International Longshoreman'S Association, Local 1426 (Waterfront Services, Inc.)

National Labor Relations Board - Board Decisions

May 19, 1987

283 N.L.R.B. 1042 (N.L.R.B. 1987)

1042 DECISIONS OF THE NATIONAL LABOR` RELATIONS BOARD
International Longshoremen's Association, Local
1426 (Waterfront Services, Inc.) and James
Luther Johnson Jr. Case 11-CB-1407
19 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 10 June 1986 Adminstrative Law Judge Wil-
liam N. Cates issued the attached decision. The
General Counsel 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, fmdings,1 and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. 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 re-
versing the findings.
Janet Holland Branch, Esq., for the General Counsel.
Andrew A. Canoutas, Esq., of Wilmington, North Caroli-
na, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. The
hearing in this case held on 24 March 1986 is based on a
charge filed by James Luther Johnson Jr., an individual
(Johnson), on 31 December 1985,1 and amended on 18
February 1986, and an amended complaint and notice of
hearing (complaint) issued on 24 February 1986 on
behalf of the General Counsel of the National Labor Re-
lations Board (Board) by the Regional Director for
Region 11 alleging that International Longshoremen's
Association, Local 1426 (the Union) has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the National Labor Relations Act
(the Act). The Union in its answer to the complaint ad-
mitted various allegations of the complaint, but denied
the commission of any of the alleged unfair labor prac-
tices.
i All dates are 1985 unless otherwise indicated.
All parties were given full opportunity to participate
and introduce relevant evidence, to examine: and cross-
examine witnesses, to argue orally, and to file briefs.
Briefs, which have been carefully considered, were filed
on behalf of the General Counsel and the Union.
On the entire record-of the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Waterfront Services, Incorporated (Waterfront) is a
North Carolina corporation with a facility located at
Wilmington, North Carolina, where it is engaged in the
docking and undocking of ships at the port of Wilming-
ton, North Carolina. During the 12 months preceding is-
suance of the complaint, a representative period, Water-
front, in the course and conduct of its business oper-
ations, received at its Wilmington, North Carolina facili-
ty goods and materials valued in excess of $50,000 direct-
ly from points outside the State of North Carolina.
During the same period, Waterfront provided to custom-
ers outside the State of North Carolina services valued in
excess of $50,000. The complaint alleges, the Union
admits, and I fmd, that Waterfront is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Wilmington Shipping Company (WSC) is a North
Carolina corporation with a facility located at Wilming-
ton, North Carolina, where it also is engaged in the
docking and undocking of ships at the Port of Wilming-
ton, North Carolina. During the 12 months preceding the
issuance of the complaint, WSC received at its Wilming-
ton, North Carolina facility goods and materials valued
in excess of $50,000 directly from points outside the
State of North Carolina. During the same period, WSC
provided to customers outside the State of North Caroli-
na services valued in excess of $50,000. The complaint
alleges, the Union admits, and I find that WSC is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The parties admit , and I find, that the Union is, and at
all times material has been , a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Central Issue
The central issue presented in this case is whether the
Union failed and refused for unfair, arbitrary, and invidi-
ous reasons, and in contravention of its exclusive hiring
hall arrangement with the North Carolina Shipping As-
sociation (Association), to refer Johnson to employment
with Association member Waterfront at the port of Wil-
mington on 22 August and to employment with Associa-
tion member WSC at the port of Wilmington on 30 De-
283 NLRB No. 153
LONGSHOREMEN ILA LOCAL 1426 (WATERFRONT SERVICES)
cember, 2 For the reasons hereinafter discussed, I find for
the Union.
B. Background
The Association is an organization composed of ap-
proximately 14 employers and exists at least in part for
the purpose of representing its employer members in ne-
gotiating and administering collective-bargaining agree-
ments with various labor organizations including the
Union herein. At all material times, Waterfront and WSC
have been employer members of and have authorized the
Association to bargain collectively' with the Union cov-
ering wages, hours, and other terms and conditions of
employment of their respective employees in admittedly
appropriate bargaining units. a At all material times, the
Association and Union have maintained a practice4 per-
mitting the Union to be the sole and exclusive source of
referrals to employment with members of the Associa-
tion including Waterfront and WSC for the units just de-
scribed above.
In operating the hiring hall, the Union conducts what'
is referred to as "shape-up" on a daily basis. A number
of things occur during shape-up, some of which will be,
referred to only in general terms while others will be dis-
cussed in greater detail. The Union's business agent or,
his designated assistant is present in the hiring hall for
shape-up.5 Two Guaranteed Annual Income (GAI) dis-
patchers6 are, also present in the hiring hall during and
after each days' shape-up. Certain longshoremen are
guaranteed an annual income and if they are not referred
for work the required number of hours to meet their
guaranteed income, they are paid the amount they are
annually guaranteed from a special fund established for
that purpose.
The GAI dispatchers who work 5 days per week from
6 a,m. until 1 p.m.7 generally commence daily at ap-
2 Johnson contends he lost a half day's work on 22 August and a full
day's work on 30 December. The General Counsel acknowledges John-
son was properly referred to employment by the Union prior to 22
August and after 22 August until 30 December She also acknowledges
he has been properly referred to employment at all times since 30 De-
cember
2 The admittedly appropriate unit at Waterfront is as follows
All employees engaged in the loading or discharging of ships at
the Employer's location at the Port of Wilmington, North Carolina,
excluding all other employees, guards, and supervisors as defined in
the Act
The admittedly appropriate unit at WSC is as follows.
All employees engaged in the loading or unloading of ships at the
Employer's location at the Port of Wilmington, North Carolina; ex-
cluding all other employees, guards, and supervisors as defined in the
Act.
4 A copy of the hiring hall procedures, which it appears was posted at
the hiring hall in 1976, was received in evidence as Jt. Exh. 3(b)
s Sammy 'Hicks (Hicks) is the Union's business agent and when he is
not present his assistant, Clayton Alfred Vaught (Vaught), fills in for
him.
s The two dispatchers are Chester Wiggins (Wiggins) and Johnny
McCoy (McCoy)
' I find the evidence is persuasive that the GAI dispatchers' tours of
duty at the hiring hall are from 6 a in until 1 p in notwithstanding the
General Counsel's contention to the contrary. The General Counsel was
never able by any reliable evidence to demonstrate the GAI dispatcher's
hours were otherwise
1043
proximately 6:15 a.m. to give each GAI[ longshoreman,
who is present in the hiring hall and desiring to work
that day, a badge.8 The GAI longshoremen are also
given slips that are filled out and at approximately 6:30
or 7 a.m. the business agent (or assistant business agent)
announces that it is shape-up time. Headers (or foremen)
obtain certain paperwork from the Union and then pro-
ceed to hire their work gangs for-that day. The hiring of
work gangs is done inside the hiring hall. The headers
first hire those who are , regularly assigned to their
gangs.9 The work gangs are hired based on the workers'
GAI status and by seniority classification. After a header
has hired all longshoremen regularly assigned to his
work gang and finds he still needs workers, he hires the
additional workers by seniority classification from those
present in the hiring hall.1 ° If all of the seniority classifi-
cations are exhausted, the header may then hire casuals.
Whenever a header has completed assembling his work
gang for any particular workday, he takes the necessary
paperwork to the employer at the docks and the long-
shoremen then go to work. The two GAI dispatchers
remain behind at the hiring hall to process the paper-
work necessary to administer the GAI program. t l Inas-
much as the GAI dispatchers are on the payroll of the
GAI fund from 6 a.m. until 1 p.m., they are precluded
from going to work at any other job during that time.12
If after all headers have hired all the longshoremen
they need for their gangs for any particular day and
there still are those seeking to be employed on that day,
those unemployed longshoremen and casuals generally
remain in the hiring hall for a portion of the workday to
see if any header will, for any reason, need any addition-
al workers. If additional workers are needed, the header
comes to or calls the hiring hall. The business agent (or
assistant business agent) will announce the need for addi-
tional longshoremen over a public address system' a and
those longshoremen or casuals waiting in the hall will
present themselves by seniority to the business agent (or
assistant business agent) for employment.
8 The badges are simply plastic cards with the longshoreman's name
and classification thereon
9 Longshoremen must stand in front of the headers in the hiring hall to
present themselves for employment
10 GAI longshoremen are given first priority by seniority for employ-
ment Thereafter there are six seniority classifications utilized, namely,
(A) through (F) inclusive, with (A) being the most senior. Others who
may be present in the hiring hall who have no classification are referred
to as casuals (Wilmington, North Carolina Longshore Seniority Plan Jt
Exh 2)
11 The GAI dispatchers do not work for, nor are they paid by, the
Union; rather, they work for the GAI fund which is administered from
Jacksonville, Florida
12 1 credit Local Union President Willie Sloan's (Sloan) testimony that
he established the above-stated rule to preclude the GAI dispatchers
from being on two payrolls at the same time and to prevent them from
being in competition with other longshoremen who might be present at
the hiring hall wanting to go to work. After 1 p.m, the GAI dispatchers
revert to the status of GAI longshoremen with a seniority classification.
President Sloan credibly testified he did not want a GAI dispatcher to
take a job before 1 p in if there were any longshoremen waiting in the
union hall for a job 1
is The public address system can be heard in the hiring, dining, and
restroom areas There' is an outside speaker, but it is usually not utilized
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
If a header returns to the hiring hall and the business
agent or his assistant' is not present, the header may hire
by seniority classification anyone in the hiring hall area.
C. Applicable Hiring Hall Principles
It is appropriate at this point to very briefly highlight
some applicable principles governing hiring hall prac-
tices. Applicable law clearly establishes that unions oper-
ating exclusive hiring halls must do so in a manner that is
free from arbitrary or invidious treatment of those utiliz-
ing-the hiring hall services. A union's power in operating
an exclusive hiring hall is so great that any action by it
that prevents an employer from 'hiring.a user of its hiring
hall services will be presumed to encourage union mem-
bership among those who perceive the union's actions
and hence will be found to-violate Section 8(b)(1)(A) and
(2) of the Act. Teamsters Local 5 (Hebert & Co.), 272
NLRB 1375, 1378-1379 (1984). Carpenters Local, 720
(Stone & Webster), 274 NLRB 1506 (1985). Applicable
law as reflected in -Carpenters Local 25 (Mocon Corp.),
270 NLRB 623, 630 (1984), enfd. 769 F.2d 574 (9th Cir.
1985), also establishes:
A union which demonstrates `the fair and regular
utilization of facially valid hiring hall regulations' in
determining the order of dispatch among registrants
clearly establishes a sufficient defense to allegations
of impropriety in the selection or rejection of appli-
cants for employment referral, If, however, follow-
ing proper rules is a defense to a hiring hall allega-
tion, ignoring or' violating such rules is not. The
Board' holds that where clear and unambiguous
hiring hall regulations are ignored or violated so as
to prevent an otherwise entitled individual from
being dispatched to employment, without more, a
prima facie violation of Section 8(b)(1)(A) and (2)
of the Act has been' established.
It is not unlawful for a union to enforce a valid exclusive
hiring hall arrangement by requesting that an employer
discharge an employee from a job that the employee se-
cured outside the valid exclusive hiring hall procedure.
See `Laborers Local 596 (Hood Contractors), 216 NLRB
778 (1975).
D. The 22 August Referrals
1. Facts
On 22 August, Johnson went to the hiring hall at ap-
proximately 9 a.m.14 Johnson testified he ate breakfast
with Local Union President Sloan and after doing so
went to the hiring area at the union hall to wait for any
job that might-become available that day.' 5 Johnson tes-
tified he did not leave the hiring area at the union hall
until 1:30 p.m.
Leo Wilson (Wilson) testified he rotated working as a
header with Joseph M. Pridgen (Pridgen) on a particular
14 Johnson had worked that morning from approximately 5 to 8 am
at a port location in Wilmington , North Carolina.
15 Johnson holds a "F" seniority classification , is not a regular gang
member, and is not a GAI longshoreman
work gang at Waterfront. On - 22 August, Pridgen
worked as the header. Pridgen's work gang tied up a
vessel at the port that morning and Waterfront's manage-
ment then told him his work gang would be tying up a
larger vessel that afternoon and he would need, two long-
shoremen in addition to his regular gang in order to be
able to tie up the .larger vessel.' 6 Pridgen told Wilson to
go to the hiring hall - and get two additional longshore-
men to assist his work gang that afternoon in tying up
the larger vessel. Wilson credibly testified he went to the
union hall between 11 and 11:30 a.m.'T Wilson stated he
entered the hiring hall, but saw no one in the hall.18
After looking around the hall he happened to see Wig-
gins . Wilson told Wiggins he was, going to need two ad-
ditional longshoremen that afternoon. Wiggins wanted to
know what time that afternoon and Wilson told him 2:30
p.m. Wiggins told. Wilson he would not take the job
unless it was after 2 p.m.19 Wilson told Wiggins not to
mess him up and to be at the dock at 2:30 p.m.20 Not
finding anyone else, Wilson returned to the docks and
finished tying up the vessel that was already in port.
After tying up the vessel already in port, Wilson re-
turned to the hiring,hall at about noon.21 When Wilson
arrived at the hiring hall, he saw Johnson sitting on the
stage in the hiring area and told him:
We're going to need a man to tie up . . . . We got
a ship coming in and we 're going to need a line
handler . . . . Go to the office and let Vaught
xs Actually a third additional longshoreman was needed that afternoon
because longshoreman William Canaday (Canaday), who normally
worked in Pridgen't gang and in fact worked during the morning hours
of 22 August, did not work that afternoon Pridgen allowed J C. Cor-
bette (Corbette) to work over from a previous shift to, replace Canaday
that afternoon.'No,contention was made that it was improper for Pridgen
to allow Corbette to work over.
17 Wilson stated it Was normal procedure to go to the-hiring hall be-
cause all hiring took place there
18 Contrary to Wilson's testimony, Johnson stated he was in the hiring
area of the union hall when Wilson came into the hall at approximately
11:30 a . m. Wilson impressed me as attempting to testify truthfully and
with good recollection. He appeared very conscientious and was a forth-
right witness with a sincere and believable expression. Accordingly, I
credit his testimony that no one was in the hiring hall when he entered
the hall at 11:30 am. It would be mere speculation on my part to com-
ment on where Johnson may have been at the time Wilson was in the
hall on his first visit to the union hall on 22 August. The thing I am per-
suaded of is that Wilson did not see Johnson in the hiring area at the
union hall during his 11 :30 a.m . visit. I am convinced that if Johnson had
been in the hall, Wilson would have seen him because he was anxiously
seeking to find two additional workers so he could go to lunch and then
report back to the port The fact that Wilson had nothing against John-
son nor any reason not to want to hire him is borne out by the fact that
Wilson specifically told Johnson about the remaining job during his
second visit to the hiring, hall on 22 August.
19 Wiggins, although placing the time of the meeting somewhat differ-
ently than Wilson, -corroborated ' in essential parts Wilson's testimony
Wiggins stated he could not work that day before 2 p.m. because he had
to go to the post office and run an errand for his wife. Wilson stated he is
a GAI longshoreman with an "A" classification after 1 p.m. daily.
20 Wilson stated that when no one was in the hiring hall it was proper
for him to hire in the manner he did-Johnson acknowledged that Wilson
had the authority to hire necessary workers when the business agent or
his assistant were not present in the hiring hall.
21 Johnson places the time at 12 15 p.m
LONGSHOREMEN ILA LOCAL 1426 (WATERFRONT SERVICES)
know, you know, and, you can probably get the
job.22
Wilson then spoke with Vaught who was acting on
behalf of business agent Hicks and told him he needed
one additional longshoreman.23
Union President Sloan testified he spoke with Wilson
at the hiring hall and that Wilson told him he needed a
line handler for that afternoon and that Johnson was the
only one in the hall so he guessed Johnson would prob-
ably be the one coming down to the docks.24 Sloan testi-
fied he then walked over to the stage where Johnson
was and told him:
Buddy [Johnson], Leo [Wilson] said he, had a line
handling job down there, so you better go in and
asked Vaught about that job ... before somebody
comes in here with a higher classification than you
have.
President Sloan stated he asked Johnson if he was going
to get the job and Johnson told him he did not know,
that he was waiting on the announcement for the, job.
Sloan again told Johnson to go and ask Vaught for the
job before someone came in with a higher seniority clas-
sification.25 Sloan left the area while Johnson was still
sitting on the stage in the hiring hall area.
Johnson testified he passed in front of Vaught's office
two or three times to ask him about the job but each
time he did so Vaught was on the telephone. Johnson
testified he went to the door, at the back of the hiring
hall to see if there was any other longshoreman out there
possibly with a higher classification than he had. Johnson
stated he noticed Lee Clark (Clark) coming down the
hill toward the hiring hall. Johnson testified he Went
back past Vaught's office door and Clark headed toward
the dining area in the building. Vaught came out of his
office and announced he needed a line handler.26 Clark
stated, "Well, I guess that's me." Vaught replied he
guessed so since Clark was the senior man.27 Clark got
the job. Johnson told Vaught that both Wilson and Presi-
dent Sloan had mentioned the job to him.28
22 I credit Wilson's testimony that he did not tell Johnson he had the
,lob., Wilson's explanation that he did not tell Johnson he had the job is
very plausible. Wilson stated if he had told Johnson he had the job he
would not have needed to inform Vaught of the position or have had
Vaught make an announcement about the position.
28 Vaught corroborated Wilson's testimony regarding his second visit
to the hiring hall. -
24 After Wilson spoke with Sloan, he went home to eat lunch and then
went directly to the docks.
25 Johnson acknowledged that about 15 minutes after Wilson talked to
him, President Sloan approached and told him an extra line handler was
needed and said he should speak to Vaught about it immediately and blot
give Vaught time to call anyone else on the telephone I specifically do
not credit Johnson's denial that President Sloan mentioned anything
about the possibility of someone coming in with a higher classification.
26 Vaught made the announcement without using the public address
system; however, there is no evidence that anyone else was in the hail
other than Clark and Johnson and both of them heard the announcement.
21 It is undisputed that Clark had a "C" classification whereas Johnson'
had a "F"' classification.
28 It is undisputed that, about noon, header Walter Nelson came to the
hiring hall and told Vaught he needed an additional longshoreman John-
son heard Nelson ask for the additional help and he heard Vaught an-
nounce the job. Johnson presented himself for that job; however, there
1045
After Clark got the job, Johnson went upstairs to look
for President Sloan to let him know what had happened
and,to tell him how Vaught had sat on the job and that
he had not been given the job. When Johnson went up-
stairs, which was about 1:15 p.m., he saw Canaday, a
regular work gang member. Johnson testified Canaday
told him that header Pridgen needed three line handlers
for that afternoon. Johnson stated he asked who had
been selected and Canaday told him Wiggins and Cor-
bette, and he did not know who Vaught had been able to
get as the third longshoreman . Johnson asked Canaday
about the circumstances of Wiggins being hired. Cana-
day told him he did not know. Johnson then Went back
downstairs and asked Vaught about Wiggins having been
hired and told Vaught what Canaday had said. Vaught
told Johnson he did - not know what the situation was
with Wiggins, but he was on his way to the docks and
he would check it out. Thereafter, Vaught returned to
the hiring hall and told Johnson Wiggins had been hired
at the union hall.29
Johnson testified he then left the union hall and went
to the docks to find Pridgen to see if Pridgen was aware
of the procedure by which Wiggins had been hired for
that day.30 Johnson testified that after he arrived at the
docks, he encountered Wiggins before he found Pridgen.
Wiggins credibly testified Johnson approached him and
asked him who had given him his job. Wiggins told
Johnson Wilson had given him the job.31 Johnson told
Wiggins he was going to have that job, that Wiggins did
not have any business at the docks, and asked where
Wilson was. Wiggins told Johnson he did not know
where Wilson was and added:
Well, I didn't come down here for no hassle from
you or anybody else .... If the job means that
much to you, we don't have to argue-about it. You
can have it.32
Wiggins immediately went to where Pridgen was. Wig-
gins told Pridgen and Wilson he did not want to cause
any problems and he was going home. Thereafter, John-
son came to where they were.33 Wilson testified he told
was another longshoreman present with identical classification and the
header chose the other longshoreman. `There is no contention of any
wrongdoing on the part of the Union or the header in selecting the other
longshoreman.
29 Johnson testified Vaught told him Wiggins said he had been hired
by Wilson. I do not view this statement of Johnson to be inconsistent
with Vaught's credited testimony.
30 Wilson testified he let, Pridgen know the gang, had been filled and
told him about Wiggins
31 Wilson testified he saw Pridgen, Clark, Wiggins, and Johnson at the
docks and figured Johnson had been given a job at the hiring hall.
3,2 Johnson contends he asked Wiggins if he knew about President
Sloan's not allowing GAI dispatchers to ;accept employment before 2
p.m. when longshoremen were available and that GrAI dispatchers were
not to accept work outside their original work gangs Although I have
not credited Johnson's testimony when it was contradicted , by others, I
do not view this contention of Johnson to be in contradiction of any of
Wiggins' testimony Johnson acknowledged Wiggins told him he could
have the job he (Wiggins) had been given.
33 Johnson testified that after he approached the others, the only thing
he beard Wiggins say to Pridgen was that he would catch hint next time.
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wiggins he was the one that had hired him (Wiggins)
and to make it right he (Wilson) would leave. Wiggins
made no response to Wilson's comments and left. Wilson
told Pridgen that he (Wilson) was responsible for hiring
Wiggins and for getting the gang shaped up for that day
and because of that he would leave and give his job to
Johnson. Wilson then told Johnson he could have his
job. Johnson told Wilson he could handle it.
Pridgen told Johnson he could have the job Wiggins
had been given.
At approximately 3:30 p.m. when the larger vessel ar-
rived at the dock and as Johnson was reaching for the
ropes that the vessel crew threw over for the longshore-
men to tie the vessel up with, Vaught approached and
told Johnson he did not have a job because he had not
gotten his job through the hiring hall. Vaught told John-
son he was trespassing and replaced him with Vince
Spencer , a more senior longshoreman. 34
2. Analysis-and conclusion
The General Counsel has not established that the
Union violated the Act in any manner with respect to its
actions related to Johnson on 22 August . Wilson 's hiring
of Wiggins to work on the afternoon of 22 August was
in keeping with established procedures at the hiring hall.
Neither the business agent nor his assistant was present
in the hall when Wilson hired Wiggins. No longshore-
men were present in the hiring - hall seeking employment
when Wilson hired Wiggins. Wilson, Vaught, and John-
son all stated that when the business agent or his assist=
ant was not in the hiring hall , a header (such as Wilson)
could hire anyone he located in the hiring hall so long as
he observed seniority classifications . Wilson needed addi-
tional longshoremen as soon as he could get them, and
he employed the only person he could find at the hiring
hall at that time , namely, Wiggins. Inasmuch as there
were no business agents in the hiring hall and no one
seeking employment, there was no requirement for, nor
is there any evidence to suggest that it had ever been the
practice for, a header or his designee to make an an-
nouncement about a job vacancy when no one was
present . It appears such an act in futility had never been
required. The actions related to Wiggins did not violate
President Sloan's rule regarding GAI dispatchers accept-
ing employment . President Sloan's rule regarding GAI
dispatchers was simply that they could not go to work
between 6 a.m. and 1 p.m., not that they could not accept
work during that period if the work was to commence
after 1 p.m. and if there were no longshoremen in the
hall waiting for a job.
I note there is nothing to suggest that the referral of
Clark to one of the jobs on 22 August was other than in
accordance with the rules of the hiring hall. Vaught an-
nounced the job, albeit' verbally instead of over the
public address system, to the only two longshoremen in
the hall. Clark had more seniority than Johnson and was
34 Johnson left the dock area and went to the union hall where he con-
tacted Local Union President Sloan President Sloan, Vaught , and John-
son met briefly that evening , however, I find it unnecessary in deciding
the issues herein to consider what took place at the meeting between
those three that evening
properly given the job. Johnson did not make his avail-
ability for the job known to Vaught before Clark arrived
at the hiring hall. 3 s
Finally, it was within the hiring hall rules for Vaught
to remove Johnson from the job at Waterfront on 22
August because he had not obtained his position through
the hiring hall. Johnson knew he could not obtain em-
ployment by having a longshoreman walk off the job
and he then be given that job without going through the
hiring hall. Johnson clearly did not go through the hiring
hall when he took the job Wiggins had been properly
given earlier.
In summation , I am persuaded the record evidence
demonstrates the Union followed its hiring hall rules in
making referrals on 22 August. There is no contention
the Union's rules were invalid in any manner. In accord-
ance with applicable law, utilization, as was the case
herein, in a fair and regular manner of facially valid
hiring hall regulations establishes a sufficient defense to
allegations of impropriety in the referral of applicants for
employment. Accordingly, I shall recommend that the
complaint allegations that the Union unlawfully refused
to refer Johnson for employment with Waterfront on 22
August be dismissed.
E. The 30 December Referrals
1. Facts
Johnson reported to the hiring hall on 30 December at
approximately 6:25 a.m. Johnson wrote out, a "gang
card" for header Soloman McKant because the long-
shoreman who writes out the gang card for a header is
"usually" selected by that header to work on his work
gang. Johnson was unable to work on McKant's gang
because all the longshoremen McKant hired were senior
to Johnson. Johnson asserts he tried to get on header
Philip McCoy's gang but stated by the time he presented
himself to McCoy, there was only one slot - left on
McCoy's gang and McCoy selected someone else for
that remaining slot. According to Johnson, McCoy's
gang was going to work on a tobacco laden boat that
day.36
Johnson then left the hiring hall area and went upstairs
to the office area around 8 a.m. where he met President
Sloan at the water fountain. President Sloan testified he
knew that all longshoremen that wanted to work that
day would already be gone from the hiring hall by that
time because jobs were plentiful, in fact so plentiful that
12 or 13 casuals had been referred for employment on
35 There is no evidence to establish that Clark was called to the hiring
hall for the specific purpose of giving him the job in question in order to
preclude Johnson from getting it
36 I do not credit Johnson's testimony that he sought employment with
McCoy's gang that morning McCoy's gang was, as just indicated, going
to work on a tobacco laden vessel Johnson admitted that when President
Sloan asked him that morning if he was going to work that day, he told
him "[N]o, I didn't think I wanted to bother with tobacco I'd been han-
dling it for the last five days and I was having trouble with my back "
Additionally, the uncontradicted testimony of President 'Sloan reflects
that 12 or 13 casuals were hired to work on tobacco laden vessels that
day and Johnson with a "F" classification could have been referred for
employment ahead of any'casual if he had wanted to work handling to-
bacco that day
LONGSHOREMEN ILA LOCAL 1426 (WATERFRONT SERVICES) 1047
that day. Sloan stated he observed that Johnson and one
other longshoreman Charles Knox (Knox), were still in
the hiring hall. Sloan questioned Johnson about' his still
being at the hiring hall, and asked, "Buddy [Johnson]
you're not going to work?" Johnson responded, "No,
Pres. I've been handling that tobacco for five days.and
I'm not going to today." -Sloan told Johnson, "Okay,
well, you know why I asked you this question don't
you?" Johnson asked, "Why?" and Sloan told him,
"Well, I'm asking you this question so if you come up
short of hours at the end, of the year, you'll know
why."37 President Sloan then questioned Knox in the
same manner that he had questioned Johnson.38
At approximately 8:30 or 9 a.m., Vaught was notified
that an 'extra winchman was needed at once on one of
the work gangs. Vaught made an announcement for the
position but there were no winch operators, in the hiring
hall.39 Vaught testified winch operators were in short
supply, and as a result, they did not have one on each
work gang each day.40' Vaught stated he had to leave
the union hall and go to the docks to try and find- a
winch operator. Vaught testified he asked Lanier Sloan,
a casual, if he would like to take a chance on making a
switch that he had to go to the docks to try to locate a
winch operator. Vaught stated he took Lanier Sloan
with him to the docks so'that-he would have someone to
swap out with the header of whatever crew he was able
to secure a winch operator' from. Vaught testified, he did
not observe Johnson in the hiring hall when he left;
however, he stated he was not particularly looking for
anyone because there were plenty - of jobs that morning.
Johnson made no mention to Vaught about wanting to
go to work on 22 August. According to Vaught, any
longshoremen who wanted employment could have had
a job on that day. Vaught stated he assumed that anyone
who was still in the hall at the time he went to look for a
winch operator did not wish to `work that day.
Business Agent Hicks notified President Sloan of the
need for an extra winch operator. Hicks told Sloan he
had sent Vaught to the docks with an individual to swap
out for a winch operator.41
Vaught visited at least,two boats (a tobacco laden one
and a steel laden one) at two different berths (4 and 8)
before he was able to persuade header, McKant to release
longshoreman Richard Jenkins (Jenkins), a qualified
winch operator. Vaught gave McKant Lanier Sloan as a
37 President Sloan stated he always asked Johnson and others when he
observed them at the hiring hall when jobs were plentiful whether they
desired to work that day or not Sloan stated he questioned them so he
could remind them when they did not get certain benefits at the end of
the year based on a lack of hours that they had been too "choosy" about
the jobs they accepted and as such they had not accumulated the neces-
sary hours to receive the extra benefits.
38 Knox told Sloan he had a shoulder injury and was not going to
work that day.
39 I do not credit Johnson's testimony that Vaught did not make an
announcement about the winch operator's position. It is undisputed that
Johnson was not qualified as a winch operator.
40 Vaught stated the shortage came about because some of the long-
shoremen who had been trained as winch operators had retired, and
others were simply not taking the training necessary for that type posi-
tion
41 Hicks also informed President Sloan that Vaught had found a winch
operator and had made a swap out with the work gang that he had taken
the winch operator from. Sloan gave Hicks his okay
replacement for Jenkins .42 Vaught then transported Jen-
kins to the vessel that needed an extra winch operator
and thereafter returned to the hiring hall.
After lunch that ' same day (30 December), Johnson
spoke with Business Agent Hicks and then asked Vaught
if he had made a swap out at the state docks that day.43
Johnson testified he asked Vaught why he had not made
an announcement about the job that he gave to Lanier
Sloan . Vaught told Johnson he did not think it was nec-
essary because he thought all longshoremen with any
classification that wanted a job that clay had already
gone to work earlier that morning . Johnson . told Vaught
there were four longshoremen with classifications -in the
hall.44 Johnson then met with President Sloan in
Vaught's presence and told him what had taken place.'
President Sloan told Johnson there was nothing he could
do about it at that time.4s '
2. Analysis and conclusions
I am persuaded the General Counsel has failed to es-
tablish- that the Union unlawfully refused to refer John-
son for employment with WSC on 30 December for the
following reasons. It is clear that job positions were
plentiful at the shapeup, on 30 December, and Johnson
was present at shapeup.-Twelve-or more casuals were re-
ferred for employment on that day and any longshore-
men, including Johnson, who wanted a job that morning
could have obtained employment. At some point after
shapeup,` an extra winchoperator was needed and an an-
nouncement ' was made about the position; however,
there was no one in the hiring hall qualified as a winch
operator.46 Under the circumstances herein, it was not
unreasonable for Vaught to ask Lanier Sloan, a casual, if
he wanted to accompany him as a possible replacement
for any winch operator he might find on any work gang
at the docks. Johnson had clearly stated he did not want
to work on a tobacco laden vessel that day. Vaught at
the time he left the hall with Sloan did not know wheth-
er he would find a winch operator on a tobacco laden
vessel or on some other type ship. Likewise, Vaught was
justified in assuming that anyone who was still at the
hiring hall at the time he left with Lanier Sloan did not
42 Jenkins did not want to be,utdized as a winch operator, but after
some persuasion agreed to the swap out.
43 Johnson stated he saw Jenkins in the hiring hall about 11.45 a.m,
and asked him what he was doing there so early. According to Johnson,
Jenkins told him he (Johnson) could not do the job that he (Jenkins) was
doing but he, did not tell Johnson what it was he was doing. Johnson
stated he'learned from others that Vaught had taken Jenkins to another
job and had replaced Jenkins with Lanier Sloan
44 Johnson testified that other` than himself, Leroy Tidsdale, Knox, and
William Brooks (Brooks) were in the hall. According to Johnson, Tids-
dale, who had a "C" classification, was referred to a job pursuant to an
announcement by Vaught at approximately 9 o'clock that morning.
Knox, as noted earlier, told President Sloan he did not want to work that
day. Brooks was not called as a witness and there is no evidence regard-
ing his actual availability for referral other than Johnson's testimony that
he was at the hiring hall Brooks has a D classification according to
Johnson
45 President Sloan testified that the worker who got the swap out job
had been on the job for 4 ,hours at the time Johnson spoke with him
Sloan also stated Johnson could have gone to work that morning if he
had wanted to.
46 Johnson did not contend he was qualified as a winch operator.
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
want to work that day because there had been a large
number of casuals referred for work that morning. The
evidence clearly suggests Vaught was not trying to cir-
cumvent the policy of making an announcement for a job
vacancy when he took Lanier Sloan with him because
other position vacancies were announced that morning
including the winch operator's position. Johnson did not
express to Vaught any interest in working that day. Of
the four longshoremen that Johnson contends were still
in the hiring hall, Knox did not want to work that day,
Tidsdale did work, and Brooks did not testify, therefore
little, ,if anything, is known about his actual availability
for work that morning . According to President Sloan, it
was not unusual for Longshoremen to be at the hiring hall
and yet not be seeking employment. In fact, President
Sloan testified he always questioned those who were
present in the hiring hall when jobs were plentiful about
their not going to work and even reminded them, as he
did on this occas ion, that if they came up short on hours
at the end of the year, not to blame him but to simply
recall that they had been too "choosy" in selecting jobs
they would accept. The Union's failure to make an an-
nouncement about the possible replacement job was not
an arbitrary or unlawful breach of its rules . Vaught
could not have-known at the time he left the hiring hall
if a swap out would actually take place or, if it did, on
what vessel it would take place. Therefore, there was
really nothing -for him -to announce. Inasmuch as jobs
were plentiful on the day in question, Vaught was justi-
fied in assuming that no one at the hiring hall had any
interest in filling a vacancy that a possible swap out
might create. Accordingly, after considering all the cir-
cumstances herein, I cannot find the Union acted unfair-
ly, unreasonably, without justification, or in an arbitrary
manner in its actions on 30 December. I shall, therefore,
recommend that the complaint allegations that the Union,
unlawfully refused to refer Johnson for employment with
WSC on, 30 December be dismissed.
On the foregoing factual findings and_ conclusions, I
reach the following
CONCLUSIONS OF LAW
1. ' Waterfront Services, Incorporated is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2., Wilmington Shipping Company is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
3. International , Longshoremen's Association, Local
1426 is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
4. The Union has not engaged in the unfair labor prac-
tice alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed47
ORDER
The complaint is dismissed in its entirety.
4T 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.