Pacific Maritime Association

PACIFIC MARITIME ASSOCIATION Pacific Maritime Association and Checkers, Supercar- goes & Supervisors Association of the State of Washington, Local 52, International Longshore- men's and Warehousemen's Union Checkers, Supercargoes & Supervisors Association of the State of Washington, Local 52, International Longshoremen's and Warehousemen's Union and Patricia K. Teare. Cases 19-CA-5667 and 19-CB-1813 March 8, 1974 DECISION AND ORDER On May 22, 1973, Administrative Law Judge James S. Jenson issued the attached Decision in this proceeding. Thereafter, the Respondents, Pacific Maritime Association, herein PMA, and Checkers, Supercargoes & Supervisors Association of the State of Washington, Local 52, International Longshore- men's and Warehousemen's Union, herein Local 52, filed exceptions and briefs. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondents, Pacific Maritime Association, its officers, agents, successors, and assigns, and Checkers, Supercargoes & Supervisors Association of the State of Washington, Local 52, International Longshoremen's and Warehousemen's Union, Seattle, Washington, its officers, agents, and representatives, shall take the action set forth in said recommended Order. MEMBER FANNING, concurring: I concur in the result for reasons stated in William F. Murphy, 204 NLRB No. 112, and my separate opinion in W. J. Siebenoller Paint Co., 205 NLRB No. 110. I do not adopt the rationale of the Miranda ' The Respondents have excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Miranda Fuel Company, Inc, 140 NLRB 181 , enforcement denied 326 F.2d 172 (C.A 2, 1963); Houston Maritime Association, 168 NLRB 615, enforcement denied on other grounds 426 F.2d 548 (C.A 5, 1970), Galveston Maritime Association, Inc, 148 NLRB 897, Independent Metal Workers 209 NLRB No. 88 519 decision for reasons stated in my concurring opinion in General Truck Drivers, Chauffeurs and Helpers Union, Local No. 692 (Great Western Unifreight System), 209 NLRB No. 52. MEMBER JENKINS, concurring: I agree with the findings and the conclusions of the majority of my colleagues that the conduct of the Respondents in refusing to permit the women in question to use the facilities of the dispatch hall because of their sex was based on irrelevant, invidious, and unfair considerations violative of the Board's Miranda doctrine.2 However, as discussed below, I do not rely solely on the rationale of Miranda. In my opinion the conduct involved herein clearly shows a nexus between the discriminatory conduct and interference with and restraint of employees in the exercise of rights protected under the Act.3 The Union by denying the women the use of the dispatch hall precluded them from receiving work referrals. By such conduct the Union demonstrated in no uncertain terms its control over employment and its power to affect the livelihood of prospective and other employees. The necessary effect of the Union's actions was to encourage union membership on the part of all employees.4 The Union's power was particularly emphasized here since there was not only no job-related basis for the discrimination against women, but under the collective-bargaining agree- ment the Union was obligated to operate the dispatch hall without favoritism or discrimination. Similarly, I find that the Union by its disparate treatment of women tended to discourage the membership of the women involved in the Union.. By not permitting women free and open access to the dispatch hall the women were precluded not only from working as untested casuals, but from ever obtaining the experience of being placed into a higher priority job category which could eventually result in their membership in the Union. Business Agent Palmer admitted in his testimony that motiva- tion for his expelling the women from the dispatch hall under threat of police action was to prevent them from engaging in concerted activity to protest the Union's closed employment policies. Accordingly, I find that the Union by thus denying Union, Local 1 (Hughes Tool Co), 147 NLRB 1573 Cf. Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers [Goodyear Tire & Rubber Co I v N L R B, 368 F 2d 12 (C.A 5, 1966), cert denied 389 U.S. 837 (1967), Vaca v Sipes, 386 U.S. 171 See also Airborne Freight Corporation of Delaware, 199 NLRB 994, International Brotherhood of Painters and Allied Trades, Local Union 1066, AFL-CIO (W J Siebenoller Paint Company), 205 NLRB No 110 3 Cf. Jubilee Manufacturing Company, 202 NLRB 272 4 International Union of Operating Engineers, Local 18, AFL-CIO (William P Murphy), 204 NLRB No 112 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the women the use of the dispatch facilities and employment as checkers, and by causing PMA and its member companies to discriminate against the women, further interfered with employees' and prospective employees' Section 7 rights in violation of Section 8(b)(1)(A) and (2); and that the PMA, by participating in such action, violated Section 8(a)(1) and (3) of the Act. DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge: This matter was heard before me in Seattle, Washington, on January 4 and 5, 1973. The consolidated complaint, which issued on August 16, 1972, pursuant to separate charges filed on February 22, 1972, alleges the Company and Union, in the course of operating a jointly administered hiring hall, through their joint agent, refused to register and dispatch for employment six women because of the "irrelevant, invidious, and unfair consideration" of their sex. By maintaining such a policy, the Union is alleged to have violated Section 8(b)(1)(A) and (2), and the PMA to have violated Section 8(a)(1) and (3) of the Act. The Union filed an answer denying that the jointly administered hinng hall is an "exclusive hiring hall," and further denying the commission of any unfair labor practices. While admitting the PMA and Union operated a jointly administered dispatch hall, the PMA's answer denies that employees are dispatched by the Union, that Edward Palmer is an agent of PMA, and the commission of any unfair labor practices. The employer further contends, without recitation of authority, that the Board is not the appropriate Govern- ment agency to entertain a case alleging such discrimina- tion. All parties were afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs. Briefs were filed by each Respondent and the General Counsel and have been duly considered. Upon the entire record in the case and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE PACIFIC MARITIME ASSOCIATION Pacific Maritime Association is a membership corpora- tion whose employer-members include shipowners, ship operators, ship charterers, and employes engaged in stevedoring or terminal services. During the past year, PMA, through its various employer-members, performed stevedoring services in excess of $500,000 for shipping companies at ports located outside the State of Washing- ton. Upon these facts, and the admissions of the Respon- dents, it is found that at all times material herein PMA has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The parties admit, and I find, that Local 52 and the International with which it is affiliated are, and at all times material herein have been, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The PMA, on behalf of its employer-members, and the International, on behalf of its locals, including Local 52, have been parties to collective-bargaining agreements for an undisclosed number of years, the most recent agreement having been reached on February 10, 1972, which agreement modified in certain respects not material herein the 1966-71 agreement between the parties. The 1966-71 agreement, entitled "Pacific Coast Clerks' Contract Docu- ment," provides for the establishment of a Joint Port Labor Relations Committee for each port affected by the agreement, each of said committees consisting of three or more representatives designated by the Union, and three or more representatives designated by the PMA, each side having equal voting power. The agreement provides, in section 17, that the Joint Port Labor Relations Committee shall maintain and operate the dispatching hall, exercise control of the registered list of the ports, decide questions regarding the dispatching of men, investigate and adjudi- cate grievances and disputes, investigate and adjudicate any complaint against any clerk whose conduct on the job, or in the dispatching hall, causes disruption or frustrates and/or violates the provisions of the working or dispatch- ing rules or of the agreement, and carry out such other functions assigned directly or through the Joint Coast Labor Relations Committee. Section 8 of the agreement, entitled "Dispatching, Registration and Preference," pro- vides that the dispatching of all clerks shall be through halls maintained and operated by the Joint Port Labor Relations Committee and that clerks not on the registered list shall not be dispatched from the hall or employed by any employer while there is any man on the registered list who is qualified, ready, and willing to work. The contract provides that first preference of employment and dispatch shall be given to fully registered clerks, that second preference shall be given to the limited registered clerks, and that if all available registered and limited registered clerks are dispatched, then casuals may be dispatched. The agreement further provides that personnel of each hall shall be determined and appointed by the Joint Labor Relations Committee of the port, with the exception of the dispatcher who is selected by the Union through elections. As required by the contract, Local 52 and the PMA, through the Joint Port Labor Relations Committee, maintained a central dispatching hall for the referral of clerks. In February 1972,1 the dispatching hall and the Local 52 offices were located at Second Avenue and Cherry in Seattle, in premises leased to Local 52. Expenses incident to operating the hiring hall, including the dispatcher's salary, were shared equally by Local 52 and PMA. The premises involved herein consisted of an office I All dates herein are in 1972 unless otherwise noted PACIFIC MARITIME ASSOCIATION 521 occupied by Edward J. Palmer, the secretary-treasurer and business agent of Local 52, a dispatcher's office,2 and a dispatch hall. The door leading from the building hallway into the Local 52 office bore the seal of the ILWU and contained the legend "Supercargoes, supervisors and checkers, State of Washington. Members Only." A door connected the Local 52 office to the dispatcher's office, and another door led from the dispatcher's office into the dispatch hall. A sliding window between the dispatcher's office and the dispatch hall was used for dispatching purposes. There was also a door leading from the hallway into the dispatch hall which was used by those seeking dispatch. The sign on that door identified it as either the "Hiring Hall" or "Dispatch Hall." Kracke's duties as dispatcher were to receive orders or requests from employers and to dispatch men to jobs. As business agent, it was Palmer's duty to enforce the collective-bargaining agreement and to handle grievances and disputes arising thereunder at the first level. Palmer testified that he was also responsible for keeping order in "the hall." As secretary-treasurer, Palmer was responsible for the Union's funds and was a cosigner with the PMA on all funds disbursed through the Joint Port Labor Relations Committee insofar as they related to the operation of the dispatching hall. In February, and at least until the agreement which was reached on February 10 went into effect, dispatching of checkers or clerks was made in the following descending order of preference:3 (1) "A " list or "registered book men," who are members of Local 52-they need not be in the hall and were dispatched by telephone; (2) "B" list or "partially registered men," who were not members of Local 52-they had to be present in the hall to be dispatched; (3) Longshore Hall -which had 40 or 50 qualified checkers; 4 (4) Tested casuals -those casuals present in the hall who had taken and passed a qualifying test; (5) Untested casuals who had worked out of the hall and whose names had been added to a list kept by the dispatcher; (6) Untested casuals who had never worked out of the hall; (7) If the dispatch hall was cleared of all casuals, the dispatcher next called ILWU Local 9, and after that the Teamsters or some other labor organization whose members were on strike. The parties stipulated that a strike which had affected West Coast shipping ended in February and employees returned to work on February 21. On the morning of February 21,5 Teare, DiCaprio, and Baughman, all unemployed women, went to the dispatch- ing hall for the purpose of seeking employments They arrived at the hall about 7 a.m. and, through talking with men in the hallway outside the dispatch hall, learned that 2 On February 21 and 22, Dennis Kracke was the dispatcher 3 Based upon the credited testimony of dispatcher Kracke S Pursuant to the ILWU/PMA Pay Guarantee Plan Rules for Long- shoremen and Clerks which was signed on March 2, available registered longshoremen are to be offered work before any casual clerks are employed. The General Counsel does not contend that agreement is unlawful. 5 Unless otherwise stated, the following findings of fact are based upon a composite of the mutually corroborative testimony of Patricia K Teare, the Charging Party, Margaret Bennett, Margaret Baughman, Elisa DiCaprio, Barbara Campbell, and Kathleen Naughton, the six alleged discnminatees, all of whom impressed me as honest and reliable witnesses who were making a sincere effort to tell the truth Palmer, to the contrary, when he testified about the events which took place on February 22, was not an dispatching for that day had already been accomplished and that they would have to return the following morning if they wanted work. B. February 22 Dispatch Hall Incident and PMA Conference At approximately 6:15 on the morning of February 22, Teare, DiCaprio, Baughman, Bennett, Campbell, and Naughton arrived at the dispatch hall prior to its opening. About 6:30, Kracke arrived and unlocked the door to the dispatch hall. The six women entered and either took seats or stood around talking to the men who had also entered seeking dispatch. At one point, DiCaprio went up to the dispatch window for the purpose of obtaining information. She testified that she observed Kracke going in and out of the dispatch office but was unable to talk to him after waiting approximately 5 minutes. A few minutes later Palmer entered the dispatching hall and announced in a loud voice that the women were wasting their time since they would "never get jobs here." He then directed them to come into his office. After entering his office, Palmer reclined in a leather chair while the women remained standing across the room.7 Teare's testimony regarding what transpired thereafter, which is corroborated in material part by the other women, is as follows: The first thing he says, "Well, you all sure look like real longshoremen." And then he made a series of other statements and was speaking in a loud voice, and was shaking. His face was red, and he repeated himself to a certain extent. He said, "You girls will never work here." He said that there are no jobs on the waterfront on the West Coast for women. He said, "We don't hire women on the waterfront." He said that federal safety regulations prevented us from working on the water- front. And he said there had been no women working on the waterfront for X number of years, and so far as this union is concerned there never will be for another X number of years.8 Q. Well, did you or any of the women there respond to these statements? A. Yes, I remember Barbara Campbell said in a moderate voice, she said, "That sounds like discrirruna- tion to me." And he said in response to that, "Call it what you like." And then I said, some of the women talked amongst themselves, and I said to Mr. Palmer, "I want you to know we're here not as a form of protest but because we're seeking jobs." And he said in a more moderate tone, "I know that, but there are nojobs for you here." impressive witness Accordingly, I have rejected his testimony whenever it conflicts with the testimony of the women. 6 Baughman had observed a notice posted on the bulletin board at the University YWCA regarding the possibility of women obtaining work on the waterfront as dock checkers. She had contacted the individual who had posted the notice, an unnamed dock checker, who had informed her what the work entailed and that women could do the work and explained the dispatching procedure r The six women had arrived at the dispatch hall in work clothing with bag lunches "ready to go to work " B Palmer used the expression "X number of men" when testifying to the number of black men on the "casual" list 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And then I believe it was Margaret Baughman who asked-let's see, asked about the federal safety regula- tions and what they were. And he said he couldn't -well, I remember I was thinking there might be some but he said he didn't have to give them to us. And if we wanted them we could go to the Pacific Maritime Association to get them and he gave us that address. And then somebody asked him, I don't remember, but one of the women asked, let's see-well, I don't remember what the question was that precipitated it was, but I remember Peggy telling- Q. Peggy who? A. Peggy Bennett telling Mr. Palmer that she knew there were women working or that had jobs recently with the ship's scalers union. She knew five of them that had jobs. And he said, "I don't care." And he told us we had to take a test, that there was a test you had to take to be a checker, and Peggy asked him when we could take it. And he said, "Never." And he said this very abruptly and curtly. Then later one of the women asked the question again. He said, "You have no right to take the test." And he said that also abruptly, like that. Let's see if I can remember anything else we asked. I don't remember anything else, any of the rest of the conversation, but then the way the interview or discussion ended was then Mr. Palmer jumped up and said, "Well, you girls are just wasting your time, and get out." So, at that point I felt that if I didn't go I'd be thrown out, and I turned to leave and the other women did too. And we went out of the office with Mr. Palmer striding behind us and then he went ahead to the door of the dispatching hall. And then I remember standing at the corner where the corridor turns and thinking, well, I'd better go. Then Peggy said she had to get her coat. So, I was waiting also to see what was going to happen, and she went back into the hall to get her coat. Two of the women started ahead of me to leave. I think it was Lisa CiCaprio and Margaret Baughman, and the other two were on the other side of me. And I overheard Mr. Palmer standing at the door of the dispatch hall and saying, "Everyone in this hall who hasn't worked before the strike get out or I'll call the police." And at that point I felt I'd better go, and I left and the others left, and we left the premises. From the dispatching hall the women went to Bake- man's, a nearby restaurant, where they went over notes which Bennett had made during the morning. From there they went to a law office located in the vicinity where one of the women typed up the notes. At approximately 10:30, the women, except for Campbell, went to the PMA offices. Palmer had already called Carl Weber, PMA's area manager, and informed him, according to Weber, that there had been ". . . some ladies in the hall and he had some discussions with them, and apparently there was some excited conversation between both sides ...."9 Teare's testimony regarding what transpired at the PMA offices, and which I credit for reasons set forth earlier, is as follows: fo A. Well, Mr. Weber and Mr. Shields did all the talking and Mr. Weber perhaps spoke a little more. Mr. McMillan took notes and answered a few questions that were directed to him. Q. Then did you and all the others participate in this conversation, is that my understanding? A. Yes. Q. Did you explain, or did you tell-or the gentlemen there, did you tell them what occurred that morning? A. Yes. Cathy Naughton told them what occurred and asked them for the federal safety regulations. Q. What did she tell them, if you recall? A. She told them we had been down that morning to Local 52 to seek work, and Mr. Palmer had told us we could not work there, and it was because of the federal safety regulations which prevented women from working on the waterfront, and if we wanted to see those rules we should go and ask for them at the PMA office. Q. Did you then ask about these safety regulations? A. That is right. Q. And what response did you receive to, that question? A. I think it was Mr. Weber, either Mr. Weber or Mr. Shields told us as far as he knew there weren't any regulations to that effect saying that women couldn't work in checker jobs on the waterfront, but he didn't really know. And that they didn't have any in that office, and they didn't keep such regulations in their office. And in addition told us, I believe he told us we could write to San Francisco-now, that may have been for the other booklet that was mentioned this morning, I'm not sure. Q. So, there was a discussion, then, of safety regulations? A. Yes. Q. Now, in addition to that what else, what further went on in the discussion there? A. I think Margaret asked if they knew about the test, did we have to be tested before we could get the checker's jobs. And they said, I think it was Mr. Weber, but one or the other said you had to qualify for the checker's jobs, and that in order to qualify you had to take the test, i.e., read, write and do some mathematics. When we asked about the mathematics, one of us asked, I don't remember which one, and one of the two men there said it involved cubing and commented school teachers had failed the test. And we said by 9 Palmer testified that he had called Weber and informed him that " the conversation between the women and three PMA officials , yet neither we had some girls up there seeking work and they were coming up to he nor Shields were called as witnesses to either corroborate or clarify talk to him " Weber's testimony which was, in many respects , vague and indefinite 10 Weber's testimony was neither candid nor persuasive in his account of Accordingly, I have rejected his testimony whenever it conflicts with the the events which occurred at the PMA offices . McMillan made notes during testimony of the women PACIFIC MARITIME ASSOCIATION cubing, well, my understanding of cubing was multiply- ing the number three times by itself, and he said, "Yes." Q. Then there was a discussion of the testing procedures, is that right? A. Yes. Q. What, if any, discussion was there regarding PMA's position about a woman working on the waterfront? A. I asked them how they felt- Q. You did? A. Yes, about women getting jobs, and one of the two men said that PMA didn't have a position on the question of women working on the waterfront, that in order to determine a position they would have to meet and discuss the matter. And then they said, one of them said we had come at a bad time, that they were involved with the contract, they're negotiating a new contract with the union and they were quite busy and it would be months before they could meet to discuss the question . And I think it was Mr. Weber, he said one problem that would exist would be they didn't have separate facilities for women. And I remember Cathy Naughton said to her knowledge that was no longer a just reason for denying work to women. Let's see. I think it was Lisa- Q. Lisa who? A. DiCaprio, Lisa DiCaprio, excuse me, asked if they thought Mr. Palmer had been m the right that morning in denying us further access to the dispatch hall. They said that you did have to be invited into the dispatch hall, and they said sometimes people are referred by unemployment or by other unions. That in times of extreme duress or hardship, or some such words as that, that they did take other people who walked in. Then they said, one of them said, that people who teed to come off-that tried to come off First Avenue, I remember that expression-that's all I remember in response to that question. Q. Well, what, if any, discussion was there about the work itself, or was there any? A. Oh.- Q. The checker's work. A. -well, I remember Mr. Weber said, he was describing that the PMA would have to meet to determine their position on the question of women working, and they said not speaking for the PMA, but speaking personally he wouldn't want his wife or daughter to work on the docks, that it wasn't a very uplifting work for a woman . And I said myself I had done waitressing work and I didn't consider it very uplifting either, and it paid a third of what I would get if I were doing checking work. I think Peggy Bennett also said she had done secretarial work and she thought similarly it wasn't very uplifting and the pay wasn' t as good. And Lisa DiCaprio asked for applications and they gave them to us. They gave us two copies each and said to send one to their office and send one to the union hall. Then they said, one of the two men, Mr. Weber, Mr. Shields, also said in three months when the new 523 contract was in effect there would no longer be much casual labor at all, and that the hall , in effect, would be closed. One of us, I think Lisa because she was talking at that time, said, "Is it closed now?" And one of them said, "No." Then they waited until we were through asking our questions. Then at that point the conference broke up and we left the premises then. Palmer's testimony was to the effect that the six women had caused a disturbance in the dispatch hall, and that it was pursuant to his responsibility to maintain order in the dispatch hall that he requested them to come into his office where they created a further disturbance leading to his request that they leave the premises. His testimony, however, was confusing, contradictory, and unconvincing. Thus, he testified that his first knowledge that the women were in the dispatch hall the morning of February 22 was when someone, whom he could not identify, came to his office and told him that ". . . there were some girls in the hall who are bugging them by writing down notes and asking questions . . ."; that they "seemed to be interfering with dispatch procedures"; that shortly thereafter he received two telephone calls, the first from an unidentified casual or "B" man, and the other from the Longshoremen's union. The unidentified casual or "B" man purportedly said that "girls are in the hall raising all kinds of questions and disturbing the people." He testified further on direct examination that the unidentified individual "had been down in the restaurant calling me , or some place else, and he said the girls were talking about going up and getting jobs and causing a disturbance in the hall or something and he wanted to know what the hell I was going to do about it." On cross-examination, Palmer testified that the individual had overheard the women talking in Bakeman's Restaurant. The evidence established , however, that the women did not go to Bakeman's Restaurant until after they left Palmer's office. Accordingly, I conclude and find that Palmer's testimony regarding this purported conversa- tion was fabricated. Regarding the call from the Longshoremen 's union, again from an unidentified individual, he testified that the caller had "said they heard the girls were in the hall and I had better damn well please take care of the longshoremen first." However, on cross-examination, he acknowledged that the call had nothing to do with the women. I believe it is more likely that he learned of the presence of the women in the dispatching hall from Kracke who had been in and out of the dispatcher's office which connects with Palmer's office. Kracke testified he had observed the women in the dispatching hall talking to the men and taking notes, but that he didn't have to raise his voice or ask that the noise be "toned down." In fact, Kracke failed to testify to any disturbance created or caused by the women . Moreover, Palmer admitted that Kracke had not told him that the women were interfering with his dispatching duties. After learning of the six women 's presence, Palmer testified he went to the doorway to the dispatching hall and asked "what the hell is going on," and "invited" them into his office . He testified he told the women their chances of getting work at that time were "nill," because under the new contract, the longshoremen would get all of the casual 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work, and suggested they contact the PMA office and the Joint Port Labor Relations Committee which would "tell them if they are available for tests." He further testified he told the women ". . . to my knowledge, we had never hired women clerks . . . I told them they couldn't work on the waterfront. I didn't say never. I said the question was nill at this time." He contended they had informed him they wanted to apply for checkers' work, but that after he informed them of the nature of the work, "they stated they wanted dock work only or office work," and he replied that Local 52 didn't have "office jurisdiction." On cross- examination, he testified "I told them they couldn't go to work . . . the way they came on strong, I told them there was no chance for them to go to work at that time." Moreover, his attempt to explain the pretrial statement given a Board agent that "Of course, there are some kinds of people we never send out like winos, long-haired, physically handicapped, barefoot, and girls" was also unconvincing. Contending he was "apparently" thinking about safety in connection with the girls, he alluded to high heels and bare feet and a regulation regarding proper footwear. He admitted, however, that he had not observed their footwear on February 22, and he had earlier testified that "they were dressed in rough clothing, and they were presentable, but they were dressed in rough clothing." Moreover, no Federal, state, or other regulation was produced which could be used as a basis for denying employment to the six women. It is clear to me from Palmer's testimony that he was upset with the prospect of having women employed as checkers on the waterfront, and it was for this reason that he called them out of the dispatching hall and eventually ejected them from the premises under the threat of calling the police. Weber testified that on February 22, he, along with Shields, assistant area manager for PMA, and McMillan, labor relations assistant, met with the five women at the PMA office. While Weber testified that he couldn't say whether Palmer had called him before or after the meeting, I am satisfied that the Palmer call was received prior to the arrival of the young women and that Weber had advance knowledge of the reason they were there, which accounts for the fact that Shields and McMillan also met with them and that McMillan took notes during the conversation. Weber testified that the women advised the three of them that they had talked to Palmer and that Palmer had alluded to some rules which prohibited women from working on the waterfront which they asked to see; that he informed them he was not aware of such rules; that the women asked how they could become registered; that he explained the procedures as far as casuals working on the waterfront, and the fact that the Joint Port Labor Relations Committee controlled registration; that before they could be sent out as casuals, they had to pass a test; that at their request he gave them applications for employment forms which are used by the Joint Port Labor Relations Committee in deciding who is qualified to take the test. At one point he testified that he didn't know if he told the women they had to be invited into the dispatch hall, and at another point denied he had told them that no one could come into the hall unless invited . He admitted that the women "may have asked him the position of the PMA regarding women working on the waterfront, and if they did ... I would have to respond we have no position against not employing women ," and "I know no policy that PMA has with respect to employment of women on the waterfront." He also denied that the women had asked if Palmer had the right to "kick them out" of the dispatching hall. He acknowledged , however, that he expressed his personal view that he didn't feel that ".. . working on the waterfront was the place where I would want my daughter to be working because it 's a pretty rough and tumble place to work. And I wouldn't want them subject to those indignities ." He further acknowledged that Shields stated that one of the problems which was "expressed" to the women was that " . . . there are state safety requirements under the longshore and dock workers' provisions of the state safety code that state . . . there has to be separate facilities, lavatory facilities, marked male and female." While he also testified that "Mr. Palmer has no right with respect to the dispatch hall. It is under the control of the joint dispatcher . He exercises no control over the dispatcher," there was no contention or evidence that the women were so advised. Moreover, Palmer testified that one of his duties as business agent was to keep order in the hall. C. Post-February 22 Events None of the women went back to the dispatch hall until after the following letter, dated October 27, was sent to each by the Seattle Clerks Joint Port Labor Relations Committee: ii The purpose of this letter is to advise you of the position of the Seattle Clerks Joint Port Labor Relations Committee in regard to the dispatching of non-registered clerks and it should in no way be construed as an admission that the dispatching has ever been conducted in an improper manner. Dispatching of casual clerks is done after all registered employees have been given an opportunity for dispatch. If job vacancies continue to exist, the dispatcher refers to a list of approximately 40 tested casuals and dispatches those persons on the list who are present in the dispatch hall on a rotating basis. If job vacancies continue to exist after the list of tested casuals has been exhausted, the dispatcher then dispatches from among those other persons who are present in the dispatch hall. If no remaining persons are in the hall, the dispatcher telephones the Washington State Casual Labor Office and other sources. In other words, preference among casuals is based upon whether an applicant is present in the dispatch hall when jobs become available. This is to advise you that you are free to enter the dispatch hall in order to make yourself available for clerk's work. If you choose to do so, you should report only to the dispatcher and give your name to him. The It The women testified that they didn't return after February 22 because had ejected them from the hall , and PMA officials had informed them they Palmer had told them that women would never work on the waterfront , he had to be invited into the hall. PACIFIC MARITIME ASSOCIATION dispatcher is the only person authorized to send prospective clerks out to the job. If any other person interferes with your right to be in the dispatch hall or interferes with you in any way, you should report such conduct to the undersigned or to Pacific Maritime Association. Corrective measures will be taken if any acts of interference occur. Shortly after Thanksgiving, several of the women went to the Second Avenue and Cherry location for the purpose of registering for work and discovered the dispatch hall and Local 52 office had been moved . A couple of days later Teare, Baughman, Campbell, Bennett, and another wom- an, Janet Babcock , went to the new location for the purpose of registering for work . Teare testified that Palmer and another individual were seated in the dispatcher's office; that she informed them that she had received a letter and was there to apply for work as a checker; that Palmer responded that he knew why she was there and that she should talk to the other man; that the five women left their names with the dispatcher ; that Palmer told them there was no work, a fact confirmed by men sitting in the dispatching hall;12 that they were told to take a seat; and that they left without waiting because it seemed clear in view of what had been said that there was no reason to stay. D. Contentions of the Parties The General Counsel contends that Local 52, through its agent. Palmer, violated its duty of fair representation by discriminatorily preventing the six women, solely on the consideration of their sex, from utilizing the jointly administered hiring facilities maintained by Local 52 and PMA in violation of Section 8(b)(1)(A) and (2) of the Act; and that the PMA, by participating in union conduct which violated the duty of fair representation, also violated Section 8(a)(1) and (3) of the Act. In its brief, Local 52 points out that the basis of the violation as alleged in the complaint is that Palmer refused to register or dispatch the six women, and contends there can be no violation since Palmer lacked any authority to register or dispatch employees; that his remarks do not evidence discrimina- tion on the basis of sex; that Kracke was the only one authorized to register and dispatch employees; that the women never requested that Kracke register or dispatch them; and that if there had been enough work and the women had stayed around the hall long enough, Kracke would in fact have dispatched them. PMA contends the complaint should be dismissed on three grounds: (1) Under the doctrine of primary jurisdiction, the Board is not the appropriate government agency to entertain a case alleging sex discrimination; (2) Palmer is not an agent of PMA; and (3) PMA did not acquiesce in any alleged unlawful activity, including the maintenance of a discrimi- natory dispatch procedure, and did not itself refuse to register or dispatch the women on the irrelevant, invidious, and unfair consideration of their sex. 12 Palmer did not deny that he was in the dispatcher's office or that he told the women there was no work 13 There was no evidence that the job of checker requires any physical or Analysis 525 Dealing first with the contention that the Board is not the appropriate Government agency to entertain a case alleging sex discrimination, I can only assume, in the absence of any recitation of authority, that the PMA contends such a proceeding should be processed only under Title VII of the Civil Rights Act. The Board has held, with court approval, that the Board's powers and duties are in no way limited by Title VII. See, for example, Local 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO (The Business League of Gadsden), 150 NLRB 312, enfd. 368 F.2d 12 (C.A. 5, 1966). Accordingly, that contention is rejected as lacking in merit. Regarding the merits, upon consideration of the entire record, I am convinced that Palmer was upset with the prospect of having women dispatched as checkers, and that he therefore called the six women out of the dispatch hall and into his office and eventually ordered them off the premises under threat of calling the police, solely upon the consideration of their sex; and that the three PMA officials, not only knew of, acquiesced in, and condoned Palmer's conduct, but gave it credence by advising the women, albeit falsely, that they had to be "invited" into the dispatch hall and also take a test in order to qualify for a checker's job, both assertions obviously designed to discourage them from further pursuing employment through the joint dispatch hall.13 Local 52 contends, however, that Kracke, not Palmer, was the dispatcher, and that Palmer lacked authority to register and dispatch employees. This contention, however, ignores the fact that Palmer testified that it was his "duty" to maintain discipline in the dispatching hall, a fact not refuted by either Respondent, and it was under the guise of maintain- ing discipline that the women were denied access to the dispatching facilities. Thus, having created his authority, the joint principals must accept the responsibility if it is wrongly used. As an individual clothed with ostensible authority to eject individuals from the hall, PMA and Local 52 were bound by Palmer's acts done within the apparent scope of his authority. My finding herein is not in conflict with the cases cited in the PMA's brief, which stand mainly for the proposition that an employer will not be responsible for the discriminatory acts of a union except where he knows, or reasonably should have known, of the discriminatory acts. As I have found, the PMA was well aware of the discrimination and acted in a manner supporting it. But, regardless of the extent of the knowl- edge, ". . . an employer may not avoid liability for violations of the Act by the hiring hall when he has turned over to it the task of supplying of the men to be employed." Morrison-Knudsen Company, Inc. v. N.L.R.B., 275 F.2d 914, 917 (C.A. 2, 1960); N. L R. B. v. Houston Maritime Associa- tion, Inc., 337 F.2d 333 (C.A. 5, 1964); N.LR.B. v. Southern Stevedoring & Contracting Co., 332 F.2d 1017, 1019 (C.A. 5, 1964). As Palmer was authorized to maintain discipline within the jointly financed but Union-operated hall, the result should be no different. Having concluded that the mechanical skill or other special qualifications for which women are unsuited. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents denied the six women access to the dispatch- ing facilities because of their sex, a reason which I find, in these circumstances, is u-relevant, invidious, and unfair, the question remains whether such conduct amounts to a violation of the Act. In Miranda Fuel Company, Inc., 140 NLRB 181, enforcement denied 326 F.2d 172 (C.A. 2, 1963), the Board addressed itself to the question of whether Section 7 of the Act gave employees the right to be free from unfair or irrelevant or invidious treatment by their exclusive bar- gaining agent in matters affecting their employment. The Board concluded: This right of employees is a statutory limitation on statutory bargaining representatives, and we conclude that Section 8(b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory capaci- ty, from taking action against any employee upon considerations or classifications which are irrelevant, invidious, or unfair ... To the extent, however, that an employer participates in such union's arbitrary action against an employee, the employer himself violates Section 8(a)(1) of the Act. We further conclude that a statutory bargaining representative and an employer also respectively violate Section 8(b)(2) and 8(a)(3) when, for arbitrary or irrelevant reasons or upon the basis of an unfair classification, the union attempts to cause or does cause an employer to derogate the employment status of an employee. The Board has consistently followed the doctrine that it laid down in its Miranda decision, and in Cargo Handlers, Inc., 159 NLRB 321, applied the doctrine to applicants for referral through the union hall who were not union members.14 While most of the Board cases have involved unfair, irrelevant, and invidious treatment because of race, I can perceive of no logical reason-nor, apparently, did Congress when it enacted Title VII of the Civil Rights Act proscribing discrimination on the basis of race, color, religion, sex, or national origin-for drawing a distinction between discrimination based upon race or sex, especially in the context of this case which arises out of a hiring hall practice, which, I find, is clearly in derogation of the Union's obligation of fair representation in the referral of applicants for employment. Accordingly, I find that the Union, by denying the women the use of the dispatch facilities upon the irrelevant, invidious, and unfair consid- eration of their sex, breached its duty of fair representation in violation of Section 8(b)(1)(A) and (2); and that the PMA, by participating in such action, violated Section 8(a)(1) and (3) of the Act.15 IV. THE EFFECT OF TI-IL UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, 14 It has long been established that applicants for employment are entitled to the protections of the Act Phelps Dodge Corp v. N.L.R B, 313U.S. 177 is Cf. Jubilee Manufacturing Company, 202 NLRB 272 16 1 deem this remedial action necessary in the public's interest and to above, occurring in connection with the operations of PMA described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE RBMEDY Having found that the Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Accordingly, in view of the fact that the violations found herein were based upon the illegal practice of discrimina- tion against women solely because of their sex, I shall recommend that the Respondents add the names of the discriminatees to the untested casual list in the order of seniority, as though their names had been added to said list on February 22, 1972, and dispatch them under the same terms and conditions as applies in the case of male unlisted casuals on said list.16 I further recommend that Respon- dents jointly and severally make whole Patricia K. Teare, Margaret Bennett, Margaret Baughman, Elisa DiCaprio, Barbara Campbell, and Kathleen Naughton for loss of earnings they may have suffered by reason of the discrimination practiced against them . Such earnings shall be computed in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289, and such earnings shall include interest at 6 percent per annum, computed in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, 717-721. CONCLUSIONS OF LAW On the basis of the foregoing findings of fact, and the entire record in this proceeding, I make the following conclusions of law. 1. PMA is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 52 and the International with which it is affiliated are labor organizations within the meaning of Section 2(5) of the Act. 3. Local 52 has restrained and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and in violation of Section 8(b)(1)(A) of the Act. 4. Local 52 has caused, or attempted to cause, Pacific Maritime Association and its member companies, and other employers, to discriminate against employees in violation of Section 8(a)(3) of the Act, and by this action has violated Section 8(b)(2) of the Act. 5. By acquiescing in, and maintaining an illegal hiring arrangement, Pacific Maritime Association has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. The aforesaid unfair labor practices are unfair labor recreate the conditions and relationships that would have been had there been no unfair labor practices of the nature of those found herein. (Consolidated Edison Co of New York, Inc, v N L RB., 305 U.S. 197, 236.) N L R B v Seven-Up Bottling Co of Miami, Inc., 344 U.S. 344, 348-349. PACIFIC MARITIME ASSOCIATION practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 A. Respondent Pacific Maritime Association, Seattle, Washington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining, performing, or enforcing any contract or arrangement with Checkers, Supercargoes & Supervisors Association of the State of Washington, Local 52, International Longshoremen's and Warehousemen's Un- ion, in any manner whereby job referrals or hiring are conditioned on the unlawful basis of sex or union membership. (b) Discriminating against Patricia K. Teare, Margaret Baughman, Margaret Bennett, Elisa DiCaprio, Barbara Campbell, and Kathleen Naughton, because of their sex or lack of union membership. (c) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by the National Labor Relations Act, as amended. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Post at their offices in Seattle, Washington, copies of the attached notice marked "Appendix A." 18 Copies of said notice on forms provided by the Regional Director for Region 19, after being duly signed by the respective Respondent's representatives, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Post at the same places and under the same conditions as set forth in (a) above, as they are forwarded by the Regional Director, copies of the Respondent Local 52's notice marked "Appendix B." (c) Mail signed copies of the attached notice marked "Appendix A" to said Regional Director for posting at the dispatch hall operated by Respondent Union, in places where notices to members and employees and prospective employees are customarily posted. Copies of the notice, to be furnished by said Regional Director, shall be returned forthwith to the Regional Director after they have been signed by an official representative of the Respondent Association for such posting. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent Association has taken to comply herewith. 17 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions and Order, and all objections thereto shall be deemed waived for all purposes 527 B. Respondent Checkers, Supercargoes & Supervisors Association of the State of Washington, Local 52, International Longshoremen's and Warehousemen's Un- ion, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Pacific Maritime Association, and its member companies, or any other employer, to discriminate against employees or prospective employees by refusing to hire them on the unlawful basis of their sex or union membership ; or maintaining, performing or enforcing any contract or arrangement in a manner whereby referrals to available jobs are based on the unlawful basis of sex or union membership. (b) Discriminating against Patricia K. Teare, Margaret Bennett, Margaret Baughman , Elisa DiCaprio, Barbara Campbell, and Kathleen Naughton because of their sex or nonmembership in said Local. (c) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by the National Labor Relations Act, as amended. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Notify, in writing, Patricia K. Teare, Margaret Bennett, Margaret Baughman, Elisa DiCapno, Barbara Campbell, and Kathleen Naughton, that Local 52 will add their names to the untested casual list in the order of seniority as though their names had been added to said list on February 22, 1972, and dispatch them, without discrimination against them, under the same terms and conditions as applies in the case of male untested casuals on said list. (b) Post at its office, dispatch hall, and meeting hall, copies of the attached notice marked "Appendix B." 19 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by an authorized representative of Respondent Union, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and other persons using Respondent Local 52's dispatch hall are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Post at the same places and under the same conditions as set forth in (b) above, as soon as they are forwarded by the Regional Director, copies of the Respondent Association's notice marked "Appendix A." (d) Mail to the Regional Director for Region 19, signed copies of the attached notice marked "Appendix B" for posting by Respondent Pacific Maritime Association at its place of business in Seattle, Washington, in places where notices to employees are customarily posted. Copies of said notice, on forms provided by the Regional Director, after being duly signed by a representative of Respondent Union, shall be forthwith returned to the Regional Director for such posting. 18 In the event that the Board 's Order is enforced by a Judgment of the United States Court of Appeals , the words in the notice reading "Posted by Order 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 " 19 See fn. 18, supra 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. C. The Respondents, Pacific Maritime Association, its officers, agents, successors, and assigns, and Checkers, Supercargoes & Supervisors Association of the State of Washington, Local 52, International Longshoremen's and Warehousemen's Union, its officers, agents, and repre- sentatives, shall take the following action: 1. Notify Patricia K. Teare, Margaret Bennett, Marga- ret Baughman, Elisa DiCaprio, Barbara Campbell and Kathleen Naughton, in writing, that the Respondent Employer and Respondent Union have no objection to their employment or any other employees or applicants for employment, because of their sex or membership or nonmembership in the Respondent Union. 2. Jointly and severally make whole Patricia K. Teare, Margaret Bennett, Margaret Baughman, Elisa DiCapno, Barbara Campbell, and Kathleen Naughton, for any loss of pay they may have suffered because of the discrimina- tion against them, in the manner and to the extent set forth in the section herein entitled "The Remedy." 3. Respondent Pacific Maritime Association and its member companies shall 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 all other records necessary to analyze the amount of backpay due and the rights of employment under the terms of this Order. 4. Respondent Union, Local 52, shall preserve and, upon request, make available to the Board or its agents, for examination and copying, registration for job referral records and any other documents or records or data showing job referrals, hiring, and work assignments of employees, members, and registrants made to the Pacific Maritime Association members, which are necessary to compute and analyze the amount of backpay due and the rights of employment under the terms of this Order. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain, perform, or enforce any contract or arrangement with Checkers, Supercargoes & Supervisors Association of the State of Washington, Local 52, International Longshoremen's and Ware- housemen's Union, in any manner whereby job referrals or hiring are conditioned on the unlawful basis of sex or union membership. WE WILL NOT discriminate against Patricia K. Teare, Margaret Bennett, Margaret Baughman, Elisa DiCaprio, Barbara Campbell, and Kathleen Naughton, and we shall jointly and severally with Checkers, Supercargoes & Supervisors Association of the State of Washington, Local 52, International Longshoremen's and Ware- housemen's Union, make them whole for any loss of pay they may have suffered because of the discrimina- tion against them. PACIFIC MARITIME ASSOCIATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 10th Floor, Republic Building, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-7472. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT CAUSE or attempt to cause Pacific Maritime Association, its member companies, or any other employer, to discriminate against employees or prospective employees by refusing to hire them on the unlawful basis of their sex or union membership; or maintaining, performing or enforcing any contract or arrangement in a manner whereby referrals to available jobs are based or allocated on the unlawful basis of sex or union membership. WE WILL NOTIFY, in writing, Patricia K. Teare, Margaret Bennett,MargaretBaughman, Visa DiCapno, Barbara Campbell, and Kathleen Naughton, that we will add their names to the untested casual list in the order of seniority as though their names had been added to said list on February 22, 1972, and dispatch them without discrimination against them, under the same terms and conditions as applies in the case of male untested casuals on said list , and we shall jointly and severally with Pacific Maritime Association make them whole for any loss of pay they may have suffered because of the discrimination against them. CHECKERS, SUPERCARGOES & SUPERVISORS ASSOCIATION OF THE STATE OF WASHINGTON, LOCAL 52, INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. PACIFIC MARITIME ASSOCIATION 529 Any questions concerning this notice or compliance with Floor, Republic Building, 1511 Third Avenue, Seattle, its provisions may be directed to the Board's Office, 10th Washington 98101, Telephone 206-442-7472. 11