International Marine Terminals, Inc.

-588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD history was too brief, as opposed .to the earlier history of .separate bar- gaining, to bar a petition seeking the single-employer unit. Accord- ingly, I concur in the decision to affirm the Regional Director's unit finding and direct an immediate election. CHAIRMAN McCuLLocn and Mi nnn RorrERs took no part in the consideration of the above Decision on Review. International Marine Terminals, Inc. and John H. Jemiolo . Local 928, International Longshoremen's Association, AFL-CIO and International Longshoremen's Association, AFL-CIO and John H. Jemiolo International Marine Terminals, Inc. and Edward L. Jemiolo Local 928, International Longshoremen's Association, AFL-CIO and International Longshoremen's Association, AFL-CIO and Edward L. Jemiolo International Marine Terminals, Inc. and John Murphy .Local 928, International Longshoremen 's Association, AFL-CIO and International Longshoremen's Association, AFL-CIO and John Murphy International Marine Terminals, Inc. and Thomas Murphy Local 928, International Longshoremen 's Association, AFL-CIO and International Longshoremen's Association, AFL-CIO and Thomas Murphy. Cases Nos. 3-CA-1520-1, 3-CB-486-1, 3-CA- 1520-2, 3-CB-486-Pd, 3-CA1520-3, 3-CB-486-3, 3-CA--1520-4, and 3-CB-486-4. June 13, 1962 DECISION AND ORDER On November 30, 1961, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in certain unfair labor prac- tices and recommending that the complaint be dismissed, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 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 In- termediate Report, the exceptions and briefs , and the entire record in this case, and hereby adopts the findings, .conclusions, and recom- mendations of the Trial Examiner, to the extent consistent with our opinion hereinafter. 137 NLRB No. 70. INTERNATIONAL MARINE TERMINALS, INC . 589 We agree with the Trial Examiner that Respondent Company and Respondent Unions did not violate Section 8(a) (1) and (3) and 8(b) (2) and (1) (A) of the Act, respectively, by entering into and maintaining an unlawful hiring arrangement, understanding, or practice. The Respondents are parties to a collective-bargaining agreement which provides for the exclusive hiring of longshoremen through "the Union." The term "The Union," according to the contract, refers to the International Longshoremen's Association, AFL-CIO, and Local 928, International Longshoremen's Association, AFL-CIO. The contract provides for hiring preference in the following order and in the precise terms set forth below : Group 1. Employees with at least 4 or more years in the long- shore-trade in the area, who have passed a journeyman's exami- nation, and have been employed at least one year out of the last 4 years under a contract between their then employer and the Union. Group 2. Employees with at least 4 years in the longshore trade in the area, and who mave passed a journeyman's examination. Group 3. Employees with at least 2 years experience in the longshore-trade in the area, who have passed a journeyman's examination and who has [sic] been employed at least 6 months in the last 3 years under a contract between his employer and the Union. Group 4. Employees with at least 1 year experience in the longshore trade in the area and who have passed a journeyman's examination. Group 5. All other applicants. In practice, the Respondent Union established two lists of em- ployees for referral purposes, based on questionnaires distributed to job applicants attending a shapeup. These lists were composed of: (1) Men with 4 or more years' experience on the waterfront; and (2) men with less than 4 years' experience on the waterfront. In the New York Times case,' the Board held that somewhat similar contractual provisions were not unlawful. For the reasons stated in that case, Chairman McCulloch and Member Fanning are of the opin- ion that the contract criteria for job referral based on past work experience under a union contract are not in the instant case un- lawful. Thus the hiring criteria herein, as in the New York Times case, also relate to an appropriate consideration in the selection of employees, namely, experience in the area obtained while working for members of the employer-association involved. Moreover, there i New York Mailers' Union, Local 6 International Typographical Union, AFL-CIO (New York Times Company, and Pubi8her8' Association of New York City), 133 NLRB 1052. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is no evidence in the instant case that the required work experience necessarily was obtained under contracts containing union-security clauses. If it had been demonstrated that the experience in question necessarily had been obtained under contracts containing such clauses, there would be a basis for finding in the present case discriminatory preference for union members. As an additional ground for finding no violation here, Chairman McCulloch and Member Fanning rely on the fact that the aforesaid contract provisions were never put into practice. Member Leedom joins them in this ground only. Thus, under the parties' practice, placement on referral was determined exclusively by years of experi- ence in the trade; and no consideration appears to have been given to previous employment under contracts with the Union. We note, moreover, that it does not appear that the contract in question was ever signed; and it also appears that the revision of the hiring list based on years of experience alone occurred prior to the filing of the unfair labor practice charge. The failure to enforce the contract has dissipated any possible discriminatory effect of the provision in the contract and distribution of questionnaires which sought informa- tion only as to years of waterfront experience was actual notice to employees of the true intention of the parties not to enforce the hiring preference provisions here in issue 2 As we have found that Respond- ents did not commit unfair labor practices we shall dismiss the complaint. [The Board dismissed the complaint.] MEMBERS RODGERS and BROWN took no part in the consideration of the above Decision and Order. -Cf. Nassau and Suffolk Contractors' Association, Inc, et at., 118 NLRB 174, 175. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Charges having been issued and served in each of the above-entitled cases; an order consolidating said cases, a complaint and 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) and (3) and 8(b) (1) (A), (2), and (5) of the National Labor Relations Act, as amended, was held in Buffalo, New York, on October 17 and 18, 1961, before the duly desig- nated Trial Examiner. At the hearing all parties were represented by counsel and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have been received from General Counsel and the Respondent IMT. Disposition of the Respondent's motions to dismiss the complaint, upon which ruling was reserved at the close of the hearing, is made by the following findings, conclusions, and recommendations. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: INTERNATIONAL MARINE TERMINALS, INC. 591 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT EMPLOYER International Marine Terminals, Inc., is a Delaware corporation, with offices and longshoring and stevedoring facilities in Buffalo, New York, where it is engaged primarily in the loading and unloading of ships engaged in transporting goods in interstate and foreign commerce. During the 12 months before issuance of the complaint this Respondent derived a gross revenue of more than $200,000, by furnishing services to firms, shippers and transportation companies, and interstate and international common carriers operating, between and among the various States of the United States and between various States and foreign countries. This Respondent admits and it is found that it is engaged in commerce within the meaning of the Act. The Respondent Unions do not contest the Board's com- merce jurisdiction. II. THE RESPONDENT UNIONS Local 928, International Longshoremen's Association, AFL-CIO, and International Longshoremen's Association, AFL-CIO, are labor organizations within the mean- ing of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICES A. Setting and major issues The events at issue arose shortly after the Respondent Employer began stevedoring operations on the Buffalo waterfront in the spring of 1960. In brief, the three chief issues raised by the complaint are: (1) Whether or not the Respondents have "entered into" and "maintained" an unlawful hiring "understanding or practice"; (2) whether or not the four Charging Parties (John and Edward Jemiolo and John and Thomas Murphy) were unlawfully "denied employment"; and (3) whether or not the Respondent Local's initiation fee of $125 is unlawfully "excessive or discriminatory. B. Facts relevant to the hiring issues in general Facts here summarized are drawn from undisputed evidence: (1) It appears that not until 1959 did the Buffalo waterfront become active as a port for the handling of general cargo. The first company that year to open general cargo stevedoring operations was the Pittston Stevedoring Company. (2) The Respondent Employer, hereinafter referred to as IMT, began its steve- doring operations in Buffalo in April 1960. Shortly before starting company officials met with representatives of the Respondent Unions to discuss prevailing wages and working conditions. About a week before April 23, the date when IMT worked its first ship, its representatives requested and received from union representatives a list of longshoremen who had worked for Pittston. (3) On April 23 and thereafter until mid-August IMT hired at its own docks from this "Pittston" list at shapeups conducted by an IMT representative (4) In July IMT and the Respondent Unions entered into a collective-bargaining contract.' (5) This contract contains the following provisions pertaining to employment and relevant to specific issues raised by the complaint: (Art. 7) Employment. SECTION 1. The Company agrees that during the period that this agreement is in effect. it will procure all longshoremen, tractor drivers, checkers, watchmen and winchmen from the employment office of the Union. provided, however, that the prospective employees are satisfactory to the Company, the Company reserving the right at all times to reject any employee in its sole discretion. SEC. 2 In referring employees to the Company, the Union will refer com- petent and dependable applicants in the following order of priority. Group I Employees with at least 4 or more years in the longshore-trade in the area. who have passed a iourneymari s examination. and have been employed- at least one year out of the last 4 years under a contract between their then- employer and the Union. 'Although for reasons immaterial here the contract was not reduced to writing until, September, these appears to be no question that it became effective in July 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Group 2. Employees with at least 4 years in the longshore trade in the area, and who have passed a journeyman's examination. Group 3. Employees with at least 2 years experience in the longshore-trade in the area, who have passed a journeyman 's examination and who has [sic] been employed at least 6 months in the last 3 years under a contract between his employer and the Union. Group 4. Employees with at least 1 year experience in the longshore trade in the area and who have passed a journeyman's examination. Group S. All other applicants. SEC. 3. The word "area" as used herein shall mean the Country of Erie... . SEC. 4. In referring applicants to the Company, the Union agrees that it shall do so without discrimination and without regard to union membership or non- membership of any applicant who meets the above requirements . The Union further agrees to maintain, administer and operate its employment of office in accordance with the law and assume full responsibility therefor. SEC. 5. In the event that the Union shall fail or be unable for any reason to furnish the Company with employees required by it, the Company shall be free to fill any such vacancy from any source. The contract also provided for the setting up of a permanent "appeals board," upon which the employer, an impartial arbiter, and the Unions were to be represented, to pass upon any grievance raised by any applicant as to his placement in or exclusion from any of the "groups" established in article 7. (6) Early in August, following the reaching of the above-noted agreement, and in preparation for the opening of a union hiring hall, the Unions asked for and obtained from IMT a list of all employees it had hired up to that time with their hiring dates noted. (7) A union steward then copied into a hiring book the names appearing on this IMT list, in order of the hiring dates. (8) About the same time the Unions distributed among longshoremen appearing for shapeups a questionnaire soliciting information as to the number of years each applicant had worked in any capacity as a longshoreman in that area. (9) Based upon information thus received from job applicants themselves, a committee composed of union officials determined the group placement of the appli- cant upon the hiring list-those with 4 years or more of longshore experience in group 1, and those with less experience in group 2. (10) The method of shapeup hirings thereafter was adjusted to this grouping. The same hiring book, prepared from the IMT seniority list, was used. The steward drew a green line through the names of applicants who had less than 4 years' experience- these having been classified by the committee as being in group 2. At shapeups he called first, in the seniority order as listed in the book, all names through which no green line had been drawn, and then, also in seniority order, the names through which the line had been drawn. (11) There is no evidence that any longshoreman or job applicant has formally raised as a grievance with IMT his placement in either of the two groupings so far established. (12) There is no evidence that any longshoreman or applicant was, on the basis of waterfront experience, improperly placed in group 2 instead of group 1. (13) There is no evidence in the record as to whether any or all individuals listed in group 1 were or were not union members. C. Conclusions drawn from the foregoing facts In his brief, General Counsel says: It is respectfully submitted that from the April 23, 1960, initial date of stevedore hiring by IMT, and continuing into the Sec. 10(b) period (May 3 as to IMT and May 10 as to the Unions), the Unions imposed upon IMT a hiring arrange- ment, in which IMT acquiesced, over which the Unions maintained unilateral control and which control was not exercised in a nondiscriminatory manner. He further states that although the Supreme Court revoked the Mountain-Pacific doctrine (in Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America V. N.L.R.B. (Los Angeles-Seattle Motor Express), 365 U.S. 667) "it is still possible for the Board to infer from the nature of a contract clause, or an oral understanding or arrangement, an intent to give hiring preference on a basis of union status." As to what is "still possible for the Board to infer," the Trial Examiner is reminded of a remark made to him by an artist in Berlin, who had been active in the under- INTERNATIONAL MARINE TERMINALS, INC. 593 ground: "Nicht ist unmoglich"-"Nothing is impossible." Yet while he must agree with General Counsel that the possibilities of what the Board may "infer" as to "intent" are unlimited, The Trial Examiner doubts if the Board is likely to find a practice discriminatory merely on the ground that it was "intended" to be so. On the contrary, in a recent Board decision (Local 367, International Brotherhood of Electrical Workers, AFL-CIO (Easton Branch, Penn-Del-Jersey Chapter, National Electrical Contractors Association), 134 NLRB 132) the three-member panel, con- sisting of Chairman McCulloch and Members Rodgers -and Leedom, adopted without comment, in a somewhat similar case, the same Trial Examiner's conclusion which followed his finding that no actual discrimination had occurred: "Whether or not an unlawful motive existed is immaterial. Our jails would bulge and hangmen would be overworked if motive warranted conviction." As to General Counsel's first contention, quoted above, the Trial Examiner finds not the slightest evidence that at any time while IMT was conducting the shapeups through its own representative was any applicant discriminated against, whether because of union pressure, union membership or nonmembership, or for any other reason. Nor does General Counsel cite any specific incident of discrimination in the complaint or in his brief. Concerning the hiring provisions in the contract entered into in July, General Counsel points to none which he claims to be, per se, unlawful. In substance, General Counsel appears to argue that because the meaning of certain group cri- teria is unclear, such lack of clarity "manifests a clear intent to give preference for hiring on the basis of union status." From this basis General Counsel then argues that an "arrangement and practice" unlawful in terms of 8(a)(1) and (3) and 8(b)(1)(A) and (2) actually existed. Neither logic nor the record, in the opinion of the Trial Examiner, warrants the conclusion sought. It is here noted that similar group criteria were contained in the contract in- volved in the recently decided Electrical Workers case cited above, and there Gen- eral Counsel specifically disclaimed that the contract was unlawful. In short, the Trial Examiner concludes and finds that evidence is insufficient to sustain General Counsel's contentions as to the unlawfulness of the hiring practices in general or the contract provisions or procedures pursuant thereto. D. Facts relevant to specific claims of discrimination (1) All four of the individuals filing charges, named in section A, above, at the time of the hearing were only part-time stevedores, having full-time jobs with other employers. ,(2) In mid-August 1960, at the time the hiring list was regrouped according to number of years of service on the waterfront, none of the four had had 4 years of such experience. (3) Upon the regrouping, each of these four were placed in group 2-but in the same relative position in that group as to their seniority with IMT. (4) When three of the four appeared for shapeup on the morning of September 9, 1960, their names were not called. There is no evidence that John Murphy, one of the complainants, was at the hiring hall that morning. (5) It is undisputed that Thomas Murphy, one of the complainants, was No. 127 on the hiring list,2 and that the other three had, because of their lower seniority standing, higher numbers on the hiring list. It is likewise undisputed that only some 80 or 90 longshoremen were needed on the morning of September 9. (6) General Counsel urges no discrimination on any other date than September 9 as to these or any other individuals. (7) Each of the four testified that he had worked on the docks at various times since September 9-apparently being called as needed from their standing in group 2. E. Conclusions as to the foregoing facts In the opinion of the Trial Examiner, the evidence is insufficient to support a find- ing of actual unlawful discrimination in the failure to hire any one of the four indi- viduals involved on September 9, 1960, or at any time thereafter. One was not at the hiring hall, on September 9, so far as the record shows. The others were not reached and called only because not enough men were ordered by the Company. Since it has previously been found that the regrouping of the hiring list was neither unlawful per se nor unlawfully discriminatory as applied, it clearly may not be maintained that the failure to call the names of the three complainants on 2IIe was at the top of group 2 649856-63-vol. 137-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the morning of September 9 was unlawfully discriminatory, merely because the re- grouping had placed them farther down on the hiring list. F. The issue of the initiation fee In July 1960, Local 982 raised its initiation fee from $25 to $125. General Counsel urges that this increase was "excessive " and in violation of Section 8(b) (5) of the Act.3 There is no dispute as to the fact of the increases . The Trial Examiner is unable to agree with General Counsel's claim that the new fee is "excessive or discrimina- tory under all the circumstances." Evidence fully establishes that at the time Local 928 undertook to implement the contract just reached, to set up and operate a hiring hall, a cons derable increase in its expenses was reasonably to be anticipated It was then a small local-some 50 or 60 members. Despite the increase its membership appears to have about doubled-and there is not the slightest evidence that any applicant was prevented from joining because of the increase in the initiation fee. It is undisputed , also, that ILA initiation fees for general cargo locals in the east coast area range from $50 to $300, and at gulf coast ports from $200 to $500. In short, the Trial Examiner does not believe General Counsel has presented sufficient evidence to sustain this allegation of the complaint. RECOMMENDATION Having found that the preponderance of evidence fails to sustain the allegations of the complaint as to unlawful acts on the part of any of the Respondents, the Trial Examiner will recommend that the complaint be dismissed in its entirety. 3 This section makes it an unfair labor practice for a labor organization "to require of employees covered by an agreement authorized under subsection ( a) (3) the payment, as a condition precedent to becoming a member of such organization , of a fee in an amount which the Board finds excessive or discriminatory under all the circumstances . . " Kelly & Picerne, Inc. and Providence, Pawtucket and Central Falls Carpenters' District Council a/w United Brotherhood of Carpenters and Joiners of America . Case No. 1-CA-3169. June 13, 1962 SUPPLEMENTAL DECISION AND ORDER On May 15, 1961, the Board issued its Decision and Order in the above-entitled case in which it found, inter alia, that the Respondent, Kelly & Picerne, Inc., violated Section 8 (a) (3) of the Act by subcon- tracting its rough carpentry work and discharging its carpenters because of their union membership and activities.' To remedy this violation, the Board ordered the Respondent to resume its rough car- pentry operations and to offer reinstatement to these carpenters without prejudice to their seniority or other rights, and to make them whole for any loss of pay suffered as a result of the discrimination practiced against them. Thereafter, the Board petitioned the Court of Appeals for the First Circuit for enforcement of its Order and, on February 14, 1962, the court rendered its decision in this matter. In its opinion, the court 1131 NLRB 543. 137 NLRB No. 77.