Longshoremen Ila Local 1294 (International Terminal)

National Labor Relations Board - Board Decisions

May 10, 1990

298 N.L.R.B. 479 (N.L.R.B. 1990)

LONGSHOREMEN ILA LOCAL 1294 (INTERNATIONAL TERMINAL) 479
Local 1294, International ]Longshoremen 's Associa-
tion, AFL-CIO and Theodore A. Testo, Jr., and
International Terminal Operating Co., Inc.,
Party to the Contract . Case 3-CB-5219
May 10, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 13, 1989, Administrative Law
Judge Julius Cohn issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
The judge found, and we agree, that the Re-
spondent Union did not violate Section 8(b)(1)(A)
and (2) of the Act by causing International Termi-
nal Operating Co., Inc., the Employer, to remove
Charging Party Theodore Testo from the position
of safety man. Testo had served as safety man from
1983 until January 2, 1988. He was removed from
the position after internal union elections in No-
vember 1987, in which he unsuccessfully sought
the Respondent's presidency.
The position of safety man is established by con-
tract. According to the contract the safety man is,
inter alia, empowered to correct unsafe working
conditions and to resolve disputes between the par-
ties at the pier level. We agree with the judge that
the safety man position is equivalent to that of a
shop steward, and therefore the Respondent could
legitimately consider loyalty in determining wheth-
er Testo should be removed from the position of
safety man. See Teamsters Local 282 (General Con-
tractors), 280 NLRB 733 (1986), remanded sub
nom. Kudla v. NLRB, 821 F.2d 95 (2d Cir. 1987)
(remanded for determination of whether loyalty
standard was applied arbitrarily); Shenango, Inc.,
237 NLRB 1355 (1978).
The General Counsel argues that the Respondent
caused the removal of Testo from the safety man
position for unlawful reasons. The General Counsel
submits that the Respondent was not concerned
about Testo's loyalty and that the Respondent's
loyalty and "team player" argument was merely an
after-the-fact argument. The General Counsel fur-
ther contends, inter alia, that any application of a
loyalty standard by the Respondent was arbitrary
and invidious. In making this argument, the Gener-
al Counsel points out that the Respondent initially
offered the job to John Andolino, the newly elect-
ed secretary/treasurer, who had run on the same
opposition slate as Testo. The General Counsel
argues that the Respondent's loyalty concern must
be a sham if it was willing to have another member
of the opposition slate serve in the safety man posi-
tion.
We disagree. In fact, by offering the job to An-
dolino (who turned it down), the Respondent dem-
onstrated that its decision was not based on the
past expression of dissenting views per se but
rather on other loyalty factors rationally related to
suitability for the job. During the campaign, Testo
had engaged in a level of personal invective (in-
cluding obscene epithets) against James Keleher,
the reelected incumbent, that made it highly unlike-
ly the two could establish a good working relation-
ship. Since any informal safety grievances not re-
solved by the safety man would have to be consid-
ered in subsequent stages by the Respondent's
elected officers, the Respondent acted for legiti-
mate reasons, and not arbitrarily, in seeking to
ensure that the position would be held by someone
who could work amicably with others involved in
the grievance-handling process.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Alfred M Norek, Esq., for the General Counsel.
Dominick Tocci, Esq., of Albany, New York, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge. This pro-
ceeding was tried at Albany, New York, on October 19
and 20, 1988. Upon a charge filed by Theodore A. Testo
Jr. (Testo), on January 22, 1988, and served on January
25, 1988, the Regional Director for Region 3 issued a
complaint on March 2, 1988, and an amendment to the
complaint on June 27, 1988, alleging that Local 1294,
International Longshoremen's Association, AFL-CIO
(the Union or Respondent), violated Section 8(b)(1)(A)
and (2) of the Act. The complaint alleges that Respond-
ent caused International Terminal Operating Co., Inc.
(ITO or Company), to discharge Testo from a position,
called "Safety Man," because of his internal union activi-
ties in opposition to Respondent's leaders, and further be-
cause the collective-bargaining agreement unlawfully re-
quires that the position of safety man be held by a
member of the Union, and for reasons other than his fail-
ure to tend periodic dues and initiation fees.
298 NLRB No. 64
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent filed an answer to the complaint as
amended denying the commission of unfair labor prac-
tices.
All parties were given an opportunity to participate,
produce relevant evidence, examine and cross-examine
witnesses, file briefs, and argue orally. Briefs submitted
by the General Counsel and Respondent have been care-
fully considered.
On the entire record, including my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
1. JURISDICTION
i ITO is a Delaware corporation maintaining an office
and place of business at the Port of Albany, State of
New York, where it has been engaged in the business of
providing stevedoring services for the loading and un-
loading of ships in interstate and foreign commerce.
During the year preceding the issuance of the complaint,
ITO derived gross revenues in excess of $1 million of
which more than $50,000 was derived from the perform-
ance of stevedoring services for companies engaged in
interstate and foreign commerce, including United
Brands Company from which ITO obtained gross reve-
nues in excess of $50,000. The complaint alleges, Re-
spondent admits, and I fmd that ITO is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION
Respondent admits and I fmd that it is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Augustine Crocco, retired president of Respondent
who held that office for a period of 21 years from 1961
through 1981, testified that, in the early 1960's, he and
the Company negotiated a section in the collective-bar-
gaining agreement which provided for the selection of a
member of the Union to "correct any unsafe working
condition that may be brought to his attention." It is
agreed that the holder of this job was and is known as
the "the Safety Man." This proviso as contained in the
current collective-bargaining agreement between the
Union and ITO and which is very relevant to the dispo-
sition of this proceeding, reads as follows:
The Union shall have the right to select one
member apart from the regular gangs to represent
the membership during ship operations. He shall be
empowered to correct any unsafe working condi-
tion that may be brought to his attention. He shall
handle any dispute between the parties and resolve
such disputes at the pier level. When such disputes
cannot be resolved at the pier level, he shall present
them for arbitration through the Arbitration and
Grievance machinery, and see that there is no stop-
page of work while such disputes are being arbitrat-
ed, except that to continue to work may endanger
the lives of the men, then the dispute shall be imme-
diately adjusted by the parties. He shall see that all
the terms of this agreement are faithfully carried
out by both parties. He shall have the right to con-
sult with other officers on the job if any deviation
to any condition herein is to be considered.
ITO has been engaged for a number of years at the
Port of Albany, New York, unloading freight ships that
come to the Port, mainly banana boats and ships trans-
porting Volkswagen vehicles. For this purpose ITO em-
ployess longshoremen which are hired during shapeups
at the docks whenever a ship arrives. The longshoremen
only work, of course, when a ship is there for the pur-
pose of unloading. However ITO also employs people,
members of Respondent Union, in various capacities
such as mechanics, on a 40-hour-per-week basis. The
safety man is also considered a full-time job, even though
he only works when ships are in port, since his duties
relate solely to safety aboard the ships doing the unload-
ing procedures. It is agreed that the safety man is ap-
pointed to the job by ITO upon the recommendation of
the Union, and there is no indication that ITO ever re-
fused to select the Union's choice. The first safety man,
appointed during the Crocco regime, was William
McGahay, who held the job from 1961 until his retire-
ment in October 1984. At the time of his appointment
McGahay was also secretary-treasurer of the Union, a
position he held until 1983.
When McGahay retired, James Keleher, then president
of the Union, assumed the safety man position himself
and held it from October 1984 until March 1985. At that
time, Charging Party Testo, who was secretary-treasurer
since 1983, was appointed as the safety man.
Testo testified with regard to his duties as safety man
that he started 8 a.m. each day and checked out the
working conditions of the particular ship at a dock with
specific reference to general safety. He would also check
with the deckmen, but if they or any other members of
the crew had a problem they would usually go to him,
and he would then take it up with the hiring stevedore
of ITO on the waterfront. Most often the two were able
to work it out on-the spot. According to Testo, although
he was familiar with the grievance procedure and the
terms of the contract, he never had to pursue further any
grievance. In fact he claimed that he did not have any
grievance handling responsibilities. Wallace Turnwall,
vice president and port manager of ITO, in his testimo-
ny, condirmed the manner in which the safey man is ap-
pointed, and further stated that he also had discussion
concerning safety matters with the safety man which
have always been resolved between the two of them.
Union policy was generally determined by an Execu-
tive Board consisting of the four elected officials and
three trustees also elected.
B. The Facts
The facts in this proceeding are basically uncontro-
verted. In November 1987, after nominations conducted
in October an election was held for officers of the Union
for a 3-year term commencing January 1988. Testo ran
LONGSHOREMEN ILA LOCAL 1294 (INTERNATIONAL TERMINAL) 481
for president on a slate in opposition to Keleher who
headed his own slate, and a third candidate, Louis
Crocco. The election was a close one with Keleher vic-
torious by a vote of 55 to 54 for Testo and 31 for
Crocco.
It appears that the campaign was hotly contested and
indeed vituperative . In this regard a number of union
members testified that in the course of individual conver-
sations they had with Testo, the latter made remarks and
statements to the effect that Keleher was stupid , an idiot,
incompetent, an ass hole; that Keleher had "shit for
brains"; that he lacked adequate knowledge of the labor
agreement provisions , and more of the same. On the
other hand, in December , after the election , Testo's
brother , Michael , stated that in response to rumors, he
telephoned Keleher and asked what was going to be
done about his brother. Michael specifically asked what
Keleher was going to do about the safety man job and
whether he was going to run his brother out of it. Ac-
cording to Michael, Keleher asked "What would he do?"
Michael further reminded Keleher concerning Ted
Testo's physical condition in that he had a bad back
which did not permit him to perform longshoreman type
of work. He states that Keleher replied that Testo should
have thought about it , and then in response to a further
inquiry as to whether he intended to "bury" Testo, Ke-
leher said "Yes." Furthermore in his own testimony, Ke-
leher stated that he regarded Testo as a disloyal person
because the latter supported and worked for him when
he, Keleher, ran against previous President Crocco.
Testo did this despite the fact that he had been assisted
by Crocco in obtaining employment as well as going for-
ward in union affairs.
In the latter part of December , according to Wallace
Turnwall, vice president and port manager of ITO, Ke-
leher came to him and recommended that Willie McDuf-
fie be appointed to the job of safety man. He states that
he asked Keleher whether McDuffie would devote full
time to the position and being assured that McDuffie
would do so , and upon consideration and the receipt of a
letter from Keleher formalizing this recommendation,
Turnwall agreed to the appointment.
With regard to his recommendation , Keleher stated
that he had first offered the position to John Andolino
who had been just selected as secretary-treasurer after
running on Testo 's slate . Andolino refused the job be-
cause he was already working on a full-time, 40-hour,
position. Keleher said he offered the safety man job to
the two next senior members of the Union, both of
whom refused. Accordingly, he then decided on McDuf-
fie who had been a member of the Union for 40 years,
and the latter accepted . In his letter of recommendation
Keleher wrote it had been "established" that the safety
job go to the financial secretary, and also testified orally
to that effect. Keleher averred that he recommended
McDuffie rather than Testo, because he wanted some-
body with whom he could work closely and trust. In
support of this decision he related the conversations he
had with people who informed him of the derogatory re-
marks made by Testo during the campaign.
When Testo came to work on January 2, 1988, he was
informed by Vice President Vincent that he had just
heard McDuffie had been appointed as safety man, Testo
requested that Vincent , who had run for vice president
on the same slate as Testo, determine what occurred.
Vincent was able to have a meeting with the executive
board, during which Keleher said that Andolino, though
secretary-treasurer, did not want the job, and that
McDuffie was appointed on the basis of seniority after
two senior members had rejected the position. Vincent
also stated that, during the meeting , Michael Fitzimmons,
recording secretary of Respondent , said that since Testo
lost the election , and is no longer secretary-treasurer, he
should not retain the safety man job.
Somtime after, Testo filed a grievance concering his
loss of the safety man job . In accordance with contract
procedure , this matter was heard by an arbitration panel
of two union representatives who were appointed by
President Keleher and two employer representatives. A
meeting of the panel was conducted on February 4,
1988 , and a determination was made that "no further
action should be taken and that the appointment of Mr.
William McDuffie should stand."Vincent further testified
that he was president at the arbitration , and that Keleher
and Fitzimmons again told the panel that the reason for
Testo's removal was that he was no longer the secretary-
treasurer, and had lost the election.
C. Analysis
The overriding issue raised by this proceeding is
whether the safety man , despite the nomenclature, shall
be considered in the same manner as a shop steward,
with all the ensuing rights , privileges, and duties- Gener-
al Counsel contends Respondent 's claim that he safety
man is a shop steward was made as an afterthought,
raised only at the trial and in its brief, and not during the
investigation . There is no time bar to a contention so
long as it is made while the proceeding is still pending
particularly since it was brought up by Respondent's wit-
nesses during the trial itself. Of course on occasion this
may reflect on credibility. In this case, some of Respond-
ent's officials had made statements, particularly t the ar-
bitration panel hearing Testo's grivevance, that he had
been let go as safety man because he was no longr secre-
tary-treasurer of the Union. However, credibility may
not be a large issue in this proceeding after an analysis of
the safety man position , its duties and responsibilities.
As noted, the safety man position was created in a col-
lective-bargaining agreement made in the early 1960's.
The agreement provides that the Union may "select one
member to represent the membership during ship oper-
ations." He was empowered "to correct any unsafe
working condition." Moreover it continues "He shall
handle any dispute between the parties and resolve such
disputes at the pier level ." He could bring unresolved
disputes to arbitration through the contract grievance
procedures. Also, he would see that all the terms of the
agreement are carried out by both parties. By the clear
language of this section of the contract, it appears that
the safety man has all the powers that a shop steward
would normally have and carry out.
There is some testimony to the effect that Testo, as
safety man, never brought a grievance to arbitration. On
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the other hand there is also uncontradicted evidence that
nearly all grievances or disputes were actually solved by
the safety man with the ITO supervisor or other official
on the spot. In this connection is should be noted that
grievances and resulting arbitration, if necessary, are nor-
mally handled by the executive board of this Union. As
previously indicated the executive board consisted of the
elected officers and also three elected trustees of the
Union. Since the Port of Albany was the only location
serviced by this Union, and all of the officers would usu-
ally be employed by ITO, at any given moment there
would be a number of union officials at the piers or on
the ships. Any employee who had a grievance could
bring his complaint to an available officer. Actually this
seems to have been the case in this situation . The fact
that a safety man may not have filed a formal grievance
does not mean he was not empowered to do so, or better
yet, had not resolved the problem at the lowest level
with his opposing company official.
Finally, the instant case may be compared to the situa-
tion in Shenango, Inc., 237 NLRB 1355 (1978), in which
the Board equated the position of "Chairman of the
Safety Committee" to that of a steward, and stated that
"The Union does have a legitimate interest in placing in
offices such as chairman of the safety committee those
people it considers can best serve the Union and its
membership." In addition the Board found in Teamsters
Local 282 (General Contractors), 280 NLRB 733 (1986),
that a position of working Teamster Foreman (WTF) is
equivalent to a steward. In that case the contract provid-
ed that the WFT's could handle all grievances at the job-
site and that they are responsible for safety matters and
administration of the collective-bargaining agreements at
the site. Again as noted, the contract in this case specifi-
cally provided that the safety man act similarly. Even if
we were to assume that the safety man herein only acted
concerning safety matters, the results would be the same.
There is no question but that the safety man resolved dis-
putes with employer representatives at the jobsite. Ac-
cordingly, I fmd that the safety man should be consid-
ered as equivalent to a jobsite shop steward.
The ultimate issue then is whether the Union can dis-
place the safety man or steward despite his involvement
in internal activity such as running for president, and
campaigning vociferously for that position.
As the Board stated in Shenango, supra, and followed
in Teamsters Local 282, supra, "The Union is legitimately
entitled to hostility or displeasure towards dissidents in
such positions where teamwork, loyalty, and cooperation
are necessary to enable the Union to administer the con-
tract and carry out its side of the relationship with the
employer." Testo's repetitious name calling and state-
ments of opinion concerning Keleher's ability as presi-
dent would clearly indicate that his loyalty to the
Union's elected officials would be questionable. In this
connection, it further appears that the application of a
"loyalty standard" to Testo would not be an arbitrary
conclusion.
The General Counsel contends that the paragraph in
the contract which provides for the selection of a union
"Member" to the safety man position is per sea violation
of the Act because it limits the position to members. The
Board has found that not every employment condition
on union membership is illegal. Ashley, Hickam-UHR
Co., 210 NLRB 32, 33 (1974). As long as the appoint-
ment is not arbitrary or invidious, and the union has a
legitimate reason for placing an experienced person at
the jobsite, it would not be invalid. In the instant case,
Respondent used a loyalty standard to eliminate Testo,
which I find to be reasonable on this record, and not ar-
bitrary.
Accordingly, having found that the safety man posi-
tion is similar to that of shop steward, and the loyalty
test should be applied in this case, I recommend that the
complaint be dismissed.
CONCLUSIONS OF LAW
1. ITO is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The complaint is dismissed in its entirety.
1 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings,, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses