Intl. Longshoremen's Union, Local No. 13

INTL. LONGSHOREMEN'S UNION, LOCAL NO. 13 International Longshoremen's and Warehousemen's Union, Local No. 13 and Henry A. Gatlin and James Phillips and Pacific Maritime Association, Intervenor. Cases 21-CB-3296 and 21-CB-3326 June 10, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN , AND JENKINS On October 29, 1969, Trial Examiner Richard D. Taplitz issued his Decision in the above-entitled proceeding, finding that the Respondent Union had engaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci= Sion . Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Intervenor filed a brief in. support of the decision. 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 proceeding 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, the briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions,' and recommendations except insofar as they are incon- sistent herewith. THE REMEDY The Trial Examiner recommended that Respond- ent be ordered to bargain on request with the In- tervenor as to the number of applicants to be re- gistered as class B longshoremen. He also recom- mended that Respondent cease and desist from causing or attempting to cause warehousemen to be given preferential hiring treatment. In the circum- stances of this case, we do not agree that either of these remedies is necessary or appropriate at this time . There is no allegation in the complaint that Respondent has unlawfully refused to bargain nor can it be said that the issue was fully litigated at the ' Member Fanning joins in the finding of a violation herein solely on the ground that the Union's unlawful conduct was related to union considera- tions, more specifically, the Union's practice in requiring applicants for class B registration to be sponsored by class A union members discnmma- tonly precluded a class of employees-those unable to obtain such spon- sorship-from receiving employment through the Union 's exclusive hiring hall by the imposition of a union-onented criterion . See opinions of Chair- 221 hearing. Moreover, we believe that part of the Recommended Order requiring Respondent to cease and desist from requiring sponsorship, which we shall adopt, effectively removes what has been an impediment to the solution of the registration problem between the parties. With regard to the preferential hiring of warehousemen, we again note the absence of a complaint allegation in this respect. Some evidence on the record tends to show that under certain circumstances warehousemen members of the Union are referred to longshore jobs prior to casual longshoremen. There is no probative evidence, however, that the preferential referral of warehousemen is directly re- lated to the Union's unlawful sponsorship program. But we are not blind to the possibility of the utiliza- tion of various means to effectively preserve the practice of sponsorship herein declared unlawful. In view of this, we will frame an order broadly proscribing any attempts to perpetuate this prac- tice. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, International Longshoremen's and Ware- housemen's Union, Local No. 13, Los Angeles, California, its officers, agents, and represent- atives, shall: 1. Cease and desist from: (a) Requiring that applicants for class B registra- tion status with the hiring hall run by the Joint Port Labor Relations Committee be sponsored by longshoremen with class A registration status or by members of said Union. (b) In any other manner attempting to perpetu- ate the practice of sponsorship by members as a condition of eligibility for referral to longshore- men's work. 2. Take the following affirmative action to effec- tuate the policies of the Act. (a) Notify Pacific Maritime Association that it will no longer insist upon sponsorship as a condi- tion for registration as a class B longshoreman. (b) Post at its offices and meeting halls and at the hiring halls operated by the Joint Port Labor Relations Committee copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Director for Region man McCulloch and Member Fanning in Hughes Tool Company, 147 NLRB 1573; Miranda Fuel Co., Inc., 140 NLRB 181 Y In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 183 NLRB No. 28 222 DECISIONS OF NATIONAL 21, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to members 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. (c) Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this nonce. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all of these things. WE WILL NOT do anything that restrains or coerces employees with respect to these rights. More specifically, WE WILL NOT require that applicants for class B registration status with the hiring hall run by the Joint Port Labor Relations Commit- tee be sponsored by longshoremen with class A registration status or by members of Interna- tional Longshoremen's and Warehousemen's Union, Local No. 13. WE WILL NOT attempt to perpetuate in any manner the practice of sponsorship by mem- bers of International Longshoremen's and Warehousemen's Union, Local No. 13, as a LABOR RELATIONS BOARD condition of eligibility for referral to longshoremen's work. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN 'S UNION, LOCAL No. 13 (Labor Organization) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California, 90014, Telephone 213-688-5200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ,Trial Examiner: This case was tried at Los Angeles, California, on August 21 and 22, 1969.' The issues litigated were framed by a complaint dated May 16, as amended at the hear- ing, alleging violations of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, and an answer dated June 6, as amended at the hearing, filed by International Longshore- man's and Warehousemen's Union, Local No. 13, herein called Respondent, which admits some and denies other factual allegations of the complaint but denies that Respondent violated the Act. The complaint was based on a charge and amended charge filed by Henry A. Gatlin on January 27 and March 18 in Case 21-CB-3296, and a charge and amended charge filed by James Phillips on March 3 and 18 in Case 21-CB-3326. These cases were consolidated with the issuance of complaint. All parties appeared at the hearing and were given full opportunity to participate, to adduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, Respondent, and the Pacific Maritime Association, who intervened at the com- mencement of the hearing. ' All dates are in 1969 unless otherwise specified INTL. LONGSHOREMEN 'S UNION, LOCAL NO. 13 223 ISSUES 1. Whether Respondent requires that in order to receive class B registration, which is a preferred hiring status as a longshoreman, an applicant be sponsored by a class A registrant or a member of Respondent. 2. If the answer to number 1 is in the affirmative, whether such a requirement violates Section 8(b)(1)(A) and (2) of the Act. Upon the entire record2 of the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE ASSOCIATION Pacific Maritime Association, herein called the Association, is a California Corporation with offices and places of business in Wilmington and San Fran- cisco, California. It is the collective-bargaining representative on a multiemployer basis for various employers engaged in longshore and stevedoring operations in the vicinity of Long Beach and Los Angeles, California, harbors, herein called the Los Angeles harbor area. In this capacity, the Associa- tion bargains with the International Longshore- men's and Warehousemen's Union, herein called the International, which is the parent of Respond- ent and acts on behalf of itself and its locals. The employer-members of the Association annually per- form services valued in excess of $50,000 in the transportation of goods and passengers between the State of California and other States and foreign countries. The complaint alleges , the answer admits, and I find that the Association and its employer-members are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges , the answer admits, and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting With Regard to Job Referrals The Association, on behalf of its employer-mem- bers, and the International of its Longshore Locals, including Respondent, aie signatories to an out- standing collective-bargaining contract known as the Pacific Coast Longshore Contract Document 1966-71. The contract establishes various joint committees consisting of representatives of the em- ployer-membes of the Association and the Interna- tional and locals. One of these committees, the Joint Coast Labor Relations Committee, herein called the Coast Committee, has coastwide jurisic- tior to consider the issues that are presented to it under the contract. The coast Committee has specific power to review decisions relative to the operation of dispatching halls. The contract also establishes a separate committee known as the Joint Port Labor Relations Committee for each port affected by the contract. The Port committees, in which the representatives of Respondent and of the Association have equal voting power, are given control of longshoremen registration lists of the Fort. A port committee, subject to ultimate control of the coast committee, has the power to make ad- ditions to or subtractions from the registered lists as is necessary and is required to maintain a list of longshoremen showing their registration status. The contract also provides that the dispatching of longshoremen shall be through the halls maintained by the port committees and that longshoremen who are not on a registered list shall not be dispatched from the hall or employed by any employer when there is a man on the registered list who is available for work. The contract further provides that first preference in dispatch and employment shall be given to fully registered longshoremen (known as class A registrants), and that a second preference shall be given to limited registered longshoremen (known as class B registrants ). If all available class A and class B registrants are referred, then other longshoremen (known as casuals) can be dispatched. The dispatchers in the hall are, pur- suant to the contract, selected by the Union through elections. As is required in the contract, the Association and Respondent do maintain a joint port labor rela- tions committee for the Los Angeles harbor area. This committee, herein called the Port Committee, maintains a central dispatching hall for the referral of longshoremen who are class A and class B regis- trants at 343 Broad Avenue, Wilmington, Califor- nia. At this dispatch hall, class A registrants are referred first, class B registrants are dispatched second, and warehousemen (where there is no warehouse work available for them) are dispatched third. When there are more jobs than can filled by the available class A and class B registrants and warehousemen, referrals of casual longshoremen are made from a "casual hall" at a different loca- tion. The casuals are extra longshoremen who have no priority in referrals. These findings are based on the uncontested testimony of Frank P. Aguilar, chief dispatcher for the referral hall. Aguilar also credibly testified without contradiction that the warehousemen are members of Respondent who, when there is r The record discloses a great number of errors in transcription Flow- resolution of the issues in this case, no action is taken with regard to the ever, in the absence of a motion to correct the record and based on my transcript opinion that the errors are either self-correcting because of their context or Respondent in its brief states that G. C Exh I I was not received in that they occur with regard to matters which are not necessary for the evidence As indicated at p 214 , 11 22-23, that assertion is in error 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warehouse work available for them, work for em- ployers who are not covered by the contract between the Association and the Respondent. The warehousemen are both commercial and terminal warehousemen. They have a union number that begins with TW. Warehousemen do "stuffing and stripping" (loading and unloading) of vans and con- tainers. However, Aguilar's testimony became con- fused with regard to the source of his authority to refer warehousemen for longshore work after "B" registrants and before casuals . At one point he testified that "A" and "B" registrants were dispatched pursuant to joint order but that warehousemen were dispatched on "unilateral" authority; that is, from orders that go back to the International, down to Respondent, and then to the hall. At another point he testified that he had a directive from the Coast Committee to refer the warehousemen. In any event there appears to be no provision in the contract for the referral of warehousemen. B. Sponsorship 1. Those qualified to sponsor The sponsorship arrangement in effect in 1965 was accurately described in a notice that was posted in Respondent's hall at that time.3 It read in part: NOTICE RE SPONSORING APPLICANTS FOR LIMITED (CLASS "B") REGISTRATION LONGSHOREMEN Over the past years, men who obtained full (Class "A") registration in Los Angeles-Long Beach prior to March 8, 1951, and who had such status on March 8, 1951, have had the opportunity to sponsor a man for limited (Class "B") registration as longmen in this port at times when additional men were being re- gistered . The conditions for eligibility of the sponsor were as follows: 1. Persons eligible to sponsor are those who were fully registered longshoremen in the Port of Los Angeles-Long Beach on March 8, 1951, and who at the time of sponsorship (a) are re- gistered as longshoremen or clerks or walking bosses (including those on leave of absence or on military leave), or (b) are retired on an ILWU-PMA pension from such employment. 2. Such persons have the privilege of spon- soring one otherwise successful applicant for limited (Class "B") registration after March 8, 1951. 3. Anyone who has so sponsored previously has exhausted his sponsorship privileges under the sponsorship program; he cannot sponsor any applicant at any subsequent time. He has lost his privileges if he has sponsored an appli- cant for limited (Class "B") registration who was registered on the basis of his sponsorship, even if the man so registered has since died, been deregistered for any reason, left the in- dustry, etc. 4. Any person entitled to sponsor an appli- cant has not lost this privilege if he has spon- sored an applicant for limited (Class "B") re- gistration who was not registered (such as a man rejected by the Committee), or if he has sponsored only for full (Class "A") registra- tion. The Joint Coast Labor Relations Committee wishes to determine which men would still be eligible to sponsor a man for registration under the above rules. This is to give notice that no man shall hereafter have any opportuntiy to sponsor a man for longshore registration unless he files a request to sponsor on or before July 1, 1965. Request shall be considered only if submitted by someone eligible under the above rules and only if it is on the form that is prescribed and is filed in triplicate within the time limit set forth above. 2. The meetings and the arbitration As indicated in the minutes of the meeting of the Port Committee dated March 3, 1966, the commit- tee agreed that there were 331 longshoremen with unused valid sponsorship privileges. The committee also agreed to accept applications for class B regis- tration. On June 15, 1967, at a meeting of the Port Com- mittee, Respondent rejected an association proposal that the Association pick 150 applicants for class B registration, the Respondent pick 150 applicants, and that it be narrowed down between them to 200. At that meeting, Jerry Plante, who was then president of Respondent, stated that Respondent would consider applicants only on the basis of the San Pedro formula. Plante was asked what he meant by the San Pedro formula and Plante answered that it was sponsorship.4 As indicated in the minutes of the meeting of the Coast Committee, dated January 11, 1968, the use of sponsorship as a criteria in considering applica- tions for class B registration in any port was out- lawed by the Coast Committee on November 23, 1965. The minutes further indicate that the Port Committee was instructed by the Coast Committee to proceed with registration of class B longshoremen under the applicable rules. J This finding is based on the admission of Curt Johnston, president of Respondent Though Respondent did not call any witnesses and rested on the close of the General Counsel's case, Johnston did testify pursuant to Rule 43 ( b) of the Federal Rules of Civil Procedure when called as a witness by the General Counsel ' These findings are based on the uncontradicted testimony of Robert R McLean, labor relations administrator for the Port Committee INTL. LONGSHOREMEN 'S UNION , LOCAL NO. 13 225 Walter A. Niemand was a member of the As- sociation's labor relations department in 1968. He prepared the Association's list of proposed class B registrants. The Association reviewed the applica- tions of 1,036 persons and used an eligibility system based on such items as work and educational background. The Association narrowed down the list to 475 men. Niemand was present at a meeting of the Port Committee on February 2, 1968. He credibly testified the following incidents took place. President Jerry Plante, Secretary-Treasurer Jack Godfrey, Business Agent Bill Rivera, and Pete Velasque, whose position with the Respondent, if any, was unknown, were all spokesmen for Re- spondent. A Mr. MacEvoy, who was an area man- ager of the Association, said that it was his under- standing that the Respondent's membership had voted reuse of sponsorship. One of the four spokes- men for Respondent answered that that was the position of the members and spoke of the San Pedro formula involving sponsorship. MacEvoy said the Association would be unable to go along. Another one of the spokesmen for Respondent said that the union advisory committee would only be allowed to submit names of those men who had a sponsor and they could not entertain individuals other than those. Respondent President Plante said that Respondent felt that sponsorship was legal and could be used in the selection of registrants. The dispute as to the registration of additional class B longshoremen was presented to Arbitrator George Love who on March 10, 1968, issued a decision which in part found that Respondent was trying to use sponsorship as a requirement in the joint registration process and that such use of spon- sorship constituted a violation of the contract. The arbitrator went on to order the Port Committee to register 400 class B longshoremen without the use of sponsorship. The order called for the immediate registration of 60 applicants who had been mutually agreed to in a special meeting of the Port Commit- tee in 1967, the interview of 186 applicants who appeared on both the Association's and Respond- ent's lists, and the processing of an additional group to total 400 class B longshoremen without resorting to any unilateral selection (sponsorship). At a meeting of the Port Committee on October 2, 1968, Respondent submitted to the Association a list of 254 names with the demand that the persons named on the list be immediately registered as class B longshoremen.' Next to each name on the list was the name of a sponsor. All of the sponsors were members of Respondent. Respondent admitted in its amended answer that all class A registrants are members of Respondent. Although Respondent S Respondent argued at the hearing that the agency of Velasque had not been established and that the specific spokesman for Respondent had not been identified for each statement made In the circumstances of these conversations , I find that statements made by any of the four spokesmen for Respondent were binding on Respondent The president of the Union, as well as two other officials, were present at the meeting and they in effect ratified any statements that Velasque may have made by not ques- President Johnston testified that anyone can recom- mend an applicant, he later admitted that in 1966 the only persons who could make recommendations were members of Respondent and that there had been no change since . I credit the admission. Johnston further testified that the 1951 cutoff date in the sponsorship system was used because many Negros had become members of Respondent during the years I94h through 1951 and Respond- ent wanted them to have the same rights as other groups. However, a comparison of the list of per- sons eligible to sponsor as set forth in the minutes of the Port Committee meeting of March 3, 1966, with the names of the sponsors and applicants ac- tually presented by Respondent to the Association on October 2, 1968, sheds much doubt of John- ston's credibility. Of the 254 names of sponsors contained in Respondent's list of proposed regis- trants, only approximately 75 of the sponsors ap- peared on the list of those who were eligible to sponsor. Thus it appears that Respondent is at- tempting to use a much broader system of sponsor- ship than would be indicated by eligibility standards set up by Respondent. As reflected in the minutes of the meeting of the Port Committee dated October 9, 1968, on that date the Association proposed that the committee abide by the Coast Committee's minutes and the ar- bitrator's award and , register 400 class B longshoremen without regard to sponsorship. The Respondent took the proposal under advisement. Since that time there has been no registration of class B longshoremen. Respondent President Johnston testified without contradiction that Respondent and the Association had discussed the registration of 400 additional class B longshoremen if a container freight agree- ment was reached, but such an agreement had not been arrived at. The container agreement was to deal with the stuffing and stripping of packing and unpacking of containers. 3. The application of James Phillips James Phillips was a casual longshoreman who filled out an application for class B registration in June 1967. On February 20, 1969, he had a conver- sation with Respondent Secretary-Treasurer John Godfrey about that application. Arthur Miller, another casual longshoreman, was also present. Miller started the conversation by telling Godfrey that he had a sponsor available, a longshoreman named Luther Anderson. Godfrey told him that Anderson could not sponsor him as Anderson had already sponsored someone else. Phillips then tioning such statements. Respondent President Plante 's remark that sponsorship was lawful made it clear what Respondent 's position was. Respondent President Curt Johnston testified that the list was supposed to have contained 186 names but that the others were added accidentally. The minutes of the October 9, 1968, meeting of the Port Committee also indicate that the Union intended the list to contain 186 names and that a new list would be submitted 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked Godfrey what consideration would be given to his (Phillips') application. Godfrey asked if he had a sponsor and Phillips answered that he didn't know he needed one . Godfrey replied, "everybody knows you have to have a sponsor.... You don't have a sponsor so I can't very well tell you what to do about it, but there will be some applications out in the near future. I can't say when, but you better fill out one and get a sponsor in the meantime." Thereafter, applications were distributed for mem- bership in the Union as terminal warehousemen but none were made available for application for class B registration.' 4. Conclusions as to the sponsorship practice I conclude from the above findings that Respond- ent, in the selection of class B registrants, has required and continues to require applicants to be sponsored by class A longshoremen or members of Respondent, as alleged in the complaint. As already noted, Respondent in its amended answer admitted that all class A longshoremen were members of Respondent. Respondent contends that the complaint must be dismissed under Section 10(b) of the Act because the allegedly unlawful conduct occurred more than 6 months before the filing of a charge. I find this al- legation without substance. Godfrey's statements to Phillips and Miller, as set forth above, establish that as of February 20, 1969, Respondent required sponsorship. That date would clearly be within the timely period for the filing of the charges. It is also clear that events occurring prior to the 10(b) period may be considered as background to give meaning to a subsequent event. See Houston Maritime Association, Inc., 168 NLRB 615 and cases cited therein. Consideration must now be given to the question of whether such a sponsorship requirement violated the Act. C. Analysis and Conclusions 1. The duty of fair representation a. The evolution of the doctrine The duty of fair representation was first enun- ciated by the United States Supreme Court in a 1944 case of Steele v. Louisville and Nashville Rail- road Company, 323 U.S. 192, which arose under the Railway Labor Act. In that case a union which had, pursuant to that act, authority to bargain as the exclusive representative of a class of railway employees took action to prevent Negroes from holding certain jobs. The Supreme Court held, in substance, that the same statute which gave the union the right to act as the exclusive bargaining agent for all members of the craft inherently required the union to represent nonunion or minority members in the craft fairly, impartially, and in good faith. The Court found that the usual judicial remedies of injunction and damages were appropriate for a breach of such a duty.' In Ford Motor Co. v. Huffman, 345 U.S. 330 (1953), the United States Supreme Court applied the same logic to a union whose status as an exclu- sive bargaining agent derived from the National Labor Relations Act. In that case the Court looked into the union's handling of the seniority of return- ing veterans and set forth the criteria that a union must follow, saying "a wide range of reasonableness must be allowed a statutory bargaining representa- tive in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion." cf. International Typographical Union, Columbus Typographical Union No. 5, AFL-CIO The Dispatch Printing Co., 177 NLRB 855. The Supreme Court reiterated this concept of fair representation as applied to a union whose authority stems from the National Labor Relations Act in the case of Humphrey v. Moore, 375 U.S. 335 (1964). In that case the union had integrated seniority lists and an action for breach of contract had been brought under Section 301 of the Act. The Court said: "By choosing to integrate seniority lists based upon length of service at either com- pany, the union acted upon wholly relevant con- siderations . not upon capricious or arbitrary fac- tors. The evidence shows no breach by the union of its duty of fair representation." Though all of the Supreme Court cases cited above held that a unicn which exercises authority as an exclusive bargaining agent pursuant to statute has a concomitant duty to represent fairly all of the employees for whom it bargains, none of them dealt with the question whether a breach of that duty vio- lated any of the unfair labor practice sections of the Act. The Board addressed itself to this question in Miranda Fuel Company, Inc., 140 NLRB 181, en- forcement denied 326 F.2d 172 (C.A. 2). In that case the Board found that a union caused an em- ployer to reduce an employee's seniority status in a manner that violated their collective-bargaining contract. The Board held that the duty of a statuto- ry representative to represent all employees in the bargaining unit had to be viewed in the context of ' These findings are based on the credited testimony of Phillips As noted above, Respondent did not call any witnesses and Godfrey did not take the stand. Arthur Miller also testified as to what was said at this conversation and in general terms corroborated Phillips' testimony concerning the need for a sponsor However , Miller was an extremely confused witness and my observation of him as he testified leads me to the conclusion that he was not aware of the distinction between registration as a class B longshoreman and an application for membership in Respondent as a terminal warehouseman Subsequent to this conversation Miller was admitted to membership in the Union as a terminal warehouseman and since that time he has been dispatched on a regular basis for longshoreman's work ' In the same vein see Tunstall v. Brotherhood of Locomotive Firemen and Engmemen, 323 U S 210 INTL. LONGSHOREMEN 'S UNION , LOCAL NO. 13 the right guaranteed employees by Section 7 of the Act "to bargain collectively through representatives of their own choosing." The Board then held: Section 7 thus gives employees the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting their employment. This right of employees is a statutory limitation on statutory bargaining representatives, and we conclude that Section 8(b)( I )(A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any em- ployee upon considerations or classifications which are irrelevant, invidious, or unfair. The Board further held that a union violated Sec- tion 8(b)(2) of the Act where its failure to represent employees fairly adversely affected the employment status of an employee, saying- . . : we further conclude that a statutory bar- gaining representative and an employer also respectively violate Section 8(b)(2) and 8(a)(3) when, for arbitrary or irrelevant reasons or upon a basis of an unfair classifica- tion, the union attempts to cause or does cause an employer to derogate the employment status of an employee. In essence the Board held that where a union causes an employer to adversely affect an em- ployee's employment status in such a manner that no legitimate employer or union purpose is served, that the forseeable result in an unlawful encourage- ment of union membership. Thus, where an em- ployer bows to a union demand that an employee's employment status be derogated, and that demand serves no legitimate employer or union purpose and is therefore invidious and unfair, the employer has discriminated in regard to hire or tenure of employ- ment or terms and conditions of employment and in the process has encouraged membership in a labor organization within the meaning of Section 8(a)(3) of the Act. It is a violation of 8(b)(2) of the Act for a union to attempt to cause an employer to dis- criminate against an employee in violation of Sec- tion 8(a)(3), whether or not that attempt is suc- cessful. In the Miranda case the Board found that the union did violate 8(b)(1)(A) and (2) of the Act and that the employer violated Section 8(a)(1),and (3). Though the Court of Appeals for the Second Circuit refused to enforce the Miranda decision, a majority of that court did not rule on the question whether a breach of the duty of fair representation was an unfair labor practice. The Board has consistently followed the doctrine that it laid down in its Minanda decision. In Huges 9 Though in both these cases the Board found that the union violated 8(b)(3) of the Act, no consideration will be given in this decision to whether a failure of a union to a fairly represent employees constitutes an unlawful refusal to bargain There is no such allegation in the complaint. In addition see Houston Maritime Association , Inc, supra, where the Board did not adopt the Trial Examiner's alternate conclusion that a breach of the 227 Tool Company, 147 NLRB 1573, if held that a union's refusal to entertain the grievance of an em- ployee because of that employee's race was a viola- tion of Section 8(b)(1)(A), (2), and (3) of the Act. In Local 1367, International Longshoremen's As- sociation, AFL-CIO (Galveston Maritime Associa- tion ), 148 NLRB 897, enfd. 368 F.2d 1010 (C.A. 5), it held that union-inspired work quotas based on race violated Section 8(b)(1 )(A), (2), and (3) of the Act.' In Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO (Goodyear), 150 NLRB 312, enfd. 368 F.2d 12 (C.A. 5), the Bard continued to follow its Miranda doctrine and found that a union violated Section 8(b)(1)(A), (2), and (3) of the Act by failing to process grievances relating to plant facilities which were segregated on the basis of race. In enforcing the Board's order the Fifth Circuit Court of Ap- peals agreed that a breach of a union's duty of fair representation did constitute an unfair labor prac- tice under the Act. The Board has also held that a union's breach of the duty of fair representation as applied to the operation of hiring halls constitutes violations of Section 8(b)(1)(A) and (2) of the Act. In Cargo Handlers, Inc., 159 NLRB 321, the Board found that a union violated Section 8(b)( I )(A) and (2) of the Act by running its hiring hall in such a way that Negroes were discriminated against . In Houston Maritime Association, Inc., supra, the Board similarly found a violation of 8(b)(1)(A) and (2) of the Act where a union refused to take all registra- tions at its hiring hall in order to prevent Negroes from using the hall. In effect the union had created a pool of white employees with preferred status. Even though this "freeze" on registration had \begun more than 6 months prior to filing of the charge, the Board held that the union had within the 10(b) period breached its duty of fair represen- tation and therefore violated Section 8(b)(I )(A) and (2) of the Act. In reaching this conclusion, the Board specifically held that the obligation of fair representation extended to applicants for employ- ment.'0 Though the Supreme Court has not as yet specifi- cally ruled on the question of whether a union's breach of the duty of fair representation constitutes a violation of the unfair labor practice sections of the Act, the high Court's language in the case of Vaca v. Sipes, 386 U.S. 171 (1967) indicates that the Miranda doctrine is in tune with the Court's thinking. The Vaca case presented a preemption question where state courts had asserted jurisdic- tion over a union 's allegedly arbitrary failure to process a grievance to arbitration. The high Court union's duty of fair representation violated Section 8(b)(3) of the Act, holding that it was unnecessary to consider and decide that question for the purpose of arriving at a decision in that case 10 It has long been established that applicants for employment are en- titled to the protections of the Act. Phelps Dodge Corp. v. N.LR.B , 313 U.S. 177 427-258 O-LT - 74 - 16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found that the state courts did have concurrent ju- risdiction but that a failure to represent fairly had not been proved. In reaching this conclusion the Court reviewed the history of the Miranda doctrine in detail, tying that doctrine into the flow of cases dealing with the duty of fair representation which started under the Railway Labor Act. Rather than indicating disagreement with the Board , the Court commented on the failure of the Board to adopt a Miranda doctrine at an earlier date by referring to "the NLRB's tardy assumption of jurisdiction in the cases...." b. The criteria to be applied and conclusions The cases cited above all used language such as "unfair," "invidious," or "arbitrary" in describing the type of union conduct which was to be limited. Equally broad language is used in describing the ex- tensive area of discretion that a union has in per- forming its legitimate functions . In essence, the union's actions with regard to employees on whose behalf it bargains must bear a reasonable relation- ship to its function as either the bargaining agent or as a labor organization. Under the Miranda case no such reasonable relationship is present when a union causes an employee's seniority to be reduced in violation of a contract. Under many of the other cases cited no such reasonable relationship is ex- istent where a union uses racial criteria to affect employment status. The question presented in this case is whether such a reasonable relationship ex- ists where a union requires a system of sponsorship as set forth above. The sponsorship system results in two classes of applicants for employment. There are those appli- cants who know a class A registrant, all of whom are members of a union, who are willing to act as sponsors and those applicants who do not know such persons. A sponsorship system has more the ring of an archaic social club than of a labor or- ganization. The labor organization is an important institution within our society that has substantial powers that affect the economic well being of the employees that it represents. These powers are sanctioned by a statute and there is an obligation as described in many of the cases cited above for labor organizations to exercise these powers responsibly. Respondent, by giving access to work (registration) to some applicants because they hap- pen to know a union member and by denying such access to others because they had not had the occa- sion to meet a union member who would sponsor them, is patently classifying applicants on an ar- bitrary basis. As noted above, Respondent did not call any witnesses and the only evidence attempting to justify the use of the sponsorship system is that of Respondent President Johnston who testified under Rule 43(b) of the FRCP when called by the General Counsel. Johnston's assertion that the sponsorship system was preserved in limited form so as to give certain employees , a large percentage of whom were Negroes, the same rights that other union members had enjoyed , has a very hollow ring. As indicated above , the group of class A regis- trants who were eligible to sponsor under Respond- ent's own interpretation of the sponsorship system were not in large measure the same group who were actually used for sponsors in the last list of ap- plicants given to the Association by Respondent. Johnston seems to imply that the use of sponsorship by Negroes will cause other Negroes to become class B registrants . However , this is not a case of union-caused preferential hiring of Negroes and the social and legal implications of such a defense therefore need not be considered . Johnston's in- nuendoes in his testimony in this direction are so vague that they cannot support any findings of fact. In short there is no showing that the sponsorship system has anything to do with any racial problem. Respondent offers no other evidence which even remotely ties in the sponsorship requirements to any legitimate function that it has as a bargaining representative or labor organization. I find the sponsorship system as described above to be arbitrary and unfair. Respondent has the duty to refrain from such conduct where it adversely af- fects the employment status of employees and ap- plicants for employment on whose behalf it bar- gains. In these circumstances I find that Respond- ent's requirement that the sponsorship system be used violates Section 8(b)(1)(A) and (2) of the Act. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Associ- ation's operations described in section I, above, have a close, intimate, 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 of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. Having found that Respondent requires appli- cants for class B registration with the hiring hall be sponsored by class A registrants or members of Respondent, and having further found that such sponsorship system is in violation of Section 8(b)(1)(A) and 8(b)(2) of the Act, I shall recom- mend that Respondent cease and desist from requiring the use of the sponsorship system. INTL. LONGSHOREMEN 'S UNION, LOCAL NO. 13 It is axiomatic that remedies for unfair labor practices must be tailored to correct in a meaning- ful way the effects of the unlawful activity. In some situations a cessation of the unlawful practice is suf- ficient, but the pragmatic facts of each individual case must be considered. I have found that Respond- ent has unlawfully refused to consider for registra- tion any unsponsored applicant. However, I cannot determine from an evaluation of the record how many applicants would have been registered or who those registrants would have been if the unfair labor practice had not occurred. Any attempt to supply the number or names would be pure conjec- ture. An arbititrator on March 10, 1968, concluded that 400 applicants should be registered. However, he was not dealing with an unfair labor practice problem. The number of class B registrants is a matter which should be decided in collective bar- gaining between Respondent and the Association or through machinery set up by them. Though there is no allegation in the complaint that Respondent has unlawfully refused to bargain, I believe that any ef- fective remedy for the unlawful sponsorship system would require that Respondent be ordered to bar- gain upon request with the Association as to the number of applicants to be registered as class B longshoremen and, if an agreement is reached on that issue , to proceed with the registration on a nondiscriminatory basis without the use of sponsor- ship . I shall so recommend. However, even this remedy will not adequately remedy the unfair practice. Bargaining as to the number of class B registrants that are needed on the longshore must take into consideration the amount of work that is available. Respondent has succeded in bending the hiring hall operation so that from its point of view no additional registrants are needed. The uncontroverted evidence " establishes that warehousemen who are members of Respondent are referred for work from the hiring hall after class B registrants and before casual longshoremen. Though this preferential treatment of warehousemen is not alleged in the complaint nor found by me in this decision to be a violation of 229 the Act, continuation of this practice places Respondent in a position where it can indefinitely continue to bar nonsponsored applicants from re- gistration. It is unlikely that any nonsponsored ap- plicants will ever receive registration as class B longshoremen while union member warehousemen are freely used as an extension to currently re- gistered class B longshoremen's hiring list. The use of the warehousemen in this way is not sanctioned by the contract and Respondent did not come for- ward with any explanation of its actions. This preference afforded warehousemen prevents the remedy from being effective and therefore I shall recommend that Respondent cease and desist from causing or attempting to cause warehousemen to be given preferential hiring treatment. If the individual warehousemen who want to work as longshoremen can meet nondiscriminatory standards, they can apply for class B registration along with the other applicants. If these warehousemen are not selected as class B registrants , they can be treated upon a nondiscriminatory basis the same as any casual longshoremen. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the fol- lowing: CONCLUSIONS OF LAW 1. The Association and its employer-members are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By requiring that applicants for registration as class B longshoremen be sponsored by class A re- gistrants or members of Respondent , Respondent violated Section 8(b)(I)(A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publica- tion.] " Based on the testimony of Frank Aguilar , the chief dispatcher of the hiring hall and an elected official of Respondent.