Master Stevedores Association of Texas

1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Master Stevedores Association of Texas , Houston Maritime Asso- ciation, Inc. and Their Employer-Members 1 and Lloyd C. Wil- liams, William Dixon, Arthur Perkins, Tommie Peques, Isaac Morning, James W. Hawkins , William C. Hunt, Earnest Clabron, and Occie R. Emanuel Local 872, International Longshoremen's Association, AFL-CIO and John Henry Owens, Eugene Harden, Ersle M. Warren, Adolph Williams, William D. Butler, Theo Gipson , Marshal E. Mosley, Lloyd C. Williams, William Dixon , Arthur Perkins, Clement Smith, George Blanks, Tommie Peques , Isaac Morning, James W. Hawkins, William C. Hunt, Earnest Clabron, and Occie R. Emanuel. Cases Nos. f3-CA-1425, 23-CA-145-92, 23- CA-145-3, 23-CA-1483, 23-CA-1515, 23-CA-1532, 23-CA-1601, 23-CA-1601-2, 23-CA-1601-5, 23-CB-428, 23-CB-428-2 through 23-CB-48-10, 23-CB-434, 23-CB-434-3. 23-CB-446, 23--CB-451, 23-CB-457, 23-CB-474, 23-CB-474-2. and 23-CB-474-5. Janu- ary 18, 1966 DECISION AND ORDER On May 21, 1965, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Respondent Employers and the Respondent Union had engaged in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, and recommended that the complaint be dismissed as to such allega- tions. Thereafter, the General Counsel and the Respondent Employ- ers filed exceptions to the Trial Examiner's Decision, and supporting briefs, and the Respondent Union filed cross-exceptions, a brief and appendix in support thereof, and a reply brief. Pursuant to the provisions of Section 8(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Zagoria]. 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 entire record in this proceeding, including the Trial Examiner's Decision, 1 The names of the Employer-Members of Master Stevedores Association of Texas and Houston Maritime Association , Inc, herein referred to as the Respondent Employers, are listed in the attached Appendix to the Trial Examiner 's Decision 156 NLRB No. 78. MASTER STEVEDORES ASSOCIATION OF TEXAS 1033 the exceptions , cross-exceptions, appendix , and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions, modifications, and exceptions. 1. Discrimination in hire : At all time material herein, the Respondent Union and the Respondent Employers were parties to a collective-bargaining agreement in which the Employers agree to hire all colored longshoremen employed in the loading and unloading of deep sea vessels in the port of Houston, Texas, through a hiring hall to be operated and administered by the Respondent Union "irrespec- tive of Union affiliation." Hiring was done at a daily shape-up by gang foremen or bolsters ( assistant gang foremen ). Gang foremen selected by the Respondent Master Stevedores Association of Texas from lists provided by the Respondent Union; the gang foremen occasionally designated bolsters to do the hiring . All gang foremen and bolsters were members of the Respondent Union. In 1961 the Union inaugurated a classification system by which it purported to classify all longshoremen working through its hiring hall on the basis of seniority. The system, which is more fully discussed below, clas- sified longshoremen as class A, B, C, or D, with those having the most seniority in class A; all longshoremen with less than 2 years' seniority were unclassified or casuals . The hiring hall rules provided that class A men be hired first at the shapeup, then class B, C, and D. The complaint alleges, inter alia, that the Respondent Union caused the Respondent Employers to discriminate against certain individual longshoremen when gang foremen or bolsters refused to hire them at a shapeup, contrary to the agreement and the hiring hall rules, because they were not members of the Respondent Union, or because they had filed with the Board unfair labor practice charges against the Respond- ent Union. In his discussion of these allegations, the Trial Examiner expressed the opinion that the evidence that longshoremen were rejected by gang foremen for jobs and were told it was because "Local" men were being hired first did not show unlawful discrimination. He relied on the ground that , when the classification system was first established, all members of the Respondent Union had been placed in class A, the word "Local" became for a period thereafter synonymous with "Class A," and there is no dispute that class A men were entitled to be hired first. The Trial Examiner expressed the further opinion that, to establish unlawful discrimination , there must be credible evidence not only that the alleged discriminates was refused hire because he was not a member or had filed charges with the Board, but also that another longshoreman of less seniority, in the same or a lower classification, was hired in his stead. We do not agree with these opinions by the Trial Examiner for the following reasons. 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the record shows, as the Trial Examiner found, that all members of the Resondent Union were placed in class A when the classification system was established, there is no support in the record for his finding that the terms "Class A" men became synonymous with the term "Local" men. Moreover, we note that there is no contention, and no evidence, that the word "Local" was used to mean residents of the Houston area. On the contrary, the record clearly shows, and we find, that all references to "Local" men were intended to mean "member of the Respondent Union," and were so understood. Moreover, the Trial Examiner's statement of the elements of proof necessary to show unlawful discrimination is contrary to the Board's established policy, which has been stated as follows : 2 Under the Act an Employer must consider a request for employ- ment in a lawful, nondiscriminatory manner, and the question whether an application has been given such consideration does not depend on the availability of a job at the time an application for employment is made. Consequently, the Act is violated when an Employer fails to consider an application for employment for reasons proscribed by the Act, and the question of job availability is relevant only with respect to the employer's backpay obligation. Thus, the primary issue here is whether the gang foremen or bolsters refused to consider the applicants involved for employment because of their nonmembership or because they had filed charges with the Board. Having examined all the evidence in the light of these princi- ples, we affirm the Trial Examiner's findings as to this issue except in the following instances, where the credible, undisputed evidence establishes that employees were discriminatorily denied employment. Eugene Harden, a class B longshoreman who was not a member of the Respondent Union, testified 3 that on August 3, 1962, he sought 2Shawnee Industries, Inc., Subsidiary of Thiokol Chemical Corporation, 140 NLRB 1451, 1452-1453, reversed in part on other grounds , 333 F 2d 221 (C.A. 10) ; Porter-DeWette Construction Co , Inc., 134 NLRB 963, 969. a The Trial Examiner stated in his Decision that he "cannot credit much " of Harden's testimony because Harden allegedly admitted that he had been physically disabled since 1957, had been unable to do much of the work a longshoreman is called upon to perform, had followed no particular gang for the past 10 years , had not sought work on the water- front since August 1962, and did not dispute earnings attributed to him during the period of alleged discrimination. For these reasons, the Trial Examiner concluded that the failure to hire Harden was not due to unlawful discrimination . Although Harden did testify that he had a physical disability resulting from a leg injury in 1952 , and had three operations on the leg in 1958 , he did not testify, and there is no evidence , that he was significantly limited in the longshore work he could do He testified , on the contrary, that although his foot gets "sore, if I walk on it much," and he did not "work every- thing," he is able to perform shifting-board , barrel-loading , hook-on, winch -operation, and flagman work . Indeed, the earnings attributed to him in March, April, and July 1962, indicate that he was capable of performing longshore work during the period that he was denied employment because of his nonmembership . The facts that he "followed no par- ticular gang" and has not sought employment on the waterfront since these events have no relevance to his credibility nor to any of the issues involved herein. Moreover, al- MASTER STEVEDORES ASSOCIATION OF TEXAS 1035 employment from gang foreman Joe Harris, who told Harden he was "hiring Local men first," and from gang foreman, F. R. Foreman, who stated, "Don't come around up here. I have to hire these 872 men first." Harden also testified that on August 7, 1962, he and Arthur Perkins, another nonmember class B longshoreman, requested jobs from bolster C. Stokes, who was hiring for Ike Harris' gang; that Stokes asked Harden for his number; 4 but that Stokes then noticed Robicheaux, a class C member of the Union, and hired him, stating to Harden, "I can't reach you." Earnest Clabron, a class D longshoreman who was not a member of the Respondent Union, testified that on April 23, 1963, bolster L. H. Patrick, hiring for the Green and Freer gang, denied Clabron's request for employment, stating that he was "hiring union men only." Clabron also testified that, on that same occasion, Patrick refused to hire class C longshoreman H. Randle, a nonmember, stating that "these Local men are still coming and I don't want to have to put you on the book and cut you off." 5 Arthur Perkins, a nonmember class B longshoreman, along with Eugene Harden, as described above, was, as found by the Trial Exam- iner," refused employment on August 7, 1962, by bolster Stokes, in preference to Robicheaux, a class C member. In addition, Perkins testified that on September 20, 1962, bolster A. L. Scott, writing book for the Jackson and Hocker gang, rejected Perkins' application, stat- ing that Scott was "hiring Local men." Tommie Peques, an unclassified nonmember, testified that gang foreman B. Harris refused to hire him on August 2, 1962, stating, "I am only hiring 872"; and that Charles Stokes, hiring for the Ike Harris gang, refused his application on August 9, 1962, stating, "I am only writing local men, only." though the Trial Examiner implied that Harden was not hired on the occasions described herein because of physical disability, none of the gang foremen so testified , nor is there any other evidence to support such an implication We are therefore convinced and find, on the record as a whole, that the Trial Examiner 's conclusions with regard to Harden's credibity and the reasons he was not hired are contrary to the preponderance of the evidence, and such findings are therefore tejected . 'Moreover, we credit Harden's testi- mony regarding the incidents set forth above , all of which was undisputed or not spe- cifically denied. 4A11 longshoremen were given MSAT (apparently an abbreviation for Master Stevedores Association of Texas) numbers for purposes of employment records on January 1, 1955, or upon first being employed thereafter. 6 Being "put on the book" constituted being hired or "picked up " at the shapeup. The Trial Examiner credited Clabron, and not Patrick's denial , as to the above conversation between Clabron and Patrick . We adopt this credibility finding and, in addition, credit Clabron's undisputed testimony regarding Patrick's remark to Randle 6 We do not adopt the Trial Examiner 's finding that Perkins was unlawfully refused employment by bolster Anderson , who was hiring for the Fleming and Moore gang on June 25, 1962, as the record clearly shows that Perkins worked on that gang that day. We agree, however, with the Trial Examiner that Perkins was not discriminatorily refused employment by bolster Hines on July 10, 1962. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Theo Gipson, a class D nonmember, testified that during the last 2 weeks in May 1962, he asked bolster Frank Young, hiring for the Davis and Graham gang, for a job; that Young asked Gipson "if he was a member of the local"; and that, when Gipson said "No," Young "passed him up." We find, as did the Trial Examiner, that the gang foremen and bolsters, who were supervisors responsible to the Respondent Employ- ers for the hiring and direction of their longshoremen, and were also responsible to the Respondent Union for the operation of its hiring hall, were therefore agents of both the Respondent Employers and the Respondent Union.7 We therefore find that, by the conduct of the gang foremen and bolsters in rejecting the requests for employment by Harden, Clabron, Randle, Perkins, Peques, and Gipson because they were not members of the Respondent Union, the Respondent Employ- ers discriminated against these individuals in violation of Section 8(a) (3) and (1) of the Act, and the Respondent Union caused this discrimination, in violation of Section 8(b) (2) and (1) (A). We shall therefore order the Respondent Employers and Union jointly and severally to make the discriminatees whole for any loss of pay and welfare plan credits and benefits they may have suffered by reason of the discrimination against them. 2. Alleged discriminatory practice in operating the hiring hall: The Trial Examiner concluded, in view of the fact that there were more than a hundred gang foremen and bolsters hiring many hundreds of longshoremen daily through this hiring hall, that the violations he found were not sufficient in number to support the allegation that the Respondents engaged in a practice of according discriminatory pref- erence to members of the Respondent Union at the shapeup. Although we have found additional violations, we likewise do not consider them sufficient to support this allegation. We also agree with the Trial Examiner that the Respondent Union did not violate the Act by charging nonmembers a referral fee for their use of the hiring hall operated by the Union. Accordingly, we shall dismiss these allega- tions of the complaint. 3. Coercive remarks: The Trial Examiner found that the foremen and bolsters made some of the above remarks indicating that only members were being hired, but failed to make any findings as to whether such remarks were, in themselves, unlawful. The General Counsel has excepted to the failure of the Trial Examiner to find that these remarks violated Section 8(a) (1) and 8(b) (1) (A) of the Act. We find merit in this exception as the remarks are clearly 7 Morrison-Knudsen Company, Inc, at al , d/b/a Robinson Bay Lock Constructors v. N.L.R.B., 275 F. 2d 914 (C.A. 2 ) , cert. denied 366 U S 909, N L R, B. v. Cement Masons Local No. 555, Operative Plasterers and Cement Masons International, AFL (Anderson- West-Fall), 225 F. 2d 168 (CA. 9). MASTER STEVEDORES ASSOCIATION OF TEXAS 1037 coercive. Accordingly, we find that the Respondent Employers and the Respondent Union violated Section 8(a) (1) and Section 8(b) (1) (A), respectively, by the remarks made by the gang foremen and bolsters to the effect that the discriminatees were refused employment because they were not members of the Respondent Union, and by the following remarks, attributed to the individuals indicated by credible, uncontradicted testimony : (1) Gang foreman J. H. Smith, in June 1962, told William D. Butler, as Butler testified, that the mem- bers had discussed Butler's filing of unfair labor practice charges, and that Butler "would most likely have to leave [the waterfront] because none of the foremen would hire me." (2) A few days after Eugene Harden filed a charge with the Board on May 7, 1962, A. J. Wilson, a member of the Respondent Union's board of directors and a gang foreman, told Harden, as Harden testified, "I don't see why you went up there. They can't help you. They cannot get you a job." Wilson then asked Harden why he had not taken his physical examination for union membership, and, when Harden replied that he did not have enough money to pay for an examination, Wilson stated, "Well, its going to be a lot tougher than it is on you if you don't get your initiation fee up." (3) Gang foreman, John Crawford, chair- man of the Respondent Union's board of directors, sometime after the above conversation between Wilson and Harden, according to Harden's uncontradicted testimony, told Harden, "if you will go down to the Labor Board, withdraw your charges, bring it in or have them mail it, you might stand a chance at getting into the Local." 4. Discriminatory seniority classification : The General Counsel contends that the Respondent Union unlawfully accorded preference to members and prospective members in its operation of the hiring hall seniority classification system. As referred to above, the system in effect during all times material to this proceeding provided that all longshoremen who had been con- tinuously engaged in loading and discharging cargo of deep-sea ves- sels in Houston for 16 years were in class A, for 10 years in class B, 5 years class C, and 2 years class D. The number of men in each class was limited, and those in class A, B, and C were required to work a thousand hours a year to maintain their classifications. Hiring prefer- ence was to be accorded on the basis of these classifications. The background facts show that on January 1, 1961, when the system was inaugurated, the Union had admitted no longshoremen to mem- bership for at least 10 years, and that only 150 of the several hundred Iongshoremen using the hiring hall were members of the Union. All members were given the class A rating, even though the record indi- cates that many of them had less than 16 years' service. Moreover, no nonmembers were placed in class A, even though some met the quali- 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fications for such classification. Thus, Willie Gill, a nonmember, was given a class B rating although he had 17 years' continuous service, and was told by the chairman of the Union's board of directors, when he protested, "You are not a, member of 872; you are not a Union man here. That is all you get is a `B."' Similarly, Tom Daly Watts, a nonmember, was given a class B rating, even though he claimed 22 years' service, and a member of the board of directors admitted to him that he had "been there long enough to get an `A' button." Although the classifications discussed above were given more than 6 months prior to the date the first charge was filed in this proceeding, and therefore cannot, as the Trial Examiner found, provide the basis for any unfair labor practice findings, the record clearly shows that the Respondent Union permitted the retention of such discriminatory classifications long after the beginning of the Section 10(b) period. The record shows that the Union admitted several hundred longshore- men to membership during the period 1961 to 1963, and gave higher classifications to some nonmembers who had been erroneously clas- sified, but that other erroneous classifications of nonmembers have not been corrected. Thus, nonmembers Gill and Watts are still in Class B, and the record contains no explanation or justification for the apparent continued discrimination against them. Moreover, 70 of the 617 longshoremen admitted to membership during the years 1961 to 1963 have retained or received, within the Section 10 (b) period, higher classifications than they were entitled to. In view of the back- ground evidence recited above,8 the number of such misclassifications operative thereafter, and the evidence of animus against nonmembers on the part of union officials discussed above, we disagree with the Trial Examiner's conclusion that these misclassifications were the result of unintentional mistakes. The only evidence to this effect con- sisted of the testimony of J. H. Washington, a member of the Union's board of directors, and pertained only to the two most flagrant instances of preferential classification, those of members Emory Eng- lish and Joshua Capiti who, so far as the record shows, first worked as longshoremen in Houston in 1956 and 1955, respectively, and were therefore qualified as class C men only, but were both placed in class A, and retain this classification although they reside in California and apparently visit Houston only once a, year at Christmastime. As Eng- lish and Capiti continue to hold their class A ratings in spite of the fact that their preferential status is common knowledge at the hiring hall, we find incredible Washington's testimony that their unjustified classifications were a mistake. 8 Such evidence is relied on only to shed light on the true character of matters occurring within the Section 10 (b) period. Local Lodge No. 1424, International Assocuattion of Machinists, AFL-CIO, et al. v. N.L.R.B. (Bryan Manufacturing Co ), 362 U S. 411, 416. MASTER STEVEDORES ASSOCIATION OF TEXAS 1039 Nor is this issue rendered moot by testimony of officials of the Respondent Union that it has, since the complaint herein issued, "spent thousands of dollars" trying to obtain from the Federal Government accurate employment records for use allegedly in a planned reexam- ination of all classifications.9 Accordingly, we find, contrary to the Trial Examiner, that the Respondent Union applied its seniority sys- tem in a disparate manner, giving preference to union over nonunion longshoremen to be employed by the Respondent Employers through the Union's hiring hall, and thereby caused and attempted to cause the nonunion longshoremen to be discriminated against in violation of Section 8(b) (2) and (1) (A) of the Act.10 Accordingly, we shall order the Respondent Union to reappraise and reexamine the work records of the longshoremen who work out of its hiring hall, and to accord to all the seniority status to which they are entitled without discrimination based upon membership in the Respondent Union." 5. We find, in agreement with the Trial Examiner, that the Respondent Employers violated Section 8(a) (2) and (1) of the Act by permitting their gang foremen and bolsters to participate, as union committee members representing the employees, in collective- bargaining negotiations with the Employers. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. The Respondents Master Stevedores Association of Texas, Houston Maritime Association, Inc., Houston, Texas, and their Employer-Members listed in the attached Appendix of the Trial Examiner's Decision, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in Local 872, International Long- shoremen's Association, AFL-CIO, or in any other labor organization, by giving preference in employment to members of such organization, or in any other manner discriminating against employees or applicants for employment in regard to their hire or tenure of employment or other terms or conditions of employment. (b) Interfering with the administration of the above-named Union, or contributing support to it by permitting gang foremen or assistant foremen to participate in collective-bargaining negotiations as repre- sentatives of said Union. 9 Cf. Seine and Line Fishermen's Union of Saar Pedro , affiliated with Seafarers' Inter- national Union, AFL-CIO (William J. Horner, et al.), 136 NLRB 1, footnote 2. 10 Local 1367, International Longshoremen's Association, AFL-CIO (Galveston Mari- time Association, Inc., of al. ), 151 NLRB 810. 11 Id. at 15. 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify Arthur Perkins, Eugene Harden, Earnest Clabron, H. Randle, Tommie Peques, Theo Gipson, and the above-named Union, in writing, that the Respondent Employers have no objection to the employment of these individuals or the employment of any other long- shoremen who are not members of said Union. (b) In the event that the above-named individuals are presently serving in the Armed Forces of the United States notify them in writing, that it has no objection to their employment on the ground that they are not members of the Respondent Union, upon application, in accordance with the Selective Service Act and the Universal Mil- itary Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of benefits, credits, and backpay due under the terms of this Order. (d) Post at their offices and places of business in the port of Hous- ton, Texas, copies of the attached notice marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for Region 23, shall, after being duly signed by a representative of Master Stevedores Association of Texas and Houston Maritime Association, Inc., be posted by the Respondent Employers immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Employers to insure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same places and -under the same conditions as set forth in (d) above, as soon as they are received from the Regional Director, copies of the Respondent Union's notice. (f) Mail to the said Regional Director signed copies of the attached notice marked "Appendix A" for posting by the Respondent Union. B. The Respondent Local 872, International Longshoremen's Association, AFL-CIO, it officers, agents, and representatives, shall : 1. Cease and desist from : (a) Causing or attempting to cause the Respondent Employers to deny employment to Arthur Perkins, Eugene Harden, Earnest Clab- ron, H. Randle, Tommie Peques, and Theo Gipson, or any other applicant for employment, in violation of Section 8 (a) (3) and (1) of the Act, or otherwise to discriminate against them because they are not members of the Respondent Union. MASTER STEVEDORES ASSOCIATION OF TEXAS 1041 (b) Maintaining or giving effect in its hiring hall operations to. discriminatory seniority classifications. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify Arthur Perkins, Eugene Harden, Earnest Clabron, H. Randle, Tommie Peques, Theo Gipson, and the Respondent Employers,, in writing, that the Respondent Union has no objection to the employ- ment of these individuals, or any other longshoremen, on the ground that they are not members of the Respondent Union. (b) In the event that the above-named individuals are presently serving in the Armed Forces of the United States, notify them, in writing, that it has no objection to their employment on the ground that they are not members of the Respondent Union, upon application,, in accordance with the Selective Service Act and the Universal Mil- itary Training and Service Act of 1948, as amended, after discharge, from the Armed Forces. (c) Reexamine and reappraise the work records of all longshore- men working through its hiring hall, and accord them the seniority status to which they are entitled without discrimination. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records pertaining to the, seniority system, employee classifications, and employment through its hiring halls, and all other records necessary to analyze the seniority classifications and the amount of benefits, credits, and backpay due under the terms of this Order. (e) Post at its business offices, meeting halls, and hiring halls in Houston, Texas, copies of the attached notice marked "Appendix B."' Copies of said notice, to be furnished by the Regional Director for- Region 23, shall, after being duly signed by a union representative,, be posted by the Union immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure, that said notices are not altered, defaced, or covered by any other material.12 (f) Post at the same places and under the same conditions as set forth in (d) above, as soon as they are received from the Regional Director, copies of the Respondent Employers' notice. (g) Mail to the said Regional Director signed copies of the attached notice marked "Appendix B" for posting by the Respondent Employers. 11 In the event that this Order is enforced by a decree of a United States Court of- Appeals, there shall be substituted for the words "a Decision and Order" both in the- notices to be signed by the Respondent Employers and in those to be signed by the- Respondent Union, the words "a Decree of the United States Court of Appeals, Enforcing_ an Order." 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Respondent Employers and the Respondent Union, their officers, agents, successors, assigns, and representatives, shall : 1. Cease and desist from : (a) Telling employees or applicants for employment that they will be discriminated against because they are not members of the Respond- ent Union or because they filed charges with the National Labor Relations Board. (b) In any other manner restraining or coercing employees or appli- cants for employment in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally make whole Arthur Perkins, Eugene Har- den, Earnest Clabron, H. Randle, Tommie Peques, and Theo Gipson for any loss of pay they may have suffered by reason of the discrimina- tion against them, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy," as modified by this Deci- sion and Order. (b) Jointly and severally make whole the above-named individuals for any loss of welfare plan benefits and credits they may have suffered by reason of the discrimination against them. (c) Notify the Regional Director for Region 23, in writing, within 10 days from this date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges unfair labor practices not found herein, be, and it hereby is, dismissed. APPENDIX A NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT encourage membership in Local 872, International Longshoremen's Association, AFL-CIO, or any other union, by giving preference in employment to members of such Union, or in any other manner discriminating against employees in regard to their hire or tenure of employment. WE WILL NOT interfere with the administration of the above- named Union by permitting our gang foremen or assistant fore- men to serve as representatives of said Union in collective- bargaining negotiations with us. WE WILL NOT tell employees that they will be discriminated against because they are not members of the Respondent Union or because they file charges with the National Labor Relations MASTER STEVEDORES ASSOCIATION OF TEXAS 1043 Board, or any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed by the Act. WE WILL notify Arthur Perkins, Eugene Harden, Earnest Clab- ron, H. Randle, Tommie Peques, and Theo Gipson that we have no objection to their employment. WE WILL make whole the above-named longshoremen for any loss of pay and welfare plan benefits and credits they may have suffered as a result . of the discrimination against them. MASTER STEVEDORES ASSOCIATION OF TEXAS AND ITS EMPLOYER-MEMBERS, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) HOUSTON MARITIME ASSOCIATION, INC. AND ITS EMPLOYER- MEMBERS, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NOTE.-We will notify the above-named individuals, in writing, if presently serving in the Armed Forces of the United States, that we have no objection to their employment on the grounds that they are not members of the Respondent Union, upon application, in accord- ance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. 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. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Ave., Houston, Texas, Telephone No. 228-4722. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 872 , INTERNATIONAL LONGSHORE- MEN'S ASSOCIATION , AFL-CIO , AND TO ALL LONGSHOREMEN WORK- ING OUT OF OUR HIRING HALL Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause Master Stevedores Association of Texas, Houston Maritime Association, Inc., or their 217-919-66-vol. 15 G-6 7 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer-Members, or any other employer, to deny employment to any applicant for employment because of lack of membership in our Union or otherwise to discriminate unlawfully against applicants for employment. WE WILL NOT maintain or give effect to discriminatory seniority classifications in the operation of our hiring hall. WE WILL NOT tell employees that they will be discriminated against because they are not members of this Union or because they file charges with the National Labor Relations Board, or in any other manner restrain or coerce employees or applicants for employment in the exercise of rights guaranteed by the Act. WE WILL reexamine and reappraise the work records of all longshoremen working through our hiring hall and accord them the seniority status to which they are entitled without discrimina- tion based upon membership in our Union. WE WILL notify Arthur Perkins, Eugene Harden, Earnest Clabron, H. Randle, Tommie Peques, Theo Gipson, and the above- named Employers, in writing, that we have no objection to the employment of these longshoremen. WE WILL make whole the above-named longshoremen for any loss of pay and welfare plan benefits and credits they may have suffered as a result of the discrimination against them. LOCAL 872, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) NOTE.-We will notify the above-named individuals, in writing, if presently serving in the Armed Forces of the United States, that we have no objection to their employment on the grounds that they are not members of the Respondent Union, upon application, in accord- ance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. 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. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Ave., Houston, Texas, Telephone No. 228-4722. MASTER STEVEDORES ASSOCIATION OF TEXAS 1045 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon the several charges filed by the several individuals in the above-entitled cases on several dates between May 3, 1962, and November 26, 1962, the General Counsel of the National Labor Relations Board issued an order consolidating the. cases and an original complaint on March 29, 1963. The complaint was thereafter amended on June 25, and November 7, 1963. Answers and amended answers were duly filed by the Respondent Union and the Respondent Employers. As finally amended the complaint alleges and the answers deny that the Respondent Union has engaged in and is engaging in unfair labor practices in violation of Section 8(b)(1) (A) and (2) of the National Labor Relations Act, as amended, and that the Respondent Employers have engaged in and are engaging in unfair labor prac- tices in violation of Section 8(a)(1), (2), and (3) of the Act. Pursuant to notice: hearing sessions were held in Houston, Texas, on several dates between October 16, 1963, and February 11, 1964, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented by counsel, and were afforded fulf opportunity to present evidence pertinent to the issues, to argue orally, and to file: briefs. Briefs have been received from all parties. After the close of the hearing and upon request of the parties the time for the filing of briefs was repeatedly extended upon assurance that progress was being made in the efforts to reach an amicable settlement of the controversy. After a year of such efforts, it appears that settlement was not acceptable to General Counsel. Upon the record thus made, and from my observation of the witnesses (recollec- tion of which is somewhat dimmed by the long passage of time), I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT EMPLOYERS At all times material to these cases the Respondent Stevedores and Respondent Association have been Texas corporations with office and place of business in Hous- ton, Texas . They are associations of employers engaged in the loading and discharg- ing of vessels in the ports of Texas, including Houston. The two associations , among other functions, negotiate and administer collective- bargaining agreements on behalf of their members , listed in the attached Appendix, with labor organizations , including the Respondent Union . At times material herein such agreements were in existence. During the year preceding issuance of the original complaint said employer- members furnished stevedoring services to steamship companies operating vessels in interstate and foreign commerce valued at more than $500,000. The Respondent Stevedores , the Respondent Association , and the Respondent employer-members listed in the attached Appendix are employers engaged in com- merce within the meaning of the Act. Local 872, International Longshoremen 's Association , AFL-CIO, is a labor orga- nization admitting to membership employees of the employer -members described above. III. THE UNFAIR LABOR PRACTICES _ A. Setting and chief issues In substance, all issues raised by General Counsel arise from what he claims are unlawful hiring practices of Local 872 on the Houston waterfront, engaged in from November 1961. More specifically, General Counsel alleges that: (1) The Respondent Union has violated the Act by causing the Respondent Employers to discriminate in the hiring of certain individuals because: a. they were not members of the Local; and b. they had filed charges with the Board. (2) The Respondent Local and the Respondent Employers have violated the Act by maintaining an unlawful hiring practice which accorded preferential hiring to members of the Local. (3) The Respondent Local and the Respondent Employers have violated the Act by enacting an excessive referral fee discriminatory as to non-members of the Local. 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) The Respondent Local and the Respondent Employers have violated the Act by discriminating against non-members of the Local by: a. arbitrary, invidious and unfair assignments of seniority standing; and b. assignments of seniority standing based upon membership in the Local. (5) The Respondent Employers have violated the Act by lending unlawful assistance to the Respondent Local in that certain supervisors have represented the Local in negotiations with the Employers. As to allegation ( 3), above, I believe that this issue has recently been disposed of by the Board in Local 1367, International Longshoremen 's Association, AFL-CIO (Galveston Maritime Association , Inc., et al. ), 151 NLRB 810, issued March 25, 1965, and at an appropriate point hereinafter it will be recommended that this portion of the complaint be dismissed . It would appear to be pointless to find, even if the evidence warranted , that such fees are unlawfully discriminatory since the Board has now "acquiesced (d)" in four decisions declining to enforce remedial orders on this point. As indicated above, the chief issues concern the claim of discriminatory hiring practices in general by Local 872 and of numerous specific discriminations against certain individuals on certain dates. In order to appraise conflicting testimony concerning alleged instances of specific discrimination , it is necessary to have some acquaintance with probabilities inherent in the hiring hall procedure on the Houston waterfront . A summary of the credible evidence as to this procedure is appropriate at this point. By virtue of a written agreement between the Respondent Employers and the Respondent Local, all hiring of deep-sea longshoremen , insofar as this Local is concerned,' during the material period has been done through the Local 's hiring hall. The same agreement , the validity of which is not challenged by General Counsel, specifically provides that there shall be no unlawful discrimination by the Local in the referral of men to jobs. Gang foremen, selected by the Respondent Employers from lists submitted by the Respondent Local, have supervision on shore of placement of all men in their gangs, subject to the approval of a "walking foreman," who is the Respondent Employer's representative on "ship side ." In many instances the gang foreman delegates the actual selection of men to one of that gang termed a "bolster." The record reveals uncounted references to longshoreman "A" "writing the book" for gang "B." Early in 1961 , and preceding the time of alleged unlawful practices , the Respond- ent Local set up a seniority system whereby longshoremen , according to the number of years they had been engaged in such work on deep-sea vessels in that area, were given classifications A through D, inclusive . (General Counsel does not claim that this classification system is unlawful, but only that certain inequities in its applica- tion and maintenance are violative of the Act.) For some time following the inauguration of this classification system , each long- shoreman (except casuals) was given a button which, by its color, denoted the specific classification in which he belonged. Gang foremen then picked up for their gangs according to the colored button a longshoreman wore-the "A " men first, then the "B," etc. After a period it was discovered that longshoremen waiting to be "picked up" were "switching" buttons, and the Local then shifted from colored buttons to those bearing the picture of the individual to whom it had been assigned according to his classification. Even this system developed flaws, and later a longshoreman, selected for a gang, was required to give the foreman his button while he was on that gang. Finally, in May 1963, the method was again changed to one by which the longshore- men were gathered in groups for selection , each group being according to classification. Concurrent with the changes made in the button system there have been improve- ments in the physical areas for the selection by gang foremen of men to be in their gang. At first the foremen picked up his men who met at various spots on a lot in front of the small union hall. Many more men than needed would mill around a foreman, seeking selection . Confusion continued even after a new hall was built, and when longshoremen gathered outside. Since then the Local has built a special building large enough to accommodate the hundreds of men seeking work, in clearly separate areas according to classification. During the material period gangs have been "picked up" by gang foremen or their "bolsters" for jobs beginning, in the morning , at 7, 8, and 10 o'clock, and in the 1 Negro longshoremen at Houston are members of and /or are hired through Local 872. Local No. 1273 is the sister local at this port and through its hiring hall white longshore- men work. Waterfront work of this nature is evenly shared between these two locals. MASTER STEVEDORES ASSOCIATION OF TEXAS 1047 afternoon at 1, 3, and 7 o'clock. They began selecting gangs about 45 minutes before each of the hours, and the books were required to be closed 30 minutes before the hour. As to the alleged "practice" of discriminating against nonmembers, I find at this point that the evidence fails to sustain the allegation. Until early in 1961, when the seniority system was set up, there were but about 150 members of the Local. Yet records establish that several hundred longshoremen were being hired daily-obvi- ously refuting the claim of a general practice Shortly after inauguration of the seniority and classification system the Local began to admit an increasing number of applicants to membership. It appears that some 600 new members were taken in between early 1961 and late 1963. Union officials at the hearing readily admitted that some mistakes had been made in issuing classifications, but contended that a good many thousands of dollars were being spent by the Local trying to obtain accurate information from Government records to rectify such mistakes. Until such employment records were made avail- able, the Local had had to depend upon whatever claims as to service on the water- front, a longshoreman chose to put upon his application for classification The first issue for determination is whether or not, in specific instances, unlawful discrimination in hiring has occurred. Consideration of that issue appears next below. B. Alleged instances of discrimination against specific individuals As indicated in the caption of the cases , 18 individuals filed charges against the Local and/or the Employers alleging instances of unlawful refusal to hire. Of these 18 individuals , neither Hawkins (Cases Nos . 23-CA-1532 and 23-CB- 457), nor Hunt (Cases Nos. 23-CA-1601 and 23-CB-474 ) were called to testify as to any matters . In his brief General Counsel agrees that all allegations of the consolidated complaint pertinent to these two individuals should be dismissed. To this extent the general motion of the Respondents made at the close of the hearing for dismissal is hereby granted. Also in his brief General Counsel voices his belief that the evidence in the record is insufficient to sustain allegations of discrimination against charging individuals Warren and Blanks. I agree. Blanks, in particular, not only has been employed elsewhere since 1949, but could not recall even the month when his brother-in-law, a foreman, said he could not give him a job. The consolidated complaint is hereby dismissed as to all allegations pertaining to these two individuals. The cases of the remaining 14 individuals are separately reviewed below. At the outset, however, it appears appropriate to state that I cannot, and do not, find that actual discrimination occurred when, as several witnesses testified , upon asking a foreman for a job they would be told that "Local" men were being hired first. As noted above , when the classification system was set up in 1961 all members of Local 872 were placed in class "A." For a considerable period, at least, thereafter class "A" longshoremen , as a term, became synonymous with "Local men " And General Counsel apparently makes no claim that under the hiring procedure avail- able class A men should not be properly hired first. To find actual discrimination, I believe, there must be credible evidence that the charging individual was refused hire while another individual , of lesser seniority in the same or lower classification , was hired . And, of course , to conclude that such discrimination , if any, was unlawful, there must be adequate proof that the reason- ably probable motive for the refusal to hire was , as General Counsel alleges , because the individual discriminated against was not a member of the Local, or because he had filed charges with the Board. 1. L C. Williams This individual testified as to a considerable number of claimed instances when he was denied employment by various foremen and "bolsters." It appears to me to be unnecessary here to attempt to unravel most of the somewhat confused and incon- sistent testimony, in view of my ultimate conclusion that I cannot place reliance upon any such testimony where not supported by more credible evidence. I cannot credit Williams' testimony for the following reasons: a. After a good deal of evasive testimony on cross-examination he admitted that he had not, for about 8 years, followed regular cargo gangs, but "extra" gangs, where the work is less hard. He also admitted, finally, that he did not "work grain" because of the "dust." b. After stating both on direct examination and at first on cross examination that he "couldn't get any work in February 1963," he finally admitted that the reason he did not work that week was because "I didn't want to." 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. On direct examination he said he had not worked for a year before May 1963. On cross-examination headmitted that he could have worked in January 1963, but didn't. He also admitted, finally, that he did get work in July 1962. d. He testified that on July 27, 1962, one J. J Crawford was hiring for the Jose Harris gang, but refused to hire him, holder of a "B" button, but did hire one Tatum, a "C" man and a member of the Local. Not only did Crawford flatly deny that he had ever hired or "picked up" men for any foremen, but General Counsel finally stipulated that records show Crawford was not even working on that gang that day. It will be recommended that the complaint be dismissed as to L. C. Williams. 2. Eugene Harden Although I must confess to considerable sympathy for this individual, I cannot credit much of his testimony upon which General Counsel relies for his allegation of discrimination because of his lack of membership in the Local. Incidents claimed occurred, according to Harden, during the months of May, July, and August 1962 As the record itself reveals, by his own admission he has been physically disabled at least since 1957, and "three operations on one [leg] in 1958." For the past 10 years, he further testified, he had followed no particular gang and since August 1962, has not sought work on the waterfront. He also admitted being unable to do much of the work a longshoreman is called upon to perform. Nor did Harden disputt amounts of earnings cited to him, upon cross-examination, purporting to be read from records during the period of the claimed discrimination. In short, I am not convinced that on the occasions he was not picked up, such failure was unlawful discrimination. It will be recommended that the complaint be dismissed as to Harden. 3. Isaac Morning This individual testified as to some 20 incidents of claimed discrimination occur- ring in August, September, and October, 1962. As to most of them his account is flatly denied by the hiring foreman or bolster involved, thus raising sharply the question of credibility. I have carefully reviewed this testimony, as well as that of those to whom I attributed certain remarks and actions and conclude that insufficient reliance can be placed upon any part of his long account to sustain the allegations of the complaint as to him, for the following reasons a. Morning admitted early in his testimony that he was without any independent recollection as to the incidents, but would have to refer to a notebook, in which he at first said he had made notations as events occurred. When it was pointed out to him that the notebook appeared new, he then said he had copied previously made notes into it-such notes having been made in another book which he no longer possessed. When asked what the original book looked like he replied "I ain't going to tell you that." Later he finally admitted that he did not write in the book used to refresh his recollection-but that his wife did. b. Morning claimed that on October 9, 1962 he was refused a job on a certain gang by one Hines, who thereafter did hire one Blaylock. Documentary evidence refutes his claim that Blaylock was hired. c. Morning claimed that on August 24, 1962 he was denied a job by Foreman Gray who thereafter hired one Brown-a union member according to his testimony on direct but on cross examination he admitted he did not know. From the hiring list that day it is clear that Gray did not do the hiring and therefore could not have refused Morning a job. d. Morning claimed that on September 5, 1962 he was refused a job by Foreman Davis, who then hired a Local member, M. Brown. The gang list for that day shows that one Anderson had been the foreman that day and had picked up the men. e. Morning claimed that on September 6 he was denied a job by Foreman Cheeks, who thereafter hired one Gant-a member, according to Morning. The gang list for that day shows that Cheeks did not even work that day. Moreover, General Counsel finally stipulated that Gant was not a member of the Local at that time. The record contains other credible contradictions, both oral and documentary, of Morning's testimony, similar to those set out above It will be recommended that the complaint as to Morning be dismissed.2 2 While obviously not determinative as to Morning's credibility, I note that General Counsel himself asked for a stipulation that Morning had filed a charge against the Local in June 1961, which was withdrawn, and another charge in August 1961, which was later dismissed. MASTER STEVEDORES ASSOCIATION OF TEXAS 1049 4. Earnest Clabron According to this longshoreman's credible testimony he asked L. H. Patrick, a bolster hiring for a gang on April 23, 1963. Patrick turned him down, stating that he was "hiring union men only." A document placed in evidence-the hiring list for that gang that day-establishes that Patrick in fact hired only members of the Local, and that Clabron was not employed. While the evidence establishes grounds for suspicion that Clabron may actually have been discriminated against on this occasion, I do not believe that suspicion war- rants a finding. The hiring list referred to fails to show, so far as I can discern, the classifications of the longshoremen hired on this gang. In view of the hiring pro- cedure, described heretofore and to which General Counsel finds no fault in theory, longshoremen in higher classification categories are supposed to be hired first. And as previously noted, discrimination cannot validly be found unless there is clear evidence that the alleged discriminatee was denied employment when others of the same or lower classifications were employed. Clabron was a "D" man-at the bottom of the classification list except for casuals. Since it was stipulated that no "D" men were members, the weight of evidence seems to indicate that all men hired on the occasion in question were "C" men or higher in classification. It will be recommended that the case involving Clabron be dismissed. 5. Occie Emanuel After much initial confusion as to days and months when put on the witness stand by General Counsel, Emanuel finally claimed that someone by the last name of Morris was hiring for the Hobbs-Broussard gang sometime in February 1963. Emanuel said he asked Morris for a job, but was told to come back a little later, since only "local" men were then being hired. He did go back a few minutes later, and according to him was put on the hiring list. The state of the record is such that, from the point of hiring on, I am unable to determine precisely what did happen. Emanuel at first said that while he was changing his clothes to go to the ship, Morris called over the "loudspeaker" that he did not have the job. Yet he then testified that "In the meantime, I got to the ship" and then was "bumped off" by someone named McHenry. The credible testimony of R. Burleson, originally named by General Counsel as the hiring agent on this occasion, is to the effect that no one by the name of Morris ever wrote for his gang. In any event, I find the evidence insufficient to sustain the allegation of any discrimination against Emanuel on this occasion. Emanuel also claimed that on April 15, 1963, one Ed Caldwell, hiring for the McHenry-Williams gang, refused him a job saying he was hiring Local men only. Not only is there no credible evidence that any Local member was actually hired in the job for which his classification did not qualify him, but Caldwell credibly denied that he had ever written "the book" for any gang, much less on the date claimed. Caldwell also credibly testified that during his long service on the waterfront he had only once even worked on this gang. It will be recommended that the complaint be dismissed as to Emanuel. 6. William Dixon I can place no reliance upon this individual's testimony as the sound basis for finding any specific discrimination. He did testify as to one occasion, on June 24, 1962, when he asked Foreman B. Harris for a job. According to Dixon, Harris told him, "You know how they are running here in the local and you know I got to hire these union men first or I will be fined twenty-five dollars." Even if I reject Harris' flat denial that he made this statement, Dixon made no claim that a job was available on this gang for which he was qualified and which was given to some Local member with lower classification. Much of Dixon's testimony is vague and confusing, as the record shows, and a fact admitted by General Counsel in his brief At the time of the hearing Dixon was 68 years old, and when working on the waterfront said he generally performed "shifting board"-or carpentry-work. And he admitted that he has retired from longshore work. It will be recommended that the complaint be dismissed as to Dixon. 7. Arthur Perkins Perkins is not a Local member, but at the material period held a "B" classification. On June 25, 1962, according to Perkins' credible testimony, he asked one Anderson, who was "writing the book" for the Fleming-Moore gang, for a job, but was told that he was "writing the local men on." Documentary evidence, the hiring slip that 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day, establishes that Local member H. Scott, who had but a "C" classification, was employed on that gang. It is clear, and is found, that Perkins was discriminatorily refused hire on this occasion because he was not a union member I do not credit Perkins' testimony to the effect that he was denied employment on July 10, 1962, by bolster Hines while a union member, one Luter, of the same classification was hired. As a witness Hines produced his actual hiring book and Luter's name does not appear upon the listing for either of two gangs "written" by this bolster that day. On August 7, 1962, Perkins sought work on the "Ike Harris" clean-up gang from one Stokes, a longshoreman of "C" classification who was "writing" for this gang. Instead of hiring Perkins, with a higher classification, Stokes hired one Robicheaux, who had only a "C" classification but was a Local member. I conclude and find that Perkins was unlawfully refused hire on this occasion. 8. Tommie Peques Although this individual 'testified to three occasions in August 1962 (two on August 2 and another on August 9), when he was told by the hiring bolster or fore- man that only Local men were being hired, there is no credible evidence that he was actually refused employment while union members were hired in his place. While he claimed to have been working on the waterfront since 1948, it appears that he had made no real effort to obtain any classification until during the hearing. It will be recommended that the complaint be dismissed as to allegations of discrimination against this individual. 9. John Henry Owens As in the case of Eugene Harden, described above, I must admit having consider- able sympathy for Owens He had been working out of Local 872, although not a member, from 1946 until March 1960, when he lost a leg in an accident on the job. He was in the hospital for an undetermined period. "When it got to where I could get around a little," he testified, which was "along about in July 1962" he went back to the waterfront to "see what kind of consideration" he could get. As a witness he admitted he could only do "some lobs" on the waterfront. Despite his above- quoted testimony, the first formal document placed in evidence by General Counsel indicates that he signed the initial charge against the Local on May 3, 1962, claiming discrimination "at all times" after November 1961. And adding to confusion is his testimony, on cross-examination, elicited with the aid of a pretrial statement given to a Board agent, to the effect that he had obtained work in 1961 but had been unable to work a full shift. Not only because of the above factors, but for reasons itemized below, I am unable to rely sufficiently upon Owen's testimony to find that General Counsel has sustained his allegations as to this individual: a. Owens claimed that on June 2, 1962 he was refused to job by one Allen Anderson, who told him he was hiring "all Local men " The gang list is in evidence, and fully supports Anderson's testimony that he did not work that day and so would have had no occasion to refuse Owens a job. b. Owens claimed that on July 9 he was refused a job by one Phlegm, who told him he was hiring only Local men The hiring list for that gang that day is in evidence, and credible testimony shows that at least 10 of the 15 hired were not Local members. c. Owens claimed that on July 7, 1962 he was refused a job by Frank Young, hiring for the Davis-Graham gang. He contended that Young told him that he had to pick up his "local men" first. He stood around, he said, but was not given a job. The hiring list is in evidence, which not only establishes that Young did not work on it but also that half of the gang hired were actually non-members of the Local. 10. Clement J. Smith I am unable to find from Smith's testimony, even if credited, that on any date he was actually refused employment while another longshoreman, a union member with the same or lower classification, was hired. He testified to two or three occasions when a foreman told him he was picking up "Local men" at the time, but named no one who was hired in whose place he should properly have been chosen. Smith had a "C" classification, and it is obvious that "A" and "B" men had precedence over him in the hiring. It will be recommended that the complaint be dismissed as to this individual. 11. Theo Gipson As in the case of Smith, above, the nature of Gipson's testimony is such that I am unable to find actual discrimination in hiring on any date. He testified vaguely as to MASTER STEVEDORES ASSOCIATION OF TEXAS 1051 some date in 1962 when someone by the name of Burleson was hiring for some gang he thought was called "Guillory and Perkins ." It was obviously impossible to expect the Respondent to go through the thousands of hiring slips for the entire year of 1962 to meet testimony , if any there had been, as to who was hired when Gipson should have been hired . Sometime in May 1962, Gipson also said, he had not been hired by one Young after the latter had asked him if he were a union member. There is no evidence as to who, if anyone , was hired in his place . It will be recommended that the complaint be dismissed as to Gipson. 12. William D. Butler Butler's testimony, also, lacks the specificity necessary to establish actual discrim- ination. While he told of incidents which he said occurred sometime in various months, he cited no instance when a union member, of the same or lesser classification, was hired in his place . It will be recommended that the complaint be dismissed as to Butler. 13. Adolph Williams As a witness Williams testified that on April 17, 1963, one Otis Whitfield , hiring for the Whitfield and Graves gang, declined to give him a job after telling him he was hiring only Local men and then actually hiring one Chassion, also in the "C" classi- fication but a member of the Local. Williams' testimony as to this incident was completely refuted by the testimony of the foreman of the gang , Graves, and by the hiring list itself, in evidence. Both Graves and the document establish that neither Otis Whitfield nor Chassion worked on the gang that day. It will be recommended that the allegation as to this individual be dismissed. 14. Marshall Mosley Mosley testified as to one instance which he said he thought occurred on May 14, 1962, and the substance of such testimony is to the effect that one Sayles told him, when he showed him his "C" button, that this button would get him no job on his gang because he was hiring "Local men and gang men." Not only did Sayles credibly deny making this statement, but the hiring list in evidence shows that on that date and gang 11 of the 14 hired were not members of the Local . It will be recommended that the complaint be dismissed as to Mosley. 15. Summary as to actual discrimination in hiring I conclude and find that the preponderance of credible evidence supports the allega- tion of actual discrimination in hiring of the above -named individuals only in the case of Arthur Perkins, discussed in 7 above . It is concluded and found that he was unlawfully denied employment on June 25 and August 7 , 1962, and that all Respond- ents are jointly responsible for such discrimination. In my opinion, however, this single instance of discrimination fails to support the allegation of an unlawful "practice." C. Alleged discriminatory classifications As briefly noted in section "A" above, in January 1961, the Respondent Union set up its classification system. Since the first charge in these consolidated cases was not filed until May 1962, it is obvious that, whatever may have been motivating factors, errors made in the assignment of such classifications in early 1961 are barred by the Act from serving as the basis for a finding of unlawful discrimination. Indeed, despite the many months of investigation and preparation of his case, it was not until late in the hearing that General Counsel got around finally to raise the specific issue of alleged discrimination in classification assignments. On the fifth day of the hearing, November 21, 1963, after counsel for the Respond- ent Union objected to General Counsel's attempt to show such discrimination, the following colloquy occurred: TRIAL EXAMINER : I will sustain the objection . The offer, of course, may remain in the record. Let me ask, Mr. Olson , I have gotten lost perhaps in the forest of your allegations here; do you have any specific allegation that there was any unlawful discrimination in classification of longshoremen? Mr. OLSON: I don't have a specific allegation, no. TRIAL EXAMINER : All right. Well , then, please withhold any further evi- dence on that . If you are going to make that allegation, I want to know it. Mr. Mandell should know it. Amend your complaint and we will adjourn this hearing indefinitely until you can make specific allegations . . . . Whether you want to amend your complaint or not, of course , is up to you. 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After some discussion and General Counsel's indication that he would consider the matter of amendment, the latter argued that he already had in evidence the fact that when the original assignments were made all union members were given "A" assign- ments and "at least a few of them" did not meet the "sixteen year" requirement. I commented: Well, if you are claiming that that in effect was an unfair labor practice, it seems to me it goes well beyond the six months' period because this was done, as I understand it, back in 1961. General Counsel replied: Well, Mr. Examiner, they still have these classifications, and if they are not entitled to them- I then said: All right. Then if they are not entitled to them, again I suggest you amend the complaint, make it specific, and we will adjourn the hearing again. Later the same day General Counsel amended his complaint by adding the follow- ing allegations: Paragriaph 12(b). Since January 1961 and continuing to date Respondent Union in the practices it has followed in the operation of the hiring hall described above in Paragraph 10, by virtue of the delegation to Respondent Union of the exclusive control over the seniority status of the employees of Respondent Employer-members listed in Appendix A, Respondent caused and attempted to cause Respondent Stevedores and Respondent Association and their Respondent Employer-members listed in Appendix A to increase or decrease the seniority status of employees in disregard of actual tenure of employment, and based upon considerations or classifications which are arbitrary, invidious or unfair, thereby derogating the employment status of employees represented by Respondent Union. Paragraph 12(c). Since January 1961, and continuing to date, Respondent Union in the practices it has followed in the operation of the hiring hall described above in Paragraph 10, by virtue of the delegation to Respondent Union of the exclusive control over the seniority status of the employees of Respondent Employer-members listed in Appendix A, Respondent Union caused and attempted to cause Respondent Stevedores and Respondent Association and their Respondent Employer-members listed in Appendix A to grant increased seniority status to employees in disregard of actual tenure of employment by reason of membership of said employees in Respondent Union, thereby derogat- ing the employment status of non-member employees represented by Respond- ent Union. The next day, November 22, 1963, the hearing was adjourned until February 4, 1964. It is noted that despite my caveat at the hearing, the above amendments specifically allege unlawful assignments as far back as January 1961. In his well-argued brief General Counsel sets out in columnar fashion, data compiled from records relating to classifications given to some 70 out of many hundreds of longshoremen.3 A sub- stantial number of such classifications, such data indicates, were given sometime in 1961. I cannot assume that they were given after November of that year. Careful scrutiny of the record fails to reveal, to my examination, any substantial grounds for finding that such errors as may have made were for an unlawful pur- pose. Time may well have taken care of such errors. For example, in his brief General Counsel notes that one Pipkin was given an "A" classification in January 1961, although at the time he had but 14 years waterfront experience, instead of the 16 years required by the pule. Assuming that Pipkin is now still employed, it is clear that at this point in 1965 he rates the A classification. It is difficult to order water already over the dam to return to its source. General Counsel cites others who likewise lacked a year or less than a year of deserving the A classifications received in January 1961. It may well be that for varying periods after November 1962, some few may have continued in a classification undeserved. There is some evidence in the record, also, showing that a few nonmembers were not given classifications in January 1961, which their claimed service on the water- front warranted. Some of those errors, however, were rectified before the hearing, and I have no reason to doubt the testimony of union officials to the effect that since 31 have spot checked such data, and for the purpose of this Decision assume the accuracy. MASTER STEVEDORES ASSOCIATION OF TEXAS 1053 1963 this organization has spent thousands of dollars trying to obtain, through Gov- ernment records, accurate information upon which to determine proper classification of all who work through this Local. Local officials readily admit that mistakes were made in the past. Being human they are likely to make them in the future. Having observed these Local officials and their counsel over a period of many hearing sessions, I am disinclined to attribute bad faith to their protestations of genuine efforts to make their seniority classifications as accurate as humanly possible. Whether the ultimate solution to a continuing problem is to be found, as on the west coast, by the setting up of a joint committee of Union and Employer personnel to determine classification placements is a matter of speculation. It may be that this Local may wish to volunteer to submit to the Regional Director, say once every 6 months, records relevant to this seniority issue. Advice from an agency official in advance may well save all parties, including the Government, litigation costs. In any event, I am not convinced that the preponderance of credible evidence sustains the allegations quoted above as amendments to the complaints. It will be recommended that they be dismissed. D. Alleged unlawful assistance In substance the complaint alleges and the answers deny that the Respondent Employers have violated Section 8(a) (2) of the Act, by permitting some 14 foremen and assistant foremen to serve as officers and directors of the Local, and at least 7 of them to serve "as elected officers and members of the negotiating committee in negotiating sessions from July 1962 to January 1963 with" the Respondent Employers. The answer of the Respondent Employers contains merely a general denial of the commission of any alleged unfair labor practice, but does not deny the facts as alleged. The answer of the Respondent Union admits the factual allegations as to the identity of the several individuals, their status as foremen and assistant foremen, their official capacity as union officers, and their participation as elected officers and members of the negotiating committee. The same answer merely denies that these individuals are "agents of Respondent Employer-Members," as alleged in the complaint. No evidence, so far as I have been able to discover, was offered at the hearing by either the Respondent Union or the Respondent Employers to show that these fore- men and assistant foremen were not supervisors within the meaning of the Act and to this extent agents of the Employers. Indeed, testimony of many such foremen and assistant foremen, called by the Respondent Union, establishes clearly that these individuals have full power to select and hire longshoremen. Even in the event that for some reason a "walking foreman," aboard a ship, rejected a longshore- man sent there by a hiring foreman, it is readily apparent that by contract some other longshoremen would have to be hired through the same hall and by the same hiring foremen. The question of agency seems well determined by the court in N.L R.B v. Houston Maritime Association, Inc., et al., 337 F. 2d 333 (C.A. 5). In that case, heard by me, the court said. . union was employers' hiring agent to such extent that employers are respon- sible for the hiring practices of union of which employers either knew, or by reasonable diligence should have known.... The same determination was made by the same court iii another case heard by me: N.L R B. v. Southern Stevedoring & Conti acting Co., 332 F. 2d 1017 (C.A. 5). Since the foremen and assistant foremen are the individuals carrying out the agency functions, it is clear that they are in fact the actual agents. So far as I am aware, the Board still holds to its policy of attributing unlawful interference to the employer if supervisors are permitted to participate as union representatives in the bargaining negotiations with the employers, as set out in Nassau and Suffolk Contractors' Association, Inc., and its members, 118 NLRB 174, and as later discussed by Trial Examiner Vose in National Gypsum Company, adopted by the Board in 139 NLRB 916. With Nassau, then, as authority, and the actual facts not being in dispute, I con- clude and find that by permitting its foremen and assistant foremen to participate as union representatives at negotiating meetings, the Respondent Employers have inter- fered with the administration of the Union, within the meaning of Section 8(a) (2) of the Act. Since such interference and support also interferes with rights guaranteed by Section 7 of the Act, it also is in violation of Section 8(a)(1) of the Act. The complaint also alleges and in his brief General Counsel urges that unlawful assistance has also been rendered by the Respondent Employers by virtue of discrim- ination in employment, attributable to foremen and assistant foremen, against non- 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members which in turn has caused such nonmembers to be deprived of the number of hours worked required to make them eligible for benefits under a welfare fund which is the "fiduciary agent of" all Respondents. Since I have found no general practice of discrimination in hiring, there is no substantial basis for assuming any general loss by employees of eligibility for such funds. It will be recommended that this allegation of the complaint be dismissed. E. The referral fees As noted in section A, above, in the cited recent Decision, issued in March 1965, the Board has now acquiesced in the Houston Maritime decree heretofore referred to, wherein the Court of Appeals for the Fifth Circuit declined to enforce a reim- bursement order of referral fees Since no remedy would be applicable, it would appear pointless to find a violation. It will therefore be recommended that the allegations concerning this issue be dismissed. F. Conclusions in summary In section B, 7 and 15 above it was concluded and found that one Arthur Perkins was unlawfully refused employment on two occasions, June 25 and August 7, 1962. It was further concluded that both the Respondent Union and the Respondent Employers were accountable for the discrimination. Since the clear purpose was to encourage membership in the Respondent Union, it is concluded and found that by such discrimination the Respondent Union caused the Respondent Stevedores and Respondent Association to violate Section 8(a)(3) and (1) of the Act, and that thereby the Respondent Union itself violated Section 8 (b) (1) (A) and (2) of the Act. In section D above it was concluded and found that by permitting its foremen and assistant foremen to participate as union representatives at negotiating sessions the Respondent Employers unlawfully interfered with the administration of the Respond- ent Union. It is further concluded and found that by such interference the Respond- ent Stevedores and Respondent Association violated Section 8(a)(2) and (1) of the Act. Having found that the preponderance of credible evidence fails to support all other allegations of unfair labor practices, it will be recommended that all allegations of, the consolidated complaint, as variously amended, with the exceptions noted imme- diately above, be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Certain of the activities of the Respondents set forth in section III, above , occur- ring in connection with the operations of the Respondent Employers described in section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices I will recommend that they cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondents Union, Stevedores, and Association notify Arthur Perkins, in writing, that in selecting him for hire he will not be dis- criminated against because of his non-membership in the Respondent Union. It will also be recommended that the Respondents jointly make Perkins whole for loss of pay suffered by him on the 2 days found herein. Backpay shall be computed in accordance with Board policy set out in F. W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. It will further be recommended that the Respondent Employers cease and desist from permitting its foremen and assistant foremen from participating, as repre- sentatives of the Respondent Union, in collective-bargaining negotiations with the Respondent Employers. It will also be recommended that the Respondents cease and desist from infringing in any manner upon rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 872, International Longshoremen 's Association , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. MASTER STEVEDORES ASSOCIATION OF TEXAS 1055 2. By discriminating in regard to the hire of Arthur Perkins, as found herein, to encourage membership in the above-named labor organization, the Respondent Ste- vedores and the Respondent Association have engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 3 By causing the aforesaid Respondent Employers to violate Section 8(a)(3) of the Act, the Respondent Union has violated Section 8(b) (1) (A) and (2) of the Act. 4. By interfering with the administration of the Respondent Union, as described herein, the Respondent Employers have engaged in unfair labor practices within the meaning of Section 8 (a) (2) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. 6. The preponderance of credible evidence fails to sustain the complaint's other allegations of unfair labor practices. [Recommended Order omitted from publication.] APPENDIX Abaunza S/S Agency Corp. 203 Marine Building Houston, Texas Atlantic & Gulf Grain Steve. Assoc. 5513 Clinton Drive Houston 20, Texas Atlantic & Gulf Stevedores, Inc. 5513 Clinton Drive Houston 20, Texas Biehl & Company Cotton Exchange Building Houston, Texas E. S. Binnings, Inc. 1114 Texas Avenue Bldg. Suite 1621 Houston 2, Texas Bletsch S/S Corp. 301 Cotton Building Houston, Texas Canadian Gulf Lines, Ltd. P. O. Box 5355 Houston 12, Texas Crown Stevedoring Co. 324 Shell Bldg. Houston 2, Texas Dalton S/S Corp. 205 Fidelity Bank Bldg. Houston, Texas Dixie Stevedores 203 Marine Bldg. Houston, Texas Fowler & McVitie, Inc. Cotton Exchange Bldg. Houston, Texas Funch, Edye & Co. 814 World Trade Bldg. Houston, Texas Gulf Stevedore Corp. P. O. Box 1443 Houston 1, Texas Hansen & Tidemann & Dalton S/S Co. P. O. Box 1443 Houston 1, Texas LeBlanc-Parr & Co. 413 Cotton Exchange Bldg. Houston 2, Texas Liberty Stevedore Co., Inc. Cotton Exchange Bldg. Houston, Texas Lykes Bros , S/S., Inc. 6821 Ave. V., P. O. Box 1243 Houston, Texas Mid-Gulf Stevedores, Inc. 321 Shell Bldg. Houston, Texas Rice, Kerr & Co., Inc. 506 Caroline Street Houston, Texas States Marine-Isthmian Agency, Inc. 401 Cotton Exchange Bldg. Houston, Texas Strachan Shipping Co. P. O. Box 1704 Houston, Texas Texas Stevedores, Inc. 205 Fidelity Bank Bldg. Houston, Texas Texas Star Stevedoring Co., Inc. 303 Cotton Bldg. Houston, Texas Southern Steve. & Contr. Co. 526 Cotton Exchange Bldg. Houston, Texas Suderman Stevedores, Inc. U.S. National Bank Bldg. Galveston, Texas Texas Contracting Co. Cotton Exchange Bldg. Houston, Texas Texas Transport & Terminal Cotton Exchange Bldg. Houston, Texas Texports Stevedoring Co., Inc. Cotton Exchange Bldg. Houston, Texas United Steve. Div. States Marine Cotton Exchange Bldg. Houston, Texas Waterman S/S Corp. 704 Cotton Exchange Bldg. Houston 2, Texas Young & Co. of Houston 600 World Trade Bldg. Houston, Texas