Longshoremen's Local No. 13

952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's and Warehousemen's Union, Local No. 13 (Pacific Maritime Associa- tion) and Henry A. Gatlin and James Phillips International Longshoremen's and Warehousemen's Union, Local No. 13 (Pacific Maritime Associa- tion) and James Phillips International Longshoremen's and Warehousemen's Union, Local No. 13 and Pacific Maritime Associa- tion. Cases 21-CB-3296, 21 -CB-3326, 21-CB-3457, and 21-CB-3494 May 28, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 10, 1970, the National Labor Relations Board issued its Decision and Order in Cases 21-CB-3296 and 21 -CB-3326 (hereinafter Gatlin ), finding that Respondent had engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended.' On July 28 , 1971, the Board issued its Decision and Order in Cases 21-CB-3457 and 21-CB-3494 (here- inafter PMA ), finding that the Union violated Section 8(b)(1)(A), (2), and (3) of the Act.2 On Apnl 19, 1972, the United States Court of Appeals for the Ninth Circuit remanded the Board's Decision in the Gatlin case to the Board for more detailed and comprehensive findings, conclusions, and recommendations in order to clarify its decision with regard to the actual operation of the sponsor- ship program and the effect of the program. Thereafter, because the Decision in the PMA case was based on a record substantially similar to that in the Gatlin case, the Board filed a motion to withdraw its enforcement application in the PMA case which was then before the Ninth Circuit in order to permit the Board to take further action in this case consistent with the Ninth Circuit remand in the Gatlin case. On September 19, 1972, the Ninth Circuit granted the Board's motion. Thereafter, on January 3, 1973, the Board issued an order in the Gatlin case reopening the record and remanding the proceeding to the Regional Director for Region 21 for purposes of receiving further evidence as to the operation of the sponsorship program and its effect on employment practices in the industry affected. On May 14, 1973, the Board issued an order in the PMA case, reopening the record and remanding the proceeding to the Region- al Director for the purpose of receiving such further evidence as to any of the issues in the PMA case which are affected by the terms of the Ninth Circuit's remand in the Gatlin case. On November 5, 1973, Administrative Law Judge Jerrold H. Shapiro issued the attached Supplemental Decision in this proceeding. Thereafter, the General Counsel, Pacific Maritime Association (herein PMA), and Respondent filed exceptions and sup- porting briefs, and PMA filed a brief in opposition to Respondent's exceptions and brief .3 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 i I83 NLRB 221. 2 192 NLRB 260 3 The General Counsel has filed a motion to strike Respondent's exception and brief on the ground that they fail to comport with Sec 102 46 (b) and 102 46 (c) of the Board's Rules and Regulations Respondent has filed a brief in opposition The motion is hereby denied While we do not condone the statement of exception in terms so broad as to cover the entire Decision of the Administrative Law Judge in this case, the statement of grounds set forth following the statement of the exception makes it clear that the Respondent is contending the Administrative Law Judge's Decision is defective in that Respondent was deprived of due process of law and or equal protection of the laws (see discussion in fn 4, infra ) The General Counsel has also filed an ancillary motion to strike portions of Respondent's bnef as constituting improper, irrelevant, and/or scandal- ous, scurrilous argument Respondent, while asking leave to strike part of its brief, opposes the General Counsel's motion in all other respects The portion of Respondent's brief which both the General Counsel and Respondent seek to have stricken and which we shall strike, contains a personal attack on the Administrative Law Judge based on what Respondent now concedes to be pure speculation Such unfounded imputations are condemned by the Board The last sentence on p I i of Respondent's brief, as well as in. 3 and the last paragraph of Appendix TWO, beginning at the bottom of p I and ending with the word "radio" at the top of page 2 thereof are hereby stricken. In all other respects, the General Counsel's motion to strike portions of Respondent's bnef is hereby denied as lacking in merit 210 NLRB No. 143 LONGSHOREMEN'S LOCAL NO. 13 953 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings,4 findings,5 and conclusions6 of the Administrative Law Judge as modified herein. The Administrative Law Judge has to some extent modified the orders issued by the Board in these cases based upon his conclusion that Respondent has discontinued its unfair labor practices relating to the sponsorship program and a discriminatory prefer- ence given to TW (terminal warehouse unit) mem- bers and has bargained in good faith with the PMA on these matters. The General Counsel has filed exceptions. The General Counsel urges that, while there appears to be no dispute that Respondent did cease to insist upon unlawful sponsorship in Febru- ary 1970 and inferentially at least thereafter did bargain with PMA on that matter, there is a paucity of evidence that Respondent has at any time ceased granting preferential dispatch to its TW members. The General Counsel urges that the matter of Respondent's compliance with the Board's orders be left to the compliance stages. We agree. Accordingly, we shall affirm our original orders in these cases. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, International Longshoremen's and Warehousemen's Union, Local No. 13, Wilmington, California, its officers, agents, and representatives, shall take the action set forth in our original orders in these cases dated June 10, 1970, and July 28, 1971. 4 The Respondent attempts to demonstrate at length that the Adminis- trative Law Judge did not read or consider any of the briefs, exhibits, stipulations, transcripts, facts, or arguments and that therefore Respondent was deprived of a fair trial Respondent's contentions are primarily based on its speculation as to what is possible within the time between the date of the filing of briefs and the issuing of the Administrative Law Judge's Decision In our opinion there was sufficient time to enable the Administrative Law Judge to consider the entire record in this proceeding including the arguments of the parties Moreover, the full discussion of the facts and issues in the Administrative Law Judge's Decision demonstrates that the Administrative Law Judge did give full consideration to the entire record including the arguments of the parties The Administrative Law Judge erroneously states at one point in his Decision that the Coast Committee's order directing that the sponsorship system be abolished was issued in 1960 However, as noted elsewere in the Administrative Law Judge's Decision, that order was issued in November 1965 and was effective at the end of the then current registration 5 The Pacific Maritime Association has excepted to the Administrative Law Judge's findings with respect to the discriminatory application of the sponsorship system in the years prior to 1967. PMA contends that the parties have stipulated that, of 500 registered during World War I1, approximately half were Black and half were white It further contends that this stipulation is not necessarily inconsistent with the testimony of Union President Johnston that the Blacks came into Respondent during the 1948-51 period It points out that the 500 were first registered during World War II and then deregistered in 1946 due to a recession in the industry and then registered as work opportunities arose and that by 1451 or 1952 all had been offered reregistration PMA further contends that on registration the 500 assumed their original registration date Thus while Blacks entered Respondent during 1948-51 as Johnston testified, they entered with their World War II registration dates Since this history is only background and the findings with respect to it are not determinative of the issues, we find it unnecessary to pass on Respondent's exceptions except to note that we do not rely on the Administrative Law Judge's findings with respect to the racial impact of the sponsorship program during the 1965-66 period 6 Member Fanning continues to adhere to the view, as expressed in his concurring opinion in the Gatlin case, that Respondent 's sponsorship requirement is unlawful Here the Respondent's insistence on sponsorship by Class A registrants-all of whom are members of Respondent-gives rise to an inference that such conduct operates to encourage union membership by demonstrating the potency of union power. Respondent has offered no evidence which would demonstrate that Respondent's insistence on sponsorship for Class B registration serves in any statutorily cognizable way to further the Union's performance of its statutory representative function. International Brotherhood of Painters and Allied Trades, Local Union 1066, AFL-CIO (W J Siebenoller, Jr, Paint Company), 205 NLRB No. 110 (Member Fanning's concurrence in fn 4), General Truck Drivers, Chauffeurs and Helpers Union, Local No. 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Great Western Umfreight System), 209 NLRB No 52 (Member Fanning's concurring opinion) Accordingly, Member Fanning concurs with his colleagues in reaffirming the findings of unlawful conduct SUPPLEMENTAL DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: On June 10, 1970, the National Labor Relations Board, herein called the Board, issued its Decision and Order in International Longshoremen's and Warehousemen's Union, Local No. 13 (Henry A. Gatlin), 183 NLRB 221, for convenience designated herein as the Gatlin case, finding that the Respondent International Longshoremen's and Warehousemen's Union, Local No. 13, for convenience designated herein as the Union or the Respondent, violated Section 8(b)(l)(A) and (2) of the National Labor Relations Act, herein called the Act, by requiring that applicants for registration as class B longshoremen be sponsored by class A registrants. On July 28, 1971, the Board issued its Decision and Order in International Longshoremen's and Warehousemen's Union, Local No. 13 (Pacific Maritime Association), 192 NLRB 260, for convenience designated herein as the PMA case, finding that the Union violated Section 8(b)(1)(A), (2), and (3) of the Act, inter alta, by its requirement that applicants for registration as class B longshoremen be sponsored by a member of the Union or by a former member with a withdrawal card, and the Union's insist- ence for a time upon the use of sponsorship in class B registration in its negotiation with the Pacific Maritime Association. In determining that such sponsorship program was illegal the Board relied in part on its findings in the Gatlin case. On April 19, '972, the United States Court of Appeals for the Ninth Circuit remanded the Board's Decision in the Gatlin case for mor. rlctailed and comprehensive findings, conclusions, and recommendations in order to clarify the decision with regard to the actual operation of the sponsorship program and the effect of the program.' Thereafter, t:' iris"ie consistency in its Decisions, the Board successfully moved the court to allow the Board to withdraw its application for enforcement in the PMA case, for the purpose of enabling the Board to take further i N L R B v International Longshoremen 's and Warehousemen 's Union. Local No 13, 80 LRRM 3213 (C A 9, April 19, 1972) 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence in the case consistent with the court's remand in the Gatlin case. On May 14, 1973, the Board remanded the Gatlin case and the PMA case to the Regional Director for Region 21 of the Board with instructions that a hearing be held before an Administrative Law Judge, "for the purpose of receiving such evidence as will permit more definite and precise findings and conclusions as to the type of sponsorship program being operated by the Respondent during all times material to this proceeding and the effect of such program on employment practices in the indus- try."2 On October 2, 1973, a hearing in this matter was conducted by me. Based upon the evidence adduced at the hearing on remand, the record in the Gatlin and PMA cases,3 and in the light of the terms of the court's remand in Gatlin, and having considered the parties' posthearing bnefs,4 I make the following findings,5 conclusions, and recommenda- tions. 1. At this point, to present the matter in a more meaningful context, I shall draw together all of the pertinent facts which in large part have already been found by the Board either in Gatlin or PMA and which in my view are supported by the record on remand. The findings of fact in this section not previously made by the Board are explained herein or in sections II through IV, infra. The Pacific Maritime Association (PMA) on behalf of its employer members and the International Longshoremen's and Warehousemen's Union (ILWU) on behalf of its locals, including the Union, were parties to a collective- bargaining agreement which was effective through 1971. The contract establishes various joint committees consist- ing of an equal number of representatives of PMA and ILWU. One of these committees, the Joint Coast Labor Relations Committee, referred to as "the Coast Commit- tee," has coastwide jurisdiction to consider the issues that are presented to it under the contract. The Coast Committee has the power to review decisions relating to the operation of dispatching halls. The collective-bargaining agreement establishes, for each port covered by the agreement, a separate committee known as the Joint Port Labor Relations Committee. The port involved in this proceeding is the Los Angeles-Long Beach harbor. The Los Angeles-Long Beach Joint Port Labor Relations Committee, herein called the "Port Committee," is, as is the case of all similar port commit- 2 The Regional Director was also empowered to receive any evidence deemed relevant and material to any of the issues in these cases affected by the terms of the court's remand in the Gatlin case. 3 The parties stipulated that "all evidence in the record either in [the Gatlin case or the PMA case I is offered in evidence . . subject to objection by any party as stated in the existing record or as stated at oral hearing and subject to contradiction by any party." * 1 have carefully considered the Respondent's postheanng objections and motions to strike and observe that the motion insofar as it refers to G C Exhs. 22(a) through 39 was granted by the Board in the PMA case Nothing in the record on remand leads me to recommend that the ruling be modified . Regarding the remainder of the motion which deals with a 34- page stipulation together with about 89 exhibits first made a part of the record in the PMA case, the Board in PMA denied this motion. My independent review of the record convinces me that the ruling was proper tees, composed of representatives of PMA and the local union, and pursuant to the terms of the contract exercises control over the longshoremen registration lists. Subject to the ultimate control of the Coast Committee, the Port Committee has the power to make such additions or subtractions from the registered list as may be needed, and is required to maintain a list showing the registration status of each longshoreman. The contract also provides that the dispatching of longshoremen shall be through halls maintained by the Port Committee and that longshoremen who are not on a registered list shall not be dispatched from the hall so long as there are men on the registered list who are available for work. The preferred treatment given registered longshoremen is further subdivided into a first preference accorded to fully registered longshoremen known as class A registrants and a second preference accorded to limited registered longshoremen known as class B registrants . If all available class A and class B registrants have been referred, then other longshoremen known as "casuals" or "unregistered" men can be dispatched. All class A registrants are normally members of the Union, whereas class B registrants and unregistered men generally are not union members. The Union, with the agreement of PMA, historically maintained a policy of requiring that applicants for class B registration be sponsored by eligible members of the Union. However, by agreement between PMA and ILWU officials in November 1965, the Coast Committee terminat- ed the use of sponsorship in registration effective immedi- ately after the then pending 1965-66 registration was completed. But, when additional openings for class B registrants were thereafter created, the Union through its representatives on the Port Committee, over the objections of the representatives of the PMA, adamantly insisted that no applicant for class B registration would be approved by the Union unless, as described in detail below, sponsored by a member of the Union.6 The Union maintained this position from about June 15, 1967, until February 1970, at which time it agreed that sponsorship would not be considered in registration, and proceeded to implement the award of the arbitrator, which is described, infra. The Union adamantly maintained its position that sponsorship was a condition of registration despite the assertion in 1967 and again in 1968 by the Coast Committee of its opposition to the use of sponsorship. The Union's rigidity on the issue forced the matter to arbitration pursuant to the contractual grievance-arbitra- tion procedure. The arbitrator found, inter alia, that the Union was "insisting that the only registration process to and that nothing has changed since PMA to warrant any modification of the ruling. To the contrary, the Respondent by virtue of par 3 of the stipulation entered into at the hearing on remand (G C. Exh. R2) appears to have limited the scope of any possible objections on this matter. 5 "G.C. Exh R" or "PMA Exh. R" refer to the General Counsel's or the Charging Party's exhibits placed in evidence at the hearing on remand. The references to "G C Exh " are to the exhibits of the General Counsel placed in evidence during the Gatlin and PMA cases "Para Joint Exhibit" refers to the parties Joint Exhibit placed in evidence in the PMA case, and "S- " refers to the numbered exhibits referred to in the aforesaid Joint Exhibit. 6 The Union further implemented its stance on sponsorship by denying nonregistered longshoremen , such as James Phillips, the opportunity to apply for registered status on the ground that his application must be sponsored LONGSHOREMEN'S LOCAL NO. 13 955 which it [would] agree is one that included sponsorship," and specifically concluded, inter alia, that the Union's sponsorship program constituted a violation of the collec- tive-bargaining agreement.? In opposition to the arbitra- tor's award, the Union continued to insist on using sponsorship in the registration of class B applicants. By this continued insistence on the use of sponsorship the Union, through its representatives on the Port Committee, blocked the registration of class B longshoremen for approximately 2 1/2 years. The Union was able to do this for the reason that although applicants were required to take a physical examination and were interviewed on a nondiscriminatory basis after their selection by the Port Committee, appli- cants without sponsors were automatically excluded from the consideration by the Port Committee and never got as far as an interview or physical examination. In short, the Union exercised a veto over the registration of class B applicants. The result of the Union's action was a need to fill longshoreman jobs with a larger number of unregistered men than would have been dispatched had the class B list been augmented. It was at this point, January 1969, that the Union drastically increased the number of its members among the unregistered terminal warehousemen, herein called TW members, and as found in the PMA case unlawfully gave preference to its TW members over nonmembers in dispatching nonregistered men to long- shoreman jobs. Furthermore, as found by the Board in PMA, this illegal preference in dispatching its TW members, when viewed in the context of the total case, was a none-too-subtle maneuver by the Union to obtain class B registration preference for its TW members over the other applicants for class B registration who were not members of the Union, thereby preventing the registration of nonmembers on a nondiscriminatory basis. Simply stated, the Union's preferential referral of its TW members was directly related to the Union's sponsorship program. It was designed to get around the PMA's and the arbitrator's refusal 4o acquiesce in the Union's insistence that class B registrants have a sponsor. Now that the case has been placed in its context, I will deal with the issues raised by the remand. II. In Gatlin the Board concluded that the Union was insisting that all applicants for registration as class B longshoremen must be sponsored by class A registrants, all of whom were members of the Union, before such t The arbitrator's construction of the collective-bargaining agreement, of coarse. is entitled to substantial weight on the issue of the meaning of the co itract and specifically whether the use of sponsorship by the Union was contrary to the agreement. The agreement particularly prohibits "favoritism or discrimination in the hiring or dispatching or employment of any [qualified] longshoreman " and also requires that any member of the Port Committee who "objects to the registration of any man shall be required to give a reason therefore"-language which plainly dictates that applications be considered on a rationale basis and not on some basis of personal friendship or membership within the Union Based on the language of the collective-bargaining agreement and the award of the arbitrator, I find that the insistence of sponsorship by the Union in the registration of class B registrants was in violation of the collective-bargaining agreement 8 Specifically , in this regard , Paul Van Delinder in 1966 was declared ineligible to sponsor because he had transferred from another ILWU local applications would be considered by the Union. In PMA, however, the Board on the basis of a more complete record found that membership in the Union was not merely coincidental with class A-registered status, but that the Union was insisting that applicants for class B registration status be sponsored by a member of the Union or by a former member with a withdrawal card . I am convinced, based on the evidence set out below, that the record on remand supports the conclusion that eligibility to sponsor was based upon membership in the Union , and that the employees and Union regarded sponsorship as a private internal affair of the Union. (1). In the PMA case the Union stipulated, "a sponsor in connection with the registration process is a member of local 13, or a former member with a valid withdrawal card, who recommends the applicant for registration " (Par. 41 Joint Exh.). Consistent with this stipulation, the Union's members and leadership were under the impression that the privilege to sponsor was a benefit of membership in the Union. Thus, William Ward, a registered longshoreman and member in the 1950's and 1960's as well as an official of the Union, testified that the sponsorship program was explained to the registered longshoremen as a system giving the right to "each member to sponsor someone." Also, the president of the Union, Curt Johnson, testified in the Gatlin case that he assumed that each of the class B applicants submitted by the Union to the PMA on October 2, 1968, was recommended "by a member. " (2). In the actual operation of the sponsorship program, it appears that a substantial number of fully registered class A longshoremen were declared ineligible to sponsor only because they were not members of the Union on March 8, 1951 (See G.C. Exh. 10, particularly the noneligible sponsors listed in "lists" 2, 4, and 5).8 Also, the class B applicants submitted on October 2, 1968, by the Union to the PMA (G.C. Exh. 3), were sponsored by individuals whose eligibility to sponsor was determined by the date on which they were initiated into the Union (see par. 11, Joint Exh. and S-6 and S-8 referred to therein).9 Indeed, when the list of the names of the class B applicants and sponsors submitted on October 2, 1968 (G.C. Exh. 3) is compared with the worksheets used by the Union to compile this list (see S-5) approximately 90 of the named sponsors who did not appear on the list of persons entitled to sponsor (G.C. Exh. 10) were individuals who had been accorded sponsorship privileges based on their dates of initiation into the Union , all of which dates were late in 1951, long after March 8, 1951.10 Also, in connection with its preparation of the October 2, 1968, list of applicants union after the deadline date of March 8, 1951, even though he had been registered as a class A longshoremen since November 6, 1945 (C.G. Exh. 10 at p 10-11). Thereafter, the Union apparently discovered that Van Delinder had been initiated into the Union on June 25, 1951 (See S -5), whereupon his name was submitted on October 2, 1968 , as an eligible sponsor (G C Exh. 3 at p. 9) 9 Likewise, Ward, a member of the Union and an official of the Union during times material to this case, testified that a requirement for sponsorship eligibility was that sponsors be "union members whose initiation date was prior to March 8, 1951." In practice , however, as described infra, the Union permitted members to sponsor who were initiated even after March 8, 1951. io In Gatlin the court observed that "no findings were made with regard to the 179 sponsors who did not appear eligible under the union's posted eligibility criteria for sponsors." As found above, about 90 or more were (Continued) 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and their sponsors, the Union stipulated that "the registration advisory committee of local 13 prepared certain lists of past and present local 13 members . . . with the name of the man that each was sponsoring ..." and further stipulated "that the [Union] also prepared a document . . . [setting] forth the names of members of Local 13 in sequence of their dates of initiation into Local 13," who had not exercised their sponsorship right under the 1965 procedures (par. 11, Joint Exh.). (3). At the Port Committee meeting of February 2, 1968, the PMA representatives moved that the Union be found guilty of violating the collective-bargaining agree- ment by insisting upon using the sponsorship program in the selection of class B longshoremen. The representatives of the Union took the position that the motion should be tabled for further study by the Union. PMA's representa- tives reminded the union representatives that consistently since the Port Committee's meeting of June 15, 1967, the Union had taken the position that class B applicants would only be registered if they were sponsored. PMA's repre- sentatives then explained to the Union's representatives the employers' understanding of the sponsorship program, in these terms: The procedure used by [the Union] to approve applicants is that [the Union's] Membership committee or Registration advisory committee calls before it Local 13 members in sequence of their respective dates of initiation into [the Union]. Excluded from being called to appear are all persons who have sponsored men in prior registrations. Each member of [the Union] called before the Registration Advisory Committee has an opportunity to present the name of one applicant to that Committee for approval by the [the Union] Membership Committee. Any applicant for registration whose name is before the [Port Committee] and who has not been approved by the . . . procedure just described is for this reason denied approval by the [Union] members in the [Port Committee]. In denying approval, these [Union] representatives are acting in accordance with the mandate of the [Union] member- ship. The representatives of the Union did not deny the accuracy of this description but took the position: [T]he employers' objection to procedures used by [the Union] involves private Union affairs and action of Union committees. The private internal affairs of the included on the basis of being initiated into the Union on dates subsequent to the posted eligibility date Included in this list of 90 were about 23 who were declared ineligible by the Port Committee at the meeting of March 3, 1966, for the reason that they had registered after the eligibility date (See G.C Exh 10, list 7). Also, from the record I have determined that four sponsors on the October 2 submission had, at the March 3, 1966, Port Committee meeting, been judged ineligible to sponsor because they had already used their sponsorship privileges, two more had been fudged ineligible having been foremen who left the Union before the date of March 8, 1951; and four more had been judged ineligible having transferred into the Union from other local unions after March 8, 1951 (See G C Exh 10 and compare with G C Exh 3) I am not able to make findings as to the remaining ineligible sponsors appearing in the Union's submission of October 2, 1968 Union are not properly before the [ Port Committee] for discussion. The above findings pertaining to the Port Committee meeting of February 2, 1968, are based on the minutes of the meeting (S-53). These minutes, as is the case of all minutes of the Port Committee, were kept during the normal course of business by the PMA. Also, the parties stipulated that, if called, witnesses would have testified under oath as to what is contained in these minutes. (G.C. Exh. R2, par. 3) I realize that the president of the Union signed the minutes of February 2 with the written comment that these particular minutes in general portrayed an inaccurate picture of what took place at the meeting, that it was slanted in favor of PMA. But I will not, however, give weight to such a general denial, over the specific descrip- tion by the PMA representatives of the sponsorship system and the Union's reply. I am of the opinion that the Union's failure to specifically disavow the PMA's description of the sponsorship program, plus the whole record, supports the description contained in the February 2 minutes, which I find is an accurate description of the operation of the sponsorship program and the Union's attitude toward the program. To conclude, based on the foregoing, although eligibility to sponsor was defined in terms of class A status, I find that the preponderance of the evidence establishes that in the actual operation of the sponsorship program, eligibility to sponsor was conditioned upon membership in the Union,ii and that the Union viewed the sponsorship program as a private internal union affair. For an undetermined number of years, the Union has maintained a policy that applicants for class B status must be sponsored, as I have found above, by a member of the Union. This policy was acquiesced in by the Employer, the PMA, which together with the Union used the procedure to screen applicants for class B registration. There is no competent evidence indicating the reason for the initiation of this procedure.12 There is evidence, however, establish- ing that early in 1960 the Coast Committee, which, as described earlier, has the ultimate power under the collective-bargaining agreement over registration practices, issued an order directing that the practice of sponsorship be abolished. The circumstances surrounding the Coast Committee's decision are relevant to this proceeding insofar as they present a more complete picture of what actually took place than the one portrayed in the Gathn 11 The parties stipulated that during the period of time when the sponsorship program was in use that six class A registrants , not named, were not members of the Union. The Union presumably had the names of these registrants in its possession, yet it adduced no evidence that these nonmembers were accorded sponsorship rights. Under the circumstances. I presume that this group of class A registrants were not among the eligible sponsors of March 13, 1966, or the sponsors in the Union' s submission of October 2, 1968. 12 On the subject of the "genesis" of the sponsorship program, Respondent, in its posthearing brief, states "[i ]t was only natural that the longshoremen of the '30's and '40's whether members of an ethnic, racial or economic minority, hit upon 'sponsorship ' as a means of assuring some minimum job opportunities for their sons "[Emphasis supplied ] LONGSHOREMEN'S LOCAL NO. 13 957 and PMA cases, and provides an insight into the Union's motivation or justification in insisting that the sponsorship program be continued. On January 22, 1963, the Coast Committee agreed to add 250 class B-registered longshoremen in the Los Angeles- Long Beach harbor. (PMA Exh. R1) Previously, for a number of years no new class B longshoremen had been registered. At the same time that it authorized the registration of the 250 additional class B registrants, the Coast Committee issued the following instruction to the Port Committee. Attention to be given to making sure that the practice of sponsorship of recruits in Los Angeles is continued now that Negroes will have their chances to sponsor effectively so that registration does not result in violations of equal opportunity policies in the Los Angeles Area. The basis for this instruction was the belief of the Coast Committee that there were a group of blacks who were eligible to sponsor under the sponsorship program as applied by the Union, and that if they were denied this right they would charge the Union and PMA with discrimination. In this regard, Johnson, the Union's president, testified in Gatlin that a large number of Negroes "were brought into this local" from 1948 through 1950. Also, the parties stipulated at the hearing on remand that blacks were employed as class A longshoremen "at the earliest sometime during World War II and at the latest sometime in 1951 or 1952" with the largest number of blacks being registered as class A longshoremen prior to March 8, 1951. On November 23, 1965, the Coast Committee reiterated its January 22, 1963, ruling, previously described, that the sponsorship system would be continued in registering class B registrants, but now it limited the future use of sponsorship to the current registration. Specifically, the Coast Committee informed the Union and the PMA that the sponsorship procedure used in the past would be used in the "current registration of Longshoremen at [the Los Angeles-Long Beach] port," and that "the sponsorship procedure shall not be used thereafter." In short, the Coast Committee on November 23, 1965, unequivocally told the Union and PMA that after the current registration of the 250 class B men, they were to consider applicants without regard to sponsorship.13 (See S-28, S-36, and G.C. Exh.6) Thereafter, at some date in 1966, after reaching agree- ment on a list of eligible sponsors (see G.C. Exh. 10), the Port Committee used the sponsorship program to screen out applicants and registered the 250 class B longshoremen previously authorized by the Coast Committee. Regarding this registration, it was stipulated by the parties in the 13 William Ward, a member of the Coast Committee representing the ILWU, testified that his recollection of the above meeting was not clear and he would have to refresh his memory by reading the minutes of the meeting (S-28). Then, without doing this, Ward, in substance testified that he recalled that the sponsorship program was to continue indefinitely until all of the eligible "members of the Local" had an opportunity to sponsor someone. But he later qualified this by testifying he meant that the understanding was "they would continue to use sponsorship for the upcoming addition to the registration list." On this subject, Ward was not a convincing witness . He impressed me in bearing and demeanor as having no PMA case, in substance, that in deciding in November 1965 to continue to allow the use of sponsorship during the then current registration, the Coast Committee felt that prior to 1965 only a low percentage of "Local 13 members who were black" had been able to sponsor and a high percentage of other "union members" had sponsored, so in these circumstances the Coast Committee decided that sponsorship should be used in the 1965-66 registration to effectuate the requirements of the contract and the law that there be no discrimination based upon race. Regarding the eligibility to sponsor at the time of the 1966 registration, the Port Committee on March 6, 1966, agreed that of the list of sponsors submitted by the Union, 331 were eligible to sponsor class B applicants pursuant to the eligibility standards posted on May 26, 1965, for determining such eligibility. On its face, the posted standard of eligibility states that only those class A longshoremen who had obtained class A status prior to March 8, 1951, and who had not already successfully sponsored a class B applicant for registration would be eligible to sponsor class B applicants in the future.14 In the Gatlin case, the president of the Union, Johnson, testified that the eligibility to sponsor had been limited in this fashion by the Union sometime during 1964 when the Union discovered that a "great many negroes" would be deprived of their sponsorship privilege if any date earlier than March 8, 1951, had been selected as the date cutting off such privilege. Johnson testified that during the years 1948, 1949, 1950, and 1951, a large number of Negroes "were brought into this local" and by using March 8, 1951, as a cutoff date they would have the same right to sponsor as "the other groups." In this regard, it was stipulated in the hearing on remand that, included among the last several hundred class A applicants who were registered immediately prior to March 8, 1951, there was a concentra- tion of blacks. Based on the foregoing, it seems that the Coast Committee in 1963 and in 1965 was under the impression that through the use of the sponsorship system it would give the blacks an equal chance to sponsor. And, as described above, the Union says it tailored its sponsorship program to effectuate such a policy of equality. Yet, the actual operation of the sponsorship program belies the Union's claim, and it appears that the confidence of the Coast Committee was misplaced. Thus, of the 331 eligible sponsors, all except 45 had seniority in the Union dating prior to 1948. It is undisputed that in determining the order of sponsorship among those eligible to sponsor seniority governs. In other words, because of this policy the Union knew that the group of 45 eligibles among whom the blacks were presumably concentrated would have to await their turn until the other 286 were given the opportunity to exercise their privilege to sponsor for the 250 job openings. independent recollection of what had taken place at the Coast Committee meeting held 8 years ago I reject his testimony on this subject. Also, on this matter, I note that the Union at no point in its discussions with PMA took the position that the Coast Committee had agreed on November 23, 1965, or had agreed on any other date to allow the Union to use sponsorship indefinitely until all of the eligibles had exercised their sponsorship privileges i4 1 have found , supra, that in practice eligibility to sponsor was conditioned primarily upon membership in the Union and, if at all, only coincidentally upon class A status 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In fact, 34 of the 45 did not use their privilege to sponsor in the 1966 registration.15 Finally, the record as a whole, the various stipulations and the testimony of Union President Johnson indicate that very few blacks were included among the 286 sponsors whose union seniority predated 1948. All of these circumstances, in my view, establish that the last time the sponsorship program was actually used in the selection of applicants for class B registration its use resulted in the blacks being discriminated against. They were discriminated against as sponsors by virtue of the seniority system, and if there is a correlation between the race of a sponsor and the applicant he sponsors then black applicants were obviously discriminated against. IV. The Union called no witnesses at any stage of these proceedings. The only evidence justifying the use of the sponsorship program was that of Union President Johnson, called by the General Counsel, and a number of stipula- tions which in substance establish that a substantial number of blacks were registered as class A longshoremen in the years 1948-51, up to March 8, 1951, and that because of this the Union picked the latter date as the critical one for determining eligibility to sponsor. The Union, as the Board in Gatlin indicated, seems to be suggesting that its sponsorship program was reasonable because use of sponsorship, in these circumstances, would cause other blacks to become class B registrants. The Board, however, found that this explanation "has a very hollow ring." I agree, for if the Union's purpose was really to achieve or preserve racial balance, it could have easily accomplished this objective by abandoning sponsorship, as directed by the Coast Committee and the arbitrator, in favor or a policy of recommending qualified black applicants without regard to whether they happen to know a black member of the Union or a black class A registrant. Also of significance is the fact that, as found above, the sponsorship program as it was operated was not calculated to increase or encourage the employment of blacks. Indeed, it appears that the last time the system was used black sponsors were discriminated against because of the use of seniority in determining eligibility. Of even greater significance, the evidence establishes that the Union's insistence from June 1967 to February 1970 upon continu- ing the use of sponsorship was not, as the Union at one point told PMA, motivated by any concern with giving the group of black members (about 34) who had been initiated into the Union from 1948 through March 7, 1951, and had not used their sponsorship privilege in 1966, same opportunity to sponsor as other groups. For, in subse- quently insisting upon the continuation of sponsorship, the Union, as the Board found in Gatlin, used a much broader system of sponsorship than established by its own ruses. is Compare G C. Exh 10, which contains the names of the 45 1948-51 eligible sponsors, with G.C. Exh. 3 which contains the names of the sponsors submitted by the Union on October 2, 1968. Thirty-four of the 45 found eligible in 1966 reappeared on the submission on October 2, 1968. 16 In deciding whether the ultimate findings in this proceeding establish a violation of the Act I have been guided by the principle of law set out by the Board in International Union of Operating Engineers, Local 18, AFL-CIO, 204 NLRB No 112: The list of class B applicants submitted by the Union to the Port Committee on October 2, 1968, contained 254 names, each with a sponsor; yet, about 70 percent of these sponsors were ineligible to sponsor. The documentary evidence, as found supra, establishes that about 90 of those not eligible were given the privilege to sponsor on the basis of their initiation into the Union on dates subsequent to the March 8, 1951, published eligibility date. The Union offers no explanation for the inclusion of this group as eligible sponsors, nor does the Union offer any explanation for deviating from its established sponsorship program. Without an explanation supported by competent evidence I can not presume a reasonable explanation for this conduct, nor can I presume that included in the 90 and other ineligibles was a heavy concentration of blacks. Contrariwise, I presume that included among the 90 were few, if any, blacks, inasmuch as the Union says the reason it established in 1964 the March 8, 1951, cutoff for eligibility to sponsor was that it was prior to this date that there was an influx of blacks with class A status. I presume that the cutoff date would have been drawn at January 1, 1952, if additional blacks had acquired class A status between March 8 and December 31, 1951. Based on the foregoing, (sections II, III, and IV), I find that the continued use of the sponsorship program, upon the Union's insistence from June 1967 to February 1970, was unrelated to any desire on the part of the Union to assist black sponsors or black applicants and that the sponsorship program, as operated, bore no relationship to the competence needed for registered longshoremen work. Rather, it was motivated by a desire to reward members of the Union with a form of patronage. I further find that the sponsorship program, as operated, had nothing to do with any legitimate function that the Union had as a bargaining representative. Concluding Findings 16 For the reasons given above, I conclude that the evidence developed in this proceeding establishes: (1) In the actual operation of the sponsorship program the eligibility to sponsor a class B registrant was based upon membership in the Union; (2) the Union regarded the sponsorship program as a private union affair outside of the realm of collective bargaining; and (3) the sponsorship program, as operated, was unfair and arbitrary, having no relationship to the Union's role as the employees' collec- tive-bargaining representative. I further conclude that in the aforesaid circumstances the natural result of the sponsorship program was to encourage membership in the Union. More specifically, sponsorship was not used as a means of screening out unqualified applicants. Contrariwise, it was used as a means of limiting the number of class B registrants, while at the same time When a union prevents an employee from being hired . it has demonstrated its influence over the employee and its power to affect the livelihood in so dramatic a way that we will infer-or, if you please, adopt a presumption that-the effect of its action is to encourage union membership on the part of all employees who have perceived that exercise of power But the inference may be overcome, or the presumption rebutted, where the facts show that the union action was necessary to the effective performance of its function of representing its constituency. (Id) LONGSHOREMEN'S LOCAL NO. 13 959 restricting the eligibility of sponsors in a manner which shows that the Union was more interested in rewarding members of the Union with a form of patronage than with finding competent applicants for class B status. Thus, each union member was entitled to sponsor only one successful class B registrant during his entire career as a longshore- man, no matter how many qualified applicants the union member might come to know in his lifetime. Only union members who were initiated prior to March 8, 1951, were eligible to sponsors" and could only exercise this privilege in the order of their seniority in the Union. The Union coupled these severe restrictions on sponsorship with a practice of not entertaining applications which lacked a sponsor and adamantly opposed the nonsponsored appli- cants proposed by the PMA-apphcants selected, as the record shows, on the basis of their experience and training. Clearly then, the sponsorship program as maintained, was not simply a means by which an experienced longshore- man could recommend a deserving fellow unregistered employee; rather, it was based on whether or not an applicant knew the right person; namely, a member of the Union who had not exercised his sponsorship rights. In short, these sponsors had been clothed by the Union with power over the livelihood of employees seeking registered employment status, including the power to deny sponsor- ship to an individual for wholly irrelevant or personal reasons or even because of an applicant's antiunion sentiments . One result of the sponsorship program was to naturally encourage employees seeking sponsors-and other employees as well-to join the Union and serve as loyal members. Applicants would only naturally want to get as close to the source of power as possible. The fact that the eligibility of an employee to sponsor is tied in to his membership in the Union makes this conclusion inescapable. For, a plan which requires sponsorship by the Union's members can only lead applicants to believe that there is a connection between his views toward the Union and his chances of obtaining a sponsor. In this sense the sponsorship requirement is tantamount to requiring that the applicant be favorably disposed toward the Union. Based on the foregoing, I find that the Union's sponsorship program as maintained constituted unlawful discrimina- tion calculated to encourage union membership and as such constituted unlawful discrimination within the mean- ing of Section 8(b)(1)(A) and (2) of the Act. Since I have concluded that the type of sponsorship program operated by the Union was grounded upon considerations of union membership, I do not believe that it is necessary to decide whether the program violated the Union's statutory duty of fair representation. In the event, however, that the Board or the court feels I have erred, I shall decide this issue. Assuming that the eligibility to sponsor was based upon class A-registered status and only coincidentally upon union membership, I am of the opinion that in the circumstances of this case the Union's insistence upon the use of this program violated its statutory duty of fair representation . I reach this conclu- sion for the following reasons. The Union produced no evidence to demonstrate that the sponsorship program constituted a legitimate exercise of its role as the employees' bargaining representative or of its contractual authority to operate a hiring hall under its agreement with the PMA . To the contrary , the evidence as found above establishes that no legitimate bargaining representative or hiring hall function was served by the Union's policy. Viewed most favorably to the Union, the evidence establishes that sponsorship was used as a means of rewarding class A registrants with a form of patronage rather than with finding qualified applicants for class B registration. Also, as found above, sponsorship violated the terms of the collective-bargaining agreement,18 and when last used tended to discriminate against blacks . For these reasons, the evidence of the way in which the program actually operated buttresses the Board 's findings in the Gatlin case that the sponsorship program has "more the ring of an archaic social club than of a labor organization," and its further conclusions that the sponsorship system was "arbitrary and unfair," and that the Union violated its statutory duty "to refrain from such conduct where it adversely affects the employment status of employees and applicants for employment on whose behalf it bargains," in violation of Section 8(b)(1)(A) of the Act. I further find that the longshoremen , including appli- cants for employment , who have been exposed to the arbitrary and unfair operation of the sponsorship program as maintained by the Union, will naturally be encouraged to become members of the Union or if already a member encouraged to remain members in good standing. In this connection, the law is settled that although evidence of unlawful motivation is normally a precondition to a finding of a violation of Section 8(b)(2), "some conduct may by its very nature contain the implications of the required intent ; the natural foreseeable consequences of certain action may warrant the inference." Local 357, Teamsters v. N. L. R. B., 365 U .S. 667, 675 (1961 ). And, "in determining whether or not action taken by a union either encourages or discourages union membership, we examine the reasonable and general tendency of the union 's acts." International Longshoremen 's Association, Local No. 1581, AFL-CIO, 196 NLRB 1186. In the instant case, the longshoremen (registered and unregistered alike) exposed to the arbitrary and discriminatory operation of the Union's sponsorship program will readily understand they best become or remain loyal union members. The fact that longshoremen generally are not eligible for union member- ship until they attain class A status is irrelevant, for, as the Supreme Court has noted in a case where the employees discriminated against were also ineligible for union membership because they were not sons of members, "the Act does not require that the employees discriminated against be the ones encouraged" (Radio Officers' Union v. N L.R.B., 347 U.S. 17, 51); and, in addition, "Union admission policies are not necessarily static and .. . 17 This restriction was not inviolate when a large enough group of union 18 In this regard, the Union's continued insistence upon sponsorship members was involved Thus, as descnbed supra, the Union made a group after the adverse decision of the arbitrator refutes any contention that the of 90 members eligible to sponsor who were initiated into the Union dunng Union adopted its position based upon a good-faith belief that sponsorship the latter part of 1951 was not in derogation of the contract 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees may be encouraged to join when conditions change." (347 U.S. at 52) RECOMMENDATIONS 19 I shall recommend that the Board reaffirm the rulings, findings, and conclusions made in the Gatlin and PMA cases insofar as they are not inconsistent with any of the rulings, findings, and conclusions set out in this Supple- mental Decision. Regarding the Orders in these cases, I shall recommend that the Board reaffirm in their entirety the cease-and-desist portions of the Orders, but that, inasmuch as the Respondent in February 1970 discontin- ued its unfair labor practices relating to the sponsorship program and the discriminatory preference given its TW members and has bargained in good faith with the PMA on these matters, I shall recommend that the affirmative action portions of these Orders, as well as the notices to members, be modified to take into account the Respon- dent's subsequent conduct. For the sake of convenience, my recommended Order and notice pertaining to the Gatlin case have been attached hereto as Appendix A and A-1 [omitted from publication], and my recommended Order and notice in the PMA case [omitted from publication ] have been attached hereto as Appendix B and B-1. In considering the remedy in this matter, I have carefully 19 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, and recommended Order herein shall, as provided by 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 considered whether a Board order requiring the Respon- dent to cease and desist from the unfair labor practices found has been made moot by Respondent' s subsequent compliance. Insofar as the Respondent has complied with the affirmative parts of the Board's Orders in the Gatlin case and the PMA case, my recommended Order, as indicated above, reflects such compliance.20 But, in all other respects I have not modified these Orders, for it is my opinion that in the circumstances of these cases the General Counsel and the Charging Parties are entitled to have the resumption of the unfair labor practices barred by a cease-and-desist order. In analagous situations the Supreme Court has repeatedly held that even full compli- ance with the affirmative provisions of a Board order does not render the cause moot, since the Board is still entitled to the potential comtempt sanctions of a court decree to prevent future related violations. N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 567-568; N.L.R.B. v. Raytheon Co., 398 U.S. 25 (1970); also see N.L.R.B. v. Southern Household Products Company, 449 F.2d 749 (C.A. 5, 1971). Although I recognize that there are situations where a case will become moot, I am not persuaded to hold, in the light of all the pertinent circumstances, that the General Counsel and the Charging Party are not entitled to the Orders described above. deemed waived for all purposes 20 There is, however, no evidence or contention that the Respondent has complied with the "make whole" affirmative action part of the Order in PMA requiring it to make whole certain applicants for loss of earnings. For this reason, I have not modified this part of that Order