International Longshormens' Association, Local No. 1408, Afl-Cio (Jacksonville Container Serv-Ice, Inc.)

644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Longshoremen's Association, Local No. 1408, AFL-CIO (Jacksonville Container Serv- ice, Inc.) and Robert E. Smith . Case 12-CB- 2842 8 September 1987 DECISION AND ORDER By MEMBERS JOHANSEN, BABSON, AND STEPHENS On 2 February 1987 Administrative Law Judge J. Pargen Robertson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions, 2 to modify the remedy's and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, International Longshoremen's Association, Local No. 1408, AFL-CIO, Jacksonville, Florida, its officers, agents, and representatives , shall take the action set forth in the Order. i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings 2 In agreeing with the judge that the Respondent violated Sec. 8(b)(2) of the Act, we rely on such cases as Bricklayers Local 7 (Masonry Build- ers), 224 NLRB 206 (1976), enfd 563 F 2d 977 (9th Cir 1977), Laborers Local 576 (Arthur B. Myr Sheet Metal), 267 NLRB 632 (1983), enfd per curiam 754 F 2d 677 (6th Cir 1985) We find it unnecessary to rely on, or decide whether we would adhere to, Glaziers Local 558 (PPG Industries), 271 NLRB 583 (1984), enf denied 787 F.2d 1406 (10th Cir 1986) (finding inappropriate, on the specific facts of the case, the application of the pre- sumption that a union-procured discharge for reasons other than nonpay- ment of dues under a valid union-security clause unlawfully encourages union membership), which was cited by the judge 3 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) Peter J. Salm, for the General Counsel. Lacy Mahon Jr., Esq., for the Respondent. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. This case was heard in Jacksonville, Florida, on 19 No- vember 1986. The complaint, which issued on 25 August 1986, was amended at the hearing. In its answer Re- spondent admitted that the charge was filed and served on it on 9 May 1986; that the Employer, Jacksonville Container Service, Inc., is a Florida corporation with an office and place of business in Jacksonville, Florida, where it has been engaged in the business of repairing containers and chassis for shipping companies; that Na- thaniel Clark has served in the position of business agent and has been an agent of Respondent within the meaning of Section 2(13) of the Act at times material; that Re- spondent is and has been recognized by the Employer as the bargaining representative for certain employees of the Employer; Respondent and the Employer are parties to a multiemployer collective-bargaining agreement that contains an exclusive hiring hall provision, and that Re- spondent referred Robert E. Smith to employment with the Employer about 7 April 1986. During the hearing the General Counsel moved to amend, and Respondent opposed, its motion to amend paragraph 2(b) of the com- plaint to allege "during the 12 month period ending Sep- tember 30, 1986, the Employer, in the course and con- duct of its business operations, described above, provided services valued in excess of $50,000 for customers within the State of Florida, which meet a standard for assertion of the Board's jurisdiction other than solely indirect." Prior to its motion to amend, the General Counsel's complaint allegation was limited to one customer, i.e., Puerto Rican Marine. Although counsel for Respondent objected to the General Counsel's motion to amend on the basis of lack of notice, Respondent admitted that the General Counsel had delivered what "was possible .. . would be a proposed amendment" during the week prior to the hearing. I granted the General Counsel's motion to amend. The Employer's owner, Christopher Register, testified that some of the Employer's largest customers include Transamerica, Puerto Rican Marine, Carolina Shipping, and Venezuela Lines, and that during this 12-month period ending 30 September 1986, the Employer did around $200,000 in business with those four companies. Register testified that the Employer's business during that 12-month period with Puerto Rican Marine totaled $27,000; and that its business during the same period with Transamerica totaled about $102,000. Register testi- fied that Puerto Rican Marine is engaged in the business of shipping freight between Florida and Puerto Rico. Transamerica is engaged in the business of leasing trailers to different companies; Carolina Shipping is a shipping company that ships freight from Jacksonville to Venezu- ela, and Venezuela Lines is a shipping company that ships freight between Venezuela and Jacksonville, Flori- da. On a motion by the General Counsel I took notice of two decisions of the Board, in which they found Puerto Rican Marine meets the standard for assertion of the Board's jurisdiction (Longshoremen ILA Local 1408 285 NLRB No. 87 LONGSHOREMEN ILA LOCAL 1408 (JACKSONVILLE CONTAINER) (Puerto Rico Marine), 245 NLRB 1320, 1321 (1979); and Puerto Rican Marine Management, 242 NLRB 181 (1979)). Additionally, pursuant to a motion from the General Counsel the record contains pages from Moody's Bank & Financial Manual showing that during 1985 Transamerica, a Delaware corporation with offices in California, and with domestic and foreign operations, had profits in excess of $570 million of which its equip- ment leasing section had profits of $25 million. Among other things, Transamerica leased 286 ,000 20-foot con- tainers from 292 depots located worldwide and some 38,200 piggyback trailers to railroads throughout the United States. In view of the above evidence it is clear, and I find, that during the 12-month period ending 30 September 1986 the Employer in the course and conduct of its business operations provided services valued in excess of $50,000 for employers within the State of Flori- da, which meet a standard for assertion of the Board's jurisdiction other than solely indirect . In view of that conclusion I[ find that the Employer is now , and has been at all times material, an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. 1. THE ALLEGED UNFAIR LABOR PRACTICES This matter involves allegations that the Respondent illegally caused the layoff of Robert E. Smith on 28 April 1986. During 1984 and 1985 Robert Smith was occasionally referred to work for the Employer. Smith testified that in 1984 he met with the Employer's owner, Christopher Register, and Respondent's business agent at that time, Ernest Johnson. Register told Johnson that Smith was qualified to work and Johnson said Smith could work. In 1984 Smith worked for the Employer for 45 days. Again, in 1985, Smith worked for the Employer for about 45 days. After working for the Employer in 1985, Smith was laid off in October. Smith contacted Respondent's busi- ness agent, Nathaniel Clark, and Clark referred Smith to a job with Puerto Rican Marine. Smith worked at the Puerto Rican Marine job until 23 November 1985. On 4 April 1986 Smith was called by Respondent and referred to another job with Puerto Rican Marine. Smith worked at Puerto Rican Marine on 4 and 5 April 1986.1 1 Respondent, in its brief, argues that Robert Smith was referred to work with Puerto Rican Marine on 4 April and that whenever employees are referred they are quaranteed 40 hour's work Through that conten- tion Respondent advances the additional argument that Robert Smith was not available to work for the Employer on 7 April due to his prior refer- ral to Puerto Rican Marine The record offers no factual support for Respondent's argument The record shows that neither Robert Smith nor Puerto Rican Marine was under the impression that Smith was referred to work more than 1 day, 4 April Smith did apply for overtime with Puerto Rican Marine and be- cause of that he also worked on 5 April Additionally, there is no evidence showing that Smith was not avail- able to work for the Employer on 7 April Nathaniel Clark referred Smith to Puerto Rican Marine on 4 April Nevertheless, when Christo- pher Register mentioned that Robert Smith was available to work for him on 7 April, Clark said nothing to show that he thought Smith was unavailable 645 According to testimony of Christopher Register and Robert, Smith, Register phoned Smith on the 5-6 April weekend and told Smith that he needed him for work beginning Monday, 7 April. Smith said that he was avail- able but that Register would have to clear his referral through Respondent. On Monday morning Register called Smith and advised him that Nathaniel Clark had okayed Smith working. Smith worked for the Employer continuously until 22 April. Smith testified that Nathaniel Clark drove up to him at his job with the Employer on 22 April and told Smith, "Well, I've got to lay you off. He said, `We've got men on the bench with cards."' However, Christopher Register intervened and pur- suaded Clark to permit Smith to continue working through the end of the week. Smith returned to work with the Employer on Monday, 28 April. Around noon, Nathaniel Clark came to the job. The following testimony concerns that occur- rence: Q. And, what, if anything, did Nat Clark say when he came in? A. He said, `You know what ' I come here for, don't you?" I said, "Yes, sir, you come to lay me off." He said, "that's right." He said, "You know who's on the bench, don't you?" I said, "not really." He said, "Scotty's on the bench. He's laid off, and he's got to work. He's got a GAYcard." I said, "Okay," I asked him when I was gonna get my card. and he said , "Supposed to get it today or tomor- row. If you get your card, you get your job back here." Q. Did you ever get a union card, Mr. Smith? A. No, sir. 11. CONCLUSIONS The arguments herein center around (1) the substance of the conversation between Christopher Register and Respondent's business agent, Nathaniel Clark, on 7 April; (2) whether Clark solicited Smith's layoff on 28 April; and (3) whether Respondent's action is in compliance with its hiring hall agreement and the law. Respondent contends that Smith was permitted to work for the Employer on 7 April pursuant to article II, section 2 of its collective-bargaining agreement with the Employer. That provision provides: 2. When an insufficient number of men are available under the hiring procedure set forth above to per- form the work in satisfactory manner, the Employer within forty eight (48) hours of its initial request, may employ such other men as are available; PRO- VIDED, HOWEVER, that the dispatcher and the Local Union shall be advised of the identities of such per- I reject Respondent's argument that Robert Smith was not available to work for the Employer on 7 April The record shows that the argument lacks both factual and logical support 646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sons as soon as they are hired. Mechanics so em- ployed may continue to work until the end of the day's work for which they were employed, after which the regular hiring procedure will be fol- lowed. Nathaniel Clark testified that he did not refer Robert Smith to the Employer on 7 April. Instead Clark told Christopher Register that the Employer was permitted to employ Smith under the circumstances existing at that time. Clark testified that no employees were available for referral on 7 April. Therefore, he permitted Register to employ Smith for 1 day as provided in article II, section 2. Clark testified that he was surprised when told around 22 April that Smith was still employed by the Employer. However, Clark's testimony conflicts with other evi- dence in the record. Respondent's president, Charles Spencer, mailed a statement or position to the Regional Office in which he commented regarding Smith's 7 April job with the Employer: 1. Mr. Smith was sent by Mr. Nathaniel Clark, Business Agent of International Longshoremen's Association Local 1408, initially because there were no other men on the bench. Christopher Register testified as follows regarding his 7 April conversation with Nathaniel Clark: I talked with Nat Clark, and I asked him who, was on the bench, and he said he didn't know. And I said, "Well, I've talked to Robert Smith," and, I said, "He's available. Would it be all right to send him out?" And he said, "Yes, I'll send him out." - And so, Robert came to work. It is apparent from all the evidence that nothing was said in Clark's and Register's 7 April conversation that suggested that Register was planning to limit Smith's work to one day. Additionally, even if I should credit Nathaniel Clark's version of his conversation with Chris- topher Register, it is doubtful that that discussion would justify reliance on the collective-bargaining agreement, article II, section 2. In his version Clark said nothing to indicate that Smith was not being referred by the Union or that Smith was to be considered a temporary employ- ee. Finally, the record shows that it was not until the hearing that Respondent first mentioned article II, sec- tion 2. Clark never mentioned to the Employer that it had worked' Robert Smith in violation of article II, sec- tion 2. In view of the entire record and in consideration of my observation of the demeanor of the witnesses, I am convinced that Christopher Register testified truth- fully. Register has nothing to gain in these proceedings. I credit his version of the 7 April conversation with Na- thaniel Clark. Christopher Register testified that approximately 2 weeks after Robert Smith started work, he received a call from Nathaniel Clark: A. He said that I could no longer work Robert, that he had made a mistake and jumped some men on the bench, and that he couldn't work for me. Q. What did you say? A. And I said, "Okay, fine. But, you'll have to come out and lay him off." On 22 April Clark came to the Employer's job and talked to Robert Smith. Smith testified that Clark told him, "Well, I've got to lay you off." Smith went on to say that Clark said, "We've got men on the bench with cards." Christopher Register testified that on 22 April he asked Nathaniel Clark to let Smith work his guaranteed 40 hours and Clark agreed to let Smith work until Friday, 25 April. On 28 April Smith continued working. Again Nathan- iel Clark came onto the job. Christopher Register testi- fied regarding the conversation involving Clark, Smith, and himself: Nat told Robert that he could no longer work there, that he had jumped some men on the bench and there were other members that had cards, and they had to go to work. Robert Smith's testimony, which is quoted above at pages 4 and 5, corroborates that of Register. As indicated above, I was impressed with the demean- or of Christopher Register. I credit his and Robert Smith's testimony regarding Nathaniel Clark's actions in laying off Robert Smith on 28 April 1986. Clark's com- ments during his conversation around 22 and 28 April 1986, indicated that he was removing Smith from the job with the Employer in order to place a union member in that position. The record indicates without dispute that Respondent did in fact refer a union member, Bernard Scott, to re- place Smith on the job with Respondent. In Radio Officers v. NLRB, 347 U.S. 17, 40 (1954), the Court stressed: The policy of the Act is to insulate employees' jobs from their organizational rights. Thus Section 8(a)(3) and 8(b)(2) were designed to allow employ- ees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without impelling their liveli- hood. Section 8(b)(2) of the National Labor Relations Act provides that it is unlawful for a labor organization to cause or attempt to cause an employer to discriminate against an employee in violation of Section 8(a)(3). I am convinced on the basis of the record that Re- spondent took actions to remove Robert Smith from his employment with the Employer on 28 April in order to replace Smith with a union member. By that action Re- spondent violated Section 8(b)(2) of the Act. Glazier Local 558 (PPG Industries), 271 NLRB 583, 585-586 (1984), enf. denied 787 F.2d 1406 (10th Cir. 1986). LONGSHOREMEN ILA LOCAL 1408 (JACKSONVILLE CONTAINER) Respondent contends that Smith was a temporary em- ployee. However, the credited evidence, including evi- dence of a similar pattern of Smith's employment with the Employer in 1984 and 1985, shows that he was not. Additionally, the evidence reveals that both Smith and Christopher Register were told by Respondent's business agent that Smith was being laid off because there were union members (i.e., employees holding "cards") on the bench. CONCLUSIONS OF LAW 1. Jacksonville Container Service, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization as defined in Section 2(5) of the Act. 3. Respondent, by causing the layoff of employee Robert Smith, who is not a member of Respondent, be- cause members of Respondent were out of work, has en- gaged in conduct violative of Section 8(b)(2) of the Act. 4. The above 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 committed unfair labor practices, I recommend that it be ordered to cease that action to take certain actions to remedy the violations in order to effectuate the purpose of the Act. Having found that Respondent has illegally caused the layoff of employee Robert Smith in violation of Section 8(b)(2) of the Act, I shall order Respondent to make Robert Smith whole for any loss of earnings he may have' suffered as a result of the discrimination against him. Backpay and interest shall be computed as stated in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest in accordance with the formula prescribed in Florida Steel Corp., 231 NLRB 651 (1977).2 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, International Longshoremen's Asso- ciation Local No. 1408, Jacksonville, Florida, its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining and coercing employees by causing the layoff of employees that are not members of Respondent in order to provide employment for Respondent's mem- bers or by, in any like or related manner, restraining or coercing employees in the exercise of their rights guaran- teed them by Section 7 of the Act. 2, Take the following affirmative action necessary to effectuate the policies of the Act. 2 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 2 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 647 (a) Make whole Robert Smith for any loss of earnings or other benefits resulting from its discrimination against Smith in the manner described in the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its hall copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees and members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to' a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT cause the layoff of nonmember employ- ees in order to provide employment for our members. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. 648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL make whole Robert Smith for any loss of earnings, or other benefits resulting from our discrimina- tion against him plus interest. INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, LOCAL No. 1408