New Bedford Stevedoring Corp.

740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for Region 23, in writing, within 20 days of the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.6 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read • "Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate employees concerning their or other employees' activities on behalf of the union organization by the General Drivers, Ware- housemen, and Helpers, Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization. WE WILL NOT threaten employees with discharge or other adverse action because of their support of the above-named Union or any other labor organization as their collective-bargaining representative. WE WILL NOT state to employees that Respondent will never sign a contract with the above-named Union or any other labor organization. WE WILL NOT solicit employees to withdraw their union authorization cards and to seek to have other employees withdraw their union authorization cards or assist employees in withdrawing their union authorization cards. WE WILL NOT give employees the impression that we are engaged in sur- veillance of their union activities by recording their telephone conversations. WE WILL NOT change working conditions in order to interfere with employ- ees in their union organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection and to refrain from any and all such activities except to the extent that such rights may be affected by the provisos in Sec- tion 8 (a) (3) of the Act, as amended. HEIGHTS FUNERAL HOME, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. 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 Avenue, Houston, Texas 77002, Telephone 228-4722. New Bedford Stevedoring Corporation and William F. Conceicao, Frank M. Gomes, Ronald Magnett, Jack Tavares, Henry Dias, Frank Araujo, Antone Ramos and Paul Pinto and Mario Monteiro and International Longshoremen's Association, Locals 1413 and 1465, AFL-CIO, Parties to the Contract. Cases 1-CA-5230 (1-8) and 5257. June 20,1966 DECISION AND ORDER On April 14, 1966, Trial Examiner Milton Janus issued his Deci- sion in the above-entitled proceeding, finding that Respondent had 159 NLRB No 68. NEW BEDFORD STEVEDORING CORPORATION 741 engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 these cases to a three-member panel [Chairman McCulloch and Members Brown 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in the cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following modifications. [The Board adopted the Trial Examiner's Recommended Order with the follow ing modifications: 1 [(1) Add the following paragraph as paragraph 1(b) and reletter the present paragraph 1(b) as 1(c) : ["(b) Maintaining in effect, implementing, g Article V, or renewing entitled `Welfare, Pension and Clinical' of the contract dated Octo- ber 1, 1964, to the .extent that said article grants preferential treat- ment to employees who are union members." [(2) Insert the following paragraph as the second paragraph in the attached notice. [WE WILL NOT maintain in effect, implement, or renew article V, entitled "Welfare, Pension and Clinical" of the contract dated October 1, 1964, to the extent that said article grants preferential treatment to employees who are union members.] 1 As we have found that Respondent violated Section 8 ( a)(3) and (1) of the Act by Implementing a provision in its current agreement with the Union , which prescribes that union members be paid more than nonmembers with the same qualifications for the identi- cal work, we will also order Respondent to cease and desist from maintaining or giving effect to this clause See J. W. Bateson Company, Inc, 134 NLRB 1654, 1656 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was heard on March 9, 1966 , in New Bedford, Massachusetts, before Trial Examiner Milton Janus , upon a complaint by the General Counsel that New Bedford Stevedoring Corporation had violated Section 8(a)(3) and (1) of the Act by paying certain employees who were not union members less in fringe benefits than it was paying to its employees who were union members .' Inter- national Longshoremen 's Association, Locals 1413 and 1465, AFL-CIO (referred to as the Union ), parties to the contract, were served with a copy of the complaint 1 The charge in Case 1-CA-5230 ( 1-8) was filed by certain employees on November 15, 1965, and December 6, 1965, the charge in Case 1-CA-5257 was filed by Mario Monteiro, an employee , on December 6, 1965. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and notice of hearing, but failed to appear at the hearing. The General Counsel and Respondent were represented, and were afforded full opportunity to present relevant evidence and to argue orally on the record. However, in view of Respond- ent's oral answer at the hearing admitting the allegations of the complaint, no wit- nesses were called to testify and, after receipt into evidence of The current bargain- ing agreement between Respondent and the Unions, and a stipulation between Respondent and the General Counsel stated on the record, the hearing was closed .2 Upon the record in the case, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Massachusetts corporation, maintains a terminal and office at New Bedford, Massachusetts, where it is engaged in the loading and unloading of ships' freight. Respondent performs such services for various customers engaged in inter- state commerce under the Act, and receives in excess of $50,000 per annum from them for such stevedoring work. Upon these facts I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and I find that International Long- shoremen's Association, Locals 1413 and 1465, AFL-CIO are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Respondent and the Unions are parties to a collective-bargaining contract which became effective October 1, 1964, and will terminate September 30, 1968. It contains a maintenance-of-membership clause under which all employees who were members of the Unions on October 1, 1964, are obligated to retain their membership. Other employees, however, are not required as a condition of employ- ment to join the Unions. Part V of the contract, entitled "Monetary Benefits to Employees," prescribes hourly rates for particular kinds of stevedoring work for each of the 4 years of the contract, without any distinction among employees based on union membership. Another paragraph of Part V, entitled "Welfare, Pension and Clinical," provides that "The contributions to be paid by the employers to the employees in lieu of welfare heretofore established by the parties" shall be 5 cents beginning October 1, 1964, and 12, 11, 14 cents as of each succeeding October I. The contract expressly provides that these additional amounts shall only be paid to union members who have worked a total of 150 ship hours during the previous contract year. As amended at the hearing, the complaint lists the names of 10 employees 3 to whom the Respondent failed to pay "full fringe benefits" because they were not union members, and alleges that Respondent thereby discriminated in regard to their terms and conditions of employment, thus encouraging their membership in the Unions in violation of Section 8(a)(3) and (1) of the Act? The Respondent and General Counsel stipulated at the hearing that each of the 10 named employ- ees had worked 150 or more ship hours during the previous contract year. . 2In view of Respondent's admission at the hearing that the conduct alleged in the com- plaint constituted a violation of the Act, I suggested that the General Counsel and Re- spondent explore the possibility of a settlement agreement, but was advised by the General Counsel that he was unwilling unless the Unions agreed to be bound by a settlement, and that they had refused to do so. 3 William F. Conceicao, Frank M. Gomes, Ronald Magnett, Jack Tavares, Frank Araujo, Antone Ramos, Mario Monteiro, Roland B. Ferguson, Joseph M. Rozario, and Manuel T. Rozarlo. 4The stipulation entered into at the hearing makes it clear that the "full fringe bene- fits," as to which discrimination is alleged, are the amounts referred to in Part V of the contract as "Welfare, Pension and Clinical." Although the contract refers to these amounts as "contributions," I find, based on the contract and the stipulation, that they are paid directly by Respondent to its employees as part of their wages, and are not con- tributions paid by an employer to a fund by which employees may be entitled to deferred benefits under specified conditions. - NEW BEDFORD STEVEDORING CORPORATION 743 Concluding Findings The contractual provision under which union members with at least 150 ship hours are paid more compensation that nonmembers with at least 150 ship hours for the same work is so patently discriminatory and unlawful that extended discus- sion is superfluous. The Supreme Court has put the matter to rest finally and con- clusively. In Gaynor,News Company, Inc. v. N.L.R.B., 347 U.S. 17, the Court said, at p. 47, "We do hold that in the circumstances of this case, the union being exclusive bargaining agent for both its members and non-member employees, the Employer could not, without violating § 8(a)(3), discriminate in wages solely on the basis of such membership even though it had executed a contract with the union prescribing such action." To the same effect are Carty Heating Corporation, 117 NLRB 1417; Northeast Coastal, Inc., 124 NLRB 441, 442; Haynes Express, 134 NLRB 408, 411; and Local 1474-1, Pipe Coverers, ILA, 47 NLRB 90. I find that the Respondent has violated Section 8(a)(3) and (1) by paying union mem- bers more than nonmembers who have satisfied the prescribed hourly qualifications for performing identical work IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III above, occurring in connec- tion with the operations of Respondent described in section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY I will recommend that Respondent cease and desist from engaging further in the unfair labor practices found, and take certain affirmative action which will effectuate the policies of the Act. Specifically, I will recommend that Respondent make whole the 10 employees who were not members of the Unions but who had each worked 150 ship hours the previous contract year for their loss of earnings attributable to Respondent's observance of the unlawful provisions of its contract with the Unions, during the 6-month period prior to the filing of the original charge herein. As none of the employees involved were laid off or terminated for discriminatory reasons during this period or thereafter, no questions are presented as to reinstatement or setoffs for interim earnings. The backpay due shall bear interest at the rate of 6 percent per annum, in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. Although Respondent has violated Section 8(a)(3), the character and scope of the violation do not, in my opinion, indicate any pro- pensity on its part to interfere with, coerce, or restrain its employees generally in the exercise of rights guaranteed them under Section 7 of the Act. I shall there- fore recommend only that Respondent cease and desist from engaging in the specific unfair labor practice found and from any like or related violation. 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. Respondent, New Bedford Stevedoring Corporation, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Longshoremen's Association, Locals 1413 and 1465, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By discriminating with respect to the wages paid to nonmembers of Inter- national Longshoremen's Association, Locals 1413 and 1465, AFL-CIO, thereby encouraging, membership in said Unions, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, Respondent has interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) 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 Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that New Bed- 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ford Stevedoring Corporation, New Bedford , Massachusetts, its officers, agents, suc- cessors, and assigns, shall: 1 Cease and desist from: (a) Encouraging membership in International Longshoremen 's Association, Locals 1413 and 1465 , AFL-CIO, or any other labor organization of its employees, by discriminating against employees in respect to their compensation or any other term or condition of employment , because of their nonmembership in such organization. (b) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of their rights to self-organization , to form labor organiza- tions, to join or assist the above -named Unions or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in' other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized by Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole William F. Conceicao, Frank M. Gomes, Ronald Magnett, Jack Tavares, Frank Araujo, Antone Ramos, Mario Monteiro , Roland B. Ferguson, Joseph M. Rozario, and Manuel T. Rozario for any loss of pay they may have suffered by reason of Respondent's discrimination against them , in the manner set forth in the section entitled "The Remedy." (b) Upon request, make available to the Board or its agent for examination and copying all payroll, social security , timecards, and personnel records necessary to determine the amount of moneys due under the terms of this Recommended Order. (c) Post at its terminal at New Bedford, Massachusetts , copies of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for Region 1, shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing , within 20 days from the receipt of this Decision,6 what steps it has taken to comply herewith. 5 In the event that this Recommended Order Is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order." 6In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read' "Notify said Regional Director, in writing , within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT encourage membership in International Longshoremen's Asso- ciation, Locals 1413 and 1465, AFL-CIO, or any other labor organization of our employees , by discriminating against employees in respect to their compen- sation or any other term or condition of their employment, because of their nonmembership in such organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to BALDWIN SUPPLY COMPANY 745 refrain from engaging in such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized by Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL make whole William F. Conceicao, Frank M. Gomes, Ronald Magnett, Jack Tavares, Frank Araujo, Antone Ramos, Mario Monteiro, Roland B. Ferguson, Joseph M. Rozario, and Manuel T. Rozario for any loss of pay they may have suffered by reason of our discrimination against them during the period May 15, 1965, to date. NEW BEDFORD STEVEDORING CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts 02108, Telephone 223-3353. Baldwin Supply Company and Chauffeurs, Teamsters and Help- ers Local No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Case 9- CA-3581. June 00, 1966 DECISION AND ORDER On March 29, 1966, 'T'rial Examiner A. Bruce Hunt issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those allegations be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Exam- iner's Decision and a brief in support thereof. The Respondent did not file any exceptions to the Trial Examiner's Decision. 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 Zagorial. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the General Counsel's exceptions and brief, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications and exceptions. 159 NLRB No. 67.