General Longshore Workers

720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All office and clerical employees at the Employer's Canton, Ohio, plant, including group leaders, chief schedule clerks, and secretaries, but excluding superintendents' clerks, bonus clerks in the bar finish department, telephone and teletype operators, employees in the plant engineering, industrial engineering, and employees' industrial rela- tions departments, clerks in the division superintendent's office, chemistry laboratory and metallurgical laboratory employees, pro- fessional employees, production and maintenance employees, plant guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] LOCAL UNION 1418, GENERAL LONOSHORE WORKERS, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL and Ivy P. BouDREAVx. Cabe No. 15-CB-51. January 28, 1953 Decision and Order On September 15, 1952, Trial Examiner Arthur Leff issued his- Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief ;1 the General Counsel filed a brief in support of the Intermediate Report. The Board 2 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 1 The Respondent also requested oral argument . In our opinion the record, exceptions, and briefs fully present the issues and the position of the parties. Accordingly, this- request is denied. 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. 102 NLRB No. 78. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION Order 721 Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relation Act, as amended, the National Labor Relations Board orders that the Respondent, Local Union 1418, Gen- eral Longshore Workers, International Longshoremen's Association, AFL, its officers, representatives, and agents shall : 1. Cease and desist from : (a) Causing or attempting to cause companies engaged in steve- doring work at the port of New Orleans and/or the officers , agents, or representatives of said companies, to discriminate against Ivy P. Boudreaux or any other employee or applicant for employment in violation of Section 8 (a) (3) of the Act. (b) In any like or related manner restraining or coercing employees or prospective employees of such companies in the exercise of their right to engage in or refrain from any or all concerted activities listed in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act : (a) Notify in writing all companies engaged in stevedoring and related work at the port of New Orleans, including specifically each steamship company and contracting stevedore now a party to the so-called "Deep Sea Agreement" with General Longshore Workers, ILA, Local Unions Nos. 1418 and 1419, dated October 1, 1951, that it has no objection of the employment by them of Ivy P. Boudreaux as a longshoreman or in any other riverfront job capacity. (b) Make whole Ivy P. Boudreaux for any loss of pay and other incidents of employment he may have suffered because of the dis- crimination against him, in the manner described in the section of the Intermediate Report, entitled "The Remedy." (c) Post in conspicuous places in its business office and wherever notices to its members are customarily posted, copies of the notice attached to the Intermediate Report as Appendix A.3 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by official representatives of the Respondent, be posted by the Respondent immediately upon 8 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner," in the caption thereof, the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receipt thereof and maintained by it for a period of sixty (60) con- secutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Fifteenth Region signed copies of the notice for posting, the companies willing, at the offices and places of business of the companies listed in footnote 5 in the Intermediate Report, in places where notices to stevedore employees are customarily posted. Copies of said notice, to be furnished by the Regional Director of the Fifteenth Region, shall, after being signed as provided in paragraph 2 (c) of this Order, be forthwith returned to the Regional Director for such posting. (e) Notify the Regional Director for the Fifteenth Region in writing, within ten (10) days of this Order, what steps have been taken to comply herewith. Intermediate Report STATEMENT OF THE CASE Upon a charge filed by ivy P. Boudreaux on December 19, 1949, and thereafter amended, the General Counsel of the National Labor Relations Board, by the Regional Director for the Fifteenth Region, issued his complaint, dated May 29, 1952, against the Respondent, Local Union 1418, General Longshore Workers, International Longshoremen's Association, AFL, herein called the Union, and at times, Local 1418. The complaint alleged in substance that since on or about June 22, 1949, the Union engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, by causing certain stevedoring corporations named in the complaint as well as others doing business in the port of New Orleans to refuse employment to Boudreaux because of his nonmembership in the Union. The Respondent in its answer denied generally the allegations of the complaint. Pursuant to notice, a hearing was held from June 23 to June 25, 1952, at New Orleans, Louisiana, before Arthur Leff, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented at the hearing by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing the Respondent moved to dismiss the complaint, alleging as its grounds that there was pending before the State court civil actions involving issues of this case, that the Respondent was being unduly harassed by a multiplicity of suits, and that the Board was without jurisdiction over the subject matter of this proceeding. The motion was denied. At the conclusion of the General Counsel's case, the Respondent moved to strike from the record certain testi- mony received over its objection and also to dismiss the complaint for insuffi- ciency of proof. The motions were denied. The Respondent then rested its case, without offering any evidence, renewing its motion to dismiss the com- plaint for insufficiency. Upon renewal, ruling was reserved on the motion to dismiss. That motion is now disposed of in accordance with the findings of fact and conclusions of law made below. A motion to conform the pleadings INTERNATIONAL LONGSHOREMEN'S ASSOCIATION 723 to the proof with regard to minor variances was granted. Opportunity was afforded all parties to argue orally upon the record at the close of the case, and to file briefs and proposed findings and conclusions. After the hearing, briefs were received from the General Counsel and the Respondent. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. COMMERCE The companies specifically named in the complaint-Southern Stevedoring Company, Inc. (Longsbore Division of Lykes Brothers Steamship Company, Inc.) ; United Stevedoring Corporation ; Ryan Stevedoring Company, Inc. ; and Strachan Shipping Company-are Louisiana corporations operating in the port of New Orleans, Louisiana, where they are engaged in stevedoring operations employing longshoremen handling waterborne cargo. During 1950 the port of New Orleans imported waterborne cargo having a value in excess of $500,000,000 and exported similar cargo having a value in excess of $700,000,000. Of such imports and exports, over 70 percent originated at or was destined for points outside the State of Louisiana. The companies named above handle in excess of 70 percent of the waterborne cargo in the port of New Orleans. Both on the record in this case, and in accordance with a previous determination by the Board (Aluminum Line, et al., 8 NLRB 1325), it is found that the companies named above as well as others engaged in stevedoring operations in the port of New Orleans, are engaged in, and that their business affects, commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union 1418, General Longshore Workers, International Longshoremen's Association, affiliated with the American Federation of Labor, is a labor organi- zation within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction The gravamen of the complaint here is that the Respondent Union, after expelling Ivy P. Boudreaux from membership for reasons other than non- payment of dues, blacklisted him from employment in the port of New Orleans, first as a longshoreman and later in other capacities as well, and during the period covered by the complaint has caused waterfront employers to honor that blacklisting. Before plunging into the particular facts relating to Boudreaux, it would be well first to consider briefly the Union's contractual relations with the water- front employers and the hiring practices with regard to longshoremen and related employees in the port of New Orleans. Longshoremen at New Orleans are represented by two local unions of the International Longshoremen's Association-the Respondent Union, Local 1418, which admits only white employees, and Local 1419, a Negro local. The two locals, together, have for many years enjoyed contractual relations with the various steamship companies and contracting stevedores that employ longshore labor in the port. The contract unit covers those employees who actually handle cargo, known as longshoremen ; it does not cover employees in related categories, such as sack sewers, sweepers, waterboys, and coopers. By common agreement, 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the contract unit has been read as also excluding from its coverage employees engaged in loading stores aboard vessels, even though such employees perform work that is similar to and carries the same rates of pay as that of longshoremen. The contracts executed before the effective date of the 1947 amended Act provided : Only members of Locals 1418 and 1419 shall be hired in any capacity in the loading and unloading of ships under this contract. The quoted provision was last included in the contract which was entered into on August 19, 1947, 3 days before the effective date of the amended Act, and which expired by its terms on August 19, 1948. Though extending almost a year into the Taft-Hartley period, that contract was saved from the closed-shop proscriptions of the Taft-Hartley Act by virtue of the provisions of Section 102. All contracts entered into since that time have omitted the closed-shop provision. Instead they have included union-shop provisions requiring employees as a con- dition of employment to become union members on or after the 30th day from the beginning of their employment or the effective date of the applicable agreement, whichever was later.' Such a contract is now in effect. Its legality is not questioned in this proceeding. The current contract, like all earlier ones, provides that "Men shall be hired by foreman or superintendent only." In actual practice longshoremen are usually hired by foremen, almost all of whom are members of the Union, although such membership has never been contractually required as a condition of their employment. Foremen are not necessarily attached to any given stevedoring company. Many work for different companies at different times as their serv- ices are required, and when not working as foremen seek employment as long- shoremen on the gangs of other foremen. The hiring practices followed, gen- erally speaking, are these : Each stevedoring company has a number of regular or extra foremen listed with it. When a ship arrives in port, the stevedoring company working it will determine the number of longshore gangs required, and will contact the necessary number of foremen so that each may assemble his own gang. The hiring of longshoremen is done each day at "shapeups." Fore- men seeking gangs and longshoremen seeking work appear at these "shapeups" where all hiring is done, and the gangs necessary for the day' s work are as- sembled. A foreman who works steadily as such will usually have a steady crew that follows him about from job to job, and he will give preference to his steady men, hiring extras from whomever is around. Longshoremen who are not on steady gangs will go from foreman to foreman until they succeed in find- ing one that requires his services for that day. Union men who are prepared to work steadily and are good workers usually experience little difficulty in finding placement on a regular gang. B. Boudreaux's differences with President Chittenden of Local 1418; his ecpulsion from the Union Boudreaux began working as a longshoreman on the riverfront of New Orleans about 1935, joining Local 1418 shortly thereafter. During the next 10 years he worked at one time or another for practically every stevedoring company in the port of New Orleans, usually as a member of a regular gang. Beginning about 1940, he frequently worked as a longshore foreman, most often for Stra- ' On December 6, 1949, Locals 1418 and 1419 were certified, following an election, as authorized to make union-shop contracts with employees of longshore labor in the port of New Orleans. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION 725 chan Shipping Co., but at times also for Southern Stevedoring Co. and United Stevedoring Co. When not working in a foreman capacity in this period, he sought and found no difficulty in obtaining work at the "shapeups" as a long- shoreman on the gangs of other foremen. In May 1945, Boudreaux was appointed secretary-treasurer of Local 1418 by Al Chittenden, its president, and was subsequently elected to that office by vote of the membership. Upon obtaining that office, a paid position, Boudreaux stopped working on the riverfrout. In the fall of 1947, while still secretary-treasurer of the Union, Boudreaux along with Joseph Doane, the Union's vice president, became embroiled in what proved an extended controversy with Chittenden concerning the manner in which the Union's affairs were being administered . Charges against Chittenden were filed by Boudreaux and Doane with the South Atlantic and Gulf Coast District of the International Longshoremen's Association, alleging that Chittenden had misappropriated union funds and had conducted the Union's affairs in a dic- tatorial manner. Chittenden in turn retaliated by having the Union's executive board suspend Boudreaux and Doane from office , allegedly for removing records from the union hall without the knowledge of the membership. The charges and countercharges were aired at a hearing before a committee of the District's executive board. Following the hearing, the district committee issued a report in which it cleared Chittenden of the misappropriation charge, found that he had assumed undue authority in the conduct of union affairs , and made certain recommendations concerning the future handling and auditing of local accounts as well as for "a more democratic and cooperative spirit with the membership in handling the affairs of the Local." At the same time, the district committee recommended in its report that Boudreaux and Doane be reinstated to the Local's offices from which they had been suspended, without loss in pay. When the district committee's report was read at the next meeting of Local 1418, the flames of the controversy were rekindled. Boudreaux and Doane charged Chittenden with deliberately concealing from the membership a portion of the report prejudicial to him. Chittenden countered by calling on the mem- bership again to suspend Boudreaux and Doane . Although Chittenden's pro- posal was voted down by the membership , Chittenden ordered Boudreaux and Doane out of the hall, telling them they were suspended anyway. Boudreaux and Doane protested Chittenden's action to the District and also to President Ryan of the International. Somewhere along the line, upon orders of Ryan, an international representative was appointed temporarily to take over the opera- tions of Local 1418. And in early January 1948, Boudreaux and Doane were re- instated as members and officers of the local with payment for the loss of earnings they had sustained while out of office. But Boudreaux and Doane did not remain members of Local 1418 for long. About a week or so after their reinstatement Boudreaux and Doane resigned as officers. At the next meeting, held in March 1948, charges-of a nature not specified in the record-were filed against Boudreaux and Doane by several union members. A trial was held on the charges, and, at its conclusion, Boudreaux and Doane were notified of their expulsion from the Union for life. Appeals taken by Boudreaux and Doane to the District and its convention proved unsuccessful. Although expelled from the Union, Boudreaux has unceasingly continued until the present time to wage a fight against Chittenden for reinstatement and vindication. This has taken various forms. Boudreaux has pressed unsuccessful appeals to the District and its convention. He has filed civil suits in the State court against Chittenden-two of which apparently have not yet been finally disposed of. In addition, on a number of occasions-the last time about January 250983-vol. 102-53-47 ,726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '1950-he has published and circularized among employees on the riverfront leaflets criticizing Chittenden's handling of the Union's finances. C. Boudreaux's unsuccessful efforts to obtain employment as a longshoreman after his expulsion; the history of his employment on the riverfront generally since that time 2 It has already been noted that while working as a longshoreman and a long- shore foreman before becoming a union officer, Boudreaux had never experienced difficulty in obtaining employment on the riverfront. This was no less true during the short period between his resignation as union secretary- treasurer in January 1948 and his final expulsion in March of that year. A day or so after he resigned from his union office Boudreaux began "shaping up" in the regular way. He readily obtained work as a longshoreman, and also was hired on occasions as an extra foreman by Strachan Shipping Company. With his expul- sion, however, the situation changed. At about the time of his expulsion, Boudreaux was scheduled to work as a longshoreman foreman, loading a ship for the Strachan Company. When he reported for that assignment shortly after his expulsion, he was told that he could no longer be hired as a foreman because Wharf Superintendent Mohre of Strachan had complained that he was not producing enough work. That same afternoon, Boudreaux called on Mohre to inquire whether the reason given was a true one. Mohre assured Boudreaux that he had always regarded him as a good worker, both as a longshoreman and as a foreman. Mohre went on to explain, however, that he, too, had "bosses," and that he had received orders no longer to hire Boudreaux as a foreman until Boudreaux got "this business straightened out with Mr. Chittenden." That same day Boudreaux obtained a job with Nicky Ross, a foreman em- ployed by Strachan, loading supplies on board ship. As has already been noted, the job of loading stores was one considered outside the coverage of the Union's closed-shop contract. Boudreaux continued to work under Nicky Ross, appar- ently in the same capacity, until sometime toward the end of April. After the work gave out, Boudreaux never again was able to find work on the riverfront, except, as hereinafter more fully noted, as a waterboy and sack sewer, categories carrying hourly rates about half that paid longshoremen. Boudreaux's failure to obtain employment as a longshoreman was not due to any lack of diligence on his part. From April 1948 until about March 1950, Boudreaux made it his business to appear at the "shapeups" at the designated point on Canal Street every day, except on days he was ill or when he was working on other jobs described below and had received previous orders to report to the same place of work. There is evidence that during the period the closed shop was in effect certain foremen, in denying Boudreaux's application for work as a longshoreman, stated to him that they were doing so on instructions from Chittenden. Other statements of like tenor made by foremen and company 'supervisory officials after the expiration of the closed-shop contract and within ,a period of 6 months preceding the filing of the unfair labor practice charge here involved are reserved for later treatment. Unable to obtain work as a longshoreman, Boudreaux sought work in less 'desirable riverfront job classifications without, however, abandoning his efforts to gain employment as a longshoreman. For a period of about 4 or 5 weeks, he worked as a waterboy, the lowest rated job classification on the riverfront, the 2 The findings in this subsection are based upon uncontradicted and credited testimony of Boudreaux. INTERNATIONAL LONGSHOREMEN' S ASSOCIATION 727 job having been offered him by Foreman Thomas Stevens after Stevens, a union member, had rejected his application for work as a longshoreman at a "shapeup" with the remark , "You know I can't hire you." In June 1948, after the waterboy job had given out and resumed efforts to obtain work as a longshoreman had proved futile, Boudreaux applied for and was given work as a sack sewer under Foreman Champion of Southern Stevedoring Company. When Champion died in December 1948, Boudreaux was made foreman in his place, his hourly rate of 92 cents (as contrasted to the $1.78 rate then being paid longshoremen ) remain- ing the same, however. In August 1948, after an incident involving Chittenden to be related below, Boudreaux was relieved of his foreman's position, but was retained as a sack sewer under the new foreman , Boutti. Boudreaux's jobs as sack sewer and sack-sewer foreman for Southern Stevedoring Company lasted from June 1948 until about the end of October 1949. There were days, however, When no work was available , and on such days throughout that period, Boud- reaux made it his unvarying practice to apply at the regular "shapeups" for work as a longshoreman, always without success. In November 1949 Boudreaux obtained a job under Captain Ruppia, superintendent of United Stevedoring Company, as a sack-sewer foreman on a ship loading nitrate. For this job, which lasted about 5 days , Boudreaux was paid longshoreman's rates. Not long thereafter, when another nitrate ship came in , Boudreaux was given a like job by Captain Ruppia , again lasting about 5 days. In between Boudreaux went back to his old job as sack sewer under Foreman Boutti of Southern Stevedoring. Boudreaux last worked on that job about November 15,1949. During the winter of 1949 , Boudreaux, out of work, renewed his efforts to find employment as a longshoreman at the "shapeups." He was consistently rejected. On one specific occasion in November , elaborated on in the record, he approached Robert Doty, a stevedoring foreman and union member, at a time when it was obvious that Doty was experiencing difficulty in finding enough men to fill out a gang. Although admitting to Boudreaux he was short of men at the time, Doty nevertheless rejected Boudreaux 's application for work , stating at the time by way of explanation , "You know I can't hire you.... You know what Al [Chittenden ] said, that anybody that hires you hasn't got no job on the riverfront and that he would see personally ... that he would be thrown out of the organization." When Bourdeaux last worked as a sack-sewer foreman for United Stevedoring Company, he was promised similar work on a third nitrate ship which was expected in port shortly. In December 1949, upon learning that the third ship was about to come in, Boudreaux called at United Stevedoring to complete arrangements for such work . Despite the promise earlier made to him, he was advised that that company could no longer hire him. Later in December, Boud- reaux again called at United Stevedoring Company, saw Superintendent Feder- off, and requested work in any capacity, even as a waterboy . Federoff rejected Boudreaux's job application, asserting as the basis of his job rejection that "he had gotten orders from his boss and from Al Chittenden not to employ [Boudreaux] in any capacity." One day, about a week before Christmas 1949, Boudreaux learned that Southern Stevedoring Company had a ship coming in that night and that sack sewers would be required . Boudreaux called on Boutti to inquire whether he was to work that night. He was told by Boutti that Superintendent Reed had instructed him not to hire Boudreaux again. About a week later , after "shaping up" unsuccessfully in the meantime, Boudreaux was again denied employment by Boutti at a time when it was apparent that Boutti was short several men whom 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was seeking at the "shapeup." At that time Boudreaux called on Superin- tendent Reed. He reminded Reed that when Boutti had superseded him as foreman, Reed had promised that he would be given preference in employ- ment for sack-sewer jobs. He charged that Reed was now denying him a job even as a sack sewer because Chittenden was "putting the pressure on." Reed's only reply was, "It could be, but if you ever bring me out [as] a witness, I will deny the fact that that is what it is." Reed offered no other explanation for his refusal to employ Boudreaux. Failing to obtain any satisfaction from Reed, Boudreaux called upon Moss , Southern Stevedore's general superintendent. Moss expressed the view that Boudreaux had received a "rotten deal" and indicated his personal desire to find some job at which he could put Boudreaux to work "somewhere around the Company," but did nothing. After November 1949 Boudreaux found himself unable to obtain any job on, the riverfront, even as a sack sewer or waterboy , the classifications to which he had been restricted since his expulsion from the Union. Between November 1949 and March 1950, he "shaped up" daily, seeking work as a longshoreman or in any other capacity , but to no avail. In March 1950 Boudreaux secured a job as a carpenter away from the river- front, and apparently has not "shaped up" since. D. Specific incidents evidencing continuing pressure by Chittenden as president of the Respondent to have Boudreaux blacklisted from employment on the New Orlean8 riverfront In addition to the inferences he would have drawn from other circumstances already related, the General Counsel relies upon a number of specific incidents to support a finding that from the time of Boudreaux's union expulsion in early 1948, the Respondent, through Chittenden, engaged in a continuous attempt to bar Boudreaux from employment on the New Orleans riverfront , not only as a longshoreman, but, at least since August 1949, in other capacities as well. These incidents are established by the following undenied and credited testimony: 1. Dave A. Dennis, president of Local 1419, testified: About April 1948 (while the closed-shop contract was still in effect) Chittenden called Dennis and said, "I am calling to let you know that Boudreaux is not a member of 1418 any more and when you see him working knock him off. I told all the delegates already and I thought I would call you." Dennis, who it seems was supporting Boudreaux in his expulsion appeal at the time, told Chittenden he would not "knock off" Boudreaux until his appeal procedures had been exhausted. Not long after, Boudreaux came to Dennis to complain about his inability to obtain work on the docks. Dennis, on Boudreaux's behalf, communicated with Superin- tendent Mohre of Strachan Shipping Company, Boudreaux's last employer. Mohre told Dennis he could do nothing for Boudreaux as his company was "caught in the middle" and did not want its ships "knocked off." 2. Clarence Henry and Paul Guillory , vice president and business agent re- spectively of Local 1419, testified that on at least two occasions, apparently before the expiration of the closed-shop contract, Chittenden told Local 1419 delegates that if they saw Boudreaux working they should "knock him off." 3. The closed-shop contract covering longshoreman expired in August 1948. Negotiations were then conducted for a new contract in which, as finally executed, a union-shop provision was substituted for the former closed -shop provision. As appears from the testimony of Dave Dennis and Clarence Henry, both of whom participated in the bargaining conferences , Chittenden announced to the company negotiators in the course of the bargaining conferences that, as Bou- dreaux and Doane were no longer union members, the Union expected that they INTERNATIONAL LONGSHOREMEN ' S ASSOCIATION 729 would not be employed as longshoremen. Chittenden accompanied his announce- ment with the threat that the companies might anticipate trouble if they em- ployed Boudreaux or Doane. 4. James Tankerson, a business agent of Local 1419, testified : In the autumn of 1948, in the course of a conversation at the docks at which he, Chittenden, and Superintendent Mohre of Strachan Shipping Company were present, Chitten- den told Mohre that as Boudreaux was not a member of the Union, Mohre could not hire him as a longshoreman. On another occasion in early 1949, Chittenden told Tankerson that if he should happen to see Boudreaux working, he should "knock him off." 5. Dennis, whose testimony in this respect is corroborated as to date and place by Henry, testified, and it is found : In late July or early August 1949, a grievance arose concerning working conditions on a ship at Braithwaite where Boudreaux was working at the time. Representatives of Local 1418 and 1419, including Chittenden and the witnesses, visited the ship, where they conferred with em- ployer representatives , including Superintendent Mohre of Strachan and Superin- tendent Reed of Southern Stevedoring Co. While on the ship, Chittenden, observing Boudreaux working there, said to Reed in the presence of the others, "I see you have that troublemaker Boudreaux down there. I asked you not to employ him." Later, after the grievance was settled and as the union committee was leaving, Chittenden again saw Boudreaux, became angry, and, using pro- fanity made a remark to Reed about "knocking off" the ship if he came back and found Boudreaux working.' E. Analysis and conclusions The complaint alleges the Respondent illegally caused New Orleans stevedoring companies to discriminate against Boudreaux since June 22, 1949. The alleged date was admittedly chosen, not because any specific event occurred on that day, but because it happens to be the so-Called Section 10 (b) date-1. e., the date 6 months before the filing and service of the charge , beyond which, under Section 10 (b) of the Act, the Board may not go in making unfair labor practiee findings. Actually, it is the General Counsel's theory of the case that within the 10 (b) period the Respondent engaged in conduct which, while independently illegal, represented also a further application of a discriminatory blacklisting policy it had earlier adopted toward Boudreaux and since pursued without break. At the hearing the Respondent objected to the introduction of evidence relating to events before June 22, 1949, and now in its brief it objects to the consideration of such evidence. However, the matter objected to was received not for the purpose of establishing unfair labor practices prior to June 22, 1949, but solely because it tends to elucidate and explain the character and quality of the Respondent's alleged illegal conduct after that date. By now it must be re- garded as well settled that Section 10 ( b) allows consideration of related events prior to the limitations date for the purpose of throwing light on the specific conduct within the period in issue that ig attacked by the complaint as an unfair labor practice. See N. L. R. B. v. Luzern Hide cE Tallow Co., 188 F. 2d 439 (C. A. 3), cert. den. 342 U. S. 868. Nor is a different rule to be applied in a situation where the earlier conduct is of the same general character as the specific conduct attacked, so that, if timely charged, it might itself have supplied a basis for an unfair labor practice finding. As the Act imposes a continuing & The record reflects that about the time of this last incident, Boudreaux was relieved of his position as sack -sewer foreman for Southern Steamship . However, he was not discharged at the time. As already reported , he was allowed to remain on as a sack sewer until November before he was denied further employment in that capacity. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duty upon labor organizations not to cause or attempt to cause employers illegally to discriminate against their employees, each new breach of that duty gives rise to a separate violation for which a remedy will lie, even though a finding of earlier violations may already be barred by Section 10 (b). The events preceding June 22, 1949, are relevant in evaluating the Respond- ent's conduct during the period in issue. The record clearly establishes that with Boudreaux's expulsion from the Union, Chittenden, as president of the Respondent, instructed union delegates and made known to employer represent- atives that, as a nonmember of the Union , Boudreaux could no longer be em- ployed as a longshoreman . The Respondent's original blacklisting action was not, of course, unlawful. At that time there was in effect a legal closed-shop contract. And during its term, the Respondent was within its rights in hav- ing Boudreaux, an expelled member , barred from employment under that con- tract. From that circumstance alone , no inference adverse to the Respondent may be drawn ; for it is not to be assumed that a course of action undertaken at a time when it is legal to pursue it will be carried over into a period when it is no longer so. Other evidence is present in this case, however, to establish that the blacklisting policy toward Boudreaux, adopted while the closed-shop contract was still in effect, was not discontinued with the contract's termination, but was carried over as a running policy . This is reflected by more than cir- cumstantial evidence , such as Boudreaux's not otherwise explained total in- ability to obtain employment as a longshoreman even after the expiration of the closed-shop provision. Direct evidence of the Respondent's continued de- termination and efforts to maintain Boudreaux on an employment blacklist, re- gardless of contract and legal requirements, is to be found in Chittenden's pointed warning to employer representatives at the first contract negotiations at which the closed-shop provision was by force of law deleted , that he would continue to insist in the future, as he had in the past , upon Boudreaux being barred from longshore employment because of nonmembership in the Union. In the absence of evidence of subsequent abandonment or change of circum- stances-and there is none in this case-it is only reasonable to assume that the blacklisting policy toward Boudreaux, shown by the background evidence analyzed above to have been adopted and pursued by the Respondent before June 22, 1949, was maintained in effect past that date . Were it not for the restrictions of Section 10 (b), a legal inference to that effect might well have been drawn on the basis of such evidence alone . But, because of Section 10 (b), no unfair labor practice finding may be made to rest upon the bare presumption of continuity. More is required, and that in the form of independent proof that within the 10 (b) period the Respondent engaged in some affirmative conduct that was itself illegal, either considered alone or in conjunction with an earlier course of conduct from which it derives meaning it might not alone possess. Such independent proof is not lacking in this case . It is found supplied by the incident in late July or early August 1949 , described by Dennis, when Chittenden, observing Boudreaux working on a vessel he had boarded to process a grievance, expressed his chagrin, reiterated to employer representatives his previous demand upon them not to employ Boudreaux , and threatened reprisal action if his wishes were ignored . While it appears that Boudreaux at that particular time was working as a sack-sewer foreman , rather than in a rank- and-file capacity, that fact does not appear to have been known to Chittenden, and in any event makes no difference in the particular situation of this case. The breadth of Chittenden's remarks, especially when considered against the backdrop of his earlier conduct, was clearly such as to encompass Boudreaux's employment in any capacity on the riverfront . If anything, Chittenden's re- INTERNATIONAL LONGSHOREMEN'S ASSOCIATION 731 marks on this occasion show that whatever his position in that regard may have been before, he was now trying to block Boudreaux from employment not only in longshoreman jobs over which the Union had contract jurisdiction, but in other job capacities as well. Regarded in context with the background events described above, this incident establishes affirmatively that within the 10 (b) period, the Respondent was still persisting in the stand it had earlier taken with stevedoring employers, that Boudreaux as an expelled union mem- ber should be blacklisted from employment. But even if considered separately and apart, the remarks made on this occasion by Chittenden, as president of the Respondent acting within the implied scope of his agency authority, were such as independently to constitute an attempt by the Respondent, unlawful under Section 8 (b) (2) of the Act, to cause stevedoring employes to discriminate against Boudreaux in violation of Section 8 (a) (3) of the Act. It is so found. While the Respondent's illegal attempt within the limitations period is thus clearly established, the complaint goes further and alleges the Respondent ac- tually "caused" stevedoring corporations to discriminate against Boudreaux. We turn, then, to consider whether the record supports a finding that employer discrimination against Boudreaux resulted from the Respondent's illegal at- tempt. Preliminarily, it may be noted that, because of the restrictions of Sec- tion 10 (b), such a finding-dependent as it is upon employer rather than union action-must date, if at all, from the earliest date within the 10 (b) period when the Respondent's illegal "attempt to cause discrimination" has been found inde- pendently established-in this case on the date of the incident in July or August 1949, testified to by Dennis. There is general testimony that at least on certain days between the time of the incident referred to and November 1949, Boudreaux unsuccessfully " shaped up" for work as a longshoreman. But I do not think that testimony sufficiently specific to support a finding that he was denied employment for discriminatory reasons connected with the action of the Respondent. The following incidents beginning in November 1949 do disclose, however, a causal relationship between union pressure and the denial of employment to Boudreaux: (1) The incident in November 1949 when Foreman Doty, at a time when he was experiencing difficulty in filling out a longshore gang, denied Boudreaux employment with the explanation that he could not hire him because of pressure exerted by Chittenden; (2) the incident in December 1949 when Superintendent Federoff of United Stevedoring Company rejected Boudreaux's job application, asserting as the basis of his rejection that "he had gotten orders from his boss and Al Chittenden not to employ Boudreaux in any capacity" ; (3) the incident in late December 1949 when Superintendent Reed of Southern Stevedoring Company, with the tacit admission that it was because of pressure by Chittenden, denied Boudreaux employment as a sack sewer, though work was available, Boudreaux was experienced and qualified for such work, and he had previously been assured that he would be accepted for such work whenever it was available. The Respondent contends that Boudreaux's testimony of what he was told by employer representatives while being denied employment was inadmissible as hearsay, and may not now be considered for any purpose. I am unable to agree. The testimony was admitted, and is now being used, not as evidence of the Respondent's efforts to cause discrimination, but for the limited purpose of establishing the employer representatives' motives and reasons for denying Boudreaux employment . For that purpose, the testimony is clearly competent and material. There are two principal elements in the complaint against the Respondent- (1) that it engaged in conduct designed to cause employers to dis- 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criminate against Boudreaux, and (2 ) that -its efforts succeeded by resultant employer discrimination violative of Section 8 (a) (3).' On the issues of the first element the declarations testified to by Boudreaux are unquestionably hearsay and of no probative value. But that element has been found inde- pendently established without reliance on the declarations objected to. On the issues of the second element the declarations stand in a different posture., The material question there is not what the Union did, but what the employers did ; 1. e., whether their denial of employment to Boudreaux was connected in their view with the independently established union pressure , or flowed from un- related and nondiscriminatory reasons. The mere denial of employment does not answer that question, for, standing alone, it is equivocal and without legal sig- nificance. It derives its legal significance only from the reasons and motives that inspired the action. What was said by employer representatives as to their reasons and motives at the time they denied Boudreaux employment serves to complete and give meaning and legal purport to their action concurrently en- gaged in, and, indeed, must be viewed as an integral part of the action itself. Under these circumstances the hearsay rule is inapplicable, and the employer declarations that accompanied and elucidated the denial of employment provide admissible and probative evidence on the issue of whether the denial was for discriminatory or nondiscriminatory reasons. See, Wigmore, Evidence § 1729, 1745,1766,1772. What credence and weight are to be given to the declarations must, of course, depend upon an evaluation of their reliability when tested against all sur- rounding circumstances. Upon such an assessment, I believe the conclusion inescapable, that the reasons declared by the employer representatives were their reasons in truth. In reaching that conclusion, I am not unmindful of the substantial time lag between the August 1949 incident, on which the find- ing of an "attempt to cause" has been largely predicated, and the November and December 1949 incidents, which are found to establish the success of the at- tempt. While under other circumstances such a gap might tend to refute a finding of a causal relationship, I do not think it does so in the particular sit- uation we have here. I think the gap is adequately bridged by the evidence in this case showing that the Respondent's "attempt to cause" was not an isolated oc- currence but represented part of a continuous policy extending over a sub- stantial period of time. The record shows that the controversy between them that had previously motivated Chittenden to seek reprisal action against Bou- dreaux was still alive. No other change of circumstance had since occurred. For these reasons and in the absence of evidence that the Respondent discon- tinued its policy, of which there is none, it is only reasonable to infer that it did not do so. Moreover, the record suggests no basis for inferring that Bou- dreaux may have been denied employment for reasons other than those asserted at the times of the denials. Certainly, sufficient facts were presented to make out a prima facie showing of the Respondent's responsibility. It was thus for the Respondent, if it would exculpate itself from liability, to come forward with some evidence to rebut the reasonable inferences arising from the General Counsel's case. But this the Respondent did not do. Upon the record as a whole, I am persuaded, and I find, that the Respondent, in November 1949, and thereafter, caused stevedoring employers doing business in the port of New Orleans to refuse employment to Ivy P. Boudreaux because of * Proof of the first element is alone enough to establish the Respondent 's violation of Section 8 (b) (2) ; proof of the second adds only to the remedial order by making the Respondent accountable for back pay-the second has no meaning unless the first is proved. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION 733 his nonmembership in the Respondent Union and because of other reasons dis- criminatory under Section 8 (a) (3) of the Act. By such conduct, I find, the Respondent violated Section 8 (b) (2) of the Act, and Section 8 (b) (1) (A) as well. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the companies described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and with foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, it will be recommended that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has caused employer companies engaged in stevedoring and related work at the port of New Orleans illegally to dis- criminate with regard to the employment of Ivy P. Boudreaux. Accordingly, it will be recommended that the Respondent be ordered to notify in writing all such employer companies, including specifically each steamship company and contracting stevedore in the port of New Orleans now a party to the so-called "Deep Sea Agreement" with General Longshore Workers, ILA, Local Unions Nos. 1418 and 1419, dated October 1, 1951,' that it has no objection to the employ- ment of Ivy P. Boudreaux as a longshoreman or in any other riverfront job capacity. It will further be recommended that the Respondent be ordered to make Boudreaux whole for any loss of pay he may have suffered by reason of the Respondent's unlawful conduct, by (1) the payment to him of a sum of money equal to the amount he normally would have earned in wages as a longshoreman, absent the discrimination, from November 30, 1949, to the date of the discrimination as here found,' to the date the Respondent notifies the employer companies, in accordance with the recommended order, that it no longer has objection to his employment, less his net earnings' during such period ' The following companies appear as parties to this agreement : Abaunza Steamship Agency, Inc. ; Alcoa Steamship Company, Inc. ; Biehl and Company, Inc. ; E. S. Binnings, Steamship Agent ; Estrella Fruit Shipping Corp. ; Fowler & McVitie, Inc. ; Funch, Edye and Company, Inc. ; Gulf and South American Steamship Co., Inc. ; Gulf Shipping Company ; Texla Stevedoring Company ; Isthmian Steamship Company ; Kenneth Leblanc Inc. ; Kerr Steamship Company, Inc. ; Lloyd Brasileiro ; Edmond Loeliger, Inc. ; Luckenbach Gulf Steamship Co., Inc. ; Lykes Brothers Steamship Co., Inc. ; Southern Stevedoring Company, Inc. ; E. J. McGuirk, Steamship Agent ; Mississippi Shipping Company, Inc. ; Page L'Hote Company Ltd. ; John B. Honor and Company, Inc. ; Plant Shipping Company, Inc. ; Plant Line Stevedoring Co., Inc. ; Seatrain Lines, Incorporated ; Smith & Johnson, Incorporated ; States Marine Corporation ; United Stevedoring Corporation ; Strachan Shipping Company ; Texas Transport & Terminal Co., Inc. ; J. P. Florio and Company, Inc.; Tidemann & Dalton, Inc. ; Tropical Fruit Company S. A. ; Waterman Steamship Corporation ; Ryan Stevedoring Company, Inc. ; West Coast Line, Inc. ; Atlantic & Gulf Stevedores, Inc. ; New Orleans Stevedoring Co., Inc. ; Robert T. Smith Stevedoring Co.; T. Smith and Son, Inc. As found above, the Respondent caused employers to discriminate against Boudreaux in November and thereafter. As the record does not establish the precise date in No- vember when such discrimination was first "caused," November 30 has been arbitrarily chosen because it is the last day of the month. 4 See Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and less such other sums as would normally have been deducted from his wages for deposit with State and Federal agencies on account of social-security and other similar benefits, and (2) the payment to the appropriate State and Federal agencies, to the credit of Boudreaux, of a sum of money equal to the amount which, absent the discrimination, would have been deposited to Boudreaux's credit, either as a tax upon his employers or on account of deductions made from his wages by his employers, on account of such social-security or other similar benefits. See Pen and Pencil Workers Union, 91 NLRB 883. Consistent with the policy enunciated in F. W. Woolworth Company, 90 NLRB 289, loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the date of the discrimination to the termination of the Respondent's liability, as hereinabove provided. The quarterly periods, hereinafter called "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 Boudreaux 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. It is further recommended that the Board reserve the right to modify the back-pay provisions if made necessary by a change of conditions in the future, and to make such supplements thereto as may become necessary in order to define or clarify their application to a specific set of circumstances not now apparent. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. The Respondent, Local Union 1418, General Longshore Workers, Interna- tional Longshoremen's Association, AFL, is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. By attempting to cause and causing companies engaged in stevedoring work at the port of New Orleans to discriminate with regard to the hire of Ivy P. Boudreaux, in violation of Section 8 (a) (3) of the Act, thereby also restraining and coercing employees in the exercise of rights under Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] Appendix A NOTICE To ALL MEMBERS OF LOCAL 1418, GENERAL LONGSHORE WORKERS, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL, AND TO ALL STEVEDORING EMPLOYEES IN THE PORT OF NEW ORLEANS Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT cause or attempt to cause companies engaged in stevedoring work at the port of New Orleans to discriminate against Ivy P. Boudreaux AMERICAN TUBE BENDING COMPANY, INCORPORATED 735 or any. other employee or applicant for employment in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees or prospective employees of such companies in the exercise of their right to engage in or refrain from any or all concerted activities listed in Section 7 of the Act, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employ- ment as authorized by Section 8 (a) (3) of the Act. WE WILL make Ivy P. Boudreaux whole for any loss of pay suffered because of the discrimination against him. We have no objection to the employment of Ivy P. Boudreaux as a longshore- man or in any other riverfront job capacity in the port of New Orleans. We have given notice to that effect to all companies engaged in stevedoring work in the port of New Orleans. LOCAL UNION 1418, GENERAL LONOSHORE WORKERS, INTERNATIONAL LONGSHORE- MEN'S ASSOCIATION, AFL Labor Organization. By ----------------------- --------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. AMERICAN TUBE BENDING COMPANY, INCORPORATED and INTERNA- TIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, AFL AMERICAN TUBE BENDING COMPANY, INCORPORATED and INTERNA- TIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, AFL, PETITIONER. Cases Nos. 1-CA-108,0 and 1-RC-0518. January 28,1953 Decision and Order On July 17, 1952, Trial Examiner Sidney Lindner issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom, and take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. The Trial Examiner also recommended that the election held in Case No. 1-RC-2518 on December 7, 1951, be set aside. Thereafter, the Respondent filed exceptions to the Interme- diate Report, and a supporting brief. The Respondent also requested oral argument. The request is denied, because, in our opinion, the record, exceptions, and brief adequately present the issues and the positions of the parties. 102 NLRB No. 68.