Pacific Maritime Association

PACIFIC MARITIME ASSOCIATION 9 for the Second Region, shall , after being duly signed by the Respondents , be posted by them immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter in conspicuous places, including all places where notices to em- ployees and members are customarily posted. Reasonable steps shall be taken by Respondents to insure that such notices are not altered , defaced, or covered by any other material (b) Furnish to the Regional Director for the Second Region signed copies of said notice for posting by the above-named companies, if willing, in places where notices to employees are customarily posted. Copies of said notice , to be furnished by the Regional Director, shall, after being signed by the Respondents, be forthwith returned to the Regional director for disposition by him (c) Notify the said Regional Director, in writing, within 20 days from the date of this Intermediate Report and Recommended Order, what steps the Respondents have taken to comply herewith 23 zz In the event this Recommended Order is adopted by the Board , this provision shall be modified to read • "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith " APPENDIX A NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF PRECRETE, INC., AND CUT & BEND, INC. Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that: WE WILL NOT engage in , or induce or encourage any individual employed by Precrete, Inc., Cut & Bend, Inc., or by any other person engaged in commerce or in an industry affecting commerce, to engage in, a strike or refusal in the course of his employment to perform any services , or threaten, coerce, or re- strain the above-named Companies and persons, where an object thereof in either case is to force or require Precrete, Inc., to assign the work of placing and tying reinforce materials to employees engaged as metal lathers who are rep- resented by Local 46, Wood, Wire and Metal Lathers International Union, AFL-CIO, rather than to employees represented by another labor organization, except insofar as any such action is permitted under Section 8 (b) (4) (D) of the Act. LOCAL 46, WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION, AFL-CIO, Labor Organization. Dated-------- ----------- By------------------------------------------- (Representative) (Title) Dated ------------------- By------------------------------------------- (BRIAN DILLON , Business Representative) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York 22, New York, Telephone No Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. Pacific Maritime Association and John A. Mahoney. Case No. 19-CA-92208. December 7,1962 DECISION AND ORDER On August 24, 1962, Trial Examiner Herman Marx issued his Intermediate Report and Recommended Order in the above-entitled proceeding, finding that the Respondent had not engaged in the un- fair labor practices alleged in the complaint and recommending that 140 NLRB No. 3. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed excep- tions to the Intermediate Report, together with a supporting brief. The Respondent filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, 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 Inter- mediate 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. [The Board dismissed the comp] aint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint in this proceeding, issued by the General Counsel of the National Labor Relations Board, alleges that the Respondent, Pacific Maritime Association (herein called PMA), an association of employers, has denied employment oppor- tunities to a longshoreman named John A. Mahoney, the Charging Party in this proceeding, by causing his deregistration from a hiring register maintained by PMA and a labor organization, Local 19, International Longshoremen's and Warehouse- men's Union (herein also called Local 19 or the Union); that the reason for the deregistration was that Mahoney had "asserted rights and made claims on behalf of himself and others against Respondent and its employer members with regard to wages and safety conditions, and ... has been active as a critic of the officers" of Local 19; and that by the deregistration the Respondent has discriminated against Mahoney in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.; also referred to herein as the Act).' The Respondent has filed an answer which, in material substance, admits Ma- honey's deregistration, but denies that the action was unlawful. Pursuant to notice duly served by the General Counsel upon each of the parties, a hearing upon the issues in this proceeding has been held before Trial Examiner Herman Marx at Seattle, Washington. Each of the parties appeared through, and was represented by, counsel; participated in the hearing; and was afforded a full opportunity to be heard, examine and cross-examine witnesses, adduce evidence, file briefs, and submit oral argument. Before the close of the hearing, I granted a motion of the General Counsel to take the deposition of a witness (Howard L. Madden). The deposition is hereby made a part of the record of the hearing, and the objections incorporated in the transcript of the deposition are overruled. The Respondent has filed a motion, dated July 23, 1962, to correct the transcript of the hearing. The motion is granted in the particulars set forth therein.2 I have read and considered the briefs filed with me since the close of the hearing. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. NATURE OF THE RESPONDENT'S BUSINESS; JURISDICTION OF THE BOARD -PMA, which is organized as a California corporation, is an association of em- ployers variously engaged in stevedoring, shipping, and waterfront terminal oper- 1 The complaint is based on a charge filed with the Board by Mahoney on May 8, 1961. Copies of the complaint and charge have been duly served upon the Respondent. 2 The transcript contains Inaccurate or garbled transcriptions, in addition to those reached by the motion, but as the record adequately reflects the material facts and issues, I deem It unnecessary to correct the transcript In any additional particulars. PACIFIC MARITIME ASSOCIATION 11 ations on the Pacific coast; maintains its headquarters in San Francisco, California, and offices in other port cities, including one in Seattle, Washington; represents its members in collective bargaining and other labor-management relations with labor organizations; and is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. Members of PMA annually perform transportation services, valued in excess of $5,000,000, between points in the State of Washington and locations outside thereof. By reason of such services, and its activities on behalf of its members, PMA is, and has been at all material times, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Accordingly, the Board has jurisdiction of the subject matter of this proceeding. H. THE LABOR ORGANIZATIONS INVOLVED Local 19 is an affiliate of International Longshoremen's and Warehousemen's Union (herein also called the International). The latter negotiates and enters into collective-bargaining agreements on behalf of its local affiliates, including Local 19, with PMA, prescribing terms and conditions of employment of individuals employed by members of PMA. Both Local 19 and the International are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement The Respondent maintains that Mahoney was deregistered not for the reasons al- leged in the complaint but because he caused a disturbance on March 25, 1962, at a hiring hall jointly operated in Seattle by PMA and Local 19. An evaluation of the conflicting positions requires a summary of some contractual provisions affecting PMA and Local 19; and a description of various facets of Mahoney's employment and union history. The relevant contractual terms are embodied in a contract, dated June 16, 1951, between the International, "on behalf of itself and . . . its longshore locals," and PMA, acting for its members, affecting longshore employees of such members in the Pacific Coast States, including Washington. The agreement, which, in all respects material here, is still in effect, prescribes grievance processing machinery and hiring procedures; forbids strikes and work stoppages, subject to the proviso that long- shoremen "shall not be required to work when in good faith they believe that to do so is to immediately endanger health and safety"; and provides for the establish- ment of three types of committees, each comprised, in equal number, of union and management representatives, one such body for each port, the second for each of four territorial areas, and the third, located in San Francisco, with coastwide functions.3 The port committees are empowered, under the contract, to maintain and operate facilities for the registration of longshoremen available for employment, and for their hiring and dispatch to jobs; to "have control" over such registration lists, as specified in the agreement; to "investigate and adjudicate all grievances and disputes" in accordance with procedures set forth in the contract; and to "investigate and adjudicate any complaint against any longshoreman whose conduct on the job, or in the hiring hall, causes disruption of normal harmony in the relationship of the parties hereto or the frustration and/or violation of the provisions, working or dispatching rules" of the agreement The contract provides that in the event a port committee is unable to resolve a grievance or dispute, the issue must be referred, upon request of either the union or management members, to the appropriate area committee, which is authorized to decide the matter. If the area committee is unable to resolve the question, it must be referred for determination to an "area arbitrator." The coastwide committee is authorized by the agreement to review the decision (with to resolve the question, it must be referred for determination to an "area arbitrator." claimed to be in conflict with the contract, and to determine the matter.4 Under the terms of the contract, a committee for the port of Seattle, another for the Puget Sound area (which includes Seattle), and the coastwide committee have been in existence at all times material to this proceeding. (For convenience of "The full contractual names of these committees, stated in the order mentioned above, are "Joint Port Labor Relations Committee," "Joint Area Labor Relations Committee," and "Joint Coast Labor Relations Committee " 4I have not summarised all of the grievance and arbitration machinery provided by the contract, deeming the summary set forth to be sufficient for the purposes of this proceeding 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reference, these three bodies will be respectively termed herein the Port Committee, the Area Committee, and the Coast Committee.) Local 19 and PMA, through the Port Committee, maintain and operate a hiring hall in Seattle for the hiring and dispatch of employees to longshore jobs in the port. The hall is located on the first floor of a building that houses offices of Local 19 on its third floor. The Port Committee has established and maintains at the hiring hall two types of registration of individuals eligible for hire and dispatch to jobs through the hiring hall. One of the lists consists of men who are, as one witness put it, "fully registered" (and will be designated here, for convenience of reference, as the "regular register"); and the other is made up of men in a so-called "subsidiary work force." Those on the regular register are entitled to preference in dispatch, and a "subsidiary" registrant may not be assigned to a job if anyone on the regular list is available. Unregistered individuals, called " casuals" in the record, are also dispatched from the hiring hall, but only if no registrant is available. Job assignments are made by dispatchers stationed at the hiring hall, who are elected by the membership of Local 19, but are subject to regulation and removal by the Seattle Port Committee. PHA participates in the Port and Area Committee functions in Seattle through staff members stationed there, one of them, Darrell Cornell, PMA's Washington area manager, serving as an employer member of the Area Committee, and another, James Shields, assistant area manager and Cornell's subordinate, serving as an em- ployer member of the Port Committee. In addition to the role it plays in Port and Area Committee functions in Seattle, PMA, acting through the agency of an organization known as the Waterfront Employers of Washington (of which Cornell is president), serves as paymaster for PMA's Washington area members, providing machinery for central payroll record- keeping and wage payments to longshoremen, some of whom work for more than one employer in a pay period. It is "very common," as the evidence establishes, for long- shoremen to file wage shortage claims with Waterfront Employers of Washington. Such claims are frequently resolved by the payment agency by determining whether an arithmetical error has been made, but if not so adjusted, the claim may then be referred to the relevant port committee and processed under the grievance procedures. Mahoney began working as a longshoreman on the Seattle waterfront in 1950; was placed on the regular register in 1953; and was deregistered on or about March 30, 1961, under circumstances to be described later. He became a member of Local 19 in or about 1953, and for several years there- after was friendly with William Gettings, the International's regional director in the Seattle area, who from time to time consulted Mahoney regarding matters of com- mon concern to a sailors' union and longshore locals, doing so apparently because of Mahoney's prior experience with the sailor's organization In 1956, Mahoney ex- pressed opposition in and out of meetings of Local 19 to contract terms between the International and PMA, and since then relations between him and Gettings have been "very cool." From time to time over the years, Mahoney has filed wage shortage claims with PMA's fiscal agent on behalf of himself and other members of longshore "gangs" employed with him. On a number of occasions, these were processed through the Port and Area Committee grievance procedures, some going to arbitration In the early morning of January 29, 1957, Mahoney, while a member of a night- shift longshore gang engaged at a Seattle pier in unloading wheat from a vessel called the Sanford, protested to the gang foreman that working conditions in one of the holds were unsafe, claiming that there was danger of an exposion from wheat dust as a result of its exposure to "open cargo lights," and that the men were endangered by being required to work near certain machinery. Other members of the gang joined in the protest, but the foreman insisted that the gang proceed with the work, threatening them with discharge if they did not do so. A business agent of Local 19 was summoned at the instance of the longshoremen and he concurred in their position. The foreman nevertheless discharged the employees and they left the pier. In the afternoon of that dav, Mahoney came to the hiring hall for dispatch to another job and learned that a longshore crew was slated for dispatch to the Sanford to perform the work he and others had refused to do. He thereupon sought out Gettings, whose office is in the same building as the hiring hall, and officials of Local 19, told them that working conditions on the Sanford were unsafe, protested the plan to dispatch men to do the work, and asserted that if the gang were dispatched he would "put a picket line on there to see that there was nobody hurt " What response, if any, the union officials made to this does not appear, but it is undisputed that the new longshore gang was dispatched to the Sanford, reporting there at 7 p.m , the scheduled starting time; that at that time, Mahoney was at the pier site wearing an armband bearing the legend "Picket"; that as a result, the gang performed no work PACIFIC MARITIME ASSOCIATION 13 on the Sanford that night ; and that on the following day, January 30, the Seattle Fire Department "declared the job unsafe." On January 30, too, Cornell , on behalf of PMA, wrote to Local 19 , stating, among other things, that Mahoney had established "an illegitimate picket line ," and re- questing that his registration be suspended for 6 months , and that he thereafter be placed "on a continuous probationary status with the understanding " that he would be "automatically " deregistered if thereafter "found guilty of a contract violation." The material upshot of the matter, as evidenced by an exchange of letters, dated February 8, 1957, between Local 19 and PMA, was that they agreed that Mahoney's picketing action had not been sanctioned by the Union and had therefore been "illegitimate," and that his registration be suspended for a 90-day period. In its letter expressing its concurrence with the foregoing , PMA stated that it would move for Mahoney's deregistration should he "be found guilty of a serious contract violation" in the future . Mahoney's registration suspension for the 90 -day period followed. He was suspended again on February 24 , 1959, this time for a year, effective March 2, 1959 , by action of the Area Committee , upon the initiative of its employer- members who had moved for Mahoney 's full deregistration .5 The committee's sus- pension action was based upon its finding that on December 3, 1958, Mahoney had engaged in "fighting with other longshoremen ," had "roughed up" a supervisor of a shipping company, and had assaulted "a security guard"; upon the Sanford picketing incident 2 years earlier, for which Mahoney had previously been suspended; and upon Mahoney 's conviction , on October 3, 1958, in the United States District Court, of violation of 18 U .S.C., Sec. 659 ( dealing with embezzlement and theft and other offenses involving articles in transit in interstate or foreign commerce ). Mahoney resumed work as a registered longshoremen after the expiration of his suspension. B. The deregistration Mahoney was dispatched from the Seattle hiring hall to a job on March 25, 1961, and was required to report for work at 8 a in. He reported a few minutes late and was told by the job superintendent that his time would start at 8 : 15 a in. However, he left for his home, doing so, according to his testimony , because, while waiting for his time to start, he heard the superintendent tell a subordinate to secure a replacement for him Mahoney procured a shotgun and a box of shells at his home and proceeded to the building that houses the hiring ball and the Union's headquarters , arriving at the building about 10 a.m., then walking in and about the hiring hall premises, carrying the shotgun under his arm, with the barrel pointed obliquely downward toward the floor, and, while so doing, coming twice into the dispatch office (which is partitioned from the rest of the hiring hall ), and going into an area in the hall where some longshoremen were playing cards. The chief dispatcher, Gerald Eells, and another dispatcher were on duty in the dispatch section on the two occasions Mahoney walked into the area . He also went to the Union's quarters on the third floor of the building According to his uncontradicted testimony , he left his shotgun with a longshoreman on the street before he proceeded to the Union's quarters, re- claiming it after he left there, and then taking it to the basement of the building. While on the Union's premises, he went into Gettings ' private office there. Gettings was absent at the time .6 Offering an explanation for his presence with the gun in the building . Mahoney gave testimony to the effect that earlier that morning when he had been at the hiring hall to receive his dispatch, he had talked to a longshoreman named Wooding regarding sale of the gun to the latter; and that following failure of his job assign- ment, he procured the gun from his home, returned with the weapon to the hiring hall area in the hope of finding Wooding to complete the sale, and went in search of him in the building and its vicinity. The results in this proceeding do not hinge on the truth or falsity of this claim, for the material question is not what Mahoney's motive was in bringing the gun into I It may be noted , in passing, that the committee imposed additional disciplinary meas- ures on Mahoney , which , in my judgment , need not be detailed because they do not materially affect any issue in this proceeding 8I credit testimony by the Union 's bookkeeper that she saw Mahoney go into Gettings' office . She testified that because of a counter between her place of work and Mahoney she could see only the tipper portion of his person and did not see any shotgun In his testimony, Mahoney does not say that he entered Gettings ' office , neither does he specifi- cally deny having done so 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the building, but whether, intentionally or not, he set off a serious disturbance there. On that score , there can be no doubt that his armed presence in and about the hiring hall put individuals in the area in fear of bodily harm Eells testified that the gun "certainly looked big" to him, thus describing his apprehensiveness , and it is evident from his testimony , too, that he tried to avoid Mahoney .7 The dispatcher on duty with Eells, described by a witness as "excited and agitated ," and "obviously desperate," called the Union's quarters on the third floor over a direct line and warned a women employee of the Union at work there that "there was a man down there with a shotgun and to get out of there ." The employee, the Union's secretary, George Oldham, and a business agent of the organization , thereupon took cover in a "back room where we couldn 't be seen" and locked the door. The woman employee telephoned the police from there, and two squad cars, with four policemen in all, responded. By this time, as one of the police officers credibly put it in his testimony, "the place was in an uproar." The policemen entered the building with drawn guns, and Eells shouted to people in the hiring hall: "Get out of here. There may be some action." The officers searched the building, but were unable to find Mahoney for sometime. Finally, one of them located Mahoney in a locker room in the basement of the building and arrested him at the point of a gun. Mahoney had placed the shotgun, which the arresting policeman found not to be loaded, in a locker, and it appeared to the officer that Mahoney was hiding behind a locker when discovered. Shields, PMA's assistant area manager , received news of the episode shortly there- after that day, hearing about it from a number of persons, including Oldham and a business agent of the Union. Shields proceeded to the hiring hall later in the day and interviewed Eells regarding the episode . The chief dispatcher gave Shields an account of the disturbance , informing the latter of his feeling of apprehensiveness with a statement, as Shields testified, that he (Eells) "had stared down the barrel of this gun, and it was one of the longest barrels or the biggest barrel that he had ever seen," and telling Shields that he "had found it necessary to shout and clear the hiring hall outside the dispatching office," and that the police had come and arrested Mahoney. Shields reported to Cornell what he had learned at the dispatch office, and Cornell instructed Shields to arrange a special meeting of the Port Committee and to present there a motion on behalf of the employer members that Mahoney be deregistered . Shields tried a number of times during the course of the next few days to arrange the meeting but was unable to do so until March 30, 1961. On that date , at some point before the meeting was held, Cornell telephoned PMA's executive vice president , B. H Goodenough , who is also a member of the Coast Committee, at Goodenough's office in San Francisco, and informed him of the proposed motion, and in the course of the conversation, Cornell "reviewed" Mahoney's "background," outlining the ,incidents that had led to the prior suspensions Goodenough told Cornell that he was in accord with the deregistration proposal. At the Port Committee meeting, which convened about 2 p in., the employer members stated that on the occasion of Mahoney 's suspension in February 1959, they had taken the position that they would seek Mahoney's deregistration "if he again became involved in a serious contract violation "; and moved that Mahoney "be deregistered for causing a disturbance in the hiring hall March 25, 1961 , through threatening the chief dispatcher and others in the joint hiring hall with a loaded shot gun ." The union members voted against the motion, and as they, like the employer-members , vote as a bloc, the motion failed to carry. A regular meeting of the Area Committee was then in progress in Cornell's office, and that same afternoon , shortly after failure of the motion, Shields came to Cornell's office and informed him of the result . Cornell thereupon informed the Area Committee of the disagreement , and, upon Cornell's initiative , the motion made before the Port Committee and the disagreement were placed before the Area Committee for review. Following a caucus among themselves. the union members expressed the view that "the issue of deregistration is one which is most difficult for union men to vote on." and therefore requested that the matter be submitted to the Coast Committee "for settlement." The employer-members agreed to this procedure, and the Area Committee thereupon directed its secretary (Cornell) "to submit the disagreement to the Coast (Committee ) via teletype " Cornell carried out the instruction by sending a teletvpe jointly addressed to Goodenough and an official of the International , L. B. Thomas . informing them of the content of the motion , the disagreement in the Port Committee thereon, and the action of the Area Committee . The message was placed on the wire at 4 p in 7 Bells testified : "I had Bone into the clerk's office (in the dispatch quarters) . . I looked and opened the clerk's door to look out and he (Mahoney) was out of sight, so I stepped back in (to the dispatch office) and he was turning and going out 11 PACIFIC MARITIME ASSOCIATION 15 The only evidence in the record of what the Coast Committee did in connection with the issue submitted to it is contained in the minutes of a meeting that show that it began at 4:30 p.m. on March 30, 1961, and adjourned 15 minutes later; that at the session the Coast Committee "reviewed the recommendation of the Employers concerning deregistration of John Mahoney," and "(i)n view of (his) record" agreed that his deregistration be effective as of that date. The minutes were incorporated in a teletype jointly sent by Goodenough and Thomas to PMA in Seattle, and received there by the latter on the morning of March 31. The evidence does not establish by what means Mahoney was notified of the deregistration action, nor what physical changes were made in the regular register at the Seattle hiring hall, but there is no dispute that he was informed of the deregistration at one point or another (as is evident from a letter he wrote to PMA on February 8, 1962), and that he has had a deregistered status at the hiring hall since at least March 31, 1962. On or about May 25, 1961, the prosecuting attorney of King County (Seattle), Washington, filed information in the King County Superior Court charging Mahoney with "assault in the second degree," based upon an allegation that he had assaulted Gettings with the shotgun on March 25, 1961 (presumably, at the hiring hall). After a trial, a jury acquitted Mahoney of the accusation on January 25, 1962. Mahoney wrote to PMA on February 8, 1962, informing the latter of his acquittal, and requesting restoration of his registered status. Notwithstanding this letter, as well as one in similar vein Mahoney wrote to PMA on May 25, 1962, PMA has failed and refused to restore his registration. C. Concluding findings The General Counsel takes the position that Mahoney did not in fact create a disturbance at the hiring hall, that PMA was aware that he had not done so, and that it seized on the hiring hall episode as a "pretext" to deregister Mahoney, doing so because of long-standing hostility toward him engendered by his role in filing wage shortage claims, his opposition to contract terms between the International and PMA, and the picketing of the Sanford.8 The General Counsel's apparent deprecation of the shotgun episode flies in the face of the facts. Mahoney, as the evidence establishes, having no business with the dispatch personnel on the occasion in question, nevertheless came into the dispatch office twice carrying the shotgun; induced fear there in the two dispatchers on duty (whether intentionally or not is beside the point); and by his conduct set in motion the chain of events leading to the arrival of four policemen, who went about their business with drawn guns, and to his apprehension in the basement. Indeed, one of the General Counsel's own witnesses, none other than the arresting police officer, testified credibly in a deposition he gave that when the officers entered the hiring hall "the place was in an uproar" and "everyone" there was "very scared." Moreover, unlike the General Counsel in his brief, I perceive no overriding significance in the fact that the deregistration motion charged Mahoney with "causing a disturbance in the hiring hall . . . through threatening the chief dispatcher (Eells) and others in the joint hiring hall with a loaded shotgun," whereas Fells testified that Mahoney did not point the gun at him, and that he (Eells) does not "think" that Mahoney "It may be noted that claims advanced by the General Counsel at the hearing vary materially from the argument put forward in his brief . At the hearing, the General Counsel took the position , in substance , that the Respondent used "an alleged assault upon . . . Gettings" during the shotgun episode as a pretext for deregistering Mahoney because of his role in filing wage claims, his contract differences with Gettings , and the Sanford picketing incident . The brief, however , makes no express reference to the wage claim activities and the conflict with Gettings (although generalizing at one point that Mahoney was deregistered "because of the protected actions in which he was engaged"), but, rather, asserts that the "controlling considerations" are whether Mahoney assaulted Fells during the shotgun episode, and whether the Sanford picketing action was a pro- tected concerted activity. From this one may gather that the General 'Counsel's central thesis now is that the Respondent used an alleged assault upon Fells (and not Gettings) as a pretext to deregister Mahoney because of the picketing activity. The shift of posi- tions from those taken at the hearing to those in the brief is such that one is put to the task of speculating whether the General Counsel still maintains that the wage claims, the differences between Gettings and Mahoney , and the allegation of an assault upon Gettings support his pretext position. In the absence of an explicit disavowal by the General Counsel that such is the case , I am constrained to dispose of these matters , and do so below. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatened anyone in the hiring hall with the gun, nor "think" that he told Shields that there was such a threat. This, in my judgment, is a slender reed upon which to lean the pretext argument, for there is ample evidence in the record to warrant a conclusion that Mahoney did, in fact, cause a serious disturbance in the hiring hall, whatever Eells thought in his testimony about the threatening nature of Mahoney's conduct. What is more, it is undisputed that Eells told Shields that he "had stared down the barrel of this gun, and it was one of the longest barrels or the biggest barrel that he had ever seen." In the context of events at the time in question, I think it not unreasonable for Shields to have construed this statement by Eells as a descrip- tion of threatening behavior by Mahoney, but, in any case, whether or not Shields properly interpreted Eells' statements to him, it seems to me that the General Counsel is giving far too much emphasis to the form of the motion, and not enough to the consequences of Mahoney's armed presence in the hiring hall. As regards the shotgun episode, the important facts are that Mahoney created a serious disturbance in the hiring hall, and put the dispatch personnel there in fear of him, and that Eells, the Port Committee's dispatch supervisor, in substance, told Shields as much. It appears to me, also, that Mahoney's acquittal of assaulting Gettings is im- material. The motion to deregister Mahoney did not mention Gettings, nor is there any evidence that any allegation that Mahoney assaulted Gettings was a factor in PMA's deregistration proposal. Thus, unlike the General Counsel, I am unable to view its refusal to restore Mahoney's registration status, following the acquittal, as an indication that it had an ulterior motive in seeking his deregistration in the first place.9 Nor do I perceive any substance in the General Counsel's claim that Mahoney's Tole in filing wage shortage claims was a factor in PMA's decision to seek his deregis- tration Such claims, as noted previously, are a very common practice among long- shoremen, some filing claims repeatedly in a given year, and there is a standard procedure to process them. In fact, there are hundreds of such claims each year (for example, 903 in 1960, and 908 in 1961), some of them, like a number filed by Mahoney over the years, going through grievance or arbitration procedures. Why PMA should single out Mahoney as an object of reprisal for the claims he filed does not appear. In short, I place no stock in the General Counsel's position in the premises Very thin, too, in my judgment, is his thesis that Mahoney's opposition to contract terms between the International and PMA, and the resulting coolness between Gettings and Mahoney, played a role in the deregistration move. In the first place, there is no evidence that PMA so much as heard of Mahoney's contract opposition, and thus to adopt the General Counsel's thesis, one would have to do so by guess and surmise Secondly, Mahoney's activity in opposition to the contract took place some S years before the deregistration move in March 1961, and I think it would be stretching inference far out of reason to say that PMA was motivated by an activity so stale as the contract attitudes Mahoney voiced in 1956 in opposition to those of Gettings. Indeed, the evidence does not even establish that Gettings favored the deregistration. It is well to recall, in that regard, that the union representatives on the Port Committee opposed the deregistration motion, and that the union members of the Area Committee, whose number included Gettings, took the position that the deregistration issue "is most difficult for union men to vote upon," and declined to do so, agreeing, instead, to a proposal to submit the issue to the Coast Committee. In any case, however one may appraise these union attitudes, the basic fact is that it would be a sheer guess to conclude that PMA's deregistra- tion action stemmed in any degree from Mahoney's opposition to the contract terms or coolness between Gettings and himself. Such guesswork is forbidden the fact- finder. Two problems remain, and these are, first, whether Mahoney's activity in picket- ing the Sanford was protected by the Act, and second, whether the episode was a producing cause of the deregistration. As regards the first question, the Respondent's brief views Mahoney's action as an "illegitimate picketing activity" and, in substance, a violation of the collective- 6 Similarly, I am unable to accord any weight to evidence that guns have been brought to the hiring hall to be "raffled off," or by longshoremen to exhibit to their fellows. These activities took place not in the dispatch office, which is partitioned from the rest of the hiring hall premises, but in an area used by the longshoremen for social purposes such as card playing. Moreover, the evidence of gun displays on prior occasions does not alter the fact that Mahoney's particular conduct, including his two armed visits on March 25 to the dispatch office, induced fear in dispatch personnel and others and created a disturbance PACIFIC MARITIME ASSOCIATION 17 bargaining agreement. Countering this, the General Counsel argues, in effect, that the contract (section 10) expressly exempts from its prohibition of strikes and work stoppages refusals by longshoremen to work "when in good faith they believe that to do so is to immediately endanger health and safety"; that the work refusal by the gang of which Mahoney was a member was permissible under the contract and Section 502 of the Act which provides, in part, that "the quitting of labor by any employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment ... (shall not) be deemed a strike under this Act' ; that the refusal of Mahoney and the others in his crew to work was, by force of the relevant contractual and statutory terms, a protected concerted activity; that Mahoney's picketing was a means of seeking a similarly protected refusal by the newly dispatched gang to work in dangerous conditions; and that since what Mahoney sought was the exercise of contractual and statutory rights by such employees, his picketing activity did not violate the agreement, but was within the protected reach of Section 7 of the Act For reasons that will presently appear, it is unnecessary to make a choice between the opposed positions With regard to the second issue, the General Counsel would have it, as indicated earlier, that the Respondent seized upon the shotgun episode as a pretext to carry out a long-standing design to deregister Mahoney because of the Sanford picketing incident some 4 years earlier. The logic of this is not impressive, for there would appear to be no need to use the shotgun affair as a pretext since the "uproar" Mahoney caused in the hiring hall, for the operation and maintenance of which PMA is partially responsible, and the fear he induced in the dispatch personnel on duty there, of themselves furnished a reasonable basis for PMA's deregistration move. The fact that it acted speedily to set the grievance machinery in motion , and that the Coast Committee moved with what appears to have been considerable celerity to act upon the deregistration proposal, does not necessarily lead one to believe that PMA had an ulterior motive. In the context in which the action was taken, par- ticularly bearing in mind the "uproar" at the hiring hall, and the climate of fear Mahoney engendered there, it was not unnatural for PMA, as Cornell in effect testi- fied, to seek speedy deregistration in the interest of protecting dispatch personnel, and of orderly operation of the hiring hall To be sure, when Cornell called Goodenough and secured the latter's approval of the deregistration move, he discussed Mahoney's "background," including the Sanford picketing episode, as well as violent conduct in which Mahoney had been involved on the waterfront and his conviction of crime in the United States District Court, and it is true, also, that the teletype sent by Goodenough and Thomas to PMA at Seattle states that the Coast Committee "agrees" with the deregistration "(i)n view of (Mahoney's) record," but these factors do not lead me to conclude that the shot- gun episode was a mere pretext to cover a design to discriminate against Mahoney because of the Sanford picketing incident. No member of the Coast Committee testified, and the record does not inform us what weight it gave to any particular aspect of Mahoney's "record"-whether to the conviction or the waterfront violence or the picketing episode, or to all these factors; nor of any details of its deliberations and conclusions other than the generalization that the Coast Committee had "re- viewed the recommendations of the employers," the somewhat vague illusion to Mahoney's "record," and the statement of concurrence in the deregistration proposal. In other words, whatever there is in the record of the Coast Committee's action is too barren of detail to permit a conclusion that the picketing activity was a moving cause of its decision. To hold that it was would be, in my judgment, an essay in speculation. Moreover, PMA's course of conduct on the occasion of Mahoney's two suspensions tends to negate the pretext theory. Significantly, it did not seek his deregistration in the very disciplinary action that grew out of the picketing. One would think that if PMA were disposed to secure his deregistration because of the picketing, it would have sought it in the resulting disciplinary procedure rather -than the 6-month suspension it did seek. Even in the second disciplinary proceeding, which involved alleged acts of violence by Mahoney on the waterfront and his conviction of crime under a Federal statute, as well as the picketing episode, the representatives of PMA, although initially requesting Mahoney's deregistration, agreed to his suspension for 1 year (and his future restriction to "day work," a matter that does not affect the point under consideration). This course does not quite jibe with the General Counsel's claim that some 2 years later, following the shotgun episode, PMA seized upon that incident as a means of securing Mahoney's deregistration because of the picketing affair more than 4 years earlier. PMA has, as Cornell testified, a coastwide policy of trying to maintain a peaceful waterfront and of protecting its hiring facilities from disorder, and the dispatch 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personnel stationed there from violence or fear of it. One may reasonably conclude that the thrust of its deregistration action against Mahoney in March 1961 was to apply that policy. Certainly, that conclusion is at least as consistent with the evidence as a belief that it had any of the ulterior motives the General Counsel attributes to it, and if that is the situation, the General Counsel has failed to carry the burden of providing his case by evidence of preponderant weight. In sum, much as one may personnally regret :the curtailment of Mahoney's long- shore employment opportunities as a result of the deregistration, the evidence impels a conclusion that the General Counsel has not established that the deregistration stemmed from unlawful motives rather than from a design by PMA to protect its hiring facilities from violence, the fear of it, and disorder. Accordingly I shall recommend dismissal of the complaint.10 Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Local 19 and the International are, and have been at all times material to this proceeding, labor organizations within the meaning of Section 2(5) of the Act. 2. Pacific Maritime Association is, and has been at all times material to this proceeding, an employer within the meaning of Section 2(2) of the Act. 3. The record does not establish that the Respondent has engaged in the unfair labor practices imputed to it in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, it is recommended that the Board enter an order dismissing the complaint. 10 Section 16(a) of the collective-bargaining agreement, which prescribes the grievance machinery, contains a proviso that the Coast Committee has no "power to review decisions relative to the methods of maintaining registration lists, or the operation of hiring halls." Section 16 ( g) provides that " ( n)othing in this section ( 16) shall prevent the parties from mutually agreeing upon other means of deciding matters upon which there has been disagreement." The issues here require no determination as to the power of the Coast Committee to review or take the action it did with respect to Mahoney. The results here would be the same whether or not its action was ultra vires, and by reaching the conclu- sions set forth above, I intend no implication that I have passed on the reach of the Coast Committee's review or other authority in Mahoney 's case. General Instrument Corporation and Local 472, International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case No. 22-CA-1292. December 10, 1962 DECISION AND ORDER Upon a charge and first amended charge filed by Local 472, Inter- national Union of Electrical, Radio and Machine Workers, AFL-CIO, herein called Local 472, the General Counsel of the National Labor Relations Board by the Regional Director of the Twenty-second Region issued a complaint dated August 3, 1962, against General Instrument Corporation, herein called Respondent, alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as 140 NLRB No. 6.