The Gulfport Stevedoring Association- International Longshoremen's Association Container Royalty Pla

National Labor Relations Board - Administrative Judge Opinions

Feb 27, 2014

15-CA-096939 (N.L.R.B. Feb. 27, 2014)

JD(ATL)–11–14
Gulfport, MS
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA OFFICE
THE GULFPORT STEVEDORING
ASSOCIATION–INTERNATIONAL
LONGSHOREMEN’S ASSOCIATION
CONTAINER ROYALTY PLAN
and CASES 15–CA–096939
TOMMY EVANS, an Individual
INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION LOCAL 1303
and 15–CB–096934
TOMMY EVANS, an Individual
Caitlin E. Bergo, Esq., Matthew J. Dougherty, Esq., and
Kevin McClue, Esq., for the General Counsel.
Stephen W. Dummer, Esq., and Matthew M. McCluer, Esq.,
for the Respondent Container Royalty Plan.
Kevin Mason-Smith, Esq., and Louis L. Robein, Esq.,
for the Respondent Union
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I heard this case in
New Orleans, Louisiana on September 9 through 12, 2013. Tommy Evans, an Individual,
filed the charge in Case 15–CA–096939 on January 24, 2013 and amended it on April 24,
2013. Evans filed the charge in Case 15–CB–096934 on January 24, 2013 and amended it on
March 25, 2013 and April 8, 2013. On August 22, 2013, the General Counsel issued a second
amended consolidated complaint alleging that Respondent, Gulfport Stevedoring Association-
International Longshoremen’s Association Container Royalty Plan (Respondent Employer or
JD(ATL)–11–14
2
Plan) violated Section 8(a)(1) and (3) of the Act by discharging Evans December 15, 2012 at
the request of Respondent International Longshoremen’s Association Local 1303 (Respondent
Union). The second amended consolidated complaint further alleged that the Respondent
Union violated Section 8(b)(2) of the Act by attempting to cause and causing the discharge of
Evans.15
On September 3, 2013, the Respondent Plan and the Respondent Union filed their
answers to the complaint. In addition to denying the unfair labor practice allegations of the
complaint, both Respondents denied that the Respondent Plan was an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act. The Respondent Plan 10
asserted a number of affirmative defenses, including that Evans was discharged for cause and
would have been discharged even absent any protected activity.
In response to the complaints that issued in this case, the Respondent Plan also filed
directly with the Board a motion to dismiss for lack of jurisdiction. By Order dated September 15
9, 2013, the Board denied the Motion to Dismiss. On September 5, 2013, shortly before the
hearing was scheduled to open, the Respondent Plan filed a Motion to Bifurcate Hearing,
seeking to have the jurisdictional issue decided in a preliminary hearing before a hearing on
the substantive allegations in the complaint. I denied this motion when the hearing opened on
September 9, 2013.20
On the entire record2, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Respondent Plan and the
Respondent Union, I make the following
25
FINDINGS OF FACT
I. JURISDICTION
The Respondent Container Royalty Plan (Plan) is a jointly administered tax-exempt30
501(c) (9) trust fund established in 1974 through a collective bargaining agreement between
the Respondent Union and the Gulfport Stevedoring Association (GSA). GSA is a multi-
employer association consisting of two stevedoring companies, Stevedoring Services of
America, Inc. (SSA) and Ports America, Inc. (Ports) that hire longshoremen to load and
unload cargo at the Port of Gulfport, Mississippi. The Plan was one of several such plans 35
created at ports throughout the United States in the 1970s to deal with the loss of work
resulting from the shift to containerization of cargo.3 Under the terms of the collective-
bargaining agreement between Respondent Union and the employers, including GSA, the

1 The second amended consolidated complaint supersedes the original consolidated complaint that
issued on April 26, 2013 and a first amended consolidated complaint that issued on May 30, 2013.
2 On November 6, 2013, the parties filed a joint motion to correct the record to show that General
Counsel’s Exhibit 15 was admitted into evidence and that Respondent Plan Exhibits 18(a) and (19)
were received at page 616 of the transcript. The motion is hereby granted and the record will be
corrected accordingly.
3 See NLRB v. International Longshoremen’s Ass’n., AFL-CIO, 447 U.S. 490, 494 (1980) in which
the Supreme Court found that such plans were lawful under the Act.
JD(ATL)–11–14
3
Plan collects royalty payments from signatory employers to distribute annually as
supplemental cash benefits to longshoremen who work 700 or more hours at the port during
the plan year. Shipping companies that utilize the services of the employers’ longshoremen,
such as Dole Food Company and Dole Fresh Fruit Company (Dole), Chiquita Brands
International Ltd. (Chiquita) and Crowley Maritime (Crowley), make royalty payments to the 5
Plan based on the tonnage of containers. The evidence establishes that, for the 2011-2012 plan
year, the last one before the events at issue here, the Plan collected $1,430,096.92 from the
employers.4 Of this amount, $761,709.64 was distributed to the 131 longshoremen who met
the 700 hour qualification criteria.5 The Plan uses some of the money collected to fund its
administrative expenses, including the compensation for its administrator, Victor Walsh, who10
is a contractor not an employee, and the wages and benefits of its only two employees, the
container inspection-dispatchers. The remainder of the money is distributed to other trust
funds established under the collective-bargaining agreement, such as the welfare fund,
vacation fund and pension.
15
The Respondent Plan is governed by a four-member board of trustees. Each employer
member of the GSA appoints one trustee and the Respondent Union appoints two trustees. In
2012, Greg Schruff was the trustee appointed by SSA, Kendall Lamb was the trustee
appointed by Ports America and the Respondent Union’s president and vice president, Donald
Evans and Darius Johnson, respectively, were the union trustees. Donald Evans is the 20
Charging Party’s brother and has been president of the Respondent Union and a trustee of the
Respondent Plan since 1989. Under law and the trust documents, the trustees are required to
act as fiduciaries for the benefit of the plan and its participants rather than in the interest of the
parties who appointed them. See, e.g., NLRB v. Amax Coal Co., 453 U.S. 322 (1981).
25
In addition to the collection and distribution of container royalty money, the
Respondent Plan is also responsible for dispatching longshoremen to work at the Port of
Gulfport. The two container inspector-dispatchers perform this function. They receive calls
from the signatory employers requesting labor when a ship is coming in. The container
inspector-dispatcher then records a voice message on an answering machine announcing that 30
a ship is coming in, the date and time of arrival, the gangs selected to work the ship and the
reporting time. Longshoremen seeking work at the port call a dispatch number and listen to
this voice message to find out if they will be working. The container inspector-dispatcher is
also required to be present for the shape-up in the event there are any vacancies on the gangs
selected to work. If so, the container inspector-dispatcher will fill the vacancies by seniority. 35
Any complaints about selection or non-selection can be brought by a longshoreman to a
Seniority Board, also established under the collective-bargaining agreement, which hears
these disputes. The four trustees of the Respondent Plan serve as the four members of the
Seniority Board. The Respondent Plan pays for the maintenance and operation of the
telephone answering system on which the voice messages regarding work are left and for the 40
expenses of the Seniority Board out of the royalty payments collected from employers.6 There

4 The plan year ends on September 30.
5 This is the gross amount of distribution before taxes and other withholdings.
6 Records of the Respondent Plan show that the cost of the telephone answering system is about
$360.00/month. The Respondent utilizes a local telecommunications company to provide this service.
JD(ATL)–11–14
4
is no dispute that, until sometime in 2011, the Respondent Union paid 25% of the container
inspector-dispatchers’ salary to assist the plan in carrying out the dispatch function.
The parties stipulated at the hearing that SSA, Ports, Dole, Chiquita and Crowley are
all employers engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act 5
and that the Respondent Union is a labor organization within the meaning of Section 2(5) of
the Act. As noted above, both the Respondents have denied that the Respondent Plan is an
employer engaged in commerce within the meaning of the Act.
There are no reported cases in which the Board has addressed the issue here, i.e. 10
whether a longshoremen’s container royalty plan is an employer engaged in commerce within
the meaning of the Act. The General Counsel has cited a number of cases in which the Board
has found that other types of Taft-Hartley fringe benefit funds are employers subject to the
Board’s jurisdiction. See, e.g., Roofing, Metal & Heating Associates, Inc., 304 NLRB 155,
156 (1991); Iron Workers Local 15, 278 NLRB 914 (1986); Welfare, Pension & Vacation 15
Funds Local 2, 256 NLRB 1145, n. 1 and 1156 (1981); Joint Industry Board of the Electrical
Industry & Pension Committee, 238 NLRB 1398, 1405 (1978); Garment Workers Health &
Welfare Fund, 146 NLRB 790, 791-793 (1964); Chain Service Restaurant Employees Local
11, 132 NLRB 960, 961-963 (1961). The rationale of those decisions is that the payments or
contributions made by the employers to the various funds pursuant to collective-bargaining 20
agreements with the respective union are essentially the payment for services “subcontracted”
to the fund to carry out the employers’ contractual obligations to its employees. In this
context, the receipt of such contributions would represent an indirect inflow which would
satisfy the Board’s jurisdictional standards if the employer making the contribution were itself
directly engaged in interstate commerce. Chain Service Restaurant Employees Local 11, 25
supra. I agree with the General Counsel that the analogy is appropriate to the Respondent
Plan.
There can be no question, and the parties in fact stipulated, that the stevedoring
companies and the shippers that contribute royalty payments to the fund are directly engaged 30
in interstate commerce. Although the Respondent Plan attempted to distinguish itself from the
funds involved in the cases cited above by claiming it engaged in no commercial activity,
such as the purchase of insurance policies or annuities or the provision of health care services,
it cannot escape the fact that the Respondent Plan does perform a service for the signatory
employers. The Respondent Plan admits that it collects the royalty payments that are required 35
under the collective-bargaining agreement and that it annually distributes supplemental cash
benefits to qualified employees performing work under the collective-bargaining agreement.
If the Respondent Plan did not exist, the employers would still have to provide these
supplemental payments to the employees. The Respondent Plan invests the funds collected
during the year so that the money can earn interest for the benefit of the Plan’s participants. In 40
this way, it functions much like a bank. The Respondent Plan also uses part of the money
collected to pay its administrative costs, to maintain the contractual dispatch system, and to
fund other contractual fringe benefit funds established pursuant to the collective-bargaining
agreement. I see the role of the Respondent Plan as no different than the health and welfare
and pension funds over which the Board has historically asserted jurisdiction. Because the 45
record established that the Respondent Plan, during the most recent plan year, collected
JD(ATL)–11–14
5
almost $1.5 million in royalty payments from Dole, Chiquita, Crowley and other employers
who are directly engaged in commerce, I find that the Respondent Plan is an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.7
II. ALLEGED UNFAIR LABOR PRACTICES5
The complaint alleges that the Respondent Union violated Section 8(b) (2) of the Act
by attempting to cause, and in fact causing, the Respondent Plan to discharge the Charging
Party in violation of Section 8(a)(1) and (3) of the Act because the Charging Party supported
his son, Glen Evans, in his election campaign for president of the Union, in opposition to the 10
candidacy of the incumbent president, Donald Evans. The complaint further alleges that by
acquiescing to the Respondent Union’s demands, the Respondent Plan violated Section
8(a)(1) and (3) of the Act. As with any case that turns on motivation, the Wright Line test
applies to the issue here. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). This test requires the General 15
Counsel to prove, by a preponderance of the evidence, that the employee engaged in activity
protected by the Act, that the employer (and union in this case) were aware of the employee’s
protected activity and that the employer and/or union was motivated by animus against the
protected activity in taking adverse action against the employee. If the General Counsel meets
this burden, the burden shifts to the employer and/or union to show, again by a preponderance 20
of the evidence, that the same action would have been taken against the employee even in the
absence of protected activity. Id. See also Manno Electric, 321 NLRB 278, 280 n. 12 (1996),
enfd. 127 F.3d 34 (5th Cir. 1997).
At the time of his termination, the Charging Party was one of two container inspector-25
dispatchers (“CID”) employed by the Respondent Plan. The CID position was created in
1974, shortly after the Respondent Plan was established. The Charging Party was the first
CID hired, on April 8, 1974. He previously worked as a longshoreman at the port for about 10
years. He was offered the job by his father, Wilson Evans, who was the Respondent Union’s
president and a trustee of the Respondent Plan in 1974. The Charging Party held the CID 30
position for almost 40 years before his termination. He was the only CID for the first few
years until the trustees hired Harold Oliver. Oliver was the other CID until his retirement in
2005, when he was replaced by Huey Cuevas. Cuevas was still employed as a CID at the time
of the hearing. The Charging Party, Oliver and Cuevas are all members of the Respondent
Union.8 They are not represented by the Union and are not part of the bargaining unit covered 35
by the collective-bargaining agreement. However, they do receive the health and welfare,
pension, and vacation benefits set forth in that agreement and continue to accrue seniority
while working as CIDs.

7 In asserting that the Board lacked jurisdiction, the Respondent Plan relied heavily on the fact it is
a tax-exempt trust prohibited from engaging in commercial activities, and that it employs no
employees covered by the collective-bargaining agreement. These factors are not determinative under
Board precedent cited above and have little bearing on the issue of jurisdiction.
8 The Respondent Union is somewhat of a family business with several generations of the Evans
family holding office through the years. As noted previously, the Charging Party’s brother is the
current president.
JD(ATL)–11–14
6
In the beginning, the two CIDs, including the Charging Party, only performed the
dispatch duties described above. In the early 1990s, with increasing containerization at the
port of Gulfport, the Charging Party and Oliver were assigned additional inspection duties and
were sent to New Orleans for training. The inspection duties involved checking the ships’
manifests, calculating the amount to be paid in container royalty based on what the manifests 5
showed was the volume of container cargo, and comparing that number with the amount
actually contributed by the particular employer. If there were any discrepancies, the CID
contacted the employer in an attempt to correct the discrepancy. Although forms were created
to report the results of these inspections, Charging Party testified that he seldom completed
the paperwork. In fact, he admitted that he did not do any inspection reports in 2012.10
Although the CIDs report to the Respondent Plan’s administrator, Victor Walsh, they are not
closely supervised and perform most of their work independently.
The Charging Party testified that he decided to retire in 2011 because he was
becoming resentful with what he perceived as Cuevas not doing his job. There is no dispute 15
that Cuevas was on medical leave after open heart surgery for several months in 2011 and was
not showing up to dispatch at the shape-ups. He was, however, still doing inspection reports
while working from home. The Charging Party started the paperwork to collect social security
and actually collected a couple checks before his brother, the Respondent Union’s president,
talked him out of it. There is no dispute that Donald Evans encouraged the Charging Party to 20
continue working until a new, more favorable insurance plan went into effect in 2012. The
Charging Party continued working through 2012 although the testimony of many witnesses is
that he performed less and less of the work. In fact, several witnesses, including Gloria
Pittman, the Respondent Union’s receptionist/secretary for 46 years, testified that the
Charging Party stopped coming into the Union hall after they moved to a new building in 25
April 2012.
The Respondent Union held its regular election of officers on September 22, 2012.
The elections are customarily held in September, every three years, with the newly elected
officers taking office the following January. The Charging Party’s son, Glen Evans, was the 30
Respondent Union’s vice president until he was removed from office by his uncle, the
Respondent Union’s president, in June 2011 after a falling out over divorce papers. Glen
Evans ran for president in the 2012 election against his uncle Donald. He lost the election by
18 votes out of 230 cast. The Charging Party testified at the hearing that he supported his
son’s candidacy and campaigned for him by handing out flyers and talking to pensioners and 35
other senior members of the union, asking them to vote for his son. Glen Evans also testified
at the hearing, as a witness for the General Counsel, and corroborated his father’s testimony.
The testimony of these witnesses was contradicted by an affidavit the Charging Party signed
on February 1, 2013 during the investigation of these charges. In that affidavit, the Charging
Party stated that he did not actively campaign for his son. The Charging Party provided no 40
credible explanation for this glaring inconsistency when he testified at the hearing.
The Charging Party did admit, on cross-examination, that he did not know whether his
brother, the Respondent Union’s president, or any other of the Respondent Plan’s trustees
knew he had “campaigned” for his son. According to the Charging Party, his conversations 45
with pensioners took place at their homes. He did not know whether any of them said
JD(ATL)–11–14
7
anything to Donald Evans about these visits. The Respondent Plan’s trustees all testified at the
hearing that they were unaware of any campaign activity engaged in by the Charging Party.
The General Counsel offered no evidence to contradict this testimony. Donald Evans also
testified that he was aware of at least one incident in early 2012 when the Charging Party and
his son had a verbal altercation at the union hall. The dispute was so intense that Donald 5
Evans had to intervene to break it up. Gloria Pittman, the secretary, corroborated Donald
Evans’ testimony in this regard. There was also testimony from several witnesses about an
earlier confrontation between the Charging Party and his son over the Charging Party’s failure
to dispatch longshoreman Garland Taylor. The Charging Party and Glen Evans did not
dispute that they had “disagreements” on these two occasions. Instead they tried to minimize 10
the seriousness and volume of the exchange.
In November, the trustees of the Respondent’s Plan voted to give the two CIDs,
including the Charging Party, a bonus that was equivalent to the supplemental cash payments
that eligible longshoremen receive from the Plan around the same time each year. There is no 15
dispute that this is done annually because the CIDs, who are not participants in the Plan and
not covered by the collective-bargaining agreement, are not eligible to receive a royalty
check. Around the same time, Donald Evans asked his brother if he was now going to retire,
since the new health plan was in effect. The Charging Party told Donald Evans that he had
decided to continue working until the next election in three years.20
On December 11, at Donald Evans’ request, the Respondent Plan’s trustees held a
special meeting at which Donald Evans’ recommendation to terminate the Charging Party was
discussed. Each of the four trustees testified regarding this meeting. All but Donald Evans
were unaware of the purpose of the meeting until they got there. Each trustee testified that 25
they voted to terminate the Charging Party after a discussion of his performance issues.
Although each trustee gave his own reason for being unsatisfied with the Charging Party’s
performance, they all testified that the internal union election and any role the Charging Party
may have had in it was not discussed or considered. The trustees then directed Administrator
Walsh to send a letter to the Charging Party informing him of his termination, to be effective 30
January 5, 2013.9 At the request of Donald Evans, Walsh was told to cite “performance
issues” generally as the reason for the termination rather than to detail any specific reasons for
the termination. Donald Evans testified that he made this recommendation to spare his brother
any embarrassment.
35
The Respondents called a number of witnesses, including the four trustees, to testify
regarding the Charging Party’s performance issues. In addition to the trustees, a supervisor
from each of the employer members of GSA testified regarding the difficulties each had
contacting the Charging Party to tell him a ship was needed and that workers needed to be
assigned. The Charging Party’s colleague, CID Cuevas, testified regarding the Charging 40
Party’s failure to perform dispatch duties and inspection reports which resulted in Cuevas
shouldering more than a fair share of the work. Two longshoremen in the bargaining unit
testified about complaints each had regarding the Charging Party’s dispatch performance.

9 This date was chosen to ensure that the Charging Party would be eligible to receive the new and
improved health benefits.
JD(ATL)–11–14
8
There was testimony on cross-examination from Glen Evans, the Charging Party’s son, in
which he acknowledged that his father did not always appear at shape-ups and that he had
been called upon to perform dispatch duties for his father during the time he was vice
president of the Respondent Union. In fact, Glen Evans sought his father’s job after he was
terminated by speaking to one of the employer trustees, Schruff. Glen Evans cited his 5
experience performing dispatch duties in his father’s absence as a basis for his qualification
for the CID position.
There is no dispute that the performance concerns cited by the trustees and these
witnesses had occurred for a number of years yet there is no evidence that the Charging Party 10
was ever warned, counseled, or otherwise informed that the Respondent Plan was not happy
with his performance. Nor did the Charging Party receive any specific warning before the
December 11 trustees meeting that he was about to be terminated. Donald Evans testified that,
in the past, when other trustees or the administrator, Walsh, had complained about his brother,
he advised them he would take care of it. Donald Evans testified that, shortly before the 15
December 11 meeting, fellow trustee Kendall Lamb told him that he would no longer sign any
checks for the Charging Party because of problems his employer was having communicating
with the Charging Party. Lamb corroborated Donald Evans regarding this conversation.
Walsh also corroborated Evans testimony that he asked Walsh not to take any action against
his brother when concerns were raised.20
In her brief, counsel for the General Counsel reviewed the documentary evidence and
made a strong showing that the Charging Party performed his dispatch functions far more
often than the Respondent’s witnesses claimed. However, her efforts in this regard were
undermined by the testimony of the Charging Party. As noted above, the Charging Party 25
conceded that his attitude toward the job changed in 2011 during Cuevas’ absence, around the
time he initially decide to retire. The Charging Party admitted on cross-examination that he
did not record the tape announcing work assignments 90% of the time and that he did not
prepare any container inspection reports in 2012. These are the two primary duties of a CID.
It appears from the Charging Party’s own testimony that about the only part of his job that he 30
performed was showing up at the shape-up and dispatching men, as needed. Even in this
regard, there is no dispute that his choices of whom to dispatch were sometimes questioned,
even by his own son.
As noted above, resolution of this case turns on application of the Wright Line test to 35
the facts and evidence. Two key elements of the General Counsel’s burden under that test is
proof of protected activity and knowledge of that activity by the employer (and union in this
case). The credible evidence in this case is not sufficient to meet the General Counsel’s
burden as to these two elements. As noted, the testimony of the Charging Party and his son
regarding the Charging Party’s activities during his son’s election campaign are contradicted 40
by his prior sworn testimony in the February 2013 affidavit. The affidavit was given closer in
time to the events and at a time when no complaint had yet issued. The Charging Party’s
statement is thus more reliable than his testimony at the hearing when he had a vital interest in
exaggerating his campaign activity in order to get a remedy for his termination. The absence
of any objective evidence to support his testimony, and the lack of corroborating testimony 45
from a disinterested witness, convinces me that the testimony is unreliable.
JD(ATL)–11–14
9
As to the element of knowledge, Donald Evans, who made the recommendation to
terminate the Charging Party, credibly testified that he had no knowledge that the Charging
Party campaigned or otherwise supported his son’s candidacy for president. The General
Counsel, in the brief, acknowledges this flaw in the case by arguing that it should be inferred 5
that Donald Evans knew of the Charging Party’s support for Glen Evan’s in the election
because Glen Evans was the Charging Party’s son. This argument does not hold up for two
reasons. The mere fact that the Charging Party “supported” his son would not be enough to
meet the first element unless there was evidence that the Charging Party’s support was
expressed in some tangible fashion that would be of concern to Donald Evans. Without such 10
evidence, the Charging Party’s “support” amounted to one vote against him. Second, the
assumption that the Charging Party supported his son’s election as president is
contraindicated by other evidence, known to Donald Evans, that the Charging Party and his
son did not always agree on union issues. I credit the testimony of the Respondent’s witnesses
over that of the Charging Party and Glen Evans as to the two altercations between them, one 15
of which had to do with how the Charging Party was dispatching the men. Glen Evans even
acknowledged in his testimony that there was a period of time in 2011-2012 when he and his
father “did not talk.”
The record is also devoid of any direct evidence of animus toward the Charging Party 20
over the exercise of any protected activity. The General Counsel essentially acknowledges
this weakness by emphasizing the circumstantial evidence that might suggest the existence of
the requisite animus. The circumstantial evidence cited, such as timing (within three months
of the union election); the claim of pretext; the fact that Donald Evans offered the Charging
Party’s position to Chris Johnson, the Respondent Union’s newly-elected secretary-treasurer, 25
before the trustees’ meeting at which the Charging Party was terminated; and the selection of
this individual, with no dispatch experience, over the Charging Party’s son, Glen, who had
substantial experience performing the dispatch duties in his father’s absence, is not sufficient
to establish a prima facie case of animus or unlawful motivation in the absence of evidence of
protected activity and knowledge.30
Based on the above, having considered all the evidence, I find that the General
Counsel has not established, by a preponderance of the evidence, that the Charging Party was
terminated by the Respondent Plan because he engaged in any protected activity under the
Act, and in particular because he supported or campaigned for his son in the September 2012 35
intra-union election. See Ronin Shipbuilding, Inc., 330 NLRB 464 (2000). Because I have
found no unlawful motivation in the decision to discharge the Charging Party, it is
unnecessary to determine whether the Respondent Union caused, or attempted to cause, his
discharge. Even assuming the Respondent Union, through the recommendation of its trustee,
Donald Evans, caused the Charging Party’s termination, the evidence is insufficient to 40
establish any unlawful motivation behind this recommendation, for the reasons stated above.
Finally, in the absence of a prima facie case, it is unnecessary to determine whether the
Charging Party would have been terminated in the absence of any protected activity under the
Wright Line analysis.10

10 Even if the evidence was sufficient to support a prima facie case, I would find on the evidence
JD(ATL)–11–14
10
CONCLUSIONS OF LAW
1. The Respondent Gulfport Stevedoring Association–International Longshoremen’s
Association Container Royalty Plan is an employer engaged in commerce within the meaning 5
of Section 2(2), (6) and (7) of the Act.
2. The Respondent International Longshoremen’s Association Local 1303 is a labor
organization within the meaning of Section 2(5) of the Act.
10
3. The Respondent Plan did not violate Section 8(a) (1) and (3) of the Act by
discharging Tommy Evans on December 15, 2012.
4. The Respondent Union did not violate Section 8(b)(2) of the Act by causing, or
attempting to cause, the Respondent Plan to discharge Tommy Evans for discriminatory 15
reasons in violation of Section 8(a)(3) of the Act.
5. The Respondents did not individually or collectively violate the Act in any other
manner alleged in the complaint.
20
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11
ORDER
25
The complaint is dismissed.
Dated, Washington, D.C. February 27, 2014
30
Michael A. Marcionese
Administrative Law Judge
35

here that the Respondents met their burden of showing that the Charging Party would have been
terminated for the reasons asserted by their witnesses. See Rockwell Automotive/Dodge, 330 NLRB
547 (2000).
11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.