Standard Fruit and Steamship Co.

STANDARD FRUIT AND STEAMSHIP COMPANY 121 Standard Fruit and Steamship Company and James W. Cowan General Truck Drivers, Chauffeurs & Helpers Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Standard Fruit and Steamship Company) and James W. Cowan. Cases 21-CA-11919 and 21-CB-4676 Although there is no evidence in the instant case that any employee who would have normally been dispatched to work for Respondent Employer was denied such employment as a result of Respondent's unlawful preferential treatment of certain employees, this is a matter that affects the scope of the remedy rather than the nature of the violation. ORDER June 6, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 15, 1974, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief and Respondent Standard Fruit and Steamship Company filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. We find merit in General Counsel's exception to the Administrative Law Judge's failure to find that the Respondent Employer violated Section 8(a)(3) of the Act by giving preference in employment on July 2, 1973, to employees who had picketed on behalf of the Western Conference of Teamsters at Coachella Valley, California.2 The facts as found by the Administrative Law Judge clearly show that on July 2, 1973, Respondent Employer's teamster foreman told Respondent Union's hiring hall dispatcher to send him a certain number of employees and to give priority to those who had engaged in the aforemen- tioned picketing. The dispatcher complied with this request by announcing over the public address system at the hiring hall, "All Coachella bo-s come to the front" and sending all of the responding employees to work for Respondent Employer. All of these employees were employed by Respondent Employer that day. Thus, it is clear that not only did Respondent Employer request that preferred treat- ment by given certain employees on an unlawful basis but this request was effectuated by both Respondent Union, through the aforementioned action of its dispatcher, and Respondent Employer, through its employment of the employees so referred. 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 as modified below and hereby orders that: A. The Respondent Employer, Standard Fruit and Steamship Company, Long Beach, California, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order as herein modified: 1. Insert the following paragraph and reletter paragraph 1(b) as 1(c): "(b) Giving preference in employment to employ- ees who picketed on behalf of the Western Confer- ence of Teamsters at Coachella Valley, California." 2. Substitute the attached notices for the Admin- istrative Law Judge's notices. B. The Respondent Union, General Truck Driv- ers, Chauffeurs & Helpers Local 692 , International Brotherhood of Teamsters , Chauffeurs, Warehouse- men & Helpers of America, Long Beach, California, its officers, agents, and representatives, shall take the action set forth in the Administrative Law Judge's recommended Order. I Both General Counsel and Respondent Standard have excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to o- errule 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 Member Penello finds it unnecessary to pass upon the alleged violation of Sec 8(a)(3) because General Counsel has not shown that any employee was actually discriminated against as a result of Respondent Employer's unlawful request on this particular day and Respondent Union's apparent compliance therewith Consequently, this matter cannot materially affect the scope of the remedy herein APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT request that General Truck Drivers, Chauffeurs & Helpers Local 692, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America discrimi- 211 NLRB No. 21 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nate against our employees through hiring hall preference of persons who picketed on behalf of the Western Conference of Teamsters at Coachel- la Valley, California. WE WILL NOT give preference in employment to employees who picketed on behalf of the Western Conference of Teamsters at Coachella Valley, California. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act, in violation of Section 8(a)(1) of said Act. STANDARD FRUIT AND STEAMSHIP COMPANY (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 compli- ance with its provisions may be directed to the Board's Office, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government TO ALL: Members, officers, representatives, and agents TO ALL: Employees of Standard Fruit and Steam- ship Company or applicants or registrants of employ- ment and persons using our hiring hall, whether or not members of General Truck Drivers, Chauffeurs & Helpers Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America WE WILL NOT cause or attempt i,u cause Standard Fruit and Steamship Company, its officers, agents, successors, or a signs, to discrimi- nate against its employees in violation of Section 8(a)(3) of the Act, through hiring hall preference of persons who picketed on behalf of the Western Conference of Teamsters at Coachella Valley, California. WE WILL NOT in any other manner cause or attempt to cause Standard Fruit and Steamship Company, its agents, successors, or assigns, to discriminate against its employees in violation of Section 8(a)(3) of the Act, through hiring hall preference of persons who picketed on behalf of the Western Conference of Teamsters at Coachel- la Valley, California. WE WILL NOT restrain or coerce employees of Standard Fruit and Steamship Company, its officers, agents, successors, or assigns, in the exercise of the rights guaranteed in Section 7 of the Act. GENERAL TRUCK DRIVERS, CHAUFFEURS & HELPERS LOCAL 692, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at Long Beach, California, on December 4, 1973. Separate charges were filed against the above- named two Respondents by James W. Cowan on July 3 1973. Order consolidating cases and consolidated com- plaint were issued on the two charges August 23, 1973. The consolidated complaint alleges that Respondent, General Truck Drivers, Chauffeurs & Helpers Local 692, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, hereinafter referred to as Union, violated Section 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act, as amended, hereinafter referred to as the Act. The consolidated complaint also alleges that Respondent Standard Fruit and Steamship Company, hereinafter referred to as Employer, violated Section 8(a)(1) and (3) of the Act. Issues The principal issues are ( 1) whether the Umon violated the Act by dispatching from its hiring hall to the Employer, on an illegally preferential basis, casual workers who had STANDARD FRUIT AND STEAMSHIP COMPANY engaged in picketing activities, on behalf of the Western Conference of Teamsters, in Coachella Valley, California, and (2) whether Employer refused to employ workers, through the Union, who had not engaged in such picketing activities. A third issue, first raised at hearing by counsel for Respondent Employer, is whether the decision herein should be deferred for referral of the matter to an arbitrator. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and both Respondents. Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following: ARTICLE VII-SENIORITY * * * * 123 (b) Validated Seniority List (1) Each Company shall initially prepare and maintain a thirty-man, validated seniority list in accordance with the selection of the three-man committee agreed to in the May 7, 1971, Memorandum of Agreement between the parties, which lists shall be updated each quarter, com- mencing the first week of January, April, July and October of each year. All swampers employed in the Company's truck loading operation shall be selected first from its validated seniority list and additional work shall be performed by casual swampers called from the Hiring Hall by the Companies. FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent Employer is a corporation with its principal office in New Orleans, Louisiana, and with a place of business in Long Beach, California. Employer is engaged in the growth, transportation, and wholesale distribution of bananas, pineapples, coconuts, and other fresh fruit. In the normal course and conduct of its business operations, Employer annually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of California. I find that Respondent Employer is engaged in commerce, and in a business affecting com- merce, within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED General Truck Drivers, Chauffeurs & Helpers Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Background The Union and the Employer have had a collective- bargaining relationship several years; the current contract was effectuated June 1, 1971, and is effective at the time of this decision pursuant to a provision thereof rciating to continuance by mutual consent, beyond the termination date of June 30, 1973. The bargaining .'nit covered by the contract embraces "all swampers who are employees . . . and excludes all other employees. Swampers are defined in the contract as (in brief) men who load, unload, or otherwise physically handle banana cargoes. Pertinent provisions of the contract relating to seniority are the following: (4) Replacements to the validated seniority list will be made from the casual work force by the three-man committee. 5. Qualification for the above-named categories of validated seniority lists shall be on a non- discriminatory basis and shall not be based on, or in any way affected by, union membership, by- laws, rules, regulations, constitutional provisions, or any other aspect or obligations of union membership, except as provided in Article III (Union Security) of this Agreement. * * * * (e) Non-seniority list swampers shall be ordered from the Hiring Hall in accordance with the existing rules and practices. The Employer provides the Union with a list of names of persons the Employer considers acceptable for casual swamper work covered by subsection (e), above. In those instances wherein Employer requires casual swampers to augment or supplement regular employee-swamper crews with validated seniority, the Union customarily dispatches such name-listed casuals through its hiring hall on a preferential basis. That preference is for valid business reasons (experience, reliability, and known capability), and is found to be proper. In those instances wherein more casuals are needed than can be supplied from the list of acceptables provided to the Union by the Employer, the Union sends casuals from its general pool of immediately available persons who have registered their names at the hiring hall for general work assignment. On July 2, 1973, Mr. James Allen, Teamsters foreman for the Employer, telephoned Mr. Louis Gunn, hiring hall dispatcher for the Union, and requested casual swampers for work then available.' The number requested was not available from the "acceptable" list provided to the Union by the Employer, hence the remaining casuals (five) were I The number requested is in dispute It could have been 19 or 22 or possibly some other total In any event, the discrepancy is immaterial. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obtained from the general pool of hiring hall workers then present and available. The total number of requested casuals was sent to the Employer, and there all of those dispatched were assigned work. B. The Dispute Mr. James Cowan, the Charging Party, alleged that he is on the list of casual swampers acceptable to the Employer; he registered for work at the Union's hiring hall July 2, 1973; the Union's hiring hall dispatcher called for casual swampers on said date , limited to those casuals who had picketed on behalf of the Western Conference of Teamsters at Coachella Valley, California; and Cowan was unlawfully prevented from obtaining work on said date because of the limitations thus imposed by the Union, acting for and on behalf of the Employer. C. Pertinent Testimony James Cowan, hereinafter referred to as Cowan, testified that he has been a member of Local 692 since 1958, and that he worked for the Employer as Teamsters foreman from 1959 through 1962. After working elsewhere in the interim, he returned to the Employer in September or October 1972 as a casual swamper. Cowan testified that he reported to the Employer directly for about 2 months, but that, commencing in December 1972, he was required to report to the Union's hiring hall for dispatch to the Employer (except for one short period of time). Cowan stated that he was on the list of persons given by the Employer to the Union as acceptable for work as a casual swamper. Cowan testified that he reported to the hiring hall about 7:30 a.m. on July 2, 1973, and registered with Louis Gunn, the dispatcher, for work. Cowan stated that the dispatcher, hereinafter referred to as Gunn, announced on the loudspeaker about 8 a.m. "all men who picketed in Coachella, please come to the window." Cowan said Gunn handed out about 18 or 19 cards for work, 1 of which he saw to be for swamper work at the Employer's dock site. Cowan said he asked Gunn about 8:10 a.m. why he was not dispatched to the Employer, and Gunn replied that James Allen, foreman at the Employer's, had requested "all of the men that picketed Coachella Valley." Cowan testified that he talked with James Allen, hereinafter referred to as Allen, about 8:20 a.m. the same day and that Allen denied asking for pickets-he said he merely asked the dispatcher to send 22 men. Cowan stated that he knew some of the men dispatched to the Employer, and knew they had picketed at Coachella. Gunn testified that his customary practice, as hiring hall dispatcher, is to provide casual swampers for the Employer first from a preferred list provided by the Employer, and second from the regular work list if preferred names are exhausted. He stated that he departed from customary practice July 2, 1973, after receiving a call from Allen to "send 22 men down there and send the Coachella Boys first." Gunn testified that he made up 22 cards, went to the public address system, and said "all Coachella boys come to the front." He said he first dispatched only "Coachella Boys" "as far as I knew" and then dispatched the remainder of five from his regular list of casual workers, as instructed by Allen. Gunn testified that Cowan was on the preferred (acceptable to the Employer) list, but that Cowan did not report for work and register July 2, 1973. He stated that he talked with Cowan later that morning after workers were dispatched for the day. Gunn testified that, of those men listed as "preferred" or "acceptable" by the Employer, some picketed at Coachella and some did not, but that it was his understanding the morning of July 2 that he dispatched only picketers, although he later discovered such was not the case. Allen testified that he is Teamsters foreman for the Employer and is in charge of requesting casual swampers from Local 692. He said he ordered 19 men July 2, 1973, but that he mentioned nothing about picketers when he called Gunn. He said he put all 19 men to work, and that he hired 1 man that same day who was not dispatched by Gunn, but who was on the preferred list. Analysis and Conclusions Counsel for Respondent Employer raised at hearing and discussed in his brief the question of possible deferral to arbitration under the Collyer doctrine,2 and argued that deferral is required by the facts of this case. However, the basis for argument is vague and not persuasive. Respon- dent's brief concludes, in general manner, that the arbitration clause of the contract between the Employer and the Union is broad and should be used to settle this dispute; it also argues, again generally, against one of the frequently accepted reasons for not deferring under Collyer (disinterest of the union), without mentioning any other applications of the doctrine. Counsel for the General Counsel referred in his brief to the same reason for not deferring (union disinterest), but concluded that such reason, as expounded in Kansas Meat Packers,3 is applicable in this case. Kansas Meat Packers differs somewhat from this case in that, in the former, there was clear and explicit antagonism between the charging parties and the union's business agent, as well as between the charging parties and the respondent employer. No such antagonism is shown in this case and, further, the hiring hall dispatcher (Gunn) readily testified that he called for Coachella picketers before calling for other casual workers. The Union does not rely upon Collyer, nor does it argue for deferral. Thus, Respondent Employer seeks arbitration, Respondent Union remains silent on this issue, and the Charging Party seeks Board resolution of the issues without arbitration. The Collyer issue was first raised at close of hearing-the subject was not litigated. The contract between Respondent Employer and Res- pondent Union includes provisions for adjusting griev- ances, and for arbitration, when differences arise between the Company and "an employee." "Employee" is not defined in the contract; the General Counsel contends that 2 Collyer Insulated Wire, 192 NLRB 837 1 198 NLRB No 2. STANDARD FRUIT AND STEAMSHIP COMPANY 125 Cowan is not an employee, and that, therefore, deferral would be improper. Although Cowan was not an "employee" in the usual sense of the word, since he only worked occasionally and even those occasions were of his own choosing, he certainly would be an "employee" on any particular day on which he worked. He did not work July 2, 1973, as a result of which he was not an "employee" on that day. Whether or not he would be precluded from claiming access to arbitration provisions of the contract between the Employ- er and the Union, if his failure to work was caused by the Employer's and the Union's discrimination, is a nice question. However, that question need not be answered, in view of the finding hereinbelow that Cowan did not register for work on July 2, 1973. The contract provides, inter alia, for adjustment of grievances through four steps and for arbitration; the union and its business agent are integral parts of all steps and the arbitration proceedings. Although the facts of the Kansas Meat Packers case differ from the facts of this case so far as union antagonism is concerned, the underlying principle of Kansas Meat Packers is applicable.4 Resolution of the controversy herein would be in the hands of a board of three members, one of which would be a union representative and one of which would be agreed on by the union representative and the employer representative. Clearly Cowan's cause would be jeopardized in such a proceeding, since he had filed charges against the Union and the Employer based on the same facts. Deferral for arbitration herein would be improper and is declined. Employer A. Counsel for Respondent Employer first contends that Cowan did not report and register for work on July 2, 1973, and that, therefore, there was no discrimination or violation of the Act. Gunn testified that Cowan did not report and register; Cowan testified that he did. Both Gunn and Cowan were credible witnesses, and resolution of the difference in their testimony on this point must depend upon some factor or factors other than just assessment of individual credibility. Gunn testified from his July 2 dispatch list. Testimony shows that the hiring hall was a very busy place that morning, with about 64 or 65 men seeking casual employment at 8 a.m. After the men were dispatched to the jobsites, about 8:10 a.m., Gunn and Cowan talked about Cowan's wanting to work that morning. Cowan testified he arrived at the hall about 7:30 a.m. Cowan testified that Gunn asked for Coachella picketers at 8 a.m., with which testimony that of Gunn's is not inconsistent. It is possible that Cowan did, in fact, stop by the window where Gunn was busily engaged in working with 64 or 65 names. However, it is also possible that Cowan negligently failed to make certain that Gunn saw him and accepted his registration . Testimony of all witnesses is clear on the procedure, whereby a registrant announces his presence at the dispatch window, after which the dispatcher records the name of the registrant for possible call later in the morning. It would be easy in the noise and bustle of the early morning for either Cowan or Gunn to make a mistake resulting in failure of Cowan's name to be on the list. Further, it is possible that Gunn simply failed to record Cowan's presence, through inadvertence or haste. In any event, the discrepancy is resolved in favor of Gunn's version because (1) Gunn testified from his dispatch list prepared at the time of the incident, (2) Gunn's testimony is not inconsistent with the record and the circumstances, (3) Gunn's demeanor and testimony were those of a forthright and honest witness, and (4 ) no reason was shown for Gunn's intentionally failing to register Cowan. The testimony and record show that Gunn did not, on July 2, 1973, know who did or who did not picket at Coachella. That knowledge was acquired later. Having concluded that Cowan was not registered for work on July 2, 1973, it is necessary to find, and it is hereby found, that Cowan lost no work or pay on July 2, 1973, because of discrimination by either Respondent Employer or Respondent Union, or by both of them. B. Counsel for Respondent Employer next contends, in his brief, that an employer "may pick and choose" its employees "absent any discrimination," and he cites Pacific Maritime Association, 172 NLRB 234 (1968),as his authority. The charges herein are based on an alleged request by employer made to the hiring hall dispatcher to supply casual workers, with preference to be given to persons who engaged in picketing activities on behalf of the Western Conference of Teamsters at Coachella Valley, California. Employer's Teamsters foreman and representative for the purpose of work crew maintenance is James Allen, who has been such foreman approximately 2 years. Allen testified that he requested Gunn to send 19 (or 22) casual swampers to Employer's worksite on July 2, 1973, but that he said nothing about picketers. That testimony is contradicted by Gunn, who was a credible witness; his version is accepted. However, the question still remains: Was that request by Allen, in and of itself, a violation of the Act? The question is thus narrowed of necessity, since no discrimination is shown by the record. Allen was not discriminated against-he was not registered for work. Those persons who registered July 2 and were dispatched were put to work whether or not they had picketed at Coachella; at least five men who did not picket are shown by the record to have answered Gunn's call to the window, albeit contrary to Gunn's preference instructions, and all five were sent to Allen and put to work by him. One other man, who was on Employer's acceptable list but who had not picketed, was hired by Allen "off the street," without going through the hiring hall. The General Counsel did not establish that anyone was discriminated against on July 2, by either Respondent or both of them. In view of the record thus made, the question above must be answered in the negative, so far as Section 8(a)(3) is concerned. The essence of Section 8(a)(3) of the Act is discrimination. A simple request, or a thought, in and of itself without action being taken thereon, cannot constitute 4 A recent, and relevant , application of this principle appears in Laborers' International Union of North America , Local Union No. 127, AFL-CIO (A & E Construction, Co.), 206 NLRB No. 128. 126 DECISIONS OF NATIONAL LABO?. RELATIONS BOARD a violation of Section 8(a)(3). It is found that Respondent Employer did not violate Section 8(a)(3) as charged. However, it is found that the Employer did request that the Union discriminate against Respondent's employees by preferential hiring of casual workers who picketed on behalf of the Western Conference of Teamsters at Coachella Valley, California, resulting in such preferential action by Union in violation of Section 8(b)(2) and (1)(a) of the Act. It is found that such request and its resultant discrimination by the Union constituted an interference with, restraint or coercion of, employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. Union A. The Union is in a somewhat different position. Section 8(b)(2) of the Act reads, in part, that it shall be an unfair labor practice for a labor organization or its agents "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3)." As shown above, no discrimination resulted from Allen's request made to Gunn. Again, a question remains-did Respondent Union, through its dispatcher Gunn, attempt to cause Respondent Employer to discriminate against anyone? Allen denied that he requested Gunn to give first preference to Coachella picketers, but as discussed above, his version of his telephone conversation with Gunn is not credited. Gunn's version is credited, and Gunn testified that Allen requested priority for picketers. If matters had stopped there, without further action, Respondent Union would not have violated the Act. However, Gunn testified that, not only did he ask that Coachella picketers come to the window first, he thought at the time that all who came to the window were former picketers. The fact that some who came to the window actually had not picketed, and the fact that some nonpicketers may have been dispatched following exhaustion of the "acceptable" list, is not material. Gunn's attempt to discriminate stands clear and unequivocal-he believed, at the time, that he was giving preference to picketers, and he did all he could to give such preference. An unsuccessful attempt is, nonetheless, an attempt. B. The protracted, bitter, and sometimes violent labor and union quarrels in Coachella Valley during 1973 are common knowledge. Daily stones were disseminated nationally by the press, radio, and television. Knowledge is taken of that activity and the fact that the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America was deeply involved. It is clear from the record herein that Respondent Union dispatched casual workers from the hiring hall July 2, 1973, with priority first given to union members who had picketed at Coachella. Regardless of the nature or cause of the dispute at Coachella, and regardless of whether or not the Union intended that its priority treatment of picketers would encourage union membership, that treatment would in fact have the effect of encouraging such membership. Coachella is small and isolated and is in the hottest portion of the Southwest Desert. Picketing there, and during the acrimonious dispute involved, was an excellent test of union loyalty. It would be difficult to find a better illustration of the close bond between a union and its members. Publicly announcing at a hiring hall, crowded with both union members and nonmembers present, that a reward was, in effect, being given for meritorious services rendered to the union certainly has the effect of encourag- ing membership. The Supreme Court of the United States stated in Radio Officers Union v. N. L. R. B.: 5 Encouragement and discouragement are "subtle things" requiring "a high degree of introspective perception." Cf. Labor Board v. Donnelly Garment Co., 330 U.S. 219, 231 [19 LRRM 2317]. But, as noted above, it is common experience that the desire of employees to unionize is raised or lowered by the advantages thought to be attained by such action. Moreover, the Act does not require that the employees discriminated against be the ones encouraged for purposes of violations of §8(a)(3). Nor does the Act require that this change in employees' "quantum of desire" to loin a union have immediate manifestations. D. Respondent Employer states in its brief "In short, there is nothing wrong with company and union agreeing that casual employees will be routed through the union hiring hall ..." That is correct, so far as it goes. However, it is wrong for an employer to request that its union agent discriminate through its hiring hall against nonpicketers, and for a union to discriminate against nonpicketers, thereby encouraging union membership, as in this case. It is found that Union did so discriminate, in violation of Section 8(b)(2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Employer as set forth in section III, above, and the activities of Respondent Union occurring in connection v ith the operations of Respondent Employer 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 REMEDY Having found that Respondent Employer has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act and having found that Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act, it will be recom- mended that the Board enter a cease-and-desist order. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent Standard Fruit and Steamship Compa- 5 347 U.S 17(1954) STANDARD FRUIT AND STEAMSHIP COMPANY ny is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent General Truck Drivers, Chauffeurs & Helpers Local 692, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Standard Fruit and Steamship Compa- ny violated Section 8(a)(1) as alleged in the complaint, but did not violate Section 8(a)(3) as alleged in the complaint and said Respondent did interfere with, restrain, and coerce its employees in the exercise of rights guaranteed in Section 7 of the Act. 4. By causing or attempting to cause Respondent Employer to discriminate against employees in violation of Section 8(a)(3) of the Act, through hiring hall preference of persons who picketed on behalf of the Western Conference of Teamsters at Coachella Valley, California, Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 5. The aforesaid unfair labor practices described in paragraphs 3 and 4, above, are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 A. It having been found and concluded that Respon- dent, Standard Fruit and Steamship Company, has not engaged in discrimination in violation of Section 8(a)(3) of the Act as charged, that allegation of the complaint is dismissed in its entirety. However, it having been found and concluded that said Respondent Employer did interfere with, restrain, and coerce its employees through Respondent Union in the exercise of rights guaranteed in Section 7 of the Act, thereby violating Section 8(a)(1) of the Act, Employer shall: 1. Cease and desist from: (a) Requesting that Respondent Union discriminate against Employer's employees through hiring hall prefer- ence of persons who picketed on behalf of the Western Conference of Teamsters at Coachella Valley, California. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. 2. Take the following affirmative action wh' 'i it is found is necessary to effectuate the purposes of the Act: (a) Post at its Long Beach, California, operation and facilities, copies of the attached notice marked "Appendix A."7 Copies of said notice on forms provided by the 6 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 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 127 Regional Director for Region 21, after being duly signed n y an authorized representative of Respondent Standard Fruit and Steamship Company, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. B. Respondent, General Truck Drivers, Chauffeurs & Helpers Local 692, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause American Fruit and Steamship Company, its agents, successors, or assigns, to discriminate against its employees in violation of Section 8(a)(3) of the Act, through hiring hall preference of persons who picketed on behalf of the Western Conference of Teamsters at Coachella Valley, California. (b) In any other manner causing or attempting to cause Respondent Employer, its agents, successors, or assigns, to discriminate against its employees in violation of Section 8(a)(3) of the Act. (c) Restraining or coercing employees of Respondent Employer, its successors or assigns, in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is found is necessary to effectuate the policies of the Act: (a) Post in conspicuous places in its business office, hiring hall, and meeting places, including all places where notices to its members customarily are posted, copies of the attached notice marked "Appendix B."8 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notices to the Regional Director for Region 21, for posting by Respon- dent Employer at all locations where notices to employees customarily are posted, if said Respondent is willing to do so. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7 In the event that the Board's Order is enforced by a Judgment of a 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 " 8 See In 7,supra