Brady-Hamilton Stevedore Co.

BRADY-HAMILTON STEVEDORE COMPANY Brady-Hamilton Stevedore Company and Internation- al Union of Operating Engineers , Local 701, AFL-CIO. Cases 36-CA-1871 and 36-CA-1871-2 July 12, 1972 DECISION AND ORDER On April 26, 1971, Trial Examiner George H. O'Brien issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief, the General Counsel filed limited exceptions and a memorandum in support, and the Charging Party filed a brief. Subsequently, the Respondent filed a supplemental brief and another brief in response to the General Counsel's excep- tions. Pacific Maritime Association (PMA), the bargain- ing representative for the Respondent Employer, requested oral argument. Pursuant to the Board's decision to grant PMA's motion, oral arguments in this case were heard before the Board on October 4, 1971. 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 only to the extent consistent herewith. In its log-loading operations at the port of Astoria, Respondent, a stevedoring company, leased four whirly-type floating barge cranes from Willamette Western Corporation,2 complete with an operator and oiler on each, under a charter arrangement stating that those employees "shall be deemed for all purposes" employees of Respondent. For approxi- mately 4 years prior to April 3, 1969, operating engineers, members of Local 701, had operated the cranes. These employees took orders from Dale Larson, Respondent's gear-locker man, who was responsible for the cranes and who approved the time cards of the engineers and oilers. Over Larson is Stanley Radovich, a superintendent of Respondent, who happened to be in Astoria on April 3, 1969. Sometime prior to 8 a.m. on April 3, Radovich heard Larson on the telephone say "Local 50 had a meeting this morning and they are going to refuse to hook logs," on certain ships. A few minutes later, t Member John A. Penello, who succeeded to the Board after the oral argument presented by the parties, has reviewed the entire record including the arguments advanced during oral argument and is participating in the disposition of this case 2 Willamette was a member of AGC, which maintained a collective- bargaining agreement with the Operating Engineers Respondent, Brady, is a member of PMA, which maintains a bargaining contract with Longshore- men 3 There was some claim of health and safety which was the subterfuge used in view of the "no-strike" clause in the PMA-ILWU contract. PMA, at that time in the morning, was telling Respondent that longshoremen had to 147 Radovich was told by the longshore foreman that "We are going to have trouble this morning, the longshoremen are going to refuse to hook onto the logs with the 701 or Willamette operators on the cranes." As was the custom, at 8 a.m., the engineers presented the slings from the cranes to the longshore- men who were in the water, but the longshoremen refused to take the slings. Thereafter, Kennedy, one of Respondent's partners, was informed by both Larson and Radovich that ILWU Local 50 members were insisting that the operators and oilers be members of ILWU, and "that until we terminated the operators and oilers who were members of 701 from the cranes the Local 50, ILWU men would not sling logs for loading."3 In another conversation a few minutes later, Kennedy instructed Larson to tell the 701 operators and oilers to come off the machines and instructed Radovich "to get members of the ILWU to hoist the cranes." Radovich protested, indicating that ILWU men were not prepared to operate the cranes, but Kennedy insisted . Eventually, log loading continued that day through the use of the ships' gear rather than use of floating barge cranes. The floating barge cranes were towed away from the ships and the operators and oilers have not since been reemployed by Respondent. Longshoremen have operated the cranes that have been used since April 3. As a result of the dispute, Local 701 filed 8(b)(4)(D) charges against Local 50. On April 5, Local 701 requested Respondent to reinstate the engineers and, on April 8, filed the instant charge alleging a violation of Section 8(a)(3) by Respondent. PMA filed 8(b)(4)(D) charges against Local 701 after that Union picketed to regain the work for its members, but the Regional Director dismissed those charges after the Board issued its Decision and Determination of Dispute, infra. The General Counsel held the unfair labor practice charges in abeyance and proceeded with the 10(k) hearing. Thereafter, the Board, in its Decision and Determination of Dispute,4 concluded that Respon- dent and Willamette were joint employers of the engineers, determined that Local 50 was not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Respondent to assign the work to longshoremen, and awarded the work to employees work with 701 men and that PMA was attempting to resolve the health and safety issue a International Longshoremen 's & Warehousemen 's Union, Local No 50 (Brady-Hamilton Stevedore Company and Willamette- Western Corporation), 181 NLRB 315 On November 12, 1970, the Board denied PMA 's motion for reconsideration On December 29, 1970, the Court of Appeals for the Ninth Circuit entered its judgment dismissing PMA's petition for direct review of the 10(k) award On March 14, 1972, the United States Court of Appeals reversed the District Court's denial of a request to dissolve an injunction against the Operating Engineers. 198 NLRB No. 18 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented by the Operating Engineers. When the Longshoremen refused to comply with the award, the General Counsel issued a complaint alleging viola- tions of Section 8(b)(4)(i) and (ii)(D) of the Act, relying on the 10(k) record to establish a violation. The Board subsequently issued its Decision finding the 8(b)(4)(D) violation as alleged. See 193 NLRB 266. The Trial Examiner found that the engineers and oilers were employees of Respondent and that Respondent knew they were members of Local 701 and were not members of, or represented by, Local 50 and had not been dispatched from the PMA- ILWU hiring hall. In concluding that Respondent discharged the operators and oilers because they were members of Local 701 and because they were not members of Local 50, and for no other reason, in violation of Section 8(a)(3), the Trial Examiner stated that Respondent's reliance on the terms of the PMA-ILWU contract was a pure afterthought. Moreover, in rejecting Respondent's argument that the discharge of Local 701 operators and oilers was required or permitted by the express terms of the agreement between Respondent and ILWU, the Trial Examiner examined the contract, gave it a lawful construction, and concluded it did not authorize Respondent to modify its method of doing business by ceasing to use the services of employees supplied by Willamette. Considering the context in which this case arose, we do not agree with the Trial Examiner's rationale or conclusions. In finding an 8(a)(3) violation, the Trial Examiner concluded Respondent discharged the eight employees for no other reason than that they were members of Local 701 and were not members of Local 50. In making this finding, the Trial Examiner apparently overlooked the fact that this would be the normal situation, with the usual considerations attendant, where two unions are competing for a particular work assignment. The background of this case is the conflict between two union groups for the disputed work of operating the whirly-type floating barge cranes. Accordingly, we must, in applying the Act, determine whether Section 8(a)(3) is applicable in situations where the actions of all parties are part and parcel of an acute, bona fide jurisdictional work dispute. It is clear that Sections 8(b)(4)(D) and 10(k) were enacted as part of the Taft-Hartley amendments in 1947 against a background of industrial strife caused by jurisdictional disputes between unions and be- tween unions and unorganized groups of employees. When Congress enacted those sections, it was no doubt aware of the complex issues and considera- 5 See N L R B v Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia tions involved in such disputes and of the many factors, often closely balanced, supporting separate and distinct claims to the same work by various groups. The result was that Congress provided in Section 10(k) the mechanism for the Board to determine the underlying dispute and make an award of the work and created in Section 8(b)(4)(D) an unfair labor practice by a union who uses unlawful means to force an employer to assign particular work to a particular group of employees. Thus, the 10(k)-8(b)(4)(D) sections of the Act dictate the procedure the Board is to follow in work assignment dispute situations.5 The design of the statute was recently spelled out by the Supreme Court in its discussion of 10(k) in N. L. R. B. v. Plasterers' Local Union No. 79, Operative Plasterers' & Cement Masons' International Assn., AFL-CIO, 404 U.S. 116, 126-127 (1971), where the Court expressly held that employers are to be considered parties to a work assignment dispute, whether the employers are neutral or whether they have substantial economic interests in the outcome. The Court said: ... the § 10(k) decision standing alone, binds no one. No cease-and-desist order against either union or employer results from such a proceed- ing; the impact of the § 10(k) decision is felt in the §8(b)(4)(D) hearing because for all practical purposes the Board's award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10(k) decision against it, a §8(b)(4)(D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10(k) decision and the employer does not comply, the employer's §8(b)(4)(D) case evaporates and the charges he filed against the picketing union will be dismissed. [fn. 19 omitted] Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the § 10(k) decision, but both will lose their §8(b)(4)(D) protection against the picketing which may, as it did here, shut down the job. The Employer will be under intense pressure, practically, to conform to the Board's decision. This is the design of the Act; Congress provided no other way to implement the Board's §10(k) decision. [Emphasis supplied.] In keeping with the Supreme Court's edict, we would not implement our 10(k) determinations via the 8(a)(3) route, which was designed to deal with an entirely different type of problems Our decision herein does not indicate that the Broadcasting System], 364 U S 573 6 Member Fanning finds additional support for this position in his BRADY-HAMILTON STEVEDORE COMPANY 149 Charging Party is without an effective remedy. As the successful union in the 10(k) proceeding, Local 701 is free to engage in economic pressure against the Respondent to enforce the award without running afoul of Section 8(b)(4)(D), and to this extent, at least, the Respondent is bound by the 10(k) determi- nation. Although this economic pressure may not be as effective as an unfair labor practice finding and an order to reinstate, we view the policies and purposes of the 10(k) procedures as controlling. Accordingly, we shall dismiss the complaint herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed. MEMBERS KENNEDY AND PENELLO, dissenting: We do not disagree with the facts as stated by the Trial Examiner and found in the majority decision. Our disagreement is with the conclusion of law reached by our colleagues based on those facts. For the following reasons we would reach a result contrary to our colleagues, but compatible with the finding of a violation by the Trial Examiner. The issue is whether the Respondent violated Section 8(a)(3) when it discharged eight operating engineers and replaced them with longshoremen for the sole reason that they were members of the Operating Engineers Union and were not members of the Longshoremen's Union. The Trial Examiner found, and our colleagues do not dispute this finding, that the only reason for the operating engineers' discharge and replacement at that time was because they were members of the wrong union.? However, our colleagues refuse to find a violation of Section 8(a)(3) because it occurred during a jurisdictional dispute, with its normal background of union membership, allowing an exception to the applica- tion of Section 8(a)(3), and that the policies of the Act require that we ignore Section 8(a)(3) and instead implement our 10(k) procedures. We are well aware that the background of this case consists of a conflict between two union groups for an award of disputed work. Concerning that back- ground, and its relation to Sections 8(b)(4)(D) and 10(k), the Trial Examiner specifically declared the legal conclusion, which we adopt, that Section 8(b)(4)(D) was designed for the protection of neutral employers, but that it was not designed to shield dissenting opinion in Local 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Arthur Venneri Company), 145 NLRB 1580, 1601 7 Indeed, the record, much of which was recited in the Trial Examiner's Decision, conclusively shows that the Respondent's only motive in discharging the operating engineers was so it could replace them with either employers or unions from the consequences of violations of other sections of the Act.8 By their decision today, our colleagues are doing just that. To us, however, this is just the usual, classic 8(a)(3) situation-the Employer discriminatorily discharged eight employees simply because they were not members of a favored union, but were members of a disfavored union-and the Employer's action violat- ed both the encouragement portion and the discour- agement portion of Section 8(a)(3). In such a situation, the Respondent Employer should not be shielded from its violations of the Act simply because one, either, or both of the contesting unions violated another section of the Act. Certainly, there is nothing in our statute to suggest that because a union violates one section of the Act, we cannot find that an employer violates another section. We agree that the policies and purposes of the 10(k) procedures are controlling and that the 10(k)-8(b)(4)(D) sections of the Act dictate the procedure the Board is to follow in work assignment dispute situations. We do not agree, however, that we must look to the 10(k) procedures where other sections of the Act are violated, nor do we agree that the policies and purposes of the Act are enhanced by dismissing the allegations in this particular situation. Regarding the policies of the Act as they affect Sections 10(k), 8(b)(4)(D), and 8(a)(3), we do not believe the 10(k) procedures take preference here. First, the Respondent discriminatorily discharged the operating engineers prior to any 10(k) determination by us, and the violation of Section 8(a)(3) took place at that time. Accordingly, we would not be imple- menting our 10(k) determinations via the 8(a)(3) route, but would be finding a violation of Section 8(a)(3) at the time it occurred. Secondly, indications that the policies and purpos- es of the Act contemplated 8(a)(3) violations in work dispute situations are first found in the supplementa- ry analysis that Senator Taft had inserted in the Congressional Record, 93 Cong. Rec. 6860(1947),9 when, in considering Section 8(b)(4)(D), he stated: I have no hesitation in saying that this subsection applies not only to strikes over the assignment of particular work to one union rather than another, but also to the assignment of work to one union rather than another group of employees. It is submitted, however, that this is not a proper criticism of this section since under the Labor Relations Act at the present time an employer would be violating subsection 8(3) if he dis- members of the favored Longshoremen Even at this stage , our colleagues do not refute the obviously discriminatory intent of Respondent N LR B v Local 825, International Union of Operating Engineers, AFL-CIO, 400 U.S. 297 (1971) 9 See II Leg Hist 1624(1947) 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged or discriminated against some employees merely to provide work to members of a union. Under existing law, employers have no right to accede to such union demands unless there is a closed or union-shop agreement in effect. If an employer discriminates in the assignment of work so as to encourage a non-union group by assigning, them work which properly should be performed by union employees , it would be an unfair labor practice under the provisions of existing law and the conference bill. In other words all that this amendment to the Senate bill does is to make it illegal for unions to coerce employers into doing something which an employer is already prevented from doing by the operation of section 8(3) of the present Wagner Act. [Emphasis supplied.] Later, the Supreme Court commented on the procedural and substantive aspects of the Board's interpretation of 8(b)(4)(D) and 10(k) in the C.B.S. case.10 The Board had argued , inter alia, that a final and binding award under 10(k) would be inconsis- tent with Section 8 (a)(3) and 8(b)(2) of the Act on the ground that the determination of jurisdictional disputes on their merits by the Board might somehow enable unions to compel employers to discriminate in regard to employment in order to encourage union membership . In rejecting the Board's approach to 10(k), the Court stated , inter alia: The argument here, which is based upon the fact that § 10(k), like § 8(b)(4)(D), extends to jurisdictional disputes between unions and unor- ganized groups as well as to disputes between two or more unions, appears to be that groups represented by unions would almost always prevail over nonunion groups in such a determi- nation because their claim to the work would probably have more basis in custom and tradition than that of unorganized groups. No such danger is present here, however, for both groups of employees are represented by unions. Moreover, we feel entirely confident that the Board, with its many years of experience in guarding against and redressing violations of §§ 8(1)(3) and 8(b)(2), will devise means of discharging its duties under § 10(k) in a manner entirely harmonious with those sections. [Emphasis supplied.] Thus, congressional history surrounding the enact- ment of Section 10(k) expressly contemplates that traditional 8(3) violations will be dealt with by traditional remedies, and the Supreme Court im- pliedly suggested that 8(a)(3) and 8(b)(2) are not mutually exclusive of the 10(k)-8(b)(4 )(D) proce- dures. Thirdly, in considering that the policies of the Act are to prevent labor strife and discord, we must note that the Respondent Employer here did not seek redress under our Act, but acted precipitately by capitulating to the unlawful acts of the favored union. The Respondent's position could adequately have been protected had it invoked the procedures of the Act, unless, as it must have known, its position was unlawful. Lastly, it appears that the policies of the Act are being completely frustrated by the decision of our colleagues today. We have previously found, pur- suant to the 10(k) procedures invoked by the Charging Party, that the alleged discriminatees, represented by the Operating Engineers, are entitled to the work. We have further found that the longshoremen, represented by the Longshoremen, the defiant respondent in the 8(b)(4)(D) case, are not entitled to the disputed work. But in this case we say that it is useless for the discriminatees and their representative to invoke the peaceful procedures of the Act to seek redress for what we have found to be a wrong. We do not believe that the policies of the Act are sustained by such a result. This is especially so where the wronged parties only course of action is to picket, labeled "economic pressure" by the majority, a type of action that does not particularly discourage labor unrest. An 8(a)(3) reinstatement order would accomplish the peaceful result contem- plated without need for coercive tactics by any union. Furthermore, we do not believe that the dictum of the Plasterers' case, cited by the majority, supports our colleagues' position, since it does not deal with the same situation. In the instant case, our position is not that we are attempting to implement the Board's 10(k) decision, although that would be the desired result; our position is that the Respondent violated 8(a)(3) at the time it discharged the eight operating engineers for discriminatory reasons. Admittedly, an 8(a)(3), or even an 8(b)(2), charge would not be equally applicable in all jurisdictional dispute situations. Apparently, that was one of the General Counsel's considerations when he proceeded with the 10(k) case prior to proceeding on the 8(a)(3) complaint. However, because Section 8(a)(3) may not be applicable in some situations does not mean that it is not applicable here. Cases must be judged on their respective facts and merits and not on speculative situations that could possibly arise. Under the circumstances of this case, we see no reason to carve out an exception to the operation of Section 8(a)(3). We find merit in the General Counsel's position, would adopt the Trial Examiner's 10 N L R. B v Radio and Television Broadcast Engineers Union, Local 1212, IBEW [C B S1, 364 U S 573, 584 BRADY-HAMILTON STEVEDORE COMPANY 151 Decision finding a violation of Section 8(a)(3), and would issue a reinstatement and backpay order. Accordingly, we respectfully dissent. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Trial Examiner: On January 19 through 26, 1971, a hearing was held in the above-entitled matter in Portland, Oregon. The consolidated amended complaint, issued December 31, 1970, is based on charges filed April 8, 1969, and May 23, 1969, by International Union of Operating Engineers, Local 701, AFL-CIO, herein called Local 701, and alleges violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act by Brady-Hamilton Stevedore Company, herein called Res- pondent. Upon the entire record in this proceeding, including my observation of the witnesses and after due consideration of the posthearing briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is an employer engaged in the longshore work involved in the loading of cargo to ships and barges and the unloading of cargo from ships and barges at ports on the Columbia and Willamette Rivers. Respondent's annual revenue for such services exceeds $100,000. II. THE LABOR ORGANIZATIONS INVOLVED Local 701 is a labor organization within the meaning of Section 2(5) of the National Labor Relations Act. International Longshoremen's and Warehousemen's Union, Local No. 50, herein called Local 50, is a tabor organization within the meaning of Section 2(5) of the National Labor Relations Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues On April 3, 1969, Respondent dispensed with the services of eight members of Local 701 and employed in their place and stead members of Local 50. On April 5, 1969, Local 701 demanded of Respondent that its members be put back to work . The complaint alleges that Local 701 members were employees of Respondent and were dis- charged by Respondent to encourage membership in Local 50 and to discourage membership in Local 701 in violation of Section 8(a)(3) of the Act. The complaint further alleges that Respondent and Willamette Western Corporation (not a party to this proceeding) were coemployers of the Local 701 members, and that Respondent refused to bargain in violation of Section 8(a)(5) of the Act, by failing to notify and confer with Local 701 prior to the discharges. Respondent answers that Local 701 members were not its employees, that it did not discharge them, and that it was under no duty to bargain with their representative. Respondent's answer also pleaded as an affirmative defense that its contract with International Longshore- men's and Warehousemen's Union required that long- shoremen be used to hoist cargo, and that Respondent was required to observe that contract upon request. A request was made by Local 50. Respondent proceeded to observe the contract. Respondent notified Willamette Western Corporation, the employer of the eight Local 701 men who had been working on cranes , that it had no further use for these people, and Willamette switched them over to other work. At the opening of the hearing Respondent's counsel moved to dismiss the complaint on the ground that the issues herein are collateral to and dependent upon the ultimate outcome of proceedings under Sections 8(a)(4)(D) and 10(k) of the Act which are still pendent hie. The related proceedings growing out of the incidents of April 3, 1969, were initiated by a charge filed April 3, 1969 (Case 36-CD-54), by Local 701 alleging that Local 50 had violated Section 8(b)(4)(D) of the Act by forcing Brady to replace Local 701 employees with Local 50 employees, and by a charge filed April 21, 1969, by Pacific Maritime Association, herein called PMA, alleging that Local 701 violated Section 8(b)(4)(D) of the Act by picketing on and after April 22, 1969, to force Brady to replace Local 50 employees with Local 701 employees. The Board in a proceeding entitled International Long- shoremen's and Warehousemen's Union Local No. 50, etc., 181 NLRB 315, handed down a Decision and Determina- tion of Dispute, wherein it made the following deternu- nation: 1. Employees who are currently represented by Hoisting and Portable Engineers Local No. 701, International Union of Operating Engineers , AFL-CIO, are entitled to perform the work of operating barge- mounted floating whirly-type cranes lifting bundles of logs from the water and placing them into the holds of ships and barges at Employers' Astoria, Oregon, operations. 2. International Longshoremen's & Warehousemen's Local No. 50 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employers to assign the above work to longshoremen represented by it. The Board having on July 24, 1970, denied a petition for rehearing of the above determination, PMA as the collective-bargaining agent of Respondent filed in the United States Court of Appeals for the Ninth Circuit, on July 29, 1970, a petition for review of the Board's Decision and Determination of Dispute. On December 29, 1970, the court entered its judgment dismissing the petition for review on the authority of N. L. R. B. v. I.L. W. U., 378 F.2d 33, 35-36 (C.A. 9). PMA's motion for reconsideration was denied November 12, 1970. The Board, through its General Counsel, in support of its motion to dismiss PMA's petition to review, advised the court of appeals by memorandum filed September 28, 1970: As set forth above, the Board, in a Determination of Dispute under Section 10(k) of the Act, awarded the work in dispute to the Engineers Union. The non- winning union , the longshoremen, together with the 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employers involved, Brady Hamilton Stevedore Co. and W.J. Jones and Son, Inc., along with Pacific Maritime Association, object to the Board's determina- tion and have filed petitions to review that award in this Court. However, as we now show, that determina- tion is not a final order subject to appellate review, and will become reviewable only if and when it forms the basis of a subsequent unfair labor practice decision under Section 8(b)(4)(D) of the Act. i i # ♦ # Accordingly, where, as here, an 8(b)(4)(D) unfair labor practice charge is filed with the Board, and the parties to the underlying work dispute do not adjust or agree to adjust the dispute voluntarily, proceedings on the unfair labor practice charges are held in abeyance while the Board hears and determines the work dispute pursuant to Section 10(k). Only when the labor organization disallowed work under the jurisdictional award fails to comply with the award does the matter proceed to an unfair labor practice proceeding under Section 8(b)(4)(D). It is the order arising from the 8(b)(4)(D) proceeding which is final and subject to Judicial review. Judicial review of that order will entail review of the underlying 10(k) proceeding on which the unfair labor practice finding would be based. The instant case is still in the compliance stage of the 10(k) proceedings. Should the Longshoremen's Union fail to comply with the Board's determination of the work dispute, the General Counsel of the Board will issue a complaint against it alleging a violation of Section 8(b)(4)(D), with right of review in the Court of Appeals by the Longshoremen's Union before any Board's order could be enforced. Should the Long- shoremen comply at some stage of the proceedings, or fail to petition for review, then there will be no judicial review of the Section 10(k) proceeding. That, however, is what Congress intended by the statute. As the Supreme Court said in C.B.S., 364 U.S. at 576-577, Congress believed "that it is more important to industrial peace that jurisdictional disputes be settled permanently than it is that unfair labor practice sanctions for jurisdictional strikes be imposed on unions." As the Court further stated, the purpose of the statutory provisions was "to protect the neutral employer caught in the crossfire between the disputing unions and unable to satisfy either." 364 U.S. at 575 Assuredly, the employer may not be neutral and may much disapprove of the award. In such instance the employer need not comply. An employer who refuses to assign work in accordance with a Board award is not subject to an order directing him to do so . . . . The employer is still free to use the economic power at his disposal to contest the work assignment to the winning union Local 50 did not comply with the Board's Decision and Determination of Dispute and the General Counsel on October 8, 1970, issued a complaint in Case 36-CD-54 against it alleging a violation of Section 8(b)(4)(D) of the Act. A hearing was held in Portland on January 14 and 15 before Trial Examiner James T. Barker. Also, at the opening of this hearing the General Counsel moved: because this case has its roots firmly embedded in Cases Nos. 36-CD-54 and 36-CD-54-2 and 36-CD-55, reported at 181 NLRB No. 51, and because Respondent was a party in those cases, and because almost all of the facts upon which the present complaint is predicated were fully litigated in 181 NLRB No. 51, General Counsel moves that the entire record, including the transcript and the exhibits in Case 181 NLRB No. 51 be received in evidence for all relevant purposes in the present case, and that all the relevant evidence in Case No. 181 NLRB No. 51 be given full probative value in the present case. In support of this motion the General Counsel argued: ... our position here is that the entire complaint is predicated on the exact events that have already been fully litigated in the 10(k) proceeding.... I should have said fully litigated as to most issues.... I'mjust asking your Honor to take official notice of the evidence in that case as part of my case in chief, and I don't preclude Respondent from meeting with addi- tional evidence any of the allegations of the present complaint ... . Counsel for Local 701 argued in support of the General Counsel's motion: ... on the issue of the determination made by the Board in the work dispute, that is binding on the Trial Examiner. It cannot be re-litigated, nor can the facts which gave rise to that decision be re-litigated . . . the decision arising from that prior proceeding is res judicata. It cannot be re-litigated in this case. It cannot be attacked in this case . . . . The only remedy that is available to the Respondent in this case . . . is his right to bring in newly discovered evidence or evidence that was not available otherwise to him at the time of the 10(k) hearing. The General Counsel then added: I would like to join in the argument of counsel for the Charging Party. I did not specifically bring up Respondent's answer and the fact that he is alleging the contract and certification. That's the major issue I'm concerned about in this case, and I concur with counsel for the Charging Party that it is res judicata, and even though there are some procedural differences between an R case and a C case, certainly the Board has not been inhibited one bit by adopting the records in an R case in a C case, and it's to those issues specifically here who should be awarded the work, and the 10(k) is an analogous to an R case there. Counsel for Respondent, in support of his motion to dismiss and in opposition to the motion and arguments of the General Counsel and counsel for Local 701 argued: The General Counsel is taking the position in the Court of Appeals that the 10(k) order is not binding upon the employer . . . . We have insisted that the 10(k) order under the statute is binding upon the employer and upon the unions, and that it is the duty of the Board to BRADY-HAMILTON STEVEDORE COMPANY proceed through Section 10(k) to gain compliance with its decision by the employer and by the unions, and the Board has failed to do so . . . it is our position that the only way to proceed with respect to the 10(k) order is to proceed to get compliance and then dismiss all charges ... if this position be not accepted and this proceed- ing, in effect, set aside while the Board proceeds under the last sentence of Section 10(k) to get compliance with the lawful and proper 10(k) order, then the Board has no business referring to the 10(k) order in this case. ... if, as the Board says, the 10(k) . . . decision .. . is not binding on the employers, what purpose does it have here that's lawful and proper? Now, the Board, however, not merely alleges that there was a decision, but they have asked that the record in that case be incorporated in this proceeding. The record in that case was not a record made in an adversary 10(c) proceeding. It was a record made in a non-adversary 10(k) proceeding before a Hearing Officer under different rules and regulations than the rules and regulations that apply to a 10(c) proceeding before a Trial Examiner. On the basis of the arguments summarized above, cases cited therein, and my understanding of the law of res judicatai and official notice,2 I ruled: 1. The motion to dismiss the complaint is denied. 2. The motion to strike paragraph 14 [of the com- plaint] is granted. 3. The motion to incorporate the 10(k) record in this record is denied. 4. The motion to take official notice of the Board's 10(k) determination is granted to this extent: I will officially notice the final determination of the Board. I will also notice officially the finding of the Board that "Brady-Hamilton Stevedore Company, herein called Brady, and Willamette Western Corporation, herein called Willamette are the co-employers involved in Case No. 36-CD-54." Prior to making the above rulings I had asked the General Counsel why the complaint in Case 36-CD-54, which had been heard by Trial Examiner James Barker the previous week, had not been consolidated with the instant complaint for hearing? My question remains unanswered. All of the facts hereinafter found are based on testimony and documents received in evidence in this proceeding, and none is based on official notice of any other matter. B. Respondent's Operations in Astoria Harbor Prior to April 3, 1969 The Astoria Port Authority owns a pier with a large building situated thereon. The building is partitioned into sections. The lunchroom and washroom sections are operated by the Port Authority. A small room is leased to Portland Stevedore Company, a large area denominated "gear locker" is leased to Respondent, and another area is leased to Jones Stevedore Company. In the area leased by Respondent is a small office containing a desk and telephone which is used by Respondent's "gear locker 1 The General Counsel was not a party to the 10(c) proceeding and "the plaintiff in the subsequent action who was a stranger to the first action may not assert the prior judgment as a conclusive determination of issues 153 man," Dale Larson, for recordkeeping. No officer or official of Brady is permanently stationed in Astoria, nor necessarily present when Brady is loading ships in Astoria harbor. Management of Respondent is vested in two partners, Louis J. Kennedy and Neal Whisnant, who direct the operation from their office in Portland. Their superintend- ent, Stanley Radovich, visits Astoria about two or three times a month. Respondent is a member of Pacific Maritime Association and its labor relations are governed by "Pacific Coast Longshore Contract Document, July 1, 1966-July 1, 1971, between International Longshoremen's and Warehouse- men's Union and Pacific Maritime Association," and, as stated by their counsel: a myriad of other documents and materials that are part of the continuing collective' bargaining process that is carried on under the National Labor Relations Act ... decisions of the various Joint Port Relations Committees, Joint Area Labor Relations Committees, Joint Coast Committees and the arbitrators in carrying on the day to day collective bargaining ... . Willamette Western Corporation is a contractor in the heavy construction industry. It owns a number of barge mounted waterborne whirley-type diesel electric powered cranes which it uses for dredging, digging gravel and sand, pile driving, tearing up piling, and other work in connec- tion with its operations. Willamette has assigned all of its bargaining rights to Oregon-Columbia Chapter, Associated General Contractors of America, Inc., herein called AGC, and is bound by the contract between AGC and Local 701 to require the operators and oilers on its floating cranes to maintain membership in Local 701 as a condition of employment (after 8 days). Logs are floated down the Willamette and Columbia Rivers to the port of Astoria either in rafts of individual logs or in bundles of various sizes and there loaded on and stowed in vessels by employees of stevedoring companies. Individual logs and small bundles can be handled by ships' gear. The larger bundles, some weighing as much as 35 tons can only be raised from the water by the use of barge mounted cranes. From March 1964 through at least 1966 Astoria Stevedores used Willamette cranes in their loading opera- tions on an occasional and "as available" basis. The unpredictability of the availability of cranes was unsatis- factory to Respondent and on November 1, 1966, it obtained on time charter the barge cranes, Titan and Amazon. On March 21, 1967, it chartered from Willamette, the barge cranes Sampson and Goliath. The charter party granting to Respondent the exclusive control of Titan and Amazon contained the following clause: No. 6-It is further agreed that the Owner will provide its employees for operation and that they will bill the Charterers for such services. The Sampson and Goliath charter party contained the following clause: litigated thereby " 46 Am Jur 2d Sec 522. 2 N LR B v. M L Townsend, 185 F 2d 378, 380-381 (C A. 9) 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. 6-It is further agreed that the owner will provide its employees for the operation of the vessels and that they will bill the charterers for owners out-of- pocket costs for such service. However, during the time crewmen are so provided, they shall be deemed employees of the charterer as respects and liability to third parties or fellow workmen arising out of their negligence . Charterer shall also maintain proper work- men's compensation on the crewmen provided. On April 10, 1968, the charter of the Sampson was renewed for 1 year from April 9, 1968, and the charter of the Goliath for 1 year from April 14, 1968. The charter party covering both vessels provided: 5. It is further agreed that the Owner will provide its employees on a "loaned" basis for the operation of the vessels and that Owner will bill Charterer, not less than once each month, for Owner's labor costs referrable to such employees including overhead and administra- tion. However, during the time such crewmen are so provided on a "loan" basis, they shall be deemed for all purposes the employees of the Charterer, including but not limited to any liability incurred by the Charterer by reason of any act or omission of such employees resulting in loss or damage to third parties, fellow employees and/or to the vessels themselves. Charterer shall also maintain proper workmen's compensation on the crewmen provided. As used herein the term "workmen's compensation" embraces Longshoremen's & Harbor Workers' compensation as well as State of Oregon Workmen's compensation to the extent the same may be applicable. The renewed charter party covering the Titan and Zeus for 2 years from November 1, 1968, contains the identical clause 5, supra. Amazon (presumably) had been returned by Respondent to Willamette. From the time of the first charter through April 2, 1969: Willamette (1) paid all operators and oilers on the chartered barge cranes by checks of Willamette, (2) paid all social security and unemployment insurance taxes, (3) reported all employment for social security and unemploy- ment administration purposes, (4) withheld income taxes, computed withholding amounts, and reported tax with- held, paid over to the Government the tax withheld, (5) accepted, prepared, and issued W-2 and W-4 forms with respect to income tax withholding and reports of income received and the other matters covered by such reports, and (6) paid and reported the amounts required by the AGC-Local 701 contract to be paid to the Health and Welfare Trust Fund, the Construction Industry Advance- ment Fund and the Pension Fund set forth in said contract. Willamette then billed back to Respondent and collected from Respondent the gross wages itemized above and in addition the required Federal and state employment taxes on said gross wages, and the employer contributions required by the terms of the AGC-Local 701 contract. Operators and oilers turned in their time daily to Dale Larson. Larson approved for payment by Respondent only that time which in his judgment represented work performed for Respondent. Willamette did not bill Respondent for any time not approved by Larson. Larson was responsible for the cranes. Current mainte- nance was performed by Larson, or by the operators and oilers under his direction or by the operators and oilers under his direction or by others upon Larson's order. When the cranes were not being used by Respondent, the operators and oilers were occasionally required by Willam- ette to perform other maintenance tasks, such as painting and "Brady Hamilton cared less if they were painted." Such time was not approved by Larson, nor was it paid by Respondent. Willamette had no supervisor in Astoria and the paychecks were mailed to the operators and oilers. Respondent carried workmen's compensation insurance in its own name at its sole expense for the operators and oilers whether their services at the time were chargeable to Respondent or to Willamette. There was one operator and one oiler assigned to each barge crane. While on working time, and not actually loading logs they were completely subject to the direction of Larson. In the operation of loading there were longshoremen on the logs, longshoremen in the ship's hold, and a longshoreman hatchtender on the ship's deck directing the operation and controlling the crane's move- ments by signals to the operator. All these longshoremen were employees of Respondent, hired pursuant to and working under the provisions of the Pacific Coast Long- shore Contract between PMA and ILWU. C. April 3, 1969 On Wednesday, April 2, 1969, there were three ships in Astoria harbor taking on logs for Japanese destinations. At 7 a.m. on Thursday, April 3, Local 50 longshoremen held a meeting in the union hall in Astoria. The meeting adjourned about 7:45 and the Local 50 men returned to the stations where they had worked, without incident until quitting time on the day before. About 7:40 a.m. the same Local 701 oilers, who had worked without incident the previous day, went on their respective barges, oiled the machinery, checked the equipment, and started the engines. Shortly thereafter the Local 701 operators went on the barges and climbed to the control cabs of the cranes. Goliath, Titan, and Zeus were tied end to end on the side of the ship, Japan Laurel. Sampson and two other barge cranes not involved in this proceeding were tied to the side of the ship- Rocky Maru. At 8 a.m. the crane operators swung the crane booms over the log bundles adjacent to their respective barges and dropped the hooks. The Local 50 men on the logs just stood at the end of the bundles and did nothing. Ty Stanton, operator on Titan, the middle barge on the Japan Laurel called down: "What's going on? What's happen- ing?". One of the Local 50 men replied: "We are refusing to hook on because of health and safety." Stanton then returned the boom to a position straight with the barge and climbed down to the deck of the Titan where he was joined by the operators and oilers from Goliath and Zeus. Radovich arrived at the gear locker a few minutes before 8 a.m. and heard Larson on the telephone say: "Local 50 had a meeting this morning and they are going to refuse to hook logs on the Rocky Maru and the Japan Laurel." On the pier, Radovich met Bartolis, the longshore foreman on the Japan Laurel, who said: "We are going to have trouble BRADY-HAMILTON STEVEDORE COMPANY this morning. The longshoremen are going to refuse to hook onto the logs with the 701 or Willamette operators on the cranes." Both Larson and Bartolis were members of Local 50, and Larson had attended the meeting that morning. Radovich went on the deck of the Japan Laurel and overheard the interchange between Ty Stanton and the longshoremen . Radovich immediately returned to Larson's office and took the phone from Larson. Louis Kennedy and his partner, Neal Whisnant, were both on the line in their office in Portland. Kennedy in an affidavit executed April 14, 1969,3 the truth of which he reaffirmed in this proceeding, stated: On or about 0800 on Thursday, April 3, 1969, I received a telephone call from Stanley Radovich, the superintendent in charge this day of the Astoria stevedore operations for Brady-Hamilton, advising me that the ILWU Local 50 members were insisting that the crane operators and oilers on the whirleys loading logs onto the two vessels at the dock (the MS ROCKY MARU and the MS JAPAN LAUREL) must be members of the ILWU from that time forward, and that until we terminated the operators and oilers who were members of 701 from the cranes the Local 50, ILWU men would not sling logs for loading for health and safety reasons. Since their demand was in accordance with the ILWU Pacific Coast Agreement, to which we are a party, I had no choice but to acquiesce. Accordingly, I directed my superintendent to accede to the ILWU demands and to terminate the crane operators and oilers who were then operating the whirleys loading the MS ROCKY MARU and MS JAPAN LAUREL. I informed him that I would be in Astoria by approximately noon. I also instructed Mr. Radovich to have the cranes pulled away from the ships and tied up at the end of the dock until I arrived. Larson testified that he had only two telephone conver- sations with Kennedy on April 3. Larson telephoned Kennedy about 8 a.m. and with Radovich at his side: I told Mr. Kennedy that the longshoremen were not going to sling up under the cranes with 701 operators. Q. (By Mr. Ernst) What else did you say? A. I believe that was all. I transferred the phone over to Mr. Radovich at that point. Q. What did Mr. Radovich say? A. . . . he followed along in saying that we weren't going to work with the cranes with 701 operators. Q. . . . who did you mean by we . . . ? A. Longshoremen. At about 8:20 a.m. Kennedy telephoned Larson and: He told me-instructed me to tell the 701 operators and oilers to come off the machines, shut them off and come off the machines . . . . At that point I gave the phone to Mr. Radovich . . . . I was on my way out ... and then Mr. Radovich came out and said they were going to hire longshoremen and try to get the cranes back in operation . . . . I said I was going to go and tell the 701 men to come off the cranes. I asked 9 The affidavit was prepared by Respondent 's counsel, James P. Rogers, for a hearing before the circuit court of the State of Oregon for Clatsop County The affidavit was subsequently filed in the United States District Court for the District of Oregon in the case entitled. Charles .M Henderson, 155 him if he wanted to proceed with me. He said, "No, you take care of that. I have to go talk to the local to find out if they can give us operators and discuss this with them." Larson went on the deck of the Japan Laurel shortly after 8:20 a.m. and called down to the deck of the Titan where six 701 men were gathered: A. (By Larson) I asked them to secure the cranes and come up on deck . . . some said "We're not coming." Others said, "What's the matter?" Others said, "Okay," and others said, "Well what's the reasoning?" ... I said, "Apparently there's ajurisdic- tional dispute and the longshoremen aren't going to work under the 701 operators . . . . They said, "You mean we're fired?" ... And I said, "I guess so." .. . And Paul Bell said, "You can't fire us. We're not working for you." ... I said, "Come up and go to the telephone and contact Willamette." . . . and they decided that the oiler would stay on the machine and the operators would go to the telephone for further instructions. Ty Stanton, the operator on the Titan set the foregoing incident at 8:30 and testified: Q. (By Mr. Cubbison) What did Mr. Larson say? A. He said we were fired, to get our personal gear and get off . . . . I believe he said the longshoremen would run the cranes. Called as an adverse witness by the General Counsel, Kennedy testified that his instructions to Radovich to terminate "operators and oilers who were members of 701" were given in the telephone conversation of 8 a.m. Kennedy further affirmed the truth of the following portion of his April 14, 1969, affidavit: About 0815 I called Don Ray of Willamette Western and informed him of the call I had dust had from Radovich and my instructions to him set forth above. I told him I was going to have to terminate his Local 701 men on those cranes and put Local 50 men on them. He replied that that was up to me, under our charter arrangement he had nothing to say about it. Kennedy, called as a witness for Respondent testified: Q. (By Mr. Ernst) . . . what was said in the first of these conversations? A. . . . Mr. Radovich said that the longshoremen were refusing to hook up the logs ... "claiming health and safety." I said, "Well, that doesn't-here they've been working under these men all these years. It's something else from the looks of it. Go and find out a little bit more. Then in the course of the conversation, it got that ... members of the ILWU were demanding the work. So I told him that under the ILWU contract that the men were entitled to the work. I told him, "Go out and find some drivers then if they thought that they could do the work," and left it at that. Kennedy next testified that in a conversation with Regional Director, N L R B v 10 U E, Local 701 and I L W U, Local 50, Civil Number 69-258. The order of the district court enjoining both unions was affirmed by the United States Court of Appeals for the Ninth Circuit December 11, 1969, 420 F 2d 802 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD William Burton Ferguson, Oregon area manager for PMA, at 8:10 a.m. Ferguson had told him that under the contract Local 50 was entitled to the work. Kennedy did not recall any comment by Ferguson on the subject of Local 50's claim of health and safety. Kennedy next testified that he telephoned Mr. Don Ray of Willamette at 8:15 a.m. and: A. I told Mr. Ray that the longshoremen were demanding the work in Astoria driving the cranes and I said, "What are we going to do about it?" He said, "All right, you can hire the ILWU men." I said, "All right" and that was it. Q. (By Mr. Ernst) After that conversation, what did you do, if anything? A. Well, that's where I called Mr. Radovich and told him to get some crane operators from the ILWU. • s s s s Q. Did you tell anybody to do something as to the members of one union or to do something as to members of another union? A. I told Mr. Radovich to get members of the ILWU to hoist the cranes. On cross-examination Kennedy testified that he talked to Ray of Willamette before he spoke to Ferguson of PMA, and that it could have been as late as 8:30 when he first spoke to Ferguson. Ferguson testified that he arrived at his office on April 3 sometime between 8 a.m. and 9 a .m. and found a message to call Mr. Kennedy. In the ensuing telephone conversa- tion: [Mr. Kennedy] said, "The longshoremen are refusing to work because they contend it is unsafe to do so, so long as 701 operators are on the cranes. They have been having difficulty with these people and the atmosphere is somewhat charged and they feel that it's simply unsafe." And I said to him that I thought that was quite ridiculous with respect to the health and safety issue and I'd look into it immediately. Q. (By Mr. Ernst) Do you recall now any further discussion in the conversation? A. Yes, there was a-the question was who has the right to drive these cranes and as a matter of fact, Mr. Kennedy said, "Well, the longshoremen insist on driving the cranes," and we said, "Under the terms of the agreement I don't know how we are going to contest it, but we will look into the safety issue." Q. Do you recall anything else that was said in that conversation? A. No, I think that was the gist of it. Radovich testified that as he was walking from the ship to the gear locker immediately after 8 a.m. he encountered three longshoremen who represented Local 50 on the Joint Port Labor Relations Committee and was told by one of them, Roy Niemi: We are standing by because the men feel that it's unsafe to work under the 701 operators in view of the problems and difficulties that exist between the ILWU and the 701. 4 This was the fourth conversation of the morning between Radovich and Louis Kennedy. The time was after 9 30 a.m and after Kennedy had When Radovich in his first conversation with Kennedy reported this fact: [Kennedy] said, "Damn-tit, you tell those guys they've got to work with the 701 operators." I said to Lou, "That's impossible. They simply will not do it. I know they will not do it." At the conclusion of his first telephone conversation with Kennedy, Radovich sought out the three Local 50 members of the Port Committee. Radovich testified: A. [I asked] them in general, "Are you guys still arguing this is a safety beef?" Roy Niemi said, "Yes. A lot of our men really think it's an unsafe situation now because of what's happened in Portland." I said, "Come on, Roy. Get off that." Then Mr. VanArsdall chimed in . He said, "Listen, Stan, there's no use beating around the bush. 701 brought this on them- selves. What we are asking you to go back and tell Brady-Hamilton that we want you to live up to 1.5 in the agreement." I said, "You mean the portion which deals with providing tools for the longshoremen which they can operate . . . why in the hell didn't you say this or something like this or ask for this at 8:00 o'clock this morning?" Radovich then returned fo Larson's office, telephoned Respondent's Portland office about 8:15 a.m., and gave Mr. Kennedy and Kennedy's son, Jim, the message of the Local 50 Port Committee. Radovich testified: Jim Kennedy said, "Well, Stan, there's other provisions of 1.5 that we want the Union to follow." And I asked him which ones they were and he mentioned, I think it was 1.52, 1.53. After Kennedy told Larson to get the Local 701 men off the cranes, in the telephone conversation which Radovich placed at 8:30 a.m., Kennedy instructed Radovich to obtain crane operators from Local 50. Radovich protested: "These men simply are not prepared at this time to operate these cranes, I think it would be a mistake." Kennedy was adamant and repeated: "Go out and tell those guys from Local 50 to get us some operators." Radovich then called the Astoria PMA-ILWU dispatch hall and ordered operators. The dispatcher said, "You must be kidding" and referred Radovich to the Local 50 members of the Port Labor Relations Committee. Rado- vich located the committee members on the dock in the presence of Al Rissman, the Local 50 foreman on the Rocky Maru and said "Lou is telling me to tell you to get us some operators to -put on the cranes." Rissman asked, "You mean they're going to operate the cranes right now?" Radovich replied, "Yes. This is what Lou wants." Rado- vich testified: Then Mr. Rissman said, "somebody is going to get killed. These guys aren't that experienced that they can operate these cranes. They haven't been on these particular cranes before. I said, "Al, I told that to Lou, but this is what he wants. Let's you and I go back and try to convince Lou again." So we went back to the office. I called the Portland office again and asked for Lou. He got on the line.4 I instructed Larson to tell the Local 701 operators and oilers to "come off the machines," and after Kennedy had instructed Radovich to "get members of the ILWU to hoist the cranes." (Continued) BRADY-HAMILTON STEVEDORE COMPANY said, "Lou, I talked to Al Rissman, I've talked to men of the LRC. They don't think these longshoremen, the operators that we want, would be properly qualified or capable of operating these cranes at this time." I said again, "Let's just pull the cranes away from the ship and go into this later." And at this stage of the morning we were still involved with PMA, and Lou again repeated, "No, we've got this other beef about safety. They're working on that with PMA and PMA is telling us that these men have got to work with the 701 men." I said to Lou, "From what I have heard from these men down here and the atmosphere, they never will go to work with 701 or Willamette operators on the cranes, no matter what the arbitrator says, no matter if it costs them $50,000 a day, they will not go to work with 701 operators. I again suggest that we simply pull the cranes away from the ship." Then Lou replied, "Well, this is out of our hands. PMA has got this beef. We've got to settle that first. Radovich did not give up. He spoke to the agent for the Japanese company whose ships Respondent was loading and obtained the shipper's permission to break the log bundles and to load with ship's gear instead of floating cranes. Radovich telephoned Kennedy, communicated this information, and Kennedy authorized the procedure, stating: "I don't think PMA can say anything about this because now our principal is telling us that he wants to go to work with ship's gear, and you can make arrangements to pull the cranes away right now." Tugs were ordered and the first crane was moved from ship's rail to the face of the pier about 10 a.m. By 12 noon, the start of the 1-hour lunch period, all the cranes had been moved, the log bundles had been broken, loading had resumed with ship's gear, and six Local 50 longshoremen had reported to Larson. Kennedy arrived at Astoria shortly before 1 p.m. and told Larson, "take the longshoremen and go over on the cranes and start training and get them familiarized." At 1 p.m. Larson took the six longshoremen to one of the cranes and showed them how to start the engine. A few minutes later five Local 701 members appeared on the pier and demanded that Larson get off the barge. Larson climbed up on the dock where he was subjected to verbal abuse. The longshoremen shut off the engine and joined the group on the pier. Larson then invited everyone to the gear locker where Mr. Kennedy announced to the Local 701 men: "I'm sorry, fellas, but I guess we can't use you any more in the log loading operation because of my contract with ILWU and I have no contract with 701. You'll have to report to Willamette for further instructions." Shortly thereafter Ty Stanton, a Local 701 operator, told Larson that he had talked to Willamette and, as Larson testified: He stated that Willamette had instructed him that he was to stay by the cranes and they were going to take an inventory. They wanted him to take the inventory this afternoon of the equipment that was on the cranes, 5 "Unobjected to hearsay is admissible and of probative value. . N L R B v. International Union of Operating Engineers, Local Union No 12," 157 and there was a certain amount of equipment that Willamette Western wanted to remove from the cranes and get them off inventory. They wanted him to stay there and complete this inventory, which he did. And then also a representative from Willamette came at that instant. I can't remember the gentleman's name, but he came there also, later in the afternoon and they proceeded with this inventory. And then also at this point Mr. Kennedy instructed me to-not to try to run the cranes any more that day and to send the longshoremen home and come back the next morning and resume. No Local 701 member has worked on any of Respon- dent's operations in Astoria since April 3, 1969. There are at least two significant gaps in testimony. The first is the lack of detail as to the fragment of telephone conversation between Larson and some unidentified person before work was scheduled to start. Larson was overheard to say: "Local 50 had a meeting this morning and they are going to refuse to'hook logs on the ROCKY MARU and the JAPAN LAUREL." The second is the lack of detail concerning the message which Ferguson found when he arrived at his office sometime "between 8:00 and 9:00 o'clock." Larson testified that he had only two telephone conversations with Lou Kennedy on the morning of April 3. Others in Respondent's office that morning were, Kennedy's son, Jim, and Kennedy's partner, Whisnant. Neither testified in this proceeding. Either could have received the message from Larson, and Larson was not questioned about any telephone conversa- tion with anyone prior to 8 a.m. Ferguson, who was in charge of the PMA office in Portland, supervises the work of "approximately six labor relations people." Any one of these may have received one or more messages from Respondent before Ferguson arrived at his office, and any of these may have given advice to Whisnant or to either of the Kennedy's prior to Ferguson's arrival. No subordinate of Ferguson testified, nor did Ferguson describe the message which caused him to telephone Mr. Kennedy. I infer and find from the fully credited testimony of Radovich5 that, prior to Ferguson's arrival in his office, one of his subordinates had received from Respondent the information that Local 50 men were "standing by" in reliance on the "health and safety" clause of the PMA-ILWU contract, had instructed Respondent not to capitulate, and had initiated contract procedures to resolve the "health and safety " issue. I further find that Ferguson did not arrive at his office until after Kennedy had instructed Larson to order the Local 701 men off the cranes. Ferguson admitted on cross-examination that it could have been as late as 9 a.m. or after when he reached his office on April 3. Kennedy stated on cross-examination that his talk with Ferguson could have been as late as 8:30 and stated positively that his talk with Ferguson took place after he told Radovich "that [the Local 701 operators and oilers] would have to go." 413 F.2d 705, 707 (C A. 9), and cases there cited ' 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Sequels to April 3, 1969 The following stipulation was received: If competent witnesses were called they would testify that picketing [by Local 701 ] took place with respect to the action of Brady-Hamilton Stevedore Co. at Astoria, Oregon, on April 3, 1969, in regard to the crews operating the Willamette floating crane barges and the telegram from Local 701 to Brady; that they put up picket lines in front of all the ship loading and ship discharging operations at Astoria beginning on April 19, 1969, and picket lines in front of Terminal 4 in Portland, Oregon, where Brady-Hamilton was working beginning on April 22, 1969.... And also beginning on April 22, 1969, the picket line was put up and carried on in front of the Brady- Hamilton offices in Portland. These pickets displayed signs or banners stating, "Brady-Hamilton wrongfully discharged crane operators at Astoria, Local 701 IUOE." This picketing continued until the date in May, 1969 when it was enjoined by the United States District Court. [The injunction issued against both Local 701 and Local 50.1 Following the Board's 10-K order of February, 1970, Local 701 served notice asking the Court to modify the injunction to free it of its restraint, and this was put off calendar when the Board gave further consideration to petitions and other matters presented by the Employers and Local 50 of the ILWU; that the motion was put back on the calendar following the order of the Board in July of 1970 and that Local 701 [and the General Counsel, NLRB] appeared in Court in early August, 1970 [and moved] that the injunction which issued against both Longshoremen and Operating Engineers be modified to delete Operating Engineers . . . . The District Court denied this motion on September 10, 1970. Local 701 took the matter to the Court of Appeals and Local 701 and the Board now assert that Local 701 should be free to picket and not be subject to the restraint of that injunction. E. The Alleged Refusal To Bargain The complaint alleges: 3. b. At all times material herein, Willamette Western Corporation has been a member of the Oregon-Colum- bia Chapter, Associated General Contractors of Ameri- ca, Inc. (herein called AGC), the latter being an association of employers engaged, inter alia, in repre- senting its members in collective bargaining relation- ships with various labor organizations; has designated to AGC its bargaining authority; and has been party to a contract between AGC and Engineers covering its operating engineers in the entire State of Oregon, and part of southwest Washington. s s * s 6. d. At all times material herein, Respondent and Willamette have been co-employers of all employees engaged in the operation of the floating cranes used by Respondent in its Astoria, Oregon, operations. 7. The crane operators described above in paragraph 6 when employed solely by Willamette and when employed jointly by Respondent and Willamette were at all times covered by the AGC-Engineers contract described above in paragraph 3. b. 8. All operating engineers employed by employer signatories to the AGC-Engineers agreement referred to above in paragraph 3. b., including all employees of co-employers Respondent and Willamette engaged in the operation of floating cranes at Astoria, Oregon, ... constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 9. At all times material herein, Engineers has been duly recognized by AGC and its member-employers, including Willamette as the exclusive representative of all employees in the unit described above in paragraph 8 . . . within the meaning of Section 9(a) of the Act. The complaint further alleges in substance that Respon- dent without notice to Local 701 capitulated to the demand of Local 50 that the Local 701 operators and oilers be replaced by longshoremen who were members of or represented by Local 50 and, on April 3, 1969, unilaterally and without notice to Local 701 , discharged the Local 701 operators and oilers , and that by these acts "Respondent refused to meet or to bargain collectively with " Local 701 in violation of Section 8(a)(5) of the Act. The complaint makes no reference to the telegraphic demand of Local 701 that its members be reinstated. The General Counsel in his brief to me argues: Respondent's termination of Engineers' members also violated Section 8(a)(5) of the Act. Respondent was aware that Engineers Local 701 represented the crane operators. It knew that each operator and oiler terminated was a member of that union (Tr. p. 238). Respondent had also known for several years that Engineers had a collective bargaining contract (G.C. Exhibit #2) with its co-employer, Willamette (Tr. p. 239). As co-employer of the floating crane operators and oilers, it not only was bound by that collective bargaining contract, but also was obligated to recog- nize Engineers Local 701 as the majority representative of the floating crane operators and oilers . Consequently, Respondent's discharge of Engineers' members without prior notice to Engineers constituted a unilateral change of working conditions and a modification of contract violative of Section 8(d). The fact that the collective bargaining contract between Respondent's co-employer Willamette and Engineers Local 701 is (on its face at least) limited to employees of Willamette, does not preclude a finding of an 8(a)(5) violation on the part of Respondent, nor a bargaining order directed against it. Drapery Mfg. Co., 166 NLRB 805. Counsel for Local 701 in his brief to me argues: On April 3, 1969, Brady-Hamilton's contract with the Longshoremen excluded the operation of floating cranes. Brady-Hamilton knew that the floating crane operators were members of Local 701 and that Willamette Western had a contract with Operating Engineers 701 (Tr. pp. 238, 803, 810). Brady-Hamilton knew that these floating crane operators were deemed to be their employees for all purposes . Brady-Hamilton BRADY-HAMILTON STEVEDORE COMPANY 159 did not discuss the firings with Operating Engineers 701. It did not bargain with that union about its proposed plan to lay off Operating Engineers and substitute Longshoremen. Brady-Hamilton received a wire from Operating Engineers 701 demanding the men be put back to work but it never offered reinstatement. Since Operating Engineers 701 was the bargaining representative of these employees , who were co-em- ployees of Brady-Hamilton, Brady-Hamilton had a duty of bargaining with Operating Engineers 701. They refused and failed to do so. The question came up at the hearing whether an appropriate unit for bargaining consisted of the nine floating crane operators who were working for Willam- ette Western and Brady-Hamilton at the port of Astoria. Willamette Western was part of an overall employer's unit under the Associated General Contrac- tors contract with Operating Engineers 701. When Brady-Hamilton took over these employees in a co- employer status with Willamette Western they adopted the provisions of the existing contract and were bound by its terms. Brady-Hamilton was being backcharged for the wages the men received under the contract. They were paying workmen's compensation and Longshore-Harbor Worker's insurance on the men. They exercised all the powers of supervision over the men. They felt they had the right to fire the men and in fact did fire them. They knew the men had a bargaining representative and in fact a collective bargaining contract. When Brady refused to respond to the telegram demanding reinstatement it became crystal clear that they were failing in their bargaining duty. This is not a traditional 8(a)(5) case yet every element of 8(a)(5) is present. The men involved were employees of Brady-Hamilton . Operating Engineers 701 was their representative and Brady -Hamilton refused to bargain collectively with Operating Engi- neers 701. I specifically find: 1. Respondent and Willamette were co-employers of the Local 701 operators and oilers employed in Astoria. 2. Respondent was not an agent or representative of Willamette. 3- .-Willamette was not an agent or representative of Responde nt: 4. Local 701 did not at any time demand that Respondent enter into a separate agreement adopting the terms of the AGC-Local 701 contract. 5. Local 701 did not assert at any time that Respondent was bound by any of the terms of the AGC-Local 701 contract. 6. Local 701 did not at any time seek to process any grievance with Respondent under the terms of the AGC- Local 701 contract. 7. Respondent is not engaged in the building and construction industry and could not, without violating Section 8(a)(3) of the Act, adopt the terms of the AGC- Local 701 contract making union membership mandatory after 8 days and restricting subcontracting to other signatories to the agreement. 8. Respondent was not a party to, nor was it bound by, any of the terms of the AGC-Local 701 contract. 9. Local 701 did not at any time demand recognition by Respondent as representative of Respondent 's employees in any appropriate unit. The telegram of April 5, 1969, did not constitute a demand for recognition and bargaining, nor does the complaint so allege. 10. The only appropriate unit for bargaining encom- passed by this complaint is the multiemployer unit described in the AGC-Local 701 contract. 11. Respondent is not a member of, nor represented by, Associated General Contractors. 12. Associated General Contractors is not a party to this proceeding. 13. Respondent has not refused to bargain collectively with the representatives of its employees subject to the provisions of Section 9(a) of the Act and has not engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. F. Concluding Findings 1. On the morning of April 3, 1969, and for varying periods of time prior thereto, the following named individuals were employees of Respondent: Crane Operator Norman Gustafson Paul Bell Elwyn Tyee (Ty) Stanton Tyee Richard (Dick) Stanton Oiler or engineer John Stewart Neal Matson Warren Matson Virgil Williamson This finding is required by the following facts: While ships were loading, all of the foregoing worked as a team with longshoremen employees of Respondent under the imme- diate direction and control of Respondent's foremen. When ships were not loading all of the foregoing were subject to the sole and exclusive control and direction of Respondent's supervisor, Dale Larson. All of the foregoing were paid by Respondent , through Willamette, at straight hourly rates . These facts alone are sufficient to constitute the above-named employees of Respondent . General Teamsters, etc. (Associated Independent Owner-Operators, Inc.), 181 NLRB No. 67. Here the direct employment relationship is further evidenced by the terms of the charter parties, and by the fact that Respondent carried workmen's compensation insurance for each of the above-named individuals. 2. Respondent knew on April 3, 1969, and for an indefinite period prior thereto, that all operators and oilers on its chartered floating cranes were members of Local 701, were not members of nor represented by Local 50, and none had been dispatched from the PMA-ILWU hiring hall. 3. On April 3, 1969, Respondent discharged, and has since failed and refused to reinstate , each of the individuals named in finding 1, supra, because he was a member of 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 701, and because he was not a member of Local 50, and for no other reason. 4. Respondent's purported reliance on the terms of the PMA-ILWU Pacific Coast Longshore Document, and the "myriad of other documents and materials" described by its counsel, is a pure afterthought. The Local 710 operators and oilers were discharged between 8:20 a.m. and 8:30 a.m., after Respondent obtained Willamette's consent, while PMA was insisting to Respondent that Local 50 members must continue to work with the Local 701 operators, and before Respondent was advised by PMA that Local 50 "under the terms of the agreement" could "insist on driving the cranes." Under these circumstances, the contract, even if it lawfully restricted the work of operators and oilers to employees dispatched from the PMA-ILWU hall would not excuse the discharge of the Local 701 members. Hammond Lumber Co., 85 NLRB 1320. 5. Ty Stanton became an employee of Respondent when the TITAN went under charter on November 1, 1966, and he continued to operate the crane on the TITAN until he was discharged on April 3, 1969. While the record is silent as to the number of years or months each of the other dischargees had been employed by Respondent, it is clear that all operators and oilers on the floating cranes used by Respondent in Astoria were, from and after November 1, 1966, to April 3, 1969, members of Local 701 and that none was a member of or represented by Local 50. By their agreement to this arrangement, over this long period of time Respondent and Local 50 forfeited any right which either may have had to invoke any contract right to bring about the discharge of the individuals named in finding 1, supra. Kenny Construction Company of Illinois, 143 NLRB 1260, 1265-66. 6. The discharge of the Local 701 operators and oilers was neither required nor permitted by the express term of any agreement between Respondent and ILWU. Although evidence was tendered, and rejected, relating to the history of section 1.5 of the Pacific Coast Longshore Contract, and actions of various Joint Labor Relations Committees at other ports, on other equipment, at other times, no 6 Respondent would have me infer from the following testimony of Larson that such a claim was made: Q. (By Mr. Ernst) Now, at any time were there any discussions in which you participated with longshoremen in Astoria, regarding Willamette supplying operators and oilers for the Willamette cranes that came down under charter to Astoria? A. Yes. Q. As best you can recall when did you have such a discussion? A. I believe it was back in-prior to the time the first cranes came down, just as they were in the process of coming down, which I believe was in 1964. Q. . . . what was the first time after the two cranes came down under charter? a a s a a A. I would say practically every other month. Every month we have a meeting, a union meeting. Q. Who is we? A. Local #50. a * a a a Q. What was said, Mr. Larson, at the first of such meetings at which the subject came up after about November 1, 1966, with respect to Willamette oilers and operators working on Willamette cranes while they were used in various ways in moving logs out of the water to ships? A. It wasn't liked; that is about as simple as I could say it. Q. I want to know what was said? evidence was tendered of any prior claim by Local 50, or ILWU, or any official of either that the operation of floating cranes in Astoria harbor was in any way covered by the Pacific Coast Longshore Contracts The first notice of any such claim was the statement made to Radovich by Roy Niemi, of Local 50's Port Labor Relations Committee, at their second conversation on the Astoria dock , shortly before 8 : 15 a.m. on April 3, 1969 . Niemi specifically cited section 1.5 of the Pacific Coast Longshore contract which provides: 1.5 All machinery, equipment and other tools now or hereafter used in moving cargo shall be operated by longshoremen when used in an operation covered by this Contract Document and the operation thereof is assigned to longshoremen and is covered by this Contract Document, provided that exceptions there- to-as to individual nonlongshoremen or classes of workers who are not longshoremen and as to tools or classes of tools-may be continued and any exceptions may be set up, modified or eliminated by joint agreement of the Association [PMA] and the Union. (a) Exceptions described and procedures provided for resolving disputes as set forth in Section 1.5 and subordinate subsections shall be construed in connec- tion with the agreement of the Employers to provide skill training for longshoremen so as to minimize the grounds for exceptions listed in Subsection 1.54. When trained skilled longshoremen, certified as capable of performing work now assigned by the Pacific Maritime Association member to nonlongshoremen, are availa- ble, such longshoremen will be assigned to such work, provided no union jurisdictional work stoppages are caused ... . (b) Where Pacific Maritime Association or its member companies have existing bargaining relation- ships, have granted recognition to, and have assigned work to bona fide labor unions as a result of such relationships and recognition; or where status quo exceptions relating to other unions are now set forth in Section 1, International Longshoremen's and Ware- housemen's Union will not make any jurisdictional A. Basically the longshoremen didn't like somebody else doing their work. a a a a a Q. Prior to November of 1966 was this matter ever taken up in the Astoria Port Labor Relations Committee: A. To my knowledge, yes. Q. Was this matter at any time discussed in Labor Relations Committee after November 1, 1966, when the Brady charters had been executed and the cranes were there from Willamette? A. I don't know. (Two months before April 3, 1969, in Respondent's office in Portland): A. Either Mr. Kennedy or Mr. Whisnant came straight forward and asked me if I felt longshoremen could handle the loading or the running of the floating cranes in Astoria. Q. What did you say? A. I said, "Yes." I said I thought they could .... They asked me if they thought they should proceed. They asked me strictly for my recommendation . . . . I said that I thought at this time we should not as Brady-Hamilton make a move on their own . . . that I felt there was going to be some action taken by ILWU on a coast-wide basis; in other words, I felt the ILWU has a head office in San Francisco set up by a coast labor relations committee, and I personally, felt that in the not too distant future they were going to say, "Listen, Local Number 50, those are your jobs; start doing them." BRADY-HAMILTON STEVEDORE COMPANY 161 claim or cause any jurisdictional work stoppage dispute involving Pacific Maritime Association or such mem- ber companies with relation to such work assignments 1.51 The individual employer shall not be deemed to be in violation of the terms of the Contract Document assigning work to longshoremen if he assigns work to a nonlongshoreman on the basis of a good -faith conten- tion that this is permitted under an exception provided for herein. 1.52 Should there be any dispute as to the existence of terms of any exception, or should there be no reasonable way to perform the work without the use of nonlongshoremen, work shall continue as directed by the employer while the dispute is resolved hereunder. 1.53 Any such dispute shall be immediately placed before the Joint Coast Labor Relations Committee .... The Committee may act on the grounds set forth in 1.54 or on any other grounds ... . 1.54 Any such dispute that is not so resolved by the Committee within seven (7) days after being placed before it, may be placed before the Coast Arbitrator on motion of either party. The Arbitrator shall decide whether an exception should be upheld and may do so on the following grounds only: (a) Nonlongshoremen were assigned the skilled or unskilled labor in dispute under practices existing as of January-August 10, 1959, arrived at by mutual consent and as thereafter modified or defined by the parties or the Joint Coast Labor Relations Committee; or (b) The individual nonlongshoreman involved has been dependent on longshore work of the nature involved in the dispute so that the equities in favor of his,continuing to make his livelihood in the performance of longshore work outweigh the equities in favor of having this work done by longshoremen; or (c) There are available no longshoremen or too few longshoremen fully skilled in the operation of the tool in the port involved and there are available in the port (or in the larger area in which skilled longshoremen are not available) nonlongshoremen having high skill in the operation of the tool; or (d) There is a shortage of longshoremen in the port area; or (e) Tools are not available on a bare boat basis and reasonable bona fide efforts to obtain them have been made and there is no reasonable substitute tool available. If the foregoing language be construed to require or to permit the discharge of "nonlongshoremen " employees, its very existence would violate Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act. N.L.R.B. v. Broderick Wood Products Co., 261 F.2d 548 (C.A. 10). If the foregoing language be construed as exceeding the lawful bounds of a "work preservation clause " as delimited by the United States Supreme Court in National Woodwork Mfg. Assn. v. N.L.R. B., 386 U.S. 612, and Houston Insulation Contractors v. N.L.R.B., 386 U.S. 664, its very existence would violate Section 8(e) of the Act. N.L.R.B. v. Milk Drivers' Union [Associated Milk Dealers, Inc.], 392 F.2d 845, enfg. 159 NLRB 1459. Given a lawful construction , the foregoing language does not authorize Respondent to modify its method of doing business with Willamette by ceasing to use the services of employees supplied by Willamette. The argument of Respondent, i.e., that Local 701 crane operators and oilers were not employees of Respondent but were employees only of Willamette and that the Pacific Coast Labor Contract required that floating cranes be operated by longshoremen, would require me to find as a prerequisite to dismissal of this complaint that Willamette was a subcontractor and that the ILWU-PMA agreement required Respondent to "cease doing business" with Willamette, as the term "cease doing business with any other person" is construed by the Supreme Court of the United States in N. L. R. B. v. Local 825 International Union of Operating Engineers, 400 U.S. 297. In view of the fact that no longshoremen employed by Respondent under the ILWU-PMA contract had ever operated a floating crane in Astoria, such a construction of the contract would be tantamount to a finding that- the contract violates the prohibitions contained in Section 8(e) of the Act. I am enjoined by the Supreme Court to give a lawful construc- tion to the contract whereever possible and I do so here. N.L.R.B. v. News Syndicate Co., Inc., 365 U.S. 695. 7. Respondent has not refused to bargain with Local 701 within the meaning of Section 8(a)(5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth herein, occurring in connection with its operations, have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Section 8(b)(4)(D) is designed for the protection of a neutral employer trapped between the claims of rival unions. It is not designed to shield either employers or unions from the consequences of violations of other sections of the National Labor Relations Act. See, e.g., N. L. R. B. v. I. U.O. E., supra. The instant case stands on its own record and, on this record, Respondent has violated Section 8(a)(3) of the Act. I cannot, however, ignore the possibility that the Board may, in reviewing the decision of Trial Examiner James T. Barker in Case 36-CD-54, reverse its 10(k) determination and award the work in dispute to Local 50. Should the work of operating floating cranes in Astoria harbor be awarded to Local 50 either by the Board on its own volition or by direction of a United States Circuit Court of Appeals, such an award would be a complete defense to the 8(a)(1), (3), and (5) allegations of the complaint . Local 502, International Hod Carriers and Common Laborers Union of America, AFL-CIO (Cement- work, Inc.), 140 NLRB 694. On the other hand, Local 50 may, at any time, elect to comply with the Board's 10(k) Decision and Determination of Dispute issued February 26, 1970, thus depriving Respondent of this possible defense. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I shall therefore recommend that Respondent be required to reinstate the Local 701 operators and oilers discriminatorily discharged on April 3, 1970, and make them whole for any loss of pay suffered, and I shall further recommend that Respondent not be required to take any action unless and until it has been notified by the Regional Director for Region 19 of the National Labor Relations Board that Local 50 has complied with the Board's Decision and Determination of Dispute reported at 181 NLRB No. 51. My recommended order shall not include the customary requirement that the discriminatees be offered substantial- ly equivalent employment in the event that their former jobs no longer exist, since it is apparent from this record that there are no substantially equivalent jobs in Respon- dent's operation. There are indications on this record that the operators and oilers discharged by Respondent on April 3, 1969, were transferred by Willamette to other work without loss of pay, and that ships are now building in Japan with gear which will handle large log bundles and thus obviate the need for floating cranes . These matters were not litigated and may best be left to the compliance stage of this proceeding. See, e.g., Austin Company, 101 NLRB 1257, 1260. CONCLUSIONS OF LAW 1. Brady-Hamilton Stevedore Company is an employer within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 701, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. International Longshoremen's and Warehousemen's Union, Local No. 50, is a labor organization within the meaning of Section 2(5) of the Act. 4. By discriminating in regard to the hire and tenure of employment of employees Norman Gustafson, Paul Bell, Elwyn Tyee (Ty) Stanton, Tyee Richard (Dick) Stanton, John Stewart, Neal Matson, Warren Matson, and Virgil Williamson, thereby discouraging membership in Interna- tional Union of Operating Engineers, Local 701, AFL- CIO, and encouraging membership in International Long- shoremen's and Warehousemen's Union, Local No. 50, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By thus interfering with , restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. [Recommended Order omitted from publication.]