Eller Maritime Services, LLC

National Labor Relations Board - Administrative Judge Opinions

Oct 25, 2006

12-CB-005579 (N.L.R.B. Oct. 25, 2006)

JD(NY)–47-06
Tampa, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,
LOCAL 1402, AFL-CIO
(ELLER MARITIME SERVICES, LLC)
and Case No. 12-CB-5579
MALCOLM BLACK, SR., An Individual
Rachel Harvey, Esq., Counsel for the General Counsel.
Frank Hamilton, III, Frank Hamilton & Associates, P.A., Counsel for Respondent.
DECISION
Statement of the Case
JOEL P. BIBLOWITZ, Administrative Law Judge: This case was heard by me on
September 18, 2006 in Tampa, Florida. The Complaint herein, which issued on June 30, 20061
and was based upon an unfair labor practice charge filed on March 13 by Malcolm Black, Sr.,
alleges that International Longshoremen’s Association, Local 1402, AFL-CIO, herein called
Respondent, failed and refused to refer Black to employment through its exclusive hiring hall
arrangement with Eller Maritime Services LLC, herein called Eller, on March 13, for reasons that
are unfair and arbitrary, and are in direct departure from its announced hiring hall procedures, in
violation of Section 8(b)(1)(A) and (2) of the Act.
Findings of Fact
I. Jurisdiction
Respondent admits, and I find, that Eller has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
II. Labor Organization Status
The Respondent admits, and I find, that it has been a labor organization within the
meaning of Section 2(5) of the Act.
III. The Facts
Eller is engaged at its Tampa, Florida facility in providing stevedoring, baggage handling
and related services to the public at Channelside, a docking facility for cruise ships of the
Holland America and Carnival Lines. The Respondent admits that it operates an exclusive hiring
hall for the referral of employees for employment with Eller at Channelside. In operating this
hiring hall, the Respondent has two “shapes” in the morning. There is a 7:00 a.m. shape for the

1 Unless indicated otherwise, all dates referred to herein relate to the year 2006.
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8:00 a.m. to 4:00 p.m. shift, and an 11:00 a.m. shape for the 12:00 Noon to 4:00 p.m. shift.
James Harrell, vice president of the Respondent, has been in charge of the hiring hall since
about 2001.
Black is a member of the Respondent and has been referred to work out of its hiring hall
since 1977, principally as a porter or scanner. The three most prevalent jobs referred by the
Respondent to Eller at Channelside for the cruise ships are porters, who handle the travelers’
luggage, scanners, who take the luggage and put it through the scanning machine to be
checked for security purposes, and “the store,” employees who take groceries and put it on the
cruise ship shelves, apparently, for restocking of its food supplies for the next cruise. Porters
are assigned to work in groups called gangs and the leader of each gang, the header, chooses
the individuals at the shape who will work on the gang based upon seniority. The shape days
vary depending upon when the cruise ships leave and return. Harrell testified that sometime
after 5:00 p.m. he receives work orders from Eller stating the number of employees that they will
need the following day. After receiving this work order, he posts a notice at the union hall stating
the number of workers that will be needed the following day, the job classifications, and the
check in time for each job. This information is also put on the Respondent’s telephone
recording, so that members can call the hall to learn of job availabilities on the following day. A
bell rings at the hiring hall at 7:00 a.m., for the first shape, at which time the job seekers have
five minutes to shape up in order of seniority in front of the header whose gang they wish to be
employed in. A second bell rings at 7:05, at which time the workers are chosen by seniority, and
if an applicant has a complaint to make about a work assignment, he makes the complaint to
Harrell, who has the final authority to resolve these issues. After the second bell rings, Harrell
takes the work cards containing the individuals’ names and social security numbers from each
of the individuals chosen and gives these cards to the header, who brings them to the Eller
timekeeper at Channelside. The 11:00 shape is less formal, taking place outside the union hall,
without any bells.
Black appeared at the 7:00 a.m. shape for the Carnival Inspiration on March 13, but
individuals with more seniority than he had were chosen, and he left the hall, to return later for
the 11:00 shape. He testified that he returned to the hall at about 10:54 a.m. and, as he was
driving past the hall, he saw other members, George McNair, Ira Williams, Stanley Broderick
and Louis Simmons, walking to their cars as if they had already shaped and checked in at the
11:00 shape. It is admitted that Black had greater seniority than McNair, Williams and Broderick.
Black rolled down the window of his car and asked Simmons if he already checked in, and
Simmons nodded his head yes. Black then said that it wasn’t yet 11:00 and asked why they
checked in, and Simmons nodded his head like he didn’t know why. Black then got out of his car
and went into the Respondent’s office and told the secretary that he wanted to speak to Harrell.
When he didn’t come out of his office immediately, Black called to Harrell that he wanted to
speak to him and Harrell came out. Black told him that he checked the men in even though it
wasn’t 11:00. Harrell responded that they didn’t go by Black’s time, and Black told him that it
was 10:56 on the clock on the union wall. Black said that it was wrong for him to check the men
in prior to 11:00 and Harrell said that he already checked them in, and that he could check the
people in whenever he wanted to. Black said that he wanted a job, and Harrell said that he
wasn’t going to get one, and Black said that he was going to file charges with the Board. Harrell
said that he didn’t care what he did. At that point, Black left the union office and went to the
Board’s office where he filed the instant unfair labor practice charge. Black testified that there
was only one other occasion that he is aware of where the 11:00 shape occurred prior to the
scheduled time, although during 2006 he only came to the 11:00 shape about once a week. In
early 2005, he reported to the union office at about 10:56 a.m. and did not see anybody other
than Ernest Richardson, the Respondent’s recording secretary. Black asked Richardson if he
already did the check in, and Richardson said that he had because he didn’t think anybody else
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was going to show up for the shape. He asked Black if he wanted a job and Black said that he
did, and Richardson gave Black his scanner job for that afternoon.
Harrell testified that on the afternoon of March 12, he posted a notice on the bulletin
board at the union hall, and placed a recording on the union’s telephone, that four scanners
would be needed the following day at the 11:00 shape. On March 13, at about 10:50, while he
was in his office, he saw about eight applicants waiting outside in the parking lot (where the
11:00 shape takes place). He waited for about five minutes and went outside and said that he
needed the four most senior men; the three most senior men lined up with Simmons and at
about 10:56 these four men started to head for their cars to drive to Channelside. Initially,
Harrell testified that, about the same time, Black came to the door of the union office where
Harrell was standing, and told him that it was not yet 11:00 and Harrell told him that the
applicants had already checked on. In answer to questions from counsel for the Respondent, he
subsequently testified that while he was walking back into the union’s office after the shape,
Black yelled to him either from his car or crossing the street, that he, Harrell, checked on too
early. A few minutes later, Black came into the union office and told him that he wanted a
scanner job for the afternoon and Harrell told him that he could not get a scanner job because
they already checked on. Black then said that he was going to the Labor Board, and Harrell told
him that it was his problem, but that he was spending the union’s money. Black left the union’s
office without being referred to a job that day. Harrell testified that the 11:00 scanner shape was
checked on early, “…sometimes. It depends on the situation.” Harrell could not be specific about
the number of occasions where the 11:00 shape occurred prior to 11:00, other than to testify
that it occurred on “several occasions,” about five or six times over the last few years. This could
occur in situations where there are more than enough applicants at the hall prior to 11:00, or
where there are not enough applicants. In the latter situation, Harrell would call members and
tell them to go straight to the dock to work. If an applicant showed up after the members were
checked on, if the header offered an applicant with more seniority a job at that point, he would
have no problem with that: “It’s up to the header.”
Simmons testified that on March 13 he shaped at 7:00 and, because of his seniority,
went out as the header on the Storage Gang which unloads the grocery truck and takes the
groceries to the ship. He worked that job from 8:00 to about 10:35, when he completed work
and returned to the union hall to participate in the 11:00 shape for the afternoon scanner jobs.
He arrived at the union hall at about 10:50. About three or four minutes later, Harrell came
outside and told them to shape and Simmons took the cards from the most senior applicants.
“And at this time Mr. Black came up and made reference to the fact that we had checked on a
little early.” He testified that, at the time, Black was in his car, across the street from the union
hall when he yelled to Harrell, who was standing by the door to the union hall, but he did not
hear Harrell respond because the three men who were going to the job with him were “scurrying
off” fearful that they would lose their job that day to Black, who had more seniority than they did.
Simmons told them that there was no sense in them leaving, because if Black gave him his
card, “somebody is going to have to be cut off.” Simmons testified that he then said to Black,
who was still in his car about twenty to twenty five feet away from him, that if he wanted to go to
work he should give him his card, although, “He was so into what he was saying to Mr. Harrell, I
can’t say whether he heard me or not.” Black testified on rebuttal that Simmons never made that
offer to him, and could not make the offer to him because only Harrell had the authority to give
him the job. However, if Simmons had offered him the job he would have taken it even though
Simmons did not have the authority to offer it. Simmons testified further that if Black had given
him his card he would have given Black a job in place of the applicant with the lowest seniority.
However, Black never responded to this offer and drove off and Simmons left with the three
men a minute or two later.
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IV. Analysis
Most of the facts herein are undisputed. It is agreed that the Respondent operates an
exclusive hiring hall sending applicants to Eller, that the shape on March 13 occurred at about
10:54 or 10:55, five or six minutes early, that Black arrived at the hall prior to 11:00, about a
minute or two after the shape was concluded, but before the men had left for work, and that he
had more seniority than three of those who were chosen, and if the shape had taken place as
scheduled at 11:00, he would have been selected and would have been employed as a scanner
at Eller that day from 12:00 to 4:00. The only material credibility issue herein is Simmons’
testimony that at about 10:56, when he heard Black complaining from his car about the early
shape that morning, he told Black that if he gave him his card he would send him to work,
although Simmons was not certain that Black heard him, because he was in his car about
twenty to twenty five feet away, and was occupied with yelling at Harrell. Black denies that
Simmons made this offer to him. Although I found Simmons to be a generally credible witness, I
do not credit that he made this offer to Black or, if he did make the offer, Black did not hear it.
First, I find that if the offer had been made, Black would have quickly accepted the offer.
Further, Simmons testified that after he made the offer Black drove away, yet Black and Harrell
each testified that right after Black yelled to Harrell that he had checked in early, he parked his
car and came into the union office and spoke to Harrell. For these reasons, I find that either
Simmons never made the offer to Black, or Black did not hear it.
The issue herein is simply stated: did the Respondent violate Section 8(b)(1)(A) and (2)
of the Act by conducting its shape for scanners at approximately 10:55 on the morning of March
13, rather than the usual 11:00, thereby causing Black to lose four hours employment?
Steamfitters Local Union No. 342 (Contra Costa Electric, Inc.), 329 NLRB 688 (1999)
has a long history with the Board and the courts. In that case, the union operated an exclusive
hiring hall and Jacoby, the charging party, a union member for 27 years, registered for referral
and told Blevins, the union’s business representative in charge of the hall, that he wanted to be
employed on a certain project. When Jacoby returned to the hall to inquire about the job,
Blevins told him that he thought that he had already dispatched him to the job. The judge found
that Blevins thought that he had left a message on Jacoby’s answering machine referring him to
the job, but there was no record of such a call, and Jacoby did not obtain the job in question,
although he was dispatched to another job a week or two later. The judge, citing prior Board
cases, found that because Blevins departed from established exclusive hiring hall procedures,
which resulted in the loss of employment for Jacoby, the union violated Section 8(b)(1)(A) and
(2) of the Act. Citing Steel Workers v. Rawson, 495 U.S. 362 (1990) and Vaca v. Sipes, 386
U.S. 171 (1967), the Board reversed, saying, “We read these decisions together to mean that
‘mere negligence’ in the operation of an exclusive hiring hall does not give rise to a claim for
breach of the duty of fair representation, even by an applicant who loses an employment
opportunity as a result of the union’s mistake.” The Board further stated, however:
We stress that our holding today is a narrow one. We do not suggest that gross
negligence in the operation of a hiring hall, of the type indicating disregard for
established procedures, would not breach the duty of fair representation. Such conduct
would likely be found to be “arbitrary,” and possibly in bad faith, and thus within the
proscription of Vaca v. Sipes and O’Neill. We hold only that honest, inadvertent
mistakes, such as the union’s in this case, do not, without more, constitute a breach of
the duty. [Emphasis supplied]
After the Court, at 233 F.3d 611 (D.C. Cir 2000) reversed and remanded the case to the Board,
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the Board, at 336 NLRB 549 at 550 (2001) reaffirmed “…the Board’s earlier holding that
inadvertent mistakes in the operation of an exclusive hiring hall arising from mere negligence do
not violate the union’s duty of fair representation” and do not violate Section 8(b)(1)(A) and (2)
of the Act:
In so holding, we adhere to the Board’s longstanding position that any departure from
the established procedures for an exclusive hiring hall that results in a denial of
employment to an applicant violates the duty of fair representation and Section
8(b)(1)(A) and (2), unless the union can demonstrate that the departure was pursuant to
a valid union-security clause or was necessary to the union’s effective performance of its
representative function. We reaffirm that such departures encourage union membership
by signaling the union’s power to affect the livelihoods of all hiring hall users, and thus
restrain and coerce applicants in the exercise of their Section 7 rights. As indicated
above, however, our past decisions have recognized that inadvertent errors in operating
a hiring hall do not signal the union’s power over referrals and thus do not encourage
union membership or restrain and coerce applicants in violation of either the duty of fair
representation or Section 8(b)(1)(A) and (2).
The Board also stated that there is no requirement that a union must operate a hiring hall
“mistake free”:
An inadvertent failure to dispatch a hiring hall applicant in the proper order by definition
is not deliberate and can hardly be described as “arbitrary,” “invidious,” “hostile,” or any
of the other adjectives repeatedly used to characterize unfair representation. It carries no
suggestion that the union has any thought or intention of acting to an applicant’s
disadvantage. It may signal an error in judgment, but not favoritism or hostility.
On appeal, the Court, at 325 F.3d 301(D.C. Cir. 2003) affirmed the Board’s decision,
stating, “this case does not involve any allegation that the union acted with ill will, discrimination,
unlawful favoritism, nor any other obviously unreasonable business practice…[rather that it]
failed to refer petitioner to a job because of an admitted, albeit unintended, mistake.” The Court
concluded: “We are aware of no judicial decision-and petitioner cites us to none-in which a court
has held that a union violates its duty of fair representation if it commits a single act of simple
negligence or inadvertent error in the administration of an exclusive hiring hall.” The Board
came to a similar decision in United Association of Journeymen and Apprentices, Local 375,
330 NLRB 383 (1999), where the union’s dispatcher formed the good faith but mistaken belief
that the charging party applicant did not want to work during the relevant period even though he
had signed the referral register. Further, in Plumbers and Steamfitters Local 91, 336 NLRB 541
(2001), the Board reversed the judge’s finding that the union violated Section 8(b)(1)(A) and (2)
of the Act by failing to refer the two charging parties for certain job referrals. The union operated
an exclusive hiring hall and the judge found no evidence indicating that the failure to refer was
due to protected concerted activities or other unlawful considerations, and further found that the
union did not harbor animus toward the charging party. Rather, the judge found that the union
agent in charge of the hall was in a hurry to get to an appointment and did not have the time to
make the telephone call required under the agreed upon referral procedure. The Board cited the
cases referred to above stating, “…we find, in agreement with the judge that Eaves’ actions
were the result of ‘cutting corners’ so he could attend an important meeting, and were not
motivated by discrimination or animus against Moorehead.” The Board stated that because of
the rush that he was in: “Faced with a difficult situation, Eave’s decision was not ‘so far outside
a wide range of reasonableness’ as to be irrational,” quoting from Stage Employees Local 720,
332 NLRB 1. (2000). In NLRB v. AFSCME Local 1640, 325 F3. 301 (6th Cir 2006), the Court
stated: “…an unwise or even an unconsidered decision” by a union is not necessarily an
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irrational decision.”
A recent case, International Brotherhood of Electrical Workers, Local 48, 344 NLRB No.
102 (2005), involved a union that departed from its hiring hall rules. A “short call” was, at the
relevant times, a job that lasted less than 30 days. Registrants dispatched to short fall jobs
retained their predispatched position on the hall’s out of work list. Referrals that exceeded this
time period, lost their position and “rolled” to the bottom of the out of work list. The Board found
that the union violated Section 8(b)(1)(A) of the Act because of numerous “mistaken departures
from its hiring hall rules.” The Board stated that the union had no proper procedures in place to
check that registrations were done properly, despite the fact that it could have been easily
verified. The Board further stated:
Moreover, the failure to check was committed in the context of other conduct, viz.,
purposeful departures from the dispatch rules. That is, out-of-order dispatches went to
those who were willing to engage in union organizing. In this context, the Respondent’s
reckless indifference to book 1 eligibility amplified the message that “applicants had
better stay in good graces of the union if they want to ensure fair treatment in referrals.”
I find that the Respondent’s actions on March 13 in conducting the shape early cannot
be excused as “mere negligence” or “an honest inadvertent mistake” as set forth in Contra
Costa Electric and the other cases cited above. Even if it were an honest inadvertent mistake,
the Respondent had an opportunity to correct it as the three selected employees with less
seniority had not yet left for the job when Black appeared, yet the Respondent did nothing to
correct the situation. Rather, I find as argued by Counsel for the General Counsel in her brief
that it was a deliberate action of the Respondent that constituted a disregard of, departure and
from, the established procedures of the exclusive hiring hall. Even though there is no evidence
that the early shape was motivated by any desire to discriminate against Black, or for any other
obviously unlawful reason, this deviation from the established procedures of the hiring hall
resulted in Black’s losing employment for the day and therefore violated Section 8(b)(1)(A) and
(2) of the Act.
Conclusions of Law
By departing from the established procedures of its exclusive hiring hall on March 13,
resulting in the failure to refer Malcomb Black Sr. to employment with Eller Maritime Services,
LLC, the Respondent violated Section 8(b)(1)(A) and (2) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. As I have found that the Respondent deviated in its
established hiring hall procedures resulting in Black losing four hours of employment, I
recommend that the Respondent be ordered to make him whole for the loss that he suffered
due to its actions, as prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Upon these findings of fact, conclusions of law and based upon the entire record, I issue
the following recommended2

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
Continued
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ORDER
The Respondent, International Longshoremen’s Association, Local 1402, AFL-CIO, its
officers, agents and representatives, shall
1. Cease and desist from
(a) Deliberately departing from the established procedures of its hiring hall by conducting
the shape for employees to be referred to Eller, or any other employer, prior to the time
previously announced by the Respondent.
(b) In any like or related manner restraining or coercing employees in the exercise of
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 whole Malcomb Black Sr. for the loss that he suffered due to the Respondent’s
deviation from its established hiring hall rules for all earnings and other benefits lost as a
result of this violation.
(b) Within 14 days after service by the Region, post at its union office and hiring hall in
Tampa, Florida, copies of the attached notice marked “Appendix.”3 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 consecutive days in conspicuous places including all places where
notices to members are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification 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., October 25, 2006.
________________________________
Joel P. Biblowitz
Administrative Law Judge
_________________________
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
3 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–47-06
APPENDIX
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT deliberately depart from the rules governing the operation of our hiring hall by conducting
shapes at a different time than was previously announced to our members.
WE WILL NOT otherwise deliberately depart from the rules governing the operation of the hiring hall
where the departure is neither pursuant to a valid union security clause nor necessary to the effective
performance of our representative function.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole Malcomb Black, Sr., with interest, for the loss that he suffered due to our departure
from the established procedures of our hiring hall.
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL 1402, AFL-CIO
(Union)
Dated_________________ By_________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
201 East Kennedy Boulevard, South Trust Plaza, Suite 530
Tampa, Florida 33602-5824
Hours: 8 a.m. to 4:30 p.m.
813-228-2641.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 813-228-2662.