Local 1838, Intl. Longshoremen's Assn.

LOCAL 1838, INTL. LONGSHOREMEN'S ASSN. Local 1838, International Longshoremen's Association, AFL-CIO, and Charles Rogers, its President (Ryan Stevedoring Company, Inc.) and Howard Stephens, Jr., Joe Louis Barnett , Joseph J. Carter, Ronald Moody. Cases 11-CB-241-1, 11-CB-241-2, l1-CB-241-3, and I I-CB-241-4 October 29, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On June 30, 1969, Trial Examiner Eugene E. Dixon 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 desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent Union had not engaged in certain other unfair labor practices as alleged in the complaint, and recommended that the complaint be dismissed with respect to such allegation. Thereafter, the Respondent Union filed exceptions to the Trial Examiner's Decision and a brief in support thereof, 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 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 and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith Upon the record as a whole we cannot agree with the Trial Examiner that the General Counsel has sustained the burden of proving that the Charging Parties were discriminatorily denied referrals for employment as winchmen because of their lack of membership in the Respondent. To the contrary, the record amply supports the Respondent's contention, which the Trial Examiner rejected as pretextual, that it refused to refer the Charging Parties to jobs as winch operators after May 8, 1968,2 because of the latters' willful refusal on that date to report for 'The Regional Director issued a consolidated complaint based upon the charges against the named Respondent as well as charges against the Ryan Stevedoring Company, Inc, in Cases II-CA-3654-1, -2, -3, and -4. At the hearing the Trial Examiner granted the General Counsel's motion to dismiss the complaint insofar as it alleged violations of the Act on the part of the said Company Accordingly, the caption is hereby corrected by deleting therefrom the references to the said charges against the Company 425 work with their assigned gangs. The facts are not in substantial dispute and are fully set forth by the Trial Examiner.' The Charging Parties, all members of sister locals of the Respondent, came to Southport, North Carolina, in 1966 and 1967 at the request of Charles Rogers, president of Local 1838 At that time Local 1838 was short of winch operators and was in the process of training men to perform this work. From the time of their arrivals in Southport, until the events of May 8, described below, the Charging Parties worked steadily out of the Respondent's hiring hall, mostly as regularly assigned winchmen on specific gangs. In November 1967 the Respondent entered into an exclusive hiring hall agreement with several stevedoring companies, including Ryan Stevedoring Company, Inc. That agreement required, inter alia, that the longshoremen in Southport be given seniority classifications, based on their length of service in the industry since 1957. In addition, it provided for the establishment of permanent gangs, the members thereof to be picked by the gang header on the basis of the aforementioned seniority roster. And, although the Charging Parties neither sought, nor were given, seniority classifications at that time, they continued to work regularly as winchmen on specific gangs or, if their gangs were not working, they were assigned to work as longshoremen on other gangs.4 By early May, some of the trainee winchmen were assigned to work in gangs on an irregular basis, and the Charging Parties became apprehensive about their status as winch operators. On May 8, when the critical events herein occurred, the Charging Parties were scheduled to work as winchman with their regular gangs. Instead of going to work, however, they returned to the hiring hall after the shape-up to talk to Rogers about their winchmen's jobs and their lack of seniority ratings. Rogers told the men to hurry and get to work, that he would discuss their problems after work that day. When the Charging Parties repeatedly refused to go to work and continued to insist on having their discussion with Rogers immediately, Rogers told them "you are fired" and dispatched four other men to work in their places. That evening Rogers called a meeting of the Local 1838 membership to discuss the Charging Parties' conduct in refusing to work that day. After a lengthy discussion, the membership 'Unless otherwise indicated, all dates are in 1968 'We note the following inadvertent errors in the Trial Examiner's Decision In the introductory "Statement of the Case" the name of Respondent Union's president should read "Charles Rogers" rather than "Charles Ryan" and, in the eighth full paragraph of part "III The Unfair Labor Practices," the name "Charles Moody" should be "Ronald Moody " ?he complaint does not allege and the record does not show, that seniority ratings were denied the Charging Parties because of their lack of membership in the Respondent It appears, rather, that as qualified winchmen, the Charging Parties did not need seniority ratings and were, in fact, treated preferentially with respect to job referrals until May 8, 1968 179 NLRB No. 66 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD voted that the Charging Parties be denied assignment as winch operators in the future because of their conduct that day, which the members considered to be irresponsible. From that day the Charging Parties have not been referred or hired as winch operators. The Charging Parties were, however, given seniority ratings on June 18 and, since that time, have been referred for employment as regular longshoremen. In concluding that the Respondent violated Section 8(b)(1)(A) and 8(b)(2) of the Act, the Trial Examiner found that the presence of a no-strike clause in the Respondent's collective-bargaining agreement is immaterial. He reasoned that, even if the Charging Parties' refusal to work on May 8 was unprotected, it did not justify the Respondent's retaliatory action in denying them future referrals as winchmen. He concluded, therefore, that the Respondent's asserted reason for denying the Charging Parties . referrals as winchmen was pretextual and that the real reason therefor was their lack of membership in Local 1838. We disagree. Based on the record as a whole, we are unable to find that the Respondent, in refusing to refer the Charging Parties for employment as winchmen after May 8, was motivated by their lack of membership in local 1838. Unlike the Trial Examiner, we find that the presence of a no-strike clause in the Respondent's collective-bargaining agreement is significant in assessing the Charging Parties' conduct on May 8 and the Respondent's reaction thereto. For, in light of that provision,' the Charging Parties' willful refusal to work on May 8, whether termed a strike or a walkout, clearly violated the Respondent's bargaining agreement and, hence, was unprotected by the Act. The fact that this was a first offense or that the safety of fellow employees was not involved cannot justify an inference that nonmembership was a consideration. In our opinion the Respondent was justified in taking measures to insure the integrity of its contract. Whether the action taken by the Respondent to that end was unduly harsh, as the Trial Examiner found, is not for the Board to decide in these circumstances.6 We base our decision solely on our conclusion that the record as a whole fails to establish that the Respondent acted to discriminate against the Charging Parties because of their lack of membership in the Respondent, and the General Counsel, therefore, has not sustained his burden of proof.' Accordingly, we shall dismiss the complaint in its entirety. 'That provision states that , during the term of the agreement " the Union agrees that there shall not be any strike of any kind or degree whatsoever, walkout, suspension of work, curtailment or limitation of production, slowdown, or any other interference or stoppage, total or partial, of the Employer's operation for any cause whatsoever, `Pacific Maritime Association , et al, 155 NLRB 1231, 1234-35 'Ibid ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint in this case be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E DIXON, Trial Examiner- This proceeding brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Southport, North Carolina, on December 10, 11, and 12, 1968. The individual charges in Cases 11-CA-3654-1,-2,-3, and-4 and 1l-CB-241-1,-2,-3, and-4 were filed and served on June 26, 1968. Acting on behalf of the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board) the Regional Director of the Board's Eleventh Region (Winston-Salem, North Carolina) on August 30, 1968, issued an order consolidating the cases together with a complaint and notice of hearing The complaint alleged in substance (I) that Local 1838, International Longshoremen's Association, AFL-CIO and Charles Ryan, its president, had engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act by causing and attempting to cause Ryan Stevedoring Company, Inc to discriminate against the charging individuals in violation of Section 8(a)(3) of the Act by refusing them employment because of their lack of membership in the Union and "because of other arbitrary and unfair considerations", and (2) that Ryan Stevedoring Company, Inc., by refusing to hire the charging parties because of the above considerations interfered with, coerced and restrained them and discriminated against them in violation of Sections 8(a)(1) and (3) of the Act At the hearing the General Counsel moved to amend the complaint to allege similar violations by Respondents against Matlan Bellamy "because he questioned Respondent Union's hiring practices and/or because of other arbitrary and unfair considerations " The motion was granted over Respondent Union's objection. In their duly filed answers Respondents denied the commission of any unfair labor practices. At the beginning of the hearing the General Counsel also moved to dismiss the allegations of the complaint alleging any violations of the Act on the part of Respondent company The motion was granted without objection or opposition Upon the entire record and from my observation of the witnesses I make the following FINDINGS OF FACT I THE EMPLOYER'S BUSINESS Ryan Stevedoring Company, Inc., is a corporation maintaining its principal office and place of business at Mobile, Alabama, from which headquarters it is engaged in the business of providing stevedoring services at a number of ports in several States, including Sunny Point, North Carolina. During the 12 months preceding issuance of the complaint, the Respondent Company received in excess of $1 million performing stevedoring services for LOCAL 1838, INTL. LONGSHOREMEN'S ASSN. the United States Army's Eastern Area, Military Traffic Management Service, at its facility located at Sunny Point, North Carolina. At all times material Ryan Stevedoring Company, Inc., has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ii. THE LABOR ORGANIZATION Local 1838, International Longshoremen's Association, is a labor organization within the meaning of Section 2(5) of the Act. ill. THE UNFAIR LABOR PRACTICES On November 14, 1967, Wilmington Local 1462 together with Southport Local 1838 of the International Longshoremen's Association entered into an exclusive hiring agreement with five stevedoring companies operating in Wilmington and Southport, North Carolina. Among the five was Ryan Stevedoring Company, Inc. The agreement required that the longshoremen in both Wilmington and Southport, whether they belonged to the Union or not, be given classifications on the basis of the amount of time they had been employed in the industry since 1957. In this connection it provided for five classes of seniority beginning with the classification A (the highest in seniority) descending in the order of importance through classifications B, C, D, and Casual, the latter being the lowest in seniority. While it was theoretically possible for a nonunion longshoreman to be in an A classification, the fact is that all those placed in higher classifications are members of the Union while none of the men in the Casual classification are union members. The agreement provided for the establishment on a certain date of permanent gangs' to be picked by the headers2 on the basis of the established seniority roster, the headers to exhaust first all of the "class A men so long as available and qualified" before choosing class B men which class in turn would be exhausted on the same basis as above before dropping down to the next highest classification with the Casuals being the last to be selected Replacements to the permanent gangs and the hiring of extras all are required to be picked on this basis The only qualification to the application of the foregoing seniority in the hiring process in addition to the one already noted (i.e., that the men in the higher classifications be "available and qualified") was that "union membership, policies or requirements, shall play no part in the selection of applicants for job referrals All hiring of the longshoremen except for occasional emergency replacements or requirements is done at the union hiring hall daily at what is known as the shapeup. The hiring hall is located 5 or 6 miles from the loading area known as the Sunny Point terminal. The gang members who are selected for work are customarily transported from the hall to the terminal by a company bus. In accordance with the seniority agreement four permanent gangs were established out of the Southport 'Gangs are made up of the header or foreman , two winchmen, a deck man, a lift operator , holdmen and outside men They work as a team in the loading and unloading of seagoing cargo. 'The headers, all of whom are union members, are the Employer's representatives and the only ones authorized to hire or fire longshoremen on behalf of the Employer The headers are required by the seniority agreement "to cooperate with Locals 1426 and 1838 in carrying out in all respects the seniority plan 11 427 local, composed essentially of all A classification men ' Because of the increased demand for longshoremen occasioned by acceleration of the Viet Nam war effort four additional gangs were also established out of the Southport local made up essentially of B classification men. Local 1838 of Southport was formed only a few years ago apparently for the purpose of servicing the Army's Sunny Point terminal. With accentuation of the Viet Nam involvement Local 1838 began experiencing difficulty in meeting the increasing demands for stevedors at Sunny Point. This was particularly true with respect to winchmen As the result of its need for experienced winchmen Local 1838's president Charles Rogers in 1966 encouraged the charging parties to leave their own locals (Moody and Stephens from the Mobile local and Carter and Barnett from the Pascagola local) to come to Southport to help ease the shortage of winchmen. All four accepted the invitations, Moody and Stephens arriving in mid-1966 and Carter and Barnett at the beginning of 1967. From the times of their arrivals until May 8, 1968 the four men worked steadily - mostly as regularly assigned winchmen to specific gangs .' If for some reason work as winchmen was not on occasion available for them they were given the opportunity to work in other positions on the gangs. This was the result of orders from the Union's president whose purpose was to give the four winchmen every incentive to remain in the Southport area. When the seniority agreement was entered into in late 1967 and the seniority rosters of the stevedors established, no classifications were bestowed upon the charging parties notwithstanding that they obviously had sufficient qualifying time in the industry to receive classifications as was later demonstrated.' By May 8, 1968, the Charging Parties were beginning to be replaced as winchmen by trainee members of Local 1838. Not having seniority classifications at this time' their failure to be selected as winchmen at the shapeup meant that the charging parties had no certainty of employment out of the hiring hall and would rank below all those on the seniority roster for work. Concerned about the matter they decided to talk to the union president about it which they did on the morning of May 8. According to the testimony of Charles Moody, they appeared at the hall that day at about 6.35 a m. along with about 200 longshoremen there for the shapeup At about 7 a.m. they left the hall in one of their cars to go to a restaurant. Another longshoreman, J. T. Price, was with them when they drove off but changed his mind about accompanying them and was taken back to the hall 'There is no seniority ranking within a classification , i e , all A's are equal in seniority nor is there any seniority or other order of rating between the types of skills involved, i e , a winchman's seniority is based on his hours in the industry as is any other longshoreman's seniority notwithstanding that a winchman requires special skills for his job as compared to some of the other members of his gang 'I do not credit Union President Rogers' testimony that at no time were these men considered regular members of a gang 'The seniority agreement provides that no seniority classification may be granted to individuals already holding a seniority classification in another local's jurisdiction The charging parties maintained that they had no such ratings in their home locals while the Union officials testified to the contrary. Whether they did or did not have such classifications in their home locals would seem to be immaterial in view of action ultimately taken by the Southport Seniority Board giving them classifications in the Southport local 'Notwithstanding their original lack of classifications under the seniority agreement after it was established their employment out of the hiring hall had continued unabated until about May 8 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so that he could catch the Sunny Point 'bus At about 7 30 according to Moody the four returned to the hall where they encountered Rogers About what was said Moody testified as follows Well, the first person I saw was Mr Charles Rogers, and he said, "Moody, or" and he saw Barnett, Carter, and Stevens and he cut that off He said, "what are you fellows doing here?" And I said, "we want to talk to you, Charles, about our winch job or our classifications " He said, "you have no classifications." He said, "fellows, get on that job." I said, "we got time to get on this job"' He said, "you have no classification Get on that job " He said, "we'll straight that out this evening." I said, "no, charles, we need to talk now " He said, "look, fellows, get on this job or else go to hell, back to Mississippi and Alabama " And I said, "well, you don't tell us where to go, Charles He said, "you are fired." In his version Rogers testified that it was 8 15 that morning when the four men came back to the hall, that when he told them to go to work they refused to do so until they got "something straight" with Business Agent Hewett, that he told them that it was impossible to straighten out this matter then and promised to do so that evening after they finished work, that they again refused to work whereupon he accused them of engaging in a wildcat strike and they said, "call it what you may " Whatever the truth here ( and I surmise that it is a little bit of each version) there is agreement that the men were asked to go to work but that they insisted on discussing their "winch job or .. classifications" instead' and that they did not work that day. That evening a meeting of the union membership was called at which a lengthy discussion of the charging parties' status took place resulting in a unanimous vote by the body in effect to refuse to work with them as being "unsafe to work with" because of their having "quit their jobs without cause and/or giving the local due notice... . From that date until June 26, 1968, none of the charging parties worked out of the hiring hall at all notwithstanding that they appeared at the shapeup many times during that period ' Moreover, even after they again started working out of the hall after receiving their seniority classifications (as will be shown) they have not worked as winchmen. As a result of the Union's action the charging parties made a trip to New York City to see the Union's international president and also discussed their problem with John L McCarron, Jr , vice president and general superintendent of Ryan Stevedoring 10 As a result of their efforts, on June 18, 1968, the four men were given official classifications on the Union's seniority roster, Moody and Stephens as "B" and Barnett and Carter as "C " 'The job started at 8 o'clock 'There is no doubt in my mind that in accordance with previous practice the men were scheduled for work that day as winchmen in their respective gangs and that they knew that they were so scheduled I make this finding notwithstanding some testimony of their part to the contrary 'Admittedly they did not appear at the shapeup each and every day during that period , having on one or two occasion been away from Southport for various reasons and length of time However I credit their testimony that they did shapeup many times during that period "According to McCarron 's credited testimony, after talking to the four he took the matter up with Union President Rogers Rogers told him that he felt that the four men had done something not consistent with the Union's regulations , that the Union was not going to allow them to work and that if the Company tried to work the men it "would not receive any labor from the local at all " As I understand the General Counsel's position, it is his contention that the Union's opposition to the hiring of these men as winchmen and its efforts to prevent such hiring is the conduct he relies upon to establish the allegations in the complaint of violation by the Union of Section 8(b)(l)(A) and (2) of the Act Respondent's defense is that the action of the Union was not grounded in discrimination against these individuals but was motivated by its desire to protect the Union from harmful and illegal conduct such as it claims was demonstrated here. Whether or not the failure of the four winchmen to work on May 8 violated the labor agreement or was protected or unprotected activity is immaterial in my opinion Even if it was unprotected I do not believe that having occurred once in the long record of employment of these men it could be said to have amounted to a course of action on their part demonstrating an inclination to disregard the rights of their fellow gang members." Moreover, whatever adverse affect the charging parties' conduct of May 8 had with respect to their fellow workers it could hardly be said that it affected their safety Accordingly, in the light of the entire record here I am convinced and find that the Union's purpose here was to cause the charging parties' the loss of winchmen jobs because of their lack of membership in the Southport local,': and that it seized upon their failure to work on May 8 as a pretext to justify its resolution and action in support of that purpose. Such discrimination clearly tends to encourage union membership and is prohibited by Section 8(a)(3) of the Act And the cause or attempt to cause such discrimination (as demonstrated here by the Union's threat to the Company to withhold all labor if the Charging Parties were permitted to work) is prohibited by Section 8(b)(l)(A) and (2) of the Act Bellamy Edward Matlan Bellamy had been a member of Respondent Local since 1956 and a Ryan header for 3 or 4 years as of December 2, 1968. At the shapeup of his gang on that date Bellamy admittedly selected three casuals out of their proper order As to what then happened he testified as follows. I finished filling out my work card and I went to the door and I called my men, the gang's names out, for them to get on the bus. I went by the office and returned my book and work card into the window, and -'The collective-bargaining agreement under which Ryan Stevedoring was operating with the Union contains a no strike clause There is no question but that the unauthorized absence of a winchman from a gang may hinder its ability to operate or to operate efficiently and that a result of such absence may be a loss in earnings for the gang members However, in the May 8 matter no loss of pay was incurred by reason of the failure of the four winchmen to work "That the Union's purpose was effectively carried out is shown not only by the complete lack of work by the four from May 8 to June 26 but by an admission of Business Agent Hewett in his testimony When asked under what circumstances would he call the Wilmington Local to see if they had any winchmen available he answered that the practice before May 8 "was to use all the winchmen available in the Southport area before calling anywhere After May 8, the practice was that after we used what winchmen we had , except these four men here , we would call Wilmington and get wmchmen " (Emphasis supplied ) That this discriminatory motive continued even after the four men were classified under the seniority agreement is also demonstrated by Moody's credited testimony that he was told by Hewett that he didn 't care what the seniority board had decided about them , that he considered them as being Casuals to be worked as Casuals LOCAL 1838, INTL. LONGSHOREMEN'S ASSN. 429 when I was going to the bus, Mr. Hewett called me back into the office He said, "You realize - remember what I told you this morning earlier9" and I said, "Yes" And he said, "Well, do you know what this means" I said, "No, I hired these men because I had to have them " He said, "You understand though what it means9" And I said, "Yes, sir, I do " Then he said, "All right." And I thought he said, you know, "I'll have to put you before the body "" Bellamy and his gang including the three casuals he had selected worked on December 2 The following morning at the shapeup Business Agent Hewett called Bellamy into the office and read to him the following letter On October 8, 1968 in the Local's regular meeting, the membership accepted the recommendation of the Local's executive board as follows- That all headers and sub-headers hiring extra men (casuals) must rotate from the Casual Board straight down the line, and if a header calls a casual's name from the Board and informs him of the type of work he is hired to do, and said man fails to perform such duty that the header hired him for, he may be replaced at the option of the header Penalty for failing to abide by this regulation is that any header or sub-header will automatically be suspended from carrying a gang, however he will be eligible to work, in his gang. Mr Bellamy, you violated the rule and regulation of this Local, and as of December 3, 1968 through December 17, 1968 you are suspended from carrying a gang Violation was made December 2, 1968, when you carried L-Bernard No.1 3618 and W. W. Hewett No 13640 and I ReedNo. 13718 out of turn At the finish of the letter according to Bellamy's further testimony, he asked if he would be given any time to make his defense Hewett replied in the negative saying that the suspension was effective immediately. Bellamy said, "Well, I see one casual that I hired that day, but you haven't got me down here as hiring out of rotation " Hewett asked who that was and Bellamy answered, "Mr. Moody I hired him that day." Hewett replied, "Well, him, he can be hired as a casual without going through the casual board." When Hewett indicated to Bellamy that he could work in the gang that day even though he would not be allowed to carry it Bellamy replied, "Well, if I can't carry my gang, I won't be working in it, but I will be going to Sunny Point " Hewett said, "Oh, no, you won't . I'll phone the guards and have them block you at the gates." At this point Bellamy left the hall and decided to call McCarron of the Ryan Company at Sunny Point This he did telling McCarron about his 15-day suspension McCarron asked the reason for the suspension and Bellamy said, "for hiring three men, three casuals that wasn't in rotation on the board " McCarron asked if he would like to come down and talk to him about it and Bellamy replied that he would but that Hewett had said he was going to have the gate blocked by the guards. McCarron then said would you like to come down and meet me at the gate to talk about it and Bellamy said that he would. This they did at about a quarter to 9 The following day Bellamy was back at work as header of his regular gang. Bellamy testified about attending a meeting of the gang headers called by Local 1838 about mid-November. At this meeting Rogers had said that he had been informed by his business agent that some headers were hiring men "I e , put him up for disciplinary action that did not belong to the local before men who did belong and that the practice "would not be continued " As Bellamy got up to leave Rogers said, "All right, I'm going to put you before the body " The following day according to Bellamy's further testimony, he and a couple of other headers were discussing the previous night's meeting At this point Business Agent Hewett came into the area. Bellamy asked Duval to ask Hewett who he was referring to in the meeting when he said that he wanted all of his men hired first Duval called Hewett over and started to ask him the question but Hewett walked away. At that point Bellamy said, "Percy . are you referring to the two men from Alabama and the two men from Mississippi last night?" Hewett replied, "Yes, sir, that's right and the ones in their class and that's what your president said, and I advise you to do that." It seems to me that on this evidence it can hardly be said that the I day of work that Bellamy missed on December 3 was the result of any action whatsoever directed at Ryan Stevedoring Company by the Union. Bellamy did not work that day solely because of the threat to him by Rogers to have the guard at the Sunny Point gate prevent him from entering the premises. In any event, on its face the action of the Union would not seem to be the type of conduct that would tend to encourage union support or membership in violation of Section 8(a)(3) of the Act. All that the Union was ostensibly attempting to do was to insure that the headers hire casuals in rotation as required by the seniority agreement - certainly the opposite of a discriminatory approach. The General Counsel's position apparently is that (1) other headers as well as union officials paid no attention to the rotation of casuals (thus demonstrating some sort of disparity in the treatment of Bellamy in this matter) and (2) that Bellamy's discipline was in reprisal against him for hiring or offering the charging parties work contrary to the Union's purpose to prevent them from working. While there is some sketchy evidence to support the General Counsel's position there is substantial evidence to the contrary which I believe is sufficient to require dismissal of the Bellamy matter 10 Thus the evidence shows that another header, Ernest Joyner on a different occasion was suspended for the same reason as Bellamy. That the Union's action was in reprisal for Bellamy's attitude toward hiring the charging parties would seem to be negated by Bellamy's own testimony as to what Business Agent Hewett told him when he pointed out to Hewett that his letter of reprimand failed to list another casual, Moody," that he had hired out of turn that day Of course, the Union's failure to name Moody in the reprimand while naming the others may have been a subtle attempt to hide its real motive directed solely to the hiring of Moody, but I doubt that the Union's officials were that clever. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the "Finding as I do that no violation of 8(b)(2) of the Act occurred with respect to I day of work lost by Bellamy, even if it could be said that the Union was nevertheless attempting to cause discrimination by the Company against Bellamy for the remainder of the 15-day suspension, the remedy that I am recommending will protect Bellamy from future such conduct whether the complaint is dismissed regarding him or not "Bellamy's reference to Moody as a casual at this time (after Moody had been given a "B" classification ) is enigmatic to say the least 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Company's operations described in section 1, above, have a close, intimate, and substantial relation 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 Union has engaged in certain unfair labor practices , it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent Union caused and attempted to cause Ryan Stevedoring Company, Inc., to discriminate against employees because of their lack of union membership thereby encouraging membership in the Union it will be recommended that Respondent Union cease and desist from such action. It will also be recommended that Respondent Union make whole Howard Stevens , Jr , Joseph J. Carter, Ronald Moody, and Joe Louis Barnett for the loss of pay suffered by them as a result of the discrimination against them caused by Respondent Union , such payment to be made in a manner consistent with the Board policy set forth in F. W Woolworth Company, 90 NLRB 289, together with interest as set forth in Isis Plumbing & Heating Company, 138 NLRB 716. Since discriminatory action which tends to encourage or discourage union membership goes to the very heart of the Act, I shall also recommend that Respondent Union be ordered to cease and desist from in any manner infringing upon the right guaranteed employees in Section 7 of the Act Upon the basis of the foregoing findings of fact, and upon the entire record in the case I make the following: CONCLUSIONS OF LAW 1. Local 1838, International Longshoremen's Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Ryan Stevedoring Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3 By causing Ryan Stevedoring Company, Inc., to discriminate against Howard Stevens , Jr., Joe Louis Barnett, Joseph J . Carter, and Ronald Moody, Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(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 publication.]