Local 1566, Int'l Longshoremen's Association

LOCAL 1566, INT'L LONGSHOREMEN'S ASSOCIATION 967 erence on the basis of Union membership in hire, tenure, seniority, wages, or other terms and conditions of employ- ment ; .. . Accordingly, as the contract is no bar," we find a question af- fecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c) (1) and Sec- tion 2(6) and (7) of the Act. 4. We find that all production employees of the Employer at its New York, New York, plant, excluding office clerical employees, sales employees, professional employees, watchmen, guards, and su- pervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.12 [Text of Direction of Election omitted from publication.] CHAIRMAN LEEDOM took no part in the consideration of the above Decision and Direction of Election. n The result is not affected by the separability clause of the contract which states that, should any portion of the contract be rendered illegal, the remaining portions of the contract shall not be invalidated . See the Keystone case, supra. 12 The unit was stipulated by the parties. Local 1566, International Longshoremen's Association and Mar- vin Gould and Maritime Ship Cleaning and Maintenance Co., Party to an Agreement, and Philadelphia Marine Trade Asso- ciation, Party to a Contract Local 1566, International Longshoremen 's Association and Zack Page and Maritime Ship Cleaning and Maintenance Co., Party to an Agreement, and Philadelphia Marine Trade Association, Party to a Contract. Cases Nos. 4-CB-361 and 4-CB-362. January 16, 1959 DECISION AND ORDER On January 16, 1958, Trial. Examiner Charles W. Schneider is- sued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent had engaged in and was engaging in cer- tain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Respondent had not engaged in certain other un- fair labor practices and recommended that those allegations of the 122 NLRB No. 118. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint be dismissed. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and sup- porting briefs. The Board has reviewed the rulings made by the Trial Exam- iner at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed.' The Board has consid- ered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclu- sions, and recommendations of the Trial Examiner with the modi- fications and additions noted below. The General Counsel contended that the Respondent Union's 1954 and 1957 bargaining contracts with the Philadelphia Marine Trade Association were unlawful because the contracts on their face gave preference in employment to union members, and the Union had not complied with the filing requirements of Section 9(f), (g), and (h) of the Act before the contracts were made. The Trial Exam- iner found that the Union had been in lawful compliance with those filing requirements before the 1954 contract was signed, but not before the date when the 1957 contract was made. Accordingly, he found only the 1957 contract was unlawful. The General Counsel has excepted on the ground, inter alia, that the union-security clauses in both contracts were unlawful, apart from any question of compliance with Section 9(f), (g), and (h) of the Act. The union-security paragraph, which is identical in both contracts, reads : UNION SECURITY : As to any and all work covered here- under, finally determined by duly constituted public authority not to be subject to any statute forbidding a preferential hir- ing provision, the employers agree to give a preference to long- shoremen who are members of the Union in good standing. As 1 The Respondent has excepted to the denial of a pretrial motion for discovery and for production of witnesses ' statements . It filed the motion with the Regional Director before the hearing requesting "copies of the statements taken from all witnesses by or on behalf of the Board representatives" and "the names and addresses of each and every witness interrogated by the Board in connection with these proceedings ." It demanded this mate- rial "in order to properly prepare for the hearing." The Regional Director denied the request because no basis or foundation had been established . Thereafter, the Regional Director denied the Respondent's motion for reconsideration and for postponement of the bearing and the Board denied permission to appeal the rulings . Similarly, the General Counsel denied an appeal. The Respondent renewed its motion to the Trial Examiner before the hearing commenced . The Trial Examiner denied the motion. The courts and the Board have granted specific requests for the production of a Government witness ' pretrial affidavit where the request is properly made after the witness has testified . Jencks v. United States, 353 U.S. 657 ; Ra-Rich Manufacturing Corp., 121 NLRB 700. The affidavits are required to be produced as an aid to cross- examination. However, this right of a respondent to the pretrial affidavit of a Government witness does not extend to the broad request of the Respondent . Accordingly, we affirm the Trial Examiner's ruling. 2 We do not adopt the fifth paragraph of III B of the Intermediate Report which we find unnecessary to the ultimate findings in the case. LOCAL 1566, INT'L LONGSHOREMEN'S ASSOCIATION 969 to all other work, the employers agree to institute and main- tain a Union Shop as shall comply with Section 8(a) (3) of the National Labor Relations Act or any amendment thereto. The first sentence in the above paragraph provides for prefer- ence in hiring to union members, but purports to defer operation of the preference system until it becomes legal. However the evi- dence shows, as the Trial Examiner found, that the parties have been following a present practice of giving preference in employ- ment to union members, although such preference is unlawful. Thus the inference is warranted that, despite the deferral language in the sentence, the parties never really intended to postpone opera- tion of the preference system. Accordingly, we find that the prefer- ence clause was designed to create present discriminatory conditions of employment, and that by entering into and maintaining the 1954 and 1957 contracts the Respclxleiit Union violated Section 8(b) (2) and (1) (A) of the Act.3 THE REMEDY Having found that the Respondent has violated the Act, we shall order that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. By the unlawful hiring contract provisions and practices the Re- spondent has unlawfully encouraged employees to join the Re- spondent Union in order to obtain employment, thereby coercing those employees to pay union initiation fees and dues. It would not effectuate the policies of the Act to permit the retention of the payments of these union initiation fees and dues,. and all other moneys which have been unlawfully exacted from employees. As part of the remedy, therefore, we shall order the Respondent to refund to the employees of Maritime Ship Cleaning and Mainte- nance Co. the initiation fees, dues, and all other moneys unlawfully exacted from them as a price for their employment .4 This remedy of reimbursement is, we believe, appropriate and necessary to ex- punge the coercive effect of the Respondent's unfair labor practices.-' 8 United Brotherhood of Carpenters and Joiners of America , Local No. 517, AFL (G-il Wyner Construction Co.), 112 NLRB 714, 714-715, enfd. 230 F. 2d 256 (C.A. 1). Moreover, we observe that the language of the quoted paragraph is so obscure that a workingman covered by its provisions could hardly be expected to know when union membership was required and when it was not. The courts have said that a union- security clause should be written in language that an ordinary workingman can readily understand . N.L.R.B. v. E. F. Shuck Construction Co., Inc ., 243 F . 2d 519 (C.A. 9); Red Star Express Lines of Auburn, Inc . v. N.L.R.B., 196 F. 2d 78 (C.A. 2). * The Respondent 's liability for reimbursement shall include the period beginning 6 months prior to the filing and service of the charges herein and shall extend to all such moneys thereafter collected. B See N.L.R.B. v. Broderick Wood Products Company, 261 F. 2d 548 (C.A. 10), enfg. 118 NLRB 38. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the case and pursuant to Section 10(c) .of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 1566, International Longshoremen's Association, its officers, repre- sentatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Giving effect to, . entering into, renewing, maintaining, or -enforcing any agreement, arrangement, understanding or practice with Philadelphia Marine Trade Association, Maritime Ship Clean- ing and Maintenance Co., or any other member employer of Phila- delphia Marine Trade Association, requiring employees or appli- cants for employment to be or become members of, or to obtain clearance or approval from, the Respondent Union as a condition of employment, except as authorized by Section 8(a) (3) of the Act. (b) Causing or attempting to cause Maritime Ship Cleaning and Maintenance Co. to refuse employment to Marvin Gould and Zack Page or any other applicant for employment because he is not a member of, or has not secured clearance or approval from, the Respondent Union, in violation of Section 8(a) (3) of the Act. (c) In any other manner restraining or coercing employees or .applicants for employment of Maritime Ship Cleaning and Main- tenance Co. 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 membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Reimburse all employees of Maritime Ship Cleaning and Maintenance Co. for moneys illegally exacted from them in the manner and to the extent set forth in the section herein entitled "The Remedy." (b) Make whole Marvin Gould and Zack Page for any loss of pay incurred as a result of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Post at its offices in Philadelphia, Pennsylvania, and all other places where notices to members are customarily posted, copies of the notice attached hereto marked "Appendix. 76 Copies of said notice to be furnished by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania) shall, after being duly signed 6In 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." LOCAL 1566, INT'L LONGSHOREMEN'S ASSOCIATION 971 by representatives of the Respondent, be posted immediately upon receipt thereof and maintained for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Mail to the Regional Director for the Fourth Region signed copies of the notice marked "Appendix" for posting by Maritime Ship Cleaning and Maintenance Co., the employer willing, in places where notices to employees and prospective employees are custom- arily posted. (e) Notify the Regional Director for the Fourth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 1566, INTERNATIONAL LONGSHORE- MEN'S ASSOCIATION, AND EMPLOYEES AND APPLICANTS FOR EMPLOY- 1IENT OF MARITIME SHIP CLEANING AND MAINTENANCE CO. Pursuant to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT give effect to, enter into, renew, maintain, or enforce any agreement, arrangement, understanding, or practice with Philadelphia Marine Trade Association, Maritime Ship Cleaning and Maintenance Co., or any other member employer of Philadelphia Marine Trade Association, requiring employees or applicants for employment to become members or to obtain clearance or approval as a condition of employment, except to the extent that the requirement of clearance or approval by a labor organization is lawfully imposed under the conditions stated in Mountain Pacific Chapter of The Associated General Contractors, 119 NLRB 883. WE WILL NOT cause or attempt to cause Maritime Ship Clean- ing and Maintenance Co., its officers, agents, successors, or assigns, to discriminate against employees or applicants for employment because they are not members of, or have not received clearance from, our organization, in violation of Sec- tion 8(a) (3). WAVE WILL NOT in any other manner restrain or coerce employees or applicants for employment of Maritime Ship Cleaning and Maintenance Co. in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act, except to the extent that such rights may be affected by an agreement requiring member- 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship in a labor organization, as a condition of employment, as authorized by Section 8(a) (3) of the Act. WE WILL make Marvin Gould and Zack Page whole for any loss of pay they may have suffered as a result of discrimination against them. WE WILL reimburse the employees of Maritime Ship Cleaning and Maintenance Co. for the moneys illegally exacted from them as a condition of employment. LOCAL 1566, INTERNATIONAL LONG- SHOREMEN'S ASSOCIATION, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Marvin Gould and Zack Page on December 11, 1956, the General Counsel of the Board issued his complaint dated July 30, 1957, against Local 1566, International Longshoremen 's Association , the Respondent herein. The complaint, in sum, alleges that the Respondent violated Section 8(b)(2) and 8(b)(1)(A) of the National Labor Relations Act (61 Stat. 136) by causing. Maritime Ship Cleaning and Maintenance Co., an employer, (herein called Mari- time) to discriminate against employees in violation of Section 8(a)(3) of the Act. More specifically the complaint asserts that the Respondent entered into collec- tive-bargaining contracts with Maritime requiring membership in the Respondent as a condition of employment , although the Respondent was not then in com- pliance with Section 9 (f), (g), and (h) of the Act, as required. The complaint further alleged that since June 12, 1956, the Respondent and Maritime have been parties to an "agreement , practice or arrangement which povides that Maritime ... will give preference for hiring to those persons who are members of the Respond- ent." Finally, it is asserted that since June 12, 1956, the Respondent has caused Maritime to follow the general practice of withholding employment from Gould and Page and other longshoremen not members of the Respondent, until after members of Respondent have been employed, for the reason that Gould, Page, and the other longshoremen were not members of Respondent. In due course the Respondent filed its answer denying the allegation of unfair labor practices. Maritime is not a party to the proceeding. Upon due notice a hearing was held before the Trial Examiner in Philadelphia, Pennsylvania on October 28, 29, and 30, 1957. The General Counsel, the Respond- ent, and Maritime were represented by counsel and participated in the hearing. Briefs were filed by the General Counsel and the Respondent and have been considered.' Upon the basis of the entire record in the case, and from my observation of the witnesses , I make the following: ' The Respondent raises question as to the specificity of the charges and complaint. The Respondent did not, however , at any time request a bill of particulars . It did ask the Regional Director prior to hearing for copies of statements of all witnesses inter- viewed by Board agents during the investigation of the case . This the Regional Director refused. Permission to appeal that refusal was denied by the Board. At the hearing the Respondent was accorded full opportunity to meet all the evidence adduced by the General Counsel . The charges and complaint appear to me adequately informative. LOCAL 1566, INT'L LONGSHOREMEN'S ASSOCIATION FINDINGS 1. THE BUSINESS OF MARITIME 973 Maritime Ship Cleaning and Maintenance Co. is a Pennsylvania corporation engaged in the business of ship cleaning and maintenance in and out of the port of Philadelphia, for some 26 steamship operators engaged in interstate and foreign commerce. This work may be performed in Pennsylvania, New York, Delaware, New Jersey, or Maryland. Maritime's gross sales are in excess of $250,000 annually, approximately 35 percent thereof representing services rendered by Mari- time outside Pennsylvania. It is found that Maritime is engaged in and that its activities affect commerce. II. THE LABOR ORGANIZATION INVOLVED Local 1556, International Longshoremen's Association, is a labor organization admitting to membership employees of Maritime. III. THE UNFAIR LABOR PRACTICES A. The contracts Maritime is a member of the Philadelphia Marine Trade Association, an asso- ciation of employers who engage in various types of service operations connected with the maritime industry in and out of the port of Philadelphia. The Associa- tion negotiates and signs collective-bargaining agreements with Respondent, Re- spondent's parent (International Longshoremen's Association, Independent) and other locals affiliated with the parent, on behalf of Association members, including Maritime. Specifically the Association did so in 1954 and 1957. Thus on March 12, 1954, the Association entered into such a contract with the International and various Locals, among them the Respondent, effective to September 30, 1956. This agreement contained the following union-security clause in section 1(a) thereof: UNION SECURITY: As to any and all work covered hereunder, finally determined by duly constituted public authority not to be subject to any statute forbidding a preferential hiring provision, the employers agree to give a preference to longshoremen who are members of the Union in good standing. As to all other work, the employers agree to institute and maintain a Union Shop as shall comply with Section 8(a)(3) of the National Labor Relations Act or any amendment thereto. On March 18, 1957, the Association executed a new agreement with the Re- spondent effective from October 1, 1956, to September 30, 1959. With insubstantial variations in phraseology, the 1957 agreement, in section 2 thereof, contained the same union-security clause found in the 1954 contract. It is thus seen that both the 1954 and 1957 contracts contained clauses obligating Maritime and other Association employers to maintain a union shop complying with Section 8(a)(3) of the Act with respect to all work subject to statute forbidding preferential hiring, and a preferential shop with respect to all work finally deter- mined not to be so subject. Question is raised at the outset as to the meaning of the phrase, "a union shop as shall comply with Section 8(a)(3)." I interpret that to refer to the degree of union security incorporated in the security clause, and not to the question whether such requirements shall be immediately applicable. In my view the phrase is not to be construed as postponing the operation of the requirement for union member- ship until all statutory requirements for a union shop have been met. A union- security clause may no doubt with propriety be cast in such form as to authorize its application only when conditions necessary to its legality are satisfied. But to do so the contract must make clear that the clause is not operable in the meantime. Since a man's employment may depend upon his compliance, the clause should be clear enough for him to understand it; should not be left so ambiguous to one of ordinary understanding that he will be impelled to seek membership rather than risk the consequences of erroneous interpretation. Here there is no suggestion in the clause itself indicating that it is not immedi- ately applicable. The employee attempting to determine his obligation from read- ing it is left to speculate, at his risk , as to whether all the conditions of legality required by Section 8(a)(3) have been met. 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manifestly a union-security agreement may not comply with Section 8(a)(3), and thus be illegal, for any number of reasons unrelated to the kind or degree of union security it may provide. Thus, the labor organization may not be the representative of the employees; the bargaining unit may be inappropriate; the labor organization may not have received a notice of compliance with Section 9(f), (g), and (h) at the time the agreement was made or within the 12 months preced- ing the agreement; or within a year preceding the effective date of the agreement the Board may have certified that a majority of the employees had voted to rescind the labor organization's authority to make a union-shop agreement. All these, however, are questions that must be deemed concluded by the execution of the agreement itself; unless, at least, the agreement is specifically made inoperable until unfulfilled condition of legality is satisfied. Thus the defense that the Union was not the representative of the employees, or the unit inappropriate, would not make legal a contract purporting to require union membership as a condition of employment, although containing the caveat that the requirement must "comply with Section 8(a)(3)." Similarly where other conditions precedent to the enact- ment of a valid union-security contract are unsatisfied, and there is no clear and specific postponement of the obligation for union membership, a contract contain- ing such defects is not saved by the insertion of hortatory declarations of intent to comply with the law. In the light of these considerations the instant clauses must be construed as a statement, unmodified in any relevant respect, that membership in the Respondent was required as a condition of employment. Whether this was the actual intent of the parties is not material. For employees were coerced and restrained by the apparent effect of the instrument regardless of the parties' secret meaning (Port Chester Electrical Corporation, 97 NLRB 354; Jandel Furs, 100 NLRB 1390; See also Jersey Contracting Corp., 112 NLRB 660; Seaboard Terminal and Refrigera- tion Company, 114 NLRB 1391; County Electric Co., Inc., etc., 116 NLRB 1080) unless the requirement was lawful. Nor is it a defense that persons without union membership were employed by Maritime. As is seen hereinafter, the hiring policy followed at Maritime was to give preference to union members. In any event, lack of enforcement does not nullify or make legal an invalid agreement. We turn then to the question whether any of the conditions necessary to the execution of a union-security contract valid under Section 8(a)(3) were unfulfilled. If any were, the union-security clauses were in that respect illegal. B. Whether the Respondent was in compliance with 9(f), (g), and (h) at all required times One of the conditions to execution of a union-shop agreement valid under Section 8(a)(3) is that "at the time the agreement was made or within the preceding 12 months [the contracting labor organization must have] received from the Board a notice of compliance with Section 9(f), (g), (h)" of the Act. The Respondent here did receive such a notice on October 30, 1953, which was within the 12-month period preceding the making of the March 1954 agreement. It did not, however, receive such a notice at the time the March 1957 agreement was made, or within the 12 months preceding that. The Respondent contends inter alia that it was entitled to receive such a notice, and that such entitlement qualified it to make a union-shop agreement. It will be noted that the proviso quoted specifically conditions eligibility to make a union-shop agreement upon receipt of a notice of compliance from the Board, and not upon the right to receive one. Literally, therefore, the Union was not qualified to make the 1957 agreement. However, whether the statute is to be read so literally need not be, and is not, here determined. For the facts do not estab- lish, in my opinion, that the Union was entitled to receive a notice of compliance. Subsections (f) and (g) of Section 9 require labor organizations subject thereto to file annually with the Secretary of Labor certain financial and other data con- cerning its operations, and to furnish to its members copies of its financial report. Subsection (h) of Section 9 requires each officer of such labor organization to file with the Board an affidavit denying membership or affiliation et cetera with the Communist Party, or belief or membership in or support of any organization that believes in or teaches the forcible, illegal, or unconstitutional overthrow of the United States Government. This data is required to be kept current, otherwise compliance lapses. The Board has enacted rules, consistent with the statute, setting out the specific pro- cedures for establishing compliance. (Section 102.13, Rules and Regulations of the Board.) LOCAL 1566 , INT'L LONGSHOREMEN'S ASSOCIATION 975 In this case the Board's records establish that the Respondent ceased to be in compliance with Section 9(f), (g), and (h) on December 31, 1953. It made no apparent effort to renew its compliance until July 19, 1956. At that time the Respondent submitted certain compliance material. That data did not, however, include a list of the Respondent's offices, and the incombents thereof, as required by the Board's Rules. Such information, of course, is essential to determine whether all officers have filed the non-Communist affidavits requisite under the Act. The material filed in July 1956 was therefore not sufficient to bring the Respondent into compliance, or to entitle it to a certificate of compliance. In January 1957 the Respondent submitted further compliance material. Such material did not include, however, necessary evidence, known as the Department of Labor card, or letter, establishing that the Respondent had filed with the Department of Labor the financial information required by the statute. It was not until August 2, 1957, that such evidence was supplied. The Respondent was then given its certificate of compliance. From the above facts it is clear that the Respondent was not in compliance with Section 9(f), (g), and (h) of the Act at any time between December 31, 1953 and August 2, 1957. The Respondent was therefore not authorized under Section 8 (a)(3) to make a union-security contract on March 18, 1957. The Respondent had, however, received a notice of compliance from the Board within the 12-month period preceding the making of the 1954 agreement. That contract was therefore made within the time permitted by the compliance proviso to Section 8(a)(3). It is consequently found that by incorporating the union-security clause in the 1957 contract with the Marine Trade Association without compliance with Sec- tion 9(f), (g), and (h) of the Act, the Respondent violated Section 8(b)(2) and 8(b)(1)A) of the Act. As to the 1954 contract, however, it is found that there was no such violation. It will therefore be recommended that that allegation of the complaint be dismissed. C. The illegal hiring practice and the withholding of employment As has been seen, the General Counsel further alleges that the Respondent and Maritime have an agreement , practice, or arrangement giving preference in hiring to members of the Respondent, and further, that the Respondent has caused Maritime to follow the general practice of withholding employment from the Charging Parties and other nonmembers of Respondent until after members of Respondent are employed. Hiring at Maintenance in the categories of employment here involved is ef- fected through the shapeup system. Generally on each working day men who desire employment present themselves at Maritime's place of business at certain hours. Hiring foremen then select men from this group for whatever work is to be performed on that day. The foremen themselves are union members. Zack Page and Marvin Gould, the Charging Parties herein, were employed by Maritime at various times pursuant to that procedure. The exact extent of this employment is subject to some dispute, unnecessary to resolve. At all events both Gould and Page had substantial employment in 1956. Page received a port num- ber in 1953 to identify him as a waterfront worker. See footnote 2, infra. The evidence establishes that applicants for employment at the Maritime shapeup fall into three categories: book men, card men, and a third category who have neither books nor cards. The terms refer to union status . Thus, book men are persons who are full-fledged members of the Respondent Union. Card men are persons who are in a probationary status. They are not members of the Union, but are given a card at the beginning of each month, upon the payment of a sum equivalent to union dues. Upon receiving 12 of these cards in consecutive months, and completing 700 hours of work on the waterfront, a card man becomes eligible for union membership. The purpose of these cards is thus stated in the testimony of the Respondent's secretary-treasurer: They are cards which make a man a temporary union man, and it gives that man the opportunity when he goes down to the water front, if they got any work, to get enough experience so that he can be qualified for working. Book men, upon the payment of dues, are given a button, differently colored for each month, for the purpose of identifying them as being in good standing. The button is worn by the individual, generally on his cap. The constitution of the International Longshoremen's Association among miscellaneous regulations governing locals, provides that only regular buttons shall be recognized in the hiring of men. Thus article XXVI, section 22 of the constitution states the following: 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD , No button other than the regularly adopted and recognized ILA working and dress button shall be recognized in the hiring of men for work. Any member violating this rule shall be fined in the sum of $25.00. Provision for preference in employment for union members is also to be found in article XI, section 5 of the International constitution, as follows: 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. Other provisions respecting discipline of members for violation of constitutional requirements is contained in article XVIII, DISCIPLINE: Any member shall be subject to discipline who is found guilty, after notice of and opportunity for hearing upon charges, of violating any provision of this Constitution or a decision of the Executive Council, or of his Local Union, or District Council, or District organization, or dishonesty, misconduct, or conduct detrimental to the welfare of the I.L.A. About mid-November 1956 a strike occurred on the Philadelphia waterfront involving negotiations between the ILA and the Philadelphia Marine Trade Asso- ciation. The strike lasted about 10 days. During the strike the majority of Mari- time's foremen picketed as union representatives. A number of the card men did not picket. Following the termination of the strike, and about December 7 the Respondent's secretary-treasurer refused to issue December cards to some 9 to 12 card men (including Gould and Page) because they had not picketed during the strike. On December 11 the unfair labor practice charges herein were filed. Thereafter the Respondent rescinded its refusal to issue the cards. The record indicates that on January 14, 1957, the Respondent's attorney informed the Board's Regional Office that the Charging Parties could receive their cards by calling at the Respondent's office; and the parties were so informed. However, Gould and Page did not again seek cards, although it seems clear that they would have re- ceived them had they applied. The evidence establishes that at all times material herein the hiring foremen of Maritime followed the practice of preferring book and card men for employment. Thus, the testimony of Gould and Page is that during the periods of their em- ployment, sometimes intermittent, at Maritime,2 the invariable hiring practice followed by Maritime's hiring foremen was as follows: The foremen would first ask the assembled applicants at the shape for book men. From those who so identified themselves the foremen then made selections and assignments to various available jobs, giving each selectee an appropriate work ticket. If, after the book men had been assigned, there were further jobs available, the foremen asked for card men. From those the foremen then made selections as in the case of the book men. If there were still jobs available the foremen chose from among the remaining applicants for employment. Within each group the foremen's selections are apparently made on the basis of the capabilities of the men and the needs of the job. If at the end of the workday the job is still un- finished, the employee assigned may return to it the next day without reshaping. However, if he is a noncard man the employee in such a situation is subject to displacement by a book man. Although Maritime's superintendent and three of its hiring foremen, all members of the Union, testified, none denied the testimony of Gould and Page as to the hiring practice just described. The omission to deny that testimony, which Gould and Page reiterated several times on the witness stand, is not to be attributed to inadvertence. I construe the failure to deny it as an admission of its truth. In such a context the testimony of the foremen to the effect that they hired on the basis of experience, or personal evaluation of merit, a fact no doubt true within each classification, does not meet the issue. It is merely an assertion that within the particular group involved the foremen selected on a nondiscriminatory basis. It is not a denial that the men were classified and assigned hiring priority on a discriminatory basis. It may well be true, as is asserted, that in occasional instances union men are not hired because of a delinquency,3 or nonunion men hired for certain jobs before 2 According to waterfront records, Gould's employment by Maritime dates back to 1955, Page's to 1952. Page's last employment by Maritime was on February 6, 1957; Gould's on May 21, 1957. s Thus, Foreman Thesing testified that on one day he did not hire two union men because he had found them sleeping on the job on the day before. LOCAL 1566, INT'L LONGSHOREMEN'S ASSOCIATION 977 union men because the union men are being reserved for other jobs. But those are exceptions to the general practice. I credit the testimony of Gould and Page concerning the hiring procedure followed by the foremen of Maintenance. Since 12 consecutive probationary cards and 700 hours of work on the water- front are a prerequisite for union membership, it is no doubt true that such mem- bership constitutes evidence of waterfront experience. However, the circumstances make it quite evident that the foremen here do not hire from such considerations. For their testimony is that they are acquainted with all regulars on the waterfront, and the Respondent asserts that these constitute so relatively stable a pool of workers as to make them a virtually permanent force. The testimony as to make them a virtually permanent force. The testimony is no doubt true, and is found so, but it does not help the Respondent. For the hiring procedure followed is consistent only with the conclusion that hiring preference is given to union mem- bers because of their union membership, and not because of the foremen's knowl- edge of or conclusion as to the individual's competence. For if competence or experience were the sole criterion, men would be selected by name or by sight, and not grouped according to their affiliation with the Respondent. Only if the shapers were strangers could their division into groups reflecting union membership have any possible relation to their probable experience or competence. Finally, whatever value can be assigned the possession of a union book as evidence of competence and experience, no such presumption or conclusion can be drawn from the possession of a union card. Maritime's superintendent, a union member, testified that he does not regard a card man as an experienced man. Consequently no legitimate considerations are apparent in the preference for card men as a class over noncard men as a class. It is consequently found that the foremen of Maintenance give hiring preference to members of the Respondent union, and card men thereof, on the basis of their being such members and card men, and not because of any presumed greater experience or competence. Such action constitutes prohibited discrimination in employment. The next question is the Respondent's responsibility therefor. D. Union responsibility for the hiring practices The Respondent asserts that in any event it is not liable for the hiring practices of the foremen. The Respondent points out that it maintains no hiring hall; it says that it did not "supervise or participate in any respect in the employment of men." Each of the foremen who testified averred that he hired according to his own discretion; that he had no instructions from Maritime or the Respondent as to who or how to hire; that there was no arrangement with the Union in connec- tion with hiring; and that no foreman was ever reprimanded or disciplined by the Respondent for giving work to nonunion men, though complaints were made by union men. These assertions constitute no defense, either because they do not fully meet the issues, or because, as I view the evidence, they are not factually accurate. In my opinion the evidence here substantiates the General Counsel's allegation that the Respondent has caused Maritime to withhold employment from non- members of the Respondent until after members of the Respondent have been hired. It is my further opinion that the circumstances establish an agreement, practice, or arrangement between the Respondent and Maritime for preference in hiring by Maritime for members of the Respondent. It is my further judgment that this withholding and preference are based solely on the fact of union mem- bership or nonmembership. I reach these conclusions for the following reasons: It has been seen that the constitution of the International Longshoremen's Asso- ciation provides that only the regular ILA button "shall be recognized in the hiring of men for work," and further that "any member violating this rule shall be fined in the sum of $25.00." This provision of the International constitution establishes a union policy for, and binding upon, the local organizations,4 of securing prefer- ence in hiring for union members. An obligation to enforce this requirement is imposed upon all union members, under penalty of fine. The foremen of Mainte- nance are union members subject to this obligation. The foremen actually follow 4 The section, 1 of 28 sections in article XXVI. The title of the article is "Miscella- neous Regulations for Locals." 505395-59-vol. 12 2-6 3 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a policy of preferring union members for employment , and consequently discrimi- nate against applicants for employment on the basis of union membership. This preferment is in pursuance of the union policy. The Respondent thereby causes Maintenance to discriminate against employees contrary to the provisions of Sec- tion 8 (a)(3). When the foremen of Maintenance , who have authority to deter- mine hiring practice for Maintenance , adopt a course of action executing and implementing the Respondent 's preference policy, that action constitutes a practice, arrangement , or agreement between the Respondent and Maintenance . The Board recently said in the case of Grove, Shepherd, et al., 109 NLRB 209: When the Respondent employers entrusted their hiring to foremen who were members of the Union and bound by its laws, they in effect agreed with the Union, through the foremen, who were agents of the Employers and the Union, to operate under a closed-shop arrangement, which is prohibited under the Act. See also Millwright Local Union No. 2484, etc . (W. S. Bellows Construction Cor- poration), 114 NLRB 541 , 549-50; Enterprise Industrial Piping Company, 117 NLRB 995. The Respondent seeks to distinguish those cases from the instant situation . However, I find them indistinguishable in any substantial respect insofar as the issue of union responsibility is concerned. This is not to say that the mere enactment of a policy of union preference in hiring by an international union, or even by a local itself , ipso facto imposes upon the local legal responsibility of discriminatory hiring by employers dealing with the local . It is merely to hold that where the circumstances disclose the estab- lishment or imposition of a discriminatory hiring policy by or for a local union, that union may be held responsible where discrimination is a proximate and fore- seeable consequence of the operation of the policy , and discrimination in fact results. This is not to impose upon the local responsibility for programs or conduct over which it has no control . It is merely to hold it accountable for its own action . If the local wishes to avoid liability in such situations there are effective methods by which it may disavow the offending policy. The Respondent offers a number of other defenses. Thus, the Respondent says that article XXVI, section 22 is ambiguous, does not refer to foremen, and does not require action by union members. It is not stated, however, what interpretation of the section is possible other than one requiring union members to prefer holders of union buttons in hiring men for work. It is immaterial that the section does not refer to foremen by name. It is enough that it embraces all who may be union members . That action is required I think clear from the language of the section . That the Respondent maintained no hiring hall is not controlling , since the issue is whether the Respondent caused Maritime to discriminate in employment . Since it did, the Respondent was a participant in the hiring of men. As to the failure of the Respondent to reprimand or discipline foremen over the hiring of nonunion men, it has been seen that occasionally union men are not hired, or are subordinated , for disciplinary reasons . When nonunion men are hired before union men it may also be because the latter are being saved for other jobs . Such complaints as may have been made presumably involved such situations , or perhaps dissatisfaction with the nature of the job assigned. The Respondent also asserts that the foremen were not aware of the existence of section 22 of the constitution and consequently could not have been influenced by it in hiring . However, only one of the five foremen of Maintenance so testi- fied. There is no evidence that the other four foremen were not aware of and did not observe the provision . The presumption is that they were. In any event in the circumstances here I think inherently implausible, and I cannot credit, the testimony averring lack of knowledge of the union policy of preferring union men in employment . It has been seen that the foremen actually followed such a policy. The Respondent also introduced testimony by a vice president of the Interna- tional to the effect that the Respondent had been orally advised that section 22 was not enforced , was not considered to be valid , and not a binding provision on the Respondent since the Jarka case .5 The testimony is also that the local unions of the International have authority to ignore any provision of the constitution which they deem in violation of the law. One official of the Respondent even testified that the Respondent did not, and so far as he could remember had never, operated under the constitution . I cannot sJarka Corporation of Philadelphia, 94 NLRB 320, enfd . in part 198 F. 2d 618 (C.A. 3). That case also involved the validity of hiring practices on the Philadelphia waterfront . Respondents therein were the employer ( Jarka ), and Local 1291 of the ILA, a sister local of the present Respondent. LOCAL 1566, INT'L LONGSHOREMEN' S ASSOCIATION 979 credit such testimony . In the first place, there is no evidence that section 22 has ever been formally suspended , rescinded, or modified. Secondly, I deem it not inherently plausible that the International would permit or grant blanket authority to the locals to determine for themselves whether to observe or ignore provisions of the constitution . In the third place, the International constitution contains specific provision for dealing with the problem raised by possibly illegal provisions, and action by the locals is not one of the procedures provided . Thus article XXVII, section 3 of the constitution grants authority to the executive council of the International Union to change or amend provisions in the constitution which are in conflict with the National Labor Relations Act. But even this authority is circumscribed ; it permits the change to be effective only until the next convention of the International . So far as appears , no action has been taken at any con- vention or by the executive council modifying section 22 of article XXVI. Finally, article XII, section 6 of the International constitution authorizes local unions to adopt bylaws "not inconsistent with the Constitution ." In the event of conflict between the two, the Local 's bylaws are declared by article XII to be "null and void." In the teeth of such provisions I think patently incredible the supposition that a local of the ILA is in effect authorized by the International to ignore the International constitution if it is so minded. Upon the basis of the foregoing it is found that since June 12, 1956, the Re- spondent has caused Maritime Ship Cleaning and Maintenance Co. to withhold employment from Marvin Gould, Zack Page, and other applicants for employment who are not members of the Respondent union , until after members of the Re- spondent had been employed, for the reason that Gould, Page, and the others were not members of the Respondent . It is further found that since June 12, 1956, Respondent and Maritime have been parties to an agreement , practice or ar- rangement by which Maritime gives preference in hiring to members of the Respondent. By these actions the Respondent caused Maritime to discriminate against employees within the meaning of Section 8 (a)(3) of the Act, and restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. The Respondent thereby violated Section 8 (b)(2) and 8(b)(1)(A) of the Act. E. Discrimination against Gould and Page It is seen from the foregoing that the Respondent has caused Gould and Page to be subjected to discriminatory conditions of employment . Such action is in violation of Section 8(b)(2) and 8 (b)(1)(A) of the Act, regardless of whether it actually resulted in loss of wages by Gould and Page. For nonunion men were entitled to be considered for employment without reference to their union affilia- tion. They were not so considered , and their employment in fact was deferred because of their nonmembership in the Respondent . Such a policy or practice is discriminatory and in conflict with the Act. The Respondent contends , however, that the evidence establishes that Gould and Page received employment each time they shaped after the strike , and there- fore (the Respondent argues) they were not discriminated against. However, as I have indicated, the securing of employment would not negate the fact of dis- criminatory hiring. All it would establish is that the discrimination did not result in loss of wages. Whether and to what extent wages were lost by Gould and Page because of the discrimination are remedy questions to be ascertained in com- pliance proceedings , if necessary . It may be that the parties will be able in - formally to reach agreement thereon. If not , ancillary procedure is available for determining the question when it becomes material. However, I find that there were occasions after the strike on which Gould and Page shaped and were not hired . The discriminatory hiring policy was then being followed. Under such circumstances the General Counsel has at least sustained the burden of proving a prima facie case of loss of wages due to discrimination. If the failure to secure employment on those occasions was not the consequence of the discriminatory policy, it was the Respondent 's responsibility to establish that fact . And this it has not done. If there is quandary, the Respondent, having produced it, has the burden of disentangling the consequences for which it is re- sponsible from those for which it is not. N.L.R .B. v. Stackpole Carbon Company, 105 F. 2d 167, 176 (C.A. 3); N.L.R.B. v. Remington Rand, Inc., 94 F. 2d 862, 872 (C.A. 2). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of Maritime described in section I, above, have a close, intimate , and substantial relation to trade, traffic , and commerce among 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. It will be recommended that, in accordance with the Board's usual policies, the Respondent make whole Gould and Page for any loss of pay suffered as a result of the discrimination against them by payment to each of them of a sum of money equal to the amount which, absent the unfair labor practices, he would normally have earned as wages from and after June 12, 1956, less net earnings. The General Counsel asks that the remedy here include provision for the reim- bursement of all fees and dues paid by employees as a result of the illegal union- security clause, citing as authority therefor the case of J. S., Sr., Brown E.F.-Olds Plumbing & Heating Corporation, 115 NLRB 594. 1 find that case inapplicable here. The contract there involved was a closed- shop agreement. The instant con- tract is not closed shop. As I interpret the decisions, Board policy in the type of situation here presented is to order dues or fee reimbursement only where there is evidence of coercive exaction, such as closed shop, involuntary checkoff, or other coercive tactic. Brown-Olds, supra, Bowman Transportation, Inc., 112 NLRB 387. Cf. Hibbard Dowel, 113 NLRB 28. See also Braswell Motor Freight Lines, 213 F. 2d 208 (C.A. 5); Shedd-Brown Mfg. Co., 213 F. 2d 163 (C.A. 7); Local 404, International Brotherhood of Teamsters, etc. (Brown Equipment & Manufacturing Co.) 100 NLRB 801, 205 F. 2d 99 (C.A. 1); and cases cited in Brown-Olds, supra. Dues and fees reimbursement will therefore not be recommended. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 1566, International Longshoremen's Association, is a labor organization within the meaning of Section 2(5) of the Act. 2. Maritime Ship Cleaning and Maintenance Co. is engaged in commerce within 'the meaning of Section 2(6) and (7) of the Act. 3. By causing Maritime Ship Cleaning and Maintenance Co. to discriminate against applicants for employment in violation of Section 8(a)(3) of the Act, and by contracting with the Philadelphia Marine Trade Association on March 18, 1957, for a union-security clause requiring union membership as a condition of em- ployment, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 4. By restraining and coercing employees and applicants for employment in the exercise of rights guaranteed in Section 7 of the Act the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not engaged in unfair labor practices by entering into the March 1954 agreement with the Philadelphia Marine Trade Association re- quiring union membership as a condition of employment. [Recommendations omitted from publication.] Local 176, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and its business agent, Albert A. Fournier and Dimeo Construction Company. Case No. 1-CB-399. Janu- ary 19, 1959 DECISION AND ORDER On February 12, 1958, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain 122 NLRB No. 119.