Hellenic Lines, Ltd.

HELLENIC LINES LIMITED I Hellenic Lines Limited and Amilcar Molina Local 1277-1, International Longshoremen's Associa- tion, AFL-CIO and Amilcar Molina . Cases 29-CA -4724 and 29-CB-2325 February 4, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER 8(b)(1)(A) and 8(b)(2) of the Act. The answer of both Respondents, while admitting the jurisdictional allegations of the complaint, denies the commission of any unfair labor practices. At the hearing, the parties were given full opportunity to be heard, to present evidence, and to make oral argument. Thereafter, both Respondents duly filed briefs. Upon consideration of the entire record herein, and due consideration having been given to the contentions and arguments of the parties made in oral argument and contained in their briefs, and upon my observation of each witness who appeared before me, I make the following: On October 29, 1976, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, Respondent Union filed a brief in support of the Administrative Law Judge's Decision, and Respondent Employer filed a brief in response to the General Counsel's exceptions. 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 panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This case was heard at Brooklyn, New York, upon a consolidat- ed complaint issued by the Regional Director for Region 29 on February 27, 1976, which complaint was based upon a charge filed by Amilcar Molina, an individual, on Novem- ber 19, 1975, in Case 29-CA-4724, and a first amended charge in that case dated December 15, 1975, and a charge filed by Molina in Case 29-CB-2325 on November 19, 1975. The consolidated complaint alleges, in substance, that Respondent Local 1277-1, International Longshoremen's Association, AFL-CIO, herein called the Union, caused Respondent Hellenic Lines Limited, herein called Hellenic, to discharge two employees of Hellenic because the employees were not members of Respondent Union and that, thereby, Hellenic committed violations of Section 8(a)(3) and (1) of the Act and the Union violated Section 228 NLRB No. I FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT EMPLOYER Respondent Hellenic, a Greek corporation licensed to do business in the State of New York, is engaged in the shipping of freight to and among the various States of the United States and in foreign commerce. During the year immediately preceding the issuance of the complaint herein, a representative period, Hellenic, in the course and conduct of its business, performed services of a value in excess of $1 million for various enterprises located in States other than the State of New York and for firms located in foreign countries and engaged in foreign commerce. It is admitted, and I fmd, that Hellenic is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Hellenic is a member of the New York Shipping Association, hereinafter referred to as the Association. The Union is a Local of International Longshoremen's Associa- tion, AFL-CIO, hereinafter referred to as ILA. ILA and the Association have maintained at all times material hereto a master collective-bargaining agreement, the pertinent ap- plicable sections of which are summarized below. The relationship between Hellenic, as a member of the Associa- tion, and the Union, as a local subdivision of ILA, is governed by, and subject to the terms of, the aforesaid collective-bargaining agreement. Additionally, the hiring practices provided for in the said agreement are also subordinate to the rules and regulations of the New York Harbor Waterfront Commission, herein called the Commission, an agency formed by compact between the States of New York and New Jersey, with the approval of the United States Congress, to regulate the New York Harbor waterfront shipping industry. The Commis- sion licenses hiring agents, pier guards, and superinten- dents, registers checkers and longshoremen, the latter classification including miscellaneous dock workers such as mechanics, caulkers, and carpenters. No one is permitted, 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by law, to work on any pier in New York Harbor unless the individual has obtained the approval of the Commission and is registered by the Commission and hired through one of the Commission's hiring centers. Evidently, one such approved center for the hiring of mechanics and other miscellaneous dock workers is the hiring hall maintained by Respondent Union. The collective-bargaining agreement between the Associ- ation and ILA, which contains the hiring practices to which both Hellenic and the Union are legally bound, provides for a 30-day union-security clause, and concededly lawful hiring hall provisions which obligate Hellenic to call upon the Union, exclusively, to dispatch, among other skilled workers, loading equipment maintenance mechanics, who in turn, under the law, must be registered with the Waterfront Commission if they are to be assigned to work on Hellenic's pier on the Brooklyn, New York, waterfront, part of New York Harbor. The principal feature of the hiring procedures provides that, when hiring, the employer is required to notify the Union by telephone and indicate the number of men and qualifications required. The Union then will refer men on the basis of the qualifications which the men possess, and their seniority, from those listed at the Union's hiring hall. It should be noted in connection therewith, that the Port of New York is divided into two sections and that the employees represented by Respondent Union herein are employees for section "B" of the Port which includes Brooklyn and Staten Island. The employees of other sections of the Port who are in the miscellaneous employ- ees' category, as noted above, are represented by another local of ILA. The hiring procedures set forth above are further compli- cated by two factors: (1) the closing of registration since 1966 by the Waterfront Commission, except for a short period in 1969, because of the scarcity of available jobs on the New York waterfront, and (2) by a provision in the supplemental or amended agreements between the mem- bers of the Association and the ILA which guarantees an annual income of all registered members of ILA locals. The funds for the payment of this "guaranteed annual income," known as GAI, are contributed by Hellenic and all other members of the Association. The procedures utilized for the GAI are rather complicated, but, in short, provide that each member of the ILA who is not working because of lack of work shall report to his respective hiring hall on each working day, and, if such an employee fails to do so, he will have that day's guaranteed wage deducted from the GAI on a complicated basis. As an instance, the employee who fails to report for no reason at all will receive more deductions from his GAI than the employee who fails to report because of an illness or other valid reason. Employees in the classifications known as "miscellane- ous," who are members of Respondent Union herein, must report in much the same manner to the Union's hiring hall in order to collect their guaranteed annual income. Under these procedures, it is advantageous to any employer- I A union member on GAI can collect as much as $16,000 per year if not employed for that long by an Association member 2 Although Molina testified on direct examination that he also spoke about union membership to Hellemc's pier superintendent, a Mr Gram, member of the Association, such as Hellenic, normally to seek its employees from the Union's hiring hall, not only because of the legal obligation to do so as provided in the Association's contract with ILA, but also because the more employees hired directly from the hall who are on GAI the less the contributions that the employer-members of the Association would be required to pay into the GAI fund.' It is in the context of the foregoing provisions of the master agreement and subsidiary and supplemental agree- ments between the Association and the ILA and the rules and regulations for hiring procedures as supervised by the Waterfront Commission that the events of the instant case occurred. B. The Events Before sometime in March 1975, Amilcar Mohna and Matthew Rodgers, mechanics on material-handling equip- ment, worked for a firm named Eagle Material Handling Company, which supplied material-handling equipment to the Hellenic's pier on 57th Street in Brooklyn, New York. About the middle of March 1975, Donald Clark, who had observed Molina and Rodgers performing warranty work on the equipment at the Hellenic Pier, informed Molina and Rodgers that Hellenic was thinking of discontinuing business with Eagle and would like to give Molina and Rodgers the opportunity to work for Hellenic. Although the pay scale offered by Clark was somewhat less than the hourly rate that Molina and Rodgers were receiving at Eagle, there were opportunities to make more money because Clark informed the two there would be an opportunity to become union members after 6 months' employment with Hellenic, together with the benefits that would ensue from such membership. Accordingly, Molina and Rodgers accepted, both at the same time, and began working for Hellenic approximately a week later. Neither Rodgers nor Mohna was a union member at the time, nor were they possessors of Commission passes inasmuch as they had never been registered for work at the New York Harbor waterfront. In accordance with the promise made to Molina and Rodgers, several times during his employ- ment with Hellenic, Molina requested of Clark when Molina was going to be able to join the Union. Clark told Molina that the latter would just have to wait.2 However, Molina, himself, never went to the union hall to apply for union membership. Nor does the record reveal that Rodgers ever did so. Neither did any union official approach Molina with regard to the latter's lack of union membership until November 7, 1975, when Union Presi- dent Joseph Colozza accosted Molina. On November 6, Stephen Giardino, mechanic foreman at Hellenic's 57th Street, Brooklyn pier, met Joseph Colozza at Colozza's office in the union hall. During their conversa- tion, Giardino mentioned to Colozza that Hellenic had two mechanics employed on the pier performing maintenance work on the material-handling equipment. This informa- tion came as a surprise to Colozza inasmuch as, under the contract between the Association and the ILA, Hellenic during cross-examination Molina testified to the opposite and, accordingly, I do not find that at any time he spoke to Giam with regard to joining the Union. HELLENIC LINES LIMITED 3 was obligated to call the Union for mechanics when needed. At that time, there were a number of mechanics qualified to perform the work being performed by Molina and Rodgers who were on GAI and who were reporting daily to the union hall for employment. By reason of this information, the next morning, on his way to his office, Colozza stopped at the Hellenic pier and, although he had never met either Molina or Rodgers, approached them at their work. Molina was working on a piece of equipment in the garage on the pier as were Rodgers and Giardino. Colozza introduced himself to Molina and identified himself as president of the Union. He requested Molina to come off the machine on which he was working. Molina thereupon informed Colozza that Molina was a mechanic. Colozza then told Molina that Molina could not work on the pier because he was not a member of the Union. Colozza also told Molina that he was going to the pier office and ask Hellenic's pier management to replace Molina with a union mechanic. At that point, Molina asked if there was anything he could do, and Colozza told him "not really." It was either before he proceeded to the office or after he left the office that Colozza told Molina and Rodgers that the pier was a union shop, that Molina and Rodgers had no business being there, and that Molina and Rodgers were going to have to leave. In any event, when Colozza went to the pier office, he spoke to Superintendent Giani and asked the latter where the two mechanics, referring to Rodgers and Molina, had come from. Giani answered that they were hired to do warranty work. Colozza thereupon stated that the warranty work on that machinery had long since been finished and asked Giani why the latter had not called him for two mechanics. Giani just shrugged. There was some further conversation and mention by Giant that Molina's wife was pregnant. Giani asked if Colozza could delay having Hellenic fire Molina for that reason. To this request, Colozza answered that the Union did not want to hurt anyone; that all the Union wanted to do was bring a mechanic in from the hall to replace Molina and that a week's delay would be all right with Colozza. Thereafter, Colozza went downstairs and approached Molina and Rodgers and explained that the Union was not asking Molina to be terminated that day, but that he was to have another week's extension inasmuch as Colozza under- stood that Molina's wife was pregnant. When Molina answered to the effect that nothing ever went right for him, Colozza told Molina that there were men at the hiring hall also looking for a break. Molina then asked if he could join the Union. Colozza answered that it would be senseless for him to do so 3 All of the foregoing is from various credited portions of the testimony of Molina and Colozza . Although, in testifying, Colozza denied that he told Molina in so many words that Molina could not work there any longer because he did not belong to the Union, I find and conclude that, at least, in effect, Colozza did state this to Molina and Rodgers However, I believe further that Colozza did explain to Molina why, as a nonunion employee of Hellenic, Mohna could not work at Hellenic's pier. I conclude that both Molina and Colozza testified to the best of their recollection and without attempt to mislead . However, as hereinafter discussed, although I find that Colozza did tell Mohna that the pier was a union shop and that Molina had no business being there and was going to have to leave , Colozza did, in effect, use the terms in a context which was not unlawful because there was no way that Molina could join the Union and still retain his present job inasmuch as the seniority provisions of the collective-bargaining agreement would put other employees who would be ahead of Molina on the job at Hellenic's pier. Molina then asked if there was something else he could do. Colozza asked Molina what his skills were and whether Molina welded or burned. Molina answered that he was a good mechanic. With that, Colozza gave Molina his card and told the latter that Molina should call Colozza and perhaps Colozza could find something for Molina to do.3 After Molina's second conversation with Colozza on November 7, Molina was permitted to work for the balance of the week and presumably the following week, after which he left the Respondent's employ. However, before leaving, Supervisor Mechanic Clark obtained for Molina a position with another material-handling machinery company for which Molina had worked before going to work for the Eagle Material Handling Company. However, this job lasted only a short period of time for reasons which are not here relevant in view of the decision in this case. Thereafter, after leaving the position obtained for him by Clark, Mohna called the union hall on several occasions in order to reach Colozza, but was informed that Colozza was not available.4 During the week after Molina was approached by Colozza on the pier, he was told by Clark that on the following Monday morning he could speak to Aristotle Voulgaris, operations manager for Hellenic, who had his office in New York but would be at the pier on the following Monday morning. According to Molina, al- though Voulgaris was on the pier that morning he never spoke to Molina. Nevertheless, after leaving the Respon- dent's employ, Molina did visit Voulgaris' office in Man- hattan. The two had a conversation in which Voulgaris told Molina that Molina could not work for the Respondent any longer because Molina was not a union member and Hellenic's pier was a union pier.5 I find that Molina was told by Voulgaris that the Union did not want Molina and there was absolutely nothing the Company could do for the latter. C. Conclusions Counsel for the General Counsel contends that when Colozza informed Molina that the latter could no longer work for Hellenic because Molina was not a member of the Union, and when Voulgaris told Molina much the same thing, perhaps in slightly different words, they meant exactly what they said, namely, that a violation was spelled out by the words used and that their intention was strictly 4 Although Colozza testified that Molina never called him, it is very possible that Colozza never received any message that Molina had tried to reach him. 5 Although Voulgaris testified that he never told Molina that the latter could not work for Hellenic because Molina was not a member of the Union, it is apparent that Voulgans' testimony in this respect is not credible. The investigatory affidavit which Voulgans signed for the General Counsel's representative was to the contrary . Additionally, I do not credit Voulgans because upon my observation of him I conclude that by his manner on the witness stand and by his efforts to refuse to directly answer questions put to him he proved himself to be a less than reliable witness. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to prevent further employment of Molina for his failure to become a member of the Union, despite the fact that he had not been given an opportunity tojoin the same, presumably because no demand had ever been made upon him tojoin the Union by any representative of the Respondent Union. Furthermore, when Colozza spoke to Molina on November 7, Colozza told Molina that it would be fruitless for Molina to join the Union and that he, Colozza, could do nothing for him with regard thereto. Counsel for General Counsel cited a number of cases in which the Board held that in like situations violations had been spelled out where a union has caused the discharge of an employee by reason of the employee's failure to loin the union without the union giving such employee an opportunity to join the union.6 Respondent Union, on the other hand, maintains, aside from its argument that Molina should be completely discredited with regard to what he was told by Colozza on November 7, even assuming that Colozza used the words attributed to him by Molina in the latter's testimony, the import of those words should be assessed in the context of the entire situation in the Port of New York and not judged in a strictly technical sense as the General Counsel would have it. In the context alluded to by Respondent Union, the words meant no more than what Colozza intended them to mean, namely, that the Union had the right to request the discharge of Molina and Rodgers by reason of the authority and exclusive right given the Union by the master agree- ment between the ILA and the Association, and by reason of that right, Molina not having been dispatched to Hellenic through the hiring hall procedures which are admittedly lawful, any discharge resulting from the words used by Colozza as attributed to him by Molina meant just that and no more. Therefore, the action taken by Colozza on behalf of the Union was not violative of the Act. Respondent cites numerous cases, unnecessary to be repeated here, where the Board has consistently held that it is not a violation of the Act for a union, with a valid hiring hall referral system, to require an employer to discharge an employee hired without referral pursuant to such hiring hall agreement. Respondent Hellenic, while advancing somewhat the same argument, additionally contends that there is no evidence in the record that Molina, or Rodgers, were ever discharged by Respondent and that the only testimony in the record, insofar as it applies to Respondent with regard to Molina's leaving the employ of Respondent, is the conversation between Molina and Clark in which Clark told Molina that he would get Molina another job upon the latter's request. However, I do not find this portion of Respondent Hellenic's contention to be meritorious in view of the conversation at Voulgaris' office between the latter and Molina. In this conversation, Voulgaris informed Molina that the Union would not permit Molina to work for Hellenic because Molina was not a member of the Union and that, therefore, Respondent could do nothing about the matter. While this might not have been a direct discharge insofar as the words spoken were concerned, it demonstrated an acquiescence in the Union's demand that Respondent discontinue Molina's employment. Nevertheless, I find merit in the contention of Respon- dents that the words used by Colozza and Voulgaris in mforming Molina that the latter could not work for Hellenic because he was not a member of the Union should not be applied mechanically in the context in which the conversations arose. Admittedly, Molina and Rodgers were hired by Hellenic in contravention of the lawful union hiring hall referral system set forth in the master agreement between the Association and ILA to which both the Union and Hellenic are parties. Hellenic being bound by the said agreement violated the same when it hired Molina and Rodgers. In addition, the record is devoid of any evidence to the effect that the Union had any knowledge that Molina and Rodgers were working on Hellenic's pier until the day before Colozza spoke to Molina. Thus, the Union through its authorized agent could not and did not act upon the matter until it acquired knowledge of the same. Additional- ly, neither Molina nor Rodgers was lawfully on the pier inasmuch as they were not registered with the Commission and had no legal standing to work as mechanics on any pier on the New York Harbor waterfront. When Rodgers and Molina were hired, Respondent Hellenic's supervisors were well aware of this fact and, as the record shows, Molina and Rodgers were hired because they were working, although they had no knowledge of it, for less than union scale, and it is obvious that Hellenic's hiring of Rodgers and Molina was not only because of their skills, but because of the fact that Hellenic could have the use of two qualified mechanics without paying the wage scale required by the agreement between ILA and the Association. Superimposed upon all the foregoing is the fact that there were a number of individuals who had both union membership, seniority, and commission registration collecting GAI and seeking em- ployment through the union hall at the time Molina and Rodgers were hired and during the entire 8 months of their employment with Hellenic. With regard to the mechanics collecting GAI, General Counsel sought to introduce into the record, to support his position, testimony of a representative of the Commission, Jesse Langston, the Commission's director of employment centers. Langston testified that there were times when the provisions for opening up commission registration on special request of employers had to be utilized during the time that mechanics were collecting GAI because the Union failed to supply such mechanics to employers. However, I find that Langston's testimony, although completely credited with regard to the facts to which he testified, referred to events which were too remote from the occurrences on Respondent Hellenic's pier to have been supportive of the General Counsel's contention.? I, there- fore, do not consider Langston's testimony to be of sufficient weight to overcome the other factors presented by the situation in the instant proceeding. In addition to all of the foregoing, I note two additional matters which I conclude support the contentions of 6 Counsel for General Counsel cites Amalgamated Meat Cutters and a! Association of Heat and Frost Insulators & Asbestos Workers, Local No 40, Butcher Workmen of North America, Local No 576 (Westfield Thrftway AFL-CIO (Robert A Keasfey Co), 184 NLRB 708 (1970), and Encinal Supermarket), 201 NLRB 922, 928 (1973); Local Union No 58ofthe United Terminals, 193 NLRB 362(1971) Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting 7 It is for this reason that Langston 's testimony is not set forth in the industry, AFL-CIO (Heyse Sheet Metal), 187 NLRB 152 ( 1970), Internation- factual recitation above HELLENIC LINES LIMITED 5 Respondents. Colozza, when informed of the fact that Molina's wife was pregnant, readily consented to permit Molina to work an extra week on the Hellenic pier in order to give Molina some time to perhaps seek other employ- ment and to soften the blow of Molina's leaving Hellenic's employ. Additionally, Colozza told Molina to keep in touch; that Colozza would attempt to find other work for Molina. Additionally, there is the factor that the day after Molina left Respondent's employ, the Union furnished to Hellenic through the hiring hall seniority system a mechanic who had been on GAI and who has been working for Hellenic from that date until the date of the hearing herein. This last fact would seem to vitiate any contention by the General Counsel that, in fact, the Union was not interested in supplying mechanics from the hiring hall, but merely interested in just having Molina discharged because the latter was not a union member. Finally, I find from the recited facts that it would have been a useless gesture for Colozza to have offered union membership to Molina and Rodgers in view of the fact that mechanics qualified to perform mechanical work required by Hellenic, and who had seniority, were so numerous that Molina and Rodgers could not possibly have been assigned to work at the job on Hellenic's pier even if they had become union members and had obtained harbor passes from the Commission. Accordingly, by reason of all the foregoing, I conclude that the General Counsel has failed to prove by a prepon- derance of the credible evidence the allegations set forth in 8 In the event no exceptions are filed as provided by Sec. 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 the complaint. I find that the words used by Colozza and Voulgaris, in the context above recited, can be interpreted only in that context, and that Colozza was merely asserting the Union's lawful right to have Molina and Rodgers discharged because they were not dispatched to Hellenic through the lawful hiring procedures. I shall therefore recommend that the complaint herein be dismissed in its entirety. CONCLUSIONS OF LAW 1. Respondent Hellenic is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. By demanding the discharge of Molina and Rodgers, the Union has not violated Section 8 (b)(1)(A) and (2) of the Act. 4. By discharging Molina and Rodgers , or at least consenting to the Union's demands, Respondent Hellenic has not violated Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER8 It is ordered that the complaint herein be, and the same hereby is, dismissed in its entirety. of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes