Southern Stevedoring and Contracting Co.

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Report because the Trial Examiner found that all the ultimate facts alleged in the complaint as violations of the Act were not proven . Had the ultimate facts, as alleged in the complaint, been proven, the preelection statements, introduced as back- ground evidence, would have been material in determining whether Respondent had been motivated to take the actions complained of because of antiunion animus. I find that Foreman Elrod and Assistant Manager Frost , prior to the election, did make statements to the effect that if the Union won the employees would not be laying around and there would be changes made . Also that Frost, Elrod, and Plant Manager McConnell asked some of the employees if they had been approached by union representatives. I do not find that any of Respondent 's representatives ever told an employee that he would not be able to leave the mine for a drink of water or that rent would have to be paid by the occupants of company houses if the Union won the election. I find that Plant Manager McConnell did talk to a number of the employees before the election during which conversation he pointed out the .benefits enjoyed by the employees and asked the employees to give the Company a chance.5 In these conversations McConnell made no threats of reprisal or force or promise of benefits. I do not find that Foreman Elrod told any of the drillers, before the election, that if the Union won they would have to set up their own drills. . In the above findings, ,I have considered the conflicts in the evidence and inherent in the findings is my resolution of what testimony I have credited. (Recommendations omitted from publication.) s Funkhouser Mills had recently been purchased by the Ruberold Company. Southern Stevedoring and Contracting Company and L. H. Sut- ton and D. L. Sandlin Southern Stevedoring and Contracting Company ; Master Ste- vedores Association of Texas and its Members and James I. Fagg, Sr. and Houston Maritime Association, Inc. and its Members; Galveston Maritime Association , Inc. and its Mem- bers, Parties to the Contract Southern Stevedoring and Contracting Company; Master Ste- vedores Association of Texas and James I. Fagg, Jr. Locals Nos. 307, 636, 991 and 1273 International Longshoremen's Association, Independent and D. L. Sandlin and L. H. Sutton South Atlantic and Gulf Coast District ; Locals Nos. 307, 636, 991 and 1273 International Longshoremen's Association, Inde- pendent and James I. Fagg, Sr. and James I. Fagg, Jr. and Locals Nos. 325, 329, 341, 440, 704, 814, 851, 872, 1029, 1175, 1180, 1214, 1224, 1225, 1306, 1367, 1368, 1391, 1610, 1723, 1758, 1770, and 1818, International Longshoremen's Association, Independent; International Longshoremen's. Association, Independent, Par- ties to the Contract. Cases Nos. 23-CA-818, 23-CA-849, 23-CA- 860, 23-CA-862, 23-CB-266, 23-CB-267, 23-CB-270, and 23-CB- 271. January 25, 1962 DECISION AND ORDER On February 26 and September 6, 196,0, respectively, Trial Exam- iner C. W. Whittemore issued his Intermediate Report and Supple- 135 NLRB No. 38. SOUTHERN STEVEDORING AND CONTRACTING COMPANY 545 mental Intermediate Report in the above-entitled proceeding, finding that Respondent Employers and Respondent labor organizations, ex- cept Respondent Local 991, had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate and Supplemental Intermediate Reports attached hereto. The Trial Examiner recommended dismissal of the complaint as to Respondent Local 991. The General Counsel, Respondent Em- ployers, and Respondent labor organizations filed exceptions to the Intermediate and Supplemental Intermediate Reports and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate and Supplemental Intermediate Reports, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent that they are consistent with what follows hereinafter. 1. Respondents are parties to a collective-bargaining agreement, known as the "Deep Sea" contract, which contains provisions respect- ing the hiring of longshoremen for employment. The contract was effective at times material herein, and its coverage extended to all "Texas Ports." The provisions respecting the hiring of longshore- men read, in pertinent part, as follows : The First Parties [the employers] will employ to perform [sic] all longshore work as defined in Rule 1 of this agreement the labor necessary therefor through hiring halls operated and adminis- tered by the local unions hereinbefore designated. The term "hir- ing halls," as -used herein, shall include all employment places. And, Said local unions agree to provide such hiring halls and to main- tain and operate them open to any person seeking employment as longshoremen irrespective of union affiliation, .. . And, It is agreed that in the operation of such hiring halls and in the selection of men for employment the Second Parties (the Unions) will not knowingly or intentionally engage in any discriminatory practice of any kind which are prohibited by the "Labor Manage- ment Relations Act of 1947." The Trial Examiner, relying upon the Board's decision in Houston Maritime Association, Inc., et al., •121 NLRB 389, which involved in all essential and substantive respects the identical contract terms as 634449-62-vol. 135-36 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above set forth, and upon the Board's decision in Mountain Pacific Chapter of the Association General Contractors, Inc., et at., 119 NLRB 883, found the contract's hiring hall provision unlawful. The Trial Examiner further found that by entering into and maintaining the contract containing unlawful hiring provisions, Respondents South- ern Stevedoring and Contracting Company and Master Stevedores Association of Texas, and Respondent South Atlantic and Gulf Coast District, and Locals 307, 636, and 1273, International Longshoremen's Association, Independent, violated Sections 8 (a) (1) and (3) and 8(b) (1) (A) and (2) of the Act, respectively. We do not adopt these findings and conclusions of the Trial Examiner. Subsequent to the Trial Examiner's issuance of his Intermediate and Supplemental Intermediate Reports, the United States Supreme Court, on April 17, 1961, handed down a decision in Local 3571 which now controls the disposition of this issue. Thus in Local 357, the Board had'held a hiring hall contract to be unlawful per se because it did not contain certain safeguards set forth by the Board in its Mountain Pacific 2 decision, supra. The Supreme Court, however, noting that the hiring hall provisions of the contract expressly stated that employees were to be dispatched for employment on the basis of seniority, and that seniority was to be attained "irre- spective of whether such employee is or is not a member of the Union," held the contract in question not unlawful per se. The Court said, "But surely discrimination cannot be inferred from the face of the instrument when the instrument specifically provides that there will be no discrimination . . . ," (345 U.S. at 675) and, "We cannot assume that a union conducts its operation in violation of law or that the parties to this contract did not intend to adhere to its express lan- guage." (345 U.S. at 676.) The Court, referring to the nondiscrimina- tory language of the agreement, then said, ". . . the Board is confined to determine whether discrimination has in fact been practiced." (345 U.S. at 667.) Upon consideration of the contract now before us in the framework of the decision of the Supreme Court in the Local 357 case, we hold the hiring hall provisions of the contract to be lawful on their face. The contract expressly states that the hiring hall shall be maintained and operated by the unions "irrespective of union affiliation" of any person seeking employment as a longshoreman, and that, in the selec- tion of men for employment, the unions "will not knowingly or inten- tionally engage in any discriminatory practices . . . ." Such language is sufficiently like the language which the Supreme Court had before 'Local 357, International Brotherhood of Teamsters , etc. (Loa Angeles -Seattle Motor Empre88 ) v. N.L.R B., 365 U.S. 667. 2119 NLRB 883, at 897. SOUTHERN STEVEDORING AND CONTRACTING COMPANY 5547 it in the Local 357 case, so as to compel the finding that the hiring hall arrangement herein is lawful on its face. 2. We turn now to consideration of the provisions of Respondents' contract respecting gang foremen which read as follows : The Master Stevedores Association of Texas shall have the right to name men as foremen. The locals to submit a list of gang foremen who are qualified, in the opinion of the local, to the . . . Association, from which list the . . . Association to name gang foremen. The Locals to submit . . . lists containing not less than (3) times the number of men required for gang foremen. ... Association . . . shall have the right to delete names from the lists submitted . . . , and substitute other men from lists sub- mitted by the Locals. If the Locals fail to . . . furnish the lists within . . . (15) days, then the Stevedores shall have the right to name as gang foremen any man from the gang. There shall be only one gang foreman to each working whip. [Sic] Gang foreman to have supervision of placement of all men in the gang subject to supervision and approval of the walking foreman.3 These provisions, known as rule 6, are identical to provisions found by the Board to be unlawful per se in the Houston Maritime decision, supra. In Houston Maritime, the Board found that such provisions resulted in the delegation by the employers to the unions of unilateral control over the selection of individuals for positions of gang fore- men; and that, because the gang foremen were supervisors subject to the control of the unions, the granting to such gang foremen of the authority to hire longshoremen was an abdication by the employers of hiring authority to the unions. The Board therefore held that because the contract did not include the so-called Mountain Pacific safeguards the gang foremen provisions of that contract were unlawful. The Trial Examiner here, following the Houston Maritime precedent, found that Respondents had violated the Act by entering into and maintaining an agreement containing rule 6. In the News Syndicate case,4 also decided- on April 17, 1961, the Supreme Court had before it a contract which provided that "mail- room superintendents, foremen, and assistant foremen must be mem- bers of t h e union and that the foremen would do the hiring." The con- tract further provided that "the General Laws of the ... Union ... not in conflict with this contract or with federal or state laws shall gov- ern . . . ," and "The union shall not discipline the foremen for carry- ing out the instructions of the publishers ...... and that foremen `shall be appointed and maybe removed by the Publishers." • The Supreme s According to the evidence, "walking foremen" are hired by the employers. 4 N.L R B. v. News Syndicate Company, Ino., et at, 365 U.S. 695. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Court reversed the Board's holding that this contract was an unlaw- ful delegation of hiring authority to the union, and, thus, an unlawful closed shop and preferential hiring system. The Court said : "... the contract on its face is not unlawful even though the foremen-who, are union members-do the hiring," and the contract's provision "make the foremen `solely [sic] the employers' agents,' as the Court of Ap- peals concluded.", (365 U.S. at 699.) The provisions of rule 6 of the contract now before us, when con- sidered in the light of this decision of the Supreme Court, can no longer be said to be unlawful on their face. Respondent Employers have the right to select foremen from a list submitted by the Respondent Unions, and the right to reject the names of those submitted which are not desired. The foremen thus chosen have, the authority to hire; but this authority is subject to the supervision and approval of the "walk- ing foreman," a representative of, and hired by, Respondent Employ- ers. Thus, the foremen appear to be the "agents" of Respondent Em- ployers within the meaning of that term in the Supreme Court's ruling in the News Syndicate case. Moreover, as rule 6, in the context of the whole contract, is a part of the contract's hiring hall system, it too comes within the language which expressly states that hiring shall be on a nondiscriminatory basis. Accordingly, we reverse the Trial Ex- aminer's findings that Respondents violated the Act by entering into and maintaining an agreement containing rule 6. 3. The Trial Examiner found that Respondent Employers,' Re- spondent District, and Respondent Locals 636 and 1273 unlawfully discriminated against five longshoremen, who were members of the IBL, when they applied for work at a shapeup in Texas City, Texas. Ben D. Harris, president of Respondent Southern Stevedoring, testi- fied that a few days prior to the Texas City shapeup he had informed James I. Fagg, Sr., an official of Locals 636 and 704 of International Brotherhood of Longshoremen, and also a member of ILA, that he wanted Fagg to be the walking foreman of the SS Rebecca when it arrived for loading. Harris told Fagg that the men hired would have to be ordered from the Respondent Unions because of "orders" Harris had from "Red" Williams, secretary of Respondent District, that long- shoremen, checkers, and timekeepers had to be "ILA." Fagg would -not accede to this arrangement, advising Harris that previously he had employed men from both unions. Harris said he knew about that, but could not do anything but order ILA men. At a subsequent meeting in Galveston in Harris' office, Fagg offered to have the hiring on a 50-50 basis. Harris agreed, provided the Respondent Unions would s The Trial Examiner's conclusion that Respondent Master Stevedores Association of Texas unlawfully discriminated against members of the IBL was based on his conclusion that the master contract, to which the Association was a party, was unlawful per se. Unlike the Trial Examiner , we have found the contract to be legal ; and, since the Respondent Master Stevedores did not actually engage in the hiring of longshoremen, we and no discriminatory activity as to them. SOUTHERN STEVEDORING AND CONTRACTING COMPANY 549 agree. The Respondent Unions would not agree, demanding all jobs. Harris then returned to his original position that all men would have to be ILA. Harris thereafter called the ILA representative at Texas City and advised him he wanted men for the SS Rebecca. On the day the Rebecca docked, several officials of Respondent Unions gathered at a vacant lot in Texas City and then went to the dock to shape up for hiring. Appearing at the shapeup were some 40 to 50 members of the IBL.6 Out of more than 200 hires on the 3 ves- sels, only 2 or 3 IBL men received employment. One of these was hired by a foreman friend for a few days' work. Another was not hired as an IBL member but had been referred by the Carpenters Union of which he was also a member. We find on the above facts that, entirely apart from the provisions ,of the hiring agreement, discrimination has been practiced by the Respondent District and Respondent Locals 636 and 1273 and, through its acquiescence, by the Respondent Southern Stevedoring and Con- tracting Company. The demand of "Red" Williams that all men be ILA was tantamount to a demand for a closed shop. Harris yielded to this demand and the discriminatory shapeup followed. The Trial Examiner found, specifically, that James I. Fagg, Sr., James I. Fagg, Jr., David L. Sandlin, Louis Sandejas, and Robert Morales were dis- criminatorily refused employment by Respondent District and Locals 636 and 1273 and by Respondent Southern Stevedoring and Contract- ing Company. We concur, and find the discriminatory activity by the Company to be in violation of Section 8 (a) (1) and (3) of the Act, and that of the District and locals to be in violation of Section 8(b) (1) (A) and (2). 4. The Trial Examiner found a further violation of the Act stem- ming from the language of a seniority resolution passed by Respondent Local 1273, ILA, which amended Local 1273's constitution. The reso- lution read as follows : BE IT RESOLVED that the following seniroity [sic] plan be adopted and placed in the local constitution of I.L.A. Local Union No. 1273, as an amendment thereto in the manner as provided in such local constitution, to wit : All union and non-union men working through the hiring hall of Local No. 1273 be classified and have the following seniroity [sic] rights : Class A. shall include all men who were members of I.L.A. Local No. 1273, as of January 1, 1959 and all non-union men who on that date possess the qualifications for a vacancy in Class A. as herein- after set out and without discrimination between union and non- The same general pattern was followed respecting two other vessels loaded by Re- spondent Southern Stevedoring subsequent to the docking of the Rebecca. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union men•as prescribed by the National Labor Relations Board in the Mountain Pacific case. [Emphasis supplied.] To qualify for a vacancy in Class A. a man must have had nine (9) years and more experience at longshore work on the Houston waterfront through the hiring hall operated by Local 1273 and must have worked at least ninety (90) days of cotton time and must have worked seven hundred (700) hours per year during the two years prior to the date such person is being considered for classification hereunder. This to apply to Union and non-union men alike and without discrimination as hereinbefore provided. The quota for Class A. shall not exceed 500 men. The resolution also provides for categories B, C, and D based on vary- ing degrees of experience on the Houston waterfront obtained through the hiring hall of Respondent Local 1273. We agree with the Trial Examiner's conclusion as to the resolution, because, while the provisions of the resolution expressly state that they are to be applied "without discrimination between union and non- union men," the requirements for class A seniority ratings are clearly at variance with the disclaimer. It is quite clear that all union mem- bers are to be included in class A without any qualifying requirements or standards other than ILA membership on January 1, 1959. It is equally clear that nonunion men can qualify for a "vacancy" in class A only by meeting the stringent conditions described in the resolution. This being true, the provisions respecting class A seniority necessarily are discriminatory against nonunion men. We do not consider the Supreme Court's decision in Local 357, supra, to be controlling in the circumstances. In that case, the sen- iority clause was a part of the hiring hall provisions of a contract which were found to be lawful. Specifically, the relevant provision in Local 357 stated : "Seniority rating . . . shall begin with . . . three months service . . . , irrespective of whether such employee is or is not a member of the Union." This language made the condition of service applicable to union and nonunion men alike. Local 357 does not, therefore, address itself to Respondent Local 1273's "experience" re- quirement for class A seniority, which requirement applied to non- union men only. Accordingly, we hold that Respondent Local. 1273 violated Section 8 (b) (1) (A) and (2) of the Act by putting into effect a discriminatory seniority requirement in the operation of its exclusive hiring hall, and thereby at least attempted to cause Respondent Employers to dis- criminate against nonunion men in violation of Section 8(a) (3) of the Act.' 7In the absence of evidence either that Respondent Employers were aware of or agreed to these seniority provisions , or that any particular fob applicants were discriminated. SOUTHERN STEVEDORING AND CONTRACTING COMPANY 551 5. The Trial Examiner found that Respondent Locals 636 and 1273 unlawfully exacted from employees a percentage of their pay by means of authorization cards which authorized the payment of a per- centage of an employee's wages to these locals, and which designated the locals as the collective-bargaining representatives of the employees. Unlike the Trial Examiner, however, we find, on the record before us, that the use of such cards does not constitute a violation of the Act because the record does not show by a preponderance of the evidence that employees were required to sign the cards as a condition of their employment. 6. The Trial Examiner found that Respondent Local 307 violated Section 8(b) (1) (A) and (2) of the Act because of its participation in the hiring hall agreement which he found to be unlawful. He also found however, that none of the responsible officials of Local 307 participated in the Texas City shapeup. In the absence of such par- ticipation, and because we have found the hiring hall agreement to be lawful, we shall order the dismissal of the allegations of the complaint as to Respondent Local 307. 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 : A. The Respondent, Southern Stevedoring and Contracting Com- pany, Galveston, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in Locals Nos. 636 and 1273, Inter- national Longshoremen's Association, Independent, and South Atlan- tic and Gulf Coast District, International Longshoremen's Associa- tion, Independent, by giving preference to applicants for employment to members of said labor organizations. (b) Discriminating with regard to hire against James I. Fagg, Sr., James I. Fagg, Jr., David L. Sandlin, Louis Sandejas, and Robert Morales because of their nonmembership in Locals Nos. 636 or 1273, International Longshoremen's Association, Independent. (c) In any other manner interfering with, restraining, or coercing employees- or applicants for employment in the exercise of rights guaranteed in Section 7 of the Act. ; . 2. Take the following, affirmative action which the Board finds will effectuate the policies of the Act. (a) Notify James I. Fagg, Sr., James I. Fagg, Jr., David L. Sandlin, Louis Sandejas, and Robert Morales, in writing, that it will against in the shapeup pursuant to such provisions , we do not adopt the Trial Examiner's finding that an actual violation of Section 8(a) (3) and (1) of the Act resulted in this instance. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not discriminate against them in regard to hire because of their non- membership in Locals Nos. 636 or 1273, International Longshore- men's Association, Independent. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay and other moneys due and the rights of employment under the terms set out in the section, of the Intermediate Report entitled "The Remedy." (c) Post at its offices in Houston and Galveston, Texas, and other places of business in the ports of Houston, Galveston, Texas City, and vicinity, copies of the notice attached hereto marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by a repre- sentative of the Employer, be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Employer to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c) above, as soon as they are forwarded by the Regional Director, copies of the Respondent Unions' notice herein marked "Appendix B." 9 (e) Mail to the Regional Director for the Twenty-third Region signed copies of the notices attached hereto marked "Appendix A" for posting by the Respondent Locals Nos. 636 and 1273, ILA, and Respondent South Atlantic and Gulf Coast District, ILA, at their respective offices, hiring halls, and meeting halls. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by representatives of the Employer, be forthwith re- turned to the said Regional Director. (f) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. B. The Respondent, Locals 636 and 1273, International Longshore- men's Association, Independent, and the Respondent, South Atlantic and Gulf Coast District, International Longshoremen's Association, Independent, their officers, agents, representatives, successors, and assigns, shall : 8In 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." 0 See footnote 8, supra. SOUTHERN STEVEDORING AND CONTRACTING COMPANY 553 1. Cease and desist from : (a) Causing or attempting to cause Southern Stevedoring and Con- tracting Company, or any other employer, to deny employment to James I. Fagg, Sr., James I. Fagg, Jr., David L. Sandlin, Louis Sandejas, and Robert Morales, or any other members of International Brotherhood of Longshoremen, AFL-CIO, or to any other applicant for employment, in violation of Section 8(a) (3) of the Act, or other- wise to discriminate against them because they are not members of Respondent Locals 636 or 1273. (b) In any other manner restraining or coercing employees or applicants for employment with Southern Stevedoring and Contract- ing Company, or any other employer, in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify Southern Stevedoring and Contracting Company, in writing, with copies to James I. Fagg, Sr., James I. Fagg, Jr., David L. Sandlin, Louis Sandejas, and Robert Morales, that Respondent South Atlantic and Gulf Coast District and Locals Nos. 636 and 1273 have no objection to the employment of the named individuals by Southern Stevedoring and Contracting Company based on their non- membership in the Respondent Locals Nos. 636 and 1273. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records and reports neces- sary to analyze the amounts of backpay due and other moneys due, and the rights of employment under the terms of this Order. (c) Post at their respective offices, hiring halls, and meeting halls, copies of the notice attached hereto marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by representatives of Respondent South Atlantic and Gulf Coast District and Locals Nos. 636 and 1273, be posted by them immediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days there- after, in conspicuous places, including all places where notices to mem- bers and to other persons using the hiring halls of South Altantic and Gulf Coast District and Locals Nos. 636 and 1273 are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c) above, as soon as they, are forwarded by the Regional Director, copies of the Respondent Employer's notice herein marked "Appendix A." (e) Mail to the Regional Director for the Twenty-third Region signed copies of the notice attached hereto marked "Appendix B" for 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posting by the Respondent Employer. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by a representative of Respondent South Atlantic and Gulf Coast Dis- trict and Locals Nos. 636 and 1273, be forthwith returned to the Re- gional Director. (f) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. C. The Respondent, Southern Stevedoring and Contracting Com- pany, its officers, agents, successors and assigns; the Respondent, Locals Nos. 636 and 1273, International Longshoremen's Association, Independent, and Respondent, South Atlantic and Gulf Coast Dis- trict, International Longshoremen's Association, Independent, their officers, representatives, agents, successors, and assigns, shall jointly and severally make whole James I. Fagg, Sr., James I. Fagg, Jr., David L. Sandlin, Louis Sandejas, and Robert Morales for any loss of pay they may have suffered by reason of the discrimination against them in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." D. The Respondent Local 1273, International Longshoremen's As- sociation, Independent, its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from maintaining or giving effect to, in the operation of its exclusive hiring hall with any employer, any arrange- ment which gives preference in seniority for hiring purposes to its members as against nonmembers. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its office, hiring hall, and meeting hall, copies of the notice attached hereto marked "Appendix C." 10 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by representatives of Respondent Local No. 1273, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to to members and to other persons using the hiring hall of Local No. 1273 are cus- tomarily posted. Reasonable steps shall be taken to insure that said notice is not altered, defaced, or covered by any other material. (b) Notify the Regional Director of the Twenty-third Region, in writing, within, 10 days from, the date of, this Order, .what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges violations of the Act not found herein. 10 See footnote 8, supra. SOUTHERN STEVEDORING AND CONTRACTING COMPANY 555 MEMBER FANNING concurring and dissenting in part: I agree with majority's conclusion that the exclusive hiring hall ad- ministered by Respondent ILA and its respective locals, named in -the complaint, was not unlawful on its face in view of the Supreme Court's decision in Local 357, supra. I also agree with the remaining findings and conclusions of the majority, except that portion of the decision which finds unlawful discrimination against five members of IBL, James I. Fagg, Sr., James I. Fagg, Jr., David L. Sandlin, Louis Sandejas, and Robert Morales. In my opinion, the evidence is in- sufficient to support such a finding with respect to these individuals. In the first place, as the hiring hall contract between the ILA and the Respondent Employers was exclusive and concededly lawful, Respond- ent Unions could lawfully insist that longshoremen hired at Texas City on and after October 20, 1958, "be ordered only from the ILA." Certainly, such a demand is not "tantamount to a demand for a closed shop." If it were, the contract requiring exclusive referral from the ILA would be unlawful on its face. While the majority points to the fact that 40 to 50 members of the IBL appeared at the shapeup and were not hired, no evidence is recited to warrant the conclusion that they were the objects of unlawful discrimination. Indeed, the major- ity does not so find. However, the majority concludes that there was a "discriminatory shapeup" and that the five individuals named above were its specific victims. With respect to James I. Fagg, Sr., the Trial Examiner found that he was not hired as a walking foreman (a supervisor) by Southern Stevedoring as a result of the contract re- quiring referral from ILA. With respect to James I. Fagg, Jr., the Trial Examiner found that he had appeared at shapeups on three occasions and was not hired. With respect to Louis Sandejas and Robert Morales, they appeared at a single shapeup on October 20 and were not hired. With respect to David L. Sandlin, he appeared at several shapeups from October 20 without being hired, but was hired in November. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, notice is hereby given that : / WE WILL NOT encourage membership in Locals Nos. 636 and 1273 and South Atlantic and Gulf Coast District, International Longshoremen's Association, Independent, by giving preference in employment to members of such organizations. WE WILL NOT discriminate against James I. Fagg, Sr., James I. Fagg, Jr., David L. Sandlin, Louis Sandejas, and 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robert Morales because they are not members of said Locals Nos. 636 and 1273, International Longshoremen's Association, Independent. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees or applicants for employment in the ex- ercise of the rights guaranteed in Section 7 of the Act. WE WILL notify James I. Fagg, Sr., James I. Fagg, Jr., David L. Sandlin, Louis Sandejas, and Robert Morales, in writing, that we will not discriminate against them in regard to hire because of their nonmembership in Locals Nos. 636 or 1273, International Longshoremen's Association, Independent. WE WILL make whole James I. Fagg, Sr., James I. Fagg, Jr., David L. Sandlin, Louis Sandejas, and Robert Morales for any loss of pay they may have suffered because of the discrimination against them. All of our employees are free to become or remain, or refrain from becoming or remaining members of any labor organization, except to the extent that this right may be affected by an agreement conforming to the applicable provisions of Section 8(a) (3) of the National Labor Relations Act. SOUTHERN STEVEDORING AND CONTRACTING COMPANY, Employer. 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. Employees may communicate directly with the Board's Regional Office (650 M & M Building, 1 Main Street, Houston, Texas; tele- phone number, Capitol 2-7201, extension 041) if they have any ques- tion concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL MEMBERS OF LOCALS Nos. 636 AND 12733, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, INDEPENDENT, AND TO ALL LONG- SHOREMEN EMPLOYED IN THE PORTS OF HOUSTON, GALVESTON, TEXAS CITY, AND VICINITY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause Southern Stevedoring and Contracting Company, or any other employer, to deny em- ployment to James I. Fagg, Sr., James I. Fagg, Jr., David L. SOUTHERN STEVEDORING AND CONTRACTING COMPANY 557 Sandlin, Louis Sandejas, and Robert Morales, or any other members of International Brotherhood of Longshoremen, AFL- CIO, or to any other applicant for employment, in violation of Section 8(a) (3) of the Act, or otherwise discriminate against them because they are not members of Locals Nos. 636 or 1273, International Longshoremen's Association, Independent. WE WILL NOT in any other manner restrain or coerce employees or applicants for employment with the said Southern Stevedoring and Contracting Company, or any other employer, in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL notify Southern Stevedoring and Contracting Com- pany and James I. Fagg, Sr., James I. Fagg, Jr., David L. Sandlin, Louis Sandejas, and Robert Morales, that we have no objection to the employment of the above-named individuals by Southern Stevedoring and Contracting Company, because of non- membership in Respondent Locals Nos. 636 and 1273, ILA. WE WILL make whole James I. Fagg, Sr., James I. Fagg, Jr., David L. Sandlin, Louis Sandejas, and Robert Morales for any loss of pay they may have suffered because of the discrimination against them. SOUTH ATLANTIC AND GULF COAST DIs- TRICT, INTERNATIONAL LONGSHORE- MEN'S ASSOCIATION, INDEPENDENT, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) LOCAL 636, INTERNATIONAL LONGSHORE- MEN'S ASSOCIATION, INDEPENDENT, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) LOCAL 1273, INTERNATIONAL LONGSHORE- MEN'S ASSOCIATION, INDEPENDENT, 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. Employees may communicate directly with the Board 's Regional Office (650 M & M Building,1 Main Street, Houston, Texas; telephone number Capitol 2-7201, extension 041) if they have any question con- cerning this notice or compliance with its provisions. 11 , CI 1 558° DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX C NOTICE TO ALL MEMBERS OP LOCAL 1273, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, INDEPENDENT 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 maintain or give effect to, in the operation of our exclusive hiring hall under an exclusive arrangement with any employer, any arrangement which gives preference in seniority for hiring purposes to our members as against nonmembers. LOCAL 1273, INTERNATIONAL LONGSHORE- MEN'S ASSOCIATION, INDEPENDENT, 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. Employees may communicate directly with the Board's Regional Office (650 M & M Building, 1 Main Street, Houston, Texas; telephone number Capitol 2-7201, extension 041) if they have any question con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been duly filed and served; an order consolidating the above- entitled cases; complaints and a notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board; and answers having been filed by the above-named Respondents, a hearing involving allegations of unfair labor practices in violation of Section 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, was held in Galveston, Texas, on July 28 and November 17, 18, 19, and 20, 1959, before the duly designated Trial Examiner. At the hearing all parties were represented and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally, and to file briefs. Argument was waived. Briefs have been received from counsel for the Respondents, Southern Stevedoring and Master Stevedores, counsel for Locals 307 1 and 872, and General Counsel. At the conclusion of the hearing ruling was reserved upon several motions to dis- miss the complaint. Disposition of these motions is made by the following findings, conclusions, and recommendations. Upon the entire record of the proceedings, and from his observation of the wit- nesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF ,THE RESPONDENT EMPLOYERS The Respondents, Southern Stevedoring and Master Stevedores,2 are engaged in the business of soliciting and handling of maritime passengers and cargo into and out 1 The same counsel also appeared for Local 872, named only as a party to a contract Involved. 2 The same counsel also appeared for Houston Maritime and Galveston Maritime, named not as respondents but parties to a contract Involved. SOUTHERN STEVEDORING AND CONTRACTING COMPANY 559 of the ports of Houston and Galveston, Texas. Both Respondents are Texas corpo- rations with principal office and place of business in Houston, Texas. Counsel for the Respondent, Southern Stevedoring, concedes that it is engaged in commerce and is subject to the Board's jurisdiction. In earlier cases the Board has asserted jurisdiction over the Respondent, Master Stevedores (Houston Maritime Association, Inc., et al., 121 NLRB 389, and Galveston Maritime Association, Inc., et al., 122 NLRB 692). It appears to be unnecessary to set out m this report all details of the commerce allegations and admissions contained in the record. All parties at the hearing in this proceeding conceded, and it is concluded and found, that the Board has jurisdiction over matters here involved. II. THE LABOR ORGANIZATIONS INVOLVED The Respondents, Gulf Coast District 3 and Locals, ILA, Independent, and Inter- national Brotherhood of Longshoremen , AFL-CIO, are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and major issues This proceeding stems from two prime facts: (1) the contracting parties in the Gulf District stevedoring industry have not complied, as to hiring practices, with the Board's order in Houston Maritime Association, Inc., et al., cited above, and (2) the localized but still festering rift between the longshoremen's leadership in at least one section of that area, at Texas City, Texas. ,In substance it is General Counsel's contention, denied in the answers, that the Respondents violated the Act by maintenance of an agreement providing for unlaw- ful hiring hall practices and in carrying out such provisions specifically discriminated in favor of ILA members and against IBL members during a period in late 1958 at Texas City, when the Respondent, Southern Stevedoring, had occasion to employ longshoremen at that port. The circumstances of the specifically alleged discrimination arose from the resump- tion, in the fall of 1958, of Texas City as a port open for seagoing vessels, more than 10 years after the disaster which wrecked that port in April 1947. During the interim decade the bulk of Iongshore work was limited to coastwise ships. It was during that 10-year period also that the parent AFL withdrew its charter from the ILA. Among others, and specifically involved here, in 1953 Locals 636 and 704 left the ILA and obtained charters under the International Brotherhood of Long- shoremen, AFL-CIO, using the same local numbers. At the material period Charg- ing Party James I. Fagg, Sr., was the head of both Locals 636 and 704, IBL, at Texas City. And existing at the same time were ILA locals of the same number. The critical clash between the ILA and IBL locals at Texas City occurred in Octo- ber 1958, when the Respondent, Southern Stevedoring, received a Government con- tract to load at this port-the first appreciable operation of this nature here since 1947. As will be described more fully below, President Harris of that Respondent, after first agreeing to hire IBL and ILA men in equal proportion, finally yielded to ILA insistence that under its contract all hiring should be through ILA hiring halls. It is this specific conduct of hiring which General Counsel contends was unlawfully discriminatory. Thus, in summary, the two major issues for consideration are the contract and dis- criminatory hiring at Texas City. B. The contract Since President Harris, as a witness, referred to the so-called "Deep Sea" contract as "our contract," which covered his Texas City operations in October 1958, and which he said J. E. Williams, a responsible official of the Gulf Coast District, ILA, served "notice on me that I must live up to" at that port, it appears appropriate now to turn to that document. During the hearings the parties conceded that "in all essentials and substantive provisions" the contract in existence in October 1958, is the same as the immediately preceding agreement which, in a previously cited case (Houston Maritime Associa- tion, Inc., et al, 121 NLRB 389), had been found by,the Board to be unlawful It became effective on October l,'1956, and was due expire September 30, 1959. To recite in detail the provisions of this later, contract .would appear to the Trial 3 The same counsel also appeared for ILA and various locals named as parties to a contract involved. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner to be a needless waste of time, space, and effort. Since in essence the facts are the same as found by the same Trial Examiner in the earlier case, and the Trial Examiner is bound by the Board's conclusions, the conclusions here must coincide with those already issued by the Board. Rule 6, relative to gang foremen (who do the actual selection of longshoremen for hiring), is the same in both the earlier and later contracts. And of this provision the Board said: By virtue of Rule No. 6 ... the Respondent Employers have virtually divested themselves of their hiring and placement functions and have abdicated such func- tions to the Respondent Union and other Union parties to the contract. provisions of an agreement between an employer and a union which establish an exclusive hiring arrangement constitute an inherent and unlawful encouragement of union membership if they confer unfettered control over the hiring process to the union, but not if they merely confer authority with respect to the hiring process subject to safeguards which the Board deems essential. It is clear that the Mountain Pacific safeguards,4 cited above by the Board, have not been applied in the execution or maintenance of the agreement here involved. The Trial Examiner accordingly now finds, in the language of the Board in the above-cited case, that "by entering into and maintaining an agreement containing the aforementioned Rule No. 6, the Respondent Employers have violated Section 8(a)(1), (2), and (3) of the Act," and the Respondent Unions (except Local 991) "have violated Section 8(b)(1)(A) and (2)." The Respondent Employers involved in the unlawful agreement are Southern Stevedoring and Contracting Company and Master Stevedores of Texas and its members, while the Respondent Unions are South Atlantic and Gulf Coast District, and Locals Nos. 307, 636, and 1273, International Longshoremen's Association, Independents C. Discrimination in hiring at Texas City The preponderance of credible evidence fully sustains General Counsel's conten- tion that the Respondent, Gulf Coast District, and certain of its locals caused the Respondents, Southern Stevedoring and Master Stevedores, to discriminate, and that the said Respondents, Southern Stevedoring and Master Stevedores, did dis- criminate against members of Locals 636 and 704, IBL, in the employment of long- shoremen at Texas City on and after October 20, 1958. The conclusion is supported by the following factors: (a) All named Respondents (except Local 991) were parties to the unlawful agreement described in the section above which governed the hiring procedure at Texas City according to the testimony of President Harris of Southern Stevedoring and Edward Pearson, secretary-treasurer of Locals 636 and 704, ILA. (b) On October 16 Harris informed James I. Fagg, Sr., who for some time had served as walking foreman for him at his Texas City coastwise operations, that he wanted him to occupy the same position in handling the loading a few days later of the SS Rebecca. Harris told him, however, that he would have to order the longshoremen, checkers, and timekeeper from the ILA, because of "orders" from "Red" Williams, secretary of the Respondent, Gulf Coast District. That he had received such instructions from Williams was confirmed by Harris, as a witness, and Williams was not called to deny the fact. Fagg pointed out that IBL men for some time had been used at Harris' Texas City operations, and that while he, him- self, was still a member of both ILA and IBL, there would be "complications" if men were to be ordered only from the ILA. Harris remained insistent, however, as to the source of longshoremen. (C) Fagg, while holding his ILA membership, was also president of both IBL Locals-636 and 704. He contacted the mayor of Texas City, informed him of probable trouble, and this official arranged for a meeting with Harris on October 18. Fagg, among others, was present, and urged Harris to "split the work 50-50" between the ILA and IBL, and let the National Labor Relations Board decide which organization had jurisdiction over the work. Harris finally agreed to this arrangement, provided ILA officials would approve. The mayor tried unsuccess- fully to reach "Red" Williams, but did locate Leon Henry, head of Local 636, ILA, at Texas City. The mayor reported back to the meeting that Henry refused 4 Mountain Pacific Chapter of the Associated General Contractors, Inc., et al., 119 NLRB 883. 5 Documents in evidence and testimony of witnesses establish that each of these Respond- ents was a party to the agreement in question . The Trial Examiner finds no evidence in the record that Local 991, ILA, was a party to the contract. During the hearing General Counsel admitted that he did not know whether this local had signed. SOUTHERN STEVEDORING AND CONTRACTING COMPANY 561 to approve the compromise, and on the contrary had said "under no circumstances could they split the work; they were going to have the whole hog or none." ILA approval not being received, Harris maintained his position that all hiring would be done through the ILA. Fagg then informed him that he would set up a picket line if the work was not split "50-50." (d) When work began on October 20 on the SS Rebecca, the longshore work was not split "50-50," as Harris had said it would be satisfactory if the ILA agreed, and Fagg did set up a picket line. The picket line itself was of short duration, a court injunction causing it to be disbanded. Pickets carried a sign stating that the Southern Stevedoring was "unfair" to IBL Locals 636 and 704, and some 40 to 50 IBL members were there, ready for work and hiring. These facts support the conclusion that Fagg and at least that number of IBL members made an appropriate effort to obtain work that day, in spite of Harris' declaration that hiring would be only through the ILA. (e) Company records in evidence show that approximately 90 longshoremen and those in allied work were employed on October 20, and that varying numbers were thereafter employed during the loading of the Rebecca and two other vessels between that date and December 2, 1958. (f) It is undisputed that during this period practically all men hired were ILA members. Three individuals: Fisher, Harris, and Dick, who until then had been IBL members, were finally able to get work only after they had signed a letter of resignation and turned it over to the ILA. (g) J. H. Hoff, a gang foreman who worked the Rebecca and at least one other ship during this period, and who was a witness for the Respondent Unions, ad- mitted candidly that he "picked up" ILA members for "his gang" before he "picked up" anyone else. Since the record fully establishes the fact that there was not equal distribution of hiring between ILA and IBL members, and that therefore discrimination occurred, it appears unnecessary here to review in detail the testimony of a few specific indi- viduals who appeared at shapeups, were not hired, and so may well have been specifically discriminated against. It is found, however, that Harris discriminatorily refused to hire James I. Fagg, Sr., by invoking the unlawful agreement, and in com- pliance with the insistence of a Gulf District official. The identity of all other discriminatees and the monetary extent of specific discrimination can best be determined, in the opinion of the Trial Examiner, at the compliance stage of these proceedings. In summary, the Trial Examiner concludes and finds that in the above-described hiring for vessels loaded by the Respondent Southern Stevedoring at Texas City the Respondent Employers 6 unlawfully discriminated against James I. Fagg, Sr.,7 and other IBL members, thereby encouraging membership in ILA, in violation of Section 8(a)(3) and (1) of the Act, and that such unlawful discrimination was caused by the Respondent Unions (except Local 991).8 By causing the Respondent Employers to violate Section 8(a)(3) of the Act the said Respondent Unions vio- lated Section 8(b)(2) and (1)(A) of the Act. All said Respondents thereby restrained and coerced employees in the exercise of rights guaranteed by the Act. D. Collateral issues In the complaint and in his brief General Counsel also urges that in operating under the unlawful agreement described herein: (1) Respondent Locals 636 and 1273 unlawfully exacted a percentage of their pay from nonmembers for use of their referral system and required them to designate the Union as their bargaining agent, and (2) Respondent Local 1273 operated an illegal seniority system, and that thereby the Respondent Employers have violated Section 8(a)(1), (2), and (3) 6 Although the Respondent Master Stevedores did not actually engage in the hiring of longshoremen, it is a party to the illegal contract invoked by its member, Southern Stevedonng, and served that member as an agent in preparing and distributing paychecks to the ILA members discriminatorily hired. 7 While it is clear that James I Fagg, Sr., was originally to be hired in a supervisory capacity, the motive governing the failure to employ him was of a plainly discriminatory nature, and its effect, by limiting the hiring to the ILA hiring hall, necessarily affected prospective applicants for employment, and resulted in discrimination against him and such applicants. 9 As noted in a preceding footnote, the record lacks evidence that Local 991 was a party to the unlawful contract. It also is barren of evidence that any responsible official of Locals 991 or 307 participated in the hiring at Texas City. 634449-62-vol. 135-37 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act, and that Respondent Unions Locals 636 and 1273 have violated Sec- tion 8(b)(1)(A) and (2). Uncontradicted evidence supports both contentions. As to (1), since the same practice involved here was described in detail in Houston Maritime, cited above, was there found unlawful by the Board, and because the governing agreement in this case is a mere extension, in effect, of the agreement found illegal in the same cited case, it appears unnecessary to go into details of the practice in this report. The Trial Examiner finds competent evidence in the record, however, which involves only Locals 1273 and 636 in the illegal practice, and the remedy in this respect will be limited to them. As to point (2), the seniority system more recently evolved by Local 1273, in an apparent effort to give lip service to the Board's Mountain Pacific safeguards, contains at least two features causing the system to fall short of such compliance. In the first place the system is administered solely by the Respondent Local. And the Class A members are readily identifiable as union members only. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Respondent Employers described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that certain of the Respondents have engaged in unfair labor practices, the Trial Examiner will recommend that they cease and desist therefrom and take affirmative action necessary to effectuate the policies of the Act. It will be recommended that the Respondents (excluding Local 991) shall jointly and severally make whole James I. Fagg, Sr., and other members of Locals 636 and 794, IBL, to the extent of 50 percent of all hirings for the Respondent Southern Stevedoring at Texas City, Texas, since October 20, 1958, for any loss of pay suffered because of the discrimination against them, by payment to each of them of a sum of money equal to that which he would have earned absent the discrimina- tion against him from October 20, 1958, until such date as the Respondents have posted appropriate notices and publicly announced that the discriminatory hiring policy has been abolished and that a nondiscriminatory policy is in effect. The identity of the individuals discriminated against and the amounts of backpay due shall be determined at the compliance stage of these proceedings. Backpay shall be computed in accordance with the Board's usual remedial policies: F. W. Woolworth Company, 90 NLRB 289; Crossett Lumber Co., 8 NLRB 440. It will also be recommended, in accordance with the Board's order in Houston Maritime,. previously cited, that the Respondent Employers withdraw recognition from the Respondent Unions and that the Respondents cease giving effect to the agreement described herein, or to any modification, extension, supplement, or renewal thereof, unless and until the Respondent Unions shall have established exclusive majority representative status pursuant to a Board-conducted election among the Respondent Employers' employees; 9 and it will also be recommended that the Respondents jointly and severally reimburse employees who have been unlawfully required to pay a percentage of their wages to the Respondent Locals 1273 and 636, ILA, liability therefor to begin 6 months prior to the date of the filings and service of the initial charge against each Respondent, and to extend to all such moneys thereafter collected. The Respondents shall have the right to offset against any such sum which they are required to pay to any union member as reimbursement any moneys which have been returned to such union member out of the funds derived from such unlawful exaction. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent Unions are labor organizations within the meaning of Section 2(5) of the Act. 9 Nothing in these recommendations, however, shall be construed as requiring the Re- spondent Employers to abandon or vary those wage, hour, seniority, or other lawful sub- stantive features of the relationship between the Respondent Employers and their employees which may have been established pursuant to such agreement. SOUTHERN STEVEDORING'AND CONTRACTING COMPANY 563 2. By discriminating in regard to the hire and tenure of employment and the terms and conditions of employment of James I. Fagg, Sr., and others, the Respondent Employers have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By contributing support and assistance to the Respondent Unions the Re- spondent Employers have engaged in and are engaging in unfair labor practices within the-meaning of Section 8(a) (2) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Employers have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By causing and attempting to cause the Respondent Employers to discriminate against employees within the meaning of Section 8(a) (3) of the Act, the Respondent Unions (except Local 991) have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 6. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Unions (except Local 991) have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(1) (A) of the Act. 7. The unfair labor practices found herein are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. Local 991, ILA, has not engaged in unfair labor practices within the meaning of the Act. [Recommendations omitted from publication.] SUPPLEMENTAL INTERMEDIATE REPORT On February 26, 1960, the duly designated Trial Examiner issued his Intermediate Report in the above-entitled matter. On June 30, 1960, the Board issued its order remanding the proceeding to the Trial Examiner: for the preparation and issuance of a Supplemental Intermediate Report setting forth additional findings of facts with respect to the acts of discrimina- tion set forth in the complaint and litigated at the hearing, and the respects in which provisions of the contract involved in the proceeding violated the Act; and on the basis of the aforesaid to set forth appropriate supplemental Con- clusions of Law, Remedy and Recommendations . Copies of such Supplemental Intermediate Report shall be served upon all parties , after which the provisions of Sections 102.46 and 102.14 of the Board's Rules and Regulations shall be applicable. Pursuant to said order , and upon the entire record in the case before him, the Trial Examiner makes the following additional findings and conclusions. A. The contract involved The "Deep Sea" contract, effective October 1, 1956, and terminating September 30, 1959, placed in issue by the complaint, and found by the Trial Examiner to have been unlawful , contains the following provision, included in the "General Rules Governing Work": Rule No. 6-Eligible Gang Foremen The Master Stevedores Association of Texas shall have the right to name men as gang foremen . The Locals to submit a list of gang foremen who are qualified,. in the opinion of the local, to the Master Stevedores Association of Texas, from which list the Master Stevedores Association of Texas to name gang foremen . The Locals to submit, within fifteen ( 15) days from the date of this contract, lists containing not less than three ( 3) times the number of men required for gang foremen. The Master Stevedores Association of Texas shall have the right to delete names from the lists submitted by the Locals, and substitute other men from lists submitted by the Locals. After the Master Stevedores Association of Texas have made deletions from the original lists as submitted , the Locals will have the right to call a meeting with the Stevedores to discuss the reason for the individual deletions, never-the -less the right of deletion remains with 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Stevedores. If the Locals fail to carry out the procedure as outlined above, to furnish the lists within fifteen (15) days, then the Stevedores shall have the right themselves to name as gang foremen any man from the gang. This right of selection by the Stevedores shall continue until such time as the required number of eligible foremen are approved. There shall be only one gang foreman to each working ship. Gang foreman to have supervision of placement of all men in the gang subject to supervision and approval of the walking foreman. Gang foremen to receive ten (100) cents per hour over and above the other men in the gang. The above-quoted rule, appearing in the contract presently in issue, is precisely the same as that which appeared in the immediately preceding contract between the same parties and which the Board found was unlawful in Houston Maritime Associa- tion, Inc., et al., 121 NLRB 389, a case heard by the same Trial Examiner. In the original Intermediate Report in the instant case the Trial Examiner referred to the fact that the unlawful rule appeared in the succeeding contract, and adopted the Board's ultimate conclusions concerning it. Pursuant to the Board's order, the Trial Examiner now adds the following find- ings concerning this rule 6. Being governed by the Board's findings and conclusions in the above-cited Houston Maritime decision, the Trial Examiner hereby adopts the following language quoted from that decision. As clearly set forth therein, this rule obligates the Respondent Employers to select gang foremen from lists submitted by the union parties to the con- tract, . but does not in any manner limit such Union's discretion to deter- mine whose names shall be included on the lists. Although under the rule the Employers may delete names from such lists, they may make substitutions only from other similar lists. By virtue of this rule, therefore, the Respondent Employers have clearly delegated to the union parties to the contract, .. . complete unilateral control over the selection of individuals who may be con- sidered by the Respondent Employers for the positions of gang foremen, and therefore, in effect, the right to name the gang foremen. Moreover, as the employment of stevedoring gangs, including gang foremen, is intermittent (gangs being hired only for the duration of a particular loading or unloading job), the ability of gang foremen to secure new employment after a job is finished neces- sarily depends under the contract on the continued inclusion of their names on the lists provided for in Rule No. 6. Because of the unfettered right in the unions to determine the composition of the hiring lists and the power inherent therein to discipline gang foremen by excluding their names from future lists, the contract gives to the Unions not only the power to name the gang foremen, but also as an inevitable consequence the power to control their actions. Rule No. 6, in addition to the foregoing, also gives to gang foremen super- vision of the placement of all men in the gang, subject to the supervision and approval of the walking foreman. As a consequence gang foremen who, .. . are clearly supervisors within the meaning of the Act, have under contract effective initial authority and responsibility with respect to the hiring and place- ment of the Respondent Employers' employees. With respect to such hiring and placement, gang foremen are not, however, solely the agents of the Respondent Employers but are, as found -above, subject to the control of the union parties to the contract, thus vesting in such Unions, through their power to control the actions of these gang foremen, the power to control the hiring and placement of the Respondent Employers' employees. By virtue of Rule No. 6, therefore, the Respondent Employers have virtually divested themselves of their hiring and placement functions and have abdicated such functions to the . . . union parties to the contract. provisions of an agreement between an employer and a union which establish an exclusive hiring arrangement constitute an inherent and unlawful encouragement of union membership if they confer unfettered control over the hiring process to the union, but not if they merely confer authority with re- spect to the hiring process subject to safeguards which the Board deems essential. These safeguards, . shall consist of explicit provision in the agreement that: (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, rules, regulations, constitutional provisions, or any other aspect or obli- SOUTHERN STEVEDORING AND CONTRACTING COMPANY 565 gation of union membership, policies, or requirements; (2) the employer retains the right to reject any job applicant referred by the union; and (3) the parties to the agreement 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 . . . essential to the legality of an exclusive hiring arrangement. In the 1956-59 contract, involved herein, as in the preceding contract, the Moun- tain Pacific safeguards do not appear. That an "exclusive hiring arrangement" was established by the same 1956-59 contract is shown by the following provision: Hiring Halls The First Parties (Master Stevedores Association and the Hous- ton and Galveston Maritime Associations) will employ to perform all longshore work as defined in Rule 1 of this Agreement the labor necessary therefore through hiring halls operated and administered by the local unions hereinbefore designated. The term "hiring halls," as used herein, shall include all employ- ment places. * * * * * * It shall likewise be the duty and responsibility of the office of the president of the South Atlantic and Gulf Coast District of the I.L.A. to see that the proper system of coordination is maintained in order that available gangs will be provided from other locals when they cannot be supplied from the local ordered. Accordingly, the Trial Examiner concludes and finds that rule 6 contravenes the Act. The Trial Examiner hereby affirms the ultimate conclusions concerning the unlawful nature of the 1956-59 contract, the Respondents involved, and the respec- tive_sections of the Act thus violated, which are contained in the original Intermediate Report'in this case. B. Discrimination In his original Intermediate Report the Trial Examiner found that unlawful dis- crimination in hirings at Texas City, as alleged in the complaint, had occurred; the basis for that conclusion being fully set forth and in substance being that, contrary to the employer's equitable agreement to hire in equal numbers through the two contend- ing hiring halls, actual hiring was done through but one, under unlawful pressure. Since the complaint alleged only a few individuals as being specifically discriminated against, but contended that such discrimination was "not limited" to them, the Trial Examiner found discrimination to have been visited against one individual only and recommended that the identity of all ther discriminatees be determined at compliance proceedings. Pursuant to the Board's order, the Trial Examiner makes the following findings concerning the individuals, other than James I. Fagg, Sr., who are specifically named in the complaint. James 1. Fagg, Jr.: This individual, son of the head of the IBL locals, appeared on three occasions, on and after October 20, 1958, at "shapeups" for the SS Rebecca, SS Sergeant Morris E. Crain, and SS Private McGraw. He was a member of the IBL locals. He was not hired on any occasion. The Trial Examiner finds that Fagg, Jr., was discriminatorily refused hire to encourage membership in the Re- spondent Unions, and because he was a member of IBL locals. S. H. Gaddy: As to this individual, a carpenter, the Trial Examiner finds insuffi- cient evidence in the record to establish actual discrimination against him. His own testimony establishes that he received work on October 24, when sent to the SS Rebecca by the, Carpenters' business agent. At the hearing General Counsel con- tended that "at the time he got hired he (Leon Henry, head of the Texas City ILA local) didn't know he was in the IBL." Nor is there any evidence that his member- ship in the IBL ever became known to Henry, or anyone else. And while he testified that he went to seek work later and did not obtain it, nothing in such testimony warrants an inference of unlawful discrimination. John E. Musick: As to this individual, on the basis of the present record, the Trial Examiner believes the evidence will not sustain a finding that he was discriminatorily refused hire. According to his own testimony, he made no attempt to get work at Texas City on October 20 or any other date thereafter. David L. Sandlin: This individual, an IBL member, was present at the shapeup on the morning of October 20 seeking work on the SS Rebecca. He obtained no 566 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD work, and later the same morning joined the picket line put up by the IBL. On several subsequent dates he likewise reported for work but was not hired. Finally, in November, he was given 3 days' work by an ILA gang foreman with whom he had been friendly for some years, but only after the foreman told him that he "would have to pick up the members of the ILA first." 1 The Trial Examiner con- cludes and finds that Sandlin was discriminatorily refused hire on October 20 and at various times thereafter. Louis Sandejas: This IBL member reported for the shapeup on October 20. He was not hired, and later that day joined the IBL picket line. According to his testi- mony he did not thereafter seek work at Texas City. The Trial Examiner concludes and finds that Sandejas was discriminatorily refused hire on October 20 and there- after, during the loading period of the SS Rebecca. (Other evidence indicates that customarily a longshoreman who is once hired for a gang remains in that gang until work on that ship is completed.) Robert Morales: This IBL member also reported for the shapeup on October 20. He was not hired. The Trial Examiner concludes and finds that he was discrim- inatorily refused hire on that date and thereafter, during the loading period of the SS Rebecca. W. A. Chuoke, Carl F. Murphy, H. Fischer, Joe Abschneider, Charles R. Harris, T. B. Amasom, Don D. Dick, Vincent Medina, G. C. Rico, Ralph Vargas, Joe Men- doza, L. H. Sutton, and Claude E. Cole: Although these individuals are named in the complaint as having been unlawfully refused hire on October 20 and thereafter, none was called as a witness. There is no competent evidence in the record that any of them actually appeared at any shapeup, seeking work. Since the Trial Ex- aminer construes the Board order, referred to above, as a direction to confine his findings as to alleged discrimination to matters actually "litigated at the hearing," the Trial Examiner must find that the evidence is insufficient to sustain allegations of discrimination against the individuals named above in this paragraph. In the original Intermediate Report the Trial Examiner concluded and found on the basis of the employer's capitulation to the demand of ILA that all hirings be through ILA instead of on a 50-50 basis as proposed by IBL and at first agreed to by him, that actual discrimination had been visited upon James I. Fagg, Sr., "and other IBL members," leaving the identity of "other IBL members" for determina- tion at compliance proceedings. Specific findings and conclusions now being called for, as the Trial Examiner construes the Board order, within the limitations of the record thus far made the Trial Examiner now concludes and finds that in the hiring for vessels loaded by the Respondent Southern Stevedoring at Texas City the Respondent Employers un- lawfully discriminated against James I. Fagg, Sr., James I. Fagg, Jr., David L. Sandlin, Louis Sandejas, and Robert Morales, thereby encouraging membership in ILA and discouraging membership in IBL, in violation of Section 8(a)(3) and (1) of the Act. It is also concluded and found that by virtue of being parties to the un- lawful contract invoked to cause such discrimination, the Respondent Unions (except Local 991, as to which there is no evidence that it was a party to the contract) caused the Respondent Employers to violate Section 8(a)(3) and thereby them- selves violated Section 8(b) (2) and (1) (A) of the Act. RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law, the Trial Ex- aminer recommends that the relevant conclusions and recommendations in the original Intermediate Report be modified to conform herewith, specifically with reference to the issue of discriminatory hiring. It is further recommended that pro- visions of "The Remedy" be modified to require only that the employees named in the paragraph immediately above be made whole for any loss of pay they may have suffered by reason of the unlawful discrimination against them by payment to each of them of a sum of money he normally would have earned from the date of his 'This gang foreman, Arnaud, as a witness, denied making this statement to Sandlin. In view of the surrounding circumstances of the hiring and the admission of another foreman, Hoff, that preference in hiring was given to ILA members, both points being described in the original Intermediate Report, the Trial Examiner does not credit Arnaud's denial. HOTEL, MOTEL & CLUB EMPLOYEES UNION, LOCAL 568 567 'appearance at a shapeup to the date of the conclusion of the loading of the respective ship? - Finally, it is recommended that the complaint be dismissed as to all other indi- viduals alleged therein to have been discriminatorily refused hire. 2 In determining the amount of backpay due, of course , as previously recommended the Board's policy as set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Co., 8 NLRB 440, should be observed - Hotel, Motel & Club Employees' Union, Local 568, AFL-CIO and Leonard Shaffer Company, Inc., and Arthur A. Kober Company, Inc. Case No. 4-CC-163. January 25, 1962 DECISION AND ORDER On August 22, 1961, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding finding that the Respondent 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 Intermediate Re- port attached hereto. Thereafter, the Respondent and General Coun- sel filed exceptions to the Intermediate Report, and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this proceeding to a three- member panel [Members Leedom, Fanning, and Brown]. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner with the following additions and modifications 2 We also agree with the General Counsel that an order directing the Respondent to cease and desist from engaging in such unfair labor IIn adopting the Trial Examiner's findings that the Respondent violated Section 8(b) (4) (i ) and (ii ) (B) of the Act, Members Fanning and Brown , for the reasons set forth in International Brotherhood of Blectracal Workers, Local Union 861 , at at (Plauche Electric, Inc.), 135 NLRB 250, do not rely on Washington Coca Cola Bottling Works, Inc, 107 NLRB 299, 303, enfd 220 F 2d 380, as precedent for the findings herein. Member Leedom would adhere to the principles of Washington Coca Cola, and relies on such case as additional precedent for finding a violation of Section 8(b) (4) (1) and (ii) (B) of the Act. 2 Although the Trial Examiner found that by its picketing the Respondent engaged in unfair labor practices within the meaning of 8(b) (4) (1) and (ii) (B) of the Act, he did not specifically find that by such conduct the Respondent restrained and coerced the secondary person for unlawful objectives in violation of Section 8(b) (4) (ii) (B). We believe, as contended by the General Counsel, that such specific finding is warranted, and, accordingly, find that, in its aforesaid picketing the Respondent restrained and coerced the named secondary persons In violation of Section 8(b) (4) (ii) (B) of the Act Sheet Metal Workers International Association, Local Union No 299, AFL-CIO, at at. (S. M. Eisner ( deceased ), at at., d/b/a S M Eisner and Sons ), 131 NLRB 1196. 135 NLRB No. 53.