National Labor Relations Bd. v. LOCAL UNION 1418, ETC., 14835.

• Decision Date: 14 May 1954
• Docket Number: No. 14835.,14835.
• Citation: 212 F.2d 846,46 ALR 2d 1118
• Parties: NATIONAL LABOR RELATIONS BOARD v. LOCAL UNION 1418, GENERAL LONGSHORE WORKERS, INTERNATIONAL LONGSHOREMEN'S ASSN., A.F.L.
• Court: U.S. Court of Appeals — Fifth Circuit

46 ALR 2d 1118, 212 F.2d 846 (1954)

NATIONAL LABOR RELATIONS BOARD v. LOCAL UNION 1418, GENERAL LONGSHORE WORKERS, INTERNATIONAL LONGSHOREMEN'S ASSN., A.F.L.

No. 14835.

United States Court of Appeals Fifth Circuit.

May 14, 1954.

George J. Bott, Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, David P Findling, Associate Gen. Counsel, Arnold Ordman, James A. Ryan, Attys., National Labor Relations Board, Washington, D. C., Charles M. Paschal, Jr., Chief Law Officer, National Labor Relations Board, New Orleans, La., for petitioner.

Ralph D. Dwyer, Jr., Alvin J. Liska, New Orleans, La., for respondent.

Before STRUM and RIVES, Circuit Judges, and DAWKINS, District Judge.

DAWKINS, District Judge.

On December 19, 1949, Ivy P. Boudreaux filed with the National Labor Relations board, called Board, charges that the International Longshoremen's Association Local No. 1418, AFL, called Union, had and was engaged in unfair labor practices, within the meaning of Section 8(b) (1), 29 U.S.C.A. § 158(b) (1), but for some reason the Board did not issue its complaint against the Union until May 29, 1952. The complaint recited (Paragraph 6 and 7) that Boudreaux had charged respondent, "its officers, agents and members, did on or about June 22, 1949, cause" the corporations named¹ in Paragraph I and other stevedoring corporations doing business in the port of New Orleans, to refuse employment to complainant because of his non-membership in respondent Union, and had continued to do so ever since.

The Trial Examiner scheduled a hearing for June 23, 1952, and respondent answered on June 6th of that year, denying the charges generally.

The hearing began on time and the Intermediate Report was filed on September 15, 1952, finding respondent guilty of the charges and recommending action by the Board.² The Board approved the Examiner's findings in all respects.³

The Board seeks enforcement and respondent opposes on the sole ground that the charges are not supported by the evidence.

The Examiner stated the issue as follows:

"The gravamen of the complaint here is that the Respondent Union, after expelling Ivy P. Boudreaux from membership for reasons other than nonpayment of dues, blacklisted him from employment in the Port of New Orleans, first as a longshoreman and later in other capacities as well, and during the period covered by the complaint has caused waterfront employers to honor that blacklisting."

The Taft-Hartley Act became effective August 22, 1947, but allowed contracts theretofore made between Union and employers to continue, in this instance for approximately one year. It had been entered into three days before the Act went into effect, August 19, 1947, and provided that only members of the two unions, Local 1418 and 1419 (white and colored) should "be hired * * * in the loading and unloading of ships under this contract." After the amendment, in view of Section 102, 29 U.S.C.A. § 158 note, such provisions were eliminated. Instead, the contracts, where employees are organized, require applicants, as a condition of employment, to become union members on or after the 30th day from the beginning of their employment, or the effective date of the applicable agreement, whichever is the longer.

Local No. 1418 and 1419 were certified December 6, 1949, as having been chosen at an election by the stevedore employees. The contracts provided that men should be supplied by foremen or superintendents only. The report of the Examiner described the method of hiring as follows:

"In actual practice longshoremen are usually hired by foremen, almost all of whom are members of the Union, although such membership has never been contractually required as a condition of their employment. Foremen are not necessarily attached to any given stevedoring company. Many work for different companies at different times as their services are required, and when not working as foremen seek employment as longshoremen on the gangs of other foremen. The hiring practices followed, generally speaking are these: Each stevedoring company has a number of regular or extra foremen listed with it. When a ship arrives in port, the stevedoring company working it will determine the number of longshore gangs required, and will contact the necessary number of foremen so that each may assemble his own gang. The hiring of longshoremen is done each day at `shape-ups\'. Foremen seeking gangs and longshoremen seeking work appear at these `shape-ups\' where all hiring is done, and the gangs necessary for the day\'s work are assembled. A foreman who works steadily as such will usually have a steady crew that follows him about from job to job, and he will give preference to his steady men, hiring extras from whomever is around. Longshoremen who are not on steady gangs will go from foreman to foreman until they succeed in finding one that requires his services for that day. Union men who are prepared to work steadily and are good workers usually experience little difficulty in finding placement on a regular gang."

Boudreaux began work as a stevedore about 1935, joining Local No. 1418 shortly thereafter and for some ten years found no difficulty in obtaining employment in one capacity or another. In May, 1945, he was appointed secretary-treasurer by the president of said Union, Al Chittenden, and was subsequently elected to that position by the membership. In the fall of 1947, while so serving, Boudreaux became involved, along with one Joseph Doane, the Union's vice president, in a controversy with Chittenden, about the affairs of the Union and the manner in which they were being administered. These two filed with the South Atlantic and Gulf Coast District of the International Longshoremen's Association, charges that Chittenden had misappropriated union funds and was conducting the Union's affairs "in a dictatorial manner". In turn, Chittenden induced the executive board to suspend Doane and Boudreaux upon charges of removing union records from the hall without the knowledge of the Union.

A hearing was had by the District Board and while Chittenden was cleared of the charge of misappropriating funds, it was found that he had assumed too much authority in conducting the Union's affairs. The Board made certain recommendations for the future handling and auditing of local accounts, as well as for "a more democratic and cooperative spirit with the membership in handling the affairs of the Local". It also recommended that Doane and Boudreaux be restored to their offices without loss in pay.

At subsequent meetings of Local 1418, the row between Chittenden on the one part, and Doane and Boudreaux on the other, broke out afresh, they contending he had suppressed parts of the District Board's report. Whereupon he called on the Union to again suspend them but this was voted down. Notwithstanding this action of the Union, Chittenden ordered them from the hall with the statement they were suspended. The matter again found its way to the office of International President Ryan in New York, who appointed a representative to conduct further investigation of the Local's affairs. In January, 1948, Boudreaux and Doane were again restored and were ordered to be paid their salaries while out of office.

The controversy again went back to the Local where other members of the Union began taking part by making charges against Doane and Boudreaux, and in March, 1948, they resigned their offices. Subsequently they were formally expelled on charges not disclosed by the record. Appeals to the District authorities were unsuccessful.

Boudreaux has never given up the fight and it has continued on through the years.

The N.L.R.B. found that until the controversy arose between Chittenden and Boudreaux, the latter never had any trouble obtaining employment on the waterfront, including the period following his resignation as secretary-treasurer of the Union in January, 1948, and until March of that year when he was expelled. Without going into great detail, the reason for his inability to get work on the New Orleans waterfront is, we think, correctly summarized by the Trial Examiner's report quoted in footnote.⁴ The examiner reviews many other instances of Chittenden communicating with persons, both with the stevedoring companies and in the Unions, requesting that Boudreaux should not be given employment and that he be "knocked off", that is, refused employment, which we also find fully supported by the record and not necessary to discuss at length here. To give a few illustrations, it appears that James Tankerson, a walking delegate for Local No. 1419 (colored) testified that Chittenden, shortly after the expulsion of Boudreaux and Doane, stated they were no longer members of Local 1418 and requested that they be "knocked off", or denied employment. Paul Guillory, also a walking delegate for Local 1419, confirmed the testimony of Tankerson about Chittenden saying that Boudreaux was no longer a member of Local 1418 and should be "knocked off" if he tried to get employment on the waterfront. The evasive character of the latter's testimony reflects very clearly that he told only what he was compelled to tell, but there is no doubt that all connected with the stevedoring business both on the side of employers and employees knew full well what "knocking off" in this instance meant.

Dave A. Dennis was president of Local 1419 and had worked as a longshoreman since 1935. He testified that in 1948 he had a telephone call from Chittenden prior to their convention of that year and gave testimony as indicated in the footnote.⁵ It was respondent's contention that anything that happened before June 21, 1949, did not come within the period involved in the complaint. However, from the latter portion of the quotation of Dennis' testimony it appears quite clearly that Chittenden's activities extended well within the six months period preceding December 19th, 1949.

Exact rules of evidence applied in court...