Longshoremen's Local Union No. 1419

National Labor Relations Board - Board Decisions

Nov 20, 1970

186 N.L.R.B. 674 (N.L.R.B. 1970)

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Longshore Workers, International Longshore-
men's Association, Local Union No. 1419,
AFL-CIO (New Orleans Steamship Association)
and Ben Davis. Case 15-CB-1031
November 20, 1970
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On June 19, 1970, Trial Examiner Benjamin K.
Blackburn issued his Decision in the above-entitled
proceeding finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
in violation of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief, and
the General Counsel filed a brief in support of the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
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
Recommended Order of the Trial Examiner, and
orders that the Respondent, General Longshore
Workers, International Longshoremen's Association,
Local Union No. 1419, AFL-CIO, New Orleans,
Louisiana, its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner: Ben Davis
filed a charge against General Longshore Workers,
International Longshoremen's Association, Local Union
No. 1419, AFL-CIO, referred to herein as Respondent, on
October 8, 1969. The General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 15 (New Orleans, La.), issued complaint on March
13, 1970. The complaint alleged that Respondent had
violated Section 8(b)(lXA), (2), and (5) of the Act.
Respondent 's answer, duly filed , admitted certain allega-
tions of the complaint and denied others, including the
allegation that it had committed unfair labor practices.
Hearing was held before me, pursuant to due notice, in
New Orleans on April 21, 1970. The principal issue litigated
was whether Respondent 's $1,000 initiation fee violates
Section 8(b)(5) of the Act. All parties appeared at the
hearing and were given full opportunity to participate, to
adduce relevant evidence , to examine and cross-examine
witnesses, to argue orally , and to file briefs . Upon the entire
record, including briefs filed by Respondent and the
General Counsel, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE NEW ORLEANS STEAMSHIP
ASSOCIATION
The New Orleans Steamship Association , referred to
herein as the Association , is a nonprofit Louisiana
corporation composed of various employers engaged in the
business of performing shipping , stevedoring , and related
services at the Port of New Orleans and elsewhere. During
the 12-month period preceding issuance of the complaint in
this case its members received more than $ 1,000,000 for
transporting goods in interstate and foreign commerce and
more than $ 1,000,000 for services performed in connection
with the transportation of goods in interstate and foreign
commerce. On the basis of these facts , admitted by
Respondent , I find that the Association is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
The contract presently in effect between Respondent, a
sister ILA local, and the Association covers the period from
October 1, 1968, to September 30, 1971. It contains a valid
union-security clause providing for union membership after
30 days as a condition of employment. It provides for a
basic wage of $4 an hour effective October 1, 1968, $4.25 an
hour effective October 1, 1969, and $4.60 an hour effective
October 1, 1970. It calls for time and a half for overtime
and double time for work during meal hour. It provides for
higher hourly rates of pay when handling various difficult
cargoes. The highest of these is $9.60 an hour effective
October 1, 1970, for damaged cargo-grain.
The contract prior to the present one ran from 1964 to
1968. At the time it was negotiated in 1964 there were
approximately 13,000 persons employed as longshoremen
186 NLRB No. 94
LONGSHOREMEN'S LOCAL UNION NO. 1419 675
in the Port of New Orleans. Of these, approximately 7,000
qualified for benefits under the contract by having worked
at least 700 hours in the preceding year. The twin specters
of automation and a guaranteed annual wage caused
problems in the negotiation. A United States assistant
secretary of labor who participated suggested that manage-
ment and labor try to stabilize the work force on the
riverfront, thus making both automation and guaranteed
annual wage easier pills to swallow , by working out some
system for reducing the use of casual labor. As a result, the
1964-68 contract contained a "Decasualization " clause
which provided for continued discussions to this end during
the life of the contract.
In 1966 and 1967, pursuant to this agreement, the parties
to the contract worked out and put into effect the system
which is set forth in the "Hiring" clause of the current
agreement . A registered basic work force is categorized as
Group A. A registered nonbasic work force is categorized
as Group A-2. Nonregistered persons who seek work as
longshoremen are categorized as casuals . A longshoreman
registers by filing an application with the Association and
taking a physical examination. If he passes, he receives an
identification card. First opportunities for employment go
to members of Group A and Group A-2 without
distinction. Casuals are hired only after all holders of
identification cards who are present for the daily shapeup
are hired. Casuals are only hired on a particular day if the
Association first authorizes it.
Respondent, with approximately 4,000 members, approx-
imately 2,800 of whom are actively working as longshore-
men in New Orleans, is the largest ILA local in the port. It
has, for at least 25 years, provided death and medical
benefits for its members which are over and above benefits
they receive under the contract. Its dues are $3 per calendar
quarter, plus 5 percent of earnings up to $3 a week. When a
member pays his quarterly dues he receives a button which
he displays when working to prove he is a member of
Respondent. Respondent's initiation fee has varied over the
years. From 1961 to March 1965 it was $270. From March
1965 to September 1967 it was $500. From September 1967
to April 30, 1968, it was again $270. From April 30, 1968,
until April 14, 1969, it was again $500. On April 14, 1969, as
part of the decasualization program, Respondent increased
its initiation fee to $1,000 in order to limit the intake of
members, thus avoiding building up a surplus work force.
The fee is collected $500 on application and $500 in
installments payable within 60 days. However, it is not
unusual for an applicant to take as long as a year to pay the
balance. He is considered a member for purposes of the
union-secunty clause of the contract during this period. He
does not pay any dues until the initiation fee is paid off. In
the period from April 1, 1968, to April 14, 1969, 259
longshoremen joined Respondent, paying an initiation fee
of $500 or less. From Apnl 14, 1969, until the hearing in this
case, approximately 40 joined, paying an initiation fee of
$1,000. The result of the decasualization program, includ-
ing Respondent 's increase in its initiation fee, has been an
increase in the average number of hours worked by
registered longshoremen.
Other ILA locals along the Gulf coast have varying
initiation fees, none as high as $1,000 . In Houston, Texas,
Local 1273 charges $125, Local 872, $250. The locals in
Corpus Christi and Brownsville, Texas, charge $250 each.
Local 1459 in Mobile, Alabama, charges $200. Local 1303
in Gulfport, Mississippi , charges $500 . Respondent 's sister
local in New Orleans , Local 1418 , charges $500 . Texas,
Alabama , and Mississippi are right -to-work States . Louisia-
na is not.
When a longshoreman registers for work with the
Association , he is informed that there is a union -security
clause in the contract which requires him to join
Respondent or Local 1418 after 30 days if he wants to
continue working . However, he does not necessarily have
30 days thereafter to join . As the clause is interpreted by the
parties to the contract , the 30-day penod begins to run on
the first day a longshoreman , whether registered or casual,
is employed in the port and ends 30 calendar days later
regardless of whether he has had any work in the intenm.
Thus, a longshoreman like Ben Davis , the Charging Party
in this case , who has worked more than a month as a casual
before registering may have used up his 30 days' grace
under the contract before registering . Respondent receives
daily reports of all longshoremen hired . It uses these reports
to enforce the union-secunty clause . Its method is as
follows:
The normal gang consists of 18 men and a foreman, or
gang carrier . When the foreman hires his gang at the daily
shapeup , each man who has an identification card hands it
to the foreman . The foreman returns them at the end of the
day. Union business agents, called delegates , spot check
ships in the port. They ask to see the buttons of all
longshoremen working. They check those who cannot
prove they are a union member by producing a button
against the hiring records furnished by the Association. If
they uncover a man who first worked as a longshoreman
more than 30 days before, they "knock him off, the job by
giving the foreman a "knock off" slip, a form furnished by
the Association. If the delegates are able to produce a
replacement immediately, the nonunion longshoreman is
discharged at once. If not , he is permitted to finish the day.
In either event , the foreman does not return the man's
identification card, if he had one when the day began.
Instead , he turns it in to the Association . It is not
uncommon for a nonunion longshoreman , whether he be a
casual or registered worker, to work several months like
Ben Davis before the delegates catch him and knock him
off.
Davis started working as a casual longshoreman in
November 1968. About 3 weeks later , in December , a stake
closed the port. When the strike ended, Davis went back to
work as a casual . He started saving money for the
downpayment on Respondent's initiation fee. In May 1969
he went to Respondent's office. He was informed that the
initiation fee had been raised to $1,000 and he would have
to pay $500 down. He had saved only $200 . In June,
because work was becoming increasingly difficult for a
casual to get, he decided to register. He went to the
Association's office and filed an application on June 17.
Because he had a medical problem for which he had to be
treated before he could pass the physical examination, he
did not get his identification card until the latter part of
July. He made no effort to join Respondent at any time,
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other than his abortive visit to its office in May. He had
been working as a registered rather than a casual
longshoreman some 14 days when, on August 7, 1969, he
was knocked off in the manner already described. His
foreman kept his identification card and turned it in to the
Association. At the shapeup the next morning Davis asked
the delegate who had knocked him off how he could get his
identification card back. The delegate told him to join
Respondent. Davis sought work as a casual at the shapeup
from time to time thereafter without success for a period of
2-1/2 months. The Association authorized the hiring of
casuals on the following dates in 1969:
July 1, 2, 3, 7, 8, 14, 15, 22, 23, 28, and 29;August 4, 5,
14, 15, 18, 19, 21, 23, and 26;,September 2, 8, 9, 10, 15,
16, 17, and 29;October 6, 24, 27, and 31.
All these dates are weekdays. The Association does not
authorize the use of casual longshoremen on holidays,
Saturdays, or Sundays.
B. Analysis and Conclusions
1. Section 8(b)(5)
Section 8(b)(5) of the Act provides that it shall be an
unfair labor practice for a labor organization
... to require of employees covered by an agreement
authorized under subsection (a)(3) the payment, as a
condition precedent to becoming a member of such
organization, of a fee in an amount which the Board
finds excessive or discriminatory under all the circum-
stances. In making such a finding, the Board shall
consider, among other relevant factors, the practices
and customs of labor organizations in the particular
industry, and the wages currently paid to the employees
affected.
The intent of Congress in including this subsection in the
Taft-Hartley amendments in 1947 is revealed in Senator
Taft's summary of the bill which emerged from the Senate
and House Conference. He pointed out that the House bill
had included, in its so-called bill of rights subsection, a
provision relating to excessive initiation fees. Senate
conferees rejected the bill of rights on the ground that it
would be unwise to authorize the Board to police the
internal affairs of unions without further study of their
structure. They thought the protections contained in
Section 8(a)(3) and Section 8(b)(2) for persons expelled for
reasons other than failure to pay dues and initiation fees
were sufficient. House conferees agreed to drop the bill of
rights. However, they pointed out that, in Senator Taft's
words:
... the Senate amendment did not sufficiently deal
with the situation in which unions wishing to continue a
monopoly of certain trades might pass a resolution
requiring all new members to pay exhorbitant initiation
fees and thereby frustrate the intent of the Senate bill.
The House bill, in effect, limited initiation fees to $25.
1 2 Leg. Hist . of LMRA, 1947, at 1540.
2 Local 153, International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America, UA W-CIO (Richard Stacker, el
at.), 99 NLRB 1419, 1421.
3 Motion Picture Screen Cartoonists, Local 839, I.A. T. S. E. (Animated
Film Producers Association , et al), 121 NLRB 1196.
4 Local 611, International Brotherhood of Teamsters, Chauffeurs.
Senate conferees accepted the principle but opposed setting
a definite figure as impractical. Consequently, Section
8(b)(5) as set forth above was included in the bill finally
enacted.'
In this case the General Counsel conceded that
Respondent's $1,000 initiation fee is nondiscriminatory in
the sense that it has been applied uniformly to all applicants
since April 14, 1969. However, that is not the sense in which
Congress used "discriminatory," as the legislative history
makes clear. The Board recognized that fact in the Stacker
case2 when it said:
... "discrimination" ... is a general term, involving
such flexible concepts as reasonableness and motivation
as well as disparate treatment.
Here, the specific intention of limiting its intake of
members by doubling its initiation fee as part of the
decasualization program suggested by a high official of the
Department of Labor is advanced by Respondent as its
defense. The Board has made intent a controlling factor in
a number of cases. In the Cartoonists case3 the Board said:
The Respondent . . . manifested a clear intent to
accomplish precisely the result which Section 8(b)(5)
seeks to avoid-the maintenance of a closed shop
through the imposition of an initiation fee in an amount
calculated to discourage entrance into the industry.
In the Bakery case 4 the Board adopted the Trial Examiner's
finding, couched in precisely the same language, that the
union had violated Section 8(b)(5). In the Triangle case 5 the
Board said:
... the increase in fee was designed for the purpose
of restraining the Employer in the hiring of part-time
employees who were not union members , or to end the
practice, thereby restricting employment to full-time
union members. We accordingly find the objective
served by the tenfold increase in initiation fees rendered
them discriminatory within the meaning of the Act.
Therefore, the conclusion is inescapable that Respondent's
$1,000 initiation fee, admittedly designed to discourage the
entrance of casuals into the stevedoring industry in New
Orleans, is discriminatory within the meaning of the Act.
This case, however, was tried on the basis that
Respondent 's $1,000 initiation fee is excessive within the
meaning of the Act. That "discriminatory" and "excessive"
are separate grounds for finding a violation is clear. In the
Ferro case6 the Board said:
... Section 8(b)(5) considers discriminatory and
excessive initiation fees equally unlawful.
In the Stacker case, supra, the Board said:
The Respondent also contends that the phrase in
Section 8(bX5), "discriminatory under all the circum-
stances" means "excessive ," although that section
specifically prohibits fees found to be "excessive or
discriminatory under all the circumstances." [Emphasis
supplied.] As no evidence relating to excessiveness was
Warehousemen & Helpers of America (St. Louis Bakery Employers Labor
Council, et al.), 125 NLRB 1392.
5 Television and Radio Broadcasting Studio Employees, Local 804 (Radio
and Television Division of Triangle Publications, et al.), 135 NLRB 632, 636,
affd . 315 F.2d 398 (C.A. 3).
6 Ferro Stamping and Manufacturing Co., 93 NLRB 1459, 1461 (fn. 3).
LONGSHOREMEN 'S LOCAL UNION NO. 1419
adduced, the Respondent apparently concludes that no
violation was established.
We cannot subscribe to the Respondent's proposed
interpretation of the Act. To read the phrase
"discriminatory under all the circumstances" as
"excessive" would not only deny the plain meaning of
the words of the statute, but would be imputing to
Congress a purposeless choice of language. For this
reason, the Board in the Ferro case found disparate fees
to be discriminatory within the meaning of Section
8(b)(5), even though it was conceded that the larger fee
was not excessive.
But they are also interrelated. The first cases decided by the
Board following enactment of Taft-Hartley all involved
only charges that an initiation fee was discriminatory.7
However, the more recent cases have involved the element
of excessiveness as well.
In the Cartoonists case , supra, the union raised its
initiation fee from $50 to $250 in order, as already
indicated, to discourage entrance into the animated cartoon
industry in Southern California. The union's contract
provided for starting wages ranging from $46.10 to $154.38
a week. Other unions in the industry and in the area had
initiation fees ranging from $150 to $250 and contracts
providing for wages roughly comparable to those in the
respondent union's contract. The Trial Examiner found
$250 both discriminatory and excessive. However, the
Board relied principally on the fee's discriminatory
purpose. It pointed out at 121 NLRB 1196-97:
Moreover, the Respondent failed to demonstrate that
the fivefold increase in its initiation fee was prompted
by financial necessity, the cost of providing increased
benefits or any other reason beyond its desire to
promote a more closed union.
It rejected, as unnecessary to its decision, the Trial
Examiner's principal finding relating to excessiveness at
121 NLRB 1203, namely:
If it were a fact, and it was not on July 1, 1956, that
other labor organizations in the same industry repre-
senting employees earning approximately the same
salaries required the payment of an equal initiation fee,
it would remain true, I find, that such a requirement in
the amount stated is excessive and discriminatory
within the meaning of Section 8(bX5).
In the Bakery case , supra, the union raised its initiation
fee from $75 to $250 in order, as already indicated, to
discourage entrance into the mass-produced bread, cake,
and bakery products industry in St. Louis. The respondent
union 's initiation fee was equivalent to approximately 4
weeks' wages under its contract. Other unions in the area
charged approximately half a week's wages. Respondent
did not need $250 per applicant to meet its financial
obligations. The fee was found to be both discriminatory
and excessive.
In the Triangle case, supra, the union raised its initiation
fee from $50 to $500 in order, as already indicated, to
discourage the use of part-time, nonunion employees in the
broadcasting industry in Philadelphia. In overruling the
7 Ferro, supra; Stacker, supra; Food Machinery and Chemical Corporation,
99 NLRB 1430.
677
Trial Examiner's recommendation that the complaint be
dismissed, the Board said at 135 NLRB 636:
In reaching decision under Section 8(b)(5) the Board
is directed by the subsection to consider, "among other
relevant factors, the practices and customs of labor
organizations in the particular industry, and the wages
currently paid to the employees affected." Among
"other relevant factors" we must consider the amount
of increase when the change was effected and the
reasons, so far as they are disclosed by the record, for
making the increase. An increase in initiation fees from
$50 to $500 is not insubstantial and, to one seeking
employment in the industry, may well be so staggering
as to preclude acceptance of employment. Such an
increase demands explanation to bar a presumption
that it is not at least excessive.
After detailing its reasons for finding the initiation fee
discriminatory, the Board went on at 135 NLRB 636-637:
We likewise find the fees excessive under the
circumstances of this case. In making this finding we
have considered that new employees hired by the
Employer in the classifications covered by the contract
had a starting salary ranging from $90 to $95 per
week; 13 that part-time employees had no guarantee of
such earnings and that temporary employees had no
guarantee of continued employment (all new employees
had a 90-day probationary period during which they
were required to make payments on their initiation
fees); that no other union in the Philadelphia area
representing technicians and crewmen charged compa-
rable fees (the next highest fee was $150, charged by
National Association of Broadcast Employees and
Technicians); and the fact that the increase in fees for
employees of the Employer herein effected in Novem-
ber 1957 was tenfold. All of these considerations lead to
the conclusion that the $500 initiation fee was excessive
as well as discriminatory. 14
13 We consider the starting wages or salary of greater significance in
evaluating the initiation fee than wages or salaries that may later be
earned, although we concede relevancy to the latter. We do not, therefore,
find the fact that skilled technicians may earn as much as $200 establishes
that the fee is not excessive.
14 The evidence offered by the Respondent in support of its claim that
the initiation fee was required to insure enough income to enable it to
operate falls short of such support. In any event we find that the Union's
financial problems may not be solved by imposition of a fee which is either
discriminatory or excessive under Section 8(b)(5).
In the NA BET cases the union raised its initiation fee
from a flat $150 for all employees to a sliding scale ranging
from $150 to $1,000. Those earning under $119 per week
paid $150. Those earning from $119 to $168 paid $500.
Those earning from $168 to $212 paid $750. Those earning
$212 or more paid $1,000. The Trial Examiner found at 164
NLRB 244-245:
It is evident that the Respondent had a discriminato-
ry motive in increasing the initiation fees. There can be
no other conclusion when the background of the
Union's action is considered in relation to the scale of
the increases and "the wages currently paid to the
employees affected." In the case of NBC, it is
8 New York Local II, National Association of Broadcast Employees and
Technicians, AFL-CIO (National Broadcasting Company, et al), 164 NLRB
242.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established that, while the pay range of broadcast
technicians is from $123 to $246, approximately 90
percent of the v.r. [vacation-relief] employees were
employed at $130 a week. In the case of ABC, which
maintained the same pay range for broadcast techni-
cians, it is also established that most of the v.r.
employees hired received from $130 to $140 a week.
Since their employment is temporary, moreover, the v.r.
employees cannot normally expect work of more than
several months' duration. The impact upon them of an
increase in initiation fees of more than threefold at the
minimum and more than sixfold at the maximum
hardly needs demonstration. The necessary result
would be to confine vacation relief employment to
broadcast technicians who were already members of the
Union and who would not, therefore, be required to pay
the increased initiation fees. That this was the objective
of the Union is established, moreover, not only by the
background evidence, showing the existence of the
controversy between the Companies and the Union
concerning the vacation relief employees but also by
direct evidence of the Union's discriminatory motive.
s s s s s
The increase in the Union's initiation fees was,
moreover, not only discriminatory but excessive. In
New York City, Chicago, and Los Angeles, the
broadcast technicians, who are represented by locals of
the International Brotherhood of Electrical Workers in
these cities, and whose pay is approximately the same as
that of the broadcast technicians employed by ABC and
NBC, are charged initiation fees of $100 or $125. The
NABET local that represents the broadcast technicians
employed by NBC in Chicago charges an initiation fee
of $25 when the weekly base salary of the applicant
ranges from $119 to $239. The NABET local that
represents the broadcast technicians employed by NBC
in Los Angeles, and whose pay range is the same as in
Chicago, charges an initiation fee of 10 percent of the
monthly base salary, which would amount to approxi-
mately $50. These comparisons more than suffice to
show how excessive the present initiation fees of Local
11 really are. Indeed, it is fair to say that any initiation
fees adopted from discriminatory motives must in the
nature of things be excessive. The discriminatory object
can hardly be otherwise accomplished. It is also
apparent that an increase in initiation fees of more than
threefold at the minimum and more than sixfold at the
maximum must be excessive, at least presumptively.
However, the Union produced no evidence to show that
the increase in initiation fees was justified under all the
circumstances.
It also seems quite immaterial that there is no
evidence that particular applicants for employment
actually refused to accept employment because of the
9 I omit the initiation fees charged by Texas, Alabama, and Mississippi
locals as immaterial since the Board did not rely on analogous figures from
Chicago and Los Angeles in NA BET, supra.
10 Respondent has managed to provide the benefits without charging a
$1,000 initiation fee for at least 25 years. The only evidence offered by
Respondent that financial considerations entered into its decision to
increase the initiation fee is the following:
increase in the initiation fees , or that the Union
attempted to get anyone discharged for failure to pay
the increased initiation fee, or that the Union may have
been willing to accept payment of initiation fees in
installments , or that employees of NBC and ABC may
work overtime, and thus earn pay in excess of their base
salaries . The reasonableness of the initiation fees must
be judged in terms of their possible rather than their
actual effects, and in terms of the power which they
gave the Union rather than in terms of the actual
exercise of that power. [Footnote omitted.]
The Board adopted the Trial Examiner's decision, with a
modification in the order and notice. It noted at 164 NLRB
242,fn.2:
In adopting the Trial Examiner's conclusion that
Respondent 's initiation fees were excessive, we need not
rely on his findings with respect to the fees charged by
NABET locals in Chicago and Los Angeles.
When the lessons of these four cases are applied here the
conclusion is equally inescapable that Respondent's $1,000
initiation fee is excessive. If the present base rate of $4.25
an hour is taken as the "starting wage or salary" considered
most significant by the Board in Triangle, supra, a New
Orleans longshoreman earns $170 in a 40-hour workweek.
Thus an initiation fee of $1,000 is nearly six times greater
than his weekly wage. Respondent's $1,000 initiation fee is
twice that of its sister local in the Port of New Orleans .9
While Respondent stresses the fact that it provides death
and medical benefits for its members over and above those
they received under the contract with the Association, it has
not proved that the increase from $500 to $1,000 was
required to pay for them or to meet any of its other
financial obligations.10 Moreover, the discriminatory
motive for the $1,000 fee is admitted. As NABET, supra,
points out, any initiation fees adopted from discriminatory
motives must in the nature of things be excessive. The
discriminatory object can hardly be otherwise accom-
plished. Consequently, it is obvious that Respondent's
$1,000 initiation fee is excessive as well as discriminatory
within the meaning of Section 8(b)(5). In addition, as
evidenced by Ben Davis' experience, it obviously restrains
and coerces casual longshoremen in the exercise of their
right to join Respondent. Therefore, I find that it violates
Section 8(b)(1)(A) of the Act as well as Section 8(b)(5).
2. Section 8(b)(2)
The complaint also alleges that Respondent has violated
Section 8(b)(2) and (1)(A) of the Act by causing employer-
members of the Association to terminate and/or refuse to
employ Ben Davis "pursuant to its demand that Davis pay
the $1,000 initiation fee . . . and because of Davis' refusal
to pay said initiation fee." The General Counsel's theory is
a derivative one, requiring a preliminary finding that
Respondent has violated Section 8(bX5). Davis was
Q. . . . In recent years, has the price of drugs and medicine gone
up with the rest of the price structure in our inflationary stage?
A. Yes, it has gone up tremendously.
TRIAL EXAMINER: That almost falls in the area of judicial notice,
doesn't it?
MR. HESS : Yes, Sir.
LONGSHOREMEN 'S LOCAL UNION NO. 1419 679
knocked off on August 7, 1969, pursuant to a valid union-
security clause. He has since failed to get employment as a
casual because he lost his identification card through the
legal operation of that clause. The only way he could have
retained his identification card and thus have been hired
along with others in the registered work force ahead of
others in the casual group to which he reverted was by
paying the initiation fee and joining Respondent. There-
fore, the initiation fee being illegal, he has failed to obtain
work since August 7 because Respondent has denied him
membership on a ground other than his failure to tender a
nondiscriminatory and nonexcessive initiation fee uniform-
ly required as a condition of acquiring or retaining
membership.
The logic of this position is also inescapable. I have
already found that Respondent's initiation fee violates
Section 8(b)(5) and 8(b)(1)(A). I find that it also caused
members of the Association to discriminate against Davis
in the period following August 7 by not hiring him in
violation of Section 8(a)(3), thereby violating Section
8(b)(2) of the Act.
Upon the foregoing findings of fact, and on the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. The New Orleans Steamship Association is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. General Longshore Workers, International Long-
shoremen's Association, Local Union No. 1419, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of
the Act.
3. By increasing its initiation fee from $500 to $1,000 on
Apri114, 1969, and by maintaining it at that level thereafter,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(b)(5), (2), and (1)(A) of the Act.
4. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section
8(b)(5), (2),and'(1),(A) of the Act by charging an initiation
fee of $1,000, I will recommend first that it cease and desist
from engaging in that or like or related activities. The only
facet of this record which presents even the slightest
element of doubt is the question of whether Ben Davis
actually lost work after August 7, 1969, because he was a
casual and not a registered longshoreman. I have credited
Davis' testimony that he attended the shapeup without
success for some 2-1/2 months after August 7. I have also
credited Respondent's evidence that the hiring of casuals
was authorized by the Association on some days in this
period. I do not consider this a credibility conflict which
must be resolved on the basis of the record made before me.
There are several possible explanations for this apparent
discrepancy. I do not understand Davis' testimony to mean
11 In the event no exceptions are filed as provided by Section 10246 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
that he showed up for the shapeup each and every day. It
may well be that he did not show up on one or more days
on which all casuals present were hired. In that case, he
would not be entitled to recover for not working on that
particular day. On the other hand, he may have been
present on days when some but not all casuals present for
the shapeup were hired. He would be entitled to a recovery
for those days, as well as any day on which he showed up
and all registered longshoremen were hired, since the
central fact about the hiring system is that all registered
longshoremen are offered employment before any casuals
are hired. In any event, this is the sort of problem which is
best left to the compliance stage of Board litigation.
Therefore, I will recommend that Davis be made whole by
Respondent for any earnings he may have lost through
failing to be hired as a registered longshoreman between
August 7, 1969, and the date on which Respondent
undertakes to comply herewith. Such sum shall be less
Davis' net earnings during this period. Backpay and
interest thereon shall be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716. There is
no evidence in the record that any individual other than
Davis lost work as a result of Respondent's increased
initiation fee. Therefore, I will not recommend that the
make whole provision of this 8(b)(2) remedy extend to
longshoremen in New Orleans other than Davis. I will,
however, recommend that Respondent notify the Associa-
tion that it has no objection to the Association's returning
Davis' identification card to him and that it will not attempt
to invoke the union-security clause of its contract with the
Association in order to knock him off for a period of 30
days thereafter in order to give Davis an opportunity to join
Respondent by paying a nonexcessive and nondiscrimina-
tory initiation fee. Finally, the General Counsel concedes
that an initiation fee of $500 is not excessive within the
meaning of Section 8(b)(5) in this case. Therefore, I will
recommend that Respondent reimburse any members for
any sums they may have paid as initiation fees in excess of
$500 since April 14, 1969, with interest thereon to be
computed as prescribed in Seafarers International Union of
North America, Great Lakes District, AFL-CIO, 138 NLRB
1142, footnote 3.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in this case , and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following:
RECOMMENDED ORDER ii
General Longshore Workers, International Longshore-
men's Association, Local Union No. 1419, AFL-CIO, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Charging an initiation fee of $1,000.
(b) Causing or attempting to cause the New Orleans
Steamship Association, in violation of Section 8(a)(3) of the
Act, to refuse employment to Ben Davis or any other
longshoreman who has been denied membership because of
shall, as provided in Section 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 deemed waived for all purposes.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the operation of a discriminatory and/or excessive
initiation fee.
(c) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole Ben Davis for any loss of earnings he
may have suffered by reason of Respondent's causing him
not to be hired as a registered longshoreman after August 7,
1969, in the manner set forth above under "The Remedy."
(b) Notify the New Orleans Steamship Association that it
has no objection to the Association's returning Davis'
identification card to him and that it will not attempt to
invoke the union-security clause of its contract with the
Association in order to knock him off for a period of 30
days thereafter in order to give Davis an opportunity to join
Respondent by paying a nonexcessive and nondiscrimina-
tory initiation fee.
(c) Refund to any members who have been charged
initiation fees of more than $500 any amounts they have
actually paid in excess of $500 in the manner set forth
above under "The Remedy."
(d) Post at Respondent's office or union hall copies of the
attached notice marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director for
Region 15, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Mail to the Regional Director for Region 15 copies of
the attached notice marked "Appendix" for posting by the
New Orleans Steamship Association at its place of business
in New Orleans, Louisiana, in places where notices to
employees are customarily posted, if the said Employer is
willing to do so. Copies of said notice to be provided by the
Regional Director, after being signed by a representative of
Respondent, shall be forthwith returned to the Regional
Director for said posting.
(f) Notify the Regional Director for Region 15, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.13
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT charge an initiation fee of $1,000.
WE WILL NOT cause or attempt to cause the New
Orleans Steamship Association to refuse employment to
Ben Davis or any other longshoreman who has been
denied membership because of the operation of a
discriminatory and/or excessive initiation fee.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of rights guaranteed
in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement made in
accordance with the provisions of Section 8(a)(3) of the
Act requiring membership in us as a condition of
employment.
WE WILL make whole Ben Davis for any loss of pay
he may have suffered as a result of our causing him not
to be hired as a longshoreman after August 7, 1969.
WE WILL notify the New Orleans Steamship
Association that we have no objection to the Associa-
tion's returning Ben Davis' identification card to him
and that WE WILL NOT attempt to invoke the union-
security clause of our contract with the Association in
order to knock him off for a period of 30 days thereafter
in order to give him an opportunity to join us by paying
a nonexcessive and nondiscriminatory initiation fee.
WE WILL refund to any of our members who have
been charged initiation fees of more than $500 any
amounts they have actually paid in excess of $500 with
interest at 6 percent.
Dated By
GENERAL LONGSHORE
WORKERS, INTERNATIONAL
LONGSHOREMEN'S
ASSOCIATION, LOCAL UNION
No. 1419, AFL-CIO
(LABOR ORGANIZATION)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Region
15, T6024 Federal Building (Loyola), 701 Loyola Avenue,
New Orleans, Louisiana 70113, Telephone 504-527-6361.