Longshoremen ILA Local 1426 (Carolina Atlantic)

National Labor Relations Board - Board Decisions

Jun 24, 1992

307 N.L.R.B. 948 (N.L.R.B. 1992)

948
307 NLRB No. 144
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1989 unless otherwise indicated.
2 Shortly thereafter, CATS obtained Jones through Olsten Tem-
porary Employment Agency to perform container maintenance and
repair work. The record shows that Jones went on CATS’ payroll
in January 1989, although Jones’ status was apparently never com-
municated to the Respondent.
3 It is undisputed that the hiring hall operated on a nondiscrim-
inatory basis, that longshore laborers were referred on a daily basis
whenever there was a barge to be on- or off-loaded, and that con-
tainer mechanics who were referred and found acceptable were put
on the requesting employer’s own payroll.
4 The judge noted that both parties during the hearing interchange-
ably referred to ‘‘permanent’’ employees as ‘‘full time’’ employees,
and to ‘‘temporary’’ employees as ‘‘part time’’ employees. The
record does not show that the exact nature of the part-time employ-
ees’ employment was clarified at the May 15 meeting, although the
judge credited testimony that the Olsten Temporary Employment
Agency was referred to in that meeting.
5 The testimony does not indicate that the part-time employees
were specifically identified at the meeting. CATS subsequently ap-
prised Local 1426 that it had mistakenly identified Dennis Smith as
a full-time employee instead of Roy Schutz, and secured Local
1426’s agreement for it to retain Schutz on the condition that no em-
ployee already referred from the hiring hall be let go. It appears that
Smith, who in fact was an Olsten employee, also continued employ-
ment after being identified as part time.
International Longshoremen’s Association, Local
1426 (Carolina Atlantic Transportation) and
Eula Benjamin Jones, Jr. Case 11–CB–1789
June 24, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On September 30, 1991, Administrative Law Judge
Robert G. Romano issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the General Counsel did not
prove the complaint allegation that the Respondent,
International Longshoremen’s Association, Local 1426
(Local 1426), unlawfully caused the Employer, Caro-
lina Atlantic Transportation (CATS), to discharge em-
ployee Eula Benjamin Jones Jr. on May 16, 1989,1 and
he accordingly dismissed the complaint. We find merit
in the General Counsel’s contention that under Austin
& Wolfe Refrigeration, 202 NLRB 135 (1973), Local
1426’s insistence on retroactive application of its hir-
ing hall clause caused the Company to discharge Jones
in violation of Section 8(b)(2) and that this conduct
also restrained and coerced employees in the exercise
of their Section 7 rights, in violation of Section
8(b)(1)(A).
The record, in brief, shows that in the spring of
1988 CATS commenced port operations at several lo-
cations, including Wilmington, North Carolina, and
discussed using longshore labor with 1426 President
Willie Sloan. Sloan offered copies of separate contracts
for longshore labor and for container maintenance re-
pair, but CATS replied that it employed only one con-
tainer repair mechanic2 and so was interested in con-
tracting solely for longshore labor.
Local 1426 supplied CATS with longshoremen
through its hiring hall in 1988 and early 1989 while
the parties were engaged in negotiations for a
longshore collective-bargaining agreement. However,
when in mid-March the parties broke off negotiations
and Local 1426 engaged in 4 to 6 weeks of picketing,
the source of CATS’ longshoremen was changed from
Local 1426’s hiring hall to temporary employment
agencies, such as the Olsten agency.
Contract negotiations between CATS and Local
1426 resumed in late April or early May, with Presi-
dent Shinn and Vice President Gautier representing
CATS, and President Sloan and Vice President Vaught
representing 1426. These negotiations led to the execu-
tion of a nonretroactive contract on May 12 providing,
inter alia, for exclusive referrals of longshoremen and
container maintenance and repair mechanics.3
On May 15, the parties met to discuss application of
the May 12 contract to CATS’ stipulated unit of long-
shoremen and container maintenance and repair me-
chanics. The discussion focused on the container main-
tenance work, with Gautier indicating that CATS had
three full-time and two part-time employees,4 and ask-
ing if Local 1426 would agree to allow them all to re-
main on the job. Sloan’s response is set forth in the
following affidavit in evidence:
Shinn and Gautier told me . . . they had three
full time and two part time mechanics. And as I
recall Ben Jones was one of those people. . . .
Shinn and Gautier asked me if I would agree to
allow those men to stay on the job. I said no, that
I would not agree to it because we had a hiring
hall agreement and that I had qualified men to fill
the jobs who were not working. I did not say that
I would not accept the men in the Union. I said
I would not allow the Company to keep those
men on the jobs.
Sloan thereafter moderated his position and agreed
with CATS’ request to continue to employ its full-time
employees, who were identified to him as Dobson,
Whitman, and Smith. At no time, however, did Sloan
retract his opposition to CATS’ continued employment
of part-time mechanics.5 Jones was informed of his
949LONGSHOREMEN ILA LOCAL 1426 (CAROLINA ATLANTIC)
6 The judge also recited testimony by Gautier regarding his expres-
sion of CATS’ interest at this meeting in a discussion of union mem-
bership or ‘‘membership protection’’ for its five mechanics, and
Sloan’s refusal to grant union membership to Jones. In light of our
findings below, we find it unnecessary to pass on whether Local
1426’s denial of membership for Jones played any role in CATS’
discharge of him.
7 The judge also opined that the hiring hall here encompassed fill-
ing CATS’ future part-time or temporary employee needs for unit
work previously performed by part-time or Olsten temporary em-
ployees, and accordingly, it makes a difference whether Jones was
a full-time or temporary employee and whether the Union had, or
should have had, knowledge of his permanent status.
8 Because it is unclear on the record whether Carolina Atlantic
Transportation is still in business, we shall defer to the compliance
stage of this proceeding the determination whether there is an entity
to whom Respondent can direct this traditional request for reinstate-
ment remedy. See Carpenters Local 2396 (Tri-State Ohbayashi), 287
NLRB 760, 767 (1987).
termination that same night in a telephone call from
Supervisor Westbury.6
The judge found that Sloan’s admission in his affi-
davit that he would not allow CATS to keep all of its
mechanics related to the Union’s position, subse-
quently moderated, on how its hiring hall applied to
mechanics generally. Thus, the judge found that Local
1426’s ultimate position was that only full-timers be
retained. He further found no convincing evidence that
Sloan was told that Jones was a full-time employee;
consequently, he concluded that Jones could be reason-
ably viewed by the Union as part time (or still tem-
porary). The judge rejected the General Counsel’s
claim that Austin & Wolfe, above, prohibits the appli-
cation of a new contractual hiring hall arrangement in
a manner which adversely affects the job status of
part-time or temporary employees who were then in
CATS’ employ. The judge, relying on Seatrain Termi-
nals, 205 NLRB 814 (1973) (which allowed an em-
ployer to change a steady employee to a casual, effec-
tively returning that employee to a hiring hall for non-
discriminatory referral), ruled that it is permissible for
a union to negotiate for recurrent referrals to meet on-
going part-time or temporary employment needs.7 The
judge concluded that although there is evidence that
the Union was seeking to have part-time and tem-
porary jobs filled by referrals, the General Counsel had
failed to show that this objective was unlawful or that
it caused or attempted to cause CATS to take the job
action against Jones because he was not a union mem-
ber, as alleged in the complaint.
We find, in agreement with the General Counsel,
that the judge erred in finding that Austin & Wolfe did
not apply to the facts in this case. Austin & Wolfe did
not differentiate between full-time and part-time em-
ployees in condemning the retroactive application of
the hiring hall, but focused solely on the fact that the
union had requested that the employees in question be
discharged. The Board in that case set out its holding
in a clear, unconditional statement: ‘‘[T]he discharge
of an employee at the insistence of a union because he
had not been referred by the union’s hiring hall . . .
is the plainest kind of discrimination.’’ Id. at 135. It
is beyond doubt that Local 1426’s initial resistance to
CATS’ retention of any maintenance mechanics was
inconsistent with its obligations under Austin & Wolfe.
We see no basis for finding that Local 1426’s efforts
were other than discriminatory when they were applied
to part-time employees, especially as the record shows
that the exact nature of these employees’ job tenure
was neither clarified nor discussed. In particular, we
find that Seatrain Terminals, relied on by the judge, is
not relevant to the facts of this case. In Seatrain, the
employee was hired after the effective date of the hir-
ing hall agreement. After hire, the status of an em-
ployee was changed so as to require his return to the
hiring hall. In the present case, the employee was hired
prior to the effective date of the agreement, and no ef-
fort was made to modify the status of part-time main-
tenance mechanics. Under the hiring hall procedure,
maintenance mechanics were referred out and retained
by the employers, and there was no requirement that
these mechanics return to the hiring hall for daily or
recurrent referral. Further, it is beyond dispute that
Local 1426 did not attempt to change the status of
CATS’ part-time mechanics in any way other than to
seek their discharge because they had not been referred
out of the hiring hall. As in Austin & Wolfe, this ‘‘is
the plainest kind of discrimination,’’ and there is no
need for the General Counsel to establish additional
proof of unlawful motivation.
We find, therefore, that Local 1426’s demand that
its hiring hall agreement be applied retroactively to all
but full-time container maintenance and repair mechan-
ics unlawfully caused CATS to discharge Eula Ben-
jamin Jones, in violation of Section 8(b)(2) of the Act
and that this conduct also restrained and coerced em-
ployees in violation of Section 8(b)(1)(A) of the Act.
CONCLUSION OF LAW
By causing the Company to discriminate against
Eula Benjamin Jones by discharging him on May 16,
1989, and by restraining and coercing employees in the
exercise of rights guaranteed them by Section 7 of the
Act, the Respondent Union has engaged in unfair labor
practices within the meaning of Section 8(b)(2) and
(1)(A) of the Act, respectively.
THE REMEDY
Having found that the Respondent has caused the
discriminatory discharge of Eula Benjamin Jones on
May 16, 1989, we shall order the Respondent to notify
Carolina Atlantic Transportation in writing, with a
copy to Jones, that it has no objection to his hire and
that it requests Jones be hired.8 We shall further order
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 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.’’ 1 All dates are in 1989 unless otherwise indicated.
the Respondent to make Jones whole for any loss of
pay and other benefits he has suffered by reason of the
discrimination, by payment to him of a sum of money
equal to the amount of wages he would have earned
but for the discrimination, in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest to be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, International Longshoremen’s Association,
Local 1426, Wilmington, North Carolina, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Causing, or attempting to cause Carolina Atlantic
Transportation to discharge, or otherwise deny employ-
ment to, any employee, or in any other manner dis-
criminate against any employee in regard to his hire,
tenure of employment, or any term or condition of em-
ployment.
(b) 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 policies of the Act.
(a) Make Eula Benjamin Jones whole as provided in
the remedy section of this decision.
(b) Notify Carolina Atlantic Transportation that it
has no objection to its hiring Eula Benjamin Jones and
request that it do so.
(c) Post at its usual membership meeting place cop-
ies of the attached notice marked ‘‘Appendix.’’9 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 11, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Sign and return to the Regional Director suffi-
cient copies of the notice for posting by CATS, if will-
ing, at all places where notices to employees are cus-
tomarily posted.
(e) 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
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 cause or attempt to cause Carolina
Atlantic Transportation or any other employer to dis-
criminate against any employee by discharge or other-
wise.
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 reimburse Eula Benjamin Jones for any
loss of pay he suffered by reason of the discrimination,
with interest.
WE WILL notify Carolina Atlantic Transportation
that we have no objection to its hiring Eula Benjamin
Jones and WE WILL request that it do so.
INTERNATIONAL LONGSHOREMEN’S AS-
SOCIATION, LOCAL 1426
Donald R. Gattalaro, Esq., for the General Counsel.
A. A. Canoutas, Esq., of Wilmington, North Carolina, for the
Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge. This
case was tried in Wilmington, North Carolina, on April 16
and June 14, 1990. The charge was filed by Eula Benjamin
Jones, an individual Charging Party (Jones), against Inter-
national Longshoremen’s Association, Local 1426 (Local
1426 or Respondent Union) on July 19, 1989.1 The com-
plaint issued on October 31.
The complaint alleges that on or about May 15, Respond-
ent Union attempted to cause, and caused, Carolina Atlantic
Transportation (the Employer or CATS) to discharge its em-
ployee Jones in violation of Section 8(a)(3) of the Act, be-
cause Jones was not a member of ILA Local 1426 and that,
thereby, Respondent Union has violated Section 8(b)(1)(A)
and (2) of the Act.
The issues arise in context of numerous factual disputes
regarding Union’s transition in providing an exclusive hiring
hall referral service in May for the Employer’s longshore and
maintenance operations at Wilmington, North Carolina. In re-
cently negotiated contract(s), the parties agreed that the
Union would provide an exclusive hiring hall referral service
to CATS’ maintenance shop and longshore operation. Under
an earlier agreed, but interrupted contract (subscription agree-
ment), the Union had exclusively referred temporary or cas-
951LONGSHOREMEN ILA LOCAL 1426 (CAROLINA ATLANTIC)
ual help to the Employer’s longshore operation of loading
and unloading containers on barges (only), while the parties
negotiated a full agreement. Other factual and legal issues
arise on further union claims made with regard to the Em-
ployer’s maintenance employees (and contrary to the claim
of the counsel for the General Counsel that the Union said
it would not allow CATS to continue to employ its mainte-
nance employees), that the Union agreed to CATS’ continued
employment of all named full-time employees in mainte-
nance, but the Union defends in light of its negotiated con-
tract to provide casual or temporary employees for the Em-
ployer’s maintenance operation. The Union need not agree
that the Employer continue part-time employees in employ-
ment.
Numerous credibility questions arise because of conflicts,
inconsistencies, and confusion in evidence presented by both
parties, e.g., on full-time versus part-time, and/or on perma-
nent versus temporary status of container mechanics em-
ployed by CATS, or as may be shown employed by other
employer(s) but working for and at CATS’ maintenance fa-
cilities. The Union has not only questioned Brown’s full-time
employment status with CATS in material times, but also the
Union claims that if Brown was then actually a full-time
CATS’ employee, Brown was not mentioned by the Em-
ployer as a full-time employee in the crucial all-party meet-
ing (disputedly) held on May 15 when local issues were first
discussed and, if it be determined it was some time later
mentioned to the Union, it was then said at a time when the
Employer had already assigned Brown to a nonunit job.
Record conflict also arises on contended but disputed union
membership solicitation, and union acceptance of certain me-
chanics into membership, but not others, e.g., Brown.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent Union on
or about August 2, 1990, I make the following
FINDINGS OF FACT
I. JURISDICTION
CATS is a North Carolina corporation with a facility in
Wilmington, North Carolina, where it is engaged in arrang-
ing for transportation of containerized freight in interstate
commerce pursuant to arrangements with common carriers,
each of which operates directly between and among various
States of the United States. In the material period, CATS an-
nually derived gross revenues in excess of $50,000 from its
above operations. The complaint alleges, and Respondent
Union in answer and/or at hearing admits, and I find that
CATS is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The principals
a. The Employer
CATS operated port facilities at San Juan, Puerto Rico,
Wilmington, North Carolina, and Savannah, Georgia. CATS
maintained headquarters at Wilmington, and it had signifi-
cant, if not main, customers in Puerto Rico. Though CATS
was initially promoted by Clint Abernathy, William Edwards
was president during material operations in 1988. Edwards
occupied that position until January when Tom Shinn be-
came CATS’ president. CATS hired Ed Gautier as a labor
consultant on April 3, on a 90-day contract. Within that term,
CATS hired Gautier as its vice president in charge of all port
operations and administration. CATS has regularly employed
a work force of between 30–33 employees.
b. The Unions
(1) Respondent
Respondent Local 1426 is a longshoremen’s local serv-
icing Port Wilmington. Willie Ervin Sloan is, and has been,
president of Local 1426 for 10-1/2 years. Clayton Alfred
Vaught Sr. has been a longshoreman for about 22 years.
Vaught is currently vice president and business agent of
Local 1426. As the business agent, Vaught oversaw the hir-
ing (hall) for Local 1426. Thus, Vaught regularly worked
with (various) management on orders for, and in dispatch of,
labor from Local 1426. In material times, Local 1426 nor-
mally ran an 11-man gang on management’s order for long-
shoremen.
(2) The other involved Unions
ILA Local 1338 is also a longshoremen’s local, and it
services nearby Southport. However, Local 1338 has a labor
share agreement with Local 1426, by virtue of which, essen-
tially, Local 1338 fills every fourth gang on management
order. Local 1426 and Local 1338 are otherwise separate
locals. Local 1338 does not rely on Local 1426 for men.
Henry Rose is president of Local 1338. ILA Local 1776 is
a clerks’ and checkers’ union servicing (apparently) both
Port Wilmington and Southport. Jerry Hammonds is presi-
dent of Local 1776.
Sloan in no capacity speaks for Clerks and Checkers Local
1766, nor does its president Hammonds speak for Sloan or
Local 1426. They each have their own contract. Though the
two Unions negotiate jointly, in the sense they sit in on each
others’ meetings, they don’t comment on each others’ con-
tracts.
There were three other (comparable) ILA local unions that
serviced Savannah, and on that account, participated in the
certain negotiations at Savannah described below. The Sa-
vannah ILA Locals appear otherwise as essentially not mate-
rial to the matters raised in the instant proceeding.
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
c. The 1988 start of negotiations
Sloan and CATS first entered into discussion concerning
the employment of ILA-referred employees at CATS facili-
ties around April 1988. At that time, Abernathy of Raleigh,
North Carolina, came to Sloan’s office and told Sloan that
he had put CATS together, and he wanted to consider using
ILA labor. A lengthy discussion followed, during which
Sloan gave Abernathy a copy of the applicable contracts.
Sloan told Abernathy initially that the Union would nego-
tiate with him not only for the employees necessary to per-
form (longshore) loading and discharging of the vessels
(barges transporting containerized freight for CATS), but also
to perform all labor required for container maintenance and
repair. To that end, Sloan gave Abernathy a copy of the ap-
plicable ILA deep sea (longshoremen) contract, and the ap-
plicable (container) maintenance contract. The contract cov-
ering clerks and checkers was to be separately negotiated by
the involved ILA clerks and checkers union(s). Several meet-
ings and discussions followed.
Approximately 1–2 months later, William Edwards, who
was (then) president of CATS, got directly involved in nego-
tiations. At first, Sloan met with both Edwards and Aber-
nathy in negotiations a couple of times, without the parties
coming to an agreement.
At some, probably early point in such negotiations, Ed-
wards told Sloan that Edwards didn’t know anything about
maintenance container repair. Edwards then informed Sloan
that Edwards was negotiating with some companies that were
involved in maintenance container repair. Edwards told Sloan
that Edwards was going to sign a contract either with the
Union for the maintenance repair, or he was going to sign
a contract with one of the local maintenance container repair
companies already established in Wilmington.
At some equally early point in the negotiations Edwards
informed the Union that CATS (at that time) employed only
one container repair mechanic. Local 1426 Vice President
Vaught has testified without contradiction that when CATS
started operations, he (presumably Edwards) had told the
Union that (Charles) Dobson was the only mechanic they
employed.
In August 1988, the Union agreed to start (supplying long-
shoremen for) the loading and discharging of CATS’ vessels
under the following circumstances. Edwards called Sloan and
told Sloan that Edwards had a barge coming in. Sloan was
in Washington, D.C., at the time. Sloan told Vaught to pro-
vide the labor, and when Sloan got back to Wilmington, they
would continue the negotiations.
Although the parties hadn’t completed contract negotia-
tions, Respondent Local 1426 (and apparently Local 1338)
agreed to work or supply longshoremen (but notably not any
maintenance container repair mechanics), under terms of an
agreed-on ILA subscription agreement which was signed by
CATS, and which was to remain in effect while the parties
continued to try to complete negotiation of their first regular
contract. Vaught confirmed that Respondent had not initially
supplied any mechanics to CATS and that the parties’ origi-
nal agreement didn’t cover them. (To extent certain of
Gautier’s initial testimony may indicate that the Union sup-
plied longshoremen without a contract, it vacillated, was later
effectively retracted, and is not credited.) When Local 1426
started supplying longshoremen to work the barges about
August 1988 under the above subscription agreement ar-
rangement, Abernathy left the schene. Negotiations were
thereafter conducted directly with Edwards, and continued
until early 1989, but still without the parties’ reaching agree-
ment.
In October 1988, CATS had work for another container
mechanic. Charging Party Jones performed this work at
CATS, but as a temporary employee, employed by another
company, below. Presently I find that in the interim, starting
in August 1988, in return for ILA supply of longshoremen
labor to CATS on call, CATS had agreed to pay all current
contract wages and fringe benefits for longshoremen, until
the parties could negotiate a regular complete contract.
d. The hiring hall operations
In general, once management and the Union reach an
agreement, management begins calling the union hall for all
of its required labor and the Union will dispatch men from
the union hall to a company jobsite to meet stated manpower
requirements.
Under the parties’ interim subscription agreement, the
longshoremen were picked and referred to CATS to perform
the work of loading and unloading barges under the fol-
lowing (regular) hiring hall system. On a daily basis (when
labor was needed), CATS’ management called the union hall
and told the Union how many men they would need. The
Union posted the available jobs on the board. On the next
morning, through an operative gang system, the necessary
men were picked by a foreman, who rotated.
The men in all currently established gangs are all union
members, though vacancies in gangs are filled by seniority,
be the individual Union or nonunion. Acknowledging North
Carolina is a right-to-work State, Sloan confirmed you don’t
have to be a unionman to work, and Sloan testified relatedly,
and without apparent contradiction, that Local 1426 works
plenty of nonunionmen.
With regard to employment of container repair mechanics,
according to Sloan, a company basically decides who they
want. If the company asks the Union to refer such men, the
Union does. If the container repairmen that the Union refers
are acceptable, they are put on the company’s payroll and,
if not acceptable, the company sends them back to the hall.
If the men referred are qualified, a company usually keeps
them.
In January (1989) Shinn joined the Company as president.
In January, CATS apparently put temporary mechanic Jones
directly on CATS’ payroll as a full-time employee. The
Union continued negotiations with Shinn in March. On
March 16 or 17, contract negotiations broke off; and Local
1426 put up picket lines. There is conflict between CATS’
vice president Gautier and Local 1426’s vice president
Vaught over the reasons for the March breakdown in nego-
tiations.
Gautier initially stated in resumed hearing, CATS’ dispute
in early April with the ILA was over employment opportuni-
ties at CATS’ Wilmington, North Carolina, and Savannah,
Georgia facilities. (Gautier did not initially timely respond to
the General Counsel’s subpoena.) Gautier claims the ILA ba-
sically wanted both the stevedore and terminal work there;
they wanted jurisdiction over the jobs CATS had there, to
put ILA people to work, and they wanted a contract. On
cross-examination, Gautier clarified it was in March 1989,
shortly before his arrival, that the ILA had informed CATS
953LONGSHOREMEN ILA LOCAL 1426 (CAROLINA ATLANTIC)
of certain terms and conditions that CATS would have to
meet in order for ILA to continue to work the vessels, and
it was about the time he showed up (as consultant) that man-
agement determined that the Company could not afford to
meet those demands at the risk of going out of business.
Gautier relates that to try to achieve its goals, the ILA
then picketed for a period of at least 4 to 6 weeks. In de-
scribing the picketing during that time, Gautier summarizes
that after a time, things got pretty hectic here (in Wil-
mington) and more so in Savannah.
Vaught saw and described the reason for the parties’ labor
dispute that arose in March quite differently. Vaught relates
that their (subscription) agreement stopped because CATS
had a problem with the ILA on paying the agreed royalty
(fringe benefits), and Vaught asserts that at that time, CATS
had also decided that they would go another way in off-load-
ing the barges. One morning, CATS just didn’t order any
more labor from Local 1426, and they just started to move
men down to work on the barges. It was then that the ILA
put up an informational picket line.
After a 4–6 week period of time, the parties again met,
and resumed their negotiations. The first time Sloan saw
Gautier was in the (resumed) contract negotiation meeting
they held in Savannah, which Sloan has recalled as around
the last of April, or first of May, and which I find was more
likely early May. Present at resumed negotiating meetings
held in Savannah were union officials from all six of the in-
volved ILA Locals, namely, the three ILA Locals from Wil-
mington and three ILA Locals located in Savannah.
The parties stipulated that a unit that would include the
longshoremen and container maintenance repairmen em-
ployed at Wilmington, excluding supervisors as defined in
the Act, is an appropriate unit for the purposes of collective
bargaining. (Clerks and checkers are in a separate appropriate
unit, and they are covered by separate agreement as nego-
tiated by separate checker union(s).)
Sloan and representatives of other longshoremen unions
entered into nonretroactive contract(s) with CATS on May
12, which if not effective that day, was (were) pragmatically
effective on May 13 (Saturday). Shinn and Gautier signed for
CATS. By contract terms, the union(s) were to provide all
labor for the loading and/or discharging of barges and me-
chanics for container maintenance and repair. Any checker
required would be provided under Checkers’ contract.
e. Interim change in Jones’ employment
Charging Party Jones started working for (at) CATS in
October 1988 as a container repair mechanic. Jones did so
initially as a temporary employee, i.e., an employee who
though working at CATS’ facility was actually employed by
another company. Olsten Temporary Employment Agency
(Olsten) directly employed and paid Jones at this time.
CATS did not employ Jones as a full-time CATS’ employee
until the next year, apparently first, sometime in January.
The parties relatedly early stipulated that Jones’ W-2 wage
and tax statement for 1989 shows the Employer as CATS,
though not without some confusion subsequently appearing
of record, discussed further below. In any event Jones
worked as a container repair mechanic during the entire time
he worked at CATS, both first as employed by Olsten, and
then directly by CATS, and Jones did so (at least) through
May 16 when initially notified he was terminated.
Under what circumstances Jones may have later worked
for CATS as an Olsten temporary and in what manner Jones
later was again employed by CATS and has again been ter-
minated, are more conveniently discussed further below.
Jones’ first supervisor was Donnie King, previously an op-
erations manager of the Employer’s predecessor and (appar-
ently) also of CATS. CATS employed Wesley Westbury as
operations manager in 1989, who then supervised Jones.
f. The first termination of Jones
On May 15, Jones worked at CATS the entire day, leaving
work about 5 p.m. CATS’ operations manager Westbury
called Jones on the phone about 1 a.m on May 16. Westbury
told Jones that Jones no longer had a job at CATS. Westbury
did not testify in this proceeding. Related ruling sustaining
the Union’s timely hearsay objection to Jones’ relation of a
Westbury statement made to Jones that Westbury (purport-
edly) attributed to Sloan in a May 15 Wilmington meeting
(below) is reaffirmed, especially with it established that
Westbury had not attended that meeting.
g. The parties’ basic contentions
The General Counsel sees the central issue as revolving
about the above Wilmington meeting, characterized by the
General Counsel as a meeting to discuss how a hiring hall
agreement would be put in place. Relying on the holding of
Austin & Wolfe Refrigeration, 202 NLRB 135 (1973), that a
lawfully contracted hiring hall may not be applied retro-
actively, the General Counsel contends that at this meeting
Sloan had unlawfully advised Shinn and Gautier that the
Union would not allow the Company to continue employing
Jones who had been a permanent employee there for the last
6 months.
Counsel for the General Counsel also contends that Jones
cannot be faulted for not subsequently applying for member-
ship in Local 1426 (where the record reveals that certain
other full-time mechanics, who did, were accepted into mem-
bership in Local 1426) for the reason that under all the at-
tendant circumstances it would have been futile for Jones to
have attempted to do so. The General Counsel has further ar-
gued that because North Carolina is a right-to-work State,
Respondent Union could not legally require CATS to dis-
charge its employee Jones because of his (nonmembership)
status within the ILA. The General Counsel’s argument is
one advanced on claimed guarantees of Section 14(b) of the
Act that no other sections of the Act can extinguish state
power over certain union-security arrangements, with stated
reliance for the unfair labor practice urged to be found on
the basis of the 14(b) provision and related Supreme Court
observation, see Retail Clerks v. Schermerhorn, 373 U.S.
746, 751 (1963):
Nothing in this Act shall be construed as authorizing
the execution or application of agreements requiring
membership in a labor organization as a condition of
employment in any State or Territory in which such
execution or application is prohibited by State or
Territorial law.
As is immediately apparent from its language, § 14 (b)
was designed to prevent other sections of the Act from
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
completely extinguishing state power over certain
union-security arrangements.
The General Counsel has relatedly requested administra-
tive notice be taken of N.C. Gen. Statute Section 95–78, et
seq. Pertinently, id., 95–80 provides:
No person shall be required by an employer to become
or remain a member of any labor organization as a con-
dition of employment or continuation of employment
by such employer.
Respondent Union centrally disputes any such statement
was made as is above claimed to be attributed to Sloan, i.e.,
of Respondent Union’s opposition to CATS’ continued em-
ploy of Jones as a permanent, full-time employee because of
Jones’ lack of union membership. The Union rather contends
that at the time of the parties’ first transition meeting in Wil-
mington after the signing of the contract on May 12, the
Union did not then know whom Employer employed full
time and whom part time (sic), except as it was told by the
Employer in the meeting of May 15.
Indeed, the Union contends that in fact the Company sup-
plied erroneous information at that time to Sloan and the
Union, on which Sloan and the Union had proceeded in good
faith; that Sloan and the Union were not at that time told that
Ben Jones was a full-time employee; that only later were
they told the Company had erred in informing Sloan and the
Union who were the Company’s full-time employees; and,
even if it is to be determined that in some manner, the Com-
pany had subsequently informed Sloan and the Union that
Jones was a full-time employee, by that time, the Company
had also already informed the Union that Jones was to be
employed in a nonunit position.
Respondent Union also generally defends that Sloan had
no motivation to discriminate against Jones, whom Sloan
didn’t even know at the time, and the facts simply do not
support a finding that the Union violated the Act as has been
alleged.
Some Preliminary Observations on the General
Credibility and Ruling Declining Certain Requested
Adverse Inferences
The Union does not appear to contest the General Coun-
sel’s above-observed precedent, including the hiring hall
precedent (at least) in brief beyond assertion (notably, with-
out cited authority) that the law does not require continuation
of part-time (sic) employees. (There is, however, indication
in Respondent’s brief that Respondent has continued hearing
reference to a temporary employee as a part-time employee.)
In regard to the Union’s contention that part-time employ-
ees need not be continued, it would appear in general that
an employer may agree with a union supplying casual or
temporary employees to perform longshore work, to also
supply container repair mechanics on a steady or casual basis
and, consonant therewith, that an employer may effect ad-
verse employment action (e.g., change a steady employee to
a casual employee), so long as not changing status of the
employee for discriminatory or other unlawful (e.g.,
anticoncerted activity) purpose. Cf. Seatrain Terminals of
California, 205 NLRB 814 (1973). However, the Board has
held that discharge of a casual, or even an admittedly defi-
cient, probationary employee constitutes a violation of the
Act where that discharge is based even in part on that cas-
ual’s or probationary employee’s union or protected con-
certed activities, Lafferty Trucking Co., 214 NLRB 582, 583–
585 (1974); Amole, Inc., 214 NLRB 67, 68–69 (1974).
Otherwise, the Union’s joinder of issues in the case is pre-
sented on basis of its view that the controlling facts are sim-
ply basically contrary to those urged and relied on by the
General Counsel, and thus the case is effectively presented
by Respondent Union as one to be resolved on the basis of
its urged credibility determinations. The General Counsel’s
evidenced weakness is revealed in perceived (necessarily) se-
lective advancements of certain evidence in conflict and/or
inconsistent, including that to be found in certain evidence
of even his own witnesses, below.
In that regard however, the fact is no witness advance by
either party has proven to be singularly convincing. The mat-
ter in the end is to be decided on the basis of weight of evi-
dence that is determined to appear from the entire record as
the more mutually consistent and supported, and thus appear-
ing as the more credible, together with all fair inferences that
may be deemed to reasonably arise therefrom. In the rare in-
stance where demeanor of a witness was helpful in regard to
a matter in dispute, I have so noted. Both parties have called
in their respective briefs for certain adverse inferences to be
drawn, on stated basis that their opponent had failed to call
a material witness.
The General Counsel has called for an adverse inference
to be drawn against Respondent Union because of Respond-
ent Local Union 1426’s failure to call Hammonds, who is
president of Clerks and Checkers Local Union 1766 (clearly
a different union and separate legal entity than Respondent),
and who otherwise appears of record as on vacation at the
time of (the resumed) hearing. Respondent Union in brief has
similarly called for an adverse inference to be drawn from
the failure of the General Counsel to call CATS’ president
Shinn, whom it has urged (unpersuasively below) was the
principal spokesman for the Employer in the material meet-
ing held on May 15 in Wilmington right after the contract
was negotiated in Savannah, Georgia. Neither party called
Westbury, who was CATS’ operations manager in material
times at Wilmington, and who had notified Jones of his (ini-
tial) dismissal.
As the General Counsel did call CATS’ vice president
Gautier (and notably did so despite Gautier’s initial failure
to appear in response to an apparently lawfully served sub-
poena), and as the Respondent Union did call Rose, president
of ILA Local Union 1338 (also a different union and sepa-
rate legal entity), who (I find below) was also present, and
available, and, in any event, as each of the individuals who
were not called to testify by a party was not an agent or indi-
vidual shown otherwise to be in the control of that party, and
was each previously equally subject to a lawful subpoena
process of the other party to ensure their availability and at-
tendance at hearing, I decline to draw either adverse infer-
ence as urged by the parties on the failure of the opponent
party to call either Hammonds or Shinn, respectively. Cf.
Master Security Services, 270 NLRB 543, 552 (1984). Nor
do I draw adverse inference (on my own) on the failure of
either party to call (former) CATS Operations Manager
Westbury, as the Employer is not here the Respondent.
955LONGSHOREMEN ILA LOCAL 1426 (CAROLINA ATLANTIC)
B. The Evidence
1. The scheduled meeting of May 15
a. The dispute over when the meeting was held
The next meeting of the (Wilmington) unions with CATS
(after they had entered into the contract with CATS in Sa-
vannah on May 12) was scheduled to be held at 10 a.m.,
Monday, May 15. Representatives of the parties met for the
meeting in the conference room at Local 1426’s union hall.
Present were Shinn and Gautier for CATS. Present for the
Wilmington unions (only) were respectively President Sloan
and Vice President Vaught for Local 1426; President Ham-
monds for Checkers Local 1766; and (I find, though not
without some reservation) President Rose for Local 1838.
Both Gautier and Sloan placed Rose there. Vaught testified
he thought Rose was there. Rose placed himself there, but
in contrast with credible testimony by Rose as to the purpose
of this first meeting, Rose did not thereafter recall as much
detail of the meeting as did others who were in attendance.
In still further contrast, Rose (alone) then recalled an attend-
ance (purportedly with all the others) at a second meeting
that he placed later that week, about May 17 or 18 (below),
and which the testimony of others did not convincingly rule
out.
Under consideration for present resolution is only the dis-
pute of fact over what day this first meeting (after the con-
tract was signed) was actually held, namely, whether on May
15 or 16. Sloan relates the meeting was initially set for Mon-
day morning (May 15), but Shinn had called, notifying (the
unions) that his flight got held up, and as a result (as Sloan
first recalled it) the meeting was held that afternoon.
Gautier thought it was Tuesday (May 16) that they met,
remembering Shinn did not arrive from Jacksonville, Florida
(on Monday May 15), until the late afternoon, and that the
meeting was rescheduled to the next day. Gautier recalled the
meeting was held on that day not only on basis of his (unde-
fined) records, but by his recall of an association of the
meeting with his wedding anniversary, which was (appar-
ently) on that day. (No supporting record of Gautier was in-
troduced.)
In subsequent testimony, Sloan then related that though he
thought the meeting was held on Monday, he would not dis-
pute Gautier’s recollection of it being held on Tuesday. No-
tably, Sloan maintained firm recollection that the meeting
was held in the afternoon, and that it was on the following
morning Sloan and Vaught had first visited Employer’s fa-
cilities. If Gautier’s recollection (and Sloan’s concession) of
a May 16 meeting were to be determined to warrant finding
that the meeting was actually held on May 16 (be it morning
or afternoon), Jones’ notification of termination in the early
morning hours that day would have occurred before the tran-
sition meeting was even held. On this record I do not view
that likely.
Rose confirmed Sloan’s initial recollection they had met
Monday, May 15, after signing the contract in Savannah on
Friday. Vaught, who is responsible for and handles all the re-
ferrals for Local 1426, had not attended the Savannah meet-
ing. Vaught recalled congruously he had received a call from
Sloan on either Thursday or Friday (informing) that they had
reached agreement, and that the first barge would be worked
the next week. Vaught confirmed Sloan’s (initial) recollec-
tion (and that of Rose) in that he thought the next meeting
was held on Monday, which was (apparently) his first meet-
ing with CATS.
Conflicting date aside, the General Counsel contends that
all the witnesses have discussed the same meeting. That con-
tention aside, on weight of what appears in the end to be the
more mutually consistent, corroborative, and thus more cred-
ible evidence, I find, contrary to (the undocumented and as-
sociated) Gautier’s recollection, and any Sloan-indicated
agreement therewith, that the parties first met in Wilmington
(after the contract was signed) at Respondent Union’s hall
more likely on the afternoon of May 15. Additionally, I find
it more likely that Rose was in attendance.
Inference that Rose missed the first meeting because of the
rescheduling is not sufficiently supported on this record.
Whether Rose otherwise has just not recalled certain discus-
sions of that meeting concerning individuals that did not di-
rectly affect his Local, or whether Rose has mixed up certain
of his recalled discussions, particularly on Jones, which Rose
ascribed to a similar meeting held later that week, are ques-
tions more conveniently to be addressed further below.
b. Disparate views expressed on the purposes of
the May 15 meeting
Gautier asserts CATS wanted its maintenance people pro-
tected because CATS had invested a lot of time and money
in maintenance facilities; its container maintenance was a big
budget item (as is apparently standard in the industry); its
(maintenance) people had been trained, were loyal to the
Company, and had worked hard and, for continuity of the
business, it was to CATS’ benefit not to disrupt its mainte-
nance operations by having a complete turnover of mainte-
nance personnel. In contrast, Gautier revealed that two of
five named maintenance mechanics had only recently been
hired (clearly, during the labor dispute).
Gautier otherwise relates that his own impression at that
time was of an agreement of Shinn, himself, and the ILA,
that the ILA would do what they could to protect these peo-
ple, and bring them in; though immediately restating it as,
do whatever had to be done in order to protect the continuity
of the company, because it was in their (ILA) benefit as well
as CATS, for the Company to succeed. In contrast, Sloan re-
counts relatedly only that they (the Unions) had promised
management that they would try to do everything within
their power to make sure the Employer had a smooth transi-
tion and operation.
On cross-examination, Gautier testified explicitly that the
purpose of the meeting was not to determine who was going
to become a member of the ILA, and he then clarified that
the Company was open to the Union’s discussion of that sub-
ject (ILA membership) with its employees. Gautier summa-
rized, whether the employees chose to join the ILA, or they
were or were not given an opportunity to join the ILA, CATS
was open to ILA discussion of that with the people, and giv-
ing them the opportunity to do so.
Though Sloan initially said the meeting was not to discuss
or implement a hiring hall as is centrally urged by the Gen-
eral Counsel, Sloan has, in continued questioning, acceded
the purpose of the meeting was to discuss transition of the
Union on the job in accordance with the recently negotiated
contract which contained an already negotiated (exclusive)
hiring hall provision. Vaught succinctly recounted the meet-
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing was to find out the amount of men CATS had on full
time, and the amount of men CATS was going to employ
from ILA. Ross has generally confirmed the purpose of the
Wilmington meeting was to get together on the number of
men (needed): to load and unload CATS’ barges; for the Em-
ployer’s maintenance and repair of containers; and to work
as clerks and checkers for CATS on that particular operation.
In signing the contract, CATS had again agreed ILA
would handle the casual/temporary longshore work on the
vessels. Gautier also knew that the people that CATS had
previously had working the vessels were non-ILA temporary
employees, who had all been hired through temporary em-
ployment service(s); and whom Gautier has asserted (without
contradiction) CATS had brought in for that 4- to 6-week pe-
riod, clearly corresponding to the period of the parties’ labor
dispute.
As far as the vessel was concerned, Gautier states under-
standably, that wasn’t a big deal because the vessel was kind
of cut and dry. Gautier then explained that it (the vessel
loading and unloading operation) starts and stops, it’s not
continuous, and Gautier asserts CATS didn’t have another
vessel until the following Friday. If so, Gautier relates plau-
sibly the Company had time to work out the (hiring) details
for the next longshore vessel operation. Gautier has cogently
summarized that the Wilmington ILA knew how to steve-
dore; and CATS could (re)order its required (casual or tem-
porary) longshore labor from them, when next it was needed.
If viewed from Gautier’s stated vantage point, the meeting
as being with purpose to centrally discuss protection of main-
tenance employees appears on its face plausible.
This does not mean the Union has less plausibly viewed
the purpose of the meeting more broadly. In contrast with
Gautier, Vaught had previously viewed them (the employees
doing the longshoremen’s work of loading and off-loading
the barges) as men (CATS) had brought down to do the
work at the time of the labor dispute. Sloan hadn’t pre-
viously heard of CATS’ use of a temporary employee agen-
cy. On cross-examination, Gautier affirmed the broader union
view that they all understood there would have to be a transi-
tion period, and they were to discuss it (local transition
issues) in Wilmington in the following week.
As Sloan’s prior and main interest was to refer longshore-
men to load and unload containers on and off CATS’ barges,
I credit Sloan that was a subject that the parties discussed.
Moreover, I credit Sloan not only that they had discussed the
gangs to be dispatched for the loading and discharging of
barges, but (relatedly) had discussed the whole CATS’ oper-
ation down there, including CATS’ use of a temporary em-
ployee agency during the parties’ labor dispute.
However, Sloan also had a clear interest in his Union’s
filling any required container repair mechanic positions, now
having a contract to do so. The terms of the contract are not
in evidence. In short, (all) the unions were there to discuss
all aspects of a smooth transition on the job, including not
only to discuss the details for their resumed supply of casual
longshoremen for the loading and off-loading operation on
CATS’ container barges, but to discuss circumstances for a
union transition to supply required maintenance shop em-
ployees (and for the checkers union to provide any required
checker(s)).
c. The dispute over Gautier as a joint spokesman
Gautier’s account that Shinn and Gautier had both talked
about employees in this meeting is generally credited.
Sloan’s and Vaught’s contrary assertions that when they
opened the meeting of May 15 that Shinn did most (or all)
of the talking on management’s side and that Gautier had
said very little in this meeting are simply not credited as ap-
plied to this meeting.
Apart from credited evidence that Gautier had substantially
participated in CATS’ discussions, Sloan offered uncon-
vincing reason to support his contrary assertion. Sloan re-
lated: they had previously been in contract negotiations with
Shinn; when Gautier showed up, nobody knew him, and
Gautier didn’t know them; so, Gautier didn’t have much to
say at that meeting. Gautier’s seeming presence at negotia-
tions even earlier in May aside, Gautier had attended the ne-
gotiations on May 12, indeed was signatory to the agree-
ment; and, contrary to the Union’s urging, it appears of
record that by this time Gautier also had assigned responsi-
bility over operations, including the maintenance shop.
It is thus far more likely Gautier thereafter jointly spoke
(with Shinn) in the parties’ discussion of the Wilmington
maintenance employees, as Gautier recounts. However,
Gautier did not lead those discussions, notwithstanding any
indication of that which may be viewed to arise from a re-
view of Gautier’s summary accounts of the meeting. E.g., it
is more likely Shinn continued as principal participant, and
that Shinn began the discussion for the Employer (and made
certain other significant statements, e.g., on Whitman’s pro-
spective supervisory status), as Sloan and Vaught otherwise
have credibly recalled, to the extent found below.
d. Points of contention, conflict, and confusion—
analysis
(1) Who were named (correctly/incorrectly) as CATS’
maintenance employees; how was their status identified
(full/part time, permanent/temporary); and to what
extent were employees individually, or by job
discussed?
There is major record confusion in these areas.
Sloan recalled credibly Shinn started the meeting by say-
ing, ‘‘[W]e want to discuss the transition of employees; how
we are going to work the barge, and the maintenance facili-
ties.’’ Sloan recalled they then mentioned names of the indi-
viduals that CATS had working in the Company’s mainte-
nance shop. Gautier relates credibly that it was he who then
named the maintenance shop employees. However, signifi-
cantly, on cross-examination Gautier confirmed he thought
he had (at first) just read off the names of the mechanics
(sic).
Though Sloan at first couldn’t recall the names they had
mentioned, Sloan did acknowledge that they had asked Sloan
(initially) if Sloan would agree to allow their men to stay on
the job, and that Sloan had (initially) said no, stating he
would not or could not (agree to) allow the Company to keep
all their men on the job because they had a hiring hall
agreement, and Sloan had qualified men.
As General Counsel’s 611(c) witness, Sloan denied that
Shinn and Gautier told Sloan that they (CATS) employed
three full-time mechanics including Jones or that they said
957LONGSHOREMEN ILA LOCAL 1426 (CAROLINA ATLANTIC)
that they wanted to employ three mechanics. Sloan acknowl-
edged otherwise: that they (Shinn and Gautier) had men-
tioned several names at the table and that Jones’ name was
mentioned around the table, but Sloan at that time didn’t re-
call any details.
Though Sloan didn’t recall Gautier or Shinn give names
over again of those they wanted to employ, Sloan recalled
that Shinn had told Sloan they had some full-time and some
part-time people, and some people they wanted to keep; that
they had then discussed certain of the previously named indi-
viduals; and that Sloan had then said he would agree that
the Company keep some of them employed. Sloan clarified
that they had then discussed full-time people; that the Union
agreed to the Company’s continued employ of its full-time
employees; and where Sloan had stated his disagreement was
in regard to CATS’ continued employment of the part-time
(sic) employees.
The General Counsel has established for credibility pur-
pose evaluation, in contrast with Sloan’s accounts (above and
below), and with claimed indefinite recollections by Sloan
when called as a 611(c) witness, that in an affidavit Sloan
had previously given to the NLRB on August 15 during an
investigation of the underlying charge, Sloan had then stated,
severally:
On 5/15/89 when I met with Shinn and Gautier they
told me who they had working as mechanics in Wil-
mington. They said they had three full time and two
part time mechanics. And, as I recall Ben Jones was
one of those people. This is the first time I had ever
heard of his name. I had never met Ben Jones as of that
date. In addition, Shinn and Gautier asked me if I
would agree to allow those men to stay on the job. I
said no, that I would not agree to it because we had
a hiring hall agreement and that I had qualified men to
fill the jobs who were not working. I did not say that
I would not accept the men in the Union. I said I would
not allow the Company to keep those men on the jobs.
First, Respondent Union would have it observed that the
Sloan affidavit does not actually identify Jones as a full-time
employee. Second, the Union contends that the fact is that
Sloan and the Union had later in this meeting agreed to the
Employer’s continued employ of all of its named full-time
employees, and even continued to do so later when the Em-
ployer reported it had made an error in naming Smith (who
was actually a temporary employee employed by another
company) as a full-time CATS’ employee, and in failing to
name Shutz at the same time as a full-time CATS’ employee,
below. Third, Respondent contends Jones wasn’t named as a
full-time employee in this meeting.
To the extent that Respondent has relatedly asserted in
brief that neither Gautier nor Jones has actually said Jones
was a full-time employee, I do not find such argumentative
facts persuasive. Thus although Jones apparently did not ex-
plicitly testify that he was a full-time employee, Jones did
testify that he was employed by CATS when first terminated
(on May 16). Although Gautier apparently also did not ex-
plicitly testify that he said Jones was a full-time employee
in this meeting, Gautier did testify Jones was later returned
to full time (through an Employer NLRB settlement in the
fall, to be discussed further below), and Gautier confirmed
that Jones was returned at that time to the same position
Jones had previously occupied.
There is simply no convincing evidence presented to the
contrary, e.g., to warrant a finding that Jones had continued
after January as an Olsten temporary employee prior to May
15 when he was terminated. Weight of the above evidence
rather indicates that from January through May 15 Jones was
a permanent, full-time employee of CATS, and such at the
time when he was (first) terminated by the Company. A de-
termination of Jones occupying full-time status, however, is
not one to be made on weight of the above evidence without
leaving significant factual questions behind it. First, the
Union fairly asks a perplexing question in brief, if not Jones,
who was the second part-time (or temporary) employee that
is referred to by Gautier (and previously recorded by Sloan).
Moreover, and in any event, it is not at all clear what the
Company had explicitly said about Jones’ employment status
in this meeting.
Even if Gautier has only hedged a statement to that effect
(referring to two part-time employees or mechanics) was one
he may have said, Gautier did not deny saying it. Sloan’s
testimony is that a statement to that effect was said and, in-
deed, it is only the more notable, with Sloan’s past and sup-
portive recorded recollection urged by the General Counsel
that the Company had said it had ‘‘three full time and two
part time mechanics.’’
However, whether Shinn or Gautier had actually told
Sloan or the Union in this meeting that Jones was full time
or whether Sloan had some cause at the time to actually
think otherwise (e.g., that Shinn or Gautier had named three
others as full time in this meeting) is a question that is best
presently left open. Fourth, in that very regard, Respondent
contends in brief that the record shows Gautier didn’t actu-
ally know at the time who was full time, who was part time,
who was permanent, and who was temporary; that Gautier’s
recollections in these respects were simply confused; and
they are wholly suspect. On many of these factual assertions,
the Union’s arguments appear to have merit.
First, to the extent the General Counsel’s argument is
made on a credibility basis, e.g., that Sloan’s affidavit serves
to establish Sloan’s awareness of the status of Jones as a
full-time employee, it would seem there is too much ambi-
guity present in the affidavit, certainly on whether Jones is
therein being recorded by Sloan as a full-time employee. In-
deed, in common writing parlance, Jones would appear more
warranted to be inferred identified with the nearest, or the
last-named category, thus, as being one of two referenced
part-time mechanics. But there is even then a latent ambi-
guity present on part time being applied to a temporary, non-
CATS’ employee, if one of two referenced part-time employ-
ees is to refer to Smith, as on this record it must.
However, Sloan did not testify either to be the stated fact,
but rather remained unclear exactly what was said about
Jones’ employment status at this meeting. Notably, Sloan
confirmed that the Company erroneously identified Smith as
a full-time employee in this meeting, while not recalling
Shutz named at all.
Sloan has specifically recalled that Jones’ name was men-
tioned around the table, but Sloan didn’t remember whether
it was mentioned as full time, part time, or what. Sloan had
first recalled generally (as a 611(c) witness), that if he was
not mistaken, they (CATS) had mentioned something to him
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about they had some people working through Olsten, a tem-
porary (service) agency, which was the first time he heard
that name called. Though Sloan acknowledged that tem-
porary (service) is not mentioned in his affidavit, Sloan then
only the more firmly stated he was testifying as to what was
said at the meeting. In this instance Sloan’s demeanor in the
firmness and manner of his reply appeared as decidedly the
more convincing than an omission in an affidavit otherwise
shown to be inaccurate in part, especially when also appear-
ing more congruous with other credited facts of record.
Gautier does not specifically deny there was discussion of
CATS’ employ of temporary individuals through Olsten.
Apart from independent likely mention of such in a discus-
sion of CATS’ barge longshoring, when asked directly what
he had told the Union about the maintenance employees,
Gautier was unsure whether he mentioned at the meeting
there were three to four full-time employees, or whether (he
said) it was one or two temporary employees that were em-
ployed at the time.
In regard to the general credibility of Sloan’s account
versus Gautier’s account, if Sloan, when initially called as
General Counsel’s 611(c) witness, has in any implausible
sense said he did not recall all the names of those who were
mentioned, and thus is to be viewed as having only question-
ably done so later (in greater detail) as Respondent’s witness
in resumed hearing, then the General Counsel’s witness
Gautier, who has asserted his singular interest in attending
this very meeting was for the discussion of the CATS’ main-
tenance group, has appeared just as, if not more unreliable,
in certain of his related accounts.
Gautier has testified that CATS was keenly concerned
about, and wanted to discuss with the Union the protection
of its maintenance shop employees. CATS did not want them
displaced by someone off the ILA bench. Gautier has as-
serted that everybody they were interested in (keeping) in
their maintenance operation was discussed that day. Gautier
initially related that at that time they were talking about
David Whitman, Charles Dobson, Roy Shutz, Ben Jones, and
maybe Dennis Smith, but then Gautier immediately added, he
didn’t remember.
Notably, Gautier didn’t recall who of the five named in
maintenance was first discussed, didn’t recall any part of the
order of the discussion of maintenance employees and, surely
questionably, recounts he made mistakes in stating the em-
ployment status of at least two (Smith and Shutz) of the five
in maintenance he has hesitantly asserted he did mention at
the time. Although I have no doubt that the Employer
planned to keep certain mechanics for the reasons stated by
Gautier, I have noted in other context that Gautier revealed
that two of the five, Shutz and Smith, were only recently
hired about the same time.
Gautier has also said they were all on CATS’ payroll full
time. However, in that regard, in fact, all the above individ-
uals he has named as mechanics were not all full time, nor
all on CATS’ payroll full time, e.g., Dennis Smith. Indeed,
Smith has never appeared directly on CATS’ payroll as an
employee. Thus, during all the times Smith has worked as
a container repair mechanic at CATS’ maintenance facility,
Smith testified he has worked there for CATS as a temporary
employee, and he was always directly employed (and paid)
by Olsten.
As noted, the General Counsel has also established that in
the prior affidavit given to the Board during an investigation
of the underlying charge (and on which the General Counsel
has relied heavily, above), Sloan had not made any reference
to temporary employees, but only to being told there were
three full-time and two part-time mechanics. Be that as it
may, there is more convincing evidence (above) that (at
least) Smith was a temporary employee employed by Olsten
working as a temporary for or at CATS, and (below) that a
witness of each of the parties has occasionally indiscrimi-
nately, or interchangeably spoken of (temporary employee)
Smith as a part-time employee of CATS. (There is even indi-
cation the Respondent continued to do so in brief.)
Contrary to Sloan’s affidavit reference to CATS’ employ-
ment of three full-time and two part-time mechanics, General
Counsel’s witness Smith testified that at all times that he had
worked at CATS as a container repair mechanic, Smith was
in fact a temporary employee employed by Olsten, and he
has never been employed there directly by CATS. Thus (I
find) not only that CATS has never employed Smith as a
CATS’ full- or part-time employee, but to the extent the
Sloan’s affidavit indicates otherwise, it is inaccurate as to
that fact (though not necessarily inaccurate in recording what
Sloan then understood of what he had been told by CATS).
The General Counsel’s witness Gautier also testified that
employees performing the longshoring (barge loading and
unloading) during the parties’ labor dispute were all tem-
porary employees. That fact was not previously known by
Sloan or Vaught. It seems inconceivable that the parties
would have discussed the barge longshoring transition with-
out some mention by CATS’ management of CATS’ prior
use of temporary employees in that operation; especially with
the Union’s resumed supply of casual or temporary long-
shoremen likely to be of prime interest to Sloan and Vaught.
There is no evidence presented that in the affidavit Sloan
had denied there was any mention of temporary employees.
Despite subject omission in the affidavit, I credit Sloan that
there was mention of Olsten’s temporary employment service
in this meeting. Moreover, Gautier recounted other discus-
sions with confused acknowledgement of his possible use of
terms of full time and/or permanent, part time, and/or tem-
porary, including (albeit determined unreliably so on the
numbers, below) that Gautier couldn’t recall if he said at the
time CATS had three or four full-time, and/or one or two
temporary employees.
The Union’s witnesses were not much better in identifying
the numbers named as full time or part time, permanent or
temporary, at this meeting. As Respondent’s witness, Sloan
has recalled that in the very beginning of this transition
meeting with CATS, the Company had said they had a total
of five in the maintenance container repair.
Sloan recalled they had said either two or three of them
were full time, and that they didn’t use the term permanent
at that time. Sloan recalled that in the discussion of the indi-
viduals: they had said Whitman was full time; and they said
they wanted to keep Dobson on full time. Sloan (and Vaught)
have confirmed (Gautier) that they had also named Smith as
a full-time container repair mechanic in this meeting. Sloan
asserts he had (only) the next day learned Shutz was a per-
manent or full-time mechanic (instead of Smith).
Sloan later recounted in greater detail, but notably then
with substantial corroboration by Vaught, that in this meeting
959LONGSHOREMEN ILA LOCAL 1426 (CAROLINA ATLANTIC)
the Company mentioned Whitman, whom Shinn said they
were going to make a supervisor (with a further material
comment made by Shinn bearing on the reason, more con-
veniently to be discussed below). Sloan otherwise recalled
Shinn said he wanted to keep Dobson employed as a full-
time container repair mechanic. Dobson had years of experi-
ence as a mechanic, some with a predecessor company of,
or under King and, in any event, because Dobson had been
with the Company since they had started the maintenance
container repair. Sloan credibly recounted that Shinn had said
that Dobson was highly qualified and that Shinn definitely
wanted to keep Dobson on the job.
In that regard, Sloan has testified that the Union then had
no objection, and we told him (Shinn), right there in the
meeting, that we agreed. Indeed, Sloan related he told the
Employer that he (Sloan) had no objection to their continued
employment of any one who was full time. Sloan has testified
that, to his knowledge, no one in this meeting had referred
to Jones as a full-time employee. Sloan also recalled Shinn
didn’t mention anything in that meeting about Shutz (or any-
one else). Contrary to Gautier’s recollection of calling Sloan
later that afternoon about an error made on Shutz’ status,
Sloan didn’t recall Shutz’ name come up at all until the next
morning, when Sloan recalled having a conversation with
Gautier about it at CATS’ terminal facility, below.
In support of Sloan’s assertion of stating to the Company
that he had no objection to CATS’ continued employment of
full-time employees, Sloan would have it observed that he
had readily accepted management’s identification of those
who were its full-time employees, as stated both at this meet-
ing, and (later) when the Employer said that CATS employed
Shutz full time, rather than Smith, in clarifying a mistake it
said it had made. At this time Sloan didn’t (personally) know
Dobson, Jones, Smith, or (apparently) Shutz. Sloan had never
seen any of them before, though he knew (of) Whitman,
below.
Vaught did not directly address, and thus does not explic-
itly corroborate Sloan’s statement in this meeting of no ob-
jection to CATS’ (continued) employ of their full-time em-
ployees. However, Vaught has testified that Shinn had asked
the Union to accept Shinn’s full-time employees, and
Vaught’s testimony not only supported Sloan’s recollection
of there being two or three full-time employees, in that
Vaught confirmed a company’s mention of Dobson and Smith
as full-time employees, with Vaught’s asserting that Whit-
man, though also full time, was never mentioned as a full-
timer in that it was only said, Whitman would be with man-
agement, but Vaught confirmed that after the contract, Union
referred three full time.
As above noted, as a 611(c) witness, Sloan had recalled
that Jones’ name was mentioned around the table, but Sloan
didn’t at that time recall any of the details. As Respondent’s
witness, Sloan later testified, to the best of his knowledge,
that Shinn said he was going to put Jones on the road trav-
eling, surveying equipment. On cross-examination, Sloan ac-
knowledged that there was nothing in his prior affidavit
about Jones’ driving around. However, Vaught’s recollection
of the Company’s mention of Jones confirmed that Shinn
said Jones would be doing some surveying for him, because
Shinn had a lot of (container) boxes that he needed to be in-
spected to be repaired and, relatedly, that Shinn had men-
tioned Jones would travel to Charlotte and Savannah.
Gautier’s assertions, insofar as they indirectly bear on the
status of Jones as full time, are not advanced materially by
Gautier’s claim of his general awareness of the names of all
CATS’ employees, or any indicated listing of five mainte-
nance employees (that included an Olsten temporary). It
would appear as only the less so in light of Gautier’s other
relation that he couldn’t remember if he was aware of Jones’
prior (1988) employment as a temporary employee, and in
the light that of five maintenance employees that were pur-
portedly named because of deep company concern, there has
been stated mixup on two, namely, temporary employee
Smith and asserted full-time employee Shutz, because both
were only recently employed about the same time, especially
where it is only hesitatingly asserted that five were named,
and it is established (at least) one of them was never em-
ployed by CATS directly.
It is clear that both Shutz and Smith had begun work as
container repair mechanics at CATS before the contract was
agreed on. There is no documentary evidence presented on
the respective employments of Smith and Shutz.
The record is unclear who might have been a second part-
time employee that Sloan’s (and Gautier’s) testimony and
Sloan’s affidavit might refer to. The record is unclear who
might have been a second temporary employee that certain
other of Gautier’s testimony could potentially refer to. Other
than Smith, Jones is the only one affirmatively shown pre-
viously hired in maintenance as a temporary Olsten em-
ployee, but of record appearing not such since January.
Whitman is identified as a full-time CATS’ employee
being made supervisor. Dobson is clearly identified as a full-
time CATS’ container repairman from the start. Witnesses of
both parties assert error was made in naming Smith as a full-
time employee and eventually corrected with the naming of
Shutz (in place of Smith) as the full-time employee. Though
Shutz was only recently hired at about the time Smith was,
on this record only Smith is shown not full time, as well as
employed through Olsten. (Gautier related Smith and Shutz
were hired at that time within days or weeks of each other.)
There is no evidence of record, let alone clear or convincing
evidence, that Shutz had ever previously been employed by
or through Olsten. Indeed, by weight of the record evidence
such as is presented from both sides, the evidence appears
only to the contrary of Shutz ever being either a CATS’ part-
time employee or an Olsten temporary employee.
There is also confusion over whether three or four full-
time employees were mentioned by CATS in this meeting.
With Whitman and Dobson clearly identified as prior full-
time employees, and with Jones identified of record as at
least an actual full-time employee of CATS since January,
Shutz would have then been a fourth full-time employee.
This was (at best) unsurely recalled by Gautier and clearly
by no one else. It compares unfavorably not only with
Sloan’s related two or three full-time mechanics (which may
be discounted as more likely self-serving hedging recollec-
tion), but is contrary more notably with Sloan’s more cred-
ible affidavit recorded company report of having three full-
time and two part-time mechanics.
On weight of evidence that I in the end deem the more
credible, I do not credit any Gautier indication that CATS’
management had stated in this meeting that the Company
had four full-time employees employed in its maintenance
facility. But neither do I credit indication in the Union’s wit-
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nesses (Sloan and Vaught) that the Company mentioned only
two full-time mechanics. Rather I conclude and find the
breakdown of three full-timers as stated in Sloan’s recorded
recollection in affidavit of August 4 is the more likely num-
ber of full-time individuals that the parties had discussed at
that time, and (I further presently find) that Whitman was
one of them as was clearly Dobson. The question remaining
open is whether it was Jones or Smith (erroneously) named
as the third full-time employee. On state of record evidence,
I am led to conclude, if his name was mentioned at all, Shutz
was not named as a full-time employee at this meeting.
In explaining the error he had made at the meeting,
Gautier related he had not remembered whether Shutz or
Smith was a part-time employee; that Gautier had told Sloan
at the meeting that it was Smith (sic, disjointedly at the hear-
ing); only to later find out, when Gautier got back to the of-
fice and had his management recheck the payroll records,
that in fact, Shutz was the guy who had been permanent (sic)
and Smith had been part time (though Smith, as found, was
an Olsten temporary).
In contrast with Sloan’s view that the parties had resolved
the transition at the meeting, Gautier has testified (disjoint-
edly), ‘‘[W]e left there with some things up in the air to be
discussed and rehashed.’’ Gautier continued,
I think we had one or two employees that were in
our employ who were temporary at the time, who were
not full time, and when I got the payroll information
from my management people who were in charge of the
shop, I got it backwards and subsequently I had to get
in—I didn’t remember who was full time and who was
permanent and we had to straighten all—but, it had
nothing to do with Jones or Whitman. I think the confu-
sion was between Shutz and Smith; and, we had to get
that straight so we just left it for further discussion.
To the extent any of Gautier’s above testimony would sug-
gest that Gautier, or any one else, had discussed at this meet-
ing a potential mixup on the status of Smith and Shutz as
full-time employees, such appears inconsistent with the
weight of far more consistent and mutually corroborative,
and thus determined more credible, evidence, and it is ac-
cordingly not credited.
There is not insignificant confusion in the record even oth-
erwise as to what type employee the parties were actually re-
ferring to (apart from whether or not so intending), in var-
iously having referred to part-time (and full-time) employees
in describing this meeting. E.g., it wasn’t just Sloan who in
that respect has referred to a clearly temporary employee as
a part-time employee. (Nor would a temporary employee
working full time appear to necessarily involve an inconsist-
ency in the state of this record.)
The fact is (and I find) that Gautier has used interchange-
ably (and confusedly) part time and temporary (as well as
full time and permanent). The fact also is, apart from pres-
ently resolving any issue of whether they were consciously
doing so, both Sloan and Gautier have referred to (at least)
one established temporary mechanic employed by Olsten, as
employed by CATS part time. Wholly apart from lack of
witness clarity, if not record confusion on numbers identified
as full-time employees as compared with permanent employ-
ees, and on number of part-time employees, as compared
with those occupying temporary status, is the very question
of credulity of an asserted misidentification of a temporary
employee (Smith) as a full-time employee in place of Shutz.
Apart from the asserted Smith/Shutz error made, there was
identified as full-time employees at this meeting Whitman,
Dobson, and Smith. On at least one other occasion, Gautier
related that he did not recall whether it was three permanent
(as compared with otherwise stated full time) and two part-
time (as compared with his earlier referenced one or two
temporary) mechanics, adding he is not denying it may have
been (so stated).
In the end, Gautier’s testimony is simply not clear enough
of record on exactly what CATS’ management had said dur-
ing this meeting either about specific numbers of full-time
and part-time employees CATS then employed; nor, is it per-
suasive that he had definitively informed the Union(s) about
full-time or permanent status, or part-time or temporary em-
ployee status of all the maintenance employees named. I am
rather convinced they went on to discuss individuals.
Gautier has not testified that he identified Jones as a full-
time employee at the meeting, beyond his confirmed recol-
lection that he had named the five individuals in mainte-
nance, with (erroneous) assertion all shop people were on
CATS’ payroll full time and later (hedged) general assertion
that he did not remember whether it was three or four full-
time employees that he told the ILA that CATS then had.
To be sure, on this record four full-time employees would
have necessarily included Jones. However, in the above cir-
cumstances of his other testimony, I am not prepared to se-
lectively conclude that Gautier had explicitly named Jones to
the Union as a full-time employee of CATS in this meeting.
Rather I shall look further to the Union’s testimony.
No union witness has testified that the Company identified
Jones as a full-time employee in this meeting. Ambiguity in
Sloan’s affidavit on Jones as full time or part time does not
advance any urged union awareness at this meeting of Jones’
as a full-time CATS’ employee. Sloan then has, with record
consistency, recalled no company mention that it wanted to
continue employment of Jones as a full-time employee in this
meeting. A related assertion of Sloan that if the Employer
had identified Jones as a full-time employee that Sloan
would have had no objection to the Company’s continued
employ of Jones, however, is to be given little probative
weight, as in nature largely self-serving. However, war-
ranting separate treatment is consideration of the evidence of
the Union’s position actually taken on the Company’s later
report of its reemployment of Jones full time in his old job
as a part of the Employer’s settlement of certain unfair labor
practice charges brought by Jones against the Employer
(below).
Neither Whitman, Dobson, nor Shutz testified in this pro-
ceeding. Setting aside momentarily whether there was a ref-
erence by Gautier to three or four full-time container repair
mechanics in this meeting, or as Sloan has related at the
hearing two or three (with Vaught’s testimony supportive of
two, and Whitman full time, but a supervisor), seemingly
more consistent with Sloan’s recorded three full-time me-
chanics in his affidavit, Sloan related at the hearing that three
mechanics were referred that afternoon. Their names are not
specified of record. The record reveals only that Whitman,
Dobson, and Shutz were employed in the immediately fol-
lowing days. Only Dobson and Shutz are shown clearly to
961LONGSHOREMEN ILA LOCAL 1426 (CAROLINA ATLANTIC)
have worked in the maintenance facility the next 2 days.
Jones and Smith as clearly did not.
(2) Disputed discussions in the meeting about
Whitman and Jones
Gautier asserts that two people were discussed at this
meeting over which Gautier was distraught, namely, Whit-
man and Jones. I readily discredit his claimed condition as
to Whitman. Gautier more plausibly asserts Sloan told Shinn
and Gautier that these two people would not be accepted by
the Union. According to Gautier, at that time Sloan specifi-
cally told them to forget about these two guys, we can’t dis-
cuss them, they would not be accepted in the ILA.
There is major conflict on the above and certain other re-
lated material (but uncorroborated, and denied) statements
that Gautier has attributed to Sloan in this meeting, particu-
larly with regard to Whitman and Jones. It is independently
warranted to presently note that Gautier’s reliability in these
crucial areas was itself shown open to serious question with
observation that though Gautier later testified that certain re-
lated charges brought against the Employer by Jones were
settled, and that they were settled by Gautier’s decision, on
advice of counsel, Gautier then (without claim of privilege)
asserted that he could recall none of the details why he did
so. The assertion was deemed incredible when it was given
and appears only more so on review.
(a) David Whitman
In apparent continuation of a theme of party discussion in
this meeting including the subject of the Union’s bringing in
CATS’ maintenance employees (into the Union), Gautier ini-
tially asserted that he was taken aback in the meetings, by
the fact that two people (in that respect) were singled out,
Whitman and Jones. Gautier relates Sloan told Shinn and
Gautier to forget about these 2 days, ‘‘we can’t discuss them
they would not be accepted in the ILA.’’ Shinn did not testify
in this proceeding. Shinn thus does not afford corroboration
to Gautier in any of the above respects. Nor does anyone
else who attended that meeting, and who has testified.
Gautier’s account was notably ILA generalized, namely,
that Whitman had filed assault charges against one of the
ILA people because, as Gautier understood it, Whitman had
been assaulted on the dock during the ILA strike when on
one occasion things got boisterous, and they (ILA people)
had charged the gates and wound up on the dock and the po-
lice were called in. Gautier’s belief that he had later learned
of the name of the individual (ILA member) involved did not
add specific awareness on his part of involvement of a clerk
in a purported assault of Whitman.
It is notable even at the outset, that Gautier alone has as-
cribed such a statement to Sloan, and even then does so only
in context of a purported Sloan response to CATS’ stated
openmindedness to an ILA discussion with the Employer’s
maintenance people of an opportunity to join the Union(s)
and, as apart from considerations of, if such opportunity was
to be afforded by the Union(s) and chosen by the employee.
In an apparent substantial exaggeration, if not inconsist-
ency therewith, certainly as applicable to assertion of being
taken aback, Gautier has revealed that the Company not only
previously knew of Whitman’s problem with an ILA mem-
ber, but at that time the Company had already contemplated
making Whitman a supervisor, which would bring Whitman
out of the jurisdiction of any job classification that would
come under the ILA (and out of any unit inclusion). More-
over, Gautier conceded his prior awareness that there was
bad blood between Whitman and a member of the ILA, over
an alleged assault of Whitman by the ILA member in an in-
cident that had occurred on the docks during the parties’ ear-
lier dispute. Indeed, Gautier related that at the time (of the
meeting) he had said he could understand how Whitman
could be a problem for the ILA.
Nonetheless, Gautier denied it was the Company that had
brought that (the Whitman-clerk incident) up in this meeting.
Indeed, Gautier then asserted it was Sloan who had brought
up in the meeting that there had been problems with Whit-
man and ‘‘his rank and file.’’ Gautier stated that he did not
know the individual involved, though asserting he had
learned of his name later. Sloan relatedly testified, consist-
ently and categorically, that at no time during this May 15
meeting did Gautier confront Sloan regarding Whitman, or
any of the other men named. However, Sloan’s additional as-
sertion on Whitman was not without question, namely, that
the ILA incident with Whitman is an incident that involved
clerks, did not involve his members, and was in fact no con-
cern of Sloan, as it did not concern his members.
In support of his version of the discussion of Whitman at
this meeting, Sloan has testified that at the time of this meet-
ing Sloan didn’t know any of the men when named. How-
ever, Sloan acknowledged that he did (previously) know
Whitman. Initially, Sloan stated it was when he was earlier
down in Miami, Florida, on another negotiation, that he had
first heard about Whitman. Sloan recounted that he had re-
ceived a call that there were some problems, and some guys
(sic) were arrested. However, Sloan (seemingly) then related
that it was when he came back the next day, he heard there
was a management man and a checker that had some prob-
lems, that he heard about David Whitman and David Seaton,
a checker, and that Whitman, whom Sloan identified as also
a checker, had taken out a warrant on him (Seaton) or some-
thing.
Sloan has identified Whitman as a checker solely on the
basis that they (CATS) had told Sloan that they had Whit-
man down there checking at the time. Sloan relates that he
didn’t get involved with that (Whitman-Seaton incident) be-
cause it did not involve his members. I do not find Sloan’s
underlying assertion for his recollections, that Whitman was
a checker, convincing.
As noted, Sloan had previously recorded in affidavit form
that the Company informed the Union in this meeting that
the Company had three full-time and two part-time mechan-
ics. That CATS may have also informed Sloan that the Em-
ployer had used Whitman as a checker at the time of a labor
dispute incident between Whitman and Seaton does not mean
that Whitman did not occupy maintenance mechanic status
prior to and after that incident, as initially named at the
meeting. If Whitman wasn’t named as a mechanic, then the
five mentioned mechanics have not been identified of record.
Neither Vaught nor Rose has confirmed Sloan that Whit-
man occupied checker status. In contrast, not only has
Gautier initially listed Whitman in this meeting as one of
five maintenance employees, but Gautier has also asserted
that there was subsequent use of Whitman in maintenance at
Savannah (below). I do not credit Sloan’s claim that Whit-
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
man’s status was that of a checker, though Sloan may well
have been told by the Employer that it had Whitman working
down there as a checker on the occasion of the assault inci-
dent. Sloan’s use of that circumstance I find was itself more
likely opportunistic. Neither am I persuaded, nor do I credit
on this record, that Sloan was not concerned because his
membership was not involved, because it was a matter be-
tween checkers or involving members of the Checkers
Union. That some of Sloan’s union membership was present
at the time of the incident would appear as at least more
probable on this record.
Sloan testified, here with substantial corroboration, that
management’s statement on Whitman at that meeting was
one of just informing the unions what CATS was going to
do with Whitman, namely, Shinn said that they had decided
to put Whitman on as management, making him a supervisor
or company man. Sloan later testified (consistently) that the
only other thing that Sloan remembered about Whitman was
Shinn’s telling them the Company had decided to put Whit-
man on with management, because Shinn knew there were
some problems between Whitman and David Seaton, a clerk.
Sloan testified that he (Sloan) didn’t say anything in reply.
Neither did Sloan recall Clerks and Checkers’ president
Hammonds, or any one else, say anything in this meeting
about Whitman.
Vaught specifically confirmed Shinn’s mention in this
meeting that Whitman would be with management. Vaught
otherwise generally corroborated Sloan on Whitman in testi-
fying that to Vaught’s knowledge neither Sloan, Hammonds,
nor Rose had ever made any comment about any employee,
or anyone by name, during that meeting.
Some Preliminary Conclusions on the
Whitman Discussions
Sloan’s statement of having no interest or concern in the
Whitman-Seaton incident because the incident was basically
between checkers is discredited in certain predicated asser-
tions above. Gautier’s claim that the Union’s comments on
Whitman (i.e., on membership nonavailability) produced a
distressing effect on Gautier was even more unconvincing.
Gautier’s account of being distraught over the Union’s posi-
tion on Whitman was simply inconsistent, and (I find) an un-
convincing overdramatization, as appears evident when it is
compared with Gautier’s acknowledged prior awareness of
the Whitman-Clerk incident, including CATS’ current plan to
make Whitman a supervisor on that account. Any intervening
union statement aside, I credit Sloan’s (corroborated) recol-
lection of what CATS’ management had said of Whitman,
namely, that Shinn announced in this meeting that CATS
was making Whitman a supervisor because Shinn knew there
were some problems between Whitman and David Seaton, a
clerk. In regard to the intervening union statements, I need
not resolve whether Sloan or Hammonds (or neither) had ear-
lier said, after Whitman’s name was first listed as one of five
mechanics (and/or as part of a response in a discussion of
CATS’ openness to the Union’s contact of its employees
about union membership), that there were problems between
Whitman and ‘‘his rank and file,’’ though in that regard, not
only is Sloan corroborated that he did not do so, union wit-
nesses have also denied Hammonds voiced any concern
about any problem arising between Whitman and his mem-
bership. However, I am convinced Shinn’s supervisory an-
nouncement was not preemptive, as union corroborative testi-
mony would seem to indicate.
If a clerk’s involvement in the altercation with Whitman
as compared with presence of some Sloan members on the
dock when the Whitman incident occurred renders an interim
mention of problems between a membership and Whitman as
less likely emanating from Sloan than from Hammonds, the
reported concurrent remarks to the effect Sloan told Shinn
and Gautier to forget about these 2 days, we can’t discuss
them, they would not be accepted in the ILA is no less the
more likely of Sloan’s origin if the point of discussion was
in response to Gautier’s asserted company inquiry (request)
made of Sloan that the Union protect its mechanics by ac-
ceptance of CATS’ full-time mechanics into membership in
the Union, as seems from the weight of Gautier’s evidence
to have been CATS’ request being made of the Union in this
meeting. Any inconsistency aside, the clear thrust of
Gautier’s account is that the Union was being asked to ac-
cept CATS’ full-time mechanics into union membership. In
contrast, though Sloan’s and other union witnesses’ accounts
are that the Union was being asked to accept CATS’ contin-
ued employ of its full-time maintenance employees, they do
not explicitly deny any membership discussion.
The fact is three of the five named mechanics (Whitman,
Dobson, and Shutz) continued in CATS’ employ on a full-
time basis, starting the next day. Although Whitman did so
as a prospective supervisor, he continued to perform mainte-
nance work (e.g., in Savannah), and Shutz did so assertedly
in place of a temporary employee Smith, theretofore reported
and accepted by the Union as full time, and interimly cor-
rected as not such. It is allegedly only Jones who as then a
full-time mechanic on CATS’ payroll that the Union
wouldn’t allow to be continued as such.
(b) Ben Jones
Gautier materially recounted in support of the complaint
allegation that the one that had really floored him was Jones,
and Gautier asserts he still didn’t understand why there was
any reticence on the part of the ILA management at that time
to accept Jones into their rank and file. Gautier has ex-
plained middle management at CATS, naming both
Westbury, predecessor Donnie King, and (employee) Charlie
Dobson, had all spoken very highly of Jones.
Gautier added: Jones was a hard worker; always did what
he was told, when he was told; didn’t abuse his privileges;
was always punctual at lunchtime; and Jones willingly
worked overtime when requested. Gautier then asserted he
had never heard of Jones’ making any trouble, and he didn’t
think he’d ever heard 30 words out of the man in the year
that they worked together. The year last described would
have by far most of its period occurring after May 15, be-
cause Gautier didn’t arrive as a consultant until April. (The
statement is seen to be more a clear instance of Gautier’s
penchant for loose and imprecise fact recount in this record,
here an obvious anachronistic embellishment.)
Gautier asserts he explained that to the ILA at the meet-
ing, and Gautier then specifically asked them why; to please
give Gautier a reason, what’s wrong; and that they couldn’t
tell Gautier any concrete facts; (they said) just things that
they had heard in the rank and file; and made comments that
Jones was known within the rank and file as a troublemaker
(which Gautier later asserted to have been Sloan’s word),
963LONGSHOREMEN ILA LOCAL 1426 (CAROLINA ATLANTIC)
and that Jones had done this or (sic). However, in an affi-
davit given before the EEOC on August 4, Gautier recorded
that he asked Sloan why Jones was not acceptable, that
Sloan said Jones was a troublemaker, and that is all he said.
The latter appears as substantially inconsistent with Gautier’s
hearing accounts.
At the hearing, Gautier continued that he had again asked
what; said give me a specific; and (said) like he knew Whit-
man had had an altercation with one of the ILA members on
the dock, okay, and so (he asked) what did Jones do, and
what specifically did this man do that makes you think he’s
a troublemaker, because we never had any trouble with him.
Gautier asserts he also made the comment at the time that
he thought it was irresponsible.
Gautier then said, he could understand the Whitman thing,
but he thought that it was irresponsible (of the Union) to
make comments disparaging of Jones’ character without any
foundation, and without facts, why Jones would not be ac-
cepted. In that regard, Gautier related that he (seemingly at
some point later) asked various people Gautier knew around
the dock in the stevedoring business, and (found) Jones had
a good reputation, and so, Gautier asserted to this date, he
just didn’t understand why.
In regard to Jones, Sloan has specifically denied that
Gautier at any time had admonished Sloan for making any
comments about Jones. Vaught has generally supported Sloan
in testifying (at least) in regard to this meeting, that to
Vaught’s knowledge neither Sloan, Rose, nor Hammonds had
made any comment about any employee, or anyone by name,
during that meeting. Presently, I do not credit Gautier’s prot-
estations in this area over Sloan’s and Vaught’s denials.
(3) Other factors
(a) An alternative facility was under active
consideration
Though not discussed at the meeting, Gautier relates that
the Company had an alternative under consideration at the
time, namely, a maintenance facility off port, to be manned
by the same personnel, and which ostensively would have
fallen outside ILA’s jurisdiction for maintenance and repair
of equipment (and of which Gautier understood Sloan was
subsequently made aware). However, after looking at the ec-
onomics of moving containers in and out of the facility, the
incurrence of additional trucking charges, the sheer logistics
of running two facilities, and the Company’s being in the fi-
nancial situation that it was then in, economically, that (alter-
native) was (determined) not feasible.
(b) Other economic considerations at play
Even more pressing economic considerations were then
operative. Gautier has significantly revealed that though the
above Wilmington maintenance problem was a big problem
for CATS, it was not the only matter then being considered.
At this time, the Company had been in operation for some
8 months; and it was already $3.5 million in the hole. The
Employer had customer service, marketing, and other oper-
ational problems in Puerto Rico; it had this labor dispute;
and it had just opened up the Savannah operation that had
required Gautier’s traveling back and forth to Savannah (as
well as the above problems requiring him to travel back and
forth to Puerto Rico). Thus, Gautier has testified credibly
there was a myriad of things going on (pressures) involving
Shinn’s and Gautier’s efforts to bring the Company into gen-
eral profitability.
2. Gautier’s late afternoon call to Local 1426 on Shutz
Gautier asserts he called Sloan that afternoon on the tele-
phone to talk about Roy Shutz as a full-time employee.
Gautier otherwise relates, he told the Union later that after-
noon that Shutz occupied a full-time employee status, and he
asked the Union to put Shutz on as a permanent employee,
because he had mixed up Shutz and Smith at the meeting.
According to Gautier, Sloan did not immediately agree as
there was something, which Gautier then could not recall,
that had to be checked out. Vaught’s recollection has Shinn’s
making a call late that afternoon to Vaught, reporting a mis-
take was made on Shutz, who was a full-time employee, and
Sloan recalls no discussion of Shutz in the meeting and a
conversation with Gautier the following morning at CATS’
facility. Vaught’s and Sloan’s accounts conflict with
Gautier’s, and both such conflicts would suggest Shinn made
the call to Vaught. Be that as it may, it is more likely a
CATS’ contact on the Shutz matter was later that afternoon
with Vaught not Sloan.
Gautier asserts, in offered justification of his partial recol-
lection, why else would he have employed Shutz on a (spe-
cial) job for 2 weeks. Thus, Gautier relates that he also told
the Union that until they could get all of that straight, and
Sloan could make a determination on what the ILA was
going to do, they were going to hire Shutz directly, and put
Shutz on some special projects, until they could work out the
transition. (At this time, CATS was leasing and buying
equipment up and down the east coast for the operation.)
Gautier relates he allowed CATS’ local or midman-
agement to put Shutz directly on CATS’ payroll and to put
him on the road to go inspect and repair equipment in Balti-
more, and as far north as New York, and that when Shutz
came back, everything was sorted out. In contrast with
Gautier’s recollection above, it is clear on the record that
Shutz had remained working in the maintenance area at the
Wilmington facility during at least the next few days of that
week.
Weight of evidence that is deemed the more credible has
convinced me, and I accordingly find that the first Company
call to the Union asserting a mixup on Shutz was to Vaught,
not Sloan and promptly agreed to by the Union, if not that
afternoon by Vaught, at the latest in a conversation between
Gautier and Sloan the next day. Thus I find a CATS’ call
was more likely received at the hall that afternoon by Vaught
as Vaught (otherwise) recounts. I further find what had re-
mained to be checked out that afternoon, if anything, was
more likely a matter of Vaught’s effecting Sloan’s notice of
the Company’s report of a mistake made on Shutz as a full-
time employee and Sloan’s OK on a change.
3. The related question of a traveling work
assignment to Jones
Although not initially recalling it when testifying (as the
General Counsel’s 611(c) witness), Sloan later related Shinn
had stated something about Jones in this (May 15) meeting,
namely, that Shinn was going to put Jones on the road trav-
eling, surveying equipment. Sloan then recalled that they had
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
said that they had a lot of equipment that was damaged—
some they didn’t know where it was—and that Jones’ job
would be to survey the equipment. In that regard, Sloan re-
lated (without contradiction) that surveying the Company’s
equipment is a management job, not covered by the contract.
Finally, Sloan has testified that even if Jones at the time
was a full-time employee, since Shinn had told Sloan what
(nonunit) job Jones would be doing, Sloan thereafter had no
reason to continue discussion of Jones. Vaught corroborated
Sloan in that Vaught remembered Shinn saying that Jones
would be doing some surveying for him because he had a
lot of boxes that needed to be inspected to be repaired, and
Vaught recalled that Shinn mentioned Charlotte and Savan-
nah. Respondent’s witness Rose has confirmed that Jones’
name was discussed in connection with travel, but he (only)
not at this meeting; rather at another CATS’ meeting with
Sloan, Vaught, Hammonds, and himself, that Rose recalled
was held later that week, around May 17 or 18 (below).
The General Counsel’s established reference to Jones’
traveling and surveying equipment does not appear in
Sloan’s prior affidavit. Moreover, Gautier denied that in this
meeting Gautier had announced that Jones was hired to go
up and down the road. However, Gautier acknowledged that
there could have been other meeting(s) held that week.
Gautier also admitted Jones was subsequently hired to go to
work in the Savannah stevedoring operation. It is clear Jones
did other work as well.
Sloan states employment matters were essentially resolved
in this meeting, and the final outcome of the meeting was
that CATS would place an order that afternoon to the
Union’s hall. Sloan also recalls that the Union posted the
order on the board, and the Union sent (sic) qualified me-
chanics down there the next morning. As noted Jones re-
ceived word from Westbury in the early morning hours of
May 16 that Jones was no longer employed at CATS.
Only two container repair mechanics (Dobson and Shutz)
are shown clearly of record employed at CATS’ facility on
the next day. It is unclear whether Whitman was immediately
sent to Savannah. It is in any event clear of record that nei-
ther Jones nor Smith was employed there the next day
(whether May 16 or 17). Smith recalled he was not em-
ployed at CATS until a week or two later, when Smith once
again was employed there as a temporary through Olsten, as
was (assertedly) Jones at some point. (If Jones was employed
earlier than Smith, it was clearly not the next day.)
4. The May 16 Jones-Sloan conversation
As noted the Unions had promised CATS a smooth transi-
tion and operation. Sloan asserts in that regard that they went
down there each morning during the first week of that oper-
ation to make sure that the operation was going smoothly.
On the morning of May 16, Jones went to CATS’ premises.
Jones relates he had a conversation with Sloan that morning
somewhere between 8–9 a.m., outside CATS’ gate at the
state port authority.
Jones relates that he assumed that Sloan then knew Jones
was a (former) CATS’ employee. Jones’ version of their con-
versation is that Jones asked Sloan why Jones wasn’t accept-
ed into the Union, and Sloan told Jones that some of the
members of the longshoremen local had said Jones had
made some comments about or to some of the brothers up
at the Sportsman’s Club. In subsequent cross-examination,
Jones denied Sloan had also said that the only thing Sloan
had ever heard about Jones was (something) through the
Sportsman’s Club.
In passing I note Jones’ account does not assert Sloan said
or implied Jones’ comments made about or to some of the
(Union) brothers who were in attendance at the club, were
about union or any other protected concerted activity matter,
or about Jones’ refraining from same. The Sportman’s Club
is a black-owned club where a lot of longshoremen (ILA)
members spend their time after hours, but it is not attended
exclusively by them, as Jones, who was never a member of
the ILA, was there. (Sloan is not a member of the
Sportman’s Club, and he has only been there a couple of
times. Though Jones has attended the club, the record does
not indicate how often.)
Sloan and Vaught first visited CATS’ premises the morn-
ing after the Union’s afternoon meeting with Shinn and
Gautier. Sloan’s version is that on his way in to CATS, a
gentleman (accompanied by another man), whom he later
found out was Jones (and Smith) approached Sloan and said,
‘‘[H]ey Willie, can I see you a minute,’’ or ‘‘Willie, can I
talk with you?’’ At that time Sloan said that he was in a
hurry, that he had some guys working in the facility, and that
he had to go in and talk with them first and make sure the
operation got started smoothly and/or make sure they got to
work. Sloan went into the facilities to try to get everything
off to a good start.
Sloan denies that he or Vaught went out to the docks for
the purpose of interviewing or soliciting individuals to join
the Union. Indeed, contrary to Gautier’s view of the same or
claimed report of such observation by another, Sloan has tes-
tified that Sloan has never interviewed anybody to join the
Union. Sloan acknowledged that he may have introduced
himself to the (maintenance) men (working) that morning,
and talked with the men to make sure everything went
smoothly, but Sloan asserts that they didn’t have any con-
versation (about the Union) that day. There is no offer of
evidence from Dobson or Shutz to the contrary.
Sloan otherwise confirms that Gautier saw Sloan out in the
yard, and when he did, Gautier called Sloan and asked if
Sloan would stop by his office before he left. Sloan did. Ac-
cording to Sloan, Gautier told Sloan on this occasion that he
had forgotten one of his full-time employees, Roy Shutz.
Gautier said, he was sorry, and that he knew Sloan might not
want to accept it, but they had forgot a full-time employee.
Sloan asked pointedly if Shutz was a full-time employee
and, when Gautier said yes, Sloan said, ‘‘[I]f he’s a full time
employee, we won’t have a problem, providing you’re not
going to let one of the guys go that you already ordered.’’
Gautier said, ‘‘[W]ell, that ain’t no problem, we want to
keep Shutz on, plus the guys that they ordered from the
Union Hall.’’ Sloan then told Gautier it wasn’t a problem.
When Sloan started out from CATS, and headed toward
his car, Sloan has Jones again approach Sloan. Sloan relates
that Jones then told Sloan who he was. In that regard, Sloan
at first related he thought Jones also said something to Sloan
about the fact that CATS had let him go, or somebody had
told Jones he couldn’t work there any longer, but Sloan was
not positive of that.
Sloan’s version of the conversation that followed is that
Jones had first asked Sloan what did Sloan have against
Jones, and Sloan told Jones that Sloan didn’t have anything
965LONGSHOREMEN ILA LOCAL 1426 (CAROLINA ATLANTIC)
against Jones. Notably, Sloan has confirmed that Jones had
then asked Sloan why he couldn’t get accepted in the Union.
Sloan’s version is Sloan then asked Jones, ‘‘[W]ho said that
you can’t be accepted in the Union,’’ and that Jones had
said, ‘‘that that’s what he heard, or something.’’
Sloan later recalled hesitantly, and thus less convincingly,
Jones said he had heard it, ‘‘Westbury or somebody had told
Jones that he couldn’t be accepted into the Union.’’ (Sloan
subsequently related he didn’t know if it was Jones who had
told him that morning, or somebody had told Sloan later, i.e.,
at an EEOC hearing Sloan attended, that Westbury was the
one that had called Jones at his house, and told him he was
fired. In any event, Sloan has specifically denied, without
contradiction, as of this time ever having had any prior con-
versation with Westbury. It is uncontroverted of record that
Operations Manager Westbury had not attended the meeting
with the Unions the day before.)
Sloan asserts that he then told Jones, ‘‘it’s never been dis-
cussed,’’ and that Sloan also told Jones, ‘‘I can’t tell you
whether you’d be accepted into the Union or not. I don’t
have that authority.’’ Sloan recalled only further at first gen-
erally that Jones had asked a couple of more questions, and
Sloan then walked on off to his car and left, asserting, that
he didn’t tarry but just a minute there.
Although at first, Sloan asserted that that was basically it,
Sloan later recounted, contrary to a Jones’ denial, that he did
tell Jones that Sloan didn’t know Jones; that he didn’t know
anything about Jones; and that he said that he had just
heard one of his members say they had seen Jones up to the
club, or something on that order. (On cross-examination,
Jones had earlier also flatly denied that Sloan had said, ‘‘I
don’t know you; I have never met you.’’) Sloan later re-
peated that this was the first time he had seen Jones, and that
during this conversation, Sloan had told Jones that Sloan had
nothing against Jones. On other occasion, Sloan related that
he said, ‘‘I don’t know you. I don’t even know who you are,
why would I have anything against you.’’
Sloan asserts that at this time, he was just trying to let
Jones know that Sloan didn’t know Jones, didn’t have any-
thing against Jones, and that Sloan couldn’t have anything
against Jones, when Sloan didn’t know Jones. At the hearing
Sloan related that he had said to Jones that the only thing
he ever heard about Jones was that some members had men-
tioned his name, said they heard his name mentioned, or
seen him at the Sportsman’s Club or something.
Sloan has testified, in explanation of the latter remark, that
what he was telling Jones at the time was that he was trying
to show Jones that he didn’t know him, so why would he
have any reason to be against Jones, if he don’t know him.
Called as a witness by the General Counsel to support Jones,
Smith’s testimony (and notably without any cross-examina-
tion by Respondent) was at best only limitedly persuasive or
supportive.
Initially, Smith recounted that Jones asked Sloan, ‘‘[W]hy
couldn’t we [sic] accept him in the Longshoreman Union
(with) the rest of the fellows that was working.’’ (Smith was
not a member of the ILA.) Smith then related (contrary to
Jones’ account) that Sloan said that he heard that ‘‘we [sic]
was talking about the Union and the fellows,’’ but otherwise
(this time) more in accord with Sloan’s assertion of state-
ment that Jones’ acceptance in membership in the Union was
not up to him, namely, that Sloan said, he didn’t have noth-
ing to say about it, and that Sloan had then turned and
walked away. Smith next recounted that when Jones asked
Sloan, why wasn’t he accepted in the Longshoreman, with
the rest of the guys, that Sloan said this time that ‘‘he
[Sloan] heard what we [sic] was talking about, the Long-
shoremen and the fellows’’ (but, seemingly relating back to
the membership subject) that Sloan said he didn’t have noth-
ing to say about it, and that Sloan had just turned and
walked away.
In being asked to recount (clarify) the incident a third
time, Smith then (disjointedly) related, Jones asked, ‘‘[W]hy
come we accepted [sic] to work with the rest of the fellows
in the Longshoremen,’’ that Sloan said nothing to Jones, and
that Sloan turned and walked away. When then finally
pressed (a fourth time) by the General Counsel as to what
Sloan had said to Jones before Sloan walked away, Smith re-
plied generally that Sloan told Jones every word Smith said
before, and then Smith recounted (again contrary to Jones),
that Sloan said that he (Sloan) heard that he (Jones) was
talking about the fellows in the Longshoremen and he was
talking against them, and that Sloan had just turned and
walked away after that and didn’t have nothing else to say.
In the above circumstances, I decline to credit Smith’s ac-
count(s) beyond his support of Jones that Jones had asked
Sloan, why wasn’t he accepted in the Longshoremen with the
rest of the guys. I specifically do not (selectively) credit any
Smith recount of Sloan’s saying, in substance or effect, that
Sloan heard Jones was talking against the Union or its mem-
bers. In my view, these are not minor variations in Smith’s
testimony.
5. Alleged union interviews of Dobson and Shutz,
union membership inquiry by Dobson and Shutz, not
extended to nor sought by Jones
Sloan relates that they (the Union) did talk from time to
time with the men, including maybe that day, as they had to
talk because the guys was just getting started on a new oper-
ation, and the Union wanted to make sure everything went
smoothly. Sloan otherwise relates he did go back the next
day; indeed, he went back every day that week. On the next
(second) day that they were at CATS’ facilities, (I find) May
17, Wednesday, Sloan testified that Dobson and Shutz ap-
proached Sloan and asked how they’d go about joining the
Union.
Sloan’s account is that they were the only employees to
approach and ask him for the procedure to go through to get
in the Union. Sloan testified that Dobson and Shutz told
Sloan they wanted to sign up for the Union and wanted to
sign a dues card. Sloan then told them the procedure for
joining the Union. Sloan did not sign them up right then and
there, testifying that he couldn’t do that. However, Sloan ex-
plained the procedure to them that must be followed when
individuals wish to become a member of the Union. The men
have to first write a letter to the Union requesting member-
ship. That letter goes before the Union’s executive board.
The Union’s executive board makes a recommendation to the
full (union) body, which then either accepts or rejects the let-
ter with its recommendation.
Sloan has testified (without subsequent contradiction) that
Dobson and Shutz thereafter went through this procedure.
The Union received the letters from them (Dobson and
Shutz) in early June, the matter came up before the full body
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which voted on it in June, both Dobson and Shutz were ac-
cepted into the Union in July, and they are still members of
the Union today, though no longer employed by CATS at
Wilmington.
Respondent Union also established in contrast with the
above actual process, and Gautier’s hearing assertion of
Sloan’s acknowledging to Gautier that he had interviewed
the men that first day, that Gautier had recorded in his affi-
davit given the EEOC on August 4:
I heard from Wes Westbury, the operations manager,
USA [th]at Sloan and Vaught came down and inter-
viewed Dobson and Shutz either the afternoon of the
meeting or the next day. At that time they signed up
with the Union.
In contrast, on cross-examination, Jones acknowledged that
he has never been a member of the ILA, that he never set
foot in the ILA hall during the time Jones was working at
CATS, that he never had asked for an application to become
a member of ILA Local 1426, and that he never entered the
hiring hall of Local 1426 after his termination with CATS
to seek a job. However, Jones also testified credibly that he
was never told about making an application.
6. The meeting of May 17 or 18
Rose alone has related that about May 17 or 18 that they
(Shinn and Gautier) came in and said they had another man
that they forgot to mention Ben Jones, and they said that
they wanted him to go to Savannah and work with them and
to travel around with them. Rose recalled that Shinn said
Jones was to work checking in the chassis and the con-
tainers, the repair on the containers; to monitor all the work
(at) Port Wilmington, Savannah; and to travel around with
them. According to Rose’s recollection, after a lengthy dis-
cussion, the Unions had no objection, and it was agreed
Jones would continue to work with them.
7. Jones’ subsequent employment
To the extent any Jones’ testimony indicates of record that
he did not get back on CATS’ payroll through Olsten until
October 23, working 2–3 days a week, such testimony is
against the clear weight of more consistent evidence and is
not credited. Other Gautier testimony would indicate CATS
worked Jones soon after his May 15 termination on some
maintenance problems in Savannah and that CATS for a pe-
riod thereafter had worked Jones as above, once again as a
temporary employee through Olsten (until October), with the
claim that Gautier’s middle management didn’t want to lose
Jones because of Jones’ versatility in repairing containers,
and because Jones could drive forklifts and do other things.
Indeed, Gautier revealed that (status) had rocked along until
Jones did what he had to do in regard to filing charges.
However, in contrast with the above indicated renewed tem-
porary employment of Jones at CATS as an Olsten em-
ployee, the parties had (earlier) stipulated (and placed in evi-
dence only) Jones’ W-2 wage and tax statement for 1989
showing CATS as the Employer of Jones.
It is warranted to be observed that on other occasions
Gautier’s testimony about the specific employment of Jones
on jobs otherwise vacillated. Initially Gautier related Jones
had been sent down to Savannah two times on maintenance.
Gautier then asserted it was Whitman who was first sent, and
Jones later, but then changing it to Jones being sent only one
time. Incongruously, Gautier has also related that Jones usu-
ally went down to keep tow motors or yard hustlers running
and to do general maintenance. Finally, and in apparent ef-
fort to cover any revealed discrepancies, Gautier then offered
blanket assertion that they were always alternating all types
of personnel between the two ports in order to maintain con-
tinuity of operations.
In contrast, Vaught relates that he didn’t know Jones (by
sight); and he didn’t see Jones at the facility for about 2–
3 weeks. At that time Vaught observed an individual doing
some incidental work and, on inquiry of another employee,
Vaught was told it was Jones. Vaught never spoke with
Jones. (Jones acknowledged that, other than Sloan, Jones
never had any conversation with any officer of ILA Local
1426.)
Vaught relates that he did not see Jones working there reg-
ularly thereafter, but rather he usually saw Jones there only
when a barge was in. Most of the time Vaught observed
Jones working on maintenance service of turnbuckles that are
used to stabilize containers on a barge. The service, or main-
tenance of the turnbuckles, though (apparently) performed in
the maintenance shed, is considered gearman work, and not
considered the work of the longshore container mechanic
unit.
8. The Employer settlement and other considerations
The Union had subsequent conversations with CATS about
employees working on the vessels, but not about its mainte-
nance men, with one asserted exception. After the Employer
worked Jones as a temporary employee through Olsten,
Gautier relates,
I don’t remember how long that rocked on like that and
then, of course, Ben did what he felt he had to do to
protect his rights and I think we subsequently settled
with the NLRB and the dates escape me again. I as-
sume it was sometime late summer or early fall of ‘89,
and in our settlement we agreed to take Ben back and
he came back to work for us full time in the shop for
three or four months, until the company actually wound
up completing their merger deal with a company in
Florida; closed Wilmington, and moved.
Although (strainedly) eschewing personal awareness of
any of the details, Gautier subsequently acknowledged that
on CATS’ counsel’s recommendation in the fall, Gautier
made the decision to settle an unfair labor practice charge
that Jones had brought before the NLRB against the Com-
pany. (Respondent established that Gautier had given no
prior affidavit during an investigation of the NLRB charge
Jones brought against the Employer and the General Counsel,
and that Gautier had done so in regard to an EEOC inves-
tigation.) Gautier acknowledged that as part of the settlement
CATS agreed to take back Jones full time in the same posi-
tion Jones had before, and that Jones remained in CATS’
employ thereafter until CATS had to close down its Wil-
mington operation, at that time releasing 16 employees, in-
cluding Jones.
Although not without some confusion arising from an ear-
lier reference to receipt of an EEOC charge and hearing in
967LONGSHOREMEN ILA LOCAL 1426 (CAROLINA ATLANTIC)
which Sloan was also present (though apparently not involv-
ing Respondent Union), Sloan testified (I find) regarding an
unfair labor practice charge that Jones brought against the
Employer, that Sloan was out of town when Vice President
Vaught called and told Sloan the Company had called and
said they had agreed with the Labor Department (sic) for
Jones to go back to work down there. On that occasion,
Vaught asked Sloan what should he do. Sloan said, ‘‘[L]et
him go to work, we don’t have anything to do with that.’’
Gautier later revealed that the merger had not actually
gone through. Merger negotiations started in September with
Ocean Line of North Florida, a competitor out of Fernadino
Beach, Florida. The merger went to about 80 percent of com-
pletion. In the process of trying to accomplish an economy
of scale in consolidated operations, CATS’ management de-
cided to close Wilmington, which happened in mid- to late-
January 1990. In March 1990 the merger fell apart. CATS
has subsequently filed for protection under Chapter 7 of the
Federal Bankruptcy Code in March 1990 and, apparently at
time of hearing, Ocean Line was itself under Chapter 11. In
asserting that the case does not lie against the Union and in
urging the dismissal of the charges here, the Respondent
Union in brief argues that Jones’ recovery is against the Em-
ployer, and that Jones ‘‘should recover whatever he seeks
from CATS by the filing of the necessary claim of lien with
the trustee in bankruptcy.’’
Sloan has testified repeatedly that he had nothing against
Jones and that he had never told anyone for CATS that he
did not want to see Jones (employed) there and, specifically,
that he did not meet Westbury until about a week after they
had signed the agreement, and that he never had any con-
versation with Westbury and specifically none about the
men.
Analysis, Conclusions, and Findings
In general a protected status under the Act may extend to
all employees, whether the employee be full time or part
time; an applicant or a probationary; permanent or steady;
casual or temporary; or the individual actually be an em-
ployee of another employer. The Board has held that a dis-
charge of a casual employee, probationary employee, or
nonunit temporary employee constitutes a violation of the
Act where a discharge is based even in part on the employ-
ee’s union or other protected concerted activities, Escada
(USA), Inc., 304 NLRB 845 fn. 4 (1991); Lafferty Trucking
Co., 214 NLRB 582, 583–585 (1974); Amole, Inc., 214
NLRB 67, 68–69 (1974) .
In Radio Officers v. NLRB, 347 U.S. 17, 41–42 (1954), the
Supreme Court centrally observed:
[A]n employer can discharge an employee for nonmem-
bership in a union if the employer has entered a union
security contract valid under the Act with such union,
and if the other requirements of the proviso are met. No
other discrimination aimed at encouraging employees to
join, retain membership, or stay in good standing in a
union is condoned.
The Court also said, id., 42–43, and as noted in Teamsters
Local 357 v. NLRB, 365 U.S. 667 at 674–675 (D.C. Cir.
1961), explicated:
The language of § 8(a)(3) is not ambiguous. The un-
fair labor practice is for an employer to encourage or
discourage membership by means of discrimination.
Thus this section does not outlaw all encouragement or
discouragement of membership in labor organizations;
only such as is accomplished by discrimination is pro-
hibited. Nor does this section outlaw discrimination in
employment as such; only such discrimination as en-
courages or discourages membership in a labor organi-
zation is proscribed.
The gravamen of the related 8(b)(2) violation is that a
union may not:
cause or attempt to cause an employer to discriminate
against an employee in violation of subsection (a)(3) or
to discriminate against an employee with respect to
whom membership has been denied or terminated on
some ground other than his failure to tender the peri-
odic dues and initiation fees uniformly required as a
condition of acquiring or retaining membership. [Id.,
52–53.]
On union encouragement, the Court had earlier explained,
id. at 40:
The policy of the Act is to insulate employees’ jobs
from their organizational rights. Thus §§ 8(a)(3) and
8(b)(2) were designed to allow employees to freely ex-
ercise their right to join unions without imperiling their
livelihood. The only limitation Congress has chosen to
impose on this right is specified in the proviso to
8(a)(3) which authorizes employers to enter into certain
union security contracts, but prohibits discharge under
such contracts if membership ‘‘was not available to the
employee on the same terms and conditions generally
applicable to other members’’ or (if) ‘‘membership was
denied or terminated for reasons other than the failure
of the employee to tender periodic dues and initiation
fees uniformly required as a condition of acquiring or
retaining membership.’’ Footnotes omitted.
On the matter of evidenced discrimination, first, there is
no independent evidence of the Union’s discriminatory oper-
ation of its hiring hall. There is nothing of record to indicate
that the Union’s hiring hall gang and other seniority referral
structures were operated in material times in a discriminatory
manner, whether the Union’s hiring hall be considered as op-
erated under subscription agreement, contract, or any other
course of union conduct established here.
It appears to be uncontested of record not only that regular
gangs that are referred, though presently composed of all
union members, are all based strictly on seniority, continue
to be reconstituted on that basis when and as required, and
that any vacancies in gangs are filled irrespective of union
membership. The Union has regular and ongoing occasion in
the operation of its exclusive hiring hall to non-
discriminatorily refer many nonunion employees.
There is no evidence of an unlawful closed shop in this
proceeding, either contractually or by arrangement, practice,
or understanding. Whatever may be the evidentiary support
on this record otherwise for an inference to support a conclu-
sion of presence of some form of union-security clause in the
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contract, even if so present (e.g., as effective where legally
permitted), in agreement with the General Counsel, I find
any such contractual union-security provision was clearly
nonenforceable in the State of North Carolina (§ 95–82).
However, there is no independent evidence that such was
ever sought to be enforced by the Union.
Because union membership is not shown or inferable to
have been a qualifying factor in the operation of the Union’s
hiring hall in material times, Section 14(b) may not be here
invoked to permit an application of a state right-to-work law
to a nondiscriminatory hiring hall contractual arrangement
that is privileged by the Act. Cf. Laborers Local 107 v.
Kunco, Inc., 472 F.2d. 456, 458–459 (8th Cir. 1973) (and see
also the cases cited thereat). There the Eighth Circuit perti-
nently said:
Section 14(b) does not empower states to ban all invol-
untary relationships between workers and unions. It
merely allows the prohibition of ‘‘agreements requiring
membership in a labor organization as a condition of
employment . . . .’’ A hiring hall which, though exclu-
sive, does not require union membership does not vio-
late the closed shop prohibitions of 8(a)(3) . . . and
thus, a fortiori, it is not within the ambit of 14(b). [Em-
phasis added, and citations omitted.]
Unlawful closed shop aside then, to establish an 8(b)(2)
‘‘attempt to cause’’ violation, there must be some evidence
of the union’s statement or conduct seeking the involved em-
ployer’s discrimination that encourages (or discourages)
union membership. It is not sufficient that the Employer’s
conduct might be expected to please the union, Toledo World
Terminals, 289 NLRB 670, 673 (1988); nor, it would seem
correlatively, is it to be deemed sufficient if it appears the
employer elected on its own to act in some such discrimina-
tory manner with a reasonably inferable purpose to preempt,
or to defuse self-perceived, difficult economic, or other de-
bilitating or problemsome situations with the union, but with-
out proof that the union actually caused or attempted to
cause the Employer’s apparent unlawful action.
There must be some admissible evidence that will support
a union’s causal nexus; if not a union’s demand, then some
evidence of a union request for some adverse discriminatory
employment action, Laborers Local 158 (Contractors of
Pennsylvania), 280 NLRB 1100 (1986). If an explicit de-
mand or request for a discriminatory employer adverse job
action be not present, then there must be some equivalent
evidence of an intended discriminatory employment pressure
or inducement, reasonably to be attributed to the union. Cf.
Teamsters Local 287 (Consolidated Freightways), 300 NLRB
539, 537 fn. 18 (1990). (There a union representative told an
employer representative that the employer had employed
three individuals who were not active union members, in-
cluding a named 8(a)(3); that the union was going to file a
grievance, and that the employer was obligated to first em-
ploy certain individuals named on an (ineffective) list the
union had given the employer to use when the hall was
closed.)
If not involving some such expressed union threat of retal-
iation, there must then be some other form of union conduct
sufficient to reveal an unlawful union intent to arouse the
employer’s fear that a hire, reemploy, or as here a continued
employ by the Employer of an individual questioned by the
Union ‘‘will result in economic pressure against him,’’
Bricklayers Local 18 (Ferguson Tile), 151 NLRB 160, 163
(1965); but not a mere employer awareness there exists inter-
nal union difficulties with an employee, Laborers Local 158,
supra; or employer awareness that the employer’s own other
employees’ may have difficulties with the employee, even if
the same be a condition reported to the employer by the
union, see, e.g., Sheetmetal Workers Local 67 (George Wil-
liams Sheetmetal), 201 NLRB 1050, 1055 (1973); Conti-
nental Overall Co., 116 NLRB 1588, 1589 (1956); and Stu-
debaker Corp., 110 NLRB 1307, 1320, 1324–1326 (1954),
affd 229 F.2d 138 (7th Cir. 1956).
The central considerations in all such cases appear to be
whether a union official is (only) conveying attitudes of its
members, or passing on a desire of the union itself for an
employer’s adverse employment action, or whether what was
actually involved was some improper union advancement of
questions of union membership obligations and policies, or
what was actually involved were union antagonistic positions
on an employee’s union activity, union fealty, or other statu-
tory protected activity. However, a union reference to union
membership will not by itself be controlling, if all the cir-
cumstances warrant a contrary finding of lawful action in-
tended, Hellenic Lines, 228 NLRB 1, 7 (1977).
There is no independent allegation in the complaint that
the Union failed to fairly represent Jones as a unit employee
in violation of Section 8(b)(1)(A). Cf. Federated Department
Stores, 287 NLRB 951 (1987); nor is it alleged in the com-
plaint that the Union has denied Jones’ membership in the
Union because of Jones’ union or other protected concerted
activity or desire to refrain from such.
Finally, Section 8(b)(1)(A) proscribes a union from re-
straining or coercing employees in the exercise of their Sec-
tion 7 rights, but with the explicit statutory provision, how-
ever, that ‘‘this paragraph shall not impair the right of a
labor organization to prescribe its own rules with respect to
the acquisition or retention of membership therein.’’ In that
regard, although a union cannot use an employer, as in hiring
hall circumstances, as its surrogate to enforce the Union’s in-
ternal affairs, Longshoremen Local 1408 v. NLRB, 705 F.2d
1549, 1552 (1983), this does not mean that a union may not
otherwise internally regulate its own affairs, including the
above statutorily explicit matter of determining its own union
membership, as it there pursues enforcement of a ‘‘properly
adopted rule,’’ which ‘‘reflects a legitimate union interest,’’
thereby ‘‘impairs no policy Congress has imbedded in the
labor laws’’ and ‘‘is reasonably enforced against union mem-
bers who are free to leave the union and escape the rule,’’
Scofield v. NLRB, 394 U.S. 423, 430 (1969). The Union’s
rules governing an individual’s application for membership
in Local 1426 qualify thereunder.
In general, a union and an employer may enter agreement
pursuant to which the union will operate a hiring hall referral
service for referral of casual or temporary employees on a
nondiscriminatory seniority basis to the employer for em-
ployment, Teamsters Local 357 v. NLRB, 365 U.S. 667
(1961), and with other appropriate objective qualifications,
Hellenic Lines, 228 NLRB 1, 2 (1977).
The General Counsel has centrally argued that the Board
has held that a lawfully contracted exclusive hiring hall pro-
vision (or arrangement, practice, or understanding establish-
969LONGSHOREMEN ILA LOCAL 1426 (CAROLINA ATLANTIC)
ing such) may not be applied retroactively, i.e., to justify the
discharge of an employee hired before the contractual hiring
hall provision, practice, or understanding had become effec-
tive, Austin & Wolfe Refrigeration, 202 NLRB 135 (1973);
citing Teamsters Local 676 (Tellepsen Petro-Chemical), 172
NLRB 948 fn. 1 (1968).
The parties have elected not to introduce the applicable
contract(s) into evidence. Nor did they introduce the written
provisions of the hiring hall. There is vagueness in the testi-
mony of record bearing on the contract(s) negotiated on May
12 and as to the explicit terms of the related hiring hall pro-
visions. Although actual contract(s) negotiated is (are) not in-
troduced in evidence as exhibit(s) and, although the parties
have also stipulated that a combined unit of the Employer’s
longshoremen and container maintenance mechanics em-
ployed at Wilmington is an appropriate unit for the purposes
of collective bargaining, on the basis of the evidence of
record on the Union’s prior practice in negotiating separate
contracts with others, and other record evidence which is
supportive of that practice continuing with the Employer,
e.g., the Union’s proposals to CATS initially and especially
in those circumstances, in the absence of any evidence spe-
cifically to the contrary, I infer and I find that on May 12
the Union and the Employer negotiated separate contracts for
longshoremen and for container maintenance mechanics, in
keeping with the Union’s apparent practice in the past.
The General Counsel’s arguments would appear not to dif-
fer in either event. See, e.g., on separate units, cf. Electrical
Workers IBEW Local 323 (Active Enterprises), 242 NLRB
305, 308–309 (1979), where the Board held separate units
voluntarily bargained by parties could not be unilaterally at-
tacked. There, with the expiration of one contract in an es-
sentially restructured unit of residential electricians, the hir-
ing hall provision of the remaining (originally inclusive)
commercial electricians’ contract could not be automatically
then applied to the residential unit by the Union.
There is some degree of confusion as to terms of the hir-
ing hall service as made applicable to mechanics. In the ab-
sence of written provisions of the hiring hall in use being in
evidence, I conclude on the record before me that the parties
had generally agreed as part of the contracts negotiated on
May 12 that the Union would provide a similar exclusive hir-
ing hall service for the Employer’s mechanics as for its long-
shoremen. However, in light of the May 15 meeting, I infer
and find that the parties had not theretofore explicitly agreed
to terms for the exclusive hiring hall referral service’s appli-
cation to permanent, full-time (steady) mechanics, let alone
considered details of its application to part-time, casual,
and/or temporary employee(s) employed by or at CATS.
Rather, I conclude and find those were details discussed in
the meeting of, and (essentially) determined on, May 15.
In the underlying Tellepsen case, supra, the Board specifi-
cally noted that in finding a violation, it was relying solely
on the grounds that there was no contract, arrangement, or
course of conduct which would establish a lawful hiring hall
agreement at the time the employee was hired. The Board
then held that because the union had no contract right, the
union was actually seeking a compliance of the employee
with an obligation of the union’s membership. Essentially,
the General Counsel has discounted the (August 1988) exist-
ence of the subscription agreement that was applicable before
Jones was hired, because that temporary agreement did not
extend any coverage to container mechanics.
Though container mechanic coverage was a subject of the
union proposed negotiation at the outset, and eventually ne-
gotiated, the parties had initially proposed separate agree-
ments, e.g., with the Union’s initially presenting separately
negotiated contracts for the Employer’s consideration and ap-
proval, and with the Employer then counterproposing either
a future signing of an agreement with the Union covering its
container mechanics, or CATS’ use of a local container re-
pair maintenance company for that purpose. Though CATS
also informed the Union at the outset that it then employed
only one container mechanic, and though the Company there-
after during the entire 1988 negotiation only employed tem-
porary container repair mechanic(s), when needed, whatever
the parties understanding, the fact is, as urged by the General
Counsel, the subscription agreement itself did not cover me-
chanics.
Austin & Wolfe Refrigation, supra, acknowledged the ap-
plicable effect of core holdings of Radio Officers v. NLRB,
supra, and the subsequent holdings of NLRB v. Great Dane
Trailers, 388 U.S. 26 (1967); and Teamsters Local 367
Teamsters v. NLRB, 365 U.S. 667, 675 (1961), that for a vio-
lation of Section 8(a)(3) there must be both discrimination
against an employee for union-connected reasons and dis-
couragement of union membership thereby. In Austin &
Wolfe, the Board found that the union there had insisted on
discharge of an individual because the individual had not
been referred by the Union’s hiring hall, or because he was
not receiving union scale, which the Board concluded ‘‘was
the plainest kind of discrimination.’’
In regard to an 8(a)(3) violation alleged and found, the
Board also said in Austin & Wolfe, that an application of the
negotiated lawful hiring hall retroactively was ‘‘so inherently
destructive of employee interests’’ that it may be deemed
proscribed without need for proof of an underlying improper
motive. In a 2 to 1 panel determination, the Board alter-
natively held even if the second category of Great Dane,
supra, were deemed to apply, namely, where the resulting
harm to employees is comparatively slight, and if a ‘‘sub-
stantial and legitimate business end is served’’ the employ-
er’s conduct is prima facie lawful and an affirmative showing
of improper motivation must then be made, that a negotiated
circumvention of the Government’s wage controls in that
case was not a ‘‘legitimate business end.’’
In agreement then with the General Counsel’s central con-
tention, I conclude at the outset and find that under Austin
& Wolfe, supra, the Union was not contractually privileged
to require the Employer to release any of CATS’ full-time
permanent employees that had been hired prior to the time
the agreement was negotiated or understanding reached that
established the Union’s contractual right to exclusively refer
all container mechanics to CATS in the future. However, in
the circumstances of this case, it would then appear less clear
whether the Union could not lawfully take the position with
the Employer on May 15 that with the newly negotiated con-
tract, the Employer had to thereafter use the new contract’s
exclusive hiring hall provisions for a referral of casual and
temporary employees to fill the Employer’s needs for the
employees to work only part of the time, or to do unit work
on which CATS had worked employee(s) of another em-
ployer as temporary. Neither may it in any event be over-
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
looked that it must still be established that the Union had ac-
tually in some manner caused or attempted to cause the Em-
ployer to take some unlawful action in that regard under Sec-
tion 8(a)(3).
Sloan’s assertion that the conversation (of substance) on
the morning of May 16 began with Jones’ asking what Sloan
had against Jones, and Sloan’s reply that he had nothing
against Jones, was not explicitly denied by Jones. However,
I do not credit Sloan in the degree of Sloan’s testimonial
protestations made here that were to the effect that Sloan had
repeatedly told Jones about Sloan not knowing Jones, and
not having anything against Jones. (The protestations ap-
peared incongruous with the attendant circumstances of that
discussion, and are viewed as also inconsistent with Sloan’s
admitted knowledge of Jones from more likely prior reports
of Sloan’s membership.)
However, neither do I credit Jones to the extent he would
assert that Sloan gave Jones no indication Sloan had said he
had nothing personally to do with it. Rather I am convinced
that Sloan not only told Jones that it was Jones’ oral contact
with some members of the Union up at the Sportsman’s Club
that was the reason Jones was not being accepted for mem-
bership in Local 1426, but Sloan had told Jones in substance
and effect that he had nothing to do with it.
Thus, in crediting Jones and Sloan (and limitedly Smith)
that Jones did that morning essentially ask Sloan why Jones
wasn’t or couldn’t get accepted into the Union with the rest
of the guys, Sloan had directly replied it was because some
of the members of the ILA had said Jones had made some
comments about or to some of the (Union) brothers up at the
Sportsman’s Club. It was a stated reason that itself is not
shown on this record in any way related by Jones to Jones’
purported engagement in any actual union or other concerted
activity, nor convincingly in that regard by Smith.
Sloan’s reply is rather directly addressed only to the point
of Jones’ confrontational inquiry of Sloan, namely, why
Jones was being denied acceptance in union membership that
was being made available to others. In this regard I have
carefully considered Jones’ and Sloan’s accounts of this en-
counter on the morning of May 16, and all the witnesses’ ac-
counts as to the meeting the prior afternoon and events there-
after, and I conclude and find there is no evidence at all that
Sloan told Jones or Gautier that the Union would not allow
CATS to continue to employ Jones as its employee, because
of Jones’ lack of membership in the Union. In the absence
of corroboration from anyone else, Smith’s stated but fatally
inconsistent offerings that have only occasionally encom-
passed statements to Sloan of a denial of membership to
Jones for other arguably unlawful reason simply cannot be
selectively credited and are not.
Moreover, the complaint does not in any event allege that
Jones was denied membership in the Union because of his
union or protected activity, nor is it evidenced here that
Sloan or the Union had in any way subsequently prevented
Jones’ nondiscriminatory use of the hall, see Carpenters
Local 537 (E. I. Du Pont), 303 NLRB 419, 421 at fn. 5
(1991). (Sloan did clearly treat Jones disparately in not in-
forming him as a unit member about procedures for union
membership application, as compared with Dobson and
Shutz, though Sloan’s reasonably clear own view of Jones’
likely rejection by the Union’s membership would explain
that.)
Though the same bears on considerations of the content of
the meeting that had occurred the previous day, on which the
General Counsel would appear to also heavily rely, that
meeting does not warrant a different conclusion. On a not in-
significant number of occasions I have found Gautier’s asser-
tions and recollections to be unreliable for reasons that need
not be all revisited here, beyond the noting, in a number of
such instances there were substantial inconsistencies by
Gautier on how the Company had continued to employ and
work Jones, which has given me not insubstantial cause to
question what Gautier has asserted of Jones’ employment
generally.
Nonetheless, and mainly because of Sloan’s admissions in
his conversation with Jones in the following morning, May
16, I credit Gautier’s (unembellished) recollection to the ex-
tent that (I find) in the meeting in the prior afternoon of May
15, and after the Company had named five mechanics, and
had expressed its openness to a union discussion of union
membership with its employees and/or requested that the
Union extend membership protection to them, that Sloan
more probably than not had then replied in substance with
the comment that Gautier’s recollection has attributed to him,
namely that Shinn and Gautier should forget about union
membership for Jones (and Whitman); the Union(s) could
not discuss them, as they would not be accepted in the ILA.
The record is clear however, even in this instance, that the
comment arose in context of the parties’ discussion of union
membership, as raised by the Employer’s request, or inquiry.
Even assuming without finding, Gautier’s unembellished
recollection, that Sloan had also in this meeting referred to
Jones as a troublemaker, that was also but in direct reply to
the Employer’s purported further inquiry why union member-
ship would not be made available to Jones as it would be
to others. (In this instance, given the nature of Gautier’s
uncorroborated recollection, and his clear propensity to exag-
gerate and embellish, as well as the circumstances of Sloan’s
corroborated denials that he had made comments about
Jones, or that Gautier had admonished him on it, I am simply
not convinced Sloan said Jones was a troublemaker in their
meeting of May 15, or that Gautier called him on it. (First,
if Sloan had, and Gautier had called Sloan on it, I am per-
suaded that would also have been a subject of Jones’ inquiry
the following morning. Second, I am persuaded that at this
time the Employer had alternatives under active consider-
ation, in place of confrontation.)
Beyond the above Sloan’s statements to Shinn and Gautier
to forget union membership for Jones, as the ILA member-
ship would not accept him, and Sloan’s statement (essen-
tially) affirming the denial of membership to Jones, there
isn’t any persuasive evidence that Sloan told the Employer
that he wouldn’t allow CATS to employ Jones in the future,
because of that lack of membership. The General Counsel’s
reliance in that regard is on a statement (whether as stated
at the hearing or in the affidavit) that Sloan had said he
would not or could not agree to allow the Employer to keep
all of its mechanics. But that related to the position the
Union was taking on how the exclusive hiring hall applied
to mechanics generally and does not carry the day for the
General Counsel that the Union was out to bar Jones as such
from the job for lack of union membership.
The question of whether Jones was named as a full-time
employee momentarily aside, there was immediate partial
971LONGSHOREMEN ILA LOCAL 1426 (CAROLINA ATLANTIC)
moderation of the statement as to full-time employees, as is
evidenced by the credited union agreement to the Company’s
keeping employed all of its named full-time (permanent or
steady) mechanics under the circumstances found above.
Wholly apart then from circumstances of the above contract,
and the deficient Employer observations on full-time and
part-time employees, on the facts of this case as developed
(I find) Sloan did agree that the Employer could keep all the
named full-time employees employed.
In the end I have relatedly concluded that Jones at this
time more likely was a full-time employee of CATS than
not. However, there isn’t convincing evidence of record that
Shinn or Gautier had told Sloan in this meeting that Jones
was a full-time employee. Rather, on weight of credited evi-
dence, I find that the discussion of Jones was likely broken
off in this meeting, with the Union’s above comments made
that Employer could forget union membership being afforded
Jones.
The Union raises vexing question in brief, if not Jones,
who was the second part-time (or second temporary) em-
ployee referenced of record from time to time. I further note
a Gautier statement of putting Shutz directly on CATS’ pay-
roll, who is identified otherwise as a full-time employee. If
I have any lingering suspicions therefrom that it wasn’t an
Olsten temporary employee Smith after all who was initially
discussed in this meeting as a third full-time employee (be-
sides Whitman and Dobson), and that Shutz wasn’t a full-
time employee of CATS at the time but rather also a part-
time, or even (in light of being put directly on payroll) a
temporary employee along with Smith with whom Shutz had
been (essentially) hired, leaving Jones more exposed as the
likely third full-time employee actually named in this meet-
ing, and that Sloan has more credibly (albeit generally) re-
corded in prior affidavit, that is simply not what any of the
parties’ witnesses have testified was the Employer’s stated
report in the meeting as to Jones, and the others. I decline
to speculate.
In contrast the record does reflect that the Company did
request the Union to accept all its full-time employees. The
Union did accept the Company’s identification of its full-
time employees and, after discussion, the Union accepted the
Company’s named full-time employees, including those that
the Company later presented in correcting errors it purport-
edly made on who was, and was not, a full-time employee.
CATS also did keep in its employee all those above whom
the Company named as full time, and the General Counsel’s
offered evidence just doesn’t prove otherwise as to Jones.
Additionally, the fact is that the Employer at the time had
an alternative off port place under active consideration, but
which fell through for economic reasons, leaving the Em-
ployer then in dire economic straits even otherwise, all of
which appears to more support conclusion that on reflection
on such matters, the Employer might have been itself unwill-
ing to expose itself to further potential economic harm by a
continued employ of Jones who would not only likely not be
a member of the Union, but potentially also be in daily con-
tact with others who were members of the Union and with
some of whom the Employer now knew Jones had had prior
difficulties. However, the fact is that Employer kept Jones
working and, more significantly, any indicated fear of eco-
nomic effect, real or imagined, was not on this record shown
reasonably broached as intended by any union act. The Gen-
eral Counsel’s further urged argument, that the Employer
would have been similarly affected by certain purported im-
proper union conduct that was enjoined in earlier labor dis-
pute, though different in nature, is also not shown connected
to any current union-requested job action against Jones.
The heart of the General Counsel’s case then remains Aus-
tin & Wolfe. In that regard the Board appears to have held
since Austin & Wolfe that an employer may agree with a
union regularly supplying casual or temporary employees to
perform longshore work and to also supply mechanics to the
employer on a steady or casual basis and, consonant there-
with, the employer may effect an adverse job action, e.g.,
change a steady employee to a casual employee (with the
employee to effectively return to the hall for nondiscrim-
inatory referral), so long as not changing the status of an em-
ployee for some discriminatory or other unlawful purpose.
Cf. Seatrain Terminals of California, 205 NLRB 814 (1973).
But in that regard, if a union regularly supplying casual
or temporary employees on a nondiscriminatory basis may
negotiate with an employer for the union to thereafter
nondiscriminatorily provide permanent, full-time (or steady)
employees, who will not have to be referred daily, Seatrain,
supra, it would seem to follow as within such collective-bar-
gaining accommodation, that the Union may negotiate other-
wise where the employer’s need is more suitable to normal
casual or temporary referral, e.g., for employees who are
only needed to work part of the time, or perform unit work
that the Employer has had performed previously by a tem-
porary, by whomever employed.
The Ninth Circuit has observed that an essential element
to limit the Union’s discretion in bargaining with respect to
seniority rights of unit employees is a union’s ‘‘intent to hos-
tilely discriminate’’ against a unit employee, Longshoremen
v. Kung, 50 LC ¶ 19,905 (1964). (Evidence of that hostility
against Jones is not present.) The Board has observed other-
wise, ‘‘ [A]ny change in the priority system necessarily is
going to affect the priority of some employees who use the
exclusive referral system.’’ National Electrical Contractors
Assn., 190 NLRB 197 (1971). (In that regard, e.g., in the
Union’s agreement to the Employer’s employment of steady
employees, the Union’s hiring hall labor force of casuals and
temporaries may be viewed to be adversely impacted.) On
the wide range of reasonableness for the statutory bargaining
agent, cf. Ford Motor Co. v. Hoffman, 345 U.S. 330, 337–
338 (1953).
Thus, having negotiated a contract for exclusive referral of
all (steady, casual, or temporary) mechanics to fill the Em-
ployer’s container mechanic needs in the future, I conclude
and find, for all the reasons stated above, that although the
Union was contractually privileged to refer all permanent or
full-time employees in the future to the Employer through
the Union’s exclusive hiring hall referral system, the Union
was not contractually privileged to require the Employer to
release any full-time mechanics whom the Employer had em-
ployed prior to the time the parties had negotiated the con-
tract providing for the Employer’s exclusive use of the
Union’s hiring hall service. The Employer could alter the job
state of a full-time employee and effectively return such an
employee to casual or temporary status for hiring hall pur-
poses, providing the Employer did not do so unlawfully for
the Union or other protected concerted activity purpose, or
at the request of the Union for any such purpose.
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union was contractually, and thus lawfully, privileged
to require the Employer to fill its future part-time or tem-
porary employee needs thereafter in accordance with the use
of the negotiated exclusive hiring hall referral system that
was then established for referral of all casual or temporary
employees that I conclude and find reasonably encompassed
CATS’ future needs in unit work theretofore performed by
part-time employees and Olsten’s temporary employees. The
conclusion would appear only the more warranted here,
where the contractual parties have indiscriminately referred
to a temporary (Olsten) employee as a part-time employee as
they have done here.
It thus appears to make a difference not only whether
Jones at the time of the negotiated contract was a full- or
part-time (or temporary) employee. It makes a difference as
to both what the Union actually knew or had reason to know
at the time about Jones’ actual employment status and, in
any event, what the Union actually did in light of what it
then reasonably knew.
In the end I have found that Jones probably was a full-
time CATS’ employee, but on this record he is not effec-
tively shown as so identified to the Union in the meeting of
May 15, and rather could be reasonably viewed by the Union
at that time as part time (or still temporary). But even if I
am in error on the basic premise above and existing employ-
ees who have worked part time, even as temporary employ-
ees, must also be retained as such, under some arrangement
of the Employer’s direct call, it was incumbent on the Gen-
eral Counsel to show that the Union had caused the Em-
ployer to take job action for some discriminatory reason,
which the evidence of record has failed to establish beyond
the fact that the Union denied membership to Jones that is
ineffective by itself to establish that or other unlawful pur-
poses. The fact is on this record that the Union accepted the
Employer’s retention of every full-time employee named and,
on this record though Jones is found to be an actual full-time
employee of CATS at this time, he was not retained by the
Employer in his old job.
In summary, Jones had the protection of the Act that the
Employer would not terminate him, nor discriminate against
him, because Jones was not a member of the Union (but that
is not the issue in this complaint). Jones also had the protec-
tion of the Act that the Union would not itself cause, or at-
tempt to cause, the discharge of Jones (whether Jones was
a full-time, part-time, casual, or temporary employee), if the
purpose was because Jones was not a member of the Union,
especially in light of the statutorily explicit restricted dis-
parate denial of union membership that is apparent here; nor
do so otherwise, because Jones had engaged in union, or
other protected concerted activity, or because he had pre-
viously elected to refrain from doing so (of which there is
also no evidence). But Jones did not have protection of the
Act if being solely denied a consideration for acceptance into
union membership because of his earlier social conduct vis-
a-vis other union members that did not involve union or
other protected concerted activity.
Because the Employer’s action thereunder may be lawful
or unlawful under the certain given circumstances, the Em-
ployer’s conduct had to be shown as engaged in for an un-
lawful purpose for a violation of the Act to be found. (In
Austin & Wolfe it was found that the altered state of employ-
ees who were union members had not violated Section
8(a)(3), but it was shown that the employer had taken the ac-
tion it did for an unlawful anticoncerted activity purpose,
namely, because certain employees had pursued a claim
under a contract that the employer viewed (with union-indi-
cated approval), to be without merit.) It would appear to fol-
low, that where a union action is alleged to be violative of
Section 8(b)(2) in attendant circumstances, as here, it must
also be shown the Union had caused, or attempted to cause,
an unlawful Employer action, with the Union free to show
the contrary. Here, basically, the Union was denying mem-
bership to Jones, and seeking to have part-time and tem-
porary jobs filled by casual and temporary referrals, gen-
erally, but there is no convincing evidence that the Union
sought the Employer’s job action against Jones that followed
because Jones was not a member of the Union, as is alone
alleged in the complaint.
To prevail, it seems to me, that the General Counsel must
have the Austin & Wolfe principle extend broadly to preclude
the exclusive referral of casual and temporary employees to
fill the Employer’s ongoing part-time and/or temporary em-
ployment needs, so that the Union effectively could not stand
on any claim of the hiring hall’s lawful restriction of the Em-
ployer’s initially requested continuance of all its maintenance
mechanics, including Olsten’s temporary performing unit
work, and with specific evidence of motivation then also un-
necessary on the Great Dane principle. In light of the
Board’s subsequent holding in Seatrain, supra, and consider-
ations of the unit employees’ claim on the unit work vis-a-
vis that being performed by the employees of another em-
ployer, I do not think Austin & Wolfe now extends so far.
In the end, it is the responsibility of the General Counsel
to persuade that CATS had identified Jones as a permanent
full-time employee (which the offered evidence doesn’t), and
that Respondent Union caused, or attempted to cause, CATS
not to continue Jones in its employ, because of his lack of
union membership and/or because he was not referred out to
the job under the hiring hall newly established after his em-
ployment, but which is not shown effected by any unlawful
union action. General Counsel’s 611(c) witness Gautier
framed the Company’s request at the time as essentially
being that the Union afford all the Employer’s mechanics
protection by acceptance of them into the Union, and the
central thrust of both Jones’ and Gautier’s evidence is un-
questionably that Union had only said it would deny Jones
acceptance into Respondent Union’s membership that was
being afforded others and, on inquiry, then gave the reason
why.
Finally, although it appears more plausible that the Union
was later informed that Jones would have other assignments
that involved traveling, conflicts bearing on that circumstance
need not be resolved because later circumstances that week
would not affect the outcome of the issues raised by the
complaint. Nor do they bear on motive. What is significant
is that the Union accepted the Employer’s continued use of
Jones, and there is no evidence that the Union prevented
Jones’ use of the Union’s hiring hall. Indeed, on the basis
of the (sole) W-2 tax statement of record, CATS appears as
established as the Employer of Jones in the entire material
year, any indication of Jones’ renewed Olsten’s temporary
employment service to the contrary in Gautier’s and Jones’
accounts. It would thus appear more likely Jones had contin-
ued as an actual, direct employee of CATS, albeit (at least)
973LONGSHOREMEN ILA LOCAL 1426 (CAROLINA ATLANTIC)
when working at Wilmington, working mostly on nonunit
jobs, but in Savannah on unit work, and then at and for some
period of time working but 2–3 days per week at which point
Jones had filed charges against the Employer in July, which
were later adjusted by settlement in October.
For all of the above reasons, I remain unconvinced that the
General Counsel has met his burden of showing that the Re-
spondent Union caused, or attempted to cause, the Employer
to discriminate against Jones by terminating him on May 16,
because of Jones’ lack of union membership in violation of
Section 8(b)(1)(A) and (2) and, accordingly, it will be rec-
ommended that the instant complaint be dismissed in its en-
tirety.
CONCLUSION OF LAW
The Union has not engaged in the unfair labor practices
affecting commerce within the meaning of Section 8(b)(1)(A)
and (2) of the Act as alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]