American President Lines, Ltd.

National Labor Relations Board - Board Decisions

Dec 29, 1952

101 N.L.R.B. 1417 (N.L.R.B. 1952)

AMERICAN PRESIDENT LINES, LTD . 1417
AMERICAN PRESIDENT LINES, LTD. and JOHN CHUNG
NATIONAL UNION OF MARINE COOKS AND STEWARDS and JOHN CHUNG
AMERICAN PRESIDENT LINES, LTD. and JAMES RANDALL
NATIONAL UNION OF MARINE COOKS AND STEWARDS and JAMES
RANDALL. Cases Nos. 20-CA- &3, fO-CB-171, 0O-CA-567, and
2O-CB-184. December 29,195$
Decision and Order
On March 27, 1952, Trial Examiner Wallace E. Royster 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. The Trial Examiner also
found that the Respondent Union had not engaged in another unfair
labor practice alleged in the complaint, and dismissed such allegation.,
Thereafter, the Respondent Union filed exceptions to the Intermedi-
ate Report. The Respondent Employer filed no exceptions.
The Board 2 has reviewed the rulings made at the hearing, and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
Respondent Union's exceptions, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, except as modified below 3
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
1. The Respondent American President Lines, Ltd., San Francisco,
California, its officers, agents, successors, and assigns, shall:
A. Cease and desist from :
1. Encouraging membership in National Union of Marine Cooks
and Stewards, or in any other labor organization of its employees,
1 The Trial Examiner who presided at the bearing , upon motion , dismissed certain
other unfair labor practice allegations against the Respondent Union.
s Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Chairman Herzog and
Members Houston and Murdock].
R In finding that APL violated the Act by refusing to return Randall to his job and by
discharging Chung, we rely on the fact that APL had reasonable grounds for believing that
the Union was discriminating against them for lack of membership in good standing. We
find it unnecessary to consider the Trial Examiner 's dictum that , absent this fact, APL
would still be guilty of unfair labor practices.
101 NLRB No. 229.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by refusing to return any employee to his job because he has been
denied clearance by such labor organization for reasons of nonmem-
bership or bad standing, or by discharging any employee because
of the demand of such labor organization, or by discriminating in
any other manner in regard to hire or tenure of employment or any
term or condition of employment.
2. In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed in Section
7 of the Act, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment, as authorized by Section 8 (a) (3) of the Act.
B. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
1. Offer to James Randall and John Chung immediate and full
reinstatement each to his former or a substantially equivalent position,
without prejudice to his seniority or other rights and privileges.
2. Upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary for the determination of the
amount of back pay due and the right of reinstatement under the
terms of this Order.
3. Post at its office in San Francisco, California, and aboard the
S. S. President Wilson and the S. S. President Cleveland, where notices
to employees in the stewards department customarily are posted,
copies of the notice attached to the Intermediate Report as Appendix
A.4 Copies of said notice, to be furnished by the Regional Director
for the Twentieth Region, shall, after being duly signed by APL,
be posted by it immediately upon receipt thereof and maintained by
it for a period of at least sixty (60) consecutive days thereafter.
Reasonable steps shall be taken by APL to insure that such notices
are not altered, defaced, or covered by any other material.
4. Notify the Regional Director for the Twentieth Region in writing
within ten (10) days from the date of this Order what steps it has
taken to comply herewith.
II. The Respondent National Union of Marine Cooks and Stewards,
its officers, agents, representatives, successors, and assigns, shall:
A. Cease and desist from :
1. Causing or attempting to cause American President Lines, Ltd.,
or any other employers who utilize the Union's San Francisco, Cali-
This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner ," In the caption thereof, the words "A Decision and Order." 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."
AMERICAN PRESIDENT LINES , LTD. 1419
fdrnia, hiring hall, to discriminate in regard to the hire and tenure of
employment, or any term or condition of employment, of any employee
or applicant for employment, in violation of Section 8 (a) (3) of the
Act.
2. Accomplishing discrimination against James Randall by with-
holding dispatch privileges from him because of any consideration of
union membership or bad-standing, or against John Chung, or any
other employee, or applicant for employment because of such
considerations.
3. In any other manner restraining or coercing employees or appli-
cants for employment of American President Lines, Ltd., or of any
employers who utilize the Union's San Francisco hiring hall, in the
exercise of rights guaranteed employees by Section 7 of the Act,
except to the extent that such rights may be affected by an agreement
as authorized by Section 8 (a) (3) of the Act.
B. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
1. Notify James Randall, John Chung, and American President
Lines, Ltd., in writing that it has no objection to the return of Randall
to the S. S. President Cleveland as waiter, or of Chung to the S. S.
President Wilson as yeoman.
2. Direct, to the extent that it has control, that James Randall and
John Chung be restored to all seniority rights aboard the S. S. Presi-
dent Cleveland and S. S. President Wilson, respectively, as if they had
worked continuously since the dates of discrimination against them.
3. Upon reasonable request make available to the National Labor
Relations Board or its agents for examination and copying, all regis-
tration and shipping records necessary or convenient for the com-
putation of the amount of back pay due under the terms of this Order.
4. Post in conspicuous places in its hiring hall in San Francisco,
California, and wherever notices to members and others customarily
are posted, copies of the notice attached to the Intermediate Report as
Appendix B.5 Copies of such notice, to be furnished by the Regional
Director for the Twentieth Region, shall, after being duly signed by
the Union, be posted by it immediately upon receipt thereof and
maintained by it for sixty (60) consecutive days thereafter. Reason-
able steps shall be taken by the Union to insure that such notices are
not altered, defaced, or covered by any other material.
5. Mail to the Regional Director for the Twentieth Region signed
copies of the notice for posting, American President Lines, Ltd.,
willing, in the office and aboard the vessels of American President
Lines, Ltd., in places where notices to employees in the stewards de-
See footnote 4, supra.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partment are customarily posted. Copies of such notice, to be fur-
nished by the Regional Director for the Twentieth Region, shall, after
being duly signed as provided in paragraph numbered II B 4, above,
be forthwith returned to the Regional Director for said posting.
6. Notify the Regional Director for the Twentieth Region in writ-
ing within ten (10) days from the date of this Order what steps it has
taken to comply herewith.
III. American President Lines, Ltd., San Francisco, California,
its officers, agents, successors , and assigns, and National Union of
Marine Cooks and Stewards, its officers, agents, representatives, suc-
cessors, and assigns , shall jointly and severally make whole James
Randall and John Chung in the manner set forth in the section of the
Intermediate Report entitled "The Remedy" for any loss of pay
suffered as a result of the discrimination against them.6
6 The Respondent Union shall not be liable for any accrual of back pay to Chung and
Randall after 5 days from the giving of the notices referred to in paragraph numbered
II B 1 . However , in the case of Chung, If the S. S. President Wilson is not in San Fran-
cisco when the notice is given , liability of the Respondent Union shall terminate 5 days
after the vessel 's arrival in that port . Similarly, in the case of Randall , if the S. S.
President Cleveland is not in San Francisco when the notice is given , the Respondent
Union 's liability shall terminate 5 days after the vessel 's arrival in that port . See Mundet
Cork Corporation, 96 NLRB 1142.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon separate charges duly filed by John Chung , an individual , the General
Counsel of the National Labor Relations Board, herein called respectively the
General Counsel and the Board , by the Regional Director for the Twentieth
Region ( San Francisco , California ), ordered the cases consolidated for hearing
and issued a complaint dated February 19, 1951, against American President
Lines, Ltd., herein called APL , and National Union of Marine Cooks and
Stewards , herein called the Union . Thereafter on March 13 , 1951 , additional
charges against APL and the Union were duly filed by James Randall , an indi-
vidual . On March 22 , 1951 , the Regional Director issued an amended consoli-
dated complaint upon the charges of both Chung and Randall against APL and
the Union alleging violations of the National Labor Relations Act, as amended
61 Stat . 136, within the meaning of Section 8 (a) (1) and (3), Section 8 (b)
( 1) (A) and (2), and Section2 ( 6) and ( 7) of the Act.
With respect to unfair labor practices, the amended consolidated complaint,
as further amended at the hearing , alleged in substance that on or about
September 15 and November 3, 1950, and on or about November 25, 1950, the
Union caused APL to discharge and to refuse to employ Randall and Chung,
respectively , because they and each of them opposed the policies followed by the
officers of the Union and because they and each of them engaged in concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion ; that on or about September 15 and November 3, 1950, and on or about
November 25, 1950, APL refused to employ and discharged James Randall and
John Chung , respectively , at the request of and upon the demand of the Union,
although such requests and the demands were not justified or valid by reason
AMERICAN PRESIDENT LINES, LTD. 1421
-of the terms of any collective-bargaining agreement then in effect between APL
and the Union ; that from on or about August 15, 1950, to the date of the issu-
ance of the amended consolidated complaint, the Union (1) threatened Chung
with physical violence, (2) physically assaulted John Chung, (3) threatened
Chung with termination of his employment, (4) threatened Chung that he
'would be prevented from securing or retaining employment in the maritime
Industry, and (5) threatened other employees with termination and deprivation
of employment if they sailed with Chung.
The answer of APL filed April 3, 1951, denies the commission of unfair labor
practices and asserts affirmatively that Chung voluntarily quit his job thereby
terminating his employment with APL ; that APL offered to continue Chung in
its employment ; that neither Randall nor Chung at any time after September
1950 and November 1950, respectively, requested employment in any vacancy
aboard any of APL ships, and that each of them has been employed on each
occasion either of them requested employment ; that all employees in the classi-
fications held by Randall and Chung were secured through the Union in accord-
ance with the provisions of a valid collective bargaining contract; and that
neither Chung nor Randall have availed themselves of the remedies set forth
in the agreement between APL and the Union.
The Union's answer dated March 27, 1951, denied the commission of unfair
labor practices.
Pursuant to notice, a bearing was held before Maurice M. Miller, a Trial
Examiner duly designated, in San Francisco, California, on various dates from
April 9 to September 25, 1951. All parties were represented by counsel; par-
ticipated in the hearing, and were afforded full opportunity to examine and
cross-examine witnesses,' and to introduce evidence pertinent to the issues. At
the conclusion of the case presented by the General Counsel, Trial Examiner
Miller, upon motion, dismissed those subsections of the complaint numbered
41), (3), (4), and (5), above, and denied motions to dismiss the remaining
allegations. At the conclusion of the hearing, the Union and APL moved to
dismiss the complaint in its entirety. Trial Examiner Miller reserved ruling.
The motion is hereby denied. Pursuant to stipulation, the testimony of James R.
Hermann, an employee of the Union, was taken at New Orleans, Louisiana, on
October 5, 1951. The stipulation, by ruling of Trial Examiner Miller, was
made a part of the record. Counsel for all parties argued orally on the record
and a brief has been received from counsel for the Union.
The services of Trial Examiner Miller having become unavailable to the Board,
the undersigned Trial Examiner has been designated to submit an Intermediate
Report and Recommended Order on the record.
3 By letter dated May 16, 1951 , Chung advised Attorney Darwin that he desired no longer
to participate in the case and advised Darwin that his services as attorney were terminated.
Counsel for APL and the Union urged the Trial Examiner to grant what was in effect a
motion by Chung to dismiss the case based upon his charge . The motion was denied.
Darwin continued to participate in the hearing as representative of both Chung and
Randall.
a George T. Paine, a vice president of APL, was called by the General Counsel as an
adverse witness . At the conclusion of his examination -in-chief, Trial Examiner Miller
ruled on April 10, 1951, that counsel for APL would not be permitted to cross-examine
Paine. In consequence of this ruling, I have made no findings based upon Paine's testimony
when called as an adverse witness by the General Counsel . I have, however, given con-
sideration to his testimony upon the examination of counsel for APL following the exam-
ination-in-chief by the General Counsel and also to his further testimony when called later
in the hearing as a witness for APL.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the entire record , I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF APL
APL is a Delaware corporation with an office in San Francisco, California..
and is engaged in the business of transporting passengers and freight on vessels
from ports located in California to ports in other States and foreign countries.
APL purchases supplies, equipment, and materials to a value in excess of $1,000,-
000, annually, more than 50 percent of which is secured from sources outside
the State of California. APL's annual revenue derived from transportation of
cargo and passengers from California ports to ports located in other States an(t
foreign countries exceeds $1,000,000.
II. THE UNION
National Union of Marine Cooks and Stewards is a labor organization admitting
to membership employees of APL.
III. THE UNFAIR LABOR PRACTICES
A. Background
Pacific Maritime Association (then called Pacific American Shipowners Asso-
ciation), herein called PMA, on behalf of its members, among them APL, on^
December 2, 1948, entered into a collective-bargaining agreement with the Union,
covering employment in the stewards department of vessels owned or operated by
members of PMA. Section 4 of the contract provided for preference in hiring
for members of the Union and that employees in the stewards department he
secured exclusively through the offices of the Union. This section was, of course,
clearly unlawful and on August 18, 1950, the general agreement was supplemented
by striking section 4 and substituting the following :
The Employers and the Union recognize the desirability of providing
continued employment in the maritime industry, and the necessity of having
available at all times a supply of competent employees with experience
in the various types of vessels operated by the companies.
To provide such continued employment, and to assure operation of the-
vacation benefits specified in the agreement, the Employers agree to give
preference of employment to employees who have seniority by reason of
having been previously employed by the companies signatory to this agree-
ment since December 2, 1946, in classifications covered- by this agreement,
and men who presently are employed on vessels operated by Employers
signatory to this agreement.
The Employers recognize that it has been the practice for such men to
offer themselves for employment through the Union's offices, and conse-
quently, for the purpose of assuring maximum harmonious relations and
in order to obtain the best qualified employees covered by this agreement,
the Employers agree to secure all unlicensed personnel within the classifica-
tions covered by this agreement from and through the offices of the Union.
The Union agrees that, as it is called upon to fill vacancies as they may
arise, it will furnish capable, competent and satisfactory employees and
will observe the preference specified herein.
In the event that employees with seniority, as herein defined, are not
available to fill vacancies, then the Union will undertake to supply the
AMERICAN PRESIDENT LINES , • LTD. 1423
Employers with capable, competent and satisfactory employees. Neither
as to such undertaking, nor as to any other portion of this agreement, shall
any employee be discriminated against by reason of either membership in
or non-membership in the Union. The Union will maintain appropriate
registration facilities for applicants for employment to make themselves
available for job opportunities, and will conduct such registration facilities
without discrimination either in favor of or against prospective employees
by reason of membership in or non-membership in the Union. It is agreed
that membership in the Union shall not be a condition of employment of any
member of the unlicensed personnel furnished or obtained in the manners
specified in this agreement.
Section 9 B of the 1948 agreement was amended to read :
Any employee who has had more than 12 months' employment at sea since
December 2, 1946, in classifications covered by this agreement may remain
in continued employment on the vessel provided the Employer and the em-
ployee desire such employment to continue.
Any employee who has had less than twelve (12) months employment at
sea since December 2, 1946, in classifications covered by this agreement may
be replaced by an employee with greater seniority in the companies signa-
tory in this contract when available for such employment.
The Board has found that such provisions do not run afoul of the Act 8
The general practice at least since August 18, 1950, has been for the Union
to register for employment those who appear at the hiring hall for such purpose,
at least those who are able to demonstrate that they have some competency in
the classification in which they seek employment. Once registered, an indi-
vidual's opportunity for employment is determined by rotation ; when his regis-
tration date is earlier than that of anyone else seeking the same job and if he
is apparently qualified for the assignment , he is given a referral slip which, in
the case of APL, is submitted to the APL shipping master. The shipping mas-
ter, when satisfied with the qualifications of the man referred to him, gives him
an assignment to the vessel which is being manned . Once employed an indi-
vidual may retain such employment until such time as he decides to quit or the
employer decides to terminate him.
Sometime during the summer of 1950 the United States Coast Guard insti-
tuted a practice called "screening" by which individuals suspected or believed
to have propensities which might make it inadvisable from the standpoint of
national security to permit them to sail are prevented from doing so by the
Coast Guard. The screening generally takes place at the time when the seamen
are about to sign articles for the voyage. Anyone "screened off," as the ex-
pression is, may not sail aboard the vessel although for a time at least such an
Individual might sail on a coastwise voyage. The Union protested this prac-
tice and at a meeting held August 10, 1950, adopted a resolution to the effect
that any one not permitted to sign articles because of the screening program
after assignment to the vessel would retain his position on the shipping register
and be given top priority for any job referral not subject to screening. The
Union's port agent, Nathan Jacobson, testified that one working regularly aboard
a vessel who is "screened off," would be in the same situation as one volun-
tarily staying ashore for one trip ; a relief man would be supplied by the Union
to replace him and the individual missing the trip because of screening would be .
permitted to "reship" when the vessel began its next voyage.
National Union of Marine Cooks and Stewards, 90 NLRB 1099.
1424 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
B. The discrimination against James Randall
In January 1949, Randall became a waiter aboard the President Cleveland, as
vessel operated by APL, and remained employed in that classification until
August 8, 1950. On that date he was prevented from signing articles for the
impending voyage upon advice from the United States Coast Guard that it con-
sidered Randall to be a poor security risk. The following day, according to
Randall, he went to the union hiring hall and mentioned to Patrolman Nehre-
becki that he had been "screened off" the Cleveland. Nehrebecki answered, ac-
cording to Randall, "I know, I have already shipped a replacement down in your
place." Randall testified further that he registered on that date to reship aboard
the Cleveland. The Union's records do not evidence such registration. Patrol-
man Nehrebecki testified that he had no conversation with Randall at the union
hall on August 9. The following day, August 10, the Union adopted its policy in
connection with those in Randall's situation. On August 15, the Coast Guard,
cleared Randall , and so advised APL. On August 28, charges against Randall
were preferred by Hugh Bryson, the Union's president. On September 14, the
Union's trial committee found that Randall had been active in support of an
organization which it characterized as "dual" and recommended that any person
holding membership in such organization be not permitted to obtain or retain
membership In the Union 4 The Union's membership voted to accept the recom-
mendations of the trial committee. Randall was suspended from membership
for 12 months and fined $250.
On August 9, the Cleveland sailed and returned to San Francisco September 17.
On the day following Randall went to the union ball for the purpose, he testified,
of obtaining a referral slip to the Cleveland so that he might again return to his
job as a waiter. Four men whom he did not know met him at the door and told
him he could not enter. Randall protested that he wanted to get his referral
to the Cleveland, but was told to get out, that he was no longer a member of the
Union . Randall left and went to the office of Silvian B . Souza, shipping master
for the APL. Randall told Souza that he had come for his job. Souza asked
if he had a referral from the Union and Randall replied that he had not, explain-
ing that the Union had suspended him. Souza commented that he was sorry
but without a referral, he could not send him aboard the vessel.
The Cleveland sailed again without Randall. On September 25, Randall re-
turned to the union hall and, meeting with no difficulty in gaining entrance,
registered for shipping on that date. On September 26, Randall learned that an
attorney for the Union had sent a message to him to the effect that Randall could
sail that day aboard the President Polk, another APL vessel. The message did
4 The record contains a mass of evidence tending to establish that both Randall and
Chung after some date in August 1950 were engaged with others in a movement having
for its purposes the displacement of many of the Union's officers and the reversal of union
policy in certain respects. There is also evidence that this activity at some point found a
sponsor in the National Maritime rnion and that thereafter the National Maritime Union
sought to displace the Union as bargaining representative of employees sailing in steward
department ratings. Much argument was spread upon the record and in the Union's brief
concerning whether such activity found protection in the Act. I do not believe that the
evidence is material. Randall had a right to work aboard the Cleveland and Chung aboard`
the Wilson without Interference from the Union on account of any activity engaged in by
them. The issues are: Did the Union prevent them from working? not why it did so, and
did APL permit the Union to decide who should be employed and who not? American Pipe-
and Steel Corporation, 93 NLRB 54, 56.
Once these questions had been the subject of evidence, the Union and APL might then
have proceeded to show that either Randall or Chung lacked competency, or otherwise was
unsuited for employment, or, perhaps, did not qualify for employment within the terms.
of the contract. The evidence referred to has no relevance to such contentions,
AMERICAN- PRESIDENT LINES, LTD. 1425
not reach Randall until 2 hours after the Polk had sailed . On the morning of
September 27, Randall was told that if he would present himself at the union
hall before 11 o'clock that morning, he might have opportunity to sail as a waiter
aboard the General Gordon , another APL vessel . Randall did not go to the hall
and explained that had he taken such an assignment he would have lost his sen-
iority on the Cleveland . On November 3, the Cleveland having returned to port,
Randall , he testified , again went to the union hall and again was stopped at the
door by four men who blocked his entry . One of them , he learned , was a union
member named Caruso . Leaving the hall, Randall went again to Souza's office
and again told Souza that he wanted to return to his job on the Clevelanid.
Souza answered that unfortunately he could not give him that job without a
referral from the Union.
James Hermann, an employee of the Union, testified that on the morning of
November 3 he saw Randall in the vicinity of the union hall and that he,
Hermann, engaged in a dispute with one Katz in Randall's presence concerning
the admission of Randall to the hall. According to Hermann, he told Katz
that no one was interfering with Randall's entry. Hermann's testimony is to
the effect that Randall may have approached the vicinity of the door leading
to the hall but did not present himself there and after overhearing the dispute
between Hermann and Katz, left.
APL contends that Randall left its employment when he was screened off the
Cleveland August 8, and that thereafter he had no employment relation to it.
When Randall requested employment of Souza on September 18 and again on
November 3, APL asserts, the collective-bargaining agreement between APL and
the Union prevented his employment as by that instrument APL was bound to
afford employment only to those who appeared with a referral from the Union
and for whom a vacancy existed. Further, according to APL, Randall did not
avail himself of remedies open to him under the collective-bargaining agreement,
namely, the provisions for the processing of grievances to arbitration.
C. The discrimination against John Chung
Chung, as has been stated, attempted to have this proceeding as it affected
him terminated , and did not appear as a witness. Employment records of APL
show that from April 13, 1948, until November 25, 1950, Chung was regularly
employed aboard the President Wilson, an APL vessel, as yeoman, except for
certain periods when he was on strike or taking a trip off.
Vance A. Boyer, an assistant shipping master for APL, testified that about
October 10, 1950, when the Wilson was in port, a man named Ellis Lumpkin
appeared at Souza's office to ship as yeoman aboard the Wilson. Souza told
Lumpkin that no request had been made for a yeoman. A day or two later,
according to Boyer, Union Patrolman Nehrebecki came to Souza's office and
asked that Chung be relieved as yeoman because he had not shown up for work
that morning. Robert H. Turner, a labor relations representative of APL, told
Nehrebecki that Chung could not be discharged without an investigation to
determine the facts; that Chung might have been excused from working that
day. Nehrebecki answered, according to Boyer, that the matter would be taken
up again on the next voyage; that Chung would then be required to take a
trip off.5
5In apparent reference to a then effective union requirement that stewards department
workers remain ashore for one trip in four to spread the work available among a greater
number.
1426 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
Timothy Mullen, APL's chief port steward, testified that sometime between
October 8 and 12, 1950, a conference concerning John Chung was held with
Mullen and Captain Espey representing APL and Jacobson, Tangen, and Nehre-
becki representing the Union. Mullen testified that he could not recall what the
union representatives said about Chung but remembered that he and Espey said
that Chung's employment would continue as far as APL was concerned. During
this same period, Patrolman Thibodeaux said, according to Mullen, that the stew-
ard's crew would not sail the Wilson with Chung aboard.
Ture Dahlstrom, chief steward in charge of all steward personnel aboard the
Wilson, testified that Chung was aboard the Wilson from the time that vessel
was recommissioned in 1947 until November 25, 1950. According to Dahlstrom,
Chung was an excellent yeoman ; that there was no complaint about his work.
About October 12, 1950, according to Dahlstrom, Patrolman Thibodeaux came
to the former's office and in the presence of Chief Port Steward Mullen said
that Chung was not to sign on; that if he did so the vessel would not sail.
Mullen answered, according to Dahlstrom, that APL had no interest in the dis-
pute between the Union and Chung, that Chung's work was satisfactory, and that
there was no way for APL to discharge him without violating the law. During
the course of the voyage which began in San Francisco about October 12, 1950,
Dahlstrom asked Chung if the latter was going to take a trip off when the vessel
returned to San Francisco. Chung said that he would make that decision when
the voyage was over. A few days out of San Francisco on the return leg,
Dahlstrom again questioned Chung in that connection and understood ('hung
to answer, he testified, that he either would be taken off the vessel by the Union
or would take his "swing trip"' off. According to Dahlstrom, Chung at no time
said that he was quitting. Dahlstrom assumed from his conversation that Chung
would not make the next voyage. As soon as the vessel arrived in port on
November 21, Patrolman Nehrebecki showed a list of replacements for ratings
in the stewards department to Dahlstrom and asked the latter to sign them.
According to Dahlstrom, it was unusual for the patrolman to make up such
a replacement list and Dahlstrom asked Nehrebecki why he had done so. Nehre-
becki answered that the Union was interested in getting the crew on board and
getting them signed on expeditiously and that he personally would take the list
to Shipping Master Souza's office. On the second page of the list Dahlstrom
noticed that the job of yeoman, which Chung held, was listed as a permanent
replacement ° and asked Nehrebecki why this was so. Nehrebecki answered,
"We will take care of that." Dahlstrom signed the list and Nehrebecki left with
it. A few minutes later Chung came to Dahlstrom's office, said that he had
consulted his lawyer, and that he intended remaining aboard the vessel. Dahl-
strom told him that a list showing his job as a replacement had already been
sent to the shipping master's office and that Chung had better go there to take
care of it. Chung left immediately. A short time later Souza telephoned
Dahlstrom saying that Chung was in his office, had changed his mind, and asked
Dahlstrom to give Souza an affidavit to the effect that Chung desired to remain
aboard the Wilson.
Dahlstrom then wrote Souza :
Please be advised that John Chung wish to cancel his resignation from
this vessel. As I was just informed of this, so would you therefore cancel
my request for a yeoman immediately.
° The practice of one trip off in four was so known.
Instead of listing a relief man for one trip.
AMERICAN PRESIDENT LINES , LTD . 1427
During the morning of November 21, Chung delivered the letter to Souza, who,
upon its receipt, immediately called the union hall and told whoever answered
that if any request to dispatch a yeoman to the President Wilson had been made,
he desired that it be canceled. Nehrebecki, in the interim , had phoned the
union hall , ordering a replacement for Chung.
On the afternoon of the 21st, representatives of APL, including Dahlstrom,
Vice-President Paine, Souza , and Mullen, met with officials of the Union, among
them Port Agent Jacobson and Secretary Tangen . Although the meeting, in part,
concerned complaints of the Union as to ventilation and other conditions aboard
the Wilson, Chung was discussed. The union representatives, according to Dahl-
strom, asked APL to discharge him. Someone, speaking for APL, said that there
was no reason to do so. Paine said that not alone was there no reason to
discharge Chung, but on the contrary reports indicated him to be a very satis-
factory worker. Paine then asked Dahlstrom if he was satisfied with Chung
as a yeoman. Dahlstrom replied that he was. Another meeting was held on
the following day, during the course of which Paine again asked Dahlstrom as
to his opinion of Chung as a yeoman and Dahlstrom again replied that Chung
was satisfactory.
Joseph D. Cox, master of the Wilson, testified that on November 24, he
attended a meeting aboard the Wilson with Vice-President Paine, Port Captain
Murphy, and Mullen. Tangen and Jacobson were present in behalf of the Union.
The meeting, according to Captain Cox, concerned the refusal of the Union to
permit stewards to sign articles and in this context Paine said that APL had no
reason to discharge Chung. Tangen retorted that the Union would not go along
with that. On November 25, the members, or some of them, in the stewards
department further delayed in signing articles. On this date Chung was offered
a job as food controller, a classification outside the coverage of the Union's
contract but a job which was similar in pay and duties to that of yeoman. Mullen
told Chung in the presence of Cox, the latter testified, that the offer of the job
as food controller was about the only thing APL could do as it was "on the spot."
It was a question of Chung taking such an assignment or having the ship tied up.
Chung answered that he would not accept the offer. Mullen answered, "Well,
that's the only thing we could offer you and I'm afraid you'll have to get off."
Chung asked if he were fired and Mullen said that that was the position the APL
was forced to take in order to sail the ship. Before the entire stewards depart-
ment had signed articles, the Wilson left the pier and anchored in the bay.
There was still further delay in signing and Captain Cox, he testified, asked
Patrolman Thibodeaux for the reason. Thibodeaux asked where Chung was,
and Mullen, who also was aboard, answered that he was ashore. In the mean-
time the Union had sent Oren Jenkins to the vessel to ship as a yeoman . Jenkins
was screened off by the Coast Guard and thus could not sign on for a voyage
outside coastal waters. Thibodeaux, according to Cog, finally agreed that if
the Company would employ Jenkins as yeoman for the voyage to Los Angeles
he might be replaced upon arrival there. The agreement was made and the
stewards department then completed signing articles . Captain Cox testified
that he had never heard a complaint about Chung's work and from his observation
it was very satisfactory.
Timothy Mullen testified that on November 21 Dahlstrom told him that Chung
had resigned, and that on the same date Dahlstrom told Paine that Chung had
expressed an intention to resign about 2 days before the vessel arrived in San
Francisco. Mullen testified further that on November 25, he told Chung that
APL wanted Chung to take a job as food controller. At first Chung said that
he would like to do so, but did not finally accept. Later in the day Chung said
242305---53-91
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he would decline the offer on the advice of his attorney and remarked that
he would have to get off the ship. Mullen agreed that he must do so.
Vice-President Paine, called as a witness by the APL, testified that on the
afternoon of November 21, Dahlstrom at first told him in positive terms that
Chung had resigned, but later modified his statement somewhat. On November
24, Paine called Secretary Tangen of the Union and told Tangen that the Wilson
would sail on the 25th and that Chung would sail with it. According to Paine
he consulted counsel about the situation of Chung and was advised on the
morning of November 25 that it appeared that Chung had resigned at some point.
Paine conceded that on several occasions between November 21 and 25 he had
told Tangen that Chung would sail, that it was not considered by APL that he
had resigned. In these same telephone conversations Paine expressed concern
to Tangen over the delay of the stewards department in signing articles. Tangen
claimed that Chung was not entitled to sail.
James Drury, a representative of the Congress of Industrial Organizations,
testified credibly and without contradiction that on November 24, he received a
telephone call from Paine in which Paine said that Harry Bridges, president of
the International Longshoremen and Warehousemen's Union, and Hugh Bryson,
president of the Union, had threatened the APL with a complete tieup along the
Pacific Coast in the event that Chung signed on the Wilson for the forthcoming
voyage. In the conversation Paine went on to say that on that day, November 24,
members of the stewards department on the Wilson had refused to sign on and
asked Drury to use his influence with Chung to persuade him not to sign on as
yeoman. At 8 a in, November 25, Paine called again. Drury told him that a
decision had been reached not to attempt to influence Chung to surrender his
job rights aboard the Wilson. Paine then asked if Drury would consider urging
Chung to accept the job as food controller. Drury refused to do so.
Eddie Tangen, secretary-treasurer of the Union, testified that the delay in the
sailing of the Wilson on November 25 was occasioned by the Union's complaint
as to ventilating conditions in the laundry room and that during the time the
vessel was in port from November 21 to 25, the Union took up a number of
disputes with the Company in respect to working conditions aboard the vessel,
overtime disputes, and concerning some members of the galley crew. The repairs
which APL offered to make were insufficient, in the opinion of Tangen, and for
that reason the stewards crew did not sign on during the first 2 or 3 days that
the vessel remained in port. Concerning Chung, Tangen testified, he told Paine
that the facts were clear. Chung had resigned and the replacement must be
accepted. On November 25, according to Tangen, Paine telephoned saying that
he had concluded that Chung had resigned, but that he wanted to permit him
to sail as food controller. Tangen told him there would be no objection to such
an arrangement on the part of the Union. Finally, at the last moment on
November 25, Tangen agreed, he testified, to recommend that the stewards crew
sign articles on Paine's assurance that changes in the ventilating system in the
laundry room, if not already sufficient, would be subject to further correction
when the vessel returned from its voyage.
Patrolman Harry Nehrebecki testified that when he boarded the Wilson on
November 21, he received a list of replacements, took it to Chief Steward Dahl-
strom for initialing, and then to the office of Shipping Master Souza from where
he telephoned the list to the union hall. Nehrebecki denied that he discussed
Chung with Dahlstrom and testified that he could recall no conversation that
morning with Turner in relation to Chung. Souza, according to Nehrebecki,
asked him to telephone the replacement requirements to the union hall. On
November 25, according to Nehrebecki, he asked Chung to surrender his union
AMERICAN PRESIDENT LINES, LTD. 1429
book and Chung did so. Nehrebeeki told Chung that he was on charges with the
Union and that he was requested to answer them. This ended the conversation.
Later in the day, Chung accused Nehrebecki of kicking him. This was brought to
the attention of Captain Cox, who told Nehrebeeki that if he did anything like
that aboard the ship he would be removed. Nehrebecki told Cox that Chung
was a liar. Nehrebeeki testified that it was the practice of the Union to pick
up the book of a member who was on charges and to return it when charges are
disposed of.
Nathan Jacobson, port agent for the Union in San Francisco and in charge of
the dispatcher and the patrolman in the operation of the San Francisco branch
office, testified that charges against Chung were first brought to his attention
by crew, members of the Wilson. Jacobson then told one of the patrolmen to
notify Chung that the charges had been filed. About 6 p. m., on the evening
of October 10, Chung came to the union hall to discuss the charges. Chung said
that he was considering leaving the Wilson so that the charges could be disposed
of, but the next (lay said that he had changed his mind. According to Jacobson,
Chung's case was not discussed at any meeting with company officials during the
period from November 21 to 25 and the delay in signing articles for the voyage,
which began November 25, was to secure assurance that the ventilation system in
the laundry be corrected and disputed overtime claims settled.
Patrolman Thibodeaux testified that he had no recollection of telling any
representative of APL in October 1950 that Chung must be discharged and that
he also had no recollection of them telling any representative of APL that the
stewards crew would not sign on if Chung sailed.
D. Conclusions
The agreement of August 18, 1950, between APL and the Union gives the latter
complete control at the source of those who desire to ship for APL in steward
department ratings. Under the terms of this agreement, no one may obtain
employment with APL unless referred by the Union. Of course the Union under-
takes to conduct its registration facilities without discrimination, and it is this
undertaking which may make lawful an agreehient otherwise in violation of the
Act. The General Counsel expressly disclaimed any intent to attack the validity
of the hiring provision in the contract as amended August 18, 1950, and the
clause in question is substantially the same as one which earlier won the
Board's approval.' But an employer is under an affirmative duty, imposed by
Section 8 (a) (3) of the Act, not to discriminate in regard to hire or tenure
of employment or terms or conditions of employment to encourage or discourage
membership in a labor organization. An agreement to hire personnel only
through a labor organization is, upon its face, an unlawful preference.' Only by
the incorporation of a provision that those hired through the Union would be
afforded employment opportunity without regard to union membership is
the taint of illegality removed. No doubt an employer may establish any arrange-
ment convenient or desirable to him for obtaining employees, save that he may
not impose any test of union membership or nonmembership in that connection.
Thus, an employer may require that all applicants be screened by an employment
agency before any final decision as to hire. However, such an employer has
not discharged all the obligations imposed upon him by the Act if in fact the
employment agency applies a discriminatory test. If, for example, the employ-
ment agency was to decide that it would refer for employment only those who
s National Union of Marine Cooks and Stewards, supra.
Daniel Hamm Drayage Company , Inc., 84 NLRB 458, 459.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were not members of a labor organization, members of such organization would
effectively be denied employment opportunity and the employer would be placed
in the position, perhaps unwittingly, of offering employment only to those who
qualified as nonmembers. A delegation of authority to the employment agency
to make a selection does not absolve the employer of responsibility for the actions
of his agent. A strikingly similar situation exists in the relationship between
APL and the Union. It may be assumed that APL would not have become party
to the 1950 agreement without an undertaking on the part of the Union that no
discriminatory test would be applied to those who sought employment through
the Union's hall. However, if the discrimination occurred, APL, having made it
impossible for anyone to obtain employment in stewards department ratings
aboard its vessels except through the Union, cannot escape responsibility for it.
In some factual context, APL's assertion that Randall left its employment
when he was screened off the Cleveland might have validity, but not here,
Randall was willing to continue on as a waiter ; APL was willing that he do so.
There was no act of discharge by APL and no act of quitting by Randall. Another
force, beyond the control of either, took him off the vessel and from a job that he
had held for more than a year. A sudden illness or an accident to Randall
would have produced the same effect-inability to make the voyage. Randall
remained the employee of APL10 and was entitled, if APL was willing, to return
to work aboard the Cleveland when the disability was removed. For the
voyage beginning August 9, one Elmo blugnani shipped as a waiter. His assign-
ment slip from the Union bore a notation indicating that he was a relief man
and would sail only one trip. Randall testified that Mugnani signed the same
article number that Randall had signed in the past. When the Cleveland re-
turned to San Francisco, Mugnani left the vessel. Evidence could hardly be
clearor that Mugnani sailed in Randall's stead and that Randall might reclaim
his job when the Cleveland returned.
On August 10, the Union took action which effectively protected the shipping
rights of individuals such as Randall. As a result, Randall's standing to sail
aboard the Cleveland or any other vessel was unimpaired by the screening action.
Under the Union's shipping rules, one rejected for employment must report
immediately to the union hall and failure to do so means that he must reregister.
I credit Randall's testimony that he reported to Nehrebecki on that day. How-
ever, I am convinced that Randall did not then register to reship aboard the
Cleveland. His testimony that he believes that he did so is overcome by records
which indicate that he did not. In any event I find that the Union through
Nehrebecki and other responsible officials was aware that Randall had been
screened off the Cleveland. Indeed, this incident was discussed at the union
meeting on August 10.
On August 28, Randall was served with charges by the Union and on September
14, found guilty, suspended from membership for a year, and fined a sum of
money. I credit his testimony that he was denied admittance to the union hall
on September 18. Indeed there is no evidence to the contrary. Randall went to
the hall on that occasion, he testified credibly, to obtain an assignment slip to
the President Cleveland which either had arrived or was about to arrive in San
Francisco. Of course when he was unable to enter the hall his opportunity to
obtain such an assignment was denied.
It is argued that Randall's job rights aboard the Cleveland were forfeited
when he failed to register to reship aboard that vessel on August 9. Whatever
10 N L . R. R v. Waterman Steamship Corporation, 309 U. S 206.
AMERICAN PRESIDENT LINES, LTD. 1431
validity such an argument might have n does not come into true focus when it
is considered that he was denied opportunity to enter the ball for the purpose
of obtaining a referral on September 18. Now of course the Union may not
justify the exclusion of Randall from its hall and at the same time continue to
act as the sole source of employment for stewards department ratings aboard
APL's vessels. The Union had a right to bring Randall up on charges and to
take whatever action in respect to them that to it seemed best, but they could not
lawfully interfere with Randall's right to seek employment. By refusing him
admittance to the ball on September 18, the Union deprived him of opportunity
for employment. No other avenue was open to him. The direct approach to APL
quickley demonstrated its impracticality. Souza told him correctly, insofar
as the APL's contractual obligations were concerned, that he could not hire him
without referral from the Union. There is evidence that Randall might have
shipped aboard another vessel on September 27. This, however, does not cure
the earlier discrimination against him and is of concern only as a consideration
in determining any amount of back pay to which he may be entitled. The Union
must be held responsible for Randall's inability to enter its hall on September
18. Having testified credibly that he was refused entrance, the Union had the
burden of going forward to refute that evidence. The burden has not been car-
ried. Absent evidence to the contrary, I assume that the Union is in control of
its own hall and that strangers do not arrogate to themselves the right to deter-
mine who shall enter. Furthermore the Union has a positive duty so to arrange
matters that all those who seek entry on legitimate business in connection with
employment are not impeded.
It is the argument of APL implicit throughout the hearing that its hands
were tied, that it was party to a lawful agreement which required it to afford
employment only to those referred to it by the Union. On September 18, Randall
told Souza that he was in difficulty with the Union and for that reason could
not obtain referral. APL asks, in effect, what should we have done? We had
agreed that we would not hire anyone without such reference and Randall did
not have one. He was a competent employee, true, and we had no objection to
giving him employment. But under our contract we could not do so. The short
answer is that no private agreement may be used to frustrate the policies and
purposes of the Act. APL had entrusted to the Union the exercise of a selection
which an employer ordinarily keeps for himself. Assuming, as I think I must,
that there is nothing unlawful in such a delegation, it does not serve to absolve
APL of its duty to see that employees are referred to it on a nondiscriminatory
basis. APL was tinder notice that discrimination had been practiced in the
case of Randall. Wholly aside from the question of notice, having delegated
its authority in a matter of employee selection to the Union, APL necessarily
assumed responsibility for the actions of the union representatives in that re-
spect. So, when Randall presented himself at the door of the union hall, the
only place where he might, by virtue of the contract, attempt to obtain employ-
ment with APL, the latter must answer for his failure to obtain entrance and
to make application. Having made it impossible by means of contract for
Randall effectively to seek employment with it elsewhere, APL was under a
duty to see that the avenue of the applicant was not cluttered with hurdles of
a discriminatory nature.
I find that Randall was denied admission to the Union's hall on September
18 and November 3, 1950; that he was denied entrance because he had been
1' It is doubtful that Randall lawfully could be required to register. The contract gave
the Union the privilege of referring men to fill vacancies. Randall had not quit and he had
not been discharged.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suspended from membership by the Union ; that the denials of entrance precluded
him from consideration for employment by APL ; that the denials of entrance
precluded him from opportunity to obtain referral to the President Cleveland;
and that by such denials the Union caused APL to discriminate against Randall
in violation of Section 8 (a) (3) of the Act, and that the Union thereby violated
Section 8 ( b) (2) of the Act.
By entering into a contract with the Union requiring as a condition of em-
ployment an assignment slip from the Union , APL made it impossible for
Randall to obtain employment with it otherwise . The Union 's refusal to admit
Randall to its hall on September 18, because he was suspended as a member of
the Union , imposed a test of union membership , or loyalty , or adherence, or
favor as a condition to securing referral . The Union was acting in its own
interest but also as agent for APL in funneling prospective employees to APL,
thus the discriminatory practice of the Union in refusing Randall admittance
was, by virtue of the agency existing , the action of APL and one for which
APL is answerable . I find that by the Union 's refusal to admit Randall to its
hall on September 18 and November 3, both APL and the Union effectively denied
employment opportunity to him. I find therefore that by refusing to return
Randall to his job as a waiter aboard the Cleveland on or about September 18
and November 3, 1950, APL discriminated in regard to his hire or tenure of
employment thereby encouraging membership in the Union, and the APL thereby
violated Section 8 (a) (3) of the Act.
By refusing Randall, on September 18, 1950, opportunity to obtain referral
to the President Cleveland , the Union coerced and restrained Randall in the
exercise of rights guaranteed in Section 7 of the Act and thereby violated Sec-
tion 8 ( b) (1) (A) of the Act.
By refusing employment to Randall on or about September 18, and Novem-
ber 3, 1950 , because he did not possess referral from the Union , APL interfered
with, restrained , and coerced him in rights guaranteed by Section 7 of the Act
and thereby violated Section 8 ( a) (1) of the Act.
The case of John Chung is of the same pattern , but brings different factors
into focus . I credit the testimony of Timothy Mullen that Patrolman Thibodeaux
threatened sometime between the dates of October 8 and 12 that the stewards
crew would not sign on the Wilson unless Chung was taken off. Thibodeaux's
action was consistent with the Union 's shipping rules which provide in para-
graph 57 that no person on charges will be allowed to register or ship until
cleared by the membership meeting. Dahlstrom 's testimony that Chung told
him a few days before the Wilson arrived in San Francisco in late November
that he would take the next trip off for some reason is credited . I find that
when the Wilson arrived in port on November 21 Dahlstrom believed Chung
intended not to sail on the next voyage and that the job of yeoman was on the
replacement list which Dahlstrom signed on that date . Of course it is entirely
clear that Chung decided the morning of November 21 that he would remain
aboard the vessel and that Souza , being advised of this, notified the Union not
to send a replacement . Nonetheless a replacement was sent and the Union
insisted , through Tangen and others , that Chung had quit and that the replace-
ment must be accepted . This is eloquent evidence that the Union considered
the jobs aboard the Wilson to be its for disposition , disregarding the right of
Chung to decide whether he desired to continue working. Chung 's position was
not a highly important one. Dahlstrom was entirely satisfied with his work.
Captain Cox thought he was a very satisfactory yeoman. Some criticism had
been made that he was slow in figuring out overtime claims but this played no
part in his termination . So we have the situation of an employee deciding first
AMERICAN PRESIDENT LINES, LTD. 1433
to quit and then changing his mind with the approval of APL Representatives
Dahlstrom and Souza. One would expect this to be the end of the matter, but
the Union insisted that it had a right to dispatch another in Chung's place.
Of course no such right existed. The Union's right under the contract was to
supply employees for vacancies on a nondiscriminatory basis. When APL re-
quired no replacement, the Union had no right to insist that an employee be
discharged in order to create a vacancy. But that is what it did. Vice-President
Paine's concern in the matter is understandable. Of course in any ordinary
situation where a yeoman first quits and then changes his mind, a vice president
of APL would hardly hear of it. But a different situation was presented to
Paine, who was faced, he believed, with the possibility of an expensive delay in
sailing the vessel unless he came to terms with the Union. So he secured the
opinion of a lawyer that Chung had resigned and that the resignation created a
vacancy. Of course the fact is that whatever Chung's action in respect to
severing his employment relation with APL may have been, it was changed
before Paine entered the picture. His withdrawal of resignation, if it is proper
so to term it, had been accepted both by Dahlstrom and by Souza, responsible
representatives of APL within the area of their employment. The denial of
Tangen that economic pressure was brought to bear upon APL to discharge
Chung or to refuse to permit him to sail on the next voyage as a yeoman, is not
believed. Evidence to the contrary is overwhelming. But even if no economic
pressure was involved, it is unquestionably true even upon Tangen's own testi-
mony that the Union sought to replace Chung aboard the vessel and that it was
successful in doing so. When a union is successful in dictating to an employer
what individual may be kept on a job and what individual may not be, its
position is strengthened among the employees and they are afforded a forcible
demonstration that membership in as well as adherence to the rules of that
organization is extremely desirable.' The Union had no right to interfere
with the employment of Chung or the employment opportunity of Randall, except
perhaps, on the basis of competency, a consideration which played no part in its
actions in respect to either of them. I find that by causing the discharge of
Chung on November 25, 1950, the Union caused APL to discriminate against
Chung in violation of Section 8 (a) (3) of the Act and that the Union thereby
violated Section 8 (b) (2) of the Act.
I find that by discharging Chung on November 25, 1950, at the demand of the
Union, APL discriminated in regard to his hire and tenure of employment thus
encouraging membership in the Union and thereby violated Section 8 (a) (3)
of the Act.
By coercing and restraining Chung in the exercise of rights guaranteed in
Section 7 of the Act, the Union violated Section 8 (b) (1) (A) of the Act.
By discharging Chung at the insistence of the Union, APL interfered with,
restrained, and coerced him in the exercise of rights guaranteed by Section 7
of the Act, and thereby violated Section 8 (a) (1) of the Act.
That neither Randall nor Chung took avail of the grievance procedure out-
lined in the contract affords no defense to APL or the Union. The grievance
of each was already decided against them when the Union demanded and ob-
tained Chung's discharge and when its refusal to refer Randall was accepted
by APL as precluding the further employment of Randall.
The evidence does not establish that Chung was assaulted by any agent of the
Union and the allegation in the complaint to that effect is hereby dismissed.
"American Pipe and Steel Corporation, supra.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of APL and the Union, set forth in section III, above, occurring
in connection with the operations of APL, set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that APL and the Union and each of them have engaged in and
are engaging in certain unfair labor practices, it will be recommended that each
cease and desist therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act. Having found that both APL and the Union
are responsible for the discrimination suffered by Chung and Randall, it will
be recommended that they jointly and severally make Chung and Randall whole
for any loss of pay suffered by reason thereof. Chung has since been employed as
yeoman aboard the Cleveland. Although it appears that his present employment
is substantially equivalent to that which he held aboard the Wilson, it will be
recommended that he be offered employment aboard the Wilson. Randall must
be offered employment as a waiter aboard the Cleveland, and both must be rein-
stated with all seniority and other rights and privileges which they previously
enjoyed. Loss of pay on the part of both Chung and Randall shall be com-
puted on the basis of each separate calendar quarter or portion thereof during
the period, in the case of Randall, from September 18, 1950, and of Chung,
November 25, 1950, to the date of a proper offer of reinstatement to each. The
quarterly periods, hereinafter called quarters, shall begin with the first day of
January, April, July, and October. Loss of pay, for which APL and the Union
shall jointly be held responsible and shall jointly make each Chung and Randall
whole, shall be determined by deducting from a sum equal to that which each
would normally have earned for each quarter or portion thereof, his net earnings,'
if any, in other employment during that period. Earnings in one particular quar-
ter shall have no effect upon the back-pay liability of any other quarter. APL
and the Union, upon reasonable request, shall make available to the Board or its
agents for examination and copying all records pertinent to the calculation of
back pay due and opportunities for employment existing during the periods
mentioned. The record demonstrates that despite its protestations to the con-
trary, the Union does not refer applicants for employment to APL on a non-
discriminatory basis and certain of its shipping rules, in evidence, are wholly
inconsistent with the nondiscriminatory operation of a hiring hall. The legality
of the contract itself, however, was not placed in issue. Hence no recommenda-
tion will be made that it be set aside.
Upon the foregoing findings of fact and the entire record in the case, I make
the following :
CONCLUSIONS OF LAW
1. National Union of Marine Cooks and Stewards is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By causing American President Lines, Ltd., to discriminate in regard to the
hire and tenure of employment of John Chung and James Randall in violation
of Section 8 (a) (3) of the Act, the National Union of Marine Cooks and
is Crossett Lumber Company, 8 NLRB 440. Chung's refusal of APL's offer of employ-
ment as food controller and Randall 's failure to offer himself for assignment on September
27 are to be considered in this connection.
AMERICAN PRESIDENT LINES, LTD . 1435
Stewards has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
3. By refusing employment to James Randall on or about September 18 and
November 3, 1950, and by discharging John Chung on November 25, 1950,
American President Lines, Ltd., has discriminated in regard to the hire and
tenure of employment of those individuals thus encouraging membership in a
labor organization and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in NATIONAL UNION OF MARINE COOKS
AND STEWARDS, or in any other labor organization of our employees, by
discriminatorily discharging or refusing to hire any individual for failure
to obtain clearance from that labor organization except as permitted by
Section 8 (a) (3) of the Act or by discriminating in any other manner in
regard to the hire or tenure of employment or any term or condition of
employment.
WE WILL NOT in any like or similar manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed them by Section
7 of the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to John Chung and James Randall immediate and full
reinstatement each to his former or substantially equivalent position without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make each of them whole for any loss of pay suffered as a result of
the discrimination against them.
All our employees are free to become, remain , or to refrain from becoming
or remaining, members of the above-named union or any other labor organiza-
tion, except to the extent that this right may be affected by an agreement in
conformity with Section 8 (a) (3) of the Act.
AMERICAN PRESIDENT LINES, LTD.,
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.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
NOTICE
To ALL MEMBERS OF NATIONAL UNION OF MARINE COOKS AND STEWARDS AND TO
THOSE WHO SHIP THROUGH THE SAN FRANCISCO HIRING HALL
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause AMERICAN PRESIDENT LINES, LTD.,
its officers, agents, successors, and assigns, to discharge, refuse to hire, or
otherwise discriminate against employees or applicants for employment for
their failure to obtain clearance from this organization, except in accord-
ance with Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner cause or attempt to cause AMERICAN
PRESIDENT LINES, LTD., or its agents, successors, or assigns, to discriminate
against its employees in violation of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of AMERICAN PRESIDENT LINES,
LTD., its successors or assigns, in the exercise of rights guaranteed in
Section 7 of the Act.
WE WILL make John Chung and James Randall whole for any loss of pay
each may have suffered because of the discrimination against them.
WE HEREWITH WITHDRAW any objection to the employment of James Ran-
dall as waiter aboard the President Cleveland and of John Chung as yeoman
aboard the President Wilson.
NATIONAL UNION OF MARINE COOKS AND STEWARDS,
Labor Organization.
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.
CALIFORNIA PORTLAND CEMENT COMPANY and UNITED CEMENT, LIME
& GYPSUM WORKERS INTERNATIONAL UNION, LOCAL No. 89. Case
No. 21-CA-1272. December 29, 1952.
Decision and Order
On May 15, 1952, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
101 NLRB No. 232.