Warehouse & Distribution Workers' Union Local 207

342 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD Charles Carter, Carson Goff, Charles Presswood, Vernon Ridner, James Thomas, and Augustus Watson. It is further found that by these layoffs and by its failure and refusal to reinstate said employees, the Respondent discriminated in respect to hire and tenure of employment of employees, discouraged membership in the Union, and interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in, connection with its operations described in section I, above, have a close, intimate, and substantial rela- tion 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 Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom, and take certain affirmative and remedial action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer Matthew Heeger, Clarence Buck, Charles Carter, Carson Goff, Charles Presswood, Vernon Ridner, James Thomas, and Augustus Watson immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges, and make them whole for any wage losses incurred as a result of the discrimination against them, in accordance with the Board's usual remedial policies. Whether the eight employees would be presently employed if the Respondent had followed nondiscriminatory reduction-in-force policies, and if not for how long they would have continued to be employed by the Respondent nondiscriminatorily, are questions to be determined at the compliance stage of proceedings-if the parties are unable to reach agreement thereon. See J. S. Brown, et at., 115 NLRB 594; cf. East Texas Steel Castings Company, Inc., 116 NLRB 1336. Provision is made for the reinstatement of Ridner because it is not clear whether his rehiring included restoration of all his rights and privileges. Upon the basis of the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local No. 183, International Association of Sheet Metal Workers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of the em- ployees named above, and discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent did not engage in surveillance of the union meeting of January 23, 1956. (Recommendations omitted from publication.] Warehouse & Distribution Workers' Union Local 207 of the In- ternational Longshoremen's and Warehousemen's Union and Mitchell Pierce Waterway Terminals Corporation and Mitchell Pierce. Cases Nos. 15-CB-160 and 15-CA-888. June26,1957 DECISION AND ORDER On October 8, 1956, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding finding that the 118 NLRB No. 52. WAREHOUSE & DISTRIBUTION WORKERS' UNION LOCAL 2.07 343 Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 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 Leedom and Members Murdock and Rodgers]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case sand hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent consistent herewith. The Trial Examiner found that the Respondent Company did not violate Section 8 (a) (3) and (1) of the Act by denying employment at the Galvez Street wharf to Mitchell Pierce, the Charging Party, and 9 other employees named in the complaint, and that the Respondent Union did not violate Section 8 (b) (2) and (1) (A) of the Act by causing the Company to deny such employment. In so doing, the Trial Examiner found that the reason the Union opposed the employ- ment of the Harahan employees was not their previous refusal to join in the Union's strike against the Company but rather the Company's failure to comply with its alleged contractual obligation to notify employees who had seniority at the Galvez Street wharf of the exist- ence of work opportunities there. He therefore concluded that the denial of employment was not such discrimination which encouraged union membership within the meaning of the Act. As the evidence persuades us that the employees in question were not hired by the Company at the demand of the Union because of their prior refusal to support the Union's strike, we find, in disagreement with the Trial Examiner, that the Company and the Union respectively violated Sec- tion 8 (a) (3) and (1) and Section 8 (b) (2) and (1) (A) of the Act. It is undisputed that the Respondent Union, which was the bargain- ing representative of the Respondent Company's employees at the Galvez Street wharf, had a dispute with the Company over the use of certain pallets and called the Galvez Street employees out on strike. To make this strike more effective, the Union, which also `represented the Company's employees at its Harahan warehouse, requested the Harahan employees to join in the walkout.' This they refused to I Contrary to the Trial Examiner's assertion , there is no testimony in the record denying that Union President Nelson requested the Harahan employees to walk out in sympathy with the Galvez Street employees . General Counsel 's witnesses Mitchell Pierce, Edward Thigpen, and Henry Bryant testified that Nelson made such request. Sheppard , the Re- spondent Union's committeeman , testified in effect that he did not participate in the con- 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do.2 About 2 weeks later, the strike ended and the Galvez Street em- ployees returned to work. To assist in cleaning up the accumulation of work that resulted from the strike, the Company assigned the 10 Harahan employees involved herein to work temporarily at the Galvez Street wharf. On November 30 these employees reported at the shape- up and were denied employment because of the Union's objection, al- though jobs were concededly available.3 No reason was given a the time by the Union for its objection other than the men would not work with the Harahan employees, and no questions were asked by the Company. Although the Union's explanation given at the hearing for its opposi- tion to the employment of Harahan employees is not too clear, it seems to rely on its interpretation of its contract with the Company that no Harahan employees could be hired unless the Company first gave notice of job openings to all employees appearing on the seniority list for the Galvez Street operation, even though they had not appeared at any shapeup in a year or more. The Company, on the other hand, states that it yielded to the Union's demands only to avoid another strike. In our opinion, the evidence convincingly establishes that the Union's asserted reason for the discrimination against the Harahan employees is a mere pretext for its true motivation, which was to penalize these employees for exercising their statutory right to re- frain from supporting the Union's strike at Galvez Street wharf. Not only does there appear to be no reasonable basis in the contract for the Union's ostensible interpretation of the notice requirement,' but actually the custom and practice of hiring at the time of the incident was to the contrary. The record discloses that before No- vember 30, Harahan employees were eligible for employment at the Galvez Street wharf and were in fact hired after Galvez Street em- ployees who appeared for jobs were first hired. However, there never was any additional requirement to the hiring of Harahan employees that Galvez Street employees who did not appear at the shapeup first versation between Nelson and Brown ( union vice president and committeeman) on the one hand and the Harahan employees on the other. Brown denied that he had asked the employees to go out on "strike" maintaining that there had been no "strike", at Galvez Street but simply a "labor dispute." Brown testified that he did not remember if Nelson had asked the employees to do anything. Nelson, although present at the hearing, did not testify. 9 Contrary to the Trial Examiner 's finding, the fact that the Union did not insist on the Harahan employees joining the strike, after its efforts to persuade them to join the strike failed, does not necessarily establish that the Union approved the decision of the Harahan employees or that the Union did not thereafter take retaliatory .measures against them for the uncooperative conduct. 3 It is undisputed that Blanchard , the Company 's foreman at Galvez Street , instructed the Company's timekeeper to hire all employees who appeared at the shapeup on No- vember 30. 4 Section 3 (b) of article IV of the contract reads simply that : "When for any reason, the working force shall be increased, the employees shall be returned to work in the order of their seniority." There is no question that all Galvez Street employees who, in accord- ance with the established practice, appeared at the wharf on November 30 were employed. WAREHOUSE & DISTRIBUTION WORKERS' UNION LOCAL 207 345 be given special notice.' Indeed, it is undisputed that the Union apprised the Company for the first time that it considered it to be a violation of their contract to hire Harahan employees without the required notice 6 several days after the November 30 episode and only after the Harahan employees had refused to participate in the Galvez Street strike. That the absence of notice could not be the real reason for the Union's opposition to the employment of the Harahan employees is also indicated by the fact that after the Galvez Street employees were hired at the November 30 shapeup, the Union arbitrarily voiced its objection to the employment of all the Harahan employees, without even bothering to verify whether any of these Hara1 a.n employees also had Galvez Street seniority. Plainly, such employees, according to the Union's contention, would have qualified for employment even in the absence of the required notice. Yet, it appears that at least Pierce,' Brandon, and Hicks, who were in the shapeup line for em- ployment on that day and had that Galvez Street seniority, were nevertheless denied jobs. In addition, the Union forced the Company to discharge Pierce on December 7, after the Company had hired him in disregard of the Union's opposition. Significantly, while the Union was objecting to the employment of Harahan men because of alleged seniority questions, the Union made no objection to the em- ployment of new employees who had no seniority at either terminal. The true motive underlying the Union's opposition to the employ- ment of Harahan employees is plainly revealed in the conversations between Herbert Thomas and union officials, which are not fully set forth in the Intermediate Report. Herbert Thomas was one of the Harahan employees on the shapeup line who was denied employment because of the Union's objection. Thomas, a credited witness, testi- fied that shortly after the Harahan employees were refused employ- ment, he spoke to Union Vice President and Committeeman Lee 5 The Trial Examiner is in error in stating that the Company's practice included noti- fication by letter. The record shows that the accepted practice of notifying employees to report for work was to mark a bulletin board with the number of employees required for the following day. However, it appears that the Company at times would contact some employees by telephone and at other tunes would inform employees to spread the word among their friends that work was available. 5It appears that the only dispute the Union had with the Company concerning seniority was whether to adopt a companywide seniority system or continue the existing practice of terminal seniority. Such discussions took place about October 25, 1955, with no changes being agreed upon. It is significant that the Union raised no question at that time with respect to the hiring practices at the Galvez Street wharf. In a colloquy between the Trial Examiner and Union President Nelson, the latter stated that Pierce had seniority at Galvez Street wharf and was entitled to notice of job openings. The record also shows that following the Company's agreement with the Union on December 13, written notice was sent to Pierce, among other employees. The Trial Examiner's statement in the Intermediate Report that Pierce "apparently" had transferred his Galvez Street seniority to Harahan is thus inaccurate. In any event, there is certainly no explanation why Brandon and Hicks, who had the same Galvez Street seniority as Herbert Thomas, were not hired on November 30. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown and informed him that he did not work during the Galvez strike." Brown told Thomas that he and other union officials thought that Thomas had worked during the strike and that this was the only reason he was not hired. Brown and Thomas then apprised the other union committeemen of the fact that Thomas had not worked during the strike and asked their approval of Thomas' employment at Galvez Street. All the committeemen were agreeable.9 There upon Brown, accompanied by Thomas, informed the Company's Foreman Blanchard that a mistake was made and that Thomas could be employed. Thomas was told to report for work the next day, which he did, and was hired. It is clear from the foregoing that the Harahan employees were denied work at Galvez Street solely because of their refusal to cooperate with the Union in its Galvez Street strike. The Trial Examiner's attempt to justify Thomas' hiring on the ground that he had Galvez Street seniority and therefore was eligible for immediate work cannot be sustained by the record. Not only was no mention made of seniority in Thomas' conversations with the union officials, but it also leaves unexplained the Union's failure to permit the employ- ment of the other Harahan employees who, as indicated above, also had the same seniority at Galvez Street as did Herbert Thomas. Nor did the Union explain why it permitted the employment of new employees without any seniority at all. In our opinion, the only reason for the disparity of treatment accorded Thomas and that accorded the other Harahan men lay in the fact that Thomas did not work during the strike whereas the others did.10 8 ellthough we find it unnecessary to disturb the Trial Examiner's credibility finding that fierce and Bryant were mistaken in their testimony that union officials stated at the time of the November 30 incident that the Galvez men would not work with the Harahan men because the Harahan men did not support their strike, it seems to be more than coincidental that Herbert Thomas should try to get union clearance by informing them that lie did not work during the strike. Moreover, a company interoffice memorandum from Superintendent Stumpf states that he had been able to establish "through the grape- vine that the reason for the Galvez Street employees' actions was due to the fact that the Harahan men refused to stop work during the time the Galvez Street men were on strike." Committeeman Sheppard gave testimony, which is not alluded to by the Trial Exam- iner, in which he admitted that lie had a conversation with Brown relative to Thomas' employment. He testified further that he agreed to Thomas' hiring because he believed that Thomas had agreed from then on to abandon his Harahan seniority and transfer to Galvez Street. Sheppard also held to the opinion , contrary to the accepted and cred- ited testimony of Thomas, that Thomas had not even appeared in the shapeup that morning among the Harahan men. Committeeman Brown, who also testified, did not contradict Thomas' testimony. No other committeeman testified. 10 Further evidence of the Union's discriminatory motive is revealed in the uncontra- dicted testimony of Bryant, a Harahan employee, which is not alluded to in the Inter- mediate Report. He testified that he telephoned Union President Nelson and union committeeman and steward, Earl Thomas, shortly after the events of -November 30 and asked them when the situation at Galvez Street would be straightened out so that he could go to work there ; that Nelson told him that lie did not know but added that "we [meaning the Harahan employees] wouldn't cooperate with the fellows" ; and that Earl Thomas replied that "we didn't walk out with them and didn 't cooperate with them in the strike." WAREHOUSE & DISTRIBUTION WORKERS' UNION LOCAL 207 347 Finally, if the reason for the Union's objection to the hiring of Harahan employees was the lack of notice to Galvez Street employees, and not the Harahan employees' refusal to join in the Galvez Street strike, the Union has not explained its continued hostility to the Harahan men after the Company settled this matter with the Union and sent out the required notices on December 13. Thus, when the Company hired several Harahan men on December 14 to work at the Galvez Street wharf, the Union still refused to permit two Galvez Street employees to operate lift machines for the Harahan men and when Harahan men were used to operate these machines the Union protested. In our opinion, this continued hostility to the Harahan employees can only be attributable to the Harahan employees' prior refusal to join in the Galvez Street strike. Section 7 of the Act guarantees employees the right to refrain from assisting a labor organization in its strike or other concerted activi- ties. Therefore, by acceding to the Respondent Union's demands to deny the 10 Harahan employees' employment at the Galvez Street wharf and later to discharge one of them (Pierce) because they'refused to support the Galvez Street strike, the Respondent Company dis- criminated against these employees to encourage membership in the Union within the meaning of Section 8 (a) (3) of the Act." Con- trary to the Trial Examiner's opinion, the fact that the Company was motivated by economic considerations and not union animus does not negate the inference that the necessary effect of the discrimination was to encourage membership in the Union or excuse conduct which interferes with employees' statutory rights.12 We also find that the respondent Union, by threatening work stoppages if they hired Hara- han employees, attempted to cause and actually did cause the Respond- ent Company to discriminate against them in violation of Section 8 (b) (2) 13 of the Act. By reason of the foregoing conduct, we further find that the respondent Company interfered with, restrained, and coerced employees in violation of Section 8 (a) (1) of the Act and the Respondent restrained and coerced employees in violation of Section 8 (b) (1) (A) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, as set forth above, which have been found to constitute unfair labor practices, occurring in connection 11 It is well settled that discrimination to encourage union membership may result whether or not the discriminatee is a member of the union . Radio Officers' Union etc. v. N. L. R. B., 347 U. S. 17. Insofar as the Trial Examiner indicates a contrary view he is in error. 12 N. L. R. B. v. Hudson Alotor Car Company, 128 F. 2d 528 (C. A. 6). 13 As it appears that Thomas was also discriminatorily denied employment for 1 day at least because the Union thought that he had also refused to join the Galvez Street strike, the Union and the Company violated the Act with respect to him, as well as to the other Harahan employees. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the operations of the Respondent Company, described in the Intermediate Report, 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. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, we shall require them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent Company on November 30, 1955, discriminatorily denied employment to the employees named below 11 and, in addition, discriminatorily discharged Mitchell Pierce on December 7, 1955. We have also found that the Respondent Union unlawfully caused such discrimination. However, such unlawful conduct continued only until December 14, 1955. Accordingly, we shall order the Respondents jointly and severally to make the dis- criminatees whole for any loss of pay which they may have suffered by reason of the discrimination practiced against them by payment to each of them of a sum of money equal to the amount each normally would have earned as wages from November 30, 1955, to December 14, 1955, both inclusive, less his net earnings 15 during this period. We shall further order the Respondent Union to cease and desist from in any other manner infringing upon employees' rights guaran- teed in Section 7 of the Act. We find that such an order is neces- sary to satisfy the remedial objectives of the Act because the Respond- ent Union's unfair labor practices reveal an attitude of opposition to the purposes of the Act.16 However, since we are not persuaded by the Respondent Company's past conduct that it is similarly disposed to interfere with the employees' rights, we shall simply order the Respondent Company to cease and desist from engaging in the unfair labor practices found and any like or related conduct. CONCLUSIONS OF LAW 1. Waterway Terminals Corporation, a Missouri corporation, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Warehouse & Distribution Workers' Union, Local 207 of the International Longshoremen's and Warehousemen's Union, is a labor organization within the meaning of Section 2 (5) of the Act. 14 These employees are : James Brandon, Jr., Henry Bra ant, Robert Lee Hicks, Robert Lee Howard, Mitchell Pierce, Samuel Rowan, Dave Straughter, Jr., Edward Thigpen, Herbert R . Thomas, and Samson Williams. 11 Crossett Lumber Company, 8 NLRB 440. 1ON. L. R. B. v. Entwistle Manufacturing Company, 120 F. 2d 532, 536 (C. A. 4). WAREHOUSE & DISTRIBUTION WORKERS' UNION LOCAL 207 349 3. By discriminating against its Harahan employees to encourage membership in the Respondent Union, the Respondent Company has engaged, and is engaging, in unfair labor practices within the mean- ing of Section 8 (a) (3) of the Act. 4. By causing and attempting to cause Waterway Terminals Cor- poration to discriminate against employees in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 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 : 1. The Respondent Waterway Terminals Corporation, New Orleans, Louisiana, its officers, agents, successors, and assigns, shall: (1) Cease and desist from : (a) Encouraging membership in Warehouse & Distribution Workers' Union, Local 207 of the International Longshoremen's and Warehousemen's Union, or in any other labor organization of its employees, by refusing to hire applicants for employment, or dis- charging employees or, in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees or applicants for employment in the exercise of their right to self-organization, to form, join, or assist labor or- ganizations, and to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such,rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. (2) Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) 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 determine the amount of back pay due under the terms of this Order. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its offices and places of business in New Orleans and Harahan, Louisiana, *copies of the notice attached hereto marked "Appendix A." 11 Copies of said notice, to be furnished by the Re- gional Director for the Fifteenth Region, shall, after being duly signed by the Respondent Company's representative, be posted by it immediately upon receipt thereof, and maintained by it for at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fifteenth Region, in writing, within ten (10) days from the date of this Order what steps this Respondent has taken to comply herewith. 2. The Respondent, Warehouse & Distribution Workers' Union, Local 207 of the International Longshoremen's and Warehousemen's Union, its officers, representatives, agents, successors, and assigns, shall : (1) Cease and desist from : (a) Causing or attempting to cause the Respondent, Waterway Terminals Corporation, to deny employment to any applicant for employment, to discharge any employee, or otherwise to discriminate against them in violation of Section 8 (a) (3) of the Act. (b) In any other manner restraining or coercing employees of, or applicants for employment with, the Respondent, Waterway Ter- minals Corporation, or any other employer, in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent author- ized in Section 8 (a) (3) of the Act. (2) Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Notify the Respondent, Waterway Terminals Corporation, in writing, that it has no objection to the hiring and employment by said Company of : James Brandon, Jr. Samuel Rowan Henry Bryant Dave Straughter, Jr. Robert Lee Hicks Edward Thigpen Robert Lee Howard Herbert R. Thomas Mitchell Pierce Samson Williams and mail copies of such notice to the aforementioned persons. (b) Post at its offices and meeting halls in New Orleans and Hara- han, Louisiana, copies of the notice attached hereto marked "Ap- pendix B." 18 Copies of said notice, to be furnished by the Regional it 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." 14 See footnote 17, supra. WAREHOUSE & DISTRIBUTION WORKERS' UNION LOCAL 207 351 Director for the Fifteenth Region, shall, after being duly signed by the Respondent Union's representative, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, 'including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. 3. The Respondent, Waterway Terminals Corporation, its officers, agents, successors, and assigns, and the Respondent, Warehouse Distribution Workers' Union, Local 207 of the International Long- shoremen's and Warehousemen's Union, its officers, representatives, agents, successors, and assigns, shall jointly and severally make whole James Brandon, Jr., Henry Bryant, Robert Lee Hicks, Robert Lee Howard, Mitchell Pierce, Samuel Rowan, Dave Straughter, Jr., -Edward Thigpen, Herbert R. Thomas, and Samson Williams, for any loss of pay they may have suffered because of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent Union threatened employees of Respondent, Waterway Terminals Corporation, with loss of employment, discriminatory conditions of employment and other reprisals in violation of Section 8 (b) (1) (A) of the Act. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT encourage membership in Warehouse & Distri- bution Workers' Union, Local 207 of the International Long- shoremen's and Warehousemen's Union, or in any other labor organization, by refusing to hire applicants for employment or discharging employees or in any other manner discriminating against them, in regard to their hire or tenure of employment or any term or condition of employment except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees or applicants for employment in the exercise of their right to self-organization, to form, join, or assist labor organizations and to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aid or protection or to refrain from any or all of such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL jointly and severally with Warehouse & Distribution Workers' Union, Local 207 of the International Longshoremen's and Warehousemen's Union make whole the persons named below for any loss of pay they may have suffered because of the discrimination against them : James Brandon, Jr. Samuel Rowan Henry Bryant Dave Straughter, Jr. Robert Lee Hicks Edward Thigpen Robert Lee Howard Herbert R. Thomas Mitchell Pierce Samson Williams All our employees are free to become, to remain, or to refrain from becoming or remaining members of the above-named Union or any other labor organization, except to the extent that this right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the-Act. WATERWAY TERMINALS CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS OF WAREHOUSE & DISTRIBUTION WORKERS' UNION, LOCAL 207 OF TIIE INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN 'S UNION AND TO ALL EMPLOYEES OR APPLICANTS FOR EMPLOYMENT WITH WATERWAY TERMINALS CORPORATION 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 Waterway Terminals Corporation to deny employment to any applicant for employ- ment, or to discharge any employee, or otherwise to discriminate against them in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of, or applicants for employment with,'Waterway Terminals Cor- WAREHOUSE & DISTRIBUTION WORKERS' UNION LOCAL 207 353 poration in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent authorized in Section 8 (a) (3) of the Act. WE WILL notify Waterway Terminals Corporation in writing and furnish copies of such notification to the persons named below that we have no objection to their employment by said Company : James Brandon, Jr. Samuel Rowan Henry Bryant Dave Straughter, Jr. Robert Lee Hicks Edward Thigpen Robert Lee Howard Herbert R. Thomas Mitchell Pierce Samson Williams WE WILL jointly and severally with Waterway Terminals Cor- poration make whole the persons named below for any loss of pay they may have suffered because of the discrimination against them : James Brandon, Jr. Samuel Rowan Henry Bryant Dave Straughter, Jr. Robert Lee Hicks Edward Thigpen Robert Lee Howard Herbert R. Thomas Mitchell Pierce Samson Williams WAREHOUSE & DISTRIBUTION WORKERS' UNION, LOCAL 207 OF THE INTERNATIONAL LONGSHORE- MEN'S AND WAREHOUSEMEN'S UNION7 Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDERS STATEMENT OF THE CASE Upon charges filed on December 1, 1955, and amended on April 23, 1956, by Mitchell 'Pierce,: an individual, against Warehouse & Distribution Workers' Union, Local. 207, of--the., Internationale Longshoremen 's 'and Warehousemen's* Union, here- inafter called the Union or Respondent Union, and against Waterway Terminals Corporation , hereinafter referred to as the Company or Respondent Company, the General Counsel of the National Labor Relations Board, hereinafter respectively referred to as the General Counsel and the Board,' issued its complaint dated April 24, 1956, against said Respondents alleging that Respondent Union had en- gaged in unfair labor practices affecting commerce within the meaning of Section 8 (,b) (2) and 8 (b) (1) (A) and that Respondent Company had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (3) and (1) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 1 The term General Counsel specifically includes counsel appearing for the General Counsel at the hearing. 450553-58-vol. 118-24 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 61 Stat. 136, herein called the Act. Copies of the complaint, the various charges and notice of hearing were duly served upon the Respondents. Respondents duly filed individual answers in which each admitted certain allega- tions of the complaint, but denied the commission of any unfair labor practices. Respondent Union's answer as originally filed did not comply with the Board's Rules and Regulations applying thereto. At the beginning of the hearing General Counsel moved that, regarding the Respondent Union, "the allegations of the com- plaint be deemed to be admitted to be true in that there is no answer filed." The Trial Examiner denied this motion, but conditioned the denial upon the Union's prompt compliance with the Rules and Regulations relating to the filing of answers. The condition was promptly met. In substance the complaint alleged that from on or about November 30, 1955, until about December 15, 1955, Respondent Company failed and refused to employ or work 10 named individuals upon the demand of Respondent Union that it refrain from hiring or working said individuals because of threatened work stoppages, slow- downs, and strikes if said individuals were hired because of Respondent Union's knowledge and belief that said individuals "refrained from engaging in work stop- pages, strikes and other activities in behalf of Respondent Union and to encourage membership and activities in behalf of Respondent Union." Pursuant to notice, the hearing was held on July 26 and 27, 1956, in New Orleans, Louisiana, before the Trial Examiner . All parties were represented at the hearing and were given full opportunity to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues . At the conclusion of the hearing the parties argued orally and were advised of their right to file briefs, proposed findings of fact, and conclusions of law, or both. Briefs have been received from Respondent Company and the General Counsel. Upon the record in the case , and upon observation of the demeanor of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT COMPANY Waterway Terminals Corporation, a Missouri corporation with its principal office in St. Louis, Missouri, is now, and at all times material herein has been, engaged in the performance of stevedoring and terminal operations in the State of Louisiana at the port of New Orleans, Louisiana, and at Harahan, Louisiana. During the year ending December 31, 1955, which period is representative of all times material herein, Respondent Company received in excess of $500,000 for steve- doring and terminals services performed for various steamship companies, railroads, and other instrumentalities of interstate and foreign commerce, approximately 90 percent of which services consisted of loading , unloading, or storing goods moving in interstate or foreign commerce. The Trial Examiner finds that the Respondent Company is engaged in commerce within the meaning of the Act. II. THE RESPONDENT LABOR ORGANIZATION INVOLVED Warehouse & Distribution Workers' Union, Local 207 of the International Long- shoremen's and Warehousemen's Union, is a labor organization admitting to membership employees of the Respondent Company. III. THE UNFAIR LABOR PRACTICES A. The facts At all times here involved Respondent Company was engaged in three operations in the vicinity of New Orleans. Its main operation was stevedoring at the Galvez Street wharf in the city of New Orleans. At Harahan, approximately 13 miles distance from the Galvez operation, the Company was engaged in operating a ware- house under contract with General Services Administration. It also maintained an operation known in this record as the Cotton Warehouse. At least at its Galvez Street and Harahan operations the Company recognized the Union as the representa- tive of its employees. The relation between the parties at Galvez Street was covered by an extensive labor agreement while the Harahan operation continued under an oral agreement as the signing of a written contract has been delayed by mutual consent although there had been some negotiations regarding these operations as WAREHOUSE & DISTRIBUTION WORKERS' UNION LOCAL 207 355 late as October 25, 1955. By letter dated November 23, 1955,2 the Union had notified the Company that the "present Union Committee" consisted of Peter Shep- pard, Jr., Earl Thomas, Lee Brown, Nick Vidros, Arcenia Jackson, and Mitchell Pierce.3 At both Galvez Street and Harahan the Company hired the employees necessary for the day's operations from those employees who appeared each morning seeking work in accordance with their agreed-upon seniority. At Galvez Street, for in- stance, the Company each evening wrote on its blackboard the number of men in each labor category it would need the following day. The following morning the men would appear, shapeup, align themselves in order of their seniority, walk up some steps past the timekeeper's window, announce his number which the time- keeper would thereupon note in his time book and thus be hired for each day's work. When the desired number of employees had filed past the window, the timekeeper would quit hiring and those remaining in the line would not be em- ployed for that day.' On those days when the men holding seniority rights at Galvez Street had all been hired and the Company still desired more employees, it would hire any new men who might have been in the shapeup. When the Com- pany knew ahead of time that it would require a larger number of employees than usually appear for the shapeup, it would pass the word of this requirement to those employed and urge them to bring in their friends and would also notify others on the seniority list by word of mouth or by letter of the opportunity for securing work. Seniority began with the date of a man's first employment by the Company and lasted until the Company and Union agreed upon a new seniority list in which the old seniority list would be brought up to date by the elimination of those who had died, left the community, or failed to work, etc. Respondent Company had a rule whereby an employee was dropped from its payroll records after. failing to work during a 90-day period, but this apparently did not affect the man's stand- ing on the seniority list until the compilation of the new list which occurred only at irregular intervals. The Galvez Street and Harahan operations each had its own separate and distinct seniority list although as late as about October 25, there had been negotiations between the Respondent Company and Union over the possi- bility of creating one seniority list applicable for both operations. The Company apparently favored separate seniority lists for each operation. On November 17, a dispute arose between the Union and Company at the Galvez Street operation regarding the pallet loads which closed down that operation until 8 a. m., November 29, when the men returned to work on the dock. Soon after the dispute began on November 17, Andrew Nelson, local union president, Lee Brown, local union vice president and committeeman and Peter Shep- pard, local union second vice president and committeeman, drove to Harahan where they met with the membership of the Union at that operation and explained about the dispute and shutdown at Galvez Street. There was some talk about the Harahan employees assisting those at Galvez Street during the shutdown. There is testimony in the record, which was denied, that Brown, Sheppard, and Nelson requested the Harahan employees to walk out in sympathy with the Galvez Street employees. In addition, all the testimony proved that the meeting at Harahan ended with the agreement that the Harahan employees would continue working at least until the following Monday in the hopes that the Galvez Street dispute would be settled by that time and that , prior to that Monday, Nelson would confer with the repre- sentatives from Harahan again as to what assistance the Harahan employees could render. Mitchell Pierce, the Charging Party here , as well as a union committeeman for Harahan, conferred with Nelson, Brown, and Sheppard over the weekend prior to the Monday in question at which time all of these union officials instructed him that it would be all right for the Harahan employees to continue working at Harahan. This testimony was corroborated by the fact that Lee Hardin, a fore- man at Harahan, also conferred with Nelson as to what the Harahan men should do and was also told by Nelson to tell the Harahan men to go on working at Harahan. Hardin received the same reply from both Brown and Sheppard at or during this same period. Hence there was no interruption of work at Harahan throughout the whole period in question obviously with the consent and approval . of the responsible union officials. 2 All dates herein are in the year 1955 unless otherwise specified. 3Although not specified in the letter of notification, the first 4 named were employees at Galvez Street while the last 2 worked at Harahan. This distinction had been noticed by Frank P. Mooney, Company' s vice president and general manager. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As noted heretofore, the Galvez Street operation reopened on November 29, at 8 a. m., when the employees reported back to work. During the shutdown considerable work had accumulated at Galvez Street so that on November 29, the company foreman ordered the Harahan foreman to send a number of the Harahan employees to Galvez-Street for work on November 30. As ordered, about 10 Harahan employees reported at Galvez Street for employ- ment on November 30. In the shapeup the Galvez Street employees first went up the steps past the timekeeper's window in their order of seniority and were hired. They were followed up the steps by the Harahan employees in their order of seniority. As the Harahan employees got to the timekeeper's window to be hired, the union committee consisting of Brown,- Sheppard, Thomas, and Vidros who were standing opposite the timekeeper's window with Foreman Blanchard informed .the timekeeper and Blanchard that the Galvez Street employees would not work with the Harahan employees.4 Upon hearing the committee state that the Galvez Street men would not work with the Harahan men, the timekeeper, without any objections from Blanchard, merely closed his record book and ceased hiring more employees although the oral testimony was that he was under instructions to hire as many men as appeared .5 The Harahan men were not employed. Herbert Thomas, who had established seniority at Galvez Street although he had been working at Harahan just previously, approached the union committee after having been refused employment and informed the committee that he had not been working at Harahan during this labor dispute at Galvez Street. The committee unanimously decided after consultation that Herbert Thomas was eligible for em- ployment at Galvez Street and so informed Foreman Blanchard. At the same time the committee also notified Blanchard that L. Thomas, who also had established seniority at Galvez Street, was eligible for employment. Beginning December 1, Herbert Thomas worked steadily at Galvez Street. L. Thomas was not employed as he failed to shape up for work. Robert L. Howard, another Harahan employee, was present during the discus- sion between Herbert Thomas and the union committee. After the committee cleared Thomas for employment at Galvez Street, Howard testified that he also in- formed the committee that he had not been working at Harahan during the strike and asked for clearance so he could work at Galvez Street. The committee ex- pressed its doubts as to whether they could clear Howard for employment but told him to report the next morning when it was decided that he was not to be cleared. Unlike Thomas, Howard had no established seniority at Galvez Streets After the committed-.had informed Blanchard that Herbert Thomas was. cleared for employment at Galvez Street, Thomas again saw Blanchard and asked for employ- ment but was told that he, Blanchard, had all the "men he needed for that day." Thomas began work at Galvez Street the following day and worked steadily there- after, however. In a telephone conversation with Mooney in regard to the trouble at Galvez Street on December 1 or 2, Nelson contended that the Company should have notified the men on the Galvez Street seniority list, even though they had not worked at Galvez Street the past 6 months, before the Company hired men who were not on the seniority list. Another meeting between the parties was held on December 4 or 5, in which seniority at Galvez Street was the subject under discussion. Finally, on or about December 13, Mooney and Nelson agreed that those men on the Galvez Street seniority list would be notified of the increased work at Galvez Street by both the Company and the Union. On December 13, letters notifying men on that 4 Mitchell Pierce testified that he heard the committee state that the Galyez Street employees would not work with a Harahan man because the Harahan men had not sup- ported them during their strike. One other witness, Henry Bryant, testified that at the time the timekeeper ceased hiring, "one of the fellows ahead of me say they wouldn't let us work because we wouldn't walk out with them on this strike." Other than these two witnesses all the witnesses at the hearing were positive in their testimony that the committee merely threatened that the Galvez Street employees would not work with the Harahan employees without giving any reason therefor or else these witnesses heard nothing. The Trial Examiner believes that Pierce and Bryant were mistaken in their testimony. 5The record fails to disclose how many- men Respondent Company, employed on N oven-1- her 30, or the number of jobs the Respondent Company had posted on its bulletin board the previous night. -6 Although Howard testified as a witness for the General, Counsel;' the Trial Examiner is unable to find his name on the Respondent Company's payroll record. WAREHOUSE & DISTRIBUTION WORKERS' UNION LOCAL 207 357 seniority list of work opportunities at Galvez Street were mailed over the signature of Superintendent Stumpf. The next time a Harahan man attempted to secure employment at Galvez Street was on or about December 7, when Mitchell Pierce 7 (who had been unsuccessful in securing employment on November 30) appeared again for work at Galvez Street and was employed despite the fact that the committee again stated that the Galvez Street men would not work with him. Respondent Company put Pierce to work sweeping the dock. About 10 a. m., the committee told Foreman Blanchard that the Galvez Street employees would not work with Pierce and then informed Pierce that he would have to be knocked off, "until we get this thing settled." Blanchard told Pierce that he was being laid off at the demand of the committee and not of the Company. Pierce was thereupon laid off and worked no more that day. On December 14 a gang of Harahan employees again applied for work at Galvez Street. This time they were employed and put to work as a separate gang with two Galvez Street employees operating the lift machines for them. Shortly after the work began, the union committee refused to permit Galvez Street employees, South- ern Newton, and Morgan Peets, to operate the lift machines for the Harahan gang. When these two named employees ceased driving for the Harahan gang, Foreman Blanchard replaced them with Harahan employee, James Mackie, who had not qualified as a lift driver in accordance with the labor agreement covering the Galvez Street operations. , Although the union committee protested the use of Mackie as an operator of the lift truck, Blanchard retained him in that position and the gang from Harahan worked throughout the day and have worked thereafter without in- cident. Since that incident Harahan employees have been hired at Galvez Street and have worked without incident or interruption. B. Conclusions 1. 8 (a) (3 ) and 8 (b) (2) Section 8 (a) (3) makes it an unfair labor practice for any employer: 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. .. . Section 8 (b) (2) of the Act provides that it shall be an unfair labor practice for a labor organization or its agents: "(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3). . At page 103 of the Twentieth Annual Report of the National Labor Relations Board, the law is set forth as follows: The Board had occasion during the past year to point out that, in order to violate Section 8 (b) (2), discrimination in employment caused by a union must en- courage or discourage union membership within the meaning of Section 8 (a) (3). It is now well established that an employer may discriminate among his em- ployees so long as the reason or purpose for that discrimination is not "to encourage or discourage membership in any labor organization." The Radio Officers' case, 347 U. S. 17, makes it clear that such encouragement or discouragement may be inferred when such is the "natural and forseeable" con- sequence of the discrimination involved. ,But, under the facts of the instant case, what were, or are , the "natural and forsee- able consequences" of the Company's silent acquiescence in the Union 's threat not to work with the union men from Harahan so far as union membership is con- cerned? Did it encourage such membership ? Discourage such membership? Both? Or neither? The discrimination was practiced by local union men upon fellow union men of the same local union . Union membership, as such, was not in question, as both factions were, in fact, members of the same union local. In fact, regarding encouragement or discouragement of union membership there seems to be no "natural or forseeable consequences " of the discrimination practiced here. At least, none so natural and forseeable as to permit the drawing of an inference one way or another. Pierce, apparently, had been hired originally at Galvez Street but had transferred his seniority to Harahan, thereafter. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore, there is in this record, not one scintilla of evidence that the Re- spondent Company here was motivated for or against union membership in its acquiescence to the threat of the Galvez Street union members. The record is devoid of any evidence that the Company engaged in interference, restraint, or coercion in any way, shape, or form. In fact, the evidence makes it very clear that the only motivation the Company had was to work as big a crew as possible on November 30, and thereafter, in an effort to move the extra cargo which had accumulated during the Galvez Street labor dispute of November 17-28. So far as discernible, when faced with the alternative of working fifty-odd union members from Galvez Street who were experienced longshoremen or else of working 10 union members from Harahan who were inexperienced longshoremen, the Com- pany naturally and forseeably decided to work the larger and the more experienced group of union members instead of the smaller number of inexperienced members of the same union. Thus, the Respondent Company's decision seems to have been dictated purely by economic realism-not by any union animus. It appears that the Respondent Company, at least, acquiesced in the discrimination without the slightest intent or desire to either encourage or discourage union membership as its sole apparent consideration was to move the accumulated freight as best' it could under the existing circumstances. Thus, unless there is something else in this picture, it appears that the charge against the Company of violating Section 8 (a) (3) of the Act must be dismissed because of the lack of purpose or intent to encourage or discourage union mem- bership. Apparently the General Counsel himself concurred in the above conclusion, for in his pleading he alleged that the Respondent Union demanded that the Respondent Employer refrain from hiring or working the employees involved here "because of its knowledge and belief that the employees [involved here] refused. to engage in a work stoppage or a strike against Respondent Employer while employed at Respondent Employer's Harahan warehouse operations in November 1955, in support of a strike by Respondent Union against Respondent Employer." However, the General Counsel's evidence at the hearing did not prove the above- quoted allegation. The facts show that on or about November 17 there was some talk or suggestion by union officers that the Harahan union members assist the Galvez Street union members in the Galvez Street dispute with Respondent Com- pany by stopping work at Harahan. But, that same proof further showed without contradiction that on the Saturday following November 17, these same union officials unanimously concurred in the decision that the Harahan union members should continue to work at Harahan despite the dispute at Galvez Street. The testimony of the Charging Party himself confirmed this. At the hearing the Charging Party, Mitchell Pierce, testified that, as the Harahan men started to register for work with the timekeeper at Galvez Street on November 30, the union committee standing nearby stated that the Galvez employees would not work with the Harahan men because, "you all refused to walk out when we had the walkout down here." No one else so testified except for witness Bryant, who testified that at the time the timekeeper ceased hiring that morning, "one of the fellows ahead of me say that they wouldn't let us work because we wouldn't walk -out with them on this strike." To the contrary, the company witnesses and the union witnesses alike were unanimous that all the union committee said on that morning was that the Galvez Street employees would not work with the Harahan men-without giving any reason therefor. The testimony of the Com- pany in this regard is confirmed by a memorandum. written on December 5, by Superintendent Stumpf, wherein he stated: I was able to determine through the grapevine their reason for this action is due to the fact that the Harahan men refused to stop work during the time the Galvez Street men were on strike. Thus, contrary to the testimony of Pierce, it appears to be quite certain in the Trial Examiner's mind, that the Union gave no reason for their action at the time they refused to work with the Harahan men on November 30. This raises the question as to why, in fact, the Galvez Street men did refuse to work with those from Harahan-because the Harahan employees refused to walk out on November 17, or for some other reason. The testimony produced by • the General Counsel shows that the Harahan men continued to work at Harahan with the unanimous approval of all the union officers during the labor dispute at Galvez Street. This would seem to eliminate the very basis for the General Counsel's contention that the Union' s action of November 30, was in retaliation against such continued working, unless one can believe that A WAREHOUSE & DISTRIBUTION WORKERS' UNION LOCAL 207 359 the union officials would publicly state that they concurred in the men's decision to continue work at Harahan while secretly planning to retaliate later against them. While, no doubt, that is perfectly possible, still, such double dealing would hardly appear probable, even in the absence of some other explanation for the action of November 30. However, the Union advanced another explanation. As late as October 25, the Union and the Company had been in negotiations regarding the formulation of a single seniority list applicable to both the Galvez Street and the Harahan opera- tions to replace the existing individual seniority lists for each operation. The Company appeared to, be in favor of the individual seniority lists. Although, as discussed above, on November 30, the union committee gave no reason why the Galvez Street employees would not work with their fellow unionists from Harahan, in the very first telephone conversation between Vice President Mooney of Re- spondent Company and President Nelson of Respondent Union over the existing situation at Galvez Street a day or two after the November 30 incident, Nelson brought up the question of hiring according to seniority at Galvez Street on No- vember 30. Nelson maintained at that time that the attempt to hire the Harahan employees was a breach of the Galvez Street labor agreement in regard to seniority. The contract in existence at Galvez Street at this time provided in Section 3 thereof that: "Employment shall be by seniority ." and subsection (e) thereof reads as follows: "When, for any reason, the working force shall be increased, the em- ployees shall return to work in the order of their seniority." Section 3 also pro- vided that seniority should be applied in promotions and to the filling of new positions. On December 4 or 5, the union committee had a short discussion regarding the seniority rights under the contract with the foreman or the superintendent at Galvez Street. Finally, in accordance with an agreement made between Mooney and Nelson, letters over the signature of Superintendent Stumpf were sent out under date of December 13 to the men still listed on the Galvez Street seniority list notifying them of the existence of work opportunities at the Galvez Street operation. On December 14, and thereafter, the Union made no objection to the Harahan employees working at Galvez Street. Thus, the timing of the whole episode makes it appear that the trouble at Galvez Street from November 30 to December 14 was premised on a dispute as to the interpretation of the existing seniority rules of the contract in effect and not on any attempt to encourage or discourage union membership. Furthermore, the General Counsel brought out two episodes for the apparent pur- pose of proving that the Galvez Street employees refused to work with the Harahan employees because of the fact that they did not walk out at Harahan in support of the Union in their labor dispute with the Company on November 17. On November 30, after having been refused employment with the rest of the Harahan employees, one Herbert Thomas went to the union committee, informed them that he had not worked at Harahan during the November 17-28 dispute at Galvez Street and asked for clearance from the Union so that he could work at Galvez Street. Thomas had established seniority at Galvez Street as well as at Harahan. The committee promptly cleared Thomas and so notified the Company. Thereafter, Thomas worked at Galvez Street without objection by the Union. At the same time employee Howard, who had heard the conversation between Thomas and the union committee, also informed the committee that he, Howard, had not been working at Harahan during the earlier dis- pute at Galvez Street. However, Howard had no previously established seniority at Galvez Street. He was refused clearance by the'same union committee. The differ- ence in these rulings in the Thomas and Howard cases by the union committee con- firms the contention that the dispute of November 30, revolved around seniority, rather than upon any attempt to encourage or discourage union membership. The other episode pointed to by the General Counsel was that of December 7, when the union committee at Galvez Street forced the Respondent Company to lay off Mitchell Pierce. However, this episode does not help the General Counsel's contention for the union committee contended that Pierce had previously and voluntarily renounced his seniority rights at Galvez Street in favor of seniority rights at Harahan. Consequently, the Trial Examiner is convinced and, therefore, finds: (1) That the basis for the dispute at Galvez Street on November 30, was over the interpretation of the seniority provision of the existing contract and the right of holders of seniority at Galvez Street to notice of the existence of work opportunities at Galvez Street prior to the hiring of newcomers. (2) The object of the Union' s action as well as the action of the Company on No- vember 30, was not to encourage or to discourage membership in the Union. L 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, the essential element of encouragement or discouragement of union mem- bership is lacking in both the charge against the Respondent Company and against the Respondent Union. In the absence of proof of that essential element, the Trial Examiner must dismiss the complaint so far as it alleges violation of Section 8 (a) (3) and 8 (b) (2) of the Act .8 As previously noted, there is not one iota of evidence in this record tending to prove that the Company interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act. Therefore, the Trial Examiner must dismiss the allegation that the Company violated Section 8 (a) (1) of the Act. So far as the proof that the Union violated Section 8 (b) (1) (A) of the Act, there is the testimony of Mitchell Pierce, noted above, and denied by the union witnesses, that the committee stated that they were retaliating against the Harahan employees because the Harahan union members failed to go on strike in support of the Union's labor dispute with Respondent Employer at Galvez Street on November 17. The Trial Examiner has found above from the unanimous testimony of both company wit- nesses produced by the General Counsel and the union witnesses cross-examined by the General Counsel that this statement was not, in fact, made by the union com- mittee. Furthermore, the facts, as above found, prove that the discrimination was caused not by a desire by the Union to retaliate against the Harahan employees, but in an attempt to clarify the seniority provisions of the existing labor agreement at Galvez Street and, further, that as soon as the interpretation was settled, there was no further discrimination against the Harahan employees. In this state of the record, even assuming that the remark had been made in the hearing of Pierce by the union committee, the Trial Examiner would have to find the statement to be no more than an isolated incident insufficient to require the entry of an order against this Respond- ent of having violated Section 8 (b) (1) (A). Therefore, the Trial Examiner will recommend that this complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Warehouse & Distribution Workers' Union, Local 207 of the International Longshoremen's and Warehousemen's Union, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Waterway Terminals Corporation is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. Neither Warehouse & Distribution Workers' Union, Local 207 of the Inter- national Longshoremen's and Warehousemen's Union, nor Waterway Terminals Corporation has engaged in any unfair labor practice within the meaning of the Act. [Recommendations omitted from publication.] 8 Local Union No. 6281 U. M. TV., 100 NLRB 392. Red Ball Motor Freight, Inc. and Lodge 1255, International As- sociation of Machinists, AFL-CIO, Petitioner. Case No. 16-RC- 2057. June 26, 1957 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before J. Howard Stark, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer's request for oral argument is denied inasmuch as the record and briefs adequately present the issues. 118 NLRB No. 40. A