Southern Stevedoring Co., Inc.

SOUTHERN STEVEDORING COMPANY, INC. Southern Stevedoring Company, Inc. and Nelva Simon International Longshoremen's Association, Local 1516 and Nelva Simon. Cases 15-CA-6 127 and 15-CB- 1801 June 29, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On February 24, 1977, Administrative Law Judge Almira Abbott Stevenson issued the attached Deci- sion in this proceeding. Thereafter, Respondent Southern Stevedoring Company, Inc., hereinafter Southern, and the General Counsel filed exceptions and supporting briefs, Respondent Southern filed a reply brief and Respondent International Longshore- men's, Local 1516, hereinafter Local 1516, filed an answering brief in opposition to the General Coun- sel's exceptions, and the Charging Party and Interna- tional Longshoremen's Association, Local 1410, hereinafter Local 1410, filed an answering brief in opposition to the exceptions of the Respondents.' 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 her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent Southern Stevedoring Company, Inc., Mobile, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of Section 8(a)(2) and (1) not found by the Adminis- trative Law Judge and that the complaint be, and it hereby is, dismissed entirely as to Respondent International Longshoremen's Association, Local 1516. i Respondent Local 1516 filed a motion to stnke brief of Charging Party and Local 1410, contending that Local 1410 is not a party and that the brief was untimely filed. The motion is hereby denied since the bnef has been timely filed and is properly before us as a brief of the Charging Party. 230 NLRB No. 87 DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: This case was heard at Mobile, Alabama, October 21, 22, 27, and 28, 1976. The Charge in Case 15-CB-1801 was filed by Nelva Simon and served on the Respondent Union June 6, 1976; the charge in Case 15-CA-6127 was filed by Simon and served on the Respondent Employer July 8, 1976. The Regional Director for Region 15 issued an order consolidating cases, consolidated complaint, and notice of hearing August 30, 1976, and it was duly answered by the Respondents. The issues are whether or not the Respondent Employer violated Section 8(aX2) and (1) of the National Labor Relations Act, as amended, and the Respondent Union violated Section 8(bXlXA) of the Act on May 28, 1976, by entering into and giving effect to a collective-bargaining agreement covering the Respondent Employer's longshore employees at the Port of Mobile at a time when the Respondent Employer was bound by a collective-bargain- ing agreement with International Longshoremen's Associa- tion, Local 1410, covering such employees, and when the Respondent Union did not represent a majority of its longshore employees; whether or not the Respondent Employer's ship and dock foremen are supervisors; and whether or not the Respondent Employer further violated Section 8(aX2) and (1) by its foremen's interrogating its longshore employees, handing out Local 1516 authoriza- tion cards to its employees, soliciting signatures on such authorization cards, and threatening to deny employment to such employees if they refused to sign the authorization cards. For the reasons detailed below, I find that the Employer violated the Act in part as alleged, but that Local 1516 committed no violations. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent Employer,' I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The Respondent Employer is a Florida corporation engaged in providing stevedoring services at the Port of Mobile, Alabama. During the preceding 12 months the Respondent Employer received revenues in excess of $50,000 for its stevedoring services at the Port of Mobile from transportation enterprises constituting a link in the chain of interstate and foreign commerce deriving a gross revenue in excess of $50,000. The Respondent Employer admits, and I conclude, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent Union waived the filing of a brief and asked that the arguments stated in the Respondent Employer's brief be considered as its own. 609 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. LABOR ORGANIZATIONS The Respondent Union, herein sometimes referred to as Local 1516, and International Longshoremen's Associa- tion, Local 1410, are labor organizations within the meaning of Section 2(5) of the Act. 111. UNFAIR LABOR PRACTICES 2 A. The contract 1. Facts Southern began unloading bananas from ships of Del Monte Corporation at the Port of Mobile in 1974. At that time Samuel Gordon was president and Louis Fitzgerald vice president of Southern. Southern's Mobile operations consist of unloading bananas from a fleet of nine ships one of which calls at the port every week on the average. Seven of the ships are identical, about 380 feet long and carrying a load of 92,000 boxes of bananas; two are identically about 310 feet long and carrying 55,000 boxes. Southern uses a mechanized system by which ship gangs place bananas on vertical conveyors in the hold which bring them to a horizontal conveyor running about 400 feet long the dock parallel with the ship. Dock gangs take the boxes off the horizontal conveyor and stack them in trucks backed up in bays along the conveyor. The unloading operation is headed by Stevedoring Superintendent Michael Shiro and his assis- tant George Pedrick. Samuel Jenkins is employed as ship superintendent or ship foreman, Shelly Jenkins as mainte- nance man, Bill Law as truck spotter, and Samuel Harris (also known as Gus Hall) as timekeeper. On the night before a ship is due to arrive, Shiro posts for the information of the ship and dock foremen the number of gangs to be employed. The usual requirement is three dock and three ship gangs for a total of 180 men for the long ships, and two dock and two ship gangs for a total of 120 for the shorter ships. Vice President Fitzgerald estimated that approximately 30 percent of the men are employed regularly on every ship; 25 percent work about half the ships; and the remaining 45 percent are casual labor. Practically all also work for other employers as general cargo longshoremen. During the year preceding the hearing, Fitzgerald estimated, Southern employed a total of approximately 1,200 men, and since Southern began operating the Port of Mobile, in 1974, approximately 2,000 men. On November 5, 1974, Southern executed a Memoran- dum of Agreement with ILA, Local 1410, and Internation- al Banana Handlers Association (referred to therein as the Union) which had been the contract representative of the employees of Southern's predecessor, Sealand Terminal Corporation. Officers of ILA Local 1410 were Isom Clemon, president (and ILA International vice president); Seymour Irby, first vice president; Matthew Smith, second vice president; Henry Clark, secretary-treasurer; Samuel Jenkins, recording secretary; and Rev. Alex Cook, chaplin. 2 Except where specifically discussed, the evidence is substantially undisputed. As the record does not clearly show the admission of Employer Southern's Exh. 9. it is hereby admitted in evidence. Local 1410's regular membership meetings were held on the first and third Tuesdays of every month. In the Memorandum of Agreement the parties expressed "the further understanding that the terms and conditions of such employment shall later be expressed in greater detail"; adopted the labor contract in effect between Sealand and the Union insofar as it pertained to working conditions and procedures, any collective-bargaining agreement in effect between ILA, Local 1410, and Mobile Steamship Association for wage scales; and agreed to adopt the ILA, Local 1410 - Mobile Steamship Associa- tion pension, welfare, vacation, and fringe benefits plans. The record does not reveal the expiration date of the Sealand agreement, adopted for working conditions and procedures; the Mobile Steamship Association agreement, adopted for wages, carried an expiration date of September 30, 1977. An agreement of participation in the plans was signed by Southern April 19, 1975, and by the trustees of the plans May 23, 1975, providing coverage of Southern's employees effective retroactively to November 1, 1974; Southern made contributions to the plans funds under this agreement, and also checked off Local 1410 dues. Southern Vice President Fitzgerald and Local 1410 President Clemon testified taht Fitzgerald submitted a detailed contract proposal to Clemon in November 1974. According to Fitzgerald, whom I credit,3 Southern and Local 1410 then engaged in negotiations and by May 1975 "had just about arrived" at agreement. Both testified that, before the detailed agreement could be executed, the International Banana Handlers Council, which had author- ity to approve agreements for all banana handling locals of ILA, advised that there could be no further negotiations, and no contract signed, by any ILA local in the banana industry until after the Council's convention was held in July. In any event, on May 9, 1975, Local 1410 President Clemon wrote the following letter to Southern President Samuel Gordon: Please be advised that the Membership of Local 1410 has voted to cancel the Memorandum of Agreement between Local 1410 and Southern Stevedoring Compa- ny unless a new contract is negotiated within sixty days. This is to request that you meet with us at your earliest convenience in order to discuss the terms and conditions of employment of employees of Southern Stevedoring Company at Mobile, Alabama. This letter had reference to a regular membership meeting of Local 1410 held on May 6, 1975. The record does not reveal the number of members present, and there is considerable dispute as to what they voted for. The minutes of that meeting state that motions were carried to appoint three members of "a banana contract committee"; and "that we will work on the present Banana Agreement for sixty (60) days." I credit President Clemon, who was supported by Clayborne Tate, a Local 1410 member, and a plans trustee, that Clemon's letter conformed with the 3 In general, Fitzgerald's demeanor was more open and candid than Clemon's. 610 SOUTHERN STEVEDORING COMPANY, INC. sense of the vote, that the men would work only 60 days longer under the Memorandum Agreement. 4 After Southern President Gordon received the letter, he telephone Clemon and reminded him that no detailed contract could be completed within 60 days because the Banana Handlers Council convention would not be held until after that. He told Clemon that, if Southern could not operate in Mobile after July 6, it would transfer its business to another port as he did not intend to lose a shipload of bananas because it could not get anyone to unload them. Clemon told Gordon he did not want Mobile to lose the banana ships and that there were men who would unload them. The two finally agreed that Southern would bring one ship in after July 6 and see what happened. On June 17, 1975, another regular meeting of the Local 1410 membership was held. The record shows that Local 1410 President Clemon, Vice President Irby, Recording Secretary Samuel Jenkins, and plans trustee Clayborne Tate all were there when the meeting began. The first motion was made by member Thomas McAboy, to suspend the rules so that a vote could be taken on applying for the issuance of a new charter. Member Murray Gardner opposed the motion vigorously and continuously, the meeting became disorderly, and police officers came and took Gardner and President Clemon outside, and an indeterminate number of members followed them. Vice President Irby took the chair after Clemon left, and the motion to suspend the rules was put to a vote and carried. The minutes state that a motion "that a Charter be issued for the Operation and the Banana Operation will not be under ILA Local 1410 Charter any longer," was then carried by a standing vote of 38 to 0. When Clemon returned to the meeting, Irby informed him that the motions had been carried.5 Clemon 6 testified that those who favored the move "knew the 60 days was going to run out, and they wanted to [be] in a position to keep the [banana] work in the Port of Mobile." Member Howard Langer testified he voted for the new charter because he was concerned about work continuing to come into the banana wharf. Vice President Irby said the reason for the application was to become "a party to the Banana Handlers Council," which was unlikely to approve a contract by Local 1410 covering banana work. 4 The balance of self-interest and probability seems to tip toward this conclusion, rather than toward the testimony of Nelva Simon. the Charging Party, and Local 1410 vice President Irby. who testified the membership did not contemplate canceling the Memorandum of Agreement if no detailed contract was negotiated in 60 days. s Because it is so improbable, I do not credit Irby and Simon that the critical motion, as carried, did not contemplate the creation of a separate local distinct from Local 1410. ' I do not credit Clemon's testimony that he was opposed to the new charter from the beginning. George Dixon, now president of Local 1410 and third vice president of the International, credibly testified that Clemon pleaded with him, in New York on June 10, 1975, "to agree for him to get a charter." 7 Although Clemon contended it was his secretary who typed his name and home address on the application, he conceded he was responsible for adding "and such other work that pay longshore wages up and down the river of Alabama." which he said Local 1410 had never been given jurisdiction over. The additional jurisdiction was not included in charter which was eventually issued to the Respondent Local 1516. The next day, June 18, 1975, formal application for a charter requesting "a new Local Union" in Mobile covering "Banana Handlers and such other work that pay general longshore wages up and down the river of Alabama," signed by Shelly Jenkins, Bill Law, Arron Green, Love Carter, T. R. Boggs, Sheffield Malone, Bedford Matthews, Curtis Duncan, Samuel Jenkins, and Matthew Smith, was forwarded to the South Atlantic and Gulf Coast District of ILA. The application asked that the charter be mailed to Isom Clemon at his home address.7 The minutes of the June 17 meeting were read at the next regular meeting of Local 1410, although the record does not show they were adopted. No objection was raised to the charter application until Southern entered into a detailed contract with Local 1516, as discussed belows8 There were no further negotiations between Southern and Local 1410 for a detailed agreement, and the Banana Handlers Council never gave its approval for any such agreement. Clemon's explanation was that by that time "the membership had voted to get the separate charter," and Southern Vice President Fitzgerald was so advised. The record indicates that both officials considered the Memorandum of Agreement canceled after July 6. South- ern nevertheless continued bringing its ships in after the first was successfully unloaded. No changes were made in wages or working conditions, and Southern continued checking off dues for Local 1410 and making its contribu- tions to the plans on the same basis as before.9 On July 18 or 19, 1975, the South Atlantic and Gulf Coast District convention approved the issuance of a charter reactivating an old Local 1516 which had repre- sented banana workers in Mobile many years before, and forwarded the matter to ILA International. Almost 9 months later, on April 7, 1976, ILA International issued to Local 1516, Mobile, Alabama, a charter for the work of banana handlers in the Port of Mobile.10 Clemon received the charter and notified Fitzgerald. Fitzgerald checked with ILA International who informed him that Local 1516 would have jurisdiction over bananas and Local 1410 over general cargo. Local 1516 elected officers: Theodore Boggs, president; Love Carter, vice president; Curtis Duncan, secretary; Isom Clemon, business agent and treasurer. Thereafter, Clemon notified Fitzgerald that the men wished to meet with him the evening of May 27, 1976, at R Some years ago, separate charters were issued covering maintenance employees and employees of the state docks, and those two locals were split off from Local 1410. g On May 26, 1975, 3 days after the Local 1410 trustees signed the trust plans participation agreement on May 23, 1975, three of the union trustees, George Dixon, Henry Clark, and Claybome Tate, sent a letter to Southern nullifying their signatures on the ground that the union membership had never ratified the Memorandum of Agreement with Southern. Apparently this communication was eventually rescinded, and the trustees continued to accept Southern's contributions to the plans. 's The South Atlantic and Gulf Coast District. ILA, has chartered banana locals in Gulf Port, Mississippi; Charleston, South Carolina; Galveston, Texas; and Tampa, Florida. W. H. Hopkins, secretary-treasurer of the District, testified, "It has been the policy of the I.L.A. over the years that when banana [work goes I into a Port to form a Banana Local and issue a Banana Charter. Because of the type of work that's being done on a banana ship rather than a conventional ship which is handling general cargo that longshoreman's [sic I usually handle." 611 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Malaga Inn in Mobile. The following testimony by Fitzgerald is credited: When Fitzgerald arrived, he was greeted by a sea of faces, at least 30 to 35 people, all of whom he recognized at his employees, who had been doing the banana unloading "since we started in 1974." Among them, Fitzgerald recalled specifically officers of Local 1410 - Clemon, president; Irby, first vice president; Matthew Smith, second vice president; Samuel Jenkins, recording secretary; he also recalled Theodore Boggs, president of Local 1516, Bill Law, and Shelly Jenkins. Fitzgerald was told "we are going to have a meeting right now" and the group assembled in the motel banquet room. Fitzgerald then read his contract proposal page by page, a process which took about 2 hours, as many questions were asked and much debate ensued. Fitzgerald was then asked to leave the room while the group decided. After 10 or 15 minutes, Boggs invited him to return, telling him "we have agreed to accept what you are offering," but "we would like our attorney to review this before we sign it." The agreement was signed in the attorney's office the next day, Friday, May 28, 1976. The agreement states on its face that it is between Southern Stevedoring Company, Inc., and ILA Local 1516; that it governs "the payment of wages, working conditions and terms and conditions of employment in connection with the work pertaining to the loading or unloading of all cargoes at the Port of Mobile, Ala."; and that it is effective until September 30, 1977. It contains a dues-checkoff clause, but no union-security or hiring-hall provisions. It was signed by Fitzgerald for the Employer; by T. R. Boggs as president, and Love Carter as secretary, for Local 1516; and by Isom Clemon for the ILA. It is undisputed that the contract is identical, except for the amount of dues to be checked off, with that negotiated by Southern and Local 1410 as the detailed contract contemplated in their Memorandum of Agreement, and reflected the current terms and conditions of employment. Fitzgerald conceded that no proof of majority represen- tation was shown by Local 1516. He insisted, however, that he believed the group at the Malaga Inn "represented the legitimate consensus of the banana workers that wanted to do banana work" because of the events described above; because of information received from ILA that Local 1516 had been chartered to exercise jurisdiction over banana work; because all those present were "the banana people that had been doing this job all this time" including all the top officers of Local 1410; and because "not one objection was raised." Vice President Irby testified that about 5:30 p.m. on May 27, 1976, Matthew Smith told him, at the hiring center, that there was to be a meeting at the Malaga Inn; Irby asked what it was about, and Smith replied he did not know but "something big is going on." Although I do not credit Irby that there were only 15-16 people at the meeting, I do credit him that Love Carter, vice president of Local 1516, Sam Harris, Curtis Duncan, Kossuth Bumpers, Bedford " I do not credit Irby that although he gave Curtis Duncan $10 at Duncan's request before he sat down, he did not know what it was for until he read on his receipt that he had become a member of Local 1516; nor his testimony that he questioned the legality of the meeting before it was over. Irby is too old a pro not to know when he is joining a union, and Fitzgerald's account conforms with Clemon's that no objections were raised during the meeting. Matthews, Mose McClenton, Arron Green, and Sheffield Malone, whom Fitzgerald did not name, were present. I find, as testified to by Clemon, that Irby took an active role in the discussion and voiced no objections; and that after the meeting adjourned, Irby asked Clemon if what they had done was legal, and Clemon said it was, since the charter had been issued." By the next day, Irby decided to oppose the action taken, and at the next regular meeting of Local 1410, held on June 1, he voiced his opposition. After June 3, Southern ceased checking off 44 cents per man-hour for Local 1410 as it had been doing, and began checking off 3 cents per man-hour for the South Atlantic and Gulf Coast District and 5 cents per man-hour for Local 1516.12 The trustees of the pension, welfare, etc. plans are, however, holding Southern's contributions without cashing its checks on the ground that they cannot accept Local 1516 as a member. On June 14, 1976, Henry Clark, secretary-treasurer of Local 1410, addressed a letter to Southern to the following effect: Please be advised in the regular meeting of I.L.A. Local 1410, held June 15, 1976, the members present voted to recend the letter sent to you dated May 9, 1975 and all documents be inserted as 1410, that the memorandum of agreement between Local 1410 and Southern Stevedoring Company will remain as was. In July or August 1976, Local 1410 held an election and the following officers were elected: George Dixon, presi- dent (and International third vice president); Seymour Irby, first vice president; Murray Gardner, second vice president; Nelva Simon, secretary-treasurer; Samuel Jen- kins, recording secretary; Rev. Alex Cook, chaplin. Irby testified that, in his campaign for reelection, he promised to fight to disestablish Local 1516. Irby also testified that he has requested the International's assistance with regard to Local 1410's "problem with 1516," but has received no help from it in resolving the problem. 2. Conclusions The above facts demonstrate that the Respondents failed to prove that Local 1516 represented a majority of Southern's employees on May 27 and 28, 1976, when recognition was accorded and the collective-bargaining agreement entered into. By the same token, however, the General Counsel failed to prove that Local 1516 did not represent a majority, and it was his burden if the violations were to be established.13 The General Counsel argues that the violations were nevertheless established because the incumbency status of Local 1410 created a presumption that it was the majority representative, which the Respon- dents failed to rebut. In my opinion, though, no such presumption is operable in this case, because Local 1410 abandoned its incumbency status. iz The Local 1516 checkoff authorizations subpenaed by the General Counsel bear dates on and after June 6, 1976. 13 Walker's Midstream Fuel d[ Service Co., 208 NLRB 158 (1974): American Beef Packers, Inc., 187 NLRB 996 (1971), enfd. 463 F.2d 818 (C.A.D.C., 1972). 612 SOUTHERN STEVEDORING COMPANY, INC. Thus, after repudiating its Memorandum of Agreement with Southern, its own members, at a regular meeting attended by and presided over by its responsible officers, voted for the creation of a new local to which Local 1410's jurisdiction over Southern's employees would be surren- dered, and the application itself bore the names of three Local 1410 officers. No further efforts were made after that by Local 1410 officers or by the previously elected committee to pursue a detailed contract with Southern which Local 1410 was, in any event, proscribed from consummating by its own intraunion restriction. In fact, although Southern continued to check off dues for Local 1410, and although it continued its contributions to the plans, it did so, Fitzgerald testified, only out of concern for the welfare of its employees. It does appear that Local 1410 acted as the employees' representative in any manner during the ensuing I months. Nor was there any objection from any quarter to this state of affairs. Finally, the May 28, 1976, meeting with Fitzgerald at which the Local 1516- Southern agreement was negotiated was arranged by the president of Local 1410 and attended by its president, two vice presidents, and its recording secretary. None of them voiced any objections to what was going on; none of them voiced a claim that Local 1410 was the representative of Southern's employees; and none of them questioned the majority status of Local 1516. Indeed, although second thoughts apparently struck Vice President Irby after the deed was done, it was not Local 1410 which filed the charge in this proceeding.1 All in all, the situation here seems to be essentially "an intra-union affair" involving relationships among constitu- ent local unions and their own district and International.15 The chartering of the new Local 1516 for the express purpose of representing the banana-handler employees in the Port of Mobile conformed with the past practice of chartering new locals to whom jurisdiction over specific work was ceded by Local 1410, and with the practice of the District and the International in chartering locals for the representation of banana handlers in other Atlantic and Gulf ports. There is no indication that the District and the International in approving the realignment of jurisdiction, were motivated by considerations other than more effective representation, and the record, as found, fails to show that the employees involved do not wish to be represented by the new local chartered specifically to represent them. At the same time the record does show that no untoward advantage to the Employer or disadvantage to the employees ensued. The result has been the encouragement of stable and effective bargaining relationships not, in all the circumstances, at odds with the basic principles of the Act.16 I therefore conclude that the Respondents did not violate Section 8(a)(2) and 8(bXl)(A) by negotiating, entering into, or giving effect to their May 28, 1976, collective-bargaining agreement, and recommend that these allegations be dismissed. "4 See General Fibre Box Company, Division of Longview Fibre Company, 219 NLRB 569(1975); Wrought Originals, Inc., 139 NLRB 1435(1962). '" See J. H. Hamlen d Son, Inc. 180 NLRB 902 (1970). 16 Accord: Associated General Contractors of America, Inc., et al, 182 NLRB 224 (1970): H. L Washum, an Individual Proprietorship d/b/a Los Angeles - Yuma Freight Lines, et al., 172 NLRB 328 (1968), reversed on other B. The Foremen 1. Supervisory status The complaint alleges, and the answer denies, that Dock- Gang Foremen Kossuth Bumpers, Bedford Matthews, Aaron Green, and Matthew Baldwin, and Ship-Gang Foremen C. Small, Howard (Tightrope) Johnson, and Sip Pettaway are supervisors; and that Ship Superintendent or Ship Foreman Samuel Jenkins, maintenance man Shelly Jenkins, truck spotter Bill Law, and timekeeper Samuel Harris (Gus Hall) are agents of Southern Stevedoring Company. As stated above, Stevedoring Superintendent Michael Shiro and his assistant, George Pedrick, admitted supervi- sors, were in charge of the banana-unloading operation. Shiro posts for information of the foremen, the night before a ship arrives, the number of gangs which will be needed. There are invariably 24 men in a dock gang; 1" and 26 men, including 8 riggers, in a ship gang. The dock and ship foremen hire the gangs about 7 o'clock on the morning ship is to be unloaded. No one tells them whom to hire, and they hire whom and where they choose within their own complete discretion. Riggers begin work at once, and stay on after the others have finished, placing movable conveyors in the hatches and afterwards removing them. Gang members start at 8 a.m. and usually work until the ship has been unloaded. Shiro spends most of his time, while the ship is being unloaded, in the hold and Pedrick on the dock. Each gang unloads about 3,800 boxes an hour and although Shiro and Pedrick are on the spot directing operations, Fitzgerald testified it is the foremen's responsi- bility to see that the flow of boxes on the conveyor is maintained and to see that they are properly stacked in the trucks in staggered sequence. Foreman Johnson testified he is sometimes told "how to work the ship" to keep it from listing, or the order in which special kinds of bananas should be brought out, but, he said, "they don't tell me how to work the men." Foremen do gang work only briefly, in temporary relief. Southern accepted Local 1410's advice in selecting as its original foremen the same men Sealand had employed, as Southern was, Fitzgerald said, inexperienced in such matters at that time; since then some changes have been made and the Company sought the Union's recommenda- tions as to replacements. The record shows that manage- ment selections were submitted to a vote of Local 1410 members for their approval. Neither the foremen nor the gang members have ever been required to be union members, although most if not all the foremen are. The foremen's wages were not covered by the Local 1410 Memorandum of Agreement, although they are set in the Local 1516 contract, currently at S8.50 an hour, 50 cents more than gang members. Local 1410 Vice President Irby grounds 446 F.2d 210 (C.A. 9, 1971); Climax Molybdenum Company, 146 NLRB 508 (1964); Cadillac Automobile Company of Boston, 90 NLRB 460 (1950). 17 There is also a layout man, truck spotter, and checker. It is not clear, however, whether they are included in the dock gang or hired and directed by the dock foreman. 613 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that foremen were included in the pension and welfare plans. 18 I agree with the General Counsel that it is highly improbable, not to say impossible, for Shiro and Pedrick alone to responsibly direct the activities of up to 180 men spread over such a wide area engaged in such rapid and precise activities without depending on their foremen to make the split-second on-the-spot decisions necessary to maintain the speed and timing of proper product flow. And such decisions in my opinion inherently require the use of independent judgment. Even more decisive of the supervi- sory status of the foremen is their authority to hire - the premier indicium of supervisory authority placed in the statute ahead even of the awesome authority to discharge. It is the foremen who determine, within their sole discretion, who of the men standing around their trucks holding up their cards at the shape-up goes on Southern's payroll and receives a Southern check for a day's work, and who does not. And, contrary to the Respondent's conten- tion, it is of no statutory significance that the work performed is "simple manual labor" as the Respondent describes it, that foremen's wage rates are set forth in the current collective-bargaining agreement; or that Southern seeks and follows union advice and recommendations in selecting men for foremen positions. I therefore find that the dock foremen and the ship foremen are supervisors within the meaning of Section 2(1 1) of the Act.'9 Dock-Gang Foreman Kossuth Bumpers. Willie B. Ed- wards, a member of Local 1410 since 1968 who worked for Southern two or three times a month in 1974 and 1975 and twice in 1976, credibly testified as follows: Edwards was hired by Bumpers at the shape-up on the morning of June 9, 1976, and worked in a truck until about 10:30 or 11 a.m. when Bumpers asked him if he had signed a paper. Edwards wanted to know what paper, and Bumpers said "for 1516." When Edwards said he had not and would not do so, Bumpers told him, "I might be a long time getting my check if I didn't sign it . . .said I won't work down there with him no more if I didn't sign it." At the June 23, 1976, shape-up, after Edwards failed to be selected by Foreman Small or by Foreman Baldwin, he approached Bumpers and Bumpers said, "you know what I told you, Willie ... I already told none of the guys not to hire you," and Bumpers would not hire him "not until you sign a 1516." James Jackson, a 2-month member of Local 1410 who has worked for Southern three times in 1976, testified without contradiction that on one occasion Bumpers asked him if he had signed the Local 1516 form. 'R Both contracts forbad anyone to give orders to the men except the foreman or an individual appointed by him, but Shiro testified he regularly gives orders to the men. 19 N. L.R.B. v. Security Guard Service, Inc., 384 F.2d 143 (C.A. 5, 1967), enfg. 154 NLRB 8 (1965), relied on by the Respondent, is distinguishable on its facts as the basic duties of the guard sargent found by the Board and the court in that case not to be a supervisor were identical with the basic duties of nonsupervisory guards and he had no authority to hire or responsibly direct them. Nor is N. L RB. v. Master Stevedores Association of Texas, et al.. 418 F.2d 140 (C.A. 5, 1969), reversing 156 NLRB 1032 (1966), controlling. Aside from my obligation to follow the Board absent any disposition by it to accept the court's view, that case is also factually distinguishable as neither the Local 1410 nor the Local 1516 contracts with Southern contained hiring- hall provisions and neither union operates a hiring hall or has a contract obligation to provide Southern with employees. The foremen here are paid Bumpers admitted he handed out Local 1516 authoriza- tion cards, the same as he had for Local 1410 on orders from timekeeper Sam Harris, he said, and that he probably gave one to Edwards. He denied the rest of Edwards' testimony. 20 Dock-Gang Foreman Bedford Matthews. I credit Robert Harris, a member of Local 1410 for 16 years who worked regularly for Southern in 1976, and Lesley Collins, a 20- year member of Local 1410 who worked fairly regularly for Southern in past years but only three times in 1976, who testified substantially the same, as follows: On a day in mid-May Matthews hired the two of them and then after he hired the rest of his gang he called the two to come take their cards back, as they did not have jobs after all, "if you don't sign this 1516 [card], he said you ain't got no job." When the employees summoned Local 1410 Vice President Irby to the scene, Matthews pretended he had been joking and allowed them to work. Collins also credibly testified that on another day, shortly thereafter, he asked Matthews for a job and Matthews offered him a Local 1516 authorization card and when Collins refused to sign it, "he said I wouldn't be able to work." Collins also said Matthews told him and several men, after the shape-up on June 24, 1976, "we had to sign, sign with 1516 to work at the banana dock .... " 21 Dock-Gang Foreman Aaron Green. I credit Robert Wood, a member of Local 1410 for 5 years who worked off and on for Southern ever since it began operations in Mobile and twice in 1976, who testified without contradiction that about June 8, 1976, Green asked him if he had signed his Local 1516 card; Wood said he had not; and Green told him that "I needed to sign it because they was going to start giving cards out to ship up by and if I didn't have one he was going to have to hire all them first." James Jackson, whom I have credited above, testified without contradic- tion that in May or June Green gave him a Local 1516 card, and afterwards asked him if he had signed it. Ship-Gang Foreman Howard Johnson. Walter Westry has been a member of Local 1410 for 8 years; he has worked for Southern at least once a week since it began operations in Mobile. He testified that, while he was at work in the hold during an afternoon in late May, he saw Samuel Jenkins give Johnson some Local 1516 authorization forms, and heard him tell Johnson to pass them among the men; and that Johnson then began passing the forms around and, "He said if you want to work down here, you are going to have to sign these forms." Johnson conceded he passed Local 1516 cards out to his gangs, but he denied telling them they had to sign in order to work. wholly by Southern for hiring and directing employees in the interest of Southern in getting its bananas unloaded in the fastest and most efficient manner. 20 The testimony of these two employees is mutually consistent and consistent with testimony by Nelva Simon that Bumpers told him about June 17, 1976, "that the men down at the banana operations were no better than he was, that he had to sign the [Local 1516] authorization slip and they had to sign the slips [if] they got hired down there." I do not credit Bumpers' denials as his demeanor was not that of a truthful person. 21 Harris and Collins' testimony was mutually consistent and consistent with testimony by Rev. Alex Cook that Matthews made a similar remark in his presence. The demeanor of these witnesses was that of honest persons telling the truth, Matthews' demeanor was just the opposite and he dissembled on the witness stand; his denials are not credited. 614 SOUTHERN STEVEDORING COMPANY, INC. In this instance, I found Johnson's demeanor for truthfulness more impressive than Westry's; and I there- fore credit Johnson. Ship-Gang Foreman C. Small. Rev. Alex Cook, chaplin of Local 1410 and a member for over 20 years, has worked one or two Southern boats a month for 2 or 3 years. I have credited him heretofore and he testified without dispute that Samuel Jenkins came down in the hold on the afternoon of June 3 and gave some Local 1516 authoriza- tion cards to Small and told him to get the men to sign them; and that Small responded that he did not see any sense in it, but he did give them to the men to be signed. Cook testified that Small again passed cards out to the men on June 22. Ship-Gang Foreman Sip Pertaway. Pettaway admitted that timekeeper Harris told him to distribute Local 1516 authorization cards to his gang and that he did so sometime in May telling the men to sign if they wanted to. Conclusions. I can find no merit in the Respondent's argument that it should not be held responsible for the conduct found above because no management official above the rank of foreman authorized it; because it was a longstanding practice of foremen to pass out Local 1410 cards before the advent of Local 1516: and because the practice "is grounded on the highly casual nature of employment on the waterfront." Where, as here, an employer has endowed its foremen with supervisory authority as defined in Section 2(11) of the Act, it must accept responsibility for their conduct in contravention of the prohibitive sections of the Act, and the fact that similar conduct has been engaged in in the past or that the employees whose rights are thus infringed are casual labor does not absolve an employer from that responsibility. I have found that Foreman Bumpers threatened employ- ee Edwards with delay in being paid and with loss of employment if he did not sign a Local 1516 card; that Foreman Matthews threatened employees Harris and Collins with loss of employment; that Foreman Aaron Green threatened employee Wood with loss of employ- ment; that Bumpers interrogated Edwards and employee Jackson about whether they had signed the cards; that Green similarly interrogated Wood and Jackson; that Green gave a Local 1516 card to Jackson to sign; and that Bumpers and Foremen Johnson and Pettaway distributed cards to their gang members for signature. In the absence of a union-security contract, such conduct, considered as a whole and in context, interfered with employees' right to choose their bargaining representative and unlawfully assisted Local 1516. I conclude that the Respondent thereby violated Section 8(a)( ) and (2) of the Act.22 22 See Plastics Plant, Plumbing Fixtures Division, North Industries. 214 NLRB 629 (1974): The Drackett Companv, 207 NLRB 447 (1973); Western Building Maintenance Co., 162 NLRB 778 (1967). No specific allegation of unlawful conduct by Foreman Pettaway was alleged, but the evidence was received without objection and the issue was fully litigated. There was no allegation, and no clear evidence, against Foreman Matthew Baldwin. 2 Contrarv to the General Counsel. the record does not show that Samuel Jenkins had authority to hire gang members. C. Ship Foreman, Maintenance man, and Timekeeper Samuel Jenkins, called ship superintendent, ship fore- man, or stevedore, is paid 40 cents an hour more than foremen and 90 cents more than gang members, his wage being set in the Local 1516 contract. Fitzgerald testified Jenkins is primarily "a liasion between the ship and the dock," relaying information, about such matters as which types of fruit are to be unloaded in order for designated trucks to be ready for them, between Shiro and Pedrick and between them and the foremen.23 Other than the assumption which flows from their classifications as maintenance man and timekeeper, there is no record evidence as to the duties and responsibilities of Shelly Jenkins or Samuel Harris. The Respondent's brief describes the duties of truck spotter, the classification held by Bill Law, as that of lining up the trucks in the bays for loading and guiding them away from the dock when they have been loaded, but I cannot find any such evidence in the transcript. The General Counsel does not contend that these individuals are supervisors, and there is no evidence that their efforts to obtain employee support of Local 1516 were instigated or directed by supervisors or management personnel. I conclude therefore that the Respondent is not responsible for the conduct by them testified to, and that the allegations as to them should be dismissed. IV. REMEDY Having found that the Respondent Southern engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and from engaging in any like or related practices. In order to effectuate the policies of the Act, I shall also recommend that the Respondent Southern post notices. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2 4 Southern Stevedoring Company, Inc., Mobile, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with delay in being paid or with loss of employment if they do not sign authorization cards for International Longshoremen's Association, Local 1516; interrogating employees as to whether they have signed such cards; or distributing such cards to its employees for signing. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action: 24 In the event no exceptions are filed as provided be Section 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. 615 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its dock in Mobile, Alabama, copies of the attached notice marked "Appendix." 25 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein, and that it be dismissed entirely as to International Longshoremen's Association, Local 1516. 25 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with delay in being paid or with loss of employment if they do not sign International Longshoremen's Association, Local 1516, authorization cards; or interrogate employees as to whether they have signed such cards; or distribute such cards to our employees for signing. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act, as amended. SOUTHERN STEVEDORING COMPANY, INC. 616