Pacific Maritime Association

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pacific Maritime Association and Kado C. Wilson International Longshoremen's and Warehousemen's Union, Local No. 54 and Kado C. Wilson. Cases 20-CA-4490 and 20-CB-1613-1 June 30, 1970 DECISION AND ORDER By MEMBERS FANNING, MCCULLOCH, AND JENKINS On March 12, 1970, Trial Examiner Herman Corenman issued his Decision in the above-entitled consolidated proceeding, finding that the Respon- dents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and supporting briefs, and the General Counsel 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.' Respondent Pacific Maritime Association (PMA) contends that it should not be held liable for any acts of discrimination prior to October 11, 1966, the applicable 10(b) period, in view of the fact that the initial charge against it was not filed until April 10, 1967. Since the 10(b) period began on October 11, 1966, and as the complaint alleges unfair labor practices against PMA only from October 11, 1966, to April 1967, we will limit Respondent PMA's lia- bility to that applicable period. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. The Respondent, Pacific Maritime Associa- tion, San Francisco, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating in an unlawful manner against any casual dispatch hall applicant seeking employment with any Pacific Maritime Association members. (b) In any other manner interfering with, restraining, or coercing any PMA employee or ap- plicant for employment in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent permitted by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Jointly and severally with the Respondent Union make whole Kado C. Wilson, George Wims, Johnie B. Ross, Booker T. Kidd, Ardis Blalock, T. D. Couvson, Tom Taylor, Robert E. Deloney, and David W. Roland for any loss of earnings they may have incurred as a result of the discrimination against them during the period from October 11, 1966, to April 1967, in the manner set forth in the Trial Examiner's Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in the Stockton area copies of the notice attached to the Trial Ex- aminer's Decision as Appendix A,2 as modified hereafter. Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by the Respondent Company's representative, shall be posted by the Respondent Company 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. ' The Respondents except to the Trial Examiner's nclusions that they discriminated in regard to the hire and tenure of 10 ri d casuals, particu- larly Johme B Ross and Roy E Martini, since ne) er Ross nor Martini testified We find no ment in these exceptions as they relate to Ross, as the testimony of witness Couvson establishes that Ross was a casual longshoreman who appeared at the hiring hall during 1966 and 1967 Although the exhibits show that Martini did work for PMA during 1966 and 1967, Martini did not testify and the General Counsel did not offer any testimony regarding him Accordingly, we find ment in the Respondents' exceptions relating to Martini and shall dismiss the allegations of the com- plaint regarding him. 'fn the event that the Board's 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 En- forcing an Order of the National Labor Relations Board - 184 NLRB No. 32 PACIFIC MARITIME ASSOCIATION Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in paragraph (c), above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Union 's notice attached to the Trial Examiner's Decision as Ap- pendix B, with the name of Roy E . Martini deleted therefrom. (e) Mail to the Regional Director for Region 20 signed copies of Appendix A, as modified, for post- ing by the Respondent Union at Local No. 54's of- fices and hiring hall. Copies of said notice , on forms provided by the Regional Director, after being duly signed by a representative of the Respondent Com- pany, shall be forthwith returned to the Regional Director for such posting. (f) Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. B. The Respondent, International Longshore- men's and Warehousemen 's Union, Local No. 54, Stockton, California, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause the Pacific Maritime Association to unlawfully discriminate against any casual dispatch hall applicant seeking employment with any Pacific Maritime Association members. (b) Threatening any applicant for employment or any employee with loss of employment and/or violence because they filed unfair labor practice charges with the National Labor Relations Board. (c) In any other manner restraining or coercing any PMA employee or applicant for employment in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make Kado C. Wilson, George Wims, Johnie B. Ross, Booker T. Kidd, Ardis Blalock, T. D. Couvson , Tom Taylor, Robert E . Deloney, and David W . Roland whole for any loss of earnings they may have incurred as a result of the dis- crimination against them , in the manner set forth in the Trial Examiner's Decision , and jointly and severally with the Respondent Company make the above-named employees whole during the period from October 11, 1966, to April 1967. In the event that the Board 's 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 313 (b) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records , social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at the offices and hiring hall of Local 54 in the Stockton area copies of the notice attached to the Trial Examiner's Decision as Appendix B, with the name of Roy E . Martini deleted therefrom.' Copies of said notice , on forms pro- vided by the Regional Director for Region 20, after being duly signed by the Respondent Union's representative , shall be posted by the Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members or applicants are customarily posted . Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered , defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in paragraph ( c), above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Company's notice attached to the Trial Examiner 's Decision as Appendix A, as modified. (e) Mail to the Regional Director for Region 20 signed copies of Appendix B for posting by the Respondent Company at its places of business in the Stockton area . Copies of said notice, on forms provided by the Regional Director, after being duly signed by the Respondent Union's representative, shall be forthwith returned to the Regional Director for such posting. (f) Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. C. Substitute the following paragraph for the last indented paragraph of the notice marked "Appen- dix A:" WE WILL make Kado C. Wilson , George Wims, Johnie B. Ross, Booker T. Kidd, Ardis Blalock, T. D. Couvson, Tom Taylor, Robert E. Deloney, and David W. Roland whole for any loss of earnings they may have suffered because of the discrimination against them during the period from October 11, 1966, to April 1967. "Posted Pursuant to a Judgment of the United States Court of Appeals En- forcing an Order of the National Labor Relations Board - 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Trial Examiner: A con- solidated complaint was issued by the General Counsel of the National Labor Relations Board in the above-captioned matters on October 10, 1967, on the basis of charges and amended charges filed with Region 20 of the Board by Kado C. Wilson, an individual, against Pacific Maritime Association, herein called PMA, and against International Longshoremen's and Warehousemen's Union, Local No. 54, herein called Respondent Union or at times Local 54.' The complaint alleges in substance that the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act and PMA violated Section 8(a)(1) and (3) of the Act in their discriminatory operation of an exclusive referral system wherein the Respondent Union caused the employer-mem- bers of PMA to discriminate against 10-named em- ployees by refusing to refer these 10-named em- ployees to available jobs to employer-members of PMA. The complaint also alleges that the Respon- dent 'Jnion, by its president, Eddie Holland, vio- lated 3(b)(1)(A) by threats of loss of employment made to charging individual Kado Wilson on Janua- ry 5, .967, because he had filed unfair labor prac- tice charges with the Board.' The Respondents deny the commission of the alleged unfair labor practices. Pursuant to notice , a hearing was begun before Trial Examiner Wallace E. Royster on January 29, 1968, who on that date indefinitely postponed the hearing to permit the General Counsel to seek en- forcement of subpoenas duces tecum with which the Respondents were refusing to comply. Pursuant to notice, the hearing resumed on January 13, 1969, and was again adjourned indefinitely pending the outcome of the subpoena enforcement proceedings in the U.S. court of appeals., With the demise of Trial Examiner Royster, the hearing resumed pur- suant to notice before me on November 12, 13, and 14, 1969, and was concluded on January 19, 1970. All parties appeared by counsel and were afforded a full opportunity to be heard, to examine and cross-examine witnesses, to adduce evidence, and to file briefs. Briefs filed by the General Counsel and the Respondents since the close of the hearing have been carefully considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT EMPLOYER Pacific Maritime Association is a California cor- poration with its principal place of business situated at San Francisco, California. It is an association of employers in the shipping and stevedoring indus- tries on the Pacific Coast and, inter alia, negotiates and administers collective-bargaining agreements with union representatives of the employees of its employer-members. The employer-members of PMA annually perform services in the transporta- tion of goods and passengers between the State of California and other States of the United States and foreign countries valued in excess of $50,000. By reason of the foregoing and its activities on behalf of its members, PMA is, and has been at all materi- al times, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it would effectuate the policies of the Act to as- sert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The Respondent Union and International Longshoremen's and Warehousemen's Union, Local No. 6, herein called Local 6, are labor or- ganizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues are (1) whether the 10 individuals named in the complaint were illegally discriminated against in the operation of the dispatch hall and (2) whether Respondent Union's president, Holland, threatened reprisals against Kado Wilson because he had filed unfair labor practice charges with the Board. B. Prefatory Statement PMA and the Respondent Union at all times material herein have been, and continue to be, bound by a collective-bargaining agreement between PMA, on behalf of its employer-members, and the International Longshoremen's and Warehousemen's Union, on behalf of itself and each and all of its longshore locals in California, Oregon, and Washington, including the Respondent ' Charges and amended charges were filed and served in Case 20-CB-1613-1 on December 29, 1966, April 26, 1967, and September 12, 1967 Charges and amended charges were filed in Case 20-CA-4490 on April 10, 1967, and September 12, 1967 2 The Respondent Union 's motion to strike this allegation from the com- plaint because not based on a timely charge was denied The alleged threat is related to and supported by the charges filed previously on December 29, 1966, and thereafter filed on April 26, 1967 N.L R B v Fant Milling Company, 360 US 301 PACIFIC MARITIME ASSOCIATION Union, and all employees performing work under the terms and conditions of the agreement com- monly referred to as the Pacific Coast Longshore Agreement. The collective-bargaining agreement provides, inter alia , for an exclusive referral system in which all expenses of the dispatching hall are borne equally by PMA and the Respondent Union. All longshoremen who are not members of the Respon- dent Union are permitted to use the dispatching hall only if they pay their pro rata share of the ex- penses related to the dispatching hall. Dispatchers are selected by the Respondent Union. First preference of employment and dispatch is given to fully registered longshoremen , commonly termed as longshoremen on the "A" list, who are members. Second preference in employment is given to limited registered longshoremen, called the "B" list. Pursuant to the authority contained in the col- lective-bargaining agreement, the Longshore Joint Port Labor Relations Committee, composed of union and PMA representatives , has adopted rules covering registration and deregistration of longshoremen designating that longshoremen shall fall into one or more of the following categories: fully registered (Class A) longshoremen; limited-re- gistration (Class B) longshoremen ; identified casual longshoremen; and extra casual longshoremen. C. The Discrimination Against the Casuals in the Dispatching Procedure Respondent Union operates a dispatch hall at Stockton, California, from which it dispatches all longshoremen for longshore work to PMA mem- bers within its geographic jurisdiction in the Stockton, California, area . It maintained the "A" list, "B" list, and list of identified casuals as above described . Casuals were dispatched to longshore work only after the "A" and "B" lists were ex- hausted .3 During most of the period of discrimina- tion alleged by the General Counsel , namely, June 30, 1966, to April 1967 ,4 the dispatchers at Respondent Union 's hall dispatched the casuals, numbering approximately 580 men , on a rotating basis, essentially giving them all equal seniority among themselves. To be dispatched, the casual was required to be in the hall and available; and if his number was passed because not present or available , he would not be dispatched until his identifying number appeared again in the rotating process. ' No claim is made by the General Counsel that the Respondent Union's practice of dispatching in order of preference , first "A" list registrants, next " B" list, and lastly the casuals , is violative of the Act 'The General Counsel concedes that his claim of violation cannot ex- tend poor to June 30, 1966, because of the 6-month limitation provided for in Section 10(b) The initial charge against the Respondent Union was filed and served on December 29, 1966, the initial charge against Respondent PMA filed and served April 10, 1967 The General Counsel additionally 315 During the period June 30, 1966, to April 1967, and for some time prior thereto not disclosed by the record, the Respondent Union's dispatchers had made a practice of dispatching members of Local 6 to longshore jobs covered by the collective-bargain- ing agreement binding upon PMA and the Respon- dent Union . Regularly during this period, after the "A" and "B" longshoremen had been dispatched and before the casuals were dispatched , Respon- dent Union's dispatcher would dispatch approxi- mately 15 members of Local 6 to longshore work. This was accomplished by communications between the Local 54 and Local 6 dispatching halls, both situated at different locations in Stockton , California, concerning the availability of Local 6 members. Local 6 is a "warehouse" local, as distinguished from a "Iongshore " local. It is not covered by the Pacific Coast Longshore Agreement that binds the PMA and the Respondent Union, and apparently is bound by a different agreement with a different employer association not disclosed by the record . The evidence shows there are two classes of men for dispatch purposes out of the Local 6 hall, namely, members and permit men. During the pertinent period, June 30, 1966, to April 1967, the Respondent Union dispatched Local 6 members on many days ahead of the longshore casuals . Local 54, however, did not dispatch Local 6 permit men. Analysis of PMA's "time worked" records in connection with Local 6's members ahead of the Local 54 casual list.5 The 10- period, June 30, 1966, to April 1967, Local 6 mem- bers were dispatched ahead of casuals from the Respondent Union's hall to approximately 1,300 longshore jobs. It is reasonable to conclude, and I find, that, as a consequence of this practice, longshore casuals were deprived of the 1,300 jobs to which Local 6 members had been dispatched. D. The 10 Discriminatees Out of the approximately 580 men who comprise the Local 54 casual list of longshoremen, the General Counsel's complaint names only 10 who, are claimed to be the victims of this alleged dis- crimination resulting from the dispatch on many days of an average of approximately 15 Local 6 members ahead of the Local 54 casual list.' The 10 named alleged discriminatees are: Kado C. Wilson, Roy E. Martini , George Wims, Johnie B. Ross, Booker T. Kidd, Ardis Blalock, T. D. Couvson, Tom Taylor, Robert E. Deloney, and David W. Ro- land. concedes that the alleged violation terminated in April 1967 ' The General Counsel 's reason for selecting only these 10-named in- dividuals from the casual list of longshoremen does not appear in the record . It would be idle to speculate as to those reasons but they could be manifold and involve problems of cooperation , proof, and perhaps the absence of pecuniary injury to men who seldom ever appear at the hall for dispatch 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Kado Wilson Kado Wilson filed the unfair labor practice charges which underlie the issuance of the com- plaint in these proceedings . He had worked as a longshoreman out of the Local 54 hall since 1959. He was on the list of casuals who were called after the "A" or "members" list and the "B" list had been exhausted. In the pertinent period , June 30, 1966, to April 1967, he paid his pro rata fees regu- larly. He went to the hall daily and frequently twice daily seeking work so as to be present at both the morning and afternoon dispatches. He saw that the Local 6 members were being dispatched ahead of the longshore casuals. On January 5 , 1967, Wilson went to the Local 54 dispatch hall as usual in the hope of gaining work. At the dispatch window , Eddie Holland, Local 54's president, said to Wilson, "You are going to have to watch your step out there chum-your days is numbered around here," and then Holland , turning to other men who were standing nearby , said, "he is the one that went to the NLRB on us." Wilson said nothing to Holland at the window . He went home and phoned Holland about 3:45 p .m. that same day at the dispatch hall. Wilson asked Holland why he had harassed him at the dispatch window . Holland told him it was because Wilson had filed charges against Local 54 with the NLRB . Holland said, "We don't condone that kind of crap around here ... from here on out , the consideration your going to get ... is going to be pretty slim." Wilson told Holland he was being discriminated against. Hol- land denied it. Wilson told Holland: The system permits discrimination against me. I paid dues in the Union herein since 1960 and guys have come here since I have, have been made members and have made B-men, and they goes out ahead of me and makes good money, and-even Local 6 now have come over and they go out ahead of me. I have to sit until all them go out. Holland replied , "They are union men, my friend , our sister union, and they will go out ahead of any casual people." Wilson answered, " I was paying dues here before Local 6 came over here," and Holland replied, "I don't care. They are Union men." Holland admonished Wilson further because he had gone to the NLRB. Wilson pointed out that "I just want to work and make a living ." Holland replied, "Well, we are letting you do it, but if you keep this s - up, your days may be numbered around here . I am telling you just like it is-How much of this s - do you think we can condone from our people-if you want to go to the NLRB, we will go with you." 6 The General Counsel represents in his brief that alleged discnmmatee Johnie Ross was not called as a witness because he was in Texas at the time and that Roy Martini was in the hospital with a severe back injury Witness Couvson testified that Johnie Ross worked as a casual out of Local 54's hall Wilson returned to the Local 54 hall again that same afternoon and talked with Holland. Their con- versation was along the same line as it had been on the phone. Holland said to Wilson, "How much of this s- can I condone with our people- I can't stop it now; the order has already gone out to get you." Wilson testified that this experience made him "sick at the stomach." He turned in his ticket and went back home. "He didn't try to work. He felt they might get me." The aforesaid conversations between Holland and Wilson are based on the credible and uncon- tradicted testimony of Wilson. I find that in the context of the conversations, Holland threatened that Wilson would be denied work opportunities and suffer violence because he had filed unfair labor practice charges with the Board. Such threats, I find, restrained and coerced employees in their right to seek access to the Board's processes in violation of Section 8(b)(1)(A) of the Act. N.L.R.B. v. Industrial Union of Marine & Shipbuild- ing Workers of America, AFL-CIO, 391 U.S. 418, affg. 159 NLRB 1065; Local 138, Operating En- gineers (Charles S. Skura), 148 NLRB 679. In Sku- ra, supra at 681, the Board emphasized: Not only does the Board have authority to pro- tect employees who participate in the Board's process, but it has been held that the Board has an affirmative duty to exercise that authority to its outermost limits to protect such employees. [Eugen Pedersen v. N.L.R.B. [Modern Linen & Laundry Service, Inc.], 234 F.2d 417 (C.A. 2).] 2. The other nine discriminatees In addition to Kado Wilson, seven of the dis- criminatees alleged in the complaint testified; namely, T. D. Couvson, Booker Kidd, David W. Roland, Robert Deloney, Tom Taylor, George Wims, and Ardis Blalock.6 Their testimony in es- sence was that each of them was an experienced longshoreman , most of them for many years; that each was a qualified lift truck operator; that each was not a Local 54 member; that each worked as a casual out of Local 54's dispatch hall in the per- tinent period, June 30, 1966, to April 1967; that each paid his pro rata fees to the union hall regu- larly; and that each reported to Local 54's hall regularly each workday, many times twice a day, hoping to be dispatched.' The discriminatees also testified without dispute that with regularity Local 6 members were dispatched to longshore jobs ahead of the casuals on many days, with the con- sequence that there were occasions when Local 6 members would be dispatched, and casuals, includ- ing themselves, would not. I credit their testimony in 1966 and 1967 ' Booker Kidd conceded that for a period extending from approximately July to October 1966, he did not report for work at the hall because of per- sonal domestic problems. PACIFIC MARITIME ASSOCIATION and accordingly find that they were nonunion qualified longshoremen, paid up, and available for dispatch to longshore jobs during the pertinent period, June 30, 1966, to April 1967. E. Analysis and Conclusionary Findings Since the decisions of the United States Supreme Court in Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al. v. N.L.R.B., 365 U.S. 651; Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Los An- geles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667; and N.L.R.B. v. News Syndicate Co., Inc., et al., 365 U.S. 695, it is now well established that a system of hiring employees exclusively through union referral is not violative of the Act as long as there is an absence of discrimination which en- courages or discourages union membership. Dis- crimination per se is not outlawed; only such dis- crimination as encourages or discourages member- ship in a labor organization is proscribed. Radio Of- ficers' Union of the Commercial Telegraphers Union, AFL [Bull Steamship Co.] v. N.L.R.B., 347 U.S. 17, 42-43. - The Court repeated in Local 357, Teamsters v. N.L.R.B., supra at 675 what it had said in Radio Of- ficers, supra: It is the "true purpose" or "real motive" in hiring ... that constitutes the test. Id. 43. Some conduct may by its very nature contain the implications of the required intent; the natural forseeable consequences of certain ac- tion may warrant the inference. Id. 45.... The existence of discrimination may at times be in- ferred by the Board, for "it is permissible to draw on experience in factual inquiries." The Court went on further to say at 675: It may be that the very existence of the hir- ing hall encourages union membership. We may assume that it does. The very existence of the union has the same influence.... The truth is that the union is a service agency that probably encourages membership whenever it does its job well. But as we said in Radio Of- ficers v. Labor Board, supra, the only en- couragement or discouragement of union membership banned by the Act is that which is "accomplished by discrimination." Relying on Pacific Maritime Association, 172 NLRB 2055, and Pacific Maritime Association, " In Pacific Maritime Association, 172 NLRB 2055, the Board held that giving preference in job referrals to "strikers " and "unemployed" over longshoremen using the casual dispatch hall was not violative of the Act in the absence of evidence that the "stokers" and "unemployed" were mem- bers of unions or that "casuals" were not union members, and where it was also shown that the "sinkers" and "unemployed" were more dependable and better workers than the "casuals " In Pacific Maritime Association, 155 NLRB 1231, it was held that the deregistration of 80 men on the "B" list who did not qualify for registration on the "A" list because they had been late eight or more times in making their "pro rata" payments or who had 317 155 NLRB 1231,8 the Respondents take the posi- tion that their conduct in according preference to Local 6 members over casuals was based not on their membership in a sister local but rather on their superior skills over the longshore casuals. The record, however, does not support that contention. It is established without contradiction that most of the 10-named discriminatees were longshoremen with many years of experience;' that they were regularly available for work; and had the necessary longshore skills and experience Local 6 members presumably did not have as the Local 6 members were warehousemen and not longshoremen. In construing Local 54's motive for dispatching Local 6 members ahead of the casuals, I attach spe- cial significance to Holland's statement to Wilson on January 5, 1967, when Wilson complained that Local 6 members were being dispatched ahead of him. At that time, Holland, in explaining the reason for his action, replied: "They are union men my friend, our sister union, and they will go out ahead of any casual people," -and when Wilson pointed out that he "was paying dues [pro rata fees] before Local 6 came over here," Holland replied, "I don't care; they are union men. "10 I am convinced, and I find, that the overriding motive of Local 54 in dispatching Local 6 members ahead of casuals, including the 10-named dis- criminatees, was to prefer them because of their membership in Local 54's sister Local 6. In arriving at this conclusion, I must note that the Respondents produced no evidence from their responsible agents who administered the Local 54 dispatching hall bearing on their motives for giving Local 6 mem- bers preference over longshore casuals. In this con- nection I have noted that Local 54's practice, which it terminated in April 1967, of dispatching Local 6 members ahead of its longshore casuals, appears to have been in contravention of the rules of the Longshore Joint Port Labor Relations Com- mittee composed of union and PMA representa- tives. These rules, although providing for dispatch of Class A, B, and casuals, made no provision for Local 6 members. (See G.C. Exh. 2(b).) I have concluded that the conduct of the Respon- dent Union in dispatching Local 6 members ahead of its own casuals thereby caused the Respondent PMA to discriminate with respect to the hire and employment. of the 10 casuals named in the com- plaint," thereby encouraging membership in Local 6 in violation of Section 8(a)(3) of the Act. By such conduct the Respondent Union violated Sec- been late six or more times and had an otherwise blemished record, did not violate the Act s Thus, Couvson had 10 years of experience , Kidd 12 years, Deloney 5 years, Taylor 15 years, Wims 11 years, Wilson 8 years 10 1 find that these remarks were made by Holland to Wilson in ac- cordance with Wilson's credible and uncontradicted testimony 11 Kado C Wilson, Roy E. Martini, George Wims, Johnie B Ross, Booker T Kidd, Ardis Blalock , T D Couvson, Tom Taylor, Robert E Deloney, and David W Roland 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 8(b)(1)(A) and (2) of the Act and the Respondent PMA violated Section 8(a)(1) and (3) of the Act. The Respondent PMA having designated and authorized the Respondent Union to act as their exclusive dispatching agent is jointly liable for the unlawful dispatching and hiring prac- tices. As the Second Circuit stated in Morris-Knud- sen Company , d/bla Robinson Bay Lock Constructors v. N.L.R.B., 275 F.2d 914, 917: ... we agree with the Board that an employer may not avoid liability for violations of the Act by the hiring hall when he has turned over to it the task of supplying the men to be employed. The Local acted as agent for the petitioners in selecting the men to be hired. Its discriminato- ry acts, which unlawfully encourage member- ship in Local 545, are properly chargeable to the agent's principal as discriminatory acts by it; N.L.R.B. v. George D. Auchter Co., 5 Cir., 209 F.2d 273, 277; N.L.R.B. v. F. H. McGraw & Co., 6 Cir., 206 F.2d 635, 639-640. See also N.L.R.B. v. Houston Maritime Association, Inc., 337 F.2d 333 (C.A. 5, 1964); N.L.R.B. v. Southern Stevedoring and Contracting Co., 332 F.2d 1017 (C.A. 5, 1964); and N.L.R.B. v. H. K. Fer- guson Co., 337 F.2d 205, 209 (C.A. 5, 1964). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of PMA and of Local No. 54, set forth in section III, above, occurring in connection with the 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. PMA has engaged in, and is engaging in, unfair labor practices violative of Sec- tion 8(a)(3) and (1) of the Act and that Local No. 54 has engaged in, and is engaging in, unfair labor practices violative of Section 8(b)(2) and (1)(A) thereof, it is recommended that each of them be or- dered to cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. Having found that each Respondent has dis- criminated in the hire and tenure of employment of the "casuals," Kado C. Wilson, Roy E. Martini, George Wims, Johnie B. Ross, Booker T. Kidd, Ardis Blalock, T. D. Couvson, Tom Taylor, Robert E. Deloney, and David W. Roland, it is recom- mended that PMA be ordered to cease and desist from (1) discriminating against them or other qualified casuals for dispatch, or any other in- dividuals using the casual dispatch hall seeking em- ployment, by giving preference of employment to members of Local 6; (2) discriminating against any casual employee or applicant for employment because of nonmembership in Local 6 or any other labor organization; and (3) in any other manner in- terfering with, restraining, or coercing employees including casual dispatch hall applicants for dispatch, in the exercise of the rights guaranteed by Section 7 of the Act. Having found that Local No. 54 has engaged in, and is engaging in, unfair labor practices violative of Section 8(b)(2) and (1)(A) of the Act, it is recommended that it be ordered to cease and desist from: (1) discriminating against casual dispatch hall applicants for dispatch, or against other individuals using the casual dispatch hall seeking employment, by giving preference in dispatch to members of Local 6; (2) causing or attempting to cause mem- bers of PMA, or any other employer, to dis- criminate against employees or applicants for em- ployment in violation of Section 8(a)(3) of the Act; and (3) in any other manner restraining or coercing employees, including casual dispatch hall applicants for dispatch, in the exercise of the rights guaran- teed by Section 7 of the Act. It is further recommended that PMA and Local No. 54, jointly and severally, be ordered to make Kado C. Wilson, Roy E. Martini, George Wims, Johnie B. Ross, Booker T. Kidd, Ardis Blalock, T. D. Couvson, Tom Taylor, Robert E. Deloney, and David W. Roland whole for any loss of earnings they may have suffered as a result of Respondents' discrimination against them by payment to them of a sum of money equal to the amount they normally would have earned as wages, less their net earnings during the period of the discrimination from June 30, 1966, to April 1967. Loss of earnings and in- terest thereon at the rate of 6 percent per annum to be computed and paid in accordance with and in the manner set forth in F. W. Woolworth Company,, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I agree with the contention of the General Coun- sel that a backpay order is appropriate, as the in- ference is clear from the record evidence that the 10-named discriminatees were deprived of employ- ment by the unlawful referral system. The computa- tion of the backpay involves special problems which it would be premature to discuss now, but which should be deferred until the compliance stage of these proceedings. See for example Local 138, International Union of Operating Engineers (Nassau & Suffolk Contractors' Assn.), 123 NLRB 1393, 1397-98, enfd. in pertinent part 293 F.2d 187 (C.A. 7); Local 1566, International Longshore- men's Assn. (Maritime Ship Cleaning and Main- tenance Co.), 122 NLRB 967, 969, enfd. 278 F.2d 883 (C.A. 3); N.L.R.B. v. Newspaper and Mail Deliverers' Union [Hearst Publications and New York Herald Tribune, Inc.], 192 F.2d 654 (C.A. 2), enfg. 93 NLRB 237, and 93 NLRB 419; News Syn- dicate Co., Inc., 95 NLRB 1098, 1119-20. Upon the basis of the foregoing findings of fact and upon the record as a whole, I make the follow- ing: PACIFIC MARITIME ASSOCIATION 319 CONCLUSIONS OF LAW 1. PMA is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 54 and Local 6 are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment or the terms and conditions of employment of Kado C. Wilson, Roy E. Martini, George Wims, Johnie B. Ross, Booker T. Kidd, Ardis Blalock, T. D. Couvson, Tom Taylor, Robert E. Deloney, and David W. Roland, PMA has en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By giving preference of employment to Local 6 members over casual dispatch hall applicants for dispatch, PMA has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. By causing PMA to discriminate with regard to the hire and tenure of employment or the terms and conditions of employment of Kado C. Wilson, Roy E. Martini, George Wims, Johnie B. Ross, Booker T. Kidd, Ardis Blalock, T. D. Couvson, Tom Taylor, Robert E. Deloney, and David W. Ro- land, Local No. 54 has engaged in, and is engaging in, unfair labor practices within the meaning of Sec- tion 8(b)(2) and (1)(A) of the Act. 6. By giving preference of dispatch to members of Local 6 over casual dispatch hall applicants for dispatch, Local No. 54 has engaged in, and is en- gaging in, unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 7. By causing, or attempting to cause, members of PMA to discriminate against employees or appli- cants for employment in violation of Section 8(a)(3), Local No. 54 has engaged in, and is engag- ing in , unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 8. By threatening Kado Wilson with loss of em- ployment and violence for filing unfair labor prac- tice charges with the Board, Local No. 54 violated Section 8(b)(1)(A) of the Act. 9. 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. ] APPENDIX A After a hearing duly heard, it was determined that we interfered with, restrained, and coerced certain "casuals" by giving preference of employ- ment to members of Local 6, International Longshoremen's and Warehousemen's Union over certain casual dispatch hall registrants seeking em- ployment as longshoremen with members of the Pacific Maritime Association. To remedy such ac- tion, Pacific Maritime Association has been required to discontinue such conduct found to be contrary to the National Labor Relations Act, and to take certain measures to carry out the Act's poli- cies, including the posting of this notice advising all casual dispatch hall applicants for jobs with mem- bers of Pacific Maritime Association of their freedom from any future interference, restraint, or coercion on our part. Accordingly, we hereby as- sure all casual dispatch hall applicants seeking jobs with our members that: WE WILL NOT discriminate, in any unlawful manner, against any casual dispatch hall appli- cant seeking employment with any Pacific Maritime Association member. WE WILL NOT in any other manner interfere with, restrain, or coerce any person seeking employment with any Pacific Maritime As- sociation member in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, except to the extent that those rights may be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized in Sec- tion 8(a)(3) of the aforesaid Act. WE WILL make Kado C. Wilson, Roy E. Mar- tini, George Wims, Johnie B. Ross, Booker T. Kidd, Ardis Blalock, T. D. Couvson, Tom Taylor, Robert E. Deloney, and David W. Ro- land whole for any loss of earnings they may have suffered because of our discrimination against them in the manner and to the extent recommended by the Trial Examiner in his Decision in this proceeding. PACIFIC MARITIME ASSOCIATION (Employer) Dated By (Representative ) (Title) 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 Na- tional Labor Relations Act, as amended, we hereby notify our employees in the Stockton, California, area and all casual dispatch hall longshoremen that: 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 320 DECISIONS OF NATIONAL Board's Office, 13050 Federal Building, 450 Gol- den Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335. APPENDIX B NOTICE TO ALL MEMBERS Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify all members of International Longshoremen's and Warehousemen's Union, Local No. 54, and all casuals in our dispatch hall that: After a hearing duly held, it was determined that we interfered with the guaranteed rights of certain "casuals" by giving preference of dispatch to mem- bers of Local 6, International Longshoremen's and Warehousemen's Union over casual dispatch hall applicants seeking jobs with members of Pacific Maritime Association. To remedy such action, your Union has been required to discontinue such con- duct found to be contrary to the National Labor Relations Act, and to take certain affirmative mea- sures to carry out the Act's policies, including the posting of this notice, advising you of your freedom from any future restraint or coercion by us. Ac- cordingly, we hereby assure you: WE WILL NOT discriminate, in any unlawful manner, against any casual dispatch hall appli- cant seeking employment with any Pacific Maritime Association members. WE WILL NOT threaten loss of employment or acts of violence to persons who file charges against us with the NLRB or in any other manner restrain or coerce any person seeking employment through the casual dispatch hall in the exercise of the rights guaranteed in Section LABOR RELATIONS BOARD 7 of the National Labor Relations Act, except to the extent that those rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8(a)(3) of the aforesaid Act. WE WILL make Kado C. Wilson, Roy E. Mar- tini , George Wims, Johnie B. Ross, Booker T. Kidd, Ardis Blalock, T. D. Couvson, Tom Taylor, Robert E. Deloney, and David W. Ro- land whole for any loss of earnings they may have suffered because of our discrimination against them in the manner and to the extent recommended by the Trial Examiner in his Decision in this proceeding. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN 'S UNION, LOCAL No. 54 (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, 13050 Federal Building, 450 Gol- den Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335.