Toledo World Terminals, Inc.

670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Toledo World Terminals, Inc. and International Longshoremen's Association, Local Union No. 1982 International Longshoremen's Association and Inter- national Longshoremen's Association, Local Union No. 1982. Cases 8-CA-16959, 8-CA- 17769, 8-CB-4706, 8-CB-4769, 8-CB-5032, and 8-CB-5290 June 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On March 27, 1986, Administrative Law Judge Walter H. Maloney Jr. issued the attached decision. Respondent Toledo World Terminals, Inc. (TWT) and Respondent International Longshoremen's As- sociation (ILA) filed exceptions and supporting briefs, and the General Counsel filed cross-excep- tions, a supporting brief, and an answering brief. TWT and ILA subsequently filed answering briefs. 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,2 ' TWT has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and positions of the parties ILA alleges in its exceptions that the judge was biased against the Re- spondents and their counsel After carefully reviewing the record, we find no basis to support this claim 2 The Respondents have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an admnustra- tive 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 re- versing the findings Although the parties' exceptions allege many factual errors, those we do not address are not material to the conclusions we reach In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be com- puted at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S C § 6621 The General Counsel did not allege a violation of Sec 8(aX2) nor re- quest a "fresh start" remedy. Accordingly, we do not adopt this portion of the judge's remedy We do not adopt the judge's recommended visitatonal clause because we find it to be unnecessary. See Cherokee Marine Terminal, 287 NLRB 1080 (1988) The judge found ILA violated Sec 8(b)(1)(A) by its discriminatory use of the grievance machinery. We adopt the judge's finding that ILA vio- lated Sec. 8(b)(1XA) by its discriminatory use of the grievance machinery and adopt the cease-and-desist order provided by the judge In so doing, we find that no additional affirmative remedy is warranted for this viola- tion in light of the predominant nature of the grievances and of the reme- dies provided for other violations found in this case Rather than the reinstatement language the judge uses, we shall substi- tute a remedy and Order that is more appropriate in the hiring hall set- ting and conclusions only to the extent consistent with this Decision and Order. TWT is the lessee-operator of Facility One, the principal general cargo dock facility in the Port of Toledo, Ohio. TWT began negotiating to lease Fa- cility One in the spring of 1981 when the predeces- sor operator, Toledo Overseas Terminal (TOT), closed because of financial difficulties. TOT had operated the dock under a contract with Interna- tional Longshoremen's Association, Local Union No. 1982 (Local 1982). In considering a lease of Facility One, TWT decided it would not deal with Local 1982. TWT believed that TOT and prior op- erators failed in part because the Local 1982 con- tract was too costly and restrictive. Furthermore, an owner of TWT, Paul Wills, also owned Consoli- dated Dock Company (Con Dock), which operated in another part of the Port of Toledo and which had problems with Local 1982. In 1980, Local 1982, with ILA assistance, had established near the Con Dock facility a picket boat with informational signs alleging that Con Dock (which operated with Teamsters-represented stevedores) was not paying area standard wages. William Davis, chief operat- ing head of Con Dock and TWT, estimated that Con Dock lost about $500,000 in ship revenues as a result of the picketing. Having decided not to deal with Local 1982, TWT informed ILA of its position prior to signing the Facility One lease. ILA, fearful that TWT might use Teamsters labor, agreed to deal directly with TWT. ILA informed Local 1982 President Charles Moody of the decision and told him Local 1982 would be brought into direct dealing with TWT in the near future. TWT informed ILA that it would recognize any union that presented cards for a majority of its em- ployees. TWT informed ILA it intended to hire a core group of employees to be placed on a "pre- ferred" list. Workers on the preferred list would be permanent TWT employees and not subject to the daily shapeup at which the union dock steward refers people to the Employer for work. TWT ad- vised a number of unions of its intention to hire for its preferred list. Only former TOT employees be- longing to Local 1982 applied. Starting April 15 or 16, 1981, TWT hired 13 employees3 and gave their names to ILA. Moody obtained 13 signatures on union cards by April 20, 1981, the first day steve- dores performed work for TWT. TWT and ILA executed a memorandum of understanding on that date that excluded Local 1982 as a party to the contract for the time being and that adopted, with modifications, the terms of the ILA Cleveland area 2 By the time operations began , TWT had 16 preferred employees 289 NLRB No. 89 TOLEDO WORLD TERMINALS agreement. ILA appointed Moody as dock steward at TWT. His duties included making job referrals at the hiring hall shapeups. Local 1982 was not brought into the bargaining relationship with TWT, and Local 1982 was not given receipt of and control over dues paid by Local 1982 members regarding their TWT employ- ment. On September 10, 1981, ILA and TWT exe- cuted a contract covering the Port of Toledo. No mention of Local 1982 appeared in the contract. Thereafter, Local 1982's executive board decided to file unfair labor practice charges against TWT and a decertification petition. On September 23, 1981, a Local 1982 membership meeting attended by 80 members ratified the executive board's deci- sion. On October 2, 1981, Moody filed unfair labor practice charges against TWT, a decertification pe- tition, and a representation petition covering the TWT bargaining unit. Moody also filed internal union charges claiming ILA had placed Local 1982 in a de facto trusteeship. Around the beginning of November 1981, ILA placed Local 1982 in trustee- ship and named Local 1982 member Cleo Syph as trustee and new dock steward. Moody and Syph are leaders of rival factions within Local 1982. The conflict between them dates back to 1974 and has been ongoing and noto- rious. Stevedores, almost without exception, belong to one faction or the other, although some men have switched camps as the balance of power has shifted over the years. The record is replete with evidence of Syph's hostility to Moody and his fol- lowers. The judge lists 34 threatening statements by Syph to Moody or Moody supporters that con- stitute violations of Section 8(b)(1)(A) of the Act. Two days after Syph became dock steward, Harold Chevalier, Syph's principal assistant, filed internal union charges against Moody and other of- ficers of Local 1982. Although a hearing was held and evidence taken, no decision has been made by ILA regarding the charges. Also during November and December 1981, Syph obtained pledge cards from stevedores in support of Syph's plan to char- ter a new local at the Port of Toledo. On March 12, 1982, the ILA executive council authorized the issuance of a charter for a new local at Toledo, designated Local 2037. On March 23, 1982, the Moody faction, on behalf of Local 1982, filed for relief from a judge in Federal district court where litigation against ILA was pending. On April 2, 1982, the district court ordered ILA to terminate the trusteeship of Local 1982, to pay Local 1982 the checkoff dues that had been received since May 1981, and to rescind the charter granted to Local 2037. 671 Against this background of hostility, we consider the referral of employees for hire at TWT by Moody and Syph as ILA dock stewards. As long as TWT utilized the shapeup system, TWT provid- ed a taped telephone message at night indicating the number of workers over and above the 16 pre- ferred employees it anticipated would be needed the following day. At 7:30 each morning when TWT needed in excess of 16 workers,4 stevedores, the dock steward, and a TWT foreman would gather at the hiring area on the dock. The dock steward would call a worker's name, who, if present and willing to work, would be assigned a job for the day.5 Shapeup ended when all the jobs were filled. From 1981 through a revamping of the hiring system in 1984, the TWT foremen present during a shapeup never refused to hire any worker referred by the dock steward. In addition to running shapeups, the dock stew- ard controlled lines assignments, which involved the hiring of four workers each time a ship docks at Facility One to unload or leaves the dock after unloading. The four workers are guaranteed 4 hours' pay for a "tie-up" and 2 hours' pay for a "let-go." The work-securing the ship at the dock with cables from the ship or releasing the cables to let the ship depart-may take only a few minutes and generally is not difficult. Lines work is consid- ered desirable, but it is sporadic unless the lines dis- patcher gives an inordinate number of assignments to one worker. From the beginning of the 1981 shipping season6 until his removal as dock steward, Moody ran the shapeups and had David Ray Edwards make lines assignments. Moody referred men at shapeup by calling out names from the Local 1982 seniority list in order of seniority. He went straight down the list until all the jobs were filled. Each day Moody began at the top of the seniority list. Edwards' lines assignments were made on a random basis, but with an eye toward spreading out the assignments. Beginning November 2, 1981, Syph ran the sha- peups and made lines assignments . For the remain- der of the 1981 season, Syph essentially ran sha- peups and made lines assignments as had Moody and Edwards. Beginning in 1982, ILA and TWT orally estab- lished a new job-referral category of employees called "experienced" employees, individuals who 4 Preferred employees generally were notified at the end of the day of the next day's assignment 5 There is a conflict in the testimony over whether referred workers were allowed to pick their own assignments in 1981 or the TWT foreman made the assignment. We find it unnecessary to resolve this conflict Because of ice, a shipping season at the Port of Toledo generally runs from April 15 to December 15 672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD had worked 350 or more hours in the 1981 season. Twenty-six men, over and above the 16 preferred employees, met this criterion. They were called first at shapeups. Syph was not required to refer men in any particular order within the experienced category, except that Edwards and Shirley Marsen- burg, another Moody supporter, had to be referred first and second each day.7 Other workers, called "casual" employees, were referred after all pre- ferred and "experienced" employees had been of- fered work. In 1982 Syph discontinued use of the Local 1982 seniority list in making referrals at shapeup. The judge credited testimony that Syph said he was going to hire only his friends and relatives. In fact, Moody supporters on the experienced list were re- ferred only after Syph supporters were called; Syph referred as casuals new men with no experi- ence and no allegiance to either faction before re- ferring Moody supporters; and, in 1982, Moody supporters received only 13 lines assignments, while Syph supporters received 496.8 Syph's hiring practices continued in 1983. Be- cause of the decline in business in 1982, a worker needed only 200 hours to be on the experienced list. Five Moody supporters were removed from the experienced list because they had not worked enough hours, and three who were disabled or re- tired were removed. Eight Syph supporters were added to the list. Edwards and Marsenburg re- mained on the experienced list, but they lost their preference in order of call because they no longer had 1000 hours of work in the prior year.9 Syph gave only five lines assignments to Moody support- ers, although business increased in 1983 over 1982. In 1984 TWT changed the method of hiring.' o During negotiations for a new contract in January 1984, TWT advised ILA that TWT would do all the hiring if the NLRB issued a complaint against TWT for a hiring violation based on pending charges. After the first consolidated complaint issued on March 30, 1984, TWT, using a consulting firm, devised a system of selecting employees with 9 Edwards' and Marsenburg's special status was arranged because start- ing in the 1982 season they were removed from the preferred list, a great economic loss Having worked daily during the 1981 season, Edwards and Marsenburg had in excess of the 1000 hours required by the written contract to be considered "experienced." They were replaced on the pre- ferred list by two Syph supporters 8 These figures differ slightly from the judge's because the judge mad- verently listed employee McVicker as a Moody supporter when compil- ing this statistic 9 In 1982 Edwards worked 301 hours and Marsenburg worked 243 hours 10 At the beginning of the 1984 shipping season, a worker needed 400 hours of work in 1983 to be on the experienced list. Three Moody sup- porters, including Marsenburg, were dropped from the experienced list because of their 1983 hours, and three Syph supporters were added One Syph supporter was moved from the experienced list to the preferred list essentially permanent status. Davis listed the 63 ste- vedores (including the 16 on the preferred list) he claimed performed 92 percent of the work for TWT from 1981 through 1983, and, with advice from 4 supervisors, ranked them. From the list of 63, Davis selected the top 50. In 1984 a TWT fore- man (rather than Syph) at shapeups exhausted the list of 50 before turning to casuals, and he assigned lines on a rotating basis from the list of 50. Beginning in 1982 Moody supporters reacted to Syph's hiring practices by filing grievances under the ILA-TWT contract. The grievances, mostly on forms provided by Moody, allege the grievant was not referred for work or not assigned lines, despite the referral and assignment of less senior men, be- cause of his continued support for Local 1982.11 None of the grievances alleging the hiring of or as- signment of lines to less senior men were granted by TWT or pursued by ILA after TWT's denial. The TWT/ILA position on these grievances ap- pears to be that the contract only required the re- ferral of qualified men, and Syph never referred unqualified men; and the contract provided no standard for lines assignments. ILA and TWT Liability for Hiring Practices from 1982 Through May 22, 1984 The judge found that ILA, through numerous statements by Syph, violated Section 8(b)(1)(A). The judge found that ILA violated Section 8(b)(1)(A) and (2) by discriminating for intraunion reasons in referring men to TWT for hire. We agree. The judge also concluded that TWT violat- ed Section 8(a)(3) by virtue of his finding that Moody, Syph, and Edwards were TWT supervi- sors. Although we agree with the conclusion,12 we do not agree with the judge's rationale. We find, contrary to the judge, that ILA operat- ed a hiring hall at TWT's Facility One. The sha- peup process conducted by the ILA dock steward at the hiring area resembles the hiring halls operat- ed by unions across the country.13 It is clear from 11 There were 249 grievances filed in 1982, 1672 grievances filed in 1983, and 1486 grievances filed in 1984 12 The judge found that the Respondent's liability commences Febru- ary 12, 1983, 6 months before August 12, 1983, when the initial charge against TWT was filed The Respondent excepts, contending that there was no charge concerning TWT discrimination until the August charge (alleging supervisory threats) was amended in October 1983 to allege par- ticipation in operating a discriminatory hiring hall. The supervisory threats, however, were directed at employees for filing grievances alleg- ing illegal operation of the hiring hall, and the original charge alleged these threats to be violations of Sec 8(a)(3) Thus, although the original charge did not allege employment discrimination, we find sufficient legal and factual nexus between the supervisory threats about filing grievances and the complaint's discrimination allegation We therefore agree with the judge that the Respondent's liability commences February 12, 1983. 13 That ILA referring agents operated on TWT's property and did not use published objective criteria in making referrals is not evidence that the system was not a hiring hall. TOLEDO WORLD TERMINALS the above recitation of facts that TWT utilized ILA's referral system to obtain its employees. An employer is liable for union discrimination if it has actual knowledge or has reason to know of the dis- crimination. Postal Service, 254 NLRB 74 (1981). See also Wolf Trap Foundation, 287 NLRB 1040 (1988). In this case, ILA's conduct was widespread and notorious, and TWT's chief operating head and two foremen admitted knowledge of the factional- ism underlying ILA's discrimination. Moreover, the thousands of grievances filed claiming employ- ment discrimination because of the infighting belies any good-faith claim that TWT did not know of the factionalism and resulting discrimination. 14 Ac- cordingly, we conclude TWT violated Section 8(a)(3) and (1) of the Act by accepting and con- doning a discriminatory referral system. Edwards and Marsenburg As discussed above, Edwards and Marsenburg were removed from the preferred list and given a preferential order of call on the experienced list in 1982. Although TWT claims they were removed from the preferred list to make room for more ver- satile employees, the judge credited testimony that TWT Foreman Glenard Staler told Edwards that his removal was because of "politics" and the judge found both Moody supporters were removed for intraunion political reasons. Although the judge found that TWT was the moving party in the re- moval of Edwards and Marsenburg from the list, he concluded that ILA violated Section 8(b)(1)(A) and (2) by attempting to cause their demotions be- cause of ILA's hostility to the Moody faction. 1 s We agree with the judge's finding that TWT was the moving party in deciding to remove Edwards and Marsenburg from the preferred list, and with his unstated finding that ILA made no request that the two be removed. We do not agree, however, that it is reasonable to infer from ILA's hostility to the Moody faction that ILA participated in their removal. To establish an "attempt to cause" viola- tion, there must be some evidence of union con- 14 As found below, we reverse the judge's finding that the dock stew- ards were TWT supervisors. 15 The complaint contains no allegation of an 8(a)(3) violation for the demotions of Edwards and Marsenburg, and none can be found because TWT's actions occurred outside the 10(b) period. Because we find no violation for the removal of Edwards and Marsen- burg from the preferred list, we will order no special remedy for them Inasmuch as they had a preference in order of call during the 1982 ship- ping season, the evidence does not support a finding of discrimination for the entire year We will order that they receive the standard remedy, be- ginning from 1983, afforded the other discnminatees The judge found that TWT violated Sec 8(a)(3) in 1983 by removing the two men's preference in order of call As the make-whole remedy for the general class of discnminatees now covers Edwards and Marsenburg, we find it unnecessary to adopt this additional 8(a)(3) violation 673 duct; it is not sufficient that an employer's conduct might please the union. See Iron Workers Local 433 (Riverside Steel), 169 NLRB 667 (1968). In the ab- sence of such evidence, we reverse the judge's findings of violations of Section 8(b)(1)(A) and (2). The 1984 Hiring System The judge found that TWT violated Section 8(a)(3) in revising its hiring system in 1984. In reaching this conclusion, the judge gave consider- able weight to the fact that TWT, in choosing among the stevedores for permanent employees, "had given long and constant support to the Syph faction." We agree with the judge's 8(a)(3) finding for the reasons that follow. We find the 1984 hiring system discriminatory because it represents the continuation of known, past discrimination . In 1984 TWT considered only the 63 men who did 92 percent of the work for TWT in the prior 3 seasons. TWT, however, was aware of and party to gross discrimination in 1982 and 1983 against Moody supporters who did not qualify for consideration in 1984 solely because of the past discrimination. Accordingly, TWT cannot evade continuing liability by using the product of its discrimination to establish a new system. Simi- larly, ILA remains jointly liable for discrimination beyond May 22, 1984, because its long pattern of discriminatory referrals made it all but impossible for TWT to devise a system that would avoid dis- crimination.16 The Removal of Moody as Dock Steward The judge found that ILA violated Section 8(b)(1)(A) and (2) of the Act by removing Moody as dock steward and thus causing TWT to effectu- ate a substantial change in his employment status17 in retaliation for his filing unfair labor practice charges and election petitions with the Board. To remedy the violation, the judge recommended or- dering ILA to pay Moody the difference between what he actually earned and what he would have earned as dock steward. ILA defends its action by relying on Teamsters Local 282 (General Contrac- tors), 280 NLRB 733 (1986), remanded sub nom. Kudla v. NLRB, 821 F.2d 95 (2d Cir. 1987), in which the Board held that a union may consider loyalty in choosing individuals for policy-making, steward-type positions. We agree with the judge's finding of a violation for the reasons that follow. ILA removed Moody i6 Having found that ILA remains liable beyond the establishment of the new system, we find it unnecessary to pass on the extent of Syph's authority to refer or hire under the system 17 The dock steward works more hours under the ILA-TWT contract than any other stevedore 674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD as steward for filing an unfair labor practice charge, for filing a decertification petition, and for disloyalty. Because this case presents a dual-motive situation, a Wright Line18 analysis is appropriate.19 Auto Workers Local 2017 (Federal Mogul), 283 NLRB 799 (1987). A union violates Section 8(b)(1)(A) by removing a steward for filing an unfair labor practice charge against the Union. Teamsters Local 79 (Carl Subler Trucking), 269 NLRB 1132 (1984); Auto Workers Local 212 (Chrysler Corp.), 257 NLRB 637 (1981), enfd. 690 F.2d 82 (6th Cir. 1982). Thus, the Gener- al Counsel has made a prima facie showing that Moody's removal was unlawful. The record shows, regarding the filing of the de- certification petition and the loyalty issue, that Moody filed a petition to certify Local 1982 as the representative for the unit at the time he filed to decertify the International. Moody was not seeking to bring in a rival labor organization. District Court Judge Young found that ILA's claimed fear of Moody's disloyalty was "a trumped up justifica- tion to cloak their own wrong doing." This finding is amply supported by the record in the instant case. Accordingly, we find General Contractors is inapplicable and ILA has failed to show that it would have removed Moody as steward even in the absence of his protected conduct of filing an unfair labor practice charge. AMENDED CONCLUSIONS OF LAW 1. Delete from Conclusion of Law 4: "and by agreeing to modify a collective-bargaining agree- ment with TWT in order to change a preferential status previously afforded to certain employees who were supporters of a dissident union faction." 2. Substitute for Conclusion of Law 5: "By main- taining and giving effect to an agreement or ar- rangement with the ILA to discriminate in employ- ment against, and by perpetuating past discrimina- tion in hire and tenure of, employees and applicants for employment whose names are listed in Appen- dix A of the judge's decision because of their mem- bership in and support for Local 1982, Respondent TWT has violated Section 8(a)(3) of the Act." ORDER The National Labor Relations Board orders that A. Respondent Toledo World Terminals, Inc., Toledo, Ohio, its officers, agents, successors, and assigns, shall is 251 NLRB 1083 (1980), enfd on other grounds 662 F 2d 899 (1st Cir. 1981), cert. denied 455 U S. 989 (1982) is Contrary to the judge's finding, we find Moody, as well as Syph and Edwards, was not a TWT supervisor The complaint does not allege that the dock stewards were supervisors and the record does not support such a finding 1. Cease and desist from (a) Threatening employees with loss of work be- cause they have filed grievances and continue to support International Longshoremen's Association, Local Union No. 1982. (b) Discouraging membership in or activities on behalf of International Longshoremen's Associa- tion, Local Union No. 1982, or any group or fac- tion within that Union, by maintaining and giving effect to any agreement or arrangement with Inter- national Longshoremen's Association that discrimi- nates against employees and applicants for employ- ment, or discriminating against them in their hire or tenure by perpetuating past discrimination. (c) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Restore the 63 employees whose names are set forth in Appendix A to the judge's decision to their former or substantially equivalent employ- ment status, without prejudice to their seniority or the other rights that they have previously enjoyed, and jointly and severally with International Long- shoremen's Association make them whole for any loss of pay or benefits that they have suffered by reason of the discrimination found, in the manner described in this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Toledo, Ohio dock and warehouse copies of the attached notice marked "Appendix A."20 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees 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 Respondent has taken to comply. 20 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 " TOLEDO WORLD TERMINALS B. Respondent International Longshoremen's As- sociation, New York, New York, its officers, agents, and representatives, shall 1. Cease and desist from (a) Causing or attempting to cause Toledo World Terminals, Inc., or any other employer, to discrimi- nate against employees or applicants for employ- ment regarding their hire or tenure because they are members of International Longshoremen's As- sociation, Local Union No. 1982 or have given support to any group or faction within that Union. (b) Maintaining with Toledo World Terminals, Inc., or any other employer, a hiring practice or arrangement giving preference in employment to employees and applicants for employment over those whose names are listed in Appendix A to the judge's decision on the basis of intraunion factional considerations. (c) Threatening employees of Toledo World Ter- minals, Inc., or applicants for employment with that Employer or any other employer, with loss of work or other reprisals if they continue to support the leadership of International Longshoremen's As- sociation, Local Union No. 1982, or any group or faction within that Union, or if they engage in, or refuse to engage in, any other concerted activities that are protected by Section 7 of the Act, includ- ing the filing of intraunion charges, the filing of unfair labor practice charges and representation pe- titions with the Board, the filing of grievances, or the refusal to support efforts to charter another local union. (d) Failing or refusing to process grievances be- cause grievants are members of International Long- shoremen's Association, Local Union No. 1982, or a group or faction within the Local. (e) Placing International Longshoremen's Asso- ciation, Local Union No. 1982 in trusteeship, re- moving its officers, or taking any steps to charter another local union at the Port of Toledo for the purpose of replacing International Longshoremen's Association, Local Union No. 1982. (f) Replacing Charles Moody or any other member as dock steward because he has filed unfair labor practice charges under the Act. (g) In any other manner restraining or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Jointly and severally with Toledo World Ter- minals, Inc. make whole the 63 individuals whose names are listed in Appendix A of the judge's deci- sion for any loss of pay or benefits they may have suffered by reason of the discrimination found in this case, as set forth in this decision. 675 (b) Within 15 days after receipt thereof, mail postage prepaid to every living person whose name is found on the seniority list of International Long- shoremen's Association, Local Union No. 1982 a signed copy of the attached notice marked "Ap- pendix B."21 Copies of the notice shall be fur- nished to the Respondent by the Regional Director for Region 8. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint alle- gations not specifically found are dismissed. 21 See fn 20 APPENDIX A NOTICE To EMPLOYEES 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 ordered us to post and abide by this notice. WE WILL NOT threaten employees with loss of work because they have filed grievances or contin- ue to support International Longshoremen's Asso- ciation, Local Union No. 1982, or any group or faction in that Local. WE WILL NOT discourage membership in or ac- tivities on behalf of International Longshoremen's Association, Local Union No. 1982, or any group or faction in that Local, by maintaining and giving effect to any agreement or arrangement with Inter- national Longshoremen's Association that discrimi- nates against employees or applicants for employ- ment, or by discriminating against them in their hire or tenure by perpetuating past discrimination. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed you by Section 7 of the Act. Those rights include the right to form, join, or assist labor organizations, to bargain collectively through representatives of your own choosing, and to engage in other concerted activities for your mutual aid or protection. WE WILL restore the 63 employees whose names are set forth in an appendix to the judge's decison to their former or substantially equivalent employ- ment status, without prejudice to their seniority or to other rights that they have previously enjoyed, and WE WILL, jointly and severally with Interna- tional Longshoremen's Association, make them 676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD whole for any loss of pay or benefits which they may have suffered by reason of the discrimination against them, with interest. TOLEDO WORLD TERMINALS, INC. APPENDIX B NOTICE To 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 ordered us to post and abide by this notice. WE WILL NOT cause or attempt to cause Toledo World Terminals, Inc. to discriminate against em- ployees or job applicants regarding their hire or tenure of employment because they are members of or have supported International Longshoremen's Association, Local Union No. 1982, or any group or faction in that Local. WE WILL NOT maintain with Toledo World Ter- minals, Inc. a discriminatory and unlawful hiring arrangement giving preference to employees and applicants for employment on the basis of intraun- ion factional considerations over those whose names are listed in an appendix to the judge 's deci- sion. WE WILL NOT threaten employees and prospec- tive employees of Toledo World Terminals, Inc. with loss of work or other reprisals if they contin- ue to support International Longshoremen's Asso- ciation, Local Union No. 1982, or any group or faction in that Local. WE WILL NOT threaten employees or prospective employees of Toledo World Terminals , Inc. with loss of work or other reprisals because they have filed intraunion charges, unfair labor practice charges, grievances, or representation petitions, or because they have refused to support an effort to charter another ILA local at the Port of Toledo. WE WILL NOT fail or refuse to process griev- ances because grievants are members of Interna- tional Longshoremen's Association, Local Union No. 1982, or a group or faction within that Local. WE WILL NOT attempt to place International Longshoremen's Association, Local Union No. 1982 in trusteeship and remove its officers. WE WILL NOT replace any dock steward because he has filed unfair labor practice charges under the Act. WE WILL NOT grant a charter to a new local in order to replace International Longshoremen's As- sociation, Local Union No . 1982 as the potential collective-bargaining representative of the employ- ees of Toledo World Terminals, Inc. WE WILL NOT in any other manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. Those rights include the right to form, join, or assist a labor organiza- tion, to bargain collectively through representatives of your own choosing, and to engage in other con- certed activities for your mutual aid and protec- tion, or to refrain from doing so. WE WILL, jointly and severally with Toledo World Terminals, Inc., make whole the 63 employ- ees whose names appear in an appendix to the judge's decision for any loss of pay or benefits that they have suffered by reason of the discrimination against them, with interest. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION Paul C. Lund, Esq. and Nathan W. Albright, Esq., for the General Counsel. Thomas M. Seger, Esq., of Cleveland, Ohio, for Respond- ent TWT. Herzl S. Eisenstadt, Esq., of New York, New York, for Respondent ILA. Jeffrey Julius, Esq., of Toledo, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE WALTER H. MALONEY JR., Administrative Law Judge. These consolidated cases came on for hearing before me at Toledo, Ohio, on a consolidated unfair labor practice complaint,' issued by the Regional Director for Region 8, which alleges that Respondent Toledo World Termi- nals, Inc. (TWT)2 violated Section 8(a)(1) and (3) of the i The principal docket entries in this case are as follows Charge filed by International Longshoremen's Association, Local Union No 1982 (Local 1982 or the Charging Party) against ILA on April 5, 1982, in Case 8-CB-4706, charge filed by Local 1982 against the ILA on July 9, 1982 , in Case 8-CB-4769; charge filed by Local 1982 against the ILA on August 12, 1983 , in Case 8-CB-5032, and amended on October 4, 1983; charge filed against TWT by Local 1982 on August 12, 1983, in Case 8-CA-16959, and amended on October 4, 1983 , consoli- dated complaint issued by the Regional Director for Region 8, against both Respondents on March 30, 1984, in the foregoing CA and CB cases; Respondent ILA's answer filed on April 20, 1984; Respondent TWT's answer filed on April 10 , 1984, charge filed by Local 1982 against TWT on September 4, 1984, in Case 8-CA-17769, and against the ILA in Case 8-CB-5290 on September 4, 1984, second consolidated complaint issued against both Respondents by the Regional Director on April 30, 1985, Respondent TWT's answer to the second complaint filed on May 8, 1985; Respondent ILA's answer to the second complaint filed on May 8, 1985; counsel for the General Counsel's memorandum and bill of particulars filed on June 5, 1985, and amended bill of particulars filed on June 11, 1985; hearing held in Toledo, Ohio , on 25 days between July 22, 1985, and October 17, 1985; briefs filed with me by the General Counsel and both Respondents on or before March 14, 1986 2 Respondents admit, and I find, that TWT is an Ohio corporation that maintains an office and place of business in Toledo, Ohio, where it is en- Continued TOLEDO WORLD TERMINALS Act, and that Respondent International Longshoremen's Association (ILA) violated Section 8(b)(1)(A) and (2) of the Act. More particularly, the amended consolidated complaint alleges that Respondent ILA, acting out of discriminatory motives and in an effort to eliminate a hostile faction within Local 1982, attempted to place Local 1982 in trusteeship and remove its elected officers; removed Charles C. Moody, the leader of the dissident faction, as its dock steward; modified its collective-bar- gaining agreement with TWT with a view toward elimi- nating a preferential status of dissident members ; granted a new charter to another local in order to replace Local 1982 as the general cargo local in the Port of Toledo; operated a discriminatory hiring hall or hiring arrange- ment with TWT; failed to use objective criteria and maintain the records necessary to operate a nondiscrim- inatory hiring arrangement; failed to refer for employ- ment members and others who had filed grievances and had taken other actions politically inimical to the ILA- backed leadership on the docks; repeatedly threatened members with loss of work and other reprisals because they filed unfair labor practice charges and grievances and failed to support the ILA effort to replace Local 1982 with another local; and refused to process the grievances of dissident members. The amended consoli- dated complaint also alleges that TWT, for its part, threatened an employee with loss of work if he contin- ued to file grievances and discriminated against active Local 1982 members by refusing to hire them or by giving others preferential hiring status based on intraun- ion factional considerations. Both Respondents deny that they or their agents made any unlawful threats. Respond- ent ILA states that any actions taken by it were aimed solely at preserving work opportunities at the Port of Toledo for its members in the face of a purported effort by a rival union to claim jurisdiction over work being performed by TWT employees. TWT insists that its hiring decisions were made solely on the basis of the ability of job applicants who proferred themselves for employment. Other defenses will be discussed in the course of this decision. On these contentions, the issues were joined.3 FINDINGS OF FACT A. The Unfair Labor Practices Alleged 1. Background After the St. Lawrence Seaway opened in 1959, the Port of Toledo became a deep-sea port. Its principal gen- eral cargo dock facility (Facility One) is located on the east side of the Maumee River near the point where the gaged in the stevedoring business In the course and conduct of this busi- ness TWT provides stevedoring services to shipping companies that are engaged in interstate and foreign commerce From these services each year it derives income in excess of $50,000 Accordingly, Respondent TWT is engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act Respondent ILA and Charging Party Local 1982 are, re- spectively, labor organizations within the meaning of Sec 2(5) of the Act. s Errors in the transcript have been noted and corrected 677 river empties into Lake Erie.4 It is owned by a public agency called the Toledo-Lucas County Port Authority (Port Authority). Over the years the Port Authority has leased these premises to private stevedoring companies and has also leased adjacent properties that constitute an international trade zone called the World Trade Center. The docking facilities consist of about 40 acres and in- clude 7 piers, a large warehouse and office complex, and a large, open area simply referred to as the field. Since 1959, the general cargo facility has successively been leased to Toledo Morain, Ceres, Oglebay-Norton, Toledo Overseas Terminal (TOT) (sometimes referred to as the DeBartolo Company, of which TOT was a subsid- iary), and the present lessee, TWO, which leased Facility One to the Respondent in this case , Toledo World Ter- minals, Inc. (TWT), in the spring of 1981.$ The compa- nies who took over these operations at the beginning of the 1981 season under lease from the Port Authority are separate corporations, but are closely intertwined, having in part common principals and interchangeable manage- ment. The most prominent of these principals is Paul Wills, an owner of Wills Trucking Company, who was also the owner of the Consolidated Dock Company (Con Dock), another stevedoring company that operated in the Port of Toledo at another location until the end of 1984. Wills is the sole owner of TWT. The chief operat- ing head of Respondent TWT and Con Dock is and has been William H. Davis. Many of the employees involved in this dispute have worked on the docks in Toledo since 1959 and have been employees of each successive stevedoring company that has received a contract from the Port Authority. Their names appear in order from 1 to 154 on a seniority list frequently referred to in the record as the Local 1982 seniority list. In fact that list, with the minor exceptions of those who have recently died or retired from gainful employment, was the agreed-on seniority list that TOT and Local 1982, the collective-bargaining representative for TOT's stevedore employees, utilized in assigning work until TOT left the Port of Toledo in the spring of 1981. This list should more accurately be designated as the TOT-Local 1982 list. Respondent TWT has sought to escape from any responsibility to abide by that list, and its effort in this regard has been a contributing factor to the embittered and enduring dispute that is spelled out in the record of this case. These longtime stevedores, to whom port seniority is a treasured status, all have at least 9 years' experience on the Toledo docks. Since the Port of Toledo has experienced a marked decline in shipping volume over the last 10 years, the question of seniority has become most acute. Part of the fallout from this de- cline in business is the lack of opportunity for new em- ployees to work on the port and the gradual aging of the complement of stevedores available for hire. In the mind 4 General cargo includes such items as zinc and steel coils , potash, urea, nickel, hemp, molasses, and household goods belonging to military personnel Large amounts of grain are shipped from the Port of Toledo, but grain is handled by other companies whose employees are represent- ed by another ILA local 5 Although leasing the docking facilities to TWT, TWO leased the World Trade Center across the road to another affiliated company, Toledo World Industries (TWI) 678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of TWT, strict observance of such seniority, the willing- ness of its predecessor to observe various uneconomical hiring and manning practices insisted on by the ILA and by Local 1982, and TOT's defined benefit retirement plan for stevedores were among the reasons TOT and other stevedoring companies failed to operate at a profit and ultimately went out of business. Many of these man- ning practices created situations in which large numbers of employees were paid high hourly wages when there was no work available for them to perform. TWT was determined not to make the same mistakes. Beginning at a time long before TWT came to the Port of Toledo,6 stevedores in the Port of Toledo had become divided into two factions. It must be remem- bered that many of the individuals involved in this fac- tionalism have known each other and their families for a generation or more, and their acquaintanceships are not solely limited to contacts on the job during the shipping season. The acknowledged leader of what has become the incumbent faction is the current ILA dock steward for TWT, Cleo J. Syph. The leader of the challenging faction is and has been Charles C. Moody, who was the ILA dock steward at TWT until internal difficulties within the ILA brought about his removal from that po- sition by the ILA on November 3, 1981. The enmity between these individuals dates back to about 1974, at which time the ILA merged black and white locals (Locals 1317-A and 1972) at the Port of Toledo into Local 1982. Although Moody and Syph both came from Local 1317-A, the black local, a dispute arose between them following the merger over seniority within the new local. Syph proposed that the seniority lists of the two former locals be dovetailed on a one-to- one basis, resulting in an amalgamated list that would show one black stevedore, then one white stevedore, and so forth, irrespective of length of service on the port. The Moodys, including Charles Moody's older brother Robert Moody, insisted on "date of rank" at the Port as the sole determinant of seniority, meaning that seniority on the merged list would not be strictly apportioned among black and white stevedores, leaving racial compo- sition to fall where it might in the order of listing. Ulti- mately port seniority won out, but the bruises that result- ed from this dispute lived on. The factionalism that was thereby generated carried over into subsequent contests for Local 1982 offices. Such contests between the Moody and the Syph factions were quite frequent. Using the "Local 1982" seniority list as a guide, Charles Moody recited his estimate of the political senti- ments of each of the 154 stevedores named thereon. Al- though Syph testified at great length on a variety of mat- ters, he never disputed any of Moody's evaluations, so I regard this classification as a reliable guide concerning which individuals support which faction. One caveat suggested by Glen Staler and Floyd "Fats" Tefft, both longtime stevedores in Toledo and now marine foremen for TWT, is that factional sentiment on the part of some 6 TWT was not incorporated in the State of Ohio until March 6, 1981, when wills and his associates , including Frank Miller and William Davis, decided to make a bid for the stevedoring work at the Port of Toledo, which was then being abandoned by TOT (i e, DeBartolo). individuals tends to fluctuate, depending on which leader is perceived at any given moment to be holding the most power. When, in 1982, an internal union dispute gave rise to the submission of various petitions to the ILA both by Syph and Moody followers, some objective evi- dence came into being that confirms Moody's political assessments, although it is also clear that some individ- uals simply wished to hedge their bets by signing peti- tions circulated on behalf of both factions. If animus could be quantified, hostility between the principal ad- herents of these factions should be rated as a 10 on a scale of 10, although feelings on the part of others caught up in this Hatfield-and-McCoy rivalry might not, in any given instance, be quite so intense. Suffice it to say that all stevedores have been called on to choose up sides, and choose they have.? Over the years, and until the beginning of the 1982 season when TWT told Syph that he could ignore the Local 1982 list, seniority rankings were of crucial impor- tance in obtaining daily employment. This was true be- cause stevedoring companies, including TWT, observed the practice of daily shapeups to hire employees assigned to load and unload vessels that called at the Port of Toledo. This practice, so commonplace in the longshore industry, means that when employees are needed to load or unload ships, they gather together at scheduled times in a hiring area and are selected for 4- or 8-hour shifts. The same process is repeated the next day a ship is in port. If the list is called from the top each day, then high seniority is a guarantee of more-or-less steady employ- ment during the shipping season. Those lower on the list are called only when there are several ships in port or when a higher-ranked man does not show up for work. On very busy days, men who were not on the list at all would be hired. These individuals are usually referred to as "casuals." Stevedores are also hired for certain work apart from the shapeup procedure. When a ship arrives in port or is about to leave, stevedores are hired for a "tie-up" or a "let-go." According to the TWT-ILA contract, four in- dividuals are hired each time there is a tie-up or a let-go. The work during each call normally lasts only a few minutes, although, on a tie-up, a crew can be kept wait- ing at dockside while the ship makes it up the river to the dock. During high winds or bad weather, linesmen can also experience other problems while mooring the vessel. However, they are entitled to 4 hours' pay for each tie-up and 2 hours' pay for each let-go, regardless of how long their efforts might take. Assignments to this work are sporadic and may occur at any time of day or night, because the coming and going of ships is sporadic and not entirely predictable. Normally this work, re- ferred to in the testimony as "lines," is regarded as highly desirable work because an employee is paid for time that, in large part, is not spent in active labor. How- ever, it is also work that comes about only occasionally, 7 One employee now on the preferred list of TWT employees, Gerald Berg, was listed by Moody with a question mark, and there is little objec- tive evidence to dispute this listing Accordingly, he has been regarded in this decision as a neutral in the factional dispute He is the only person actively employed who has been able to attain or retain this standing TOLEDO WORLD TERMINALS so lines constitute only a small part of a stevedore's annual employment, unless the lines dispatcher chooses to give him an inordinate number of assignments. Until May 23, 1984, when TWT made a substantial revision in its hiring practice, the selection of employees for lines was left entirely to the discretion of the lines dispatcher or the dock steward. They were under no restrictions, contractual or otherwise, in how they went about select- ing linesmen,8 so long as they produced enough qualified men to do the job. One further item by way of background should be noted. Between December 15 and April 15, the Port of Toledo is virtually shut down except for an occasional ship engaged in intra-Great Lakes traffic, because the locks on the St. Lawrence Seaway are closed and the lakes are, by and large, iced over. During this period of time, only a small crew of TWT employees high on the preferred list work with any regularity. They are as- signed to the warehouse, which is adjacent to the piers. At the onset of the shipping season in mid-April, there is a burst of stevedoring activity to handle ships laden with goods designed to replenish inventories of various items that have fallen in short supply over the winter. Business tapers off during the midsummer months and picks up again in the fall. In November and early December, there is a rush of work from ship owners anxious to dis- charge their cargoes and remove their vessels from the lakes before the Seaway closes in mid-December. The pattern of hours worked by TWT employees, both on unloading and on lines, necessarily follows this cycle, al- though those on the TWT preferred list enjoy a partial immunity from such fluctuations. Although Great Lakes shipping in the early 1980s has not been what it was in earlier decades, referred to by Davis as the "glory years," TWT's business has recently been on the up- swing after a disappointing year in 1982. The total number of hours worked by TWT's stevedoring employ- ees is as follows, using the total hours worked in 1981, TWT's initial year, as the base year for measuring per- centages of decline or improvement: Year Total Hrs. Worked by TWT Stevedores % Increase or Decrease 1981 43,994 1982 32,241 - 26.7 1983 49,546 + 12.6 1984 59,687 + 35 9 Total hours worked in 1985 were not available at the time of the hearing in this case. 8 The only limitation imposed on the lines dispatcher or the dock stew- ard is that a linesman is normally reprimanded if he is selected for a given crew but does not show up for work No stevedore has to accept lines and a few do not, but those who do accept an assignment were and are usually removed from further consideration if they miss an agreed-on date The dispatcher or steward is considered a fifth man on the crew and is compensated accordingly for his services in calling out the crew, although he normally did not appear at dockside while the crew is work- ing 2. Events leading up to the opening of the 1981 season 679 In 1980, the facility taken over by TWT in April 1981 was operated by TOT, which was then in its seventh or eighth year as the general cargo stevedoring company at Facility One.9 TOT had a contract with Local 1982 and did its hiring by daily shapeups in accordance with the seniority list that it established in agreement with the Union. This list essentially recognized port seniority rather than company seniority . Local 1982's elected dis- patcher, David Ray Edwards, did the hiring, both at sha- peups and for lines. From time to time, disputes arose concerning individual placements on this list , and these disputes were adjusted by a joint union -management committee that applied certain rules to determine when those who left the docks and returned might claim their old ranking and when they were required to go to the bottom of the list. In 1980, TWT principal Wills and TWT President Davis operated a general cargo company , Con Dock, at a location across the Maumee River from Facility One further upstream near the 1-280 Bridge . Con Dock em- ployed only seven stevedores who were represented by Teamsters Local 20 . Late in 1980, Local 1982, with the active assistance of the ILA and its Great Lakes District (GLD),1 ° established a picket boat near the Con Dock premises and picketed Con Dock with informational signs, claiming that Con Dock was not paying its em- ployees in accordance with area standards . Late in the 1980 season, Con Dock filed 8(b)(4) and (7)(C) charges against the ILA and Local 1982. These charges were dis- missed by the Board's Regional Office in Cleveland or were withdrawn." However, the effect of the picket boat on the business of Con Dock was severe . Davis esti- mated that this effort by the ILA and Local 1982 cost Con Dock about half a million dollars in lost revenues from ships destined for the Con Dock facility that were diverted to competitors in order to avoid the picket line. Con Dock took two further steps as a result of this inci- dent. It revised the pay scale for its Teamster -represent- ed stevedores to eliminate future contentions that Con Dock was not in fact paying its employees area standards (which the ILA has always equated with ILA wages and benefits). It also filed a civil damage suit against the ILA and Local 1982 under Section 303 of the Labor-Manage- ment Reporting and Disclosure Act for damages ansing from an assertedly illegal picket line. 9 During the 1970s, the Port Authority reserved a public berth at Fa- cility One for any stevedoring company wishing to unload a ship on an incidental or single-shot basis The rest of the piers were leased to TOT for its exclusive use. io The Great Lakes District is one of three subdivisions of the ILA It is composed of about 66 locals whose members are employed at various American and Canadian ports throughout the Great Lakes From time to time, John Baker , of Cleveland, and his brother, Chauncey Baker, have held office in the GLD, but its principal leader is and has been its long- time secretary-treasurer, Patrick J Sullivan Sullivan maintains the GLD office in Buffalo, New York, but also has an office in Washington, D C, where he serves as director of the International 's national legislative office 11 Cases 8-CC-1042, 8-CC-1043, and 8-CC-1047, 8-CP-234 and 8- CP-235 680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When TOT let it be known to the Port Authority and others that it was not going to lease Facility One for the 1981 season, Wills and Davis were interested in picking up the lease. They took several actions in the late winter and early spring in order to be in a position to submit a competitive bid and to operate the facility when vessels started to arrive in mid-April. As noted above, Wills and his associates were interested in the World Trade Center as well as the docking area. They were equally con- cerned that picketing would not resume at Con Dock, which they planned to operate in 1981, and did, in fact, operate until 1984. On April 1, Davis, who was president of Con Dock and executive vice president of Wills Trucking Compa- ny, went to Washington with his attorney, Victor Strimbu, to meet with Sullivan and John Baker. They met at Sullivan's Washington legislative office, which is located in the AFL-CIO headquarters building. The principal thrust of this meeting was to discuss the pend- ing civil suit against the ILA and Local 1982 growing out of the 1980 picketing of Con Dock and to inform Sullivan that Wills and his associates were negotiating with the Toledo Port Authority for a lease of the TOT- occupied premises for the 1981 shipping season. At this time, Sullivan told Davis that his information was that a DeBartolo Corporation subsidiary would continue to op- erate the dock under the management of Colonel Ze- plien, who had been in charge of the TOT operation in previous years. Sullivan was concerned that, if TWT took over Facility One, Teamsters-represented Con Dock employees might be hired at Facility One ("brought across the River" was his expression) and re- place the ILA-represented employees who had been em- ployed by TOT. In Sullivan's mind, TWT and Con Dock were essentially one and the same corporation. Strimbu told Sullivan that the Wills group envisioned the new operation not so much as a general cargo facility but as a bulk cargo unloading dock. He said they needed to hire about 20 employees right away but felt that the employee complement would eventually reach 40 or 50. He said they would like to hire the seven or so Team- sters-represented stevedores who had been working for Con Dock. Sullivan told Strimbu emphatically that there was no way that the ILA would roll over and permit his clients to take the jobs of ILA members, and that the ILA was not going to permit nonunion or substandard companies to enter the stevedoring business in the Port of Toledo. Strimbu told Sullivan on this occasion that, if TWT was awarded the lease on Facility One, under some circumstances the Wills corporation would recog- nize the ILA. Strimbu was emphatic that the Wills orga- nization did not want to recognize Local 1982 because they felt that the relationship between this local and other companies that had operated previously in Toledo was the reason those companies were forced to go out of business. He said he needed flexibility in manning to make the operation work and did not want to be in a po- sition of guaranteeing jobs for 28 stevedores as TOT had been doing. He also insisted that there was no way that TWT would accept the Local 1982 seniority list. Faced with those prospects, TWT would not even go into busi- ness in Toledo. Strimbu informed Sullivan that TWT would be interviewing 15 or 16 TOT employees, all ILA members, with a view toward hiring them. Sullivan received a telegram, dated April 4, from ILA General President Thomas W. Gleason in which Gleason informed Sullivan that TWO was going to receive the stevedoring contract at Toledo. Gleason directed Sulli- van to meet with TWO representatives and to conclude an agreement with them that was in line with the wages and benefits being paid in Cleveland. On April 13, these same individuals met again in Sullivan's office in Wash- ington. By this time, it appeared more likely that TWO was going to be awarded the lease for Facility One. In fact, the Port Authority held a hearing on that same day and announced the award. Sullivan was also satisfied, to use his words, that "TWT was not going to discriminate (in hiring) against ILA members," an expression that ac- tually meant that TWT was not going to hire any Team- sters to man its docks. In addition to Sullivan, both Bakers were also present on this occasion. These individ- uals then spent several hours together, going over item by item the provisions of the TOT-Local 1982 contract that governed these operations in 1980 and also review- ing an agreement between ILA Local 1317 and the Great Lakes Association of Stevedores (GLAS) covering port operations in Cleveland. Both Bakers were from Cleveland and were familiar with the operations of that port and the provisions of the Local 1317 contract, which was then about to expire.12 Davis and Strimbu were anxious to conclude some kind of understanding with ILA officials immediately be- cause they expected the first ship of the season to arrive at the Port of Toledo on April 22, the Wednesday of the following week. It was Baker who suggested that TWT simply apply the Cleveland contract to the Toledo oper- ation. This was not entirely acceptable to TWT but the suggestion formed the basis of negotiations that took place there and then. The normal pattern followed by the ILA in negotiating a contract with a new employer is to obtain recognition and then turn the matter of rep- resenting the individual bargaining unit over to the ILA local that has been chartered at the port in question. Strimbu and Davis were adamant that they would not extend recognition to Local 1982 and would not deal with it. They were amenable, however, to dealing with the ILA directly and they proceeded to do so.13 Sullivan told Strimbu that the ILA would insist that TWT hire its new employees from the old facility, i.e., from among the ILA-represented stevedores who had been employed by TOT. He insisted on the right of the ILA to nominate the dock steward, insisted that TWT observe standards on wages and benefits set forth in the master agreement covering most Great Lakes ports (the GLAS agreement), and stated that the ILA would agree to working arrangements then in effect at the Port of 12 John D Baker is currently the president of the Great Lakes Dis- trict He was formerly an official of Local 1317 in Cleveland. Baker's evasive testimony at the hearing in this case was marked by large and selective lapses of memory . I place little reliance on what he had to say 18 My decision at the hearing to reject G.C Exh 158(b) is reversed, and that document is admitted into evidence as being a part of Baker's notes of the April 13 meeting TOLEDO WORLD TERMINALS Cleveland. Sullivan suggested that negotiations leading to a full, formal agreement begin within 30 days. Based on this broad outline, the parties then began to discuss the specifics of the memorandum of understanding that would be in effect by the time the first ship was sched- uled to arrive at Toledo, and which would also form the basis of a formal, longterm contract covering the oper- ation. There is ample evidence to corroborate Sullivan's admission that the parties had orally agreed on the terms and conditions of a contract before the first employee had been hired.14 Strimbu told Sullivan at some point in these discussions that TWT would need to see ILA au- thorization cards signed by its new employees. During the course of the April 13 meeting, the parties agreed to several specific provisions in the Cleveland contract. Baker's notes indicate as much . His notes also indicate a willingness either to consider or to check out other Cleveland contract provisions and indicate that certain other provisions would be left open for further discussion. These notes also indicate that the parties went over the provisions of the TOT-Local 1982 contract, agreeing to certain of those provisions, and agreeing to omit other TOT contract provisions from their memo- randum of understanding. 15 One significant departure from normal hiring practice at ILA-represented ports was agreed on by TWT and the ILA. TWT desired to hire a cadre of stevedores to whom it could give a sufficient number of working hours each year to establish what it hoped would be a small, stable, competent work force that would also be perma- nent in character. It felt that total reliance on the sha- peup each morning did not produce these results. Ac- cordingly, it proposed, and the ILA agreed, that TWT would be allowed to employ a small group of preferred employees who would be given work each day before the shapeup began. TWT hoped that such men would be encouraged by more or less steady employment to remain a regular part of its staff. Additional men, needed when extra crews were required, would then be hired at shapeup in the traditional fashion. The ILA has not per- mitted this practice at many ports, but it was anxious to get its foot in the door at TWT, so it acceded to TWT's proposal, feeling confident that all the employees on the preferred list would turn out to be ILA members. TWT learned on the same day that they had been for- mally awarded the stevedoring contract for Facility One by the Port Authority. This announcement took place in Toledo. TWO, the actual recipient of the contract, was represented at the hearing by Frank Miller, who is a principal in TWI, its lessee for the foreign trade zone. Miller said that TWO intended to recognize current union jurisdiction, meaning ILA Local 1982 jurisdiction on berths A-1 through 7 and Teamsters Local 20 for the 14 After a luncheon recess at the hearing, Sullivan backed away from this statement , insisting that the ILA knew better than to enter into a pre- hire agreement, but I credit his first statement, which was given without the opportunity for extensive reflection 15 Sullivan testified that, as early as February 1981, Stnmbu had told him that TWT would hire ILA members but would not negotiate with Local 1982 or with Moody This is exactly what TWT proceeded to do Sullivan's testimony on this point is uncontradicted Stnmbu never testi- fied, notwithstanding his intimate connection with many facets of the effort to bring TWT and the ILA together in 1981 681 foreign trade zone . (The Teamsters represent about 10 employees employed by TWI at the World Trade Center.) Moody reported this statement by phone to Sul- livan. His happiness, however, at the prospective recognition of Local 1982 was to be short lived. On April 15 or 16, TWT began to hire employees for its preferred list. Davis testified that it notified various unions, including Con Dock employees, of its intention. No interview no- tices were placed on the former TOT premises at Facili- ty One. Only former TOT employees applied, however. Moody learned quite by chance about the hiring inter- views, which took place at a local Holiday Inn. Moody, Edwards, and former TOT employee Matthew Bennett went to the Holiday Inn and met Davis, Wills, and Marine Superintendent James Hardwick, who were en- gaged in conducting interviews. Moody noticed that they were using the Local 1982 seniority list during the interviews. In fact, no one was interviewed whose name did not appear on that list. Moody, Edwards, and Ben- nett all applied for jobs. I credit Moody's testimony that, during the course of his conversation with Davis, he introduced himself as the financial secretary of Local 1982, informed Davis that Local 1982 actually worked the Toledo dock, and told him that Local 1982 was ready to sit down and negotiate with TWT. He indicated that Local 1982's attorney would contract TWT. Davis replied that TWT was deal- ing strictly with the ILA, that there was an understand- ing between TWT and the ILA, that Sullivan knew what they were doing, and, if Moody wanted to find out more about what was going on, he should contact Sulli- van. This is just what Moody did. Sullivan told Moody by phone to come to the Great Lakes District Office in Buf- falo on Friday, April 17. Moody did so. In a conversa- tion that took place on that date in Sullivan's Buffalo office, Sullivan told Moody that TWT was going to take over Facility One and was going to start hiring people. He informed Moody that the ILA agreed to let TWT pick 13 preferred men from the seniority list for initial hire each day. Moody protested that the ILA should not "allow" TWT to set up a preferred list. Sullivan's reply was that the ILA did not allow TWT to do anything be- cause TWT would have to allow the ILA to go through the gate before it could object to anything. He advised Moody that it would be best to work from the "inside out," noting that the rest of the employee complement would be taken from the Local 1982 seniority list "unin- tegrated," i.e., without including any Teamster-represent- ed employees from Con Dock. He further informed Moody that the ILA had agreed to accept the Cleveland agreement for the TWT operation, but assured him that Local 1982 would be brought in as bargaining agent within 30 days. He said that Wills and associates were going to close Con Dock, join the Illinois Great Lakes Association of Stevedores, and drop all charges and civil suits arising out of the 1980 picketing incident at Con Dock. Following this conversation, Moody, Sullivan, and some other GLD officials who were with them in Buffa- 682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lo engaged in a conference call with Strimbu and Gerald Lackey, the ILA's Toledo attorney. They discussed many of the points that Moody had previously discussed with Sullivan. Sullivan received confirmation from Strimbu that TWT had in fact secured a lease from the Port Authority and that it was intending to operate pri- marily as a bulk cargo facility. Sullivan reiterated his demand that TWT hire ILA members and threatened to picket TWT if it did not. They discussed the use of the Local 1982 seniority list. All agreed that the Company would be allowed to hire 13 preferred employees apart from the shapeup. On the next point, Moody's version and Sullivan's version of the conversation with Strimbu disagree. Moody testified that the parties also agreed that all employees hired after the preferred men were given work would be hired from the Local 1982 seniority list unintegrated, meaning that no Teamsters would be brought over from Con Dock. Sullivan testified that Strimbu adamantly refused to recognize or utilize the Local 1982 seniority list. I credit Moody's version, not only on the basis of demeanor, but also by virtue of the fact that Moody's version of this conversation described what eventually took place at the TWT operation throughout the 1981 shipping season. As more fully de- scribed later, Moody, as dock steward, utilized the Local 1982 hiring list for shapeups throughout 1981, calling off the names of members in the order they appeared on the list to hire nonpreferred TWT employees. In fact, Syph did the same thing for the balance of the 1981 season after he replaced Moody on November 3. Strimbu told the ILA representatives in the course of this phone conversation that TWT would agree to the provisions of the Cleveland contract concerning working conditions, that TWT would interview employees from the ILA pool (it had already begun this process), would grant formal recognition to the ILA on the presentation of authorization cards signed by TWT employees, and would execute a memorandum of understanding when such cards were in hand. He also said that TWT would not recognize Local 1982, but agreed to recognize Moody as dock steward. Toward this end, Sullivan told Strimbu that he would have Moody get the authorization cards signed and leave them at Lackey's office in Toledo. They agreed that Davis would prepare a list of the 13 preferred men who had been selected for employ- ment and that this list would be furnished to Moody to assist in the solicitation of signatures. Moody testified credibly that, at this time, no one on the union side knew the identities of the preferred men. In the course of the conference call, Sullivan informed Strimbu that he was appointing Moody as the dock steward. After the call was completed, Moody obtained ILA pledge cards from Sullivan and returned to Toledo. On Saturday, April 18, he went to Lackey's office and picked up the list of preferred men. It contained 13 names, including Moody's, but it did not contain the names of Syph, Harold (Buck) Chevalier, who is Syph's principal assistant, and David Ray Edwards, who is a Moody partisan and who became lines dispatcher during the 1981 season. These three names were added to the list a few days later. During his visit to Lackey's office, Moody objected to Lackey that the names found on the preferred list were "company-oriented" individuals. Lackey's reply to Moody was to "cool it." He assured Moody that Local 1982 was going to be brought into the agreement in 30 days and it would be best simply to let things evolve into Local 1982 control. On April 18, Moody obtained 12 signatures and was able to get one more on Monday, April 20. On that day he turned the cards in at Lackey's office. April 20 was the first day on which any stevedores actually worked for TWT. A total of seven employees were paid for work on that day. Company records in evidence indicate that a total of 92 employees were listed as having been hired on that date, including all the men on the preferred list. On that date, a memorandum of understanding was executed in Toledo by Davis for the Company and Lackey for the ILA. Two days later, the same document was re-executed in Washington by Wills for the Compa- ny and Sullivan for the ILA. About 6:30 a.m., Wednes- day, April 22, the Angel Glory arrived at the TWT dock and was tied up at Facility One by a four-man crew dis- patched by Ray Edwards. Some 49 men went to work that day for the Company. TWT was off and running. A statistical summary of the facts surrounding the ini- tial recognition of the ILA as the bargaining agent for TWT's stevedore employees is as follows: Total number of unit employees, preferred, non- preferred, and casual, who worked for TWT during the 1981 season-158 Total number of unit employees who worked more than 50 hours in 1981-85 Total number of unit employees who worked more than 100 hours in 1981-74 Total number of unit employees who worked more than 350 hours in 1981 and thereby qualified for preferential treatment in 1982 and for union fringe benefits-41 Range in number of stevedores hired by TWT during the first 10 days of operation in April 1981- 5 to 69 Total number of ILA authorization cards fur- nished to TWT in support of the ILA claim for rec- ognition-l3 3. The 1981 season through November 3 a. The memorandum of understanding On April 20, Davis and his attorney, Strimbu, met in Lackey's office in Toledo and reviewed the authorization cards that Moody had left with Lackey. There was some discussion about permitting Local 1982 to become a party to the agreement. Lackey told Davis that the ILA preferred to work through its locals because it was simply a more practical way to operate. He said that economic matters were normally worked out by the ILA and the trade association (GLAS), while the local takes care of local matters. TWT responded that conceivably this might be acceptable at some future time, but it was not acceptable then. They noted that Wills and associates were accustomed to operating under a single master agreement, namely a Teamsters agreement, and they were not used to local negotiations. They feared that TOLEDO WORLD TERMINALS local negotiations could go on for months while the Company was expecting a ship at the dock in 2 days. Lackey and Davis then signed a memorandum of under- standing that had been prepared. The memorandum of understanding recited the fact that TWT had entered into an agreement with TWO to operate the dock area and that another enterprise, TWI, had entered into an agreement with TWO, the lessee of the Port Authority, to operate the foreign trade zone. It further recited that TWT had secured experienced em- ployees to perform longshore and warehousing work and had placed 15 of them on a preferred hiring list. The document noted that the ILA had presented cards signed by a majority of the men on the preferred list and that it was being recognized as the exclusive representative of TWT's employees. The memorandum explicitly forbade the ILA from assigning or delegating responsibility for the administration of the agreement to any local but stated that, at some future time , the parties would discuss the appropriateness of permitting Local 1982 to become a party. The agreement incorporated by reference the Cleve- land agreement covering contractors with Local 1317, but explicitly stated that TWT would not recognize any past practices or agreements that existed at the Port of Toledo. Certain specific revisions to the Cleveland agreement were then set forth, one of which was that there would be no guarantees of employment for crews and that the dock steward would obtain employees in excess of those named on the preferred list. TWT agreed to join GLAS and agreed to pay fringe benefits into an escrow account in the same amounts that were required under the Cleveland agreement. One hundred hours of work would be required as a miminum for eligibility for health and welfare coverage. TWT also agreed to a checkoff on presentation of ap- propriate authorizations , stating that any dues and initi- ation fees checked off would be transmitted to the Great Lakes District of the ILA at Buffalo, New York. Both the terms of the agreement and the understanding of the parties were that the parties would meet again within 30 days to begin negotiations for a longterm agreement. After this memorandum had been executed in Toledo, it was taken to Washington, where Sullivan and Wills signed it on April 22. In his testimony in this case, Davis asserted that the reason for TWT's refusal to recognize and deal with Local 1982 was that it held Local 1982 responsible for the picket boat incident in 1980, which resulted in a sub- stantial financial loss to Con Dock . He also stated that he had grave reservations that he could negotiate a competi- tive contract with Local 1982, but felt he could do so with the ILA. He was upset with Local 1982 because of earlier litigation with Local 1982 over fringe benefit funds and because Local 1982 insisted on nine-man crews for unloading bulk ships, as compared with three-man crews that the Teamsters permitted. Davis also felt that employees supplied in years past by Local 1982 to other stevedoring companies had a tendency to "disappear" during the workday from their oversized crews and thus be paid for time never worked. Davis also made a similar statement in an affidavit , given on March 26, 1982, 683 during the district court litigation between the ILA and Local 1982 members. In that affidavit Davis flatly stated that "Toledo World Terminal, Inc., would not have en- gaged in the stevedoring business in Toledo if a condi- tion of doing so was recognition of and bargaining with Local 1982. Toledo World Terminal, Inc., will only deal with Local 1982 if required to do so by operation of law." b. The operation of the docks As ILA dock steward, Charles Moody operated the daily shapeups until November 3, 1981. Shapeups were normally held at 7:30 a.m. and occasionally at 12:30 and 6 p.m. They were held, however, only if there was load- ing or unloading work to be done and if there was work available in the warehouse. As a preferred man, Moody was assured of employment before any nonpreferred ap- plicant was hired. As dock steward, Moody was contrac- tually assured of employment so long as anyone was hired. If a total of nine or fewer men were hired, the dock steward was expected to do productive work. If more than that number were hired , he had no assigned duties but was paid simply to be on the premises. These same practices were followed after Moody was replaced by Cleo Syph. Preferred men were normally notified as they left work the preceding evening, or possibly by phone, that they would be needed the following day. They reported to the dock and went directly to assigned crews. For the benefit of all other stevedores who wanted to work on a particular day, TWT placed a message on a telephone tape the previous evening giving notice whether there would be one or more shapeups, what time they would take place, and how many crews would be needed. Based on this information, a stevedore who was not on the preferred list could decide whether it was worth his while to go to the warehouse the following day and make himself available for employment at the shapeup. At the appointed time, nonpreferred applicants for em- ployment would gather about a podium erected in the hiring area where Moody and the marine superintendent began the shapeup process . It usually lasted 15-20 min- utes. During the 1981 season, Glenard Staler normally attended shapeups in the capacity of manne superintend- ent or foreman, although Floyd "Fats" Tefft occasional- ly substituted for him. Both Staler and Tefft had served as foremen for TOT and had many years of supervisory experience on the docks in Toledo. In 1982, Tefft attend- ed the majority of the shapeups, while Staler performed other duties. It was the responsibility of the marine superintendent to determine in advance of the shapeup how many men would be needed for the day and what classifications of employees would be needed . He normally obtained this information by looking at a ship 's manifest or its loading plan and occasionally by actual inspection of the cargo hatches. The more skilled classifications were crane op- erators and signalmen. TWT also hired forklift operators, front-end loaders, checkers, and ordinary laborers. Most experienced stevedores performed several jobs and nor- mally preferred the highest paying slots available. The 684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD desirability of these jobs, however, could be affected by the length of time that work might be available for a par- ticular crew. There were "short shots" and "long shots"-assignments lasting only 4 hours and assignments lasting 8 hours or more. A long shot as a laborer might, under some circumstances, be preferable to a short shot as a forklift operator, although the latter classification paid slightly more than ordinary labor. Over the years, stevedores became "type cast," i.e., they were normally regarded by the dock steward and the marine superin- tendent as checkers, forklift operators, crane operators, and the like. It goes without saying that some could per- form these functions better than others, and some went about their tasks with greater interest and enthusiasm than others. At the beginning of shapeups in 1981, the marine fore- man furnished Moody with a handwritten list of the jobs available that day. Moody wrote or posted that list on a blackboard in plain view of the assembled stevedores. There is a conflict in the testimony about exactly what occurred at this point in the shapeup routine. I credit Moody's corroborated testimony" that he followed the same procedure that dock stewards or dispatchers had followed with the previous employer, TOT. Moody called off the names on the Local 1982 seniority list in order of their appearance on that list.17 If an individual was present, he signified his availability for hire and stated the job he wanted. His name was then placed with the job requested and the job was stricken from the list of available openings. In order to be hired at shapeup, a stevedore had to be physically present. If he did not re- spond as his name was called, he was regarded as un- available for hire and the dock steward proceeded to the next name on the list. Lines assignments in 1981 until November 3 were made by Edwards, who was placed on the preferred list as the 16th man. After some misunderstanding, it was agreed between the ILA and TWT that Edwards, who had performed both this function and the shapeup hiring function for TOT, should be compensated as the fifth man at a "tie-up" and as the third man at a "let-go." He 16 Among the corroborating factors is the admission that, in 1981, there was in fact a blackboard available in the shapeup area that was used as part of the shapeup routine It was later removed Syph agreed with this facet of Moody's testimony . He recounted a tuck played on him by members of the Moody faction when he took over the hiring function as dock steward on a busy day in November 1981 On the occasion in ques- tion, Syph called off the names of stevedores in order as they appeared on the Local 1982 seniority list Moody partisans present whose names had been called all responded that they wanted laborers jobs, leaving open the more skilled positions that they normally claimed This meant that Syph was put in the position of filling those jobs with men further down the seniority list who, in the judgment of the marine foremen, were less qualified than the Moody supporters who normally were hired for those positions The foremen took Syph to task severely for failing to provide the Company with the best available employees and warned him not to let it happen again. It was not long thereafter that he stopped using the Local 1982 seniority list at shapeups This incident could not have occurred unless job applicants at shapeups in 1981 were in the habit of selecting their own jobs from a list of available openings, contrary to the TWT contention that Moody merely called off names and left it to the marine foreman present to make assignments of applicants to avail- able positions as the men responded 17 In 1981, the Local 1982 seniority list was posted on company prem- ises in or near the hiring area was paid, as were all linesmen, as a laborer, which is the lowest rate in the contract. Edwards was not required to be present as the ship was being docked or untied and he rarely was. It was his responsibility to provide lines crews as requested, regardless of the time of day or night the request might be made. He performed this function by obtaining a list of names and phone numbers of steve- dores who sought lines assignments and by phoning them as requests for men were made by the Company. Ed- wards was free to hire whom he wanted for lines and he utilized the Local 1982 seniority list for this purpose. He did not hire individuals in the order that their names ap- peared on that list but attempted a rotation so that the work would be spread out. His testimony, which I credit, and the records that he submitted, which I find generally reliable (although they may have contained some incidental errors) indicate that, in 1981, Edwards made lines assignments to a total of 116 men. Most of the persons to whom lines were assigned received from 10 to 20 hours of employment. There is no evidence that Syph partisans were discriminated against in these assignments. Many received close to 20 hours of work and Syph him- self, who was working only part time in 1981, received 10 hours of lines. It is arguable from these records that Edwards, a strong Moody partisan, gave a few hours above the average to Moody supporters in one or two instances. Moody was anxious that Local 1982 be brought into the picture as the collective-bargaining representative in lieu of direct participation by the ILA itself. He repeat- edly asked Sullivan when this would occur and Sullivan always gave him a standard reply that he was working on the matter and that it should happen soon. To press his point, Moody and his attorney, Ted Iorio, went to Washington on May 15 and met with Sullivan in the Tat- ter's office. At this same time, Moody was given the task of solic- iting and submitting checkoff authorization forms to TWT. He had been instructed by Sullivan to use Local 1982 checkoff forms and he did so, obtaining the signa- tures of all the stevedores who usually worked on the docks. These cards were given to TWT with a cover letter from Moody outlining what dues the ILA expect- ed TWT to remit. He specified the Local 1982 bank ac- counts to which TWT should send pension and health and welfare payments. The normal ILA practice, em- bodied in the checkoff form, was that the local would re- ceive 10 cents an hour for each hour worked by a member, that the International would receive 11 cents an hour, the Great Lakes District would get 3 cents an hour, and that the local would also receive, for each member, $6 per month for the 8 months that constituted the shipping season (April through November). Moody specified in his cover letter the account to which Local 1982 dues should be sent. Early in May, Moody turned the authorization cards into the company office. Strimbu called Sullivan and told him that TWT would not recognize Local 1982 checkoff cards because it would not recognize Local 1982. Sulli- van then asked him when TWT would recognize Local 1982. Strimbu simply said, "We're new. We're employing TOLEDO WORLD TERMINALS Local 1982 members. We will consider it sometime in the future." On May 20, at a meeting attended by Moody, Baker, Davis, and James Hardwick, TWT's gen- eral manager, Moody, asked Davis why dues were not being deducted. Davis replied that no dues were being deducted under the checkoff authorizations because Local 1982's name appeared on those forms and TWT refused to recognize Local 1982 as the bargaining agent of its employees. What transpired then is set forth in findings made a year or so later by U.S. District Judge Don Young in litigation filed against the ILA by Moody and other Local 1982 members: Paragraph 7 of the Agreement . . . provides that upon receipt of proper authorization cards, TWT would deduct dues and transmit them to the Great Lakes District of (ILA). The evidence leaves no doubt that the plaintiffs and a large number of other members of Local 1982 did in fact sign authorization cards. Copies of one hundred and twenty-six (126) such cards were of- fered in evidence . . . . However, all of these cards provide that the dues are assigned to Local 1982. The uncontradicted evidence shows that when these cards were presented to TWT, it refused to accept them because of its hostility to Local 1982. The defendant's officers who were present at the meeting told TWT that it should strike out the name of Local 1982 and pay the moneys directly to the defendant (ILA). The evidence leaves no doubt that most, if not all, of the members who signed the cards would not have consented to any such change in the agree- ments which they had executed. To say the least, the action taken amounted to a conversion by the defendant, if not an embezzlement of the funds paid on the strength of these cards.18 As part of the agreement whereby Local 1982 was stricken from the checkoff authorization cards that Moody had presented to TWT, the parties agreed that the dues to be deducted should be placed in an escrow account in an Akron bank. On June 11, Moody and a company representative, Michael Hoff, signed a bank de- posit card purporting to open a joint ILA or Local 1982- TWT account for receiving deposits of dues payments from TWT to the ILA. Moody found out in the fall of the year that in fact this account had never been opened and that all checked off dues had been directly remitted by TWT to the ILA's Great Lakes District. The disposi- tion of those dues was one of the subjects of the afore- mentioned lawsuit, which Local 1982 members filed in the fall of 1981 against the ILA.1 s Between June and August 1981 Davis and Strimbu met with ILA representatives, principally Lackey and John Baker, but excluding Moody, a total of five times for the purpose of working out the provisions of a 18 Charles Moody v Longshoremen ILA, Case 81-712, U. S. District Court for the Northern District of Ohio, Western Division, memorandum and order of Judge Young dated April 2, 1982 19 The actual removal of the phrase "Local 1982" from the checkoff cards was accomplished by Davis' secretary on his instructions 685 formal contract between ILA and TWT.20 On several of these occasions TWT was again requested by the ILA to recognize Local 1982, but each time TWT refused. I credit Moody that he did not learn that negotiations were in progress until he found out about it on August 11 from Strimbu at a grievance meeting. During this same period of time Moody and Baker had met with var- ious TWT representatives to discuss grievances that were being filed by various TWT employees. Approxi- mately 86 grievances had been referred for disposition at this level but, by the end of the summer, only a few had been resolved. Moody furnished Strimbu and Baker with copies of these grievances at the August 11 meeting. When, in mid-August, Moody learned that negotia- tions were in progress for a new contract, he voiced strong objection, complaining that TWT was not even living up to its current agreement (the memorandum of understanding). Nevertheless, negotiations continued. On September 14, Hardwick received a letter from Moody informing him that certain pending grievances were going to be taken to arbitration. In fact, none were taken to arbitration and none of the 3700 grievances filed against TWT since its arrival at the Port of Toledo have ever gone to arbitration. Syph testified that, since he became dock steward in November 1981, the ILA has never disagreed with any company position on a griev- ance.21 On September 10, TWT and the ILA signed a con- tract covering the TWT operations in the Port of Toledo. Sullivan signed on behalf of the ILA and Wills signed for TWT. The contract was made retroactive to April 20 and was scheduled to expire on December 31, 1983. It was not referred to the membership for ratifica- tion, although ratification is the normal ILA practice and was the regular practice of Local 1982 before the advent of TWT. In explaining this departure from standard pro- cedure, Sullivan testified that the September 10 contract was actually a local agreement concluded by the GLD, adding that there were no GLD procedures or bylaws covering referral of this particular kind of contract for ratification because it was an unusual type of agreement for the GLD to negotiate. Normally any agreement con- cluded by the GLD was distnctwide in its application. One provision of the September 10 contract that was new and noteworthy was the provision giving hiring preference to so-called "experienced" men. The agree- ment continued the preferred listing of the 16 individuals referred to as "preferred" men but established a category of individuals who had worked an aggregate of 1000 hours or more during the preceding season. It required that these individuals be given preferment in hiring after the list of 16 preferred men was exhausted. After hiring all experienced men, as defined therein, the dock steward was then free to hire "from other available sources." This ranking applied only to hiring at shapeups. It did 20 Sullivan testified that, in his view, Moody's proper function was to enforce the contract at the dock and see to it that TWT did not hire .,new people," meaning Teamsters 21 Occasionally Moody was able to adjust a grievance by discussing it with the marine foreman . Such grievances never came to the attention of the union-company committee at step 3 of the grievance procedure 686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not govern selection of employees for lines. Because TWT did not have available to it the records of its pred- ecessor, it necessarily had to leave to the judgment of the dock steward, for the balance of 1981, the determina- tion of which candidates for employment had worked 1000 or more hours for TOT during the 1980 season. In fact, they ignored this provision entirely. The contract also imposed on the Union the responsi- bility to maintain, administer, and operate an employ- ment office and obligated the Company to obtain its em- ployees from this employment office unless the Union was unable to furnish it with qualified individuals. The contract set forth the procedure outlined above for "req- uisitioning applicants." It required the Union to furnish the Company with a list of its members and their ad- dresses and phone numbers, if any. The contract made no mention of Local 1982 nor did it give any recognition to the steward or dispatcher elected by the membership of Local 1982. It did, howev- er, set forth a rate of pay for stewards and outlined some of the steward's powers and duties. Shortly after the exe- cution of this agreement, an executive board meeting of Local 1982 was convened. It was attended by Moody, Robert Highsmith, Richard McGoffney, Henry Swayze, James Del Rio, and Kermit Jones Sr. The sense of this meeting was that Local 1982 had been deceived into thinking that it would be brought into ILA-TWT negoti- ations as a party. To use Moody's words, "trusting the ILA did not appear to be the way to go." The executive board authorized the filing of unfair labor practice charges and a decertification petition. On September 23, a membership meeting was held that was attended by about 80 members of Local 1982. Those in attendance at this meeting ratified the action of the executive board and signed cards to be used as a showing of interest to support the holding of a representation election. On October 2, 1981, Moody, in his own name, filed a decertification petition (Case 8-RD-1046) and a certifica- tion petition (Case 8-RC-12617) covering the TWT bar- gaining unit. He also filed an unfair labor practice charge against TWT (Case 8-CA-15245), alleging that TWT had violated Section 8(a)(1), (2), and (5) of the Act. The charge proceeded on a successorship theory, stating that TWT was a successor to TOT and was thereby obligat- ed to recognize Local 1982. Having failed to do so and having recognized the ILA, TWT was, in Moody's view, guilty of violating the Act. Not long thereafter, Local 1982 also filed internal union charges under provi- sions of the ILA's constitution and bylaws, as well as the constitution and bylaws of the GLD, charging miscon- duct by the Great Lakes District executive board and the ILA for placing Local 1982 in a de facto trusteeship, by failing to make it a part of the TWT contract, and by usurping its functions as the local in charge of handling day-to-day union business in Toledo. On October 5, 1981, Robert L. Moody Jr., Charles Moody's older brother, also filed internal charges against 11 TWT em- ployees, most of whom were preferred men,22 claiming 22 Those individuals named as Respondents by R Moody to internal union charges were all Syph faction members-Bollman, Burkhard, that they performed work outside their assigned classifi- cations, thereby depriving other ILA members of work opportunities. The filing of charges against TWT and the filing of two representation petitions, one of which would decer- tify the ILA, hit ILA offices in New York and Washing- ton like a bombshell.23 Immediately on receipt of the pe- titions, Sullivan phoned Moody and asked him what he was doing. Moody's reported reply was that filing peti- tions and a charge was his way of "getting the Company moving" in the direction of recognizing Local 1982. Sul- livan told him in the course of the phone call that he did not think it was proper for Moody to do this because of all the effort the ILA had put forth to obtain recognition and to work out an agreement to protect ILA members. He flatly told Moody, "We can't stand for this." Moody's reply was that the members of Local 1982 did not want to displace the ILA but merely wanted recog- nition for the Local. Sullivan then phoned Thomas W. Gleason, president of the ILA. Sullivan recommended to Gleason that Moody be replaced as dock steward. Gleason agreed. Sullivan also recommended an investigation be initiated to determine whether the ILA should place Local 1982 in trusteeship. Gleason agreed to that recommendation. On October 12, a committee was appointed by Gleason to determine whether a trusteeship should be established. The committee was composed of GLD officers John Baker, Chauncey Baker, and Harrison Tyler. Shortly after this committee was created, John Baker went to Toledo to conduct an investigation. His investigation consisted of going to Lackey's office, making copies of the charge and petitions (which he forwarded to Gleason and Sullivan), speaking to Syph, and returning to Cleve- land. He did not notify Local 1982 or any of its officers that an investigation was underway nor did he seek any explanation from Local 1982 concerning the activities that were being questioned. On October 21, the commit- tee sent a telegram to Gleason recommending that Local 1982 be placed in trusteeship, that its officers be re- moved, and that Moody be removed as dock steward. Having learned of this effort, Moody took it on him- self to call ILA officials to press his case. He got a run- around% On October 22, he called Sullivan. Sullivan told him to talk to John Baker. On October 23, he called Baker. Baker told him to call Lackey. On October 26, he again called Sullivan. They had an angry conversation in which each called the other various names. Sullivan ac- cused Moody of dereliction of duty as a steward in not processing grievances. Moody reminded Sullivan that he had presented 86 grievances to John Baker and Strimbu Chevalier, Kutcher, Enchson, Kristoff, Loveless, Ludlow, J Rizo, L Victorian, and Cleo Syph. 23 The first set of representation petitions were filed in C Moody's own name C Moody was apparently afraid that , if the Local were placed under trusteeship , the trustee would withdraw any petition or charge filed in the name of the Local On October 31, 1981, he filed addi- tional petitions making it clear that he was seeking certification for Local 1982, not for himself personally, as the bargaining agent for TWT em- ployees These petitions are still pending and are blocked by the penden- cy of the charges in the present case (Cases 8-RD-1187 and 8-RC- 12949) TOLEDO WORLD TERMINALS at the meeting of August 11 and that nothing had been done about them. He also said he had 74 more griev- ances to take up at the ILA-company level. Sullivan hung up. During October, John Bowers, executive vice presi- dent of the ILA, phoned Cleo Syph from New York concerning the pending petitions . At that time Syph was on the executive council of the Great Lakes District, al- though he held no office in Local 1982. Bowers asked Syph what he knew about the petitions. Syph said he was unaware of them and expressed surprise and disbe- lief that Moody would have filed them. On November 2, 1981, Gleason sent Syph a lengthy telegram, in which he informed Syph that the ILA exec- utive council had approved the placing of Local 1982 in trusteeship. Copies of the telegram were sent to Moody and other officers of Local 1982. The stated reason for the trusteeship was "activities of the officers and certain members of the Local who are presently attempting to remove the ILA as the collective-bargaining representa- tive with Toledo World Terminals, Inc." The telegram also stated that Syph was being appointed as the trustee for Local 1982. Gleason directed him to take charge of the books and assets of the Local and to arrange to con- duct its internal affairs. Syph was also told that he would continue to act under Gleason's supervision and direc- tion, and that he should make a written report to Glea- son concerning the status of the Local's books and records and its affairs. The telegram served to suspend the Local's officers and to direct them to cooperate with Syph in the performance of his duties as trustee. In an affidavit given a few days later in the course of litigation in the U.S. district court, Sullivan stated Moody's re- moval came about, in part, because he had filed represen- tation petitions and an unfair labor practice charge. On the same day, Sullivan sent telegrams to Syph and Moody informing them that Moody was being removed immediately as ILA dock steward and that Syph was re- placing him. TWT was also notified by Sullivan of this move. At that point a fratricidal war erupted on the Toledo waterfront. It is still in progress. 4. November 3, 1981, through the winter of 1981- 1982 I credit the corroborated testimony of Moody and Ed- wards that, on the morning of November 3, 1981, Syph24 arrived at the dock waving the telegrams he had received appointing him as trustee for Local 1982 and appointing him dock steward. He screamed at Edwards, "You-are done. You and the Moodys are done." He continued to rage and screamed at Edwards several times, "You're fired. You don't know how much power I got." Syph also screamed at Robert Moody, who was standing nearby, "I'm a professional -. I know how to - a -. You're through. You're fired, you s.o.b." Later that morning Edwards reported these statements to Staler, the foreman, and asked Staler whether Syph 24 Syph was a thoroughly unreliable witness Not only was his de- meanor bad, his testimony was replete with contradictions and failures to give explanations to basic questions posed to him . I would not credit any testimony given by Syph that was contradicted by any other witness 687 had the power to fire him. Staler said that he did not. However, from that point forward Edwards ceased to act as lines dispatcher and worked as a laborer or forklift operator in the loading and unloading operation. Syph took over the job of hiring linesmen. On the same day, Syph and both Bakers went to the Local 1982 business office, which is located in an old building on Summit Street a few miles from the dock. They entered the office, changed the locks on the doors, and phoned Moody at the dock. They told Moody that the Local had been placed in trusteeship, that they were taking over the office, and demanded all books and records. Moody objected to this procedure but to no avail . A week later, Moody gave Syph copies of the Local 1982 books and records, but retained the originals in his possession . TWT recognized this change in stew- ardship on the dock and immediately allowed Syph to replace Moody at the morning shapeup and to enjoy the privileges on its payroll reserved to the ILA dock stew- ard. For the balance of the 1981 season Syph continued to call the roll of the Local 1982 seniority list at sha- peups and to assign work in the same order that Moody had used. Moody was reduced to the status of an ordi- nary stevedore but retained, and still retains, his place on TWT's preferred list.25 On November 4, 1981, Chevalier, who later became assistant dock steward, filed with the ILA internal union charges against Moody and other officers of Local 1982. The text of his charges was drawn up by Lackey. Chev- alier charged that Local 1982 officers were guilty of con- duct detrimental to the welfare of the ILA by filing a decertification petition to remove the ILA as the bar- gaining representative of TWT employees, by calling and holding secret meetings and giving notice of those meetings only to those Moody wished to participate, by expending Local 1982 funds without proper authoriza- tion, and by failing to deliver books and papers to the trustee appointed to take charge of the Local. On No- vember 9, Gleason appointed both Bakers and Tyler to a committee that was instructed to investigate and report to the ILA on Chevalier's charges. They were directed to hold a hearing, permit "Brother Moody and other sus- pended officers" to be heard, and file a written report with recommendations. Moody was notified that the hearing was scheduled to take place at a Holiday Inn in Toledo on November 18. It took place on that date. Over objection of one of the charged parties, Chevalier's original charges were amended to include, among the al- legations of conduct detrimental to the ILA, that Moody had filed an unfair labor practice charge against TWT on October 2.2 6 No decision has ever been made by the 25 Because of contractual privileges accorded to the dock steward, the demotion of Moody to ordinary stevedore status carried with it a very substantial change in Moody's earnings. A comparison of those earnings with Syph's earnings for 2 years, for which documentation is found in the record, is Moody-gross earnings for 1983, $ 18,351 and for 1984 $27,370, Syph-gross earnings for 1983, $52,259 and for 1984, $60,384 26 Baker testified at the hearing in this case that no evidence was ad- duced at the November 18 hearing that Moody had conducted any union meetings secretly or undemocratically or that Moody had spent union funds without proper authorization 688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ILA concerning these charges, perhaps because of the suit in U.S. district court, which was filed by Moody and others against the ILA, and the order of the court, which was issued on November 19, the day following the hearing by the ILA committee. As suggested previously, Moody's response to the ILA's imposition of trusteeship and the pressing of inter- nal union charges against officers of Local 1982 was a suit in the U.S. District Court for the Northern District of Ohio (Western Division), filed in early November, to restrain the ILA from interfering with the operations of Local 1982. On November 19, Judge Young entered a preliminary injunction, accompanied by an opinion from the bench, restraining the ILA from imposing a trustee- ship on Local 1982, from removing the officers of Local 1982, "and otherwise interfering with the operations of Local 1982." He made it clear that he was leaving a final resolution of the underlying dispute between Local 1982 and the ILA to the NLRB and was taking action solely to preserve the status quo because he felt, if he did not do so, that Local 1982 would cease to exist by the time the Board could resolve the issues between the parties and that any resolution it might make would be rendered moot by the march of events. Immediately thereafter, Moody wrote letters to Syph and to ILA officials requesting that Syph refrain from making any further statements or taking any further action on behalf of Local 1982, that Local 1982 books, records, keys, and property be returned to Moody, and that Local 1982 be informed immediately of the present status of all pending grievances. Moody also wrote to Sullivan asking what had happened to money that had been deducted from employee checks pursuant to Local 1982 checkoff authorizations and that had supposedly been placed in an escrow account. He demanded specif- ics regarding name of the escrow agent, the number of the account, and the total amount of funds. In another letter, Moody asked Sullivan to remove Syph as dock steward and to substitute Edwards, the elected dispatch- er of Local 1982, in his place. The replies to Moody's various letters, as well as his earlier correspondence , came from different ILA officials and representatives. Lackey wrote Moody that hence- forth his interest in the processing of grievances was wholly unofficial and merely that of any stevedore on the docks, since Local 1982 had no contractual relation- ship with TWT and had no authority to file or process grievances on behalf of any TWT employee. Lackey of- fered Moody an opportunity to sit down and discuss out- standing differences with Sullivan at Sullivan's office in Washington. Early in December, Gleason wrote to Moody and other Local 1982 officials stating that "it has always been the International's position that any griev- ances within the ILA should be handled in the first in- stance within our own organization, rather than be sub- mitted to the National Labor Relations Board or other government agencies." Gleason then appointed both Bakers and Tyler to serve on a committee to investigate certain charges filed in October by Moody and about 100 members of Local 1982 against the ILA executive coun- cil, the Great Lakes District executive board, and vari- ous Syph supporters who were members of Local 1982. In a later communication, a hearing on those charges was set for December 18, although it was not held on that date because Moody requested a postponement. In fact, such a hearing has never been held. During November and December 1981, Syph and his supporters were also engaged in a third alternative strat- egy aimed at securing their position as the representa- tives of Toledo stevedores. In addition to having Local 1982 placed in trusteeship and filing internal charges aimed at ousting Moody and other officers from posi- tions of power in Local 1982, Syph filed with the ILA an application to charter another general cargo local at the Port of Toledo. This application was forwarded to ILA headquarters on December 23. On December 29, 1981, he sent to the ILA a list containing names of per- sons who had signed union authorization cards, styled "pledge cards," which designated the ILA as the bar- gaining representative of the signer without any refer- ence to Local 1982. The collection of these pledge cards was an ongoing effort, which extended far beyond the day the initial set of cards was mailed to ILA headquar- ters in New York. In fact, Syph continued to solicit sig- natures on pledge cards up to 1984. I credit Claude R. Tucker Sr. to the effect that, in De- cember 1981, Syph phoned Tucker at his home, told Tucker that he had a card for him to sign, and said that he wanted to get as many signed as possible before going to New York to see Gleason. Syph added that if Tucker did not sign, he would be "left out." Tucker responded that he did not want to sign because the stevedores al- ready had a local. Syph then told him that he was not going to have a local, that Syph was going to get an- other local, and that, if Tucker did not sign, he was not going to go to work.27 Sometime in 1982, Syph presented Nathaniel Levesque with a pledge card and said, "Sign this and you can work." Levesque refused. Syph emphasized that Leves- que would have to sign a card stating, "I'm going to see that nobody is working but my friends and family." Syph approached Wesley W. Boyd on three occasions to solic- it Boyd's signature on a pledge card. Each time Boyd re- fused. On the first such occasion Boyd told Syph that he was not signing anything to get a new local because he already belonged to Local 1982. He did not change his position when further requests were made. Shortly after the trusteeship was imposed, Syph asked Thomas W. Gaines to sign a pledge card. Gaines refused. Syph then told Gaines, "If you don't play ball with me, I'll get you off this dock if it's the last thing I do. All you will do is spend money buying gas coming back and forth from the dock." Toward the beginning of the 1982 shipping season, Syph met Gaylon Howard at L. C.'s, an estab- lishment referred to either as a "speakeasy" or an "after- hours club."28 Syph told Howard that he was organizing 27 Witness Claude R . Tucker denies ever having signed a pledge card for a new local. Syph said he did There is a pledge card in evidence purportedly signed by Claude W Tucker The witness was never con- fronted with this card on cross-examination I conclude that the card was signed by some other person and credit witness Tucker's assertion that he never signed a pledge card for Syph 28 28 L C 's is actually a private home, located on Prospect Street, whose owner permits friends to come in late at night and play cards He Continued TOLEDO WORLD TERMINALS a new local and that Howard would have to sign a pledge card, adding that if Howard did not sign now, "it would cost $600 after (the local) was formed." Howard refused. On one occasion in 1982, Syph offered Paul Conley a pledge card and asked him to sign it. Conley refused, whereupon Syph told Conley that it was Conley's fault that he was not working every day. On two different oc- casions Syph asked Floyd Early to sign a pledge card. Early refused. A few months later, Syph asked him again. When Early refused a second time, Syph said to him, "Well, I can't hire you no more." In November 1981, Syph asked Raymond Merrill to sign a pledge card. Merrill refused. Syph then told Merrill that, if he did not sign a pledge card, he would never get another day's work. Late in 1981, Syph approached Richard "Lefty" Hollinger about signing a card. Syph told Hol- linger that, "When the new local gets in, whoever doesn't sign a card wouldn't be working." Hollinger in fact signed a pledge card that was solicited by Julio Ra- mirez, a fellow employee. Sometime in 1982, Syph phoned Harkles Bacon at his home and asked Bacon to sign a pledge card. He told Bacon on this occasion that it would be necessary to sign a card to be a member of the new local and that , if Bacon did not sign , he would be "left out." Bacon replied that he could not become a member of a new local and still remain a member of an existing local.29 On receipt of Syph's application for a charter for a new local, Harry R. Hasselgren, secretary-treasurer of the ILA, wrote Sullivan a letter, dated January 12, 1982, in which he requested that Sullivan conduct an investiga- tion concerning the merits of granting the application. Sullivan notified interested persons that he would hear their views concerning the chartering of a new local on January 29 at the Holiday Inn in downtown Toledo. On or about January 26, Moody submitted to Sullivan by letter a petition signed by about 110 members of Local 1982 protesting the granting of the application. Moody also met Sullivan personally on January 29 with other members of the Local 1982 executive board. He gave Sullivan a second copy of the petition opposing the cre- ation of a new local and reaffirmed the loyalty of Local 1982 members to the ILA. Moody reminded Sullivan of a promise given to Moody in Buffalo the previous April that Local 1982 would be made the cobargaining agent of TWT employees within 30 days, and stated that Local 1982 members had been fighting for many years to main- tain union standards at the Port of Toledo. Moody de- manded bargaining rights for Local 1982 and complained that Syph had been coercing its members into signing pledge cards. He also complained that he had received no support either from Sullivan or Baker in enforcing the contract. Sullivan's reply was a noncommittal state- then sells them liquor by the drink in order to support the operation. Moody referred to these individuals as "skinners" because of the name of the card game they played. 89 Sometime later, in 1983 , Syph renewed the effort to collect pledge cards for a new local . On one occasion, while soliciting a card from Charles Hampton, Syph told Boyd to sign the card or he would not be hired Boyd refused 689 ment that he had come to Toledo just to solicit every- body's views. Jeffrey Julius, Local 1982's lawyer, dispatched a letter the following day to Charles R. Goldberg, the attorney who represented the ILA in the suit before Judge Young, protesting the proposal to charter a new local and threatening to bring the ILA before Judge Young for contempt if such a charter were granted. Julius' letter also made reference to a meeting scheduled to take place on February 10 to discuss differences between the ILA and Local 1982, and expressed the opinion that an effort to charter a new local would completely undermine any possibility of harmonious resolution of the dispute. During December and January, an exchange of corre- spondence between Moody, Gleason, and others had taken place with a view toward working out the differ- ences that were dividing the parties. One of Moody's problems was that the treasury of Local 1982 was deplet- ed and he was unable to travel at union expense to New York or Washington, where Gleason and others wished to hold such a meeting. At long last the parties agreed to meet on February 8 (not February 10) at the ILA office in Washington. Moody went to Washington and arrived for the meeting at the appointed time. He was kept wait- ing for 6 hours. When the meeting finally took place, the ILA was represented by President Gleason, his son, Thomas W. Gleason Jr., who is the ILA's general counsel, Sullivan, and both Bakers. In the course of the meeting, Moody again reaffirmed his loyalty to the ILA and offered to drop all litigation if the ILA would secure for Local 1982 its bargaining rights with TWT. He reminded Glea- son that Sullivan had promised Moody in April 1981 that Local 1982 would be brought in on the TWT contract within 30 days, but nothing had happened. Gleason (Sr.) accused Moody of trying to turn the dock over to the Teamsters. Gleason (Jr.) said that the ILA could put Local 1982 into trusteeship either for filing a decertification petition or for filing an unfair labor practice charge against TWT. Sullivan merely stated that he had been personally hurt because the peti- tion and charge had been filed. Moody complained that the ILA had tied the Toledo stevedores into a substand- ard contract, without benefit of ratification, and that the Cleveland agreement was nothing compared with the DeBartolo contract that had governed the port during the preceding years. The meeting ended in a hot argu- ment and the ILA leadership just walked out of the room. Gleason (Sr.) returned and invited Moody to phone him in New York in a couple of days and they would work something out. Moody did so, but Gleason was on vacation when the call arrived. Moody then sent Gleason a letter that was never answered. On February 10, Sullivan forwarded a report to the ILA executive council recommending that a new charter be granted for a general cargo local at Toledo. Moody attended the ILA annual convention early in March at the Diplomat Hotel in Hollywood, Florida, as a delegate from Local 1982, but was denied credentials and could not participate in the convention. He attempt- ed to speak with Gleason personally concerning the out- 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD standing differences between Local 1982 and the ILA, but was unable to do so. One of Moody's reasons for wanting to attend the International convention was that the ILA executive council would be in attendance, and he felt that they would be making a decision at that time on whether to issue a charter for a new general cargo at the Toledo Port. On March 3, Moody appeared before the executive council, pledged the loyalty of Local 1982 to the ILA, and said that all they wanted was their bar- gaining rights. He said that the Local wanted to keep its charter and complained that it had received no support from the Great Lakes District. Syph told the executive council that "Moody and his stoolies" were trying to turn the port over to the Teamsters. Before leaving Flor- ida, Moody received word indirectly from Gleason that an answer to his complaints would be sent in the mail. On March 12, the ILA executive council authorized the issuance of a charter for a new local at Toledo, des- ignating it as Local 2037. On March 15, Gleason wrote Syph and informed him of this fact. He said that the new local would only cover employees of TWT and that the charter document itself would be forwarded to Syph on the payment of a standard $13.50 fee charged for the is- suance of charters. Before receiving Gleason's letter, Syph distributed a notice, using his own name as vice president of the GLD, stating that there would be an or- ganizational meeting of the newly chartered Local 2037 on March 19 at the MEBA hall. The notice also con- tained a proposed slate of officers for Local 2037, headed up by Syph for president, Julio Ramirez for vice presi- dent, and Chevalier for financial secretary-treasurer. When Moody heard about this meeting, he sent Gleason a telegram in which he threatened the ILA with further legal action. In fact, the charter for Local 2037 was never forwarded to Syph because of the pendency of liti- gation, so the March 19 meeting never took place. On March 23, Local 1982 went back to district court and filed, within the framework of its pending suit, a motion for a temporary restraining order and preliminary injunction and a show cause order seeking to hold the ILA in contempt for violating the order of November 19. A hearing on this show cause order was held on March 29. Although not granting all of the relief prayed for, Judge Young held the ILA in contempt. In a deci- sion dated April 2, he required the ILA to make a formal entry in its records terminating the trusteeship and pro- viding Moody with a certified copy of the minutes taking such action. The ILA was further required to notify Syph that he was no longer trustee, and instructed the ILA to deliver to Local 1982 officers the books and records of the Local. Of considerable importance is that he directed the ILA to pay over to Local 1982 the por- tion of the checked off dues designated for Local 1982 in the checkoff cards that had been filed with TWT the preceding May, together with interest on dues at 8.25 percent. Until this time, the GLD had taken this money from TWT and had deposited it in the general account of the Great Lakes District along with other GLD funds. Young also ordered the ILA to rescind the char- ter granted to Local 2037 and to reimburse the plaintiffs for attorneys fees involved in prosecuting the contempt action. Certain quotations from Judge Young's opinion are pertinent here: In desperation, the plaintiff Moody filed with the National Labor Relations Board a complaint of unfair labor practices, and petitions to decertify the defendant (ILA) and to re-certify Local 1982 as the collective bargaining agent for the workers at TWT. The defendant falsely accused Moody of filing the proceedings on behalf of the Teamsters Union, a traditional rival of the defendant on the Toledo docks. Defendant's officers based this calumny on the fact that the current attorney for Local 1982 also represented the Teamsters Local in Toledo. The matter of what labor law firm represents which labor union and when is a very fluid one in Toledo. No one has ever questioned, however, the complete loyalty of each firm to each of the individual unions it happens to represent at a given time, unaffected by any rivalries among their clients. The events presented at the various hearings in this case leave no doubt of the almost pathetic loy- alty of the members of Local 1982 to the defendant, in spite of its clear disloyalty to them. It is hard to believe that the defendant's officers truly thought that the plaintiffs were trying to act on behalf of the Teamsters Union. It seems more probable that this is a trumped up justification to cloak their own wrongdoing. Judge Young found that certain actions of the ILA in fall 1981 and spring 1982 violated his November 19 Order restraining the ILA from interfering with the op- erations of Local 1982. That the ILA had chartered a new local, that it had denied Moody a seat at the Inter- national convention in Florida, and --that the ILA had taken no affirmative steps to dissolve the trusteeship were deemed to be evidence of contumacious conduct. [T]his rejection of the plaintiff Moody as a dele- gate demonstrates that the defendant continues to treat Local 1982 as being under trusteeship, in com- plete defiance of this Court's order. It is clear from these facts, which are undisputed, that the defendant in fact continued to treat the trusteeship as if it were still in force, depriving Local 1982 and its officers and members of any au- tonomy. It is hard to imagine a more direct and fla- grant contempt of a court order. Regarding the new local, Judge Young went on to say: The undisputed testimony was that Mr. Syph had been threatening dire consequences , financial and otherwise, to any employee of TWT who did not sign applications for membership in the new local. The undisputed testimony was also that there is no other port on the Great Lakes where two general cargo unions exist at the same time. Attempts to shake the plaintiffs' testimony on cross-examination TOLEDO WORLD TERMINALS failed, and documentary evidence which perhaps could have refuted it was not offered. As a practical matter , the existence simultaneous- ly in one seaport of two general cargo local unions, one recognized by the dock operators and other not so recognized, would be totally destructive of the unrecognized union. To say that chartering a new local would not interfere with the operations of Local 1982 is patently absurd. The ILA appealed Judge Young's decision to the Sixth Circuit, where it was upheld in an opinion and order dated November 1, 1982 (Cases 82-3108 and 82-3220). The Great Lakes District, however, did not begin to remit back dues or current dues to Local 1982 until after the court of appeals had affirmed Judge Young 's order. It continued to make those payments until spring 1984, when, at the outset of a new contract , TWT employees executed new checkoff authorizations. Most of those au- thorizations omitted any mention of Local 1982. 5. The 1982 shipping season a. On the waterfront The 1982 shipping season in Toledo began on April 23. Syph continued to act as dock steward at the morn- ing shapeups and to assign lines . One new feature of the hiring process in 1982 was the establishment of a new category of employees referred to as "experienced" em- ployees. The ILA and TWT agreed during the previous winter that the criteria for eligibility for health and wel- fare coverage should also be a criteria for preferential treatment in hiring in 1982. Notwithstanding the contrac- tual provision designating employees with 1000 or more hours in the preceding season as experienced employees, the parties orally agreed that the figure should be adjust- ed to 350 hours. Accordingly, some 26 men who had worked 350 or more hours in 1981 were given prefer- ment in hire after the 16 "preferred" men were hired. These 42 individuals constituted the core of the TWT labor force. Staler announced at 1+ shapeup on that day that henceforth the Company would recognize only 41 employees regardless of seniority. (That figure eventually became 42.) A second change in the shapeup procedure was that Staler began to assign employees to job open- ings as their names were called. Syph's function was lim- ited to calling the roll, although, as noted infra, he had some discretion in that regard. Opening day was also marked by a spirited exchange between Syph and Charles Moody. After the evening shapeup was over, Levesque, a Moody supporter, asked Syph for a grievance form. Syph told Levesque that he was not Levesque's "g.d. steward" and told Levesque to get a form from Moody. He also told Levesque that he "didn't give a -" if the Company fired all the Moody people. Charles Moody jumped into the conversation at that point. He denounced Syph as a "rotten s.o.b.," ac- cused Syph and the ILA of putting the men in a yellow dog contract, and finally referred to Syph as an "Uncle Tom" and a "company man." Syph admitted he was a company man and walked away. 691 As in other years, however, TWT was also forced to rely on casuals to fill out its hiring needs during peak in- tervals. All in all, TWT employed some 93 stevedores during the 1982 season, including 41 casuals. Some of the casuals worked only a few hours and some worked more than 100 hours, but none were hired until all of the 42 preferred and "experienced" men who had appeared at shapeup had been employed. Two individuals were re- moved from the list of preferred employees and placed in the list of "experienced" employees, namely Edwards and Shirley Marsenburg. Both were and are Moody sup- porters. As discussed more fully later on, Edwards and Marsenburg, both of whom had worked the contractual 1000 hours in 1981 required of experienced men, were replaced on the preferred list by Walter Sampsel and Joseph Victorian, both Syph supporters. Neither Sampsel nor Victorian had worked close to 1000 hours in 1981. Edwards and Marsenburg were given preferment in call among the 26 experienced men during the 1982 season, but their change in status, in addition to Edwards' re- moval as lines dispatcher, severely affected the number of hours both worked in 1982. Here is a comparison of the number of hours worked by both: Edwards worked 1559 hours in 1981 and 301 hours in 1982; Marsenburg worked 1254 hours in 1981 and 243 hours in 1982. Davis testified that he had discussed this move with John Baker before taking it. According to Davis, TWT initiated the request and Baker agreed. Later on, Edwards spoke to Staler and complained about being taken off the pre- ferred list. I credit Edwards to the effect that Staler re- plied, "Well, Ray, it's just politics," to which Edwards stated, "I don't know what you're talking about. I thought you just wanted good workers." This change in the preferred list by TWT meant that the only Moody supporter left on that list was Charles Moody himself. The political lineup among TWT's 42 preferred and "experienced" employees for the 1982 season was 22 Syph followers, 19 Moody followers, and one neutral. Among the 41 casuals, Moody sentiment was overwhelming although, in the next 2 years, Syph made a determined effort to hire as casuals new men who either had no particular allegiance to any faction or who could be relied on as his own supporters.3o At the outset of the 1982 season, Davis told Syph that he no longer had to use the Local 1982 seniority list at shapeup as he had in the fall of 1981. Accordingly, Syph discontinued using it. Although Syph had to hire pre- 30 During the 1984 season, for instance , a total of 114 individuals were employed on the docks by TWT In that year, the number of employees given preferment in hire had been increased to 50, meaning that 64 casu- als were employed at some time during the shipping season Of those 64 casuals, 26 were men who had not been hired in the 1981 season and who were never on the Local 1982 seniority list A number of them had family ties to Syph-faction employees, leadmen, and foremen They were S Ballard, K Barker, F Bires, G Campbell, D Chevalier, R Cleveland, F Clinksdale, D Cousins, J Dahmer, R Fisher, E German, L Ghol- ston, T Golebieski, E Hemp, D Hice, J Hodge, P Kristoff, H Love- less, W Momenee, D Moms, J Morns, D Pitts, A Seay, R Spencer, and L Staler I credit the testimony of Levesque and others that, on busy days, casuals were hired at shapeup who were unknown to either Syph or the marine foreman They were requested to state their names and, in some instances, to spell their names in order to be listed on the hiring sheet 692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ferred men, as well as Edwards and Marsenburg, before hiring any experienced men, within the ranks of 24 of the 26 experienced men Syph could hire in any order he chose and he admitted as much in his testimony . I credit corroborated testimony of other witnesses that the 41st and 42d men hired by Syph before reaching the casuals were always Gaylon Howard, a Moody supporter, and Robert Moody Jr. On lines Syph could hire whom he pleased and he re- peatedly said so to various employees . Syph's own records, which are in evidence , indicate that in 1982 he made a total of 17 lines assignments to 11 Moody sup- porterss' and a total of 492 lines assignments to 41 of his own supporters. s 2 (Syph's records were kept in terms of number of assignments on particular ships and days rather than in terms of the number of hours worked by linesmen.) Syph concedes that he did not equalize hours of work for longshoremen through the assignment of lines because "that was not my job." He admitted that lines assignments he gave in 1982 to T. Syph, Spencer, M. Rizo, A. Rizo, J. Ramirez, and D. Tefft-all of whom were casuals during that season-materially 3 1 Moody supporters receiving lines assignments in 1982 from Syph are as follows: Bacon, Tucker (2), Barteck (2), McVicker (4), Hollinger, Spivey, Hood, Hicks, and R. L. Moody (2), Clemons and Edwards. Ed- wards claims that he was not paid for the only lines assignment he re- ceived, since it occurred during normal working hours. He was given this assignment rather than an unloading job and paid as if he were un- loading a ship. Charles Moody received no lines assignments from Syph, notwithstanding that he was a preferred man In fact , Charles Moody was the only preferred man who did not get a lines assignment in 1982. When asked why he did not assign any Imes to C. Moody in 1982, Syph simply replied, "No reason." In the fall of 1982, Staler had told C Moody that the Company was going to try to equalize lines assignments among preferred men. On December 10, 1982, C. Moody filed a griev- ance claiming that he had not been given any lines assignments in 1982 and that he was the only preferred man to be overlooked in this regard. On May 17, 1983, Davis wrote a letter to Lackey in which he stated that the contract did not require that preferred men be given Imes. 32 Syph supporters given lines assignments in 1982 are as follows: L Victorian (6 assignments) Spencer (17) Cutcher ( 11) Ohvares (8) Rucki (12) Sutton (12) D Tefft (24) Hansen (9) J. Victorian (24) Owens (8) Ramirez (14) Beese (13) A Rizo (12) R. Moore (5) M. Rizo (12) White (10) Fred Syph (17) Erichson (9) Foster (6) W. Sampsel (14) Lawler (16) Torres (6) A. Victorian (12) Ludlow (8) Serna (5) Bollmon (10) Chevalier (39) Burkhard (7) Antonacci (10) J. Bennett (4) J. Loveless (17) Berg (5) (neutral) J. Rizo (17) Ludlow (4) Apodaca (17) S. Turner (2) J. Turner (13) Sanders (2) Kristoff (17) M. Turner (1) J. Syph (36) On one occasion, Syph told Davis that he was rotating lines among "some" employees. helped them to work the 200 hours they needed to qual- ify as experienced men during the 1983 season . Syph also admitted that he assigned lines by using a list composed of the names of men who had signed his petition asking the ILA to charter a new local. As previously noted, business declined in 1982 and the total number of man hours worked by TWT employees was reduced by 26.7 percent, from 43,994 man hours to 32,241 man hours. Some 20 TWT employees, however, all Syph supporters, experienced an increase in hours worked in 1982 over what they had worked in 1981. Those prospering in the face of adversity were: Name 1981 Hours 1982 Hours Cleo J. Syph (new steward) 741 2,914 Joseph Victorian* 225 872 Walter Sampsel' 358 918 Joseph A. Bollman 1,452 1,921 Robert W. Burkhard 1,248 1,799 Harold Chevalier 962 1,771 Joseph E. Cutcher 1,346 1,686 Charles P. Erichson 1,530 1,823 Keene Ludlow 1,532 1,891 Julio Ramirez 260 306 Alfonso Rizo 190 257 Miguel Rizo 208 256 Joseph M. Rucki 1,511 2,035 Charles R. Spencer 114 284 Fred Syph 40 194 Theodore Syph 137 200 Donald E. Tefft 163 300 Mark Turner 0 40 Sherrond Turner 0 78 Ledray Victorian 1,529 1,946 * New preferred man. In marked contrast, all the 63 Moody supporters listed in Appendix A of this decision experienced sharp cuts in the number of hours worked in 1982 as compared with 1981. Charles Moody himself was reduced from 1578 to 725 hours in his new-found position as an ordinary steve- dore. I credit testimony in the record from Levesque, Howard, and others to the effect that Syph said flatly that he was going to hire his friends and relatives and that others would not work. A list of relatives of Syph and Company Foreman Glenard Staler and Floyd "Fats" Tefft, who were hired repeatedly in 1982 and thereafter, is as follows: Fred Syph-Cleo Syph's brother Ted Syph-Cleo Syph's brother F. D. Syph-Cleo Syph's nephew C. J. Syph-Cleo Syph's nephew M. Turner-Cleo Syph's nephew D. Turner-Cleo Syph's nephew R. Moore-Cleo Syph's nephew G. Foster-Cleo Syph's cousin T. Fletcher-Cleo Syph's son TOLEDO WORLD TERMINALS 0. Sanders-husband of C. J. Syph's sister C. Spencer-Staler's brother R. Spencer-Staler's nephew L. Staler-Staler's son D. Tefft-F. Tefft's brother Among Syph's tenants, in an apartment house owned by Syph on Fulton Street, who were hired were D. Hen- dricks, W. Ramsey, and F. Gholston. Among Syph's card-playing friends at L. C.'s who were hired were R. White, J. Hodge, and L. Jones. As noted above, F. Tefft was also involved in hiring a relative. Moody filed a grievance against Tefft for nepotism, but the grievance was rejected. On one occasion, Davis spoke to Syph about hiring relatives and told Syph that he did not like the practice. Syph asked Davis if he should discontinue the practice and Davis replied, "No." When asked at the hearing for an explanation of why several Syphs received lines as- signments in 1983 substantially larger than the assign- ments given to other employees, C. Syph replied simply that he had no explanation, denying that he ever took family relationships into consideration when making job assignments. b. More internal union charges In addition to the internal union charges filed by Robert Moody and various Moody faction stevedores in November 1981,33 additional charges against the ILA and various of its officers and constituent bodies were filed in 1982. Each of these charges was signed by a large number of Moody adherents and was then for- warded either to ILA headquarters in New York City or to the GLD headquarters in Buffalo. A partial listing of charge signers is found in Appendix A of this decision. None of these charges has ever been acted on by the ILA. On June 3, 1982, a charge was filed with the GLD de- manding an accounting by the GLD for the collection of the tonnage incentive and the $10 container royalty, which the collective-bargaining agreement with TWT required the employer to pay to the ILA. On the same day, a charge was lodged with ILA headquarters against the ILA executive officer, executive council, GLD offi- cers, and the GLD council alleging that ILA dock stew- ard Syph had refused to process pending grievances filed by TWT employees. This charge asked that Syph be brought to trial, removed as dock steward, and be re- quired to make grievants whole for any financial losses sustained because their grievances had not been properly processed. A third internal charge, filed on the same day and sent to ILA headquarters, named the same respond- ents as did the second charge and complained that Syph, as dock steward, had refused to enforce the hiring provi- sions of the collective-bargaining agreement between the ILA and TWT. Like the other charge involving Syph, this one requested that Syph be brought to trial, re- moved as dock steward, and required to make grievants ss At the hearing on August 29, 1985, 1 reserved ruling on the admis- sion of G C Exh 84 That document is now admitted into evidence 693 whole for losses sustained by his asserted failure to en- force the contract. A fourth charge filed on June 3, 1982, was forwarded to ILA headquarters in New York and named as re- spondent ILA and GLD officers and councils. It com- plained about the policy of the ILA in conducting an or- ganized refusal to load Russian ships to protest the Rus- sian invasion of Afghanistan. This boycott led to the filing and prosecution of secondary boycott charges and the issuance of a complaint that was ultimately upheld by the U.S. Supreme Court. The Moody charge sought an accounting of legal expenses incurred to defend the unfair labor practice complaint and requested the filing of a suit by the ILA against the ILA officers responsible for organizing the boycott of Russian ships to recover from them personally any sums expended from the union treasury to defend the secondary boycott complaint. Late in December 1982, Moody sent off another inter- nal charge to the ILA office in New York. It was signed by a large number of Local 1982 members. The thrust of this complaint was that ILA officialdom had violated the constitution and bylaws by refusing to permit Local 1982's elected dispatcher, Edwards, to function as such on the Toledo dock. They asked, among other things, that various named ILA officials be disciplined for this asserted violation of their rights as Local 1982 members. 6. Grievances Between the beginning of the 1982 season and the time this case came on for hearing in summer 1985, TWT em- ployees and applicants for employment filed a total of 3707 grievances, most of which dealt with the failure or refusal of TWT and the dock steward to hire them, either at shapeup or on lines. A summary of grievances filed by year is as follows: 1982 249 1983 1672 1984 1486 1985 (thru 7/8/85) 300 Total 343707 Over this period of time, grievances were filed in the names of some 69 TWT employees and applicants for employment. It is fair to say that, both in 1982 and there- after, the filing of these grievances constituted a major administrative headache both for Syph and for TWT. Davis testified that he assumed that Local 1982 was re- sponsible for these grievances, since most of the griev- ants were either Local 1982 leaders or were associated with them. This assumption was the basis for an unfair labor practice charge that TWT filed against Local 1982 on August 4, 1982. The charge alleged that the Local was harassing it with false and frivolous grievances. The charge was dismissed (Case 8-CB-5026). At the beginning of 1982, a large number of grievances were left unresolved from the 1981 shipping season, when Moody was dock steward. Moody had presented 34 Regrettably, counsel felt called on to place each of these 3707 griev- ances in the record in this case , thereby clearing space in filing cabinets throughout the State of Ohio, but adding bulk to files elsewhere 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 86 grievances to John Baker and Strimbu on August 11, 1981,3 6 and had had 74 more in hand when he was ousted as steward on November 3. Copies of those griev- ances had been forwarded to Lackey by Moody under cover letter dated October 28, 1981. Twenty-six more grievances were signed by TWT employees and counter- signed by Moody in November 1981, after he was re- moved as steward. In November 1981, Moody presented several of these grievances to Tefft and Staler, but both of them refused to accept them because Moody was no longer the steward. They required that all grievances be presented to them by Syph, the new dock steward. On November 5, and again on November 27, Moody gave several of these rejected grievances to Syph for presenta- tion to the foremen, but Syph refused to take them, tell- ing Moody that he was just trying to harass him with grievances. Syph denied that he had ever refused to accept a grievance, but I discredit him on this point as I do on many others. One of Moody's complaints against ILA officialdom was its failure to assist him in pressing grievances against TWT when grievances were taken beyond the stage of discussion between the steward and the marine foreman. It should be noted that a few of the 1981 grievances were filed by members of the Syph fac- tion. Sometime in the fall of 1981, Moody submitted to Lackey the grievances referred to in his letter to Hard- wick. In a letter dated June 11 of the following year, from Davis to Syph and Lackey, Davis made reference to these grievances that "had been left on Jim Hard- wick's desk on several occasions last fall." The griev- ances in question bore control numbers 81-86 through 81-152. Davis denied all of these grievances because they had been untimely filed and because they had been presented to TWT on Local 1982 grievance forms. He reminded Syph and Lackey that "Toledo World Termi- nal, Inc. does not recognize that local as a signator to the agreement between Toledo World Terminal and I. L. A." TWT has never prepared a grievance form for the use of its employees, although previous employers at the Toledo dock had done so. At one time, Local 1982 had a secretary named Eunice who typed out complaints for the individual grievants who had come to the union hall to avail themselves of this service. However, sometime in 1981 or 1982, the Local had to discontinue this service and lay off their secretary because they had no funds to pay her. Beginning in 1982, Moody had blank grievance forms made up and kept them in his locker at the dock. These forms were altered slightly from time to time. Moody made these forms available to grievants on re- quest. The normal practice was for a grievant to fill out a form in duplicate, present the original to Syph in the presence of a witness, and leave the copy with Moody. Samples of grievance forms prepared by Moody and made available to dock workers are as follows: 96 Moody's written demand to arbitrate these grievances, given to Hardwick in early September 1981, has never received a reply from TWT Date: This grievance is for ILA Dock Steward Cleo Syph and T.W.T. Inc. violating Sec. 5.3 A & B of the Agreement by and between I.L.A. and T.W.T., Inc. This violation occurred on or about [time] (am)(pm) in the hiring of line handlers for the M. V. [name of ship] and continuously thereafter. Men were hired as line handlers who have less experi- ence in the industry than me. I was not hired be- cause of this violation and my continued support for ILA Local 1982. (signature of grievant) Date: This grievance is for ILA Dock Steward Cleo Syph and TWT, Inc violating Sec. 5.3 A & B of the Agreement by and between the ILA and TWT Inc. This violation occurred at the (am)(pm) shapeup when men were hired to work the M.V. [name of ship] warehouse, and field areas. Some of the men hired to do this work have less experience in the industry than me. I was not hired because of these violations and my continued sup- port of ILA Local 1982. (signature of grievant) Some of the later forms were a "combination form" and could be used either for a linehandling grievance or a shapeup grievance. Beginning in 1984 , the forms used added the phrase: This document is being given to you to initiate the grievance procedure. In the event that the Com- pany does not give me a satisfactory answer please consider this a written grievance pursuant to Step 3 of the grievance procedure. The latter phrase was added because of technical ob- jections raised in 1982 and thereafter by TWT to the procedure used by many of Moody's supporters.36 In the view of TWT, a grievant was first obligated to go to the dock steward and discuss his grievance orally with Syph. The dock steward and the grievant were then obligated to go to the marine foreman and discuss the grievance orally with him. Only after the marine foreman turned down the oral presentation of a grievance was the griev- ant entitled, in the estimation of TWT, to submit his grievance in writing.37 If a grievant initiated the proce- 98 In 1981 , when Moody was the officially recognized ILA steward, such procedural objections were not raised by TWT Moody never brought a grievant into the company office to discuss a grievance with the marine foreman, nor did TWT object to the fact that grievance forms used by Moody during that year were forms supplied by Local 1982 that bore its name 37 Syph had a slightly different understanding of the three steps of the grievance procedure In his view, at step one he was required to present the grievance to the foreman, at step two to the superintendent, and at step three to the company president In Syph' s opinion, there was noth- mg in the contract requiring the grievant to be present in person at step Continued TOLEDO WORLD TERMINALS dure with a written grievance without going through the aforementioned steps, TWT would deny the grievance on procedural grounds, although it would frequently couple its procedural rejection with a further denial of the grievance on the merits. At one time, Moody added to the standard form a request for arbitration in the event that the grievance was finally rejected. Davis testified that, in his opinion, Syph had never presented to him a procedurally correct grievance during Syph's entire tenure as dock steward. Grievants normally filed shapeup grievances immedi- ately following a shapeup at which they were not hired and an individual, who was lower on the Local 1982 se- niority list, was hired. This is what the forms meant by the standard phrase "less experience in the industry," which appeared on most if not all shapeup grievances. Lines grievances were usually submitted a day or two following a tie up or a let go for which the grievant was not hired. During 1982 and 1983, Syph was furnished by TWT with a small office at the warehouse near the hiring area. (Later, when Syph's role in the shapeup process was sharply curtailed, this office was moved to a former guard shack located near the street entrance.) Stevedores frequented Syph's warehouse office to ask for work, to complain about not getting work, or to speak to Syph on a multitude of matters. Moody's followers disparagingly named Syph's office the "ass kissing room." They nor- mally handed their written grievances to Syph in the ass kissing room. Many of Moody's followers experienced great difficul- ty in filing grievances with Syph. Syph's conversation with Levesque on the opening day of the 1982 season was recited above. Between 1982 and 1984, Tucker filed 104 grievances. Syph told Tucker on more than one oc- casion that his hiring grievances had no merit because Syph was free to hire whom he pleased. When Tucker voiced a complaint that men lower on the Local 1982 se- niority list had been hired in preference to himself, Syph simply told Tucker that he had torn up the Local 1982 seniority list. On one occasion Levesque went into Syph's office and asked him why he was not being hired.38 Syph told Levesque that the Company said that he was not qualified. This remark started an exchange of curse words, in the course of which Syph told Levesque to "get (his) g.d. ass out of the office and don't come back no more. You're fighting the wrong battle and you're on the wrong team." Levesque protested that he was not on any team at all and was simply insisting on his rights and his seniority. On May 19, 1982, Franklin D. Moody, Charles Moody's younger brother, turned in a written grievance to Syph. Syph told him that it was not necessary to file a written grievance and suggested to F. Moody that he just talk to him about his problem. F. Moody replied that he did not care to talk to Syph and that he would see one when the steward spoke with the marine foreman The contract itself imposes no obligation on a grievant to discuss his complaint orally with the steward before reducing it to writing It merely says that he should present the grievance to the steward without specifying how that presen- tation should take place 38 Between 1982 and 1984, Levesque filed a total of 223 grievances 695 him in court. Syph's reply was, "You smart-mouthed s.o.b. I'll see that you never get hired."39 On another oc- casion, Syph told a group of employees who were turn- ing in grievances that "you guys are making a play thing out of this." He told Levesque during one exchange that he was going "to get everyone of the g.d. Moodys off the docks and then retire and turn it over to Chevalier." In June 1985, Tefft asked Syph what the men were doing who were hanging around the hiring area. Syph replied, "They're grievants, but I don't owe those s.o.b.'s back there nothing." Once when Levesque had been hired by the foreman after TWT changed the hiring pro- cedure in 1984, Syph complained to Staler, "You mean you hired that s.o.b. after all the grievances he filed." Between 1982 and 1984, Robert Bradford filed an even 100 grievances . Sometime in 1983, Syph told Bradford that, if he kept filing grievances, he was not going to go to work. Bradford's reply was, "If this is all I have to go on, I'll do this because I want my job." On another occa- sion, while filing a grievance, Bradford was told by Syph that his grievance was no good, was illegal, and that Bradford was wasting his time. During the 3-year period of time starting with the be- ginning of the 1982 season, Alexander Evans Jr. filed 100 grievances . Once, in 1984, Syph asked Evans, "Why are you filing a grievance? You ain't getting any money." Syph went on to tell Evans that the Moodys were going to starve him out and would cause him to lose his job. In May 1985, Evans went to the guard shack and presented Syph with a grievance for not being hired at shapeup. Syph told Evans, "I should have left you in prison. 1140 Wesley W. Boyd is 65 years old. He has filed a total of 149 grievances. On July 25, 1985, Boyd was hired direct- ly by Tefft as an "extra" man. Syph told Tefft on this occasion that, if he had his way, he "wouldn't hire none of those black s.o.b.'s." Julio Ramirez,4I a Syph follow- er, then said to Boyd, "What the hell are you doing here? We don't want no niggers driving for us." On that occasion Boyd was assigned to drive a 2600 diesel fork- lift whose power steering was broken. Because of this defect in the machinery, Boyd was hard put to wrestle with the truck as he steered it about the dock. On one occasion in 1984, when Boyd turned in a grievance to Syph, Syph told him to go see Moody because Moody was Boyd's dock steward. Charles Hampton Sr. is functionally illiterate. Over the years he filed a total of 149 grievances. While presenting one of these grievances, Syph asked Hampton to read it to him. When Hampton was unable to do so, Syph called Hampton a "dumb-," told him he would not get hired, and threw him out of the office. Thomas W. Gaines filed 46 grievances. He presented one of these grievances to Syph using Edwards as his witness. Syph's response was, "Let's go into the superin- tendent's office and settle it." When they arrived at the 39 Between 1982 and 1984, Franklin Moody filed a total of 30 griev- ances. 40 Syph claims credit for assisting Evans several years ago in obtaining release from the penitentiary 41 Ramirez was candidate for vice president on Syph's ticket for the election of officers in the aborted Local 2037. 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD office, Edwards started through the door and Syph ob- jected to his presence. Gaines explained that Edwards was acting as his witness . When Syph said that Edwards was not coming in, Gaines asked why not. Syph replied, "Because he is one of those-who is trying to ruin things around here." A shouting match ensued in the course of which Syph called Gaines a "damn fool." All of them were thrown out of the office by the marine foreman. Gaines had another encounter with Syph in which he asked Syph why he was not being hired. Syph's reply was that Gaines did not have any seniority and Syph could hire whom he pleased. On a third occasion Gaines met Syph at the union hall. Syph said to him and other stevedores who were present, "You monkeys don't take heed to your superior." On a fourth occasion, Syph told Gaines, "You won't get no work down here so you might as well quit." On two occasions, Syph told Carl Foster Jr., a relative by a former marriage, that his grievances did not mean anything. On a third occasion, as Foster was turning in a grievance, Syph told him that Foster's association with the Moodys was one of the reasons why he was not being hired and that it would be helpful to him if he quit associating with them. Eventually Foster quit coming to shapeups because, as he put it, "I can't just live on griev- ance paper." Gaylon Howard filed 116 grievances. One evening he spoke with Syph on the porch of L. C.'s where they had both gone to play cards. He asked Syph why he had not been getting hired. Syph told him that he did not repre- sent anyone from Local 1982. He said to Howard, "Why don't you go to Moody. He's your rep, but he can't do a thing for you." Lonis "Tony" Byrd filed about eight grievances. He testified that he did not appear regularly at shapeups in 1982 because of the controversy between the factions. Once during that year Syph spoke to Byrd in the sha- peup room. Syph said that Byrd, who was number one on the Local 1982 seniority list among the active steve- dores, was not being hired because he lacked experience. He accused Byrd of sticking with the Moodys and said he was going to get rid of the Moodys and "all the guys who stuck with the Moodys." On another occasion in the warehouse, when Byrd presented a grievance to Syph, Syph told him that he was not working because he stuck with the Moodys and directed Byrd to take his grievance to the Moodys. Byrd, who has worked on the docks since 1959, told Syph that he had done every job on the docks, but Syph merely replied that no one was going to work on the docks except his kinfolk and his friends. Byrd took his hiring complaint to Tefft and Staler, but both of them said they could not help him. On another occasion, Syph told Byrd and others that if Local 1982 were placed in trusteeship, he was definitely going to kick out the Moodys and anyone who stuck with them. He reiterated this threat in Byrd's presence on other occasions. Paul Conley filed 25 grievances. At one shapeup in November 1982, Syph refused to hire him, so Conley presented a grievance. Syph told Conley that the griev- ance did not mean anything because Conley was on the wrong ball team, adding that he could not understand why Conley, a longtime associate of Syph, had teamed up with the Moodys. On another occasion, while the lawsuit in district court was pending, Conley handed Syph another grievance. Syph told him that he would not be hired as long as he had anything to do with the Moodys. Conley's reply was, "That remains to be seen." Syph insisted to Conley that his men were right, that the Moody faction was wrong, and that Judge Young would be the man to render that decision. Thereafter Syph told Conley several times when Conley was presenting griev- ances that he did not want the grievance, that the griev- ance did not mean anything, and that all he did was to throw them in a wastebasket. Raymond Merrill filed a total of 139 grievances up to the close of the 1984 shipping season. One of these griev- ances was granted.42 The rest were not. In August 1983, Syph told Merrill that he should not be hanging around with the Moodys because "they're a bunch of g.d. crazy fools." He included Edwards and Richard Staunton by name in this description. He also told Merrill, who is il- literate, that he was not following the proper procedure in filing grievances, but he did not outline what the proper procedure was. He did tell Merrill that he should not file any more grievances because it was causing him to lose work.43 During the 1982, 1983, and 1984 seasons, Milton Shoe- craft filed a total of 175 grievances. On one occasion in 1983, Shoecraft and William McCully went into Syph's office to protest Syph's failure to hire them that morn- ing. Syph's reply to Shoecraft was that he was only hiring experienced men. He also told Shoecraft that, "If you hang around the Moodys, you'll find yourself out- doors. They'll be making the money and you won't be making any money at all." In June 1983, Syph announced that he would not accept any more grievances in the shapeup area and that all grievances had to be presented to him in his office. He did not always adhere to this rule. Edwards over- heard Syph say to his brother near the employee lockers located next to the shapeup area that "if these s.o.b.'s keep filing grievances they are never going to work."44 Robert L. Moody Jr. filed 233 grievances in a 3-year span between April 1982 and the close of the 1984 season. In his testimony, Syph expressed even greater an- tipathy toward Robert Moody than he did toward his younger brother Charles. Having worked 350 hours in 42 Merrill suffered a fainting spell aboard a ship he was helping to unload and was assisted to the dock Before he was allowed to come back, the Company insisted that he have a physical examination per- formed at a nearby VA hospital. (Merrill is retired from the service on disability) Merrill grieved this requirement, so the Company relented and accepted him back without an examination. 43 About this same point in time, Tefft took Merrill aside and gave him the same advice Tefft explained on the stand that he felt that Merrill was "easily led." His advice to Merrill was that he should not be hanging around the Moodys because they were causing him to lose his job com- pletely. Memll's reply to Tefft was that it was a free country and he would associate with whom he pleased Tefft also counseled Merrill that he should not be filing grievances 44 The General Counsel's witness Melvin L Jones testified that Syph told him he was wasting time filing grievances and that as long as he filed grievances, he was not going to get hired I discredit Jones on the basis of demeanor and conclude that he was an unreliable witness TOLEDO WORLD TERMINALS 1981, R. Moody qualified as an "experienced" man during the 1982 season . However, his total number of hours worked dropped from 636 in 1981 to 233 in 1982. In 1981 R. Moody received 26 hours of work on lines. In 1982 he got only two lines assignments from Syph. Qualifying hours to remain an experienced man in the 1983 season were dropped from 350 to 200 hours because 1982 had been a disappointing season. Accordingly, R. Moody retained his status as an experienced man in 1983. However, he was concerned that his health insurance coverage would be in jeopardy because of the scarcity of work assignments he was receiving from Syph in early 1983. On May 4, 1983, R. Moody went into Hardwick's office along with Edwards to complain about scarce work assignments and about their potential effect on his insurance coverage. Hardwick told him that he would not speak to him unless his steward was present, so R. Moody and Edwards went to get Syph. Syph came into the meeting, saying to R. Moody and Edwards, "They ain't going to talk to you s.o.b.'s unless I'm with you." At the meeting with Hardwick , R. Moody complained that he was steadily being assigned to "short shots" and, at that rate, he would not have enough qualifying hours in 1983 to retain his insurance coverage during the fol- lowing season . He also complained that Syph was not giving him any lines to supplement the hours earned from shapeups. Hardwick merely replied that the dock steward had to call his name at shapeup when hiring ex- perienced men, but that lines assignments were strictly up to Syph. Syph then said, "- you, Moody," to which Hardwick added, "Meeting adjourned." On various occasions, when R. Moody presented grievances, Syph told him that his grievances were no good, that he (Syph) would hire whom he pleased, and that R. Moody's standing on the Local 1982 seniority list meant nothing.45 R. Moody worked 381 hours in 1983. This was not enough for him to retain his place on the list of experienced employees in 1984 , since the number of qualifying hours for 1984 was raised to 400 hours worked during the preceding year. Richard "Lefty" Hollinger has worked for TWT spo- radically since it took over the general cargo in 1981. Unlike many of the other witnesses for the General Counsel, Hollinger has filed only one grievance during that period of time. On several occasions, Syph, a life- long acquaintance, told him to "keep a low profile" and refrain from filing any grievances. In 1984 , when he was looking for work, Hollinger was told by Syph to "keep your nose clean and I'll see what I can do for you." Hol- linger signed a couple of internal union charges that Moody circulated . Regarding this action, he heard Syph tell Ramirez, "Let Lefty suffer a little bit. He's with Moody and them guys . Let him suffer a little bit. He'll be back to work." Robert Highsmith filed 100 grievances between the spring of 1982 and the fall of 1984. While filing one of 45 At a general meeting held by Local 1982 on January 22, 1982 (the occasion for signing the petition protesting the formation of a new local), Robert Moody was elected Local 1982 dock steward replacing Leroy Hunter and Kermit Jones Sr This post was "without portfolio," howev- er, since TWT refused to recognize Local 1982 or its dock steward 697 these grievances, Syph told him that anyone who files a grievance would be fired.46 During the same period of time Alvin Freeman filed 57 grievances. Syph rejected one of them, saying that he was not following the right procedure. When Freeman asked Syph what the right procedure was, Syph made no reply. On another occa- sion, when Freeman was acting as a witness for Marsen- burg in filing a grievance, Syph denounced them as "scabs," saying that they would not get jobs until after the other men had been hired. On another occasion, while turning in a grievance, Freeman reportedly over- heard Syph say that he would see to it that Gaines and Shoecraft would never work again on the docks. I dis- credit Freeman, however, and find that his testimony on this point was unreliable. Harkles Bacon filed a total of 88 grievances. He did so everytime he appeared at sha- peup and witnessed the hiring of an applicant who had a lower ranking on the Local 1982 seniority list than he did. Once, in 1983, Syph told him that if he continued to file grievances, he would not be hired at all. Matthew Bennett filed only a handful of grievances. One such grievance was denounced by Syph as "horse- shit." He suggested to Bennett that he throw it away. Syph also made the same suggestion to Marsenburg when the latter tried to submit a grievance. The Company's position respecting all lines grievances was that the steward had plenary authority to hire whom he pleased and that the cited provisions of the contract found on Moody's grievance forms were inapplicable to lines. Regarding shapeup grievances, TWT took the po- sition that seniority on the docks was inapplicable to its operation and that no complaint existed merely because a person who had a lower rank on the Local 1982 seniori- ty list was hired in preference to a higher ranking indi- vidual. It steadfastly refused to recognize the applicabil- ity of that list to its operation. TWT recognized three categories of employees and applicants-preferred men, experienced men (later called "qualified" men), and casu- als. So long as an individual was properly hired in the order required by these three classifications, the contract had, in its opinion, been observed. Regarding grievances charging that the grievant had been discriminated against in employment because of his continued support for Local 1982, TWT first took the position that all employ- ees and applicants were TWT members and hence no discrimination among them could occur simply because one member was hired in preference to another. When this response wore thin, it then took the position, stated by Davis at the hearing, that no actual evidence of any particular discrimination based on union or intraunion considerations had been personally brought to TWT's at- tention. Syph testified that he never found ment in any gnev- ance filed by Local 1982 members. He also admitted that he never made any independent investigation concerning the merits of a grievance and that his entire investigative effort consisted of talking to the company president. He simply gave batches of grievances to Hardwick. From 46 On one occasion late in 1981, Syph told certain of his supporters in the lunchroom at the warehouse that he was going to get rid of Highs- mith and both Moodys 698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD time to time, he would discuss an individual grievance with Davis if it appeared to be unique or unprecedented. However, in none of these discussions did Syph ever take a position on the merits of the grievance or act as an advocate for granting it. But, for the most part, griev- ances were resolved by the Company without any face- to-face discussions at the third step, the final step before arbitration. Syph also testified that he never disagreed with any disposition the Company ever made of any grievance, even though, in some instances, such as a grievance filed by Robert Bradford, the Company failed to address or resolve the central allegation in the em- ployee's complaint. To use Syph's words, "We made a practice of not violating the contract." Not all the grievances submitted dealt with hiring. A few dealt with improper manning. Some of these were granted. Moody filed one grievance asking to know why certain awards of money, which had been placed in escrow by the Company in 1982 when it upheld certain grievances based on improper manning, had never been distributed to the employees bringing the grievances. The amount in question was $2402.97. Although admit- ting that the money has remained in escrow for about 4 years, TWT said that it did not make distributions to spe- cific individuals because it was unsure which employees were entitled to be paid because certain unloading gangs had not been sufficiently manned as required by the memorandum of understanding. Syph said he also knew about the money in the escrow account but he did not know to whom it should be distributed. He was unaware of whether it had been drawing any interest during the 3-1/2 years it had been on deposit. This grievance has never been resolved. When asked why he did not press the matter or take the Company to arbitration, Syph merely replied, "I just assumed that Mr. Davis was an honest man, and that when he got ready, we would get together and pay these people." At the hearing in Octo- ber 1985, Baker testified that he did not know which in- dividual grievants were entitled to the money and did not know when anyone might be paid. He admitted that he was not doing anything to resolve the question. In 1982 and 1983, any responses made by TWT to pending grievances were made in letters sent by Davis to Lackey. Individual grievants were not given individual responses. In 1984, Davis began to provide specific re- plies to particular grievants. For the most part he used a form to do so, much as the grievants had used forms to submit their complaints. 7. The 1983 season Because 1982 had been a poor year, TWT and the ILA agreed that eligibility for benefits and for placement on the list of experienced men entitled to preferment in hire during the 1983 season should be dropped from 350 to 200 hours. The Company again used the list of 16 pre- ferred employees-men who were hired independently of the shapeup. The composition of this list was the same as in 1982 . The list of experienced men remained at 26 men. Some changes, however, took place in the composi- tion of that list.47 Edwards and Marsenburg, preferred men in 1981, were placed on the experienced list in 1982 but with preference in order of call. Toward the end of the 1982 season, Syph told Edwards that it would take 2000 hours to qualify as an experienced man in 1983 and that Ed- wards would never make it. Syph punctuated his state- ment by saying, "Edwards, you're through." In 1983 they remained on this list, but the preferment in order of call was removed. Accordingly, Syph was free to hire them in any order he chose so long as no casual employ- ees were hired first. Gaines, Glover, McCully, Highsmith, and Shoecraft, all Moody men, were removed from the list and became casual hires, ostensibly because they failed to have enough hours in 1982 to qualify for the 1983 list. Three other individuals, all Moody supporters, were listed as disabled or retired. In their places, eight Syph supporters were substituted. 48 Gaines missed "making the cut" by 25 hours, Glover by 157 hours, McCully by 32 hours, Highsmith by 2 hours, and Shoecraft by 5 hours. The effect of being reduced from experienced employees to casual employees was that these individuals worked far less in 1983 than in 1982, notwithstanding the fact that 1983 was a better year all around on the dock.49 Most of them had to abandon their jobs with TWT and seek other employment. I credit Howard to the effect that, in the fall of 1982, during a late-night card playing session at L. C.'s, Syph stated, "It's a damn shame. There's McCully. There's Gaines. There's Highsmith. There's Milton Shoecraft. They are all at the top of the seniority list. They are not going to get no bonus this year. They won't be hired next year off of the list. Milton Shoecraft, without a mir- acle, he won't get hired no more. When it comes to - a - around, I'm an expert."50 Toward the end of the 1983 shipping season, Syph made a statement of similar import during another card- playing session at L. C.'s. On this occasion he directed his remarks at Spivey and Robert Moody, stating in the presence of Howard and others that he had called Willie Spivey at his home because Spivey did not have enough hours. Syph wanted to encourage Spivey to come to late season shapeups in order to earn sufficient hours to be placed on the experienced list in 1984. Syph stated that he was urging Spivey to come to work in order to block Robert Moody from getting enough hours to qualify for any preferment in 1984. Syph's quoted phrase was that he was "watching them hours like a hawk watching chickens" to make sure his friends would get in and Moody supporters would be left out. Robert Moody ended up working 381 hours in 1983, some 19 hours short of the 400 hours that became the standard for expe- 47 The 10(b) period on charges filed against the Employer began on February 12, 1983 48 Lawler, Ohverez, Ramirez, A Rizo, M Rizo, C Spencer, T Syph, and D Tefft 49 In 1983 , TWT employees worked a total of 49,546 hours, up by 17,305 hours from 1982 and by 5552 over the 1981 total so Syph included McGoffney in this list of employees who might lose their standing on the experienced list TOLEDO WORLD TERMINALS nenced employees at the outset of the 1984 season. Having been reduced to the status of a casual employee, he was forced to seek other employment in 1984. During the 1983 season, Syph continued to make lines assignments at his sole discretion. Notwithstanding the fact that 1983 was a better season than 1982, Moody sup- porters received only 5 lines assignments, i.e., 12 fewer assignments than they did in 1982. The overwhelming number of these assignments in that year went to Syph supporters. For this disparity Syph had no explanation. One flurry of intraunion bitterness broke out in the summer of 1983 when Local 1982 held an election of of- ficers. The Moody faction won and Chevalier, J. Victori- an, and J. Turner filed charges with the International al- leging that the election was improperly conducted be- cause some of the candidates were not dues-paying mem- bers. The ILA president referred the charges to C. Moody who, as secretary-treasurer, was obligated under the ILA constitution to investigate such charges and to hold a hearing. When Moody failed to hold a hearing, these same members of the Syph faction filed internal union charges against C. Moody for failing to investigate the earlier election charge pertaining to the candidacies of persons who paid no dues. The second charge was re- ferred by the ILA to the executive board of Local 1982 for investigation and a report. Moody countered these charges by writing a letter to Gleason dated July 22, 1983, requesting that the ILA furnish Moody with detailed records specifying hours worked and dues deducted for each TWT employee. He complained that Local 1982 was never given such infor- mation, and that without such information pertaining to dues checkoffs, it would be impossible for him to re- spond to the initial charge and determine whether the candidates for union office were or were not dues paying members, as alleged by Chevalier, J. Victorian, and J. Turner. At a meeting late in August 1983, Sullivan told Moody that the ILA would not turn over the dues records to him because the information in question would "give him the edge" over Syph. Following this conversation, a hearing was held by the ILA on these charges on October 12, 1983, but no results have ever been announced. 8. The 1984 season The 1984 shipping season was the best yet for TWT. The total man hours worked by its stevedores amounted to 59,687, up 10,141 hours from the previous year and 35.9 percent over its initial year. Several significant changes in hiring procedures took place during 1984. The old contract between TWT and ILA expired on De- cember 31, 1983, and negotiations commenced on Janu- ary 12, 1984, for a new one. At that meeting Davis told John Baker and other ILA negotiators that, if the Board issued a complaint against TWT for a hiring violation based on charges that were then pending, TWT would thenceforth insist on doing all the hiring. Baker objected, saying that the ILA operated hiring halls throughout the ports of the United States and that it would not relin- quish this prerogative in Toledo. When the shipping season began in April, hiring pro- cedures in effect during 1983 continued to be followed 699 for a short while. The number of hours necessary to be on the experienced list was raised from 200 to 400 hours worked during the preceding season. Following this change, certain changes in the composition of the list took place. Moody supporters Howard, Marsenburg, and Robert Moody were dropped to the ranks of casual em- ployees, while Syph supporters J. Beese, F. Syph, and A. Victorian became experienced men. Syph supporter John R. Bennett was promoted from the experienced list to the preferred list. The total number of employees having preferment at shapeup remained at 42 and Syph contin- ued during April and early May to control both the sha- peups and the assignment of lines. On March 30, 1984, the Regional Office issued the first consolidated complaint against TWT and ILA. Shortly thereafter, TWT engaged a consulting firm to devise a system of selection of employees who would have more or less permanent status. On May 2, Davis gave Hard- wick, Tefft, Staler, and Warehouse Foreman Darby Lo- vicott a sheet containing the names of 63 stevedores listed in alphabetical order. The names were drawn from the list of employees who had worked for TWT during the past three seasons. Davis maintains that these 63 em- ployees performed 92 percent of the work during those years, but this percentage is disputed by the General Counsel. Davis instructed each of these individuals to make individual ratings for each of the 63 named em- ployees regarding ability, productivity, and quality of work, and to work independently of other rating super- visors. They were also asked to rate each employee re- garding attitude. Davis admitted that the "attitude" rating reflected, in large part, whether the employee in question was in the habit of filing hiring grievances. The ratings requested to be made were excellent, good, fair, and poor. Davis assigned numerical weights to each of these ratings, made up a composite rating sheet, and se- lected from this list of 63 the 50 highest rated individ- uals. These were the men to whom he assigned prefer- ment under the forthcoming contract. He also sought to establish an order of call among all but the 16 preferred men. Among the other 34 individuals, who would now be referred to as qualified rather than experienced em- ployees, there were five subclassifications-power opera- tor, checker, signalman, laborer, and front-end loader. In each subcategory, men were given a ranking. Because of their ability to do more than one job, some men were listed in more than one subclassification, thereby enhanc- ing their opportunities for employment at shapeup. The net effect of this effort was to add three Moody supporters-Tucker, Bacon, and Hood-to the list of qualified employees and to add four Syph supporters to this list (McVicker, Torres, M. Turner, and S. Turner). Merrill and Ben, both Moody supporters, were dropped into the ranks of casual employees. Among the 13 indi- viduals on Davis' list who did not "make the cuts" and who became or remained casual employees were 3 Syph supporters-Apodaca, R. Moore, and G. Foster-and 10 Moody supporters-Ben, M. Bennett, Czizi, Gaines, Glover, Howard, Merrill, R. Moody, Nolan, and Shoe- craft. The political lineup of the 50 individuals selected by Davis and his foremen was 37 Syph supporters, 11 700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Moody supporters, and 1 neutral, a considerable change from the 22-19-1 lineup that existed at the beginning of the 1982 season among stevedores on the preferred and experienced lists. Davis wrote John Baker a letter in which he outlined what had taken place and insisted that these 50 named individuals be given preferment in employment as pre- ferred and qualified men, that the order of call proposed by the Company for qualified men be recognized, and that the Company be allowed to do the hiring with its own foremen both at shapeup and at lines. For lines as- signments TWT proposed a simple rotation among the 50 listed employees, who would be entitled to earn se- niority with the Company. s t The ILA reluctantly agreed to this proposal and a contract was concluded containing these provisions. At TWT's insistence the contract was submitted to the stevedores for ratification. At TWT's further insistence, the ratification vote was limited to the 50 persons whom it had selected as its permanent cadre. Casuals were not allowed to vote . The vote took place at a meeting held on the evening of May 22 , 1984, in a portion of the office building where Local 1982 rented space for its office. Chevalier acted as election clerk, flanked by a deputy sheriff whose function was to keep out members of Local 1982 who appeared to vote, but whose names did not appear on the TWT eligibility list. A large number of these individuals did appear and attempted to gain admission but were not permitted to do so. The contract was ratified and became effective at the shapeup the following morning. No explanation exists in the record from the Company about why, in May 1984, it raised the number of employ- ees entitled to preferment in hire from 42 to 50. I credit Hollinger's testimony that Syph told him the Company was adding more men at that time to make sure that the contract was ratified. Beginning with the shapeup on May 23, the marine foreman took charge of the daily hiring. Syph rarely at- tended shapeups from that point forward although he was required to be on the premises to earn any money. The first 50 men to be hired were the individuals select- ed by TWT as preferred and qualified men. Accordingly, the shapeup became little more than a roll call and an at- tendance check regarding the list of 50. After that list was exhausted , casual employees would then be hired. They were often selected by the marine foremen from men who were present on the premises . Regarding the hiring of casuals after May 23, 1984, Tefft and Staler were at odds in their testimony . One said that, if he needed "extra" men, he would ask Syph and Syph would obtain them wherever he could . The other said that he would simply give Syph the name of an extra man and ask Syph to phone him and tell him to come to work. Syph admitted that, from time to time, he was re- 6 [ The term "seniority" as used in the company proposal-which later became embodied in the contract-did not have the broad or expansive meaning that it does under most collective-bargaining agreements. The concept had no applicability to layoffs and recalls but merely applied to promotions and training for new jobs , something that rarely, if ever, takes place on the docks because of the surplus of employees already available to fill any job classification quested to provide extras and would obtain them from any source available, including relatives, tenants at his apartment building, hangers-on at the Consaul Tavern, people lingering about the premises after the shapeup had concluded, or men whose names were on a list of casual employees that he maintained. On lines, the practice under the new contract was for the foreman who needed a linehandling crew to give Syph the names of 8 or 10 men in alphabetical order and tell Syph to call either 2 or 4, depending on whether it was a tie-up or a let-go. Syph did so, exercising some discretion within the limited list regarding whom he would call. The list was ultimately called in rotation. Records in evidence indicate that in 1984 and thereafter, lines assignments have been apportioned among the 50 preferred and qualified men more or less equally, within a range of difference of 1 or 2. Both before and after the 1984 contract, casual employees were almost never called on to work lines. After the 1984 contract was ratified, new checkoff au- thorization forms were circulated. The form distributed by Syph made no mention of Local 1982 or of a check- off of $6 per month for any local. Moody circulated his own checkoff form, which did include Local 1982 as the recipient of monthly dues. From that point forward, no dues were transmitted by the GLD to Local 1982 so its sources of revenue have almost completely dried up. 9. Casual employees Like all stevedoring companies, TWT is forced to use the services of casua152 or "extra" employees during peak periods to supplement its normal complement. During the first 4 years of its operations on the Port of Toledo, TWT has hired the following number of steve- dores during the respective shipping seasons: 1981 158 1982 93 1983 126 1984 114 Most of these individuals worked in the early spring or late fall, when the weather was bad and a combination of absenteeism among regular employees and the arrival of large numbers of ships in concentrated periods of time made jobs available for them at shapeup. They were and are almost always assigned to laborers' jobs. So long as the Local 1982 seniority list was used as the basis for hiring at shapeups, nonpreference employees who were selected came from that list. (By Local 1982's definition, a "casual" was a temporary employee whose name was not found on its seniority list.) Moody testified without contradiction that no one on the Local 1982 se- niority list had less than 9 years' experience on the port. 52 The use of the word "casual" in this decision, regarding job appli- cants who did not enjoy some kind of preferment in hire, does not consti- tute a determination that such persons were or are casual employees as the Board uses that term to designate persons who are ineligible to vote in representation elections because of their tenuous relationship to an em- ployer In fact, as discussed later, a number of these casuals I regard as discrimmatees and hence "employees" within the meaning of Sec. 2(11) of the Act TOLEDO WORLD TERMINALS Only after the list was exhausted were incidental casuals hired for the day. This practice meant that the cadre of casuals available to TWT, and utilized by it at the outset of its operation in Toledo , was a fairly standard and pre- dictable group of people who were well known in the in- dustry both by union and management officials. Only after Syph took over the hiring and began to hire whom he chose after exhausting the list of 42 preferential hires were men hired who were new to the docks.53 Various Moody supporters who testified recounted nu- merous instances when casuals having little or no experi- ence on the docks were hired by Syph in preference to themselves, even though they were present at shapeup. On some occasions, they were denied employment and found that Syph had phoned other men and asked them to come in to fill in a vacancy in a crew. Syph testified that he hired as casuals the men who showed up most frequently at shapeups . Until the consolidated complaint in this case was issued , TWT kept no records concerning the identity of stevedores present for shapeup who had not been hired . They recorded only the names of those who had been hired. Thereafter, Tefft or Staler made handwritten notations at the bottom of daily hiring sheets indicating whom they saw in the area that were not hired. For the most part, these lists included only Moody supporters. Syph did not maintain daily sign-in sheets for job ap- plicants and kept no other records of unsuccessful job seekers, until it appeared that this information might be needed for purposes of litigation. Thereafter, he made sporadic lists. Over the years C. Moody did compile such information on a daily basis. As a preferred man, C. Moody was almost always on the job and was in a posi- tion to observe who was hired and who was not. Some errors in these sheets were pointed out at the hearing but, by and large, they constitute a reliable record of daily hiring events from 1982 to the present. Another source of information concerning who was present but not hired are the 3707 grievances themselves. Those that dealt with shapeups-and most of them did-indicate that the grievant was (with few exceptions) present on the day noted on the grievance for hire but was not se- lected. Although the Company routinely rejected these grievances for reasons relating to contract interpretation, none of its rejections ever attacked the basic factual premise of the grievance, namely that the signer was ac- tually present for shapeup, but did not go to work.54 Accordingly, I also regard them as reliable records es- tablishing these facts. TWT maintains that, after it took over the hiring in 1984, it established a rule requiring casuals to stand at a particular spot in the warehouse hiring area at the risk of being deemed unavailable for hire at shapeup. No such rule was ever posted . The spot in question was immedi- ately around the podium used by the foreman and inside a mesh fence that divided the hiring area from the locker and lunchroom area beyond. This area was always con- as A list of 26 casuals hired during the 1984 season who had not worked at all in 1981 is set forth , supra at fn. 30 64 Davis testified that he assumed, as a matter of fact, that any griev- ant had presented himself for hire and was not hired 701 gested with job seekers who wanted to be next to the foreman on the podium. As described in the record, the new rule did not pertain to men on the list of 50 who were free to stand or sit anywhere within earshot of the foreman, so long as they responded when their names were called. Tefft and Staler indicated that the rule was aimed at various individuals who "filed grievances" and who were in the habit of congregating each morning near the shapeup, area but beyond a mesh fence in the lunchroom. 55 Although many witnesses testified that they had never heard of the rule, or had heard a foreman make mention of it only shortly before the hearing began in this case, Tefft and Staler testified that, on three or four occasions between May 1984 and the summer of 1985, they had told assembled applicants at shapeups that, if they wanted to be hired, they had to come over and stand next to the hiring podium. Several witnesses testified that they regularly stood in that spot, but their presence did not result in employment. There is little doubt that, on various occasions when the Company needed day laborers, foremen (and particularly Syph) rounded them up wherever they could be found, either on or off company premises. Davis testified that it was acceptable to TWT if a casual were denied employment because he was an active supporter of Local 1982, adding that a person so affected had no remedy under the grievance procedure. B. Analysis and Conclusions 1. The supervisory status of Moody , Syph, and Edwards Both the original memorandum of understanding and the first contract between TWT and the ILA, incorpo- rating by reference the terms of the Cleveland agree- ment, spoke in terms of a union employment office and a hiring hall system. These contracts envisioned a system under which TWT would first seek employees, other than preferred employees, from an ILA office under a referral system that would give preference in referral to experienced employees, i.e., those having 800 or 1000 hours of employment on the docks in the preceding season . TWT would then be free to hire from "any other available source" after exhausting referrals available from the "employment office." In fact, the hiring provisions of the memorandum of understanding and the Cleveland contract, as well as later ILA-TWT agreements, were never carried into effect in Toledo . The ILA has never operated an employment office in Toledo during any period of time pertinent to this case. There has never been a conventional hiring hall arrangement in effect be- tween these parties , and the hiring procedure that was followed until May 23, 1984, was one in which TWT simply hired the ILA dock steward and lines dispatcher as its own supervisors and allowed them to perform TWT's daily hiring function in the manner outlined earli- er in this decision. There is no dispute that Moody, during his term as dock steward , and Syph thereafter, as When asked why these individuals repeatedly showed up each day at shapeup time if they did not want to be hired, neither Tefft nor Staler had an answer 702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were agents of the Respondent ILA for whose acts and conduct the ILA is vicariously responsible. The same holds true for Edwards in 1981 . It is equally clear that they were supervisors for TWT within the meaning of Section 2(11) of the Act, for whose statements, acts, and omissions TWT was also vicariously responsible. The fact that these individuals were agents of the ILA for hiring purposes does not preclude them from being agents of TWT as well, since a hiring official can be a dual agent. Master Stevedores Assn., 156 NLRB 1032 (1966); Daugherty Co., 147 NLRB 1295 (1964); Plumbers Local 17 (FSM Mechanical Contractor), 224 NLRB 1262 (1976); Southern Stevedoring Co., 230 NLRB 609 (1977); IATSE Local 592 (Saratoga Performing Arts), 266 NLRB 703 (1983). While bearing the title of dock steward, both Moody and Syph were regularly employed by TWT-the first to be hired and the last to be discharged. Their annual incomes far exceeded the incomes of the working steve- dores whom they selected each day for employment. So long as any stevedoring employee worked on any given day, Moody (and later Syph) were entitled to be paid. I credit an abundance of testimony in this record that, in 1981, Moody (and later Syph) actually did the hiring of all experienced and casual employees who were hired at shapeup. Their daily function was to call the roll and to allow those who answered their names to select a day's work from among the jobs still unfilled. In 1981 the marine foreman who was present was merely an observ- er. His function amounted to little more than notifying the steward what jobs he wanted filled and to see to it that the steward filled those jobs. No one whose name was called by any steward was ever denied employment. Regarding casuals hired after exhausting the Local 1982 seniority list, both Syph and Moody had plenary hiring authority. When the system changed in 1982, Syph still retained the authority to call the list of 26 experienced employees in any order he chose and thereby retained substantial discretion to designate who would be hired and who would not. His authority to designate who would receive lines was plenary, and the Respondent emphasized that authority every time it responded to a lines grievance. In 1981, Edwards had the same plenary authority to hire whom he pleased on lines. No one hired by him was ever denied a place on the Respondent's payroll as a linesman. It should be noted that Edwards also worked in 1981 as a preferred man and earned a substantial amount of money as a rank-and-file employee loading and unloading ships. In that capacity he was plainly not a supervisor. It was as a nonsupervisory preferred man that he finished the 1981 season because, on November 3, 1981, he lost his position as lines dispatcher to Syph when Syph became dock steward. After the parties revised the hiring procedure in May 1984, Syph still played a role in the hiring process and retained some discretion in selecting who would be hired and who would not. After shapeups were completed, marine foremen looked to Syph to supply them with casual employees to fill any crew vacancies that still re- mained, and at least Tefft looked to Syph to obtain these men from any source available to Syph. Then, as before, any person selected by Syph was routinely employed. On lines, Syph summoned linesmen by phone from a list supplied by the foremen. Although his discretion was narrowed, he was more than just a phone operator. He could decide who, on a list of 8 or 10 men designated by TWT, would be called first. Thus, he could influence who got more favorable lines assignments, including those that carried weekend premium pay. If, after May 23, 1984, Syph did not actually hire individuals on behalf of TWT, he effectively recommended them for hire and so remained a supervisor within the meaning of Section 2(11) of the Act. 2. Discriminatory motive The pleadings and some of the General Counsel's evi- dence dwell on when Syph took over as steward, he hired relatives and cronies at shapeup and on lines. There is no doubt that this was a pervasive practice on the part of Syph, and he said as much to various Moody supporters. The General Counsel points out that the ILA never adopted objective criteria, other than an hours-of- work requirement, governing the hiring arrangement that existed at TWT, and that it never posted any such crite- ria for the benefit of job applicants. Because the ILA never operated an employment office or hiring hall, there was no place for it to post any hiring hall rules, except perhaps on company premises. The theory ad- vanced by the General Counsel presumes the existence of a conventional hiring hall situation at the Port of Toledo during the period here in question, which never came into being. Such an arrangement presumes the ex- istence of a union hall, apart from company premises, which is operated by one or more union officials who are paid by the union, not the employer, to operate that hall. In the course of their duties, they are obligated to send men to a company personnel office or to a hiring foreman, who is then obligated either to put them on the company payroll by virtue of the fact of referral or to call for more men. Here the dock steward doubled in brass as a company supervisor. If the theory underlying the General Counsel's contention were to be followed, it would be necessary first to find that the dock steward- supervisor referred men to himself and then hired them. This is conceptually absurd. It also results in giving the term "discrimination," as used in Section 8(a)(3) of the Act, a totally different meaning depending on whether it is to be applied to an employer or to a labor organiza- tion.56 Moreover, such a theory is wholly unnecessary to the General Counsel's case under the facts in this record. Syph made it quite clear what he was about. He re- peatedly said to friend and foe alike that he was going to drive the Moodys off the docks, that eventually only his relatives and friends would be working, and that he was doing so in order to "build me a union." He even criti- cized a marine foreman for hiring Moody supporters, be- cause placing them on the payroll would undermine his ongoing effort to use company employment as patronage to build a political following and to secure his status and 11 See IATSE (Saratoga Performing Arts), supra at 708-710 TOLEDO WORLD TERMINALS that of the ILA among Toledo dockworkers . The hiring of friends and relatives, most of whom could presumably be counted on to support Syph in any confrontation with the Moody faction, is direct evidence of an illegal motive since discriminations arising out of intraunion political activities are as violative of the Act as are discrimina- tions based on animosity toward all union activity. Oper- ating Engineers Local 675 (Multi-Craft), 271 NLRB 1227 (1984); Laborers Local 282 (Austin Co.), 271 NLRB 878 (1984), and cases cited at 883 . Similarly, threats directed at a member's employment status arising out of intraun- ion friction, if uttered by an official who is in a position to carry out the threats, are a violation of the Act. Car- penters Local 1281 (Raber-Kiel, Inc.), 152 NLRB 629 (1965). If coercive or discriminatory deeds can be linked to in- traunion animus, then a violation of the Act has also been made out. It is a violation of the Act for a union to retaliate against a member for filing a complaint concern- ing the manner in which his business agent handled a grievance,57 for filing an intraunion charge or griev- ance, a 8 or for filing an unfair labor practice charge with the Board.59 It is also an unfair labor practice for an em- ployer to threaten reprisal or take reprisal against em- ployees for circulating a decertification petition or a showing of interest petition in support thereof, and there is no reason to believe that such reprisals are any the less coercive if uttered by union officials . 80 Union stewards enjoy the same protections from coercion t'r reprisal aris- ing from intraunion rivalries that ordinary members do.6t 3. Independent violations of Sections 8(b)(1)(A) and 8(a)(1) of the Act This record is replete with statements by Syph that constitute violations of Section 8(b)(1)(A) of the Act. Such statements are also a demonstration of deep and abiding animus on the part of the ILA toward dissident Local 1982 members and constitute compelling evidence of the motivation that prompted other substantive viola- tions alleged in the amended consolidated complaint. The General Counsel did not see fit to allege in the complaint that such statements, when uttered within the 10(b) period, also amounted to a violation of the Act on the part of TWT, notwithstanding the fact that Syph was its supervisor and agent and that his statements are vicari- ously attributable to TWT as well. Accordingly, no vio- lations on the part of TWT arising out of Syph 's remarks will be found. His statements, however, constitute evi- dence of animus on the part of TWT toward Local 1982 dissidents, irrespective of whether the statements were made before or after the commencement of the 10(b) 67 Plumbers Local 121 (M. J Doyle, Inc.), 223 NLRB 1250 (1956). 58 Groves-Granite, 229 NLRB 56 (1956) 58 Tawas Tube Products, 151 NLRB 46 (1965), Telephone Workers of Pennsylvania Local 58, 194 NLRB 461 (1971), Electrical Workers IBEW Local 481 (Amick Electric), 196 NLRB 104 (1972), Painters Local 1555 (Alaska Constructors), 241 NLRB 741 (1979). 80 Molders' Local 125 (Blackhawk Tanning), 178 NLRB 208 (1969), Tel- evision Wisconsin, 224 NLRB 722 (1976), Machinists Local 66 (Smith-Lee Co.), 182 NLRB 849 (1970) 81 NLRB v UAW Local 212, 690 F 2d 82 (6th Cu 1982), Teamsters Local 79 (Carl Subler Trucking), 269 NLRB 1132 (1984) 703 period, and they will be relied on to lay bare any puta- tive unfair labor practices committed by TWT within the 10(b) period.62 I credit the testimony of Merrill that, sometime in the summer of 1983, he had occasion to talk with Marine Foreman Tefft concerning the filing of grievances. As noted above, Merrill had filed a number of grievances on forms provided by Moody and, in fact, continues to do so. Tefft, who regarded Merrill as an individual who is "easily led," told Merrill that he should not be hanging around the Moodys because they were a bad influence and might cause him to lose his job completely. Tefft also warned Merrill that he should not file any more grievances. Merrill rejected Tefft's warning, telling him that this was a free country and he would associate with whom he pleased. These warnings and threats on the part of Tefft constitute a violation of Section 8(a)(1) of the Act and are direct evidence of animus on the part of TWT. I also find that the ILA violated Section 8(b)(1)(A) of the Act by the following statements, outlined above, which were uttered by Syph to several members of Local 1982 on various occasions from late in 1981 until the time of the hearing in this case. (a) Syph's tirade at the docks on taking over on No- vember 3, 1983, directed toward R. Moody and Ed- wards, that "You-are done. You and the Moodys are done . . . . You're fired. You don't know how much power I got.... I'm a professional -. I know how to - a -. You're through. You're fired, you s.o.b." (b) Syph's telephone statement to Tucker that, if Tucker did not sign a pledge card for a new local, he would be "left out," and his later direct statement to the same effect, namely that Syph was going to organize an- other local and that if Tucker did not sign a pledge card for it, was not going to work. (c) Syph's statement to Levesque to "sign this card and you can work" and his further statement that "I'm going to see that nobody is working but my friends and family." (d) Syph's statement to the foreman at the dock, when the latter had hired Boyd and other Moody partisans as casuals, that "If I had my way, none of those s.o.b.'s would be working." (e) Syph's statement to Gaines, on requesting him to sign a pledge card for a new local, that "If you don't play ball with me, I'll get you off this dock if it's the last thing I do." (f) Syph's statement to Howard that, if he did not sign a pledge card for a new local immediately, it would eventually cost him $600 to join. (g) Syph's statement to Conley, after Conley had re- fused repeatedly to sign a pledge card, that "I can't hire you no more." (h) Syph's statement to Merrill that, if Merrill did not sign a pledge card, he would never get another day's work. e2 See IAISE (Saratoga Performing Arts), supra at 702 fn 2 704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (i) Syph's statement to Hollinger that, when a "new local gets in, whoever doesn't sign a pledge card wouldn't be working." (j) Syph's statement to Bacon that, if Bacon did not sign a pledge card, he would be "left out." (k) Syph's statement, on the opening day of the 1982 season, to C. Moody, Levesque, and others, that he "didn't give a - if the Company fired all the Moody people" and that he was not Levesque's "g.d. steward." (1) Syph's statement to Levesque when the latter pre- sented a grievance, to "get (his) g.d. ass out of the office and don't come back no more. You're fighting the wrong battle and you're on the wrong team." (m) Syph's statement to Franklin D. Moody, on the presentation of a grievance, that "You're a smart- mouthed s.o.b. I'll see that you never get hired." (n) Syph's statement to Levesque that he was going "to get everyone of the g.d. Moodys off the docks and then retire and turn it over to Chevalier." (o) Syph's statement to Tefft in the presence of various members of Local 1982 that "They're grievants, but I don't owe those s.o.b.'s back there nothing." (p) Syph's complaint to Staler about Levesque that "You mean you hired that s.o.b. after all the grievances he filed." (q) Syph's statement to Bradford that, if Bradford kept on filing grievances, he was not going to work. (r) Syph's statement to Evans, on presentation of a grievance, that he (Syph) should have left Evans in prison. (s) Syph's statement to Hampton, on presentation of a grievance, that Hampton, a Moody supporter, was a "dumb -"who would not get hired. (t) Syph's refusal to permit Edwards to serve as a wit- ness at a grievance meeting because Edwards was "one of those - who is trying to ruin things around here." (u) Syph's statement to Gaines, a Moody supporter, that "you won't get no work down here so you might as well quit." (v) Syph's statement to Foster that Foster's association with the Moodys was one of the reasons he was not being hired, and that it would be helpful to Foster if he stopped associating with the Moodys. (w) Syph's statement to Howard, when the latter pre- sented him with a complaint about not being hired, that Syph did not represent anyone from Local 1982. (x) Syph's statement to Byrd that he was going to get rid of the Moodys and "all the guys who stuck with the Moodys." (y) Syph's further statement to Byrd that, if a trustee- ship over Local 1982 was imposed, he was going to kick out the Moodys and anyone who stuck with them. (z) Syph's statement to Conley, on the presentation of a grievance, that Conley's grievance did not mean any- thing because he was on the wrong ball team, and his re- iteration of this threat during the course of the same con- versation. (aa) Syph's statement to Shoecraft and McCully, on presentation of a grievance, that "If you hang around the Moodys you'll find yourself outdoors. They'll be making the money and you won't be making any money at all." (bb) Syph's statement to his brother, in the presence of Edwards, that "If those s.o.b.'s keep filing grievances, they are never going to work." (cc) Syph's warning to Hollinger to "keep a low pro- file" and refrain from filing grievances, and his further statement to "keep your nose clean and I'll see what I can do for you." (dd) Syph's statement to Ramirez, in the presence of Hollinger, "Let `Lefty' suffer a little bit. He's with the Moodys and them guys. Let him suffer a little bit. He'll be back to work." (ee) Syph's statement to Highsmith that anyone who files a grievance would be fired. (ff) Syph's statement to Edwards at the end of the 1982 season regarding Edwards' hours, "Edwards, you're through." (gg) Syph's statement in the presence of Howard that he was discriminating in employment against named Moody supporters and that some of them would not, in the absence of a miracle, have enough hours in 1983 to be hired in the future. His phrase was, "When it comes to - a - around, I'm an expert." (hh) Syph's statement in the presence of Howard that he was taking steps to see to it that Robert Moody would not work sufficient hours in 1983 to remain on the "experienced" list for 1984, and that he was "watching (hours) like a hawk watching chickens" to make sure that his friends would be included and that Moody sup- porters would be left out. (ii) Syph's statement that the Company was enlarging the ranks of "experienced" or "qualified" men in 1984 so that ratification of the new contract would be insured. Shortly after the consolidated complaint issued in this case in the spring of 1984, Syph had occasion to discuss this case with Howard and to compare it with the U.S. district court proceeding before Judge Young, which had taken place in 1981 and 1982. Syph told Howard that District Judge Young would not have a "damn thing" to do with the forthcoming NLRB proceeding and that "I'm going to have my federal judge" hear the Board case. No authority has been presented to the effect that a statement reflecting on the impartiality of a forthcoming Board proceeding constitutes a violation of the Act, so I will not find a violation based on these re- marks. However, Syph's statement is further evidence of animus and will be regarded as such. 4. The removal of Charles Moody as dock steward On November 3, 1981, Charles Moody was removed as dock steward and became a rank-and-file employee enjoying "preferred" status in hire. He retains that posi- tion today. This action brought about a substantial change in Moody's employment situation and his annual earnings. There is no doubt why he was so treated. Acting in response to a vote of the executive board and of the membership of Local 1982, Moody filed two representation petitions and an unfair labor practice charge on October 2. He followed up this action by filing two additional representation petitions on October 31. The ILA's response was swift and angry. Sullivan called Moody, asked him what he thought he was doing, TOLEDO WORLD TERMINALS and told him bluntly, "We can't stand for this." Sullivan then recommended to the ILA's general president that Moody be removed, and the general president agreed. A pro forma investigation ensued and an expected recom- mendation was returned to the ILA executive council recommending removal. Moody was removed. Shortly thereafter, he was summoned to face internal charges seeking to discipline him both for filing representation petitions and an unfair labor practice charge. The out- come of that effort was stymied only because Moody and others obtained a district court injunction, still in effect, which prevented the ILA from going any further. Cases cited above make it abundantly clear that taking internal union action or causing the discharge or other adverse personnel action against a member because he seeks to vindicate his rights or the rights of others before the Board is an unfair labor practice. Shop stewards are not exempted from this protection. It is true that Moody, in addition to being a shop steward, was ipso facto a su- pervisor at the time of his removal. This does not exempt him from the protection of the Act. In a long line of cases beginning with Better Monkey Grip Co., 115 NLRB 1170, enfd. 243 F.2d 836 (5th Cir. 1957), the Board ex- tended the mantle of the Act's protection to supervisors who are discharged for union activities, including but not limited to the filing of charges or petitions.63 Recent revisions of the Act have not withdrawn that protection from supervisors who file charges and petitions or who testify before the Board, either in representation or in unfair labor practice proceedings. Parker-Robb Chevrolet, 262 NLRB 402 (1982); A & E Stores, 272 NLRB 737 (1984). Accordingly, by its action in removing Charles Moody as dock steward and causing TWT to effectuate a substantial change in Moody's employment status, Re- spondent ILA violated Section 8(b)(1)(A) and (2) of the Act. 64 5. The demotions of Edwards and Marsenburg Both Edwards and Marsenburg, staunch Moody sup- porters, were "preferred" men in 1981. Edwards was and still is generally recognized as the number two man in the Moody faction. Both Edwards and Marsenburg worked well in excess of the 1000 qualifying hours de- manded of experienced employees under the contract. There is no suggestion in the record that either was an unsatisfactory employee. Edwards was, during 1981, both the lines dispatcher and a laborer and forklift opera- tor. On November 3 he lost his position as lines dispatch- er and was thereby stripped of any indicia of supervisory authority. Marsenburg worked mostly as a checker, but was also assigned to work as a forklift operator and as a laborer. At the beginning of the 1982 season, they were 63 See, e g, VADA of Oklahoma, 216 NLRB 750 (1975), Donelson Packing Co., 220 NLRB 1043 (1975) 84 The actions of the ILA directed against Moody cannot be excused, as the ILA argues in its brief, because Moody was a union official whose action in filing a decertification petition struck at the core of the Union's status as bargaining representative Moody's removal as dock steward was not a mere internal union matter It had a devastating effect on Moody's employment status and, over the years, it cost Moody many thousands of dollars in lost income A union is not free under the Act to effectuate internal union policies by actions that detrimentally affect a member's employment status 705 replaced on the preferred list by two Syph supporters- Walter Sampsel and Joseph Victorian-who, in 1981, had worked 358 and 225 hours, respectively. To cushion this blow, Edwards and Marsenburg were both given preference in order of call among the 26 experienced em- ployees, but this preference availed them little. Edwards worked 301 hours in 1982 and Marsenburg worked 243 hours. Neither received any compensated lines assign- ments, although Sampsel received 44 hours of lines and J. Victorian got 99. As a result, Edwards' total hours de- clined 74 percent, while Marsenburg's loss of hours was 81 percent, in a year when the overall decline in hours worked by stevedores was 26.7 percent. Their preference in call as experienced men was short- lived. In 1983, both lost this standing at the beginning of the season and were assigned by Syph among the 26 ex- perienced men in any order he saw fit. As a result, by the beginning of the 1984 season, Marsenburg lost all preferment and became a casual while Edwards came within 94 hours of losing his experienced rating. Ed- wards testified without contradiction that he never missed a shapeup. Marsenburg's 1980 operation and sub- sequent health difficulties accounted for only a few ab- sences at shapeup. The background of animosity toward all Moody sup- porters was, as outlined above, both deep and abiding. The day that Syph took over as dock steward he threat- ened to drive Edwards off the docks and told Edwards that he was fired. Syph's animus toward Marsenburg was also expressed on at least one occasion when he called Marsenburg a scab. As noted above, this animus on the part of Syph is attributable to both Respondents. TWT justified its action in replacing Edwards and Marsenburg with Sampsel and Victorian on the basis that it needed more versatility. Sampsel was a checker and J. Victorian could operate a crane as well as other machin- ery. If it wanted to place J. Victorian and Sampsel or anyone else on the preferred list for any reason, TWT was contractually free to do so. What TWT never ex- plained is why it felt called on to remove Edwards and Marsenburg from that list in 1982 in order to make room for two Syph supporters. TWT was contractually free to maintain a preferred list of any size. Early in the 1981 season, it started operations with a list of 13 and quickly increased that number to 16. In 1982, it was free to en- large that list to any other number it chose. Instead of increasing the size of the list when it wished to add the names of J. Victorian and Sampsel, TWT opted to remove two men, and the two it chose to remove were the only Moody supporters on that list other than Charles Moody himself. It strains credulity to believe that this selection was mere coincidence. Staler told Edwards that he had been removed from the preferred list because of politics. It is equally clear that Marsenburg was removed for the same reason. Davis admitted that he discussed the proposed revision with ILA officials before making it and they agreed. Their agreement indicates collusion with this action, al- though it suggests that TWT rather than the ILA was the moving party. However, the ILA cannot absolve itself from responsibility for what occurred. If the ILA 706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was not the efficient cause of this substitution, its hostili- ty toward Local 1982 and the Moody faction was at least the material cause for the selection of Edwards and Marsenburg, rather than 12 or 13 other preferred men, for demotion to make room for Sampsel and J. Victori- an. Accordingly, its participation in the event was suffi- cient to constitute "an attempt to cause" TWT to dis- criminate on the basis of union considerations , in viola- tion of Sections 8(b)(1)(A) and (2) of the Act. Because of limitations, TWT cannot be charged with a violation for the 1982 demotion of Edwards and Marsen- burg from preferred status. At the beginning of the 1983 season, however, TWT discontinued their preference in order of call on the experienced list. On that occasion, it committed a further discrimination in employment based on union considerations, and it did so less than 6 months before the filing of the CA charge in August 1983. Ac- cordingly, by removing the preference in order of call that Edwards and Marsenburg enjoyed up to the begin- ning of the 1983 season because of intraunion factional considerations, TWT violated Section 8(a)(1) and (3) of the Act. 65 6. Grievances In Miranda Fuel Co.,6 6 and its progeny, the Board took on itself the task of policing the relationship of labor organizations to their members to insure that mem- bers are not subjected to actions that, in a general sense, are taken or acquiesced in for reasons that are "irrele- vant, unfair, or invidious." Such actions include adjust- ments of seniority, referral to jobs, and negotiation of contract terms. For the most part, this doctrine has been used to police the processing of grievances and the taking of grievances to arbitration. Because the process- ing of grievances, as well as many other aspects of union representation, involve nice questions of judgment and discretion, the Board has had to second-guess the judg- ment and discretion of business agents and union officers in many concrete situations to determine if their acts were performed in good faith or were marred by "irrele- vant, unfair, or invidious" considerations. The simple fact is that grievances lodged by individual union members can be frivolous or have questionable merit, and problems of proof can be difficult or impossi- ble to overcome in cases that appear on their face to have merit. Unions have limited resources to devote to their responsibilities and cannot take every grievance to arbitration. Moreover, union officials are fallible and most lack legal training, so they sometimes make mis- takes as they undertake the representation of a member. If the Board required every grievance to be processed to the highest step of the grievance procedure or beyond, 85 TWT's insistence that it could not discriminate among its employees on the basis of union considerations because all of its employees were members of Local 1982 deserves only a short footnote TWT was well aware of the factional fight between Moody and Syph supporters. Its marine foremen, Staler and Tefft, were old hands on the Toledo docks and were well aware of who was in which faction. Edwards' removal as lines dispatcher on the arrival of Syph as dock steward was a matter of prominent company and general knowledge on the Toledo waterfront, and Syph's intimate knowledge of who belonged to which camp is imput- able to TWT because of Syph's status as a TWT supervisor 66 140 NLRB 181 (1962), enf denied 326 F.2d 172 (2d Cir. 1963) employers would be inundated with complaints by union officials acting out a scenario in order to avoid liability for "irrelevant, unfair, or invidious" behavior. Moody testified that he felt it was a union official's responsibility to process every grievance filed by a member, regardless of whether the grievance had merit. As a statement of personal philosophy, his position is outside the realm of official comment. As a matter of law, it is simply untrue. 87 The ILA seeks to escape liability for the mishandling of grievances filed by Local 1982 members and others on the basis that it was overwhelmed with a plethora of complaints that were filed for political purposes, that most grievances were taken to the third step and were denied, that most grievances were in fact without merit under the contract as the ILA construed that contract, and that repeated grievances on the same decided points were filed by grievants who knew their complaints were without foundation, but who filed them just to harass the dock steward and the Company. Respondent ILA seeks to come under the umbrella of several decisions in the Miranda Fuel line of cases to the effect that a union is under no obligation to process unmeritorious grievances or to take frivolous complaints to arbitration, and that most of the complaints filed by "Moody men" were just that-frivolous and unmeritorious. Miranda Fuel and succeeding cases are of consequence only when a union's conduct or misconduct is unaffected by conventional union or intraunion considerations, thus forcing the Board to look to other factors to determine if a violation of the Act has taken place. Indeed, it was this fundamental distinction that the Second Circuit deemed to be controlling when it reversed the Board in Miranda Fuel. Where, as here, a respondent union's handling of grievances is permeated by factional considerations and animosity growing out of intraunion political consider- ations, the Miranda Fuel doctrine is simply inapplicable and it is unnecessary to inquire whether, in addition to its flagrantly discriminatory motivation, the actions of the ILA were also invidious, unfair, or irrelevant. If the grievance machinery is operated to the detriment of grievants because the union wishes to punish them or to dissipate the strength of political dissidents, then the cor- rectness of the judgment and discretion of union agents who handled the grievances, or their diligence in pursu- ing them, is itself irrelevant. Syph admitted that he never made any investigation into the merits of any grievance that had been filed with him, other than to consult the Company. He admitted that he never argued the merits of a grievance to the Company in the posture of an advocate. He never took a grievance to arbitration because he never disagreed with the company position regarding any of the 3700 griev- ances that were filed between 1981 and 1984. He never pursued the question of payment of a sum held in escrow as the result of the granting of a grievance by the Com- 87 Auto Workers (North American Rockwell), 194 NLRB 1085 (1972); Retail Clerks Local 1357 (Lit Bros.), 192 NLRB 1171 (1971); Postal Work- ers Local 4193 (U.S. Postal Service), 226 NLRB 1000 (1976), Brewery Workers (Miller Brewing Co.), 195 NLRB 772 (1972), Teamsters Local 542 (Golden Hill), 223 NLRB 533 (1976). TOLEDO WORLD TERMINALS pany in 1981, because he had faith that the Company would get around to paying when it felt like it. He made an effort to discourage grievants from filing grievances by telling them at one time that he would only be avail- able to receive grievances after shapeup, and grievants would have to come to his office to file. Although the Company insisted that oral presentation of a grievance to the foreman was an essential first step in processing, Syph never took up any grievance with any foreman, other than on one or two occasions discussed in this de- cision. For that matter, the company president never took up the merits of any grievance with any of the fore- men either. Foremen were simply out of the picture in processing grievances, although the contract indicates quite clearly that they should be an integral part of step one. Syph often referred to grievants as scabs, dummies, s.o.b.'s, and in other perjorative terms. On occasion, he told grievants that their written grievances had not been presented in proper form, but he did not bother to assist in wasting them in an acceptable format. On occasion, Syph's contempt for grievants sounded a peculiarly in- sulting and demeaning note as he handed men whom he knew were illiterate blank sheets of paper and told them to write out their complaints in longhand instead of using forms provided to them by his arch rival. However, his conduct need not be evaluated merely on the basis that it was unfair, invidious, or discriminato- ry in some general ethical sense. Syph behaved as he did for conventional discriminatory motives and he was not bashful about saying so. The 30 or more instances of 8(b)(1)(A) conduct found above are the proper measure of his attitude toward union dissidents, both in adminis- tering the grievance machinery and otherwise. Syph told Tefft on one occasion that he did not owe grievants any- thing, punctuating his comment by calling them s.o.b.'s. He told one grievant that he was "on the wrong team." He told another that he should have left him in prison. Syph threatened a grievant that he would not be hired at shapeup if he continued to file grievances. He told an- other to go see Moody because Moody was his steward. He told yet another that, if the grievant continued to hang around the Moodys, he would find himself out- doors. It would serve no purpose to reiterate any more of the other findings made above concerning Syph's ille- gal statements to and about grievants. Suffice it to say that they place beyond all prudent doubt the fact that Syph and the ILA operated the grievance machinery es- tablished by the ILA-TWT contract in a manner calcu- lated to restrain and coerce union members in the exer- cise of rights guaranteed to them by Section 7 of the Act and, in so doing, violated Section 8(b)(1)(A). I so find and conclude. 7. Discrimination in employment The question of discrimination in employment since November 3, 1981, is the core of this case and this issue is a vexing one, not because of any scarcity of evidence of animus, but because of the impact of shapeup proce- dure employed by TWT (and traditionally by most em- ployers in the stevedoring business ). In a factory or store setting, employment is a continuum that proceeds from 707 day to day and week to week. Employees are not hired at the beginning of each day and laid off at the end of the day. If they are terminated, for discriminatory rea- sons or any reasons, an abrupt halt comes about in their relationship with their employer at a particular time, and the reason for the termination can be assessed on the basis of evidence available. As a result, when a backpay remedy for illegal conduct is appropriate, the beginning and end of the backpay period normally can be deter- mined quite easily, although offsets and other defenses may cause a supplementary proceeding to be hotly liti- gated in a few instances. In an industry employing a daily shapeup, no one is really hired until he is told, either at shapeup or at some other point in time, to go to work at a particular job on a particular day. Employees are essentially ongoing ap- plicants whose prospects for a day's work may, in some instances, be quite good, but who are never wholly as- sured of working on any given day until their application is accepted in some manner and they are instructed what job to take for the day. If an individual does not show up at shapeup for any reason, he is normally not hired. With the exception of preferred men, there is usually no work between December 15 and April 15 of the follow- ing year. Regarding lines, the procedure in effect before May 23, 1984, was that every employee was essentially on call, but had no work until he was called. Although Edwards made some effort to equalize lines, the result of his effort was at best a rough approximation of a norm. Syph made no such effort at all. Moody testified that Local 1982 now has 135 paid up members. In his view, most if not all of them are discri- minatees. In his bill of particulars, the General Counsel narrowed this number to some 107 Local 1982 members who could properly be deemed "Moody men" and dis- criminatees. The problem with both of these contentions is that, in order to become a discriminatee, one must be an employee first. Long ago that term was construed broadly enough to include job applicants.68 There are only about 50 regular or semiregular job slots at TWT, however. Only 90-110 different individuals are hired in the course of an entire shipping season, and this fact alone limits the number of those who can lay any claim to be bona fide applicants in any realistic sense. These factors pose problems in determining who is an employ- ee. One cannot be deemed a discriminatee simply by being a member of Local 1982, while making no effort to apply for work. The question of how to compute back- pay for such sporadic applicants further muddies the waters, as does the contention of the General Counsel that many Moody men simply stopped coming to sha- peup because they knew that Syph would not hire them, arguing from this premise that their nonappearance should not be deemed a failure to seek daily employment under normal shapeup practice. This contention is well founded. Crawford Container, 234 NLRB 851 (1978). One can hardly claim discrimination in employment on the basis of loyalty to Local 1982 or to the Moody fac- tion if one did not acquire with TWT some kind of em- 68 Phelps Dodge Corp v NLRB, 313 U S 177 (1941) 708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployment status in 1981 when Moody was doing the hiring, or if one's employment status in 1981 was limited to one or two calls for lines. The core of company em- ployment is the loading and unloading of ships, for which shapeup appearances or status on the preferred list was a requisite. Lines simply provided a few extra hours of pay to supplement earnings derived from the principal part of a day's work. If one worked at shapeup in 1981 and then worked fewer hours in 1982 there is a solid basis for claiming a discrimination in hire or tenure, within the meaning of Section 8(a)(3) of the Act. TWT's argument that steve- dores got less work in 1982 because there was less work to do cuts little ice because some 20 TWT employees re- ceived more hours of employment that year than they did in 1981. There was in fact less work to do in 1982, but there was much less work to do for many individuals because working hours had been rearranged to suit polit- ical needs and desires of both respondents. The 63 indi- viduals listed in Appendix A of this opinion were all Moody men. Moody acknowledged them as such and Syph did not contest his evaluations. Each of them signed one or more petitions that were forwarded to the ILA or the GLD in support of Moody positions taken in the factional fight that erupted anew in fall 1981. Ac- cordingly, their sentiments were well known to ILA and GLD officials, including Syph.69 Each of those 63 worked at shapeup (or on the preferred list) in 1981 and most worked on lines as well. A company record in the form of a printout indicates that all 63 were hired either on April 20, 1981, the first day of hire in the 1981 season, or at some later date during the 1981 season. Each received fewer hours of work in 1982 than in 1981. As a class all were the subject of the intense anti-Moody sentiment that has been detailed above. Many were per- sonally disparaged and berated by Syph for their support of the Moodys. These factors taken together are suffi- cient to make them both TWT employees and men who suffered discrimination on the basis of intraunion faction- alism. By discriminating or causing TWT to discriminate against them in hire or tenure on the basis of union con- siderations, Respondent ILA violated Sections 8(b)(1)(A) and (2) of the Act. 7 ° Because of limitations contained in Section 10(b) of the Act, TWT may feel that a comparison of hours worked in 1981 against hours worked in 1982 cannot form a basis for a finding of discrimination on its part, since such a finding includes operative facts that predate the time in which TWT has any exposure under the Act. A similar comparison between the hours worked in 1981 by °° Most significant of these petitions was the one submitted by Moody to the ILA on January 22, 1982, well in advance of the 1982 season, in which Moody protested the effort of the Syph faction to form another local 70 Under well-established law, these 63 individuals, as discrumnatees, would be eligible to vote in any representation election conducted by the Board among the ranks of TWT's stevedores OKeeffe Electric Co., 158 NLRB 434 (1966), L. B Foster Co., 192 NLRB 319 (1971); Atlantic Foundry & Pattern Corp, 192 NLRB 745 (1971), Gary Aircraft Corp, 193 NLRB 108 (1971); Truck & Trailer Service, 239 NLRB 967 (1978); El Fenix Corp, 234 NLRB 1212 (1978); Simley Corp, 233 NLRB 391 (1977), Koehnng Co, 193 NLRB 513 (1971), Pace Motor Lines, 260 NLRB 1395, 1413-1414 (1982) Moody supporters listed in Appendix A and the hours worked by those same individuals in 1983, after TWT's potential liability began, tells the same story. The 1983 shipping season was a better season than 1981. Employ- ment opportunities, measured in total hours worked by all TWT employees in those 2 years, improved, in that there was 10.5 percent more work available in 1983 than in 1981. Notwithstanding this fact, 61 of the 63 Moody men listed in Appendix A worked fewer hours in 1983 than in 1981. For many of them, the decline in employ- ment was precipitous. Only Merrill and Ben among all Moody supporters worked more hours in 1983 than in 1981. Merrill worked 10.5 percent more hours in 1983 than in 1981, less than the overall average, and Ben worked 17 percent more hours in 1983 than in 1981. In- terestingly enough, both of these men were dropped from the ranks of experienced employees in the follow- ing year when TWT went about its evaluation procedure in May 1984, because TWT supervisors rated them as poor employees who could not do much of anything and who were too weak to perform any jobs that required exertion and heavy lifting. In short, the same enduring animus that TWT has exhibited toward Moody followers throughout its tenure on the docks resulted in the same discriminatory conduct in 1983 that took place in 1982, and thus forms a basis for fording an 8(a)(1) and (3) vio- lation on the part of TWT in that year, as it did for an 8(b)(1)(A) and (2) fmding against the ILA based on events in 1982. Once an employee becomes a discriminatee, he re- mains a discriminatee until his discrimination is fully remedied. It is not necessary to follow his progress or decline into future seasons in order to have this status re- newed. The question then becomes an issue of the quan- tum of backpay to be received, not of basic entitlement to an unfair labor practice remedy. As a matter of fact the discrimination practiced on the Toledo docks was such that it continued to bear bitter and continuing fruit during all ensuing shipping seasons . Those who failed to work 350 and then 200 hours because of discrimination practiced on them in a prior season thus became further disadvantaged in the following year. By failing to work the qualifying number of hours, an individual could lose his position on the experienced list and, having lost that preferment, would predictably work even less and have an even flimsier chance of qualifying for preferment a year later. In short, the discriminations practiced in this case had a snowballing effect. Syph's statement that he was watching hours of employment like a hawk so that his family and friends would prosper and Moody's fol- lowers would suffer, is a clear indication of ongoing dis- crimination, as is the fact that his plenary power to assign lines in 1982 and 1983 gave him the procedural device to carry out his announced intention. Because of limitations discussed above, the exposure of TWT to unfair labor practice findings and a consequent financial liability can only extend back to February 12, 1983, some 6 months prior to the filing of the first CA charge. TWT's liability should begin promptly on that day. Within 6 weeks of the issuance of the first consoli- dated complaint in this case, Davis wrote a letter to TOLEDO WORLD TERMINALS three of his supervisors in which he told them that the Company was being forced to "change our entire ap- proach to hiring to avoid being victimized by the long existing political history of various dock factions . .. . Therefore, it is our intention to assume total control of hiring practices, based upon qualifications of the individ- uals who, during our time as operators, have worked for TWT." This paper trail led to an evaluation by 3 fore- men of some 63 individuals for 50 slots, 16 of which were preferred and the others of which were denominat- ed as "qualifying." These evaluations established a per- manent cadre of employees who then became eligible to gain "seniority" under a contract that took effect on May 22, 1984, and is still in operation. In fact, TWT was not a victim of a long-existing polit- ical history of political warfare between dock factions. TWT was and remains an active and knowing perpetra- tor of discriminatory practices on the Toledo docks, and the hiring system it established to replace the daily sha- peup is as much a part of those practices as was the sha- peup. TWT attempted to arrange for ILA recognition for its dock employees before it ever received a contract to operate on the docks. Arranging for an ILA contract, including ILA recognition, was as much a part of TWT's preliminary startup activity in 1981 as submitting a bid to the Toledo-Lucas County Port Authority. Seeing to it that neither Moody nor Local 1982 had any say in contract negotiations was equally a part of that effort. TWT first negotiated an oral contract, then assisted in securing authorization cards that would permit the con- tract to take effect, and then memorialized its agreement with the ILA in a memorandum of understanding. The basis for its recognition of the ILA was 13 authorization cards in a unit that numbered more than 100 employees during the first season, but this formality relating to rec- ognition was merely a technicality that was observed to insure that it would not be faced with a negotiator who might insist on contract terms that TWT regarded as un- desirable. It is obvious that TWT looked to Sullivan and others in the ILA hierarchy to keep Moody under wraps during the first season, and their confidence was not mis- placed.' i As discussed above, TWT cooperated with the ILA over the years by using ILA dock stewards as TWT hiring supervisors. As long as peace with the ILA meant tolerating Moody and the Local 1982 seniority list, TWT did so. When it meant doing business with the Syph fac- tion, TWT had no difficulty whatsoever in changing its factional allegiance. Only after the consolidated com- plaint in this case issued did TWT take any steps at all to relieve a situation that it helped to create, and it did so then in such a manner as to insure that the political gains that the Syph faction had made over a period of 2-1/2 years remained intact. Because TWT used ILA stewards as its supervisors, it is not necessary to address the argu- 'i In light of Sullivan's well-corroborated statement that TWT and ILA had agreed on the basic terms and conditions of a contract, as well as the granting of recognition on the basis of 13 cards in a unit many times that size, it is difficult to understand why the Regional Office, and ultimately the Office of Appeals, dismissed Moody's timely filed charges against TWT alleging unlawful assistance to the ILA 709 ments raised by the General Counsel or TWT relating to liability for discrimination in union hiring hall operations arising out of employer acquiescence. There was no hiring hall in operation. TWT's liability for discrimina- tion in employment arose directly out of the daily par- ticipation of its supervisor Syph in discriminatory favor- itism toward his own supporters to the detriment of Moody followers. When it took over the dock operation in 1981, TWT was under no legal obligation to recognize the TOT-ILA Local 1982 seniority list or to recognize seniority on any other basis. Moody and his followers presumed, in filing a multiplicity of grievances, that TWT somehow ac- quired the Local 1982 seniority list when it acquired the dock operation, but such is not the law. Seniority arises only by virtue of contract, and TWT took great pains to state in its memorandum of understanding with the ILA that it recognized no past practices. Having made an express disclaimer in April 1981 of any obligation to recognize the Local 1982 list, TWT went on to give that list recognized status as its own hiring practice and procedure because its own supervi- sors, Moody and Syph, regularly used that list through- out the 1981 season to hire all nonpreferred stevedoring employees who appeared at shapeup. As a result, at the beginning of the 1982 season, the Syph faction outnum- bered the Moody faction 23 to 19 among preferred and experienced men. Two years later, in May 1984, the score was 37 to 12. The result of discontinuing the use of the Local 1982 list at the beginning of the 1982 season and substituting in its place a list of experienced men who would be hired after preferred slots were filled was to accommodate the building of the Syph "machine" and the systematic elimi- nation of Moody followers from the hands of TWT em- ployees. By agreeing to this revision in TWT's hiring practice, Respondent ILA agreed to a discriminatory contractual arrangement and thereby violated Section 8(b)(1)(A) and (2) of the Act. I so find and conclude The bar erected by Section 10(b) of the Act prevents a corollary finding of a violation on the part of TWT until 1983. In 1982, TWT eliminated two of the three Moody sup- porters it had placed a year earlier on its preferred list. Before the beginning of the 1982 season, TWT created a new category of employees with hiring preferment and entered into an oral agreement with the ILA, in deroga- tion of the written contract, which resulted in a selection criteria giving the Syph faction a slight edge among TWT's 42 permanent group of stevedores. TWT allowed Syph to manipulate hours in 1982 to increase the chances that Syph supporters would gain slots as experienced men in the following year. In 1983, TWT placed eight Syph supporters on that list while removing five Moody men. The same ball was still rolling during the 1983 season and, at the beginning of the 1984 season, three more Syph supporters were placed on the experienced list, while two more Moody men were dropped. Then came the personnel evaluations that shortly pre- dated the implementation of the new hiring system in May 1984. I place little weight on the General Counsel's 710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD argument that the selection was illegal because the pool from which selections were made was discriminatorily arranged. I place considerable weight on the fact that the employer who was making the selection had given long and constant support to the Syph faction and had al- lowed Syph to build up a political following by supply- ing him with political patronage in the form of employ- ment on the docks. Moreover, the size of the permanent crew was enlarged from 42 to 50, and the only explana- tion in the record for this increase was TWT's desire to pack the bargaining unit with individuals who would be disposed to ratify the contract, an event that TWT also orchestrated. Davis, who arranged for the selection process and ulti- mately made the determinations regarding who would be selected, gave evidence of his personal animus toward Moody in an affidavit to the district court. In that state- ment he said that TWT would not have come to Toledo if that had meant doing business with Moody and Local 1982. Tefft and Staler were individuals whose relatives were being accommodated by Syph in the same manner that Syph's relatives were being accommodated. Tefft's animus toward the Moody faction was clearly displayed in his conversation with Merrill, recited previously, and by a gratuitous comment he uttered during the course of his testimony in which he referred to Local 1982 as the "damn union." Staler fairly bristled toward Local 1982 in his testimony. It was these three men, plus Hardwick and Lovicott, who evaluated the 1984 group of TWT employees in 1984. It is not surprising that, among those who did not make either list, Moody men outnumbered Syph supporters 11 to 2. Nor is it mere coincidence that the ultimate composition of the list contained 37 Syph supporters and only 12 Moody men, thus radically changing the political complexion of TWT's permanent work force in a short space of 2 years. The combination of biased evaluators and a discriminatory result is enough to make out a violation of the Act. In revising its hiring system, TWT perpetuated the discriminatory features of its previous one in order that it might enjoy the benefit of patsy negotiators across the bargaining table and a patsy steward on the docks. In so doing, it violated Sec- tion 8(a)(1) and (3) of the Act. I so find and conclude. Consideration must be given to the 44 members or former members of Local 1982 whom the General Coun- sel believes to be discriminatees, but whom I find are not.' z Ten of these individuals are dead73 and one is 12 These individuals are H Bates, Clarence Deese, Robert Brock, Alonzo Brown, Fred Carswell, Isaac Cobb, Ronald Coleman, Paul Conley, Lester Corggens, Millard Garner, Fred R Green, Roosevelt Hampton, LeRoy Hardy Sr, Steven Lee Hardy Sr., Steven Lee Hardy Jr., Harry Hensley, Harry Hite, Maurice Hollinger , Alvin C Johnson Jr, Kermit Jones Jr, Kermit Jones Sr, Timothy Jones, R. Logan, Hercules Long, Charles Lolow, Jose Lopez, William Moore, A Murphy, L Oxner, Charles Phillips, F Quinney , Levi Randall, John G. Rhodes Jr, Leonard Russell, William A. Sampsel, J Smith, R Stollar, Henry Swayze, Charles Thomas, Clarence Turner, Alfonso Williamson, Archie D Williamson, Charles Young, and Sam Young. '9 H Bates, Clarence Beese, Alonzo Brown, Fred R Green, Harry Hensley, Maurice Hollinger, Kermit Jones Sr, Charles Phillips, F Quin- ney, and R Stollar listed as disabled (Fred Carswell). Most of them did not work at all during 1981 when Moody was running the shapeup and Edwards was dispatching lines. According- ly, it is difficult to assert that the failure of TWT to hire them in future years was the result of discrimination based on membership in Local 1982 or adherence to the Moody faction. Cross signed Syph's petition to establish a new local and can hardly be deemed a Moody follow- er. Only 11 of this number worked at all in 1981 and, for the most part, this work consisted of one or two lines as- signments of 4 hours' duration. This is hardly enough to establish their status as an employee of TWT. Of these 44 individuals, only 9-Brock, Coleman, Conley, Corg- gens, Green, Hardy (Sr.), Sampsel, Stollar, and Swayze-filed any grievances after Moody was removed as steward, a fact that clearly suggests that the rest were not even applicants for employment during the period of time for which grievances can be found in this record. Of these nine, only Coleman filed more than a handful. It might be argued that these nine had some standing as employees who suffered discrimination, in that they were applicants for employment who were not hired on the dates indicated in their grievances. In light of the vast surplus of applicants who frequently besieged TWT for jobs, however, it is hard to find a preponderance of evi- dence that supports the view that these nine applicants did not get jobs because they were Moody men rather than because there were no jobs to be had. Accordingly, I conclude that these 44 individuals were not denied em- ployment for discriminatory reasons under any theory, and would dismiss the consolidated complaint regarding all of them. On the foregoing findings of fact and on the entire record considered as a whole, I make the following CONCLUSIONS OF LAW 1. Respondent Toledo World Terminals, Inc. (TWT), is now and at all times material has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent International Longshoremen's Associa- tion (ILA) and International Longshoremen's Associa- tion, Local Union No. 1982 are, respectively, labor orga- nizations within the meaning of Section 2(5) of the Act. 3. By causing or attempting to cause Respondent TWT to discriminate against employees and job appli- cants whose names are listed in Appendix A of this deci- sion or any other employees regarding the hire or tenure of their employment because of intraunion factional con- siderations; and by maintaining with TWT a discrimina- tory and unlawful hiring arrangement giving preference to employees and applicants for employment on the basis of intraunion factional considerations over those whose names are listed in Appendix A of this decision, Re- spondent ILA violated Section 8(bX2) of the Act. 4. By the acts and conduct set forth above in Conclu- sion of Law 3; by threatening employees of TWT and prospective employees of TWT with loss of work and other reprisals if they continued to support the leadership of Local 1982; by threatening them with loss of work and other reprisals for filing intraunion charges, unfair TOLEDO WORLD TERMINALS labor practice charges, representation petitions (including decertification petitions), and for refusing to support an effort to charter another ILA local; by threatening them with loss of work and other reprisals for filing griev- ances concerning the dock steward's conduct in hiring applicants for employment; by failing to process griev- ances filed by the TWT bargaining unit because said grievants are members of Local 1982 or a group or fac- tion therein ; by placing Local 1982 in trusteeship and at- tempting to remove its officers; by replacing Charles Moody as dock steward because he filed charges and representation petitions under the Act; by granting a charter to a new local in order to prevent Local 1982 from becoming the collective-bargaining representative of TWT's employees; and by agreeing to modify a col- lective-bargaining agreement with TWT in order to change a preferential status previously afforded to cer- tain employees who were supporters of a dissident union faction, Respondent ILA violated Section 8(b)(1)(A) of the Act. 5. By discriminating against employees and applicants for employment whose names are listed in Appendix A to this decision because of their membership in and sup- port for Local 1982; and by maintaining and giving effect to an agreement or arrangement with the ILA to discriminate in employment against employees and appli- cants for employment whose names are listed in Appen- dix A of this decision, because of their membership in and support for Local 1982, Respondent TWT, Inc., has violated Section 8(a)(3) of the Act. 6. By the acts and conduct set forth above in Conclu- sion of Law 5 and by threatening employees with loss of work if they continued to file grievances and give sup- port to Local 1982, Respondent TWT, Inc., has violated Section 8(axl) of the Act. 7. The aforesaid unfair labor practices have a close, in- timate, and adverse effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that both Respondents have engaged in certain unfair labor practices, I will recommend that they be required to cease and desist therefrom and to take other affirmative actions designed to effectuate the purposes and policies of the Act. Because the unfair labor practices found demonstrate on the part of both Respondents a deep and abiding disregard for the funda- mental rights of their employees and members, I will rec- ommend to the Board broad 8(a)(1) and (b)(1)(A) reme- dies designed to suppress any and all violations of those sections of the Act. Hickmott Foods, 242 NLRB 1357 (1979). I will recommend that Respondent TWT be re- quired to offer to the 63 individuals named in Appendix A of this decision full and immediate reinstatement to their former or substantially equivalent employment and to make them whole for any loss of earnings that they may have suffered by reason of the discriminations found. In the case of Marsenburg and Edwards , a rein- statement remedy means restoring their preferment in order of call among all employees whose names are not on the preferred list. Because Section 10(b) of the Act precludes any finding that TWT violated the Act by re- 711 moving Marsenburg and Edwards from the preferred list in 1982, the remedy relating to their status can only ad- dress the violation found, namely that TWT, in 1983, eliminated their order of call among experienced employ- ees. Accordingly, I must decline the General Counsel's request to direct reinstatement of these individuals to the preferred list. I will also recommend that Respondent ILA share jointly and severally in the payment of backpay due and owing since TWT's liability commenced on February 12, 1983, and that it bear full responsibility for any losses oc- casioned by its unlawful conduct before that date. I rec- ommend that Respondent ILA bear full liability for com- pensating Charles Moody for any losses he may have sustained because of the discrimination in employment that was caused by his removal as dock steward. All backpay should be computed in accordance with the quarterly method set forth in F. W. Woolworth, 90 NLRB 289 (1950), with interest at the adjusted prime rate used by the Internal Revenue Service for assessing interest on tax payments . Olympic Medical Corp., 250 NLRB 146 (1980); Isis Plumbing Co., 138 NLRB 716 (1962). This recommended remedy contains no cutoff date regarding backpay liability. Having recited this almost ritual language governing remedies in discrimination cases, I feel that it is necessary to go further in this case. Normally the formula to be ap- plied for computing backpay is a matter left to supple- mentary proceedings, but such is not always the case." In the case of Charles Moody, the formula is a relatively simple one-the difference between what he would have earned as dock steward after November 3, 1981, less what he actually earned. In the case of Edwards and Marsenburg, who are the subjects of specific individual fmdings of discrimination, the formula is also relatively straightforward-the difference between what they would have earned from 1982 onward as preferred men, less what in fact they actually earned. An equitable number of lines assignments must also be cranked into this computation. The other 60 individuals constitute a class of discri- minatees whose individual members have been identified. Accordingly, it would both be equitable and in keeping with Board practice to provide them a remedy that has been designed for them as a class, rather than require the General Counsel to probe into each day's hiring over a period of 4 years to determine what money is due and owing on a daily basis to each of 60 persons. Such a probe would be particularly difficult in this case because of the failure of both Respondents to keep sign-in sheets or other records (at least until May 1984) showing who had appeared at shapeup, but had not been hired. Such a remedy would also avoid endless controversy concerning which Moody followers had failed to attend shapeups on which days because they had been discouraged from at- tending by previous discriminatory practices, who had 74 See, for instance, Iron Workers Local 373 (Building Contractors), 232 NLRB 504 (1977), Boilermakers Local 154 (Service Contractors), 253 NLRB 747 (1980), and cases cited at 758 fn. 17 712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD been forced to seek other employment, and who stood on which side of the fence at the daily shapeup.? 6 In fashioning a backpay remedy, it is well to heed the words of Administrative Law Judge Thomas A. Ricci in the above-cited Iron Workers Local 373 case: This case at bar brings to light still another in- stance of such widespread flouting of the law, such longstanding, repetitious, and pervasive violations of the statute that the normal or usual remedial Board techniques are pointless. In fact, the record, as a whole strongly suggests that these two local unions are counting upon standard procedural delays inevitably tied to the usual Board practices in order to continue right on with their now long-es- tablished practice of denying work to any hiring hall applications but their own members. It is for this reason that Respondents demand to be shown now each and every instance where they in fact prejudiced a man. That infinitessimal question alone, were it to be permitted to stall this proceeding, would mean months of detailed bookkeeping before a Board finding of any kind could issue-with Re- spondents all the while continuing the illegal prac- tices of the past. This is why I think finding a few hundred separate violations suffices instead. But the same delay-reaching into years-is sought obliquely via the make-whole route. In the normal case, after the Board finds an unfair labor practice was committed, a check is made to ascer- tain how much the discriminatees lost in wages. The standard backpay specifications detail to the penny precisely how much Smith "would have earned" had the union not ignored his right to work. In this case it is not possible to restructure the past-i.e., it is not possible to determine with any rational degree of certainty how much each of the 22 . . . individuals named in the complaints-to say nothing of those in fact discriminated against but not yet identified!-would have earned had they been sent to work in proper rotation. The inquiry in each of maybe a thousand instances would become so ramified and speculative that in the wasted morass of time and energy the misconduct would simply remain unremedied. Counsel for the locals correctly said, at the hearing: "Neither of us are that young to do that." Supra at 517-518. Judge Ricci went on to outline what he called "a guess-but a rational, educated, justified, and unavoid- able guess." His guess was upheld by the Board. He found both the average yearly earnings of illegally treat- ed nonmembers and the average yearly earnings of fa- vored members who regularly received referrals, deriv- ing those figures from union fringe benefit fund records. He then compared the average earnings of discriminatees with an average yearly earning of all employees-both 78 Issues concerning earnings derived from other employment and loss of time due to injury and illness can be asserted as offsets against gross backpay These and similar matters are traditional questions that are liti- gated in supplementary proceedings when they cannot be adjusted ad- ministratively favored and disfavored. The difference between the overall average yearly earnings and the average for dis- cnminatees formed the basis for backpay calculations. To the claim that this formula was speculative and contained guesswork that would prejudice the respondents, the ad- ministrative law judge simply cited the holdings in sever- al court and Board cases to the effect that the burden is on the wrongdoer to establish facts that would mitigate its liability and that, in case of doubt, it is the wrongdoer who should suffer because it is he who is responsible for the existence of any uncertainty involved in the compu- tations. NLRB v. Brown & Root, Inc., 311 F.2d 447 (8th Cir. 1963); United Aircraft Corp., 204 NLRB 1068 (1973); J. H. Rutter-Rex Mfg. Co., 194 NLRB 19 (1971). The same general approach, prompted by the same factors and considerations, should be applied to the for- mulation of a backpay remedy for the 60 discriminatees who, as a class, were the victims of illegal conduct on the part of both Respondents. Record evidence contains the total number of hours that each of these individuals worked in 1981, when presumably they were hired at shapeup and called out on lines without discrimination based on factional considerations (except, perhaps, for the last month of that year). Those hours worked should constitute the base figure for each individual backpay computation. It was established that the Company suf- fered a decline in business in 1982, followed by increases in each of the following years. That decline and those in- creases, measured in terms of overall hours worked by all TWT employees during each season, has been set out in detailed percentage points in this decision. Based on these figures, each of the 60 discriminatees should be held to have worked, had he not been denied employ- ment for illegal reasons, the same number of hours each season as he did in 1981, subject to a percentage reduc- tion or increase for each ensuing season reflecting the annual business decline or improvement for that year. In- dividual offsets, such as interim earnings or time missed because of illness, can then be adjusted after these initial calculations are made. I recommend this formula to the Board as part of the remedy in this case. A further remedial point must be addressed. Because violations of the Act tend to become stylized in Board decisions, remedies for those violations tend to become stereotyped. The Act does not require this result but years of practice have generated it. While reinstatement and backpay are the commonplace remedies for discrimi- nation in employment, in proper cases the Board has issued a bargaining order to complement its finding of an 8(a)(3) violation, without ever finding that a refusal to bargain in violation of Section 8(a)(5) has occurred.76 When such a remedy was challenged as inappropriate, the Third Circuit stated: The design of the Board's order in directing Pia- secki to bargain is to deprive it of the advantage gained in violating the Act. We cannot agree with Piasecki that because the Board found no violation of Section 8(a)(5) it could 76 Piasecki Aircraft Corp, 123 NLRB 348 (1959); Editorial "El Impar- cial."Inc, 123 NLRB 1585 (1959), enfd 278 F.2d 184 (1st Cir. 1960) TOLEDO WORLD TERMINALS not resort to this order as a remedy for the viola- tion of Section 8 (a)(3).77 More closely in point to the matters litigated in this case and to the remedy being recommended is the Board's recent decision in Longshoremen ILA Local 1814 (Jackson Engineering), 265 NLRB 1688 (1982). In that case the Board ordered the employer respondent to cease and desist from recognizing the union that represented its bargaining unit employees , although there was no evi- dence in that case that the union failed to represent the majonty of the employees in question or that the unlaw- ful assistance found had any bearing on the union's ma- jority status. When this remedy was challenged as puni- tive, the District of Columbia Circuit upheld the Board with the following comments: This Court recognizes . . . that the fashioning of remedies in the field of labor relations frequently calls for flexible application of familiar statutory policies to novel factual situations, and that the Board possesses broad discretion in the matching of remedies to wrongs. Cognizant of such administra- tive discretion, and attentive to the central policy of the NLRA-to allow workers free exercise of their rights to bargain collectively-we rule that the rem- edies ordered by the Board bear a reasonable rela- tion to the violations found . Where corruption is en- demic to the relations between an employer and union, the Board is justified in requiring a fresh start under which employees may freely designate a col- lective bargaining representative of their choice. The Board has the remedial authority and re- sponsibility to apply its discretion to all factual con- figurations that come before it; issuance of certain remedies is not limited to standard factual situations. Longshoremen's Local 1814 v. NLRB, 735 F.2d 1384, at 1387, 1388, 1402 (1984). In this case, the General Counsel did not allege that TWT had, over the years, given unlawful assistance and unlawful recognition to the ILA in violation of Section 8(a)(2) of the Act. Evidence adduced in support of the 8(a)(3) violation, however, clearly points to such unlaw- ful assistance and continued recognition. A "fresh start" remedy has a stronger basis in this record than it did in the Jackson Engineering case, for there is considerable doubt that the ILA obtained sufficient cards to acquire majonty status among all stevedoring employees to sup- port its original demand for recognition, and there is an abundance of evidence demonstrating a refusal by the ILA to fulfill its duty to represent fairly all the members of the TWT bargaining unit. TWT began to operate in Toledo in 1981 with the fixed intention of avoiding the institutionalized boondog- gling that had spelled ruin for its predecessors. Having avoided certain mistakes of earlier stevedoring compa- nies, TWT then went on to make some of its own. Prin- cipal among TWT's own mistakes was an equally deter- 'v Piasecki Aircraft Corp v. NLRB, 280 F 2d 575, 591 (1960) 713 mined effort to choose a bargaining agent for its employ- ees and to maintain that bargaining agent in power. As noted before, TWT arranged its hiring pattern to favor the Syph faction. Over the years, it supplied Syph with the patronage to build his political faction. Davis stated categorically that TWT would not have come to Toledo if doing business on that port meant recognizing Local 1982 and bargaining with Charles Moody . TWT en- larged its bargaining unit in 1984 to make sure that the current contract would be ratified by the Syph follow- ers, whom it added to its payroll just before the contract ratification date . To permit TWT to continue to discrimi- nate in this manner, for its own advantage and to the detriment of many Local 1982 members, and then to allow the passage of time to cement in the Syph faction as the dominant faction on the docks, would be nothing less than a reward both for violating the Act and for longterm persistence in doing so . Accordingly, I will recommend to the Board that TWT be required to put an end to its collusive relationship with the ILA and to the Syph faction and to withdraw recognition from the ILA as the bargaining agent for its stevedoring employ- ees, unless and until the ILA becomes certified as the result of a Board-conducted election. In no other way can any semblance of industrial democracy be restored to the Port of Toledo. I will also recommend that the respondents be re- quired to post the usual notices , advising their members and employees of their rights and of the remedy in this case. Because Respondent ILA has no office or hiring hall in the Toledo area, I would direct it to mail a copy of its notice to every living person whose name appears on the Local 1982 seniority list. The General Counsel has requested that the remedy include a so-called visita- torial clause permitting the use of court -supervised dis- covery to determine whether the parties have complied with the terms and conditions of this remedy . Because of the complicated and detailed nature of this case and the obdurate behavior of both respondents , I will recom- mend this remedy to the Board. See NLRB v. Steiner- film, 702 F.2d 14 (1st Cir . 1983). [Recommended Order omitted from publication.] Appendix A Explanation A. Place on old Local 1982 seniority list, as the entry suggests, the order in which the discriminatee's name was found on the seniority list that was used in 1981 by Moody to call off the names of all nonpreferred TWT employees at shapeup. (G.C. Exh. 3.) B. The date of hire noted under the names of the dis- cnminatees was taken from a printout prepared by TWT from its records. (C.P. Exh. 3). C. Summary of anti-Syph or anti-ILA activity is as follows, all in 1982: 1. Indicates that the individual was the signer of a peti- tion submitted to the ILA by Moody about January 22, 1982, in opposition to the effort then underway to char- ter another ILA general cargo local in the Port of Toledo. (G.C. Exh. 105.) 2. Indicates that the individual was a signer of an inter- nal union charge submitted to the ILA alleging that 714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Syph, as ILA dock steward, refused to process griev- ances. (G.C. Exh. 118(b).) 3. Indicates that the individual was a signer of a peti- tion submitted to the ILA alleging that Syph, as dock steward, was derelict in enforcing the hiring provisions in the TWT-ILA contract. (G.C. Exh. 118(c).) 4. Indicates that the individual was a signer of a peti- tion submitted to the ILA allegedly protesting a policy inaugurated by the ILA, at the International level, in re- fusing to load ships to or from the Soviet Union in order to protest the Russian invasion of Afghanistan. 5. Indicates that the individual was the signer of a peti- tion submitted to the ILA alleging that it had failed to collect and remit to TWT employees certain tonnage in- centive and container royalties that were levied under the TWT-ILA contract as part of the compensation of TWT employees. (G.C. Exh. 118(a).) 6. Indicates that the individual was a signer of a peti- tion submitted to the ILA and was refusing to ensure that the elected dispatcher (Edwards) was given recogni- tion by TWT and allowed to function under Local 1982 bylaws. (G.C. Exh. 118(e).) D. The hours of work set forth for each year by each named employee are taken from a list prepared by TWT from its records and submitted by TWT. (R. Exh. 25.) E. The number of hours worked on lines in 1981 and set forth in parentheses 0 after the number of hours worked in 1981 up to November 3, 1981 , is taken from a summary prepared by Edwards , who was lines dispatch- er in 1981. (G.C. Exh. 149.) P - Indicates that the employee in question was on the TWT list of preferred employees for that season. E - Indicates that the employee in question was on the TWT list of experienced employees for that season. An asterisk * after the name indicates that the employee in question had preference among experienced employees in order of call. Q - Indicates that the employee in question was on the TWT's 1984 list of 50 qualified employees who were selected and named in the 1984 con- tract. The notation (added) or (dropped) indicates his status was changed from the preceding list of experienced employees that was utilized during the first 6 weeks of the 1984 season under the old hiring arrangement. The designations P, E, and Q are also used in the summary of activities of Syph supporters found in Appendix B. APPENDIX A Hours Worked Place on old Se- niority List Name Summary of Anti- Syph (or anti-ILA) 1981 (lines) 1982 1983 1984 activity 81 Harkles Bacon, hired 4/20/81 ......................... 1,2,3,4,5,6 272 (20) 117 178 535-Q (Added) 40 Joseph Barteck, hired 4/20/81 ........................ 1,2,3,4,5,6 559 (22) 248-E 500-E 559-Q 89 Elijah Barton, hired 4/20/81 ........................... 1,2,3,4,5,6 95 (24) 2 45 12 55 Paul Ben, hired 4/20/81 .................................. 2,3,4,5,6 374 (55) 208-E 439-E 161-E (Dropped) 37 Matthew Bennett, hired 4/20/81 ..................... 1,2,3,4,5,6 363 (37) 83-E - - 21 Malcolm Bey, hired 4/20/81 ......... ...... .......... 1,2,3,4,5,6 105 (4) - 43 Joseph Boyd, hired 4/20/81 .......................... 1,3,4,5,6 118 (12) - - - 56 Wesley Boyd, hired 4/20/81 .......................... 1,2,3,4,5,6 195 (16) - - 8 116 Robert Bradford, hired 4/20/81 ...................... 3,4,5,6 82 (20) 2 8 19 2 Loms Byrd, hired 4/20/81 ............... .......... 1,2,3,4,5,6 230 (14) 48 146 Nathan Campbell, hired 4/20/81 ....................... 1,3,4,5,6 39 (12) - 151 Lloyd Cathey, hired 4/20/81 ......................... 1 ,3,4,5 68 (16) 19 - - 10 Johnnie Clemons, hired 4/20/81 .... ................. 1,2,3,4,5,6 503 (16) 214-E 485-E 216-E 12 James Cook, hired 11/20/81 ........................... 1,2 ,3,4,5,6 272 (16) 50 M. Csizi, hired 4/20/81 ................................... 1,3,4,5,6 471 (20) -E 131 Edward Dailey, hired 11/19/81 ...................... 1,4,5,6 53 (4) 2 98 James Del Rio, hired 4/20/81 .................... . 1,2,3,4,5,6 223 (20) 6 53 Joseph Duns, hired 4/20/81 ....... ........... ........ 3,4,5,6 197 (20) 11 150 Floyd Early, hired 4/20/81 ............................ 1,3,4,5,6 85 (12) 59 30 82 David Edwards, hired 4/20/81 ........................ 1,2,3,4,5,6 1559-P 301-E• 494-E 800-Q 14 Dan Emery, hired 4/20/85 ............................ 1,2,3,4,5,6 215 (14) - - - 136 Alexander Evans, hired 10/26/81 .................... 1,3,4,5,6 46 (4) 2 - 18 70 Carl Foster, Jr., hired 4/20/81 ....................... 1,3,4,5,6 212 (12) - - - 24 Alvin Freeman, hired 4/20/81 ....... .............. .. 2,3,4,5,6 559 (18) 209-E 211-E 278-Q 17 Tommy Gaines, hired 4/20/81 .................... .. 1,2,3,4,5,6 499 (20) 175-E 12 105 James Gant, hired 4/20/81 ............................... 1,3,4,5,6 68 (22) - 103 Benito Garcia, hired 4/20/81 ......................... . 1,2,3,4,5,6 20 (12) - 15 Herman Glover, hired 4/20/81 ............................ 1,2,3,4,5,6 355 (8) 43-E - 32 Charlie Hampton , hired 4/20/80..................... 2,3,4,5,6 307 (14) 6 28 16 TOLEDO WORLD TERMINALS APPENDIX A-Continued Place on old Se- niority List Name Hours Worked Summary of Anti- Syph (or anti-ILA) 1981 (lines) 1982 1983 1984 activity 715 86 Robert Hicks, hired 4/20/81 ................................ 1,3,4,5,6 79 (4) 39 - - 13 Robert Highsmith, hired 4/20/81 .................. 1 ,2,3,4,5 ,6 672 ( 18) 198-E 28 664-Q (Added) 41 Richard Hollinger, hired 4/20/81 ........................ 1,6 147 (12) 56 88 137 45 Gerald Holman, hired 4/20/81 ........................... 1,3,4,5,6 36 (20) - - - 80 Cecil Hood , hired 4/20/81 ............................ 1,2 ,3,4,5,6 260 (24) 93 85 293 19 Gaylon Howard , hired 4/20/81 ..................... 1,2,3,4,5,6 483 (4) 200-E 376-E - 1 Leroy Hunter, hired 4/20/81 ............................ 1 16 (0) - - - 115 Willie Jackson, on roll..................................... 1,2,3,4,5,6 49 (20) 19 8 12 127 Acy Johnson, Sr., on roll .............................. 1,3,4,5,6 18 ( 12) - - - 120 Melvin Jones, hired 5/5/81 ............................... 1,3,4,5,6 28 (0) - - - 114 Robert Kirkwood, on roll .................................... 1,3,4,5,6 50 (20) 17 - - 87 Nathaniel Levesque , hired 4/20/81 ................. 2,3,4,5,6 301 (20) 104 50 26 4 William McCully, on roll.................................... 1,2,3,4,5,6 458 (Refused) 168-E - 220-Q (Added) 111 Richard McGoffney , hired 4/20/81 .................... 1,2,3,4,5,6 20 ( 16) 7 10 - 42 Gerald Markowski, hired 4/20/81 .................... 1,2,3,4,5,6 300 (16) - - - 1l Shirley Marsenburg, hired 4/20/81 ................... 1,2,3,4,5,6 1254 ( 14)-P 243-E* 307-E 492-Q (Added) 48 Raymond Merrill, hired 4/20/81 ......................... 1,3,4,5,6 381 (10) 225-E 426-E 247-E (Dropped) 94 Charles C. Moody, hired 4/20/81 ........................ 1,2,3,4,5,6 1578 (20)-P 725-P 1284-P 1811-P 88 Franklin Moody , hired 4/20/81 ....................... 1,2 ,3,4,5,6 221 (20) 6 - - 34 Robert L. Moody , Jr., hired 4/20/81 ............. 1,2,3,4,5,6 636 (26) 233 381 - 112 Gregory Mroczkowski, hired 4/20/81 .... ........ 6 9 (4) 2 2 - 49 Harry Nolan, hired 4/20/81 ... .... ........... 1,3,4,5,6 362 (16) -E - - 75 John Nyers, hired 4/20/81 ........................... 1 ,2,3,4,5,6 283 (16) - - - 7 Warren Orth, hired 7/2/81 ............................ 1,2,3,4,5,6 244 (22) - - - 134 Gerald Reynolds, hired 4/20/81 ..................... 1,2,3,4,5,6 42 - - - 119 Willie Sanders, hired 4/20/81 ............. ..... 1,3,4,5,6 31 (6) - 8 42 8 Milton Shoecraft, on roll .................... ......... 1,2,3,4,5,6 490 (14) 195-E 69 12 47 Sam Smithson, hired 7/6/81 ............. .......... 1,3,4, 5,6 176 (6) 8 - - 35 Willie Spivey, hired 4/20/81 ...... ............... 1,2,3,4,5,6 420 ( 18) 235-E 401-E 608-E 79 Richard Staunton , hired 4/20/81 . ................. 1,2,3,4,5 ,6 294 (22) 21 40 4 83 Claude Tucker, Sr., on roll ............ ............ 1,2,3,4,5,6 311 (20) 95 108 552 142 Jonas Tucker, hired 5/7/81 ...................... . 1,2,3,4,5 8 - - - 54 Ronald Van Buren , hired 4/20/81 ................. 1,2,3,4,5,6 175 (10) 6 8 - 135 G Washington, on roll .............. .............. 1,6 14 (8) - - - APPENDIX B.-SUMMARY OF HOURS WORKED 1981, 1982, 1983 and 1984 CALENDAR YEARS Name Position on Local 1982 Seniority List 1981 1982 1983 1984 David Antonnacci, Sr. NOL 442 304 664 665 Rudy Apodaca 85 210 195 308 46 Jack Beese 73 340 173 417 565 John R Bennett 44 510 285-E 641-E 1715-P Joseph A Bollman' 67 1452-P 1921-P 1923-P 2160-P Robert W Burkhard* 6 1248-P 1799-P 2222-P 1899-P Donald Chevalier NOL - - 174 371 Harold Chevalier* 66 962-P 1771-P 1752-P 2196-P Joseph E Cutcher* 5 1346-P 1686-P 1348-P 1825-P Randy Dazell NOL - - 219 281 Charles P Erickson* 60 1530-P 1823-P 1755-P 2208-P Lloyd Hansen * 31 570 301-E 688-E 992-Q Archie Haynes * NOL 38 19 192 166 Francis L Knstof* 69 1372-P 1321-P 1554-P 1885-P Phillip Knstof NOL - - - 52 716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX B.-SUMMARY OF HOURS WORKED 1981, 1982, 1983 and 1984 CALENDAR YEARS-Continued Name Position on Local 1982 1981 1982 1983 1984 Seniority List Edward Lawler* 178 269 236-E 549-E 699-Q James S. Loveless* 74 1187-P 607-P 1072-P 8-P Keene Ludlow* 29 1532-P 1891-P 2239-P (Disabled) 2268-P Dennis J. McVicker* 46 164 100 150 473-Q Telesforo M. Ohverez* 90 234 208 717-E 885-Q Zelmer L. Owens 61 426 303-E 614-E 747-Q Julio Ramirez* 52 260 306 505-E 176-Q Alfonso Rizo* 106 190 257-E 762-E 929-Q Juan Rizo * 99 1275-P 1065-P 1465-P 1845-P Miguel S. Rizo* 100 208 256-E 758-E 862-Q Joseph M. Rucki* 9 1511-P 2035-P 2201-P 2187-P Walter Sampsel* 20 358 918 1331-P 1738-P Oree Sanders* 109 96 18 4 24 Domingo Serna* 18 469 205-E 538-E 849-Q Charles R. Spencer* 101 114 284 720 885-Q Mearl Sutton, Sr.* 27 489 286-E 552-E 817-Q Charles J. Syph 125 - - 352 300 Cleo Syph* 16 741-P 2914-P 3064-P 3338-P Fred Syph* 95 40 194 525 659-Q Theodore Syph* 102 137 300-E 643-E 670-Q Donald E. Tefft* 108 163 300 731-E 834-Q Salome Torres* 71 296 117 103 615-Q James Turner* 22 1333 1126-P 1586-P 1813-P Mark Turner* NOL - 40 353 552-Q Sherrond Turner* 118 - 78 306 670-Q Alton Victonan* 107 215 193 446 535-Q Joseph L. Victonan* 92 225 872-P 1326-P 2176-P Ledray Victorian' 36 1529-P 1946-P 2299-P 2421-P Robert White NOL 469 322-E 711-E 924-Q * Signed Syph's December 29, 1981, application to ILA to charter a new general cargo local in the Port of Toledo. NOL-Not on Local 1982 Seniority List. APPENDIX C.-PREFERRED LIST Years Name Faction 1981 1982 1983 1984 John R. Bennett, Jr (Syph) N/A N/A N/A X Joseph A. Bollman, Jr (Syph) X X X X Robert W. Burkhard (Syph) X X X X Harold L. Chevalier (Syph) X X X X Joseph E. Cutcher (Syph) X X X X David Ray Edwards (Moody) X N/A N/A N/A Charles D. Enchson (Syph) X X X X Francis L. Kristof (Syph) X X X X James Loveless (Syph) X X X X* Keene T. Ludlow (Syph) X X X X Shirley Marsenburg (Moody) X N/A N/A N/A Charles C. Moody (Moody) X X X X Juan Rizo (Syph) X X X X Joseph M. Rucki (Syph) X X X X Walter E. Sampsel (Syph) N/A X X X Cleo Syph (Syph) X X X X James Turner (Syph) X X X X TOLEDO WORLD TERMINALS 717 APPENDIX C.-PREFERRED LIST-Continued Name Faction Years 1981 1982 1983 1984 Joseph L. Victorian (Syph) N/A X X X Ledray Victorian (Syph) X X X X Total 16 16 16 17 At the beginning of 1982, J. Victorian and W. Sampsel were added to the list. At the beginning of 1984, J. Bennett was added to replace J. Loveless, who was classified by TWT as permanently disabled during 1984.** * Indicates insufficient hours. ** Any notation here or on Appendices B and D that an individual was "disabled " or "retired" is a contention on the part of Respondent TWT rather than a determination by the undersigned , who regards such questions as best left to a supplementary proceeding. APPENDIX D.- "EXPERIENCED" AND QUALIFIED EMPLOYEES 1984 X 1981 1982 1983 April-May May-Dec. Preferred List-Schedule A 16 16 16 17 17 Name Faction Note 1 Note 2 Note 3 Note 4 Note 5 David Antonnacci (Syph) X X X X Joseph F Barteck, Jr (Moody) X X X X Paul Ben (Moody) X X X ** John R. Bennett, Jr (Syph) X X To Preferred Preferred Matthew Bennett (Moody) X Disabled Disabled Disabled Gerald Berg ? X X X X Johnnie Clemons (Moody) X X X X M. Csizi (Moody) X Retired Retired Retired David R. Edwards (Moody) X X X X Alvin R. Freeman (Moody) X X X X Tommy Gaines (Moody) X * * ** Herman Glover (Moody) X * * ** Lloyd R Hansen (Syph) X X X X Robert L. Highsmith (Moody) X * * X Gaylon Howard (Moody) X X * ** Shirley M Marsenburg (Moody) X X * X William S McCully (Moody) X * * X Raymond Merrill (Moody) X X X ** Robert L Moody (Moody) X X * ** Harry Nolan (Moody) X Retired Retired Retired Zelmer L. Owens (Syph) X X X X Domingo S Serna (Syph) X X X X Milton Shoecraft (Moody) X * * ** Willie M Spivey (Moody) X X X X Mearl E Sutton, Jr (Syph) X X X X Robert G. White (Syph) X X X X Total 26 Edward Lawler (Syph) X X X Telesforo Oliverez (Syph) X X X Julio C Ramirez (Syph) X X X Alfonso S. Rizo (Syph) X X X Miguel S Rizo (Syph) X X X Charles R. Spencer (Syph) X X X Theodore R Syph (Syph) X X X Donald E Tefft (Syph) X X X Total 26 718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX D.- "EXPERIENCED" AND QUALIFIED EMPLOYEES-Continued X 1981 1982 1983 Jack L. Beese (Syph) Fred Syph (Syph) Alton B. Victorian (Syph) 1984 April-May May-Dec. X X X X X X Total 25 Preferred List-Schedule A 16 16 16 17 17 Name Faction Note 1 Note 2 Note 3 Note 4 Note 5 Harkles Bacon (Moody) X Cecil Hood (Moody) X Dennis J. McVicker (Syph) X Salome Torres (Syph) X Claude R. Tucker, Sr (Moody) X Mark A. Turner (Moody) X Sherrond J. Turner (Moody) X Total 42 42 42 50 Note 1-First year of operation. No special list of employees utilized other than "preferred" men. 2-Individuals who qualified as "experienced employees" in 1982 (350 hours or more in 1981). 3-Individuals who qualified as "experienced employees" in 1983 (200 hours or more in 1982). 4-Individuals who qualified as "experienced employees" in 1984 (400 hours or more in 1983). 5-Individuals who became "qualified" employees under the 1984 contract. • Indicates insufficient hours. •• Indicates individual did not qualify among top 50 under the May, 1984, TWT rating.