Petition — International Longshoremen's & Warehousemen's Union, Local No. 13 v. National Labor Relations Board

a’

Supreme Court, 5

FILED

AUG 18 1977

MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

«me 233

October Term, 1976

No.

INTERNATIONAL LONGSHOREMEN'S AND

WAREHOUSEMEN'S UNION, LOCAL NO. 13,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

MARTHA GOLDIN

Attorney at Law

1407 North La Brea Avenue

Hollywood, California 90028

(213) 851-7200

GEORGE E..SHIBLEY, ESQ.

Heartwell Building, Suite 505

Beach, California 90802

(213) 437-2295

Attorneys for Petitioner

TOPICAL INDEX

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

1. The Back Pay Order Is Not

Authorized By the Act. An Order

For Back Pay On Account of Losses

Suffered Because of the Union's

Allegedly Preferential Dispatch Pro-

cedures Is Contrary To Section 10(c)

of the Act In the Absence of Evidence

That There Were Applicants Ready,

Willing and Able To Take Job Referrals

Who Were Refused Dispatch.

2. Unfair Labor Charges Involving a

Requirement of Sponsorship for Appli-

cants for Registration Do Not Allege

Continuing Violations. The Purported

Violations Based On Sponsorship Are

Barred By Section 10(b).

3. The Decision Below Raises Significant

Questions Regarding the Interpretation

of the National Labor Relations Act.

CONCLUSION

APPENDIX A- Opinion of the Court

of Appeals

APPENDIX B- Order of the NLRB.

APPENDIX C - Order of the Board

(Gatlin).

lll

12

17

19

22

APPENDIX D- Order of Court Remanding

Board's Decision (Gatlin).

APPENDIX E- Order of the Board

(PMA).

APPENDIX F - Order Denying Rehearing.

APPENDIX G- Pertinent Portions of the

Constitution and Statutes.

li.

TABLE OF AUTHORITIES

Case

Chemical Workers v. Pittsburgh Plate Glass,

404 U.S. 157, 92 S.Ct. 383 (1971)

Int'l. Union, United Auto, Aerospace &

Agri. Imp. Workers v. NLRB,

363 F.2d 702 (D.C. Cir. 1966)

Local Lodge No. 1424, Int'l. Assoc. of

Machinists v. NLRB,

362 U.S. 4ll, 80 S.Ct. 822 (1960)

Local 60, United Brotherhood of Carpenters,

etc., AFL-CIO v. NLRB,

365 U.S. 651, 81 S.Ct. 875 (1961)

Local 357, International Brotherhood of

Teamsters, etc., v. NLRB,

365 U.S. 667, 81 S.Ct. 835 (1961)

NLRB v. Almeida Bus Lines, Inc.,

333 F.2d 729 (Ist Cir. 1964)

NLRB v. Alva Allen Industries, Inc.,

369 F.2d 310 (8th Cir. 1966)

NLRB v. American Aggregate Co.,

335 F.2d 253 (5th Cir. 1964)

NLRB v. American Nat'l. Ins. Co.,

343 U.S. 395, 72 S.Ct. 824 (1952)

NLRB v. Fields & Sons,

462 F.2d 748 (Ist Cir. 1972)

NLRB v. International Longshoremen's

& Ware. U., Local 12,

378 F.2d 125 (9th Cir. 1967)

NLRB v. Local 542, 542-A & 542-B,

Int'l. U. of Operating Engineers,

485 F.2d 387 (3d Cir. 1973)

NLRB v. Local 138, Int'l. U. of

Operating Engrs.,

293 F.2d 187 (2d Cir. 1961)

iii.

20

17

18

13

13

14

NLRB v. Local 138, Int'l. U. of

Operating Engrs.,

321 F.2d 130 (2d Cir. 1963)

NLRB v. Local 138, Int'l. U. of

Operating Engrs.,

380 F.2d 244 (2d Cir. 1967)

NLRB v. Local 2, United Assn. of

Journey. & Apprentices, P. & P.I.,

380 F.2d 428 (2d Cir. 1966)

NLRB v. McCready & Sons, Inc.,

482 F.2d 872 (6th Cir. 1972)

NLRB v. Seven-Up Bottling Co., Inc.,

344 U.S. 344, 73 S.Ct. 287 (1953)

NLRB v. Strong,

368 F.2d 929 (9th Cir. 1961)

NLRB v. Wonder State Manufacturing Co.,

344 F.2d 210 (8th Cir. 1965)

Pacific Maritime Association v. NLRB,

452 F.2d 8 (9th Cir. 1971)

Radio Officers Union of Commercial

Telegraphers, AFL v. NLRB,

347 U.S. 17, 74 S.Ct. 323 (1954)

Republic Steel Corp. v. NLRB,

311 U.S. 7, 61 S.Ct. 77 (1940)

United Furniture Workers of America,

CIO (Colonial Hardwood),

84 NLRB 563 (1949)

UNITED STATES CONSTITUTION

Fifth Amendment

iv.

20,

14

14

15

18

15

18

22

13

21

15

16

NATIONAL LABOR RELATIONS ACT

Section 7

Section 8(a)(3)

Section 8(b)(1MA)

Section 8(b)(2)

Section 8(b)(3)

Section 8(d)

Section 9

Section 9(a)

Section 10(b)

Section 10(c)

28 USC Section 1254(1)

5)

20

9, 8, 11, 12, 16, 20

9, 8, 11, 20

9, 11, 12, 21

9, 21, 22

5, 19, 20

)

3, 4, 5, 9, 10, 12

15, 17, 19

4, 5, 12, 14, 15, 16

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

INTERNATIONAL LONGSHOREMEN'S AND

WAREHOUSEMEN'S UNION, LOCAL NO. 13,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Ninth Circuit entered in the above-

entitled case on March 15, 1977.

OPINIONS BELOW

The Opinion of the Court of Appeals, reproduced as

Appendix "A" hereto, enforcing an order of the NLRB in

consolidated cases, is reported at 549 F.2d 1346 (9th Cir.

1977). The order of the NLRB, reproduced as Appendix

"B" hereto, enforced by the court below is reported at

210 NLRB 952. The decision and order of the Board in

the earlier of the consolidated cases here involved (the

Gatlin case), is reported at 183 NLRB 221 and reproduced

as Appendix "C" hereto. The order of the court below

remanding the Board's decision in Gatlin is reported at 80

LRRM 3213 and reproduced as Appendix "D" hereto. The

decision and order of the Board in the later of the

consolidated cases here involved (the PMA case) is

reported at 192 NLRB 260 and reproduced as Appendix

"E" hereto.

JURISDICTION

The judgment of the Court of Appeals, reproduced as

Appendix "A" hereto, was entered on March 15, 1977. A

timely Petition for Rehearing was denied on May 20,

1977. A copy of the order denying rehearing is repro-

duced as Appendix "F" hereto. The jurisdiction of this

Court is invoked under 28 USC § 1254()).

QUESTIONS PRESENTED

The consolidated cases involve a complex system

whereby longshoremen are registered for and dispatched

to stevedoring jobs in the Los Angeles-Long Beach harbor

area. Both registration and dispatch are accomplished

jointly by Petitioner Union and Pacific Maritime Asso-

ciation (PMA), the collective bargaining agent for the

employer stevedoring companies, although Union mem-

bers staff the joint dispatch hall.

The unfair labor practices are grounded in two

premises: first, that the Union utilized an impermissible

2.

sponsorship system in selecting its proposed applicants

for registration; and, second, that it discriminatorily dis-

patched non-registered "casuals" to longshore jobs in a

manner which gave Union members referral preference.

The finding, upheld by the court below, that the

Union engaged in discriminatory dispatching is based

upon data which does not show that a single person was

the object or victim of discrimination. The Order of the

Board, approved by the Court of Appeals, that the Union

"{m] ake whole. . .applicants for employment for any loss

of earnings they may have suffered by reason of [the

Union's] discriminatory exercise of its dispatch

authority" rests upon a record in which counsel for the

Board's General Counsel conceded "there is nc evidence

-+-to show who was eligible for employment... ."

(Transcript of the proceedings on remand, p. 13).

Within six months before the charges were filed there

had been no occurrence which might have been an unfair

labor practice. All the evidence that the Union had at

one time used a sponsorship system, its nature and

consequences, consists of acts and events barred by

§ 10(b) of the National Labor Relations Act (NLRA), 29

USC §160(b). The Union's objections to barred events

were overruled on grounds which appear to be contrary

to the law as interpreted by this Court in Local Lodge

No. 1424, Int'l. Assoc. of Machinists v. N.L.R.B.. 362 U.S.

411 (1960).

The court below agreed with the Board that the

sponsorship system was discriminatorily favorable to the

Union and that it was unlawful. It affirmed a conclusion

"that the Union's sponsorship program was unlawful [and]

that the Union's insistence upon that program violated its

duty of fair representation. ..." (Appendix A, pp. ll-12).

Yet the record is that within (or without) the § 10(b)

period not one job applicant, Union or non-Union, has

ever been denied employment opportunity because of the

sponsorship program. Furthermore, erroneous con-

clusions, derived from evidence of a supposed sponsorship

practice, which evidence has long been barred by § 10(b),

led the court to agree that the Union had refused to

bargain in good faith concerning registration in spite of

the continual meetings, discussions and negotiations

between the parties, culminating in a registration based

upon an amalgam of both their proposals.

The consequences of reliance upon time-barred evi-

dence have been grave for the Union. The back pay

award, alone, may amount to millions of dollars and

destroy a Union already plagued with problems resulting

from profound technological changes in the industry.

The other "remedies" stigmatize the Union and require it

to engage in onerous, needless record-keeping chores.

In the foregoing context, the questions here presented

are:

l. Whether an order that the Union provide back pay

to applicants for employment is in excess of the Board's

jurisdiction and contrary to the NLRA §10(c), 29 USC

§ 160(c), where there is no evidence that anyone was

eligible for employment, there is no evidence that

4.

anyone was denied employment, and there is no order of

reinstatement.

2. Whether a decision that the Union violated the

NLRA §§ 8(b)(1A) and (2), 29 USC §§ 158(b)(1)(A) and (2),

and its duty of fair representation under §9, 29

USC $159, predicated upon evidence of Union practices

which allegedly encouraged Union membership but which

were never shown to have discrimineted against non-

Union applicants for registration or employment is in

excess of the Board's jurisdiction.

3. Whether the NLRA §8(b)(3) [29 USC §158(b)(3)]

obligation to bargain in good faith imposed upon the

Union the duty to acquiesce in particular demands or

forego positions found by an arbitrator to be valid.

4. Whether the decision that the Union violated the

NLRA, §8(b)(3), 29 USC § 158(b)(3) is contrary to §10(b)

[29 USC §160(b)], without support in the record and

deprives the Union of due process of law.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional provisions involved are the Fifth

Amendment, due process clause; the statutory provisions

involved are the National Labor Relations Act, as

amended, Sections 7 (29 USC § 157), 8(b)(1)(A) [29 USC §

158(b)(1)(A)] , 8(b)(2) [29 USC § 158(b)(2)] , 8(b)(3) [29 USC

§ 158(b)(3)], 8(d) [29 USC § 158(d)], 9(a), [29 USC

§ 159(a)], 10(b) [29 USC § 160(b)] and 10(c) [29 USC §

160(c)]. The pertinent provisions of the Constitution and

statutes involved are reproduced in Appendix "G" hereto.

STATEMENT OF THE CASE

A. For many years the Union has been the exclusive

bargaining representative of workers performing long-

shore labor in the Los Angeles-Long Beach harbor area

under a labor relations agreement between its parent

organization, the International Longshoremen and Ware-

housemen's Union (the International) and PMA. PMA is

the collective bargaining agent for stevedore employers

on the Pacific Coast.

The agreement establishes various joint com-

mittees on which PMA and the Union have equal

representation. The Joint Coast Labor Relations Com-

mittee is a PMA-International body with jurisdiction over

contract grievances and some supervisory power over the

Joint Port Labor Relations Committee (Joint Port

Committee). The Joint Port Committee, a PMA-Union

body, maintains and operates a dispatch hall (the Central

Hall) from which registered longshoremen are dispatched

for employment as stevedores. Warehousemen are also

dispatched from the Central Hall. Although the hall is

jointly operated, dispatching is done by persons elected

by the Union's membership.

B. The determination that the Union operated the

dispatch hall in a discriminatory manner and thereby

violated the NLRA is extrapolated from statistics which

show no discriminated-against longshoremen. Dispatch

preference to stevedoring jobs is given first to fully

registered, i.e., Class A longshoremen, and then to

limited registered, or Class B men. Available jobs not

filled by registered longshoremen are dispatched to

unregistered extras, i.e., "casuals." Class A registered

men are usually members of the Union, whereas Class B

men and casuals are generally nct Union members.

Warehousemen are covered by separate labor

relations agreements between the union and employers.

They must accept proffered warehouse jobs or they

cannot work. The practice of dispatching commercial

warehousemen from the Central Hall to extra longshore

work when there is insufficient warehouse work is one of

longstanding. Terminal Warehousemen (TW) is a cate-

gory of Union membership available to men who perform

terminal warehouse work under separate agreements

covering such work. They are required to fill all requests

for terminal warehousemen before any of them may be

dispatched to extra longshore work.

Between 1967 and 1970 the Union increased its TW

membership from under 100 to approximately 635. About

80 to 85 of these were steadily employed by companies

under terminal warehouse contracts. During several

months in mid-1969, the number of TW's dispatched to

extra longshore jobs increased, while the number of other

non-registered men dispatched decreased. Whether the

change was at the expense of casuals who were not TW's

is not known, as there is absolutely no evidence on this

question.

C. Either PMA or the Union "may demand additions

or subtractions from the registered list as may be

necessary to meet the needs of the industry." Class A

men are selected from among the B registered men who

meet certain criteria. Registration of Class A and

Class B longshoremen is accomplished by the Joint Port

Committee. In about June, 1967, applications for Class B

registration were received, and intermittently thercafter

for about two years, the Joint Port Committee discussed

the selection and registration of 200-400 of the

applicants. Between December, 1968 and December,

1969, the matter was deferred by mutual agreement of

PMA and the Union, pending contract negotiations on

"containerization" of the industry. No additions were

made to the list of B registrants from the time the 1967

applications were received until after May 4, 1970.

D. The purported §8(b)(1(A) and §8(b)(2) violations

rest upon "sponsorship." Sponsorship was a method

whereby a longshoreman with "A" registration could

recommend an applicant for "B" registration. It had been

used for many years and was continued through the 1965

registration to effectuate the requirements of the law

and the contract that there be no discrimination on

account of race. Thereafter, in November, 1965, the

Joint Coast Committee decided that sponsorship would

not be used in the future.

In 1966 the Joint Port Committee used sponsorship

to screen and register a number of "B" longshoremen

previously authorized by the Joint Coast Committee.

Commencing in December, 1966, the committee engaged

in negotiations for further registration. When, in

January, 1968, the Union rejected a list of 475 applicants

submitted by PMA on the basis of criteria developed by

it, the dispute went to arbitration. The arbitration, in

March, 1968, inter alia ordered that 60 previously agreed-

upon applicants be registered immediately and that 186

applicants whose names appeared on both the Union's and

PMA's lists be processed for registration. All this

occurred prior to the 10(b) period.

One of the supposed acts of sponsorship took place

on October 2, 1968, (the first relevant date within the

10(b) time frame). On that date, the Union submitted to

the Joint Port Committee for registration processing a

list of names which it believed to be the 186 referred to

above. It was not; it was a list of 254 (or 256) applicants

and sponsors. At the next Joint Port Committee

meeting, the Union stated the list had been submitted in

error and that a new list would be provided. At the

following meeting PMA again submitted its list of 475

applicants. The parties made no decision on either side's

proposals. Meetings on the implementation of the

March, 1968 arbitrators award continued until about

November when the registration question was deferred

by mutual agreement, for approximately one year.

Negotiations resumed in the latter part of 1969.

The Union suggested criteria which included giving

weight to longshore experience and proposed accepting

all those on PMA's list with 100 hours of stevedoring

work. PMA rejected the Union's position because most

of the men who had acquired the requisite experience as

casuals were TW members of the Union. In April, 1970,

agreement was reached on the list of 186 applicants, but

not on the others. The question was arbitrated and on

May 4, 1970, the arbitrator decided that both PMA and

the Union had utilized appropriate criteria for selecting

applicants; chose the 186 (by then reduced to 172) and an

additional 60 whose names were on both the PMA and

Union lists, for registration.

Another alleged act of sponsorship within the

§10(b) period involves an applicant for "B" registration.

In June, 1967, James Phillips, a casual, unregistered

longshoreman, completed an application for "B" regis-

tration. He had no sponsor. On February 20, 1969, he

asked a Union official the status of his application. He

was shown his number on the list of applicants (#2074),

and was told "[Y] ou don't have a sponsor so I can't very

well tell you what to do about it, but there will be some

applications out in the near future... .[Glet you a

sponsor in the meantime." (Appendix A, page 8).

Phillips' only application, without a sponsor's

name, was made prior to the 10(b) period. No other

application ever became available and he submitted no

new application, nor did he get a sponsor. There is

nothing in the record to indicate that Phillips was

eligible for selection as a "B" registrant, that his name

was on PMA's list and rejected by the Union, or that the

10.

Union refused to submit his name in due course according

to valid standards and his place on the list.

E. In the Gatlin case, the earlier of the consolidated

cases, the Board found "sponsorship" and therefore

violations of §§ 8(b)(1)(A) and (2) based upon the Phillips’

application and the repudiated October 2, 1968 list of

applicants and sponsors. On that record, the Court of

Appeals was unable to understand how sponsorship

actually worked and its effect, and remanded the case.

In the PMA case, the Board found violations of

SS 8(bIA) and (2) based upon the purportedly

discriminatory dispatch by the Union of TW's to extra

jobs, and of § 8(b)(3) because of the Union's position in

negotiations on registration that work-experience be

considered.

After consolidation of the cases, the Board ren-

dered a decision which essentially combined the results

in the separate cases. It ordered the Union to cease and

desist from further use of the sponsorship system, from

discriminating in favor of Union members in dispatching

longshoremen, and from refusing to bargain in good faith.

It ordered the Union to pay all applicants for lost wages

resulting from its discrimination and to maintain

permanent records of all referrals.

F. The Court of Appeals affirmed the Board in all

respects. It held the "back pay" award proper without

proof that any person had been discriminated against.

Whereas the Act permits an order of reinstatement with

or without back pay, the court enforced an order of back

pay without reinstatement.

The court brushed aside the Union's contention

that sponsorship was a dead issue, long barred by §10(b)

of the Act. The opinion simply "revived" old acts and

practices, dubbing them interpretive evidence, despite

the fact there were no timely acts to construe.

Although there was not the slightest evidence that

the Union ever favored any of its members over non-

Union job seekers, the court affirmed the Board's

findings of discriminatory preference. In the face of a

history of continual bargaining, with proposals and

counter-proposals throughout, and an ultimate outcome

consistent with the Union's position, the court below held

that the Union had violated § 8(b)(3). It ordered enforce-

ment of the Board's entire order.

REASONS FOR GRANTING THE WRIT

lL. The Back Pay Order Is Not Authorized By the

Act. An Order For Back Pay On Account of Losses

Suffered Because of the Union's All Preferential

Dispatch Procedures Is Contrary To § 10(c) of the Act

In the Absence of Evidence That There Were Applicants

Ready, Willing and Able To Take Job Referrals Who

Were Refused Dispatch.

The Board found, and the court below agreed, that

the Union violated §§ 8(b)(1MA) and (2) of the Act by

giving dispatch preference for casual employment to its

TW members. Basing its decision on a statistical

compilation which showed an increase in the number of

12.

TWs dispatched and a decrease in the number of other

non-registered men dispatched as casuals, the Board

concluded that the Union was discriminating in favor of

the TWs and therefore against non-Union applicants. The

Board deemed it irrelevant that not one non-Union, non-

TW applicant ever claimed to have been denied referral;

not one ever claimed to have presented himself for

dispatch and been turned away in favor of a TW or any

other Union applicant. In reliance upon its statistically-

derived finding and without proof of loss by so much as

one individual, the Board made its backpay order.

There is no precedent for the order. Since this

Court's decision in Local 357, International Brotherhood

of Teamsters, etc. v. N.L.R.B., 365 U.S. 667, 81 S.Ct. 835

(1961), in which it held that an agreement requiring an

employer to obtain casual labor through a union hiring

hall is not per se a violation of the Act, litigation has

abounded. Its focus has been on discriminatory operation

of such hiring halls. Not once has a finding of discrimi-

nation been made in the absence of evidence that at

least one person was deprived of his rightful job oppor-

tunity. Not once has a back pay order been made on

behalf of a statistically created class which has no

representative victim of the supposed discrimination.

See, e.g., N.L.R.B. v. Local 542, 542-A & 542-B, Int'l. U.

of Operating Engineers, 485 F.2d 387 (3d Cir. 1973);

Pacific Maritime Association v. N.L.R.B., 452 F.2d 8 (9th

Cir. 1971); N.L.R.B. v. International Longshoremen's &

Ware. U., Local 12, 378 F.2d 125 (9th Cir. 1967); N.L.R.B.

13.

v. Local 138, Int'l. U. of Operating Engrs., 293 F.2d 187

(2d Cir. 1961); NLRB v. Local 138, Int'l. U. of Operating

Engrs., 321 F.2d 130 (2d Cir. 1963); NLRB v. Local 138,

Int'l. U. of Operating Engrs., 380 F.2d 244 (2d Cir. 1967).

The back pay order, running to an entire class, none

of whom have been before the fact finder, violates

concepts of due process. Proof of actual discrimination

must be made at the administrative level. Hence, proof

of actual entitlement to a back pay award must be made

at the administrative level. Else, at the compliance

stage each statistically ascertained "discriminatee" may

present himself, and without ever showing that his

decline in employment had been caused by unlawful

Union preference give to others, merely establish the

amount of his loss. Back pay would be awarded without

the issue of actual discrimination having been litigated

at any point in the proceedings.

This Court has held that the Board may not order

reimbursement in the absence of proof that the funds

would not have been paid but for the unfair labor

practice. Local 60, United Brotherhood of Carpenters,

ete., AFL-CIO v. N.L.R.B., 365 U.S. 651, 81 S.Ct. 875

(1961). The blanket order in this case is, with respect to

back pay, precisely the type of order the Court

invalidated in Local 60. If an order of reimbursement

without a showing that "but for" the unfair practice the

payments would not have been made is beyond the scope

of affirmative orders permitted by §10(c), can it be

otherwise with a back pay order? It would appear not.

14.

NLRB v. Local 2, United Assn. of Journey & Apprentices,

P. & P.I., 380 F.2d 428 (2d Cir. 1966).

Where no membership in the union was shown to

be influenced or compelled by reason of any

unfair labor practice, no "consequences of

violation are removed by the order [of reim-

bursement].... The order in those circum-

stances becomes punitive."

Local 60, United Brotherhood of Carpenters, etc., AFL-

CIO v. N.L.R.B., supra, 365 U.S. at 655.

The Board may not make an order which is punitive

rather than remedial. Republic Steel Corp. v. N.L.R.B.,

3ll U.S. 7, 61 S.Ct. 77 (1940). Therefore, it may not

"apply a remedy it has worked out on the basis of

experience, without regard to circumstances which may

make its application to a particular’ situation

oppressive. ..." N.L.R.B. v. Seven-Up Bottling Co., Inc.,

344 U.S. 344, 349, 73 S.Ct. 287 (1953).

The language of the Act is explicit. It says, with

respect to back pay, § 10(¢c) [29 U.S.C. § 160(c)]:

[Tlhe Board shall. . .order. . .reinstatement of

employees with or without back pay...

Provided, That where an order directs rein-

statement of an employee, back pay may be

required of the employer or labor organization,

as the case may be, responsible for the dis-

crimination suffered by him... .

Only the quoted language authorizes back pay. While

affirmative remedies are within the jurisdiction of the

Board, they are encompassed by the more general -

language of § 10(¢c), which provides:

15.

{[Tlhe Board shall. ..order. ..such affirmative

action. . .as will effectuate the policies of this

subchapter....

No where is "back pay" not linked with "reinstatement."

In the case at bar, there was no order of reinstate-

ment, nor could there be one. The dispatcher was em-

powered only to refer casuals to jobs. The employer did

the hiring. Dispatch was not the equivalent of hire,

hence no employment was created by dispatch. That

being the case, no right of reinstatement could arise by

virtue of a failure to dispatch. Therefore, no back pay

award was authorized by § 10(c).

The propriety of the back pay award is also open to

question because of the Colonial Hardwood Doctrine. In

United Furniture Workers of America, CIO (Colonial

Hardwood, 84 NLRB 563 (1949), the Board, albeit

referring solely to § 8(bXIMA) violations, distinguished

between those cases in which an employee is denied

access to a plant and those cases in which the union

causes a termination or disruption in a worker's

employment status. Where, as here, no employment

relation is created by dispatch, it does not appear that

failure to dispatch can cause an end to the employment

status. It follows that back pay is not the proper

remedy.

It would seem, from the language of § 10(c) that back

pay is an available remedy only where employment as a

matter of right is ended or disrupted by an unfair labor

practice, e.g., where "but for" the wrongful conduct the

16.

applicant would have had the job; "but for" the wrongful

conduct the employee would have retained the job. In

such cases, "reinstatement of employees with or without

back pay" is appropriate. But in a case such as the

instant one, in which dispatch is not the equivalent of

hire, failure to dispatch is not the equivalent of refusal

to hire or termination of employment; the right of

reinstatement does not exist; and back pay is

unauthorized.

2. Unfair Labor Charges Involving a Requirement of

Sponsorship for Applicants for Registration Do Not

Allege Continuing Violations. The Purported Violations

Based On Sponsorship Are Barred § 10(b) [29 USC

§ 160(b)] . a“

The court below, in effect, held that charges that the

Union imposed a requirement of sponsorship by Class A

longshoremen on applicants for B registration were

allegations of continuing violations. Citing Int'l Union,

United Auto, Aerospace & Agri. Imp. Workers v. NLRB,

363 F.2d 702 (D.C. Cir. 1966), a continuing violation,

refusal to bargain case, the court rejected the Union's

contention that the charges were time barred as § 10(b)

has been construed in Local Lodge #1424, Int'l. Assoc. of

Machinists v. NLRB, 362 U.S. 411, 80 S.Ct. 822 (1960).

Whether or not the concept of a continuing violation

is generally applicable to charges under the Act has

produced certain conflicts among the circuits. Notably,

with respect to charges of refusal to sign a contract,

there is a lack of unanimity of rationale and result.

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Thus, the Ninth Circuit holds that it is a continuing

violation, with each refusal in and of itself as a sub-

stantive matter, an unfair labor practice. NLRB v.

Strong, 386 F.2d 929, 931 (9th Cir. 196i). The First

Circuit has expressly rejected Strong, and, distinguishing

between the general (and presumably, continuing) failure

to bargain and a specific failure to do a particular act,

has placed a refusal to sign a contract in the latter

category, making the event finite in time. NLRB v.

Fields & Sons, 462 F.2d 748 (Ist Cir. 1972). The Sixth

Circuit, while agreeing with the First Circuit that a

refusal to sign a contract is not a continuing violation,

has adopted a different reason. NLRB v. McCready &

Sons, Inc., 482 F.2d 872 (6th Cir. 1972). The circuit has

looked to the purpose of the six months limitation period

and has decided that it exists, inter alia, to pinpoint the

time and nature of defenses. Since a refusal to sign is a

precise event at which moment there may be par-

ticularized defenses, the extension of the notion of

continuing violation to such an unfair labor practice

would, in the words of the McCready court, "contravene

the purpose of Section 10(b)." (482 F.2d at 875).

The unfair labor practice complained of here was the

requirement that applications be sponsored. The only

applications involved had been accepted by the Union

about two years prior to the earliest complaint. The

court below looked to two subsequent occurrences to

continue or revive what the Union urged was a defunct

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practice: the conversation about sponsorship, with

charging party Phillips; and, the submission of a

supposedly . sponsored list of applicants (almost

immediately thereafter withdrawn). Neither of these

events could, as a substantive matter, constitute unfair

labor practices. Only if, as the court below intimated,

the acceptance of sponsored applications long prior to

the § 10(b) period was a continuing violation, could those

later occurrences amount to timely charges. It appears

to the Union that this court precluded such a conclusion

by the Local Lodge #1424 decision. In light of the

differing views on the continuing nature of purported

violations and varying interpretations of the Local Lodge

#1424 decision, the question requires re-examination and

clarification by this Court.

3. The Decision Below Raises Significant Questions

Regarding the Interpretation of the National Labor

Relations Act.

(a). Does the duty of fair representation extend to

those who are not members of the bargaining unit? The

court below held that the sponsorship requirement

breached the Union's duty of fair representation under

§ 9 [29 USC $159] of the Act. The sponsorship require-

ment, if indeed there was one within the § 10(b) period,

applied to applicants for Union recommendation for

registration consideration by the Joint Port Committee.

Both Union and PMA could make recommendations to

that body; both made final selections, jointly. Is a Union

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bound by §9 to refer from among non-bargaining unit

applicants on the basis of unsponsored neutrality? The

note by this Court in Chemical Workers v. Pittsburgh

Plate Glass, 404 U.S. 157, 181, n.20, 92 S.Ct. 383 (1971), to

the effect that the Union has no duty "affirmatively to

represent nonbargaining unit members or to take into

account their interests...." intimates a negative

answer. The court below decided in the affirmative.

(b). Is the decision below contrary to Radio Officers

Union of Commercial Telegraphers, AFL v. NLRB, 347

U.S. 17, 74 S.Ct. 323 (1954)? The Court of Appeals held

that the Union's supposed sponsorship requirement

violated §§ 8(b)IXA) and 8(b)(2) [29 USC §§ 158(b)(1) A)

and 8(b)(2)] of the Act. Section 8(b)(2) prohibits a union

from causing or attempting to cause an employer to

discriminate against an employee in violation of § 8(a)(3).

That is, it is a violation if a union (1) causes or attempts

to cause employer discrimination which (2) encourages or

discourages membership in a labor organization. Not all

discrimination, according to the Radio Officers case is a

violation of the Act; only that which has the imper-

missible impact.

In the case at bar, not one applicant was refused an

application for registration; not one was denied place-

ment on the list; not one was rejected for employment

because of lack of a sponsor; / not one was required to

I7 The” Administrative Law Judge in the PMA case

expressly refused to find that the charging party,

Phillips, had been prevented from being assigned to his

share of longshore work, and refused to order the Union

to make Phillips whole. See Appendix E, p. ll, n. 23.

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join the Union. Furthermore, not one Union member was

required to or did remain in the Union because of

sponsorship. Can an assumed "discrimination," with

neither a discriminatee nor a coerced Union member be

an unfair labor practice? The Radio Officers case

compels an answer in the negative; the court below

answered in the affirmative.

(ec). May a violation of the Union's duty to bargain be

predicated upon its bargaining demands which, after the

fact, the Board deems capricious? The answer would

appear to be "no" in light of the proviso in § 8(d) [29 USC

§ 158(d)] that the obligation of the parties to meet and

confer "does not compel either party to agree to a

proposal or require the making of a concession." See,

NLRB v. American Nat'l. Ins. Co., 343 U.S. 395, 72 S.Ct.

824 (1952). Yet, the Board, as affirmed by the court

below, viewed a history of dozens of meetings, proposals

and counterproposals, all dealing with registration of

Class B longshoremen, and all culminating in a mutually

agreeable registration, as a violation by the Union of

§ 8(b)(3).. The decision appears to be in conflict with the

Fifth Circuit decision in NLRB v. American Aggregate

Co., 335 F.2d 253 (Sth Cir. 1964). In that case the court

dismissed a civil contempt order for a purported refusal

to bargain as previously directed by the Board. The

court there rejected the Board's contention that:

[Tl hough the respondent was not obligated to

agree on any particular matter at issue between

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it and the board, it can be compelled so to

agree by the device of making the right of

management to insist upon its own decision of

disputed issues depend upon whether [its]

decision.... appears to the board to be

capricious or not well advised.

(335 F.2d at 254). See also, NLRB v. Alva Allen

Industries, Inc., 369 F.2d 310 (8th Cir. 1966); NLRB v.

Wonder State Manufacturing Co., 344 F.2d 210 (8th Cir.

1965); NLRB v. Almeida Bus Lines, Inc., 333 F.2d 729 (ist

Cir. 1964). The decision below allows the Board to

dictate terms and conditions by finding that the parties

lack of agreement was over improper demands. It should

be reviewed to determine whether the Act permits the

Board to make such a decision in light of the caveat at

§ 8(d).

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

MARTHA GOLDIN and

GEORGE E. SHIBLEY

By MARTHA GOLDIN

Attorneys for Petitioner

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