NLRB v. International Longshoremen's & Ware. Union

• Decision Date: 19 December 1960
• Docket Number: No. 16765.,16765.
• Citation: 283 F.2d 558
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 10, et al., Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

283 F.2d 558 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 10, et al., Respondents.

No. 16765.

United States Court of Appeals Ninth Circuit.

October 13, 1960.

Rehearing Denied December 19, 1960.

COPYRIGHT MATERIAL OMITTED

Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, A. Brummel, Attys., N.L.R.B., for the National Labor Relations Board.

Gladstein, Andersen, Leonard & Sibbett, Norman Leonard, San Francisco, Cal., for respondent Unions.

Richard Ernest, Richard M. Adams, San Francisco, Cal., for respondent, Pacific Maritime Association.

Before BONE, BARNES and JERTBERG, Circuit Judges.

BONE, Circuit Judge.

The National Labor Relations Board petitions us to enforce its order directing respondents to cease and desist from various unfair labor practices and to take certain affirmative action which in the Board's opinion will effectuate the purposes of the National Labor Relations Act. The Board's order resulted from charges brought by A. T. Satchell, a longshoreman. Satchell was the General Counsel's sole witness. The facts, gleaned for the most part from his testimony, are as follows:

In the spring of 1957, Satchell and others instituted a law suit to regain membership in respondent Local 10. From that time on, until January, 1958, when the present charges were heard before the Trial Examiner, Satchell was dispatched with regularity to longshore jobs on the San Francisco Bay waterfront.¹ On three occasions, however, he was prevented from working at the job to which he was dispatched. These occasions provide the grounds for the unfair labor practices charged against respondents.

On a date near or about July 27, 1957, Satchell was "dispatched" to Encinal Terminal, Alameda, for work. He was accompanied by another longshoreman named Meisner. Upon reaching this Terminal Satchell and Meisner separated, and Satchell encountered a steward of Local 10. The steward, addressing two other longshoremen who were present, said, "This fellow is suing the union. He can't work here. There's another one here too." Meisner approached the group at this time and one of the longshoremen took a swing at him. Meisner and Satchell both left the dock posthaste.

On August 24, 1957, Satchell was "dispatched" to a job at Pier 30 in San Francisco. The boss of the gang to which Satchell was dispatched ordered him to work in the hold of the vessel. A few minutes later, however, this gang boss recalled Satchell to the deck for a talk with Local 10's gang and dock steward. The latter individual was the instigator of Satchell's difficulties in July at the Encinal Terminal, and he again told Satchell that he could not work on the waterfront. The gang boss, knowing that Satchell had a proper dispatch slip, sought some person of authority at the offices of Local 10, but no one could be found. The gang boss then told Satchell that if the men on the gang and the steward would agree to let Satchell work, he, the gang boss, would go along. The gang steward said he would go and consult with the gang. He subsequently returned and told the gang boss that the gang would not work with Satchell. The gang boss then stated that he could not hire Satchell. Satchell left.

On October 19, 1957, Satchell was dispatched to the Oakland Army Base. He found the gang to which he had been sent but unluckily met the gang steward, who said, "You're the one suing the union, aren't you?" The steward then found the gang boss and said to him, "You can't work this guy. He's suing the union." Satchell admitted to the gang boss that this was so. The gang boss replied that Satchell could not work. Upon leaving the dock, Satchell ran across another union steward who informed him that the "Stewards' Council" had ordered the stewards to discharge all of those individuals who were suing the union every time any one of them came to work.

The Trial Examiner in his Intermediate Report found that Local 10 was responsible for the behavior of its stewards, that the stewards restrained and coerced Satchell on a date near or about July 27, on August 24 and on October 19, in the exercise of rights guaranteed in § 7 of the Act, 29 U.S.C.A. § 157, and that Local 10 had thereby thrice committed the unfair labor practice proscribed by § 8(b) (1) (A) of the Act, 29 U.S.C.A. § 158(b) (1) (A). Since no agent of Pacific Maritime Association (hereafter PMA) was present at the time of the July incident, the Trial Examiner concluded that no violation of § 8(b) (2), 29 U.S.C.A. § 158(b) (2), had then occurred. The pertinent sections of the National Labor Relations Act, as amended, are quoted in the margin.²

The Trial Examiner also found that the gang bosses involved in the incidents of August 24 and October 19 were the agents of PMA, that consequently PMA had on those two occasions violated §§ 8(a) (1) and 8(a) (3), 29 U.S.C.A. §§ 158(a) (1) and 158(a) (3), and that Local 10 through the agency of its stewards had caused PMA's violation and had thereby contravened § 8(b) (2). The Trial Examiner found that neither the stewards nor the gang bosses could be considered agents of the International Union. Accordingly, he held the International blameless.

The Board accepted the Trial Examiner's conclusions as to all the unfair labor practices which he ascribed to Local 10 and PMA. In addition, the Board found that the International as well as Local 10 had violated §§ 8(b) (1) (A) and 8(b) (2) on August 24 and October 19, first, because the stewards of Local 10 were acting as agents of the International and second, because the gang bosses were acting not only on behalf of PMA, but also as agents for Local 10 and the International.³

Substantial Evidence

Respondents deny that the record contains substantial evidence to support the Board's findings. They challenge in three particulars the sufficiency of Satchell's testimony: (1). Satchell first testified that the incident at Encinal Terminal had occurred on July 27, 1957, but he later recanted and said he wasn't sure of the exact date. It was shown to the Trial Examiner's satisfaction that no vessels were at the Terminal on July 27. (2). Satchell testified that the gang boss involved in the August 24 incident had told him that his name was Simon. Yet the gang boss who went by that name was shown not to have worked on August 24. (3). Satchell testified that a steward known to him as Doughbelly had told him on October 19 that the Stewards' Council had ordered the stewards to discharge those persons who were suing the union each time that any one of them was dispatched to a job. Doughbelly testified, however, that he said no such thing and that the Stewards' Council to the best of his knowledge had not given such an order.

Respondents contend that other testimony further detracts from the substantiality of the evidence from which the Board drew its conclusions. They point to the fact that between the initiation of his suit against the union and the hearing of his charges against respondents, Satchell was regularly dispatched and regularly worked at numerous longshore jobs, that he encountered trouble, if at all, on but three isolated occasions, and that he never brought the practices complained of to the attention of a responsible officer of any of the respondents.

In sum, respondents urge that the taking into account "whatever in the record fairly detracts from its weight" and viewing the evidence "in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view," we must conclude that the findings of the Board are unsupported by substantial evidence. See Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456; Morrison-Knudsen Co. v. N. L. R. B., 9 Cir., 1960, 276 F.2d 63, 73. Despite respondents' protestations to the contrary, we think the question boils down to one of Satchell's credibility. The Trial Examiner believed Satchell. He assumed that Satchell was mistaken as to the precise date of the July incident, that the gang boss who took Simon's place on August 24 said that he was Simon even though he was not, and that Doughbelly told Satchell in October of the Stewards' Council's antipathy to those who were suing the union. The Trial Examiner descredited Doughbelly's denial in this regard.

Credibility is peculiarly the province of the Trial Examiner. N. L. R. B. v. West Coast Casket Co., 9 Cir., 1953, 205 F.2d 902, 906; N. L. R. B. v. San Diego Gas & Elec. Co., 9 Cir., 1953, 205 F.2d 471, 475; N. L. R. B. v. Swinerton, 9 Cir., 1953, 202 F.2d 511, 514. His evaluation of oral evidence as reliable will not be disturbed unless the testimony which he credits is hopelessly or inherently incredible. N. L. R. B. v. Steel, Metals, and Hardware Fabricators, etc., Local 810, 2 Cir., 1960, 274 F.2d 688; N. L. R. B. v. Davisson, 9 Cir., 1955, 221 F.2d 802; N. L. R. B. v. Dinion Coil Co., 2 Cir., 1952, 201 F.2d 484, 490. The discrepancies in Satchell's story which respondents claim completely destroy the possibility that he was telling the truth seem to us to evince nothing more than a "confusion as to details" which assuredly does not warrant overturning the Trial Examiner's judgment as to Satchell's veracity. See Sunshine Biscuits, Inc. v. N. L. R. B., 7 Cir., 1960, 274 F.2d 738; N. L. R. B. v. Regal Knitwear Co., 2 Cir., 1944, 140 F.2d 746. Indeed the Court of Appeals for the Third Circuit recently accepted a Trial Examiner's findings on credibility in the face of an attack much like that presently pressed by respondents. Compare Paul M. O'Neill International Detective Agency, Inc. v. N. L. R. B., 3 Cir., 280 F.2d 936. Since Satchell's testimony dominates the record before us, and since we accept the credence accorded Satchell by the Trial Examiner, we conclude upon the record as a whole that the Board's findings of...