Lakes Pilots Assn.

National Labor Relations Board - Board Decisions

Dec 18, 1995

320 N.L.R.B. 168 (N.L.R.B. 1995)

168
320 NLRB No. 42
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent Employer has excepted to the judge’s accepting
into evidence certain letters from the Coast Guard to the Charging
Party concerning his eligibility to become a fully registered pilot and
for backpay stemming from his 1991 layoff. The Employer argues
that it was prejudiced by not being able to cross-examine the author
of the letters. We find no merit to this exception. The letters were
admissible to show their impact on the parties’ understanding of the
Coast Guard’s positions regarding various issues and on the parties’
subsequent actions. The accuracy of the statements contained in the
letters is not material to this proceeding. Consequently, the Employer
was not prejudiced by its inability to cross-examine the author.
The Employer also has excepted to the judge’s refusal to accept
into evidence certain documents the Employer sought to introduce
after the close of the hearing. We find no merit to that exception,
because we agree with the judge that the proffered materials would
not aid in the disposition of the matters before us. Two of the docu-
ments concern the dismissal of the Charging Party’s earlier charge.
One is a letter to the Charging Party from the General Counsel’s of-
fice, explaining the dismissal of that charge; it adds nothing of sub-
stance to the uncontroverted evidence already in the record. The
other is a letter faxed by the Charging Party to counsel for the Gen-
eral Counsel, expressing the former’s opinions—which are irrele-
vant—concerning the dismissal of the earlier charge and its rel-
evance to the charge in this case. The remaining documents are addi-
tional letters to the Charging Party from the Coast Guard, concerning
the Charging Party’s apparent refusal to comply with that agency’s
requirements for becoming a fully registered pilot. Those letters are
not pertinent to the issue of whether the Union previously violated
its duty of fair representation (as we find that it did); unlike the
Coast Guard’s earlier letters, they were written too late to have in-
formed the parties’ actions at issue here. And because we find, for
the reasons discussed in part 3, below, that no affirmative remedy
for this particular violation is required under the circumstances of
this case, the letters are not relevant to the remedy either. Accord-
ingly, we find that the Employer has not been prejudiced by the
judge’s exclusion of these materials.
Lakes Pilots Association, Inc. and William B.
Hanrahan
Interlakes Pilots Association District No. 2, Local
1921, International Longshoremen’s Associa-
tion, AFL–CIO and William B. Hanrahan.
Cases 7–CA–33014, 7–CB–8840, and 7–CB–9105
December 18, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On September 13, 1993, Administrative Law Judge
Wallace H. Nations issued the attached decision. The
General Counsel, the Respondents, and the Charging
Party filed exceptions and supporting briefs, and the
Respondent Union filed an answering brief. The
Charging Party also filed a motion to supplement the
record.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings,1 findings, and conclusions only to the extent con-
sistent with this Decision and Order.
The judge found that Lakes Pilots Association (the
Respondent Employer) interfered with the administra-
tion of the Respondent Union and rendered assistance
and support to it, in violation of Section 8(a)(2), be-
cause of the dominating role played by the Employer’s
shareholders in the affairs of the Union. The judge also
found that the Employer unlawfully assisted the Union
by providing it with free office space and telephone
service. He found that, because of the Employer’s
shareholders’ role in its affairs, the Union had a con-
flict of interest that prevented it from effectively rep-
resenting the Employer’s employees. The judge further
found that, by maintaining and enforcing a collective-
bargaining agreement containing a union-security
clause, the Employer and the Union violated Section
8(a)(2) and (3) and Section 8(b)(1)(A) and (2), respec-
tively. Finally, he found that the Union violated its
duty of fair representation, in violation of Section
8(b)(1)(A), by arbitrarily failing and refusing to proc-
ess certain grievances of the Charging Party, William
Hanrahan. In the process of finding the violations, the
judge rejected the Employer’s contention that the
charge against it is time-barred by Section 10(b) of the
Act.
To remedy the violations, the judge ordered both
Respondents to cease giving effect to the collective-
bargaining agreement insofar as it applies to the Em-
ployer’s shareholders. He ordered the Employer to
cease allowing its shareholders to occupy positions in
the Union, and ordered the Union to cease allowing
the shareholders to be members. He also ordered the
Employer to stop providing the Union with free office
space and telephone service. The judge ordered the
Union to process Hanrahan’s grievances, to arbitration
if necessary. In this regard, noting that the contract
provided for the Employer and the Union each to ap-
point one member of the three-person arbitral panel,
the judge ordered the Union to relinquish to its inter-
national parent its choice of a panelist.
The Respondents have excepted to all the violations
found by the judge and to his remedy. The Employer
has also excepted to the judge’s finding that the allega-
tions raised against it are not barred by Section 10(b).
The General Counsel has excepted to the judge’s fail-
ure to impose a conditional make-whole order to rem-
edy the Union’s failure to process Hanrahan’s griev-
ances. Hanrahan has excepted to the judge’s failure to
find him to be an independent contractor.
As we discuss below, we affirm the judge’s findings
that the Respondents violated the Act and that the
charge against the Employer is not time-barred. How-
ever, for the reasons set forth below, we adopt the
judge’s remedy only in part, and we find no merit to
169LAKES PILOTS ASSN.
2 In support of his conclusion that the Employer interfered with
and assisted the Union, the judge found that union members who are
not registered pilots and shareholders of the Employer are not al-
lowed to vote on union affairs. The Employer contends that that
finding is contrary to the Union’s constitution and bylaws, which
provide that ‘‘Nonpilot members are not permitted to vote on issues
related to pilotage, but shall have the right to vote in manners [sic]
relating to their interests.’’ Union President Kanaby, however, testi-
fied without qualification that only registered pilots are allowed to
vote in elections ‘‘or other Union activities.’’ We find that the judge
implicitly credited Kanaby’s testimony over the somewhat ambigu-
ous provisions of the bylaws. We also note that, in any event, the
registered pilots greatly outnumber the nonpilot members of the
Union; therefore, even if nonpilots have limited voting rights, the
pilots/shareholders would be able to outvote them at any time. As
the pilots/shareholders also are the only members who are allowed
to hold union office and to serve as members of the Union’s bar-
gaining committee, we find that the judge’s conclusion that the Em-
ployer unlawfully interfered with and assisted the Union is well sup-
ported by the record. Those factors clearly distinguish this case from
Power Piping Co., 291 NLRB 494 (1988), and Hoyt, Brumm &
Link, Inc., 292 NLRB 1060 (1989), cited by the Employer.
Because we agree with the judge that the Employer interfered with
and assisted the Union in other, more serious ways, we adopt his
finding that the Employer also violated Sec. 8(a)(2) by providing the
Union with free office space and telephone services. It is not nec-
essary for us to decide whether the latter forms of assistance would
be unlawful if the other 8(a)(2) violations had not been committed.
3 Sec. 10(b) of the Act provides that ‘‘no complaint shall issue
based upon any unfair labor practice occurring more than six months
prior to the filing of the charge with the Board and the service of
a copy thereof upon the person against whom such charge is
made[.]’’ 4 273 NLRB 1389 (1985).
either Hanrahan’s exception or that of the General
Counsel.
1. We agree with the judge, for the reasons stated
in his opinion, that the Employer violated Section
8(a)(1), (2), and (3), and that the Union violated Sec-
tion 8(b)(1)(A) and (2). Concerning the 8(a)(2) viola-
tion, we note that, although the judge referred at times
to domination of the Union by the Employer and its
shareholders, his conclusion of law (consistent with the
complaint allegations) was that the Employer had un-
lawfully interfered with and assisted the Union, not
that it had dominated the Union.2 Neither the General
Counsel nor the Charging Party has excepted to the
judge’s failure to include domination among his con-
clusions of law, or to his failure to order the disestab-
lishment of the Union, which is the usual remedy for
an 8(a)(2) domination. We therefore do not decide
whether a domination violation could have been found
had it been alleged in the complaint, or whether dis-
establishment of the Union would have been an appro-
priate remedy in that event.
2. We also adopt the judge’s finding that the allega-
tions against the Employer are not barred by Section
10(b).3 We do so, however, only for the following rea-
sons.
As the judge explained, the Charging Party, William
Hanrahan, filed a charge against the Employer in Case
7–CA–31833 on April 30, 1991. That charge alleged
that Hanrahan had been discharged without cause, in
violation of Section 8(a)(3) and (1). In addition, the
charge alleged that the Employer had achieved its
‘‘corporate objectives’’ by controlling the Respondent
Union and included a number of factual allegations
supporting the latter contention. Although the charge
specifically alleged only an 8(a)(3) and (1) violation,
the Regional Office investigated the possibility that the
Employer dominated the Union. The Acting Regional
Director found no merit to the allegation that Hanrahan
had been unlawfully discharged and no evidence of un-
lawful domination of the Union by the Employer, and
dismissed the charge. Hanrahan appealed the decision
to the General Counsel, but his appeal was denied.
On March 9, 1992, Hanrahan filed the charge
against the Employer in Case 7–CA–33014, alleging
that it unlawfully dominated the Union, in violation of
Section 8(a)(2), and was party to a contract with the
Union that enabled the Employer to discriminate
against employees because of their union activities, in
violation of Section 8(a)(3) and (1). The Acting Re-
gional Director issued a complaint based on this
charge. The complaint alleges that the Employer is a
corporation, the stock of which is wholly owned by the
registered pilots, who have an active role in the Com-
pany’s management, and who are also members of the
Union and serve as the Union’s officers. The com-
plaint alleges that the registered pilots are managerial
employees, and that through their membership in and
participation in the affairs of the Union, the Employer
has interfered with the administration of, and rendered
unlawful assistance to, the Union in violation of Sec-
tion 8(a)(2). The complaint further alleges that the Em-
ployer violated Section 8(a)(3) and (1) by maintaining
in effect and enforcing a collective-bargaining agree-
ment with the Union that requires employees, includ-
ing those who are not registered pilots, to become and
remain members of the Union as a condition of em-
ployment, despite the Employer’s alleged unlawful in-
terference in the affairs of the Union and the conflict
of interest on the part of the Union that assertedly has
resulted from that interference.
The Employer has consistently argued that the
charges against it are time-barred by Section 10(b). It
argues that the charge in Case 7–CA–33014 is nothing
more than a reinstatement of the dismissed charge in
Case 7–CA–31833, and that, under Ducane Heating
Corp.,4 a complaint could not properly issue based on
similar charges filed more than 6 months after the
events that were the subject of the dismissed charge.
The judge agreed ‘‘to an extent.’’ Thus, he acknowl-
edged that the facts on which the 8(a)(2) allegations of
the complaint are based were in large part the subject
of the dismissed charge. He also observed, however,
that the 1992 charge alleges that the Employer dis-
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The judge cited Nickles Bakery of Indiana, 296 NLRB 927
(1989). He also noted that the violations alleged on the part of the
Union are based on the Union’s relationship with the Employer, and
suggested that because the allegations against the Union are not
time-barred, neither are those against the Employer. We disavow that
suggestion. As the Employer argues, there is no basis for finding an
otherwise untimely charge against one party to be timely merely be-
cause the facts underlying the charge are closely related to the issues
in a timely filed charge against a different party.
6 The Employer relies on Chemung Contracting Corp., 291 NLRB
773 (1988).
7 The Employer cites Leeward Nursing Home, 278 NLRB 1058,
1066 (1986).
8 See NLRB v. Erie Marine, Inc., 465 F.2d 104, 107–108 (3d Cir.
1972).
criminated against Hanrahan because of its domination
of the Union, and further noted that the evidence of
discrimination was used to support the allegation that
a disabling conflict of interest exists on the part of the
Union. In this regard, the judge continued, evidence in
support of the 1992 charge includes the Employer’s re-
fusal to award Hanrahan backpay and lost benefits for
the 1991 shipping season and the Union’s failure to
grieve that refusal. The judge found that that evidence
is not time-barred and that there thus exists an inde-
pendent basis for the timely charge. The judge found
that the 1992 charge is closely related to the earlier
dismissed charge, in that the otherwise untimely alle-
gations arise from the same operative facts, involve the
same legal theory, and would require the same or simi-
lar defense, as those in the 1992 charge. He therefore
found that the earlier allegations are not time-barred.5
In its exceptions, the Employer continues to press its
argument that the 1992 charge is simply the tardy rein-
statement of the dismissed 1991 charge and that, con-
sequently, the later charge is untimely under Ducane.
The Employer further contends that, contrary to the
judge’s view, there was nothing timely about the
Union’s failure to grieve the Employer’s alleged im-
proper conduct. Even assuming, arguendo, that the
conduct cited by the judge fell within the 10(b) period,
the Employer continues, it is at most a timely mani-
festation of its earlier alleged domination of the Union,
based on facts that were known at the time the earlier
charge was dismissed. Moreover, the Employer asserts
that even if the acts relied on by the judge otherwise
would constitute the basis for a timely charge, in this
case they are time-barred because they are neither sep-
arate nor distinct from the conduct that was the subject
of the earlier charge, but rather are entirely consistent
with that conduct.6 Finally, the Employer contends that
the timely evidence of domination is inextricably
linked to the now time-barred conduct alleged to be
unlawful in the dismissed charge, and therefore that
the judge erred in applying the ‘‘relation back doc-
trine’’ to the evidence in this case.7
We reject the Employer’s contention that the charge
against it was untimely filed, but not entirely for the
judge’s reasons. To begin with, we disagree with the
Employer’s assertion that the 1992 charge is merely a
reinstatement of the dismissed 1991 charge. The 1992
charge explicitly alleges unlawful conduct on the part
of the Employer since (at least) September 6, 1991—
after the earlier charge had been filed and dismissed,
and after the dismissal was upheld by the General
Counsel. Insofar as it refers to conduct that occurred
since September 6, 1991, the 1992 charge thus could
not be based on the discrete acts alleged in the earlier,
dismissed charge. Moreover, the judge based his find-
ing of unlawful domination on institutional factors—
i.e., the registered pilots’ status as managerial employ-
ees and their control of the Union—that were present
at the time Hanrahan filed his earlier charge, but that
continued to exist during the 10(b) period. The charge
in this case thus is based on institutional factors that
existed contemporaneously with the filing of that
charge; it does not depend at all on acts that occurred
or arrangements that existed only prior to the 10(b) pe-
riod. Consequently, there is no merit to the Employer’s
argument that it is merely a reinstatement of the dis-
missed charge. Both the Employer and the judge, then,
are incorrect in supposing that Ducane applies in this
case.
For essentially the same reasons, the Employer’s re-
liance on Leeward Nursing Home and Chemung Con-
tracting is misplaced. In both of those cases, the
Board, following the Supreme Court’s teaching in Ma-
chinists Local 1424 (Bryan Mfg. Co.) v. NLRB, 362
U.S. 411 (1960), dismissed as untimely allegations of
unlawful conduct that occurred during the 10(b) period
because the unlawful character of that conduct could
be proved only by reference to conduct that had taken
place before the 10(b) period. In those cases, however,
as in Bryan Mfg., the acts occurring during the 10(b)
period were not, in themselves, unlawful; proof of their
unlawful character depended on a showing that some
other unlawful act had taken place. As the earlier un-
lawful conduct had taken place prior to the 10(b) pe-
riod, the acts committed during the 10(b) period were
not found to be unlawful, because their unlawful char-
acter could be proved only by reference to time-barred
conduct. That is not the situation here. The Employer
was alleged, and shown, to have interfered with and
assisted the Union during the 10(b) period. That is not
conduct that would be lawful but for the commission
of some other unlawful act prior to the 10(b) period;
it is unlawful in and of itself. Consequently, the com-
plaint allegation is not untimely under Bryan Mfg. and
its progeny.8
We do find that the judge improperly considered the
allegations in the dismissed charge not to be untimely
because they are closely related to those of the March
1992 charge. Although the allegations of the two
charges are, indeed, closely related, the earlier ones are
171LAKES PILOTS ASSN.
9 See Redd-I, Inc., 290 NLRB 1115, 1116 (1988). We find, how-
ever, that the judge properly relied on certain time-barred conduct—
e.g., the nomination of Union President Kanaby by Lakes Pilots
President Green—to shed light on the character of the relationship
between the Employer and the Union during the 10(b) period. Bryan
Mfg., 362 U.S. at 416.
10 Indeed, Hanrahan testified that no pilot was permitted to own
more than 10 shares.
11 Green’s testimony establishes that Singler was a director in
1992. As the charge in this case was filed on March 9, 1992,
Singler’s status as a director persisted during the 10(b) period.
12 See, e.g., Furniture Workers Local 76B (Office Furniture), 290
NLRB 51, 61 fn. 44 (1988).
13 Art. IX of the collective-bargaining agreement provides that
[a]ny dispute or controversy which may arise as to the inter-
pretation or application of any of the provisions of this Agree-
ment, including all matters herein which expressly provide that
they shall be dealt with in accordance with this clause, shall be
referred to an Arbitration Committee for adjustment or decision,
as provided herein.
not timely to the extent they are based on acts that did
not take place within 6 months before the charge in
this case was filed.9 The judge’s error in this regard
was harmless, however, because, as we have noted, the
violations he found on the part of the Employer are
fully supported by conduct that occurred during the
10(b) period.
We note, in this regard, that the judge found unlaw-
ful interference with and assistance to the Union prin-
cipally because he found that all the registered pilots,
who make up the majority of the Union’s membership,
all of its officers, and all members of its bargaining
committee, are managerial employees. He based the
latter finding, which we adopt, in part on evidence
that, as of April 1, 1991, it was impossible to assemble
a five-person board of directors of Lakes Pilots who
collectively would have owned a majority of the Com-
pany’s stock. Thus, the pilot shareholders who were
not directors possessed the power to control manage-
ment of the Employer. (Of the 118 shares owned by
14 active pilots at the time, a maximum of 50 could
have been owned by directors, because no pilot owned
more than 10 shares.10 April 1, 1991, is outside the
10(b) period, however, and it is possible that shifts in
ownership could have occurred since then that would
have rendered the judge’s finding inaccurate during the
10(b) period. No party makes that contention, however,
and other evidence is to the contrary. Lakes Pilots’
President Green testified that in 1992, there were 12
or 13 active pilots. Assuming that there were only 12
(a reduction of 2 since 1991), and further assuming
that the two who were no longer active each had
owned 10 shares in 1991 but owned those shares no
longer, there would have been 98 shares owned by ac-
tive pilots; a 5-man board of directors, each of whom
owned 10 shares, would have had numerical control of
the Company. As the board was constituted after De-
cember 1990, however, no more than 4 directors
owned 10 shares; Director Singler owned only 6.11
Collectively, then, the board owned only 46 shares,
which would have been less than a majority even
under the assumptions above. Consequently, and in
view of the fact that no party contends otherwise, we
find that the judge’s findings concerning the pilots’
stock ownership in April 1991 were also valid during
the 10(b) period.
For all the foregoing reasons, we find that the Em-
ployer has not carried its burden of demonstrating that
the charges against it are time-barred.12 In so finding,
we emphasize that we rely only on conduct occurring
during the 10(b) period and not on conduct prior to
that period (except to the extent the time-barred con-
duct sheds light on the character of the conduct that
took place during the 10(b) period).
3. The judge found that the Union violated Section
8(b)(1)(A) of the Act by failing to process Hanrahan’s
grievances against the Employer concerning the latter’s
failure to recommend him to the Coast Guard for reg-
istration as a United States registered pilot and its li-
ability, if any, for earnings and benefits lost as a result
of his termination or layoff during the 1991 shipping
season. The judge ordered the Union to process those
grievances to arbitration, if necessary. He did so over
Hanrahan’s protest that, because of the Employer’s
control of the Union, the Employer is effectively able
to appoint a majority of the arbitral panel. (The con-
tract provides for a three-member arbitral panel, com-
prising one member assigned from the Employer, one
member from the Union, and one neutral member.) Be-
cause he agreed with Hanrahan regarding the Union’s
conflict of interest arising from its relationship with
the Employer and the potential for a biased arbitral
panel, the judge recommended that the Union be or-
dered to have the International Longshoremen’s Asso-
ciation (ILA), which has no such conflict of interest,
select the panelist that otherwise would be chosen by
the Union.
The Respondents except. The Employer argues that
neither the registration issue nor Hanrahan’s backpay
claim is a dispute or controversy arising under the col-
lective-bargaining agreement,13 that the Union there-
fore could not have filed a cognizable grievance con-
cerning either matter, and consequently that the Union
did not violate its duty of fair representation by failing
to grieve either matter. The Union contends that
whether Hanrahan is to be registered is a matter that
is beyond the scope of the Union’s authority and that
has, in any event, been placed before the Coast Guard,
which is the agency that has the authority to register
him as a pilot. The Union also argues that Hanrahan’s
backpay grievance is nonmeritorious. Accordingly, the
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 The Union also contends that, under the judge’s decision, it is
not a labor organization and therefore owes Hanrahan no duty of fair
representation. It further contends that the judge erred in ordering it
to process Hanrahan’s grievances because the judge found that the
collective-bargaining agreement, which contains the grievance-arbi-
tration procedure, is unenforceable. There is no merit to either argu-
ment. The Union admitted that it is a labor organization. In any
event, a union does not lose its status as a labor organization merely
because of employer interference or conflict of interest. See Sierra
Vista Hospital, 241 NLRB 631, 632 (1979). A contrary holding
would effectively read Sec. 8(a)(2) out of the Act. The judge did not
find that the collective-bargaining agreement was unenforceable with
regard to applicant pilots like Hanrahan.
15 Sec. 8(d) provides that the obligation to bargain collectively
‘‘does not compel either party to agree to a proposal or require the
making of a concession.’’
16 We therefore reject the Respondents’ argument that the Union
did not violate Sec. 8(b)(1)(A) by failing to process the backpay
grievance because (in their view) the grievance lacked merit. A
union violates Sec. 8(b)(1)(A) by failing or refusing to process even
a nonmeritorious grievance, if it does so for arbitrary or capricious
reasons rather than because of the grievance’s lack of merit. In that
event, however, the Board will not order the union to arbitrate the
grievance. See Teamsters Local 705 (Associated Transport), 209
NLRB 292, 292–293 (1974), affd. sub nom. Kesner v. NLRB, 532
F.2d 1169 (7th Cir. 1976), cert. denied 429 U.S. 983, 1022 (1976).
Thus, even if we were to find that the backpay grievance was with-
out merit (which, as we explain below, we do not), we still would
find the 8(b)(1)(A) violation.
17 Although the Coast Guard’s letters were in response to the Em-
ployer’s purported termination of Hanrahan, an arbitrator could find
that those opinions also applied to his layoff.
18 As the Supreme Court held in Steelworkers v. Warrior & Gulf
Navigation, 363 U.S. 574, 582-583 (1960), arbitration should be or-
dered ‘‘unless it may be said with positive assurance that the arbitra-
tion clause is not susceptible of an interpretation that covers the as-
serted dispute. Doubts should be resolved in favor of coverage.’’
Union contends, the judge erred in ordering the proc-
essing of both grievances.14
Both Respondents argue that the judge further erred
in ordering the Union to have the International Union
select the union representative on the arbitration panel.
The Employer contends that the composition of the ar-
bitral panel is a matter of contract negotiated by the
parties, and that forcing the parties to accede to a pro-
cedure against their will violates Section 8(d) of the
Act.15 The Union excepts to this provision on the
ground that the International Union was not a party to
the dispute and is not a respondent in this proceeding.
We agree with the judge that the Union violated its
duty of fair representation by failing to process
Hanrahan’s grievances. The record supports the judge’s
finding that the Union failed to pursue those griev-
ances because of its conflict of interest, not because
Hanrahan failed to ask that the issues be grieved or be-
cause they were not grievable or meritorious.16 In this
regard, we agree with the judge’s finding that the
Union knew that Hanrahan wanted the Union to pursue
the registration issue. We further note that, in fact, the
Union apparently considered that issue to be poten-
tially grievable. The minutes of the Union’s executive
board meeting on August 13, 1991, state in part:
The Wm. Hanrahan case was discussed, it was de-
cided that when President Kanaby receives a letter
from John Baker, President Great Lakes district
we will investigate the matter and if indeed all of
the requirements have been met by Brother
Hanrahan the Union will petition the Lakes Pilots
Association for full registration for Brother
Hanrahan.
Nor was the Union alone in its perception that the reg-
istration issue could be grieved. The International
Union evidently thought so, too. As the judge noted,
ILA Great Lakes District President Baker informed
Kanaby, by letter dated August 27, 1991, that he saw
no problem in taking Hanrahan’s registration grievance
to the Employer and, if need be, to arbitration. As for
Hanrahan’s backpay claim, there is no doubt that he
expressly demanded the Union’s assistance in ‘‘recov-
ering all back pay, special pays, pension contributions
and all other benefits due me.’’ The Union simply ig-
nored this request. We therefore find that the record
supports the judge’s finding that the Union’s proffered
reasons for not processing Hanrahan’s grievances were
pretextual.
Although we affirm the judge’s finding that the
Union violated Section 8(b)(1)(A), we adopt his rem-
edy only in part. We adopt his affirmative order re-
quiring the Union to process Hanrahan’s backpay
grievance. Contrary to the Respondents, we do not find
that that grievance has been shown to lack merit. Thus,
although the collective-bargaining agreement states that
the Employer has the right to lay off applicant pilots,
it also provides that nothing in the agreement shall be
construed contrary to applicable laws and regulations.
The Coast Guard informed Hanrahan and the Em-
ployer in late 1991 that Hanrahan remained an appli-
cant pilot and that the Employer was obligated to ten-
der him all the emoluments consistent with that status.
Thus, an arbitrator might find that the Employer actu-
ally was not entitled to lay Hanrahan off, because that
action could be construed as inconsistent with the
Coast Guard’s position that he remained an applicant
pilot;17 in that event, Hanrahan might indeed be enti-
tled to recover backpay and benefits for the period of
his layoff. In these circumstances, the presumption is
in favor of arbitration.18
Unlike the judge, however, we decline to order the
Union to process Hanrahan’s grievance concerning the
Employer’s failure to recommend him to the Coast
Guard for full registration. Faced with the Union’s in-
action, Hanrahan took his cause directly to the Coast
Guard, which informed him in detail of what he must
do to satisfy the requirements for full registration. It
thus appears that the issue is now out of the hands of
the Union and even of the Employer. It has been
173LAKES PILOTS ASSN.
19 Member Truesdale would find that Hanrahan’s registration
grievance remains arbitrable notwithstanding Hanrahan’s resort to
the Coast Guard after his union violated his statutory rights. Thus,
the grievance, which claims that the Employer wrongfully failed to
recommend Hanrahan for full registration, was arbitrable when filed
and there is no showing that an arbitrator could not now direct the
Employer to make such a recommendation if the grievance were
found meritorious or that such a recommendation would be ineffec-
tual. Accordingly, Member Truesdale would also require the parties
to arbitrate this grievance.
20 We therefore also find unnecessary the provision of the judge’s
recommended Order requiring the Union to cease allowing the reg-
istered pilot shareholders to be members of the Union.
21 Because we have found this provision of the judge’s order to
be unnecessary, we do not decide whether it is actually improper,
as the Respondents have argued in their exceptions.
22 Rubber Workers Local 250 (Mack-Wayne), 290 NLRB 817
(1988). Chairman Gould questions the validity of the holding of
Mack-Wayne, but finds it unnecessary to reach that issue here.
In agreeing with her colleagues that a make-whole remedy is not
appropriate in this case, Member Browning expresses no view on
whether Mack-Wayne was correctly decided.
23 We are at a loss to understand why Hanrahan would make this
argument. Were we to agree with it, Hanrahan would lose the pro-
tection of the Act.
24 Hanrahan cites Bisso v. Inland Waterways, 349 U.S. 85 (1955),
and Guy v. Donald, 203 U.S. 399 (1906).
placed before the Coast Guard itself, which is the only
entity that can give Hanrahan the relief he truly
seeks—full registration. We therefore find that no pur-
pose would be served by ordering the Union to process
that grievance.19
We also reject the judge’s recommendation that, be-
cause of its conflict of interest, the Union should cede
to the International Union its authority to appoint a
representative to the arbitral panel. We find this provi-
sion unnecessary. Thus, we modify the judge’s rec-
ommended Order to require the Employer to cease al-
lowing the registered pilot shareholders, who are man-
agerial employees and not properly part of the bargain-
ing unit, to occupy positions in the Union, to partici-
pate in any union election conducted by, for, or on be-
half of the Union, including ratification of any collec-
tive-bargaining agreement covering employees in the
unit, or otherwise to interfere with the administration
of the Union. See, e.g., St. Joseph’s Hospital, 254
NLRB 634 (1981). This provision will prevent the reg-
istered pilots from participating in such unit-based ac-
tivities as selecting a representative for the arbitral
panel.20 There will then be no impediment to the
Union’s selecting an unbiased representative for the ar-
bitral panel.21
The General Counsel has excepted to the judge’s
failure to include a provisional make-whole order as
part of his recommended remedy for the Union’s fail-
ure to process Hanrahan’s grievances. We find no
merit to that exception.
As we have noted, when a union has violated its
duty of fair representation by arbitrarily failing or re-
fusing to process an employee’s grievance, the Board
will order the union to process the grievance, if nec-
essary to arbitration, provided it has not been shown
to lack merit. If it proves impossible, for procedural or
substantive reasons, to process the grievance, the union
is ordered to make the employee whole for any loss
of pay he may have incurred because of the union’s
failure or refusal to act.22
In the circumstances presented here, we find no
need for such a provisional make-whole remedy. Nei-
ther collective-bargaining agreement in evidence con-
tains a timeliness requirement for filing and processing
grievances. Nor do there appear to be any other im-
pediments to the Union’s taking Hanrahan’s backpay
grievance through the grievance/arbitation process. It
would seem, then, that Hanrahan’s grievance can be
resolved on its merits, and that if he is owed any com-
pensation for lost wages or other benefits arising from
his layoff, the Employer will make him whole. Ac-
cordingly, we find no need to impose a provisional
make-whole order on the Union.
4. Charging Party Hanrahan has excepted to the
judge’s failure to find him to be an independent con-
tractor rather than a statutory employee.23 Hanrahan
argues that he provided pilotage service alone, pursu-
ant to compulsory pilotage statutes and regulations,
and that under Supreme Court authority,24 he was an
independent contractor, not an employee. Con-
sequently, according to Hanrahan, the issues in this
case are admiralty torts under the jurisdiction of the
Federal district courts, rather than of the Board.
We find no merit to this exception. Hanrahan’s em-
ployee status was implicitly taken for granted by all
concerned until he raised the issue in exceptions.
Hanrahan did not address the matter in his brief to the
judge. Accordingly, we find that the matter has not
been fully and fairly litigated, and therefore that it is
not properly before us.
In any event, we are not persuaded that applicant pi-
lots like Hanrahan are independent contractors within
the meaning of the Act. In determining whether indi-
viduals are employees or independent contractors, the
Board applies a ‘‘right of control’’ test. Under this
analysis,
[w]here the one for whom the services are per-
formed retains the right to control the manner and
means by which the result is to be accomplished,
the relationship is one of employment; while, on
the other hand, where control is reserved only as
to the result sought, the relationship is that of an
independent contractor.
Air Transit, 271 NLRB 1108, 1110 (1984) (quoting
News Syndicate Co., 164 NLRB 422, 423–424 (1967)).
Whatever the case may be with regard to registered pi-
lots, it is clear from the record that the Employer does
exercise control over the manner in which applicant pi-
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 As the judge found, Hanrahan’s alleged failure to make the re-
quired trips on the Maumee River was one reason the screening
committee recommended that he not be considered for registration
by the Coast Guard.
26 We have no doubt that Hanrahan was unaccompanied by more
senior pilots on many trips, as he contends. That is not inconsistent
with Green’s testimony that applicant pilots are given increased re-
sponsibility, in stages, as they acquire experience. The fact remains,
however, that Hanrahan remained subject to the screening commit-
tee’s oversight and to the requirement that the senior pilots observe
his proficiency in performing pilotage services on the various indi-
vidual watercourses.
27 The decisions cited by Hanrahan do not appear to have con-
cerned the status of individuals like Hanrahan, who were in training
to become full-fledged pilots.
Hanrahan has moved to supplement the record, to include three
letters—one from the Labor Department, one from the Internal Reve-
nue Service, and one from the Commerce Department’s Great Lakes
Pilotage Administration—concerning the status of registered pilots as
independent contractors. We deny the motion, because the independ-
ent contractor issue has not been fully and fairly litigated and be-
cause the letters do not appear to address the status of applicant pi-
lots such as Hanrahan, and thus are of scant, if any, relevance in
this proceeding.
28 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
lots perform their pilotage functions while they are un-
dergoing training. Employer President Green testified
that the Employer’s screening committee, composed of
three senior pilots, oversees the applicant pilots, lays
out a rough program of what is expected, and receives
reports from other pilots who have ridden with the ap-
plicants, concerning their performance. Green also tes-
tified that applicant pilots do not work by themselves
at first; rather, they begin by mastering the easier areas
of piloting and gradually advance to more difficult jobs
as they acquire greater expertise and are approved by
more experienced pilots. Several witnesses testified
that registered pilots ride with applicant pilots and
watch their performance. At the end of 3 years of
training, the screening committee makes its rec-
ommendation to the Lakes Pilots membership, which
then decide whether to recommend to the Coast Guard
that the applicant receive full registration. Until an ap-
plicant has successfully completed the required number
of trips, observed by more senior pilots, in the various
waterways served by the Employer, he is not rec-
ommended for full registration.25 As an applicant pilot,
then, Hanrahan remained under the observation of the
registered pilots and the screening committee for the
duration of his training.26 On this record, we find that
the Employer did not exercise control only over the re-
sults of Hanrahan’s pilotage service, but instead that it
also retained the right to control the manner in which
he performed those services. Accordingly, the record
does not support a finding that he was an independent
contractor, under the Board’s right of control test, dur-
ing the relevant time period.27
ORDER
A. The National Labor Relations Board orders that
the Respondent, Lakes Pilots Association, Inc., Port
Huron, Michigan, its officers, agents, successors, and
assigns shall
1. Cease and desist from
(a) Permitting registered pilot shareholders, includ-
ing those in direct managerial positions and those who
vote as shareholders in matters affecting the bargaining
unit, to occupy positions in Interlakes Pilots Associa-
tion, District No. 2, Local 1921, International Long-
shoremen’s Association, AFL–CIO (the Union), to par-
ticipate in any union election conducted by, for, or on
behalf of the Union, including ratification of any col-
lective-bargaining agreement covering employees in
the unit, or otherwise to interfere with the administra-
tion of the Union.
(b) Giving effect to and enforcing the collective-bar-
gaining agreement between it and the Union to the ex-
tent it applies to registered pilot shareholders.
(c) Providing free office space and telephone service
to the Union.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Mail to each of its employees included in the
bargaining unit, by registered mail, and post at its fa-
cility at Port Huron, Michigan, copies of the attached
notice marked ‘‘Appendix A.’’28 Copies of the notice,
on forms provided by the Regional Director for Region
7, after being signed by the Respondent’s authorized
representative, shall be mailed to each of the Respond-
ent’s unit employees by registered mail and posted by
the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
B. The National Labor Relations Board orders that
the Respondent, Interlakes Pilots Association, District
No. 2, Local 1921, International Longshoremen’s As-
sociation, AFL–CIO, its officers, agents, and represent-
atives, shall
1. Cease and desist from
(a) Maintaining in effect and enforcing any collec-
tive-bargaining agreement with Lakes Pilots Associa-
tion, Inc. (the Employer) covering the Employer’s em-
ployees, which requires membership in the Union as a
175LAKES PILOTS ASSN.
29 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
condition of employment, to the extent it includes
under its coverage registered pilot shareholders in the
Employer.
(b) Failing and refusing to process, to arbitration if
necessary, the grievance filed by Charging Party Wil-
liam Hanrahan over backpay or other benefits lost by
virtue of being terminated or laid off by the Employer
for the 1991 shipping season.
(c) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) On request of Charging Party Hanrahan, process,
to arbitration if necessary, his grievance over backpay
and other benefits lost by virtue of his being termi-
nated or laid off by the Employer for the 1991 ship-
ping season.
(b) Send by registered mail to each of its members
and each member of the bargaining unit, and post at
its office in Port Huron, Michigan, copies of the at-
tached notice marked ‘‘Appendix B.’’29 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s au-
thorized representative, shall be sent by registered mail
to each of the Respondent’s members and each mem-
ber of the bargaining unit, and posted by the Respond-
ent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members and employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT permit registered pilot shareholders,
including those in direct managerial positions and
those who vote as shareholders in matters affecting the
bargaining unit, to occupy positions in Interlakes Pilots
Association, District No. 2, Local 1921, International
Longshoremen’s Association, AFL–CIO (the Union),
to participate in any union election conducted by, for,
or on behalf of the Union, including ratification of any
collective-bargaining agreement covering employees in
the unit, or otherwise to interfere with the admin-
stration of the Union.
WE WILL NOT give effect to and enforce the collec-
tive-bargaining agreement between us and the Union to
the extent it applies to registered pilot shareholders.
WE WILL NOT provide free office space and tele-
phone service to the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
LAKES PILOTS ASSOCIATION, INC.
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT maintain in effect and enforce any
collective-bargaining agreement with Lakes Pilots As-
sociation, Inc. (the Employer) covering the Employer’s
employees, which requires membership in the Union as
a condition of employment, to the extent it includes
under its coverage registered pilot shareholders in the
Employer.
WE WILL NOT fail and refuse to process, to arbitra-
tion if necessary, the grievance filed by William
Hanrahan over backpay or other benefits lost by virtue
of his being terminated or laid off by the Employer for
the 1991 shipping season.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, at Hanrahan’s request, process, to arbitra-
tion if necessary, his grievance over backpay and other
benefits lost by virtue of his being terminated or laid
off by the Employer for the 1991 shipping season.
INTERLAKES PILOTS ASSOCIATION, DIS-
TRICT NO. 2, LOCAL 1921, INTER-
NATIONAL LONGSHOREMEN’S ASSOCIA-
TION, AFL–CIO
John Ciaramitaro, Esq., for the General Counsel.
Robert M. Vercruysse, Esq., Lynne E. Deitch, Esq., C. Pat-
rick O’Sullivan, Esq., and Jeffrey M. Wilke, Esq., of De-
troit, Michigan, for the Respondent Employer.
J. Douglas Korney, Esq. and Anthony Houle, Esq., of Bing-
ham Farms, Michigan, for the Respondent Union.
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Charging Party filed an earlier charge against the Respondent
Employer on April 30, 1991, in Case 7–CA–31833. This charge was
dismissed by the Region, and the dismissal upheld on appeal by the
Charging Party. Respondent Employer contends that because of this
dismissal, the charge in Case 7–CA–33014 is time-barred under Sec.
10(b) of the National Labor Relations Act (the Act). This contention
is discussed and ruled on at pp. 22–23 of this decision.
2 The parties have sought in a number of pleadings filed subse-
quent to the hearing to supplement the record with various items of
purported evidence. I do not believe the record needs such sup-
plementation and reject each of the proffered items as unnecessary,
not subject to cross-examination, and not worth reopening the record
to consider.
3 Respondent Employer does not contend that the Charging Party
is not an employee entitled to the protection of the Act. This conten-
tion was made and dismissed in a recent case involving an almost
identical employer. See Upper Great Lakes Pilots, 311 NLRB 131
(1993). Under almost identical facts with respect to the organization
of the Respondent employer and its operation, the Board asserted ju-
risdiction.
4 I can find no evidence that the Union failed to properly represent
the Charging Party for the reason that he was delinquent in his dues.
It did fail or refuse to properly represent him, however, for reasons
unlawful under the Act.
William B. Hanrahan, pro se, of Fort Tratiot, Michigan, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This
proceeding is based on an order consolidating cases, consoli-
dated amended complaint and notice of hearing (complaint)
issued on July 10, 1992, by the then Acting Regional Direc-
tor for Region 7. This complaint was based on charges
brought by William B. Hanrahan (Charging Party), on March
9, 1992 in Case 7–CA–33014 against Lakes Pilots Associa-
tion, Inc. (Respondent Employer or Respondent Association),
and on August 7, 1991, in Case 7–CB–8840 and on February
20, 1992, in Case 7–CB–9105 against Interlakes Pilots Asso-
ciation, District No. 2, Local 1921, International Longshore-
men’s Association, AFL–CIO (Respondent Union).1 The
complaint alleges, inter alia, that Respondent Employer has
engaged in activity in violation of Section 8(a)(1), (2), and
(3) of the Act, and that Respondent Union has engaged in
activity in violation of Section 8(b)(1)(A) and 8(b)(2) of the
Act. Respondents deny the commission of any of the viola-
tions alleged in the complaint.
Hearing was held in these matters in Port Huron, Michi-
gan, on February 1 through 4, 1993. Briefs were received
from all parties on or about the first week of April 1993.2
Based on the entire record and on my observation of the de-
meanor of the witnesses, and in consideration of the briefs
submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Employer at times material to this decision
has been engaged in providing pilotage services for ocean-
going freight vessels while these vessels ply the waters of the
St. Lawrence Seaway and the Great Lakes. Respondent Em-
ployer has admitted the jurisdictional allegations of the com-
plaint and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and 7 of the Act.3
II. THE INVOLVED LABOR ORGANIZATION
It is admitted and I find that the Respondent Union is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The consolidated complaint alleges that the Association
and the Union violated the Act as follows:
1. (a) Respondent Association is a corporation whose
shares are held exclusively by registered pilots who have an
active management role in the operation of the corporation.
(b) Respondent Union also represents the above-described
pilot shareholders as part of the unit, which includes persons
other than registered pilot shareholders. These same reg-
istered pilot shareholders regularly serve as Respondent
Union’s officers and as Respondent Association’s officers
and exercise authority over the employment status of the
nonshareholder unit employees.
(c) Because of the role registered pilot shareholders play
in the management of Respondent Association, they are man-
agerial employees and are, therefore, excluded from the cov-
erage of the Act and are not appropriately a part of the unit.
(d) In view of the conduct set forth above, Respondent As-
sociation has interfered with the administration of, and ren-
dered unlawful assistance to, Respondent Union.
2. The relationship between Respondent Association and
Respondent Union has resulted in a disabling conflict of in-
terest which has interfered with Respondent Union’s ability
to represent nonmanagerial Unit employees.
3. (a) Since on or about March 1991 and continuing to
date, by virtue of the relationship described above, Respond-
ent Union has breached its duty of fair representation in its
handling of grievances concerning Respondent Association’s
failure to recommend the Charging Party for registered pilot
status and Respondent Association’s decision to layoff and/or
terminate the Charging Party.
(b) Since on or about October 1, 1991, and continuing
through March 31, 1992, Respondent Union refused to rep-
resent the Charging Party or process his grievances because
he was delinquent in his dues.4
4. By being parties to and by maintaining in effect and en-
forcing a collective-bargaining agreement which, among
other things, requires the employees covered thereby as a
condition of employment to become and to remain members
of Respondent Union, despite the disabling conflict of inter-
est as described above, Respondent Association has engaged
in unfair labor practices within the meaning of Section
8(a)(1), (2), and (3) of the Act and Respondent Union has
engaged in unfair labor practices within the meaning of Sec-
tion 8(b)(1)(A) and 8(b)(2) of the Act.
5. By the conduct described above, Respondent Associa-
tion has been interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act in violation of Section 8(a)(1) of the Act.
6. By the conduct described above, Respondent Associa-
tion has interfered with the administration of, and has ren-
177LAKES PILOTS ASSN.
5 The Association employs three pilot boat captains and three
deckhands, who operate two pilot boats. The function of these em-
ployees is to ferry pilots between shore and the vessels they pilot.
6 The information with regard to the ownership of the shares of
the Association was received at my request after the record in this
case closed. It was submitted in the form of an affidavit from the
Respondent Association and is made a part of this record as Judges
Exh. 1.
7 The unit of employees represented by the Union is as follows:
All pilots and pilot boat (auxiliary) personnel employed by the
Association, excluding office clerical employees, managerial em-
ployees, guards and supervisors as defined in the Act.
dered unlawful assistance and support to a labor organization
in violation of Section 8(a)(1) and (2) of the Act.
7. By the conduct described above, Respondent Associa-
tion has been discriminating in regard to the hire or tenure
or terms or conditions of employment of its employees,
thereby encouraging membership in a labor organization in
violation of Section 8(a)(1) and (3) of the Act.
8. By the conduct described above, Respondent Union has
been attempting to cause and causing an Employer to dis-
criminate against its employees in violation of Section
8(a)(3) of the Act in violation of Section 8(b)(2) of the Act.
A. Does the Relationship Between the Association and
the Union Create a Disabling Conflict of Interest and
Are the Union’s Members Who Own Stock in the
Association Managerial Employees Not Appropriately
Part of the Involved Unit?
1. The organization of the Association and the Union
The Respondent Association is a corporation formed pur-
suant to the Great Lakes Pilotage Act of 1960, as amended
(46 U.S.C.A. Sec. 9301). This legislation established stand-
ards and procedures for use of pilots in ship navigation in
the Great Lakes and the rivers and other navigable waters
flowing from these Lakes. The Act gives the U.S. Coast
Guard the responsibility for overseeing Great Lakes Pilotage,
including licensing or registering competent pilots, setting
rates for pilotage and providing for making arrangements
with Canada for equitable participation in setting pilotage
policy and division of pilotage work. The Coast Guard has
divided the Great Lakes into three described districts and has
authorized the formation of an association of registered pilots
in each. The Respondent Association is the privately owned
business which forms the official pool of pilots for District
2, which generally is the navigable area of the Great Lakes
from Port Colburn, Ontario, near Buffalo, New York, to
Bouys 11 and 12, just above Port Huron, Michigan, and all
rivers entering this specified area of the Great Lakes.
Respondent Association is composed of the registered pi-
lots, applicant pilots and pilot boat employees of the Asso-
ciation.5 An applicant pilot is one who is in training to be-
come a registered pilot. This process takes about 3 years and
is governed by U.S. Coast Guard regulations. All stock in the
corporation is owned by the registered pilots in the involved
Association, and all but one of the active registered pilots
own stock. The amount of stock ownership varies among the
various pilots and thus some pilots have more votes in share-
holders’ meetings than others. Applicant pilots and the pilot
boat employees are not allowed to own stock. As of April
1990, there were 18 pilots on the Association seniority list,
all of which were registered pilots, except the Charging
Party, who was an applicant pilot. At the beginning of 1990,
the officers of the Association were: Daniel Coleman,
president/director; Milton Waldrop, vice president/director;
Thomas Leinweber, second vice president/director; Daniel
Meyers, treasurer; and Robert Greene, director. In August
1990, Coleman resigned and was replaced by Greene.
Greene’s director position was filled by Paul Singler on De-
cember 18, 1990. As of April 1991, there were 15 registered
pilots in the Association of which 14 owned stock. The own-
ership of stock in the Association was as follows: Robert
Greene (10 shares), Thomas Leinweber (10 shares), Victor
Anderson (10 shares), Francis Kanaby (10 shares), James
Ray (10 shares), Thomas Schnell (10 shares), William
Yockey (10 shares), Milton Waldrop (10 shares), Philip
Knetchel (10 shares), Daniel Meyers (10 shares), Bradley Ell
(4 shares), Glen Pahel (4 shares), Paul Singler (6) shares, and
William Coppola (4 shares).6
The Union was chartered in or about 1965 and became af-
filiated with the International Longshoremen’s Association as
a separate Local.7 The Union and the Association have en-
tered into a series of collective-bargaining agreements, the
two most recent agreements were effective from April 4,
1990, to April 1, 1991, and April 2, 1991, to April 1, 1993,
respectively. The agreements have a union-security clause
and all registered pilots and applicant pilots are required to
be union members. Applicant pilots are probationary mem-
bers until they achieve registration. Pilot boat employees of
the Association may become members but are not allowed to
occupy union office and as a matter of course are not invited
to nor do they attend union meetings.
The involved collective-bargaining agreements indicate
that their provisions are not to be in conflict with the Code
of Federal Regulations provisions dealing with piloting. In
the exercise of its representative function the Union is gov-
erned by a constitution and bylaws. The Union’s constitution
and bylaws set forth the union officer positions and their du-
ties. The president presides at all meetings of the Union and
its executive board (consisting of all of its officers). The
president also countersigns all checks, appoints persons to,
and is an ex-officio member of all committees. The president
appoints all stewards and represents the Union in all matters.
The Union’s vice president acts for the president in his ab-
sence or disability. The secretary-treasurer keeps meeting
minutes, receives and deposits all moneys received by the
Union, and is authorized by the executive board to sign
checks. The trustees acts as an auditing committee. The con-
stitution and bylaws in article VI indicates that only 2-year
members are eligible to run for union office and only mem-
bers may vote for union office, i.e., U.S. registered pilots. It
also provides for a 15-day notice for nominations and elec-
tions to union office. Article VII provides that the Union’s
executive board exercises all disciplinary powers, fills officer
vacancies, supervises union affairs, and authorizes the ex-
penditure of funds. Article IX provides that nonpilots are
only admitted to special membership with limited member-
ship rights, are not permitted to vote on pilotage matters and
may not hold union office. Article XI provides that the exec-
utive board serves as a bargaining committee and formulates
collective-bargaining demands.
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Though not alleged in the complaint, I find this assistance by the
Association to the Union to be in violation of Sec. 8(a)(2) of the
Act. Upper Great Lakes Pilots, supra.
At the beginning of 1990, Victor Anderson was president
of the Union. During that year, he resigned and was tempo-
rarily replaced by Glen Pahel. In December 1990, Francis
Kanaby, a director of the Association for several years until
1989, was made president of the Union, replacing Pahel.
This change occurred at the biannual meeting of the Union,
held at the same time as a special board of directors meeting
of the Association. The Association’s minutes of its board
meeting reflect that Anderson and Pahel attended the meeting
and represented the Union. The minutes of the union meeting
reflect that Greene, president of the Association, moved to
forego the notice requirements of the Union’s bylaws relating
to nominating union officers in that less than the required 15-
day notice of elections had been given. This was passed.
Greene then nominated Francis Kanaby to be union presi-
dent. Newly elected Association board member Paul Singler
nominated Thomas Schnell to be union vice president, and
Victor Anderson nominated William Coppola to be union
secretary/treasurer. These nominations were elected by accla-
mation.
The Association provides the Union office space and tele-
phone services without charge in the Association’s office
building.8
B. Are the Registered Pilot Shareholders Managerial
Employees Excluded from the Coverage of the Act, as
Alleged in the Consolidated Complaint?
In the recent case of Upper Great Lakes Pilots, 311 NLRB
131 (1993), the Board dealt with an Association of Great
Lakes pilots and their union which are organized and operate
under circumstances very similar to the Association and
Union involved in this proceeding. In deciding that certain
of the pilot shareholders were not unprotected managerial
employees, the Board stated at 132:
He [the judge] found that no pilot held an amount of
stock sufficient to divest him of employee status,6 that
the corporate bylaws permit an entrenched board of di-
rectors and effectively deny nonmanagement sharehold-
ers the power to amend the bylaws.
We agree with the judge’s conclusion, but not with
all of his underlying analysis. Although no single pilot
owned enough stock to determine the Respondent’s cor-
porate policy, that fact alone does not end the inquiry.
The pilots as a group owned all the Respondent’s vot-
ing stock; thus, as a group, they could effectively de-
termine corporate policy. As the Respondent points out,
the Board in a number of representation cases has ex-
cluded, from bargaining units of other employees,
shareholder-employees whose collective holdings of
their employer’s stock, gave them an effective voice in
formulating and determining policy.7 As the Board spe-
cifically noted in Brookings Plywood, where a large
number of employees own a large portion of their em-
ployer’s stock, they may collectively influence manage-
ment policies even though no one of them would be
likely to affect the making of corporate policy by him-
self.8 The judge’s reliance on Airport Distributors
therefore is misplaced, because the employee in ques-
tion in that case (a 10-percent stockholder) apparently
was the only employee who owned shares of the em-
ployer’s stock.
We find, however, that the judge reached the correct
result here. The Respondent’s directors and officers
during the relevant time period together owned more
than half of the voting stock. The rest of the pilots,
even acting in concert, could not outvote the officers
and directors. On the basis of their stock ownership,
then, the minority shareholders lacked an effective
voice in the formulation and determination of corporate
policy. The record contains no evidence that those indi-
viduals effectively determined the Respondent’s poli-
cies, or that they could have replaced the officers or di-
rectors in order to gain control of corporate decision-
making.9 It is well settled that stock ownership alone
does not deprive an employee from the protection of
the Act,10 and we agree with the judge that the pilots’
job functions are not those of managerial employees.
We therefore find that the pilots who were not officers
or directors of the Respondent were not unprotected
managerial employees, and that they were entitled to
the protection of the Act.11
6 The judge cited Airport Distributors, 280 NLRB 1144, 1150
(1986).
7 Sida of Hawaii, Inc., 191 NLRB 194, 195 (1971); Red & White
Airway Cab Co., 123 NLRB 83, 85 (1959); Brookings Plywood, supra,
98 NLRB at 798–799. In excluding the shareholder-employees, the
Board relied in part on the fact that those individuals enjoyed pref-
erential treatment over other employees, or otherwise had divergent in-
terests. Although the Board in those cases simply excluded the share-
holder-employees from units with other employees, and did not square-
ly hold that they were unprotected managerial employees, that seems
to have been the Board’s underlying rationale. See Florence Volunteer
Fire Department, 265 NLRB 955, 956 (1982). See also the Supreme
Court’s discussion of the Board’s evolving treatment of managerial em-
ployees in NLRB v. Bell Aerospace Co., 416 U.S. 267, 275–289 (1974).
But see Everett Plywood & Door Corp., 105 NLRB 17, 19 (1953), in
which the Board expressly found that stockholder-employees were pro-
tected by Sec. 7, even though they collectively held more than 75 per-
cent of the employer’s stock, where (like the pilots) all employees were
stockholders. In that case, the Board followed its consistent practice and
excluded from the bargaining unit employee-shareholders who were di-
rectors of the corporation. Id. at 19–20.
8 98 NLRB at 798.
9 See, e.g., S-B Printers, 227 NLRB 1274, 1275 (1977).
The Board has excluded groups of shareholder-employees from bar-
gaining units, even though they collectively owned less than half of the
employer’s stock. Brookings Plywood, supra; Union Furniture Co., 67
NLRB 1307 (1946). In neither case, however, was the situation now
before us presented; i.e., there was no showing that the corporate offi-
cers and directors collectively owned a controlling block of stock.
Florence Volunteer Fire Department, supra, cited by Respondent, is
unlike this case. In Florence, each of the firefighters had an equal voice
in management decisions, and no policy could be set or implemented
without ratification by vote of the membership. Those circumstance do
not exist here.’’
10 Airport Distributors, supra, 280 NLRB at 1150.
11 A fortiori, pilots Aho, Ojard, and Soderquist, who had not yet
purchased stock, were protected employees.
The Board’s holding in Upper Great Lakes Pilots, Inc.
was made in the context of deciding whether certain pilot-
shareholders were entitled to the protection of the Act as al-
leged discriminatees. In the instant case, the question is
whether the stockholder status of the pilots makes them man-
agement employees, properly excluded from the involved
179LAKES PILOTS ASSN.
unit, and creates a disabling conflict of interest when partici-
pating in union activities. Although the organization of the
Respondent employers in the two cases is very similar, there
are significant differences. In the instant case, the members
of the Board do not hold a majority of the shares of the As-
sociation. Based on the stockholdings in effect in April 1991,
it would be virtually impossible for a board to be elected that
did control a majority of the shares. Thus, as stated by the
Board in Upper Great Lakes Pilots, Inc., ‘‘The pilots as a
group owned all the Respondent’s voting stock; thus, as a
group, they could effectively determine corporate policy.’’
Additionally, this case differs from Upper Great Lakes Pi-
lots, Inc. as the unit includes six pilot boat employees who
can never be shareholders, one applicant pilot who is pre-
cluded from being a shareholder until he becomes a reg-
istered pilot and one registered pilot who is not a shareholder
by choice. Shareholders, as registered pilots, hold a pref-
erential position over the applicant pilot and pilot boat em-
ployees and receive preferential treatment in comparison. For
example, they may vote in shareholder meetings and may
hold office and they receive substantially higher pay. Their
interests are divergent interests from nonshareholders in that
it is to their interest to keep the pay and benefits of non-
shareholder’s as low as possible to increase the pool of
money to be split between the shareholders each year.
Based on the evidence of record, shareholders who are not
members of the Association board of directors do not partici-
pate in making day-to-day management decisions or policy,
except for the function of electing directors. They do have
the power to elect new board members, as opposed to the sit-
uation in Upper Great Lakes Pilots, Inc. Thus, they may
change existing policies by electing new members of the
board.
I find these differences to be significant and call for a dif-
ferent result than that reached in Upper Great Lakes Pilots.
The shareholders, none of whom as a group can be classified
as minority shareholders, have an effective voice in the for-
mulation of corporate policy, at the very least by their ability
to elect new board members. This voice is wholly absent
from the pilot boat employees and the applicant pilot em-
ployee. The shareholder registered pilots have a homogeneity
of interest which is not shared with the applicant pilot and
pilot boat employees. They also have sufficient numbers to
control the operation of the Union and obviously do, not
even allowing the nonregistered pilots a vote in union affairs.
Respondent Association on brief argues that the case of
Science Applications International Corp., 309 NLRB 373
(1992), calls for a finding that the shareholder employees
should not be considered management employees. I do not
agree. In Science Applications, the stockholder employees
stock holdings accounted for less than 1 percent of the shares
of the involved employer. They clearly could not effectively
control or influence corporate policy. Nor did they enjoy
preferential treatment from nonstockholder employees as is
the case in this proceeding. These differences make Science
Applications significantly distinguishable from the instant
case.
For the reasons set forth above, I find the shareholder-em-
ployee members of the Union to be management employees
properly excluded from the Union. Because of their domina-
tion of the Union, which also has as members non-
shareholder employees of the Association, I find the Associa-
tion has violated Section 8(a)(1), (2), and (3) of the Act and
the Union has violated Section 8(b)(2) of the Act, as alleged
in the complaint.
C. Does There Exist a Disabling Conflict of Interest
Which Precludes the Union from Effectively
Representing Nonshareholder Members?
I also find that the structure of the Union, having as it
does only registered pilots and shareholders in the Associa-
tion as voting members, precludes the Union from effectively
representing the nonshareholder employees. A union must be
able to approach negotiations with the single-minded purpose
of protecting and advocating the interest of employees. Child
Day Care Center, 252 NLRB 1177 (1980); Teamsters Local
688 Insurance & Welfare Fund, 298 NLRB 1085 (1990).
The Board has stated that, if ‘‘a union has allegiances which
conflict with that purpose, we do not believe that it can be
a proper representative of employees.’’ Oregon Teamsters
Security Plan Office, 119 NLRB 207 (1957). It has also held
that:
To establish such a disabling conflict of interests, it is
quite clear from the cases that the union or the em-
ployer need not have effective domination or control
over the other, but merely that there exist the potential
of a conflict or a ‘‘proximate danger of infection of the
bargaining process.’’
Medical Foundation of Bellaire, 193 NLRB 62 (1971); St.
Louis Labor Health Institute, 230 NLRB 180 (1977).
A union having a disabling conflict of interest, which con-
tinues to represent the employee unit and is a party to a col-
lective-bargaining agreement with a union-security clause,
violates Section 8(b)(1)(A) and Section 8(b)(2) of the Act.
Teamsters Local 688 Insurance & Welfare Fund, supra. The
employer that continues to recognize and bargain with such
a union and maintains in effect a collective-bargaining agree-
ment with a union-security clause violates Section 8(a)(1),
(2), and (3) of the Act. Teamsters Local 688 Insurance &
Welfare Fund, supra.
In the instant case, the close relationship among the pilots
who run the Employer’s operation and the pilots who occupy
positions in the union leadership disables the Union from ful-
filling its role of protecting and advocating the interest of
employees, especially the nonshareholder employees. Collec-
tive-bargaining agreements are negotiated between the offi-
cers of the Association and the officers of the Union, all of
whom are registered pilot shareholders in the Association.
The nonshareholder employees are not allowed to vote on
such negotiated agreements. Union officers sit in at board of
directors meetings and as the minutes of such meetings re-
flect, are ‘‘consulted’’ with respect to actions taken. For ex-
ample, the minutes of the December 18, 1990 board of direc-
tors meeting reflect that Union was consulted and was agree-
able to adverse action taken by the board with respect to
Charging Party Hanrahan. The Union’s President Kanaby,
who until the year before his nomination as union president,
was a member of the Association’s board of directors for
several years. He was nominated by the Association’s presi-
dent, who also put him on the Association’s screening com-
mittee temporarily for the purpose of deciding Charging
Party Hanrahan’s fitness to become a registered pilot.
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 The shipping season for oceangoing vessels in the Great Lakes
begins with the opening of the Saint Lawrence Seaway in about the
last week of March and ends with the closing of the Seaway about
December 20.
10 Hanrahan was laid off for the 1991 shipping season, a layoff
which is contended to be unlawful.
In short, for the reasons set forth above, the Union suffers
from a disabling conflict of interests and cannot fulfill its
legal obligations as bargaining representative of its nonpilot
members. Its continuing representation of the unit and en-
forcement of its contract with its union-security clause vio-
lates Section 8(b)(1)(A) and (2) of the Act. Likewise, the As-
sociation’s continuing recognition of the Union and maintain-
ing the existing contract would also be violative of Section
8(a)(1), (2), and (3) of the Act.
D. Did the Association and/or the Union Violate the
Act in Treatment of Charging Party
William Hanrahan?
The basis for this proceeding lies in the treatment of the
Charging Party by the Association and subsequent problems
he encountered in seeking representation by the Union.
Charging Party Hanrahan was discharged, reinstated, laid off,
discharged again, reinstated (under order of the Coast Guard)
and he was denied the Association’s requisite recommenda-
tion to move from applicant pilot status to U.S. registered
pilot status. At the core of this case is the representation af-
forded Hanrahan by the Union in response to these acts of
the Association, and the relationship between the Association
and the Union, which General Counsel contends fatally taints
the actions of both.
1. The Association refuses to recommend Hanrahan for
registration as a U.S. registered pilot and
terminates/permanently lays him off
Hanrahan first was associated with Lakes Pilots in October
1987 during his vacation from another employer. He worked
14 days as an applicant pilot trainee. In this capacity he ob-
served a licensed pilot perform his duties. The pilot, who is
licensed by the U.S. Coast Guard, controls oceangoing ves-
sels in the area of the Great Lakes for which he is licensed
which corresponds to the District established by the Coast
Guard, in the instant case, District 2. After the 14-day trial
period, Hanrahan returned to his then employer, Inland Lakes
Management Corporation where he was employed as a pilot
for lake vessels for 11 years. This pilotage was performed
under a license issued by the Coast Guard, but which does
not authorize pilotage of oceangoing vessels.
In April 1988, Hanrahan became employed by Lakes Pi-
lots as an applicant pilot. In this capacity, he was issued an
‘‘Applicant Pilot Card’’ by the Coast Guard. Under Coast
Guard rules, a person desiring to become a U.S. registered
pilot, the status of the other pilots in the Association, must
undergo three shipping seasons of training by the Association
and then be recommended for registration. Hanrahan was
hired by Daniel Coleman, then president of Lakes Pilots.
Coleman told him at his time of hire of the 3-year progres-
sion to achieve his registration. According to Hanrahan’s un-
derstanding, his training would be the responsibility of the
Association’s ‘‘screening committee,’’ which is composed of
the three most senior pilots in the Association. His first sea-
son was the 1988 shipping season.9 He thereafter worked full
time as an applicant pilot for the Association during the ship-
ping seasons of 1989, 1990, and 1992.10 In the performance
of his job, he would be dispatched by an Association dis-
patcher to a particular ship. Hanrahan would go to the ship’s
location and pilot it to destination or to a point where an-
other pilot from another association would relieve him. He
would then stand by for another dispatch. As Hanrahan
gained experience, he would be dispatched to perform pilot-
ing duties alone in some cases, and in others, would be ac-
companied by a registered pilot from the Association, de-
pending on the degree of difficulty involved in the piloting
function.
After taking employment with Lakes Pilots, Hanrahan
joined the Union. Pursuant to the collective-bargaining agree-
ment between the Association and the Union, Hanrahan, as
an applicant pilot was paid a daily rate for work performed,
with pay being made every 2 weeks. His pay differed from
that of registered pilots primarily in that his pay was only
a percentage of the daily rate for registered pilots, 75 percent
in his first year, 85 percent in the second year, and 95 per-
cent in his third year. As only registered pilots may own
stock in the Association, Hanrahan was not able to be a
shareholder in the Association until he became a registered
pilot. Although pilots who are employed by the Association
are supposed to purchase stock in the Association upon be-
coming registered pilots, at least one of the Association’s
registered pilots had not bought stock. Notwithstanding this,
this pilot was paid as if he were a shareholder.
On August 16, 1990, Hanrahan received notice he was to
be laid off. Coleman told him he was to be laid off begin-
ning in September 1990. No one questions that this layoff
was motivated by declining business for the Association. It
was proposed that the four least senior pilots, including
Hanrahan, would be laid off, presumably permanently. The
layoff of Hanrahan and the others was avoided when Cole-
man resigned and three other pilots either resigned or took
voluntary layoff. As a result of these actions, Hanrahan was
able to finish the 1990 shipping season, his third as an appli-
cant pilot. As a result of Coleman’s resignation, Robert
Greene, a member of the Association’s board and a member
of its screening committee, was made president of the Asso-
ciation.
On December 18, 1990, the board of directors held a for-
mal meeting and took up several matters, including making
Paul Singler a director to fill the vacancy caused by Greene’s
ascension to president. They also took up the matter of
Hanrahan. The minutes of this meeting, with respect to
Hanrahan, recite:
Captain Greene called on Captain Waldrop to submit
the Screening Committee report concerning applicant
pilot Captain William Hanrahan. Captain Waldrop re-
ported that the Committee, consisting of Captains An-
derson, Kanaby, Waldrop and Greene, recommended
against registration of Captain Hanrahan. Following dis-
cussion of the report, on motion by Captain Waldrop,
supported by Captain Meyers and passed, the rec-
ommendations of the Screening Committee was accept-
ed. Following further discussion, it was determined that
Captain Hanrahan be immediately laid-off indefinitely
181LAKES PILOTS ASSN.
11 Curiously, the minutes of the screening committee noting the
adverse recommendation regarding Hanrahan reflect that the meeting
took place on December 19, a day after the director’s minutes state
that the recommendation of the screening committee was presented
for action.
and be advised that with the estimated return to duty
of regular fully registered pilots for the 1991 shipping
season, it would be unlikely he would be called back
to work. It was reported that ILA 1921 had been con-
sulted and was agreeable to this action concerning Cap-
tain Hanrahan.
At the beginning of December 1990, the screening com-
mittee consisted of Greene, Anderson, and Lienweber.
Greene testified that because the president does not usually
sit as a voting member of the screening committee, he con-
sidered that there was a vacancy on the committee. He also
testified that Lienweber was in the hospital, creating a tem-
porary vacancy. He therefore appointed Kanaby and Waldrop
to fill these vacancies on a temporary basis. They were in-
formed of their new roles just prior to their meeting on De-
cember 19, 1990.11 Neither Waldrop nor Kanaby had been
on the screening committee for at least 3 years prior to the
December 19 meeting. For this reason, neither of these two
men had been in charge of Hanrahan’s training and they
were not familiar with his competency except from limited
personal observation.
The minutes of the screening committee meeting held on
December 19, 1990, read as follows:
President Robert J. Greene requested a meeting of
the screening committee. The meeting took place on
December 19, 1990 at 1730 hours at the Econolodge,
1800 Miami St., Toledo, Ohio. Present were Robert J.
Greene, President, Victor Anderson, Chairman of the
Screening Committee, Francis Kanaby, Temporary
Member of the Screening Committee, and Milton
Waldrop, Temporary Member of the Screening Com-
mittee. It is the recommendation of the screening com-
mittee that any consideration for registration of William
Hanrahan be denied for the following reasons: l. He is
not cleared for necessary trips for the Maumee River.
2. His anniversary date has not been reached. 3. Senior
pilots will be returning from sick leave in the Spring
of 1991, which will create over-staffing of pilots.
At the December 19, screening committee meeting,
Kanaby had only been on the committee 1 day, having been
appointed to it 2 days before by Greene. Kanaby had not sat
in on any prior screening committee meetings. At the time
of the meeting, Kanaby had never been with Hanrahan on a
trip that traversed the Maumee River and had no independent
knowledge of what Hanrahan’s record on the Maumee might
have been. However, he was opposed to recommending
Hanrahan’s registration. He said Anderson, who had also
been a past president of the Union, told him that Hanrahan
had not completed the required trips. Waldrop testified that
Hanrahan had not taken command of the ships they had pi-
loted jointly and he felt there was something wrong with
this, and he could not recommend Hanrahan. This conflicts
with Kanaby’s version which said there was nothing more to
the negative recommendation than appears in the minutes of
the meeting. I credit Kanaby’s version of what happened at
the meeting and rely on the minutes of the meeting to accu-
rately reflect the screening committee’s motivation. Kanaby
seemed genuinely surprised when he learned for the first
time while testifying herein that the Association, through
Greene, had taken the position with the Coast Guard that it
questioned Hanrahan’s competency to be a registered pilot.
This attack on Hanrahan’s competency seems to me to be
nothing more than an attempt by the Association to shore up
its decision to terminate Hanrahan. Evidence which will be
discussed subsequently strongly indicates that the primary
reason that Hanrahan was not recommended for registered
pilot status was the Association’s board’s desire to lay off or
terminate Hanrahan because of the worsening economic con-
dition of the Association. There is some question whether the
Coast Guard regulations may limit the ability of the Associa-
tion to lay off or terminate registered pilots as opposed to
applicant pilots. This question may have played a part in the
decision of the screening committee not to recommend
Hanrahan.
At the biannual membership meeting of the Union held on
December 19, 1990, Captain Green, president of the Associa-
tion moved to forego the notice requirements of the Union’s
bylaws relating to nominating union officers. This was
passed. Green then nominated F. Kanaby to be union presi-
dent, P. Singler nominated T. Schnell to be union vice presi-
dent, and V. Anderson nominated W. Coppola to be union
secretary/treasurer. These nominations were elected by accla-
mation.
Kanaby had not previously held union office, but had been
on the Association’s screening committee and its board of di-
rectors as late as the previous year. Prior to Singler’s nomi-
nation to be vice president, he had been secretary treasurer
of the Union. According to Hanrahan, Singler was either on
or had been on the Association’s board of directors imme-
diately prior to his union office nomination. Anderson had
been been president of the Union from December 1989 until
he resigned. He was chairman of the screening committee at
the same time.
On January 2, 1991, Waldrop warned Hanrahan that he
might be discharged. Waldrop informed him that the screen-
ing committee had not recommended him for registration to
the Coast Guard and he would likely be terminated before
the 1991 shipping season. Following this warning, Hanrahan
spoke with the chairman of the screening committee, Captain
Anderson, who confirmed what Waldrop had said. According
to Hanrahan’s credible testimony, both men told him he was
not being recommended for registration for the reasons given
in the minutes of the screening committee meeting.
Hanrahan received a letter dated January 10, 1991 (G.C.
Exh. 8) from Captain Greene which reads:
This will confirm the information given you by tele-
phone on Wednesday, January 2, 1991 by Captain
Waldrop concerning the decisions of the directors as to
your registration and lay-off.
At their meeting on December 18, 1990, the Direc-
tors accepted the report of the screening committee and
will not recommend you to the U.S. Department of
Transportation for full registration as a pilot for District
2 of the Great Lakes.
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Art. I(G) of the parties’ collective-bargaining agreement states:
The Company shall have the right to discipline any employee
for cause, subject to the arbitration provision of this agreement.
Art. III(D)(2)(a) addresses the issue of layoffs and reads as fol-
lows:
Applicant and temporarily registered pilots will be employed
and laid off as needs warrant, as determined by the Board of
Directors after consulting with the Union.
Also at the December 18 directors meeting, the Di-
rectors confirmed the decision to lay you off indefi-
nitely, effective at the conclusion of the 1990 season.
At the same time, we wish to advise that if projections
for the 1991 season hold, we would not recall you for
duty when the 1991 season begins and if so, we would
expect to terminate your employment with Lakes Pilots
Association, Inc.
During the lay-off period, your health care, group
life insurance, and disability insurance would be contin-
ued.
We regret having to make these decisions and ask
you not to hesitate to call if you have any questions.’’
Hanrahan received a letter dated February 22, 1991, from
Greene (G.C. Exh. 9), which states:
Further to our letter to you of January 10, 1991, the
Directors have unanimously determined that we would
not be recalling you for duty when the 1991 season be-
gins and therefore, your employment with Lakes Pilots
Association is terminated, effective Midnight, March
30, 1991.
Separately, we will be notifying you of your rights
under COBRA regarding coverage under the company’s
group health insurance plan with Michigan Blue Cross-
Blue Shield.’’
The complaint does not allege that the Association vio-
lated the Act by its actions in regard to terminating or laying
off Hanrahan and refusing to recommend him for registra-
tion.12 The evidence most strongly supports a finding that its
decisions to terminate Hanrahan and not recommend him for
registration were motivated by economic reasons and not by
any union or other protected activity engaged in by
Hanrahan. Hanrahan testified that he told the NLRB that he
was terminated because the Association believed that he
would not buy stock in the Association and would still de-
mand full pay under the contract, that existing shareholders
had an unexpected windfall coming to them as part owners
of stock in another company that held valuable real estate
and feared sharing the windfall with Hanrahan and because
of personal animosity because of his friendship with a former
president of the Union who was unpopular with some of the
other pilots, and because he had complained about his work
assignments, which he consider more onerous than those
given to more senior pilots. I find that of the reasons
Hanrahan believes he was terminated, only the matter of his
friendship with a former union president and his complaints
about his work schedule would be activities protected under
the Act. The evidence of record does not support Hanrahan’s
contentions in these regards. I cannot find any substantial
evidence that Hanrahan’s friendship with the former presi-
dent or his complaints played any part in the Association’s
decision to terminate him. The Association’s declining busi-
ness was documented and I find that it supports the Associa-
tion’s position that Hanrahan was terminated for economic
reasons.
As its Exhibit 14, the Association placed in evidence a
record of Billed Hours for the Association for the period
1988–1992. It shows:
Designated
Hours Undesignated Hours Total Hours
1988 9,590.67 9,739.32 19,329.99
1989 9,538.36 9,773.87 19,312.23
1990 6,840.63 7,226.45 14,067.08
1991 6,436.99 6,855.63 13,292.42
1992 6,579.76 6,722.22 13,301.98
Designated hours are the billed hours in waters ‘‘designated’’
by the Coast Guard as more difficult waters and undesig-
nated hours are the billed hours in waters ‘‘designated’’ by
the Coast Guard as less difficult. The fees charged for the
two classes of hours are different. The exhibit clearly shows
a substantial decline in business beginning in 1990 and con-
tinuing to date. The manner in which the Association chose
to address this problem is clearly its decision. That it chose
to layoff Hanrahan in response may be unfortunate, but it is
certainly not contrary to either the pertinent collective-bar-
gaining agreement or the National Labor Relations Act.
With respect to the proposed layoff of Hanrahan and three
other Association pilots in August 1990, the motivation was
declining business as reflected by Exhibit 14. No one argues
that the August 1990 proposed layoff was motivated by any-
thing but economic considerations.
2. Hanrahan files his first grievance with the Union
Hanrahan responded to this notice of his termination by
filing a grievance with the Union. On March 18, 1991, he
wrote to Union President Kanaby the following:
Enclosed is a copy of a termination notice from the
Board of Directors, Lake Pilots, Inc.
While Lake Pilots, Inc. has the right to lay me off,
I contend that termination is neither legal nor accept-
able.
Since this situation imposes a stigma on 17 years of
professional commitment, my future employment pros-
pects and my family’s continued security, I am im-
pelled to defend my credibility. I am prepared to pro-
tect my rights, before an Administrative Law Judge, if
necessary, and look to Local 1921 for representation.
As a dues paying member in good standing, you may
consider this letter a formal request for legal pursuit of
a wrongful discharge grievance.
Please reply by certified mail so that all parties con-
cerned are protected.
On the same date, Hanrahan also wrote Captain Greene
the following letter:
My decision to leave Inland Lakes Management, Inc.
and join Lakes Pilots, Inc. was based on a candid con-
183LAKES PILOTS ASSN.
versation with then President, Daniel Colman. I stated
that if I came to work at lake Pilots it would be a sin-
cere, long-term commitment. Considering the high fam-
ily stakes involved, I asked that Lake Pilots, Inc. make
the same commitment in return. I then joined Lakes Pi-
lots, Inc. of Port Huron, Michigan.
I purchased a home, moved my family and became
part and parcel of the local community. I honored my
commitment, and Mr. Coleman, representing Lakes Pi-
lots, Inc., honored his.
In August of 1990, that changed.
Mr. Coleman resigned, as many others have since
then.
I continued to service my commitment right up till
the time the last vessel, the Federal Danube, cleared
Lake Erie on December 16, 1990.
During my three year tenure as an applicant pilot, I
have performed my duties in a safe, responsible, and
ethical manner, worthy of any public, professional or
official scrutiny.
I have absolutely, no apologies to make.
Now my credibility has been challenged and my
family’s future has been placed in jeopardy. To be ter-
minated without cause if a completely unacceptable sit-
uation. I am now forced to defend my credibility and
also protect my family’s continued long-term security.
This a most unfortunate situation.
On March 19, Hanrahan again wrote Greene, with a copy
to the then U.S. Coast Guard Director of Pilotage, Captain
Federic J. Grady. This letter sets out Hanrahan’s understand-
ing of the Code of Federal Regulations dealing with registra-
tion of Great Lakes pilots. Citing several of the regulations,
Hanrahan takes the position that only the Coast Guard can
terminate his status as an applicant pilot and that the Asso-
ciation lacks that power. He also asserts that he has com-
pleted all requirements for full registration and will petition
the Coast Guard for an investigation.
On April 5, 1991, Hanrahan wrote again to Kanaby a letter
outlining what he wanted from the grievance he requested be
filed in his behalf. The letter states:
With reference to my wrongful discharge grievance
dated March 18, 1991, please find below a list of rem-
edies to this unfortunate situation.
l. Reinstatement as a fully registered pilot.
2. Back Pay with interest and pension payments.
A. All benefits to resume (medical, dental, pension,
life insurance, license insurance) as a fully registered
pilot.
3. All documented expenses that I have incurred to
defend myself to include—
A. Secretarial services.
B. Outside legal fees.
C. Phone and administrative costs.
4. Letter of apology from the Board of Directors of
Lakes Pilots Association, Inc.
Note: Items 5, 6 and 7 may be considered as sepa-
rate grievances or additions and negotiated separately.
5. $500.00 plus interest—spring meeting expense
payment.
6. $150.00 plus interest—one day’s pay for Decem-
ber 17.
7. $4.00 plus interest—shortage of August, 1990 ex-
pense.’’
The Union, through Kanaby, wrote Hanrahan on April 8,
1991, stating:
I have your letter requesting the Union assist you
with regard to your discharge. The Executive Board of
the union decided that a grievance would be filed on
your behalf and a copy of the letter which was sent to
Lakes Pilots Association, Inc. is enclosed herewith.
The Executive Board has agreed to provide you rep-
resentation in accordance with the By-laws and Con-
stitution.’’
The letter to the Association to which Kanaby refers above
reads:
Interlakes Pilots Local 1921, I.L.A., hereby files a
grievance on behalf of Captain William B. Hanrahan
for breach of the collective bargaining agreement for
wrongfully discharging Captain Hanrahan as a pilot
with Lakes pilots Association Inc. by letter dated March
18, 1991.
The Union demands that Captain Hanrahan be rein-
stated and that he be awarded any lost wages due him
from the date of his termination.
Hanrahan received a letter from the Union dated April 12,
1991, which reads:
The Union has received a letter from Lakes Pilots
Association, Inc. in response to our letter of April 8,
1991 regarding grievance for wrongful discharge. En-
closed please find a copy of said letter.
We feel that the grievance has been reviewed, acted
upon and resolved by the signatory parties to the collec-
tive bargaining agreement.
The letter to which Kanaby refers is from the Association
to the Union, dated April 10, 1991, and which reads:
We acknowledge receipt of your letter of April 8,
1991 presenting a grievance on behalf of Captain Wil-
liam B. Hanrahan.
We advise that effective at Midnight March 31,
1991, Lakes Pilots Association, Inc. proposes to rescind
the termination of Captain Hanrahan and reinstate him
as an applicant pilot.
However, his indefinite lay-off as set forth in our let-
ter to him of January 10, 1991 (A copy of which is en-
closed) will be continued. If the foregoing is agreeable,
Captain Hanrahan’s benefits will be continued without
interruption and there would be no lost wages as a re-
sult of the termination. Please promptly advise if this
proposal is acceptable so that we can notify Captain
Hanrahan.
In making this proposal, Lakes Pilots Association,
Inc. is not admitting that there is a basis for a grievance
or a breach of the collective bargaining agreement and
denies that Captain Hanrahan was wrongfully dis-
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 At the hearing Hanrahan volunteers that he no longer wants the
matter of registration to go to arbitration because the Association
could rig the results. I acknowledge Hanrahan’s fears which I feel
to be justified. However, the mechanics of selecting an arbitration
can be adjusted to achieve a fair arbitration panel.
charged as set forth in your letter and as claimed by
him.
Hanrahan was not consulted by the Union before it accept-
ed this proposed resolution of his grievance. Thus, on April
16, Hanrahan wrote the Union a letter stating:
I acknowledge receipt of your April 12, 1991 letter
and do accept reinstatement subject to the documented
resumption of all prior established benefits.
However, the issue of full registration is not re-
solved.
As I stated in my letter to Mr. Greene dated March
19, 1991, I have completed all requirements for full
registration as stated by Lakes Pilots Association, Inc.
and all requirements for full registration as set forth in
USCG, CFR, Title 46, Subpart (B) paragraphs 401.210
and 401.220—Registration of Pilots.
I steadfastly maintain this position and will continue
to pursue certification as a fully registered pilot. Should
the Board of Directors of Lakes Pilots Association, Inc.
at any time wish to reconsider their position, please
contact me.’’
On April 30, 1991, Hanrahan wrote the Union another let-
ter which reads:
With reference to my letter of April 16, 1991, ac-
ceptance of Lakes Pilots, Inc.’s proposal is contingent
upon the documented resumption of all prior estab-
lished benefits. Please advise Lakes Pilots, Inc. that
documentation and a signed agreement from the Board
of Directors is necessary for reinstatement. If there is
any disagreement, please notify me promptly so that I
may proceed accordingly.
Separately, please send me a copy of the current bar-
gaining agreement in effect with Lakes Pilots, Inc.
The Union has never responded to Hanrahan’s requests re-
garding full registration even though subsequent evidence es-
tablishes that the Union recognized he was asking that the
matter of registration be grieved.
Hanrahan again wrote to the Union of June 17, 1991, ask-
ing:
With reference to my letter of April 30, 1991, I must
assume there is no agreement with Lakes Pilots, Inc.;
therefore, I am requesting this grievance go before an
Arbitration Board to be decided. I shall expect a reply
within fourteen days.13
Hanrahan testified that he never received any written con-
firmation that his termination was rescinded nor that his ben-
efits had been reinstated. The evidence reflects that some of
his benefits were in fact reinstated and one can presume that
his termination was rescinded, though that act had no prac-
tical effect as his layoff continued in effect. The Union ar-
gues that it fairly represented Hanrahan and that it effectively
handled his grievance, contending that all Hanrahan asked
for was to have his termination rescinded. I disagree. The
Union did accept and address Hanrahan’s grievance with re-
gard to his termination. I also find that Hanrahan did not ask
that his layoff be grieved, at least to this point in time. The
Union also correctly points out that the collective-bargaining
agreement gives the Association the right to lay off applicant
pilots at the board of directors’ discretion.
However, the Union did not grieve the Association’s re-
fusal to recommend him for full registration. The Union
takes the position that Hanrahan did not ask that it grieve
this issue and further, that it is not grievable under the con-
tract. I believe that this position is disingenuous. Review of
the following correspondence supports this view.
Hanrahan did not receive a response to his June 17 letter.
However, in late July 1991, he received a handwritten letter
from Union Vice President Tom Schnell on union letterhead.
This letter reads:
Just a note or two. We finally just had a so-called
ex. board meeting of this Local. Kanaby is a worthless
piece of shit. I had not realized he has done nothing (so
to speak) in regards to your situation. John Baker and
the G. L. District are aware of this now, although it still
must be initiated by us here at Local 1921.
I’m going to put as much pressure on this guy
(Kanaby) as I can. We’ve finally got a labor lawyer
(Harold Ross), but haven’t met with him yet. I advised
Frank for him and I (plan) to meet with him soon (next
week), but I continue to be baffled by Kanaby’s action.
I will assume this myself with the help of the executive
board if I can at all possibly do it. Pahel is in agree-
ment—besides myself, but confident observation will
Brad Ell. Coppola—I hope to.
I will do something this week. This has gone far
enough. Your situation—Loftin all of it, I will tolerate
just so much and then I fly—so—hand in there my
friend. I know its difficult times for you, and in essence
though I don’t know what you are going through. I’m
100% in your corner.
I may be leaving myself in the near future??? Not
sure yet.
Clearly, Schnell was speaking to the matter of registration
as the termination of Hanrahan had been rescinded. The
Baker referred to in the letter is John Baker, vice president
of the Great Lakes District of the I.L.A. Hanrahan wrote
Baker on August 2, 1991, asking:
Enclosed are copies of my wrongful discharge griev-
ance and the purported resolve of this problem. I have
requested that this grievance be resolved by an arbitra-
tion panel, per the collective bargaining agreement and
have had no reply. I am now requesting that this situa-
tion be considered at the District level and resolved as
the constitution and contract call for.
On August 23, 1991, Hanrahan received notice from the
Association that he was again being terminated. This letter,
from Greene, reads:
As you are aware, you have been on indefinite lay-
off since the end of the 1990 season. The economic
185LAKES PILOTS ASSN.
14 Kanaby sat in at this meeting, but claims to have had no input
into the decision. Curiously, since he took the position that the ear-
lier discharge of Hanrahan was not authorized under the contract, he
did not protest this discharge.
15 Perhaps further insight into the matter of conflicting interests
can be gleaned from a letter written by Union Vice President Schnell
to Union Secretary/Treasurer Pahel, which, in pertinent part reads:
Responding to the next paragraph concerning valid grievances
and in first part talking with Robert Greene, he (Kanaby) should
give the job to someone else who will talk to him, and if this
is impossible you pursue ways of getting your points across at
a higher level and with the use of legal council [sic]. Besides
Hanrahan’s grievance, the other grievances were also valid and
were totally ignored by Frank (Kanaby), perhaps of the so-called
two hat task that he cannot get himself to accept. All of us wear
two hats, and there is a difference, but when you are in the posi-
tion to wear the union hat, you better wear it as such, just as
when you are in a corporate position, you wear that hat. Frank
Kanaby can not get himself to wear the right hat when it is ap-
propriate and that is the union hat. If you can make that distinc-
tion, you best leave it to someone that can and who will.
To become a functional part of the Union (ILA), you protect
and back to the fullest your membership, no matter what your
personal feelings are, and this is not being done by some mem-
bers of the Executive Board of Local 1921. It is quite obvious
by their actions.
January 24, 1992, a letter was sent to President Kanaby from
Bill Hanrahan regarding his wrongful discharge grievance of
March 24, 1991 and of what he has asked Local 1921 to help
him in. To my knowledge as of this date (February 1992) noth-
ing has been done. All he has asked for is a reply to that letter,
and once more he is being ignored, unless he has since had a
reply.
conditions which prompted your lay-off have continued
and are continuing this year despite fewer pilots avail-
able as a result of retirements and illness. Accordingly,
at the directors meeting on August 23, 1991, it was de-
cided to terminate your employment as an applicant
pilot with Lakes Pilots Association, Inc. The termi-
nation will be effective at Midnight, August 31, 1991.14
Following this action, Kanaby received a letter from Baker
discussing the grievances filed by Hanrahan. This letter,
dated August 27, 1991, reads as follows:
You have requested some guidance in your process-
ing of the grievance of William B. Hanrahan. Without
prejudging this matter on the merits, I would suggest
the following:
1.) The grievance of Capt. Hanrahan under date of
March 18, 1991 deals only with the termination of his
employment by Lakes Pilots Association, Inc. In re-
sponse to the grievance you processed, he was rein-
stated and then layed off. This ended the grievance.
2.) A separate question has been raised as to his fail-
ure to successfully complete his training. He asserts he
has completed it. The minutes of the Board of Directors
of Lakes Pilot’s Association do indicate only that the
Screening Committee recommended against registration
of Captain Hanrahan. Although this question was not
originally raised by Capt. Hanrahan, I see no reason to
require a separate document in order to process this as
a grievance.
A Screening Committee should have latitude in rec-
ommending a pilot for registration. However, the com-
mittee cannot be arbitrary in discharging its function or
refuse to recommend registration for reasons not related
to his training or his abilities as a pilot. If it is a factual
question of whether or not he completed the required
number of trips or trained for the required number of
months, this should be easily established. If the failure
to recommend is based on his lack of skills this should
be documented. In other words, the union should re-
quest some clarification from the Corporation as to why
he was not recommended for registration by the Screen-
ing Committee and why the Corporation did not con-
tinue his training program in the 1991 season.
If this information does not resolve the matter, then
a request for arbitration may be appropriate. This ques-
tion must be decided by your Executive Committee. I
hope the foregoing will be of assistance to you.
I believe the letter from Waldrop to Hanrahan and the let-
ter from Baker clearly shows that the Union was aware of
Hanrahan’s desire to grieve the matter of the Association’s
refusal to recommend him for registration. Similarly, it is
clear that the International Union saw no problem with griev-
ing over this issue. Yet, Kanaby never took any action with
regard to this request, not even to the extent recommended
by Baker. I believe that the reason nothing was done was the
conflict of interest faced by Kanaby. He was part of the
management decision-making process that decided against
recommending Hanrahan and it was against his financial in-
terest as a shareholder to have Hanrahan registered and per-
haps then be forced to reemploy him.15 I believe it is also
the result of the Association’s dominance of the Union. The
Association’s president, Greene, put Kanaby on the screening
committee and virtually placed him as union president. The
evidence reflects that the only time that Kanaby objected to
any of Greene’s actions with respect to Hanrahan was over
Hanrahan’s first discharge. Even that is suspicious because
the testimony of Greene and Kanaby differ on whose idea
the solution to this situation was and the solution arrived at
by the two men kept Hanrahan off the payroll, just as would
have been the effect of termination. Union Vice President
Schnell notes in a letter to Union Secretary/Treasurer Pahel
that Kanaby will not stand up to Greene and ascribes it to
Kanaby’s corporate allegiances.
3. Hanrahan’s efforts on his own behalf with the
Coast Guard
Not satisfied with the Union’s efforts in his behalf,
Hanrahan began pursuing what amounts to an appeal of the
Association’s actions with the U.S. Coast Guard. On April
28, 1991, Hanrahan had written Director Grady the following
letter:
Enclosed is a copy of the minutes of the December
18, 1990, District #2, Lake Pilots Association, Inc.,
Board of Directors Meeting. Highlighted is that portion
of the meeting indicating rejection of my registration by
the ad hoc screening committee. I was never contacted
about the outcome of this meeting until January 10,
1991, a copy of which is enclosed. A subsequent letter
dated February 22, 1991 indicated that I was terminated
as of March 30, 1991. Again, no reason was indicated.
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The ad hoc screening committee that rejected reg-
istration was not approved by the Director of Pilotage
as required by USCC CFR Title 46, Chapter III, Sub-
part B—Registration of Pilots section 401.211, para-
graph (C).
At the spring shareholders’ meeting on March 28,
1991, a motion was made for my registration and sec-
onded but was ruled out of order by President Robert
Greene.
The point is that Pilot Registration and confirmation
has come down to the whim of one individual. I do not
believe this was the intention when the Pilotage Act
was drafted. There are many reasons for the present
state of affairs, too many to list here; therefore, I am
petitioning for an investigative hearing to look into this
and other intentional violations of the Pilotage Act.
In October 1991, Hanrahan received a letter from Director
Grady, which reads:
We have reviewed the matter of your registration as
a U.S. Great Lakes registered pilot in District 2, includ-
ing the materials you have submitted, the recommenda-
tion of Lakes Pilots Association, Inc. and the discus-
sions that Captain Robert North, USCG, had with you
and with Lakes Pilots Association officials.
There are some areas where you and Lakes Pilots
Association agree, and there are areas of disagreement.
I believe that one area of agreement is that an applicant
pilot should be qualified to pilot vessels in the Maumee
River, as well as in the other areas of District 2, before
being registered.
Based on the information available to me, the record
supports your qualification to pilot vessels in most wa-
ters within District 2; however in my opinion, the
record needs to be explicit with regard to your ability
to transit the Maumee River. In an effort to resolve this
matter in the fairest way possible, I am directing Lakes
Pilots Association to provide you the opportunity to
demonstrate your competency in the Maumee River.
This will be done by having you make three one way
trips in the Maumee River (to or from the grain termi-
nals) under the observation of active registered pilots
presently providing pilotage service in District 2. Two
of the registered pilots are to be chosen by Lakes Pilots
Association, and one by you. Prior to making the three
trips, you will be given the opportunity to make famil-
iarization trips in the Maumee River, and elsewhere
within the District if you choose, riding with any other
District 2 pilot. Please submit to me for my approval,
the name of the ‘‘observer’’ pilot you select.
Each of the pilots designated to observe you on these
evaluation trips would provide a detailed report directly
to me describing their view of your competency to pilot
vessels in the Maumee River. The reports are due with-
in 10 days of the completion of each of these three
trips, but in no case later than December 31, 1991.
Because of the unusual nature of this situation, I re-
serve the right to have my representative be present
during the three trips you make with the approved reg-
istered pilot observers. This representative would not
however, be along to determine your competency, but
rather to oversee the process.
Grady sent a similar letter to the Association.
Hanrahan received another letter from Grady dated De-
cember 9, 1991. It reads:
This is in response to your recent letters concerning
your status as an Applicant Pilot within District 2 of the
U.S. Great Lakes pilotage system.
Notwithstanding the actions taken by Lakes Pilots
Association, Inc. to terminate you, I have informed
Lakes Pilots Association that you remain an applicant
pilot as so designated by the Director, Great Lakes Pi-
lotage, on May 31, 1988. Lakes Pilots Association has
the obligation to tender you all emoluments attendant
with such a status as have been afforded you in the
past.
This letter does not affect the directions given in my
letter of October 28, 1991, regarding the opportunity to
be afforded you to demonstrate your competency for
possible registration as a U.S. Registered Pilot. How-
ever, due to the imminent end of the season and your
inability to complete the observation trips into the
Maumee River by December 31, the written reports of
the three check rides will be due not later than 30 days
after the opening of the 1992 season.
Grady sent a similar letter to the Association.
Hanrahan wrote the Association a letter dated December
16, 1991, which reads:
With reference to Captain Grady’s letter of Decem-
ber 9, 1991, the U.S. Coast Guard has ruled
(401.211(e), 401.320 (d)(5)) that I remain an ‘‘Appli-
cant Pilot’’ as designated by the Director in May of
1988 with its associated ‘‘emoluments.’’
I will expect payment of all back wages, special pay-
ments, and pension benefits for the entire 1991 shipping
season by the end of the pay period for December 23,
1991, whichever comes first. Additionally, I will re-
quire all prior established insurance benefits to be in
place as soon as is reasonable by industry standards
with a notification date of December 10, 1991.
4. Hanrahan files a grievance with the Union seeking
backpay based on Grady’s directive
The Association did not pay the backpay demanded. So
Hanrahan requested the Union to pursue the matter for him.
He did this in a letter dated January 24, 1992, which reads:
Re: Wrongful Discharge Grievance—March 18, 1991
Francis (Kanaby),
Article XII - Subject to Regulations, on page 16 of
the current Collective Bargaining Agreement states:
Any and all provisions of this Agreement shall be
subject to any and all rules and Regulations adopted
by the Great Lakes Pilotage Administration and shall
not be construed contrary to such rules and regula-
tions, treaties or laws of the United States affecting
pilotage of vessels on the Great Lakes.
187LAKES PILOTS ASSN.
Captain Fredric J. Grady (USCG) Director of Great
Lakes Pilotage (GLP) representing the United States
Code of Federal Regulations, Chapter III, Parts
401.211(e) and 401.320(d)(5) has ruled that I remain an
Applicant Pilot as designated by the Director GLP and
that Lakes Pilots Association Inc. has the obligation to
tender all emoluments attendant with such a status as
have been afforded in the past.
As is stated in my grievance dated March 18, 1991,
‘termination is neither legal nor acceptable.’
As a member in good standing, I again demand that
the Union Local 1921 act on recovering all back pay,
special pays, pension contributions and all other bene-
fits due me.
Please reply by certified mail within ten business
days.
The Union never responded to this letter nor did it take
any action in response to it.
Grady wrote to Hanrahan in a letter dated February 11,
1992. It reads:
My December 9, 1991 letter advised you that ‘‘Not-
withstanding the actions taken by Lakes Pilots Associa-
tion, Inc. to terminate you, I have informed Lakes Pi-
lots Association that you remain an applicant pilot so
designated by the Director, Great Lakes Pilotage, on
May 31, 1988. Lakes Pilots Association has the obliga-
tion to tender you all emoluments attendant with such
a status as have been afforded you in the past.’’
So that there is no misunderstanding of that letter,
Lakes Pilots Association has been instructed to confer
upon you the same status you had when Lakes Pilots
Association purported to fire you in 1990, i.e., the same
status you held during those times you were generating
revenue for Lakes Pilots Association. This means you
must be afforded all rights and benefits to which you
were entitled just prior to your purported firing. This
would include, but not be limited to, use of Lakes Pi-
lots Association facilities such as dispatching services
and pilot boats, as well as entitlement to all personal
benefits such as remuneration, insurance coverages, etc.
The Coast Guard will not get involved in any dispute
that you might have with Lakes Pilots Association re-
garding your demand for back pay or other ‘‘past’’ ben-
efits for the period between your purported firing and
the date of reinstatement. Matters such as those con-
stitute a private civil matter between you and Lakes Pi-
lots Association and should be resolved in whatever
manner or forum either of you determine to be nec-
essary.
Lakes Pilots Association put Hanrahan back to work on
April 1, 1992, and he worked as an applicant pilot for the
1992 shipping season. He never received a response from the
Union regarding his request that a grievance be filed over the
matter of backpay.
On August 11, 1992, Hanrahan received the following let-
ter from the then director of Great Lakes Pilotage for the
U.S. Coast Guard:
Your letter dated July 10, 1992, addressed to Admi-
ral Kime and regarding the issue of your registration as
a Great Lakes registered pilot, has been referred to me
for response.
Our position is that you have not satisfied the re-
quirements contained in 46 CFR Parts 401.220 and
402.220 of the Great Lakes pilotage regulations with re-
spect to round trips in the Maumee River. As indicated
in the letter to you dated October 28, 1991, from the
Director, Great Lakes Pilotage (Director), we feel that
the record needs to be explicit regarding your ability to
transit the Maumee River. In an effort to resolve this
matter in the fairest way possible, the Director identi-
fied the mechanism and process for you to demonstrate
your competency in the Maumee River.
‘‘Positions’’ 1 and 2 of your July 10, 1992 letter
were considered by the Director prior to his letter to
you and Lakes Pilots Association, Inc. (LPA) dated Oc-
tober 28, 1991, regarding the provisions for determining
the demonstration of your competency in the Maumee
River. You have been advised numerous times that the
provisions described in the Director’s letter remain
valid.
As I understand it, the matters which arose on July
10, 1992 are as follows: (1) A vessel was expected to
be transiting the Maumee River inbound on July 12,
1992, and was also expect to be transiting the Maumee
River outbound shortly thereafter. (2) With the matter
of your registration in mind, LPA contacted you to ad-
vise you of the vessel’s movement, and to determine
your desires with regard to the demonstration of your
competency in the Maumee River. (3) LPA was unsuc-
cessful in determining your desires with regard to your
demonstration of competency in the Maumee River
aboard this particular vessel and contacted the staff of
the Director. (4) The Director’s staff attempted to con-
tact you, but was unsuccessful until receiving the fac-
simile transmission of your July 10, 1992 letter.
In ‘‘position’’ 3 of your July 10, 1992 letter, you in-
dicate that you will not comply with the Director’s let-
ter of October 28, 1991. This is to advise you that you
must successfully complete the provisions for determin-
ing the demonstration of your competency in the
Maumee River described in the Director’s letter to you
dated October 28, 1991 prior to December 31, 1992.
If you do not comply with the Director’s directive of
October 28, 1991 by December 31, 1992, or if you do
comply, but it is determined that your are not com-
petent to pilot vessels in the Maumee River, your tem-
porary registration will not be renewed, and your appli-
cant pilot ID card will be withdrawn or not renewed.
If you do comply with the Director’s directive of
October 28, 1991 by December 31, 1992, and if it is
determined that you are competent to pilot vessels in
the Maumee River, you will be fully registered for all
waters of Pilotage District 2.
Hanrahan received another letter from the Coast Guard di-
rector dated October 22, 1992, which reads:
This is in response to your faxed letter of October
6, 1992, regarding familiarization rides on the Maumee
River.
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 This conveniently ignores the position taken by International
Union Vice President Baker in his August 1991 letter to Kanaby.
17 The letter was directed to Kanaby and requested the Union
grieve the Associations refusal to give him backpay.
In accordance with the October 28, 1991 letter to
you and Captain Greene, you are allowed to make fa-
miliarization trips on the Maumee River riding with any
District 2 pilot. However, this does not confer upon you
the right to assign the pilot duly scheduled to provide
pilotage service during these trips. You have been al-
lowed to choose the District 2 pilot who will be riding
with you only when you are completing one of your
demonstration of competency trips.
Captain Greene was in compliance with the Direc-
tor’s letter of April 1, 1992.
As far as the record is concerned, Hanrahan’s appeal to
the Coast Guard is still being processed. It does not have any
bearing on the outcome of this proceeding.
Although it has no direct bearing on the issues herein, the
following document placed in the record is interesting with
regard to the changing positions of the Union with regard to
Hanrahan. Pursuant to a complaint filed with the Inter-
national Union, it prepared a report dated June 26, 1992,
which reads:
Pursuant to your letter of April 7, 1992 instructing
us to investigate the alleged ‘‘improprieties’’ of L-1921,
Dack Gabel, Vice President, Great Lakes District and
James M. Piscioneri, Secretary/Treasurer, Great Lakes
District, reviewed all correspondence received from
President Frank Kanaby, L-1921 and William B.
Hanrahan, member of L-1921 and have arrived at a de-
termination that L-1921 did whatever they were asked
to do to protect Brother member Hanrahan.
The grievance Brother Hanrahan filed with L-1921
was to stop the corporation (Lakes Pilots Association)
from terminating his employment.
Local 1921 acted on this grievance and persuaded
the corporation (Lakes Pilots Association) to reinstate
Mr. Hanrahan.
Mr. Hanrahan agreed with the decision handed
down, but had reservations about his certificate as a full
registered pilot.
All other correspondence concerning certification as
a full registered pilot and his dissatisfaction as to not
being certified as a full pilot with back pay, benefits,
etc., were directed to Captain Greene, President of
Lakes Pilots Association and no grievance was filed
with L-1921 on this matter.16
Please refer to Collective Bargaining Agreement,
dated April 2, 1991, Article 1-C, also Article III, Sec-
tion D.
Brother Hanrahan’s health and insurance benefits
were in effect until his discharge in August of 1991 and
then restored in March of 1992.
Mr. Hanrahan did state in his letter of April 16, 1991
to Francis Kanaby that he, Bill Hanrahan, had met all
of the requirements for full registration as a certified
pilot.
It was further determined by this hearing that the
only grievance filed by Mr. Hanrahan on March 18,
1991 was handled properly by L-1921.
Mr. Hanrahan was re-instated as he originally re-
quested.
A letter of January 24, 1992, Mr. Hanrahan again re-
quests recovery of back pay, special pay, pension con-
tributions and all other benefits due him. This is the
grievance letter and it was directed to Captain
Greene.17
In referring to Article III, D-2, (A), The Board of
Directors has the right to lay off an applicant pilot.
Local 1921 further states that they have no Bargaining
Agreement with the U.S. Coast Guard. Local 1921
states that they will abide by their contract.
In conclusion this committee finds that if Mr.
Hanrahan followed proper procedures concerning the
Local 1921 and the corporation (Lakes Pilots Associa-
tion) in attempting to resolve these issues, it would not
have been necessary to go to the N.L.R.B. as Mr.
Hanrahan did. The issues would have been resolved by
a neutral arbitrator.
[Para. omitted.]
5. Conclusions with respect to the treatment of
Hanrahan by the Association and the Union
Based on all the evidence presented, I find that the Union
has failed to fairly represent Hanrahan when it failed to
grieve the matter of the Association’s refusal to recommend
him for registration and its refusal to grieve for backpay as
a result of Grady’s order to the Association to reinstate
Hanrahan. I find the reasons advanced by the Union for its
failure to process the grievances are pretextual and the true
reasons lie in the conflict of interests which exist by virtue
of the union officers and in particular, its president, being
shareholders in the Association. I also find that the failure
to fairly represent Hanrahan was the result of the domination
of the Union by the Employer, which is reflected by the
domination of Kanaby by Greene. Thus, I find the Union’s
actions in this regard to be based on considerations which are
arbitrary, invidious, irrelevant, and unfair, causing the Union
to discriminate against its member Hanrahan because of his
status as a nonshareholder employee of the Association. By
its failure or refusal to fairly represent the Charging Party,
the Union has violated Section 8(b)(1)(A).
Although the collective-bargaining agreement gives the
Association the right to lay off applicant pilots, Grady’s di-
rective gave Hanrahan at least an arguable right to backpay.
The record in this proceeding is not complete enough to de-
termine whether Hanrahan would succeed in a grievance
over backpay and therefore I will not recommend that the
Union be ordered to make him whole in this fashion because
of its failure to pursue his grievance. However, I will rec-
ommend that Union be ordered to process to arbitration the
matter of backpay for the 1991 shipping season and the mat-
ter of the Association’s refusal to recommend Hanrahan for
registration. As noted in the Baker letter to Kanaby dated
August 27, 1991, the matter of Hanrahan’s competence is not
what is at issue in determining the correctness of the Asso-
ciation’s action with regard to the recommendation. Based on
the screening committee’s minutes, an arbitration panel
would only have to decide whether (1) Hanrahan did serve
189LAKES PILOTS ASSN.
the requisite amount of time in training to qualify under the
Coast Guard regulations, (2) Hanrahan did pilot vessels in
Maumee River for the requisite number of trips, and (3) lack
of sufficient business to continue Hanrahan’s employment is
justification under the Coast Guard regulations to refuse to
recommend Hanrahan for registration. Further, the Associa-
tion’s General Rule 15(b) requires:
No recommendation that a pilot be fully registered
shall be submitted to the Director of Great Lakes Pilot-
age Staff until such recommendation shall be approved
by the affirmative vote of the shareholders present in
person at an annual or special meeting of the sharehold-
ers called in accordance with the by-laws of the Asso-
ciation.
There was never a vote of the shareholders on the decision
of the board of directors not to recommend Hanrahan, at
least not with notice that the matter would be considered at
such meeting. This apparent violation of the rules could also
be considered by an arbitration panel.
I find that the reasons that the Union did not pursue
Hanrahan’s requested grievances are not to be found in their
excuses given at the hearing, but in the conflicting interests
held by Union President Kanaby and the other union officers.
As pointed out clearly by Union Vice President Schnell in
his letter to fellow Union Officer Pahel, Kanaby was unable
to carry out his duty to fairly represent Hanrahan because of
his corporate position as a shareholder.
Hanrahan has objected to the arbitration procedure cur-
rently in place as it allows the Association to select one
panel member, the Union to select one and to have one dis-
interested member. I agree with Hanrahan’s objection be-
cause of the conflict of interest which exists with respect to
the Union’s relationship with the Association. I would rec-
ommend that any arbitration which results from this decision
be before a panel consisting of one Association panelist, a
disinterested panelist selected as called for by the collective-
bargaining agreement and a panelist chosen from the Inter-
national Longshoremen’s Union. The International does not
have a conflict of interest as does the Local Union.
Although arbitration of the matter of Hanrahan’s rec-
ommendation for registration may not result in the Coast
Guard extending registration to him, it will at least be a vehi-
cle to determine fully whether the Association’s action was
truthful and honest. With this information, the Coast Guard
may decide that its check ride directive was unnecessary or
revise it in some manner to give Hanrahan another oppor-
tunity to qualify for registration. As matters now stand, the
Coast Guard cannot be sure why Hanrahan was not rec-
ommended.
E. The Association’s 10(b) Defense
Charging Party Hanrahan filed an unfair labor practice
charge on April 30, 1991 (Case 7–CA–31833) alleging that
the Association violated the Act by, among other things, dis-
charging him ‘‘without cause’’ and by ‘‘assuring [this] cor-
porate objective by ‘‘controlling’’ the Union. Specifically,
this charge states:
1. I was discharged without cause.
2. After filing a wrongful discharge grievance, I was
not notified at any time between the filing supposed re-
solve of the grievance by the President of the Union
and the President of the Corporation.
3. The President of Union Local #1921 was nomi-
nated and elected at a meeting of which I was given
no notice.
4. The President of the Union was nominated by the
President of the corporation.
5. The President of the Union Local is a recent,
former member of the Board of Directors of the cor-
poration.
6. The vacancy created on the corporate board was
filled by the new President of the corporation.
7. Of the seven members present at the unannounced
Fall Bi-Annual election meeting [of the Union]—all are
direct stockholders in the corporation.
8. Of the twenty-two members in the ILA Local,
fourteen are stockholders in the corporation. Only fif-
teen of the twenty-two are allowed to vote, fourteen are
corporate stockholders.
9. Arbitration of any grievance is binding and final
by a 3 member panel. The 3 member arbitration panel
is made up of 1 corporate rep, 1 union rep, and 1 out-
side rep. Since the Union is controlled by corporate
stockholders and picks the union rep, the corporation
will end up with 2 corporate reps virtually assuring cor-
porate objectives in any final and binding grievance.
Although the April 30, 1991 charge alleged that its spe-
cific factual allegations constituted a violation of Section
8(a)(1) and (3) of the Act, as part of its investigation, the
Board looked into the possibility of domination by the Asso-
ciation of the Union. As a result of the investigation, the
Acting Regional Director of Region 7 concluded that ‘‘fur-
ther proceedings are not warranted’’ and dismissed the
charge. He noted that:
[T]he Charge also raises the possibility that the Em-
ployer has dominated Interlakes Pilots District No. 2,
Local 1921, ILA, AFL–CIO, the Charging Party’s’ col-
lective bargaining representative, by nominating mem-
bers for the office of president, and by having a former
member of the Employer’s Board of Directors now
serving as the Union’s president. Inasmuch as domina-
tion of a labor organization of a labor organization by
an Employer violates the NLRA, these matters were
considered in our investigation of the instant charge.
The Acting Regional Director found no evidence of domi-
nation, explaining:
The investigation demonstrated that Lakes Pilots was
incorporated with the purpose of providing services to
ocean going vessels on the Great Lakes. Lakes Pilots
employs approximately 12-18 registered pilots. Pursuant
to federal regulations, these pilots are shareholders of
the corporation as well as employees. In addition, the
pilots are also members of the Local 1921, ILA. There
is no evidence within the last six months that any offi-
cer or member of the board of directors of the corpora-
tion simultaneously served as an officer of the Union.
Because of the small number of shareholders in the cor-
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
poration, all of whom are also Union members, ap-
proximately 50% of the shareholders/members will hold
office as either an officer of the corporation or an offi-
cer of the union at any given time. Given the close knit
nature of this operation, I do not find it violative of the
Act for the President of the corporation to have nomi-
nated an employee shareholder member for the office of
President of the Union, nor do I find it violative that
the current President of the Union was a former mem-
ber of the corporate board.
Hanrahan appealed this decision and his appeal was de-
nied. On March 9, 1992, he filed a second charge against the
Association, alleging that the Association unlawfully domi-
nated Local 1921. The Acting Regional Director issued a
complaint as a result of this charge. Respondent contends
that consideration of the allegations of domination of the
Union by it are barred by Section 10(b) of the Act, citing
Ducane Heating Corp., 273 NLRB 1389 (1985). I agree to
an extent. The operative facts in this case which I believe es-
tablish a disabling conflict of interest and an unlawful rela-
tionship between the Association and the Union were in large
part alleged in the dismissed complaint and known by the
Region at the time of the dismissal. On the other hand, evi-
dence in support of the March 9, 1992 charge includes the
refusal of the Association to award backpay and lost benefits
for the 1991 shipping season even in light of Director Gra-
dy’s directive and evidence of the Union’s refusal to grieve
that decision. The March 9, 1992 charge alleges discrimina-
tion because of domination of the Union by the Employer.
This timely evidence was used to support the proposition that
there exists a disabling conflict of interest and domination of
the Union by the Employer is not time-barred. Thus there ex-
ists an independent basis for the timely charge. I find that
the charge brought on March 9, 1992, is closely related to
the earlier dismissed charge and therefor the earlier allega-
tions are not time-barred. The otherwise untimely allegations
involve the same legal theory as the timely charge, the un-
timely allegations arise from the same factual circumstances
as the timely charge and each would require the same or
similar defense. Nickles Bakery of Indiana, 296 NLRB 927
(1989).
Moreover, the limitations defense is not available to the
Union herein, and a finding that its relationship with the Em-
ployer would require a similar finding with respect to the As-
sociation. For the reasons stated above, I do not accept Re-
spondent Employer’s 10(b) defense.
CONCLUSIONS OF LAW
1. Respondent Lakes Pilots Association, Inc. is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent Interlakes Pilots Association District No. 2,
Local 1921, International Longshoremen’s Association,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. At all times material, the Respondent Union has been
the exclusive collective-bargaining representation for Re-
spondent Employer’s employees in the following unit:
All pilots and pilot boat (auxiliary) personnel em-
ployed by the Association, excluding office clerical em-
ployees, managerial employees, guards and supervisors
as defined in the Act.
4. By extending recognition to the Respondent Union,
which is controlled and dominated by its members who are
also shareholders and management employees of the Re-
spondent Employer, and which members exercise control
over nonshareholder members, the Respondent Employer has
interfered with the administration of, and has rendered un-
lawful assistance and support to the Union in violation of
Section 8(a)(1) and (2) of the Act.
5. By maintaining and enforcing a collective-bargaining
agreement with Respondent Union which requires the em-
ployees covered thereby as a condition of employment to be-
come and remain members of the Union, and which covers
wages, hours and working conditions for employees in the
above described unit, which includes non-shareholder em-
ployees, the Respondent Employer has violated Section
8(a)(1), (2), and (3) of the Act.
6. Because of the relationship between Respondent Em-
ployer and Respondent Union, there has resulted a disabling
conflict of interest which has interfered with Respondent
Union’s ability to represent nonmanagerial unit employees,
Respondent Employer has engaged in conduct in violation of
Section 8(a)(1), (2), and (3) of the Act and Respondent
Union has engaged in conduct in violation of Section 8(b)(2)
of the Act.
7. By providing free office space and telephone service to
the Respondent Union, the Respondent Employer has vio-
lated Section 8(a)(2) of the Act.
8. By being a party to and enforcing a collective-bargain-
ing agreement with a union-security clause, despite the dis-
abling conflict of interest found above, the Respondent
Union has engaged in conduct in violation of Section
8(b)(1)(A) and (2) of the Act.
9. By its failure and refusal to process the grievances filed
with it by its member William Hanrahan, the Respondent
Union has breached its duty of fair representation in viola-
tion of Section 8(b)(1)(A) of the Act.
REMEDY
Having found that the Respondent Employer has engaged
in activity in violation of Section 8(a)(1), (2), and (3) of the
Act, I recommend it be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate the
policies of the Act. It is recommended the Employer cease
and desist from permitting registered pilot shareholders, in-
cluding those in direct managerial positions and those who
vote as shareholders in matters affecting the bargaining unit,
from occupying positions in Respondent Union, or otherwise
interfering with the administration of Respondent Union. It
is further recommended that Respondent Employer cease and
desist from giving effect to and enforcing the collective-bar-
gaining agreement in effect between it and the Respondent
Union to the extent that it applies to registered pilot share-
holders. Respondent Employer should also cease and desist
providing the Respondent Union with free office space and
telephone service.
Having found that the Respondent Union has engaged in
activity in violation of Section 8(b)(1)(A) and 8(b)(2) of the
Act, I recommend that it be ordered to cease and desist
therefrom and take certain affirmative action designed to ef-
191LAKES PILOTS ASSN.
fectuate the policies of the Act. I recommend that Respond-
ent Union be ordered to, upon request of the Charging Party
William Hanrahan, process his grievances over backpay and
other benefits lost by his termination or layoff for the 1991
shipping season, and over the Respondent Employer’s deci-
sion not to recommend him to the U.S. Coast Guard for reg-
istration as a U.S. registered pilot, to arbitration, if necessary.
I further recommend that the Union be ordered to have the
International Longshoremen’s Association pick the arbitration
panelist which the Respondent Union is entitled to pick
under the parties’ collective-bargaining agreement, with the
proviso that no registered pilot employee of the Respondent
Employer nor a shareholder in Respondent Employer may
fill this position. The Union should be ordered to cease giv-
ing effect to and enforcing the collective-bargaining agree-
ment to the extent it covers registered pilot shareholders in
the Employer.
[Recommended Order omitted from publication.]