J. P. Florio & Co., Inc.

J. P. FLORIO ,& CO., INC. :753 ( ) ; of the Act: e All production .and maintenance employees at . the .Tmployer's.east iron pipe, fittings. and plumbing specialties manufac- turing , plant at Birmingham, Alabama, including shipping clerks, but excluding office clerical employees, plant guards, foremen, and super- visors as defined in the Act' 5. The International has been in compliance at all relevant times. We shall therefore resolve the representation question by conducting an election in which the International 's name appears on the ballot. However, Local Union No. 5367 appears to have an interest in the employees involved. Therefore, the International will be certified, if, it wins the election , only if Local Union No. 5367 is in full compli- ance with Section 9 (f), (g), and (h) by the date of the election, and not later. Absent such compliance, the Board will certify only the arithmetical results of the election.' [Text of Direction of Election omitted from publication.] MEMBER MIRDoclt took no part in the consideration of the above Decision and Direction of Election. e The unit found appropriate is the one for which the International was certified and for which the parties contracted. 7 'The Employer contends that Wendal Atchison and Floyd FIanvey, Jr., are pypervisors and, should be excluded from the unit. The International contends that Atchison is not a supervisor, but takes no position as to Hanvey's supervisory status. Atchison is foreman of the specialty department, and Iianvey is foreman of the drainage pipe fitting department. Both are directly responsible to the superintendent of production. As both Atchison and Hanvey are required to use their independent judgment in the responsible direction of the employees in their departments, we find that they are supervisors and shall exclude them from the unit. 8 Cf. Calcasieu Paper Co., Inc., 109 NLRB 1186, 1188. J. P. Florio & Co., Inc. and Alvin Bocage, Gus Harvey International Longshoremen's Association (Ind.) ; General Long- shore Workers, Local 1418, ILA; and General Longshore Workers, Local 1419, ILA and Alvin Bocage, Gus Harvey. Cases Nos. 15-CA--894, 15-CA-894-1, 15-CB-163, and 15-CB- 163-1. July 19,1957 DECISION AND ORDER On December 10, 1956, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled consolidated proceedings, finding that the Respondents had engaged in certain unfair labor practices and recommending that the Respondents cease and desist therefrom and take certain affirmative action, as set forth in a copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents each filed exceptions to the Intermediate Report and, with the 118 NLRB No. 38. 450553-58-vol. 118-49 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exception of Respondent Local 1419, 'a supporting brief. The Re- spondents' requests for oral argument are denied since the record, in- cluding the exceptions and briefs, adequately presents the issues and the positions of the parties. 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 [Members Murdock, Rodgers, and Bean]. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except as modified herein.' 1. We agree with the Trial Examiner that Respondent Unions, through Henry, Chittenden, Banks, Tankerson, and Thigpen, violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act 2 by demanding that Respondent Company discharge Harvey and that it refuse employment to Bocage and any other individual affiliated with a rival union 3 and by threatening economic reprisals if the Company refused to accede to these demands.4 Except in the case of Chittenden, there is no dispute that the conduct found to be unlawful was in fact committed by the above-named officers and delegates of Respondent Unions. The Com- pany's general superintendent, Silver, testified that immediately prior to the Harvey incident, he was informed by Chittenden and Henry that Bocage was no longer a union member and that neither he nor any- one else affiliating with a rival union would be permitted to work. Silver further testified that after the Harvey incident, he was in- formed by Chittenden and Henry that Harvey must be replaced and that a replacement had been selected. Foreman Klein testified that after the Harvey incident, Chittenden stated to him that he would per- mit no one to organize a rival union. Chittenden did not. deny holding conversations with Silver and Klein on these occasions, but stated that he made no demands respecting the employment of Bocage or Harvey. Henry, however, whom the Trial Examiner described as a "clever 1 The Trial Examiner inadvertently made several errors relating to names and dates in his Intermediate Report. These errors , however, did not affect the merits of his determina- tions and do not alter our conclusions. 2 Unlike the Trial Examiner, we do not find that the evidence establishes that Campbell, Serutine or Guillory engaged in overt conduct forbidden by the Act. The Trial Examiner in some instances stated that the discriminatees were discharged and in other instances stated that they were refused work. Irrespective of nomenclature, the Unions' conduct was unlawful. 4In the case of Bocage , the Unions ' conduct was motivated by the fact that he had shown an interest in a rival union ; in the case of Harvey, by the fact that he shared Bocage's interest in the rival union and voiced objection to the discrimination against Bocage. In view of such motivation , it is unnecessary to determine whether Respondents' collective- bargaining agreement contained a union-security or preferential hiring clause , or whether the procedures used in expelling complainants from membership violated Local 1419's constitution . Accordingly, we do not adopt the Trial Examiner 's conclusion respecting union security, preferential hiring, or the validity of theexpulsion procedures utilized. J. P. FLORIO & CO., INC. 755 and evasive" witness, made no denial that he and Chittenden had re- quested Silver to discriminate against complainants. It does not appear from the record that any of the other witnesses. were present during, or overheard, the foregoing conversations. Although the Trial Examiner did not expressly discredit Chittenden's denial, his ultimate conclusions indicate that he did so impliedly, and we agree that Chittenden's denial should be rejected. To accept such denial would require us to discredit the testimony of Silver and Klein, whom the Trial Examiner accepted as credible witnesses. Chittenden's denial, on the other hand, is uncorroborated. Moreover, in view of Chittenden's testimony that Locals 1418 and 1419 settle their problems "jointly practically at all times," it seems reasonable to conclude that Chittenden, following customary practice, joined Henry in dealing with a problem important to both Locals, i. e., "dual unionism," and that they both sought to oust Bocage and Harvey from employment. We so find. 2. We agree with the Trial Examiner that each of the Respondent Unions should be held responsible for the conduct of their officers and delegates named above. The record as a whole makes it plain that President Henry, Vice President and Delegate Banks, and Delegates Thigpen and Tankerson were acting within the scope of their general authority as representatives of Respondent Local 1419 which, we find, is thus liable for their acts, whether specifically authorized or not.' The responsibility of Respondent Local 1418 for the acts of its presi- dent, Chittenden, is based on the following facts: it engages in joint bargaining with Local 1419 and, together with the latter, executed a single contract covering a single unit of employees of both Locals; Chittenden admitted that he always has the right to handle matters affecting the membership of both Locals and, as already noted, that the two Locals virtually always settle their problems jointly; it is clear that Chittenden's acts were committed in furtherance of the common interest of both Locals, evidenced by their respective constitutions, in discouraging their members from defecting to rival unions. We ac- cordingly find that Local 1418, through Chittenden, was engaged in joint action with Local 1419 against complainants. Under well-estab- lished agency principles, this joint venture relationship between the two Locals carried with it responsibility for each other's acts.5 With respect to Respondent International Longshoremen's Asso- ciation (Ind.), with which Respondent Locals are affiliated, the Trial Examiner found that the said Respondent shares responsibility for the unfair labor practices by reason of the status and conduct of Chit- tenden and Henry, both of whom were admittedly vice presidents of the ILA. We agree as to the ILA's responsibility, but base our con- 5 United Furniture iVorkers of America, Local 309, CIO, 81 NLRB 886 , 889 ; Interna- tional Brotherhood of Teamsters, etc., Local 182 ( The Lane Construction Company), 111 NLRB 952, enforced 228 F. 2d 83 (C. A. 2). 6 Cisco Construction Co., 114 NLRB 27, 30. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elusion only upon Chittenden's status and conduct. The constitution of the ILA (article VII, section 1 (a)) provides that its vice presidents shall be members of its executive council, which is the governing body. The constitution further provides (article XIV, section 4; article XVII, section 1 (a) ; IV), that any member "cooperating with or joining [a rival] organization" is subject to "removal from [his] job," and a Local Union which knowingly "continues in membership such a member may have its charter revoked." It is thus apparent that one of the objectives of the ILA-the prevention of defection of its mem- bers to rival labor organizations-was implemented when Chittenden acted to obtain the ouster of complainants from employment. More- over the record shows that Chittenden purported to act in his official capacity as an officer of the ILA, as well as of Local 1418, during his participation in the events leading to the ouster of the complainants. Thus, two disinterested witnesses whom we credit, Smith and Graham, testified that in response to Harvey's inquiry as to Chittenden's in- terest in Local 1419 business, Chittenden stated that he was a vice president of the ILA .7 We accordingly conclude that Chittenden was acting within the scope of his apparent authority when he took action implementing an important objective of the ILA,8 and, like the Trial Examiner, find the ILA responsible for his acts. 3. The Trial Examiner found, and we agree, that Respondent Company violated Section 8 (a) (3) and (1) of the Act by yielding to Respondent Unions' pressure to discriminate against Bocage and Harvey. Like the Trial Examiner, we find no basis for the Company's contention that its discrimination was excused by the refusal of other employees to work with Bocage and Harvey. Moreover, assuming that the Company anticipated a physical assault upon the complain- ants if they were put to work, there is no evidence that it took any action to prevent such an assault. It was the Company's duty at least to take reasonable steps to resist any domination, violent or peaceful, of its right to employ.' Having failed in this duty, the Company cannot escape the consequences of its discrimination.10 ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : 7 Although Henry was in fact a vice president of the ILA, the evidence is insufficient to establish that he made a similar statement regarding his status . Member Rodgers would find the International responsible by reason of the status of Chittenden and Henry apart from their conduct. s Pacific Intermountain Empress Co., 110 NLRB 96, 104, footnote 14. W. B. Jones Lumber Co., Inc., 114 NLRB 415, 426, footnote 11, 245 F. 2d 388 (C. A. 9). fl N. L. R . B. v. Goodyear Tire & Rubber Co., 129 F . 2d 661, 664 (C. A. 5) ; N. L. R. B. v. Hudson Motor Car Co., 128 F. 2d 528 , 532-533 (C. A. 6). 10 Since it is unnecessary for us to consider whether or not the parties should have resorted to grievance or arbitration procedures , we do not adopt the Trial Examiner 's comments re- lating thereto. J. P. FLORIO & CO., INC. 757 1. The Respondent, J. P. Florio & Co., Inc., New Orleans, Louisiana, its officers, agents, successors, and assigns, shall : (a) Cease and desist from: (1) Encouraging or discouraging membership in International Longshoremen's Association (Ind.) ; General Longshore Workers, Local 1418, ILA; and General Longshore Workers, Local 1419, ILA; or any other labor organization of its employees, by discharging or refusing to reemploy its employees, or by discriminating in any other manner in regard to their hire, tenure, or any term or condition of their employment. (2) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act. (b) Take the following action, which the Board finds will effectuate the policies of the Act : (1) Offer to Alvin Bocage and Gus Harvey reemployment, on a nondiscriminatory basis, in their former or substantially equivalent positions, in accordance with Respondent Company's regular hiring practices and without prejudice to their seniority and other rights and privileges, if any, previously enjoyed. (2) Jointly and severally with Respondent Unions make Alvin Bocage and Gus Harvey whole for any loss of pay either one may have suffered because of the discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of the offer of reemployment less his net earnings, the loss of pay to be computed on a quarterly basis in accordance with the formula adopted by the Board in F. W. Woolworth, 90 NLRB 289. (3) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reemployment under the terms of this Order. (4) Post in conspicuous places at its office in New Orleans, Louisiana, and in all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix A." 11 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent Company's representatives, be posted by the Company, immediately upon receipt thereof, and maintained by it for a period of sixty (60) u 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." `758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consecutive days thereafter. Reasonable steps shall be taken by the Company to insure that said notice is not altered, defaced, or covered by any other material. (5) Notify the aforesaid Regional Director in writing, within ten (10) days from the date of this Order, what steps the Company has taken to comply herewith. 2. The Respondents, International Longshoremen's Association (Ind.) ; General Longshore Workers, Local 1418, ILA; and General Longshore Workers, Local 1419 , ILA, their officers, representatives and agents, successors, and assigns, shall: (a) Cease and desist from : (1) Causing or attempting to cause J. P. Florio & Co., Inc., its officers, agents, successors, or assigns, to discriminate against employees in violation of Section 8 (a) (3) of the Act. (2) Restraining or coercing employees of the said Company, its officers, agents, successors, or assigns, in the exercise of the rights guaranteed to them by Section 7, 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 by Section 8 (a) (3) of the Act. (b) Take the following affirmative action which we find will effec- tuate the policies of the Act : (1) Notify Alvin Bocage, Gus Harvey, and the said Company in writing that Respondent Unions have no objection to, but on the 'contrary now request, the reemployment of the said employees, on a nondiscriminatory basis, in their former or substantially equivalent positions, in accordance with the Company's regular hiring practices, and without prejudice to their seniority and other rights and privi- leges, if any, previously enjoyed. (2) Jointly and severally with the Company, its officers, agents, successors, and assigns, make whole Alvin Bocage and Gus Harvey for any loss of pay that either of them may have suffered because of the discrimination against him, in the manner described in paragraph 1 (b) of this Order. (3) Post in conspicuous places in their business offices in New Or- leans, Louisiana, and in all other places where notices to members are customarily posted, copies of the notice attached hereto marked "Ap- pendix B." 12 Copies of said notice , to be furnished by the Regional Director for the Fifteenth Region, shall , after being signed by official representatives of each Respondent Union, be posted by it immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by Re- spondent Unions to insure that such notices are not altered , defaced, or covered by any other material. 12 See footnote 11, supra. T. P. FLORIO & CO., INC. 759 (4) Mail to the said Regional Director signed copies of the notice attached hereto marked "Appendix B," for posting, the Company willing, at the office and place of business of the Company in places where Appendix A is posted. Copies of said notice, to be furnished by the said Regional Director, shall, after being signed as provided in paragraph 2 (b) (3) of the Order, be forthwith returned to the Regional Director for such posting. (c) Notify,the said Regional Director in writing, within ten (10) days from the date of this Order, what steps each Respondent Union has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT encourage or discourage membership in Inter- national Longshoremen's Association (Ind.) ; General Longshore Workers, Local 1418, ILA; and General Longshore Workers, Local 1419, ILA, or any other labor organization of our em- ployees, by discrimination in any manner in regard to their hire, tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the right to refrain from any or all of the concerted activities guaranteed them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL offer to Alvin Bocage and Gus Harvey reemployment on a nondiscriminatory basis, to their former or substantially equivalent positions, in accordance with our regular hiring prac- tices, and without prejudice to any rights and privileges previ- ously enjoyed, and make each of them whole for any loss of pay suffered as a result of discrimination against him. All our employees are free to become, or remain members of the above-named unions or any other labor organization , except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. J. P. FLORIO & CO., INC., Employer. Dated---------------- By---------------------- --------------- (Repre5entative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE TO ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN'S ASSOCIA- TION ( IND.) ; GENERAL LONGSHORE WORKERS, LOCAL 1418, ILA; AND GENERAL LONGSHORE WORKERS, LOCAL 1419, ILA 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, as amended , we, hereby notify you that : WE WILL NOT cause or attempt to cause J. P. Florio & Co., Inc., its officers, agents, successors, or assigns, to discharge, refuse to employ, or otherwise to discriminate against its employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees of J. P . Florio & Co., Inc., in the exercise of the rights guaranteed to them by Section. 7, 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 by Section 8 (a) (3) of the Act. WE WILL immediately notify Alvin Bocage , Gus Harvey, and J. P. Florio & Co., Inc., in writing, that we do not object to, but on the contrary now request, their reemployment, on a non- discriminatory basis, to their former or substantially equivalent positions, in accordance with the said Company's regular hiring practices, and without prejudice to any rights and privileges previously engaged. WE WILL make Alvin Bocage and Gus Harvey whole for any loss of pay they may have suffered because of the discrimination against them. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION (IND.), Labor Organization. Dated------------ ---- By------------------------------------- (Representative ) ( Title) GENERAL LoNGSHORE WORKERS, LOCAL 1418, ILA, Labor Organization. Dated------ ---------- By------------------------------------- (Representative ) (Title) GENERAL LONGSHORE WORKERS, LOCAL 1419, ILA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. J. P. FLORIO & CO., INC. INTERMEDIATE REPORT AND RECOMMENDED ORDER 761 STATEMENT OF THE CASE On January 30, 1956, separate charges were filed by Alvin Bocage and Gus Harvey, as individuals, charging that J. P. Florio & Co., Inc., and General Longshore Workers, Local 1418, ILA, General Longshore Workers, Local 1419, ILA, and International Longshoremen's Association (Ind.), Respondents, "have engaged in and are en- gaging in" certain unfair labor practices affecting commerce as set forth and defined in the National Labor Relations Act, as amended.' Thereafter the General Counsel of the National Labor Relations Board, on behalf of the Board, caused the Regional Director for the Fifteenth Region, as agent for the Board, to issue a complaint, on the basis of the facts set forth in the charges. The complaint is a consolidated complaint, issued under the authority provided to the General Counsel and the Regional Director by Section 102.33 (b) of the Rules and Regulations of the Board, Series 6, as amended? The consolidated complaint herein, issued upon the basis of the charges filed by the two individuals above named asserts that Local 1419 and the ILA by Clarence Henry, on or about January 27 and 28, 1956,3 demanded that the Company discharge by refusing to hire Alvin Bocage through the shapeup and threatened the Employer with work stoppages and loss of a large amount of money if Bocage continued to work for Respondent Employer; that the Respondents, Local 1418, Local 1419, and the ILA, through certain agents named in the complaint, demanded and caused the Company on or about January 30, to discharge Gus Harvey and discharge and/or refuse to hire Bocage, and threatened the Company with work stoppages and strikes among the Company's employees if Bocage and Harvey were allowed to work on January 30 and if they were found working again for the Company; that Local 1418, Local 1419, and the ILA engaged in such acts because of their knowledge and belief that Bocage and Harvey were attempting to secure adherents and members for the International Brotherhood of Longshoremen, AFL-CIO (IBL) from among the longshore employees at the port of New Orleans, including the Company's em- ployees and members of Local 1418, Local 1419, and the ILA. The consolidated complaint further sets forth that the Company, by certain of its officers and agents on or about January 30 discharged Harvey and discharged or refused to hire Bocage and to the time of the filing of the consolidated complaint had failed and refused to hire, employ, or work Bocage and Harvey because of the demands and threats of the Respondent Unions. The complaint further alleges that the Respondent Unions from on or about January 1 to the time of the filing of the complaint threat- ened employees of the Company with loss of employment, physical harm, and other reprisals if they joined or engaged in activities on behalf of the International Broth- erhood of Longshoremen, AFL-CIO, in order to discourage membership in, and activities on behalf of, that union (IBL) and encourage membership in, and activities on behalf of, Local 1418, Local 1419, and the ILA; and that on or about January 30, agents of the Respondent Unions, together with members of Local 1419, physically assaulted Harvey because he had engaged in activities on behalf of the IBL in order to discourage employees of the Company from joining or assisting that Union, and to encourage membership in, and activities on behalf of, Local 1418, Local 1419, and the ILA. It is charged in the consolidated complaint that these Respondents, Local 1418, Local 1419, and the ILA, by the acts set forth in the complaint, have engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act. Each of the Respondents herein filed timely answer to the consolidated complaint, effectively denying violations of Section 8:(a) (1) and (3) of the Act (by the Com- i This is a proceeding under Section 10 (b) of the National Labor Relations Act, as amended, 61 Stat. 136; 29 U. S. C. Supp. I, Seq. 1'41, et seq., herein called the Act. 2 The National Labor Relations Board will be referred to herein as the Board, the Gen- eral Counsel of the National Labor Relations Board or his counsel may be referred to as General Counsel, J. P. Florio & Co., Inc., may hereinafter be called the Company, General Longshore Workers Local 1418, ILA, be called Local 1418, General Longshore Workers, Local 1419, ILA, be called Local 1419, International Longshoremen's Association (Ind.) be called the ILA, and International Brotherhood of Longshoremen, AFL-CIO, be called IBL. 'All dates hereinafter mentioned are for the year 1956, unless otherwise specifically noted. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany) and violations of Section 8 (b) (1) (A) and (2) of the Act (by Local 1418 and Local 1419, and the ILA), as claimed in the consolidated complaint .4 This matter came on to be heard before the Trial Examiner at New Orleans, Louisiana, on September 11, 1956, and the hearing was closed on September 13. Immediately after the opening of the hearing, counsel for the Respondent Unions objected to the procedure before the Trial Examiner because the Company had filed answer to the consolidated complaint with the General Counsel but had failed to serve such answer on any one of the Unions. At the time these objections were made, the Trial Examiner had nothing before him except the bare pleadings con- sisting of the consolidated complaint, and the several answers filed thereto by the Respondents. He therefore reserved ruling, subject to the right of any Respondent to move to strike testimony if, after the introduction of evidence, it appeared that any party had been prejudiced through the failure of the Company to serve its answer upon any one or all of the other Respondents. The Trial Examiner could not then, nor can he now, find that prejudice has attached to the Respondent Unions because the Company did not serve copies of its answer to the consolidated complaint upon them. Simply because the cases asserted by the General Counsel were consolidated did not appear to the Trial Examiner at hearing as prejudicial to the rights of the Respondent Unions, although he did say that if prejudice were shown he would take appropriate action. As a matter of practice, the Company and the Respondent Unions were brought together for hearing; their positions are adversary to each other; had the case against the Company been noticed for hearing separately, the Unions would not have been entitled to service of the Company's answer. On consideration of the whole record, the Trial Examiner now overrules and denies the objections and supporting motions. See Franklin County Sugar Company, 100 NLRB 228. At the hearing, all parties were represented by counsel, were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, to introduce evidence relevant to the issues, to argue orally upon the record, and to file briefs and pro- posed findings of fact and conclusions of law. Argument made at the close of hearing appears upon the record. Counsel for the Company, subsequent to hearing, filed a brief with the Trial Examiner. Upon the entire record in the case, from his observation of the witnesses and after examination of all the exhibits and careful consideration of arguments and brief, the Trial Examiner makes the following: * The following provisions of the Act are relevant in this case: RIGHTS OF EMPLOYEES SEC. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in section 8 (a) (3). UNFAIR LABOR PRACTICES SEC. 8. (a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 ; s s s s a s c (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : . . . s s n s « t « (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of rights guaranteed in sec- tion 7: Provided, That this paragraph shall not impair the right of a labor organiza- tion to prescribe its own rules with respect to the acquisition or retention of member- ship therein ; . . . (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees rmi- formly required as a condition of acquiring or retaining membership ; J. P. FLORIO & CO., INC. FINDINGS OF FACT 763 1. THE BUSINESS OF THE RESPONDENT COMPANY J. P. Florio & Co., Inc., is a Louisiana corporation with its principal office and place of business in New Orleans , Louisiana, and is now and at all times material herein has been engaged in the performance of stevedoring and ship-fitting services at the port of New Orleans . During the year ending December 31 , 1955, a period representative of all times material hereto , J. P. Florio & Co., Inc., the Employer Respondent herein, received in excess of $200,000 for stevedoring and ship-fitting services from various steamship companies and other instrumentalities in foreign commerce . All such services were provided for steamships moving in foreign commerce. The Respondent, J. P. Florio & Co., Inc., is engaged in commerce and activities affecting commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED 1. The Respondents, Local 1418, Local 1419 , and International Longshoremen's Association (Ind.) are labor organizations within the meaning of Section 2 (5) and Section 8 (b) of the Act. 2. International Brotherhood of Longshoremen , AFL-CIO, is a labor organi- zation within the meaning of Section 2 (5) of the Act.5 III. THE UNFAIR LABOR PRACTICES (a) Background A collective-bargaining agreement was in full force and effect between General Longshore Workers, Local 1418, and General Longshore Workers, Local 1419, as parties on one side and on the other "the undersigned steamship companies and contracting stevedores of the Port of New Orleans, Louisiana" between October 1, 1955, and September 30, 1956. The preamble of the agreement provides in part: It is agreed between the undersigned Longshoremen's Organizations, on the one hand, and undersigned Employers (each acting individually and on its own behalf and not jointly), on the other hand, that the following agreement shall govern the payment of wages, working conditions and related matters in con- nection with longshore work performed at the Port of New Orleans. The employer shall have the right to select its employees ; provided, how- ever, that if lawful so to do at any time during the term of this contract, the employer shall require of every employee, as a condition of employment, membership in one of the signatory Locals on and after the thirtieth day fol- lowing the beginning of his employment , or the date when such condition shall become lawful, whichever is later. It is further understood and agreed that in the event the law should permit the inclusion herein of the Preference in Employment Clause contained in the contract between the parties, dated August 19 , 1947, the parties agree to amend this contract by adopting the Preference in Employment Clause as set out in said contract dated August 19, 1957. J. P. Florio & Co., Inc., the Respondent Employer herein , was one of the 41 signatories to this agreement, hereinafter sometimes referred to as the Deep Sea Agreement.6 5 According to Bulletin No. 1185, U. S. Department of Labor, Bureau of Labor Statistics (Labor Union Directory , 1955, p. 3), the International Brotherhood of Longshoremen (AFL) was established on September 24, 1953 , after the International Longshoremen's Association was expelled by the AFL convention on September 22, 1953. 6 The General Counsel at the hearing objected to the reception in evidence of the Deep Sea Agreement , on the principal ground that any union -security clause as preferential hiring clause contained therein would be in operation if the contracting labor organizations were not in compliance with Section 9 (f), (g), (h ), and (i) of the Act at the time of the execu- tion of the agreement. He cited Tacoma Harbor etc. Co., 108 NLRB 912, in support of ,his position . The Trial Examiner, on the basis of the facts herein , cannot find that the agreement contains either kind of clause . Should the Trial Examiner be found in error in this respect, the Board and the parties should know that he has been advised that the fol- 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The membership of Local 1418 is made up of white longshoremen , and the mem- bership of Local 1419 is made up of colored longshoremen . Alfred Chittenden is president of Local 1418 and Clarence Henry is president of Local 1419. Besides Chittenden, of the 10 union delegates for Local 1418 are Lloyd Seruntine and Harry Campbell . Chittenden is a vice president of ILA. Other than Henry, among the 12 union delegates of Local 1419 are James R. Tankerson , Horace Thigpen, Paul Guillory, and Willie Banks. Henry is a vice president of ILA. The men hired for longshore work are hired according to the provisions of article IV of the Deep Sea Agreement. The provisions of article IV, important herein, are quoted in full: HIRING (a) Men shall be hired by Foreman or Superintendent only, no other person will be permitted to hire. (b) Each Stevedoring Firm or Steamship Company employing members of the above named Local Unions shall at all times divide the work equally, so far as practical , among the men and gangs employed in their respective firms. (c) No longshoreman of Locals No . 1418 and No. 1419 shall be requested to arrive at place of shapeup before 7:00 A. M. in order to be employed to begin work at 8:00 A. M. or, in other words, no member of either of the above named Locals shall be requested to report for shapeup until one hour prior to shapeup time . Foreman shall not hire before 7:00 A. M. or 5 : 00 P. M. Every possible effort will be made to notify Canal Street at 6:45 A. M. and 4:45 P . M. when the employer finds that they will not require their usual gangs so that these men may be released in sufficient time to seek employment elsewhere. (d) When men report for employment and are not ordered to shipside, or, if by 8 : 00 A. M. , they are not ordered to report for a specific job at a specific time, they shall be free to return to their homes or seek other employment, and such men shall not be discriminated against or otherwise penalized for leaving. (e) When hired, no longshoreman shall be knocked off before the completion of the hatch in which he is hired at or in. This does not prohibit a man or men from being shifted from hatch to hatch, ship to wharf ; wharf to ship, or ship to ship, provided if Foreman follows gang shifting from ship to ship the completion time shall be time of completion of new job. The Company, during the times mentioned, as a matter of practice , hired its gangs for work on ships through a shapeup as customary in the port . Regular gangs were employed from day to day, as needed, according to the number of ships in port to be worked, the hiring being done at the shapeup by a company foreman for work on the ship or ships to be worked on any day . Longshoremen are accustomed to shape twice a day at Canal Street , at the port of New Orleans, and there a com- pany foreman hires the gangs for work on that day. One shape is at 7 o'clock in the morning for daywork and another shape at 5 o'clock in the afternoon for night- work. Through custom , although there is no established seniority among the men, the regular men working regular gangs usually are hired. About half of the men who shape each day are employed and are put to work on their respective regular jobs or on extra jobs, as the case may be. In the event a man regularly employed fails to shape, an extra man, who has some degree of job right , is assigned his job for that day. Thus, there may be a number of regular gangs , manned by regular and extra men. lowing information was furnished to him by the Regional Director on the closing day of the hearing : Pursuant to your request you are administratively advised that General Longshore Workers, International Longshoremen 's Association , Local 1418 (Ind.), compliance with the filing requirements of Section 9 (f) (g) expired on January 15, 1954, and its filing requirements with Section 9 (h) expired on July 23, 1954. Since those dates the Union has not renewed its compliance. General Longshore Workers, International Longshoremen's Association , Local 1419 (Ind.), compliance with the filing requirements of Section 9 (f) (g) expired on Decem- ber 31 , 1950, and filing requirements with Section 9 (h) expired on March 7, 1951. Although a Certificate of Intent was filed on January 5 , 1951, compliance was not achieved with the foregoing Sections after the stated expiring dates. This administrative notice of the compliance status of the foregoing Unions made as of this date, September 13, 1956. J. P. FLORIO & CO., INC. 765 R. B. Sigerson is operations manager for the Company, Charles A. Silver is general superintendent of the Company, and Edward A. Klein is foreman for the Company in charge of hiring longshore crews. Under the Deep Sea Agreement, grievances arise from time to time on the question of interpretations of wages, hours, and other conditions of employment which gen- erally are settled by representatives of the Company (either Superintendent Silver or Foreman Klein), with the union delegates. At times the representatives from the Union and from the Company collaborate and try to settle these grievances, if serious ones, as an on-the-spot committee. Article VI, "Working Regulations," provides in part that: All disputes shall be handled by an On-,the-Spot Committee whose decision shall be binding on both parties to the dispute. This Committee shall consist of two representatives of the employers and a representative of each of the two unions to be selected from pools available for this purpose. Failing unanimous decision either party may place the matter in arbitration in accordance with Article VIII (c) of the contract. Each party to the dispute agrees to abide by the unanimous decision of the On-the-Spot Committee or by the results of arbitration without any work stoppage. Article VIII, entitled "Disputes and Arbitration," provides in part that there shall be no cessation of work during the term of 1955-56 agreement; and that in case of a dispute on any matter arising under the agreement it should be referred to an arbitration committee consisting of representatives from both Local Unions of the Independent and representatives appointed by the New Orleans Steamship Associa- tion. This article of the agreement further provides that the committee shall hear the matter referred to it within 48 hours and that in the event no decision is reached by the committee, the grievance shall be submitted to an impartial chairman, whose decision shall be "final and binding." This article VIII further provides: That in the event any provision of this Agreement shall be found to be in violation of [the Taft-Hartley Act] only such provision shall be inoperative and the balance of the Agreement shall remain in full force and effect. The duties and responsibilities of the officers of ILA and of Local 1418 and 1419 are described and defined in the constitution and rules of order of ILA, in the constitution and bylaws of Local 1418, and in the constitution and bylaws of Local No. 1419. Certain disciplinary procedures against members of each one of the Locals are provided for in the constitution of each Local. Bocage was either sus- pended or expelled from Local 1418 because of "dual unionism" and Harvey was refused employment because he adhered to Bocage and the views of the latter with respect to organization of the Longshoremen into the IBL. (b) Union activities-ILA and IBL For a number of years ILA, together with its two local unions, 1418 and 1419, have been representative for the purposes of collective bargaining for longshoremen in the port of New Orleans. The Deep Sea Agreement, above mentioned, governed, during the times material hereto, hiring practices between the Employers (including the Company) and those employees employed as longshoremen in this port. In Local 1418, during the times with which we are here concerned, a political situation persisted between Henry and Bocage for the presidency of that local . Bocage aspired to the presidency in opposition to Henry, the incumbent. Both Henry and Bocage had been members of Local 1418 for a number of years. Henry, the president, in early 1956 was confronted with the opposition of Bocage for that office. Pre- viously, in late 1955, Bocage became interested in IBL and, together with some of his adherents, formed the Willing Workers Club in an organized effort to unseat Henry as president of Local 1418. In late 1955, at a meeting of Local 1418, Henry reported to its membership that he and Chittenden had just returned from New York, where they had entered into (at least tentatively) a pact with the Teamsters Union 7 under which the Teamsters agreed, it was reported, to support the ILA with an amount of money up to $400,000 in the event of difficulty in organization by ILA at the port of New Orleans. (At a prior meeting, Bocage questioned whether or not such a pact had been made and thereupon the presiding officer apparently upon his own motion in the absence of Henry tabled a resolution for approval of the reported pact by the membership of Local 1419.) Bocage questioned the accuracy of Henry's statements. Shortly after that meeting of Local 1419, at which the so-called "Teamsters pact" was 4 International Brotherhood of Teamsters , Chauffeurs, Helpers and Warehousemen of America, AFL-CIO. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussed, Larry Long, international president of the IBL spoke at a meeting held at 1919 St. Claude Street. Bocage together with other members of Local 1419 was pres- ent at that meeting and seems to have indicated interest in the IBL as against the ILA. Thereafter, Bocage publicly branded Henry's statements as a lie. At a regular meeting of the membership of Local 1419, subsequent to the St. Claude Street meet- ing, charges were preferred against Bocage for activities on behalf of a dual organization, and he thereafter either was suspended or expelled from membership in Local 1419. So far as the record herein discloses, Bocage was never afforded a hearing by Local 1419 or the International on the charges preferred against him. It appears further that after Bocage was either expelled or suspended by Local 1419, and on or about January 27 or 28, Henry called Operations Manager Sigerson, talked to Sigerson over the telephone, and told him that he did not want Bocage working; that Henry told Local 1419 delegates that he did not want Bocage to work; that Siger- son informed Superintendent Silver of Henry's case and instructed him that the Com- pany took the position that they intended to work Bocage. On the following day Bocage did work after the shapeup, and his job had not been finished on that day; he was still in working status on January 30. Therefore, when on Monday morning, January 30, Bocage reported to work, he still had an open job for which it was un- necessary to shape in order to start to work. On that day Harvey, who had been filling in as an extra man for a regular man on a gang (who did not shape that day) was not hired, but was deprived of his right to work, as related below. At this time, on Monday, January 30, Bocage was a member in good standing (nothing to the contrary being shown) and Harvey had paid his union dues on January 14 for the period ending April 1. (c) Refusal to allow Bocage to continue at work and the discharge of Harvey Bocage became interested in the IBL, apparently as a vehicle to help carry him on to the presidency of Local 1419, during about October 1955. Harvey, among others, was one of his supporters. After charges were preferred against Bocage in late December 1955, or early January 1956, and after Bocage among others had attended the meeting conducted by Long, IBL president, on St. Claude Street, and on Friday, January 27, Henry telephoned Operations Manager Sigerson and informed him in effect that Bocage was no longer a member of Local 1419 and was not to be given fur- ther work. Sigerson then instructed Superintendent Silver that Bocage was to be given work if possible. Silver in turn informed Foreman Klein that, in the event of difficulty at dockside, Klein was to employ Bocage in the same job at which he then was working. Prior to January 28, it appears, on the preponderance of the evidence herein, that Henry had questioned some of the members of Local 1419 concerning the activities of Bocage and others in support of the IBL.8 Henry says that when he talked to Sigerson he simply told him that Bocage was not a member of the Local at that time, and asked Sigerson not to put Bocage on the next ship "pending his appeal." According to Sigerson, he had two telephone conversa- tions with Henry. He said that Henry called him about 8 o'clock in the evening and that Henry told him "You have a man working for you named Bocage, and you'll have to knock him off"; that Henry told him further that the local council had had a meeting, that Bocage had been suspended, that "He is an organizer for the IBL and he is no longer a longshoreman, and he can't be hired until his trial is heard and he is reinstated"; that Sigerson told Henry "You know there is a law that we can't knock a man off" and that Henry replied he would have to take care of it. Sigerson said that Henry called him again the next morning, Saturday, January 28, and remarked to Sigerson "You hired Bocage again"; that Sigerson replied that they couldn't help it and informed Henry that he was ordered back to a ship on which he had been working and therefore was not required to go back to Canal Street to be hired out. Sigerson said that Henry told him "You know, Sigerson, if this guy continues this way and he organizes his union, it is going to cost you and us thousands of dollars"; that Sigerson replied that he couldn't help that because the Company had to follow the law, and that Bocage said "Well, we will have to do it Monday." Again, according to Sigerson, Henry telephoned him about 7 o'clock on Monday morning, January 30, and in- formed him that Klein had hired Bocage again and said "if Bocage is hired, the ships 8 Henry claims that charges against Bocage for dual unionism in violation of a section of the union constitution were presented at a membership meeting and that a motion was made to refer it to the grievance committee as a trial committee and that that committee tried Bocage, found him guilty, and the committee's decision was approved by the member- ship. ft does not appear that Bocage was given an opportunity to defend himself before .the trial committee. J. P. FLORIO &. CO., INC. 767 don't work, I will have to instruct my delegates to knock it off"; that Sigerson told Henry he would check the situation and that after he had talked to Silver on the tele- phone, telephoned. Henry and told Henry that Bocage had not been hired and that Klein had another man in his place. According to Klein, the foreman, he was approached by Banks, a Local 1419 delegate, at about 7:45 a. m. on January 30 when Banks told him that he could not hire Bocage, that "He was out of the Union"; that Klein asked Banks who had told him that Klein could not hire Bocage and that Banks said that he had been instructed by Henry; that Klein reported to Silver and thereafter hired Bocage and then was told that if Bocage was hired the ship could not be worked. Superintendent Silver testified that he was instructed on Saturday by Sigerson to put Bocage to work on the following Monday morning. Klein said upon that morning he went down to the docks at about 7:30 a. m.; that there were approxi- mately 75 longshoremen milling about; that Klein was there and also Banks together with Guillory, a delegate, and Thigpen, a member or delegate of Local 1419. Klein, under the instructions of Silver, had ordered out 42 men to work the SS. Julian Schroder at a dock on Governor Nichols Street; that while he, Silver, was talking to Klein, Banks joined them and said that the ship was not going to be worked because Klein had ordered Bocage down to the ship. Upon questioning by Silver, Klein said that he had sent a man named Green as a replacement; this seems to have satisfied Banks, and Banks and Thigpen left Silver and Klein together. Within a few minutes after that Chittenden, Tankerson, and Henry joined Silver and Klein. According to Silver: Well, we were discussing the situation pro and con and I informed them that all we were interested in was working the ship. We didn't want any work stoppages, and Mr. Chittenden said that these people who are affiliating them- selves with the IBL outfit, "we are not going to have them working under any circumstances." And Mr. Henry said the same thing in effect. Referring to the same conversation, Silver said: "referring to Bocage, [Henry said] he is no longer in the Union," and "we are not going to have him working on the waterfront to take our jobs away from us," and Mr. Chittenden said pretty much the same thing, that they would not permit these people who were affiliating themselves with the IBL to work on the waterfront. In net result, the company representatives capitulated to the Union's demands, and Bocage was replaced with another man and did not work that day, nor has he since worked for the Company. According to Bocage (and his testimony is substantiated by the preponderance of the testimony of the witnesses on this point), he was hired by Klein at the 7 o'clock shapeup on January 30, to continue to work on the job he had been doing the last working day before; that after being hired he went to breakfast and thereafter, just before 8 o'clock, reported to the Governor Nichols Street dock and then, after Silver and Klein had conferred with Chittenden, Banks, Tankerson, Thigpen, and Guillory and other men around, he had a conversation with Chittenden and told the latter that he had not been tried by his Union and that Chittenden replied to him: Well, we have been friends for a long time but any man that is fooling around here with the IBL, and they tell me you organized for the IBL, and I am ILA vice-president and organizer. You and anybody else is going to be knocked off, and if you are not knocked off, we will run the ships out of the Port. We are going to see who is biggest. Bocage claims that threats of physical violence were made against him while he was at dockside. The men started to work, at which time Klein told him "Bocage, I don't think you can work this morning." Bocage said that he heard Chittenden tell Silver at that particular time and also called to Klein "Didn't Willie Banks and them tell you not to hire this man?"; that an incident involving Harvey then took place; that "they" gave him (Bocage) his union card and that he left the ship and the dock. At this time he said Klein told him he was not working-"'You ain't working.' I said `okay.' " The incident involving Harvey occurred on the morning of Monday, January 30. Harvey, a longshoreman, was employed by the Company from about October 1955 up until January 30. He was a member of Local 1419; his dues in the Union were paid up until April 1. He worked for the Company as an extra man and also at times worked for other stevedores on the docks in the port. He attended meetings of Local 1419 regularly, and he also became a member of the Willing Workers Club, organized to promote the candidacy of Bocage for president of Local 1419. He was at the two meetings of Local 1419 when the subject of the so-called Teamsters' 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pact was discussed, and also attended the meeting at 1919 St. Claude Street, ad- dressed 'by-Larry Long. Harvey was present at the meeting where charges were brought against Bocage-he thinks by Thigpen, Tankerson, and' Banks-and that the ones who brought the charges said they were going to "suspend Bocage out of the organization" because "You are trying to sell us down the river to some dual organization." Harvey worked as an extra man on January 28 and was hired again at the shapeup on Monday morning, January 30. He testified that he overheard conversations between Klein, Banks, and others when Banks told Klein not to hire Bocage and Klein told Banks that he had hired Bocage and Banks would have to go to the boat to "knock him off." According to Harvey, he went to the boat. He said he was changing clothes when he saw the delegates milling about with the crowd; that he walked over there and said to Chittenden " I think you are not using the man right, trying to throw him out of the Union and taking the bread away from him, and you haven't tried him yet." As he was talking to Chittenden, Guillory said "He is with Bocage." Then, according to Harvey: I said, "I am with Bocage. Why not?" 3 said, "It is a free America. I can be with who I want to be with." He said, "You went to the meeting with Bocage." I said, "yeah, I went to that meeting with Bocage." I told him, "I don't have to ask anyone, Chink Henry or nobody, what meeting I went to." So, Chittenden said, "If he is with Bocage, take his button too and take the button of anyone else who is with Bocage." So, he grabbed me around the neck, and I used a curse word, and they ganged me just like they were going to throw me in the river. So, Chittenden said, "If you pull a knife, you are going to be filled full of .38's and thrown in the river. ." So, all of them went to hollering, "Take his button and throw him in the river, and he ain't never going to work on the river front no more or he will be filled full of holes and thrown in the river." That was the delegates and them among with Chittenden. The testimony of all of the witnesses indicates that at this time there was a great deal of confusion and milling around on the dock to which the Julian Schroder was moored (the ship to be worked that morning) and that when Johnny Turner grabbed Harvey around the neck from behind, Thigpen removed the union button from his work cap and threw it in the river.. (The button showed the longshoreman to be paid up and in good standing with the Union and therefore eligible to be worked if hired by a foreman.) After this according to Harvey, Foreman Klein instructed the man to go to work and he told Harvey "Don't go on the boat. The delegates don't want you on the boat. You might get hurt." Harvey did not work that day nor has he worked any day for the Company except he said he worked 2 days, a Monday and a Tuesday and had started work on Wednesday morning, in June when, at the demand of Tankerson, the foreman discharged him while he was at work on the job .9 He testified that the name of the foreman was unknown to him but that he was called "Little Tom"; that he asked the foreman for a statement as to why he was being knocked off and that Tankerson stated in effect not to tell Harvey any- thing except to just "tell him I knocked him off." 10 There is conflicting testimony as to whether or not, during the scuffle in which Harvey was involved, Harvey attempted to draw a knife on Chittenden. James Smith, a longshoreman, a member of Local 1419 and a sometime member of the Willing Workers Club, testified that he and another longshoreman, Frank Graham, neither one of them working that day, saw the excitement at the Governor Nichols Street dock and went over to see what was happening; that he was close enough to the melee to see that Harvey did not have a knife and that he saw Thigpen reach over and grab his cap and heard Thigpen say "Now, you go with Bocage. Don't be caught back on the dock." He said he did see Harvey with some keys in his hand but he did not have a knife; that he heard Chittenden say "Well, if he had had a knife, he would have been full of holes, because all of the men have got .38's and they would .38 him to death." Graham corroborated the testimony of Smith almost precisely. 9 He gave the date of his discharge as June 28, which would have been on Thursday. ro The record indicates that had one Rowan shaped up he would have displaced Bocage on the job for which Bocage was hired and was working on January 30; and that one Green would have replaced Harvey had Green, who had been injured, been able to shape on the morning of January 30. J. P. FLORIO & CO., INC. 769 With respect to the incidents reported as occurring on the Governor Nichols Street dock on the morning of January 20, Seruntine testified that he, Chittenden, and Campbell arrived at the wharf sometime before 8 o'clock on that morning: And we came to Governor Nichols, and we saw a group there; so, we stopped off, and Mr. Chittenden and I got out and went over, and in the meantime, Harry, Mr. Campbell, was parking the car, and we walked over there, and there seemed to be some sort of an argument going on just as we got there. Bocage called out, and he says, "Al, come over here. I would like to tell you something," and Al told him if he had anything to say, it would be best if he said it in front of everybody. So, Bocage didn't say anything else that I can remember. He walked off, and he stood on a stringer, and there was a little talk going on around in this crowd, and the next thing I knew, I heard a little kind of loud talking, and I was close to Al all the time, which I always do any time we go out, we stay pretty close together, and I heard this man-I can't remember his name right now, tell Al something that he didn't have anything to do with this. Seruntine testified further: Q. (Mr. Liska.) Is this man in the room at the present time?-A. Yes. Q. Can you point him out?-A. This man right over here with glasses on and gray hair. Mr. LISKA: Does the Court recognize that he is pointing to Harvey? TRIAL EXAMINER: Yes. The WITNESS: And there were two or three other words, and this Harvey says, "It ain't none of your so and so business." There was a little scuffling and I seen a knife in Harvey's hand and just about that time a few of the members of 1419 grabbed a hold of him-there wasn't much I could do about it, and I heard that he lost his button and cap in the scuffle. I don't know. I didn't see that part. The WITNESS: That was Harvey. They grabbed a hold of him. Why, the knife disappeared. I didn't see a knife after that. There was one big member of 1419 that reached over and grabbed him by the shoulder or something, and they all swarmed in on him. I didn't see much of that. After they straightened the thing out, well, some one said that he couldn't go to work, that he wasn't going to work that morning. Q. (By Mr. Liska.) Do you know who said that?-A. No, I don't know him. ° Campbell's testimony, in substance, confirmed what Seruntine said he had observed except, by reason of having been busy parking his automobile in which the three men had arrived, he was too late to see the full incident in which Harvey was involved. Alfred Chittenden, president of Local 1419, was called as a witness on behalf of that Respondent. Rather than to try to recapitulate, the Trial Examiner believes it best to quote his direct examination in full: Q. (By Mr. Liska.) Mr. Chittenden, we are investigating an incident that occurred at or about-that occurred on or about January 30th at or near the Governor Nichols Wharf at about eight o'clock in the morning. Were you there at that time?-A. That's right. Q. Now, what union are you a member of?-A. I am president of Local 1418. Q. There is no affiliation between 1418 and 1419?-A. Yes, we sign joint contracts, and handle our grievances under the contracts. Q. Do you have separate meetings?-A. Yes. Q. Did you attend any meeting of 1419 when Bocage was discussed?-A. No. Q. What occurred on January 30th?-A. Well, on that particular morning, we were driving down there, and we got to Governor Nichols Street. As we passed, we saw a whole group of men standing there. So, Lloyd and I got out, and Harry went to park the car. We walked up there, and we heard some loud talking. I heard just the drift of the conversation, and just at that time Alvin Bocage came out of the crowd and said, "Al, come on over here, I want to talk to you privately." Hearing the discussion at that particular time-which I never do when I'm on the docks try to talk privately, because with the stevedores, longshoremen or not, I always want everybody to hear what is said. So, Alvin come up to me 450553-58-vol. 118-50 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and started trying to tell me something about something, and I said, "Wait until after I have talked to the delegate." In the meantime, Bocage leaves me and walks toward the forward end of the ship. The forward end of the ship-I think it was a four-hatch boat, and he was fully thirty feet away from me, and when I walked into this crowd-as I walked into the crowd, Delegate Thigpen of 1419 was standing there and also Tankerson and Guillory was also there, but he was several feet in the back. In the meantime, I started talking to Thigpen to find out exactly what happened this particular morning. In the meantime, while the discussion was going on, Gus Harvey was standing there, and it was some discussion there both pro and con, and I was-I con- timied talking to Thigpen. Harvey asked a few questions of what right I had to discuss it. And I said, "I always have a right to discuss anything that pertains to membership of 1418 and 1419 to straighten the discussion out if I can." In the meantime, there was some other words passed between the delegates, Harvey, and a few of the other fellows. The first thing-I was standing right close to Thigpen in between him and Harvey, and Harvey says, "All of you are just alike. You ain't no good." In the meantime , I looked down and Harvey was coming up in his right hand with this particular knife. In the meantime , four or five of 1419 members grabbed him-his hat flies in the air, and members of 1419 themselves started roughing Harvey up. In the meantime , a man stoops down and picks Harvey's cap up. I don't worry about the hat, but I run over and pull the men off. I told them that was no place to have this kind of ruckus on the wharf, that that was an internal affair of 1419, and I made the men quit roughing Harvey up. In the meantime , I told the whole crowd, delegates and all, that this par- ticular thing was an internal affair of 1419 and that it did not pertain to the waterfront issue. That anything concerning the membership should be handled on Rampart Street. In the meantime, after that ruckus- TRIAL EXAMINER: What is Rampart Street? The WITNESS: That is where the union hall is. Because that was internal fric- tion between Bocage, who was a member of 1419 and individual officers of that particular union. In the meantime, the entire curtains along that particular vessel was open, so there was no hiding places whatsoever. The curtain is a long, sheet curtain about as wide from here over there, somewhere about twelve or fifteen feet- all open, no hidden spots. So, in the meantime, Mr. Silver was standing towards the aft end of the ship. I walked out of the crowd and walked over and talked to Mr. Silver, and I said, I told him that I thought it was a had deal that these kind of things had to happen on the wharf, and that I was sorry for it, and that I was sure that 1419 could straighten it out on the wharf. In the meantime, Bocage continued to sit down on the forward end. In the meantime, the men started dispersing out- TRIAL EXAMINER: What started this ruckus? The WITNESS: Truthfully I couldn't say, because I didn't know until I walked up there exactly what happened. A few minutes later after that, I left myself. Q. (By Mr. Liska.) Do you know anything about the Willing Workers Club?-A. No. Q. Did you give any instructions concerning Bocage?-A. No. Q. Working?-A. He was a 1419 member. I never give instructions about their membership. I usually tell them to handle it their own way. Q. Did you have any authority on behalf of the International to give any instructions?-A. No. Q. Concerning it?-A. No. Mr. LISKA: I have no further questions. On cross-examination and on redirect, Chittenden did not vary a bit from his testimony on direct examination. He denied having knowledge of the internal affairs of Local 1418, that he had any personal interest or official interest in such affairs and that he on the morning of January 30 was attempting to maintain order, J. P. FLORIO & CO., INC. 771 and to see to it, as vice president of the ILA, that problems affecting Locals 1418 and 1419 were settled to the satisfaction of the parties to dispute. As the record herein reveals, there are questions of credibility which must be resolved before findings of fact can be established as being accurate. As to Sigerson, Silver, and Klein, the Trial Examiner is convinced that they testified according to each of his best reliable memory and that the testimony of each one of them should be accorded credit. A determined attack was made on the credi- bility of Bocage, who either suffered convenient lapse of memory concerning previous convictions for crime, or deliberately lied, which would preclude full credence to be given to his testimony except, on the main facts, the testimony of others in many respects support his testimony. Henry as a witness was clever and evasive, but at the same time the overall testimony supports the main facts testified to by him. Whether Chittenden told the whole story seems not too material to decide here because, in effect, his testimony substantiates the claim made by the General Counsel: that he, together with Henry, were on official business as official repre- sentatives of their respective local unions and the ILA on the morning of January 30, when Bocage and Harvey were refused work. Almost the same general comment can be made with respect to Harvey-he testified as a partisan and some of his testimony was colored from his point of view, yet the overall picture here shows that the facts related by him as a witness were more or less accurate. The testimony of other witnesses, called mostly in corroboration of prior tetimony given by main witnesses, can be accepted in substance if not in complete detail. In full perspective, the Trial Examiner finds that it is not necessary, for the purposes of this case, to determine individual issues with respect to individual credit. The complete facts are established by the record as a whole. In summary, the following facts emerge: Bocage was suspended or, in full effect, expelled from membership in the ILA and Local 1419 for one or two or both reasons: first, his interest in and support of the IBL; and second, his opposition to Henry as a political opponent within the affairs of Local 1419; that Harvey, among others, was on the side of Bocage both as to interest in the IBL and opposition to Henry; that responsible operating officials of the Company were informed that Bocage was no longer in good standing with Local 1419 and could not work until his membership status was fully resolved; that through force the Company felt obliged to yield to the demand of officials of Local 1419 and the ILA to keep Bocage from work and that because of Harvey's attempted effort openly to support Bocage at the time he did, he was refused work by the Company at the insistence of officials and representatives of both the ILA and Locals 1418 and 1419. The Trial Examiner so finds. Concluding Findings The position taken by each of the Respondent Unions herein has by each of them, through able counsel, been maintained throughout. ILA, in answer to the consolidated complaint herein, denies that any of the individual officers or delegates named in the complaint "were authorized to represent or act for it [ILA] in connection with any matter set forth in said complaint, or, were otherwise authorized to act for or represent Respondent ILA." In substance, therefore, ILA denies that any action taken either by Chittenden or Henry, in connection with the matters involved herein, were by authority of the ILA. Local 1418, by its answer in effect denies that either Chittenden, Seruntine, or Campbell had been, or are now, an agent of any of the Respondents within the meaning of Sections 2 (13) and 8 (b) of the Act. Local.1419 denies that any of the persons named in the complaint as agents of this Local or ILA had any power or authority to act for it in the circumstances set forth in the consolidated complaint. In full effect, the answer of Respondent Union Local 1419, maintained at the hearing, shows that this Respondent contends that any action taken by Henry, Banks, Guillory, or Thigpen, in the circumstances of the case, was taken or any acts by them were taken without authority from the ILA or Local 1419. The constitution and bylaws of ILA, of Local 1418 and 1419 are in evidence herein. The provisions of each of these constitutions give broad and ample authority to officers duly elected and delegates duly appointed to perform any of the acts here charged against the officers and delegates of each one of these labor organizations. The testimony of Henry and Chittenden at the hearing in this case conclusively shows that each of them considered that they were acting within the authority conferred upon them by their respective offices, as vice presidents of ILA and as president, respectively, of Local 1419 and Local 1418. The Trial Examiner finds no difficulty in deciding that each of them was acting within the 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scope of their official authority during the circumstances above described, particu- larly on January 28 and 30.* Furthermore, Banks, Seruntine, Guillory, Tankerson, Thigpen, and Campbell, as officers or delegates, or both, of their respective local unions, were acting in their official capacities on those days. The Trial Examiner so finds." It is expressly found herein that Chittenden, Henry, and each of the other repre- sentatives, delegates or members of Locals 1418 and 1419, members of ILA, were acting in their official respective capacities and as agents of the ILA and the Local each one of them represented in connection with the events leading up to the refusal to permit Bocage to resume work and the discharge of Harvey from his work as a longshoreman for the Company. The Company argues with force that the record shows that this employer was faced with immediate work stoppage on the part of this longshore crew, with at- tendant violence, unless it subscribed and consented to the views of the Respondent Unions and their representatives and their demands that Bocage and Harvey be denied work by the Company. The Company in effect argues that it maintained every defense it could against a technical violation of law in not permitting Bocage and Harvey to continue to work for it, but was forced to yield to the superior force of the Union in order to continue in the performance of its usual business. Counsel for the Company relies, in his argument that the Company in no case should be held liable for back pay to these two men by reason of its refusal to permit them to work on and after January 30, upon National Labor Relations Board v. Edinburg Citrus Association, 147 F. 2d 353 (C. C. A. 5, 1945), N. L. R. B. v. Wytheville Knitting Mills, 175 F. 2d 238 (C. C. A. 3, 1949), and N. L. R. B. v. Spiewak, 179 F. 2d 695 (C. C. A. 3, 1949). Broadly speaking, the Company attempt to derive comfort from these cases is misplaced because in each one of them it was held that employees, under certain special circumstances, were justified in refusing to work with other employees for a number of different reasons. Here, the distinc- tion is plain; there is no proof here that other employees of the Company refused to work with Bocage and Harvey; on the contrary, Bocage and Harvey were kept from work by action of the union officials and delegates-not by refusal of other employees to work with either or both of them. Unless the facts in this case can be distinguished from what appears to be ruling precedent, the position taken by the Company is untenable. In National Labor Relations Board v. Star Publishing Co., 97 F. 2d 465 (C. A. 9), a landmark case, it was held that membership in one union did not preclude the Board from proceeding against the employer even though some employees refused to work if required to work with others. There the court said (p. 470) : Respondent further contends that it was necessary to make the transfer and thus engage in the unfair labor practice, because its business would otherwise be disrupted, and therefore, under all the facts, the transfer was excusable. We think, however, the Act is controlling. The Act prohibits unfair labor practices in all cases. It permits no immunity because the Employer may think that the exigencies of the moment require infraction of the statute. In fact, nothing in the statute permits or justifies its violation by the Employer. As said in one case, National Labor Relations Board v. O'Keefe & Merritt Mfg. Co., et al., 178 F. 2d 445 (p. 49) : But, as has more than once been said, relief for a violation of the labor rela- tions law can not be withheld because of economic pressure or pinch upon an Employer by a labor union engaged in a jurisdictional labor dispute. Unless, therefore, the position of the Company here can be distinguished from the Star Publishing case, and many others following the same principle, the Employer may here be held jointly liable with each other Respondent for the disbarment of Bocage and Harvey from work or employment by the Company. The purpose of 11 The Board has long held that duly authorized representatives of recognized labor or- ganizations need not be specifically authorized in advance to perform the acts they do per- form, nor is ratification needed to make those acts effective after the performance of such in official capacity. So long as power and authority are conferred upon the officer of a labor organization to perform certain acts, he becomes the agent of the organization he serves and the organization is responsible for such acts, expressly authorized or not. See International Brotherhood of Teamsters, Chauffeurs, etc. (The Lane Construction Corpora- tion). 111 NLRB 952 ; The Englander Company, Inc., 108 NLRB 38, and cases cited there at p. 48 ; United Electrical, Radio & Machine Workers of America, Local 91'4, etc., 106 NLRB 1.372 and comments and cases cited 1379. J. P. FLORIO & CO., INC. 773 the Act is aimed toward industrial stability. In the circumstances reflected by the facts in this case, it is clear enough that the Company and other respondents have tried to charge each other with the responsibility inherent to the whole trouble. Bocage and Harvey are victims, it seems to the Trial Examiner , of the refusal either by the Union Respondents on the one side, or the Company on the other , to accord them rights intended to be given to them as written into Section 7 of the Act. The one Respondent charged the others with wrongdoing: The Company says the Unions did it; the Unions say they did not. The position taken by each Respondent is clearly wrong in the light of remedies provided under the Act for protection of the rights accorded employees therein, and to assure labor organizations freedom properly to represent , for the purposes of collective bargaining, any appropriate bargaining group. The Act is intended, too, to afford any employer the right of protection, should the employer have doubt concerning the right of any labor organization to represent any segment of its or his employees . Here, it seems to the Trial Examiner, that the Respondent Unions and the Company were at fault in not recognizing their respective obligations under the Act and under the facts shown herein, did not (apparently ) even discuss the grievances presented (under contract provisions ) as to whether Bocage or Harvey, or either of them, was entitled to work on January 30. Instead, all parties invoked the law of the jungle, without regard to contractual obligation . The arbitration provisions of the Deep Sea Agreement have been referred to above; the Trial Examiner believes that the grievances in- volving Bocage and Harvey should have been settled by the on-the -spot committee, or through arbitration , and without invocation of the procedures obtainable under the Act. The Act having been invoked, the Trial Examiner is required to make findings of fact and thereupon base his conclusions of law. Whether measured by abdication of management rights or force exerted by union strength, the result still is wrong if individual rights through collective action are invaded or abandoned by union action or company inertia, against the provisions of Section 7 of the Act. The bare facts are, as the Trial Examiner sees them, that those parties to the Deep Sea Agreement who are Respondents herein chose , at convenience to them , to disregard provisions intended to settle such a dispute as has been presented in this case . Whether Bocage and Harvey are reliable or unreliable citizens is beside the point. No one of the Respondents is entitled to disregard the plain provisions of the Act or their contractural obligation at their own convenience. The Trial Examiner finds that the Company was and still is obligated to employ Bocage and Harvey, notwithstanding pressure exerted upon it not to permit these two men to work. It was, and now is, in violation of Section 8 (a) (1) and (3) of the Act. N. L. R. B. v. Radio Officers' Union, 347 U. S. 17. It further is found that ILA, and Local 1419 have engaged in unfair labor practices in violation of Section 8 (b) of the Act . Local 1418, having assisted by its agents likewise is found to have engaged in activities prohibited by the Act. Both Bocage and Harvey were members in good standing on January 20-the constitution of the Local regarding suspensions and expulsions from membership was not observed as to Bocage, and Harvey almost literally was thrown out of membership in the Local and employment by the Company. If the Act means anything, it does mean that no labor organization is so powerful as to be able to evade the plain intent of the Congress , and the policy, of the Board , to obtain industrial peace through bona fide observance of the provisions of Section 8 (b), by the use of force. The provisions of this Section of the Act which the Respondent Unions are charged with violating are so plain as to make further discussion unnecessary. The right of the labor organizations set forth in the proviso con- tained in Section 8 (b) (1) (A) of the Act has not been shown to have been impaired. The restraint and coercion against Bocage and Harvey exercised by each of the Respondent Unions, and against the Company by them, through their agents, is fully apparent on the record. Therefore, the Trial Examiner finds that ILA, Local 1418 and Local 1419 have been and now are in contravention of Section 8 (b) (1) (A) and (2) of the Act. The violations now found committed by each of the several Respondents have the necessary effect of discouraging the rights of employees to organize and engage in concerted activities as guaranteed to them by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The respective activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Respondent Company , described 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent Company has engaged in unfair labor practices violative of Section 8 (a) (1) and 8 (a) (3) of the Act, and that the Respondent Unions have engaged in unfair labor practices in violation of Section 8 (b) (1) (A) and 8 (b) (2) of the Act. In view of the findings, the Trial Examiner shall recommend that the Respondents cease and desist from their respective unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. The Trial Examiner shall also recommend that the Respondent Unions furnish copies of its notice, hereinafter referred to, to the Regional Director, said notices to be posted on the Company bulletin board, the Respondent Company willing. It having been found that the Respondent Unions caused the Respondent Company to discharge Alvin Bocage and Gus Harvey on January 30, 1956, and that such discharge violated Section 8 (a) (3) of the Act, the Trial Examiner shall recom- mend that the said Respondent Company offer Alvin Bocage and Gus Harvey immediate and full reinstatement to their respective former or substantially equiva- lent positions without prejudice to their seniority or other rights and privileges, and that the Respondent Company and the Respondent Unions jointly and severally make the said Alvin Bocage.and the said Gus Harvey whole for any loss of pay either one of them may have suffered as a result of a discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of his discharge to the date of the offer of reinstatement less his net earnings, the loss of pay to be computed on a quarterly calendar basis in accordance with the formula adopted by the Board in F. W. Woolworth Co., 90 NLRB 289. It having been found that the Respondent Company, in violation of Section 8 (a) (1) of the Act, has interfered with, restrained, and coerced employees in the exercise by them of rights guaranteed by Section 7 of the Act, and that the Respondent Unions in violation of Section 8 (b) (1) (A) and (2) of the Act, have restrained and coerced employees in the exercise of such rights, the Trial Examiner shall recommend that the Respondent Company and the Respondent Unions be directed to cease and desist in the future from committing the said respective violations of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Longshoremen's Association (Ind.); General Longshore Workers, Local 1418, ILA; and General Longshore Workers, Local 1419, ILA, are and at all times material herein have been, labor organizations within the meaning of Section 2 (5) of the Act. 2. J. P. Florio & Co.. Inc., is and at all times material hereto has been an Employer within the meaning of Section 2 (2) of the Act. 3. By discriminating in regard to the tenure of employment of Alvin Bocage and Gus Harvey the Respondent Company has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act, the Respondent Company has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By causing the Respondent Company to discriminate in regard to the tenure of employment of Alvin Bocage and Gus Harvey in violation of Section 8 (a) (3), the Respondent Unions have engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By restraining and coercing persons employed by the Respondent Company in the exercise or rights guaranteed to'them by'Section 7 of the Act, the Respondent Unions have engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.]