Intl. Longshorement's Local No. 13

.260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's and Warehousemen's Union, Local No.13 (Pacific Maritime Association) and James' Phillips,International Longshoremen's and Ware'liohsemen's Union Local No. 13 :and- Pacific-Maritime Association. - ^ Cases `21-CB-3457 ,and 21-CB-3494, , , - July 28, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND, JENKINS On October- 30,_ 1970, Trial Examiner Maurice Alexandre issued his Decisionin the above-entitled ,consolidated proceeding finding that the Respondent had, engaged in and was engaging in certain, unfair labor, -practices ,within the meaning of_ the, National Labor Relations Act,-as-amended, and recommend- ing that it cease and desist therefrom and take certain affirmative actions, as set forth in the attached Trial Examiner's Decision.'Thereafter, the Respondent and Charging 'Party Pacific-Maritime Association filed exceptions to the Trial' Examiner's Decision and supporting briefs. Charging Party Pacific Maritime Association also filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as, amended, the 'National' Labor Relations Board has delegated its ,powers in connection with this proceeding to a 'three- member, panel.. The Board has reviewed the rulings of; the Trial -Examiner , made-,at the hearing.-and finds that, no prejudicial error, was-committed. The rulings, are hereby, affirmed. The Board has considered the= Trial Examiner'"s Decision, the 'exceptions and briefs; and the entire record in this proceeding,' and hereby adopts the findings, conclusions, and recommendations 2 of the Trial Examiner as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that Respondent International Long- shoremen's and Warehousemen's Union, Local No. 13, its officers, agents and representatives, shall take the action set forth in the Trial Examiner's recom- mended Order as herein modified: Substitute the following for paragraph 1(d) of the Trial Examiner's recommended Order. "(d),Refusing,to bargain in good faith with Pacific Maritime Association by insisting that applicants for Class- B registration- be sponsored by -members of Respondent or by former members with a withdrawal card, or by attempting to,obtain class B registration preference for its members, or by unilaterally chang- ing any of the terms or conditions` of employment relating to registration or dispatch of longshoremen at the port ofLos Angeles-Long Beach." '1 Included in this proceeding is a 34-page stipulation ,- together with approximately 89 exhibits. In reaching its decision herein, the Board has considered the entire document and all exhibits attached thereto. The Trial Examiner's ruling granting , the General Counsel's motion to strike certain portions of the' stipulation is hereby reversed. 2 In its exception Pacific` Maritime , Association requests ' that we eliminate a possible , narrow interpretation ` of -the 'Trial Examiner's recommended Order. We find merit in this exception. TRIAL EXAMINER'S DECISION MAURICE ALEXA>•IDRE,-Trial Examiner: this case was heard in Los Angeles, California, on February 18, 19, 24, April 7, and June 16, 1970, upon a complaint issued on ,October-IL-1,969.1 andupon.a further complaint issued on December 3, 1969,2 both of which were consolidated4by an ;order- issued on the latter date by -the =Regional Director. The consolidated complaints alleged that Respondent had violated -Section -8(b)(1)(A),- (2), and, (3) of the, National Labor Relations Act,, as amended. Respondent's answer denied commission of the unfair labor practices alleged. Upon the entire'record,3 my observation of the witnesses, and the briefs filed by the General Counsel, Respondent, and PMA, I make the following: 1 Based upon a charge filed on September 15, 1969 , by James Phillips. 2 Based upon a charge filed on November 3, 1969, by Pacific Maritime Association, hereafter called PMA. 3 The exhibits received in evidence include, inter alia, the following; (a) Joint Exh. l-a copy of certain pages of the transcript of testimony received in International Longshoremen 's and Warehousemen's Union, Local No. 13 (Gatlin, Phillips and PMAA 183 NLRB No. 28 (hereafter referred to as the Gatlin case); and (b) Joint Exh. 2-a lengthy stipulation (with numerous attached exhibits) executed by the General Counsel, Respondent and PMA on May 25, 1970, providing that witnesses, if called,would testify under oath to the information set forth therein. Because of several changes to which the signers had agreed and, pursuant to their request, permission was given to submit a retyped copy of the stipulation in place of the one received in evidence. By letter dated June 23, 1970, such retyped copy was transmitted to me together with a corrected copy of Exh. S-80 attached thereto. It is hereby ordered that the said letter be, and it hereby is, received in evidence as TX Exh. 8. It if further ordered that the retyped copy of the said stipulation and the corrected Exh. S-80 be, and they hereby are, respectively substituted in place of the documents received in evidence as Joint Exh. 2 and Exh. S-80 attached thereto. At the hearing, I reserved ruling on Respondent's motion to strike Joint 192 NLRB No. 50 INTL. LONGSHOREMEN'S LOCAL NO. 13 261 FINDINGS AND CONCLUSIONS4 1. THE UNFAIR LABOR PRACTICES A. The Evidence The facts are essentially undisputed.5 PMA is an association which acts , as collective-bargaining representa- tive for employer-members engaged in shipping, stevedor- ing, and terminal operations on the Pacific Coast, including the Port of Los; Angeles-Long, Beach. PMA and Respon- dent's parent organization, herein called the International, are, and at all times have been, parties to a collective- bargaining agreement which is binding upon Respondent. Among; other things, the agreement provides that all men shall be' dispatches longshore jobs through hiring halls operated by a- joint port labor relations committee for each port covered by the_agreement 6 Such committees are made up of representatives of PMA'and of the International, each side having, equal voting power. Persons holding designated offices ,in Respondent are the International's representa tives on'the committee which operates the hiringhalls at the Port of 'Los Angeles-Long Beach (hereafter called the Joint Port Committee). Under the agreement, preference in dispatch to longshore jobs is , given , to registered longshoremen, i.e., first preference to cl'ass' A or fully registered longshoremen, and second preference is given to class B. or limited registered men. When no registered men are available to fill longshore jobs, unregistered man may be dispatched. The Joint Port' Committee controls the registration lists, and has the power to make additions to,- and deletions from, the lists. However, the men are dispatched by dispatchers who are elected byRespondent's membership. Prior to 1965, "sponsorship," also referred to as the "San Pedro' formula," had' been used in selecting men for registration. ,A sponsor was a member of Respondent, or a former member with a valid withdrawal card, , who recommended the applicant for registration. In 1965, the Joint Coast Committee, decided that the sponsorship system should be used,during that year, but not thereafter. On December 20, 1966, the Joint Coast Committee authorized- the Joint Port Committee -to add 200 men to the class B registration- list. Thereafter, the Joint Port Committee recieved• applications from over 3,400 individuals interested Exh. 1. The motion is denied. In its brief, Respondent makes certain objection to, and/or motions to strike, numerous specified and unspecified exhibits received in evidence. No useful purpose would be served in reciting the voluminous reasons offered by Respondent with respect to such exhibits. I grant the motion to' strike insofar as it applies to GC Exh. 22(a) through 39. `Those exhibits were offered in support of the General Counsel's motion to strike the answers herein, following the failure of Respondent's counsel of record to appear at ,a regularly scheduled hearing on April 7, 1970, despite the denial of Respondent's request for, a further continuance to some time in May. Since the motion to strike the answers was thereafter withdrawn, the stricken exhibits are no longer immaterial . In all other respects, the objections are overruled and the motion to strike is denied. A The complaint alleged, and the answers, by failing to deny, admitted' facts which, I find, establish that PMA and its employer-members are employers engaged in , commerce and'in operations affecting commerce within the meaning of the Act. I further find that Respondent is a labor organization within the meaning of the Act. S I find as facts the information which appears in par. I through 62, and in the first two sentences of par. 63, of the stipulation referred to as Joint in registration. The question of the methods to be'used in selecting men for registration- was first discussed by the Joint Port Committee on June 15,' 1967: During -the-course of numerous meetings, Respondent insisted that sponsor- ship be used, PMA objected, and an-impasse was reached. On March 25, 1968, the" Joint Coast Committee authorized the Joint Port Committee to increase the number of class B' registrants , from 200 to 400. The registration dispute was ultimately- submitted to arbitration. By an, awarddated March 10, 1968, the arbitrator decided, inter. alia, that Respondent was in , violation of the' collective-bargaining agreement by- insisting upon .,the use ,of sponsorship in awarding class B- registration and, in effect;,' directed Respondent to discontinue such insistence.,- respondent, however, refused'to participate with PMA in implementing the award, and continued to insist upon sponsorship. in late February 1969, Phillips, one ^ of the _ charging, parties, herein, asked -Godfrey, Respondent's secretary-- treasurer, what ' consideration was being, given to, his application- for class B, registration filed in June ,1967: Godfrey asked Phillips whether' he, had a sponsor and,. on receiving a negative reply, stated that everyone had to have a sponsor and that nothing could be done for=Phillips until he obtained one. In May 1969; - an.unfair, labor practice complaint was issued against Respondent, which ,resulted- in a decision by the Board that Respondent had violated Section- 8(bX1)(A) and (2y-of the Act by "requiring that applicants for registration-Las ;Class' ,B longshoremen be, sponsored by Class A ,registrants or ;,members. -of" Respondent. Gatlin case, supra, fn: 3. Following _ the arbitration. award' of , March 10, 1968, Respondent notnonly, continued to insist 'upon the use-of sponsorship in- the selection of class ^B-, registrants,; but it unilaterally changed the method; of • dispatching'-unregis- tered men to longshore jobs: Prior ;to that-date,-class A and B -registrants were _ dispatched;'from the 'central dispatch hall,7 and unregistered men were dispatched froma so- called casual Mall and, from, "runner",locations.s On July:Z 1968, the Joint, Port Committee, decided to , change the procedure for selecting ally unregistered =longshoremen for dispatch. the new plan -provided-, that =effective- July- 15, certain groups of men with experience in waterfront-related work would be- given identification-cards,and would altbe temporarily dispatched by rotation tolongshore jobsfrom a Exh., 2. 1 grant the General Counsel's motion to strike the balance, of the stipulation through the first paragraph of par. 77, together with the exhibits referred to therein, since these relate to matters that occurred after February 12, 1970, and, therefore, are not material to any ' issue Before me in this proceeding: - 6 The agreement also createda Joint Coast Labor Relations Committee, which has coastwide jurisdiction to' review decisions relating g to, the operation of the hiring'halls. ^- r A small number of "commercial warehousemen were also dispatched from the central ` hall. These are members of Respondent who work primarilyp in warehouse operations of employers wh`o'" ;have collective bargain in agreements ith ResPond'ent``Sad who, on oce on"s; when ,g wi _ insufficient warehouse work is available, are`dispatch j o longshore work. They are not involved" in this proceeding and-no farther reference to them is made in this decision. 8 Runner locations are those where 2lersons on strike industries other' than ,longshoring_congregate 'for the purpose of obtaining g longshore jobs. For each such location a representative of the strildsig union goes to the central hall where, he is given dispatch` slips, He Sakes the slips to the, runner hall and distributes them. 262 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD new hall known.as the "Dispatch Hall for Extra Longshore Work" (hereafter,called the extra hall).9 From July 15 until some time in September 1968, this procedure was followed, ,However, in the early fall,of 1968, Respondent unilaterally changed the procedure, as a result of which its ,dispatchers again began to dispatch strikers to. longshore jobs from runner 'location09. In addition,` beginning in early January '1969, Respondent's dispatchers unilaterally began `toy dispatch certain other unregistered men, known-as terminal warehousemen ; to longshore jobs from the central hall , instead of from the extra hall, as agreed.," These individuals were members, of Respondent in a category of membership known as TW membership.12 Prior to January 16, 1969, 41 TW members of Respondent were employed-in terminal warehouse work. Between January 16 and September, 6;;1969, additional terminal warehousemen, were taken , into ,membership ;by Respon- dent, so that on the latter date, there were approximately 635, such TW - members.13 The parties. stipulated that Respondent added, to , the number .of- its TW members in 1969 "because of increases in terminal warehousemen's jobs, because of-the hope that it would gain more terminal - warehousemen's jobs and because of the impasse as to• registration offlongshoremen." 14 In- January 1969, relatively few " TW . members were dispatched to longshore , jobs . from' the central hall as compared with unregistered nonmembers dispatched to such jobs from the extra hall. During the ensuing months, however,..the number of men dispatched from the extra hall-, decreased, while the number of TW members dispatched from the central hall increased . "On "approximately half of the days in September and- October, there were no dispatches to,longshore jobs from the extra hall. Yet on the same days, a substantial number of TW members were dispatched fromzthe central hall15 In late,,September or early -October- 1969, representatives of PMA and Respondent met to discuss the impasse over the selection , of class B registrants. McEvoy, the PMA representative;: suggested, that the parties consider a list of 475 applicants which had previously been prepared and presented by PMA. At, the request of Johnson, Respon- dent's"representative, PMA furnished a copy ,of the list a few dais , later. . At another meeting late :in October, Respondent proposed that ,all , the men on the said list who had -100 or, more hours of longshore work in 1969 should receive class B registration. Examination of the list 16 discloses that the greatbulk of those who worked 100 hours The new, procedure is set forth ' in 'Exh. S-13-A,"attached to` and referred to in par. 17 of Joint Exh . 2. Sec. 5 of the said exhibit states that all dispatches at the extra hall "shall be on a rotational basis". ib Sins-the General Counsels"brief (p. 4) points out that the complaints herein do not attack `that'practice, no'further reference'is made thereto. 11 Terminal warehousemei were employed in the performance of so- called terminal >warehouse'work under contracts between Respondent and certain` warehousing "companies. When not needed "for work under' these contracts, they could be ;dispatched as unregistered nien 'to loagshore jobs. iY Respondent created this category' of membership during its organizational campaign ` which resulted in Respondent's certification in January 19x8 asargaining'representative of the terminal warehousemen of some of the warehouse companies. 13 Except for three or four individuals , each of those so added-to Tw membership was'required to, have, and'had, a "sponsor", i.e., a meitber of Respondent who - recommended the terminal warehouseman' for membership. Before being^accepted into membership, each was interviewed or more during the said period were TW members of Respondent. PMA rejected the proposal, stating: It was unacceptable from our point of view because the criteria of working experience on the waterfront during the year 1969 would obviously result in a discriminatory situation because of preference of employment which had been given starting in January of 1969 to a; group of men who were working on the Waterfront under what we call TW numbers , men who were terminal warehousemen who 'had- been 'recruited by, Local 13 who were not jointly registered longshore men but who'were members of [Local 13I and who were getting dispatch status out of the longshore 'dispatch hall. On October 31, 1969, the use of the temporary extra hall ended `because of an eviction notice r"Ved b the Joint Port Committee. Thereafter,' Respondent's- 'dispatchers dispatched unregistered men to longshore jobs only from the _ central hall or from runner locations . As a' result, Respondent's. 'TW members `received the bulk of -the dispatches as compared With other unregistereii ;n'en,17 Thereafter, PMA and Respondent discussed registration, 12, matters on a number of occasions,,but prior'to February 1970, Respondent refused to participate in implementation of the arbitrator's award which, as noted above, had` directed it to discontinue its insistence upon the use of sponsorship in selecting men for class B ` registration. However, on the latter date, i.e., after the complaints herein ' had been issued; and 6 "days before the. hearing began,` Respondent's;meiiibership voted to implement the`award. , ,B.- Concluding., Findings 1. A summary of the undisputed , facts shows 3„tthe following: ,the collective-bargaining agreement, to which Respondent has beew bound provides for the, dispatch of men to, longshore jobs solely through hiring ha-lls ,The halls, are,operated by a Joint Port , Committee,,which, has, sole authority - to, change, dispatch procedures. However, dis- - patches are made by dispatchers elected by Respondent's members. Class A and B registrants -are ' entitleed to, be dispatched to available longshore jobs before unregistered men, and all eligible unregistered men are dispatched in rotation to, the ,remaining jobs.is Prior to January-1969, registered, men were dispatched1romtithe central ,hall,- and unregistered men were dispatched from the extra hall., In the early part of that month, Respondent beganto° increase by Respondent's registration advisory,' comiruttee;'which considered about 2,000 applications before making its selections. .14 During representative, periods between.. Jana, ry ' 1, 1969, and, the., execution of Joint , Exh. 2 on May 25, X1970, about 80 TW Members, of Respondent were, steadily employed in terminal , warehouse work under contracts between Respondent and, , several companies. In -addition, an average of about six extra -TWmembers a day were employed in other terminal warehouse jobs covered by Respondent's contracts. ""' - i5 Based on Exh. S-17,'attached to'and referred to in par. 23 and`34'of Joint Exh. 2. -1 1- I 16 The list received in evidence as GC Exh . 41 "showed the applicants' names, the number of hours worked by` each during the-first 9 months"of" 1969, and whether or not each was a Tw member of Respondent. 17 See In. 15, supra is No claim is made by the Gen_eral' Counsel that such dispatch preference violated the Act. - INTL. LONGSHOREMEN'S LOCAL NO. 13 263 the number of its TW members, who were eligible for dispatch to longshore jobs.as unregistered men. At the same time, Respondent unilaterally began to dispatch its TW members from the central hall instead of from the extra hall as agreed. `Thereafter, the number of TW members so dispatched continued to increase-steadily, while the number of unregistered nonmembers dispatched from the extra hall continued to decrease. Following the closing of the extra, hall in October, 1,969:-Respondent's TW members received the bulk of the dispatches given to unregistered men. These facts, at the very least, create a presumption that Respondent failed to follow the required rotation in dispatching unregistered men, and gave preference to its TW members. Such a presumption might be rebutted by evidence that despite the unilateral change in dispatch procedure, Respondent nevertheless followed rotation, and that the greater proportion of dispatches received by TW members resulted from legitimate circumstances, as for example, unavailability of unregistered nonmembers. However, Respondent presented no such evidence. I accordingly find that by giving dispatch preference to its TW members over nonmembers, Respondent violated Section 8(bX 1)(A) and, (2) of the Act. International Brotherhood of Teamsters, etc., Local No. 222 (Norman B. Cram), 173 NLRB No. 81. In addition, Respondent compounded its illegal conduct by making sponsorship by a member a prerequisite to obtaining TW membership. As a' consequence, TW members were given unlawful dispatch preference not only over unregistered men who had no wish to become TW members, but also over those who could not obtain a sponsor.'Cf. Gatlin case, supra 19 2. A summary of the undisputed facts also shows the following. In 1966, the Joint Port Committee received authorization to increase the number of class B registrants, and thereafter received numerous applications from interested 'individuals. By its insistence upon the use- of sponsorship for class B registration, conduct held to, be unlawful in the Gatlin case, - Respondent prevented enlargement, of the class B registration list. As a conse- quence, it was -necessary to fill longshore jobs with a larger number of unregistered men than would have been dispatched had the class B registration list been augmented. In January 1969, although the amount of available terminal warehouse work was limited,20 Respondent began to increase the number of its TW members by admitting to membership only applicants who were sponsored by a member of Respondent . Such increase in TW membership was admittedly motivated in part by the impasse relating to class B registration. At the same time, as, found found above, Respondent unlawfully began to give dispatch preference to its TW members over unregistered nonmembers, thereby 19 In that case, the Board found that there was no probative evidence in the record which would establish that the preferential dispatch of, terminal warehousemen was , directly related to Respondent's unlawful sponsorship requirement.-, The Board then added: "But we are not blind to the possibility of the utilization of various means to effectively preserve the practice of sponsorship herein declared unlawful" Such evidence is present in the record of the instant case and it is clear that the possibility posed by Board became a reality. 2D - See fn. 14, n pra u PMA contends that a violation of Respondent's duty, to bargain in good - faith is also shown by its pattern of delay and obstruction irk carrying out its obligations as a member of the Joint Port Committee under the enabling the former to obtain more longshore experience than the latter. When the Joint Port Committee met in late September or early October 1969 to discuss the impasse in class B -registration, PMA suggested consideration of a list of 475 applicants which it had prepared. Respondent, however, sought to capitalize upon the longshore experi- ence obtained by its TW members through-'its unlawful conduct. It proposed that class B registration be given to- those on the list who had 100 or more .hours .of-longshore work in 1969. Such proposal would ' have - resulted in according class B registration preference , and hence dispatch preference, to Respondent's' TW members over nonmembers, since the great , bulk of the men on the list, who satisfied the proposed criterion were , TW members., Although PMA rejected such a preferential proposal, Respondent continued to insist upon the'use of sponsorship in selecting men for class B registration until February'12, 1970. - - Upon these facts, I find that Respondent continued until February 12, 1970, to engage in the same conduct found unlawful in the Gatlin case, i.e., its insistence upon the use of sponsorship in connection with, class ' B registration. I further find that Respondent's entire course of conduct constituted a maneuver to obtain - class B registration preference, and hence dispatch preference,, for its: TW members over other applicants for registration who did-not. desire or were unable to obtain TW-membership;'and that by such maneuver Respondent prevented - nonmembers from obtaining class-B registration,:and; thus employment, prior to February 12, 1970. Such conduct violated, Section 8(b)(l)(A) and (2) of the Act. Cf. International ,Union of United Brewery Workers, Local No. 8 (Considine Distributing Co.), 166 NLRB 915. Finally, I find that by unlawfully insisting upon the use of sponsorship in class B registration and by unlawfully attempting to obtain-class B'registration preference for ,its members, Respondent created-and'perpetuated an' impasse in its negotiations with PMA until Respondent abondoned its illegal conduct on February 12 , 1970. By such conduct, Respondent was guilty of a- 'refusal to bargain, thereby violating _ Section 8(b)(3) of the Act. Cf. Muskegon Bricklayers Union No. 5, etc., 152 NLRB 360, 166, mod. 378 F.2d 859 (C.A. 6); cf. also Bricklayers,& Masons Internation- al 'Union Local'No. 3, 162 NaLRB 476.21 3. The cases cited above `refute - the' contention by Respondent that its conduct was not-the type of conduct which Congress intended to reach by Section- 8(b)(1)(A) and (2). Equally without merit is the contention that a violation of that section has not been , established ,because the record fails to show unlawful discrimination in respect of dispatch or registration toward any,^specific applicant for collective-bargaining agreement. The complaint does not allege a violation of Section 8(bX3) by such conduct. Since the General Counsel is domimu Titus by virtue of, Section 3(d) of the Act, he "has the power to decide whether to issue a complaint . . . and to determine what its legal theory should be:' Local 282, International Brotherhood of Teamsters v. N.LItB., 339 F.2d 795, 799 (C.A. 2); accord: Waitresses & Cafeteria Women's Local No. 305 (Haleston Drug Store, Inc.) 86 NLRB 1166, 1140, `affil. 187 F.2d 418, 421 (CA. 9), cert, denied 342 - U.S. 815; Tulsa General Drivers Warehousemen & Helpers, Local Union 523 (Rocket Freight Lines Ca1 176 NLRB No. 94. 1 therefore find that the issue raised' by PMA is not properly before me. 264` DECISIONS OF NATIONAL LABOR-RELATIONS `BOARD employment or for' registration. A'findingthat such section has been "violated' •is - not precluded where, as here, the record establishes-a -pattern of unlawful discrimination in favor of members as.'a'group and against nonmembers as a group;22 , - . _ - ' 4. -, The- charge, relating, to the unlawful dispatches was filed son September 15,.,1969. Respondent ,contends that, there is no 'evidence of any such violation. within the 6 months preceding that, date-, i.e., after March 15,1969; and• that if ' any violation occurred before the latter date, it is time-barred by ^ Section 10(b)- off the Act. I disagree. The record establishes' that throughout 1969,, Respondent continued- to_ give dispatch preference' to-its TW members over-other- unregistered men who were not members. Since, it is apparent that such preference continued well .after March 15, 1969, Section,10(b) does, not -bar a finding that' the preference was unlawful.- The The charge relating to Respondent's unlawful conduct involving registration, was filed on November 3, 1969. Respondentcontends;that the decision in Local Lodge No. 'i 1424 v.'1V.L.RB., 362 U,S. 411,unlawfutconduct on its part committed prior to the. limitations period, i.e., prionto May,,, 3,v 1969,' cannot be used, to taint conduct occurring-within-+. such period. The record shows that Respondent's course-of- conduct;' which;- began- with its- insistence upon the use of sponsorship -condemned in.the,'Gatlin case and-which later blossomed into the,maneuver and refusal to bargain found , herein to:be,unlawful,^,continued until February 12, 1970, i.e., long '.beyond the cutoff date. It follows that Section 10(b) -does -not -bar. a'finding that'the conduct in question was unlawful. CONCLUSIONS OF LAW 1. , By giving preference,, to-, its W . members over. nonmembers in-dispatching-unregistered-men to longshore jobs-under its exclusive hiring-hall, arrangement," as found, herein,';,Respondent violated Section 8(b)(IXA) and (2) of the Act. , 2. ; By requiring that applicants for class B, registration, be,-sponsored by a member of R e s p o n d e n t o r by a ,former member-.,with a,, withdrawal card, as found herein, Respondent violated Section 8(b)(IXA) and,(2) of the Act. 3. By engaging in a,.maneuver to obtains preference in, class B, registration'-for, its TW members over nonmembers, thereby ;preventing, the - registration and subsequent dis- 22 PMA argues that' because of Respondent's continued ' unlawful insistence upon, sponsorship, Phillips'=was unable to obtain class B registration and 'consequently lost referrals, to jobs which' he'undoubtedly. would otherwiseehavejecqiyed.-Accordingly, PMA requests' , finding, that Respondent; violated, Section 8(bX2) by preventing Phillips from being assigned ' to his ' share , of-the fongshore work, and an order requiring Respondent to make-Phillips whole.o _ It is true that had Phillips been given class B, registration, ' he undoubtedly' would have" received 'referrals thereafter inasmuch as the` record ' shows`iminerous' dispatches of unregistered men during `1969, thereby demonstrating `thatthere weremore jobs than' available'class''A and B registrants. The; difficulty is that the evidence does not support+a,- finding - that 'Phillips- ,would: have receeved class B registration even if sponsorship'had not been required. The record shows that it was necessary for applicants to satisfy certain requirements in order to obtain class B registration, e.g., , completeness ,of application for, registration, work experience, availability, for fall-time employment, satisfactory, health,,-and absence of criminal -record 'Sir. the evidence does s not establish that Phillips would have been able to satisfy the necessary requirements, I ' patch of,' nonmembers on a ' nondiscriminatory basis; as' found herein, Respondent violated'Section 8(b)(1)(A) and (2) of the Act. 4.' By unlawfully: insisting upon the' use of sponsorship in class B registration, and by unlawfully attempting to obtain class B registration preference for its TW members, thereby , creating and perpetuating, an ., impasse in its negotiations =with-PMA until Respondent abandoned its illegal contract, Respondent- violated'Section-8(b)(3) of the Act. 5.', The aforesaid unfair labor' practices affect commerce within'the meaning of the Act. REMEDY I recommend that Respondent cease and-desist from its, unfair labor practices,23 and that it take certain affirmative action necessary to- -effectuate the policies of the Act. Among-other things, I recommend that respondent exercise its dispatch authority-in a nondiscriminatory manner,,,,that, it maintain. records: accurately-and fully, reflecting the basis,' on which each dispatch is, made, and that such records 'be made available for inspection by the Regional Director or. his agents 24 , I further, recommend that Respondent make, whole all applicants for employment for any loss of earnings they may have suffered by reason, of, Respondent's discriminato- ry exercise of, its, dispatch, authority in favor, of ;its ^TW members from, and after March,15,1969, i.e., the beginning of- the Section 10.(b) limitations period.25 Such x loss -,of, earnings shall be computed in accordance with the methods prescribed in F. W. Woolworth Co., 90 NLRB. 289,, and Isis Plumbing & Heating Co., 138' NLRB 716. Finally,, I recommend that upon request; Respondent shallbargain v-in - good; faith 4 with PMA respecting the,- registration of class BIongshoremen; and thatif agreement is zreached,, °Respondentshall proceed with such registration on a nondiscriminatory basis. - Upon the foregoing ;findings of fact, conclusions of law, and,the entire record,, and pursuant to Section 10(c) of the, Act; I hereby issue,the following recommended: ORDER Respondent,, its officers,,,. agents, and representatives, shall: cannot find that he would have been' given class B 'regi tration even if Respondent had not insisted'upo'n sponsorship. Accordingly, I cannot find that'he was unlawfully-denied dispatch. ' 23 Since the Board ,in the ` Gatlin case ordered Respondent to, cease Viand desist- from requiring- the use of sponsorship- in connection with class B registration, it is unnecessary to repeat such an order herein. - 24,Cf. International Association of'Heat'&'Frast Insulators, and Asbestos Workers Local No.' S3 (Mcearty & Armstrong),, 185 NLRB ' No. 89.' 25 ibid. There may be difficulty in ascertaining' the identity of the unregistered men who were disciiminatees and'the amount of their earning losses. However, some help may be obtained front the lists like those in Exh: S 75 and S 77, attached to aind'respectively'referre.d Win 30 and par. 32 of Joint Exh. 2. Exh. S -75 contains'the name of each unregistered longshoreman who worked at the Port of Los Angeles-Long Beach `in 1969. It also shows his payroll, work number, and identifies those who are 'IV members. Exh. S-'777 shows the number of"liours worked during the week of October 25 to November' 1, 1969, be each'such longshoreman, although ii identifies them by'payroll or ivork'nuinber rather than by name. INTL. LONGSHOREMEN'S LOCAL NO. 13 265 1. Cease and desist from: (a) Discriminating in favor of its members and against nonmembers in dispatching unregistered men to longshore jobs 'from hiring halls operated `by the Joint Port Labor Relations Committee for the Port of Los Angeles-Long Beach. (b)' Attempting to obtain a preference in class B registration for its members over nonmembers. (c) Preventing or attempting to prevent applicants who are not members of Respondent from obtaining class B registration. (d) Refusing to bargain in good faith during negotiations with Pacific Maritime Association by insisting that applicants for class B registration be sponsored by members of Respondent or by former members with a withdrawal card, or by attempting to obtain class B registration preference for its members, or by unilaterally changing any of the terms or conditions of employment, relating to registration or dispatch of longshoremen at the Port of Los Angeles-Long Beach, established pursuant to a collective-bargaining agreement executed by Pacific Mari- time Association and International Longshoremen's and Warehousemen's Union. (e) In any other manner restraining or coercing nonmembers in the exercise of their rights as employees under Section 7 of the Act. 2. Take the following affirmative action: (a) Exercise its dispatch authority under its exclusive hiring hall arrangement in a nondiscriminatory manner. (b) Maintain permanent records accurately and fully reflecting the basis on which each dispatch is made. (c) Upon request of the Regional Director for Region 21, or his agents, make available for inspection at all reasonable times, all its records relating to the operation of its dispatch system. (d) Make whole any and all applicants for employment for any loss of earnings they may have suffered by reason of Respondent's discriminatory exercise of its dispatch authority, to the extent and in the manner set forth in the Section entitled, "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all documents, records, and data, including those relating to registration and job dispatch, necessary to compute and analyze the amount of backpay due under the terms of this Order. (f) Upon request, bargain in good faith with Pacific Maritime Association respecting the registration of class B longshoremen; and if agreement is reached, proceed with such registration on a nondiscriminatory basis. (g) Post in its business offices, meeting halls, hiring halls, and other places where notices to members and applicants for employment are customarily posted by Respondent, copies of the notice attached hereto and marked "Appendix."26 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by a representative of the Respondent, shall be posted immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places. Reasonable steps shall be taken by Respondent to insure that said, notices are not altered, defaced, or covered by any other material. (h) Notify the Regional- Director for Region 21, in writing, within 20 days, from the receipt of this Decision, what steps have been taken to comply herewith.27 26 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusion, ,recommendations, and Recommended<Order _herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes . 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." 27 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to'read : "Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith." APPENDIX NOTICE To ALL MEMBERS AND APPLICANTS FOR EMPLOYMENT POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: After a trial at which all sides had a chance to give evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. WE WILL NOT discriminate in favor of our members and against nonmembers in dispatching unregistered men to longshore jobs. WE WILL NOT attempt to obtain a preference in Class B registration for our members over nonmembers. WE WILL NOT prevent or attempt to prevent nonmembers from obtaining Class B registration. WE WILL NOT unilaterally change any of the terms of conditions of employment, relating to the registration or dispatch of longshoremen at the Port of Los Angeles- Long Beach, established purusant to a collective- bargaining agreement between Pacific Maritime Asso- ciation and International Longshoremen's and Ware- housemen's Union. WE WILL NOT in any other manner restrain or coerce nonmembers in the exercise of their rights as employees under Section 7 of the Act. WE WILL exercise our dispatch authority in a nondiscriminatory manner. WE WILL keep permanent records which will accurately and fully disclose the basis on which each dispatch is made. WE WILL, upon request of the Regional Director for Region 21 or his agents, make available for inspection, at all reasonable times, any records relating to the operation of our dispatch system. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' WE WILL make any and all applicants for employ- ment whole for ° any loss of earnings they, may have suffered because of the discriminatory exercise of our dispatch ,authority. WE wILL, upon request, bargain in good faith with Pacific Maritime Association respecting the registration of Class B longshoremen ; and if -agreement is reached, 'proceed with such registration, on a nondiscriminatory basis. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL No. 13 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 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- porvisions, may be - directed to the Board's Office, Eastern Columbia Building, 849 South,. Broadway, Los Angeles, California 90014, Telephone 213-688-5229.