National Labor Rel. Bd. v. Waterfront Employers

• Decision Date: 06 April 1954
• Docket Number: No. 13671.,13671.
• Citation: 211 F.2d 946
• Parties: NATIONAL LABOR RELATIONS BOARD v. WATERFRONT EMPLOYERS OF WASHINGTON et al.
• Court: U.S. Court of Appeals — Ninth Circuit

211 F.2d 946 (1954)

NATIONAL LABOR RELATIONS BOARD v. WATERFRONT EMPLOYERS OF WASHINGTON et al.

No. 13671.

United States Court of Appeals Ninth Circuit.

April 6, 1954.

COPYRIGHT MATERIAL OMITTED

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Arnold Ordman & Margaret M. Farmer, Attys., N.L.R.B., Washington, D. C., for petitioner.

Bogle, Bogle & Gates, Edward G. Dobrin, J. Tyler Hull, Zabel & Poth, Philip J. Poth, Bassett & Geisness, Seattle, Wash., Gladstein, Andersen & Leonard, San Francisco, Cal., for appellees.

Before HEALY and BONE, Circuit Judges and LEMMON, District Judge.

BONE, Circuit Judge.

The National Labor Relations Board petitions for enforcement of an order issued by it against Waterfront Employers of Washington (herein "WEW"), Local 19, International Longshoremen's and Warehousemen's Union (herein "Local"), and International Longshoremen's and Warehousemen's Union (herein "ILWU"), with which Local is affiliated. The Board's Decision and Order embodies all of the facts of this case, and is set forth in 98 N.L.R.B. 284. The Board's supplemental Decisions and Orders in the case may be found in 101 N.L.R.B. 195 and 101 N.L.R.B. 770. In this opinion we advert to only such facts as we deem necessary to point up the issues for decision here.

The unfair labor practices found by the Board involved the execution by the parties of two hiring agreements and the operation of a Seattle hiring hall for longshoremen and dock workers pursuant to those agreements. The first of these two agreements, the "Pacific Coast Longshore Agreement" (herein the "Coast Agreement") was negotiated by ILWU and the Waterfront Employers Association of the Pacific Coast (now succeeded by the Pacific Maritime Association, herein "PMA") late in 1948. The Coast Agreement named PMA and other waterfront employers associations, including respondent WEW, as parties thereto. WEW authorized the execution of the Agreement and ratified it.

The Coast Agreement was discussed in our recent case of National Labor Relations Board v. International Longshoremen's & Warehousemen's Union, 9 Cir., 1954, 210 F.2d 581, 583. The portions of the Agreement concerning hiring halls were succinctly summarized in that opinion as follows:

"Control of the hiring hall is vested in a Port Labor Relations Committee * * * composed of equal numbers of employer and labor representatives. Expenses are paid equally by each of the two groups. Personnel are appointed by the Committee except for the dispatchers who are selected by the International by means of elections. These dispatchers are subject to removal by the Committee for cause. The business of the hall is chiefly the dispatching of registered longshoremen upon request of the Employers, who are required to obtain all longshore help through the hall. Preference in dispatch is granted first to registered longshoremen who are members of the Local, second to nonunion registered longshoremen, and third to non-registered longshoremen."

Pursuant to the Coast Agreement hiring halls are established at Seattle and other Pacific Coast ports. It is the operation of the Seattle hiring hall with which we are here concerned.

The second of the two hiring agreements involved in this case was executed by respondents Local and WEW in February of 1949 and was called the "Dock Workers' Agreement for the Port of Seattle" (herein the "Dock Agreement"). As its title indicates, the Agreement covered dock work and dock workers in Seattle. In general, dock work consists of the movement of cargo to and from the docks; longshore work consists of the movement of cargo between ship and dock. The Dock Agreement provided for the hiring of Seattle dock workers through the same hiring hall and by the same hiring arrangement as was provided for longshoremen in the Coast Agreement.

WEW is an incorporated association of waterfront employers in the State of Washington, with its principal office in Seattle. During the times pertinent herein WEW served as paymaster for its member companies and, as indicated by its authorization and ratification of the Coast Agreement and its execution of the Dock Agreement, represented such companies for collective bargaining purposes. The Board found that WEW was an "employer" within the meaning of § 2(2) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq., (herein "the Act"), and that finding is not challenged here.

On the Port Labor Relations Committee which had charge of the Seattle hiring hall were three representatives of the employers, chosen by PMA, and three union representatives, chosen by Local, to which ILWU had delegated its rights and responsibilities under the Coast Agreement. WEW was not directly represented on the Committee, although its president, Daryl Cornell, served on the Committee as PMA representative. The day-to-day operation of the hiring hall was conducted by Chief Dispatcher Laing, who was selected by Local 19. The employers' share of the expenses of the several hiring halls on the Pacific Coast was collected by PMA from its member companies and other stevedoring companies on the waterfront. Part of these funds were deposited to the account of WEW, which in turn used them to pay the employers' share of the Seattle hiring hall expenses.

So far as it is here necessary to state, the Seattle hiring hall was operated as follows: The Port Labor Relations Committee had control of the registration lists for the hiring hall and power to make additions to or subtractions from the lists. The names of registered longshoremen who were union members and were not members of regular longshore "gangs" were listed on a board in the hiring hall. Beside each of such names was a small hole into which a "plug" could be fitted. Each longshoreman whose name was on this board had to "plug in" each day to indicate his availability for work. There was another board where "gangs" of longshoremen who were union members were listed. Members of gangs could secure work simply by calling the hiring hall to learn if their "gangs" were to be dispatched. The gangs and individual longshoremen were each dispatched in rotation from their respective boards.

The Board found that in the course of the operation of the Seattle hiring hall two longshoremen, Albert G. Crum and Clarence Purnell, then members of Local, were discriminatorily denied dispatch. Crum had worked regularly as a longshoreman from 1936 to 1944. Thereafter he divided his time between longshore work, a job for a stevedoring company which was outside the jurisdiction of respondent unions, and a farm which he owned in Idaho. In December of 1948 Crum was "fined" $2400 by Local for not standing his share of picket duty during a strike, and was informed that he could work for 30 days and no longer unless he paid this fine. Crum worked with the gang of which he was a member until January 27, 1949, when the entire gang was laid off. During the next few days Crum telephoned the hiring hall to find out if his gang had been dispatched. One day after the expiration of the 30-day period, when he called the dispatcher's office, Crum was told: "Crum, there is no need of your calling up any more. There is a bug behind your name, and you won't be dispatched with your gang until the fine is paid."¹ Thereafter Crum requested Daryl Cornell, who was PMA Manager for Seattle, President of WEW, and a member of the Seattle Port Labor Relations Committee, to see what he could do for him on the Committee, and Cornell agreed. Crum also contacted representatives of shipping companies in Seattle, who told him he would be hired if he was dispatched by the hiring hall. On April 20, 1949, on motion of Local, the Port Labor Relations Committee cancelled Crum's registration as a longshoreman on the ground that he was only a casual worker.

Purnell had worked intermittently as a longshoreman from 1942 to the fall of 1948. He was not a member of a regular gang. He, like Crum, was fined $2400 by Local on or about January 3, 1948 for not standing his share of picket duty during a strike, and was told he could work for just 30 days without paying this fine. He did not work during the 30-day period because he was suffering from arthritis. Thereafter he made no attempt to plug in at the hiring hall because, he said, he knew it was useless when he had not paid his fine. In January of 1949 he asked Dispatcher Laing for a statement of availability to assist him in getting unemployment compensation or another job. Laing refused and told him he had only 30 days to work unless he paid his fine. Purnell also asked President Cornell of WEW if his record was clear with the employers and was informed that it was. On February 3, 1949 Purnell again asked Dispatcher Laing for a statement of availability. Again Laing refused. Laing told Purnell he thought his "time was up"; that he could no longer work until his fine was paid. Laing testified that Purnell's name was never removed from the dispatch board and that if he had at any time plugged in he would have been dispatched.

The Board concluded that by executing and enforcing the preferential hiring provisions of the Coast and Dock Agreements WEW violated § 8(a) (1), (2) and (3) of the Act;² that WEW was responsible for discriminatorily denying employment to Albert Crum and Clarence Purnell, and therefore was guilty of violating § 8(a) (1) and (3) of the Act; that by the denial of dispatch privileges to Crum and Purnell Local and ILWU caused WEW and its member employers to discriminatorily deny employment to Crum and Purnell, in violation of § 8(b) (1) (A) and (b) (2) of the Act;³ and that Local violated § 8(b) (1) (A) and (b) (2) of the Act by executing and enforcing the Dock Agreement.

In substance the Board's order (1) requires the respondents who were parties to the Coast Agreement to cease maintaining in effect or enforcing the prefertial hiring provisions of...