International Longshoremen'S Association, Local 1426 (Wilmington Shipping Co.)

1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Longshoremen's Association, Local 1426 (Wilmington Shipping Company) and David Robinson and Sunday Briggs, Jr. and Winfred D. Clemmons and Robert O. Willis. Cases 11-CB-1520, 11-CB-1530, 11-CB-1532, 11-CB-1567, and 11-CB-1563 June 14, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 6, 1987, Administrative Law Judge Hutton S. Brandon issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an ex- ception to the judge's "Correction."" 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 brief and has decided to affirm the judge's rulings, fmdings,2 and conclusions and to adopt the recommended Order as modified. With respect . to the remedy in this case, the judge concluded that a backpay remedy for the Respondent's unlawful selection of individuals for permanent gang positions would be inappropriate. In so doing, he relied, inter alia, on the General Counsel's failure to name any discriminatees in the complaint and the lack of evidence in the record pertaining to which individuals would have been selected for the permanent gang positions instead of those unlawfully selected. We disagree with the judge's conclusion in this regard. The Board was faced with a similar remedial problem in Iron Workers Local 433 (AGC of Cali- fornia), 228 NLRB 1420 (1977), enfd. 600 F.2d 770 (9th Cir. 1979). In that case, the General Counsel had established that 76 individuals 'had been dis- patched by the respondent union in violation of the contractual hiring hall procedures. The 76 discri- minatees who would have been dispatched but for the unlawful conduct were not named or identified. Although the Board acknowledged that some cases may present the potential for open-ended litigation concerning the existence of possible. discriminatees, ' On November 25, 1988, the judge issued a "Correction " with respect to certain typographical errors, including an inadvertent omission, in his decision. ' The Respondent has implicitly excepted to some of the judge's credi- bility findings. The Board's established policy is not to overrule an ad- ministrative law judge's credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. the Board noted that the potential was limited in the case before it as the inquiry was limited to 76 specific instances in which named employees were dispatched. Accordingly, the Board afforded the General Counsel the opportunity to establish in a backpay proceeding which individuals would have been dispatched absent the unlawful conduct. In the instant case, the violation to-be remedied consists of the selection of four persons, Freeman, Brown, Sloan, and Stidham, to be permanent gang members on the basis of inappropriate criteria. Hence, as in Iron Workers Local 433, the inquiry necessary to identify the discriminatees is a limited one.9 Accordingly, consistent with that case, we will permit the General Counsel to attempt to prove in a backpay proceeding which individuals would have been selected as permanent gang mem- bers had appropriate selection criteria been uti- lized.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, International Longshoremen's Associa- tion, Local 1426, Wilmington, North Carolina, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 2(b), reletter the subsequent paragraphs, and renumber the fol- lowing footnote. "(b) Make whole, with interest, 24 any qualified employee applicants and users of the exclusive hiring hall system denied employment opportunities by the application of unfair, arbitrary, and invidi- ous considerations in the selection of Freeman, Brown, Sloan, and Stidham for permanent gang as- signments by header Davis on August 6, 1986, for any loss of earnings and benefits they May have suffered as a result of the Respondent's unlawful conduct. "84 In accordance with our. decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977)." ' We do not mean to imply that a finite number of potential discrimina- tees is necessarily a prerequisite to leaving the identification of discrimm- atees to the compliance stage of the proceeding, nor need we decide what the result would be here were the inquiry less limited than it is. 4 We note, as the Board did in Iron Workers Local 433 at 1441, that the General Counsel's task in the backpay proceeding is a difficult one. See also Teamsters Local 328 (Blount Bros), 283 NLRB 779 at fn. 2 (1987). 294 NLRB No. 92 LONGSHOREMEN ILA LOCAL 1426 (WILMINGTON SHIPPING) 2. Substitute the attached notice for that of the administrative law judge. APPENDIX 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 threaten employee-members that their opposition to union leadership in the oper- ation of our exclusive hiring hall system will meet with diminished opportunity for header positions or with other unspecified reprisals. WE WILL NOT breach our duty of fair represen- tation or discriminate against individuals within the same seniority classification under the collective- bargaining agreement and seniority plan by choos- ing individuals for permanent gang assignments based on arbitrary, unfair, or invidious consider- ations. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL select employee applicants for perma- nent gang assignments on the basis of fair and ob- jective criteria consistent with the collective-bar- gaining agreement and seniority plan in effect with Wilmington Shipping Company and North Caroli- na Shipping Association. WE WILL make whole, with interest, any quali- fied employee applicants and users of the exclusive hiring hall system denied employment opportunities by header Davis' use of unfair, arbitrary, and invid- ious considerations in the selection of Freeman, Brown, Sloan, and Stidham for permanent gang as- signments, for any loss of earnings and benefits they may have suffered as a result of our unlawful conduct. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1426 Paris Favors Jr., Esq., for the General Counsel. A. A. Canoutas, Esq., of Wilmington, North Carolina, for the Respondent. DECISION STATEMENT OF THE CASE HuTTON S. BRANDON, Administrative Law Judge. These cases were tried at Wilmington, North Carolina, on 28-29 July 1987. The charge in Case 11-CB-1520 was filed on 27 January 1987, amended 27 February, by 1153 David Robinson, an individual (Robinson). The charge in Case 11-CB-1530 was filed on 2 March 1987 by Sunday Briggs, Jr., an individual (Briggs). The charges in Cases 11-CB-1532 and 11-CB-1567 were filed on 10 March and 26 June 1987, respectively, by Winfred D. Clem- mons, an individual (Clemmons), while the charge in Case 11-CB-1563 was filed by Robert O. Willis, an indi- vidual (Willis), on 5 June 1987. A complaint on the ini- tial charge issued on 13 March 1987 and subsequent orders consolidating cases and consolidated complaints incorporating allegations of the subsequently filed charges issued on 30 April, 29 May, and 10 and 14 July 1987. The primary issues presented by these cases are whether International Longshoremen's Association, Local 1426 (Respondent or the Union) violated Section 8(b)(1)(A) of the National Labor Relations Act (the Act) by (a) threatening employee-members that their opposi- tion to the manner in which Respondent was operating its hiring hall would be futile and would result in unspec- ified reprisals, (b) threatening to deny employee-members the position of "header" if they opposed the manner in which Respondent operated its hiring hall, (c) refusing to allow employee-members to participate fully and freely in union meetings and affairs, (d) denying voting privi- leges to an employee-member in a union meeting because the employee-member participated in criticism of union officials, and (e) refusing and failing to represent employ- ees for unfair, arbitrary, and invidious reasons in breach of its fiduciary duty. The consolidated complaint also presents issues regarding whether Respondent violated Section 8(b)(1)(A) and (2) of the Act in causing employ- ee-members of North Carolina Shipping Association (the Association) including Wilmington Shipping Company (the Company) to discriminate against certain employees by (a) failing and refusing in connection with the oper- ation of an exclusive hiring hall to establish objective standards for the selection of individuals for permanent assignment to work gangs and instead establishing, imple- menting, and maintaining an arbitrary and discriminatory selection system for such assignments, and (b) failing and refusing to establish and maintain objective standards for the referral of casual employees to employer-members of the Association and the Company. On the entire record,' including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION The complaint alleges, and Respondent admits, that the Company is a North Carolina corporation with a fa- cility located at Wilmington, North Carolina, where it is engaged-in oceanic shipping. Based on the credible and i The record contains a substantial number of errors including mis- spelled words However, neither party filed a motion to correct the record Accordingly, because I find no significant omissions in the record and because the errors that exist are generally apparent to the reader and have no material impact on the meaning of the remarks reported, I will not sua sponte correct the record 1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD uncontradicted testimony of William White, an employee of the Company's Marine Operation Section, the Compa- ny during the 12-month period prior to the hearing re- ceived in excess of $50,000 for services rendered directly to customers located outside the State of North Carolina. The complaint alleges, and I find, that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint also alleges, Respondent's answer admits, and I find that Re- spondent is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES 'A. Introduction The Association is a multiemployer bargaining group representing its members, including the Company, in ne- gotiations and contract administration with various unions including Respondent. The bargaining unit for the employees represented by the Union is admitted by the parties herein to be: All employees engaged in the loading or unloading of ships at the Employer's location at the Port of Wilmington, North Carolina, excluding all other employees, guards and supervisors as defined in the Act The Association' and the Union were parties to a bar- gaining agreement covering, inter alia, the Company's unit employees effective from 30 September 1983 until midnight 30 September 1986. This agreement was suc- ceeded by another one effective through 30 September 1989. No claim is made by any party that the new agree- ment resulted in any change material to the case sub judice. Although not specifically provided for in the collec- tive-bargaining agreement, the Association and Respond- ent have an understanding or practice under which Re- spondent is the sole source of referrals for employment with members of the Association, including the Compa- ny, in the unit described above. Respondent's president, Willie Sloan, admits to this understanding and practice. Employees are referred for employment through "gangs," on a rotating basis The gangs are made up of a number of permanently assigned employees with a per- manent "header" or foreman. If there are not enough men in a gang to supply the requesting employer's needs, additional men are selected for the gangs by the header with selection preference accorded on the basis of a somewhat complex seniority classification system agreed to by the Association and the Union in October 1981 (the seniority plan) as set forth below: Class A:' Class A seniority shall be enjoyed by those men who'were employed at any time as long- shoremen during the base period October 1, 1957 to September 30, 1952, and who have maintained con- tinuous services,at such occupation since October 1, 1962. Class B: Class B seniority shall be enjoyed by those men who were employed as longshoremen 600 hours or more for any 2 contract years during the period October 1, 1962 to September 30, 1966 and who have maintained continuous service at such occupation since October 1, 1966. Class C: Class C seniority shall be enjoyed by those men who were employed as longshoremen 600 hours or more during the contract year October 1, 1966 to September 30, 1967 and who maintained continuous service at such occupation since that time. Class D: Class D seniority shall be enjoyed by those men who were employed as longshoremen 600 hours or more during the contract year October 1, 1967 to September 30, 1975 and who maintained continuous service at such occupation since that time. Class E: Class E seniority shall be enjoyed by those men who were employed as longshoremen 300 hours or more during the contract year October 1, 1980 to September 30, 1981. Casual. Casual seniority shall be enjoyed by those men who do not fall within Class A, B, C, D, or E, and who work or made themselves available for work as longshoremen on and after October 1, 1968. Each 5 years from the effective date of this plan, each classification with Class B, C, D, and etc. who have maintained continuous service shall be elevat- ed one classification level.2 The classification system also provided that members of Classes A, B, C, and D must continue to maintain 700 hours or more of service as longshoremen during future contract years to maintain their seniority while Class E members were required to maintain 500 hours or more of service during future contract years to maintain seniori- ty. The classification system was revised effective 31 Oc- tober 1986 to provide for certain new classifications. The old classification A became classification AA while the old B classification became the new A classification. The other classifications were changed by changing the quali- fication period provided in each classification . The new E classification was defined as follows: Class E seniority shall be enjoyed by those men who do not fall within Classes AA, A, B, C, and D and who work or make themselves available for work as longshoremen on or after October 1, 1968 through September 30, 1985. Under the new classification system , anyone working subsequent to 30 September 1985 who did not fall within any of the other categories were to be considered as "casuals." In practice, employee-applicants meet each morning at the union hall for a work "shape up." Headers, after re- ceiving dispatch information from the union business 2 "Continuous service" was defined as meaning a man must have worked a minimum of 400 hours as a longshoreman each successive con- tract year from the base period through September 30, 1962, and 600 hours each successive contract year beginning October 1, 1962, through September 30, 1981 LONGSHOREMEN ILA LOCAL 1426 (WILMINGTON SHIPPING) agent, proceed to gather their gangs for work selecting first their regular gang members in order of their seniori- ty classifications , assuming they are qualified to fill the positions requested by the employers . In the event the regular gang members are insufficient in number to fill the dispatch order or if some are not qualified for the work, the header proceeds to hire outside the regular gang those persons at the union hall seeking employment but still making his selection upon the basis of the senior- ity classifications , i.e., selecting from the A classifications first and then the lower classifications in order . Howev- er, the header appears to be free under the system to ex- ercise purely subjective considerations in choosing be- tween individuals within the same seniority classification. Following exhaustion of the selections from classifica- tions A through E without filling the number of employ- ees required by the employer, the header then completes his selection from among individuals classified as casuals. All individuals seeking referral are given a classification card indicating this classification . The card is shown to the header to prove one's classification , but generally the header is personally aware of the classifications of most of those seeking referrals. The employer-union seniority plan provides that man- agement shall select the headers after considering recom- mendations of the Union The plan provides , however, that headers are responsible to the employers for select- ing and working all of their men in the proper catego- ries The plan further points out that it is essential that all headers pay strict attention to choosing men in the proper categories in filling out their gangs . It further provides that headers are required to replace men within gangs when vacancies occur with those men in senior categories providing they are qualified , giving first con- sideration to regular gang men promoting them to key vacant positions if they are qualified Replacements are required to be picked from the seniority list in classifica- tion order when possible and provided men in those groups are available and qualified . A seniority board is provided for in the plan made up of members of both management and the Union and it is the function of the board to, inter alia, consider disputes regarding deliber- ate violations of the hiring rules by a header. As a practical matter, because of automation and a general lack of work among longshoremen in the Wil- mington area in recent years, it has not been necessary to resort to casuals for referrals, and selections from that classification have therefore been rare insofar as this record shows. Selection of casuals , it appears, is based on the discretion of headers making the selection from those casuals present at the shapeup on any given day when the choices from the higher classifications had been ex- hausted. B. The Alleged Violations of Section 8(b)(1)(A) and (2) 1. The increase in the size of gangs Based on the testimony of Willie Sloan, president of Respondent, Respondent historically had maintained 20 work gangs in Wilmington and 3 carpenter gangs, the latter being used to shore up cargoes . At some point in 1155 time, however, according to Sloan, management and Re- spondent agreed to cut the number of regular gangs to 15 because of a lack of work in the area. The number of carpenter gangs remained at three. Each regular gang was entitled to have permanently assigned members. However, some gangs did not have all their permanent gang member positions filled In the summer of 19863 Sloan decided to attempt to increase the allotted number of individuals in each gang from 10 to 14. Based on Sloan's testimony , increasing the size of the gangs increased the likelihood that those per- sons selected for permanent assignment to the gangs would receive more work . It is evident, theoretically at least, that while such selections would not change the volume of work available or assure employment , the se- lections would at least reduce or obviate to a degree the competition for work the individuals selected would oth- erwise have to undergo if not permanent gang members. To increase the size of the gangs Sloan found it neces- sary to obtain the permission of the Association and the trustees of the South Atlantic International Longshore- men's Association/Employer's Guaranteed Annual Income Fund,4 because of a perception that an increase in the number of permanent positions in gangs might ad- versely impact on the fund's liability . Sloan apparently cut his request from 14 to 12 persons per gang. Permis- sion was granted at a meeting of the fund 's trustees on 28 July. Sloan thereafter set about increasing the size of the gangs by ascertaining those union -members who were el- igible for gang assignments. A list of 47 persons was made up and posted at the union hall. The list, dated 5 August 1986, was captioned "Eligibility List For Gang Assignment." Another list was also composed of 23 names of persons who paid their dues up to the date of 6 August, and, as Sloan testified, were eligible for perma- nent assignment 5 Sloan also called a membership meeting for 6 August by posting a notice in the union hall around 5 August Just prior to the general meeting, Sloan testified he met with the gang headers, told them of the increase in the number of the permanent assignment to gangs, and gave them the list of persons eligible for selection to the gangs. There was opposition voiced by the headers of the 3 carpenter gangs who complained there was not enough work to increase their gangs to 12 each On hearing their complaints, Sloan agreed and the size of their gangs was left at 10. Nevertheless, the carpenter gangs still had vacanies which they proceeded to fill by selecting men from the list provided by Sloan The regu- lar gang headers also proceeded to select permanent gang members at the meeting. Sloan testified that all of the persons listed as eligible for permanent gang assignments were within the same 3 All dates hereafter are in 1986 unless otherwise stated 4 The Guaranteed Annual Income Fund (GAI) was established to insure an annual income to certain qualified longshoremen whose jobs were affected by automation The fund is called on to supplement the income of those qualified if work is not available for them Longshore- men who qualified for GAI also were given a preference in job referrals by virtue of their qualification in the higher seniority classifications Ten of the twenty-three names on this list which was not posted had also appeared on the 5 August list 1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD seniority classification,6 and he gave no instructions to the headers regarding selections they were to make. Carpenter gang header Eugene Davis testified for the General Counsel that he made six selections for perma- nent assignment to his gang on 6 August. Some of his se- lections were based on his knowledge of work ability of the individuals selected, some on the recommendations of other headers or subheaders, and four? on nothing more than the request of a relative of the individual selected. Because of some confusion due to at least one individual opting to go into a different gang after already selected by Davis, and to the failure to list one of Davis' regular gang members, Davis overfilled his gang vacancies by one but was allowed by Sloan to retain all his selections. a. Arguments of the parties The General Counsel in this case has not generally at- tacked the Union's referral or dispatch system as it is outlined above. Nor was the system itself attacked by the General Counsel in earlier litigation involving this Re- spondent. See Longshoremen ILA Local 1426 (Waterfront Services), 283 NLRB 1042 (1987). What is alleged as dis- criminatory and unlawful is the method of selection of employee-member applicants for permanent assignment to gangs. Starting from the proposition that a union in the operation of an exclusive hiring hall has the duty and responsibility of administering the hall in a fair and equi- table manner, the General Counsel proceeds to the prop- osition that discrimination against employees in the oper- ation of an exclusive hiring hall for arbitrary and capri- cious reasons violates the Act regardless of whether the discrimination is predicated upon union membership or lack thereof In support of this position, the General Counsel cites NLRB v. Teamsters Local 5, 778 F.2d 207, 213 (5th Cir 1985), enfg. 272 NLRB 1375 (1984), and Teamsters Local 174 (Totem Beverages), 226 NLRB 690 (1976). Arguing further, the General Counsel contends that the permanent assignment of men to gangs (which the General Counsel equated to referrals) without refer- ence to objective criteria,or standards violated Section 8(b)(1)(A) and (2) of the Act because it affected employ- ment and inherently encouraged union membership. While conceding that all of the individuals subject to se- lection for permanent gang assignment on 6 August be- longed to the same seniority classification, the General Counsel claimed the ultimate selection for permanent gang assignment was based on the header's sole preroga- tive without the benefit of any objective criteria to be utilized in making the selection In this regard, the Gen- eral Counsel points to the uncontradicted testimony of header Davis to the effect that he selected four people for his gang based simply on the recommendation or re- 6 Sloan referred to this classification as the "F" classification and ex- plained that the employers and Respondent had agreed to this classifica- tion sometime around 1983 The "F" classification and its standards were never set forth in the record According to Sloan, the "F" classification was eliminated in the October revision of the seniority plan by the par- ties These individuals were William D Freeman, Roderick (or Robert as the record in other places suggest) Brown, Howard Sloan, and Carl Stid- ham Jr It is not clear from the record, however, that Freeman's selection was effectuated and that he was actually placed on Davis' team quests of their relatives. The selection was therefore arbi- trary, invidious, and irrelevant to legitimate union inter- ests and adversely impacted on the employment pros- pects of those not selected. Respondent's position essentially is that the hiring system had been agreed to by the Union and the Asso- ciation under the seniority plan, and the selection of men for gangs was made by the headers as it always had been consistent with the seniority plan. The headers, Respond- ent's brief asserts, are the employers' agents, not the Union's, in the selection process. b. Analysis and conclusions It is well established that a labor organization violates both Section 8(b)(1)(A) and (2) of the Act where it re- fuses to refer an individual to work under an exclusive referral system for discriminatory reasons See, e.g., La- borers Local 135 (Bechtel Corp.), 271 NLRB 777, 780 (1984); Plumbers Local 17 (FSM Mechanical), 224 NLRB 1262 (1976); Electrical Workers IBEW Local 675 (S & M Electric), 223 NLRB 1499 (1976). Violations of the Act in connection with the operation ,of an exclusive hiring hall are not limited to those situations where discrimina- tion is found flowing from union membership or lack thereof. It has been held that discrimination in job refer- rals based on race, sex, and nepotism also violates Sec- tion 8(b)(1)(A) and (2). See NLRB v. Teamsters Local 5, supra at 213 This is because discrimination for such rea- sons is considered arbitrary, invidious, and in breach of the Union's duty of fair representation outlined in Vaca v. Sipes, 386 U S. 171 (1967). Thus, unions in the operation of exclusive hiring halls must give due regard to the fair and equal treatment of referral applicants. Arbitrary or invidious treatment of such applicants will be presumed to encourage union membership in violation of the Act. See Carpenters Local 25 (Macon Corp.), 270 NLRB 623 (1984), enfd. 769 F.2d 574 (9th Cir. 1985). See also Mill- wrights Local 2834 (Atlantic Maintenance), 268 NLRB 150 (1983). In considering whether an exclusive hiring hall is op- erated in an arbitrary manner, the absence of written rules, although not alone determinative, is evidence of the unfairness of the system. Stage Employees IATSE Local 592 (Saratoga Arts), 266 NLRB 703 (1983) But the absence of any standards, written or otherwise, normally will result in a violation of Section 8(b)(1)(A) and (2) of the Act for it establishes a breach of the Union's duty of fair representation which causes an employer to discrimi- nate against referral applicants. NLRB v. Teamsters Local 5, supra. On the other hand, an employer is not burdened with a "duty of fair representation" in the hiring process and may act arbitrarily in selecting individuals for hire so long as the selection criteria are not proscribed by Sec- tion 8(a)(3) and (1) of the Act, or some other statute, or a collective-bargaining provision. Thus, it has been said insofar as the Act is concerned, an employer may dis- charge or refuse to hire an employee for a good reason, a bad reason, or no reason at all so long as the reason does not relate to union or protected activity. Stage Em- ployees IATSE Local 592, supra. LONGSHOREMEN ILA LOCAL 1426 (WILMINGTON SHIPPING) With this distinction in the respective statutory obliga- tions on the Union and the Association as employer in the instant case, the agency status of the header becomes critical . If a header is the employer 's hiring agent, he may be arbitrary in the selection process as long as union membership considerations or protected activities are not selection factors. Both sides herein were requested to treat the issue of the header's agency status in their briefs and neither did so. The General Counsel's brief merely asserts that the headers are appointed by the Union. That is only half true. The Union -Association seniority plan specifically provided that management select headers after "considering recommendations of the Union." And while there was no testimony that the employers had ever rejected the Union's recommendations for headers, neither the collective-bargaining agreement nor the se- niority plan compelled acceptance of the Union 's recom- mendation . The seniority plan further provided that the headers were "responsible to the employers for selecting and working men in the proper categories." Based on the testimony of E B . Davis, headers pos- sessed not only the authority to hire employees within the guidelines of the seniority system and referral plan and subject to review of the seniority board made up of union and management representatives , but also had the authority to' 'fire employees. Thus, headers who were members of the Union were also supervisors within the meaning of Section 2(11) of the Act. But because the header was a union member and essentially achieved his position by virtue of the Union's recommendation, the header obviously had mixed loyalties which gave the Union potential influence in the header employee selec- tions beyond the guidelines imposed by the seniority plan in the collective-bargaining agreement.8 Union control of hiring and consequently responsibility therefor under the Act was found by the Board in an almost identical hiring system using headers in Longshoremen ILA Local 1480 (Jacksonville Maritime), 258 NLRB 132 (1981). In an- other case involving a longshoremen hiring hall, gang foremen or "bolsters" similar to the headers in the in- stant case were found to be agents of both the employer and the union in the hiring process. Master Stevedores Assn. of Texas, 156 NLRB 1032 (1966). See also Stage Employees IA TSE Local 592, supra, where dual agency was found in a hiring process when the employer repre- sentative was also the union 's business agent. I find the headers in the instant case to likewise occupy a dual agency status in the hiring system here involved As dual agents, the headers were bound by the Union's obligation under the Act not to base selection in the hiring process on its selection for permanent gang assignment (which affected employment) on unfair, arbitrary, or invidious considerations. However, as employer representatives, headers could exercise those lawful prerogatives pos- sessed by an employer so long as the seniority classifica- tion system was adhered to .9 Thus, the headers' knowl- e This potential, perhaps even actual control, is evident by Sloan's tes- timonial boast herein that "you can't get a job or can't get position unless it comes from the crow's nest " 0 Under the collective-bargaining agreement, "the right to hire and discharge" was specifically reserved to the employers Though not in- volved in the instant case employer discretion, where specifically pre- 1157 edge of an individual's seniority, qualifications, ability, availability, and desire for work constitute objective standards which could be relied on in making selections on employees' behalf for permanent gang assignment. See Stage Employees IATSE Local 592, supra at 710. Indeed, the seniority plan here provides that in choosing gang replacements as well as selections for referral, se- niority is subservient to qualification for the position filled. That all of the aforementioned criteria are not written down or published is not of great consequence, for when exercised on behalf of the employer, they are "conventional standards which are commonly utilized for hiring." Id. at 710 Thus, to the extent any header relied on these criteria in making permanent gang selec- tions, the selections were clearly lawful as long as the se- niority classification system was followed 10 Reliance on such criteria in exercising discretion for selections within classifications also may not be .regarded as unlawful even where the criteria are not specifically spelled out. Considering the foregoing, the dual agency status of the headers, the discretion of headers as employer repre- sentatives to exercise some discretion within classifica- tions, and the fact that the selection for permanent gang assignments were made pursuant to the same written and objective system of procedures by which selections for employment were made in the hiring or shapeup process, which the General Counsel has not attacked, I find the evidence insufficient to establish the complaint allegation that Respondent failed to establish objective standards for the selection of individuals for permanent gang as- signment . Rather, the evidence shows the selections for permanent gang assignments were all made from the same "F" classification, i i and were therefore not incon- served, may extend to the selection of employees for referral by name notwithstanding their ranking in an exclusive referral procedure The pre- sevation of such discretion is neither unusual nor unlawful See, e g , Iron Workers Local 483 (Building Contractors), 285 NLRB 123 (1987) 10 The argument that the General Counsel makes here that the Union's selections for gang assignments were arbitrary, discriminatory, and un- lawful in the absence of the establishment of specific objective standards for selection would logically extend to the hiring or referral system itself, since the headers had similar discretion in the selection of the employee- applicants within the same classification in making their selections during shapeups Yet, there was no evidence of any specific wrongful exercise of that discretion in the shapeups, however, and the complaint did not allege that the hiring system was unlawful itself Further, the General Counsel's brief does not generally attack the hiring rules, the classifica- tions, or the process of making selections within classifications in the hiring system Accordingly, no conclusions are made here with respect to the legality of the hiring system or the exercise of discretion by the head- ers in selecting employees for hire within the same classification 11 There is a suggestion in the testimony of Sloan that union member- ship was an element of eligibility for inclusion in the "F" classification and thus permanent gang assignment If this were so, the classification and selections were clearly discriminatory and unlawful because they were based upon union membership considerations However, as noted above, the standards for inclusion in the "F" classification and the date the classification was established are not set out in the record The Gen- eral Counsel's brief equates the "F" classification with the casual classifi- cation, but there appears to be no record basis for that equation In any event, the General Counsel does not argue that the eligibility list pre- pared by the Union for permanent gang assignment was restricted to union members Accordingly, and also because the complaint includes no allegation on this point, I make no finding regarding the list from which the gang assignment was made 1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sistent with the established, written, and objective classi- fication system. Accordingly, I conclude there was a written and objective system for the selection of perma- nent gang members under the seniority plan and that system extended to selections within classifications not- withstanding the existence of some discretion on the part of headers as employer representatives in the selection process. Thus, I find no violation of Section 8(b)(1)(A) and (2) of the Act in the established selection process for permanent gang assignments. The foregoing does not bar a finding of unlawful con- duct on the part of Respondent by virtue of an abuse of discretion in the selections of headers as union agents where based on an abuse of discretion where there was reliance on arbitrary, unfair, and invidious factors in the permanent gang selections. As already related, in their dual agency capacity, the headers as representatives of Respondent were bound not to make selections on an unfair, arbitrary, or invidious basis. The uncontradicted testimony of header Davis clearly reveals that on 6 August he selected Freeman, Brown, Sloan, and Stid- ham, for permanent gang assignments in Davis' gang on nothing more than the request by relatives of these four men. As an employer agent, Davis could lawfully grant such requests, but as a union agent he could not. Thus, Davis' selections can only be regarded as unfair, arbi- trary, and invidious.12 No selections of any other head- ers were shown to be based on similar invalid factors. Although Davis' selections were not specifically alleged to be unlawful, the General Counsel's citing of Davis' se- lections as reflecting the absence of objective criteria in the selection process puts their legality in issue. I find the matter has been addressed and litigated by the parties and is therefore ripe for decision. See Crown Zellerbach Corp., 225 NLRB 911, 912 (1976); Rochester Cadet Clean- ers, 205 NLRB 773 (1973). Because Davis' selections made in his dual agency capacity were clearly unfair and arbitrary, I find the Union violated Section 8(b)(1)(A) and (2) of the Act with respect to these four particular selections for permanent gang assignments. 2 The lack of objective standards in the referral of casuals a. The facts The complaint alleges that Respondent has failed to es- tablish and maintain objective standards for the referral of casual employees under the exclusive referral system and in such failure violated Section 8(b)(1)(A) and (2). The referral system has already been set out above. "Casuals" are at the bottom rung in the referral ladder. The headers select casuals only if they are unable to fill available work slots from the higher classifications All casuals are obviously in the same referral group and compete with each other for referrals. The headers appear to exercise their subjective discretion in selecting a casual during a "shape up." 12 Davis' other selections were based on his personal knowledge or that of his subheader, Sam Brown, of the work ability of those selected, The material facts on which the General Counsel relies to establish a violation regarding the referral of casuals are found primarily in the testimony of Robert O. Willis. Willis testified he had been a member of Respond- ent until 1972 but dropped out when he went into busi- ness for himself. He applied for reinstatement in the Union, but at the time of the hearing had not been rein- stated.13 Willis did not return to the Wilmington area and seek employment through the Union's referral system until December 1986 and did not begin to appear for daily "shape ups" until January 1987. Willis, who was classified as a casual, testified he asked all the head- ers at shapeups for work "at one time or another" but was able to obtain work only 1 day in January and 1 day in February. Willis testified that he had no idea how many casuals he was competing against, but the General Counsel does not argue, nor does the complaint allege, that Willis was the object of specific discrimination in the referral system. The General Counsel argues, as noted, that the hiring system with respect to casuals was unlawful because of the absence of any apparent objective criteria in the se- lection of casuals for work. There are, as the General Counsel points out, no written standards for the qualifi- cation of casuals, and no order of selection of casuals within the classification. The General Counsel claims that Willis was obviously qualified for referral having worked on the docks prior to 1972 and asserts Respond- ent failed to establish why Willis was not selected for work. Respondent, on the other hand, in its brief simply asserts that under the collective-bargaining agreement the headers are responsible to the employer for selecting and working their men in the appropriate categories and thus the headers are agents of the employer rather than the Union in making the selections from within the casual classification. b Conclusions There is not only no evidence, but also no allegation, of any actual discrimination against Willis in this case be- cause there was absolutely no evidence 'that any other casual employee was selected by a header ahead of him on any occasion. In the absence of a prima facie case of discrimination against Willis, Respondent had no burden to establish why Willis was not selected, particularly in light of Sloan's uncontradicted testimony that work was slow and few casuals were ever referred. However, and in any event, the issue of specific discrimination is irrele- vant to the General Counsel's basic contention of a vio- lation by Respondent based on the absence of objective criteria for selecting among casuals for hiring. The Gen- eral Counsel's contention in this regard is based on the discretion utilized by headers in selecting casuals, but it is again strangely inconsistent with his failure to attack the referral system generally, for headers clearly have discretion in selecting people within classifications other and, accordingly, were based on objective factors on which Davis,as the 13 Sloan testified that Willis' application had not been accepted or re- employer agent could lawfully rely and were not therefore unfair, arbi- jected and explained that Respondent has not taken any new members trary, or unreasonable into the Union since 1981 LONGSHOREMEN ILA LOCAL 1426 (WILMINGTON SHIPPING) than casuals bound only by classification, seniority, and "qualifications." 14 I have previously found that headers are dual agents of both the Union and the employer in making selections during shapeups . They were thus bound not only to the contractual and seniority plan provisions regarding selec- tions but also to the Union 's duty of fair representation, i.e , to make selections without an unfair , arbitrary, or in- vidious basis. As noted, there is no evidence that any header breached any obligation of either the employer or the Union in making selections of casuals here. But more directly responsive to the General Counsel's argument here is the unrebutted fact that there is a written and ob- jective standard for the referral of casuals spelled out in the collective-bargaining agreement and the seniority plan. Seniority, to the extent of the order of referral of casuals among classifications, and qualifications for the work are the stated standards . In practice, presence at the shapeup is also a practical factor because it constitut- ed an expression of desire for work. To be sure, discre- tion was allowed the header where all these factors were equal, but one must recall that this hiring system , like the one considered in Stage Employees IATSE Local 592, supra, was not a conventional one, and because of the dual agency status of the header, no conventional refer- ral took place. 15 Rather, there is a hiring by the dual agent. Discretion on the part of the dual agent making a hiring selection at shapeups using any conventional standard normally used for hiring by an employer is not unlawful even if the standards are unwritten or unpub- lished so long as they are not inconsistent with the estab- lished and published hiring system provisions and agree- ments or do not breach statutory obligations imposed on either 'of the dual agent's masters. Casuals here, under the hiring agreement and seniority plan, had equal access to all headers during the shapeup process. Each had an equal opportunity to persuade the headers of their classification, experience, desire for work, and ability 16 Each could inquire of the header why he was not selected if that is the case, and , if unsa- tisfied with the explanation, may file a complaint with the seniority board made up of union and management representatives set up under the seniority plan to rule on disputes regarding the seniority plan and hiring regula- tions.17 Considering the foregoing, and notwithstanding the exercise of discretion by headers in the selection for hire among casuals (as with the selections from within any seniority classification in the hiring system), and in the absence of evidence that in practice selection of casu- i" The only other standard mentioned in this case for the selection of casuals for hiring at a shapeup was an objective one mentioned by Davis in his testimony Thus, Davis testified that in hiring within classifications he tried to hire the one who asked him for the job first is As said by the administrative law judge in Stage Employees IATSE Local 592, supra at 708-709, regarding "referrals" "That term more properly pertains to situations where different agents of two entities, op- erating at arm's length, interact to bring about the employment of an ap- plicant " 16 This procedure also distinguishes the hiring system here from the normal "referral" cases where an individual who fails to be referred never has the opportunity to personally appeal to the employers hiring agent regarding employment 17 Both employees and headers are subject to progressive discipline for breach of the hiring regulations provided in the seniority plan 1159 als was on some arbitrary, invidious, or unfair basis, I conclude the Union did not fail to establish or maintain objective standards for the referral of casual employees in violation of Section 8(b)(1)(A) and (2) of the Act. Ac- cordingly, I shall recommend that the complaint be dis- missed in this regard. C. The Alleged Independent Violations of Section 8(b)(1)(A) The Threats Attributed to Willie Sloan' The testimony of Winfred Clemmons, a member of Respondent since 1963 and presently in the A classifica- tion of the seniority system, provides the basis for the complaint allegations of 8(b)(1)(A) violations attributed to Union President Sloan. First in point of time, the com- plaint alleged that in mid-August 1986 Sloan threatened employee-members who opposed the manner in which Respondent was operating its hiring hall with unspecified reprisals. Clemmons testified that in mid-August he was assigned by a stevedore named Larry Wilson to redo some work that had previously been improperly done by another gang. Clemmons' testimony suggests Wilson was complaining about the quality of work of the new per- manent gang members selected in early August. Clem- mons, who was opposed to having the gangs enlarged, commented that perhaps Wilson should have Sloan over to check out the quality of the work of the new men, adding that some of the new men did not know what they were doing. A few days later, Sloan called Clem- mons into his office and remarked that he had heard of Clemmons' remarks to Wilson through an unnamed long- shoreman, and observed that no one who supported Sloan would make a remark like that. Sloan added that he had a "new thing" coming up in 1987, and in Clem- mons' words, "if he had given anybody anything, if they support him he was going to take it, and if he had any- thing to give to anybody and they didn't support him, he wasn't going to give it to them." As a witness Clemmons tended to generalize, ramble, and frequently testified in vague and conclusionary terms. However, Sloan did not specifically contradict Clemmons regarding the above remarks. Accordingly, and because I perceived Clemmons to be an honest indi- vidual who was attempting to be factual, I credit Clem- mons. The General Counsel contends that Sloan's remark constituted a threat. I concur The record shows that as a practical matter Sloan by specific recommendations to the employers could affect the appointment of headers and "subheaders" who filled in during the absence of headers. Thus, the Union could clearly affect job oppor- tunities of dissidents. Under these circumstances, I find Sloan's remark to Clemmons was a clear threat, that to oppose Sloan would be to risk reprisals. See Carpenters Local 25 (Mocon Corp.), supra at 630. By this threat, I conclude, Respondent violated Section 8(b)(1)(A) as al- leged. The complaint alleges an additional threat of unspeci- fied reprisals by Sloan on or about 15 December 1986 as well as a threat,on the same date to employee-members that their opposition "to the manner in which Respond- 1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent was operating its hiring hall would be futile." The al- legations grew out of a petition circulated among em- ployees and signed by Clemmons protesting the August 1986 increase in the size,. of the gangs and seeking to have the new gang members removed 18 Clemmons tes- tified that in mid-December 1986, he attended the funeral of a fellow member of Respondent where he met Sloan in the presence of Clayton Vaught, vice president of the Union, and Robert Williams, a retired union member. Sloan inquired if Clemmons had his "paper" ready yet Clemmons asked what he was talking about and Sloan replied he was talking about the petition and added that Clemmons could throw it in the trash, because it "ain't going to do any good," and that the men would stay in the gangs. Clemmons' testimony was generally corrobo- rated by Williams. Sloan recalled attending the funeral but could not recall talking to Clemmons there. Vaught did not testify on this matter. Sloan conceded that on another occasion he had told Clemmons, in effect, that the opposition to the increase in the size of the gangs was useless because the employers and Respondent had agreed to it. Clem- mons' testimony on this point as corroborated by Wil- liams is credited, particularly in light of Sloan's admis- sion to having made a similar remark to Clemmons. The General Counsel argues that Sloan's remark was coercive and violative of Section 8(b)(1)(A). Since any opposition to Respondent's officials engaged in by Clem- mons was conduct protected under the Act as outlined in Steelworkers Local 1397 (United States Steel), 240 NLRB 848, 849 (1979). Although Clemmons' involvement in a petition in opposition to Respondent's leadership may have constituted activity protected under the Act, I find Sloan's remarks too vague to be considered as a threat. Sloan's remarks regarding the futility of the petition was nothing more than an expression of his opinion protected under Section 8(c) of the Act. Nothing in Sloan's remark precluded the employee-members pursuit of their goals with the petition. And although Sloan's remarks may have been discouraging to supporters of the petition, no retaliatory action was threatened. Accordingly, I find no violation of the Act based on remarks attributed to Sloan in this instance. The General Counsel argues, as the complaint also al- leges, that Sloan threatened to deny employee-members the position of header if they opposed the manner in which Respondent operated its hiring hall. Predicate for the argument and allegation is Clemmons' testimony that in January 1987 he had another discussion with Sloan in the union hall regarding the "petition " Sloan, according to Clemmons, said he had heard "other fellows" say Clemmois had "tricked" them about the "petition " Clemmons replied that he was not hiding anything from 1B This petition was never produced by any party herein and the exact language of the petition was never ascertained for the record nor were the signers, other than Clemmons and one or two others identified A similar petition was received in evidence addressed "To Whom It May Concern," and asking for an immediate investigation concerning actions taken by President Willie Sloan This petition signed by 36 employee- members was forwarded on 22 September 1986 to Doug Ball, a trustee of the GAT Fund with a cover letter signed by member David Robinson complaining of the "44 Men put into gangs without the knowledge of the Body " Sloan and that he had told the signers of the petition that a copy would be sent to Sloan so he would know whose names were on it. Quoting Clemmons' testimony Sloan responded: So, he said, well, that wasn't what a man going to be a leader or something like this in the Union, sup- posed to be doing. That if you know, I disagree and sign a petition, on something that Management and Labor had agreed upon, then that might interfere with me being a Header or something in the Union. He was going to get like Landon Williams [a former International or District Union official] . .. . [A]nd if he had given anybody anything, and they didn't support him or if he had anything to give, he would not if they did not support him. Sloan conceded in his testimony that he had had a dis- cussion with Clemmons in the union hall regarding the petition, but his version was different and he did not specify the time of the discussion It is thus unclear whether the two men were testifying about the same oc- casion. However, Sloan did not specifically deny the re- marks Clemmons attributed to him in mid-January. Ac- cordingly, Clemmons is credited. Sloan's remarks in this instance are substantially similar to the remarks Clem- mons attributed to Sloan in August 1986 as related above. Like the August remarks, I find Sloan's January remarks to be threatening in nature, only more specific. Here, Sloan clearly pointed out that by virtue of his peti- tions or other opposition to Sloan's actions Clemmons was putting himself at risk for any future consideration as a header. I find therefore that Sloan's January remarks to Clemmons violated Section 8(b)(1)(A) of the Act as alleged. See Carpenters Local 25 (Mocon Corp.), supra, 270 NLRB at 628. Two additional allegations of Section 8(b)(1)(A) of the Act set forth in the complaint are based on actions taken by Sloan against Clemmons. Thus, it is alleged that Re- spondent through Sloan denied voting privileges for Clemmons on 10 February 1987 because of his criticism of union officials, and then on 9 June 1987 refused to allow Clemmons to participate fully in a union meeting. The evidence regarding the denial of voting privileges is again based on Clemmons' testimony. Clemmons testi- fied that in mid-February 1987 he learned that his name was on a list of persons ineligible to vote in an upcoming internal union election for an executive board member and a business agent. On learning this Clemmons tele- phoned Vice President Clayton Vaught and inquired why he could not vote Vaught explained that Sloan had told him to put Clemmons on the ineligible list because Clemmons owed Respondent money in connection with court costs which had been awarded Respondent stem- ming from a legal action Clemmons had brought against Respondent and lost on appeal in 1985 Clemmons re- plied that he had previously shown to Sloan the canceled check paying such costs to Clemmons' attorney, and Sloan said he would "get with" Sloan again and talk to him about the matter. Clemmons explained in his testimony herein that in- stead of forwarding the court costs to the Union or its LONGSHOREMEN ILA LOCAL 1426 (WILMINGTON SHIPPING) attorney in the matter he had forwarded the money to his own attorney who apparently had never forwarded it to the Union. On the Monday following his talk with Vaught, Clemmons met with Sloan and complained that he had shown Sloan the canceled check paying the costs a year earlier. Clemmons' testimony is unclear regarding any specific response by Sloan when Clemmons met with Sloan about the denial of his right to vote. Clem- mons testified he was not in fact allowed to vote. The day following the meeting between Clemmons and Sloan, Clemmons' attorney forwarded the money owed the Union in court costs. Clemmons has voted on union matters subsequent to the payment of the obligation owed. Moreover, Clemmons admitted that under union rules voting eligibility is conditioned on good standing within'the Union which in turn requires being paid up on dues. He was uncertain about the impact on voting eligi- bility of not having meet other financial obligations to the Union such as fines and court costs Nevertheless, Clemmons pointed out that he had not previously been denied his voting rights prior to February 1987 even though the court costs obligation had still been outstand- ing. In fact, Clemmons had run for an office during that period. i 9 Sloan in his testimony did not testify regarding the denial of voting rights to Clemmons. Vaught who also testified did not address this issue either. It is the General Counsel's theory that the refusal to allow Clemmons to vote in the internal union election in February was based not on Clemmons' failure to pay the Union the money owed it but on Clemmons' involve- ment in the petition protesting the increase in permanent gang assignments. After all, the General Counsel claims, Clemmons had shown Sloan a canceled check evidenc- ing payments of cost to Clemmons' attorney and had been allowed to vote in other subsequent elections. With respect to the timing of the denial of voting rights to Clemmons, the General Counsel theorizes that it was re- sponsive to the filing of the original charge in Case 11- CB-1520 on 27 January 1987 by David Robinson. I find the General Counsel's theory and argument speculative at best and unsubstantiated. Notwithstanding the fact that Clemmons had paid his attorney and had in fact shown Sloan the canceled check, the undisputed fact remains that there was no evidence the Union had received pay- ment prior to the February vote, and while Sloan was aware of Clemmons' involvement with a petition protest- ing the increase in the size of the gangs such knowledge long predated the February denial of voting privileges to Clemmons.20 Lastly, Clemmons was not named in the charge in Case 11-CB-1520 and there was nothing in the charge as filed showing that its subject was the dispute over the permanent gang assignments, a dispute with which Clemmons arguably could be associated. While that aspect of the charge may have become clear to Re- spondent and Sloan during the investigation of the case, 19 Also during this same period Sloan had recommended Clemmons for a subheader position and Clemmons had obtained and retained that position at all times thereafter 20 As earlier noted, the record does not reflect when Clemmons signed such a petition and the only other petition on the subject of the gangs which was not signed by Clemmons had been circulated in August and September 1986 1161 there was no evidence Sloan was aware of it prior to the time Clemmons was denied his voting rights. It was not until 27 February that the charge was amended to clear- ly show the gang increase issue, and even then any con- nection between Clemmons and the charge was not shown. Accordingly, I find no violation of the Act in Respondent's denial of voting rights to Clemmons in mid-February. With respect to the complaint allegation that he was not allowed to participate fully in a union meeting, Clemmons testified that at a 9 June 1987 union meeting he began speaking from the floor after he was recog- nized by Sloan who was chairing the meeting. Before he completed making his remarks Sloan told him his "2 minutes" were up. Clemmons protested that no one else had been limited to 2 minutes. Sloan nevertheless replied, according to Clemmons, that Clemmons' time was up. Sloan then proceeded to recognize another member who then stated he would yield his time to Clemmons. Sloan disregarded the response and proceeded to recognize a third member Clemmons' testimony regarding the meeting was cor- roborated by members Eugene Davis and John Newton. Sloan in his testimony did not generally dispute Clem- mons' version except that he did not refer to limiting Clemmons to 2 minutes. He testified that he just thought Clemmons had talked about 5 minutes and there were others raising their hands to speak, so Sloan sounded his gavel, told Clemmons he was out of order and to take a seat. Thereafter, Sloan proceeded to recognize another individual who then yielded to Clemmons. Since this had never been done before Sloan refused to allow it and proceeded to recognize someone else. Respondent's recording secretary, Kenneth Grady, also generally corroborated Clemmons' version of what took place at the 9 June meeting but was unsure whether it was Sloan or the parliamentarian who called time on Clemmons. He testified it wasn't unusual for individuals recognized by the chairman to talk over 2 minutes. Fur- ther, he said it wasn't Sloan's regular practice to time men. Grady also testified that Clemmons on 9 June had had the floor twice before he was cut off by Sloan, and was recognized by Sloan once afterwards and talked on a different subject. Vice President Vaught likewise testi- fied that Clemmons spoke again in the meeting after the occasion when Sloan called time on him Respondent's parliamentarian, Chester Wiggins, testify- ing for Respondent, related that Clemmons had talked several times from the floor on 9 June over and above the other members without being specifically recognized by Sloan. On the occasion when he was recognized, Wiggins said Clemmons talked 3 or 4 minutes by Wig- gins' estimation before Sloan told him his time was up Clemmons, according to Wiggins who described Clem- mons as belligerent and a man who "had to have his way" whenever there was a controversy, continued to protest. Other men had been "gaveled down" by Sloan on other occasions according to Wiggins. While Wiggins related that Respondent follows Roberts Rules of Order at its meetings and although those rules allow persons 1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD recognized from the floor to speak for 2 to 5 minutes the "understood" limit at the meetings was 2 minutes. The General Counsel argues that Clemmons was arbi- trarily and discriminatorily limited in his remarks at the union meeting because of his general opposition to Sloan, that this action was part of a general harassment pattern against Clemmons, and that such action therefore violat- ed Section 8(b)(1)(A) of the Act. Respondent argues in effect that Sloan as chairman of the meeting had the dis- cretion to run it in an orderly fashion and that Clemmons was not the object of arbitrary or discriminatory action. It appears self-evident that the one who chairs or runs a meeting must have authority to control the meeting to prevent disorder and chaos. In the instant case what ap- pears as uncontroverted is the fact that Clemmons spoke on more than one occasion at the meeting and at' least once after his time had been called. Having observed Clemmons as a witness, I found him a somewhat excita- ble individual, and find credible Wiggins' description of him Since I find that Clemmons did speak after the oc- casion when Sloan called time on him, I find that Sloan's calling time on him did not preclude Clemmons' expres- sion of views even assuming that such expressions on whatever matter were a right protected under the Act. Moreover, notwithstanding the evidence regarding the relationship between Sloan and Clemmons, I am unper- suaded that Sloan's calling time on Clemmons was based on motivations stemming from that relationship. Had Sloan intended to keep Clemmons from expressing his views it is likely he would not have even granted him the floor to speak to begin with, or further allowed him to speak again after calling time on him. Accordingly, under these circumstances, I find Respondent did not violate Section 8(b)(1)(A) of the Act in limiting Clem- mons' speaking on this one occasion THE REMEDY It having been found that Respondent through carpen- ter header Davis breached its duty of fair representation by selecting four employee-applicants for permanent gang assignment on the arbitrary basis of request by their relatives, it will be recommended that Respondent be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Notwithstanding the absence of any named alleged dis- criminatees in the complaint in connection with the per- manent gang assignments, the General Counsel urges a backpay remedy in this case. Recognizing the difficulty in establishing which individuals would have been chosen for permanent gang assignments had Respondent not breached its duty of fair representation, the General Counsel suggests the hours worked in the industry since 1981 would be an appropriate objective standard for se- lection for remedial purposes.2 i However, the total hours worked has not been shown to be a factor in selec- tion for past permanent gang assignments beyond their grouping within a seniority classification Moreover, and 21 The record does contain evidence showing the total number of hours worked since 1981 by those in the classification from which perma- nent gang members involved in this case were selected while the eligible employee-applicants who were not se- lected for gang assignments on 6 August 1986 constituted an identifiable group, it is by no means clear that all eli- gible other than Briggs, a charging party herein, who was not named as a discriminatee in the complaint, in fact desired permanent gang assignment or were even available for permanent gang assignment.22 Finally, it is not at all clear that those arbitrarily selected by Davis would not have been selected on the merit of their quali- fications if Davis accorded appropriate consideration to qualifications as required under the bargaining agreement and seniority plan. In this regard, Davis testified that of the six selections that he made for his carpenter gang, three had prior carpenter experience. As already noted, he had selected four on the basis of request by relatives. One, at least, therefore, must have had prior carpenter experience. Accordingly, and particularly because of the absence of any discriminatees' named in the complaint, I conclude that no backpay remedy for the violation found herein with respect to the selection for permanent gang positions would be appropriate. See Longshoremen ILA Local 851, 194 NLRB 1027 (1972). See also Electrical Workers IBEW Local 99 (Crawford Electric), 214 NLRB 723 (1974), where a breach of the union's duty of fair representation was found without ordering backpay for any discriminatees other than those named in the com- plaint. CONCLUSIONS OF LAW 1. Wilmington Shipping Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent, International Longshoremen's As- sociation, Local 1426, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, by threatening employee-members that their opposition to union leadership in the operation of an exclusive hiring hall would meet with diminished op- portunity for header positions and with other unspecified reprisals, violated Section 8(b)(1)(A) of the Act. 4. Respondent, by choosing individuals for permanent gang assignments on or about 6 August 1986 based on unfair, arbitrary, and invidious considerations breached its duty of fair representation and caused employers to discriminate against unnamed individuals within the same seniority classification and thereby violated Section 8(b)(1)(A) and (2) of the Act. 5. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 6. Respondent has not violated the Act in any other manner alleged in the consolidated complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed23 22 Unlike the selections made during daily shapeups where presence of the employee-applicant was necessary for selection, presence of the em- ployee-applicant was apparently not required during the selection for per- manent gang assignments 22 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Continued LONGSHOREMEN ILA LOCAL 1426 (WILMINGTON SHIPPING) 1163 ORDER The Respondent, International Longshoremen 's Asso- ciation, Local 1426, Wilmington, North Carolina, its offi- cers, agents, and representatives, shall 1. Cease and desist from (a) Threatening employee-members that their opposi- tion to union leadership in the operation of an exclusive hiring hall will meet with diminished opportunity for header positions and with other unspecified reprisals. (b) Choosing individuals for permanent gang assign- ments based on unfair , arbitrary, and invidious consider- ations thereby denying employment opportunities to other qualified employee applications and users of the ex- clusive hiring hall system. (c) In any like or related manner restraining or coerc- ing employee applicants or members of Respondent in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Select employee-applicants for permanent gang as- signments on the basis of fair and objective criteria con- sistent with the collective-bargaining agreement and se- niority plan in effect with Wilmington Shipping Compa- ny and North Carolina Shipping Association. (b) Post at its main hall or office in Wilmington, North Carolina, and its meeting place for members and users of its exclusive hiring hall system , copies of the attached notice marked "Appendix." 24 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by Respondent's authorized represent- ative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecutive days in con- spicuous places including all places where notices to members are customarily posted . Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 24 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- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the al Labor Relations Board " shall read "Posted Pursuant to a Judgment of Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National poses Labor Relations Board "