Pacific Maritime Association

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pacific Maritime Association and Martin J. Kaplan, Joseph P. Auralle Marine Cooks & Stewards Union, Pacific District, Seafarers , International Union of North America, AFL-CIO and Martin J. Kaplan, Joseph P. Auralle Pacific Maritime Association and Matson Navigation Company andMartin J. Kaplan Marine Cooks & Stewards Union, Pacific District, Seafarers International Union of North America, AFL--CIO- and Martin J. Kaplan. Cases 20-CA-5126, 20-CA-5160, 20-CB-1893, 20-CB-1908, 20-CA-5814, and 20-CB-2115 July 29, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 30, 1970, Trial Examiner Richard D. Taplitz issued his Decision in the above-entitled consolidated proceeding, finding that 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. He also found that the Respondent Em- ployers and the Respondent Union did not engage in certain other alleged unfair labor practices and recommended that these allegations of the complaint be dismissed. Thereafter, the General Counsel filed exceptions -to the Trial Examiner's Decision and a supporting brief. The Respondent Union filed cross- exceptions and a brief in support thereof and an answering brief to the General Counsel's exceptions, and the Respondent Employers filed a brief and an answering brief to the General Counsel's exceptions.' 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 these cases 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 cross-excep- tions, the briefs and answering briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and' recommendations of the Trial Examiner as modified herein. 1. We agree with the Trial, Examiner that the allegations of the complaint that the Respondents violated the Act in the dispatch of Eugene Roberts ahead of the Charging Party, Kaplan, to the lounge steward's job on September 20, 1969, have not been established by a preponderance of the credible evidence. We further agree with the Trial Examiner that the assault on Kaplan did not constitute a refusal to dispatch in violation of Section 8(b)(2) of the Act, although such an assault clearly violates Section 8(b)(1)(A) of the Act. 2. We conclude that the Trial Examiner properly reinstated the settlement in Cases 20-CA-5126 and 20-CA-5160. However, we find merit in the Respon- dent Union's exceptions to the Trial Examiner's failure to reinstate the settlement agreement in Cases 20-CB-1893 and 20-CB-1908. We note that the, settlement agreement in the CB cases was narrowly drawn and that none of the parties in the instant, cases makes any serious claim that the parties to the settlement have 'not complied with the terms of that agreement. Furthermore, the common element between the Union's presettlement conduct and its postsettlement conduct is simply the Union's responsibility in' the hiring hall, in which it does most of its business. We are reluctant to equate the Union's responsibility in the hiring hall concerning refusals to refer because of matters relating to fees and assess- ments with the Union's-responsibility for the violent conduct of its agents, which has nothing to do with such'monetary fees and assessments, or with the right to be referred. Therefore, we conclude that the Union's subsequent independent violation of the Act in committing the assault was conduct so unrelated to the matters and conduct covered by the prior settlement agreement that there is no warrant for setting aside the settlement agreement. Accordingly, we do not adopt those portions of the Trial Examiner's Decision regarding the Union's presettlement conduct, but, instead, we shall order that the settlement agreement in Cases 20-CB-1893 and 20-CB-1908 be reinstated? We also hereby modify the Trial Examiner's Conclusions of Law by deleting his Conclusions of Law numbered 3, 4, and 5 and by renumbering the subsequent paragraphs accordingly. I Subsequent to the expiration of the time for filing briefs, the Charging Party filed a Request To Take Judicial Notice and the Respondent Umon replied with a Motion To Expunge from the record the Charging Party's Request. We hereby deny both the Request and the Motion, as the matter alleged is in any event immaterial to the issues in this case, and the Motion is therefore mooted. 2 Member Fanning dissents from this finding. In his view, the Trial Examiner properly related the Union 's assault on Kaplan to prior conduct of the Umon in the operation of its hiring hall violative of Section 8(b)(1)(A) with respect to Kaplan . Accordingly, Member Fanning would affirm the Trial Examiner's conclusion on this issue. 192 NLRB No. 48 PACIFIC MARITIME ASSN. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Union, Marine Cooks & Stewards Union, Pacific District, Seafarers International Union of North America, AFL-CIO, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from: (a) Restraining and coercing employees and appli- cants for employment at its hiring hall by assaulting any person because that person protests the manner in which the hiring hall is being operated. (b) In,any manner restraining or coercing employ- ees or applicants for employment at its hiring hall in the exercise of their rights guaranteed in Section 7 of the Act. Z. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its offices and hiring halls copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by the Union's authorized representative, shall be posted by the Union immediately upon receipt thereof, and be maintained, by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices tp° members are customarily posted. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not found herein, and that the settlement agreement in Cases 20-CB-1893 and 20-CB-1908 be, and it hereby is, reinstated. 8 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." APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT assault any employee or applicant for employment because said person protests the manner in which our hiring hall is being operated. 339 WE WILL NOT in any manner restrain or coerce employees or applicants for employment in the exercise of their rights guaranteed in Section 7 of the Act. MARINE COOKS & STEWARDS UNION, PACIFIC DISTRICT, SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO (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 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, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Trial Examiner: This case was tried at San Francisco, California, on July 28, 29, and August 4, 5, 6, and 7, 1970. The complaint dated January 27, 1970, as amended on April 9, 1970, alleged that the Marine Cooks & Stewards Union, Pacific District, Seafarers International Union of North America, AFL-CIO, herein called the Union, violated Section -8(b)(2) and (l)(A) of the National Labor Relations Act, as amended, and that Pacific Maritime Association, herein called the Association, and Matson Navigation Company, herein called Matson, violated Section 8(a)(3) and (1) of the Act. The answers, as amended, filed by the Union, the Association, and Matson, admit some and deny other factual allegations of the complaint but deny any violation of the Act. The complaint was based on the charges set forth in the caption. They were consolidated upon issuance of the complaint. The charge in Case 20-CB-1893 filed on July 25, 1968, and amended on November 18, 1968, by Martin J. Kaplan against the Union, and the charge in Case 20-CB-1908 filed on August 14, 1968, by Joseph P. Auralle against the Union, led to an informal settlement agreement dated May 15, 1969, signed by the Regional Director of Region 20 of the National Labor Relations Board, the Union, Kaplan, and Auralle. Under the terms of the settlement, the Union paid Kaplan $3,060, paid Auralle $20.40, and posted a notice to all members stating in substance that it would not require as a condition for registration or dispatch from, its hiring hall .that applicants 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay union assessments or installments thereon, quarterly dues or service fees before they were due, or initiation fees or installments thereon before the applicant was eligible for membership in the Union. The notice also provided that the Union would not cause or attempt to cause any member of the Association to deny employment to an applicant because of such failure to pay. The posting period was to be 60 days. The charge in Case 20-CA-5126 filed on July 25, 1968, and amended on November 18, 1968, by Kaplan against the Association, and the charge in Case 20-CA-5160 filed on August 14, 1968, by Auralle against the Association, led to an informal settlement agreement dated May 15, 1969, signed by the Regional Director, the Association, Kaplan, and Auralle. That agreement made the Association jointly liable for the money due Kaplan and Auralle and further provided for the posting of a notice to all employees which was similar to the one posted by the Union. Both settlement agreements contained nonadmis- sion clauses, withdrew a complaint which had previously issued, and provided that contingent upon compliance with the terms of the settlement agreement no further action was to be taken on those cases. On October 30, 1969, Kaplan filed two new charges. In Case 20-CB-2115, he alleged that on September 20, 1969, the Union violated Section 8(b)(1)(A) and (2) of the Act by using physical violence and by refusing to dispatch him. In Case 20-CA-5814 he alleged that the Association and Matson refused to dispatch him because of his protected concerted activities. By order dated January 27, 1970, the Regional Director for Region 20 of the Board withdrew his approval from the settlement agreements. The reason given for that withdraw- al was that the Association and the Union had failed to discharge their obligations under said settlement agree- ments. On the same date the Regional Director issued an order consolidating cases, consolidated complaint and notice of hearing based on the charges that had been the subject matter of the settlement agreements and the two charges filed subsequent to the agreements. All parties appeared at the hearing, were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs which have been carefully considered were filed on behalf of the General Counsel, the Union, the Association, and Matson. violated Section 8(b)(1)(A) of the Act by assulting Kaplan because of his protected concerted activities. 3. Whether the settlement agreements described above were properly set aside, and if they were-(a) whether in 1968 the Union and the Association violated Section 8(b)(1)(A) and (2) and 8(a)(1) and (3) of the Act by -requiring, as- a condition for -dispatch from the hiring hall, that Auralle pay to the Union certain assessments and service fees which were not owing and (b) whether in 1968 the Union and the Association violated the same sections of the Act by refusing registration at the hiring hall to Kaplan until he made an installment payment on the Union's initiation fee at a time when full membership was unavailable to him. Upon the entire record2 of the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE ASSOCIATION AND MATSON The Association is a California corporation with its main office and place of business in San Francisco, California. It is an association of various employers in the shipping and stevedoring industry on the Pacific Coast and is organized in part for negotiating labor contracts with the collective- bargaining representatives of the employees of its employ- er-members. Matson is one of those employer-members. The Association bargains with various labor organizations, including the Union, and has executed collective-bargain- ing agreements. The employer-members of the Association annually perform services in the transportation of goods and passengers between California and other states and foreign countries valued in excess of $50,000. The complaint alleges, the answers admit,3 and I find that the Association and its employer-members, including Matson, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. U. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answers admit, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. Issues 1. Whether on or about September 20, 1969, the Union and the Association and Matson, through their participa- tion in an exclusive referral system, violated Section 8(b)(1)(A) and (2) and 8(a)(1) and (3) of the Act by refusing to dispatch Kaplan from the hiring hall to employment with Matson because Kaplan had filed cases with the Board which had led to settlement agreements, because of Kaplan's attempt to enforce shipping rules governing the hiring hall, and/or because of other protected concerted activity., 2. Whether the Union on or about September 20, 1969, Iii. THE ALLEGED UNFAIR LABOR PRACTICES A. The Hiring Hall The Union and the Association, acting on behalf of its employer-members , including Matson, were parties to a collective-bargaining agreement, herein called the contract, covering employees in the steward departments of the employer-members , which by its terms was effective from June 16, 1965, to June 15, 1969. Since that time those parties have given effect to an interim agreement to continue that agreement in full force and effect. Certain amendments have been made to the contract but none i This reflects the bill of particulars stated on the record by the General granted. Counsel in amplification of section VIII(e) of the complaint . 3 Pursuant to section 102.20 of the Board's Rules and Regulations, 2 Counsel for the General Counsel filed a motion to correct the Series 8, as amended, all allegations of the complaint not responded to in transcript of the record. In the absence of any opposition , the motion is the answer filed by Matson and the Association are deemed admitted. PACIFIC MARITIME ASSN. 341 which are relevant to this proceeding. Under the agreement the employer-members-of the Association agreed to secure all steward department personnel through the union hiring hall unless the hiring hall could not furnish an employee. The agreement states that no applicant for referral from the hall shall be discriminated against because of union membership or lack thereof (subject to a union shop clause) and that there shall be no discrimination because-of race or color. The contract provides that detailed shipping rules agreed to by the parties to the contract are to supplement and modify the provisions of the contract. The shipping rules and 'a supplement thereto which have been in effect since February 24,1965, were amended on or before July 1, 1968, when service fees were raised-from $25 to $28 and were also amended on September 26, 1967. As amended, they provide for different classes of seniority based upon prior employment. Class A seniority requires prior employment in a Class B status. Class B seniority requires prior employment in a Class C status or graduation from a training school run by the Union. Class C status requires certain employment in the industry. In addition there is a nonseniority classification for seamen who are not eligible for any of the other classes. All available jobs in the stewards departments are broken into three groups. Group 1 encompasses skilled craftmen such as cooks. Group 2 encompasses employees working in the hotel section of ships, such as waiters. Group 3 includes all other employees, such as messmen, porters, scullions, janitors, and in general is made up of the least skilled employees. The shipping rules provide for a joint classifica- tion committee made up of an equal number of union and employer representatives. Under these rules, all requests for seniority rating and all disputes over seniority ratings, registration for shipping, shipping, and seniority rights are to be referred to a joint classification committee. Anyone dissatisfied with the disposition of the case by the joint classification committee can proceed through a port committee in San Francisco to a referee or arbitrator as provided under the grievance machinery set out in the contract. The- supplement to the shipping rules provides that employees in seniority classification A must become and remain members of the Union. It also provides that employees with seniority classifications B and C and some without seniority are to pay a service fee of $28 per quarter. Other applicants who are not required to acquire and retain membership or to pay periodic service fees must pay a fixed fee each time they obtain a 90-day registration card. The operation of the San Francisco hiring hall is as follows: When an applicant registers at the hiring hall he 'is given a registration card that is good for 90 days. The date of registration is stamped on'it as is his seniority rating. When applying for registration, the applicant must show his service fee record or union book, or in some cases identification, together with his Coast Guard seaman's papers. If he is registered elsewhere, he is supposed to turn in his card at that time. Any time within 90 days from the issuance of the card, the applicant may apply for dispatch. 4 Group 1 seamen (skilled employees) have white cards, Group 2 seamen (hotel section employees) have blue cards, and Group 3 seamen (less skilled jobs) have red cards. 5 The Union's answer admits that Boschetti was an appointed Except in emergencies, applicants must be registered before they can -be- dispatched. Dispatching is done at fixed times at the hiring hall. Before the dispatching begins, the name of the ship, the type of job, and the number of employees needed for each job is posted on a large lighted board behind the dispatch counter. The dispatcher and usually two assistants stand behind the counter. The applicants stay behind a railing some 10 feet in front of the dispatch counter until their names are called. Before the dispatch begins, all applicants in a particular occupational group "throw in" their registration cards by giving them to the dispatcher. The disptacher sorts them according to seniority rating and subdivides each group within a seniority rating so that the oldest registration cards (within the 90-day limit) are on top of the pile and are called first. A separate call is made and therefore a separate pile of registration cards for each of the three occupational groups mentioned above.4 As the dispatcher calls each name, the applicant comes in front of the rail and up to the dispatcher's desk. The dispatches asks the applicant which of the jobs posted on the board he wants. The dispatcher then determines whether the applicant's previous experi- ence qualifies him for the job he seeks and inspects the discharges that the applicant was given when he terminated prior employments. If the dispatcher is satisfied that the applicant is qualified, he gives the applicant a dispatch slip and sends him for a medical examination. The next name from the pile of registration cards is then called. If someone in the hiring hall objects to the dispatch of an applicant for some reason such as lack of qualification, a protest can be made to the dispatcher on the spot, or a grievance can be filed with either the Union or the Association. On occasion, when such protests are made, the dispatcher has changed his mind. B. The Auralle Incidents The complaint alleges that about July 18, 1968, Joseph P. Auralle was required to pay to the Union certain assessments and in August 1968 was required to pay certain service fees which were not due, in violation of the Act. These matters had been the subject of the settlement agreement which was set aside upon issuance of the complaint. There is no allegation that Respondent took any unlawful action against Auralle after August 1968, the settlement agreement having been set aside because of alleged violations involving Martin J. Kaplan. Auralle began using the hiring hall for the first time on June 27, 1968. He had a nonseniority classification. On that date he spoke to Union Patrolman Roger Boschetti,5 who told him that he (Auralle) had to pay $30 for a registration fee which would be good for 90 days before he could ship out. Auralle gave him the $30 and was dispatched as a bar porter on the SS Lurline, a Matson ship. On July 9, 1968, the Lurline arrived in Los Angeles and Auralle spoke to Joe Gorin, a patrolman of the Union.6 Gorin gave him an identification card and told him that he would have to show it to the union representative when he returned to San patrolman and an agent of the Union within the meaning of Section 2(13) of the Act 6 The union's answer admits that Gorm was a patrolman and an agent of Respondent Union within the meaning of Section 2(13) of the Act. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Francisco. On July 18, .19,68, Auralle was in the San Francisco port where he talked to Union Patrolman Brooks Powell.? Powell checked Auralle'sidentification card and said that Auralle owed $28 for, assessments. Auralle answered that he' had only been shipping for about 20 days and he didn't have the money. Powell then said that Auralle would have to, pay $20 in assessments,- that he could not ship out unless he paid it, that the assessment was for 1958, and that Auralle would be required to pay every year since 1958. i uralle paid the $20 and Powell gave him a receipt which showed the $20 payment for assessments for 1958. Auralle shipped out once again and returned about August 8, 1968, to San Francisco, where he received a discharge from the SS Lurline. On August 9, he went to the hiring hall and spoke to.Patrolman Boschetti, explaining that he had left the -Lurline because he had family problems. Boschetti took out Auralle's file and told him that he owed $56 for two quarters. Though Auralle testified that Boschetti said the $56 was for; dues, it is clear that he- had reference to the service fee assessment which under the shipping rules was $28 per quarter. Auralle said that he would be gone for a few weeks and when he came back he would pay, Boschetti answered that he would retain Auralle's registration card until he got the $56.8 Section 4(b) of the contract provides that a nonseniority employee shall, as ; a condition of employment,. pay a periodicservice fee "for the quarter in which falls the thirty- first day of his employment ... and shall thereafter pay each quarter the ... service fee while employed (by covered employers)." The supplement to the shipping rules pro- vides that, the service fee, must be paid on the last day of the calendar quarter on which falls the 31st workday and that thereafter payment must be made on or before the last day of the calendar quarter for which the payment is made.9 Auralle worked from June 27 to August 8, 1968. Under the contract and the shipping rules set forth above, he only owed a service fee from the third quarter of 1968, and even that was not due until the last day of September 1968, The 31st day of his employment fell in July which is the third calendar quarter and he did not work in the fourth quarter. C. The 1968 Incidents Involving Kaplan - The complaint alleges that about July 25 and August 14, 1968, Martin J. Kaplan was required, as a condition of registration, to pay an installment on an initiation fee at a time when he was not eligible for full membership in the Union. These allegations were resolved in ' the settlement agreement'_ that was set aside with the issuance of complaint. The settlement agreement was set aside because of certain-incidents which occurred on September 20, 1969, which are discussed in detail below. Kaplan, who is 67 years old, has been a seaman since 1920. He has used, the Union's hiring hall since 1957. Kaplan received his Class A seniority rating and member- 7 Respondent Union's answer admits that A. B. Powell was a patrolman and an agent of Respondent Union within the meaning of Section 2(13) of the Act 8 The above findings are based upon the credited and uncontested testimony of Auralle. 9 The union constitution provides that service fees are due on the first day of each quarter. However, the constitution relates to internal union affairs and where matters affecting employment are concerned the contract ship in Respondent Union on September, 3, 1969. Before that time, he had, B""seniority and was not eligible for full membership --m the Union. Only persons with Class A seniority were eligible for full membership. Pursuant to the collective-bargaining agreement, only class A `employees had to join the Union within 31 days as a condition of employment. The union constitution ,provides . no person shall become a full`book member unless and until he has attained the highest seniority rating set out in,the said collective bargaining' agreement. Only full book members shall be entitled to vote and to hold, any office or elective job, except as otherwise specified herein." The,constitution also .provides for anf initiation fee of $250 payable, in installments as follows: "$20.00, when an applicant for membership first, begins payment, of service fees to the Union and $20.00 per year thereafter with the balance due payable within 30 days after the applicant obtains `A' seniority." About the-middle of July 1968 Kaplan went to the hiring hall to register and had a conversation with Ehniro LaRue, a dispatcher.10 LaRue told Kaplan that he could not register until he paid $100 that he owed for partial initiation fee. Kaplan told-LaRue that he-would give him $250 for the initiation fee for full- membership but LaRue refused to accept it. Kaplan then asked whether he would get the $100 back if he' quit the` industry. LaRue said there was no provision for that and that he could not be registered unless the $100 was paid. Kaplan did, not pay and was not registered. About the middle of August 1968, Kaplan went to the Wilmington, California, hiring hall of Respondent Union in order to register. Horace -Hamilton, a temporary patrol- man, told him that he should come back the _"t day as he (Hamilton) had to speak to Patrolman Joe Gorin. The<next day Kaplan came back and spoke-to Horace Hamilton and Frank Gill 11 Kaplan asked to register and was told that he had to pay his service fee, which he did. Gill then went into the next room to see Patrolman Gorin and Garin came out and said that Kaplan would not register until he' gave them the $100 partial initiation fee. Kaplan offered him the full $250 fee but it wasn't accepted. Kaplan then asked if he could get a receipt on the basis of which he couldaget`his money back if' he left the industry and was told that he could not. Gorin toldhim "Why don't you go to the National Labor Relations Board? They'll straighten you out." On September 6, 1968, Kaplan paid $80 partialinitiation fee. At that time LaRue told him that the additional $20 wasn't due because the quarter wasn't over yet. The receipt Kaplan was given showed the $80 was, initiation fee for 64-65-66 and 67.12 and shipping rules would govern. 10 The answer admits that LaRue is a dispatcher and an agent of Respondent Union within the meaning of Section 2(13) of the Act ii The Union admitted that Gill and Hamilton helped out the dispatcher at times. 12 The above findings are, - , based on the credible and uncontested testimony of Kaplan. PACIFIC MARITIME ASSN. 343 D. The Alleged Improper Posting of the Settlement Agreement Notice The General Counsel contends that the settlement agreement was properly set aside not only because of subsequent violations of the Act but because the Union failed to properly, post the notice as required by the settlement agreement.. The facts relating to the alleged subsequent violations of the Act are set forth in detail below, but the issue of the notice may be disposed of now. The only evidence of improper posting was that contained in the testimony of Kaplan. He averred that he saw the notices posted in the hiring hall during the end of May and June but that during July he didn't see them posted on either bulletin board on the Union's San Francisco premises. He further testified that sometime in August he saw a man from the National Labor Relations Board speak to LaRue and the next day he saw LaRue put up the notices again on both bulletin boards. Edward Turner, the chief executive officer of the Union, testified that the notices were put up in two places, one outside the dispatch counter where it could be seen by the dispatcher and the other on the-floor below. He further testified that the one on the floor below was periodically torn down, that the notices were immediately reposted each time, that finally the Union put the notice downstairs under glass and locked it so that it could not be torn down, and that after that he left the notice on the board for 90 or 100 days. I credit Turner. The General Counsel has not established by a preponder- ance of the credible' evidence that the Union failed to fulfill its posting obligations under the settlement agreement. E. The September 20, 1969, Incidents 1. The referral of Roberts rather than Kaplan a. The incident September 20, 1969, was a busy day at the Union's San Francisco hiring hall. Several hundred applicants were in the hall and52 were dispatched to jobs. Before the dispatch of the Group 2 jobs began, Kaplan "threw in" his registration card along with the others in that group. Another applicant who threw in his card at the same time was Eugene Roberts. Both had Class A seniority at the time and as Roberts' registration card had an earlier date than did Kaplan's, under the ordinary rules of the hiring hall, Roberts' name was to be called first. Before the call began, Kaplan and Roberts had a conversation. Roberts told Kaplan that he (Roberts) was going to get the job as lounge steward that was posted on the board. Kaplan replied that he (Kaplan) wanted that job and that Roberts wasn't entitled to it because he didn't have the requisite experience. Roberts then said, "LaRue is going to give me 13 These findings are based on the credible testimony of Kaplan. Roberts, who also testified, in substance substantiated Kaplan's version of the conversation. Roberts averred that both he and Kaplan said they wanted the job, that hie (Roberts) said that he planned to take the lounge steward job, that Kaplan asked if he had his discharges, and that he (Roberts) answered that he did not but that he thought he'd get the job anyway. I credit Kaplan's assertion that Roberts told him that LaRue was going to give him (Roberts) the job. Roberts also testified that he did not consider himself qualified for the lounge steward job. The confidence he expressed in getting the job indicated that he had some information from the lounge steward job" and when Kaplan protested, Roberts said, "Wait and see." 13 When the dispatching began, Roberts' name was called before Kaplan's as Kaplan had registered at a later- date than Roberts. Roberts went up to the dispatch desk where LaRue asked him which job he wanted . He requested the lounge steward position. At that time Kaplan was also at the dispatch desk.14 Applicants were supposed to stay behind the rail- which was- in front of the dispatch desk except when their names were called, but they were allowed to approach the dispatch desk if they wanted to protest a dispatch. Kaplan challenged Roberts' right to the job, saying that Roberts had no discharges and had never been a lounge steward. LaRue looked at Roberts' discharges and told Kaplan that they contained smoking room discharges that were better than lounge steward discharges. Kaplan replied that those discharges didn't count because they were standby - smoking room discharges. LaRue then said that he was going to give Roberts the job and Roberts was dispatched.ts b. The Union's animus against Kaplan On direct examination Kaplan testified that LaRue told him that if he didn't like Roberts' dispatch , he should go to the Labor Board and file a grievance . On cross-examination Kaplan added for the first time that LaRue told him that he had gotten enough money out of the Union and he didn't need a job. In an affidavit dated October 300969, relating to the same incident, Kaplan did not attribute either remark to LaRue but averred simply that LaRue told him "I am giving him the job-file a grievance." Roberts did not testify about any remarks that LaRue made to Kaplan with reference to going to the National Labor Relations Board or receiving money from the Union. I do not credit Kaplan's assertion that such remarks were made to him. Kaplan impressed me on the stand as a highly intelligent man who was honestly trying to recall the incidents to which he testified, but also as a man who was so emotionally involved in the situation and so bitter against the Union that it was sometimes impossible for him to separate what he saw and heard from what he wished to see and hear. In this instance, the discrepancy between his testimony and his pretrial affidavit, his newly added testimony on cross-examination, and the lack of corrobora- tion by Roberts, who also testified for the General Counsel, leads me to discredit Kaplan's assertion that LaRue told him to file a grievance with the Labor Board or that LaRue told him that he received enough money from the Union. However, Kaplan also testified that officials of the Union made statements to him at different times indicating their resentment against him for filing charges against the Union and receiving the $3,060 under the settlement agreement. the Union that he would get the job and this lends credence to Kaplan's testimony. 14 Gentry Moore, who testified for the Union, averred that While Roberts was being dispatched Kaplan did not come near the counter, I do not credit Moore. Kaplan and Roberts both testified that Kaplan was there and Don Shelley, who also testified for Respondent Union„ averred that when Roberts name was called Kaplan also went forward and said that he wanted the job. 15 These findings are based on the credible testimony of Kaplan. Kaplan's testimony was corroborated in substantial part by Roberts. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With ;regard, to the following incidents, Kaplan's, testimony was credible and uncontradicted. On September 3, 1969, when Kaplan, received his Class, A seniority, he- had a dispute with LaRue over whether he owed dues for the full quarter in, which he became-a member of'the Union`or only .from the date he became a member. LaRue told him th-&-he wouldn't give him his registration or_ his, book - unless Kaplan paid for the full quarter and also-said "Why'don't you go down,to the National Labor Relations Board?" Some time later, Kaplan gave LaRue $5 for th'e"dues-and ,LaRue -said' that with the"-money he, received- from the National Labor Relations Board ' he shouldn't have' any complaint. Patrolman Powell, who was there at`the`time, Aoid-Kaplan, "You caught me with-my pants down, with that case, and don't you forget it." " Powell also told Kaplan that W he -(Kaplan) had housed ' and, fed Auralle so that Auralle could file charges and that the (Kaplan) could get the money. Powell -told him that no one was going to forget the incident, that Auralle had not better show 'his' face around the hiring hall, and that he would never get a job there. At that time, appointed Patrolman Boschetti, who was also present, said ,that Auralle was a nice kid who had thought he had been treated badly and that he would be able to ship out. Kaplan was then given his union book and his Class A 'seniority rating. In another" incident about August 11, 1969, after Kaplan had had a disciplinary problem with Matson concerning his conduct aboard the SS Lurline, Kaplan sought the help of Powell. Kaplan was suspended ,for- 60 -days and Powell said; "You got enough money. You got $3,060 from the Union and you don't have to worry about money.". " The animosity of the Union against Kaplan '- is reflected in the Union's, official newspaper, the Steward's' News, which 'on August 9, 1'968, and June 10,, 1069, carried Secretary-Treasurer Turner's reports,.',, Those reports, which' prior to the ' time they appeared, in the paper had been' adopted by the member- ship, were official records of the Union.' In the first'report, after discussing an unfair labor practice charge "filed by Kaplan, Turner said. "Some people use the Union and the membership for everything they can possibly get, but if and when it comes to, any cooperation on their part, it is not only lacking but they act as though the membership is an enemy of theirs. In most cases, these are the people that demand, more than=the, rules provide for them to get. I'am sure that`niany members o€ our Union know who Martin J. Kaplan' is." The report that was carried in the June 10, 1969, diaper referred to, the settlement agreement in which Kaplan received $3,060 and'said "However, ' I'am'sure `the record of at feast oife'of these men will stand out, and those men who have had the misfortune or the unpleasant pleasure of being shipmates with men of this -type can thoroughly and- completely understand their make up." Turner,acknowledged that he was referring to Kaplan. Though the - above incidents indicate that certain union officials did hold an animus against Kaplan because he filed, charges with ` the National Labor Relations Board, there were other acts `by union officials which indicated a lack of animosity. Most important of these is that after the settlement agreement 'and, even, though - the settlement agreement did not require it, the Union did give Kaplan his class A seniority rating and did' accept him into full membership in the Union. He used the hiring hall and was dispatched as a lounge steward 'on' August 22, 1970, less than a month before the events in issue . Even the incident flowing from the discipline aboard the SS Lurlirie indicates that the Union was willing to give Kaplan a lair' "`deal. Kaplan ; was not satisfied with the way Powell had represented him and he went to the office of the Union and spoke to Edward Turner its secretary-treasurer and chief executive officer. Kaplan told Turner, that Matson was trying to fire him on the `SS Lurline, that the Union didn't want- to represent 'him on that ship, and 'that gall` they brought up was the money he had gotten from the National Labor Relations Board. Turner called Patrolman Bud Bayless and told him to take care of the matter. Bayless took "the"matter up` with Matson Representative'McCart- ney, and the 60' days' suspension was reduced to 30 days. c. The shipping rules The -General Counsel does not contend nor does the complaint allege the Respondent Union violated the Act by not following the shipping rules. The General Counsel's sole contention is that Kaplan was not dispatched to, the lounge steward job because of protected,activities that he engaged in. We are not concerned, therefore, with whether LaRue was,,right, or wrong in, his -interpretation of the shipping rules when he sent out Roberts, unless LaRue's interpretation was so without foundation as to indicate that the real reason for his action was to discriminate against Kaplan. It is uncontested that Kaplan's , discharges established that he was qualified for the job he sought. Before his dispatch on September 20, 1969, Roberts had never been a lounge steward. His' primary experience, which- covered about 7 or-8 years, wasvas a waiter and also as a scullion, a porter, a mess man, and an assistant baker. He had never worked as a steward except for about 3 days as a standby smoking room steward. That,,type of,a job becomes available when a ship 'is tied to a dock and extra employees are needed, Rule, l0 of` the shipping " rules provides: 10(b)-Registrants shall be shipped at each call in accordance with their seniority and within a seniority 'class according " to their 'registration ',date, in the following order: (1) Qualified Class A registrants registered in the group in'whi'ch the job is called. A qualified registrant within the meaning of this Rule 10 is defined as a registrant who hash and can produce a discharge (in lieu of a discharge,, company or union records may be referred to) showing 30 days- or more of employment in the rating to be dispatched d. The racial problem Neither the General Counsel nor Respondents contend that there is a racial issue in this case -and `it is not the General Counsel's position, , nor is, it alleged in the complaint, that Kaplan was the subject of some sort of reverse discrimination ; -in dispatch . However, there is -credible evidence that Roberts was told in advance of the dispatch that he would get the job he sought even though Roberts did not consider himself qualified for the job. PACIFIC MARITIME ASSN. 345 Background facts which might shed light on this must therefore be considered. Roberts is a member - of a, group called the Black Brotherhood. As such, he was-the first of 24 seamen to sign a letter dated July 18, 1969, to the Fair Employment Practice Commission in San Francisco. The letter indicates that copies were sent to the NLRB, the Fair Employment Practice Commission, the NAACP, the Urban League, and a Mr.- Powell. A., Brooks Powell was the Union's San Francisco patrolman. It complained that black seamen were - systematically being given menial jobs such as scullions, porters, and janitors, while, the hotel section jobs were being reserved for whites. The letter states in part: This letter is the result of, frustrating unanswered appeals to Matson Navigation Company and the Marine.Cooks and StewardsUnion. It is for the purpose of pursuing a fair system of employment for the black men and women who sail for this company and all companies whose crews are contracted through said Union. We're writing this from the S S Lurline, a Matson Navigation Co. passenger liner, that hires two-hundred eighty men in its Stewards Department in every capacity that would -be associated with a hotel that would quarter and feed its personnel. We propose to show that these positions have been filled not by men best qualified but with a bias in favor of keeping a lily white system. This has, excluded the black man from all of the top side (bartender, smoking room steward, lounge steward, deck steward; etc.) and supervisory jobs that may be desired. These, jobs don't pay more in base wages nor, with the exception of the bartender, do they entail any special skill or experience. However, we would like to have a choice of jobs and behired on our merits as workers and men rather than race. In the Union hiring pool the percentage of black men is approximately thirty percent, but aboard ship, like the Lurline, this group is channeled into what we call red card jobs which are the menial jobs such as scullions, porters, janitors, etc. Jobs that have been open to us in the hotel section are waiters and on a quata [sic] basis room steward. In certain supervisory jobs a token showcase is established, namely the Third Steward. Two black men have been hired as Assistant Head Waiter in the last ten years out of approximately, seventy-five who have had the job. Three men have been hired in top side positions and one black bartender completes the company's stab at tokenism. Under the present policy of the company, a man has to compete for a job on a seniority basis, but can only obtain the job if he has discharges in the rating competed for, with the exception being, if a job stays on the board- for three calls,'the man with the oldest card gets the job. i6 Section 5(d) of the contract provides that grievances with respect to the right to be dispatched' to any job must be filed within 1/2 hour of the close of the shipping period involved and any grievance Alpd after that shall be automatically denied. As set forth below, Kaplan was seriously injured and required hospitalization before the filing period expired. 17 The dispatcher is a constitutional officer of the Union who is elected by the union membership. In theory this is fine except the jobs are seldom if ever on the shipping board for three calls and if they should be, the company reserves the right to turn a man down without a real reason. There are a lot of incidences that can be cited that constitute a legal case of job discrimination acid we are prepared to do this . However, the fact that on this ship with a stewards department crew of over two-hundred, at the present time, not a single 'black-man is in a ,top side hotel position, is enough for an indictment. Apparently, Kaplan thought that Roberts was sent out before him because Roberts -was black. On September 24, 1969, Kaplan filed a charge of discrimination with the Equal Employment Opportunity Commission in which he swore that to the best of his knowledge, information and belief _"I was previously-denied a job because I -had no discharges. I then obtained the necessary discharges but when I requested a job as lounge, steward the black dispatcher refused to give me a referral and instead gave it to a black Eugene Roberts who did not have the discharges and the Company accepted him-. A previous EEO complaint was denied because I lacked the discharges. I feel that both the Company and the Union discriminated against me because I am white." ' In addition to filing the complaint with, the EEOC, Kaplan also filed a charge with the Board and a grievance under the contract. That grievance 'which was dated September 22,1969, stated "At the 9:00 o'clock call there was a job for lounge steward on the Lurline. The job was given to a Eugene Roberts who didn't have those discharges. I protested and challenged for discharges-But got my head opened up-21 stitches at the Public Health Hospital." 16 2. The assault a. The incident Some 5 minutes after Roberts was dispatched, Kaplan was once again in front of the dispatch desk when Elmiro LaRue, the union dispatcher,17 came out from behind the dispatch desk and hit Kaplan over the head with a metal chair. More than 20 stitches were required to close the wound. This incident took place in the presence of more than 200 people in the hiring hall and there is much conflicting evidence as to the events leading up to the assault. However, the testimony that LaRue did hit Kaplan on the head with the chair is uncontradicted.18 The General Counsel contends that the Union' violated Section 8(b)(1)(A) of the Act in that LaRue, its agent, assaulted Kaplan because Kaplan engaged in activities that were protected under the Act.19 The Union urges a finding that LaRue had reason to believe that Kaplan was 4 dangerous man who carried a gun and that he acted in self-defense when he saw Kaplan drop his hand to his right back pocket. In addition to this proceeding, the assault led to a 18 Some of the witnesses- testified sthat LaRue threw the chair from a short distance away rather'than striking, Kaplan with the chair, but I find this distinction' without meaning. LaRue refused to testify on the grounds of possible self-incrimination. 19 The General Counsel does not contend that the Association or Matson are responsible for the assault. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criminal charge against LaRue and a civil suit for damages against the Union. Both were pending at the time of the trial herein. Combining the credible parts of the testimony of a number of witnesses, I find that the following events occurred: After Roberts was dispatched, Kaplan stayed at the dispatch desk arguing loudly with LaRue. The argument was slowing down and hampering the dispatch procedure and LaRue told Kaplan that he was going to have to stop the dispatching unless the disturbance quieted down. Kaplan was swearing and accusing LaRue of engaging back door shipping.20 LaRue told Kaplan that he could file, a grievance if he wanted to. Gerald Posner, the administrator of certain of the Union's funds, then spoke to Kaplan and convinced him to leave the dispatch counter and go behind the rail.21 About 5 minutes later, Kaplan's name was, called for a dispatch and he went up to the counter.22 LaRue asked .Kaplan what job he wanted and Kaplan answered he was protesting the lounge steward job because that was the job he should have had. LaRue said that he had given that job away and asked what other job Kaplan wanted, Kaplan replied that he wanted the veranda pool deck job and LaRue asked to see,his discharges. At that point Kaplan said "Me, you want discharges, him you didn't need no discharges." Once again Kaplan started shouting, and swearing and accused LaRue of back door shipping and shipping out all the blacks.23 At that point, LaRue said that he wasn't going, to take anything else from Kaplan, came out from behind the dispatch counter with a metal chair, and hit Kaplan on the head. Union witnesses Don Shelley and Gentry Moore, both of whom were assisting the dispatcher at the, time of the incident, testified that LaRue did not come out from behind the counter in order to hit Kaplan, but came out because one of the applicants told him that there was an error on the board and he was about to fix that error. Shelley testified that as LaRue came out from the counter, Kaplan said that he was going to get them all, cursed LaRue, and reached for his back pocket. Union witness Lachetsky, as well as Moore, also testified that Kaplan dropped his right hand to his right pocket before LaRue hit him. Based on my observation of these witnesses and a scrutiny of their testimony, I do not credit them. Lachetsky 20 Kaplan testified that he did not engage in loud talk and that he did not swear. Willie Perkins, who was the only other witness testifying for the General Counsel on this issue, acknowledged that he did bear loud voices even though he didn't hear swearing. However, I credit the testimony of Beverly Laycook, who averred that LaRue did tell Kaplan that if he didn't quiet down he would have to stop the dispatching, and also the testimony of Darlene Stover, who averred that Kaplan was arguing loudly, swearing at LaRue, and interfering with the dispatching. The substance of their testimony was also corroborated by witnesses Posner, Lachetsky , Shelley, and Moore. There is some question as to what swear words Kaplan actually used. Stover, who was a credible witness, testified that she couldn't remember his exact language, but that be did use some swear words. Posner, Shelley, and Moore testified , to specific foul language I used by Kaplan, but as set forth below, I find their testimony often unreliable and I 'do not credit their assertions in this regard . The General Counsel argues in his brief that Laycook and Stover were not truthful in their testimony that they left the hall before the attack on Kaplan , as shown by the fact that Laycook had'a recent registration card and would not have been referred before Kaplan's name was called. However, Kaplan did not 'contradict their testimony that they were in the medical center when he was brought in. Their presence in the medical center at that time indicates that they did leave the ball before the assault testified that the chair was thrown at the same time that Kaplan dropped his hand and Moore averred that only a split second passed between the dropping of the hand and the movement of the chair. Shelley testified that 10 or 15 seconds passed between, the time that'Kaplan'diopped his hand and the time the chair was thrown. If the two incidents happened almost simultaneously, as 'testified to by Lachetsky and Moore, then there was" not time for LaRue to see Kaplan's motion, surmise that- he was reaching for a gun, andrespond to that surmise bythrowing the chair. If 10 or 15 seconds elapsed, as testified by Shelley, then LaRue would have had plenty of time to realize that Kaplan. did not have a gun. Both Perkins and Kaplan credibly testified that before coming out from behind the dispatch desk LaRue put down his glasses on the counter. When LaRue came around from the dispatch desk, he did so with the intention of getting at Kaplan, and the testimony of Shelley and Moore that LaRue was merely trying to fix the board is not worthy of belief. Perkins and Kaplan also credibly testified that in addition to LaRue hitting Kaplan with the chair he also hit him with his fist and kicked him. After the assault, Posner took Kaplan to the union medical center where he received care from a doctor. He then went to a hospital in a taxi and was given further care 24 b. The Union's defense Much'testimony was offered by the Union in an attempt to establish that LaRue'had reason to,believe that'Kaplan was a dangerous armed man. Secretary-Treasurer Turner testified that LaRue was present at conferences 'where Kaplan's application for a training school dated June 1959 was discussed. That application stated'that Kaplan never went to court or had any convictions but was arrested in 1927 for suspicion of armed robbery, in 1937 for suspicion of murder, in 1938, for suspicion of assaults in 1948 for suspicion of assault and shooting, and'in 1950 for carrying a concealed weapon. Kaplan testified that these items were stricken out of the application because he had mistakenly confused an arrest with questioning by police and with regard to those matters he had just been questioned. 21 Posner, Shelley, and Moore also testified,that LaRue told Kaplan that the job would be frozen if he filed a grievance. I do not credit that testimony. I believe that all three were unreliable witnesses. Posner testified in substance that he was keeping an eye on Kaplan in order to avoid trouble and yet he averred, that at the ,crucial moment of the assault he stepped outside the hall to talk to someone and that he didn't see the incident. I do not believe that Posner was a candid witness. I was also unimpressed with the veracity of Shelley and Moore, as is more fully set forth below. 22 On this issue I credit Kaplan and do not credit Posner, who testified that Kaplan was not called for dispatch. 23 Though I have discredited much of Moore's testimony, I do credit it with regard to Kaplan's complaining about LaRue shipping out the blacks. Such a statement is consistent with Kaplan's subsequent action in filing a charge with the EEOC. 24 Laycook and Stover credibly testified that they saw Kaplan in the medical center and he looked pleased with himself. Lachetsky and Posner credibly testified that Kaplan told them that he had the Union where he wanted it and was going to sue. However, none of these post assault observations or statements have any bearing on whether the assault was a violation of the Act. PACIFIC MARITIME ASSN. 347 However, I believe that LaRue was aware of the original application. Harry Whitelaw testified that in 1967, while he_ was aboard ship with Kaplan, Kaplan said that he had a gun and that if Whitelaw didn't straighten out, he would blow his brains out. Gorin heard of this and testified that he told it to LaRue. In February 1966, according to the testimony of Posner, Kaplan met him outside of Turner's office, took out a gun and said he_ would like to kill everyone in the office. Posner also testified that he reported this to, union officials, including LaRue, both orally and in writing. Horace Hamilton testified that in May of 1969 Kaplan showed him a gun and said that he was going to get Gorin and Turner every chance he could because he had protection. Hamilton averred that he reported this to the Union in writing. This matter was discussed at conferences attended by LaRue. Kaplan acknowledged that in the past he had carried a gun for which he had a permit, but he denied the substance of the conversations that he allegedly had with Hamilton,. Whitelaw, and Posner. I need not resolve this credibility issue because the incidents to which the testimony relates 'are only relevant to the extent that they can indicate LaRue's state of mind at the time of the assault. Whether' Hamilton, Whitelaw, and Posner were telling the truth or merely defaming Kaplan, I do believe that they told their stories to Union officials and that LaRue was aware of them. This awareness, however, does not add to the Union's defense. The Union's contention that LaRue struck Kaplan with a chair in self-defense can only stand if Kaplan took some action in the incident that could have led LaRue to believe that he was in danger. The mere fact that LaRue believed Kaplan to be a potentially dangerous man could not justify LaRue in attacking Kaplan in the absence of some action by Kaplan that would spell danger 'for LaRue. I have found that Kaplan neither took nor'threatened such action . He engaged in nothing more than an oral protest of Roberts' dispatch and vocal polemics which were devoid of threats. LaRue responded to Kaplan's words with physical assault. Kaplan engaged in no violence or threat of violence of any kind and, under the facts of this case, the attacker cannot successfully defend on the ground that he was afraid of the person whom he attacked. - F. Analysis and Conclusions 1. The referral of Roberts rather than Kaplan In mid-July and again .in mid-August 1968, Kaplan was refused, registration by union-officials because he had not paid,a partial initiation ,fee at a time when he was ineligible for full membership.25 Kaplan filed charges which resulted in a settlement agreement dated May 15, 1969, under which he received $3,060. His activities in filing the charge and in participating in the settlement agreement were protected under Section 7 of the Act. The Union was hostile toward Kaplan because of that protected activity. This hostility 25 The Board has held that presettlement conduct may be used as background evidence establishing the motive or object of Respondent in its postsettlement acti"tties. Northern California District Council of Hod Carriers and Common Laborers of America, AFL-CIO (Joseph's Landscaping Service), 154 NLRB 1384, enfd. 389 F.2d 721 (C.A. 9, 1968). 26 Respondents urge 'that Kaplan's testimony with regard to the alleged statements made by Powell was inadmissable because Powell was dead at was demonstrated both orally and in writing. The Union's official newspaper carried the official reports of Secretary- Treasurer Turner which on August 9, 1968, attacked Kaplan for filing the charge and on June 10, 1969, attacked him with regard to his receipt of the money under the settlement agreement. Hostility was also demonstrated by remarks that union officials made to Kaplan. Thus, on September 3, 1969, LaRue, in a dispute with Kaplan, asked him why he didn't go to the Board, and Patrolman Powell told him "You caught me with my pants down, with-, that case, and don't you forget it." " In addition, on August 11, 1969, when Kaplan had a disagreement with Powell, Powell told him that he (Kaplan) had received $3,060' from the Union and he didn't have to worry about money26 On- September 20, 1969, some 4 months after the settlement agreement, Kaplan was summarily rejected when he sought, a dispatch to the job as lounge steward aboard the Lurline and, in spite of Kaplan's strenuous objection, the job was given to Roberts. Kaplan was qualified for the job under the shipping rules in that he had discharges showing more than 30 days of employment in that rating. Roberts was not qualified under the shipping rules in that he had not worked for 30 days-or more in that rating. Roberts' dispatch for that job was therefore in violation of the'shipping rules and contract. Standing alone, these facts would warrant an inference that the dispatch of Roberts rather than Kaplan was casually connected to the Union's animus against Kaplan for his protected activities and was a reprisal against him for engaging in those activities. However, there are additional facts that must be considered. Roberts was a member. of the Black Brotherhood, an organization that was seeking to upgrade the jobs of blacks. Roberts was the first signatory on a letter of July 18, 1969, from the Black Brotherhood to the Board, agencies and organizations concerned with racial discrimination, and Powell of the Union. That letter excoriated the hiring system for keeping the desirable "top side" jobs "lily white and for systematically excluding blacks' from-such jobs. The letter specifically mentioned the lounge steward position as one of the jobs which had been kept out of reach of blacks. In addition, the letter bitterly complained' about the seniority, system used in the hiring hall and the -need for discharges to become eligible for particular jobs when the' discharges could not have been obtained by blacks because of past discrimination. The letter was, written 2 months before Roberts was dispatched to the lounge steward job, Prior to that dispatch, Roberts was given some advance notice that he was in line for the lounge steward position; and he applied for that job even though he did not have discharges to show that he was qualified under the shipping rules which had been attacked in the letter. Kaplan himself complained to LaRue on September 20 that LaRue was engaging in back door shipping by trying to ship out all the blacks. On September 24, 1969, which was-4 days after the time of that testimony. In making my findings, I have considered the fact that Powell cannot respond, but nonetheless I credit that part of Kaplans testimony. See Wallick and Schwalm Company, 95 NLRB 1262, where the Board held: "the Board is not precluded from considering as evidence statements attributed to deceased persons . It does, however, subject such testimony to the closest scrutiny before deciding what weight to give it." See also Pasadena Bowling Center, 150 NLRB 729. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roberts, was dispatched, Kaplan, filed a charge with the Equal Employment Opportunity Commission claiming that, he had been discriminated against because he was-white., From-these 'facts, a reasonable inference can be drawn that Roberts ratherthan Kaplan was dispatched on September - 20, 1969, because the .Union was ignoring Rule 10 of the shipping rules : (which provided that qualified registrants were, to have, priority and that qualification required 30 days-employment- in a rating) after that rule had, been attacked; as a device for perpetuating racial discrimination. This evidence indicates that Roberts was sent out instead of Kaplan,in violation, of the shipping rules because Roberts was black and the Union sought to avoid a problem relating to race relations.27 ' A reasonable inference can be-drawn from one line of facts that Roberts rather than Kaplan was dispatched for the lounge steward job as -a reprisal.' against-Kaplan's protected activity.- Another reasonable inference can be drawn from ,'a different line of facts, that Roberts was dispatched because of a racial problem at the hiring hall and Kaplan's, protected activity had nothing to do with it., In evaluating the weigliv to be given- these inferences, surrounding circumstances must also be considered. There is credible evidence that- the Union's animosity toward Kaplan prior to Roberts' dispatch did not take the form of anything more drastic than expressions of verbal annoy- ance. Thus, about August 11 the chief executive officer of the, Union took up-Kaplan's-cause,with the result that the 60 days' ,suspension imposed by Matson was reduced to 30 days. It,-is noted that it was only because the Union assisted Kaplan in this matter that Kaplan became eligible- for dispatch on September' 20, the date the Union allegedly expressed its animus against Kaplan ' by ' dispatching Roberts. On.August 22, 1969, Kaplan came to the referral hall and was dispatched for a job as lounge steward. On September 3, ,1969, Kaplan received his class A seniority rating ;and full, membership in,the Union. All of these matters indicate that the Union's animosity against Kaplan prior to the-, -time Roberts, was, dispatched was less than virulent. The assault that occurred thereafter does indicate a violent hostility against, Kaplan, but that hostility is explainable in, terms of Kaplan's, complaints, shouting,. cursing, and,slowing down the hiring process after Roberts was dispatched. ' There are twoP plausible explanations for,the Union's conduct in regard to the dispatch of Roberts rather than Kaplan. One of these- explanations involves a violation of the Act, by, the Union. The,other explanation, which is equally, as plausible, does not indicate a violation. In addition, the Union _ has,,-taken actions with regard to Kaplan that indicate that,it is not trying to get even wiff him because of his,filingof a charge and participation in the settlement, Under- all these , circumstances, I find that General Counsel-has not established by a"preponderance, of the credible evidence that Roberts rather-than Kaplan was dispatched on September 20, 1969, because of Kaplan's 27 The ' complaint does not allege ' and the, parties did not litigate the issue of -whether a violation of - the shipping rules and "reverse" discrimination based on race in the hiring procedure' would constitute a breach of, the Umon's.duty of fair representation and therefore unfair and invidious treatmentaffecting employment in violation .of Section 8(b)(1)(A) of the Act. The only issuepresented with regard to the dispatch of Roberts protected activity. I shall therefore recommend 'that paragraph VIII(e) of the complaint be dismissed. The General Counsel` urges a finding that the Union, by its act of assaulting Kaplan, refused to- dispatch him after he was called for dispatch on September 20,'196% However, I do not believe that the assault was a way of telling Kaplan that the Union would not"dispatch him. Kaplan's name was called and -the Union was ready to dispatch him at that time. The assault rendered Kaplan physically `unable to be dispatched. Whether, the assault was an unfair ` labor, practice and matters' relating to appropriate remedy are discussed below,-but the'assault in itself was not a refusal to, refer.28 2. The assault On September 20, 1969; when Roberts' name' was called in the hiring hall; and again some 5 minutes later when his own name came 'up, ' Kaplan vigorously -protested the manner in which LaRue'was dispatching. The accusation that LaRue was engaging in back door shipping was a complaint that the shipping rules and 'the' contract` were being disregarded. Such a complaint is not 'an individual activity but is a concerted activity which is protected` under Section 7 of the Act. In Bonney Bros. Construction Company, 139 NLRB 1516, the` Board held that an individual ,who asserted a claim under a contract was engaging in protected activity because in asserting such a -claim, (the employee) sought to implement the collective-bargaining agreement applicable to him as well as to othgr (employees) and that the implementation of such an agreement by an employee is' an extension of the concerted activity giving rise to that agreement." In Interborough Contractors , Inc., 157 NLRB 1295, enfd.-388 F.2d 495'(C.A. 2, 1967),^ the Board held that such a protection existed whether or not an _emplo'yee's' complaint had merit, holding that employee complaints 'constituted protected activity since they were made in,the attempt to enforce the provisions "of the existing collective bargaining agreement." LaRue was an elected I constitutional officer of the Union, and the Union was ' responsible for his conduct in the referral hall. As dispatcher, LaRue was the Union' s agent. ' Section 8(b)(1)(A) of, the Act makes it an unfair labor practice for a union or its agent to restrain or coerce employees in the exercise of -,the rights guaranteed in Section 7 of the Act. A violent physical assault is an extreme form of restraint or coercion. By striking Kaplan on the' head with the metal chair,' LaRue not only restrained and coerced-,Kaplan--but also restrained and coerced all the applicants for employment in the hiring hall who witnessed the assault. The assault on Kaplan 'was an-object lesson to any of .the spectators who in the future , might follow Kaplan's footsteps, and as such it was a restraint on such conduct. Kaplan engaged in protected activity when he protested against LaRue's violation of the, shipping, rules and rather than Kaplan is whether Roberts was, dispatched'rather,than Caplan because -of Kaplan's protected' activities. " ` 28 It is noted that a' refusal to refer by' the dispatcher under the circumstances of this case would be a violatiou,by the Association and Matson as well' as the Union. The General Counsel does not contend that Matson or the Association are responsible for the assault. PACIFIC MARITIME ASSN. 349 contract. By assaulting him, LaRue restrained and, coerced him and the applicants for employment who saw the incident. However, the question remains whether Kaplan's activities on that day so ,far exceeded the bounds of propiety as to remove the protection that would otherwise have been afforded , him. The , assault _ was , casually connected with Kaplan's protected activity-but riding along with that protected activity and also causing the assault was conduct which in - itself is unprotected , under the, Act, specifically shouting, cursing, and, slowing down the operation - of the hiring hall. In , Bettcher Manufacturing Corporation, 76 NLRB-526, the Board set forth the basic criteria to be used in determining whether -an employee exceeds the bounds of protected activities sufficiently to make hi-in-vulnerable to discipline. In-tha _ t case an-employee was discharged after a negotiating meeting when he accused his employer of manipulating the books to show a loss. 'the Board held: We do not hold, of course, that an employee may never be lawfully discharged because of what he says or does in the course of a, bargaining conference . A line exists beyond which an employee, may not with impunity go, but, that, lme must, be drawn "between cases where employees engaged, in concerted activities exceed the bounds of lawful conduct in-'a moment of animal exuberance' (Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc,, 312 U.S. 287, 293) or in a manner not activated by improper motives,a and those flagrant cases in which the misconduct is so violent or of such serious character as to render the employee unfit, for further service." - Though in the Bettcher case the protected activity was participation t he negotiations and an employer was -the respondent, the same principal would apply with regard to a union respondent and to any activity protected under Section 7 of the Act Section 8(a)(1) -of the Act prohibits interference, restraint, or coercion of employees in the exercise of Section 7 rights, and Section 8(bXl)(A) of the Act prohibits union restraint or coercion of employees in the exercise of the same rights. The Bettcher case has been followed by the Board innumerous decisions. In Socony Mobile Oil Company, 153 NLRB 4244, enfd. as modified 357 F.2d 662 (C.A. 2, 1966); the Board found that certain statements,-by an employee which the employer considered insolent 'and insubordinate were not sufficient to remove the employee's protection under Section 7 of the Act, holding: It is true that long established maritime practice may require certain amenities -of a seaman toward his superiors, even when a vessel is safely in port. But these requirements of conduct must be balanced against a statutory , right of employees to ' be protected in their .exercise of concerted activity involving the terms and conditions of-,their-employment. Striking that balance in this case, we are satisfied that (the employee's) conduct did not pass the bounds of lawful protected activity under the, standards enunciated , in the Bettcher Manufacturing case. - The same approach was taken in the case of Indiana Gear Works, 156 NLRB 397, enforced denial 371 -F.2d 273 (C.A. 7, 1967), where the Board found that an:^employee's cartoons which the employer considered .of an offensive character did not remove the employee from the protection of the Act, saying "The criteria applicable to cases such as the -instant one is whether the employees in -the course of concerted activities engaged in such flagrant, violent, serious, or extreme conduct as to render them unfit for further service." 29 - - The Union in its brief relies on such cases as Teamsters Union (Falstaff Brewing Corp.),141 NLRB 448 and Strauss Stores Corp., 94 NLRB 440. However, in the Falstaff case, where an assault had been provokedby obscene-and-vulgar remarks, the, Board held that the entire controversy was' solely of a personal nature and in theStrauss case, where an attack was caused by mutual name calking;' the assault did not flow 'immediately from the 'protected activity. A different situation''-, is present when the objectionable language is used as part of the res gestae of the activity that is protected.'Thus, in Thor Bower Tool Company, 148 NLRB 1379, enfd. 351 F.2d 584 (C.A. 7, 1965), the'Bbard held that it was unlawful to, discharge`an employee -who called his employer a foul name after a -grievance meeting; on the grounds that the characterization was protected activity as part of the r'es•gestae of the'gtievance-discussion. ' In the instant case, Kaplan did engage in shouting and cursing. This shouting and cursing was tied in,very directly with his complaint about LaRue's operation of the hiring hall. The shouting and cursing could ,be considered as simply an extremely vigorous means"'of presenting his complaint. LaRue, was engaging in "backdoor shipping"in violation of the shipping rules and-the contract. Kaplan let LaRue and the others present in the hiring hall know about his protest in a loud and unequivocal manner. The protest took place in a seaman's hiring hall where rough language might not be as out of place as ' it `would have been elsewhere. Under the criteria set -forth, in the Bettcher case, Kaplan was engaging in protectedconcerted activities and, if the form of his protest exceeded `the bounds of -lawful conduct, it was activated by proper motives -and was -in a "moment of - animal exuberance." Under- the criteria set forth in the Indiana Gear Works caie,'"Kaplan did not engage in such flagrant, violent; serious, or extreme misconduct as to render him unfit for further service. Under the criteria set forth in the Thor Power Tool case, his shouting- and cursing were--part of the res gestae of his protected protest. In short, I find thatKaplain was engaging in activity that was protected by Section 7 of the-Act and he did not engage in any activity that was sufficiently improper' as to remove that protection. Kaplan's shouting and cursing did have the 'effect, of -glowing down `arid hindering the hiring process, but any insistent protest would have-that impact. Kaplan interfered with the hiring process only for a matter of-minutes and this interference, based as it was upon his vigorous protest against a violation -of the shipping rules and contract, is not a sufficient basis for removing the protection from him. - In conclusion, ,I find that^the Union was ` responsible for the assault - on Kaplan,- that the assault stemmed, from 29 See also Terry Coach Industries, .Inc., 166 NLRB 560,,enfd. 411 F.2d 395 E2d 512 (C.A. 5, 1968). 612 (C.A. 9, 1969); Boaz Spmmng'Co., 1'65 NLRB f019, enforcement denied 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kaplan's protected activity in protesting the operation of the hiring hail, that Kaplan took no action that warranted removal of the protection from him and that the, Union restrained and coerced Kaplan and other applicants for employment in the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8(b)(1XA) of the Act. 3. The settlement agreements The Regional Director set aside the settlement agree- ments on the ground that Respondents failed to discharge their obligations under those agreements. The only paragraph of the complaint which alleges that the Association or Matson engaged in conduct that could, be considered to, be a;failure to discharge said obligations is VIII(e) which states that the Respondents refused to dispatch, Kaplan, on September .20, 1969. For the reasons stated above, I shall recommend - that that section of the complaint be -dismissed. Paragraph IX of the complaint alleges that the- Union assaulted Kaplan in violation of the Act. There is no .contention that-theAssociation or Matson is liable for , the assault. In,the absence ,of any finding that the Association or Matson failed to discharge their obligations or that they engaged in any , postsettlement violations ,of the Act, there .is no proper foundation for the setting aside of the settlement agreement in Cases 20-CA-5126 and 20-,CA-5160. The settlement agreement in those cases is therefore reinstated . As such settled matters cannot be resurrected in this case, 1, shall recommend the dismissal of those portions of the complaint that allege that the Association or Matson violated the Act. In its brief, the Union argues that the settlement agreement in Cases 20-CB-1893 and 20-CB-1908 was improperly vacated in that: the settlement agreement was narrowly worded and encompassed only the collection of assessments, service , and initiation fees; the settlement agreement provided that upon compliance with its terms, no further action was to be taken ; and that, assuming a violation based on the assault was found, such a violation would be so unrelated to the matters covered by the settlement agreement that there was no basis for a finding that the settlement agreement had been breached . It is true that the settlement agreement is narrowly drawn and contains no catchall provision. However, the essence of that settlement agreement is concerned with practices in the hiring hall, that unlawfully infringed on rights of Kaplan and Auraile that were protected under Section 7 of the Act. The Union's conduct on September 20, 1969, just 4 months after the settlement agreement, was different hiring hall conduct by the Union that was also a restriction on Kaplan's protected activities . There are substantial com- mon elements in the presettlement and postsettlement conduct of the Union. In Southeastern Stages, Inc., 174 NLRB 585, enfd. 423 F.2d 878 (C.A. 5, 1970), the Board reaffirmed a line of cases holding that "independent; or continuing violations of the Act constitute a breach of the settlement agreement and justify the Regional Director in setting aside the agreement and proceeding with the complaint which covers both the pre-settlement and post- settlement violations." In enforcing the-Board's order, the Fifth Circuit Court of Appeals held that: This leaves for consideration the question as to 'whether the Board' could properly set aside the' settlement agreement and find a presettlement violation of Section 8(axl). It should be noted from the outset that "Southeastern does not deny the use of presettle- ment conduct as background evidence in support of the Section 8(a)(3) violation. It contends that thee settlement agreement is a bar to the maintenance of a charge of Section 8(axl) violations occurring prior to the settlement in the absence. of a showing that the violator has breached its- terms by engaging inthe same type of conduct as covered-by the agreement. - The adoption of Southeastern's ` contention would unduly limit the Board's power and effectiveness in the protection of labor and management from unfair labor practices and would be contrary to the current trend of the decided cases. As observed by the Supreme Court, "[The Board] has consistently gone behind [settlement] agreements . . . where subsequent events have demon- strated that efforts at adjustment have failed to accomplish their purpose, or where there has been a subsequent unfair labor practice. We think this rule adopted by -the Board is appropriate to accomplish the Act's purpose with fairness to all concerned." l gllace Corp. v. NLRB, 323 U.S. 248, 254-255, 65 S.Ct. 238, 241, 89 L.Ed. 216,226-227. This holding of the Supreme Court has been interpreted to mean that a settlement agreement can be setaside and presettlement violations found, when there has been-a breach of the agreement, or 'when there has been a subsequent independent violation of the Act by a party to the agreement. (Citations omitted.) I find that the settlement agreement in Cases 20-CB-1893 and 20-CB-1908 was properly set,aside. 4. The Union's ' presettlement conduct a. As to Kaplan In operating an exclusive referralhall, the Union may require as a condition of referral' that an applicant pay money to the Union only where the money is due under a union security clause, that is lawful under Section 8(a)(3) of the Act or where -the money is a payment for.the use of the hall and is reasonably related to the value of the services provided by the Union. - - In Radio Officers' Union v. N.L,RB., 347 U.S.17 (1954), the United States Supreme Court made it clear that employees' jobs were to be insulated from their organiza- tional rights, saying: Thus Section 8(a)(3) and 8(b)(2) were designed to allow employees to freely exercise their right to join unions, be good,, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood. The only limitation Congress has chosen to impose on this right is specified in the proviso to Section 8(a)(3) which authorizes employers to enter into certain union security contracts, but prohibits discharge under' such contracts if membership "was not available, to the employee on the same terms and conditions generally applicable to other members" or if "membership was denied or terminated for reasons other than the failure PACIFIC MARITIME ASSN. 351 of the employee to tender periodic dues and initiation fees uniformally required as a condition of acquiring or retaining membership." ... This legislative history clearly indicates that Congress ' intended to prevent utilization of union security agreements for any, purpose other than to compel payment of union dues and fees. Thus Congress recognized the validity of the unions' concern about "free-riders," i.e., employees who receive the'benefits of union representation but are unwilling to contribute their share of financial- support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for, any other reason. Thus an employer can discharge an employee for nonmembership in a union if the employer has entered a- union security contract, valid under the Act with such Union, and if the other requirements 'of the proviso are -met. No other discrimination aimed at encouraging employees to join, retain membership, or stay in good standing in a Union is condoned. In addition to enforcing a valid union security clause, the Union can require payment of a fee for the use of its hall that is reasonably related to the value of the services provided. Local 825, Operating Enginebrs (H. John ,Homan Co.), 137 NLRB 1043, enfd. 385 F.2d 874 (CA. 2,1967); J. J. Hagerty, Inc., 153" NLRB 1375; Coal Producers Assn., 165 NLRB 337. Any payment to the Union that is required as a condition of referral other than those set forth above violates Section 8(b)(2) of the Act by-causing or attempting to cause an employer to discriminate against_an employee in violation of Section 8(a)(3) of the Act, and violates Section 18(b)(1)(A) of the, Act'by restraining and, coercing employees iii-the exercise ,of 'their rights guaranteed under Section 7 of the Act. The Union's constitution provides for the payment of a, partial initiation fee before an applicant obtains his Class A seniority rating and becomes eligible for membership in the Union. That provision of the constitution is not -under attack-. However, the payment of the partial initiation fee is not merely a matter of internal union affairs as expressed in the constitution, it is also a, condition of registration and therefore of referral for employment. In mid-July and again in mid-August 1968, the Union refused to register Kaplan because he had- not paid' a` $ 100 partial initiation fee even though Kaplan'had Class B seniority and was not eligible under the Uni'on's constitution for membership in the Union. The partial initiation fee demanded was for the years 1964 through 1967. The-" union security clause contained in the contract provides that only Class A employees have to join the Union. As to non-Class A employees, 'various service fees -'are required. Prior to September -3, 1969, Kaplan was not a Class A -seniority employee, he was not required to join the Union under the union -security clause, 'and he was not even eligible for membership in the Union. The partial initiation fee was-not a lawful service fee nor was it required under the union security clause. I find that by requiring the payment of a partial initiation fee as a condition of referral and dispatch, as set forth above, the Union violated Section 8(b)(1)(A) and (2) of the Act. b. As to Auralle On July 18, 1968, Auralle was required to pay $20 on a 1958 assessment even though he had only' begun using the hiring hall in 1968. Patrolman Brooks Powell made it clear to Auralle that he could not ship out unless he paid the money. Under these circumstances, the $20 could not be related to any services provided Auralle by the Union. The $20 was not required under any union security clause. Such assessments may not be collected by conditioning employ- ment on their payment. Cf. Local No. 959, Teamsters (RCA Service Co.), 167 NLRB 1042. I find that by conditioning registration and therefore referral and dispatch on the payment of Auralle, of the $20 for 1958 assessment, the Union violated, Section-8(b)(1)(A) " and (2) of the Act. On August 9, 1968, Patrolman Boschetti took Auralle's registration card and told him that he would retain it until the $56 for two quarters of service fee was paid. The taking of the registration card made Auralle ineligible' for employment until it was returned. The Union was therefore conditioning registration, referral, and -dispatch on pay- ment of the $56. This incident occurred on'August 9, 1968, the service fee for the third quarter of 1968 was not due until the last day of September 1968 and-payment for the fourth quarter of that year never became due. Under the cases cited above, the requirement that Auralle pay the $56" as a condition of employment would be lawful only if that money was a service fee reasonably related to the value of hiring hall services provided by the Union. It clearly was not dues or initiation fee. On August 9, 1968, no service fee was due and subsequently only one quarter service fee became due. Thus, the Union took Auralle's registration card at a time when he owed no service fee. - I find that by conditioning registration, referral, and therefore employment on the payment by Auralle of a quarterly service fee at ,a time when he did notowe such a fee, and on the payment of a service fee for a quarter in which the Union performed no hiring hall services for him, the Union violated Section 8(b)(2) and (1)(A) of the Act. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union with respect ,to the matters found to be violative of Section 8(b)(1)(A) and (2) of the Act, as set forth in section 111, above , occurring in connection with the operations of the Association and Matson described in section I, 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. THE REMEDY Having found that the Union engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain'affirmative action designed to effectuate the policies of the Act. In formulating an appropriate remedy, consideration must be given to the matter of backpay. ' 352 DECISIONS OF NATIONAL LABOR^RELATIONS BOARD As to the violations that were the subject matter of the settlement in Cases 20-CB-1893 and 20-CB-1908, the parties agreed in that settlement that the amount due Kaplan was $3,060 and the amount due Auralle was $20.40. The Union, argued, in its brief that this case should not be decided until the monies paid under the settlement a eepient were returned to the,Union, but there has been ention by any party that the dollar figure fixed in 1A Abets ttlement was unfair. In the absence of any contention by the parties that the agreed upon backpay was other than a reasonable approximation of the amount needed to make Kaplan and Auralle whole for the losses they suffered as a result of the Union's conduct in those cases, I will accept the amounts agreed to by the parties. The net effect of this finding is that Kaplan and Auralle will keep the monies already paid to them and the Union will be liable for no further backpay in the cases-that were the subject matter of the settlement agreement. With regard to the Union's assault on Kaplan, a serious argument can be made that Kaplan can only be made whole for the losses he suffered due to the Union's unfair labor practice by the payment to him of backpay until such time as he has sufficiently recovered from the assault to go back to work. However, in dealing with this area of law, where State and Board jurisdiction overlap, the Board has not seen fit to extend the scope of its usual remedial order. In Operating Engineers, Local 513 (Long Construction Company), 145 NLRB 554, which was a case involving injuries suffered by an employee-as a result of violent unfair labor practices of a union, the Board held: We are dealing here with conduct which, though violative of the Act, is not beyond the reach of State power. The Act generally preempts State authority with respect to conduct within its purview. However, it does not preempt State authority to deal with breaches of the peace stemming from the use of force and violence in labor disputes. The States can act to enjoin such conduct,, and they can remedy the consequences of such conduct. It is thus apparent that the lack of a Board order, awarding backpay to, employees unable to work because of injures resulting from this unlawful conduct, will not leave such employees without redress against those responsible for their injuries. In these circumstances we conclude that it best effectuates the policies of the Act not to extend the scope of our remedial order beyond that of 'the traditional, cease-and-desist order for the 'following reasons: (1) The cease-and-desist order, in conjunction with the utilization of the contempt procedures provided in the Act, is well designed to prevent the recurrence of the unfair labor practices and to vindicate public rights; (2) to the' extent that the Board has power to award backpay to employees injured by Respon- dent's violent conduct, such power derives from the effect of such conduct on the employee's employment relationship; yet the employee's loss of pay may be only a small part of the total required to make him whole, which total may well include medical expenses as well as compensation for physical injury and pain, and suffering; (3) to the, extent that satisfaction of individual claims which are primarily private in nature may also serve to further the public interest in obtaining the peaceful resolution of labor disputes, such interest is equally well served by the individual's resort to those remedies traditionally used to process claims resulting from another's tortious conduct; (4) the numerous and complicated factual questions involved in settling such claims are not such questions as,fall.within the Board's special expertise, but do fall with the special compe- tence of judge and jury; -and (5) in our opinion, our exercise of such authority as may reside in the Board to award compensatory relief might,well exert an inhibito- ry' effect on the exercise of State authority, and would, in any event, complicate and confuse the issue, to -the possible detriment of -the employees whose rights we seek to protect. (Footnotes omitted.) 30 - I shall,, therefore, not recommend any backpay based on the assault. Kaplan's claim to damages based on the assault will have to be decided in the civil suit that he has brought. CONCLUSIONS OF `LAW 1. The Association and its employer-members , includ- ing Matson, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act., _ 3. By requiring as a condition of registration and referral for employment from its exclusive hiring hall that an applicant for employment pay a partial initiation fee when such applicant was not eligible for membership in the Union and -when such payment was ' not required by a lawful union security clause, the Union violated Sections 8(b)(1)(A) and ,(2) of the Act. 4. By requiring as a condition of registration and referral from said hiring hall that an applicant pay assessments to the; Union, the Union violated Sections 8(b)(1)(A) and (2) of the Act. 5. By requiring as a, condition of registration and referral from said hiring hall that an applicant pay service fees for the use of the hiring ,hall when such fees were unrelated to any hiring hall services performed for, the applicant by the Union and when fees were not due, the Union violated Sections 8(b)(1)(A) and (2) of the Act. 6. By assaulting Kaplan on September 20, 1969, because Kaplan protested the manner in which the hiring hall was being operated, the: Union violated Section 8(b)(1)(A) of the Act. 7. The aforesaid unfair labor practices ,are unfair labor practices-affecting commerce within the meaning of Section 2(6) and.(7) of the Act. 8. Except as set forth in "Conclusions of Law" the General Counsel. has not established by a preponderance of the evidence that the - Union engaged , in unfair labor practices alleged in the complaint. 9. The General Counsel has not established by a preponderance of the evidence that the , Association or 30 Accord Local 586, United Steel! Workers of America, AFL-CIO' (Inspiration Consolidated Copper Co.), 174 NLRB 189. PACIFIC MARITIME ASSN. 353 Matson engaged in the unfair labor practices alleged in the [Recommended order omitted from publication.] complaint.