International Longshoremen's Union Local 17

National Labor Relations Board - Board Decisions

Nov 6, 1968

173 N.L.R.B. 594 (N.L.R.B. 1968)

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen 's and Warehousemen's
Union Local 17, International Longshoremen's
and Warehousemen 's Union (Associated Metals
Company of California ) and Stanley G. Kraus.
Case 20-CB-1716
November 6, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On July 23, 1968, Trial Examiner Harry H. Kuskin
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a supporting
brief, and the General Counsel filed a brief answering
the Respondent's exceptions and brief and supporting
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner,' as modified herein.
We agree with the Trial Examiner that the
Respondent and Associated Metals Company of
California had an exclusive hiring arrangement making
union clearance or dispatch or referral a condition of
employment,' and that the Respondent unlawfully
refused, on July 10 and 20, 1967, to refer complain-
ant Kraus for employment by Associated under the
parties' exclusive hiring arrangement. In finding the
Respondent's refusal to refer Kraus to have been
unlawful, the Trial Examiner relied on a number of
grounds, including several relating to Kraus' alleged
failure to pay union dues and fees, and his alleged
failure to perform his picket duty during the
Respondent's strike against Associated.
We agree with the Trial Examiner's ultimate
conclusion, but, in doing so, we do not find it
necessary to pass upon the issues relating to union
dues and fees, since the Respondent's business agent
conceded that one of the reasons Kraus was refused
clearance was that the Respondent believed that he
had failed to perform his picket duty during the strike
at Associated. As found by the Trial Examiner, a
union violates Section 8(b)(2) of the Act by imposing
such a discriminatory condition upon referral of an
employee under a hiring arrangement which makes
referral a condition of employment.'
Accordingly, we find that the Respondent caused,
or attempted to cause, Associated to discriminate
against Kraus in violation of Section 8(a)(3) of the
Act, and thereby violated Section 8(b)(2) and (1)(A)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, International Longshore-
men's and Warehousemen's Union Local 17, Inter-
national Longshoremen's and Warehousemen's Union,
Sacramento, California, its officers, agents, and
representatives, shall take the action set forth in the_
Trial Examiner's Recommended Order.4
'The Respondent excepts to the Trial Examiner 's credibility
resolutions . It is the Board 's established policy, however, not to overrule
a Trial Examiner 's resolutions as to credibility unless, as is not the case
here, the preponderance of all the relevant evidence convinces us that
they are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd . 188 F.2d 362 (C.A. 3)
The Trial Examiner 's Decision , apparently inadvertently, refers, in
section III, C, to the date of the events on the morning of July 20 as
June 20, and in section III, E, to the date of Kraus' reemployment on
May 11 , as May 12. The decision is hereby corrected in these respects.
2In addition to the grounds relied on by the Trial Examiner to find
an exclusive hiring arrangement , we note that when Kraus appeared for
work at Associated on July 20, without a dispatch slip, Losee, who
issues the dispatch slips at the union hall, informed Cody, Associated's
yard superintendent , by telephone , that Kraus had not been dispatched
by the Respondent and should not be on the job. Cody then pulled
Kraus off the job , and sent him to the union hall to get cleared by the
Respondent before Cody could permit him to work for Associated.
3N.L R B v Local 450, International Union of Operating Engineers,
AFL-CIO (Tellepsen Construction Co ), 281 F 2d 213 (C A. 5), enfg. as
modified 122 NLRB 564 , 567-568.
4The Order requires , inter alia, that the Respondent notify
Associated it has no objection to the employment of Kraus. This
requirement is not affected by the remark made by the Respondent's
agent Thompson to Sabo, vice president of Associated , about the time
the charge herein was filed, that Associated could do what it pleased
about Kraus, that Kraus was a lost cause . The Respondent contends that
Sabo took this remark to mean that , as far as the Respondent was
concerned , Associated could hire Kraus if it wanted to do so. However,
Sabo's entire testimony , including his statement that , "If the union
won't dispatch a man to us, we can 't put him to work," indicates that,
although Sabo viewed this as a hypothetically possible construction, he
did not in fact interpret the remark as having that meaning.
173 NLRB No. 95
INTERNATIONAL LONGSHOREMEN'S UNION LOCAL 17 595
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
HARRY H. KuSKIN, Trial Exarmner This case was heard at
Sacramento, California, on April 30, 1968. A complaint issued
herein on December 12, 1967, based on a charge filed on July
25, 1967,1 the complaint was thereafter amended on March
27, 1968. The complaint, as amended, presents the question of
whether International Longshoremen's and Warehousemen's
Union Local 17, International Longshoremen's and Warehouse-
men's Union, herein called Respondent, violated Section
8(b)(2) and (1)(A) of the Act by refusing to dispatch Stanley
G. Kraus, the Charging Party herein, on or about July 10, and
again on or about July 20, to Associated Metals Company of
California, herein called Associated, through the exclusive job
referral or job clearance system operated by Respondent,
because of Kraus' lack of membership in, and/or refusal to pay
monies to, Respondent and/or because Respondent believed
that Kraus had failed to engage in picketing on behalf of
Respondent. In its answer, as amended, Respondent denies
that it has engaged in any of the alleged unfair labor practices,
it does, however, admit that it is a labor organization within
the Act's meaning, that Frank Thompson has been at all
material times its secretary-treasurer and also its agent within
the meaning of the Act, and that it has entered into a series of
agreements with Associated, one of which, together with its
amendments, was effective from April 1, 1963, to May 31,
1967, and the most recent of which was executed on August
15, 1967, was made retroactive to June 1, 1967, and is to be
effective until May 31, 1970.
Upon the entire record, including my observation of the
witnesses, including their demeanor while on the witness stand,
and after due consideration of the briefs of the General
Counsel and Respondent, I make the following.
FINDINGS OF FACT
I. THE BUSINESS OF ASSOCIATED
The parties hereto stipulated that, if John J. Sabo, the vice
president of Associated, were questioned while he was on the
witness stand concerning the business of Associated, his
testimony would sustain the allegations of the complaint, as
amended, relating to commerce Accordingly, I find, as alleged,
that Associated is a corporation of the State of California with
offices and places of business in Sacramento and Benicia,
California, where it is engaged in the processing and selling of
junk and scrap metal, and that, during the past calendar year,
it purchased and received goods and materials valued in excess
of $50,000, which were shipped to it directly from outside the
State of California.
I find, upon the foregoing, as the parties also stipulated,
that Associated is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Longshoremen's and Warehousemen's Union
Local 17, International Longshoremen's and Warehousemen's
IAll dates mentioned hereinafter are in 1967, unless otherwise
indicated.
Union, admits , and I find, that it is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The bargaining relationship with Associated
The bargaining relationship between Respondent and
Associated dates back to the early 1960's and covered
Associated's operations at its two yards, one in Sacramento,
and one in Benicia, California. Of the two contracts, in
evidence, the first one was entered into on April 8, 1963, it
was thereafter amended in 1964 and 1965 and expired on May
31, 1967. Before the second of these contracts came into
being, there was a strike at Associated which began on
Monday, June 12, 1967, and ended on Monday, July 10, 1967.
On the latter date, an understanding was reached as to the
terms of an agreement between Associated and Respondent.
However, the agreement was not reduced to final form until
the first or second week in August 1967. On August 15, the
second contract was executed; it was made retroactive to June
1, 1967, and is to extend until May 31, 1970.
Each of these contracts sets forth in section 3 thereof a
union-security clause and a hiring clause. The hiring provisions
appear as section (a)(1), (a)(2), (a)(3), (a)(4) and (a)(5). Of
these, section (a)(1) provides that Associated agrees to operate
a nondiscriminatory hiring, promotional, transfer, and layoff
policy.
Section (a)(2) provides, in relevant part, that "it is
recognized ... that men with previous experience in the
industry who are willing to work are normally available
through the Union [Respondent herein] and it is expressly
agreed that when job openings occur, the Employer [Asso-
ciated] shall take advantage of the opportunity available to it
of obtaining men with previous experience in the industry
through the Union and will, therefore, notify the Union of its
intention to fill such job openings at least 24 hours prior to the
filling of such openings so that the Union may arrange for men
with such experience in the industry to apply for such job
openings. The Employer agrees that, in hiring new employees
(not on the seniority list), it will give preference to applicants
having the necessary qualifications who have worked in the
industry in the Sacramento area."
Section (a)(3) states that, "The Employer agrees that, if in
hiring a new employee (not on the seniority list) for a job, it
shall fail to give the notice provided in sub-paragraph (2)
above, or it shall hire one applicant for the job and shall fail or
refuse to hire another applicant who was qualified for the job
and who applied for the job either before the job was filled or
within twenty-four (24) hours after notice was given, as
provided in sub-paragraph 2 above, then the Union or an
employee feeling aggrieved may assign the matter as a
grievance to be taken up under the grievance and arbitration
procedure for determining whether the said hiring was in
violation of the Employer's Agreements in sub-paragraph 2. In
such event, if it finally is determined through the operation of
the grievance procedure that the said hiring was in violation of
the Employer's Agreements, the Employer will discharge the
man so hired and, in filling the job, will be bound by the
provisions of said sub-paragraph (2)."
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section (a)(4) affords representatives of the Union access to
employees on the job for the purpose of interviewing any
nonunion employee either before or promptly after he has
been put to work.
Finally, section (a)(5) provides that "The Union agrees that,
subject to the terms of the Agreement, it will not attempt in
any way to interfere with or prevent the hiring by the
Employer of any employee from any source whatever or under
any conditions whatever which the Employer may desire."
2. The referral or clearance practice in effect between
Respondent and Associated
Respondent, a "several industries" union, maintains pools
of available employees for each of these industries in the
Sacramento area, which pools consist of laid off employees
and others with experience in that industry who have reported
to the union hall their availability for work. One, Jack Losee,
an employee of Respondent, is the dispatcher in charge of
these pools. When called upon by an employer in a particular
industry for manpower, Losee refers experienced people from
that industry, as required. In these pools are regular members
of Respondent and nonmembers. When the former are
referred, Losee apparently issues them a dispatch slip and
indicates somehow that they are members in good standing
with Respondent. When nonmembers are referred, Losee issues
a dispatch slip and a work permit. The dispatch slip is intended
for the steward on the job and he, in turn, introduces the
individual, who is referred, to the representative of manage-
ment who will put that individual to work. As far as
Associated is concerned, the record shows that the dispatch
system has been in existence during the entire period that
Associated has "had dealings with" Respondent.
The normal procedure of hiring has been for Associated to
call Respondent's union hall when it needs employees and to
obtain the necessary referrals via the dispatch slip route. In
those instances where Respondent does not have qualified
persons for referral, Associated, upon being so informed,
advertises in newspapers for the needed help. Those who apply
are then tested for the required skills and, if they meet the test
and Associated is satisfied that they can do the work,
Associated sends them to the union hall of Respondent for
clearance. In this connection, Herb Cody, who was Asso-
ciated's yard superintendent during the relevant periods herein
and was Associated's manager of purchases at the time of the
instant hearing, testified that Associated has followed this
practice not because it wanted a dispatch slip but because it
understood that this was what Respondent wanted. And John
J. Sabo, the vice president of Associated, testified that, "if
[Respondent] wont dispatch a man to us, we can't put him to
work."
The record also discloses that Associated's employees, who
are within Respondent's jurisdiction, are either members or
holders of work permits. Kraus, the Charging Party herein, has
never been a union member and has held work permits from
Respondent. Between the first and tenth of each month, union
members are required by Respondent to pay at the union hall
their dues for the preceding month and work permit holders
are required to pay their permit fees on the basis of hours
worked during that month. Respondent notifies its stewards
on the various jobs covered by this hiring practice of any
delinquencies and they, in turn, inform the delinquent
employee. After "a certain period," Respondent reports
delinquencies to the employer involved, in keeping with the
section of the agreement with such employer requiring that the
affected employees remain in good standing with Respondent.
Sabo testified, in this respect, that Thompson, Respondent's
secretary-treasurer and business agent, would call to advise that
a particular employee "was behind in dues or something like
that. And that we were to convey the message to them that
they would get over to the union hall and pay their dues or
else they would be pulled off the job, at which time
[Thompson] indicated it appeared these people always had
money for whiskey and such, but never time to pay their
union dues "
As will appear hereinafter, the manner of obtaining work
permits from Respondent is of significance in appraising the
issues herein. Kraus testified, in this connection, that he was
given permission by Losee to go to work for Associated
July 20 before obtaining a work permit, with the under-
standing that he was to obtain the work permit at a later time.
This is denied by Losee. According to him, the practice
requires the worker to receive a dispatch slip from Respondent
first, by coming to the union hall to get it. Thompson testified
to the same effect,' listing only one exception, not relevant
here, namely, the situation in which a worker mails his work
permit card, which has been filled up, to the union hall with a
check or money order to pay permit fees due. Respondent will
in that circumstance issue a new work permit card to that
individual and mail the card to him.
3. Kraus' employment history with Associated
The following background facts as to Kraus' employment
history which preceded the critical events beginning on July
10, will also help to fix the frame of reference of such events.
Kraus began to work for Associated in 1962. Between 1962
and 1964, according to Kraus, he experienced some layoffs
and some other work interruptions. In 1964, Kraus left for
Nevada and stayed there about a year. In November 1965, he
was again employed by Associated and worked until April 27,
1967. At that time, he had "family trouble and quit and left
town for about two weeks." On May 10, 1967, Kraus applied
for work to Sabo, the vice president of Associated. Kraus was
advised that work was available for him at that time at
Associated's installation in Benicia, California, which is about
an hour and a half of driving distance from Sacramento, until
such time as Associated could use him on the night shift at its
12th Street yard in Sacramento, and that he would have to
start as a new employee, without seniority. Kraus agreed to
these terms. The need for clearance was apparently mentioned
by Sabo at that time. Kraus began work at the designated time
of 8 a.m. on Thursday, May 11. He worked on Thursday and
Friday of that payroll period, which ended on May 14, and
during the following two payroll periods. Thereafter, he was
assigned by Associated as a press operator to the 12th Street
yard in Sacramento. His stint at the 12th Street yard lasted 1
week; i.e. through the week ending June 4. He spent the next
10 days in jail as the result of being charged with a
misdeamenor 3 On the day of his release, according to Kraus,
he went to the union hall of Respondent and signed up for
2Thompson was called as a witness by the General Counsel under
section 43 (b) of the Federal Rules of Civil Procedure.
Kraus testified that he had been drinking and got into a fight with
his father-in-law.
INTERNATIONAL LONGSHOREMEN'S UNION LOCAL 17 597
picket duty in connection with the strike then being
conducted by Respondent against Associated , and did about 3
weeks of picket duty (the strike lasted until July 10, as
heretofore found). Except for an hour or so of work for
Associated on July 20, to be described more fully hereinafter,
Kraus has not worked for Associated since June 4.
It is clear that Kraus was not dispatched through the union
hall on May 11 to the Benicia yard. Kraus testified that he
knew that he had to have a dispatch slip in order to work there
and that, as dispatch slips were not mailed out to workers by
Respondent, he would have to go to the union hall to get one.
Yet, also according to Kraus, he made no effort to contact the
union hall upon his being hired at about 5:30 p.m. on
Wednesday, May 10, for the Benicia job, for the claimed
reason that it was too late. Significantly, too, there is direct
testimony by Kraus that he was aware that the union hall in
Sacramento was open each working day until 6 or 7 p. m.4
Nor did Kraus seek permission from Sabo to report to the
Benicia yard the following morning a bit later than the
assigned time of 8 a.m. in order to allow him enough time to
obtain a dispatch slip at the union hall that morning before
reporting for work. And during the period that he worked at
the Benicia yard, Kraus made no effort to contact the union
hall either in person or by telephone or by mail about getting a
dispatch slip. In answer to specific questions as to his failure to
do so, Kraus testified that he did not have time because he
finished work at 4 30 p.m., that he was "broke" and did not
have the wherewithall to buy the necessary gasoline to drive
his car to Sacramento and then back to Benicia, that he never
thought of making a telephone call to the union hall either
before he left for Benicia to go to work or while he was there;
and that he saw Thompson at the Benicia yard within 4 days
after he started to work there and conversed with him about
this, and felt no need to contact the union hall thereafter from
Benicia. As to the latter conversation, Kraus' testimony is that
Phil Rubicatta, the union steward, was also present, that
Thompson approached lain and they talked and that
Thompson said that "as soon as [he, Kraus] got a chance when
[he] got back to Sacramento, to get squared away with the
union hall and [he] told [Thompson, he] would."5
Thompson, on the other hand, denied that he ever saw Kraus
while Kraus was at the Benicia yard, and insisted that he did
not know that Kraus had been working there "until after the
strike was on."6 I note, also in this connection, that 1) after
his transfer to the 12th Street yard of Associated at the end of
May, Kraus did not go to the union hall about a dispatch slip,
although he worked at the 12th Street yard that entire week,7
and 2) he offered the rather lame excuse that he did not have
time to do so because he worked on the night shift until 1.30
a.m. and then would sleep each day until about 3 p.m.
4Dunng cross-examination by counsel for Respondent , Kraus'
attention was called to his prehearing affidavit to a Board agent in
which he swore that the conversation with Sabo occurred about 5 p.m.,
that the union hall was then closed and that Sabo told Kraus that he
would call Thompson (the business agent and secretary -treasurer of
Respondent) and explain and get a clearance for Kraus . As to this,
Kraus testified that he did not think that this portion of his affidavit is
correct, adding , " I don 't know, unless I just thought maybe that was
what went out, because I don 't remember just all that went on between
me and Sabo."
5 Kraus testified further that he understood Thompson 's remarks to
mean that he was to come up and get his dispatch slip.
In all these circumstances, I find unconvincing the excuses
given by Kraus for his maction in regard to obtaining clearance
from Respondent for the job at Associated's yard in Benicia.
Rather do I infer, and find, that Kraus' failure (1) to apply to
the union hall for a dispatch slip for the job at the Benicia yard
before leaving from Sacramento to begin work; (2) to take
steps to obtain such a slip while he was on that job, and (3) to
seek to obtain a dispatch slip when he returned to Sacramento
and was transferred to the 12th Street yard, was the result of a
conscious refusal by Kraus to abide by the existing referral
practice.
4. Kraus' record with respect to paying permit fees to
Respondent
In keeping with the prevailing referral and clearance
practice described above, Kraus, who was not a member of
Respondent and therefore worked as a permit man, had to pay
at the union hall by the tenth of each month permit fees due
for the prior month. Kraus admitted being delinquent in
paying his permit fees in the past and that he "usually paid
them about every 2 or 3 months." It was his further
uncontradicted testimony that when he quit his job at
Associated, at the end of April 1967, his permit fees were fully
paid. He testified also that he did not pay permit fees in May
because he did not work a full month.
B. The Alleged Refusal by Respondent on July 10 to Refer
Kraus to Associated for Employment
As heretofore found, on July 10, Respondent and
Associated agreed, in principle, as to the terms of an agreement
and the pending strike then ended. Participating in these
negotiations in behalf of Associated were Wayne Menebroker,
Esq., and President Novak and Vice President Sabo; 8 and
participating in behalf of Respondent were Business Agent
Thompson together with a negotiating committee, among
whom was Sal Garcia, an employee of Associated. When this
order of business was consummated, the matter of resuming
operations at Associated was discussed. Thompson testified
that he asked Novak and Sabo "which of their employees they
wanted back,"9 and that he believes that Sabo "said something
about sending a fellow by the name of Kraus back who was
not a part of the list," that he made no comment thereon,io
and that he does not remember whether Garcia did or not.
Sabo also testified concerning this matter. According to hun,
Thompson wanted to know whom Associated wanted "to
come back on the job and in what order;" that, because
Associated was going "to reinitiate a night shift on [its] baling
press," he asked that Kraus be dispatched to Associated to
6I have heretofore found that the strike began on June 12
BAs already found, Kraus has worked for Associated for only about
an hour since that time.a
Associated is a member of the Sacramento Employers' Council and
Menebroker, its counsel , was acting as Associated's representative during
the negotiations.
9Thompson explained that he raised this question on the assumption
that Associated might not wish to resume its operations with a full
complement right after the strike.
At another point , Thompson answered "not that [I] can
remember" to the question of whether he told Sabo that Respondent
would not clear Kraus then or any other time.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work as the baler operator on the night shift, that Garcia
thereupon interjected that "the union would have something
to say about that", and, contrary to Thompson's testimony
that he said nothing, that Thompson followed with the remark
that "they wouldn't dispatch Kraus, that they were going to
nd their union of drunks, of undesirable people." Sabo added
that he did not recall all the descriptive terms that were used.
Neither Novak nor Garcia testified in this proceeding, and,
while Menebroker did testify, he had no recollection that
Kraus' name was mentioned during the July 10 meeting. In the
circumstances and particularly since the testimony of
Thompson and Sabo is mutually corroborative on this point, I
attach no weight to Menebroker's testimony, and find that the
dispatching of Kraus by Respondent to Associated was
discussed at that time. Insofar as the details of this
conversation are concerned, Thompson was unable to recall
some of them whereas Sabo testified in a straightforward
manner and had no such difficulty. Furthermore, Thompson
testified in a guarded manner and appeared to be withholding
information. I, therefore, credit Sabo rather than Thompson in
all respects, including the instance in which their testimony is
in conflict. I therefore conclude, and find, that the episode
occurred in the manner testified to by Sabo.
Later the same day, Respondent convened a meeting at the
union hall at which Thompson called out the names of those
employees of Associated who were to return to work. Kraus'
name was not called. When asked whether Kraus came up to
hun later and asked why his name had not been called,
Thompson answered, "not that I can remember." In contrast
to the latter testimony, Kraus testified that he did have such a
conversation. More particularly, Kraus testified that he made
such an inquiry of Thompson after the union meeting in the
presence of several named employees,' 1 that Thompson told
him his name was not on the list to go back to work because
Associated had discharged him,12 and that when he asked
Thompson, "Well, what about going to work someplace else
out of one of the other houses?," Thompson answered, "I ain't
got time to talk about it." He testified further that he then
left, not knowing that Associated wanted him to go back to
work.
I note that Thompson did not specifically deny that he had
a conversation with Kraus on July 10, after the union meeting,
in which Kraus inquired as to his nonreferral, nor did he
specifically deny the remarks attributed to him by Kraus in
connection therewith. Thompson would only say that he
cannot remember such an episode. Although Kraus did not
testify truthfully at times, his testimony in this regard
impressed me as reliable when considered in the light of the
inherent probabilities of the situation and the sequence of
events herein. I therefore credit Kraus and find that the
conversation did take place and that Thompson made the
remarks attributed to him by Kraus.
11 Perez, Hernandez and Smith. None of these individuals testified
and there is no showing that they were unavailable at the time of the
hearing.
12In answer to a question by the undersigned as to whether
Thompson indicated why Associated did not want him to work, Kraus
answgred, "The only thing he said was the reason I went to jail."
On cross -examination , Kraus explained that he wanted Losee to
make out the slip and have it ready for him to pick up that morning in
order to get to work by 8 o'clock.
C. The Alleged Refusal by Respondent on July 20 to Refer
Kraus to Associated for Employment
On July 19, Kraus telephoned Cody, who was then
Associated's yard superintendent, at his home in order to
advise him that he wished to return some keys which belonged
to Associated. According to Kraus, their conversation took the
following course: Cody inquired as to Kraus' whereabouts,
saying that Kraus was supposed to have returned to work for
Associated the day after the strike ended; Kraus then
explained to Cody that Thompson had told him that
Associated had discharged him; Cody answered that Kraus had
not been discharged but rather that Sabo had asked Thompson
for Kraus before asking for any others but that Thompson had
said "no;" and, lastly, Cody then told him to go to the union
hall and get cleared and report to work the following morning
at 8 o'clock. Cody also testified concerning this conversation.
He corroborated Kraus' testimony as to what prompted Kraus
to telephone him, as to his inquiring as to whether Kraus was
then working, and as to his offering Kraus a job to begin the
following morning subsequent to getting clearance at the union
hall that morning. Cody made no mention of any reference by
Kraus during this conversation to any dialogue between Kraus
and Thompson after the union meeting on July 10 in which
Kraus inquired as why he had not been dispatched that day for
work to Associated. However, since Cody was not asked about
this aspect of Kraus' testimony, since Cody corroborated
Kraus on the other aspects of their conversation, and as Kraus'
testimony that he mentioned the details of his abortive
attempt to be refereed to Associated accords with the inherent
probabilities of the situation, I find that Kraus testified
credibly, and more fully than Cody, as to the telephone
conversation between them on July 19.
Kraus reported to work at Associated on July 20 at 8 a.m.,
without appearing at the union hall first and obtaining a clear-
ance slip. Kraus' explanation for following this procedure was as
follows He was at home at about 7 a.m. when he telephoned the
union hall and spoke to Losee, the union dispatcher. He told
Losee that Associated wanted him to come back to work and
asked Losee whether he could get a dispatch slip. 13 Losee
replied that he could but that "he thought Frank Thompson had
a beef against [him, Kraus,] for something." At this, Kraus
pointed to the fact that Cody wanted him to report at 8 o'clock
and asked "would it be OK if [he] went ... to work, then if
Frank Thompson, when he comes in, has anything to say, have
him call." Losee agreed to this arrangement. At 8 a.m. he started
to work at Associated and worked until 9 or 9.30 when his work
was interrupted by a message from Baker, the yard foreman, that
Respondent had called and wanted to see Kraus at the union hall.
He then went to the union hall where he found Losee and Garcia.
He did not ask Losee for a dispatch slip, trying only to find out
from Losee "what the beef was about," but Losee told him to
wait for Thompson to arrive. 14 When Thompson appeared,
14During cross-examination , Kraus amplified this testimony to say
that Losee said that he did not know what it was all about but that
Thompson had telephoned him and said that he did not want Kraus
dispatched to Associated out of the union hall . Although Losee did not
directly controvert this testimony , he denied having any conversation
with Thompson about dispatching or clearing Kraus.
INTERNATIONAL LONGSHOREMEN'S UNION LOCAL 17 599
Garcia and he went to Thompson's office He questioned
Thompson as to why he "couldn't go to work," and Thomp-
son answered that "[he] was irresponsible's and he didn't
pull his picket duty and he didn't want guys like [him]
working out of the union hall," and also that he didn't pay
his dues half the time and that he, Thompson, "had to chase
[him] down in order to get them." At this, Kraus left, re-
turned to the 12th Street yard, and spoke to Cody, telling
Cody that Thompson had refused to let him have a dispatch
slip so that he could go to work.' 6 Cody thereupon indi-
cated that if Kraus could get cleared, he would have a job
with Associated.
Cody's version of what transpired on the morning of June
20 involving Kraus begins with the time when Kraus reported
to work. According to Cody, Kraus reported for work at 8
o'clock and told him that he had made arrangements for the
Union to send the dispatch slip through the mail."' Within an
hour, he was called on the telephone by Losee, the dispatcher,
and told that Kraus did not have clearance and should not be
at the yard. Cody testified further that he told Losee that he
would send Kraus to the union hall, which he did, and he also
told Losee that this was a matter between Respondent and
Kraus. Cody did not testify as to what happened that day after
Kraus left for the union hall.
Losee, who testified in behalf of Respondent, acknowl-
edged that he was in telephonic communication with both
Cody and Kraus that morning. His testimony is, however, at
odds with them in significant respects. Thus, Losee first
testified that he received a telephone call from Cody about 8
o'clock in respect to Kraus and that, during the course of that
conversation, Kraus was put on the line and they conversed.
When called on surrebuttal, he acknowledged that he was in
error concerning the single telephone call and that there were
two separate telephone calls to him about 2 or 3 minutes
apart, one from Cody and one from Kraus, in that order. As
already noted, Cody testified that he had been called on the
telephone by Losee between 8.30 and 9 a.m. after Kraus had
been at work, and Kraus testified that he had called Losee
around 7 a.m. As to the content of his conversation with
Cody, Losee testified that Cody told him that he, Cody,
wanted to employ Kraus, to which he, Losee, replied that
Cody should send Kraus to the union hall and he will dispatch
Kraus; whereas Cody testified, as found above, that Losee
called to tell him that Kraus did not have a dispatch slip and
should not be at the yard. And as to the content of his
conversation with Kraus, Losee testified that Kraus spoke
about getting a dispatch slip, that he told Kraus that he would
have to come to the union hall to get one, and that Kraus said
something about having a transportation problem and wanting
to stay at work and get the dispatch slip "later on"; in the
latter connection, he specifically denied that he told Kraus, as
Kraus had testified, that it would be all right to work and get
the dispatch slip later. Gloria Joyce Kraus, who is Kraus' wife,
testified, in this connection, that her husband called Losee on
the telephone from their home at about 7 o'clock that
morning and that she listened to the conversation on an
extension telephone. Her version of that conversation was that
her husband asked Losee for a work permit to work at
Associated, that Losee said that her husband could have one;
that her husband then indicated that he had to be at work at 8
o'clock; and that he requested, and received, permission from
Losee to pick up the work permit that evening; 18 and that, in
the course of this conversation, Losee said that Thompson had
a "disagreement" or "beef" with her husband and wanted to
talk to him about it.
I am persuaded that the above two telephone conversations
occurred, contrary to the testimony of Losee, at about 7 a.m.
and about 9 a.m., respectively, the first one being the
conversation between Kraus and Losee and the second one
being the conversation between Losee and Cody, initiated by
Losee. Persuasive in reaching this conclusion are (1) Losee, on
surrebuttal, retracted his initial testimony, on direct, that both
conversations took place during one telephone call and
testified, instead, that there were two telephone calls, (2)
Losee's further testimony, on surrebuttal, that the telephone
calls both occurred around 8 a.m., the first call being from
Cody to him, is refuted as to origm, timing and content by the
testimony of Cody, who impressed me as a credible witness,
and whom I credit. Thus, Cody testified that there was a
telephone conversation between him and Losee at about 8.30
or 9 a.m., which Losee initiated; and that, during that call,
Losee registered the complaint that Kraus was at work without
a permit from Respondent. And emphasizing the likelihood
that such a call was placed by Losee to Cody is (1) Losee's
own testimony that Garcia came to the union hall that
morning and alerted him to the fact that Kraus was working at
the 12th Street yard of Associated without being properly
dispatched, (2) Losee's failure specifically to deny that Kraus'
being at work without a permit was discussed with Cody in a
telephone conversation that morning, and (3) the mutually
corroborative testimony of Cody and Kraus that Kraus was
told by management that morning of a telephone call from
Respondent to the effect that he was wanted at the union hall.
And with particular reference to the tinung of the first
telephone call, I note that the mutually corroborative
testimony of the Krauses that the call occurred at about 7
o'clock that morning is consistent with the probabilities of the
case. Thus, since the call admittedly concerned a dispatch slip
for a job that had been scheduled to start at 8 o'clock that
morning, the call would have had to be placed considerably
before 8 o'clock if it was to accomplish its objective.
I have heretofore indicated that Cody rather than Losee is
to be credited with respect to the content of the second
telephone conversation. In regard to the first conversation, the
testimony of the Krauses and Losee leave no doubt that Kraus
did ask Losee on the telephone about obtaining a dispatch slip
in connection with his job at Associated scheduled to begin
that morning, that Kraus either assumed , or Losee told him,
that, in accordance with applicable procedures, he should
appear at the union hall in order to get the dispatch slip, and
that there was a discussion between them as to whether an
exception could be made so that Kraus could report to work
isIn this connection , although Kraus testified, at first, that
Thompson did not explain what he meant by the word "irresponsible,"
he thereafter testified that Thompson referred to his being in jail, his
going to work at the Benicia yard without a permit and his not showing
up for work half the time.
16 During cross-examination , Kraus added that he inquired from
Thompson as to when he could be sent to work out of the union hall
and Thompson replied that as far as he, Thompson, was concerned that
woulI never happen.
Cody was not sure whether Kraus told him that he had been to
the union hall or that he had talked to Losee.
18According to Mrs. Kraus, her husband could not have con-
veniently gone to the union hall and reported for work on time as he
had not yet eaten breakfast and she had not yet fixed his lunch.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without going to the union hall first . However , the evidence is
in sharp conflict as to whether Losee made an exception in this
instance thereby permitting Kraus to report to work with the
understanding that he would obtain his slip later. Thus, Kraus
testified that when he called Losee from his home , he, at first,
sought to have Losee prepare his dispatch slip in advance so
that he could pick it up on the way to work, but, when Losee
mentioned "a beef" by Thompson , he suggested , and Losee
agreed , that it "would be OK if [he ] went . . . to work, then if
Frank Thompson , when he comes in, has anything to say, have
him call ." Mrs. Kraus , who claims to have listened to this
conversation on the extension telephone , tells a somewhat
different story. She testified , in effect , that Kraus was in no
position to go to the union hall before work as he had not yet
eaten his breakfast and she had not yet prepared his lunch and
that Kraus ' objective in making the call was to obtain
permission to go to work at Associated that morning and to
pick up his work permit that evening , and that such permission
was obtained from Losee. Casting doubt on these two versions
is Cody's credible testimony that Kraus told him when he
reported for work that he had made arrangements for the
Union to send the dispatch slip through the mail . In the light
of all the foregoing , Losee 's testimony to the effect that he
made no exception on this occasion seems more plausible, I
find , than the testimony of the Krauses. In so finding , I rely on
(1) the fact , as I have found , that Losee called Cody about 9
o'clock that morning , after being alerted by employee Garcia
that Kraus was working at Associated without a permit, to say
that Kraus had not been dispatched and should not be on the
job-a call which Losee would , in all probability , not have
made had he, as the Krauses testified, made an exception to
the referral routine in this instance; (2) the fact that Kraus told
Cody that he was to receive a dispatch slip through the mail
when neither he nor his wife testified to such an understanding
with Losee , thereby indicating that Kraus was not forthright in
his approach to Cody, and (3) my finding heretofore that
Kraus consciously refused during May to abide by the above
existing referral practice in connection with his job at
Associated 's Benicia yard . Accordingly , I conclude , and find,
as Losee testified , that Losee refused Kraus ' request for
special permission to report for work at Associated without a
dispatch slip, and to get the dispatch slip later. And I find
further that, notwithstanding such refusal by Losee, Kraus
reported for work without a dispatch slip and was permitted to
start work only because of his misrepresentation to Cody that
he had been given permission by Respondent to do so.
As heretofore found , Kraus testified that, when he was told
by management that morning that he was wanted at the union
hall, he left his job and went to the union hall, where he spoke
first to Losee and then to Thompson in the presence of Garcia
and that, in the latter conversation , he inquired from
Thompson as to why he "couldn 't go to work" and Thompson
gave him a number of reasons why. However , Losee did not
recall Kraus ' coming into the office that day; Garcia did not
testify in this proceeding, and Thompson could recall only one
meeting at the union hall at which Kraus and he were present,
which meeting , I find hereinafter, took place considerably
after July 20. In all these circumstances , including the
noncommittal testimony of Thompson, and the probabilities
and logic of the situation , I am persuaded that Kraus reported
to the union hall that day , after he left the 12th Street yard,
and had the conversations with Losee and Thompson testified
to by him.
D. The Events Subsequent to July 20
As already found, the charge herein was filed on July 25.
On July 29, according to Kraus, he appeared at the union hall
in order to get a dispatch slip so he could go back to work,
being prompted to do this by the fact that he had received a
letter from one, Twohey , the Board agent investigating the
charge, to the effect that Thompson did not object to his going
back to work. Kraus testified further , in substance, that the
following then occurred : The executive board of Respondent
was having a meeting at that time and he attended the meeting.
Thompson , who was present , asked why he was there and he
adverted to the letter which he had received from Twohey.
Thereupon , Thompson said that he, Thompson, was not going
to let him go back to work then or any other time, and that
he, Thompson , had told the same to either Twohey "or
someone" on the telephone. Thompson followed this by
asking who had "put [him] up to going to the National Labor
Relations Board" and got "kind of vulgar." This made him
"mad" and he left. Thompson also testified concerning this
episode. His testimony was that Kraus brought up to the
committee that he had not been referred to work at
Associated , that "quite an argument " ensued , accompanied by
shouting on all sides and that, at one point, Kraus got up, was
"in a highly emotional state and ... stalked off." Thompson
denied the remark attributed to him by Kraus about never
referring Kraus to Associated. When asked whether anyone
from Respondent told Kraus that, "We will not dispatch you
now or any other time to Associated Metals," Thompson
answered, "I don't know because there was a regular shouting
match going on there." Here, too, I find that Thompson did
not testify in a forthright manner. Furthermore , as between
Kraus and Thompson , I find Kraus to have been the more
credible witness concerning this episode. I, therefore, con-
clude, and find, that Kraus did talk with Thompson at the
union hall on July 29 and that Thompson told Kraus that he
would never be going back to work for Associated.
There is record testimony that Thompson and officials of
Associated had occasion after July 20 to discuss the matter of
putting Kraus to work at Associated. In this connection, Sabo,
vice president of Associated , testified concerning two tele-
phone calls in respect to Associated 's need for burners that he
received from Thompson during July, i .e. about July 24 at the
Benicia yard and a week later at his home . During the first
telephone conversation , according to Sabo, Kraus' name came
up and he requested that Kraus be referred . Thompson then
said that he had washed his hands of Kraus, that "we could do
what we pleased about Kraus , that Kraus was a lost cause and
that was it." Sabo testified further that, although he felt that
this "possibly" meant that Respondent 's position was that
Associated was free to go ahead and hire Kraus, he took no
steps thereafter to employ Kraus. During the second telephone
conversation , according to Sabo, Thompson advised him that
he, Thompson , had an experienced shipyard burner and
inquired whether he should send the individual to him for an
interview . He agreed to the interview and asked at the same
time that Thompson dispatch Kraus, who was also a burner, to
him. To this, Thompson replied that "he wouldn't dispatch
[Kraus] this time or any other damn time ." In respect to the
foregoing , when Thompson was asked whether Sabo had,
sometime after the strike ended , asked for the dispatch of
Kraus in the course of a discussion about burners, Thompson
answered "Not that I can remember, no." And I have
INTERNATIONAL LONGSHOREMEN'S UNION LOCAL 17
heretofore found that Thompson gave the same answer to the
question of whether he ever told Sabo that Respondent would
not clear Kraus then or any other time. Further, when asked
whether there was any time when Kraus could go back to work
for Associated, Thompson said that there was such a time but
that "he was not sure whether he made this outright statement
to Sabo or anyone down there but [that he is] pretty sure
[he] mentioned it to Twohey [the Board agent] and [he]
might have made that statement to Sabo [after Twohey visited
hum]." Since Thompson's testimony tended, despite its general
lack of forthrightness, to corrobrate Sabo's testimony, in part,
and since Sabo impressed me as a reliable witness, I credit Sabo
in all respects and find that 1) about the time the charge was
filed herein, Thompson communicated to Sabo the above
hands-off remark, which Sabo properly viewed, in context, as
being ambiguous and as not warranting Associated to proceed
to hire Kraus without clearance by Respondent and 2) about a
week later, Thompson told Sabo, who had asked for the
referral of Kraus as a burner, that Respondent would not
dispatch Kraus then or "any other damn time" to Asso-
ciated.' 9
There is also uncontroverted testimony by Cody, the plant
superintendent, and by Attorney Menebroker, who handled
the contract negotiations for Associated, as to separate
conversations with Thompson about Kraus during late July or
early August. According to Cody, about a week or two after
July 20, Thompson and he discussed Kraus, and Thompson
said that "he didn't think he needed people like [Kraus] in his
union," that Kraus "was irresponsible and he didn't pay his
union dues." Menebroker placed his conversation about the
latter part of July or the first part of August, after discussions
had been had with Respondent over the language to appear in
the final agreement . Menebroker then asked Thompson, at the
instance of Associated's president, Novak, who also attended
the contract discussions, why he, Thompson, did not want
Kraus to work for Associated; and, to this, Thompson replied,
in substance, that Kraus was delinquent in his union dues.
Although Menebroker was unable to recall other details of this
conversation with Thompson, and could not recall the specific
words spoken by Thompson about Kraus, I am satisfied that
he testified credibly in regard to Thompson's statement about
Kraus' dues delinquency. I, therefore, credit the above
uncontroverted testimony of Cody and Menebroker and find
that Thompson made manifest to them his opposition to
dispatching Kraus for work to Associated, giving as reasons
therefor that Kraus was irresponsible and was delinquent in
paying the work permit fees required by Respondent.
E. Contentions, Analysis, and Conclusions
The General Counsel contends, in effect, (1) that, at all
times material herein, Respondent and Associated maintained
and enforced an exclusive arrangement or practice whereby
Associated sought and obtained all its yard employees through
Respondent and required clearance or approval by Respondent
as a necessary condition of employment; (2) that on or about
July 10 and on or about July 20, Respondent refused to
dispatch Kraus to Associated for employment because of his
19There is testimony by Kraus, which I have credited , that on July
29 at the executive committee meeting of Respondent, Thompson told
Kraus he would never dispatch Kraus.
601
lack of membership in Respondent and/or his refusal to pay
certain monies to Respondent, and/or Respondent's belief that
he failed to engage in picketing in behalf of Respondent and
(3) that such refusal was in violation of Section 8(b)(2) and
(1)(A) of the Act. Respondent, however, contends that no
such violations occurred as (1) Kraus did not undertake to
obtain a dispatch slip in accordance with Respondent's lawful
and reasonable procedures; and (2) in any event, as the
issuance of a dispatch slip was not a condition precedent to
employment by Associated, a refusal to issue in these instances
was not vulnerable under the Act.
As to Respondent's first contention above, it is clear that
Kraus undertook to obtain a dispatch slip in substantial
accordance with Respondent's claimed lawful and reasonable
procedures. Thus, the situation of July 10 was an abnormal
one, in that Associated's operations were then about to resume
after a shutdown as the result of a strike called by Respondent,
and Respondent was asked by Associated to refer Kraus and
others to it for work the next day. Respondent proceeded by
convening a union meeting and dispatching those employees
who appeared on a list prepared by it for that purpose. Kraus'
name was not on the above mentioned list and, right after the
meeting, as I have found, he sought to find out from
Thompson, Respondent's business agent, why his name did not
appear on the list. Thompson rebuffed him and knowingly
gave him the false reason that Associated had discharged him.
In all these circumstances, it is clear, and I find, that Kraus
undertook to obtain his dispatch slip in accordance with the
procedures established by Respondent in that instance. And as
to the situation on July 20, it is true, as I have heretofore
found, in substance, that Kraus did disregard Respondent's
claimed lawful and reasonable procedure at first, by going to
work for Associated at the 12th street yard without first
obtaining a dispatch slip at the union hall. However, it is
further established, and I find, that this dereliction was
corrected thereafter. Thus, within less than 2 hours, Kraus
appeared at the union hall to obtain a dispatch slip for the job
after having been told by Associated of a telephone call from
the union hall saying that he was wanted there because he did
not have a dispatch slip. In seeking the dispatch slip at that
time, Kraus was meeting Respondent's claimed "reasonable
procedure," and I so find, albeit he delayed somewhat in doing
so.
In its second contention, Respondent states the premise
that the issuance of a dispatch slip was not a condition
precedent to employment by Associated and argues therefrom
that, in such a context, even if it be assumed that there was a
refusal to issue Kraus a dispatch slip in these instances, no
violation would result. This premise puts squarely in issue the
General Counsel's contention stated above, viz, that Respond-
ent and Associated maintained and enforced an exclusive
arrangement or practice whereby Associated sought and
obtained all its yard employees through Respondent and
required clearance or approval by Respondent as a necessary
condition of employment.
The full relationship between Associated and Respondent
consists of their collective-bargaining agreement and the
practice or arrangement in effect between them. I am satisfied
that, in combination, they amply support the General
Counsel's contention that there was an exclusive referral or
clearance system in effect. Thus, under the contract terms set
forth heretofore, Respondent has undertaken to supply
experienced help to Associated; and Associated, in turn, has
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed to notify Respondent of any openings. Further, these
contract terms have been implemented by a practice, also set
forth above, whereby applicants must be cleared by Respond-
ent before they are hired, irrespective of whether such
applicants originate with Respondent or come from other
sources tapped by Associated when Respondent is unable to
supply experienced help. In this connection, Cody, the yard
superintendent of Associated, testified, as I have found, that
Associated followed this practice because it understood that
this was what Respondent wanted, and Sabo, the vice
president of Associated, explained that "if [Respondent] won't
dispatch a man to us, we can't put him to work." It follows
from all the foregoing, and I find, that clearance by Respond-
ent was required as a condition of employment by Asso-
ciated? 0 In any event, it is clear, and I find, that on July 10,
1967, clearance was a condition of employment with respect
to Kraus and Kraus has since then been deprived of employ-
ment with Associated because he failed to get such clear-
ance.21
There remains for consideration the reason or motive that
prompted Respondent to deny clearance to Kraus. As
heretofore found, on July 10, Thompson, the business agent
and secretary-treasurer of Respondent, told Associated, who
wanted to hire Kraus, that Respondent would not dispatch
Kraus to Associated as Respondent "was going to rid their
union of drunks, of undesirable people," however, later that
day, after a union meeting , Thompson gave Kraus an entirely
different and untruthful reason for not dispatching him,
namely, that Associated had discharged Kraus. Thereafter, on
July 20, when Kraus again sought to be dispatched to
Associated, having been asked by Associated to get such
clearance as a condition of employment, Thompson gave
different reasons to Kraus for his not being dispatched than he
had given to Kraus on July 10, namely that Kraus was
irresponsible, did not pull his picket duty22 and did not pay
his dues half the time and he "had to chase [ Kraus ] down in
order to get them." Also, in subsequent conversations with
officials of Associated, Thompson deviated from this critical
appraisal of Kraus as a drunk and undesirable . Thus, he told
Cody that Kraus was irresponsible and did not pay his dues
and told Menebroker only about Kraus' not paying his dues. It
is patent from all the foregoing, and I find, that, beginning on
July 10 and thereafter, although Associated wanted to employ
Kraus, Respondent refused to clear Kraus for such employ-
ment, giving shifting, as well as inconsistent, reasons therefor.
20 See Twin City Roofing, A Div. of Harlan E. Moore & Co., 165
NLRB No. 16, enfd . sub nom. Local Union No. 230, Sheet Metal
Workers International Association , AFL-CIO v. N.L.R.B, 67 LRRM
2656 (C.A. 7); Bricklayers, Masons and Plasterers International Local
Unigl No. 18 of Missouri, 151 NLRB 160.
The above finding is not undercut by the episode at the Benicia
yard involving Kraus. Thus , while there is no indication in this record
that Respondent ever protested to Associated over the fact that Kraus
was working without a clearance from it , Respondent 's refusal
thereafter to refer Kraus to Associated on July 10 and again on July 20,
on dues paying grounds , inter alia, establishes , I find, that it was not
going to acquiesce in any failure to comply with the existing clearance
procedure . And as to Associated , I find that it adhered to the
procedure , at the outset, by requesting Kraus to get clearance for the
Benicia job and , absent notification by Respondent that Kraus had not
been cleared , an inference is not warranted that Associated acquiesced
in Kraus' action.
I note, however, that some of the above reasons reveal a
pattern of preoccupation by Respondent over alleged non-
compliance by Kraus with its dues requirements and over
Kraus' alleged failure to do picket duty during the strike. Thus,
Thompson's remark to Sabo, Novak and Menebroker on July
10 about Kraus being a drunk and an undesirable reveals, on
analysis, an undercurrent of concern over dues paying. For, as
Sabo credibly testified, when Thompson would call him
concerning a dues delinquency of an employee, he would
comment that these people always had money for whiskey and
such, but never time or money to pay their union dues. This
concern was further manifest on July 20 when Thompson
included among the several reasons given to Kraus for not
referring Kraus at that time that Kraus did not pay his dues
half the time and collecting from him was a difficult process.
And further, Thompson told Cody and Menebroker separately
within 2 weeks thereafter that Kraus did not pay his dues. And
as to Kraus' alleged failure to do picket duty, Respondent's
concern was made manifest by Thompson's telling Kraus
during the above conversation with him on July 20 that one of
the reasons for not referring him was that he did not pull his
picket duty during the recent strike at Associated, and by the
question as to whether he had done his picket duty, which was
posed to him during the executive committee meeting of the
Union on July 29.
On the matter of dues, it is not disputed that Kraus had not
paid any penmt fees after returning to work at Benicia in May.
However, it is also noteworthy that the refusal to dispatch
Kraus on July 10, and again on July 20, occurred at a time
when the 1963 union-security contract had expired and no
new agreement had been executed. Thus, the union-security
provisions of the 1963 contract were no longer operative on
the critical dates in July and there was no justification for the
imposition by Respondent of union security requirements .23
Moreover, Kraus was not delinquent in any contractual union
security obligation on May 30, 1967, when the 1963 contract
expired. This is so because Kraus had quit his employment
with Associated on April 27, and was rehired as a new
employee on May 12, with the consequence that he had been
employed for less than 30 days on May 30.24 Furthermore,
even assuming that Kraus was delinquent in dues or permit fees
when the 1963 contract expired on May 30, 1967, Respondent
would not have been privileged to refuse to dispatch him
because of such delinquency. While it is true that the next
contract, which was executed on August 15, was made
Neither is the above finding undercut by Thompson's remark to
Sabo about the time the charge was filed herein that Associated could
do what it pleased about Kraus, that Kraus was a lost cause . As I have
heretofore found, Sabo properly viewed this remark as being ambiguous
and as not warranting Associated to proceed to employ Kraus without
clearance by Respondent
22According to credible testimony of Kraus, an inquiry about
whether he had done his picket duty was made during his attendance at
Respondent's executive committee meeting on July 29. He could not,
however , identify the union member who asked the question.
23See Bethlehem Steel Co. (Shipbuilding Division ), 136 NLRB
1500 , 1502, enfd . 320 F.2d 615 (C.A. 3), cert. denied 375 U.S. 984.
24 Kraus was entitled under the Act to 30 days of grace as a new
employee.
INTERNATIONAL LONGSHOREMEN 'S UNION LOCAL 17
retroactive to June 1, it is also true that the union secunty
provision of the new contract could not, because of the hiatus
before the second union security contract was executed, be
applied retroactively.25 It follows, therefore, that Respondent
could not, because of a dues delinquency arising before the
expiration of the first mentioned contract on May 30, 1967,
lawfully preclude Kraus' employment during the hiatus period
or after the new contract was executed.
On the matter of Kraus' picketing in connection with the
strike by Respondent at Associated during part of June and
part of July, Kraus testified that he did engage in such
picketing. However, assuming without deciding that he did not
engage in such picketing, it is clear that a union imposes a
discriminatory condition of employment in contravention of
the Act when it refuses to refer an employee under an
exclusive clearance arrangement because he has refused to
participate in that union's picketing of an employer. 26
In sum, therefore, I find, under all the circumstances and on
the entire record, that Respondent refused on July 10 and on
July 20 to clear Kraus for work at Associated under their
applicable exclusive hiring arrangement, at least in part because
of union considerations deriving from its belief that Kraus had
not paid accrued union permit fees or dues and had not
engaged in picketing conducted by Respondent against
Associated. And I find further that Respondent thereby
caused, or attempted to cause, Associated not to employ Kraus
in violation of Section 8(a)(3) of the Act, and hence violated
Section 8(b)(2) and (1)(A) of the Act.' 7
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning
of the Act.
2. Associated is an employer engaged in commerce within
the meaning of the Act.
3. By causing, or attempting to cause, Associated, in
violation of Section 8(a)(3) of the Act, to deny employment
to Kraus because it had, for union considerations, not cleared
Kraus for such hire, Respondent engaged in unfair labor
practices within the meaning of Section 8(b)(2) of the Act.
4. By the foregoing conduct, Respondent also restrained
and coerced employees in the exercise of their rights
guaranteed in Section 7 of the Act, in violation of Section
8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I will recommend that it cease and desist
25See Bethlehem Steel Co, supra. This situation is to be contrasted
with the one in which two successive union security contracts are
executed without hiatus , see, for example, National Lead Co., Titanium
Division , 106 NLRB 545, 548.
26 See N.L.R.B v. Local 450, International Union of Operating
Engineers, AFL-CIO, (Tellepsen Construction Co ), 281 F.2d 313 (C.A.
5), enfg. as modified 122 NLRB 564.
27 See Twin City Roofing, a Division of Harlan E. Moore & Co.,
supra, Lummus Company v. NL.R.B., 339 F.2d 728 (C.A.D.C.), enfg.
in relevant part 142 NLRB 517.
603
therefrom and take certain affirmative action to effectuate the
policies of the Act. And having found that Respondent caused
Associated not to employ Kraus because it had, for union
considerations, not cleared Kraus for such employment, I shall
further recommend that Respondent notify Associated and
Kraus, in writing, that it has no objection to his employment
by Associated. I will also recommend that Respondent make
Kraus whole for any loss of earnings suffered by reason of the
discrimination against him. Respondent's liability for backpay
shall commence on July 11, when Kraus would otherwise have
been employed by Associated, and shall terminate 5 days after
it notifies Associated and Kraus as aforesaid. Loss of earnings
shall be computed in accordance with the formula approved in
F. W. Woolworth Company, 90 NLRB 289, with interest
computed in the manner set forth in Isis Plumbing & Heating
Co., Inc., 138 NLRB 716.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
Respondent, its officers, representatives, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Causing, or attempting to cause, Associated Metals
Company of California, its officers, agents, successors, or
assigns, in violation of Section 8(a)(3) of the Act, to deny
employment to Stanley G. Kraus, or any other employee or
applicant for employment, because he has, for union consider-
ations, not been cleared by it for such employment.
(b) In any like or related manner restraining or coercing
employees or applicants for employment at Associated Metals
Company of California or any other employer over whom the
Board would assert jurisdiction, in the exercise of their 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 authorized in Section
8(a)(3) of the Act, as amended.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Make Kraus whole for any loss of earnings suffered by
him by reason of the discrimination against him at Associated
Metals Company of California, as set forth in the section of
this Decision entitled "The Remedy."
(b) Notify Associated Metals Company of California, in
writing, that it has no objection to Kraus' employment, with a
copy to Kraus, individually.
(c) Post at its office and meeting halls copies of the
attached notice marked "Appendix.s28 Copies of said notice
to be furnished by the Board's Regional Director for Region
20, after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and maintained by it for 60 consecutive
28In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice. In
the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be
substituted for the words "Pursuant to a Decision and Order."
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that such notices
are not altered; defaced, or covered by any other material.
(d) Additional copies of the Appendix attached hereto
shall be signed by an authorized representative of Respondent
and shall be returned forthwith to the Regional Director of
Region 20 for posting by Associated Metals Company of
California at their plants in Sacramento and Benicia,
California, where notices to employees are customarily posted.
(e) Notify said Regional Director, in writing , within 20
days from the date of the receipt of this Trial Examiner's
Decision, what steps Respondent has taken to comply
herewrth.2 9
29In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read . "Notify said Regional
Director , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF
International Longshoremen's and Warehousemen's Union
Local 17, International Longshoremen's and Warehousemen's
Union
Pursuant to the Recommended Order 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, Associated
Metals Company of California, or any other employer
engaged in commerce, to deny employment to Stanley G.
Kraus, or to any other employee or applicant for
employment, because he has not, for union considerations,
been cleared by us for such employment.
WE WILL NOT in any like or related manner restrain or
coerce employees, or applicants for employment, of
Associated Metals Company of California, or any other
employer engaged in commerce, in the exercise of their
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 authorized
by Section 8(a)(3) of the Act, as amended.
WE WILL notify Associated Metals Company of
California that we have no objection to the employment of
Stanley G. Kraus.
WE WILL make whole Stanley G. Kraus for any loss of
earnings he may have suffered as a result of the
discrimination against him.
INTERNATIONAL LONGSHOREMEN'S
AND WAREHOUSEMEN'S
UNION LOCAL 17,
INTERNATIONAL LONGSHOREMEN'S
AND WAREHOUSEMEN'S
UNION
(Labor Organization)
Dated By
(Representative ) (Title)
This Notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If members have any question concerning this Notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 13050 Federal
Building, 450 Golden Gate Ave., Box 36047, San Francisco,
California, Telephone 556-0335.