Northern Stevedoring & Handling Corp.

National Labor Relations Board - Board DecisionsJun 24, 1963

143 N.L.R.B. 8 (N.L.R.B. 1963)

S DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL bargain collectively , upon request , with International Union of Operating Engineers , AFL-CIO, as the exclusive bargaining representative of all employees in the bargaining unit described below concerning wages, rates of pay , hours of employment, and other conditions of employment and, if an understanding is reached , embody it in a signed agreement . The bar- gaining unit is: All production and maintenance employees of Manning , Maxwell & Moore , Incorporated , in its Alexandria , Louisiana , plant , excluding office clerical employees , foremen, leadmen , and guards and all other supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively as aforesaid , nor will we, in any like or related manner , interfere with, restrain , or coerce our employees in the exercise of their right to bargain collectively through the said Union or any other labor organization of their own choosing. MANNING, MAXWELL & MOORE, INCORPORATED, Employer. Dated------------------- By-------------------------------------------(Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered , defaced , or covered by any other materials. Employees may communicate directly with the Board 's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana , 70113, Telephone No. 529-2411 , if they have any question concerning this notice or com- pliance with its provisions. Northern Stevedoring & Handling Corp ., Rothschild Alaska Stevedoring Company, Inc., Alaska Freight Lines , Inc. and International Longshoremen 's & Warehousemen's Union, Local 1-82, and International Longshoremen's & Warehousemen's Union and Bernard Hulm . Cases Nos. 19-CA-1441 and 19-CB- 464. June 24, 1963 DECISION AND ORDER On May 15, 1962, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents, Northern Stevedoring & Handling Corp., herein called Northern; Rothschild Alaska Stevedoring, Inc., herein called Rothschild; Alaska Freight Lines, Inc., herein called Alaska Freight; International Longshoremen's & Warehousemen's Union, Local 1-82, herein called Local 1-82; and International Longshoremen's & Ware- housemen's Union, herein called ILWU, had not engaged in the unfair labor practices alleged in the consolidated complaint, and recommend- ing that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, both the General Counsel and the Respondent Rothschild filed exceptions to the Intermediate 143 NLRB No. 8. NORTHERN STEVEDORING & HANDLING CORP., ETC. 9 Report, and briefs in support of their respective positions. The Re- spondents Local 1-82 and ILWU joined in filing a brief in opposition to the exceptions filed by the General Counsel. On February 7, 1963, the Board issued a notice to show cause why it should not find that the Respondents Northern, Alaska Freight, and Local 1-82 had violated the Act by discriminating against the Charg- ing Party and why the Board should not dismiss the remaining allega- tions of the complaint. Thereafter, the General Counsel, Respondents Northern and Alaska Freight, and Respondent Local 1-82 filed mem- orandums in response to the notice to show cause. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in these cases, including the responses to the notice to show cause. The Board hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, but only for the reasons indicated below. 1. Discrin ination against HuM: The complaint alleges, inter alia, that Respondents violated Section 8(a) (3) and (1) and 8(b) (2) and (1) (A) of the Act by the discriminatory placement of one Murray Bilby over Bernard Hulm, the Charging Party, on a preferred dis- patch list. This preferred list was established and maintained by the Joint Port Labor Relations Committee, consisting of representatives from Respondent Local 1-82 and from the Respondent Employers, pursuant to the parties' contractual agreement for an exclusive hiring hall. In February 1957, the joint committee placed Bilby on the pre- ferred list ahead of Hulm, who, at that time, was top man on the temporary labor pool list. Bilby, a member of Respondents' sister local, had been a longshoreman since shortly after World War II. Hulm, who was not a union member, began working as a longshoreman in 1951. It is the contention of the General Counsel that Respondents' reg- istration of Bilby on the preferred list was a result of his union membership and constituted discrimination against Hulm because of Hu'm's lack of membership.' In support of this contention, the Gen- eral Counsel cites the contract between the parties and the working rules of the joint committee, which provided generally that persons who had left the industry lost their seniority, and that advancement to the preferred list was to'be made from the top man on the temporary 1 The complaint also alleges that Respondents discriminated against Hulm because he had previously filed charges under the Act against Local 1-82. With respect to this alleged violation of Section 8(a) (4), the record contains no evidence in support thereof. The record simply shows that in the summer of 1955, Rulm filed a charge against Local 1-82 (Case No 19-CB-394), which was subsequently dismissed for lack of supporting evidence, and that no appeal therefrom was ever taken by Hulm. From the facts thus pre- sented , we find no evidence of a violation of Section 8(a) (4) of the Act. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor pool list. As Bilby allegedly had left the industry for a short period prior to 1956, and Hulm was top man on the temporary labor pool list, the General Counsel argues that Bilby's placement on the preferred list was not in conformity with the working rules and, therefore, was discriminatory. We do not believe that the aforementioned evidence, in view of the record as a whole, is sufficient to establish discrimination on the part of the Respondents. Thus, the record shows that Bilby's status was given consideration for some time prior to February 1957. In 1955, Local 1-82 began correspondence with the ILWU and the Regional Office of the Board concerning not only the status of Bilby, but also the setting up of a nondiscriminatory hiring hall .2 Perry Stockton, Northern's representative on the joint committee, testified that it was Bilby's seniority, exceeding that of the top man of the temporary labor pool list, which, from the Employers' point of view, had qualified him for reinstatment on the preferred list. The minutes of the Joint Port Labor Relations Committee of February 10, 1957, support Stockton's claim that seniority was the controlling factor. Thus, the minutes read: Research shows his [Bilby's] seniority exceed any TLP's. Bilby had been trying repeatedly to get back on. Gen discussion re- gards availability. Stockton O.K.'s Bilby. Acceptable to all. Delaney-How about reaction of TLP's? Mac Sw. says seniority evident. In view of these considerations, we cannot say from the evidence presented that Bilby's union membership, rather than his greater seniority, was the reason for his preference over Hulm. Accordingly, as we find that the General Counsel has not established discrimination against Hulm by a preponderance of the evidence, we shall dismiss this portion of the complaint. 2. Dues and fines imposed on nonmembers and discrimination in grievance proceedings: The complaint also alleges that the Respond- ent Employers and Unions violated Section 8(a) (3) and (1) and 8(b) (2) and (1) (A) of the Act, respectively, by maintaining contract clauses which required nonmembers to pay grievance processing fees not required of members, and by requiring all nonunion persons regis- 2 In this regard, the Respondents corresponded with the Regional Office concerning the adoption of addendum No. 2 to their contract which established the dispatch procedure based on seniority and continuity of employment. In response , the Regional Office made adjustments in the list and acknowledged the cooperative efforts of the Union and Em- ployers in keeping the procedure fair and legal. Furthermore , the charges in Case No. 19-CB-394 brought to the Union 's attention the fact that there was some question con- cerning Bilby 's status . In September 1955, the ILWII notified the Board, by letter, that Local 1-82 was hesitant to accept Bilby's transfer from a sister local "in case his seniority does not hold up," and requested the Board 's opinion as to Bilby's seniority. Subsequently , all parties were notified that no complaint would issue on the charges in that case. NORTHERN STEVEDORING & HANDLING CORP., ETC. 11 tered at the exclusive hiring hall to pay dues in amounts in excess of those required of union members. In dismissing these portions of the complaint, the Trial Examiner concluded that the record did not con- tain evidence of actual discrimination. We agree that these allega- tions of the complaint should be dismissed, but for the following reasons. In its notice to show cause, referred to above, the Board pointed out that it had considered (1) the length of time which had elapsed since the filing of the charges and the issuance of the complaint; (2) the fact that the contract provisions in question were no longer in effect; and ($) that the hiring lists had been consolidated in 1959 with all non- members becoming members of the Union. The Board in its notice therefore asked why it should not dismiss these portions of the complaint. In responding, the General Counsel stated he did not oppose dismis- sal of the complaint in the aforementioned respects, particularly in view of the intervening passage of time and the changes in circum- stances rendering remedial action now unnecessary. For the reasons stated in the notice, therefore, and as the General Counsel has voiced no objection, we shall dismiss these allegations of the complaint. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE An original charge against the Respondent Local was filed by Bernard Hulm, an individual, on February 19, 1957. A first amended charge was filed by Hulm on July 21, 1958, against both the local and the International . An original charge against the three above-named Respondent Employers was filed on February 19, 1957. An order consolidating the above-entitled cases, a consolidated complaint, and a notice of hearing thereon were issued and served on July 23, 1958, by the General Counsel of the National Labor Relations Board . Answers were thereafter filed by each of the Respondents . The complaint alleges and the answers deny that the Respondents have engaged in and are engaging in unfair labor practices (by the Employers ) in violation of Section 8(a)(1), (3), and (4 ) and (by the Unions) in violation of Section 8(b)(1) (A ) and (2 ) of the National Labor Relations Act, as amended . A number of orders were issued rescheduling the hearing . Finally, on March 6, 12, and 13, 1962, a hearing was held in Seattle, Washington , and Seward, Alaska, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented by counsel and were afforded full oppor- tunity to present evidence pertinent to the issues, to argue orally , and to file briefs. Briefs from all parties have been received and considered. Disposition of the Respondents ' motions to dismiss the complaint , upon which ruling was reserved at the conclusion of the hearing, is made by the following find- ings, conclusions , and recommendations. Upon the record thus made, and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT EMPLOYERS Northern Stevedoring & Handling Corp. is a corporation authorized to carry on a business in the State of Alaska ( and until its admission as a State, in the Territory of Alaska ). Each year from 1957 to the present it has performed 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stevedoring services in connection with the moving of goods into and out of Alaska, the annual revenue for such services amounting to or exceeding $50,000. Rothschild Alaska Stevedoring Company, Inc., is a corporation authorized to carry on a business in the State of Alaska (and until its admission as a State, in the Territory of Alaska). It is engaged in stevedoring and terminal services. From September 1, 1957, to January 1958 it performed terminal services and dockwork for the Alaska Railroad, and for the performance of such services received revenue of more than $100,000. Alaska Freight Lines, Inc., is a corporation authorized to carry on a business in the State of Alaska (and until its admission as a State, in the Territory of Alaska). During 1957 it transported goods and freight between Seattle, Washington, and Seward, Alaska, and for such services received revenue of more than $100,000. At times relevant to the issues raised in the complaint these three Respondents were engaged in commerce within the meaning of the Act. II. THE RESPONDENT UNIONS International Longshoremen's & Warehousemen's Union, Local 1-82, and In- ternational Longshoremen's & Warehousemen's Union, are labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Setting and issues Instead of before this Board, the fossilized issues unearthed here might more appropriately have been submitted to the Paleontological Department of the Smith- sonian Institution. More than 5 years have intervened between the filing of the original charge and the holding of a hearing. The Trial Examiner is inclined to agree with counsel for the Respondents that the complaint should be dismissed because of the unreasonable delay in bringing it on for hearing and because such delay is contrary to the mandate of Section 6(a) of the Administrative Procedure Act, which provides that: . Every agency shall proceed with reasonable dispatch to conclude any matter presented to it except that due regard shall be had for the convenience and necessity of the parties of their representatives... . Counsel point to Deering Milliken, Inc. V. Johnston, 295 F. 2d 856, 860-861 (C.A. 4, 1961), where the court, in commenting upon this section, said: This is no precatory declaration. It is an enforceable command, made ex- pressly so by Section 10(e) of the Administrative Act. Since the question raises a point of policy, however, it appears to be within the province of the Board, not of the Trial Examiner, to pass upon its merits. The issues raised by General Counsel at the hearing may all be said to stem, at least by indirection, from charges filed by longshoreman Hulm, back in February 1957, against both the Respondent Local and the Respondent Employers , claiming that one Murray Bilby had been placed on a hiring list at Seward, Alaska, ahead of him. Not until more than a year had passed (on July 21, 1958) was the Re- spondent International brought into the picture by way of an "amended" charge. This amended charge, in addition to a repetition of the Bilby-Hulm point, alleged that both Respondent Unions unlawfully caused "preference to be given their members and adherents in work assignments." With the passing winds of time since the filing of such charges (which cited but one specific act of discrimination as being unlawful ), and by some process not revealed by the record , various other issues found their way into and became seeded in the complaint. Without here passing upon the merit of procedural points raised by the Respond- ents as to whether certain allegations of the complaint against one or all are suffi- ciently grounded on charges, the Trial Examiner notes that in his brief General Counsel cites the following as being the issues for determination: (1) Whether the Respondents, by preference accorded Murray Bilby, unlawfully discriminated against Bernard Hulm. (2) Whether the Respondent Unions violated Section 8(b)(1)(A) and (2) of the Act by requiring all persons registered at the exclusive hiring hall in Seward to pay dues and fines to the Union. NORTHERN STEVEDORING & HANDLING CORP., ETC. 13 (3) Whether the Respondent Unions violated Section 8 (b) (1) (A) of the Act by practices discriminating against nonmembers in the processing of grievances. It would seem appropriate that consideration here be given only to these three issues: B. The alleged discrimination against Hulm In quick summary of background facts, for many years a local of the ILWU has represented the longshoremen at Seward and has operated at this port an exclusive hiring hall. At least since 1955 the hiring lists have been drawn up jointly by the employers and the local. That year a joint labor relations committee, composed of representatives of both the local and the employers, set up two lists (at least insofar as the issues here are concerned) of job applicants, placement upon these lists being in accordance with seniority in the industry. A "preferred" list was designated as the "basic working force"; another as a "temporary labor pool." According to a written agreement between employers involved and the local, advancement to the "preferred list" was to be made from the senior names of the "temporary" list except for registered men in other ports with greater seniority than those on the temporary list. Although this agreement, in evidence, does not so state specifically, it was admitted by Perry Stockton, district manager of Northern and since 1957 a management rep- resentative on the joint committee , that "people leaving the industry lost their seniority." The Bilby-Hulm controversy arose out of action by the joint committee in Febru- ary 1957, when it placed Bilby on the preferred list and did not place Huhn on it. While General Counsel apparently concedes that Bilby began longshore work at Seward several years before Hulm did, it is the nub of his contention that, because for a period he did not work as a longshoreman, he "left" the industry and thereby lost all his previously accumulated seniority. Bilby (who was not called as a wit- ness, his whereabouts apparently being unknown) began work as a longshoreman sometime before 1947. Around 1951 he was made a foreman. In 1953 he was fired as a foreman, but continued to work as a longshoreman on a "traveler" card until sometime in 1955. For undetermined periods thereafter, and until late in 1956, he apparently did other work, not on the waterfront. In the latter part of that year he was referred to work on the docks on the basis of his traveling card, and in February 1957, by formal action of the joint committee placed on the "preferred" list. Hulm who had not begun work on the waterfront until 1951, remained at the top of the "temporary" list, and he promptly filed his charge of discrimination. Sometime thereafter, apparently in 1959-3 years before the hearing-the two lists were consolidated into one and since then Hulm appears to have been on the fully registered list. In his brief, General Counsel states: ". . the discrimination alleged in the com- plaint relates to preference given to Murray Bilby over Bernard Hulm." Turning to the complaint, the Trial Examiner notes that its paragraph XVIII specifically claims that the Respondents have "denied" Hulm "work opportunities commensurate with those of longshoremen on" the preferred list. He also notes that, so far as he can discover, the record contains not an iota of evidence that Hulm has ever been "denied" any work on the waterfront, whatever list he was on. The Trial Examiner finds himself in agreement with the succinct remark of At- torney Steere, in his brief: Discrimination does not exist in a vacuum . It consists of an act or practice having no legal justification that results in a preference of one person to the injury of another. While the charging party Hulm was a witness in the case and testified on behalf of General Counsel it must be noted that he gave no evidence that the acts in question in any way decreased his opportunity to work. The record is devoid of evidence of injury to him. There being no evidence that on any occasion , at any time, was Hulm denied employment while Bilby received it, the question pops up as to just what it is that General Counsel seeks to remedy. Does he seek to have the local turn back history for 5 years, set up two lists again, and have Hulm placed on the "preferred" list- where he now is and has been for the past 3 years? In short, the Trial Examiner concludes that the evidence falls short of establish- ing that any discrimination of a nature which now can reasonably be remedied has ever been visited upon Hulm, whether the joint committee erred in putting Bilby on the top list or not. And evidence plainly is lacking to support any claim that as a result of Bilby 's being placed on the preferred list Hulm lost either work oppor- tunity or work itself. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The allegation of "discrimination " being unsupported , it appears pointless to con- sider ancient and bygone motives of the joint committee.' C. The issue of dues and fines From a date 6 months before the original charge was filed and until sometime in 1959 when all registered longshoremen at Seward became union members, non- members paid $3 a month for what is sometimes called "referral privileges" as their share of the hiring hall expenses. This monthly amount was equal to that which members paid as union dues. Nonmembers, however, were not required to pay such fees unless they worked a certain number of hours during the month, nor were they required to pay fines and assessments as were union members. General Counsel contends that such referral fees were unlawful. The Trial Examiner cannot agree. In the most recent Board decision on this issue, Houston Maritime Association, Inc., and Master Stevedore Association of Texas, 136 NLRB 1222, issued April 24, 1962, it is true that a majority of the Board reversed the same Trial Examiner and found that the referral fees therein involved were unlawful. Two members, ac- cording to the decision, reached their conclusion "in the light of illegal discriminatory practices." Two other members based a like conclusion on the fact that "non- union applicants (were required) to pay a service or referral fee for the privilege of taking their place at the bottom of the referral list because they lacked union membership." And the four members joined in the conclusion that the Act was violated "by exacting a service fee from nonunion applicants as a condition of employment and then treating them as second-rate citizens for referral purposes." None of the factors cited by the Board majority as supporting their conclusions, however, are established by the evidence in this case. As noted in the section above, no discrimination in the hiring of Hulm or any other individual is found herein. And the Trial Examiner locates no evidence in the record regarding the membership or nonmembership of any of the individ- uals (except Hulm) on the hiring list or lists before 1959. Since that year, as noted, all registered longshoremen have been union members. Furthermore, the Trial Examiner has serious doubt that the question of such fees is properly before the Board. None of the charges raises any question about the legality of the contract between the local and the employers-either in gen- eral or in any particular. D. The issue of grievance costs The third issue cited by General Counsel in his brief apparently stems from section 7, A, (2), (f), of the 1957 contract between the Unions and Northern, which states: Any individual non-Union registered dock worker may choose to present any grievance as an individual through the applicable grievance machinery of the Agreement as set forth in Section 7B and in such event shall pay to the Union its cost of participating in the investigation, adjudication and any Arbitration of his grievance. The complaint raises the question of the legality of such a clause in the contract, an amendment to the complaint on the date of the opening of the hearing raised, for the first time, the question of "enforce[ment]" of this provision. Another al- legation of the complaint alleges that the inclusion and enforcement of this provi- sion both caused the employer parties to discriminate against employees in viola- tion of Section 8(a)(3) of the Act, and also coerced employees in violation of Section 8 (b) (1) (A) of the Act. The above-quoted language appears in the 1957-58 contract, there can be no question about that fact. But the Trial Examiner fails to find any evidence that any nonunion longshoremen, at any time, were ever required to pay a "grievance fee," were ever asked to, or ever filed a grievance. And, as noted above, the entire question became moot in 1959, when there were no more "nonunion" longshore- men at Seward. 'Certainly as to the Respondent Rothschild, in the opinion of the Trial Examiner , should the allegation of discrimination against Haim and in favor of Bilby be dismissed outright. As noted above, Rothschild did not appear on the scene in any fashion until late in 1957, and ;then only for a period of 3 months . It had no part in the joint committee which prepared the hiring list. There is no evidence as to whether it did or did not hire either Bilby or Hulm, or whether during its brief operation at Seward there was a job oppor- tunity for either longshoreman. COLLINS & AIKMAN CORP. 15 The Trial Examiner concludes and finds, in the absence of any evidence of actual discrimination , that this allegation has not been sustained. And for the reason stated in the section of this report immediately above, he believes that this ques- tion , not having been raised either directly or indirectly , expressly or by implica- tion, in any of the charges is not properly before the Board. E. Summary Having concluded and found that the evidence fails to support the allegations of unfair labor practices on points claimed by General Counsel in his brief , the Trial Examiner will recommend that the complaint , in its entirety , be dismissed. RECOMMENDATIONS On the basis of the foregoing findings and conclusions , the Trial Examiner recom- mends that the complaint be dismissed in its entirety. Collins & Aikman Corp . and Textile Workers Union of America, AFL-CIO-CLC. Cases Nos. 10-RC-5338 and 10-CA-5175. June 24, 1963 DECISION AND ORDER On April 11, 1963, Trial Examiner Sidney Sherman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following addition, and the limitations concern ing the election.' We hereby correct the apparently inadvertent error in the Intermediate Report, under "The October 10 notice" where the letter is referred to as the October 10 letter when the date as shown by the record should have been October 3. Member Leedom does not agree that Respondent violated the Act in connection with the letter distributed on October 3 or the notice distributed on October 10. There is no con- tention or evidence that either document is in any respect factually inaccurate. Nor is there any language in either document which, fairly interpreted , can be said reasonably to imply that Respondent would use its power to the employees ' disadvantage , should they select union representation . In these circumstances , Member Leedom believes that the distribution of both documents is protected by Section 8 ('c) of the Act, which bars basing an unfair labor practice finding on "the expressing of any views , argument , or opinion, or the dissemination thereof . . ." if, as here, " . . . such expression contains no threat of reprisal or force or promise of benefit." He therefore dissents from the failure of his colleagues to dismiss the allegations of the complaint pertaining to these documents. 143 NLRB No. 2.