Pacific Maritime Association

National Labor Relations Board - Board Decisions

Nov 23, 1971

194 N.L.R.B. 294 (N.L.R.B. 1971)

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacific Maritime Association and Wayne Blackwell
International Longshoremen's and Warehousemen's
Union, Local No. 13 and Wayne Blackwell. Cases
21-CA-9597 and 21-CB-3803
November 23, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 26, 1971, Trial Examiner David E. Davis
issued the attached Decision in this proceeding.
Thereafter, the General Counsel filed exceptions and
a supporting brief, and Respondents filed cross-
exceptions and supporting briefs.
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions to the extent
consistent herewith,' and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
1 In adopting the Trial Examiner's conclusion that Respondent
Association and Respondent Union did not violate Secs. 8(a)(1) and (3)
and 8(b)(1)(A) and (2) of the Act, we do so based on the General Counsel's
failure to meet his burden of proving that, as alleged in the complaint,
terminal warehousemen who were members of Respondent Umon were
unlawfully dispatched to longshore work in preference to visiting limited
registered Class "B" longshoremen and extra longshoremen. We note that
the General Counsel's witnesses testified that they had arrived late at the
dispatch hall and had no knowledge of who had been dispatched prior to
their arrival, they had not made known to the dispatchers their availability
for work, they did not know whether terminal warehousemen who were
being dispatched from the hall while they were present were dispatched to
nonlongshore work or to longshore work, and they had no independent
recollection of those days on which they failed to get work other than their
logbooks which contained patently maccurate entries. Nor does the other
evidence establish a continuation of the practice of unlawful preferences
which the Board found to exist in International Longshoreman's and
Warehousemen's Union, Local No. 13 (Pacific Maritime Association), 192
NLRB No 50. In these circumstances, we find there is insufficient
evidence that Respondents engaged in conduct violative of the Act
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner: These consolidated
cases were tried before me at Los Angeles, California, on
April 5, 6, 7, 8, and 13, 1971. The charges were filed on
October 16, 1970, by Wayne P. Blackwell, an individual,
and the consolidated complaint was issued on January 21,
1971. The charge in Case 21-CA-9597 alleged that within
the past 6 months the Pacific Maritime Association, and its
member companies, herein collectively referred to as
Respondent Association or Respondent Employer, violated
Section 8(a)(1) and (3) by failing and refusing to hire 11
named and other unnamed employees because they were
not members of International Longshoremen's and Ware-
housemen's Union, Local No. 13, herein called Respondent
Union. The charge in Case 21-CB-3803 alleged in similar
language that Respondent Union violated Section
8(b)(1)(A) and (2).
The chief allegations of the consolidated complaint may
be summarized as follows:
1. Respondents are bound by a collective-bargaining
agreement which provides for hiring of longshoremen
through a jointly operated hiring hall.
2. The agreement provided that the order preferences
for dispatch from the hiring hall shall be as follows: (a) "A"
longshoremen, (b) "B" longshoremen, and (c) "extra"
longshoremen.
3. That from 1966 to August 1969 the 11 named
employees and other unknown persons "were accorded, by
Respondents, the status of being dispatched after the
dispatch of `B' longshoremen and before the dispatch of
`extra' longshoremen."
4. Respondent Union is also a party to a collective-
bargaining agreement with certain employers principally
engaged in warehouse operations in the Los Angeles area
who are not engaged in longshore and stevedoring
operations.
5. Respondent Union, upon request, dispatches to the
employers referred to in paragraph 4, warehousemen and
warehouse workers referred to as "terminal warehouse-
men" who are required to be members of Respondent
Union.
6. Respondent Union at all times material herein has
dispatched and continues to dispatch "terminal warehouse-
men" to longshore employers for longshore work ahead of
the persons named in the complaint and other unknown
persons and "extra" longshoremen who are not members of
Respondent Union.
7. Prior to March or April 1969, Respondent Union
solicited applicants for membership as "terminal ware-
housemen" and accepted approximately 1,000 who were
required to be sponsored by a past or present member of
Respondent Union.
Only the acts described in paragraph 6, above, (5(e) in the
complaint) were alleged as constituting violations of the
Act. Respondents, while admitting some of the allegations
of the complaint, denied that they had committed any
violations. Respondent Association, in addition, pleaded
that even if violations of the Act were found that it should
be exonerated because of extenuating circumstances.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, Respondent
Association, and Respondent Union, I make the following:
194 NLRB No. 42
PACIFIC MARITIME ASSOCIATION 295
FINDINGS OF FACT
1. JURISDICTION
Respondent Association, a California corporation with
places of business in Washington and San Francisco,
California, is composed of various employer-members
engaged in longshore and stevedoring operations in the
vicinity of Long Beach and Los Angeles, California, and
other Pacific coast ports. It acts in behalf of its members as
their collective-bargaining representative in a multiemploy-
er collective-bargaining unit. The employer-members of
Respondent Association annually receive in excess of
$50,000 for services they perform in connection with the
transportation of goods and passengers between the State
of California and other States and foreign countries.
Respondents admit and I find that Respondent Association
and its employer-members individually and collectively are
now, and have been at all times material herein, employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that Respondent Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement and Preliminary Findings
The General Counsel requested that I take official notice
of the Decision of Trial Examiner Alexandre in Cases
21-CB-3457 and 21-CB-3494 .1 I declined in accordance
with standing Board policy that a Trial Examiner's
Decision which is appealed to the Board does not constitute
a final decision . The General Counsel then sought to
introduce certain evidence which was stipulated into the
record by the parties during the course of the hearing in the
proceeding before Trial Examiner Alexandre. Upon
objection by the Respondent Association and Respondent
Union, I rejected the proffered evidence and placed the
documents in the rejected file of exhibits.2
In support of the admissability of the rejected documents,
the General Counsel in his brief cited certain cases
including Douds v. Seafarers ' International Union, 148
F.Supp . 953 (D .C.E.N.Y.). Because of the Douds case and
other case cited therein , I now reverse my ruling with regard
to the admissability of rejected exhibits proffered by the
General Counsel as General Counsel's Exhibits 2,3
9(a)(b)(c), and 10, and they are admitted in evidence: 4 On
the other hand, I affirm my refusal to take official notice of
the Decision of Trial Examiner Alexandre in the case
referred to above as TXD-(SF)-166-70,
B. Section 10(b) and the Applicable Law
The proviso to Section 10(b) of the Acts circumscribes
and limits not only the issuance of a complaint by the
General Counsel but also precludes the Board from finding
that any event or conduct occurring 6 months prior to the
filing of the charge constitutes an unfair labor practice. As
the charges in the instant cases were filed on October 16,
1970, the 10(b) limitation period commenced on April 16,
1970.
Under the circumstances, I am, therefore, precluded from
finding an unfair labor practice based on any conduct or
event occurring prior to April 16, 1970. The General
Counsel conceded as much when during the course of his
examination of witnesses concerning events antedating
April 16, 1970, he repeatedly stated that such testimony was
offered as background only. The testimony therefore was
received over the objections of Respondent for that limited
purpose. General Counsel's Exhibit 2, however, was
proffered on the basis that it contained admissions by
Respondent Association and by Respondent Union. As
noted above I rejected this exhibit at the hearing. I now,
admit it for all purposes. I have concluded after careful
examination of General Counsel's Exhibit 2 that whatever
admissions may be drawn from the documents concern
events antedating April 16, 1970. Accordingly, in the
determination of the merits of these cases, it becomes
necessary to weigh in proper perspective events and
conduct as well as admissions that deal with matters
occuring prior to April 16, 1970.
The United States Supreme Court in its landmark
decision concerning Section 10(b)6 recognized that the
quantum of evidence found within the limitation period is
the controlling factor in determining whether or not unfair
labor practices have been committed. Prior to the
1 TXD-(SF)-166-70
2 G.C. Exhs. 2,9(a), (b), and (c), and 10, in rejected exhibit file.
3 G.C. Exh. 2 consists of a stipulation entered into between the General
Counsel, Charging Party, and ILW Local 13 in the proceeding before Trial
Examiner Alexandre The introduction to the stipulation reads as follows:
"For the purposes of only this National Labor Relations Board proceeding
in Case No. 21-CB-3457 and 21-CB-3494, it is stipulated
This exhibit consists of 34 pages with line references to 80 attachments
The General Counsel has faded to specify with any degree of clarity what
sections of this exhibit he relies on to prove any particular point or
admission.
4 G.C. Exhs 9(a), (b), and (c) consist of the following documents:
9(a) is a copy of a letter from the law firm of Ernst and Daniels to the
executive secretary of the National Labor Relation Board dated March 28,
1971.
9(b) is a copy of a telegram sent by this law firm to the executive
secretary concerning a brief filed in the case decided by Trial Examiner
Alexandre
9(c) is a copy of the brief on behalf of Pacific Maritime Association in
that case.
Ernst and Daniels, it should be noted represented Respondent
Association in the proceeding before Trial Examiner Alexandre and
General Counsel offered 9(a), (b), and (c) as admissions by Respondent
Association.
G.C. Exh. 10 is an answering brief filed by counsel for Respondent
Association in the proceeding before Trial Examiner Alexandre.
Counsel for Respondent Union objected to the foregoing exhibits on the
ground that even though they would not be considered admissions as
against Respondent Union they were highly prejudicial. Although as stated
above, I have reversed my original ruling and now admit these documents
in evidence , I accord these documents little evidentiary value inasmuch as
they refer to matters antedating the 10(b) period in the proceeding before
me. Moreover , as these documents are voluminous , consisting of 250 pages,
I believe that it was incumbent upon the General Counsel to point out with
some degree of specificity what sections of these exhibits he relied upon to
prove any particular point or admissions This he has failed to do. The
General Counsel, accordingly, has merely cluttered up the record with the
hope that the Trial Examiner could extract some modicum of evidence to
support his case I have failed to do so.
5 " . PROVIDED, That no complaint shall issue based upon any
unfair labor practice occurring more than six months prior to the filing of
the charge with the Board and the service of a copy thereof upon the
person against whom such charge is made.... .
6 Local 1424, International Association of Machinists v N LRB., 362
U.S. 411.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Machinists case it was, the established rule in National
Labor Relations Board decisions that Section 10(b) was
only a statute of limitations, and not a rule of evidence. In
the Machinists case the Supreme Court rejected this
construction and stated:
We think that permitting resort to the principle that
Section 10(b) is, not a rule of evidence, in order to
convert what is otherwise legal into something illegal,
would vitiate the policies underlying that Section.
A fine analysis of Section 10(b) with regard to its
evidentiary use 7 finds the rule to be as follows:
... if the NLRB finds substantial evidence of an
unfair labor practice within the limitation period, the
Board may consider evidence of prior unfair labor
practices to determine whether an unfair labor practice
occurred within the limitations period. [citations] .. .
where no evidence of an unfair labor practice is found
within the limitations period, the NLRB may not give
independent and controlling weight to evidence of prior
unfair labor practices to find a violation within the six-
month period. [Citations omitted] It is well-established,
however, that such prior evidence of unfair labor
practices is admissible as background evidence to show
the nature of the relationship between the parties
[citations ]. The effect of the- holding in the second
situation described above is a rejection of the
"continuing tort" or continuing violation doctrine in
unfair labor practice cases where no evidence of such a
violation is found within the limitations period ... .
In MacMillian Ring-Free Oil Co. v. N.L.R.B.,8 the court
specifically addressed itself to the situation where there was
insubstantial evidence - as contrasted to substantial or to
no evidence-of an unfair labor' practice within the
limitations period. The Hastings Law Review Article in
discussing this aspect came to the conclusion that the Ninth
Circuit Court by its decision in MacMillan ruled that
primary reliance upon evidence of events prior to the 6-
month limitation period would not establish an unfair labor
practice within that period if there was found only
insubstantial evidence of the unfair labor practice within
the 6-month period.
In my opinion, the law review article has concluded
correctly that the current state of the law flowing from the
MacMillan decision requires rejection of the continuing
violation doctrine when there is less than substantial
evidence that a violation occurred during the 6-month
period.
C. Preliminary Factual Determinations
The General Counsel failed to provide credible witnesses
with adequate knowledge of the basic interpretations of the
contractual provisions of the labor agreement governing the
7 The Hastings Law Journal, Volume 20, 1968-69, pp. 1091-98,
Evidentiary Use of Prior Unfair Labor Practices.
8 394 F.2d 26 (C.A. 9), reversing 160 NLRB 877.
9 Wayne Blackwell was the only one questioned with regard to his
membership. However, as the evidence shows that membership dues were
deducted from his paycheck, I believe I am warranted in assuming that this
was typical and that the other Port Hueneme Class B men were also
members.
10 The evidence shows Long Beach and Los Angeles are mterchangea-
relationship between Respondent Association and Respon-
dent Union.
With regard to the dispatching procedure the General
Counsel places prime reliance on the fact that from
approximately January 1966, to some time in September
1969, visiting Class B men were dispatched immediately
after local Class B's and before T.W.'s and that after
September 1969, and continuing at the time of the instant
hearing that the limited registered longshoremen from Port
Hueneme were dispatched from Long Beach-Los Angeles
after T.W.'s: Additionally, it appears that the General
Counsel relies on the fact that T.W.'s were members of
Respondent Union, Local No. 13, while visiting Class B
men obviously were not. However, the evidence does show
that visiting Class B men involved herein were members of
ILWU Local No. 46.9 There is agreement by all parties and
I find that Respondent Association and Respondent Union
are jointly responsible for the operation of the hiring hall
for Los Angeles-Long Beach while Local 46 and Respon-
dent Association are jointly responsible for the hiring hall
at Port Hueneme. Likewise, there is no dispute that the
home port for Class B longshoremen who are members of
Local 13 is Los Angeles-Long Beach 10 while the home port
for members of Local 46 is Port Hueneme.
The record shows that the Class B men from Port
Hueneme who sought work at the hiring hall for the Long
Beach-Los Angeles area were always regarded as visitors
and were called up as such by the dispatchers. Visitors"
under the applicable contract provisions are required to
secure written permission from the joint port committee of
their home port and written acceptance from the port they
are visiting in order to be eligible for dispatch from the port
they are visiting-12 In the case of the Hueneme limited
registrants there never was compliance with the contractual
provision calling for permission and acceptance. According
to the undenied testimony of the General Counsel's
witnesses the men were told by Union and employer
representatives at Port Hueneme that it was not necessary
for Port Hueneme longshoremen to obtain written
permission to obtain employment through the Local 13
hiring hall at Long Beach and Los Angeles. Indeed, the
testimony clearly shows that from 1966 to September 1969
visiting Class B longshoremen from Port Hueneme were
not requested at any time by any officials of Local 13 to
show that they had received clearance.
The question whether the change in the dispatch
procedure of September 1969 affecting visiting limited
registered longshoremen' from Port Hueneme and similar
visitors from other ports constituted discrimination in
violation of the Act is not before me for decision by virtue
of the proviso to Section 10(b) of the Act.13 What is in issue
in these proceedings is whether the continuance of this
ble for all purposes.
11 The fact that the Class B men involved in this proceeding are visitors
is a major distinction between this case and that before Trial Examiner
Alexandre.
12 There are sound economic reasons for this requirement as it prevents
concentration of workers in some ports with attendant shortages in others.
13 I reiterate that Trial Examiner Alexandre 's Decision even if it
decided this question is not binding upon me.
PACIFIC MARITIME ASSOCIATION 297
practice after April 16, 1970, constituted contractual and
repeated violations of the Act.
The General Counsel in support of the allegations of the
Complaint has merely shown that these changes in dispatch
procedure were continued after April 16, 1970. In effect the
General Counsel is arguing that I adopt a per se approach in
that he would have me conclude that the continued practice
after April 16, 1970, of dispatching visiting Class B men
after T.W.'s constituted a discriminatory practice in
violation of the Act.14 I disagree. Both Respondent
Association and Respondent Union argue that visiting
longshoremen possess no priority in dispatch unless they
have conformed to the procedures outlined in the labor
agreement which required clearance from the home port
and acceptance by the port to which the visitors travel. On
the other hand, the General Counsel argues that the custom
was established for Port Hueneme Class B visitors to be
dispatched at Long Beach-Los Angeles immediately after
Class B Long Beach-Los Angeles longshoremen and that
the change in September 1969 and continuance thereafter is
unlawful. Again I am constrained to disagree. Contractual
provisions of the labor agreement between the Respondent
Association and the International of the Respondent Union
have been continually subjected to extensive interpretations
by the parties. The procedures by which final decisions
concerning the meaning and application of specific
contract terms have been lengthy, time consuming, and
frequently include arbitration. The bargaining relationship
of the parties despite these exhaustive procedures has been
maintained because both sides have accepted the basic
premise that their agreement controls the relationship. It is
apparent that the unilateral introduction by Respondent
Union of TWs, as longshore personnel had met with the
immediate opposition of Respondent Association and that
procedures were instituted by the Association to curb this
practice. It would appear that Respondent Union has to a
large extent agreed because the number of TWs has been
greatly reduced. The parties, under the terms of this
agreement, have also participated in arbitration proceed-
ings concerning factors related to Respondent Union's
unilateral admission and dispatch of TWs to longshore
work.15
Having set out above the high regard in which the parties
hold their labor agreement, it seems to me that it would be
more appropriate to give effect to the applicable provisions
of the, labor agreement between the parties where no
violence is done to the equities involved. It is also axiomatic
that condonation by silence of a departure from a provision
14 No other conclusion can be drawn from the General Counsel's brief
in which he summarizes his contentions in the following language: "The
decision in the prior cases established a violation as to Respondent Union.
That decision also established that Respondent PMA was jointly liable and
would have been held jointly responsible had it been named as a
respondent. The evidence in these cases establishes that Respondent
Union's conduct found unlawful in prior cases was too narrow a finding
and that, in fact, Respondents had been granting unlawful dispatch
preference to TW's to the detriment of Class B longshoremen from other
ports as well as nonregistered longshoremen. Such conduct violated Secs.
8(a)(1) and (3) and 8(bXl)(A) and (2) of the Act."
15 Probably, the problem presented to the Trial Examiner could be
solved by diligent resort to the terms and conditions of the labor agreement
if the parties were left to their own devices. That this is not mere
of a written agreement for a period of time does not
constitute a complete waiver of that provision so as to
confer permanent rights to the beneficiaries. Applying this
logic to the facts herein it would appear that both
Respondent Association and Respondent Union from 1966
to about September 1969 condoned the failure of visiting
Class B longshoremen to secure written permission from
the appropriate authorities of their home port and
acquiescence from Long Beach-Los Angeles port authori-
ties to secure dispatches at Long Beach-Los Angeles.
Thereafter rather'abruptly, in September 1969, the special
privileges extended to visiting Class B men, i.e., dispatching
them after the home port Class B were dispatched, was
withdrawn and they were treated as casuals or "extras"
which is the status they would normally possess in the
absence of the required clearances. Counsel for Respon-
dents have asserted that longshoremen under the terms of
the labor agreement have no rights outside their home port
unless they abide by the terms of the labor agreement. I
find this argument meritorious and quite convincing.16
Accordingly, I find that the General Counsel has failed to
sustain the required burden of proof that Respondents have
engaged in conduct violative of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the proceeding, I make the following:
CONCLUSIONS OF LAW
1. Pacific Maritime Association is and has been at all
times material herein an employer within the meaning of
Section 2(2) of the Act and engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Longshoremen's and Warehousemen's
Union, Local No. 13, is and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent Association and Respondent Union
through the dispatch of terminal warehousemen or TW's
ahead of visiting Class B longshoremen did not violate
Sections 8(a)(1) and (3) and 8(b)(1)(a) and (2) of the Act.
ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceeding,
I recommend that the National Labor Relations Board
enter into an order dismissing the consolidated complaint.
speculation is shown by the fact that the Charging Parties announced
during the course of the hearing that they wished to withdraw the charges
but the Regional Director would not approve such disposition.
16 This argument is completely supported by Pacific Coast Longshore
Contract Document, G. C. Exh. 3, sec. 8.41 and Supplement One, Subsec.
3.6 which reads: "No visiting privileges need be accorded limited registered
men, but if there is a shortage of registered longshoremen in any port,
temporary visiting privileges may be accorded to limited registered men
from other ports where the Joint Port Labor Relations Committee of the
port of registration agrees to permit such visiting by its limited registered
longshoremen."
It is clear , therefore, that the visiting privileges accorded the Port
Hueneme Class B men could be withdrawn or granted at will.