Galveston Maritime Association, Inc.

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Galveston Maritime Association, Inc. ; Houston Maritime Asso- ciation, Inc.; Master Stevedores Association of Texas and H. H. Field Galveston Maritime Association, Inc.; Houston Maritime Asso- ciation, Inc.; Master Stevedores Association of Texas; and the Individual Member Companies Listed in "Appendix A" and Attached Hereto and G. R. Vinson Local 1351, Steamship Clerks and Checkers, International Long- shoremen's Association, Independent, C. B. Morrow, Business Agent; International Longshoremen's Association, Local 1665, Independent, T. M. Bennett, President ; South Atlantic and Gulf Coast District, International Longshoremen's Associa- tion, Independent, Ralph Massey, President and H. H. Field Local 1351, Steamship Clerks and Checkers International Long- shoremen's Association, Independent, C. B. Morrow, Business Agent ; Avenue N Corporation ; South Atlantic and Gulf Coast District, International Longshoremen's Association , Independ- ent; International Longshoremen's Association, Independent and G. R. Vinson. Cases Nos. 39-CA-482,39-CA-524,39-CB-90, and 39-CB-124. December 29, 1958 DECISION AND ORDER On June 6, 1957, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents Houston Maritime Association, Inc., Master Steve- dores Association of Texas; the individual Member Companies of these Associations, and the Respondents Local 1351, Steamship Clerks and Checkers, International Longshoremen's Association, Independ- ent, and its business agent, C. B. Morrow, had engaged in and were engaging in certain unfair labor practices,. and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the above-named : Respondents had not engaged 'in certain other unfair labor practices as alleged in the complaint, and that other named Respondents had not en- gaged in any unfair labor practices, and recommended that the allegations of the complaint to such extent be dismissed. Thereafter, the General Counsel, the Respondents Local 1351 and C. B. Morrow, and the Respondent Associations and 'individual`Member-Companies thereof, filed exceptions to- the Intermediate- Report- and supporting briefs.' 1 As the exceptions and briefs adequately present the issues and positions of the parties herein, the Respondent Local 1351's request for oral argument is hereby denied. 122 NLRB No. 83. GALVESTON MARITIME ASSOCIATION, INC. 693 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 Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner to the extent that they are con- sistent with our decision, and with the modifications and additions hereinafter indicated. 1. We agree with the Trial Examiner that the Respondents Houston Maritime Association, Master Stevedores Association, and their Member-Companies violated Section 8(a) (1), (2), and (3) of the Act, and that the Respondent Local 1351 violated Section 8(b) (1) (A) and (2) of the Act, by maintaining an exclusive hiring arrangement whereby members of Local 1351 and sister locals are given preference in employment over nonmembers and whereby other discriminatory conditions of employment are imposed 2 It is undisputed that the Respondent Companies utilized Local 1351's hiring hall as the sole and exclusive source for securing their clerks, checkers, and other personnel in the port of Houston. It is also clear that no employee in these classifications could be hired except through Local 1351's hall.3 In administering this hiring hall, Local 1351 maintains a list of applicants available for employ- ment. This list designates those who are members of the Union and those Who are not. Whenever the Companies require any -men, their chief clerks, who concededly are supervisory employees with authority to hire and discharge, telephone the Local's business agent. The business agent, in response, reads to the chief clerks the list of available employees from which the latter select their employees.4 Although it appears that the business agent normally does not specify which applicants are union or nonunion members, it is ap- parent that this is unnecessary as practically all, if not all, chief clerks are union members acquainted with the membership. Indeed, 2 We find that, in accordance with Board policy, the Regional Director properly vacated the settlement agreement involved herein. However, like the Trial Examiner, we find it unnecessary to invalidate the illegal provision of the earlier contract between the parties because the alleged illegal provision has already been deleted from the contract and because the remedial order hereafter directed proscribes giving effect to any existing contract or arrangement between the parties. 3 Local 1351's general working rules prohibit members from soliciting employment, or leaving their jobs to accept work at another dock. 4 Before Local 1351 abandoned its practice of requiring employers to pay clerk's wages to checkers called by name, some employers when ordering checkers allowed the business agent to make the selection. All chief clerks who testified conceded that the practice of employee selection had not changed after the unfair labor practice charges filed herein were settled by agreement. The only change made by the Respondent Local was from a system of posting names of available nonunion employees on a blackboard, in plain view of all persons waiting for job assignments, to the system of listing their names on scratch pads kept by the business agent in his private office and not available for inspection. At all times, the names of union members were also kept by the business agent in his private office, and not available for inspection. 694 DECISIONS. OF NATIONAL LABOR REL'ATIONS 'BOARD every • chief clerk who testified admitted this. The evidence also shows that many of the" chief clerks serve 'as officials of the Local and on its committees, including the contract negotiating and griev- ance committees which bargain with the Respondent Associations. Furthermore, as later discussed, chief clerks, like the rank-and-file employees, are required, as a condition of employment, to designate Local 1351 as their bargaining representative and to pay a percentage of their wages. Under the International's Constitution, Local 1351 is obligated to give preference in employment to members of a sister local when 'there are more jobs than its members can handle.5 Obviously, this- provision contemplates that the Local would give first preference to 'its: own members 'over' other applicants. Indeed, such policy is revealed in the parties' earlier contracts. In addition, the Local's business agent is required by its constitution to see that the Local's rules are observed.' In these circumstances, , there. can be little doubt that the chief- clerks as members subject to the Local's dis- cipline and as union officials would not,disregard the Local's con- stitutionally imposed policy ' of preferential hiring. That this preferential hiring policy was effectuated is established by the record. According to the credited testimony of employee Vinson, on a number of occasions in 1955 and up to July 1956, when the witness' stopped reporting to the hiring hall for work, Business Agent Morrow passed over nonunion men waiting for jobs in favor of men from-Local 1351's sister locals. Moreover, there is other evidence in the record that on the average members of Local 1351 earned more money than nonmembers, were employed for longer periods of time, and usually were 'given the higher-paying clerk's jobs whereas the nonunion men were usually given the lower-paying checker's jobs.7 However, no evidence was adduced to show that the 'union members were demonstrably better qualified for the work than 6 The constitution and rules of order of the International Longshoremen 's Association, Independent, as amended in July 1955 , states in article XI, section 5: "Where two or more Locals exist in the same Port and.one.Local has more work than its membership can take , care of, said Local' shall give preference to members of the other Locals in the performance of such extra work." .'Article II of Local 1351's constitution reads as follows : "Business Agent" He shall see that the, rules . of the Union are. lived up to by the members, and re- port all violations in payment of dues, fines and percentage to the Executive Board. ^'+flhe:'.testmony rof Business Agent Morrow and some, of the chief., clerks reveals that practically all of the regular salaried monthly jobs and a majority, of the regular weekly jobs are held by union members . Moreover, Local 1351's records show that normally there are-c'nsiderably: more nonmembers' than members in daily attendance at the hiring ball seeking extra . board . work. .. Even as between the union members and nonmembers 'listed :for extra board work, the Local' s. records , show that the -average earnings of the union : members for the 6-month' period in 1955; during which, equal percentages were :collected 'from ' all employees and were .subsequently refunded, must have been approxi- inately, twice that of; nonmembers , judging by the amount of the :refunds. { GALVESTON MARITIME ASSOCIATION, INC. - 695 the nonunion members. Finally, as hereinafter found, Local 1351 actually' discriminatorily denied referral, -to Vinson and, Linnenberg. The foregoing evidence persuades us that the preferential hiring system originally provided for in the Respondents' earlier contracts has actually continued in operation after the Respondents ostensibly deleted these provisions from their contracts.. Such an exclusive preferential hiring system is plainly prohibited by the` Act.8 Apart from the preferential hiring aspect of the Respondents' hiring arrangement, 'we find, as did the Trial Examiner, that the referral system is unlawful by reason of the conditions imposed upon applicants in' order to secure and retain employment. Thus, as discussed in the Intermediate Report, it is undisputed that, since the early `part of 1956, all applicants for employment through Local 1351's hiring hall' have been required to fill out a form designating the, Local as their bargaining representative and to agree to pay a percentage of their wages to the Local "as compensation for services rendered.," The collection, of the percentages has been facilitated by the Respondent Companies' preparation of two checks in payment of the employees' wages-one in the amount of percentage due to the Local and 'the other for the balance of wages-which the Companies deliver to the Local for distribution to the employees. The Local, in turn, hands over the wage checks to the employees after they endorse over to the Local the percentage check.10 Clearly, the Act does not sanction'the imposition of the.obligation to.desig- nate the Local as employees' bargaining representative and the pay- ment of percentages as the price of employment.!' Much less does it permit, as the Trial Examiner also found, the Local's requirement of the payment of higher percentages by nonunion 'members than union members. In the recent Mountain Pacific case '12 the Board • held 'that an employer may 'enter into an. exclusive hiring 'arrangement with a union ' provided adequate safeguards against discrimination are pre= scribed. These safeguards' include the requirement that : (1) ' The selection of applicants for referral to jobs shall be on a non- discriminatory' basis and shall not be based. on, nor in any way affected by, union membership, bylaws, rules,' regulations, constitu- tional provisions, or any other aspect or obligation of union mem- 8 The Great Atlantic and Pacific Tea Company, 117 NLRB 1542. No similar written designations were required between January 1954 and early 1956. However, it is established that all applicants for work were required orally to agree, to pay a percentage of their wages to Local 1351. lU This practice was instituted in July 1955 . Previous thereto , each employer delivered his employees ' wage checks to the local for distribution to the employees . At the time of distribution, an employee 's percentage would be computed and the amount paid ' in'cash to the local. ii Houston Maritime Association,' Inc.,' 121 NLRB 389`; United Association of Journey- men & Apprentices of Plumbing & Pipefitting Industry, etc. (J. S. Brown=E. F. 'Olds Plumbing & Heating Corporation), 115 NLRB 594. 22 Mountain Pacific Chapter of the Associated General Contractors, Inc., 119 NLRB 883. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership, policies, or requirements; (2) the employer retains the right to reject any job applicant referred by the union; and (3) the parties to the agreement shall post in places where notices to em- ployees and applicants for employment are customarily posted, all provisions relating to the functioning of the hiring arrangement, including safeguards that the Board deems essential to the legality of an exclusive hiring agreement. It is clear from the evidence that not only have the Respondents not provided for such safeguards but, as indicated above, have actually imposed discriminatory con- ditions of referral. Although conceding the existence of an exclusive hiring arrange- ment, the Respondent Associations and Companies deny knowledge or responsibility for the discriminatory manner in which the hiring hall was operated. We find no merit in this position. In the Mountain Pacific case, supra, the Board reiterated settled law that an employer, party to an exclusive hiring-hall arrangement with a union, is responsible for the manner in which the hiring hall is operated, solely by reason of being party to such an arrange- ment.13 In any event, the Respondent Companies' awareness of the discriminatory operation of the hiring hall is established by the knowledge of their agents, the chief clerks, as well as by the Companies' acts in facilitating the Local's collection of percentages. Accordingly, we find that the Respondent Associations and Com- panies are liable for the unlawful operation of Local 1351's hiring hall and the resultant discrimination against Vinson and Linnenberg discussed in the Intermediate Report. The Trial Examiner exonerated the Respondent International from any liability for the operation of the hiring hall because its connection with it, if any, was only a "passive one." We do not agree with this finding. As indicated previously, the International's constitution required its constituent Locals to give preference in employment to members of sister locals where there are more jobs than its members can handle. This plainly presupposes first preference in employment to the Local's own members. As we have found that Local 1351 has maintained and administered a preferential hiring-hall system, contemplated by the International's constitution, we find that the International, in effect, is a cosponsor of the hiring hall and is liable with Local 1351 for the unfair labor practices thus com- mitted.14 33 See also N.L.R.B. v. Waterfront Employers of Washington, 211 F. 2d 946, 954 (C.A. 9). ''Millwrights' Local 2282, United Brotherhood of Carpenters and Joiners of Americe, AFL-CIO; at al. (Farnsworth c8 Chambers, Inc.), 122 NLRB 300; Alexander-Stafford Corporation, 118 NLRB 79, 81. ' GALVESTON MARITIME ASSOCIATION, INC. ,697 Accordingly, we find that the Respondent Associations and Com- panies Violated Section 8 ('a) (3) of the Act by, being party to an exclusive hiring-hall arrangement which gives preference in em- ployment to members of Local 1351 and sister locals and which requires job applicants to designate Local 1351 as their bargaining representative and to pay percentages of their wages. We further find that by this conduct and by facilitating the payment of these percentages, the Respondent Associations and Companies gave Local 1351 assistance and support prohibited by Section 8 (a) (2) and thereby interfered with,, restrained, and coerced employees in viola- tion of Section 8(a) (1). We further find that the Respondents Local 1351 and the Inter- national, by maintaining and operating the hiring hall as indicated above, caused and attempted to cause the Respondent Companies to discriminate against employees in violation of Section 8(a) (3), and thereby violated Section 8 (b) (2) and (1) (A) of, the Act.15 2. We find, as did the Trial Examiner, that employees G. R. Vinson and Frank A. Linnenberg were discriminatorily deprived of em- ployment because they were not members of the Respondent Local 1351 and because they had filed unfair labor practices charges against the Respondents. We further find that the Respondents Local 1351 and its business agent, Morrow, caused such discrimination against Linnenberg in violation of Section 8(b) (2) and (1) (A) of the Act, and together with the International caused such discrimination against Vinson. We also find that the Respondent Associations violated Section 8(a) (1), (3), and (4) with respect to Linnenberg and together with their Member-Companies with respect to Vinson, by reason of being parties to the unlawful hiring arrangement which made the discrimination possible. In finding that the International and the Member-Companies did not violate the Act with respect to Linnenberg, we do so because such findings are barred by Sec- tion 10(b). The evidence reveals that Linnenberg last appeared at the hiring hall on October 17, 1955. The Member-Companies were first named as parties respondent in the second amended charge in Case No. 39-CA-524 which was filed on July 30, 1956, and served .on August 1, 1956. The International was first named as a party respondent in the third amended charge in Case No. 39-CB-124, filed and served on November 1, 1956. In these circumstances, Section .10(b) precludes a finding that the Member-Companies and the International are liable for the. discrimination against Linnenberg.16 10 The Great Atlantic and Pacific Tea Company, supra. 10 George D. Auchter Company, 102 NLRB 881, 885, enfd. 209 F . 2d 273 (C.A. 5). However, Section 10(b) does not preclude our other unfair labor practice findings herein against the Respondents International and Member -Companies based upon the fact that the unlawful hiring practices were maintained and continued in effect within the 6-month statutory periods. Id. at page 883. '698 DECI$IO;NS-, OF.:NATIONAL : LABOR RELATIONS-'..BOARD ;We'.also agree with the-Trial Examiner that the evidence is in- sufficient to establish that the Respondents discriminated against . employee H.. H. Field. THE REMEDY Having found that. certain of the Respondents have. engaged in unlawful practices, we shall order that they cease and desist there- from and take certain affirmative action. necessary to effectuate the policies of the Act: We have found that the Respondent Associations, their Member- VCompanies, and the Respondent Unions are parties to an illegal hiring arrangement whereby preference in employment is given to members of the Respondent Local 1351 and sister locals, and whereby employment is conditioned on the employees' designation of Local 1351 as their bargaining. representatives and their payment. of "a percentage of their wages to Local 1351. We have further ; found that,. by 'this conduct, the. Respondent Associations and their Mem be'r-Companies have given unlawful support and assistance to Local 1351. In these circumstances, we find that it. will effectuate the policies of the Act to direct the Respondents to refrain from main- taining or giving effect to their unlawful,. hiring arrangements," In . addition, we find that the policies of the Act can best be served by not permitting Local 1351 to continue t o e njoy a representative status. which. it has achieved, strengthened, and perpetuated by such unlawful conduct.' Accordingly, 'we shall "order the Respondent Associations and their Member-Companies to withdraw= recognition from .Local 1351 and to refrain from recognizing and dealing with it, and giving effect to any contract or agreement with Local 1351, or to any modification, extension, supplement or renewal thereof, unless and until Local 1351 has demonstrated its, exclusive maj ority status pursuant to a Board-conducted election among the Respondent Companies' employees. However, the said Respondents. are not required to vary the wages, hours, or other lawful terms or, condi- tions of employment heretofore established. As indicated above, under the hiring-hall arrangements involved -herein, employees are, among other things, unlawfully required to pay Local 1351 a percentage ` of their earnings as the price of securing and, retaining employment. Moreover, because of , the operation of the unlawful hiring hall, employees were coerced to .become and remain union. members which required payment of initiation fees, dues, and" other union obligations. Therefore, to expunge the effects of these unlawful exactions, we-shall order the Respondent Associations, their Member-Companies, and the Respond. ent Unions jointly and severally to refund to, present and :former ' In so doing , we do not adopt the Trial Examiner's recommended order 'insofar as it indicates that the Respondent Unions may charge a fee as 'a condition of referral. GALVESTON' MARITIME ASSOCIATION, INC. ' 699 employees- the, percentages, initiation fees; dues,. and other moneys the employees have thus been required to pay.18 Otherwise, the Re- spondent Unions, would be permitted. to enjoy the fruits of - their unfair labor,. practices and the Respondent Associations and Member- Companies, who not only made such exactions possible but actually facilitated collection of the percentages, would be exonerated from liability at the expense of the victims of the unlawful hiring ar- rangement. A Member-Company's liability, however, shall be limited only to moneys paid by its employees to Local 1351 so that one Member-Company shall not be liable for refund of moneys paid by the employees of another Company. Furthermore, the period of liability for all the Respondents respectively shall begin 6 months 'before the date of the filing and service of the 'initial charge against each Respondent and shall extend to all moneys thereafter paid which had not heretofore been refunded 19 In agreement with the Trial Examiner, we shall order that em- ployees Vinson and Linnenberg be made whole or any loss of pay suffered by reason of the discrimination against them in the manner and to the extent set forth in the Intermediate Report, except as herein modified. Having found that the International is equally responsible for the discrimination practiced against Vinson, we shall make it jointly and severally liable for 'the loss suffered by him.. In view of the fact that a finding that the' Member-Companies discriminated against Linnenberg is barred by Section 10(b),' we shall exonerate them from any liability for back pay to Linnenberg. In accordance with Board policy, we shall- abate the Interna.- tional's liability for back pay and the refund of percentages, dues, initiation fees, and other moneys for'the period from the date of the Intermediate Report, to the date of this Decision and Order, as the Trial Examiner had dismissed the complaint against the In- ternationa120 Because, by, their conduct found to be violative of the Act, the Respondents have infringed upon the fundamental rights of em- 1.19 United Association of Journeymen & Apprentices . of the Plumbing &.Pipeftting Indus- try (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594; N.L.R.B. v. Broderick Wood'Products Co., 261 F. 2d 548 (C.A. 10), eufg. 118 NLRB 38; Local Union No. - 450, International - Union- of Operating Engineers, AFL-CIO ( Tellepsen Construction Company), 122 NLRB 564. We note that in .the Houston Maritime Association case, supra, the Board did not direct the refund of any moneys' paid as the price for employ- ment other than percentages collected, although illegal practices similar -to those In the .instant case were involved. However, at the time the Houston case was decided, the Board was still in the process of reexamining the Brown- Olds 'principle;'which it did -not reaffirm until after the Houston decision issued. ' In view. of the fact that the Respondents have forfeited the benefits of the settlement agreement discussed in the Intermediate Report by reason of their subsequent unfair labor practices,. we find; contrary, to the Trial Examiner, that the refund, herein ordered should not be limited to the $100 payable to those employees who have not yet received such sum, but the refund should extend to the full amount of the percentages unlawfully exacted from all the employees using the hiring hall , as provided above, YO Los Angeles-Seat tie Motor Express, ' Incorporated, 121 NLRB 1629.' '700 DECISIONS OF NATIONAL LABOR: RELATIONS` BOARD 'ployees guaranteed by the Act, the commission of .other ' unfair labor -practices may thereby reasonably be anticipated. It will, therefore, be ordered that the Respondents cease and desist from in any other -manner infringing upon the rights guaranteed employees by Sec- tion 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: A. The Respondents, Houston Maritime Association, Inc., Houston, Tex., Master Stevedores Association of Texas, Houston, Tex., and the individual Respondent Companies, listed on Appendix A, who are members of these Associations, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Performing, maintaining, or giving effect to any hiring system, .practice, or arrangement with Local 1351, Steamship Clerks and Checkers, International Longshoremen's Association, Independent, and International Longshoremen's Association, Independent, which grants preference in employment to members of said Unions, or any other labor organization, or which requires employees and ap- plicants for employment, as a condition of employment, to designate Local 1351, or any other labor organization, as their bargaining agent, or to agree to pay, or pay, to said Local 1351, or any other labor organization, a percentage of their earnings derived from such employment. (b) Performing, maintaining, or giving effect to the provisions of any agreement, understanding,, or arrangement with said Local 1351, or any other labor organization of its employees, which un- lawfully condition the employment of job applicants, or the reten- tion of employees in employment, with the said Respondent Com- panies upon clearance or approval by. said Local 1351, except as authorized in Section 8(a) (3) of the Act. (c) Encouraging membership in, or activities on behalf of, the above-named Unions, or any other labor organization, by giving preference in employment to members of such organizations, or in any other manner discriminating against employees or applicants for employment in regard to their hire or tenure of employment, or other terms or conditions of employment, except as authorized in Section 8(a) (3) of the Act. (d). Discriminating against G. R. Vinson and Frank A. Linnenberg because they are not members of said Local 1351, or because said individuals filed charges 21 m As Member-Companies were not found, to have . discriminated against Linnenberg, sections A 1(d) and A 2(b) of this Order relating to Linnenberg shall not apply to them. GALV•ESTON MARITIME ASSOCIATION, INC. ` 701 (e)., Assisting or contributing support to said Local 1351 or any other labor organization of their employees.. (f) Recognizing Local 1351, or -any successor thereto, as the repre- sentative of any of their employees for the purpose of dealing with said Local 1351 concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-con- ducted election among the employees of the said Respondent Com- panies. (g) Performing, maintaining, or giving effect to any contract or agreement, modification, extension, supplement, or renewal thereof, with said Local 1351, or any successor thereto, unless and until said labor organization shall have demonstrated its exclusive majority representative status pursuant to a board-conducted election among the employees of said Respondent Companies; provided, however, that nothing herein shall be construed to require the said Respondent, Companies to vary any substantive provisions of such contract or agreement, or to prejudice the assertion by the employees of any rights which they may have thereunder. (h) In any other manner interfering with, restraining, or co- ercing employees or applicants for employment in the exercise of the rights guaranteed in Section.7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as au- thorized 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) Withdraw and withhold all recognition from said Local 1351 as the representative of any of the employees of the Respondent Companies for the purpose of dealing with said Local 1351, or any successor thereto, concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said Local 1351, or successor thereto, shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among the Respondent Companies' employees. (b) Notify G. R. Vinson, Frank A. Linnenberg, the Respondent Local 1351, and the Respondent International Longshoremen's Asso- ciation, Independent, in writing, that they have no objection to the employment of the said Vinson and Linnenberg because of their membership or nonmembership in the said union or because they have filed charges against the Respondents. (c) Preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records, social- 702 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD security payment records, .timecards; personnel records and reports, and all other records necessary to analyze the amounts of back pay and other moneys due and the rights of : employment under the terms' of this Order. (d) Post at their respective offices in Houston , Tex., and other places ' of business in the port of Houston and vicinity copies of the notice attached hereto marked "Appendix B."22 Copies of said notice, to be - furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by a' representative of the Respondents Houston Maritime Association, Inc., Master Stevedores Association of Texas, and of each Respondent Company , -be posted by them immediately on receipt thereof and be maintained by them for sixty (60) consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondents to insure that said notices are not altered , defaced, or covered by any other material. . (e) Post at the same places and under the same conditions as set forth in (d) above , as soon as they are forwarded by the Regional Director, copies of the Respondent Unions' notice herein marked "Appendix C." (f) Mail to the Regional Director for the Sixteenth Region signed copies - of - the notice attached hereto marked "Appendix B" for posting 'by Respondent Local 1351, Steamship Clerks and Checkers, International Longshoremen 's Association, Independent; Respondent International Longshoremen's Association, Independent, and Re- spondent C. B. Morrow, at their respective offices, hiring halls, and meeting halls in 'places where notices to members and to other persons using Local 1351's hiring hall are customarily posted. Copies of said notice; to be furnished by the Regional 'Director, shall, after being duly signed by representatives of the Respondent Associations and each Member-Company thereof, be forthwith re- turned - to the Regional Director for, such -posting. (g) Notify the Regional ' Director , for the Sixteenth Region in writing, within ten '(10 ) days from the date of this Order, as to what ' steps the Respondent Associations and the Respondent Com- panies have taken to comply herewith. B. Respondent Local 1351, Steamship Clerks and Checkers , Inter- national Longshoremen's Association, Independent,.and Respondent International Longshoremen 's Association, Independent, 'their officers, representatives, agents, including the Respondent C. B. Morrow, business agent, of said Local 1351, successors, and assigns,.shall: 22 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." !GALVESTON MARITIME ASSOCIATION, 'INC;' 703 1. Cease and desist from: '(a) Performing, maintaining, or giving effect to any hiring system, practice, or arrangement with Houston Maritime Associa- tion, Inc., or Master. Stevedores Association of Texas; or any of the Member-Companies :thereof, which unlawfully grants preference in employment to members of the Respondent Unions,' or which un- lawfully requires employees or job applicants, as a condition of employment, to designate the Respondent Local 1351 as their bar- gaining'agent and to agree to pay, or pay, to Respondent Local 1351 a percentage of their earnings derived from such employment. (b) -Performing,. maintaining, or giving effect to the provisions of ' any agreement, understanding, or arrangement with said Asso- ciations or any of the Member-Companies thereof, or with any other employer, which unlawfully condition the employment of ' job ap- plicants, or the retention of employees in employment with any employer, upon clearance or approval by the Respondent Unions, except as authorized in Section 8(a) (3) of 'the Act. (c) Causing -or attempting to cause said Associations or any Member-Company thereof, or any other employer, to deny employ- ment to Vinson and Linnenberg, or to any other applicant for employment, in violation of Section 2(a) (3) of the 'Act, or otherwise to discriminate against them because they are not members of the Respondent Unions, or because 'they have filed charges against the Respondents?a (d) Performing, maintaining, or giving effect to any contract or agreement, modification, extension, supplement, or renewal thereof, with said Associations and Member-Companies thereof, or any suc- cessor- or successors thereto, unless and until said Respondent Local 1351 shall have demonstrated its exclusive majority rep're- 'sentative status pursuant to a Board-conducted election among the employees of the Respondent Companies. (e). In any other manner restraining or coercing employees or applicants for employment with the Respondent Companies, or any other employer, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized 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 G. R: Vinson,' Frank A. Linnenberg, the Respondents Houston 'Maritime Association, Inc., Master Stevedores Association 2a As the Respondent International was not found to have discriminated against. Linnenberg, section - B1(c) and B 2(a) of this Order relating to Linnenberg shall not apply to it. 7,0, DECISIONS, OF :,NATIONAL LABOR., RELATIONS BOARD of Texas, and each Member-Company thereof, in writing, that the Respondent Unions have no objection - to the employment. by said Respondent 'Companies.',,-of said Vinson and Linnenberg, or any other employee or applicant for employment, because of their mem- bership or nonmembership in :the Respondent. Unions, or because they have. filed charges against the Respondents.:. (b) .*Preserve and make available to. the Board or its agents, upon request, for examination and copying, all records and reports neces- sary to analyze the amounts of- backpay' and other moneys due, and the rights of employment, under'the terms of this Order. (c)' Post at their respective offices; hiring halls, and meeting halls, copies of the notice attached hereto, marked "Appendix C.11'4 Copies of said notice, -to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by Respondent Unions' representatives and by Respondent Local 1351's business agent, C. B. Morrow, be posted by them immediately on receipt thereof and be maintained by them for a period of sixty (60) con- secutive days thereafter in conspicuous places, including all places where notices to members and to other persons using the Local 135l's hiring hall are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c), above, as soon as they are forwarded by Regional Director, copies of the Respondent "Associations' and Member- Companies' notice herein marked "Appendix B." (e) Mail to the Regional Director for the Sixteenth Region signed copies of the notice attached hereto marked "Appendix C" for post- ing by Respondents Houston Maritime Association, Inc., Master Stevedores Association of Texas, and each Member-Company thereof, at their places of business in the port of Houston, Tex., and vicinity, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by a representatives of the Respondent Unions and the Respondent C. B. Morrow, be forthwith returned to the Regional Director for such posting. (f) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of this Order, as to what steps they have taken to comply herewith. C. The Respondents Houston Maritime Association, Inc., Master Stevedores Association of Texas, and the Member-Companies thereof listed in "Appendix A," their officers, agents, successors, and assigns; the Respondent Local 1351, Steamship Clerks and Checkers, Inter- national Longshoremen's Association, Independent, and the Re- 21 See footnote 22. ,GALVESTON MARITIME ASSOCIATION, INC,. 705 spondent International Longshoremen's Association, Independent, their officers, representatives, agents, successors, and assigns, shall jointly and severally make whole G. R. Vinson and Frank A. Linnenberg for any loss of pay they may have suffered because of the- discrimination against. them in the manner and to the extent set forth in the Intermediate Report, as modified by the Board's De- cision and Order, herein; and shall jointly and severally reimburse all present and former employees who have unlawfully been required to pay, a percentage of their wages, initiation fees, dues, and other moneys to the Respondent Local 1351, in the manner and to the extent set forth in the section of the Board's Decision and Order entitled "The Remedy." IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that the Respondents Galveston Maritime Association, Inc.; International Longshoremen's Association, Local 1665, In- dependent, and T. M. Bennett, president; South Atlantic and Gulf Coast District, International Longshoremen's Association, Independ- ent, and Ralph Massey, president; and Avenue N Corporation committed violations of the Act; that the individual Respondent Companies and the Respondent International Longshoremen's Asso- ciation, Independent, have unlawfully discriminated against Frank A. Linnenberg; and insofar as it alleges unfair labor practices not found herein. APPENDIX A MEMBERS OF HOUSTON MARITIME ASSOCIATION INC. Biehl & Company, Houston, Cotton Exchange Building, Houston, Texas E. S. Binnings, Inc., Cotton Exchange Building, Houston, Texas Bloomfield Steamship Company, Cotton Exchange Building, Houston, Texas Fowler & McVitie, Inc., Cotton Exchange Building, Houston, Texas Garcia Line Corporation, Cotton Exchange Building, Houston, Texas Hansen, Tidemann & Dalton, Inc., Cotton Exchange Building, Houston, Texas Isthmian Steamship Company, Cotton Exchange Building, Houston, Texas Lykes Brothers Steamship Company, Incorporated, Cotton Exchange Building, Houston, Texas Peter R. Phillips, Thomas Phillips, Catherine Elizabeth Wipprecht, a partnership dba Wm. Parr & Co., Cotton Exchange Building, Houston, Texas Rice, Kerr & Company, Inc., Cotton Exchange Building, Houston, Texas 505395-59-vol. 322-46 706 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD States Marine Corporation of"Delaware, Cotton Exchange Building, Houston, Texas Strachan Shipping Company, Cotton Exchange Building, Houston, Texas Texas Marine Transport Company, Inc., 507 State National Build- ing, Houston, Texas Texas Transport & Terminal Company, Inc., Cotton Exchange Building, Houston, Texas Waterman Steamship Corporation, Cotton Exchange Building, Houston, Texas MEMBERS OF MASTER STEvmoREs ASSOCIATION OF TExAS-Houston Area Atlantic & Gulf Stevedores, Incorporated, 5513 Clinton Drive, Houston, Texas Canadian Gulf Line, Ltd., Post Office Box 5355, Houston, Texas Gulf Stevedore Corporation, P.O. Box 1443, Houston, Texas Liberty Stevedore Co., Inc., 508 Cotton Exchange'Building, Houston, Texas Southern Stevedoring Company, Post Office Box 2464, Houston, Texas Southern Stevedoring & Contracting Company, Cotton Exchange Building, Houston, Texas :Strachan Shipping Company, Cotton Exchange Building, Houston, Texas Suderman Stevedores, Inc., U.S. National Bank Building, Galveston, Texas Texas Contracting Company, Cotton Exchange Building, Houston, Texas 'Texas Star Stevedoring Company, Cotton. Exchange Building, Houston, Texas The Taxports Stevedore Co., Inc., Cotton Exchange Building, Houston, Texas -United Stevedoring Corporation, Cotton Exchange, Building, Houston, Texas Young &-, Company of Houston, Cotton Exchange Building, Houston, Texas APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the' National Labor Bela.- tions Board, and' in order to' effectuate the policies of. the National Labor Relations. Act, as amended, we hereby notify you that: WE WILL NOT perform, maintain, or give effect to any hiring system practice, or arrangement with Local 1351, Steamship Clerks and Checkers, International Longshoremen's Association, .-.,GAL .ESTON." MARITIME ASSOCIATION, ING.. 707. Independent, 'and .-, Intern ational Longshoremen's Association, Independent, which grants preference in ' employment to mem- bers of said. Unions or, any, other labor .organization, or "which requires employees and applicants for, employment,! as a; condi- 'tion of employment, to designate said Local 1351, or any other labor organization, as a. bargaining agent, or to agree .to pay, or pay, to :said Local 1351,. or .any other labor organization, a per- . .tentage of their earnings derived from such employment. 'WE WILL -NOT perform, maintain, or give effect to the provi- sions of any: agreement, understanding, or arrangement with said Local 1351, or any other, labor organization 'of our em- ployees, which unlawfully condition the employment of job applicants, or -the. retention of employees in employment, with any of the undersigned Companies, upon clearance or approval by said Local 1351, except as authorized in Section.. 8(a) (3) of the Act. WEW.ILL NoT.encourage membership in,, or activities on behalf of, the above-named Unions, or any other labor organization, by giving preference in employment to members of, such organiza- tions, or in any other manner discriminating against them in regard to their hire or tenure of employment, or other term or condition of employment, except as authorized in Section 8(a).(:3). of. the Act. WE WILL NOT discriminate against G. R. Vinson and Frank A. Linnenberg because they are not members of said Local. 1351, or.,because the said individuals filed charges.- WE WILL NOT assist or contribute support to said Local 1351 or.' any other labor organization of our employees. WE WILL NOT recognize Local 1351, Steamship Clerks and Checkers, International -,Longshoremen's Association, -- Jude pendent, or any successor thereto, as the representative of any of our employees for the purpose of dealing with said Local 1351 concerning grievance, labor disputes, wages, rates of pay; hours,^of employment, or.other conditions of employment, un- less and until ,said labor organization shall have demonstrated "Jts exclusive majority representative status pursuant to a Board-conducted election among our employees. WE WILL NOT perform; maintains or give effect to any con- tract or agreement, modification, extension, supplement,, or re- newal thereof, with, said Local 1351 or any, successor thereto, unless and until said labor organization shall have demon- strated its exclusive majority representative status pursuant to a Board-conducted election among our employees. WE WILL' NOT in .any other manner interfere with, restrain, or coerce`, our 'employees or applicants for employment in the exercise of the. rights: guaranteed in Section 7 of the Act; except 708 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD 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 notify G. R. Vinson, Frank A. Linnenberg, Inter- national Longshoremen's Association, Independent, and Local 1351, Steamship Clerks and Checkers, International °Longshore- men's Association, Independent, in writing, that we have no objection to the employment of said Vinson and Linnenberg. WE WILL make whole G. R. Vinson and Frank A. Linnen- berg for any loss of pay they may have suffered because of the discrimination against them. WE WILL reimburse all of our present and former employees who have unlawfully been required to pay a percentage of their wages to the said Local 1351. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement con- forming to the applicable provisions of Section 8 (a) (3) of the National Labor Relations Act. The provisions of this notice relating to the discrimination against Linnenberg shall not be taken to apply to the individual Employer Companies. HOUSTON MARITIME ASSOCIATION, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) MASTER STEVEDORES ASSOCIATION of TEXAS, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) ------------------------------------- Employer Company. 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. APPENDIX C NOTICE TO ALL MEMBERS OF LOCAL, 1351, STEAMSHIP CLERKS AND CHECKERS, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, INDE- PENDENT, AND TO ALL CLERKS, CHECKERS, AND TIMEKEEPERS EM- PLOYED IN THE PORT OF HOUSTON AND VICINITY 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, as amended, we hereby notify you that : GALVESTON MARITIME ASSOCIATION, INC. - 709 WE WILL NOT perform, maintain, or give effect to any hiring system, practice, or arrangement with Houston Maritime Asso- ciation, Inc., or Master Stevedores Association of Texas, or any of the Member-Companies thereof, which unlawfully grants preferences in employment to our members or which unlawfully requires employees or job applicants, as a condition of employ- ment, to designate Local 1351, Steamship Clerks and Checkers, International Longshoremen's Association, Independent, as their bargaining agent, and to agree to pay, or pay, to said Local 1351 a percentage of their earnings derived from such employ- ment. WE WILL NOT perform, maintain, or give effect to the provi- sions of any agreement, understanding, or arrangement with the said Associations or any Member-Company thereof, or with any other employer, which. unlawfully condition the- employ- ment of applicants for employment, or the retention of em- ployees in employment, with any employer upon clearance or approval by us, except as authorized in Section 8 (a) (3) of the Act. WE WILL 'NOT cause or attempt to cause said Associations or any Member-Company thereof, or any other employer, to deny employment to G. R. Vinson and Frank A. Linnenberg, or to any other applicant for employment, in violation of Section 8(a)'(3) of the Act, or otherwise discriminate against them because they have filed charges against us. WE WILL NOT perform, maintain, or give effect to any con- tract or agreement, modification, extension, supplement, or re- newal thereof with said Associations and Member-Companies thereof, or any successor or successors thereto, unless and until Local 1351, Steamship Clerks and Checkers, International Long- shoremen's Association, Independent, shall have demonstrated its exclusive majority representative status pursuant to a Board- conducted election among the employees of the said Companies. WE WILL NOT in any other manner restrain or coerce em- ployees or applicants for employment with the said Companies, or any other employer, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL notify G. R. Vinson, Frank A. Linnenberg, Houston Maritime Association, Inc., Master Stevedores Association of Texas and each Member-Company thereof, in writing, that we have no objection to the employment by said Companies of the said Vinson and Linnenberg. . 710 DECISIONS OF NATIONAL LABOR ' RELATIONS. BOARD WE WILL make whole G. R. Vinson and;Frank A. ,Lmhenberg for any loss' of pay they have suffered:because of the discrimina- tion against them. V WE WILL reimburse all present and former employees who have unlawfully been required by us to pay a percentage of their wages to Local 1351, Steamship Clerks and-Checkers, . International Longshoremen's Association, Independent. The provisions of this notice relating to the discrimination against Linnenberg shall not'be taken to apply to international Longshore- men's Association, Independent. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, INDEPENDENT, Labor Organization. Dated---------------- By-------=_---- (Representative ) (Title).. LOCAL 1351, "STEAMSHIP CLERKS AND CHECKERS, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, INDEPENDENT, Labor. Organizatim Dated--------------- B (Representative ) (Title). C. B. Afomiow,.. Dated-------- ------- By-------------------------------- ----- Bu8ine8s Agent, Local 1351. This notice must remain posted for 60 days from the date hereof,, and must` not be altered, defaced, or.covered by any other material.. INTERMEDIATE REPORT AND RECOMMENDATIONS, ISSUES . The principal issues in these proceedings are whether a "hiring hall" located in Houston, Tex., is being operated in violation of the, National Labor Relations, Act, as amended, herein called the Act; whether certain, payments, herein ;called percentages, collected from persons obtaining work through this hiring hall were unequal and therefore discriminatory; whether percentage payments were unlaw- fully imposed upon all persons (both union and. nonunion persons); whether G. R. Vinson,. Frank A. Linnenberg," and. H. H. Field. were discriminated against in violation of the Act, and whether these proceedings should be dismissed on .the grounds that there has been compliance with the terms of 'certain settlement agreements which concerned the issues. involved herein.' . Another principal, prob- lem, concerns the application of the 6 months' provision of Section 10(b) of the Act. It has long been the policy of the Board to honor settlement agreements reached with the approval of an agent of the Board, unless the' agreement has been breached or unless the alleged unfair labor practices have been continued In such a way, that it seems - neces- sary to go behind the agreement in order to effectuate the policies of the Act. Wooster Bra8s Company, 80 NLRB 1633 , 1634, and cases cited . And see The Wallace Corpora- tion ,.-v. N.L.R.B ., 323, U. S..248, 254-255 ;' Poole, Foundry and ,itachine Company v. N.L.R.B., 192 F. . 2d 740 (.C:A.' 4). ; 'N.L.R.B. v. May Department Stores Conapa,ny, 154 'F. 2d 533 , 539 (C .A. 8). The Board's practice in`such a case is not to consider as evi- dence of .unfair labor practices conduct of a Respondent antedating the settlem@nt,;unless the Respondent has failed to comply with the agreement . or has engaged .in independent unfair labor practices since the settlement . Larran'oe'Tank Corporation, '94 NLRB 352 ; Rice-Stir of Arkansas, Inc., 79 NLRB 1333, 1334 , and cases cited. GALVESTON MARITIME ASSOCIATION, INC. 71];. BACKGROUND On November 17, 1954, H. H. Field filed the original charge in case No. 39-CB-90, naming as the "labor organization or its agents against which charge is brought" Local-1351; Steamship Clerks and Checkers, International Longs'h`oreth:ens' 'Asso- ciation, Independent, herein called Local 1351, and C. B. Morrow, business agent.. This charge states as the basis of the charge: On or about November 2, 1954, H. H. Field was employed as a checker by. Lykes Brothers Steamship Company, 1nc.,2 and thereafter, on November 5,. when he was paid for his work, Lykes Brothers Steamship Company,. Inc.,. turned his pay check over to C. B. Morrow, Business Agent, and Morrow required Field to pay him five percent of his, net earnings. for the privilege of working for Lykes Brothers Steamship Company, Inc. The above-named. labor organization, by its officers, agents and employees, has caused or at- tempted to cause employers to discriminate against employees in violation of sub-section (a) (3) of the Act in that it has charged non-members of Local. 1351 five percent of their net pay for the privilege of working, but has charged members of said organization two percent of their net pay. By the act set forth above and by other acts and conduct, the above'- named labor organization has restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. Employers have delegated authority to the above-named labor organization, to act as their hiring agent, and in, acting as hiring agent the Union causes or attempts to cause employers to discriminate in favor of members and against non-members with regard to hire and tenure of employment. On March 1, 1955, Field filed a first amended charge in Case No. 39-CB-90 which is the same as the original charge except that it contains as a "basis of the charge" an additional paragraph stating: "The above-named labor organization has executed a contract with Galveston Maritime Association, Inc., Houston. Maritime Association, Inc., and Master Stevedores Association of Texas, said ,contract being currently in effect, and requires that preference in employment be given members of said labor organization." On March 7, 1955, Field filed a second amended charge in substantially the same language as the first amended charge but.adding as parties against whom the charge was brought International Longshoremen's Association, Local 1665, Independent, herein called Local 1665, and its. president (T. M. Bennett) and South Atlantic and Gulf Coast District, International Longshoremen's Association, Independent, herein called South At- lantic and .Gulf Coast District, and its president (Ralph Massey). On the same date that Field filed the original charge in Case No. 39-CB-90 (November 17, 1954) G. R. Vinson filed the original charge in Case No. 39- CB-91 naming as the "labor organization or its agents against which charge is brought" Local 1351 and C. B. Morrow, business agent. This charge states as the basis of the charge: On or about November 1 and 2, 1954, G. R. Vinson was employed as a checker by Lone Star Stevedoring, Inc., and thereafter, on or about Novem- ber 5 when he 'was paid for his work, Lone Star Stevedoring, Inc., turned his pay over to C. B. Morrow, Business Agent, and Morrow required Vinson to pay five percent of his net earnings to said Morrow;- whereas, employees or members of said labor organization are required to pay only two percent of their net earnings to Morrow for the privilege of obtaining employment' through the hiring hall of the said labor organization. ' Employers have-delegated authority to the above-named labor organization' to act as their hiring agent, and in acting as hiring agent' the Union causes or attempts to cause employers to discriminate in favor of members and' against nonmembers, or so-called "permit men," with regard to hire and.tenure of employment. ' Also on November 17, 1954, Frank A. Linnenberg filed the original charge in' Case No. 39-CB-92 naming as the "labor organization' or its agents against which' charge is brought" Local 1351. This charge states as the basis of the charge:' On this same date-Field filed a charge against Lykes Bros. and.this case became known' as Case No. 39-CA-400. It was withdrawn on February 16, 1955. The above informa- tion,is reflected in, the-,records, of=this Agency. 712 DECISIONS• OF NATIONAL LABOR RELATIONS BOARD On or about August 5, 1954, the above-named labor organization caused or attempted to cause an employer, Strachan Shipping Company,3 to dis- criminate against Frank A. Linnenberg in violation of., Section 8(a) (3) for the reason that said Linnenberg was not a member of the above-named labor organization. On or about August 13, 1954, the above named labor organization caused or attempted to cause the above-named employer to discriminate against the said Linnenberg in that it turned Linnenberg's pay over to the Business Agent of said labor organization in order that the said Business Agent could collect 5% of the net pay of the employee. Members of said labor organization pay 2% of their net pay for the privilege of obtaining employment through the Union's hiring hall, but non-members are required to pay 5% of their net pay for the privilege of obtaining employment. By the acts set forth above the above-named labor organization has re- strained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. On March 14, 1955, Field filed the original charge in Case No. 39-CA-482 naming as the employer against whom charge is brought, "Galveston Maritime Association, Inc., et al ., Houston Maritime Association, Inc. ., Master Stevedores Association of Texas. . . .. This charge states, as the basis of the charge: On or about November 1, 1954, and at all times thereafter, the above- named employers, by virtue of having executed a collective bargaining agree- ment with Local 1665 and Local 1351 and South Atlantic and Gulf Coast District, International Longshoremen's Association which contract provides for preferential hiring of members of the above-named labor organization, have interfered with, restrained and coerced their employees in the exercise of the rights guaranteed by Section 7 of the Act. On May 6, 1955, Local 1665, South Atlantic and Gulf Coast District and H. H. Field (Local 1351 and C. B. Morrow did not sign) executed a settlement agreement in Case No. 39-CB-90. Under the terms of the agreement the Unions were to post certain notices and comply with the terms thereof. The notices over the names of Local 1665 and T. M. Bennett, president, and South Atlantic and Gulf Coast District, and Ralph Massey, president, state: WE WILL NOT give further effect to the provisions of the collective bar- gaining agreement with the Houston Maritime Association, Inc., Galveston Maritime Association, Inc., and Master Stevedores Association of Texas,. or any member thereof, which accords preference in employment to members of this union. WE WILL NOT cause or attempt to cause Houston Maritime Association, Inc., Galveston Maritime Association, Inc., and Master Stevedores Association of Texas, or any member thereof, to discriminate in regard to the hire or tenure of employment of any employee or prospective employees in violation of 8(a)(3) of the said Act. WE WILL notify in writing the Houston Maritime Association, Inc., Galveston Maritime Association, Inc., and Master Stevedores Association of Texas that we will not give further effect to the preferential hiring provision of the collec- tive bargaining agreement presently in effect. WE WILL NOT in any manner restrain or coerce employees or prospective employees of Houston Maritime Association, Inc., Galveston Maritime Asso- ciation, Inc., and Master Stevedores Association of Texas, or any members thereof, in their exercise of the right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. On or about June 7, 1955, Houston Maritime Association, Inc., Galveston Maritime Association, Inc., and Master Stevedores Association of Texas and H. H. Field signed a settlement agreement in Case No. 39-CA-482. Under the terms of this agreement the employer associations were to post certain notices and a According to the records of this Agency on this same date Linnenberg filed a charge against Strachan Shipping Company which was withdrawn on February 16, 1955. This case is known upon the records of the Board as Case No. 39-CA-462. GALVESTON MARITIME ASSOCIATION, INC. - 713 comply with the terms thereof. The notices over the names of these employer associations state: WE WILL NOT give further effect to the provisions of the collective bar- gaining agreement between the employers and Local 1665 and Local 1351, Steamship Clerks and Checkers, International Longshoremen's Association, Ind., and South Atlantic and Gulf Coast District, ILA, which contract pro- visions require us to give preference in employment to members of the above-named labor organizations. WE WILL cease giving effect to that provision of the agreement and we will not, by any modification, extension, supplement or renewal of that agreement, or by any other labor contract or understanding give preference in hiring of members of the above-named labor organizations. WE WILL notify in writing Local 1665 and Local 1351, Steamship Clerks and Checkers, International Longshoremen's Association, Ind., and South Atlantic and Gulf Coast District, ILA, that we will not give further effect to the preferential hiring provision of the collective bargaining agreement presently in effect. WE WILL NOT interfere with, restrain, or coerce our employees in the right to engage in, or refrain from engaging in, collective activity as guar- anteed by Section 7 of the Act. All of our employees are free to become or remain members of the above-named labor organization or to refrain from becoming members of the above-named labor organizations. On or about June 9, 1955, the Regional Director for the National Labor Relations Board, Sixteenth Region (Fort Worth, Tex.) and the Officer in Charge of the Houston office of the Board approved the aforementioned settlement agree- ments. The parties herein agree that the aforementioned settlement agreements were intended as a resolution of all of the contentions raised in Cases Nos. 39-CB-90, 91, and 92 and 39-CA-482. Notices were posted in accordance with the terms of the settlement agreements and Local 1351 also posted at its business offices in Houston, Tex., copies of the notice provided for in Case No. 39-CB-90. Also, in accordance with the intent of the settlement agreements, the parties thereto and Local 1351 exchanged letters stating that the preferential hiring provisions of their collective-bargaining agreement would no longer be given effect. On October 6, 1955, C. R. Vinson filed the original charges in Cases Nos. 39-CA-524 and 39-CB-123 alleging, in substance, that he (Vinson) and Linnen- berg had been discriminated against because they were not members of Local 1351 and because they had previously filed charges in Cases Nos. 39-CB-91 and 39-CB-92 and alleging that there was in effect a preferential hiring system whereby preference in employment was being accorded to members of Local 1351. Vinson filed first amended charges in these cases on June 6, 1956, which, in substance, repeated the claims made in the original charges and added an allegation that Local 1351 made "certain gratuities to its members which were not made to" nonmembers. On July 30, 1956, Vinson filed second amended charges in these cases adding certain members of the employer associations and South Atlantic and Gulf Coast District as Respondents and adding H. H. Field as a person who had been discriminated against . On November 1, 1956, Vinson filed the third amended charge in Case No. 39-CB-124 adding Avenue N Building Corporation and International Longshoremen's Association. Independent, as Respondents. By letter dated November 6, 1956, the Regional Director for the National Labor Relations Board , Sixteenth Region, advised the Employer Associations involved herein, Local 1665, Local 1351, and South Atlantic and Gulf Coast District that the settlement agreements (in Cases Nos. 39-CA-482 and 39-CB-90) were being set aside and the charges in these matters were being "fully reinstated" because of "non-compliance with the provisions of the Settlement Agreements." On this same date (November 6, 1956) the said Regional Director issued the complaint involved herein. The complaint, in substance, alleges insofar as unfair labor practices are con- cerned that: (1) Respondents have entered into an agreement according to the Unions control of hiring. (2) In the administration of the agreement and in practice assistance has been illegally accorded to Local 1351 in the preferential hiring.of its members. (3) Local 1351 engages in a practice and Respondent Employers acquiesce in such practice, whereby persons working out of the union 's hiring hall as a condition of employment are required to designate the Union as their 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining representative and to pay a percentage of. their wages to the Union and whereby Local 1351 exacts from non-members using, its hiring hall a percentage of their wages in a greater amount than that charged for its members. (4) There -has been unlawful discrimination against Vinson, Linnenberg, and Field. At' the hearing held 'in Houston, Tex., on February '27 and March •6,•*7, 8, 11, 12, 13, 14, 15, 18, and 19, 1957, the Trial Examiner made certain rulings con- cerning the application of the 6 months' provision of Section 10(b) of the Act. Thereafter, by a document entitled. "Order to Show Cause" which is hereby,made .a part of the record herein as Trial Examiner's Exhibit No. 2, the Trial Examiner indicated that possibly certain of these rulings were not in accord with current ,decisions of this Agency and that, perhaps these rulings should be revised. There- .after, counsel for Respondents charged with violating Section 8(b) _ of the Act submitted a response to said Order to Show Cause. Said response is hereby made .a part of the record herein as Trial Examiner's Exhibit No. 3. Counsel for the General Counsel covered this matter in his brief and no response to said Order ,to. Show Cause has been received from counsel for Respondents charged- with .violating Section 8(a) of the Act. The Trial Examiner hereby revises his rulings ,as indicated in the Order to Show Cause, a copy of which is attached hereto as .an appendix. At the hearing the Trial Examiner took under consideration, motions to dismiss the complaint which are now disposed of in accordance with the following findings and conclusions. The Contract On or about October 1, 1953, a collective-bargaining agreement was executed by representatives of Local 1351, Local 1665, South Atlantic and Gulf Coast District, Houston Maritime Association, Inc., Galveston Maritime Association, :Inc.,. and 'Master Stevedores Association of Texas. This agreement' recites that 'it is effective from October 1, 1953, until midnight September 30, 1955. On or about April 12, 1955, the parties negotiated a modification and extension of this contract. The modification concerned changes in wages and did not change the other provisions of the contract and the extension continued the contract, as modified, to September 30, 1956. The contract 'as originally agreed upon, and as modified, contained the follow- ing clauses: 1. The members of the Parties of the First Part [Respondent Associations] shall have the right to employ members of the Party of the Second Part [Local 1351 and Local 1665], calling them by name to be used as regular salaried Wharf Clerks, extra Wharf Clerks - or Timekeepers as provided in Paragraph 4, Section B and C thereof: It being distinctly understood that the employer has the right during the life of this contract to call regular monthly men, extra Wharf Clerks and Timekeepers by name and complete ,discretion as to the number- of regular men-to be carried on the monthly payroll, varying the number' as they see fit with the usual proper notice of fifteen days. 2. Members of the Party of the Second Part [Local .1351 and Local 1665] -shall have preference of all work pertaining -to. extra. Clerking, Timekeeping, Checking and Tallying as defined in Section. 1, Paragraph.A -hereof.. The Party of the second part shall reserve the right to rotate work among these Checkers. and Tallymen. As noted above, by an exchange of letters in connection with the aforemen- tioned settlement, agreements the parties canceled the preferential hiring provisions of•their contract (paragraph number 2 quoted above). Furthermore, by a second (and current) modification and supplement of the original contract, which became effective on or about February 14, 1957, the parties deleted from the contract the section of the contract covering preferential hiring. ., Clause -No. 2, • on. its face, provides for preferential , hiring of members of Local 1351 and Local 1665, and, as such, is unlawful because -it exceeds the permissible limits of the, proviso of Section .8(a).(3,) of the Act. However, here the -contention is that' these two clauses; taken together, delegate to -Local -1351 and- Local .1665 control over the-selection of extra "Checkers--and Tallymen" and .hence, are violative_ of -the Act.. Absent the., last- sentence.: of clause No. 2, quoted -.above, it appears .that, these clauses fall in. the same. category-with clauses ,.-GALVESTON MARITIME ASSOCIATION, INC. 715 which ; merely require preference of employment, to union members. But the sentence under consideration adds another element, and thereby not only requires preference of employment, but delegates to the Locals control over the selection for employment. Whether this is per se violative of the Act has not been de- termined by this Board. In Imparato Stevedoring Corporation, 116 NLRB 667, 668, footnote 6, the Board sidestepped a similar contention. See also Enterprise Industrial Piping Company, 117 NLRB 995. Moreover, Board and court decisions bearing upon this subject matter tend toward the view that such relegation of em- ployment functions is not per set violative of the Act. In any event, here the parties, in accordance with the terms of the settlement agreements, exchanged letters canceling, and. later by amendment to the contract, deleted, the clause in question. In this context it is believed that the Board should not now go behind the settlement agreements and pass upon the issue under consideration. See Larrance Tank Corporation, 94 NLRB 352. Hiring System - This proceeding concerns primarily extra clerks and checkers who perform, work for Respondent Companies (members of the Employer Associations) in connection -with the loading and unloading and delivery and receipt" of cargo and the system .herein described applies to these extra clerks and checkers. All such persons are employed through the hiring hall operated and administered by Local 1351. No such persons are hired except through this hiring hall. Local 1351 maintains , at its place. of business in Houston, Tex., a list of clerks .and checkers available for work. On the day that work is to be performed or a .day or two before such date the chief clerk for the employer involved calls the business agent of Local 1351 and tells him the anticipated number of clerks :and/or checkers that will be required, the time that they will be needed, the location where needed, the type of work involved, and the anticipated duration of the work. The business agent then reads the available list and from this list the chief clerk selects the men desired.' Following this selection . the business agent informs the individuals selected, telling them where; when, and to whom to report. Sometimes he also tells them the work involved and the anticipated dura- tion of the job. The individual selected then reports for work, usually reporting to the chief clerk who had placed the order with. the business agent, and is put to work, usually, but not always, on the job, which the chief clerk had mentioned to the, business agent. For example, the chief clerk may have told the business agent the individual would be used in connection with cargo on a certain ship and yet actually use the individual selected in connection with cargo ,on a dif- ferent,ship. Sometimes the chief clerks do not make individual selections, leaving it to the business agent to determine the. individuals who will be given work and he (the business agent) then makes the selection . However, the normal procedure is as indicated above, and this procedure has been in operation for a number of years..(before and after the charges involved herein, the,execution and approval of .the aforementioned. settlement agreements , and the issuance of the complaint involved herein). Throughout the period of time material herein (for the, past several years and at least since January 1, 1954) the available list maintained by Local 1351 has been kept in such a fashion that the names of members of Local 1351 and the names of nonmembers have been readily discernible. However, the evidence adduced herein reveals- that when the, business agent reads the available list to chief clerks he does not tell the chief clerks whether.the individuals are members or nonmembers. Since practically all of the chief clerks.are members themselves they are able to, and usually do, recognize the names of members. Nevertheless, the evidence adduced does not reveal'that membership or nonmembership usually plays a part in the selection of individuals for work. As noted above, under' the contract (and prior to` the exchange of 'letters as mentioned above) Local 1351 reserved the right to rotate work. In his brief, counsel' for the General Counsel - states that the business agent practiced rotation but ceased such practice sometime between January 1, 1955, and July 1956. There is no affirmative evidence to this' effect. Possibly an inference is warranted-that prior to the settlement agreements in instances ' where the business agent made the selection of individuals for work he used the rotation system :but no `such in- ference is warranted after the settlement agreements . The evidence adduced 'does Loading and -'unloading' of cargo normally refers ' to cargo In connection ' with ships and delivery and receipt of cargo normally refers to cirgo in connection with trucks or railroad freight cars 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not reveal the basis upon which the business agent made the selections after the settlement agreements and it is presumed that he made them in a lawful manner without discriminating between union and nonunion men. As previously noted, Respondent Companies for the most part order extra clerks and checkers through their chief clerks. These chief clerks, generally, de- termine how many extra men are needed, arrange for their being present, assign them to their jobs, and supervise their work. Under the contract Respondent Companies have the right to employ members of Local 1351 as chief clerks and with few exceptions the chief clerks are members thereof. Chief clerks, while employed as chief clerks, have held office in Local 1351 and have served on its executive board and its committees, i.e., negotiating and membership committees. The constitution and bylaws of Local 1351, adopted March 12, 1952, provide as follows: Article I, Section 3: This Union shall have jurisdiction over all persons employed as Clerks, Checkers and Timekeepers by Steamship Companies and Contracting Steve- dores operating at the Port of Houston. Article II "Business Agent" He shall see that the rules of the Union are lived up to by the members, and report all violations in payment of dues, fines and percentage to the Executive Board. Article XX "General Working Rules" It is to be understood that at any time a member is put to work on a job, that he shall remain on the same job until it is finished, unless relief is mutually agreed to. Any member who solicits employment is subject to a fine or suspension by this Local. Any member who leaves one dock before he has been laid off to accept work at any other dock is subject to a fine or suspension by the Union. All members must respect the Chair. When a member fails to come to order when so ordered by the chair, he is subject to a fine and ejection from the hall. He shall be fined not less than $1.00 and not more than $25.00 and such member is not entitled to work until such fine is paid. Persons summoned and not appearing before the Executive Board shall be fined $25.00 unless prevented by illness. Percentage may be waived at any regular meeting for any member who may be sick or unable to work for a prolonged period of time. Any member delinquent in percentage shall pay double percentage due (at the time) plus $10.00 fine. Money to double at each of his regular paying times. Second offenders shall appear before the Executive Board for review. In no instance shall the fine be less than for a like first offense. The constitution and rules of order of the International Longshoremen's Asso- ciation, Independent, as amended July 11-15, 1955; in article XI, section 5, states: Where two or more Locals exist in the same Port and one Local has more than its membership can take care of, said Local shall give preference to members of the other Locals in the performance of such extra work. G. R. Vinson testified credibly that in 1955 and up to July 1956, there were occasions when Business Agent C. B. Morrow passed over nonunion men waiting in the hiring hall for assignment and sought men from the Deep Sea Local (Local 1273) and from the Carloaders Local (Local 1330). Since sometime during the early part of 1956, all persons seeking employment through the hiring hall operated by Local 1351, members and nonmembers alike, have been required to fill out and sign a form which at the bottom states that the signer thereby designates Local 1351 as his bargaining agent and that the signer thereby agrees to pay a percentage of his wages to Local 1351 "as compensation for services rendered." Between January 1, 1954, and early 1956, no similar written designation and agreement was required but applicants for work were required orally to agree to pay a percentage of their wages to Local 1351. The Trial Examiner believes and finds that the facts. outlined above establish a system whereby members of Local 1351 and members of sister locals of the GALVESTON MARITIME ASSOCIATION, INC. 717 International Longshoremen 's Association, Independent, are given preference for work over nonmembers . While the weight of authorities tends toward the view that hiring halls are not per se illegal and the evidence herein reveals that Re- spondents took certain action designed to bring the operation of this hiring hall within the limits of the law, nevertheless, it is believed that the hiring hall in- volved herein is still being operated in an unlawful manner and that effectuation of the policies of the Act require that this method of operation-the giving of preference-be discontinued. (See The Great Atlantic and Pacific Tea Company, 117 NLRB 1542.) Furthermore, as noted above, since sometime during the early part of 1956 (after the settlement agreements ) persons seeking employment have been required , as a condition of employment , to designate Local 1351 as the bargaining agent. In the opinion of the Trial Examiner , this deprives em- ployees of their free choice of such an agent and renders appreciable support and assistance to Local 1351 and thereby violates the Act and effectuation of the policies of the Act requires that this practice be discontinued. Percentages As previously indicated, at all times material herein , all persons (members of Local 1351 and nonmembers ) obtaining employment through the hiring hall involved herein were required to, and did, pay a percentage of their net wages to Local 1351 "as compensation for services rendered by" said Local. Per- centage payments were made by regular clerks (including chief clerks), checkers, and timekeepers, as well as by extra clerks, checkers, and timekeepers. Prior to the first week in April 1955, 2 percent of member's wages and 5 percent of nonmember's wages were collected . From the first week in April 1955 to the first week in November 1955, 5 percent was collected from both members and nonmembers . Since the first week in November 1955, 3 percent has been col- lected from both members and nonmembers . The income from percentage pay- ments was commingled with other funds of Local 1351. For the most part, wages are paid by checks which are distributed at the hiring hall by the business agent for Local 1351. In July 1955, the employers involved herein who are members of Master Stevedores Association of Texas began paying their employees by checks prepared by the service bureau of International Business Machines Corporation which prepares two checks for each worker-one in the amount of the percentage and the other in the amount remaining after appropriate deductions, including the percentage deduction. These checks are also distributed at the hiring hall by the business agent for Local 1351. At the time the business agent hands the employee his paycheck, the business agent collects the percentage due. In November 1955, Local 1351 refunded to each person who had paid per- centages the full amount of the percentage collected from such person during the period between April 1, 1955, and September 30, 1955. On the same date and at the same time, the business agent for Local 1351 handed to each member of Local 1351 who was a stockholder in Avenue N Building Corporation, herein called Avenue N Corporation,5 which included substantially all of the members of Local 1351, a check for $100 drawn against the account of Avenue N Corporation. Avenue N Corporation is a Texas corporation having its principal place of business in Houston, Tex. The original incorporators were officials and officers of Local. 1351, and its officers since its incorporation in September 1947 have been current or past officers and officials of Local 1351. Ralph A. Massey. president of South Atlantic and Gulf Coast District and president of.Local 1351 from sometime in the 1930's up through December 31, 1955, has been president of Avenue N Corporation since its incorporation . The business agent for Local 1351 is also an officer in Avenue N Corporation. John J. Casey is financial secretary for each organization. Avenue N Corporation is a "dormant" corporation and "sustains itself at the present time because it's not active except for what properties it's got and what's coming in." The only income which Avenue N Corporation receives is the rent money from Local 1351 for the building which Local 1351 uses for its business offices and hiring hall. This is the only property owned by Avenue N Corporation. . The payment to stockholders mentioned above was the only payment ever made only to stockholders of Avenue N Corporation. Ralph A. Massey, , president . of Avenue N. Corporation and president of Local 1351 ' at the time of the distribution of the $100 , first testified he did not know 5 The stockholders of Avenue N Corporation were all members of Local 1351. 718 DECISIONS OF NATIONAL LABOR RELATIONSl'BOARD the source of the money used to make the $100 payments but he thought there had been an advance - "on rent for some period to come." Later he testified that after talking with other stockholders, he found 'some $7,500 was' advanced to Avenue N by Local 1351, to apply against rent at some future dater The : date was not determined as to when it- would be paid. That is where the money comes from to pay off that hundred dollars." Massey further testified there _ is. no written evidence of this transaction, that it "was just all oral," and that he did not have anything to do with it except to "sign the checks when handed to me." John J. Casey, financial secretary of Local 1351 and of Avenue N Corporation at the time of the distribution of the $100, testified concerning the source of the money used to make these payments: Well, in 1953 we put $17,000.00 of 1351's money in building and loans, in trust, to Avenue N. Then we paid percentages, all the percentages from October-I mean-wait a minute-April 1, 1955, to October 1, 1955, every- body that worked through the Local we paid their percentage back, and we drawed this money out of the building and loans to help pay off this per- centages,6 and then we loaned $7,500.00 of that money to Avenue N. There is no written instrument showing that a loan was made or an advancement of rent was made by Local 1351 to Avenue N Corporation. No corporate minutes of such a transaction were made and neither organization has anything in writing concerning this matter, except the canceled checks and the check stubs. Further- more, there is no evidence of any arrangements for repayment of the money. Under the circumstances noted herein, at appears and the Trial Examiner finds that the $100 payments by checks on the account of Avenue N Corporation were in effect and substance payments by Local 1351 and additional refunds of per- centages and that thus members of Local 1351 received larger refunds than nonmembers. Stated another way-thus nonmembers were charged a greater percentage than members of Local 1351. Any claim that monthly dues and assessments paid by members of Local 1351 offset the aforementioned $100 additional refund or establish a situation where in fact individual members paid more'into the general funds -of Local 1351 is hereby rejected by the Trial Examiner. During the period of time involved herein, individual members did not pay assessments not also paid by nonmembers of Local 1351. The monthly dues payments by members amounted to $1 per month. However, the record also establishes that members received greater benefits from Local 1351 than nonmembers received.? Since by custom or practice, work could not be obtained except through the hiring hall and employment through the hiring ball was conditioned upon payment of percentages, and since a greater amount of percentages was collected from nonmembers than from . members, discriminatory conditions of employment were imposed which the Act does not sanction. As noted at the beginning of this report , the charges filed prior to the settle- ment agreements were abased in part upon the theory that it was unlawful. to charge nonmembers a greater percentage than . members. . This is also the theory upon which the complaint issued. At the hearing before the Trial Examiner (and in his brief).counsel.for the General Counsel conceded that as part of the settle- ment agreements "the differential" was eliminated and percentages equalized,: but claimed that by virtue of the payments made through Avenue N Corporation the percentages paid by nonmembers exceeded those paid by members. As previously noted, the Trial Examiner agrees with this contention. ..It is noted that the pay- ments through Avenue N Corporation occurred after the settlement. agreements. Ordinarily the Board will respect the terms of a-settlement agreement approved by an agent of the Board. However, it goes behind such agreements where the agree- ment has been breached, where subsequent events have demonstrated that efforts at adjustment have failed to accomplish their purpose, or where there has been a subsequent unfair labor practice.. (See. footnote 1.) At the hearing before the Trial Examiner, a: further issue of, whether percent-. age . payments if equal are nonetheless violative of the Act was litigated.. In his. Percentage refunds were made from money In Local 1351's treasury, according- to Business Agent Morrow, and from Local 1351's cash -on hand, according to Local 1351's „president , Herrick Vestal. . . . 7 Many examples are. readily . available but the Trial . Examiner believes the following example sufficient for illustrative purposes : $1,000 life insurance policies are carried by- Local 1351 for nonmembers and $2,000 policies are carried for members. , , •,GALVESTbN MARITIME ASSOCIATION, INC. 719' brief, counsel for the General Counsel claims that the payment through Avenue N Corporation was a "ruse" or "hoax" and that assuming the percentage payments are equal, they are nevertheless violative of the Act. Since employment is condi- tioned upon clearance through the hiring hall and clearance is conditioned upom payment of percentages which are commingled with other funds of Local 1351 and these commingled funds are used for the general expenses of Local 1351,. including, but not limited to, expenses in connection with the operation of the hiring hall, it appears and the Trial Examiner finds that percentages are charges. collected from employees as the price for obtaining and retaining their jobs, are charges which aid and support Local 1351, and are charges which discriminate, against persons who refuse to render such aid and support. Accordingly, they are charges violative of the Act. However, the Trial Examiner believes it would be unfair to Respondents now to require reimbursement of all percentages collected' in view of the facts establishing that the settlement agreements were accepted on. the theory (at least implied) that equal percentage payments were not unlawful and that the theory now under consideration was first advanced at the hearing herein. No such unfairness appears with respect to the unequal percentages col- lected and the Trial Examiner believes that an appropriate method of rectifying this situation is a requirement that all persons who received refunds of percent- ages but not the $100 payments be further reimbursed to the extent of $100. Individual Discriminations The complaint alleges discriminations against G. R. Vinson, Frank A. Linnen- berg, and H. H. Field because they have not assisted or had not become members, of Local 1351 and because they filed the aforementioned charges. Vinson started working out of the hiring hall operated by Local 1351 in July 1946. His last workday was November 10, 1955. However, he continuously- sought work at the hiring hall until July 1, 1956. Beginning in January 1956, he went to the hiring hall 3 or 4 times a week (which was less frequently than he had been going) and continued this frequency until July 1, 1956, without get- ting work. On occasions during this period the business agent (C. B. Morrow) passed over Vinson (and Linnenberg) and sought workers from sister locals of' Local 1351 (from Local 1330 and Local 1273-the Carloaders and the Deep Sea locals). Vinson did not go to the hiring hall after July 1, 1956.8 On October 6, 1955, Vinson filed the charges in Cases Nos. 39-CA-524 and 39-CB-124. On October 8 and 9, 1955, Vinson received telephone calls from a person who refused to identify himself who told Vinson he had better stay away from Local 1351 or he "might get hurt."9 On October 10, 1955, Business Agent Morrow telephoned Vinson and offered him a job as a timekeeper. Vinson pro- tested that he had never kept time. Morrow then made it plain that he was irritated at Vinson and told him that if he kept coming to the hiring hall "some- body is going to knock you in the head and beat you up." Vinson then-remarked that he had been told-by the National Labor Relations Board it was "all right to go to the hall" and Morrow responded: "I want you and Linnenberg to under- stand that you are not welcome out here" and hung up the telephone. On November 7 and 28, 1955, someone tampered with Vinson's automobile' while it was parked near the hiring hall. After the second such incident Vinson parked his car in such a way that he could watch it through venetian' blinds on the entrance door of the hiring hall, which was usually kept open. On December 2, 1955, Business Agent Morrow, without an explanation, closed these blinds thereby obstructing Vinson's view of his car. - On May 8, 1956, Business Agent Morrow telephoned Vinson and told him, (Vinson) he (Morrow) wanted to talk to him but he did not want Vinson "to tell the NLRB what he wanted to talk" about. Vinson responded that he (Vinson) and Linnenberg had taken the case to the National Labor Relations Board and' "whatever happened he would have to tell the NLRB." Morrow then stated that Linnenberg was out of the case and had nothing whatever to do with it and had' not been down-to the hall that year and that if Vinson "had not brought this case 8 Under the circumstances Vinson was not required to go through the useless and futile procedure of reappearing at the hiring hall. N.L.R .B. v. The Lummus Company, 210 F: 2d 377, 381 (C.A. 5). e About this same time Linnenberg also received a telephone call from an unidentified' person who told him (Linnenberg) "you better stay away from Local 1351 hall, if, you know what is good for you." 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD up that I [Vinson] would have been at work like Wright10 and some of the others." In the course of this conversation Vinson indicated to Morrow that he (Vinson) wanted to work rather than draw social-security benefit payments and Morrow again referred to Wright and indicated that Vinson could receive all the work he could handle, like Wright was doing, if he (Vinson) would disassociate himself from the National Labor Relations Board. As a result of the work Vinson received through the hiring hall his earnings in 1953 totaled $3,500 or $3,600. In 1954 his earnings totaled about $1,000 less than in 1953, in 1955 his earnings totaled about $2,500 less than in 1953, and in 1956 he did not receive any work through the hiring hall. Linnenberg started working out of the hiring hall in November 1946. In addition to his earnings from the employers involved herein, Linnenberg received a pension and social-security benefit payments. Linnenberg usually with- draws voluntarily from the labor market as his earnings approximate the maximum permitted without forfeiture of social-security payments. From September 1954 to about May 1, 1955, Linnenberg left the labor market and was not available for employment. He again sought work through the hiring hall beginning about the first of May 1955 and thereafter worked from May 9 to October 17, 1955, and his earnings during this period we.'e approximately $293 less than the maxi- mum amount which he could receive without forfeiture of social-security benefit payments. However, toward the end of this period he thought he was not receiv- ing as much work as he was entitled to and,•that he was wasting his time sitting around the hiring hall and he ceased visiting the hiring hall after October 17, 1955.11 Nevertheless, he did not complain to Respondents about his failure to get the amount of work which he thought he ought to get and did not explain to Respondents why he ceased visiting the hiring hall. As noted above, the charges filed on October 6, 1955, allege, inter alia, discriminations against Vinson and Linnenberg because of nonmembership in Local 1351 and because they had pre- viously filed charges. Counsel for the General Counsel concedes (in his brief to the Trial Examiner) that following "the settlement and the posting of notices, Vinson. and Linnenberg did receive what might be said to approach somewhat normal work" but contends that this was discontinued after the notices were taken down. As noted above, the record herein reveals that the filing of the aforementioned charges and activity adverse to Local 1351 played an important part in Vinson's and Linnenberg's fail- ures to receive more work than they did.12 The record also suggests that age, ability to do agile work, and the limitation which Linnenberg set upon the amount of money he wished to earn played a part in Linnenberg's failure to receive more work than he did. However, it is well settled that where an unlawful reason is a motivating cause, the coexistence of separate lawful reasons does not eliminate the unlawful aspect of the conduct. See N.L.R.B. v. Remington Rand, Inc., 94 F. 2d 862, 872 (C.A.- 2), cert.. denied 304 U.S. 576 and 585. Field, a nonunion checker, obtained work through the hiring hall during the years 1951, 1952, 1953, and 1954. He has not worked as a checker since Decem- ber 30, 1954. Field testified that on or about November 26, 1954, " a little argument" arose in a card game he was in and on that occasion Leo Sheppard, a nonunion worker, threatened to "whip" him for filing a charge against Local 1351 13 and he (Field) reported the matter to the business agent for Local 1351 who told Sheppard to "cut that stuff out in the hall." Field further testified that about a week later (on or about December 3, 1954) he asked the business agent why he was not getting any work and the business agent said, "Mr. Field, there won't be any work for you. My bosses told me not to give you work." Nevertheless, the business agent did send Field on a job on December 30, 1954, and nothing was said about the "bosses" not letting Field work. The business 'agent denied that he had a discussion with Field on December 3, 1954, and told him that his "bosses told [the business agent] not to give him [Field] any more work." There is no evidence 10 O. O. Wright, a nonunion checker who is about the same age as Vinson, earned a little over $4,900 in 1956, not quite $4,000 in 1955, and a little over $4,000 in 1954. u See footnote 8. It is immaterial herein that the evidence "adduced does not reveal the specific jobs available. N.L.R.B. v. The Lummus Company, 210 F. 2d 377, 380-381 (C.A. 5):; N.L.R.B. v. Swinerton, 202 F. 2d 511•, 515 (C.A. 9) ; Consolidated Western Steel Corpora- tion, et at., 108 NLRB 1041, 1044; Seabright Construction Company, 108 NLRB 8, 9. is As noted earlier herein Field filed the charge in Case No. 39-CB-90 on November 17, 1954. GALVESTON MARITIME ASSOCIATION, INC. 721 that the "bosses did give such instructions and in the light of the entire record herein the Trial Examiner credits the business agent's denial. On January 2, 3, or 4, 1955, Field received a telephone call from an unidenti- fied person who told Field that he should stay away from the docks, otherwise "you might have an accident." Field immediately called the business agent for Local 1351 who indicated to Field that Local 1351 was not connected with such threats. Nevertheless, Field did not thereafter seek work along the Houston water- front-he "sat on my back porch and looked at the television." However, his name remained on the available list as being available for work, although he was not called for work. The record does not specify why he was not called for work and, in the opinion of the Trial Examiner, the evidence adduced is not sufficient to warrant an inference that the reasons are those alleged in the complaint. After the aforementioned settlement agreements, Field did not "tell anybody from Local 1351 and the various other respondents that are involved in this case that" he was available for work. Furthermore, unless Field's participation in the settlement negotiations is considered as seeking work, Field did not seek work through the Respondents involved herein after January 1955. If Field's participa- tion in the settlement efforts is considered as seeking work, the evidence adduced does not establish that since the settlement agreements Field has been denied work for discriminatory reasons. In the light of the entire record herein, the Trial Examiner recommends that 'the allegations of the complaint to the effect that Respondents discriminated against Field be dismissed. RESPONSIBILITY-REMEDY In short, the evidence reveals that in practice Local 1351 has been and is the hiring agent of Respondent Employers and as such agent engages in unfair labor practices within the meaning of the Act.. Respondent Employers' participation in the system involved herein is more than a passive one. In addition to condoning and acquiescing in the practice described herein, Respondent Employers actively assist Local 1351. Thus, hiring is done only through Local 1351, hiring is limited to those persons who designate Local 1351 as the bargaining agent of Local 1351 who distributes these checks and at the same time collects percentages, and chief clerks, who clearly are supervisors within the meaning of the Act, are also officials of Local 1351. Accordingly, the system involved herein exists by virtue of the customs and practices which Respondent Associations, Respondent Employers, and Respondent Local 1351 permit and encourage and each must share liability for the unlawful conduct. (See Mountain Pacific, Seattle, and Tacoma Chapters of the Associated General Contractors of America, Inc., 117 NLRB 1319; E. F. Shuck Construction Co., Inc., 114 NLRB 727, and Cisco Construction Company, 114 NLRB 27.) The conduct which the Trial Examiner deems unlawful, for the most part, con- cerns current practices-practices within 6 months of the filing of the charges herein. Consequently, with respect to these matters there 'is no longer any issue concerning the 6 months' provision of Section 10(b) of the Act. However, with respect to the recommendations (hereafter made) that all persons who received refunds of percentages but not the $100 payments be further 'reimbursed to the extent of $100 and that Vinson and Linnenberg be made whole from October 10, 1955, there may be problems insofar as the individual Employers named in Ap- pendix A are concerned, since the first charge naming them as Respondents is the second amended charge in No. 39-CA-524 filed on July 30, 1956. In view of the ]imitation period. of Section 10(b) of the Act and the lack of service of process upon these Respondents prior to July 30, 1956, 'the Trial Examiner will not enter a recommended order requiring them to make the-further reimbursement of $100 or requiring them to make whole Vinson and Linnenberg for loss of wages incurred prior to January 30, 1956. However, it is recommended that Respondent Associa- -tions, if necessary to carry out the recommendations hereafter stated, secure the cooperation of said individual Employers. (See N.L.R.B. v. Hopwood Retinning Co., Inc., 98 F. 2d 97, and 104 F. 2d 302 (C.A. 2).) Galveston Maritime Association, Inc., and its members are parties to these pro- peedings by virtue of the issues herein concerning the contract and they did not participate in. the practices outlined in this report, all of which occurred in the port of Houston. Accordingly, the Trial Examiner will recommend that the alle- gations of the complaint to the effect that these Respondents violated the Act be .dismissed. It. would take a long stretch of the imagination to say' that Avenue N Corpora- tion, Local .1665, T. M. Bennett,,South Atlantic and Gulf Coast District, Ralph 505395-59-vol. 122-47 ' 722 DECISIONS.OF NATIONAL. LABOR. RELATIONS BOARD Massey, and International Longshoremen's Association, Independent, had no knowl- edge of the events outlined above. However, they are not primarily responsible for the unfair labor practices found and their connection therewith, if any, is only a passive one. Accordingly, the Trial Examiner will not enter a recommended order against them. It is believed that the recommendations hereafter made are appropriate and adequate to remedy the unfair labor practices committed and to restore the status quo prior to such unfair labor .practices. However, it is recom- mended that Local 1351, if necessary to carry out the recommendations stated, secure the cooperation of the Respondents mentioned above. The evidence adduced herein is not sufficient to establish discriminations against Vinson or Linnenberg prior to the latter part of 1955.14 In view of the concession of counsel for the General Counsel that following the settlements and posting of notices and until after the notices were taken down Vinson and Linnenberg received "what might be said to approach somewhat normal work," and in view of the fact that Business Agent Morrow first made it clear that Vinson and Linnenberg were personae non gratae on October 10, 1955, the Trial Examiner will recom- mend that Vinson and Linnenberg be, made whole from this date (October 10, 1955). Bearing in mind the requirement that applicants for work must go to the hiring hall and there designate Local 1351 as the bargaining agent and agree to pay percentages, the fact that supervisory employees (chief clerks) hold office in and serve upon important boards and committees of Local 1351, the system of han- dling paychecks and percentage deductions (whereby the business agent of Local 1351 acts in a dual capacity-distributing the paychecks and at the same time collecting percentages), and bearing in mind the fact that income from percentage payments is commingled with other funds of Local 1351 and these commingled funds are used for purposes other than payments of expenses in connection with the operation of the hiring hall (used to pay Local 1351's expenses generally, both those incurred in the operation of the hiring hall and those not directly related to such operation), the Trial Examiner believes and finds that the facts outlined above establish a considerable amount of assistance and support to Local 1351 which this Board and the courts will not condone, although hiring halls may not be per se unlawful and equal percentage payments in some hiring-hall situations may not be banned by the Act. The recommendations hereafter made' are designed to correct this situation and to effectuate the policies of the Act. These recom- mendations follow the Board's established policy in such cases and no further dis- cussion thereof appears necessary. ULTIMATE FINDINGS AND CONCLUSIONS In summary, the Trial Examiner finds and concludes: 1. The evidence adduced satisfies . the Board's requirements for the assertion of jurisdiction herein.is 2. Local 1351, Steamship Clerks and Checkers, International Longshoremen's Association, Independent, is a labor organization within the meaning of Section 2(5) of the Act. 3. The evidence adduced herein establishes that the hiring hall involved herein is operated or administered in such a manner that it constitutes a violation of Section 8(a)(1)(2) and (3) of the Act on the part of Houston Maritime Associa- tion, Inc., Master Stevedores Association of Texas, and the individual members of said associations, and of Section 8(b)(1)(A) and (2) of the Act on the part of Local 1351. 4. The evidence adduced herein establishes discriminations against G. R. Vinson and Frank A. Linnenberg in violation of Section 8(a)(1)(3) and (4) of the Act on the part of Houston Maritime Association, Inc., Master Stevedores Association of Texas, and the individual members of said associations, and of Section 8(b) (I) (A) and (2) of the Act on the part of Local 1351. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the. Act. 14 As noted earlier in this report Vinson testified that in 1955 (and 1956) there were occasions when Business Agent Morrow passed over him (Vinson) and Linnenberg and sought men from sister locals of Local 1351. The record as a whole infers that this occurred during the latter part of 1955 and there is no affirmative evidence of such conduct prior to then. u The unfair labor practices involved here affect the operations of many steamship and stevedore companies In the port of Houston, Tex. Cargo valued In the hundreds of thousands of dollars moves through this port annually in interstate and foreign commerce. DURIAM COCA-COLA BOTTLING. COMPANY 723 6. The allegations of the. complaint to the effect that, Respondents are maintain- ing and continuing in effect illegal provisions of an agreement should be dismissed. 7. The evidence adduced herein is not , sufficient to establish discrimination against H. H. Field in violation of the Act and allegations of the complaint to this effect should be dismissed. 8. The allegations of the complaint to the effect that Galveston Maritime' Asso- ciation, Inc., and its individual members violated the Act should be dismissed. [Recommendations omitted from publication.] ORDER TO SHOW CAUSE At the hearing in the above matter the Trial Examiner made certain rulings based upon the Board's decision in Knickerbocker Manufacturing Company, Inc., 109 NLRB 1195. On March 26, 1957 (after the close of the hearing in the above matter), the Board's decision in Triboro Carting Corporation, 117 NLRB 775 was issued. On the basis of the Triboro Carting case it appears that the following rulings should be revised as indicated below: 1. On pages 107-109 and pages 201-202 of the transcript the Trial Examiner ruled that the original charge in Case No. 39-CB-90 was not sufficient to support the allegations contained in paragraph 6 of the complaint herein. Under the Triboro case, it appears that this original charge is sufficient to support these allegations. 2. On page 110 of the transcript, the Trial Examiner ruled that the original charge in Case No. 39-CB-90 was not sufficient to support the allegations con- tained in paragraph 7 of the complaint. Under the Triboro decision, it appears that this original charge is sufficient to support these allegations. 3. On pages 110-113 of the transcript the Trial. Examiner ruled that the original charge in Case No. 39-CB-90 was not sufficient to support the allegations con- tained in paragraph 11 of the complaint. Under the Triboro decision, it appears that this original charge is sufficient to support these allegations. 4. On pages 134 and 178 of the transcript the Trial Examiner ruled that, the .original charge in Case No 39-CA-482 was not sufficient to support the allega- tions contained in paragraph 6 of the complaint. Under the Triboro decision, it appears that this charge is sufficient to support these allegations. 5. On page 135 of the transcript, the Trial Examiner ruled that the original charge in Case No. 39-CA-482 was,not sufficient to support the allegations con- tained in paragraph 11 of the complaint. Under the Triboro decision, it appears that this charge is sufficient to support these allegations. 6. On pages 174, 175, and 178 of the transcript the Trial Examiner ruled that the original charge in Case No. 39-CA-482 was not sufficient to support the- alle- gations concerning Field, Vinson, and Linnenberg contained in paragraph 12 of .the complaint. Under the Triboro decision, it appears that this charge is sufficient to support these allegations. In view of the foregoing, the parties herein are hereby D,RDERED to "show q^use,in writing to the Trial Examiner at Washington, D.C., on or before the 6th day"of May 1957, why the rulings noted above should not be revised as indicated above. Durham Coca-Cola Bottling Company and Retail, Wholesale and Department Store Union, AFL-CIO, Petitioner. Case No. 11 RC-1173.. December 29, 1958 DECISION, DIRECTION, AND ORDER On October 15, 1958, pursuant to a stipulation for certification upon consent election, an election was conducted under the direc- tton and supervision of the Regional Director for the :Eleventh Region among the employees in the agreed-upon unit. Following the. election, the Regional Director served upon the parties a tally of ballots, of which 1 ,was void, 22 were for the Petitioner, and 16 122 NLRB No. 88.