Longshoremen Ila Local 20 (Rowland)

LONGSHOREMEN ILA LOCAL 20 (ROWLAND) 693 International Longshoremen's Association, Local 20, AFL-CIO (W. W. W. Rowland, Western Con- tainer Repair) and David Witting, and West Gulf Maritime Association, Party to the Con- tract. Case 16-CB-3438 September 10, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On June 4, 1990, Administrative Law Judge Lawrence W Cullen issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief The National Labor Relations Board has delegat- ed its authonty in this proceeding to a three- member panel The Board has considered the decision' and the record in light of the exceptions and bnefs and has decided to affirm the judge's rulings, fmdmgs, and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, International Longshoremen's Association, Local 20, AFL-CIO, Houston, Texas, its officers, agents, and representa- tives, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge The adnumstrative law judge Inadvertently cited Journeymen Pepe Fet- ters Local 392 (Kaiser Engineers), 252 NLRB 417 (1980), enf denied 712 F 2d 225 (6th Car 1983), as Plumbers Local 392 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 restrain and coerce our members, including employees of the Employer, in the exer- cise of their rights guaranteed by Section 7 of the Act by arbitrarily and capriciously imposing disci- pline on them and prohibiting and preventing them from working for an employer and by imposing on .designated employees an additional requirement that they report to the union hiring hall for daily dispatch to their regular employer, in the absence of a validly promulgated rule requiring them to report planned absences in advance to the Union WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL make David Witting whole for any loss of earnings and other benefits he may have in- curred as a result of the discrimination against him and any additional costs incurred by reason of the unlawful daily dispatch requirement imposed on him WE WILL remove from our files any reference to the unlawful disciplme we issued against David Witting, including the daily dispatch reporting re- quirement, and notify him in writing that we have done so and that we will not use the unlawful dis- cipline against him m any way and will no longer require him to report to the union hiring hall for daily dispatch to the Employer INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 20, AFL-CIO Tamara J Gant, Esq , for the General Counsel Sidney Ravkind Esq (Mandell & Wright), of Houston, Texas, for the Respondent DECISION STATEMENT OF THE CASE LAWRENCE W CULLEN, Administrative Law Judge This case was heard before me on December 11, 1989, at Houston, Texas The hearing was held pursuant to a complaint filed by the Regional Director of Region 16 of the National Labor Relations Board (the Board) on Oc- tober 6, 1989 The complaint is based on a charge filed by the Charging Party, David Witting, an individual, on October 4, 4989, and alleges that International Long- shoremen's Association, Local 20, AFL-CIO (the Re- spondent or the Union) has violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act (the Act) by prohibiting Witting, who is a member of Respondent Union, from working for W W Rowland, Western Con- tainer Repair (the Employer or Rowland) for the period of 1 week from August 14 to 20, 1989, and by thereafter requiring Witting to report to Respondent's hiring hall for daily dispatch to his employment at Rowland because of Wittmg's failure to notify Respondent of his intention to be absent from work for 1 week from May 28 to June 3, 1989, and thus causing Rowland to discriminate against him The Umon has by its answer filed on De- cember 17, 1989, denied the commission of any violations of the Act On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following 299 NLRB No 102 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I JURISDICTION A The West Gulf Maritime Association The complaint alleges, Respondent admits, and I fmd that the West Gulf Maritime Association (the Associa- tion) is and has been at all times material, a corporation duly organized under, and existing by virtue of, the laws of the State of Texas and maintains its principal office and place of business in Houston, Texas, and is a trade association of employers, some of whom are engaged in the repair of ship containers and related equipment, and exists for the purpose of negotiating and administering collective-bargaining agreements made for and on behalf of its respective employer-members, including the Em- ployer herein, and during the 12 months preceding the filing of the complaint, a representative period, in the course and conduct of their business operations, employ- er-members of the Association, collectively, in the course and conduct of their business operations have furnished ship container repair services valued in excess of $500,000 to steamship companies operating vessels in interstate and foreign commerce B The Business of the Employer The complaint alleges, Respondent admits, and I find that the Employer was, and has been at all times materi- al, a Texas corporation with an office and place of busi- ness in Galveston, Texas, and has been engaged in the repair of ship containers and related equipment, that during the 12-month period preceding the filing of the complaint, a representative period, the Employer has, in the course and conduct of its business operations, provid- ed services in excess of $50,000 for Lykes Brothers Steamship Company, Inc , an enterprise directly engaged in interstate commerce and that the Employer is now and at all times material has been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE RESPONDENT UNION The complaint alleges, Respondent admits, and I find that the Respondent Umon is now, and has been at all times matengd, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES Charging Party David Witting had been a member of the Union for approximately 8 years at the time of the hearing The Respondent operates an exclusive hiring hall and Witting had been referred to various employers by Respondent through the years He testified that he had taken off work for personal reasons from his em- ployment with these employers without ever having in- formed the Union in advance without having been the subject of any internal union disciplinary proceedings and that he had never been informed of any rule requir- ing him to inform the Union In early 1988 Lykes Brothers Steamship Company re- quested the Respondent to refer Witting by name to the Employer in order to perform preventive maintenance and repair of Lykes' chassis The Employer decided to commence a chassis-repair business in Galveston after it was informed that Witting would be referred to it in order to satisfy Lykes' requirement that Witting be re- ferred to do the work The Union agreed to refer Wit- ting to the Employer with no requirement that he be dis- patched daily from its hiring hall Witting requested and received the Employer's permis- sion to take off work the week of May 28, 1989, after he learned that his father-in-law had been murdered On June 16, 1989, Respondent's president, W H Nelson, went to the Employer's facility and asked the Employ- er's terminal manager Eddie Prather why Witting had not been paid for the week of May 28, 1989 When Prather told Nelson of the death of Witting's father-in- law, Nelson contended that Witting had a 40-hour guar- anteed job, that required payment to either Witting or a replacement Prather disagreed with this contention and told Nelson there had not been much work that week in any event and that Lykes would not allow anyone but Witting to perform the chassis repair Subsequently Witting received a certified letter dated June 17, 1989, informing him to appear at the union hall on June 28 to answer charges which were enclosed and which had been filed by the Union's first vice president, Rudy Vargas, for taking a week off and not informing the union office The letter also directed Witting to bnng any witnesses to the trial Witting appeared at the umon hall on June 28 along with Prather whom he had taken as a witness At that time Rudy Vargas told them the trial had been postponed as the Union's officials were out of town and that Witting would be informed of the new hearing date Witting subsequently received a letter by certified mail from the Umon dated July 15, 1989, with identical charges by Vargas and which assigned a new trial date setting of July 31, 1989 When Witting ap- peared for the trial held on July 31 with Prather, Prather was not allowed to testify and was not permitted to enter the hearing room The Union wrote to Witting on August 5, 1989, in- forming him that he had been found guilty and that he was being assessed a penalty of 1 week off work from August 14-20, 1989, and that he would thereafter be re- quired to report everyday to the union hall for daily dis- patch to the Employer Witting filed an appeal dated August 14, 1989, with the Union and contended he was innocent as he had received permission from the Em- ployer to be absent commencing with May 26, 1989, and that he believed the instant charges were filed in retalia- tion for his previous firing of another union member An appeal hearing was set and Witting again appeared with Prather who was again not permitted to testify Witting was informed of the denial of his appeal on September 6, 1989 Respondent for its part presented testimony through its president, W H Nelson and its first vice president, James H Steadham, that the discipline of Witting was pursuant to an unwritten rule that a designated employee must notify the union hall in advance of any day that he will be absent in order that the Union may send another LONGSHOREMEN ILA LOCAL 20 (ROWLAND) 695 member to the job to ensure that a union member re- ceives pay for that day Initially, the Union did not supply the General Counsel with any evidence of former discipline of its members for failing to comply with the rule and Nelson testified he was unaware of any prior in- stance wherein discipline had been imposed Subsequent- ly, Steadham testified he recalled an instance involving an employee Billy Oghve wherein Oghve was disciplined for failing to provide advance notice to an employer and failing to show up for the job after a complaint was made by the employer Nelson further testified that the discipline imposed on Witting in the instant case related to a subsequent instance wherein he had informed the Employer but not the Union of his intention to be absent for a day However, Witting testified he was never in- formed of a subsequent charge and the documentary evi- dence supports his testimony that he was disciplined for the original May instance wherein he was off as a result of the death of his father-in-law Analysis I find that the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by prohibiting its member David Witting from working for the Employer for the period of 1 week and by its imposition of the require- ment that Witting report daily to the umon hall to be dispatched to the job with the. Employer in this case Ini- tially I find the evidence is insufficient to support a find- ing that the Respondent Union was retaliating against Witting for his earlier discharge of a union member while acting in the role of a supervisor on the employ- ee's job However, I do find that there was no estab- lished rule that required Witting to notify the Union in advance of his absence when he was not going to report to the job, notwithstanding that he had notified the Em- ployer thereof and obtained its permission As the General Counsel notes in her bnef, and as con- tended by the Respondent Union, it is clear that the Union has a legitimate interest in knowing when one of its members serving as a designated worker for an em- ployer will not be reporting to work in order that it may assert whatever rights it may have to send another member to report to work for that date I note that this is a matter of dispute between the Employer and the Umon involved herein However, in this case, it is clear that the Union had not promulgated a rule and according to the testimony of Witting, whom I credit, he and other employees had not notified the Union in advance of these absences in the past and had not been subject to in- ternal union discipline I also note that in the sole case of prior discipline of a union member brought forth by the Union in this proceeding, that employee had failed to report to the employer and the Union's actions were triggered by the complaint of the employer in contrast to the instant situation, wherein the employer was informed by Witting of Ins need to be absent and approved his re- quest I also cannot Ignore the highly unusual situation in this case wherein the violent death of Wittmg's father-in-law gave rise to the absence of Witting and I do not credit the Union's witnesses assertion that Witting was disci- plined for a subsequent offense as this is refuted by Wit- tmg, who was obviously not made aware of his alleged second offense being asserted by the Union as the cause for his discipline Furthermore the documentary evi- dence supports Wittmg's testimony I also note the Union's refusal to permit Witting to present his witness after being invited to do so by the notice of the trial which is indicative of a failure to permit its member fair representation and some semblance of due process Under all the circumstances of this case, I find that the Union's actions in imposmg discipline of the loss of a week's work and pay, and a more onerous reporting re- quirement on Witting in the absence of a specific rule re- quiring him to notify the Union in advance of his ab- sence was arbitrary and capricious and inconsistent with its duty to afford fair representation to its members over whom it holds economic life or death by virtue of its ex- clusive hiring hall status and thus violated Section 8(b)(1)(A) and (2) of the Act The case of Operating Engineers Local 406 (Ford, Bacon & Davis), 262 NLRB 50, 51 (1982), enfd 701 F 2d 504 (5th Car 1983), relied on by the General Counsel, is clearly in point In that case the Board found a violation when union members lost work as a result of an unan- nounced change in an internal union rule, and stated Even assuming the absence of specific discriminato- ry intent, a violation must be found in the circum- stances of this case The Board has held that any departure from established exclusive hiring hall pro- cedures which results in a demal of employment to an applicant falls within that class of discrimination which inherently encourages union membership, breaches the duty of fair representation owed to all hiring hall users, and violates Section 8(b)(1)(A) and (2), unless the Umon demonstrates that its interfer- ence with employment was pursuant to a valid union-security clause or was necessary to the effec- tive performance of its representative function See also Scofield v NLRB, 394 U S 423 (1969), wherein the Supreme Court stated Section 8(b)(1) leaves a umon free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has im- bedded in the labor laws, and is reasonably enforced against union members who are free to leave the Union and escape the rule See also Electrical Workers IBEW Local 211 v NLRB, 821 F 2d 206 (3d Or 1987), and Cell-Crete Corp, 288 NLRB 262, 264 (1988), wherein the Board stated In this regard, the Board has held that notwith- standing the absence of specific discriminatory intent "any departure from established exclusive hiring hall procedures which results in a denial of employment to an applicant inherently encour- ages union membership, breaches the duty of fair representation owed to all luring hall users, and vio- 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lates Section 8(b)(1)(A) and (b)(2)," absent demon- stration of a legitimate justification 1 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operation of the Employer, W W Rowland, Western Container Repair and the activities of the West Gulf Maritime Association described in section I, above, have close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce CONCLUSIONS OF LAW 1 The Employer and the Association are engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Respondent Union is a labor organization within the meanmg of Section 2(5) of the Act 3 By prohibiting and preventing David Witting from working for the Employer from August 14 through 20, 1989, and by requiring him thereafter to report to its hinng hall for daily dispatch to his employment at the Employer, the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent Union has engaged in certain unfair labor practices in violation of Sections 8(b)(1)(A) and 8(b)(2) of the Act, I shall recommend that it be ordered to cease and desist and to take affirmative actions designed to effectuate the policies of the Act I shall recommend that Respondent Union be ordered to make David Witting whole for any loss of earnings or benefits he may have mcurred as a result of the discrimi- nation against him including any costs incurred by reason of his being unlawfully required to report daily to be dispatched from the union hall to the Employer The loss of earnings and benefits shall be computed in ac- cordance with F W Woolworth Co, 90 NLRB 289 (1950) Interest shall be computed m the manner pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) 2 It is further recommended that Respondent expunge from its files any reference to the unlawful dis- ciplme issued to its member David Witting and cease and desist from requiring him to report to its hiring hall for daily dispatch to the Employer and inform him in writ- ing of these actions and post the attached notice Operating Engineers Local 406 (Ford Bacon & Davis), 262 NLRB 50, 51 (1982), enfd 701 F 2d 505 (1983), and see Plumbers Local 392 (Kaiser Engineers), 252 NLRB 417 (1980) 2 Interest on and after January 1, 1987, is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S C §6621 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER The Respondent, International Longshoremen's Asso- ciation, Local 20, AFL-CIO, Houston, Texas, its offi- cers, agents, and representatives, shall 1 Cease and desist from (a) Restraining and coercing its members including em- ployees of the Employer in the exercise of their rights guaranteed by Section 7 of the Act by arbitrarily and ca- priciously imposing discipline upon them and prohibiting and preventing them from working for an employer and by imposing on designated employees an additional re- quirement that they report to the union hiring hall for daily dispatch to their regular employer in the absence of a validly promulgated rule requiring them to report planned absences in advance to the Union (b) In any like or related manner restraining or coerc- ing employees m the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Make David Witting whole for any loss of earnings and other benefits he may have incurred as a result of the discrimination against him and any additional costs incurred by reason of the unlawful daily dispatch re- quirement in the manner set forth in the recommended remedy (b) Remove from its files, any reference to the unlaw- ful discipline issued by it against David Witting, includ- ing the daily dispatch reporting requirement and notify him in writing, that it has done so and that it will not use the unlawful discipline against him m any way and will no longer require him to report to the Umon hiring hall for daily dispatch to the Employer (c) Post at its business office and at its meeting places copies of the attached notice marked "Appendix " Copies of the nonce, on forms provided by the Regional Director for Region 16, after being signed by Respond- ent's authorized representative, shall be posted by Re- spondent immediately on receipt and maintained for 60 consecutive days, in conspicuous places, including all places where notices to members are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 3 If no exceptions are filed as provided by Sec 102 46 of the Board's Ruled and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 4 If this Order is enforced by a judgment of a United States court of appeals, the words m the notice readmg "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"