Hellenic Lines, Ltd.

National Labor Relations Board - Board Decisions

Feb 4, 1977

228 N.L.R.B. 1 (N.L.R.B. 1977)

HELLENIC LINES LIMITED I
Hellenic Lines Limited and Amilcar Molina
Local 1277-1, International Longshoremen 's Associa-
tion, AFL-CIO and Amilcar Molina . Cases 29-CA
-4724 and 29-CB-2325
February 4, 1977
DECISION AND ORDER
BY MEMBERS JENKINS , PENELLO, AND
WALTHER
8(b)(1)(A) and 8(b)(2) of the Act. The answer of both
Respondents, while admitting the jurisdictional allegations
of the complaint, denies the commission of any unfair labor
practices.
At the hearing, the parties were given full opportunity to
be heard, to present evidence, and to make oral argument.
Thereafter, both Respondents duly filed briefs.
Upon consideration of the entire record herein, and due
consideration having been given to the contentions and
arguments of the parties made in oral argument and
contained in their briefs, and upon my observation of each
witness who appeared before me, I make the following:
On October 29, 1976, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, Respondent Union
filed a brief in support of the Administrative Law
Judge's Decision, and Respondent Employer filed a
brief in response to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN , Administrative Law Judge: This
case was heard at Brooklyn, New York, upon a consolidat-
ed complaint issued by the Regional Director for Region 29
on February 27, 1976, which complaint was based upon a
charge filed by Amilcar Molina, an individual, on Novem-
ber 19, 1975, in Case 29-CA-4724, and a first amended
charge in that case dated December 15, 1975, and a charge
filed by Molina in Case 29-CB-2325 on November 19,
1975. The consolidated complaint alleges, in substance, that
Respondent Local 1277-1, International Longshoremen's
Association, AFL-CIO, herein called the Union, caused
Respondent Hellenic Lines Limited, herein called Hellenic,
to discharge two employees of Hellenic because the
employees were not members of Respondent Union and
that, thereby, Hellenic committed violations of Section
8(a)(3) and (1) of the Act and the Union violated Section
228 NLRB No. I
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT EMPLOYER
Respondent Hellenic , a Greek corporation licensed to do
business in the State of New York, is engaged in the
shipping of freight to and among the various States of the
United States and in foreign commerce. During the year
immediately preceding the issuance of the complaint
herein, a representative period, Hellenic, in the course and
conduct of its business, performed services of a value in
excess of $1 million for various enterprises located in States
other than the State of New York and for firms located in
foreign countries and engaged in foreign commerce.
It is admitted, and I fmd, that Hellenic is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
It is admitted , and I find, that the Respondent Union is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Hellenic is a member of the New York Shipping
Association, hereinafter referred to as the Association. The
Union is a Local of International Longshoremen's Associa-
tion, AFL-CIO, hereinafter referred to as ILA. ILA and the
Association have maintained at all times material hereto a
master collective-bargaining agreement, the pertinent ap-
plicable sections of which are summarized below. The
relationship between Hellenic, as a member of the Associa-
tion, and the Union, as a local subdivision of ILA, is
governed by, and subject to the terms of, the aforesaid
collective-bargaining agreement.
Additionally, the hiring practices provided for in the said
agreement are also subordinate to the rules and regulations
of the New York Harbor Waterfront Commission, herein
called the Commission, an agency formed by compact
between the States of New York and New Jersey, with the
approval of the United States Congress, to regulate the New
York Harbor waterfront shipping industry. The Commis-
sion licenses hiring agents, pier guards, and superinten-
dents, registers checkers and longshoremen, the latter
classification including miscellaneous dock workers such as
mechanics, caulkers, and carpenters. No one is permitted,
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by law, to work on any pier in New York Harbor unless the
individual has obtained the approval of the Commission
and is registered by the Commission and hired through one
of the Commission's hiring centers. Evidently, one such
approved center for the hiring of mechanics and other
miscellaneous dock workers is the hiring hall maintained by
Respondent Union.
The collective-bargaining agreement between the Associ-
ation and ILA, which contains the hiring practices to which
both Hellenic and the Union are legally bound, provides for
a 30-day union-security clause, and concededly lawful
hiring hall provisions which obligate Hellenic to call upon
the Union, exclusively, to dispatch, among other skilled
workers, loading equipment maintenance mechanics, who
in turn , under the law, must be registered with the
Waterfront Commission if they are to be assigned to work
on Hellenic's pier on the Brooklyn, New York, waterfront,
part of New York Harbor.
The principal feature of the hiring procedures provides
that, when hiring, the employer is required to notify the
Union by telephone and indicate the number of men and
qualifications required. The Union then will refer men on
the basis of the qualifications which the men possess, and
their seniority, from those listed at the Union's hiring hall.
It should be noted in connection therewith, that the Port of
New York is divided into two sections and that the
employees represented by Respondent Union herein are
employees for section "B" of the Port which includes
Brooklyn and Staten Island. The employees of other
sections of the Port who are in the miscellaneous employ-
ees' category, as noted above, are represented by another
local of ILA.
The hiring procedures set forth above are further compli-
cated by two factors: (1) the closing of registration since
1966 by the Waterfront Commission, except for a short
period in 1969, because of the scarcity of available jobs on
the New York waterfront, and (2) by a provision in the
supplemental or amended agreements between the mem-
bers of the Association and the ILA which guarantees an
annual income of all registered members of ILA locals. The
funds for the payment of this "guaranteed annual income,"
known as GAI, are contributed by Hellenic and all other
members of the Association. The procedures utilized for the
GAI are rather complicated, but, in short, provide that each
member of the ILA who is not working because of lack of
work shall report to his respective hiring hall on each
working day, and, if such an employee fails to do so, he will
have that day's guaranteed wage deducted from the GAI on
a complicated basis. As an instance, the employee who fails
to report for no reason at all will receive more deductions
from his GAI than the employee who fails to report because
of an illness or other valid reason.
Employees in the classifications known as "miscellane-
ous," who are members of Respondent Union herein, must
report in much the same manner to the Union's hiring hall
in order to collect their guaranteed annual income. Under
these procedures, it is advantageous to any employer-
I A union member on GAI can collect as much as $16,000 per year if not
employed for that long by an Association member
2 Although Molina testified on direct examination that he also spoke
about union membership to Hellemc's pier superintendent , a Mr Gram,
member of the Association, such as Hellenic, normally to
seek its employees from the Union's hiring hall, not only
because of the legal obligation to do so as provided in the
Association's contract with ILA, but also because the more
employees hired directly from the hall who are on GAI the
less the contributions that the employer-members of the
Association would be required to pay into the GAI fund.'
It is in the context of the foregoing provisions of the
master agreement and subsidiary and supplemental agree-
ments between the Association and the ILA and the rules
and regulations for hiring procedures as supervised by the
Waterfront Commission that the events of the instant case
occurred.
B. The Events
Before sometime in March 1975, Amilcar Mohna and
Matthew Rodgers, mechanics on material-handling equip-
ment, worked for a firm named Eagle Material Handling
Company, which supplied material-handling equipment to
the Hellenic's pier on 57th Street in Brooklyn, New York.
About the middle of March 1975, Donald Clark, who had
observed Molina and Rodgers performing warranty work
on the equipment at the Hellenic Pier, informed Molina
and Rodgers that Hellenic was thinking of discontinuing
business with Eagle and would like to give Molina and
Rodgers the opportunity to work for Hellenic . Although the
pay scale offered by Clark was somewhat less than the
hourly rate that Molina and Rodgers were receiving at
Eagle, there were opportunities to make more money
because Clark informed the two there would be an
opportunity to become union members after 6 months'
employment with Hellenic, together with the benefits that
would ensue from such membership. Accordingly, Molina
and Rodgers accepted, both at the same time , and began
working for Hellenic approximately a week later. Neither
Rodgers nor Mohna was a union member at the time, nor
were they possessors of Commission passes inasmuch as
they had never been registered for work at the New York
Harbor waterfront. In accordance with the promise made
to Molina and Rodgers, several times during his employ-
ment with Hellenic, Molina requested of Clark when
Molina was going to be able to join the Union. Clark told
Molina that the latter would just have to wait.2 However,
Molina, himself, never went to the union hall to apply for
union membership. Nor does the record reveal that
Rodgers ever did so. Neither did any union official
approach Molina with regard to the latter's lack of union
membership until November 7, 1975, when Union Presi-
dent Joseph Colozza accosted Molina.
On November 6, Stephen Giardino, mechanic foreman at
Hellenic's 57th Street, Brooklyn pier, met Joseph Colozza at
Colozza's office in the union hall. During their conversa-
tion, Giardino mentioned to Colozza that Hellenic had two
mechanics employed on the pier performing maintenance
work on the material-handling equipment. This informa-
tion came as a surprise to Colozza inasmuch as, under the
contract between the Association and the ILA, Hellenic
during cross-examination Molina testified to the opposite and, accordingly, I
do not find that at any time he spoke to Giam with regard to joining the
Union.
HELLENIC LINES LIMITED 3
was obligated to call the Union for mechanics when
needed. At that time, there were a number of mechanics
qualified to perform the work being performed by Molina
and Rodgers who were on GAI and who were reporting
daily to the union hall for employment.
By reason of this information, the next morning, on his
way to his office, Colozza stopped at the Hellenic pier and,
although he had never met either Molina or Rodgers,
approached them at their work. Molina was working on a
piece of equipment in the garage on the pier as were
Rodgers and Giardino. Colozza introduced himself to
Molina and identified himself as president of the Union. He
requested Molina to come off the machine on which he was
working. Molina thereupon informed Colozza that Molina
was a mechanic. Colozza then told Molina that Molina
could not work on the pier because he was not a member of
the Union. Colozza also told Molina that he was going to
the pier office and ask Hellenic 's pier management to
replace Molina with a union mechanic. At that point,
Molina asked if there was anything he could do, and
Colozza told him "not really." It was either before he
proceeded to the office or after he left the office that
Colozza told Molina and Rodgers that the pier was a union
shop, that Molina and Rodgers had no business being
there, and that Molina and Rodgers were going to have to
leave.
In any event, when Colozza went to the pier office, he
spoke to Superintendent Giani and asked the latter where
the two mechanics, referring to Rodgers and Molina, had
come from. Giani answered that they were hired to do
warranty work. Colozza thereupon stated that the warranty
work on that machinery had long since been finished and
asked Giani why the latter had not called him for two
mechanics . Giani just shrugged. There was some further
conversation and mention by Giant that Molina's wife was
pregnant . Giani asked if Colozza could delay having
Hellenic fire Molina for that reason. To this request,
Colozza answered that the Union did not want to hurt
anyone; that all the Union wanted to do was bring a
mechanic in from the hall to replace Molina and that a
week 's delay would be all right with Colozza.
Thereafter, Colozza went downstairs and approached
Molina and Rodgers and explained that the Union was not
asking Molina to be terminated that day, but that he was to
have another week's extension inasmuch as Colozza under-
stood that Molina's wife was pregnant. When Molina
answered to the effect that nothing ever went right for him,
Colozza told Molina that there were men at the hiring hall
also looking for a break.
Molina then asked if he could join the Union. Colozza
answered that it would be senseless for him to do so
3 All of the foregoing is from various credited portions of the testimony of
Molina and Colozza . Although, in testifying , Colozza denied that he told
Molina in so many words that Molina could not work there any longer
because he did not belong to the Union , I find and conclude that, at least, in
effect, Colozza did state this to Molina and Rodgers However, I believe
further that Colozza did explain to Molina why, as a nonunion employee of
Hellenic, Mohna could not work at Hellenic's pier. I conclude that both
Molina and Colozza testified to the best of their recollection and without
attempt to mislead . However , as hereinafter discussed , although I find that
Colozza did tell Mohna that the pier was a union shop and that Molina had
no business being there and was going to have to leave , Colozza did, in
effect , use the terms in a context which was not unlawful
because there was no way that Molina could join the Union
and still retain his present job inasmuch as the seniority
provisions of the collective-bargaining agreement would
put other employees who would be ahead of Molina on the
job at Hellenic's pier. Molina then asked if there was
something else he could do. Colozza asked Molina what his
skills were and whether Molina welded or burned. Molina
answered that he was a good mechanic. With that, Colozza
gave Molina his card and told the latter that Molina should
call Colozza and perhaps Colozza could find something for
Molina to do.3
After Molina's second conversation with Colozza on
November 7, Molina was permitted to work for the balance
of the week and presumably the following week, after which
he left the Respondent's employ. However, before leaving,
Supervisor Mechanic Clark obtained for Molina a position
with another material-handling machinery company for
which Molina had worked before going to work for the
Eagle Material Handling Company. However, this job
lasted only a short period of time for reasons which are not
here relevant in view of the decision in this case.
Thereafter, after leaving the position obtained for him by
Clark, Mohna called the union hall on several occasions in
order to reach Colozza, but was informed that Colozza was
not available.4
During the week after Molina was approached by
Colozza on the pier, he was told by Clark that on the
following Monday morning he could speak to Aristotle
Voulgaris, operations manager for Hellenic, who had his
office in New York but would be at the pier on the
following Monday morning. According to Molina, al-
though Voulgaris was on the pier that morning he never
spoke to Molina. Nevertheless, after leaving the Respon-
dent's employ, Molina did visit Voulgaris' office in Man-
hattan. The two had a conversation in which Voulgaris told
Molina that Molina could not work for the Respondent any
longer because Molina was not a union member and
Hellenic's pier was a union pier.5 I find that Molina was
told by Voulgaris that the Union did not want Molina and
there was absolutely nothing the Company could do for the
latter.
C. Conclusions
Counsel for the General Counsel contends that when
Colozza informed Molina that the latter could no longer
work for Hellenic because Molina was not a member of the
Union, and when Voulgaris told Molina much the same
thing, perhaps in slightly different words, they meant
exactly what they said, namely, that a violation was spelled
out by the words used and that their intention was strictly
4 Although Colozza testified that Molina never called him, it is very
possible that Colozza never received any message that Molina had tried to
reach him.
5 Although Voulgaris testified that he never told Molina that the latter
could not work for Hellenic because Molina was not a member of the Union,
it is apparent that Voulgans ' testimony in this respect is not credible. The
investigatory affidavit which Voulgans signed for the General Counsel's
representative was to the contrary . Additionally , I do not credit Voulgans
because upon my observation of him I conclude that by his manner on the
witness stand and by his efforts to refuse to directly answer questions put to
him he proved himself to be a less than reliable witness.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to prevent further employment of Molina for his failure to
become a member of the Union, despite the fact that he had
not been given an opportunity tojoin the same, presumably
because no demand had ever been made upon him tojoin
the Union by any representative of the Respondent Union.
Furthermore, when Colozza spoke to Molina on November
7, Colozza told Molina that it would be fruitless for Molina
to join the Union and that he, Colozza, could do nothing
for him with regard thereto. Counsel for General Counsel
cited a number of cases in which the Board held that in like
situations violations had been spelled out where a union has
caused the discharge of an employee by reason of the
employee's failure to loin the union without the union
giving such employee an opportunity to join the union.6
Respondent Union, on the other hand, maintains, aside
from its argument that Molina should be completely
discredited with regard to what he was told by Colozza on
November 7, even assuming that Colozza used the words
attributed to him by Molina in the latter's testimony, the
import of those words should be assessed in the context of
the entire situation in the Port of New York and not judged
in a strictly technical sense as the General Counsel would
have it. In the context alluded to by Respondent Union, the
words meant no more than what Colozza intended them to
mean, namely, that the Union had the right to request the
discharge of Molina and Rodgers by reason of the authority
and exclusive right given the Union by the master agree-
ment between the ILA and the Association, and by reason
of that right, Molina not having been dispatched to
Hellenic through the hiring hall procedures which are
admittedly lawful, any discharge resulting from the words
used by Colozza as attributed to him by Molina meant just
that and no more. Therefore, the action taken by Colozza
on behalf of the Union was not violative of the Act.
Respondent cites numerous cases, unnecessary to be
repeated here, where the Board has consistently held that it
is not a violation of the Act for a union, with a valid hiring
hall referral system, to require an employer to discharge an
employee hired without referral pursuant to such hiring hall
agreement.
Respondent Hellenic, while advancing somewhat the
same argument, additionally contends that there is no
evidence in the record that Molina, or Rodgers, were ever
discharged by Respondent and that the only testimony in
the record, insofar as it applies to Respondent with regard
to Molina's leaving the employ of Respondent, is the
conversation between Molina and Clark in which Clark
told Molina that he would get Molina another job upon the
latter's request. However, I do not find this portion of
Respondent Hellenic's contention to be meritorious in view
of the conversation at Voulgaris' office between the latter
and Molina. In this conversation, Voulgaris informed
Molina that the Union would not permit Molina to work
for Hellenic because Molina was not a member of the
Union and that, therefore, Respondent could do nothing
about the matter. While this might not have been a direct
discharge insofar as the words spoken were concerned, it
demonstrated an acquiescence in the Union's demand that
Respondent discontinue Molina's employment.
Nevertheless, I find merit in the contention of Respon-
dents that the words used by Colozza and Voulgaris in
mforming Molina that the latter could not work for
Hellenic because he was not a member of the Union should
not be applied mechanically in the context in which the
conversations arose. Admittedly, Molina and Rodgers were
hired by Hellenic in contravention of the lawful union
hiring hall referral system set forth in the master agreement
between the Association and ILA to which both the Union
and Hellenic are parties. Hellenic being bound by the said
agreement violated the same when it hired Molina and
Rodgers. In addition, the record is devoid of any evidence
to the effect that the Union had any knowledge that Molina
and Rodgers were working on Hellenic's pier until the day
before Colozza spoke to Molina. Thus, the Union through
its authorized agent could not and did not act upon the
matter until it acquired knowledge of the same. Additional-
ly, neither Molina nor Rodgers was lawfully on the pier
inasmuch as they were not registered with the Commission
and had no legal standing to work as mechanics on any pier
on the New York Harbor waterfront. When Rodgers and
Molina were hired, Respondent Hellenic's supervisors were
well aware of this fact and, as the record shows, Molina and
Rodgers were hired because they were working, although
they had no knowledge of it, for less than union scale, and it
is obvious that Hellenic's hiring of Rodgers and Molina was
not only because of their skills, but because of the fact that
Hellenic could have the use of two qualified mechanics
without paying the wage scale required by the agreement
between ILA and the Association. Superimposed upon all
the foregoing is the fact that there were a number of
individuals who had both union membership, seniority, and
commission registration collecting GAI and seeking em-
ployment through the union hall at the time Molina and
Rodgers were hired and during the entire 8 months of their
employment with Hellenic.
With regard to the mechanics collecting GAI, General
Counsel sought to introduce into the record, to support his
position, testimony of a representative of the Commission,
Jesse Langston, the Commission's director of employment
centers. Langston testified that there were times when the
provisions for opening up commission registration on
special request of employers had to be utilized during the
time that mechanics were collecting GAI because the
Union failed to supply such mechanics to employers.
However, I find that Langston's testimony, although
completely credited with regard to the facts to which he
testified, referred to events which were too remote from the
occurrences on Respondent Hellenic's pier to have been
supportive of the General Counsel's contention.? I, there-
fore, do not consider Langston's testimony to be of
sufficient weight to overcome the other factors presented by
the situation in the instant proceeding.
In addition to all of the foregoing, I note two additional
matters which I conclude support the contentions of
6 Counsel for General Counsel cites Amalgamated Meat Cutters and a! Association of Heat and Frost Insulators & Asbestos Workers, Local No 40,
Butcher Workmen of North America , Local No 576 (Westfield Thrftway AFL-CIO (Robert A Keasfey Co), 184 NLRB 708 (1970), and Encinal
Supermarket), 201 NLRB 922, 928 (1973); Local Union No 58ofthe United Terminals, 193 NLRB 362(1971)
Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting 7 It is for this reason that Langston 's testimony is not set forth in the
industry, AFL-CIO (Heyse Sheet Metal), 187 NLRB 152 ( 1970), Internation- factual recitation above
HELLENIC LINES LIMITED 5
Respondents. Colozza, when informed of the fact that
Molina's wife was pregnant, readily consented to permit
Molina to work an extra week on the Hellenic pier in order
to give Molina some time to perhaps seek other employ-
ment and to soften the blow of Molina's leaving Hellenic's
employ. Additionally, Colozza told Molina to keep in
touch; that Colozza would attempt to find other work for
Molina.
Additionally, there is the factor that the day after Molina
left Respondent's employ, the Union furnished to Hellenic
through the hiring hall seniority system a mechanic who
had been on GAI and who has been working for Hellenic
from that date until the date of the hearing herein. This last
fact would seem to vitiate any contention by the General
Counsel that, in fact, the Union was not interested in
supplying mechanics from the hiring hall, but merely
interested in just having Molina discharged because the
latter was not a union member . Finally, I find from the
recited facts that it would have been a useless gesture for
Colozza to have offered union membership to Molina and
Rodgers in view of the fact that mechanics qualified to
perform mechanical work required by Hellenic, and who
had seniority, were so numerous that Molina and Rodgers
could not possibly have been assigned to work at the job on
Hellenic's pier even if they had become union members and
had obtained harbor passes from the Commission.
Accordingly, by reason of all the foregoing, I conclude
that the General Counsel has failed to prove by a prepon-
derance of the credible evidence the allegations set forth in
8 In the event no exceptions are filed as provided by Sec. 10246 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
the complaint. I find that the words used by Colozza and
Voulgaris, in the context above recited, can be interpreted
only in that context, and that Colozza was merely asserting
the Union's lawful right to have Molina and Rodgers
discharged because they were not dispatched to Hellenic
through the lawful hiring procedures. I shall therefore
recommend that the complaint herein be dismissed in its
entirety.
CONCLUSIONS OF LAW
1. Respondent Hellenic is an employer engaged in
commerce within the meaning of the Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. By demanding the discharge of Molina and Rodgers,
the Union has not violated Section 8 (b)(1)(A) and (2) of the
Act.
4. By discharging Molina and Rodgers , or at least
consenting to the Union 's demands , Respondent Hellenic
has not violated Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER8
It is ordered that the complaint herein be, and the same
hereby is, dismissed in its entirety.
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