Longshoremen Local 1593 (Strachan Shipping Co.)

CLERKS AND CHECKERS LOCAL NO. 1593 Clerks and Checkers Local No. 1593, International Longshoremen's Association, AFL-CIO (Strachan Shipping Company, et ai.) and Daniel Roy Moore Clerks and Checkers Local No. 1593, International Longshoremen's Association, AFLCIO and Ho- ward Beckham Clerks and Checkers Local No. 1593, International Longshoremen's Association, AFL-CIO and Jack Land Caldwell Shipping Company and Jack Land. Cases 12-CB-1585, 12-CB-1620-2, 12-CB-1586, 12- CB-1620-1, 12-CB-1597, 12-CB-1598, and 12- CA-6853 January 26, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On August 31, 1976, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this proceeding. Thereafter, the General Counsel and Charging Parties Moore and Beckham filed excep- tions and supporting briefs, Respondent Clerks and Checkers Local No. 1593 filed cross-exceptions, a supporting brief, and replies to the briefs filed by the General Counsel and by Charging Parties Moore and Beckham, and Respondent Caldwell Shipping Com- pany filed a brief in response to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. 1. The Administrative Law Judge found that Respondent Union violated Section 8(b)(1)(A) of the Act by maintaining in effect an illegal referral system which conditioned priority in referral upon union membership. He further found that Respondent Union violated Section 8(b)(1)(A) and (2) by refusing to refer Howard Beckham after his suspension from i We hereby correct certain inadvertent errors made by the Administra- tive Law Judge: (I) The Administrative Law Judge at sec. Iil, par. 3, stated that it is alleged that the Union discriminatonly refused to employ Land, whereas the complaint alleges that Respondent Caldwell discriminatorily refused to employ him. (2) The Administrative Law Judge at sec. Ill, B., par. 4, stated that the Union began to hear complaints from the membership when Howard Beckham did not resign from the Union, whereas it is clear from his Decision that the membership complained when Beckham did not resign from the fire department. (3) The Administrative Law Judge at sec. 234 NLRB No. 98 union membership on April 3, 1975. The Administra- tive Law Judge further concluded that Respondent Union did not violate Section 8(b)(lXA) of the Act by threatening reprisals against Beckham if he refused to withdraw his grievance with the seniority board, suspending him because he refused to with- draw his grievance, and breaching its duty of fair representation by failing to process Beckham's griev- ance before the seniority board. The General Coun- sel has excepted to the Administrative Law Judge's dismissal of these latter allegations. For the reasons set forth below, we find merit in these exceptions. The record shows that Respondent Union changed the seniority referral roster to Beckham's substantial detriment in January 1975. Thereafter, Beckham filed a grievance, dated February 26, 1975, with the seniority board, a body composed of union and management officials, which, pursuant to a contract between Respondent Union and the Jacksonville Maritime Association, is responsible for the opera- tion of seniority rules on a local basis. In his grievance Beckham complained that Respondent Union was not fairly applying the seniority system in that, inter alia, he was entitled to 3 years' qualifying service in determining his proper position on the seniority list and that Respondent Union had not been consistent in determining when an applicant for membership becomes a member. At the time Beckham filed his grievance, McDan- iel, a management representative to the seniority board, told him that the seniority board did not then exist and that there were no seniority rules in existence at that time since they had expired with the contract on October 1, 1974. McDaniel, however, also indicated that it would be appropriate for Beckham to file the grievance because new seniority rules were being prepared by Respondent Union and would be ready shortly. At the hearing, McDaniel testified that he did not contact Beckham after that date because he thought Beckham was pursuing his grievance through the Respondent Union. The rec- ord, however, is unclear whether the seniority board in fact continued to operate during the hiatus between the expiration of the contract on October 1, 1974, and the adoption of new seniority rules on March 26, 1975. On March 3, 1975, a few days after Beckham filed the grievance, Respondent Union's president, White, III, B, par. 12, stated that Beckham was not referred by the Union until June 1975, whereas the record reveals that the correct date for the resumption of his referrals was September 17, 1975. (4) The Administrative Law Judge at sec. III, B, "Discussion and Analysis," par. 6, concluded that the 8(bX2) violations alleged in the complaint relating to Beckham had not been established, whereas it is clear that except for the 8(bX2) violation found by the Administrative Law Judge regarding Respondent Union's refusal to refer him, no other 8(bX2) violations were alleged in the complaint relating to Beckham. 511 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Beckham that he was "damn tired of these people filing grievances when they had no reason for doing so. And he suggested very strongly that I withdraw the grievance or I was going to open up a whole can of worms for the local." White also told Beckham that Beckham would probably be removed from the Union if he did not withdraw the grievance. Thereafter, on March 10, Respondent Union's execu- tive board considered that portion of Beckham's grievance relating to when an applicant for member- ship becomes a member, rejected it,2 and voted to suspend Beckham and remove his name from the referral roster. On March 26, Respondent Union and the Jacksonville Maritime Association executed new seniority rules which contained identical procedural provisions regarding the seniority board and its operation as had been contained in the previous rules. On April 3, shortly before the membership adopted the actions of the executive board, Secre- tary-Treasurer Moore told Beckham to be content with the last spot on the seniority roster and remain in the Union. Although Respondent Union's executive board considered and rejected that part of Beckham's grievance dealing with membership before suspend- ing him, Respondent Union did not process that portion of Beckham's grievance concerning the seniority referral system before the seniority board. In our view the threats of reprisal against Beckham because he filed and refused to withdraw his griev- ance are as plain as the words spoken by Respondent Union's top officials. White made it clear that he did not want the Union's application of the seniority system to be reviewed by the seniority board which included management officials. Both White and Moore stated, explicitly, the quid pro quo. Indeed, Moore's remarks, coming before the membership adopted the executive board's action, demonstrate convincingly that Respondent Union was prepared to revoke the suspension if Beckham would simply withdraw his grievance. In view of these statements by Respondent Union's top officials, it is apparent that Respondent Union's claim that Beckham was suspended because he refused to resign from the Jacksonville Fire Depart- ment was pretextual. Thus, Beckham had been a so- called dual employee for 2 years but Respondent Union took no action to suspend or remove him from membership because of his dual employment until he refused to withdraw his grievance. In addition, we note that Respondent Union's claim that dual employment was grounds for denying Beckham union membership rests on a telephone call 2 Procedurally, Respondent Union's consideration of that portion of Beckham's grievance relating to when an applicant's membership becomes effective was consistent with the seniority board's decision in a similar some 10 years earlier. There is no documentary evidence that this policy remained in effect or that the policy had been applied against any other union member. In these circumstances, we find that Re- spondent Union violated Section 8(b)(IXA) by threatening reprisals against, and by suspending, Beckham because he refused to withdraw his griev- ance. We further find that Respondent Union violated Section 8(b)(IXA) by its failure to process before the seniority board that portion of Beckham's grievance relating to his position on the seniority list. As noted above, Beckham's grievance, dated February 26, 1975, was filed with the seniority board at a time when the collective-bargaining agreement, which contained the seniority rules and provisions for the seniority board, had expired. Although Respondent Union's executive board considered that portion of his grievance relating to his membership on March 10, and subsequently placed that issue before the general membership on April 3, at no time did Respondent Union consider that portion of Beck- ham's grievance concerning his seniority. And, de- spite the fact that as of March 26 the seniority board was again operative and the new rules provided that that board consider grievances within I week after they arose, Respondent Union at no time after March 26 processed Beckham's grievance before the seniority board. Thus, while Respondent Union may not have been obligated to pursue Beckham's griev- ance before the seniority board prior to March 26, it was required to process the grievance after that date in accordance with the new seniority rules. It is therefore clear that Respondent Union's failure to process that portion of Beckham's grievance relating to his seniority, particularly in light of its unlawful threats of reprisals against Beckham and its subse- quent unlawful suspension of him from membership, was because of arbitrary and unfair reasons. Accord- ingly, we find that Respondent Union has breached its duty of fair representation and thereby has violated Section 8(b)(1)(A). 2. The Administrative Law Judge found, and we agree, that Respondent Union, inter alia, violated Section 8(b)(l)(A) and (2) by refusing to refer Jack Land because he was not a member of the Union. In providing a remedy for this violation, the Adminis- trative Law Judge exempted Respondent Union from backpay liability with respect to its refusal to refer Land to Sealand Service, Inc., herein called Sealand. In this regard, the Administrative Law Judge found that "even if [Land] had not been suspended from grievance arising under the old seniority rules in which it ruled that such a question was contingent upon the bylaws of the local union and thus appropriately resolved by the local rather than the seniority board. 512 CLERKS AND CHECKERS LOCAL NO. 1593 the Union, [he] would not have been employed by Sealand." We agree. The record reveals that on June 25, 1975, during the unloading of a Sealand ship, Land was involved in an altercation in which he struck Union President White. Immediately thereafter, White informed Sea- land Terminal Manager Grissom of the incident, whereupon Grissom obtained confirmation from his marine manager, Johnson. Later that day, in a telephone conversation with General Manager Hiers of Caldwell Shipping Company, herein called Cald- well, Grissom told Hiers not to send Land to any more Sealand jobs until further notice. Grissom testified that he based this decision on information he had received from Johnson, and not in response to any request from White. On the following day, June 26, Land was suspend- ed by the Union. According to Union President White's testimony, "a couple of days later" the suspension was rescinded because he was unable to find written authority to suspend a member without a hearing. On or about July 8, Sealand Terminal Manager Grissom learned that Land had again been dispatched to Sealand, and he repeated his instruc- tions to Hiers that Land was not to work on Sealand vessels. As a result, on July 11, 1975, 4 days before the Union's executive board suspended Land for a period of 4-1/2 months, Hiers notified Union Presi- dent White that Sealand did not want Land sent to work on its vessels. Thereafter, Land was not sent to any Sealandjobs until December 1975. We find, in agreement with the Administrative Law Judge, that Caldwell's decision not to hire Land for work at Sealand was motivated solely by Sealand's request and was in no way influenced by the actions of the Union. Thus, as indicated above, Caldwell General Manager Hiers informed the Union on July 11, prior to Land's July 15 suspension, that Sealand did not want Land dispatched for work on its vessels and, as found by the Administrative Law Judge, Caldwell's decision not to hire Land for Sealand jobs was based solely on economic considerations due to its fear of the loss of Sealand's business if it did not comply with its client's wishes. Accordingly, we agree with the Administrative Law Judge that Respondent Union should be exempted from backpay liability for its refusal to refer Land for employment at Sealand. Respondent Union, however, has excepted to the Administrative Law Judge's failure to provide it with an exemption from backpay liability for its refusal to refer Land to Caldwell Shipping Company. We find merit in this exception. The uncontradicted testimony of Hiers reveals that, on July 12, Caldwell decided not to hire Land for work on the vessels of its other major client, Puerto Rico Marine Management, Inc., herein called PRIMMI. According to Hiers' testimony, Caldwell also based this decision on economic considerations after talking to representatives of PRIMMI. Thus, Hiers testified: [Caldwell made] a voluntary decision the next day, due to the situation which came up [Land's June 25 altercation], and hearing other problems at the PRIMMI operation, because this was our main line of business, we made a decision on the next day, July 12, not to hire Mr. Land, and our foreman was instructed accordingly .... The reason we quit hiring him . . . wasn't because of his capabilities or his qualifications. We were afraid that the thing that broke out at Sealand would break out at another pier .... Accordingly, we find that Caldwell decided to no longer employ Land for work at either of its accounts because it feared the loss of their business and, in addition, that this decision was made prior to Land's July 15 suspension from union membership. Further- more, we find that Caldwell's decision was not made in response to Union President White's threat during the week of June 30, 1975, that, although Caldwell could hire Land outside the Union, White would "not be responsible for what happened." The record reveals that, following this threat, and prior to Caldwell's July 12 decision not to employ Land, the Union rescinded Land's suspension and continued to refer him to Caldwell on July 6, 7, 11, and 12. We find that inasmuch as the Union was referring Land to Caldwell immediately prior to and on the very day that the decision was made not to employ him, the Union's previous threat, which related solely to the situation in which the Union had been denying Land referrals to Caldwell, was not a factor in Caldwell's ultimate decision not to employ Land. Accordingly, we shall in our Order exempt Respondent Union from backpay liability for its refusal to refer Land to Caldwell. THE REMEDY Having found that the Respondent Union has engaged in unfair labor practices within the meaning of Section 8(bXI)(A) and (2) of the Act, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We shall order Respondent Union to make Ho- ward Beckham and Jack Land whole for any loss of earnings they may have suffered because of its unlawful refusal to refer them, except that, as set forth above, Respondent Union shall be exempt 513 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from backpay liability with respect to its refusal to refer Land to Sealand Service, Inc., and Caldwell Shipping Company. The uncertainty as to whether Beckham's grievance before the seniority board would have been found meritorious is a direct product of Respondent Union's unlawful action and where, as here, such an uncertainty requires resolution, at least for the purposes of determining monetary responsibility, we deem it only proper to resolve the question in favor of the discriminatee and not the wrongdoer. Accord- ingly, we shall presume that Beckham's grievance, if processed before the seniority board, would have been found meritorious on or about April 2, 1975, and that on that occasion his seniority position would have been advanced to reflect a position on the seniority referral roster warranted by credit of 3 additional years of qualifying service. Therefore, we direct Respondent Union to treat Beckman as though his position on the seniority referral roster reflected 3 additional years of qualify- ing service, and to make Beckham whole for any loss of earnings resulting from the Union's failure to refer him to employment in accordance with such seniori- ty, until such time as all parties, including Beckham, reach an amicable settlement of Beckham's seniority claim or the matter is resolved on the merits pursuant to a full utilization of the grievance procedure of the seniority board under the collective-bargaining agreement. In the event Beckham's grievance is found to be meritorious, but without any retroactive or contributory payments, or is dismissed on the merits, Respondent Union's backpay liability will cease as of the day of such final disposition of the grievance. See Local Union No. 2088, International Brotherhood of Electrical Workers, AFL-CIO (Feder- al Electric Corporation), 218 NLRB 396 (1975). All backpay herein and interest thereon shall be comput- ed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Clerks and Checkers Local No. 1593, International Longshoremen's Association, AFL-CIO, Jackson- ville, Florida, its officers, agents, and representatives, shall: 1. Cease and desist from: 3 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716(1962). 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order (a) Maintaining, enforcing, and otherwise giving effect to a discriminatory exclusive hiring arrange- ment or practice with the Jacksonville Maritime Association, its employer-members, or any other employer. (b) Refusing to refer Howard Beckham, Jack Land, or any other employee because they are not members of the Union. (c) Causing or attempting to cause any of the employer-members of the Jacksonville Maritime Association or any other employer to discriminate against Jack Land, Howard Beckham, or any other employee in violation of Section 8(aX3) of the Act because of their lack of membership in the Union. (d) Threatening a member with suspension or removal from union membership for his refusal to withdraw a grievance filed with the seniority board. (e) Suspending a member from membership be- cause he refused to withdraw a grievance with the seniority board. (f) Failing to process grievances before the seniori- ty board for arbitrary and unfair reasons. (g) In any other manner restraining or coercing employees or applicants for employment in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make whole Howard Beckham and Jack Land for any loss of pay they may have suffered by reason of the discrimination practiced against them, plus interest, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at all places where notices to employees, applicants for referral, and members are customarily posted in the Jacksonville, Florida, referral system, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by the Union's representative, shall be posted by the Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 514 CLERKS AND CHECKERS LOCAL NO. 1593 (d) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain, enforce, or otherwise give effect to a discriminatory exclusive hiring arrangement or practice with the Jacksonville Maritime Association, its employer-members, or any other employer. WE WILL NOT refuse to refer Howard Beckham, Jack Land, or any other employee because of his lack of membership in the Union. WE WILL NOT cause or attempt to cause any employer-member of the Jacksonville Maritime Association or any other employer to discriminate against Howard Beckham, Jack Land, or any other employee in violation of Section 8(a)( 3) of the Act because of his lack of membership in our Union. WE WILL NOT threaten any member with removal from membership in the Union for his refusal to withdraw a grievance with the seniority board. WE WILL NOT suspend any member from union membership because he has filed a grievance with the seniority board. WE WILL NOT fail to process an employee's grievance before the seniority board for arbitrary and unfair reasons. WE WILL NOT in any other manner restrain or coerce employees or applicants for employment in the exercise of rights guaranteed in Section 7 of the Act. WE WILL make whole Howard Beckham and Jack Land for any loss of pay suffered by them by reason of the discrimination practiced against them, plus interest. CLERKS AND CHECKERS LOCAL No. 1593, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO DECISION STATEMENT OF THE CASE PETER E. DONNELLY, Administrative Law Judge: The charges herein were filed by Howard Beckham, Daniel Roy Moore, and Jack Land. These charges allege misconduct by Clerks and Checkers Local No. 1593, International Longshoremen's Association, AFL-CIO (herein called the Union), in violation of Section 8(bXIXA) and (2) of the Act, and Caldwell Shipping Company (herein called Caldwell), alleging violations of Section 8(a)(1) and (3) of the Act. A complaint consolidating the cases was issued on September 30, 1975. Answers thereto were timely filed by both Respondents. Subsequently additional charges were filed and on October 21, 1975, an amendment to the consolidated complaint was issued and timely answers thereto were filed by both Respondents. Pursuant thereto, a hearing was held before the Administrative Law Judge at various dates between February 3 and March 26, 1976. Briefs have been timely filed by the General Counsel, Charging Parties Beckham and Moore, and both Respon- dents. FINDINos OF FACT I. EMPLOYER'S BUSINESS Caldwell is a division of Strachan Shipping Company (herein called Strachan), a Delaware corporation licensed to do business in the State of Florida with facilities in Jacksonville, Florida, where it is engaged in the business of acting as a stevedoring agent or contractor for various companies engaged in the interstate transportation of freight. During the past 12 months, Strachan has received in excess of $50,000 for its stevedoring services performed in connection with the interstate transport of freight. Caldwell is licensed to do business in the State of Florida with facilities in Jacksonville, Florida, where it is engaged in the business of acting as stevedoring agent or contractor for various companies engaged in the interstate transport of freight. During the past 12 months Respondent Caldwell has received in excess of $50,000 for its stevedoring services performed in connection with the interstate transport of freight. Jacksonville Maritime Association, Inc. (herein called JMA), is a nonprofit Florida corporation and is, and has been at all times material herein, an association of employers engaged in the stevedoring and shipping indus- try. JMA exists in part for the purpose of representing employer members including Strachan and Caldwell in the negotiation and administration of collective-bargaining agreements with various labor organizations, including the Union which is recognized as the collective-bargaining representative of employees of JMA members. During the past 12 months, which period is representa- tive of all times material herein, employer members of JMA engaged in stevedoring operations in the shipping industry received in excess of $50,000 for the performance of said stevedoring services. The complaint alleges, the answer admits, and I find that Strachan and Caldwell, individually, and JMA and its members collectively are, each, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 515 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that the Union is operating an illegal exclusive referral system. As to Beckham, it is alleged that the Union, for arbitrary and invidious reasons, refused to process his grievance, disciplined him for refusing to withdraw the grievance, and further that he was discriminated against by the Union as to job referral. As to Moore, the complaint alleges that the Union, for arbitrary and invidious reasons, failed to process his grievance and discriminated against him in job referrals. As to Land, it is alleged that the Union took action designed to cause Land, for discriminatory reasons, not to be referred to jobs through the referral system. In addition, it is alleged that the Union discriminatorily refused to employ Land. The above contentions were alleged to violate Section 8(b)(1)(A) and (2) and Section 8(aX)(1) and (3) of the Act. A. Referral System Facts ' Prior to the year 1971 the Union had no system of referral.2 Until then, when an employer needed checkers or timekeepers they were selected and hired by the employers from lists of available employees furnished by the Union. Under the collective-bargaining agreement effective Octo- ber 1, 1968, to September 30, 1971, between the Union and the JMA, a seniority plan was put into effect to decasualize employment of checkers and timekeepers (G.C. Exh. 5(a)). In essence, this seniority plan established union member classifications (groups A, B, and C) plus a casual or nonunion classification. Selections were to be made by employers in alphabetical order of classification. Casuals were to be employed only after all available men in groups A, B, and C were offered employment. Listings of the men in these groupings were provided to employers by the Union. While there does not appear to have been complete uniformity in the employee selection process, the 1968 seniority plan appears to have been followed and remained in effect beyond the normal expiration date of the contract until May 1, 1973,3 at which time new seniority rules were put into effect to expire coincidental with the expiration of the contract on September 30, 1974. In 1974 the Union and the JMA entered into a contract effective October 1, 1974, through September 30, 1977. Section 14 therein provides: There is conflicting testimony regarding certain allegations of this complaint. In resolving these conflicts, I have credited all of the relevant testimony of some witnesses and parts of relevant testimony of others and in so doing I have taken into consideration where appropriate the apparent interests of the witnesses, the inherent probabilities, the probabilities in light of other events, corroboration or lack of it, and the consistencies or inconsistencies within the testimony of each witness and between the testimony of each and that of other witnesses with similar apparent interests. Testimony in contradiction to that upon which my factual findings are 14. Seniority rules shall be decided and enforced on a local basis. Pursuant to this provision the parties drafted and enacted what were captioned "Seniority Rules" (G.C. Exh. 5(c)). Rule 8 therein provides: RULE 8. Clerks and Checkers shall be listed by the Seniority Board on the following basis: A. True Seniority shall prevail. B. A man's seniority shall be computed by the number of unbroken qualified years of service, beginning with the date of entry into the Union. (Emphasis supplied.) C. Qualified years of service shall be determined by the number of years a man has worked at 700 hours or more per contract year (Oct. I thru Sep. 30) based on the records of the I.L.A. Pension, Welfare and Vacation Administration Office. D. Where two (2) or more men have the same number of qualified years of service, then the determining factor for seniority between those men shall be the date of entry into the membership of Local 1593. E. Date of entry into the membership of Local 1593 shall be determined by the date the membership voted to receive the prospective member, provid- ed he was immediately available and eligible for employment. F. Where two (2) or more men have the same number of qualified years and the same date of entry into the membership of Local 1593, then these men shall have the same seniority status and will be hired by name whenever their seniority level is reached. G. A list of men, according to True Seniority, will be supplied to the Employers. Consideration for employment will be given to the men beginning with the highest senior man. H. AU personnel employed under the terms and conditions of the Agreement between the Jack- sonville Maritime Association and the I.L.A. Clerks and Checkers Local 1593 will receive their job assignments and be governed in these assign- ments in accordance with the By-Laws of Local 1593 as passed on by the membership on January 7, 1975 and any future amendments thereto. The aforementioned By-Laws are hereby made a part of these Seniority Rules. These rules became effective March 26, 1975, and, as provided in paragraph H, incorporated certain bylaws adopted by the Union on January 7, 1975 (G.C. Exh. 6). These bylaws set forth the mechanics of referral, such as based has been carefully considered but discredited. Additional factors, in addition to these general criteria, are noted in evaluating the testimony of some witnesses. 2 The Union represents checkers and timekeepers under contract with the JMA. International Longshoremen's Association, Local # 1408, is a sister local and represents the longshoremen who perform the function of loading and unloading ships. 3 This was because the October 1, 1968, to September 30, 1971 contract was extended by court order pursuant to litigation involving a strike. 516 CLERKS AND CHECKERS LOCAL NO. 1593 priority in referral, and utilizing seniority lists compiled under the criteria set out in the seniority rules. It is clear that the terms of the current seniority rules and bylaws provide for the Union to operate an exclusive referral system and that priority in referral was determined by seniority. Seniority, in turn, was determined by the computation of "unbroken qualified years of service, beginning with the date of entry into the Union" as set out in the above seniority rules. Another provision of the current system should be set out at this point for reference and subsequent discussion. This involves the "first call" concept which was intended to provide individual JMA employers with a continuity of competent employees in responsible positions, primarily timekeepers and chief clerks. These first-call jobs are filled by bid within the Union. Those with first-call status are permitted to work for the individual employer without regard to seniority. However, the bylaws provide that normal seniority applies as to other job assignments. 4 Discussion and Analysis An evaluation of the referral system herein discloses that prior to 1971 JMA employers obtained the services of checkers and clerks themselves, without referral assistance from the Union. After 1971 referral procedures were established as set out above. After White took office as president in January 1975, the current rules were formulat- ed and became effective March 26, 1975. These rules incorporate certain bylaws adopted by the Union on January 7, 1975. The relevant portions of these documents have been set out above. It is the position of the General Counsel that the rules are illegal as discriminatory because priority in employment, otherwise known as seniority, depends upon the date an individual is accepted into the Union, thereby discriminat- ing against those who are not union members in the referral process. I agree. So, in fact, does the Respondent, inasmuch as it joined a stipulation at the hearing to the effect that the seniority rules are and have been illegal beginning with the May 1, 1973, rules through the current rules. It is clear that the referral system herein is an exclusie referral system since the bylaws provide that all personnel employed under the contract are assigned through the Union's central dispatch system. While certain provision is made in the accompanying bylaws for the employer to obtain first-call employees in responsible positions, these are bid jobs within the Union and do not detract from the basically exclusive nature of the referral system. The Union remains the exclusive source of employment of all bargain- ing unit employees. However, this aspect of exclusivity alone does not ipso facto render the present system illegal so long as the system does not discriminate against nonunion employees in the making of referrals. The instant referral system is on its 4 While sec. 13(c) of the current contract reserves to the individual employer the right to choose employees by name from those available, this provision appears to have been modified by rule 4 of the current bylaws which restricts this right by providing, inter alia. Also, in accordance with the Working Agreement, the employer has the face discriminatory because it does precisely that. Seniori- ty, which is concededly the basis of referral, can be acquired only upon entry into the Union. The Union here, while conceding that the referral procedures are illegal as written, contend that in practice they are not illegal. Respondent points out that under clause 13(c) of the contract the employer has the right to call for employees by name. However, the evidence shows that, in practice, the employers do not normally make the selections, the employees are referred by the Union under the seniority plan. The Union also alludes to the first-call provisions of the referral procedures to support its argument that the Employer exercises freedom of selection of its employees. However, the evidence shows that these jobs are filled under the Union's bid system from within the Union among those employees with seniority. The Employer has no unfettered right of selection. Also, the right of selection is limited inasmuch as it is dependent upon procedures under a union bid system which has as its basis the concept of seniority which once again, under the seniority rules, requires union membership. The entire record herein supports the conclusion that the practice under the referral system is substantially the same as the procedures as written. No evidence adduced by the Respondents compels a different result. Accordingly, I conclude that the instant referral system violates Section 8(bXIXA) of the Act. Pacific Maritime Association, 184 NLRB 312 (1970). B. Howard A. Beckham Facts Howard A. Beckham is employed by the city of Jackson- ville as a captain in the Jacksonville Fire Department with some 23 years of service. In addition to his employment with the fire department, Beckham has been employed on the waterfront in the Port of Jacksonville since about 1965, primarily as a checker. Sometime back in 1965 Beckham applied for member- ship in the Union. While he was voted into the Union at that time, he was never sworn in and membership was denied to him at that time because of his full-time employment with the fire department. Rex C. Harris testified that at this time he (Harris) was acting president of the Union and, in that capacity, sought advice from I.L.A. Vice President Thomas Burke, who advised him, in substance, that because of Beckham's other full-time employment he could not be sworn in as a member of the Union. Nonetheless, Beckham continued to pay dues and he has done to date. In March 1973 Beckham again applied for membership even though he still retained full-time employment with the fire department. At this time Beck- ham's sponsor was Cecil Moore. Applicants for union membership are requested to have a union sponsor. Moore testified that, at the time Beckham asked him to be his right to call by name from among the men available, provided the seniority level of the men called is reached during hiring, and the exercising of this right does not interfere with the retention status of another employee. The employee shall also have the right to refuse the job. 517 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sponsor, they had a conversation during which Beckham represented to him that, in order to avoid the problem of his full-time employment with the fire department, he would retire from the fire department after being voted into membership. At a subsequent union meeting Beckham's application was discussed and, in response to concerns expressed by the membership, Moore told them what he had been told by Beckham, i.e., that Beckham would resign upon being voted into the Union. Beckham concedes that he did represent to Moore that he would retire but denies saying that he would do so at any specific time. To date Beckham has not retired. Moore's version is the more inherently plausible based on this record, and I credit him. Thereupon Beckham was both voted and sworn into the Union in March 1973. White testified that after about a month the Union began to hear complaints from the membership when Beckham did not resign from the Union. White testified that the Union voted to admit Beckham because the membership was not aware of Burke's ruling in 1965 and for the additional reason that they believed that Beckham would resign from the fire department and begin full-time employment on the docks within 30 days after he became a union member. It is undisputed that, as a fireman, Beckham is normally unavailable to work every third day. He normally works a 24-hour shift with 2 days off thereafter. At the time Beckham came into the Union, the seniority rules did not require consecutive qualifying years and, despite the fact that Beckham worked in excess of the necessary 700 hours in 1967, 1968, and 1969, he was not credited, for seniority purposes, with any of those years before he came into the Union while he was working as a casual employee. Beckham complained about his position on the list to Jack Land, who was president of the Union at this time. It is undisputed and the rules themselves contemplate that priority of referral is based on the seniority under the rules, and that this seniority is governed by years of qualifying service within a contract year in excess of 700 hours. The current seniority rules also provide that qualifying years must be consecutive and only begin with the individual's date of entry into the Union. As Larry White, president of the Union, testified, a member's position on the seniority list determines the order of job referral. Changes were thereafter made and an adjusted seniority list was issued listing Beckham as first of six in position number 38. In January 1975 White became president of the Union and shortly thereafter Beckham was further reduced in seniority to last of six in position number 38. Beckham protested this treatment to both W. R. Bryant, the dispatcher, and White, and, receiving no satisfaction from them, submitted a grievance to the seniority board dated February 26, 1975. The two-part grievance complained, first, that the seniority system was not being applied fairly 5 Gerard B. Fox, local manager for Strachan and president of the JNIA, testiried that he became a member of the senionty board a month later on the effective date of the rules, March 26, 1975. e Membership on the seniority board under the seniority rules effective May 1, 1973, provide: The following rules shall apply, and the operation of the rules shall be by the Union and, secondly, that the Union has not been consistent in determinirig when an applicant for union membership becomes a member. The grievance was ad- dressed to the following four individuals: Mr. Larry R. White, President I.L.A. Local 1593 Rex C. Harris, Seniority Board Member V. McDaniel, Jr., Seniority Board Member Additional Board Member 5 McDaniel becomes a member by virtue of his position as the JMA employer's representative on the district negotiat- ing committee. Beckham then submitted copies of the grievance to Larry White and to Rex Harris, who had been elected to the seniority board at the end of 1975, and gave two copies to Vernon McDaniel. 6 When he presented the grievance to McDaniel, McDaniel told him that the seniority board did not exist and that there were no seniority rules in effect at this time since the seniority rules by their own terms expired with the contract on October 1, 1974. Paragraph 6 reads: "This seniority plan will remain in effect until the expiration of the present Clerks and Checkers Labor Agreement (September 20 [30], 1974) but may be amended by mutual agreement between Local 1593 and the employ- ers who are party to the Jacksonville Clerks and Checkers Labor Agreement." With this in mind, McDaniel told Beckham it would be appropriate to file the grievance since the Union was preparing new seniority rules which would be ready shortly.7 On March 3, 1975, White called Beckham and, according to Beckham, told him that he was "damn tired of these people filing grievances when they had no reason for doing so. And he suggested very strongly that I withdraw the grievance or I was going to open up a whole can of worms for the local." White also made reference to the 1965 telephone conversation wherein I.L.A. Vice President Burke advised the Local against admitting Beckham as a member. White further told him that he would probably be removed from the Union if he did not withdraw the grievance. Beckham declined to withdraw the grievance. The Union determined to process that portion of the grievance dealing with Beckham's union membership and a meeting of the executive board was held on March 10, 1975, where it was resolved that Beckham be suspended and his initiation fee of $250 be returned. The minutes of the executive board meeting disclose that the basis for this resolution was the 1965 decision by I.L.A. Vice President Burke; ;he work availability requirements of the I.L.A. guaranteed annual income plan; and the understanding by the Union that Beckham would resign from the fire department when he came into the Union in March 1973, which he did not do. On March 13 a special meeting was held and the resolution of the executive board of March 12 was read to those present. They were advised that a vote on governed by a Seniority Board composed of the President of the I.L.A. Local 1593, one elected member, and the Jacksonville Employer's Representative on the District Negotiating Committee, and one other employer's representative party to the Jacksonville Clerks and Checkers Labor Agreement. I These seniority rules were put into effect March 26, 1975. 518 CLERKS AND CHECKERS LOCAL NO. 1593 the matter would be held at the next regular monthly meeting which was held on April 3, 1975. During the day on April 3, 1975, Beckham went to the union hall and delivered to White a letter from his attorney requesting that Beckham not be removed from member- ship. Beckham testified that White regarded the letter as "threatening" but refused to put off the vote, reiterating his intention to bring the matter to a vote that evening. Beckham and Cecil Moore, secretary-treasurer of the Local at this time, had what Beckham described as a "friendly chat" wherein Moore suggested that he be content with the last spot on the seniority roster and remain in the Union. Beckham declined, and left the hall. At the membership meeting on the evening of April 3, the findings and opinion of the executive board were placed before the membership and the membership voted to adopt it. Beckham's suspension was effective from that date. After his suspension and because of his suspension, Beckham was not referred by the Union for employment until sometime in June 1975 when he was reinstated on the advice of counsel pending the outcome of litigation. Discussion and Analysis The complaint alleges that White told Beckham on about March 3, 1975, that if he did not withdraw his seniority grievance he would be removed from union membership. However, the record does not support this allegation. While it appears that White did call Beckham on that date, the purpose of the call was not to threaten or otherwise coerce Beckham, but simply to advise him that, by raising the issue of seniority, he could be creating a problem for himself which as a practical matter could result in his being removed from union membership, particularly since the International had ruled in 1965 that such dual employment was sufficient grounds for denying him union membership. This allegation is also inconsistent with White's expressed reluctance on April 3, the date that the membership voted to expel Beckham, to put off the matter and White's determination to put to a vote the question of Beckham's membership. The complaint also alleges that on or about April 3, 1975, White and other officers told Beckham that if he would withdraw his pending grievance he would not be expelled. There is no probative evidence to support this allegation, only a distorted interpretation of the conversation, which I decline to make, could result in this conclusion. The General Counsel alleges that the Union's executive board voted to expel Beckham and that the membership did in fact expel Beckham because he did not withdraw the pending grievance. The Union takes the position that Beckham's expulsion was the result of his refusal to resign his full-time employment with the fire department when he came into the Union. The record discloses that Beckham was originally denied membership in the Union in 1965 because he was a full-time employee of the city of Jacksonville. It is undisputed that being so employed he was not available to work on the docks I day out of every 3 days since he was employed as a captain in the Jacksonville Fire Department for a full 24-hour period every 3 days. Upon inquiry, Respondent was advised by the Internation- al in 1965 that because of this employment he was not eligible for membership in Respondent. Beckham made another effort to join the Union in 1973 and was successful at this time. He was admitted to membership at this time, at least in part, because of a misrepresentation made to the membership by his sponsor that he would resign from the fire department. When he failed to do so the membership became unhappy with the situation inasmuch as his employment part time on the docks was depriving other workers of employment who depended upon the work for full-time employment. The matter was brought to a head when Beckham filed a grievance alleging, inter alia, that he was being deprived of his rightful seniority. In considering this grievance, the executive board reached the decision which not only denied the grievance but also resolved to suspend him from union membership, citing the 1965 decision by the International. This resolution was adopted by the membership. On these facts, I cannot conclude that Beckham's suspension was the result of his having refused to withdraw his grievance. The General Counsel has not established this allegation. Likewise I conclude that the General Counsel has not established that the Respondent failed in its duty of fair representation to Beckham. If any such dereliction existed in this case, the record does not support it. Indeed, the record herein reflects the orderly processing of his griev- ance. The complaint also alleges that the Union has refused to refer Beckham for discriminatory reasons. In evaluating this allegation, it is important to understand that the Union was operating a discriminatory referral system. Priority in referral depended upon union membership. To deprive Beckham of his union membership then was more than an intraunion disciplinary measure. His suspension also meant that he lost all priority in referral. Based upon a full consideration of the evidence, Beckham's nonunion status was, in my opinion, the reason that he was not referred for employment subsequent to his suspension and not, as alleged by the Respondent, due to any failure on his part to notify the Union of his availability. Accordingly, I conclude that the Union's failure to refer Beckham did constitute an 8(bXlXA) and (2) violation of the Act. However, I also conclude that the 8(b)(2) viola- tions alleged in the complaint relating to Beckham have not been established and I shall recommend their dismis- sal. C. Daniel Roy Moore Facts Moore began his employment as a salaried timekeeper for Strachan in 1955. In 1971 when the exclusive referral system was initiated, Moore continued to be employed on a salaried basis as a Strachan employee under a contractual "grandfather" clause. However, the clause also provides that any replacement for such employee in the future would be made under the hiring hall referral procedures of the contract. In May 1970, Strachan purchased the Caldwell Shipping Company and at this time Caldwell became a division of Strachan. The evidence discloses that they did not, how- ever, become integrated operations but that they main- 519 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tained separate identities and functions. Each maintained a separate managerial hierarchy with its own accounts and customers. Sealand Service, Inc. (herein called Sealand), was one of Caldwell's accounts. Caldwell performed two basic functions for Sealand; one was to handle the dockside stevedoring, and the other to maintain a ware- house for the storage of Sealand goods. These were adjacent facilities located at Eleventh Street (Talleyrand) in Jacksonville, Florida, on the docks. At the time that Caldwell was acquired by Strachan, a management decision was made to move the Caldwell payroll equipment to the Commodore's Point facilities of Strachan and to make up the payroll there for the Sealand warehouse. The necessary information as to employees and timed work, upon which the amounts to be paid were based, was compiled at the Sealand warehouse by John Golish and delivered to Commodore's Point where Moore made up the checks. Golish was paid the higher timekeeper rate. It is undisputed that Moore was not a timekeeper for any Sealand ships. However, he did perform work as timekeep- er for other Caldwell accounts as to conventional (as opposed to containerized) ships. This was pursuant to an agreement between Strachan and Caldwell whereby Stra- chan performed the work of stevedoring conventional ships for Caldwell accounts, with Caldwell itself doing the containerized ships. The first-call timekeeper on the Cald- well ships, except for the conventional ships, was R. L. Pennington who was employed as first call through the Union. Moore was still a salaried employee at this time until he joined the Union on March 6, 1974. Prior to his entrance into the Union, Moore had remained a salaried timekeeper for Strachan despite solici- tations by the Union for him to become a member. His decision to join the Union was prompted by an evaluation of his circumstances. He was convinced that, if the Union ever made a strike issue of his employment by Strachan as a salaried employee, Strachan might be forced to fire him which would leave him without employment altogether. However, Moore also wanted the work security he enjoyed as a salaried employee of Strachan and to this end, sometime prior to March 1974, he spoke to Business Agent W. E. Denmark and Secretary Cecil Moore to explain to them that he would join the Union provided he were able to continue to do the work he had been doing as a salaried employee. He and Reagan, another Strachan salaried employee timekeeper, were given such assurances and a written agreement to that effect was given to them by the Union. The document was dated March 6, 1973, and states: We the undersigned, on behalf of Local 1593, do hereby guarantee that Daniel R. Moore and Ralph E. Reagan, will continue their present positions as time- keepers with Strachan Shipping Company on a first call basis, for as long as they so desire. We do further pledge that we will defend this agreement as long as it is legally possible to do so. The document was signed by Jack Land, president, S. M. Ortega, vice president, John W. Golish, secretary-treasurer, and William Denmark, business agent. Moore testified that he told Golish, when the signed document was given to him, that the word "Caldwell" was left out of it and Golish replied, "Well, everybody knows that Caldwell - what Strachan is." Golish does not recall this conversation and further testified that it was his understanding that the agreement as to Moore concerned only his timekeeping work for Strachan. Both Moore and Reagan were sworn into the Union later that same day, March 6, 1974.8 Just prior to the first of 1974, the work of timekeeping at the Sealand warehouse was done by Golish and W. D. Perry. Both received the higher timekeeper pay rate. They sent their timesheets to Commodore's Point where either Moore or Reagan cut the checks. This changed in early 1974 when Reagan was sent to the Sealand warehouse and the entire timekeeping operation was done by him at the Sealand warehouse. In November 1974, Caldwell acquired the Puerto Rico Marine Management, Inc. (PRIMMI), account. At this time Caldwell established a separate docking and w/are- house facility to accommodate the PRIMMI business. The warehouse and the docking facilities were located at Blount Island. In December 1974, Reagan, the other first-call timekeeper for Caldwell, was reassigned, from timekeeping at the Sealand warehouse, to timekeeping at the PRIMMI warehouse. Fred Roberts was among those referred by the Union to fill the vacated timekeeper job at the Sealand warehouse. Strachan performed the same stevedoring functions for Caldwell on PRIMMI conventional ships as it had for Sealand conventional ships. Robert Pennington, first-call timekeeper for Caldwell who had done the timekeeping on all Sealand containerized ships, did the timekeeping on PRIMMI containerized ships. At the end of 1975 or early 1976, Moore went to Fox with a request that he be assigned Caldwell work, i.e. the work of timekeeping on PRIMMI containerized ships. Fox rejected this claim, explaining, inter alia, that the filling of that job was a Caldwell prerogative. Moore also com- plained to Jack Land, at a time when Land's term was about to expire, that he was entitled to the work on PRIMMI containerized ships. Land testified that, since he was going out of office, he suggested that Moore take up the grievance with White, the incoming president. In January 1975, after White had assumed office, he regis- tered his complaint with White who rejected his claim that he was entitled to the work, telling him to "go look in the mirror and you'll see the greediest son of a bitch in Jacksonville." Moore filed a grievance with the Union dated February 3, 1975. That grievance (G.C. Exh. 14(a)) is essentially a claim by Moore that he is entitled to the work of timekeeper on containerized PRIMMI ships at Blount Island. No mention was made in the grievance about any contention that he was also entitled to work at the Sealand warehouse. The grievance was considered at a meeting of the executive board on March 10, 1975. Moore contends that he wanted to withdraw the grievance to redraft it, but that 8 Reagan did not testify. 520 CLERKS AND CHECKERS LOCAL NO. 1593 White refused. White testified that he had no recollection of this request by Moore to withdraw the grievance. The executive board unanimously rejected the claim made in the grievance. This action was affirmed by a subsequent vote of the membership. At the membership meeting, White asked Moore if he wanted his grievance vote on at the same time that another grievance was being voted on. Moore replied that it did not make any difference. At this meeting Moore contended to the membership that he was entitled to the work on the grounds that Caldwell and Strachan were one and the same. Nevertheless, the mem- bership voted to deny the grievance. Discussion and Analysis There are specific allegations in the complaint dealing with union misconduct involving Moore. First is the refusal to process Moore's grievance for arbitrary and invidiously discriminatory reasons. I do not agree. The evidence discloses that the Union, through representatives White and Bryant, actually solicited the grievance from Moore and even provided the grievance forms which Moore used to file his grievance. The record shows that Moore's grievance was passed upon by the executive board and referred to the membership for a vote. Moore was given the opportunity to speak on his own behalf at the membership meeting and he did so. Further, he was given an opportuni- ty to put off a vote on the matter which he declined. The evidence does not, in my opinion, support any finding that the Union breached its duty to fairly represent Moore. Even if the Union did proceed with the processing of the grievance after Moore asked White to drop it, there is no showing that Moore was prejudiced thereby or even that the Union had any obligation to do so. Indeed, there is no reason why Moore could not have filed another grievance for the purpose of making contentions not made in the original grievance. There is no evidence that any attempt was made to do this. The second allegation relating to Moore alleges a discriminatory refusal to refer Moore. The General Coun- sel and the Charging Party contend that Moore was entitled to first-call timekeeper status with respect to work on PRIMMI containerized ships and Sealand warehouse, both Caldwell accounts. They contend that it was the intent of the parties that the March 6 agreement be so interpreted. In analyzing this contention it is necessary to examine the nature of the document in issue. While it has been called an "agreement," it is in fact a representation or guarantee made to Moore and Reagan by certain union representatives to protect their first-call status at Strachan. Neither Strachan nor Caldwell were parties to this repre- sentation. Neither Strachan nor Caldwell promised Moore anything. Next, let us examine the nature and purpose of the first- call provisions of the contract. As noted earlier, it was a device in the referral system designed to permit an employer, within the bid structure of the union, to acquire individual employees for certain responsible positions, as the employer's needs dictated. The Union was not in any position to "guarantee" first-call status to either of them. Second, even assuming that the agreement is valid and binding on all parties, I am convinced, based upon the entire record herein, that it was the intent of the parties to the agreement that Moore retain his "first-call" status with Strachan only as to the work being performed by him at the time that he came into the Union. Moore was not performing any of the disputed work at the time he came into the Union. As to all other work, he was subject to the normal application of the referral system. It should also be noted that Robert Pennington was already employed as first-call timekeeper for Caldwell and the referral proce- dures do not appear to contemplate one individual occupy- ing first-call status with two companies, even when they are related as Strachan and Caldwell in the instant case. To acquiesce in Moore's demand would have made him, in effect, first-call timekeeper for both Strachan and Caldwell. The General Counsel also alleges discrimination in the Union's refusal to refer Moore since on or about March 12, 1975, which is the date of Moore's grievance. The theory of this violation is that Moore was not given credit for his years of service as a salaried Strachan employee by the Union in computing seniority, and that this loss of seniority resulted in fewer referrals. The Union contends that Moore was given seniority from the time that the Union began to refer him, when he joined the Union on March 3, 1975, and that he was not entitled to seniority for the years he spent as a salaried employee of Strachan. Further, the Union maintained that his duties as a salaried employee of Strachan involved, in addition to timekeeping, other duties such as investigating accidents and making out OSHA reports. Upon a view of the entire record herein, I am of the opinion that Moore is not entitled to credit for his years of service as a salaried employee of Strachan. I note that Moore was unavailable to work through the referral system while he worked for Strachan, so the Union could not have referred him to any employment at all. He was operating outside both the contract and the hiring procedures of the contract and, in addition, performing functions exclusively for Strachan which were not per- formed by employees sent through the hiring hall. Accord- ingly, I shall recommend that this allegation of the complaint as to Moore be dismissed. Based upon the above considerations, I conclude that General Counsel has not established any of the allegations of the complaint relating to Moore. D. Jack Land Facts Jack Land, a union member since 1965, was employed as first-call chief clerk for Caldwell. He had also been active in the Union, serving as president of the Union for the calendar years 1973 and 1974. On June 25, 1975, Land was working as first-call chief clerk in the unloading of a Sealand ship, along with three other checkers at the Talleyrand docks. There was a rain which caused the unloading to stop for a period of time in the morning. Sometime after 11 a.m., the work resumed. Herman Zapf, stevedore superintendent for Caldwell, was advised that all the checkers wanted to quit at I p.m. because of the rain. This created a problem for Zapf who 521 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tried to call White to settle it, but could not contact him. However, pursuant to a call from one of the checkers, White came to the dock just before I p.m. with Charles Bryant. A discussion ensued between White, Land, and the checkers wherein White told them that he did not think that the weather conditions warranted their leaving the job. Land disagreed with this position which lead to a confron- tation between Land and White. There is not complete uniformity in the testimony of the witnesses, but it is clear that Land struck White twice. Land also struck Bryant and Bryant returned this blow with a kick to Land's groin. White did not retaliate. White and Bryant then left the premises. White went to the office of James Grissom, Sealand terminal manager. White told Grissom what had happened. Grissom then called his marine manager, Robert Johnson, who was a witness to the incident, in order to confirm the incident. Grissom, in a telephone conversation on that same date with Steven N. Hiers, general manager for Caldwell, told Hiers that he wanted Hiers to resolve the problem immediately and told him not to send Land any more to Sealand jobs until further notice.9 Grissom testified that he made this decision based on the information he had received from Johnson, and not in response to any request by White. On about July 8, upon an inquiry from White, Grissom called Hiers to see if Land was working on Sealand vessels. Upon getting an affirmative reply, Grissom reiterated his instructions that Land was not to work on Sealand vessels. Hiers explained that he had not received a letter from Grissom to that effect and Grissom told him that he did not think a letter was necessary and that he expected Hiers to follow through on his instructions. On July 11, 1975, Hiers sent a letter to White to the effect that Sealand, their principal, did not want Land sent to Sealand facilities from that day on until further notice. This letter was received by the Union on July 13 and thereafter Land was not sent to any Sealand job until December 8, 1975. He was not referred by the Union to any job until November 12, 1975. Turning now to the Union's reaction to the incident, it is undisputed that a meeting of the executive board of the Union was called on the evening of June 26, the date of the incident. It was a consensus that Land should be suspend- ed for attacking a union official in the performance of his duties and, pursuant to that decision, White told the dispatcher not to refer Land. Referral sheets in evidence support this conclusion. A couple of days later, however, White became concerned when he was unable to find written authority to support the decision to suspend a member without a hearing. He rescinded the order of the executive board and Land was dispatched during the period from July 5 through July 12, more specifically on July 6, 7, 11, and 12. Hiers testified that, sometime during the week of June 30, White called him and told him that the suspension had been lifted and that he had no way of stopping Land from being hired outside the contract, that Hiers could call him at home, but that he could not dispatch him. 9 While Hiers does not recall this conversation, he does not deny it and I credit Grissom in this regard. Zapf testified that he received a call from White on about June 29 concerning Land, but cannot recall the conversa- tion. White concedes making a call but says it dealt with whether or not Hiers had sent any letter covering the matter of employing Land at Sealand. On or about July 11, 1975, White called Grissom and told him that he thought that Land was still being referred to Sealand work. Grissom expressed surprise and called Hiers to see why his instructions were not being followed. Hiers said that he had not gotten a letter on it and Grissom said he did not think a letter was necessary and that he expected Hiers to follow his instructions. Hiers agreed to do so. Grissom testified that nothing was said in this conversation with White about the matter of union respon- sibility for anything. Thereafter White and Bryant filed union charges against Land and a hearing thereon was held before the executive board of the Union on July 15, 1975, which, inter alia, suspended Land for 4-1/2 months retroactive to June 25, 1975, and ending November 9, 1975. Although notified, Land did not appear at the hearing. Land did not appeal the decision. It is conceded by White that initially Land was not referred because he had been suspended. In November, Grissom received a call from Hiers concerning Land's reemployment at Sealand and, pursuant thereto, decided to permit Land to resume his work for Sealand. Hiers was so advised and a letter was sent to the Union dated November 18, 1975, rescinding the July 11 letter. Thereafter Land resumed his work on Sealand ships. Discussion and Analysis Based upon the entire record herein, it is my conclusion that Land was responsible for the altercation at the Sealand docks on June 26, 1975. It is undisputed that Land struck White twice and that White did not retaliate. The evidence does not disclose any provocation to justify this attack. The General Counsel alludes to certain conversa- tions which support the contention that there had been friction between Land and White. Such may have been the case, but the evidence does not persuade me that such animosity motivated White in taking the action that was subsequently taken. In these circumstances the Union was privileged to take disciplinary action against Land and it did so by, inter alia, suspending him for 4-1/2 months. However, in evaluating this action, one must keep in mind that suspension from the Union in this closed-shop referral operation has the effect of depriving nonmembers of employment and this the Union is not privileged to do, thus the Union acted unlawfully inasmuch as the suspension resulted in depriv- ing him of employment by referral, in violation of Section 8(bX )(IX)(A) and (2). But Caldwell contends and the Union contends that the failure to refer Land to Sealand was not discriminatory since it was done pursuant to demands made by Sealand, a customer of Caldwell. It is clear from the record herein that Grissom did not want Land to work on Sealand vessels. Grissom had 522 CLERKS AND CHECKERS LOCAL NO. 1593 accepted White's version of the incident upon checking with his marine manager on the day of the incident and on that same day he told Hiers he did not want Land working for Sealand. When he found out on July 11 that Land was still working on Sealand vessels he called Hiers to express in certain terms that Land was not to be employed on Sealand vessels. By letter dated the same day, Hiers so advised the Union that he was not to be dispatched to Sealand vessels until further notice because of the June 25 incident. The Union received this letter on July 13, some 2 days before the executive board again suspended Land on the evening of July 15. In these circumstances I conclude that the decision not to employ Land was made by Caldwell for economic considerations, i.e. at Sealand's request because it feared the loss of Sealand's business if it did not comply. In these circumstances, I conclude that the 8(a)(3) allegation of the complaint against Caldwell has not been established. Further, I conclude that this decision preceded Land's suspension by the Union and in effect superseded the suspension. This, however, does not absolve the Union of any illegality since its suspension of Land in a closed-shop referral setup violates the Act despite the fact that he would not have been employed anyway pursuant to Caldwell's request. However, it does, in my opinion, affect the remedy as set forth more fully below. In addition, the action of the executive board in suspending Land deprived him as a nonmember of employment anywhere under the referral system then in effect. Accordingly, to the extent that he may have been denied employment at employers other than Sealand, the Union has discriminated in referral and I so find. As to the 8(bX2) allegations, it is clear from the record that at the time of the July 25 incident it was the decision of the executive board not to refer Land to any job. This is supported by the referral sheet in evidence. These instruc- tions were given to the dispatcher obviously for the purpose of seeing that he did not refer Land to any jobs. By such action, the Union was causing discrimination pro- scribed by Section 8(bX2) of the Act. The complaint also alleges that White called Hiers and told him that Land would not be dispatched to any Caldwell vessels and that, while Caldwell could hire him outside the Union, White would not be responsible for what happened. It is a valid interpretation of these remarks, in their total context, to conclude that they were intended to induce Caldwell not to hire Land and hence violate Section 8(bX2) of the Act. As to the allegation that White told Grissom that he would not be responsible if anything happened on the pier of Sealand if Sealand continued to employ Land, there is no probative evidence in the record to support this allegation, particularly where Grissom denied that any such statement was made and 1 shall recommend that this allegation be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Union has engaged in and is engaging in certain unfair labor practices, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The existing referral operation, both as written and practiced, is illegal. Obviously, any appropriate remedy must include provisions for the disestablishment of the present system. The General Counsel contends that the remedy should include provisions for the Union to be "compelled to establish a nondiscriminatory exclusive hiring arrangement." However, such a remedy contem- plates the continued existence of an exclusive referral system. The parties may not want this. They may want to revert to the pre-1971 practice with no referral system at all. I deem it sufficient to conclude that the present referral system violates the Act and to provide an appropriate cease-and-desist order. It is not my function to compel the parties either to establish a referral system or to instruct them as to what features it must include to make it legal. However, there is some merit to the General Counsel's legal contention. I have concluded that the present system is illegal because seniority, which is essentially the same as priority in referral, requires union membership as a condition precedent. It is obvious that a new referral system, which requires, as a basis for referral, years of seniority acquired under the illegal system, will likewise be illegal. I cannot assume that the parties will conduct themselves illegally in establishing new referral procedures. If the new referral procedures appear to be based on illegal seniority premises, appropriate action should be taken at that time. With respect to Beckham, it is true that Beckham was not available to work every day. While this may normally be a valid criteria in making selections for referral it may not be assigned by the Union to deny relief to Beckham. In circumstances where the referral system is and has been illegal, the Union may not take what may otherwise be a legitimate referral consideration and apply it to a single individual to absolve itself of liability. As to Land, I have concluded that it was the legitimate action of the Employer, because of Land's misconduct on the Sealand dock, which caused the failure to employ Land. Even if he had not been suspended from the Union, Land would not have been employed by Sealand. In these circumstances, even though the Union was in violation of the Act in suspending Land from membership, remedial economic relief as to Land is inappropriate, except to the extent that he may have been denied referrals to employers other than Sealand during the period of his suspension from July 5 through November 9. Since the record shows that the original suspension by the Union from June 26 to July 4 was the only reason he was not referred during that period of time, the Union will, of course, be required to 523 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make him whole for losses suffered during that period of which conditioned priority in referral upon union member- time. Upon the basis of the foregoing findings and conclu- sions, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW I. Caldwell Shipping Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union has violated Section 8(b)(1)(A) of the Act by maintaining in effect an illegal referral system ship. 4. Respondent Union has violated Section 8(bXIXA) and 8(bX2) of the Act by refusing to refer Howard Beckham and Jack Land because they were not members of Respondent Union. 5. Respondent Union violated Section 8(bX2) of the Act by telling the Union dispatcher not to refer Jack Land to employment under the referral system then in effect and by telling Caldwell that Land would not be dispatched to employment with Caldwell and that, if he were hired outside existing referral procedures, the Union would not be responsible for the consequences. [Recommended Order omitted from publication.]