International Longshoremen's Association, Local 28 (Ceres Gulf Inc.)

National Labor Relations Board - Board Decisions

Feb 20, 2018

366 NLRB No. 20 (N.L.R.B. 2018)

366 NLRB No. 20
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
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be included in the bound volumes.
International Longshoremen’s Association, Local 28
(Ceres Gulf, Inc.) and Donna Marie Mata. Cases
16–CB–181716 and 16–CB–194603
February 20, 2018
DECISION AND ORDER REMANDING
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND EMANUEL
On June 13, 2017, Administrative Law Judge Robert
A. Ringler issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The complaint alleges that the Respondent violated its
duty of fair representation to Charging Party Donna Mata
in violation of Section 8(b)(1)(A) of the Act by: (1) re-
fusing to refer Mata for training based on her sex; and (2)
soliciting her to withdraw her unfair labor practice
charge. The judge dismissed the complaint in its entire-
ty, largely because he credited the testimony of the Re-
spondent’s training coordinator, Tim Harris, over the
testimony of Mata. The judge gave several reasons for
his credibility findings, and concluded, “on the basis of
these several reasons, which in many cases suffice in
isolation, Harris has been credited.” The judge did not
identify which of the several reasons would have sufficed
in isolation.
In his exceptions and brief, the General Counsel ar-
gued that the judge’s decision should be reversed be-
cause his credibility determinations about Mata’s claims
were based on sex stereotypes and demonstrated bias.
The General Counsel also argued that the judge improp-
erly relied on language in the charge to discredit Mata.
We agree that the judge erred by relying in part on im-
proper bases in making his credibility determinations, but
rather than reverse the judge, we will vacate the judge’s
decision and remand to the chief administrative law
judge for reassignment to a different judge for a hearing
de novo. Such remands are plainly within the Board’s
authority and the Board has ordered such remands on a
number of occasions. See, e.g., Reading Anthracite Co.,
273 NLRB 1502, 1503 (1985); Dayton Power & Light
Co., 267 NLRB 202, 202–203 (1983); New York Times
Co., 265 NLRB 353, 353 (1982); Center for United La-
bor Action, 209 NLRB 814, 815 (1974).
In remanding the case to a new judge for rehearing, we
emphasize that this is an unusual case where the judge
relied on inappropriate bases to assess credibility and
intertwined those bases with other legitimate considera-
tions to such an extent that we are precluded from deter-
mining whether the judge’s credibility finding may be
adopted based on the legitimate considerations. We have
further determined that a rehearing will not be logistical-
ly impractical. The hearing was held less than a year
ago, lasted only 10-1/2 hours, and involved only a small
number of witnesses, so a rehearing will not involve the
expenditure of extraordinary resources by the agency or
the Respondent.
ORDER
IT IS ORDERED that the administrative law judge’s deci-
sion of June 13, 2017, be vacated.
IT IS FURTHER ORDERED that this case be remanded to
the chief administrative law judge for reassignment to a
different judge for a hearing de novo on the issues raised
by the allegations of the complaint.
IT IS FURTHER ORDERED that, upon conclusion of the
hearing, the administrative law judge shall prepare and
serve on the parties a decision containing findings of
fact, conclusions of law, and recommendations based on
the evidence received and that, following service of such
decision on the parties, the provisions of Section 102.46
of the Board’s Rules and Regulations shall be applicable.
Dated, Washington, D.C. February 20, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Laurie M. Duggan, Esq., for the General Counsel.
Bruce Johnson, Esq. (Berg, Plummer, Johnson & Raval, LLP)
and Eric Nelson, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This case
was heard in Houston, Texas, from April 3 to 4, 2017. The
complaint alleged, inter alia, that the International Longshore-
men’s Association, Local 28 (the Union or Respondent) violat-
ed Section 8(b)(1)(A) of the National Labor Relations Act (the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Act) by arbitrarily and discriminatorily failing to provide train-
ing to Donna Marie Mata because of her gender, and by solicit-
ing her to withdraw a connected unfair labor practice (ULP)
charge.
On the entire record, including my observation of the wit-
nesses’ demeanors, and after considering posthearing briefs, I
make the following
FINDINGS OF FACT1
I. JURISDICTION
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act. It represents employees employed by ste-
vedoring employers at the Houston Terminal, who are subject
to the Act (e.g., Ceres Gulf, Inc.), and members of the West
Gulf Maritime Association (WGMA), which is also subject to
the Act.2
II. ALLEGED UNFAIR LABOR PRACTICES
1. Union—generally
The Union and WGMA are parties to a collective-bargaining
agreement, which authorizes the Union to operate
an exclusive hiring hall at the Houston Terminal. (R. Exhs. 3–
4). The Union maintains a seniority roster, which is used to
determine stevedoring job referrals, training and other matters.
(R. Exh. 5.) The Union is led by: Larry Sopchak, president;
Jesse San Miguel, Jr., business agent and treasurer; Jesse San
Miguel, Sr., executive board member; and Tim Harris, business
agent, secretary–treasurer and training coordinator.
2. Union training program
As training coordinator, Harris refers interested employees to
WGMA’s stevedoring classes.3 He makes periodic announce-
ments at the union hall regarding such training, and then trans-
mits a roster to WGMA, which then conducts various training
classes.4 He explained that he uses an informal announcement
system because WGMA’s schedule frequently changes, and it
would be arduous to do otherwise.5 He averred that he is not
empowered to deny anyone training.
Patrick McKinney of Tri-Kin Enterprises provides training
for WGMA. He said that most courses have a classroom and
hands-on component. He related that the Union sends him a
proposed roster, which is reviewed and approved. Tri-Kin,
thereafter, assembles a class list, conducts the course, and
maintains completion records.
3. Mata’s employment history
Mata has been a union member since 2001. She generally

1 Unless otherwise stated, factual findings arise from joint exhibits,
stipulations and undisputed evidence.
2 WGMA represents its employer-members in labor relations mat-
ters with the Union.
3 Certain classes are prerequisites for particular work referrals.
4 WGMA offers classes in hazardous materials, longshore skills,
forklifting, toploading, heavy lifting, yard tractor, and crane operation.
It maintains a training handbook, which describes curricula and evalua-
tion criteria.
5 Training schedules are publically available on WGMA’s website;
Mata has previously accessed them. (Tr. 108.)
works as a truck driver.6
a. Union work referrals
Mata received union work referrals between March and No-
vember 2007. (R. Exhs. 6–7.) She then had a union employ-
ment break until April 2015. During this hiatus, she worked as
a truckdriver in Iraq for 3 years, and was also employed by
various nonunion entities. She then began receiving union
work referrals again in May 2015. Her union employment is, at
best, part time, inasmuch as she only averages less than
$10,000 annually in union referrals, which amounts to less than
400 of workhours per year. (R. Exh. 7.)
b. Training
Mata was referred to these WGMA classes:
MONTH COURSES
Apr.
2007
 yard tractor (classroom
and hands–on), forklift
(classroom)
Jan. 2008  lashing (classroom and
hands–on)
Apr.,
2010
 haz–mat (classroom)
Jun. 2015  longshore (classroom),
haz–mat (classroom),
yard tractor (classroom
and hands–on)
Aug.
2016
 ro–ro (classroom and
hands-on),7 heavy–lift
(classroom and
hands–on), forklift
(classroom and hands–
on)
Sep. 2016  ro–ro hands–on
Feb. 2017  yard tractor (classroom
and hands–on), forklift
(classroom)
(GC Exh. 6; R. Exh. 2.)
c. Alleged harassment by Harris regarding training
I. GENERAL COUNSEL’S STANCE
Mata averred that, from March to August 2016,8 she asked
Harris to place her in training classes about six times per
month. (Tr. 49.) She recalled him denying her requests and
responding that: she already had sufficient work opportunities
and did not require additional training; she did not need to be
trained to perform tough and grimy jobs; or her requested clas-

6 In this capacity, she transports shipping containers at the Houston
terminal.
7 “Ro–ro” stands for “roll–on, roll–off.”
8 All dates cited hereinafter refer to 2016, unless otherwise stated.
LONGSHOREMEN’S ASSN. LOCAL 28 (CERES GULF, INC.) 3
ses were already full.9 (Tr. 51–53.) She added that, when she
periodically stopped by Harris’ office to request training, he
closed his door, groped her, and propositioned her. She said
that she consistently rejected these advances. She estimated
that this scenario repeated about 10 times between 2010 and
2015.10 She said that her rebuffs during this period prompted
him to deny her WGMA training between March and August.11
She described these assaults in the following manner:
[A]s soon as I was ready to leave, he’d . . . grab on me and I
would tell him, “. . . never in a million years.” I’d push him
away and . . . walk out. And then I wouldn’t come back for a
while. And this is a never ending cycle
(Tr. 85.)
Mata stated that she complained to the Union in June, when
she informed Business Agent San Miguel Jr., who then con-
veyed her concerns to president Sopchak.
Mata then filed a ULP charge against the Union on August 5,
which alleged that:
Since the last six months, the . . . [Union] through … Harris,
has unlawfully refused to allow . . . Mata, to be placed on the
certification list . . . . [and] refer . . . Mata, to any jobs for un-
fair, arbitrary, and invidious considerations.12
(GC Exh. 1(a).)
II. UNION’S REPLY
Harris denied groping or propositioning her, or withholding
WGMA training. He noted that he sent an email that requested
extensive training for her on June 5, 2015 (i.e., after the alleged
harassment period), and that she then attended several classes at
that time. (R. Exhs. 2, 13.) He also recalled Mata asking for
additional training in passing at an October 2015 membership
meeting. He recollected telling her that the schedule was full
and asking her to remind him next month.13 See (R. Exh. 12.)
He also recalled her asking to take a forklift class in 2016, but,

9 She stated that, on one occasion, she witnessed him solicit a male
to take the same class that she had just asked to take. She offered a
poor explanation, however, of why she did not immediately confront
him about this anomaly.
10 In early 2017, she pressed criminal charges against him.
11 Michael Atwood, another Union member, related that between
March and August, he observed Mata and Harris at union hall. He said
that he observed Harris grant training to men during this period, which
was believable given that the Union’s seniority list is almost entirely
male. He then added, without substantiation, that he believed that Mata
did not receive training because she was female. This statement was
conclusory, based solely upon assumption, and has not been credited.
He then, somewhat contradictorily, stated that he, as a male, also had a
difficult time being referred to WGMA training by the Union. (Tr. 25–
26.) He also acknowledged that Harris awards jobs to women, if they
hold sufficient seniority and experience. (Tr. 29.) On the basis of these
inconsistencies, his testimony has not been afforded any weight.
12 Although Mata signed the charge and certified that it was “true to
the best of [her] . . . knowledge and belief,” her employment records
contrarily established that she was referred to several jobs during the
challenged period. (R. Exh. 7.)
13 It is noteworthy that, at the time of Mata’s October 2015 training
request, she had already completed a sizeable portion of then available
WGMA training. (R. Exh. 18.)
could not recall the status of this request.
III. CREDIBILITY RESOLUTION
Mata’s and Harris’ deeply conflicting testimonies warrant a
credibility resolution. Moreover, Mata testified that she sought
training about 36 times between March and August, Harris
groped and propositioned her 10 times between 2010 and 2015,
and that her rejection of Harris’ advances prompted him to
deny her training. Harris, on the other hand, denied touching or
propositioning her, and contended that he reasonably responded
to her training requests.
For several reasons, I credit Harris. First, and foremost, Ma-
ta was a highly uncooperative witness, who effortlessly an-
swered virtually all of the General Counsel’s direct examina-
tion queries, but then responded to equally simple cross-
examination questions with delays, pauses, additional ques-
tions, recollection issues, and reported confusion.14 These re-
peated stonewalling activities rendered her unreliable. Second,
the glaringly false statement in her ULP charge regarding Un-
ion work referrals further detracted from her credibility (i.e.
the August 5 ULP charge falsely stated that, “Tim Harris, has
unlawfully refused to . . . refer . . .] for unfair, arbitrary, and
invidious considerations,” even though she was repeatedly
referred to union jobs during this period).15 Third, the implau-
sibility of several key parts of her story further undercuts her
creditability. It is simply implausible that Mata, who appeared
to be a tough woman who performs stevedoring work on the
docks and previously drove a truck in Iraq, would have meekly
allowed Harris’ to harass and assault her a whopping 10 times,
without an utterance. It is even less plausible that she would
have tolerated such egregious misconduct to preserve a job that
only paid her less than $10,000 annually. (R. Exh. 7.) It is still
less plausible that a woman, who was empowered by having
two relatives holding influential union positions (e.g., San
Miguel Jr. and San Miguel Sr.),16 would have allowed Harris to
repeatedly violate her. It is also implausible that, if Harris
withheld training because she rejected his advances from 2010
to 2015, as she alleges, he would have then enrolled her for
training in June 2015 after her rejection. (R. Exh. 2.) It is also
implausible that Mata, who claims that she was too embar-
rassed to complain about sexual harassment, would have not
opted to address her training problems by solely complaining
about Harris’ other reportedly less embarrassing comments
(e.g., his alleged comment that, as a driver, she did not require
training, or that he did not want to train her to perform grimy
jobs).17 Fourth, Mata’s completely unsubstantiated claim that
Pat McKinney, a nonunion employee, was a co-conspirator
further undercuts her claims. (Tr. 104.) Finally, Harris was a

14 See, e.g., (Tr. 80–81, 83, 87, 93–94, 96, 104, 108, 116, 119, 121,
127–28, 130–31, 133–38.)
15 See supra fn. 12 and accompanying text.
16 Jesse San Miguel Sr. is married to her aunt; Jesse San Miguel Jr. is
her cousin through marriage. They could have clearly insulated Mata
against any possible retribution, if she had immediately complained.
17 Mata could have complained about these nonembarrassing mat-
ters, and received her desired training. Her unwillingness to take this
obvious course at the expense of enduring further sexual harassment is
highly dubious.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
solid, cooperative, and believable witness.
On the basis of these several reasons, which in many cases
suffice in isolation, Harris has been credited. I find, as a result,
that he did not grope, sexually harass or proposition Mata at
any time, prohibit her from being added to training certification
lists between March and August, bar her from receiving certifi-
cation training during this period, or otherwise discriminate
against her on the basis of her gender. I further find that, at all
relevant times, Harris reasonably granted Mata’s training re-
quests.
d. San Miguel Jr.’s alleged solicitation to withdraw the charge
I. GENERAL COUNSEL’S STANCE
Mata indicated that, on December 15, Union Business Agent
San Miguel Jr. solicited her to withdraw her pending ULP
charge, when he sent her this text, “[h]ey, have you gone down
to withdraw the charges at the labor board.” (GC Exh. 5.) She
added that he also inquired about her dropping the ULP charge
in February 2017, and claimed that, at that time, he withdrew a
union work referral, in order to coerce her withdrawal of her
ULP charge. (Tr. 73–74.)
II. UNION’S REPLY
Union President Larry Sopchak denied directing anyone to
solicit Mata to withdraw her ULP charge. Business Agent San
Miguel Jr. testified that he periodically sees Mata at family
gatherings. He adamantly denied soliciting her to withdraw her
ULP charges, promising her anything in exchange for such
withdrawal, or denying her benefits in order to coerce her with-
drawal. He stated that, once she reported Harris’ alleged har-
assment to him, he offered to let her request training from
someone other than Harris. He recalled discussing her ULP
charge with her in December. He stated that his text was not a
solicitation seeking her withdrawal, and was only a follow-up
inquiry regarding a matter that she raised with him.
III. CREDIBILITY RESOLUTION
For the reasons previously stated, I credit San Miguel Jr. As
noted, Mata was less than credible. In contrast, San Miguel Jr.
had a strong demeanor and was consistent. He was also cor-
roborated to some extent by Sopchak, who was a credible and
cooperative witness.
III. ANALYSIS
1. Training allegations18
The Union did not breach its duty of fair representation by
unlawfully withholding Mata’s training. In Vaca v. Sipes, 386
U.S. 171 (1967), the Supreme Court held that a union violates
its duty of fair representation, when it acts in a manner that is
“arbitrary, discriminatory, or in bad faith.” Id. at 207. In Air
Line Pilots v. O'Neill, 499 U.S. 65 (1991), the Supreme Court
added that “. . . a union's actions are arbitrary only if, in light
of the factual and legal landscape at the time of the union's
action, the union's behavior is so far outside a ‘wide range of
reasonableness’ . . . as to be irrational.” Id. at 67. Regarding

18 These allegations are listed under pars. 9–10, and 12–14 of the
complaint.
exclusive hiring halls, as is the case herein, the Board has held
as follows:
When it operates an exclusive hiring hall, a union has a duty
of fair representation to all applicants using the hall, whether
members or nonmembers. . . . As part of this duty, the union
must operate its exclusive hiring hall “in a fair and impartial
manner. This code of acceptable conduct necessarily extends
to the institution of any referral rules which . . . cannot be dis-
criminatory or arbitrary.”
IATSE Local 838 (Freeman Decorating Co.), 364 NLRB No.
81, slip op. at 4 (2016).
In the instant case, the General Counsel contended that Har-
ris repeatedly sexually harassed Mata, and withheld training
opportunities from her between March and August because she
failed to accept his advances. As noted, I found that these facts
were not established, and that Harris: never groped, sexually
harassed or propositioned her at any time; never prohibited her
from being added to training certification lists between March
and August; never barred her from receiving certification train-
ing during this period; and did not otherwise discriminate
against her on the basis of her gender during this period. It also
appears that she generally received training, in accordance with
her requests, and, in fact, repeatedly received training in a wide
subset of stevedoring specialties. Additionally, once she
lodged her complaint against Harris, the Union rationally re-
sponded by offering her a host of training opportunities, re-
mained impartial in its investigation of this matter, and erred on
the side of caution by directing her to request training from
someone other than Harris, irrespective of the complete absence
of any corroborating evidence of harassment. I find, as a result,
that the Union’s actions were nondiscriminatory, nonarbitrary,
conducted in good faith, and reasonable. In sum, the General
Counsel has failed to show that the Union breached its duty of
fair representation regarding Mata’s training requests.
2. Solicitation allegations19
As stated, I do not credit Mata’s claim that San Miguel, Jr.
solicited her to withdraw her ULP charges, or rescinded a work
referral in order to coerce such withdrawal. I credited San Mi-
guel Jr.’s general denial and testimony that his text was solely a
follow-up inquiry, which was eminently reasonable given that
Mata first approached him about Harris’ alleged misconduct.
The solicitation allegation, accordingly, also lacks merit.
CONCLUSIONS OF LAW
1. WGMA and its constituent members are employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and 7 of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union did not violate the Act in any manner alleged
in the complaint.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended20

19 These allegations are listed under pars. 11 and 14 of the complaint.
20 If no exceptions are filed as provided by §102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
LONGSHOREMEN’S ASSN. LOCAL 28 (CERES GULF, INC.) 5
ORDER
The complaint is dismissed in its entirety.
Dated Washington, D.C. June 13, 2017

Order shall, as provided in §102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.