Howland Hook Marine Terminal Corporation

HOWLAND HOOK MARINE TERMINAL CORP. Howland Hook Marine Terminal Corporation and Ronald Bel and New York Shipping Associ- ation, and International Longshoremen's Associ- ation, AFL-CIO, Parties to the Contract. Case 29-CA-7178-2 August 17, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On January 29, 1982, Administrative Law Judge Robert T. Snyder issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. We disagree with the Administrative Law Judge's conclusion that the Respondent violated Section 8(a)(5) or (3) by refusing to recognize em- ployee Ronald Bel as interim steward, or violated Section 8(a)(2) when, instead, the Respondent rec- ognized Patsi DeRenzi. The Respondent, a member of the New York Shipping Association (NYSA), is engaged in the business of performing stevedoring and marine ter- minal functions at Staten Island, New York, and operates one of the largest marine container facili- ties in the Port of New York. The Respondent's longshore employees are represented by the Inter- national Longshoremen's Association (ILA) and its affiliated Locals and are covered by a collective- bargaining agreement negotiated between the ILA and the NYSA. The Respondent's longshore employees are members of ILA Local 920. As the record reveals, there existed at all material times a serious "politi- cal" dispute within Local 920 which was centered in the opposition of various members of the Local's executive committee to the presidency of Frank DeMayo. DeMayo had been elected president of the Local in 1976 as an insurgent candidate op- posed to the policies of the Local's incumbent president and executive board, many of whom held foremen's positions with the Respondent. DeMayo and his supporters believed that the Local's offi- cials, as foremen, were controlled by the Respond- ent and acted as a rubber stamp for its policies to 263 NLRB No. 40 the detriment of the enforcement of the collective- bargaining agreement. For the purposes of this case, the political opposition to DeMayo manifest- ed itself in a reoccurring dispute over the power of DeMayo to appoint an interim steward to act during the absences of Anthony Motola, the regu- lar, elected steward and a political opponent of DeMayo. While DeMayo contended that the power to appoint an interim steward was vested in the power of his office as president pursuant to the Local's bylaws, his selection of various interim stewards was, at certain times, opposed not only by Motola, but by various of his opponents on the ex- ecutive committee, including Patsi DeRenzi, vice president, and Harold DeFazio, secretary-treasur- er-business agent.' Thus, on May 5, 1978, a spe- cial meeting of the Local's executive committee was held to resolve problems between DeMayo and Motola regarding DeMayo's attempts to ap- point interim stewards. At this meeting, an intraun- ion agreement was reached providing that Motola would notify DeMayo of upcoming absences and that DeMayo would have the authority to appoint the interim steward from a list of senior longshore- men. Despite this agreement, a dispute arose in late September 1978 when, contrary to DeMayo's se- lection of Michael Picozzi, the Respondent recog- nized Patsi DeRenzi as interim steward. 2 DeMayo filed a grievance over the Respondent's failure to recognize Picozzi and, on October 1978, a griev- ance meeting was held, attended by DeMayo, Motola, and representatives of the Respondent as well as the NYSA. At the meeting, DeMayo con- tended that the executive committee had empow- ered him to appoint the interim steward. Converse- ly, Motola objected to DeMayo's appointment of Picozzi and presented a petition signed by over 100 of the Local's members requesting that the Re- spondent continue to recognize DeRenzi as interim steward. The meeting ended with an agreement that, in the future, an election would be held to choose an interim steward. The dispute over the interim steward again arose in May 1979 and gave rise to this proceeding. I After his election, DeMayo succeeded in obtaining passage of the Local's first set of bylaws which, inter alia, changes the Local's practice to require that stewards be elected rather than appointed by the Local president. Motola, who had served as steward for a number of years prior to DeMayo's election and passage of the bylaws, was elected ste- ward on May 9, 1977, for a term of 3 years. As steward, Motola had always appointed the interim steward and claimed the authority to do so. I During Motola's two previous absences, DeMayo, at the urging of DeFazio, agreed to appoint DeRenzi. the choice of Motola, as interim steward. DeMayo testified that he did so to "keep the peace." Regarding the Respondent's refusal to recognize Picozzi in September, Michael Gallo, the Respondent's operations manager, testified that DeFazio threatened the Respondent with a work stoppage if it recognized Picozzi, claiming that DeMayo did not have the authority to appoint the interim steward. 453 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having been informed that Motola was to take a 2- week vacation, DeMayo suggested to Ragucci, the Respondent's president, that an election be held to choose the interim steward and to settle the matter once and for all. Ragucci agreed and DeMayo ar- ranged for a secret-ballot election which was held among the Respondent's dock employees on May 8. Employee Ronald Bel won the election and Ra- gucci told DeMayo that Bel would be hired3 as steward the following day. However, shortly there- after, Defazio and DeRenzi visited Ragucci and presented a petition signed by 12 of the Local's ex- ecutive board members which alleged that De- Mayo's conduct of the election for interim steward violated the Local's bylaws. When Ragucci stated that he had agreed to recognize Bel, the officers re- plied that they expected Ragucci to follow the wishes of the executive board and recognize De- Renzi, Motola's designate, as steward. The officers also threatened a work stoppage if the Respondent recognized Bel. The following day, the Respondent recognized DeRenzi rather than Bel and has con- tinued to recognize DeRenzi as interim steward. 4 The Administrative Law Judge found that the Respondent's refusal to recognize Bel violated its obligation to bargain with Local 920 under Section 8(a)(5) and discriminated against Bel in violation of Section 8(a)(3). He also found that the Respond- ent's recognition of DeRenzi, an alleged supervisor, as interim steward violated Section 8(a)(2). Section 8(a)(5) requires an employer to recognize the agents of its employees' collective-bargaining representative. The designation of such agents is purely an internal union affair. However, this is not a case where the Respondent refused to recognize Local 920's designated agent. Rather, it is one where, as a result of an internal union dispute unre- lated to the Respondent's bargaining obligations, the Respondent was faced with competing claims from two factions within the Local's governing body as to who should act as that agent. Those claims presented the Respondent with the choice of having to refuse to recognize any interim steward, a course hardly consistent with its obligations to bargain with Local 920, or recognizing the choice of one faction over that of the other. The dilemma was the result of an internal union dispute concern- ing who had authority to conduct the business of 3The record reveals that the steward was the first man hired on the dock and performed no duties other than that of steward. Thus, if not hired as steward, Bel would have been hired only if his gang were other- wise scheduled to work. The legality of this practice regarding the hiring and duties of stewards was not placed in issue in this case and we do not pass on it. 4 The record reveals that, following DeRenzi's and DeFazio's visit, Ragucci consulted with ILA Vice President Anthony Anastasio. Anasta- sio told Ragucci to follow whatever the Local practice was regarding recognition of interim stewards. the Local; hence we cannot agree with the Admin- istrative Law Judge that Section 8(a)(5) is applica- ble. Initially, we note that there is no evidence that the Respondent seized upon the dispute within the Local as a means of avoiding its bargaining obliga- tions. Rather, it is clear from the record that the Respondent was, at all times, willing to recognize an interim steward. And, the fact that it did is, at least, consistent with its obligation to bargain with the Local. We also note that, in supporting con- flicting candidates for recognition, DeMayo, DeFa- zio, and DeRenzi, as officers of the Local and ex- ecutive board members, each acted with apparent authority to speak on behalf of the Local.5 In this regard, we find it irrelevant whether the opposition of the executive board members to the recognition of Bel was justified under the Local's bylaws or in pursuit of a legitimate union objective. For, to find otherwise would be to require the Respondent to go behind the conflicting representations and claims of authority and to evaluate those claims in terms of the Local's bylaws. Section 8(a)(5) did not obligate the Respondent, in such circumstances, to interpret the Local's bylaws or to evaluate the mo- tives behind the conflicting demands made. Rather, the resolution of the dispute herein is left to the in- ternal procedures of the ILA. 6 We likewise disagree with the Administrative Law Judge's finding that the Respondent's failure to recognize Bel as interim steward violated Sec- tion 8(a)(3). In so concluding, we are not unmind- ful of the Administrative Law Judge's findings as to the Respondent's motives for recognizing De- Renzi over Bel. In another context, those motives would render an employment decision unlawful. Here, however, the sole discrimination against Bel was the failure to recognize and hire him as ste- ward, an issue inseparable from the dispute over which of the employees urged should be designat- ed. As the dispute was purely an internal union affair, its resolution rested with the ILA. Finally, we cannot agree that the Respondent's recognition of DeRenzi violated Section 8(a)(2). For, contrary to the Administrative Law Judge, the record does not establish that DeRenzi's duties as tractor foreman constitute him a statutory super- visor. As tractor foreman, DeRenzi reports directly to the head foreman who provides him daily with a 5 The Local's bylaws do not address the appointment or selection of interim stewards. While the bylaws do place much authority in the office of president to act on behalf of the Local, they also state that the execu- tive board is the "highest governing authority" within the Local between membership meetings. Thus, in asserting the authority to select the inter- im steward, the executive board members were raising, at least, a colora- ble claim. 6 Accord: J. H. Hamlen & Son, Inc., 180 NLRB 902, 903 (1970). 454 HOWLAND HOOK MARINE TERMINAL CORP. list of the activities to be performed, the names of the tractor and top loader drivers to be employed, and where and to what equipment each driver is assigned. Using this list, DeRenzi makes daily as- signments of work. For the remainder of the shift DeRenzi is responsible for seeing that equipment is available and operable and that delays in the flow of container traffic between the ship and the stor- age yard are minimized. The record reveals that most of DeRenzi's time is spent "cruising" the yard looking for breakdowns. DeRenzi also obtains re- placement drivers when needed and administers driving tests. In finding that DeRenzi, as tractor foreman, re- sponsibly directed the work of the drivers, the Ad- ministrative Law Judge noted that, unless DeRenzi was a supervisor, up to 30 tractor drivers would operate with little or no supervision. He further noted evidence that DeRenzi had threatened driv- ers with discipline for insubordination or for delays unrelated to equipment failure, such as the over- staying of coffeebreaks. He also noted that DeR- enzi trains new drivers, is higher paid, and is viewed by employees as a representative of man- agement. Contrary to the Administrative Law Judge, we conclude that DeRenzi does not have supervisory authority. Tractor drivers deliver containers be- tween the ship and the storage yard on the basis of tickets, prepared by "checkers," which detail the location of the container in the yard or on the dock. Such duties are completely routine and re- quire little or no supervision or direction. To the extent DeRenzi does direct drivers, his actions appear to require no independent judgment. Thus, while DeRenzi announces the daily assignments, he does so from a list prepared by management, detail- ing not only the employee, but his equipment and job assignment. In regard to breakdowns, DeRen- zi's direction of employees is limited to determining the extent of the problem and telling the employee to obtain another piece of equipment. That De- Renzi grants or approves time off has not been es- tablished. Rather, the record reveals that employ- ees who leave early merely inform DeRenzi of that fact so that DeRenzi can obtain a replacement. Finally, the record does not support a finding that DeRenzi effectively recommends discipline. While some witnesses testified that they had been threatened with discipline by DeRenzi, no witness testified as to threats being carried out.7 At most, it I In regard to whether DeRenzi had the power to impose discipline in the form of "debits," the General Counsel's witness, Irwin, testified as follows: Q. Do you know of any person on the pier that Mr DeRenzi gave debit for detention? appears that DeRenzi reports rules infractions to management, a function which, standing alone, does not confer supervisory status.8 Thus, we con- clude that DeRenzi, as "tractor foreman," is actual- ly a leadman whose primary duties relate to the op- eration of equipment rather than the direction or supervision of employees. Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. A. It wouldn't be him to give it that would be the company. He turns it into the company this man is subordinate or refuses to work overtime the company hits him with the debit, not Mr. DeRenzi, he's just a chain of command. s See New York Shipping Association, Inc., 116 NLRB 1183 (1956). There, the Board found that "hatch bosses" were not supervisors despite the fact that they reported rules infractions to management. DECISION STATEMENT OF THE CASE ROBERT T. SNYDER, Administrative Law Judge: Pur- suant to a charge filed on May 23, 1979, in the above- captioned case, and an order withdrawing approval of settlement agreement in part and vacating and revoking the same issued by the Regional Director for Region 29 on July 31, in a related case (Case 29-CA-5966), a con- solidated complaint issued on July 31, 1979. Subsequent- ly, Local 920, International Longshoremen's Association, AFL-CIO (herein Local or Local 920), the Charging Party in Case 29-CA-5966, by letter dated March 4, 1980, filed request to withdraw its charge, and, although not thereafter acted on by the Regional Director, on the basis of that request, the General Counsel successfully moved at the opening of hearing herein to amend the consolidated complaint by withdrawing those allegations which pertained to the charge in Case 29-CA-5966. Those allegations were dismissed, Case 29-CA-5966 was formally severed from the instant proceeding, and Case 29-CA-7178-2 alone remains for disposition.' The com- plaint alleges that by refusing to recognize or hire the duly elected Local 920 temporary shop steward, Ronald Bel, and instead recognizing and dealing with its supervi- sor, Pasquale DeRenzi, as temporary shop steward, Re- spondent has violated Section 8(a)(1), (2), (3), and (5) of the Act. Respondent filed its answer denying the materi- al and conclusionary allegations of the complaint and hearing was held before me in Brooklyn, New York, on 'lo the extent that evidence relating to the dismissed allegations even outside the 6-month 10(b) period forms background shedding light on current conduct and motives, it has been included in the record. Crystal Springs Shirt Corporatron, 229 NLRB 4 (1977); Local Union 613 of the In- ternational Brotherhood of Electrical Workers. AFL-CIO (M.H. E Contract- ing, Inc.), 227 NLRB 1954 (1977). 455 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 23-26 and April 9, 1981.2 Briefs were thereafter submitted by the General Counsel and Respondent and have been duly considered. Upon the entire record in this case, including my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATIONS INVOLVED Respondent is a New York corporation with its princi- pal office and place of business located at 300 Western Avenue, borough of Staten Island, city and State of New York (herein the Staten Island Terminal or Terminal), where it is engaged in the business of performing steve- doring and marine terminal functions for various ocean- going carriers including United States Lines and Farrell Lines. At all times material herein, Respondent annually performs such services valued in excess of $50,000, of which such services valued in excess of $50,000 were performed in, and for various enterprises, including oceangoing carriers, located in New York State, each of which enterprises annually performs services valued in excess of $50,000 outside the State of New York, and for other enterprises located outside New York State. Re- spondent admits, and I find, that it is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that Local 920 and the ILA are each a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Local Insurgency Dating From 1976 and Adoption of Bylaws In November 1976, one Frank DeMayo was elected president of the Local. He ran against and succeeded Joseph Vicenzeno who had served as president for 15 or more consecutive years. At the same time, elections were also held to fill all other offices which, along with the office of president, comprise the Local executive board, including vice president, secretary treasurer, recording secretary, five executive board members, three trustees, and a sergeant at arms. DeMayo ran independently as an insurgent candidate. Some of the members elected to the other executive board slots were incumbents who were reelected. Chief among them were Pasquale (Patsy) DeRenzi, vice president, and Harold DeFazio, secretary- treasurer. DeMayo and the members who supported him represented a faction within the Local opposed to exist- ing policies and procedures supported by DeRenzi, De- s On the opening day of hearing, counsel for the International Long- shoremen's Association, AFL-CIO (herein ILA), appeared specially to dispute its then inclusion in the caption of the case, along with New York Shipping Association (herein the Association), as a party in interest. On motion made by the General Counsel that status was changed to the cur- rent status as parties to the contract. ILA also then disputed the General Counsel's basis in law for proceeding in this case in the face of the asser- tion that the matter appeared to be an internal union dispute not cogniza- ble under the Act. Since counsel appeared specially only on that occasion and has not otherwise participated, no appearance on behalf of the ILA has been noted. The question raised by counsel shall be dealt with later in this Decision. Fazio, other members of the executive board, and other Local members associated with them.3 The membership of the Local totals approximately 200, all of whom are employed by Respondent, the only remaining marine terminal on Staten Island. During his presidency, early in 1978, DeMayo was in- strumental in having the Local adopt a set of written bylaws for the first time. A number of key provisions came into play in this proceeding. They read as follows: ARTICLE XI POWER AND DUTIES OF OFFICERS Section 1. President-Business Manager (a) The President-Business Manager shall be the principal executive officer of this Local Union and shall represent and act for on and on behalf of this Local Union in all matters exept as otherwise spe- cifically provided for in these Bylaws. (b) He shall appoint and be a member ex-office [sic] of all committees, except as otherwise herein provided. (c) He shall be a member of and preside at mem- bership and Executive Board meetings. He shall convene meetings of the Executive Board or submit matters to their decision by mail or telegram as pro- vided herein. He shall be deemed a delegate to and shall attend all meetings of the District Council. (d) In order that he may properly execute his re- sponsibilities he is empowered and authorized to employ and discharge such representatives, organiz- ers (who shall be members in good standing of the Local Union or International) administrative, tech- nical or other employees as may be required and to retain counsel to act on behalf of this Local Union, he shall appoint all committees not otherwise pro- vided for by these Bylaws; he shall designate the duties and direct the performance thereof of offi- cers, organizers, representatives and delegates and all other employees. (e) He shall have the power and authority to in- terpret the provisions of these Bylaws. (f) He shall be responsible within the limits of his power for the enforcement of these Bylaws, the policies of this Local Union and/or the rules or rul- ings duly adopted by the Executive Board, and those duly adopted by majority vote of the mem- bership. Within these limits he shall strive to en- hance and strengthen the position and prestige of this Local Union; he shall have the authority and is empowered to take such steps and actions to carry out the purposes and objects of this Local Union, except as otherwise provided herein; he shall have such other and further powers in addition to those herein enumerated and shall perform such other and further duties as are usual to his office and as are performed by the President-Business Manager in ac- cordance with the usages of the International Long- shoremen's Association; he shall be empowered and 3 Certain errors in the transcript are hereby noted and corrected. 456 HOWLAND HOOK MARINE TERMINAL CORP. is authorized to make and incur such expenditures as may be necessary to effectuate any of the forego- ing except as otherwise specifically provided for in the Constitution. (k) He shall settle all dispute between members and management; and enforce union rules, working conditions and the provisions of the Collective Bar- gaining Agreement. * * * * i Section 3. Secretary-Treasury-Business Agent (f) He shall assist the President in settling all dis- putes between members and management; collect dues, inspect membership dues books to determine if members are in good standing; and enforce union rules, working conditions and the provisions of the Collective Bargaining Agreement. Section 8. Executive Board (a) The Executive Board shall be composed of all officers of this Local Union. (b) The Executive Board shall meet at such times as it deems necessary or upon the call of the Presi- dent-Business Manager, once each month, except July and August, at a time and place which it or the President-Business Manager may fix. * * . * * (e) The Executive Board may take action without meeting by written approval of a majority of its members after notice to all its members of the ques- tion to be decided. (f) A majority vote of the Executive Board mem- bers present at a meeting shall be necessary to carry any motion or resolution. Each member of the Ex- ecutive Board shall be entitled to cast one vote in that body; they may be no proxy voting. (g) The Executive Board shall be the highest governing authority within this local Union be- tween membership meetings. In addition to the au- thority granted to it as hereinbefore and hereinafter provided, it shall have the authority, except as oth- erwise specifically provided in these Bylaws which will advance and protect the interests and welfare of this Local Union and/or members .... (h) It shall have power and authority to appoint committees, not inconsistent with the provisions of these Bylaws, which it deems necessary for the good and welfare of this Local Union... ARTICLE XIII COMMITTEES The President-Business Manager may appoint such committees not otherwise provided for herein which in his discretion he deems necessary for the good and welfare of this Local Union. Such committees shall serve for such period of time as the President-Business Manager may deem necessary, but in no event beyond the term of office of the President-Business Manager. ARTICLE XIV SHOP STEWARDS Section 1. Shop Stewards for each pier or termi- nal or any other unit of work which the Executive Board may deem necessary, shall be elected, pro- vided, however, that only book members at the par- ticular pier or terminal or other unit of work may vote for their shop steward. Each steward must be elected as soon as practicable after the adoption of these Bylaws and shall serve for terms of three years. He shall be removed upon presentation of a petition signed by 2/3 of list men on the pier or ter- minal where he acts as steward. Section 2. It shall be the duty of the Shop Ste- ward to prevent any unauthorized work stoppage; to carry out the instructions of the President-Busi- ness Manager and Secretary-Treasurer-Business Agent. He shall report to the President-Business Manager and Secretary-Treasurer-Business Agent, any non-member or unauthorized person, and sus- pended, fired, expelled or withdrawn member em- ployed at such location; report any violation of union rules, contract or working conditions to President-Business Manager, and Secretary-Treasur- er-Business Agent and to do any and all things re- quired of him by the President-Business Manager or Secretary-Treasurer-Business Agent. Section 3. No Shop Steward shall have the right to modify, change or vary any terms or provisions of the Collective Bargaining Agreement or interpret any provision of these Bylaws. He shall not be deemed an officer of this Local Union. He shall not be deemed an agent of this Local Union, except to the extent of reporting to the President-Business Manager and Secretary-Treasurer-Business Agent the matters hereinbefore set forth. Other provisions, inter alia, provide that 40 members in good standing shall comprise a quorum for the trans- action of business at any membership meeting (art. IX, sec. l(b)) and the minimum number of members neces- sary to recommend in writing to the executive board amendments to the bylaws (art. XVI), and require a strike to have the majority vote of the members of the 457 DECISIONS OF NATIONAL LABOR RELATIONS BOARD executive board, thereafter approved by a majority vote of the members in good standing at a meeting of the gen- eral membership (art. XV). B. Labor Relations Setting and Contract Provisions Respondent was formed in 1975. It is a member of the Association which has a longtime collective-bargaining relationship, and which represents its members in collec- tive bargaining, with the ILA and its affiliated locals. A general cargo agreement in effect between the parties for the Port of Greater New York and vicinity covered the period October 1, 1977, to September 30, 1980. A master agreement on seven master contract issues was entered with the ILA by the Association and four other east and gulf coast employer associations and the Association en- tered a separate agreement covering local issues in dis- pute with the ILA, both effective October 1, 1980, to September 30, 1983. The Association-ILA successor agreement continued in effect all contract provisions from the 1977-80 agreement not otherwise modified. Thus, at all times material, the Association-ILA and its affiliated locals agreement has included, inter alia, a no- strike, no-lockout provision (part III); a provision recog- nizing the right of the employees on the employer's premises to select an employee of their own choosing- to be known as shop steward without interference from the employer, to act as their representative and spokes- man under the grievance machinery and arbitration plan in presenting their grievances to the employer on the premises and in attempting to resolve them satisfactorily (part VII, sec. A, 4); establishment of a joint labor-man- agement committee known as the NYSA-ILA Contract Board made up of representatives from the parties to ad- minister standards and policies with respect to the con- tractual provisions and fringe benefit plans (part VI); grievances machinery which provides for unresolved first-step grievances to be subject to settlement proce- dures undertaken at pier side by contract board adjuster and at third step to be submitted for disposition to a joint labor relations committee (LRC), a subdivision of the contract board, and if still unresolved, to the contract board, and finally to binding arbitration (part VII); pro- cedures regulating hiring and income guarantee, includ- ing a hiring hall system operated out of hiring centers operated by the Waterfront Conmission of New York Harbor, among them one located on Staten Island, and continuing a guaranteed annual income program (GAI) established by an agreement and declaration of trust and plan in 1972, to provide certain guaranteed income on an annual basis to covered employees who worked or are credited with certain minimum hours (700) per contract year and including provision for penalizing employees 8 or more hours by means of a system of multiple debits for various infractions such as failure to accept work of- fered in hiring center, refusal of a prior day order (pursu- ant to which employees are hired and ordered for work on the day prior to their actual assignment) and refusal to work as ordered (insubordination) (art. VII);4 hiring 4 The Agreement and Declaration of Trust and Plan, as amended Feb- ruary 25, 1980, inter alia, describing the system of debits, forwarded by Respondent after close of hearing pursuant to agreement, is hereby re- ceived in evidence and marked ALJ Exh. 2. practices and procedures which provide for the system of prior day hiring of regular gangs and individual men and extra gangs and men (annex A); and a containeriza- tion agreement provident for ILA work jurisdiction over the loading and discharging of sealed containers on and off ships, providing for royalty (supplemental cash) pay- ments to covered employees, and rules governing such operations, including the requirement of a minimum longshore container gang size for loading and unloading of 18 men plus two drivers. (Annex B.) The agreement also contains a 30-day union-security clause and checkoff authorization (part II). The contract and testimony of various witnesses refer to "list men," a term describing an employer's comple- ment of available labor who are on the employer's list for work on the prior day order basis and who must accept work in their list jobs, for the employer within the employer's zone-in the case of Respondent, the Staten Island zone. (See agreement, art. VII, Procedures Regulating Hiring and Income Guarantee.) It is this group of list men which comprises the 200 employees in Respondents work force. In practice, the local steward has been employed daily to represent the employees in enforcing the various pro- visions of the agreement and handling grievances infor- mally as they arise and the local president-business man- ager has, with or without the assistance of the secretary- treasurer-business agent, at least on occasion, acted to seek settlement of grievances and disputes which have arisen in the administration of the agreement. To this extent, in addition to being party as affiliated local to the agreement as it applies to Respondent's terminal, Local 920 has been the joint exclusive representative, along with the ILA, of the covered employees employed by Respondent, for the purpose of collective bargaining, notwithstanding Respondent's denial that Local 920 enjoys such status. The parties have also stipulated that the unit of em- ployees covered by the agreement involved herein, in- cluding all longshoremen, including deckmen, holdmen, dockmen, sorters, drivers, terminal laborers, and ship la- borers, exclusive of office clericals, guards, and supervi- sors as defined in the Act, constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. C. Respondent's Operations Respondent's terminal is large enough to accommodate three oceangoing ships at one time alongside its pier. It contains 187 acres spread alongside and away from the docking areas (generally described as the "yard"). The distance between dockside and the area furtherest away from the dock exceeds 500 yards. Cargo, consisting pri- marily of sealed containers 40 feet in length, are loaded or unloaded aboard ship and either stored on flatbed trailers, directly on the ground, or moved directly out of the terminal on trucks. When, as regularly occurs, two or three ships are being worked on at the same time, the maximum of five longshore gangs is employed, each con- sisting of 17 men and a hatch boss who work on the ship, on the deck and in the hold loading or unloading 458 HOWLAND HOOK MARINE TERMINAL CORP. the cargo. The hatch boss stays at dockside transmitting work orders and spending some limited time engaged in physical work.5 The gang also includes a crane operator who operates the crane on the deck at shipside which raises and lowers containers from and onto the trailers. There are upwards of 500 people on the premises on any given day, including the employees. For the three ship berths, five cranes (or derricks) are employed. Respond- ent is one of the largest container terminals in the Port of New York, with a capability of handling upwards of a 1,000 to 12,000 containers and averaging approximately 700 containers a day in and out, dock to ship and ship to dockside. The value of cargo thus moved runs into the millions of dollars daily. Often, those employees who work the full day shift starting at 7 or 8 a.m. are ordered to work overtime to complete an unloading and loading operation which often continues around the clock. Those who cannot are replaced by extra men for the evening shift starting at 5 p.m. and later, and, when warranted, are supplemented by extra gangs and work crews not previously assigned (see agreement, part IV, A, l(a), and C, 7, of annex A). When unloading containers, the tractor driver pulls the attached trailer with the container to a designated lo- cation on Respondent's property where it is either stored on the flatbed trailer (the tractor cab having been de- tached) or is taken to another area further removed from the dock where a stacker driver operating a top loader (a form of hi-low machine capable of carrying and placing a load the size and bulk of the sealed 40-foot container) removes the load and stores it on the ground. In some instances the container is hoisted from the ship directly onto a truck for direct removal from the premises. The tractor drivers and stacker drivers also perform the re- verse operation in loading, driving the trailer to dock side and having the container hoisted aboard ship for stowing by the gang. The levels of authority and managerial hierarchy relat- ing to these workers are as follows: Directly under the president, Carmine Ragucci, is the operations manager, Michael R. Gallo, who oversees the complete terminal operation, monitoring each of its components, including crane crew, maintenance crew, those who store and ' See New York Shipping Association, Inc., 116 NLRB 1183 (1956), for a fairly specified and detailed description of the hatch bosses' duties, on the basis of which the Board determined they did not responsibly direct the members of the gang and were not supervisors within the meaning of Sec. 9(b) of the Act and were accordingly included in the appropriate unit. In the same decision, head foremen and assistant head foremen about whom there was no dispute were excluded, and dock bosses or foremen about whom evidence was meagre were retained among the ex- clusions in accordance with the unit found appropriate in 1953. While the record herein does not involve the status of hatch bosses, to the extent it contains any reference to them and their duties, it is not at variance with the facts recounted in New York Shipping Association except that the size of the gangs are now 18 rather than 21 men, and whereas in the mid- 1950's at times I or 2 tractor drivers who move cargo on the dock or pier were attached to the gang (see fn. 6 at 1186, id.) six such drivers and additional other drivers who operate stacker machines (top loaders) per gang are employed. This change is probably related to the change in the nature of the storage of cargo from open bulk to container. The 1956 Board decision did not examine the relation of the one or two drivers to the hatch boss other than to describe them as being "attached to the gang." The drivers' relationship to the hatch boss, tractor foreman, and yard foremen is central to resolution of certain of the issues in this case. move less than container loads in and out of a warehouse (the LCL building), and longshore work gangs through superintendents who report directly to him. With respect to pier operations there is a pier superintendent and an assistant pier superintendent who are responsible for all activities on the pier. They are not union members nor in the bargaining unit. The next lower level is the general or head foreman who has direct overall responsibility for work in the yard, on the ship, and at the pier. Reporting directly to him are two assistant head foremen. While ex- cluded from the unit in the 1956 Board decision, these three and all foremen under them nonetheless are re- quired to be union members and Respondent has volun- tarily agreed to their inclusion in the bargaining unit. Furthermore, under existing practice since Respondent's organization in 1975, all foremen from the level of gener- al foremen on down are selected for their positions by Local 920 on the condition that Respondent finds them qualified for the job. The inference is strong that they hold their positions as foremen only with the approval of the Local and are subject at all times to its discipline?. One of these two assistant head foremen supervises the warehouse labor and the other supervises the ship steve- doring. The ship assistant head foreman has his own as- sistant and five hatch bosses (foremen or gang foremen) whose duties have been briefly described and who are directly responsible for the loading and unloading of a particular area of a ship performed by 17 men gangs. Under the warehouse assistant head foreman are four headers (straw bosses or assistant foremen). There is also a yard foreman, considered an assistant foreman, who ap- pears to direct the placement of the containers and their removal for loading. 7 In addition to the foregoing, Respondent employs a machine or tractor foreman. As described by Respond- ent's president, he is a staff foreman and answers directly to the head foreman who provides him on a daily basis with a list of the activities to be performed, the names of the tractor and top loader drivers to be employed and whether the driver is assigned to tractor in the yard or warehouse or to top loader. The machine foreman takes this information and makes the daily assignment of men to particular equipment and location within the area pre- viously designated. 8 He also sees that the equipment is available and operable and that the repairs of defective equipment are expedited and that the individual driver "isn't delayed any further or any longer than he should 6 Neither the complaint nor the General Counsel asserts that these facts warrant a finding of unlawful employer assistance. Rather, they appear to manifest an abdication of employer responsibility which pro- vides the Local with enormous power and authority in shaping and de- termining various aspects of the employment relationship. "However, Congress has not seen fit to make it an unfair labor practice for a labor organization to dominate or interfere with the administration of an em- ployer's business." Nassau A Suffolk Conractors' Association Inc., etc.. 118 NLRB 174, 185 (1957). While the yard foreman's duties were not spelled out in detail, signifi- cantly, Respondent's president failed to mention the yard foreman among those in the supervisory hierarchy who direct the tractor drivers in their duties. The only other foreman who patrols the yard is the tractor fore- man, see infra. s Checkers also provide the drivers with the tickets describing the pre- cise container cargo to be moved and their precise location in the yard or on the ship. 459 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be or would be." Although President Ragucci denied that the machine foreman is responsible for directing the work of the drivers, there are a number of facts disclosed on this record which lead me to conclude, to the con- trary, that the machine foreman is a supervisor within the meaning of Section 2(11) of the Act. It is significant that Respondent's president places the machine foreman, at least with respect to his specialized responsibilities, at a level in the hierarchy just below the head or general foreman. The machine foreman is thus not located at the lowest rung in the supervisory hierar- chy and seemingly speaks with greater authority and independence when directing the drivers and recom- mending personnel actions. It is also significant that Ra- gucci placed responsibility of the tractor drivers' work performance with the foreman or assistant foreman in the particular area to which those drivers report. The only foreman who covers the full area of the yard where the tractor drivers are daily assigned is the machine foreman. As many as 30 such drivers as well as 4 or 5 top loaders are assigned when more than I ship's cargo is being worked on and 18 drivers are employed if I ship is at dockside. These drivers are moving container loads from pier side to yard and back to pier side without any other direct supervision, given the responsibilities of the other foremen as described." Given further the responsibilities of the machine foreman with respect to minimizing "down" time of the machine equipment and men, the in- ference is inescapable that the machine foreman has the responsibility of supervising their work. The evidence bears this out. The machine foreman makes the equipment and job as- signments each morning. H e checks employee attendance at the pier gate. He drives a company truck around the premises and yard, carrying a clipboard while keeping track of the work scheduling, work breakdown, and other problems which may arise, including reassignments of drivers to replacement tractors. He engages in no physical labor himself. When coffeebreaks have been unduly extended, overtime work has been refused, or company time is being used to make private telephone calls the foreman is there to threaten the driver with multiple debits for refusal to work as ordered or insubor- dination and to discipline the men on the spot for solder- ing on the job by loud words and pressure. One witness testified to rough language, a scuffle, and complaints by the machine (tractor) foreman'° against a colleague who was allegedly overextending his coffeebreak in 1978 or 1979. Another witness recalled that he was threatened more than once by the night machine foreman with mul- tiple debits for refusing to work overtime or leaving 9 While it is not the crux of the status determination, the size of the shop, the number of employees needing supervision. and the number of supervisors available bear on the determination of whether or not a person is imbued with supervisory status. The higher the ratio of supervi- sors to employees, the less likely there will be a finding of supervisory status. N.LR.B. v. American Oil Co., a Maryland Corp., 387 F.2d 786 (7th Cir. 1967); Buller-Johnson Corp. v. NLR.R., 608 F.2d 1303 (9th Cir. 1979); N.LR.B, v. The Bama Ca, 353 F.2d 320 (5th Cir. 1965); Warner Company v. N.LR.B., 365 F.2d 435 (3d Cir. 1966). 10 The foreman was Patsy DeRenzi, then local vice president and in- terim or relief shop steward in the absence of the regular shop steward. See sec. D, infra. work before the end of his regular shift and that other drivers were hollered at and ordered back to work by the foreman for overextending their breaks. The machine foreman also seeks to determine responsibility for slow work or failure to operate the equipment and threatens debits for failing to perform assigned work or insubordi- nation where the downtime is not attributable to a ma- chine or equipment breakdown. ' I While Respondent employed only one machine or tractor foreman at all times material, two individuals filled that position. Charles Mayo was the regular ma- chine foreman. However, Patsy DeRenzi has performed that job at night for the past 4 or 5 years. DeRenzi start- ed to fill in at night when Mayo started to decline those assignments. 1 2 According to DeRenzi, he has acted as night tractor foreman pretty steadily the last 4 years since Mayo got sick.' 3 In addition to his other duties, as machine foreman DeRenzi trains new longshoremen on the job to operate tractors and stackers, and, if they are not determined by him to have qualified for the position, they are not as- signed work in those classifications. In 1979, DeRenzi's hourly rate was $11.90 as compared with $11.40 earned by longshoremen and $11.60 paid to drivers. 14 DeRenzi also approves requests of drivers to leave work early and arranges for their replacement. Finally, DeRenzi is con- sidered, by the employees who testified, to be a boss or supervisor, one indicating that he is the individual who they expect to be responsible if they "foul up." 15 When questioned closely on cross-examination, De- Renzi could not recall telling a Board agent during the investigation of the charge that he had authority to bring an employee up on charges for negligence to the general foreman. He also could not remember telling the Board agent that he rode around the premises in order to make sure the men were not goofing off or sleeping on the job I Although the record indicates that most often DeRenzi threatens disciplinary action without taking steps to effectuate his threats, it must be remembered that it is the possession of Sec. 2(11) authority, not its ex- ercise, which is determinative on the status issue. Global Marine Develop- ment ofCalifornia. Inc. v. N.LR.B., 528 F.2d 92 (9th Cir. 1975). N.LR.B. v. Leland Gifford Co., 200 F.2d 620, 625 (Ist Cir. 1952), "[olnce an indi- vidual has actually been clothed with genuine power to perform a super- visory function, he thereupon becomes a 'supervisor,' even before an op- portunity arises to excercise his power, and even though he may not often find it necessary to exert the power conferred." Id. i1 The permanence in the supervisory position is important because it suggests that the requisite alliance with management is present. West Penn Power Co. v. N.L.R.B., 337 F.2d 993, 996-997 (3d Cir 1964). Here the testimony indicates that DeRenzi did more than temporarily assume su- pervisory chores for an absent supervisor or perform isolated and infre- quent duties of a supervisory nature. While the permanence in a supervi- sory position is not a primary indicia of supervisory status enumerated in Sec. 2(11) of the statute, it is a secondary indicia of such status and serves to tip the scale in favor of a finding of supervisory status. "' DeRenzi has also been employed days by Respondent in another ca- pacity, apparently operating heavy equipment. "4 Oil. Chemical and Atomic Workers Union [Kansas Refined Helium Ca] v. N.LR.B., 445 F.2d 237, 242 (D.C. Cir. 1971); N.LRB. v. Sayers Printing Ca, 453 F.2d 810, 815 (8th Cir. 1971). The disparity in compen- sation is another secondary indicia of supervisory status to be considered. is An alliance with management is a necessary prerequisite to a finding of supervisory status. The beliefs and expectations of employees are rele- vant in this regard, as is the alleged supervisor's opinion of his own status. N.LR.R v. Monroe Tube Company. Inc., 545 F.2d 1320 (2d Cir. 1976); N.LR.B. v. Quincy Steel Casting Ca. 200 F.2d 293 (Ist Cir. 1952). 460 HOWLAND HOOK MARINE TERMINAL CORP. and, if they were, he got them back on the job. DeRen- zi's responses were not creditable. DeRenzi did not deny that he had such authority at the time, merely that he could not recall giving such responses, although earlier on direct examination by Respondent's counsel he denied generally being able to hire, fire, discipline, reward, or make recommendations to such effect. Upon the basis of the corroborative evidence of individual incidents testi- fied to by employee witnesses, my evaluation of DeRen- zi's lack of credibility, as well as the evidence regarding the nature of the foreman's job as disclosed by Respond- ent's president and all other factors, including the ab- sence of any direct substantial supervision of 30 drivers other than by the tractor foreman, I conclude that De- Renzi has effective authority to recommend discipline, and does responsibly direct the performance of the duties of tractor driving and thus the function performed by DeRenzi on a regular basis at night is a supervisory one.16 D. Background Evidence of Local Internal Conflict Arising Primarily Over Designation of Interim Shop Steward Anthony Motola, a longtime Respondent employer and union member, had been the Local's shop steward for some years when DeMayo took office as president in 1976. He had been appointed to the position by Vicen- zeno, DeMayo's predecessor as president. Friction with DeMayo developed early after De- Mayo's election and affected their relationship. Motola 6S While the duties of the machine foreman seem analogous to those of a hatch boss in New York Shipping Association, supra, there are several factual differences upon which the two jobs can be distinguished. The hatch boss appears to be merely a conduit of management, relaying orders to employees from superior company officials. He assumes the job of hatch boss on an irregular basis, working alongside the men when he is not serving as hatch boss. Such an assumption of supervisory authority even for a short period of time each day does not imbue the hatch boss with 2(11) powers. N.LR.B. v. Southern Airways Company, 290 F.2d 519 (5th Cir. 1961); Poultry Enterprises v. N.LR.B., 216 F.2d 798 (5th Cir. 1954). Additionally, the hatch boss works under immediate and frequent supervision. The machine foreman, on the other hand, does not work under frequent supervision and, in fact, the tractor drivers do not work under any direct supervision if DeRenzi is not a supervisor. Additionally. the men he supervises regard him as a supervisor possessing the authority to mete out discipline. DeRenzi tests drivers to determine whether or not they are qualified and his decision is given great weight. He is also re- sponsible for the men who work under him and can reassign employees when necessary. Hence, DeRenzi exercises independent judgment in per- forming his duties whereas the hatch boss did not. International Union of United Brewery, Flour, Cereal. Soft Drink and Distillery Workers of Amer- ica, AFL-CIO [Gulf Bottlers, Inc] v. N.LR.B., 298 F.2d 297, 303 (D.C. Cir. 1961), cert. denied 369 U.S. 843 (1962). Respondent's citation to Hesston Corporation. Inc, 175 NLRB 96 (1969), is also easily distinguishable from the case at bar. The crew chiefs in Hesston worked under immediate supervision, assigned men to jobs pursuant to the directions of a superior company officer, and enjoyed the same pay and benefits as employees and had no authority to hire or dis- charge, select employees for overtime, grant time off, or effectively rec- ommend that such actions be taken. In the case at bar, however, the ma- chine foreman does not work under constant supervision, assigns and reassigns men to locations on his own initiative, arranges replacements for employees unable to work overtime, is empowered to discipline recal- citrant employees, receives different compensation from employees, and is generally regarded as aligned with management. Respondent's addi- tional citations are equally unconvincing. believed that DeMayo wanted to get rid of him " so that he could run the Local the way he wanted to. For his part, DeMayo believed that Motola was ignoring him. After his election, DeMayo became active in 1977 in pressing contract disputes on behalf of the unit employ- ers independent of the shop steward. Among them were questions of premium pay for machine equipment and crane operators, which DeMayo took successfully beyond pier level meeting at first step where Ragucci did not agree to DeMayo's demand, to a second or third step grievance determination after hearing. DeMayo also personally took up and won before the LRC against Re- spondent at third step a contract grievance that Re- spondent had failed to employ a full ship gang for work- ing lighters loaded with containers when a derrick was in use. Then, during a strike called in 1977 by the ILA and its affiliated locals, including Local 920, at all ports, during a dispute arising over terms for the successor 1977-80 labor agreement, Motola went on vacation. DeMayo, be- lieving it important to have a replacement steward avail- able and functioning for the local during such a critical period, and Motola having failed to designate a relief ste- ward in his absence,18 DeMayo himself selected John Pavacic, a list man for Respondent, and so informed Ra- gucci. Pavacic was not recognized by Respondent, an- other employee was recognized without DeMayo's knowledge or consent, and Respondent's watchman also kept DeMayo from coming on and inspecting Respond- ent's premises, on orders of Respondent. ' Ragucci testi- fied that he would not deal with DeMayo because he had threatened to close the facility down on more than one occasion and Ragucci could not accept that. Subsequently, in 1978, after adoption of the bylaws, Motola was elected shop steward by the Local member- ship and thus continued in that position. DeMayo testi- fied that the procedures for holding the election, includ- ing selection of the election committee, the election date, notices, and the like were all formulated by the Local ex- ecutive board without his being advised or having had an opportunity to participate in its deliberations. DeMayo had plans to conduct the election on May 8, and instead the other members of the executive board conducted it on April 11, 1978. DeMayo was summoned to the event like any other member without any advance notice. Although initially there had been four candidates, only Motola's name remained in contention by election 17 Recall that the bylaws pushed through by DeMayo early in 1978 provided for membership election of the shop steward. '8 On past occasions, Motola testified he had always appointed an in- terim steward when he was on vacation or other leave but he failed to testify about any relief appointment to handle grievances during his ab- sence while the Local was on strike in 1977. DeMayo himself was on the strike committee and not available to make sure; e.g., that only military cargo and containers were being handled at Respondent's pier in accord- ance with union policy. i' It was as a result of those incidents that DeMayo filed the charge in Case 29-CA-5966 on October 12, 1977, on behalf of the Local, alleging, inter alia, that by refusing to recognize the Local's president and the des- ignated shop steward, Respondent had violated Sec. 8(aXl) and (3). As noted, this charge was resolved by execution of an informal settlement agreement, which, in turn, was set aside in part. consolidated with the instant Case 29-CA-7178-2 and then withdrawn at the instance of the Local on motion of the General Counsel at the opening of hearing. 461 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day, the three names having been removed, one candi- date informing DeMayo that he was afraid to continue in the race. 20 DeMayo testified to a concern that a number of the members of the Local's executive board held former po- sitions 2 1 in which they were earning $35,000-$40,000 an- nually, were directly controlled by management and acted as rubber stamps for management concerns and de- cisions. It was this thinking that influenced the exercise of his authority in selecting interim shop steward's on Motola's subsequent absences from employment. Upon Motola's election, DeMayo arranged a special meeting of the executive board to attempt to resolve his growing problems with Motola and the board centered around the designation of a relief steward. The meeting was held on May 5, 1978, to which DeMayo invited two nonofficers, John Irwin and Victor Antonetti, to bear witness to the settlement, and at which Motola was also present. An agreement was then reached providing that Motola would give DeMayo advance notice of future leaves and his involvement with any grievances and that so long as an "A" man was picked (one with 25 or more years as a longshoreman) DeMayo as president had the right to appoint any member as substitute steward.2 2 Within a few months after this meeting, an occasion again arose when Motola took leave. DeFazio informed DeMayo that DeRenzi had a heart attack, he could not work, they (presumably Respondent) did not want him to work around the clock anymore, "he's the vice presi- dent of the local, let's give him a break." DeFazio made reference to Ragucci's concern that, if DeRenzi contin- ued being employed for lengthy workdays in his present position, Respondent would be responsible for any fur- ther deterioration in his health. Thus, the only way he would be carried was as interim steward for which the Union would bear responsibility (although paid his regu- lar salary by Respondent). As DeMayo explained it, in order to keep the peace he selected DeRenzi as the inter- im shop steward. Again, around Labor Day 1978, when Motola took some time off, DeMayo selected DeRenzi as interim steward. Then, on September 27, 1978, Motola informed DeMayo that he was going on vacation for 2 weeks. By this time, DeMayo had received complaints from members that when DeRenzi had functioned as relief shop steward, Respondent had not filled his regular day job with a replacement, leaving his work gang short handed, and also that he was a boss and was not enforc- 20 DeMayo testified that none of these candidates who withdrew were associated with him. He also noted that his earlier selection for interim steward, John Pavacic, had been driven not to run. 21 The record discloses that besides DeRenzi, the local vice president and night tractor foreman, in 1979, Harold DeFazio, secretary-treasurer- business agent, was a hatch boss, Salvatore Minucci, recording secretary, was a dispatcher and Charles Munucci, trustee, was a snapper or assistant foreman in the warehouse building. 22 While Respondent, through DeFazio (not Anthony Anastasio as in- correctly described in the transcript at 598 and thereafter), produced a number of minutes of Local regular membership and executive board meetings which were introduced into evidence, the minutes of this special May 5, 1978, executive board meeting were not among them. While DeMayo characterized the meeting as being held "on the record" per- haps no minutes were taken. In any event, no Respondent witnesses, in- cluding DeRenzi and DeFazio, disputed DeMayo's recollection as to its substance. ing the labor agreement. The question raised by those members was how could a man be a tractor foreman controlled by the bosses and a shop steward. 23 This time DeMayo determined to select Carmine DeRenzi as inter- im steward and so informed Motola. DeRenzi was a member of the executive board, an "A" man, and, in De- Mayo's view, would be responsible to the Union. De- Renzi apparently was also advised and did not refuse. However, DeMayo shortly afterward received a tele- phone call from DeRenzi who said DeRenzi (his cousin) was sick and would not accept the position. DeMayo next approached a number of A men, includ- ing other members of the executive board, and all of them refused. As DeMayo put it "they all were leery. I seen the trend." One A man, a terminal labor driver named Michael Piccozzi, did accept and DeMayo so in- formed Respondent. Respondent refused to recognize Piccozzi and instead recognized DeRenzi, its night trac- tor foreman. DeMayo thereupon filed a grievance and a first-step pier level meeting was held at the Howland Hook Terminal on October 17, 1978, attended by Ra- gucci and Gallo for Respondent and DeMayo and Motola for the Local 24 and mediated by Ray Williams as contract board adjuster. Both Williams and Ragucci made reference to part VIII, A, 4, of the contract, recognizing the right of the employees on the premises to select a shop steward of their own choosing. Motola objected to DeMayo's selec- tion of Piccozzi and presented a petition apparently signed by over 100 Local members requesting Respond- ent to retain DeRenzi as temporary shop steward. While no witness so indicated, including Ragucci, the minutes of the meeting make reference to a report received by Respondent that there would be a work stoppage if Pic- cozzi were given the position. Ragucci said the Compa- ny would recognize any shop steward the men wanted. DeMayo argued that the executive board had empow- ered him to appoint an A man as interim steward, and there was not time to hold an election to fill the position. The meeting resulted in an agreement that in the future an election would be held by the list men to choose a (backup and interim) shop steward. The min- utes note that "as this matter has been settled at pier level it is reported to the [LR] Committee as a matter of z3 The record is not perfectly clear as to whether DeRenzi continued to function as night tractor foreman on those occasions he served as in- terim shop steward. Respondent counsel's effort to dispel any inference that DeRenzi performed both jobs simultaneously was undermined by DeRenzi himself when, in response to counsel's inquiry on direct: "Did you have occasion to fill in as night machine boss on occasion?" DeRenzi responded in the present tense, "I do." At the time of the questioning, DeRenzi was both president of the Local and its acting shop steward. Furthermore, the shop steward position was basically a day position while the machine foreman job DeRenzi performed was at night. No other individual was ever named as performing the foreman's job at night other than DeRenzi and clearly, so long as ships were worked on a regu- lar basis at night, someone was necessary to be responsible for the tractor drivers' performance of their duties. I thus conclude that when DeRenzi substituted as steward and thereafter he continued in his position as night tractor foreman. 2a On the identity of the participants, I have credited Ragucci, De- Renzi, and DeFazio that the latter two were not present as against De- Mayo's recollection that they were. The grievance adjuster's minutes of the grievance meetings also do not include then as participants. 462 HOWLAND HOOK MARINE TERMINAL CORP. record." DeMayo, who had sought pay for Piccozzi be- cause of Respondent hiring agent's refusal to select him for employment as steward in Motola's absence, 25 ulti- mately dropped this claim when Piccozzi himself decid- ed not to press the matter any further. 2 6 Minutes of the Local's regular membership meeting of November 14, 1978, show that, during old business, DeMayo spoke on interim shop steward election at Howland Hook Termi- nal. The minutes continue, "After a lengthy discussion on interim shop steward, F. DeMayo, and T. Motola, stated that they would come to an agreement, F. DeMayo, also stated that there would not be an election for interim shop steward." DeMayo testified that the agreement referred to was in fact the May 5, 1978, one which he understood as authorizing him to appoint an in- terim steward after Motola had informed him he would be absent and of the state of any grievances then pend- ing. I credit DeMayo's interpretation of this "agreement" when he testified "how could I make a deal [on Novem- ber 14, 1978] with a fellow-that abused me." While DeMayo did not recall the latter statement, the minutes were read and approved at a later meeting, and De- Mayo's acquiescence to not holding an election in the future is consistent with the recital of the earlier under- standing between DeMayo and Motola and DeMayo's initial attempt to select a replacement for Motola on his next extended absence from employment in May 1979, to be discussed in section E, infra. On recall by Respond- ent, Motola did not testify to any events at this meeting, merely that the minutes were subsequently read and ap- proved. E. Bel's Nonhire and DeRenzi's Designation as Interim Shop Steward On May 2, 1979, DeFazio informed DeMayo that Motola was going on vacation. DeMayo called Motola to verify this information and to advise him that he, DeMayo, would pick Walter Sabino, a list man, in his absence. According to DeMayo, Motola replied he was going away and he did not care what happened. 2 7 On May 4, a Friday, DeMayo learned from Sabino that he refused to accept the steward position. Later that day, DeMayo spoke to Ragucci about the continued problem of finding someone willing to serve whenever Motola 2" While the Association agreement only provides that "When the presentation of such a grievance is urgent, a reasonable time spent in doing so on the premises shall be allowed such designated [shop steward] employee without loss of pay" and the steward shall not be required to be a member of a gang (part VlIl, A. 4), in practice and as sanctioned by Respondent, the shop steward enjoyed superseniority, being retained so long as one unit member was employed, and was allowed to function full time as steward while continuing to receive the rate of pay of his immec diately prior position. See, generally, Dairylea Cooperative Inc., 219 NLRB 656 (1975), for the presumptive validity of this practice. Thus, a gang member such as Piccozzi, when his gang is not assigned to work, would not be employed if not otherwise hired at the hiring center for employment as interim steward. '6 Probably because of DeMayo's insistence on compensation for Pic- cozzi, the minutes of the settlement bear a final note that DeMayo called the adjustor a day after the meeting to object to the settlement if Piccozzi were not paid. a' Whatever Motola told DeMayo, in fact he had selected DeRenzi again as his replacement and had so advised the other members of the executive board. Motola was to be gone for 2 weeks commencing Monday, May 7. took leave, a problem which was aggravated by the fact that Motola had purchased a house in Florida and would be spending more time there. As DeMayo put it, "we've got to settle this once and for all, we'll put it in the hands of the men." Ragucci agreed, and plans were un- dertaken to conduct an election. DeMayo sought out Motola to make signs to solicit nominations and to place them around the area. Not finding him, DeMayo made his own make-shift signs calling for nominations for election for interim steward and posted them. DeMayo also solicited and formed a four member committee to conduct the election. On Monday, May 7, after the committee was formed, DeMayo got Ragucci's permission to use the LCL build- ing shed to conduct the election during work hours and to relieve the committee members from their normal duties to run it, and posted new signs which now noti- fied the members that nominations for interim steward were in order, any list man could run for the position and included the date, time, and place of the election, May 8 between 7 a.m. and 2 p.m. in the LCL shed. Three men came to DeMayo between May 4 and 7 af- firming they were nominees, each one with a sponsor or seconder. On May 8, a secret-ballot election was conducted by two members of the election committee, Victor Anton- etti and John Irwin, the other two being unavailable, among Respondent's list men between 7 a.m. and 2 p.m. DeMayo had ballots printed up at his expense listing the three candidates and the committee used printouts from the Waterfront Commission listing every employee working at Respondent's premises to check eligibility. Every voter signed next to his name. The results showed that, with 100 votes cast, candidates Ronald Bel received 58, Ronald Bellegeri received 19, Michael Piccozzi re- ceived 14, and there were 9 void ballots. At or around 3 p.m., DeMayo and the two committee men went to see Ragucci in his office. They gave Ra- gucci the results, he called the timekeeper, learned there had been 130 men working on the pier from the 8 a.m. shape and agreed to recognize Bel. Since it was then too late to have Bel hired for the next day under the prior day order computer system, Ragucci agreed to hire Bel at the hiring center under the 8 a.m. shaping procedure to fill in extras and to replace absentees. Shortly after the three men left, Ragucci was visited by DeFazio and DeRenzi who submitted a statement signed by 12 of the 13 remaining members of the execu- tive board and in which they deemed the election invalid because DeMayo violated the union bylaws in calling such an election. Ragucci acknowledged that he was in- formed that the election was in violation of the board's agreement or understanding or was unauthorized and had not been conducted with their approval.2 s Ragucci 28 DeFazio testified that the executive board had not been consulted either before or immediately after the election. But they were aware of and had participated in arriving at the May 5, 1978, agreement. No ques- tion was raised that Bel was not a senior or A member. Motola, not a member of the board nor an officer of the Local, testified that the elec- tion had been illegal because the election committee did not include a representative from each segment of the work force, including tractor Continued 463 DECISIONS OF NATIONAL LABOR RELATIONS BOARD informed DeFnzio and DeRenzi about his conversation with DeMayo and what he was expected to do about Bel's next day hire as interim shop steward. The two of- ficers informed Ragucci that they expected him to re- spect the wishes of the executive board and recognize DeRenzi as Motola's designee for interim steward, or there would be trouble the next day if he accepted Bel as the interim steward, DeFazio going so far as to state that there would be a work stoppage if Bel were recog- nized.2 9 Ragucci sought and finally reached DeMayo by telephone and told him that, in view of the approach by DeFazio and DeRenzi, he could not guarantee he would employ Bel the next day and would have to find out ex- actly how he was going to handle this problem. The next day, May 8, Ragucci spoke to counsel and was advised to contact the ILA and speak to either Anthony Scotto or Anthony Anastasio, vice presidents, and enlist their suggestions on how to handle this intraunion problem. Ragucci and Anastasio had a history of personal contacts on labor problems which had arisen from time to time in the past. That morning Ragucci got Anastasio by phone. Anastasio, at the time, 30 was executive vice president of Local 1814, ILA, a local having jurisdiction in the Port of New York for an area other than Staten Island, a vice president of the ILA, vice president of its Atlantic Coast District, and elected at the last ILA convention to repre- sent Staten Island. While Anastasio testified in answer to a leading question that as an officer of the Atlantic Coast District he had a function in the administration of the labor agreement with the Association, the district has no role in the administration or enforcement of the contract terms under any step of the grievance machinery already briefly discussed and set forth at part XII of the agree- ment, the previous invocation of which by DeMayo had resulted in the pier side settlement of the same problem in October 1978. On this occasion, Ragucci acquainted Anastasio with the dilemma of the chief executive officer of the Local demanding he honor the results of the election for inter- drivers, gang labor, and so on. Yet, the Local had no practice or history guiding the selection of an election committee, only one election for shop steward having been held, in 1978, since their adoption and they and the record are silent as to the procedure for conducting such an election. A suggestion was also made by Respondent's counsel on cross-examination of DeMayo that the members' books were not checked for current paid- up status as a condition for voting in the election. Yet, no evidence was offered showing this was a concern of the executive board. Neither does the record contain any evidence that any list men were not members in good standing under the checkoff system. DeMayo testified that his authority to act arose out of the power pro- vided the president under art. XI, sec. l(e), to interpret its provisions, in- cluding the power under l(b) to appoint all committees, in the absence of any provision relating to interim shop stewards, and the immediacy of the problem which precluded time for consultation with the executive board. See also the general powers of the president itemized in 1(f) and, in particular, his responsibility under l(k) to settle all disputes between members and management; and enforce union rules, working conditions, and the provisions of the collective-bargaining agreement (with the aid of a shop steward, as noted in art. XIV, sec. 2). sa It is clear and Ragucci acknowledged that he was well aware of the internal dissension and factions within the Local which had now again been precipitated on Bel's election as interim steward. so Anastasio has since lost his union posts on conviction along with Scotto of Federal crimes of income tax evasion and receiving gratuities from employees. He, along with Scotto, is currently serving a multiple- year sentence after their appeals confirmed the trial convictions. im steward and the balance of the executive board de- manding he not recognize the election unauthorized by them and threatening a walkout, and asked for his opin- ion. Ragucci did not tell Anastasio that he had agreed to the election process as a resolution of a prior grievance and, again, on this occasion with DeMayo, or that he had agreed to recognize Bel. Anastasio first noted that the executive board is the supreme body of the Local (see art. XI, sec. 8(g), of the bylaws), but, on the other hand, there is such a thing as custom and practice on the waterfront. Anastasio added that he did not know that an election was needed or that any bylaws of a local called for an election, stated he did not know the Staten Island practice and asked Ragucci what the customs and practices were. Ragucci replied that in the past the shop steward selected a senior man on the roster to replace him for a couple of weeks. Again, Ragucci failed to men- tion the grievance settlement, or even the problems which had resulted in his reaffirmation of the election procedure. Anastasio said that he should do the same thing that had been done in the past. The General Counsel disputes this conversation, but I have no reason to doubt that such a conversation did take place. However, I also have little doubt, given the history of the relationship between Ragucci and Anasta- sio, that Ragucci had strong reason to believe before the call that Anastasio would support a decision by Re- spondent that avoided a work stoppage and left intact at the steward position a member of the prevailing faction within the Local at the expense of the president who was isolated on the board and who, on the word of Anasta- sio, was unwilling to speak with, or seek advice from, the established ruling group within the International in- cluding Anastasio himself. I also find unbelievable Anas- tasio's claim of ignorance about the Staten Island prac- tice, given his area of International responsibility, rela- tionship with Ragucci, and intimate knowledge of the in- ternal Local conflict. I conclude that Anastasio did not disclose his own predilections in the dispute which, if not made directly, were clearly inferable from his remarks. Even assuming Anastasio was playing a neutral role, Ra- gucci's failure on the record to show that he had ac- quainted Anastasio with his past and present role in the history of the dispute strengthens the conclusion also that Anastasio made his recommendation and became in- volved in a local dispute in which he had no official role without having been made aware of all of Respondent's input and responsibility. On May 8, 1979, Respondent's hiring agent at the center refused to select Bel for work as interim steward. As his own work gang was not scheduled for work that day, he was denied employment. During the succeeding 2-week period Bel only worked when his gang was as- signed. In his place, Respondent recognized DeRenzi as temporary shop steward, as it had in the past. Since May 8, 1979, Respondent has consistently failed and refused to recognize Bel as interim shop steward on any of the occasions that Motola has taken leave, in spite of Bel's placing Respondent on notice by letters of his intent to seek legal redress for the failure to recognize the results of the employees' election. On almost every 464 HOWLAND HOOK MARINE TERMINAL CORP. absence by Motola since May 1979, he selected DeRenzi who was recognized as full-time interim shop steward, but never Bel.3 t Then, at a local membership meeting in the fall of 1980, Motola advised that he was taking an ex- tended leave of absence because of illness and appointed DeRenzi to replace him. DeRenzi thus became de facto shop steward without benefit of election under the bylaws and continued to function as such on a full-time basis at least to the close of hearing.32 By this time, DeRenzi was also the Local president, having been elect- ed to that post in November 1979, on the expiration of DeMayo's 3-year term. He defeated DeMayo, who ran for a successor term, by 10 votes. This time DeMayo ran on a slate of insurgents, rather than independently, but only one candidate from the slate was elected. Since DeRenzi's election as president and succession to the position of shop steward, DeMayo, Antonelli, and Irwin have filed internal complaints with the ILA Atlan- tic District Council protesting DeRenzi's dual role and the failure to hold election for steward in violation of the Local's bylaws. Analysis and Conclusions The first question I will deal with is whether Respond- ent's recognition of DeRenzi as interim shop steward constitutes a form of unlawful assistance to the Local in violation of Section 8(a)(2) and (1) of the Act. I have already concluded that, based on the record considered as a whole, DeRenzi is a supervisor within the meaning of Section 2(11) of the Act and that, even after his assumption of duties as full-time shop steward and even after his election as president of the Local, he has continued to exercise supervisory responsibility as night tractor foreman on a regular, continuing basis. In Nassau and Suffolk Contractors, Association, Inc., 118 NLRB 174, 187 (1957), the Board found that the employ- ers there "were under a duty, we think, when confronted with a union negotiating committee which included their own agents, to protest the composition of the committee and to refuse to deal with it because it was tainted with an apparent employer interest." In that case, the Board found master mechanics were statutory supervisors (id. at fn. 16, pp. 178-179). This status respondent employer association had denied. Thus, contrary to Respondent's contention (p. 23 of its brief, the question of status was raised and determined adversely to Respondent. The master mechanics were members of the rank-and-file unit and the union, active in its affairs and subject to its rules. The Board, at 187, took particular note that, by virtue of their supervisory status, "[D]espite the large measure of control exercised over master mechanics by the Union, the mechanics remain in part agents of their employers with a resulting divided loyalty and interests." That con- flict of interest was actually evidenced on this record when DeRenzi, the very union agent clothed with re- s3 In September 1979, when Motola appointed a J. Margarella as inter- im steward and Bel protested in person and by letter, Ragucci wrote An- astasio again seeking advice as to which person Respondent should rec- ognize. Anastasio apparently did not reply in writing but again instructed Ragucci to follow custom and practice. s2 Motola indicated that an election would be held to replace himself permanently when his 3-year term was completed in May 1981. sponsibility under the local bylaws to report violations of union rules, contract, or working conditions to higher union agents and to present employee grievances under the contract, acted on behalf of Respondent Employer in threatening and enforcing employer discipline for alleged breaches by drivers of employer work rules.33 Indeed, various employees voiced their concerns about DeRen- zi's dual and conflicted roles to President DeMayo as early as 1978. As the Board noted in Nassau and Suffolk Contractors'Association, id. at 187: Employees have the right to be represented in collec- tive-bargaining negotiations by individuals who have a single-minded loyalty to their interests. Conversely, an employer is under a duty to refrain from any action which will interfere with that employee right and place him even in slight degree on both sides of the bargaining table. 34 Respondent nonetheless contends that since as found by the Board in Nassau and Suffolk Contractors, the master mechanic not only participated in negotiations on behalf of the employees but was also the union's shop steward on the job, inasmuch as the Board did not hinge its finding of unlawful assistance on the latter union role performed by a supervisor, no finding of violation may result here. Respondent reads too much into the Board's silence on the master mechanic's steward function in its analysis. A consistent line of cases all decided since Nassau and Suffolk Contractors makes clear that the Board's rationale in that case applies equally and without distinction to the role of a supervisor representing em- ployees in the handling of grievances. 3 5 Respondent argues that more recently in Narragansett Restaurant Corp., 243 NLRB 125 (1979), the Board, without comment, adopted Administrative Law Judge Irwin Kaplan's Decision including an analysis of the dual-role issue noting the Board's rejection of a per se ap- proach in the area of employer liability for its supervi- sor's participation in union affairs. Nothing said or decid- ed in that case conflicts with a finding of violation for such participation here. Among other factors, both the Administrative Law Judge and the Board relied heavily on the supervisor's authority to process grievances, a power of the steward which the contract between the ILA and Association explicitly recognizes and which the record shows was the steward's actual responsibility. sS To whom could tractor drivers complain if they believed the threats and other conduct engaged in by DeRenzi enforcing employer rules vio- lated their contractual rights? Even if such incidents or other related con- duct by DeRenzi in training or directing employee performance of ad- verse duties to employee rights arose while he was not acting as interim steward, prior to his assumption of the full time duties of steward in the fall of 1980, DeRenzi's status as regular interim steward would have had an inhibiting influence on the assertion of employee grievances. 34 In accord: Abilene Area Sheet Metal Contractors Association and Abi- lene Sheet Metal, Inc.. 236 NLRB 1652 (1978), modified on other grounds 619 F.2d 332 (5th Cir. 1980); Welsbach Electric Corporation, 236 NLRB 503 (1978). See also H. Rep. 245 on H.R. 3020. 80th Cong. Ist sess. 14 and Cong. Rec. Senate-May 12. 1947, reprinted in Leg. Hist. of the LMRA at 410 and 1496, respectively as ITTArctic Services Inc.. 238 NLRB 116 (1978); E.E. Co., Inc_. 171 NLRB 982 (1968); Dock Warehouse & Bottling Center Inc.., 169 NLRB 708, 714 (1968) 465 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When that duty was not fulfilled in 1977, the Local president was obliged to assume the steward's role, and, when the steward was absent during the 1977 strike, the president was compelled to seek an emergency replace- ment. Furthermore, as Nassau and Suffolk Contractors, supra, and later cases such as Schwark Incorporated, 229 NLRB 640, 641 (1977), cited by Administrative Law Judge Kaplan in Narragansett, supra, in support of the Board's rejection of a per se approach, make clear, once a supervisor has been found to have acted in a union rep- resentational role, whether in bargaining or in adminis- tering an existing agreement, that alone constitutes suffi- cient evidence of unlawful interference without any added requirement that the supervisor, e.g., be found also to be of a high level. The question of the nature of su- pervisor participation in union affairs and the level of his supervisory authority comes into play when the facts in- volve; e.g., supervisory participation in internal union af- fairs such as participation in union elections. 36 Turning next to Respondent's refusal to honor Bel's election as interim steward, the issue is posed whether the Company violated Section 8(a)(3) and (1) by failing and refusing to select Bel for employment as steward at the May 9, 1979, shape and thereafter because of Bel's protected activities or because of the union agents' re- quest that he not receive the designation as interim ste- ward. The evidence is persuasive that Bel's association with DeMayo and his participation in the election process sponsored by DeMayo were motivating factors in Re- spondent's decision ultimately not to hire him. While Re- spondent consistently sought to portray Ragucci as neu- tral and willing to honor any union selection of interim steward, the facts are otherwise. Ragucci himself recog- nized the internal problem the Union was facing; yet, in the face of strong internal opposition to DeMayo's selec- tion of interim stewards, he invariably refused to honor DeMayo's choices, often refusing to communicate with him about the matter. Thus, during the 1977 strike, Re- spondent refused to recognize Pavacic and instead recog- nized another Local member without DeMayo's knowl- edge or consent. Ragucci's exclusion of the Local's presi- dent from Respondent's premises is particularly striking as manifesting hostility toward the insurgent segment of the Local's membership. It is noteworthy that whereas Ragucci justified DeMayo's exclusion on the basis that DeMayo had threatened to close the facility down on more than one occasion, he justified his rejection of Bel and recognition of DeRenzi in May 1979 on the basis of the threat of a work stoppage made to him by DeRenzi and DeFazio. The latter threat was influential in con- vincing Ragucci to accede to the executive board mem- s3 While there is some suggestion in the record that DeMayo believed that his defeat for president by 10 votes in the 1979 election of Local officers was related to the presence of the head foreman, among other foremen, as watchers at the polls, and DeMayo criticized high-level su- pervisor participation at union meetings at which votes are cast openly, none of this testimony was developed and the complaint does not allege these items as employer participation in internal union affairs sufficient to constitute interference in violation of Sec. 8(aX2). See Nassau and Suffolk Contractors' Association, supra at 184, and Schwark Incorporated, supra at 641. Without their allegation or full litigation, I cannot make findings or conclusions as to them. bers' demand and was aired fully with Anastasio before Ragucci finally rejected Bel and recognized DeRenzi. Thus, Ragucci used the strike threat as a convenient device to justify conduct which suited Respondent's goal of maintaining as close and as cozy a relationship as pos- sible with the most senior and least aggressive or militant faction within the Local as represented by DeRenzi, De- Fazio, and Motola and of continuing a supervisor as in- terim steward. Ragucci's failure to advise Anastasio of his own role in encouraging and agreeing to the election route as the best means of resolving the Local's internal problems is also significant. Ragucci failed to follow through on his own commitments made on October 17, 1978, and reaf- firmed at DeMayo's urging on May 4, 1979, in spite of his ostensible willingness to recognize as relief steward any member selected by the men, and his belief that an election best satisfied that objective. Indeed, Ragucci personally verified the legitimacy of the vote on May 8, 1979. Even Ragucci's call to Anastasio represents not an appeal to a neutral third party but an effort to buttress the contrary decision already made after the pressure by DeRenzi and DeFazio had been applied earlier on May 8. Ragucci and Anastasio had a longstanding relationship which clearly antedated DeMayo's election as president. The inference is warranted that Ragucci was well aware of the distrust which existed between Anastasio and DeMayo. Ragucci was also well aware that Anastasio had no role in the administration of the contract which had already resulted in an agreement by him to recog- nize the election process. It is also apparent that the dele- gation from the executive board which approached Ra- gucci on May 8, 1979, shortly after the election results became known, made no objection to Bel's designation which related in any way to the Local's legitimate union objectives. The sum and substance of the objection were simply that the executive board members disapproved of the election and there is no evidence that DeRenzi or DeFazio relied on any bylaw provision in asserting their protest. While Respondent did not participate in the delibera- tion of the executive board on May 5, 1978, it is clear that the executive board members were hard pressed to justify their opposition to DeMayo's use of the election process to select a steward since it accords with the spirit if not the terms of the agreement arrived at on that occasion sustaining the Local president's authority to select an interim steward. There is also no evidence that Motola protested Bel's election to DeMayo or directly to Ragucci. Recall that it was DeRenzi, not Motola, who asserted his own right to succeed Motola on May 8, 1979. Ragucci was thus confronted with a naked claim manifesting another in the longstanding series of disputes between the local factions and premised on nothing more than hostility to DeMayo and his associates within the Local. In the end, Ragucci found it both expedient and convenient to go along with the sentiments expressed by the group spearheaded by DeRenzi and DeFazio. The fact that Ragucci then recognized DeRenzi as shop steward strengthens the conclusion of Respondent's 466 HOWLAND HOOK MARINE TERMINAL CORP. discriminatory motivation. As a supervisor and Respond- ent agent, DeRenzi could be expected to continue to place a damper on independent assertion by the rank and file of grievances or complaints and continue the com- fortable relationship which had existed between the Local's leadership and Respondent both before De- Mayo's election as president in 1976 and which contin- ued thereafter under pressure from the insurgent wing.37 Apart from the evidence that Respondent aided the Union in its discriminatory conduct, Respondent permit- ted Union Agents DeRenzi and DeFazio to impose their will without proper justification for such conduct, and thereby committed a violation of Section 8(a)(3) and (1). While "the mere acquiescence of an employer in a demand of a union is not unlawful encouragement per se . . . when the circumstances do not involve an objective of furthering, requiring, or conditioning employment on union membership as such, the illegality, if any, must be found in those actions by a union that impinge upon the employment relationship which are arbitrary, invidious, or irrelevant to legitimate union interests." Ashley, Hick- ham-Uhr Co., 210 NLRB 32 (1974). s8 I conclude that the union delegates were not pursuing a legitimate union objective in making their demand upon Ragucci. The ex- ecutive board's bare claim that the election violated the bylaws was not supported by any specific reference to a bylaw provision claimed to have been breached. Motola, and no one else, after the fact, relied on an asserted un- representative composition of the election committee. That claim has been dealt with in footnote 28, supra. While the executive board is the highest governing au- thority between membership meetings (bylaws, art. XI, sec. 8(g)), that authority alone appears insufficient to jus- tify the exercise of authority by almost all of its mem- bers, excluding the president, to set aside the actions of its president in fulfilling the obligations of his office to interpret the provisions of the bylaws, act as principal executive officer, settle all disputes with management, and enforce union rules, working conditions, and the agreement.3 9 As earlier noted, as well, the rump body of the executive board did not express any legitimate con- cerns relating to the procedures governing the election which was held or to the identity of the voters. Its only objection was to its exclusion from the process. Yet, it had earlier agreed to DeMayo's authority to select an in- terim steward, at the special May 5, 1978. meeting. Al- though DeMayo had apparently publicly renounced the election process at the November 14, 1978, membership meeting, when faced with the refusal of most, if not all, eligible members to accept designation as interim ste- a7 See 17' Arctic Servces, Inc., 238 NLRB lilb (1978). Unlike the facts in both Explo. Inc.. 235 NI.RB 918 (1978). and United States Postal Ser- vice, 254 NLRB 74 (1981), Respondent was here in a good position to contest the validity of the union agents' demand for appointment of De- Renzi instead of Bel and was well aware that in acceding to the agents' demand it was abetting their unlawful attempt to undermine DeMayo's standing and authority. se See cases cited in Capitol Trucking. Inc., 246 NL RB 135, 140 (1979). s9 To a limited extent, in spite of the sery narrow involvement of the Board in regulating internal union affairs, from time to time, as in the matter, sub judice, an administrative law judge may he compelled to con- strue a union's constitution and bylaws. See International Brotherhood of Teamsters General Drivers. Chauffeurs and Helpers Local Union No. 886 (Lee Way Motor Freight. Inc.). 229 NLRB 832 (1977). ward, DeMayo had no legitimate alternative but to revert to the procedure Ragucci and the contract Board adjustor had both endorsed as the method most in accord with the contract language recognizing the right of employees to a representative of their own choosing. Neither was the rejection of DeMayo's course, on May 8, 1979, by the rump executive board motivated by any concern related to effective processing of grievances of enforcement of union work rules.4 0 Thus, I conclude that Respondent's acceptance of the union agents' demand on May 8, 1979, also violated the Act because the demand for the nonhire of Bel and recognition of DeRenzi was arbitrary and did not further any legitimate union interest. Finally, in view of the conclusions already made, it is clear that Respondent's refusal and failure to grant rec- ognition to Bel as the temporary shop steward violated Section 8(a)(5) and (1) of the Act. As the Union's objec- tions to Bel's selection by the membership were neither free of the taint of a discriminatory violation, nor in pur- suit of a legitimate union objective, and as Bel's election most nearly satisfied the Union's contractual right and the Union's own bylaw provision governing the designa- tion of a shop steward (by election), it follows that Re- spondent's failure and refusal to recognize Bel as the des- ignated representative breached its bargaining obligation with respect to administration of the agreement.4 Al- though not raised as an issue by Respondent, I nonethe- less take occasion to note that the fact that Bel, an indi- vidual, rather than the Union, filed the refusal-to-bargain charge does not provide any basis to dismiss or to refrain from disposing of the charge on its merits. It is clear that the Local as presently constituted would refrain from pressing Bel's claim to status as interim steward. Inas- much as no valid union position is undercut or its discre- tion affected by the litigation of the charge, but, on the other hand, the rights and interests of all union members as employees are furthered by it, there is no occasion to strictly apply the principle here that only the lawfully designated collective-bargaining representative of all em- ployees in the unit may raise or pursue an alleged failure to recognize or deal with it or its agents. The Local's conflict of interest in this proceeding is best illustrated by its withdrawal of the charge relating to Respondent's 1977 refusal to recognize the president or steward.4 2 Accordingly, there being no impediment to Bel's seek- ing relief on behalf of all unit employees, I conclude that, in addition to the other violations found, Respond- ent has also unlawfully refused to bargain with the Local in violation of Section 8(aX5) and (1) of the Act. 40 The important and dual status of the union steward is discussed in depth in Capitol Trucking Inc., 246 NLRB 135, 139-141 (1979). 41 Native Textiles, 246 NLRB 228 (1979); Indianapolis NewspaperM. Inc., 224 NLRB 1490 (1976). 42 See report issued by the Gemeral Counsel covering the first quarter of 1980, 104 LRR 215 at 217-218, where, in the context of deciding whether to issue a complaint on an 8(a)(5) charge alleging a violation of the duty to furnish information relevant to a grievance filed by an indi- vidual, the General Counsel cites the relevant leading cases and analyzes the circumstances which might justify issuing complaint on an individ- ual's 8(aX5) charge. 467 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent Howland Hook Marine Terminal Cor- poration is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 920 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Since May 8, 1979, by recognizing and dealing with Pasquale DeRenzi, its supervisor, as interim shop ste- ward for Local 920 in the absence of the regular shop steward from work, Respondent has violated Section 8(a)(2) and (1) of the Act. 4. Since May 8, 1979, by failing and refusing to recog- nize and hire Ronald Bel as the interim shop steward for Local 920 and instead hiring and recognizing its supervi- sor, Pasquale DeRenzi, as such interim shop steward, during the absence of the regular shop steward from work, Respondent has violated Section 8(a)(3) and (1) of the Act. 5. Since May 8, 1979, by failing and refusing to recog- nize Ronald Bel as Local 920's duly designated interim shop steward in the absence from work of the regular shop steward, and by failing and refusing to deal with Bel as interim shop steward with respect to grievances and terms and conditions of employment, Respondent has violated Section 8(a)(5) and (1) of the Act. 6. The appropriate bargaining unit is: All longshoremen, including deckmen, holdmen, dockmen, sorters, drivers, terminal laborers and ship laborers, exclusive of office clericals, guards and su- pervisors as defined in the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom, and take certain af- firmative action designed to effectuate the policies of the Act. Having concluded that Respondent unlawfully recog- nized and has continued to deal with its supervisor, Pas- quale DeRenzi, as interim shop steward, thereby interfer- ing with the administration of Local 920 and contribut- ing support to it, I recommend that Respondent cease and desist from recognizing or dealing with Pasquale DeRenzi, or any other person,'a as shop steward or I' See Narragansett Restaurant Corp., supra; ITT Arctic Services Inc., 238 NLRB 116, 125 (1978); Abilene Area Sheet Metal Contractors Associ- ation., 236 NLRB 1652 (1978), modified on other grounds 619 F.2d 332 (5th Cir. 1979). other agent or officer of Local 9204 4 in negotiating or administering any collective-bargaining agreement or in handling employee grievances, while that person is its su- pervisor.4" Having found that Respondent failed and refused to recognize and to provide employment for Ronald Bel as interim shop steward in violation of Section 8(a)(3) and (I) of the Act, I recommend that, in order to restore the status quo ante as far as possible, Respondent be ordered to recognize and employ Bel as interim shop steward, with all rights and privileges enjoyed in such position, on those occasions that the regular shop steward is unavail- able and absent from employment. 46 I shall also recom- mend that Respondent be ordered to make Bel whole for any monetary losses incurred as a result of its failure and refusal to recognize Bel as interim shop steward since May 9, 1979, in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I recommend that Respondent be ordered to preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due. I shall also recommend that Respondent be ordered to meet and bargain, upon request, with Local 920's desig- nated representatives, including Ronald Bel, interim shop steward, for negotiating or administering any collective- bargaining agreement or for processing grievances. [Recommended Order omitted from publication.] 44 Recall that DeRenzi since his designation as interim shop steward became regular shop steward and then president of the Local. I may le- gitimately take account of these facts, to which Respondent did not object, in fashioning an appropriate remedial order. 4' This relief undoubtedly affects the interests of Local 920. The Gen- eral Counsel failed to join Local 920 as a party other than as a charging party, which status was terminated at the opening of the hearing. By virtue of an order I issued on November 13, 1981, and caused to be served by certified mail on Local 920, among other parties, and to which Local 920 has not responded, Local 920 has effectively waived its right to participate in the instant proceeding and shall be deemed bound by this remedial order. In that order, Local 920 was provided with an op- portunity to participate as a party and granted leave to file a motion to intervene as a party and to seek such further hearing as it might request, and was put on notice that its failure to do so would be deemed a deci- sion that it had no interest in participating as a party and that it had waived its right to such participation. See Sec. 102.8 of the Board's Rules and Regulations, Series 8, as amended, Parker Brothers and Company. Inc., 101 NLRB 872 (1952), enfd. as modified 209 F.2d 278 (5th Cir. 1954), and Consolidated Edison Company of New York Inc., 305 U.S. 197, 231 (1962), cited at fn. I, p. 2, of my order. This order has been received in evidence as ALI Exh. 3. 46 See Local Union No. 204, Sheet Metal Workers' International Associ- ation. AFL-CIO (The Majestic Company), 246 NLRB 318, 319, fn. 9 (1979). 468