Longshoremen's Local 10

I)DECISIONS OF NA1ONAI LABOR RELATIONS BOARD International Longshoremen's and Warehousemen's Union, Local No. 10 and Pacific Maritime As- sociation. Case 20-CB-4997 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 14, 1980, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the Charging Party 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 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, International Longshoremen's and Warehousemen's Union, Local No. 10, its officers, agents, and representa- tives, shall take the action set forth in the said rec- ommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. 2 MEMBER JENKINS, dissenting: I disagree with my colleagues' adoption of the ruling by the Administrative Law Judge that the elimination of racial discrimination in the selection of walking bosses is irrelevant to the disposition of this case. This ruling is not in accord with our na- tional labor policy, is not required by Section 8(b)(1)(B) of the Act, and denies the Respondent Union a fair hearing on the violation with which it is charged. The right of an employer to select its own representatives, protected by Section i Member Penello agrees with the Administrative L.asw Judge's finding that International Organization of Mfasters. Mates and Pilots (.Ne port Tankers Corporation), 233 NLRB 245 (1977), order vacated and remanded Newport Tankers Corporation v N.L.R B., 575 F 2d 477 (4th Cir. 1978), is readily distinguishable from the instant case Member Peiello further notes that he continues to adhere to his dissenting opinion in ,ewport Tankers. 2 We shall, in accord with standard Board remedial practice, substitute a "Notice to Employees and Members" in lieu of he "Nolice to IEmploy- ees" recommended by the Administratise Law Judge 8(b)(l)(B), does not include the right to discrimi- nate racially in such selection. Evidence bearing on the discriminatory selection of walking bosses and the Union's effort to elimi- nate such discrimination is material, and necessary, to a determination of the motive for Respondent's action and whether such action violated Section 8(b)(1)(B) as alleged. See my dissenting opinion in Laborers' International Union of North America, AFL-CIO, Local 478 (International Builders of Flor- ida, Inc.), 204 NLRB 357 (1973). In view of the specific provisions prohibiting discrimination of any kind in the parties' contract, the Union has a legal right as a statutory representative to insure that discriminatory practices are not established or continued and that its duty to represent fairly and in good faith the interests of minorities within the unit is not impaired by the employer or another union. Westinghouse Electric Corporation, 239 NLRB 106 (1978). APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAIl LABOR RELATIONS BOARD An Agency of the United States Government WE WIll. NOT restrain or coerce Pacific Maritime Association (PMA), or any of its em- ployer-members, in the selection or retention of their representatives for the purpose of col- lective bargaining or the adjustment of griev- ances. WE WILL NOT engage in work stoppages or threaten to engage in work stoppages for the purpose of restraining or coercing PMA, or any of it employer-members, in the selection of their representatives for the purpose of collec- tive bargaining and the adjustment of griev- ances. WE WILL notify PMA and its employer- members that the Union has no objection to the employment of Clarence Small, William Brown, and Haus Blase as walking bosses. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL No. 10 DECISION STIAEMENT OF THE CASE Russk.I .L. STEVENS, Administrative Law Judge: This case was heard before me in San Francisco, California, 254 NLRB No. 65 540 LONGSHOREMEN'S LOCAL 10 on June 25, 1980.1 The complaint issued February 6, 1980, is based on a charge filed on January 3, 1980, and a first amended charge filed on January 23, 1980, by Pacif- ic Maritime Association (herein called PMA). The com- plaint alleges that International Longshoremen's and Warehousemen's Union, Local No. 10 (herin called Re- spondent or the Union), violated Section 8(b)(1)(B) of the National Labor Relations Act, as amended (herein called the Act). All parties were given full opportunity to participate. to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, the Union, and the Charging Party. Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. JURISDICTION Pacific Maritime Association, with a place of business in San Francisco, California, is and has been, at all times material herein, an organization comprised of employers engaged in the movement of cargo on oceangoing ves- sels to and from the Pacific Coast ports of the United States, and which exists for the purpose, inter a/ha, of representing its employer-members in negotiating and ad- ministering collective-bargaining agreements with var- ious labor organizations, including Respondent. At all times material herein, Marine Terminals Corpo- ration (herein called Marine); Crescent Wharf and Ware- house Company (herein called Crescent); and Matson Terminals, Inc. (herein called Matson), have been, and now are, employer-members of PMA. During the calendar year ending December 31, 1979, the employer-members of PMA, in the course and con- duct of their business operations, derived gross revenues in excess of $50,000 for the transportation of freight and commodities from the State of California directly to points outside the State of California. I find that Marine, Crescent, and Matson, each, are now, and at all times material herein have been, employ- ers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Longshoremen's and Warehousemen's Union, Local No. 10, is, and at all times material herein has been, a labor organization within the meaning of Sec- tion 2(5) of the Act. II. THE AI.LEGED UNFAIR ABOR PRACTICI-S A. Background2 PMA, on behalf of its employer-members, and the In- ternational Longshoremen's and Warehousemen's Union (herein called ILWU), on behalf of itself and its locals in I All dates herein are within I'79, unlcs slated to be olherisee 2 This background summary is based on credited testimony. sipull- tions of parties, and evidence nolt l dtlpule California, Oregon, and Washington, are parties to an agreement effective July 1, 1978, to July 1, 1981. The contract is titled Pacific Coast Longshore Contract Doc- ument (herein called PCLCD). Section 11.1 of the agree- ment states "There shail be no strike, lockout or work stoppage for the life of this agreement." Respondent is one of the ILWU locals subject to PCLCD. ILWU Local 91, also encompassed by PCLCD, is the exclusive bargaining representative for all registered walking bosses employed by PMA's employer-members in San Francisco and Oakland, California. PMA and Local 91 (as well as some other locals) are parties to an agreement for the same term as PCLCD. PMA and Local 91 are parties to a supplementary agreement, relevant portions of which are as follows: SECTION 2. ADDING TO LIST OF REGIS- TERED WALKING BOSSES 2.1 A proposal by either the Employers or the Union to increase the number of men on the active registered list of walking bosses in each of the three areas (San Francisco, Stockton and Sacramento) shall be submitted to the Joint Labor Relations Committee for consideration. 2.2 If agreement is reached by the Joint Labor Relations Committee on the number of men to add they shall then be selected by the Employers. Prior to reaching a final determination on the selection of men, the Employers agree to review with the Union the qualifications of men proposed for addition to the registered list. 2.21. When a company loses the services of any of their steadily employed walking bosses as a result of death, retirement, or leaving the industry, the company shall concurrently have the right to select and employ replacements for such men. 2.22 If agreement cannot be reached by the Joint Labor Relations Committee on adding of men to the registered list, the matter can then be referred to the Area Arbitrator for determination through the contract grievance machinery. Walking bosses are supervisory representatives of em- ployer-members of PMA in the performance of cargo handling and stevedoring activities covered by PCLCD. They have authority to supervise, place, or discharge men, and direct the work of longshoremen. They partici- pate in grievance proceedings involving longshoremen who fail to work as directed, or otherwise misbehave on the job. Counsel stipulated that walking bosses are super- visors within the meaning of the Act, and are representa- tives of employers for purposes of collective bargaining or adjustment of grievances within the meaning of Sec- tion 8(b)(1)(B) of the Act. Three walking bosses are in- volved in this controversy, i.e., Clarence Small,3 William Brown, and Haus Blase. All three were named walking bosses December 29, 1979. Approximately in 1964, and occasionally since 1973, Local 10 has contended that there have been discrimina- :' IlilXhid ii.1, ilre referrled Io herein Iheir Sl ilatrnle, 541 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, nepotism, and favoritism in the selection and regis- tration by PMA of walking bosses. So far as the record shows, such allegations have not been the subject of find- ings or decisions by any arbitrator, administrative law judge, or court. The subject has been discussed, howev- er, between PMA and Local 10. Respondent contends that it has received complaints concerning such allega- tions, but that matter was not before the Administrative Law Judge for hearing in this case, and Respondent's offer of evidence to support its allegations was rejected as being irrelevant to the issues herein. 4 In early December 1979, PMA selected Small, Brown, and Blase to become walking bosses, and Local 91 ob- jected. The dispute was referred to an arbitrator, pursu- ant to the collective-bargaining agreement between PMA and Local 91. Local 91 contended that, although the three men were qualified to be walking bosses, they did not have "clearance from Local 10." The matter was heard December 14, and by decision dated December 21, the arbitrator, Hans P. Schnitler, ordered that the three men should be registered as walking bosses. They were registered, with the registrations to be effective Decem- ber 29. In the late afternoon of December 28, Larry Wing, then president of Local 10, called Craig McFate, PMA's assistant manager, and asked for a meeting the following morning, due to a problem with Small, one of the newly registered walking bosses. McFate relayed that message to James Edwards, manager of the northern California area of PMA. The following morning at approximately 7:50, Edwards, McFate, and Vincent La Maestra, PMA's labor relations assistant, met with Wing, Local 10's vice president, Willie Zenn, Local 10's business agent, Andrew Dulaney, secretary-treasurer, George Kaye, and relief business agent, Lawrence Thibeaux. Wing and Kaye said the Union "had a problem with the selection of the three walking bosses," and that, in their opinion, "the men would not work with Mr. Small on that day." Small had been scheduled to work that day as a walking boss. Edwards asked what section of the contract was in- volved, and Wing and Kaye replied that the dispute was not covered by the contract. However, they said, they felt Local 10 should have some "input" in the selection of walking bosses, and they believed that, in the past, there had been favoritism, nepotism, and discrimination in the selection of walking bosses. At approximately 8 a.m., Small attempted to start work with the longshore- men who had been assigned to him, but the men refused to work, as did 10 or 12 other longshoremen on a related operation involving the same ship. The other 10 or 12 had been assigned to another walking boss. PMA offi- cials then called an area arbitrator on the telephone, and he came to the area to arbitrate the matter on the job. The union representatives refused to participate in the ar- bitration. After an ex parte hearing, the arbitrator found that Local 10 was in violation of the contract by causing a work stoppage. Subsequently, the arbitrator reduced his decision to writing. The award never was appealed. The arbitrator then attempted to call Local 10 officials 4 Laborers' International Union of North .merica, AFL-CIO, Local 478 (International Builders of Florida. Inc.), 204 NLRB 357 (1973). enfd. 503 F.2d 192 (D.C.Cir. 1974). on the telephone, but was unable to reach them. The ar- bitrator then called the Union's chief dispatcher at the union hall, and asked that he send new men to the job. PMA later was informed that the jobs had been posted, but that no men would take the jobs. On January 2-6, Local 10 caused work stoppage on 11 separate occasions. The details of those stoppages were almost the same as the stoppage of December 29. In each instance, union officials appeared when Small, Brown, or Blase were to act as walking bosses; those officials talked with the longshoremen, who then refused to work; arbi- tration was requested by PMA representatives, but the Union failed or refused to participate in arbitration pro- ceedings; ex parte arbitrations were held, and the award was in favor of PMA; new longshoremen were requested by PMA, but no one would accept the jobs. In some in- stances, there were slight differences in the chain of events, but those differences are irrelevant-the pattern of conduct always was the same.5 On January 6 the dispute was referred for coast arbi- tration and subsequently, the coast arbitrator, Sam Kagel, found that the arbitration decisions of the area ar- bitrator were proper. Kagel directed Respondent to cease and desist in its illegal work stoppages, and in its noncompliance with arbitration awards. B. Contentions of the Parties The General Counsel contends that the work stop- pages constituted coercion of PMA in the latter's selec- tion of its bargaining representatives, in violation of Sec- tion 8(b)(1)(B) of the Act, and that Respondent's motive in causing the stoppages is immaterial. Respondent's attorney stated Respondent's contentions at the hearing: And the specific demand which Local 10 has made is that PMA negotiate with it and Local 91- both unions having an interest in the matter-some set of non-discriminatory objective criteria which would comply with title seven requirements. And which would also fulfill Local 10's obligations under the civil rights laws to take affirmative action in its role as collective bargaining agent. And the dispute over the three walking bosses who we'll hear more about-was not aimed at forc- ing the employer to discharge any particular indi- vidual or to appoint any particular individual but merely a refusal by Local 10 to recognize such pro- motions until guidelines had been adopted. C. Nature of the Work Stoppages Section 8(b)(l)(B) of the Act provides: It shall be an unfair labor practice for a labor orga- nization or its agents- (I) to restrain or coerce . . . Testimony and evidence cover all work stoppages, and resultant events. in detail. 542 LONGSHOREMEN'S LOCAL 10 (B) an employer in the selection of his representa- tives for the purposes of collective bargaining or the adjustment of grievances. It is noted at the outset, that this case does not involve the theory of concerted activity. The right to engage in such activity is protected by the Act, and decisions and opinions concerning the Act. What is involved, is a spe- cific prohibition in the Act of a union restraining or co- ercing an employer in its selection of bargaining repre- sentatives. In Laborers' Local 478,6 the Board held that the right to strike or engage in concerted activity does not include the right to dictate to an employer that it select a par- ticular supervisor who would have the power to adjust grievances. 7 Subsequently, the Board decided in International Orga- nization of Masters, Mates and Pilots8 that a union's pick- eting a vessel to compel the addition of another officer to the ship's complement did not violate Section 8(b)(1)(B), since the actual selection of the new officers would be left solely in the hands of the employer. After reviewing some of the legislative history of the Act, the Board stated: As is evidenced from the legislative history, Con- gress enacted Section 8(b)(1)(B) to protect an em- ployer from a union which might seek to impose its will on the employer by dictating whom it should or should not select as its collective-bargaining repre- sentative or grievance adjuster. The Board then continued: MMP's conduct herein does not diminish in any way the Employer's unfettered right to select the representative of its choice. While concededly the Employer might be forced to hire an additional third mate, the choice as to who that third mate shall be is totally within its discretion and control. There is nothing in the record evidence to indicate that MMP sought to have one of its own members selected as the additional third mate. Indeed, in light of the Employer's current collective-bargain- ing agreement with MEBA covering all deck offi- cers, we doubt that the Employer could have se- lected another third mate from among MMP's members or that MMP realistically expected the Employer to do so. The Union here seeks to bring itself within the protec- tion of International Organization of Masters, Mates and Pilots, and similar cases, by contending that it was not seeking the discharge or demotion of Brown, Blase, and Small, nor was it seeking the selection of any particular person as walking boss. However, that argument ignores ' Laborers International Union of North America, AFL-CIO, Local 478 (International Builders of Florida), supra. 7 To the same effect, see Operating Engineers. Local Union Vo. 3 of the International Union of Operating Engineers. AFL-CIO (Redi-Mir Products, Inc., d/b/a Visalia Redi-Mix). 219 NLRIH 531 (1975) International Organlzation of Masters. Mates and Pilots ('ewpor IanA- ers Corporation), 233 NLRB 245 (1977). the record. It may well be, as argued by the Union, that on one or more occasions the men refused to work for all walking bosses on a particular job, and further, that the Union never named desired replacements for the three walking bosses, nor named them as targets for dis- charge. However, those matters do not alter the nature of the stoppages: (I) When Wing called on the telephone December 28 to ask for a meeting with PMA, he named Small as a reason for the "problem." (2) Each work stop- page was directed specifically to Brown, Blase, or Small. (3) No work stoppage was directed to any other walking boss. (4) The Union admittedly wanted to be given the right of "input" into the selection of walking bosses, and was not given that right so far as Brown, Blase, and Small were concerned. Only those three were the targets of work stoppages. (5) This controversy dates from 1963, yet on no occasion did the selection of walking bosses result in work stoppages, until Brown, Blase, and Small were selected. Local 91 represents walking bosses. Local 10 has no authority over walking bosses, and is given no contrac- tual authority to play any role in their selection or ad- ministration. The fact that work stoppages restrain and coerce requires no citation. It is clear from the foregoing, and found, that Respon- dent sought, through unauthorized work stoppages, to force PMA to forgo the services of Brown, Blase, and Small as walking bosses, in violation of the Act.9 Further evidence of the illegal nature of the Union's work stoppages, is the mechanism it attempted to force on PMA. The Union seeks "input" into the selection process for walking bosses, and wants a "pool" of poten- tial selectees that it has agreed to, under criteria for qualification that the Union would help establish. The Union complains of discrimination, nepotism, and favorit- ism, which are conclusive allegations, subject to subjec- tive considerations. PCLCD has specific provisions against discrimination of any kind,t ° and PMA and Local 91 are bound by those provisions. Neither PMA nor Local 91 has been found in contravention of those provisions, so far as the record shows. In any event, PMA is the employer, and has sole control over the se- lection process for walking bosses, subject only to the provisions of its contract with Local 91. Clearly, what the Union wants is a process that, in the Board's lan- guage, would "diminish . . . the Employer's unfettered right to select the representative of its choice."" If given what it wants, the Union would play a role in es- tablishing criteria for employees who would constitute the "pool" from which walking bosses would be select- ed. Those criteria would reflect what the Union thinks is discrimination, nepotism, and favoritism. In other words, the Union wants to substitute its judgment for, or add it to, that of PMA, in selecting walking bosses. Picketing to effect such an intrusion into PMA's prerogatives, is contrary to the Act.'2 It may well be that, if the Union u Lahrers Local 478, upra. In Sec 13. p 75, and addendum, p. 185 International Organization of A1Mastvrs. .ats and Pdotm. supra " Ilorida Power light C(a Internaional Brotherhood of Electrical R4orAcri, l.ocal 641. er a. 417 S 79(), 803 (1974) See also International Continued 543 I).ECISIONS OF NATIONAL. L.ABOR RELATIONS BOARD took part in establishing criteria, it would be only a part, rather than exclusive control, of criteria. However, that part inevitably would impinge on the right of PMA to exercise control over its representatives in an unfettered manner. It is just such a situation that Section 8(b)(l)(B) was enacted to protect against. The Union's contention that its actions are justified because of its favorable mo- tives is contrary to controlling law. The Union's motives, however noteworthy, are irrelevant. t3 Respondent also argues that what it seeks is participa- tion in establishing criteria for promotion, which, it con- tends, is a legitimate subject for bargaining. However, that argument is similar to the argument concerning dis- crimination, and it is without merit for the same reasons, i.e., the sole issue here is whether or not Section 8(b)(1)(B) has been violated; it is not whether the Union may have good reason for wanting to participate in se- lection of walking foremen, which selection under the Act is vested exclusively in PMA. IV. Ilk IEFFECI OF THEI UNFAIR LABOR PRACTICF.S UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(b)(1)(B) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and take certain affirmative actions designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and the entire record, I make the following: CONCLUSIONS OF LAW I. Marine Terminals Corporation, Crescent Wharf and Warehouse Company, and Matson Terminals, Inc., are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent, International Longshoremen's and Warehousemen's Union, Local No. 10, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. By its work stoppages, as found above, Respondent, International Longshoremen's and Warehousemen's Typographical Union Leo:al 38. AFL-CIO and lnternational 'ypographical Union Local 165, AFIL-CIO and Scale C'ommittee v N.L.R.B.. 278 F 2d (Ist Cir. 196)) 1' Laborers' Ixwal 4 78, upra. See also Silver Bar local Union No Y62, International Brotherhood of Pulp. Sulphite and Paper Mill Werkrs ( Alaska Lumber and Pulp Co.. Inc.), 198 NL.RH 751 (1972) Local 333. United Marine Division I .I...,.4FL-C10 (Morania Oil lankir. Inc.l, 233 N.RB 387 (1977) Cf IEmporium C(apweli C, \v. I4'e',rn Addilion (ornurii Organization. e t. 421 U.SJ 510 (1975) Union, Local No. 10, has engaged in unfair labor prac- tices in violation of Section 8(b)(l)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The Respondent, International Longshoremen's and Warehousemen's Union, Local No. 10, San Francisco, California, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Restraining and coercing PMA or any of its em- ployer-members, in the selection or retention of their representatives for the purpose of collective bargaining or the adjustment of grievances. (b) Engaging in work stoppages or threatening to engage in work stoppages for the purpose of restraining or coercing PMA or any of its employer-members, in the selection of their representatives for the purpose of col- lective bargaining and adjustment of grievances. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Notify PMA and its employer-members, that tne Union has no objection to the employment of Clarence Small, William Brown, and Haus Blase as walking bosses. (b) Post at its San Francisco, California, worksite, and its principal office, copies of the attached notice marked "Appendix. ""' Copies of said notice on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (c) Furnish to said Regional Director copies of the aforementioned notice for posting by PMA, that Compa- ny willing, at the work stoppage premises. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 14 In the event no exceptionls are filed as provided by Sec 102 46 of the Rules ad Regulations of the National Labor Relations Board, the findinlgs, conclusions, ad recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings. conclusions, and Order and all objections thereto shall bc deemed aived for all purposes. In the evecin that this ()rder is enforced by a Judgment of a United States Court of Appeals, the ords in the noice reading "Posted by Order of the National l.abor Relations Board" shall read "'Posted Pursu- .ant to ai Judgmenlt of the United States Court of Appeals Enforcing an ()rder if the Natilonal Labor Relations Board " 544