Pacific American Shipowners Association

582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PACIFIC AMERICAN SHIPOWNERS ASSOCIATION, PACIFIC MARITIME ASSOCIATION, ALASKA STEAMSHIP COMPANY, AMERICAN MAIL LINE, LTD., POPE & TALBOT, INC., NATIONAL UNION OF MARINE COOKS & STEWARDS, CIO and DON L. ROTAN ALASKA STEAMSHIP COMPANY and PACIFIC MARINE STEWARDS UNION, AFL, NATIONAL UNION OF MARINE COOKS & STEWARDS, CIO and FRANKLIN BARKSDALE, MARSHALL ROBERT MCMONAGLE, AND Louis A. THIESEN. Cases Nos. 19-CA-186, 19-CA-187, 19-CA-188, 19-CA-189, 19-CB-46,19-CB-78,19-CA-213,19-CB-32,19-CB-61, and 19- GB-65. March 12, 1952 Decision and Order On January 30, 1951, Trial Examiner Robert L. Piper issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents Pacific American Shipowners Association, Pacific Mari- time Association, Alaska Steamship Company, American Mail Line, Ltd., and Pope & Talbot, Inc. (herein individually referred to as Respondents PASA, PMA, Alaska, American Mail, and P & T, respectively, and collectively. referred to as the Respondent Com- panies), and National Union of Marine Cooks & Stewards, CIO (here- in called the Respondent Union), had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action," as set forth in the copy of the Intermediate Report attached hereto. He also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of those allegations. Thereafter, the Respondent Companies, the Respondent Union, the General Counsel, and charging parties Don L. Rotan ' and Pacific Marine Stewards Union, AFL (herein called PMSU), filed exceptions to the Intermediate Report and supporting briefs. The Respondent Companies' request for leave to file a sup- plemental brief, copies of which were attached to the request and were served upon the other parties, is hereby granted. The request for oral argument by the Respondent Companies and the Respondent Union is hereby denied, as the record and briefs, in our opinion, adequately present the issues and positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in 98 NLRB No 99. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 583 the case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner, with the exceptions, modifications, and additions noted below. 1. The Respondents, relying on Section 10 (b) of the Act, except to all the findings made by the Trial Examiner that are based on allegations incorporated in the complaint, as amended at the hearing, which were not specified in the original charges or, 'in certain in- stances, in the amended charges. Some of these allegations appear for the first time in the complaint, and some were incorporated by amendments to the complaint at the hearing. It is not urged, nor does it appear, that, in either situation, Respondents were prejudiced by being unable adequately to defend against these allegations. We find no merit in these exceptions. Section 10 (b) of the Act does not require charges to specify or particularize each unfair labor practice to be litigated. It is sufficient that, as here, unfair labor practice findings are based on conduct alleged in the complaint, as amended, which occurred within the 6-month period preceding the filing and serving of the initial charges.z 2. The Respondents except to various findings of the Trial Examiner on the ground that he erred in crediting certain testimony adduced by the General Counsel, and in refusing to credit certain testimony presented by the Respondents. As set forth in Standard Dry Wall Products. Inc.,3 the Board attaches great weight to the credibility 3 The Intermediate Report contains certain misstatements of fact and inadvertences, none of which affects the Trial Examiner 's ultimate conclusions , or our concurrence therein Accordingly , we note the following corrections ( 1) While the record shows that Sailor's Union of the Pacific ( hereinafter called SUP ) carried on certain organizing activities in the spring of 1948 among employers on the West Coast , it does not establish , as the Trial Examiner found , that those organizing activities were directed against all the Respondent Companies , ( 2) while it appears that certain members of the Respondent Union who Joined the ranks of P11ISU had sailed on vessels operated by some of the Respondent Companies, the record does not show that all those who abandoned the Respondent Union in favor of PMSU had sailed on vessels operated by all the Respondent Companies, as the Trial Examiner seems to find, ( 3) while a large number of PSMU adherents are referred to in the Respondent Union 's blacklist of April 11 , 1949 , as "formei " members of its organiza- tion , the record fails to support the Trial Examiner's finding that "many" PMSU converts were formally expelled from the Respondent Union , (4) insofar as the record discloses, Starnes was a member of the Respondent Union when lie applied to the Respondent Alaska for employment in December 1948, and not a former member, as the Trial Examiner implies and (5 ) the record shows that on about May 31, 1949 , McMonagle asked for a job as chief cook on the Square Stinnett, and not for employment generally, as the Trial Examiner finds 2 Cathey Lumber Co, 86 NLRB 157, enfd 185 F 2d 1021 ( C A. 5), dismissed on other grounds . 189 F 2d 428 ( C A 5) ; Weaver Wmntark, 87 NLRB 351 , Lally-Tulip Cup Corp., 88 NLRB 892 ; Tennessee Knitting Mills, Inc., 88 NLRB 1103, Globe Wireless, Ltd, 88 NLRB 1262 . enfd 193 F 2d 748 ( C. A 9) ; Stokely Foods, Inc., 91 NLRB 1267, enfd 193 F. 2d 736 ( C. A. 5) ; Ferro Stamping and Manufacturing Co , 93 NLRB 1459 . The Hunkin- Conkey Construction Company, 95 NLRB 433 Moreover, with specific reference to the allegations in the complaint respecting the May 7 application for employment , we find, contrary to the Respondents , that the charge filed in Case No 19-CA-213 adequately set forth such conduct 991 NLRB 544, enfd 188 F 2d 362 (C A. 3) 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD findings of Trial Examiners insofar as they are based on demeanor, and acordingly does not overrule it Trial Examiner's resolution of credibility except where the clear preponderance of all the relevant evidence convinces the'Board that his resolution was incorrect. No, basis for overruling him exists in this case. We therefore adopt the Trial Examiner's credibility findings. 3. In agreement with the Trial Examiner, we find that the Respond- ent Union did not violate the Act by its strike of September 2, 1948. The Respondent Cofiipanies contend that the strike, called by the Respondent Union while negotiations for a new contract were being conducted, was for the purpose of securing an illegal preferential hiring clause for its members. In our opinion, the preponderance of the evidence fails to support this contention. It shows instead, as. was found in National Union of Marine Cooks and Stewards, 90 NLRB 1099, where the identical issue deriving from the same strike activity was before the Board, that the objective of the strike, insofar as hiring practices were involved,, was to compel the Respondent PASA to accede to the hiring proposal submitted by the Respondent Union on August 31, 1948. As that proposal was a lawful one, we shall dismiss the allegations in the complaint that the Respondent 'Union's 1948 strike violated the Act. And, as pointed out by the Trial Examiner, although the agreement concluded between the Respondent Union and the Respondent PASA did contain an illegal preferential hiring clause, the Respondent Union agreed to that clause- at the behest of the Respondent PASA. 4. We find, in substantial agreement with the Trial Examiner, that, by becoming parties to and enforcing the illegal hiring provisions. contained in December 2, 1948, contract,4 the Respondent Companies violated Section 8 (a) (3), 8 (a) (2), and 8 (a) (1) of the Act. We agree with the Trial Examiner,5 except that (a) with respect to the Respondents PASA and P & T, we base our finding upon the Respond- ents' act of agreeing to the December 2, contract, as there is no specific evidence to show that they themselves ever enforced the contract; 4 Although dated December 2, 1948 , when a memorandum of agreement was initialed by the parties, the contract itself was actually signed between December 2 and 8, 1948 Found to be unlawful in National Union of Marine Cooks and Stewards, supra, it was negotiated and executed by the Respondent PASA on behalf of member companies , including the Respondents Alaska, American Mail, and P & T, and provided, inter alia, that : The Employers agree to give preference of employment to members of the Union, and to secure employees in their stewards department through the offices of the Union . . Permit men may be replaced by Book members, and the Permit men replaced under such circumstances shall be considered laid off. 5 There is no merit to the Respondent Companies ' claim that "In the absence of any issue involving rival claims for recognition , the consummation of the agreement of Decem- ber 2 , 1 948, is not subject to question " under Section 8 (a) (2). Rockaway News Supply Company, Inc., 94 NLRB 1056 o Juluus Resnick, Inc, 86 NLRB 38; New York State Employers Association, Inc, at al., 93 NLRB 887. As appears hereinafter , the Respondent PASA is responsible for the discrimination arising out of the enforcement of the contract by its member companies. PACIF.TsG 1E.RK AM S$IPOWIViERS ASSOCIAyTION 58 and (b) in the case of the Respondent PMA, we rely on the fact that that Respondent replaced the Respondent PASA as a party to the illegal contract 7 and thereafter permitted the contract, with its illegal hiring provisions, to continue in operation. We also agree with the Trial Examiner's finding that, by executing and enforcing the illegal contract, the Respondent Union violated Section 8 (b) (2) of the Act. However, we do not agree with his finding that the Respondent Union did not violate Section 8 (b) (1) (A) by this conduct. For the reasons stated in New York State Employers Association, Inc., supra, we find that the Respondent Union violated Section 8 (b) '(1) (A) of the Act by its execution and enforcement of the illegal contract. Our holding that the Re- spondent Uiiion enforced the illegal contract is based in part on the blacklist distributed by the port agent of the Seattle branch of the Respondent Union to other port agents of the Respondent Union, as fully described in the Intermediate Report. Contrary to the Respondents, we find that the record does not sup- port a finding that the hiring provisions of the contract in question were, as to experienced and qualified seamen, administered by the Respondent Union in a nondiscriminatory manner- after January 1949. To support their position, the Respondents rely on testimony given at the hearing that in January 1949 Harris, port agent of the Respondent Union, advised Ward and Nichols, dispatchers for the Respondent Union, that qualified and experienced seamen-who applied for employment were to be dispatched without regard to their union status. Significantly, however, no evidence was adduced to show that the alleged change in policy was ever made known to the Respond- ent Companies' or their employees, or put into practice. On the other hand, there is ample indication that the Respondent Union did not alter its discriminatory dispatching policy in the following : (a) the blacklist of April 11, 1949, because of rival union activity, hereinafter discussed; (b) 'the Respondent Union's rejection on April 29, 1949, of the April 16 request by PMSU organizer Rotan that 94 persons, all described by Rotan as "qualified seamen" (many of them appeared on the blacklist), be allowed to seek employment through the Respondent Union's hiring hall; and (c) the fact that in July 1949 the Respondent Union adopted new shipping rules which, like the ones replaced, provided for a priority in shipping to members of the Respondent Union. Accordingly, we perceive no basis for mod- ifying the findings herein on this ground. 7 On May 20, 1949, the Respondent PASA and other employer associations were con- solidated into the Respondent PMA, which came into formal existence shortly thereafter. Upon consolidation , the Respondent PMA succeeded to all the rights, properties , debts, and liabilities of the Respondent PASA, and, as provided for in the- consolidation agreement, all members of the Respondent PASA ipso facto became members of its successor. 586 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD' = 5. We find, for the reasons fully set forth in the Intermediate Report, that none of the Respondent Companies or the Respondent Union violated the Act on either January 5 or 11, 1949. 6. On April 11, 1949, Joseph C. Harris, port agent of the Seattle branch of the Respondent Union, sent a letter to Alaska Fishermen's Union, (herein called AFU), which had a contract with employers in the canning industry requiring union membership and clearance as a condition of employment, in which it referred to those named on an attached list as "former members of the National Union of Marine Cooks and Stewards, who deserted this Union during the 1948 maritime strike and attempted to organize a dual organization under the leadership of the Sailors Union of the Pacific for the pur- pose of breaking our strike and destroying our union." It then impliedly suggested that those individuals be denied employment in the canning industry. Thereafter, several on this blacklist were unable to obtain work in the canning industry because of AFU's refusal, on account of the blacklist, to clear them. The Trial Examiner found, and we agree, that the Respondent Union violated Section 8 (b) (1) (A) of the Act because of the blacklist which it sent to AFU 8 Section 7 of the Act guaranteed to those named in the blacklist the right to refrain from supporting the Re- spondent Union's 1948 strike activities, and to assist, instead, in the organizational activities of a labor organization of their choosing. As already found, several of those individuals were deprived of em- ployment as a result of the intervention on April 11 by the Respond- ent Union, because, having exercised the freedom of choice which Section 7 protects, they had fallen into disfavor with the Respondent Union. The rejection of their employment applications because of the Respondent Union's conduct made it unmistakably plain to the employees in question, and to the others named in the blacklist, that they must either regain good standing in the Respondent Union or forego opportunity for employment. In these circumstances, it is clear that the Respondent Union's effective blacklist restrained and coerced employees in the exercise of rights guaranteed by the Act. We accordingly find that the Respondent Union thereby violated Section 8 (b) (1) (A) of the Act.9 6 Member Murdock does not join in this finding See his separate partial dissent 9 Cf. The Rus8ell Manufacturing Co , 82 NLRB 1081, enf. den . on other grounds, 187 F. 2d 296 and 191 F. 2d 358 ( C A 5), where the Board held the establishment of an effective blacklist by employers to be a violation of Section 8 (a) (1) of the Act. See also the following cases in which the Board made it clear that economic reprisals against specific individuals for the purpose of compelling them to join or assist a union is proscribed by Section 8 ( b) (1) (A) of the Act• National Maritime Union, et al., 78 NLRB 971, enfd 175 F. 2d 866 (C. A 2) ; International Typographical Union, 86 NLRB 951 , enfd. 193 F. 2d 782 ( C A. 7) ; Clara-Val Packing Company, 87 NLRB 703, enf. den on other grounds, 191 F. 2d 556 ( C. A 9)'; Marine Cooks and Stewards ( Burns Steamship Co.), 92 NLRB 877; Miamt Copper Company, 92 NLRB 322. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 587 We do not agree with our dissenting colleague that the blacklist sent to AFU was designed to strengthen and protect the illegal con- tract against the activity of dissident members and, as such, is an intrinsic part of conduct which we have already found to be unlawful. As is clear from the above, and the Intermediate Report, the blacklist was in fact designed to penalize employees for their activity during the 1948 strike. Moreover, we believe that sending the blacklist to AFU was collateral to the actual enforcement of the contract; to hold, as we do, this to be a separate violation of Section 8 (b) (1) (A) is akin to finding coercive a separate statement to an employee by a contracting party affirming the illegal hiring hall arrangement. The General Counsel has, however, excepted to the Trial Exami- ner's failure to find that the Respondent Union's conduct in connec- tion with the blacklist sent to AFU violated Section 8 (b) (2), as well as Section 8 (b) (1) (A), of the Act. His contention that there was a'violation of Section 8 (b) (2) 10 proceeds on the theory that, whereas the first proscription of Section 8 (b) (2) refers to cases in which a labor organization causes or attempts to cause employer discrimina- tion, the second refers to cases in which a labor organization itself discriminates against an employee "in ways that affect hire, tenure and conditions of employment" and where no correlative action by the employer is involved. According to the General Counsel, the facts herein show such discrimination by the Respondent Union against the individuals on the blacklist. In effect, the General Counsel would read Section 8 (b) (2) as establishing two unfair labor practices on the part of a labor organi- zation, with only one of them involving discrimination by an em- ployer. With this construction we do not agree. In our opinion, it is neither supported by the language of the section, 'especially when read in the light of the other provisions of the Act, nor the section's legislative history. In Eclipse Lumber Company, Inc., 95 NLRB 464, the Board, in effect, rejected a similar contention. Moreover, the Board has already applied the second portion of Section 8 (b) (2) against a union which caused an employer to discharge an employee whose membership in the union had been denied or terminated on some ground other than his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or re- 10 Section 8 (b) (2) reads as follows It shall be an unfair labor practice for a labor organization or its agents ... to- cause or attempt to cause an employer to discriminate against an employee in viola- tion of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly- required as a condition of acquiring or retaining membership 588 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD taming membership;11 Contrary to the, Genera, Counsel, therefore, we find that the second, as well as the first, portion of Section 8 (b) (2), was meant, in the, language of the Trial Eziuniner, "to prohibit caus- ing or attempting to cause employer discrimination and not union discrimination independent of an employer." In view thereof, and the Trial Examiner's finding, to which no exception was taken, that AFU did not itself occupy the position of an employer as to those on the blacklist, or the agent of such an employer, we conclude that the Respondent Union did not violate Section 8 (b) (2) of the Act by reason of the blacklist which it sent to AFU on April 11, 1949. 7. We agree with the Trial Examiner's holding that, by executing and enforcing the December, 2 contract, the Respondent Alaska dis- criminatorily refused to reemploy, or discharged, the 27 complain- ants listed in Appendix B of the Intermediate Report, in violation of Section 8 (a) (3) and 8 (a) (1) of the Act, and that the Re- spondent Union caused this discrimination, in violation of Section 8 (b) .(2) and 8 (b) (1) (A) of the Act. As fully detailed in the Intermediate Report, the 27 complainants were employed on ships operated by the Respondent Alaska at the time those ships were tied up on account of the strike. Under the maritime practice and custom then prevailing those 27 employees, and all other employees of the Respondent Alaska similarly situated, were entitled to be redispatched to their identical prestrike jobs, without regard to their union status, when, upon the conclusion of the strike, the ships on which they had served were again put into service. As already noted, however, on December 2 an agreement was arrived at for settling the strike. This agreement, formalized between December 2 and 8, provided for preference of employment to mem- bers of the Respondent Union. News of the strike settlement ap- peared as "front page headlines" prior to December 8. On various dates between December 7, 1948, and May 16, 1949, the ships on which the complainants were serving at the outbreak of the strike were again put into service and crews were hired. None of the 27 com- plainants in question, including those among them who made appli- cation therefor, was returned to his prestrike job on those ships. It is clear from the foregoing that, although the 27 complainants were entitled to return to their prestrike jobs on a nondiscriminatory basis, i. e., without regard to their precise union status at the time, the Respondent Alaska, by entering into an agreement with the Re- spondent Union which required preferential treatment in all cases 11 Ferro Stamping and Manufacturing Co , supra. The Employer involved was exculpated by the Board because it did not have reasonable grounds for believing that the employee's membership was terminated for reasons other than his alleged failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 589 for members' of the Respondent Union, erected an illegal barrier against their reemployment which effectively precluded them from returning to their prestrike jobs except as members of the Respond- ent Union. This action on the part of the Respondent Alaska was tantamount to an absolute refusal to reemploy all the complainants 12 We find this to be so, even as to those complainants who did not re- quest their prestrike jobs. Clearly, any such application would have been futile, unless the complainants were willing to comply with the discriminatory condition imposed by the .Respondent Alaska, and this they were not required to do.13 In support of its position that no illegal condition was ever imposed by it as against any of the complainants in the group under discus- sion, and that no unlawful discrimination therefore occurred, the Respondent Alaska points to an oral agreement entered into on Novem- ber 28, 1948, in which it and the Respondent Union agreed that, at the conclusion of the strike, they would adhere to the maritime practice and custom described above. It also relies on the action taken with respect to 6 of the complainants, namely, George Responte, A. W. Charlesworth, Hugh McIntyre, John W. Smoczyk, Thomas C. Harris, and Louis Larsen, who, on May 7, 1949, requested employment in their prestrike jobs on the Aleutian, as evidence of the fact that it did not impose an illegal condition upon their reemployment, and of its bona fide attempt to live up to the November 28 agreement. We find no merit in the Respondent Alaska's position. For the record estab- lishes, and we find, that the November 28 hiring arrangement was superseded by the one on December 2, and that the December 2 agree- ment, rather than the November 28 understanding, was invoked against those in the position of the 27 complainants, including the 6 individuals who applied for their prestrike jobs on May 7. Thus, the agreement reached on December 2 failed to recognize in any way the preferred status held by those whose employment was interrupted by the strike. Indeed, the only employees given a preference of employ- ment by that agreement were those who belonged to the Respondent Union, whether or not they were employed on ships tied up at the out- break of the strike. Moreover, at no time were the terms of the November 28 agree- ment ever made public, either before or after December 2. Further- more, when employees entitled to their prestrike jobs applied in timely fashion for those jobs they were refused employment by the Respond- "See Eagle-Picker Mining & Smelting Company v. N. L. R B, 119 F. 2d 903 (C A. 8), enfg. 16 NLRB 727; Carlisle Lumber Company , 2 NLRB 248 , enfd. 94 F. 2d 138 (C. A 8) ; Shellabarger Grain Products Company , 8 NLRB 336 , enfd 110 F 2d 78 (C. A. 9) ; Sunshine Mining Company , 7 NLRB 1252 ; Jacob A Hunkele, 7 NLRB 1276 ; I Spiewak & Sons, 71. NLRB 770 11 It is not contended tiiat, as of the time their prestrike jobs became available, these complainants had withdrawn from the labor market. 590 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD ent Alaska on account of the December 2 contract. The illegal contract was specifically assigned by the Respondent Alaska on May 12 as the reason for its rejection of the May 7 application for employ- ment made on-behalf of the 'six complainants named above and others. And although the Respondent Alaska places much emphasis upon the fact that on May 13 it requested the Respondent Union to dispatch the afore-mentioned six complainants, we are not satisfied that the request was made in recognition of the unqualified right of those six employees to return to work under the November 28 agreement, or that the Respondent Alaska was genuinely interested in facilitating their return to work. Having already been advised by Rotan's appli- cation for employment dated March 31, 1948, which is discussed hereinafter, that each of the six complainants had been discriminated against by the Respondent Union, and was unwilling to "proceed through the channels of that organization to secure employment," the request to the Respondent Union to dispatch them was a mere nullity. Significantly, too, at no time did the Respondent Alaska seek to con- tact them through Rotan, who was, to the Respondent Alaska's knowledge, acting as their representative in employment matters. On the basis of the foregoing, and the entire record, we find that the Respondent Alaska, by its execution and enforcement of the De- cember 2 contract, as described above, effectively repudiated the No- vember 28 oral agreement and imposed an illegal condition upon the reemployment of the employees in the prestrike group under discus- sion, and thereby discriminated against them in violation of Section 8 (a) (3) and 8 (a) (1) of the Act14 It is equally clear that the discrimination against these 27 com- plainants is also attributable to the Respondent Union. Its respon- sibility under the cases derives from the very existence of the Decem- ber 2 contract, to which it was a party, and the enforcement of the contract by the Respondent Alaska 15 Although, as noted above, the Respondent Union was a party to the November 28 oral agreement, it, no more than the Respondent Alaska, can avail itself of that agree- ment as a defense herein. For apart from the considerations adverted to in appraising Respondent Alaska's liability, there is other evidence in the record which impels us to conclude that the Respondent Union, like the Respondent Alaska, at no time during the critical period ad- hered to the November 28 oral agreement. Thus, (a) the Respond- ent Union rejected Starnes' timely request for his prestrike job with 14 In the absence of exceptions thereto, we adopt without comment the Trial Examiner's finding that the Respondent Alaska did not similarly discriminate against those individuals who were employed on ships operated by the Northland Transportation Company at the outbreak of the strike. 15 Childs Company, 93 NLRB 281; Del F. Webb Construction Company, 95 NLRB 75, Consolidated Western Steel Corporation , 94 NLRB 1590 PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 591 the statement that he "had better take a long vacation"; (b) on De- cember 16 , 1948, the membership of the Respondent Union's Seattle branch adopted its acting agent's report that "The list of renegades from MCS [which included those among the group in question who had transferred their allegiance from the Respondent Union to PMSU] will be distributed to the NMU and SILT, as well as to all of our branches, and these people are going to have a pretty hard time doing their dirty work any place"; (c) on April 29, 1949, the Respondent Union rejected the April 16 request by Rotan that 94 per- sons, including 10 of those in the prestrike group of complainants whose jobs had not yet been filled, be allowed to, utilize its hiring hall; and (d) on April 11 the Respondent Union circulated a blacklist on which virtually all those in the group in question were listed; and (e) as the Intermediate Report fully shows, after having been advised by the Respondent Alaska on May 13 to dispatch the 6 complainants on the May 7 application who were entitled to prestrike jobs, the Respondent Union made an insincere attempt to locate those complainants. In view of the foregoing , and the other evidence in the record, we conclude, as did the Trial Examiner, that the Respondent Union caused the Respondent Alaska to discriminate against the 27 complainants named in Appendix B of the Intermediate Report, in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 8. The Trial Examiner found that, by rejecting the individual ap- plications for employment made by Robert E. Jewell , Leslie B. Smith, Louis Theusen, Marshall R. MeMonagle , and Ralph J. Starnes, be- cause of the illegal provisions of the December 2 contract, the Re- spondent Alaska violated Section 8 (a) (3) and 8 (a) (1) of the Act ; and that, by causing the Respondent Alaska so to discriminate, the Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. We agree with these findings. The Respondents concerned contend that they did not violate the Act as found by the Trial Examiner mainly because ( a) Smith made no "direct . . . request . . . for employment," but merely asked how he, could go about getting work and whether he was acceptable for em- ployment; and, in any event, his application was not a "bona fide, good faith one"; ( b) Theusen was "last employed in and sought employ- ment . . . in a supervisory capacity "; ( c) McMonagle did not make a bona fide, unconditional application for employment ; and (d ) Starnes was not denied employment for illegal reasons and, in advising the other complainants to "clear" through the Respondent Union, the Respondent Alaska was simply requiring them to apply for employ- ment in the normal and customary manner , and it had no reason to believe that the Respondent Union would refuse to dispatch them. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For the reasons set forth below, we are not persuaded by the foregoing contentions. Thus, contrary to the Respondents, we are of the opinion and find that Smith, by asking "about getting . . . [his] job back on the ALASKA, and whether . . . [he] would be acceptable for employ- ment," clearly made known to the Respondent Alaska his desire for employment at that very time. The further contention that his appli- cation for employment was not, in any event, made in good faith is equally'lacking in merit . The Respondents appear to rely on Smith's testimony that, because of fear of bodily harm on account of his adher- ence to PMSU, he would not have accepted a position with the Re- spondent Alaska if the rest of the crew was made up of members of the Respondent Union. Contrary to the apparent contention of the Re- spondents, however, it is clear that this evidence does not prove that Smith had no intention of accepting work under any circumstances. In our opinion, it shows merely that Smith would not have accepted employment under conditions which threatened his physical safety. It therefore plainly fails to impugn the bona fides of his application. As to Theusen, we find: that he was entitled to the protection of the Act notwithstanding the fact that his previous employment with the Respondent Alaska was in a supervisory capacity16 Although Theusen held a supervisory job during a trip for the Respondent Alaska which ended in Juwe 1948, his request on January 5, 194.9, was for "a job going to sea" (italics added). Since Theusen was quali- fied to hold virtually any job in the stewards department of a ship, and had, prior to January 1949 , sailed in nonsupervisory posi- tions, we view his request, so broadly stated by him , as encompassing a nonsupervisory position. McMonagle testified at the hearing that he would not have accepted employment with the Respondent Alaska without some assurance from the Respondent Union that he would be free from physical vio- lence if he went to work for ,the Respondent Alaska. For the reasons already stated with respect to Smith, we find that this testimony does not impugn the bona fides of his application. As to the alleged con- ditional nature of that application, it is clear that that could not have been an operative factor in its rejection , for not until the hearing did the Respondent Alaska become aware of the mental reservation with which the application was made. The Respondents' remaining argument amounts in substance to a claim that the Respondent Alaska's action with respect to all five com- plainants was in accordance with an established lawful hiring pro- 7B John Hancock Mutual Life Insurance,Company, 92 NLRB 122, enfd . 191 F 2d 483 (C. A. D. C.) PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 593 cedure. However, we have already found in the case of Starnes that the December 2 illegal contract was invoked to deny him employment 17 In addition, the record shows that Theusen, Smith, and McMonagle were told by the Respondent Alaska that its contract with the Re- spondent Union required them to obtain clearance through the Respondent Union, and that Jewell, before being advised to "clear" through the Respondent Union, was told, "You know what you have to do to get a job, don't you." As already indicated, that contract did not merely require the Respondent Alaska to hire its steward's de- partment personnel exclusively through the Respondent Union; it required, in addition, that preferential treatment be given to applicants for employment who were members of the Respondent Union, and, in practice, that is precisely what was done. Under all the circum- stances, therefore, we find, as did the Trial Examiner, that, in deny- ing employment to Smith, Theusen, McMonagle, Starnes, and Jewell, the Respondent Alaska was actually adhering to a discriminatory referral and hiring arrangement, in violation of Section 8 (a) (3) and 8 (a) (1) of the Act 18 The Respondent Union contends in effect that, even if the Respond- ent Alaska be held to have violated Section 8 (a) (3) under the cir- cumstances described above, to find a violation of Section 8 (b) (2) against the Respondent Union it must appear that the complainants applied for, and were discriminatorily refused dispatch, through the Respondent Union's hiring hall. We have already pointed out that no such burden can be imposed upon an applicant where, as here, the hiring hall is operated in a discriminatory manner. Those re- sponsible for an unlawful hiring arrangement are also responsible for the results reasonably to be anticipated. It is noteworthy that, in telephone conversations with Smith and Theusen which took place on the same day that each of them applied to the Respondent Alaska for a job, the Respondent Union made it unmistakably clear to those complainants that it would not dispatch them through its hiring hall. Accordingly, even assuming arguendo that the complainants made no attempt to be dispatched through the Respondent Union, we find that the Respondent Union caused the Respondent Alaska to discriminate against those complainants, in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. , 11 Although the Respondent Alaska claims that the provisions of that contract were not known to it until sometime after Starnes communicated with it, it appears that by December 2 there was complete agreement on the substantive matters of the contract, which was formalized at a later date, and that , when Zumdieck , superintendent of the Respondent Alaska, left San Francisco. the scene of the contract negotiations, on December 5, he was told that "we would obtain our men in the same manner as we had always done " 'A Daniel Hamm Drayage Company, Inc, 84 NLRB 458, enfd 185 F 2d 1020 (C. A 5) Consolidated Western Steel Cot pot atzon, supra, net E Webb Construction Company, supra; Utah Construction Company , 95 NLRB 196. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. The Trial Examiner found, and we agree, that, by discrimina- torily rejecting the application for employment made by Thomas J. Howard, the Respondent American Mail violated Section 8 (a) (3) and 8 (a) (1) of the Act, and that, by causing such discrimination, the Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. Our finding in this donnection is based on Howard's credible tes- timony that on about December 6, 1948, he inquired of the Respondent American Mail "about the saloon pantryman's job that . . . [lie] had been holding up to the time of the strike" and was told that, be- cause of the contract which the Respondent American Mail had signed with the Respondent Union, he would have to go through the Re- spondent Union's hiring hall. For the reasons already made clear in the cases of Smith and McMonagle, we reject the contentions of Re- spondent American Mail that Howard's mental reservations as to the job requested, made known to it for the first time only at the hearing, affect the validity of his application. 10. By letter dated March 31, 1949, Rotan requested employment for the 92 individuals whose names,appear in Appendix D of the Intermediate Report. The application read in pertinent part : I am enclosing a list of ninety-two (92) names . . . As their designated representative, I hereby apply for positions for each one on said list with the Alaska Steamship Company. For those on the list who previously worked with your company, I am applying for the positions last previously held. For those on the list who may not have been employed by your Company, I am applying for the position of Messman for each one. Each man on the list is capable and competent to perform work in the Steward's Department on vessels of Alaska Steamship Company. Each man will report promptly when called for prospective positions, by your Company. By letter dated April 11, 1949, the Respondent Alaska replied to Rotan as follows : We acknowledge receipt of your letter of 31 March 1949 . . . in which is enclosed a list of names of 92 persons on whose behalf you apply for positions with this company. The matter of employment of Steward's Department personnel for this company is now the subject of various unfair labor prac- tice charges filed with the National Labor Relations Board, to- gether with a petition by your organization for certification. We presume that in due course the issues presented will be clarified by the action taken by the National Labor Relations Board. The Trial Examiner found that the Respondent Alaska, by its reply of April 11, refused to take action on the March 31 application be- PACIFIC AMERICAN SHIPOWNERS ASSOCIATION ' 595 cause of the December 2 contract.'s' He concluded that the Respond- ent Alaska thereby violated Section 8 (a) (3) and 8 (a) (1) of the Act, and that the Respondent Union, by causing the Respondent Alaska to discriminate against the employees involved, violated Sec- tion 8 (b) (2) and 8 (b) (1) (A) of the Act. For the reasons stated by the Trial Examiner we agree with the Trial Examiner's conclusions, except in the cases of the eight complainants named hereinafter for whom supervisory jobs were requested. Like the Trial Examiner, we are satisfied from all the record that the March 31 application was made to secure work for all or any of the individuals named in it and, contrary to the Respondents, was not intended to cause discrimination against other employees or designed to further the bargaining position of any union. The facts in Vaughn Bowen, et al., 93 NLRB 1147, relied upon by the Respondent Companies, are wholly distinguishable. Significantly, although the Respondent Alaska now contends that Rotan's request appeared to it to require the commission of an unfair labor practice, it did not specifically assign that as a reason for reject- ing the application. In any event, it is sufficient that one of the rea- sons motivating the Respondent Alaska to act as it did was the illegal hiring provisions of the December 2 contract.20 We do not agree with the argument that the application as to many complaints was based on conditions which the Respondent Alaska was not required to meet, as shown by their testimony at the hearing; and that the Respondent Alaska was therefore "privileged" to act upon the application as it did. In this connection the Respondents point to testimony by complainants that they would not have accepted employ- ment except under certain conditions, such as employment of other PMSU members and prior approval by PMSU. However, the record shows quite clearly that the application was not submitted on behalf of any of the complainants on a conditional basis. Thus, the applica- tion itself contained a simple request for employment, with no condi- tions attached. And, although Rotan indicated to the Respondent "Nowhere does the Respondent Alaska negate the intent ' revealed by the April 11 reply to continue to adhere to the hiring practice required by the December 2 contract until that contract was set aside by the Board Indeed, it is noteworthy that ( a) Zumdieck testified that "subsequent to the receipt of this list in March" it would not have been possible to operate if the Respondent Alaska had secured personnel from a source other than the Respondent Union, "because we have a contract with the Marine Cooks & Stewards Union, and if we attempted to obtain our men from any other source, we would have ', iolated our contract , and also would have been in serious difficulties ," and (h ) as appears hereinafter, the Respondent Alaska continued to adhere to the December 2 contract after April 11. ^ See Butler Bros. v. N. L. R. B , 134 F 2d 981 (C A. 7), cert. den. 320 U. S. 789 ; Cripples Company Manufacturers v N. L R. B., 106 F 2d 100 ( C. A 8), Kansas City Pouter and Light Company v N L R. B, 111 F. 2d 340 (C. A 8) , Lone Star Gas Coin- pany, 52 NLRB 1058, Kingston Cake Company, Inc., 91 NLRB 447, remanded on other grounds , 191 F 2d 563 (C. A 3) 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alaska on March 10 that PMSU, members were generally reluctant to accept individual assignments, it was not made known to the Respondent Alaska at the time the March 31 application was submitted that any of those individuals named in the application entertained certain mental reservations about going to work for it. The applica- tion, by its terms, was unconditional and was rejected by Respondent Alaska without condition. In these circumstances, it would appear that the conditions which the Respondent Alaska presently asserts it was not required to meet could not have been an operative factor in its rejection of the application.21 We also reject the Respondents' contention that no finding of dis- crimination is proper because the jobs asked for were nbt available at or about the time of the application. Recent Board cases make it clear that, even though no jobs may then have been available, the Act was violated in this case when the Respondent Alaska made it apparent to Rotan by its letter replying to the application that it would not hire the complainants in question because of the recent December 2 con- tract. In the face of the Respondent Alaska's position, Rotan was not required to continue making the useless gesture of continuous application on their behalf to establish the responsibility for the discrimination practiced against them.22 We do, however, find merit in the Respondents' contention, insofar as it relates to the March 31 application, that the complaint should be dismissed as to eight of the complainants, namely, Herbert L. Baker, Harold Krause, Clifford Lattish, Lee Whaley, George C. Heard, William Lande, John Siewick, and Thomas Martin, because on March 31 they were applying for supervisory positions, and were therefore not entitled to the protection of Section 8 (a) (3) of the Act 23 We are of the opinion that, when Congress amended the Act to exclude supervisors from the definition of the term "employee," it thereby denied to those seeking and to those holding supervisory jobs the protection of Section 8 (a) (3). To hold that the protection of this section extends to the former but not to the latter would be to undo at the very threshold of the relationship the exempt status accorded to supervisors by Congress.24 For it would result in the congressional 21 We find it unnecessary to decide what the result herein would have been had those conditions been incorporated in the application. 22 Daniel Hamm Drayage Company, Inc., 84 NLRB 458, enfd . 185 F. 2d 1020 (C. A. 5) ; Arthur G. McKee and Company, 94 NLRB 399; Swinerton and Walberg Company, et at., 94 NLRB 1079 ; General Electric Company, et at., 94 NLRB 1260; Utah Construction Company, supra, Cantrell Co., 96 NLRB 786. 23 Member Murdock does not agree with the dismissal of the complaint as to these persons for the reasons fully set forth in his separate partial dissent. 24 In commenting upon the meaning of the amendment to the Act which excludes super- visors from the definition of "employee," House Report No. 245 on H. R . 3020 , 80th Cong., at p. 17, says : What the bill does is to say . . . That no one, whether employer or employee, need have as his agent one who is obligated to those on the other side , or one whom, for any reason , he does not trust. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 597 regulation of the very act of recruitment of such supervisory per- sonnel. Indeed, Senator Flanders, who took a leading part in shaping the supervisory definition to include those who responsibly direct employees, struck the keynote of congressional concern on this subject in the following remarks (Cong. Rec., May 7, 1947, at p. 4804) : In large measure, the success or failure of a manufacturing business depends on the judgment and initiative of these men [who responsibly direct]. The top management may properly be judged by its success or failure in picking them out and in back- ing them up when they have been properly selected . . . Un- less the employer can hire and discharge, promote, demote and transfer these men, he has lost control of his business. (Emphasis supplied.) Unlike the Trial Examiner and our dissenting colleague, we do not regard Briggs Manufacturing Company, 75 NLRB 569, as controlling in the complainants' favor. That case involved an 8 (4) violation which took place before the 1947 amendments to the Act. Nor can we subscribe to the position of our dissenting colleague that Section 2 (3), in excluding individuals "employed" as supervisors from the coverage of Section 8 (a) (3) of the Act, refers to) those "presently employed" in, and not to those applying for, supervisory positions. Followed to its logical conclusion, this interpretation would extend the Board's jurisdiction to cases involving applicants for jobs as agri- cultural laborers or for employment with a parent or spouse, since these excluded classifications are referred to in this very section in identical language. Clearly, the latter was not the congressional in- tent. It follows, therefore, that the language alluded to above is that of classification, and not of description of a status already achieved. Further, we cannot agree that our decision herein affects adversely the rights of nonsupervisory employees in the particular respect which concerns our dissenting colleague : viz, where a rank and file employee of a particular employer, who applies to his employer for promotion to a supervisory vacancy, is told that he will not receive consideration for the promotion because he has been an active union member. A refusal to accord an actual employee the normal consideration for promotion to a higher position, albeit that of supervisor, based on protected concerted activity during such employment, would clearly be a violation of the rights of nonsupervisory employees.25 ' 25Cf Inter-City Advertising Company of Greensboro, N C, Inc, 89 NLRB 1103. The principle of the case relevant here was not passed upon by the Court in N. L R. B v. Inter- City Advertising Co, 190 F. 2d 420 (C A. 4). Contrary to our dissenting colleague , in answering his hypothetical case we do not draw any distinction between employees of a particular employer and members of the working class in general who are in fact employees within the Act's meaning. In the situation postulated by the dissent , the person involved is an employee by reason of his current employment and is being discriminated against while in that status , whereas the 998666-vol 98-53--39 598 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Accordingly, we conclude that, as of the time of their application for supervisory position on March 31, the eight complainants in ques- tion must be considered as supervisors for purposes of Section 8 (a) (3) of the Act; and we conclude further that, in conditioning the employment of these individuals as it did on April 11, 1949, the Re- spondent Alaska did not discriminate against them in violation of Section 8 (a) (3) of the Act. We shall therefore dismiss the com- plaint in this respect 26 On the basis of all the foregoing, and the entire record, we find that on April 11, 1949, the Respondent Alaska discriminatorily denied employment to all the complainants named in Appendix D of the Intermediate Report, except Herbert L. Baker, Harold Krause, Clif- ford Lattish, Lee Whaley, George C. Heard, William Lande, John Siewick, and Thomas Martin, in violation of Section 8 (a) (3) and $ (a) (1) of the Act, and that the Respondent Union caused the Re- spondent Alaska to discriminate against those complainants, in viola- tion of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.- 11. We agree with the Trial Examiner's finding that on May 12, 1949, the Respondent Alaska unlawfully rejected the application for employment on the Aleutian made by Rotan on May 7 on behalf of the 78 persons whose names appear in Appendix E of the Intermediate Report, thereby violating Section 8 (a) (3) and 8 (a) (1) of the Act, and that the Respondent Union caused such discrimination, in viola- tion of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. Substantially the same defenses are advanced in.connection with the instant application as we were advanced with respect to the March 31 application. In the main, the Respondents argue that (a) the General Counsel failed to make out a prima facie case, and (b) the application was not a bona fide, unconditional one and, at least as it appeared to the Respondent Alaska, called for a violation of the Act. As to all the complainants, we find, on the basis of Rotan's credible testimony, that each complainant had authorized him, by May 7 to seek the specific job requested for him in the application. According to Rotan, the majority of the complainants were contacted about 10 days before May 7. The authorizations of the others appear to have been secured sometime prior thereto, but subsequent to the latter part of December 1948. We find further, in the absence of any persuasive evidence to the contrary, that the complainants were available for eight applicants for employment as supervisors here were denied employment at a time when , as shown above, they were in a nonemployee status under the Act ° Our order that the Respondent Alaska offer employment and award back pay to six of these complainants , namely, Baker, Krause , Whaley, Heard, Lande, and Siewick, is based on the discriminatory rejection of their May 7, application for rank and file jobs, more fully discussed hereinafter. z+ Daniel Hamm Drayage Company , Inc., supra ; Consolidated Western Steel Corporation, supra , Del E Webb Construction Company, supra ; Utah Construction Company, supra. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 599 employment on May 7. Many complainants who appeared at the hearing either corroborated Rotan's testimony as to his authority to act for them, or made plain their availability on the date of the ap- plication. Rotan's testimony indicates that all the complainants were available on May 7. The contention that a prima facie case was not established, is, therefore, without merit. The contention that the May 7 application was not a valid one, but actually designed to further the bargaining position of PMSU or SUP, rests largely on the assertion, also not sustained in the record, that the application was on an "all or none"' basis. While it appears that on March 10 Rotan had sought to aid the petition for certification about to be filed by SUP by suggesting to the Respondent Alaska that it "break out" the Aleutian and fully man it with PMSU members, this suggestion was unequivocally turned down at about that time. And the record otherwise fails to establish that any subsequent appli- cation, including the one on May 7, was similarly qualified or moti- vated. Indeed, we find that the preponderance of the evidence af- firmative establishes that the application was not on an "all or none" basis. Thus, for example, Rotan, who was considered by the Trial Examiner to be a generally credible witness, testified that in his con- versation with Respondent Alaska's labor relations adviser on May -12, at which time the application was rejected, he "repeatedly" asked if the Respondent Alaska "was going to hire any of those men on the list" (Emphasis added). Furthermore, we regard as entirely plausible Rotan's explanation that an applicant was submitted for each available job "because we might as well find out whether we were going to be discriminated against in all ratings." In the light of the foregoing, the circumstance that the application listed one applicant for each nonsupervisory job, or the fact that Rotan hoped to succeed in getting all the jobs requested, lacks controlling significance. And the testimony by some of the complainants that they would not have gone to work except under the circumstances already alluded to, does not, as the Respondents contend, establish that the application was a conditional one. For it is plain from all the above that the May 7 application, like that of March 31, was"submitted on an unconditional basis, with no strings attached. Also, particularly in view of Rotan's conversation with Dobrin, quoted above, the Respondent Alaska's claim that it appeared to it that any compliance with Rotan's demand would have resulted in its violating the Act does not have a convincing ring. In any event, the fact that the application may have appeared to the Respondent Alaska to require the commission of an unfair labor practice cannot serve to absolve it of liability herein, as the Respondent Alaska made it plain by its reply of May 12 that the illegal hiring provisions of the December 2 contract were a motivating factor in its refusal to hire all or any of the applicants. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We conclude that on May 12, 1949, the Respondent Alaska dis- criminatorily denied employment to the complainants listed in Ap- pendix E of the Intermediate Report, in violation of Section 8 (a) (3) and 8 (a) (1) of the Act, and that the Respondent Union caused the Respondent Alaska to discriminate against these complainants, in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act .211 12. The General Counsel and the charging parties Rotan and PMSU have excepted to the Trial Examiner's failure to hold, as alleged in the complaint, that the Respondent PASA and its successor, the Respond- ent PMA, illegally discriminated against complainants herein, and that the Respondent Union unlawfully caused such discrimination. Insofar as the Respondent PASA and the Respondent Union are con- cerned, we find merit in these exceptions. As already shown, in those cases where we have found that the Respondent Alaska and the Respondent American Mail illegally re- fused employment to complainants, the refusal to hire was the proxi- mate result of the discriminatory referral and hiring arrangement provided for in the December 2 contract. Since the Respondent PASA, whom we have found to be an employer within the meaning of the Act, shares responsibility for that unlawful arrangement, by virtue of its execution of the December 2 contract on behalf of the Respondents Alaska and American Mail, and other member com- panies, it must also be held to share the responsibility for the results reasonably to be anticipated.29 We therefore find that, in the cases adverted to above, the Respondent PASA discriminated against em- ployees in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. As to the Respondent PMA, it has already been shown that that Respondent came into existence after the alleged acts of discrimina- tion in this case. In view thereof, and as the Respondent PMA as- sumed the rights, properties, debts, and liabilities of the Respondent PASA, we believe that, without attributing a violation of these sec- tions of the Act to Respondent PMA, we can fully effectuate the poli- cies of the Act by merely requiring the Respondent PMA,.in addition to Respondent PASA, to remedy the unfair labor practices attrib- utable to the Respondent PASA.30 For the same reasons which prompted our finding that the Respond.. ent Union illegally caused the Respondent Alaska and the Respondent American Mail to discriminate against the employees in question, we find that the Respondent Union caused the Respondent PASA to dis- criminate against them, in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 28 Unlike the Trial Examiner, we find it unnecesary to decide whether the result would have been the same had the application been made on an all or none" basis. 29 Waterfront Employers of Washington , 98 NLRB 284 ; cf. Paul W. Speer, Inc., 98 NLRB 212. - 11 Autopart Manufacturing Company, 91 NLRB 80. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 601 The Remedy Having found that the Respondents engaged in the unfair labor practices set forth above, we shall order that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. 1. We have found that the Respondent Alaska and the Respondent PASA discriminated against the c'Qmplainants named in Appendix A and Appendix B hereto on one or more occasions, and that the Re- spondent American Mail and the Respondent PASA discriminated against Thomas J. Howard. We have also found that the Respondent Union caused such discrimination. We shall order that the Respond- ent American Mail offer Howard, and that the Respondent Alaska offer the complainants named in Appendix B, except Campbell, Theusen, Responte, Siebert, Paige, Makemson, Bailey, and Lantz, who are discussed separately herein, immediate employment in the respec- tive positions previously applied for and discriminatorily denied them, or in positions substantially equivalent thereto, without preju- dice to their seniority and other rights and privileges. We shall also order that the Respondent Alaska offer the complainants named in Appendix A, except Campbell and Responte, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges 31 If such employment is not immediately available for all the complain- ants, those employees for whom no employment is available shall be placed on a preferential hiring list, with priority in accordance with a system of seniority or other nondiscriminatory practice heretofore applied by the Respondents in the conduct of their business, and shall thereafter be offered such employment as vacancies arise and before other persons are hired for such work. We shall also order that the Respondent American Mail, the Respondents PASA and PMA, and the Respondent Union jointly and severally make whole Howard, and that the Respondent Alaska, the Respondents PASA and PMA, and the Respondent Union jointly and severally make whole the complain- ants named in Appendix A and Appendix B, except the afore-men- tioned complainants whose cases are separately treated, for any loss of pay suffered as a result of the discrimination against them by pay- ment to each of them of a sum of money equal to what his normal net n By our Order herein, we do not mean to imply that the Respondent Alaska is required to meet all the conditions which some of the complainants testified must exist before they will go to work for it we reject the contention that the announcement made by the Respondent Alaska at the bearing, that it was prepared to give application for employment "bona fide consideration without reference to the preference provisions of the agreement of December 2, 1948," relieved it of any duty to- offer employment to, or make whole, any of the complainants who did not respond thereto. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wages would be to the date of the offer of employment, or placement on such preferential list. The back pay shall be computed in accordance with the formula promulgated in F. W. Woolworth Company, 90 NLRB 289, and the Respondents Alaska, American Mail, PASA, and PMA, and each of them, shall make available to the Board, upon request, all records pertinent to any analysis of the amounts of back pay due. In the cases of those complainants for whom work was not available at the time of their applications for employment, the back pay shall be com- puted from the time when work for them became available, and no complainant who was unable or unwilling to accept employment at such time shall be entitled to back pay. Swinerton and Walberg Company, supra. Because the Trial Examiner did not hold the Respondent PASA responsible for the discriminatory practices against the complainants, or recommend that it and the Respondent PMA, together with the Respondent Alaska, the Respondent American Mail, and the Respond- ent Union, make the complainants whole for the consequences of such discrimination, we shall not hold the Respondents PASA and PMA accountable for any back pay which accrued to the complainants during the period between the issuance of the Intermediate Report and our Decision and Order. Cf. Utah Construction Company, supra. In addition, we shall direct that the Respondent Union, in writing, notify the Respondent American Mail, and furnish copies to the employee involved, that it has no objection to the employment of Thomas J. Howard, and, further, that it notify the Respondent Alaska, and furnish copies to the individuals involved, that it has no objection to the employment of the employees named in Appendixes A and B hereto, except Campbell, Responte, Theusen, Siebert, Paige, Bailey, Makemson, and Lantz. (The Hunkin-Conkey Construction Company, supra.) The Respondent Union shall not be liable for any back pay accruing after 5 days from the date such notices are given. Absent such notification, the Respondent Union shall remain jointly and severally liable with the Respondents Alaska, American Mail, PASA, and PMA, as set forth above, for all the back pay that may accrue. We shall also direct that the Respondent Union, in writing, notify Alaska Fishermen's Union, and furnish copies to the employees in- volved, that it has no objection to the clearance for -employment of those individuals on the April 11, 1949, blacklist. Because of Green's testimony at the hearing that he would not ac- cept a job with the Respondent Alaska unless the ship's entire crew was made up of PMSU members, the Trial Examiner did not recom- mend that the Respondent Alaska make an offer of employment to PACIFIC- AMERICAN SHIPOWNERS ASSOCIATION 603 Green, a discriminatee herein. In this connection, the Respondent Companies point to the testimony of other complainants in question as to their unwillingness to go to work for the Respondent Alaska unless certain conditions obtained . They argue that those com- plainants, like Green, should also be denied the benefit of the normal remedy applied in cases of this type. However, none of the com- plainants, including Green, has taken the position that he would on any terms refuse employment with the Respondent Alaska, and no offer of employment has ever been tendered and refused. Until they are called upon to make an election in the face of an actual offer of employment, we believe that the policies of the Act will be effectuated if the Respondent Alaska, the Respondents PASA and PMA, and the Respondent Union are required to assume full responsibility for the consequences of the discrimination against the complainants, and we shall require the usual offer of employment and make the usual back-pay award.32 In Green's case, however, we shall abate the back pay which accrued during the period between the issuance of the Intermediate Report and this Decision and Order. The Respondent Companies contend that , because Campbell and Responte refused offers of employment made them by the Respondent Alaska during the hearing, neither complainant is entitled to an.order requiring the Respondent Alaska to offer him employment, or an award of back pay for period following his rejection of the employ- ment offer. As already indicated , we agree with this contention. With respect to Campbell , the record shows that on about December 12, 1949, he was offered a job by the Respondent Alaska , pursuant to his request for employment with it, which 'he rejected. The record contains no explanation by Campbell for his conduct on this occasion. As to Responte, the critical facts show that on about November 29, 1949, he asked the Respondent Alaska for a B/R waiter 's job on the Denali and then, upon being offered the job , turned it down. Although Responte testified at the hearing that he was unable to accept the job because of certain physical disabilities, his testimony in that connec- tion was contradictory and wholly unconvincing. Under all the circumstances , including the valid offers of employment made to Campbell and Responte, and the absence of a satisfactory reason for their rejection, we do not believe that it will effectuate the policies of the Act to require the Respondent Alaska to again offer employment to Campbell and Responte . However, we shall order that each of them be made whole for any loss of pay suffered, by reason of the discrimination against him, up to the time the aforementioned offer of employment was rejected by him. 32 Oklahoma Transportation Company, 50 NLRB 907, enfd. 140 F. 2d 509 (C. A. 5). 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bailey, Makemson2, and Paige, in response to job offers made by the Respondent Alaska, reported for work on the Denali on December 1611949. . Shortly after their arrival on the ship, Bailey was assaulted by a person not identified in the record. This assault was reported to the second steward in charge at the time, who promised to "fix" or "get this thing straightened out.". In the meantime, after being threatened with physical harm by another person whose identity is not disclosed by the record, the three complainants left the ship. They then advised the Respondent Alaska of what had happened, and thereafter refused to return to the ship. Lantz applied for, and was offered, a job on the Coastal Monarch by the Respondent Alaska. Upon reporting for work in the ship's galley on December 15,1949, he found the chief cook 33 to be extremely hostile toward him. Lantz reported this fact to Jones, port steward for the Respondent Alaska, who promised to look into the matter. Later the same day, Lantz learned that Jones had visited the ship. However, without again communicating with Jones, Lantz then left the Coastal Monarch because of the chief cook's antagonistic attitude. It is clear from the foregoing that the Respondent Alaska in good faith made a valid offer of employment to Bailey, Makemson, Paige, and Lantz, which the complainants accepted, and then quit for reasons not attributable to the Respondent Alaska, and without affording the Respondent Alaska an opportunity to correct the conditions unsatisfactory to them. In view thereof, we shall require only that each of them be made whole for any loss of pay suffered, by reason of the discrimination against him, up to the date of his last employ- ment referred to above with the Respondent Alaska. As Siebert died in May 1949, we shall merely require that his per- sonal representatives be made whole for any loss of pay, or other benefits, the complain4nt may have suffered, by reason of the discrimi- nation against him, from the date of such discrimination to the date when he became physically unable to work. About 3 weeks before December 1, 1949, the date he testified at the hearing, Theusen started a poultry business. Approximately 2 weeks after entering into that business, he advised the Respondent Alaska that he would not accept employment with it "at the present time." And, at the hearing, Theusen took the position that "under present circumstances right now I would not consider it probably to the best well being of myself" to go to sea. In view of these facts, and Theusen's additional testimony that on January 5, 1949, the date his application for employment was discriminatorily rejected, he "would have gone on any job that . . . [he] could have gotten," we as It is not contended , nor does the record establish , that this individual was a supervisor within the meaning of the Act. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 605 find that, because of his poultry business, Theusen has abandoned any desire to go to work for the Respondent Alaska. We shall there- fore merely order that he be made whole for any loss of pay suffered by reason of the discrimination against him from the date of such discrimination to the date on which he communicated his unwilling- ness to work for the Respondent Alaska. Contrary to the Respondents, the fact that complainants may have participated in the strike called by the Respondent Union in Septem- ber 1948, or may have, as members of PMSU, acquiesced in PMSU's hiring hall system, does not, in view of our findings above, bar such a remedy as we have employed herein. The Respondents contend that they were not allowed an opportunity at the hearing to introduce certain additional evidence bearing on the nature of the remedial order to be utilized with respect to the discriminatees. We shall not, however, require any additional evi- dence at this time, inasmuch as the parties may be able amicably to adjust this entire matter when compliance with our Order is under- taken. This is without prejudice to the right of the Respondents, in the event agreement is not reached, to apply for leave to adduce such additional evidence as is relevant,34 2. We have found that, by reason of the December 2 contract itself, the Respondent Companies violated Section 8 (a) (3), 8 (a) (2), and 8 (a) (1) of the Act, and that the Respondent Union thereby violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. We shall therefore order that the Respondent Union and the Respond- ent Companies cease and desist from giving effect to the contract, or any modification, extension, supplement, or renewal thereof, unless and until the Respondent Union has been certified by the Board. Nothing in our Order, however, shall be deemed to require Respond- ent Companies to vary or abandon any substantive provisions of such contract, or to prejudice the assertion by employees of any rights they may have acquired thereunder. We shall also order the Respond- ent Companies to withdraw and withhold all recognition from the Respondent Union unless and until the Respondent Union has been certified by the Board. The Respondent Union contends that it would not effectuate the policies of the Act to enter an order including the above provisions. In support of this 'contention, the Respondent Union claims that on August 18, 1950, after the issuance in July 1950, of the Board's deci- sion in National Union of Maurine Cooks and Stewards, the Decem- ber 2 contract was supplemented so as to render it legal in its entirety, and the Board, after being advised of that fact, and the Respondent " Berkshire Knitting Mills, 46 NLRB 955, enfd as mod. 139 F . 2d 134 ( C. A. 3), cert. den 322 U. S 747; Detroit Gasket and Manufacturing Company, 78 NLRB 670. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's compliance with the other affirmative action required by that decision, held the Respondent Union to be in complete compliance with the requirements of the order in the afore-mentioned case 36 It is plain that the Respondent Union's argument in the foregoing connection overlooks the crucial fact that, unlike the former case, the complaint here alleged and the Trial Examiner found, as do we, that the Respondent Companies, on acount of the December 2 contract, contributed illegal support to the Respondent Union, in violation of the Respondent Companies, on account of the December 2 contract, not only of the presence of the hiring provisions which go beyond the statute, but in the numerous incidents detailed above of enforcement of the illegal contract. It would plainly not effectuate the policies of the Act to permit the Respondent Union to continue to enjoy a repre- sentative status which it has strengthened by virtue of the Respond- ent Companies' illegal support.36 This being so, it is equally clear that here the December 2 contract, even as supplemented, must be canceled in its entirety.37 3. In view of our finding that the Respondent PASA, the Re- spondent American Mail, and the Respondent Alaska violated the Act not only by entering into' and performing the illegal agreement, but by discriminating against specified applicants for employment, we shall order that those Respondents, and the Respondent PMA (successor to the Respondent PASA), cease and desist not only from the unfair labor practices found, but also from in any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act.38 For the same reason, a correspondingly broad order shall be entered against the Respondent Union. As to the Respondent P & T, we have found that it violated the Act solely by agreeing to the illegal contract. The allegation in the complaint that it discriminated against certain named individuals was dismissed by the Trial Examiner, and no exceptions were taken to the dismissal. In these circumstances, we believe that the issuance of a narrow order against the Respondent P & T will effectuate the policies of the Act. 351n that case , wherein the Respondent Union alone was a party respondent and the legality of the identical contract involved in the instant case was in issue, the Respondent Union was ordered , inter alia, to cease and desist from giving effect to the contract's illegal provisions. 36 Julius Resnick, Inc., supra. 87 See Salant ,f Salant, Inc., 88 NLRB 816, where a similar remedy was employed even though the illegal union-security clause of the contract there in question had, prior to the Board's decision in the case , been eliminated from. the contract. As we have assumed for purposes of this decision the existence of the facts which the Respondent Union seeks to prove in a, reopened hearing, and found them to be without controlling significance , we hereby deny the Respondent Union's motion to remand for that purpose ss Dell E. Webb Construction Company, supra. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 607 Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : I. The Respondent, Pacific American Shipowners Association, and its successor and assign, the Respondent Pacific Maritime Association, their officers, agents, successors, and assigns, shall: a. Cease and desist from : (1) Recognizing National Union of Marine Cooks and Stewards, or any successor thereto, as the representative of any employees covered by the December 2, 1948, contract, and any supplements or amendments thereof, for the purposes of dealing with them concern- ing grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment, unless and until said organization shall have been certified by the Board. (2) Performing or giving effect to their contract of December 2, 1948, with National Union of Marine Cooks and Stewards, or to any modification, extension, supplement, or renewal therof, or to any other contract, agreement, or understanding affecting such employees en- tered into with said organization relating to grievances, labor dis- putes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said organization shall have been certified by the Board. (3) Entering into, renewing, or enforcing any agreement with any labor organization which expressely or in its performance requires membership in any labor organization or prevents its members from securing or retaining employees on a nondiscriminatory basis, except to the extent authorized by Section 8 (a) (3) of the Act. (4) Encouraging membership in National Union of Marine Cooks and Stewards, or any other labor organization of the employees of their members, or discouraging membership in Pacific Marine Stew- ards Union, AFL, or any other labor organization of the employees of their members, by discriminating in respect to the hire or tenure of employment or any term or condition of employment of any em- ployees (including applicants for employment) of its members, except to the extent authorized by Section 8 (a) (3) of the Act. (5) In any other manner interfering with, restraining, or coercing employees of their members in the exercise of the rights guaranteed them in Section 7 of the Act, or the right to refrain therefrom, except to the extent that such rights may be affected by an agreement requir- ing membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) Withdraw and withhold all recognition from National Union of Marine Cooks and Stewards as the representative of any of the employees covered by the December 2, 1948, contract, and any supple- ments or amendments thereof, for the purposes of dealing with them concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said organization shall have been certified by the Board. (2) Post at their respective offices copies of the notice attached hereto and marked "Appendix D." 39 Copies of said notices, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by their respective representatives, be posted by the Respondents and each of the respondent Employers immedi- ately upon receipt thereof, and be maintained by them for a period of ,sixty (60) consecutive days thereafter, in conspicuous places, includ- ing all places where notices to the employees of their members are customarily posted. Reasonable steps shall be taken by the Respond- ents to insure that said notices are not altered, defaced, or covered by any other material. (3) Notify the Regional Director for the Nineteenth Region, in writ- ing, within ten (10) days from the date of this Order, what steps they have taken to comply herewith. II. The Respondent, Pope & Talbot, Inc., its officers, agents, succes- sors, and assigns, shall : a. Cease and desist from : (1) Recognizing National Union of Marine Cooks and Stewards, or any successor thereto, as the representative of any of its employees covered by the December 2, 1948, contract, and any supplements or amendments thereof, for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said organization shall have been certified by the Board. (2) Performing or giving effect to its contract of December 2, 1948, with National Union of Marine Cooks and Stewards, or to any other contract, agreement, or understanding affecting such employees entered into with said organization relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment, unless and until said organization shall have been certified by the Board. (3) Entering into, renewing, or enforcing any agreement with any labor organization which expressly or in its performance requires mem- bership in any labor organization or prevents it from securing or 39 In the event that this Order or any Order herein 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." PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 609 retaining employees on a nondiscriminatory basis, except to the extent authorized by Section 8 (a) (3) of the Act. (4) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act, or the right to refrain therefrom, except to the extent that such right may be effected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. b. Take the following affirmative action; which the Board finds will effectuate the policies of the Act : (1) Withdraw and withhold all recognition from National Union of Marine Cooks and Stewards as the representative of any of its em- ployees covered by the December 2, 1948, contract, and any supplements or amendments thereof, for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until *said organization shall have been certified by the Board. (2) Post at its offices and in the stewards department of all vessels operated by it copies of the notice attached hereto and marked "Appen- dix E." Copies of said notices, to be furnished by the Regional Di- rector for the Nineteenth Region, shall, after being duly signed by a duly authorized officer or agent, be posted by it immediately upon receipt thereof, and be maintained for a period of sixty (60) consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (3) Notify the Regional Director for the Nineteenth Region, in writ- ing, within ten (10) days from the' date of this Order, what steps it has taken to comply herewith. III. The Respondent, American Mail Line, Ltd., its officers, agents, successors, and assigns, shall : a. Cease and desist from : (1) Recognizing National Union of Marine Cooks and Stewards, or any successor thereto, as the representative of any of its employees covered by the December 2, 1948, contract, and any supplements or amendments thereof, for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said organization shall have been certified by the Board. (2) Performing or giving effect to its contract of December 2, 1948, with National Union of Marine Cooks and Stewards, or to any modifi- cation, extension, supplement, or renewal thereof, or to any other con- tract, agreement, or understanding affecting such employees entered ,610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into with said organization relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment, unless and until said organization shall have been certified by the Board. (3) Entering into, renewing, or enforcing any agreement with any labor organization which expressly or in its performance requires mem- bership in any labor organization or prevents it from securing or retaining employees on a nondiscriminatory basis, except to the extent authorized by Section 8 (a) (3) of the Act. (4) Encouraging membership in National Union of Marine Cooks and Stewards, or any other labor organization of its employees, or discouraging membership in Pacific Marine Stewards Union, AFL, or any other labor organization of its employees, by discriminating in respect to the hire or tenure of employment or any term or condition of employment of any of its employees or applicants for employment, except to the extent authorized by Section 8 (a) (3) of the Act. (5) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act, or the right to refrain therefrom, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Withdraw and withhold all recognition from National Union of Marine Cooks and Stewards as the representative of any of its employees covered by the December 2, 1948, contract, and any sup- plements or amendments thereof, for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said organization shall have been certified by the Board. (2) Offer to Thomas J. Howard immediate employment in the position previously applied for and discriminatorily denied him or a substantially equivalent position, without prejudice to his seniority or other rights and privileges and, if no such positions are presently available, place him upon a preferential hiring list and thereafter offer him employment as it becomes available, in the manner provided for in the section entitled "The Remedy." (3) Post at its offices and in the stewards department of all vessels -operated by it copies of the notice attached hereto and marked "Ap- pendix E." Copies of said notice, to be furnished by the Regional Di- rector for the Nineteenth Region, shall, after being duly signed by a duly authorized officer or agent, be posted by it immediately upon :receipt thereof, and be maintained by it for a period of sixty (60) PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 611 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (4) Notify the Regional Director for the Nineteenth Region, in writing, within ten (10) days from the date' of this Order, what steps they have taken to comply herewith. IV. The Respondent, Alaska Steamship Company, its officers, agents, successors, and assigns, shall : a. Cease and desist from : (1) Recognizing National Union of Marine Cooks and Stewards, or any successor thereto, as the representative of any of its employees covered by the December 2, 1948, contract, and any supplements or renewals thereof, for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said organization shall have been certified by the Board. (2) Performing or giving effect to its contract of December 2, 1948, within National Union of Marine Cooks and Stewards, or to any modification, extension, supplement, or renewal thereof, or to any other contract, agreement, or understanding affecting such employees entered into with said organization relating to grievances, labor dis- putes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said organization shall have been certified by the Board. (3) Entering into, renewing, or enforcing any agreement with any labor organization which expressly or in its performance requires membership in any labor organization or prevents it from securing or retaining employees on a nondiscriminatory basis, except to the extent authorized by Section 8 (a) (3) of the Act. (4) Encouraging membership in National Union of Marine Cooks and Stewards, or any other labor organization of its employees, or discouraging membership in Pacific Marine Stewards Union, AFL, or any other labor organization of its employees, by discriminating in respect to the hire or tenure of employment or any term or condition of employment of any of its employees or applicants for employment, except to the extent authorized by Section 8 (a) (3) of the Act. (5) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act, or the right to refrain therefrom, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Withdraw and withhold all recognition from National Union of Marine Cooks and Stewards as the representative of any of its employees covered by the December 2, 1948, contract, and any supple- ments or renewals thereof, for the purposes of dealing with it concern- ing grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said organization shall have been certified by the Board. (2) Offer to all the employees named in Appendix A hereto, except Campbell and Responte, immediate and full reinstatement to their former or substantially equivalent positions, and to all the employees named in Appendix B hereto, except Campbell, Theusen, Responte, Siebert, Paige, Makemson, Bailey, and Lantz, immediate employment in the respective positions previously applied for and discriminatorily denied them, or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; and, if no such posi- tions are presently available, place them upon a preferential hiring list and thereafter offer them employment as it becomes available, in the manner provided for in the section entitled "The Remedy." (3) Post at its offices and in the stewards department of all vessels operated by it copies of the notice attached hereto and marked "Ap- pendix F." Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by a duly authorized officer or agent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (4) Notify the Regional Director for the Nineteenth Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. V. The Respondent, National Union of Marine Cooks and Stewards, its officers, representatives, agents, successors, and assigns, shall: a. Cease and desist from : (1) Performing or giving effect to its contract of December 2, 1948, with Pacific American Shipowners Association, and its employer members or successors, or to any modification, extension, supplement, or renewal thereof, or to any other contract, agreement, or under- standing affecting employees covered by the aforementioned contract entered into with said employers relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 613 employment, unless and until it shall have been certified by the Board. (2) Causing or attempting to cause the afore-mentioned employers, their officers, agents, successors, or assigns, to discriminate against their employees or applicants for employment in violation of Section 8 (a) (3) of the Act. (3) In any other manner restraining or coercing employees of the aforementioned employers, their successors, or assigns, in the exercise of the rights guaranteed them in Section 7 of the Act, or the right to refrain therefrom, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Notify American Mail Line Ltd., in writing, and furnish copies to the employee involved, that it has no objection to the em- ployment of Thomas J. Howard, and notify Alaska Steamship Com- pany in writing and furnish copies to the individuals involved, that it has no objection to the employment of the employees named in Appendix A and Appendix B hereto, except Campbell, Responte, Theusen, Siebert, Paige, Bailey, Makemson, and Lantz. (2) Notify Alaska Fishermen's Union, in writing, and furnish copies to the employees involved, that it has no objection to the clear- ance for employment of the individuals on its April 11, 1949, blacklist. (3) Post in conspicuous places at its hiring halls, and all places where notices to members are customarily posted, copies of the notice attached hereto and marked "Appendix G." Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by a duly authorized officer or agent, be posted by it immediately upon receipt thereof, and maintained for a period of at least sixty (60) consecutive days thereafter. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (4) Mail to the Regional Director for the Nineteenth Region signed copies of the notice attached hereto and marked "Appendix G," for posting, the members of Pacific American Shipowners Association and Pacific Maritime Association who are parties to the December 2. 1948, contract willing, at their respective offices and in the stewards department of all vessels operated by them, in places where notices to employees are customarily posted. The notices shall be posted for a period of sixty (60) consecutive days thereafter. Copies of said notices, to be furnished by the Regional Director for the Nine- 998666-vol. 98-53-40 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD teenth Region, shall after being signed as provided in paragraph 4 (b) (3) of this Order, be forthwith returned to the Regional Director for said posting. (5) Notify the Regional Director for the Nineteenth Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. 5. Respondents Pacific American Shipowners Association and Pacific Maritime Association, their officers, agents, successors, and assigns, Alaska Steamship Company, its officers, agents, successors, and assigns, and National Union of Marine Cooks and Stewards, its officers, representatives, agents, successors, and assigns, shall jointly and severally make whole the employees named in Appendix A and Appendix B attached hereto, except Siebert, for any loss of pay they may have suffered because of the discrimination against them, in the manner set forth in the section entitled "The Remedy," above. The afore-mentioned Respondents shall also jointly and severally make whole the personal representatives of Siebert for any loss of pay, bonuses, emoluments and insurance or other death benefits he may have suffered because of the discrimination against him, in the manner set forth in the section entitled "The Remedy," above. In addition, the Respondent American Mail Line, Ltd., its officers, agents, succes- sors, and assigns, and the afore-mentioned Respondents, except Alaska Steamship Company, shall jointly and severally make whole Thomas J. Howard for any loss of pay he may have suffered because of the dis- crimination against him by the Respondent American Mail. Upon request, the afore-mentioned employers shall make available to the Board or its agents, for examination and copying, all payroll records and reports, and all other records necessary to analyze the amount of back pay due and the right to employment under this Order. IT IS FURTHER ORDERED that the complaint, insofar as it alleges viola- tions of the Act different from those found in this Decision and Order, be, and it hereby is, dismissed. MEMBER MURDOCK, dissenting in part : Although I am in agreement with my colleagues as to the proper disposition of a major portion of the issues in this case, I believe that the majority opinion, is mistaken in several instances. My primary concern is with what I regard as an erroneous interpretation of the statute and Board precedent relied upon in the majority's dismissal of the complaint with respect to eight applicants for supervisory posi- tions whose names were included in the list of 92 persons on whose behalf Rotan applied for employment with Respondent Alaska on March 31, 1949. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 615 The majority opinion bases its dismissal of the complaint as to these eight individuals on the ground they, as applicants for super- visory positions, are not within the statutory definition of "employees" and are thus outside the protection of the Act. It is tacitly conceded by the majority that if such applicants were "employees" within the definition of the Act, the complaint would be well founded as to their denial of employment. As noted in the majority opinion, the March 31, 1949, application, insofar is it covered names of former. employees of Respondent Alaska, was for employment in the job classification last held. As these eight men had been chief stewards in their last employment with Respondent Alaska, as to them the application was necessarily specified to be for employment in thab supervisory job classification, 40 but the application was not limited to any particular vessel. There can be no question with respect to most of these eight individuals, that there was no existing employment relationship with Respondent Alaska at the time of the March 31 application, nor is it contended by* the majority that there was. Lattish and Heard in fact were last employed by Respondent Alaska in 1945, Siewick in 1947, and ships on which they held berths had not even been operated by Respondent Alaska since 1947. Whaley was last employed in June 1948. (The strike had begun in September and ended in December 1948.)' Although not treating these men other than as members of the working class generally, the position of the majority is simply that individuals " seeking" as well as those "holding" supervisory jobs are excluded from the definition of "employees" in the Act, and hence may be discriminated against with impunity. This position is not in accord with the terms of the Act or with the Board's prior interpretation made thereunder. In defining the term "employee," Section 2 (3) of the amended Act excludes from that classification "any individual employed as a super- visor." (Emphasis added.) Section 2 (11) of the Act, in turn, defines the term "supervisor" as "any individual having authority, in the interest of the employer . . ." (Emphasis added). It .seems patent, therefore, that the Act excludes as supervisors, only' those individuals presently employed by, and possessing authority to act for, a particular employer. This conclusion, dictated by the 40 Although the application was so worded , realistically I believe these men would have accepted nonsupervisory jobs had they been offered them The record indicated that there Is considerable fluctuation between supervisory and nonsupervisory jobs in the steward's department. A man may ship as a chief steward on one vessel and in a nonsupervisory position on his next ship Note that six of these same eight individuals were included in Rotan's May 7, 1949, application for employment in rank -and-file jobs. 43 Baker, Lande , Martin and Krause had been in the employ of Respondent Alaska at the beginning of the strike . However, the Respondent never operated the ships again on which Baker and Lande had berthed Martin's last ship had been outfitted with a new crew and sailed before the March 31, 1949, application. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clear wording of the statute, was adopted by the Board in the Briggs Manufacturing Company case,42 where it was held that an applicant for a supervisory position whose last employment with the company had been as a supervisor was a member of the-working class and "did not acquire the status of a supervisory employee of the respondent until he was hired." The majority opinion seeks to distinguish that case on the ground that it involved a violation which took place before the statute 'vas amended to exclude supervisors' from the definition of "employees." However, the Board there took cogni- zance of the Employer's contention, that as supervisors are not "em- ployees" under the amended Act, which was in effect when the Board considered and decided the case, Quatro as an applicant for a super- visory position should not be accorded the protection of the Act and the case should be dismissed. The Board chose to dispose of the contention first on the ground that an applicant for a supervisory job is not a supervisor. It was only on a "moreover, even assuming arguendo" supervisory status at the time of application basis that the Board adverted to the fact that the discrimination took place under the Wagner Act when supervisors were "employees." In the instant case, there, is no question that the applicants were not employed as supervisors and did not possess authority to act in the interest of the Respondent Alaska at the time the discrimination against them took place. As applicants they are not and were not supervisors as that term is defined in the Act but, rather, members of the working class entitled to the statute's protection against a dis- criminatory denial of employment. The majority decision, indeed, does not accord the status of supervisors to these men but states that they, as applicants, were at the "very threshold" of assuming that authority. The statute contains no definition or justification for the establishment of this third nebulous category somewhere between the status of supervisor and "employee." To create it and then extend by administrative fiat the statutory exemption accorded supervisors to such individuals is inconsistent with the plain language of the statute. It is likewise contrary to the well established principle of . statutory construction that exemptions from remedial legislation shall be constrictly construed. Furthermore, I believe that Congress' action emphasizing its intent not to interfere with the natural right of super- visors to join unions, by providing in Section 14 (a) of the Act that "Nothing herein shall prohibit any individual employed as a super- visor from becoming or remaining a member of a labor organiza- tion ..." is not without some significance. If Congress was thus moved to give explicit recognition t6 the natural right of supervisors to joie 42 75 NLRB 569. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 617 unions (even while withdrawing legal sanctions to protect the exercise of such a right), I cannot believe that Congress would have intended to deny to persons who are undeniably within the definition of "em- ployees" under the Act, the protection accorded "employees" against discrimination in their right to join or refrain from joining unions, simply because such "employees" aspire to become supervisors 43 I would have thought that the doctrine announced today by the majority-that an applicant for a supervisory job removes himself from "employee" status and may be discriminated against as a super- visor-would logically and necessarily include the case of a rank-and- file employee who applies to his own employer for promotion to a supervisory vacancy. This would mean the employer would be free to tell the applicant that he had been rejected because the employer doesn't like men who have been active union members for supervisors. The seriously damaging and discouraging effect on union activity of making employees aware that union activity will disqualify them for promotion to supervisory levels is obvious. While I am therefore relieved to know that the majority would abandon the doctrine of this case as between a rank-and-file employee and his own employer. I submit that such a result would be inconsistent with the principle here laid down and predicated on distinctions heretofore rejected as having no validity. It presupposes that applicants for supervisory jobs who are presently employed are in a different position from those who (as in this case) are not presently employed by the discriminating employer, with respect to protection from discrimination in hire. This is contrary to the consistent and long-established holding of the Board and the courts, that the Act does not draw any distinction between employees of a particular employer and members of the working class in general (who are embraced in the definition of "employee" in Section 2 (3) of the Act), with respect to protection from discrimination in hire 44 The majority significantly fails to point out any basis for such a distinction. For the foregoing reasons I would find that the eight applicants for supervisory positions on March 31, 1949, were "employees" under the 41I do not deem it necessary at this time to consider whether the status of applicants for jobs as agricultural laborers or domestics , or for employment with a parent or spouse, is the same or different from that of applicants for supervisory jobs. The Board did not find it necessary to do so when it decided in the Briggs case that applicants for supervisory jobs are not supervisors The fact that the majority has found it necessary to reach out to prejudge such cases which are not now before us to provide a rationale for the result reached (added to one bit of legislative history of doubtful significance ), seems to me merely to emphasize the dearth of substantial support for their establishment of this new area of exemption 44 See Phelps Dodge Corp v. N. L. R. B., 313 U. S. 177; Briggs Manufacturing Company, 75 NLRB 569 ; John Hancock Mutual Life Insurance Company, 92 NLRB 122, 133 , enforced 191 F. 2d 483 (C. A. D. C ). 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act and that the Respondent Alaska violated Section 8 (a) (3) by discriminatorily denying them employment 45 I join with my colleagues in finding that the execution and enforce- ment of the December 2, 1948, contract by the Respondent Union constituted a violation of Section 8 (b). (1) (A) and Section 8 (b) (2) because of its illegal preferential hiring provisions. The Trial Ex- aminer found, and the Board unanimously agrees, that the distribu- tion of a blacklist to the MCS branches was a facet of the enforcement of that contract. It is further agreed that this distribution to the MCS branches did not constitute a separate violation because it was an integral part of conduct already found violative of the Act. The distribution of the same blacklist to the AFU, it is also agreed, was not a,violation of Section 8 (b) (2). The majority decision, however, finds that the sending of the blacklist to AFU is a separate violation of Section 8 (b) (1) (A). I must disagree with this last conclusion. In my opinion, this action of the Respondent Union was clearly the same type of effectuation of an illegal contract which we find not to constitute a separate violation in the instance of the MCS branches. On the other hand, it is elementary that the successful effectuation of the contract when threatened. by the activity of dissident members required an appeal to all sympathetic ears to refrain from supporting such activity. The blacklist was motivated and executed as a method of enforcing and implementing the contract. Accordingly, - an in- trinsic part of conduct already found to conflict with Section 8 (b) (1) (A) and Section 8 (b) (2), I do not believe it constitutes or merits finding as a separate violation of the Act. Finally, I do not believe the record or the majority opinion offers substantial reasons for overruling the Trial Examiner's recommenda- tions that the Respondent Alaska be required to offer employment to Bailey, Makemson, Paige, Lantz, and Theusen. Appendix A John O. Baine Edna M. Bausch Robert D. Bessette Carol E. Campbell Alberto W. Charlesworth John Childs Joseph B. Cline Howard W. Cooney Dewey Al. Erlwein Francis J. Forde W. S. Francis Robert C. Friend 41 Inasmuch as the majority of my colleagues do not agree with this conclusion, the question as to the appropriate remedy for such a violation becomes academic. However, it may be noted that the Board, in Inter-City Advertising Company/ of Greensboro, N. C., Inc., 89 NLRB 1103 , reversed on other grounds , 190 F 2d 420 ( C A. 4) noted that "The Board continues to have power under the amended Act, as it clearly had before its enactment, to require the reinstatement with back pay of a supervisor [ discharged under certain conditions ]." The power to order employment with back pay in the instant situation would clearly also be present PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 619 Thomas C. Harris Harley E. Krone Louis Larsen James Ralph Mann Thomas C. McCaffrey Hugh McIntyre George J. O'Leary Millard Paisley John W. Patterson George Resporite Virgil J. Rogers Clarence E. Rothaus John W. Smoczyk James M. Triana 0. Pedro Villabol Appendix B George Arnold Alvin Bailey John O. Baine Herbert L. Baker B. F. Barrett Edna Bausch Dale Becks Don Bickford Charles Birdsall Elmer Blanes G. C. Boettiger Herman Bolst Gerald Bosley Carol E. Campbell Alberto W. Charlesworth John Childs Burr D. Cline Joseph B. Cline Homer Cole Howard W. Cooney Harold S. Darling George Davey Harry Doucette Eugene A. Douglas H. Dean Douglas Howard Dow John R. Dyer Dewey M. Erlwein Francis J. Forde Donald Foster W. S. Francis Robert C. Friend William C. Game Joseph Green Thomas C. Harris William Harris George C. Heard Fred Hempleman Ernest Henry Herbert Hill Thomas Howard William Jenkins Robert E. Jewell Arnold W. Johnson Frank R. Johnson Charles L. Johnson Charles Johnston A. L. Jones Art D. King Harold Krause Harley E. Krone Frank Lachica William Lande Percy Landrigan Marvin, E. Lantz Louis Larsen Cyrus Lord Paul Lund Norman Maginn A. L. Makemson James Ralph Mann A. McAlvey Hugh McIntyre Thomas McMannus Marshall R. McMonagle William B. Miller C. C. Moody Charles Mosher 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD George J. O'Leary Harold Paige Bernard M. Paluck John W. Patterson Leroy Pierson Frank C. Ponce Clarence O. Reese George Responte Virgil J. Rogers Jack Roper Dan J. Rotan Don L. Rotan Charles E. Rothaus Mathias Sabo Henry Schuchard Frank Schulpeck Edward Siebert John Siewick Earnest Shearer Albert Sirriani George A. Smith Leslie B. Smith John W. Smoczyk Fred M. Starks Ralph J. Starnes Jack Taylor Lester E. Taft Louis Thuesen James M. Triana Don W. Tyler Daniel Varady O. Pedro Villabol Peter Wallrop Lee Whaley Appendix C NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify the employees of our members that : WE WILL withdraw and withhold all recognition from the NATIONAL UNION OF MARINE COOKS AND STEWARDS as the repre- sentative of any employees covered by our December 2, 1948, con- tract, or any supplements or amendments thereof, for the purposes of dealing with us concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other con- ditions of employment, unless and until said Union shall have been certified by the National Labor Relations Board. WE WILL cease performing or giving effect to our contract of December 2, 1948, with said Union covering employees of our members, or to any modification, extension, supplement, or re- newal thereof, or to any other contract, agreement or understand- ing affecting such employees entered into with said Union relat- ing to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said Union shall have been certified by the National Labor Rela- tions Board. WE WILL NOT otherwise interfere with the representation of employees of our members through a labor organization of their own choosing. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 621 WE WILL NOT enter into, renew, or enforce any agreement with any labor organization which expressly, or in its performance, requires membership in any labor organization or prevents our members from securing or retaining employees on a nondiscrimi- natory basis, except to the extent authorized by Section 8 (a) (3) of the Act. WE WILL NOT encourage membership in the above-named Union, or in any other labor organization of the employees of our mem- bers, or discourage membership in PACIFIC MARINE STEWARDS UNION, AFL, or in any other labor organization of the employees of our members, by discriminating in respect to the hire or tenure of employment or any term or condition of employment of any employees (including applicants for employment) of our mem- bers, except to the extent authorized by Section 8 (a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees of our members in the exercise of the rights guaranteed them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a. labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL make whole the following named employees for any loss of pay suffered as a. result of the discrimination against them : George Arnold Alvin Bailey John 0. Baine Herbert L. Baker B. F. Barrett Edna Bausch Dale Becks Robert D. Bessette Don Bickford Charles Birdsall Elmer Blanes G. C. Boettiger Herman Bolst Gerald Bosley Carol E. Campbell Alberto W. Charlesworth John Childs Burr D. Cline Joseph B. Cline Homer Cole Howard W. Cooney Harold S. Darling George Davey Harry Doucette Eugene A. Douglas H. Dean Douglas Howard Dow John R. Dyer Dewey M. Erlwein Francis J. Forde Donald Foster W. S. Francis Robert C. Friend William C. Game Joseph Green Thomas C. Harris William Harris George C. Heard Fred Hemplemen Ernest Henry Herbert Hill Thomas Howard 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD William Jenkins Robert E. Jewell Arnold W. Johnson Frank R. Johnson Charles L. Johnson Charles Johnston A. L. Jones Art D. King Harold Krause Harley E. Krone Frank Lachica William Lande Percy Landrigan Marvin E. Lantz Louis Larsen Cyrus Lord Paul Lund Norman Maginn A. L. Makemson James Ralph Mann A. McAlvey Thomas C. McCaffrey Hugh McIntyre Thomas McMannus Marshall R. McMonagle William B. Miller G. C. Moody Charles Mosher George J. O'Leary Harold Paige Millard Paisley Bernard M. Paluck John W. Patterson Leroy Pierson Frank C. Ponce' Clarence O. Reese George Responte Virgil J. Rogers Jack Roper Dan J. Rotan Don L. Rotan Clarence E. Rothaus Mathias Sabo Henry Schuchard Frank Schulpeck John Siewick Ernest Shearer Albert Sirriani George A. Smith Leslie B. Smith John W. Smoczyk Fred M. Starks Ralph J. Starnes Jack Taylor Lester E. Taft Louis Theusen James M. Triana Don W. Tyler Daniel Varady 0. Pedro Villabol Peter Wallrop Lee Whaley WE WILL also make whole the personal representatives of Edward Siebert for any loss of pay, bonuses, emoluments, and insurance or other death benefits suffered as a result of the discrimination. All employees of our members are free to become, remain, or refrain from becoming or refraining, members in good standing of the above-named union, or any other labor organization, except to the extent that such right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. -------------------------------- Employer. By -------------------------------- (Representative ) (Title) Dated------------------ PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 623 This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix D NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL withdraw and withhold all recognition from the NATIONAL UNION OF MARINE COOKS AND STEWARDS as the repre- sentative of and of our employees covered by our December 2, 1948, contract, or any supplements or amendments thereof, for the purposes of dealing with us concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other con- ditions of employment, unless and until said Union shall have been certified by the National Labor Relations Board. WE WILL cease performing or giving effect to our contract of December 2, 1948, with said Union covering our employees, or to any modification, extension, supplement or renewal thereof, or to any other contract, agreement or understanding affecting such employees entered into with said Union relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said Union shall have been certified by the National Labor Relations Board. WE WILL NOT otherwise interfere with the representation of our employees through a labor organization of their own choosing. WE WILL NOT enter into, renew, or enforce any agreement with any labor organization which expressly or in its performance requires membership in any labor organization or prevents us from securing or retaining employees on a nondiscriminatory basis, except to the extent authorized by Section 8 (a) (3) of the Act. NE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as author- ized in Section 8 (a) (3) of the Act. All our employees are free to become, remain, or refrain from becoming or remaining, members in good standing of the above-named Union, or any other labor organization, 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD except to the extent that such right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. POPE & TALBOT, INC., Employer. By -------------------------- (Representative) (Title) Dated -------------------- This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix E NOTICE TO ALL EMPLOYEES 'Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL withdraw and withhold all recognition from the NATIONAL UNION OF MARINE COOKS AND STEWARDS as the repre- sentative of any of our employees covered by our December 2, 1948, contract, or. any supplements or amendments thereof, for the purposes of dealing with us concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other condi- tions of employment, unless and until said Union shall have been certified by the National Labor Relations Board. WE WILL cease performing or giving effect to our contract of December 2, 1948, with said Union covering our employees, or to any modification, extension, supplement or renewal thereof, or to any other contract, agreement or understanding affecting such employees entered into with said Union relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said Union shall have been certified by the National Labor Relations Board. WE WILL NOT otherwise interfere with the representation of our employees through a labor organization of their own choosing. WE WILL NOT enter into, renew, or enforce any agreement with any labor organization which expressly or in its performance re- quires membership in any labor organization or prevents us from securing or retaining employees on a nondiscriminatory basis, except to the extent authorized by Section 8 (a) (3) of the Act. WE WILL NOT encourage membership in the above-named union, or in any other labor organization of our employees, or discourage membership in the PACIFIC MARINE STEWARDS UNION, AFL, PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 625 or in any other labor organization of our employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment, except to the extent au- thorized by Section 8 (a) (3) of the Act. WE WILL NOT in any other manner interfere wish, restrain, or coerce our employees in the exercise of the right guaranteed them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER to Thomas J. Howard immediate employment in the position previously applied for and discriminatorily denied him, or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination. If no such positions are presently available, we will place him upon a preferential hiring list and thereafter offer him employment as it becomes available and before other persons are hired for such work. All our employees are free to become, remain, or refrain from becoming or remaining, members in good standing of the above- named union, or any other labor organization, except to the extent that such right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. AMERICAN MAIL LINE, LTD., Employer. By ------------------------------- (Representative ) ( Title) Date -------------------- This notice must remain posted for sixty (6Q) days from the date hereof, and must not be altered, defaced, or covered by any other material. Appendix F NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL withdraw and withhold all recognition from the NATIONAL UNION OF MARINE COOKS AND STEWARDS as the repre- sentative of any of our employees covered by our December 2, 1948, contract, or any supplements or amendments thereof, for 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the purposes of dealing with us concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other con- ditions of employment, unless and until said Union shall have been certified by the National Labor Relations Board. WE W%L cease performing or giving effect to our contract of December 2, 1948, with said Union covering our employees, or to any modification, extension, supplement or renewal thereof, or to any other contract, agreement or understanding affecting such employees entered into with said Union relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said Union shall have been certified by the National Labor Relations Board. WE WILL NOT otherwise interfere with the representation of our employees through a labor organization of their own choosing. WE WILL NOT enter into, renew, or enforce any agreement with any labor organization which expressly or in its performance requires membership in any labor organization or prevents us from securing or retaining employees on a nondiscriminatory basis, except to the extent authorized by Section 8 (a) (3) of the Act. WE WILL NOT encourage membership in the above-named Union, or in any other labor- organization of our employees, or discourage membership in the PACIFIC MARINE STEWARDS UNION, or in any other labor organization of our employees, by discriminating in regard to their hire or,tenure of employment or any term or con- dition of employment, except to the extent authorized by Section 8 (a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a• condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination. If no such positions are presently available, we will place them upon a preferential hiring list and thereafter offer them employment as it becomes available and before other persons are hired for such work. John 0. Baine John Childs Edna M. Bausch Joseph B. Cline Robert D. Bessette Howard W. Cooney Alberto W. Charlesworth Dewey M. Erlwein PACIFIC AMERICAN SHIPOWNERS ASSOCIATION Francis J. Forde W. S. Francis Robert C. Friend Thomas C. Harris Harley E. Krone Louis Larsen James Ralph Mann Thomas C. McCaffrey Hugh McIntyre 627 George J. O'Leary Millard Paisley John W. Patterson Virgil J. Rogers Clarence E. Rothaus' John W. Smoczyk James M. Triana 0. Pedro Villabol WE WILL. OFFER to the employees named below immediate em- ployment in the respective positions previously applied for and discriminatorily denied them, or in substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination. If no such positions are presently available, we will place them upon a preferential hiring list and thereafter offer them employment as it becomes available and before other persons are hired for such work. George Arnold Herbert L. Baker John O. Baine B. F. Barrett Edna Bausch Dale Becks Don Bickford Charles Birdsall Elmer Blanes G. C. Boettiger Herman Bolst Gerald Bosley Alberto W. Charlesworth John Childs Burr D. Cline Joseph B. Cline Homer Cole Howard W. Cooney Harold S. Darling George Davey Harry Doucette Eugene A. Douglas H. Dean Douglas Howard Dow John R. Dyer Dewey Al. Erlwein Francis J. Forde Donald Foster W. S. Francis Robert C. Friend William C. Game Joseph Green Thomas C. Harris William Harris George C. Heard Fred Hemplemen Ernest Henry Herbert Hill Thomas Howard William Jenkins Robert E. Jewell Arnold W. Johnson Frank R. Johnson Charles L. Johnson Charles Johnston A. L. Jones Art D.-King Harold Krause Harley E. Krone Frank Lachica William Lande Percy Landrigan 628 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD Louis Larsen Cyrus Lord Paul Lund Norman Maginn James Ralph Mann A. McAlvey Hugh McIntyre Thomas McMannus Marshall R. McMonagle William B. Miller G. C. Moody Charles Mosher George J. O'Leary Bernard M. Paluck John W. Patterson Leroy Pierson Frank C. Ponce Clarence O. Reese Virgil J. Rogers Jack Roper Dan J. Rotan Don L. Rotan Clarence E. Rothaus Mathias Sabo Henry Schuchard Frank Schulpeck John Siewick Ernest Shearer Albert Sirriani George A. Smith Leslie B. Smith John W. Smoczyk Fred M. Starks Ralph J. Starnes Jack Taylor Lester E. Taft James M. Triana Don W. Tyler Daniel Varady 0. Pedro Villabol Peter Wallrop Lee Whaley WE WILL make whole the following named employees for any loss of pay suffered as a result of the discrimination against them : Alvin Bailey Harold Paige Carol E. Campbell George Responte Marvin E. Lantz Louis Theusen A. L. Makemson WE WILL also make whole the personal representatives of Edward Siebert for any loss of pay, bonuses, emoluments, and insurance or other death benefits suffered as a result of the dis- crimination. All our employees are free to become, remain, or refrain from be- coming or remaining, members in good standing of the above-named union, or any other labor organization, except to the extent that such right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. ALASKA STEAMSHIP COMPANY, Employer. By ---------------------------------- (Representative ) (Title) Date -------------------- PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 629 This notice must remain posted for sixty (60) days from the date hereof; and must not be altered, defaced or covered by any other material. Appendix G NQTICE TO ALL MEMBERS Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL cease performing or giving effect to our contract of December 2, 1948, with PACIFIC AMERICAN SHIPOWNERS ASSOCIA- TION on behalf of its employer members or successors, or to any modification; extension, supplement or renewal thereof, or to any other contract, agreement, or understanding affecting em-' ployees covered by the afore-mentioned contract entered into with said companies relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment, unless and until we shall have been certified by the National Labor Relations Board. WE WILL NOT cause or attempt to cause any of the afore-men- tioned employers, their officers, agents, successors, or assigns to discriminate against their employees or applicants for employ- ment in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of any of the afore-mentioned employers, their successor or as- signs, in the exercise of the rights guaranteed them by Section 7 of the Act, or the right to refrain therefrom, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL make whole the following named employees for any loss of pay suffered because of the discrimination- against them: George Arnold Alvin Bailey John O. Baine Herbert L. Baker B. F. Barrett Edna Bausch -Dale Becks . Robert D. Bessette Don Bickford Charles Birdsall Elmer Blanes G. C. Boettiger 998666-vol. 98-53-41 Herman Bolst Gerald Bosley, Alberto Charlesworth John Childs Burr D. Cline Joseph B. Cline Homer Cole Howard W. Cooney Harold S. Darling - George Davey Harry Doucette - Eugene A. Douglas 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. Dean Douglas Howard Dow John R. Dyer Dewey M. Erlwein Francis J. Forde Donald Foster W. S. Francis Robert C. Friend William C. Game Joseph Green Thomas C. Harris William Harris George C. Heard Fred Hemplemen Ernest Henry Herbert Hill Thomas Howard William Jenkins Robert E. Jewell Arnold W. Johnson Frank R. Johnson Charles L. Johnson Charles Johnston A. L. Jones Art D. King Harold Krause Harley E. Krone Frank Lachica William Lande Percy Landrigan Louis Larsen Cyrus Lord Paul Lund Norman Maginn James Ralph Mann A. McAlvey Thomas C. McCaffrey Hugh McIntyre Thomas McMannus Marshall R. McMonagle William B. Miller C. C. Moody Charles Mosher George J. O'Leary Millard Paisley Bernard M. Paluck John W. Patterson Leroy Pierson Frank C. Ponce Clarence O. Reese Virgil J. Rogers Jack Roper Dan J. Rotan Don L. Rotan Clarence E. Rothaus Mathias Sabo Henry Schuchard Frank Schulpeck John Siewick Ernest Shearer Albert Sirriani George A. Smith Leslie B. Smith John W. Smoczyk Fred M. Starks Ralph J. Starnes Jack Taylor Lester E. Taft James M. Triana Don W. Tyler Daniel Varady 0. Pedro Villabol Peter Wallrop Lee Whaley WE HAVE no objection to the employment of the above-named persons without discrimination because of their nonmembership in our union or membership in other unions . We have given Alaska Steamship Company notice to this effect. WE HAVE no objection to the clearance for employment by Alaska Fishermen's Union of the employees named in our April 11, 1949, blacklist, without discrimination because of the em- PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 631 ployees' nonmembership in our union or membership in other unions. We have given Alaska Fishermen's Union notice to this effect. WE WILL make whole the following named employees for any loss of pay suffered as a result of the discrimination against them : Alvin Bailey Harold Paige Carol E. Campbell George Responte Marvin E. Lantz Louis Thuesen A. L. Makemson WE WILL also make whole the personal representatives of Ed- ward Siebert for any loss of pay, bonuses, emoluments, and in- surance or other death benefits suffered as a result of the discrimination. NATIONAL UNION OF MARINE COORS AND STEWARDS, Labor Organization. By ------------------------------------------------------ (Representative ) (Title) Dated --------------------------- This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges filed by Don L. Rotan, an individual, on April 1 , 1949, and amended on October 12 , 1949, in Cases Nos. 19-CA-186 , 187, 188, and 189, and on April 1, 1949, in Case No. 19-CB-46 , and upon charges filed by Pacific Marine Stewards Union, AFL (hereinafter called PMSU ), on May 16, 1949 , in Case No. 19-CA-213 and September 22, 1949 , in Case No. 19-CB-78, by Franklin Barks- dale, an individual, on December 27, 1948, in Case No . 19-CB-32, by Marshall R. McMonagle, an individual, on June 1 , 1949, in Case No . 19-CB-61, and by Louis A. Thuesen, an individual, on July 7, 1949, in Case No. 19-CB-65, the General Counsel of the National Labor Relations Board (hereinafter called the Board), by the Regional Director of the Nineteenth Region ( Seattle, Washington ), issued a consolidated complaint dated October 24, 1949 , against Pacific American Ship- owners Association (hereinafter called PASA ), Pacific Maritime Association (hereinafter called PMA ), Alaska Steamship Company (hereinafter called Alaska ), American Mail Line, Ltd. (hereinafter called American Mail), Pope & Talbot, Inc. (hereinafter called P & T and all of said companies being herein- after collectively called Respondent Companies ), and National Union of Marine Cooks & Stewards, 010 (hereinafter called MCS , and MCS and Respondent Companies being hereinafter collectively called Respondents ), alleging that Respondents had engaged and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), and (3), as to Respond- ent Companies, and Section 8 (b) (1) (A) and (2 ), as to MCS, of the National Labor Relations Act, as amended (hereinafter called the Act), 61 Stat. 136. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies of the complaint, the order consolidating the cases, the charges and a notice of hearing were duly served upon Respondents. With respect to the unfair labor practices, the complaint as amended at the hearing alleged in sub- stance that : 1 (a) Respondent Companies on December 2, 1948, entered into, and have since observed and carried out, a contract with MCS providing, inter alia, for preferential hiring of members of MCS, replacement of employees by members of MCS, and hiring of employees through the offices of MCS; (b) on or about January 11, March 31, and May 16, 1949, Alaska refused to employ respectively 54, 92, and 78 qualified applicants for employment in the stewards department of its vessels because of the contract with MCS; (c) on or about December 8, 1948, American Mail refused to employ Thomas J. Howard, a qualified applicant for employment in the stewards department of its vessels because of the contract, and by the execution and observance of the contract, discriminatorily discharged Howard; (d) on various respective dates in late 1948 and early 1949, Alaska refused to employ 11 qualified applicants for em- ployment in the stewards department of its vessels because of the contract; (e) Alaska, P & T, and American Mail, by the execution and observance of the contract with MCS, discriminatorily discharged 53 employees ; (f) a union- security agreement had never been authorized pursuant to the provisions of Section 9 (e) of the Act; (g) by the foregoing conduct, Respondent Com- panies engaged in unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) of the Act; and 2 (a) MCS in 1934, 1936, 1946 and more particularly in 1948, engaged in strikes against Respondent Companies, an ob- jective of which was the obtaining of preference of hiring for its members; (b) on December 2, 1948, MCS entered into and has since observed and carried out the above-described contract with Respondent Companies; (c) on or about April 11, 1949, MCS circulated among other maritime unions a blacklist of most of the applicants for employment referred to above; (d) on or about April 29, 1949, MCS refused to permit the 92 applicants to register or use the facilities of its hall to attempt to obtain employment as stewards; (e) from December 21, 1948, to date, MCS supplied personnel through its hiring hall for the stewards department of vessels operated by Alaska, P & T, American Mail, and other companies and refused to dispatch or consider for dispatching any of the above applicants for employment with said companies; (f) MCS, by the enforcement of the contract of December 2, 1948, both caused Alaska, P & T, and American Mail discriminatorily to refuse to employ any of the above applicants for em- ployment and caused said companies discriminatorily to discharge Howard and 53 other employees, because their membership in MCS had been terminated; (g) MCS, from October 10, 1948, to March 1949, maintained armed guards at its hall who displayed hostility towards persons suspected of rival union activity and thereby prevented the above applicants from using the hall to obtain em- ployment because of fear of bodily harm; (h) by the foregoing conduct. MCS engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. Each of Respondents filed an answer, denying the commission of any unfair labor practices and certain of the substantive allegations of the complaint In addition MCS' answer affirmatively alleged that the pertinent provisio1i' of the Act, both inherently and as construed and applied, were unconstitutional ' i As uniformly held by the Board, the constitutionality of all legislation is assamprl until decided to the contrary by the courts. Rite-Form Corset Company, 75 NLRB 174 National Maritime Union, 78 NLRB 971: PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 633 Pursuant to notice a hearing was held in Seattle, Washington, on various days from November 29, 1949, to January 28, 1950, and in San Francisco, California, on January 31 and February 1, 1950, before the undersigned, Robert L. Piper, the Trial Examiner duly designated by the Chief Trial Examiner. All parties except Barksdale, who did not appear, were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce"evidence bearing upon the issues. At the opening of the hearing, Respondents moved to strike various allegations of the complaint. MCS' motion to strike a portion of paragraph .22 of the complaint, which alleged that certain strikes, and the objectives thereof, engaged in by MCS prior to 1947 were unfair labor practices, was granted, upon the grounds that all of this alleged activity took place more than 6 months prior to the service of any charge against MCS. All other motions to strike were denied. During the hearing the General Counsel made various motions to amend the complaint, all of which were granted, together with corresponding amendments to the respective answers denying the amended allegations . It would serve no useful purpose to review here all of these amendments. One of them added the names and dates of Carol E. Campbell, May 2, 1949, and Ralph J. Starnes, De- cember 7, 1948, to the list of applicants to Alaska for employment in paragraph 47 of the complaint, and deleted therefrom Dan J. Rotan, February 1, 1949. An- other specifically listed 53 named employees in lieu of a general group alleged to have been discriminatorily discharged by Alaska, P & T, and American Mail in paragraphs 62, 63, and 64. In addition the General Counsel reserved the right to add to this list the names of certain persons employed by Northland Transporta- tion Company (hereinafter called Northland), at the time of the P1948 strike, on the theory that they were legally employees of Alaska. At the conclusion of the General Counsel's ease-in-chief, Respondents made a number of motions to dismiss the complaint and various portions thereof. All of these motions were denied, except MCS' motion to dismiss paragraph 42 as to certain named individuals, which was granted as to Ernest Bahr, Adolph Baide, Jr., John E. Boers, J. R. Costello, John Davis, W. H. Davis, Douglas Delzell, Theo Erlwein, Don Forrest, Reino Heija, Wilbur Higginson, John Kubath, Tony Man- zano, C. H. McCormick, John McGann, Al Mundt, Arnold Rockstad, Gus Sinclair, and Carl Singer, because of failure of proof. In addition, ruling was reserved on Respondents' motion to dismiss paragraphs 62, 63, 64, and 65 as to certain named individuals on the grounds that they were not employees of Alaska, P & T, or American Mail, and is disposed of by the findings and conclusions hereinafter made. At the conclusion of oral testimony, Respondents' renewed motions to dismiss were denied. The General Counsel's unopposed motion to dismiss the complaint as to Franklin Barksdale was granted. Pursuant to stipulation, all parties were afforded 6 months within which to take and offer in evidence depositions of any individuals alleged to have been discriminated against who had not testified. No such depositions were offered. The General Counsel reserved the right to have marked and offered in evidence as his exhibits, subject to Respond- ents' objections, two certain crew lists of the Lucidor and Palisana, vessels op- erated by Northland. These exhibits were offered, have been marked as General Counsel's exhibits 28 and 29, and are hereby received in evidence. All parties waived oral argument. The 6 months for taking depositions having expired, the hearing was formally closed pursuant to an order served upon all parties. Thereafter, pursuant to leave granted in the order, counsel for Respondent Companies, counsel for 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PMSU and Don L. Rotan, and the General Counsel filed briefs which have been considered. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT I THE BUSINESS OF RESPONDENT COMPANIES (a) Alaska is a Washington corporation maintaining its principal office and docks at Seattle, Washington, where it is engaged in the operation of seagoing vessels in the offshore and Alaska maritime trade. During 1948 Alaska operated approximately 20 vessels, transporting in excess of 20,000 passengers and 400,000 tons of freight, principally between the State of Washington and the Territory of Alaska. Alaska stipulated that it is engaged in interstate commerce. I find that Alaska is engaged in commerce within the meaning of the Act. (b) American Mail is a Delaware corporation maintaining its principal office and docks at Seattle, Washington, where it is engaged in the operation of sea- going vessels in the offshore maritime trade. During 1948 American Mail operated approximately 10 vessels, transporting in excess of 100 passengers and 50,000 tons of freight, principally in the Oriental trade. American Mail stipulated that it is engaged in interstate commerce. I find that American Mail is engaged in commerce within the meaning of the Act. (c) P & T is a California corporation maintaining its principal office and docks at Seattle, Washington, where it is engaged in the operation of seagoing vessels in the offshore maritime trade. During 1948 P & T operated approxi- mately 14 vessels, transporting in excess of 200,000 tons of freight between ports in the United States and ports outside the United States. P & T stipulated that it is engaged in interstate commerce. I find that P & T is engaged in commerce within the meaning of the Act. (d) PASA was a nonprofit California corporation maintaining its principal office and place of business in San Francisco, California. It was an association of steamship companies (including Alaska, American Mail and P & T), which operated vessels between Pacific Coast ports and other ports of the United States and foreign countries. Its principal business was to act on behalf of its members in labor relations matters, including the negotiation and execution of collective bargaining agreements. The Board has found PASA to be an employer within the meaning of the Act,' and accordingly I so find. (e) PMA is a nonprofit California corporation maintaining its principal office and place of business in San Francisco, California. By an agreement dated May 20, 1949, PASA, Waterfront Employers Association of the Pacific Coast, and Waterfront Employers Association of California were consolidated and became PMA. PMA assumed the rights, properties, debts, and liabilities of its pred- ecessor corporations, and came into formal existence on June 3, 1949. Its principal business is to act on behalf of its members (including Alaska, American Mail and P & T), in labor relations matters, including the negotiation and execution of collective bargaining agreements. The Board has found PMA to be an employer within the meaning of the Act,' and accordingly I so find. U. THE ORGANIZATIONS INVOLVED MCS is a labor organization admitting to membership employees of Respondent Companies. 2 Pacific American Shipowners Association, 80 NLRB 622 2 Pacific Maritime Association, 89 NLRB 894. PACIFIC AMERrCAN SHIPOWNERS ASSOCIATION 635 PMSU is a labor organization admitting to membership employees of Respond- ent Companies. III. THE UNFAIR LABOR PRACTICES A. C1eronology of events The history of labor relations in the Pacific Coast maritime industry has been ably documented in other cases, and will not be repeated here. Suffice it to say that in 1935 an arbitration award settled then pending disputes in the industry, and subsequent contracts between MCS and the shipping companies .'were based upon this award. In 1937, following a strike in 1936, MCS obtained from the employers an agreement to hire steward personnel only from MCS' hiring hall, and to give preference of employment to MCS members. Similar provisions have been included in each succeeding contract. Pursuant to these provisions, employees are dispatched to the ships from MCS' hiring hall by its dispatcher. Because of the nature of the industry and in order to dis- tribute work, MCS has evolved a system known as "rotary hiring." For a detailed discussion of;tliis system, the reader is referred to National Union of Marine Cooks and Stewards, 90 NLRB 1099. Briefly, it provides for rotation •ot employment among members of MCS by registration for work. Only mem- bers whose dues are paid in full are permitted to register. They do so accord- ing to the job classifications for which they are qualified. The time and date of such registration is recorded. When jobs come in, periodic calls are made at the hiring hall, and the job is posted on a bulletin board. Members then "bid," or "throwin," for such jobs by giving their registration cards to the dispatcher. The member with the oldest date of registration gets the job. New union recruits are passed upon by MCS, and if approved, issued permit cards. If no members bid for a job, then "permit" holders may bid and be dispatched to the job. After each voyage, all jobs held by permit holders are again posted and bid for by members, who in this manner "bump," or replace, permit holders. Only if no member desires the job is a permit holder reshipped. In addition, no permit holder may be promoted. Certain union requirements involving time worked, performance and other factors exist for promotion from a permit holder to a member. By controlling the issuance of permits and admission to membership, MCS effectively controls the employment of all applicants. It is apparent that the system results in rotation of employment among paid-up members. However, it also results in absolute preference for --such members, not only in hiring but also in tenure, because permit holders .may be bumped by members. In the spring of 1948, negotiations for a new contract were commenced between PASA and MCS. The then existing contract was to expire June 15, ,1948. Among its other demands, MCS desired the continuation of the union hiring hall and preference of employment for its members. At about the same time, certain organizing activities among the stewards department employees of Respondent Companies were begun by the Sailors Union of the Pacific (hereinafter called SUP). Negotiations between PASA and MCS continued throughout the spring but no agreement was reached. The United States District Court for the Northern District of California, pursuant to the pro- visions of Sections 208 and 209 of the Labor Management Relations Act of 1947, issued a temporary restraining order on June 14, and an 80-day injunction On July- 2, preventing a strike. On August 31, MCS proposed a contract to PASA providing for preference of employment based on seniority, and prohibiting discrimination in hiring because of union membership or lack thereof. No agreement was reached. On September 2, 1948, upon the expiration of the 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD injunction, MCS struck against all members of PASA. The strike lasted for 3 months. In October SUP requested Alaska to recognize it as the bargaining representa- tive of Alaska's steward department employees, which was not done. On October 28 SUP filed a petition for certification as such representative with the Board, which was denied on November 26. During October, November; and- December of 1948, and thereafter in 1949, the Seattle branch of MCS took action against the rival activity of SUP. By formal action the Seattle'branch expelled those of its members found guilty of rival union activity , and resolved to blacklist them with affiliated unions and the other branches of MCS. . In the latter part of November negotiations were resumed between PASA and MCS. Considerable progress toward agreement was made. With respect to hiring provisions MCS was advocating agreement on the basis of its seniority proposal of August 31. However, just before agreement was reached, PASA proposed a renewal of the former clauses on hiring, which provided for employ- ment through MCS' hiring hall and preference for its members . The concurrent dispute with the Longshoremen's union having been settled upon such a basis, PASA urged uniformity in the contracts. On December 2, 1948, a contract was executed between PASA and MCS, containing substantially the same provisions as the previous contract in regard to hiring and preference of employment. No union-security provisions have ever been authorized pursuant to Section 9 (e) of the Act. On December 6 the strike was formally terminated and ships began to sail. During the strike those members of MCS who'had signed SUP pledge cards and others who were dissatisfied with MCS for various reasons organized a union originally known as Marine Cooks and Stewards,-AFL, anti-Communist. This union was affiliated with SUP, and ultimately changed its name to PMSU in the latter part of 1948. For reasons not divulged in the record, SUP did not take the members of this group into its own ranks, although nearly all of them had signed SUP pledge cards. They had all been members of MCS and had sailed in the stewards department of Respondent Companies. When the ships began to sail, Alaska, American Mail and P & T secured their steward personnel from MCS as they had in the past, pursuant to the contract of December 2. Although many of the members of PMSU were either employees of Alaska at the commencement of the strike or former employees, none of them were dispatched by MCS or employed by Alaska. As previously noted, MCS had expelled them from membership and had taken action to blacklist them with affiliated unions and other MCS branches. From December until the spring of 1949, various individuals made personal applications for employment in the stewards department to Alaska and American Mail, but none were employed. In the latter part of December 1948, PMSU members- at a union meeting authorized Don Rotan, PMSU organizer and leader, to seek work for them and to make applications for employment. All of the members individually authorized Rotan to act as their agent in this respect,,and members who subsequently joined and others also individually so authorized him. On January 7, 1949, Rotan submitted a list of 54 names to Alaska, with an inquiry whether the persons named were acceptable for employment. On January 11, Alaska advised Rotan that they all were acceptable for employment but upon advice of counsel refused to give Rotan a letter to that effect. On March 18; SUP filed its second petition for certifica- tion with the Board. On March 31, Rotan applied in writing to` Alaska for the employment of 92 named individuals. On April 11, Alaska replied, refusing to take any action. On April 11, MOS sent a letter and the blacklist to the Alaska Fishermen's Union (hereinafter called AFU), characterizing the persons listed PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 637 as disrupters, deserters,, and renegades, and pointing out that they might try to obtain employment in other branches of the industry. On April 16, Rotan wrote to Harris , Seattle agent of MCS, inquiring about the MCS status of the 92 persons named in the application of March 31 to Alaska, requesting MCS to permit them to seek employment through its facilities, and agreeing to tender all MCS dues and assessments if they would be allowed to register under MCS procedure with- out fear of bodily harm or threats. On April 29, Harris replied that the union hall was.open_daily to transact business, but that Rotan must have contacted the wrong Party, because MCS was not an employer and had no jobs to offer anyone. The inquiries concerning union status, tendering of dues, and permission to register and seek employment through MCS facilities were ignored. On May 7, Rotan, having been informed by Alaska that it was going to recommission the S. S. Aleutian and employ a crew, applied for all of the positions in the stewards department of the Aleutian except chief steward. He submitted to Alaska a list of 78 applicants, 1 for each rating in that department. On May 12, Rotan contacted Alaska concerning this application and was referred to its counsel, who refused to employ any of the applicants. On May 13, Alaska ordered a stewards crew for the Aleutian from MCS, and requested Harris to include in such crew and dispatch 6 certain employees who had been employed on the Aleutian when the strike began. The 6 persons requested were among the 78 applicants submitted; by Rotan. On May 14, Alaska hired the entire stewards crew for the Aleutian from MCS. On May 25, Harris replied to Alaska's letter of May 13, saying that all means possible had been used without success to locate the 6 named persons, and that none of them had made themselves available for employment. He further told Alaska that they were out of the industry. (All 6 were included in Rotan's letter of April 16 to Harris.) B. Issues, contentions , and conclusions 1. The execution and enforcement of the contract The complaint alleged that by the mere execution and continued existence of the contract of December 2, 1948, Respondent Companies interfered with, re- strained, and coerced employees in violation of Section 8 (a) (1) of the Act, and by the execution and observance of the contract, discriminated against them in violation of Section 8 (a) (3) ; and that by the mere execution, continued existence and application of the contract to the 8 a 3's, MCS restrained and coerced employees in violation of Section 8 (b) (1) (A), and caused or attempted to cause Respondent Companies to discriminate against employees in violation of Section- 8 ^ (b) (2). Respondents admitted execution of the contract and conceded that no author- ization for union-security provisions had been secured from the Board pursuant to Section 9 (e) of the Act. The Board has already found this same contract N iolative of the Act' Briefly, the contract provides that Respondent Companies shall secure all stewards department employees through the offices of MCS and give preference of employment to members of MCS, that permit men may be replaced by book members, and that permit men so replaced shall be considered laid off. For the reasons stated by the Board,' it is found that MCS violated Section 8 (b) (2) of the Act by the execution and enforcement of the contract. It must now be considered well settled that the mere execution and observance by a union of a contract containing illegal union-security clauses does not restrain * National Union of Marine Cooks and Stewards, 90 NLRB 1099. 1 See footnote 4, supra. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and coerce employees within the meaning of Section 8 (b) (1) (A).' The allega- tion of the complaint also included the language "by the application [of the contract] to the 8 (a) 3's." However, the complaint contains separate and distinct allegations that MCS violated Section 8 (b) (1) (A) by actually causing Respond- ent Companies to discriminatorily discharge or refuse to employ certain specific employees, which will be considered hereinafter. Accordingly, the section of the complaint presently under consideration is treated as an allegation that the execution and observance of the contract, separate and distinct from its applica- tion to specific persons, is violative of Section 8 (b) (1) (A). For the reasons stated, it is not so found. By the execution and continued existence of the contract, containing illegal union-security provisions, Respondent Companies interfered with, restrained, and coerced employees in violation of Section 8 (a) (1) of the Act; by the execution and observance of the contract, Respondent Companies discriminated against employees in violation of Section 8 (a) (3) of the Act' The complaint also alleged that by the execution and enforcement of the contract, and the discharge of and refusal to employ specific individuals, Re- spondent Companies contributed "other support" to MCS in violation of Section 8 (a) (2). The Board has heretofore determined that the execution of such a contract contributes support to a union, and accordingly it is found that Respondent Companies violated Section 8 (a) (2) by the execution and enforcement of the contract' 2. The alleged attempt to cause discrimination by the 1948 strike The complaint alleged that MCS engaged in strikes against Respondent Conn panies in 1934, 1936, 1946, and 1948, an objective of which was the obtaining of preference of hiring, for its members, and that by such conduct MCS violated Section 8 (b) (1) (A) and (2). Upon motion, the allegations concerning the 1934, 1936, and 1946 strikes were stricken, because of the 6 months' limitation contained in Section 10 (b). Considerable proof was received with respect to the objectives of the 1948 strike, which culminated in the contract of December 2. However, this same allegation has already been ruled upon by the Board in the National Union of Marine Cooks and Stewards case, supra. The Board there found that the securing of an illegal preference of hiring clause was not an objective of the strike, because MCS' last prestrike proposal provided for hiring upon a nondiscriminatory seniority basis, and the hiring clause ultimately incorporated in the contract was proposed by Respondent Companies. I consider myself bound by the Board's decision of this same issue. In effect, it amounts to res judicata. As the Board said concerning another realleged violation which it had dismissed in a prior case : "In these circumstances, we do not feel that it will effectuate the purposes of the Act further to consider the manner in which .... Accordingly, we hereby strike [the allegation] from the complaint."' Additional evidence of the alleged violation was offered in that case, as it was, in this. Even if the Board had not decided this issue, the evidence in the record does not persuade me that an objective of the 1948 strike was the securing of illegal preference of hiring. Accordingly, for the reasons stated, the 1948 strike is not found violative of Section 8 (b) (1) (A) or (2). 6 National Maritime Union, 78 NLRB 971 (enfd 175 F. 2d 686 , cert. den., 338 U. S. 954) ; Amalgamated Meat Cutters Union, 81 NLRB 1052. 'Paci'fic Maritime Association, 89 NLRB 894; Acme Mattress Company, Inc, 91 NLRB 1010. s Julius Resnick, Inc, 86 NLRB 38. ° Calitruit Canning Company, 78 NLRB 112. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 639 3. The circulation of the blacklist by MCS The complaint alleged that MCS violated Section 8 (b) (1) (A) and (2) by the circulation among other maritime unions of a letter and a list of names of former members, characterizing them as renegades and attempting to prevent their employment. The record reveals that during the fall of 1948, the Seattle branch of MCS by formal action expelled certain members suspected of SUP activity and resolved to blacklist them with its other branches and affiliated maritime unions. It further- reveals that on April 11, 1949, such a list was sent to AFU, with the observation that: "While these renegades have been completely discredited and defeated, they may attempt to obtain employment in other sections of the industry, particularly when the fishing season opens." Harris, port agent of MCS' Seattle branch, admitted this list and letter were sent to all MCS branches as well. The existence and distribution of the black- list were known to those named in it. Its effectiveness was established in the record. 4 number of the men on the blacklist attempted to secure employment in the Alaska canning industry. After receiving favorable responses from the employers, they were referred to AFU, which had a contract with the employers requiring union membership and clearance. AFU, having received the blacklist from MCS, refused to clear for employment any of the men on the list who applied to them. The General Counsel urged that this conduct by MCS vio- lated Section 8 (b) (2) upon two theories: one, that AFU (and presumably the other MCS branches) was acting as agent for the employers and therefore the conduct was an attempt to cause them to discriminate ; and two, that Sec- tion 8 (b) (2) prohibits union discrimination, as distinguished from causing or attempting to cause an employer to discriminate. With respect to the first, it is undisputed that the blacklist was sent to other unions, and not to employ- ers. Concededly, under certain circumstances a union might be found to be an agent of an employer. Section 8 (b) (2) prohibits causing or attempting to cause an employer to discriminate. I do not belive that there is sufficient evidence in the record to establish that AFU was acting as an agent for any employer, and that therefore the sending of the blacklist by MCS to AFU was an attempt to cause an employer to discriminate. As far as the distribution to other MCS branches is concerned, I have already found that MCS attempted to cause Respondent Companies to discriminate by the execution and enforce- ment of the-contract. Its blacklisting among its various branches of persons expelled from membership was actually a facet of such enforcement, because the contract provided for preferential hiring of its members. Accordingly, this alleged violation is actually a part of conduct already found violative of Section 8 (b) (2). The General Counsel's second theory is based upon the language of Section 8 (b) (2), which makes it an unfair labor practice for a labor organization "to cause or attempt to pause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some grounds other than his failure to tender the periodic dues . . ." The theory of the General Counsel apparently is that the emphasized portion of the section prohibits union discrimination, as distin- guished from causing or attempting to cause an employer to discriminate. This is a novel theory, which I find unsupported by any decision. Admittedly the language of the section is not entirely clear, because the disjunctive "or" may refer back to the labor organization, or to the employer. However, the uniform interpretation of the section and its legislative history support the (view that it is meant to prohibit causing or attempting to cause employer discrimination, and not union discrimination independent of an employer. For the reasons 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated, the distribution of the blacklist by MCS is not found violative of Sec- tion 8 (b) (2). It is clear, however, that the distribution of the blacklist to other unions did restrain and coerce employees in the exercise of the rights guaranteed by Section 7, as prohibited by Section 8 (b) (1) (A). Engaging in union activity in support of PMSU and SUP, and refraining from MCS activity, are clearly rights guar- anteed by Section 7. The Board has had frequent occasion to define the types of activity prescribed by Section 8 (b) (1) (A), and among them is the threat of economic action to prevent the exercise of rights guaranteed by Section 7.10 This conduct was not only a threat of economic action, but its actual effectuation. By the action taken, MCS prevented employees from obtaining work in other branches of the maritime industry . The obvious effect was to restrain and coerce them in the exercise of their rights under Section 7. As the Board has said: "Section 8 (b) (1) (A) proscribes the threat of economic action. It would be anomalous to conclude that the actual effectuation of the threat did not also constitute restraint." 11 MCS contended that in any event this action, was pro- tected by Section 8 (c) as free speech. Clearly , this distribution of a blacklist was not an expression of views, argument or opinion , without threat of reprisal or force or promise of benefit. Rather, it was a verbal act. A threat to distribute such a list would obviously be unprotected by Section 8 (c). It follows that the actual effectuation -of such a threat is less entitled ' to protection than the threat itself. The Board has found blacklisting to be violative of the Act since the inclusion therein of Section 8 (c).12 I find the sending of the letter and blacklist to AFU by MCS to be violative of Section 8 (b) (1) (A). 4 The refusal by MCS to dispatch PMSU members or to permit them to use MCS facilities The complaint in this case contained 65 paragraphs , and a certain amount of overlapping and intertwining is present among the allegations . As has already been noted, an independent violation of Section 8 (b) (2) was not found with respect to the distribution of the blacklist to other MCS branches , because this was in actuality part and parcel of the enforcement of the contract, which enforcement had been found violative of 8 (b) (2). Similarly , an alleged inde- pendent violation of Section 8 (b) (1) (A) was not found with respect to the "execution , continued existence and application to the 8 ( a) 3's" of the contract, because another allegation of the complaint alleged a violation of Section 8 (b) (1) (A) with respect to the actual discrimination brought about by the discharge and refusal to employ specific persons. It would appear to serve no useful purpose , and would unduly lengthen this report, to find that certain conduct violated the Act, and then find that component parts of the same conduct also violated the Act . The present allegation falls within this category. The complaint alleges that by refusing to dispatch certain persons or permit them to use its hiring hall , MCS violated Section 8 (b) (1) (A) and (2 ). The record reveals that such refusals occurred . However, such re- fusals amount to enforcement of the contract , which provides for preference of employment for MCS"members. The execution and enforcement of the con- tract has already been found violative of Section 8 (b) (2). In effect, the General Counsel has pleaded the same violation in two different ways. It has also been found that the execution and enforcement of such a contract, separate and 10 Smith. Cabinet Manufacturing Company, Inc., 81 NLRB 886 ; Seamprufe Incorporated, 82 NLRB 892. 11 Clara-Val Packing Company, 87 NLRB 703. 12 Russell Manufacturing Company, Inc., 82 NLRB 1081. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 641 distinct from its discriminatory application to specific persons, is not violative of Section 8 (b) (1) (A). It is true of course that the causing of discrimination against specific persons is violative of Section 8 (b) (1) (A), which will be considered herein in connection with the allegations concerning specific individ- uals. But the general observance of a discriminatory contract, as distinguished from such specific application, has been found not violative of Section 8 (b) (1) (A), as not being the type of conduct proscribed by that section. For the reasons stated, I find no separate violation of the Act in the refusal by MCS to dispatch nonmembers or permit them to use its hiring facilities. 5. The maintenance of armed guards at the MCS hall The complaint alleged that MCS violated Section 8 (b) (1) (A) by maintain- ing at its hiring hall armed guards who displayed a hostile attitude towards persons affiliated with SUP, thereby restraining and coercing such persons from using the hall or attempting to ship out. The proof does not sustain thia allegation. The record shows that for a period of time, arms and barricades: were maintained at the hall. However, it is undisputed that they were there for the purpose of self-defense. Whether rightly or not, MCS anticipated a possible raid on its headquarters by SUP. For this reason arms and barri- cades were brought in. There is no evidence in the record that they were used in any way to restrain or coerce employees in the exercise of the rights guar- anteed by Section 7. They may have caused dissatisfaction, or even fear, upon the part of certain employees, but such does not constitute restraint and coercion of the right to engage in union activities, or refrain therefrom. A distinction must be made between the dictionary usage of restraint and coercion and the statutory restraint and coercion of rights guaranteed by the Act. The right to engage in union activity, or refrain therefrom, was in no way affected by the perhaps exaggerated defense measures adopted by MCS. 6. The discriminatory discharges and refusals to hire In addition to the allegations of discrimination by the execution and observance of the contract, the complaint alleged a series of specific discriminatory dis- charges and refusals to employ. Over 100 employees are involved, and many of them are included in more than one,of the different instances of alleged dis- crimination. These instances will be considered in the following order: The discharges, the refusal to employ individual applicants , and the group applica- tions of January 11, March 31, and May 7, 1949, to Alaska. a. The discriminatory discharges The complaint alleged that MCS in violation of Section 8 (b) (1) (A) (2) caused the discharge of, and Respondent Companies in violation of Section 8 (a) (1) and (3) discriminatorily discharged, the 53 employees named in Ap- pendix A, by the execution and enforcement of the contract of December 2. In addition to the 53 named employees , the General Counsel contended that certain employees of Northland on ships operated by Northland before the strike and by Alaska after the strike were in effect employees of Alaska and also so discharged . For reasons hereinafter discussed , this contention is found to be without merit . The complaint also alleged that MCA caused the discharge of, and American Mail discriminatorily discharged , Thomas Howard, by the execution and enforcement of the contract. Because of the nature of the industry, continuity of employment with one employer is frequently not the case. When a ship ties up, personnel register for other vacancies, and are frequently dispatched to other ships, thus terminating 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their former employment. Practically all of the alleged dischargees had at one time or another worked for Alaska. This was no doubt true of nearly all the members of the Seattle branch of MCS. Certain customs and practices concern- ing continuity of employment have become established in the industry. While a ship's personnel signs off the articles at the termination of each voyage, this does not terminate the employment relationship. The Supreme Court has so found'3 The contracts entered into between Respondent Companies and MCS recognized this practice by providing that any MCS member might remain continuously in employment. In addition, the shipping rules of MCS provide that a member be redispatched to his position if the ship sails within 10 days. If the layover exceeds 10 days, the employment relationship terminates. The record reveals another instance where employment status continues. When a strike occurs, those employees who tie up a ship are entitled to be redispatched to it upon the termination of the strike, and remain employees of the company employing them at the time of the strike. This practice and custom was recognized by Respondent Companies and MCS. It is also found in MCS' shipping rules. It is this category of employment status which applies to the instant allegation of discriminatory discharge. The General Counsel contended that all of the 53 'named employees were woiking for Alaska at the time of the strike, and thus -were its employees when the contract was signed on December 2 terminating the strike. This custom of the industry of course coincides with well- established, law. Employees who engage in an economic strike remain employees , and unless replaced during the strike, are entitled to reinstatement in their former positions -when the strike is terminated. This principle is too well established to need .elaboration. However, the nature of the maritime industry has some effect upon its application. Under this doctrine, a striking employee is entitled to return to his same position with the same employer. If the position has ceased to exist, no obligation on the employer to reinstate the employee could be found. Certain ships operated by Alaska at the time of the strike were never operated by Alaska thereafter. As a result the positions held with Alaska on those ships ceased to exist. Although the complaint alleged that the 53 employees discharged were employed by Respondent Companies, with the exception of Howard the proof offered concerned only their employment by Alaska. Normally, of course, it is necessary for striking employees to make application for reinstatement. Again, because of the nature of the industry, the termination of the strike did not mean the immediate return to work of the employees, as would be the case in a plant or a factory. As the ships were recommissioned by the various companies, employees who were last employed on them were entitled to return. This meant that certain jobs held before the strike might not open up for a considerable time, until that ship'sailed. For this-reason, there was no immediate mass return of all employees as would normally be the case upon the termination of a strike. The General Counsel contended that Respondent Companies, by entering into a contract effectively prohibiting .the employment of persons not members of MCS, had in effect refused to reinstate all employees entitled to return who were not members of MCS, and by thus effectively preventing their reinstatement, had discharged them. Whether this be construed as a refusal to reinstate or a discharge makes no practical difference. The General Counsel contended that no applications were necessary because they were futile. By entering into a contract which in effect prohibited the return of employees who did. not belong to MCS, Respond- ent Companies had made it impossible for them to return, and they were not Is N. L. R. B. V. Waterman Steamship Corporation , 309 U. S. 206. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 643 required to make the futile and useless gesture of applying for reinstatement under the circumstances. Another way of stating it is that as a result of Respondent Companies' unfair labor practice of executing and enforcing the contract, employees were barred from reinstatement to their positions, and because of such unfair labor practice, the necessity of applying for reinstatement was eliminated. I believe this contention has merit. Although several of the employees entitled to reinstatement did apply (and were refused), the majority made no application to Alaska for reinstatement. It was of course common knowledge that Alaska and MCS were parties to an agreement which effectively prevented the employment of anyone not a member of MCS. Under these circumstances, an application for reinstatement was a futile gesture. In addition, those employees who did apply were refused reinstatement, thus confirming to all of the employees a condition which was already well known to them. When the contract containing the illegal preference was executed, Alaska was aware of the fact that a group of its employees had left MCS, as evidenced by SUP's request for bargaining, SUP's petition for certification, and Alaska's oral agreement with MCS, entered into at the time of the written contract, which will be discussed subsequently. In the face of this knowledge, Alaska entered into a contract requiring MCS membership, and made no effort to reinstate or recall other employees entitled to return, and in fact refused to reinstate some who made personal application. The Board has had occasion to consider circumstances similar to this, and has found in. such cases that no application need be made. In the Jacob' Hunlcele case," the employer entered into an illegal closed-shop contract with a union while his employees were on strike. The employees were not members of that union. No application for reinstatement was ever made. The Board found that the execution of the contract was tantamount to a discharge, and that because of it, no application was necessary. The Board said : "The erection of this illegal barrier against reemployment of these employees relieved them of the necessity of making formal application for work. To hold otherwise would be to place a penalty upon the striking employees for not doing what they knew would have been useless." In the Nevada Consolidated Copper Corporation case,' the em- ployer shut down its mines for an extended period of time. When they were reopened, the employer determined not to reemploy any employees who were members of the union. This policy was well known to all former employees, and as a result several did not make applications for employment. Nevertheless, discrimination was found, because the failure to apply was caused by the employer's unfair labor practice in refusing to hire union members, which made such application futile and unnecessary. For the reasons stated, I find that Alaska, by the execution and enforcement of the contract requiring illegal preference of hiring for MCS members, dis- criminatorily refused to reinstate certain employees entitled to reinstatement, and that MCS caused such discrimination. Before considering the specific individuals alleged to have been discrimi- natorily refused reinstatement, I turn now to a consideration of the various defenses raised by Alaska and MCS. One of these was the failure of some to apply for reinstatement, which has been considered. Another defense raised was that Alaska entered into an oral agreement with MCS, just before the execu- tion of the written contract but after agreement as to its terms had been reached, providing that all employees of Alaska would be returned to the ships which 14 7 NLRB 1276. ?a 26 NLRB 1182, 127 F. 2d 587 (C. A. 10), 316 U. S. 105. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were on when the strike began, irrespective of their union membership and the requirements of the written contract. That such an oral agreement was made is undisputed in the record. Officials of both Alaska and MCS testified -without contradiction to such effect. However, the evidence is equally undis- puted that it was never carried out, and that no employees were reinstated who had left MCS and joined PMSU. An agreement not to discriminate is no defense to proof of discrimination. The record establishes that Alaska refused to rein- state, and did not reinstate, any employees who had left MCS. It also establishes that MCS expelled such employees, blacklisted them with other unions, and repeatedly refused to permit them to use its hiring hall or be dispatched. for employment. Some of the employees who were entitled to reinstatement were ,threatened with assault and even death, some were assaulted, some were told they would never ship again, and some were told to stay away from MCS for their own good, all by officials and members of MCS. In the face of these facts, the oral agreement to permit the reinstatement of employees regardless of union membership is obviously no defense. Only one instance of an alleged attempt to live up to this agreement appears in the record. After having refused to reinstate certain employees who had applied, on May 13, 1949, over 5 months after the strike had ended and many ships had sailed, Alaska wrote a letter to MCS requesting that six certain employees be redispatched to the S. S. Aleutian, which was sailing for the first time after the strike. Although Alaska was aware of the fact that some of its employees had left MCS and joined another union, which obviously was the reason for the oral agreement, Alaska had made no attempt to have the agreement carried out, and in fact had refused to reinstate some employees who had made personal application. During this same period MCS was engaging in the above-described conduct with respect to the employees covered by the oral agreement. The letter of May 13 was undoubtedly occasioned by Rotan's application of May 7 for jobs on the Aleutian. The applicants sub- mitted by Rotan included the six Aleutian employees entitled to reinstatement mentioned in Alaska's letter to MCS. Although both Alaska and MCS knew where to contact these employees, no attempt was made to do so, and on May 14, Alaska hired an entire crew from MCS. Although in frequent contact with each other, no reference was made by either Alaska or MCS to the employees requested by Alaska. Jones, Alaska's port steward, told Zumdieck, Alaska's superintend- ent, that none of the six had come to work and that MCS was unable to get ahold of them. Although Rotan had been at Alaska just 2 days before applying for these men, Alaska made no effort to contact them or to advise MCS of their availability. Alaska made no mention of the oral agreement to Rotan. On May 25, 11 days after the crew was hired, MCS replied to the letter of May 13, saying that it had made every effort to locate the six men, had been unable to do so, and they were no longer working in the industry. MCS made such a state- ment in spite of the fact that it had received a request on April 16 to permit these same men and others to register and ship from the MCS hall. The only effort to locate the men revealed in the record was an alleged announcement over the loudspeaker in the MCS hall. Under the circumstances, this was probably the last place one could have expected to find these men. Harris testified that the men requested by Alaska had been blacklisted by MCS as renegades, were finks and scabs, and that he thought so then and did also when he received the request. The record reveals, and I find, that no good-faith attempt was ever made to carry out the oral agreement. For the reasons stated, it constitutes no defense to the discrimination caused by MCS and effectuated by Alaska. Another defense advanced by Alaska and MCS, which applied not only to the refusal to reinstate but also to the series of, applications for employment which PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 645 will be considered subsequently, was that the employees should have applied to MCS' hiring hall, and their failure to do so relieved Alaska and MCS of any responsibility. This contention is without merit. As the record shows, numer- ous individuals did attempt to use the hiring hall and determine their status with MCS, and were all rejected with varying degrees of emphasis. The threats and violence accorded some had its natural effect upon the others. In addition Rotan wrote MOS, requesting permission for 92 of the applicants to pay their dues, register for shipping at the hiring hall, and seek employement. MCS equiv- ocally but nonetheless certainly rejected this request in its reply. Even if none of the employees and applicants had attempted to use the MCS hall, the very terms of the contract made an application to the hall a useless gesture.18 Because only MCS members would be shipped, an attempt to use the hall by members of a rival union was not only useless, but as the record shows, fraught with danger. Subsequently those who did apply to MCS took the precautoin of doing so by telephone, and were advised in no uncertain terms that they were out. As far as the employees entitled to reinstatement were concerned, the record reveals that none of them were aware of the oral agreement which was supposed to permit their return. As a matter of fact, this agreement was unknown to anyone except the parties to it, and even the membership of MCS was not aware of its existence. In any event, the record establishes that the oral agreement had no effect upon the treatment accorded any of the employees who applied to MCS. In support of this contention, another oral arrangement was advanced. According to their testimony, in January, Tangen, secretary-treasurer of MCS, advised Harris that from then on the shipping rules were out, and any applicant for employment should be registered and dispatched, irrespective of union membership or rival union activity. Again neither the membership of MCS nor the applicants for employment from PMSU were aware of such instructions. Harris told Ward and Nichols, MCS patrolmen, but no one else. This arrange- ment was of course directly contrary -to the contract and MCS' shipping rules. While under the circumstances I consider it somewhat incredible, it is unneces- sary to pass upon the existence of such an arrangement. For the same reasons discusse din connection with the oral agreement with Alaska, it is immaterial. The record reveals that even if such an arrangement did exist, it was not honored. Numerous applicants were denied the use of the hall and emphatically told to stay away after the alleged arrangement. As in the case of the oral agreement, an arrangement to permit nondiscriminatory registering and shipping is no defense to facts proving such discrimination. After the alleged arrangement, Rotan applied to MCS for the 92 persons, and was rejected. After the alleged arrangement , Harris sent the blacklist to AFU. After the alleged arrangement, MCS adopted new shipping rules continuing its requirement of membership for registration. The record establishes beyond dispute that if such an arrangement existed it was not followed. To argue that the applicants should have used the hiring hall in the face of repeated rejections, the terms of the contract, and the shipping rules because of an unknown arrangement which was not followed Carries no conviction. Another defense advanced to both the refusal to reinstate and the refusals to employ was that alleged inconsistent or improper conduct by the complainants should bar the finding of discrimination against Alaska and MCS. This alleged misconduct consisted of the applicants' participation in the strike, with an objective of retaining the illegal preference of hiring provisions, and participating in allegedly similar hiring practices engaged in by SUP and PMSU. In 16 Daniel Hamm Drayage Company , Inc., 84 NLRB 458. 998666-vol. 9 8-53--42 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD support of this position, Respondents relied upon the Indiana and Michigan Electric Company case," wherein the Supreme Court held that the Board should reopen a case for the receipt of newly discovered evidence of violent misconduct by the charging parties (dynamiting of the Company's property), in order to determine whether such conduct would have a bearing upon the credibility of such witnesses and whether the purposes of the Act would be effectuated in finding unfair labor practices alleged by persons guilty of such conduct. However, as clearly pointed out by the Supreme Court in the subsequent Donnelly case,ie the Indiana and Michigan Electric Company case does not stand for the proposition that the Board must receive evidence of alleged misconduct by the charging party, and in effect try the charging party rather than the respondent. As the Court there said : ". . ., the whole tend- ency is to leave rulings as to the illuminating relevance of testimony largely to the discretion of the trial court that hears the evidence." In the Donnelly case the same contention as Respondents advance here was rejected by the Court. In adition, the misconduct alleged herein is not of the serious nature of that in the Indiana case, which resulted in substantial prison sentences. As far as the participation in the strike is concerned, it has been found that the securing of an illegal preference of hiring clause was not one of its objectives. Since the Donnelly case the Board and the courts have frequently held that misconduct or unfair labor practices by the charging party are no defense to an unfair labor practice by the Respondent.' Violations of the Act by one party do not justify another in violating the Act. For the reasons stated, I find no merit in this defense. A final contention urged by Respondents was that no finding of discriminatory refusal to reinstate or refusal to employ could be made with respect to any of the discriminatees who had not testified. Respondents urged that the General Counsel had to prove the availability for employment of each person in order to establish that he had been discriminatorily refused reinstatement or employ- ment. It is of course well established that where a group of persons is dis- criminated against for the same reason, all need not testify in order to establish discrimination against all.20 The testimony of all individuals under such cir- cumstances would be merely cumulative. Respondents contend that this general rule is inapplicable here, because the General Counsel must establish the availability for employment of each person in order to sustain a finding of discriminatory refusal to reinstate or employ such person. I cannot agree with this contention of Respondents. It has been found that Alaska refused and failed to reinstate any of its employees not members of MCS after the strike. Evidence was offered that several group applications for employment .n ere made to Alaska and that Alaska discriminatorily refused and failed to employ any of the persons applying. Evidence was also offered that each of the persons on the applications authorized the application. Assuming these facts to be true, Respondents argue that the General Counsel must establish the availability for employment of each person. The fallacy in this argu- ment lies in the failure to distinguish between the essential elements of a prima facie case and an affirmative defense. Respondents argue that some of the persons who did not testify might not have been available for employment, 27 N. L. R. B. v. Indiana and Michigan Electric Company , 318 U. S. 9. 18 N L R. B. v. Donnelly Garment Company, 330 U. S. 219. 19N. L. R. B. v. Fulton Bag & Cotton Mills, 180 F. 2d 68 (C. A. 10, 1950) ; Sunset Line d Twine Company, 79 NLRB 1487; Seamprufe, Incorporated, 82 NLRB 892; Cory Corporation, 84 NLRB 972. 2" Calmar Steamship Corporation, 18 NLRB 1. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 647 and thus were not discriminated against. If true, this would be an affirmative defense, contrary to the presumption established by the application, which Respondents would have to prove in order to avoid responsibility for the discrimination. It has been found that Respondents discriminatorily caused and effectuated the refusal to reinstate employees entitled to reinstatement. This was discrimination against the entire group. Having established this, the burden of proving that discrimination should not be found as to certain persons because of their unavailability for reinstatement would be upon Respond- ents, as an affirmative defense or plea in abatement. The same reasoning applies to the applications for employment. Assuming that the applications were made, and Respondents discriminated, the burden of proving that the discrimination did not apply to certain persons because they were unavailable for employment would be upon Respondents. In establishing that the applications were duly authorized and made, and that the refusal to employ was discriminatory, the General Counsel would have made out a prima facie case. On this state of the record a presumption would exist that the applicants were bona fide and available for employment. No evidence was offered that they were not, and substantial evidence was offered by those who testified that they were. Having made out such a prima facie case, the burden would shift to Respondents to show that in fact certain applicants were not available for employment, if such were the case. Assuming that the record establishes on the whole that a bona fide application for employment of a group was made and dis- criminatorily refused, and that a substantial number of the applicants were available for employment, the burden of disentangling the consequences flowing from their unfair labor practices rests upon Respondents. That unavailability for employment is a matter of defense rather than an essential part of a prima facie case is plainly set forth by the Board in Lecvington Telephone Com- pany, 39 NLRB 1153. In that case it was alleged that the respondent had discriminatorily refused to reinstate certain former employees. The respondent urged that they were unavailable for employment, but failed to establish this contention. No proof concerning availability other than the application for reinstatement was offered by the General Counsel. The Board found that the employees had been discriminated against. The case makes it clear that the burden of establishing unavailability for employment is upon the respondent. By proving an application for employment and a discriminatory refusal to hire, the General Counsel makes out a prima facie case. He is not required to anticipate and refute possible defenses which Respondent may raise, such as unavailability for employment. For these reasons, I find Respondent's contention without merit. Having considered the various defenses raised by Respondents, I return to a 'consideration of the specific employees alleged to have been discriminatorily 'refused reinstatement. They include the 53 persons listed in Appendix A, and -certain former employees of Northland. For various reasons, I find that some of the 53 were not discriminatorily refused reinstatement. Some were not 'employees of Alaska at the time of the strike, some were supervisors not entitled to the protection of the Act, and some held positions on ships which were not operated after the strike. With respect to the former employees of Northland, the General Counsel contended that those employees who were employed at the time of the strike by Northland on ships which were operated after the strike by 'Alaska became by virtue of such operation employees of Alaska entitled to rein- statement to their positions, and were thus discriminatorily refused reinstate- ment by the execution and enforcement of the contract in the same manner as the others. This contention must be analyzed in the light of the established 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD principle that striking employees are entitled to reinstatement in their positions by their employer. The General Counsel contended that Alaska became the employer of Northland's employees, because it operated certain ships after the strike which were operated before the strike by Northland, and because the principle owners of Northland were also officers and controlling stockholders of Alaska. The record shows that Northland is a partnership composed of 3 partners, all of whom are also officers of Alaska, and 2 of whom own the con- trolling stock of Alaska. It also shows that Alaska operated several ships after the strike which were operated by Northland before the strike. The record also shows that Northland continued in existence after the strike, and that Alaska was in no sense a successor in interest. Upon these facts, the General Counsel contends that Alaska became the employer of Northland's employees on these ships, and thus was obligated to recall and reinstate these employees in the same manner as its own employees. I cannot agree with the General Counsel's contention. As of September 2, 1948, the start of the strike, these employees were employees of Northland. Northland continued in existence after the strike. The mere fact that the con- trolling ownership of two separate entities is the same does not establish one as the successor to the other, which would seem essential to sustain the conten- tion. The evidence clearly showed that Alaska in no sense succeeded to any rights, duties, liabilities, or responsibilities of Northland, which has continued in existence. To charge a different company with the liabilities of another would require considerably greater proof than \vas offered here. Three ves- sels which bad been operated by Northland, the Alaska, the Lucidor, and the Palisana, were operated by Alaska after the strike. Both the Lucidor and Palisana were owned by the United States, and chartered by Northland. After the strike began, they were returned to the United States. Alaska chartered them from the United States after the strike ended. The S. S. Alaska was owned by Alaska and bare boat chartered to Northland in 1947. During the strike it was redelivered to Alaska and operated by it after the strike. The responsibility of reinstating striking employees to their positions after a strike rests upon their employer. Upon the above facts, which constituted all the evidence offered, I cannot find that Alaska succeeded to such responsibility. It is common knowledge that in the maritime industry ships continually are oper- ated under charter by others than the owner. It seems self-evident that the employees of one operator do not become the employees of another, merely -because a ship is redelivered to its owner and subsequently chartered by another operator, or operated by the owner. This reduces the General Counsel's con- tention (which was not urged in his brief), to the fact of common ownership. The fact that two separate entities are commonly owned does not establish that the employees of one are the employees of the other. A far greater showing than was made would have to be made in order to justify such a conclusion, I am convinced, and so find, that Alaska did not become the employer of former Northland employees on ships operated by Northland at the time of the strike, by virtue of the operation of such ships after the strike. With respect to the 53 persons listed in Appendix A, the record reveals and I `find that 28 of them were employed by Alaska at the time of the strike who were entitled to reinstatement after the strike. One of them, William Lewis Allen, had been employed by Alaska as a chief butcher on the S. S. Aleutian. He was entitled to reinstatement when the Aleutian sailed. However, he testi- fied that he had secured another job, and would not have accepted his position on the Aleutian when it sailed even if offered it. Accordingly, no finding of discriminatory refusal to reinstate will be made with respect to Allen. The re- PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 649 uiaining 27 employees entitled to reinstatement are listed in Appendix B. I bud that by the execution and observance of the contract, MCS caused and Alaska effectuated the discriminatory refusal to reinstate the employees listed in Appendix B, in violation of Section 8 (b) (2) and 8 (a) (3) respectively. By discriminatorily refusing to reinstate these employees, Alaska interfered with, restrained, and coerced them in the exercise of rights guaranteed by Section 7, in violation of Section 8 (a) (1). As previously found the execution and observance of the contract by MCS was not a violation of Section 8 (b) (1) .(A). However, it is well settled that causing discrimination against specific individuals is violative of Section 8 (b) (1) (A) 21 Accordingly, I find that by causing Alaska to discriminatorily refuse to reinstate these employees, MCS restrained and coerced them in the exercise of the rights guaranteed by Section 7, in violation of Section 8 (b) (1) (A). I find no discriminatory refusal to reinstate the remaining 25 individuals listed in Appendix A for the following reasons : (1) Five of them, Baker, Krause, Lande, Martin, and Thuesen, were chief stewards on Alaska ships at the time of the strike. The record establishes that chief stewards are in charge of the stewards department on a ship, and have the power to suspend, discharge, pro- mote, assign, and discipline the employees, as well as responsibly, direct them in their work. As such, they are supervisors within the meaning of the Act, as the Board has frequently found, and are not entitled to the protection of the Act; (2) four of them, Bickford, Blanes, Jenkins, and Makemson, were employed by Alaska at the time of the strike on ships which were not operated by Alaska after the strike. Because their positions ceased to exist, no finding of discrim- inatory refusal to reinstate them is made. (Baker and Lande, found above to be supervisors, also are included in this category) ; (3) the evidence reveals, and I find, that the remaining 16 were not employed by Alaska at the time of the strike, and thus were not employees entitled to reinstatement. They are listed in Appendix C. (Thuesen, who was found above to be a supervisor, also was not employed by Alaska at the time of the strike). The record reveals that Thomas J. Howard was employed by American Mail on the S. S. Island Mail at the time of the strike, and thus was entitled to reinstatement. Although it has been found that because of the discriminatory provisions of the contract an application for reinstatement was both futile and unnecessary, Howard did make personal application to American Mail's port steward for reinstatement to his former position, and because of the contract was refused and referred to MOS by American Mail. Howard was not reinstated. I find that by the execu- tion and observance of the contract, MCS caused American Mail discriminatorily to refuse to reinstate Howard, thereby restraining and coercing him in the exercise of rights guaranteed in Section 7, in violation of Section 8 (b) (1) (A) and (2), and American Mail discriminatorily refused to reinstate Howard, thereby interfering with, restraining, and coercing him in the exercise of rights guaran- teed in Section 7, in violation of Section 8 (a) (1) and (3). Although the complaint alleged that Alaska, American Mail and P & T dis- criminatorily discharged the 53 employees named in Appendix A, and that MCS caused such discrimination, there was no proof ordered or contention made that any of the 53 were employees of American Mail or P & T entitled to reinstatement. Accordingly, I find that American Mail and P & T did not discriminatorily dis- charge or refuse to reinstate any of the employees named in Appendix A, and that MCS did not cause them to do so. n Clara-Val Packing Company, 87 NLRB 703; Air Products, Incoi porated, 91 NLRB 1381. as Wilson Transit Company, 75 NLRB 181; Kinsman Transit Company, 75 NLRB 150; Cities Service Oil Company, 80 NLRB 1512 ; Nicholson Transit Company, 85 NLRB 955. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. The refusals to hire (1) The individual applications The complaint, alleged that 11 persons individually applied to Alaska for employment on various dates after the strike, that because of the contract Alaska discriminatorily refused to employ them, and that MCS caused Alaska so to dis- criminate. The allegations concerning Franklin Barksdale were dismissed at the hearing upon the General Counsel's motion. The remaining 10 are Baker, Birdsall, Campbell, Charlesworth, Jewell, McMonagle, Don Rotan, Leslie Smith, Starnes, and Thuesen. Although Baker, Birdsall, Charlesworth, and Don Rotan all testified, no evidence was offered that any of them individually applied for employment. Accordingly, I find no violation with respect to them. The com- plaint alleged that Campbell applied for a position on May 2, 1949. The record reveals that he did. However, it is unnecessary to pass upon this allegation. Campbell applied for reinstatement to his former position, not for new employ- ment. I have already found that Campbell was discriminatorily refused rein- statement to his position after the strike, as one of the 28 employees entitled to reinstatement. Accordingly, I find no separate violation under this allegation as to Campbell. The complaint alleged that Jewell applied to Alaska for a position on or about March 24, 1949. The record reveals that he did contact Alaska about that time. Jewell said that he asked for employment, and that Jones told him he was acceptable for employment but because of the contract he would have to go to MOS. MCS had previously expelled Jewell for alleged rival union activity, had taken away his membership book, and Ward had t6ld him that he would never go to sea again. Jewell testified on cross-examination that he told Jones he had been expelled from MOS. Jones admitted receiving the call, but con- tended that Jewell only asked if he were acceptable for employment. Jones did not deny, but said he could not recall, that he had told Jewell he would have to ship out through MCS. The preponderance of credible evidence convinces me, and I find , that Jewell did apply to Alaska for employment, and was refused and referred to MCS because of the contract. Alaska contended that even if this were true it was not discriminatory, because use of the hiring hall was the normal, customary manner of obtaining employment, and Jewell should have applied to MCS. This contention has previously been considered and rejected. For the reasons heretofore stated, an application to MCS was both futile and dangerous. Because of the contract requiring preference for MCS members, Alaska must have known that an application to MCS by one both an expelled member of MCS and a member of a rival union was useless. By refusing to employ a qualified applicant, and referring him to MCS, Alaska clearly was enforcing the illegal preference provisions of the contract. The complaint alleged that McMonagle applied to Alaska for a position on or about October 30, 1948, and May 31, 1949. No evidence concerning October 30 was offered and accordingly no finding is made. The evidence is undisputed that McMonagle did apply for a position about May 31. He spoke to Jones and Hubbard, then port steward of Alaska. He asked for employment, and was told that he would have to apply to MCS. This was not denied. Prior to this application McMonagle had not only been blacklisted by MCS, but when be visited MCS to ascertain why, had been assaulted to an extent requiring hospitalization. McMonagle of course did not go to MCS again. Alaska again contended that he should have applied to MCS, which contention has been found to be without merit. Alaska also contended that McMonagle applied only for a specific position which was not then vacant, and accordingly was not re- PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 651 fused employment. The record does not convince me of this. McMonagle testi- fied that he asked for employment and also that he asked , "how about my old job back on the Square Sinnetf" McMonagle had formerly held a job with Alaska on the Square Sonnet, but not at the time of the strike. Alaska would confine the meaning of this testimony to a request for that specific position and no other. I cannot agree . The preponderance of evidence convinces me that MeMonagle asked for employment, and suggested his former position. Such a suggestion would seem entirely natural . Nothing in the record indicates that he limited his request to that position-in fact the contrary is established by his evidence. , Alaska also contended that McMonagle's application for em- ployment was not bona fide because he testified that he would not accept a position alone on a ship employing all other steward personnel from MCS because of fear of his life. This same contention was advanced with respect to the group applications hereinafter considered, and will be dealt with then. I find no merit in this defense, for reasons which I shall discuss later. I am convinced and find that McMonagle applied to Alaska for employment, and was rejected and referred to MCS because of the contract. The complaint alleged that Leslie Smith applied to Alaska for employment about December 13, 1948. Smith had been employed on the S. S. Alaska by Northland before the strike, and Alaska was about to hire a crew and start operating the ship. It is undisputed that Smith called Jones on December 13 and asked him about getting his job back on the S. S. Alaska and whether he was acceptable for employment, to which Jones replied that Alaska had a con- tract with MCS, and Smith would be accepted if he came through the regular shipping channels. Smith, who was one of the leaders of the PMSU movement, had been active in securing SUP pledge cards, and had stood no picket duty during the strike, then called MCS and asked for his job on the S. S. Alaska. Ward asked him if he was kidding, and then in a very loud voice told Smith that if he had guts enough to walk into the MCS hall, he could have his job. Ward then asked Smith where the hell he had been the past 3 months (the period of the strike), and when Smith replied on vacation, Ward told him that he had better take a God damn long one. It will be recalled that during this period MCS had expelled and blacklisted a number of members found guilty of rival union activity. Smith, as a leader of such activity, must have been known to MCS. Ward's immediate answer, "Are you kidding?" reveals his knowledge of Smith's activities. This evidence is additional proof of the futility of non- members applying to MCS . Unlike McMonagle, in this instance no contention could be made that the job was not vacant, because Alaska did not hire a crew for the S. S. Alaska until the next day. Alaska contended that Smith was not applying 'for a position but merely seeking to ascertain his acceptability for employment. The undisputed evidence convinces me to the contrary, and I find that Smith applied to Alaska for employment, and was refused and referred to MCS because of the contract. The complaint alleged that Starnes applied to Alaska for employment about December 7, 1948. Starnes testified that he talked to Jones on December 7 and asked him for his old job as printer-waiter on the S. S. Bara'noff, which was due to sail in a few days. Jones told him he could not return to work without a slip from MCS. Starnes called MCS and Ward asked him where he had been and then told him to take a long vacation and hung up . Starnes was employed by Alaska on the Barano ff at the time of the strike, so was an employee entitled to reinstatement. For reasons not disclosed , he was not included in this category by the General Counsel, and accordingly his name does not appear among those alleged to be entitled to reinstatement. Jones denied that he ever talked to 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Starnes in December, or that Starnes ever asked him for employment. The preponderance of credible evidence persuades me, and I find, that Starnes did apply for his old job on December 7. His treatment by both Alaska and MCS is illustrative of the effect given to the oral agreement. This was only the day after the strike ended, and yet Alaska contended that even if he had applied, no discrimination could be found because his job had been filled the day before. If true, it would establish that Alaska did not give the employees entitled to reinstatement even 1 day to apply for their positions which Alaska and MCS had agreed they should have. I can perceive no merit in this defense. One day after the strike an employee asks for a position which Alaska concedes he is entitled to under the oral agreement. Yet he is refused and referred to MCS, where he receives the same treatment accorded all other former members. I find that Starnes applied to Alaska for employment and was refused and re- ferred to MCS because of the contract. The complaint alleged that Thuesen applied to Alaska for employment about January 15, 1949. Thuesen testified that on January 5 he talked to Jones and asked for a job going to sea. Jones told him that that was impossible because all applicants had to go through the MCS hall under the contract. Previously the same day Thuesen had called MCS and asked to go to sea, and Ward had laughed at him and told him that he was out of MCS. Thuesen had been expelled by MCS during the strike. Jones admitted talking to Thuesen but denied that he asked for a job. Jones said that Thuesen was only asking if he were acceptable for employment upon the advice of a Board field examiner. Thuesen denied this. I find that Thuesen did ask for employment, and was refused because of the contract. As has been found, Thuesen was last employed by Alaska as a chief steward, a supervisor. However, he applied for any position for which he was qualified, as he so testified. He was not an employee of Alaska at the time of the strike. It is undisputed that he had ratings for practically all of the positions in the stewards department, which is true of any chief steward. Because of the nature of the industry, employees sail in different ratings frequently. A man may sail on one voyage as a chief steward, and then be dispatched and sail on another ship as a messman , second steward, waiter or any other of the many classifications held below rank of chief steward, none of which are supervisors. This is due to the rotary hiring system previously explained. As an applicant for any position, Thuesen was in the same category as any other applicant. The fact that he had once been a supervisor does not deprive him of the protection .of the Act in future relationships 23 Summarizing, I find that Alaska discriminatorily refused to employ Jewell, McMonagle , Leslie Smith, Starnes, and Thuesen because of the provisions of the contract, and that MCS caused such discrimination, in violation of Section 8 (a) (3) and 8 (b) (2) respectively. By such discrimination, Alaska inter- fered with, restrained, and coerced these employees in violation of Section 8 (a) (1). By causing such discrimination, MCS restrained and coerced them in violation of Section 8 (b) (1) (A). (2) The alleged application of January 11, 1949 The complaint alleged that about January 5, 1949, PMSU presented a list of 54 persons to Alaska with a request for a written statement regarding their acceptability for employment, and that about January 11 PMSU contacted Alaska for its reply and was advised orally that all were acceptable, but before taking 23 John Hancock Mutual Life Insurance Company, 92 NLRB 122. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 653 any action Alaska wished to consult its attorneys, because of the hiring pro- visions of the contract. Although this allegation was never amended at the hearing, the General Counsel urged a finding of discriminatory refusal to em- ploy the 54 persons. The evidence in the record revealed that the facts were substantially as alleged in the complaint. The list was delivered to. Jones on January 5 by Charlesworth and Don Rotan, Don's brother. Both Charles- worth and Jones said that the request was for a written statement as to acceptability for employment. Dan Rotan did not testify about this incident. Jones told them that he would take it up with Zumdieck. On January 11, -Don Rotan, Smith, and Baker -contacted Jones and- Zumdieck for the -reply. Both Jones and Zumdieck told them that the men were acceptable, but before Alaska would give a written statement to that effect, it wished to consult its attorneys . It was undisputed in the record that PMSU wanted to establish the acceptability of the individuals for employment because of a pending unfair labor practice charge against MCS. Some discussion took place about the contract with MCS and its hiring provisions. All of the witnesses agreed sub- stantially on the above facts. The only variance came in the testimony of Don Rotan. While corroborating the above facts, Rotan also testified that he asked Zumdieck to hire the men, and that Zumdieck refused to do so because of the contract. This was denied by Zumdieck and Jones. Smith and Baker, PMSU members who were also present, did not corroborate this testimony. Rotan admitted that the purpose of the call was to find out if the men were acceptable, and to get a written statement to that effect because of the pending charge against MCS. In addition, Rotan testified that the list of January 5 included names ; secured from, pledge cards, as well as persons who had authorized him to apply for employment. The preponderance of credible evidence convinces me, and I find, that no request for employment was made on either January 5 or 11, and that the only request made dealt with the acceptability of the listed persons for employment. Alaska stated the persons listed were acceptable for employment, but upon advice of counsel refused to furnish such a statement in writing. Accordingly I find that Alaska did not discriminatorily refuse to employ anyone on this occasion and that MCS caused no discrimination. (3) The application of March 31, 1949 The.complaint alleged that-on March 31 Don.Rotan wrote Jones, enclosing a list of 92 persons and as their agent applying for employment with Alaska, either in the position last held with Alaska or as a messman, if not previously employed by Alaska. The complaint further alleged that Respondent Companies dis- criminatorily refused to employ any of the applicants because of the contract, and that MCS caused such discrimination. The 92 applicants are listed in Appendix D. The proof concerning this application was limited to Alaska, to whom it was made, and accordingly no violation is found by any other Respond- ent Company under this allegation. On April 11 Zumdieck acknowledged the application by a letter, but took no action thereon and stated the matter of employment was the subject of pending unfair labor practice charges, together with SUP's petition for certification. In the application Rotan had pointed out that the applicants were either unable or unwilling to use the facilities of MCS because of its discrimination against them. The above found facts were undisputed. It has previously been found that all of these applicants authorized Rotan as their agent to seek employment. Although this issue was strenuously litigated, all of the evidence received established that Rotan had been authorized to act as such agent. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A number of Respondents' defenses have been considered. They were also advanced as to this application. In addition, Respondents made several other contentions. One of them was based on the wording of the application. Respond- ents contended that because this request for employment was for the position last held with Alaska, no refusal to employ could be found if that position on the ship on which the applicant last worked was filled. I do not believe such a limited construction is warranted. The request was for a job, in the position last held, or in the position of messman, if the applicant had not worked for Alaska. The normal interpretation of this request would be that if a person last worked as a waiter, he was applying for a position as a waiter. The probable reason for such a request was because Alaska would know from its records that the person was qualified for such a position. To construe the application as limited to a position as a waiter on the Aleutian, for example, and no other ship, because that was the last position held, does not seem justified by the 'wording of the application. Alaska operated a large number of ships, with similar positions on each. A general application for a position last held would seem to refer to the rating, or position, and not the specific ship. This conclu- sion is fortified by the accompanying request for the general position of messman, if no rating with Alaska was on record. No request for a specific ship accom- panied this. These applicants had been seeking work for some time. It would appear to be a most strained construction to hold that if they requested a job in the position last held, they were limiting their request to a specific ship. Inasmuch as these positions or ratings are available on many if not most of the ships, I find this contention to be without merit. As a result, it becomes im- material to determine whether the requested position was available or not on a specifio vessel at or after the time of the application. Respondents also con- tended that the application was made on the basis that a group be employed, or none, and for Alaska to have employed a group of these applicants would have -been an unfair labor practice, because to do so would have been contributing support to one union, discriminating against members of another, and bargain- ing with one, when either a question of representation was pending. or another union was the exclusive representative of Alaska's employees. In support of this contention, Respondents offered certain evidence that Rotan previously had requested Alaska to break out a vessel and employ the entire stewards crew from PMSU, in order to aid SUP in its petition for certification. -Respondents further urged that, because most of the applicants testified that they would not accept employment alone and that they would not accept employment unless it was approved by their union, the request for employment was not bona fide, but an attempt to get Alaska to bargain with PMSU in derogation of the rights ,of the established representative. These contentions, although ably presented, are not persuasive. It is of course elementary that it would not be an unfair -labor practice for Alaska to employ persons belonging to another union. In fact, the converse is true. It is unnecessary to determine whether Alaska would have violated the Act in acceding to a demand that it hire all or a specific group ,of the applicants, to the exclusion of others, becauseno such a demand is evi- denced by the record. The application was for the employment of all or any part of the applicants. Nothing in the record supports the-position that it was a request for a specific group or none, to the exclusion of others. Concededly, Rotan was interested in aiding the petition for certification, and had previously suggested that Alaska break out a ship and employ an entire crew from PMSU, and also that Alaska bargain with PMSU. This request was rejected. There is nothing upon which to infer that the application of March 31 was limited in the same respect. Because Rotan was the organizer of PMSU, it does not follow PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 655 that'when he applied as agent for the applicants, he was merely seeking to aid the organization and was not bona fidely requesting employment for each of the individuals who had authorized him to do so. The language of the applica- tion is clear and unambiguous, and in no way indicates that a specific group or none must be hired. The evidence convinces me, and I find, that the application was unconditional, and was not on the basis that a specific group must be em- ployed, or none. In further support of this position, Respondents rely upon the testimony of most of the applicants that they would not accept offered employment unless it was approved by PMSU, and that they would not accept employment alone on a ship, if the rest of the stewards crew were members of MOS. Respondents urge that this testimony proves that the application was not bona fide, but merely an attempt either to aid SUP's petition for certification or to get Alaska to recognize and bargain with PMSU. Upon first consideration, such testimony might appear to support this contention. However, it must be considered in the light of the history of employment in the maritime industry, and the convictions ingrained in the minds of maritime employees by custom, personal experience and such history. The background history of employment practices in the industry was established in the record by numerous exhibits. One of the major offenses, if not the worst, in the eyes of maritime employees is what is referred to as "shipping off the dock," which in nontechnical language merely means accepting employment directly from an employer without being dispatched or approved by a union. The history of the industry and the testi- mony of members of both PMSU and MSC clearly establishes this in the record. Prior to 1935, employment conditions in the maritime industry were to say the least deplorable. Living conditions and wages on ships were substandard. Graft, bribery, corruption, and even immorality were attendant upon securing employment. Employment was secured by appearing at the dock when a com- pany was hiring. This hiring was delegated to an individual. Because of 'economic conditions, the number of applicants exceeded the number of jobs. As a result, the person hiring was able to pick and choose, and obviously held great economic power over the applicants. This system led to favoritism, bribery, blacklisting, and many other evils. Seamen who were employed received low pay and poor quarters, and were often in debt to pay the bribe necessary to -secure the job. While on the beach, they stayed in boarding houses and ran up bills: Exorbitant prices were charged, but the seamen were helpless and caught in a vicious circle. The operator of the boarding house had arrangements -whereby he controlled the securing of employment. To get a job, seamen lived at his house. In order to repay their indebtedness, they assigned wages. Ob- viously their position went from bad to worse. They had to pay the exorbitant prices to get employment, and then had to accept employment on whatever terms .were offered, because of their indebtedness. The foregoing is only a brief por- tion of the history, but it serves to illustrate some of the reasons for existing convictions among maritime employees. - - In 1935 union hiring halls were established, and over the years conditions for the employees have substantially improved. Better wages, living quarters, and food, as well as freedom from the economic vise above described, resulted. Employment was handled on a rotary basis among union members, as has been described. With this background, the reasons are apparent why unions and employees do not wish to return to former conditions. Hiring off the dock is the first step in such a direction, which explains why it is in such ill-repute among -employees of the industry. This is not to say that the present system is perfect. The transfer of control of hiring to the unions presents them with opportunities 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for discrimination , as evidenced by the facts of this case. Nevertheless the con- viction remains in the minds of practically all maritime employees that hiring off the dock is indefensible. Even if they are not so convinced, they are well aware of the , treatment accorded by union. members to ,anyone who does hire off the dock. With this background the testimony of the applicants that they would not accept offered employment unless approved by their union becomes clear. It does not, in my opinion, evidence a lack of good faith, or an attempt merely to aid the bargaining position of PMSU._ Rather, it evidences that under no conditions would they "hire off the dock." Accepting such employment without approval of-their union would be violating principles of which they are convinced. Such testimony does not demonstrate, as Respondents contend, that their applications were not bona fide, and were made for the purpose of group employment only, to aid the position of their union. Respondents were well aware of this estab- lished conviction, and knew the answers they would receive. Under the cir- cumstances, I do not find any evidence of lack of good faith by refusing to accept employment off the dock. The other point of testimony, that the applicants would not accept employment alone on a ship, if the rest of the crew were members of MCS, is a facet of the same principle. It is however augmented by a well-founded fear of injury and even death. If the applicants accepted employment directly from the em- ployers without union approval, it would be hiring off the dock. However, if they accepted it with approval of their union, it would not be hiring off the dock as far as their union was concerned, but might be so considered by members of -a rival union. This is in effect attributable to so-called jurisdictional lines and disputes. MCS has held the contracts for the stewards department of most Pacific Coast ships for many years. These contracts have required dispatching by MCS and preference for its members. Because MCS has the contract, it considers any one who accepts employment without its approval as shipping off the dock, even though this might technically not be true, because of another union's approval. Irrespective of the technicalities, the results are the same. Anyone who wonld accept employment in the stewards department on a ship under contract to MCS, even though dispatched by another union, would be considered by MCS in the same category as a person shipping off the dock, and so treated. The record reveals that a person who does so is in danger of injury and even death. Under the circumstances, it is apparent why the - applicants would not accept employment alone in a stewards department manned by MCS. To say that such testimony reveals that the applications were not made in good faith but for an ulterior motive is to ignore the facts. Substantially all of the applicants testified they would accept a position if Alaska were to hire on a non- discriminatory basis, choosing its employees from among MCS, PMSU and all other applicants. The applicants, because of their years of service and seniority, were aware that if Alaska did not enforce the discriminatory provisions of the contract and hired on a nondiscriminatory basis it was highly improbable that only one of them would be employed on a ship with the rest of the stewards de- partment being entirely from MCS. Additionally, if Alaska had not agreed to discriminate in favor of MCS members and had employed upon an impartial basis, a substantial basis of MCS' reason for considering nonmember employees as interlopers and scabs would have ceased to exist. This might well have had the, effect of- alleviating the danger which- existed` 'under the circumstances. It appears that Respondents have attempted to rely upon a well-known state of mind and condition of the industry as a defense. I am convinced and find that the ap- plications were made in good faith, and the. refusals to ship off the dock or accept PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 657 employment alone on a ship otherwise manned by MCS did not evidence an ulterior motive in making the applications. Respondents also urged that because there were few if any positions available on March 31, no discrimination could be found. The evidence reveals however that in the normal turn-over which ocurred, sufficient positions became available in the months following to have employed all of the applicants . Respondents were aware of this fact , a normal and usual occurrence in the industry, when the application was made. Respondents contend however that the application was not a continuing one, and must be limited to its date, or at most a few days. They insist that another application must be made, at or about the time a specific job becomes available. The Board has rejected this contention under almost identical circumstances. In the Daniel Hamm Drayage Company case, supra, the company refused to employ applicants because of an Riegel closed -shop con- tract, and contended in defense that no work was available . None was at the time, but the company knew it would have work available in a short time. The applicants did not reapply. Inasmuch as the company continued its discrimi- natory referral and hiring arrangements, the Board found the applicants would have received the same treatment upon reapplying , were not obliged to make such a useless gesture, and had been discriminatorily refused employment. For the reasons expressed by the Board , I find no merit in this defense. Finally, Respondents contended that those applicants on the March 31 list who had last been employed by Alaska as supervisors were not entitled to the protection of the Act. It will be recalled that they were applying for the posi- tions last held. As applicants for supervisory positions, Respondents contend that they are not employees within the meaning of the Act, and thus are not entitled to its protection . The evidence reveals that Baker , Heard, Krause, Lande, Lattish , Martin, Schlossel, Siewick, Thuesen , and Whaley were last em- ployed by Alaska as chief stewards . All except Schlossel and Thuesen were in- cluded in the March 31 application . It would seem that it might result in anomalous situations to find an applicant for a supervisory position an employee entitled to the protection of the Act, and a supervisor not entitled to such pro- tection immediately after being employed . However, the Board has determined since the passage of the Act that an applicant for a supervisory position is an employee entitled to the protection of the Act. In the Briggs Manufacturing Company case " the respondent contended that an applicant for a supervisory position was not an employee within the meaning of the Act. The Board, in rejecting this contention, said : Nor is our conclusion [that Quatro was an employee within the meaning of the Act] altered by the fact that at the time of the violation of Section 8 (4) Quatro was an applicant for a supervisory position . He was a member of the working class when he applied for a job. He did not acquire the status of a supervisory employee of the respondent until he was hired after the discrimination which violated Section 8 (4) took place. The violation of Section 8 (4) took place before he was hired. The Board made it plain that the amendments to the Act excluding super- visors did not affect this conclusion , when it later said: The respondent further argues that the case must be dismissed because the 1947 amendments exclude supervisors from the definition of "employee" in Section 2 (3)'of the Act, and that Quatro as a supervisor is not entitled to the protection and benefits of the Act. We have already pointed out that we do 24 75 NLRB 569. 658 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD not believe that Quatro i8 to be considered to have been a supervisor at the time the violation of Section 8 (4) took place. (Emphasis supplied.) For the reasons stated, I find no merit in this defense. The preponderance of credible evidence convinces me, and I find, that Alaska discriminatorily refused to employ the applicants listed in Appendix D because of the provisions of the contract, and that MCS caused such discrimination, in violation of Section 8 (a) (3) and 8 (b) (2) respectively. By such discrimina- tion, Alaska interfered with, restrained, and coerced these employees in violation of Section 8 (a) (1). By causing such discrimination, MCS restrained and coerced these employees in violation of Section 8 (b) (1) (A). (4) The application of May 7, 1949 The complaint alleged that on or about May 7 Rotan, having ascertained that Alaska intended to begin operating the S. S. Aleutian, applied as their agent for the employment of 78 persons, a complete stewards complement for the Aleutian, that on or about May 12, Alaska discriminatorily refused to employ any of the applicants because of the contract, and that MCS caused such, discrimintion. The evidence was substantially undisputed. On May 7 Rotan submitted an application to Jones for all positions except chief steward in the stewards department of the Aleutian, listing therein 1 person for each position. The 78 applicants are listed in Appendix E. The Aleutian had not previously been operated after the strike and as a result needed an entire crew. Instead of applying generally for positions as he did on March 31, Rotan applied by submitting the name of a specific person for each position. On May 12, Rotan contacted Jones about the application and was referred to Dobrin, Alaska's counsel. Dobrin advised Rotan that Alaska would not employ the applicants. Rotan said that Dobrin advanced as reasons the contract with MCS and the possibility of a strike by MCS if the applicants were hired . Dobrin denied advancing such reasons. In all other respects, the facts were undisputed. None of the applicants was hired. On May 13, Alaska ordered a crew from MCS, and on May 14, hired the entire stewards complement from MCS. As has been found, 6 of the 78 applicants were employees on the Aleutian at the time of the strike entitled to reinstatement. Alaska requested MCS to dispatch them, but no further action was taken by either Alaska or MCS and none of the applicants was hired. Respondents advanced many of the same defenses heretofore discussed and found to be without merit. Among them they reiterated the defense to the application of March 31, that this was not a bona fide application, but a demand to employ the entire group or none, which Respondents contend would itself have been an unfair labor practice. Exactly in what respect it would have been an unfair labor practice is not clear . As has been stated, Respondents contended that it would have been recognition of or bargaining with one union while a question of -representation was pending or another union was the exclusive representative, illegal support to one union, and discrimination against members of MCS. It is not clear how such a conclusion is reached. I know of no decisions which hold that employing applicants amounts to recognition or bargaining with their union, because they happen to belong to one union. The record reveals no other applicants whatsoever for the positions. To have employed them might have resulted in improving PMSU's position on the question of repre- sentation, but in the absence of any other applicants, I cannot see how this could be construed an illegal support. If others, particularly members of MCS, were applicants , then naturally preferring members of one union or another PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 659 might constitute illegal support. For the same reason, I see nothing which would amount to discrimination against MCS. None of its members had applied. The only discrimination conceivable would have been in failing to prefer members of MCS, the illegal requirement of the contract. Such, of course, would not be discrimination under the Act. By contending that it would be discriminatory against members of MCS to employ all of these applicants, Respondents were in fact expressing their intent to live up to the obligations of the contract re- quiring preference for such members, in the absence of any applications from MCS members. However, for the same reasons discussed in connection with the application of March 31, I find no evidence to support the contention that this application was on an all or nothing basis. Most of Respondents' reasons for so construing it have been considered, such as the testimony of the individual applicants, Rotan's earlier request for recognition and aid therein, and Rotan being the organizer and leader of PMSU. In addition, Respondents urged such construction because the application listed one specific individual for each specific job on the Aleutian, in the nature of a crew list. Respondents contended this also proved the applica- tion was not bona fide, but a demand for employment of an entire stewards' crew or none. This contention is not sound. PMSU knew that Alaska was going to employ an entire crew for the Aleutian, having been so advised by Alaska. Practically all of its members had worked very little in the 6 months following the strike, and were anxious to secure employment. Naturally they applied for all of the Positions. Instead of applying for the group generally, as was done on March 31, they attempted to submit a list of persons with ratings and qualifica- tions for each of the positions on the Aleutian. On March 31, no specific jobs were known to them. By picking members who were known to Alaska to have the requisite qualifications, PMSU was able to submit an application which met that test, in any event. Respondents argue that because more names were not submitted than there were jobs, the application evidenced a demand for all or none. Only 78 jobs were available, and PMSU submitted an application of 78 persons qualified to fill the respective positions. Choosing these applicants from among its members and requesting employment for them does not evidence a demand for all or none. Admittedly PMSU desired all of the jobs, and hoped to get them. This, however, does not support Respondents' contention. The preponderance of the testimony in the record also reveals the contrary. A number of the applicants testified that they applied for all of the jobs , hoping to get some, or as many as possible. On the other hand, one of them, Campbell, testified that he personnally wanted Alaska to hire a full crew from PMSU, that he would have accepted a job if PMSU had the full crew, and that he would not accept the job alone. It will be noted that he did not testify that he would not have accepted a job if only part of the crew were employed from PMSU. The reasons existing for not accepting it alone have been considered. Only one of them, Green, testified that he would not have accepted a position if offered unless the entire stewards crew were hired from PMSU. There was no evidence that this represented a condition of the application, or was other than his personal position. Even this testimony of Green and Campbell, which certainly does not preponderate, is not persuasive that the application was on an all or none basis. In addition, they were not officers of PMSLT or participants in the submission of the application. Respondents' contention amounts to arguing that a request for all of the positions should be equated with a demand for all or none. This is obviously unsound. The preponderance of credible evidence convinces me, and I find, that Alaska discriminatorily refused to employ the applicants listed in Appendix E because 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the provisions of the contract, and that MC'S caused such discrimination, in violation of Section 8 (a) (3) and 8 (b) (2) respectively. By such discrimina- tion, Alaska interfered with, restrained, and coerced these employees in viola- tion of Section 8 (a) (1). By causing such discrimination, MCS restrained and coerced these employees in violation of Section 8 (b) (1) (A). Although the complaint alleged that all of Respondent Companies discrimina- torily refused to employ the individual applicants and the applicants of January 11, March 31, and May 7, no proof was offered of any applications to others than Alaska. Accordingly, no such violation will be found. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in Section III, above, occurring in connection with the operations of Respondent Companies described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and between the several States and foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Because it has been found that Respondents have engaged in certain unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that by the execution and enforcement of the contract, Respondent Companies have engaged in unfair labor practices within the mean- ing of Section 8 (a) (1), (2), and (3), and MCS has engaged in unfair labor practices within the meaning of Section 8 (b) (2). I shall therefore recommend that Respondent Companies cease and desist from such conduct, and withdraw all recognition from MCS and cease giving effect to the contract,R6 or any modifi- cation, extension, supplement or renewal thereof, unless and until MCS has been certified by the Board. 'I shall also recommend that MCS cease and desist from such conduct, and cease giving effect to the contract, or any modification, extension, supplement, or renewal thereof, unless and until it has been certified by the Board. It'has been found that American Mail discriminatorily refused to reinstate Howard, that Alaska discriminatorily refused to reinstate the 27 employees listed in Appendix B, and that Alaska discriminatorily refused to employ the individual applicants Jewell, McMonagle, Leslie Smith, Starnes, and Thuesen, the 92 employees listed in Appendix D, and the"78 employees listed in Appendix E, all in violation of Sectionr8 (a) (1) -and (3) of the Act. As previously noted, Joseph Green, one of the applicants listed in both Appendices D and E, testified unequivocably that he would not have accepted a position if offered unless the entire crew were hired from PMSU. No other applicant so testified. Under the circumstances, I do not consider Green is entitled to reinstatement and back pay, because his application was based upon a condition which Alaska was not required to meet. Martin and Siebert, employees listed in Appendix D, are now deceased. I shall therefore recommend that American Mail offer Howard, and that Alaska offer each of the 27 employees listed in Appendix B, immediate and 20 Nothing herein shall be deemed to require Respondent Companies to vary or abandon any substantive provision of such contract, or to prejudice the assertion by employees of. any rights they may have acquired thereunder. 21 Juliua Resnick, Inc., supra; Pacific Maritime Association, 89 NLRB 894. PACIFIC AMERICAN SHIPOWNERS ASSOCIATION 661 full reinstatement to his former or substantially equivalent position" without prejudice to his seniority or other rights and privileges, and that Alaska im- mediately offer Jewell, MeMonagle, Leslie Smith, Starnes, Thuesen, and each of the employees listed in Appendices D and E, except Green, Martin, and Siebert, employment in the respective positions applied for or substantially equivalent positions ".3 Having further found that MCS caused American Mail and Alaska to so dis- criminate in regard to the above-named employees, I shall recommend that MCS notify American Mail and Alaska, in writing, that it has no objection to the employment of the above-named employees, respectively, and that it requests American. Mail to offer Howard and Alaska to offer each of the other above- named employees immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, or immediate employment in the position applied for or a substantially equivalent position, as the case may be. I shall further recommend that MC'S and American Mail jointly and severally make Howard, that MOS and Alaska jointly and severally make the above-named employees, and that MCS and Alaska jointly and severally make the per- sonal representatives of Martin and Siebert, whole for any loss of pay they may have suffered by reason of the discrimination against them. In accordance with Board policy," I shall recommend that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the first 80 discriminatory denial of reinstatement or employment to the date of offer of reinstatement or instatement, and in the case of Martin and Siebert, to the respective dates when they became physically unable to work." The cal- endar quarters shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which each employee would normally have earned for each quarter, or portion thereof, his net earnings," if any, in other employment during that period. Earnings in one particular quarter shall have no- effect upon the back-pay liability for any other quarter. Alaska and American Mail shall make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of back pay due." Liability for further back pay shall terminate against MCS 5 days after the date upon which MCS serves upon Alaska and American.Mail the written notices referred to above.34 For .the reasons expressed by the Board in the Newman I and Acme Mattress cases,86 I shall recommend that Alaska, American Mail, and MCS cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: 27The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827. 23 Idem. l3 F. W. Woolworth Company, 90 NLRB 289'. 80 A number of the employees are included in more than one of the separate refusals to reinstate or employ. 31 N. L. R. B. v. Revlon Product8 Corporation, 144 F. 2d 88 (C. A. 2) ; Interstate Engi- neering Corporation, 83 NLRB 126; Salant & Salant, Incorporated, 92 NLRB 417. 32" Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N. L. R. B., 311 II S. 7. 33 F. W. Woolworth Company, supra 34 General American Aerocoach, 90 NLRB 239. 35 Ir M. Newman, 85 NLRB 725 ; Acme Mattress Company, Inc., 91 NLRB 1010. 998666-vol. 98-53-43 662 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAw 1. Respondent Companies are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. MCS, and PMSU are labor organizations within the meaning of Section 2 (5) of the Act. 3. By the execution and enforcement of the contract of December 2, 1948, Respondent Companies have engaged and are engaging in unfair labor practices within the meaning of Section 8 (a) (1), (2 ), and (3 ) of the Act. 4. By the execution and enforcement of the contract , MCS has engaged and is engaged in unfair labor practice 's within the meaning of Section 8 (b) (2) of the Act. 5. By discriminating in regard to the hire and tenure of employment of the employees listed above in "The Remedy" section , Alaska and American Mail have engaged and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 6. By causing Alaska and American Mail to discriminate against said em- ployees in violation of Section 8 (a) (3) of the Act, MCS, has engaged and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2 ) of the Act. 7. By restraining and coercing employees of Respondent Companies in the exercise of the rights guaranteed in Section 7 of the Act, MCS has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 8. The aforesaid' unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 9. Respondent Companies have not engaged in the unfair labor practices, as alleged in the complaint, of discriminatorily refusing to reinstate Allen, Baker, Krause, Lande, Martin, Theusen, Bickford, Blanes, Jenkins, Makemson, former, employees of Northland, and the 16 employees listed in Appendix C ; of dis- criminatorily refusing to employ upon individual application Baker, Barksdale, Birdsall , Campbell , Charlesworth, and Don Rotan ; and of discriminatorily refusing to employ the applicants of January 11, 1949; and MCS has not engaged, as alleged in the complaint , in the unfair labor practice of causing such discrimination. 10. P & T has not engaged in the unfair labor practice, as alleged in the complaint, of discriminatorily refusing to reinstate any employees, and MCS has not engaged in the unfair labor practice of causing such discrimination. 11. PASA, PMA, American Mail, and P & T have not engaged in the unfair labor practices, as alleged in the complaint, of discriminatorily refusing to employ any employees, and MCS has not engaged in the unfair labor practice of causing such discrimination. 12. MCS has not engaged in the unfair labor practices , as alleged in the com- plaint, of attempting to cause ]3espondent Companies to discriminate against its employees by the 1948 strike and the distribution of a blacklist to other unions. 13. MCS has not engaged in the unfair labor practices , as alleged in the com- plaint, of restraining and coercing employees of Respondent Companies by the execution and enforcement of the contract and by the maintenance of armed guards at its hiring hall. [Recommendations omitted from publication in this volume.]