Longshoremen Local 1575 (Navieras, NPR)

National Labor Relations Board - Board Decisions

Nov 30, 2000

332 N.L.R.B. 1336 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1336
International Longshoreman’s Association, Local 1575,
AFL–CIO (Navieras, NPR, Inc.) and William De
Jesus Ferrer. Case 24–CB–1892
November 30, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On February 3, 1999, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Re-
spondent 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 decided to affirm
the judge’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Order.
In September 1997 the Union and the Employer nego-
tiated a new collective-bargaining agreement to succeed
the parties’ previous contract. The Union thereafter held
a meeting of its membership to obtain ratification of the
new contract. Dissatisfaction with a new contractual
provision was expressed by approximately 80 percent of
the attending membership standing up from their seats in
protest. When that occurred, the union president an-
nounced that all those in favor of ratifying the new con-
tract should stand up. He then announced that the con-
tract had been ratified on the basis of those members who
had, in fact, been standing in protest. The Union and the
Employer subsequently executed the collective-
bargaining agreement.
The judge found that the Union breached its duty of
fair representation, and thereby violated Section
8(b)(1)(A) of the Act, by using the members’ expression
of disapproval as a basis for declaring that its members
had ratified the new collective-bargaining agreement.
We cannot agree with the judge’s finding.
It is, of course, well established that an exclusive bar-
gaining agent has the duty of fairly representing all unit
employees. Vaca v. Sipes, 386 U.S. 171, 177 (1967). It
is equally well settled, however, that the duty of fair rep-
resentation is confined to matters of employment and its
terms and conditions. As the Board stated in its leading
duty-of-fair-representation decision, “Section 7 . . . gives
employees the right to be free from unfair or irrelevant or
invidious treatment by their exclusive bargaining agent
in matters affecting their employment.” Miranda Fuel
Co., 140 NLRB 181, 185 (1962), enf. denied 326 F.2d
172 (2d Cir. 1963). (Emphasis added.)
Procedures relating to the adoption, ratification, or accep-
tance of collective-bargaining agreements have long been
recognized as not falling within the scope of Section 8(d)’s
“wages, hours, and other terms and conditions of employ-
ment,” but as “matter[s] . . . exclusively within the internal
domain of the Union.” Houchens Market of Elizabethtown,
Inc. v. NLRB, 375 F.2d 208, 212 (6th Cir. 1967). Accord,
Movers & Warehousemen’s Assn. v. NLRB, 550 F.2d 962,
965 (4th Cir. 1977). Employee ratification is thus a permis-
sive subject of bargaining, and an employer may not insist
that the collective-bargaining agreement be ratified as a
condition of signing the agreement. See, e.g., Seneca Envi-
ronmental Products, 243 NLRB 624, 632 (1979), enfd. 646
F.2d 1170 (6th Cir. 1981).
A union is not obligated to obtain ratification of any col-
lective-bargaining agreement that it negotiates on behalf of
employees it represents. North Country Motors, 146 NLRB
671, 674 (1964). Rather, as the designated representative,
the union is free to negotiate and make binding agreements,
with or without the formal consent or ratification of the unit
employees. Employee ratification is a prerequisite for con-
tract acceptance only when both parties agree that it is a
condition precedent to a binding contract. Beatrice/Hunt-
Wesson, 302 NLRB 224 fn. 1 (1991); Williamhouse-
Regency of Delaware, 297 NLRB 199 fn. 5 (1989), enfd.
915 F.2d 631 (11th Cir. 1990). If a union does choose to
seek employee ratification, it is for the union “to construe
and apply its internal regulations relating to what would be
sufficient to amount to ratification.” M & M Oldsmobile,
156 NLRB 903, 905 (1966), enfd. 377 F.2d 712 (2d Cir.
1967); Childers Products Co., 276 NLRB 709, 711 (1985),
review denied mem. 791 F.2d 915 (3d Cir. 1986).
Applying these settled principles to this proceeding, we
must dismiss the complaint allegation that the Union’s con-
duct of the ratification vote violated Section 8(b)(1)(A) of
the Act. There is no contention here that the Union and the
Employer agreed that employee ratification was a condition
precedent to forming the collective-bargaining agreement.
Therefore, a vote of the membership was not necessary to
the formation of a collective-bargaining agreement between
the Employer and the Union. Although the manner in
which the Union conducted the ratification vote does not
garner our sympathy, nonetheless as a matter of law that
conduct, being purely an internal union affair, does not
come within the duty of fair representation. Rather, the
decision as to whether ratification occurred was within the
Union’s exclusive domain and control, and therefore the
ratification process was purely advisory. See NLRB v.
Wooster Division of Borg-Warner Corp., 356 U.S. 342,
349-350 (1958) (“ballot” clause relating to the procedure to
be followed by employees before the union could call a
strike or refuse a final offer “settles no term or condition of
employment” and “merely calls for an advisory vote of the
employees”). Accordingly, there was no violation of the
332 NLRB No. 139
LONGSHOREMEN ILA LOCAL 1575 (NAVIERAS, NPR) 1337
duty of fair representation in the Union’s method of count-
ing votes for and against ratification.1
We shall therefore dismiss the complaint2 in its en-
tirety.3
ORDER
The complaint is dismissed.

Ismael Rodriguez-Izquierdo, Esq., for the General Counsel.
Nicolas Delgado, Esq., San Juan, Puerto Rico, for the Respondent.

DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This
case was tried in San Juan, Puerto Rico, on November 18,
1998. The charge was filed September 25, 1997,1 and the com-
plaint was issued May 29, 1998.
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 Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
International Longshoreman’s Association, Local 1575, ad-
mits, and I find, that it is a labor organization within the mean-
ing of Section 2(5) of the Act. I further find, that at all times

1 The judge’s reliance on Teamsters Local 310 v. NLRB, 587 F.2d
1176 (D.C. Cir. 1978), reversing and remanding 226 NLRB 772
(1976), is misplaced. In that case, the court held that by denying mem-
bers of one labor organization the same opportunity accorded other unit
employees to vote on contract ratification, a joint representative dis-
criminated against employees “in matters affecting their employment”
and violated its duty of fair representation. 587 F.2d at 1183–1184.
There is, however, an important distinction between Teamsters Local
310 and the instant case. In Teamsters Local 310, the court stressed
that “[a]ll the evidence in the record,” including the union constitutions,
indicated that membership ratification was necessary before the joint
representative could properly communicate its acceptance of the con-
tract to the employer. Id. By contrast, in the instant case, there is noth-
ing in the record contradicting the Union’s position that membership
ratification was not required by its constitution and bylaws.
2 No exceptions were filed to the judge’s dismissal of the other com-
plaint allegations.
3 Alleged irregularity regarding internal union ratification may be appro-
priately resolved in another forum, however. A private right of action is
available under the Labor-Management Reporting and Disclosure Act of
1959, 29 U.S.C. Sec. 401 et seq. (LMRDA). See Motor Coach Employees
v. Lockridge, 403 U.S. 274, 296 (1971) (purely internal union affairs are a
subject that the NLRA leaves principally to other processes of law); Ameri-
can Postal Workers’ Union, Local 6885 v. American Postal Workers, AFL–
CIO, 665 F.2d 1096, 1101–1105 (D.C. Cir. 1981) (national union’s refusal
to submit collective-bargaining agreement to local union for ratification,
while giving other union members the right to ratify their contracts, was
inconsistent with the equal rights provision of the LMRDA); Bauman v.
Presser, 117 LRRM 2393 (D.D.C. 1984) (court granted injunctive relief
sought by union members to enjoin the counting of ballots in contract ratifi-
cation because balloting procedures employed by union violated the
LMRDA), appeal dismissed 119 LRRM 2247 (D.C. Cir. 1985), rehearing
and suggestion for rehearing en banc denied (D.C. Cir. 1985).
1 All dates are in 1997 unless otherwise indicated.
material to this case it has been the exclusive collective-
bargaining representative of employees, including stevedores of
Navieras, NPR, Inc., which provides marine transportation and
related services between Puerto Rico and the continental United
States. Navieras is an employer engaged in commerce within
the meaning of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
For many years the Union has had collective-bargaining
agreements with Navieras and Sea Land, Inc. regarding the
employment of stevedores in Puerto Rico. Prior to 1962 both
these companies unloaded their vessels at the southern port of
Ponce, as well as at San Juan. In about 1962 the unloading of
ships at Ponce ceased. In negotiating its collective-bargaining
agreements since that time, the Union has historically sought to
guarantee some work for its members from Ponce.
Stevedores are called to work in groups of 19 employees
called gangs. Under the collective-bargaining agreement that
was in effect between 1990 and 1994, there were four gangs
comprised of union members from San Juan and one gang from
Ponce (referred to in the record as the “fixed” Ponce gang). In
negotiating a new collective-bargaining agreement with Navi-
eras in 1997, the Union’s board of directors proposed the crea-
tion of an additional gang from Ponce (the Ponce alternate
gang).2 Among the members of this new gang are the son and
two grandsons of Celestino Perez, the highest ranking union
official on the old Ponce gang. Under the terms of the new
collective-bargaining agreement, this new Ponce gang is guar-
anteed 1 day of work each week. In alternating weeks this gang
would work 1 day for Navieras and the next week 1 day for Sea
Land. Under the terms of the prior collective-bargaining
agreement, the work to be performed by the new or “alternate”
Ponce gang would have been done by San Juan employees,
including the charging party.
On September 25, 1997, the Union board of directors held an
“assembly,” or meeting, at which changes in the new collec-
tive-bargaining agreement were read to union members for the
purpose of obtaining their ratification of the new contract.
There were 500–600 of the Union’s 1000–1200 members
present. When the provision creating the additional Ponce gang
and guaranteeing it a shift per week was read, William De Jesus
Ferrer, a San Juan member, attempted to make a motion to
submit this provision to a vote of the union’s membership.
Nicholas Delgado, the union’s attorney, told Ferrer to sit
down and that his motion would be considered when the board
had finished reading all the new provisions of the contract.
When the reading of these changes concluded, the Union’s
board of directors refused to recognize Ferrer. Approximately
80 percent of those members in attendance, most of whom were
from San Juan, stood up and started yelling to protest the
board’s failure to entertain Ferrer’s motion.
While these members were still standing to protest, Union
President Guillermo Ortiz asked that all those in favor of ratify-
ing the collective-bargaining agreement stand up. He then
announced that the contract had been ratified on the basis of
those members standing in protest of the board’s decision not to
2 This provision appears in GC Exh. 3(b) at p. 4, par. 71.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1338
entertain Ferrer’s motion. Ortiz then left the meeting.3 On
October 7 the Union and Navieras executed the collective-
bargaining agreement presented at the September 25 assembly.
Analysis
The General Counsel alleges that the Union violated Section
8(b)(1)(A) in: (1) entering into the collective-bargaining agree-
ment without allowing its members an opportunity to discuss
and/or vote on the provision establishing the alternate Ponce
gang and guaranteeing it work; (2) dishonestly treating the
expression of opposition to this provision as an expression of
support for ratification of the contract; and (3) fraudulently
declaring that the collective-bargaining agreement was ratified
on the basis of demonstrations of opposition to the creation of
the new Ponce gang. I find that the Union did not violate the
Act in preventing discussion and consideration of the Ponce
alternate gang, but that it did violate the Act in treating demon-
strations in opposition to the provision as support for ratifica-
tion and declaring the collective-bargaining agreement ratified
on that basis.
It is well settled that a union which enjoys the status of ex-
clusive collective-bargaining representative has an obligation to
represent employees fairly, in good faith, and without discrimi-
nation against any of them on the basis of arbitrary, irrelevant,
or invidious distinctions. Vaca v. Sipes, 386 U.S. 171 (1967).
However, so long as the Union exercises its discretion in good
faith and with honesty of purpose, a collective-bargaining rep-
resentative is allowed a wide range of reasonableness in the
performance of its duties. Ford Motor Co. v. Huffman, 345
U.S. 330 (1953); Air Line Pilots v. O’Neill, 499 U.S. 65 (1991).
A union does not breach its duty of fair representation sim-
ply because it negotiates contract provisions beneficial to one
group of represented employees at the expense of another group
of represented employees. This principle is best exemplified by
the recent Board decision in Firemen & Oilers Local 320
(Philip Morris) 323 NLRB 89 (1997). In the Fireman & Oilers
case the Board held that the Union did not violate Section
8(b)(1)(A) when it negotiated a seniority provision that bene-
fited six oilers who were production employees prior to becom-

3 To the extent that there is conflicting evidence regarding what tran-
spired at the union assembly of September 25, I credit the testimony of
William De Jesus Ferrer over that of Juan Velez, vice president of the
Union, and R. Exh. 1, the minutes of the meeting. In this regard, I note
that Respondent stipulated that three union members; Rafael Torres,
Angel Lopez, and Jose Padilla, would give the exact same testimony
regarding the assembly as De Jesus Ferrer. Thus, their testimony cor-
roborates that of Ferrer. Angel Lopez was a member of the Union’s
board of directors on September 25. Jose Padilla was also a member of
the board and formerly was the treasurer of the Union.
The General Counsel, on the other hand, stipulated to the admission of
R. Exh. 1, the minutes of the September 25 meeting. These minutes are
signed by Guillermo Ortiz, the president of the Union, and Carlos Ortiz,
the secretary general of the Union. There is no evidence regarding the
circumstances under which they were taken or whether they were ever
approved. On balance, I find the testimony of De Jesus Ferrer, as cor-
roborated, to be more credible than that of Velez and R. Exh. 1 as to
whether the collective-bargaining agreement was ratified by the member-
ship of the Union. I conclude that the collective-bargaining agreement
was not ratified.
ing oilers, to the detriment of four other oilers, who had never
been production employees.
On the other hand, if a union favors one group of represented
employees for reasons that restrain or coerce employees in the
exercise of their Section 7 rights, or reasons that are arbitrary or
demonstrate bad faith, its negotiations may violate Section
8(b)(1)(A). One example is where the Union favors one group
of represented employees because they have been members of
the Union for a longer period of time, Teamsters Local 42
(Daly, Inc.), 281 NLRB 974 (1986), enfd. 825 F. 2d 608 (1st
Cir. 1987); Teamsters Local 435 (Super Valu, Inc.), 317 NLRB
617, fn. 3 (1995). Another is one is when the Union favors one
group because they were members of one local union rather
than another, Reading Anthracite Co., 326 NLRB 795 (1998).
The charging party intimates that the Union demonstrated
bad faith in establishing the new Ponce gang on the basis of
nepotism. However, the General Counsel did not allege, argue,
or prove that nepotism was a motivating factor for the creation
of this gang. Union Vice President Juan Velez testified that the
board of directors was motivated simply by a desire to provide
more work for the Ponce members, who according to Velez,
have less employment opportunities than those in San Juan. I
credit the testimony of Velez in this regard.
On the other hand, the General Counsel has established that
the Union’s board of directors used expressions of disapproval
regarding the creation of the alternate Ponce gang to declare
that its members had ratified the new collective-bargaining
agreement in its entirety. Once the Union decided to seek rati-
fication of the collective-bargaining agreement, it was required
to do so in fair and honest manner, regardless of whether it was
required to obtain such approval, Teamsters Local 310 v.
NLRB, 587 F. 2d 1176 (D.C. Cir. 1978). Thus, in seizing on
the demonstrated opposition to the alternate Ponce gang as a
basis for ratification, the Union violated Section 8(b)(1)(A).
CONCLUSIONS OF LAW
1. By using expressions of disapproval to the new clause
creating the alternate Ponce gang as a basis for declaring that its
members ratified the new collective-bargaining agreement, the
Union violated Section 8(b)(1)(A) of the Act.
2. The Union did not violate the Act in curtailing discussion
of the merits of the contract provisions relating to the new al-
ternate Ponce gang.
3. The Union did not violate the Act in not allowing its
members to vote on the provisions relating to the new alternate
Ponce gang separately from a vote on the entire collective-
bargaining agreement.
REMEDY
Having found that the Union has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and take certain affirmative action designed to effectuate the
policies of the Act.
The Union must in a fair and honest manner resubmit its col-
lective-bargaining agreement to its members for ratification.
The Union need not submit individual provisions of the agree-
ment to its members for ratification, and need not allow debate
on any of these provisions. The disposition of the General
LONGSHOREMEN ILA LOCAL 1575 (NAVIERAS, NPR) 1339
Counsel’s prayer that William De Jesus Ferrer and other simi-
larly situated employees be made whole for any loss of earn-
ings caused by the Union as a result of the unlawful ratification
of the collective-bargaining agreement is deferred in order to
determine whether the Union’s members vote whether or not to
ratify the collective-bargaining agreement. If the contract is
ratified then it may be apparent that these employees have suf-
fered no loss as a result of the Union’s conduct on September
25, 1997.
[Recommended Order omitted from publication.]