ILA, Local 1526 (Florida International Terminals, LLC)

373 NLRB No. 22 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 (Florida International Terminal, LLC) and Vendel Johnson. Case 12–CB–285734 February 14, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY On November 17, 2022, Administrative Law Judge Brian D. Gee issued the attached decision. The Re- spondent filed exceptions with supporting argument, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified and set forth in full below.2 1 The Respondent has implicitly excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We adopt the judge’s findings that the Respondent violated Sec. 8(b)(1)(A) and 8(b)(2) by attempting to cause and causing the suspen- sion of Charging Party Vendel Johnson from hiring hall referrals for 30 days because of his protected concerted activity. In doing so, we do not rely on the judge’s discussion of alternative means of discipline availa- ble to the Respondent in the hypothetical situation where Johnson had violated a hiring hall administration rule. 2 We shall amend the judge’s remedy in several respects. In his recommended Order, the judge correctly ordered make-whole relief and described the rate at which interest will accrue. However, he failed to state how the make-whole relief would be computed. We clarify that it shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). The F.W. Woolworth formula applies where, as here, the violation of the Act involves cessation of employment status. In addition, the judge inadvertently ordered the Social Security reporting remedy in accordance with AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016), but that remedy is inappropriate here as the Respondent never employed Johnson. See Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101, 103 fn.12 (2014) (noting backpay owed by nonemployer respondent is not considered wages, so Social Security reporting requirement is not applicable). Lastly, in accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), we shall order the Respondent to compensate Johnson for any other direct or foreseeable pecuniary harms incurred as a result of its unlawful conduct. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed 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) Causing or attempting to cause Florida Interna- tional Terminal, LLC (FIT), or any other employer- member of the Southeast Florida Employers Port Associ- ation (SEFEPA), to fail to employ individuals for dis- criminatory reasons. (b) Recommending that the Labor Relations Commit- tee (LRC) suspend individuals from the exclusive hiring hall for discriminatory, arbitrary, or bad faith reasons. (c) 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) Make Vendel Johnson whole for any loss of earn- ings and other benefits, and for any other direct or fore- seeable pecuniary harms, suffered as a result of his un- lawful suspension from the hiring hall, in the manner set forth in the remedy section of the judge’s decision as amended in this decision. (b) Compensate Vendel Johnson for the adverse tax consequences, if any, of receiving a lump-sum backpay award. (c) Within 14 days from the date of this Order, request in writing that the LRC rescind the unlawful 30-day sus- pension issued to Vendel Johnson, remove from its files any reference to the unlawful suspension, and within 3 days thereafter, notify him that this has been done and that the suspension will not be used against him in any way. 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 Johnson for other pecuniary harms only insofar as the losses were directly caused by the unlawful suspension, or indirect- ly caused by the unlawful suspension where the causal link between the loss and the unfair labor practice is sufficiently clear, consistent with his partial dissent in Thryv, Inc., supra. We also modify the judge’s recommended Order to conform to the amended remedy, the Board’s standard remedial language, and in ac- cordance with our decision 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 precedent, although he expressed disagreement there with the Board’s approach 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 (d) Within 14 days from the date of this Order, re- move from its files, and request in writing that FIT re- move from its files, any reference to the unlawful 30-day suspension issued to Vendel Johnson, and within 3 days thereafter, notify him in writing that this has been done and that the suspension will not be used against him in any way. (e) 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. (f) Post at its Fort Lauderdale, Florida, union office copies of the attached notice marked “Appendix.”3 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 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 internet site, and/or other electronic means, if the Respondent customarily communicates with its members by such means. Reasonable steps shall be tak- en 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 FIT, or any other employer-member of SEFEPA, if they are willing, 3 If the Respondent’s office involved in these proceedings is open and accessible by a substantial complement of employees and mem- bers, 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 by a substantial complement of employees and members due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notice must be posted within 14 days after the office reopens and is accessible to a substantial complement of employees and members. If, while closed or not accessible 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 the Board’s 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.” in all places where their notices to employees are cus- tomarily 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. February 14, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ David M. Prouty, 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 vio- lated Federal labor law and has federal law gives you the right to Form, join, or assist a union 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 cause or attempt to cause Florida Inter- national Terminal, LLC (FIT), or any other employer- member of the Southeast Florida Employers Port Associ- ation (SEFEPA), to fail to employ individuals for dis- criminatory reasons. WE WILL NOT recommend that the Labor Relations Committee (LRC) suspend individuals from the exclu- sive hiring hall for discriminatory, arbitrary, or bad faith reasons. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights listed above. INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 3 WE WILL make Vendel Johnson whole for any loss of earnings and other benefits resulting from his unlawful suspension from the hiring hall, less any interim earn- ings, plus interest, and WE WILL also make Johnson whole for any other direct or foreseeable pecuniary harms suffered as a result of his unlawful suspension from the hiring hall, including reasonable search-for- work and interim employment expenses, plus interest. WE WILL compensate Vendel Johnson for the adverse tax consequences, if any, of receiving a lump-sum back- pay award. WE WILL, within 14 days from the date of this Order, request in writing that the LRC rescind the unlawful 30- day suspension issued to Vendel Johnson, remove from its files any reference to the unlawful suspension, and within 3 days thereafter, notify him that this has been done and that the suspension will not be used against him in any way. WE WILL, within 14 days from the date of this Order, remove from our files, and request in writing that FIT remove from its files, any reference to the unlawful 30- day suspension issued to Vendel Johnson, and WE WILL , within 3 days thereafter, notify him in writing that this has been done and that the suspension will not be used against him in any way. INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL 1526 The Board’s decision can be found at http://www.nlrb.gov/case/12-CB-285734 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. Darma A. Wilson and Hiranice Carrasquillo-Diaz, Esqs., for the General Counsel. Mark J. Berkowitz, Esq., for the Respondent. Mr. Vendel Johnson, for the Charging Party. DECISION STATEMENT OF THE CASE BRIAN D. GEE, Administrative Law Judge. I heard this case from August 2 through August 4, 2022, via the Zoom for Gov- ernment video platform. On May 6, 2022, the General Counsel issued the complaint based on the unfair labor practice charge filed by individual Charging Party Vendel Johnson (Charging Party or Johnson) on November 3, 2021, and amended on March 22, 2022. On May 18, 2022, International Longshore- men’s Association, Local 1526 (Respondent) filed a timely answer denying all material allegations. The complaint alleges that Respondent violated Sections 8(b)(1)(A) and 8(b)(2) of the Act by recommending to the joint labor-management Labor Relations Committee (LRC) that Johnson be suspended for at least 30 days and fined $1000 for allegedly violating Rule 14 of Respondent’s hiring hall rules, and because the LRC, as a foreseeable consequence, suspended Johnson from all work for employers that have a collective- bargaining relationship with Respondent. By this conduct, Respondent attempted to cause and caused the employer- members of the Southeast Florida Employers Port Association, Inc. (SEFEPA) to suspend Johnson from work for 30 days. Furthermore, the complaint alleges that Respondent took these actions in retaliation against Johnson for filing and pursuing internal grievances against Respondent’s officers, for criticizing Respondent’s officers, and for reasons unrelated to the tender of uniformly required initiation fees and periodic duties. At trial, all parties were afforded the right to call, examine, and cross-examine witnesses, to present any relevant documen- tary evidence,1 to argue their respective legal positions orally, and to file post hearing briefs.2 Based on a careful review of the entire record, including the post hearing briefs and my ob- servation of the credibility of the witnesses,3 I make the follow- 1 Abbreviations used in this decision are as follows: “GC Exh.” for General Counsel’s exhibits; “R. Exh.” for Respondent’s exhibits; “Jt. Exh.” for joint exhibits; “Tr.” for citations to the hearing transcript; and “Resp. Answer” for Respondent’s answer. I refer to Counsel for the General Counsel as “General Counsel.” 2 On September 9, 2022, pursuant to Sec. 102.35(a)(8), General Counsel filed a motion to reopen the record, to which Respondent filed an opposition on September 12, 2022. In her motion, General Counsel seeks to reopen the record for the purpose of including two additional pages to Respondent Exhibit 2 showing that Johnson appealed the denial of one of his grievances and was advised by Respondent that his appeal was forwarded to the District Office of the International Long- shoremen’s Association. Sec. 102.48(c)(1) of the Board’s Rules and Regulations provides that, a “motion to reopen the record must state briefly the additional evidence sought to be adduced, why it was not presented previously, and that, if adduced and credited, it would require a different result. Only newly discovered evidence, evidence which has become available only since the close of the hearing, or evidence which the Board believes may have been taken at the hearing will be taken at any further hearing.” In addition, the Board has held that newly dis- covered evidence is “evidence which was in existence at the time of the hearing, and of which the movant was excusably ignorant.” Owen Lee Floor Service, 250 NLRB 651, 651 fn. 2 (1980), enfd. mem. 659 F.2d 1082 (6th Cir. 1981). A motion to admit newly discovered evidence “must also show facts from which it can be determined that the movant acted with reasonable diligence . . . .” Id. In the instant case, General Counsel failed to explain how at the time of the hearing she was excus- ably ignorant of the fact that Respondent Exhibit 2 did not include the two additional pages she now seeks to enter into the record. Nor has she shown how these additional two pages would require a different result in this matter. Based on the foregoing, I deny General Counsel’s motion to reopen the record. 3 These findings of fact are a compilation of the credible testimony and other evidence, as well as logical inferences drawn therefrom. To DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 ing FINDINGS OF FACT I. JURISDICTION At all material times, Florida International Terminal, LLC (FIT or the Employer), has been a Florida limited liability com- pany with an office and place of business at Port Everglades in Fort Lauderdale, Florida, and has been engaged in the business of loading and unloading freight and providing other stevedor- ing and maritime services. During the 12 months preceding the hearing, FIT derived gross revenues in excess of $50,000 for the transportation of freight in interstate commerce under ar- rangements with and as agent for various common carriers, each of which operates between various states of the United States, and between the State of Florida and foreign countries. Based on these operations, FIT functions as an essential link in the transportation of freight in interstate and international commerce. The parties have stipulated, and I find, that FIT is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. I also find, and Respondent admits that, at all material times, Respondent has been a labor organization within the meaning of Section 2(5) of the Act. II. FACTUAL BACKGROUND This controversy takes place in the stevedoring and maritime industry in Florida. FIT and several other employers in South- east Florida are represented by SEFEPA, a multi-employer organization. Respondent and SEFEPA have a collective- bargaining agreement (the CBA), which runs from October 1, 2021, through September 30, 2024. Pursuant to the CBA, Re- spondent operates an exclusive hiring hall through which it refers individuals to jobs with the employer-members of SEFEPA. Paragraph 17 of the CBA states that each local union under ILA will assign work based on seniority and will operate their hiring hall “without discrimination.” Paragraphs 17(B) and (C) authorize employees to file grievances over disputes or claims arising under the CBA. Finally, paragraph 17(C) pro- vides for the creation of the LRC, a committee jointly com- prised of labor and management representatives whose function it is to address grievances between the parties. (Tr. 47–48, Jt. Exhs. 1, 2, and 3; Resp. Answer.) the extent testimony contradicts any of these findings, I have discredit- ed such testimony, either as in conflict with credited evidence or be- cause it was unworthy of belief. In assessing witnesses' credibility, I have considered their demeanors, the context of their testimony, the quality of their recollections, testimonial consistency, the presence or absence of corroboration, the weight of the respective evidence, estab- lished or admitted facts, inherent probabilities, and reasonable infer- ences that may be drawn from the record as a whole. See, Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enf’d. sub nom., 56 Fed.Appx. 516 (D.C. Cir. 2003). Where needed, I discuss specific credibility resolutions in my findings of fact. To aid review, I have included certain citations to the record in my findings of fact. The citations are not necessarily exclusive or exhaus- tive, as my findings and conclusions are based on my review and con- sideration of the entire record. Respondent maintains a set of bylaws, which contains rules covering membership in Local 1526, officers, meetings, mem- ber duties, offenses by officers and members, methods for en- forcing alleged violations of rules, members’ obligation to pay dues, and the conduct of internal union business. (Tr. Jt. Exh. 4.) Since 2021, Respondent has also maintained a document called the “Hiring Hall Rules and Standing Rules,” whose stat- ed purpose is to keep order on jobs and in the hiring process. Rule 14 is titled, “Verbal or Physically assaulting a Local Offi- cial” and provides that “[a]ny person verbally or physically assaulting an officer, of this Local and or performing such an act, with regard to an officer, of any related maritime industry, will be penalized” for the first offense with a recommendation to the LRC for 30 days off from the hiring hall and/or fined $500.” (GC Exh. 9, Tr. 78, 81–84.) A. Respondent’s Officers The following individuals were, at all material times, officers of Respondent and members of Respondent’s executive board: President Johnnie Dixon (Dixon), Vice President Leon Taylor (Taylor), Recording Secretary Carl Brown, Jr. (Brown), finan- cial secretary Anthony Gross, Jr. (Gross), and treasurer James Roscoe (Roscoe). Additionally, Art Kennedy (Kennedy) was a member of Respondent’s executive board. B. The Bargaining Unit At all material times, the ILA, on behalf of Respondent and various other local unions, has been the Section 9(a) representa- tive of the following employees of the employer-members of SEFEPA out of ports located in Southeast Florida: 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. Respondent and the other local unions of the ILA serve as the bargaining representatives of the employees in their geo- graphical areas. For example, Respondent represents the ap- proximately 580 registered members, including Johnson, who work out of Port Everglades. Pursuant to article 15 of the CBA, the employer-members of SEFEPA remit employee dues directly to the appropriate local union, such as Respondent. (Tr. 44–47, Jt. Exh. 16, Resp. Answer at p. 2.) C. The Hiring Hall Respondent operates an exclusive hiring hall, located in Fort Lauderdale, that is the exclusive source of referrals for em- ployment to the employer-members of SEFEPA at Port Ever- glades, with one limited exception. That exception is for “in- house” or “core” workers, who are fulltime employees dedicat- ed to specific employers and who normally receive their job assignments directly from those dedicated employers. Aside from in-house employees, all unit employees receive their job INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 5 assignments through the hiring hall via a process called the “shape up” or “roll call,” during which the Union’s designated business agent distributes assignments to the individuals gath- ered at the hiring hall. Approximately 90 to 95-percent of the job referrals are made through the hiring hall; the remainder of the jobs go directly to in-house employees. The shape up can take anywhere between 3 to 20 minutes, depending on the number of job assignments to be made. (Tr. 44–50, Resp. An- swer at p. 2.) III. FACTS REVELANT TO THE ULP ALLEGATIONS Vendel Johnson has been a member of Respondent for 25 years. Over the last 17 years, he has worked as in-house gantry crane operator, loading and unloading cargo from ships for FIT. There are various benefits to being an in-house operator. One is that he has an “8-hour guaranty,” which means that he re- ceives a minimum of 8 hours of pay for his shifts, even if he works fewer hours. For example, if Johnson worked just 1 hour on a shift, he would still be paid for 8 hours. A second benefit of being an in-house crane operator is that he reports to and receives his job assignments directly from FIT; he does not need to go down to the hiring hall to get his work assignments. In contrast, a “shape operator” will need to report to the hiring hall to receive work assignments. FIT tells Johnson when a vessel is scheduled to be loaded or unloaded, and he will report to work at the dock accordingly. If FIT is not loading or un- loading a vessel on a particular day, Johnson can go to the hir- ing hall to assert his seniority to be assigned to a non-FIT ves- sel through the shape up. (Tr. 46, 56, 128–132, 158.) In 2020, the COVID-19 pandemic severely diminished the amount of work hours to which Respondent could refer its members. For example, with the shutdown of the cruise ship industry, the amount of staffing hours dropped 75 to 80 percent. In response, Respondent established certain COVID protocols whereby members were permitted to utilize their seniority once per day for purposes of obtaining job assignments.4 These COVID protocols only applied to work being assigned through the hiring hall; in-house employees, such as Johnson, were exempt from this protocol—they could still work as many times per day as their designated employer directly ordered them. Due to his status as an in-house operator, Johnson was viewed by Respondent’s officers as one of the few individuals fortunate enough to receive steady work assignments during the pandem- ic. (Tr. 53, 100, 122.) 4 The parties disagree as to how an in-house employee’s ability to assert seniority was affected by these COVID protocols. President Dixon testified that in-house employees could assert their seniority only if they had received no other job assignments from their designated employer that day. (Tr. 54.) In contrast, Johnson’s view was that, as an in-house operator, he was free to assert his seniority regardless of whether he had received an assignment from his designated employer that day. (Tr. 191, 264.) This disagreement underlay various events in this case, including the events of September 26 shape up, which led to his suspension. I do not consider the merits of this contractual dispute, as it does not change the protected nature of Johnson’s efforts to assert his seniority. The Board and the courts have interpreted the Interboro doctrine (157 NLRB 1295 (1966)) to apply to both correct and mistak- en employee interpretations of contractual rights. King Soopers, Inc., 364 NLRB 1153, 1154 (2016). Charging Party Johnson’s Three Grievances Filed Against Respondent’s Executive Board Members In 2020 and 2021, Johnson filed three grievances against Re- spondent’s executive board members pursuant to the CBA and Union Bylaws. Johnson’s First Grievance. On April 1, 2020, FIT sent a let- ter to President Dixon accusing Johnson of improperly aban- doning work on a vessel earlier that day and requesting that Respondent suspend Johnson for four days. Johnson was told of the suspension by Vice President Taylor. Johnson viewed FIT’s claim of job abandonment as false and concluded that Dixon failed to properly represent him by not challenging FIT’s accusations. Johnson therefore filed a grievance against Dixon, accusing him of violating the Union’s bylaws and seeking compensation for his 4-day suspension. In his written griev- ance, Johnson criticized Dixon for not properly representing him: On April 2, 2020, I learned of a letter that was written about me abandoning the job. I did not receive any Union [Re- spondent] representation from Local 1526 in reference to this suspension letter. . . . This is not how the Union process works and this sets a BAD precedence in the eyes of Florida Interna- tional Terminal based on a letter that had been totally fabri- cated. I should have received some type of Union representa- tion. Per this suspension letter that was received by the President of Local 1526 Johnny Dixon, I abandoned the job without any notification. This is an outright lie! (Emphasis original.) (Jt. Exh. 8.) On May 26, 2020, Respondent’s executive board held a trial board hearing, per the bylaws, absolving Dixon of the charges Johnson made against him. As to Johnson’s four days of pay lost due to the suspension, the executive board stated that it would forward that issue to the LRC. However, as of the date of the instant hearing, Johnson had not received any update from the LRC. When he asked Dixon, Taylor, and Brown about his grievance, they replied that they were “looking into it.” (Tr. 146–155; Jt. Exh. 4.) Johnson’s Second Grievance. On August 27, 2021,5 FIT scheduled Johnson to unload a vessel arriving that morning. But because he was fatigued from his shift the prior day, John- son telephoned recording secretary Brown, who was serving as the acting business agent that day, to request a replacement. Johnson added that he would be available for any assignment in the evening. Brown responded that he would look into it. Af- ter FIT called Johnson in the afternoon to ask if he was availa- ble to work on the vessel arriving at 7 p.m., Johnson contacted Brown to ask if he was going to receive the assignment. Brown expressed uncertainty over who would be assigned. Ultimately, Brown gave the job, not to Johnson, but to a shape operator who was assigned out of the hiring hall. (Tr. 155–158.) Bothered by what he viewed as a breach of Respondent’s policies and longstanding practice to assign jobs by seniority, Johnson filed a grievance on September 7. In his grievance, 5 All dates herein are for the year 2021 unless specified otherwise. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Johnson asserted that Brown violated article XI, section 2 of Respondent bylaws by causing his discharge from a work gang without proper cause. He sought to be paid for the nine hours of work he believed he was owed. More significantly, though, Johnson was explicitly critical of Brown in his grievance, writ- ing: I am not sure if personal feelings or incompetence are in- volved but for an –executive board member to knowingly de- ny me the opportunity to work[] on August 27, 2021 is totally unacceptable and he is fully aware of the 8 hours guarantee that goes with the label of an in-house operator. Whether there is dislike for a person or not an executive board member should be able to make decisions that are in the best interest of the membership and the local and leave personal feelings if any aside. (Emphasis original.) (R. Exh. 3, p. 2.) Respondent’s executive board conducted another trial board hearing on September 17 and issued its decision on September 24, finding that Brown was not guilty of the allegations made by Johnson. Johnson appealed that decision to the membership, which denied his appeal. Johnson then filed an appeal with the ILA district office. To date, this grievance remains open. (Tr. 155–161, R. Exh. 3.) Johnson’s Third Grievance. On September 10, FIT sched- uled Johnson to unload a vessel in the morning, but Johnson was unable to work that morning and requested a replacement operator from Vice President Taylor. Later that day, based on his understanding that FIT had requested him for an evening vessel, Johnson became upset that Taylor had assigned two other operators for the evening vessel instead of him. A week later, on September 17, Johnson filed his third grievance against Respondent’s officers, alleging that Taylor violated article XI, section 2, par. (J) of the Union’s bylaws—“Causing the discharge of a member from a work gang without proper cause.” Like his other grievances, Johnson criticized Respond- ent’s executive board. The grievance states, in pertinent part: It is amazing to me that the same exact scenario occurred within a 2-week time frame. The only difference is that, this time it’s the Vice President – Leon Taylor and not the Re- cording Secretary – Carl Brown. . . . After 2 weeks in a row, I am sure that the lack of competency plays a factor. Leon Taylor our Vice President is fully aware of the 8-hour guarantee that goes with the label of in-house operator. If there is a competency issue with the Vice President or any executive board member this needs to be addressed. Profes- sionalism should always be exhibited in decisions that are in the best interest of the local. I am a rank-and-file member, and my voice matters and to see this happen two weeks in a row is beyond embarrassing to me. (GC Exh. 3.) On October 22, Respondent’s executive board held a third trial board hearing to consider Johnson’s latest grievance. On October 28, it denied the grievance, finding Taylor not guilty of Johnson’s charges against him. On November 3, Johnson filed an appeal in which he criticized Respondent and suggested that the executive board had unjustly discriminated against him by disregarding his seniority: At this point, facts do not matter. I have provided detailed grievances on how my seniority has been blatantly ignored. I have spent 25 years as a longshoreman dealing with the ups and downs of accumulating seniority always understanding that seniority is the number 1 priority in our local. For you to have consistently denied my seniority there must be more to this issue. (Tr. 163, GC Exh. 3.) The September 26 Shape Up. Johnson’s efforts to assert his contractual seniority rights came to a head on Sunday, Septem- ber 26. On Sundays, all employees who receive a job assign- ment—not just in-house employees—receive eight guaranteed hours of pay, even if they work fewer hours. For the first time in the two years since the start of the COVID-19 pandemic, Johnson headed to the hiring hall for an in-person shape up. (Tr. 190–191.) FIT had three vessels scheduled to dock and be unloaded that day—their original docking times being 10 a.m., 1 p.m., and 3 p.m. Johnson and the other in-house crane operators were scheduled to work the final arrival, the 3 p.m. ship (which was later pushed back to 7 p.m.). However, because Johnson was informed that the final vessel might not be confirmed, he went to the shape up to assert his seniority and get assigned to the 1 p.m. vessel instead. If that happened, Johnson would forego the uncertain 7 p.m. assignment and leave that opportunity to another operator. (Tr. 191–192.) Johnson arrived prior to the start of the 11:45 a.m. shape up, which was being conducted in Respondent’s hiring hall, a large assembly room with a podium in the middle. Approximately 30 to 40 members were present. Before the roll call began, Johnson walked up to the podium, where Vice President Taylor stood and attempted to assert his seniority to work on the 1 p.m. vessel. Fellow in-house operator Anthony Fye (Fye) was also present and tried to get the earlier assignment too. From the podium, Dixon told Johnson and Fye that they were going to have to stay on the 7 p.m. vessel and other in-house crane oper- ators were going to be assigned to the 1 p.m. vessel. Dixon said they could discuss the matter afterwards, and so Johnson stayed quiet to let the shape up proceed. The shape up pro- ceeded as normal, without any interruptions and lasted for only a couple of minutes. Respondent made all the job assignments for the 1 p.m. vessel. (Tr. 192–193, 238, 404–405.) After the roll call ended, Dixon stepped down from the podi- um and approached Johnson. Johnson asked why Dixon was not allowing him to assert his seniority and get on the 1 p.m. vessel. Dixon responded that he had already explained to John- son that he was in a good position because he worked more than any other member, and that there was nothing more to discuss. Dixon then turned away and made a backwards push- ing gesture with his right hand as he walked away to talk with other members. Perceiving this to be a dismissive act, Johnson followed Dixon, continuing to plead his case that Dixon needed to discuss this issue and not disrespect him. Dixon responded by admonishing Johnson not to “walk up” on him and saying INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 7 that Johnson should be satisfied since he receives more work assignments than others in the Union. Both men were speaking in loud and heated voices by this time, and so Recording Secre- tary Brown approached and told them to tone it down. (Tr. 194–198.) 6 As Brown led Dixon towards the conference room, Johnson pivoted and shouted to the members lined up along a nearby wall, “this is bullshit!” Johnson continued by saying that, while Dixon is denying him the right to assert his contractual seniori- ty in this instance, the next time the other members might be the ones who are denied that right. In describing the scene, executive board member Art Kennedy credibly testified, “I heard some profanity, like this is bullshit and, you know, it's kind a lot of the stuff that happened, and you guys tell a lot of stuff that happened, talking to the membership— not the members but the people that were in the hall. You all going to let this go like this? You know, just—you know, it's not right. You know, he was just voicing his displeasure.”7 (Tr. 197, 378.) After separating from Dixon, Johnson headed towards the exit of the hiring hall. When he reached the door, Johnson turned around, pointed to others in the hall, and shouted for a second time, “This is bullshit!” Johnson thus reiterated to the employees his frustration over being denied the opportunity to assert his seniority. Kennedy testified, “So, he was just saying, you all going to keep allowing this to happen?” With that, Johnson exited the hiring hall. There was no physical alterca- tion, threats of bodily harm, or any threats at all. (Tr. 123–124, 394.) The entire episode from the end of the roll call up to the time Johnson exited the hiring hall lasted less than three minutes. (Tr. 198, GC Exh. 7.) Suspension of Johnson. Two days later, on September 28, Dixon requested an emergency meeting of the LRC based on the “impermissible conduct” of Johnson. Dixon accused John- son of violating Respondent’s rule 14 of the “Hiring Hall Rules and Standing Rules.” Dixon urged the LRC to suspend John- son for a minimum of 30 days and fine him $1000.8 (GC Exh. 6 In addition to witness testimony, General Counsel introduced sur- veillance video footage of the shape up. (GC Exh. 7.) While it lacks audio, the video begins with Johnson’s physical movements and ges- tures before the start of the roll call up to his exit from the hiring hall after his interaction with Dixon after the roll call. 7 While Dixon’s testimony was credible on most other subjects, I found key portions of his testimony about the September 26 shape up to include exaggerated details and fabricated facts designed to bolster his version of events. For example, Dixon testified, “Mr. Johnson became upset and was like fuck this shit, this m'fer is going to talk to me to- day.” (Tr. 67, 75.) However, when confronted with his Board affida- vit, that profane language was absent. (Tr. 76–77.) I therefore discredit Dixon’s testimony as to what Johnson said after the jobs were assigned at the shape up on September 26 and his characterization that Johnson subjected him to an “aggressive verbal assault.” (Tr. 105.) Instead, I rely on the testimonies of Johnson and Kennedy about the events of the shape up, which are largely consistent with each other and with the surveillance video. 8 Rule 14 provides for a possible fine of $500, not $1000. Nonethe- less, I do not glean any animus by Dixon’s request that the LRC fine Johnson $1000 since I view that as a mere oversight on his part. 4.) On October 5, the LRC conducted the emergency meeting by telephone and Zoom videoconference. Present that day were several representatives of SEFEPA and of various ILA locals. Representatives for Respondent were Dixon, Taylor, and Gross. Johnson attended by telephone. Dixon made initial remarks on behalf of Respondent. According to the meeting minutes, Dix- on stated that “Vendel Johnson’s personality is very toxic and has had issues with other people.” As to what happened at the shape up, Dixon asserted that Johnson “became very agitated and aggressive during the Hiring Hall. Mr. V. Johnson fol- lowed Mr. Dixon speaking out loud saying profanities and that ‘this is B.S.’” Dixon also confirmed that Johnson was seeking to assert his contractual seniority right to get assigned to work the earlier vessel: “Mr. Johnson was upset because he wanted to check on for a 3pm vessel but he was already on a house gang scheduled for 7pm.” Vice President Taylor also gave testimony saying, according to the minutes, that “Johnson came in very belligerent that day and as they finish[ed] the hiring, Mr. Johnson followed Mr. J. Dixon around the Hall.” Taylor stated, “Mr. Johnson was on the schedule to work at 7pm. He was upset about not being able to be allowed to check in at mid-day.” (Jt. Exh. 6.) When it was his turn to speak to the LRC, the minutes show that Johnson conceded his angry outburst at the hall and that he regretted it.9 Johnson explained that he went to the shape up to exercise his seniority and get assigned to the earlier vessel since the later vessel might be late. Johnson admitted that he said, “This is BS.” The LRC trustees asked Johnson just two ques- tions: whether he worked the morning assignment on Septem- ber 26 and whether he cursed Dixon. In response to the latter question, Johnson admitted that he did use profanity at the shape up but added that he did not aim that profanity directly at Dixon or any individuals. (Jt. Exh. 6, Tr. 205–206.) After each spoke, Johnson and Dixon were excused from the virtual meeting. The remaining LRC members watched the surveillance video of the shape up, deliberated, and voted to suspend Johnson for 30 days but not to issue any fines. All the LRC executive board members present that day, including Tay- lor and Gross, who were not recused from participating in the deliberations or decision, voted in favor of the suspension. (GC Exh. 4, Tr. 364.) On October 5, the LRC decided, by unanimous vote, that Johnson would be suspended from the Union’s hiring hall for 30 days. Johnson served the 30-day suspension from October 5 through November 4. (Jt. Exh. 6, Tr. 209.) LEGAL ANALYSIS The Relationship Between Sections 7, 8(b)(1)(A), and 8(b)(2) To guarantee the Section 7 right of employees to stand in opposition to their bargaining representative, the Board has long recognized a “wall erected by the Act between organiza- tional rights and job opportunities.” Lummus Co. v. NLRB, 339 F.2d 728, 734 (D.C. Cir. 1964). “Integral to the policy underly- 9 In his testimony, Johnson could not recall what he said at the LRC hearing. I therefore base this on the minutes from the LRC hearing, which are contemporaneous notes of what the parties stated at that time. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 ing Section 8(b)(1)(A) and (2) of the Act is the intent to sepa- rate membership obligations owed by employees to their bar- gaining representatives from the employment rights of those employees.” Electrical Workers IBEW Local 1547 (Rogers Electric), 245 NLRB 716, 717–718 (1979) (footnoted citations omitted). In situations such as this one, where the union oper- ates an exclusive hiring hall, the union violates Sections 8(b)(1)(A) and 8(b)(2) by breaching that wall in retaliation for protected dissident activities. For example, in International Longshoremen’s Association, Local 1408, 258 NLRB 132, 138 (1981), a decision with important similarities to the instant matter, the union violated the Act because its actions to “en- force discipline by denying employment to [charging party] Lindsey, . . . crossed a forbidden boundary in violation of the Act.” More specifically, the Board found that “[The union] denied job referrals to Lindsey because of his verbal attack upon the union president and his criticism of the hiring hall practices . . . such action is a discriminatory denial of referral for employment, in violation of Section 8(b)(1)(A) and 8(b)(2) of the Act. . . .” Id. at 138. See also Lummus Co. v. NLRB, supra, at 735 (“Thus, as in the present case, if a union has an exclusive hiring hall for all employers having work in a given area, and it refuses to refer to any employer whatsoever, for the proscribed reasons, it violates the Act.”) Furthermore, it has long been recognized that union dissident activity, including an individual employee’s right to criticize his union’s leadership, is protected by Section 7 of the Act. As the Board has stated: ...interference with intraunion disputes, under certain circum- stances, may be violative of the Act to the same extent as co- ercion exerted in employer-union or interunion conflicts. The discharge of a dissident within a union when that termination is motivated by a desire to eliminate protest must inevitably result in an infringement of that employee’s right to self- organization. We believe that inherent in that right is the privi- lege of protest and persuasion of others. Without this, effec- tive employee representation becomes a nullity. Nu-Car Carriers, Inc., 88 NLRB 75, 76–77 (1950), enfd. 189 F.2d 756 (3d Cir. 1951), cert. denied 342 U.S. 919, 72 S.Ct. 367, 96 L. Ed. 687 (1952). For this reason, to safeguard the right of employees to openly criticize their union leaders, Board law guards against unions retaliating on that basis by adversely affecting their employment opportunities. Graphic Communi- cations Workers International Union, Local 1-M (Bang Print- ing, Inc.), 337 NLRB 662, 673 (2002). Positions of the Parties The General Counsel contends that Respondent violated Sec- tions 8(b)(1)(A) and 8(b)(2) by breaching the duty of fair repre- sentation. First, by recommending that the LRC suspend John- son for 30 days, Respondent interfered with Johnson’s em- ployment status for reasons other than his failure to pay dues, initiation fees, or other uniform fees. This gave rise to a rebut- table presumption that Respondent encouraged union member- ship in violation of Sections 8(b)(1)(A) and 8(b)(2). In turn, Respondent failed to rebut the presumption by demonstrating that its actions were necessary for the effective performance of its representational functions. Second, General Counsel argues that Respondent acted arbitrarily by seeking Johnson’s suspen- sion by the LRC for having violated rule 14 of the Union’s hiring hall rules, which authorizes suspension of a person and/or a fine of $500 for verbally or physically assaulting a Union officer. Because nothing Johnson did on September 26 could reasonably be construed as a “verbal assault,” the Union acted inconsistently with its own rules.10 Third, the Union acted unlawfully because the timing of the suspension recom- mendation supports an inference that the suspension was in response to Johnson’s protected conduct in filing internal grievances and criticizing Dixon’s operation of the hiring hall. Respondent defends it violated neither Section 8(b)(1)(A) nor 8(b)(2). With regard to the Section 8(b)(1)(A) allegation, Respondent argues that it did not breach its duty of fair repre- sentation because it reasonably adopted its COVID protocols which placed limits on the assignment of jobs from the hiring hall; properly administered its hiring hall at the September 26 shape up; did not intend to discriminate against Johnson but rather sought to distribute work assignments in an equitable fashion; operated its hiring hall in a nonarbitrary and nondis- criminatory fashion; and that the “internal union affairs” provi- so in Section 8(b)(1)(A) provides a “protective and absolute shield” for the LRC’s decision to suspend Johnson. As to the Section 8(b)(2) allegation, Respondent argues that allegation must fail because there is no evidence that the employer- members of SEFEPA discriminated against Johnson based on his union activity; because the General Counsel has failed to establish any violation of Section 8(b)(1)(A), there can be no violation of Section 8(b)(2); and there is no evidence that Re- spondent influenced the LRC to take negative action against Johnson. The Section 8(b)(2) Allegation General Counsel alleges, in paragraph 8(a) - (e) and para- graph 10 of the complaint, that Respondent violated Section 8(b)(2) of the Act by attempting to cause and causing the em- ployer-members of SEFEPA to suspend Johnson for 30 days, and that Respondent did so because Johnson filed and pursued internal union grievances and criticized officers of the Union. As explained below, the credible evidence shows that Respond- ent attempted to cause and did cause the LRC to suspend John- son from the hiring hall for 30 days, thereby precluding his employment by the employer-members of SEFEPA, and that this conduct violated Section 8(b)(2) pursuant to either a Wright Line or a breach of the duty of fair representation analysis. Cause or Attempt to Cause. Section 8(b)(2) of the Act makes it an unfair labor practice for a union or its agents to cause or attempt to cause an employer to discriminate against an employee in violation of Section 8(a)(3).11 A violation can 10 In her brief, Counsel for the General Counsel did not address physical assaults. Nonetheless, the record contains no evidence show- ing that Johnson committed any physical assault against any Union officer either. 11 This discrimination can take various forms. For example, in Communications Workers International Union, Local 1-M (Bang Print- ing, Inc.), 337 NLRB 662, 662 (2002), the respondent union unlawfully attempted to cause the employer to “investigate, discharge, other oth- erwise discriminate against” an employee. In Teamsters Local Union INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 9 be established by a showing of either causing or attempting to cause employer discrimination. Graphic Communications Workers International Union, Local 1-M (Bang Printing, Inc.), 337 NLRB 662, 678 (2002) (the Act “does not restrict the un- fair labor practice it prohibits to successful action by labor or- ganizations.”). Direct evidence that the union expressly de- manded the discrimination is not necessary. M.W. Kellogg Constructors, Inc., 273 NLRB 1049, 1051 (1984), remanded on other grounds 806 F.2d 1435 (9th Cir. 1986). Teamsters Local Union 735-S (Bemis Co.), 369 NLRB No. 97, slip op. at 3 (2020); Caravan Knight Facilities Management, 362 NLRB 1802, 1805–1806 (2015). In the immediate case, the General Counsel has demonstrat- ed that Respondent attempted to cause Johnson to suffer ad- verse employment opportunities in retaliation for his attempts to enforce his seniority rights under the CBA. On September 18, Dixon, in his capacity as union president, requested an emergency meeting of the LRC and recommended that Johnson “be suspended from the hiring hall for a minimum of thirty (30) days . . .” (GC Exh. 4.) This request and recommendation resulted in the LRC’s decision to suspend Johnson for 30 days from any referrals from the Union’s exclusive hiring hall to the employer-members of SEFEPA. (GC Exh. 4.) It is no defense that Dixon only made a recommendation to the LRC and that it was the LRC, not the Respondent, that suspended Johnson. This is so because the LRC’s action of suspending Johnson was a foreseeable consequence of Dixon’s request. “It is long set- tled, ‘a man is held to intend the foreseeable consequences of his conduct.’” Graphic Communications International Union, Local 1-M (Bang Printing, Inc.), supra, at 677 (citing Radio Officers v. NLRB, 347 U.S. 17, 45 (1954). Accordingly, I find that Respondent attempted to cause the LRC to suspend John- son from the exclusive hiring hall for 30 days, resulting in the denial of employment by the employer-members of SEFEPA. There is also sufficient evidence showing that Respondent caused Johnson to be suspended because of his Section 7 activi- ties. First, the Board has held labor-management committees, such as the LRC, to be joint-agents of the union and the con- tracting employers. The union is responsible for the actions of this joint-agent, just as it would be responsible for any agent who operates the hiring hall. Electrical Workers IBEW Local 6 (San Francisco Electrical Contractors), 318 NLRB 109, 126- 127 (1995). See also, Electrical Workers Local 3, (Ericsson Telecom), 257 NLRB 1358, 1370 (1981). Because the facts show that the LRC was created by the CBA, was jointly admin- istered by Respondent and the employer-members of SEFEPA, and was an integral part of the hiring hall process, the LRC was a joint-agent of Respondent and the contracting employers. Respondent was therefore responsible for the LRC’s decision to suspend Johnson for 30 days. Second, Respondent’s agents— Taylor and Gross—participated in the LRC’s decision by vot- ing in favor of suspension. This participation further supports finding that Respondent caused the suspension. Whether the Conduct Violated Section 8(b)(2). The next 735-S (Bemis Co.), 369 NLRB No. 97, slip op. at 1 (2020), the re- spondent union unlawfully attempted to cause the employer to disci- pline an employee. question is whether Respondent acted unlawfully in seeking Johnson’s suspension by the LRC. In assessing whether a un- ion violated Section 8(b)(2), the Board has applied both the analytical framework set forth in Wright Line, 251 NLRB 1083 (1980), and the duty-of-fair-representation framework. Truck Drivers, Chauffeurs and Helpers, Teamsters Local 100 (Wicked Films, LLC), 370 NLRB No. 15, slip op. at 1 fn. 1 (2020); Teamsters Local Union 735-S (Bemis Co.), 369 NLRB No. 97, slip op at 3 (2020); United Government Security Officers of America International and its Local 129, 367 NLRB No. 5, slip op. at 14 (2018); SSA Pacific, Inc., 366 NLRB No. 51, slip op. at 1 (2018). For the reasons that follow, I find the violation under either standard. A. Wright Line To establish a prima facie case under Wright Line, there must be evidence showing that Johnson engaged in protected activi- ty, Respondent had knowledge of that activity, Respondent bore animus towards the employee’s protected activity, and that Johnson’s employment opportunities were adversely affected. See Sheet Metal Workers Local 85(Logistics Co.), 368 NLRB No. 50, slip op. at 8 (2019), and Graphic Communications Lo- cal 1-M (Bang Printing), 337 NLRB 662, 673 (2002). Infer- ences of discriminatory motive may be warranted under the totality of the circumstances of a case. United Paperworkers International Union, Local 1048 (Jefferson Smurfit Corp.), 323 NLRB 1042, 1044 (1997). If the General Counsel meets her burden, the burden shifts to Respondent to produce sufficient evidence to establish that it would have taken the same action even absent the employee's protected activity. Security, Police & Fire Professionals of America (SPFPA) Local 444, 360 NLRB 430, 436 (2014). While the General Counsel did not analyze this allegation under Wright Line, she did present sufficient evidence to estab- lish a prima facie case. Johnson’s three grievances were pro- tected dissident activity known to the Respondent. Grievance filing is concerted and protected activity because it entails en- forcement of rights contained in the collectively bargained CBA. Indeed, even individual assertions of contract rights apart from the formal grievance procedure are protected under the Act. See NLRB v. City Disposal Systems, 465 U.S. 822, 104 S.Ct. 1505, 79 L.Ed. 2d 839 (1984); see also Teamsters Local 735-S (Bemis Co.), 369 NLRB No. 97, slip op. at 1 (2020)(employees have a protected right to participate in the machinery of the grievance and arbitration process)(citations omitted). Johnson filed three grievances against Union officers and in the process criticized them for the way they declined to recognize his seniority to receive certain job assignments. It is uncontroverted that Respondent knew about those grievances, as it accepted, processed, and denied them. Respondent has not asserted, nor is there any evidence to show, that in filing, pro- cessing, and appealing these grievances, Johnson did anything to lose the protections of the Act. Additionally, Johnson’s efforts to assert his contractual sen- iority rights at the September 26 shape up constituted Section 7 activity because opposition to union officers or policies is con- duct protected by Section 7 of the Act. Sheet Metal Workers Local 16 (Parker Sheet Metal), 275 NLRB 867 (1985). A hir- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 ing hall user’s otherwise protected conduct in “policing” the operation of a hiring hall, including raising complaints about the hall's operation and demanding access to referral records, will lose the Act’s protection only where the user acts in a dis- orderly or disruptive manner. Teamsters Local 87, 273 NLRB 1838 (1985). In the immediate case, the credible evidence shows that Johnson’s conduct at the shape up did not exceed Section 7’s protections to voice dissent. First, while Johnson did shout “bullshit” twice, that was in the context of him pro- testing the decision by Respondent’s leadership to deny him the right to assert his seniority and get work on the earlier vessel and urging other employees not to accept such decisions by the executive board since they might be the ones harmed the next time around. Board law recognizes that employees may some- times become heated when raising Section 7 concerns and the mere use of vulgar or profane language does not cause the em- ployee to lose the protections of the Act. Teamsters Local 657 (Texia Productions), 342 NLRB 637, 645 (2004). Second, the record is absent of any evidence that Johnson engaged in any physical violence, threatened physical violence, or uttered any other types of threats. Finally, and most significantly, the shape up was not disrupted in any way. Johnson’s efforts to assert his seniority occurred before and after business was conducted. When the loud verbal exchange between Johnson and Dixon occurred, the roll call had already concluded. Kennedy credi- bly testified that the Union was able to make the necessary job assignments and that the shape up had proceeded as normal. Respondent’s animus towards Johnson’s Section 7 activity is evident in the following. First, Dixon admitted that he, on be- half of Respondent, requested that the LRC suspend Johnson based on the events of the September 26 shape up: “Based on the egregious conduct of Mr. Johnson, after our recent shape up, we are recommending to the LRC, that Mr. Johnson be suspended from the hiring hall for a minimum of thirty (30) days . . .” (GC Exh. 4.) It is thus undisputed that one reason for the suspension recommendation was Johnson’s protected dissident activity at the shape up. Second, I infer animus from the close timing between Johnson’s Section 7 activity and Re- spondent’s suspension recommendation. Johnson’s grievances against Taylor and Brown were filed in September, just a few weeks before Dixon’s request that the LRC suspend him. John- son’s additional efforts to assert his seniority rights at the shape up occurred just two days before Dixon’s request. This close proximate timing supports a finding of animus. Charter Com- munications, LLC, 366 NLRB No. 46, slip op. at 7 (2018) (tim- ing of employee discharge, within three months of Respondent learning of union activity, supported a finding of animus), enfd. 939 F.3d 798 (6th Cir. 2019). Third, animus is shown by pre- text. Respondent’s request for Johnson’s suspension was based on an alleged breach of rule 14 of Respondent’s “Hiring Hall Rules and Standing Rules.” However, the credible evidence simply fails to show that Johnson either verbally or physically assaulted President Dixon or any other Union officer at the shape up. Dixon admitted that Johnson did not physically touch him or threaten to harm him in any way. Because Re- spondent’s invocation of rule 14 was wholly unsupported by the facts, I find it pretextual. Fourth, animus is shown by Re- spondent’s failure to conduct any meaningful investigation of the shape up. Prior to urging the LRC to suspend Johnson for 30 days, no one from Respondent spoke to Johnson. At the LRC meeting, no officer of Respondent asked questions of Johnson when they had the opportunity. To the extent that others at the LRC meeting had the opportunity to ask Johnson questions, they asked none directed towards getting his side of the story. In Graphic Communications Local 1-M (Bang Print- ing), 337 NLRB 662, 662 (2002), the Board held that the re- spondent union’s failure to investigate the affected employee’s conduct was a “factor indicating unlawful motivation.” The adverse employment action was the 30-day suspension, which the LRC issued on October 5 and which Johnson served from October 5 through November 4.12 Based on the foregoing, there is a prima facie case under the Wright Line framework. The burden of production thus shifted to Respondent to demonstrate that it would have sought John- son’s 30-day suspension even absent his protected grievance filings and efforts to assert his contractual seniority. In its brief, Respondent did not include any defense specifically based on Wright Line, however I will consider arguments that could support such a defense. Based on my consideration of such, I conclude that Respondent has failed to establish a Wright Line defense. First, to a possible defense based on Johnson’s conduct at the shape up being unprotected, I have already concluded above that Johnson’s assertion of his con- tractual seniority rights on September 26 was protected activity. Second, I am unpersuaded by Respondent’s contention that the two grievances Johnson filed in September “could not be a possible source of retaliatory animus” because they lacked merit or because Johnson received due process from the Union in its handling of the grievances. Neither of those facts pre- clude a finding of animus by Union leadership based on the timing of those grievances, which was proximate in time to Dixon’s suspension recommendation. Finally, to the extent that I find its invocation of rule 14 to have been pretextual, Re- spondent “necessarily cannot meet its Wright Line rebuttal burden” and discriminatory motive may be inferred. See CSC Holdings, LLC, 368 NLRB No. 106, slip op. at 3 (2019). B. Duty of Fair Representation When a union causes or attempts to cause an employee to be disciplined, there is a rebuttable presumption that it acted un- lawfully because that “demonstrates its power to affect the employees’ livelihood in so dramatic a way as to encourage union membership among the employees.” Graphic Communi- cations Local 1-M, 337 NLRB at 673 (quoting Operating Engi- neers Local 478 (Stone & Webster), 271 NLRB 1382, 1382 fn. 2 (1984)). A union may rebut this presumption by demonstrat- ing that its action "was necessary to the effective performance of its function of representing its constituency.” Operating Engineers Local 18 (Ohio Contractors Assn.), 204 NLRB 681, 681 (1973), enf. denied on other grounds 496 F.2d 1308 (6th 12 A union’s discriminatory refusal to refer a member from its exclu- sive hiring hall amounts to causing or attempting to cause employers to discriminate against the member in violation of Sect. 8(a)(3), which in turn supports a finding that the union violated Sections 8(b)(2) and 8(b)(1)(A). Electrical Workers IBEW Local 379 (Fassbach Electric Co.), 230 NLRB 626, 630 (1977). INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 11 Cir. 1974). In this regard, Respondent argues that its actions to cause the suspension of Johnson were part of its nonarbitrary and nondiscriminatory policing of its hiring hall operations. I find no merit to the defenses raised by Respondent in its brief. While Respondent argues there can be no violation since there is no evidence that the employer-members of SEFEPA discriminated against Johnson based on his union activity, Board law has long held that a Section 8(a)(3) violation is not a prerequisite to finding a violation of Section 8(b)(2). See Radio Officers’ Union of Commercial Telegraphers Union v. NLRB, 347 U.S. 17, 53–54 (1954). Contrary to Respondent’s next argument, there is ample evidence that it influenced the LRC to suspend Johnson: Dixon requested the LRC to take this action and two of Respondent’s executive board members participated in the LRC’s deliberations and voted to suspend Johnson. As to its argument that there can be no Section 8(b)(2) violation because no Section 8(b)(1)(A) violation has been established, Respondent cited no case supporting such a proposition. Moreover, as detailed in the section below, General Counsel has proven a Section 8(b)(1)(A) violation, as well. Finally, Respondent’s argument that the “internal union affairs” proviso in Section 8(b)(1)(A) “provides a ‘protective and absolute shield’ for the LRC’s decision to suspend Johnson,” misapplies the cited decisions. For example, in Scofield v. NLRB, 394 U.S. 423 (1969), the Supreme Court made clear that unions were free to adopt internal rules only if those rules were within the legitimate interest of the labor organization. Id. at 430. In the instant case, however, Respondent’s enforcement of rule 14 was not in its legitimate interest because it was done to retaliate against Johnson for engaging in protected dissident activities and thus impaired the policies imbedded in Sections 8(b)(1)(A) and 8(b)(2). Respondent has therefore failed to rebut the presumption of unlawfulness by demonstrating that the suspension was neces- sary to the operations of its hiring hall. Johnson’s conduct at the shape up did not violate rule 14 because there was no phys- ical or verbal assault. The credited evidence shows that John- son did not engage in any offensive touching of any officer, did not threaten violence, and did not make threats of any kind. To the contrary, he only engaged in protected dissident activity by seeking to assert his contractual right of seniority to get on an earlier work shift. Absent any violation of hiring hall rules, there was no misconduct to rectify. Second, even assuming arguendo that Johnson had assaulted a Union officer, Respond- ent had other means to discipline him unrelated to his liveli- hood. For example, by the terms of rule 14, the Union could have issued a fine. Respondent also could have issued Johnson a written reprimand for any misconduct. (Tr. 432.) Based on the foregoing, Respondent violated Section 8(b)(2), as alleged. The Section 8(b)(1)(A) Allegation The General Counsel alleges, in paragraph 8(a) – (f) and par- agraph 9 of the complaint, that Respondent’s actions causing Johnson to be suspended from work were arbitrary, discrimina- tory, and in bad faith. As discussed above, the credible evi- dence shows that Respondent engaged in discriminatory con- duct by urging the LRC to suspend Johnson from the hiring hall for 30 days—thereby precluding his employment by any em- ployer-member of SEFEPA—in response to his protected dissi- dent activities. This conduct was retaliatory and thus violated Section 8(b)(1)(A). Teamsters Local 735-S (Bemis Co., Inc.), 369 NLRB No. 97, slip op. at 5. This finding of discrimination is not dependent on the exclusive nature of Respondent’s hiring hall. Teamsters Local 657 (Texia Productions), 342 NLRB 637, 645 (2004). Based on the foregoing, I find that Respond- ent violated Section 8(b)(1)(A), as alleged. CONCLUSIONS OF LAW 1. Respondent International Longshoremen’s Association, Local 1526, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 2. Respondent operates an exclusive hiring hall or referral system pursuant to which it refers individuals for employment with the employer-members of SEFEPA. 3. Florida International Terminal, LLC, is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 4. Florida International Terminal, LLC, is an employer- member of SEFEPA. 5. By attempting to cause, and causing, the Labor Relations Committee to suspend employee Vendel Johnson from all hir- ing hall referrals from October 5 through November 4, 2021, to the employer-members of the Southeast Florida Employer Port Association, Inc., which had a foreseeable adverse impact on the employment opportunities of Johnson, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(b)(1)(A) and 8(b)(2) of the Act. 6. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent ILA Local 1526 engaged in certain unfair labor practices, I recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As to the latter, having found that suspension of Vendel Johnson was unlawful, I recommend that Respondent make Johnson whole by payment of a sum of money equal to the loss of earnings and other bene- fits he suffered as a result of the discrimination against him. Respondent shall make Johnson whole for any losses of pay and benefits suffered as a consequence of its efforts to cause his suspension, with interest calculated at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), computed daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). Tax compensation and Social Security reporting shall be in accordance with AdvoServ of New Jersey, Inc., 363 NLRB 1324, 1324 (2016). Respondent shall be required to request that the LRC rescind the unlawful suspension decision issued to Johnson on October 5, 2021, and to inform him that this has been done. Respondent shall be required to expunge from its files any references to the unlawful suspension imposed on Johnson and notify him and the Regional Director for Region 12, in writing, that this has been done and that this unlawful employment action will not be used against him in any way. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 Respondents shall post at its Port Everglades, Florida, facili- ty copies of the attached notice marked “Appendix.” Respond- ent shall also mail and email to Johnson a copy of the notice. In the complaint and brief, General Counsel seeks two en- hanced remedies: payment of consequential damages (including compensation for emotional distress) and issuance of a letter of apology to Johnson. As to consequential damages, while I recognize that the Board has broad discretionary authority to fashion make-whole remedies that will best effectuate the poli- cies of the Act, I am bound to follow existing Board law, which does not authorize me to award consequential damages. Ac- cordingly, I decline to recommend such damages since this request is appropriately directed to the Board itself. As to a letter of apology to Johnson, I believe that a notice posting and emailing is the most appropriate vehicle by which Respondent can communicate to the Charging Party and others that it has infringed on Section 7 rights, will refrain from such conduct going forward, and will take affirmative steps to address that infringement. Accordingly, I decline to order a letter of apolo- gy. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended13 ORDER Respondent International Longshoremen’s Association, Lo- cal 1526, its officers, agents, and representatives, shall 1. Cease and desist from (a) Causing or attempting to cause Florida International Terminal, Inc. (FIT), or any other employer-member of SEFEPA, to discriminate against employees in violation of Section 8(a)(3) and/or (1) of the Act. (b) Restraining or coercing employees by recommending that the Labor Relations Committee (LRC) suspend them from the hiring hall or otherwise adversely affect their employment opportunities as a means of retaliating against those employees for having engaged in protected dissident activities, including filing internal union grievances and criticizing union officers for the way they operated the Union’s hiring hall. (c) In any like or related manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative actions necessary to effec- tuate the policies of the Act (a) Make Vendel Johnson whole for any loss of earnings and other benefits suffered as a result of his unlawful suspension from the hiring hall. Additionally, Respondent shall pay him interest computed and compounded daily as prescribed in New Horizons, 283 NLRB 1173 (1987), and Kentucky River Medical Center, 356 NLRB 6 (2010), accrued to the date of payment, minus tax withholdings required by Federal and State law. (b) Within 21 days from the date of the Board’s Order, file a report with the Regional Director for Region 12 allocating backpay to the appropriate calendar years. The Regional Direc- 13 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. tor will then assume responsibility for transmission of the re- port to the Social Security Administration at the appropriate time and in the appropriate manner. (c) Compensate Johnson for the adverse tax consequences, if any, of receiving his backpay in one lump sum. (d) Within 14 days from the date of the Board’s Order, rec- ommend that the LRC rescind the unlawful suspension decision issued to Johnson on October 5, 2021, and to inform him that this has been done. (e) Within 14 days from the date of the Board’s Order, re- move from its files, and ask FIT to remove from its files, any reference to the suspension of Johnson, and within 3 days thereafter notify him in writing that it has done and that it will not use the reports against him in any way. (f) Post as its Port Everglades, Florida, facility copies of the attached notice marked ”Appendix.”15 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 con- secutive days in conspicuous places, including all places where notices to employees and members are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intra- net or internet site, and/or other electronic means, if the Re- spondent 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) Deliver to the Regional Director for Region 12 signed copies of the notice in sufficient number for posting by FIT at its Port Everglades, Florida, facility, if it wishes, in all places where notices to employees are customarily posted. (h) Within 21 days after service by the Region, file with the Regional Director for Region 12 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. November 17, 2022 APPENDIX NOTICE TO EMPLOYEES AND MEMBERS 15 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees 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 the Board’s 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.” INTERNATIONAL LONGSHOREMEN’S ASSOCIATION 13 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 no- tice. 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 restrain or coerce you in the exercise of any of these rights. Specifically: WE WILL NOT cause or attempt to cause Florida Internation- al Terminal, LLC, or any employer-member of the Southeast Florida Employer Port Association (SEFEPA) to suspend you from employment because you file internal union grievances against or criticize any union officer or official. WE WILL NOT cause or attempt to cause you to be suspend- ed or suffer any adverse employment action for filing internal union grievances against or criticizing any union officer or official. WE WILL NOT in any like or related manner restrain or co- erce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make Vendel Johnson whole for any loss of earn- ings or other benefits resulting from his 30-day suspension, less any net interim earnings, plus interest. WE WILL compensate Vendel Johnson for the adverse tax consequences, if any, of receiving a lump-sum backpay award. WE WILL, within 14 days from the date of the Board’s Or- der, recommend that the LRC rescind its decision to suspend Vendel Johnson for 30 days and to inform him that this has been done. WE WILL, within 14 days from the date of the Board’s Or- der, remove from our files any reference to the suspension of Vendel Johnson, and WE WILL, within 3 days thereafter, notify him that this has been done and that this unlawful suspension will not be used against him in any way. INTERNATIONAL LONGSHOREMAN’S ASSOCIATION, LOCAL 1526 The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/12-CB-285734 or by using the QR code below. Alternatively, you can obtain a copy of the deci- sion from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.