Metals Processing Corp.

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1329 International Longshoremen's Association, Local 1329 (Metals Processing Corp.) and Peter Vierra. Case 1-CB-4491 September 17, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 26, 1980, Administrative Law Judge Steven B. Fish issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, to modify his remedy,2 and to adopt his recommended Order.3 The complaint as amended alleges in substance that In- ternational Longshoremen's Association, Local 1329, herein called Respondent, violated Section 8(b)(1)(A) and (2) of the Act by refusing to select Vierra as the relief winchman employed by Metals Processing Corp., herein called MPC, because he filed charges and/or gave testimony under the Act. The hearing in the above matter was heard before me in Boston, Massachusetts, on October 25 and 26. During the course of the hearing, the General Counsel amended the complaint to allege that Respondent violated Section 8(b)(1)(A) of the Act by threatening its members with re- prisals because they filed charges and/or gave testimony under the Act. The record was left open pending receipt of certain additional exhibits into evidence to be submitted by the General Counsel. Not having received said exhibits, on February 15, 1980, I issued an Order that these exhibits be submitted on or before March 4, 1980. The additional exhibits were received on March 3, 1980. Counsel for Respondent, by letter dated March 6, 1980, agreed to the admissability of these exhibits of the General Counsel. A brief has been received from the General Counsel, and has been carefully considered. Upon the entire record, including my observation of the demeanor of the witnesses, I make the following: ORDER FINDINGS OF FACT ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, International Longshoremen's Association, Local 1329, Provi- dence, Rhode Island, its officers, agents, and repre- sentatives, shall take the action set forth in the said recommended Order. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. See Isis Plumbing d Heating Ca, 138 NLRB 716 (1962), for the rationale on interest payments. 3 In accordance with his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. DECISION STATEMENT OF THE CASE STEVEN B. FISH, Administrative Law Judge: Pursuant to charges and amended charges filed by Peter Vierra, herein called Vierra, a complaint was issued on May 15, 1979,' and amended on July 20, by the Regional Direc- tor for Region , on behalf of the General Counsel. I All dates are in 1979 unless otherwise stated. I. JURISDICTION MPC is now, and has been at all times material herein, a corporation organized and existing by virtue of the laws of the State of Rhode Island. MPC maintains its principal office and place of business at Municipal Wharf, New Avenue, in the city of Providence, and State of Rhode Island (herein called the Wharf), and is now and continuously has been engaged at said Wharf in the recycling, sale, and distribution of metals and related products. MPC annually receives materials at its Rhode Island Wharf from points outside the State of Rhode Island valued in excess of $50,000. In addition, MPC annually ships materials from its Rhode Island Wharf to points outside the State of Rhode Island valued in excess of $50,000. Respondent admits, and I so find, that MPC is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted and I find that Respondent is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prior Related Cases.- 1-CB-4095, 1-CB-4157, and 1-CA-14748 Pursuant to charges and amended charges filed by James Wesley, Jr., herein called Wesley, a complaint was issued on April 25, 1978, amended on July 24, 1978, and consolidated for hearing on September 1, 1978, respec- 252 NLRB No. 38 229 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively by the Regional Director for Region I on behalf of the General Counsel. The complaint and consolidated complaints alleged that Respondent caused and attempted to cause ITO Corporation of Rhode Island, Inc., herein called ITO, to discharge Wesley from his position as walking foreman, caused and attempted to cause ITO not to employ Wesley as a relief winchman, and prevented Wesley from bringing his discharge or removal as a walking foreman before the union membership, for the reasons that he filed charges and or gave testimony under the Act. The hearing of the above cases was heard before Ad- ministrative Law Judge Elbert D. Gadsden on Septem- ber 13 and 14, 1978. During the course of the hearing Peter Vierra testified along with a number of others as witnesses for the General Counsel in connection with the alleged discrimination against Wesley. Administrative Law Judge Gadsden issued his decision on June 7, 1979, finding that Respondent violated Sec- tion 8(b)(1)(A), (B), and (bX2) of the Act by demanding that ITO demote or discharge Wesley, by objecting to ITO hiring him as a relief winchman, and by disallowing Wesley to process his grievance in accordance with standardized grievance procedures because he had filed charges with the National Labor Relations Board. Vierra testified at the prior hearing that he had worked under Wesley for ITO but never had any trouble with him as a walking foreman. This testimony, which was corroborated by George Santos and Rudolph Gomes, was specifically referred to and relied upon by Administrative Law Judge Gadsden in his decision, in order to discredit the testimony of Raymond Silva, presi- dent of Respondent, that union members did not want to work under the supervision of Wesley. 2 On December 9 the Board issued its Decision and Order, ITO Corporation of Rhode Island, Inc., 246 NLRB No. 122 (1979), affirming the bulk of Administrative Law Judge Gadsden's findings and conclusions, including his finding that Respondent violated Section 8(b)(1)(A) and (2) of the Act by causing Wesley not to be employed as a relief winchman. The Board's decision specifically found that "as it is clear from the record that the Union's hostility toward Wesley's activities at union meetings carried over to and influenced its adamant refusal to ap- point him relief winchman, a position for which he was qualified, the Administrative Law Judge correctly found that the Union violated Section 8(b)(1)(A) and 8(b)(2)." B. Respondent's Contract With MPC and Past Practice Relating to the Selection of Relief Winchman Respondent has been the collective-bargaining repre- sentative of all employees performing work pertaining to the rigging of ships, the cooling of same, the loading and unloading of all cargoes, including mail, ships' stores and baggages, and the handling of lines in connection with the docking and undocking of ships in the Port of Provi- dence, Rhode Island, and vicinity, employed by MPC, 2 Silva had defended Respondent's action in seeking Wesley's removal as walking foreman, on the basis of the alleged union members' refusal to work under Wesley. by virtue of MPC's membership in the Rhode Island Shipping Association, herein called the Association. The last contract between Respondent and the Association expired on September 30, 1977. The parties negotiated from October 1977 to Decem- ber 1978, and a new contract was signed in December 1978, retroactive to October 1977. During the course of the negotiations, the parties entered into various provi- sional agreements concerning various subjects, which were implemented immediately upon agreement, al- though the new contract was not executed until Decem- ber 1978. One of the provisional agreements concerned the se- lection of relief winchmen. In the past the position of relief winchman 3 had been considered a staff position, and was selected exclusively by the Employer. The pro- visional agreement provides that Respondent has the ex- clusive right to select the individual as the relief winch- man. 4 The provisional agreement in this area was agreed to and implementation commenced sometime between Oc- tober 1977 and February 1978.6 At MPC, from 1976 through approximately March 1977, the positions of relief winchmen were filled primar- ily by Antone Miranda and Matthew Bento. As of March 9, 1977, Vierra was chosen to replace Bento, who went on disability." From March 9, 1977, through mid- December 1978, Vierra and Miranda were employed reg- ularly as relief winchmen for MPC. The system in effect at MPC resulted in Miranda and Vierra alternating in the position depending upon hours worked, where only one position was available. 7 Where there were two positions available, they would both be chosen, except for the weeks that Vierra was chosen as walking foreman.8 When Respondent began selecting the individuals for the relief winchman's position (whether to be October 1977 or February 1978), they continued to select Vierra and Miranda as MPC's relief winchmen in the same fash- ion as they had been selected by MPC.9 a All parties agree that the position of relief winchman is a highly pre- ferred and sought after position. There is a 10-cent-per-hour differential in pay, and the job generally requires very little physical work. 4 The provisional agreement also provided that other staff positions, such as walking foreman, also previously selected by the Employer, would be chosen jointly by Respondent and the Employer. Silva was uncertain in his testimony as to the date of the implementa- tion of the provisional agreement. Upon being confronted with his own testimony in the prior hearing, he admitted that since October 1, 1977, Respondent has been selecting the relief winchman for MPC. The prior Board decision, however, found that Respondent began selecting the relief winchman for ITO, a different employer, but in the same Associ- ation, in February 1978. 1 find this discrepancy to be largely irrelevant to the disposition of this case, and I shall not make a finding as to the exact date Respondent began selecting the relief winchman position at MPC. K Although Miranda and Vierra testified that Vierra began as regular relief winchman sometime in 1976, the records reveal that Vierra was first selected for the position during the week of March 9, 1977. 7 Only three times during this period, the weeks of July 6, and 20, 1977. 8 About 13 times between March 1977 and December 1978. 9 I discredit Silva's testimony that when Respondent began selecting the position they began a rotation system of selecting equally among 25- 26 eligible members for the job. The records of MPC corroborate Vier- ra's testimony, and establish clearly that from either October 1977 or February 1978 to December 20, 1978, Vierra was regularly selected as Conrinued 230 INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1329 C. The Union Meeting of December 12, 1979, and Respondent's Subsequent Refusal To Select Vierra as a Relief Winchman On December 12, 1978, a union meeting was held at Respondent's hall for the election of officers. After the election was completed, Silva said that now that the election was out of the way, there was something that he wanted to say to the membership. He stated that the "four rats" had gone to the NLRB to testify against the Union, and that he wanted the membership to know that the four "lying bastards" would "get theirs." Member George Santos (one of the members who tes- tified in the prior case on behalf of Wesley) replied that he was not a liar and that he had told the truth at the NLRB hearing. Silva then mentioned the fact that Respondent was going to run a testimonial, for the past president, Arthur Soares. Vierra asked if the testimonial was compulsory and Silva replied no. Vierra replied that he would not be attending because he felt that the Union had acted un- fairly in cutting off payments which had been made to Respondent's founder's widow. Silva answered that he didn't "give a f-" if Vierra attended or not. Vierra told Silva that he could go "f- himself" too, and then re- ferred to Silva's prior remark concerning the NLRB. Vierra said that Silva had earlier in the meeting accused four "bastards" of lying to the NLRB in the Jim Wesley case and that he (Vierra) had told the truth at the hear- ing, and "you and your crew was the one that went up there and lied not us." Silva then repeated that the testimonial was not com- pulsory, and added that "you don't have to attend shit. We take care of our own. But every dog has his day and you will get yours.' On December 15, 1978, 3 days after the meeting, a ship came in under MPC and two relief winchmen were required. Vierra, expecting to be selected as per usual, tapped Barry O'Connor, vice president of Respondent and shop steward at MPC, on the shoulder and told him that he (Vierra) was here. O'Connor replied, "Oh, no, from now on the union will be picking the relief winch- man. The only relief winchman on the waterfront is Antone Miranda." Vierra then asked Silva what he had to say about that, and Silva answered, "I am not talking to you." Someone else was selected as relief winchman. The next day again there were openings for relief winch- men, Vierra was present and was not chosen. He was se- lected for a job on the bucket in one of the gangs. The records of MPC reveal that for the week of De- cember 20, 1978, the relief winchmen selected were Robert Magnett, Avelino Rose, and Raymond Silva. On December 26, 1978, the SS Tea Forres, an MPC ship, came in. Vierra was available and was not chosen relief winchman by Respondent for MPC, except where he was chosen as walking foreman. o The above recitation as to the events of the December 12 meeting is based on a composite of the testimony of Vierra, Matthew, and Steven Bento as well as Silva. Silva admitted referring to the four guys who tes- titled in the NLRB hearing against the Union as "rats," accusing them of lying, and stating that these men "would get theirs." He also admitted that the four people that he was referring to were Wesley, Vierra, Santos, and Rudolph Gomes. for the relief winchmen's positions. MPC's records reveal that for the week ending December 27, 1978, Magnett, Rose, Miranda, and Richard Conway were chosen as relief winchmen. On December 29, 1978, Vierra filed a charge against Respondent in Case No. 1-CB-4377, alleging that Re- spondent caused Vierra not to be employed as relief winchman in violation of Section 8(bX)(1)(A) and (2) of the Act. The Regional Director approved the withdraw- al of this charge on February 1, 1979. On March 2, Vierra asked O'Connor about the relief winchmen's position on the Tsangaris, an MPC ship, which had just come in. O'Connor replied that Silva was doing the picking. O'Connor then had a conversation with Silva. The record does not reveal the contents of the conversation between Silva and O'Connor. Vierra then asked Silva about the relief winchmen's job on the Tsangaris. Silva replied that he would pick when he got good and ready. Eventually Silva selected Henry John- son (Silva's brother) for the vacant position. Vierra filed the charges in the instant case on March 27, and amended charges on May 4, and June 25. Vierra testified further that in addition to the specific incidents of Respondent's failure to select him, set forth above, there were a number of other occasions (about 20-30 in total) where he was available for selection as relief winchman for MPC, the job was vacant, and he was not selected. He estimated that of these 20-30 occa- sions, about 8 or 10 times he was chosen as walking fore- man (by the Employer), and therefore he conceded that he would not have accepted the relief winchman's posi- tion. Vierra testified that he was not chosen as relief winchman for MPC by Respondent since the December 12 meeting. He did admit that he was selected by Re- spondent as relief winchman for a John T-Orr ship (an- other Association member) on the Sunday before the hearing herein commenced. Silva did not dispute or contradict the above testimony of Vierra, concerning Respondent's failure to select him as relief winchman, with the exception of the date of February 5, 1979. With respect to this date, Silva testified that he did in fact select Vierra as relief winchman for MPC on the ship Pindar. Silva's specific testimony was, "because I think it was going to be a situation with Mr. Vierra, I picked him." 2 Silva further testified that to his knowl- edge Vierra served as relief winchman on that day, but admitted that he might have been upgraded to a walking foreman on another boat that came in. Respondent submitted records in support of its conten- tion that Vierra was selected and served as relief winch- man on the Pindar. These records are sheets which are prepared by Raymond T. Sylvia, timekeeper of MPC, and a member of a sister local to Respondent. The docu- " Miranda was chosen for the other relief winchman's position. MPC's records for the week ending March 7, 1979, reveal that Johnson, Miranda, and Joseph DiPina were chosen as relief winchmen for MPC for that week. '1 Silva did not explain what he meant by his reference to a "situa- tion" with Vierra, but I find that it is obvious that he was referring to the charges that Vierra had filed with the Board pertaining to his assignment as relief winchman. 231 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments are entitled Local 1329, ILA, and refers to MPC's ship, the Pindar, with the date of February 5, 1979 (the first day the ship was in port) in the upper left-hand corner. The documents then list a series of names of em- ployees, as well as a listing of numbers of hours worked for each employee on particular days. The document lists February 5 through February 14, and then another page goes on to list days February 15 through February 24. Also listed on the first page of the document next to various names are symbols, such as "R/W," and "S/F," which signifies relief winchman and staff foreman (identi- cal to walking foreman). Next to Vierra's name on this document is "R/W." In addition for the dates February 5 through February 12, "X" is listed for Vierra, which indicates that he did not work on that ship, on those days. For February 13 through February 14 the number "8" is listed for Vierra, which indicates that he worked 8 hours on the ship. The next page of the document where Vierra is listed with no "R/W" next to his name, lists him as working 9 hours, February 15 and February 16, and 4 hours on February 22. Timekeeper Sylvia testified as to the procedure for the preparation of these documents. Sylvia goes to the hiring hall, and is told by Silva whom he has selected for the various staff positions, including relief winchman on a particular ship. Sylvia then writes down this information on scrap paper and returns to his office. At some later unspecified time, Sylvia will prepare the documents sub- mitted based on his notes, as well as the actual payroll records of MPC. Sylvia then gives a copy of these re- cords to Respondent, allegedly for its use in making ad- ditional selections. Vierra denies being chosen as relief winchman for MPC on the Pindar, and asserts that he worked on the Loveland from February 5 through February 12 as walk- ing foreman. Similar records prepared by Sylvia, for Re- spondent for Loveland, also introduced into evidence, corroborate Vierra, and list Vierra as foreman for Febru- ary 5 through February 12. The payroll records of MPC were also introduced into the record, and also corrobo- rated Vierra that he worked on the Loveland as foreman on these dates. In addition the payroll showed that Vierra worked on the Pindar on February 13, and Febru- ary 14 also as foreman, which is also consistent with Vierra's testimony. Thus there can be no doubt and I so find that Vierra did not serve as relief winchman on the Pindar at any time during February 1979. This still leaves the issue however of whether, as Re- spondent argues, Vierra was initially selected as relief winchman and then switched over to walking foreman when the Loveland came into port. No evidence was in- troduced as to which ship came in first, or the order in which Respondent made selections for these ships. Sylvia testified that he made the "R/W" entry next to Vierra's name on the document, but could not recall spe- cifically the circumstances. After examining the other re- cords, he was certain that Vierra had not served as relief winchman, and speculated that he had made a mistake in the entry. I find, based on the above evidence, as well as my evaluation of the demeanor of Vierra and Silva, that Re- spondent did not select Vierra as relief winchman for the Pindar, as Silva asserted. Silva testified that since Respondent has assumed the right to select the relief winchman, he has been follow- ing a rotation system, attempting to equalize as much as possible the position among the qualified winchmen, which Silva asserts to be about 24 or 25 individuals.3 He claims that he uses a list of all eligible winchmen and compares them with the records supplied to him by Sylvia in order to determine who should be selected. Further, Silva testified, in explanation of why Vierra was chosen so infrequently, that he chooses individuals only who are members of gangs' 4 who are out of work on a particular day for the relief winchman's position. He fur- ther explains that Vierra has a lot of seniority and is fre- quently working when the relief winchman's position be- comes available. Respondent also called Leroy Tucker, Robert Mag- nett, Joseph Varella, and Joseph DiPina as witnesses who testified that Silva does in fact rotate the selection of relief winchmen, and that during the times that they were selected for the position, their gangs were not working. Wesley testified that there have been frequent occa- sions when Silva has selected a relief winchman from a gang that is already working. He is corroborated in this testimony by Vierra as well as Anton Miranda who was called as Respondent's witness. Vierra testified specifical- ly that on March 2, 1979, when he was passed over for the position in favor of Henry Johnson on the Tsangaris, Johnson was taken by Silva from another boat for the relief winchman's job. An examination of the records of MPC, submitted into evidence, tends to dispute Silva's testimony as well as Respondent's other witnesses that Silva makes his choice for relief winchman on an equal rotation basis. For the time period between December 20, 1978, and October 3, 1979, the records reveal that a number of em- ployees have been chosen as relief winchman. In addition to Miranda being selected regularly,' 5 Daniel Joseph, Jr., acted as relief winchman for MPC for the weeks of February 21, March 28, July 26, and October 3. Joseph DiPina acted as relief winchman the weeks of February 21, February 28, and March 17.16 Richard Conway was appointed relief winchman during the weeks of December 27, 1978, January 10, Jan- uary 17, August 29, September 19, and September 26. Harold Fontes was relief winchman for MPC during the weeks of January 3, January 10, April 25, and May 2. David Roderick served as relief winchman during the weeks of February 7 and 14 and June 13 and 20, Regi- nald Rose, Jr. January 31, February 7, May 9, and May 15, and Robert Magnett on December 20 and 27, 1978, and April 11, 1979. " Silva testified further that there are a few qualified relief winchmen out of this list of 24-25 who have still not been selected. 14 The employees on the dock are divided into regular gangs of four or five members. 'i Miranda's status will be discussed more fully, infra '6 It is significant that both Joseph Jr. and DiPina testified as Respond- ent's witnesses in the prior hearing in September 1978. 232 INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1329 A comparison of Vierra's work record with these dates reveals that Vierra was available for work as a relief winchman on many of these occasions. For in- stance, during the week of March 28 when Joseph was selected for the second time since December 13, 1978,'7 Vierra was available as he was not acting as walking foreman. Joseph was again selected for the weeks of September 26 and October 3, while Vierra was again available for selection. For the week of April 11 when Vierra was not work- ing at all at MPC, Robert Magnett was selected as relief winchman along with Albert Lopes and Daniel Joseph, Sr. Magnett had already been appointed as relief winch- man for the weeks of December 20 and 27, 1978, which includes the week that Respondent began to refuse to select Vierra. Vierra was again not working during the week of April 25 and yet Fontes was selected as relief winchman, although Fontes had already been chosen for the position during the weeks of January 3 and 10. During the week of August 29, Vierra was also not working, while Conway, who had already served as relief winchman for the weeks of December 27, 1978, and January 10 and 17, 1979, was again chosen for the relief winchman's position. Accordingly, I find that the record establishes that from December 15, 1978, through October 3, 1979, Re- spondent has not followed an "equal" rotation system for selection of the relief winchman's position at MPC. I fur- ther find that the only kind of rotation system apparently applicable in regard to MPC, since December 15, 1978, was to rotate Vierra out of the position that he formerly had been regularly assigned to by both the Employer and Respondent itself. s I further find, based on demeanor of the witnesses, the records of MPC, and my assessment of the probabilities of the situation, that Silva is not to be credited in his tes- timony that he only selects relief winchmen from gangs who are out of work. Silva testified, with respect to Miranda, that he is the only individual eligible to be relief winchman who is not a regular member of a gang, and therefore, if not chosen as relief winchman, would be out of work. Therefore Miranda, according to Silva, has still been chosen as a regular relief winchman for MPC, as an exception to Re- spondent's alleged rotation system. Vierra, in late February, spoke to Silva about Miranda being the only regular relief winchman. Silva explained that Miranda did not belong to a gang, and that is why he is the only official relief winchman. Vierra said that he would give up his gang membership, as well, in order to be a regular relief winchman. Silva responded, "no, it's too late now." Joseph DiPina, testifying as Respondent's witness, ad- mitted that while working for ITO, in March 1978, he acted as a regular relief winchman, until, according to 1" Joseph had been appointed as relief winchman on February 21. " Even apart from failing to choose Vierra, it is clear that Respondent has not been equally rotating the position. Silva himself testified that a couple of eligible individuals have still not been chosen for the position. Yet aa set forth above, Joseph, Conway, Fontes, Roderick, and Rose, each served during 4 weeks as relief winchmen for MPC. DiPina, after the prior NLRB hearing, in September 1978, when DiPina testified, that everyone began to be rotated at ITO for the position. This testimony further reinforces my conclusion set forth above, that Respondent in its alleged rotation system, does not equally distribute the relief winchman position, and that the selection is made on the basis of the unbridled discretion of Silva and the other union offi- cials. IV. CONCLUDING FINDINGS The record established that Silva at the union meeting of December 12, 1978, accused four people, including Vierra, of being four "lying rats" and "bastards" at the prior NLRB hearing, and threatened that they would "get theirs." After Vierra disputed Silva's accusations and asserted that it was the Union's witnesses who had lied, Silva threatened Vierra individually by saying that "every dog has his day" and that he, Vierra, would "get his." I find these comments by Silva to be implied threats of reprisals to Vierra and the other witnesses because of their testimony at the prior NLRB hearing and therefore, in violation of Section 8(bX1)(A) of the Act.'9 I find further that Respondent, through Silva, carried out its threats to "get" Vierra, on December 15, 1978, 3 days after the union meeting, by refusing to select him as MPC's relief winchman, and by its continued refusal to thereafter select Vierra for this position. The record establishes that for a period of at least 10 months, and possibly 14 months after Respondent com- menced selecting MPC's relief winchmen, it selected Vierra as well as Miranda as the regular relief winchmen for that Employer. Suddenly 3 days after the union meeting of December 12, 1978, Respondent decided that, from then on, only Miranda would be chosen as regular relief winchman. From that date, and continuing at least through the date of the hearing herein, Respondent has failed to choose Vierra for the position of relief winch- man for MPC. There can be very little doubt that Respondent's ac- tions in this regard were motivated by the events at the December 12, 1978, meeting, as well as the prior NLRB hearing. As noted above, Respondent unlawfully threat- ened Vierra and the other witnesses who testified at the NLRB hearing against Respondent with reprisals be- cause of said testimony. Vierra spoke up at the meeting, reasserted the truth of his testimony, disputed Silva's contention that he had lied, and accused the union wit- nesses of being the ones who lied at the hearing. Accord- ingly, the inference is warranted that Respondent has re- fused to select Vierra as relief winchman because of his testimony at the NLRB hearing in September 1978 and his defense of said testimony expressed to Silva at the L9 Operative Plasterers' and Cement Masons' International Association of the United States and Canada. etc. (Arthur G. McKee & Company), 189 NLRB 553 (1971); Painters' Local Union No. 13555, affiliated with Interna- tional Brotherhood of Painters and Allied Trades, AFL-CIO (Alaska Con- tractors, Inc.), 241 NLRB 741(1979). 233 DECISIONS OF NATIONAL LABOR RELATIONS BOARD December 12 meeting. Such conduct by Respondent is in violation of Section 8(b)(l)(A) and (2) of the Act.2 0 An examination of Respondent's defenses only serves to reinforce my conclusion, as set forth above, that Re- spondent has refused to select Vierra for unlawful rea- sons. 2 1 Silva testified that since Respondent began selecting the position (either in October 1977 or February 1978), he has chosen the relief winchmen on an equal rotation basis. As noted I have found Silva's testimony to be con- tradicted and refuted by documentary evidence as well as credited testimony of other witnesses. Thus Vierra was selected regularly by Respondent for at least a 10- month period, notwithstanding its alleged rotation system. Moreover, the rotation system which was put into effect, 3 days after the December 12 meeting, was far from being an equal rotation system. Other individ- uals were chosen on a number of occasions when Vierra was available for the position of relief winchman, includ- ing, significantly, Joseph and DiPina, who testified on behalf of Respondent at the prior NLRB hearing. Even its explanation for continuing to employ Miranda as a regular relief winchman while rotating the others alleg- edly because Miranda was not a regular member of a gang, I find to be pretextual. Thus, Vierra, when he was given this explanation for Miranda retaining his position as regular relief winchman for MPC, offered that he too would be willing to remove himself from a gang in order to retain his old position as relief winchman. Silva re- fused Vierra's offer, telling him that it was too late. Ac- cordingly, as I have found above, the only objective as- sessment that can be ascertained from this record pertain- ing to Respondent's rotation system since December 15, 1978, was that Vierra was rotated out of being selected for the position. 22 Therefore, the evidence is sufficient to tO Local 624. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of United States and Canada, AFL-CIO (Power Piping Company), 211 NLRB 942 (1970); Construction, Building Drivers. Local Na 83, affiliated with the International Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of America (Dooley's Building Materials Inc), 233 NLRB 509 (1977); Alaska Contractors. supra. 21 In addition to finding that Respondent refused to select Vierra be- cause of his testimony at the hearing and his defense of same at the union meeting, an issue is raised as to some of Vierra's other comments at the meeting, unrelated to the NLRB hearing. More specifically, I refer to Vierra having criticized Respondent's failure to provide a pension to a former founder's widow, and his refusal to attend, therefore, a testimonial dinner for a current official, and his argument about same with Silva. I find that an inference would be warranted that these comments by Vierra at the union meeting also contributed to Respondent's decision not to refer Vierra to the position of relief winchman. This would be additional support for a finding that Respondent violated Sec. 8(bX)(1)(A) and (2) of the Act. See ITO Corporation, supra. However, the General Counsel has not alleged this theory of a violation in the complaint and has not amend- ed the complaint to reflect this allegation, although I specifically asked whether or not he was alleging such a theory. In these circumstances I shall not make such a finding herein. I note that the remedy would not be significantly altered even were I to find a violation based on this alle- gation as well. 2 The Board has found in ITO Corporation, supra, that this same Re- spondent has not utilized any objective criteria in selecting relief winch- men from members qualified for such vacancies and that Respondent vio- lated the Act in refusing to refer Wesley as relief winchman, independent of any showing of hostility toward Wesley stemming from his union ac- tivities, citing Local Union No. 174, International Brotherhood of Team- srers. Chauffeurs. Warehousemen and Helpers of America, (Totem Bever- ages, Inc.), 226 NLRB 690 (1976). This conclusion is equally applicable to establish, and I so find, that Respondent's failure to select Vierra as relief winchman for MPC, violated Section 8(b)(1) and (2) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirm- ative action designed to effectuate the policies of the Act. Having found that Respondent violated the Act by re- fusing to select Vierra as MPC's relief winchman, a posi- tion that Vierra had formerly been regularly selected for, I deem it appropriate to recommend that Respondent be ordered to refer Vierra to his previous position as one of the two regularly appointed relief winchmen for MPC. Additionally, I shall recommend that Respondent be or- dered to notify MPC in writing that it has no objection to Vierra's referral for hire as a relief winchman. See ITO Corporation, supra. Respondent should also be or- dered to make Vierra whole for any loss of earnings he may have suffered as a result of the failure to appoint him to the relief winchman's position. The backpay pro- vided herein shall be computed, with interest, in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). In addition, in view of the fact that Respondent has previously been found by the Board in ITO Corporation, supra, to have committed violations, similar in nature to the violations which I have found, I deem it appropriate to recommend that a broad cease-and-desist order be issued against Respondent. Cf., Hickmott Foods, Inc., 242 NLRB 1357 (1979). The General Counsel requests that Respondent be or- dered to pay the costs of this proceeding, alleging that Respondent's defenses were frivolous, citing Tiidee Prod- ucts, Inc., 194 NLRB 1234 (1972). 1 find that the record does not establish that Respondent's defenses were frivo- lous and shall not recommend that it be ordered to pay costs. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW i. Metals Processing Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Longshoremen's Association, Local 1329, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. the instant case, and it is therefore not even necessary in order to estab- lish a violation herein, that Vierra's testimony or filing of charges be found to have motivated the Union's action. Thus I have found that the selection of the relief winchmen by Respondent was left within the unbri- dled discretion of a few officials, and was unlawful. Local 394, Laborers' International Union of North America. AFL-CIO (Building Contractors As- sociation of New Jersey), 247 NLRB No. 5 (1980). 234 INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1329 3. By failing and refusing to select Peter Vierra as relief winchman for MPC, and by causing MPC not to employ Vierra as a relief winchman, because he filed charges or gave testimony at the National Labor Rela- tions Board, Respondent violated Section 8(b)(l)(A) and (b)(2) of the Act. 4. By threatening its members with reprisals because they filed charges and/or gave testimony at the National Labor Relations Board, Respondent has violated Section 8(b)(1)(A) of the Act, by attempting to coerce and threaten employees to restrict their access to Board proc- esses. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 23 The Respondent, International Longshoremen's Asso- ciation, Local 1329, its officers, agents, and representa- tives, shall: 1. Cease and desist from: (a) Threatening or coercing employees in their access to the National Labor Relations Board, herein called the Board, by threatening them with reprisals because of their having filed charges with or given testimony at the Board. (b) Refusing to select Peter Vierra as relief winchman for Metal Processing Co., herein called MPC, or any other employer or causing MPC or any other employer, not to employ Vierra as relief winchman, because he filed charges with or gave testimony at the Board. (c) In any other manner restraining or coercing em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Refer Peter Vierra to his previous position of regu- lar relief winchman for MPC, and notify MPC in writing that it has no objection to Vierra's referral for hire as a relief winchman. (b) Make whole Vierra for any loss of earnings suf- fered by reason of the discrimination against him, with interest in the manner described in the section of this De- cision entitled "The Remedy." (c) Post at Respondent's office and place of business, copies of the attached notice marked "Appendix."2 4 No- s In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. "4 In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Region , after being signed by an authorized representa- tive of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter in conspicuous places, including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Mail to the Regional Director for Region I addi- tional copies of the attached notice for posting by MPC if MPC is willing. (e) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. We hereby notify you that: WE WILL NOT threaten or coerce employees in their access to the National Labor Relations Board, herein called the Board, by threatening them with reprisals because of their having filed charges with or given testimony at the Board. WE WILL NOT refuse to select Peter Vierra as relief winchman for MPC or any other employer, or cause MPC not to employ Vierra as relief winch- man, because he filed charges with or give testimo- ny at the Board. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guar- anteed them in Section 7 of the Act. WE WILL refer Peter Vierra to his previous posi- tion as regular relief winchman for MPC, and notify MPC in writing that it has no objection to Vierra's referral for hire as a relief winchman. WE WILL make Peter Vierra whole for any loss of earnings suffered by reason of the discriminatory refusal to select him as relief winchman, with inter- est. All our members are free to file charges with and tes- tify at the National Labor Relations Board without fear of any reprisals by us or any refusal to refer said mem- bers by us because of said charges or testimony. INTERNATIONAL LONGSHOREMEN'S Asso- CIATION, LOCAL 1329 235