Before BIGGS, Chief Judge, MARIS and MCLAUGHLIN, Circuit Judges.
MCLAUGHLIN, C.J.: The National Labor Relations Board having found Imparato Stevedoring Corporation, the respondent-employer, guilty of unfair labor practices in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, 49 Stat. 452 (1935), as amended, 29 U.S.C. Section 158(a) (1952), petitions us for a decree enforcing its order against that concern.
Respondent handled stevedore operations under contract with the United States Government at the Bayonne, New Jersey, Naval Base from July, 1952 until July, 1955 and has been working the Leonardo, New Jersey, naval ammunition depot from August, 1953. Its employees at those places worked in gangs of 21 men including a person in charge, called the hatch boss. Respondent-employer obtained its Leonardo gangs from four locals of the International Longshoremen's Association, the representative union. Local 1588 supplied the first three gangs, Local 1247, the next two and two other locals one each. The Leonardo work when available was preferable as it consisted of handling ammunition and was paid for in double rates. Local 1588, the Bayonne local, supplied the gangs for the Bayonne operation. The ordinary procedure for obtaining men for a particular assignment would be for respondent to advise the union delegate of the number of gangs required. The delegate was supposed to select the gangs for the work by following a rotation system and notifying the selected gang. Each gang was known by the name of its hatch boss.
The controversy here has its source in the refusal of the Mazzucola (later the Wolkowski) gang to pay certain "assessments" or "kickbacks" to Local 1588. This practice, as far as the record reveals, started in 1950, prior to the time respondent obtained the stevedoring contract at Leonardo but apparently during a period when Local 1588 was supplying the labor force to the concern which was doing the work. Each man in the Mazzucola gang was told by the hatch boss, Anthony Mazzucola, he would have to pay three dollars while working there. The money was to go to the union delegate Linquist "because Linquist wasn't making much of a money on salary." Cafasso, one of the gang, protested and Mazzucola told him he would have to "pay up" or "get out." The collections and payments to Linquist continued until December, 1952. At that time the New York Crime Commission was investigating the metropolitan waterfront and Linquist refused to take any payments because "things are getting too hot." At a meeting during this period the members of Local 1588 signed a paper reading:
"We the undersigned longshoremen members of I.L.A. Local No. 1588 of Bayonne, New Jersey have decided of our free will, to chip in a few dollars (When they clear - $150.00 salary only) per week of our pay for work at the Naval Ammunition Depot at Leonardo, N.J. to give to our Business Agent L. Leroy Linquist as a personal gift for his own use to use any way he sees fit, because we feel that he is unable to receive enough compensation for the services he is rendering us because of the fact that our local is a small one."
There had been no discussion of payments to Linquist at a meeting prior to this and the announced reason of the above quoted document was to make past collections "look legal." The paper itself, in line with that thought, was dated back to March, 1950. Sometime after the Crime Commission hearings had ended in March, 1953, at a meeting called by Linquist, one Wriole, respondent's hiring boss at Leonardo who was a member of 1588, proposed that each man working at Leonardo give Linquist two dollars a week and those at Bayonne, one dollar. Members of the Mazzucola gang objected unless proper measures were taken to safeguard and accident for the money. The suggestions were refused and the assessment voted. Thereafter the weekly payments were collected and turned over to one of a group selected by the membership to act as trustee of the fund. At a later 1953 union meeting when the fund had reached $3,200, a member proposed that the sum be turned over to Linquist and that course was approved by majority vote.
Thereafter, the Mazzucola gang refused to pay the assessment. Within two or three weeks of the meeting, Linquist said to Charles Mazzucola, "it looks like the Mazzucola doesn't want to pay no more" and that "I am going to get out to starve the Mazzucolas." Around December 2nd, 1953, the Mazzucola gang had orders to report for work at Leonardo. Respondent's hiring boss Wriole called out the gang under the name of a new hatch boss, Lou Miele. The gang would not answer the call. Wriole told them Anthony Mazzucola had been replaced because he "was too easy with the men." There was a conference subsequently with the I.L.A. international president, arranged by certain of the members of the Mazzucola gang and attended by them and Linquist. No one represented the respondent at this conference though the dispute was settled by a decree that Anthony Mazzucola should continue as hatch boss and the assessments should cease. In April, 1954, there was a new election of officers for 1588. The Mazzucolas lost and a new delegate, Delap, was named, instead of Linquist who did not run.
In May, 1954, Delap told Anthony Mazzucola he had decided, with the other hatch bosses agreeing, "to charge" the men the old two dollar rate for Leonardo work and one dollar for Bayonne. Anthony replied such action should be passed upon at a meeting of the local. Shortly afterwards he advised Delap that 90% of the gang would not pay. The delegate indicated his dissatisfaction with the gang. Later he told a prominent Mazzucola member, Thomas Cafasso, "We will have to start assessing the fellows again" to purchase union quarters. Cafasso answered that for him to pay, Delap would have to show he needed the money for the benefit of the local and its members. Delap said "who doesn't pay will be left out * * * of work." About the same time Cafasso protested to Delap and the local president about discrimination against some hatch bosses on work assignments. Delap told Cafasso he should "get out of the local." Both Delap and the president mentioned that Cafasso did not want "to pay $2." The payments were resumed by all the gangs except Mazzucola. There was never an authorization of the payments by a meeting of the local.
In June ,1954, following Anthony Mazzucola's notification to Delap that his people would not pay the assessment, a notice was posted on the local's board assigning the Mazzucola gang to work in Bayonne that Monday and replacing Anthony with Pete Suprinski as hatch boss. Respondent's Superintendent Mattera testified that he believed John Imparato, respondent's secretary and treasurer, had discussed this with the union delegate and "surmised" that Suprinski "must have been agreeable" to the delegate, otherwise, Suprinski would not have been made hatch boss. The Mazzucola gang refused to go to the Bayonne work because they considered Suprinski incompetent. Cafasso on the stand said:
"We know Pete Suprinski was in with the delegate [Delap] that had collected and wanted to collect the $2. And we would be forced to pay or they would leave us out one at a time and we couldn't do nothing about it. As body we could fight together * * * for our rights. As an individual we could not do it, which we found along the waterfront."
Because of this trouble Charles and Anthony Mazzucola had a talk with respondent's John Imparato. The Trial Examiner believed the Mazzucolas' report of the conversation. Charles testified that when he asked Imparato what he had against Anthony, the former said:
"'I don't have nothing against him.' He says, he has no choice, his back is against the wall. And I don't know what he meant by that. I said, 'You don't want my brother? How about me, I am capable of taking the gang. As a rule the gangway man takes over.' He said, 'No, your name is Mazzucola, I can't take you either.'
"Q. Did he say why? A. No, he didn't tell me why. Q. What else did he say? A. He said if he had ten men working on his best gang and they didn't pay he'd get rid of them, and that is just what happened to us.
"Q. Did, he say anything about the Mazzucola's starving, or anything like that? A. He said yes, they were out to starve the Mazzucolas. He wouldn't tell us who. I ...