Longshoremen's Local No. 13

National Labor Relations Board - Board Decisions

May 28, 1974

210 N.L.R.B. 952 (N.L.R.B. 1974)

952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen 's and Warehousemen's
Union , Local No. 13 (Pacific Maritime Associa-
tion) and Henry A. Gatlin and James Phillips
International Longshoremen's and Warehousemen's
Union, Local No. 13 (Pacific Maritime Associa-
tion) and James Phillips
International Longshoremen 's and Warehousemen's
Union, Local No. 13 and Pacific Maritime Associa-
tion . Cases 21-CB-3296, 21 -CB-3326,
21-CB-3457, and 21-CB-3494
May 28, 1974
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 10, 1970, the National Labor Relations
Board issued its Decision and Order in Cases
21-CB-3296 and 21 -CB-3326 (hereinafter Gatlin ),
finding that Respondent had engaged in unfair labor
practices in violation of Section 8(b)(1)(A) and (2) of
the National Labor Relations Act, as amended.'
On July 28 , 1971, the Board issued its Decision and
Order in Cases 21-CB-3457 and 21-CB-3494 (here-
inafter PMA ), finding that the Union violated
Section 8 (b)(1)(A), (2), and (3) of the Act.2
On Apnl 19, 1972, the United States Court of
Appeals for the Ninth Circuit remanded the Board's
Decision in the Gatlin case to the Board for more
detailed and comprehensive findings , conclusions,
and recommendations in order to clarify its decision
with regard to the actual operation of the sponsor-
ship program and the effect of the program.
Thereafter, because the Decision in the PMA case
was based on a record substantially similar to that in
the Gatlin case, the Board filed a motion to withdraw
its enforcement application in the PMA case which
was then before the Ninth Circuit in order to permit
the Board to take further action in this case
consistent with the Ninth Circuit remand in the
Gatlin case. On September 19, 1972, the Ninth
Circuit granted the Board's motion.
Thereafter, on January 3, 1973, the Board issued an
order in the Gatlin case reopening the record and
remanding the proceeding to the Regional Director
for Region 21 for purposes of receiving further
evidence as to the operation of the sponsorship
program and its effect on employment practices in
the industry affected. On May 14, 1973, the Board
issued an order in the PMA case, reopening the
record and remanding the proceeding to the Region-
al Director for the purpose of receiving such further
evidence as to any of the issues in the PMA case
which are affected by the terms of the Ninth Circuit's
remand in the Gatlin case.
On November 5, 1973, Administrative Law Judge
Jerrold H. Shapiro issued the attached Supplemental
Decision in this proceeding. Thereafter, the General
Counsel, Pacific Maritime Association (herein
PMA), and Respondent filed exceptions and sup-
porting briefs, and PMA filed a brief in opposition to
Respondent's exceptions and brief .3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
i I83 NLRB 221.
2 192 NLRB 260
3 The General Counsel has filed a motion to strike Respondent's
exception and brief on the ground that they fail to comport with Sec 102 46
(b) and 102 46 (c) of the Board's Rules and Regulations Respondent has
filed a brief in opposition The motion is hereby denied While we do not
condone the statement of exception in terms so broad as to cover the entire
Decision of the Administrative Law Judge in this case, the statement of
grounds set forth following the statement of the exception makes it clear
that the Respondent is contending the Administrative Law Judge's Decision
is defective in that Respondent was deprived of due process of law and or
equal protection of the laws (see discussion in fn 4, infra )
The General Counsel has also filed an ancillary motion to strike portions
of Respondent's bnef as constituting improper, irrelevant, and/or scandal-
ous, scurrilous argument Respondent, while asking leave to strike part of its
brief, opposes the General Counsel's motion in all other respects The
portion of Respondent's brief which both the General Counsel and
Respondent seek to have stricken and which we shall strike, contains a
personal attack on the Administrative Law Judge based on what
Respondent now concedes to be pure speculation Such unfounded
imputations are condemned by the Board The last sentence on p I i of
Respondent's brief, as well as in. 3 and the last paragraph of Appendix
TWO, beginning at the bottom of p I and ending with the word "radio" at
the top of page 2 thereof are hereby stricken . In all other respects, the
General Counsel's motion to strike portions of Respondent 's bnef is hereby
denied as lacking in merit
210 NLRB No. 143
LONGSHOREMEN'S LOCAL NO. 13 953
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,4
findings,5 and conclusions6 of the Administrative
Law Judge as modified herein.
The Administrative Law Judge has to some extent
modified the orders issued by the Board in these
cases based upon his conclusion that Respondent has
discontinued its unfair labor practices relating to the
sponsorship program and a discriminatory prefer-
ence given to TW (terminal warehouse unit) mem-
bers and has bargained in good faith with the PMA
on these matters. The General Counsel has filed
exceptions. The General Counsel urges that, while
there appears to be no dispute that Respondent did
cease to insist upon unlawful sponsorship in Febru-
ary 1970 and inferentially at least thereafter did
bargain with PMA on that matter, there is a paucity
of evidence that Respondent has at any time ceased
granting preferential dispatch to its TW members.
The General Counsel urges that the matter of
Respondent's compliance with the Board's orders be
left to the compliance stages. We agree. Accordingly,
we shall affirm our original orders in these cases.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
International Longshoremen's and Warehousemen's
Union, Local No. 13, Wilmington, California, its
officers, agents, and representatives, shall take the
action set forth in our original orders in these cases
dated June 10, 1970, and July 28, 1971.
4 The Respondent attempts to demonstrate at length that the Adminis-
trative Law Judge did not read or consider any of the briefs, exhibits,
stipulations , transcripts , facts , or arguments and that therefore Respondent
was deprived of a fair trial Respondent's contentions are primarily based
on its speculation as to what is possible within the time between the date of
the filing of briefs and the issuing of the Administrative Law Judge's
Decision In our opinion there was sufficient time to enable the
Administrative Law Judge to consider the entire record in this proceeding
including the arguments of the parties Moreover, the full discussion of the
facts and issues in the Administrative Law Judge's Decision demonstrates
that the Administrative Law Judge did give full consideration to the entire
record including the arguments of the parties
The Administrative Law Judge erroneously states at one point in his
Decision that the Coast Committee's order directing that the sponsorship
system be abolished was issued in 1960 However, as noted elsewere in the
Administrative Law Judge's Decision, that order was issued in November
1965 and was effective at the end of the then current registration
5 The Pacific Maritime Association has excepted to the Administrative
Law Judge' s findings with respect to the discriminatory application of the
sponsorship system in the years prior to 1967. PMA contends that the
parties have stipulated that, of 500 registered during World War I1,
approximately half were Black and half were white It further contends that
this stipulation is not necessarily inconsistent with the testimony of Union
President Johnston that the Blacks came into Respondent during the
1948-51 period It points out that the 500 were first registered during World
War II and then deregistered in 1946 due to a recession in the industry and
then registered as work opportunities arose and that by 1451 or 1952 all had
been offered reregistration PMA further contends that on registration the
500 assumed their original registration date Thus while Blacks entered
Respondent during 1948-51 as Johnston testified, they entered with their
World War II registration dates Since this history is only background and
the findings with respect to it are not determinative of the issues, we find it
unnecessary to pass on Respondent's exceptions except to note that we do
not rely on the Administrative Law Judge's findings with respect to the
racial impact of the sponsorship program during the 1965-66 period
6 Member Fanning continues to adhere to the view, as expressed in his
concurring opinion in the Gatlin case, that Respondent 's sponsorship
requirement is unlawful Here the Respondent 's insistence on sponsorship
by Class A registrants-all of whom are members of Respondent-gives rise
to an inference that such conduct operates to encourage union membership
by demonstrating the potency of union power. Respondent has offered no
evidence which would demonstrate that Respondent 's insistence on
sponsorship for Class B registration serves in any statutorily cognizable way
to further the Union's performance of its statutory representative function.
International Brotherhood of Painters and Allied Trades, Local Union 1066,
AFL-CIO (W J Siebenoller, Jr, Paint Company), 205 NLRB No. 110
(Member Fanning's concurrence in fn 4), General Truck Drivers, Chauffeurs
and Helpers Union, Local No. 692, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America (Great Western Umfreight
System), 209 NLRB No 52 (Member Fanning's concurring opinion)
Accordingly, Member Fanning concurs with his colleagues in reaffirming
the findings of unlawful conduct
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: On
June 10, 1970, the National Labor Relations Board, herein
called the Board, issued its Decision and Order in
International Longshoremen's and Warehousemen's Union,
Local No. 13 (Henry A. Gatlin), 183 NLRB 221, for
convenience designated herein as the Gatlin case, finding
that the Respondent International Longshoremen's and
Warehousemen's Union, Local No. 13, for convenience
designated herein as the Union or the Respondent, violated
Section 8(b)(l)(A) and (2) of the National Labor Relations
Act, herein called the Act, by requiring that applicants for
registration as class B longshoremen be sponsored by class
A registrants.
On July 28, 1971, the Board issued its Decision and
Order in International Longshoremen's and Warehousemen's
Union, Local No. 13 (Pacific Maritime Association), 192
NLRB 260, for convenience designated herein as the PMA
case, finding that the Union violated Section 8(b)(1)(A),
(2), and (3) of the Act, inter alta, by its requirement that
applicants for registration as class B longshoremen be
sponsored by a member of the Union or by a former
member with a withdrawal card, and the Union's insist-
ence for a time upon the use of sponsorship in class B
registration in its negotiation with the Pacific Maritime
Association. In determining that such sponsorship program
was illegal the Board relied in part on its findings in the
Gatlin case.
On April 19, '972, the United States Court of Appeals
for the Ninth Circuit remanded the Board's Decision in the
Gatlin case for mor. rlctailed and comprehensive findings,
conclusions, and recommendations in order to clarify the
decision with regard to the actual operation of the
sponsorship program and the effect of the program.'
Thereafter, t:' iris"ie consistency in its Decisions, the
Board successfully moved the court to allow the Board to
withdraw its application for enforcement in the PMA case,
for the purpose of enabling the Board to take further
i N L R B v International Longshoremen 's and Warehousemen 's Union.
Local No 13, 80 LRRM 3213 (C A 9, April 19, 1972)
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence in the case consistent with the court 's remand in
the Gatlin case.
On May 14, 1973, the Board remanded the Gatlin case
and the PMA case to the Regional Director for Region 21
of the Board with instructions that a hearing be held before
an Administrative Law Judge, "for the purpose of
receiving such evidence as will permit more definite and
precise findings and conclusions as to the type of
sponsorship program being operated by the Respondent
during all times material to this proceeding and the effect
of such program on employment practices in the indus-
try."2 On October 2, 1973, a hearing in this matter was
conducted by me.
Based upon the evidence adduced at the hearing on
remand, the record in the Gatlin and PMA cases,3 and in
the light of the terms of the court's remand in Gatlin, and
having considered the parties' posthearing bnefs,4 I make
the following findings,5 conclusions, and recommenda-
tions.
1.
At this point, to present the matter in a more meaningful
context, I shall draw together all of the pertinent facts
which in large part have already been found by the Board
either in Gatlin or PMA and which in my view are
supported by the record on remand. The findings of fact in
this section not previously made by the Board are
explained herein or in sections II through IV, infra.
The Pacific Maritime Association (PMA) on behalf of its
employer members and the International Longshoremen's
and Warehousemen's Union (ILWU) on behalf of its
locals, including the Union, were parties to a collective-
bargaining agreement which was effective through 1971.
The contract establishes various joint committees consist-
ing of an equal number of representatives of PMA and
ILWU. One of these committees, the Joint Coast Labor
Relations Committee, referred to as "the Coast Commit-
tee," has coastwide jurisdiction to consider the issues that
are presented to it under the contract. The Coast
Committee has the power to review decisions relating to
the operation of dispatching halls.
The collective-bargaining agreement establishes, for each
port covered by the agreement, a separate committee
known as the Joint Port Labor Relations Committee. The
port involved in this proceeding is the Los Angeles-Long
Beach harbor. The Los Angeles-Long Beach Joint Port
Labor Relations Committee, herein called the "Port
Committee," is, as is the case of all similar port commit-
2 The Regional Director was also empowered to receive any evidence
deemed relevant and material to any of the issues in these cases affected by
the terms of the court 's remand in the Gatlin case.
3 The parties stipulated that "all evidence in the record either in [the
Gatlin case or the PMA case I is offered in evidence . . subject to objection
by any party as stated in the existing record or as stated at oral hearing and
subject to contradiction by any party."
* 1 have carefully considered the Respondent's postheanng objections
and motions to strike and observe that the motion insofar as it refers to G C
Exhs . 22(a) through 39 was granted by the Board in the PMA case Nothing
in the record on remand leads me to recommend that the ruling be
modified . Regarding the remainder of the motion which deals with a 34-
page stipulation together with about 89 exhibits first made a part of the
record in the PMA case, the Board in PMA denied this motion. My
independent review of the record convinces me that the ruling was proper
tees, composed of representatives of PMA and the local
union, and pursuant to the terms of the contract exercises
control over the longshoremen registration lists. Subject to
the ultimate control of the Coast Committee, the Port
Committee has the power to make such additions or
subtractions from the registered list as may be needed, and
is required to maintain a list showing the registration status
of each longshoreman. The contract also provides that the
dispatching of longshoremen shall be through halls
maintained by the Port Committee and that longshoremen
who are not on a registered list shall not be dispatched
from the hall so long as there are men on the registered list
who are available for work. The preferred treatment given
registered longshoremen is further subdivided into a first
preference accorded to fully registered longshoremen
known as class A registrants and a second preference
accorded to limited registered longshoremen known as
class B registrants . If all available class A and class B
registrants have been referred, then other longshoremen
known as "casuals" or "unregistered" men can be
dispatched. All class A registrants are normally members
of the Union, whereas class B registrants and unregistered
men generally are not union members.
The Union, with the agreement of PMA, historically
maintained a policy of requiring that applicants for class B
registration be sponsored by eligible members of the
Union. However, by agreement between PMA and ILWU
officials in November 1965, the Coast Committee terminat-
ed the use of sponsorship in registration effective immedi-
ately after the then pending 1965-66 registration was
completed. But, when additional openings for class B
registrants were thereafter created, the Union through its
representatives on the Port Committee, over the objections
of the representatives of the PMA, adamantly insisted that
no applicant for class B registration would be approved by
the Union unless, as described in detail below, sponsored
by a member of the Union.6 The Union maintained this
position from about June 15, 1967, until February 1970, at
which time it agreed that sponsorship would not be
considered in registration, and proceeded to implement the
award of the arbitrator, which is described, infra.
The Union adamantly maintained its position that
sponsorship was a condition of registration despite the
assertion in 1967 and again in 1968 by the Coast
Committee of its opposition to the use of sponsorship. The
Union's rigidity on the issue forced the matter to
arbitration pursuant to the contractual grievance-arbitra-
tion procedure. The arbitrator found, inter alia, that the
Union was "insisting that the only registration process to
and that nothing has changed since PMA to warrant any modification of
the ruling. To the contrary, the Respondent by virtue of par 3 of the
stipulation entered into at the hearing on remand (G C. Exh. R2) appears to
have limited the scope of any possible objections on this matter.
5 "G.C. Exh R" or "PMA Exh. R" refer to the General Counsel's or the
Charging Party's exhibits placed in evidence at the hearing on remand. The
references to "G C Exh " are to the exhibits of the General Counsel placed
in evidence during the Gatlin and PMA cases "Para Joint Exhibit" refers to
the parties Joint Exhibit placed in evidence in the PMA case, and "S- "
refers to the numbered exhibits referred to in the aforesaid Joint Exhibit.
6 The Union further implemented its stance on sponsorship by denying
nonregistered longshoremen , such as James Phillips, the opportunity to
apply for registered status on the ground that his application must be
sponsored
LONGSHOREMEN'S LOCAL NO. 13 955
which it [would] agree is one that included sponsorship,"
and specifically concluded, inter alia, that the Union's
sponsorship program constituted a violation of the collec-
tive-bargaining agreement .? In opposition to the arbitra-
tor's award , the Union continued to insist on using
sponsorship in the registration of class B applicants. By this
continued insistence on the use of sponsorship the Union,
through its representatives on the Port Committee, blocked
the registration of class B longshoremen for approximately
2 1/2 years. The Union was able to do this for the reason
that although applicants were required to take a physical
examination and were interviewed on a nondiscriminatory
basis after their selection by the Port Committee, appli-
cants without sponsors were automatically excluded from
the consideration by the Port Committee and never got as
far as an interview or physical examination. In short, the
Union exercised a veto over the registration of class B
applicants.
The result of the Union's action was a need to fill
longshoreman jobs with a larger number of unregistered
men than would have been dispatched had the class B list
been augmented. It was at this point, January 1969, that
the Union drastically increased the number of its members
among the unregistered terminal warehousemen, herein
called TW members, and as found in the PMA case
unlawfully gave preference to its TW members over
nonmembers in dispatching nonregistered men to long-
shoreman jobs. Furthermore, as found by the Board in
PMA, this illegal preference in dispatching its TW
members , when viewed in the context of the total case, was
a none-too-subtle maneuver by the Union to obtain class B
registration preference for its TW members over the other
applicants for class B registration who were not members
of the Union, thereby preventing the registration of
nonmembers on a nondiscriminatory basis. Simply stated,
the Union's preferential referral of its TW members was
directly related to the Union's sponsorship program. It was
designed to get around the PMA's and the arbitrator's
refusal 4o acquiesce in the Union's insistence that class B
registrants have a sponsor.
Now that the case has been placed in its context, I will
deal with the issues raised by the remand.
II.
In Gatlin the Board concluded that the Union was
insisting that all applicants for registration as class B
longshoremen must be sponsored by class A registrants, all
of whom were members of the Union, before such
t The arbitrator's construction of the collective-bargaining agreement, of
coarse . is entitled to substantial weight on the issue of the meaning of the
co itract and specifically whether the use of sponsorship by the Union was
contrary to the agreement. The agreement particularly prohibits "favoritism
or discrimination in the hiring or dispatching or employment of any
[qualified] longshoreman " and also requires that any member of the
Port Committee who "objects to the registration of any man shall be
required to give a reason therefore"-language which plainly dictates that
applications be considered on a rationale basis and not on some basis of
personal friendship or membership within the Union Based on the language
of the collective-bargaining agreement and the award of the arbitrator, I
find that the insistence of sponsorship by the Union in the registration of
class B registrants was in violation of the collective-bargaining agreement
8 Specifically , in this regard , Paul Van Delinder in 1966 was declared
ineligible to sponsor because he had transferred from another ILWU local
applications would be considered by the Union. In PMA,
however, the Board on the basis of a more complete record
found that membership in the Union was not merely
coincidental with class A-registered status , but that the
Union was insisting that applicants for class B registration
status be sponsored by a member of the Union or by a
former member with a withdrawal card . I am convinced,
based on the evidence set out below, that the record on
remand supports the conclusion that eligibility to sponsor
was based upon membership in the Union , and that the
employees and Union regarded sponsorship as a private
internal affair of the Union.
(1). In the PMA case the Union stipulated, "a sponsor
in connection with the registration process is a member of
local 13, or a former member with a valid withdrawal card,
who recommends the applicant for registration " (Par. 41
Joint Exh .). Consistent with this stipulation, the Union's
members and leadership were under the impression that
the privilege to sponsor was a benefit of membership in the
Union. Thus, William Ward, a registered longshoreman
and member in the 1950 's and 1960's as well as an official
of the Union , testified that the sponsorship program was
explained to the registered longshoremen as a system
giving the right to "each member to sponsor someone."
Also, the president of the Union, Curt Johnson, testified in
the Gatlin case that he assumed that each of the class B
applicants submitted by the Union to the PMA on October
2, 1968, was recommended "by a member. "
(2). In the actual operation of the sponsorship program,
it appears that a substantial number of fully registered
class A longshoremen were declared ineligible to sponsor
only because they were not members of the Union on
March 8, 1951 (See G.C. Exh. 10, particularly the
noneligible sponsors listed in "lists" 2 , 4, and 5).8 Also, the
class B applicants submitted on October 2, 1968, by the
Union to the PMA (G.C. Exh. 3), were sponsored by
individuals whose eligibility to sponsor was determined by
the date on which they were initiated into the Union (see
par. 11, Joint Exh. and S-6 and S-8 referred to therein).9
Indeed , when the list of the names of the class B applicants
and sponsors submitted on October 2, 1968 (G.C. Exh. 3) is
compared with the worksheets used by the Union to
compile this list (see S-5) approximately 90 of the named
sponsors who did not appear on the list of persons entitled
to sponsor (G.C. Exh. 10) were individuals who had been
accorded sponsorship privileges based on their dates of
initiation into the Union , all of which dates were late in
1951, long after March 8, 1951.10 Also, in connection with
its preparation of the October 2, 1968, list of applicants
union after the deadline date of March 8, 1951, even though he had been
registered as a class A longshoremen since November 6, 1945 (C.G. Exh. 10
at p 10-11). Thereafter , the Union apparently discovered that Van Delinder
had been initiated into the Union on June 25, 1951 (See S -5), whereupon his
name was submitted on October 2, 1968 , as an eligible sponsor (G C Exh. 3
at p. 9)
9 Likewise, Ward , a member of the Union and an official of the Union
during times material to this case , testified that a requirement for
sponsorship eligibility was that sponsors be "union members whose
initiation date was prior to March 8, 1951." In practice , however, as
described infra, the Union permitted members to sponsor who were initiated
even after March 8, 1951.
io In Gatlin the court observed that "no findings were made with regard
to the 179 sponsors who did not appear eligible under the union 's posted
eligibility criteria for sponsors ." As found above, about 90 or more were
(Continued)
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and their sponsors, the Union stipulated that "the
registration advisory committee of local 13 prepared
certain lists of past and present local 13 members . . . with
the name of the man that each was sponsoring ..." and
further stipulated "that the [Union] also prepared a
document . . . [setting] forth the names of members of
Local 13 in sequence of their dates of initiation into Local
13," who had not exercised their sponsorship right under
the 1965 procedures (par. 11, Joint Exh.).
(3). At the Port Committee meeting of February 2,
1968, the PMA representatives moved that the Union be
found guilty of violating the collective-bargaining agree-
ment by insisting upon using the sponsorship program in
the selection of class B longshoremen. The representatives
of the Union took the position that the motion should be
tabled for further study by the Union. PMA's representa-
tives reminded the union representatives that consistently
since the Port Committee's meeting of June 15, 1967, the
Union had taken the position that class B applicants would
only be registered if they were sponsored. PMA's repre-
sentatives then explained to the Union's representatives the
employers' understanding of the sponsorship program, in
these terms:
The procedure used by [the Union] to approve
applicants is that [the Union's] Membership committee
or Registration advisory committee calls before it Local
13 members in sequence of their respective dates of
initiation into [the Union]. Excluded from being called
to appear are all persons who have sponsored men in
prior registrations. Each member of [the Union] called
before the Registration Advisory Committee has an
opportunity to present the name of one applicant to
that Committee for approval by the [the Union]
Membership Committee. Any applicant for registration
whose name is before the [Port Committee] and who
has not been approved by the . . . procedure just
described is for this reason denied approval by the
[Union] members in the [Port Committee]. In denying
approval, these [Union] representatives are acting in
accordance with the mandate of the [Union] member-
ship.
The representatives of the Union did not deny the
accuracy of this description but took the position:
[T]he employers' objection to procedures used by [the
Union] involves private Union affairs and action of
Union committees. The private internal affairs of the
included on the basis of being initiated into the Union on dates subsequent
to the posted eligibility date Included in this list of 90 were about 23 who
were declared ineligible by the Port Committee at the meeting of March 3,
1966, for the reason that they had registered after the eligibility date (See
G.C Exh 10, list 7). Also, from the record I have determined that four
sponsors on the October 2 submission had, at the March 3, 1966, Port
Committee meeting, been judged ineligible to sponsor because they had
already used their sponsorship privileges, two more had been fudged
ineligible having been foremen who left the Union before the date of March
8, 1951; and four more had been judged ineligible having transferred into
the Union from other local unions after March 8, 1951 (See G C Exh 10
and compare with G C Exh 3) I am not able to make findings as to the
remaining ineligible sponsors appearing in the Union's submission of
October 2, 1968
Union are not properly before the [ Port Committee] for
discussion.
The above findings pertaining to the Port Committee
meeting of February 2, 1968, are based on the minutes of
the meeting (S-53). These minutes, as is the case of all
minutes of the Port Committee, were kept during the
normal course of business by the PMA. Also, the parties
stipulated that, if called, witnesses would have testified
under oath as to what is contained in these minutes. (G.C.
Exh. R2, par. 3) I realize that the president of the Union
signed the minutes of February 2 with the written comment
that these particular minutes in general portrayed an
inaccurate picture of what took place at the meeting, that it
was slanted in favor of PMA. But I will not, however, give
weight to such a general denial, over the specific descrip-
tion by the PMA representatives of the sponsorship system
and the Union's reply. I am of the opinion that the Union's
failure to specifically disavow the PMA's description of the
sponsorship program, plus the whole record, supports the
description contained in the February 2 minutes, which I
find is an accurate description of the operation of the
sponsorship program and the Union's attitude toward the
program.
To conclude, based on the foregoing, although eligibility
to sponsor was defined in terms of class A status, I find
that the preponderance of the evidence establishes that in
the actual operation of the sponsorship program, eligibility
to sponsor was conditioned upon membership in the
Union,ii and that the Union viewed the sponsorship
program as a private internal union affair.
For an undetermined number of years, the Union has
maintained a policy that applicants for class B status must
be sponsored, as I have found above, by a member of the
Union. This policy was acquiesced in by the Employer, the
PMA, which together with the Union used the procedure
to screen applicants for class B registration. There is no
competent evidence indicating the reason for the initiation
of this procedure.12 There is evidence, however, establish-
ing that early in 1960 the Coast Committee, which, as
described earlier, has the ultimate power under the
collective-bargaining agreement over registration practices,
issued an order directing that the practice of sponsorship
be abolished. The circumstances surrounding the Coast
Committee's decision are relevant to this proceeding
insofar as they present a more complete picture of what
actually took place than the one portrayed in the Gathn
11 The parties stipulated that during the period of time when the
sponsorship program was in use that six class A registrants , not named, were
not members of the Union. The Union presumably had the names of these
registrants in its possession, yet it adduced no evidence that these
nonmembers were accorded sponsorship rights. Under the circumstances. I
presume that this group of class A registrants were not among the eligible
sponsors of March 13, 1966, or the sponsors in the Union' s submission of
October 2, 1968.
12 On the subject of the "genesis" of the sponsorship program,
Respondent, in its posthearing brief, states "[i ]t was only natural that the
longshoremen of the '30's and '40's whether members of an ethnic, racial or
economic minority, hit upon 'sponsorship ' as a means of assuring some
minimum job opportunities for their sons "[Emphasis supplied ]
LONGSHOREMEN'S LOCAL NO. 13 957
and PMA cases , and provides an insight into the Union's
motivation or justification in insisting that the sponsorship
program be continued.
On January 22, 1963, the Coast Committee agreed to add
250 class B-registered longshoremen in the Los Angeles-
Long Beach harbor. (PMA Exh. R1) Previously, for a
number of years no new class B longshoremen had been
registered . At the same time that it authorized the
registration of the 250 additional class B registrants, the
Coast Committee issued the following instruction to the
Port Committee.
Attention to be given to making sure that the practice
of sponsorship of recruits in Los Angeles is continued
now that Negroes will have their chances to sponsor
effectively so that registration does not result in
violations of equal opportunity policies in the Los
Angeles Area.
The basis for this instruction was the belief of the Coast
Committee that there were a group of blacks who were
eligible to sponsor under the sponsorship program as
applied by the Union, and that if they were denied this
right they would charge the Union and PMA with
discrimination. In this regard, Johnson, the Union's
president, testified in Gatlin that a large number of
Negroes "were brought into this local" from 1948 through
1950. Also, the parties stipulated at the hearing on remand
that blacks were employed as class A longshoremen "at the
earliest sometime during World War II and at the latest
sometime in 1951 or 1952" with the largest number of
blacks being registered as class A longshoremen prior to
March 8, 1951.
On November 23, 1965, the Coast Committee reiterated
its January 22, 1963, ruling, previously described, that the
sponsorship system would be continued in registering class
B registrants , but now it limited the future use of
sponsorship to the current registration. Specifically, the
Coast Committee informed the Union and the PMA that
the sponsorship procedure used in the past would be used
in the "current registration of Longshoremen at [the Los
Angeles-Long Beach] port," and that "the sponsorship
procedure shall not be used thereafter." In short, the Coast
Committee on November 23, 1965, unequivocally told the
Union and PMA that after the current registration of the
250 class B men, they were to consider applicants without
regard to sponsorship.13 (See S-28, S-36, and G.C. Exh.6)
Thereafter, at some date in 1966, after reaching agree-
ment on a list of eligible sponsors (see G.C. Exh. 10), the
Port Committee used the sponsorship program to screen
out applicants and registered the 250 class B longshoremen
previously authorized by the Coast Committee. Regarding
this registration, it was stipulated by the parties in the
13 William Ward, a member of the Coast Committee representing the
ILWU, testified that his recollection of the above meeting was not clear and
he would have to refresh his memory by reading the minutes of the meeting
(S-28). Then, without doing this, Ward, in substance testified that he
recalled that the sponsorship program was to continue indefinitely until all
of the eligible "members of the Local" had an opportunity to sponsor
someone . But he later qualified this by testifying he meant that the
understanding was "they would continue to use sponsorship for the
upcoming addition to the registration list." On this subject, Ward was not a
convincing witness . He impressed me in bearing and demeanor as having no
PMA case, in substance, that in deciding in November
1965 to continue to allow the use of sponsorship during the
then current registration, the Coast Committee felt that
prior to 1965 only a low percentage of "Local 13 members
who were black" had been able to sponsor and a high
percentage of other "union members" had sponsored, so in
these circumstances the Coast Committee decided that
sponsorship should be used in the 1965-66 registration to
effectuate the requirements of the contract and the law that
there be no discrimination based upon race.
Regarding the eligibility to sponsor at the time of the
1966 registration, the Port Committee on March 6, 1966,
agreed that of the list of sponsors submitted by the Union,
331 were eligible to sponsor class B applicants pursuant to
the eligibility standards posted on May 26, 1965, for
determining such eligibility. On its face, the posted
standard of eligibility states that only those class A
longshoremen who had obtained class A status prior to
March 8, 1951, and who had not already successfully
sponsored a class B applicant for registration would be
eligible to sponsor class B applicants in the future.14 In the
Gatlin case, the president of the Union, Johnson, testified
that the eligibility to sponsor had been limited in this
fashion by the Union sometime during 1964 when the
Union discovered that a "great many negroes" would be
deprived of their sponsorship privilege if any date earlier
than March 8, 1951, had been selected as the date cutting
off such privilege. Johnson testified that during the years
1948, 1949, 1950, and 1951, a large number of Negroes
"were brought into this local" and by using March 8, 1951,
as a cutoff date they would have the same right to sponsor
as "the other groups." In this regard, it was stipulated in
the hearing on remand that, included among the last
several hundred class A applicants who were registered
immediately prior to March 8, 1951, there was a concentra-
tion of blacks.
Based on the foregoing, it seems that the Coast
Committee in 1963 and in 1965 was under the impression
that through the use of the sponsorship system it would
give the blacks an equal chance to sponsor. And, as
described above, the Union says it tailored its sponsorship
program to effectuate such a policy of equality. Yet, the
actual operation of the sponsorship program belies the
Union's claim, and it appears that the confidence of the
Coast Committee was misplaced. Thus, of the 331 eligible
sponsors, all except 45 had seniority in the Union dating
prior to 1948. It is undisputed that in determining the order
of sponsorship among those eligible to sponsor seniority
governs. In other words, because of this policy the Union
knew that the group of 45 eligibles among whom the blacks
were presumably concentrated would have to await their
turn until the other 286 were given the opportunity to
exercise their privilege to sponsor for the 250 job openings.
independent recollection of what had taken place at the Coast Committee
meeting held 8 years ago I reject his testimony on this subject. Also, on this
matter, I note that the Union at no point in its discussions with PMA took
the position that the Coast Committee had agreed on November 23, 1965, or
had agreed on any other date to allow the Union to use sponsorship
indefinitely until all of the eligibles had exercised their sponsorship
privileges
i4 1 have found , supra, that in practice eligibility to sponsor was
conditioned primarily upon membership in the Union and, if at all, only
coincidentally upon class A status
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In fact, 34 of the 45 did not use their privilege to sponsor in
the 1966 registration.15 Finally, the record as a whole, the
various stipulations and the testimony of Union President
Johnson indicate that very few blacks were included
among the 286 sponsors whose union seniority predated
1948. All of these circumstances, in my view, establish that
the last time the sponsorship program was actually used in
the selection of applicants for class B registration its use
resulted in the blacks being discriminated against. They
were discriminated against as sponsors by virtue of the
seniority system, and if there is a correlation between the
race of a sponsor and the applicant he sponsors then black
applicants were obviously discriminated against.
IV.
The Union called no witnesses at any stage of these
proceedings. The only evidence justifying the use of the
sponsorship program was that of Union President Johnson,
called by the General Counsel, and a number of stipula-
tions which in substance establish that a substantial
number of blacks were registered as class A longshoremen
in the years 1948-51, up to March 8, 1951, and that
because of this the Union picked the latter date as the
critical one for determining eligibility to sponsor. The
Union, as the Board in Gatlin indicated, seems to be
suggesting that its sponsorship program was reasonable
because use of sponsorship, in these circumstances, would
cause other blacks to become class B registrants. The
Board , however, found that this explanation "has a very
hollow ring." I agree, for if the Union's purpose was really
to achieve or preserve racial balance, it could have easily
accomplished this objective by abandoning sponsorship, as
directed by the Coast Committee and the arbitrator, in
favor or a policy of recommending qualified black
applicants without regard to whether they happen to know
a black member of the Union or a black class A registrant.
Also of significance is the fact that, as found above, the
sponsorship program as it was operated was not calculated
to increase or encourage the employment of blacks.
Indeed, it appears that the last time the system was used
black sponsors were discriminated against because of the
use of seniority in determining eligibility. Of even greater
significance , the evidence establishes that the Union's
insistence from June 1967 to February 1970 upon continu-
ing the use of sponsorship was not, as the Union at one
point told PMA, motivated by any concern with giving the
group of black members (about 34) who had been initiated
into the Union from 1948 through March 7, 1951, and had
not used their sponsorship privilege in 1966, same
opportunity to sponsor as other groups. For, in subse-
quently insisting upon the continuation of sponsorship, the
Union, as the Board found in Gatlin, used a much broader
system of sponsorship than established by its own ruses.
is Compare G C. Exh 10, which contains the names of the 45 1948-51
eligible sponsors , with G.C. Exh. 3 which contains the names of the
sponsors submitted by the Union on October 2, 1968. Thirty-four of the 45
found eligible in 1966 reappeared on the submission on October 2, 1968.
16 In deciding whether the ultimate findings in this proceeding establish
a violation of the Act I have been guided by the principle of law set out by
the Board in International Union of Operating Engineers, Local 18,
AFL-CIO, 204 NLRB No 112:
The list of class B applicants submitted by the Union to the
Port Committee on October 2, 1968, contained 254 names,
each with a sponsor; yet, about 70 percent of these
sponsors were ineligible to sponsor. The documentary
evidence, as found supra, establishes that about 90 of those
not eligible were given the privilege to sponsor on the basis
of their initiation into the Union on dates subsequent to
the March 8, 1951, published eligibility date. The Union
offers no explanation for the inclusion of this group as
eligible sponsors, nor does the Union offer any explanation
for deviating from its established sponsorship program.
Without an explanation supported by competent evidence
I can not presume a reasonable explanation for this
conduct, nor can I presume that included in the 90 and
other ineligibles was a heavy concentration of blacks.
Contrariwise, I presume that included among the 90 were
few, if any, blacks, inasmuch as the Union says the reason
it established in 1964 the March 8, 1951, cutoff for
eligibility to sponsor was that it was prior to this date that
there was an influx of blacks with class A status. I presume
that the cutoff date would have been drawn at January 1,
1952, if additional blacks had acquired class A status
between March 8 and December 31, 1951.
Based on the foregoing, (sections II, III, and IV), I find
that the continued use of the sponsorship program, upon
the Union's insistence from June 1967 to February 1970,
was unrelated to any desire on the part of the Union to
assist black sponsors or black applicants and that the
sponsorship program, as operated, bore no relationship to
the competence needed for registered longshoremen work.
Rather, it was motivated by a desire to reward members of
the Union with a form of patronage. I further find that the
sponsorship program, as operated, had nothing to do with
any legitimate function that the Union had as a bargaining
representative.
Concluding Findings 16
For the reasons given above, I conclude that the
evidence developed in this proceeding establishes: (1) In
the actual operation of the sponsorship program the
eligibility to sponsor a class B registrant was based upon
membership in the Union; (2) the Union regarded the
sponsorship program as a private union affair outside of
the realm of collective bargaining; and (3) the sponsorship
program, as operated, was unfair and arbitrary, having no
relationship to the Union's role as the employees' collec-
tive-bargaining representative.
I further conclude that in the aforesaid circumstances the
natural result of the sponsorship program was to encourage
membership in the Union. More specifically, sponsorship
was not used as a means of screening out unqualified
applicants. Contrariwise, it was used as a means of limiting
the number of class B registrants, while at the same time
When a union prevents an employee from being hired . it has
demonstrated its influence over the employee and its power to affect
the livelihood in so dramatic a way that we will infer-or, if you please,
adopt a presumption that-the effect of its action is to encourage union
membership on the part of all employees who have perceived that
exercise of power But the inference may be overcome, or the
presumption rebutted, where the facts show that the union action
was necessary to the effective performance of its function of
representing its constituency. (Id)
LONGSHOREMEN'S LOCAL NO. 13 959
restricting the eligibility of sponsors in a manner which
shows that the Union was more interested in rewarding
members of the Union with a form of patronage than with
finding competent applicants for class B status. Thus, each
union member was entitled to sponsor only one successful
class B registrant during his entire career as a longshore-
man, no matter how many qualified applicants the union
member might come to know in his lifetime. Only union
members who were initiated prior to March 8, 1951, were
eligible to sponsors" and could only exercise this privilege
in the order of their seniority in the Union. The Union
coupled these severe restrictions on sponsorship with a
practice of not entertaining applications which lacked a
sponsor and adamantly opposed the nonsponsored appli-
cants proposed by the PMA-apphcants selected, as the
record shows, on the basis of their experience and training.
Clearly then, the sponsorship program as maintained, was
not simply a means by which an experienced longshore-
man could recommend a deserving fellow unregistered
employee; rather, it was based on whether or not an
applicant knew the right person; namely, a member of the
Union who had not exercised his sponsorship rights. In
short, these sponsors had been clothed by the Union with
power over the livelihood of employees seeking registered
employment status, including the power to deny sponsor-
ship to an individual for wholly irrelevant or personal
reasons or even because of an applicant's antiunion
sentiments . One result of the sponsorship program was to
naturally encourage employees seeking sponsors-and
other employees as well-to join the Union and serve as
loyal members. Applicants would only naturally want to
get as close to the source of power as possible. The fact
that the eligibility of an employee to sponsor is tied in to
his membership in the Union makes this conclusion
inescapable. For, a plan which requires sponsorship by the
Union's members can only lead applicants to believe that
there is a connection between his views toward the Union
and his chances of obtaining a sponsor. In this sense the
sponsorship requirement is tantamount to requiring that
the applicant be favorably disposed toward the Union.
Based on the foregoing, I find that the Union's sponsorship
program as maintained constituted unlawful discrimina-
tion calculated to encourage union membership and as
such constituted unlawful discrimination within the mean-
ing of Section 8(b)(1)(A) and (2) of the Act.
Since I have concluded that the type of sponsorship
program operated by the Union was grounded upon
considerations of union membership, I do not believe that
it is necessary to decide whether the program violated the
Union's statutory duty of fair representation. In the event,
however, that the Board or the court feels I have erred, I
shall decide this issue. Assuming that the eligibility to
sponsor was based upon class A-registered status and only
coincidentally upon union membership, I am of the
opinion that in the circumstances of this case the Union's
insistence upon the use of this program violated its
statutory duty of fair representation . I reach this conclu-
sion for the following reasons.
The Union produced no evidence to demonstrate that the
sponsorship program constituted a legitimate exercise of its
role as the employees ' bargaining representative or of its
contractual authority to operate a hiring hall under its
agreement with the PMA . To the contrary , the evidence as
found above establishes that no legitimate bargaining
representative or hiring hall function was served by the
Union 's policy. Viewed most favorably to the Union, the
evidence establishes that sponsorship was used as a means
of rewarding class A registrants with a form of patronage
rather than with finding qualified applicants for class B
registration . Also, as found above , sponsorship violated the
terms of the collective -bargaining agreement,18 and when
last used tended to discriminate against blacks . For these
reasons, the evidence of the way in which the program
actually operated buttresses the Board 's findings in the
Gatlin case that the sponsorship program has "more the
ring of an archaic social club than of a labor organization,"
and its further conclusions that the sponsorship system was
"arbitrary and unfair ," and that the Union violated its
statutory duty "to refrain from such conduct where it
adversely affects the employment status of employees and
applicants for employment on whose behalf it bargains," in
violation of Section 8(b)(1)(A) of the Act.
I further find that the longshoremen , including appli-
cants for employment , who have been exposed to the
arbitrary and unfair operation of the sponsorship program
as maintained by the Union , will naturally be encouraged
to become members of the Union or if already a member
encouraged to remain members in good standing . In this
connection , the law is settled that although evidence of
unlawful motivation is normally a precondition to a
finding of a violation of Section 8(b)(2), "some conduct
may by its very nature contain the implications of the
required intent ; the natural foreseeable consequences of
certain action may warrant the inference ." Local 357,
Teamsters v. N. L. R. B., 365 U .S. 667 , 675 (1961 ). And, "in
determining whether or not action taken by a union either
encourages or discourages union membership , we examine
the reasonable and general tendency of the union 's acts."
International Longshoremen 's Association, Local No. 1581,
AFL-CIO, 196 NLRB 1186. In the instant case, the
longshoremen (registered and unregistered alike) exposed
to the arbitrary and discriminatory operation of the
Union 's sponsorship program will readily understand they
best become or remain loyal union members. The fact that
longshoremen generally are not eligible for union member-
ship until they attain class A status is irrelevant, for, as the
Supreme Court has noted in a case where the employees
discriminated against were also ineligible for union
membership because they were not sons of members, "the
Act does not require that the employees discriminated
against be the ones encouraged" (Radio Officers' Union v.
N L.R.B., 347 U.S. 17, 51); and , in addition , "Union
admission policies are not necessarily static and .. .
17 This restriction was not inviolate when a large enough group of union 18 In this regard, the Union's continued insistence upon sponsorship
members was involved Thus, as descnbed supra, the Union made a group after the adverse decision of the arbitrator refutes any contention that the
of 90 members eligible to sponsor who were initiated into the Union dunng Union adopted its position based upon a good-faith belief that sponsorship
the latter part of 1951 was not in derogation of the contract
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees may be encouraged to join when conditions
change." (347 U.S. at 52)
RECOMMENDATIONS 19
I shall recommend that the Board reaffirm the rulings,
findings, and conclusions made in the Gatlin and PMA
cases insofar as they are not inconsistent with any of the
rulings, findings, and conclusions set out in this Supple-
mental Decision. Regarding the Orders in these cases, I
shall recommend that the Board reaffirm in their entirety
the cease-and-desist portions of the Orders, but that,
inasmuch as the Respondent in February 1970 discontin-
ued its unfair labor practices relating to the sponsorship
program and the discriminatory preference given its TW
members and has bargained in good faith with the PMA
on these matters, I shall recommend that the affirmative
action portions of these Orders, as well as the notices to
members, be modified to take into account the Respon-
dent's subsequent conduct. For the sake of convenience,
my recommended Order and notice pertaining to the
Gatlin case have been attached hereto as Appendix A and
A-1 [omitted from publication], and my recommended
Order and notice in the PMA case [omitted from
publication ] have been attached hereto as Appendix B and
B-1.
In considering the remedy in this matter, I have carefully
19 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided by Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
considered whether a Board order requiring the Respon-
dent to cease and desist from the unfair labor practices
found has been made moot by Respondent' s subsequent
compliance. Insofar as the Respondent has complied with
the affirmative parts of the Board's Orders in the Gatlin
case and the PMA case, my recommended Order, as
indicated above, reflects such compliance.20 But, in all
other respects I have not modified these Orders, for it is my
opinion that in the circumstances of these cases the
General Counsel and the Charging Parties are entitled to
have the resumption of the unfair labor practices barred by
a cease-and-desist order. In analagous situations the
Supreme Court has repeatedly held that even full compli-
ance with the affirmative provisions of a Board order does
not render the cause moot, since the Board is still entitled
to the potential comtempt sanctions of a court decree to
prevent future related violations. N.L.R.B. v. Mexia Textile
Mills, Inc., 339 U.S. 563, 567-568; N.L.R.B. v. Raytheon
Co., 398 U.S. 25 (1970); also see N.L.R.B. v. Southern
Household Products Company, 449 F.2d 749 (C.A. 5, 1971).
Although I recognize that there are situations where a case
will become moot, I am not persuaded to hold, in the light
of all the pertinent circumstances, that the General
Counsel and the Charging Party are not entitled to the
Orders described above.
deemed waived for all purposes
20 There is, however, no evidence or contention that the Respondent has
complied with the "make whole" affirmative action part of the Order in
PMA requiring it to make whole certain applicants for loss of earnings. For
this reason, I have not modified this part of that Order