Local 1426, Int'l Longshoremen's Association, Etc.

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) We believe that if you were to let the United Automobile Workers Union come into your plant that it would not do any good and that it might do serious harm to you and to your company. (3) It is not necessary and it will never be necessary for any person to belong to the UAW or to sign cards in the UAW or any other union in order to get a job with or to work for Murray Ohio. (4) Any employee who might sign a card or belong to the UAW will not, as a result of that, get any advantage or privileged treatment over anyone who refuses to sign a card or who does not belong to the Union. (5) Anyone who has been interfered with in the plant or has been threatened should let the Company know and we will take appropriate steps to see that this sort of conduct is stopped. (6) No employee will be allowed to carry on union organizing activities in the plant during working hours. Anybody who does so and thereby neglects his own work or interferes with the work of others will be subject to discharge. The same law which allows the United Automobile Workers Union people to try to sell you on turning your rights over to them , this law gives you an equal right to refuse to have anything to do with them. This same law also allows you, if you like, to attempt to persuade others not to have anything to do with these UAW people. Anyone who tells you anything contrary to this is not telling you the truth. THE MURRAY OHIO MANUFACTURING COMPANY (S) Bill Hannon BILL HANNON Executive Vice President Local 1426, International Longshoremen's Association, AFL- CIO and Fred Brown and Heide and Company, Inc. and Wilmington Shipping Company, Parties to the Contract. Case No. 11-CB-90. July 20, 1960 DECISION AND ORDER On March 14, 1960, Trial Examiner Henry S. Sahm issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Union had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondent Union filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following addition. We find, in agreement with the Trial Examiner, and for the reasons given in the Intermediate Report, that the Respondent violated Sec- 128 NLRB No. 30. LOCAL 1426, INT'L LONGSHOREMEN'S ASSOCIATION, ETC. 199 tion 8(b) (2) and (1) (A) of the Act by its maintenance and enforce- ment of its unlawful exclusive referral arrangement with Heide and Company, Inc., and Wilmington Shipping Company. In finding that there was such an arrangement, we note that the written contract between the Respondent and these Companies specifically provided for the referral of employees "in accordance with separate agreement." In our view, the referral practices employed here clearly evidence the existence of an arrangement which is in fact the "separate agreement" provided for in the written contract. ORDER Upon the entire record in this 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 1426, In- ternational Longshoremen's Association, AFL-CIO, its representa- tives, agents, officers, successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining, performing, giving effect to, or enforcing any arrangement, agreement, or understanding, oral or written, with any employer over whom the Board would assert jurisdiction, which re- quires membership in a labor organization as a condition of employ- ment or which accords preference in employment to members of a labor organization, except under the standards specified in Mountain Pacific Chapter of the Associated General Contractors, Inc., et al., 119 NLRB 883. (b) In any like or related manner restraining or coercing employees or prospective employees of Heide and Company, Inc., and Wilming- ton Shipping Company, its successors or assigns, or any other em- ployer over whom the Board would assert jurisdiction, in the exercise of their right to engage in or to refrain from engaging in any or all of the concerted activities listed in Section 7 of the Act except to the extent that such right may be affected by the proviso to Section 8(b) (1) (A), or by an agreement requiring membership in the Re- spondent Union as a condition of employment, as authorized in Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Reimburse all employees of Heide and Company, Inc., and Wilmington Shipping Company for any dues and/or assessments or moneys unlawfully collected from them as a result of the discrimina- tory referral and hiring arrangement with the aforesaid Companies : Providing, however, That the Order shall not be construed as requir- ing reimbursement for any such moneys collected more than 6 months prior to the filing and service of the charges herein. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its offices and meeting halls, including all places where notices Ito members, prospective members, employees , or prospective employees are customarily posted, copies of the notice attached hereto, marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by the Respondent Union's representative, be posted immedi- ately upon receipt thereof, and maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent Union to insure that said notice shall not be altered, defaced, or covered by any other material. (c) Mail to the Regional Director for the Eleventh Region copies of the notice attached hereto and marked "Appendix" for posting by Heide and Company, Inc., and Wilmington Shipping Company, if willing, for 60 days at its offices and other places within the jurisdic- tional area of the Respondent Union, in all places where notices are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by the Respondent Union's representative, be forthwith returned to the Regional Director for such posting. (d) Notify the Regional Director for the Eleventh Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 1 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the iN ords "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 1426 AND ALL APPLICANTS For, EMPLOYMENT Pursuant to a Decision and Order of the National Labor Relations. Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that; WE WILL NOT enter into, perform, maintain, or otherwise give effect to any agreement or arrangement with Heide and Com- pany, Inc., and Wilmington Shipping Company, or any other employer over whom the National Labor Relations Board may assert jurisdiction, which requires membership in our organiza- tion as a condition of employment, except as authorized by the proviso to Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT enter into, perform, maintain, or otherwise give effect to any agreement or arrangement with any of the above- named employers, or any other employer over whom the National Labor Relations Board may assert jurisdiction, which requires LOCAL 1426, INT'L LONGSHOREIMEN'S ASSOCIATION, ETC. 201 that the employer hire its employees through us exclusively unless that agreement or arrangement explicitly provides that : (1) Selection of applicants for referral to jobs shall be on a non- ,discriminatory basis and shall not be based on, or in any way affected by, union membership, bylaws, rules, regulations, consti- tutional provisions, or any other aspect or obligation of union membership, policies, or requirements; (2) the employer retains the right to reject any job applicant which we may refer; and (3) all parties to the agreement or arrangement post in conspicu- ous places where notices to members and job applicants are cus- tomarily posted, all provisions relating to the functioning of the hiring arrangement, including these provisions. NE WILL NOT cause or attempt to cause the above-named employers, or any other employer over whom the National Labor Relations Board may assert jurisdiction, to discriminate against employees or applicants for employment in violation of Section 8(a) (3) of the Act. IVE WILL NOT in any like or related manner restrain or coerce 'employees of the above-named employers, or any other employer over whom the National Labor Relations Board may assert jurisdiction, in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act, except in a manner per- mitted by Section 8(a) (3) of the Act, as modified by the Labor- Management Report and Disclosure Act of 1959. EVE WILL reimburse all employees of the above-named em- ployers, all initiation fees, dues, assessments, and other moneys which we have collected pursuant to our unlawful hiring arrange- ment with these employers, beginning with all such initiation fees, dues, assessments, and other moneys collected 6 months prior to January 28, 1959. LOCAL 1426, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, 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 STATEMENT OF THE CASE This case was heard in Wilmington, North Carolina, on October 21, 1959, on complaint of the General Counsel and the answer of the Respondent . All parties were represented at the hearing and accorded full participation. Upon the entire record in this case, including the excellent brief filed by Respond- ent's able attorneys, the Trial Examiner makes the following: 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT' It is conceded and found that Heide and Company, Inc., is a North Carolina corporation engaged in the business of acting as steamship agents and in furnishing stevedoring services at the port of Wilmington, North Carolina, to shipping com- panies engaged in operating vessels in interstate and foreign commerce. During the year 1958, which period is representative of all times material herein, Heide fur- nished stevedoring services valued in excess of $100,000 to companies for handling cargo in interstate and foreign commerce It is conceded and found that Wilmington Shipping Company is a North Carolina corporation, engaged in the business of acting as steamship agents and in furnishing stevedoring services at the port of Wilmington, North Carolina, to shipping com- panies engaged in operating vessels in interstate and foreign commerce. During the year 1958, which period is representative of all times material herein, Wilming- ton Shipping Company furnished stevedoring services valued in excess of $100,000 to companies for handling cargo in interstate and foreign commerce. It is found, therefore, that Heide and Company, Inc., and Wilmington Shipping Company are engaged in commerce within the meaning of the National Labor Rela- tions Act (61 Stat. 136, as amended), herein called the Act, and that both of these companies are subject to the jurisdiction of the National Labor Relations Board, hereinafter referred to as the Board. It is conceded and found that .the Respondent Union International Longshoremen's Association, AFL-CIO,2 also referred to herein as "I.L.A.," is a labor organization within the meaning of Section 2(5) of the Act. Issues and Contentions On September 29, 1956, Respondent Union and Heide and Wilmington Shipping, the companies herein, which are engaged in furnishing stevedoring services, entered into a collective-bargaining agreement covering the period beginning October 1, 1956, and ending September 30, 1959. The contract provides that members of the Respondent Union shall be given employment by Heide and Wilmington Shipping and that Heide and Wilmington shall order employees "in accordance with separate agreement." There is no separate written agreement, but the parties have orally agreed to and are using the hiring practices described in later sections of this decision. The General Co'insel contends that the Respondent Union has violated Section 8 (b) (2) and (1) (A) of the Act 3 because in practice the referral or hiring system i The incorrect references in the transcript that certain witnesses were called by "the Company" are hereby corrected to show that these witnesses were called by the Respondent. 2 The International Longshoremen 's Association having become reaffiliated with the AFL-CIO, since the inception of this proceeding , the identification of this labor organiza- tion is hereby amended 3 The relevant provisions of the National Labor Relations Act, as amended ( 61 Stat 136, 65 Stat. 601 , 72 Stat. 945, 29 U S C., Sees. 151, et seq ), are as follows : RIGHTS OF EMPLOYEES SEC. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may he affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in section 8(a) (3) UNFAIR LABOR PRACTICES SEc. 8 (a) It shall be an unfair labor practice for an employer- ► * w + t * s (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization . . to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employ- ment or the effective date of such agreement, whichever is the later, s x s * s s a (b) It shall be an unfair labor practice for a labor organization or its agent- (1) to restrain or coerce (A) employees in the exercise of the rights guar- anteed in section 7: Provided, That this paragraph shall not Impair the right LOCAL 1426, INT'L LONGSHOREMEN'S ASSOCIATION, ETC. 203 has resulted in the giving of preference in employment to union members first and that nonunion men are only hired when there are not a sufficient number of union men to fill the available jobs. Moreover, alleges the General Counsel, the I.L.A. constitution contains several provisions , set out below, which implement this alleged illegal referral or hiring system. Article XI, section 5 of the constitution provides: 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 mem- bers of the other Locals in the performance of such extra work. Article XXI, section 1 provides: No collective bargaining agreement shall be entered into by a Local Union with an employer which is in conflict with the provisions of this Constitution. Article XXVI, section 22 provides: No button other than the regularly adopted and recognized I L.A. 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. This section is to be con- strued in conformity with law and not be applied so as to violate any law.4 It was stipulated , also, that Respondent's constitution and bylaws provide that the Respondent's president shall enforce the provisions of the International 's constitution and the bylaws of the Local Union Finally, contends the General Counsel, the above-referred to collective -bargaining agreement is per se illegal because it fails to incorporate into it the standards set out in the Mountain Pacific case 5 which provides that specific contractual safeguards against improper discrimination must be included in any collective -bargaining agree- ment creating an exclusive hiring hall arrangement. The Respondent Union , on the other hand, denies it accorded its members prefer- ence in employment, claiming that it refers nonunion , as well as union, men to the shipping companies , and in corroboration of this contention it refers to paragraph 14(a) of the agreement between it and the shipping companies which provides as follows: It is understood and agreed that members of Local No. 1426 shall be given employment, if they are available and they can satisfactorily qualify as to physi- cal fitness and experience : Provided, however, That this shall not make it a condition of employment of any individual or continuance of such employment that such individual be or remain a member of a labor organization . The em- ployer is to designate the number of men to be employed and reserves the right to hire and discharge . The employer also has the right to shift men from dock to ship and vice versa without limitation. The Respondent acknowledges that the Mountain Pacific criteria are not incorpo- rated into the above-mentioned agreement , but maintains that this omission does not render the agreement illegal per se. This omission, argues Respondent , is merely evidence of illegality and that it is still necessary in order for the General Counsel to make out a prima facie case to show that in actual practice the Union unlawfully discriminated in supplying the two shipping Companies with personnel. The Referral System Conditions in the maritime industry , particularly in the loading and unloading of ships, often make it needful that there be some place or means through which steve- dores, also called longshoremen , can be recruited, frequently on short notice. Re- of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein ; . . (2) to cause or attempt to cause an employer to discriminate against an em- ployee in violation of subsection ( a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retain- ing membership ; . . . 'Although the record is silent, it is the Trial Examiner 's understanding that these buttons are issued upon payment to the Union of the month's dues and are used to identify the wearer as a member of the Union in good standing. 5119 NLRB 883. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crusting arrangements of this kind made between the shipping company and the union are called a referral system . These referral systems can perform their useful and permissible function of providing an efficient and fair method for the recruit- ment of personnel without having a discriminatory or coercive effect on the em- ployees who must utilize hiring halls in order to find employment . This may be accomplished , however, only where employees need not fear that their success in being referred to jobs is dependent upon compliance with the membership rules of the union which operates the hiring hall. In the port of Wilmington, North Carolina, ships are loaded and unloaded by 14 "gangs," comprising 15 to 20 men , all members of the Respondent Union (except as hereinafter indicated ), who work as a unit or team and which include winch- men, hatch tenders, and hold or hatch men . Each gang is bossed by a "header" who is appointed by 6 and is a member of the Respondent Union.7 The header selects the members of his gang.8 When a ship is to be loaded or unloaded , the shipping company telephones the business agent at the union hall specifying the number of gangs that will be needed to work the ship, and at what hour. The business agent (and not the shipping com- pany), then selects the headers of the required number of gangs, who are in charge of, and have authority to hire, the members of their gangs . The business agent then telephones each header notifying him of his assignment , and posts on a bulletin board which is located in the union hall the names of the headers whose crews are to be engaged . Opposite the headers ' names, the business agent also writes the name of the shipping company requesting the men , the number of men requested, the name and location of the ship , and the time that loading or unloading is sched- uled to begin . This information is placed on the union hall bulletin board in order that the personnel , who comprise these gangs and who watch this bulletin board, will know where and when to report. The men then report at dockside to their header and proceed to service the ship The testimony shows and it is so found 9 that the personnel of these 14 gangs, which comprise the total stevedoring work force in the port of Wilmington, do not change but remain the same, subject , of course, to those regular members of the various gangs who are unable to work because of sickness or leaving their jobs for any of many possible reasons . These rank-and-file members of these various gangs make it a daily practice to go to the union hall to ascertain if the name of the header whose gang they are a regular member of is on the bulletin board. If it is, they. then proceed at the time indicated to the pier location specified on the bulletin board where they meet their header . The regular members of his gang "bunch up together" around their header for selection by their header to fill the available jobs, which is referred to as a shapeup . Standing on the fringe of this shapeup are union members of other gangs not scheduled to work that day and some nonunion men who congregate along the waterfront in the hope that some of the regular members of the gang "shaping up" may not report for work that day and that the header may pick them to fill in, provided also, that there may not be a sufficient number of union men, not regular members of gangs scheduled to work that day, to fill the available vacancies At these shapeups , the header then calls the names of his regulars to see which of them have reported for work. If there should be any absentees, he then proceeds to select first , union members not regulars of his gang to fill in for those of his regulars who did not show up at the shapeup , and in the event that there are not enough union men , not members of his gang, to man the detail, which is a rare occurrence ,1° the header will then, as a last resort, select 8In some few instances , where the header who has been selected by the Union's busuness agent is found later to be unsatisfactory by the shipping company, the company may request his removal. If charges are then preferred against the header , he is tried in accordance with the grievance procedures provided for under the terms of the collective- bargaining agreement If it should be found that "good cause" exists for the company's complaint the header is relieved of his duties See section 14(b) of the contract, General Counsel 's Exhibit No 2 7 Many of the headers are also officers of the Respondent Union 8 See Carpenters District Council of Detroit , et al (W J C Kaufmann Company), 125 NLRB 546 9 This is based on the credited testimony of Andrew Ashe , John D. Organ , James Luther Johnson, John Allen , Walter McNeil, and David Ellerhy "The conclusion that this occurs rarely is based on the credited testimony of David Ellerby, who is not a member of the Respondent Union , that he had obtained approxi- mately 30 jobs over a period of 6 years LOCAL 1426, INT'L LONGSHOREMEN'S ASSOCIATION, ETC. 205 nonunion men, provided there are remaining jobs after the supply of union men has been exhausted. Discussion and Conclusions In the Mountain Pacific case,l' the Board held that unions and employers can agree to operate under exclusive hiring arrangements provided they set forth in their contract certain safeguards or criteria to be followed by the union in per- forming its function as hiring agent and which will constitute notice to applicants for employment that the union does not have unilateral control of the employment >lelationship The Board listed the following as among the safeguards against im- proper discrimination over the recruitment and referral of employees to be included in the agreement: (1) Selection of applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be based on, or in any way affected by, union membership, bylaws, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies, or requirements. (2) The employer retains the right to reject any job applicant referred by the union. (3) The parties to the agreement post in places where notices to employees and applicants for employment are customarily posted, all provisions relating to the functioning of the hiring arrangement, including the safeguards that we deem essential to the legality of an exclusive hiring agreement. The Board, in its Mountain Pacific decision, held that a collective-bargaining agreement having a contract clause that grants a union exclusive control of the referral system without including in it the above three safeguards against union favoritism in the exercise of that control, is illegal in itself, apart from whether the referral arrangement in its operation results in unlawful discrimination to non- members of the contracting union. Such unilateral control, without these three provisions in the contract, said the Board, was noticed "to the world at large that the Union is arbitrary master and is contractually guaranteed to remain so," 12 as no criteria or methods are specified by which referrals are to be made by the union. This, concluded the Board, is a violation of the Act's provisions against exerting pressure upon job applicants to comply with union obligations such as membership in a union being made a prerequisite to obtaining a job referral under an exclusive hiring hall contract. In practical terms this means that whether job applicants are referred to jobs depends solely on the union's disposition toward them as the union is "free to pick and choose on any basis it sees fit " 13 The United States Court of Appeals for the Ninth Circuit, however, refused en- forcement of the Board's Mountain Pacific decision and remanded the case for reexamination by the Board of its holding that a collective-bargaining agreement which does not include these three safeguards is illegal per se.14 According to the court, the absence of specific contractual safeguards against hiring preference for union members, regarded by the Board as establishing per se illegality, may be treated as no more than evidence of an intent to discriminate illegally. The court's reasoning is that the presence or absence of specific contractual safeguards has no direct relationship to the existence of a violation. The inclusion of such clauses does not mean , says the court, that the parties will not practice discrimination, and their absence does not mean that the parties do not intend to comply with the law. Still, holds the court, there is no reason why the Board, drawing upon its expertise, may not treat the absence of such provisions as evidence of an intent to violate the law. In the court's view, the absence of these three safeguards must be treated not as a question of law, to be determined by the provisions of the contract alone, but as a question of fact, to be determined by evidence as to either the intent of the parties or the operation or effect of the contract. The court concludes by stating that while this approach cannot be upheld in the instant case the Board can, however, legally give weight to this particular item of evidence, but the rule must operate prospectively. However, where there is disagreement between the views of the Board and the courts, the Trial Examiner is bound by Board precedent until such time as the Supreme Court resolves the conflict involving a question on which there is diversity u 119 NLRB 883, 893. Id, at p 896. Id., at 1). 894 14 N L R.B v. Mountain Pacific Chapter of Associated General Contractors, Inc , et at , 270 F. 2d 425 (CA. 9). 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of opinion. 15 Therefore, upon the controlling basis of stare decisis, it is found that Local 1426, International Longshoreman 's Association, AFL-CIO, has violated Section 8 ( b)(2) and ( 1) (A) of the Act because the collective -bargaining agreement between the Respondent Union and Heide and Wilmington Shipping companies does not include the three safeguards set out in the Mountain Pacific case.io Nevertheless, entirely apart from the Board's holding in Mountain Pacific that a contract providing for an exclusive referral system is rendered illegal per se by the absence of these safeguards , it is found, as hereinafter explicated , that the Respond- ent Union's referral system, in the case at bar, in its actual operation, discriminated in favor of its members by according them preferential referral and hiring rights. The headers, all of whom are union members , and, in many instances , officers of the Respondent Union, gave preference in selection as to who shall comprise their respective gangs, to union members in accordance with the Union 's constitu- tion and bylaws .17 The mechanics of selecting the stevedores at the shapeup was geared to assure that Respondent's union members would have first call on avail- able jobs. Up until June 18, 1959, there was a sign posted at the entrance to Respondent's union hall reading "MEMBERS ONLY " As the only means by which applicants for stevedore jobs could determine what jobs were available was by going to the union hall where the information necessary to apply for a job was written on the bulletin board,18 it follows that the barring of nonmembers from the hall was prima facie discriminatory, as it indicated clearly that union membership was a prerequisite to job referral . 19 However, a job applicant, if he attempted to join the Union, would encounter the frustrating experience of learning that his application would not even be considered unless he was fortunate enough to have a union member sponsor him. The testimony of James Arthur Mitchell , a member of the Respondent Union, that simultaneously with becoming a member of the Union he went to work as a stevedore, is believed to be an unmistakable indication that union members not only were accorded preference , but union membership was a prerequisite to employment. Corroborative of this conclusion is his testimony that Leonard , president and business agent of the Respondent, announced at a union meeting 5 or 6 months before the hearing in this proceeding that ". . . union men have preference " at the shapeups 20 Moreover, the record is replete with testimony that the "gangs " were composed ex- clusively of union members unless there were not enough available to fill the jobs.21 Then, too, there was a mandate imposed upon the business agent and headers to enforce the provisions of the International's constitution, and the Local's bylaws, which provide in article XI , section 5 of the constitution that preference in employ- ment opportunities should be given to members of the Respondent Local over mem- bers of other locals, let alone applicants who are not even union members. This provision, together with article XXVI , section 22 of the constitution which provides a $25 fine for any member not recognizing the I .L.A. working and dress button in the hiring of men, clearly contemplates that initial employment preference would be accorded members of the Respondent Local Union above all others at the referral and hiring stage of the employment procedure described above. This is unlawful as the abolition of all forms of compulsory unionism , save for a qualified form of the union shop, was a major objective of the 1947 amendments to the Act 22 15 Scherer and Davisson Logging Company , 119 NLRB 1587, 1589 ; Insurance Agents' International Union, AFL-CIO ( The Prudential Insurance Company of Ameiiea), 119 NLRB 768, 773 1a International Hod Carriers, Building, etc, AFL-CIO, Local No 1445 et al (Senix Scissor, Inc ), 126 NLRB 226 17 See "The Referral System," supra 18 The union members testified that their procedure was to go to the union hall to see which header's gangs were scheduled to work that day. 11 See the testimony of Rutherford Leonard , president and business agent of the Respondent Union , that he had never "publicized to any nonmembers how to get a job" p Mathew Lee, financial secretary of the Respondent Union , when asked by Respondent's counsel whether Leonard, the Union 's president and business agent, anounced at a meet- ing that union men were to be given preference in hiring over nonunion men, answered equivocally as follows " . that question was asked by some of the members , but the president would never commit himself to answer that question " 21The Respondent Union has 378 members One can only apply for membership if he has a union member as a "sponsor " ra Radio Officers' Union etc. v N L R B , 347 U S 17, 40-42 , S Rept. No. 105, 80th Cong, 1st sess ., pp. 5-7; vol I, Legislative History of Labor Management Relations Act, pp. 411-413. LOCAL 1426, INT'L LONGSHOREMEN'S ASSOCIATION, ETC. 207 The Respondent urges that it is neither responsible for the headers' actions, as they are employees of the shipping companies, nor did it participate in the hiring procedures . The answer to these contentions , however, is that a union is account- able for discriminatory hiring within a bargaining unit in which it enjoys repre- sentative status where there is in effect "a procedure which shows a practice or understanding [requiring discrimination ] though it may not establish an express contract between the parties." 23 The record in the instant case shows not only that the Union was a party to such a practice, in that it acquiesced and cooperated in carrying out the discrimination , but that through union member headers subject to its discipline, the hiring practice was in direct implementation of the Union's internal policy of requiring preferential treatment for its members. Thus, the constitution of the International Union imposes, as a regulation govern- ing local unions, the requirement that the union button "shall be recognized in the hiring of men" under penalty of monetary fine. It follows, therefore , that the headers who actually selected the men for the jobs pursuant to this preferential practice, were themselves union members (and in some instances also officers), subject to union discipline, and were thereby required by the Union to adhere to the International 's constitutional provision requiring recognition of the union button in hiring.24 As the header's own employment depended upon retention of his union membership, and hence the Union's good will, it follows that he was under the control of the Union in the exercise of his authority to employ others 25 Therefore, discriminatory hiring by union-member headers, which as here is "squarely within the general authority granted . . . by the Union 's . . . `rules' " is, without more, "binding upon the Union." 26 Based upon these circumstances, it is found that the Union played an active role in the hiring procedures adopted pursuant to the shapeup system and were carried out by the headers in implementation of union rules and policy requiring discrimination in favor of its members . Here, as in N.L.R.B. v. Local 369, Hod Carriers' Union, 240 F. 2d 539, 544 (C.A. 3), there was "a discriminatory hiring arrangement actively participated in by the Union .. . without whose cooperation the arrangement would not have been feasible." Conse- quently the "denial of equal access [between union members and nonmembers] to the available jobs was in itself and without more a restrictive imposition in violation of the Act." 27 It is concluded, therefore, that the record as a whole establishes the application of a discriminatory hiring policy by the Respondent for the recruitment of stevedores and longshoremen in the port of Wilmington, North Carolina; and that this policy was discriminatorily applied to nonunion members. The Respondent thereby com- mitted unfair labor practices to cause discrimination in employment by conditioning the employment of stevedores or longshoremen on being members of the Respondent Union, unless there were not a sufficient number of union members to fill the avail- able billets . This denial of equal access to the available jobs was a restrictive impo- sition in violation of Section 8(b)(2), and also Section 8(b)(1)(A), of the Act, in that it has the effect of restraining employees in their right to refrain from union activities.26 21 N.L.R B. v. Local 420, United Association of Journeymen, etc (J J White, Inc ), 239 F. 2d 327, 330 (C A. 3). See also N L R B v Local 369, International Hod Carriers, etc (A 0 Fromeyer Co.), 240 F 2d 539, 543 (C A. 3) , N L R B v Local 803, Inter- national Brotherhood of Boilermakers (Harbor Ship Maintenance Co ), 218 F 2d 299, 302 (CA 3). as Cf. Bordas & Co , 125 NLRB 1335 25 Cf Carpenters District Council of Milwaukee County and Vicinity , etc. (Del-Afar Cabinet Company) v. N.L.R.B., 274 F. 2d 564 ( C.A.D.C.), 11 N L R B. v. Cement Masons Local 555, etc (Anderson-Westphall Co ), 225 F 2d 168, 174 (C.A 9). 27N.LRB. v. Local 803, International Brotherhood of Boilermakers etc, 218 F. 2d 299, 302 ( C A. 3). See also N L R B. v. Newspaper & Mail Deliierers' Union, etc., 246 F. 2d 62 (C A. 3) ; N.L R B v. Local 420 United Association of Journeymen, etc. (J J White, Inc ), 239 F. 2d 327, 330 (C.A. 3). 28 Congress was fully aware, moreover , that the union-controlled hiring hall was one of the principal devices by which compulsory union membership had been effected. Thus, Senator Taft stated • "Perhaps [ the closed shop] is best exemplified by the so-called hiring halls . . where shipowners cannot employ anyone unless the Union sends him to them " 93 Cong. Rec. 3836 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth above, occurring in connection with the operations of the employer hereinabove described; have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Local 1426 has engaged in unfair labor practices affecting commerce pursuant to an unlawful referral and hiring arrangement, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The record demonstrates that the Respondent Union does not refer applicants for employment to employers on a nondiscriminatory basis and that its referral practices are inconsistent with the nondiscriminatory operation of a referral or hiring hall. Accordingly, it will be recommended that the Respondent Union cease and desist from requiring employers for whom it supplies personnel to agree to any arrangement, oral or written, which by its terms requires these employers to dis- criminate against employees who are not members of the Union in regard to their hire or tenure of employment or any term or condition of employment except in accordance with the proviso in Section 8(a)(3) of the Act. Furthermore, it shall be recommended that Respondent Union cease and desist from discriminating against nonunion applicants for employment, or requiring job applicants to be members of the Union before they can be eligible for employment, or to accord preference in employment to union members. ,By enforcing closed-shop conditions of employment, the Respondent has inevitably coerced employees to pay the dues, fees, and assessments necessary to achieve and retain membership in the Respondent or to receive a permit or clearance for them to work within the Union's jurisdiction In order adequately to remedy the unfair labor practices found, and to encourage compliance with the Act in the future, the Respondent should be required to reimburse employees of the said shipping companies for any dues, fees, assessments, or other moneys that were unlawfully exacted from them as a condition of obtaining or retaining employment with the said companies as the record is clear that union membership is a prerequisite to employment Accordingly, it shall be recommended that the Respondent refund to all employees of the said companies the initiation fees, assessments, dues, and other moneys paid by them as the price of their employment. The liability of the Respondent Union for reimbursement should include the neriod beginning 6 months prior to the filing and service of the charges herein and shall extend to all such moneys thereafter collected 29 Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following- CONCLUSIONS OF LAW 1. Heide and Company, Inc ., and Wilmington Shipping Company are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act 2. Respondent Local 1426, International Longshoremen's Association , AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3 By restraining and coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act, as found above, Local 1426, International Long- shoremen's Association , AFL-CIO, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 4. By causing and attempting to cause Heide and Company, Inc, and Wilmington Shipping Company to discriminate against their employees in violation of Section 8(a)(3), Local 1426 , International Longshoremen 's Association , AFL-CIO, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 5. The unfair labor practices found herein affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication 1 a Lummlcs Corporation . 125 NLRB 1161: Notion Picture Operators Union, etc . Local 244, et al (Stanley Warner Corporation ), 126 NLRB 276 See also The Inoalls Steel Construction Company, 126 NLRB 554: International Union of Operatioq Engineers. Local 150, AFL-CIO v D' L R B , 273 F. 2d 833 (C A D C.) ; Funeral Directors of- Greater St Louis. Inc , et al, 125 NLRB 241.