ITO Corp.

National Labor Relations Board - Board Decisions

Dec 6, 1979

246 N.L.R.B. 810 (N.L.R.B. 1979)

DECISIONS OF: NATIONAL LABOR REL ATIONS BOARD)
ITO Corporation of Rhode Island, Inc. and James W.
Wesley, Jr.
International Longshoremen's Association, Local 1329
and James W. Wesley, Jr. Cases I ('A 14748. 1
C'B4095, and 1-CB-4157
December 6, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBE RS JNKINS
ANDI PNI1.()
On June 7, 1979, Administrative Law Judge Elbert
D. Gadsden issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the In-
ternational Longshoremen's Association, Local 1329,
hereinafter the Union, filed exceptions and support-
ing briefs. On October 17, 1979, the General Counsel
filed a motion to modify the Administrative aw
Judge's Decision, with respect to which ITO Corpora-
tion has filed an assent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified herein.
While we agree with the Administrative Law
Judge, for the reasons stated below, that the Union
violated Section 8(b)(1)(A) and (B) of the Act by
causing James W. Wesley's removal from the walking
foreman position, we do not adopt his finding that the
Union thereby also violated Section 8(b)(2). Further,
we adopt the Administrative Law Judge's finding that
the Union also violated Section 8(hb)(1)(A) and (2) of
the Act by causing Wesley not to be employed as a
relief winchman.
We ind merit in the General Counsel's exception
that the Administrative Law Judge inadvertently
failed to find that the Union also violated Section
8(b)(1)(A), as alleged, by refusing to allow union
member Welsey to bring his grievance before fellow
union members at a union meeting because he filed
charges under the Act. Although IT0 orporation,
hereinafter the Employer, has filed no exceptions. fbr
reasons stated below we shall reverse the Administra-
tive Law Judge's finding that the Employer violated
Section 8(a)(3) and (I) by demoting Wesley from his
position as walking foreman. We adopt, however, the
Administrative Law Judge's finding that the E.m-
plover violated the Act by acquiescing in the Union's
demand that it not hire Wesley as a relief winchman.'
Prior to the events herein Wesley was employed by
the Employer as a walking foreman, a supervisory
position. In this capacity he would direct a crew of
employees tas they unloaded cargo from ships, and
would hire and discharge employees. In the further-
ance of his duties, he also discussed grievances with
shop stewards in an eflbrt to reach the settlement of
such disputes. Accordingly, we find that Wesley,
while in the position of walking foreman, was one of
the Employer's "representatives for the purpose of
collective bargaining or the adjustment of grievances"
within the scope of Section 8(b)( I )(B).
As a result of' Weslex's decision to transfer or dis-
charge various persons under his supervision 2 he in-
curred the hostility of several members of the Union,
a view which was shared by the Union's president,
Raymond Silva. This hostility toward Wesley also de-
rived from his participation, as a member of the
Union, in membership meetings during which, ac-
cording to Silva's testimony, "he is constantly trying
to make motions and rules in the Union meetings that
pertain to the Company's benefit."'
In response to Wesley's activities, Silva arranged
for the reinstatement of the two fremen whom Wes-
ley had discharged, and generally informed the Em-
ployer that employees were having problems with
Wesley and that they did not want him on the job. In
subsequent negotiations for a revised bargaining
agreement, Silva also attempted to limit the authority
of walking foremen in this regard, because, in his
words:
. . . e wanted to participate in who the ('om-
panry was going to hire and who they was [sic]
going to fire when it got up to the supervisory
capacity.
On several occasions Silva also requested Wesley not
to attend union meetings, in order to prevent what
was viewed as his disruptive activity there. Wesley,
however, did not heed these requests and continued
In mnllditing the Administrative law Judge's I)ecislon as indicated
above. e note that several oI these modifications were also presented h the
General (ounsel In his mtiLn t moJlldi the Administrative l.aw Judge's
Decision. Our mdilications, hweer, as cplained below. are slely in re-
sponse It) the exceptions timel)s iled h the parties and are nt based on the
(eneral (unsel's mt ion
2 Along those individuals hom VWesle discharged ere to union
mcnhers who held the psitiion of hatch lrrcmann While the super'isor)
status, o Ihis posit in as noIt pecificall litigalled. they had the authority
under he collectie-hargaining agrecnemnt in ettcl at the time tIl their dis-
charge to hire crpl, fees, and it heretlie ppears that theN were supervisors
under Sec 2(11 )fI the Act
In carl l)cceinber 1977. Wesley Sia, an.id other union members were
drinking mi a local bar and arguing ahotil unspeciied unioin husiness. Iuring
this rglnicnl. Silva declared to WVesle that he would have him fired ithin
a eek. gave 20-1t I .idds. and said he isa so sure that he could get rid of
W esle\ that lie wis s dling to put tip his hank ;IcOLInti. his house. his car and
ans ther asset s lie had
246 NLRB No. 122
810
IIO (ORPOR II(ON
to attend and participate in union meetings. On
March 14, 1978., Wesley attended a union meetings
at which the procedure for unloading automobiles
from ships was discussed. When Wesley stated at this
meeting that some employees would take advantage
of the procedure, Silva told him. "You are a compan
man and you have no right at meetings. anyway."
After the meeting, Silva again spoke to Wesley and
told him. "You know, I got a wa of stopping you
from coming to union meetings."
On March 20, employees working under Wesley
were scheduled to unload cargo from on of the ships
in port. However, only I out of approximately 60 em-
ployees reported for work at the ship. Other employ-
ees who were scheduled to work were present in the
area, but they did not report after receiving word that
they were not to go to work. Although Silva was pre-
sent at the dock prior to the employees' reporting
time, he testified that he did not know who caused the
work stoppage. Shortly after the work stoppage be-
gan, however, he met with the Employer's general
manager, Leonard Stanton, and told him that the
men would not work for Wesley. At another meeting
later that day, he met again with Stanton and told
him the men objected to the way Wesley was han-
dling the hiring and firing of men and making
changes in the work gangs, and that Wesley "was
more or less trying to run the union."
On March 21 Silva called a special meeting of
union members at which the members voted not to
work for Wesley. The employees returned to work
later that day. apparently after the Union arranged
for a meeting on March 27 with the Employer's
higher officers. At this meeting Silva was the spokes-
man for the Union and he told the Employer's repre-
sentatives that the men would not work for Wesley.
The Employer's president, John Farrell. stated that
the Employer had no other choice if it wanted to con-
tinue business, and agreed to Wesley's removal as
walking foreman. Later that day Stanton, who testi-
fied Wesley had served him in a "highly satisfactory
manner," informed him of the Employer's decision.
As a result of Wesley's removal from the walking
foreman position, he was transferred into a perma-
nent work gang and was employed primarily as a
winchman. As a member of' this work gang he re-
mained employed by the Employer. but would also
work for other stevedore companies, evidently as a
substitute when his work gang was not scheduled to
work. This demotion caused him to lose certain em-
ployment opportunities.
Shortly after Wesley's demotion to winchman.
Stanton learned that there was a vacancy in a relief'
4 Unless ,otherwise stated all dates are 1978
5The Administrative I.aw Judge inadsertentl found that this meeting
occurred on Maw 14.
wvinchmlian position. a more desirable position than
that of' regular linchman. The evidence. however.
does not indicate whether this was a permanent or
telmporaar vacalnc . Stanton told Silva of this va-
can\ and inquired about filling it with Wesles, who
Silxa has admitted vwas a qualified relief winchman.
Silv a rejected the suggestion and stated that the
Union would decide who would be the relief winch-
man." Wesley wias not selected to till this opening. and
during the following several months prior to the hear-
ing Wesley was not selected to fill any such openings
in the Employer's work gangs. 'The Union. howe'er,
did refer Wesley on two occasions as a relief winch-
man to work on ships being unloaded b\ another em-
ployer's work gangs.
At a regular union meeting held on April 26. Wes-
ley attempted to bring before the union membership
the matter of his demotion from the walking foreman
position. While this attempt to raise the matter was
consistent with the Union's practice of' hearing such
grievances on an informal basis, Wesley was ruled out
of order and was prevented from presenting his inter-
nal union grievance. At that time. Silva told him that
the Union had already voted on the matter at the
lMarch 21 meeting,' that the National Labor Rela-
tions Board already had the case,' and "that whatever
would come up would sort of' put the Union in a had
situation." At the hearing, Silva testified that, had
Wesley not gone to the National L.abor Relations
Board first. he would have been allowed to present his
grievance to the membership. but wuith charges al-
ready filed, he did not want to prejudice himself or
the Union.
Analysis
In the complaint, the General Counsel has alleged
that the Union violated Section 8(b)( I )(B) b causing
or attempting to cause the Employer to discharge or
remove Wesley from his position as walking foreman,
and similarly acted to den, him reinstatement to such
position. The General Counsel did not allege any
other violations of the Act with respect to Wesle3's
removal from the walking foreman position. The Ad-
ministrative Law Judge, however. not only found the
8(b)(1)(B) violation, as alleged. but also found that
I he esidence shous that prior to Febhruar 1978 the mnploser uas ,,soel
responsible for filling the relief winchman position and w ould till openilngs
with the senior inchman from the gang where the relief s inchman opening
occurred Subsequent to that time. howeer. Respondents negotiated that the
nn would he the ole responsilhlity for filling all such acancies Sllsa
testified that he or other union officials would pick such replacement, out it
the pool of qualified inchmen No testimony wais presented to indicate the
criteria for selectlon from among this pool lf qualified emplosees
' Silva; had nformed Wesles of the March 21 meeting, but Wesley refused
to attend he e, dence also shous. however, that Silsa repeatedl tuold HWe-
le, not to attend union meetings.
Ihe nitial charge In this case ,as filed in April I I
I I
DE(CISIONS OF NATIONAL. LABOR REL.A(IONS BOARI)
the Union, by such conduct, violated Section
8(b)( )(A) and (2), and that the Employer was
thereby caused to discriminate against Wesley in vio-
lation of Section 8(a)(3) and (I) of the Act.
Under the facts set forth above, we have found that
Wesley's position as walking foreman was supervi-
sory, entailing duties directly related to the adjust-
ment of grievances, and that he was an employer rep-
resentative under Section 8(b)(I)(B). Silva's central
role as union president, in conducting a meeting at
which the employees voted to seek Wesley's discharge
and in telling the Employer's representatives that the
men would not work with Wesley, reflected the
Union's adverse attitude toward Wesley and was de-
signed to restrain and coerce the Employer to remove
him as walking foreman. Accordingly, we adopt the
Administrative Law Judge's finding that the Union
has violated Section 8(b)(1)(B) of the Act.
We further find that, in seeking his removal, Silva
was motivated not only by his disagreement with
Wesley's supervisory activities, but also by the "pro-
Company" positions Wesley had taken at union
meetings. Silva's hostile attitude toward members
who voiced such "pro-Company" positions was
clearly announced to union members generally when
he rebuked Wesley at the March 14 meeting by pub-
licly stating, "You are a company man and you have
no right at meetings, anyway." That this was a factor
in Silva's efforts to have Wesley removed from his
foreman position is particularly revealed by his com-
plaint to Stanton on March 20 that Wesley was
"more or less trying to run the union." Had Wesley
been an employee at the time of his discharge, the
additional violations found by the Administrative
Law Judge would have been supported by the evi-
dence. However, as Wesley's removal was from a su-
pervisory position, he was not discriminated against
as an employee. 9 Accordingly, the Administrative
Law Judge incorrectly found that Respondents vio-
lated Sections 8(b)(2) and 8(a)(3) and (I) in this re-
gard. However, as the Union also sought to retaliate
against Wesley because of his "pro-Company" posi-
tions at union meetings, activities which are otherwise
protected under Section 7 of the Act (and other em-
ployees were aware of Silva's hostility toward such
activity), it follows that Wesley's demotion caused
other nonsupervisory employees to fear similar retali-
ation for "pro-Company" Section 7 activity. In view
of this analysis, we agree with the Administrative
Law Judge's finding that the Union independently
A tlberici Fruin-C'olnon 226 NLRB 1315 (1976). We also find no cvidence
ito support the Administrative l.aw Judge's conclusion that the ni n Lon-
tinually objected to the Employer reinstating Wesley as walking loretman.
The ecord does not show that Wesley or the trmployer ever sought his
reinstatement as walking foreman. and the Union neser had sccat Ito
expressly resist such efforts.
violated Section 8(b)( 1 )(A) in seeking Wesley's demo-
tion.' 0
Subsequent to Wesley's demotion, which thereafter
resulted in his transfer to the employee position of
winchman on a permanent work gang, the Employer
sought to have the Union appoint Wesley to a vacant
relief' winchman position, which was a preferred em-
ployee position. Although the record is unclear
whether Wesley was active as a winchman prior to
the attempt to have him appointed to the relief
winchman position, we nevertheless find that Wesley
was an "employee" with respect to his referral to the
relief winchman position.'' As it is clear from the rec-
ord that the Union's hostility toward Wesley's activi-
ties at union meetings carried over to and influenced
its adamant refusal to appoint him relief winchman, a
position for which he was qualified, the Administra-
tive Law Judge correctly found that the Union vio-
lated Section 8(b)(1)(A) and 8(b)(2), 12 and that the
Employer by acquiescing in the Union's demands
violated Section 8(a)(3) and (I ).'3
Finally, we agree with the Administrative Law
Judge that the Union violated Section 8(b)(1)(A), as
alleged, by refusing to allow Wesley to bring the mat-
ter of his removal as walking foreman before union
membership on April 26 in accordance with the
Union's established informal grievance procedure. At
the time of this meeting, Wesley had been engaged by
the Employer as a winchman and an employee for
several weeks, and he was undoubtedly an employee
when he sought to raise his grievance at the meeting.
By ruling this grievance out of order and by admit-
ting that Wesley's grievance would have been allowed
to be presented had he not filed charges with the
Board, the Union has restrained and coerced Wesley
with respect to his Section 7 right to file charges with
the National Labor Relations Board.' 4 In reaching
this conclusion, we reject the Union's contention that
it was privileged to disallow the grievance on the
ground that it sought to avoid prejudicing itself' be-
fore the Board. The Union. having established a
grievance procedure for the resolution of disputes be-
"I! Ihed
"See. generally. Phelp.s Dodge (Crporaiion . N I. RB.. 313 US. 177
(1941): see alsl Briggs Manui'ciluring (mpam., 75 N.RB 569. 572 (1947).
q 1ol al Union Vo, 12/. United Assx iation rcf Journe men and Apprentlces
of the Plumbing and Pipefitling Indwt vri M J Dvle. Inc.). 223 NLRB 1250.
1254 19761. In the absence of esvidence that the Utnion utilized any objective
criteria in selecting relief iinhmen frolrn the pl of unit members qualified
for such vacancies. the [nion has engaged in vilatise conduct as found
ablec independent of ian showing of hostility toward Wesley stemming
from his union activities. See .o,/l Union NX0 1 74. Iniernatrnal Broiherhood
o(/ ''aent1ers. ( hauuflreur, [I airelhsclsnne,i oand Ielpers ol America. Independent
(Torien HBecrsiges. In, . 226 NI RB 69). 700) 1
9 7
6).
" I tilit, and Indutrial ( nrm, im.. (rnpanr,. 214 NRB 153, 156
(1974)
4 (Graph .4rt s Ilcrnair,mi tnion 9: B (I lli1am l Printing ( oempanl, . 235
NlRB 1153 (1978.
812
I I() (COR PORATION
tween it and employee members may not bar em-
ployee members from utilizing this procedure because
they have filed a charge with the Board. By making
access to the grievance procedure contingent on not
filing a charge with the Board, the Union has acted to
restrict free access to the Board's procedures for the
protection of public, as well as private. rights, a re-
striction which we view with the utmost concern.
C(()N(CI SIONS ()OI; I.A\
1. ITO Corporation of Rhode Island, Inc., the Re-
spondent Employer, is an employer engaged in corm-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. International Longshoremen's Association, o-
cal 1329, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By demanding that Respondent Employer re-
move James Wesley from the position of walking
foreman before its employees would return to work.
thereby causing his removal from that position, Re-
spondent Union restrained and coerced Respondent
Employer in the exercise of its right to select its repre-
sentatives for the purposes of collective bargaining or
the adjustment of grievances, in violation of Section
8(b)(1)(B) of the Act. By such conduct. Respondent
Union also restrained and coerced employees in the
exercise of their rights guaranteed in Section 7 of the
Act, in violation of Section 8(b)( I )(A) of the Act.
4. By failing and refusing to appoint James Wesley
as relief winchman, and by causing Respondent Em-
ployer not to employ James Wesley as a relief winch-
man in violation of Section 8(a)(3) of the Act, Re-
spondent Union violated Section 8(b)( 1 )(A) and (2) of
the Act.
5. By acquiescing in Respondent Union's demand
that James Wesley not be appointed relief winchman,
thereby discriminating against him in the tenure and
terms and conditions of his employment, Respondent
Employer violated Section 8(a)(3) and ( 1) of the Act.
6. By refusing to permit James Wesley to bring the
matter of his demotion from the position of walking
foreman before the union membership in accordance
with its informal grievance procedure because he filed
unfair labor practice charges with the Board, Respon-
dent Union violated Section 8(b)(I)(A) of the Act.
7. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
hitIi REMEDY
Having found that Respondent Union has engaged
in certain unfair labor practices within the meaning
of Section 8(b)(I)(A) and (B) and Section 8(b)(2) of
the Act, and that Respondent Employer has engaged
in certain unfair labor practices within the meaning
of Section 8(a)( I) and (3) of the Act, they shall be
ordered to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act.
tlaving found that Respondent Union was solely
responsible for violative conduct in seeking and oh-
taining James Wesley's removal from the walking
foreman position, Respondent Ulnion shall be ordered
to notifyl Wesley and the mplover, in writing, that it
does not object to Wesley's reinstatement as walking
foreman or in any other supervisors position, and
that it will not coerce or restrain the Employer to
remove him from such position. Respondent nion
shall also be ordered to make \Wesley whole for any
loss of earnins he mav have suffered solely by reason
of his unlawful removal from the walking foreman
position." l laving found that Respondent Emplyer
did not violate Section 8(a)( ) and (3) of the Act with
respect solely to Wesley's demotion, we shall not or-
der Respondent Employer to offer Wesley immediate
reinstatement to his former job. We note, however.
that the Elmployer's general manager, Stanton, testi-
fied that the Employer would reemploy Wesley as
walking foreman if the Union did not object.
Ilaving also found that Respondent Union and Re-
spondent Employer violated the Act with respect to
the refusal to place Wesley in the vacant relief winch-
man position, we shall order that Respondent Union
notify Respondent Employer and James Wesley, in
writing, that it has no objection to his referral for hire
as an employee, and that it shall refer him to the first
available relief winchman position with Respondent
Employer which Wesley requests. Respondent Union
and Respondent Employer shall also be ordered
jointly and severally to make Wesley whole for any
loss of earnings he may have suffered as a result of
the failure to appoint him to the relief winchman po-
sition, with Respondent Union being primarily liable
for the backpay."'
For the reasons stated in Hickmott Fods. Inc., 242
NLRB 1357 (1979)., we shall order both Respondents
to cease and desist in any like or related manner from
interfering with, restraining, or coercing the Employ-
er's employees, as stated below, in the exercise of the
rights guaranteed them by Section 7 of the Act.
' Backpa shall he computed in the manner set forth in W1 IB1,'lwrr
('onynam. 90 NLRB 289 1950), and interest thereon as set forth in ,tr,dla
Steel (rporation,. 231 Nl RB 651 (19771 (Sec. generall I Plumhin,,
/Hearin (Co. 138 NRB 716 (1962).)
'" See .4 1bhr..iFuin ( n,,t 226 NI RB 1315 at In I1 See In It , rvlpra.
ior the colnputatlon of hackpa rhljaint and several hackpi\ blitl mlay
Oerlap to sme etent the hackpa, hah I lity ot Respondent I non tlr its
unla, Ifuti participation n ,cslc's denm tion trom the alkilg ;foreman psi.-
tion
813
)DF ('ISIONS OF NA'IIONAI LABOR RI.A I IONS BOARDI
ORDER
Pursuant to Section 10(c) of the National abor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that:
A. Respondent TO Corporation of Rhode Island,
Inc., Providence, Rhode Island, its officers, agents.
successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminatorily acceding to Respondent
Union's demands that it not appoint James Wesley to
the position of relief winchman.
(b) In any like or related manner interfering with.
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Jointly and severally, with Respondent Union,
make James Wesley whole for any loss of earnings
suffered by reason of his failure to be appointed relief
winchman, in the manner described in "The Rem-
edy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records.
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of' this Order.
(c) Post at Respondent Employer's office and place
of business located at Municipal Dock, Fields Point,
Providence, Rhode Island, copies of the attached no-
tice marked "Appendix."' 7 Copies of said notice, on
forms provided by the Regional Director for Region
I, after being duly signed by Respondent Employer's
authorized representative, shall be posted by it imme-
diately upon receipt thereof, and be maintained by
Respondent Employer for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent Em-
ployer to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region I, in
writing, within 20 days from the date of this Order,
what steps the Respondent Employer has taken to
comply herewith.
B. Respondent International Longshoremen's As-
sociation, Local 1329, its officers, agents, and repre-
sentatives, shall:
I. Cease and desist from:
(a) Coercing or restraining Respondent Employer
? In the event that this Order is enforced by a Judgment of a Uniled
States Court of Appeals, the words in the notice reading "Posted by Order of
the National abor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
to remove James Wesley from the position of walking
foreman.
(b) In any like or related manner restraining or co-
ercing Respondent Employer or any other employer
in the selection of its representatives for the purposes
of collective bargaining or the adjustment of griev-
ances.
(c) Causing or attempting to cause Respondent
Employer to discriminate against James Wesley as an
employee in violation of Section 8(a)(3) of the Act.
(d) Restraining or coercing James Wesley because
of his participation in union meetings.
(e) Refusing to allow James Wesley to present a
grievance at a union meeting because he filed unfair
labor practice charges with the National .abor Rela-
tions Board.
(f) In any like or related manner restraining or co-
ercing members in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Immediately notify James Wesley and Respon-
dent Employer, in writing, that the Union has no ob-
jection to the reemployment of James Wesley as
walking floreman or in any other supervisory or em-
ployee position, and that it will not restrain or coerce
said employer to remove him from such position.
(b) Refer James Wesley to the first available relief
winchman position which he requests with Respon-
dent Employer.
(c) Make James Wesley whole in the manner set
forth in "The Remedy."
(d) Post at its business offices, meeting halls, and
all other places where notices to members are custom-
arily posted copies of the attached notice marked
"Appendix B."' 8 Copies of said notice, on forms pro-
vided by the Regional Director for Region I, after
being duly signed by Respondent Union's authorized
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by Respondent
Union for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall
be taken by Respondent Union to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Mail to the Regional Director for Region I ad-
ditional copies of the attached notice marked "Ap-
pendix B" for posting by Respondent Employer.
(f) Notily the Regional Director for Region , in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to com-
ply herewith.
8s See fn 17. upra
X14
ITO (ORPORATION
APPENDIX A
No I(CE To EMPI.OYEES
POSnI) BY ORI)ER OF liII:
NATIONAI. LABOR REATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, as amended, and has ordered us to
post this notice. We intend to carry out the Order of
the Board and abide by the following:
WE wnll. NOT discriminatorily comply with
the restraining and coercive demands of the In-
ternational Longshoremen's Association, Local
1329, or any other labor organization, by deny-
ing James Wesley employment as a relief winch-
man.
WE WILt., jointly and severally, with Respon-
dent Local 1329, make James Wesley whole for
any loss of earnings suffered by reason of our
discrimination against him, with interest.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act,
except to the extent such rights may be affected
by lawful agreements in accord with Section
8(a)(3) of the Act.
All our employees are free to become, remain. or
refuse to become or remain, members of said Union.
or any other labor organization, except to the extent
that such rights may be affected by lawful agreements
in accord with Section 8(a)(3) of the Act.
ITO CORPORATION OF RHODE ISLAND, INC.
APPENDIX B
NOTIC(E T EMPLOYEES AND MEMBIERS
POSTED BY ORDER OF IHE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, as amended, and has ordered us to
post this notice. We intend to carry out the Order of
the Board and abide by the following:
WE WILL NOI coerce or restrain ITO Corpora-
tion of Rhode Island, Inc., to remove James
Wesley as walking foreman.
WE WILL NO1 in any like or related manner
restrain or coerce ITO Corporation or any other
employer in the selection of its representatives
for the purposes of collective bargaining or the
adjustment of grievances.
WE WVILL. NOT cause or attempt to cause ITO
Corporation to discriminate against James Wes-
ley as an employee for the position of relief
winchman.
WE WILL NOT restrain or coerce James Wesley
or any other employee because of his participa-
tion in union meetings.
WE WILL NOI refuse to allow James Wesley to
present grievances at union meetings because he
filed unfair labor practice charges with the Na-
tional Labor Relations Board.
WE WILL NOT object to ITO Corporation rein-
stating James Wesley as walking foreman, or em-
ploying him as relief winchman.
WE WILL Nor in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them in Section 7 of the
Act.
WE WILL refer James Wesley to the first avail-
able relief winchman position with ITO Corpo-
ration.
WE WILL, jointly and severally, with ITO Cor-
poration, make James Wesley whole for any loss
of earnings suffered by reason of the discrimina-
tory failure to employ him as relief winchman,
with interest.
WE wlLt, make James Wesley whole for any
additional loss of earnings, suffered by reason of
his removal from the walking foreman position,
with interest.
All our members are free to become and remain
members, and to participate in meetings, or refuse to
become or remain members, and participate in meet-
ings, or become and remain staff employees of ITO
Corporation or any other employer, except to the ex-
tent that such rights may be affected by lawful agree-
ments in accord with Section 8(a)(3) of the Act.
INTERNATIONAL LON;SIOREI:N's Asso(i-
ATION, LOCAI. 1329
DECISION
SIATI.MFNI ()F -IHE CAS.
E.BRI D. GADSDEN. Administrative Law Judge: Upon
charges of unfair labor practices filed in Case I C13 4095
on April 11. 1978. in Case I-CB4157 on MaN 30, 1978.
and amended on July 20. 1978. respectively. b James W.
Wesley, Jr., herein called Wesley or the Charging Party.
against International Longshoremen's Association. Local
1329. herein called Respondent Union; and in Case I CA
14748 filed on July 26. 1978, by James W. \Wesley. Jr.,
against International Terminal Operator ITO Corporation
of Rhode Island. Inc.). herein called Respondent tlmploxer.
a complaint was issued on April 25. 1978. amended on JulS
815
I)tll'ISIONS ()I NA IIONAL IlABOR RELAIIONS BOAR)
24. 1978. and consolidated for hearing on September I.
1978. by the Regional Director for Region I, on behalf of
the General Counsel.
In substance the amended and consolidated complaints
allege that Respondent Union caused or attempted to cause
Respondent Employer to discharge or remove the Charging
Party from his position as walking foreman: that Respon-
dent Union effectuated said discharge or removal by direct-
ing and/or engaging in a refusal to carry out the work over
which the discharged or removed employee was supervisor:
that Respondent Employer did discharge or remove said
employee from his position of walking foreman; that Re-
spondent Union caused or attempted to cause Respondent
Employer not to employ said employee as relief winchman:
that Respondent Union caused and continues to cause Re-
spondent Employer to refuse to reinstate said employee to
his former position as walking foreman or the equivalent
thereof; that as of the date of' this hearing Respondent Em-
ployer has failed to reemploy said employee as a relief
winchman, because such discharge or removal and failure
to employ said employee were demanded by Respondent
Union; and that Respondent Union prevented said em-
ployee from bringing his discharge or removal as a walking
foreman before the union membership for the reasons that
he filed charges and/or gave testimony under the Act.
By the aforedescribed conduct, the complaint further al-
leges (pars. 15. 16, 18. and 19) that Respondent Union
caused or attempted to cause the restraint or coercion of an
employer in the selection of his representative for the pur-
poses of collective bargaining or the adjustment of griev-
ances, in violation of Section 8(b)(1)(B) of the Act; that by
such conduct therein described (pars. 22 and 23). Respon-
dent Employer restrained and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act, and
thereby did engage in unfair labor practices affecting com-
merce within the meaning of Section 8(b)(1)(A) of the Act.
and that by the above-described acts Respondent Union
did cause or attempted to cause an employer to discrimi-
nate against his employees in violation of Section 8(a)(3) of
the Act, and consequently did engage in unfair labor prac-
tices affecting commerce within the meaning of Section
8(b)(2) of the Act, and that by all these acts herein above
described (pars. 17 amended and 20) Respondent Employer
did discriminate and is discriminating in regard to hire or
tenure or terms of conditions of employment. in violation of
Section 8(a)(1) and (3) of the Act.
Respondent Union filed an answer on May 4. 1978, and
an amended answer on July 28, 1978, denying that it has
engaged in any unfair labor practices as alleged in the com-
plaint. Respondent Employer filed an answer on September
13, 1978, denying that it has engaged in any unfair labor
practices as alleged in the complaint.
The hearing in the above matter was held before me at
Boston, Massachusetts, on September 13 and 14, 1978.
Briefs have been received from counsel for the General
Counsel, counsel for Respondent Union, and counsel for
Respondent Employer, which have been carefully consid-
ered.
Upon the entire record in this case and from nim observa-
tion of the witnesses, I hereby make the following:
I:INI)IN(;S ()1 A( I
1. JI RISI) I I(ON
Respondent Employer is now, and has been at all times
material herein, a corporation organized under and existing
by virtue of the laws of the State of Rhode Island. Respon-
dent Employer maintains an office and place of business at
Municipal Dock, Fields Point. in the city of' Providence. in
the State of Rhode Island (herein called the dock), and is
now and continuously has been engaged at said dock in the
distribution of numerous materials.
In the course and conduct of its business operations dur-
ing the past 12 months, which is a representative period,
Respondent caused at all times material herein large quan-
tities of' materials to be purchased and transported in inter-
state commerce from and through various States of' the
United States other than the State of Rhode Island and
foreign countries, valued in excess of $50,000. and during
said period caused substantial quantities of materials val-
ued in excess of $50,000 to be sold and transported from the
dock in interstate commerce and foreign commerce to for-
eign countries and States of the United States other than
the State of Rhode Island.
The complaint alleges. Respondent Employer admits,
and I find that Respondent Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
Ii. 1'111 I.ABOR OR(OANI/ZAlI)N IN\V()ILV'il)
The complaint alleges. Respondent Union admits, and I
find that International I.ongshoremen's Association Local
1329. herein called the Union, is. and has been at all times
material herein. a labor organization within the meaning of
Section 2(5) of the Act.
111. iL Al L.i (l:l) Ni AIR ABOR PRA('II('IS
The record shows that Respondent Employer, at its office
and place of' business at Municipal Dock, Fields Point,
Providence, Rhode Island. is engaged in the distribution of
numerous materials to and from its dock.
The complaint alleges and the parties stipulated that at
all times material herein the following named persons occu-
pied positions set opposite their respective names, and have
been and are now agents of Respondent Employer, acting
on its behalf' within the meaning of Section 2(13) of the
Act: John Farrell president, ITO; Arthur Boyle vice
president of' out-ports; Robert Groom captain and vice
president of ITO: and eonard Stanton general manager
of ITO.
The undisputed and credited testimony established that.
at all times material herein, the following named persons
occupied positions set opposite their respective names, and
have been and are now agents of Respondent Union. acting
on its behalf; within the meaning of Section 2(13) of the
Act: Raymond Silva president: Antone Soares record-
ing secretary; Daniel Joseph, Jr.. Joaquin Gomes, and Fred
Brown shop stewards
The complaint further alleges and the answer further ad-
mits that all employees employed by Respondent Employer
performing work pertaining to the rigging of ships, the coal-
816
11O (CORPORA'IION
ing of the same, the loading and unloading of all cargos.
including mail, ship's stores and baggage. and the handling
of lines in connection with the docking and undocking lof
ships in the port f' Providence. Rhode Island, and vicinitN,
constitute a unit appropriate for the purpose of' collective
bargaining within the meaning of Section 9(h) of the /Act.
The record further shows that. at ll times material
herein, Respondent Union has been the representative fbr
the purposes of collective bargaining of a majority of the
employees performing the wxork hereinbefore described and.
by virtue of Section 9 (a ) of the Act, has been and is nosw the
exclusive representative of all the employees performinlg
such work for the purposes of collective bargaining in re-
spect to wages, hours, and working conditions. Also, the
record shows that Respondent Union is a party to a collec-
tive-bargaining agreement with the Rhode Island Shipping
Association, Inc., which agreement expired September 30.
1977, and that Respondent Employer is one of the emplo -
ers comprising the Rhode Island Shipping Association.
Inc.'
A. Succcsivc (oller tiv Bargoliing anid Agrc'elilis
Between Local 1329) anl the 70 ('oporitio, lnd,1 l. tion,
Allegedlv Taken Pursuant to Such Agreements
Rqavmond Jolthn Silla. for 5 years president of L.ocal 1329.
International Longshoremen's Association. testified that.
when he last ran for office in 1974 or 1975. Arthur Soares
ran against him. lie said most of the issues during that
election campaign concerned equal opportunity for work
for all employees, since a certain percentage of' the Union
was getting all the work. lie advocated rotation of all scrap
iron work among all union members, although one particu-
lar group had been getting it in the past. Other issues con-
cerned working conditions affecting the longshoremen in
the process of loading and unloading ships.
Silva said the Rhode Island Shipping Association is an
association of companies with which the stevedores or long-
shoremen have contracted for work. The Union (Local
1329) has had successive contracts with them and said con-
tracts have been amended. (See G.C. Exhs. 2 and 5. the
working agreement dated October 1 1971, to September 30.
1974; G.C. Exh. 6 working agreement dated October I.
1974, to September 30. 1977; and G.C. Exh. 4 an amend-
ment to G.C. Exh. 6.)
Silva points out that the staff positions in the last contract
included "walking foremen," which are general foremen of
the shop, each of whom hires and fires employees.
Silva further testified, in response to questions pursuant
to Section 611 (c) of the Federal Rules of Evidence, that if
a particular union member has a grievance he may follow
the grievance procedure outlined as follows: First. he may
bring it to the union meeting or to the membership. Second,
he may go to the executive board and. if still not satisfied,
thirdly, he can appeal that decision to the Atlantic Coast
District; if' not satisfied. he can thereafter appeal to the
International Longshoremen's Association. Finally, if the
grievant is still unsatisfied he may then exercise his rights in
any administrative or judicial forum.
i The facts set forth aove are undisputed nti re not in confllct in the
record.
Silva also testified that in the prior contract. Ahich ex-
pired September 30. 1977. staff positions were not listed its
supervisors, but in the current provisional agreement. the
"walking f oremen" and the "dock hatch foiremen" are listed
as supervisors: and he said that James Wesle, having been
a w, alking foreman. was in fact a conipan man. Under the
prior contract, Silva said, walking dock foremen, relief men.
and gear men were supervisors. Hie said there were disputes
anlong the men L;s to who gets or controls certain jobs.
Since the September 30. 1977. contract expired. the par-
ties ha e come to an agreement on and implemented cer-
tain prot iSions tow lards the conmpletion of a nesA contract.
One of the provisions of the provisional agreement provides
that, when stafl positions are filled, the l inion and lmalnage-
ment will discuss the matter and jointly mke the selecl n1
lie said, under the old contract, the (ompan\ did not check
with the Uinion on the selection of stall positionis but had
and exercised exclusive authorit to make the selection.
I nler the pro isional agreement heretofore described. the
(' onIp;In has in f'1ct discussed the selection of' staff posi-
tions sith the nion (himself) prior to selection.
Ahe [)emotion of J;imes Weslex From the Position of
Walking Foremtin
Rarotmond Silha further testified that (;eneral Counsel's
txhibit 8 shows that James Wesley was first alking fore-
man for NA(CIREMA in 1975. Wesle? was demoted from
the position of wealking foreman and replaced by ITO (or-
poration on March 23 or 24. 1978. Thereafter. James Wes-
leN became a hull operator or senior winchman. Wesley is a
winchman on a gang on his regular job with other compa-
nies and he has tlop seniority. Wesles was walking foreman
for 0) prior to the expiration of the last contract on Sep-
tember 30, 1977. After his demotion in March 1978, Wesley
automatically became relief man. However, while Wesley
was walking foreman prior to the expiration of the old con-
tract on September 30. 1977, he (Wesley) fired Arthur
Soares in August 1977 and replaced him with Simon An-
drade. Sil; a said he was informed of Soares' discharge in a
letter from ITO dated October 3, 1977. He said it was the
first time he had ever known a hatch foreman to be fired on
the dock and he tried to have Soares reinstated ti> talking to
Stanton, the general manager of ITO Corporation. Silva said
the Union was opposed to Soares' being fired and to other
Wesley firings or actions, but Wesley's firing of Soares
stood until October I, 1977, after the expiration of the Sep-
tember 30, 1977, contract. Silva defeated Wesley's choice.
Barboza, for the job and hired a Mr. Brown.
Silva also said Wesley fired John Enis in November 1977,
but that both Soares and Enis regained their jobs in Octo-
ber or November 1977. after the prior contract expired on
September 30, 1977. Silva said he had them reinstated to
their positions.
Since Wesley's termination as walking foreman Silsa
said he and the vice president, Barry O'Connor the shop
stesward of the Union, and Shop Steward Jack Gomes stew-
ard for John J. Ore Company, have been doing the hiring of
relief men pursuant to the new provisional agreement. Silva
admitted that neither he nor any of the other persons with
hiring authority had hired WesleN its a relief man for 110)
since Wesley's discharge as walking foreman, Sii'a also ac-
817
[)l(ISIONS OF NAIIO()NAI. IABOR RI.Al I()NS B()ARI)
knowi/iedged laihe pa w practice wai that the Union and Ihc
(lompanl wouhll dlow ic' ex'pired CnIrac l',i un the new cln-
trclcl '1l'.' asigLned.
When Silva wias further interrogated. pursuant to Section
61 Ic) of the ederal Rules of Evidence, about the dis-
charge of Wesley. he testified that he Aas told by General
Manager Stanton (ofi 11() that Wesle had resigned. lle
also said he ias not surprised that Wesle' had resigned and
he did not ask Wesley whv he had resigned.
On March 20. 1978. Silva sid there was a work stoppage
by the men on an ITO vessel (the t.'a crn Madl) and tile
men did not go aboard the ship. tie continued to testil as
follows:
Q. Why didn't the men go on the ship?
A. From what I fbund out, front whiat I understand
it was because of difliculties that they was having with
Mr. Wesles over thile past ear or so.
Q. TFhe were ha\sing difficulties fr the last car. is
that our testillon!?
A. ILast clear or so. year, ear and a half'.
Q. You folund out about those difficulties on that
Monday ?
A. No. no. I had lfound out about these difficulties
and brought it to the attentionl of i () ('ompan! wa;
belore that time.
JU.It)(; (iGAt)SI N: On more thanl onll occasion?
Tilnt WINIss: Yes, sir.
Jt l)(i;l (il,)sllsN: When you sa difficulties, are ou
talking about difficulties arising out of Mr. Wesle's
supervisory or supervision of these men?
Tll WllNl: ss: Yes, sir.
JIl)(;l (Xl)st)l: As a walking foreman?
TIll WIl ISS: Yes, sir.
When asked what men had difficulties with James Wes-
ley's supervision, Silva said, Arthur Soares reported lie wIas
fired from a hatch foreman's position in October 1977.
without just cause.
Mr. Silva continued to testif as follows:
Q. (By Mr. L.askx) What did you do about Soares
difficulty?
A. At that time, I spoke to the shop steward, which
I believe was both of the shop stewards, which was Mr.
Gomes and Mr. Joseph. We spoke to the Compan5
about it and they expressed their feelings about it, we
expressed ours. At that time, Mr. Soares was going to
proceed it further with the National Labor Relations
Board or whatever.
He had brought the problem to the Union and at
that time I said there was not that much time in the old
contract which will expire. We have a new contract
and we are already laying out lines of how a foreman
will be hired through mutual consent. I asked him at
that time to please just to stay where you are at and we
will resolve this at a later date which was what we did,
October I.
Q. You resolved it so that Wesley could not do this
to Mr. Soares and other people in the future?
A. No, not that we resolved it, that Mr. Wesley, we
resolved it so that each and every Union man would
have a fair deal at this. In other words, we wanted to
participate im who the (ompanN was going to hire and
who the\ was going to fire when it got up to the super-
Sisori capacity.
Silva further stated that in or about November 1977 John
FLnis came to hili and reported that Wesley had fired him
because on a prior job, a ear a;go. Weslec did not think he
was working list enough. At that time, Wesles was walking
foreman or 11TO(), but he was workin g as a winchman. Silva
said he was successful in ha lg all of these men (Soares
and Flnis) reinstated. Ile said, to his knowledge. there had
never /c c sa rike, ot iot r iopplag, ntil/ :March/ 20, 1978.
tie fi;-st learned about the walkout onl thilt Monday morn-
ing. March 20. 1978. around 8:30 a.m., and he tried to get
the men to g back to vork at I o'clock, but there were only
a feia people there s he left a message on the answering
service that there would be a meeting at the union hall the
next das. ()n the next mcirning, 'I uesday. March 21. 1978.
the I ni in met and a vote was taken b the men who did
Iot want to work flr Wesle an! more. After that meeting,
the men returned to work at I o'clock and the executive
board went to Stanton's office. Approsiinatels 61 or 62 men
catile to the meeting on Tuesday morning.
Silva further testified that it was Joseph who caine to him
on Monday morning and inflcrmed him of the work stop-
page on tlie lawericn ;alid. When asked whether he told
Wesley not to attend the union meeting, Silva testified as
tollows:
Tlil WIINI:ss: Yes, on numerous occasions as my-
sell' during the meeting, as him being a supervisor for
the (ompan. I ha ve asked him not to attend meet-
ings. I never demanded it of him. I asked him not to
attend meetings. I said. all the other foremen don't
attend meetings and I said o' are being paid by the
(ompany ',hich makes ou a Company supervisor
and your loyalt) would tend to be more C(ompany ori-
ented than LJnion and I am not the only one, there are
times when
Q. (By Mr. L.asky) MNr. Silva. the question was, have
you told or asked Mr. Wesley not to attend meetings?
Ho wever, Wesley told Silva he intended to continue at-
tending union meetings. Silva testified that the men were
upset b Wesley's attendance because Wesley would con-
stantly try to make motions and rules in the union meetings
that pertained to company benefits, taking the side of the
Company in the meetings. Silva said that the meetings were
sometimes disrupted because Wesley would get out of or-
der, thereby causing others to get out-of-order, and Silva
had to try to bring the meeting to order. Silva further stated
that Wesley's presence on statements at the union meetings
makes it impossible for the Union to discuss strategy be-
cause Wesley would generally be in opposition thereto.
When Silva was confronted with his affidavit and asked
whether he made the prior statement which read: "/ a
union mlember lc.v s.omnlehing to sY against ilte (onpanry, e
would nol discuss it at the nmeetings iJ' Mr. veslesv is there,
they tire fraid they might get fired or he harassed the nexlt
day, " and when asked whether that problecm would he elini-
nctiled i' icfisl 1a.t noIl I .supcri.isor tand nio longr abhle to fire
peopl/c. Si/l'a .said, "I lguess o. es. "
Prior to Wesley's termination Silva said there were many
complaints from the men against Wesley. some involving
818
1() CORPORATION
safety conditions on the ship. At the union meeting held on
Tuesday. March 2 1. 1978. the Union voted not to work the
Ea.vlern Maid as long as James Wesley was walking fore-
man. Silva said seniority under the October 1977 contract
had nothing to do with the hiring of swinchmen. Thereupon
counsel for the General Counsel had Silva read from page
74 of the Octohber 1. 1974. September 30. 1974. contract.
which provided as follows: "''he stevedore foreman ap-
pointed by the member contractors is to hire the hatch fore-
man and he will have the absolute right to hire or discharge
any employees. All hirings are to be conducted in the union
hall adjacent to it. which is to remain open to all individual
members and nonmembers of ILocal 1329 who wish to ap-
ply for work except premise to premise hiring."
Pursuant to the above paragraph. Silra testified that ant
conipanti mniber of /thei 4.vssociation had l t' rigit to ire ilt'
Halking/boremanl. Silva further testified that the replacement
for James Weslev as walking foreman was hired pursuant to
the new aforedescribed pro' isional agreement entered into
some time in February 1978. Under that provision. Silva
said, the Union and the Company had the authority.
Silva identified the provision in the new contract under
the topic "Party Hiring Procedures," which read as follows:
The top paragraph is "Party Hiring Procedure, when
a supervisor is to be hired hb a member contractor it
will be discussed by management and Local 1329.
Hatch foreman and foreman will have the right to hire
and fire in accordance with hiring procedures which
shall remain open to all individual members and non-
members of Local 1329 who wish to apply for work
except premise to premise hiring. Supervisors shall in-
clude, walking foreman, hatch foreman and dock fre-
man who shall be members of l.ocal 1329."
Silva said there is no provision for a relief winchman:
that Local 1329 hires the relief winchman. He said he has
nothing personal against James Wesle;: in fact, he said.
Wesley is married to his cousin. He acknowledged that We',s-
lev did not do anything inconsistent with tie ternms of the old
contract (October 1, 1974, to September 30, 1977), but
rather, he acted pursuant to it.
After the discharge of James Wesley. Silva said he and
Stanton, general manager for ITO. mutually decided who
would be the new walking foreman. He acknowledged that
he was present at the union meeting on April 26, 1978.
when Wesley brought up or rather moved that the rank-
and-file be governed by the old contract. The motion was
lost for want of a second. Wesley also tried to bring to the
floor the matter of the loss of his job. Silva said he told
Wesley he could not present his case to the rank-and-file at
that time because he had the right to submit his complaint
to a special union meeting. However, Wesley did not attend
the special union meeting and the Union had already voted
on the issue and had already received notice of cases filed
by Wesley with the National Labor Relations Board. Un-
der these circumstances, Silva said he felt that whatever
would come up at that meeting would have placed the
Union in a bad situation, and since Wesley did not attend
the special union meeting Wesley did not in tact follow the
correct procedure. Wesley's effort to present his complaint
at this time was therefore disallowed. When asked whether
Wesley was informed of the special meeting. Silva said
Wesley was advised of the special meeting called for March
21, 1978. at 10 a.m.. in the presence of Stanton. Joseph, and
himself. He said Wesley's reply was. "You know what ou
can do with your meeting" and he walked awa\.
Silva testified that Local 1329'adopted a grievance proce-
dure that is outlined in its 1968 local constitution, which he
read as follows:
TIn- Wt rNiss: The page. I am sorrN, is 12. Section 3.
"Discipline proceedings ma x he initiated by an 5 mem-
her of the Local b filing written charges specifying the
acts or conduct .with which he is accused. It is charged
with the recording secretary of the Local. The record-
ing secretary shall submit such charges to the Execu-
tive Board and shall promptly transmit a cop> of' the
charges to the accused. The President of the xecutive
Board shall fix a time and place for a hearing on the
charges and the recording secretlar shall send to the
accused at least five dass written notice of a hearing
setting forth the time and place, which time ma be
extended by the Executive Board fior good cause.
Shown, the hearing shall he held before the Executive
Board or if the Executive Board so decides before a
trial committee or Board b the Executive Board."
,1 )(; GAI)SI)I N: Is that the entire paragraph?
Iit WIINFSS: Yes. That is. now it says, "At the
hearing on the charges. the accused shall have the right
to appear, produce and cross-examine witnesses, and
to be represented b any member of the l.ocal in good
standing designated by him for that purposes."
Silva additionally testified that the Union also has an
unwritten grievance procedure which has been followed as
a matter of practice, which he inherited from his colleagues
in the Union. The Union and its members have used this
procedure since some time in the 1960's. He said the Union
has 125 active members and he acknowledged that Wesley
has not been a relief man since his discharge by ITO, al-
though he has been a relief man for other companies.
Under further examination. Silva said he did not allow
Wesley to bring up his grievance at the union meeting on
April 26, 1978, because Weslev had alrea&d taken a charge to
the National habor Relations Board, and there was no use in
causing conifusion when his grievance was going to be resolved
by the NLRB. He said, had Wesley brought his grievance to
the Union first, he (Silva) would have permitted him to present
it.
Complaints and Comments of Workers About Walking
Foreman James Wesley
Peter Vierra, a member of the Union and Longshoremen
since 1941. testified that he worked under Wesley for ITO,
but never had any trouble with him as a walking foreman.
On Monday. March 20, 1978, he verified that the men did
not report for work aboard the Eastern Maid, except him-
self. James Wesley. and Stanton.
Leonard Stanton, manager of ITO Corporation of Rhode
Island. testified that James Wesley was walking foreman
under his supervision and took actions pursuant to author-
ity granted to him. However, he acknowledged that the
men complained about Wesley making changes in the con-
tract (changed the hatch foreman). He said Raymond Silva
819
I)2( CISIONS OF NATIONAL ILABOR RELATIONS BOARI)
told him that the men did not want Wesley on the job and
desired that he he replaced because they did not like how
he was handling the assignments or appointments. Stanton
said he told Silva that Wesle was doing a goodjob and Silva
neglected to tell him which men would not work lor Weslev.
Stanton further testified that Silva told him that the men
would not work for Jim Wesley: that Wesley was trying to
run the Union and they did not like the way Wesley was
interpreting the contract. Stanton said he, like Wesley. felt
that although the contract had expired (September 30,
1977) the Union and ITO were continuing to operate under
the provisions of the expired contract, but Silva disagreed
with that understanding that the walking foreman could
hire and fire at his will.
On March 27. 1978, Stanton said he had a meeting in his
office with Farrell, Boyle, Captain Groom, vice president of
ITO, Raymond Silva, Antone Soares, Freddie Brown, and
Daniel Joseph. With respect to the subject of the meeting,
Stanton said Silva was the spokesman at the meeting and
he explained why the work stoppage took place. He said the
men would not work for Jim Wesley and that was the rea-
son for the stoppage. He also said the only way he got them
back to work was by Farrell promising on March 21. when
he telephoned him, that he would come down for this meet-
ing that was taking place on March 27.
Farrell said management still had the prerogative to hire
its key people and that they did not want to give it up.
Stanton reluctantly admitted that Silva said Jame. lW/esleyv
would have to he discharged. Farrell then agreed to discharge
James Wesley because the Respondent Emploqer had no other
choice. Shortly thereafter, he (Stanton) called James Wesley
and told him he (Stanton) was sorry that he had to tell him.
but the Employer (ITO) had to let him go. and it would
have to replace him as walking foreman. He said Wesley
said he was sorry too, disappointed, but he was going to the
National Labor Relations Board.
Stanton said, after another vessel came in under ITO,
ITO needed a relief winchman to fill a vacancy. He said he
asked Ray Silva about appointing James Wesley as relief
winchman, but Silva said no. He said the latter conversation
took place under the new agreement that the Union would
decide or select the relief winchman. Stanton also said that
in all the meetings Silva said he was representing the views of
the men and that at no time did he indicate or state that he
had something personal against James Wesley.
Stanton further admitted on cross-examination that un-
der the agreement October I, 1974, to September 30. 1977.
ITO (Employer) and NACIREMA had the sole authority
to hire walking foremen, and the employers did in fact hire
walking foremen. He acknowledged that, under the current
provisions agreed upon to be effective from September 30,
1977, to the expiration of the current agreement when it is
completed. the Employer does not have exclusive authority
to hire walking foremen, but only with and after consulta-
tion with the Union. The latter provision was agreed upon
some time during the first 3 months of 1978. and certainly
before March 20, 1978.
Under the new provisions the Union can appoint a relief
winchman, a position which is not based on seniority.
Stanton also said a delay in business operations costs the
Employer $8,000 to $10,000 a day, conservatively. He said
Wesley's output was good and that neither he nor ITO has
never interfered with Wesley's union activities. However, he
acknowledged that, i'the ULnion objectled to Repondenl fm-
plover'.s hiring Wesle, he would not hire US slev.
Rudolph Gomes said he informed Silva he was quite sure
he (Gomes) would appear. He also stated that he had
worked under the supervision of James Wesley and never
had any complaints about him nor had he heard any other
fellow members complain about him. lie also signed a
statement to that effect on behalf of Wesley. Subsequently,
Silva told him he had heard he (oniomes) had signed a state-
ment on behalf of Wesley: that he ((iomes) has had it
pretty well: and that he (omes) had better be careful of
his own job and stop trying to protect somebody else.
Gomes said Wesley was one of the most popular walking
foremen. He acknowledged that he is a friend of Wesley.
George Santos testified that he has been a union member
of Local 1329 since 1966 and of the longshoremen since
1955. He said he worked under the supervision of Wesley
and never had any complaints nor had he heard any other
union members voice complaints against him. Hie said he
went to the union hall on Tuesday. March 21. 1978. when
he heard Silva telling the men about Soares being fired. He
said Silva told him that Wesley invited Soares to his house
and put a bottle of booze on the table and told him he
(Wesley) would no longer use him as a hatch foreman.
Soares said what kind of a man would do this. Silva also
said Soares had a brand new house and had to pay for it.
Leonard Stanton also testified that Respondent's Exhibit
2 is the provision agreed upon with respect to staff positions
on a date which is uncertain but which occurred approxi-
mately in February 1978. lie denied that he called a work
stoppage.
Marcellino Medina a member of lIocal 1329 since 1966
and a Longshoreman, off and on, since 1954. testified that
he has known James Wesley since he worked on the water-
front: that he noticed that after Wesley became walking
foreman he would require the men to speed up production.
Sometime in 1977. he said he had a confrontation with
Wesley when his boss, Antone Sousa. approached him and
told him he did not want him to operate the chisel truck
(which he had operated for 10 to 12 years), because Wesley
said he (Medina) was not producing enough. Medina still
drives a chisel truck but said he does not work under Wes-
ley.
Joseph P. DiPina, a member of' Local 1329 since 1959,
was a good friend of Wesley. However, when Wesley be-
came walking foreman, DiPina said Wesley told him he was
his own man and in 1977 advised him (DiPina) that he was
not a qualified winchman. that he was too slow: and al-
though he had been a winchman 7 or 8 years. Wesley re-
placed him with a faster man. DiPina said he has never
been fired or demoted and he works as a foreman for other
companies. He and Wesley are still visiting friends, but he
will not work for Wesley, with Wesley's present attitude
towards production. He said Wesley is not safety conscious.
Daniel Joseph, Jr.. has worked on the front since 1954
and has been a member of Local 1329 for 18 years. His
function is to handle grievances or complaints from the
men about being pushed too hard or being asked to do
something other than what they are hired to do, logging
hours, getting hours. etc. On the morning of March 20,
Joseph said he observed the men were not going to work.
820
ITO CORPORATION
He asked a group of them what they were going to do, and
they told him to tell Jim Wesley and Lenny Stanton to
unload the ship. He and Wesley had arguments through the
year. In this regard Joseph continued to testify as follows:
Wesley was always taking work from the men, such
as driving a spare forklift on the dock which gear men
and other men on the waterfront can drive. Wesley
would continue to perform such work even though he
told him not to do so. The men complained about
Wesley's activity. Wesley should not have been per-
forming such work since he serves in a supervisory ca-
pacity. He acknowledged that on March 20. 1978. he
went to Raymond Silva on several occasions and told
him he thought the men did not want to work for Jim
Wesley. A special union meeting was called during
which the members unanimously voted that thev
would not work for Wesley.'
B. President Ramond Silva Wagered James Wesle, v That
Si/va Could Hlave Wesley Fired the Ne.xt Da., Within a
Week, or When the Contract E.xpired
Kenneth Oliveira, president of Cape Verdeian Social
Club, testified that on December 6, 1977, he served James
Wesley, Raymond Silva, George Santos, himself' and other
fellow employees a drink for the whole bar. Everybody was
enjoying himself until Silva asked who brought the drink
and he told Silva that Jim Wesley bought it. Silva told him
he would refuse to drink it.
Oliveira further testified that he advised Jim Wesley that
Silva refused to accept his drink, and Jim said. "Well, if he
had bought me a drink, I would drink it because I am a
man." Wesley and Silva proceded to argue about union
2 Except to the extent that Union President Raymond Silva testified that
the men did not want to work for James Wesley as walking foreman I do not
find the testimonial accounts of President Silva and that of ITO General
Manager Leonard Stanton in conflict. In fact, since I find boath accounts
essentially consistent and since President Silva did not dens any of the testi-
mony of Manager Stanton I credit the testimony of txboth witnesses. I further
credit their respective versions in this regard because I was persuaded by
their demeanor that they were testifying truthfully. However. while I credit
the testimony of both witnesses that President Silva told ITO officials and
perhaps some union members that the men did not want to work for James
Wesley, I find the testimony in this respect somewhat conflicting. Specifi-
cally I observe that the testimony of union members Peter Dierra. George
Santos. and Rudolph Gomes, clearly stating that they have worked under
the supervision of James Wesley and that none of them has experienced any
difficulties, nor have they heard of any other employees having difficulty in
working under Wesley's supervision. On the contrary. it is observed that the
testimony of union member Marcellino Medina related that the difficulty he
had with Wesley was that Wesley required the men to speed up their work
and had him replaced as a chisel truck operator because he did not work fast
enough; that union member Joseph P. DiPina testified that he too had been
replaced by Wesley with a faster worker, although he was. and still is. a
friend of Wesley; and union member Daniel Joseph, Jr.. testified that he
handles the grievances or complaints of the workers and that many of the
workers complained about Wesley being toox hard or engaging himself in
work which he (Wesley) was not hired to perform. I do not deem the latter
testimony of Medina, DiPina. nor Joseph to be in direct conflict with, nor a
refutation of. the testimony of the prior witnesses because it is not shown
that Wesley's replacement of the latter three witnesses was not justified or
unauthorized. Hence. it can not be said that any of the latter three witnesses
had difficulty working under Wesley except for the fact that they were re-
placed because they were not deemed by Wesley to be as productive as other
workers. Consequently. I do not credit the testimonial account of Silva to the
effect that the men or union members, without Silva's persuasion, did not
want to work under the super ision of James WesleN
business. and finally Silva told Weslex he would have him
fired h the next morning. Wesley said he was pretty sure
Silva could have him fired, but he told him if he had the
power to do so. to fire him. Then Silva said, "I will retract
tomorrow morning and I will make it within one week: that
in one week, Wesley would no longer he the walking fre-
man for ITO." Silva was so sure that he could discharge
WesleN that he said he was willing to put up his hank ac-
count, his house. his car, and whatever other assets he had.
lie was drinking alcoholic beverages at the time.
James Wesley's version of the altercation at the Cape
Verdeian Social Club was to the effect that Silva even pro-
posed a wager that he would have him (Wesley) fired. In
this regard, Wesley continued to testify as follows:
I didn't have much money on me. Ray had over
1.000 dollars and he wanted to lay me the 1.000 dollars
at the rate of 20 to I that I would lose my job. I didn't
have enough money to cover the 1.000 to 1 bet. I tried
to make him wait until tomorrow so I could go get it.
Kenneth Oliveira reached under the table and gave
me his money bag. Ray would not accept that. lie did
make a 20 to I bet.
Q. $20 to $1?
A. Yes.
JuI)(;I GAI)SI)tN: Did ou place the money
ti: Wii-lss: With Kenneth Oliveira.
JUt(,;t GADSD.N: Did Mr. Silva place $20?
TItiE WIINISS: Yes.
JLt)iE GADS)iN: With Mr. Oliveira'?
TIE WIINESS: Yes.
Jt ID(;l GAD)SDI)IN: It is your testimony that that is
still being held by Mr. Oliveira?
Tlti WINESS: That it correct.
Jtul)(;i GADS)lN: I just wonder why the bet was
still being held.
Q. (By Mr. Lasky) I)o you know why the bet is still
being held?
A. Yes.
Q. You want to tell us?
A. Yes. Because a little while later, he said by the
signing of the new contract you will no longer be walk-
ing foreman.
Q. Okay.
JtrD(;E GADSDEN: So the bet will not be resolved
until after the disposition of this proceeding.
Timi WltNfss: Right.
Wesley acknowledged that he discharged two hatch fore-
men, John Enis and Arthur Soares, and that Silva requested
him to send letters to that effect, so that the Union would
know that it was not an act of the Union, but rather an act
of the Company. A month later Silva reemployed both
men.
Wesley testified that on Monday. March 20 1978. a
meeting was held with Leonard Stanton and Dick Cramer
and Dick Hallen. two representatives of the Eastern Maid.
Dick Hallen asked him what it was that Ray Silva had
against him, and advised him that Silva said the men
wanted him fired because they did not want to work for
him.
Wesley said Stanton first intimated he would not fire him
because he had said "if we have to listen to and comply
X821
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union's request in holding a supervisor-walking
foreman, we might as well fold up shop and go out of busi-
ness." And then he said, "[W]e are not going to fire you.
You don't have to worry about being fired." These state-
ments were not denied by Manager Stanton.
On the next day, March 21, 1978, Wesley said he met
with Stanton, Dick Hallen, and Dick Cramer, and probably
Captain Groom, at which time he said he was going to the
National Labor Relations Board, and the conversation
among them continued as follows:
Captain Groom replied to Dick Hallen-I will go,
but he said, if I go it would only be like a one-party
suit. He says-I think you, Lenny, should go because
then it would be the Rhode Island Shipping Associ-
ation. It would be three companies that would be pro-
testing.
I agreed with Captain Groom-not verbally, but in
my mind. The conversation like this went on at length.
Q. Continue telling us what happened. Who said
what?
A. At length, I told them that I don't know what
you gentlemen are going to do, but I am going to the
NLRB. I didn't know the address. I did not know the
phone number. They assisted me in finding both. I
called and made an appointment.
A subsequent meeting was scheduled for March 27 with
ITO officers and the Union, and thereafter, Stanton told
Wesley that Ray Silva said "the men just want you fired.
They flatly refuse to work for you. They told us as long as
you have the job, that ITO could expect no cooperation
from the Union; that there would be a lot of work stop-
pages, and work delays while you have that job." Wesley
said Stanton then called him at home and asked him to
come to the office. When he arrived at that office, he said,
the following conversation occurred: He said to Stanton.
"okay, give me the bad news." Stanton then said, "Well,
Jim, I'm afraid that is what it is. You have been relieved
from your job." He asked Stanton what happened. and it
was at that time that Stanton gave him the aforedescribed
information. The parties stipulated that a number of ships
were in port for loading or unloading between March and
September 1978. Wesley said he was never unemployed but
just removed from his position as walking foreman. On
March 29, 1978, the Bershire came into port but he was not
selected as walking foreman, relief winchman, dock fore-
man, or wrenchman. He said he felt he was qualified to be
the relief winchman for ITO but he was not so designated.
On May 10, 1978, the Northern Highway and the Ponder-
osa ships came into dock under an ITO contract. Wesley
said he was not named to a staff position on either ship.
Pursuant to Respondent's Exhibit 3, page 5, section 2,
"Special Meetings Maybe Called by the President or Five
Members of the Executive Board with Special Notice Being
Sent." However, Wesley said he did not receive a notice of
a special meeting. He said he was never held an office in the
Union nor participated in any negotiations which are car-
ried on by Silva. Since his discharge as walking foreman,
Silva has hired him on one occasion and Gomes on one
occasion, but not for ITO. He admitted that seniority does
not have anything to do with the hiring of a relief winch-
man.
James Weslev has been a member of Local 1329 since
1955 and has worked for ITO in just about every job per-
taining to Longshoremen. The parties stipulated that after
March 27, 1978, vessels did come into the port of Provi-
dence to be worked by ITO Corporation, during which time
Wesley was not selected as a walking foreman or as a relief
winchman.
On May 14. 1978, Wesley said he attended a union meet-
ing during which he said the following transpired:
A. The discussion on the floor was about unloading
of cars---roll-on, roll-off car boat. Raymond Silva had
the floor. He was the presiding officer. Our practice has
been to put as many cars on the dock as possible. Ray
mentioned words to the effect that you shouldn't put
too many cars on the dock; that the drivers should sit
in the cars after a certain amount were on the dock.
I stood up and I said, "Mr. President, I think some
men would take advantage of that."
He told me-you are a company men and you have
no right at meetings, anyway.
Q. Did you respond to that?
A. I told him I am a dues paying member and I
have a right to attend.
After the meeting, Wesley said he saw Silva at Tilly
King's Cafe in Providence. Present were Tilly King, Toodie
Lopes, Freddie Brown, and David Roderick. Wesley con-
tinued to testify as follows:
Toodie Lopes was sitting right next to him, and the
point I had to make made me address Toodie Lopes.
first. I said-Toodie. how many hours did you work
last year?
He was reluctant to answer at first. I said-No, I
don't want no argument. flow many hours did you
work last year. about?
He said-I worked about 700 hours. I said--Okay,
Toodie, that means you paid union dues equivalent to
700 times 14 cents an hour. Right?
He said right. I said-Toodie, I worked 1540 hours
last year, and I worked over 1500 hours for the five
years preceding last year, and I paid 14 cents an hour
dues for everyone of those hours, and Toodie was one
who had also sided with Ray in saying walking fore-
man do not belong in meetings because they were com-
pany men.
So I was showing him if I pay more than twice as
much dues as you, and I am a dues paying member in
good standing, why then do I not have the right to
attend meetings.
Ray says you are paying dues for the privileges
and the other rights that being a union member gives
you. I said are you admitting that I am a union mem-
ber?
Yes, you are a union member, Ray says. Well, I said,
if I am a union member, by virtue of the fact that I am
a union member. I am entitled to every right that any
other union member is entitled to.
And. one of the rights of a union member is that he
is entitled to attend meetings.
Q. Was there a response to that?
A. Yes.
822
ITO CORPORATION
Q. By whom?
A. Raymond Silva.
Q. What did he say?
A. First I had a discussion with David Roderick.
and eventually he came in and he said You know. I
got a way of stopping you from coming to union meet-
ings.
Q. Who said that?
A. Raymond Silva. But I don't want to do it.
I said- Ray, I believe that I am right. I said - Ray.
why don't you let me just write a letter to the Nl.RB
and find out whether or not I do have the right to come
to the union meetings.
If I get a verdict back like that, I said, I not only will
not go to union meetings an5 more. I will apolize to the
body for the union meetings that I have attended.
He said we got lawyers. The union has a battery of
lawyers. We got many lawyers.
I said Why don't you call one of your lawyers. I.et
them send a letter to the Hall stating whether I have
the right to go to union meetings. I will go b what
they say and the same thing will apply.
He then said-I have a way of stopping you from
coming to union meetings.
I said-You have to do what you have to do and I
have to do what I have to do.
Rudolph Gomes, a member of Local 1329 for 28 years.
testified that he received a subpena to testify in this pro-
ceeding. With respect to a conversation he had with Silva
about the subpena, Gomes testified as follows:
A. I told him that a few of the fellows who were
subpenaed seem to wanted to hide the matter, and
being friendly with Mr. Silva and Mr. Wesley, I under-
stood the situation. So I told him I received a subpena
and am going to appear and I hoped that he hasn't
done anything wrong. I hoped Jim hadn't done any-
thing wrong, because all I know about it is what I
heard in the street. And I will present myself to tell the
truth.
Q. Was there any further conversation about your
subpena?
A. Yes, Mr. Silva said--well, I am busy' right now.
Rudy. I will get to you a little later.
Q. Did you and he in fact get together a little later?
A. Yes, He approached me and he said
Q. Where?
A. On the job site. There were two shifts that day.
We completed one at 20 minutes of 12 and we were re-
hired for another one. Mr. Silva at that time told me
the subpena isn't a subpena similar to a subpena that is
handed to you by a sheriff. He said - you dont't have to
testify if you don't want to.
Mathew Benton testified that he has been a member of
the Local since 1941 and was business agent of Local 1329
for 17 years. He was also chief negotiator for the Local until
1975. He said that during his tenure the current contract
expired six times and. on each such occasion, the parties
agreed to follow the expired contract until a new one was
executed up to 1975.
Analysis and Conclusions
The undisputed and credited evidence of record clearly
shows that the parties (Respondent Employer and Respon-
dent Ulnion) were parties to successive collective-bargaining
contracts, the last of which expired September 30, 1977:
that the last and prior contract contained a provision which
granted exclusive authority to Respondent Employer to
hire staff positions, which included hatchmen and walking
foremen: that in past years the practice was that the expired
contract would remain applicable to the parties' labor rela-
tion situations until a new contract was executed: that
James Wesley was hired by Respondent Employer as a
walking foreman in 1976, pursuant to the recently expired
contract between Respondent Employer and Respondent
Union: that Wesley's performance as a walking foreman
was highly satisfactory to Respondent Employer. which
had approved all of Wesley's decisions including his dis-
charge or demotion of hatchmen Soares and Enis from their
respective positions; and that both discharges or demotions
were found substantiated by deficient production records of
Soares and Enis.
When Union President Raymond Silva learned that the
two hatchmen (Soares and Enis) had been demoted or dis-
charged and their positions were being filled by Wesley
(Respondent Employer), Silva immediately contacted ITO
General Manager Leonard Stanton and Walking Foreman
Wesley and advised them that Respondent Employer no
longer had the authority to hire staff positions (hatchmen)
pursuant to the contract which expired September 30, 1977.
Manager Stanton and Wesley contended that Respondent
Employer still had such authority pursuant to the prior
practice, and that the expired contract still applied during
negotiations until a new one was executed. Union President
Silva insisted that an oral agreement discussed during some
unspecified time in negotiations prior and subsequent to the
expiration of the contract on September 30, 1977, and re-
duced to writing and initialed sometime in February 1978,
provided that staff positions (walking foremen and hatch-
men) shall be jointly selected by Respondent Employer in
consultation with Respondent Union.
In accordance with the provisional agreement heretofore
alluded to by Silva, Silva demanded and insisted on the
right of the Union to designate a new hatchman in Soares'
place, and Manager Stanton and Wesley relieved the hatch-
men they had hired and permitted his replacement with the
man Silva had selected. Manager Stanton said they (he and
Wesley) gave in to Silva's demand because "we wanted to
get the ship working." Although the latter statement was
not explained by Stanton or Wesley at the hearing, I never-
theless find that it is reasonably inferred from Stanton's
credited explanation as to why Respondent Employer re-
lented to Silva, that at least Respondent Employer did not
willingly concede to Silva's demand. This conclusion is
especially supported when Stanton's quoted explanation is
considered in conjunction with Silva's conduct towards
Wesley in the union meetings and his role in handling the
work stoppage, herein discussed infra.
The credited evidence of record further shows that, after
Wesley's demotion or discharge of hatchman Soares, Union
President Silva made a diligent effort in October 1977 to
have Soares reinstated to his position of hatchman by talk-
823
I)1 ('ISIONS OF: NATIONAL. LABOR RELATIONS BOARD
ing to ITO General Manager Stanton. Silva openly stated
without reasonable substantiation, that the Union was op-
posed to Wesley's demotion or discharge of Soares and
other of Wesley's firings and actions. When Wesley de-
moted or discharged hatchman John Enis in November
1977, Silva again went to General Manager Stanton and
succeeded in having both Soares and Enis reinstated to
their former positions of hatchmen. The record further
shows that sometime in October or November 1977, Silva,
in conjunction with other union officials. proceeded to hire
relief men pursuant to the new provisional agreement on
hiring staff positions. All of Silva's statements and actions
clearly demonstrate that he was provoked to anger by Wes-
ley's demotion or discharge or Soares and Enis.
Although a walking foreman and supervisor within the
meaning of the Act, the evidence of record is free of any
dispute that James Wesley, at all times material herein.
was, and is now, a member of the appropriate unit and a
dues-paying member of the Union. who regularly attended
and actively participated in union meetings. Again the
credited and undisputed evidence shows that Silva, by his
own admission, referred to Wesley as a "Company man"
attending meetings and representing company interests,
causing confusion and disruption, and creating a problem
for Silva in conducting union meetings.
Silva also told Wesley, "You know. I got a way of stop-
ping you from coming to union meetings," and Silva ac-
knowledged that one way to stop Wesley from attending
meetings was to eliminate Wesley from his supervisor or
walking foreman position. These exchanges between Wes-
ley and Silva regarding Wesley's attending union meetings
appeared to have become sharper during the March 14,
1978. meeting.
The undisputed and credited testimony of' disinterested
third party Kenneth Oliveira, president of the Cape Ver-
deian Social Club, and James Wesley further demonstrates
Silva's hostility for Wesley on December 6, 1977, when Sil-
va expressly refused to accept a drink on the house paid for
by Wesley, and an argument ensued. During the argument
Silva offered to wager Wesley his bank account, his house,
his car, other assets he owned, and finally $1.000 $20 to
$1-that he (Silva) could have Wesley demoted or dis-
charged as walking foreman by the next morning, which he
(Silva) changed to within I week. Wesley accepted Silva's
offer of wager and both Silva and Wesley placed their
money with Oliveira as a stakeholder at that time.'
Wesley testified that Silva threatened that he would no
longer be a walking foreman when Respondent Employer
and Respondent Union signed the new contract (the new
provisional agreement). Silva does not deny this testimony
and I credit Wesley's testimony in this regard.
On March 20, 1978, only two men out of' the entire work
force, James Wesley and another employee, reported for
work aboard the Eastern Maid. Practically all the union-
member workmen who testified in this proceeding denied
that they knew why the men failed to report for work on
March 20, even though they acknowledged that later that
I Oliveira still holds the wager because. alter Wesley was demoted as walk-
ing foreman. he filed a charge against Respondent Union (Silva) with the
NLRB, and Silva extended the time of the wager to the date the NLRB
disposes of the charge.
day they voted not to return to work. Only Union President
Silva explained to ITO officials that the reason the men
refused to work wvas because the' did not want to work
under the supervision of James Wesley. In this regard, Silva
was inferentially supported b the testimony of' Daniel
Joseph, Jr.. who stated that some of the men told him to tell
James Wesley and l.enny Stanton to unload the ship them-
selves. At least two witnesses, Rudolph Gomes and George
Santos, testified that they had no problem working under
the supervision of Wesley. Gomes, who had signed a state-
ment to that effect on behalf of Wesley, was warned by
Silva thlt hie (Gones) had better he care/id o/ his own job and
sto t Irvin o r(o(tt sotnebodl celse.
I)uring this proceeding Union President Silva initially
testified that he did not know why Wesley was no longer
walking foreman of Respondent Employer (ITO). Subse-
quently, he testified that Respondent Employer's general
manager. Stanton, had informed him that Wesley had re-
signed. He thereafter acknowledged that he did not ask
Wesley why he resigned, even though he met with company
officials (including Manager Stanton) prior to Wesley's dis-
charge or demotion. However, Manager Stanton undisput-
ably testified that, since November 1977, Union President
Silva had been complaining to him about Wesley's interpre-
tation of the contract, his hiring and firing practices, and
how he (Wesley) was trying to run the Union. Manager
Stanton's testimony was not denied by Silva. who Stanton
stated demanded Respondent Employer's discharge or de-
motion of Wesley if it wanted the men to return to work.
Laborer'S Internitonal Union ?/'North America, A Il. CIO,
I.ocal 4 78 (International Buidder of' Florida, Int.), 204 N I.RB
357 (1973). It was Silva who informed Respondent m-
ployer officials that the men would not return to work un-
der the supervision of James Wesley, and he insisted on
Wesley's discharge. Stanton then acknowledged that Re-
spondent Employer's official, Farrell, then agreed to dis-
charge James Wesley because, in his words, "we had no
other choice."
In further explaining the Company's rationale. Manager
Stanton said "if the Union was not going to work ships for
ITO in Rhode Island because Jim Wesley was the walking
foreman, and we wanted to continue doing business in
Rhode Island, then we had no other choice than to accede
to this, or agree to it." James Wesley's and Manager Stan-
ton's testimony further describes how company officials re-
sented the compulsion imposed by the Union (President
Silva) and even reconsidered not discharging Wesley, but
finally Stanton called in James Wesley and notified him
that he was sorry that he had to tell him, but Respondent
Employer had to let him go, and it would have to replace
him as walking foreman. Wesley simply said he was sorry
too, disappointed, but he was going to the Nationa! Labor
Relations Board.
Since Wesley's discharge, Manager Stanton said when
another vessel came in and Respondent Employer needed a
relief winchman to fill a vacancy, he (Stanton) asked Ray
Silva about appointing James Wesley as relief winchman.
Silva said no. Stanton further stated that, in all the meetings
regarding James Wesley, President Silva said he was repre-
senting the views of' the men (union membership), and Re-
spondent Union always felt that the old contract was appli-
824
ITO (ORPORATION
cable and that it still had the authority to select staff
positions, such as the walking foreman.
Based on all the credited evidence of record and the fore-
going discussions thereof I conclude and find that Respon-
dent Union's above-described conduct constituted restraint
and coercion against an employer in the selection of its
representative for the purposes of collective bargaining or
the adjustment of grievances, in violation of Section
8(b)(I )(B) of the Act; that Respondent Employer. by yield-
ing to the coercive and restraining conduct of Respondent
Union (demoting or discharging Wesley). thereby re-
strained and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, in violation of Section
8(b)(1)(A); and that by demanding that Respondent Em-
ployer demote or discharge James Wesley and by objecting
to Respondent Employer's hiring him as a winchman. Re-
spondent Union did cause Respondent Employer to dis-
criminate against its employees in violation of Section
8(a)(3) and (1) of the Act.
Although Respondent Employer unwillingly conceded to
the unlawful demands of Respondent Union. it did not
have to do so. Respondent Employer could have filed a
charge with the National Labor Relations Board against
the Respondent Union (Raymond Silva) for the unlawful
restraint and coercion exerted upon it by the Union. In-
stead, Respondent Employer elected to cooperate with the
Union (Silva) and, in doing so, violated the Act.
The credited evidence of record also established that
President Silva refused to permit discharged walking fore-
man James Wesley to bring the grievance of his demotion
before the Union. In this regard Union President Silva tes-
tified that he did not permit Wesley to bring it up before the
Union at the time because Wesley had already chose, of his
own free will, to take the charge to the Board. When asked
by counsel whether, if Wesley had not filed the charges with
the Board which led to a complaint being issued. he would
have allowed Wesley to bring the grievance of his demotion
before the union meeting. Silva responded, "I think so.
yes.
It is therefore clear that the Union, in not allowing Wes-
ley to process his grievance in accordance with standard-
ized grievance procedures utilized by the Union. violated
Section 8(b)( I)(A) of the Act.
I agree with counsel for the General Counsel that be-
cause the parties (Respondent Employer and Respondent
Union) initialed a provisional agreement regarding the hir-
ing of staff position. it does not constitute a new contract
within the meaning of Board law. Appl(alachi(n Shale Prod-
ucts Co., 121 NLRB 1160 (1958). and Bethlehem Steel Com-
pany, 95 NLRB 1508 (1951). 1 further agree that. even if
said provisional agreement did in fact constitute a new con-
tract, the language thereof does not specifically provide for
discharging or demoting persons in staff positions. More-
over, even if said language did so provide, I deem it elemen-
tary law that the parties cannot execute a valid contract
which, in design or effect, results in circumventing the lan-
guage and spirit of the Act: namely, allowing it union to
engage in coercive and restraining conduct to cause an em-
ployer to demote or discharge an employee. or conduct
which causes or attempts to cause an employer to discrimi-
nate against an employee with respect to conditions or ten-
ure of employment, because of such employee's affiliation
with, or participation in, a union.
1,. itl t IFFt I t iltE NlAIR ABO R PR\( 11' IS 'PON
('(IMMI: R( I:
The acti ities of' Respondents set forth in section I11,
above. occurring in connection with the operations of Re-
spondents described in section I., above. have a close, inti-
mate, and substantial relationship to trade, traffic. and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
V. li RMII)Y
Having found that Respondent Employer and Respon-
dent Union have engaged in unfair labor practices warrant-
ing a remedial order. I shall recommend that they cease and
desist therefrom and that they take certain affirmative ac-
tion to effectuate the policies of the Act.
It having been found that Respondent LUnion caused the
restraint and coercion of Respondent Employer in the se-
lection of its representative for the purposes of collective
bargaining or the adjustment of grievances, in violation of
Section 8(b)(1)(B) of the Act: that by such unlawful con-
duct of Respondent Union. Respondent Employer re-
strained and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, thereby violating Sec-
tion 8(b)( )(A) of the Act: and that by the above-described
unlawful conduct Respondent Union did cause Respondent
Employer to discriminate against its employees in violation
of Section 8 a)(3) of the Act. and thereby did engage in
unfair labor practices affiecting commerce within the mean-
ing of Section 8(b)(2) of the Act, causing Respondent Em-
ployer to discriminate in regard to hire or tenure or terms of
conditions of employment, in violation of Section 8(a)( 1)
and (3) of the Act, the recommended Order will provide
that Respondent Employer offer James Wesley immediate
reinstatement to his job, and make him whole for any loss
of earnings within the meaning of and in accord with the
Board's Decision in F. . Woolworth Conipanv, 90 NLRB
289 (1950). and Florida Steel Corporation, 231 NLRB 651
(1977)., except as specifically modified by the wording of
such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that Re-
spondent Employer cease and desist from in any other
manner interfering with, restraining, or coercing its employ-
ees in the exercise of the rights guaranteed by Section 7 of
the Act, N.L.R.B. v. Entwistle Manufacturing Company. 120
F.2d 532. 536 (4th Cir. 1941): that Respondent Union cease
and desist from in any other manner interfering with, re-
straining, or coercing Respondent Employer in the exercise
of its right to select its representati e for the purposes of
collective bargaining or the adjustment of grievances guar-
anteed b Section 8(b)( I )(B) of the Act: and that Respon-
dent Emploser cease and desist from discriminating against
,ith respect to (Genera! (ounsel's requesl tor an order of 9 percent
interest on backpa? o,,ing to. James wesle, he i reierred to the Board's
t)ecisions in tu Pluphinm&, r liam C,,. 138 N t.RB 716I962) .and Flortda
St'c/ (')rpolrlluln, 1tzlrtI
825
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its employees with regard to their tenure of employment or
any term or condition of employment, in violation of Sec-
tion 8(a)(3) and (I) of the Act.
Upon the basis of the above findings of fact and upon the
entire record in this case, I make the following:
CNLUSIONS ()F LAW
1. ITO Corporation of Rhode Island, Inc.. the Respon-
dent Employer, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Longshoremen's Association Local 1329
is, and has been at all times and material herein. a labor
organization within the meaning of Section 2(5) of the Act.
3. By demanding that Respondent Employer demote
James Wesley from the position of walking foreman before
union workers would return to work, Respondent Union
restrained and coerced Respondent Employer in the exer-
cise of its right to select its representative for the purposes
of collective bargaining or the adjustment of grievances, in
violation of Section 8(b)(1)(B) of the Act.
4. By demoting James Wesley from the position of walk-
ing foreman and by thereafter failing and refusing to rein-
state him to said position. and/or to hire him as winchman.
Respondent Employer restrained and coerced its employees
in the exercise of rights guaranteed in Section 7. in violation
of' Section 8(b)( I )(A) of the Act.
5. By demanding and insisting that Respondent Em-
ployer demote or discharge James Wesley from the position
of walking foreman, and thereafter continually objecting to
Respondent Employer's reinstating Wesley to the position
of' walking foreman, or to Respondent Employer hiring
James Wesley as winchman, Respondent Union did cause
Respondent Employer to discriminate against its employees
in regard to hire, or terms or conditions of employment, in
violation of Section 8(a)(3) and (1) of the Act, and thereby
did engage in and is engaging in unfair labor practices af-
fecting commerce within the meaning of Section 8(b)12) of
the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
826