Longshoremen's Local Union No. 1419

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Longshore Workers, International Longshore- men's Association, Local Union No. 1419, AFL-CIO (New Orleans Steamship Association) and Ben Davis. Case 15-CB-1031 November 20, 1970 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On June 19, 1970, Trial Examiner Benjamin K. Blackburn issued his Decision in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, General Longshore Workers, International Longshoremen's Association, Local Union No. 1419, AFL-CIO, New Orleans, Louisiana, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Trial Examiner: Ben Davis filed a charge against General Longshore Workers, International Longshoremen's Association, Local Union No. 1419, AFL-CIO, referred to herein as Respondent, on October 8, 1969. The General Counsel of the National Labor Relations Board, by the Regional Director for Region 15 (New Orleans, La.), issued complaint on March 13, 1970. The complaint alleged that Respondent had violated Section 8(b)(lXA), (2), and (5) of the Act. Respondent's answer, duly filed, admitted certain allega- tions of the complaint and denied others, including the allegation that it had committed unfair labor practices. Hearing was held before me, pursuant to due notice, in New Orleans on April 21, 1970. The principal issue litigated was whether Respondent's $1,000 initiation fee violates Section 8(b)(5) of the Act. 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 . Upon the entire record, including briefs filed by Respondent and the General Counsel, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE NEW ORLEANS STEAMSHIP ASSOCIATION The New Orleans Steamship Association, referred to herein as the Association , is a nonprofit Louisiana corporation composed of various employers engaged in the business of performing shipping, stevedoring, and related services at the Port of New Orleans and elsewhere. During the 12-month period preceding issuance of the complaint in this case its members received more than $ 1,000,000 for transporting goods in interstate and foreign commerce and more than $ 1,000,000 for services performed in connection with the transportation of goods in interstate and foreign commerce. On the basis of these facts, admitted by Respondent, I find that the Association is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. 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 UNFAIR LABOR PRACTICES A. Facts The contract presently in effect between Respondent, a sister ILA local, and the Association covers the period from October 1, 1968, to September 30, 1971. It contains a valid union-security clause providing for union membership after 30 days as a condition of employment. It provides for a basic wage of $4 an hour effective October 1, 1968, $4.25 an hour effective October 1, 1969, and $4.60 an hour effective October 1, 1970. It calls for time and a half for overtime and double time for work during meal hour. It provides for higher hourly rates of pay when handling various difficult cargoes. The highest of these is $9.60 an hour effective October 1, 1970, for damaged cargo-grain. The contract prior to the present one ran from 1964 to 1968. At the time it was negotiated in 1964 there were approximately 13,000 persons employed as longshoremen 186 NLRB No. 94 LONGSHOREMEN'S LOCAL UNION NO. 1419 675 in the Port of New Orleans. Of these, approximately 7,000 qualified for benefits under the contract by having worked at least 700 hours in the preceding year. The twin specters of automation and a guaranteed annual wage caused problems in the negotiation. A United States assistant secretary of labor who participated suggested that manage- ment and labor try to stabilize the work force on the riverfront, thus making both automation and guaranteed annual wage easier pills to swallow, by working out some system for reducing the use of casual labor. As a result, the 1964-68 contract contained a "Decasualization " clause which provided for continued discussions to this end during the life of the contract. In 1966 and 1967, pursuant to this agreement, the parties to the contract worked out and put into effect the system which is set forth in the "Hiring" clause of the current agreement . A registered basic work force is categorized as Group A. A registered nonbasic work force is categorized as Group A-2. Nonregistered persons who seek work as longshoremen are categorized as casuals . A longshoreman registers by filing an application with the Association and taking a physical examination. If he passes, he receives an identification card. First opportunities for employment go to members of Group A and Group A-2 without distinction. Casuals are hired only after all holders of identification cards who are present for the daily shapeup are hired. Casuals are only hired on a particular day if the Association first authorizes it. Respondent, with approximately 4,000 members, approx- imately 2,800 of whom are actively working as longshore- men in New Orleans, is the largest ILA local in the port. It has, for at least 25 years, provided death and medical benefits for its members which are over and above benefits they receive under the contract. Its dues are $3 per calendar quarter, plus 5 percent of earnings up to $3 a week. When a member pays his quarterly dues he receives a button which he displays when working to prove he is a member of Respondent. Respondent's initiation fee has varied over the years. From 1961 to March 1965 it was $270. From March 1965 to September 1967 it was $500. From September 1967 to April 30, 1968, it was again $270. From April 30, 1968, until April 14, 1969, it was again $500. On April 14, 1969, as part of the decasualization program, Respondent increased its initiation fee to $1,000 in order to limit the intake of members, thus avoiding building up a surplus work force. The fee is collected $500 on application and $500 in installments payable within 60 days. However, it is not unusual for an applicant to take as long as a year to pay the balance. He is considered a member for purposes of the union-secunty clause of the contract during this period. He does not pay any dues until the initiation fee is paid off. In the period from April 1, 1968, to April 14, 1969, 259 longshoremen joined Respondent, paying an initiation fee of $500 or less. From Apnl 14, 1969, until the hearing in this case, approximately 40 joined, paying an initiation fee of $1,000. The result of the decasualization program, includ- ing Respondent's increase in its initiation fee, has been an increase in the average number of hours worked by registered longshoremen. Other ILA locals along the Gulf coast have varying initiation fees, none as high as $1,000 . In Houston, Texas, Local 1273 charges $125, Local 872, $250. The locals in Corpus Christi and Brownsville, Texas, charge $250 each. Local 1459 in Mobile, Alabama, charges $200. Local 1303 in Gulfport, Mississippi, charges $500. Respondent's sister local in New Orleans, Local 1418, charges $500. Texas, Alabama, and Mississippi are right -to-work States. Louisia- na is not. When a longshoreman registers for work with the Association, he is informed that there is a union-security clause in the contract which requires him to join Respondent or Local 1418 after 30 days if he wants to continue working. However, he does not necessarily have 30 days thereafter to join. As the clause is interpreted by the parties to the contract, the 30-day penod begins to run on the first day a longshoreman, whether registered or casual, is employed in the port and ends 30 calendar days later regardless of whether he has had any work in the intenm. Thus, a longshoreman like Ben Davis, the Charging Party in this case , who has worked more than a month as a casual before registering may have used up his 30 days' grace under the contract before registering. Respondent receives daily reports of all longshoremen hired . It uses these reports to enforce the union-secunty clause . Its method is as follows: The normal gang consists of 18 men and a foreman, or gang carrier. When the foreman hires his gang at the daily shapeup, each man who has an identification card hands it to the foreman . The foreman returns them at the end of the day. Union business agents, called delegates , spot check ships in the port. They ask to see the buttons of all longshoremen working. They check those who cannot prove they are a union member by producing a button against the hiring records furnished by the Association. If they uncover a man who first worked as a longshoreman more than 30 days before, they "knock him off, the job by giving the foreman a "knock off" slip, a form furnished by the Association. If the delegates are able to produce a replacement immediately, the nonunion longshoreman is discharged at once. If not , he is permitted to finish the day. In either event, the foreman does not return the man's identification card, if he had one when the day began. Instead, he turns it in to the Association . It is not uncommon for a nonunion longshoreman , whether he be a casual or registered worker, to work several months like Ben Davis before the delegates catch him and knock him off. Davis started working as a casual longshoreman in November 1968. About 3 weeks later , in December, a stake closed the port. When the strike ended, Davis went back to work as a casual. He started saving money for the downpayment on Respondent's initiation fee. In May 1969 he went to Respondent's office. He was informed that the initiation fee had been raised to $1,000 and he would have to pay $500 down. He had saved only $200 . In June, because work was becoming increasingly difficult for a casual to get, he decided to register. He went to the Association's office and filed an application on June 17. Because he had a medical problem for which he had to be treated before he could pass the physical examination, he did not get his identification card until the latter part of July. He made no effort to join Respondent at any time, 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other than his abortive visit to its office in May. He had been working as a registered rather than a casual longshoreman some 14 days when, on August 7, 1969, he was knocked off in the manner already described. His foreman kept his identification card and turned it in to the Association. At the shapeup the next morning Davis asked the delegate who had knocked him off how he could get his identification card back. The delegate told him to join Respondent. Davis sought work as a casual at the shapeup from time to time thereafter without success for a period of 2-1/2 months. The Association authorized the hiring of casuals on the following dates in 1969: July 1, 2, 3, 7, 8, 14, 15, 22, 23, 28, and 29;August 4, 5, 14, 15, 18, 19, 21, 23, and 26;,September 2, 8, 9, 10, 15, 16, 17, and 29;October 6, 24, 27, and 31. All these dates are weekdays. The Association does not authorize the use of casual longshoremen on holidays, Saturdays, or Sundays. B. Analysis and Conclusions 1. Section 8(b)(5) Section 8(b)(5) of the Act provides that it shall be an unfair labor practice for a labor organization ... to require of employees covered by an agreement authorized under subsection (a)(3) the payment, as a condition precedent to becoming a member of such organization, of a fee in an amount which the Board finds excessive or discriminatory under all the circum- stances. In making such a finding, the Board shall consider, among other relevant factors, the practices and customs of labor organizations in the particular industry, and the wages currently paid to the employees affected. The intent of Congress in including this subsection in the Taft-Hartley amendments in 1947 is revealed in Senator Taft's summary of the bill which emerged from the Senate and House Conference. He pointed out that the House bill had included, in its so-called bill of rights subsection, a provision relating to excessive initiation fees. Senate conferees rejected the bill of rights on the ground that it would be unwise to authorize the Board to police the internal affairs of unions without further study of their structure. They thought the protections contained in Section 8(a)(3) and Section 8(b)(2) for persons expelled for reasons other than failure to pay dues and initiation fees were sufficient. House conferees agreed to drop the bill of rights. However, they pointed out that, in Senator Taft's words: ... the Senate amendment did not sufficiently deal with the situation in which unions wishing to continue a monopoly of certain trades might pass a resolution requiring all new members to pay exhorbitant initiation fees and thereby frustrate the intent of the Senate bill. The House bill, in effect, limited initiation fees to $25. 1 2 Leg. Hist. of LMRA, 1947, at 1540. 2 Local 153, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UA W-CIO (Richard Stacker, el at.), 99 NLRB 1419, 1421. 3 Motion Picture Screen Cartoonists, Local 839, I.A. T. S. E. (Animated Film Producers Association, et al), 121 NLRB 1196. 4 Local 611, International Brotherhood of Teamsters, Chauffeurs. Senate conferees accepted the principle but opposed setting a definite figure as impractical. Consequently, Section 8(b)(5) as set forth above was included in the bill finally enacted.' In this case the General Counsel conceded that Respondent's $1,000 initiation fee is nondiscriminatory in the sense that it has been applied uniformly to all applicants since April 14, 1969. However, that is not the sense in which Congress used "discriminatory," as the legislative history makes clear. The Board recognized that fact in the Stacker case2 when it said: ... "discrimination" ... is a general term, involving such flexible concepts as reasonableness and motivation as well as disparate treatment. Here, the specific intention of limiting its intake of members by doubling its initiation fee as part of the decasualization program suggested by a high official of the Department of Labor is advanced by Respondent as its defense. The Board has made intent a controlling factor in a number of cases. In the Cartoonists case3 the Board said: The Respondent . . . manifested a clear intent to accomplish precisely the result which Section 8(b)(5) seeks to avoid-the maintenance of a closed shop through the imposition of an initiation fee in an amount calculated to discourage entrance into the industry. In the Bakery case 4 the Board adopted the Trial Examiner's finding, couched in precisely the same language, that the union had violated Section 8(b)(5). In the Triangle case 5 the Board said: ... the increase in fee was designed for the purpose of restraining the Employer in the hiring of part-time employees who were not union members, or to end the practice, thereby restricting employment to full-time union members. We accordingly find the objective served by the tenfold increase in initiation fees rendered them discriminatory within the meaning of the Act. Therefore, the conclusion is inescapable that Respondent's $1,000 initiation fee, admittedly designed to discourage the entrance of casuals into the stevedoring industry in New Orleans, is discriminatory within the meaning of the Act. This case, however, was tried on the basis that Respondent's $1,000 initiation fee is excessive within the meaning of the Act. That "discriminatory" and "excessive" are separate grounds for finding a violation is clear. In the Ferro case6 the Board said: ... Section 8(b)(5) considers discriminatory and excessive initiation fees equally unlawful. In the Stacker case, supra, the Board said: The Respondent also contends that the phrase in Section 8(bX5), "discriminatory under all the circum- stances" means "excessive," although that section specifically prohibits fees found to be "excessive or discriminatory under all the circumstances." [Emphasis supplied.] As no evidence relating to excessiveness was Warehousemen & Helpers of America (St. Louis Bakery Employers Labor Council, et al.), 125 NLRB 1392. 5 Television and Radio Broadcasting Studio Employees, Local 804 (Radio and Television Division of Triangle Publications, et al.), 135 NLRB 632, 636, affd . 315 F.2d 398 (C.A. 3). 6 Ferro Stamping and Manufacturing Co., 93 NLRB 1459, 1461 (fn. 3). LONGSHOREMEN 'S LOCAL UNION NO. 1419 adduced, the Respondent apparently concludes that no violation was established. We cannot subscribe to the Respondent's proposed interpretation of the Act. To read the phrase "discriminatory under all the circumstances" as "excessive" would not only deny the plain meaning of the words of the statute, but would be imputing to Congress a purposeless choice of language. For this reason, the Board in the Ferro case found disparate fees to be discriminatory within the meaning of Section 8(b)(5), even though it was conceded that the larger fee was not excessive. But they are also interrelated. The first cases decided by the Board following enactment of Taft-Hartley all involved only charges that an initiation fee was discriminatory.7 However, the more recent cases have involved the element of excessiveness as well. In the Cartoonists case, supra, the union raised its initiation fee from $50 to $250 in order, as already indicated, to discourage entrance into the animated cartoon industry in Southern California. The union's contract provided for starting wages ranging from $46.10 to $154.38 a week. Other unions in the industry and in the area had initiation fees ranging from $150 to $250 and contracts providing for wages roughly comparable to those in the respondent union's contract. The Trial Examiner found $250 both discriminatory and excessive. However, the Board relied principally on the fee's discriminatory purpose. It pointed out at 121 NLRB 1196-97: Moreover, the Respondent failed to demonstrate that the fivefold increase in its initiation fee was prompted by financial necessity, the cost of providing increased benefits or any other reason beyond its desire to promote a more closed union. It rejected, as unnecessary to its decision, the Trial Examiner's principal finding relating to excessiveness at 121 NLRB 1203, namely: If it were a fact, and it was not on July 1, 1956, that other labor organizations in the same industry repre- senting employees earning approximately the same salaries required the payment of an equal initiation fee, it would remain true, I find, that such a requirement in the amount stated is excessive and discriminatory within the meaning of Section 8(bX5). In the Bakery case, supra, the union raised its initiation fee from $75 to $250 in order, as already indicated, to discourage entrance into the mass-produced bread, cake, and bakery products industry in St. Louis. The respondent union's initiation fee was equivalent to approximately 4 weeks' wages under its contract. Other unions in the area charged approximately half a week's wages. Respondent did not need $250 per applicant to meet its financial obligations. The fee was found to be both discriminatory and excessive. In the Triangle case, supra, the union raised its initiation fee from $50 to $500 in order, as already indicated, to discourage the use of part-time, nonunion employees in the broadcasting industry in Philadelphia. In overruling the 7 Ferro, supra; Stacker, supra; Food Machinery and Chemical Corporation, 99 NLRB 1430. 677 Trial Examiner's recommendation that the complaint be dismissed, the Board said at 135 NLRB 636: In reaching decision under Section 8(b)(5) the Board is directed by the subsection to consider, "among other relevant factors, the practices and customs of labor organizations in the particular industry, and the wages currently paid to the employees affected." Among "other relevant factors" we must consider the amount of increase when the change was effected and the reasons, so far as they are disclosed by the record, for making the increase. An increase in initiation fees from $50 to $500 is not insubstantial and, to one seeking employment in the industry, may well be so staggering as to preclude acceptance of employment. Such an increase demands explanation to bar a presumption that it is not at least excessive. After detailing its reasons for finding the initiation fee discriminatory, the Board went on at 135 NLRB 636-637: We likewise find the fees excessive under the circumstances of this case. In making this finding we have considered that new employees hired by the Employer in the classifications covered by the contract had a starting salary ranging from $90 to $95 per week; 13 that part-time employees had no guarantee of such earnings and that temporary employees had no guarantee of continued employment (all new employees had a 90-day probationary period during which they were required to make payments on their initiation fees); that no other union in the Philadelphia area representing technicians and crewmen charged compa- rable fees (the next highest fee was $150, charged by National Association of Broadcast Employees and Technicians); and the fact that the increase in fees for employees of the Employer herein effected in Novem- ber 1957 was tenfold. All of these considerations lead to the conclusion that the $500 initiation fee was excessive as well as discriminatory. 14 13 We consider the starting wages or salary of greater significance in evaluating the initiation fee than wages or salaries that may later be earned, although we concede relevancy to the latter. We do not, therefore, find the fact that skilled technicians may earn as much as $200 establishes that the fee is not excessive. 14 The evidence offered by the Respondent in support of its claim that the initiation fee was required to insure enough income to enable it to operate falls short of such support. In any event we find that the Union's financial problems may not be solved by imposition of a fee which is either discriminatory or excessive under Section 8(b)(5). In the NA BET cases the union raised its initiation fee from a flat $150 for all employees to a sliding scale ranging from $150 to $1,000. Those earning under $119 per week paid $150. Those earning from $119 to $168 paid $500. Those earning from $168 to $212 paid $750. Those earning $212 or more paid $1,000. The Trial Examiner found at 164 NLRB 244-245: It is evident that the Respondent had a discriminato- ry motive in increasing the initiation fees. There can be no other conclusion when the background of the Union's action is considered in relation to the scale of the increases and "the wages currently paid to the employees affected." In the case of NBC, it is 8 New York Local II, National Association of Broadcast Employees and Technicians, AFL-CIO (National Broadcasting Company, et al), 164 NLRB 242. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD established that, while the pay range of broadcast technicians is from $123 to $246, approximately 90 percent of the v.r. [vacation-relief] employees were employed at $130 a week. In the case of ABC, which maintained the same pay range for broadcast techni- cians, it is also established that most of the v.r. employees hired received from $130 to $140 a week. Since their employment is temporary, moreover, the v.r. employees cannot normally expect work of more than several months' duration. The impact upon them of an increase in initiation fees of more than threefold at the minimum and more than sixfold at the maximum hardly needs demonstration. The necessary result would be to confine vacation relief employment to broadcast technicians who were already members of the Union and who would not, therefore, be required to pay the increased initiation fees. That this was the objective of the Union is established, moreover, not only by the background evidence, showing the existence of the controversy between the Companies and the Union concerning the vacation relief employees but also by direct evidence of the Union's discriminatory motive. s s s s s The increase in the Union's initiation fees was, moreover, not only discriminatory but excessive. In New York City, Chicago, and Los Angeles, the broadcast technicians, who are represented by locals of the International Brotherhood of Electrical Workers in these cities, and whose pay is approximately the same as that of the broadcast technicians employed by ABC and NBC, are charged initiation fees of $100 or $125. The NABET local that represents the broadcast technicians employed by NBC in Chicago charges an initiation fee of $25 when the weekly base salary of the applicant ranges from $119 to $239. The NABET local that represents the broadcast technicians employed by NBC in Los Angeles, and whose pay range is the same as in Chicago, charges an initiation fee of 10 percent of the monthly base salary, which would amount to approxi- mately $50. These comparisons more than suffice to show how excessive the present initiation fees of Local 11 really are. Indeed, it is fair to say that any initiation fees adopted from discriminatory motives must in the nature of things be excessive. The discriminatory object can hardly be otherwise accomplished. It is also apparent that an increase in initiation fees of more than threefold at the minimum and more than sixfold at the maximum must be excessive, at least presumptively. However, the Union produced no evidence to show that the increase in initiation fees was justified under all the circumstances. It also seems quite immaterial that there is no evidence that particular applicants for employment actually refused to accept employment because of the 9 I omit the initiation fees charged by Texas, Alabama, and Mississippi locals as immaterial since the Board did not rely on analogous figures from Chicago and Los Angeles in NA BET, supra. 10 Respondent has managed to provide the benefits without charging a $1,000 initiation fee for at least 25 years. The only evidence offered by Respondent that financial considerations entered into its decision to increase the initiation fee is the following: increase in the initiation fees, or that the Union attempted to get anyone discharged for failure to pay the increased initiation fee, or that the Union may have been willing to accept payment of initiation fees in installments, or that employees of NBC and ABC may work overtime, and thus earn pay in excess of their base salaries. The reasonableness of the initiation fees must be judged in terms of their possible rather than their actual effects, and in terms of the power which they gave the Union rather than in terms of the actual exercise of that power. [Footnote omitted.] The Board adopted the Trial Examiner's decision, with a modification in the order and notice. It noted at 164 NLRB 242,fn.2: In adopting the Trial Examiner's conclusion that Respondent's initiation fees were excessive, we need not rely on his findings with respect to the fees charged by NABET locals in Chicago and Los Angeles. When the lessons of these four cases are applied here the conclusion is equally inescapable that Respondent's $1,000 initiation fee is excessive. If the present base rate of $4.25 an hour is taken as the "starting wage or salary" considered most significant by the Board in Triangle, supra, a New Orleans longshoreman earns $170 in a 40-hour workweek. Thus an initiation fee of $1,000 is nearly six times greater than his weekly wage. Respondent's $1,000 initiation fee is twice that of its sister local in the Port of New Orleans .9 While Respondent stresses the fact that it provides death and medical benefits for its members over and above those they received under the contract with the Association, it has not proved that the increase from $500 to $1,000 was required to pay for them or to meet any of its other financial obligations.10 Moreover, the discriminatory motive for the $1,000 fee is admitted. As NABET, supra, points out, any initiation fees adopted from discriminatory motives must in the nature of things be excessive. The discriminatory object can hardly be otherwise accom- plished. Consequently, it is obvious that Respondent's $1,000 initiation fee is excessive as well as discriminatory within the meaning of Section 8(b)(5). In addition, as evidenced by Ben Davis' experience, it obviously restrains and coerces casual longshoremen in the exercise of their right to join Respondent. Therefore, I find that it violates Section 8(b)(1)(A) of the Act as well as Section 8(b)(5). 2. Section 8(b)(2) The complaint also alleges that Respondent has violated Section 8(b)(2) and (1)(A) of the Act by causing employer- members of the Association to terminate and/or refuse to employ Ben Davis "pursuant to its demand that Davis pay the $1,000 initiation fee . . . and because of Davis' refusal to pay said initiation fee." The General Counsel's theory is a derivative one, requiring a preliminary finding that Respondent has violated Section 8(bX5). Davis was Q. . . . In recent years, has the price of drugs and medicine gone up with the rest of the price structure in our inflationary stage? A. Yes, it has gone up tremendously. TRIAL EXAMINER: That almost falls in the area of judicial notice, doesn't it? MR. HESS : Yes, Sir. LONGSHOREMEN'S LOCAL UNION NO. 1419 679 knocked off on August 7, 1969, pursuant to a valid union- security clause. He has since failed to get employment as a casual because he lost his identification card through the legal operation of that clause. The only way he could have retained his identification card and thus have been hired along with others in the registered work force ahead of others in the casual group to which he reverted was by paying the initiation fee and joining Respondent. There- fore, the initiation fee being illegal, he has failed to obtain work since August 7 because Respondent has denied him membership on a ground other than his failure to tender a nondiscriminatory and nonexcessive initiation fee uniform- ly required as a condition of acquiring or retaining membership. The logic of this position is also inescapable. I have already found that Respondent's initiation fee violates Section 8(b)(5) and 8(b)(1)(A). I find that it also caused members of the Association to discriminate against Davis in the period following August 7 by not hiring him in violation of Section 8(a)(3), thereby violating Section 8(b)(2) of the Act. Upon the foregoing findings of fact, and on the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The New Orleans Steamship Association is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Longshore Workers, International Long- shoremen's Association, Local Union No. 1419, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By increasing its initiation fee from $500 to $1,000 on Apri114, 1969, and by maintaining it at that level thereafter, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(5), (2), and (1)(A) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has violated Section 8(b)(5), (2),and'(1),(A) of the Act by charging an initiation fee of $1,000, I will recommend first that it cease and desist from engaging in that or like or related activities. The only facet of this record which presents even the slightest element of doubt is the question of whether Ben Davis actually lost work after August 7, 1969, because he was a casual and not a registered longshoreman. I have credited Davis' testimony that he attended the shapeup without success for some 2-1/2 months after August 7. I have also credited Respondent's evidence that the hiring of casuals was authorized by the Association on some days in this period. I do not consider this a credibility conflict which must be resolved on the basis of the record made before me. There are several possible explanations for this apparent discrepancy. I do not understand Davis' testimony to mean 11 In the event no exceptions are filed as provided by Section 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein that he showed up for the shapeup each and every day. It may well be that he did not show up on one or more days on which all casuals present were hired. In that case, he would not be entitled to recover for not working on that particular day. On the other hand, he may have been present on days when some but not all casuals present for the shapeup were hired. He would be entitled to a recovery for those days, as well as any day on which he showed up and all registered longshoremen were hired, since the central fact about the hiring system is that all registered longshoremen are offered employment before any casuals are hired. In any event, this is the sort of problem which is best left to the compliance stage of Board litigation. Therefore, I will recommend that Davis be made whole by Respondent for any earnings he may have lost through failing to be hired as a registered longshoreman between August 7, 1969, and the date on which Respondent undertakes to comply herewith. Such sum shall be less Davis' net earnings during this period. Backpay and interest thereon shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. There is no evidence in the record that any individual other than Davis lost work as a result of Respondent's increased initiation fee. Therefore, I will not recommend that the make whole provision of this 8(b)(2) remedy extend to longshoremen in New Orleans other than Davis. I will, however, recommend that Respondent notify the Associa- tion that it has no objection to the Association's returning Davis' identification card to him and that it will not attempt to invoke the union-security clause of its contract with the Association in order to knock him off for a period of 30 days thereafter in order to give Davis an opportunity to join Respondent by paying a nonexcessive and nondiscrimina- tory initiation fee. Finally, the General Counsel concedes that an initiation fee of $500 is not excessive within the meaning of Section 8(b)(5) in this case. Therefore, I will recommend that Respondent reimburse any members for any sums they may have paid as initiation fees in excess of $500 since April 14, 1969, with interest thereon to be computed as prescribed in Seafarers International Union of North America, Great Lakes District, AFL-CIO, 138 NLRB 1142, footnote 3. Upon the basis of the above findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following: RECOMMENDED ORDER ii General Longshore Workers, International Longshore- men's Association, Local Union No. 1419, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Charging an initiation fee of $1,000. (b) Causing or attempting to cause the New Orleans Steamship Association, in violation of Section 8(a)(3) of the Act, to refuse employment to Ben Davis or any other longshoreman who has been denied membership because of shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the operation of a discriminatory and/or excessive initiation fee. (c) In any like or related manner restraining or coercing employees in the exercise of 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 whole Ben Davis for any loss of earnings he may have suffered by reason of Respondent's causing him not to be hired as a registered longshoreman after August 7, 1969, in the manner set forth above under "The Remedy." (b) Notify the New Orleans Steamship Association that it has no objection to the Association's returning Davis' identification card to him and that it will not attempt to invoke the union-security clause of its contract with the Association in order to knock him off for a period of 30 days thereafter in order to give Davis an opportunity to join Respondent by paying a nonexcessive and nondiscrimina- tory initiation fee. (c) Refund to any members who have been charged initiation fees of more than $500 any amounts they have actually paid in excess of $500 in the manner set forth above under "The Remedy." (d) Post at Respondent's office or union hall copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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. (e) Mail to the Regional Director for Region 15 copies of the attached notice marked "Appendix" for posting by the New Orleans Steamship Association at its place of business in New Orleans, Louisiana, in places where notices to employees are customarily posted, if the said Employer is willing to do so. Copies of said notice to be provided by the Regional Director, after being signed by a representative of Respondent, shall be forthwith returned to the Regional Director for said posting. (f) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.13 12 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 "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT charge an initiation fee of $1,000. WE WILL NOT cause or attempt to cause the New Orleans Steamship Association to refuse employment to Ben Davis or any other longshoreman who has been denied membership because of the operation of a discriminatory and/or excessive initiation fee. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement made in accordance with the provisions of Section 8(a)(3) of the Act requiring membership in us as a condition of employment. WE WILL make whole Ben Davis for any loss of pay he may have suffered as a result of our causing him not to be hired as a longshoreman after August 7, 1969. WE WILL notify the New Orleans Steamship Association that we have no objection to the Associa- tion's returning Ben Davis' identification card to him and that WE WILL NOT attempt to invoke the union- security clause of our contract with the Association in order to knock him off for a period of 30 days thereafter in order to give him an opportunity to join us by paying a nonexcessive and nondiscriminatory initiation fee. WE WILL refund to any of our members who have been charged initiation fees of more than $500 any amounts they have actually paid in excess of $500 with interest at 6 percent. Dated By GENERAL LONGSHORE WORKERS, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL UNION No. 1419, AFL-CIO (LABOR ORGANIZATION) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Region 15, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.