Petition — International Longshoremen's & Warehousemen's Union, Local 13 v. National Labor Relations Board

SUPREME COURT OF THE UNITED STATES

October Term, 1978

NO.

IN THE an |

e a» : rd bef

> We

INTERNATIONAL LONGSHOREMEN'S

AND WAREHOUSEMEN'S UNION,

LOCAL 13,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GOLDIN & GOLDIN

‘MARTHA GOLDIN

Attorneys at Law

1724 North La Brea Avenue

’ Hollywood, CA 90046

(213) 851-7200

GEORGE E. SHIBLEY

Attorney at Law

| 505 Heartwell Building

Long Beach, CA 90802

’ (213) 437-2295

Attorneys for Petitioners

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

NO.

INTERNATIONAL LONGSHOREMEN'S

AND WAREHOUSEMEN'S UNION,

LOCAL 13,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GOLDIN & GOLDIN

MARTHA GOLDIN

Attorneys at Law

1724 North La Brea Avenue

Hollywood, CA 90046

(213) 851-7200

GEORGE E. SHIBLEY

Attorney at Law

505 Heartwell Building

Long Beach, CA 90802

(213) 437-2295

Attorneys for Petitioners

TOPICAL INDEX

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX "A" - Opinion of the Ninth Circuit

Court of Appeals

APPENDIX "B" - Decision and Order of the

National Labor Relations Board

APPENDIX "C" - Order of the Ninth Circuit

Court of Appeals

APPENDIX "D" - Judgment of the Ninth

Circuit Court of Appeals

NAY wn no wo re

12

TABLE OF AUTHORITIES

Case Page

Booster Lodge 405, Machinists v. NLRB,

412 U.S. 84 (1973) 10

NLRB v. Allis-Chalmers Manufacturing Co.,

388 U.S. 175 (1967) 7

NLRB v. Boeing Co.,

412 U.S. 67. (1973) 8, 9

NLRB v. Bricklayers Local No. 7,

563 F.2d 977 (9th Cir. 1977) 11

NLRB v. Hershey Foods Corporation,

513 F.2d 1083 (9th Cir. 1975) 11

NLRB v. International Brotherhood of Boilermakers,

409 F.2d 922 (10th Cir. 1969) 11

NLRB Retail Clerk's Union, Local 1179,

526 F.2d 142 (9th Cir. 1975) 10

Seofield v. NLRB,

394 U.S. 423 (1969) ae oe

Statutes

28 U.S.C. Section 1254(1) 2

National Labor Relations Act,

29 U.S.C. Section 158(b) 7

Section 158(b) (1) 6

Section 158(b)(1)(A) os Os

Section 158(b) (2) 2, 6

ii

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

NO.

INTERNATIONAL LONGSHOREMEN'S

AND WAREHOUSEMEN'’S UNION,

LOCAL 13,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI

Petitioner, INTERNATIONAL LONGSHOREMEN'S

AND WAREHOUSEMEN'S UNION, LOCAL 13, prays that

a Writ of Certiorari issue to review the judgment of the

United States Court of Appeals for the Ninth Circuit,

entered in this proceeding on October 16, 1978.

3 y OPINIONS BELOW

The opinion of the court below is reported at 58]

F.2d ~ A copy of the opinion is attached to this

petition as Appendix "A". The opinion of the National

Labor Relations Board is reported at 228 NLRB 174. A

copy of the opinion, which incorporates the decision of

the Administrative Law Judge, is attached to this

petition as Appendix "B",

JURISDICTION

The opinion of the Court of Appeals was filed

July 21, 1978. A timely petition for rehearing was denied

on September 19, 1978. A copy of the order denying the

petition for rehearing is attached to this petition as

Appendix "C". The judgment of the Court of Appeals

was entered on October 16, 1978. A copy of the

judgment is attached to this petition as Appendix "D".

This petition for Writ of Certiorari is being filed within

90 days of entry of the judgment. Jurisdiction of this

court is invoked pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

Whether a labor union may, without violating

§§8(b)(1MA) and (2) of the National Labor Relations Act,

unilaterally impose upon a member a job related penalty

for violating a valid, internal rule essential to the union's

existence as a voluntary association, so long as it

provides the member with the option to give up member-

ship and escape the penalty.

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are relevant por-

tions of §§8(b)(1)(A) and 8(b)(2) of the National Labor

Relations Act, 29 U.S.C. §158(b)(1)(A) and (2):

"(b) It shall be an unfair labor practice for a labor

organization or its agents—

(1) To restrain or coerce (A) employees in the

exercise of the rights guaranteed in Section 157 of this

title: provided that this paragraph shall not impair the

right of a labor organization to prescribe its own rules

with respect to the acquisition or retention of member-

ship therein; ***

(2) To cause or attempt to cause an employer to

discriminate against an employee in violation of sub-

sections (a)(3) of this Section, or to discriminate against

an employee with respect to whom membership in such

an organization has been denied or terminated on some

ground other than his failure to tender the periodic dues

and the initiation fees uniformly required as a condition

of acquiring or retaining membership.

STATEMENT OF THE CASE

The essentially undisputed facts are as follows:

International Longshoremen's and Warehousemen's

Union, Local 13 (Union) has, for many years, been the

exclusive bargaining representative of workers perform-

ing longshore labor in the Los Angeles-Long Beach harbor

area. The Union has a collective bargaining agreement

with the Pacific Maritime Association (PMA), the repre-

sentative of various employers engaged in longshore

operations. Pursuant to the collective bargaining agree-

ment, the Union and PMA jointly administer a dispgtch

hall from which longshore workers, whether or not they

are Union members, are dispatched to jobs.

The collective bargaining agreement prohibits dis-

crimination in favor of or against any longshore worker

because of membership or nonmembership in the Union.

The agreement does, however, make nonmember dis-

patching dependent upon a worker's payment of a pro

rata share of dispatch expenses. The Union's constitu-

tion, by-laws and general rules applicable to its members

only, provide for the payment dues on the first of each

month, with a grace period to the 15th of the following

month. They also provide that members must pay all

fines, assessments and other indebtness before dues will

be accepted.

Larry Sullivan, a 20-year member of the Union, with

knowledge of the provisions of the Union constitution,

by-laws and general rules, and the collective bargaining

agreement, was late in the payment of his Union dues.

At the end of the grace period allowed him under Union

rules, he offered a sum of money to a clerk in the Union

business office, which was an amount insufficient to pay

the fines, assessments and dues he owed. His money was

rejected and he became delinquent. Two days later he

was dispatched from the dispatch hall to a job. There he

was approached by a Union representative, who, after

ascertaining that Sullivan was still delinquent, asked him

to call a replacement and leave the job. Sullivan

refused. The next day, Sullivan paid his fines, assess-

ments and dues. The Union representative filed an

internal complaint against him for conduct unbecoming a

4.

Union member.

The matter went to the Union Grievance Com-

mittee, which, after a hearing, penalized Sullivan by

barring him from use of the dispatch hall for 30 days, 20

days suspended. Sullivan appealed to the Union's Labor

Relations Committee, which upheld the Grievance Com-

mittee. The Union Executive Committee reviewed the

matter and reminded Sullivan that he could avoid the

penalty by giving up his membership and taking advan-

tage of the pro rata provision of the collective bargain-

ing agreement. Sullivan was told that by going pro rata

he would be free of any Union control over him. He

rejected the option, insisted upon retaining his member-

ship in the Union and agreed to abide by the constitution,

by-laws and general rules. The Executive Committee

denied his appeal. The matter was then presented to the

full membership of the Union, which sustained the prior

action of its committees. The original penalty was

imposed and Sullivan lost his dispatch privilege for ten

days.

While Sullivan's case was going through its intra-

Union appeals, the Union posted a notice to its member-

ship concerning dues and assessments. After reciting the

applicable provisions of the constitution, by-laws and

general rules, the notice said,

"This means that the Officers have instruc-

ted the girls in the dues offices that if

payments are not made on Caucus and

5.

Convention assessments and fines, dues will

not be accepted and You Will Not Be

Allowed To Work,"

The Board found that by suspending Sullivan's dis-

patch privilege, the Union had violated §§8(b)(1MA) and

(2) of the Act, and that by instituting internal disciplin-

ary proceedings against Sullivan for refusing to leave the

job while he was delinquent and by posting its notice to

its members concerning the potential consequences of

their financial delinquency, the Union had violated

§8(b)(1(A). The Board made its order accordingly. The

court below affirmed and ordered’ enforcement,

disregarding the fact that the Union had acted solely to

enforce a membership rule, had scrupulously followed its

own internal procedures, had unilaterally imposed dis-

cipline on its member, without in any way involving

PMA, and had provided its member with a means to

escape all Union control and the job related discipline.

The court rejected the Union's contention that by

providing an escape hatch from its discipline, the Union

had acted precisely in the manner sanctioned by this

court in Scofield v. NLRB, 394 U.S. 423, 430 (1969), when

it said that §8(b)(1) leaves a union free to enforce its

valid rule against its members who may leave the union

and escape the rule.

REASONS FOR GRANTING THE WRIT

l The decision below is premised upon prior

decisions of this court whose implications need clarifica-

tion in light of the interpretation placed upon them in

this case.

In enacting the Taft-Hartley amendments to the

National Labor Relations Act (Act), Congress disavowed

any "desire to limit the labor organ: zation with respect

to either its selection of membership or expulsion

therefrom." NLRB v. Allis Chalmers Manufacturing Co.,

388 U.S. 175, 185 (1967). Congress wished to legislate

with respect only to union activity affecting the status

of employees, not with respect to union activity affect-

ing the status of members. "'But the committee [of the

Senate] did wish to protect the employee in his job if

unreasonably expelled or denied membership.'" Ibid. The

Congressional intent to distinguish between union unfair

labor practices and legitimate union regulation of mem-

bership is embodied in the 48(b) proviso exempting from

the section's enumerstion of a labor organization's unfair

labor practices a union's "own rules with respect to the

acquisition or retention of membership therein." (29

U.S.C. §158(b)(1)(A).

The essence of the distinction intended by Congress

was synthesized by this court in Scofield v. NLRB,

supra., 394 U.S. 423, when it said,

"Section 8(b)(1) leaves a union free to en-

force a properly adopted rule which reflects

a legitimate union interest, impairs no

policy the Congress imbedded in the labor

laws, and is reasonably enforced against

union members who are free to leave the

union and escape the rule."

(394 U.S. at 430).

| Relying upon the "internal-external" distinction

drawn in NLRB v. Boeing Co., 412 U.S. 67 (1973) the court

below held inapplicable to the disciplinary measure taken

by the Union in this case, the Scofield "escape hatch"

principle. Yet, the court recognized, as indeed has

everyone connected with this case, that the Union acted

to enforce a rule against its member only. The rule had

been adopted in accordance with the Union's constitu-

tion, by-laws and general rules. It reflected not merely a

legitimate, but a critical Union interest. It was enforced

by an impeccably correct, democratic procedure. No

Congressionally mandated policy was impaired by the

rule. In fact, the rule had been promulgated to insure

the financial ability of the Union to exist as an

organization, a purpose indisputably approved by Con-

gress. Finally, as the court below conceded, the Union

would not, could not and did not try to enforce its rule

against an unwilling person.

"The Union Executive Board reviewed the

matter and advised Sullivan that he could

avoid the penalty by dropping his member-

ship in the Union and converting to the 'pro -

rata status'****So he could have... ."

(Appendix A, pages A-3, A-5)

The court below misplaced its reliance upon Boeing.

The case at bar is simply not a Boeing situation. Here

there never has been any contention by the Union that it

is entitled to discipline a member after he has opted for

pro rata status. Quite the contrary: the Union has

consistently maintained that it has no right unilaterally

to discipline an employee after he has given up union

membership, for a breach of union rules committed while

he was still a member.

This is merely a case in which the union enforced a

valid, internal rule by affecting a member's status in the

union. Neither the rule nor its enforcement touched

upon nonmembers’ employment status. The union im-

posed its discipline without involving the employer,

without changing or seeking to change the employment

relation. No collective agreement was implicated. As

the area arbitrator decided in ruling on the grievance

brought by PMA as a result of the Sullivan discipline:

"The Union did not violate any terms of the PCLCD

[collective bargaining agreement] in conducting the trial

and assessing a penalty in the case of their mem-

ber...." (Respondent's [Union's] Exhibit 4 before the

Board).

The court below used the "internal-external" lan-

guage of Boeing as though it were a litmus paper test. It

would appear that, contrary to its opinion, a Scofield-

9,

type option creates a crucial distinction between

"internal" discipline affecting membership status and

"external" discipline affecting employment status. The

option assures that it is the employee, not the union

member, who has the key to his job in his pocket. Cf.

Booster Lodge 405, Machinists v. NLRB, 412 U.S. 84

(1973)

The court below misconceived the implications of

Scofield and Boeing in the circumstances of this case.

Its construction of those cases justifies a grant of

certiorari to review the judgment below.

2. The decision below interferes with a significant

right reserved by Congress to a labor organization.

The right of a union to set and enforce its

membership obligations is one of its vital concerns. A

union is, after all, a voluntary association. NLRB v.

Retail Clerk's Union, Local 1179, 526 F.2d 142, 145 (9th

Cir. 1975). It must look to the self-discipline of its

members for its very existence. The president of the

Union explained the significance of the right involved in

this case at the arbitration hearing:

[W]e have a clear-cut demarcation.... as

to what their rights and prerogatives are as

it applies to their members, and once they

cross that demarcation into the internal

affairs of the Union, it is going to create

chaos. By law and by tradition and by the

self-autonomous rules imposed on them-

10.

i

selves by the rank and file to discipline their

men—not to have this .... would be deplor-

able, with men going every which-way. In

order to maintain...order and ... dise-

ipline ... the Union must maintain ... pro-

cedure and regulations in order that the men

don't go off half-cocked in doing their thing.

(Respondent's [Union's] Exh. 3, p. 23, before the Board).

The decision below represents a unique incursion by

the Board into the exclusive preserve of a union: control

over its membership by fair, democratic and unilateral

sanctions. It creates an ipse dixit in the law, penalizing

a union for refusing to affect a non-member's employ-

ment status. Compare e.g., NLRB v. Bricklayers Local

No. 7, 563 F.2d 977 (9th Cir. 1977). Such prior decisions

as are at all similar involve attempts by unions, through

employers, to affect the jobs of non-members, persons

with the equivalent of pro rata status. E.g., NLRB v.

Hershey Foods Corp., 513 F.2d 1083 (9th Cir. 1975); NLRB

v. International Brotherhood of Boilermakers, 409 F.2d

922 (10th Cir. 1969). Hence, this case stands as the

furtherest extension of the Board's power to reach a

union's regulation of its membership.

Because the decision below markedly affects an area

of union concern so vital that Congress expressly

provided for it in §8(b)(1)(A) of the Act, this Court should

grant certiorari.

ll.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

GOLDIN & GOLDIN

GEORGE E, SHIBLEY

By MARTHA GOLDIN

Attorneys for Petitioner

12.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR ) NO. 77-2313

RELATIONS BOARD, OPINION

Petitioner, )

)

v. )

) ’r,

INTERNATIONAL ) YW “8p

LONGSHOREMEN'S ) &, Su

AND WAREHOUSEMEN'S la, “ae “8

UNION, LOCAL 13, ) “em” Ye,

); es ow

Respondent. 6 9 feng

Application For Enforcement of An Order of

The National Labor Relations Board

Before: SNEED and KENNEDY, Circuit Judges, and

CALLISTER,* District Judge.

SNEED, Circuit Judge:

The underlying question presented by this appeal is

whether a refusal by a union to permit a member to work

for the employer for a ten-day period, as a sanction

imposed by the union on the member for his failure to

pay when due certain fines and assessments, constitutes

an unfair labor practice prohibited by sections 8(b)(1)(A)

Hon. Marion J. Callister, United States District Judge

for the District of Idaho, sitting by designation.

Appendix A

and 8(b)(2) of the National Labor Relations Act, 29

U.S.C. § 158(b)(1IMA) and (2). We hold that it does and,

consequently, grant enforcement of the National Labor

Relations Board's order.

The facts, in a somewhat condensed form, as found

by the Board are these. The International Longshore-

men's and Warehousemen's Union Local 13 (Union) and the

Pacific Maritime Association (PMA), the collective

bargaining representative of various employers engaged

in longshore and stevedoring operations, are parties to a

collective bargaining agreement which, although it does

not contain a provision requiring employees to be

members of the Union as a condition of employment,

does require that employees of PMA employers be dis-

patched through a hall administered jointly by the Union

and the PMA. The agreement further provides that there

be no discrimination between members of the Union and

nonmembers in dispatching, so long as nonmembers pay

the "pro rata share of the expenses related to the

dispatching hall, the Labor Relations Committee, etc."

The Union's constitution, by-laws and general rules fix

the date that membership dues are due and payable and

also provide that all "fines, assessments or other in-

debtedness must be paid before your dues will be

accepted.”

Larry Sullivan, a member of the Union since 1953,

offered to pay within the time allowed his dues but not

certain fines and assessments which he owed. The dues,

ae

unaccompanied by payment of the fines and assessments,

were refused by the Union. Thereafter, Sullivan became

delinquent with respect to his dues. On Sunday, January

18, 1976, two days after he became delinquent, Sullivan

was sent from the dispatch hall to a job and was there at

the jobsite approached by the Union's Business Represen-

tative who requested that Sullivan call a replacement for

himself and leave the job. Sullivan refused. On the next

day, Sullivan paid his dues together with the fines and

assessments.

On the same day, Monday, January 19, 1976, the

Business Representative filed an "internal complaint"

against Sullivan and on March 2, 1976 a grievance

committee was convened, After a hearing the commit-

tee imposed a penalty against Sullivan consisting of

barring his use of the dispatch hall for 30 days, of which

20 were suspended. Sullivan appealed to the labor

relations committee which denied his appeal. The Union

Executive Board reviewed the matter and advised Sulli-

van that he could avoid the penalty by dropping his

membership in the Union and converting to the "pro rata

status." He was advised that this would relieve him of

any control by reason of membership by the Union.

Sullivan rejected the suggestion and the Executive Board

denied his appeal. Thereafter, his appeal was submitted

to a meeting of the full membership where again it was

denied. On April 2, 1976 the penalty was imposed and for

a period of ten days Sullivan was denied use of the

dispatch hall.

During the pendency of the Sullivan appeals, the

Union, in a notice to the membership and after reciting

the provisions of the constitution, by-laws and general

rules applicable to dues, fines and assessments, stated

that, "This means that officers have instructed the girls

in the dues office that if payments are not made on

Caucus and Convention assessments and fines, dues will

not be accepted and you WILL NOT BE ALLOWED TO

WORK." (Emphasis in original).

The Board found that the Union had violated the Act

in three respects. It violated section 8(b)(1)(A) and (2) by

threatening to refuse and by refusing to dispatch Sullivan

for a ten-day period because he failed to comply with a

rule concerning the payment of fines, and assessments.

Second, the Union violated section 8(b)(1) (A) by threat-

ening to institute, and by instituting disciplinary action

against Sullivan for his failure to leave the jobsite on

Sunday, January 18, 1976. Finally, the threats to prevent

other members from working if they do not properly pay

fines and assessments violated section 8(b)(1)(A). The

Board's order, which we will not recite in detail, was

properly fashioned to respond to these vioations, provi-

ding the Board correctly interpreted the Act.

As we have indicated, we believe it did. The

Supreme Court in NLRB v. Boeing Co., 412 U.S. 67, 73-74

(1973) observed:

"In Seofield [Scofield v. NLRB, 392 U.S. 423

A-4

(1969)] we decided that Congress intended to

distinguish between the external and inter-

nal enforcement of union rules, and there-

fore the Board would have authority to pass

on those rules affecting an individual's em-

ployment status but not on his union mem-

bership status."

Scofield, at 394 U.S. 428, quoted NLRB v. Allis-Chalmers

Mfg. Co., 388 U.S. 175, 195 (1967) to the effect that

section 8(b)(1(A) was intended by Congress to permit a

union to enforce its internal regulations as it saw fit

"aside from barring enforcement of a union's internal

regulations to affect a member's employment status."

This court has recognized this limit on union power, See,

NLRB v. Retail Clerks Union, Local 1179, 526 F. 2d 142,

145, n.2 (9th Cir. 1975).

The issue thus becomes whether the Board was

correct in finding that the Union's actions here ques-

tioned were an attempt to enforce the union's internal

regulations by "affecting an individual's employment

Status" rather than his union membership status. We hold

that the Board was correct. The enforcement was to

deprive Sullivan of work. Nothing more profoundly

affects "an individual's employment status."

The Union attempts to refute this proposition by

pointing out that Sullivan could have avoided the loss of

work by surrendering his membership in the Union. So he

could have; but the Board's characterization of the

Union's action remains valid. To present a union member

with the Hobson's choice between surrender of his

membership or temporary loss of employment cannot be

characterized fairly as action not "affecting an indivi-

dual's employment status." It is sophistry to insist

otherwise.

Finally, the Union argues that Sullivan at the

general membership meeting waived his right to initiate

proceedings before the Board. The Administrative Law

Judge and the Board found otherwise and substantial

evidence in the record as a whole supports this finding.

ENFORCE THE ORDER.

A-6

FPW

228 NLRB No. 174 D—2317

Long Beach, Calif.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD

INTERNATIONAL

LONGSHOREMEN'S

AND WAREHOUSEMEN'S

UNION, LOCAL 13,

(Pacific Maritime Association)

and Case 21—-CB—5631

LARRY SULLIVAN, an

Individual

DECISION AND ORDER

On December 16, 1976, Administrative Law Judge

William J. Pannier II] issued the attached Decision in this

proceeding. Thereafter, Respondent filed exceptions and

a supporting brief.

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 panei.

Appendix B

The Board has considered the record and the

attached Decision in light of the exceptions and brief y

and has decided to affirm the rulings, findings, and

conclusions of the Administrative Law Judge and to

adopt his recommended Order.

1/ Respondent contends, inter alia, that it was deprived

~ of due process by the Board's denial of the request,

dated December 28, 1976, of its counsel for an

extension of time to April 15, 1977, to file exceptions

and a brief on the ground that an exacerbation of

rheumatic heart disease seriously limited his work

capacity and that he was scheduled to undergo open

heart surgery on January 17. As the Board granted

an extension to January 17, another attorney was

afforded sufficient time to study the record and

issues herein and on that date filed exceptions and a

brief which ably present Respondent's case. Accord-

ingly, we find there was no deprivation of due

process and we shall therefore deny Respondent's

request that its original counsel now be permitted to

file supplemental exceptions and a brief by April 15,

1977.

B-2

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor Relations

Board adopts as its Order the recommended Order of the

Administrative Law Judge and hereby orders that the

Respondent, International Longshoremen's and Ware-

housemen's Union, Local 13, Long Beach, California, its

officers, agents, and representatives, shall take the

action set forth in said recommended Order.

Dated, Washington, D.C. April 12, 1977

John H. Fanning, Member

John A. Penello, Mé..aber

Peter D. Walther, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

B-3

JD-+~SF)-291-76

Long Beach, Calif.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

BRANCH OFFICE

SAN FRANCISCO, CALIFORNIA

INTERNATIONAL

LONGSHOREMEN'S

AND WAREHOUSEMEN'S

UNION, LOCAL 13,

(Pacific Maritime Association)

and | Case 21--CB—5631

LARRY SULLIVAN, an

Individual

Edward P. Nichols, of Los Angeles,

Calit., appearing for the General

Counsel.

George E. Shibley, of Long Beach,

alif., appearing for the Respondent.

DECISION

Statement of the Case

WILLIAM J. PANNIER II, Administrative Law

Judge: This matter was heard by me in Los Angeles,

California, on August 5, 1976. 1/ On May 20, the

Regional Director for Region 21 of the National Labor

Relations Board issued a complaint and a notice of

hearing, based upon an unfair labor practice charge filed

1/ Unless otherwise stated, all dates occurred in 1976.

B-4

on April 8, alleging violations of Section 8(b)(1)(A) and (2)

of the National Labor Relations Act, as amended, 29

U.S.C., Sec. 151, et seq., herein called the Act.

All parties have been afforded full opportunity to

appear, to introduce evidence, to examine and cross-

examine witnesses, and to file briefs. Based upon the

entire record, upon the briefs filed on behalf of the

parties, and upon my observation of the demeanor of the

witnesses, I make the following:

Findings of Fact

I. Jurisdiction

Pacific Maritime Association, herein called PMA, is

a California corporation with offices and places of

business in Wilmington and San Francisco, California, and

is the collective-bargaining representative, on a multi-

employer basis, of its various employer-members in

longshore and stevedoring operations in and about the

vicinity of the ports of Los Angeles and Long Beach,

California, and other Pacific Coast ports. The employer-

members of PMA annually derive revenue in excess of

$50,000 from the transportation of goods and passengers

between the State of California and other states and

foreign countries. Therefore, I find that at all times

material, PMA and its employer-members have been

employers engaged in commerce and in a_ business

affecting commerce within the meaning of Section 2(6)

and (7) of the Act.

B-5

Il. The Labor Organization Involved

At all times material, International Longshoremen's

and Warehousemen's Union, Local 13, herein called

Respondent, has been a labor organization within the

meaning of Section 2(5) of the Act.

III. Issues

l. Whether, for a 10-day period in April, Respondent

refused to dispatch Larry Sullivan to work for employer-

members of PMA for reasons other than his failure to

tender his dues, which included his share of the expenses

of the dispatching hall administered jointly by PMA and

Respondent, and if so, whether Respondent thereby

violated Section 8(b)(1)(A) and (2) of the Act.

2. Whether Respondent threatened to and did

institute discipline against Larry Sullivan for refusing to

voluntarily remove himself from his job for reasons other

than his failure to tender dues, and if so, whether

Respondent thereby violated Section 8(b)(1(A) of the

Act.

3. Whether Respondent threatened to prevent

members from working if they did not pay fines and

assessments, and if so, whether Respondent thereby

violated Section 8(b)(1(A) of the Act.

IV. The Alleged Unfair Uabor Practices

A. The Facts

For the most part, there is no dispute regarding the

operative facts in this matter. Respondent and PMA

have been parties to a collective-bargaining agreement.

B-6

That agreement contains no provision requiring em-

ployees to be members of Respondent as a condition of

employment. It does, however require that employees of

PMA must be dispatched through a dispatch hall adminis-

tered jointly by Respondent and PMA. It further requires

that there be no discrimination between members and

nonmembers of Respondent in dispatching, so long as the

latter pay the "pro rata share of the expenses related to

the dispatching hall, the Labor Relations Committee,

ete." Respondent did not dispute the testimony that at

the time material herein, the pro rata share was $21 per

month,

With regard to its members, Respondent's constitu-

tion, by-laws and general rules set forth two substantive

requirements pertinent to this proceeding. The first

provides that dues are owing and payable on the first day

of each month, but Respondent allows a grace period

until the 15th of the following month for payment of the

amount owing. The second provision requires that, "All

fines, assessments or other indebtedness must be paid

before your dues will be accepted.”

On Thursday, January 15, Larry Sullivan, a member

of Respondent since 1953, reported to Respondent's

business office to pay his dues for the month of

December 1975. The testimony was conflicting with

respect to the total amount which Sullivan owed Respon-

dent for dues, fines and assessments. However, there is

agreement that Sullivan lacked sufficient funds to pay

B-7

for all items which he owed, although it is undisputed

that he did possess sufficient funds to pay the amount

which he owed for his dues. Moreover, the amount which

he possessed would also have been sufficient to cover the

pro rata share had he been a nonmember of Respondent.

2/ As Sullivan lacked sufficient funds to pay all fines

one assessments levied against him, the clerical em-

ployee of Respondent with whom Sullivan spoke declined

to accept the dues payment which Sullivan proffered,

appparently relying upon the above-quoted provision in

Respondent's constitution, by-laws and general rules.

Due to the need to take his mother to the doctor and to a

malfunction in his automobile on the following day,

Sullivan did not return to the business office on Friday,

January 16. Since the business office was closed during

weekends, it was not until Monday, January 19 that he

paid the full amount, including fines and assessments,

owing to Respondent.

In the meantime, Sullivan did go to the dispatch hall

and was dispatched to a job on the evening of Sunday,

January 18. There he was approached by Business

Representative Paul Loveridge, who inquired if Sullivan

2/ No issue was raised concerning the time period for

~ payment of the pro rata share, and accordingly,

there is no contention that there was any difference

in the grace period accorded nonmenbers for paying

such sums than for members! dues payments.

had paid the monies owing to Respondent and who

insisted that Sullivan call a replacement when the latter

explained what had occurred at the business office on

January 15. Sullivan, relying upon the fact that he had

tried to pay part of what he owed, refused to call a

replacement. On Monday, January 19, Loveridge filed an

internal complaint against Sullivan, charging him with

"Conduct Unbecoming a Union Brother" and asserting in

support thereof: "I went to the job LB 21 where this

brother was driving crane. I asked him if his dues was

paid and he said no. I asked him to call a replacement

and he refused,"

A grievance committee convened on March 2, and

after a hearing, imposed a penalty against Sullivan which

barred his use of the dispatch hall for 30 days, 20 days of

which were suspended with the result that the penalty

entailed a 10-day interruption in Sullivan's ability to be

dispatched to PMA. Thereafter, the matter progressed

through a series of meetings before different bodies — on

March 3 and 10 before the labor relations committee, on

March 25 before Respondent's executive board and on

April 1 before a meeting of Respondent's membership.

Sullivan's appeals were denied and the 10-day penalty was

ultimately imposed from approximately April 2 to 12,

though Sullivan made efforts to be dispatched during this

period. Two points, should be noted with regard to these

various meetings. First, it is clear, and I find, that

during the course of these proceedings, Sullivan was

advised that he could avoid any interruption in dis-

patching by dropping his membership in Respondent and

converting to pro rata status, thereby, as explained to

him by Respondent's officials, depriving Respondent of

any control over him as a member. However, Sullivan

rejected this alternative and insisted upon retaining his

membership.

Second, there was a dispute regarding whether

Sullivan agreed to acquiesce in Respondent's disciplinary

decision. Arturo Almeida, Respondent's current presi-

dent, testified that at the general membership meeting,

Sullivan had been asked if "he wanted to be part of the

organization and was willing to abide by the rules and

regulations and the consequences of being a member of

Local 13." While Almeida testified that "consequences"

had meant acceptance of the general membership's

decision, it was not altogether clear from his testimony

whether this had been clearly explained to Sullivan at the

time, particularly as Raul Olvera, Respondent's secre-

tary-treasurer, made no reference to this particular

exchange. What all of the witnesses -- Sullivan, Almeida

and Olvera -- did describe as having occurred at that

meeting was a discussion arising from Sullivan's expres-

sed desire to be represented before the general member-

ship by outgoing President Rubio, in which it was

explained to Sullivan that if he decided to be repre-

sented, he would have to abide by Respondent's rule that

B-10

he could not speak on his own behalf and that he would

have to abide by those consequences. For example,

Olvera testified that when Sullivan had asked Almeida

about representation by Rubio, "I said, 'Time out, Art.

You better tell him that there aren't any rebuttals and

does he wish' -- I have it here: 'Would he be willing to

accept the consequences of the appeal?'" Thus, testified

Olvera:

[Almeida] asked Larry, he says, that

"Almeida interjected and told Sullivan that

after Brother Rubio stated his position" —

was he aware of this—"after Brother

Rubio stated his position, there would be no

rebuttal and would he be willing to accept

the consequences to this appeal?"

Sullivan conceded that he had told Respondent's

agents that he would abide or live with Respondent's

constitution, by-laws and general rules. However, he

testified that he had made such statements in reply to

questions concerning whether he intended to remain a

member of Respondent, rather than convert to pro rata

status. He denied ever having been asked whether he

was willing to accept union discipline and abide by

Respondent's decision in the dispute concerning the delay

in the January payments. He further testified that the

only agreement which he had made with respect to the

disciplinary proceedings was that he was willing to

permit Rubio to represent him before the general

membership and would accept the decision rendered

without insisting upon speaking on his own behalf.

In March, while Sullivan's case was wending its way

through the various steps leading to the April member-

ship meeting, Respondent issued a notice to its members

regarding "Dues Increase and Assessment." The notice

first summarized the financial obligations of members,

taking into account the monthly dues, a death assessment

and installment payments on an additional $34 assess-

ment. After reciting the above-quoted provision of the

constitution, by-laws and general rules pertaining to

payment of "fines, assessments or other indebtedness"

before dues would be accepted, the notice then reads:

"This means that the Officers have instructed the girls in

the dues office that if payments are not made on Caucus

and Convention assessments and fines, dues will not be

accepted and you WILL NOT BE ALLOWED TO WORK."

B. Analysis

Respondent concedes that its conduct in this case

was based upon its internal rule whereby members' dues

would not be accepted until all fines and assessments

were paid. As the effect of not accepting dues was to

bar members' access to the dispatch hall, and therefore

to employment with PMA, the General Counsel contends

that Respondent's conduct violated Section 8(b)(1)(A) and

(2) of the Act.

Integral to the policy underlying both Sections

8(b)(1MA) and (2) of the Act was the intent to separate

B-12

membership obligations owed by employees to their labor

organizations from the employment rights of those

employees. "The policy of the Act is to insulate

employees' jobs from their organizational rights." Radio

Officers' Union v. N.L.R.B., 347 U.S. 17, 40, 74 S. Ct.

323, 335 (1954). More specifically, Section 8(b)(1) and (2)

and Section 8(a)(1), (2) and (3) of the Act "form a web, of

which §8(b)(1)(A) is only a strand, preventing the union

from inducing the employer to use the emoluments of the

job to enforce the union's rules." Scofield v. N.L.R.B.,

394 U.S. 423, 428-429, 89 S. Ct. 154, 157 (1969).

Similarly, "§§8(a)(3) and 8 (b)(2) were designed to allow

employees to freely exercise their right to join unions, be

good, bad, or indifferent members, or abstain from

joining any union without imperiling their livelihood."

Radio Officers' Union, supra. Consequently, while a

labor organization is free, under the proviso to Section

8(b)(1(A), "to prescribe its own rules with respect to the

acquisition or retention of membership therein," its

ability to enforce such rules is restricted by "barring

enforcement of a union's internal regulations to affect a

member's employment status." N.L.R.B. v. Allis-

Chalmers Manufacturing Co., 388 U.S. 175, 195, 87 S. Ct.

2001, 2014 (1967). For example, while a labor organiza-

tion may freely fine a member for violation of a

membership rules, "the same rule could not be enforced

by causing the employer to exclude him from the work

force or by affecting his seniority without triggering

B-13

violations of §§8(b)(1), 8(b)(2), 8(aXl), 8(a)(2), and 8(a)(3)."

Scofield, supra.

An exception to this prohibition against labor orga-

nization interference with employees' employment is

provided under Section 8(a) (3) of the Act, allowing labor

organizations to seek the discharge of employees who

have failed to comply with agreements requiring "as a

condition of employment membership therein on or after

the thirtieth day following the beginning of such employ-

ment or the effective date of such agreement... ."

Yet, this is a quite limited exception, for "the burdens of

membership upon which employment may be conditioned

are expressly limited to the payment of initiation fees

and monthly dues." N.L.R.B. v. General Motors Corp.,

373 U.S. 734, 742, 83 S. Ct. 1453, 1459 (1963). "If the

union imposes any other qualifications and conditions for

membership with which he is unwilling to comply, such

an employee may not be entitled to membership, but he

is entitled to keep his job." Union Starch & Refining

Company, 87 NLRB 779, 784, enfd. 186 F.2d 1008 (C.A. 7,

1951), cert. denied 342 U.S, 815 (1951). 3/

3/ A labor organization may also take action which

~ interferes with employment "in instances where the

facts show that the union action was necessary to

the effective performance of its function of repre-

senting its constituency." International Union of O-

rating Engineers, Local T8, AFL-CIO (William F.

ur , a owever, s defense

B-14

Respondent had no union security clause in its

agreement with PMA. It operated an exclusive dispatch

hall through which it dispatched employees to PMA, It

threatened to refuse to dispatch members from that hall

for failure to pay fines and assessments levied against

them. It threatened to and did institute discipline

against Sullivan, leading to his being barred from

dispatch for a 10-day period, because he had failed to pay

the fines and assessments levied against him, even

though he had tendered an amount sufficient to satisfy

either the dues which he owed or a pro rata share. While

there is no dispute concerning the validity of the

obligation to pay these fines and assessments, the

General Counsel does contend that Respondent's method

of enforcing payment-involving an employment-related

sanction—does violate the Act. The foregoing analysis

amply supports that contention. "While it might well be

convenient for the Union, in enforcing its own internal

rules of conduct, to have available an employment-

related sanction, it can hardly be said that such severe

sanctions are necessary to that end," Operating Engine-

ers, Local 18, supra.

Therefore, I find that by refusing to dispatch Larry

Sullivan for work for employer-members of PMA for

would not be applicable to the situation presented by

the instant case and it has not been raised by

Respondent.

B-15

reasons other than his failure to tender his dues, which

included his share of the expenses of the dispatching hall,

Respondent violated Section 8(b)(1)(A) and (2) of the Act.

4/ Moreover, by threatening to and by instituting

discipline against Sullivan for refusing to voluntarily

remove himself from his job for reasons other than his

failure to tender dues and, further, by threatening to

prevent members from working if they did not pay

assessments and fines, Respondent violated Section

8(b)(1)(A) of the Act.

However, this does not end the matter insofar as the

interruption of Sullivan's dispatches is concerned. Re-

spondent urges, in essence, two additional points. First,

it is argued that when Sullivan was offered the option of

relinquishing his membership and of switching to pro rata

status, prior to the actual implementation of the penalty

imposed by the grievance committee, he was accorded an

option that would have preserved his right to continue

being dispatched without interruption. Rather than

accept pro rata status, Sullivan insisted upon continuing

his membership in Respondent, even though advi»ed that

4/ While the General Counsel did not show specific jobs

to which Sullivan could have been dispatched during

the 10-day period that he was barred from the hall,

such a showing is not necessary to establish a

violation. See Utility and Industrial Construction

Company, 214 NLRB 1053 and cases cited in footnote

B-16

by such insistence he would be subject to the penalty of

being barred from the dispatch hall for 10 days. In these

circumstances, argues Respondent, Sullivan may not now

complain of the penalty, since he had a means of

escaping it by leaving Respondent's membership and

continuing to be dispatched on a pro rata basis.

In making this argument, Respondent relies upon the

results reached in Allis-Chalmers, supra, and Scofield,

supra. Yet, in Allis-Chalmers, the union had fined its

members and in Scofield, the penalties had been fines

and suspensions from membership. In both cases, the

Supreme Court distinguished between internal and

external enforcement of union rules, with the latter

mode of enforcement being defined as involving inter-

ference with a member's employment and being condem-

ned as prohibited by the Act. Allis-Chalmers, 388 U.S.

at 195, 87 S. Ct. at 2014; Scofield, 394 U.S, at 428-429, 89

S. Ct. at 157. In essence, therefore, Respondent's

argument is an effort to compare apples and oranges, for

it attempts to apply the principles of internal sanctions

to situations where external sanctions have been applied.

Yet, Congress has prohibited the latter in circumstances

such as are present in the instant case. In fact, this

argument is the same as that advanced by the dissenting

Board member in International Brotherhood of Team-

sters, etc, (Frank Boston), NLRB 1494, one of the cases

considered by the Supreme Court in Radio Officers'

Union, supra. It was an argument rejected in that case

B-17

and it must, accordingly, be rejected here. Therefore, I

find that Respondent cannot escape liability for its

violations of Section 8(b)(1)(A) and (2) by virtue of the

fact that membership was not compulsory and that

Sullivan could have been relieved of any interruption in

dispatching by relinquishing his membership in Respon-

dent and converting to pro rata status.

Respondent's second argument regarding Sullivan is

that he specifically agreed to accept the discipline

meted out by Respondent in this case. This argument is

predicated upon the testimony concerning Sullivan's

expressions of willingness to abide by Respondent's

disciplinary decision. However, as pointed out above,

Sullivan's statements in this regard appear to have been

directed to questions regarding his desire to continue as

a member of Respondent and regarding his willingness to

waive speaking on his own behalf in return for represen-

tation by Rubio at the April general membership

meeting. The latter, of course, would not constitute a

waiver of a statutory right to protest the employment-

related discipline imposed by Respondent and, as found

above, Respondent is not entitled to rely upon Sullivan's

desire for continued membership as a means of enforcing

an internal rule in a manner proscribed by the Act. At

no point was there testimony—either in this proceeding

or during the proceeding before Area Arbitrator George

Love—showing that Sullivan "consciously yielded or

clearly waived" his right to statutory protection from

B-18

Respondent's employment-related sanction. See Unit

Drop Forge Division, Eaton Yale & Towne, Inc.

171 NLRB 600, 601. Yet, at the very least, that must be

established for a waiver argument to be advanced in the

context of this case, since "Waiver of a statutory right

will not lightly be inferred.". C & C Plywood Corpora-

tion, 148 NLRB 414, 416, enforcement denied 351 F.2d 224

(C.A. 9, 1965), reversed and enfd. 385 U.S. 421, 87 S. Ct.

559 (1967). In these circumstances, Sullivan's statements

regarding his willingness to abide by Respondent's rules,

made in the context of his expressions of desire to

continue being a member of Respondent rather than

convert to pro rata status, and his expressed willingness

to forego speaking on his own behalf in return for

representation by Rubio, are not a sufficient basis for

consideration of a waiver theory of defense to the

employment-related sanction imposed against him.

In sum, it is not Respondent's right to impose fines

and assessments which is under attack here nor is it

Respondent's right to collect the specific fines and

assessments owed by Sullivan which is at issue. Those

rights are conceded by the General Counsel, as indeed he

must. Nor does the General Counsel challenge the

substance of Respondent's internal rule, making the

payment of fines, assessments and other indebtedness the

price for acceptance of dues. Such a rule, on its face,

does not impinge nor threaten to impinge upon the

employment of Respondent's members. Rather, this case

B-19

presents a challenge solely to Respondent's resort to its

dispatch hall as a vehicle for enforcing the collection of

fines and assessments--in short, Respondent's reliance

upon "an employment-related sanction" to enforce an

internal rule regarding the collection of fines and

assessments. By resorting to this vehicle, Respondent

has taken the step from internal enforcement to external

enforcement of its rule, and in this manner has violated

Section 8(b)(1)(A) and (2) of the Act.

V. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of Respondent set forth above, occur-

ring in connection with PMA's operations described in

section I above, have a close, intimate and substantial

relation to trade, traffic and commerce among the

several states and tend to lead, and have led, to labor

disputes burdening and obstructing commerce and the

free flow of commerce.

Conclusions of Law

l. International Longshoremen's and Warehousemen's

Union, Local 13, is a labor organization within the

meaning of Section 2(5) of the Act.

2. Pacific Maritime Association and its employer-

members are employers within the meaning of

Section2(2) of the Act, engaged in commerce and in a

business affecting commerce within the meaning of

Section 2(6) and (7) of the Act.

3. By threatening to refuse to dispatch and by

B-20

refusing to dispatch Larry Sullivan for a 10-day period in

April 1976 because he had failed to pay fines and

assessments, Respondent violated Section 8(b)(1)(A) and

(2) of the Act.

4. By threatening to institute discipline and by

instituting discipline against Larry Sullivan for refusing

to voluntarily remove himself from a job because he had

not paid fines and assessments levied against him, at a

time when he had tendered an amount sufficient to

satisfy his statutory obligations, and by threatening to

prevent other members from working if they did not pay

fines and assessments, Respondent violated Section

8(b)(1)(A) of the Act.

5. The aforesaid unfair labor practices affect com-

merce within the meanings of Section 2(6) and (7) of the

Act.

The Remedy

Having found that Respondent engaged in certain

unfair labor practices, I shall recommend that it be

ordered to cease and desist therefrom and that it take

certain affirmative action set forth below to effectuate

the policies of the Act.

As there is no contention that Respondent has

continued to bar Larry Sullivan from dispatch following

completion of the 10-day period in April 1976 when he

was barred from dispatch, I shall recommend that

Respondent be required to make Sullivan whole for any

loss of earnings he may have suffered by reason of the

B-21

unlawful conduct of barring him from use of the dispatch

hall for the 10-day period in April 1976. Backpay is to be

computed on a quarterly basis, making deductions for any

interim earnings, with interest to be paid at the rate of 6

percent per annum. F. W. Woolworth Company, 90 NLRB

289; Isis Plumbing and Heating Co., 138 NLRB 716, enf.

den. on different grounds, 322 F.2d 913 (C.A. 9, 1963).

The General Counsel further requests that Respon-

dent be ordered "to publish and distribute to its member-

ship a notice or bulletin advising its members that the

policy set forth [in its March notice] is no longer in force

and effect." However, no citations have been provided

to support such a remedy and no facts have been adduced

to show that the Board's normal notice-posting require-

ment would not be sufficient notification to Respondent's

members of their rights in this regard. Accordingly, I do

not recommend that such a remedy be granted.

Upon the foregoing findings of fact, conclusions of

law, and upon the entire record, and pursuant to Section

10(¢) of the Act, I hereby issue the following recom-

mended: 5/

5/ In the event no exceptions are filed as provided by

Section 102.46 of the Rules and Regulations of the

National Labor Relations Board, the findings, con-

clusions, and recommended Order herein shall, as

provided in section 102.48 of the Rules and Regula-

tions, be adopted by the Board and become its

findings, conclusions, and Order, and all objections

thereto shall be deemed waived for all purposes.

B-22

ORDER

Respondent, its officers, agents and representatives,

shall:

l, Cease and desist from:

(a) Threatening to refuse to dispatch and refusing

to dispatch Larry Sullivan and other employees because

they fail to pay fines and assessments levied against

them.

(b) Threatening to institute and instituting disci-

plinary action against Larry Sullivan and other employees

for refusing to voluntarily remove themselves from jobs

because they have failed to tender amounts sufficient to

fully pay fines and assessments levied against them.

(c) In any other manner restraining or coercing

employees in the exercise of the rights guaranteed them

by Section 7 of the Act.

2. Take the following affirmative action necessary

to effectuate the policies of the Act:

(a) Make whole Larry Sullivan for any loss of

earnings which he may have sustained by reason of the

discrimination against him in the maner set forth in "The

Remedy" portion of this Decision.

(b) Preserve and upon request make available to

the Board or its agents for examination and copying, all

records necessary or useful to compute the backpay set

forth in "The Remedy" portion of this Decision.

(ec) Withdraw, rescind and give no further effect

to any notice, memorandum, letter or statement which

B-23

can reasonably be construed as a record of the discipline

imposed upon Larry Sullivan in April 1976 when he was

denied dispatch for a 10-day period for reasons other than

his failure to pay dues.

(d) Post at its business offices, meeting halls and

dispatch hall copies of the attached notice marked

"Appendix." 6/ Copies of said notice, on forms provided

by the Regional Director for Region 21, after being duly

signed by Respondent's authorized representative, shall

be posted by Respondent immediately upon receipt

thereof, and be maintained for 60 consecutive days

thereafter, in conspicuous places, including all places

where notices to members are customarily posted.

Reasonable steps shail be taken by Respondent to ensure

that said notices are not altered, defaced or covered by

any other material.

(e) Mail to the Regional Director for Region 21

signed copies of said notices for posting by Pacific

Maritime Association, if willing, in places where notices

to employees are customarily posted. Copies of said

6/ In the event that the Board's Order is enforced by a

Judgment of a United States Court of Appeals, the

words in the notice reading "POSTED BY ORDER

OF THE NATIONAL LABOR RELATIONS BOARD"

shall be changed to read "POSTED PURSUANT TO A

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS ENFORCING AN ORDER OF THE NA-

TIONAL LABOR RELATIONS BOARD."

B-24

notices, to be furnished by the Regional Director for

Region 21, after being duly signed by Respondent's

authorized representative, shall be returned forthwith to

the Regional Director.

(f) Notify the Regional Director for Region 21, in

writing, within 20 days from the date of this Order, what

steps Respondent has taken to comply herewith.

Dated: December 16, 1976

William J. Pannier III

Administrative Law Judge

B-25

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR ) NO. 77-2313

RELATIONS BOARD, ORDER

Petitioner, )

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INTERNATIONAL ) Sm, & tg

LONGSHOREMEN'S ) He . °9

AND WAREHOUSEMEN'S ) obo Se

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Respondent. )

)

Before: SNEED and KENNEDY, Circuit Judges, and

CALLISTER,* District Judge.

The panel as constituted above has voted to deny the

petition for rehearing. Judges Sneed and Kennedy have

voted to reject the suggestion for rehearing en bane ard

Judge Callister has recommended that the suggestion for

rehearing en banc be rejected.

The full court has been advised of the suggestion for

an en bane hearing and no judge of the court has

requested a vote on the suggestion for rehearing en banc.

Hon. Marion J. Callister, United States District Judge

for the District of Idaho, sitting by designation.

Appendix C

Fed, R. App. P. 35(b).

The petition for rehearing is denied and the sugges-

tion for rehearing en banc is rejected.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR

RELATIONS BOARD,

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Petitioner, 4 oy

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INTERNATIONAL My

LONGSHOREMEN'S 40, % %

AND WAREHOUSEMEN'S o.

UNION, LOCAL 13,

Respondent.

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Judgment

Before: SNEED and KENNEDY, Circuit Judges, and

CALLISTER,* District Judge.

THIS CAUSE came to be heard upon an application

of the National Labor Relations Board to enforce its

order dated April 12, 1977, directed against Respondent,

International Longshoremen's and Warehousemen's Union,

Local 13, Long Beach, California, its officers, agents, and

representatives. The Court heard argument of respec-

tive counsel on July 6, 1978, and has considered the briefs

and transcripts of record filed in this cause. On July 21,

Hon. Marion J. Callister, United States District Judge

for the District of Idaho, sitting by designation.

Appendix D

1978, the Court being fully advised in the premises,

handed down its opinion granting enforcement of the

Board's Order. In conformity therewith, it is hereby

ORDERED AND ADJUDGED by the Court that

Respondent, International Longshoremen's and Ware-

housemen's Union, Local 13, its officers, agents, and

representatives shall:

l, Cease and desist from:

(a) Threatening to refuse to dispatch and refusing

to dispatch Larry Sullivan and other employees because

they fail to pay fines and asessments levied against

them.

(b) Threatening to institute and instituting disci-

plinary action against Larry Sullivan and other employees

for refusing to voluntarily remove themselves from jobs

because they have failed to tender amounts sufficient to

fully pay fines and assessments levied against them.

(c) In any other manner restraining or coercing

employ °s in the exercise of the rights guaranteed them

by Section 7 of the National Labor Relations Act, (herein

after called the Act).

2. Take the following affirmative action necessary

to effectuate the policies of the Act:

(a) Make whole Larry Sullivan for any loss of

earnings which he may have sustained by reason of the

discrimination against him in the manner set forth in

"The Remedy" portion of the Administrative Law Judge's

Decision a copy of which is attached hereto as Appendix

A.

(b) Preserve and upon request make available to

the Board or its agents for examination and copying, all

records necessary or useful to compute the backpay set

forth in "The Remedy" portion of Administrative Law

Judge's Decision.

(ec) Withdraw, rescind and give no further effect

to any notice, memorandum, letter or statement which

can reasonably be construed as record of the discipline

imposed upon Larry Sullivan in April 1976 when he was

denied dispatch for a 10-day period for reasons other than

his failure to pay dues.

(d) Post at its business offices, meeting halls and

dispatch hall copies of the attached notice marked

"Appendix B." Copies of said notice, on forms provided

by the Regional Director for Region 21, of the National

Labor Relations Board, (Los Angeles, California), after

being duly signed by Respondent's authorized representa-

tive, shall be posted by Respondent immediately upon

receipt thereof, and be maintained for 60 consecutive

days thereafter, in conspicuous places, including all

places where notices to members are customarily posted.

Reasonable steps shall be taken by Respondent to ensure

that said notices are not altered, defaced or covered by

any other material.

(e) Mail to the aforesaid Regional Director signed

D-3

copies of said notices for posting by Pacific Maritime

Association, if willing, in places where notices to

employees are customarily posted. Copies of said

notices to be furnished by the said Regional Director,

after being duly signed by Respondent's authorized

representative, shall be returned forthwith to the Re-

gional Director.

(f) Notify the said Regional Director in writing,

within 20 days from the date of this Judgment, what

steps Respondent has taken to comply herewith. Costs

of this court in favor of petitioner and against respon-

dent.

Brief of petitioner $118.02

Reproduction of costs 12.00

Total $130.02

Endorsed, Judgment Filed and Entered

/s/

Clerk SO ORDERED:

JUDGES:

/A TRUE COPY,

October 16, 1978

ATTEST: /s/ Deputy JOSEPH T. SNEED

ANTHONY M. KENNEDY

MARION J. CALLISTER

D-4

Appendix A

The Remedy

Having found that Respondent engaged in certain

unfair labor practices, I shall recommend that it be

ordered to cease and desist therefrom and that it take

certain affirmative action set forth below to effectuate

the policies of the Act.

As there is no contention that Respondent has

continued to bar Larry Sullivan from dispatch following

completion of the 10-day period in April 1976 when he

was barred from dispatch, I shall recommend that

Respondent be required to make Sullivan whole for any

loss of earnings he may have suffered by reason of the

unlawful conduct of barring him from use of the dispatch

hall for the 10-day period in April 1976. Backpay is to be

computed on a quarterly basis, making deductions for any

interim earnings, with interest to be paid at the rate of 6

percent per annum. F. W. Woolworth Company, 90 NLRB

289; Isis Plumbing & Heating Co., 138 NLRB 716, enf.

den. on different grounds, 322 F.2d 913 (C.A. 9, 1963).

The General Counsel further requests that Respon-

dent be ordered "to publish and distribute to its member-

ship a notice or bulletin advising its members that the

policy set forth [in its March notice] is no longer in force

and effect." However, no citations have been provided

to support such a remedy and no facts have been adduced

to show that the Board's normal notice-posting require-

ment would not be sufficient notification to Respondent's

D-5

members of their rights in this regard. Accordingly, I do

not recommend that such a remedy be granted.

D-6

Appendix B

NOTICE TO MEMBERS

"POSTED PURSUANT TO A JUDGMENT OF THE

UNITED STATES COURT OF APPEALS ENFORCING

AN ORDER OF THE NATIONAL LABOR RELATIONS

BOARD."

AN AGENCY OF THE UNITED STATES GOVERNMENT

WE WILL NOT refuse to dispatch Larry Sullivan nor any

other employee because he has failed to tender an

amount sufficient to satisfy fines and assessments which

we have levied against him.

WE WILL NOT threaten to refuse to dispatch nor

threaten to prevent from working Larry Sullivan or any

other employee as a means of compelling payment of

fines and assessments and WE WILL NOT apply that

portion of our March 1976 notice which states that

employees who fail to pay fines and assessments will not

be permitted to work.

WE WILL NOT threaten to nor institute discipline against

any employee for refusing to leave a job for failing to

pay fines and assessments.

WE WILL NOT in any manner restrain or coerce you in

the exercise of the rights guaranteed by Section 7 of the

National Labor Relations Act.

WE WILL make whole Larry Sullivan for any loss of pay

he may have suffered by reason of the discrimination

practiced against him.

D-7

INTERNATIONAL LONGSHOREMEN'S AND

WAREHOUSEMEN'S UNION, LOCAL 13

(Labor Organization)

Dated By

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE

DEFACED BY ANYONE

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any

questions concerning this notice or compliance with its

provisions may be directed to the Board's Office.

Eastern Columbia Bldg.

849 South Broadway

Los Angeles, CA 90014

Telephone No. (213) 688-5229