Cargo Handlers, Inc.

CARGO HANDLERS, INC. 321 Respondent unlawfully refused to refer Jesse Bulle to employment upon request.14 I accordingly shall recommend that the complaint in this matter be dismissed in its entirety. RECOMMENDED ORDER It is recommended that the complaint in this matter be dismissed in its entirety. 14 Cf. Southurire Company, 152 NLRB 1594 , footnote l A welfare investigator called by Charging Party testified to conversations had with Belle and also with Migliore Bulle's account of his efforts to get work at uncertain dates, cannot be accepted in such form as a substitute for Bulle 's own testimony and I accordingly reject it. The investigator also reported conversations with Migliore wherein she quotes him as saying , in February or March 1965 (after the first hearing in this matter ), that he would not let Bulle work without a card. I cannot accept such state- ments as evidence that Migliore refused 6 months earlier to refer Bulle, upon his request, to. an available job. This matter is clearly outside the scope of the pleadings. Cargo Handlers, Inc. and Ronald Sampson International Longshoremen's Association, AFL-CIO, and its Local 1911 and Ronald Sampson. Cases 5-CA-3134 and 5-CB- 633. June 14, 1966 DECISION AND ORDER On December 21, 1965, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled proceeding, finding that the above- named Respondents engaged in and were engaging 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. Thereafter, the Respondent Unions, Inter- national Longshoremen's Association, AFL-CIO, hereinafter some- times referred to as the International, and its Local 1911, hereinafter sometimes referred to as Local 1911, filed joint exceptions and sepa- rate supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Jenkins]. The Board has reviewed the rulings made, by the Trial Examiner 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 in this case and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations, except as modified herein. - The, Trial Examiner found that both the International and Local 1911 violated Section 8(b) (1) (A) and (2) of the Act by maintaining an employment referral arrangement with the Respondent Employer which discriminated against nonunion applicants and Negroes. Both 159 NLRB No. 17. 243-084-67-vol. 159-22 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unions excepted to these findings. In its separate brief, the Interna- tional argues that, even if the Board should adopt the Trial Exam- iner's findings and ultimate conclusion that Local 1911 has committed these unfair labor practices, there is no basis upon which to adopt his further conclusion that the International is likewise responsible for such violations. Thus, the International asserts that the Trial Exam- iner has made no subsidiary factual finding and that there are no facts in the record to support his conclusion that a responsible official of the International has engaged in any conduct involving discrimination on the basis of race or the lack of union membership. Insofar as racial discrimination is concerned, we find merit in the contentions of the International. We affirm, however, the Trial Exam- iner's determination that the International and Local 1911 each vio- lated Section 8 (b) (1) (A) and (2) by maintaining with the Employer a hiring and referral system which discriminated against applicants for employment on the basis of nonmembership in Local 1911. In reaching the latter determination in respect to the International, we rely not only on the factual findings of the Trial Examiner, which we have adopted, but also on certain additional facts which are supported by uncontroverted testimony in the record. Sometime in August 1964, Haile, a vice president of the Interna- tional, and Kopp, the vice president for the Atlantic Coast District of the International, visited the harbor at Cambridge, Maryland. There they secured signed authorization cards from 27 white men, who were engaged in unloading a ship.,' These men were employees of the Respondent Employer, Cargo Handlers, Inc., hereinafter sometimes 'referred to as the Employer. They appear to have been the only employees engaged in unit work at the time authorization cards were signed.2 ° After obtaining the signatures of these employees, Haile assisted in the formation of Local 1911 to represent them and obtained a charter for it from the International on 'September 18, 1964. Local 1911 promptly held an election of officers and selected Omro Morris as its president. Also sometime in September 1964-the record does not show the precise date=Haile obtained recognition from the Employer for Local 'These executed authorization cards were not placed in evidence . The attorney for the Respondent Unions did , however, place in evidence a blank "Application for Mem- bership in the Longshoremen's Association." This card specifies that the signer desig- nates ". . . the International Longshoremen's Association , Ind. and its subordinate Local Union No. -, their agents and representatives to represent . . . (him) for the purpose of collective bargaining... . a While there is some testimony that at least one Negro was working on the docks at 'about the time the International vice presidents visited Cambridge in the late summer of 1964, the evidence is in conflict whether this individual was actually employed on the day the 27 white employees were signed up. The Trial Examiner did not resolve this conflict. Even if we were to assume , however, on the basis of the testimony that this individual was at the docks on the day in question , we are not persuaded that the General Counsel has established by a preponderance of the evidence that the International vice presidents refused him union membership or intentionally avoided him. CARGO HANDLERS, INC. 323 1911 as the collective-bargaining representative for stevedores at the port, and negotiated an oral agreement with the Employer for the continuance of its existing wage rates for the time being. Haile told the Employer during this September discussion that union members were to be hired first 3 whenever the Employer required the services of a stevedore crew:' There is no evidence that Haile made any request that preference be shown to white longshoremen. Thereafter, from about September 1964 until the early spring of 1965, stevedores were hired by the Employer in the following manner. Whenever the Employer learned that a ship was due to be unloaded at Cambridge, its hiring boss, Omar Mills, notified Local 1911's presi- dent, Morris, or local union officers, John Buchanan, Sr., and John Buchanan, Jr., to round up a sufficient crew. Morris and the Buchan- ans then proceeded to call those individuals who were members of Local 1911. Nonunion men would be hired only in those instances where there were not enough union'members to fill all the jobs in the stevedore unit. As a result of this arrangement, union members, all of whom were white, were the only stevedores regularly employed in the crews which unloaded vessels docking at the port during the afore- mentioned period.5 During this same period, as more fully set forth in the Trial Exam- iner's Decision, two Negro stevedores, Christon and Sampson, made unsuccessful efforts to obtain employment from the Employer's hiring boss, Mills. They were turned down after being told that union mem- bers had to be hired first. Sampson and Christon also contacted Local 1911's president, Morris, to inquire about that Union and where its meetings were held, but were unable even to obtain information about Local 1911, much less membership in it .6 Finally, on March 4, 1965, the Employer and Local 19117 held a meeting to which a number of Negro longshoremen were invited. The meeting was occasioned by the dual circumstances of the impending arrival of a large ship for which an extra stevedoring crew would be required and growing protests by Negroes about port hiring practices at that time. The Employer's operations manager, Holdt, informed 8 Holdt, the Employee's manager of operations so testified , and his testimony was not contradicted by Haile. A We make no unfair labor practice findings with respect to these events in Septem- ber 1964 ( since they occurred prior to the Section 10( b) limitations period ), but consider this evidence only for background. Local Lodge No. 1424, International Association of Machinists (Bryan Manufacturing Oo.) v. N.L.R.B., 362 U.S. 411, 424. c Occasionally , an extra stevedore crew would be required for larger boats with three or more hatches . In those instances, nonunion employees , mostly Negroes , would be hired by the Employer for the extra crew . Negroes and other nonunion employees have likewise been hired for lower paying dockside jobs. But the latter positions are outside the unit represented by Local 1911. 9 Christon so testified. Although Morris testified that he could not recall that any Negro actually asked to join the Union during this period , he did not deny that he engaged in the foregoing conversation with Christon and Sampson. 7 No representative of the International was present at this meeting. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those present at this meeting that a large vessel was expected shortly and that the Employer proposed to hire an additional crew, to be com- posed of Negro longshoremen, to help unload it. Holdt further stated that the Employer's usual procedure was to hire its stevedores through Local 1911, that if job applicants were union members there was no problem, but that if they were not, they would have to contact Local 1911's president, Morris. Morris then informed the group that Local 1911 would take 5 cents out of every dollar earned by nonmembers who worked on any stevedoring gangs. Morris added that payment of this amount did not make the nonmember a member of Local 1911. When asked what Local 1911's initiation fee was, Morris replied this fee was a variable one and that it ranged from $300 to $800. The white members who had been signed up by the International's Vice Presidents Haile and Kopp, during August 1964, had each paid only a $10 initiation fee. From the foregoing, it is clear that Local 1911 did not desire to accept, and in fact did not accept, Negroes into its membership during the period from September 1964 until the early spring of 1965. It is likewise clear that, since the Employer hired union members referred by Local 1911 before hiring any other stevedores, this preferential hiring arrangement coupled with Local 1911's discriminatory mem- bership policy effectively barred Negroes from obtaining the same regular work opportunities in the unit as those enjoyed during the same period by the unionized white stevedores." Also in March 1965, International Vice President Haile again con- tacted the Employer and obtained an agreement from it on a new wage scale. Although it does not appear that the parties signed an actual contract, they reached an oral understanding, a memorandum of which was placed in evidence at the hearing. The memorandum reflects such matters as wage rates, bonuses, crew sizes, and the period of the agreement (March 1965-October 1, 1966). When asked at the hearing what hiring arrangement was negotiated between the parties when they set these new wage rates, Haile stated that it was agreed that the existing hiring arrangement-whereby members of Local 1911 were given preference-would be continued.' We think it manifest from the foregoing that the International is equally responsible with Local 1911 for the inauguration and for the continuation of this hiring and referral system insofar as it caused 8 Although Negroes were hired during this period to work in the extra crew required for larger vessels , no Negro was actually referred by Local 1911 until after June .1, 1965, when ,the first Negroes obtained membership in Local 1911. The Employer's hiring boss , Mills, testified at the hearing that he could not really recall any instance where a nonmember- white or Negro-was ever referred by Local 1911, except for one instance which occurred just prior to the hearing ,in August 1965. e Again, however, it did not appear that Haile laid down any racial requirements in respect to this arrangement. CARGO HANDLERS, INC. 325 preference to be shown union members. The International's vice president, Haile, was one of the two representatives who originally secured the union memberships of the Employer's stevedores and established Local 1911 at Cambridge. Haile, in September 1964, obtained recognition from the Employer for union representation of these employees, negotiated an oral collective-bargaining agreement for them, and authored the arrangement by which they were to be hired. And thereafter, in March 1965, he renegotiated their wage rates and reaffirmed that very hiring agreement 10 Other evidence also indicates that the International shared with its Local 1911 the function of representing the employees of the Employer, and hence bore equal responsibility with the Employer and Local 1911 for the unlawful preferential hiring of union members. The blank authorization card submitted by the Respondent Union at the hearing specified that by his signature the signer designated both the International and the appropriate subordinate local as his collective-bargaining representative. Haile, after acknowledging his signature on a copy of the March 1965 wage agreement memorandum, testified that it was customary for him, as International vice presi- dent, to. sign any agreement he worked out with an employer although had a formal agreement here been executed, this would have also included the signatures of Vice President Kopp and local officials. In an affidavit given by Haile to a Board investigator on May 6, 1965, received in evidence and affirmed in substance at the hearing, the fol- lowing is appended : "I, William Haile, wish to add the following to my previous statement: Under the agreement we have with Cargo Handlers all union men there are to be hired and if the Company needs more they can hire anybody else that comes." [Emphasis sup- plied.] Local 1911's unwillingness to take Negroes into its membership, coupled with its policy of referring only union members for jobs, supports the Trial Examiner's finding that Local 1911 and the Em- ployer operated the employment referral system in a manner whereby Negroes were discriminated against, not only because of their non- membership in the Union, but also because of their race. We disagree, however, with the Trial Examiner's further finding that the Inter- national as well as the Local was responsible for discrimination to the extent it was based on considerations of race. The record does not support that conclusion. As noted previously, it was not shown that the International's vice presidents refused to take Negroes into membership when they orga- nized the port of Cambridge in August 1964. They simply signed up t0The date March 1965 occurs well within the 10(b) period involved in this proceeding. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD individuals who were already working as stevedores and, insofar as this record establishes, none were Negroes. Further, there is no evi- dence that the International chartered Local 1911 as a "white" local. Nor does it appear that the matter of race was injected into the discus- sion between the Employer and International Vice President Haile in September 1964, when the referral system was inaugurated. Local 1911 alone was responsible for the discouragement of Negroes from joining its membership and for the referral of white union members only for job opportunities. The International did not engage in such activities, and, so far as the record shows, the International was una- ware of Local 1911's racial discrimination until after the International negotiated a new wage agreement with the Employer in March 1965 11 This picture changed in late March, however. On or about March 26, 1965, a Negro protest group from Cambridge visited the Interna- tional's officers, including Haile and Kopp, at Baltimore and com- plained to them that Local 1911 had no Negro members. Thereupon, the International took prompt and effective steps to correct the situa- tion. After hearing the grievance, Haile and Kopp stated that they would consult with Local 1911 within a few days and straighten out the matter. On about April 1, 1965, these two officers met, as they had promised, with the officials of Local 1911. Following that meet- ing, Local 1911 decided to take Negroes into its ranks. Subsequently, other meetings were held at Cambridge in the spring of 1965, which were attended by Haile and Kopp and local citizens. As more fully detailed in the Trial Examiner's Decision, Local 1911's change in membership policy was announced at these meetings, Negroes were invited to join Local 1911, and membership blanks were passed out to them. A number of Negroes accepted this invitation and were admit- ted to Local 1911 on June 23, 1965. Eventually, by the end of the summer, Local 1911 included 14 Negroes in its membership, and Negroes were being referred with frequency for employment by the Employer. In the light of the foregoing facts we, contrary to the Trial Examiner, do not conclude that the International approved, condoned, or ratified the racial policy of Local 1911 as that policy existed prior to the end of March 1965. In sum, therefore, we hold, as did the Trial Examiner, that both the International and Local 1911 have'violated Section 8(b) (1) (A) and (2) of the Act by the operation and continuation of a referral and hiring-system with the Employer whereby members of Local 1911 were given preference in employment because of their union member- n No representative of the International was present at the meeting in Cambridge on March 4, previously discussed , at which officials of the Employer and of Local 1911 met with Negro longshoremen. CARGO HANDLERS, INC. 327 ship 12 We also find that Local 1911, but not the International, has further violated these same sections of the Act by operating this hir- ing system with the Employer in a manner whereby Negroes were discriminated against in job opportunities because of their race.13 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. The Respondent Employer, Cargo Handlers, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Maintaining, performing, or enforcing its collective-bargaining agreement with International Longshoremen's Association, AFL-CIO, and its Local 1911, in a manner whereby job referrals are conditioned on the unlawful basis of race or union membership; or maintain- ing, performing, or enforcing, by contract or otherwise, any like or related arrangement in a manner whereby referrals to available jobs are based or allocated on the unlawful basis of race or union membership. (b) In any like or related manner restraining or coercing employ- ees in the exercise of their rights guaranteed by the National Labor Relations Act, as amended. 2. Take the following affirmative action which is necessary to effec- tuate the policies of the Act : (a) Post at its headquarters in Cambridge, Maryland, copies of the attached notice marked "Appendix A," as well as copies of the notices marked "Appendix B" and "Appendix C." 14 Copies of '- See International Typographical Union, AFL-CIO ( Haverhill Gazette Company), 123 NLRB 806, 827, enfd. as modified 278 F.2d 6 (C.A. 1), 365 U.S. 705; Galveston Maritime Association, Inc., 139 NLRB 352, enfd. as modified 329 F.2d 259 (C.A.D C.) ; International Association of Heat and Frost Insulators and Asbestos Workers, AFL-CIO, Local 31, 114 NLRB 1526, 1537, enfd. 261 F.2d 347 (C.A. 1). We also adopt the Trial Examiner's Conclusion of Law 4, to which no exceptions were taken, that: "By entering into, and maintaining, an illegal hiring arrangement , Cargo Handlers has engaged in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act." However, inas- much as the illegal hiring arrangement was originally made in September 1964-which is prior to the Section 10 (b) period-we interpret the Trial Examiner's "entering into" finding to refer only to those occasions within the 10(b) period when the arrangement was followed and to the reaffirmation of the arrangement in March 1965. Cf. Skouras Theatres Corporation, 155 NLRB 157. Is See Hughes Tool Company (Independent Metal Workers-Union, Local No. 1), 147 NLRB 1573, 1574 ; Local 1367, International Longshoremen's Association (Galveston Maritime Association ), 148 NLRB 897, 898, 900 ; Maremont Corporation (International Union UAW), 149 NLRB 482; Local Union No. 12, Rubber Workers ( The Business League of Gadsden), 150 NLRB 312. Chairman McCulloch joins in the finding of violations herein, solely on -the *ground that the discrimination and other unlawful conduct were related to union considerations , more specifically , membership or nonmembership in Local 1911. See his'and Member Fanning's dissenting opinion in Hughes Tool Co, supra, and Maremont Corporation,' supra. He would limit the remedial order accordingly. 14 In the event that this Order is enforced by a decree of a United States Court of Appeals, in each notice marked "Appendix A," "B," or "C," there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order." 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notices marked "Appendix A," to be furnished by the Regional Direc- tor for Region 5, shall, after being duly signed by a representative of the Respondent, Cargo Handlers, Inc., be posted by the aforesaid Respondent immediately upon receipt thereof, and be maintained by Cargo Handlers, Inc., for 60 consecutive days thereafter, in conspic- uous places, including all places where notices to employees are customarily posted. Copies of notices marked "Appendix B" and "Appendix C," which will also be furnished by the Regional Director for Region 5, after being signed by representatives of the other Respondents, as appropriate, shall also be posted by the Respondent, Cargo Handlers, Inc., immediately upon receipt thereof, and be main- tained by Cargo Handlers, Inc., for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Cargo Han- dlers, Inc., to insure that all said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 5, in writing, within 10 days from the date of this Order, what steps the Respondent, Cargo Handlers, Inc., has taken to comply herewith. B. International Longshoremen's Association, AFL-CIO, its offi- cers, agents, and representatives, shall: 1. Cease and desist from : (a) Maintaining, performing, or enforcing any provisions of its and its Local 1911's collective-bargaining agreement with Cargo Handlers, Inc., which condition job referrals on the unlawful basis of union membership; or maintaining, performing, or enforcing, by contract or otherwise, any like or related arrangement which bases or allocates referrals to available jobs on the unlawful basis of union membership. (b) Causing or attempting to cause the aforesaid Employer, or any other employer in the port of Cambridge, to discriminate against any employee by making or enforcing any agreement or arrangement which conditions job referrals on an employee's union membership. (c) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by the National Labor Rela- tions Act, as amended. 2. Take the following affirmative action which is necessary to effec- tuate the policies of the Act : (a) Notify the Employer, Cargo Handlers, Inc., that it will cease performing or giving effect to any provisions of its and its Local 1911's collective-bargaining agreement with Cargo Handlers, Inc., which condition job referrals on the unlawful basis of union membership. CARGO HANDLERS, INC. 329 (b) Post at its business offices and meeting halls at Baltimore and Cambridge, Maryland, copies of the attached notice marked "Appen- dix B." Copies of said notice, to be furnished by the Regional Direc- tor for Region 5, shall, after being duly signed by a representative of the Respondent, International Longshoremen's Association, AFL- CIO, be posted immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the International to insure that all said notices are not altered, defaced, or covered by any other material. Additional copies of Appendix B, after being duly signed by the International's representative, shall be forwarded to the Respondent, Cargo Handlers, Inc., for posting at its place of business, including all places where notices or communications to its employees are customarily posted. (c) Notify the Regional Director for Region 5, in writing, within 10 days from the date of this Order, what steps the Respondent, Inter- national, has taken to comply herewith. C. Locals 1911, International Longshoremen's Association, AFL- CIO, its officers, agents, and representatives, shall: 1. Cease and desist from : (a) Maintaining, performing, or enforcing any provisions of its and its International Union's collective-bargaining agreement with Cargo Handlers, Inc., in a manner whereby job referrals are condi- tioned on the unlawful basis of race or union membership ; or main- taining, performing,. or enforcing, by contract or otherwise, any like or related arrangement which bases. or allocates referrals to available jobs on the unlawful considerations of race or union membership. (b) Causing or attempting to cause the aforesaid Employer, or any other employer in the port of Cambridge, Maryland, to discriminate against any employee by making any agreement whereby,, or enforc- ing any agreement in a manner whereby, job referrals are conditioned on an employee's race,or union, membership or any like or similar consideration. (c) In any like or related manner restraining or coercing employ- ees in the exercise of their rights guaranteed by the National Labor Relations Act, as amended. 2. Take the following affirmative action which is necessary to effec- tuate the policies of the Act: (a) Notify the Respondent, Cargo Handlers, Inc., that Local 1911 will cease performing, or giving effect to, any job referral provisions of its and its International Union's_ collective-bargaining agreement with Cargo Handlers Inc., in a manner whereby job referrals are 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditioned on the basis of race or union membership and that Local 1911 will not maintain, perform, or enforce any like or related arrangement, by contract or otherwise, which bases or conditions job referrals on the unlawful consideration of race or union membership. (b) Post at its business office and meeting halls, copies' of the attached notice marked "Appendix C." Copies of said notice, to be furnished by the Regional Director for Region 5, shall, after being duly signed by a representative of Local 1911, be posted immediately upon receipt thereof, and be maintained by it for at least 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to its members 'are customarily posted. Reasonable steps shall be taken by Local 1911 to insure that said notices are not altered, defaced, or covered by any other material. Additional copies of Appendix C shall, after being duly signed by a representative of Local 1911, be furnished to Cargo Handlers Inc., for posting at its place of business where notices or communications to its employees are cus- tomarily posted. (c) Notify the Regional Director for Region 5, in writing, within 10 days from the date of this Order, what steps the Respondent, Local 1911, has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and-Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended; we hereby notify you that : WE WILL NOT maintain, perform, or enforce any provisions of our collective-bargaining agreement with International Long- shoremen's Association, AFL-CIO, and its Local 1911, in a man- ner whereby job referrals are conditioned on the unlawful basis of race or union membership; or maintain, perform, or enforce, by contract or otherwise, any like or related arrangement which bases or allocates referrals to available jobs on the unlawful basis of race or union membership. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed by the National Labor Relations Act, as amended. CARGO HANDLERS, INC., Employer. Dated-------------=-- By------------------------------------- (Representative) (Title) CARGO HANDLERS, INC. 331 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 compli- ance with its provisions, they may communicate directly with the Board's Regional Office, Sixth Floor, 707 Calvert Street, Baltimore, Maryland 21202, Telephone 752-8460, Extension 2159. APPENDIX B NOTICE TO ALL MEMBERS OF INTERNATIONAL LONG- SHOREMEN'S ASSOCIATION, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT maintain, perform, or enforce any provisions of of the collective-bargaining agreement with Cargo Handlers, Inc., which condition job referrals on the unlawful basis of union membership; or maintain, perform, or enforce, by contract or otherwise, any like or related arrangement which bases or allo- cates referrals to available jobs on the unlawful basis of union membership. WE WILL NOT cause, or attempt to cause, the aforesaid Employer, or any other employer in the port of Cambridge, Maryland, to discriminate against any employee by making or enforcing any agreement or arrangement which conditions job referrals on an employee's union membership. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed by the National Labor Relations Act,l as amended. WE WILL notify the above-named Cargo Handlers, Inc., that WE wiLL cease performing or giving effect to any provisions of this collective-bargaining contract which condition job referrals on the basis of union membership; and that WE WILL NOT maintain, perform, or enforce any like or related arrangement, by contract or otherwise, which bases or conditions job referrals on the unlawful' consideration of union membership. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 compli- ance with its provisions, they may communicate directly with the Board's Regional Office, Sixth Floor, 707 Calvert Street, Baltimore, Maryland 21202, Telephone 752-8460, Extension 2159. APPENDIX C NOTICE TO ALL MEMBERS OF LOCAL 1911, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations 'Board, and in order to effectuate the, policies of the National Labor Relations Act, as amended,,we hereby notify you that: WE WILL NOT maintain, perform, or enforce any provisions of the collective-bargaining agreement with Cargo Handlers, Inc., in a.manner whereby, job referrals are conditioned on the unlawful basis of race or, union membership, 'or maintain, perform, or enforce, by contract or otherwise, any like or related arrange- ment which bases or allocates referrals to available jobs on the unlawful basis of race or union membership. WE WILL NOT cause, or attempt to cause, the aforesaid Employer, or any other employer in the port of Cambridge, to discriminate against any employee by making any agreement to, or enforcing any agreement in a manner to, condition job referrals on any employee's race, union membership, or any like or similar consideration. WE WILL NOT in, any like or related manner restrain or coerce employees in the exercise of their rights guaranteed by the National Labor Relations Act, as amended. WE WILL notify the above-named Cargo Handlers, Inc., that WE WILL cease performing or giving effect to any provisions of this collective-bargaining contract in a manner whereby job referrals are conditioned on race or union membership, and that WE WILL Nor maintain, perform, or enforce any like or related arrange- ment, 'by contract or otherwise, which bases or conditions job referrals on the unlawful considerations of race or union membership. LOCAL 1911, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, Labor Organization. Dated--------------- By------------------------------------- (Representative ) ( Title) CARGO HANDLERS , INC. 333 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 compli- ance with its provisions, they may communicate directly with the Board's Regional Office, Sixth Floor, 707 North Calvert Street, Balti- more, Maryland 21202, Telephone 752-8460, Extension 2159. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges and amended charges the General Counsel for the National Labor Relations Board, by the Regional Director for Region 5, issued his consolidated com- plaint, dated June 22, 1965 , against the Respondents, International Longshoremen's Association, AFL-CIO, and its Local 1911 (hereinafter referred to collectively as the Union or as ILA and Local 1911, respectively) and Cargo Handlers, Inc. (hereinafter referred to as the Company, or Employer), alleging that the ILA, and its Local 1911 , have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(1) (A) and (2) of the National Labor Relations Act, herein called the Act . The complaint also alleges that the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. Copies of the complaint, the charges,' notice of consolidation of cases and hearing, were duly served upon all the parties . In answers, duly filed by all Respondents, the latter denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held on August 30 and 31, 1965 , at Cam- bridge, Maryland, before Trial Examiner Robert E . Mullin. All parties appeared at the hearing. The Respondent Unions and the General Counsel were repre- sented by attorneys and the Respondent Employer was represented by two of its corporate officers. All parties were given full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant and competent evidence. Subsequent to the close of the hearing , briefs on behalf of all the different parties were received by, me and have been duly considered. Motions to dismiss, upon which ruling was reserved at the conclusion of the hearing, are disposed of in accordance with the findings and conclusions that follow. Upon the entire record in the case , the briefs of the parties, and from my observation of the demeanor of the witnesses as they testified , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT EMPLOYER The Employer, ^a Maryland corporation , is engaged in the business of stevedoring in the port of Cambridge, Maryland. During the calendar year 1964, a representa- tive period, it derived gross income in excess of $50 ,000 for stevedoring services rendered to various enterprises. Among the latter were Maryland Tuna Com- pany and Coldwater Seafood Company, each of which annually receives at its place of business in the State of Maryland goods valued in excess of $50,000 which are received from outside the State of Maryland . In addition, each of the latter annually sells and ships products valued in excess of $50 ,000 to points out- side the State. Upon the foregoing facts the Respondent Employer concedes, and I find, that Cargo Handlers, Inc., is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATIONS INVOLVED The ILA and its Local 1911 are 'both labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction From the close of World , War .3I and until approximately 4 962 the • port of Cambridge was largely inactive . Subsequent to the latter date , • however, with 'The original charges against the ILA and the Employer were filed on April 28, 1965 ; amended charges against both the Unions and the Employer were filed on June 18, 1965. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assistance from the Area Redevelopment Administration the port facilities were improved very substantially so that ocean shipping could once more enter the chan- neh and, harbor. ' The ' first substantial user of the new port was Maryland Tuna Company which, at some point early in 1962 opened a plant' in Cambridge. Since the latter depended for its operations on a continuing supply of tuna fish, oceangoing -vessels, carrying this cargo began to arrive at the Cambridge docks. Initially there was no stevedoring firm in Cambridge from which Maryland Tuna could secure a labor force to unload these ships. As a result, the latter recruited its own stevedore gangs from among the Negroes in the Cambridge area. Even- tually, at the urging of Maryland Tuna, a group of Cambridge' businessmen organized a stevedoring firm so that all ships which called at the port would be assured of a ready supply of longshoremen. This was Cargo Handlers, incorpo- rated in mid-1962 by Robert B. Davis, Donald Holdt, Herman Stevens, and Philip Williamson. Davis, a retail clothier, was elected president and Holdt, president of an electronics firm, was named treasurer and manager of operations. Throughout the period material to the issues herein the principal users of the new port facilities in Cambridge have been two fish processing firms, namely, Maryland Tuna, mentioned earlier, and Coldwater Seafood which ' began opera- tions in 1964 at a plant in Nanticoke, Maryland. Ships carrying cargo for these firms arrived in Cambridge- at irregular intervals, the total number. of vessels per month varying from one to three. At the hearing, Herman Stevens, secretary of the Company, testified that in the preceding year a total of 27 ships had docked in Cambridge. Since its incorporation in mid-1962, Cargo Handlers has been the sole 'stevedoring firm in the port. - When the revival of shipping in Cambridge came to the attention of the ILA, several of its officials-from Baltimore visited the harbor to survey the organiza- tional- prospects.,'-' John Kopp, vice president for the Atlantic -Coats District of the ILA testified that in this connection he went to the Cambridge waterfront on two occasions in August 1964. On the first trip, Kopp was accompanied by, the presi- dent 'of a Baltimore-local of the ILA. On the second trip,'he was accompanied by William Haile, International vice president of the ILA. During the latter visit, the two ILA officials secured authorization cards from 27 white men then engaged in unloading a ship. Of this number, 18 also paid an ILA initiation fee of $10 each. On September 18, 1964, the ILA granted a charter to Local 1911. Shortly thereafter, at an election conducted by Local 1911, Omro Morris was* elected president, Reginald Todd, vice president, John Buchanan, Sr., treasurer, and John Buchanan, Jr., secretary. B. Contentions of the parties; findings of fact and conclusions of law with respect thereto The General Counsel alleges that the Employer and the Union have had an agreement or arrangement whereby the former has hired only those stevedores referred to it by the ILA and, further, that since November 1964 while acting pursuant to such exclusive hiring arrangement the Union has refused to refer for employment, and the Company has refused to hire, Negroes because they were not members of . the Union and because of arbitrary considerations relating to their race. These allegations are denied in their entirety by the Respondents. 1. The collective-bargaining relation's of the parties and hiring practices thereunder At some time-'in September'1964, although the precise date does not'iappear in the record, Cargo Handlers 'recognized Local ' 1911 as the collective-bargaining agent for stevedores in the -port.' A verbal understanding' was reached between the Union and Holdt that, for the time being, the status quo would be maintained on wages and other terms and' conditions of employment: The General Counsel contends that included within this initial understanding between the Employer and the Union was an agreement that all union members would be hired first and before Cargo Handlers sought help elsewhere for any manpower- needs in excess of the ILA's membership rolls. This contention is supported by the record. It was undenied that shortly before the arrival of a ship, Omar V. Mills, hiring boss for Cargo Handlers, would notify Omro Morris, president of the Union, as to the number of gangs that would be needed for offloading the cargo when the ship docked. Morris testified that he, in turn, contacted all the union men, either by, himself or, with the, help 'of John CARGO HANDLERS, INC. 335 Buchanan, Sr., and John Buchanan, Jr., who, in addition to being officers in Local 1911 were. also gang foremen.2 Morris testified that "if we don't have enough union men to,go around, I tell him . . . [Mills]." The hiring boss for Cargo Handlers testified that when Morris was unable to secure enough union members to supply the number of gangs needed the union president would 'tell. him "You pick up. You fill out [the rest of the crew from nonunion sources]." On cross- examination, Mills conceded that he could recall only one instance when Morris had referred a nonunion man to him. Mills identified this occasion as having occurred late in August 1965 and one week before the hearing in the present case. Willie Christon; a Negro stevedore, testified that on several occasions during the early spring of 1965, and at a time when he was not a union member, he sought employment from Hiring Boss `Mills. According to Christon, in each instance, Mills told him "Willie,' you are 'a good worker but . . . I got to put the Union men to work first." Christon's testimony in this respect was credible land'was never denied or contradicted by Mills. 'Ronald 'Sampson, another 'Negro who had experience as a`• longshoreman , testified that during- this same period when he asked Mills for employment as a stevedore, the hiring boss told -him that he would "have to be unionized to work in the hold." Sampson's testimony in this connec- tion was never denied or contradicted by Mills when the latter testified. At the hearing, when Haile, vice president of the ILA, was being cross-examined about the contract negotiations had with the Company, he was asked ". . . did you come to an agreement with Cargo: Handlers that all Union men were to be hired' before' any non-union men would be hired?" After much equivocation,-Haile finally'an- swered this question in'the affirmative. In another instance, during the-interrogation of Union President- Morris, the latter testified that at the time when Local 1911 was' recognized Haile told him that thereafter "All Union men have first prefer- ence." 3 ' Morris also testified that on various occasions he told Holdt, manager of operations foi'the Company,'that Holdt "could hire anybody that he wanted after' the' Union men come first." [Emphasis supplied.] Holdt testified that from the outset of the Company's relations with the ILA, Haile and the Union took the posi- tion "that Union members. were to be hired first." Holdt asserted that he. neither agreed nor disagreed with this claim by the Union, and when, in several instances, it was urged by Haile, he said nothing. On the other hand, on March 4, 1965, at a meeting 'called to discuss the 'hiring practices of the Company,- Holdt made the following statement to a large 'number of Negroes and nonmembers"-of the Union who were present: The stevedores are unionized. If • you fellows are a member of the union, there is no problem. If you are not 'a member of the union, we hire through the union. We have to go to the union and say,,"We need, so many men. We need 45 men." It's up to the Union to come up with, 45 men. This gentleman is President of, Local 1911 [pointing out Morris who was present in the room] ... You will have to make arrangements with him to work on a stevedoring gang, [Emphasis supplied.] 4 ? . From the,- foregoing' it is evident that throughout the period of its ^ collective- bargaining ' relationship with''Cargo Handlers, the Union consistently claimed that its members had priority for all longshoremen's work and-that'not until the union roster was exhausted could the Company hire anyone else. It is ' equally apparent that the Company acquiesced in this practice, so that when Mills, its hiring boss, needed crews he-delegated the initial selection of the crew members to Morris, the president of Local 1911, and to the Buchanans, who were also officers in the Local. For many months not one nonunion man was referred by. Morris' to the Company, obviously because, of the manner • in which this hiring arrangement , functioned,. 8 Known throughout the record as "gang carriers ."` 3 At one point during his examination, Morris was testifying about the union practice' which obtained 'prior` to 'the time when Negroes' were admitted to membership in Local 1911 . He was asked' "Suppos'e's -two hatch . . . ship came in; who worked the ship, white men or Negroes?" He answered "Well, it's like Mr . Haile told us when we got • started-he said , 'All Union men have first preference. So 'at that time • it' was just the white."' " ' The quotation 'is' from a tape recording of the meeting in question The proceedings at the meeting wer`e 'recorded by Holdt and subsequently, at the unfair labor practice hear- ing, he volunteered to'play 'back -the recording which was thereupon ' transcribed by the official reporter. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indeed, it was only the eve of the hearing in this case that, according to Mills, Morris did make one such referral. On the foregoing evidence, it is manifest, and I find, that from the outset of their contractual relations and at all times material the Company and the Union had a working arrangement which accorded initial preference in hiring to members of the ILA. 2. The composition of the unit and the Employer's wage practices It was stipulated at the hearing that the unit which the Union represented and for which it bargained included only those classified as members of the stevedore gang. It was further stipulated that the number of men in these gangs varied from 13 to 17. The smaller crew was referred to in the record as a "tuna gang" and was used in unloading fish from the ships carrying cargo for Maryland Tuna. This crew con- sisted of eight longshoremen who worked in the hold, two winch operators and a signalman on the deck, and two men on the pier.5 The larger crew with its 17 members, was used in unloading the ships of the Coldwater Seafood Company, and was known as a "Coldwater gang." This type of gang and 12 longshoremen in the hold, 2 winch operators and 1 signalman on the deck and 2 men on the pier.6 Apart from the foregoing, no other employees of the Company were in the unit. Thus, other dock personnel such as checkers, who counted the cargo as it came off the ship, and laborers engaged in moving cargo away from the pier were not represented by the Union. When the Union was first recognized by the Company in September 1964 the parties reached a verbal agreement to continue in effect the existing wage scale pending the negotiations of a contract .7 As a result, for many months thereafter, the union members of the stevedore gangs received $2.25 per hour.8 During the same period, unorganized personnel such as laborers on the dock received $1.75 per hour and checkers were paid $2. During the spring of 1965, the Union and the Company agreed upon a new wage scale and prepared a draft of their understand- ing. Although none of the witnesses testified as to precisely when the new contract and its wage rates became effective,9 there was general agreement that the date was sometime in March. Included in its terms was a provision fixing the gang size at 13 men for tuna boats and 17 for Coldwater boats.10 This agreement also provided that longshoremen and tractor„ or forklift, drivers would be paid $2.85 an hour and winchmen, signalmen and gang carriers $3.10 per hour. 3. Findings as to racial discrimination In the early part of 1965 some of the Negroes in Cambridge voiced the charge that members of their race were being excluded systematically from work as long- shoremen at the port. It is unnecessary to set forth here all the various steps which the different complaints took to press these charges. Suffice to say that on March 4, 1965, and as a result of these allegations the Company and the Union held a meet- ing to which these Negroes -were invited. The events which occurred at that meet- ing will be discussed in detail later herein. In the meantime, the facts with respect to the practices of the Company and -the Union prior to that date in March 1965 must be considered. For some while after it -began operations in 1962, Cargo Handlers hired -only white longshoremen. This was at a -time when it was necessary to unload only two 5 The gang members on the pier were either forklift operators or hookers. The latter were so known because their job consisted of ,booking and -unhooking , the winch slings ,on the pallets brought out of the hold by the ship's tackle. _ 6 At some point shortly before the hearing, a gang carrier was added to ,this type of crew, making a total of S8. 7In the fall of 1964, the ILA was on the verge of entering upon what proved to be very protracted collective -bargaining negotiations covering the port of Baltimore and the entire Atlantic coast. , 8 Winchmen and signalmen on a crew received slightly more. 6 None of the parties could, or would, testify as to a precise date when this agreement was reached. Thus, although Holdt could not recall the date of the occasion, he testified that a draft of this contract, identified as ILA Exhibit 1, was typed in,his office. Morris, president of Local 1911, testified that this agreement was reached, sometime in March 1965 and Haile fixed the time as "somewhere in March." 10 It also provided that the gang size for other ships which might arrive in the harbor would be determined by the working conditions established in the port of Baltimore. CARGO HANDLERS, INC. 337 hatch ships. Eventually, however,- it became necessary to supply gangs for the unloading of as many as three hatches simultaneously. At that point the Com- pany began the practice of hiring Negroes to work in the third hatch. On the other hand, these third gangs were not composed exclusively of Negroes. Whereas Negro longshoremen worked in the hold, the better paying jobs of winchman and signalman on these gangs were filled by whites." Prior to March 1965, some of the Negroes in Cambridge who had worked as longshoremen sought to join Local 1911. Their efforts were met.by a wall of silence. Albert Jones and William Phillips, two Negro stevedores, testified that when they heard rumors as to the existence of a union in the port, they endeavored to learn about admission and membership in such a labor organization, but were completely unsuccessful. Willie Christon testified that in January 1965, he and Ronald Sampson, another Negro longshoreman, sought out Omro Morris to inquire about joining the Union and to find out where and when its meetings were held. Morris was most uncommunicative and would give them no information.12 Finally, the efforts of this group to secure assistance in their campaign led them to the office of Charles Cornish, a Negro leader in Cambridge and one of the city commis- sioners. Thereafter, in February they filed protests and charges with the Cam- bridge Interracial Committee and later with the Maryland Interracial Commission. In March, Jones, Phillips, Sampson and other Negroes went to Baltimore where they conferred with Dominic Foraaro, president of the AFL-CIO Council in that city. This last meeting resulted in a conference with Haile and Kopp, representing the ILA, at which time the group from Cambridge voiced their complaint that Negroes were not allowed to join Local 1911. Both Haile and Kopp promised that they would go to Cambridge and investigate the facts with respect to this charge. In the meantime, on March 4, the Company and Local 1911 held a meeting at one of the local churches to which all the Negro longshoremen were invited. Holdt testified that the meeting was called to secure men for unloading a ship which was expected in the harbor within a few days and that it was also prompted by the pro- tests which the Negroes had registered with the Interracial Commission. Present at the meeting, in addition to Holdt, were Robert Davis, president of the Company, Hiring Boss Mills, Omro Morris and Reginald Todd, president and vice president of the Union, respectively, and about 20 Negroes. Holdt told those present that a Coldwater ship was expected in the harbor shortly, that three gangs would be needed and that one of them would be a Negro gang for which Willie Christon would be responsible.13 Holdt further warned that when Christon was notified as to the time to arrive at the dock with his crew, that he would have to report at the appointed hour with a full gang or none of its members would be permitted to work. Holdt then went on to tell the men that the Company hired its stevedores through the Union, that if the job applicants were members there would be no prob- lem, but that if they were not they would have to make arrangements with Omro Morris to work on a stevedoring gang. After being introduced to the group by Holdt, Morris stated that the Union would take 5 cents out of every dollar earned by nonmembers who worked on a stevedoring gang. He also told them that the Union "would collect ... when you finish the boat and got your checks. And any- body that doesn't pay, he wouldn't work no more. We can stop that .. He further explained that this money would go "into the Local 1911 kitty ..." but that payment of this amount would not mean that the nonmembers were joining the Union. When some of those present then asked Morris as to the amount of the initiation fee required of those who sought to join the Union, the union president told them that there was no set fee, that the amount was, as he described it, "a n In partial response to the General Counsel's allegation that the Employer pursued, or acquiesced in, a discriminatory hiring policy, the Company contended that from the time of its incorporation until about June 1, 1965, approximately 20 to 30 percent of its payroll was Negro. Admittedly, however, this included a substantial number of Negroes hired as laborers for work on the dock. As found above, this was a job classification that was not in the bargaining unit and which was unrepresented by the Union. 12 Christon's testimony in this connection was never denied or contradicted by Morris. 13 Morris testified that at the time of the meeting it was presumed , on the basis of past practice, that two of the necessary gangs on the incoming ship would be all white gangs, and that the only question to be settled at the meeting was whether the Negroes could produce the full complement for a third gang. 243-084-67-vol 159-23 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD float," and that it could' go as high as $300 or even $800.14 Other questions as to when the Union would hold its next meeting were met by Morris with the state- ment that he did not know and that he would be unable to answer such questions until he heard from those whom he described as "The guys in Baltimore." The meeting ended after Morris had answered further queries as to how those present could qualify for membership in Local 1911 and after Holdt had given additional instructions as to the number of men that Christon would have to secure in order to have an all-Negro gang at the dock when the next ship arrived.15 Early in April 1965, Haile and Kopp met with the leaders of Local 1911. According to Kopp, at this time it was decided to admit 17 Negroes, or enough to constitute a a complete stevedore gang. Thereafter, this decision was implemented by the Union. Kopp testified that at a meeting held with the Negroes on about June 1, they were told that Local 1911 would admit 17 of them to membership. At that time 8 of those present signed membership applications. One of the union officials gave a book of membership applications to Elaine Adams, the leading pro- tagonist of the Negro complainants, and suggested that she solicit the balance of the applications and turn them over to Omro Morris, president of Local 1911. On June 23, 1965, Local 1911 admitted Negro members for the first time, when several were sworn in on that day.'6 Thereafter several more were admitted so that at the time of the hearing, the Union had 14 Negro members and 28 white mem- bers. During the course of the summer of 1965 and up to the time of-the hearing, it appears that the Negro members of the Union were referred for employment, as stevedores, and employed, with some • frequency.17 On the other hand, it is clear from the record that the Company continues to accord preference in-hiring to union members. This conclusion is manifest, not only from the findings set forth earlier but from additional evidence developed at the hearing. Thus, the draft agreement which the parties reached in March 1965 pro-, vides in one section that working conditions under the contract are to be in accord with what is referred to as the "Baltimore system." At the. hearing the Union offered in evidence, as background material, a copy of the collective-bargaining agreement which had been in effect for a long period at the port of Baltimore. Counsel for the Respondent Union pointed out as particularly relevant those para- graphs in that agreement which set up the hiring hall arrangement in use at that harbor.18 Application-of this arrangement to the contract between the Union and, the Company in this instance means that the parties agreed upon the conventional hiring of longshoremen through Local 1911, rather than directly by the Company. In the Baltimore Cargo Agreement there is a 'provision requiring that selection of applicants for such referral shall not be based on union membership. Cf. Local 357, International Brotherhood of Teamsters v. N.L.R B., 365 U.S. 835, 840. The findings set out above, however, establish that in the port of Cambridge the hiring system in effect between the Union and Cargo Handlers contemplated that prefer- ence would be given to union members and that only after all available union mem- bers had been hired would nonmembers have an opportunity for employment. ' In addition to all of the evidence in this regard set out earlier in 'this Decision, there appears in,a prehearing affidavit of William Haile, vice president of the ILA, dated May 6, 1965, received in evidence during his cross-examination; the following con- cession by Haile: "Under the agreement we have with Cargo Handlers all union men there are to be hired and if the Company needs more they can hire anybody else that comes " From all of this evidence it is apparent that under the hiring hall arrangement which Local 1911 maintains with Cargo Handlers, the latter continues 14 The original members of Local 1911 had actually paid an initiation fee of $10 each.- At the hearing, Morris characterized his statements at the meeting as to the large initia- tion fees which prospective union members would have to pay as "an error on my part." He further testified that, in fact, and notwithstanding what he had said at the meeting, no nonmember was ever charged 5 cents out of every dollar earned for the privilege of working on a stevedore gang.' , ' " is Holdt told Christen that the Union would furnish the 2 winchmen and signalman for his crew, so that Christon' would only have to bring 12 men with him. 19 The complaint against the Respondents in the present case was issued on June 22. 17 Morris conceded that none of them have as yet been , assigned to' work as winchmen or signalmen. Kopp, however, testified that the ILA is'endeaboring'to establish a train- ing program that will enable all its members to qualify for 'those jobs 't requiring spej cial skills. Is Namely, paragraph 13, subparagraphs 1, 2, and 4, of Respondent Union's Exhibit 2, known in the record as the "Baltimore Cargo Agreement." CARGO HANDLERS, INC. 339 to accord preference in hiring to the members of the Union and that it does not hire any stevedores until all the members of Local 1911 have been offered an opportu- nity to work. 4. Concluding findings It is clear, of course, that the infrequent and irregular arrival of ships in the port of Cambridge made employment with the Respondent Company sporadic and unstable. Since individuals with other regular employment were normally unavail- able, the principal sources from which the Company could secure its labor force were the self-employed and the unemployed. Even so, on a given day and for the arrival of a specific ship, it was frequently difficult for the Employer to procure the necessary number of men. Moreover, there is much evidence in the record to sup- port the assertion in the brief filed by the Respondent Company that, in practice, on many occasions neither the Union nor interested Negro leaders were able to supply Cargo Handlers with sufficient workers. Thus, Holdt testified that whereas approxi- mately 20 Negroes attended the meeting of March 4 and manifested a desire to work as stevedores, when the next ship arrived in port, only 9 of them reported for duty. Holdt and other witnesses for the Respondents also testified to other occa- sions when the Company had the same, or a similar experience, in securing an ade- quate number of stevedores to provide the required number of gangs for unloading a specific ship. This testimony, adverted to by the Respondent Company in its brief, was neither contradicted nor denied. The Respondent Union, in turn, has protested vigorously that it is unfair to ascribe any discriminatory motives to the ILA because of the many advances which that union has achieved in the field of race relations. Thus, in his brief, its counsel alludes to the fact that William Haile, an international vice president and the top ILA official in Baltimore, is himself a Negro. Similarly, the first sand second Inter- national vice presidents of the ILA are both Negroes and the governing body of the Baltimore District Council of the ILA is made up of 9 Negroes and 9 whites. An affidavit of Thomas W. Gleason, International president of the Respondent Union, was received in evidence at the hearing. In that affidavit, Gleason averred that, although membership records have never been kept on the basis of race, he believes that at least one-half of the 100,000 members of the ILA, if not a majority, are Negroes. He further averred that "More Negroes participate in our District and International conventions than is the case with virtually any other labor union in the country." Whereas these achievements of the Respondent Union are, indeed, noteworthy, and whereas the Company's difficulties in securing a competent pool of stevedore labor may tend to explain why Cargo Handlers acquiesced in the preferential hiring arrangement with the ILA and its Local 1911, neither factor may excuse, nor justify, an evasion of the obligations imposed on unions and employers by the National Labor Relations Act. On the basis of the record in this case it is my conclusion that the hiring hall arrangement, found above, whereby Cargo Handlers accords prefer- ential hiring to union members and hires them only through Local 1911, is illegal and that its maintenance by Respondents constiutes a continuing violation of the Act. Skouras Theaters Corporation (Stage Employees, Local 642), 155 NLRB 157; N L.R.B. v. Houston Maritime Association, 337 F.2d 333, 334 (C.A. 5). The General Counsel also established that for a long period of time, the Union, while acting pursuant to this illegal hiring arrangement with the Company, refused to refer Negroes not only because they were nonmembers of Local 1911 but also because of their race. As found above, the organization and chartering of Local 1911 was accomplished by a group of white members in the fall of 1964.19 For 10 At one point the General Counsel appeared to contend that. the ILA initially planned that Local 1911 would be made up of only the white stevedores in Cambridge and that later another local would be chartered for the Negroes. Consonant with this theory, the General Counsel secured some testimony from Kopp as to the various locals of the ILA in'Baltimore. , According to, the latter; of the two large general cargo locals in that port, one, Local, 829, is made.up predominantly, of white members (with less' than 25 Negroes among its 956 members ) and'the other,, Local 858, is composed mainly of Negroes (*ith, less than 40 whites among 1200 members). At the hearing, however, Kopp testified that he knew of no plans at any time during the period in question for the establishment of a separate local for Negroes in Cambridge. According to Kopp, the fact that only whites, were solicited originally to join arose solely from the sheer happenstance that at the time that he and Haile were at the docks in August there were no Negroes at work. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD many months thereafter Negroes who sought information from Omro Morris as to its meeting place and details such as the cost of initiation into the ILA were either ignored, or given answers that obviously were designed to mislead and discourage them in their efforts. During this period, some Negroes, it is true, were hired as stevedores, but this occurred only in those instances when the arrival of a three hatch ship made it impossible for the Union to fill the demand for three complete gangs of longshoremen. Even in those latter instances, the Negroes so hired by Cargo Handlers had not been referred for work by the Union, but were employed directly by Hiring Boss Mills when they appeared at the dock.20 Not until after Negroes were admitted to membership in June 1965 did Local 1911 actually refer any of them for employment as stevedores with the Company. It is well established that a union, which under Section 9 of the Act accepts the responsibility of filling the role of collective-bargaining agent for employees, must also assume the corollary obligation to act fairly and impartially in this capacity and "to represent equally and in good faith the interests of the whole group." Hughes Tool Company v. N.L.R.B., 147 F.2d 69, 74 (C.A. 5). When a union with the status of an exclusive bargaining agent takes hostile action against any employ- ees in the appropriate bargaining unit, "upon the irrelevant, invidious, and unfair consideration of race and union membership" (Local 1367, International Long- shoremen's Association (Galveston Maritime Association), 148 NLRB 897, 898), the union violates its obligation to be a fair and impartial representative and thereby restrains and coerces those adversely affected. The Board has held that such a union denies to those employees the representation which they are guaran- teed by the Act and thereby violates Section 8(b)(1)(A). Hughes Tool Company (Independent Metal Workers Union, Local No. 1), 147 NLRB 1573, 1574; Local 1367, International Longshoremen's Association, supra, 898-900; Maremont Cor- poration (UAW), 149 NLRB 482; Local Union No 12, Rubber Workers (The Business League of Gadsden), 150 NLRB 312.21 The conduct of the Respondent Union here, on the findings set forth above, must be held to have violated the Act in this manner and so find. Moreover, since this course of action on the part of the exclusive bargaining agent resulted in the denial of employment to Negroes who sought work with Cargo Handlers, conclude and find that this also constituted dis- crimination by the Respondent Union within the meaning of Section 8(b)(2) of the Act. In his brief, the General Counsel concedes that if the Company had, for reasons of its own, and independently of the Union, elected to discriminate against Negroes because of their race, there would be no violation of the Act. That, however, is not the situation in this case, for having entered into the unlawful hiring arrange- ment found herein, Cargo Handlers became a party to the illegal discrimination which Local 1911 was practicing as to the Negro stevedores in the port of Cam- bridge. Consequently, as the Respondent Company participated in the pattern of unlawful conduct found above, it is my conclusion that Cargo Handlers also restrained and coerced employees within the meaning of Section 8(a)(1) of the 2D Christon testified that it was his practice and that of other Negroes, prior to the time when members of his race were admitted to membership in Local 1911 , to depend for news of ship arrivals on radio and newspaper reports and then appear at the dock in the hopes that they might be needed. 21 The Union moved, both at the outset and at the close of the hearing, to dismiss the complaint on the ground that the majority opinion of the court in N L.R.B. v. Miranda Fuel Co., 326 F.2d 172 (C A. 2) should govern the matter at issue herein, rather than the holding of the Board in Hughes Tool, supra. The Board , however, has already stated that it will not adopt the position of the court majority in Miranda until so required by the Supreme Court of the United States, Local 1367, etc., supra, 898, footnote 7. Where there is a difference of opinion between the Board and the courts of appeals as to a ques- tion of law, the views of the latter may cause the Board to reconsider its position , or, the Supreme Court may be petitioned to resolve such differences . In any event, the existing conflict on the legal issue cannot be resolved at the Trial Examiner's level, for he is plainly bound by the decisions of the Board . Insurance Agents' International Union (Prudential Insurance Company of America ), 1.19 NLRB 768, 772-773, set aside on other grounds, 260 F.2d 736 ( C.A D.C.), affd. 361 U S. 477 CARGO HANDLERS, INC. 341 Act and discriminated with respect to their tenure of employment within the mean- ing of Section 8(a)(3)22 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Employer 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 As found earlier, notwithstanding the discrimination practiced against Negroes in the early history of Local 1911, it is apparent that in the period immediately prior to the hearing in this case the Respondent Union and the Respondent Company endeavored to correct many aspects of this discrimination based on race. However, the hiring arrangement which accords illegal preference to union members is still operative . In any event, the extent to which the parties themselves have taken cor- rective action will not determine the remedy. "It is well settled that voluntary dis- continuance of illegal conduct after the commencement of litigation does not moot a case." Hughes Tool Co., 147 NLRB 1573, 1605. Consequently, it will be rec- ommended that the Respondents , and each of them, be ordered to cease and desist from the unlawful conduct found herein and to take certain affirmative action designed to effectuate the purposes of the Act. The complaint named four Negro longshoremen 23 whom the -General Counsel alleged that the Respondent Union had refused to refer for employment by Cargo Handlers and whom the latter had refused to hire. Although I have found that the referral and hiring practices of the Respondents violated the Act and discriminated against Negro stevedores in the port of Cambridge as a group, the General Counsel did not establish any backpay entitlement of the four above-named individuals. Nor does the General Counsel in his brief make a request that there be any back- pay provision in any remedial order. Under these circumstances and because it is my further conclusion that a backpay remedy is neither necessary nor practical in this case, no such recommendation will be made. Cf., Local 1367, International Longshoremen's Association, et al. (Galveston Maritime Association, et al.), 148 NLRB 897, 922. Instead, other and more appropriate remedial action will be rec- ommended which has for its objective the elimination of the unfair labor practices found herein. CONCLUSIONS OF LAW 1. Cargo Handlers is engaged in commerce and the ILA and Local 1911 are labor organizations, all within the meaning of the Act. 2. The ILA and Local 1911 have restrained and coerced employees in the exer- cise of rights guaranteed by Section 7 of the Act and in violation of Section 8(b) (1) (A) of the Act. 3. The ILA and Local 1911 have caused, or attempted to cause, Cargo Handlers to discriminate against employees in violation of Section 8(a)(3) of the Act and by this action have violated Section 8(b)(2) of the Act. 4. By entering into, and maintaining, an illegal hiring arrangement, Cargo Han- dlers has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 2211. . . an employer may not avoid liability for violations of the Act by the hiring hall when he has turned over to it the task of supplying the men to be employed " Morrison-Knudsen Company, Inc. v . N.L.R.B , 275 F.2d 914 , 917 (C.A. 2 ) ; N.L R.B. v. Houston Maritime Association, Inc., 337 F.2d 333 (C.A. 5) ; N.L.R.B. v. Southern Steve- doring & Contracting Co., 332 P.2d 1017, 1019 (C.A. 5). 23 I.e., Willie Christen , Louis Phillips , Eugene Jones, and Ronald Sampson