International Longshore and Warehouse Union (Pacific Maritime Assoc.)

National Labor Relations Board - Board Decisions

Dec 13, 2017

365 NLRB No. 149 (N.L.R.B. 2017)

365 NLRB No. 149
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
International Longshore and Warehouse Union and
Pacific Maritime Association and Edmund
Oberti. Case 19–CB–169296
December 13, 2017
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On May 25, 2017, Administrative Law Judge Ariel L.
Sotolongo issued the attached decision. The Charging
Party filed exceptions with supporting argument and a
reply,1 the Intervenor filed an answering brief, and the
Respondent filed a reply to the Intervenor’s answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. December 13, 2017

1 In its answering brief, the Intervenor argues that the Charging Par-
ty’s exceptions should be dismissed for failure to comply with Secs.
102.46 and 102.114 of the Board’s Rules and Regulations. Although
the Charging Party’s exceptions do not conform in all respects to the
Board’s Rules, they are not so deficient as to warrant dismissal, particu-
larly in light of the Charging Party’s pro se status. See Budget Heating
& Air Conditioning, Inc., 333 NLRB 199, 199 fn. 2 (2001), citing
A.P.S. Production/A Pimental Steel, 326 NLRB 1296, 1297 (1998)
(“The Board typically has shown some leniency toward a pro se liti-
gant’s efforts to comply with our procedural rules.”). There are no
exceptions to the judge’s dismissal of the allegation that the Respond-
ent failed to timely respond to a written request to reconsider its posi-
tion.
2 The Charging Party has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 We adopt the judge’s finding that the complaint allegations were
untimely under Sec. 10(b) of the Act. We find it unnecessary to pass
on whether the Respondent, in its role on the Joint Coast Labor Rela-
tions Committee, was subject to the duty of fair representation in its
initial handling and 2015 review of the Charging Party’s grievance.
We agree with the judge that, even assuming that the Respondent had
such a duty of fair representation, the evidence fails to show that the
Respondent acted arbitrarily, discriminatorily, or in bad faith.
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Ann Marie Skov, Esq., for the General Counsel.
Rob Remar, Esq. (Law Office of Rob Remar), for the Respond-
ent.
Richard F. Liebman, Esq. (Barran Liebman LLP) and Todd
Amidon, Esq. (Pacific Maritime Association), for the Inter-
venor.1
DECISION
STATEMENT OF THE CASE
ARIEL L. SOTOLONGO, Administrative Law Judge. The core
issue in this case is whether the International Longshore and
Warehouse Union (Respondent or ILWU) breached its duty of
fair representation toward Edmund Oberti (Oberti) in October
2015, by declining to reconsider its position in a 2012 decision
by a grievance-arbitration panel that terminated Oberti’s regis-
tration and privileges in a dispatch hall. Subsumed within that
issue are two additional issues that must first be addressed in
order to decide the core issue: first, whether Section 10(b) of
the Act precludes this complaint against Respondent; and if not,
whether Respondent, in its role as a member of the grievance-
arbitration panel, owes a duty of fair representation toward
Oberti in these particular circumstances—and the nature of
such duty.
I. PROCEDURAL BACKGROUND
Based on an initial charge on February 5, 2016, and an
amended charged on March 24, 2016, filed by Oberti, the Re-
gional Director for Region 19 of the Board issued a complaint
on August 25, 2016, alleging that Respondent had violated
Section 8(b)(1)(A) of the Act in October 2015 by refusing to re-
consider its 2012 decision, as part of a grievance-arbitration
panel, to reinstate Oberti to the dispatch hall. It also alleges
that Respondent violated Section 8(b)(1)(A) by failing to re-
spond, until May 20, 2016, to a written request sent by Oberti’s
attorney on December 8, 2015, requesting that Respondent re-
consider its position to reinstate Oberti. Respondent filed a
timely answer denying the substantive allegations and raising
affirmative defenses, including the defense that the conduct

1 Both Mr. Liebman and Mr. Amidon appeared for the Intervenor
(PMA) at trial, but only Mr. Liebman appears on brief.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
alleged in the complaint was time-barred by Section 10(b) of
the Act. Thereafter, on November 14, 2016, I granted a motion
by the employer, Pacific Maritime Association (PMA or Inter-
venor) to intervene in this case, since its interests might be
affected by the outcome. I presided over this trial in Seattle,
Washington, from November 29 through December 1, 2016.
II. JURISDICTION AND LABOR ORGANIZATION STATUS
Based on a joint stipulation by the parties,2 I find that the
employer-intervenor, PMA, is a California nonprofit mutual
benefit corporation headquartered in San Francisco and with
branch offices in West Coast cities, including Seattle. Its
members include for-profit stevedore companies, marine termi-
nal operators, and maintenance contractors that employ long-
shoremen and other categories of dockworkers at ports in Cali-
fornia, Oregon, and Washington. It is a multiemployer collec-
tive-bargaining agent whose primary purpose is to negotiate,
enter into, and administer on behalf of its members collective-
bargaining agreements with Respondent and certain of its affil-
iated local unions, including ILWU Local 19 in the Port of
Seattle. Annually, from January 1, 2010, to the present, some
of the employer-members of PMA have derived gross revenues
in excess of $50,000 for furnishing or functioning as essential
links in the transportation of passengers, freight, or both from
Washington to other States or foreign countries. Accordingly, I
find that at all material times, PMA and its employer-members
have been employers engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
Respondent admits, and I find, that it is a labor organization
within the meaning of Section 2(5) of the Act.
III. FACTS
A. Background
At the outset, I note that, as Counsel for the General Counsel
(CGC) admits in her brief, most of the facts in this case are not
in dispute. Respondent ILWU and PMA have had a long-
standing collective-bargaining relationship covering the con-
stituent employer members of PMA and longshore workers
employed by them in ports throughout the west coast of the
United States.3 This relationship is governed by the Pacific
Coast Longshore Contract Document (PCLCD or Coast
Agreement), a collective-bargaining agreement that has been in
effect for sequential and discrete time periods for many years.
The Coast Agreement in place during most of the events at

2 Jt. Exh. 6. Hereinafter, General Counsel’s exhibits will be referred
to as “GC Exh.,” followed by the corresponding number of the exhibit;
Respondent exhibits will be referred to as “R. Exh.;” Intervenor exhib-
its will be “I Exh.;” and joint exhibits as “Jt. Exh.” Transcript citations
will appear as “Tr.,” followed by the page number(s).
3 The collective-bargaining relationship between the ILWU, its af-
filiate local unions, PMA, its constituent employer members and their
predecessors date back to the 1930’s. Indeed, many of the contractual
structures still in place today are based on a decision by the Long-
shoremen’s Board set up during the FDR administration to resolve
longstanding—and sometimes violent—disputes in that industry at the
time. A copy of the Longshoremen’s Board decision was introduced as
R. Exh. 4. See, also, Shipowners’ Association of the Pacific Coast, 7
NLRB 1002 (1938).
issue herein was in effect by its terms from July 1, 2008, to July
1, 2014 (GC Exh. 2). One of the distinct features of the collec-
tive-bargaining relationship between PMA and the ILWU, in an
arrangement that dates back to the 1930s, is that the process of
hiring and dispatching individuals for employment in the long-
shore industry is jointly administered by the PMA and ILWU-
affiliated local unions from joint “dispatch halls.”4 Pursuant to
Section 17 of the Coast Agreement, dispatch halls in each port
are thus jointly controlled and operated by local PMA employ-
ers and the local union affiliate(s) of the ILWU for that port,
acting through the Joint Port Labor Relations Committee
(JPLRC or Port Committee), which administers the lists of
registered longshoremen, and handles any grievances filed by
the workers, employers, or the local union(s).5 Under the Coast
Agreement, the Port Committees report to and are under the
ultimate control of the Joint Coast Labor Relations Committee
(JCLRC or Coast Committee), which is based in San Francisco
and functions as an appellate body to review grievances and
other disputes that are unresolved by the Port Committees or
appeals from decisions by the Area Arbitrator.6 As with the
Port Committee(s), the Coast Committee is comprised of equal
number of members of the ILWU and PMA, with each side
getting 3 votes regardless of the amount of individuals actually
named to that Committee.
Uncontroverted testimony by members of both the labor side
as well as the management side of the Coast Committee, as
well as the terms of the Coast Agreement, establishes that the
Coast Committee functions as an appellate body when deter-
mining the outcome of appeals of disputes coming from either
the Port Committee(s) or the Area Arbitrator. As an appellate
body, it does not receive testimony from witnesses, but rather
relies on a written record submitted to it from the lower panel
or arbitrator. Its decisions are final, unless there is a tie vote
and one side (or both) opts to submit the dispute to the Coast
Arbitrator for resolution. Even if there is a tie vote, however,
many such disputes are not submitted to the Coast Arbitrator,
because either side may believe the facts to be weak, and may
therefore be hesitant to create a poor precedent that might con-
tradict the letter or spirit of the Coast Agreement. Significant-
ly, witnesses for both the labor side as well as the management
side testified that their loyalty as Coast Committee members

4 This arrangement thus differs from that of typical “hiring halls,”
such as those operating in the construction industry, which are solely
controlled by the union.
5 The Port Committee for each port is composed of equal number of
members from each side, the local union affiliates of the ILWU and the
employer members of PMA.
6 A chart introduced into evidence as R. Exh. 1 shows the different
paths a dispute can follow to reach the Coast Committee (JCLRC), or
ultimately the Coast Arbitrator. Some disputes are appealed directly
from the Port Committee to the Coast Committee, while others first go
to the Area Arbitrator before they can be appealed to the Coast Com-
mittee. For example, issues related to health and safety, work stop-
page(s), discipline, and dispatch hall and hours disputes go from the
Port Committee to the Area Arbitrator before they are appealed to the
Coast Committee. Disputes related to registration (in dispatch halls), as
occurred in the present case, as well as those related to the ADA,
USSERA, and Section 17.4 discrimination issues, proceed directly
from the Port Committee to the Coast Committee for resolution.
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION (PACIFIC MARITIME ASSOCIATION) 3
was not towards their respective sides, but rather towards pre-
serving or protecting the “sanctity” or “integrity” of the Coast
Agreement.7 Accordingly, members of the Committee or panel
would often vote against the interests of the “side” that had
appointed them in order to preserve and protect the letter and
spirit of the Coast Agreement. Uncontroverted testimony also
established that the Coast Committee typically receives and
handles approximately 500 disputes per year.
It is also uncontroverted that there are three (3) types of
workers that are registered to be dispatched from the dispatch
halls in each port, pursuant to the terms of the Coast Agree-
ment: Class “A” registrants (also called A members or A men);
Class “B” registrants (B members); and identified casuals (also
called casuals or ID casuals).8 There is a distinct “pecking
order” for dispatching: Class A members have top priority,
followed by Class B members, followed by identified casuals.9
The rules and procedures regarding registration at the dis-
patch halls, as well as the requirements needed for initial inclu-
sion or advancement within the registry, are controlled and
determined by the Coast Committee pursuant to the Coast Con-
tract. Because of the potentially dangerous nature of the work
in the longshore industry, where serious injury and even fatal
accidents are a reality, the industry has a zero tolerance policy
with regard to drug and alcohol abuse. Accordingly, drug and
alcohol tests are routinely administered to all who are dis-
patched from the halls, at different times and different occa-
sions as needed. The Coast Committee determines when test-
ing is done and what procedures are used in these tests. One of
the occasions when such testing is routinely employed is when
new registrants are to be added or advanced into the Class A or
B lists. In 2010, the Coast Committee agreed to add 45 new
registrants to the Class B list in the port of Seattle, Washington.
The dispatch hall in that port is jointly controlled and adminis-
tered by PMA and the local union affiliate of Respondent,
ILWU Local 19 (Local 19), and the Coast Committed delegated
the task of notifying the eligible candidates to the Port Commit-
tee composed of PMA and Local 19 members. On July 29,
2010, the Port Committee by letter notified the registered casu-
als with the most hours worked, in accordance to the dispatch
hall rules, that such registry was opening, and that those who
applied had to submit to a drug test on August 7, 2010.10 The
controversy in this case stems from the events that followed, as
described below.

7 This is based on the testimony of Leal Sundet, an ILWU member
of the Coast Committee from 2006 to 2015, and the testimony of Rich
Marzano, a PMA member of the Coast Committee from 2006 (or 2007)
to 2015. (Tr. 291; 399). I found both Sundet and Marzano to be credi-
ble witnesses, whose testimony was unhesitant and clear—and uncon-
troverted, as indicated above.
8 When needed, dispatch halls also dispatch “unidentified” casuals,
although that appears to have occurred very seldom in the past few
years.
9 In addition to having priority for dispatching purposes, Class A
members have full health, welfare and pension benefits, as do Class B
members to a lesser degree; casuals have no such benefits. Needless to
say, because of the perks of having Class A or B status, achieving such
status is a much sought-after goal in the longshore industry.
10 A list of eligible identified casual individuals eligible for the
Class B registration was also posted at the dispatch hall. (Tr. 348)
B. The Relevant Facts in the Present Case
Oberti, an individual and Charging Party in this case, had
worked as an identified casual longshoreman in the port of
Seattle since 2006, and had earlier worked as an unidentified
casual from 2004 to 2006. He received the July 29, 2010 letter
from the Port Committee advising him of the availability of
limited Class B registration for which he was eligible, and of
the requirement that he submit for a physical examination and
drug/alcohol screening test on August 7, 2010.11 Approximate-
ly 44 other “ID casual” longshoremen, in addition to Oberti,
were sent the letter inviting them to apply for the Class B open-
ings, and advising them of the required physical and
drug/alcohol screening test.
The contractor chosen by the Port Committee to perform the
physical examination and drug/alcohol screening test was U.S.
Health Works Medical Clinic (USHW) in Seattle. Unlike
drug/alcohol screenings done in the past, Local 19 and PMA
representatives jointly decided that the August 7, 2010 testing
would be an “observed” screening, in which the individual
being tested would be required to produce a urine sample while
under the direct observation of a clinician. According to the
testimony of Sandra Starkey, whose job at the time was to rep-
resent PMA in matters pertaining to dispatch hall registration
and drug/alcohol screenings, rumors were circulating at the
time that some individuals might be planning to cheat on the
upcoming drug/alcohol test, and Local 19 officials had in-
formed her that there was actually some betting going on as to
who was going to be successful in doing so.12 Starkey also
testified that PMA received multiple anonymous phone calls at
the time from persons who wanted to know the specifics of the
testing. In these circumstances, the Port Committee was con-
cerned about the possibility of cheating and decided to follow
“observed urination” protocols for the August 7 testing.13
On August 7, Oberti reported to the USHW clinic for the
physical examination and drug/alcohol screening test shortly
after 11 a.m., as scheduled. After checking in, Oberti was led
to an examination room by Trevor Brandt, a lab technician
employed by USHW, who informed Oberti that he was going to
observe him urinate. The essential facts of what followed next
are not in dispute, as described below:14
1. Oberti, under close-up observation by Brandt, could not
produce a urine sample in sufficient quantity despite multiple
attempts that lasted the remainder of the day, until about 5:30
p.m. when the clinic closed;15

11 The drug/alcohol testing requirement for Class B registration is
mandated by Supplement 1A of the Coast Contract (R. Exh. 5, which
also directs that those who fail to satisfactorily pass the test be denied
Class B registration and be terminated from the industry (Tr. 280; 378)
12 The testimony of Starkey was not only uncontroverted, but
straightforward and rich in details. Accordingly, I credit her testimony.
13 All dates hereinafter shall be in 2010, unless otherwise indicated.
14 All parties, in the posttrial briefs, discuss and accentuate addition-
al facts in evidence that at best are tangential to the core issue in this
case, and thus nonessential to its resolution. I will discuss these addi-
tional facts only to the extent they provide some context for the facts
that I believe are essential, as discussed below.
15 According to Oberti’s testimony-which was not refuted—after he
failed to urinate a couple of times under Brandt’s observation, Brandt
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. After a couple of failed attempts by Oberti to produce a
urine sample under close observation, PMA and Local 19 rep-
resentatives agreed with USHW’s recommendation to imple-
ment the “shy bladder protocol” in an attempt to induce urina-
tion;16
3. Under the “shy bladder” protocol, Oberti drank a large
amount of water over the next few hours;
4. Despite having consumed a large amount of water under
the “shy bladder” protocol, Oberti was unable to produce an
acceptable urine sample by the end of the day, as described
above;
5. At the end of the day, after consulting with PMA and Lo-
cal 19 representatives, USHW sent Oberti home after he was
unable to provide a urine sample under observation;
6. USHW informed PMA and Local 19 that under “shy blad-
der” protocol criteria, Oberti’s inability to produce a urine
sample was deemed a “refusal” to comply with the testing;
7. On August 11, the Port Committee decided that Oberti and
two other individuals had failed their required drug and alco-
hol screening test and would be permanently removed from
the dispatch list, effectively removing them from the indus-
try;17
8. On August 16, Starkey, on behalf of the Port Committee,
notified Oberti by letter that because of his failure to comply
with the requirements of the drug and alcohol screening test,
was permanently removed from the dispatch list and the in-
dustry.
Prior to the events described on the last 2 enumerated items
above, on August 9, Oberti had a consultation with a physician,
Dr. Reese, to whom Oberti related what had occurred on Au-
gust 7 regarding his inability to urinate under observation.18

left the examination room to speak with the Clinic Manager, Ms. Shi-
bata, at which time Oberti was able to urinate. When Brandt returned
to the examination room and Oberti produced the urine sample, Brandt
informed him that such sample had to be rejected, because it had not
been produced under observation. On another attempt, while having a
bowel movement, Oberti produced a few drops of urine under the ob-
servation of Brandt, but such sample was deemed to be insufficient for
testing purposes.
16 “Shy bladder” protocols are determined by Department of Trans-
portation (DOT) guidelines adopted by USHW and employed in this
test. These guidelines are in evidence as part of GC Exh. 12, which is
the referral of Oberti’s grievance to the Coast Committee, as will be
discussed below.
17 This decision was again noted on the minutes of the Port Commit-
tee’s meeting dated August 18 (Jt. Exh. 2, p. 2).
18 Oberti testified that his mother recommended that he see Dr.
Reese, who is her physician, and who had never apparently seen or
treated Oberti before. On the evening of August 7, prior to his meeting
with Dr. Reese, Oberti consulted by phone with Dr. Reese’s nurse, who
advised him successfully on how to induce urination that evening.
Oberti admitted that Dr. Reese had simply relied on what he had told
him about the events of August 7 to make a diagnosis, rather than per-
forming any kind of medical tests or analyses. (Tr. 232–233). Oberti
also admitted that this “shy bladder” condition had never occurred to
him previously, or since. (Tr. 236)
Dr. Reese gave Oberti a hand-written note stating “To whom it
may concern: Mr. Edmund Oberti had some transient urinary
problems. He should be allowed to take his urinary toxicology
screen.” (GC Exh. 4). He gave Oberti a prescription for Bus-
perine, a medication to relieve anxiety, with instructions to take
it before any follow-up (urine) test. (GC Exh. 5). Oberti testi-
fied that he personally delivered a copy of the note and the
prescription to PMA and the (Local 19) dispatch hall on the
same day.
On August 18, after Oberti had received the August 16 letter
from the Port Committee notifying him of his removal from the
dispatch list, he obtained another letter from Dr. Reese, this
time typewritten on Dr. Reese’s clinic stationary. The letter
stated “To whom it may concern: Mr. Edmund Oberti . . . was
seen in this clinic on 8/9/10 for urinary hesitancy due to anxie-
ty. He was given a prescription for anxiety for his next drug
testing appointment,” and was signed by Dr. Reese. (GC Exh.
7). Oberti testified he gave this letter to Local 19 shortly there-
after. On August 22, Oberti wrote a letter to the Port Commit-
tee, informing them he was grieving his removal from the dis-
patch list and providing his explanation of the events of Au-
gust 7, including the cause of his inability to urinate, as diag-
nosed by Dr. Reese. (GC Exh. 9).19 Additional letters by Ober-
ti, Dr. Reese and others followed that were forwarded to Local
19, and were made part of the record of the grievance before
the Port Committee, and eventually the Coast Committee, as
discussed below.20
Representatives for Local 19 advocated for Oberti in the
grievance before the Port Committee, taking the position that in
light of his “medical condition,” namely “shy bladder,” he
should be allowed another opportunity to take the drug/alcohol
screening test. PMA opposed giving Oberti another chance,
contending that the proper protocols had been followed during
the August 7 test, and that he had failed to comply with the test
in accordance to those protocols. The grievance could not be
resolved at the Port Committee level, with the parties apparent-
ly deadlocked, and thus the grievance was referred to the Coast
Committee on September 23. (GC Exh. 12).
The grievance lingered at the Coast Committee until Febru-
ary 12, 2012.21 On that date, the Coast Committee unanimous-

19 In the letter Oberti states that he has always “happily” submitted
to drug tests in the past and “successfully passed” those tests. This,
however, is not completely accurate. Oberti admitted that he failed a
drug test in 2007, testing positive for marijuana, and was suspended
and placed on probation by the dispatch hall for 30 days until he was
able to pass successive random drug tests. (Tr. 152–153; 187)
20 These included a letter by Dr. Reese dated August 24, in which he
states, for the first time, that Oberti had suffered an “acute anxiety
attack” on August 7 (GC Exh. 10), and a letter by Oberti to the Port
Committee dated September 7 (GC Exh. 11). Letters were also sent by
DADS, a community organization that Oberti participated in, as well as
a letter from his pastor. These letters formed part of the record present-
ed to the Coast Committee (GC Exh. 12).
21 There were various reasons for the delay, partly having to do with
the large volume of cases handled by the Coast Committee, and partly
because there were several discussions about finding a way to resolve
the dispute to everyone’s satisfaction (Tr. 402; GC Exh. 19). This
resulted in the matter being tabled or held in abeyance several times.
One of the proposed solutions was giving Oberti a new “swab” test,
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION (PACIFIC MARITIME ASSOCIATION) 5
ly decided, in agreement with the position originally taken by
PMA, that the USHW clinic had followed the proper protocol,
and that Oberti had failed to complete the drug/alcohol screen-
ing test in accordance to such protocol. Such failure was
properly deemed a refusal, the Coast Committee concluded,
denying Oberti’s grievance in a final ruling (GC Exh. 13).
According to the testimony of Leal Sundet, one of the ILWU
members of the Coast Committee who took part in the decision,
the committee believed, based on the circumstances, that Oberti
may have been trying to cheat or circumvent the requirements
of the test. They found Dr. Reese’s conclusions, based solely
on what Oberti had told him, without any testing or other exam-
inations, to be suspect, not entitled to much weight. According
to Sundet, the committee concluded that the USHW clinic had
followed the correct protocols. The committee thus agreed
with USHW, which it viewed as the expert in these matters,
that Oberti had failed the test. Rich Marzano, a PMA member
of the Coast Committee who participated in the February 2012
decision to deny Oberti’s grievance, corroborated Sundet’s
testimony. The committee viewed the medical documentation
that had been submitted by Oberti, which was the opinion of a
general practitioner that was based on what Oberti had told
him, which was not given much weight. Instead, the committee
gave controlling weight to the opinion of the USHW clinic
(lab), and found that the proper protocol was followed and that
Oberti had failed the test in accordance to such protocol. In-
deed, Marzano testified, the clinic had taken every reasonable
step to accommodate Oberti and had gone beyond the required
“shy bladder” protocol. Marzano also testified that decisions
by the Coast Committee are final, and that although one side or
the other can request reconsideration of a ruling in the future,
the other side is under no obligation to agree—and that absent
such agreement, the matter remains closed. Typically, the only
reason for such reconsideration would be if new evidence or
information has surfaced that was not available at the time of
the original ruling. As stated earlier, I found Sundet and Mar-
zano to be straightforward and credible witnesses, and thus
credit their testimony.
About a year and a half later, on August 1, 2013, Oberti filed
a lawsuit against PMA and Local 19 in Washington state court
alleging, inter alia, discrimination based on his “disability” for
his removal from the dispatch hall list, pursuant to the events
described above (GC Exh. 14).22 The case was removed to
federal district court, and on February 19, 2014, Oberti volun-
tarily moved to dismiss all claims against Local 19. Thereafter,
PMA filed a motion for summary judgment, and on March 25,
2015, the court issued an order granting in part and denying in

which involved taking a swab of saliva from inside the cheek, a testing
method which would obviously avoid the “shy bladder” problem, since
no urination was involved. This testing methodology was adopted and
implemented by the Coast Committee later in 2012, after its decision
regarding Oberti, but had been under consideration for a while. The
parties, however, could not come to an agreement to resolve the dispute
in such manner, and thus made a final ruling on February 12, 2012.
22 Notably, Oberti never named or added Respondent ILWU as a de-
fendant in the action.
part PMA’s motion (GC Exh. 16).23 Consequently, the matter
was set for trial on the one cause of action (alleged discrimina-
tion based on disability) not dismissed by the court.
On September 24, 2015, PMA, facing an imminent jury trial,
proffered Oberti a settlement offer (I Exh. 2). This settlement
offer contained three (3) distinct settlement scenarios or offers,
each containing different potential levels of (front or back pay)
payments depending on whether the ILWU—whose agreement
as an integral part of the Coast Committee was necessary—
would agree to reinstate Oberti’s privileges in the dispatch hall.
Settlement Offer (or option) “A,” which involved the least
amount of money, would come into play if the ILWU accepted
the offer to place Oberti on the “Class B” dispatch hall list, the
list Oberti had applied for in 2010, contingent upon his passing
a drug/alcohol screening test not involving observed urination.
Settlement Offer “B,” which involved a higher payment figure
to Oberti, would come into play if the ILWU instead accepted
Oberti back on the less senior “ID Casual list,” the list Oberti
was in when the events in 2010 took place. Settlement Offer
“C,” the last one, would come into play if the ILWU did not
accept PMA’s offer to reinstate Oberti to the dispatch hall list
by October 31, 2015. This offer made it clear that it was in lieu
of reinstatement to the list altogether. The settlement proposal
also made it clear that in offering this settlement, PMA was not
admitting any wrongdoing or liability for the events that result-
ed in Oberti’s removal from the dispatch hall list.24
On October 6, 2015, Oberti (through his attorney of record)
accepted PMA’s settlement offer, as outlined above. Accord-
ingly, on October 7, 2015, PMA’s Senior Coast Director for
Contract Administration and Arbitration, William Bartelson,
contacted ILWU’s in-house counsel, Kirsten Donovan, by
phone, and conveyed the terms of PMA’s settlement offer that
had been accepted by Oberti. The settlement terms, in writing,
were forwarded to Donovan by Bartelson via email the follow-
ing day, October 8, 2015 (Jt. Exh. 3). Bartelson had replaced
Marzano as a PMA member of the Coast Committee in October
2015, when the latter’s term expired. He phoned the ILWU’s
new members of the Coast Committee, Frank Ponce de Leon
and Cameron Williams (who had replaced Sundet, whose Coast
Committee term also expired in October 2015) and explained
PMA’s settlement agreement with Oberti, including the 3 op-
tions discussed above. Additional discussions were held, by
phone, between Bartelson, PMA counsel Kathy O’Sullivan, and
ILWU counsel Donovan, during which the ILWU inquired if
any new factual or medical information had come to light since
the Coast Committee’s decision in 2012. Bartelson and
O’Sullivan informed Donovan that no new factual or medical
information regarding Oberti had been provided or revealed.

23 Oberti had claimed 6 distinct causes of action in his suit, and the
court granted PMA’s motion for summary judgment on 5 of those
claims. The court denied the motion for summary judgment on Ober-
ti’s claim of discrimination based on his “disability” as defined by
Washington state law. As more thoroughly discussed below, the court
found that PMA, as to that claim, had not met the significantly high
burden required for dismissal.
24 The full language of PMA’s settlement offer is part of the record
as I Exh. 2 (PMA NLRB 721), with the payment amounts redacted
because of their confidential nature.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Williams testified that he and Ponce de Leon, in their role as
Coast Committee members, reviewed all the documents related
to the 2012 Coast Committee decision, including the medical
information contained in the record as part of Oberti’s griev-
ance. After discussing the matter with the ILWU’s other Coast
Committee members—ILWU’s president and vice president—,
they decided, in view of the lack of any new facts which would
warrant reconsideration of the 2012 Coast Committee decision,
to decline PMA’s invitation to change or overturn that deci-
sion.25 Accordingly, on October 19, 2015, Respondent ILWU,
in a phone conversation between Donovan and O’Sullivan,
informed PMA that it was declining to overturn the February
2012 ruling by the Coast Committee (Jt. Exh. 6). This message
was confirmed in emails exchanged by O’Sullivan and Do-
novan the following day, October 20, 2015 (Jt. Exh. 4). PMA
thereafter notified Oberti’s attorney of the decision by the
ILWU members of the Coast Committee declining to overturn
the 2012 decision, therefore triggering “Settlement Option C,”
which involved a higher payment to Oberti but no re-
instatement to the dispatch hall list.
A few days earlier, on October 15, 2015, the federal court
had issued an order dismissing Oberti’s lawsuit, in light of the
settlement agreement he had entered into with PMA (I Exh. 3,
PMA NLRB 690). In the ensuing months, there were numer-
ous communications between PMA and Oberti’s attorney, in an
attempt to finalize the terms of the settlement agreement and
the payment to Oberti pursuant to the terms of that agreement.26
Thereafter, PMA sent the settlement payment check(s) to Ober-
ti and his attorney, which were cashed.27
Finally, on December 8, 2015, Oberti’s attorney sent ILWU
President Robert McEllrath (a member of the Coast Commit-
tee) a letter requesting Respondent to reconsider its decision not
to reinstate Oberti (to the dispatch hall) (GC Exh. 18). On May
20, 2016, Respondent, through its attorney, responded by letter
to Oberti’s attorney, setting forth Respondent’s position as to
why its members of the Coast Committee had not agreed to
revisit the Coast Committee’s 2012 ruling.

25 I credit Williamson’s testimony, which was uncontroverted, was
straight-forward and appeared completely candid.
26 This was established by the uncontroverted testimony of
O’Sullivan, whose testimony I credit, and by documents that are part of
a federal court motion made by PMA to enforce its settlement agree-
ment with Oberti.
27 As mentioned above, on November 22, 2016, shortly before the
trial in this matter started, PMA filed a motion in federal court to en-
force it settlement agreement with Oberti (I Exh. 3). In its filing, PMA
argues that by filing his Board charge(s), and the ensuing complaint by
the General Counsel, Oberti was trying to make an end run around the
terms settlement agreement, inasmuch he was seeking an order reinstat-
ing him to the dispatch hall list—a remedy PMA argues Oberti waived
as part of its settlement. On January 27, 2017, the court issued an order
concluding that PMA fulfilled its part of the bargain under the terms of
the settlement agreement, and was no longer obligated to support Ober-
ti’s reinstatement—and precluding Oberti from seeking a Board remedy
against PMA. The court did not preclude Oberti from pursuing such
remedy against other parties, so long as the resulting remedies do not
implicate a breach of the settlement agreement. I admitted the court
order into the record as I Exh. 4 in a post hearing order dated February
8, 2017.
IV. DISCUSSION AND ANALYSIS
As briefly outlined in the opening paragraph of this decision,
the core issue in this case is whether Respondent (ILWU)
breached its duty of fair representation toward Oberti by declin-
ing to reconsider, in October 2015, its position as part of a
grievance panel in a 2012 decision sustaining the termination of
Oberti’s registration and privileges in a dispatch hall. Before
addressing that issue, however, I must first address whether
Section 10(b) of the Act precludes the finding of a violation in
October 2015, years after the initial theoretical violation oc-
curred. If such alleged 2015 violation is not precluded, I must
then decide whether Respondent, in its role as a member of an
arbitration panel making a final decision in a grievance, owed a
duty of fair representation toward Oberti—and the nature of
such duty. I will address these issues in that order, below:
A. The Application of Section 10(b)
At the outset, leaving aside the 10(b) issue for the moment, I
must point out that the underpinnings of the General Counsel’s
theory of a 2015 violation necessitate a finding that Respond-
ent’s initial conduct in 2012 was unlawful under the Act, even
if that was never charged. In its role as part of the Coast Com-
mittee, an arbitration panel, Respondent did not do anything
different in 2015 than it did in 2012, and its members in the
2015 panel relied on the same record and essential facts, which
had not changed.28 I simply cannot conceive of a theory under
which Respondent’s conduct was lawful in 2012 but unlawful
in 2015. Accordingly, in discussing the applicability of Section
10(b), we must start with the presumption that Respondent’s
2012 conduct was unlawful, and though no charge was filed
within 6 months of such violation, something occurred in 2015
that revived or refreshed the earlier violation—thus providing
Oberti the opportunity to take the proverbial “second bite” at
the apple, even if Oberti chose not to take a first bite in 2012.29
The General Counsel argues that Sec. 10(b) is not applicable
in this instance, because in 2015, Respondent failed to take the
requested action—reconsidering the 2012 decision—for arbi-
trary, discriminatory, and/or capricious reasons. This argument
misses the entire point, however, as well as the raison d’ etre
behind Sec 10(b). Simply put, Respondent (as part of the Coast
Committee) arguably failed to take the same requested action in
2012—reinstating Oberti to the dispatch hall—for the same
arbitrary, discriminatory, and/or capricious reasons. Asking the
Coast Committee (or a component thereof), in 2015, to recon-
sider its final 2012 decision should not serve as a resuscitation
tool for a cause of action that expired 6 months after the final

28 While the General Counsel does not directly concede this, it is
apparent from the nature of its arguments on brief, where it rails at the
basic unfairness and impropriety of the Coast Committee’s 2012 deci-
sion, that this presumption lies at the core of its argument. The General
Counsel nevertheless insinuates that the facts had changed in 2015, an
assertion I disagree with. Even if there was a change, such change was
inconsequential as discussed below.
29 Oberti did file charges against Local 19 in 2011, which were later
withdrawn, apparently at the urging of the Region. (R. Exhs. 2; 3; Tr.
223–224)
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION (PACIFIC MARITIME ASSOCIATION) 7
2012 decision was made, a decision that Oberti was duly noti-
fied of at the time.30
I find this situation to be analogous to that of an employee
who is unlawfully discharged by an employer for engaging in
union or protected activity, but the employee does not file
charges within the 10(b) period. A couple of years later, the
employee requests reinstatement, which the employer denies.
A Board charge is filed, alleging that the employer has refused
reinstatement for unlawful reasons, that is, the employee’s pro-
tected activity at the time of the discharge. In these circum-
stances the Board and the courts have consistently found that
Sec. 10(b) (and other similar statutes of limitation) bars prose-
cution of the charge. William B. Patton Towing Co., 180
NLRB 64, 67–68 (1969); NLRB v. Auto Warehouses, Inc., 571
F.2d 860, 865 (5th Cir. 1978) (“Independent violations of con-
tinuing obligations do not exist where the illegality of the con-
duct charged cannot be established without assessing events
outside the 10(b) period.”); NLRB v. McCready & Sons, Inc.,
482 F.2d 872, 875 (6th Cir. 1973); See, also, Machinists Local
1424 v. NLRB, 362 U.S. 411, 416 (1960); United Airlines v.
Evans, 431 U.S. 553, 560 (1977) (“A contrary view would
substitute a [renewed] claim... for almost every [past] claim
which is barred by limitations”)
While it is true that in this case it was not Oberti, but rather
PMA, who requested a reconsideration of the 2012 decision by
the Coast Committee, I find this to be a difference without a
distinction for purposes of the applicability of Sec. 10(b). In
that regard I note that PMA did so at the behest of Oberti, pur-
suant to the terms of the settlement agreement it reached with
him. It is notable that during the hearing, as well as in its
posthearing brief, PMA took the position that it did not make
such request because it believed the 2012 decision was wrong
or unlawful, or because new facts had been discovered or the
circumstances had changed, but because it had agreed to do so

30 The General Counsel cites scant authority to support its position
that Sec. 10(b) is inapplicable. For example, it cites dicta from an
administrative law judge’s underlying decision in Stage Employees
IATSE Local 720 (AVW Studio Visual), 332 NLRB 1 (2000), where the
judge addressed certain 10(b) issues. The Board—which reversed the
judge on the merits of the 8(b)(1)(1)(A) and (2) violation he found—
did not address the judge’s findings that Sec. 10(b) was inapplicable
because, apparently, no exceptions were taken to such findings. Thus,
the judge’s findings in that regard have no precedential value. See.
e.g., Operating Engineers Local 39 (Mark Hopkins Intercontinental
Hotel), 357 NLRB 1683, 1683 fn. 1 (2011). Additionally, it should be
noted that while the 9th Circuit disagreed with the Board on the merits
of the substantive allegations in AVW Studio Visual and remanded the
case, see 333 F.3d 927 (9th Cir. 2003), it did not comment on the 10(b)
issue, since the Board had not ruled on such issue. Moreover, the facts
underlying the administrative law judge’s reasoning are different than
in the present case. In that case, the judge opined that a March 1995
letter to the union from the doctor for the charging party, who had been
expulsed from a union hiring hall in May 1994, created the “appearance
of new circumstances” from which the new May 1995 charge (alleging
unlawful hiring hall discrimination), could draw vitality. No such new
“vitality” exists here, as the opinion of Oberti’s doctor was duly con-
sidered by the Coast Committee before it made its final 2012 decision.
In any event, in the Board in AVW Studio rejected the notion that the
doctor’s letter triggered an obligation on the union’s part to look further
into the member’s termination from the hiring hall.
to settle a lawsuit.31 Moreover, contrary to the General Coun-
sel’s argument that the district court’s refusal to grant PMA’s
motion to dismiss Oberti’s lawsuit meant that the Coast Com-
mittee had arguably acted unlawfully in 2012 and that therefore
“new circumstances” existed warranting reconsideration of that
decision, I find that no such inference of unlawfulness can be
inferred from the court’s ruling. In that regard I note that under
Fed. R. Civ. P 56(a), the moving party in a motion to dismiss
must meet a very high burden in showing that there is no genu-
ine dispute as to any material fact and that it is therefore enti-
tled to a judgment as a mater a law. Thus, the court must ex-
amine the evidence in the light most favorable to the nonmov-
ing party and draw all reasonable inferences in that party’s
favor. Revees v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 150–151 (2000). The court noted that PMA had not met
this high burden, since there were issues of fact in dispute
which should ultimately be resolved by a jury (GC Exh. 16).32
Thus, the General Counsel’s insinuation that the court’s ruling
meant that the Coast Committee had somehow acted unlawfully
in 2012 by discriminating against Oberti because of a “medical
condition” alleged to be a “disability,” is both factually and
legally erroneous. No such inference can reasonably be drawn
from the court’s ruling, and therefore no “new circumstances”
can be deemed to have existed in order to breathe “new life”
into a defunct 2012 cause of action. Simply put, as Respondent
correctly argues, PMA was only trying to save money by set-
tling the lawsuit, and Respondent’s refusal to oblige PMA’s
request to reopen a final 2012 decision by the Coast Committee
does not create a new, or refreshed, cause of action for Oberti.
To rule otherwise, as suggested by the Supreme Court in United
Airlines v. Evans, supra, would mean that Respondent (or
PMA) would forever be vulnerable under the proverbial
“Sword of Damocles” for past rulings of the Coast Committee
revived by future requests for reconsideration. Simply put,
Oberti should have filed a charge within 6 months of the Febru-
ary 2012 Coast Committee decision finalizing his termination
from the dispatch hall.
Accordingly, I conclude that Sec. 10(b) bars the allegations
of the complaint, which I dismiss in its entirety on this basis
alone. In order to avoid an unnecessary remand should the
Board disagree with my conclusions with regard to Section
10(b), however, I will proceed to discuss the merit of the sub-
stantive allegations.
B. Does Respondent, in its Role as a Member of the Coast
Committee Panel, Owe a Duty of Fair
Representation Toward Oberti?
This case presents a unique set of facts and circumstances,
and perhaps a novel issue for the Board. First, it needs noting

31 Indeed, PMA admitted no wrongdoing or liability for the 2012
Coast Committee decision, and argued that it settled Oberti’s lawsuit
because it made a business decision to save money on litigation costs
and the possibility of an adverse ruling. PMA further argued that no
new facts or evidence existed in 2015 to warrant reconsideration of the
2012 decision, an argument that dovetails with Respondent’s defense.
32 In so ruling, the court noted that although it had doubts about the
credibility of Oberti’s assertion of facts, it was up to a jury whether to
ultimately decide whether he was credible.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that this case does not involve a typical “hiring hall,” solely and
unilaterally operated and controlled by a local union, which
hires workers on behalf of employers to whom it refers. Ra-
ther, this case involves a dispatch hall that is jointly controlled
and operated by a local affiliate of Respondent (in this case
Local 19) and the employer, PMA, pursuant to the terms of the
Coast Agreement. Second, and more importantly, the charge
and the allegations in this case are not against Local 19, one of
the 2 components operating the dispatch hall, but rather against
ILWU, which is not directly involved in the control or opera-
tion of the dispatch hall. Moreover, the allegations of the com-
plaint pertain to actions by ILWU in its role as part (or half) of
a grievance-arbitration panel established by the Coast Agree-
ment to resolve and rule upon grievances appealed from below
by the parties or individuals. Thus, this case does not involve
allegations of arbitrary or capricious conduct by a union in
failing to properly represent worker for whom it was prosecut-
ing a grievance, which was Local 19 responsibility in this in-
stance; nor does it involve conduct by a union with regard to
the actual operation of the dispatch hall, which again falls under
Local 19’s jurisdiction, in conjunction with PMA. Rather, the
complaint alleges conduct by Respondent ILWU in its role as
part of a grievance-arbitration panel that makes (or can make)
final and binding determinations as to the merit of grievances
appealed to that body. In my view, this raises an issue as to
whether Respondent, in its capacity as part of a grievance-
arbitration panel, owes the same “duty of fair representation”
that a union prosecuting a grievance or operating a hiring hall
owes to individuals in those instances.
I believe this is an issue of the first impression under the Act,
for the parties have not cited, nor have I found, any Board cases
directly on point. There are, however, court cases brought un-
der Section 301 of the Labor Management Relations Act
(LMRA) that provide guidance. In Early v. Eastern Transfer,
699 F.2d 552, 559–560,112 LRRM 3381, 3387 (1st Cir. 1983),
cert. denied 464 U.S. 824 (1983), the First Circuit, citing the
Supreme Court and other circuits, strongly suggests that union-
side members of grievance-arbitration panels that are deemed
under the collective-bargaining agreement to be a substitute and
not a precursor to arbitration, do not owe a duty of fair repre-
sentation, at least not in the traditional sense of such term. The
court thus states:
The Earlys and amicus analogize the union officials on the
committee to union business agents deciding whether to send
a grievance to arbitration. They do not say the union repre-
sentatives must deadlock in every instance, any more than a
business agent must send a meritless case to arbitration. See
Vaca, 386 U.S. at 191. But they seem to argue that the un-
ion’s duty of fair representation requires its representatives on
the joint committee to resolve all doubts in favor of the
grievant and arbitration. But see Teamsters Local Union No.
30 v. Helms Express, Inc., 591 F.2d 211 (3d Cir.) (union
members of joint committee owe grievant no duty of fair rep-
resentation), cert. denied, 444 U.S. 837, 100 S.Ct. 74, 62
L.Ed.2d 48 (1979); Larry v. Penn Truck Aids, Inc., 94 F.R.D.
708 (E.D. Pa. 1982) (same).
Appellants’ approach would alter the character of the joint
committee from that contemplated in the collective bargaining
agreement. The committee would become largely an alterna-
tive mechanism for deciding whether to bring a grievance to
arbitration. Yet under the collective bargaining agreement,
which is the controlling document, a joint committee decision
is to be “final and binding.” Absent a genuine deadlock, we
believe the parties intended the committee to be a substitute
for, and not simply a precursor of, arbitration. The Supreme
Court has consistently treated the decisions of joint commit-
tees and of arbitrators identically. See, e.g., United Parcel
Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67
L.Ed.2d 732 (1981); Barrentine v. Arkansas-Best Freight Sys-
tem, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 918
(1963). Without any indication from either the Supreme
Court or the collective bargaining agreement that a joint
committee is to be perceived differently from an arbitrator, we
cannot impose a duty of partiality on the members of such an
adjudicatory body. Members of a joint committee, like arbi-
trators, must decide each case honestly and conscientiously on
its merits. See Chicago Cartage Co. v. Teamsters, 659 F.2d
825 (7th Cir. 1981). On the record before us, we cannot say
that the union representatives’ vote against the Earlys raises a
triable issue as to some breach of the duty of fair representa-
tion.
The issues and arguments raised by the court in Early are
similar and thus applicable in the present case. The Coast
Committee, in these circumstances, was clearly a substitute for
arbitration, and not a precursor or step along the way. The
provisions of the Coast Agreement make it clear that decisions
of the Coast Committee, absent an even split among the two
sides, are final and conclusive. It thus stands to reason that in
its role as a panelist in the Coast Committee, as the court in
Early indicates, Respondent’s duty toward Oberti was to decide
the matter “honestly and conscientiously on its merits,” as an
arbitrator would, and nothing more. Indeed, as credibly testi-
fied to by Sundet and Marzano (the union-side and employer-
side members of the Coast Committee), their ultimate duty was
toward preserving the sanctity or integrity of the Coast Agree-
ment, rather than partiality toward their own side. If, as sug-
gested by the above-cited cases under the LMRA, such is the
standard by which to measure Respondent’s duty in this case,
did Respondent violate such standard?
I would answer such question in the negative. In the circum-
stances of this case, given the record as it existed at the time the
Coast Committee made its decision in 2012—as well as in
2015, because the record had not changed—I cannot say that
the Coast Committee generally, or Respondent’s panelists in
that committee specifically, acted in a manner that was not
honest or conscientious. They reviewed the record evidence
before them, including the findings of the USHW clinic as well
as the opinion of Oberti’s doctor, and came to a unanimous
conclusion. Moreover, if as suggested by the cases cited above,
the decisions of grievance-arbitration panels should be treated
as those of arbitrators, perhaps an even higher bar needs to be
met in order to find that Respondent violated the Act: whether
its actions or conduct were repugnant to the Act, borrowing
from the arbitration deferral doctrine under Spielberg Manufac-
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION (PACIFIC MARITIME ASSOCIATION) 9
turing Company, 112 NLRB 1080 (1955).33 In any event, it
would appear that in these circumstances, Respondent may not
owe Oberti the traditional “duty of fair representation” that it
would under other circumstances. In view of the lack of direct
Board authority on this issue, however, I defer to the Board on
this matter.
Accordingly, I will proceed to discuss whether Respondent
violated its duty of fair representation toward Oberti, assuming
such duty exists in these circumstances.
C. Did Respondent Violate its Duty of Fair
Representation Toward Oberti?
The complaint alleges that Respondent violated Sec.
8(b)(1)(A) of the Act by declining (without an explanation)
PMA’s October 2015 request to reinstate Oberti to the dispatch
list, and by refusing, from December 8 2015, to May 20, 2016,
to respond to Oberti’s written request to reconsider its denial of
his reinstatement. I will address each of those allegations be-
low.
First, with regard to the allegation that Respondent refused
PMA’s request to reinstate Oberti, it should be noted that the
allegation’s phrasing inaccurately pleads, or overly simplifies,
what truly occurred. What Respondent did, in its role as a
component of the Coast Committee, an arbitration panel, was to
decline a request by PMA to reopen and reverse the panel’s
final 2012 decision terminating Oberti’s dispatch hall privileg-
es. As discussed earlier, PMA did so pursuant to the terms of
the settlement agreement with Oberti, a settlement for an under-
lying lawsuit that Respondent was not part of—and that had
little to do with the merits or the correctness of the Coast
Committee’s 2012 decision. For the reasons explained below,
I conclude that Respondent did not violate its duty of fair repre-
sentation toward Oberti, and thus did not violate the Act.
In its seminal decision in Vaca v. Sipes, 386 U.S. 171 (1967),
the Supreme Court defined the nature of a union’s duty of fair
representation, stating that a union violates such duty when it
acts in a manner that is “arbitrary, discriminatory, or in bad
faith.” Id. at 190. In the ensuing years, the Board and the courts
engaged in much “hairsplitting” in an attempt to define the
precise boundaries of such terms, with the Board and the courts
not always agreeing. In Air Line Pilots v. O’Neill, 499 U.S. 65
(1991), the Supreme Court again stepped in, offering a more
concrete definition and explanation of the nature of a union’s
duty. The Court thus stated that “. . . a union’s actions are arbi-
trary only if, in light of the factual and legal landscape at the
time of the union’s action, the union’s behavior is so far outside
a ‘wide range of reasonableness’ . . . as to be irrational.” Id. at
67 [internal citations omitted].
Accordingly, it is through the prism of the Court’s ruling in
O’Neill that we must ultimately analyze a union’s actions to

33 I note that under the Spielberg doctrine, the Board has declined to
defer to decisions of bipartite grievance-arbitration panels when there
has been evidence of bias, hostility or lack of impartiality by all or
some members of the panel. See, Roadway Express, Inc., 145 NLRB
513, 515 (1963); Mason & Dixon Lines, Inc., 237 NLRB 6 (1978). In
the present case, however, there is no evidence of such, even if there
were some good-faith doubts about the credibility of Oberti, as dis-
cussed below.
determine whether it has violated its duty of fair representation.
This is true whether the union’s actions occurred in the context
of representing an employee in a grievance proceeding, in con-
tract negotiations, or in the operation of a hiring hall. In the
context of the operation of a “hiring hall,” the Board has recent-
ly re-affirmed this principle in IATSE Local 838 (Freeman
Decorating Co.), 364 NLRB No. 81, slip op. at 4 (2016).34 It is
true that in this context, the Board has modified the burdens of
proof, so that a union must overcome certain presumptions if its
refusal to refer an individual from the hiring hall is not due to
certain limited reasons. Thus, the Board has ruled that if the
union’s interference with a referent’s employment status is not
due to the failure to pay dues, initiation fees, or other fees uni-
formly required, a rebuttable presumption arises that such inter-
ference is intended to encourage union membership in violation
of Sec. 8(b)(1)(a) of the Act. Operating Engineers Local 18
(Ohio Contractors Assn.), 204 NLRB 681 (1973), enf. denied
on other grounds 555 F.2d 552 (6th Cir. 1977). This presump-
tion may be rebutted by showing that the union’s actions did
not violate its duty of fair representation—such as by operating
the hall based on purely subjective or discriminatory or arbi-
trary criteria, for example—and that its actions were necessary
for the effective performance of its representational function.
Plumbers Local 342 (Contra Costa Electric), 329 NLRB 688,
691(1999). The reasons proffered by the union in support of
the rebuttal, however, must nonetheless be accepted unless they
are “so far outside ‘the wide range of reasonableness’ as to be
irrational,” as established by O’Neill.
In the present case, it is not disputed that the reason why
Oberti was terminated from the dispatch hall had nothing to do
with his failure to pay dues (pursuant to a valid union security
clause), or initiation fees or other fees uniformly required.
Rather, he was terminated as the result of what transpired dur-
ing his alcohol and drug screening test, as described in the facts
section. I must therefore apply the two-pronged test described
above, as seen through the prism of the O’Neill criteria, to de-
termine if Respondent rebutted the presumption that Oberti’s
termination from the hall violated the Act. I conclude that facts
show that Respondent did not operate the dispatch hall is a
discriminatory or arbitrary fashion, and that its actions were
necessary for the effective performance of its representational
function.
With regard to the requirement that it not operate the hall in
an arbitrary, discriminatory or subjective fashion, there is no
evidence that Respondent did so. Indeed, Respondent does not
“operate” the hall at all, since the hall is jointly run and admin-
istered by Local 19 (a separate legal entity from Respondent)
and PMA, the employer, pursuant to the terms of the Coast

34 The Board had earlier applied the O’Neill analysis with regard to
hiring halls in IATSE Local (AVW Audio Visual), 332 NLRB 1, 2
(2000). Although the 9th Circuit refused to enforce this decision in
Lucas v. NLRB, 333 F.3d 927 (9th Cir. 2003), finding that unions in
hiring hall context owed a “heightened duty” standard, the Board has
not adopted such standard. See, e.g., IBEW Local 48 (Oregon-
Columbia Chapter of NECA), 342 NLRB 101, 101–108 (2004); Team-
sters Local 631 (Vosburg Equipment, Inc.), 340 NLRB 881, 881 fn. 4
(2003). I am bound to follow Board precedent, not that of a circuit
court that disagrees.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Agreement. Nonetheless, even assuming that somehow Re-
spondent bears some direct or even indirect responsibility for
the operation of the hall, there is no evidence of arbitrary or
discriminatory conduct in the operation of the hall. In the pre-
sent case, there is no contention, let alone any evidence, that the
requirement that candidates for promotion to the “B List” take a
drug/alcohol screening test is unreasonable, let alone discrimi-
natory or unlawful.35 Nor is there any evidence that the test
was administered in a disparate manner, since all 45 candidates
had to take the same test under observation, nor evidence that
any other individual who may have failed the test in the same
manner as Oberti was treated differently. There is likewise no
basis to believe that the decision by the USHW clinic to apply
the “shy bladder” protocol to Oberti, agreed upon jointly by the
members of the Port Committee—PMA and Local 19—was
unreasonable, much less arbitrary or discriminatory. Indeed,
the evidence suggests, as Oberti admitted, that the clinic went
above and beyond the requirements of the shy bladder protocol,
and gave him additional time to complete the test. Finally,
there is simply no evidence of discriminatory intent by the
members of the Coast Committee, including Respondent, in its
decision to accept the clinical judgment of the USHW, as the
administrator of the screening test, that Oberti had failed to
comply with the test, pursuant to the protocols established by
the Port Committee. In short, the record is devoid of any per-
suasive evidence that the dispatch hall rules were applied in an
arbitrary or discriminatory fashion toward Oberti, or that Re-
spondent acted in any such manner toward Oberti in its deci-
sion to sustain his termination—both in 2012 and in 2015—
based on the record before the Coast Committee. This conclu-
sion is particularly true when analyzed through the criteria as
set forth by O’Neill.36
The same is true with regard to the second prong established
by the Board in the context of hiring hall cases—that Respond-
ent’s actions were necessary for the effective performance of its
representational function. As the Board clearly sets forth in
IATSE Local 838, supra, slip op. at 3, unions must be accorded
deference when determining what conduct is reasonable to
ensure the effective performance of its representative function.
As the Board stated, “Once a valid objective is shown, the
Board will not substitute its judgment for the union’s in deter-
mining what response is reasonable.” Id. There can be no
doubt that the parties to the Coast Agreement, PMA, Respond-
ent, and its affiliated local unions (including Local 19), had a
perfectly valid and lawful objective to maintain a strict alcohol
and drug free work environment, an environment that admitted-

35 Indeed, the Board long-ago approved requirements jointly agreed
upon by the parties in this industry for the qualification and selection of
individuals to be referred out of the dispatch halls. See Pacific Mari-
time Association (Johnson Lee), 155 NLRB 1231 (1965).
36 It is true, as admitted by Coast Committee panelist Sundet, that
the members of the Committee viewed Oberti’s conduct with some
degree of suspicion, and believed that Oberti may have been trying to
cheat on the test. Such suspicion, however, was not unreasonable, let
alone “irrational,” in light of Oberti’s history of failing a previous test,
as well as the information (received by the Port Committee, which
opted for the strict testing protocols) that some individuals were plan-
ning—even placing bets—on cheating on the test.
ly was a potentially dangerous one. There can also be little
doubt that the means chosen by the parties to reach this valid
objective, a strict alcohol and drug screening test, was a reason-
able vehicle to achieve this goal. Finally, I conclude that there
can again be little doubt that the parties’ approach to adminis-
tering this test, as applied to Oberti, was a reasonable means of
ensuring the integrity of the contractual referral system. Like-
wise, I conclude that Respondent’s members of the Coast
Committee, in the case of Oberti, reasonably made an objective
and evidence-based decision to sustain Oberti’s termination
from the dispatch hall, and that such result was reasonably nec-
essary for the preservation of the integrity of the contractual
referral system In that regard, it is reasonable to envision a
scenario where, if the parties started making exceptions or cre-
ating special procedures for individuals like Oberti, the whole
system might start unraveling, as more and more individuals
started demanding similar accommodations. Once again, I find
that these conclusions are inevitable when seen through the
prism of the criteria established by the Court in O’Neill. None
of the actions taken by Respondent, in its role as a member of
the Coast Committee panel in 2012 and again in 2015, can be
deemed to have been “irrational” by any stretch of the imagina-
tion, given the evidentiary record before such panel(s).
In so concluding, I specifically reject CGC’s arguments sug-
gesting, for example, that Respondent’s actions were unlawful
because it had “no particular reason” to deny the 2015 request
to reconsider the Coast Committee’s 2012 decision. In so argu-
ing, the General Counsel apparently misstates—and reverses—
the burden of proof required in these cases. It is not sufficient
to show that Respondent had “no particular reason” to act the
way it did. Rather, it is the General Counsel’s burden to show
that Respondent acted for unlawful, arbitrary reasons. Moreo-
ver, as discussed above, Respondent has showed that it had
valid reasons for its actions. Likewise, the General Counsel
argues without merit that it was “unlawful” for the Coast
Committee in 2012 to reject—or give little weight to—the
opinion of Oberti’s physician that Oberti had a “medical condi-
tion” (or as the General Counsel suggests, a “disability” under
the Americans with Disabilities Act) that justified new test-
ing;37 or that the Port Committee was not obligated to adopt the
“shy bladder” protocol, or that the testing clinic misinterpreted
its application; or that the federal district court’s declining to
grant PMA’s motion to dismiss Oberti’s lawsuit meant that the
Coast Committee’s 2012 was likely unlawful, as was Respond-
ent’s panelists’ decision not to re-open such decision in 2015.
The General Counsel flails at the wind, attempting to substitute
its judgment for that of Respondent in this matter, something
the Board has specifically ruled it cannot do. Reasonable per-
sons may differ on what the best course of action may have
been in these circumstances, but such is not the test to deter-
mine if Respondent violated the Act in this instance. The test is
as described in O’Neill, and the high bar set in that test has not
come close to being reached. Boiling down General Counsel’s

37 As stated by the Board in PCC Structural, Inc., 330 NLRB 868,
868 fn. 4 (2000), it is not its function to determine if an arguably disa-
bled person had a viable claim under the ADA—or for that matter, I
would add, under any other statute.
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION (PACIFIC MARITIME ASSOCIATION) 11
arguments to their essence, the General Counsel appears of-
fended by the harshness or arguable unfairness of Oberti’s fate.
Even assuming that the result was unfair, however, it is well
established that an unfair result does not necessarily result in an
unfair labor practice.38
In light of the above, I conclude that Respondent met its bur-
den in rebutting the presumption that its interference with Ober-
ti’s dispatch hall privileges was intended to encourage union
membership in violation of Sec. 8(b)(1)(a) of the Act. I accord-
ingly conclude that Respondent, by its actions in 2012 and in
2015 did not violate its duty of fair representation toward Ober-
ti, and did not violate Sec. 8(b)(1)(A) of the Act.
Finally, as described above, the complaint also alleges that
Respondent violated Section 8(b)(1)(A) by failing to respond,
until May 20, 2016, to a written request sent by Oberti’s attor-
ney on December 8, 2015, requesting that Respondent re-
consider its position to reinstate Oberti.
I note that the General Counsel proffered no arguments or
any authority in its brief supporting this allegation. At the time
of Oberti’s letter in December 2015, there were still ongoing
talks between PMA and Oberti about finalizing their settlement,
and indeed PMA later saw a need to file a motion with the court
seeking a ruling that the settlement was a fait accompli. In

38 I am not without empathy for Mr. Oberti, in light of the events
described above. Without a doubt, he lost much, since longshoremen
jobs are highly coveted because of their good pay and benefits. It is not
my role in this case, however, to determine whether he was credible in
his claims, or whether he was trying to cheat on the drug screening test
(as PMA and Respondent suggest), or whether he truly had a medical
condition which prevented him from completing a screening test that he
would have otherwise passed. Nor is it my role to determine if what
occurred to him was unfair, nor whether he should have been allowed
another opportunity using another method of testing. My role is simply
to determine whether Respondent in this instance violated its duty of
fair representation, and to that end I must apply the law as the Board
and the Supreme Court have established.
February, Oberti filed the unfair labor practice charge with the
Board in this case, and in response to these events, Respondent
finally sent a letter to Oberti in May 2016, explaining in detail
its position in this matter. While Respondent’s letter was argu-
ably slow in coming, I see nothing intrinsically unlawful about
such late response, and can find no support for the proposition
that such conduct, in these circumstances, was unlawful. Ac-
cordingly, I conclude that this allegation has no merit.
In view of the above, I conclude that Respondent has not
violated the Act as alleged and that the compliant should be
dismissed in its entirety.
V. CONCLUSIONS OF LAW
1. PMA and its constituent members are employers engaged
in commerce within the meaning of Section 2(2), (6), and 7 of
the Act.
2. Respondent International Longshore and Warehouse Un-
ion is a labor organization within the meaning of Section 2(5)
of the Act.
3. Section 10(b) of the Act precludes the issuance of a com-
plaint in this matter.
4. In the alternative, the Respondent did not violate the Act
in any manner alleged in the compliant.
On these findings of fact and conclusions of law and based
on the entire record in this case, I issue the following recom-
mended39
ORDER
The complaint is dismissed in its entirety.
Dated, Washington, D.C. May 25, 2017

39 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and rec-
ommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed
waived for all purposes.