Local 25, Marine Division, IUOE

LOCAL -25, MARINE: DIVISION, IUOE 519 than to rely upon the Union's chances of securing better working conditions and, other benefits for them , or otherwise attempt to wean our employees away from the Union. ` WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named labor organiza- tion, or any other labor organization , to bargain collectively through repre- sentatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. All our employees are free to become or to remain members of the above-named Union or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any labor organization. EDISON BROTHERS STORES, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) LEEDS SHOE STORE, VALLEY FAIR, INC. Employer. Dated- ------------------ By-----------------=------------------------- (Representative ) (Title) This notice must remain posted for 60 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, 830 Market Street, San Francisco, California, Telephone No. 556-6721, if they have any questions concerning this notice or compliance with. its provisions. Local 25, Marine Division , International Union of Operating Engineers, AFL-CIO and American Dredging Company. Case No. 4-CB-941. November 6, 1964 DECISION AND ORDER On May 27, 1964, Trial Examiner Harold X. Summers issued his Decision in the above-entitled proceeding, finding that 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 attached Trial Examiner's Deci- sion. Thereafter, the Respondent, the Charging Party, and the Gen- eral Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record 149 NLRB No. 51. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this case, and -hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, subject to the modification set forth below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order, the Order recom- mended by the Trial Examiner with the following modification, and orders that Respondent Local 25, Marine Division, International Union of Operating Engineers, AFL-CIO, its officers, agents, repre- sentatives, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order as modified below : 1. Delete subparagraph (c) of paragraph 1 and substitute the fol- lowing : "(c) Restraining or coercing American Dredging Company in the selection of A. Victor Cherbonnier as its representative for the purpose of handling grievances." 2. Add the above-substituted paragraph to the indented para- graphs in the attached notice -to the Trial Examiner's Decision marked "Appendix." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was heard upon the complaint l of the General Counsel of the National Labor Relations Board, herein called the Board, alleging that Local 25, Marine Division, International Union of Operating Engineers, AFL-CIO, here- in variously called Respondent or Local 25, had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b)(1)(A), 8(b)(1)(B), and 8(b)(2) of the National Labor Relations Act, herein called the Act. Re- spondent's answer to the complaint admitted some of its allegations, denied some, and disclaimed knowledge of others; in effect, it denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Exam- iner Harold X. Summers at Philadelphia, Pennsylvania, on October 30 and 31, November 12 through 15, December 2 through 5, and 16 and 17, 1963. All parties were afforded full opportunity to examine and cross-examine witnesses, to argue orally, and to submit briefs. Briefs filed by the General Counsel, the Charging Party, and Respondent have been fully considered. Upon the entire record 2 in the case, including my evaluation of the witnesses based upon the evidence and my observation of their demeanor, I make the following: FINDINGS OF FACT 1. COMMERCE The Charging Party, American Dredging Company, herein variously called American or the Company, is, and at all times material herein has been, a 1 The complaint was issued September 18, 1963 The charge Initiating the proceeding was filed June 18, 1963 2A motion to correct the transcript was filed by the Charging Party on January 29, 1964, and a stipulation for correction of the record, signed by all parties, was filed on March 9, 1964 On March 12, 1964, I Issued an order to show cause why the transcript of the hearing should not be corrected in specified respects, the proposed corrections in which order accorded in some respects but not in others with the corrections sought by the motion and the stipulation No good cause to the contrary having been shown, the corrections indicated in the order to show cause, which is received in evidence as Trial Examiner's Exhibit No 1, are hereby ordered made. The motion to correct is hereby granted to the extent that it seeks corrections which have been made by this order; in all other respects, it is denied. LOCAL 25, MARINE DIVISION, IUOE 521 Pennsylvania corporation with its principal office and place of business at Philadel- phia, Pennsylvania, from which location it is and has been engaged in performing dredging operations; during the year preceding the issuance of the instant com- plaint, in the course of its operations , it performed services valued in excess of $1 million on inland waterways located outside the Commonwealth of Pennsylvania, including ports on the Delaware River and the Chesapeake and Delaware Canal. The Company is an employer engaged in commerce within the meaning of the Act. IL THE UNION Respondent is, and at all times material herein has been, a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background American performs dredging operations in or about inland waterways-prima- rily rivers, bays, sounds, harbors, and occasionally, sheltered areas at oceanside-in Pennsylvania, New Jersey, Delaware, Maryland, Connecticut, and Ohio, for the Federal Government and State agencies and for private corporations such as railroads or power companies. It excavates or deepens channels, fills or otherwise aids in the redevelopment of land, and lays submarine pipelines ; it engages in derrick and salvage operation; and, as a byproduct, it runs a sand and gravel plant. The dredging equipment used is primarily floating equipment, although there are onshore facilities on occasion . (Dredging material is either loaded onto scows or directly ashore.) The floating equipment is not self-powered, being moved when necessary by American's or by outside contractors' tugs. American deals with, and for a long period of time has dealt with, three unions as representatives of one or another group of its employees-Local 825 of the International Union of Operating Engineers, Local 56 of Industrial Union of Marine and Shipyard Workers, and Respondent Local 25. Local 25 represents-in general terms-American's waterway dredging em- ployees, whether afloat or engaged in related work ashore. Its (or its predeces- sor's) 3 relationship with American has extended over a period of at least 20 years. The latest collective-bargaining agreement between the two, dated Jan- uary 30, 1963, and executed on February 20, 1963, is effective by its terms from October 1, 1962, to September 30, 1965, and from year to year thereafter in the absence of specified termination' action by either party.4 Respondent, with its principal office at Brooklyn, New York, represents em- ployees in dredging and incidental work along the east coast of the United States and its tributary waters, from the Canadian boarder to Texas. Among other locations, it maintains an office and a hiring . hall in Philadelphia, Penn- sylvania, which services American and other dredging companies in the area; this is the sole installation involved in this proceeding. Respondent has a membership of 3,500. Each member has a "book classifica- tion"-i.e., engineer's book, oiler's book, etc.-which is subject to change upon the member's request and upon the attainment of experience (on other than a casual or emergency basis) in a higher classification. The higher classifications pay higher wage rates, and there are differences in the initiation fees related to the various "book classifications." B; The issues The complaint, answer, and arguments at the hearing and in briefs frame the basic issues in this case . They are twofold: (1) Whether Respondent, during the 6-month period immediately preceding the filing of the instant charge and up to the time of the hearing, maintained, enforced, and otherwise gave effect to an arrangement or practice in the operation of an exclusive hiring hall whereby membership in Respondent was a condition of referral for employment by American. 3 During or about 1960, Respondent suceeded the now defunct Local 825D of the same International. 4 Hereinafter, this will be referred to as the current or 1962-65 contract 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Whether Respondent , since on or about March 1 , 1963, restrained or coerced American in its selection of a representative for the purpose of collectively bargain- ing about, or adjusting, grievances.5 C. The hiring hall-in general For a number of years Respondent has operated a hiring hall at Philadelphia which serves as a source of labor supply for American and other employers in the area . (American is by far the largest user. ) Although the number varies depending on many factors , 600 or 700 individuals customarily use the hall as their means of finding employment. The 1962-65 collective-bargaining contract between American and Respondent contains the following provision: ARTICLE IV-HIRING HALL In the employment of workmen covered by this Agreement, the follow- ing provisions shall govern: (a) The Union shall establish, maintain and keep current an open employ- ment list for the employment of workmen competent and physically fit to perform the duties of classifications covered by this Agreement . Such list shall be established , maintained and kept current on a nondiscriminatory basis and shall not be based on or in any way affected by Union membership, Union By-laws, Rules, Regulations, or constitutional provisions or any other aspect or obligation of Union membership , policies or requirements. (b) Whenever desiring to employ workmen in the classifications specified in Article XI of this Agreement within the territorial zone specified in Article I of this Agreement the Company shall call the Union Hiring Hall and the Union shall promptly refer to the Company , as soon as available, but in no event later than seventy-two (72) hours, exclusive of Saturdays and Sundays, workmen who are competent and physically fit to perform the duties of the classification, or classifications , needed by the Company. The Company has the absolute and unconditional right to reject any workmen referred to it by the Union . If, for any reason, the Union is unable or fails to refer qualified and competent workmen within seventy-two (72) hours as aforesaid the Company may obtain workmen from any available labor source. (c) The Union shall refer to the Company only workmen whose names appear on the Open Employment List and in so doing shall be governed by the following criteria. 1. If the Company requests from the Open Employment List a workman by name who has had previous employment with the Company within the past two years , he shall be referred by the Union unless he is then working for another company or he is unwilling to accept the Company 's employ- ment. When the Company requests the workman by name he shall be deemed competent and physically fit to perform the duties of his classification. 2 If the Company does not request a particular vacancy as provided in subparagraph 1 above, then the referral shall be by classes and priorities in the following order: First: Workmen competent and experienced in the performance of work in the classification to be filled and who have had employment 5 The complaint alleged , and the answer denied , that since March 1, 1963 , Respondent had restrained and coerced American in its selection of a representative "for the purposes of collective bargaining" and to adjust grievances Since it was apparent from other allegations of the complaint that the last collective-bargaining agreement , the 1962-65 agreement, had been executed between Respondent and American prior to March 1, 1963, Respondent assumed-justifiably, I find-that it was being called upon to defend 'against alleged coercion and restraint bearing only on American 's selection of a representative to handle grievances and that the use of the term above quoted was merely a term of art. Counsel for the General Counsel sought to amend the complaint to add an allegation of restraint and coercion upon American , during January and February 1963, in Its- selec-tion of an agent for the purpose of negotiating the collective -bargaining agreement earlier described I denied the motion to amend, coming as it did on the fourth day of hearing, on the ground that it constituted too great a change of theory too late in the proceeding Nevertheless , as will be seen , I received testimony concerning Respondent's efforts to limit the involved representative's participation In negotiating the 1962-65 contract and have given it significance as background in my determination of the issues herein. LOCAL 2 5, MARINE DIVISION, IUOE 523 experience with a company making contributions to Local 25, Marine Division, International Union of Operating Engineers Welfare Fund. The order of referral within the class of workmen, known as Experienced Class, shall be in priorities of registration of the applicant in the Hiring Hall. Second: Workmen competent and able to perform the work in the classification to be filled but who have had no employment experience with any company making contributions to Local 25, Marine Division, International Union of Operating Engineers Welfare Fund. The order of referral within this class of workmen, known as Novice Class, shall be in priorities of registration of the applicant in the Hiring Hall. (d) If any individual files a written complaint with either the Company or the Union that he has been discriminated against in the application of the Hiring Hall provisions of this Agreement said complaint, if not adjusted to the satisfaction of all parties within five (5) working days shall be referred to arbitration as hereinafter set forth in Article VI Sec. 2 of this Agreement. All complaints in order to be subject to such arbitration must be filed with either the Company or the Union within ten (10) days from the date of the alleged discrimination. The same provision, with irrelevant differences in wording, appeared in the last expired collective-bargaining agreement between the parties.6 No contention is here made that the hiring hall provision, as such, is unlawful. In fact, as I see it, all parties are in agreement that, if the hiring hall provision were implemented as written, there would be no occasion for the instant controversy.? It here becomes necessary to discuss in some detail the general operation of the hiring hall by Respondent and the hiring procedures of American. In setting forth these facts, I am, for the moment, disregarding alleged deviations by Respondent. I merely describe a process which Respondent contends is invar- iably adhered to, which the evidence herein demonstrates to be at least the general method employed, and to which, if it were invariably followed, the General Counsel would take no exception. A prospective applicant for employment with American (or with other employers served by Respondent) presents himself at Local 25's hall, where he is referred to Sophie Ginsberg, the business agent's secretary and Respondent's representative for the day-to-day administration of the hiring hall.8 If he has no history of prior employment in the industry,a she adds his name to a list kept on legal-size, yellow ruled sheets, noting thereon his address and telephone number and, on occasion, his relevant work experience, if any. If he does have a history of prior employment in the industry, she pulls the white 3- by 5-inch card (sometimes called an information card and here referred to as an out-of-work card) bearing his name, place to be reached, union membership status, and prior history of work registrations, referrals, and employment from a workbox containing such cards arranged in alphabetical order; she notes thereon the fact of his current registration for employment and "slots" the card, in one or another of several "visible index" trays or bins, at the bottom of the group of out-of-work cards of those in the same work classification as the present registrant. The names on the yellow sheets and those on the out-of-work cards contained in the trays constitute the open employment list referred- to in section (a) of the hiring hall article quoted above: those on the yellow sheets are considered to be in the novice class referred to in section (c)2, second, and those whose names appear on out-of-work cards are considered to be in the experienced class referred to in section (c)2, first. (After an individual who has theretofore been listed 8 That agreement was effective, by its terms, from October 1, 1959, to September 30, 1962 7 This is not to say that they are in complete agreement as to what the written words mean. As will be seen, they are not. 8I find Ginsberg to be an agent of Respondent for purposes of maintaining the open employment list herein described, of receiving requests for employees from American, and of making job referrals. Specifically, by reference to the 1962-65 contract, I find this to be interpreted by Re- spondent, if not by all parties, as meaning employment by an employer-American or other-who makes contributions to Respondent's welfare fund. No attack is here made on this interpretation or its legality. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only on the yellow sheets has been employed in the industry and thereafter reappears at the hiring hall to register for further employment, a white card is prepared for him and he is considered part of the experienced class.) When the Company desires to fill an existing vacancy in any of the job categories covered by the collective-bargaining relationship between it and Re- spondent, it communicates with Respondent. Typically, the contract is made by Clarence B. Hankins, American's personnel director, who calls Ginsberg. He either requests, by name, a person who has had previous employment with the Company within the past 2 years-a privilege granted by virtue of section (c)1 of the hiring hall article-at the same time giving the job classification in which there is a vacancy , or, without designating a name, he asks for someone to fill a vacancy in a specified job classification. If Hankins requests a person by name, Ginsberg refers that person to American if his name appears on the open employment list.-10 If the request is not by name, Ginsberg refers the person whose name is at the top of those in the tray containing the cards in the appropriate job classification. The actual referral takes the following form: Ginsberg communicates with the person to be referred by telephone or otherwise; 11 he reports at the hiring hall, there to receive a referral slip. (His out-of-work card is then put back into the general workbox.) He takes the slip to the Company's personnel office where he is given instructions for reporting to work and where the referral slip is exchanged for a workslip which authorizes him to go onto the job. D. The hiring hall-alleged unlawful conduct The General Counsel seeks to demonstrate the existence of an unlawfully discrim- inatory arrangement or practice in Respondent's operation of the hiring hall by (1) evidence as to specific acts of alleged discrimination and (2) evidence as to statements and actions of agents of Respondent bearing upon the general operation of the hall. 1. Specifics The names of a number of individuals and the details surrounding a number of in- cidents figured in testimony offered to show specific instances of discrimination. Alfred DiEttore: Having been dispatched by Respondent upon the request of the Company for a deckhand on the dredge Camden, Alfred DiEttore 12 was employed by American for 2 or 3 months in the latter part of 1962.13 On May 13, 1963, Hankins requested Joseph Ehrmann,34 who had just replaced Vincent Motzel as Local 25's business agent in the Philadelphia area,15 to refer DiEttore as a deckhand on the tug Augusta. Ehrmann, on the basis of notations on DiEttore's workcard, said that DiEttore had refused a referral to American during the preceding month and had thereupon been dropped to the bottom of the list; because, he said, others were ahead of DiEttore on the list, DiEttore would not be referred.16 "Provided further, of course-and I make this finding by reference to the contract-he is not then working for another employer and he is willing to accept employment with American. 11 A person with whom communication cannot be established-no answer, wrong or changed telephone number, or the like-is at least temporarily passed over His out-of- work card is pulled from the active open employment list and placed among the cards of others in the same situation ii Never a member of Respondent. 13 Note that the 6-month period prior to the filing of the instant charge commences on December 19, 1962 Over the objections of Respondent that testimony of events occurring prior to that date was barred herefrom by virtue of Section 10(b) of the Act, I did receive such testimony, and I have accorded it significance as background shedding light on occurrences after such date 14I find Ehrmann to be an agent of Respondent on and after May 13; 1963 11 Both before and after this date, Motzel was and is Respondent's recording-corresponding secretary. Also, since that date, he has become assistant to Respondent's president as well. I find Motzel to have been an agent of Respondent at all times relevant herein. 11 It was Hankins' testimony that Ehrmann, conceding that DiEttore was registered, nevertheless said he would not be referred because he did not have a union book. Ehrmann testified as recited in the text above I have credited Ehrmann because of the inherent plausibility of his version. (DiEttore did not testify.) LOCAL 25, MARINE DIVISION, IUOE 525 Harry Franklin: During May 1962 Harry Franklin went to see Vincent Motzel about getting employment. In early July he received a message asking him to report at Respondent's hiring hall. When he went there, he was referred to the Company for work as an oiler and water tender on the dredge Pennsylva- nia. He worked at American on the Pennsylvania and on the Electric Booster No. 1, for 3 months. At the end of Franklin's first month of employment, Motzel approached him about joining the Union; he said that, in view of the fact that Franklin was only a summer replacement, the initiation fee would be waived. Franklin paid $21.17 Franklin was laid off on October 16, 1962. The next day he called Respondent's office and spoke to Sophie Ginsberg. He told her he had been laid off and asked to be put on the hiring list; she said this would be done. He then asked if any work were available; she said there was none at that time but that she would keep in touch with him. For the rest of the year and part of 1963, he called the hiring hall once or twice a week and he visited the hall two or three times. I find that he was, or should have been, registered from October 17, 1962, through May 1963. On May 10, 1963, Hankins called Ginsberg and asked that Franklin be referred for work as deckhand on the hoister Convoy. Ginsberg said that Franklin was not registered for work. Four or five days later, Hankins again asked for Franklin as a deckhand on the dredge Camden. Ginsberg gave him the same response. When Franklin found out about this-by way of a rejection of an unemployment compensation claim because of "unavailability for work" 18-he called the hall to ask for an explanation and spoke to Joseph Ehrmann. Ehrmann said that others "with more seniority had a paid-up and a partly paid-up book who were out of work, and therefore were entitled to a job before [Franklin] was." When Franklin pointed out that he was on the out-of-work list and that he had paid $21 to Respondent, Ehrmann suggested he show a receipt therefor when he next visited Local 25's office. On Franklin's next contact with Respondent several weeks later, Ginsberg said there was no opening at that time. John Hall: Not then a member of Local 25, John Hall first registered at Respondent's hiring hall on February 16, 1962. In July 1962 he was referred for employment to American. Thereafter, he worked until January 1, 1963, when he was laid off because of weather conditions, without being asked to join Local 25. Apparently, Hall did not immediately register for new employment. On or about January 8, 1963, he was called by Vincent Motzel, saying that Hankins had called requesting him by name, and suggested he come to the hiring hall and register. Hall did that, and Ginsberg said she "would register him." On April 15, 1963, Hankins called Ginsberg and asked her to refer Hall for work on the dredge Gloucester. She said she had no record of registration by Hall, and that she would call him back. Finding his card in the file box,19 she called Hankins back, telling him Hall was not registered for work. (This was confirmed by letter the same day.) Hankins then said that Hall-with whom he had had direct contact-had told him he could not get a union book because he did not leave a job; Ginsberg's answer was that it was "illegal to sell a man a book right away under the Taft-Hartley Law." 20 On that or the next day, through a denial of a claim for unemployment compensation, Hall learned that the Company had offered him a job (presumably early in January). He communicated with Motzel, who told him that Hankins had again called for him and that he had neglected to come in and register. Hall said that he had registered-in January-but Motzel told him to come in again. Hall did go in and he did register, at which time Motzel said that he would try to get Hall a job but that there were other unemployed men higher on the list. Hall asked about joining Local 25, and Motzel said he would try to get Hall a book. 17 But Local 25's records do not indicate that Franklin was ever a member 1B When an individual was requested for referral but was not referred because he was not registered on the open employment list, the Company followed a practice of reporting this fact to the State unemployment compensation agency within 48 hours. lB Apparently, despite the circumstances noted in the preceding paragraph, she had not followed through on registering Hall on January 8. ° By this, Ginsberg explained at the hearing, she meant a person could not join a union "until he had work 31 consecutive days." I do not feel called upon to comment on this opinion. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hall now (April 17) went to Hankins and told him he was registered, and Hankins called Respondent to request his referral. Motzel conceded that Hall had now registered but was not available for work because he had not "fulfilled his union obligations." 21 On or about May 15, 1963, Hall returned to the hiring hall and spoke to Joseph Ehrmann. He said he had worked for American for a 6-month period and would like to get into the Union. Ehrmann said he would get Hall a union book, and, the next day, Hall paid the fee of $168. He received his book a week or two later.22 Meanwhile, on May 16, Hankins again asked for Hall. Ginsberg told him that Hall was now a Local 25 member who had not yet received his book-but "this would not stop him from being referred." . Thereafter, Hall was called in by Respondent and referred to American for employment. Adam Markiewicz: On July 11, 1963, Hankins called Ehrmann, requesting the referral of Adam Markiewicz as a deckhand. (Markiewicz had previously reported to Hankins that he was out of work.) Ehrmann suggested that Hankins reconsider the request because Markiewicz had an engineer's book.23 Hankins refused to reconsider, since Markiewicz had previously worked for American as a deckhand. Ehrmann thereupon refused to honor the request, on the ground that Markiewicz was not registered in the classification for which he was requested. As a matter of fact, Markiewicz was registered for work both as an engineer and as an oiler, which fact was shortly afterward conveyed to American by William Zenga, business representative of Respondent.24 Thereafter, he was re- quested as an oiler on Booster No. 2 and on or about August 1 or 2, was referred to this job by Respondent.25 Charles C. Maull, Jr.: Then driving a road control vehicle for an auto service club, Charles Maull applied for work at American's gates late in June 1962. He was told to register for work at Respondent's hiring hall. On July 2, he went there, and he was "registered" by Sophie Ginsberg; he asked her about his chances of procuring employment, and she told him that he might well receive summer replacement work. He then returned to American and filled out a job application form. On July 6-without recourse to the hiring hall-Hankins called him and asked him to report for work the next day. He did, and between then and January 3, 1963, when he was laid off due to lack of work, he performed a number of job assignments for American. During this period, although, a Local 25 steward asked if he had a union book, he was never asked to join Respondent,26 and no action was taken by Respondent to affect his employment. On January 7,- 1963, Maull went to the hiring hall to register for work. Sophie Ginsberg took his name, address, and telephone number and told him he was registered.27 At the same time, he expressed a desire to join Local 25 and 21 During the next 24 hours, Hankins asked for John Nicholson (see infra) for the job for which he had originally sought Hall. Unsuccessful in obtaining Nicholson, he finally filled the job, on April 18, requesting Thomas Gorman. The record contains no evidence as to' Gorman's membership status. 22 Local 25 records show that Hall joined on May 20, 1963. 23 Markiewicz had joined Local 25 (i.e., its predecessor) in 1953 as an'oiler On Janu- ary 16, 1963, lie had procured an engineer's book. 24 Zenga, at all times material, was Respondent's special representative for the Phila- delphia area as well as business representative. I find him to be an agent of Respondent 21 There was some delay in honoring this request. After the first request-for Markie- wicz as a deckhand-was rejected, he was requested,,on July 17, as an oiler. Ehrmann refused the request, on the earlier stated ground that Markiewicz had an engineer's book. Thereafter, apparently, a further check by Respondent revealed his dual classification registration. 26 This, despite the union-security clause effective at all times relevant hereto. (The lawfulness of the clause is conceded herein.) Maull has never been a member of Respondent. 27I find that Maull was In fact registered for work. This finding is based upon Maull's credited testimony, as corroborated, in effect, by his out-of-work card displayed at the hearing, and by the fact, as found infra, that he received a call from Ginsberg the next day. , I reject Respondent's attack upon Maull's credibility, primarily based upon his poor memory for details: he freely conceded that his memory was poor, but he frankly answered that he did not remember when such was the case; my observation is that he carefully avoided embellishment and distortion and that his affirmative testimony is, to be believed.' LOCAL 25, MARINE DIVISION, IUOE 527 asked how much it would cost ; she said that the cost was $168 but that the membership rolls were closed because so many members were out of work. On January 8 Hankins called the hall and requested the referral of Maull for work as a deckhand on the Company's dredge Delaware No . 2. He was told that Maull was not registered for work .28 Despite this, on the same day, Ginsberg called Maull, telling him there was a job for him as a deckhand on the Delaware No. 2. He arrived at the hall at 1 p .m. at which place and time he found Ginsberg checking the union books of a group of men (including George Short-see infra). To some of them she gave work referral slips, to others she did not. When she got to Maull, he told her he had no book, at which she said she would have to "replace him on the job" with someone who had a paid up book. He was not sent out on a job-either that day or thereafter. John Nicholson: John Nicholson was first employed by American as an oiler on January 3, 1959 . About 3 months later, at the request of the job steward, he joined Local 25. He was laid off on August 5, 1959, from which date, for a period of time, he was employed outside the dredging industry . He stopped paying dues about December 1959, and he was suspended from membership in Respondent on June 30, 1960. On or about January 15, 1961 , Nicholson reported at Respondent 's hiring hall, where he spoke with Sophie Ginsberg . He said he was ready to go back to work (in dredging ) and asked to be put on the out-of-work list. She asked about his union book, and he said he. did not have it with him but that he was behind in dues from 9 months to a year. She pulled his out -of-work card, made appropriate notations, and slotted it among the cards of the registered oilers, simultaneously, she commented that there was no work at that time. In June 1962 Nicholson encountered Vincent Motzel , who asked him if he would like to go to work for American on a job at Hamburg, Pennsylvania. Ar- rangements were made, and Nicholson was referred (by Hankins ) to the job, where he progressed from oiler to engineer before he was laid off on October 11, 1962. - Nicholson returned to the hiring hall and was referred to employment (with another company), which employment he left after a week due to the illness of his wife. Forthwith, he was again referred by Respondent, this time back to American , with whom he worked until October 27, 1962. He returned to the hiring hall on October 31, 1962 , again seeking work. While registering him, Ginsberg said that he would have to pay his back dues, and he made a $20 payment . She then told him that , although he was registered,. "there are a 'lot of men out of work that are paid up and we have to call them first." I find that he was, or should have been , registered at this time. On February 11, 1963, Hankins called Ginsberg and asked that John Nicholson be sent for a' job on the dredge Maryland. She told -Hankins that Nicholson was not registered.28 (Subsequently , the job -was -filled by a transfer.) The Company reported Nicholson's "unavailability for work" to the Pennsylvania. Divi- sion of Unemployment Compensation . As a consequence, an interstate claim for compensation which had been filed by Nicholson in New Jersey was denied. When, on March 13, 1963, he went to the, union hall and demanded an explanation of Ginsberg, she disclaimed knowledge of his having been called to work by American . Nicholson, commenting that he was , or should have been, registered since October 1962, said he thought he was still registered . Ginsberg's reply: she would "put it-down" (i.e., register him) again. - 28 In her testimony, according to the transcript , Ginsberg did not mention Maull by name. She did, however, testify that Hankins, on January 8, asked that Charles Moore be referred to American , and that - she found that Moore was not registered . The context convinces me that she was referring to Charles Maull ( and the transcript is hereby cor- rected accordingly ). As I have heretofore found, Maull was registered , and his card so indicated Ginsberg, by her own testimony , has had-hundreds of contacts with Hankins, and she was unable to give details unless a record was shown her ; at this point of his testimony, 'Maull's out-of-work card was not shown to her. - 21 Ginsberg, testifying with respect to this request , says she did call Nicholson but that, because of "car trouble," he could not report in , presumably , it was based on this fact that she told Hankins that Nicholson was not registered . I believe she -was confusing this date with a date 1 month later when, as will be seen, he did have car trouble. I find, that Nicholson was registered. Also, I credit his testimony that he was not aware of this re- quest for him by American until he was later denied unemployment compensation (see infra) ; his testimony , in context, has'the ,ring of truth. - - 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about April 17, 1963, Hankins again requested the referral of Nicholson for a job for which he had originally requested John Hall. (See story of John Hall, supra.) He was told-by Motzel-that Nicholson was in the same situation as Hall-he would not be referred because he too "had not fulfilled his union obligations." On May 17, 1963,- Hankins again requested Nicholson, as a deckhand -for the dredge Delaware Valley. Ginsberg said he was "now in good standing". and that he would be referred.30 She called Nicholson, saying she had a job for him. When he reported at the hall, she said she was sending him to a job at American but that he had to do something about his back dues. She was unable to give him the total owed-the membership accounts were kept in New York, and she said she would procure the figures-but he said he would pay $25 per week until he was paid up. She then gave him a referral slip. He reported -to the Company and was given a workslip (for work on the dredge Camden in the Delaware Valley); because of an auto breakdown, his actual employment was delayed by 13 days. He thereafter (until at least the first day of the instant hearing) was steadily employed by the Company. In the interim, Nicholson made a number of payments against his dues arrear- age. There were understandable difficulties arising out of Ginsberg's continuing failure to apprise him of the amount owed; involved also was the imposition of an additional fee arising out of his transfer from the status of oiler to that of engineer. By letter dated July 11, 1963, Respondent requested American to dismiss Nicholson under the union-security provision in the contract because he was not a member in good standing of Local 25, but the requested action was obviated by the making of arrangements between Respondent and Nicholson which resulted in an August 23 notification by Respondent to American. that Nicholson had fully discharged his obligations to Respondent. George Short: On January 8, 1963, after he had been told that Charles Maull (see discussion of his case, supra), was not registered for work, Hankins called and asked that George Short be sent to fill the same job. He was - told that Short was not registered. On the same day-and the evidence does not demon- strate whether this occurred before or after the exchange-Short was at the hiring hall, among the group whose union books Ginsberg was checking and to some of whom she was giving referral slips. (See discussion concerning Charles Maull, supra.) She asked Short for -his union book; when he said that he had lost his book,31 she said, "You cannot go to work unless you have your book," and she did not give him a referral slip. Anthony Tate: On May 15, 1963, needing deckhands for the tug Augusta, Hankins called the hiring hall. Having been referred to Ehrmann, he asked for Anthony Tate ( along with Alfred DiEttore-see supra). Ehrmann, on the basis of Tate's out-of-work card, informed Hankins that Tate was registered for work as a welder's helper and,would not be dispatched as a deckhand. Tate, in the past, had worked for American as a deckhand, never as a welder's helper. On the other hand, he had worked as a welder's helper for a company other than American. Finally, he has been a member of Respondent since 1954, with a book classification as engineer. (To the extent that wage rates are indicative of status, the classification of engineer is the highest of the three, welder's helper next, and deckhand lowest.) In the absence of evidence to the contrary,32 I find that, at the time of the request for him, Tate was registered as a welder's helper and not as a deckhand. The Atlas incident: Late in May 1963, the Company rented a "dragline" dredge-the Atlas-from the Peter Kiewit Company for the purpose of adding to its equipment then engaged in dredging the Delaware River between Philadel- phia and Trenton, New Jersey. Company president, Maylin Greaser, informed Respondent's president, Stephen Leslie,33 of this fact. In further discussions be- tween officials of American and Respondent, there was some disagreement as to the Company's intended method of manning the dredge: the Company planned to have mates on only two instead of three shifts. In the course of the discussion, 80 Ginsberg conceded that she had said this, meaning that he had "started to square away" on his union membership. She denies, however, that she meant he could not have been referred otherwise ; on the contrary-she testified-referrals were not conditioned on good standing membership or any membership whatsoever. s1 As a matter of fact, although he joined Respondent in 1955, his membership bad been suspended on March 3, 1960. 8a Tate did not testify. 33 I find Stephen Leslie to be an agent of Respondent. LOCAL 25, MARINE DIVISION, IUOE 529 -August Pistilli, American's general- superintendent, raised' the possibility that the entire operation might "be walked off the barge [onto the shore]," a development which might give jurisdiction of the job to Local 825.34 On June 5, Hankins requested a number of persons, by name, to crew the Atlas. Included were the names of two operators who, he had ascertained from Kiewit, had worked as operators on the Atlas in the past, Anthony Haven and A. C. Johnson.35 The others were referred, but the Company was notified that, while Haven was known to Respondent, his whereabouts was unknown, and that Johnson was not known to Respondent. Thereupon, Hankins asked if any opera- tors capable of working the Atlas were available; the answer-no, but efforts would be made to find them. During the next few days, Respondent did endeavor to find operators. The names of several, all union members, were conveyed to company representatives, who questioned the competence of each.36 Prior to June 10, the Atlas was being fitted for its Delaware River opera- tion. The men previously referred by Respondent were aboard-all Local 25 mem- bers. In addition, American had procured two nonunion operators, Sylvester Brien and L. P. Johnson, from the southern part of the country.37 The dredge was scheduled to commence working on June 11. On that day and the next, the Atlas did work. On the 13th, however, starting at 8 a.m., the crew, other than the operators, refused to work because, they said, they would not work with nonunion operators. Thereupon, the Atlas was docked. The parties met to discuss the Atlas situation on June 14. In the course of the discussion, Zenga accused the Company of employing nonunion operators 38 and said that the Atlas would not work until union operators were put on the machine. Greaser said that the Union had been unable to furnish operators within 72 hours, that the Company had thereupon brought two experienced men from New Orleans, and that these men had registered at the hall and were willing to join Local 25. Zenga said that at least one of the two-Brien or Johnson-had never registered; and that at this time Respondent could furnish experienced operators from various parts of the country including Monte Haven, who had now been located working for Kiewit at Sandusky, Ohio.39 Again, the qualifications of a number of the men mentioned by Zenga were discussed, and, in each case, the Company insisted that they were not competent to act as operators on the Atlas. As for Haven, Greaser balked at stealing employees from Kiewit but agreed to add a third shift, with Haven as a third operator. Zenga counterproposed that the two operators be left on but that Local 25 operators also be hired. Greaser refused. At the close of the meeting, two company officials took Brien and Johnson to the hiring hall, where both were registered. Another meeting was held on June 19, but the dispute was never settled and, after 30 days, the Company returned the Atlas to Kiewit.40 The Auburn job: Early in June 1963 American prepared to perform a dredging and desilting operation on the Schuylkill River at the Auburn Desilting Basin -at Landingville, Pennsylvania, 80 or 90 miles from Philadelphia. The job was undertaken pursuant to a contract with the Commonwealth of Pennsylvania, and a State-owned dredge, the Schuylkill, was to be used. 34 On occasion, there have been jurisdictional disputes between land-based Local 825 and Local 25 96 It should be noted that the two had never worked for American. Under the hiring provision-supra-the privilege of requesting individuals by name was confined to persons who had worked for American during the preceding 2 years. 90 Under the contract, the Company had the right to reject any individual referred by Local 25. 37 Respondent and American are in disagreement as to whether the Company waited 72 hours after having made its original request for operators before getting Brien and Johnson. (Under the contract, American could fill its needs "outside" after 72 hours if Local 25 could not comply with a request.) For the purposes of this case, it is un- necessary to resolve the issue. "In view of the circumstances of the refusal to work, I do not credit Ehrmann's and Zenga's denial that this was said ; on the other hand, I do credit their testimony that they protested the Company's alleged failure to await the passage of 72 hours be-ore bypassing the hiring hall. 39 Presumably, Monte Haven and Anthony Haven, previously requested by name, were one and the same person. 'a This incident was the Immediate cause of the filing of the instant charge. 770-076-65-vol. 149-35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Several months earlier, when American was awarded the job, General Super- intendent Pistilli explained to Allen (Pat) Francis, Respondent's vice president,41 the Company's intentions with respect to the job. They intended, he said, to use local area help in fulfillment of job specifications and called attention A o the fact that a number of area people had worked on a Company. job in 1962. Further details were not-discussed at the time. At a very early stage, prior to the crewing-up, from 15 to 25 individuals who lived in the, Auburn area, some or all of whom had been employed by American on another job in the locality in the fall of 1962, approached Louis Riis, who was to be project superintendent for the Company, looking for work. He told them that if they wanted work they would have to register at Local. 25's hiring hall. They-or at least 15 of them-did report at the hall on June '6, and they did register for employment. On June 7, the Company, through Hankins, requested the referral of seven of these individuals for work on the Schuylkill: John Anthony, William Drobick, Michael Kamenos, John Machusic, Louis Stefanko, Earl Stein, and William Szczer- ba.42 He was told that Ehrmann would call him back. At a grievance meeting between company and union representatives held on June 8, the matter was a subject of some discussion in connection with a Local 25 complaint that the Company was doing "outside hiring." Company represent- atives explained that they were adhering to contract requirements in requesting, by name, persons who had worked for them during the past 2 years; and Pistilli said that the specifications of the Auburn job called for employment priority to "local" people. Ehrmann said that the employment register contained the names of many people who had previously worked for American, some of whom had worked in the job area. The matter was left unresolved. On June 10, not having heard' from Ehrmann again, Hankins attempted to bring the matter to a head. He called Ehrmann and repeated his request. Ehr- mann, commenting that Respondent had a large list of out-of-work men, suggest- ed that they be called first to see if they would work on this job. Hankins said he had no objection to their being contacted, but that he wanted the six 43 men he had named to be referred. -He mentioned again, among other things, that the contract with Pennsylvania called for the use of "local" people, "where possible." 44 Ehrmann said he would call back. That afternoon, Ehrmann called. He named 15 individuals,45 any six of whom he suggested be taken before the six requested by Hankins. When Hankins insisted on the referral of the six he had named, Ehrmann asked what was going to happen to those who had worked, and were working, for American year after year; Hankins, interpreting this as a reference to others now employed by American, said that when and if their work should give out, they would be used to fill out the Schuylkill crew 46 Next day (June 11), Hankins asked Ehrmann, if the six men requested were going to be referred. Upon Ehrmann's answer, "Not until you take six others first," Hankins, acting pursuant to instructions from General Superintendent Pistilli, told Riis to put the six to work. Thereupon, the six were told (by the Company) to report for work, and they did-on or about that same day. Others were added to the crew of the Schuylkill at or about this time. A number were transferred from other jobs and at least one, Earl Stein, had been dispatched from Respondent's hiring hall. 411 find Allen to be an agent of Respondent. 42 Of these, only Stein ' was a member of Local 25. Each of the seven had been em- ployed by American on a job some months earlier, the original hiring having been effected directly rather than through the hiring hall, by special arrangement with Respondent. 4a Stein was referred by Respondent, and, for purposes of this discussion, only the re- maining,six are the subject of controversy. 44 This record contains no basis for a finding that the contract, in fact, contained such a provision or, if it did, how far the provision went There is some indication, based on Hankins' testimony, that "certain political figures" in Landingville had asked the Com- pany to use local men But there is no doubt, and I find, that company representatives told Local 25 representatives that the work contract called for the employment 'of in- habitants of the area 45 The names of 14 are in this record According to Respondent's records, 8 of the 14 were members in good standing at the time , 2-Walter Cannon and Charles Gorman-weie suspended members; ' and 4-Robert Lawrence, Al Nemith, Thomas Ryan, Jr., and John Zellinese-were not members. (NOTE-Local 25's records,do.,show a Rudolph' Nemith and a Robert Ryan as members.) 46 There is indication in this record that this eventually occurred. •. LOCAL 25, MARINE DIVISION, TUOE 531 At one point after the job began, Zenga and Ehrmann appeared at the scene. Having secured prior permission, they spoke to a number of employees on the project. They asked two who were members of Respondent 47 if they were aware they were working with nonunion men 48 and if they were satisfied to continue.49 Zenga and Ehrmann then spoke to the six nonunion men, asking if they would stop working in favor, of . unemployed bookmen and assuring them of employment when the bookmen had jobs.5° A grievance meeting was held between Company and Respondent on July 10, 1963. The first grievance, as set forth by Respondent, follows: 1. Seven men working on Auburn, Pa. job are non-union Company put these men on in preference to qualified men who have been listed on their out of work list for many months. Greaser explained that American had hired these men who had been in its employ within the past 2 years, that it had no way of knowing whether men hired were or were not union members, and that the Auburn hirings had been in accordance with the contract. Leslie talked at some length Pointing out that dredging was a specialized work and that the area men hired were "coal miners," he said that Local 25 membership was not open to anyone; there was a large out-of-work list of members who should 51 get preference in employment over these nonunion people from the Auburn area. The grievance was at least temporarily resolved when Respondent capitulated on the point, not without, how- ever, Leslie's instructing- Ehrmann not to take the men into the Local 25 and not to collect [sic; accept?] any dues or other money from them. On July 15, 1963, Theodore Birtley, American's chief accountant then filling in for vacationing Hankins, requested Respondent to refer Wallace Coleman and Andrew Hoysock 52 as shoremen on the Auburn job. Responding, Ehrmann said that Coleman would be referred since he was a union member,53 but that Hoysock would not be referred because he was not a union member 5-"he would have 35 to 40 other union members to be employed before he would refer Andrew Hoysock." Next day, July 16, Hankins successively asked for the referral of Robert Williams, William Williams, Bernard Kamenos, and Edgar Williams to the job for which Respondent had refused to refer Hoysock; in each case, referral was refused on the same ground as that for which Hoysock was refused referral.-15 The job was never filled. Subsequently, Zenga, Ehrmann, and one Joe Vitalli returned to the job and spoke to the six men whose hiring initiated the problem discussed herein. Despite Leslie's instructions to the contrary noted earlier, the six signed applications for membership in and were accepted as members of Local 25.56 On this occasion, Zenga and Ehrmann told Superintendent Riis that "they wanted to be friends" and that "there was no reason the Union and the Company couldn't be friends " The six individuals were-with changes not relevant hereto-still working for American at the time of the hearing in this matter. 2. In General Testimony was introduced with respect to the conduct of agents of Respondent bearing upon the general operation of the hiring hall, unrelated to specific job applicants or to incidents involving specific groups of job applicants. "William Althouse and Earl Stein. 48 The answer-they had worked with these men before and, as far as they were aware. "they were union." 49 The answer-they were satisfied 50 The answer-they were satisfied with their present employment and were going to stay. 51 The word used in this record (at page 599) was "would " Aware that the difference might have significance in this matter, I nonetheless find, in the context of the meeting that he did say or meant to say, and was understood to mean, "should." 52 Both of whom had worked for American within the past 2 years. 53 He had joined Local 25's predecessor in 1955 ; having undergone a period of suspen- sion, he was in good standing on July 15, 1963. 54 Respondent's records reveal that Hoysock joined in September 1963. 65 None of the four was a member of Local 25. 68 Anthony, Drobick, Kamenos, Machusic, Stefanko, and Szczerba became members on August 12, 1963. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On this record, there is no doubt, and I find, that, among other occasions, the registration of an individual for work was used by Respondent's representatives to ascertain his precise membership status-i.e., whether he was or was not a member of Local 25 and, if he was a member, his "book classification" and the state of his dues payments; 57 to make attempts to collect back dues, if he was a member in arrears; and-but not invariably-to solicit membership appli- cations of nonmembers. At a Company-Respondent meeting held on May 21, 1963, in the course of a discussion of hiring procedures, Ehrmann stated that Respondent's representa- tives "were running a union [and] that there would be no nonbook members referred while there were members on the out-of-work list." Further, he stated that, as of May 13 (the date of his assumption of office), he wanted it clearly under- stood that no one would be referred from the hall "unless he was a book member, in the classification of his book." 56 When he was accused of asking for a closed shop, he said, "No, if all union men in the classification are exhausted, you're at liberty to go and hire people from any place whatsoever, and that proves we're not running a closed shop." Also, he insisted that "classification" (as used in the contract) meant classification in a person's union book, and, "[W]e've got a union and we'll decide on classifications." 59 At another meeting held on June 8, 1963-one of the monthly Company-Re- spondent grievance meetings-Ehrmann said he was not going to send the Company any nonunion men, whether or not requested by name and whether or not they had worked for American within the preceding 2 years, as long as there were dues-paying bookmen on the out-of-work list.60 In a telephone conversation with A. V. Cherbonnier, American's labor manager, on June 16 or 17, 1963, in the course of discussing the problem created by the hiring of the two operators for the Schuylkill-supra-Ehrmann said that "if the company will put on our book men, the matter will be settled." At a meeting held on June 19, 1963, arranged at the request of American's president Greaser to iron our current difficulties-at that time exemplified by the Atlas and the Auburn incidents, supra-Eastern District International Represent- ative, Richard Nolan, referring to a company contention that its hiring had accorded with contractual requirements, said, "The contract is only a scrap of paper." 61 At a meeting on grievances held on July 10, 1963 (involving, among other things, the Auburn incidentsupra, Leslie said that he had "bookmen out of work and [he had his] union to protect and, in all fairness [the people hired at Auburn] should go-[his] bookmen should be given jobs before these people are employed." 62 At a follow-up meeting on July 23, John Mooney, counsel for Respondent, said, "Well, let's put the cards on the table, what we want is a rotary hiring hall system. Steve [Leslie] has got to have something better than what he's got," to which Leslie added, "Yes, the contract says you can call for [employees] by name, but we want a rotary system. We can accept some compromise, but we've got to have something better than what we have. §T Official membership records were kept in Local 25's Brooklyn office. es Ehrmann , denying using the words, testified that he did say he "was running a union down there" and that "beginning May 13 things are changed," but did not remember what else he said; he did not believe he used the words attributed to him Zenga, who was present at the meeting, did not recall whether Ehrmann made these statements The above finding is based on the credited testimony of Hankins 59 According to A V. Cherbonnier, American's labor manager, this interpretation of the hiring hall clause was reduced to writing, but Respondent's representatives refused to sign it. The writing was not received in evidence, and I accord it no significance. 80 Ehrmann did not testify specifically about the statement. Zenga, who was present at the meeting, did not hear Ehrmann make it The finding is based on the credited testi- mony of Hankins and Pistilli. 61 Nolan was vice president of Respondent's International (not a party hereto) and the representative of Its, eastern district, within which Local 25 lies ; at the instruction of the International president, he attends general grievance meetings between Respondent and the Company. In view of his position vis-a-vis Respondent, and in view of'the fact that the statement was made, without contradiction, in the presence of Leslie, president of Respondent, I find that responsibility- for the statement is attributable to Respondent i 62-This finding is' based on the credited testimony of Pistilli, as corroborated, in effect, by Zenga. Leslie did not testify. LOCAL 25, MARINE DIVISION, IUOE 533 I've got my union people to look 'out for." Mooney: "What we want is a rotary hiring hall system; we can send you anybody we want; you don't have the right to ask for anybody by name; we can send you redheads, Chinese, or anybody we want." At a later point, Mooney said he felt Respondent was correct in this position and that he was prepared to take it "to the courts" if necessary, but that he felt some compromise could be worked out. Finally, Leslie said, "Just ask us for the classifications you want, and well send them." 63 Finally, at the hearing itself, Respondent frankly and openly stated a number of its positions with respect to dispatching individuals requested by American: (1) it does not consider itself obligated to refer anyone not on the open employ- ment register at the time of the request, even though he has worked for .the Company during the past 2 years; (2) it does not consider itself obligated to refer an individual, although on the register and employed by the Company during the past 2 years, to fill a vacancy other than in a classification for which he is currently registered-even though that individual may, in the. past, have performed work in the classification named in the request; and (3) it does not consider itself obligated to refer an individual, although he has worked for the Company during the past 2 years, if he is on the register only by virtue of a recent request or instruction to register made directly by the Company, since such an individual is not considered (by Respondent) to be "truly interested" in working in the industry. In short, Respondent contends that it seeks to operate a "rotary hiring hall," 64 subject only to the Company's right (with the above limitations) to ask for specific individuals who have been in its employ during the prior 2 years. E. The hiring hall-more facts Before drawing conclusions from the ,foregoing primary facts, it becomes necessary to note, for whatever they are worth, certain additional circumstances revealed by the record. - The first is the unstable nature of the industry. Activity is determined not only by the plans of man; it is substantially affected by climate and by the vagaries of nature. The work locations are farflung and unfixed. As in other fields where employment is by the project, the amount of employment varies greatly from job to job. The demand for labor fluctuates widely from year to year, from season to season, and from week to week. I find that this factor, in part at least, explains the Company's desire to build up a work pool of available, acceptable employees. Second-and this in part at least is related to the first factor-the labor supply is a shifting one, not only in the geographical sense but also in its numbers and in its nature. Especially in periods of high employment, those individuals who devote substantially all of their worktime to the industry are augmented by others from outside the industry. Seniority means little-at American it was given no significance during the period with which we are concerned.65 It is clear, and I find, that there are jobs for which total strangers to the industry might well be and are hired.66 And their desire to- take such jobs is enhanced by the relatively high compensation.67 This accounts, I find, at least in part, for Respondent's concern over the inroads of "outsiders" upon the employment available for those regularly engaged in working in the industry. This record reveals certain characteristics of the operation of the hiring hall which, it is quite apparent, have contributed to the instant situation. Six- to seven hundred applicants use the hall situation. Although, as earlier indicated, the names of "novice" registrants are placed' on yellow sheets and the cards 63 Ehrmann, who was present at the meeting, made no specific reference to these state- ments ; asked what was said and by whom, he testified, "Well, it's pretty hard to remember certain individual . . . [pause and interruption]." Zenga, also a participant, testified that no one from Local 25 protested the Company's right to call men by name; that they did, however, insist on the proper classification. The above finding is based on the credited, testimony of Pistilli. ° Le, first one registered for work, first one referred for work. 65Except that American would seek, after a period of layoff, to reassemble a crew of a piece of equipment on which they had formerly worked. 01 Witness the case of Charles Maull, whose previous experience had been confined to labeling cans in a paint factory and driving a road control truck for an automobile service club.. e7 The least skilled jobs at American during the period in question paid from $2.50 to $3 per hour. -534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of other registrants are "slotted" in the open employment trays, no permanent chronological journal of registrations is kept; there is no way, from these records, to reconstruct a registration picture as of yesterday, let alone a date sometime 'back.68 Hankins and Ginsberg (or their substitutes) are in telephonic communi- ,cation 10 to 15 times a week; 69 assuming that only 60 percent of the calls result in referrals, this means that there are 300 to 450 referrals per year.70 Yet, no chronological journal entries are made of referrals.71 If we impose upon this picture the fact that the hall's clients are shifting and sometimes difficult to reach, clearly, we have here a fertile basis for misunderstanding, to say the least. I find that the summer and early fall of 1962 had been a period of intense activity and high employment in the dredging industry; 72 there was a shortage of available workmen on both Local 25's and American's lists. During the first half of 1963, however, employment opportunities ebbed; men remained on Respondent's open employment list for months without receiving a call. I find that the change contributed to the problem which gives rise to this proceeding. During the "good times" of 1962, it was not uncommon for Respondent to send new people to the Company for interviews directly after registration, nor for the Company to hire men referred or cleared by Respondent without prior work histories either for the Company or in the industry. (Indeed, the case of Charles Maull, supra, suggests that on occasion, individuals were hired directly by the Company without the knowledge of Respondent.) Moreover, in March 1962, by informal agreement between Motzel and American, the latter, in emergency situations, hired men. directly, only subsequently reporting details to Local 25; and a certain amount of "looseness" in reporting to the hall was tolerated in cases of short layoffs, transfers, and promotions. Finally, during this period, the Company, without objection from Local 25, fully availed itself of its contractual privilege of requesting referrals by name of individual. In the latter respect, for at least the past 3 or 4 years, the Company has maintained a list of its prior employees who were acceptable for reemployment. During the same period, 90 to 100 percent of its requests were by specified name As indicated, this brought no protest from Respondent during 1962. In the leaner first half of 1963, however, when the Company's practice was maintained if not intensified,7s it contributed, I find, to a "hardening" of Respondent's attitude with respect to the hiring process. Prior to January 8, 1963, Respondent had invariably referred to American all persons requested. On that date, problems were encountered with respect to requests for Charles Maull and George Short, supra; on February 11 and April 17, there were similar problems regarding John Nicholson, supra; and, again on April 17, there was a problem concerning John Hall, supra. Between May 5 and 8, 1963, Repondent's President Leslie, in a telephone conversation with American's President Greaser, said, he was making a change in business agents in Philadelphia; that Motzel, then business agent, had been "lazy" and that "things had got out of hand"; and that Respondent was bringing in a man by the name of Ehrmann from -the Great Lakes area "to knock heads together, whether they were union men or company men." 74 Ehrmann did report for duty on May 13, 1963; and he lost no time in announcing his pro- -gram. As detailed above, on May 21 he made certain statements about future referral policy; furthermore-in a telephone conversation with Pistilli on or about May 14-he declared that henceforth (contrary to prior concessions by Motzel) Respondent would insist that not only new hirings, but also rehirings after layoffs (however short), transfers, and reclassifications would have to be effected 181t is true that the entries of various actions are made on the individuals' out-of-work cards, but our experience with cards at the hearing demonstrated that entries may have been omitted or were incomprehensible. °8 Sixty times during April 1963 "Hankins testified that there were "several hundred" referrals in 1962. Ginsberg testified that in 1959 there were 100 referrals per day. 71 Nor did the Company keep any record, either of requests (except in cases in which a person requested was not referred) or of referrals . 72 Among the causes were severe storms along the East Coast 73 At least since May 13, 1963, 100 percent of the requests have been by specified name. 74 This finding is based on the uncontradicted, credited testimony of Greaser, who, in- cidentally, testified that his expressed reaction to the news was a warning not to knock any of the company employees' heads together and an expression of resentment over the entry of a stranger, knowing nothing about the Company's operation, into'the area. i '3 LOCAL 25, MARINE DIVISION, IUOE 535 through the hiring hall; he wanted to know "where every man was " 75 Here we have-if not a declaration of war-a declaration of strict adherence to Respondent's interpretation of the contract. One final note. For what it may be worth as background-perhaps a more appropriate term is foreground-I here set forth certain facts concerning Respond- ent's open employment list as of December 4, 1963, the ninth day of the instant hearing. Produced at the request of the General Counsel were the trays bear- ing out-of-work cards constituting the open employment register on that day. The tray holding the cards of the deckhands, which was the subject of questions and answers in the record, revealed the following: On that day, the cards of 77 deckhands, 68 union members, and 9 nonmembers appeared in the active open employment list; and the cards of 16 deckhands, 6 union members, and 10 nonmembers appeared in the inactive 76 open employment list. F. The hiring hall-concluding findings At my request, the parties, in their briefs, addressed themselves to the question of whether the hiring hall provision of the current contract, and the contemplated and actual practices thereunder, in fact constituted an exclusive hiring hall. As I see it, the "traditional" exclusive hiring hall is one in which the employer uses the union hall as his main source of labor supply, only looking outside it when, after a specified time, the hall is unable to supply needed help. Some question arises as to the exclusiveness of a hall which, like the instant one, merely processes and clears those whom the employer requests by name in 90 to 100 percent of the cases; the question-is this an exclusive hiring hall or is it an exclusive recordkeeper of hirings? At the hearing, the General Counsel contended, and Respondent conceded, that this was an exclusive hiring hall for at least 72 hours. In its brief, Respondent, in effect, reverses its position: pointing out that American might use any available labor source after 72 hours, that it was free to reject any person referred by Local 25, and that a referral by Respondent was merely an opportunity for a job interview by the Company; calling attention to American's privilege of asking for anyone by name (who has worked for American within 2 years and who currently is registered for work) and the fact that this privilege has been exercised in upwards of 90 percent of the requested referrals; and, finally, noting the number of occasions (see supra) on which, by agreement, American has been permitted to hire without even calling the hall first-in view of these circumstances. Respondent urges that this is not an exclusive hiring arrangement. After having fully considered the matter. I find that we do have here an exclusive hiring hall within the meaning of the term as used in Board cases. The Company has given up, at least for 72 hours, its right to hire outright at the gate or anywhere else; Respondent has been given the right, for 72 hours, to furnish for hiring or to clear for hiring all prospective employees of Ameri- can. Even the right merely to block a hiring by nonclearance, it seems to me, is that degree of exclusive control in the hiring process which requires, or should require, protection against discrimination. I find, therefore, that Respondent was bound, in its operation of an exclusive hiring hall, to act without discrimination to encourage, or to discourage union membership.77 And I have set forth the surrounding circumstances here in some detail because a determination of the existence of discrimination calls for an appraisal of all such circumstances. 78 The instant record is void of statistics bearing on the number of referrals, of Local 25 members during any given period as opposed to the number of referrals of nonmembers. Although these records are within the peculiar possession of Respondent, I shall make no unfavorable inferences in this respect, since (1) the fact, if true, that a large number of members as compared to nonmembers may have been referred has little probative value in a situation where, I suspect, most of the "regular" employees in the industry are Local 25 members,7° and 75Pistilli's answer he would not agree to effect transfers through the hiring hall. 79 I.e, those with whom Respondent's attempts to communicate had been unsuccessful. -77 bfountain Pacific , Chaipter . of, the Associated General Contractors , Inc, et al., 119 NLRB 883, as later modified by Local 557, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen, and Helpers of America „(Los Angeles-Seattle Motor Express) v. N.L R.B , 365 U.S. 667. • 78 Local 557, International Brotherhood of Teamsters, etc. v. N L.R.B ., supra. 70 See The Hunkin-Conkey Construction Company, 95 NLRB 433, footnote 5. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) in the instant case, the important question is not who was referred, but_ rather who was not referred, a statistic which was in possession of both Respondent and American, the Charging Party. The background evidence-that applicable to the hiring hall operations prior to December 19, 1962,-clearly demonstrates, and I find, that Respondent referred nonmembers as well as members of Respondent. And, in the absence of evidence to the contrary, I find that the referral procedures as of the time of this hearing would accord with the open employment list as of the time of the hearing-which list contained the names of nonmembers as well as members. I find, however, that the General Counsel has established by a preponderance of the evidence that, between December 19, 1962, and May 13, 1963, Respondent failed or refused to refer individuals on at least six occasions because they lacked membership in good standing.80 This finding is based not only on the facts surrounding each situation but also on the implication contained in a subsequent statement with respect to two of the individuals-that they could now be referred because they were in good standing. On or about May 13, 1963-as I have found-the position of Respondent "hardened." The "hardening" took at least two forms: (1) Local 25 thereafter demanded stricter adherence to its interpretation of the contractual hiring arrange- ment with respect to the honoring of individuals' job classifications, with respect to the necessity of using the hiring hall in emergency situations, rehiring after layoffs, transfers, and reclassifications, and with respect to the type of registrant who would be referred on request; and (2) Local 25 thereafter would and did take further action to protect the employment opportunities of its members against encroachment by "outsiders." One phase of Respondent's tightening up on its interpretation of the contract deserves special attention. Both before and after May 13, 1963, it refused to refer a person outside his classification and, at the hearing itself, conceded that it would not refer anyone to a job for which he was not registered.81 At the hearing, the General Counsel contended that this position and its implementa- tion were unlawful, because (1) the classifications used by Respondent as the basis for referring or refusing to refer were the products of unilateral determina- tion by Local 25, and (2) the classifications used by Repondent were the "book classifications" of members and were thus the product of a phase of union member- ship. In its brief, the General Counsel abandoned this contention (except to the extent that refusals to refer because of "mis-classification" might reflect on Respondent's emphasis on the requirement of membership in making referrals).'- American, however, to the extent revealed by the remedy suggested in its brief, still makes this contention. I reject it.82 Absent any evidence to the contrary, I find that the classifications of registrants have been established in' accordance with the latest, highest paid, regular employment of such registrants, unconnected with union considerations.83 I find nothing unlawful in Respondent's refusal to refer out of classification.84 Nor do I perceive any illegality in Respondent's withdrawal from prior arrange- ments under which the registration requirements were relaxed-in emergency situations, rehirings after some layoffs, transfers, and reclassifications. I am not called upon to determine the justification for Respondent's new position, nor whether it did or did not actually conform to the contract, as long as it was. not designed to encourage membership in Respondent or have the tendency' to do so. Since there is no evidence that it was disparately applied as between members and nonmembers or as between certain members and other members,' it does not violate the Act. 88 Maull and Short on January S ; Hall on April 15 and 17; Nicholson on April 17; and Franklin on May 10. 811t should be remembered that the open employment list is kept by classification. In) responding to American's referral requests, Respondent's representatives examined only the register for the classification for which a request was being made. 83 See New York Typographical Union Number 6, International Typographical Union, AFL-CIO (The New York Times Company; and Publishers' Association of New York City), 144 NLRB 1555. 83 Markiewicz, for example, had an engineer's book but was registered as an engineer and as an oiler 84 Thus, I place no significance in Respondent's refusals to refer Tate and Markiewicz on May 15, 1963, and July 11, 1963, respectively. LOCAL 25, MARINE DIVISION, IUOE. 537 The refusal of Respondent to. refer DiEttore on May 13, 1963, poses a special case. By his own testimony, Ehrmann, business agent for Respondent, refused the referral on the ground that DiEttore was now at the bottom of the open employment list. I • am unaware of any support in the contract for this position with respect to any ex-employee requested by American. But I am unable to find that union considerations entered into the decision,85 and I need not.decide whether it constituted a breach of the contract. As for the refusal of Respondent to honor the registration of a certain type of individual-the person "not genuinely interested" in working in the industry-I find myself in an ambivalent position. Suffice it to say at this point that, to the extent that the policy has been used to protect the employment opportunities of the "regulars" in the industry-union members and nonmembers alike-it does not constitute a violation of the Act.86 The second form which Respondent's "hardening" of mid-May 1963 took was, as I have put it above, further action to protect the employment opportunities of its members against encroachment by "outsiders." Specifically, on various occa- sions, it utilized its referral rights to prefer Local 25 members in good standing over others. I find at least 12 such instances.87 Moreover, the Atlas and the Auburn incidents above described were quite patently acts of mass discrimination by Respondent. I find that the Atlas strike was in protest against American's hiring nonunion operators; as for the Auburn incident, Local 25's grievance, in its own words, was based not on the method of hiring but on the fact that nonunion men were hired. To the extent the Respondent asserts that its reason for its action at Auburn was its desire to protect employees regularly employed in the industry (members or nonmembers) from encroachment by per- sons (members or nonmembers) "not genuinely interested" in working in the industry, I reject this reason as pretextual.ss Finally, as I have detailed earlier, Respondent's representatives, after May 13, 1963, made unequivocal statements establishing their determination to prefer union members for referral over nonmembers.89 Accordingly, on this record, on what I consider to be a fair preponderance of the evidence, I am persuaded and find that Respondent - has discriminated to encourage union membership in the operation of the hiring hall 99 (Respondent urges that adequate machinery for disposing of the issues herein is provided in the contract. At the hearing there was testimony and argument to the effect that arbitration of certain issues -had been requested, but at no point did the parties agree on such details as the subject of the arbitration. While I can visualize that certain of the issues herein-such as Respondent's position on classification, which I have found not to be an unfair labor practice-might well be arbitrated, I cannot see the Board's acquiescing in the arbitration of the question of whether union membership was a condition of referral. See Section 10(a) of the Act 91) 85 There is no evidence that Respondent's reasons were "unfair or irrelevant or in- vidious" vis-a-vis others who used the union hall. See Local Union No. 18, International Union of Operating Engineers, AFL-CIO, and its Agent, George E. Miller (Ohio Pipe Line Construction Company), 144 NLRB 1365, distinguishing Local 553, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Miranda Fuel Company, Inc.), 140 NLRB 181. 16 But where it is used as a pretext for referring union members, see infra. s7 Franklin, refused referral on May 14 or 15 ; six individuals refused referral to the Auburn job on June 6 through 11; and five more for the Auburn job on July 15 and 16. 88 But I do not find Respondent representatives' implicit urging of union members to walk out at Auburn or of nonmembers to give up their jobs there as independent viola- tions, as urged by the General Counsel. ss Ehrmann on May 21 and June 8 and 16 or 17; and Nolan on June 19. I do not here rely on the July 10 efforts of Leslie and Mooney to persuade American to grant them "improved" referral rights nor on their declarations at that time as to Respondent's inter- pretation of its referral rights as they concerned job classfilcations. PO In so finding, I do not rely on its use of the hiring hall to check the union status of registrants, to collect dues, and to solicit new members. Also, in view of the instances of nondiscrimination , I do not find that the discrimination was invariable-in short, that there was a "practice," urged by the General Counsel ; in view of the unfair labor practices found, however, I shall recommend a remedy. 01 But see International Union of Operating Engineers, Local 18, AFL-CIO (Frazier Davis Construction Co.), 145 NLRB 1492, where there had been arbitration. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. The Company's representative-the facts A.: Victor Cherbonnier, an attorney,92 has-been American's labor manager since during or, about 1956.93 As such, . his duties have included negotiating, collective- bargaining contracts with unions, including Local 25, which deal with American, and handling grievances arising under these contracts; in effect,-he has been a one man labor relations department for the Company. In its answer to the complaint, Respondent denied that Cherbonnier, at material times, had been designated by American as its agent for purposes of collective bargaining and of adjusting differences or disputes arising under, the grievance procedure. In the course of the hearing, Respondent conceded that Cherbonnier had been "labor manager" of the Company, at least in February 1962;- going further, that, for upward of 20 years, except for a 1- or 2-year period of war service, he had been and was an active member, if not - the key member, in negotiating collective-bargaining agreements on behalf of American; and-still further-that, in the area of grievances, when "major policy" arguments have arisen between the Company and Respondent, particularly those referring to "legal questions of interpretation of contract," Cherbonnier has "appeared for" the Company. It professed ignorance as to the exact scope and reach of Cherbon- nier's assignment [sic: authority] when it came to such mundane issues as soured coffee cream or defective sanitary plumbing aboard a craft, presumably because it doubted his personal knowledge with respect to such matters, but it conceded that, "basically," he had been a representative and spokesman for the Company for many years. In its brief, to the extent that it had refused to make concessions in these respects. Respondent seems to have wholly retreated from its original position. At any rate,, on this record, I am convinced, and I find, that Cherbonnier was at all times pertinent American's agent not only for negotiating contracts but also for discussing and adjusting grievances at the second and/or third step of the grievance procedure.94 In so finding, I rely on the credited testimony, oral and documentary, of designation by American, repeated communication of such designation to Respondent,95 and relevant conduct of Respondent's representa- tives.96 Indeed, on those occasions which Respondent did deal with Cherbonnier on grievances, it questioned his authority only once-and that when he said he could not reverse a decision earlier made and communicated to Respondent by American's president. This decision is lengthy enough without belaboring the obvious. The record is clear, and I find, that while Respondent may have had no objection to Cherbonni- er as a person, it held him in little regard as an instrument through which practical, everyday, "latrine" problems could be hammered out because (1) Respond- ent believed he lacked familiarity with these problems and (2) he was a "god damned Chinese lawyer," a term used by one or more of its agents.97 Aside from maintaining such personal opinions, Respondent's agents, according to the evidence, engaged in a number of acts bearing upon the allegation in question. (Let it be said first that, on his own testimony, since receiving authorization from the Company in 1958 or 1959 to handle grievances on its behalf, Cherbonni- er has discussed grievances with Respondent's representatives "hundreds of times." 99 One of counsel representing the Company at this hearing. 53 Prior to his assumption of this position he represented American as its attorney In connection with its membership in a dredging operators' association in which American and five other companies were joined 94 Under the current contract, grievances are first handled between shop steward and supervisor in charge of the equipment on which the dispute arises The next stage is dis- cussion between Respondent's business representative and a person designated by the Company Then grievances not earlier disposed of are handled in monthly meetings be- tween designated representatives of Respondent and the Company-the third step The fourth step is arbitration oc Excluding communication to representatives of Respondent's International, not a party hereto, and excluding Cherbonnier's own statements of his authority. 99 In fact, on many occasions, they dad deal with him on grievances. Also, Respondent's brief, ,in denying or explaining away alleged coercion on American in its choice of Cherbonnier as grievance handling representative, cited instances in which Its agents dealt with him on grievances. - „ 971n context, I take this to mean that Respondent's, representatives regarded 'him as obfuscatory, and I assume that they attributed this characteristic to all lawyers • LOCAL 25, MARINE DIVISION, IUOE -, 539 Except • to the extent, therefore, that the following recital • may establish a refusal by Respondent to deal with him as American 's representative. I am con- strained to find, and I do find, no such refusal.) During negotiations between Respondent and American in 1960, Leslie said to Cherbonnier, "You're a lawyer, and we don't deal with lawyers on practical matters." In April or May 1962, there was dispute over the crewing of the tugboat Atlantic City, which kept the tug in dock for 12 or 13 weeks. Cherbonnier was hospitalized : during the early stages , but when •he was discharged, he was assigned 'the task of straightening out the matter for the Company . He called Motzel, who said that the affair had already been the subject of discussion between Leslie and Greaser and that he (Motzel ) had .been instructed -not to discuss it with Cherbonruer; Cherbonnier then called Francis who reiterated that it was a , matter "for Leslie and Greaser." When he sought by telephone . to reach Leslie, he was told by Charles Striner, Respondent 's financial secretary,98 to whom he . explained the purpose of his call , "There's no one here to talk to you on that. They'll only talk to Greaser or Pistilli." Thereafter, Nolan asked Greas- er to come to New York without Cherbonnier to discuss the situation; and it was only upon the visit from Greaser that the dispute was settled. Late in May and early in June 1962, there was an exchange of correspondence between Respondent and American. Springing from a Local 25 complaint about a working condition, it devolved into a discussion of the time involved in disposing of problems. Company President Greaser, by letter dated June 4, 1962, called for the settlement of grievances "in an orderly manner"; he said that Cherbonnier was available 1 day a week to handle grievances at the second step99 and noted that it was his understanding that Richard Nolan , Respondent's International district director, would meet with company officials monthly to deal with step 3 grievances.100 Leslie, by letter on June 12, expressed unhappiness with the Company's attitude. Among other things, he said: . With due respect, I must say the Messrs. Pistilli and Cherbonnier have attempted to resolve some of the problems, but the duties of Mr. Pistilli are so flung and varied that we cannot wait weeks for the resolution of a dispute and still keep the men in line; and since Mr. Cherbonnier is an attorney it would be unfair to place problems before him that are the normal province of supervisory personnel. The negotiations for the current ( 1962-65) contract took place in November and December 1962 and-most intensively-in January. 1963. The main company spokesman were Greaser and Pistilli, but Cherbonnier was given a free hand by American on "noneconomic" matters.'°' Cherbonnier was present at all meet- ings and actively participated. In view of the extent of his participation, I do not credit testimony that Respondent would never negotiate with him in the absence of Greaser or Pistilli, although it does appear , and I find, that the presence of one or both of the latter was often required at the insistence of Local 25 representatives. (Respondent concedes that it often asked for Greaser or Pistilli-or for other supervisory personnel-"when we were stuck.") At one point, Leslie said, "Vic [Cherbonnier], you're a nice fellow, but I'm not going to talk to a goddamned lawyer You can sit and write, but we've got to discuss with Company officials." Greaser's signature to the contract, affixed on Febru- uary 20, was attested to by Cherbonnier. On January 30, 1963, Leslie suggested to Greaser that if the Company replaced -Cherbonnier with a safety engineer, the Company would have less labor trouble. On or about February 20, Motzel told Pistilli that he had a good man for the job of safety engineer-that the Company would be "lots better off" if it got rid of Cherbonnier ; noting that he did not think he would be in Philadelphia -much longer, he said he wanted the credit for installing a good man as safety engineer. At the May 15 meeting at which -Ehrmann was introduced , Motzel 181 find Striner to be an agent of Respondent '00 See footnote 94, supra OD In the fall of 1960 , the International president , had designated Nolan to act as "mediator',', between Greaser and Leslie at monthly grievance meetings. 101 These constituted the bulk of the issues . Wages were substantially - settled as a result of a contract previously reached between Respondent and a group of New York employers. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,drew Greaser aside to tell him, "`What you need here is a safety engineer. You 'wouldn't have the labor. problems you have"; and he named one Aiello as being ,the person he had in mind.102 During the winter early in 1963, American made a decision with respect to a change in the.operation of its bucket dredge Baltic in the spring. Specifically, it intended to sail without the galley, thereby eliminating the need for a cook and a messboy, and, as- a result of a technological change in the winches, it intended to eliminate one deckhand from each of the two work shifts. On January 18, 1963, during the negotiations for the 1962-65 contract, the subject of the elimination of galleys was generally discussed between the parties-as it had been on many prior occasions; when Cherbonnier joined in the discussion, Leslie said that he was a "nice guy, but the parties didn't need lawyers in these practical matters." 103 On February 20, when the contract was signed, Company .officials mentioned the impending change on the Baltic to Local 25 representatives, without, however, going into detail. Leslie laughed, "The way things are go- ing, you're going to run these things without any crew at all; you'll just -press buttons," and, apparently, the subject was dropped. But the matter was not dropped; early in March the Company was ready to implement its decision. On March 8 Pistilli called Motzel and told him the Baltic was ready to go, without a galley and minus one deckhand per shift. Mot- zel said he could discuss the deckhands but not the galley, and he suggested that Pistilli write to Leslie. Pistilli did; in response, Francis (in Leslie's absence) called Pistilli on March 11. Each of the two, because of the press of ,other business, suggested that the other come to discuss the matter at his office (at Brooklyn and Philadelphia, respectively) because he could not get away. When Pistilli suggested that Cherbonnier, in New York City, come to see Francis, Francis refused-it had to be Pistilli or Greaser. Pistilli nonetheless turned the matter over to Cherbonnier, who called Motzel on or about March 12. Motzel's answer: "You better call Steve [Leslie] because I've been instructed not to discuss this matter with you." Cherbonnier's attempt to reach Leslie was unsuccessful, and, on the 13th, he spoke to Francis; when he said he was calling to straighten out the Baltic problem, Francis said, "You can't do it." On the same day Greaser did reach Leslie, and Pistilli did speak to Francis. In the latter conversation, Pistilli offered a compromise-to keep the galley but eliminate the extra deckhands. When this was rejected, Pistilli again asked Francis to meet with Cherbonnier. This request was refused, at which Pistilli said the'Baltic would be run as originally planned. On March 14 the Baltic was ready to go, and another request for delay by Motzel, who threatened "trouble," was rejected. But the craft did not sail. By 10:15 a.m., Motzel had instructed the crew of the tugboat not to take the Baltic out; by afternoon, its crew had left the dredge. Cherbonnier notified the National Mediation and Conciliation Service. Finally, at the request of Commissioner John Murray of the Mediation Service, the parties met at his office on March 27. At the meeting's opening, Leslie protested Greaser's absence, saying that he was not going to deal with a "goddamned Chinese lawyer" at which Pistilli said that both he and Cherbonnier were author- ized to speak for American. Commissioner Murray read the "subsistence" clause from a contract; Cherbonnier spoke up, saying that he was reading from the "New York group's" contract, not American's, and pointing out a slight difference in wording.104 Leslie lost his temper, calling this a lawyer's trick. Thereafter, the parties caucused in separate rooms. Pistilli was American's principal spokesman, but Cherbonnier participated. Ten or twelve hours' deliberations failed to bring a settlement The parties met again with respect to the Baltic dispute on March 29, at 3:30 p.m. At an early point, Leslie said, "Bim [Greaser], you and I don't need any lawyers to work this thing out. We can settle these things without Cherbonnier." For the rest of the afternoon, when the parties were -together, Greaser did most of the Company's talking, but Cherbonnier participated. The 102 The Trial Examiner, questioning its probative value, stopped further inquiry along this line when it was revealed that Aiello was related to Motzel. 108 At the time Cherbonnier defended himself, pointing out that be was an Annapolis graduate and had been a fireman on the U.S.S. Kearaage. 104.The New York contract apparently had the same wording as American's old contract, but both differed slightly from American's current contract The Company, in this dis- pute, was not relying on the difference in wording; under either contract , it contended it was entitled to eliminate the galley. LOCAL 25, MARINE DIVISION, IUOE- 541 justification for the crew changes was the subject of argument , and, during the afternoon , a proposal by American in the nature of a compromise was,rejected by Local 25. Little progress was being made, and Cherbonnier who had an engagement that evening for dinner and bridge, asked Murray how long the meeting would go on ; and, at the commissioner's suggestion, he left the meeting at 7 p m. Thereafter, the parties continued to meet , together- and separately, until agreement was reached-somewhat along the lines of American's afternoon proposal-at 2 a.m. At meeting's end, Leslie said, "See, we can get these things resolved without any Cherbonnier ," and Al Grossman , then special represent- ative of Respondent,105 said, "Whenever, the SIU deals with Cherbonnier, they always go for twice as much." The get-acquainted-with-Ehrmann meeting held on May 15, 1963, provided little variation from the theme . When Company officials told Ehrmann that Cherbonnier was American's representative at step 2 of the grievance procedure and that, while Greaser or Pistilli would try to attend step 3 meetings , Cherbonnier would always be present, Leslie commented that the Company was making a mistake in having Cherbonnier represent them on practical matters-they needed a practical man. "That's why I brought Joe Ehrmann here." On May 21 , pursuant to arrangements made on the 15th , there was a meeting to discuss the general grievance procedure . Cherbonnier, Hankins, Zenga, and Ehrmann were there. Zenga or Ehrmann asked where Pistilli was and, on being told he could not attend, said, "If we had known, we wouldn't have come." There followed a discussion of grievance procedure and of a number of grievances. In the course of the latter discussion , Cherbonnier said he could not, with respect to several grievances , alter the Company position as expressed by Greaser I week earlier; because of this, Cherbonnier was charged with "lack of authori- ty." The hiring process was discussed and Cherbonnier purported to reduce to writing "Respondent's interpretation " of its obligations , but neither Zenga nor Ehrmann would acquiesce in this interpretation of their interpretation by initialing the writing. The meeting ended with Cherbonnier's comment that Ehrmann was "too hard to get along with" and that "something would have to be done" about him, and Ehrmann's retort that he'd "be around 15 to 20 years." On the following day, Leslie wrote Pistilli a letter. The first three paragraphs: The record will show, beyond any doubt or peradventure, that whenever a dispute arose between the American Dredging Co. and this Local Union, the matter was resolved or placed, on the road to resolution by means of parleys between the officials of both organizations . By officials I mean full time representatives who make dredging their vocation and not part-time attorneys who place the highfalutin tag of "Labor Relations Consultant" after their name. I have always been opposed to the "part -time" outsider attempting to resolve disputes or negotiating an Agreement. They muddle issues and create discord. Tuesday, May 21, 1963 was no exception to Leslie 's Absolute General Law! Joe 'Ehrmann and Willie Zenga were enraged by the fact that Messrs. Cherbonnier and Hankins palavered for over four hours at a meeting that was scheduled with you for the purpose of resolving important issues. Our delegates are paid , well to perform vital functions, not to waste their time with people who can only reply: "Only Mr. Pistilli can answer those questions." Within the next few days, Ehrmann made two or three telephonic attempts to reach Pistilli -106 On the last occasion , Hankins, with whom he spoke, asked the purpose of the call, but Ehrmann would not tell him. When Hankins suggest- ed he speak to Cherbonnier in the absence of Pistilli, Ehrmann's answer was a loud, "No! I do not want to talk to Mr. Cherbonnier!" I have, in my discussion of the hiring hall, earlier set forth details surrounding the Atlas walkout occurring on June 13 . Aware on June 11 or 12 of the impending problems created by the Company's importation of two nonunion operators, Cherbonnier called Respondent's office and asked for Leslie; Striner (or Macco, a clerk for Respondent ) said he was not there and that there was no one there with whom Cherbonnier could speak. Cherbonnier attended the meeting on the problem held June 14, but played only a minor part; his contribu- tion-made at Greaser's request-was the charge that what Respondent was seek- 105 I find Grossman, who has since died, to have been an agent of Respondent. 106 At the time , Pistilli was at Cape Canaveral. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing was a closed shop. - On June 16 or 17, Cherbonnier telephoned„ Ehrmann, asking if he could straighten out this (as well as the Auburn-supra) incident; Ehrmann said he had been instructed not to deal with Cherbonnier., At the meeting held on June 19, Leslie asked what Cherbonnier was doing there; and he said this was "typical" of the Company-injecting lawyers into labor business instead of dealing "man to man." i07 Cherbonmer attended the monthly grievance meeting held on June 8, 1963. At that time, Zenga said that Local 25 representatives would deal with Greaser or Pistilli (who were there) but not with Cherbonnier. Thereafter, other than recording 37 grievances , voiced by Respondent's representatives. Cherbonnier played no part. In fact, he was not present at all times. Just prior to July 1, 1963, Leslie called Pistilli., He said that many grievances were pending; he was not going to "wait on lawyers" for answers; and he needed immediate answers or there would be a general walkout. When Pistilli pointed out that the Company representative, Cherbonnier, was available for prob- lems, Leslie said that he would not meet with Cherbonnier "on these things and that he would not wait a month for answers." By an exchange of,telegrams, a telephone call, and a letter, a meeting was arranged for July 10, to discuss listed grievances. At the July 10 meeting Local 25, representatives pointedly addressed their remarks to company representatives other than Cherbonmer, but he actively participated in the discussion of grievances, and, without Local 25 objection, was assigned to draft what had been agreed to. Cherbonmer took part in a follow-up meeting on July '23. Among other things-after Pistilli insisted he be heard-he gave an extended explanation of his version of the hiring procedure. Although, since July 23, 1963, Company and Local 25 representatives have met periodically, that was the last meeting Cherbonnier attended.108 H. The Company's representative-concluding findings In agreement with the General Counsel, I find that Cherbonnier was persona non grata with Respondent so long as American held him out to be and as he attempted to function as the Company's representative in handling griev- ances. The insistence by Respondent's representatives, on many occasions, that, despite authority given him by the Company, they either would not deal with him at all or would not deal with him unless company representatives .were present, taken in connection with their suggestions to replace him, makes it evident that Local 25 was seeking to dictate American's choice of a bargaining representative. Section 8(b)(1)(B) provides: (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce . . . (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances. Clearly, 'Congress intended that an employer be able to bargain with a union through a representative of his own choosing.109 Nor does it make a relevant difference that-and this is an assumption rather than a finding in this case-he may lack immediate familiarity with the subject matter of particular grievances or even that he may be considered to the prone to take "legalistic" posi- tions.110 This is not to say that under all circumstances a union need ignore 107 As earlier indicated, the dispute was never settled 158 The General Counsel limits his attack in this respect to the period prior to July 30, 1963. 108Loeal 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et al. (K-C Refrigeration Transport Company, Inc.), 126 NLRB 1. 110 Indeed, an employer representative's history of union hostility has been held to be no defense Miscellaneous Warehousemen, Drivers and Helpers, Local 986, afJilated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Tak-Trak, Inc.), 145 NLRB 1511, Los Angeles Cloak Joint Board, affiliated with Inter- national Ladies' Garment Workers' Union, AFL-CIO, at al. (Helen Rose Co., Inc.); 127 NLRB 1543; but of N.L.R.B. v Kentucky Utilities Company, 182 F 2d 810 (CA. 6) (re- fusal of employer to deal with hostile union representative), in relevant respects refusing to enforce 76 NLRB 845. LOCAL 25, MARINE DIVISION, IUOE 543- all background facts which reflect on the bona fides or the integrity of a negotia- tor for an employer," but the present case; on this record, is deemed to be distinguishable. Respondent, in its defense, relies in part on Cherbonnier's "unavailability" for discussing grievances. In mid-1962, he was available 1 day per week. Subse- quently, he was to be at the Company's offices up to 3 days per week on- a scheduled basis but was to be available at^ any time for the discussion, of grievances. Obviously, he was available and present on many occasions, discussed above, on which Respondent's representatives refused to deal with him: ' Indeed, with respect to certain grievances, it appears that he was more 'available than' Respondents whom he tried to reach. I reject the defense. The sole remaining question is whether we have here "restraint" or • "coer- cion." The General Counsel's brief citations is' support' of his position 112 were cases in which the respective unions' "refusals to. deal" were backed up by strike' action. His confinement to these precedents was based, presumably, on his allega- - tion and contention that an object of, the strikes on the Baltic and on the Atlas, described,- supra, was the removal of Cherbonnier. I reject this position. I find that the sole object of Respondent's strike action on the Baltic was to protest the Company's elimination of the galley and the cut of the work: force by one deckhand per shift; to say that' Local 25's willingness to deal with Cherbonnier „.ay have avoided or shortened the strike is not to say that his removal was a strike objective. And I have earlier found that the object of Respondent's strike action on the Atlas was its protest over the hiring of nonunion operators; here again, the "run-around" given Cherbonnier was auxiliaiy to the main issues. Nonetheless, on this record, I find that Local 25 did restrain and coerce American in its selection of Cherbonnier In many ways, it clearly communicated the mes- sage sage that his retention would spell trouble'for American, on one occasion threaten- ing a general walkout ,if "immediate answers," believed to be held up by "law- yers," were not forthcoming; and on numerous occasions-since the settlement of grievances is a keystone' of collective bargaining-compelled, in substitution for or in addition to Cherbonnier, the attendance of Company officials who ordinarily would have been engaged elsewhere I would not require, as a means of "testing" the issue, and actual walkout which might attend the refusal of company officials to capitulate; their participation, thus required, was obviously of value in maintaining employee morale and uninterrupted production. Thus, it appears that Respondent's action was designed to exert restraint and coercion upon American above and beyond a mere attempt at persuasion in a free market- place of ideas.113 THE REMEDY Having found that Respondent has been and is engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action in order to effectuate the policies of the Act. Having found that Respondent has been and is violating Section 8(b) (1) (A) and (b) (2) of the Act by conditioning referrals to American for employment under their exclusive hiring arrangement upon membership in Respondent, I shall recommend that it cease and desist from so doing. (In view of the specific disclaimer by the General Counsel of any "individual remedies, I shall make no recommendations with respect to the hiring, reinstatement or compensating of any person or persons) In connection with such remedy, I shall recommend its communication to prospective employees of American by posted notice. Having found that Respondent violated Section 8(b)(1)(B) of the Act by refusing to bargain about grievances with American's duly designated representa- tive therefor, and by demanding and insisting upon his removal as such representa- tive, I shall recommend that it be ordered to cease and desist therefrom, and that it so notify American and the representative.114 "'See N L R.B. v International Ladies' Garment Workers' Union, AFL-CIO, at al. (Slate Belt Apparel Contractors Assn ), 274 F. 2d 376 (C A 3). Iva Local 294, International Brotherhood of Teamsters, et al (K-C Refriryeration Tans-- port Company, Inc ), supra, and Miscellaneous Warehousemen, Drivers and Helpers, Local 986,, etc. (Tak-Trak, Inc ), supra. ' ,113 Southern California Pipe Trades District Council No. 16 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, et al. (Paddock Pools of California, Inc., et al.), 120 NLRB 249, 250-251. 114 Los Angeles Cloak Joint Board et al. (Helen Rose Co., Inc.), supra, at 1544. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing factual findings and conclusions, I come to the following: CONCLUSIONS OF LAW 1. American is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. American and Respondent have been and are parties to an agreement, ar- rangement, and understanding whereby Respondent has been and is operating and maintaining an exclusive hiring hall with respect to prospective employees of American. 4. By conditioning, on various occasions on and after January 8, 1963, referrals for employment to American upon membership in Respondent, Respondent has been and is restraining and coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act; and has been and is causing, and attempting to cause, American to discriminate against em- ployees in violation of Section 8(a)(3) of the Act, thereby being engaged in unfair labor practices in violation of Section 8(b) (2) of the Act. 5. On various occasions between March 1 and July 30, 1963, by refusing to bargain about grievances with A. Victor Cherbonnier, American's duly desig- nated representative for the handling of grievances, and by demanding and insisting upon his removal as such representative, Respondent restrained and coerced an employer in the selection of his representative for the purpose of the adjustment of grievances, thereby engaging in unfair labor practices in violation of Section 8 (b) (1) (B) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Local 25, Marine Division, International Union of Operating Engineers, AFL-. CIO, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) In connection with the operation of its hiring hall, conditioning referral for employment to American Dredging Company upon union membership. (b) In any like manner, restraining or coercing prospective employees of American in the exercise of their right to self-organization, to form labor organi- zations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. (c) Refusing to bargain about grievances with A. Victor Cherbonnier as representative of the above employer for the handling of grievances; and demand- ing or insisting upon his removal as such representative. 2. Take the following affirmative action which I find'will effectuate the purposes of the Act: (a) Post at its hiring hall in Philadelphia, Pennsylvania, copies of the attached notice marked "Appendix." 115 Copies of such notice, to be furnished by the Regional Director for Region 4, shall, after being duly signed by an authorized representative of Local 25, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous US If this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of the United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." OGLE PROTECTION SERVICE, INC. AND JAMES L. OGLE 545 places, including all places where notices to registrants for employment are customarily posted. Reasonable steps shall be taken by Local 25 to insure that such notices are not altered, defaced, or covered by any other material. (b) Sign and mail copies of said notice to the Regional Director for Region 4 for transmission to and for posting by American Dredging Company, if willing, at places where notices to prospective employees are customarily posted. (c) Notify American Dredging Company, in writing, that it withdraws all objection to the employment of A. Victor Cherbonnier as a representative for the purposes of bargaining about grievances, and mail a copy of such notification to A. Victor Cherbonnier. (d) Notify the Regional Director for Region 4, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.116 118 If this Recommended Order be adopted by the Board, this provision shall be modified to read as follows: "Notify the Regional Director for Region 4, in writing, within 10 days of the date of this Order, what steps it has taken to comply herewith." APPENDIX NOTICE TO PROSPECTIVE EMPLOYEES OF AMERICAN DREDGING COMPANY Pursuant to the Recommended Order 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 notify you that: WE WILL NOT condition referrals for employment to American Dredging Company upon union membership. WE WILL NOT in any like manner restrain or coerce prospective employees of American Dredging Company in the exercise of their rights to organize; to form, join, or assist a labor organization; to bargain collectively through a bargaining agent chosen by themselves; to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any such activities (except to the extent that the right to refrain is limited by the lawful enforcement of a lawful union- security requirement). LOCAL 25, MARINE DIVISION INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Union. Dated------------------- By-------------------------------- ----------- (Representative) (Title) 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, 1700 Bankers Security Building,, Philadelphia, Pennsylvania, Telephone No. Pennypacker 5-2612, if they have any question concerning this notice or compliance with its provisions. Ogle Protection Service, Inc. and James L. Ogle and Interna- tional Union, United Plant Guard Workers of America, and its Local 114. Cases Nos. 7-CA-4108 and 7-CA-4244. Novem- ber 6, 1964 DECISION AND ORDER On April 17, 1964, Trial Examiner James R. Hemingway issued his Decision in the above-entitled proceeding, finding that the Respond- ents 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 attached Deci- 149 NLRB No. 50. 770-076-65-vol. 149-36