International Longshoremen'S Association, Local 1426 (Wilmington Shipping Co.)

National Labor Relations Board - Board Decisions

Jun 14, 1989

294 N.L.R.B. 1152 (N.L.R.B. 1989)

1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Longshoremen 's Association, Local
1426 (Wilmington Shipping Company) and
David Robinson and Sunday Briggs , Jr. and
Winfred D. Clemmons and Robert O. Willis.
Cases 11-CB-1520, 11-CB-1530, 11-CB-1532,
11-CB-1567, and 11-CB-1563
June 14, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 6, 1987, Administrative Law
Judge Hutton S. Brandon issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed an ex-
ception to the judge's "Correction.""
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,2 and
conclusions and to adopt the recommended Order
as modified.
With respect . to the remedy in this case, the
judge concluded that a backpay remedy for the
Respondent's unlawful selection of individuals for
permanent gang positions would be inappropriate.
In so doing, he relied , inter alia, on the General
Counsel's failure to name any discriminatees in the
complaint and the lack of evidence in the record
pertaining to which individuals would have been
selected for the permanent gang positions instead
of those unlawfully selected. We disagree with the
judge's conclusion in this regard.
The Board was faced with a similar remedial
problem in Iron Workers Local 433 (AGC of Cali-
fornia), 228 NLRB 1420 (1977), enfd. 600 F.2d 770
(9th Cir. 1979). In that case, the General Counsel
had established that 76 individuals 'had been dis-
patched by the respondent union in violation of the
contractual hiring hall procedures. The 76 discri-
minatees who would have been dispatched but for
the unlawful conduct were not named or identified.
Although the Board acknowledged that some cases
may present the potential for open-ended litigation
concerning the existence of possible. discriminatees,
' On November 25, 1988 , the judge issued a "Correction " with respect
to certain typographical errors, including an inadvertent omission, in his
decision.
' The Respondent has implicitly excepted to some of the judge's credi-
bility findings . The Board's established policy is not to overrule an ad-
ministrative law judge 's credibility resolutions unless the clear preponder-
ance 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
reversing the findings.
the Board noted that the potential was limited in
the case before it as the inquiry was limited to 76
specific instances in which named employees were
dispatched. Accordingly, the Board afforded the
General Counsel the opportunity to establish in a
backpay proceeding which individuals would have
been dispatched absent the unlawful conduct.
In the instant case , the violation to-be remedied
consists of the selection of four persons, Freeman,
Brown, Sloan, and Stidham, to be permanent gang
members on the basis of inappropriate criteria.
Hence , as in Iron Workers Local 433, the inquiry
necessary to identify the discriminatees is a limited
one.9 Accordingly, consistent with that case, we
will permit the General Counsel to attempt to
prove in a backpay proceeding which individuals
would have been selected as permanent gang mem-
bers had appropriate selection criteria been uti-
lized.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, International Longshoremen's Associa-
tion, Local 1426, Wilmington, North Carolina, its
officers, agents, and representatives, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 2(b), reletter
the subsequent paragraphs, and renumber the fol-
lowing footnote.
"(b) Make whole, with interest, 24 any qualified
employee applicants and users of the exclusive
hiring hall system denied employment opportunities
by the application of unfair, arbitrary, and invidi-
ous considerations in the selection of Freeman,
Brown, Sloan , and Stidham for permanent gang as-
signments by header Davis on August 6, 1986, for
any loss of earnings and benefits they May have
suffered as a result of the Respondent 's unlawful
conduct.
"84 In accordance with our. decision in New Horizons for the
Retarded, 283 NLRB 1173 (1987), interest on and after January 1,
1987, shall be computed at the "short-term Federal rate" for the
underpayment of taxes as set out in the 1986 amendment to 26
U.S.C. § 6621. Interest on amounts accrued prior to January 1,
1987 (the effective date of the 1986 amendment to 26 U.S.C. §
6621 ), shall be computed in accordance with Florida Steel Corp.,
231 NLRB 651 (1977)."
' We do not mean to imply that a finite number of potential discrimina-
tees is necessarily a prerequisite to leaving the identification of discrimm-
atees to the compliance stage of the proceeding , nor need we decide
what the result would be here were the inquiry less limited than it is.
4 We note , as the Board did in Iron Workers Local 433 at 1441, that the
General Counsel's task in the backpay proceeding is a difficult one. See
also Teamsters Local 328 (Blount Bros), 283 NLRB 779 at fn. 2 (1987).
294 NLRB No. 92
LONGSHOREMEN ILA LOCAL 1426 (WILMINGTON SHIPPING)
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten employee-members that
their opposition to union leadership in the oper-
ation of our exclusive hiring hall system will meet
with diminished opportunity for header positions
or with other unspecified reprisals.
WE WILL NOT breach our duty of fair represen-
tation or discriminate against individuals within the
same seniority classification under the collective-
bargaining agreement and seniority plan by choos-
ing individuals for permanent gang assignments
based on arbitrary, unfair, or invidious consider-
ations.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL select employee applicants for perma-
nent gang assignments on the basis of fair and ob-
jective criteria consistent with the collective-bar-
gaining agreement and seniority plan in effect with
Wilmington Shipping Company and North Caroli-
na Shipping Association.
WE WILL make whole, with interest, any quali-
fied employee applicants and users of the exclusive
hiring hall system denied employment opportunities
by header Davis' use of unfair, arbitrary, and invid-
ious considerations in the selection of Freeman,
Brown, Sloan, and Stidham for permanent gang as-
signments, for any loss of earnings and benefits
they may have suffered as a result of our unlawful
conduct.
INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, LOCAL 1426
Paris Favors Jr., Esq., for the General Counsel.
A. A. Canoutas, Esq., of Wilmington, North Carolina, for
the Respondent.
DECISION
STATEMENT OF THE CASE
HuTTON S. BRANDON, Administrative Law Judge.
These cases were tried at Wilmington, North Carolina,
on 28-29 July 1987. The charge in Case 11-CB-1520 was
filed on 27 January 1987, amended 27 February, by
1153
David Robinson, an individual (Robinson). The charge in
Case 11-CB-1530 was filed on 2 March 1987 by Sunday
Briggs, Jr., an individual (Briggs). The charges in Cases
11-CB-1532 and 11-CB-1567 were filed on 10 March
and 26 June 1987, respectively, by Winfred D. Clem-
mons, an individual (Clemmons), while the charge in
Case 11-CB-1563 was filed by Robert O. Willis, an indi-
vidual (Willis), on 5 June 1987. A complaint on the ini-
tial charge issued on 13 March 1987 and subsequent
orders consolidating cases and consolidated complaints
incorporating allegations of the subsequently filed
charges issued on 30 April, 29 May, and 10 and 14 July
1987. The primary issues presented by these cases are
whether International Longshoremen's Association,
Local 1426 (Respondent or the Union) violated Section
8(b)(1)(A) of the National Labor Relations Act (the Act)
by (a) threatening employee-members that their opposi-
tion to the manner in which Respondent was operating
its hiring hall would be futile and would result in unspec-
ified reprisals, (b) threatening to deny employee-members
the position of "header" if they opposed the manner in
which Respondent operated its hiring hall, (c) refusing to
allow employee-members to participate fully and freely
in union meetings and affairs, (d) denying voting privi-
leges to an employee-member in a union meeting because
the employee-member participated in criticism of union
officials, and (e) refusing and failing to represent employ-
ees for unfair, arbitrary, and invidious reasons in breach
of its fiduciary duty. The consolidated complaint also
presents issues regarding whether Respondent violated
Section 8(b)(1)(A) and (2) of the Act in causing employ-
ee-members of North Carolina Shipping Association (the
Association) including Wilmington Shipping Company
(the Company) to discriminate against certain employees
by (a) failing and refusing in connection with the oper-
ation of an exclusive hiring hall to establish objective
standards for the selection of individuals for permanent
assignment to work gangs and instead establishing, imple-
menting, and maintaining an arbitrary and discriminatory
selection system for such assignments, and (b) failing and
refusing to establish and maintain objective standards for
the referral of casual employees to employer-members of
the Association and the Company.
On the entire record,' including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and Respondent, I
make the following
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges, and Respondent admits, that
the Company is a North Carolina corporation with a fa-
cility located at Wilmington, North Carolina, where it is
engaged-in oceanic shipping. Based on the credible and
i The record contains a substantial number of errors including mis-
spelled words However, neither party filed a motion to correct the
record Accordingly, because I find no significant omissions in the record
and because the errors that exist are generally apparent to the reader and
have no material impact on the meaning of the remarks reported, I will
not sua sponte correct the record
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
uncontradicted testimony of William White, an employee
of the Company's Marine Operation Section, the Compa-
ny during the 12-month period prior to the hearing re-
ceived in excess of $50,000 for services rendered directly
to customers located outside the State of North Carolina.
The complaint alleges, and I find, that the Company is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. The complaint also
alleges, Respondent's answer admits, and I find that Re-
spondent is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
'A. Introduction
The Association is a multiemployer bargaining group
representing its members, including the Company, in ne-
gotiations and contract administration with various
unions including Respondent. The bargaining unit for the
employees represented by the Union is admitted by the
parties herein to be:
All employees engaged in the loading or unloading
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 Association' and the Union were parties to a bar-
gaining agreement covering, inter alia, the Company's
unit employees effective from 30 September 1983 until
midnight 30 September 1986. This agreement was suc-
ceeded by another one effective through 30 September
1989. No claim is made by any party that the new agree-
ment resulted in any change material to the case sub
judice.
Although not specifically provided for in the collec-
tive-bargaining agreement, the Association and Respond-
ent have an understanding or practice under which Re-
spondent is the sole source of referrals for employment
with members of the Association, including the Compa-
ny, in the unit described above. Respondent's president,
Willie Sloan, admits to this understanding and practice.
Employees are referred for employment through
"gangs," on a rotating basis The gangs are made up of a
number of permanently assigned employees with a per-
manent "header" or foreman. If there are not enough
men in a gang to supply the requesting employer's needs,
additional men are selected for the gangs by the header
with selection preference accorded on the basis of a
somewhat complex seniority classification system agreed
to by the Association and the Union in October 1981
(the seniority plan) as set forth below:
Class A:' Class A seniority shall be enjoyed by
those men who'were employed at any time as long-
shoremen during the base period October 1, 1957 to
September 30, 1952, and who have maintained con-
tinuous services,at such occupation since October 1,
1962.
Class B: Class B seniority shall be enjoyed by
those men who were employed as longshoremen
600 hours or more for any 2 contract years during
the period October 1, 1962 to September 30, 1966
and who have maintained continuous service at
such occupation since October 1, 1966.
Class C: Class C seniority shall be enjoyed by
those men who were employed as longshoremen
600 hours or more during the contract year October
1, 1966 to September 30, 1967 and who maintained
continuous service at such occupation since that
time.
Class D: Class D seniority shall be enjoyed by
those men who were employed as longshoremen
600 hours or more during the contract year October
1, 1967 to September 30, 1975 and who maintained
continuous service at such occupation since that
time.
Class E: Class E seniority shall be enjoyed by
those men who were employed as longshoremen
300 hours or more during the contract year October
1, 1980 to September 30, 1981.
Casual. Casual seniority shall be enjoyed by those
men who do not fall within Class A, B, C, D, or E,
and who work or made themselves available for
work as longshoremen on and after October 1,
1968.
Each 5 years from the effective date of this plan,
each classification with Class B, C, D, and etc. who
have maintained continuous service shall be elevat-
ed one classification level.2
The classification system also provided that members of
Classes A, B, C, and D must continue to maintain 700
hours or more of service as longshoremen during future
contract years to maintain their seniority while Class E
members were required to maintain 500 hours or more of
service during future contract years to maintain seniori-
ty.
The classification system was revised effective 31 Oc-
tober 1986 to provide for certain new classifications. The
old classification A became classification AA while the
old B classification became the new A classification. The
other classifications were changed by changing the quali-
fication period provided in each classification . The new
E classification was defined as follows:
Class E seniority shall be enjoyed by those men
who do not fall within Classes AA, A, B, C, and D
and who work or make themselves available for
work as longshoremen on or after October 1, 1968
through September 30, 1985.
Under the new classification system , anyone working
subsequent to 30 September 1985 who did not fall within
any of the other categories were to be considered as
"casuals."
In practice , employee-applicants meet each morning at
the union hall for a work "shape up." Headers, after re-
ceiving dispatch information from the union business
2 "Continuous service" was defined as meaning a man must have
worked a minimum of 400 hours as a longshoreman each successive con-
tract year from the base period through September 30, 1962, and 600
hours each successive contract year beginning October 1, 1962, through
September 30, 1981
LONGSHOREMEN ILA LOCAL 1426 (WILMINGTON SHIPPING)
agent, proceed to gather their gangs for work selecting
first their regular gang members in order of their seniori-
ty classifications , assuming they are qualified to fill the
positions requested by the employers . In the event the
regular gang members are insufficient in number to fill
the dispatch order or if some are not qualified for the
work , the header proceeds to hire outside the regular
gang those persons at the union hall seeking employment
but still making his selection upon the basis of the senior-
ity classifications , i.e., selecting from the A classifications
first and then the lower classifications in order . Howev-
er, the header appears to be free under the system to ex-
ercise purely subjective considerations in choosing be-
tween individuals within the same seniority classification.
Following exhaustion of the selections from classifica-
tions A through E without filling the number of employ-
ees required by the employer , the header then completes
his selection from among individuals classified as casuals.
All individuals seeking referral are given a classification
card indicating this classification . The card is shown to
the header to prove one 's classification , but generally the
header is personally aware of the classifications of most
of those seeking referrals.
The employer-union seniority plan provides that man-
agement shall select the headers after considering recom-
mendations of the Union The plan provides , however,
that headers are responsible to the employers for select-
ing and working all of their men in the proper catego-
ries The plan further points out that it is essential that
all headers pay strict attention to choosing men in the
proper categories in filling out their gangs . It further
provides that headers are required to replace men within
gangs when vacancies occur with those men in senior
categories providing they are qualified , giving first con-
sideration to regular gang men promoting them to key
vacant positions if they are qualified Replacements are
required to be picked from the seniority list in classifica-
tion order when possible and provided men in those
groups are available and qualified . A seniority board is
provided for in the plan made up of members of both
management and the Union and it is the function of the
board to, inter alia, consider disputes regarding deliber-
ate violations of the hiring rules by a header.
As a practical matter, because of automation and a
general lack of work among longshoremen in the Wil-
mington area in recent years, it has not been necessary to
resort to casuals for referrals , and selections from that
classification have therefore been rare insofar as this
record shows. Selection of casuals , it appears , is based on
the discretion of headers making the selection from those
casuals present at the shapeup on any given day when
the choices from the higher classifications had been ex-
hausted.
B. The Alleged Violations of Section 8(b)(1)(A)
and (2)
1. The increase in the size of gangs
Based on the testimony of Willie Sloan, president of
Respondent, Respondent historically had maintained 20
work gangs in Wilmington and 3 carpenter gangs, the
latter being used to shore up cargoes . At some point in
1155
time, however, according to Sloan , management and Re-
spondent agreed to cut the number of regular gangs to
15 because of a lack of work in the area. The number of
carpenter gangs remained at three. Each regular gang
was entitled to have permanently assigned members.
However , some gangs did not have all their permanent
gang member positions filled
In the summer of 19863 Sloan decided to attempt to
increase the allotted number of individuals in each gang
from 10 to 14. Based on Sloan 's testimony , increasing the
size of the gangs increased the likelihood that those per-
sons selected for permanent assignment to the gangs
would receive more work . It is evident , theoretically at
least , that while such selections would not change the
volume of work available or assure employment , the se-
lections would at least reduce or obviate to a degree the
competition for work the individuals selected would oth-
erwise have to undergo if not permanent gang members.
To increase the size of the gangs Sloan found it neces-
sary to obtain the permission of the Association and the
trustees of the South Atlantic International Longshore-
men's Association/Employer's Guaranteed Annual
Income Fund ,4 because of a perception that an increase
in the number of permanent positions in gangs might ad-
versely impact on the fund 's liability . Sloan apparently
cut his request from 14 to 12 persons per gang. Permis-
sion was granted at a meeting of the fund 's trustees on 28
July. Sloan thereafter set about increasing the size of the
gangs by ascertaining those union -members who were el-
igible for gang assignments . A list of 47 persons was
made up and posted at the union hall. The list , dated 5
August 1986, was captioned "Eligibility List For Gang
Assignment ." Another list was also composed of 23
names of persons who paid their dues up to the date of 6
August, and, as Sloan testified , were eligible for perma-
nent assignment 5
Sloan also called a membership meeting for 6 August
by posting a notice in the union hall around 5 August
Just prior to the general meeting, Sloan testified he met
with the gang headers, told them of the increase in the
number of the permanent assignment to gangs, and gave
them the list of persons eligible for selection to the
gangs. There was opposition voiced by the headers of
the 3 carpenter gangs who complained there was not
enough work to increase their gangs to 12 each On
hearing their complaints , Sloan agreed and the size of
their gangs was left at 10. Nevertheless , the carpenter
gangs still had vacanies which they proceeded to fill by
selecting men from the list provided by Sloan The regu-
lar gang headers also proceeded to select permanent
gang members at the meeting.
Sloan testified that all of the persons listed as eligible
for permanent gang assignments were within the same
3 All dates hereafter are in 1986 unless otherwise stated
4 The Guaranteed Annual Income Fund (GAI) was established to
insure an annual income to certain qualified longshoremen whose jobs
were affected by automation The fund is called on to supplement the
income of those qualified if work is not available for them Longshore-
men who qualified for GAI also were given a preference in job referrals
by virtue of their qualification in the higher seniority classifications
Ten of the twenty-three names on this list which was not posted had
also appeared on the 5 August list
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
seniority classification,6 and he gave no instructions to
the headers regarding selections they were to make.
Carpenter gang header Eugene Davis testified for the
General Counsel that he made six selections for perma-
nent assignment to his gang on 6 August. Some of his se-
lections were based on his knowledge of work ability of
the individuals selected, some on the recommendations of
other headers or subheaders, and four? on nothing more
than the request of a relative of the individual selected.
Because of some confusion due to at least one individual
opting to go into a different gang after already selected
by Davis, and to the failure to list one of Davis' regular
gang members, Davis overfilled his gang vacancies by
one but was allowed by Sloan to retain all his selections.
a. Arguments of the parties
The General Counsel in this case has not generally at-
tacked the Union's referral or dispatch system as it is
outlined above. Nor was the system itself attacked by the
General Counsel in earlier litigation involving this Re-
spondent. See Longshoremen ILA Local 1426 (Waterfront
Services), 283 NLRB 1042 (1987). What is alleged as dis-
criminatory and unlawful is the method of selection of
employee-member applicants for permanent assignment
to gangs. Starting from the proposition that a union in
the operation of an exclusive hiring hall has the duty and
responsibility of administering the hall in a fair and equi-
table manner, the General Counsel proceeds to the prop-
osition that discrimination against employees in the oper-
ation of an exclusive hiring hall for arbitrary and capri-
cious reasons violates the Act regardless of whether the
discrimination is predicated upon union membership or
lack thereof In support of this position, the General
Counsel cites NLRB v. Teamsters Local 5, 778 F.2d 207,
213 (5th Cir 1985), enfg. 272 NLRB 1375 (1984), and
Teamsters Local 174 (Totem Beverages), 226 NLRB 690
(1976). Arguing further, the General Counsel contends
that the permanent assignment of men to gangs (which
the General Counsel equated to referrals) without refer-
ence to objective criteria,or standards violated Section
8(b)(1)(A) and (2) of the Act because it affected employ-
ment and inherently encouraged union membership.
While conceding that all of the individuals subject to se-
lection for permanent gang assignment on 6 August be-
longed to the same seniority classification, the General
Counsel claimed the ultimate selection for permanent
gang assignment was based on the header's sole preroga-
tive without the benefit of any objective criteria to be
utilized in making the selection In this regard, the Gen-
eral Counsel points to the uncontradicted testimony of
header Davis to the effect that he selected four people
for his gang based simply on the recommendation or re-
6 Sloan referred to this classification as the "F" classification and ex-
plained that the employers and Respondent had agreed to this classifica-
tion sometime around 1983 The "F" classification and its standards were
never set forth in the record According to Sloan, the "F" classification
was eliminated in the October revision of the seniority plan by the par-
ties
These individuals were William D Freeman, Roderick (or Robert as
the record in other places suggest) Brown, Howard Sloan, and Carl Stid-
ham Jr It is not clear from the record, however, that Freeman's selection
was effectuated and that he was actually placed on Davis' team
quests of their relatives. The selection was therefore arbi-
trary, invidious, and irrelevant to legitimate union inter-
ests and adversely impacted on the employment pros-
pects of those not selected.
Respondent's position essentially is that the hiring
system had been agreed to by the Union and the Asso-
ciation under the seniority plan, and the selection of men
for gangs was made by the headers as it always had been
consistent with the seniority plan. The headers, Respond-
ent's brief asserts, are the employers' agents, not the
Union's, in the selection process.
b. Analysis and conclusions
It is well established that a labor organization violates
both Section 8(b)(1)(A) and (2) of the Act where it re-
fuses to refer an individual to work under an exclusive
referral system for discriminatory reasons See, e.g., La-
borers Local 135 (Bechtel Corp.), 271 NLRB 777, 780
(1984); Plumbers Local 17 (FSM Mechanical), 224 NLRB
1262 (1976); Electrical Workers IBEW Local 675 (S & M
Electric), 223 NLRB 1499 (1976). Violations of the Act
in connection with the operation ,of an exclusive hiring
hall are not limited to those situations where discrimina-
tion is found flowing from union membership or lack
thereof. It has been held that discrimination in job refer-
rals based on race, sex, and nepotism also violates Sec-
tion 8(b)(1)(A) and (2). See NLRB v. Teamsters Local 5,
supra at 213 This is because discrimination for such rea-
sons is considered arbitrary, invidious, and in breach of
the Union's duty of fair representation outlined in Vaca v.
Sipes, 386 U S. 171 (1967). Thus, unions in the operation
of exclusive hiring halls must give due regard to the fair
and equal treatment of referral applicants. Arbitrary or
invidious treatment of such applicants will be presumed
to encourage union membership in violation of the Act.
See Carpenters Local 25 (Macon Corp.), 270 NLRB 623
(1984), enfd. 769 F.2d 574 (9th Cir. 1985). See also Mill-
wrights Local 2834 (Atlantic Maintenance), 268 NLRB 150
(1983).
In considering whether an exclusive hiring hall is op-
erated in an arbitrary manner, the absence of written
rules, although not alone determinative, is evidence of
the unfairness of the system. Stage Employees IATSE
Local 592 (Saratoga Arts), 266 NLRB 703 (1983) But the
absence of any standards, written or otherwise, normally
will result in a violation of Section 8(b)(1)(A) and (2) of
the Act for it establishes a breach of the Union's duty of
fair representation which causes an employer to discrimi-
nate against referral applicants. NLRB v. Teamsters Local
5, supra.
On the other hand, an employer is not burdened with
a "duty of fair representation" in the hiring process and
may act arbitrarily in selecting individuals for hire so
long as the selection criteria are not proscribed by Sec-
tion 8(a)(3) and (1) of the Act, or some other statute, or
a collective-bargaining provision. Thus, it has been said
insofar as the Act is concerned, an employer may dis-
charge or refuse to hire an employee for a good reason,
a bad reason, or no reason at all so long as the reason
does not relate to union or protected activity. Stage Em-
ployees IATSE Local 592, supra.
LONGSHOREMEN ILA LOCAL 1426 (WILMINGTON SHIPPING)
With this distinction in the respective statutory obliga-
tions on the Union and the Association as employer in
the instant case, the agency status of the header becomes
critical . If a header is the employer 's hiring agent, he
may be arbitrary in the selection process as long as union
membership considerations or protected activities are not
selection factors. Both sides herein were requested to
treat the issue of the header 's agency status in their briefs
and neither did so. The General Counsel 's brief merely
asserts that the headers are appointed by the Union. That
is only half true. The Union -Association seniority plan
specifically provided that management select headers
after "considering recommendations of the Union." And
while there was no testimony that the employers had
ever rejected the Union 's recommendations for headers,
neither the collective -bargaining agreement nor the se-
niority plan compelled acceptance of the Union 's recom-
mendation . The seniority plan further provided that the
headers were "responsible to the employers for selecting
and working men in the proper categories."
Based on the testimony of E B . Davis, headers pos-
sessed not only the authority to hire employees within
the guidelines of the seniority system and referral plan
and subject to review of the seniority board made up of
union and management representatives , but also had the
authority to' 'fire employees . Thus, headers who were
members of the Union were also supervisors within the
meaning of Section 2(11) of the Act. But because the
header was a union member and essentially achieved his
position by virtue of the Union 's recommendation, the
header obviously had mixed loyalties which gave the
Union potential influence in the header employee selec-
tions beyond the guidelines imposed by the seniority plan
in the collective -bargaining agreement .8 Union control of
hiring and consequently responsibility therefor under the
Act was found by the Board in an almost identical hiring
system using headers in Longshoremen ILA Local 1480
(Jacksonville Maritime), 258 NLRB 132 ( 1981). In an-
other case involving a longshoremen hiring hall, gang
foremen or "bolsters" similar to the headers in the in-
stant case were found to be agents of both the employer
and the union in the hiring process. Master Stevedores
Assn . of Texas, 156 NLRB 1032 (1966). See also Stage
Employees IA TSE Local 592, supra, where dual agency
was found in a hiring process when the employer repre-
sentative was also the union 's business agent. I find the
headers in the instant case to likewise occupy a dual
agency status in the hiring system here involved As dual
agents, the headers were bound by the Union 's obligation
under the Act not to base selection in the hiring process
on its selection for permanent gang assignment (which
affected employment) on unfair, arbitrary , or invidious
considerations . However , as employer representatives,
headers could exercise those lawful prerogatives pos-
sessed by an employer so long as the seniority classifica-
tion system was adhered to .9 Thus, the headers ' knowl-
e This potential, perhaps even actual control, is evident by Sloan's tes-
timonial boast herein that "you can't get a job or can't get position unless
it comes from the crow's nest "
0 Under the collective-bargaining agreement, "the right to hire and
discharge" was specifically reserved to the employers Though not in-
volved in the instant case employer discretion, where specifically pre-
1157
edge of an individual's seniority, qualifications, ability,
availability, and desire for work constitute objective
standards which could be relied on in making selections
on employees' behalf for permanent gang assignment.
See Stage Employees IATSE Local 592, supra at 710.
Indeed, the seniority plan here provides that in choosing
gang replacements as well as selections for referral, se-
niority is subservient to qualification for the position
filled. That all of the aforementioned criteria are not
written down or published is not of great consequence,
for when exercised on behalf of the employer, they are
"conventional standards which are commonly utilized
for hiring." Id. at 710 Thus, to the extent any header
relied on these criteria in making permanent gang selec-
tions, the selections were clearly lawful as long as the se-
niority classification system was followed 10 Reliance on
such criteria in exercising discretion for selections within
classifications also may not be .regarded as unlawful even
where the criteria are not specifically spelled out.
Considering the foregoing, the dual agency status of
the headers, the discretion of headers as employer repre-
sentatives to exercise some discretion within classifica-
tions, and the fact that the selection for permanent gang
assignments were made pursuant to the same written and
objective system of procedures by which selections for
employment were made in the hiring or shapeup process,
which the General Counsel has not attacked, I find the
evidence insufficient to establish the complaint allegation
that Respondent failed to establish objective standards
for the selection of individuals for permanent gang as-
signment . Rather, the evidence shows the selections for
permanent gang assignments were all made from the
same "F" classification, i i and were therefore not incon-
served, may extend to the selection of employees for referral by name
notwithstanding their ranking in an exclusive referral procedure The pre-
sevation of such discretion is neither unusual nor unlawful See, e g , Iron
Workers Local 483 (Building Contractors), 285 NLRB 123 (1987)
10 The argument that the General Counsel makes here that the Union's
selections for gang assignments were arbitrary, discriminatory, and un-
lawful in the absence of the establishment of specific objective standards
for selection would logically extend to the hiring or referral system itself,
since the headers had similar discretion in the selection of the employee-
applicants within the same classification in making their selections during
shapeups Yet, there was no evidence of any specific wrongful exercise of
that discretion in the shapeups, however, and the complaint did not
allege that the hiring system was unlawful itself Further, the General
Counsel's brief does not generally attack the hiring rules, the classifica-
tions, or the process of making selections within classifications in the
hiring system Accordingly, no conclusions are made here with respect to
the legality of the hiring system or the exercise of discretion by the head-
ers in selecting employees for hire within the same classification
11 There is a suggestion in the testimony of Sloan that union member-
ship was an element of eligibility for inclusion in the "F" classification
and thus permanent gang assignment If this were so, the classification
and selections were clearly discriminatory and unlawful because they
were based upon union membership considerations However, as noted
above, the standards for inclusion in the "F" classification and the date
the classification was established are not set out in the record The Gen-
eral Counsel's brief equates the "F" classification with the casual classifi-
cation, but there appears to be no record basis for that equation In any
event, the General Counsel does not argue that the eligibility list pre-
pared by the Union for permanent gang assignment was restricted to
union members Accordingly, and also because the complaint includes no
allegation on this point, I make no finding regarding the list from which
the gang assignment was made
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sistent with the established, written, and objective classi-
fication system. Accordingly, I conclude there was a
written and objective system for the selection of perma-
nent gang members under the seniority plan and that
system extended to selections within classifications not-
withstanding the existence of some discretion on the part
of headers as employer representatives in the selection
process. Thus, I find no violation of Section 8(b)(1)(A)
and (2) of the Act in the established selection process for
permanent gang assignments.
The foregoing does not bar a finding of unlawful con-
duct on the part of Respondent by virtue of an abuse of
discretion in the selections of headers as union agents
where based on an abuse of discretion where there was
reliance on arbitrary, unfair, and invidious factors in the
permanent gang selections. As already related, in their
dual agency capacity, the headers as representatives of
Respondent were bound not to make selections on an
unfair, arbitrary, or invidious basis. The uncontradicted
testimony of header Davis clearly reveals that on 6
August he selected Freeman, Brown, Sloan, and Stid-
ham, for permanent gang assignments in Davis' gang on
nothing more than the request by relatives of these four
men. As an employer agent, Davis could lawfully grant
such requests, but as a union agent he could not. Thus,
Davis' selections can only be regarded as unfair, arbi-
trary, and invidious.12 No selections of any other head-
ers were shown to be based on similar invalid factors.
Although Davis' selections were not specifically alleged
to be unlawful, the General Counsel's citing of Davis' se-
lections as reflecting the absence of objective criteria in
the selection process puts their legality in issue. I find the
matter has been addressed and litigated by the parties
and is therefore ripe for decision. See Crown Zellerbach
Corp., 225 NLRB 911, 912 (1976); Rochester Cadet Clean-
ers, 205 NLRB 773 (1973). Because Davis' selections
made in his dual agency capacity were clearly unfair and
arbitrary, I find the Union violated Section 8(b)(1)(A)
and (2) of the Act with respect to these four particular
selections for permanent gang assignments.
2 The lack of objective standards in the referral
of casuals
a. The facts
The complaint alleges that Respondent has failed to es-
tablish and maintain objective standards for the referral
of casual employees under the exclusive referral system
and in such failure violated Section 8(b)(1)(A) and (2).
The referral system has already been set out above.
"Casuals" are at the bottom rung in the referral ladder.
The headers select casuals only if they are unable to fill
available work slots from the higher classifications All
casuals are obviously in the same referral group and
compete with each other for referrals. The headers
appear to exercise their subjective discretion in selecting
a casual during a "shape up."
12 Davis' other selections were based on his personal knowledge or
that of his subheader, Sam Brown, of the work ability of those selected,
The material facts on which the General Counsel
relies to establish a violation regarding the referral of
casuals are found primarily in the testimony of Robert O.
Willis. Willis testified he had been a member of Respond-
ent until 1972 but dropped out when he went into busi-
ness for himself. He applied for reinstatement in the
Union, but at the time of the hearing had not been rein-
stated.13 Willis did not return to the Wilmington area
and seek employment through the Union's referral
system until December 1986 and did not begin to appear
for daily "shape ups" until January 1987. Willis, who
was classified as a casual, testified he asked all the head-
ers at shapeups for work "at one time or another" but
was able to obtain work only 1 day in January and 1 day
in February. Willis testified that he had no idea how
many casuals he was competing against, but the General
Counsel does not argue, nor does the complaint allege,
that Willis was the object of specific discrimination in
the referral system.
The General Counsel argues, as noted, that the hiring
system with respect to casuals was unlawful because of
the absence of any apparent objective criteria in the se-
lection of casuals for work. There are, as the General
Counsel points out, no written standards for the qualifi-
cation of casuals, and no order of selection of casuals
within the classification. The General Counsel claims
that Willis was obviously qualified for referral having
worked on the docks prior to 1972 and asserts Respond-
ent failed to establish why Willis was not selected for
work. Respondent, on the other hand, in its brief simply
asserts that under the collective-bargaining agreement
the headers are responsible to the employer for selecting
and working their men in the appropriate categories and
thus the headers are agents of the employer rather than
the Union in making the selections from within the
casual classification.
b Conclusions
There is not only no evidence, but also no allegation,
of any actual discrimination against Willis in this case be-
cause there was absolutely no evidence 'that any other
casual employee was selected by a header ahead of him
on any occasion. In the absence of a prima facie case of
discrimination against Willis, Respondent had no burden
to establish why Willis was not selected, particularly in
light of Sloan's uncontradicted testimony that work was
slow and few casuals were ever referred. However, and
in any event, the issue of specific discrimination is irrele-
vant to the General Counsel's basic contention of a vio-
lation by Respondent based on the absence of objective
criteria for selecting among casuals for hiring. The Gen-
eral Counsel's contention in this regard is based on the
discretion utilized by headers in selecting casuals, but it
is again strangely inconsistent with his failure to attack
the referral system generally, for headers clearly have
discretion in selecting people within classifications other
and, accordingly, were based on objective factors on which Davis,as the 13 Sloan testified that Willis' application had not been accepted or re-
employer agent could lawfully rely and were not therefore unfair, arbi- jected and explained that Respondent has not taken any new members
trary, or unreasonable into the Union since 1981
LONGSHOREMEN ILA LOCAL 1426 (WILMINGTON SHIPPING)
than casuals bound only by classification , seniority, and
"qualifications." 14
I have previously found that headers are dual agents
of both the Union and the employer in making selections
during shapeups . They were thus bound not only to the
contractual and seniority plan provisions regarding selec-
tions but also to the Union 's duty of fair representation,
i.e , to make selections without an unfair , arbitrary, or in-
vidious basis. As noted , there is no evidence that any
header breached any obligation of either the employer or
the Union in making selections of casuals here. But more
directly responsive to the General Counsel 's argument
here is the unrebutted fact that there is a written and ob-
jective standard for the referral of casuals spelled out in
the collective -bargaining agreement and the seniority
plan. Seniority , to the extent of the order of referral of
casuals among classifications , and qualifications for the
work are the stated standards . In practice , presence at
the shapeup is also a practical factor because it constitut-
ed an expression of desire for work . To be sure , discre-
tion was allowed the header where all these factors were
equal , but one must recall that this hiring system , like the
one considered in Stage Employees IATSE Local 592,
supra, was not a conventional one, and because of the
dual agency status of the header , no conventional refer-
ral took place . 15 Rather , there is a hiring by the dual
agent . Discretion on the part of the dual agent making a
hiring selection at shapeups using any conventional
standard normally used for hiring by an employer is not
unlawful even if the standards are unwritten or unpub-
lished so long as they are not inconsistent with the estab-
lished and published hiring system provisions and agree-
ments or do not breach statutory obligations imposed on
either 'of the dual agent 's masters.
Casuals here, under the hiring agreement and seniority
plan, had equal access to all headers during the shapeup
process. Each had an equal opportunity to persuade the
headers of their classification , experience , desire for
work , and ability 16 Each could inquire of the header
why he was not selected if that is the case, and , if unsa-
tisfied with the explanation, may file a complaint with
the seniority board made up of union and management
representatives set up under the seniority plan to rule on
disputes regarding the seniority plan and hiring regula-
tions.17 Considering the foregoing , and notwithstanding
the exercise of discretion by headers in the selection for
hire among casuals (as with the selections from within
any seniority classification in the hiring system), and in
the absence of evidence that in practice selection of casu-
i" The only other standard mentioned in this case for the selection of
casuals for hiring at a shapeup was an objective one mentioned by Davis
in his testimony Thus, Davis testified that in hiring within classifications
he tried to hire the one who asked him for the job first
is As said by the administrative law judge in Stage Employees IATSE
Local 592, supra at 708-709, regarding "referrals" "That term more
properly pertains to situations where different agents of two entities, op-
erating at arm's length, interact to bring about the employment of an ap-
plicant "
16 This procedure also distinguishes the hiring system here from the
normal "referral" cases where an individual who fails to be referred
never has the opportunity to personally appeal to the employers hiring
agent regarding employment
17 Both employees and headers are subject to progressive discipline for
breach of the hiring regulations provided in the seniority plan
1159
als was on some arbitrary, invidious, or unfair basis, I
conclude the Union did not fail to establish or maintain
objective standards for the referral of casual employees
in violation of Section 8(b)(1)(A) and (2) of the Act. Ac-
cordingly, I shall recommend that the complaint be dis-
missed in this regard.
C. The Alleged Independent Violations of Section
8(b)(1)(A)
The Threats Attributed to Willie Sloan'
The testimony of Winfred Clemmons, a member of
Respondent since 1963 and presently in the A classifica-
tion of the seniority system, provides the basis for the
complaint allegations of 8(b)(1)(A) violations attributed
to Union President Sloan. First in point of time, the com-
plaint alleged that in mid-August 1986 Sloan threatened
employee-members who opposed the manner in which
Respondent was operating its hiring hall with unspecified
reprisals. Clemmons testified that in mid-August he was
assigned by a stevedore named Larry Wilson to redo
some work that had previously been improperly done by
another gang. Clemmons' testimony suggests Wilson was
complaining about the quality of work of the new per-
manent gang members selected in early August. Clem-
mons, who was opposed to having the gangs enlarged,
commented that perhaps Wilson should have Sloan over
to check out the quality of the work of the new men,
adding that some of the new men did not know what
they were doing. A few days later, Sloan called Clem-
mons into his office and remarked that he had heard of
Clemmons' remarks to Wilson through an unnamed long-
shoreman, and observed that no one who supported
Sloan would make a remark like that. Sloan added that
he had a "new thing" coming up in 1987, and in Clem-
mons' words, "if he had given anybody anything, if they
support him he was going to take it, and if he had any-
thing to give to anybody and they didn't support him, he
wasn't going to give it to them."
As a witness Clemmons tended to generalize, ramble,
and frequently testified in vague and conclusionary
terms. However, Sloan did not specifically contradict
Clemmons regarding the above remarks. Accordingly,
and because I perceived Clemmons to be an honest indi-
vidual who was attempting to be factual, I credit Clem-
mons. The General Counsel contends that Sloan's remark
constituted a threat. I concur The record shows that as
a practical matter Sloan by specific recommendations to
the employers could affect the appointment of headers
and "subheaders" who filled in during the absence of
headers. Thus, the Union could clearly affect job oppor-
tunities of dissidents. Under these circumstances, I find
Sloan's remark to Clemmons was a clear threat, that to
oppose Sloan would be to risk reprisals. See Carpenters
Local 25 (Mocon Corp.), supra at 630. By this threat, I
conclude, Respondent violated Section 8(b)(1)(A) as al-
leged.
The complaint alleges an additional threat of unspeci-
fied reprisals by Sloan on or about 15 December 1986 as
well as a threat,on the same date to employee-members
that their opposition "to the manner in which Respond-
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent was operating its hiring hall would be futile." The al-
legations grew out of a petition circulated among em-
ployees and signed by Clemmons protesting the August
1986 increase in the size,. of the gangs and seeking to
have the new gang members removed 18 Clemmons tes-
tified that in mid-December 1986, he attended the funeral
of a fellow member of Respondent where he met Sloan
in the presence of Clayton Vaught, vice president of the
Union, and Robert Williams, a retired union member.
Sloan inquired if Clemmons had his "paper" ready yet
Clemmons asked what he was talking about and Sloan
replied he was talking about the petition and added that
Clemmons could throw it in the trash, because it "ain't
going to do any good," and that the men would stay in
the gangs. Clemmons' testimony was generally corrobo-
rated by Williams.
Sloan recalled attending the funeral but could not
recall talking to Clemmons there. Vaught did not testify
on this matter. Sloan conceded that on another occasion
he had told Clemmons, in effect, that the opposition to
the increase in the size of the gangs was useless because
the employers and Respondent had agreed to it. Clem-
mons' testimony on this point as corroborated by Wil-
liams is credited, particularly in light of Sloan's admis-
sion to having made a similar remark to Clemmons.
The General Counsel argues that Sloan's remark was
coercive and violative of Section 8(b)(1)(A). Since any
opposition to Respondent's officials engaged in by Clem-
mons was conduct protected under the Act as outlined in
Steelworkers Local 1397 (United States Steel), 240 NLRB
848, 849 (1979). Although Clemmons' involvement in a
petition in opposition to Respondent's leadership may
have constituted activity protected under the Act, I find
Sloan's remarks too vague to be considered as a threat.
Sloan's remarks regarding the futility of the petition was
nothing more than an expression of his opinion protected
under Section 8(c) of the Act. Nothing in Sloan 's remark
precluded the employee-members pursuit of their goals
with the petition. And although Sloan's remarks may
have been discouraging to supporters of the petition, no
retaliatory action was threatened. Accordingly, I find no
violation of the Act based on remarks attributed to Sloan
in this instance.
The General Counsel argues, as the complaint also al-
leges, that Sloan threatened to deny employee-members
the position of header if they opposed the manner in
which Respondent operated its hiring hall. Predicate for
the argument and allegation is Clemmons' testimony that
in January 1987 he had another discussion with Sloan in
the union hall regarding the "petition " Sloan, according
to Clemmons, said he had heard "other fellows" say
Clemmois had "tricked" them about the "petition "
Clemmons replied that he was not hiding anything from
1B This petition was never produced by any party herein and the exact
language of the petition was never ascertained for the record nor were
the signers, other than Clemmons and one or two others identified A
similar petition was received in evidence addressed "To Whom It May
Concern," and asking for an immediate investigation concerning actions
taken by President Willie Sloan This petition signed by 36 employee-
members was forwarded on 22 September 1986 to Doug Ball, a trustee of
the GAT Fund with a cover letter signed by member David Robinson
complaining of the "44 Men put into gangs without the knowledge of the
Body "
Sloan and that he had told the signers of the petition that
a copy would be sent to Sloan so he would know whose
names were on it. Quoting Clemmons' testimony Sloan
responded:
So, he said, well, that wasn't what a man going to
be a leader or something like this in the Union, sup-
posed to be doing. That if you know, I disagree and
sign a petition, on something that Management and
Labor had agreed upon, then that might interfere
with me being a Header or something in the Union.
He was going to get like Landon Williams [a
former International or District Union official]
. .. . [A]nd if he had given anybody anything, and
they didn't support him or if he had anything to
give, he would not if they did not support him.
Sloan conceded in his testimony that he had had a dis-
cussion with Clemmons in the union hall regarding the
petition, but his version was different and he did not
specify the time of the discussion It is thus unclear
whether the two men were testifying about the same oc-
casion. However, Sloan did not specifically deny the re-
marks Clemmons attributed to him in mid-January. Ac-
cordingly, Clemmons is credited. Sloan's remarks in this
instance are substantially similar to the remarks Clem-
mons attributed to Sloan in August 1986 as related
above. Like the August remarks, I find Sloan's January
remarks to be threatening in nature, only more specific.
Here, Sloan clearly pointed out that by virtue of his peti-
tions or other opposition to Sloan's actions Clemmons
was putting himself at risk for any future consideration
as a header. I find therefore that Sloan's January remarks
to Clemmons violated Section 8(b)(1)(A) of the Act as
alleged. See Carpenters Local 25 (Mocon Corp.), supra,
270 NLRB at 628.
Two additional allegations of Section 8(b)(1)(A) of the
Act set forth in the complaint are based on actions taken
by Sloan against Clemmons. Thus, it is alleged that Re-
spondent through Sloan denied voting privileges for
Clemmons on 10 February 1987 because of his criticism
of union officials, and then on 9 June 1987 refused to
allow Clemmons to participate fully in a union meeting.
The evidence regarding the denial of voting privileges
is again based on Clemmons' testimony. Clemmons testi-
fied that in mid-February 1987 he learned that his name
was on a list of persons ineligible to vote in an upcoming
internal union election for an executive board member
and a business agent. On learning this Clemmons tele-
phoned Vice President Clayton Vaught and inquired
why he could not vote Vaught explained that Sloan had
told him to put Clemmons on the ineligible list because
Clemmons owed Respondent money in connection with
court costs which had been awarded Respondent stem-
ming from a legal action Clemmons had brought against
Respondent and lost on appeal in 1985 Clemmons re-
plied that he had previously shown to Sloan the canceled
check paying such costs to Clemmons' attorney, and
Sloan said he would "get with" Sloan again and talk to
him about the matter.
Clemmons explained in his testimony herein that in-
stead of forwarding the court costs to the Union or its
LONGSHOREMEN ILA LOCAL 1426 (WILMINGTON SHIPPING)
attorney in the matter he had forwarded the money to
his own attorney who apparently had never forwarded it
to the Union. On the Monday following his talk with
Vaught, Clemmons met with Sloan and complained that
he had shown Sloan the canceled check paying the costs
a year earlier. Clemmons' testimony is unclear regarding
any specific response by Sloan when Clemmons met
with Sloan about the denial of his right to vote. Clem-
mons testified he was not in fact allowed to vote. The
day following the meeting between Clemmons and
Sloan, Clemmons' attorney forwarded the money owed
the Union in court costs. Clemmons has voted on union
matters subsequent to the payment of the obligation
owed. Moreover, Clemmons admitted that under union
rules voting eligibility is conditioned on good standing
within'the Union which in turn requires being paid up on
dues. He was uncertain about the impact on voting eligi-
bility of not having meet other financial obligations to
the Union such as fines and court costs Nevertheless,
Clemmons pointed out that he had not previously been
denied his voting rights prior to February 1987 even
though the court costs obligation had still been outstand-
ing. In fact, Clemmons had run for an office during that
period. i 9 Sloan in his testimony did not testify regarding
the denial of voting rights to Clemmons. Vaught who
also testified did not address this issue either.
It is the General Counsel's theory that the refusal to
allow Clemmons to vote in the internal union election in
February was based not on Clemmons' failure to pay the
Union the money owed it but on Clemmons' involve-
ment in the petition protesting the increase in permanent
gang assignments. After all, the General Counsel claims,
Clemmons had shown Sloan a canceled check evidenc-
ing payments of cost to Clemmons' attorney and had
been allowed to vote in other subsequent elections. With
respect to the timing of the denial of voting rights to
Clemmons, the General Counsel theorizes that it was re-
sponsive to the filing of the original charge in Case 11-
CB-1520 on 27 January 1987 by David Robinson. I find
the General Counsel's theory and argument speculative
at best and unsubstantiated. Notwithstanding the fact that
Clemmons had paid his attorney and had in fact shown
Sloan the canceled check, the undisputed fact remains
that there was no evidence the Union had received pay-
ment prior to the February vote, and while Sloan was
aware of Clemmons' involvement with a petition protest-
ing the increase in the size of the gangs such knowledge
long predated the February denial of voting privileges to
Clemmons.20 Lastly, Clemmons was not named in the
charge in Case 11-CB-1520 and there was nothing in the
charge as filed showing that its subject was the dispute
over the permanent gang assignments, a dispute with
which Clemmons arguably could be associated. While
that aspect of the charge may have become clear to Re-
spondent and Sloan during the investigation of the case,
19 Also during this same period Sloan had recommended Clemmons
for a subheader position and Clemmons had obtained and retained that
position at all times thereafter
20 As earlier noted, the record does not reflect when Clemmons signed
such a petition and the only other petition on the subject of the gangs
which was not signed by Clemmons had been circulated in August and
September 1986
1161
there was no evidence Sloan was aware of it prior to the
time Clemmons was denied his voting rights. It was not
until 27 February that the charge was amended to clear-
ly show the gang increase issue, and even then any con-
nection between Clemmons and the charge was not
shown. Accordingly, I find no violation of the Act in
Respondent's denial of voting rights to Clemmons in
mid-February.
With respect to the complaint allegation that he was
not allowed to participate fully in a union meeting,
Clemmons testified that at a 9 June 1987 union meeting
he began speaking from the floor after he was recog-
nized by Sloan who was chairing the meeting. Before he
completed making his remarks Sloan told him his "2
minutes" were up. Clemmons protested that no one else
had been limited to 2 minutes. Sloan nevertheless replied,
according to Clemmons, that Clemmons' time was up.
Sloan then proceeded to recognize another member who
then stated he would yield his time to Clemmons. Sloan
disregarded the response and proceeded to recognize a
third member
Clemmons' testimony regarding the meeting was cor-
roborated by members Eugene Davis and John Newton.
Sloan in his testimony did not generally dispute Clem-
mons' version except that he did not refer to limiting
Clemmons to 2 minutes. He testified that he just thought
Clemmons had talked about 5 minutes and there were
others raising their hands to speak, so Sloan sounded his
gavel, told Clemmons he was out of order and to take a
seat. Thereafter, Sloan proceeded to recognize another
individual who then yielded to Clemmons. Since this had
never been done before Sloan refused to allow it and
proceeded to recognize someone else.
Respondent's recording secretary, Kenneth Grady,
also generally corroborated Clemmons' version of what
took place at the 9 June meeting but was unsure whether
it was Sloan or the parliamentarian who called time on
Clemmons. He testified it wasn't unusual for individuals
recognized by the chairman to talk over 2 minutes. Fur-
ther, he said it wasn't Sloan's regular practice to time
men. Grady also testified that Clemmons on 9 June had
had the floor twice before he was cut off by Sloan, and
was recognized by Sloan once afterwards and talked on
a different subject. Vice President Vaught likewise testi-
fied that Clemmons spoke again in the meeting after the
occasion when Sloan called time on him
Respondent's parliamentarian, Chester Wiggins, testify-
ing for Respondent, related that Clemmons had talked
several times from the floor on 9 June over and above
the other members without being specifically recognized
by Sloan. On the occasion when he was recognized,
Wiggins said Clemmons talked 3 or 4 minutes by Wig-
gins' estimation before Sloan told him his time was up
Clemmons, according to Wiggins who described Clem-
mons as belligerent and a man who "had to have his
way" whenever there was a controversy, continued to
protest. Other men had been "gaveled down" by Sloan
on other occasions according to Wiggins. While Wiggins
related that Respondent follows Roberts Rules of Order
at its meetings and although those rules allow persons
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
recognized from the floor to speak for 2 to 5 minutes the
"understood" limit at the meetings was 2 minutes.
The General Counsel argues that Clemmons was arbi-
trarily and discriminatorily limited in his remarks at the
union meeting because of his general opposition to Sloan,
that this action was part of a general harassment pattern
against Clemmons, and that such action therefore violat-
ed Section 8(b)(1)(A) of the Act. Respondent argues in
effect that Sloan as chairman of the meeting had the dis-
cretion to run it in an orderly fashion and that Clemmons
was not the object of arbitrary or discriminatory action.
It appears self-evident that the one who chairs or runs
a meeting must have authority to control the meeting to
prevent disorder and chaos. In the instant case what ap-
pears as uncontroverted is the fact that Clemmons spoke
on more than one occasion at the meeting and at' least
once after his time had been called. Having observed
Clemmons as a witness, I found him a somewhat excita-
ble individual, and find credible Wiggins' description of
him Since I find that Clemmons did speak after the oc-
casion when Sloan called time on him, I find that Sloan's
calling time on him did not preclude Clemmons' expres-
sion of views even assuming that such expressions on
whatever matter were a right protected under the Act.
Moreover, notwithstanding the evidence regarding the
relationship between Sloan and Clemmons, I am unper-
suaded that Sloan's calling time on Clemmons was based
on motivations stemming from that relationship. Had
Sloan intended to keep Clemmons from expressing his
views it is likely he would not have even granted him
the floor to speak to begin with, or further allowed him
to speak again after calling time on him. Accordingly,
under these circumstances, I find Respondent did not
violate Section 8(b)(1)(A) of the Act in limiting Clem-
mons' speaking on this one occasion
THE REMEDY
It having been found that Respondent through carpen-
ter header Davis breached its duty of fair representation
by selecting four employee-applicants for permanent
gang assignment on the arbitrary basis of request by their
relatives, it will be recommended that Respondent be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Notwithstanding the absence of any named alleged dis-
criminatees in the complaint in connection with the per-
manent gang assignments, the General Counsel urges a
backpay remedy in this case. Recognizing the difficulty
in establishing which individuals would have been
chosen for permanent gang assignments had Respondent
not breached its duty of fair representation, the General
Counsel suggests the hours worked in the industry since
1981 would be an appropriate objective standard for se-
lection for remedial purposes.2 i However, the total
hours worked has not been shown to be a factor in selec-
tion for past permanent gang assignments beyond their
grouping within a seniority classification Moreover, and
21 The record does contain evidence showing the total number of
hours worked since 1981 by those in the classification from which perma-
nent gang members involved in this case were selected
while the eligible employee-applicants who were not se-
lected for gang assignments on 6 August 1986 constituted
an identifiable group, it is by no means clear that all eli-
gible other than Briggs, a charging party herein, who
was not named as a discriminatee in the complaint, in
fact desired permanent gang assignment or were even
available for permanent gang assignment.22 Finally, it is
not at all clear that those arbitrarily selected by Davis
would not have been selected on the merit of their quali-
fications if Davis accorded appropriate consideration to
qualifications as required under the bargaining agreement
and seniority plan. In this regard, Davis testified that of
the six selections that he made for his carpenter gang,
three had prior carpenter experience. As already noted,
he had selected four on the basis of request by relatives.
One, at least, therefore, must have had prior carpenter
experience. Accordingly, and particularly because of the
absence of any discriminatees' named in the complaint, I
conclude that no backpay remedy for the violation found
herein with respect to the selection for permanent gang
positions would be appropriate. See Longshoremen ILA
Local 851, 194 NLRB 1027 (1972). See also Electrical
Workers IBEW Local 99 (Crawford Electric), 214 NLRB
723 (1974), where a breach of the union's duty of fair
representation was found without ordering backpay for
any discriminatees other than those named in the com-
plaint.
CONCLUSIONS OF LAW
1. Wilmington Shipping Company is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Respondent, International Longshoremen's As-
sociation, Local 1426, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent, by threatening employee-members that
their opposition to union leadership in the operation of
an exclusive hiring hall would meet with diminished op-
portunity for header positions and with other unspecified
reprisals, violated Section 8(b)(1)(A) of the Act.
4. Respondent, by choosing individuals for permanent
gang assignments on or about 6 August 1986 based on
unfair, arbitrary, and invidious considerations breached
its duty of fair representation and caused employers to
discriminate against unnamed individuals within the same
seniority classification and thereby violated Section
8(b)(1)(A) and (2) of the Act.
5. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
6. Respondent has not violated the Act in any other
manner alleged in the consolidated complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed23
22 Unlike the selections made during daily shapeups where presence of
the employee-applicant was necessary for selection, presence of the em-
ployee-applicant was apparently not required during the selection for per-
manent gang assignments
22 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Continued
LONGSHOREMEN ILA LOCAL 1426 (WILMINGTON SHIPPING) 1163
ORDER
The Respondent , International Longshoremen 's Asso-
ciation , Local 1426 , Wilmington , North Carolina , its offi-
cers, agents , and representatives, shall
1. Cease and desist from
(a) Threatening employee-members that their opposi-
tion to union leadership in the operation of an exclusive
hiring hall will meet with diminished opportunity for
header positions and with other unspecified reprisals.
(b) Choosing individuals for permanent gang assign-
ments based on unfair , arbitrary , and invidious consider-
ations thereby denying employment opportunities to
other qualified employee applications and users of the ex-
clusive hiring hall system.
(c) In any like or related manner restraining or coerc-
ing employee applicants or members of Respondent in
the exercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Select employee-applicants for permanent gang as-
signments on the basis of fair and objective criteria con-
sistent with the collective-bargaining agreement and se-
niority plan in effect with Wilmington Shipping Compa-
ny and North Carolina Shipping Association.
(b) Post at its main hall or office in Wilmington, North
Carolina, and its meeting place for members and users of
its exclusive hiring hall system , copies of the attached
notice marked "Appendix ." 24 Copies of the notice, on
forms provided by the Regional Director for Region 11,
after being signed by Respondent 's authorized represent-
ative, shall be posted by Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
members are customarily posted . Reasonable steps shall
be taken by Respondent to ensure that the notices are
not altered , defaced , or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
24 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur - the United States Court of Appeals Enforcing an Order of the National
poses Labor Relations Board "