International Longshoremen's Association, Local 814

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 814 459 International Longshoremen's Association, AFL-CIO, Local 814 (West Gulf Maritime Association) and John C. LeBlanc, Sr. Case 23-CB-1499 December 10, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On August 16, 1974, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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 her recommended Order as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent , International Long- shoremen's Association, AFL-CIO, Local 814, Orange, Texas, its officers, agents, and representatives, shall take the action set forth in the said recommended Order -as so modified: 1. Add the following as paragraph 2(b) and reletter the subsequent paragraphs accordingly: i We agree with the Administrative Law Judge that the evidence pre- sented herein compels the inference that Anthony Phillips, Respondent's president and "gang" foreman, was fully aware prior to the time he had filled the openings on his gang that LeBlanc was seeking work in addition to the reasons set forth by the Administrative Law Judge, we find support for such 6 finding in Phillips' testimony at the hearing that LeBlanc was one of several men who rushed toward him upon his arrival at the hiring hall and that Phillips considered such conduct to signify a desire to be referred for employment 2 While we agree with the Administrative Law Judge that it is unnecessary to rely upon Miranda Fuel Company, Inc, 140 NLRB 181 (1962), enforce- ment denied 326 F 2d 172 (C A 2, 1963), in finding a violation herein, we do not adopt her discussion concerning the Board 's past application of the rule in that case 3 Contrary to the Administrative -Law Judge, we find no circumstances presented herein which warrant a departure from the remedy we cus- tomarily apply in cases of this nature Accordingly, we shall modify her recommended Order by requiring that Respondent also notify the West Gulf Maritime Association and the complainant, in writing, that it has no objections to referring the latter for employment "(b) Notify West Gulf Maritime Association and John C. LeBlanc, Sr., in writing, that the Respondent has no objections to referring him for employment; also notify the above-named, individual, in writing, that henceforth it will not coerce or restrain him by unlaw- fully infringing upon the rights guaranteed him by Sec- tion 7 of the Act." 2. Substitute the attached notice for that of the Ad- ministrative Law Judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a trial in which the Union and the General Counsel of the National Labor Relations Board par- ticipated and offered evidence, it has been found that we violated the Act. We have been ordered to post this notice and we intend to abide by the following: WE WILL NOT discriminate against John C. Le- Blanc, Sr., or any other employee, because he has criticized or may hereafter criticize our methods of operating our hiring hall. WE WILL make John C. LeBlanc, Sr., whole for any loss of pay he suffered as a result of the dis- crimination practices against him when we refused to refer him to work. WE WILL refer John C. LeBlanc, Sr., for employ- ment in a nondiscriminatory manner. WE WILL notify West Gulf Maritime Association and John C. LeBlanc, Sr., in writing, that we have no objections to referring him for employment, and WE WILL notify him, in writing, that we will not coerce or restrain him by unlawfully infringing upon the rights guaranteed him by Section 7 of the Act. WE WILL NOT in any like or related manner re- strain or coerce employees in their exercise of rights guaranteed by Section 7 of the National Labor Relations Act. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, LOCAL 814 DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Administrative Law Judge: Pursuant to a charge filed on March 29, 1974,1 by John C. LeBlanc, Sr., against International Longshoremen's Association, AFL-CIO, Local 814, a complaint was issued on May 31, alleging that Respondent has discriminatorily operated an exclusive hiring hall for referral of employees to employer "Except as otherwise specified, all dates are in 1974 215 NLRB No. 86 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of West Gulf Maritime Association (referred to as "Association" or "Maritime") and refused to refer LeBlanc for employment because he said he intended to complain to the National Labor Relations Board and to the Union's Dis- trict, all in contravention of Section 8(b)(1)(A) and (2) of the Act.' Pursuant to due notice, a hearing was held before me in Orange, Texas, on July 9, 1974. All parties were present or represented and were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. The parties waived oral argument. Posthearing briefs have been filed on behalf of Respondent and the General Counsel.' Upon the entire record,' together with careful observa- tion of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS The complaint alleges, the answer admits, and I find that: A. West Gulf Maritime Association , a Texas corporation with its principal office and place of business in Houston, Texas ("Association" or "Maritime"), is a trade association some of whose members are engaged in the business of load- ing and unloading cargo on and from deep sea vessels depart- ing from and arriving in various ports in Texas and Louisiana, including Orange, Texas. The Association exists for the purpose, inter alia, of negotiating and administering collective-bargaining agreements for and on behalf of its em- ployer-members with South Atlantic and Gulf Coast District, International Longshoremen's Association, AFL-CIO ("District"), and its affiliated unions, including Respondent Local 814. During the past 12 months, a representative period, employer-members of the Association collectively, in the course and conduct of their business, furnished stevedor- ing services valued in excess of $500,000 to steamship compa- nies operating vessels in interstate and foreign commerce. The employer-members of the Association and the Associa- tion are, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. Respondent and the District are, and have been at all times material herein , labor organizations within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES Pursuant to the "Deep Sea and Coastwise Longshore and Cotton Agreement," executed by the Association and the District on behalf of their respective members, Respondent" operates an exclusive hiring hall for the employment of long- shoremen in Orange, Texas. Under the same collective-bar- 2 National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151, et seq.). 3 The General Counsel's brief has been accepted and considered even though it was due by August 2 and was not reviewed until the afternoon of August 6, 1974. 4 As corrected in minor respects. gaining agreement,Local 325 of the ILA operates an exclu- sive hiring hall in Beaumont, Texas. LeBlanc, the Charging Party, is a member and recording secretary of Local 325. The immediate occasion for the filing of the charge in this case was LeBlanc's failure to obtain work at the Orange port on March 6.5 A. Operation of the Hiring Hall 1. The evidence The complaint alleges that "[s]ince on or about October 1, 1973," which is about 6 months before the charge was filed, Respondent has operated its hiring hall under "a practice whereby members of Respondent are accorded preference in assignment of longshoremen jobs over nonmembers of Re- spondent and nonmembers of Respondent are accorded pref- erence in the assignment of longshoremen jobs over members of affiliated unions of the District, including" Local 325. At the outset it should be noted that the foregoing allega- tion appears to be an accurate summary or restatement of a portion of a pretrial affidavit given to a Board agent by An- thony Jeff Phillips, Respondent's President and foreman of one of the three longshoremen gangs staffed through Respon- dent's exclusive hiring hall at Orange, Texas. This portion of Phillips' affidavit was read into the record by the General Counsel during his examination of Phillips under Rule 43(b) of the Federal Rules of Civil Procedure. On the face of it, the affidavit would appear to establish an unlawful preference of Respondent's members over nonunion employees. However, it is immediately noteworthy that the secondary "discrimina- tion" alleged appears anomalous; at least at first blush it' appears unusual that any local union might discriminate in favor of nonunion employees as against members of affiliated, sister locals. It is, therefore, crucial to analyze Phillips' tes- timony in its entirety. Superficially, Phillips' testimony concerning his order of priority in assigning jobs was somewhat confused, internally inconsistent and in conflict with his affidavit. However, care- ful listening to and observation of the witness, followed by close study of the transcript, lead me to conclude that the confusion and apparent inconsistencies in Phillips' testimony stem from deficiencies in Phillips' ability to express himself rather than from any design to mislead or conceal. Phillips testified concerning his own method of operating. In the absence of any contrary testimony, it is reasonable to infer that the operational methods of all three -gang foremen were the same, particularly in view of Phillips' position as, president of the Union. Carefully weighing the evidence, i 5 The parties appear to be in hopeless disagreement as to whether the event precipitating this case occurred on February 6 or March 6. The charge and complaint allege February 6; Respondent's witness, Phillips, apparently set it in March and that is the date used in Respondent's brief. The March date seems the more likely because a letter by LeBlanc to the District complaining of the incident is dated "3-9-74" and contains LeBlanc's claim for only about 2 days' pay. The charge was not filed until the end of March and the testimony suggests that LeBlanc would not delay for well over a month registering his complaint. Finally, with the burden of proof on the General Counsel, in the absence of clear evidence requiring a contrary finding, I shall assume the later of the two dates since that choice will restrict the remedy if a violation is found. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 814 find that Respondent's hiring hall' was administered in the following manner. At the Orange port there are three more or less permanent gangs, headed, respectively, by Robert Phillips, gang foreman of gang No. 1; Noan Hadnot, Jr., Local 814 business agent and foreman of gang No. 2; and Anthony J. Phillips, presi- dent of Local 814 and foreman of gang No. 3. Working gangs vary in number, generally apparently ranging between 15 and 20 men each. The day or evening before a job is scheduled, the stevedor- ing employer calls the Union (or the gang foreman) and states which gang(s) is (are) to work and how many men there are to be in each gang(s). Such scheduled operations are then posted on a blackboard in front of the Union's hiring hall. Also, the foreman of each gang that is scheduled to work generally personally gets in touch with the "regular" mem- bers of his gang. Phillips testified that his "regular" gang consists of, appar- ently, some 8 to 10 "members" of the Respondent Union and possibly around 6 "regulars." These so-called "regulars" have consistently worked in his gang, several 'of them for many years, but have never "joined" the Union; i.e., they have never applied for membership and have never paid their $75 initiation fees.6 Phillips testified that he considered these "regulars" as "members," even though they had not formally joined the Union. Although he was not fully articu- late, his testimony as a whole indicates that in this context he used the word "member" as referring to the gang; thus, these nonunion members were deemed to be gang "members" be- cause they regularly worked in Phillips' gang, gang No. 3. Phillips further testified that if there were not enough "regulars" available to fill the announced needs, the next persons in line for hiring were men in Orange who had previ- ously worked on the gang with some frequency but no regularity. Next in line were persons from other nearby ports, such as Beaumont, Port Arthur, and Lake Charles. These persons were recruited by Respondent's business agent's ad- vising the business agents of the sister locals in these other ports of the needs and job availabilities in Orange for the next day. LeBlanc maintained that at or about the time here in- volved, i.e., March 1974, the Orange gang foremen had begun to "make up their books" (i.e., assign jobs) the night before the scheduled work, instead of waiting for the shapeup at the hiring hall during the half hour or so before the actual com- mencement of the work, as had been the uniform prior prac- tice. In this way, according to LeBlanc, the out-of-towners no longer had a fair opportunity to obtain employment in Orange. According to LeBlanc, it was "illegal," apparently as a violation of the rules of the International Union, to "make up the book" in advance of the shapeup period. When ques- tioned concerning the basis of the claimed impropriety of making up the book the night before the job, LeBlanc pointed to the hiring hall article in the relevant District-Association collective-bargaining agreement. He testified that, so far as he knew, there was no other governing document, such as a 6 Phillips testified that after the events here involved these "regulars" had applied for membership and as of the date of the hearing were in "applicant" status This line of testimony was not pursued 461 union constitutional provision or bylaw. The collective-bar- gaining agreement, which was received in evidence, does not contain any relevant provision controlling the operational methods of hiring halls. Thus, so far as the present record discloses, there is no express or clear basis for LeBlanc's claim that it is "illegal" for the gang foremen to assign jobs the night before the jobs involved However, everybody involved in this case apparently has acted on the assumption that such con- duct is improper. In its brief, Respondent denies that its gang foremen made up their books the night before any jobs and never suggests a defensive contention that it would be per- missible for the foremen to do so. Although Phillips denied that he ever made up his book in advance, his denial is essen- tially unrealistic. As previously indicated, he expressly testi- fied that when a stevedore company informs him of a job to be done the next day, he takes affirmative steps to communi- cate with his "regular" gang members. Although he denied that there are any mutual commitments made in such ad- vance conversations, it cannot be questioned that regular gang members so advised of work the next day understand that they are to work and, conversely, Phillips expects them to show up unless they indicate that they will not be available It cannot realistically be said that the gang foreman does not make up his book at that time merely because, as Phillips indicated, he may not physically write down the names then and there. Indeed, it is clear that the book is made up at that time, since it also appears that no notice is sent to the business agents of other locals unless there are not enough "regulars" and Orange "irregulars" available to meet the stevedore's specific requirements for a particular job. LeBlanc's uncon- tradicted testimony indicates that when each of the three gang foremen appeared at the shapeup on March 6 the names of the people who were to work had already been written in the book.' Phillips maintained, and Respondent contends in its brief, that jobs are allotted strictly on a seniority basis. At the time here involved, Respondent did not have in effect any formal- ized seniority system. However, Phillips testified that he had assumed the presidency of the Local in January 1974,8 and at the time here involved he was in the process of instituting such a system, which apparently has since been adopted. Under that system, seniority is based on time worked in the Orange port. Union dues (apparently for the Local, the Dis- trict, and the International) are checked off and payments are made into the union health and welfare funds. Records of these payments are maintained by the Association, which makes information therefrom available to the Union locals. Such information obviously shows relative seniority. 2. Discussion and conclusion Phillips' testimony as a whole clearly establishes that Re- spondent's hiring hall was operated in a manner designed to 7 In its brief Respondent argues that an inference adverse to the General Counsel should be drawn from his failure to call the other two gang foremen, Robert Phillips and Hadnot, as witnesses This contention is, of course, without merit since these persons were named in the complaint as agents of Respondent and that allegation was admitted in the answer Clearly, therefore, they were adverse and were within Respondent's rather than the General Counsel's control 8 He also testified that he had been president at an unspecified time in the past 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD follow seniority. "Regular" gang members, whether "mem- bers" of Respondent or not, were given first call on all work available at the port. Next came local (i.e., geographically local) people who had frequently worked through the Orange hiring hall. There is no reason to doubt Phillips' statement that such people generally had more "seniority," i.e., had worked more hours in Orange than out-of-towners had. Phil- lips testified that an out-of-towner who had previously worked in his gang would be hired in preference to an Orange resident who had not previously worked for Phillips. It is undisputed that neither LeBlanc nor any other member of Local 325 (the Beaumont local) had worked enough in Orange to acquire any seniority status. Nothing in the testimony of LeBlanc or Anderson B. Cole- man, president of Local 325, the General Counsel's only witnesses, actually contradicts Phillips, either expressly or impliedly. Indeed, as shown below, LeBlanc's and Coleman's testimony shows that Local 325 members generally had no difficulty securing work through Respondent's hiring hall when there were more openings than could be filled by "regu- lar" gang members. And, except for the verbally infelicitous statement in Phillips' pretrial affidavit, there is no evidence whatsoever that Respondent's members were given prefer- ence over nonmembers with comparable seniority. Accordingly, on all the evidence, I find and conclude that the General Counsel has failed to establish that Respondent operated its hiring hall pursuant to a discriminatory practice.9 B. Discrimination Against LeBlanc 1. The evidence LeBlanc testified that on the evening of February 5,10 he was informed by the business agent of Local 325 that there would be work available the next day in Orange, since three 19-member gangs were to be working there. Accordingly, the next morning LeBlanc, accompanied by three other members of Local 325, drove from Beaumont to Orange, arriving at the Local 814 hall at about 4:45 a.m. Around 7 a.m. Robert Phillips, foreman of gang No. 1, arrived. When LeBlanc and his colleagues asked for work, they were informed that Robert Phillips' gang was already full. Shortly thereafter Noan Hadnot, Jr., foreman of gang No. 2 and Business Agent of Local 814, arrived. When the four Local 325 men asked him for jobs, he also replied that his book was filled up but he would check into the matter. He then gave jobs to some Local 325 members other than Le- Blanc and his comrades. While LeBlanc and his three com- panions waited for the third gang foreman to arrive, LeBlanc and Hadnot "had a few words." LeBlanc asserted that Had- not "wasn't supposed to make up the book at nighttime" but was required to wait until the morning of the job to hire people. Hadnot insisted that LeBlanc could not tell Hadnot 9 As previously noted, it does not even affirmatively appear that thg operations of the hiring hall contravened any provision of the collective, bargaining agreement or of any intraunion requirement. In any event, even if such showing had been made, it would not in itself establish an unfair labor practice within the purview of Sec. 8(b) of the Act. 10 See fn. 5, supra. how to write up his book. LeBlanc said that he was going to write to the District and to the Labor Board. Hadnot replied that LeBlanc could "write anybody [he] wanted to," but that "was not going to change the situation of the book." Soon Anthony Jeff Phillips, Respondent's president and foreman of gang No. 3, showed up. All the waiting men, including LeBlanc, rushed up to Phillips. According to Le- Blanc, Phillips initially said that his book was filled but when the men started to complain, Phillips said he had four open- ings and proceeded to give jobs to four members of Local 325, including Anderson B. Coleman, president of Local 325, but not including LeBlanc. Coleman testified that when he first asked for a job that morning Jeff said he thought he had an opening and would have to check his records. Then a car drove up and Phillips hired the two people in it. Then Phillips hired Coleman and three other members of Local 325. Le- Blanc again complained and said he was going to write to the District and to the Board. As Hadnot had done, Phillips replied that LeBlanc was free to go to the District, but he could not tell Phillips how to write his book. LeBlanc thereupon returned to the Local 325 hall, where he spent the rest of the day. Around noontime, on the job, Phillips told Coleman that three additional men were needed to start working at 1 p.m." At Phillips' request, Coleman drove to Beaumont to see if he could get three men. Coleman testified that Phillips told him to "bring anyone except" LeBlanc and said that he "would work shorthanded-[he] would work [himself] before [he] would work with" LeBlanc. Coleman went to his home in Beaumont, from where he telephoned the Local 325 hall. LeBlanc answered the phone. Pursuant to Coleman's request, LeBlanc checked with the four or five men then at the hall and reported back to Cole- man that none of them wanted to work at 1 p.m. that day. Neither LeBlanc nor Coleman indicated that LeBlanc volun- teered to work at that time or that Coleman then revealed Phillips' instructions not to bring LeBlanc. LeBlanc's tes- timony reveals that he first learned of Phillips' instructions later that day, when the men returned to the Local 325 hall after finishing work in Orange. It was then that both Coleman and another Local 325 member reported that Phillips had said, "don't never bring LeBlanc to Orange to work no more." Phillips' version of the encounter with LeBlanc on March 6 is somewhat different from LeBlanc's. According to Phil- lips, LeBlanc did not ask for a job but immediately started to complain about the way Phillips made up his book. Phillips insisted that it was not up to LeBlanc to tell the Local 814 representatives how to write their books. According to Phil- lips, LeBlanc merely stood there complaining and saying he was going to write to the District and the Board while Phillips gave the remaining available jobs to four District 325 mem- bers. During this time Phillips several times told LeBlanc that, rather than complain about the way Respondent's books were being written, LeBlanc would be better advised simply to try to get a job. Phillips maintained that this latter "ad- vice" constituted an offer of a job that day but LeBlanc did 11 Contrary to the advance announcement that the gangs were to have 19 members, Phillips' gang had only 16 members in the morning. He testified that the stevedoring company had originally ordered only 16 men and later requested an additional 3. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 814 not accept the offer and "didn't say anything about the job until the book was finished."" 2. Discussion and conclusion The complaint alleges that "Respondent refused to con- sider [LeBlanc] for referral through the exclusive hiring hall . . . because [he] informed Respondent he was going to com- plain to the District and the National Labor Relations Board concerning Respondent's hiring hall practices." There is no evidence to support this specific allegation. All the evidence indicates that both Hadnot and A.J. Phillips, Respondent's business agent and president, respectively, reacted to Le- Blanc's threats by saying that he could write to anybody he wanted, but that he could not dictate their methods of operat- ing the Local 814 hiring hall and writing their books. As previously found, the evidence does not establish that Respondent's overall operation of the hiring hall contravened Section 8(b) of the Act. However, the evidence as a whole does tend to establish that Respondent, through A.J. Phillips, and possibly Hadnot, did discriminate against LeBlanc. While LeBlanc himself did not affirmatively testify that he expressly asked A.J. Phillips for a job on the occasion in question, the testimony of both LeBlanc and Phillips war- rants the inference that Phillips knew LeBlanc was there at the hiring hall in Orange for the purpose of obtaining work. Each of the two men was apparently hostilely standing by the literal words of the other and neither was willing to take any affirmative step toward a resolution: LeBlanc complained but apparently refused expressly to ask for work; Phillips, equally "stiff-necked" and angered by what he considered LeBlanc's officious criticism, refused to make the overture of affirma- tively offering one of the jobs which were available and actu- ally given to other members of Local 325. Respondent argues that LeBlanc's failure to volunteer for work at 1 o'clock the afternoon of March 6 indicates that he really was not interested in working but rather was concerned 12 Phillips' testimony in this respect was, in part Q . At the time Mr. LeBlanc spoke to you and when you were putting on the men from Local 325, the same as this Local, did Mr LeBlanc at any time before you completed your gang ask you for a job on your gang9 A Not before I completed it Q. What did you tell him when he was arguing with you about making up your gang, with reference to whether he wants to work or not9 A I told him to get him a job and quit trying to run the Local Q Did you or did you not at that time offer him a job? A Well, yes, I did Q. When you offered him a job, what did he say to you9 A. He was continuing to tell me about he was going to write the District, and he didn't say anything about the job until the book was filled a A Well, he had asked me for a job after he seen the rest of them get a job I said, "You stood up there until I filled up my gang and I don't have any more room." THE WITNESS When LeBlanc come up, he asked me about our proce- dure of working, did we hire men the day before I told him, "J C, I am hinng men now," which I got out my red book and commenced asking who was here and he wasn't I said, "Your best job, sonny, is to get you a job and go to work Don't come here trying to run the Local " JUDGE KLEIN Is that what you mean by your offer of a job9 THE WITNESS. Yes'm. 463 only with complaining. In this connection Respondent points out that there is no evidence that LeBlanc knew of his alleged blacklisting by Phillips at the time the call for additional men came in. However, as the General Counsel observes, LeBlanc had gone to the effort of driving from Beaumont to Orange before dawn, a considerable effort to make for the sole pur- pose of complaining about the operation of the hiring hall. Additionally, other Local 325 members who had unsuccess- fully sought employment in Orange in the morning declined the offers of work in the afternoon and there is no suggestion that they had originally reported for any reason other than to obtain employment. Passing note should be taken of the fact that LeBlanc's union, Local 325, did not file a charge and Phillips testified, without contradiction, that Local 325 President Coleman expressly stated that he would not support LeBlanc because he was in the wrong Harmony between the two sister locals was presumably and reasonably more important to Coleman than intervening in what was essentially LeBlanc's personal problem. Coleman's position, however, is clearly not deter- minative. The problem was basically one of personal animosity be- tween Hadnot and Phillips on the one side and LeBlanc on the other. Board law is not entirely clear as to whether a union's discrimination against an employee for purely per- sonal reasons, unrelated to union considerations, constitutes an unfair labor practice. On the one hand, Miranda Fuel Company, 140 NLRB 181 (1962), enforcement denied 326 F.2d 172 (C A. 2, 1963) apparently answers that question in the affirmative. However, the later case of Local 369, Interna- tional Hod Carriers, etc. (McCloskey Construction Corp.), 147 NLRB 1209 (1969), appears to approve a contrary rule in a somewhat analogous legal situation. And the subsequent his- tory of the Board's Miranda rule has been somewhat check- ered, or at least a bit clouded. But in the present case it is unnecessary to resolve the Miranda issue. The fact remains that the difficulty between LeBlanc and Respondent's representatives, though an in- dividual; personal disagreement, stemmed from union- related matters. Discrimination against an employee because of his complaints about the union's referral methods consti- tutes an unfair labor practice. Laborers' International Union of North America, Local 20 7 (A. & E. Construction Company), 206 NLRB 902 (1973). Phillips' annoyance with LeBlanc was probably under- standable and justified. However, because of his position, Phillips was not at liberty to deny LeBlanc referral to a job for discriminatory reasons. Although the matter is not en- tirely free from doubt, I find that the preponderance of the evidence requires the inference that Phillips was fully aware that LeBlanc was seeking work and Phillips refused to refer him for employment at the time here involved. The remaining question concerns the propriety of such a holding under the present complaint. As previously noted, the evidence does not support the specific allegation that LeBlanc was denied referral because he said he would write to the Board and the District. However, he made such state- ments as part of his complaints against Respondent's opera- tion of the hiring hall and it has been found that the com- plaints as, a whole were the reason for the discrimination practiced against him. The matter was fully litigated and the 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD misconduct found was closely related to the conduct specifi- cally alleged. Accordingly, I find and conclude that the com- plaint is sufficient to support the finding of violation here made. Accordingly, on all the evidence, I find that Respondent unlawfully discriminated against LeBlanc in contravention of Section 8(b)(1)(A) and (2) of the Act. 814 in Orange. Finally, there appears to be no dispute that as of now Respondent's hiring hall is being operated under a systematized, written seniority system which would pre- sumably minimize the scope of possible discrimination on an individual, personalized basis. Upon the basis of the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: CONCLUSIONS OF LAW 1. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. The Association and its members are employers within the meaning of Section 2(2), (6), and (7) of the Act. 3. By discriminatorily refusing to refer John C. LeBlanc, Sr., for employment with members of the Association per- forming stevedoring services at the port of Orange, Texas, on and after March 6, 1974, Respondent has violated Section 8(b)(2) and (1)(A) of the Act and thus committed unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. It has not been established that Respondent has operated its exclusive hiring hall at Orange, Texas, pursuant to a dis- criminatory practice or general policy. THE REMEDY Having found that Respondent violated Section 8(b)(1)(A) and (2) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action deemed necessary to effectuate the policy of the Act. Since it has been found that Respondent has dis- criminatorily declined to refer John C. LeBlanc to employ- ment with members of the Association in Orange, Texas, it will be ordered that Respondent make him whole for any loss of earnings suffered by him as a result of the discrimination against him. Such payment shall be equal to the amount of wages he would have earned but for the aforesaid discrimina- tion. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), together with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It is customary in cases such as this to require that the respondent union notify the employer that the union has no objection to the employment of the employee discriminated against. In the present case, however, such requirement ap- pears unnecessary and inappropriate. First, it appears that, although the collective-bargaining agreement provides that in legal contemplation hiring is actually done by the employers rather than the Union, the gang leaders, who are in effect dual agents, are the only people directly involved. Further, Le- Blanc, as a member of Local 325 of Beaumont, would have very infrequent occasion to seek employment through Local ORDER' 3 Respondent, International Longshoremen's Association, AFL-CIO, Local 814, its officers, agents and representatives, shall: 1. Cease and desist from: (a) Refusing to refer John C. LeBlanc, Sr., to employment or otherwise discriminating against him because he may com- plain about Respondent's method of operating its hiring hall. (b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make John C. LeBlanc, Sr., whole for any loss of pay he suffered as a result of the discrimination against him as set forth in the section of this Decision entitled "The Remedy." (b) Post at its hiring hall, business office, union hall, and any other place where it customarily posts notices to mem- bers, copies.of the attached notice marked "Appendix."14 Notices on forms provided by the Regional Director for Re- gion 23, after being signed by an authorized representative of the Respondent, shall be posted by the Respondent immedi- ately upon receipt thereof in the manner provided above. Notices are to be posted for 60 consecutive days, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Decision, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED insofar as the complaint al- leges unfair labor practices not specifically found herein, it is dismissed. 13 In the event no exceptions are filed as provided by Sec. 102.46 if 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. 14 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."