E. W. in their indi- vidual capacities but not as to any liability which may accrue to them as Em- ployer-Members of W. E. W. W. E. W. also argues that Crum 's charge filed on June 14, 1949, gave it no notice that the Coast Agreement was to be called in issue and that his subse- quent amendment in December 1950 was the first notice it had that the Coast Agreement was an issue . This highly technical argument is without merit. b. The 6-month limitation-Unions Both ILWU and Local 19 moved for the dismissal of the complaint as to each based upon Section 10 (b) of the Act. On February 21, 1949, Purnell filed and served his original charge against Local 19 alone, and on June 22 , 1949, "amended" this charge by adding, among other things, ILWU as a party respondent. On the other hand, by some queer quirk, Crum filed his original charge on June 14, 1949, against ILWU alone, which he, in turn , "amended" on December 1, 1950, by adding Local 19 as a party respondent. By each of these so-called "amendments ," the Complainants attempted to add an entirely new party respondent thereby creating a new cause of action and a 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD new liability . Since the Coronado Coal cases,' it has been well-settled law that the mere affiliation of two labor organizations is an insufficient base upon which to predicate liability , even as it is equally clear from the congressional debates on the Act that liability of the organization is not created from mere member- ship of the actor in that organization . Here the evidence is clear that , although affiliated with ILWU, Local 19 is an autonomous and separate distinct entity from ILWU. Thus, in the charge of Crum, the so-called amendment of December 1, 1950, is in fact not an amendment because of the fact that it creates a new cause of action, a new liability created by the addition of a new and distinct party and thus. in truth and in fact , is an original charge as to that new party, Local 19. But, as to new material added by this amendment relating to the old original cause of action against ILWU, this amended charge is actually an amendment. As this so-called amended Charge of December 1, 1950, is in fact and original charge against Local 19, Section 10 (b), the 6-month limitation, is applicable thereto barring the issuance of a complaint based on any unfair labor practice occurring beyond the 6-month period prior to the filing and service of the charge. Clearly, therefore , as to Local 19, the complaint based upon Crum's charges of December 1, 1950, founded upon the execution of both the Coast Agreement and the Dock Agreement as well as the discriminatory enforcement as to him occur- ring on January. 29, 1949, is barred by the limitation of the statutory provision. As to ILWU, however, the complaint being based upon a charge originally filed within the statutory period after the commission of the unfair labor practice is proper, no new cause of action having been added by the amendment. So, in accordance with the above, the undersigned will grant the motion of Local 19 and dismiss the complaint as to it insofar as it relates to the allegations of discrimination against Crum. On February 21, 1949, Purnell filed his original charge against Local 19 alone, specifically mentioning only the Coast Agreement and the hiring hall . The com- plaint based upon this charge is not barred by Section 10 (b) either as to the execution or enforcement of the Coast Agreement . However, due to the eccen- tricities of the pleading herein, the execution of the Coast Agreement is not alleged to have been an unfair labor practice as to the Unions so that there can be no finding that such execution was an unfair labor practice . On September 21, 1949, Purnell purported to amend this charge by adding ILWU as a party respondent. For the reasons discussed above and the fact that the alleged unfair labor practices of ILWU referred to therein had occurred more than 6 months prior to the filing of this "amended" charge, the complaint against ILWU on the charges by Purnell is barred by Section 10 (b) of the Act. The undersigned will dismiss the allegations of the complaint relating to the alleged unfair labor practices against Purnell so far as Respondent ILWU is involved. These Respondents also contend that the inclusion of the Dock Agreement as an unfair labor practice in these so-called amended charges is also barred even as against the party originally named as the Respondent . For the reasons given above in the discussion of the same contention made by the Employers, the undersigned cannot agree. Due to this extraordinary method of cross-filing of these charges by the two complainants, neither Respondent Union can be finally dismissed from this case nor can any of the claimed unfair labor practices be eliminated from the com- plaint farther than the undersigned has indicated above. 256 U. S. 344 and 268 U. S 295. INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 315 3. Violations-Employers a. Preference in employment, execution An employer who grants any preference of employment based 'upon union membership in a collective bargaining agreement with the authorized bargaining agent of the employees in an appropriate unit which is more restrictive than that permitted in the proviso of Section 8 (a) (3) ° or without the holding of an election as provided in Section 9 (e) thus complying with, the so-called procedural safeguards of Section 9 (e) per se violates Section 8 (a) (1) of the Act. See Pacific Maritime Association, 89 NLRB 1278. The views expressed by the under- signed in the Intermediate Report in that case appear to be equally applicable to this one. In the instant case there can be no question but that the W. E. W. violated both the substantive and procedural requirements of the Act in granting the Unions the preference-of-employment clauses of the Coast as well as the Dock Agreement and thus violated Section 8 (a) (1). As this preferential treatment granted on the basis of union membership creates a discriminatory employment practice thus encouraging union member- ship, the execution of these Coast and Dock Agreements also violates Section 8 (a) (3) of the Act. b. Financial assistance The complaint also alleges that W. E. W. violated Section 8 (a) (2) by giving financial assistance to ILWU through the payment by the Employers of 50 percent of the cost of operating and maintaining the hiring hall. The Employers engaged in hypertechnicalities in the argument advanced in their brief when they argue that, as the money used to defray this 50 percent of the cost of the hiring hall originated from PMA through an assessment upon its members based both on the tonnage and the man-hours of labor, W. E. W. has not contributed and, therefore, has not violated the Act. True, the money comes from PMA originally but the facts show that PMA deposits this money to the account of W. E. W. who, in turn, deposits the Employers' share of the hiring hall costs to the account of the Port Labor Relations Committee which, in turn, defrays the expenses of the hiring hall and the dispatchers therefrom. In truth and in fact, therefore, the employer contribution is made by W. E. W. But the facts also prove that this W. E. W. contribution is not made to a labor organization but to a separate entity composed of representatives of both W. E. W. and the Union. It can hardly be said that this contribution is a contribution made to a labor organization. Conceivably it might be argued that the Unions secure some benefit from the existence of the hiring hall and, therefore, this contribution amounts to indirect financial support and benefit to a labor organization. This same argument could just as validly be made, and with about as much sense, regarding the wages paid by an employer to any union man for his labor, a part of which goes to pay his union dues. To have any modicum of validity this argument must be based upon the assumption that the unions are the only organizations benefiting from the hiring hall. This assumption is not based on fact. The hiring hall practice is also beneficial to I "Provided, That nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined In section 8 (a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment . . . and (ii) If, following the most recent election held as provided In section 9 (e) the Board shall have certified that at least a majority of the employees eligible to vote In such election have voted to authorize such labor organization to make such an agreement : . . . 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employers. The Employer-Members of PMA and W. E. W. secure a definite grid pro quo for their contribution to the hiring hall totally unrelated to any attempt to dominate or interfere with ILWU or Local 19. For anyone with-any reading knowledge of Pacific Coast waterfront history, past or present, to even suggest that PMA or W. E W. is dominating or interfering with ILWU or Local 19 by these payments to the support of the hall or that ILWU or Local 19 are being dominated or interfered with thereby is being so completely unrealistic as to be laughable. The contributions by W. E. W. are being made to an inde- pendent body, not a labor organization as defined by the Act, for a quid pro quo completely independent of any attempt to dominate or interfere with any labor organization. Theoretically, but again completely unrealistically, it might be said that the execution of the Coast and the Dock Agreements with their illegal preference clauses amounts to a contribution of "other support" to the Union. Nothing, however, is to be gained by such an indirect, technical violation of the Act. The undersigned will, therefore, recommend that the allegation that W. E. W. has violated Section 8 (a) (2) of the Act be dismissed. 4. Violations-Unions a. Preference in employment, execution In the Hiring Hall cases, Trial Examiner Rogosin held correctly, in the esti- mation of the undersigned, and the Board sustained him, that the execution and enforcement of the preferential employment clause in the Coast Agreement by ILWU was a violation of Section 8 (b) (2). However, as regards the liability of the Unions in the instant case, the question of the execution of the Coast Agreement is not at issue here as not so pleaded in the complaint. But the Hiring Hall case, infra, is authority for the proposi- tion that the execution and enforcement of a contract containing an illegal pref- erential employment clause such as contained in the Dock Agreement is a violation of Section 8 (b) (2) by the Union so executing the agreement. Until the very recent (February 8, 1951) decision of the Board in the Red Star Express case,' it has been well-settled law that Section 8 (b) (1) (A) was directed against the use of physical violence and coercion by a union. Although the argument and authorities cited in the Intermediate Report in that case hardly seem to justify the overturning of that established law, the Board in that case held that the mere execution (without the element of enforcement) by a union of a contract containing illegal union-security clauses violates Section 8 (b) (1) (A) also. The undersigned, being bound by the new Board policy as expressed in the Red Star Express case, therefore, finds that by the mere execution of the Dock Agreement with its illegal preference-in-employment clause, Local 19 violated Section 8 (b) (2) and 8 (b) (1) (A). As ILWU is not a signatory to the Dock Agreement, the undersigned will, therefore, recommend that the complaint so far as it relates to the execution of the Dock Agreement be dismissed as to ILWU. Exactly what specific charges of illegality-other than the preferential employ- ment clause-the pleader intended to encompass in his oft-repeated phrase "a practice wherein [the Unions] have been permitted to exercise control over the selection of persons dispatched or to be dispatched from the central hiring hall" in the Port of Seattle is not clean from the pleadings, the proof, nor the brief. 8 93 NLRB 127. INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 317 In the first of this series of cases against ILWU, being the famous "Hiring Hall" case, 90 NLRB 1021, the General Counsel in that case specifically attacked the legality of the hiring hall provided for in the Coast Agreement on a number of specific grounds. Although the Board failed to pass upon the legality of these various provisions, Trial Examiner Irving Rogosin, in his Intermediate Report in that case, succinctly, and in the opinion of the undersigned correctly, made findings in that respect as follows, which the undersigned hereby adopts and extends to cover the contentions to the Dock as well as to the Coast Agreement : It has been found that the hiring hall, under the joint control and super- vision, of employer and union representatives, as a device for recruiting, hiring, and dispatching employees, is not intrinsically violative of the Act. Similarly, it has been found that maintenance of a roster or registration list of qualified employees, which employers agree to use in dispatching employees according to a rotary system, without regard to union membership or affilia- tion, is equally compatible with the Act. As a corollary, agreement by em- ployers to permit the employees' exclusive bargaining agent to participate in determinations regarding additions to or removals from the registration list, insofar as such determinations are not influenced by considerations of union membership or affiliation, does not, per se, conflict with the Act. So, too, delegation by the employers to the duly recognized bargaining representative, of the right to select dispatchers, subject to control and supervision of a joint employer-union committee, under circumstances and subject to quali- fications already mentioned, does not contravene the provisions of the Act. On the other hand, it has been found that provision for preference of em- ployment based on union membership is clearly proscribed by the Act. The undersigned agrees that a hiring hall can exist legally under the Act- but not with a preferential employment clause such as the Coast and Dock Agreements include. The undersigned, however, believing that any discrimination in the enforce- ment of a contract is subject to proof as in any other case, must specifically reject the following subsidiary findings made by the Trial Examiner in the Hiring Hall ease : It is reasonable to infer, and the undersigned infers and finds, that the Respondents [Unions] contemplated that, even without union preference, the hiring hall provisions, if continued, would be administered and enforced in the future so as to discriminate in favor of members of the Union and against non-members, in violation of the Act. This type of alleged discrimination, to wit, in the enforcement of the preference- in-employment provisions, will be treated in the next section of this Report. C. The enforcement of the Agreements 1. Albert G. Crum Finally we come to the nub of this case. Albert G. Crum commenced working on the Seattle water front in April 1936, became both a registered longshoreman and a member of Local 19 in 1939. Dur- ing the larger portion of his work upon the water front, Crum has been a "gang" man, i. e., a regular member of a permanent gang which is dispatched as a unit and works as a unit whenever so dispatched. In Seattle, all dispatching of longshoremen is done from the hiring hall which is operated and maintained jointly by Local 19 and W. E. W., as provided in the contracts under discussion above. The actual operations of the hall are under 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the supervision and direction of the, Port Labor Relations Committee, composed of an equal number of representatives from Local 19 and W. E. W. Although the chief dispatcher is elected by Local 19, he must qualify under standards set up by the Port Labor Relations Committee and is thereafter, as are all the other employees, the employee of and subject to the direction of the Port Labor Re- lations Committee, which pays all salaries, including that of the chief dispatcher, and the hall expenses from funds provided equally by Local 19 and W. E. W. The hall and its employees operate under rules and regulations promulgated by the Port Labor Relations Committee. The actual dispatching is done by the chief dispatcher and his assistant from various boards which contain the names of all the registered longshoremen of the port listed in order. There are two such boards : One called the "gang" board on which the regular gangs are listed, and another called the "plug" board where the individual longshoremen are listed and from which they are dispatched. The gangs and the individual longshoremen are each dispatched in rotation from their individual boards. Members of gangs are not required to "plug in," i. e., indicate their availability for work opportunities, but are privileged to telephone the hall to determine whether or not their gang has been dispatched.' The individual longshoreman, however, is required to "plug in" personally on the board each morning to indicate his availability and, as his name is called over the loudspeaker when his name comes up in rotation, he must report to the dispatcher to receive his work assignment. The dispatching is done in rotation in order that the earnings of the individual longshoremen shall be approximately equal. In December 1948, following the water-front strike of September to December 6 of that year, Crum was called before the executive board of Local 19 on a charge of failing to stand his share of the picket duty during the strike. The executive board found him guilty and assessed a large fine against him. The president of Local 19 told Crum that his name "will be taken off the work list from this date on until the fine is paid." The day following the meeting of the executive board, Crum went to the office of the secretary of Local 19, Bill Clark, and raised the question with him of his right to work for 30 days as permitted by the constitution regardless of his failure to pay the fine. While they were talking in the office, Bill Gettings,'ILWU Seattle representative, walked in, was told of the constitutional objection raised, and agreed with Crum's interpretation thereof and said : "Yes, the boys have got that right [to work for 30 days before having to pay the fine]-you call Bill-and tell him not to bug a those men for 30 days." Gettings then told Crum to go back to work with his old gang for 30 days.1° Crum thereupon continued to be dispatched to work as usual. He was working on January 27, 1949, on an Alaska Steamship boat when this work was unexpect- edly terminated for some reason and all the longshoremen working thereon were laid off. As was customary with gang men, Crum telephoned the hall the next few days to find out if his gang had been dispatched. For several days Crum was told that his gang had not been dispatched-which was not unusual. Finally one day after the expiration of the 30-day period when he called the dispatcher's office, he was told : "Crum, there is no need of your calling up any more. There is a bug behind your name, and you won't be dispatched with your gang until the fine is paid." A "bug" is a notification of unpaid dues, fines, etc., which is placed upon the board at the hiring hall opposite the name of the delinquent longshoreman. 10 This is the only evidence of any participation by ILWU in the enforcement of the contracts. INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 319 Sine, that time Crum has not been dispatched, nor has he telephoned to the hall, nor has the attempted to plug in on the board to denote his availability for work. On March 9, 1949, Local 19 and W. E. W. entered into an agreement referred to as "Working and Dispatching Rules for the Port of Seattle." By its preamble, this agreement was made a part of the coastwise Longshore Agreement of Decem- ber 17, 1948. Rule No. 17 of these rules provides as follows : "No man is to be dispatched for work when there is a penalty against him " A few days later, Crum visited Darrell Cornell and asked if W. E. W. could do something about having him reinstated in good standing with Local 19. Cornell promised to do whatever he could for Crum if his name ever came up before the Port Labor Relations Committee after telling Crum that there was nothing against him in the W. E. W. files. At some other indefinite time Crum inquired of the "superintendent or a dock foreman or something" for Alaska Steam" whether Crum "could work for him," "Is there anything against me?" "Will you give me a job here?" The superin- tendent said that the only way he could give Crum a job was through dispatch from the hiring hall. Crum asked another shipping man if he would sign a statement for him to the effect that his company would hire him if sent out by the hiring hall. This individual, whose position and company was highly indefinite, said that he would. This statement was not produced at the hearing Crum made the same inquiry of several other representatives of the other shipping companies and received much the same reply from each. On April 20, 1949, upon a motion of the representatives of Local 19, the Port Labor Relations Committee canceled Crum's registration as a longshoreman for the Port of Seattle on the ground that he was a mere casual worker on the water front. This motion and decision were made in accordance with the established practice of the Port Labor Relations Committee which, as a routine matter, checked the earningsof longshoremen on occasions and deregistered those whose earnings indicated the casual nature of their work on the water front. The facts show that Crum apparently was a full-time longshoreman from 1936 to 1944 when he became a full-time employee of Griffith & Sprague Stevedoring Company, taking care of their gear locker where the longshore gear is cared for. Technically, working in a gear locker is not longshore work and ILWU does not represent such employees. Men are not dispatched from the hall for this type of work. During the year 1944 Crum earned a total of $1,740.09, of which $850.12 was for work performed for Griffith & Sprague. During the last half of the year the record shows that Crum earned the sum of $27. In 1945 Crum earned $4,976.90, all of which he earned as an employee of Griffith & Sprague in the gear locker. . In June 1946 Crum purchased a 220-acre farm in Idaho where he harvested the hay crop that year. His total earnings for that year for longshore work amounted to $336.32. He also earned the sum of $627.25 from Griffith & Sprague. Crum leased the Idaho farm for the year 1947. During that year he earned $1,876.57 from W. E W.12 and the sum of $936 43 from Griffith & Sprague. For a period of 8 weeks, Crum was prevented from working by a broken foot. During that time he apparently was on the farm in Idaho. 11 The uncontradicted evidence is that Alaska Steam had not hired any longshoremen since July 17, 1947. ra The average earnings for a longshoreman in Seattle for the year 1947 amounted to $3,712.58 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the year 1948 Crum spent practically all of his time on the farm, returning to Seattle only when there was no more farm work to be done. He earned only $1,072.10 from W. E. W., all of which except approximately $300 was earned prior to April 1n Apparently he was on the Idaho farm thereafter except for a few days in August when he returned to Seattle and dropped into the hiring hall. The dispatcher there asked him to take a job but Crum said that he was only in town for a few days and did not want to work. Upon the insistence of the dis- patcher, Crum finally took a job which was supposed to last for approximately 4 hours, but which, due to a showdown, lasted such a length of time that he actually earned $122. His remaining earnings of $186.19 were for work after the conclusion of the strike on December 6, 1948. The remainder of his time that year was spent upon the Idaho farm. Seattle longshoremen averaged between $450 to $550 for longshore work per- formed during the strike but Crum earned nothing. 2. Clarence Purnell P Purnell had been doing longshore work "off and on" since 1942 when he became a registered longshoreman in Seattle and, a member of Local 19. When he worked, he worked from the "plug board," I. e., as an individual longshoreman. Sometime after the close of the strike in December 1948, Purnell was brought before the executive board of Local 19 on charges of having failed to do the .required amount of picket duty and was ordered to pay a large fine within 30 days. He was also told at that time that he had 30 days to work before he had to pay the fine. Due to poor health, Purnell did no work during this period. In January 1949, Purnell sought from Dispatcher-Clerk Laing of the hiring hall a statement which would assist him in drawing his compensation benefits and in getting another job. Laing refused to give him the certificate of avail- ability 1° requested and also told him that he had 30 days in which to work without having to pay the fine. Purnell answered that he was not physically able to work. The last work which Purnell performed on the water front was in September 1948. After that he went to Phoenix, Arizona. Purnell admitted that he did not work after his meeting with the executive board of Local 19 nor did he go to the hiring hall and plug in on the board because he did not want to work in the cold and wet of that winter. He testified that he was sick and could not stand the bad weather. He was never plugged in on the board in the hiring hall to denote his availability for work since September 1948. However, in January, Purnell, like Crum, did phone Darrell Cornell and ask him for a statement similar to the one which he had requested from the dispatcher- clerk. Under no interpretation of this conversation could it be regarded as a request for work. In fact Purnell did not want work. His name is still on the plug board and the dispatcher testified, at least, that if Purnell had plugged in in the customary manner, he would have been, and would still be, dispatched. As Purnell never tested the truth of this testimony, there is no proof to the contrary. Purnell, again like Crum, inquired of certain employer representatives if they had anything against him or his work and was assured in each instance that there was nothing. Sometime In the early fall of 1948, Purnell bought a barber shop. He told a friend that he had bought it so that he would not have to work outside in the bad weather. He operated this shop until April 1950 when he sold it, but a few is The average earnings in 1948 of the Seattle longshoremen was $2,755 05. i} This certificate that the applicant was available for work is necessary in order to draw unemployment compensation benefits in the State of Washington. INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 321 months later opened up another and larger barber shop. During part of this time he also worked at the airport because the work there was inside work and he was not bothered by the bad weather. 3. Conclusions In order for there to be found a discriminatory refusal to employ, it is axiomatic that the individual workman must have been an applicant for employment for obviously a man cannot be refused employment where he has not applied for it. It is equally obvious that from September 1948 Purnell never applied for em- ployment on the water front. Nor, according to him, was he physically able to accept it if it had been offered. While the undersigned admits to large doubts as to the accuracy and truth of the testimony that if Purnell plugged in on the board thereby making his application for work he would be dispatched, it would be pure speculation and surmise for the undersigned to find to the contrary on the evidence before the undersigned. While it is uncontradicted that Purnell was told that he had 30 days to work before he had to pay his fine, there is no showing here that Purnell, in fact, would not have been dispatched. The only way in which the truth of that could have been tested would have been for Purnell to make an application for work, i.. e., to plug in on the board, something which he never did after September 1948. Although Purnell looked at the time of the hearing as though he were physically able to work on the water front, there is no showing as to when he became able to do so. Purnell's own testimony proves him to have been physically unable to accept such employment in January 1949. For the above-assigned reasons the undersigned believes, and therfore finds, that Purnell was not discriminated against by either Local 19 or W. E. W. His charge against ILWU, of course, was barred by Section 10 (b). The same reasoning does not apply to Crum because after the conclusion of his 30-day period he was actually told by the dispatching office that he would no longer be dispatched with his gang until his fine was paid. His acceptance of this statement over the phone was more docile than one would expect. It is also to be recalled that in August 1948, the dispatcher had been forced to beg Crum to accept work on the water front as a favor to the Union because there were too few men in the hall to fill all of the work opportunities available. At this time Crum had baldly stated that he did not want work and he had appeared at the hall for a social visit only. He had become a farmer. He did not return to Seattle after this short visit in August until after he could no longer work on his farm due to the weather. And in early 1950 he had returned to the farm again as soon as the weather permitted. It may well be queried how seriously Crum was an applicant for work in December and January. Since 1944 Crum had been a sporadic and casual worker on the water front.' His work in the gear locker for Griffith & Sprague is not technically water-front work although definitely appended thereto However, this type of employment is completely different and divorced from that of the regular water-front employee dispatched from the hiring hall. In 1945 he earned nothing from water-front work, his whole earnings that year coming from his work in the gear locker for Griffith & Sprague. In 1946 he became a farm owner and thereafter a good part of his time has been spent in Idaho on that farm. His earnings on the water front since then have been less than half the average earnings of the longshore- men on the Seattle water front. Obviously Crum told the dispatcher the truth in August 1948 when be said that he did not want work on the water front. He was, in fact, a farmer. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has long been customary on the Seattle water front, especially in times when any and every Tom, Dick, and Harry is not practically impressed into service to try to move the cargo somehow, to prefer and keep the steady full-time longshoremen and to eliminate the casual longshoremen from employment. Every business prefers steady employees. Crum clearly fell into the class of employees whom good business practice would tend to eliminate. No unfavorable implication regarding Crum should be drawn from the above remark for the undersigned intends only to convey the idea that Crum's interest by this time lay at the farm and not in his casual work on the water front. As employees, there were no complaints against either Crum or Purnell. But the fact remains that Crum no longer was to be counted on as a steady employee on the water front. On April 20, 1949, acting upon the motion of the representatives of Local 19, the Port Labor Relations Committee voted unanimously in accordance with the established practice to deregister Crum on the ground that he was a part-time worker in the industry. On the record here, the undersigned finds that this decision was justified and in accordance with established practice. But the fact remains that on January 27, 1949, Crum was refused employment as a longshoreman because his membership had been terminated for reasons other than the failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership and in order to encourage membership in Local 19. This refusal constitutes a violation of Section 8 (a) (3) and 8 (b) (2) and 8 (b) (1) (A). But the W. E. W. and its Employer-Members argue in their brief that they cannot be held responsible for any such discrimination because they had no knowledge or information that the dispatcher was discriminating against any employee nor did they knowingly acquiesce in any such "practice." The short answer to this argument is that, although elected by Local 19, the dispatcher is the employee of the Port Labor Relations Committee and thus the agent of both W. E. W. and Local 19 for whose acts W. E. W. and Local 19 are responsible. ILWU, on the other hand, argues that it is not responsible because it had no part in the enforcement of these contracts at all. Local 19 does not advance any similar contention, which, under the facts of this case, is just as well. ILWU did negotiate the Coast Agreement but the execution of that agreement is not alleged in the complaint to be an unfair labor practice so far as ILWU is concerned, the complaint only charging ILWU with an unfair labor practice in the enforcement of that and of the Dock Agreement. The facts show without contradiction that Local 19 and W. E. W., and they alone, enforced these con- tracts and promulgated the rules contemplated thereunder. Local 19 and W. E. W. composed the Port Labor Relations Committee through which they operated the hiring hall. Local 19 and W. E. W. shared the expense of the operation and maintenance of that hall jointly. ILWU played no part in the actual operation and maintenance of the hall nor in the enforcement of the contracts here involved. In the Sorce and Stafford cases" the Trial Examiner found that the Coast Agreement "contemplates that it will be carried out in actual practice, so far as ILWU interests are concerned, by representatives of its local union in each port." From this the Examiner found that the union representatives in the Port Labor Relations Committee were in fact the agents of ILWU for whose actions ILWU was responsible. It is true that ILWU negotiated the Coast Agreement which provided for the establishment of the hiring halls under the 11 Cases Nos 20-CB-87 and 20-CB-89. This is the second' of the series of cases against ILWU. INTERNATIONAL LONGSHOREMEN'S, ETC., UNION 323 joint operation and management of the local Employers Association and "the Union." The Coast Agreement also provides that the registration and the dis- patching rules for the hiring hall should be promulgated by the Port Labor Relations Committee composed of representatives from the local Employers Asso- ciation and "the Union." The Examiner in the Sorce case, therefore, interpreted the word "Union" as it was defined in the Coast Agreement to mean the ILWU. From a technical reading of that agreement, the word "Union" as used therein has to be read as "ILWU" for the reason that the ILWU is the only party to the contract, the locals not having been mentioned therein. However, inter- preted in the light of actual practice under the contract, the representatives of the "Union" on the individual Port Labor Relations Committee were repre- sentatives of Local 19, the rules for the operation of the hall and the dispatching of longshoremen were negotiated by representatives of Local 19 with representa- tives of W. E. W., the dispatcher was elected by Local 19, and the "Union's" share of the expenses were paid by Local 19. As noted above the only action taken by any representative of ILWU in this case occurred when Bill Gettings was requested to give his advice on the interpretation of a section of the con- stitution of Local 19 by the secretary of Local 19 and Crum and thereupon did so. In truth and in fact, ILWU-played no part in the enforcement of the Coast Agreement. While the interpretation made in the Sorce case is technically cor- rect, it is a most strained interpretation when viewed in the light of the actual facts. Where local unions are autonomous bodies as they are here, it has long been the law that liability may not be found from the mere affiliation of two separate entities.10 Nor would mere membership in ILWU of the representa- tives of Local 19 make those individual members agents of ILWU. This is clear from the legislative history of the Taft-Hartley Act. The undersigned, therefore, finds in conformity with the facts that ILWU did not enforce or assist in the enforcement of the Coast Agreement here nor of the Dock Agreement to which ILWU was not even a signatory. In view of these findings the undersigned will recommend that this complaint in its entirety be dismissed as to ILWU. However, it is clear, and the undersigned finds, that W. E. W. and its Employer- Members discriminated in regard to the hire and tenure of employment of Albert G. Crum on January 27, 1949, in violation of Section 8 (a) (3). But due to Section 10 (b) the undersigned cannot find that Local 19 caused W. E. W. to so discriminate in the action mentioned above in violation of Section 8 (b) (2) and 8 (b) (1) (A). However, as indicated above, the undersigned also finds that Crum was deregistered by the Port Labor Relations Committee on April 20, 1949, for non- discriminatory reasons and in the usual course of operations and that the dis- crimination against Crum ended as of April 20, 1949. As indicated above the undersigned finds also that neither W. E. W. nor Local 19 violated the Act by their actions in the Purnell matter and will, therefore, recommend that the complaint be dismissed as to both of these Respondents in this matter. IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III, above, occurring in connection with the operations of the Employer set forth 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 ob- structing commerce and the free flow of commerce. 11 Coronado Coal cases, supra 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondents W. E. W. and Local 19, and each of them, have engaged in and are engaging in certain unfair labor practices, the under- signed will recommend that each of them cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As the record amply demonstrates that Respondent W. E. W., by executing the Dock Agreement and by ratifying the Coast Agreement, and Respondent Local 19, by executing the Dock Agreement, each of which agreements contained clauses granting preferences in registration and in employment to longshoremen on the basis of union membership which are illegal under the Act, and each of said Respondents, by the enforcement of such illegal preference clauses, have discriminated or attempted to discriminate in the hire and tenure of employment of longshoremen, dock workers, and applicants for employment, the undersigned will recommend that these named Respondents, and each of them, cease and desist from giving effect to such preferential clauses in the Coast Agreement of December 17, 1948, and the Dock Agreement of February 26, 1949, or to any extension, renewal, modification, or supplement thereto, or to any superseding contracts which, by their terms or in their performance, require the Respondents or their agents, the dispatchers in the hiring hall in Seattle, Washington, to dis- criminate in regard to the hire or tenure of employment or any term or condition of employment of any longshoreman or dock worker or applicant for such employ- ment except in accordance with the proviso in Section 8 (a) (3) of the Act. In order that those charged primarily with the responsibility of enforcing such an order, to wit, the dispatchers in the Seattle hiring hall, may be fully aware of their duties in this respect, the undersigned will recommend that the Respondents W. E. W. and Local 19, and each of them shall separately notify all the dis- patchers of the Port Labor Relations Committee at the hiring hall in Seattle to the above effect and instruct them further that they are in the future not to discriminate among longshoremen and dock workers in their hire or tenure of employment in any way based on membership or nonmembership in Local 19. Having also found that Respondent W. E. W. discriminated against Albert G. Crum on January 27, 1949, the undersigned will recommend that this Respond- ent reimburse him for any loss of pay he may have suffered by reason of the discrimination against him on that day to April 20, 1949, when the Port Labor Relations Committee legitimately decided that Crum should be deregistered as a longshoreman based upon the casual nature of his work. In computing the amount of back pay due to Albert G. Crum, the customary formula of the Board set forth in F. W. Woolworth Company, 90 NLRB 289, shall be applied. Upon the foregoing findings of fact and the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Waterfront Employers of Washington and its Employer-Members are em- ployers within the meaning of Section 2 (2) of the Act. 2. International Longshoremen's and Warehousemen's Union, and Interna- tional Longshoremen's and Warehousemen's Union, Local 19, are labor organi- zations within the meaning of Section 2 (5) of the Act. 3. W. E. W., by executing and enforcing the Coast and Dock Agreements, and by discriminating in regard to the hire and tenure of employment of Albert G. Crum, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act. CALIFORNIA WILLYS 325 4. Local 19 , by executing the Dock Agreement with its illegal preference-in- employment clause and by attempting to cause the Employers to discriminate in regard to the hire and tenure of employment of longshoremen , dock workers, and applicants for employment in violation of Section 8 (a) (3) of the Act, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 5. W. E. W. and Local 19, by restraning and coercing employees and prospective employees of the Employers in the exercise of the rights guaranteed in Section 7 of the Act, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) and 8 (b) (1) (A), respectively , 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. ILWU has not violated the provisions of the Act. [Recommendations omitted from publication in this volume.] SIDNEY MILLER, EDWARD GINSBERG, AND Louis GINSBERG, CO-PARTNERS D/B/A CALIFORNIA WILLYS and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE No. 94, LOCAL LODGE No. 1186. Case No. 21-CA-1001. February 26,1952 Decision and Order On September 6, 1951, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and, desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings made by the Trial Examiner are hereby affirmed. The Board has con- sidered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following addi- tions and modifications : 1. We agree with the Trial Examiner that the Respondents inter- fered with, restrained, and coerced their employees, in violation of Section 8 (a) (1) of the Act by the numerous acts of interrogation and threats fully described in the Intermediate Report, and referred to in paragraph numbered 2, below. 'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Mem- bers Murdock and Styles]. 98 NLRB No. 45. 998666-vol. 98-53 22-