Inland Boatmen'S Union Of The Pacific, Hawaii Region (Dillingham Tug & Barge Co.)

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1261 (N.L.R.B. 1985)

INLANDBOATMEN UNION (DILLINGHAM TUG)
Inland Boatmen's Union of the Pacific, Hawaii
Region (Dillingham Tug & Barge Company) and
Charles Jason Spain and Lionel Ezera and
Charles _ J. Spain . Cases 37-CB-542, 37-CB-
549, and 37-CB-555
30 September 1985 -
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 31 July 1984 Administrative Law Judge Earl-
dean V. S. Robbins issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations' Board has delegat-
ed' its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Inland Boatmen's Union of the Pacific,
Hawaii Region, its officers, agents, successors, and
assigns , shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 2(b).
"(b) Withdraw or otherwise seek dismissal of its
action in Civil No. H84-525 insofar as its involves
the collection of said fines before the State District
Court of Hawaii or any similar action with that
forum."
2. Substitute the attached notice for that of the
administrative law judge. -
" We agree with the judge that the fines levied by the Respondent
against members Aloiau, Ezera, Griep, Iokepa , Kahanamoku , Kapule,
Keane, and Spain violated Sec 8(b)(1)(A) We also agree that the Re
-spondent should ceaseand desist from its attempt to collect these unlaw-
ful fines in a state court suit See Laundry Workers Local 3 , (Virginia
Cleaners), 275 NLRB 697 (1985) -
APPENDIX
1261
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 the National, Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 .of the Act gives-employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
•tives of their own choice -
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT impose court-collectible fines on
Llewellyn Frank Aloiau; Lionel Ezera, Phyllis
Griep, Philip Iokepa,- William Kahanamoku, Wil-
liam Kapule , Francis Keane, and Charles Jason
Spain because said employees, joined and/or sup-
ported the Inland Boatmen 's Union of Hawaii, af-
filiated with Seafarers International Union of North
America in a National Labor Relations Board elec-
tion ; and WE WILL NOT take, or threaten to take,
legal action to collect such fines.
WE WILL NOT attempt to cause Dillingham Tug
& Barge Company to discharge employees Llewel-
lyn ,Frank Aloiau, Charles Jason Spain, Phyllis
Griep, Lionel Ezera, and Francis Keane or any
other employee for failure to pay- dues in accord-
ance with the union-security provision of the col-
lective-bargaining agreement while simultaneously
denying them the rights and privileges of union
membership by suspending them from such mem-
bership for periods ranging from 8 to 19 years be-
cause they joined and/or supported the Inland
Boatmen 's Union of Hawaii, affiliated with Seafar-
ers International Union of North America in a Na-
tional Labor Relations Board election.
WE WILL NOT in any like or related manner re-
strain or coerce employees' in the exercise of the
rights guaranteed them in Section 7 of the Act.
WE WILL rescind the fines levied' against Llewel-
lyn Frank Aloiau, Lionel Ezera, Phyllis 'Griep,
Philip Iokepa, William' Kahanamoku, William
Kapule, Francis' Keane, and Charles Jason Spain
because said employees joined and/or supported
the Inland Boatmen 's Union of, Hawaii, affiliated
with Seafarers International Union of North Amer-
ica in a National Labor Relations Board election;
and WE WILL expunge any reference thereto-from
276 NLRB No. 141
-1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
our, files and records;-and WE WILL immediately
notify said employees of such action and reimburse
them for any portion -of said fines which we may
have collected, with -interest. -
WE WILL' withdraw or otherwise seek dismissal
of the lawsuit we filed in Civil No. H84-525 before
the State District Court of Hawaii insofar as it in-
volves the collection of said fines or any similar
action we have filed with that forum.
WE WILL, reimburse the fined employees named
above for- all reasonable expenses and legal fees in-
curred by them, plus interest, in defending against
such legal actions. -
WE' WILL -immediately notify Dillingham Tug &
Barge Company that we withdraw our requests for
the termination of Llewellyn Frank Aloiau, Lionel
Ezera, Phyllis Griep, Francis Keane, and Charles
Jason Spain; and WE WILL immediately notify each
of those employees, in -writing, that we have with-
drawn our requests for their termination. - -
INLAND BOATMEN'S UNION OF THE
PACIFIC, HAWAII REGION
David R. Sargent, Esq., of Honolulu, Hawaii , for the
. General Counsel.- --
Randall N. Harakal, Esq., of Honolulu, Hawaii, for the
Respondent. - -
DECISION
STATEMENT OF THE CASE -
EARLDEAN' V.S. ROBBINS, Administrative Law 'Judge.
This matter was,heard before me in Honolulu, Hawaii,
on March 6, ,1984. The charge in Case 37-CB-542 was
filed by Charles-Jason Spain, an. individual (Spain), and
served on Inland Boatmen 's Union of the Pacific, Hawaii
Region (Respondent or IBU Pacific), on June 24, 1983.
The, charge in Case 37-CB-549 was filed by Lionel
Ezera, an individual (Ezera), and served on Respondent
September 19, 1983.. The charge in Case 37-CB-555 was
filed by Spain and served on Respondent October 24,
1983. The consolidated complaint, which issued on No-
vember 30, 1983, alleges that Respondent violated Sec-
tion -8(b)(1)(A) and'(2) of the National Labor' Relations
Act (the Act).
The. basic issue -is whether Respondent violated Sec-
tion 8(b)(1)(A) of the Act.by imposing fines on eight of
its members and by instituting a lawsuit to collect these
fines because, they supported a rival ,labor organization,
the Inland Boatmen 's Union of Hawaii, affiliated with-
the Seafarers International. Union of North America
(IBU Hawaii); and violated Section 8(b)(2) of the Act by
attempting to'cause the discharge of certain of these indi-
viduals after they ceased paying their union dues'follow-
ing their suspension as union members.
,On the entire record,- including my observation of the,
witnesses ,. and after, due consideration of the briefs filed
by the parties, I make the following -
FINDINGS OF FACT
1. JURISDICTION
Dillingham Tug & Barge' Company (Dillingham), a
Hawaii corporation with offices and places of business
located in Honolulu, Hawaii, is engaged in international
and interstate shipping services. During the past calendar
year, and for 1982, Dillingham, in the course and con-
duct of its business operations, derived gross revenues in
excess of $50,000 for the transportation of freight and
commodities from the State of Hawaii directly to points
outside the State.
The consolidated complaint alleges, Respondent
admits, and I find that Dillingham is, and. has been at all
times material, an employer ' engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
- The consolidated complaint ' alleges, Respondent
admits, and I find that Respondent is now, and has been
at all -times material, a labor organization within the
meaning of Section 2(5) of the Act. •
The consolidated complaint alleges, the parties stipu-
late, and -I find that the Inland Boatmen's Union of
Hawaii, affiliated with Seafarers International Union of
North America is a labor organization within the-mean-
ing of Section 2(5) of the Act. .
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent was affiliated with Seafarers International
Union of North America (SIUNA) from April 1948 until
December - 1979, at which - time it disaffiliated from
'SIUNA and continued to' function as an independent
labor organization. Although the record is not absolutely
clear as to the time, it appears that -sometime in 1980
SIUNA issued a charter to IBU Hawaii. It further ap-
pears that during 1980 or 1981, when Respondent was in-
dependent, its collective-bargaining agreements with two
or three employers expired and Board-conducted elec-
tions were held in these units to determine'whether the
employees wished to be represented by IBU Hawaii or
Respondent. IBU Hawaii .won the election in two units,
Sealboats and Dole, and Respondent won the election at
Dynalectron. There were about 9 employees in the Seal-
boats unit, about -16 or 19 employees in the Dole unit,
and about 16 in the Dynalectron 'unit. On October 31,
1981, Respondent affiliated -with ILWU and was so affili-
ated at the time of the hearing herein. - •
Respondent's collective-bargaining agreement with
Dillingham expired by its terms on August 31, 1982. At
that time there were approximately 116 employees in the
unit. By late September, Respondent and Dillingham had
failed to reach agreement on a new contract. -In late Sep-
tember, unit employees Charles Jason Spain, Llewellyn
Aloiau, Phyllis Griep, Francis Keane, Lionel Ezera, Billy
Kapule, William Kahanamoku, and Phillip. Iokepa com-
menced organizing activities among unit employees on
behalf of IBU Hawaii. By letter dated October 6, Dil-
lingham advised unit employees that it was of the opin-
INLANDBOATMEN UNION (DILLINGHAM -TUG)
ion that negotiations between it and Respondent were at
an impasse and that effective October 16, 1982, it would
implement its final proposal. The letter further advised
employees that since no union contract was in effect, it
would no longer make union dues deductions.
On October 15, 1982, IBU Hawaii filed a representa-
tion petition with the Board seeking to represent the unit
at Dillingham which was then represented by Respond-
ent.' Thereafter, Dillingham, IBU Hawaii, and Respond-
ent entered into a Stipulation for Certification - Upon
Consent Election which was approved by the Board's
Regional Director on October 26, 1982, and which pro-
vided for a Board-conducted election to be held Novem-
ber 22 and 23, 1982, and other dates to be determined by
the parties for crewmembers then at sea. The eight em-
ployees involved actively campaigned for IBU Hawaii
during the preelection period. At least two meetings of
employees were held by IBU Hawaii-on November .6
and 13, 1982 The November 6 meeting was chaired by
Spain. Both Unions distributed campaign literature to
unit employees. The election was held as scheduled and
resulted in 29 ballots being cast for IBU Hawaii, 81 bal-
lots being cast for Respondent, no ballots being cast
against participating labor organizations, and 20 chal-
lenged ballots. At some point prior to March 1983,2 IBU
Pacific and Dillingham reached agreement on a new
contract which was effective by its terms from March 1,
1983, to February 28, 1986.
On May 17, Respondent sent identical letters signed by
Hawaii Regional Director John M. Gouveia to Aloiau,
Ezera, Griep, Iokepa, Kahanamoku, Kapule, Keane, and
Spain, notifying them they were being brought up on
charges at a trial to be held June 6, 1983. Attached to
each letter was a -copy of the charges filed against the
addressee. Each of the charges stated: .
According to the IBU Constitution under Article
XIX, Trials and Appeals, this is to serve as written
notice that (name of accused member) is hereby
charged with the following offenses.
Respondent then set forth the various portions of "Arti-
cle XVIII, Offenses and Penalties, Section l," with
which the individuals were charged.
The pertinent portions of this article read:
ARTICLE XVIII
Offenses and Penalties
Section 1-The Grounds for Charges Against
Members or Officers. .
The basis for charges against members or officers
shall consist of, but not be limited to, the following:
(b) Acting as an informer against the interest of
the Union or the membership in any organizational
campaign; '
1 The appropriate unit is
All full-time and regularly scheduled part-time employees of the Em-
ployer located at Pier 21, including crew members, dispatchers, tan-
kermen, and maintenance shop employees
z All dates hereinafter will be in 1983 unless otherwise indicated.
1263
(d) The commission of any.act-as part of a con-
spiracy to injure or destroy the Union;
(1) Deliberate and unauthorized interference, or
deliberate and malicious vilification, with regard to
the execution of the duties of any office or job;
(t) Misconduct during any meeting or other offi-
cial Union proceeding or bringing the Union into
disrepute by -conduct not provided elsewhere in this
Article;
(v) Engaging in any activity or course of conduct
contrary or detrimental to the welfare or business
'interest of the Union` or any region thereof;
(x) Refusal to cooperate with Union representa-
tives in discharging their' duties;
(z) Violation of any provision of the Constitution;
(aa) Violation of the member's obligation.
Spain was charged by Gouveia and two other mem-
bers with all of the offenses listed above except para-
graph (t). -Additionally, the enclosed statement of
- charges against Spain contained the following two factu-
al-allegations by members:
Sometime in November, 1982, while I was working
in the Boat House DT&B, Jason Spain approached
me with pledge cards to sign for another Union-
IBU-Hawaii/SIU.
Signed /s/ Robert M. Kama, Jr.
Book # 3970
Date 3-14-83
On November 17, 1982, on the Tug Momi, Charles
J. Spain approached me and asked me what Union
was I going to vote for; Inlandboatmen's Union of
the Pacific or Inland Boatmen Union of Hawaii. I
said I really didn't know about it yet. Then he
'said-"Stephen we need your vote, your coopera-
tion." I told him that I would. vote for - who I
wanted to vote for.
Signed /s/ Stephen P. Molina
Book Number 0324
Date 3.7.83
Francis- Keane; Phillip lokepa, and William Kahana-
moku were charged with all of the above offenses except
paragraphs-(x) and (t). Additionally, the charges against
Keane contained the following factual allegation:
Sometime before the tub Mana's trip to Long Beach
in November, 1982, Francis Keane approached
DT&B crew members with SIU pledge cards, and
try to get them signed. He was advocating SIU
over Inlandboatmen's Union of the Pacific.
Signed /s/Dorian H. Paia
Book Number 00217
Date 3/24/83
The factual allegations'in the lokepa charges read:
Sometime in November, 1982, the tug Mana crew
was involved in a debate about which union would
represent DT&B employees better.
1264 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
Philip Iokepa and Billy Kahanamoku were for the
SIU. I asked if there was a question of an emergen-
cy on the mainland, what would the SIU do? Philip
lokepa answered that they would fly- a representa-
tive up to the mainland to take care of the-dispute.
Signed /s/ Ronald K. Ancheta
Book No. 0353
Date March 10, 1983
Sometime in November 1982, the tug : Mana crew
was involved in a discussion about which union
would represent DT&B employees better. Philip
Iokepa made..remarks and statements that were in -
favor of SIU and detrimental and harmful to. Inland-
- boatmen's Union of the Pacific.
Signed /s/ Ronald Weber
Book Number 3573
Date March 24/83
Sometime in November 1982, the tug Mana crew
was involved in a discussion about which' union
would represent DT&B employees better. Philip
lokepa made remarks and statements that were in
favor of SIU 'and detrimental and harmful to Inland-
boatmen's Union of the Pacific.
Signed /s/, Wayne Chock
Book Number 00216
Date March 27, 1983
The factual allegation in the Kahanamoku charges
reads:
Sometime in November 1982, the tug Mana crew
was- involved in a discussion about which union
would represent DT&B employees better. William
Kahanamoku made remarks and statements that
were in favor of SIU and detrimental and harmful
-to Inlandboatmen's Union of the Pacific.
Signed /s/ Ronald Weber
Book Number 3573
Date March 24/83
Sometime in November 1982, the tug Mana crew
was- involved in a discussion - about which union
would represent DT&B employees better. William
Kahanamoku made remarks and statements that
were in favor of SIU and detrimental and harmful
to Inlandboatmen's Union of the Pacific.
Signed /s/ Wayne Chock
Book Number 00216
Date.March 27, 1983
The charges against LLewellyn Aloiau and Phyllis
Griep were brought by Gouveia. No factual allegations
were contained in the charges against either of them.
Aloiau was charged with all of the offenses listed above
except paragraph (x), and -Griep was charged with of-
fenses listed - in paragraphs (v), (z), and (aa). The parties
stipulated that similar letters were sent on May 17 to
Lionel Ezera and William Kapule. On June 1, another
letter was sent to Kapule advising him of the date of the
hearing. -
The trial was held on June 5, 6, and 7. On June 5, the
members who brought the charges • testified. William
Kihewa testified that -Kapule gave him an IBU Hawaii
pledge card to sign, "with the understanding that if we
don't sign that we would lose everything in our union "
Ronald Ancheta testified that in November 1982 he
heard Iokepa and Kahanamoku participating in a discus-
sion as to whether Respondent or IBU Hawaii was the
-best union. Both of them gave -pro-IBU Hawaii argu-
ments. Wayne Chock testified that on the voyage of the
tug Momi to Long Beach, Kahanamoku actively tried to
promote IBU -Hawaii in November. Also, he testified,
lokepa said Respondent was not effective enough and
that under IBU Hawaii the employees would have better
representation and generally that it was a better union to
join. -
Dorian Paia testified that in October or November
1982 -Keane - approached him before the Long Beach
voyage and told Paia that the employees would be better
off going with IBU Hawaii. Keane also solicited Paia's
signature on an IBU Hawaii pledge card. -
Ronald Kama testified that Spain asked him to sign a
pledge card for IBU Hawaii. Stephen Molina testified
that Spain approached him on the tug Momi on Novem-
ber 17 and asked him which union he was going to vote
for, IBU Hawaii or IBU Pacific, and spoke in support of
IBU Hawaii. Edward McHugh testified that around No-
vember 19 on the tug Momi, Spain and Keane came
aboard and discussed with him the upcoming election be-
tween IBU Hawaii and Respondent. Spain spoke nega-
-tively about IBU Pacific's constitution, bylaws, and so
forth, and they urged him to talk to the rest of the stew-
ards department . and try to sway them to go to IBU
Hawaii. - -
Gouveia testified that he filed charges against -Aloiau
because he had seen the minutes of the November 6,
1982 meeting of IBU Hawaii which listed Aloiau as a
trustee'and, further, that during the course of the negoti-
ations with Dillingham in the presence of management
representatives Aloiau3 yelled at' Gouveia, walked to-
wards him with clenched fists, and started screaming and
yelling that Gouveia and the committee were interfering
with their proposal and their way of working when
Gouveia made some statement which Aloiau understood
as being at variance with the understanding reached with
the Company regarding the boathouse-an understand-
ing that boathouse employees supported. According to
Aloiau, he stopped Gouveia and told him the boathouse
wanted no talking about any changes.4
3 Aloiau was 'participating in the negotiation sessions as an alternate
member of Respondent's negotiating committee
Gouveia testified , as to the Aloiau incident during negotiations, that
he asked the company negotiator for some clarification on an issue affect-
ing the harbor division that was already settled Aloiau became upset as
this was a sensitive subject in the-harbor department-six-man manning
on a harbor boat when they go out on a tow Aloiau stood up, started
screaming at him , and said he had told Gouveia that they were satisfied
with what they got and accused him of screwing them up by bonging
the matter up again He came towards Gouveia with clenched fists until
another member stopped him It is unclear from the testimony whether
the other member used physical or verbal restraint Aloiau admitted that
an incident did occur during negotiations, but described it slightly differ-
ently
INLANDBOATMEN UNION (DILLINGHAM TUG)
. As to Ezera, Gouveia testified that Ezera was a
member of the executive committee of Respondent, a po-
sition from which he resigned one morning and then on
the evening of that same day was appointed chairman of
IBU Hawaii: Thus, Gouveia testified he was bringing
Ezera up on charges of holding office in a hostile union.
As to Griep, Gouveia testified that he filed charges
against her on the grounds that she took minutes of an
IBU Hawaii meeting on November 13, and also was ap-
pointed a trustee of IBU Hawaii at that meeting. He was
therefore bringing charges against-her as being an officer
in a hostile union.
Gouveia also testified that there was a raid against
IBU Pacific at Dillingham by IBU Hawaii, and that IBU
Hawaii passed some pledge cards and got the 30 percent
that is required to have an election which was proof of a
raid. He further testified that it cost Respondent quite a
bit of money to counter the raid throughout the course
of the IBU Hawaii organizational and election campaign
which commenced 3 to 5 weeks, prior to the filing of the
representation petition. He was questioned as to whether
he observed Aloiau and Griep participating as observers
for IBU Hawaii at the Board-conducted election: He re-
sponded that Aloiau was an observer for 1 day and
Griep for 2 days, and that they- were present at the
counting of the ballots and challenged ballots. He also
stated that Griep was a member of the IBU Pacific nego-
tiating team representing the dispatchers and Aloiau was
her alternate.
After the accusers testified, the defendants were called
for. When they did not respond, the master-at-arms
checked visually and saw -no one. No further testimony
was adduced after June 5. However, the trial committee
met on both June 6 and 7, at which times the defendants
were again called for and, upon no response, the master-
at-arms checked visually for them and found no one. On
each of those days, the trial committee remained for an
hour and a half, but none of the defendants appeared.
On June 21, each of the accused members was sent a
copy of the written decision of the trial committee. The
decision set forth the evidence on which the decision
was based as to each of the accused, and recited that
none of the accused atteiided the hearing although they
were aware of the charges and had reasonable time to
respond, and that each of them had sent in letters stating
they would not attend the trial but none of them denied
the charges as alleged. As to each individual accused, the
decision recited, "Based upon the evidence as submitted,
we find the accused . . guilty as charged "
The evidentiary basis for the decision as set forth in
pertinent part therein reads:
FINDINGS OF. FACT
LLEWELLYN "FRANK" ALOIAU
Gouveia testified about the misconduct engaged in
by Aloiau during contract negotiations between the
Union and Dillingham Tug & Barge. Gouveia also
testified to Aloiau's misconduct during a recent Na-
tional Labor Relations Board election campaign at
the same Employer involving the IBU of Hawaii af-
filiated with the S.I.U N.A., AFL-CIO. Aloiau was
1265
undermining the Union --and interfering with the
Union's campaign in an attempt to destroy the
Union.
LIONEL EZERA and PHYLLIS GRIEP
Gouveia testified about their acts of misconduct
and submitted a document showing Ezera was
named Chairman of the Executive Board of the
IBU of Hawaii , affiliated with S .I.U.N A, AFL-
CIO, and Griep was named a Trustee and was the
Recording Secretary at that Union's meetings.
PHILIP IOKEPA
Both Ancheta and Chock testified about Iokepa's
acts of misconduct seriously interferring [sic] with
and attempting to destroy the Union.
lokepa did not appear at the hearing to offer evi-
dence or testify on his behalf He did send in a
letter stating he would not appear at the hearing but
he did not deny the charges as alleged.
WILLIAM KAHANAMOKU,
Chock testified- to Kahanamoku 's acts of miscon-
duct seriously interferring [sic] with and undermin-
ing the Union in an attempt to destroy it.
WILLIAM KAPULE
Kihewa testified-about Kapule's acts of miscon-
duct seriously interferring [sic] with and undermin-
ing the Union in an attempt to destroy it by cam-
paigning against the Union and actively persuading
other members to join the SIU.
FRANCIS KEANE
Paia testified about Keane's acts of misconduct
seriously intereferring [sic] with and undermining
the Union in an attempt to destroy it by campaign-
ing against the Union and actively persuading other
members to join a rival union.
CHARLES "JASON" SPAIN
Kama, Molina and McHugh all testified about
Spain's acts of misconduct seriously interferring
[sic] with and undermining the Union in an attempt
to destroy it by campaigning against the Union and
actively persuading other members to join a rival
union. In additional [sic], McHugh, testified about
Spain's heavy handedness in his approach and per-
sonally felt intimidated by Spain.
-1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
The Committee finds it necessary to address cer-
tain inherent facts prior to issuing its final decision,
to establish a clear ' precedent and understanding
among all members.
First , as a member of this Union each individual
has taken an obligation oath found in Article III,
Section 7 . Upon taking this solemn oath certain
duties become mandatory with membership as set
forth in Article IV. Violations of the oath or duties
of membership require penalties in order to perserve
[sic] the order of unity and strength if this Union is
to survive.
Second , this Committee is aware the vast majori-
ty of these violations of the Union Constitution oc-
cured [sic] when the Union was fighting for surviv-
al against a raiding rival union at Dillingham Tug &
Barge. Winning the election was crucial to main-
taining the Union in Hawaii . A loss would have se-
riously jeopardized the Union 's very existence It is
at times like that the Union's loyalty is not only de-
manded from its members but is an absolute must.
Third; the Committee wants every member to
know that its findings of violations are not based
upon any member signing an authorization card for
another union so that other union could petition the
- National Labor Relations Board for an election.
The Committee, and the Union, respects the statuto-
ry rights of each and every member , as set forth in
the National Labor Relations Act, which includes
the democratic right to make choices Not one of
the accused found guilty is being penalized or pun-
ished for signing a pledge card for a rival union or
for going to the National Labor Relations Board or
for sitting as an observer at any NLRB conducted
election . We stand by that right and will fight
anyone who attempts to prohibit access to the
NLRB. -
Finally, the Union never stood in the way of any
member - who wished to resign from the Union be-
cause they could not fulfill the obligations of its
oath and duty as a member.
The decision then set forth penalties imposed in the
form of suspension from membership for the following
periods:
Aloiau 17 years
Ezera 15 years
Griep ' 8 years
Iokepa 15 years
Kahananioku 15 years
Kapule 15 years
Keane 15 years-
Spain 19 years
The decision set forth monetary penalties as follows:
In addition , in fairness to the other members 'who
had to bear the financial burden of securing the ex-
istence of the Union , the Committee investigated
the actual costs to the Union to defend itself against
being destroyed by the accused . The investigation
revealed an amount of $6,908 . 75 as submitted by the
Regional Director of Hawaii.
Therefore, the Committee decided that the eight
(8) guilty members are requested to reimburse the
Union $863.56 each to cover the entire costs of de-
fending the Union
On July 7, the eight suspended members signed and
sent the following letter to Respondent waiving their
right to appeal the decision ' of the trial committee. The
body of the letter reads:
We have considered the Trial Committee 's deci-
sion and the testimonies by the accusers as present-
ed in your trial report dated 21 June - 1983. The ir-
reparable damage, the charges and your trial inflict-
ed on our individual rights, the testimony given' by
the Hawaii Regional Director , and, the severity of
the penalty issued , re-establishes the course of rep-
resentation the Union ' will follow. We also feel very
strongly that ' your IBU Constitution is In direct
conflict with the Constitution of the United States
of America making it virtually impossible for us to
uphold the obligations and duties governed by your
Constitution.
Therefore, we the undersigned hereby waive our
rights to appeal under Article XIX,- section 5 of
your Constitution , realizing fully we are accepting
your sentencing . As for your fine imposed on us,
we would be violating our rights as citizens of the
United States , if we were to make any form. of retri-
bution. - -
We now serve notice that the changes [sic] filed
with the NATIONAL LABOR RELATIONS
BOARD against the IBU of the Pacific for violat-
ing our Section 7 rights, will be pursued. ,
Respondent 's response , contained in a letter dated July
18 and addressed to the eight suspended members, states,
inter alia. -
[Y]ou are incorrect in your belief that we are im-
posing a fine on you. Rather what we are doing is
seeking reimbursement from you as outlined in pre-
vious correspondence to you . Our legal advisors
have assured us that we are well within the law in
the actions we have taken and we fully intend to
pursue collection of your debt to -this organization,
although your failure to pay this particular debt to
this organization will not affect your employment
-status with your employer.,
Your statement concerning the illegality of a certain
part of the IBU Constitution are [sic] equally un-
founded.
By separate letters dated September 6, 1983; and ad-
dressed to each of the eight suspended members, Re-
spondent made a demand that within 15 days they remit
to the Regional Office of IBU Pacific '-payment in the
amount of $863.59 for their individual. shares of the reim-
bursement costs "pursuant to the decision and your obli-
INLANDBOATMEN UNION (DILLINGHAM- TUG)
gations as a member of the IBU." The letters further
state: -
Please be advised and note that your failure to
pay the assessed reimbursement costs will NOT, I
repeat NOT affect your employment with Dil-
lingham Tug & Barge . This amount owned and due
cannot and will not be collected pursuant to the
union security provisions of the current collective-
bargaining agreement with Dillingham . However,
failure to make immediate payment in full or to ar-
range for some installment method of re-payment
will result in collection procedures initiated by our
attorney in the District Court for the State of
Hawaii.
Also, you were informed by the same decision
that you have been suspended from membership in
the IBU . Nevertheless , despite the fact that you
have been suspended , you are still required to
tender the dues , fees and assessments uniformly re-
quired , of all members . (See Section 4, Article
XVIII IBU Constitution). For your information, the
current dues are $78 .00 per quarter or any part
thereof. Effective October 1 , 1983, the dues- will
become 1-1/2 percent of your gross monthly wage.
If you choose not to have your dues on a payroll
deduction , then dues will be $60 .00 per quarter or
which ever is greater. Should you fail to make timely
payment of your dues after proper notice and a
break-down of the calculations in arriving at your
unpaid dues , you will be subject to termination
from employment for failure to comply with the
Union Security provisions of the labor agreement
between your employment and the IBU (See Rule
A-2 Par. B). -
At some point between June 20 and October 4, Aloiau,
Ezera, Griep , Keane, and Spain ceased paying dues to
Respondent . By individual letters dated October 4, Re-
spondent notified each of them that as of October 3 Re-
spondent had not received payment of union dues for the
third quarter of 1983 in the amount of $78. The letter
then sets forth the language of article VIII, "Delinquen-
cy," section 1, of the IBU constitution . In pertinent part,
the quoted language reads:
(a): All dues, fees , assessments or fines which
have become due and remain unpaid shall constitute
a debt to the Union and are subject to assignment
for collection by legal process , in addition to reme-
dies herein provided... .
(c) . . . Any member who has been suspended or
expelled . from membership for failure to pay dues,
initiation fees , assessments , or reinstatement fees
may be terminated from his/her employment in ac-
cordance with the Union Security provisions of the
labor agreement.
The letter further states:
We are expecting payment by the 15th of Octo-
ber, 1983 . If we do not receive payment by October
15th, we have no alternative but to take action.ac-
1267
cording to the working agreement with Dillingham
Tug & Barge Corporation , Rule A2 : Union Recog-
nition and Method of Employment , Paragraph B
Rule A2 : Union Recognition and Mehod [sic] of
Employment ., Paragraph B• Every employee cov-
ered by this Agreement shall, within thirty -one (31)
days after employment with the Employer, or
thirty-one (31 ) days after signing of this Agreement,.
whichever is later , be or become a member of the
Union and shall thereafter as a condition of-contin-
ued employment tender the-dues and initiation fees
uniformly required as a condition of membership.
Any employee failing to conform to this rule shall
be subject to discharge . The Union's request for dis-
missal of an employee- for noncompliance with this
rule shall be furnished the Employer in writing.
Ezera was employed by Dillingham as, a dispatcher.
He testified that . on November 5, 1982, while he was still
a trustee of IBU Pacific , he had a conversation in Gou-
veia 's office with Warren Ditch , who was chairman of
the trial committee , Tom Roster , and several others
members , of IBU Pacific . Gouveia was standing about 6
to 8 feet away . According to Ezera,.he told Gouveia he
had heard there was going to be an IBU Hawaii meeting
and asked if he was going to attend . Gouveia said his
lawyer suggested that he not attend . Ezera said he was
going to attend and that he thought they should all
attend to see what the other side had to say. -One of the
members present said it sounded like Ezera was with
them . Ed McHugh said , "To hell with those people,"
that he did not want anything to do with them . Roster
said , "If anybody is associated with that group, we
should burn them ." At that point , Ezera asked Gouveia,
"Do you condone this? Is that what you want , to burn
your members?" Gouveia said , "I did not say that. He
did." Ditch ' said , "You should know better,' Lionel."
Ezera asked , "What do you mean by that?" Ditch said,
"Go - ask Spain . Go ask Butch Keane . They know."5
Again Ezera asked , "What do you mean9 I don't under-
stand what you mean by `I should know better. Go ask
Butch . Go ask Spain."' Ditch repeated , "Go ask them.
They know." Ezera then said, "If this is the way you,
John , are going to be, I do not want to be a part of this."
Ezera then gave his verbal resignation as trustee.
Ezera testified that on September 12, 1982 (I am sure
this is incorrect and should be 1983 ), Gouveia came into
the dispatch office at Dillingham and asked him for his
signed authorization for the dues deduction : Ezera told
him he was not going to sign an authorization because he
sent a letter to Dillingham stating that union dues were
not to be deducted from his paycheck . Gouveia said,
"Well, I _presume that you are going to pay your dues
directly to the National." Ezera said , "No," that since he
sent the letter to Dillingham he had not paid dues. Gou-
veia said , "Are you telling me you are not going to pay
your dues?" Ezera said , "I did not say that . I just said
that as of the time I sent the letter , I have not paid my
. - ° Butch Keane is Francis Keane
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dues." Gouveia said, "If you do not pay your dues, then
under the contract you will be subject to be replaced."
Gouveia then asked to see Bob Fase, Ezera's supervi-
sor, and told Ezera that l ^ was going to tell Fase that if
Ezera did not pay his union dues he wanted Ezera re-
placed on his . ob. _ According to Ezera, Gouveia left and
about 10 minutes later returned, said he had talked to
Bob Fase, told Fase what he and Ezera had discussed,
and that if Ezera did not pay his dues he would make a
formal written demand to Fase demanding that Ezera be
terminated from his job.
Fase testified that on September 12 Gouveia came" into
his office and said Ezera was going to have to be termi-
nated because he had not been paying his union dues and
that he would be getting a letter out to Dillingham re-
questing that Lionel and certain other individuals, whom
he did not name , be terminated. Fase replied, "Well,
we'll take it from there when we get the letter." Fase
then went into the dispatch office and told Ezera that he
understood the Union was going to attempt to have him
terminated for not paying his union dues. Ezera asked
what that meant, what was going to happen Fase told
him they would take it up when they got the letter from
the Union, that this was nothing official.
On October 15,- Gouveia sent a letter to Dillingham,
the body of which reads:
We have mailed certified letters to the employees
listed below: _
(A copy of the letter enclosed.)
Llewellyn Aloiau
Charles Spain
Phyllis Griep
Lionel Ezera
Francis Keane
We have received the signed return receipts that
they have received these letters, and as of closing at
4:00 p.m of this office on Friday, October 14, 1983,
we have not received any payment of union dues.
We expect Dillingham Tug & Barge to take imme-
diate action on Monday, October 1.7, 1983, as per
our working agreement between the Inlandboat-
man's Union of the Pacific and Dillingham Tug &
Barge signed July 18, 1983 by me, John M. Gou-
veia, Hawaii Regional Director and Perry Kuro-
moto, Employer.
On October 17, Gouveia sent individual letters to each
of the suspended members, the body of which reads:
Enclosed is the detailed itemized list regarding
the reimbursement bill for which I have previously
requested payment. Since payment has not been
forthcoming , I, am again making my position clear
as to the immediate demand herewith for your pay-
ment of $863 59. If this is not possible, with regret I
will seek such' lawful actions as deemed necessary
to insure collection.
If you have any objection to the calculations re-
garding the reimbursement, or to the reimbursement
itself, please contact me by telephone or, in writing
at the telephone and address stated herein. If I hear
no objections or comments within one (1) week
from the date of this letter I will assume that you
agree with the calculations and that it is legal to
seek reimbursement pursuant to your status as a
member in this union.
Please note once again this request for reimburse-
ment has nothing to do with your resort to the Na-
tional Labor Relations Board or it's [sic] procedures
or the exercise of your rights pursuant to section
VII of the National Labor Relations Act, but rather
relates strictly to the duties and obligations imposed
upon membership in this Union.
Enclosed with this letter was the_ following cost break-
down:
IBU COST BREAKDOWN DT&B RAID
October 15th-December 8, 1982
7 weeks
Printing $ 105.76
Xerox 250.00
Mailings 140.30-(l -National
(3-Hawaii 85.30)
55.00)
Meals 129.52
Trial Committee 2500.00
Attorney's Fees 1100.00
21 ACTUALOVERHEAD. (Prorated)
John Gouveia
percent
$1626.66
COST
($7722.21)
Secretary . 747 18 (3558 02)
Rent 122.31 (582.44)
Electric - 13 88 (66 08)
Answering Service 2290 - (109 05)
Telephone 150 24 (71639)
$6908 75
On October 20, Dillingham- sent Goiiveia a letter re-
jecting his October 15 demand for termination of the five
employees in view of its understanding that the subject
employees had been previously disciplined by Respond-
ent resulting in the suspension of their union membership
for many years.
On February 2, 1984, Respondent filed a civil com-
plaint in the District Court of the First Circuit, Honolulu
Division, State of Hawaii, naming the eight employees as
defendants and praying for a judgment requiring the de-
fendants to each pay to Respondent the $863.56 assess-
ment costs levied by the trial committee; and that
Aloiau, Griep, Kapule, Keane, and Spain each be re-
quired to pay to plaintiff $78 in dues for the third quarter
of 1983 and that defendants be assessed costs, filing and
service fees, and attorneys' fees incurred by plaintiff in
bringing the action. At the time of the hearing herein,
this matter was still pending.
INLANDBOATMEN UNION (DILLINGHAM TUG) 1269
B. Conclusions
Respondent argues that the conduct involved herein
was engaged in by the International. Therefore, since the
Hawaii Region was named as Respondent, not the Inter-
national, and since the Regions are treated as local
unions and acts by the International do not automatically
bind the Region, or vice versa, the General Counsel's
case must fail. This argument is belied by the Interna-
tional constitution, which provides:
ARTICLE I
Name, Object and Jurisdiction
Section 1-This Union shall be known as the In-
landboatmen's Union of the Pacific. The Union is a
single entity, national in scope. The - Union's geo-
graphical jurisdiction requires that the membership
be served and represented in various regions of the
United States. These regions are described by geo-
graphical boundaries in this Constitution for admin-
istrative convenience only. The use of the words
"region" or "regional" are not to be considered to
detract from or impair the national integrity of the
Union or to create autonomous organizations within
the national structure. The use of the term "nation-
al" or "national union" as used in this Constitution
are description terms only to avoid confusion with
those provisions applicable to geographical regions.
ARTICLE VI
Structure of the Union
Section 2-Regions-Although the Union is a
single entity, National in scope, its geographical ju-
risdiction requires that offices of the,.Union be es-
tablished in various regions of the United States in
order to properly service and represent its members.
These regions are described by geographical bound-
aries for administrative convenience and are not to
impair the National integrity of the Union or to
create autonomous organizations within the Nation-
al structure.
Accordingly, I reject this argument and consider the
merits of the complaint allegations.
The consolidated complaint alleges that Respondent
violated Section 8(b)(1)(A) of the Act by imposing court-
collectible fines on Aloiau, Ezera, Griep, Iokepa, Kahan-
amoku, Kapule, Keane, and Spain because they joined
and supported IBU Hawaii in a Board election and by
threatening them with a lawsuit for failing to pay such
fines. The facts are generally undisputed . Intraunion
charges were filed against them alleging their support of
IBU Hawaii. They were tried by a trial committee con-
vened by Respondent, found guilty, and suspended from
union membership for periods generally of 15 yearss and
monetary penalties were assessed against them.
8 Greip was suspended for 8 years, Spain for 19 years, and the other
six for 15 years.
Respondent argues that the trial committee did not
impose fines against the eight accused in the sense that
fines refer to a sum of money imposed as punishment to
vindicate the Union's authority over the member.
Rather, the money sought is a request for reimbursement
that has been treated as an assessment. Further, accord-
ing to Respondent, there is some doubt that these "as-
sessments" are court collectible and thus the allegation is
premature in the absence of proof that a court will en-
force the assessment and treat it as a fine in allowing it
under the Union's constitution. -
It is obvious from the trial committee's decision that
Respondent has attempted to circumvent Board law by
referring to the monetary penalities imposed by the,com-
mittee as reimbursements. However, regardless of what
the penalties are called, they remain penalties imposed by
Respondent, pursuant to its constitution, upon a finding
that the eight accused were guilty of violations of article
XVIII, section 1, of Respondent's constitution. That
same article sets-forth what penalties can be imposed:
ARTICLE XVIII
Offenses and Penalties
Section 1-The Grounds for Charges Against
Members or Officers.
The basis for charges against members or officers
shall consist of, but not be limited to, the following:
Section 2-Penalties-
Penalties may be imposed upon members or offi-
cers found guilty of charges consisting of fines, not
to exceed $5,000 per offense, and/or suspensions or
expulsions from the Union.
Section 4-Any-member under suspension for an
offense under this Article shall continue to pay all
dues and assessments, and must observe his duties to
the Union, members, officials, and job holders.
In the circumstances, I find that the monetary penal-
ties imposed against these eight members are fines More-
over, even assuming arguendo that in the circumstances
there - exists some distinction between fines and reim-
bursements, for reasons set forth below, my findings and
conclusions would remain unchanged.
I also reject Respondent's argument as to the impact
on the matter of any doubt as to whether the "requests
for reimbursement" are court collectible. Whatever un-
certainty exists flows from Respondent's attempt to cir-
cumvent Board law by labeling fines as requests- for re-
imbursement. It is clear that Respondent at all times in-
tended to enforce the imposition of these fines through
court proceedings, if necessary. The fined members were
notified in the July 18 letters of Respondent's intent to
pursue collection of the fines. These members could only
assume that Respondent was referring to its intent to in-
stitute legal proceedings.
This is particularly true in view of article VII of Re-
spondent's constitution, which provides:
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
ARTICLE VIII
Delinquency
Section 1-All dues or assessments or fines
which may have become due and remain unpaid
shall constitute a debt to the Union and are subject-
ed to assignment and to collection by legal process,
in additional to internal remedies herein provided.
Further, any doubt as to Respondent's intent was re-
moved by its -September 6 letters which specifically
stated that failure to pay would result in collection pro-
cedures being instituted in the' District Court for the
State -of Hawaii.
- It is . well established that a union has a right to pro-
mulgate its own rules and to impose reasonable discipline
on members who do not obey such rules. NLRB v. Allis-
Chalmers Mfg. -Co., 388 U.S. 175 (1967). However, such
enforcement is lawful only when the rule reflects-a legiti-
mate union interest, impairs no policy-that Congress has
embedded ' in the labor laws, and 'is reasonably enforced
against union members . Thus, a union may not enforce a
rule that "invades or frustrates an overriding policy of the
labor laws." Scofield v. NLRB, 394 U.S. 423, 429-430
(1969).
The General Counsel contends that Respondent's con-
duct is unlawful because it contravenes the overriding
public labor policy of safeguarding prompt, unimpeded
access to the Board's processes by employees. In uphold-
ing the Board's finding that expulsion from a union for
filing a charge with the Board was unlawful, the Su-
preme Court stated, "[Section] 8(b)(1)(A) assures a union
freedom of self-regulation where its legitimate -internal
affairs are concerned. But where a union rule penalizes a
member for filing an unfair labor practice charge with
the Board, other considerations of public policy come
into play. . . . Any coercion used to discourage, retard,
or defeat that access is beyond the legitimate interests of
a labor organization." NLRB v. Marine & Shipbuilding
Workers, 391 U.S. 418, 424 (1968).
However, a union may expel, but not fine, a member
for initiating a decertification or deauthorization petition.
Allied Workers Local 125 (Blackhawk -Tanning), • 178
NLRB 208 (1969); Machinists Local 113 (American Hospi-
tal), 207 NLRB 795 (1973). The rationale for distinguish-
ing between -fines and expulsion as set forth in Black-
hawk, 178 NLRB 208-209, is: .
The rule permitting a, union to expel a member
seeking its decertification is an exception to the rule
prohibiting a' union from penalizing a union member
'because he has sought to invoke the Board's proc-
esses . The exception is based on the necessities of
the situation, the right of the union to defend itself.
It is buttressed by the fact that the deterrent or pu-
nitive effect of ezpulsion in such circumstances is at
most minimal. -
In short, where the union member is seeking to
decertify' the union, the Board has said that the
public policy against-,permitting a union to penalize
a member because he seeks the aid - of the Board
should give way to the union's right to self-defense.
But when a union only fines a member because he
has filed a decertification petition, the effect is not
defensive and can only be punitive-to discourage
members from seeking such access to the Board's
processes; 'the union is not one whit better able to
defend itself against decertification as a result of the
fine. The dissident member could still campaign
against the union while remaining a member and
therefore be privy to its strategy and tactics.
Because the two situations=expelling a member
for filing a decertification 'petition and fining him
for the same reason-are thus qualitatively different,
they call for different legal conclusions.
Following this rationale , the Board has found violative
of Section 8(b)(1)(A) of the Act the fining of a member
for signing authorization cards for and otherwise sup-
porting a rival' union seeking to replace 'the respondent
union as bargaining representative, concluding that there
is no significant distinction, only a difference of form, be-
tween conduct directed toward decertifying a union and
conduct directed toward replacing the- incumbent union
with another union . Operating Engineers (Elcon Pipe-
liners), 247 NLRB 203 (1980); Communications Workers
Local 6306 (Vactec, Inc.), 212 NLRB 768 (1974); Tri-
Rivers Marine Engineers (US. Steel), 189 NLRB 838
(1971).-
Respondent does not seriously dispute' that Spain,
Keane, Kapule, lokepa, Kahanamoku, and Aloiau were
disciplined because they supported IBU. Hawaii during
the preelection campaign . Respondent contends, howev-
er, that Ezera and Gnep were disciplined because they
were officers of IBU Hawaii and because Griep took
minutes of the November 6 and 13 IBU Hawaii meet-
ings ; and that none of the eight were disciplined for sign-
ing IBU Hawaii authorization cards, for going to the
Board, or for sitting as an observer ate any Board-con-
ducted election. -
I find no merit in Respondent's contention as to Ezera
and Griep. The eight members were tried together. It is
apparent from the transcript of the trial committee hear-
ing that the central theme of the charge's was the ac-
cused's support of IBU Hawaii in its attempt to replace
Respondent as the bargaining representative at Dil-
lingham. The minutes which Griep took were of meet-
ings within 2 weeks prior to the election which were de-
voted to discussions of employee concerns regarding
terms and conditions of employment at Dillingham, to
employee dissatisfaction with Respondent's representa-
tion, and to planning strategies for winning the election.
Thus, these meetings were an integral part of the -pree-
lection campaign. - ' - '
Griep's role as recorder at the, meeting and her and
Ezera's appointment at one of the meetings as interim of-
ficers of IBU Hawaii are inextricably intertwined with
the preelection 'campaign. Further, it is . apparent that
Gouveia and the trial committee so viewed it. Thus, the
trial committee decision recites that Gouveia submitted 'a
• document to establish that they held offices in 'IBU
Hawaii and testified about their acts of misconduct. The
transcript of the hearing shows that Gouveia testified
that Ezera and Griep were IBU Hawaii observers at the
INLANDBOATMEN UNION (DILLINGHAM TUG) 1271
election. Gouveia also . testified generally that IBU
Hawaii raided Respondent by soliciting authorization
cards. He further testified.
As far as I'm concerned, these people have been
given more than a fair chance, especially Charles
Spain, he did it two years ago, we have records of a
Labor Phone Book here showing him as chairman
of IBU/SIU, in the 1981 issue. Then to come back
two years later and try to take our members, into a
Union that doesn't even really exist. They don't
have a charter,. they don't have an office, nobody
on the payroll. They have two companies, Dole and
Sealboats that do no [sic] have any representation. I
feel it is a personal vendeta [sic ] for some reason.
I don't feel it is right to take the membership into
something that doesn't exist and be more damaging
to the members, their families and their livelihood.
And these people that followed Jason, I cannot see
why, some of them-have been tried here, maybe
they were initimidated [sic] and pressured into it.
But like I say, he was just trying, I don' know the
reason, just out right to hurt-our membership, espe-
cially our livelihoods. We have proof, you can look
at both Dole and Sealboat, right now, they ain't got
nothing,: no enforced contracts, pensions or what-
ever. So why try to take our membership and force
them into something like that,-if you don't like how
the union is run, how I run the union, then vote me
out. If you don't like the President or'what, -vote
him out; but don't hurt the rest of the membership
and take them into something like that. So I hope
the Trial Committee takes all that into consideration
when they are reaching their decision.
It is apparent from Gouveia's testimony that although
the factual allegations as to each of the accused may
have varied somewhat, they were. all brought up on
charges because they supported IBU Hawaii in its at-
tempts through Board proesses to replace Respondent as
bargaining representative of the Dillingham employees
That Griep and Ezera were not excepted is underscored
by the fact that they were fined in the same amount as
the others and that the amount of the fines was repre-
sented to them by Respondent as being Respondent's
cost in conducting its preelection campaign as appor-
tioned among the eight accused. The trial committee's
self-serving recitations that its findings are not based on
the signing of authorization cards for a rival union or for
going to the National Labor Relations Board, or for
acting as observer at the Board-conducted election are
not, in the circumstances, sufficient to change my con-
clusions.
In all the circumstances, I find that Respondent im-
posed fines, on Lionel Ezera, Phyllis Griep, Philip
Iokepa, • William Kahanamoku, William Kapule, Francis
Keane, and Charles Spain because they supported IBU
Hawaii in its attempts to replace Respondent through a
Board-conducted election as bargaining representative of
the Dillingham employees. By such conduct, Respondent
has restrained, the employees in their right of free access
to the Board . Accordingly , I find that Respondent there-
by violated Section 8 (b)(1)(A) of the Act.
I also find that by threatening in its September 6 and
October 3 letters to take , and by taking , legal action to
collect said fines , Respondent violated Section 8(b)(1)(A)
of the Act. -
I further find that -by requesting the discharges of
Llewellyn Aloiau , Charles Spain , Phyllis Greip , Lionel
Ezera , and Francis Keane for failure to pay dues while
simultaneously denying them the rights and privileges of
union membership by suspending them from such mem-
bership for periods ranging from 8 to 19 years because
they joined and/or supported IBU Hawaii in a National
Labor Relations Board election , Respondent has violated
Section 8 (b)(2) and (1)(A) of the Act. Communications
Workers Local 1104 (New York Telephone), 211 NLRB
-114(1974).
CONCLUSIONS OF LAW
1.- Dillingham Tug & Barge Company is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Inland Boatmen 's Union of the Pacific, Hawaii
Region , and Inland Boatmen 's Union of Hawaii , affiliated
with Seafarers International Union of North America,
each is a labor organization within the meaning of Sec-
- tion 2(5) of the Act. _
3. By imposing court -collectible fines on Llewellyn
Frank Aloiau , Lionel Ezera , Phyullis Greip , Philip
Iokepa , William Kanahamoku , William Kapule , Francis
Keane , and Charles Jason Spain because these employees
,joined and/or supported the Inland Boatmen ' s Union of
Hawaill , affiliated with Seafarers International Union of
North America in a National Labor Relations Board
election ; and by threatening to take , and.by taking, legal
action to collect said fines , Respondent has engaged in,
unfair labor practices in violation of Section 8(b)(1)(A)
of the Act.- - - -
4. By attempting to cause Dillingham Tug & Barge
Company to discharge employees Llewellyn Frank
Aloiau , Charles Jason Spain , Phyllis Greip, Lionel
Ezera , and Francis Keane for failure to pay dues in ac-
cordance with the union -security provision of the collec-
tive-bargaining agreement while simultaneously denying
them the rights and privileges of union membership by
suspending them from such membership for periods
ranging from 8 to 19 years because they joined and/or
supported the Inland Boatmen 's Union of Hawaii, affili-
ated with Seaferers International Union of North Amer-
ica • in a National Labor Relations Board election, Re-
spondent has engaged in unfair labor practices in viola-
tion of Section 8(b)(2) and (1)(A) of the Act.-
5. The aforesaid unfair labor practices are' unfair labor
practices affecting ' commerce within the meaning of-Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
firmative action designed io effectuate the purposes of
the Act.
Affirmatively, I shall recommend that Respondent be
ordered to rescind the unlawfully imposed fines, expunge
any reference thereto from its files and records, immedi-
ately notify the employees of such action, and reimburse
them for any part thereof which may have been collect-
ed, with'interest thereon as prescribed in Florida Steel
Corp., 231 NLRB 651 (1977).'
Since I have found that the fines were unlawfully -im-
posed, I shall recommend that Respondent withdraw or
otherwise seek dismissal of its action in Civil No. 'H84-
525 -before the State District Court of Hawaii or any
similar action with that forum or elsewhere for the col-
lection of the fines; and reimburse the fined employees
for all reasonable expenses and legal fees incurred by
them, plus interest, in defending against such legal ac-
tions . Baptist Memorial Hospital, 229 NLRB 45 (1977),
enfd. in relevant part 583 F.2d 906 (6th Cir. 1978); Frost-
burg Village Nursing Home, 263 NLRB 651 (1982).
-Since I have found that Respondent unlawfully re-
quested the discharge of certain employees, I shall also
recommend that Respondent immediately - notify Dil-
lingham Tug & Barge Company that it withdraws its 're-
quests. for the terminations of Llewellyn Frank Aloiau,
Lionel- Ezera, 'Phyllis Griep, Francis Keane, and Charles
Jason Spain; and immediately notify each of those em-
ployees, in writing, that it has withdrawn the requests-
for their terminations. - -
On. these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
ORDER
- The Respondent, Inland Boatmen's Union-of the Pacif-
ic, Hawaii Region, its officers, agents, and representa-
tives, shall -
1.'Cease and desist from
(a) Imposing court-collectible fines on Llewellyn
Frank Aloiau, - Lionel Ezera, Phyllis Gnep, Philip
lokepa, William Kahanamoku, William Kapule, Francis
Keane , and Charles Jason Spain because those employees
joined and/or supported the Inland Boatmen's Union. of
Hawaii, affiliated • with Seafarers International Union of
North America in a National Labor Relations Board
election;- and threatening to take, and taking, legal action
to collect said fines.
- (b) - Attempting to cause Dillingham Tug & Barge
Company - to discharge employees Llewellyn -Frank
Aloiau, Charles -Jason Spain, Phyllis Griep, Lionel
Ezera, and Francis Keane for failure to pay dues in ac-
cordance with the union-security provision of the collec-
tive-bargaining agreement while simultaneously denying
them the rights and privileges of union membership by
suspending them from such membership for periods
ranging from 8 to 19 years because they-joined and/or
supported the Inland Boatmen's Union of Hawaii, affili-
ated with Seafarers International Union of North Amer-
ica in a National Labor Relations Board election.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section' 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the fines levied against Llewellyn Frank
Aloiau, Lionel Ezera, Phyllis Gnep, Philip Iokepa, Wil-
liam Kahanamoku, William Kapule, Francis Keane, and
Charles Jason' Spain because -those employees Joined
and/or supported the Inland Boatmen's Union of Hawaii,
affiliated with Seafarers International of North. America
in a National Labor Relations Board election; expunge
any reference thereto from its files and records; immedi-
ately notify said employees of-such action; and reimburse
them for any portion of the fines which may have been
collected, with interest. -
(b) Withdraw or otherwise seek dismissal of its action
in Civil No. H84-525 before the State District Court of
Hawaii or any similar action with that forum or else-
where for the collection. of the fines.
- (c) Reimburse,the fined employees for all reasonable
expenses and legal fees incurred by them, plus interest, in
defending against -such legal actions.- -
(d) Immediately notify Dillingham Tug' & Barge Com-
pany that it withdraws its requests for the termination of
Llewellyn Frank Aloiau, Lionel Ezera, Phyllis Griep,
Francis Keane, and Charles Jason Spain; and immediate-
ly notify each of those employees, in writing , that it has
withdrawn the requests for their terminations.
(e) Post at its business office and meeting halls copies
of the attached notice marked "Appendix."9 Copies of
the notice, on forms provided" by the Regional Director
for Region 20, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall'be taken by the Respond-
ent to ensure-that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the- Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. -
7 See generally Isis Plumbing Co, 138 NLRB 716 (1962) -
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , 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 pur-
poses
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 Na-
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "