Alaska Salmon Industry, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1959

122 N.L.R.B. 1552 (N.L.R.B. 1959)

1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board further ordered that, in the event the ballots of Lofton
and Carter do not determine the results of the election, a hearing be held
before a hearing officer, to be designated by the Regional Director
for the Fifteenth Region, for the purpose of resolving the issues
raised by the challenge to Westmoreland's ballot.]
[The Board further ordered that, in the event a hearing is held, the
hearing officer shall serve upon the parties a report containing resolu-
tions of the credibility of witnesses, findings of fact, and recommenda-
tions to the Board as to the disposition of said challenge. Within 10
days from the date of issuance of the report, any party may file with the
Board in Washington, D.C., an original and six copies of exceptions
thereto. Immediately upon the filing of such exceptions, the party
filing shall serve a copy thereof upon each of the parties, and shall
file a copy with the Regional Director. If no exceptions are filed
thereto, the Board will adopt the hearing officer's recommendations.]
[The Board further ordered the above-entitled matter referred to
the said Regional Director for the purpose of arranging such
hearing.]
Alaska Salmon Industry, Inc., and Its Member Employers and
Domingo Aris, Lawrence Aris, Venancio Balangue , Pedro M.
Candido, Andres T. Dison , Pablo Elustre, Segundo A. Martinez,
Frank Tahija , Lorenzo Toledo , Vincent B . Valdehueza, and
Peter Patrick Mendelsohn and International Longshoremen's
and Warehousemen's Union , Local No . 37, Party to the Con-
tract. Cases Nos. 19-CA-1491, 19-CA-1491-1 to 19-CA-1491-10,
respectively. February 25, 1959
DECISION AND ORDER
On March 28, 1958, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondent and the General Counsel entered into a settlement stipula-
tion providing for the issuance of a Board Decision and Order and
consent decree by a court of appeals. The Board issued its Decision
and Order on May 21, 1958, and the Court of Appeals for the Ninth
Circuit entered a consent decree on July 21, 1958.
The Trial Examiner also found that the Respondents had not
engaged in certain other unfair labor practices alleged in the com-
122 NLRB No. 183.
ALASKA SALMON INDUSTRY, INC. 1553
plaint. As to these findings, the General Counsel filed exceptions
and a supporting brief. The Party to the Contract, International
Longshoremen's and Warehousemen's Union, Local No. 37 (here-
after referred to as the Union), filed a brief in support of the Trial
Examiner's Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and finds merit in certain of the General Counsel's exceptions. Ac-
cordingly, the Board adopts the Trial Examiner's findings, conclu-
sions, and recommendations only to the extent that they are consistent
with the findings below.
. The complaint alleged that the Respondents, Alaska Salmon In-
dustry, Inc., . and its member employers, maintained and supervised
a hiring hall and hired job applicants only after the latter signed
auhorizations for the deduction of union dues from their pay for
the forthcoming season, thereby contributing support to the Union
in violation of Section 8(a) (2) and encouraging union membership
by discrimination in regard to hire or tenure of employment in
violation of Section 8 (a) (3). The Trial Examiner dismissed these
allegations of the complaint, finding that the prospective employees
were not required to sign dues checkoff authorizations in order to
obtain employment, and that the Respondents' part in permitting
the Union to solicit the authorizations at the hiring hall was not
coercive.
The General Counsel argues that the Respondents permitted the
Union to solicit and procure checkoff authorizations in the midst of
the hiring procedure and so contributed unlawful support to the
Union in violation of Section 8 (a) (2). We find merit in this
contention.
There, is no essential dispute as to the facts. The Respondent ASI
represents its member employer canneries in collective bargaining
and in the operation of a hiring hall. The hall operates in accord-
ance with a collective-bargaining agreement between the ASI and
the Union. This agreement sets up an elaborate system of seniority
preference in the seasonal hirings of Alaska cannery employees. It
contains, inter alia, an exclusive recognition clause, a union-security
clause giving employees a 30-day period to join after the commence-
ment of employment, and a clause providing for employer recogni-
tion of individual checkoff authorizations.
The agreement provides that employees shall be employed and
dispatched from a central employment office "designated by and
under the supervision and control of the Alaska Salmon Industry,
Inc.." that the ASI shall designate one of its employees to act as the
505395-59-val. 122-99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office supervisor, that the supervisor shall be present at all times
when employment and dispatching is in progress and that representa-
tives of the employing company, the industry, and the Union may
also be present.
In carrying out the terms of the agreement, the ASI designated
the union headquarters at Seattle as the dispatching and employment
office. And it selected its two assistant managers to supervise the
office.
Under the agreement the Union conducts a daily registration of
all applicants. Applicants receive clearance cards, varying in color,
to reflect seniority preference. About 80 percent of the men have a
"first" preference, i.e., they have worked the previous season at the
cannery currently calling for employees and so have an unqualified
right to reemployment. The remaining number are applicants for
"fill-in" jobs.. More than 90 percent of all hires are of Phillipine or
Japanese ancestry.
The dispatching operation is conducted at a table separate from'
the registration. Those present usually include the ASI hiring hall
supervisor, the member employer's personnel agent, and the union
dispatcher and his assistant. Others who may be present are the
ASI supervisor's assistant , a foreman of the hiring member em-
ployer, and the union business agent. The union dispatcher and his
assistant ordinarily sit between the ASI supervisor 's and the mem-
ber employer's hiring agent. '
The applicants approach the dispatch table where the hiring hall
supervisor checks the work experience claims of each against an
employment card index. Applicants present some identification or
their clearance card. The ASI supervisor then checks the qualifica-
tions :and refers the applicant to the personnel agent of the member
cannery seeking employees. The cannery personnel agent does the
hiring. When the applicant is selected by the personnel agent, the
union dispatchers remove half of the clearance card for union record
purposes. At that point one of the dispatchers-usually the as-
sistant who is present just for. that purpose-routinely requests the
applicant to'sign a checkoff form authorizing the employer to deduct
from wages union dues for the canning season . After this, the
applicant must pass a physical examination before he can report
to work.
Virtually everyone signs the checkoff authorization during the
hiring procedure. ' The union business agent estimated that ap-
proximately 99 percent of the men signed either prior to their selec-
tion for referral 'or while they were-at the dispatching table.'
1 The,dispatcher testified that .a "first" preference man who is' returning to the cannery
where he `woiked ' the previous' year may sometime sign an authorization before being
dispatched "to eliminate unnecessary work on the dispatching table."
ALASKA SALMON INDUSTRY, INC. 1555
We find on these facts, and in agreement with the Trial Examiner,
that union officials routinely solicited checkoff authorizations from
applicants in the midst of the referral process and prior to actual
hire; that the ASI was aware of this practice, acquiesced in, and
condoned it.
There is no evidence that job applicants were required to sign
dues checkoff authorizations as a condition of receiving employment.
Accordingly, we agree with the Trial Examiner that there was no
violation of Section 8(a) (3) in this respect. However, the conditions
under which applicants were asked to sign the authorizations-
conditions for which the Respondent was responsible-greatly helped
the Union in securing necessary signatures. Employees, particularly
unsophisticated ones, could very well believe from the circumstances,
that signing a dues checkoff was a routine part of the hiring process.
The Board has held that an employer unlawfully assisted a union
in permitting a union representative to use its personnel office to
solicit newly hired employees to join the union and allowing one of
its personnel clerks to fill out union application forms for members 2
A fortiori, there is. similar unlawful assistance where an employer
permits the union to solicit dues checkoff authorizations during the
very process of hiring. Accordingly, we find that by permitting
the Union to solicit dues checkoff authorizations during the course
of hiring, the Respondent unlawfully contributed support to the
Union in violation of Section 8(a) (2) and (1) of the Act.
THE REMEDY
We have found that the Respondents unlawfully contributed sup-
port to the Union in violation of the Act. We will therefore order
that they cease and desist from such conduct.
ADDITIONAL CONCLUSIONS OF LAW
1. By permitting the Union to solicit and procure from employees
and applicants for employment, during the hiring procedure, signed
authorizations for the checkoff of union membership dues from
wages, the Respondents have contributed unlawful support to the
Union and engaged in unfair labor practices within the meaning of
Section 8(a) (2) of the Act.
2. By interfering with, restraining, and coercing employees and
applicants for employment in the exercise of the rights guaranteed
by Section 7 of the Act, the Respondents have engaged in unfair
labor practices within the meaning of Section 8(a) (1) of the Act.
2 New, Orleans Laundries, Inc., 114 NLRB 1077, 1085.
4556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, the National Labor Relations Board hereby orders
that the Respondents, Alaska Salmon Industry, Inc., Seattle, Wash-
ington, its various member firms, and their officers, agents, successors,
,and assigns, shall:
1. Cease and desist from :
(a) Contributing support to International Longshoremen's and
Warehousemen's Union, Local No. 37, or to any other labor or-
ganization of our employees, by permitting the Union to solicit and
procure from employees and applicants for employment, during the
hiring procedure, signed authorizations for the checkoff of union
membership dues from wages.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed by
Section 7 of the Act, except to the extent permitted by Section 8
(a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Post at the office of the Respondent Alaska Salmon Industry,
Inc., in Seattle, Washington, and at all premises utilized by the
association as a hiring hall for nonresident Alaska salmon cannery
workers for the 1959 season, copies of the notice attached to this
Decision and Order marked "Appendix."' Copies of the notice,
to be furnished by the Regional Director for the Nineteenth Region,
shall, after being duly signed by a representative of the Respondent
Association in behalf of the Association and its various member firms,
be posted by the Respondent Association immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees
and prospective employees are customarily posted. Reasonable care
shall be taken by the Respondents to insure that these notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Nineteenth Region in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
MEMBERS RODGERS and FANNING, dissenting :
We agree with our colleagues that, by making its hiring hall
available to the Union for the solicitation of dues checkoff author-
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
ALASKA SALMON INDUSTRY, INC. 1557
izations, the Respondent violated Section 8(a) (2) and (1) of the
Act. We cannot, however, accept their further finding that the
Respondent merely acquiesced in and condoned the Union's solicita-
tion activities. On the contrary, in our view of the record, we are
convinced that job applicants were required to sign such checkoff
authorizations as a condition of employment. This clearly constitutes
a coercion of job applicants to join the Union and as such con-
stitutes discriminatory encouragement of union membership in viola-
tion of Section 8(a) (3).
There is no real dispute as to the facts. Under the terms of the
Respondent's agreement with the Union, every job applicant, except
those entitled to "first preference" by virtue of having worked at
the employing cannery the previous year, was required to report to
the union secretary for registration. Registration and dispatching
took place, with the Respondent's approval, at union headquarters.
Registration consisted of the applicant's supplying the union secre-
tary with certain identifying data. At the same time, the union
secretary would request the applicant to pay any union obligations
owed, stamp the applicant's dues book as cleared, and issue a pink
clearance card which indicated the applicant's seniority preference.
And according to the union secretary, although all applicants would
be registered, no man could be dispatched "without their books
cleared." Some applicants were registered on their promise to pay
past obligations. A "first preference" applicant, in lieu of regis-
tration, would be issued a white clearance card by the union dis-
patcher or one of his assistants. But this would not be done,
however, until after the applicant had his union book cleared and
stamped by the union secretary's office.
Dispatching followed registration and took place in another area
in the union hall. The applicant would present himself at a table
where, if selected for employment by the Respondent's representative,
a union dispatcher would remove half of his clearance card for
union record purposes. As the majority points out, there was also
present at the dispatching table an assistant union dispatcher whose
sole function in this hiring process was to "request" applicants to
sign the dues checkoff authorization forms. In the normal course
of the dispatching operation, this "request" would be made after
selection of the applicant for employment. But on occasion, a. "first
preference" applicant would sign his authorization prior to his selec-
tion in order to "eliminate unnecessary work on the dispatching
table." While an estimated 99 percent-virtually everyone-signed
the checkoff authorization during the hiring process, the record also
indicates that the few who did not sign during this hiring process
were only those able to "slip by" the assistant dispatcher during
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instances of commotion at the dispatching table. These, presumably,
are the ones who eventually signed the authorization on the job.
In view of the Union's role in the hiring arrangement, the fact
that the "requesting" of applicants to sign checkoff authorizations
was clearly an integral part of that arrangement, and the fact that
virtually every applicant did sign an authorization, we think that
the only logical conclusion which can be drawn from the circum-
stances is that, at the very least, the Respondent had a tacit under-
standing with the Union which obligated job applicants to execute
dues checkoff authorizations as a condition of obtaining employment.
While the majority states that there is no evidence that any ap-
plicant was denied employment because he refused to sign a checkoff
authorization, it should also be noted that the record is equally de-
void of evidence that any applicant ever obtained employment who
did not sign.
If the complete success thus achieved by the Union in persuading
job applicants to sign the authorizations is indicative of anything,
it is that all participants in the hiring process, particularly the
applicants, considered such signings a condition of employment. This
is manifest by our colleagues observation that the applicants, "par-
ticularly unsophisticated ones, could very well believe from the
circumstances, that signing a dues checkoff was a routine part of
the hiring process."
In our opinion, it is clear on the record before us that prospective
employees were required to sign dues checkoff authorizations as a
condition of employment.. As such a hiring arrangement effectively
coerced job applicants into joining the union, we would find, contrary
to our colleagues, that the Respondent thereby discriminated against
them in violation of Section 8(a) (3).
The requirement of signing dues checkoff authorizations at the
time of their hire denied applicants the 30-day grace period within
which to join the Union. This patently exceeds the limited form
of union security permitted by Section 8(a) (3) of the Act.4 We
would therefore find that the Respondent violated Section 8(a) (3)
for this additional reason.
As we would hold that the Respondent unlawfully required job
'applicants to sign checkoff authorizations as the price of employment,
we would, to remedy the effects of this unfair labor practice, require
the Respondent's member employers to refund to each of its em-
ployees all sums unlawfully deducted by such employers pursuant
to the checkoff arrangement. Dixie Bedding Manufacturing Com-
pany, 121 NLRB 189.
4 Convair, 111 NLRB 1055 , enforcement denied on other grounds, 241 F. 2d 695 ( C.A. 9).
ALASKA SALMON INDUSTRY, INC. 1559
APPENDIX
NOTICE TO ALL OF OUR EMPLOYEES, AND TO ALL EMPLOYEES AND
PROSPECTIVE EMPLOYEES OF OUR MEMBER FIRMS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
:'R'elations Act, as amended, we hereby notify you that :
WE WILL NOT contribute support to the International Long-
shoremen's and Warehousemen's Union, Local No. 37, or to any
other labor organization of our employees, by permitting the
Union to solicit and procure from employees and applicants for
employment, during the hiring procedure, signed authorizations
for the checkoff of union membership dues from wages.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees or applicants for employment in
the exercise of the rights guaranteed by Section 7 of the Act,
except to the extent permitted by Section 8(a) (3) of the Act.
All our employees are free to become, remain, or refrain from
becoming or remaining members of any labor organization, except
to the extent that this right may be affected by the provisions of
Section 8 (a) (3) of the Act.
ALASKA SALMON INDUSTRY, INC.,
AND ITS MEMBER EMPLOYERS,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and various and additional and amended charges, each duly filed
and served , the General Counsel of the National Labor Relations Board, in the
name of the Board, caused the Regional Director of its Nineteenth Region at
Seattle, Washington, to issue a complaint on October 17, 1957, under Section 10(b)
of the National Labor Relations Act, as amended, 61 Stat. 136. The several
Respondent Employers designated therein, specifically Alaska Salmon Industry,
Inc., a trade association, and its Member Employers, were charged with the com-
mission of certain unfair labor practices under Section 8(a)(1),(2),(3), and (4) of .the
statute. Copies of each charge, the complaint and the Regional Director's notice
of the hearing were duly served upon ASI and each of the Member Employers
involved. And an answer submitted in their behalf was subsequently received.
Therein the several Respondent Employers, jointly, admitted certain jurisdictional
allegations of the complaint, but denied the commission of the unfair labor prac-
tices charged.
In the complaint, the General Counsel has alleged, in substance: (1) that Peter
Patrick Mendelsohn-an individual with employment experience as a cannery
1560 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
worker, in the employ of Pacific American Fisheries, Inc., an ASI Member Em-
ployer, and various other firms engaged in the operation of Alaskan salmon can-
neries-filed separate charges under the Act, as amended, in 1956, against Pacific
American Fisheries, Inc. and ASI, respectively; and (2) that since on or about
May 27, 1957, ASI has refused to select Mendelsohn for hire on behalf of any
employer, and the association's Member Employers have refused to hire him, be-
cause of his action in filing charges under the statute, as noted. It is also alleged
that ASI and its various Member Employers-to be designated collectively, if
necessary, as the Respondent Employers in this Report-in maintaining and super-
vising a hiring hall for the seasonal selection of nonresident cannery workers for
hire, and in hiring employees, have selected workmen for hire only after their
clearance as members in good standing of the International Longshoremen's and
Warehousemen's Union, Local No. 37, designated as the Union herein, and after
their execution of checkoff authorizations for union dues.
The answer of the Respondent Employers, jointly filed, concedes the complaint's
jurisdictional allegations, as previously noted, but denies the commission of the
unfair labor practices alleged.
Pursuant to notice a hearing was held before me, as a duly designated Trial
Examiner, at Seattle, Washington, on December 12 and 13, 1957. The General
Counsel, the several Respondent Employers, and the Union were represented by
counsel. Each of the parties was afforded an opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence pertinent to the issues.
Briefs have been submitted in behalf of the General Counsel and the Respondent
Employers, and the Union has submitted a memorandum; these have been duly
considered.
FINDINGS OF FACT
Upon the entire record in the case, and my observation of the witnesses, I make
the following findings of fact.
I. THE RESPONDENT EMPLOYERS AND THEIR BUSINESS
Alaska Salmon Industry, Inc., a Delaware nonprofit corporation designated as
the ASI in this Report, has its principal offices in Seattle, Washington. It is com-
posed of member companies engaged in catching and canning salmon in Alaska,
and it is organized for the purpose, among others, of serving as the collective-
bargaining representative of its member firms, and maintaining and supervising a
hiring hall used in the seasonal selection of cannery workers for hire.
The various member firms associated with Alaska Salmon Industry, Inc., to be
designated as the Member Employers herein, annually sell and ship salmon valued
in excess of $10,000,000 from places in Alaska to destinations throughout the United
States. Each of them has designated ASI to act as their collective-bargaining rep-
resentative, and otherwise to act for them and serve their interests. In the light
of these facts, which are admitted, I find that, at all material times, ASI and its
Member Employers have been employers within the meaning of the Act, as
amended, engaged in commerce and business activities which affect commerce,
within the meaning of the statute. In the light of the Board's established jurisdic-
tional policy-see Jonesboro Grain Drying Cooperative, 110 NLRB 481, and re-
lated cases-and its previous assertion of jurisdiction in this industry-see Alaska
Salmon Industry, Inc., 119 NLRB 612, 41 LRRM 1149 specifically-I find further
that the assertion of the Board's jurisdiction in this case is warranted and necessary
to effectuate the statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
International Longshoremen's and Warehousemen's Union, Local No. 37, is a
labor organization, I find, within the meaning of Section 2(5) of the Act, as
amended, which admits to membership nonresident cannery workers in the employ
of the various ASI member firms, and functions as their collective-bargaining
representative.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination in employment
1. Background
In this case, the principal question to be resolved is whether ASI refused to
select Peter Patrick Mendelsohn for referral to any of its member firms for hire
during the 1957 salmon canning season , and whether the Member Employers in-
volved refused to hire him, because of his action in filing charges under the
ALASKA SALMON INDUSTRY, INC. 1561
statute , prior to the 1956 season, against ASI and Pacific American Fisheries, Inc.,
one of the member firms . In the light of the record as a whole, I am satisfied
that the 'General Counsel's position with respect to the issue posed has merit, and
that the indicated question must be resolved in his favor.
(a) Mendelsohn's employment history
The employment experience of Mendelsohn in the Alaskan salmon canning in-
dustry dates from the 1952 season. His 1955 employment record-which appears
to be related , tangentially, to the issues posed in this case-has been summarized
in a Board Decision, to which reference has already been made. Alaska Salmon
Industry, Inc., supra. The conclusions therein reached, with respect to his employ-
ment history, may be taken as datum in this case. On June 4, 1956, he reported
at the union headquarters in Seattle-which was currently being used as the ASI
hiring hall-and registered for employment as a cannery worker during the forth-
coming 1956 Alaska salmon canning season. He received a "clearance card" from
the Union and attempted, without success, to find employment thereafter.'
On June 8 Mendelsohn filed a charge at the Board's Nineteenth Regional office
alleging that Pacific American Fisheries, Inc., had refused to employ him for the
1956 season because of his antecedent activity in behalf of the Union herein.
And thereafter, I find, he continued to seek dispatch at the hall as a cannery
worker, but received no call.
On June 25, 1956, he filed a charge with the Nineteenth Regional Office against
ASI itself, alleging a discriminatory refusal of the respondent association's ac-
credited representatives to select him for referral to its member firms, because of
his previous action in filing a charge against Pacific American Fisheries, Inc., under
the Act, as amended. Although present at the hiring hall on numerous occasions
thereafter, while applicants for employment were being called and dispatched for
various ASI member firms, Mendelsohn received no call.
On July 6, 1956, his name was called, and he was dispatched to a job as a fish
bin tender with the New England Fish Company at its Orca, Alaska, cannery?
After serving for 2 weeks, approximately, as a fish bin tender at Orca, Mendelsohn
was reassigned to service as a casing machine operator at the cannery, and spent
the rest of his term of service in the performance of miscellaneous work. Some-
time after the cannery closed, however, the Union was officially advised by the
New England Fish Company that Mendelsohn's employment had been "termin-
ated" under the collective-bargaining agreement; since his seasonal employment
was already a matter of history, this notice was intended, I find, as a notice that he
would not be considered for reemployment at Orca during the 1957 season, pur-
suant to section 2(g) of the collective-bargaining agreement.
(b) The Unfair Labor Practice Case
On January 4, 1957, a complaint was issued by the General Counsel on the
basis of Mendelsohn's earlier charges, with ASI designated as the respondent; it
attributed unfair labor practices to the designated association within the meaning
of Section 8(a)(1) and (4) of the Act, as amended, on the basis of its alleged in-
volvement in a discriminatory refusal to select Mendelsohn for referral to one of
its member firms for hire, because of his action in filing a charge against Pacific
American Fisheries, Inc., as previously noted.
Pursuant to notice, a hearing was held with respect to the complaint on Jan-
uary 22 and 23, 1957; thereafter, on April 2, 1957, the presiding Trial Examiner
issued his Intermediate Report and Recommended Order in the matter. Upon
the entire record, the Trial Examiner found that Mendelsohn had not been dis-
patched to any job prior to July 6, 1956, for the reasons alleged in the complaint;
be found the respondent association guilty of unfair labor practices under Sec-
tion 8(a)(1) and (4), by virtue of its "action" in the premises. In the light of his
conclusions, noted, the Trial Examiner advised the parties of his recommendation
in the following language:
1 My factual conclusions in this connection-and, indeed, my factual conclusions with
respect to all of the 1956 events relevant in this case-are based upon the Board decision
previously noted, of which I have taken official notice. The facts found by the Trial
Examiner in that case have not been challenged, and the Board decision clearly establishes
their adoption by the agency without significant modification.
2 The record in .this case will fully support a factual conclusion that the New England
Fish Company, without regard to its ASI membership, operated the Orca cannery as an
independent enterprise, and that it selected its own cannery employees for the 1956
season there, without the assistance of an ASI dispatcher.
1562 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, the undersigned, recommends that Alaska
Salmon Industry, Inc., Seattle, Washington, its officers, agents, successors, mem-
bers, and assigns, shall . cease and desist from . discharging, refusing
to hire, or otherwise discriminating against any employee or prospective em-
ployee of any of its members because he filed charges under the Act. . . .
[Emphasis supplied.]
The Trial Examiner also recommended that ASI send a written notice to all of its
members, and all of the other firms for which it had acted as a dispatching or
hiring agent, advising them that it did not object to Mendelsohn's employment.
In due course, I find, copies of the Intermediate Report and Recommended Order
were served upon the respondent association, other. interested parties, and counsel.
And shortly thereafter, at a time not set forth specifically in the record, Herald
A. O'Neill, ASI's attorney, conferred with the General Counsel's representative,
and informed him of its intention to comply with the Trial Examiner's recom-
mendation, previously noted. O'Neill was advised, however, of the General
Counsel's intention to file various exceptions, with particular reference to the scope
of the Trial Examiner's remedial recommendation.3 After his discussion with the
General Counsel's representative, I find, O'Neill conferred, additionally, with
W. C. Arnold, the ASI's managing director, in regard to the Intermediate Report
and the action which the respondent association would have to take in order to
achieve compliance with the Trial Examiner's remedial recommendation.
Since the conclusions reached in this conference, as outlined for the present
record, can be evaluated only in a context of information with respect to the
respondent association's anticipated contractual obligation with respect to 1957 em-
ployment, under the terms of the collective-bargaining agreement then being
negotiated with the Union herein, consideration of the association's decision with
respect to Mendelsohn's treatment must necessarily be deferred, pending our con-
sideration of the agreement ultimately negotiated between the Union and the as-
sociation, in regard to the employment of nonresident cannery workers for the 1957
Alaska salmon canning season.
(c) The Agreement
On May 14, 1957, the International Longshoremen's and Warehousemen's Union,
for itself and on behalf of Local 37 herein, and Alaska Salmon Industry, Inc., on
behalf of its member firms executed an agreement for the 1957 season. The asso-
ciation, on behalf of its member firms, agreed to recognize the Union as the
exclusive and sole representative of all its employees hired from the States of
California, Oregon, and Washington for Alaska cannery operations during the 1957
season, in the capacity of cannery labor. And the agreement embodied a pro-
vision under which all of the employees covered would be required to become
union members within 30 days of the commencement of their employment, as a
condition of further employment.
The provisions of the agreement with respect to employment involved a verbatim
repetition of those effective for the 1956 season, as set forth at length in the
Intermediate Report and Recommended Order of the Trial Examiner in the previous
case, noted. For the present, therefore, a summary of the preferences con-
tractually established with respect to employment and dispatch should be sufficient.
FIRST: First preference was to be accorded to any employee, available for em-
ployment, who worked under the 1956 contract, within the bargaining unit, and
who was not "terminated" under that agreement. Normally, the right of these
employees to first preference was to be recognized at the cannery which employed
them during the 1956 season. If that cannery was to be closed for the 1957
season-and if the company involved was scheduled to participate in a "con-
solidated" enterprise at another cannery-the 1956 employees of the closed plant,
and the 1956 employees of other closed plants of the participants in the con-
solidation , were to be accorded first preference for selection as "fill-ins" and addi-
tional employees at the plant to be operated by the consolidated enterprise.
8 The indicated exceptions to the Intermediate Report and Recommended Order were, in
fact, subsequently filed. They included, inter alia, an exception to the Trial Examiner's
failure to recommend that the respondent association be ordered to select Mendelsohn for
hire during the "next season" on the basis of his seniority and preferential employment
rights in the 1956 season, under the terms of the contract between,the Union and the
respondent association. The General Counsel also requested the Board to require the
respondent association to induce its member firms to accept Mendelsohn for employment
upon the establishment of his eligibility.
ALASKA SALMON INDUSTRY, INC. 1563
Canneries closed in 1955-56 and scheduled to reopen in 1957 were to accord a
first preference to their 1954 employees who had not been terminated under the
agreement. At plants closed in 1955-56 and not scheduled to reopen in 1957,
because of the participation of their operators in a consolidated enterprise utilizing
another cannery, the 1954 employees of the closed plant were to be accorded a
first preference for "fill-in" employment at the operating plant in the consolidation.
SECOND: Any person employed during 1956 within the bargaining unit, who
had the necessary skill, experience, and qualifications to fill the job-if available
for employment-was to be accorded a second preference, at any cannery other
than the one involved in his 1956 employment.
THIRD: Third preference was to be given employees with experience during the
1954 and 1955 seasons, within the bargaining unit, if they had the necessary skill,
experience, and qualifications to fill the job, and were available for employment.
FOURTH: Fourth preference was to be given other persons satisfactory to the
employers-including but not limited to union members, or men recruited for
Alaskan cannery employment by the Union-provided that previous employees in
the industry were to be given first consideration within this group.
The agreement also provided that when available employees of equal preference
and qualifications exceeded the number of jobs to be filled, a selection was to be
made on the basis of seniority. Seniority, for this purpose was to be determined
by the highest number of seasons of continuous employment: (1) at the par-
ticular cannery; (2) with the company, (3) in the industry; and (4) by lot. There
was also a provision that:
The company shall have the right to reject any individuals of the second and
third preference who lack the necessary skill, experience and qualifications to
fill the job. However, this paragraph shall not be exercised arbitrarily.
The agreement provided for the establishment of a central employment office, at
which all nonresident cannery workers, except foremen and second foremen, should
be employed and dispatched. The office in question was to be one designated by
ASI and under its supervision and control; the association was authorized to des-
ignate one of its employees to act as the office supervisor. It was expressly
provided that the designated supervisor "shall" be present at all times when em-
ployment and dispatching was in progress.
Under the agreement, the Union was charged with the duty of registering all
applicants for work; such registration was to be undertaken daily. It was provided
in the agreement that the registration record would show the applicant's name, his
social security number, his job classification, his last employer and the year of
his last employment in the bargaining unit. The Union's daily registration list was
to be made available to the ASI's dispatching representative, and it was to be
checked against ASI records for accuracy.4
With respect to the actual operation of the central employment office, thus
established, the agreement provided that ASI representatives and certain designated
representatives of its Member Employers, as well as union officials, might be present
at all times . The identification of applicants, and their seniority was to be estab-
lished, initially, by industry records. In this connection, however, the agreement
provided that:
Union officials or others directly affected shall be afforded an opportunity to
dispute the Industry's determination of the employee's seniority or identifica-
tion, and in such cases the dispute shall be settled without delay by the
supervisor after hearing and considering all evidence presented. Any other
dispute over application of seniority or of these rules shall be settled in a
similar manner . [Emphasis supplied.]
* It is established, in the present record, that this registration procedure was, in fact,
followed by the Union and the Association, as a part of the dispatch operation for the
1957 season. There is testimony in the record, however, that the union secretary also
took advantage of the procedure to check the dues records of the union members who
reported to register, and that he requested members delinquent with respect to the pay-
ment of dues, fees, fines, and union assessments to meet their obligation. And upon the
completion of a registration, I find, applicants for employment routinely received a
clearance card from the union secretary or dispatcher which they were free to use in
connection with their efforts to find work. ASI's toleration of this procedure, as an
adjunct of its referral and dispatch operation has been challenged by the General Counsel
as a contribution of support to the Union involved. A consideration of his contentions,
in this regard, will be found elsewhere in this Report.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The supervisor of the office, designated by the association, was authorized to make
additional rules and establish additional procedure not in conflict with the agree-
ment, when such rules and procedure were necessary in his judgment to carry out
the purpose and intent of the agreement, in this connection.
2. Mendelsohn's 1957 experience
(a) The association's determination
The conferences which followed the issuance of the Intermediate Report and
Recommended Order in the previous case, to which reference has been made, have
already been noted, briefly. With the contractual provisions ultimately negotiated
for the 1957 season now in mind, we may return to a detailed consideration of the
association's reaction to the Trial Examiner's Report. In this connection, Herald
A. O'Neill, the Respondent Employers' attorney, testified credibly as follows:
When the decision was issued on April 2, 1957, I had a conversation with
Mr. Arnold in connection with it. . . . We discussed the matter with Mr.
Sharpe and Mr. Culbertson. I reviewed the matter in detail with them and
the effect of the order. I advised them that if we took no exceptions to it,
it would undoubtedly be adopted by the Board as the order of the Board and
it was my advice that no exceptions be taken to it. . . . As far as the matter
to make him whole, he had been hired during the season at the Orca cannery
and we figured there would be no monetary amount involved, at the most it
might possibly be a hundred dollars. That with reference to the cease and
desist order that we would have to do everything we could to see that he was
not discriminated against and be given the opportunity to be hired under the
contract. It was my interpretation and I explained that to Mr. Arnold, that
subsection A, on page 9, which provided that we cease and desist from dis-
charging, refusing to hire or otherwise discriminating against any employee or
prospective employee of any of its members because he filed charges under
the Act, that we could not, in any possible way, discriminate against Mr.
Mendelsohn and would have to give him his priority.
I went up and discussed this order with Mr. Melton Boyd of the General
Counsel so I would get his interpretation of it. He agreed with me in general
on the interpretation, but he said he wanted to file these exceptions for the
purposes of clarification. . . It was my interpretation then, and still is, that
under no circumstances could he be granted first preferential because he had
been terminated by PAF and no appeal had been taken on that, so he could
not have a first preferential of hiring at all and it would be impossible for
the Alaska Salmon Industry, Inc., to give him a first preferential under the
contract. Because we have no right of hiring and we would then be having
to tell one of our 36 members, you have to give this man a job in 1957,
which we couldn't have any possible legal right to do it. We just can't do it.
We can't direct any one of 36 canneries to employ a man. The only thing
we can do is give him his rights under the contract.
As a result of this discussion, I find, Managing Director Arnold concluded, for the
association, that Mendelsohn would be entitled to a second preference for 1957
cannery employment. When asked to explain the basis on which this conclusion
was reached, Arnold observed that Mendelsohn could not be accorded a first
preference because he had "no previous employer" with status as an ASI member
firm. Walter P. Sharpe and J. Steele Culbertson, each an assistant manager of
the association, were, I find, instructed by Managing Director Arnold-
. to treat Mendelsohn the same as any other applicant for employment
and to accord him the preference which we concluded he was entitled to
pursuant to the intermediate report.
At a later point in his testimony, Arnold described his instructions to Sharpe and
Culbertson as an observation and determination that Mendelsohn would be en-
titled to second preference, and that he would be entitled to the same treatment
as any other applicant with second preference. Upon the entire record, and my
observation of the witness, I credit Arnold's testimony in this connection.
(b) Mendelsohn's experience
On May 13, 1957, Mendelsohn, I find, reported at the hiring hall. His un-
disputed testimony, which I credit in this connection, indicates an understanding
on his part that the New England Fish Company would engage its Orca cannery
ALASKA SALMON INDUSTRY, INC. 1565
crew on that date.5 Upon his arrival, however, Mendelsohn discovered that the
first Orca crew had already been employed on May 7 and that they had been
dispatched to Alaska on the 12th of the month.
Shortly after his arrival , I find, Mendelsohn presented his membership book to
,the union secretary ; it was endorsed to indicate his status as a member in good
standing. The complainant was informed, however, that-in view of his "ter-
mination" after the 1956 season-he would have to sign the Union's registration
list. He did so, I find. On May 22, 1957, he received a clearance card for the
forthcoming season, countersigned by Matias J. Lagunilla, the union secretary.
Therein, his 1956 job assignment was described as that of a "Bin Tender" at the
New England Fish Company's Orca cannery. The card was white; its color was
identical, therefore, with the color of the cards held by every other applicant for
employment with a 1956 employment record in the Alaska salmon canning. industry.
Each half of Mendelsohn's card, however, bore the designation "2nd" in typewritten
form , indicative , I find , of his status as a "second preference " applicant.
Mendelsohn 's testimony indicates, and I find, that every time ASI sponsored a
"fill-in" call for a member firm, he attended the call and attempted to secure em-
ployment. As a witness he described the "fill-in" process, credibly, as follows:
When the employer puts in for men to be hired the men that went the year
before are hired on one day and a certain number of men never show up, so
they have to get replacements. These are called fill-ins, so usually the next
day that takes place and the replacement are hired.
Dispatching on behalf of the association's Member Employers began, I find, on
May 27, 1956, when 16 men were scheduled for employment and dispatch to the
Snug Harbor cannery. The first scheduled "fill-in" call, however, was set for
June 3, 1957, to complete the employee complement required by Pacific American
Fisheries, Inc., at its King Cove cannery. Dispatching operations, I find, continued
thereafter under ASI supervision until July 16, 1957, when the last "fill-in" call for
a Member Employer of the association was scheduled.
The available evidence establishes 21 scheduled "fill-in" calls. On the basis of
Mendelsohn's credible testimony which has not been effectively disputed, I find that
he was present in the hall on the occasion of each such call.
Normal procedure in connection with the association 's "fill-in" calls, I find, may
follow one or two patterns. Upon occasion the ASI hiring hall supervisor, seated
at the dispatch table, may announce a job to be filled. Applicants desirous of
consideration for the particular job called may then present themselves at the
dispatch table. Their claims with respect to experience in the classification in-
volved, or experience in related employment indicative of their ability to perform
the work in question may then be checked by the supervisor.6 In this connection,
applicants for employment will usually present their clearance card, with its entry
relative to their employment experience during the previous season, and possibly
their social security card. If a reference to the clearance card, or the ASI's card
index, establishes the applicant's experience and his qualifications for the job to be
filled, he will be referred by the ASI representative to a designated agent of the
particular member firm for which the call is being made. This individual, in the
name of the Member Employer involved, will determine the acceptability of the
applicant referred; if he enters no objection, the applicant will be deemed ac-
ceptable, and he will be asked to execute an employment application. He will
In the light of the available evidence, which establishes Mendelsohn's "termination"
by the New England Fish Company subsequent to his employment at the firm's Orca
cannery during the 1956 season, no contention is made in this case that Mendelsohn was
really entitled, under the 1957 agreement, to claim "first preference" as an applicant for
reemployment at the plant in question. His testimony establishes, however, that he
reported at the hall to seek employment at the cannery despite the notice of his termina-
tion there, on the basis of an indication by some New England Fish Company cannery
worker foreman that an effort would be made to get him dispatched if he reported.
fl For this purpose, I find, the supervisor will usually refer to a card index file, alpha-
betically arranged and mounted on spindles. The index cards in the file are supposed to
contain the employment record of every nonresident cannery worker hired by the associa-
tion's Member Employers for a number of years past. As described for the record,
however, the cards appear to contain entries which reflect only the successive job classi-
fications for which each individual indexed was dispatched. And these job classifications,
assigned at the time of dispatch, may, upon occasion, fail to reflect the actual work
performed by the individual involved during the given season, since employees under the
agreement are subject to transfer at the cannery.
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also be given a referral to a physician for a physical examination, prior to his
scheduled departure for the cannery.7
Alternatively, I find, applicants for employment may be called by name. The
names called are derived by the ASI supervisor from the daily registration lists
which, the Union provides. Since the registration information provided daily by
the Union is not arranged to reveal the relative preference of each registered appli-
cant, the data provided must be reworked, occasionally, by the ASI representative.
The registrants reported by the Union are thus relisted in the order of their rela-
tive preference, under the agreement, for each job to be filled at any given "fill-in"
call. The names of registered applicants apparently qualified-on the basis of
their previous employment records-are then called in the order of their respective
preferences. If they respond to the call, their claims with respect to relevant
experience and their ability to fill the job are checked by the ASI representative,
as previously noted. And, upon verification, they are referred to the representa-
tive of the member firm involved, for employment as previously indicated.
Occasionally, apparently, this orderly procedure breaks down and a "mob scene"
develops at the dispatch table, in the course of which applicants for employment,
both registered and unregistered, clamor for attention and importune the ASI rep-
resentative for referral. The record suggests that an effort is made by the associa-
tion to achieve some semblance of order, and to effectuate referrals with due
regard to each applicant's relevant experience and his contractual preference rights.
It is established, however, that disorders of this type may, upon occasion, disrupt
the dispatch procedure and facilitate the referral and employment of applicants
deficient in experience or ability. Mendelsohn's undisputed testimony in this con-
nection, which I credit, provides a graphic description of the situation which usu-
ally develops under these circumstances, as follows:
Well, they crowd around the table, I have done it myself, we would throw
the cards at him, at his desk, and we would be beseeching the union dis-
patcher to turn our card over to him and call his attention that we are there
and keep on pleading for our job, and sometimes he would pick up our card
and look at it and he would start questioning us and other times he would
just leave it' lay and sometimes the dispatcher would handle the card and call
you and question you and you might get the job and you might not, it all
depended on the circumstances. . . . Well, if the man qualified for the pref-
erence and for the job he usually got the job and proceeded on through the
schedule. The only trouble is that many of the fellows that went through
there even though they didn't have the preferential, got through. Too many
new men were dispatched through, even though they had no right to go
through that way.
With these possible variations of procedure in mind, we may turn to a considera-
tion of Mendelsohn's actual 1957 experience at the hall.
His credible testimony, which has not been effectively disputed, establishes that
-despite his presence at every "fill-in" call-he was able to present himself for
effective consideration on four occasions only. Once, apparently, his name was
called. With respect to the other occasions, it is Mendelsohn's testimony, which
I credit, that his clearance card was submitted in response to a general call, and
that it was taken from the dispatch table.
Mendelsohn's testimony would indicate that his first contact with an ASI repre-
sentative occurred on May 27, 1957, at the outset of the ASI dispatch operation.
On that date, allegedly, he approached Assistant Manager Culbertson at the hall
and inquired as to his chances for dispatch. Culbertson, according to the com-
plainant's recital, informed him that the respondent association was under no obli-
gation to dispatch him because the Board had not ordered him dispatched.
Mendelsohn then indicated his realization that the Board had not ordered his dis-
7 The available evidence establishes, also, that the Union's official dispatcher and an
assistant will normally be seated at the dispatch table between the association representa-
tive and the member firm's personnel man. In the normal course of events, the dis-
patcher will remove one-half of the clearance card held by the applicant and make an
appropriate entry, with respect to the cannery to which the applicant is being referred
and the job classification for which he is being considered. The detached portion of the
clearance card will then be retained by the dispatcher for the union records. Additionally,
I find, the referred applicant will routinely be requested to execute a checkoff authoriza-
tion for his union dues, effective for the forthcoming season. ASI's toleration of this
procedure, as an Integral part of its dispatch operation, has been challenged by the
General Counsel, in this case, as an unfair labor practice. A consideration of the issues
raised in this connection, however, may be deferred, for the present.
ALASKA SALMON INDUSTRY, INC . 1567
patch ; he appears to have suggested , however, that there was no reason why the
respondent association could not send him out. The ASI representative allegedly
replied that he had been terminated so many times that he, Culbertson , did not
believe any member firm of the association would want him. Mendelsohn , accord-
ing to his testimony , told Culbertson , nevertheless , that he would appreciate dis-
patch, and the assistant manager allegedly replied that he would see what he
could do about it.8
After a reconciliation of the available evidence , I am satisfied that Mendelsohn
was first able to "get " his clearance card to Culbertson on June 6, at the "fill-in"
call for the Alaska Packers Association 's Chignik cannery. The record establishes
that the ASI representative was calling for case pilers, and that the complainant
and two other men responded.
Culbertson asked Mendelsohn , I find , if he had experience as a piler and was
answered in the affirmative . He then asked Mendelsohn , I find , if his service as
a piler had been in Alaska; the complainant told him that he had worked as a
piler in Alaska but had no record of it ; he also reported his experience as a long-
shoreman and warehouse worker and observed that employees doing such work
would have to be able to pile cases . The complainant 's testimony with respect to
Culbertson 's reply, which I credit, establishes that:
He said he couldn 't go by that , he would have to go by the record and the
record didn 't show I was a piler so therefore I didn 't get the job.
Mendelsohn could not recall the identity of the individual ultimately hired as a
plier at the cannery in question . Culbertson 's dispatch notes, however, establish
that Paul L . Raquel was found to have the most "seniority " and that he was se-
lected for referral , accordingly, and accepted by the cannery operator 's represen-
tative.9
On June 14, 1957, in the course of the fifth "fill-in" call scheduled at the hall,
for the Alaska Packers Association cannery at Naknek, Mendelsohn and Culbert-
son, I find, discussed the possibility of the complainant 's employment as a seamer
operator . 10 This job, I find , involves the routine operation of a machine which
solders bottoms on reformed cans, automatically . The ASI representative asked
Mendelsohn if he had ever been a seamer operator . Mendelsohn cited his experi-
ence in this capacity at Pacific American Fisheries ' Port Moller cannery. His
clearance cards with entries relative to his Port Moller employment were re-
8 As a witness for the respondent association ; Culbertson insisted that, despite his prior
designation as the ASI 's representative in charge of the 1957 dispatch operation, he had
not actually been present at the hall on May 27 and that Assistant Manager Sharpe had
actually supervised the dispatch operation there until June 3. This recital by the ASI
assistant manager, if credited , would tend to cast some doubt upon Mendelsohn 's testi-
mony with respect to the May 27 conversation noted. I cannot reject Culbertson's
testimony as to the date on which be reported at the hall . Upon the entire record, how-
ever, I am satisfied that Mendelsohn--despite his mistaken identification of Culbertson
as the individual involved-did, in fact , have a conversation of the indicated tenor with
an ASI representative on that date. Assistant Manager Sharpe , it may be noted, was
not questioned with respect to any talk he may have had with the complainant on or
about the date in question . The record thus reveals no denial, with respect to the incident,
on his part. And Mendelsohn impressed me, generally , as a credible witness. In the
absence of any testimony by Sharpe therefore , with respect to his contacts with Mendel-
sohn, I am satisfied that the complainant did have a conversation of the tenor indicated,
with an ASI representative , presumably Sharpe, at the outset of the dispatch operation.
8 Mendelsohn 's testimony with respect to this incident was circumstantially detailed.
And the ASI representative 's recollection is not in conflict with it. I have , therefore,
relied upon it, at least insofar as it may be said to summarize the conversation incidental
to the complainant ' s rejection . Mendelsohn , however, did identify the incident as occurring
on June 11 , 1957 , during the "fill-in" call for the Red Salmon Canning Company's Naknek
cannery. In the light of the entire record, I am satisfied that his testimony was erroneous
in this respect ; Culbertson 's recital in this connection reflected a reference to his dispatch
notes , and I believe it to be more reliable than Mendelsohn 's testimony , on the basis of
unassisted recollection , with respect to the date of the incident under consideration. It
may be noted , for example, that the available evidence otherwise establishes that the
Red Salmon Canning Company 's "fill -in" call was, in fact, scheduled and conducted on
the 12th rather than the 11th of the month.
io Mendelsohn could not recall whether he had submitted his clearance card to Culbert-
son in response to a call for seamers, or whether Culbertson had called him ; he could
only testify that Culbertson had his clearance card in hand.
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viewed; they indicated his dispatch as a warehouseman in 1953, a reformer oper-
ator in 1954, and as a "C." feeder-which would indicate status as either a can
feeder or cooler loader-during the 1955 season. The association's card index file
was checked, and Culbertson reported that his records contained nothing to show
that Mendelsohn had been a seamer operator. The assistant manager, I find, did
not refuse to dispatch Mendelsohn directly; instead, he renewed his call for a
reamer operator. Several applicants reported and claimed experience as reamer
operators; they were unable, however, to substantiate their claims. At this junc-
ture, Culbertson was asked to renew a previous call for a filler feeder. An appli-
cant reported in response to his call, and was referred immediately to the cannery
operator's personnel representative. While this referral was being completed,
Mendelsohn explained that the jobs of reformers and seamers in the can loft were
interchangeable, and that he had served as a seamer in Port Moller for 2 years
despite his dispatch as a reformer.
Reformers, I find, routinely feed and tend a machine which automatically re-
forms collapsed cans into open-end cylinders, preparatory to the addition of a
bottom by the seamer machine, and the subsequent addition of a top after the can
has been filled and prior to its insertion in a retort. Culbertson appears to have
rejected his contention; in any event, Mendelsohn was not dispatched.
The complainant's testimony indicates an assumption, on his part, that the appli-
cant Culbertson referred as a filler feeder while the indicated discussion was in
progress, was actually referred to fill the seamer job. I find nothing in the evi-
dence sufficient to warrant such a conclusion. The dispatch notes of the ASI
assistant manager clearly indicate a call for a filler feeder, and the ultimate selec-
tion of an applicant for the job. Mendelsohn's recital therefore, as I interpret it,
merely establishes Culbertson's unwillingness to recognize Mendelsohn as qualified
for work as a seamer operator, his subsequent inability to find any, other appli-
cant with the requisite experience, and his temporary abandonment of the effort
to find a seamer while he engaged in the referral of another applicant for work
as a filler feeder. Although Culbertson's testimony and his notes suggest an appli-
cation by Mendelsohn for the filler feeder job, I have credited the complainant's
testimony, which establishes his application for work as a seamer operator.
On June 17, 1957, I find, there was an unscheduled "fill-in" call for the Alaska
Packers Association cannery at Ugashik. Mendelsohn's credible testimony indi-
cates that, on this occasion, the men crowded forward and presented their clear-
ance cards in a somewhat disorderly fashion. The complainant was a member of
the group before the dispatch table. He requested Larry Itliong, the union dis-
patcher, to hand Assistant Manager Culbertson his clearance card. When the
dispatcher failed to do so, I find, Mendelsohn asked Gene Navarro, the Union's
business agent, to see what he could do. Navarro requested the dispatcher to sub-
mit Mendelsohn's card. It was not submitted, however, and he received no call.
On the occasion of his third direct contact with Culbertson Mendelsohn's name
was called on June 18, 1957, in the course of the "fill-in" call for the Egegik
cannery of the Alaska Packers Association. He was offered a position as slimer,"
I find, by the ASI representative. Mendelsohn asked if there were any other jobs
open. Culbertson immediately passed this question to Personnel Director Harlan
Cheyne of the Alaska Packers Association and was advised that no other jobs
were available. Mendelsohn thereupon indicated his willingness to accept the job.
At this juncture, the Alaska Packers cannery worker foreman asked if his em-
ployment had not been "terminated" at the Orca cannery after the 1956 season.
Mendelsohn replied in the affirmative, but insisted that his termination had not
been effectuated because of his work. In the midst of the discussion which en-
sued. I find, Personnel Director Cheyne announced that Mendelsohn would not be
considered qualified for the slimer's position, and that the Alaska Packers Associa-
tion would not accept him.
After his rejection, Mendelsohn stationed himself at the end of the dispatch
table and questioned several successful applicants with respect to the position for
which they were being hired. The first applicant referred and tentatively employed
after the slimer's position was filled displayed a referral card which indicated his
employment as a hoist operator. Another applicant displayed a card indicative
of his employment as a lye wash man. Mendelsohn could not, however, cate-
gorize positively any other job classification filled on this occasion. The dispatch
n Slimers are stationed at a conveyor belt in the "wet" section of the cannery and are
required to use knives to clean the salmon in order to prepare them for the canning
operation. Mendelsohn had never done this work in a salmon cannery, though he claims
experience, otherwise, as a cook.
ALASKA SALMON INDUSTRY, INC. 1569
notes of the ASI assistant manager , as read into the record , indicate that men
were hired as labeling machine operators , patchers , cooler loaders , clinchers , butch-
ers, filler feeders, slimers, and retort operators.32
On June 19, 1957, the first preference call for the second Port Moller crew was
scheduled: Cordero, the cannery worker foreman, was present and Mendelsohn
accosted him. His testimony with respect to the conversation which ensued, and
its aftermath , reads as follows:
I spoke to Mr. Cordero and I told him, "Look, I am having trouble getting
a job because your records are incorrect in regard to the work I did. I
would appreciate if you would go to Mr. Culbertson and tell him the various
jobs I did in Port Moller," and I explained to him about the reamer question.
It is my understanding that Cordero went to Mr. Culbertson and explained it
to him. Later on that day Mr. Culbertson came to me and explained that
he was sorry what had happened, that I was correct and that, it was unfor-
tunate but he was wrong about the [reformer] and the seamer job and he
realized that those jobs traded off.
When asked if Culbertson, thereafter, ever called his name for employment as a
seamer operator or reformer, Mendelsohn testified, credibly, that he had no way
of knowing whether these jobs had to be filled at any given time. His testimony
establishes, I find, that:
There are many jobs come up that you very seldom heard the name of the
job called in this hall this year. Usually men were called and given jobs and
there was no way for me to know unless I questioned them.
On July 1, 1957, an unscheduled "fill-in" call was set for the benefit of the Snug
Harbor cannery. Mendelsohn's testimony establishes, in the absence of contradic-
tion, that this firm employed two pilers and four can catchers at the "fill-in" Cali.
His testimony in this connection, which is not disputed, also indicates that one
referral as a piler was given to an applicant by the name of Ed Looney. Mendel-
sohn's undenied testimony indicates that Looney, by his own admission, had been
"terminated" by his 1956 employer on the basis of his asserted laziness. Never-
theless, it is indicated for the present record that he was hired. With respect to
the other piler position, Mendelsohn's effort to secure an employment referral was
again frustrated. His testimony with respect to the circumstances, which I credit,
reads as follows:
What happened is. they. called, for pilers again and they couldn't find any
pilers and finally a fellow that had no experience as a piler came up and
asked for the job and the foreman kept on insisting that this fellow be hired
and Mr. Culbertson suggested that we draw straws for it. There were three
of us trying to get this job. He was going to make three straws and whoever
got a certain straw would get the job. The foreman kept on insisting that
this man be hired and this man, I believe, had a yellow card instead of a
white card, which showed he didn't work last year, so he got the job because
the foreman insisted-even though at first Mr. Culbertson was going to draw
straws for it.
On July 9 however, there was a special emergency call for the Ugashik cannery;
12 men, I find, were requested. Mendelsohn's testimony with respect to this occa-
sion reads as follows:
I was in the office of the Union and in the secretary 's office and Mr. Navarro
was there and they said that a special call had come in for six men and they
were telling the fellows to go out by word of mouth and let everybody know
that the special call was on . I remained there and six men were hired. I
believe Mr. Sharpe was the one that sent them out. I am not positive, but
I believe it was Mr. Sharpe, and when they went up to the table Mr. Decano
[a representative of the cannery operator ] was involved in getting the men
ready to get dispatched. When they went up to the tables six names were
read off the list and these men were taken without anybody else being asked
about them.
12 As a witness, Mendelsohn insisted that he could have handled a job as a hoist
operator or lye wash man since he has actually done such work in Alaskan canneries.
He conceded that his employment record in the ASI files would not reveal his experience
in this connection, since the association's card index file, previously noted, would only
show the jobs to which he had been initially dispatched.
505395-59-vol. 122-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mendelsohn's testimony indicates the dispatch of six men. He characterized some
of the men dispatched as cooler loaders and insisted that one of the men dis-
patched had never been to Alaska previously. The available evidence indicates
that 12 men were actually dispatched to Ugashik on this occasion. The respond-
ent association has provided information with respect to eight of them; two were
dispatched as cooler loaders, two as butchers, and four as slimers. With respect
to one of the cooler loaders, one butcher, and two of the slimers, the respondent
association's record provides no registration information-and an inference would
seem to be warranted that these individuals had had no previous employment ex-
perience in the industry. Upon the entire record, I so find.
After the "fill-in" call on July 8 for the Nakat Packing Corporation, Sunny
Point cannery-for which Mendelsohn received no call-he decided, apparently, to
protest the failure of the respondent association to refer him for employment. The
record establishes that the Sunny Point "fill-in" call was the nineteenth such call
scheduled. One other "fill-in" call was scheduled for the morning of the 8th, and
a final call on the 16th of July. Mendelsohn's testimony establishes that he went
to President Mensalves of the Union and requested him to call Regional Director
William Gettings of the International Longshoremen's and Warehousemen's Union
to see if the latter could put some "pressure" on the respondent association to give
him employment. Mensalves, I find, telephoned Gettings and the latter, as a result,
spoke to Assistant Manager Sharpe of the respondent association.13 Sharpe, I find,
advised Gettings that Mendelsohn had been discharged by several different firms
and that he could not be hired under the agreement for that reason. When taxed
by• Gettings with the allegation that men without previous experience in the indus-
try had been hired for cannery work, Sharpe insisted that the men had been hired
according to the clearance given them by the Union, under the terms of the cur-
rent labor agreement, and that-as far as he knew-the men sent to Alaska were
not new employees. The regional director's affidavit also establishes in pertinent
part that:
Sharpe indicated to me that Mendelsohn's case was on appeal and that he
would not dispatch Mendelsohn to any cannery from which he was fired until
the case was resolved. Sharpe was careful not to say that he would not dis-
patch Mendelsohn to any cannery.
As a witness, after his attention was called to this language in the affidavit, Get-
tings testified categorically that Sharpe had said Mendelsohn would not be dis-
patched to any "place" at which he had been terminated previously; the ILWU
regional director went on to say, however, that there had been no conversation
indicative of ASI's intention not to dispatch Mendelsohn to another cannery, ex-
cept in connection with a reference to the respondent association's responsibility
as a result of the previous Board case which involved him. In this connection the
regional director first described his recollection as a "rough" one, then repeated it
as "near" as he could remember it. He subsequently characterized Sharpe's com-
ment in this connection as an "indication" and said that it gave him an " impres-
sion" as to the industry 's attitude toward the complainant , and a "feeling" as to
what their position was. His final summation, as a witness, reads as follows:
That [the previous Board hearing] would be the reason he wouldn't be dis-
patched until this thing was settled [;] when this thing was settled then he
would be dispatched. It wasn't because he was fired from other canneries that
he [Sharpe] was refusing to dispatch him [to] the canneries that he wasn't
fired from. If he wasn't dispatched to the other canneries it was because the
thing was pending before the Board and wait until that was settled.
13 The available evidence with respect to the substance of the conversation between
Regional Director Gettings and Sharpe is somewhat diffuse. As a witness, Mendelsohn
testified to the substance of the conversation as it was subsequently reported to him by
the ILWU regional director. His testimony was received, despite a hearsay objection by
the Respondent Employers' counsel. Regional Director Gettings testified directly with
respect to the substance of the conversation, and an affidavit with respect to it prepared
and executed approximately 4 weeks after it occurred was also proffered and received in
evidence without objection. I am satisfied that the regional director's affidavit reflects
his conversation with Sharpe accurately, as he himself has conceded, insofar as it goes.
My findings in this connection, therefore, will be based primarily upon the affidavit : the
regional director's oral testimony, however, may be considered reliable-in my opinion-
insofar as it supplements, and does not contradict, his antecedent statement.
ALASKA SALMON INDUSTRY, INC. 1571
In cross-examination, Gettings cited Sharpe's reference to the NLRB case then
pending, and testified that the general tenor of Sharpe's reference gave him the
"feeling" that Sharpe expected the Board's ultimate disposition of the pending case
to settle the Respondent's liability in the premises.
In this state of the record, I find the evidence inconclusive with respect to any
specific statement by Sharpe indicative of an intention on the part of the respond-
ent association not to dispatch Mendelsohn pending a Board determination in Case
No. 19-CA-1362, previously noted.
On July 22, 1957, Mendelsohn filed his initial charge in the present case; therein
the respondent association and its Member Employers were charged with a refusal
to employ the complainant because of his previous action in filing charges under
the statute in Case No. 19-CA-1362 and a related case involving Pacific American
Fisheries, Inc., previously noted. The charge also alleged, inter alia, that the Re-
spondent Employers at various times since January 17, 1957, had interfered with
the administration of the Union and contributed support to it, thus committing
an unfair labor practice within the meaning of Section 8(a)(1) and (2) of the
Act, as amended.
Thereafter, on November 27, 1957, the Board issued its Decision and Order in
Case No. 19-CA-1362, finding merit in certain of the General Counsel's excep-
tions. The recommendations of Trial Examiner Myers was adopted, therefore,
with certain additions and modifications. Specifically, the Board's order-ad-
dressed to the respondent association and its officers, agents, successors , members,
and assigns-directed that the parties designated:
Offer to select Peter Patrick Mendelsohn for employment in the next season
on the basis of his seniority and preferential employment rights in the 1956
season under the terms of the Respondent's contract with International Long-
shoremen's and Warehousemen's Union, Local No. 37. [Emphasis supplied.]
And the agency directed that Mendelsohn be made whole for any loss of pay suf-
fered by him as a result of the Respondent's discrimination against him, during the
period from June 14, 1956, to the time the Respondent makes an offer of selection
for employment to him.
The Board found it unnecessary to pass upon the General Counsel's request that
the respondent association be required to induce its members to accept Mendel-
sohn for employment for which he is eligible; it observed that the directives of
its order, including those concerned with the complainant's reemployment rights,
apply to both the respondent association and its members.
3. Conclusion
As previously noted , I find merit in the General Counsel 's contention that the
failure of the respondent association to select Mendelsohn for referral, and the
failure of the Member Employers to hire him, for the 1957 cannery season, repre-
sents a continuation of the discrimination previously practiced against him. This
conclusion , in my opinion , is warranted on two grounds.
(a) The refusal to accord first preference
In the light of the particular circumstances here present, I find illegal discrimi-
nation, at the outset, in the refusal of the respondent association and its Member
Employers to accord Mendelsohn a "first preference" under the contract, with
respect to his right to dispatch for 1957 employment at some cannery operated
by an ASI member firm.
It is, of course , true that the complainant could not present evidence of 1956
employment , under the terms of an applicable agreement , within the ASI bargain-
ing unit ; his 1956 employment record , clearly, was limited to work at an "inde-
pendent" cannery. Nevertheless, it would seem to be equally clear that his in-
ability to secure 1956 employment within the ASI unit-and his inability, therefore,
to establish a claim to "first preference " with respect to employment at the same
cannery, for the 1957 season-can only be attributed to the discrimination then
practiced against him , as found by Trial Examiner Myers in Case No . 19-CA-
1362, subject to subsequent Board affirmation . And I so find.
The formal service of the Trial Examiner's Intermediate Report and Recom-
mended Order in the cited case was obviously sufficient to put the respondent asso-
ciation on notice at least that "Alaska Salmon Industry, Inc., Seattle, Washington,
its officers , agents, successors , members, and assigns" would be required-under the
1572 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
Act, as amended-to cease and desist from discharging , refusing to hire , or other-
wise discriminating against any employee or prospective employee of any of the
association 's member firms because of his action in filing charges under the statute.
Under the circumstances , I find , the decision , of the respondent association to take
no exception to the . Intermediate -Report necessarily implied a willingness on its
part , as the agent of its member firms, to accept responsibility for the restoration
of the status quo ante with respect to the complainant. Cf., Waterfront Employers
of Washington , and its Employer Members, et al. (International Longshoremen's
and Warehousemen's Union), 98 NLRB 284, 295. And the only question to be
determined would therefore be one involving the precise course of conduct required
to effectuate the restoration in question. This agency has long held, with ample
judicial approval, that the basic objectives of the statute which it administers can
best be effectuated by the reinstatement and reimbursement of "employees" sub-
jected to discriminatory employment and discharge practices . In the promulgation
of its orders, accordingly, it has routinely called for the "immediate and full" rein-
statement of employees to their former or substantially equivalent positions "with-
out prejudice to their seniority" or other rights and privileges. Cf. Waterfront
Employers of Washington, supra. The respondent association, which has always
had the benefit of advice from able counsel, may properly be charged with notice
of this agency policy. And the available evidence , indeed , suggests that it was,
in fact, fully aware of the policy in question. I so find.
It would seem to follow, ineluctably, that ASI and its Member Employers were
subject to an obligation , statutory in derivation , to make the dispatch privilege
available to Mendelsohn for the 1957 season , upon request, without discrimination.
The decision of the respondent association to accord Mendelsohn a "second
preference" in dispatch with respect to the 1957 season, however, cannot be char-
acterized, realistically, as an action reasonably calculated to effectuate a true "res-
toratiori" of the - situation in which 'he would - have . found. himself, but, for the
discrimination to which he had previously been subjected. At the outset, of'the
1956 season , absent discrimination , the complainant , conceivably , could have quali-
fied for employment at a cannery operated by some ASI Member Employer, as a
"fill-in" worker. And by virtue of that employment, conceivably, he could have
acquired a "first preference" status, under the applicable trade agreement, with
respect to reemployment at the cannery for the 1957 season. The decision to
accord him "second preference" status cannot, therefore, be said to have made him
whole.
It is, of course, arguable that his 1956 employment record with a Member Em-
ployer of the respondent association would have been no better than his employ-
ment record at the Orca cannery . And, under the applicable trade agreement, a
"termination" for unsatisfactory work at the end of the 1956 season by some hypo-
thetical ASI member firm would have relegated him to the "second preference"
category for the next season, in any event. The discrimination attributable to the
respondent association with respect to the 1956 season, however, has obviously made
it impossible for this agency to ascertain what would have happened in this respect.
And the resultant uncertainty, I find, can only be resolved, in justice and equity,
against the respondent association and its member firms. Cf. Spitzer Motor Sales,
Inc., 102 NLRB 437, 453, footnote 52. In a court decision which this agency has
cited and relied upon many times-N.L.R.B. v. Remington Rand, Inc., 94 F. 2d
862, 872 (C.A. 2)-Circuit Judge Learned Hand, faced with the argument that the
occurrence of a contingency could have eliminated any justification for the unfair
labor practice finding presented for review, observed that:
It is of course possible that the parties might have split over wages, or over
the Elmira plant, even if the respondent had negotiated with the Joint Board.
But since the refusal [to negotiated was at least one cause of the strike, and
was a tort-a "substraction"-it rested upon the tort feasor to disentangle
the consequences for which it was chargeable from those from which it was
immune. Since it cannot shaw that the negotiations, if undertaken, would
have broken down, it cannot say that the loss of the men's job was due to a
contraversy which the Act does not affect to regulate. [Emphasis supplied.]
Similar considerations would' seem to be applicable here. At any rate, I so find.
It has been judicially observed, also, that the relief which the statute: empowers
the Board -to grant must be adapted to the situation which calls for redress.
N.L.R:B v. Mackay Radio & Telegraph Co., 304 U.S. 333, 348; N.L.R.B. v. George
W. Reed, 206 F. 2d 184 (C.A. 9). And in the situation presented for our con-
sideration, obviously, an immediate and full restoration of the status quo ante with
respect to the complainant, at the outset of the 1957 cannery season, without preju-
ALASKA SALMON INDUSTRY, INC. 1573
dice to his : seniority and other rights and privileges, could have been effectu-
ated by , an acknowledgment on the part of ASI , and its member firms of his right
to • claim the preferential status which he would have been free to acquire and
enjoy in the absence of discrimination . See Akin Products Company , 105 NLRB
401, 403 also. The failure of the respondent association and its Member Em-
ployers to accord him the indicated preference can only be characterized , there-
fore , as a continuation of the discrimination previously practiced against him. I so
find.14
As a witness , counsel for the respondent association has asserted that it could
not have recognized Mendelsohn 's right to "first preference " status under the
applicable trade agreement for the 1957 season, since it has never had the right
to hire employees; Attorney O'Neill insists that ASI, under its charter, could not
have directed. any of its Member Employers to hire a particular individual. This
argument , however , overlooks the fact that Mendelsohn 's right to seek employment,
without being required to face discrimination because of his action in filing charges
under the National Labor Relations Act, as amended, was, and is, a right estab-
lished by statute, and that the obligation to be fair, imposed generally by the legis-
lation, was an obligation of the ASI member firms as well as an association obli-
gation. The authority of the ASI to take corrective action in the premises, therefore,
and to require its Member Employers to take similar action, with respect to the
restoration of Mendelsohn to the status he would have enjoyed as a 1957 employ-
ment applicant absent antecedent discrimination, should not have been treated as
an authority limited by its articles of association.15 At the outset of the 1957
dispatch operation, I find, this should have been entirely clear to the respondent
association and its member firms; the Trial Examiner's Intermediate Report and
Recommended Order in Mendelsohn's previous case, as issued, had expressly rec-
ommended remedial action to the respondent association and its "members" as well.
I find no merit, therefore, in the ASI's apparent contention that it lacked the
power to establish or enforce Mendelsohn's right to "first preference" in employ-
ment for the 1957 season, after the receipt of the intermediate report in question-
and I reaffirm my conclusion that the failure or refusal of the respondent associa-
tion and its members to work out some arrangement whereby Mendelsohn would
have been accorded a "first preference" with respect to 1957 cannery employment,
at some cannery, involved a continuation of the discrimination to which he had
already been subjected.
(b) The refusal to dispatch
If it be assumed for the sake of argument , that the ASI's decision to accord
Mendelsohn "second preference " for the 1957 season did not involve a continua-
tion of antecedent discrimination , I am satisfied , nevertheless , that he was subjected
to discriminatory treatment at the ASI hall, during the 1957 dispatch operation.
At the very outset, on May 27, 1957, the complainant was advised that the
respondent association was under no obligation to dispatch him because this agency
had not ordered him dispatched ; this was an obvious reference to the absence of
any such remedial recommendation in the Trial Examiner 's intermediate report in
Case No. 19-CA-1362, previously issued . On the basis of the Trial Examiner's
14 Elsewhere in this Report, a reference has already been made to the suggestion of the
respondent association's counsel that Mendelsohn cannot be said to have had a right to
"first preference" with respect to 1957 employment within the ASI unit, because of his
"termination" after the 1955 season by Pacific American Fisheries, Inc., and his failure to
press an appeal from that action. The unwilli>lgness of this ASI member to reemploy
Mendelsohn at its Port Moller cannery for the 1956 season, however, cannot properly be
said to have affected the subsequent obligation of ASI and its Member Employers under
the statute ; even conceding, for the sake of argument, that Mendelsohn, under the
applicable agreement, would have been entitled to no more than a "second preference"
for 1956 employment, absent discrimination, he could, conceivably, have secured such
employment, and he could have made a satisfactory 1956 record. Such a record, under
the applicable agreement, would have enabled him to claim "first preference" status with
his 1956 employer, for the following season. And the failure of the respondent associa-
tion and its member firms to accord him this 1956 opportunity therefore, must be held
to preclude any contention, now, that he would not have been able to earn "first prefer-
ence" status for the 1957 season.
is Private articles of association cannot properly be construed to limit or define obliga-
tions imposed by statute ; nothing in the articles, therefore, could properly have been
cited by the ASI member firms to justify a failure or refusal, on their part, to effectuate
remedial action thereunder.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendation, an observation that the respondent association had not been
ordered, explicitly, to dispatch Mendelsohn may have been accurate; any infer-
ence, however, that the association was therefore under no legal obligation to
dispatch him at all clearly must be considered questionable, to say the least, under
the statute.16 Realistically viewed, statements of the general type indicated above
may justifiably be characterized, therefore, as reasonably calculated to convey the
impression to Mendelsohn that he might, conceivably, achieve dispatch as a mat-
ter of grace, but that he would not be able to claim such treatment as a matter
of right. 'Thus construed, I find, the comments attributed herein to an ASI repre-
sentative, on May 27, certainly set the stage for a subsequent discriminatory failure
or refusal on the part of the respondent association to refer Mendelsohn for avail-
able employment. In reaching this conclusion, of course, I have taken cognizance
of Managing Director Arnold's testimony that he instructed Culbertson and Sharpe
to accord Mendelsohn a "second preference" under the applicable trade agreement,
and that he likewise instructed them to eschew discrimination in connection with
the possible selection of the complainant for employment. I have no reason to
doubt that O'Neill, the respondent association's counsel, did advise its officials that
such a requirement was at least implicit, if not explicit, in the Trial Examiner's
remedial recommendation, and that Arnold did, in fact, issue the instructions sum-
marized in his testimony. However, upon the entire record and my observation
of the witnesses, I am equally satisfied that Culbertson and Sharpe, thereafter-
in the course of their service at the hall-gave ample evidence that they held a
highly technical view, to say the least, with respect to Mendelsohn's right to dis-
patch free of discrimination, and that they did, in fact, subject him to discrimi-
natory treatment.
On June 6, 1957, for example, the complainant's application for work as a case
piler was rejected; upon the entire record, I am satisfied that Culbertson's refusal
to refer him to the cannery operator for this position was discriminatory. Despite
Mendelsohn's acknowledged status as a "second preference" applicant, Paul L.
Raquel, a "fourth preference" applicant, was selected for referral. The evidence
establishes, and I find, that Raquel had been employed previously as a case piler
by the Alaska Packers Association at its Naknek cannery, during the 1951 season
only. The trade agreement then in effect provided that, when available employees
of equal preference and qualifications exceeded the number of jobs to be filled,
a selection should be made on the basis of seniority. And since Culbertson's testi-
mony establishes that Raquel's selection had been based upon his possession of
seniority, it may be assumed that the ASI representative had, preliminarily, equated
the latter's preferential status and qualifications with those of the complainant.
No real justification for such an equation, however, can possibly be found in the
record.
The superiority of Mendelsohn's "preference" status was patent. And his claim
to possess the "necessary skill, experience, and qualifications" to fill the job was
not actually denied, at the time, by the ASI representative. Mendelsohn's assertion
that he had served as a case piler in Alaska salmon canneries, for example, was
not challenged; Culbertson merely referred to the absence of any record indication
that he had ever been dispatched in that capacity. And the complainant's assertion
that he was an experienced longshoreman. and warehouse worker was not rejected
as unsubstantiated; it was rejected as irrelevant. These determinations were
clearly arbitrary.17
The Member Employers, I find, have long insisted, successfully, upon their right
to reassign cannery employees as needed, without regard to the job classifications
for which they may have been dispatched. Under the circumstances, therefore,
the respondent association would seem to be properly chargeable with notice that
le Clearly, the Respondent Employers were obligated-under the statute, as interpreted
by the Trial Examiner in his Intermediate Report-to eschew any resumption of the
discrimination previously practiced against Mendelsohn, and to restore him to the pre-
ferred status he would have acquired absent discrimination.
H Nothing in the relevant trade agreement authorized the ASI representative to deter-
mine, unilaterally, that the association's dispatch records should be considered determina-
tive with respect to the nature of a worker' s skills , in the face of a claim that the records
in question did not reflect his actual cannery experience, or skills acquired in some other
pursuit. The rejection of such claims, out of hand, clearly reveals a stultifying lack of
flexibility and would certainly tend to facilitate arbitrary action in the dispatching opera
tion. As a witness, it may be noted, Culbertson did admit, at one point, that experience
at a job in another industry, and cannery experience not noted on the ASI records, have
been accepted, upon occasion, as qualifying experience.
ALASKA SALMON INDUSTRY, INC . 1575
many employees are, in fact , reassigned and transferred between classifications after
their arrival at a cannery. And its reliance upon a set of records which merely
reveals the classification for which a given worker has been dispatched, as the
definitive basis for a determination with respect to his possession of the "necessary
skill, experience, and qualifications" to fill a particular job, may justifiably be char-
acterized, in my opinion, as unwarranted.
Culbertson's determination that Mendelsohn's noncannery experience as a long-
shoreman and warehouseman did not warrant consideration as relevant, in connec-
tion with his application for work as a case piler, also deserves characterization,
in my opinion, as an arbitrary and unreasonable determination. The skills in-
volved are obviously related.
As a witness, the ASI representative attempted, also, to justify his earlier judg-
ment by a reference to the fact that Mendelsohn is of less than average height
and, therefore, presumptively unable to pile cases as high as a cannery operator
might require. This contention, however, deserves short shrift. It was not cited
by Culbertson, at the hall, as the reason for his unwillingness to refer the com-
plainant; in the light of the record as a whole, it is clearly an afterthought. Note
may also be taken of the fact that Mendelsohn is not really short in stature, but
merely somewhat below average height; at the hearing, he appeared to be taller
than any of the Oriental representatives of the Union present to testify. And, in
any event, his undisputed testimony with respect to prior service as a case piler in
Alaskan canneries would seem to be sufficient, in the absence of rebuttal evidence,
to establish his capacity for such work, and the willingness of cannery operators
to consider him for it. I so find.
In this connection, we may turn, again, to Culbertson's assertion that Raquel
was selected for referral, over Mendelsohn, on the basis of seniority. Since this
criterion with respect to selection , under section 2(b) of the applicable agreement,
previously noted, has been defined as determinative only in a situation in which
available employees of "equal preference and qualifications" have presented them-
selves for a limited number of jobs, it may be assumed that Culbertson, some-
how, equated the claims of a "second preference" employee, Mendelsohn, whose
relevant experience of comparatively recent date had been asserted but not proved,
with the claims of a "fourth preference" employee, whose single season of relevant
experience was 6 years past. Such an equation, objectively considered-as we have
seen-deserves characterization as questionable. Aside from this aspect of the
matter, however, I find it worthy of note, also, that Culbertson apparently con-
sidered Raquel 's single season with the Alaska Packers Association as a case piler
more significant than Mendelsohn's 5-year employment record in the industry. In
the light of the contractual specification that seniority is to be determined by the
"highest number of seasons of continuous employment, (1) at the particular can-
nery; (2) with the company; and (3) in the industry," there may be a colorable
basis for the assistant manager's determination; seniority of any kind with the
particular firm within the ASI unit which is currently seeking employees may,
apparently, be treated as superior to established seniority with other firms in the
industry , regardless of its duration . This interpretation of the seniority provision
in the agreement, however, cannot really be described as patent. Culbertson's
evaluation of Raquel as the applicant with the most seniority certainly warrants
characterization , in my opinion , as a questionable exercise of his discretion, with
respect to the interpretation of the contractual clause in question.
The frustration of Mendelsohn 's effort , on June 14, 1957 , to secure employment
as a seamer operator may also be taken as indicative of arbitrariness and inflexi-
bility, attributable to Culbertson, with respect to the determination of the com-
plainant 's suitability for employment.
Upon the entire record, I have concluded-elsewhere in this Report-that the
ASI representative did call for seamer operators on the occasion in question.18
And his unwillingness to accept Mendelsohn 's contention that reformer operators
and seamers were customarily treated as interchangeable in the Alaskan canneries
certainly deserves characterization as an example of arbitrary rigidity in the dis-
' The seamer's position, it is true, is not listed in ASI trade agreements. The listed
positions , however, do include reform feeders and general can loft workmen. And taken
as a whole, the present record may certainly be held to establish that the "reamer"
classification is, in fact, comprehended within one of the job classifications actually listed
in the applicable agreement. I am satisfied, in the light of the available evidence, that
the "seamer" classification has actually been used in the industry to designate a particular
job, and that the job content of the position thus conventionally designated is, in fact,
generally understood.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
patch operation , to Mendelsohn 's disadvantage . The evidence establishes that re-
form feeders and seamer operators are both , essentially , machine tenders ;, that, in
each case, they are responsible for the maintenance of a flow of material to an
automatic machine which performs a portion of the work involved in-can ' fabri-
cation ; and that , in each case, they merely tend the machines in question to guard
against mechanical breakdowns. The jobs are, in -fact, interchangeable I find;
Mendelsohn so testified, credibly, and ASI Managing Director Arnold subsequently
concurred. Culbertson's refusal to consider Mendelsohn for the post, therefore,
must be considered an arbitrary decision.19 And his action in postponing or de-
ferring any call for a reamer operator , instead of referring the complainant, cer-
tainly warrants characterization as discriminatory.
In this connection, reference may be made to Mendelsohn's testimony, which I
credit, with respect to the assistant manager 's subsequent admission of his "unfor-
tunate" failure to realize , earlier, that the position of a seamer operator was
interchangeable with the position which Mendelsohn had once been dispatched to
fill at the Port Moller cannery.
In cross-examination, Culbertson conceded that a "seamer feeder" was, in fact,
subsequently referred to the cannery operator for employment, in the course of the
"fill-in" call now under consideration. And his dispatch records clearly establish
that Luis Quianio was, in fact, selected for this position. The association file estab-
lishes Quianio's experience as a cannery worker in "various and sundry" capacities
between 1945 and 1952, his lack of 1953 industry employment, his dispatch in
1954 as a "topper" operating a machine which sealed cans, and his 1955 employ-
ment as a case piler. In the absence of a 1956 employment record within the
ASI unit, Quianio would normally have been considered entitled to a "third pref-
erence" only. When asked to explain Quianio's selection over the complainant,
under the circumstances, Culbertson made no attempt to describe him as better
qualified, and could only speculate as to the possibility that he may have been on
"some other list" indicative of 1956 employment, not noted in the association
records.
Upon the entire record, I am satisfied that the work of a seamer operator is
not difficult, and that Mendelsohn's previous cannery experience would have quali-
fied him to perform it. And it follows, I find, that Culbertson's ultimate failure
to select the complainant for the position, and his referral of an applicant with
a subordinate preference, clearly deserves characterization as discriminatory.
The available evidence establishes only one occasion on which Mendelsohn was
called by name for referral; on June 18, 1957, as previously noted, he was offered
a chance to accept referral as a slimer. Individuals thus employed clean fish with
a knife; although the position does not appear to require any skill, endurance and
some degree of manual dexterity are apparently considered desirable. Mendel-
sohn, however, had never been given such an assignment at a cannery. And the
association records contained no indication of his prior dispatch in such a capacity.
When he inquired if other jobs were available, he was advised that there were
none. The dispatch records of the ASI representative, however, clearly show that
men were actually dispatched , on this occasion , as labelling machine operators,
cooler loaders, and clinchers.
As a witness, Culbertson could give no satisfactory explanation of his sudden
determination to offer Mendelsohn referral as a slimer, despite his inability to
claim or demonstrate prior experience in that capacity; nor could he explain, ade-
quately, his ultimate failure to offer Mendelsohn referral, on this occasion, to one
of the two or more available positions for which he might have been able to
qualify, on the basis of the association's own records.20 Since the complainant's
name appears to have been the second name on the registration list utilized in
connection with this' "fill-in" call, and since he must have been, therefore, one of
the first applicants called, Culbertson's failure to refer him for suitable employ-
ment, after the cannery operator's decision to reject him as a slimer, cannot be
rationally explained. The conduct attributable to the ASI representative is, of
course. oven to interpretation as a deliberate effort to give an impression that
Mendelsohn was actively being considered for referral, and that his inability to
19 Mendelsohn's employment record clearly indicated his dispatch as a reformer operator
for the 1954 season; and no question has been raised, in this case, with respect to his
competence in that capacity.
w As a witness, Culbertson indicated that he had abandoned any attempt to exercise
judgment, on this occasion, with respect to Mendelsohn's qualifications : his testimony
shows that he offered to refer the complainant as a slimer with the thought in mind that
"maybe" the cannery operator would hire him.
ALASKA SALMON INDUSTRY, INC. 1577
secure employment ought not to be considered indicative of a type of discrimina-
tion statutorily prohibited. I find it unnecessary, however, to draw the indicated
inference; even in the face of an assumption that Culbertson's offer to refer Men-
delsohn for employment as a slimer was made in good faith, his subsequent fail-
ure to offer the complainant a chance for other employment, of the type previously
indicated, was clearly discriminatory. And I so find.
The ASI representative, as a witness, refused to concede that this was the only
occasion upon which he had ever called Mendelsohn by name. He was unable,
however, to recall any other specific occasion. The present record establishes that
he noted the occasions when Mendelsohn applied for work or was called; obvi-
ously, as the General Counsel points out, the complainant was not being "over-
looked or lost in the shuffle" at the hall. Culbertson could not, however, produce
a note indicative of any other specific call. And there is nothing in the record,
taken as a whole, to indicate that Mendelsohn was ever called by name on another
occasion, for employment within the ASI unit. The record does indicate that
Mendelsohn's name was actually called, once, when a second crew was being dis-
patched to the Orca cannery. The available evidence suggests that he did not
hear the call, or that he heard it and ignored it, because he knew that he would
not be given a job there. And a New England Fish Company representative,
called in behalf of the Respondent Employers did, in fact, testify that Mendelsohn
would not have been given the job had he come forward. The incident, however,
cannot be said to have implicated the ASI or its Member Employers; no effort
has been made, therefore, to discuss it at length.
In the absence of effective contradiction. Mendelsohn's testimony also estab-
lishes his subsequent inability to achieve referral as a case piler, twice, during the
unscheduled "fill-in" call for the Snug Harbor cannery. Ed Looney, a "second
preference" employee with a questionable employment history, was, I find, selected
for referral, at the outset, in preference to the complainant. As a witness, Cul-
bertson made no reference to the incident; the record, therefore, contains no
evidence adduced to justify Looney's selection for referral. And with respect to
the other available case piler position, Mendelsohn's testimony establishes Culbert-
son's apparent willingness to select an applicant for referral by lot. Although the
ASI agreements have sanctioned this procedure as an appropriate one in the case
of applicants with equal preference and qualifications, when a selection cannot be
made on the basis of seniority, Mendelsohn's testimony, which I credit, will clearly
support a conclusion that the lottery candidates on the occasion under considera-
tion could not have demonstrated an equal preference and equal qualification. The
attempt of the ASI representative to resolve the question of selection, therefore,
by "drawing straws" clearly reflected an unwillingness on his part to assume the
responsibility for a selection which the agreement required him to make. And
Mendelsohn's effort to secure an employment referral, it is clear, was thereby
frustrated. I find the incident, indicative, again , of Culbertson's disposition to
treat the complainant with less consideration than the other applicants present,
and conclude that it warrants characterization, also, as an instance of discrimination.
The circumstances attendant upon the special emergency call for the Alaska
Packers Association's Ugashik cannery on July 9, 1957, are set forth at some
length in the record. The available evidence, for example, establishes that eight
of the men dispatched had a preferential status subordinate to that of the com-
plainant and that two of these were dispatched to work as cooler loaders, a posi-
tion in which Mendelsohn had previously had experience. Upon the entire record,
however, I find that substantial evidence has not been adduced to establish that
the complainant's failure to achieve dispatch on this occasion derived from illegal
discrimination. The testimony shows, in this connection, that the union business
agent had previously been requested by an association representative to locate
applicants for dispatch, and it shows that the union business agent did, in fact,
provide the list of names ultimately used by Assistant Manager Sharpe to effectu-
ate referrals. There is, thereforeL some justification for an inference, perhaps,
that Sharpe may have been negligent, on this occasion, by virtue of his failure
to solicit additional applications from the other men present in the hall, Mendel-
sohn included; such a solicitation might well have turned up qualified men, such
as the complainant, with a right to priority in dispatch. The available evidence,
however, will not, in my opinion, support a conclusion that Sharpe's failure to
take the action suggested was deliberate. It is conceded that the entire dispatch
operation, on this occasion, was hurried. And a negligent failure to enforce the
preferential employment provisions of the applicable trade agreement cannot be
considered evidence of the discrimination statutorily proscribed. Cf. Local No.
1400, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al.,
1578 DECISIONS. OF NATIONAL. LABOR - RELATIONS BOARD
115 NLRB 126, 127. There is testimony, of course, that an Alaska Packers Asso-
ciation representative "taunted" the complainant with respect to the call, and told
him that he would not be dispatched. This testimony, however, was not prof-
fered by the complainant, and in the absence of any statement by him tending
to corroborate it, I find the record, taken as a whole, insufficient to establish that
the omission of Mendelsohn's name from the dispatch list was solicited or sug-
gested by the employer's representative.
The General Counsel also adduced evidence, during the hearing, to establish that
the Respondent Employers hired 103 "new" men, so-called, for cannery work
during the 1957 season, in preference to the complainant. A search of the ASI's
records, however, would apparently warrant an inference or conclusion that 37
of these were dispatched to independent canneries, that 21 are not identifiable as
.employees who secured cannery work as a result of ASI dispatch, and that 2 are
entirely unidentifiable. Of the 43 men on the Union's list concededly dispatched
through the ASI hall, only 8 appear to have had 1956 cannery experience; 5 others
appear to have had 1954 or 1955 employment in the trade. The individuals thus
designated, under the applicable 1957 agreement, would have exhausted the first
three contractual preference categories. Within the fourth preference group, seven
appear to have had 1953 experience, three 1952 experience, and three 1951 expe-
rience; one employee appears to have had a 1950 record only, one a 1949 record,
two a 1948 record, and one a 1943 record. Twelve of the men dispatched by the
respondent association appear to have had no ASI employment record at all. I so
find. Whether their referral and employment reflects a deliberate attempt on the
.part of the Respondent Employers to circumvent the employment preferences estab-
lished under the applicable trade agreement, or mere carelessness on their part in
the application of the contractually established referral priorities cannot be deter-
mined, however, on the basis of the evidence available-although Culbertson did
concede, as a witness , that "quite a number" of applicants with preferential status
subordinate to Mendelsohn's were dispatched to the canneries. I have, therefore,
disregarded the testimonial and documentary evidence proffered with respect to
these "irregular" referrals; it does not, in the absence of further explanation, war-
rant an inference that the Respondent Employers knowingly and deliberately hired
and dispatched men without experience or without a superior claim to available
employment, in preference to the complainant herein, for a statutorily invalid
reason.
Upon the entire record, however, I am entirely satisfied that Mendelsohn was
treated discriminatorily as a "second preference" applicant for cannery employ-
ment.
Prior to June 18, 1957, he was never called by name in the course of any
"fill-in" call . And when he did succeed in bringing his application to Culbertson's
attention, it was rejected for insufficient reasons. On June 18, he was called by
name and offered a job which he had never previously held; subsequent to his
rejection by the cannery operator, he was not selected for referral to any of the
other positions, immediately available, at which he could demonstrate experience.
After this incident, also, there is no indication that he was ever called by name
again , despite the fact that his name necessarily led the registration list in the
possession of the respondent association.
It is, of course, true-as the Respondent Employers now argue-that an appli-
cant for cannery employment, with a "second preference" or less, could have
established his right to referral, under the applicable agreement, only by a demon-
. stration that he possessed the "necessary skill, experience and qualifications" to
fill the job available. And it is likewise true that, under the agreement, the em-
. ployers had a right to make the requisite determination, with respect to the skill,
experience, and qualifications possessed by second and third preference applicants.
This right to reject job applicants allegedly unqualified, however, was contractually
limited; it was not to be exercised arbitrarily. And, essentially, it is my conclu-
sion , herein, that the indicated right of rejection, reserved to the employers, was,
in fact, exercised arbitrarily in Mendelsohn's case. This may well have involved
.a breach of a contractual commitment on the part of the ASI and its member
firms-but the argument that nothing more was involved must be rejected as with-
out merit. If the failure or refusal of the ASI representative to evaluate Mendel-
sohn's skill, experience and qualifications fairly can justifiably be said to have
stemmed from the original discrimination practiced against him, it warrants char-
acterization as an unfair labor practice. And I have found, herein , that it did
derive from the original discrimination attributable to the respondent association
• and its members.
O'Neill, I find, may well have suggested Mendelsohn' s classification as a "sec-
ALASKA SALMON INDUSTRY, INC . 1579
,ond preference" applicant . And Managing Director Arnold of the respondent
association may well have instructed his assistant managers to recognize the corn-
plainant 's right to the indicated preference. Throughout the ASI's 1957 dispatch
operation, however, he appears to have been treated, in fact, with less considera-
tion than his preferential status warranted. And I have so found.
For all this, of course, the respondent association and its member firms must,
necessarily, share a joint responsibility.
And, in the absence of any reasonable explanation or justification , I find, Men-
delsohn's failure to achieve dispatch to an Alaskan salmon cannery, during the
1957 season, may only be construed, realistically, as a continuation of the dis-
crimination to which he had previously been subjected.
The General Counsel-anticipating a defense that Mendelsohn may have been
denied ASI referral or hire because of his record of previous "terminations" by
various cannery operators-adduced evidence that some terminated employees have
been rehired, in the past, by their former employers or other cannery operators.
The Respondent Employers, however, have made no attempt to argue that Mendel-
sohn was actually denied a referral to available employment on any specific occa-
sion, or that he was refused 1957 employment by any designated cannery oper-
ator, just because of his termination record. It is argued generally-in the brief
submitted by the attorney for ASI and its member firms-that Mendelsohn's three
terminations in 5 years demonstrate his lack of competence for cannery work, but
there is no evidence that an ASI representative ever refused him a referral, or
that any Member Employer ever refused to hire him, because of the fact that his
termination record, separately considered, allegedly warranted a conclusion that he
lacked competence. In this state of the record, the evidence adduced by the
General., Counsel to show the inadequacy of any contention bottomed upon the
termination as a defense , need not be evaluated.
B. The contribution of support to the Union
1. The issue
It is alleged in the complaint that the Respondent Employers have selected work-
men for hire , at the hall maintained and supervised by the respondent association
"only after they have been cleared by the Union as being members of the Union
in good standing , who have paid all dues, fees, fines, and assessments " owing to
that organization. Additionally, the General Counsel alleges that workmen have
been selected for hire at the hall only after their execution of authorizations for
the deduction of union dues, in a predetermined amount, from their pay for the
forthcoming canning season. This course of conduct on the part of the Respondent
Employers is alleged to constitute a contribution of support to the Union herein,
in violation of Section 8(a)(2) of the Act, as amended, and an encouragement of
union membership by discrimination in regard to hire or employment tenure, in
violation of Section 8(a)(3) of the statute.
2. Employment registration and the dispatch function
The available evidence relative to this aspect of the present case consists entirely
of the testimony proffered by union officials, who testified at the General Counsel's
call. With respect to registration , it establishes that applicants for salmon cannery
emplovment not entitled to claim "first preference" status are requested to register
with the union secretary. As an incident of registration, they are asked to note
their name, their social security number, their job classification, their last em-
ployer, and the year of their last salmon cannery employment. And concurrently,
as previously noted, the Union issues clearance cards.21 The testimony of Matias
J. Lagunilla, the Union secretary in charge of registration for the 1957 season,
establishes in the absence of contradiction that employment applicants who wished
to register were free to do so-even if unable to meet their "financial obligation"
to the organisation . There is testimony by the union secretary, of course, that
the dues books of union members, whether registered or not, would not be
"cleared" by the union dispatcher until their financial obligations, if any, were met.
The available evidence, however, establishes in the absence of contradiction that
21 At the outset of the 1957 dispatch operation, Union members unable to claim employ-
ment in the industry during the previous year received a "pink" clearance card from the
union secretary, upon the discharge of their financial obligations. Members with a
1956 employment record in the industry received white clearance cards from the union
dispatcher.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment applicants who sought to register prior to having their books "cleared"
did not "necessarily" have to pay or promise payment. Lagunilla's testimony in
this connection was corroborated by that of Business Agent Navarro; he insisted,
as a witness, that the Union's effort to collect any sums from employment appli-
cants had no "bearing" upon their right to register and the Union's obligation to
report their registration. I credit this testimony. Lagunilla did testify at one
point, in direct examination, that "members" who registered could not be dis-
patched until their dues books were cleared of any sums owed to the Union.
Nothing in the record, however, even suggests that such a policy was . ever
implemented.
With respect to the checkoff issue, it appears to be conceded that the union dis-
patcher and his assistants customarily solicited job applicants to execute a dues
checkoff assignment at the dispatching table, immediately after their selection for
referral by the ASI representative. Under the applicable agreement, the Respond-
ent Employers were committed to "recognize" and honor such assignments. See
section 23 of the 1957 contract. The available evidence in this connection, how-
ever, will not support a conclusion that the execution of the indicated dues assign-
ment was considered a condition precedent to the completion of the dispatch oper-
ation . Business Agent Navarro, for example, testified without contradiction that:
Oh, as far as the check-off is concerned, our members come and sign it at any
day, during the dispatching or after the dispatching or sometimes they even
sign in the cannery, as far as that is concerned. This is a voluntary assign-
ment when they come to ask for those things.
Navarro conceded that approximately 99 percent of the men dispatched would
sign a checkoff authorization either prior to their selection for referral or while
they were at the dispatching table. His testimony also establishes clearly, how-
ever, that some of the job applicants processed in this fashion executed dues assign-
ments after the date on which they were hired and notified to report for a physical
examination . I so find.
3. Conclusion
In this state of the record, I find the available evidence insufficient to sustain
the General Counsel' s position.
The Union's contractual duty with respect to the registration function, at all
material times, has clearly extended to the registration of "all" applicants for can-
nery work within the ASI bargaining unit. And no attempt has been made, in
this case, to challenge the contractual provision in question, itself, as an improper
one; on its face, certainly, it cannot be described, legitimately, as a provision which
directed or permitted the Union to limit registration discriminatorily.
No evidence has been adduced, either, to show that the Union has, In fact,
limited its registration facilities to members clear of any financial obligation to the
organization . As noted elsewhere in this report , the registration of employment
applicants entitled to claim a "fourth preference" necessarily subsumed the regis-
tration of nonmembers. And it may be noted, additionally, that none of the em-
ployment preferences contractually recognized , at material times, have rested upon
union membership in good standing. In the light of Lagunilla's uncontradicted
testimony . that financial settlements have not been required as a condition prece-
dent to registration, in short, nothing in the record can be said to support the
General Counsel's contention that ASI and its Member Employers have selected
workmen for hire only after their clearance by the Union as members in good
standing who have paid all dues , fees, fines , and assessments owed to the organi-
zation.
Even in the face of an assumption, for the sake of argument, that the Union
has, routinely, permitted only union members in good standing to register, the
available evidence would be insufficient to sustain the General Counsel' s conten-
tion that the Respondent Employers have contributed support to the Union and
,encouraged union membership by discrimination with respect to hire and employ-
ment tenure. The agreement under consideration, as we have seen, did not direct
or permit a limitation of the Union's duty to register employment applicants, and
there is not the slightest evidence in the record that responsible ASI representatives
have ever been aware of any effort on the part of the Union to confine registration
to members in good standing only. Certainly, the mere proximity of the dispatch
operation to the office of the union secretary-by virtue of the ASI's decision to
use-the,union headquarters as its hiring hall-cannot , itself, support an inference
to that effect. And, in the absence of knowledge attributable to the respondent
ALASKA SALMON INDUSTRY, INC. 1581
association with respect to such an alleged limitation of the registration list, an
inference of association acquiescence or condonation with respect to the practice
in question would certainly seem to be precluded. I so find.
. The General Counsel argues, in his brief, that the Respondent Employers, under
the applicable agreement, accepted responsibility for the Union's course of conduct
in the registration of applicants. And it is contended, therefore, that this case
may be analogized to those in which this agency has held that an employer who
entrusts the hiring function to a union may be held liable for any unlawful dis-
crimination practiced by the latter in carrying out the function. Cf. Mountain
Pacific, Seattle and Tacoma Chapters of the Associated General Contractors of
America, Inc., et al., 117 NLRB 1319, Pacific Intermountain Express Company,
107 NLRB 837, enfd. 225 F. 2d 343 (C.A. 8); George D. Auchter Company, et al.,
102 NLRB 881, enfd. 209 F. 2d 273 (C.A. 5). In the present case, however, there
is nothing to show a contractual delegation to the Union of any unrestricted right
to conduct the job 'registration and prepare a registration list. And it surely can-
not be presumed as a matter of law, absent evidence, that the Union would flout
its contractual obligation to register "all" applicants, or that the Respondent Em-
ployers would be aware of its conduct, if it did.
The issue presented with respect to the checkoff procedure, however, cannot be
settled as easily. Upon the entire record there can be no doubt, of course, in
regard to the respondent association's awareness of the fact that the union repre-
sentatives at the dispatching table were routinely soliciting checkoff authorizations
from the job applicants referred to cannery operators for employment, in the
midst of the referral process and prior to each applicant's actual hire. Since
knowledge on the part of the ASI representative with respect to this aspect of the
'dispatch operation may be taken as datum, the association's acquiescence and con-
donation with respect to the practice may legitimately be inferred. And a signifi-
cant question , therefore , necessarily arises.
There is, of course , nothing in the nature of a trade agreement providing for
a voluntary dues checkoff which is illegal , per se, under any of the provisions of
Section 8 of the Act, as amended. And the Board, indeed, has held, generally,
that the existence of such an agreement constitutes a violation of the statute only
if the agreement is made with an organization company-dominated at the time of
its execution , or with an organization which , for some other reason , did not repre-
sent an uncoerced majority of the employees involved . Salant & Salant, Inc., 88
NLRB 816, 818-819 ; see also Virginia Electric and Power Company v. N.L.R.B.,
319 U:S. 533, affg. 44 NLRB 404; Food Machinery Corporation, 41 NLRB 1428.
No violation of the statute may be found, in short, on the basis of the existence
of a checkoff agreement, if it inures to the benefit of a union which represents an
uncoerced employee majority, even if the organization has been otherwise illegally
assisted or supported. If, however, the evidence can be said to warrant the con-
clusion that an employer contractually committed to honor voluntary checkoff
authorizations, for the benefit of a union which represents an uncoerced majority,
has actually coerced its employees to accept the checkoff, and thus enforced an
.illegal union-security provision , the commission of an unfair labor practice is estab-
lished. Cf. Federal Stores Division of Spiegel, Inc., et al., 91 NLRB 647, 648-
649, 666-669.
With the law in this state, the issue presented for determination in the present
case may be narrowly defined. Specific acts of coercion, reasonably calculated to
force employee acquiescence with respect to the deduction of union dues from
wages, in the absence of any contract obligation lawfully laid upon the employees
to maintain paid -up membership in the union as a condition of employment , neces-
sarily infringe upon their statutorily guaranteed right to refrain from assisting a
labor organization. Federal Stores, supra. May the demonstrated tolerance of the
Respondent Employers in this case , then , with respect to the union practice of
soliciting checkoff authorizations in the midst of the dispatch operation-to maxi-
mize compliance with a legitimate union membership requirement-be character-
ized as coercive? In the light of the available evidence and the applicable law
this question, in my opinion , should be answered in the negative.
Reference may be made, at the outset, to the uncontested testimony of the union
representatives 'in this case that a minority of the job applicants selected for re-
ferral by the ASI representative were, in fact, allowed, at material times, to defer
the execution of any checkoff authorization until their employment was confirmed;
.in some cases, indeed , they appear to have been able to postpone the execution
of any such authorization until their actual arrival at an Alaskan cannery . Nothing
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the record, then, will support the General Counsel's contention that the respond=
ent association and its member firms have selected workers for referral and hire-
only after their execution of a checkoff authorization. There is, of course , testi-
mony that approximately 99 percent of the applicants at the hall did, customarily..
execute the indicated- authorization- prior to their appearance at the dispatch table,.
or while they were "up" there. In the absence, however, of any testimony with.
respect to an objective indication by the industry representatives at the table that.
the execution of such an authorization at union solicitation would be considered
a condition precedent to selection for referral or hire, an inference that the pat--
tern of behavior exhibited by a majority of the job applicants was coercively in-
duced would certainly be speculative.
And in addition, it should be noted in any event that the applicable trade agree-
ment, at all material times, provided that all of the employees covered by it would:
have to become union members within 30 days of the commencement of their
employment, as a condition of further employment. On its face, this requirement
appears to be unobjectionable; the agreement which included it was clearly nego-
tiated and executed prior to the employment of any 1957 cannery workers. In the
very nature of things, also, the union membership requirement noted necessarily
became "operative" only after the employees reached their respective canneries in
the Territory, at a considerable distance from the Union's office, with a shop.
steward or delegate as the only union representative readily available to enforce
compliance with its terms. Obviously, the delegation of complete responsibility
to the union steward, in the premises, with respect to the enforcement of the
"union-shop" provision, might well have been considered administratively unwise:
And since the indicated membership requirement has not been attacked, in this
case, as invalid in any respect, the action of the Union in soliciting checkoff
authorizations in the midst of the dispatch operation, instead , would seem to be
properly open to characterization only as a practice reasonably calculated to maxi-
mize compliance with a presumptively legitimate union membership obligation, laid'
upon the employees. I so find. The decisional doctrine of the Federal Stores
case, therefore, cannot properly be said to have application here. And it follows,
I find, that the acquiescence of the Respondent Employers with respect to the-
Union's course of conduct, noted, cannot be considered an unfair labor practice..
The cases cited by the General Counsel in support of his contention to the con-
trary are not, in my opinion, apposite. I have evaluated their significance as:
precedent, and find them-like the Federal Stores case, noted-distinguishable.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON' COMMERCE
The course of conduct attributable to the Respondent Employers, as set forth
in section III, above, which occurred in connection with their operations as de-
scribed in section I, above, has a close, intimate, and substantial relationship to,
trade, traffic, and commerce among the several States, and between the Territory
of Alaska and the several States and other Territories, and within the Territory of
Alaska, and tends to lead to labor disputes. burdening and obstructing commerce-
and the free flow of commerce.
V. THE REMEDY
Since it has been found that ASI and its various Member Employers' have en-
gaged in certain unfair labor practices, it will be recommended that they cease and
desist therefrom, and that they take certain affirmative action designed to effectuate,
the policies of the statute.
Specifically, it has been found that ASI-acting through its designated represeri-
tatives-has discriminatorily failed and refused to select Mendelsohn for referral'
as an applicant for Alaskan salmon cannery employment, and that the respondent
association's Member Employers have refused to hire him for such employment,
during the 1957 salmon canning season. This conduct, it has been found, repre-
sented a continuation of the discrimination practiced against him by the respondent
association and its member firms during the 1956 season. A recommendation will'
be made, therefore, that the respondent association select Mendelsohn for employ-
ment referral, and that one of the association's Member Employers select him for
employment, during the 1958 season, without prejudice to the seniority, preferen-
tial employment status, and other rights and privileges, which he would have been
'able to acquire and enjoy as a 1956-57 job applicant, in the absence of discrimina-
ALASKA SALMON INDUSTRY, INC. 1583
tion .22 It will also be recommended that ASI and its Member Employers, jointly
and severally, make Mendelsohn whole for any loss of pay or other incidents of
the employment relationship which he may have suffered by reason of the dis-
crimination practiced against him during the 1957 season, by the payment to him
of a sum of money equal to the amount which he normally would have earned as
wages between the beginning of the 1957 Alaska salmon canning season and the
date of the referral and employment offers herein recommended, less his net earn-
ings, if any, during that period. Cf. Crossett Lumber Company, 8 NLRB 440,
497-498; Republic Steel Corporation v. N.L.R.B., 311 U.S. 7 if. The complain-
ant's pay losses should be computed on a quarterly basis, in the manner customarily
prescribed by this agency. See F. W. Woolworth Company, 90 NLRB 289, 291-
294; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344 if.
In order to insure expeditious compliance with these recommendations, in regard
to back pay and reinstatement, it will also be recommended, finally, that the Re-
spondent Employers, upon request, make available to the Board, and its agents,.
all pertinent records.
Since the course of conduct herein found to constitute unfair labor practices
attributable to the Respondent Employers represents a continuation of the unfair
labor practices previously found to have been committed, it will also be recom-
mended-for the reasons set forth by the Trial Examiner in the earlier case involv-
ing ASI and its members-that the Respondent Employers cease and desist from
infringement , in any other manner, upon the rights of employees under Section 7
of the Act, as amended.
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon the entire record in the
case, I.have reached the following conclusions of law:
1. The respondent association, Alaska Salmon Industry, Inc., and its member
firms, are employers engaged in commerce and business activities which affect com-
merce, within the meaning of Section 2(2), (6) and (7) of the Act, as amended.
2. International Longshoremen's and Warehousemen's Union, Local No. 37, is
a labor organization within the meaning of Section 2(5) of the Act, as amended,
which admits employees of the ASI Member Employers to membership.
3. By the continuance of their antecedent discrimination with respect to the re-
ferral, hire, and employment tenure of Peter Patrick Mendelsohn, because of his
action in filing charges under the Act, as amended, against an ASI member firm,
the Respondent Employers have engaged in and are engaging in unfair labor prac-
tices within the meaning of. Section 8(a)(1) and (4) of the Act, as amended.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2(6) and (7) of the Act, as amended.
5. The demonstrated tolerance of the Respondent Employers, with respect to the
union practice of soliciting the settlement of outstanding financial obligations by
The record establishes that Mendelsohn 's seniority record, ' and his preferential em-
ployment status , at the outset of the 1956 season rested upon . the provisions of a trade
agreement previously negotiated and executed to govern the wages , hours , and working
conditions of nonresident cannery workers in the Alaskan salmon canneries during the
season indicated . Before the 1957 season began , this agreement was superseded the new
agreement between the Respondent Employers and the Union herein, however , embodied
no substantive change with respect to the preferential employment status of the variously
designated groups of job applicants , or with respect to the significance of their industry
seniority . My remedial -recommendation in this case, therefore , Is to be treated as
predicated upon an assumption that the -trade agreement to be negotiated and executed
by the Respondent Employers and the Union for the 1958 cannery season will -again
recapitulate , in substance , the provisions set forth in previous agreements , with respect
to the preferences to be observed in employment . Upon this assumption , I find that
compliance with my recommendation in regard to the extension of offers of referral and
hire to the complainant-without prejudice to his seniority, preferential employment
status , and the other rights and privileges which he would 'have been able to acquire and
enjoy, absent discrimination , under the terms of earlier trade agreements-will require
the Respondent Employers , jointly and severally , to recognize his right to enjoy "first
preference" as -an applicant for work with some ASI member firm. His right to enjoy
the indicated preference should, of course, be recognized with respect to any employment
he has demonstrated his competence to perform on the basis of his total employment
history, both within the salmon canning industry and In other pursuits.
1584 DECIafON84 OF. NATIONAL LABOR RELATIONS BOARD
members,--and the execution -of dues : checkoff authorizations by all job applicants,
in the midst of the employment dispatch operation , at the hiring hall supervised,
by the respondent association , did not interfere with, restrain , or coerce employees
or prospective employees of Alaskan salmon canneries in the exercise of rights
statutorily guaranteed; within the meaning of Section 8(a)(1) of the Act, as
amended; nor did it constitute a contribution of support to the Union or an en-
couragement of union membership by discrimination in regard to hire or employ-
ment tenure , within the meaning of Section 8(a)(2) and (3) of the Act, as
amended.
[Recommendations omitted from publication.]
Meyer Fabes, Sam Fabes, Norman Fabes , Sherman Fabes,
Eugene Fabes , Edward J. Prussack, Sole Sipsh , d/b/a Gate-
way Luggage Mfg. Co . and Lodge 790, International Associa
tion of Machinists, AFL-CIO. Case No. 16-CA-1055. Feiru
ary 2.5, 1959
DECISION AND ORDER
On October 22, 1958, Trial Examiner C. W. Whittemore issued.
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices, and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached thereto. Thereafter,
the Respondents filed exceptions and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in. this case, including the Intermediate Report, the excep-
tions, and the brief, and adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent that they are
consistent herewith?
On- Marth 1, 1957, the Union was certified as bargaining repre-
sentative of the Respondents' production and maintenance employees.
On March 12 the Union presented a written contract proposal to
the Respondents and requested the Respondents to supply the Union
with the name of each employee, his classification, and rate of pay,
The Respondents refused to give the information on the individual
basis requested, but orally gave the Union the names of the classifica-
I to the provisions of Section 8(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Leedom and Members Bean and Fanning].
9 The Respondents contend ,that the. Trial Examiner 's credibility findings are erroneous.
Bdwever, as the 7 clear preponderance of all the relevant evidence does not demonstrate
the Trial Examiner 's credibility findings to be incorrect , we adopt them , Standard Dry
Wall Products, Inc., 91 NLRB 544, enfd . 188 F. 2d 862 (C.A. 3).
122 NLRB No. 185.