James J. Flanagan Stevedores

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James J. Flanagan Stevedores and Robert Alvin Bienvenu, Jr., and James E. Phillips, Individuals. Cases 23-CA-2282, 23-CA-2282-2 November 2, 1967 DECISION AND ORDER BY MEMBERS BROWN , JENKINS , AND ZAGORIA On February 2, 1967, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in other violations alleged in the complaint and recommended dismissal as to them. Thereafter, Respondent filed exceptions and a sup- porting brief. The General Counsel filed limited ex- ceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following modifications: We agree with the Trial Examiner's conclusion that Respondent violated Section 8(a)(3) and (1) of the Act by withholding 2 days' pay from Bienvenu and by not paying him his share of the profit-sharing plan. We further agree with the Trial Examiner's finding that Respondent did not violate Section 8(a)(3) and (1) by withholding from Phillips his share of the profit-sharing plan. We also adopt the Trial Examiner's conclusion that Respondent did not violate Section 8(a)(3) and (1) by refusing to call Bienvenu and Phillips through the Union's hiring hall to prepare certain reports which they had prepared prior to the existing collective-bargaining contract. However, we do so for different reasons, which are detailed below. . In this connection, we note the following findings of fact which are set forth in the companion case, James J. Flanagan Stevedores, 168 NLRB. As discussed therein, the arbitration award of May 27, 1966, affecting Bienvenu, only interpreted the con- tract and did not pass upon which employees the certified bargaining unit covered. Furthermore, the Union was certified for a unit of "steamship clerks, clerks, checkers and tallymen." The word "clerks" as used in the certified unit description is am- biguous and the meaning was never litigated, as the parties in the representation case involving Re- spondent agreed to a stipulation for certification upon consent election.' Moreover, prior to the execution on November 1, 1965, of the existing collective-bargaining agree- ment, Bienvenu and Phillips were regular monthly clerks. As such, Bienvenu primarily prepared the Army work report and for a minor portion of his time "clerked ships." Phillips primarily "clerked ships"2 and in addition prepared various special re- ports, including the daily working report, which is similar to the Army work report except that it is for commercial vessels, and also the daily receiving report .3 According to the president of Respondent and also the president of P.C. Pfeiffer Stevedoring Company, the work of a clerk and checker involves the physical counting of cargo from wharf to vessel and vessel to wharf.4 Bienvenu testified to substan- tially the same definition. Phillips testified that "clerking a ship" meant loading a ship. After about 15 bargaining sessions, the Respond- ent and the Union negotiated the contract referred to above. Throughout such negotiations, the Respondent's representative stated that after the execution of the contract the Respondent would not employ regular monthly clerks because as of that date Respondent would secure such clerks as needed through the union hiring hall. The contract describes the bargaining unit as: 1. SCOPE OF WORK (A) The scope of work involved in this con- tract shall cover all Clerks, Checkers or Tal- lymen employed in checking, receiving or ' Case 23-RC-2436 See transcript in Texas Stevedores Co , Cases 23-RC-2435 through 2441 2 It is not clear from the record how much time Phillips spent on prepar- ing the special reports but he himself testified that his primary duty was clerking ships He further testified that he collected the data for the daily working report while he was clerking a ship, and that he prepared the daily receiving report in time left over from his duties involved in clerking a ship , Both the Army work report and the commercial daily working report list items for which the Respondent is entitled to reimbursement above the regular commodity rate These items, for example, include extra labor, ex- cessive weight or bulky size of cargo, special overtime, and deadume dur- ing rain The daily receiving report shows such information as how the cargo was brought to port, the amount and type of cargo, the destination port, the mark on the bag or drum, and the number of units the cargo was over or short " At most, according to the president of Pfeiffer Stevedoring Company, the work of clerks and checkers could include the transposing of certain figures showing the count of cargo, which figures the clerk turned in to the office A clerk and checker does not appear to prepare any reports show- ing notations for labor, such as the reports herein prepared by Bienvenu and Phillips Incidentally, the terms "clerk," "checker," and "tallyman" seem to be used more or less interchangeably 168 NLRB No. 10 JAMES J. FLANAGAN STEVEDORES 63 delivery of freight, or (Ships Stores when Clerk and Checker is used) from vessel to wharf or wharf to vessel, and such Clerks, Checkers and Tallymen as are employed in making delivery to and from drays and/or other conveyances, including railroad cars or transport companies. (B) The members of the Parties of the First Part shall have the right to employ members of the Parties of the Second Part, calling them by name to be used as regular salaried Wharf Clerks, extra Wharf Clerks as provided in Sec- tion 3; it being distinctly understood the em- ployer has the right during the life of this con- tract to call regular monthly men, extra Wharf Clerks by name and complete discretion as to the number of regular men to be carried on monthly payroll, varying the number as they see fit with the usual proper notice of fifteen days. In view of the foregoing, we conclude that the contract by its terms describes the bargaining unit as clerks, checkers, or tallymen employed in checking, receiving, or delivery of freight from ves- sel to wharf or wharf to vessel. The contract omits from the unit description employees engaged in the preparation of reports. In all the circumstances of the case, we conclude that the parties, after lengthy bargaining sessions, arrived at a contract unit which they apparently in- tended to reflect the stipulated unit certified by the Board. Moreover, we find that the contract in- terpretation of the stipulated and certified unit is not on its face unreasonable or inconsistent with the certified unit. Accordingly, we find that such ap- propriate unit, as interpreted in the contract, does not cover employees engaged in the preparation of the Army work report, the commercial daily work- ing report, the daily receiving report, and other spe- cial reports which Phillips prepared prior to the ex- ecution of the contract. We therefore find, in ac- cordance with our discussion and findings in the companion case, James J. Flanagan Stevedores, supra, that Respondent did not violate Section 8(a)(3) and (1) of the Act by failing, after the execu- tion of the contract, to call Bienvenu and Phillips through the union hiring hall to prepare the special reports which they had prepared prior to the execu- tion of the contract. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, James J: Flanagan Stevedores, Beaumont, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Delete from paragraph 2(b) of the Trial Ex- aminer's Recommended Order that part thereof which reads "to be furnished" and substitute therefor "on forms provided..." 2. Delete from the second paragraph of the Notice the words "in any manner" and subsitute therefor the words "in any like or related manner." IT IS FURTHER ORDERED that the instant com- plaint be, and it hereby is, dismissed to the extent that it alleges violations not found herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM J . BROWN, Trial Examiner : This proceeding under Section 10(b) of the National Labor Relations Act, as amended , hereinafter the Act, came on to be heard be- fore the Trial Examiner at Port Arthur , Texas, on Sep- tember 15, 1966 . The underlying charges of unfair labor practices had been filed on January 20 and 27, 1966, and duly served on the above -indicated Respondent. The complaint herein was issued June 15, 1966 . It alleged, in addition to jurisdictional matter , that the above-indicated Respondent (hereinafter sometimes the Company) dis- criminated against the above-indicated Charging Parties with respectt to hire, tenure , or terms and conditions of employment because the Charging Parties engaged in concerted activities on behalf of International Longshoremen's Association , Local 1924, AFL-CIO, hereinafter referred to as the Union. The Company's duly filed answer denies the commission of the unfair labor practices and affirmatively alleges that matters embraced in the complaint were adjudicated both by arbitration and prior Board proceedings , were settled in collective bar- gaining, or were otherwise disposed of by the parties. At the hearing the parties appeared and participated as noted above with full opportunity to present evidence and argument on the issues . Subsequent to the hearing briefs were received from the General Counsel and Respondent and they have been fully considered. On the entire record herein , including my observation of the witnesses, and on evaluation of the oral and written argument submitted, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT EMPLOYER It appears from the pleadings and evidence herein and I find that the Company is a corporation organized under the laws of the State of Texas with its principal office at Port Arthur, and is engaged in stevedoring operations at Beaumont, Orange, and Port Arthur, Texas. During the 12-month period preceding issuance of the complaint, a representative period, the Company received in excess of $50,000 for stevedoring services from Texas firms which firms sold goods or performed services valued in excess of $50,000 for customers outside Texas. I find, as the Company concedes, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings and evidence establish and I find that the Union is a labor organization within the purview of Sec- tion 2 (5) of the Act. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iii. THE UNFAIR LABOR PRACTICES A. Introduction and Summary of Events This case concerns events at the Company's Beaumont stevedoring operations. It appears that longshoremen em- ployed by the Company have at all material times been represented by Local 341 of the I.L.A. Organization of clerks and checkers in the port of Beaumont commenced sometime about May 1965' and on June 10 a stipulation for certification upon consent election was executed; an election was held on June 29 which the Union won. Bien- venu and Phillips voted in the election. Phillips appears to have been active in support of the Union from its in- ception at Beaumont since his testimony reveals that he was its business agent from that time until his discharge on December 8, 1965. Bienvenu appears to have initially refrained from support of the Union because of doubts of his eligibility for participation in the election and/or mem- bership in the Union, but the evidence indicates that by the time of execution of a collective-bargaining agreement between the Company and the Union he was secretary- treasurer of the Local Union. On November 16, as a result of proceedings in Case 23-UC-10 timekeepers were removed from the clerks and checkers unit; about the same time negotiations broke down for a short period during which Bienvenu worked behind the picket lines as a special consideration for the Army vessels loading or unloading. Soon thereafter, apparently about November 19, the contract was signed effective as of November 1. On November 23 the Company delivered to Bienvenu and Phillips written notices terminating their employment as weekly/monthly employees effective as of December 8 At the same time the Company reassigned to supervisory and office per- sonnel duties theretofore performed by Phillips and Bien- venu. The complaint alleges and the Company denies that the Company's failure to employ Bienvenu and Phillips after December 8, 1965, to prepare certain stevedoring reports theretofore prepared by them, as well as the Company's failure to pay Bienvenu for 2 days worked (November 17 and 18, 1965) and to pay both their share of the Com- pany's profit-sharing plan were unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. The Company denies this and also relies on arbitration awards of May 27, 1966, and June 13, 1966, and the proceeding in 23-UC-10. It contends no profit-sharing moneys are due Phillips and that tender was made to Bienvenu of amounts due him. The General Counsel's brief has emphasized union animus on the part of the Company and its higher offici- als.2 I agree with General Counsel that the evidence abundantly establishes such union animus; thus I credit the testimony of Bienvenu, undenied by company wit- nesses, that in the period immediately prior to the election company officials Bourne, Jordon, and James and Rose I Dates hereinafter, except where otherwise indicated, relate to the year 1965 2 The supervisory status of the following company officials is established by the pleadings James Flanagan , president, Al Bourne, vice president, Rose Flanagan , secretary-treasurer , Irwin Jordon, superintendent 3 These are not alleged as instances or interference, restraint, or coer- cion within the scope of Section 8(a)(I) of the Act The record does not in- dicate whether or not there were objections to conduct affecting the results of the election Flanagan, all admitted supervisors, engaged in extensive acts of interrogation of Bienvenu and threats of the ad- verse consequences of union organization of the clerks and checkers culminating with the statement of Bourne on the day before the election that if the Union won the Company would not keep regular employees but would hire from the union hal1.3 This latter statement can be seen as prophetic of the position the Company would take in the bargaining sessions but is not in itself sufficient to establish unlawful discrimination against Bienvenu and Phillips particularly in view of the testimony which I credit that this matter was fully explored between the parties in the bargaining. B. Robert Alvin Bienvenu, Jr. Bienvenu's employment with the Company com- menced August 21, 1958, when he was hired to work, ap- parently as a clerk, in the port of Beaumont. In December, 1960 he was transfered to the port of Orange as a supervisor in charge of the unloading of boxcars, making daily reports of such unloading, checking cargo, and making a daily receiving report. The uncontradicted testimony of James Flanagan, Jr., Respondent's pre- sident, is that Bienvenu had authority to hire and fire em- ployees while stationed at Orange. Sometime in the spring of 1965 the Company secured an Army contract for loading Army vessels at the port of Beaumont and recalled Bienvenu to Beaumont. The evidence is clear that on reporting back to Beaumont he was paid at the supervisory rate of $4.07 straight time, $6.011/2 overtime, with a guarantee of $2.53 per hour when there were no vessels to handle. There is a conflict, however, as to whether or not he was a supervisor within the meaning of Section 2(11) of the Act. James Flanagan testified that Bienvenu was brought to Beaumont as assistant to Superintendent Irwin Jordon and that in that capacity he was required to clerk some vessels, prepare logs and the Army working reports4 and serve as a walk- ing foreman on board some vessels; thus, as Flanagan put it Bienvenu was, in his view, required to perform both su- pervisory and nonsupervisory tasks Bienvenu testified, however, that on his return to Beau- mont in May 1965 his primary job was to prepare the Army work report and to help in clerking of ships if the regular clerk, Phillips, was overburdened. He also testified and I credit his account, that from May 3, to December 7, he prepared all such reports and that the work took 90 percent of his time. It is undisputed that Bienvenu voted without chal- lenge in the Board-conducted election on June 29, 1965, having been included in the list of eligibles in the stipula- tion signed June 10, Flanagan's explanation being that since Bienvenu had clerked some 6 to 10 vessels he con- sidered him eligible. Bienvenu's testimony is that Com- pany Vice President A.E. Bourne told him that James Flanagan had gone to considerable trouble to get him on 4 These appear to be three different reports, in evidence as G C Exhs 7, 8, and 9 recapitulating work done loading Army vessels with break- downs by nature and location of work, types of employees and foremen, and straight as against overtime rates These reports are not required under the Company's contract with the Army but are furnished by separate agreement with Fred Andreason, civilian in charge of the work for the Army Some but not all of the reports in evidence are signed by Bob Bienvenu "Stevedores Superintendent" a title which I find of no sub- stantial, much less controlling, significance in determining Bienvenu's status JAMES J . FLANAGAN STEVEDORES 65 the eligibility list because the Company felt confident of his vote.5 Appraising the evidence before me in its totality I find that it clearly preponderates in favor of the conclusion that Bienvenu was, in the period from his return to Beau- mont on May 3 until his release from employment as a regular employee on December 8, an employee, not a su- pervisor. The evidence also establishes that in that period Bienvenu spent virtually all his time on the preparation of the Army work report and that no one else worked on the preparation of that report. 1. Failure to pay for November 17 and 18, 1965 In point of view of time, the first alleged discrimination against Bienvenu appears to that relating to failure and refusal of the Company to pay him for 2 days worked, November 17 and 18, 1965, the Company has denied any refusal to pay for such dates. Bienvenu testified, and his testimony is not contradicted, that about November 15 negotiations between Local 1924 and the Company had come to a halt and a picket line was set up at Beaumont and the other ports. It appears, however, that the Army made arrangements for the loading of their vessels, that they were loaded and that on November 17 and 18, Bien- venu prepared the Army work reports on the vessels in- volved. He included the time in his timesheet but the days were deducted when he received his pay. Bienvenu testified that he questioned Rose Flanagan, company secretary-treasurer, about this and that she replied that he should not have been working since the Union had called a strike. Bienvenu further testified that when he was in- formed he would not be paid for the 2 days in question he threatened to withhold the Army work reports for the days in question and was finally persuaded by Company Vice President Bourne to release the reports. The evidence indicates that Bienvenu had not been paid for the 2 days in question as of the time of the hearing in this case. General Counsel's brief alludes briefly to this matter, does not list it as an issue , yet does list it in the demand for relief. The question is whether or not by refusing to pay Bienvenu for work performed during the period the Union, which represented him and in which he was an of- ficer, was striking and picketing his place of work, the Company discriminated against him and thereby en- couraged or discouraged membership in the Union. This issue does not appear to have been submitted to arbitra- tion. On the record before the only reasonable inference to be made from the remarks of Rose Flanagan is that the pay was withheld either because union members had been engaged in the protected activity of striking or because Bienvenu presumably from patriotic considerations, had engaged in the protected activity of refraining from strik- ing. The effect of her actions could reasonably be said to encourage or discourage activity on behalf of the Union. I find and conclude that the Company, as alleged in the complaint, discriminated in pay against Bienvenu either because his fellow union members were engaged in con- certed activities or because he was not and that the Com- pany thereby engaged in unfair labor practices within the purview of Section 8(a)(3) and (1) of the Act. 2. Refusal to pay vested interest in profit-sharing plan The complaint alleges that the Company had dis- criminated against Bienvenu on account of his activity on behalf of the Union by refusing to pay him his vested in- terest in the Company's profit-sharing plan. The Com- pany has denied these allegations and affirmatively has al- leged that, pursuant to arrangements made with a representative of the Board's Regional Office it computed the amount of Bienvenu's vested interest and tendered payment of such amount which Bienvenu refused to ac- cept. General Counsel's brief asserts that there is no evidence in the record as to the amount of Bienvenu's in- terest. Bienvenu testified that he was informed by Rose Flanagan and by the company accountant, Landry, that he had lost his vested interest in the profit-sharing plan by choosing to go with the Union. His testimony is undenied and I credit it. Thus what might have been a simple matter of contract liability is seen also to be an unfair labor practice inasmuch as the denial of an emolument of employment has been based on union activity. The Com- pany has adduced evidence establishing that it computed Bienvenu's vested interest and submitted to the Board's Regional Office a check payable to Bienvenu; it appears however that it did not submit the basis on which its cal- culation of the amount could be checked. In the instant case the profit plan is in evidence and the Company has asserted a willingness to pay Bienvenu $540.87 which it contends is the amount due him. - I find that the Company refused Bienvenu his share of the profit-sharing plan in reprisal for his union activity and I shall recommend it cease and desist from said con- duct and make appropriate payments to Bienvenu. 3. Refusal to hire Bienvenu to prepare Army work re- port As noted above Bienvenu spent by far the greater por- tion of his working time in the preparation of the Army work report in the period from his return to the port of Beaumont on May 3, 1965, until his termination as a regular weekly/monthly clerk on December 8. As noted above the Army work report is not required by virtue of the contract between the Company and the Army but has been furnished the Army by virtue of a side agreement with the Army's chief civilian officer at the port of Beau- mont. The report in question appears to be something dif- ferent from a mere timekeeper's tally of time worked by individuals and to be rather a report of all labor activity broken down by location, type of work and type of wor- kers, in accordance with this anaylsis of the Army work report I cannot regard the work involved in its prepara- tion as having been in any way affected by proceedings in Case 23-UC-10 which excluded timekeepers from the unit represented by the Union. James Flanagan testified that throughout the negotia- tion of the agreement with the Union he and other em- ployer representatives informed the union negotiators that the Companies would not employ monthly clerks and checkers but would call from the union hiring hall as needed and on an hourly basis. Union Representatives Williams and Barnes, testified that there were no negotia- 5 There is no indication of activity for the Union on Bienvenu 's part at any time prior to his becoming secretary-treasurer He worked behind union picket lines on November l7 and 18, and there is no indication of company knowledge of his support of the Union prior to his signing the union contract 66 DECISIONS OF NATIONAL tions regarding reports or logs. The agreement in evidence as Respondent's Exhibit 1, establishes a rate for monthly wharf clerk and provides in the "Scope" clause that the employers had discretion as to number of men to be carried on monthly payroll subject to a 15-day notice of variations. Flanagan testified that subsequent to the December 8 release of Bienvenu as a monthly salaried clerk he often called the union hall asking for Bienvenu and that on one occasion after Bienvenu reported he left at mid-day without notice. It appears however that any time Bien- venu was called he was most probably not working on the Army work report since Flanagan testified that that work was reassigned to some other group of workers. The issue as to whether or not by reassigning the Army work report preparation to office personnel, the Com- pany violated the terms of the colle-etive-bargaining agreement was the subject of arbitration proceeding and on May 27, 1966 , the permanent arbitrator provided for in the agreement ruled the Company had not taken away from the Union the work of preparing the Army work re- port in violation of the agreement. The General Counsel asserts that the arbitration proceedings were introduced by the Company solely to becloud the issues herein and that the arbitration results are repugnant to the policies of the Act. It is not contended that they were not fair and regular on their face. I credit Flanagan's testimony that throughout the bar- gaining sessions preceding the execution of-t-he agreement he advised the union representatives that he would no longer employ monthly clerks and checkers and would remove the work of preparing the Army work report from the unit of which Bienvenu was a member. The blunt fact of the matter appears to be that the Em- ployer as a consequence of union organization of his clerks and checkers determined to discharge Bienvenu as a weekly/monthly employee, use other office personnel to prepare the Army work report, and to call the union hall for extra help on that work only when the existing of- fice staff was unable to cope with the volume of work. The evidence adduced to indicate discrimination is con- siderably cloudy, an element which necessarily redounds to benefit the Respondent, and I can see no reasonable basis for concluding that (1) it preponderates in favor of the conclusion that the Company's reassignment on December 8, 1965, of work performed theretofore on a regular weekly/monthly basis by Bienvenu in preparing the Army work report, constituted discrimination against him because he engaged in union activity or (2) that the is- sues related to Bievenu's termination as a permanent em- ployee were not fairly adjudicated in the arbitration proceedings above referred to. I shall accordingly recom- mend dismissal of the allegations of the complaint in this regard. The changes in operations which resulted in Bien- venu's discharge appear to have been both fully explored in the bargaining sessions and subsequently adjudicated in the arbitration proceedings.6 B This arbitration proceeding culimmated in an award on May 27, 1966 (Resp Exh 3) denying the union grievance that the Company violated the contract by taking away from the bargaining unit the work, once done by Bienvenu, of making the Army work report 'while the arbitrator proceeds on the theory that Bienvenu had been a supervisor at all material times, a holding with which I disagree, yet the award stands as that of the form LABOR RELATIONS BOARD C. James E. Phillips James Phillips was initially employed by the Company November 1, 1960, as a salaried wharf clerk. From that date up until his termination as a weekly salaried clerk on December 8 his duties were according to his testimony which I credit (1) to make physical check of all cargo un- loaded in warehouses for commercial ships for which the Company was agent and to prepare reports thereon (G.C. Exh. 12 A-C, the "Daily Receiving Report"), (2) to prepare a "Daily Working Report" (G.C. Exh. 3) for extra labor, downtime and related items chargeable against the particular commercial vessel for the account of Flanagan and (3) to prepare extra labor bills (G.C. Exh.4) and secure approval of the commercial vessel's chief officer thereon. As noted above Phillips was the business agent for the Union from its initial organizing drive at the Company until his termination as a salaried clerk on December 8, 1965. Together with Bienvenu and others he participated in a wildcat strike sometime in January 1966 and was en- joined by a State court from certain activities in connec- tion therewith. 1. Refusal to pay vested interest in profit-sharing plan The complaint alleges that the Company since December 8, 1965, has discriminatorily refused to pay Phillips his vested interest in the Company's profit-shar- ing plan. The Company denies any discriminatory treat- ment and asserts that Phillips had no vested interest in the plan and that nothing is due him. Unlike the situation respecting Bienvenu where the un- contradicted and credited testimony of Bienvenu establishes discrimination in the refusal to pay his share due from the profit-sharing plan there is no indication that any amount, assuming there is something owing to Philips, was withheld in reprisal for union activities. In the circumstances it would be improper for me to as- sume the task of interpreting the complicated details of the plan and making an adjudication as to whether any amount, and if so, how much, was due Phillips since that would involve an adjudication of private rights. I recom- mend dismissal of the allegations regarding discrimination against Phillips in this area and refrain from adjudicating whether or not the provisions of the plan entitle him to anything under the terms thereof. 2. Discriminatory refusal to hire Phillips to prepare re- ports James Flanagan testified that in the negotiations lead- ing to consummation of the collective-bargaining agree- ment the Company's representative informed the union negotiators that when the agreement became effective they would no longer employ monthly salaried clerks' but would call clerks from the union hiring hall as needed to selected by the parties and it cannot be said to be repugnant to the policies of the Act in its result ' It is noted that the agreement establishes in paragraph 3(A) a rate for monthly wharf clerk but paragraph I (B) appears to give the employers the option to use or not use monthly clerks subject to a I5-day notice of change in the event any are employed JAMES J. FLANAGAN STEVEDORES supplement the regular Company office personnel. While Williams and Barnes testified that there were no discus- sions involving the daily receiving report, extra'labor re- ports or similar logs, I credit Flanagan's testimony in this matter. The General Counsel's argument is that inasmuch as Phillips performed the work of preparing the aforemen- tioned reports throughout the entire course of his employ- ment until December 8, 1965, and thereafter was not called on to perform those services, there can be only one conclusion drawn: that the work performed by Phillips was arbitrarily and unilaterally taken from the bargaining unit and given to other employees of Respondent in reprisal for Phillips' membership in and activities on be- half of the Union. I cannot see that this conclusion neces- sarily follows and, as noted above, I credit the testimony of James Flanagan that the matter of elimination of the monthly salaried clerk was fully discussed in the bargain- ing negotiations. Furthermore any suspicion of animus against Phillips is dissipated by Flanagan's testimony, which I credit, that he has always called the union hall for wharf clerks and has often called for Phillips. In fact, Phillips conceded that he had worked for Flanagan every time they have a ship and has worked 90 percent of his worktime since sign- ing of the contract for Flanagan. The situation as to Phil- lips appears on the evidence in the case to be that any change in Phillips' situation resulted from positions taken and fully explored in the bargaining negotiations, per- missible under the specific terms of the agreement, and completely without union animus directed against Phil- lips. I recommend dismissal of the allegation of the com- plaint in this regard. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the company operations described in section I, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY In view of the findings set forth above to the effect that the Company has engaged in certain unfair labor prac- tices affecting commerce I shall recommend that it belre- quired to cease and desist therefrom and take such affirm- ative action as appears necessary and appropriate to ef- fectuate the policies of the Act. In view of the findings that the Company has discriminatorily withheld from Robert Alvin Bienvenu moneys due him for 2 days' work in November 1965 together with moneys due him from the company profit-sharing plan, I shall recommend that the Company be required to make payment of these moneys with interest thereon at the rate of 6 percent per annum, computed in accordance with the rule established in Isis Plumbing & Heating Co., 138 NLRB 716. I shall recommend the posting of an appropriate notice. 8 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 67 On the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent Company is-an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By withholding moneys due Robert Alvin Bienvenu for labor performed and for his vested share in the Com- pany's profit-sharing plan because of his relationship to concerted activities by or on behalf of the Union, the Company has engaged in unfair labor practices within the scope of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The Company has not, except as set forth above, engaged in unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case it is recommended that Respondent Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union or any other labor organization of its employees by withholding from or refusing to pay employees or ex-employees when properly due them moneys owed said employees as wages or interests in the company profit-sharing plan. (b) In any like or related manner interfering with, restraining, or coercing employees in the excerise of their rights to self-organization, to form, join, or assist the Union or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid and protection. 2. Take the following affirmative action which appears necessary and appropriate to effectuate the policies of the Act: (a) Pay Robert Alvin Bienvenu moneys due on ac- count of 2 days' work performed on or about November 17 and 18, 1965, for which he has not been paid, and on account of his vested interest in the,Company's profit- sharing plan together with interest on the moneys due as provided above in the section entitled "The Remedy." (b) Post at its offices in Beaumont and Port Arthur and transmit to the Union for posting in its hall if it be willing so to post, copies of the attached notice marked "Appen- dix."8 Copies of said notice, to be furnished by the Re- gional Director for Region 23, after being duly signed by Respondent's authorized officer, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 336-845 0 - 70 - 6 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.9 IT IS FURTHER RECOMMENDED that the allegations of the complaint not herein specifically found to have been sustained be dismissed. 9 In 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 Re- spondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES WE WILL NOT in any manner interfere with, restrain, or coerce employees in the excerise of their rights under the National Labor Relations Act, as amended. WE WILL pay Robert Alvin Bienvenu wages due for work performed on November 17 and 18, 1965, or thereabouts, for which he has not yet been paid, and also pay him the amount due him as his vested share of the Company's profit-sharing plan together with interest in the foregoing amounts. All our employees are free to become or remain mem- bers of the above-named or any other labor organization. Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT discourage membership in Interna- tional Longshoremen's Association, Local No. 1924, or any other labor organization by withholding, when due , wages, salaries , or amounts due under our profit-sharing plan or in any other way discriminating against them with respect to hire, tenure or any term or condition of employment. Dated By JAMES J . FLANAGAN STEVEDORES (Employer) (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 228-4296 Extension 4721.