Local 1367, Int'l Longshoremen's Assn., AFL-CIO

National Labor Relations Board - Board Decisions

Mar 19, 1965

151 N.L.R.B. 810 (N.L.R.B. 1965)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
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 Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in United Automobile, Aerospace and
Agriculture Implement Workers of America, AFL-CIO, or in any other labor
organization of our employees, by discriminating in regard to hire, tenure of
employment, or any term or condition of employment of any of our employees.
WE WILL offer to Philip Graham, Junior H. Houston, and John H. Fullwood,
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights previously enjoyed,
and make them whole for any loss of pay suffered as a result of the discrimina-
tion against them.
WE WILL NOT interrogate our employees concerning their union activities in
a manner constituting interference, restraint, or coercion in violation of Section
8(a)(1) of the Act.
WE WILL NOT threaten our employees with loss of employment, removal of
the plant, or other reprisal if they engage in union activities.
WE WILL NOT induce or ask our employees to observe and/or report to us con-
cerning their union activities or meetings.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to join or assist the
aforesaid union or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
FRANKLIN BRASS PRODUCTS,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-In the event the above-named employees are presently serving in the
Armed Forces of the United States, we will notify them of their right to full rein-
statement upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended, after discharge
from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone
No. 723-2911, if they have any question concerning this notice or compliance with
its provisions.
Local 1367, International Longshoremen's Association, AFL-CIO
and Vidal Garcia and Galveston Maritime Association, Inc.;
Houston Maritime Association, Inc.; Master Stevedores Asso-
ciation of Texas, Parties to the Contract. Case No. 23-CB-471.
March 19, 1965
DECISION AND ORDER
On May 15, 1964, Trial Examiner Eugene E. Dixon issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
151 NLRB No. 85.
LOCAL 1367, INT'L LONGSHOREMEN'S ASSN., AFL--CIO 811
Decision. Thereafter, Respondent and the General Counsel filed
exceptions to the Trial Examiner's Decision and supporting briefs.
The National Labor Relations 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, the
briefs, and the entire record in this case, and hereby adopts the Trial
Examiner's findings, conclusions, and recommendations 1 with the
following modification.2
In the remedy section of his decision, the Trial Examiner, citing
Houston Maritimnw Association, Inc., et al.,3 recommended that Re-
spondent reimburse all nonunion stevedores for the percentage of
their wages paid to Respondent since September 27, 1962 (a date 6
months prior to the filing of the charges), for referrals through the
union-operated hiring hall. Since the Trial Examiner rendered his
decision, the Court of Appeals for the Fifth Circuit has refused to
enforce the similar reimbursement order in Houston Maritime,4
although adopting the Board's finding that the hiring hall had been
operated so as to discriminate against nonunion men. The court
said : 5
... the reimbursement order bears no rational relation to the
correction of the discrimination. Indeed, the nonunion men who
have the largest earnings and have been discriminated against
least would get the largest refunds, while those not employed at
all and discriminated against the most would get no refund
whatever. The less the discrimination against an individual, the
more he would receive in refunds. In these circumstances, reim-
bursing all nonunion employees for all percentages exacted is
not "a reasonable attempt to put aright matters the unfair labor
practice set awry." The order of reimbursement . . . would
1 The Trial Examiner inadvertently failed to provide in the remedy section of his
decision for Respondent to make Harley Eugene Stukes and Vidal Garcia whole for any
loss in pay they may have suffered as the result of the discrimination against them, in
accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co ., 138 NLRB 716. The decision is corrected accordingly.
2 No exceptions were filed to the Trial Examiner ' s finding that the standards devised
by Respondent for its new hiring hall operation were permissible under the National
Labor Relations Act, as amended , Section 102 .46(h) of the Board's Rules and Regulations,
Series 8, as amended , states: "No matter not included in exceptions or cross -exceptions
may thereafter be urged before the Board , or in any further proceeding " In view of
the absence of exceptions , and in accordance with our usual practice , we adopt pro forma
the Trial Examiner's finding as to the lawfulness of the standards . Contrary to the
dissenting opinion , we believe that it would be improper , after adopting the finding of
legality , to treat it as a nullity for remedy purposes , and to formulate a remedy on the
assumption , contrary to the finding , that the standards were in fact unlawful.
s 136 NLRB 1222 ( Chairman McCulloch dissenting on the dues reimbursement aspect
of the remedy).
4 N.L.R.B. v. Houston Maritime Association, Inc., et al. 337 F. 2d 333 (CA. 5).
5 Id. at 337 ( footnotes omitted).
812 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
deprive the union of all charges, reasonable or otherwise, for its
referral services to nonunion longshoremen. Such an order is
punitive and not remedial or reasonably designed to effectuate
the purposes of the Act.
The Court of Appeals for the Second Circuit in Local 138, Interna-
tional Union of Operating Engineers, et al. v. N.L.R.B.,6 also refused
to enforce an order directing reimbursement of all dues paid by non-
union men for referral through a union hiring hall operated in a
discriminatory manner. The Board has reexamined its position in
the light of the foregoing court decisions, and has decided to
acquiesce therein. Accordingly, we do not adopt the Trial Exami-
ner's recommendation for the reimbursement of fees paid by non-
union men for obtaining employment through the hiring hall.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders
that Respondent Local 1367, International Longshoremen's Associa-
tion, AFL-CIO, its officers, agents, and representatives, shall take
the action set forth in the Trial Examiner's Recommended Order,
with the following modifications :
1. Delete paragraphs 1(c) and 2(c) of the Trial Examiner's
Order, and reletter the subsequent paragraphs thereof.
2. Delete the third and seventh indented paragraphs in the notice
(Appendix) appended to the Trial Examiner's Decision.
MEMBER JENKINS, dissenting in part:
I agree with my colleagues that the August 1963 seniority stand-
ards adopted by Respondent were applied in such a disparate manner
between the union and nonunion stevedores as to have discriminated
against the nonunion stevedores in violation of Section 8(b) (1) (A)
and (2) of the Act. Unlike my colleagues, however, and in order
effectively to remedy these violations we have found, I would also
hold the August 1963 seniority standards themselves inherently
discriminatory and therefore unlawful.?
6 321 F 2d 130 (C.A. 2).
7 Concededly , as my colleagues state, no exceptions were taken to the Trial Examiner's
conclusion that the August 1963 standards were permissible under the Act How-
ever, as it is the responsibility of the Board , on the record as a whole, to fashion a
remedy which will expunge the effect of unfair labor practices found ( ef Lundy Manu-
facturing Corporation, 136 NLRB 1230 ), the absence of an exception to the legal con-
clusion of the Examiner should not prevent the Board from properly discharging that
responsibility . This is particularly true, where , as here , the record as a whole estab-
lishes that conclusion to be erroneous . To say otherwise is to hold that the Board may
find a wrong but is powerless to correct it Indeed . In the circumstances of this case,
the failure of the Board to fashion a proper remedy actually perpetuates the wrong
which the Board finds to exist
LOCAL 1367, INT'L LONGSHOREMEN'S ASSN., AFL-CIO 813
The record facts as fully set forth by the Trial Examiner clearly
reveal that before August 23, 1963, the Respondent operated a
patently discriminatory hiring hall in that union members alone were
glven employment preference over nonmembers, and that this prefer-
ence curtailed nonmembers' opportunities to obtain work assign-
ments. Moreover, during the busy season when nonmembers were
assigned work,8 it appears that because of the discriminatory opera-
tion of the hiring hall such nonmembers were the last to be assigned
"snap" jobs.
Under the seniority plan of August 23, all jobs were to be assigned
to those longshoremen maintaining a legal residence in Cameron
County, Texas, solely on the basis of length of service in loading and
discharging certain types of cargo and without regard to union
membership. However, it appears in the record and the Respondent
admits that in determining length of service for the new seniority
plan, the Respondent credited only that service longshoremen
acquired by working through its hiring hall. Thus, the Respondent's
questionnaire to all longshoremen called for the date when the appli-
cant first commenced working regularly out of the Respondent's
hiring hall. Moreover, when some of the nonmembers merely listed
the first time they worked as longshoremen, according to Respond-
ent's President McCable, the nonmembers were told that the Union
was interested only in the date that a man began working regularly
out of the Respondent's hiring hall. Thereafter, nonmembers Garcia
and Stokes, but especially Stukes, were asked to supply work records
showing they had worked out of Respondent's Local at the time
claimed on their questionnaires, and upon their failure to supply
such records, their claims of service dating from 1946 and 1949,
respectively, were disallowed.9 Furthermore, the Respondent admits
that the August 23 seniority system required that for an "A" classifi-
cation "it was necessary that a man had at least 12 years work
through Respondent Local 1367, and that he be a resident of Cameron
County, Texas." It is also admitted by the Respondent that the
latter requirement likewise applied to seniority classifications "B,"
"C." and "D" under the new standards.
From the foregoing facts appearing in the record and from the
Respondent's admissions it is clear that the August 1963 seniority
standards, grounded as they are on length of service worked through
a discriminatory hiring hall, are also patently discriminatory. But
notwithstanding this fact, my colleagues, to remedy the violations
found, have actually ordered that the Respondent use this August
8 During the slack season it appears that nonmembers were seldom selected or as-
signed to any stevedore work.
9 Because of this disallowance , both Garcia and Stukes were not assigned to an "A"
classification , but to the less desirable "B" classification
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1963 seniority system with its built-in discrimination when reclassify-
ing stevedores. This, in my view, is not a "remedy"; it is a direction
that the Respondent continue to give effect to its unlawful hiring-
hall practices.
For the foregoing reasons, I would direct that the Respondent not
only cease using the seniority classifications based on the August 1963
standards, but that it abandon these standards, too.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act, was heard before Trial Exam-
iner Eugene E. Dixon at Brownsville, Texas, on September 10 to 12, 1963, pursuant
to due notice with the General Counsel and Respondent represented by counsel. The
complaint (as amended at the hearing and based on charges filed March 27 and
September 3, 1963), was issued by the Regional Director for Region 23 on behalf
of the General Counsel of the National Labor Relations Board (herein called the
General Counsel and the Board) and alleged that Respondent had engaged in unfair
labor practices proscribed by Section 8(b) (1) (A) and (2) of the Act.
The substance of the complaint (which is dated August 1, 1963) is that Respond-
ent maintained and is maintaining an illegal hiring hall and caused and attempted
to cause certain named employers to accord preference in employment to union
members over nonmembers and caused and attempted to cause said employers to
discriminate against Vidal Garcia and Harley Eugene Strikes in regaid to the hire,
tenure, and terms of their employment in violation of Section 8(a)(3) of the Act
thereby encouraging membership in the Union, and by said acts restraining and
coercing employees in the exeicise of the rights guaranteed in Section 7 of the Act,
and violating Section 8(b) (1) (A) and (2) of the Act.
In its duly filed answer Respondent denied the commission of any unfair labor
practices.
After the hearing was closed I received a written stipulation, which I make a part
of the record, as follows:
1. Certain corrections of the record which I hereby allow;
II. A copy of the constitution of Local 1367, International Longshoremen's Asso-
ciation, the social security record of Vidal Garcia; the affidavits of Frank Parker,
Frank Lallier, Sr., J. E. Eidman, G. D Massey, Frank Beene, J. H. Picer, V. L.
McCabe, and E. N. Parson, H. J. White, E. J. Farrar, E. N. Parson, F. Beene, E. T.
Catchtik, H L. Parson, J H Picer, G. F. Taylor, and Pete Walker;
III. The work record of Longshoremen presumably in the port of Brownsville
from October 1, 1961, to September 30, 1962.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE EMPLOYERS
The following companies, among others, are owners, operators, and/or agents of
deep sea vessels arriving at various ports in Texas including the port of Brownsville
and are members or associate members of either the Galveston Maritime Association,
Inc., Houston Maritime Association, Inc., or the Master Stevedores Association of
Texas: Port of Brownsville Stevedoring Company, Border Stevedoring, Lykes Bros,
Steamship Co., Inc.; Lallier and Company; Bix Shipping Company; and Plitt and
Company.
The above associations are and have been at all times material herein, corpora-
tions duly organized under and existing by virtue of the laws of the State of Texas.
Galveston Maritime Association has its principal office and place of business in the
Cotton Exchange Building, Galveston, Texas; Houston Maritime Association, Inc.,
and Master Stevedores Association of Texas have their principal office and place of
business in Houston, Texas. These associations at all times material herein have
been associations of employers engaged in the loading and discharging of vessels in
the ports of Texas, including Brownsville, Texas. They exist for the purpose, inte?
LOCAL 1367, INT'L LONGSHOREMEN'S ASSN., AFL-CIO 815
alia, of negotiating and administering collective-bargaining agreements made for and
on behalf of the employer-members, with various labor organizations, including
Respondent, and at all times material were operating under the terms of a collective-
bargaining agreement with the Respondent labor organization.
During the 12 months before the issuance of the complaint, the employer-members
of the above associations in the course and conduct of their business operations fur-
nished in the aggregate stevedoring services to steamship companies operating vessels
in interstate and foreign commerce valued in excess of $500,000. Strachan Shipping
Company, an employer-member of the three associations named above, during the
12 months preceding the issuance of the complaint furnished stevedoring services to
steamship companies operating vessels in interstate and foreign commerce valued in
excess of $100,000.
The employers are and at all times material herein have been engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Local 1367, International Longshoremen's Association, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Brownsville, Texas, is not on the Gulf of Mexico but is a port by virtue of a
channel that was opened to the gulf in 1936. It has operated as a port continuously
since that time with the exception of the war years from 1941 through 1945 when
no commercial shipping took place. Much of the cargo handled in the port of
Brownsville is oil which involves relatively little labor. Of the dry cargo, cotton is
the largest single commodity handled and represents from 30 to 50 percent of the
dry cargo business of the port This dry cargo 1 is covered by a collective-bargaining
agreement known as the Deep Sea Longshore and Cotton Agreement between certain
locals of the ILA (including Respondent Local) and certain employer associations
which include the various Brownsville stevedoring firms
Pursuant to this agreement, all deep-sea hiring in Brownsville is done through an
exclusive hiring hall operated by Respondent and all stevedores hired out of the hall
(both union and nonunion) pay the Union 5 percent of their earnings as a service
charge for the operation of the hall. Also pursuant to this agreement welfare, vaca-
tion, and pension funds have been established, financed by the employers' contribu-
tions and administered by a board of trustees selected by the employers and the
Union. Seven hundred hours of work a year is required for eligibility to minimum
fund benefits which increase for employees working 1,200 hours or over. In addi-
tion to the dry cargo, there is a large volume of bananas handled at the port of
Brownsville. This latter work (together with pineapples and coconuts) does not
come under the jurisdiction of Respondent Local but is handled by another local
known as the Banana Local. The banana work is not as desirable nor as remunera-
tive as is the dry cargo or deep-sea work.
B. The issues
The main issue in this case is concerned with the legality of Respondent's hiring
hall. Examination of the operation of the hall involves two periods of time The
first is prior to August 23, 1963, and the second is after that date. On August 23,
1963, the Respondent for the first time began operating a hiring hall using a classi-
fication system that on its face is based on seniority in the longshore industry in
Brownsville without regard to union memberships. Prior to August 23, 1963, it is
clear that union members were given preference over nonmembers in work assign-
ments out of the hall and that (as admitted by Respondent) the then operation of
the hall illegally discriminated against nonmembers and thus violated Section 8(b)
(1) (A) and (2) of the Act.
C. The "swapout system"
In order to understand the operation of the hall both before and after the key date
it is necessary to understand the "swapout" system around which it revolves. That
1 The handling of this type of cargo is known as deep-sea work.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
system operates in the following manner. 2 The Union maintains 15 permanent
gangs made up of 5 men each which includes a foreman. The foremen are desig-
nated by the employers from a list of men submitted by the Union When an
employer calls on the hall for longshoremen the gang having the lowest amount of
earnings is the first one sent out. Assuming gang No. 1 has the lowest amount of
earnings and is "first out," gang No. 2 then is the "first swap out" of gang No. 1,
gang No. 3 is the "second swap out" and gang No. 4 is the "third swap out." If gang
No. I is the first out its foreman first hires the permanent members of his gang.
Needing more men (the usual unloading job requires approximately 15 or 16 men)
he will pick up the available members of his first swapout. Next hired by him would
be those available members from his second swapout. And next hired would be
those members from his third swapout gang who were present and available. The
first men hired are always given the key or "snap" positions and when there are no
more snap positions available (they number about a half a dozen on the usual job)
the jobs in the "hold" are filled. The snap jobs are the easiest to perform and are
the most desirable.
The net result of the foregoing was that until the available permanent gang mem-
bers were taken up, no one else was hired even though available. As indicated,
before August 23, 1963, this means that union members (being that only ones on the
permanent gangs) were given preference over nonmembers or outsiders. During
that slack season, particularly, this preference curtailed the outsider's chances to get
work or to get snap jobs in comparison to the union members.
D. The new seniority plan
Just a few weeks prior to the hearing herein, and after the complaint had been
issued, Respondent inaugurated a classification system for all longshoremen (union
and nonunion) hiring out of the hall. As indicated, this system is purportedly based
upon seniority in the industry in the Brownsville area. The pertinent parts of the
seniority rules under which Respondent established its new classification system read
as follows:
All work assigned out of Local 1367 shall be on seniority basis as hereinafter
more fully set out. In order to equitably set up the seniority system to be fair
to all those engaged in the work of loading and discharging cargo on deep sea
vessels and barges, exclusive of cargos of bananas, pineapples and coconuts, in
Cameron County, Texas, the following has been adopted as the fair and equita-
ble manner in assigning work.
There shall be four seniority classes as follows- Class A, Class B, Class C,
and Class D. The work assigned shall be strictly in accordance with the senior-
ity rules hereinafter set out.
Rule 1: All longshoremen who have been engaged in the work of loading
and discharging cargo on deep sea vessels and barges, exclusive of cargos of
bananas, pineapples, and coconuts in Cameron County, Texas, for at least the
past 12 years shall be in Class A, provided they shall maintain their legal resi-
dence in Cameron County, Texas All those in Class A shall have seniority
over all the men who shall be assigned to work through Local 1367.
. All walking foremen and gang foremen must be in Class A. The long-
shoremen in Class A working out of Local 1367 shall not exceed the number
75 men, except that, in creating the plan, in order not to discriminate against
those who can presently classify for Class A, the number may exceed 75 men.
Therefore, there shall be no moveups from Class B to Class A until the number
in Class A shall be decreased to 74 men or less.
Rule 2. All longshoremen who have been engaged in the work of loading
and discharging cargo on deep sea vessels and barges, exclusive of cargos of
bananas, pineapples and coconuts, in Cameron County, Texas, for at least the
past 6 years shall be Class B provided they shall maintain their legal residence
in Cameron County, Texas All those in Class B shall have seniority over all
men below Class A who shall be assigned to work through Local 1367.
Subject to the limitations provided in Rule 1, whenever a longshoreman
in Class A permanently leaves the craft, dies, or is otherwise no longer in
Class A, then a longshoreman from Class B who has the highest seniority in
2 There is no difference in the operation of the swapout system before or after August 23,
1963. However, there is a difference, as will appear, in the composition of the perma-
nent gangs from which the swapont system draws its men Prior to August 23 the
permanent gangs were made up of union members exclusively ; thereafter nine nonmem-
bers were Included with the members In the composition of the permanent gangs.
LOCAL 1367 , INT'L LONGSHOREMEN'S ASSN., AFL-CIO 817
years but not less than 12 years, as well as the largest number of hours worked
as a longshoreman as herein defined for the preceding 2 years shall be moved
to Class A.
The longshoremen in Class B working out of Local 1367 shall not exceed the
number of 75 men.
Rule 3: All longshoremen who have been engaged in the work of loading
and discharging cargo on deep sea vessels and barges, exclusive of cargos of
bananas, pineapples and coconuts in Cameron County, Texas, for at least the
past 2 years shall be Class C provided they shall maintain their legal residence
in Cameron County, Texas. All those in Class C shall have seniority over all
men below Class A and B who shall be assigned to work to Local 1367.
In April 1963, after the charge herein had been filed, Respondent started to act to
establish its new rules .3 To this end Respondent (through the seniority committee
it had established) distributed ouestionnaires to all longshoremen, union and non-
union, to be filled out stating the year that the applicants first started working regu-
larly out of Respondent's hiring hall. On April 25, after the information had been
turned in, the Union called in for discussion all of the nonunion people 4 who were
claiming starting dates that would put them in class A. According to the testimony
of President McCabe, "a great many of them had not understood the wording of the
form which asked for the first year worked regularly through 1367 and simply put
down the first time that they had ever worked there." Some "thought they should
get credit for years previous to ... 1952." Some had done some deep-sea work prior
to that date especially in 1946 and 1947 "but were principally concerned with bananas
and were members of the banana local ...." It was explained to these people that
the date the Union was interested in was the date that a man began working regu-
larly out of Local 1367; that bananas or warehouse work did not count and that the
Union "did not feel that a man that worked part time should be given credit for
regularity " With this explanation, a majority of the people changed the dates they
had originally claimed to have first worked out of the hiring hall.
On August 13, 1963, the Union published the classification groupings that had
been determined by its seniority committee. Notwithstanding that all of the then
union members were put in class A as of August 13, none of them were interviewed
or asked to verify their claimed starting dates.5 President McCabe testified that this
was so because the dates that they joined the Union provided sufficient proof that
their regular employment out of the hall had begun in 1951 or earlier. In this con-
nection the evidence shows that at least five of the union members who had been
placed in the A classification had been taken into the Union either in late 1951 or
early 1952. Thus, Guadelupe Silguaro testified that he joined the Union in 1952
and J. W. Townsend, C. W. Russell, W. H Christoferson, and Billy Ticer all joined
about the same time.6 This was confirmed at least as to Russell who testified that
he joined either in late 1951 or early 1952. At the time he joined, his brother-in-law,
Homer White, was business agent of the Union. On his classification form Silguaro
had claimed a starting date of 1947; Russell claimed to have started in July of 1951;
Christoferson, 1949; Ticer, 1950; Townsend, 1950. None of these were asked to
verify or support their claims.
The evidence shows that several of the union members who were placed in
group A on August 13 had breaks of varying durations in their work records out of
Local 1367 since 1951. Thus C. C. Allison was not engaged in waterfront work
from May 1953 to June 1957 during which time he was maintenance foreman for a
governmental water district. Frank Beene did line-running work (which involves
the mooring and unmooring of ships and has nothing to do with Local 1367) from
September 1955 to sometime in 1958. Emile Kachatic was engaged in the same
business from 1951 to 1955. In addition to these, Charging Party Garcia testified
without denial as to several others who were absent at various times and engaged in
The record shows, however , that on March 20, 1962 ( long prior to the charge), the
Union had appointed a committee to "investigate the possibility of a seniority plan and
to present their findings to the membership with recommendations." Named on
the committee were V. L McCabe, the union president, Frank Beene, the business
agent, L. J. Windhouse, C. C. Allison, G. Silguaro, and W. H. Christoferson.
* About 48 were called in on this occasion.
e All the union men, however, did fill out and file the same classification question-
naire that the nonunion men filed.
8 These men were automatically placed on permanent stevedoring gangs and became
eligible for the swapout system when they became members of the Union
783-133-66-vol. 151-53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other pursuits.7 All of these had joined the Union before 1951 and their regular
employment through the Union dated at least from then.
In his brief, the General Counsel asserts that he has also proved that certain of the
nonunion stevedores who were placed in group B started working on the waterfront
through Local 1367 prior to many of the union members who were classified in the
A group. In this he relies on the testimony of President McCabe But a careful
reading of McCabe's testimony shows that the starting dates of Augustin Cisneros,
Telesforda Loya, and others named to him by the General Counsel about which he
testified were merely the dates that they had claimed on their questionnaires to have
started working out of the Union.
In his further testimony McCabe explained that the reason the Union had decided
to go back to 1951 as the qualifying date for group A seniority was because it had
been having "some trouble with the colored local" 8 which had started working on
the ships in 1950 and that its purpose was to forestall any claim that Respondent was
trying to "exclude them or their local from having an equal chance with seniority."
McCabe also testified that had the Union gone back any more than 12 years to
establish seniority it would have precluded union member C. W. Russell from the
A group thus requiring his removal as a foreman and a permanent gang member.
This the Union did not "especially" want. Accordingly, in part to avoid such a
result, the 12-year seniority period was adopted for group A .9
E. The discrimination against Garcia and Stukes
Of the nonunion longshoremen who were called in by the Union and asked to
verify their claimed starting dates only Harley Eugene Stukes and Vidal Garcia testi-
fied. The circumstances of Stukes' filing for the new seniority system, based on his
undenied and credited testimony is as follows.
In filling out his classification questionnaire, he had originally claimed 1949 as
his starting year. When he was called in by the committee with the others he was
asked if he had proof that he had worked out of the hall in 1949.10 He said that his
only proof would be his old work number. He was told that this was not proof
enough and that his records did not show any earnings by him in 1949. He was fur-
ther told that the union records showed 11 that he started working in 1951, and was
asked if he would change his claimed starting date to 1951. This he did. At this
time he also signed a paper which apparently authorized the Union to check his earn-
ings record with the Social Security Board.
A month or so later he was called in a second time. At this time he was asked if
he had any records to show that he had worked out of the Local in 1951. He said that
he did not but that he had assumed they would get his records from the Social Secu-
rity Board. To this they replied that his records showed that he had no earnings in
the first part of 1951. They then asked him if he wanted to change his claimed start-
ing date to 1952. When he voiced some indecision they said that they wanted to
"get the classification over with," and that if he changed his date to 1952 he could
go back to 1951 if he came up with evidence to substantiate that date. So for a
second time he complied with their request and changed his claimed starting date
now to 1952 from 1951. As a result, Stukes received a B classification rating.
7 He named Wilkinson , Manual Trujillo , R. Trujillo, R . Gomez , and Kirby Kalborne.
Another one, Deane White, was also named in the testimony of Manuel Gonzales
BID a matter that was heard in July 1963, Trial Examiner Thomas N Kessel issued
a Decision ( Local 1367 , International Longshoremen 's Association , AFL-CIO ( Galveston
Maritime Association, Inc., et al. ), 148 NLRB 897 ), involving charges of discrimination
by Local 1368 ( an all-colored organization) against Local 1367 ( an all -white organiza-
tion ). From Mr. Kessel's Decision it appears that although both locals were chartered in
1934, the colored local was unsuccessful in getting any of the waterfront work until
August of 1950.
9 The pertinent testimony upon which I make this finding is as follows
Q. All right So the figure 12 was used for that purpose
A. It was used with the idea that we did not want to get tangled up with the
other local.
Q. And because you did not want to put C W. Russell in class B
A. We did not necessarily want to put him in, no
10 Received in evidence was an Internal Revenue tax withholding form for Stukes
dated July 30, 1949 , which was stamped with the name Lallier & Company , P 0 Box 471,
Brownsville , Texas.
"According to McCabe ' s testimony although the Union gets copies of the timesbeets
and payroll sheets from the employers such records in the Union 's possession go back
only to 1954.
LOCAL 1367, INT'L LONGSHOREMEN'S ASSN., AFL-CIO 819
Stukes' social security records show that he earned $1,096.46 in the 3rd quarter
of 1951 and $817.08 the 4th quarter-all through Brownsville stevedoring firms. No
earnings for the first half of the year (the slack season) were shown, nor were any
earnings shown for any previous years. Stukes testified credibly that after the rush
season of 1951 he tried to get work through the hall several times but that work was
"pretty slack at the time" and that union members were being hired when there was
work. Accordingly, since he "couldn't make a living out there [he] peddled a little
vegetables and fruit and done odd jobs." The social security records show that he
again worked on the waterfront in the rush season of 1952. The record is not clear
as to exactly what he did in 1953 and 1954. However, he testified credibly that he
worked out the hall from 1955 through 1959.
According to Garcia's testimony, the circumstances of his dealings with the
seniority committee were as follows:
On his classification questionnaire he had claimed 1946 as his starting date. In
his interview with the committee he was told that the Union had no records on him
before 1950, and that his record showed that he had worked out of the Local in 1953,
and that he possibly had some employment in 1952. He was then told that the
Union would accept 1952, as his starting date and asked if he would change his
application accordingly. He refused.
Garcia was called before the union committee a second time about the matter
about a month later. A discussion of what would be necessaiy to verify a claimed
starting date apparently took place at that time with Garcia asking to see the union
card of Clarence Allison, one of the committee members who had had a break in
his waterfront employment from 1953 to 1957. The committee refused his request
but countered with an inquiry that if it showed Garcia affidavits by union members
(presumably regarding the date of Allison's start on the docks through Local 1367)
could he reciprocate similarly? Garcia's reply was, "No I won't show you nothing.
I don't have to show you nothing, and I won't show you nothing."
When the classification lists were published on August 13,12 Garcia learned that he
had been placed in the B category.
According to Garcia's further testimony on cross-examination, he got out of the
service in mid 1946, and worked on the waterfront either the latter part of that year
or in 1947. At this time he had only 8 or 10 jobs. He testified that he did not know
whether any of this work was warehouse work as distinguished from deep-sea work.
He also admitted that during this period he did some banana work and that at this
time there was a great deal more banana work available than deep-sea work.13 In
1948 he started a fruit and vegetable stand at the City Market and continued in this
endeavor until 1954 or 1955, when he went back to longshoring.
Social secourity records show the following earnings by Garcia in 1946 and 1947
through Brownsville employers: 14
Quarter
Employer: Earnings ending
J. E. Eidman--------------------------------- $25.02 9-30-46
30.08 12-31-46
Border Stevedoring Co------------------------- 21.61 12-31-46
Do------------------------------------ 48.72 3-31-47
21.01 6-30-47
88.36 9-30-47
Lallier & Co---------------------------------- 32.55 3-31-47
141.03 6-30-47
126.49 9-30-47
J. E. Eidman--------------------------------- 67.12 6-30-47
50. 78
McCarthy & Massey Shipping Co---------------- 32. 73
58.84
Coastal Barge & Fuel Co----------------------- 5. 85
Cunningham Const. Co------------------------ 17.00
9-30-47
6-30-47
9-30-47
9-30-47
6-30-47
13 The B, C, and D lists were posted in the hiring hall on August 13 The A list was
not posted with the others but was posted in the office where, according to the testimony
of President McCabe it would have been seen by anyone who wished to see it.
11 In this connection , the undenied and credited testimony of Frank Beene showed
that a total of 28 deep-sea vessels came into the port of Brownsville in 1946 and that 105
came in in 1947. During each of those 2 years more than 377 banana boats came in to
Brownsville.
14 This information was obtained by the General Counsel after the hearing had closed
and was received by way of stipulation as is indicated in the Statement of the Case, supra
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are no earnings shown in the social security report for the years 1948
through 1952. However, a summary of Garcia's earnings thereafter appears as
follows: 15
1953 through 1959 ___
1960 ---------------
1961 ---------------
$24,355.50 1962 $3,545.47
3,935.80 1963 through March 103. 57
3,858.84
While not all of the foregoing money was earned each year through Local 1367, a
substantial portion of it apparently was.
As the Respondent shows in its brief, since J. E. Eidman had no longshore work
other than bananas in 1946, only $21.61 of Garcia's earnings of that year might have
come from dry cargo work. But even then the chances of such were no better than
one in three since Border Stevedoring (through which Garcia earned the $21.61) did
warehouse work and banana work as well as dry cargo work. Furthermore, the
probabilities are diluted considerably more when it is considered that only 28 dry
cargo vessels were handled at Brownsville in 1946 as compared to 377 banana boats.
As for Garcia's 1947 earnings, the evidence shows that neither Cunningham Con-
struction Company nor Coastal Barge and Fuel Company did any longshore work
in 1947. Nor did Eidman or McCarthy and Massey handle anything but bananas in
1947. Deducting the amounts earned through these firms leaves $458.14 that Garcia
earned through Border Stevedoring and Lallier & Company in 1947. Both of these
firms, however, were engaged in other functions in addition to deep-sea dry cargo
work 16 on which Garcia might have been employed in 1947. Furthermore, the
evidence shows that only 105 dry cargo vessels came into Brownsville in 1947 as
compared to over 377 banana boats, thus further diminishing the probabilities regard-
ing Garcia's employment through Respondent Local in 1947. In addition to the
foregoing, Respondent points out that Garcia's record shows no earnings at all in the
last quarter of 1947 which, of course, was in the rush season. Thus Respondent asks,
"If, indeed, Garcia, in 1947, had decided to make work through the Union his
`regular' employment and was pursuing that intention with any diligence, why abandon
it at the very time he could have earned the most money, and perhaps have established
himself as a regular worker and have gained some experience?"
There is one other piece of evidence germaine to Garcia's classification. About 2
months before Garcia had filed any charges herein, according to the testimony of
McCabe, the latter had occasion one Saturday night to be at a tavern in Brownsville
and have a few friendly beers with Garcia. In the course of "a general conversa-
tion about [their] work" Garcia told McCabe that in "1946, somewhere in that
neighborhood, that he had gone out to the port and worked some bananas and
warehouse. [McCabe] asked him if he had worked any deep sea. He said no."
In rebuttal Gaicia testified that he told McCabe on this occasion that he had
worked "on the docks and ... out there on ships and on bananas." I credit Garcia.
F. The General Counsel's contentions
The General Counsel contends that by qualifying union members for group A
who since 1951 had breaks of several years in their employment records out of
Local 1367, Respondent did not follow its stated requirement of employment "in the
work loading and discharging cargo on deep sea vessels and barges, exclusive of
bananas, pineapples and coconuts in Cameron County, Texas, for at least the past
twelve years...." This, of course, is obvious.
The General Counsel also contends that since Respondent had been admittedly
operating a discriminatory hiring hall it is permissible to draw the inference that the
actual standard used was adopted in order to place all union members in the highest
classification to perpetuate the unlawful discriminatory practices.
In addition (relying on Miranda Fuel Company, Inc., 140 NLRB 181), the Gen-
eral Counsel contends that the standard actually used by Respondent is unfair and
"invidious because it does not take into account actual years of service nor con-
tinuity," and would permit former union members with even a few months work
on the waterfront to displace nonmembers with years of continuous service.
In the alternative, the General Counsel contends that even if, assuming arguendo,
the standard used was not invidious or unfair, it nevertheless was applied in a dis-
parate manner which vitiates the results reached under it.
15 This information was not sought by Garcia until July 1963 apparently after he
had been called in by the Union the second time
16 Border Stevedoring handled bananas and did warehousing in 1947 and Lallier &
Company did warehousing.
LOCAL 1367, INT'L LONGSHOREMEN'S ASSN., AFL-CIO 821
G. The Respondent's contentions
Respondent characterizes this case "as one in which too many people are attempt-
ing to occupy too few jobs" and observes logically that "in such a situation whatever
yardstick is applied in determining who wins and who loses, someone will inevitably
be unhappy." Respondent points out that "one cannot escape the fact that in the
beginning, 1935 and 1936, there was nothing. Nor can we escape the obvious fact
that the Union and its members were the creators of the longshore trade in Cameron
County. These early pioneers carved out of the wilderness, so to speak, the very
jobs over which we now fight."
In setting up its new hiring system Respondent contends that a seniority plan
could scarcely have been formulated that did not take into account the seasonal
nature and sparsity of the work as well as the rights of "those who struggled from
the earliest times to establish a core of experienced longshoremen" for the port of
Brownsville. While conceding that some people who were not members of the
Union may have "made their contribution to the creation of the longshore trade as
it exists in Cameron County today," the problem was to set up a system as nearly
as possible establishing rights commensurate to the contributions made.17
The Union recognized that for various reasons "(economic necessity, serious
injury, no work available, etc.)" many longshoremen had breaks of varying lengths
of time in their regular employment out of Local 1367. It contends that to classify
these breaks in the order of their merit or justification "would have been an impos-
sible, or at best a tedious and heart-rending task." Some of the questions involved
were "how to evaluate now the degrees of economic compulsions which may have
forced some to temporarily leave their work through the Union9 what weight to be
given those whose break in continuous service resulted from injury while making
this contribution to the cause'? ... what to do about the breaks due to the port being
closed down from 1941 to 1946 when there was no work for anyone? ... should a
break in continuity of work for one who dates his beginning from 1936 have less,
more, or the same weight as a break for one who dates his beginning only to 1946
or 1951?"
Considering these things the Union decided that, by allowing everyone to begin
his seniority at the earliest date he could establish a good-faith effort at regular
employment within the jurisdiction of the Union, most of the difficult questions
could be avoided. The only question along this line which remained was "what to
do with those who had not only a break in their seniority status, but who had
actually abandoned this kind of work as a regular means of earning a livelihood."
The Union recognized that there were some oldtime stevedores, members of the
Union and not, who had abandoned or were considering abandoning work through
the Union as their primary source of earnings. By putting all these people on notice
or attempting to do so it gave them a chance to exercise their seniority privileges
and if they failed to meet the number of hours required to retain their seniority
status they could have no complaints. Furthermore the system was designed so that
"at worst, all of the dead wood would be cleared up by October 1, 1964...."
In setting up this system no matter what cutoff date was chosen someone would
be hurt. Furthermore by creating a class A group too large "would only result in
driving the most experienced and competent people out of the industry because they
could not make a decent living there" and thus leave deep-sea longshore work in
Cameron County to the least experienced and least competent people. With all these
things in mind the ultimate determining factor as to the cutoff date, as testified to by
President McCabe, was the difficulty with the colored local which did not begin
getting deep-sea work in the port until late 1950.
Respondent contends that "since a requirement of the Union for membership was
regular employment at an earlier time and establishment of competence,ls that no
members were interrogated by the seniority committee does not appear to be overly
significant." In any event, Respondent contends, there is no showing that any of
the union members were improperly classified. Nor was there any showing, accord-
14 In this connection the Union claims to have differentiated between the drifter or
"boomer" type of worker to whom "work through the Union . . . was a seasonal op-
portunity to make a fair amount of money in a short time and be on the move again"
and the year -round applicant who would "sweat" the hall during slack times and thus
make a "contribution to the effort of the Union to maintain a basic competent , experienced
group of longshoremen on a year -round basis."
18 In support of this assertion is a provision in the collective -bargaining agreement
stating that there would be available through the hiring hall " a sufficient number of ex-
perienced and efficient longshoremen qualified " to do the work.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to Respondent , that any of the outsiders were improperly classified-including
Garcia and Stukes. As for the Union's decision to "forgive breaks in the continuity
of `regular employment,' whether this approach was wise or unwise, or was the best
of all possible decisions," there is no evidence that it was not applied "evenhandedly"
to both union and nonunion people.
With these things in mind, Respondent contends that neither generally nor spe-
cifically through the two alleged discriminatees, Garcia and Stukes, has the General
Counsel proved that the new system is discriminatory or in any way in violation
of the Act.
H. Conclusions
Considering the record as a whole I am inclined to find, and do find that while the
standard adopted by Respondent for its new hiring hall operation was permissible
under the Act, it was nevertheless applied in such a disparate manner between the
union and nonunion stevedores as to have discriminated against the latter in viola-
tion of the Act.19 This disparity is reflected in (1) the requirement of proof of
claimed starting dates from only the nonunion stevedores, and (2) the differences in
the consideration and disposition of Stukes' claim as compared with those of several
of the union members.2e
While Respondent contends that a certain amount of experience in the industry
was required as a condition precedent to being accepted into union membership,
there is no probative evidence to show exactly what kind or how much experience
was required or if it had to be acquired through Respondent Local or could be
acquired elsewhere. As a result, to accept the unsupported claim of a starting date
prior to 1952 from a union member who acquired his membership in 1952 while
requiring proof of all nonunion stevedores' claims is patently discriminatory.
A comparison of the Stukes-Russell classification actions by the Union show that
both started working out of the Local at approximately the same time and that while
neither had worked out of the Union during the first half of 1951, Stukes was denied
an A rating for that reason but Russell was nevertheless put in class A.
The disparity between the Stukes action and those of some of the union members
is further demonstrated by the Union's forgiveness of breaks in the employment
records of C. C. Allison, Frank Beene, and Emile Kachtic. The nature and duration
of the absences of those three from stevedoring clearly bespeaks of abandonment of
that occupation as a means of livelihood and, at least in the cases of Beene and
Kachtic, a choice which was voluntarily made. Yet the absences of Stukes, forced
upon him as a matter of economic necessity, were given no consideration.
Such disparity in favor of union members clearly involves the type of discrimina-
tion in the establishment of new classification groups which encourages union mem-
bership and is prohibited by Section 8(a)(3) of the Act. Accordingly, I find that by
reason of the arrangement between the Union and the employers for the hiring of
stevedores exclusively through the Union (both before and after August 23, 1963),
the Union caused and attempted to cause discrimination against nonunion stevedores
in violation of Section 8(b) (1) (A) and (2) of the Act.
I also find in accordance with Houston Maritime Association, Inc., etc., 136 NLRB
1222, that by exacting the 5 percent service fee from the nonunion stevedores for
the privilege of participating in a hiring procedure which discriminated against them,
Respondent further violated Section 8(b) (1) (A) and (2) of the Act.
15I do not base the conclusion I reach on the General Counsel 's contention that the
Union did not comply with its published requirement of 12 years' service in the industry
as such for top seniority rating. I think it was permissible for the Union to use some
other standard than its published one so long as it was explained to the applicants and
applied by the Union without discrimination. In my opinion, this latter qualification
the Union failed to meet.
10 In this connection, I am unable to find, as alleged by the General Counsel, that
Garcia's classification by the Union was discriminatory in and of itself separate from
the overall discrimination of which he was a part. It is clear that, unlike the case of
Stukes, the Union had no information as to Garcia's earnings in 1946 and 1947 when
it took the action it did although it had then given Garcia ample opportunity to supply
the information it needed. As to whether the information about Garcia's earnings in
1947 Is sufficient to establish his eligibility for a class A rating I make no finding here
since under the remedy I shall recommend his record will be subject to review with all
the others for the establishment of new classification lists.
LOCAL 1367, INT'L LONGSHOREMEN'S ASSN., AFL-CIO 823
I. The alleged discrimination for filing the charge
As previously noted, Vidal Garcia filed the original charge in this matter on
March 27, 1963. Thereafter, according to his testimony on direct examination,
during most of the month of April and up to May 6 21 (although he "sweated" or
was at the hall every day) he "was unable to catch out" an assignment. On April 5
he filed for unemployment compensation and filed continuously for 13 or 14 weeks.22
In the "past years" he had never filed for more than 3 or 4 consecutive weeks.
On cross-examination Garcia testified that up to April 6, after having complained
to McCabe early in February about "an incident that happened on a ship with
another foreman" regarding a job assignment, he "was treated better" than he had
been in the past on job assignments. He also admitted that he had refused an
assignment on May 1 on the grounds that it lacked the 4-hour guarantee and that
he was gambling for a better job later in the day.
There was no evidence adduced by Respondent to counter the foregoing.
According to the testimony of Manuel A. Gonzales, late in April 1963 he was
given a job by Foreman Massey one day at 1 p in. At this time Massey showed him
his hiring book which indicated that there was an opening for another man. Massey
asked Gonzales why Garcia "wouldn't wear his button." Gonzales replied that he
did not know but that he did know that Garcia was not working. Massey then said
that he would not give Garcia a job; that "he didn't care if he kept making more
trouble than he had been doing already."
In his direct testimony Massey, while admitting having hired Gonzales on April 26
at 1 p.m., denied having had any conversation with Gonzales on that occasion. On
cross-examination he first testified that he did not recall talking to Gonzales that
day, then testified that he "just asked him if he wanted a job. That was all." I
credit Gonzales.
Gonzales also testified about an incident on May 1, 1963, when Garcia asked
Foreman Zeiger for a job and was told by Zeiger that he had to wait for his swap
outs. When Garcia walked away Zeiger told Gonzales, "I already got you."
Gonzales had not asked Zeiger for a job. This testimony was on direct examination.
On cross, Gonzales testified that they both had asked Zeiger for a job and that
Zeiger had told him "Okay, I've got you on the book" and to Garcia he said, "I have
got to wait to see about one of my swapouts ." Zeiger did not testify . I credit
Gonzales. .
While not overwhelming, I believe that the foregoing evidence supports the Gen-
eral Counsel's allegation that Garcia was discriminated against to some extent in
the matter of job assignments because of his having filed charges against the Union.
I so find. By such conduct, Respondent further violated Section 8 (b) (1) (A) and
(2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the Respondent's operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Among the affirmative actions I shall recommend is the refund (with interest at
6 percent per annum) 23 to all nonunion stevedores of the percentages of their wages
paid to the Union since September 27, 1962 (a date 6 months prior to the filing of
the charge). Houston Maritime Association, Inc., etc., 136 NLRB 1222. However,
such refund shall not be made to the nine nonunion stevedores during the time that
zi On May 6 two of the Board employees visited the hall. That night at 7 p.m.
Garcia got an assignment.
as He later testified that after May 6 he was picked up by the foremen "very little."
za Such interest shall apply to all amounts of reimbursement recommended herein.
Local 7 , International Association of Bridge , Structural and Ornamental Iron Workers,
AFL-CIO ( Waghorne-Brawn Company ), 144 NLRB 925.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they have been classified and working out of the A classification into which they
were placed by the Union on August 13, 1963, since it would appear that there was
no discrimination against them in favor of the union members from that date.
I shall also recommend that Respondent, in accordance with and pursuant to the
seniority rules it established on or about August 13, 1963, and reappraise, reexamine
the work records of the stevedores who have worked out of its hiring hall, and
establish new seniority lists which do not discriminate against the nonunion steve-
dores and will comport with the findings and conclusions of this Decision. J. J.
Hagerty, Inc., 139 NLRB 633. I am aware that the court of appeals refused to
enforce a somewhat similar order in the above case. Local 138, International Union
of Operating Engineers et al. (J. J. Hagerty, Inc.) v. N.L.R.B. 321 F. 2d 130 (C.A. 2).
But I am of the opinion that the order I am recommending here is distinguishable
and permissable even under the court's decision.
Since discriminatory action which tends to encourage or discourage a union activ-
ity goes to the very heart of the Act, I shall also recommend that Respondent be
ordered to cease and desist from in any manner infringing upon the rights guar-
anteed employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Galveston Maritime Associates, Inc., Houston Maritime Association, Inc., and
Master Stevedores Association of Texas, and their employer-members, are Employ-
ers within the meaning of Section 2(2) of the Act, and are engaged in commerce
within the meaning of the Act.
2. Local 1367, International Longshoremen's Association, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By causing and attempting to cause the employer-members of the foregoing
associations to discriminate in regard to the hire or tenure or terms of employment
of their employees, thereby encouraging membership in a labor organization,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b) (2) of the Act.
4. By such conduct Respondent has interfered with, restrained, and coerced the
employees of said Employers in the exercise of the rights guaranteed them by the
Act, in violation of Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is hereby ordered that the Respondent, Local
1367, International Longshoremen's Association, AFL-CIO, its officers, representa-
tives, and agents, shall:
1. Cease and desist from:
(a) Maintaining, using, or giving effect in its hiring hall operation to the seniority
classifications established by it and put into effect and operation on August 23, 1963.
(b) Causing or attempting to cause the employer-members of Galveston Maritime
Association, Inc., Houston Maritime Association, Inc, and Master Stevedores Asso-
ciation of Texas, or any other employer, to discriminate against employees including
Harley Eugene Stukes and Vidal Garcia in violation of Section 8(a)(3) of the Act.
(c) Requiring as a condition of employment a payment of a fee or percentage of
wages earned when such exaction is discriminatorily and illegally applied to the
employees.
(d) In any other manner restraining or coercing employees in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Reexamine and reappraise the work records of all stevedores who have worked
through its hiring hall and establish new nondiscriminatory seniority lists in accord-
ance with the seniority rules it established on or about August 13, 1963.
(b) Make whole Harley Eugene Stukes and Vidal Garcia for any loss of earnings
or welfare benefits they may have suffered because of the discrimination against
them.
(c) Reimburse in the manner set forth above all nonunion employees for the
percentages of their wages illegally extracted from them.
LOCAL 1367, INT'L LONGSHOREMEN'S ASSN., AFL-CIO 825
(d) Keep and make available to the Board all records pertaining to the operation
of its hiring hall and the matters herein covered.
(e) Post at its business office and hiring hall in Brownsville, Texas, copies of the
attached notice marked "Appendix." 24 Copies of said notice, to be furnished by
the Regional Director for Region 23, shall, after being duly signed by representatives
of Local 1367, be posted immediately upon receipt thereof and be maintained for
at least 60 consecutive days thereafter. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by any other material. With
the permission of the employer-members of the Associations in question who
employ longshoremen out of Respondent's hiring hall, copies of said notices shall
be posted by the Regional Director at their places of business, where notices or
communications to their employees are customarily posted.
(f) Notify the Regional Director for Region 23, in writing, within 20 days from
the date of this Decision , what steps have been taken to comply herewith.25
%In the event 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 be enforced by
a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words " a Decision
and Order "
ffi In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify the Regional Director for Region 23, in writing , within
10 days from the date of the receipt of this Order , what steps the Respondent has
taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 1367,
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO
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 Rela-
tions Act, we hereby notify you that:
WE WILL NOT, in the operation of our hiring hall, maintain, use, or give effect
to the seniority classification we established and put into effect on August 23,
1963.
WE WILL NOT cause or attempt to cause the employer-members of Galveston
Maritime Association, Inc., Houston Maritime Association, Inc., and Master
Stevedores Association of Texas, or any other employer, to discriminate against
employees, including Harley Eugene Stukes, and Vidal Garcia, in violation of
Section 8 (a) (3) of the Act.
WE WILL NOT require as a condition of employment a payment of a fee or
percentage of wages earned when such extraction is discriminatorily and illegally
applied.
WE WILL NOT in any other manner restrain or coerce employees in the exer-
cise of rights guaranteed by Section 7 of the Act.
WE WILL reexamine and reappraise the work records of all stevedores who
have worked through our hiring hall and establish new nondiscriminatory se-
niority lists in accordance with the seniority rules we announced and established
on or about August 13, 1963.
WE WILL make whole Harley Eugene Stukes and Vidal Garcia for any loss
of earnings or welfare benefits they may have suffered because of our discrim-
ination against them.
WE WILL reimburse all the nonunion stevedores for the percentages of their
wages which were illegally extracted from them.
LOCAL 1367, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, AFL-CIO,
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.
Employees may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No.
CA 8-0611, Extension 4271, if they have any question concerning this notice or com-
pliance with its provisions.