Pacific Maritime Association

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pacific Maritime Association and Wayne Blackwell International Longshoremen's and Warehousemen's Union, Local No. 13 and Wayne Blackwell. Cases 21-CA-9597 and 21-CB-3803 November 23, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 26, 1971, Trial Examiner David E. Davis issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondents filed cross- exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions to the extent consistent herewith,' and to adopt his recommended Order. 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 and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 1 In adopting the Trial Examiner's conclusion that Respondent Association and Respondent Union did not violate Secs. 8(a)(1) and (3) and 8(b)(1)(A) and (2) of the Act, we do so based on the General Counsel's failure to meet his burden of proving that, as alleged in the complaint, terminal warehousemen who were members of Respondent Umon were unlawfully dispatched to longshore work in preference to visiting limited registered Class "B" longshoremen and extra longshoremen. We note that the General Counsel's witnesses testified that they had arrived late at the dispatch hall and had no knowledge of who had been dispatched prior to their arrival, they had not made known to the dispatchers their availability for work, they did not know whether terminal warehousemen who were being dispatched from the hall while they were present were dispatched to nonlongshore work or to longshore work, and they had no independent recollection of those days on which they failed to get work other than their logbooks which contained patently maccurate entries. Nor does the other evidence establish a continuation of the practice of unlawful preferences which the Board found to exist in International Longshoreman's and Warehousemen's Union, Local No. 13 (Pacific Maritime Association), 192 NLRB No 50. In these circumstances, we find there is insufficient evidence that Respondents engaged in conduct violative of the Act TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Trial Examiner: These consolidated cases were tried before me at Los Angeles, California, on April 5, 6, 7, 8, and 13, 1971. The charges were filed on October 16, 1970, by Wayne P. Blackwell, an individual, and the consolidated complaint was issued on January 21, 1971. The charge in Case 21-CA-9597 alleged that within the past 6 months the Pacific Maritime Association, and its member companies, herein collectively referred to as Respondent Association or Respondent Employer, violated Section 8(a)(1) and (3) by failing and refusing to hire 11 named and other unnamed employees because they were not members of International Longshoremen's and Ware- housemen's Union, Local No. 13, herein called Respondent Union. The charge in Case 21-CB-3803 alleged in similar language that Respondent Union violated Section 8(b)(1)(A) and (2). The chief allegations of the consolidated complaint may be summarized as follows: 1. Respondents are bound by a collective-bargaining agreement which provides for hiring of longshoremen through a jointly operated hiring hall. 2. The agreement provided that the order preferences for dispatch from the hiring hall shall be as follows: (a) "A" longshoremen, (b) "B" longshoremen, and (c) "extra" longshoremen. 3. That from 1966 to August 1969 the 11 named employees and other unknown persons "were accorded, by Respondents, the status of being dispatched after the dispatch of `B' longshoremen and before the dispatch of `extra' longshoremen." 4. Respondent Union is also a party to a collective- bargaining agreement with certain employers principally engaged in warehouse operations in the Los Angeles area who are not engaged in longshore and stevedoring operations. 5. Respondent Union, upon request, dispatches to the employers referred to in paragraph 4, warehousemen and warehouse workers referred to as "terminal warehouse- men" who are required to be members of Respondent Union. 6. Respondent Union at all times material herein has dispatched and continues to dispatch "terminal warehouse- men" to longshore employers for longshore work ahead of the persons named in the complaint and other unknown persons and "extra" longshoremen who are not members of Respondent Union. 7. Prior to March or April 1969, Respondent Union solicited applicants for membership as "terminal ware- housemen" and accepted approximately 1,000 who were required to be sponsored by a past or present member of Respondent Union. Only the acts described in paragraph 6, above, (5(e) in the complaint) were alleged as constituting violations of the Act. Respondents, while admitting some of the allegations of the complaint, denied that they had committed any violations. Respondent Association, in addition, pleaded that even if violations of the Act were found that it should be exonerated because of extenuating circumstances. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, Respondent Association, and Respondent Union, I make the following: 194 NLRB No. 42 PACIFIC MARITIME ASSOCIATION 295 FINDINGS OF FACT 1. JURISDICTION Respondent Association, a California corporation with places of business in Washington and San Francisco, California, is composed of various employer-members engaged in longshore and stevedoring operations in the vicinity of Long Beach and Los Angeles, California, and other Pacific coast ports. It acts in behalf of its members as their collective-bargaining representative in a multiemploy- er collective-bargaining unit. The employer-members of Respondent Association annually receive in excess of $50,000 for services they perform in connection with the transportation of goods and passengers between the State of California and other States and foreign countries. Respondents admit and I find that Respondent Association and its employer-members individually and collectively are now, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Statement and Preliminary Findings The General Counsel requested that I take official notice of the Decision of Trial Examiner Alexandre in Cases 21-CB-3457 and 21-CB-3494.1 I declined in accordance with standing Board policy that a Trial Examiner's Decision which is appealed to the Board does not constitute a final decision. The General Counsel then sought to introduce certain evidence which was stipulated into the record by the parties during the course of the hearing in the proceeding before Trial Examiner Alexandre. Upon objection by the Respondent Association and Respondent Union, I rejected the proffered evidence and placed the documents in the rejected file of exhibits.2 In support of the admissability of the rejected documents, the General Counsel in his brief cited certain cases including Douds v. Seafarers ' International Union, 148 F.Supp. 953 (D.C.E.N.Y.). Because of the Douds case and other case cited therein , I now reverse my ruling with regard to the admissability of rejected exhibits proffered by the General Counsel as General Counsel's Exhibits 2,3 9(a)(b)(c), and 10, and they are admitted in evidence: 4 On the other hand, I affirm my refusal to take official notice of the Decision of Trial Examiner Alexandre in the case referred to above as TXD-(SF)-166-70, B. Section 10(b) and the Applicable Law The proviso to Section 10(b) of the Acts circumscribes and limits not only the issuance of a complaint by the General Counsel but also precludes the Board from finding that any event or conduct occurring 6 months prior to the filing of the charge constitutes an unfair labor practice. As the charges in the instant cases were filed on October 16, 1970, the 10(b) limitation period commenced on April 16, 1970. Under the circumstances, I am, therefore, precluded from finding an unfair labor practice based on any conduct or event occurring prior to April 16, 1970. The General Counsel conceded as much when during the course of his examination of witnesses concerning events antedating April 16, 1970, he repeatedly stated that such testimony was offered as background only. The testimony therefore was received over the objections of Respondent for that limited purpose. General Counsel's Exhibit 2, however, was proffered on the basis that it contained admissions by Respondent Association and by Respondent Union. As noted above I rejected this exhibit at the hearing. I now, admit it for all purposes. I have concluded after careful examination of General Counsel's Exhibit 2 that whatever admissions may be drawn from the documents concern events antedating April 16, 1970. Accordingly, in the determination of the merits of these cases, it becomes necessary to weigh in proper perspective events and conduct as well as admissions that deal with matters occuring prior to April 16, 1970. The United States Supreme Court in its landmark decision concerning Section 10(b)6 recognized that the quantum of evidence found within the limitation period is the controlling factor in determining whether or not unfair labor practices have been committed. Prior to the 1 TXD-(SF)-166-70 2 G.C. Exhs. 2,9(a), (b), and (c), and 10, in rejected exhibit file. 3 G.C. Exh. 2 consists of a stipulation entered into between the General Counsel, Charging Party, and ILW Local 13 in the proceeding before Trial Examiner Alexandre The introduction to the stipulation reads as follows: "For the purposes of only this National Labor Relations Board proceeding in Case No. 21-CB-3457 and 21-CB-3494, it is stipulated This exhibit consists of 34 pages with line references to 80 attachments The General Counsel has faded to specify with any degree of clarity what sections of this exhibit he relies on to prove any particular point or admission. 4 G.C. Exhs 9(a), (b), and (c) consist of the following documents: 9(a) is a copy of a letter from the law firm of Ernst and Daniels to the executive secretary of the National Labor Relation Board dated March 28, 1971. 9(b) is a copy of a telegram sent by this law firm to the executive secretary concerning a brief filed in the case decided by Trial Examiner Alexandre 9(c) is a copy of the brief on behalf of Pacific Maritime Association in that case. Ernst and Daniels, it should be noted represented Respondent Association in the proceeding before Trial Examiner Alexandre and General Counsel offered 9(a), (b), and (c) as admissions by Respondent Association. G.C. Exh. 10 is an answering brief filed by counsel for Respondent Association in the proceeding before Trial Examiner Alexandre. Counsel for Respondent Union objected to the foregoing exhibits on the ground that even though they would not be considered admissions as against Respondent Union they were highly prejudicial. Although as stated above, I have reversed my original ruling and now admit these documents in evidence, I accord these documents little evidentiary value inasmuch as they refer to matters antedating the 10(b) period in the proceeding before me. Moreover, as these documents are voluminous , consisting of 250 pages, I believe that it was incumbent upon the General Counsel to point out with some degree of specificity what sections of these exhibits he relied upon to prove any particular point or admissions This he has failed to do. The General Counsel, accordingly, has merely cluttered up the record with the hope that the Trial Examiner could extract some modicum of evidence to support his case I have failed to do so. 5 " . PROVIDED, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made.... . 6 Local 1424, International Association of Machinists v N LRB., 362 U.S. 411. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Machinists case it was, the established rule in National Labor Relations Board decisions that Section 10(b) was only a statute of limitations, and not a rule of evidence. In the Machinists case the Supreme Court rejected this construction and stated: We think that permitting resort to the principle that Section 10(b) is, not a rule of evidence, in order to convert what is otherwise legal into something illegal, would vitiate the policies underlying that Section. A fine analysis of Section 10(b) with regard to its evidentiary use 7 finds the rule to be as follows: ... if the NLRB finds substantial evidence of an unfair labor practice within the limitation period, the Board may consider evidence of prior unfair labor practices to determine whether an unfair labor practice occurred within the limitations period. [citations] .. . where no evidence of an unfair labor practice is found within the limitations period, the NLRB may not give independent and controlling weight to evidence of prior unfair labor practices to find a violation within the six- month period. [Citations omitted] It is well-established, however, that such prior evidence of unfair labor practices is admissible as background evidence to show the nature of the relationship between the parties [citations ]. The effect of the- holding in the second situation described above is a rejection of the "continuing tort" or continuing violation doctrine in unfair labor practice cases where no evidence of such a violation is found within the limitations period ... . In MacMillian Ring-Free Oil Co. v. N.L.R.B.,8 the court specifically addressed itself to the situation where there was insubstantial evidence - as contrasted to substantial or to no evidence-of an unfair labor' practice within the limitations period. The Hastings Law Review Article in discussing this aspect came to the conclusion that the Ninth Circuit Court by its decision in MacMillan ruled that primary reliance upon evidence of events prior to the 6- month limitation period would not establish an unfair labor practice within that period if there was found only insubstantial evidence of the unfair labor practice within the 6-month period. In my opinion, the law review article has concluded correctly that the current state of the law flowing from the MacMillan decision requires rejection of the continuing violation doctrine when there is less than substantial evidence that a violation occurred during the 6-month period. C. Preliminary Factual Determinations The General Counsel failed to provide credible witnesses with adequate knowledge of the basic interpretations of the contractual provisions of the labor agreement governing the 7 The Hastings Law Journal, Volume 20, 1968-69, pp. 1091-98, Evidentiary Use of Prior Unfair Labor Practices. 8 394 F.2d 26 (C.A. 9), reversing 160 NLRB 877. 9 Wayne Blackwell was the only one questioned with regard to his membership. However, as the evidence shows that membership dues were deducted from his paycheck, I believe I am warranted in assuming that this was typical and that the other Port Hueneme Class B men were also members. 10 The evidence shows Long Beach and Los Angeles are mterchangea- relationship between Respondent Association and Respon- dent Union. With regard to the dispatching procedure the General Counsel places prime reliance on the fact that from approximately January 1966, to some time in September 1969, visiting Class B men were dispatched immediately after local Class B's and before T.W.'s and that after September 1969, and continuing at the time of the instant hearing that the limited registered longshoremen from Port Hueneme were dispatched from Long Beach-Los Angeles after T.W.'s: Additionally, it appears that the General Counsel relies on the fact that T.W.'s were members of Respondent Union, Local No. 13, while visiting Class B men obviously were not. However, the evidence does show that visiting Class B men involved herein were members of ILWU Local No. 46.9 There is agreement by all parties and I find that Respondent Association and Respondent Union are jointly responsible for the operation of the hiring hall for Los Angeles-Long Beach while Local 46 and Respon- dent Association are jointly responsible for the hiring hall at Port Hueneme. Likewise, there is no dispute that the home port for Class B longshoremen who are members of Local 13 is Los Angeles-Long Beach 10 while the home port for members of Local 46 is Port Hueneme. The record shows that the Class B men from Port Hueneme who sought work at the hiring hall for the Long Beach-Los Angeles area were always regarded as visitors and were called up as such by the dispatchers. Visitors" under the applicable contract provisions are required to secure written permission from the joint port committee of their home port and written acceptance from the port they are visiting in order to be eligible for dispatch from the port they are visiting-12 In the case of the Hueneme limited registrants there never was compliance with the contractual provision calling for permission and acceptance. According to the undenied testimony of the General Counsel's witnesses the men were told by Union and employer representatives at Port Hueneme that it was not necessary for Port Hueneme longshoremen to obtain written permission to obtain employment through the Local 13 hiring hall at Long Beach and Los Angeles. Indeed, the testimony clearly shows that from 1966 to September 1969 visiting Class B longshoremen from Port Hueneme were not requested at any time by any officials of Local 13 to show that they had received clearance. The question whether the change in the dispatch procedure of September 1969 affecting visiting limited registered longshoremen' from Port Hueneme and similar visitors from other ports constituted discrimination in violation of the Act is not before me for decision by virtue of the proviso to Section 10(b) of the Act.13 What is in issue in these proceedings is whether the continuance of this ble for all purposes. 11 The fact that the Class B men involved in this proceeding are visitors is a major distinction between this case and that before Trial Examiner Alexandre. 12 There are sound economic reasons for this requirement as it prevents concentration of workers in some ports with attendant shortages in others. 13 I reiterate that Trial Examiner Alexandre's Decision even if it decided this question is not binding upon me. PACIFIC MARITIME ASSOCIATION 297 practice after April 16, 1970, constituted contractual and repeated violations of the Act. The General Counsel in support of the allegations of the Complaint has merely shown that these changes in dispatch procedure were continued after April 16, 1970. In effect the General Counsel is arguing that I adopt a per se approach in that he would have me conclude that the continued practice after April 16, 1970, of dispatching visiting Class B men after T.W.'s constituted a discriminatory practice in violation of the Act.14 I disagree. Both Respondent Association and Respondent Union argue that visiting longshoremen possess no priority in dispatch unless they have conformed to the procedures outlined in the labor agreement which required clearance from the home port and acceptance by the port to which the visitors travel. On the other hand, the General Counsel argues that the custom was established for Port Hueneme Class B visitors to be dispatched at Long Beach-Los Angeles immediately after Class B Long Beach-Los Angeles longshoremen and that the change in September 1969 and continuance thereafter is unlawful. Again I am constrained to disagree. Contractual provisions of the labor agreement between the Respondent Association and the International of the Respondent Union have been continually subjected to extensive interpretations by the parties. The procedures by which final decisions concerning the meaning and application of specific contract terms have been lengthy, time consuming, and frequently include arbitration. The bargaining relationship of the parties despite these exhaustive procedures has been maintained because both sides have accepted the basic premise that their agreement controls the relationship. It is apparent that the unilateral introduction by Respondent Union of TWs, as longshore personnel had met with the immediate opposition of Respondent Association and that procedures were instituted by the Association to curb this practice. It would appear that Respondent Union has to a large extent agreed because the number of TWs has been greatly reduced. The parties, under the terms of this agreement, have also participated in arbitration proceed- ings concerning factors related to Respondent Union's unilateral admission and dispatch of TWs to longshore work.15 Having set out above the high regard in which the parties hold their labor agreement, it seems to me that it would be more appropriate to give effect to the applicable provisions of the, labor agreement between the parties where no violence is done to the equities involved. It is also axiomatic that condonation by silence of a departure from a provision 14 No other conclusion can be drawn from the General Counsel's brief in which he summarizes his contentions in the following language: "The decision in the prior cases established a violation as to Respondent Union. That decision also established that Respondent PMA was jointly liable and would have been held jointly responsible had it been named as a respondent. The evidence in these cases establishes that Respondent Union's conduct found unlawful in prior cases was too narrow a finding and that, in fact, Respondents had been granting unlawful dispatch preference to TW's to the detriment of Class B longshoremen from other ports as well as nonregistered longshoremen. Such conduct violated Secs. 8(a)(1) and (3) and 8(bXl)(A) and (2) of the Act." 15 Probably, the problem presented to the Trial Examiner could be solved by diligent resort to the terms and conditions of the labor agreement if the parties were left to their own devices. That this is not mere of a written agreement for a period of time does not constitute a complete waiver of that provision so as to confer permanent rights to the beneficiaries. Applying this logic to the facts herein it would appear that both Respondent Association and Respondent Union from 1966 to about September 1969 condoned the failure of visiting Class B longshoremen to secure written permission from the appropriate authorities of their home port and acquiescence from Long Beach-Los Angeles port authori- ties to secure dispatches at Long Beach-Los Angeles. Thereafter rather'abruptly, in September 1969, the special privileges extended to visiting Class B men, i.e., dispatching them after the home port Class B were dispatched, was withdrawn and they were treated as casuals or "extras" which is the status they would normally possess in the absence of the required clearances. Counsel for Respon- dents have asserted that longshoremen under the terms of the labor agreement have no rights outside their home port unless they abide by the terms of the labor agreement. I find this argument meritorious and quite convincing.16 Accordingly, I find that the General Counsel has failed to sustain the required burden of proof that Respondents have engaged in conduct violative of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, I make the following: CONCLUSIONS OF LAW 1. Pacific Maritime Association is and has been at all times material herein an employer within the meaning of Section 2(2) of the Act and engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Longshoremen's and Warehousemen's Union, Local No. 13, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Association and Respondent Union through the dispatch of terminal warehousemen or TW's ahead of visiting Class B longshoremen did not violate Sections 8(a)(1) and (3) and 8(b)(1)(a) and (2) of the Act. ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, I recommend that the National Labor Relations Board enter into an order dismissing the consolidated complaint. speculation is shown by the fact that the Charging Parties announced during the course of the hearing that they wished to withdraw the charges but the Regional Director would not approve such disposition. 16 This argument is completely supported by Pacific Coast Longshore Contract Document, G. C. Exh. 3, sec. 8.41 and Supplement One, Subsec. 3.6 which reads: "No visiting privileges need be accorded limited registered men, but if there is a shortage of registered longshoremen in any port, temporary visiting privileges may be accorded to limited registered men from other ports where the Joint Port Labor Relations Committee of the port of registration agrees to permit such visiting by its limited registered longshoremen." It is clear, therefore, that the visiting privileges accorded the Port Hueneme Class B men could be withdrawn or granted at will.