International Longshoremen’s Association, Local 1526 (Southeast Florida Employers Port Association,

373 NLRB No. 13 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. International Longshoremen’s Association, Local 1526 (Southeast Florida Employers Port Associ- ation, Inc.) and Darryl Payne. Case 12–CB– 272549 January 19, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX On January 31, 2023, Administrative Law Judge Kelt- ner W. Locke issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Re- spondent filed a reply brief. The National Labor Relations Board has delegated its authority in this matter to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs1 and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified and set forth in full below.3 1 In her answering brief, the General Counsel argues that the Board should disregard the Respondent’s exceptions and supporting brief in their entirety because they do not comply with Sec. 102.46 of the Board’s Rules and Regulations. We find it unnecessary to pass on the General Counsel’s argument because we reject the Respondent’s excep- tions on the merits. The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative 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. In addition, some of the Respondent’s exceptions allege that the judge’s rulings, findings, and conclusions demonstrate bias and prejudice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondent’s contentions are without merit. In affirming the judge’s findings and conclusions, we do not rely on his speculation regarding what other members of the Respondent may have thought about the criminal charges against Charging Party Darryl Payne or why Payne was not elected as the Respondent’s president in 2019. 3 Although the judge set forth the method for computing the make- whole relief owed to Payne in his proposed order, he inadvertently failed to do so in the remedy section of his decision. We amend the remedy to clarify that the Respondent must make Payne whole in ac- cordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in ORDER The National Labor Relations Board orders that the Respondent, International Longshoremen’s Association, Local 1526, Fort Lauderdale, Florida, its officers, agents, and representatives, shall 1. Cease and desist from (a) Reducing employees’ and members’ seniority in retaliation for activity protected by Section 7 of the Act. (b) In any like or related manner restraining or coerc- ing employees in 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) Restore the seniority that Darryl Payne held on August 26, 2020, before the Respondent unlawfully re- duced it, and add to that figure any additional seniority that Darryl Payne has accrued since that date. This addi- Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), we have also amended the make-whole remedy and modified the judge’s rec- ommended Order to provide that the Respondent shall compensate Payne for any other direct or foreseeable pecuniary harms incurred as a result of its unlawful reduction of his seniority. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. Unlike his colleagues, Member Kaplan would require the Respond- ent to compensate Payne for other pecuniary harms only insofar as the losses were directly caused by the unlawful reduction of his seniority, or indirectly caused by the unlawful action where the causal link be- tween the loss and the unfair labor practice is sufficiently clear, con- sistent with his partial dissent in Thryv, Inc. Additionally, unlike his colleagues, Member Kaplan would not order the Respondent to “support” any request Payne might make to the seniority board for a new seniority determination. In his view, this remedy is not appropriate because the record does not establish that the Respondent regularly represents or assists its members in their appeals to the seniority board. Instead, Member Kaplan would simply require that the Respondent not interfere with any future request by Payne. Member Wilcox agrees with the remedy ultimately provided by the judge—i.e., to restore the seniority that Darryl Payne held on August 26, 2020, before the Respondent unlawfully reduced it, and to add to that figure any additional seniority he has accrued since that date in accord with the provisions of the collective-bargaining agreement. However, she does not believe that the other aspects of his remedial discussion are necessary. In addition, Member Wilcox adopts the judge’s finding of the violation under the duty-of-fair-representation analysis and therefore finds it unnecessary to pass on the judge’s analy- sis of the violation under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language and in accordance with our deci- sions in Paragon Systems, Inc., 371 NLRB No. 104 (2022). We shall substitute a new notice to conform to the order as modified. Member Kaplan acknowledges and applies Paragon Systems as Board prece- dent, although he expressed disagreement there with the Board’s ap- proach and would have adhered to the position the Board adopted in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 tional seniority shall be determined in accordance with the provisions in the collective-bargaining agreement between the Respondent and Southeast Florida Employ- ers Port Association, Inc. (b) Make Darryl Payne whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms, suffered as a result of reducing his sen- iority, in the manner set forth in the remedy section of the judge’s decision as amended in this decision. (c) Compensate Darryl Payne for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all hiring hall and refer- ral records, and any other records and documents, includ- ing an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Rescind the undated letter to Darryl Payne, signed by the Respondent’s president, Johnnie Dixon, purport- ing to explain to Payne the reason for the reduction in his seniority and stating that “any appeal” of the seniority board’s determination “would not be warranted” and inform Payne in writing that should he ask the seniority board for a new determination of his seniority, the Re- spondent would support that request and abide by the seniority board’s determination. (f) Post at its Fort Lauderdale, Florida union office copies of the attached notice marked “Appendix.”4 Cop- ies of the notice, on forms provided by the Regional Di- rector for Region 12, after being signed by the Respond- ent’s authorized representative, shall be posted by the 4 If the Respondent’s office involved in these proceedings is open and accessible to a substantial complement of employees and members, the notice must be posted within 14 days after service by the Region. If the office involved in these proceedings is closed or not accessible to a substantial complement of employees and members due to the Corona- virus Disease 2019 (COVID-19) pandemic, the notice must be posted within 14 days after the office reopens and is accessible by a substantial complement of employees and members. If, while closed or not acces- sible by a substantial complement of employees and members due to the pandemic, the Respondent is communicating with employees and members by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforc- ing an Order of the National Labor Relations Board.” Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees and members are customarily posted. In ad- dition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its members by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Within 14 days after service by the Region, deliver to the Regional Director for Region 12 signed copies of the notice in sufficient number for posting by employer- members of the Southeast Florida Employers Port Asso- ciation, Inc., and by any other employers that use the Respondent’s exclusive hiring hall, if they are willing, in all places where their notices to employees are customar- ily posted. (h) Within 21 days after service by the Region, file with the Regional Director for Region 12 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. January 19, 2024. ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONSBOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 3 Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT reduce employees’ and members’ sen- iority in retaliation for activity protected by Section 7 of the National Labor Relations Act. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights listed above. WE WILL restore the seniority that Darryl Payne held on August 26, 2020, before we unlawfully reduced it, and add to that figure any additional seniority which Dar- ryl Payne has accrued since that date, and WE WILL de- termine this additional seniority in accordance with the provisions in the collective-bargaining agreement be- tween us and Southeast Florida Employers Port Associa- tion, Inc. WE WILL make Darryl Payne whole for any loss of earnings and other benefits suffered as a result of reduc- ing his seniority, plus interest, and WE WILL also make him whole for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful reduction, plus interest. WE WILL compensate Darryl Payne for the adverse tax consequences, if any, of receiving a lump-sum backpay award. WE WILL rescind the undated letter to Darryl Payne, signed by our president, Johnnie Dixon, purporting to explain to Payne the reason for the reduction in his sen- iority and stating that “any appeal” of the seniority board’s determination “would not be warranted,” and WE WILL inform Payne in writing that should he ask the sen- iority board for a new determination of his seniority, we would support that request and abide by the seniority board’s determination. INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL 1526 The Board’s decision can be found at https://www.nlrb.gov/case/12-CB-272549 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National La- bor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. Caroline Leonard, Esq. and Pierina Morales Esq., for the Gen- eral Counsel. Darryl Payne, for the Charging Party. Mark J. Berkowitz, Esq., for the Respondent. DECISION KELTNER W. LOCKE, Administrative Law Judge. Each job seeker using the Respondent’s exclusive hiring hall carries a card showing his seniority. When job openings occur, available workers with the highest seniority get called first. The Re- spondent violated Section 8(b)(1)(A) and 8(b)(2) of the Act when its newly-elected president reduced the seniority of an opponent who criticized him during the campaign. PROCEDURAL HISTORY This case began on February 10, 2021, when the Charging Party, Darryl Payne, filed an unfair labor practice charge against the Respondent, the International Longshoremen’s As- sociation, Local 1526.1 The Board docketed this charge as Case 12–CB–272549. On March 17, 2022, after an investigation, the Regional Di- rector for Region 12 of the Board issued a complaint and notice of hearing. In doing so, the Regional Director acted on behalf of, and with authority delegated by, the Board’s General Coun- sel. The Respondent filed a timely answer. On May 6, 2022, the Regional Director amended the com- plaint. On May 17, 2022, the Regional Director issued an amended complaint and notice of hearing. The Respondent filed a timely answer. On July 19, 2022, a hearing opened before me by videocon- ference. The parties presented evidence that day and the next. Then, I adjourned the hearing until August 8, 2022, when it resumed and continued through August 11, 2022. At the close of the hearing on August 11, 2022, I set a deadline for filing briefs, which have been received and considered. UNCONTESTED ALLEGATIONS The Respondent’s answer admits the allegations raised in complaint paragraphs 1, 4(a), 4(b), 5, 6(a), 6(b), and 6(c). Ad- ditionally, at hearing the parties submitted into evidence a 1 The case caption originally referred to the Respondent as the In- ternational Longshoremen’s Association, Local 1526, AFL–CIO, but at hearing the General Counsel amended the complaint to reflect that the International Longshoremen’s Association has withdrawn from the AFL–CIO. The case caption is hereby amended to reflect that change. In this decision, the International Longshoremen’s Association will be referred to as the “ILA” or the “International Union,” and Local 1526 will be referred to as the “Respondent” or the Union.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 signed written stipulation of the facts and conclusions alleged in complaint paragraphs 2(a), 2(b), 2(c), 2(d), 3(a), and 3(b). Based on the Respondent’s answer and the stipulation, I find that the General Counsel has proven these allegations. More specifically, I find that the unfair labor practice charge was filed and served as alleged in complaint paragraph 1. Further, I find that Florida International Terminal, LLC (hereafter FIT) is a Florida limited liability company with an office and place of business at Port Everglades in Fort Lauder- dale, Florida, and that at all material times it has been engaged in the business of loading and unloading freight and providing other stevedoring services. The parties stipulated that “FIT functions as an essential link in the transportation of freight in interstate commerce” and that, during the preceding 12 months, it derived gross revenues in excess of $50,000 for the transpor- tation of freight in interstate commerce under arrangements with and as agent for various common carriers engaged in in- terstate commerce. Accordingly, I conclude that FIT is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that its volume of business affecting interstate commerce satisfies the Board’s discretion- ary standards for the assertion of jurisdiction. Further, I conclude that the Southeast Florida Employers Port Association, Inc. (hereafter called SEFEPA or the employ- ers’ association) has been, at all material times, an organization composed of FIT and other employers in the stevedoring and maritime industry. It represents those employer-members in negotiating and administering collective-bargaining agreements with labor organizations, including the ILA and its local unions, one of which is the Respondent. Such negotiations are with respect to the rates of pay, wages, hours of work, and other terms and conditions of employment of employees performing longshore work at southeast Florida ports, including Port Ever- glades in Fort Lauderdale, Florida. The Respondent has admitted, and I find, that both it and the ILA are labor organizations within the meaning of Section 2(5) of the Act. It also has stipulated, and I find, that at all material times its president, Johnnie Dixon, and its vice president, Leon Taylor, Jr., have been its agents within the meaning of Section 2(13) of the Act. At all material times, the International Union, on behalf of the Respondent and certain other of its local unions, has been the exclusive bargaining representative, within the meaning of Section 9(a) of the Act, of the following employees of the em- ployer-members of SEFEPA: Gang foremen/headers, dock foremen, yard foremen, gantry crane operators, tractor trailer drivers, winchmen, pay loader operators, bulldozer operators, operators of equipment with a lifting capacity of over 40,000 pounds, operators of shipboard mounted cranes, hatch tenders, flagmen, elevator operators, operators of forklifts and other power industrial machinery and electric lift jacks, gang men (hold men, hook men, and dock men) and all other labor performing longshore work, in- cluding water boys, porters, and gantry crane trainers em- ployed at Southeast Florida ports. The Respondent has admitted, and I conclude, that this unit is an appropriate unit for collective bargaining within the mean- ing of Section 9(b) of the Act. The Respondent also has admitted and I find, that since at least 2012, the International Union, acting on behalf of the Respondent and certain other of its local unions, has entered into with SEFEPA and has maintained and enforced a series of collective-bargaining agreements, the most recent of which is effective by its terms from October 1, 2021, through September 30, 2024. This agreement provides that the hiring hall adminis- tered by Respondent is the exclusive source of referrals of em- ployees for employment by the employer-member of SEFEPA at Port Everglades in Fort Lauderdale, Florida. Based on this agreement and the record as a whole, I find that the Respond- ent’s referral system is an exclusive hiring hall.2 CONTESTED ALLEGATIONS Did a recently-elected union president reduce a rival’s sen- iority to retaliate for things said during the campaign, or simply to correct an error in the records? The answer to that either/or question might determine the outcome of this case, or it might instead lead to a further question: What if the union president reduced the rival’s seniority to correct an actual error but did so to retaliate? The Charging Party, Darryl Payne, is a member of the Re- spondent and previously held a number of union offices. The membership elected him president in 2007 and he served a 3- year term in that office. Payne again ran for president of the Local Union in 2019. One of his opponents, Johnnie Dixon, who was then the Un- ion’s financial secretary, defeated Payne by a wide margin. Dixon took office in February 2020. Dixon admits that on August 26, 2020, he accessed the Union’s computer database and reduced Payne’s seniority.3 Additionally, the Respondent has admitted that Dixon is its agent. Thus, the issue to be decided does not concern whether the Respondent’s president reduced Payne’s seniority, but the law- fulness of that action. The General Counsel alleges that he did so in retaliation for certain statements Payne made while cam- paigning against Dixon. The Respondent denies that it unlawfully discriminated against Payne. In its second amended answer, the Respondent raises a number of “affirmative defenses,” including the follow- ing: III. Respondent. . .does not have inherent authority to alter, 2 In determining whether a hiring hall is “exclusive” or “non- exclusive,” the Board considers both the contractual language which establishes the referral arrangement and the actual practice at the time of the alleged unfair labor practices. See, e.g., Kvaerner Songer, Inc., 343 NLRB 1343, 1345 (2004). In the present case, no evidence sug- gests that the employers, in practice, deviated from the agreed-upon exclusive referral system. 3 Although the Respondent’s answer denies that the Respondent changed Payne’s seniority, Dixon’s uncontradicted admission removes the allegation from dispute. Moreover, Respondent’s computer records document that Dixon made this change on August 26, 2020. As dis- cussed further below, I find that Dixon did reduce Payne’s seniority, as alleged in complaint paragraph 7(a). INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 5 change, modify or revise the Individual Member’s seniority, and the Respondent did not do so improperly, or unlawfully, in this case. IV. The actions of the Respondent herein, were entirely reasona- ble and conducted in the utmost good faith, since its duly au- thorized representatives, properly and lawfully, relied upon, the pertinent seniority records, of any individual members, in- cluding, the Individual Member, in this case, which are kept, and maintained in the ordinary course of business, by the ap- plicable Health and Welfare Fund (“FUND”) in Miami, Flor- ida, and the Southeast Florida Ports. Joint Seniority Board of Trustees.4 There appears to be a tension between these two “affirmative defenses.” The Respondent’s assertion that it lacks the authori- ty to change a member’s seniority necessarily means that its president, acting in his official capacity, also lacks such au- thority. Nonetheless, the Respondent’s president did exactly that. Yet the Respondent does not try to avoid responsibility for this unauthorized act. It does not claim that its president snapped, went rogue, and did something the Respondent neither authorized nor condones.5 To the contrary, the Respondent argues that Dixon’s actions were “entirely reasonable and con- ducted in the utmost good faith” because he relied upon the “pertinent seniority records” maintained by the Health and Welfare Fund and the Joint Seniority Board of Trustees. At first blush, it would appear that the Respondent is arguing that it was reasonable for its president to take an action which exceeded his authority. However, in the absence of a life– threatening emergency, it is difficult to imagine when it would be reasonable for someone to exceed his authority. Perhaps the Respondent’s argument can be recast in terms of whether Dixon’s action was ministerial or discretionary. Usu- ally, the annual computation of a member’s seniority and issu- ance of a new ID card with that number is a routine task. When an unusual, controversial case requires independent judgment, the seniority board makes an official determination. Ordinarily, the Union’s financial secretary performs the rou- tine, ministerial work of updating each member’s card annually and has access to the computer system for that purpose. How- ever, the union president also has access. The Respondent may be arguing that it was reasonable for Union President Dixon to change the computer record because he was simply conforming the information in the database to the seniority board’s determination. As will be discussed be- 4 Respondent’s answer refers to the “Health and Welfare Fund.” In his testimony, Respondent’s president Johnnie Dixon referred to the “Pension and Welfare Fund.” Corliss Sellers testified that she was office manager of the “ILA Benefit Funds.” The collective-bargaining agreement refers to a “Fund for Pension, Welfare, Vacation and Holi- day Benefits” and to a “W.P.V. Fund.” From record as a whole, I con- clude that all of these names refer to the same fund. 5 The Board has observed that a person can be an agent for one pur- pose but not another. See, e.g., Sea Mar Community Health Centers, 345 NLRB 947, 950 (2005), citing Pan-Oston Co., 336 NLRB 305, 306 (2001). However, this is not such a case. low, Dixon’s testimony was confusing and contradictory. At times he claimed that when he changed Payne’s seniority he was just following the seniority board’s determination but he also claimed that he performed a “due diligence” investigation to ascertain Payne’s seniority. During his testimony, Union President Dixon offered a smorgasbord of explanations for his actions. Before examining them, it is helpful to discuss how the hiring hall’s seniority system works. The Seniority System Article 17 of the Respondent’s collective-bargaining agree- ment with the employers’ association establishes rules the Re- spondent’s hiring hall must follow in referring longshore per- sons6 to jobs. These rules are somewhat complicated but they reflect the general principle that hiring hall dispatchers should first offer employment opportunities to available job seekers having the most seniority. Thus, those with less seniority are less likely to obtain work. The contract creates tiered categories. A longshore person with 26 or more seniority years is assigned to the highest cate- gory, “AAA.” When an employer asks the hiring hall to refer someone, the dispatcher first calls longshore persons in this top category. If no one in the AAA category is available, the dispatcher drops down to the “AA” category, consisting of longshore per- sons with 21 to 25-years experience. When jobs remain to be filled after exhausting the “AAA” and “AA” categories, the dispatcher turns to those with 16 to 20-years experience, who are in category “A.” The following table, which appears in article 17 of the contract, summarizes the classification scheme: OVER 25 YEARS = AAA 21–25 YEARS = AA 16–20 YEARS = A 11–15 YEARS = B 6–10 YEARS = C 1–5 YEARS = U The number of years of seniority also determines referral priority within a category. When dispatchers must fill one job opening and there are two available applicants in a given cate- gory, they refer the person with the greater seniority. A person acquires seniority by working in jobs obtained through the hiring hall. More specifically, the collective- bargaining agreement provides that a longshore person will earn a year of seniority credit by working at least a certain min- imum number of hours during a contract year, which begins on October 1 and ends the following September 30. The minimum number of hours needed to earn a seniority credit varies de- 6 Although the Respondent is Local 1526 of the International Long- shoremen’s Association, the collective-bargaining agreement’s seniori- ty provision uses the term “longshore person,” with a space between “longshore” and “person.” In accordance with the collective- bargaining agreement, I will use the term “longshore person” in this decision. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 pending upon the particular contract year.7 However, a person also can receive such credit by serving as a union official8 during that period, by being on workers’ com- pensation or otherwise having a documented medical condition which precluded work,9 or by military service.10 Every January, the longshore persons using the Union’s hir- ing hall receive new photo ID cards. Each card shows that particular longshore person’s years of seniority and the result- ing category code. For example, a card showing 26 years of seniority credit should also bear the notation “AAA.” Each year, the Union’s financial secretary issues updated cards to more than 500 people who use the hiring hall. The Respondent and the employers’ association established a seniority board11 to resolve questions concerning how much seniority credit a particular longshore person had earned. Vari- ous witnesses testified without contradiction that the seniority board’s decisions are binding on the Respondent.12 Charging Party Payne’s Seniority Charging Party Payne began using the Respondent’s hiring hall in 1983 and became a union member in 1991. In 2002, the Union’s membership elected him treasurer. He later became 7 The collective-bargaining agreement provides that, for each con- tract year during the period October 1, 1956, through September 30, 1997, a longshore person had to work at least 700 hours in a contract year to earn a year’s seniority credit. On October 1, 1997, the mini- mum number of hours increased to 775. It increased to 850 on October 1, 2002, and to 1000 hours on October 1, 2010. The requisite number of hours dropped to 700 on October 1, 2012. 8 The collective-bargaining agreement provides: Any longshore person performing work as an official to the Local, Union District or International Union, or an employee, whose work is connected with the union, shall have time credited toward the seniority system as though they actually did longshore work in the Southeast Florida Ports area. 9 The collective-bargaining agreement provides: Any longshore person engaged in actual longshore work in the Southeast Florida Ports area that by reason of injury or illness has been unable to discharge his duty as a longshore person, shall be given credit for such time lost by reason of such illness, injury toward their seniori- ty. 10 The collective–bargaining agreement provides: Any longshore person who has worked in such capacity prior to en- tering service in the Armed Forces of the United States and who within ninety (90) days after discharge. returns to longshore work in the Southeast Florida Ports area, shall be given credit for seniority status as though having actually worked in the industry within the Southeast Florida Ports area. 11 The board’s official name is the “Southeast Florida Ports Joint Seniority Board of Trustees.” 12 Respondent’s President Dixon testified that when the seniority board makes a determination concerning a longshoreman’s seniority, the local union to which the longshoreman belongs is required to honor that decision and apply it immediately. The former director of the employers’ association, Charles Maravolo, also testified that the senior- ity board’s determinations were final and binding. So did Torrence Little, a union member who previously served as the Respondent’s financial secretary. Based on the uncontradicted testimony of these witnesses, I find that the union officers have no authority to ignore or modify a determination of the seniority board. vice president of the Local. In December 2007, the member- ship elected Payne president, a position he held for one 3-year term. During contract the year ending September 30, 1991, Payne worked 920 hours, enough to earn 1 year’s seniority credit. However, during the 1991/1992 year, which ended September 30, 1992, Payne did not work enough hours to receive a seniori- ty credit. Likewise, he did not work sufficient hours to earn seniority credits in 1992/1993, 1993/1994, and 1994/1995. For at least some of this time, an injury prevented Payne from working. Under the established rules, a longshore person is entitled to seniority credit for the period of medical disability. The seniority board relies on some standard paperwork to doc- ument how long the individual was unable to work. In Payne’s case, that paperwork included a United States Department of Labor Form LS-208, which showed how long he had received workers’ compensation. Since a person only draws this benefit while unable to work, the seniority board can assume that an individual was disabled only for the period specified on the form. On February 24, 2011, the seniority board determined, and recorded in its minutes, that Payne should receive “credit for 4 years, (91/92, 92/93, 93/94, 94/95) as per LS208 out on work- ers compensation.” The reference to “LS208”—meaning the Department of Labor’s Form LS-208—makes clear that the seniority board based its decision on information the form pro- vided. However, someone had altered this form. The original copy had shown that Payne’s workers’ compensation had started on “5/11/91” and had ended on “9/13/91,” a period of about 4 months. On the altered copy, someone had changed “9/13/91” to “9/13/94,” thereby indicating that Payne had been disabled not for 4 months but for more than 3 years. The seniority board unwittingly had based its calculation on the altered date. On Valentine’s Day 2013, a Federal grand jury indicted Payne on mail fraud charges related to the alteration of the Department of Labor form. On July 7, 2014, a jury trial began. It lasted 14 days. On the 15th day, the jury acquitted Payne. Of course, the jury’s finding that Payne did not alter the form does not mean that the information on the form was correct. Someone else could have changed it. Payne’s own testimony, during cross-examination in the present case, acknowledges that he was not on workers’ compensation for 3 years in the early 1990s: Q. Okay. But my question is simply, sir, that the form indi- cates that you were out from 5/11 of ‘91 to 9/13 of ‘91. That’s the correct one, and the on[e] that was allegedly falsi- fied says 5/11/91 to 9/13 of ‘94. Is that correct? A. Yes, sir. I agree with you, that’s what’s on these docu- ments. One is accurate and one is falsified, yes, sir. Payne was not on workers’ compensation during the 12- month periods which ended on September 30 of 1992, 1993, and 1994. He also did not work the required 700 hours during any of those years. Therefore, the seniority board erred in 2011 when it awarded him seniority credit for those years. The seniority board’s February 24, 2011 decision did not state what Payne’s total seniority would have been on that date. INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 7 It only stated that he was to receive credit for 4 years - 91/92, 92/93, 93/94, and 94/95—because the altered LS-208 form showed him to be on worker’s compensation during those years. To calculate Payne’s total seniority as of February 24, 2011, requires reference to another document, not maintained by the seniority board but by a separate benefits office. The information in this document, generated by a computer program called “ISSI,” leads to the conclusions summarized in the table below. Each line in this table refers to the 12-month period beginning on October 1 of the year specified with the first 4 digits and ending on September 30 of the following year. For example, “1991/92” refers to the period beginning October 1, 1991, and ending September 30, 1992.13 The second column in the table shows the hours Payne actu- ally worked during that period. The third column indicates whether the hours worked were sufficient to earn a year’s sen- iority credit. However, a “no” in this column does not signify that Payne should receive no seniority credit for that year but only that he did not qualify for seniority credit based on hours worked. He might have been entitled to seniority credit for some other reason. The fourth column shows the reason why Payne received seniority credit. 1990/91 920 hours Yes Credit based on hours worked 1991/92 328 hours No Credit based only on LS-208 1992/93 20 hours No Credit based only on LS-208 1993/94 80 hours No Credit based only on LS-208 1994/95 0 hours No Credit based only on LS-208 1995/96 966.5 hours Yes Credit based on hours worked 1996/97 1306.5 hours Yes Credit based on hours worked 1997/98 1444.0 hours Yes Credit based on hours worked 1998/99 1794.0 hours Yes Credit based on hours worked 1999/00 1905.0 hours Yes Credit based on hours worked 2000/01 1330.0 hours Yes Credit based on hours worked 2001/02 1479.0 hours Yes Credit based on hours worked 2002/03 2111,5 hours Yes Credit based on hours worked 2003/04 1013.0 hours Yes Credit based on hours worked 2004/05 299.0 hours No Credit based only on workers’compensation 2005/06 2149.5 hours Yes Credit based on hours worked 2006/07 992.0 hours Yes Credit based on hours worked 2007/08 900.0 hours Yes Credit based on hours worked 2008/09 900.0 hours Yes Credit based on hours worked 2009/10 1008.0 hours Yes Credit based on hours worked Thus, without the 4 years of seniority credit based on the al- tered LS-208, Payne would have had 16 years of seniority at the time the seniority board issued its February 24, 2011 deci- sion. That determination increased Payne’s total seniority to 20 years. Of course, when it made its determination in 2011, the sen- iority board had no reason to question the accuracy of the al- tered LS-208 form. The grand jury did not indict Payne until 2 13 Entries in the ISSI record go back to 1985/1986. However, the first year in which Payne worked sufficient hours to receive a seniority credit was 1990/1991. Therefore, the table below begins with 1990/1991. years later. But the indictment generated publicity, as did Payne’s 15-day trial.14 So, it would be reasonable to surmise that the seniority board members would have heard about the altered form by late July 2014, when Payne’s trial ended, if not earlier. But if the senior- ity board members did, in fact, know about the altered LS-208 form in 2014, it is difficult to understand the action they took a year and a half later. By February 11, 2016 letter, the seniority board informed Payne that it had “concluded that you have 25 seniority years.” The letter also stated that “if you want to appeal the decision you must come before the Seniority Board of Trustees.” Payne did appeal. By May 20, 2016 certified letter, the seniority board denied the appeal, advising Payne that it had “concluded that you have 25 seniority years.” On May 23, 2016, the seniority board sent Payne another letter to the same effect. It stated that it had “considered your request or appeal” but “your request has been denied because you are already receiving the maximum number of seniority years you are entitled to.” Unlike the two earlier letters, the May 23, 2016 letter did not suggest that Payne had any further right to appeal but instead stated that, if he had any questions, “please contact your local.” Thus, in 3 separate letters in 2016, the seniority board told Payne the same thing: He had 25 years of seniority. This rul- ing perpetuated the mistake the seniority board unwittingly had made 5 years earlier. In 2016, the seniority board could not have concluded that Payne then had 25 years of seniority unless it accepted as valid its faulty 2011 determination that Payne was entitled to seniority credit for the years 1991/1992, 1992/1993, 1993/1994, and 1994/1995.15 Payne clearly should not have received seniority credit for the last 3 of those years, but there is a possibility he deserves credit for 1991/1992. Payne actually had been on workers’ compensation for about 4 months during the spring and summer of 1991. Arguably, he might still have worked enough hours during the 1991/1992 contract year to earn a seniority credit, although that is not clear.16 14 Payne testified: “I was the immediate past president of the local. Everybody in labor, in this country and outside of this country knew that I had been indicted and acquitted in that case. So yes, everybody knew that I had been indicted.” 15 Although I describe the seniority board’s February 24, 2011 deci- sion as “faulty,” because it was based on incorrect information, I do not suggest that the seniority board bears any blame or culpability for that decision. The seniority board reasonably relied on the LS-208 form in making its determination, and nothing in the record suggests that this board knew, or ought to have known in February 2011, that the docu- ment had been altered. 16 During the 1991/92 contract year, a longshore person had to work at least 700 hours to earn a seniority credit. Payne’s injury had pre- vented him from working about 4 months (from May 11, 1991, to Sep- tember 13, 1991) but he was available for work during the remaining 8 months of this contract year. In fact, he did work for 328 hours during this period. His work during the 1991/1992 contract year therefore fell 372 hours short of the 700 hours required to earn a seniority credit. However, the collective-bargaining agreement provides that any “longshore person DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 The collective-bargaining agreement does not explain how the work credit should be calculated. Additionally, the record does not reflect how the seniority board has applied the con- tractual provision in other cases involving periods of unem- ployment due to injuries. However, he certainly would not have been entitled to seniority credits for the contract years 1992/1993, 1993/1994, and 1994/1995. More specifically, the altered LS-208 form had deceived the seniority board because it indicated Payne was drawing work- ers’ compensation in 1991/1992, 1992/1993, 1993/1994, and 1994/1995 and therefore entitled to a year’s seniority credit for each of these years. As discussed above, if those 4 years had not been counted, Payne’s total seniority, at the time of the seniority board’s determination in February 2011, would have been only 16 years. In each of the next 5 years, Payne worked enough hours to earn a seniority credit. Therefore, at the time Payne received the seniority board’s February 11, 2016 letter, his total seniority actually was 16 + 5. or 21 years.17 The board’s letter, stating that Payne had 25 years of seniority. did not correct the 2011 error but rather, in a sense, enshrined it. Payne’s appeal gave the seniority board the chance to dis- cover and correct its 2011 mistake. Instead, it held to the 25 year figure and said so in letters to dated May 20, 2016, and May 23, 2016. In fact, it got rather adamant. The board’s May 23, 2016 letter left no doubt that it considered its decision final and did not want to be bothered further. The letter concluded by telling Payne that if he had any questions, “please contact your local.” The seniority board made its determination in the middle of the 2015–2016 contract year, so the board actually was decid- ing how much seniority Payne had on October 1, 2015, when that year began. Figuratively speaking, Payne’s “senioritom- eter” rolled up to “25” on that date. As discussed further below, each January the Union issues new identification cards to the longshore persons who use the referral system. On each card appears a longshore person’s photograph and name and other information, including the number of years of seniority that person held at the beginning of the contract year, that is, on October 1 of the preceding cal- endar year. engaged in actual longshore work in the Southeast Florida Ports area that by reason of injury or illness has been unable to discharge his duty as a longshore person, shall be given credit for such time lost by reason of such illness, injury toward their seniority.” For seniority purposes, Payne therefore could claim some of the time he spent on workers’ compensation as hours worked. But how many hours? Would Payne be entitled to 8 hours of credit for each day— excluding Saturdays, Sundays, and holidays—between May 11, 1991, and September 13, 1991? It seems unlikely that Payne actually would have been referred to work for that many days, considering that in the other 8 months of the contract year he worked a total of only 328 hours. 17 As noted above, Payne arguably qualified for a seniority credit for the contract year 1991/1992. If so, he would have had 17 years seniori- ty when the seniority board made its February 2011 determination and, therefore, 22 years when the seniority board issued its February 11, 2016 letter. The face of the identification card does not show the date it was issued but does state the date the card expired, which was one year after issuance. Thus, if the legend on a particular card stated that it expired on January 15, 2017, the card was issued around January 15, 2016, and the seniority shown on the card reflected the person’s seniority as of October 1, 2015. The Union issued Payne a card with a stated expiration date of “01/15/2017.” From that date, I infer that Payne received this card in January 2016. That would be consistent with Payne’s testimony that he had this card at the time the seniority board sent its February 11, 2016 letter stating that Payne had 25 years of seniority. The card also stated that Payne had 25 years of seniority. The General Counsel argues, in effect, that the number 25, written on Payne’s piece of plastic, should be considered chis- eled in granite. Because the seniority board had determined that Payne possessed 25 years of seniority in February 2016, she contends, that figure should be taken as axiomatic for all future calculations of his seniority. The General Counsel’s brief states: If [Union President] Dixon had truly been doing his “due dili- gence,” he would have treated the February and May 2016 decision of the Seniority Board “confirming” Payne’s 25 years of seniority as of those dates as the binding decisions they were, and worked forward from there. (Italics added.) As will be discussed below, if Union President Dixon had honored the seniority board’s determination that Payne had 25 years of seniority in 2016, Dixon could not logically have found that Payne also had 25 years seniority 4 years later, in 2020. But he did. Dixon attempts a variety of explanations, discussed below, for his conclusion. However, before examining Dixon’s actions and motivation, it is helpful to know how much seniority Payne had in 2020 under the General Counsel’s theory. Was Payne’s seniority really 26 years, as the computer had shown on the date Dixon reduced it? If Payne had less than 26 years seniority on this date, then setting it at 25 caused no harm. Using the General Counsel’s method, the calculation begins by taking, as a given, the seniority board’s determination that Payne had 25 years seniority on the date of the seniority board’s February 11, 2016 letter. The seniority board issued this determination in the middle of the contract year which began on October 1, 2015. The amount of work which Payne performed during this contract year would determine whether his seniority would rise to 26 years, effective October 1, 2016. It turns out that Payne worked more than enough hours to qualify for an additional year of seniority as of October 1, 2016. The Union issues updated identification cards each January, so in January 2017, Payne presumably would have received a card showing 26 years of seniority. However, he did not get a new card that January because he had suffered a serious injury and was unable to work. The injury happened on October 17, 2016, less than 3 weeks into the new contract year. Payne had been assigned to operate one of the tall gantry cranes used to offload cargo. While climbing the ladder to the crane’s cab, he slipped on a greasy rung and fell. He remained disabled in January 2017, when the INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 9 Union’s financial secretary issued new cards. However, during the 2015–2016 contract year, Payne had worked more than enough hours to earn a seniority credit. Therefore, I conclude that if the Union had issued him a card in January 2017, it would have stated that he had 26 years of sen- iority. Payne remained disabled during the entire 2016–2017 con- tract year. Under the negotiated seniority provision, a disabled longshore person is entitled to receive work credit for such a period of disability. Therefore, after the contract year ended on September 30, 2017, Payne’s seniority should have increased from 26 to 27 years. Even though Payne remained disabled, the Union did issue him an identification card in January 2018 and a copy of it is in the record.18 However, this card stated that he had 26 years of seniority, not 27.19 Payne remained disabled throughout 2018,20 and therefore was entitled to a seniority credit for the 2017–2018 contract year. Nonetheless, the next card issued21 still showed 26 years seniority. However, using the calculation method advocated by the General Counsel, which starts with the assumption that Payne had 25 years of seniority as of October 1, 2015, the card issued to him in early 2019 should have stated that he had 28 years of seniority.22 The complaint does not allege that issuance of this incorrect card violated the Act. There is no evidence that Dixon had a retaliatory motive when he prepared it, and the record does not establish that Payne had engaged in any protected activity at this point. More than a year and a half would elapse before the election campaign in which Payne criticized Dixon’s perfor- mance as financial secretary. Because of his medical condition, Payne did not work at all during the contract year which began on October 1, 2018 and ended on September 30, 2019. He was entitled to a year’s sen- iority credit for this period of disability. Therefore, according to the calculation method advocated by the General Counsel, a 18 The identification card bears only an expiration date and not a date of issuance. Because the Union customarily issues new cards each January, and because this card had an expiration date of “01/15/2019,” I conclude that the Union issued it in January 2018. 19 Inexplicably, although the identification card issued in January 2018 indicated that Payne had 26 years seniority, it showed him to be in seniority category “AA.” However, under the seniority provision in the collective-bargaining agreement, a person with 26 years seniority is in the “AAA” category. 20 No one has disputed that Payne actually remained disabled. Be- cause of his fall from the crane ladder, he had to undergo surgery three times. 21 Although the Union customarily issues cards each January, the Union’s computer database shows a creation date of February 21, 2019, for this card. Johnny Dixon, who was then the Union’s financial secre- tary, created the card. 22 The card which Dixon issued to Payne on February 21, 2019, al- so departed from the contractual requirements in another way. Alt- hough the card showed Payne as having 26 years seniority, it stated that he was in category “AA.” However, the collective-bargaining agree- ment provides that longshore persons with 26 years seniority are classi- fied “AAA.” card issued to Payne in January 2020 should have stated that he had 29 years of seniority. Payne remained medically disabled through at least the first half of 2020 and did not return to work until August of that year. Thus. based on the seniority board’s determination that Payne had 25 years of seniority in February 2016, 4 years later, it would have grown to 29 years. Nonetheless, while claiming to rely on the seniority board’s determination, Dixon reduced Payne’s seniority to 25 years. Charging Party’s Protected Activity A longshore person’s work requires strenuous activity, lift- ing heavy loads, and sometimes climbing tall ladders on gantry cranes. Running for elected office is sedentary by comparison. Although medically unable to do the arduous work of un- loading cargo, Payne had recovered sufficiently to run for Lo- cal union president in October, November and December 2019. He faced two opponents, the more formidable being the Un- ion’s financial secretary, Johnnie Dixon.23 During his cam- paign, Payne repeatedly criticized Dixon’s work as financial secretary, describing Dixon as “not ready” to head the Union. For example, during a speech a few days before the Decem- ber 8, 2019 election, Payne told the audience that he, Payne, and his daughter had helped Dixon perform his duties as finan- cial secretary. However, there was an exception: In a piece of campaign literature, Payne described Dixon as an “above aver- age” financial secretary, but that was part of an apparent at- tempt to condemn Dixon with faint praise. More specifically, Payne distributed a flyer which included a chart comparing the 3 candidates for Local union president. One row of the chart purported to compare the “notable accom- plishments” of the 3 candidates. It listed Payne’s accomplishes as “Founder of the ILA Ports Council Florida (led to thousands of dockworkers returning to work)” and also referred to results Payne obtained as a negotiator. In the space for Dixon’s “nota- ble accomplishments,” the flyer stated: Best dressed Best looking Finest Has done an above average job as Financial Secretary Very good Ro-Ro Driver The term “ro-ro driver,” in longshore parlance, refers to someone who drives vehicles on or off a vessel when the vehi- cles are cargo. Payne’s testimony indicates that he was trying to tell union members that although Dixon was likable, he did not have the experience necessary to be president of the Local. Payne included a similar argument in a speech he made at a November 30, 2019 campaign event. Payne’s speech criticized both of his opponents. He called the incumbent president, Christopher Roland, a “failed leader” and characterized Dixon as too inexperienced. Payne testified as follows about the 23 Both Payne and Dixon were running against the incumbent union president, Christopher Roland, who was seeking another term in office. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 speech: I was laying out my platform for president and trying to ex- plain to the members why it would be in all of our best inter- ests to elect me as the president. To shorten it down, it was pretty much that the guy that was already there was a failed leader, who had gotten nothing, and under his term as presi- dent, and that Mr. Dixon, although he had potential, he was not ready for the enormity of the position that he was running for. He was a one-term financial secretary whom I had actu- ally been helping to do that job behind the scenes, along with my daughter. And I was just pretty much laying out that even though the guy’s a handsome guy, he’s well-dressed,—you know, don’t be sold on the illusion that he’s anywhere near ready to be president of a local union. Just too much for a young man who hadn’t even been in the local ten years. You know, and I said—I gave him some compliments too. You know, I said I liked him. And I even went as far to say I not just like him, I love him. But he is nowhere near ready to be president. Payne estimated that about 100 people heard his speech. He learned later that Dixon had been one of them. When the election took place on December 8, 2019, Dixon received 244 votes and Payne received 109. Thus, Dixon de- feated Payne by a margin of more than 2 to 1. Evidence of Animus Dixon has admitted that on August 26, 2020, he went into the Union’s computer system, which then showed Payne as having 26 years of seniority, and reduced that number to 25 years. But why? The complaint alleges, but the Respondent denies, that Dixon took this action because Payne had opposed and criticized him during the campaign. To prove that Dixon harbored such hostility, the General Counsel relies on Payne’s testimony about statements Dixon made on 4 different occasions.24 The first of these occurred shortly after the election. Payne testified, in part, as follows: I did congratulate Mr. Dixon, and reiterating the fact that I did not believe he was ready to be president. I told him, but the membership obviously does think so. You beat me and Mr. Roland --. So I just want you to know that I’m here for you. Anything that I can do to help you be the best president this local ever had, I just want you to hear it from me. I’m here for you. Mr. Dixon’s response was, fuck you, buck nigga. Don’t call on me now, congratulating me. For reasons discussed below, I consider Payne’s testimony more reliable than Dixon’s. Crediting Payne, I conclude that Dixon spoke the words which Payne attributed to him. 24 It is customary for a judge’s decision to quote verbatim the words which a witness attributes to a person who took an action allegedly violating the Act, even if such words are highly offensive. When such language is offered as evidence of animus, a paraphrase would hinder a meaningful evaluation of the state of mind which the words arguably revealed. Here, it may be noted that both speaker and hearer are of the same race. At a ceremony on February 9, 2020, Dixon became union president. Payne attended the ceremony and congratulated Dixon afterwards. However, Payne testified, Dixon “again told me to pretty much get out of his face, he had something for me. I got something for you, and you will see.” Dixon did not con- tradict Payne’s testimony on this point and I find that Dixon did tell Payne that he had “something for you and you will see.” Payne described still another instance in which Dixon, angry, made a vague statement suggesting an intent to retaliate. Ac- cording to Payne, in mid-March 2020, Dixon returned a tele- phone call which Payne had made 2 or 3 weeks earlier. Payne said he had been attending a meeting of the Coalition of Black Trade Unionists, an organization to which he belongs, and that Dixon called at about 10:30 p.m., shortly after the meeting had ended. Payne and another longshore person, Lisa Datiste, were cleaning up the meeting room when Dixon’s call came in, and Payne took it on a speakerphone. According to Payne, Dixon said he had attended Payne’s November 30, 2019 rally and heard every word Payne had said about him, including that Payne and his daughter had helped Dixon do his job as financial secretary. Payne testified he told Dixon that he would have said the same thing even if he had known that Dixon was listening: I don’t have any apprehension about speaking the truth. I said I didn’t believe you were ready, and your behavior since win- ning the election kind of confirms in my mind that you’re not ready. And he went right back into the, fuck you, fuck nigga, bitch nigga, and I’m going to show you, and I’m going to this and that, just throwing out a whole bunch of stupid threats. Lisa Datiste, who also had stayed after the meeting to help clean up the room, had been close enough to the speakerphone to hear what Dixon said. She testified she heard Dixon say he was returning Payne’s call: Q. And what else, if anything, Mr. Dixon said to Mr. Payne? A. He said he was—he’s been meaning to talk to him, and Mr. Payne said, about what? And Dixon said Mr. Payne said some stuff during his campaign that he was pissed off about and he felt that Mr. Payne shouldn’t have said that himself, Mr. Payne, himself and his daughter helped him do his work and he wasn’t ready to be president. And, Mr. Payne said to him, you want to talk about the campaign? He said, yes, some stuff you shouldn’t have told nobody about. And Dixon said, if you help, excuse my language, I’m going to be, para- phrasing, if you help a mother fucker from the heart, you shouldn’t have to talk about it. And he went in on Mr. Payne. Q. Okay. What are the words Mr. Dixon used to refer to Mr. Payne? A. He called them a fuck nigger, a mother fucker, a fun boy, a pissy ass nigger and a fuck nigger. He berated him so bad. Myself and Michael25 was in shock. We couldn’t be- lieve this was our classmate, our friend, talking like this. Thus, Datiste’s testimony corroborates Payne’s. However, 25 Charging Party Darryl Payne goes by the nickname “Mike.” INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 11 Dixon testified that he could not remember making such a call: Q. Okay. Do you recall calling Mr. Payne in March of 2020? A. I couldn’t, I couldn’t put a finger on it if I did because most times I spoke to Mr. Payne, it was always about Union business because I would not, you know, stay with him that long at length. Q. Okay. There was some testimony that you used rather foul language in these conversations. What’s your response to that? A. No, that’s not true. Q. You never used language like what was present? A. No. Thus, although Dixon denied using offensive language, he neither squarely denied making the call nor saying “I’m going to show you.” Moreover, Datiste’s account largely corrobo- rates Payne’s.26 Additionally, as will be discussed below, in- consistencies in other parts of Dixon’s testimony raise doubts about his credibility. In these circumstances, I find that Dixon made the statements which Payne attributed to him. According to Payne, Dixon made another vague threat to him in May 2020. Payne testified that while he was at the un- ion hall, he encountered Dixon and greeted him. Payne testi- fied that Dixon replied, “you just wait. You ain’t seen nothing yet. I got something for you.” Payne further testified: He started telling me, you see Mike, I’m not afraid of you. I’m not afraid of anybody. And I said, why do you feel a need to tell me that you’re not afraid of me? I’m not trying to do anything to hurt you, man. What’s your problem? You won the election, and now it’s May, and you’re still talking about the election that you won back in December. I say man, I don’t even like sore losers. So you know damn well I don’t have any time for a sore winner. You won the election man, move on with your life. He said, I’m just letting you know—and I went on and he went on. Dixon did not specifically deny telling Payne, “You ain’t seen nothing yet. I got something for you.” Moreover, for the reasons discussed above, and in view of Dixon’s inconsistent explanations concerning his decision to reduce Payne’s seniori- ty, discussed below, I do not credit Dixon’s testimony when it conflicts with that of another witness. Therefore, I find that Dixon made the statements Payne attributed to him. Dixon’s coarse name calling certainly reveals hostility to Payne, and the fact that he used similar language on different occasions, over a span of weeks, shows the persistence of this 26 Based upon my observations of the witnesses, I conclude that Da- tiste’s testimony is reliable. When asked to describe her relationship with Payne, Datiste testified “We lived together. He’s also former president of our Local, and also the father of my only daughter.” Her use of the past tense, “lived together,” suggests they no longer do so. However, the record does not reveal anything about either the circum- stances of their separation or the present state of their relationship. Therefore, I do not conclude that Datiste’s testimony was biased either for or against the Charging Party. ill will. On both these occasions, the foul epithets served as gift wrapping for seeming threats to Payne that he had “something for you and you will see” and “I’m going to show you. . .” At least 3 months elapsed between the time Dixon made the last of these statements and August 26, 2020, when he changed Payne’s seniority. The Respondent argues that the statements attributed to Dixon are too remote in time to prove that animus influenced his decision to reduce Payne’s seniority. Respond- ent’s brief states: As we have seen, the Union election in this case was held in December of 2019. The Union’s change in the Charging Par- ty’s seniority classification, was not effectuated until some eight months later, in August of 2020. It is difficult to see the causal nexus between the Charging Party’s electioneering and the modification of his seniority status, given the substantial passage of time between the two events. See, NLRB v. Vemco, Inc., 989 F.2d 1468, 1479 (6th Cir. 1993). (Footnote omit- ted.) However, the intensity of Dixon’s profanity suggests its depth and staying power. The fact that Dixon made similar veiled threats on 3 separate occasions, in February, March and May, indicates that his animus had a long halflife. He had also directed profanity at Payne on an even earlier occasion, right after his election in December 2019. This definitely was not animus lasting less than 4 hours. Moreover, Dixon did not have a plausible occasion to change Payne’s seniority until Payne came back to work. When Payne returned in August 2020 to seek referrals through the hiring hall, Dixon acted quickly. Payne’s Return To Work Events shortly before to Dixon’s reduction of Payne’s sen- iority on August 26, 2020, also provide clues about his motiva- tion. Dixon and Payne provide conflicting accounts. In Dix- on’s version, he decided to check on Payne’s seniority in re- sponse to Payne’s request to be credited with 30 or 31 years seniority. Dixon testified: Q. Okay. Do you recall the events around when Mr. Payne returned to work in August 2020? A. Yes. I recall Mr. Payne coming to me and saying, hey listen, I’m getting ready to return to the work force, so I should have—at that time, he said, I should have a 30 or 31 at that time. And it was—and I just said okay, because I’m usu- ally interacting with a lot of different members. Dixon thus is claiming an innocent reason—Payne’s re- quest—for investigating Payne’s seniority. Dixon explained: But before I issue any members’ cards, I always do my due diligence, and research, just to make sure that I’m doing the proper thing, because it’s so easy for a message to get out, and say hey, this guy, he’s an officer, he’s not being fair, he’s not doing the right thing. So I tend to back up all of my actions with documents, or with doing my research. Thus, in Dixon’s version, Payne’s request made it necessary to issue a card stating Payne’s seniority, and if Dixon put the wrong amount of seniority on the card he would open himself to criticism by other union members. Therefore, Dixon further DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 testified, he “reached out to the Pension and Welfare Fund to find out what was the accurate seniority that I should be issu- ing, because he’s returning to the work force.” However, Payne’s testimony about what happened is entirely different. In Payne’s version, the encounter which Dixon de- scribed did not occur. Instead, Payne dealt with the Union’s financial secretary, Terrance Smith. Payne returned from his period of disability, and began seek- ing work through the hiring hall, on August 22, 2020. He used an ID card previously issued to him. This appears to have been the card which, according to the Union’s records, Dixon had issued to him on February 21, 2019. At that time, Dixon was financial secretary. This 18-month-old card was hardly satisfactory. It bore the notation “26 years,” which meant that Payne would have had 26 years seniority as of the beginning of the contract year on October 1, 2018. But the seniority board had determined Payne’s seniority to be 25 years as of October 1, 2015. Using the calculating method described above, this card should have shown 28 years seniority. Additionally, more than a year had elapsed since issuance of the card, and Payne had been disabled the entire year. There- fore, Payne should be using an ID card that showed 29 years seniority. Payne asked Financial Secretary Smith for a new card. Payne testified that he received a call from Financial Secre- tary Smith “to let me know that my new union cards were ready to be picked up.” The next morning, he went to the Union hall and a member of the Union’s board of trustees, Arthur Kenne- dy, gave him an envelope. In the envelope were two identifica- tion cards, each stating that Payne had 25 years of seniority and that he was in the “AA” category. When Kennedy took the stand, he did not describe handing an envelope to Payne. Rather, he testified that Payne asked him to take his card and update it, saying that the card should show he had 29 years of seniority. Kennedy took the card but re- turned it shortly, saying there was nothing he could do about it. Kennedy’s testimony does not contradict Payne’s but in- stead, I believe, focuses on a different part of the same conver- sation. If Kennedy handed Payne an envelope containing ID cards showing that Payne had only 25 years of seniority, it makes sense that Payne, after opening the envelope and looking at the cards, would tell Kennedy that he had 29 years of seniori- ty and ask him to update the card. Likewise, it is plausible that Kennedy would say there was nothing he could do about it. As a member of the Union’s board of trustees he could not undo an action taken by the Un- ion’s president. Moreover, Kennedy testified that only the Union’s president and financial secretary have authority to make changes in a Union member’s seniority. Because of inconsistencies in other parts of Dixon’s testimo- ny, and because it was at times vague, I do not credit it to the extent it conflicts with that of other witnesses. Instead, credit- ing Payne, I find that the hallway conversation with Payne, described by Dixon, did not take place. This finding, that Payne did not tell Dixon that he had 30 or 31 years of seniority, undercuts Dixon’s asserted reason for investigating Payne’s seniority. Moreover, apart from a vague and somewhat self-serving declaration that he liked to perform “due diligence,” Dixon’s testimony does not establish that he routinely checked on the seniority of Union members. Indeed, Dixon could not recall any other specific instance in which he reduced a member’s seniority so it was not a matter of routine for him to do so. That’s hardly surprising. Although the union president is one of the two officials who can access the computer records to generate cards that task ordinarily falls to the Union’s financial secretary. Thus, Dixon, in his previous position as financial secretary, had prepared the card which Payne was trying to update and replace. Now that Dixon was president, the fact that he took it upon himself to prepare Payne’s new card, rather than letting the financial secretary do it as part of his usual job duties, raises a question about his motivation. When asked why he, rather than the financial secretary, prepared Payne’s card, Dixon ex- plained: I’m not certain, but the financial secretary was not there at that time, and I probably was the acting financial secretary, be- cause we had just lost one person. We had some issues within the local, to where our records were not being kept properly. And our district office had to get involved. The vague nature of this answer raises concern. However, the minutes of the Union’s August 11, 2020 executive board meeting include this entry: Fin. Secretary Terrence Smith stated he forgot to transfer money to the locals checking Resulting, causing over $4,000 in over draft fees. However, he is asking not to pay all at once. EB [Executive Board] agreed for Trustees to investi- gate this matter and then come with a report to EB. Pres. Dixon stated he is waiting on the District to contact him with a date for next week to hear complaints from Union members. Dixon’s testimony does not explain how the financial secre- tary’s problems would interfere with performing the routine duty of issuing an updated ID card. However, even assuming that Dixon had a legitimate reason for doing this task, that doesn’t explain why he lowered Payne’s seniority. Dixon had issued Payne’s previous card, showing that Payne had 26 years seniority, so why didn’t he trust his own work? Was it because Payne had run against him for Union president and criticized him during the campaign? How Dixon went about determining Payne’s seniority will reflect on his motivation. Did he go about the process method- ically, or did he pull the number 25 “out of a hat”? Dixon’s Explanations The General Counsel called Dixon as a witness. He testified that he concluded that Payne was entitled to 25 years seniority credit because of the seniority board’s May 20, 2016, which stated that Payne had 25 years seniority: Q. Okay. So, why did you change Mr. Payne’s seniority from 26 years to 25 years on August 26th, 2020? A. I was, I was following the guidelines of, or the determi- nation of what the executive—sorry, not the executive board, but I was following the decision that was made by the seniori- INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 13 ty board. Q. Okay. Are you referring to the 2016 decision of the sen- iority board? A. Yes. That answer made little sense because it simply ignored the fact that more than 4 years had elapsed between the seniority board’s determination and Dixon’s decision to reduce Payne’s seniority. It also ignored the fact that Dixon himself, in his previous position of financial secretary, had issued Payne an ID card showing that Payne had 26 years seniority. As financial secretary, Dixon had been responsible for pre- paring the ID cards for all users of the hiring hall. He knew that “ISSI” computer records provided the best way to calculate a longshore person’s seniority. Indeed, Dixon testified that “the ISSI report is our true seniority record.” However, Dixon admitted that he did not refer to the “ISSI” records before reducing Payne’s seniority. Dixon made this admission when asked about information on the ISSI form: Q. Is that what you’re referring to? A. No. What I was—your question to me was, why did I give the 25 years, and my statement to why I came to 25 years was because I was just specifically looking at the notations from the seniority board, and I did not look at our ISSI report, which gives us an accurate account of every member in the Union’s actual seniority. Q. When did you-- A. And I did not-- Q. --receive this ISSI report? A. I received it all in one packet, all in one packet. They gave me the ISSI, the seniority board records, and they also gave me the two—the original copy of the original LS-208 and also a copy of the altered LS-208. And I just strictly went by the document that came from the Pension and Welfare Fund. I never really paid attention to—I didn’t—I should have looked at the ISSI report, but I just went by the notations from the seniority board. (Italics added.) Thus, Dixon testified both that “the ISSI report is our true seniority record” and that he “never really paid attention” to it when deciding to reduce Payne’s seniority. Those statements, considered together, raise a question concerning Dixon’s moti- vation. There is another reason to be concerned about the accuracy of this account. Dixon testified that he had received the “ISSI” report, the seniority board records and the LS-208 forms “all in one packet” but “strictly went by the document that came from the Pension and welfare Fund.” The portion of Dixon’s testi- mony quoted above does not identify who sent him these doc- uments but at another point, Dixon testified that he received them from Ms. Sellers of the Pension and Benefit Fund office. (At one point, Dixon referred to her as “Carruther Stellers,” then as “Carruther Sellers” and at another point as “Corla Sellers” but from context it appears clear that he was talking about Corliss Sellers, the Pension and Benefit Fund’s office manager.) An email documents that Sellers sent Dixon the documents he described. However, the email is dated September 1, 2020, 5 days after he reduced Payne’s seniority. Thus, it is quite pos- sible that Dixon reduced Payne’s seniority without referring to any relevant documents. Explaining why he decided to check on Payne’s seniority, Dixon had testified, “I always do my due diligence, and re- search, just to make sure that I’m doing the proper thing. . .” However, ignoring “our true seniority record” hardly manifests diligence.27 In this case, the fact that the Respondent’s president did not refer to the ISSI report, the record usually relied upon to calcu- late seniority, calls into question whether he acted in good faith and with honesty of purpose. Ford Motor Co. v. Huffman, above. Perhaps Dixon realized that his initial testimony revealed that he had made no serious attempt to ascertain Payne’s actual seniority before reducing it. That might explain why his later testimony told a different story. In this second version, Dixon described a meeting he claimed to have had with the pension and welfare fund manag- er, Ed Stewart, and the fund’s office manager, Corliss Sellers. Dixon testified as follows immediately after Respondent’s counsel showed him the “ISSI” computer printout, which is in evidence as Respondent’s Exhibit 2: Q. BY MR. BERKOWITZ: what—was the discussion you had with Ed Stewart, the Fund manager regarding Respond- ent’s Exhibit 2? A. Well, both myself and—myself, Ed Stewart and Corliss Sellers, we sat down and we calculated, pulled out the seniori- ty chart, and they did have some other forms to go along with it, as well as the Seniority Board decision. But we pulled out the seniority table, and we went over it. We calculated from I believe it was 1991, his first year to qualify, all the way, all the way out to the 2017-2018 calculation, the 2017-2018 en- try on the ISSI Form. (Italics added.) Because the “ISSI” printout is tabular and includes the in- formation needed to calculate Payne’s seniority, and because Dixon was answering a question about the discussion “regard- ing Respondent’s Exhibit 2,” it appears clear that he was refer- ring to the “ISSI” when he used the terms “seniority chart” or “seniority table.” Indeed, in the italicized portion of the testi- mony quoted above, Dixon specifically referred to the “ISSI form.” However, that testimony directly contradicts Dixon’s earlier testimony that “I should have looked at the ISSI report, 27 In labor law, “due diligence” is not a term of art concerning an exclusive bargaining representative’s duty to bargaining unit members. Rather, when taking actions affecting unit employees’ employment status, the union must act on the basis of relevant considerations and not on considerations that are arbitrary, discriminatory, or in bad faith. See, e.g., Reading Anthracite Co., 326 NLRB 1370 (1998). An exclu- sive bargaining representative’s statutory obligation requires it to “make an honest effort to serve the interests of all of those members, without hostility to any.” Ford Motor Co. v. Huffman, 345 U.S. 330, 337 (1953). However, so long as the union acts in “complete good faith and honesty of purpose” it enjoys a wide range of reasonableness in exercising its discretion. Id. at 338. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 but I just went by the notations from the seniority board.” This version treats Dixon’s earlier testimony as a kind of first draft, to be wadded up and thrown in the wastebasket. In the earlier version Dixon ignored the “ISSI report” even though it was “our true seniority record.” In the latter version, Dixon and two others scrutinized the “ISSI” and “calculated” Payne’s seniority, going all the way back to 1991. Because this latter version so clearly contradicts the former, and because it improves upon the former in an obviously self- serving way, its believability depends upon corroboration. If Dixon’s testimony is accurate, such corroboration can be ac- complished easily by calling to the witness stand the other two people who helped him with the calculations. However, Pension and Benefit Fund Manager Stewart did not testify. The fund’s office manager, Corliss Sellers, did take the stand, but she did not describe any meeting with Dixon and Stewart. She testified that Stewart and Dixon sometimes met, but it was in Stewart’s office. She did not attend such meet- ings, and did not know what was discussed. Sellers further testified: Q. Okay. Did you instruct Johnnie Dixon in any way with respect to Mr. Payne’s seniority? A. No, I—no. I don’t—I couldn’t determine that. Q. To your knowledge, has anyone in the fund’s office ever instructed anyone at Local 1526 to do anything to Mr. Payne’s seniority? A. No, not to my knowledge. Q. In your 30 plus years of experience as an office manager for the fund’s office, has your office ever instructed any ILA local to change the overall seniority of any individual? A. No. The Pension and Benefit Fund is separate from the Respond- ent and Sellers has no obvious interest in the outcome of this case. The record also discloses no reason why her testimony would be biased in any direction. She answered carefully and responsively and I have confidence that her testimony is trust- worthy. Moreover, there is an additional reason to doubt Dixon’s tes- timony that he met with Steward and Corliss. Sometime after Payne learned about and protested the lowering of his seniority, Dixon sent him an undated letter purporting to explain the re- duction. That letter stated: It is my understanding that you are questioning your seniority status, which was previously confirmed, on May 20, 2016, by the Southeast Florida Ports Joint Seniority Board of Trustees. I have consulted with our local attorney, and I have been in- formed that seniority status, for our members, is governed by Article 17 of the applicable collective-bargaining agreement. In accordance with that collective-bargaining agreement, all members, receiving job assignments, out of and through Southeast Florida Ports, are classified in April of each calen- dar year, according to their previous work record. Members are assigned work, based on their respective job classifica- tions. Since it was previously held, on May 20, 2016, by the Southeast Florida Ports Joint Seniority Board of Trustees, that you have 25 years of seniority, you are designated in the “AA” classification, which is the second highest possible cat- egory of seniority. You will not attain the “AAA” classifica- tion until you reach 26 years of credited seniority. Based on the “AA” classification for your seniority status, you will be given second preference, for work assignments, within your respective gang. As previously stated above, since you have already been awarded the maximum number of years you are entitled to based on the Southeast Florida Ports Joint Seniority Board of Trustees, no additional credit for seniority can be awarded to you at this time. Therefore, any appeal of the prior decision of the Southeast Florida Ports Joint Seniority Board of Trustees, would not be warranted, and in fact, according to our records, your appeal was denied on May 23, 2016, because you had already re- ceived the maximum number of years, to which you were en- titled. According to our review of the pertinent facts, no additional action can be taken, on your current seniority status. Nowhere in this letter does Dixon refer to having any meet- ing with Ed Stewart or Corliss Sellers or anyone else from the pension and welfare fund. Indeed, the letter doesn’t mention Dixon having a meeting with anyone. If such a meeting had occurred, Dixon likely would have mentioned it in the letter rather than accepting sole responsibility for his action. Dixon also did not mention having a meeting with Stewart and Sellers when he gave still another explanation for his deci- sion to lower Payne’s seniority. Dixon did not offer this third explanation when he testified but rather at a union meeting on October 20, 2020. Dixon’s Third Explanation At this meeting, union members could come to a microphone and raise questions. Payne did so, protesting Dixon’s reduction of his seniority. According to Payne, “Dixon responded to me, in front of the membership, that he did nothing, that Ms. Sellers called him. . .and instructed him to take that seniority off of my card, because it should have been taken off by the past two presidents, and since they did not do it, it’s—falls into his lap and he has to do it.” Payne called Dixon a liar and the conversation became heat- ed. All witnesses agree that Dixon directed that Payne’s mi- crophone be turned off. However, all witnesses do not agree about what Dixon said. Several witnesses corroborated Payne. One of them was Un- ion Member Torrance Little, whom Payne called to the stand. When Payne asked him to describe what happened, Little testi- fied: President Dixon explained to you [Payne] that he was told by a young lady, Ms. Sellers, who worked for the—in Miami, to take the seniority away from you because you got it illegally by falsifying information. Mr. Dixon continued to explain to us and you that the previous president, President Wilkerson along with President—I mean Gus Wilkinson that is, along with President Chris Roland knew that they should have taken the seniority away from you but never did and he as president, INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 15 that responsibility has fallen in his lap, and that’s why he’s doing what he was supposed to do as president. Payne also called Tony Williams, another union member who attended the October 2020 meeting. Williams testified: Q. Do you recall what he—what [Dixon’s] answer was as to why he stated that he had removed the 4 years from my seniority card? A. Yeah, he was—and he was instructed to by someone that was at the Benefits Office. Q. Do you recall if that person was a lady or a man? A. It was—I think it was Ms. Sellers. It was a man— woman, I’m sorry. Q. And the name was Ms. Sellers? A. Yes. A third witness called by Payne largely corroborated the tes- timony of Payne and Little. The major difference is that this witness, Union Member Rodney Banner, did not identify Sellers as the person who supposedly gave the instruction to reduce Payne’s seniority, but only referred to her as “the lady.” Banner gave the following testimony: Q. And to the best of your recollection, can you tell the Court how that exchange went? A. Yes. When he [Dixon] gave you [Payne] the floor, you said to the members that you wanted to address your 4 years of seniority being taken off your card. And Johnnie Dixon stated that he was—he got a call from the folks, the grievance board or whatever, from the office in Miami, and the lady told him that, told him that Mr. Payne had 4 years seniority that were deleted, and that he should take it off the card, take it off your card. He went onto, he went on to state what you, what you—he went on and stated that she required -- she told him that needed to take it off your card. Longshore person Lisa Datiste, who attended the October 20, 2020 meeting, provided a similar account except as to who initiated the call between Dixon and the person at the Pension and Welfare Benefit Fund office. Although Banner quoted Dixon as saying he, Dixon, received the call, Datiste remem- bered Dixon stating that he had placed it. Datiste testified: Q. BY MS. MORALES: All right. Lisa, please can you state again for the record, what Mr. Dixon said during that meeting about the seniority of Mr. Payne please? A. He said during the meeting that Mr. Payne had called him about his 31 years seniority he should have on his Union card. He said that prompted him to call the lady at the benefit office and that’s when she told him to take away Mr. Payne’s seniority. Dixon’s own testimony indicates that he initiated the contact with the pension and benefit fund office,28 but Dixon did not 28 Dixon first testified that he “reached out” to the seniority board but later testified that he contacted the Pension and Welfare Fund. However, I believe this conflation of the seniority board with the Pen- testify that either Sellers or anyone else instructed him to lower Payne’s seniority. Rather, the witnesses quoted above attribut- ed such a statement to him. However, not all witnesses who attended the October 20, 2020 meeting corroborated this testi- mony. The Respondent called Union Executive Board member Ar- thur Kennedy, who testified, among other matters, about the October 20, 2020 meeting, which he had attended. Kennedy recalled that Payne came up to a microphone and had an ex- change with Dixon which got headed and that Dixon asked for Payne’s microphone to be shut off. Kennedy further testified: Q. Okay. But can you tell us any more details specifically what the exchange was between Mr. Payne and Mr. Dixon? First what Mr. Payne said and Mr. Dixon’s response and so forth? A. Honestly I can’t tell you exactly verbatim how that con- versation went. I just know that the conversation got heated and they were referencing a phone call. Mike Payne was ref- erencing a phone call and I remember that Mike Payne said you want me to tell them what you said on this phone call and President Dixon said, go ahead and tell them. That exchange happened a couple of times. You want me to tell him. And President Dixon was like go ahead and tell the membership what that phone call was about. And that’s the extent basical- ly I can remember. Q. At any time during this conversation did Mr. Dixon in- dicate that he had gotten instructions from someone to change Mr. Payne’s seniority? Does that ring a bell at all? A. It doesn’t ring a bell. All I know is I remember—I just remember that phone call being referenced and you did, like the membership, telling them that this stuff came from the Seniority Board concerning the document, the altered docu- ment, just giving the membership, being transparent with the membership as to what happened as far as his seniority was concerned. Q. Okay. Who made that statement? A. Mr. Dixon. Mr. Dixon. Another witness called by the Respondent, Evrin Bynes, Jr., gave brief testimony about the meeting, describing colloquy between Dixon and Payne which culminated in Dixon ordering that Payne’s microphone be turned off. However, Bynes did not give any testimony concerning what Dixon said. When Dixon took the stand, he described at some length the colloquy with Payne but his testimony does not reveal what explanation he gave, if any, for his action reducing Payne’s seniority. Dixon’s testimony therefore does not squarely deny that he said someone instructed him to lower Payne’s seniority. Arthur Kennedy’s testimony that such a statement did not “ring a bell” does not constitute a denial that Dixon made it. Thus, no testimony flatly contradicts that of the 5 witnesses who attributed to Dixon a statement that he had received in- structions to reduce Payne’s seniority. sion and Welfare Fund was unintentional and it does not affect my assessment of Dixon’s credibility as a witness. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 Moreover, these 5 witnesses gave strong, unequivocal testi- mony on this point. Three of them (Payne, Little and Williams) quoted Dixon as saying that Corliss Sellers had given him the instruction.29 The other two, Banner and Datiste, referred to the person as “the lady” or “the lady at the benefits office.” The fact that two of the witnesses could not recall the name of the person Dixon mentioned does not detract from the weight of their testimony as corroborating evidence. Based on the consistent testimony of these 5 witnesses, which I credit, I find that Dixon did state that Corliss Sellers told him to take seniority off Payne’s card. Moreover, based on Sellers’ credited testimony, noting the absence of any corrobo- rating evidence that anyone instructed Dixon to change Payne’s seniority, and also noting that when Dixon testified, under pen- alty of perjury, he made no such claim. I find that Dixon’s statement at the meeting was untrue. He did not receive in- structions from anyone to change Payne’s seniority. The strong corroboration leaves little doubt that Dixon made the statement he denied. Therefore, this denial raises further concerns about the reliability of Dixon’s testimony. As noted above, at this October 20, 2020 meeting Dixon did not mention having a meeting with Stewart and Sellers at which they all referred to the relevant documents and calculated Payne’s seniority. The October 20, 2020 meeting was less than 2 months after Dixon lowered Payne’s seniority. Presumably, Dixon also wrote the undated letter he sent to Payne (which was quoted in full above) not long after he prepared the card which stated Payne had 25 years seniority. However, neither at the October 20, 2020 meeting nor in the letter did Dixon claim that he, Stewart and Sellers had met and calculated Payne’s seniority. If Dixon had, in fact, gotten together with Stewart and Sellers to calculate Payne’s seniority, Dixon presumably would have said so both in the October 20, 2020 meeting and in his letter to Payne. He did not. For that reason, and because no witness corroborated his testimony about a meeting with Sellers and Stewart, I must regard such a supposed meeting as chimeri- cal. Instead, I find that Dixon acted alone when he reduced Payne’s seniority. Having determined that he acted alone, I now turn to what he did and why. Dixon’s Good Faith As noted above, in considering whether a union has breached its duty of fair representation, the union enjoys a wide range of reasonableness in exercising its discretion, so long as it acts in complete good faith and with honesty of purpose. Ford Motor Co. v. Huffman, above; Union de Obreros de Cemento Me- zelado (Betteroads Asphalt Corp.), 336 NLRB 972 (2001). Just as Dixon’s explanations provide information relevant to good faith and honesty, so does the actual method he followed to reach the conclusion that Payne had 25 years seniority. 29 Williams’ testimony indicates some uncertainty concerning the name of the person Dixon identified—Williams said he thought it was Sellers—but no uncertainty that Dixon said someone had given him the instruction. Dixon’s claim, that he relied upon the seniority board’s 2016 determination, may be tested against his actions. Did Dixon use the seniority board’s determination in the manner a reason- ably prudent union official would use it, or did he just seize upon the seniority board’s determination as a convenient ex- cuse? His actions will tell. Above, this decision described, at perhaps tedious length, how Payne’s seniority increased after 2016 if we start with, and accept as correct, the seniority board’s determination that he had 25 years of seniority during the 2015–2016 contract year. In each of the years after that, Payne was entitled to a seniority credit either because he worked the requisite number of hours or—after his injury in October 2016—because he was disabled. Accepting that Payne had 25 years seniority at the start of the 2015–2016 contract year on October 1, 2015. Payne only had to work 700 hours during that contract year to roll his seniority up to 26 years. In fact, Payne worked far more than that minimum but, nonetheless, Dixon did not give him seniority credit. Why not? Examining Dixon, the General Counsel tried to find out. Q. But you used the seniority board determination of May 20th, 2016? A. Yes, that’s correct. I acknowledge that, yes. Q. And then, as you can see here, for the 2015 to 2016 work year, Mr. Payne worked 3690 hours? A. Right. Q. So he would have gone up to 26 years? A. No, not—no. Dixon offered no believable explanation for why he failed to give Payne credit for the 2015–2016 work. Instead, Dixon said that he, Dixon, had not been in office at that time. But Dixon certainly was looking at Payne’s work record when he gave the testimony quoted above. In fact, he agreed that Payne had worked 3690 hours during the 2015/2016 contract year. Even then, he continued to deny that Payne had earned an additional year of seniority but did not offer any real explanation for the denial. This, too, affects his credibility as a witness. The General Counsel also asked Dixon about another in- stance in which Payne clearly should have received seniority credit. The “ISSI” printout which is in evidence as Respond- ent’s Exhibit 2 bears the handprinted letters “WC” in the spaces beneath contract years 2016/2017 and 2017/2018, signifying that Payne was on workers’ compensation during this time. Under the collective-bargaining agreement, a longshore person earns seniority credit when medically disabled. Dixon admitted that Payne was entitled to seniority credit for those contract years: Q. Okay. So, according to the Pension and Welfare Fund he, Mr. Payne is also entitled to Workers’ Compensation credit for the 2017 and 2018 years, correct? A. Yes. And it’s on that—and it’s, reflects on the ISSI re- port. If, as Dixon admitted, the ISSI report showed that Payne should have received credit for 2016/2017 and 2017/2018, why didn’t he add 2 years to Payne’s seniority? The surprising an- swer is that Dixon did not refer to the ISSI report. As noted INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 17 above, he testified “I should have looked at the ISSI report, but I just went by the notations from the seniority board.” Was Dixon’s failure to check the most relevant record some- thing more than mere negligence which, by itself, does not breach the duty of fair representation? Was this failure a mani- festation of something less than good faith? Before reaching those questions, one other possibility should be explored. Two of the Respondent’s affirmative defenses, discussed be- low, are based on the fact that the seniority board relied on an altered LS-208 workers compensation form when it determined Payne’s seniority, resulting in Payne receiving 3 or 4 more years of seniority than he really had earned. Could Dixon’s action on August 26, 2020, reducing Payne’s seniority to 25 years have been a good-faith attempt to correct the seniority board’s mistake?30 That explanation would have some plausibility. Although Payne’s trial resulted in an acquittal, the verdict would not dis- pel entirely the impression created by his arrest and prosecu- tion. Moreover, regardless of who altered the LS-208 form, the tampering resulted in the seniority board giving Payne credits he had not earned, allowing him to cut in line ahead of some other job seekers. As union president, Dixon had a legitimate interest in making sure all users received fair treatment. However, there is a problem with any argument that Dixon was trying to correct the seniority board’s mistake. Dixon testi- fied that he did not know about the seniority board’s error at the time he reduced Payne’s seniority: Q. BY MS. LEONARD: On May 20th, 2016, the seniority board determined that Mr. Payne’s seniority was 25 years? A. Right, right. And it wasn’t—the 25 years is not in line with this accrued seniority for 2016, 20—year 2015–2016. So that was a mistake on the seniority board, that I think ei- ther—I didn’t discover it at time. I just followed, I just fol- lowed their ruling, so he actually had really—22 years. (Ital- ics added.) Dixon’s testimony that he did not know about the seniority board’s mistake rules out the possibility that a desire to correct the error motivated his decision to change Payne’s seniority. In view of the various problems with Dixon’s testimony, I have not credited those portions of it which conflict with that of other witnesses. However, no one contradicted his testimony that he did not know about the seniority board’s mistake when he changed Payne’s seniority. Still, I understand it narrowly, to mean only that he was un- aware the seniority board had relied on the altered LS-208 forms. Dixon did not deny knowing that federal prosecutors had accused Payne of altering the form and that Payne had been found not guilty after a 2-week trial. The indictment and trial had raised suspicions about Payne 30 Should the Respondent be able to prove that reducing Payne’s seniority was Dixon’s good–faith attempt, based on rational considera- tions, to correct a problem affecting the Respondent’s ability effectively to represent all of the bargaining unit, it would constitute a defense to the allegation that it breached its duty of fair representation. Machinists District 70 (Spirit Aerosystem), 363 NLRB 1599 fn. 3 (2016). which his acquittal did not extinguish. Payne was the one per- son who obviously would stand to gain from the altered LS-208 form. Understandably, some union members would not accept a jury’s verdict of not guilty beyond a reasonable doubt as proof of Payne’s actual innocence. For example, Union mem- ber Vincent Benton testified as follows: Q. Okay. And at some point, did your relationship with Mr. Payne in terms of seniority change or become different or what? A. Absolutely. It changed when he—he was the president once upon a time. And once he got off his presidency, that’s when the years changed. When he came out of the office of being the president, when he came back on the floor, coming to go to work, he leap-frogged probably like 4 years ahead of me, and everybody was stunned like, wow, how did that hap- pen? And with our seniority system, there’s no way you can leap frog that many years unless another person who stop working or happen to go to, you know, get out hurt or go to jail, but you have to have proper documentation when you re- turn to work in order to get the years that you [claim] that’s supposed to be due to you. Otherwise, if not that, you don’t get the years. (Italics added.) Benton testified that he had greater seniority than Payne be- fore Payne took office as union president, “but when he came out of his presidency, he took the years, he added them onto himself. He gave himself the years.” Although union members elected Payne president in 2007, it appears that he took office early in 2008 and left office three years later. During his term in office, he worked to establish the seniority board. At about the time Payne left office, the newly–created seniority board granted him 4 years of seniority credit. So, even if Dixon and other union members did not know that the seniority board had relied on the altered LS-209 form, they might well have suspected that some sort of shady dealing had taken place. Psychologically, the grand jury’s later indictment of Payne would confirm those suspicions. News reports of Payne’s trial also likely would have this effect. Unlike the trial jurors who heard all the testimony, including the cross-examinations, union members would receive only sketchy, secondhand accounts which would be more likely to reinforce their suspicions. In other words, some union members likely thought Payne had committed a crime and gotten away with it. The fact that Dixon defeated Payne by more than 2 to 1 in the 2019 election suggests that a considerable number viewed him with distaste and believed that he had been credited with more seniority than he deserved. Did Dixon lower Payne’s seniority because he felt Payne had obtained it dishonestly, to the detriment of other union mem- bers, or did Dixon act because Payne had criticized him during the election campaign? If both motives were present, would Dixon still have done the deed if Payne had not been a candi- date and instead had kept his mouth shut? Those questions will be considered below. ANALYSIS Detective work in an unfair labor practice case often focuses DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 on the “Why” more than the “Who” and “What.” Here for example, the Respondent admits that its president lowered Payne’s seniority. The legality depends upon why. The General Counsel has offered two different ways of ana- lyzing the Union’s action. In either way, the “Why” plays a pivotal role in determining lawfulness. One analytical path considers whether the Union’s action was a sin—or, rather, an unfair labor practice—of omission. Did the Union fail to do something it had a duty to do? When employees select a union as exclusive bargaining rep- resentative, the law gives it authority to compel the employer to bargain in good faith. Similarly, the union can require the em- ployer to divulge information it needs to represent bargaining unit employees. However, this power comes with a corre- sponding duty not to abuse it. An exclusive bargaining representative has a duty to repre- sent all employees in a bargaining unit. This obligation re- quires it “to make an honest effort to serve the interests of all of those members, without hostility to any.” Ford Motor Co. v. Huffman, 345 U.S. 330, 337 (1953), citing Steele v. Louisville & N.R. Co., 323 U.S. 192, 198 (1944). Thus, the “Why” of Union President Dixon’s action matters. An action which might be lawful if taken in an honest effort to serve the whole bargaining unit crosses a line when motivated by hostility. The Supreme Court first stated this principle—that an exclu- sive bargaining representative owes a duty to the employees in the unit it represents—in a case not involving the Act which the Board enforces. Steele v. Louisville & N.R. Co., above. The Court later extended it to unions representing employees cov- ered by the Act. Thus, the principle that an exclusive bargain- ing representative has a duty of fair representation was born in court and lives there. Its existence doesn’t depend on the Act. However, a very similar principle emerges from the Act it- self, because this law empowers employees to select an exclu- sive bargaining representative.31 29 U.S.C. Section 159(a) gives such a union special status and authority, and also prohibits unions from engaging in certain conduct.32 In general, Section 31 Sec. 9(a) of the Act states: Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employ- ees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of em- ployment: Provided, That any individual employee or a group of em- ployees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the interven- tion of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining repre- sentative has been given opportunity to be present at such adjustment. 32 They include Sec. 8(b)(1)(A) and 8(b)(2), which the present com- plaint alleges the Respondent violated. Sec. 8(b)(1)(A) makes it unlawful for a labor organization “to re- strain or coerce. . .employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisi- tion or retention of membership therein. . .” 29 U.S.C. Section 158(b)(1)(A). 8(a)(3) of the Act prohibits an employer from encouraging or discouraging membership in any labor organization by discrim- ination in regard to hire or tenure of employment or any term or condition of employment. See 29 U.S.C. § 158(a)(3). In prec- edents issued over a period of 6 decades, the Board has defined how this principle applies in various situations. In general, an exclusive bargaining representative breaches the duty when its conduct towards such an employee is arbi- trary, discriminatory or in bad faith. However, mere negligence does not breach the duty. See, e.g., Plumbers Local 342 (Con- tra Costa Electric), 329 NLRB 688 (1999), enf. denied sub nom. Jacoby v. NLRB, 233 F.3d 611 (D.C. Cir. 2000). Retaliation against an employee because he criticized a un- ion official does breach the duty and violate the Act. The Board long has held that “an employee’s right to engage in intraunion activities in opposition to the incumbent leadership of his union is concerted activity protected by Section 7” of the Act. Steelworkers Local 1397 (U.S. Steel Corp.), 240 NLRB 848, 849 (1979); see also Laborers Local 836 (Corbet Con- struction), 307 NLRB 801, 803 (1992). Indeed, retaliation against an employee is unlawful even if it is in response to something someone else said. In Laborers’ International Union of North America, Local Union No. 91 (Scrufari Construction Co.), 368 NLRB No. 40 (2019), the Board found that a union breached its duty of fair representa- tion by discriminating against an employee because the em- ployee’s brother had criticized union leadership. However, although the Act has made the Board the “traffic cop” in the relationship between unions and employers, it has not empowered the Board to regulate strictly internal union matters. This limitation affects the scope of the duty of fair representation which emerges from the Act and which the Board enforces. To violate the Act, the union’s conduct must either (1) impair the employment relationship, (2) impair access to Board processes, (3) pertain to unacceptable methods of union coercion such as physical violence, or (4) otherwise im- pair policies imbedded in the Act. Laborers’ International Union of North America, Local Union No. 91 (Council of Utili- ty Contractors, Inc. and Various Other Employers), 365 NLRB No 28 ((2017), citing Office Employees Local 251 (Sandia National Laboratories), 331 NLRB 1417 (2000). The allegations in this case fall within the first category. The collective-bargaining agreement establishes a referral system which, in practice, offers greater employment opportunities to job seekers with the most seniority. By reducing Payne’s sen- iority, the Respondent diminished his opportunities to be re- ferred to work.33 Such a diminution constitutes a cognizable Sec. 8(b)(2) of the Act makes it unlawful for a labor organization “to cause or attempt to cause an employer to discriminate against an em- ployee in violation of subsection (a)(3). . .or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.” 29 U.S.C. Sec. 158(b)(2). 33 The referral system may be likened to job seekers standing single file in a line leading up to a dispatcher who has a limited number of INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 19 adverse employment action. See, e.g., Laborers Local 91 (Council of Utility Contractors, Inc.), 365 NLRB No. 28 (2017). Thus, the alleged conduct falls within the Board’s authority and it is appropriate to consider the motivation of Respondent’s President Dixon when he reduced Payne’s seniority. In consid- ering whether Dixon made an “honest effort to serve the inter- ests of all of those members, without hostility to any” we may start by asking “well, what was he trying to do?” That is, what interest of the bargaining unit members was he trying to serve? Even assuming for the moment that it fell within his respon- sibility to correct a seniority board error, Dixon wasn’t trying to do so. He testified he was unaware that the seniority board had made an error. Presumably, the union president would have a legitimate in- terest in making sure all users of the hiring hall had the correct seniority so that the referral system operated fairly. Thus, Dix- on referred to “doing our due diligence to make sure things are in line.” Yet Dixon did not refer to the ISSI form which provided year-by-year information on the days Payne had worked. Dix- on testified that this form was “our true seniority file” and that “our ISSI files is, that’s what we utilize for our true seniority within the Union.” It is difficult to conclude that Dixon made an “honest effort” to serve the interests of all the Union’s members when he ig- nored the document “we utilize for our true seniority within the Union.” Moreover, Dixon ignored not only the ISSI report but also the previous calculation of Payne’s seniority which resulted in issuance of an ID card showing Payne had 26 years of seniori- ty. Dixon, in his previous capacity as financial secretary, had been responsible for issuing this card, but he never explained why he decided the seniority shown on the card was in error. According to Dixon, Payne claimed to have 30 or 31 years of seniority. However, Dixon did not contact Payne before issu- ing him a card stating that Payne had 25 years of seniority. Likewise, nothing in the record suggests that Dixon ever asked Payne for specific information concerning his seniority. Additionally, Dixon offered contradictory explanations about how he arrived at the conclusion that Payne had 25 years sen- iority. For these reasons, I conclude that he was not making an honest effort to serve the interests of the bargaining unit. More than once, Dixon peppered Payne with vulgar epithets and told him “I’m going to show you. . .” and “You ain’t seen nothing yet. I got something for you.” On one of these occasions, Dixon also told Payne that he had attended a rally and heard everything Payne said. At the rally, Payne had criticized Dixon’s performance as the Union’s fi- nancial secretary. Based on this evidence, I find that Dixon did not change openings to fill. Each job seeker’s seniority determines his position in line, with the job seeker having greatest seniority standing in front of the dispatcher and the person with least seniority at the tail end of the line. Those at the front of the line have a greater chance of receiving one of the limited number of referrals than do job seekers behind them. Payne’s seniority in an honest effort to serve the interests of the bargaining unit but rather did so because he was angry that Payne had criticized him. A union violates its duty of fair rep- resentation if its action is motivated by ill will or other invidi- ous considerations. See, e.g., Union de Obreros de Cemento Mezelado (Betteroads Asphalt Corp.), 336 NLRB 972 (2001), citing Bottle Blowers Local 106 (Owens-Illinois, Inc.), 240 NLRB 324 (1979).34 Based on the analysis above, I conclude that the Respondent breached its duty of fair representation. Further, I conclude that the Respondent thereby violated Sections 8(b)(1)(A) and 8(b)(2) of the Act. A second, separate method of analysis follows the frame- work set forth by the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). In this seminal case, the respondent was an employer. Accordingly, the Board described the new analytical framework in terms of employers and antiunion animus. How- ever, the same step-by-step process, with slight tweaks to the language, also can guide the analysis in appropriate cases in- volving union respondents. See, e.g., Truck Drivers, Chauf- feurs and Helpers Local Union No. 100 (Beta Productions, LLC), 370 NLRB No. 36 (2020). Just as the Wright Line framework provides a method of de- termining the role antiunion animus played in an employer’s determination to discipline or discharge an employee, it offers similar illumination when the focus is not hostility about union activity but rather hostility occasioned by other protected ac- tivity, such as Payne’s criticism of Dixon’s performance as financial secretary. Under the Wright Line framework, the General Counsel has the initial burden of establishing that pro- tected activity was a motivating factor in a respondent’s deci- sion to take action against an employee. (Typically, but not always, the employee who suffered the adverse employment action is the one who engaged in the protected activity.) The General Counsel meets this initial burden by proving that (1) an employee or employees engaged in protected activi- ty, (2) that the respondent knew about this protected activity and (3) that the respondent bore animus because of it. See Willamette Industries, 341 NLRB 560, 562 (2004) (citations omitted). If the General Counsel makes this initial showing, the burden of presenting evidence then shifts to the respondent to prove, as an affirmative defense, that it would have taken the same action even in the absence of protected activity. Id. at 563; Manno Electric, 321 NLRB 278, 280 fn. 12 (1996). See El Paso Electric Co., 350 NLRB No. 014 (2007). The Act protects a union member’s right to criticize incum- 34 It should also be noted that a union may violate Sec. 8(b)(1)(A) and (2) by deviating from its hiring hall procedures even in the absence of a specific discriminatory intent. See, e.g., Sheet Metal Workers Local 19, 321 NLRB 1147 (1996), citing Electrical Workers Local 211 (At- lantic Division NECA), 280 NLRB 85, 8687 (1986). The present case does not precisely involve a deviation from referral procedures but from how the Union ordinarily calculates the seniority awarded to each hiring hall registrant. In any event, the present evidence of hostility and discriminatory intent makes it unnecessary to rely on Sheet Metal Workers Local 19. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 bent union officials. Steelworkers Local 1397 (U.S. Steel Corp.), above. During the 2019 election campaign, Payne told other Union members that he and his daughter helped Dixon perform his duties, which suggested that Dixon struggled to do so by himself. Referring to Dixon, Payne also told union mem- bers they should not “be sold on the illusion that he’s anywhere near ready to be president of a local union.” Payne made other statements, described above, to the same effect. Therefore, I conclude that the General Counsel has satis- fied the requirement of proving protected activity. The General Counsel also has met the second requirement, showing that the Respondent knew about Payne’s protected activity. Obviously, Payne sought to communicate his criti- cisms of Dixon to as many union members as possible. He was, after all, campaigning against Dixon for the Union’s high- est office. Additionally, as discussed above, credited testimony estab- lishes that Dixon told Payne that he had heard every word of a speech Payne gave to fellow union members on November 30, 2019. Dixon made this statement in a telephone call to Payne in mid-March 2020 and specifically mentioned Payne’s state- ment that he and his daughter helped Dixon perform his duties as financial secretary. Therefore, I conclude that the General Counsel has proven that Dixon had knowledge of Payne’s pro- tected activity. Thus, she has carried the second part of her initial Wright Line burden. Third, the General Counsel must present evidence of animus, that is, of hostility arising from Payne’s protected activity. The evidence goes beyond proving that Dixon came armed with a weapons grade vocabulary. Dixon told Payne that he had “heard every word” Payne said during the November 30, 2019 campaign event. Payne credibly quoted Dixon saying “I heard you when you said that I wasn’t ready. I heard you when you told the members how you and your daughter had helped me do the financial secretary’s job during my term as financial secre- tary.” Payne’s testimony, which I credit, also establishes that Dixon said, “I’m going to show you.” Less dramatic, but still significant, is a statement Dixon made on February 9, 2020, after his inauguration ceremony when Payne congratulated him. Payne testified that Dixon “told me to pretty much get out of his face, he had something for me. I got something for you, and you will see.” This statement, in context, not only manifests animus but also indi- cates an intention to retaliate. Payne’s credited testimony also establishes that in May 2020 Dixon said to him, “You ain’t seen nothing yet. I got some- thing for you.” This statement, considered together with Dix- on’s earlier statements to Payne discussed above, reveal that Dixon’s animus towards Payne was not transient but persisted for months. The also establish a causal connection, a nexus, between the hostility and the allegedly violative act. Based on Dixon’s various statements, quoted above, I conclude that he harbored animus against Payne because of Payne’s protected activities. In sum, I conclude that the General Counsel has established all elements required to carry the government’s initial burden, thereby shifting the burden of proceeding to the Respondent. In effect, the General Counsel has raised a presumption that the Respondent acted unlawfully when its president reduced Payne’s seniority. The Respondent will be found to have committed an unfair labor practice unless it can rebut that pre- sumption. However, under the Wright Line framework, a respondent that offers a pretextual reason for its action thereby forfeits the opportunity to rebut the General Counsel’s case. As the Board stated in Tidewater Construction Corp., 341 NLRB 456 (2004), it has long applied a maxim first articulated by the Ninth Cir- cuit in Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (1966), and adopted by the Board in its Wright Line decision. That maxim states: If [a trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal - an unlawful motive - at least where . . . the surrounding facts tend to reinforce that inference. 341 NLRB at 458, citing Shattuck Denn, 362 F.2d at 470. In the present case, the General Counsel argues that the Respond- ent’s asserted reason is pretextual and, therefore, the Respond- ent has forfeited the opportunity to rebut the presumption that its motive was unlawful. Substantial evidence supports the General Counsel’s argument. When Respondent’s President Dixon testified, he gave two inconsistent descriptions of how he came to conclude that Payne had 25 years of seniority. In one version, he met with two individuals from the Benefits and Pension Fund and they did the calculations during this meeting. In the other version, Dixon made the determination himself based on documents he had received. This contradictory testimony certainly suggests pretext. However, this particular testimony concerns where and how Dixon reached a conclusion about Payne’s seniority rather than the decision to reduce that seniority. Strictly speaking, alt- hough it raises suspicions, the testimony does not amount to a false reason for the decision itself and cannot serve to conceal a true reason for the decision. However, Dixon also testified that he investigated Payne’s seniority after Payne told him that he, Payne, was returning to work and had 30 or 31 years of seniority. Based on Payne’s credited testimony, I have found that Payne did not make the statement Dixon attributed to him. Therefore, I conclude that Dixon’s asserted reason for beginning the investigation was pretextual. Moreover, Dixon also claimed that he was simply doing “due diligence.” He testified that any time a member was out of work “for an extensive–an incredible amount of time,” the Union “should always do a due diligence. . .” How- ever, the evidence does not establish that Dixon made any seri- ous effort to ascertain Payne’s correct seniority. Dixon’s defi- cit of diligence renders the claim of due diligence dubious. But did Dixon state a pretextual reason for deciding to re- duce Payne’s seniority? Dixon’s explanation for doing so doesn’t make much sense. But although an incoherent or self- contradictory answer is consistent with an intent to conceal it doesn’t rule out the possibility that the witness is not intention- ally being devious but simply is incoherent or self- contradictory. INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 21 Moreover, even should I conclude that Dixon equivocated, his motive may not have been to conceal the reason for reduc- ing Payne’s seniority but rather to minimize the fact that he had exceeded his authority. The seniority board, not the union pres- ident, possessed the authority to change a member’s seniority, but Dixon had done it anyway. Dixon had, in effect, been caught trespassing on the seniority board’s turf, which could explain why he awkwardly and unconvincingly claimed to be giving effect to the seniority board’s determination when he was, in fact, doing the opposite. In sum, Dixon’s confusing and inconsistent testimony might reflect a pretext to conceal the true reason for reducing Payne’s seniority, but it also might result from a desire to hide the fact that he usurped the seniority board’s authority. Or, it could be that Dixon goes about his work in a somewhat unstructured way. In these circumstances, although I believe the evidence sufficient to establish a pretext, it would appear prudent to con- sider the Respondent’s rebuttal evidence. To rebut the presumption raised by the General Counsel’s in- itial showing, that is, to prove its affirmative defense, the Re- spondent must do more than present a legitimate reason for its action. It must persuade by a preponderance of the evidence that the same action would have taken place even in the ab- sence of the protected activity.” W. F. Bolin Co., 311 NLRB 1118, 1119 (1993), petition for review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996). The Respondent can meet this burden by presenting evi- dence, including documentation, of past instances when it acted in a similar manner under similar circumstances. See, e.g., Lampi LLC, 327 NLRB 222, 223 (1998). However, the Re- spondent produced no documentation that the Union president, or indeed any Union official, ever reduced the seniority of any- one other than Payne. The Respondent also elicited no testimony that a union offi- cial had reduced the seniority of anyone other than Payne, That is hardly surprising, considering that the Respondent stated, in its affirmative defenses, that it “does not have inherent authori- ty to alter, change, modify or revise the Individual Member’s seniority.” Accordingly, I conclude that the Respondent has not met its rebuttal burden of showing that it would have taken the same action even in the absence of Payne’s protected activity. There- fore, I conclude that the Respondent violated the Act. It is well established that an employee’s right to engage in intraunion activities in opposition to the incumbent leadership of his union is concerted activity protected by Section 7.” Steelworkers Local 1397 (U.S. Steel Corp.), 240 NLRB 848, 849 (1979); accord Laborers Local 836 (Corbet Construction), 307 NLRB 801, 803 (1992) (members have a statutory right to object to the way officers operate the union); Plasterers Local 121, 264 NLRB 192 (1982). The credited evidence establishes that Payne did engage in such protected activity, by criticizing Dixon’s performance as financial secretary and opposing his election to the office of president. For the reasons stated above, I have found that Dixon, in his new capacity as Respondent’s president, retaliated against Payne by reducing his seniority. When a union’s retaliation for protected activity takes the form of disciplining the member for violating an internal union rule, the Board weighs the Section 7 rights of the member against the legitimate interests of the union. Laborers’ Interna- tional Union of North America, Local Union No. 91 (Council of Utility Contractors, Inc. and Various Other Employers), 365 NLRB No. 28 (2017). Here, the retaliation did not involve imposition of a fine or other discipline for violating an internal union rule, but rather reducing a union member’s seniority. Nonetheless, the Respondent does have a legitimate interest in assigning to each person using its hiring hall the correct amount of seniority, as determined by the provisions of the collective- bargaining agreement. Considering that the seniority board did make an error and that Dixon’s action, reducing Payne’s seniority, corrected the error either partially or totally. It certainly may be argued that, by doing so, Dixon was acting in the Union’s legitimate inter- est. However, only the seniority board, and not Dixon, had au- thority to change a member’s seniority. The record does not establish that Dixon, or any other union president, took similar action with respect to any person other than Payne. In these circumstances I cannot conclude that Dixon was acting in the Union’s legitimate interest. Even if a weighing were appropri- ate in this instance, the scale would tilt, strongly, in favor of Payne’s Section 7 right. The credited evidence establishes that Dixon, acting on his own, did not make a good faith attempt to determine Payne’s correct seniority but instead simply seized on the seniority board’s 2016 determination that Payne then had 25 years sen- iority. Dixon reasonably should have known that Payne would not have the same seniority 4 years later. Additionally, Dixon’s testimony did not explain how the 25 year figure could be cor- rect in view of the fact that Dixon himself previously had is- sued Payne a card stating that Payne had 26 years of seniority. Even more telling is the fact that, although the ISSI report provides the most reliable evidence of a member’s seniority and although Dixon testified that he already had Payne’s ISSI form, Dixon did not refer to it before reducing Payne’s seniority. That is not the act of someone exercising “due diligence” to get Payne’s seniority right but rather the action of someone seeking to retaliate. Dixon’s failure to make any reasonable attempt to ascertain Payne’s correct seniority before reducing it constitutes persua- sive evidence supporting a conclusion of unlawful motivation. See, e.g., Graphic Communications International Union, Local 1-M (Bang Printing, Inc.), 337 NLRB 662 (2002) (union vice president’s failure to investigate dissident’s conduct before reporting him to management for alleged misconduct is a factor indicating unlawful motivation). In sum, I conclude that Respondent has failed to carry its Wright Line rebuttal burden. Respondent’s Affirmative Defenses In its answer to the complaint, the Respondent raises 8 “af- firmative defenses.” In its first defense, Respondent states that at all material times it “acted in good faith, and. . .did not act arbitrarily, discriminatorily, or in bad faith” towards the Charg- ing Party. Its second defense repeats much of the first, adding that it harbored no malice or bad faith. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 Of course, the General Counsel bears the burden of proving that the Respondent acted arbitrarily, discriminatorily, or in bad faith. Accordingly, this language does not raise any matter which the Respondent affirmatively must plead and prove. Moreover, for the reasons stated above, I conclude that the General Counsel has carried this burden. The second “affirmative defense” also includes a statement that the Respondent, “through its duly authorized representa- tives, continued to advocate” for the Charging Party, “con- sistent with its fiduciary responsibilities, under the duty of fair representation.” This language does raise a matter which the General Counsel does not have to prove. The Respondent introduced evidence that its President Dixon had advocated for Payne in certain matters, notably, an incident in which a longshore person operating a gantry crane did not climb down the long ladder to find a restroom when one was needed. The employer suspected Payne but the Union was able to resolve the matter in Payne’s favor. This representation did take place around the same time that Dixon reduced Payne’s seniority. Dixon’s effective representa- tion of Payne on this occasion certainly is relevant to whether Dixon harbored animus towards Payne at the time he reduced Payne’s seniority. However, the General Counsel does not bear the burden of proving that Dixon was hostile to Payne at all times and in all places. Likewise, proof that someone did his duty on one occasion does not rule out the possibility that he failed to do so on anoth- er. Here, the evidence is insufficient to overcome the profanity Dixon had directed at Payne or Dixon’s threats to take some action against him. It should be stressed that the testimony about Dixon’s use of profanity has only limited usefulness in determining whether his hostility was momentary or longlasting. Indeed, vulgar words reveal little about even a speaker’s present mental state until they are compared with the speaker’s everyday conversa- tion. Therefore, it would be wrong to assume that a speaker’s anger will persist because he was loud and profane on a particu- lar occasion. However, Dixon didn’t just use foul language. On three oc- casions he made threats. On February 9, 2020, Dixon told Payne that he had “some- thing for you and you will see.” In mid-March 2020 he said to Payne “I’m going to show you.” In May 2020. Dixon told Payne, “You ain’t seen nothing yet. I got something for you.” These statements, made over a period of months, reveal a persistent desire to get even for the criticism Payne had leveled against Dixon during the election campaign. Therefore, the fact that Dixon represented Payne appropriately in the crane inci- dent does not establish that Dixon’s intent to retaliate had evaporated. In its third “affirmative defense,” the Respondent states that it did “not have the inherent authority to alter, change, modify or revise” and “did not do so improperly, or unlawfully, in this case.” The Respondent’s fourth “affirmative defense” argues that the Respondent’s actions “were entirely reasonable and conducted in the utmost good faith” because its president relied upon the pertinent seniority records “which are kept, and main- tained in the ordinary course of business, by the applicable Health and Welfare Fund. . .” Essentially, Respondent argues both that Dixon did not have authority to change Payne’s seniority and that he did so in good faith and in a reasonable way.” The Respondent does not ex- plain how it was reasonable for Dixon to exceed his authority. Moreover, Dixon’s repeated threats to Payne contradict the assertion that Dixon acted in good faith. As to the claim that Dixon “relied upon the pertinent seniori- ty records,” Dixon admitted that, in determining that Payne had 25 years seniority, he did not refer to the “ISSI” form which showed how many hours Payne had worked in each calendar year. This was the most relevant and necessary document. “I should have looked at the ISSI report,” Dixon testified, “but I just went by the notations from the seniority board.” The Respondent’s next two affirmative defenses assert that Payne “improperly and unlawfully” altered the LS-208 form, thereby has unclean hands, and therefore “has no cognizable legal claim.” However, Payne faced federal charges that he altered the document, stood trial, and was found not guilty. In the present proceeding, Payne continues to maintain his innocence. The present record contains no evidence to estab- lish the contrary. Even under the lower, preponderance-of-the- evidence standard applicable here, an accusation that Payne altered the LS-208 must be rejected as unproven. The Respondent’s last “affirmative defense” states: “Through its review of the pertinent work records, and the ap- plicable seniority lists, the Respondent has properly determined that the Individual Member, cannot establish an entitlement to any damages in this case.” However, the Respondent is merely stating a conclusion about what the outcome of this case should be. Moreover, the conclusion concerns the remedy, a matter which will be addressed below. For the reasons discussed above, I reject the Respondent’s affirmative defenses. Additionally, I conclude that Respondent, by its President Dixon, acted arbitrarily, discriminatorily, and in bad faith when he reduced Payne’s seniority, thereby impairing Payne’s employment relationship with the employers that use the Respondent’s hiring hall. In its brief, rather than in its answer, the Respondent raised another argument. In essence, the Respondent contends that the Charging Party “in effect, fell on his sword by admitting that a political rivalry, was not at issue, and/or that political consider- ations did not form the basis of the purported retaliatory animus against him.” (Respondent’s br., p. 19, italics added.) To sup- port its argument, the Respondent cites the following portion of Payne’s testimony: Q. Okay. So, Mr. Dixon won the election by a margin of more than 2 to 1. Would you agree with me? A. Yes, sir. Q. Okay. And if I understand your testimony yesterday, you felt that Mr. Dixon was trying to harm you as a political rival. Wasn’t that the basic tenor of your testimony? A. No, sir. Q. Isn’t it true that in your testimony you felt that Mr. Dix- on was motivated by politics to change your seniority from 26 years back to 25 years? Wasn’t that the general thrust of your testimony? INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 23 A. No, sir. . . . Q. Okay. Are you saying in your testimony that because you’re a political rival of Mr. Dixon that he—because he felt that you were a political rival, that he decided to change your seniority from 26 years to 25 years? A. No, sir, that’s not what I’m testifying to or testified to. The Respondent argues that the issue of retaliatory animus by the respondent has been fully litigated and based on his own admission, the Charging Party is barred from continuing to assert his unfair labor practice claims in this case. See Ozburn- Hessey Logistics, LLC v. NLRB, 939 F.3d 777 (6th Cir. 2019). However, the Respondent’s brief does not quote verbatim the following portion of Payne’s testimony: Q. Is it your testimony that political considerations of Mr. Dixon had no role in the changing of your seniority from 26 to 25 years? A. No, sir, that is not my testimony. That testimony is not helpful to the Respondent’s argument. In a footnote the Respondent’s brief states that even without Payne’s admission that “political considerations had nothing to do with the alteration of his seniority status,” Payne’s position was “internally inconsistent.” Because Dixon won the election “by a margin of greater than 2 to 1, there would be no credible reason for DIXON to retaliate against a weak election oppo- nent.” (Respondent’s brief, page 19, footnote 20, capitalization as in original.) However, the Respondent misunderstands the government’s theory of violation. The General Counsel’s case does not rest on the premise that Dixon was trying to discourage Payne from running against him again. Payne’s protected activity is not merely that he ran for office against Dixon but also that he criticized Dixon’s performance as financial secretary and said Dixon was not ready to be union president. That is clear from Dixon’s reaction, telling Payne that he, Dixon, heard what Payne said. Payne’s criticism angered Dixon so much that Dixon reacted with profanity and threats. Dixon did not lower Payne’s senior- ity as a political machination. Dixon did it because he was mad. Moreover, Payne’s opinion about Dixon’s motive is not dis- positive. There may be instances in which an alleged discrimi- natee is unaware of a respondent’s animus, which the General Counsel proves through other witnesses. Hearing such testi- mony, the shocked discriminatee might refuse to believe it. That would certainly not defeat the General Counsel’s case. The Respondent’s brief argues that “the issue of retaliatory animus by the respondent has been fully litigated” and cites Ozburn-Hessey Logistics, LLC v. NLRB, above. However, that case concerns an issue not present here, the Board’s authority to find a violation not alleged in the complaint but fully litigated at hearing. In sum, the present record includes considerable credited ev- idence that Payne’s criticism caused Dixon to harbor animus which was a substantial motivating factor in Dixon’s decision to reduce Payne’s senior. For all the reasons stated above, I conclude that Dixon would not have taken this action except for Payne’s criticism. Additionally, I conclude that Dixon acted with discriminato- ry motive and in bad faith and that his action affected the em- ployment relationship by reducing Payne’s opportunities to be referred to work through the hiring hall. The Respondent there- fore breached its duty of fair representation and caused or at- tempted to cause an employer to discriminate against him. The Respondent thereby violated Section 8(b)(1)(A) and 8(b)(2) of the Act. CONCLUSIONS OF LAW 1. At all material times, Florida International Terminal, LLC has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all material times, Southeast Florida Employers Port Association, Inc. (SEFEPA) has been and is an organization composed of various employers in the stevedoring and mari- time industry, one purpose of which is to represent its employ- er-members in negotiating and administering collec- tive-bargaining agreements with labor organizations, including Respondent. 3. At all material times, the International Longshoremen’s Association has been and is a labor organization within the meaning of Section 2(5) of the Act. The Respondent, Interna- tional Longshoremen’s Association, Local 1526, has been at all material times, and is, a constituent local union of the Interna- tional Longshoremen’s Association and a labor organization within the meaning of Section 2(5) of the Act. 4. At all material times, the Respondent’s president, Johnnie Dixon, and its vice president, Leon Taylor, Jr., have been the Respondent’s agents within the meaning of Section 2(13) of the Act. 5. At all material times, the International Longshoremen’s Association, on behalf of the Respondent and certain other of its local unions, has been the exclusive bargaining representa- tive, by virtue of Section 9(a) of the Act, of the following em- ployees of the employer-members of SEFEPA: Gang foremen/headers, dock foremen, yard foremen, gantry crane operators, tractor trailer drivers, winchmen, pay loader operators, bulldozer operators, operators of equipment with a lifting capacity of over 40,000 pounds, operators of shipboard mounted cranes, hatch tenders, flagmen, elevator operators, operators of forklifts and other power industrial machinery and electric lift jacks, gang men (hold men, hook men, and dock men) and all other labor performing longshore work, in- cluding water boys, porters, and gantry crane trainers em- ployed at Southeast Florida ports. 6. The unit described in paragraph 5, above, is an appropri- ate unit for collective bargaining within the meaning of Section 9(b) of the Act. 7. Since at least 2012, the International Longshoremen’s As- sociation, on behalf of the Respondent and certain other of its local unions, has maintained and enforced a series of collec- tive-bargaining agreements. The most recent of such agree- ments is effective by its terms from October 1, 2021, through September 30, 2024 and provides that the hiring hall adminis- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24 tered by Respondent is the exclusive source of referrals of em- ployees for employment by the employer-member of SEFEPA at Port Everglades in Fort Lauderdale, Florida. 8. The Respondent, acting in bad faith and with discrimina- tory motive, reduced the seniority of its member Darryl Payne because he engaged in activity protected by the Act, including by criticizing the person who became Respondent’s president while campaigning against him for that office. 9. By the conduct described in paragraph 8, above, the Re- spondent breached its duty of fair representation and violated Section 8(b)(1)(A) and 8(b)(2) of the Act. REMEDY The Respondent, having committed unfair labor practices must remedy them. The remedy must include posting of the Notice attached as an appendix to this decision. Additionally, the Respondent must undo its unlawful action and make Payne whole, with interest, for all losses he suffered because of the Respondent’s conduct. In a typical case, the contours of that remedy would be easy to discern. In the pre- sent case, however, there is a complication. The evidence establishes that the seniority board erred when it concluded, in February 2016, that Payne had 25 years seniori- ty at that time. The error arose because the seniority board relied on an altered workers compensation stating, incorrectly, that Payne had been medically disabled for almost 4 years dur- ing the early 1990s. The Respondent’s unlawful action, alt- hough motivated by an unlawful purpose, had the effect of correcting, either completely or partially, this error. The Board has stated that the underlying policy of Section 10(c) of the Act35 29 U.S.C. Section 10(c) (italics added). is “a restoration of the situation, as nearly as possible, to that which would have been obtained but for the illegal discrimination.” Trustees of Boston University, 224 NLRB 1385 (1986), enfd. 548 F.2d 391 (1st Cir. 1977), quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941). In other words, the Board gives effect to the policy underly- ing Section 10(c) by ordering a respondent to restore the status quo ante. However, in the present unusual case, restoring the status quo ante means reinvigorating the mistake which the unlawful labor practice incidentally corrected. Restoring the status quo ante therefore would hurt others who use the hiring hall by placing Payne ahead of them in the referral queue even though his seniority, when properly com- puted, was less than theirs. Would it be possible to fashion an appropriate remedy which avoided this unfair result? 35 Sec. 10 of the Act empowers the Board to conduct unfair labor practice proceedings such as the present one. Sec. 10(c) provides, in part, as follows: If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act. . . One possible way to remedy the violation might be to order the Respondent to restore the status quo ante by returning Payne’s seniority to 26 years as of August 26, 2020, and then to request that the seniority board determine Payne’s present sen- iority. This option would allow the seniority issue to be re- solved by the means the Union and employer association had negotiated. However, the seniority board is not a party in this proceeding and the Board has no authority to require it to make such a determination. Moreover, the record does not include the rules of the seniority board or otherwise describe who has standing to petition the seniority board to determine or redetermine a long- shore person’s seniority or the circumstances under which the seniority board would entertain such a petition.36 Still, to the extent that restoring the status quo ante gives Payne more seniority than he should have under the terms of the collective-bargaining agreement, it affords him an unfair advantage over some others using the hiring hall by placing him ahead of them in the referral queue. It would be preferable to fashion a remedy that did not harm innocent people. One possible solution might be to make a fresh calculation of Payne’s seniority starting with the first day he used the hiring hall. However, such a calculation runs into an obstacle, the seniority board’s determination that Payne had 25 years seniori- ty in the 2015–2016 contract year. This determination likely is in error because the seniority board relied on the altered LS-208 form. Nonetheless, the Board probably lacks statutory authori- ty to modify the seniority board’s determination, even if it is wrong. The seniority board consists of members appointed by the Union and by the employer association, which is not a party to the present case. The parties’ collective-bargaining agreement defines seniority and how employees earn it. The seniority board then follows these negotiated rules to determine the sen- iority of individual employees. In effect, the seniority board’s determinations, made jointly by representatives of management and the Union, amount to micro-agreements about how the terms of the collective- bargaining agreement will be applied in particular instances. The Act does not empower the Board to modify the terms of collective-bargaining agreements. H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970); Gadsden Tool, Inc., 327 NLRB 164 (1998). Although the Board has broad remedial authority, fashioning a remedy which does not penalize other users of the hiring hall may well exceed it. Therefore, I will recommend a remedy which does not take into account the accuracy of the seniority board’s 2016 determination but instead focuses solely on the alleged unfair labor practice. 36 Although the collective-bargaining agreement sets forth the crite- ria for determining seniority, it does not refer specifically to a “seniori- ty board.” Article 17 of the collective-bargaining agreement describes the different seniority categories (“U” through “AAA”) and sets for the criteria for earning seniority credit. It the states, “Credit to be given in preceding conditions shall be determined by the Union and the Em- ployers.” The agreement creating the seniority board is not in evi- dence. INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 25 The remedy must make Payne whole for losses caused by the unfair labor practice but it can go no further than those losses. As the Board has stated, although “the Board’s remedial au- thority under the Act is quite broad, it does not encompass pu- nitive measures.” Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007), citing Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941). As I understand the General Counsel’s position, she is seek- ing an order which may go beyond what is now customary but which still stops short of being punitive. For example, her brief states that “the Board’s current remedies are still outdated, as they fail to fully remedy and prevent unlawful conduct.” The brief also argues in favor of imposing “consequential emotional distress damages.” Presumably, the General Counsel raised this argument before me to preserve it for the Board’s consideration. Obviously, an administrative law judge has no authority to change Board precedent. Complaint paragraph 7(a) sets forth the unfair labor practice which must be remedied. It alleges that on about August 26, 2020, Respondent “caused Darryl Payne’s credit for years of seniority and seniority classification for the purposes of referral to work by Respondent to be reduced.” To remedy this unlaw- ful act, Respondent must be ordered to change the computer database to show that Payne’s seniority was 26 years on August 26, 2020.37 Using this figure as a base, Respondent must then compute Payne’s present seniority in accordance with the pro- visions of the collective-bargaining agreement. The Respondent’s unlawful reduction in Payne’s seniority may have caused him to lose job opportunities which he other- wise would have received. The Respondent must make Payne whole for all losses of wages and benefits which resulted from the reduction in his seniority. Such losses include all direct or foreseeable pecuniary harms which Payne suffered as a result of the unfair labor practice. Thryv, Inc., 372 NLRB No. 22, slip op. at 6–14 (2022). Dixon not only reduced Payne’s seniority but also sought to make the harm stick. Dixon sent Payne a letter stating that any appeal of the seniority board’s decision “would not be warrant- ed, and in fact, according to our records, your appeal was de- nied. . .” Inclusion of this language serves no apparent purpose other than to discourage Payne from appealing Dixon’s reduc- tion of his seniority. It amounts to an attempt to prevent Dix- on’s unlawful action from being undone. Although it is not alleged in the complaint as a separate violation it repeats the pretext that the seniority board, not the Union, bears responsi- bility for the reduction in Payne’s seniority. Part of the remedy for the unfair labor practice is removal of the pretext which clothed it with the appearance of legitimacy. The Respondent should be ordered to withdraw this letter and to provide written assurances that, if Payne asks the seniority 37 Charging Party Payne may object that the Union’s database was in error and that he actually had more than 26 years seniority on August 26, 2020. That may be true, but even if the 26–year figure is erroneous, the unfair labor practice alleged in the complaint did not cause the error. Therefore, it lies outside the scope of the harm to be remedied. board to make a new determination of his seniority, the Re- spondent will support, rather than oppose, such a request, and will abide by the seniority board’s determination. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended ORDER38 The Respondent, International Longshoremen’s Association, Local 1526, herein referred to as the Union, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Retaliating against its members or any others seeking employment through its exclusive hiring hall, because they criticized any of the Respondent’s officers, opposed them in an election for union office or engaged in other activity protected by the National Labor Relations Act. (b) In any like or related manner restraining or coercing its members or others seeking employment through its exclusive hiring hall in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Restore the seniority which its member Darryl Payne held on August 26, 2020, before Respondent unlawfully re- duced it, and to that figure add any additional seniority which Darryl Payne has accrued since that date. This additional sen- iority shall be determined in accordance with the provisions in the collective-bargaining agreement between the Respondent Southeast Florida Employers Port Association, Inc. (b) Make its member Darryl Payne whole, with interest, for all direct or foreseeable pecuniary harms suffered as a result of its unlawful conduct, including all wages and benefits he would have earned but for the Respondent’s unlawful action. The make-whole relief shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Hori- zons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). (c) Compensate Darryl Payne for the adverse tax conse- quences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 7, within 21 days of the date the amount of backpay is fixed, either by agreement or by Board order, a report allocating the backpay awards to the appropriate calendar year. (d) Rescind the undated letter to Darryl Payne, signed by Respondent’s president, Johnnie Dixon, purporting to explain to Payne the reason for the reduction in his seniority and stating that “any appeal” of the seniority board’s determination “would not be warranted.” The Respondent must also inform Payne in writing that should he ask the seniority board for a new deter- mination of his seniority, the Respondent would support that request and abide by the seniority board’s determination. 38 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26 (e) Within 14 days after service by the Region, post at its Fort Lauderdale, Florida, business office and meeting places copies of the attached notice marked “Appendix.”39 Copies of the notice, on forms provided by the Regional Director for Re- gion 12, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees and members are cus- tomarily placed. In addition to physical posting of paper notic- es, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its members by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Within 14 days after service by the Region, deliver to the Regional Director for Region 12 signed copies of the Respond- ent’s notice to employees and members for transmittal by the Region to employers which are members of the Southeast Flor- ida Employers Port Association, Inc. and any other employers that use the Respondent’s exclusive hiring hall, for posting by those employers if they wish to do so. To facilitate this distri- bution of the notice to employers, the Respondent also shall deliver to the Region, along with the signed copies of the no- tice, a list showing the names of all employers which have agreements with the Respondent to use its hiring hall and the addresses of those employers. (g) Within 21 days after service by the Region, file with the Regional Director for Region 32 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. January 31, 2023. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONSBOARD An Agency of the United States Government 39 If the Respondent’s office and meeting places are open and acces- sible to a substantial complement of members, the notice must be post- ed within 14 days after service by the Region. If the office and meeting places involved in these proceedings are closed or not accessible by a substantial complement of members due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notice must be posted within 14 days after the office and meeting places reopen and are accessible by a sub- stantial complement of members. If, while closed or not accessible by a substantial complement of members due to the pandemic, the Respond- ent is communicating with members by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” 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 National 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.” The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT lower the seniority of a union member or other person seeking employment through our hiring hall be- cause that person criticized a union officer or opposed a can- didate running for union office. WE WILL NOT in any like or related manner restrain or co- erce our members or others seeking employment through our hiring hall in the exercise of rights protected by Section 7 of the National Labor Relations Act. WE WILL NOT correct our seniority records to restore Dar- ryl Payne’s seniority as shown on those records before we unlawfully reduced it on about August 26, 2020, and will update those records to reflect any additional seniority which has accrued since that time. WE WILL NOT make Darryl Payne whole, with interest, for all direct or foreseeable pecuniary harms, including all losses of wages and benefits, which Payne suffered as a result of our unfair labor practice. WE WILL NOT assure Payne, in writing, that should he re- quest that the seniority board of trustees perform a fresh cal- culation of his seniority, we will support that request and abide by the resulting determination. INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL 1526 (SOUTHEAST FLORIDA EMPLOYERS PORT ASSOCIATION, INC The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/12-CB-272549 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.