Hallmark Stevedoring, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 15, 2004

12-CB-005156 (N.L.R.B. Mar. 15, 2004)

JD(ATL)–14–04
Ft. Lauderdale, FL

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES

INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION, LOCAL 1526, AFL-CIO
(Hallmark Stevedoring, Inc.)

and Case 12-CB-5156

LESTER ALEXANDER, An Individual

Marcia Valenzuela, Esq. for the General Counsel.
Neil Flaxman, Esq. (Flaxman, P.A.), of Coral Gables,
Florida, for the Respondent.

DECISION

Statement of the Case

JOHN H. WEST, Administrative Law Judge: Upon a charge filed by Lester Alexander on
May 8, 2003, as amended by a charge filed June 30, 2003 against International
Longshoremen’s Association, Local 1526, AFL-CIO (Respondent or Union), a complaint was
issued on August 25, 2003 alleging that the Respondent (1) violated Section 8(b)(1)(A) of the
National Labor Relations Act, as amended (Act) since on or about November 8, 20021 by (a)
maintaining and using unlawful subjective criteria in selecting and appointing employees to the
position of “second man”, including (i) good moral character with membership, (ii) loyal and
dedicated to the long shore craft, and (iii) be a member in good standing, and (b) maintaining
and using unlawful subjective voting requirements by giving sole discretion to the Executive
Board in selecting and appointing employees to the position of “second man,” and (2) violated
Sections 8(b)(1) (A) and 8(b)(2) of the Act on December 16 by failing to select and appoint
Alexander to second man positions with Employers Hallmark Stevedoring, Inc. (Hallmark) and
Eller & Company (Eller) by using the unlawful subjective criteria and voting requirements
described above, and for arbitrary, capricious and invidious reasons. In its answer to the
complaint the Union admits that the criteria as described have been utilized, and it is admitted
that “membership” should be excluded from such criteria. The Union also asserts that the
criteria utilized by the Executive Board are not subjective, for the purpose intended. The Union
denies violating the Act as alleged in the complaint, and it affirmatively argues, inter alia, (1) that
in the situation at hand the Union should be allowed to establish criteria such as (a) good moral
character, and (b) loyal and dedicated service to the long shore craft, and (2) Alexander is
precluded from bringing this complaint because he did not avail himself of all the internal union
remedies available to union members who feel aggrieved by actions of the Executive Board.

A trial was held in this matter on December 10, 2003 in Miami, Florida. On the entire
record, including my observation of the demeanor of the witnesses, and after considering the
briefs filed by General Counsel and the Respondent, I make the following
1 All dates are in 2002 unless indicated otherwise.

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Findings of Fact

I. Jurisdiction

It is admitted that Hallmark, a Florida corporation with an office and place of business at
Port Everglades in Ft. Lauderdale, Florida, has been engaged in the business of loading,
unloading and providing other stevedoring services. The complaint alleges, the Union admits,
and I find that Hallmark 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. The Alleged Unfair Labor Practices

The Facts

On or about December 1, 1990, Respondent, along with its International and other ILA
local Unions, and Hallmark, along with Eller and other employers that are part of the Southeast
Florida Employers Port Association, Inc. (SFEPA), entered into and since then have maintained
successive collective-bargaining agreements for Southeast Florida Ports, including Port
Everglades in Ft. Lauderdale, Florida, covering conditions of employment of a unit that includes
Hallmark’s longshorepersons, Eller’s longshorepersons, and other employers’
longshorepersons, and requiring, inter alia, that Respondent be the exclusive source of referrals
of longshorepersons for employment with Heller, Eller, and other employers. At all material
times, based on Section 9(a) of the Act, Respondent has been the exclusive collective
bargaining representative of a unit that includes Hallmark’s longshorepersons, Eller’s
longshorepersons, and other employers’ longshorepersons.

The involved collective bargaining agreement, the Union by-laws, and the Constitution
and Rules of Order of the International Longshoremen’s Association AFL-CIO were received by
stipulation as General Counsel’s Exhibits 9, 10, and 11, respectively.

It is admitted that Ossia Rush is the Respondent’s Executive Board Chairperson, Lewis
Tunnage is the Union’s President, Harold Walden is the Vice President, and Gus Wilkerson is
the Financial Secretary.

The Respondent admits that it operates an exclusive hiring hall and longshoremen get
referred to jobs by going to the Union hall. The positions include crane operators, forklift drivers,
tractor-trailer drivers, water boys, second men, headers, and porters. The Union has 10 cargo
gangs and 5 porter gangs.2 A header of the gang has the right to pick the people, based on
seniority and qualifications, who will work with him on a particular day. The second man
automatically goes with the header. Tunnage testified that the header, who supervises the gang
including the second man, never determines who will be his second man, but the header can
recommend someone; that the second man is just another member of the gang unless the
header is absent; and that generally it has been the rule that when the header retires, the
second man automatically becomes the header. Seniority of those who shape up is determined
2 Anyone working on a porter gang is able to receive tips. Customarily there are no tips on a
cargo gang. Tunnage testified that for this reason it is more lucrative for a second man to work
on a porter gang than a cargo gang.

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with a union work card which shows the number of qualifying years.3 As noted, individuals
chosen must be qualified to perform the task involved, i.e. if a forklift driver is needed, the
individual must be certified as a forklift driver.

Alexander testified that generally he goes to the Union hall every day at about 6 or 7
a.m.; that the header chooses individuals based on seniority and qualifications, which is called
for by the hiring hall rules as stated in the collective bargaining agreement; that the business
agents, Harold Walden or Gus Wilkerson III, make the final decision with respect to who works;
that his work card, General Counsel’s Exhibit 18, shows that he has 20 years of seniority4; that
the Local has a pattern of not using seniority and qualifications when dispatching people as
water boys and second men; and that as demonstrated by his March 18 letter set forth below,
he attempted to rectify this problem.

As here pertinent, the stipulated minutes for the October 27, 1999 Executive Board
Meeting of Local 1526, General Counsel’s Exhibit 5, read as follows:

Mr. Hill explained that Eric Griffin declined being a Second Man to Lee William. ….

….

The Executive Board voted on Second Men to the Header:
Stanley Lawson to Header Joseph Kelly, motion made and seconded, passed
unanimously
Walker to Header T. Wallace, motion made and seconded, passed unanimously
Bruce Phillips to Header Gus Roberts, motion made and seconded, passed by majority
vote
Christopher Pinkey to Header Lee Williams, motion made and seconded, passed
unanimously
Wilbert Hill, Jr. to Header Jesse Wilson, motion made and seconded, passed by majority
vote

As here pertinent, the stipulated minutes for the October 28, 1999 Executive Board
Meeting of Local 1526, General Counsel’s Exhibit 6, read as follows:

Wilbert Hill, Jr. declined and withdrew as Second Man to Header Jesse Wilson.

….

The Executive Board voted on Second Man to the Header:
Lester Alexander to Header Jesse Wilson, motion made and seconded, passed by
majority vote.

Leonard Mitchell asked if William Anderson can have a temporary Second Man until
Lynn Sheffield comes back. President Ellis Hill stated that we never had a temporary
Second Man position. Leonard Mitchell made a motion that John P. Walden be
temporary Second Man to Header William Anderson. Seconded by John P. Walden.
There were no ‘Ayes,’ there were no ‘Nays.’
3 Qualifying years means that the individual has worked a sufficient number of hours in a
given year to qualify for medical benefits, other benefits, vacation, and holiday pay.
4 Alexander testified that he has 22 years of vested seniority.

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As here pertinent, the stipulated minutes for the November 29, 1999 Executive Board
Meeting of Local 1526, General Counsel’s Exhibit 7, read as follows:

Lester Alexander declined being Second Man to Header Jesse Wilson.

Alexander testified that he was twice elected Recording Secretary beginning in 1999,
and he presently holds that position; that he is responsible for taking notes of the Executive
Board and Regular meetings, and he prepares, distributes and reads the minutes at the
following meeting; and that if someone disagrees with the minutes, they are corrected.

In mid-January 2002 Alexander, as indicated in his March 18 letter set forth below and
according to his testimony, advised Benny Holland, Jr., President of South Atlantic and Gulf
Coast District, International Longshoremen’s Association (ILA) that some positions in the Local
were being assigned in violation of hiring guidelines as set forth in the Collective Bargaining
Agreement of ILA 1526 & 1526 A. Alexander testified that Tunnage assigned people to
permanent positions who had less seniority than others; that when a second man position
opens, nepotism and family membership come into play; that the Executive Board has indicated
that to be a second man, the individual must have ten years of vested seniority, and they should
be drug free; and that no one has ever taken a drug test.

By letter dated March 18, stipulated General Counsel’s Exhibit 17, Alexander advised
Holland as follows:

I am writing this letter to inform you that the ongoing issue of seniority has once again
reared its head in Local 1526

As you may recall, I wrote to you on January 16, 2002, to notify you that some positions
in our Local were being assigned in violation of hiring guidelines as set forth in the
Collective Bargaining Agreement of ILA 1526 & 1526 A originally effective October 1,
1991 (and since extended to present year). I am specifically referring to a situation
where a union member of lower seniority was appointed over the objections of other
union members with higher seniority, to the position of temporary second man. Sad to
say, this situation has not yet been resolved: a person of lower seniority continues to
occupy the temporary second man position.

Though I do not officially write this letter to you as a member of the Executive Board, I
would like to note that many members of our Local have indeed approached me in my
capacity as Recording Secretary and complained about the unfairness of (and possible
illegality of) how our union has been handling the seniority issue. Many members are
afraid of retribution, so I have taken it upon myself to speak for those who may be afraid
to speak for themselves.

As loyal union members everywhere will undoubtedly argue, seniority is one of the
cornerstones of strong unions; to run a Local in any other manner which fails to
recognize the rights of workers as they ‘pay their dues’ and put in their time, only to see
less senior members ‘leapfrogged’ over them, not only undercuts the values that we all
build, but it can have catastrophic effects on moral.

The most recent procedural error which needs to be immediately addressed regards the
position of ‘ Water boy.’ Recently, our newly elected President of Local 1526 & 1526A,
Lewis B. Tunnage, filled a vacant ‘Water boy’ position. Many of our members have

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expressed great concern that a member of lesser seniority has been appointed to this
position while other more senior members are available and willing to serve in this
capacity.

President Tunnage stated during the ILA Local 1526 meeting of March 12, 2002, that
‘… anyone who is complaining and has higher seniority than Herman Wilson can have
the water boy position ….’ I am not sure of how many members with higher seniority
have requested the ‘Water boy position,’ (as I can only speak for myself), but I can state
emphatically that I have requested this position, and I was denied consideration. And I
do have more seniority that the person that was appointed. Other members have asked
me how this can be possible, but I have not found a suitable answer for them. As
Recording Secretary, it is my duty to maintain verbatim audio recordings of all
proceedings. I will be happy to furnish copies upon request.

I have contacted you, because according to the policies of the International
Longshoremen’s Union, it is your duty, as President of the South Atlantic and Gulf Coast
District of the ILA, to address this matter and help to resolve this situation. But the most
important reason in writing to you is because I know that your are a concerned and
caring man, and a professional representative of our union. You have always stood for
fairness; in my observations, you have dealt with all issues in an even-handed manner.

I realize that our President is new to his job. We all want to give him a chance to ‘learn
the ropes’ so he can succeed and become a good leader. I believe that a rising tide
raises all boats. Please don’t come down too hard on him; perhaps you can offer him
some good advice and counseling to help him grow and serve us better. The goal is to
keep our union strong!

I respectfully request that you intervene and act immediately; let’s keep our moral[e]
high! [Emphasis added]

A copy of this letter was sent to Tunnage. Tunnage testified that some people want the water
boy position because while they are supposed to work an eight hour day, some of them leave to
take care of personal business while they are being paid to be a water boy; and that very few
people would want to be a water boy when they can gain all those tips when working on a
passenger ship.

As here pertinent, the stipulated minutes for the March 20 Executive Board Meeting of
Local 1526, General Counsel’s Exhibit 12, read as follows:

CRITERIA FOR BECOMING A SECOND MAN
(See copy)
1. At least ten (10) years qualified seniority (contract years) [The “(contract years)” was
crossed out with a pen and “vested” was handwritten above the cross out.]
2. Good moral character with membership.
3. Loyal and dedicated to the long shore craft.
4. Drug-free. Drug test required.
5. Be a member in good standing.
[Below these five criteria the following appears in handwriting: “The Executive Board
state [sic] these are the criteria that was accept [sic] by the Executive Board.”]

The words “Good moral character” will come from Webster’s Dictionary of “character,”
not a lay person’s meaning.

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Stipulated General Counsel’s Exhibit 13, reiterates the five above-described criteria using the
word “vested” instead of “(contract years)” in criterion number 1. When called by Counsel for
General Counsel, Tunnage testified that these criteria, which only applied to the second man
positions, were posted on the inside and outside bulletin Boards they have at the Union hall, he
did not remember the exact date, he did not remember for how long, but they were posted
shortly after the March 20 meeting when they were accepted; that criterion number 5, namely,
“Be a member in good standing” had been eliminated about November 2003 because the Union
had been advised by its attorney that this criterion was not lawful; that the Union was waiting on
its attorney to give it “some workable criteria … that’s equitable to everybody” (transcript page
42) and “fair to everybody” (transcript page 43); and that at the present time the remaining
above-described criteria are still in effect. Alexander testified that the Executive Board voted on
and approved the criteria but the criteria were never approved by the members; that the
International Union’s General Counsel advised him that the Executive Board “sets up the
criteria, [and then] take it to the members for the final approval” (transcript page 91); that the
criteria were never presented to the membership for approval; and that he has recorded the
minutes for the meetings of the Local for the last 5 years. On cross-examination Alexander
testified that at the March 20 meeting he voted to approve the criteria for the second man
positions because he felt that seniority should be the only factor in filling the second man
position in that the first criterion calls for at least 10 years qualified seniority, and he assumed
the member with the most seniority would be considered first; that the President and the Vice
President of the Respondent put the criteria together and the other Executive Board members
were given the criteria when they came to the March 20 Executive Board meeting; and that
when he voted on the criteria at the March 20 Executive Board meeting he was under the
impression that seniority and qualifications were the basis for selecting a second man. As
indicated by the last page of General Counsel’s Exhibit 12, at one point criterion 2 read “Good
moral character with membership and officials of Local 1526.” Harold Walden, the Vice
President of the Local, testified that “and officials of Local 1526” was deleted because officials
are part of the membership and it was not necessary to also have “and officials of Local 1526” in
the criterion.

As here pertinent, the stipulated minutes for the April 2 Executive Board Meeting of
Local 1526, General Counsel’s Exhibit 3, read as follows:

After discussing that Randolyn Green had 8, not 10 years vested, President Tunnage
asked Harold Walden to begin the voting for Second Man.

….

Lester Alexander stated he is not going to vote for anyone because a meeting held
February 11, 2002, with District President Holland and others stated we have a seniority
system for Second Man and when the members approve it, then a Second Man can be
put in place.

Before Lester Alexander was allowed to finish his statement, President Tunnage stated,
I told you not to bring up what Benny Holland said unless you have a letter from him.
President Tunnage stated we have set a criteria for Second Man. Bringing up Benny
Holland’s name is well and good, but we have a criteria for Second Man.

….

Vice President [Harold] Walden asked what we are going to do with John P. Walden and

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Header Willy Anderson. President Tunnage stated that he thought he had made it official
at the last meeting that John P. Walden is Second Man to Header Willy Anderson. ‘All in
favor let it be known by the sound of “Aye.” ’ Lester Alexander stated that he was not in
favor of this motion.

President Tunnage stated that he was hurt that Lester Alexander has sent President
Benny Holland a letter, and he said that Lester Alexander cannot send the Minutes to
anyone. If so, he will have Lester Alexander in court for a number of reasons.

Alexander testified that John P. Walden was appointed by Tunnage at an Executive Board
meeting on April 2 to fill a second man position on a porter gang; that the Vice President of the
Local, who is John P. Walden’s brother, asked what they were going to do about the second
man position and President Tunnage, who said that he thought that he already made John P.
Walden permanent for that position, announced that John P. Walden would be the permanent
second man to Header Willie Anderson; that after this meeting John P. Walden became a
permanent second man; that he spoke out at this Executive Board meeting against giving the
second man position to anyone until criteria were established for selecting the second man; that
while there were criteria at that time, the members had not voted on that criteria at the time; that
on April 2 John P. Walden, who was the Treasurer of the Local, was appointed as Header5; and
that John P. Walden is not allowed to hold the positions of Treasurer and Header at the same
time because it is prohibited by the International Constitution.

By letter dated April 24, General Counsel’s Exhibit 19, Holland advised Art Coffey and
Clarence Pittman, both Vice Presidents of South Atlantic & Gulf Coast District, ILA, as follows
regarding Local 1526 seniority complaints:

As District Vice Presidents for that area, I am hereby requesting that you
investigate the numerous seniority complaints from Local 1526 in Ft. Lauderdale. As you
know, seniority issues are local issues, and the District does not normally get involved.
However, I do believe we should find out if we can be of assistance when we have
complaints from a number of members, as we have in this case.

I have asked President Tunnage to review the matter with the local’s attorney
and meet with the men involved in an attempt to resolve their complaints. He is to
provide me with a written report on the results of those meetings. Please contact Lewis
[Tunnage] and provide such assistance as may be needed to address these problems.

Copies of my letter of April 12 and the numerous complaints I have received are
enclosed for your information.

Copies of the letter were sent to Tunnage and Alexander.

By letter dated August 1, General Counsel’s Exhibit 20, Clyde Fitzgerald, President of
South Atlantic & Gulf Coast District, ILA, advised Tunnage regarding seniority complaints as
follows:

This will confirm the fact that I have asked the District’s attorney, Jim Watson, to come to
Ft. Lauderdale and meet with all parties in an effort to resolve the numerous seniority
5 As noted above, Tunnage testified that generally it has been the rule that when the header
retires, the second man automatically becomes the header.

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complaints that have been received by this office. Mr. Watson will meet with you at your
local union at 9:00 a.m. on Wednesday, August 14, and will meet with the complainants
at 9:30 a.m. on that same date.

Please let me know if you have any questions.

A copy of the letter was sent to Alexander.6

As here pertinent, the stipulated minutes for the September 3 Regular ExecutiveMeeting
of Local 1526, General Counsel’s Exhibit 4, read as follows:

Harold Walden discussed the issue of a Second Man. He explained that Solomon
McPhaul, Jr. would be a good Second Man for a number of reasons. Harold Walden
nominated Solomon McPhaul, Jr. for Second Man. Randolyn Green stated that Solomon
McPhaul would not be a good Second Man for a number of reasons.
Ossia Rush votes for Solomon
Terrence Cunningham votes for Solomon
John P. Walden votes for Solomon
Lester Alexander votes for Solomon
Gus Wilkerson III votes for Solomon
Solomon McPhaul will be the Second Man to Wenton Ward.

Harold Walden stated that Jerome Griffin needs a Second Man. He stated that Louis
Gayle would be a good Second Man. Harold Walden decided that we would not go by
6 General Counsel’s Exhibit 20 is three pages. The first page is the above-described letter.
The second and third pages are a memo from James R. Watson dated May 23 to Holland
regarding seniority issues in general. As can be seen, the memo is not referred to in the body of
the August 1 letter. Also it is not described as an attachment at the bottom of the letter. The
memo ends with the following paragraph:
My suggestion is that all locals be encouraged to review their current referral policies to
make sure they: (1) satisfy all legal requirements for non-discrimination; (2) give
consideration to qualifications as well as seniority in job referrals; (3) provide an effective
grievance procedure for individuals who have complaints about the hiring process; and (4)
institute a training program for those persons who are involved in the referral process.
It also contains the following:
Typically, seniority is used in the longshore industry for hiring/referral purposes. The
reason seniority was chosen as a basis for job referral is that there had been a history of
favoritism and discrimination in the hiring process in our industry.
….
In our case a decision was made that referrals on the basis of seniority was the system that
worked best in the longshore industry. The NLRB and various courts have ruled that
referrals on the basis of seniority are permissible and, therefore, that this is an acceptable
system.
….
… locals have agreed to refer individuals … to … employers… who are qualified for their
specific needs.
… local agreements … should say, referrals are to be on the basis of ‘seniority and
qualifications.’ It is not necessary to agree that priority will be given to the most qualified
person; but the locals could insist that priority be given to the most senior person(s) who
possess(s) the qualification(s) required for the job. [Emphasis added]

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seniority for Second Man for a number of reasons.
Harold Walden Nominated Louis Gayle for Second Man to Jerome Griffin.
Randolyn Green votes for Louis Gayle
Ossia Rush votes for Louis Gayle
Terrence Cunningham votes for Louis Gayle
John P. Walden votes for Louis Gayle
Lester Alexander votes for Gary Hill
Gus Wilkerson III votes for Eddie McReed

Harold Walden stated that John Dudley needs a Second Man. Harold Walden nominated
Terrence Cunningham.
Randolyn Green votes for Terrence Cunningham
Ossia Rush votes for Terrence Cunningham
Terrence Cunningham votes for Terrence Cunningham
John P. Walden votes for Terrence Cunningham
Lester Alexander votes for Lorenzo Dudley
Gus Wilkerson III votes for Terrence Cunningham

By letter dated September 13, stipulated General Counsel’s Exhibit 16, Alexander
advised Tunnage as follows:

This letter is sent to you as a professional courtesy to remind you of your memo
circulated to the membership on September 3, 2002, and also to protest your
unprofessional and highly improper actions towards me at Executive Board meetings.
Though I have disagreed with you on many decisions, I have always respected the office
of the Presidency of Local 1526.

In your memo, you stated that the ‘Executive Board never has or will not show any type
of retaliation because of someone expressing his/her thoughs [sic] (right or wrong).’ …. I
would strongly support such statement, if it were in fact true. However, we all know that
actions speak louder than words, and ‘one should be judged by their deeds, and not
their words alone.’

Your actions and deeds are very clear. You have chosen to implement what amounts to
a ‘gag order’ against me. As we are all aware, I many times find myself as the lone
dissenting voice, as one vote on the opposing side of the majority of the Executive
Board. In December of 2001, I was democratically elected by the membership of Local
1526. That meant that I was given a voice and a vote on the Executive Board. I was
elected to speak up for many of those members who can not or are afraid to speak up
for themselves. Yet, many times when I am duly recognized and then when I give oral
arguments that your disagree with , you tell me to ‘shut up’; this is conduct
unprofessional and unbecoming of a President of a Local Union. No Mr. President, I will
not shut up and I will not remain silent when there are many members of this union who
look to me to represent their voices at the Executive Board level. I was elected to do a
job, and do it I must, even if it means (as you have threatened) seeing you file
grievances against me for just trying to do my job.

I will continue to execute my duties as Recording Secretary and as member of the
Executive Board even though it means that you will, (contrary to your previously stated
position otherwise) retaliate against me. You have badgered and ridiculed me for
expressing opinions which represent those of members who have asked me to argue on
their behalf. You have threatened me with retaliatory action by stating that you will file

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grievances against me for not ‘shutting up,’ even after I have been recognized by the
chair. My claims are supported by your statements which are clearly audible on the tape
recordings of our proceedings.

As keeper of the official minutes of the meetings, I am obligated to make copies of this
information available (within a reasonable amount of time) to any member who wants
access; these are not for the exclusive use of the President. Though you as President of
our Local ‘outrank’ me, we are both members of Local 1526; we were not anointed to
dictatorships, but rather as stewards acting in the best interests of the membership, in a
democracy this means that sometimes there will be non-unanimous and conflicting
opinions. We must never forget the responsibility that goes with our positions. [Emphasis
added.]

A copy of the letter was sent to District President Clyde Fitzgerald, President Art Coffey, and
President Clarence Pittman.

Alexander testified that Tunnage responded to his September 13 letter when he
presented it to Tunnage, by telling him, after Tunnage read the letter, while they were alone in
the conference room in the Union hall that he was going to take his union card, kick him out of
the Local, and bar him from the Union hall.

Stipulated General Counsel’s Exhibit 14 are the Executive Board minutes for November
19.

As here pertinent, the stipulated minutes for the December 11 Regular Meeting of Local
1526, General Counsel’s Exhibit 8, read as follows:

Lester Alexander explained to the Members of Local 1526 that the Executive Board
Members have already conspired to give the second man position for Header Willie
Mann to Ervin Bynes. He explained to the Members that there is nepotism, favoritism,
and family running the Local. He also explained to the Members that the International
Constitution Article XIII, Section 4 talks about a Header [referring to John P. Walden]
being on the Executive Board.

President Tunnage stated that he has a letter regarding this matter that is dated
December 2, 2002. Gus Wilkerson III acknowledged that President Tunnage gave him a
copy of this letter today.

Alexander testified that he was informed that John P. Walden could not act as Treasurer and
Header simultaneously in December 2002 before a vote was taken as to who would be second
man to Willie Mann; and that Article XIII, Section 4 of the Constitution and Rules of Order of the
International Longshoremen’s Association, page 24 of General Counsel’s Exhibit 11, reads as
follows:

No member who is an officer, director, partner, or principal in , or is employed in a
supervisory job by, a business organization with which the I.L.A. or any of its
subdivisions, bargains or seeks to bargain collectively, can at the same time hold any
office or be a candidate for any office in a local union of the I.L.A.

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Alexander further testified that John P. Walden became a header in the first quarter of 20027;
that he was pointing out at the December 11 meeting that what John P. Walden was doing was
prohibited by the International Constitution; that John P. Walden was in violation of the
Constitution; and that the International Constitution does not provide for the continuation in the
Union office in an acting capacity until he is replaced.

By letter dated December 11, stipulated General Counsel’s Exhibit 15, Alexander’s
attorney, Costell Walton, Jr., advised Tunnage, and Rush as follows:

As you are aware, I represent Lester Alexander, a member of ILA Local 1526 with in
excess of twenty (20) years of seniority.

In the recent past, my client has been passed over for header positions, and a Second
Man position is presently open and being considered.

My client is available and has requested appointment to the Second Man position,
however, it is anticipated that he will again be passed over for the position as retaliation
for his demand for adherence to appropriate hiring hall rules and practices by the union
leadership.

It is my client’s desire that he be considered for appointment to the open Second Man
position in view of his qualifications, seniority and experience.

However, as you are aware, the seniority system which was to have been developed
and presented to the membership of Local 1526 for approval, has not been established
as required.

It is my client’s position that no appointments be made until the seniority system had
been developed and approved by the Local, as required.

Further, it is my client’s position that all appointments unilaterally made by the President,
Lewis Tunnage, be voided because of the arbitrary, discriminatory and capricious
manner in which they have been made.

It is my opinion that contrary to the Constitution and by-laws of the International and
Local, actions have and continue to be arbitrarily undertaken to the harm and damage of
the membership of the Local.

Demand is hereby made for cessation of all such activities, actions and appointments
until and after a review of all appointments as to their compliance with the constitution,
by-laws and hiring practices of the International and Local had been made.

If a positive response is not received to my client’s demand within seven (7) days of your
receipt of this letter, appropriate action(s) will be taken.

As here pertinent, the stipulated minutes for the December 16 Executive Board Meeting
of Local 1526, General Counsel’s Exhibit 2, read as follows:

7 As a header, John P. Walden is considered a supervisor of the employer as defined in
Section 2(11) of the Act. North Carolina Shipping Association, 326 NLRB 280 (1998).

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President Tunnage stated that Floyd Harper will be the second man to John P. Walden.
He also talked about a second man to Header Willie Mann.

Harold Walden votes for Ervin Bynes. Randolyn Green voted for Lester Alexander.
Ossia Rush voted for Ervin Bynes. Terence Cunningham voted for Ervin Bynes. John P.
Walden voted for Ervin Bynes. Lester Alexander voted for Lester Alexander. Gus
Wilkerson III voted for Lester Alexander.

President Tunnage stated that Ervin Bynes will be the second man to Header Willie
Mann.

Secretary Lester Alexander was unable to finish the Meeting.

When called by Counsel for General Counsel, Tunnage testified with respect to the December
16 meeting that Alexander expressed his interest in the second man position to work with
Header Willie Mann; that a majority of the Executive Board members voted for Bynes over
Alexander; that at the time Alexander had more seniority than Bynes; that Alexander was
qualified for the second man position; that Bynes is Harold Walden’s cousin; that Harold Walden
is the Vice President of the Local; that Bynes still works in the involved second man position;
that he believed a second man slot for a porter gang did become vacant after Bynes got the
second man position on December 16 in that there was a second man position opening under
John P. Walden but Alexander declined; that John P. Walden, who voted for Bynes on
December 16 (and who is Bynes cousin), is no longer on the Executive Board because he is a
Header and he can not be a Header and be on the Executive Board at the same time; that John
P. Weldon was the Treasurer of the Union prior to the December 16 Executive Board meeting;
that he was not told before December 16 that John P. Walden could no longer be Treasurer of
the Local; that he was told before December 16 that John P. Walden had to be replaced, but not
that John P. Walden could not perform his duties and had to resign and step down immediately;
that a new Treasurer was elected in the first quarter of 2003; that he did not recall if the District
advised him that John P. Walden had to be replaced before December 16; that the vote was
four to three in favor of Bynes, and if John P. Weldon did not vote, the vote would have been
three to three; and that when there is a tie he has the deciding vote. Tunnage subsequently
testified that he believed that there is a provision in the International Constitution which
precludes a header from holding office in the Local, and the provision allows the individual to
continue as an acting officer of the Local until he, as here pertinent, is replaced.

Alexander testified that he stated at an earlier membership meeting that the Executive
Board had conspired to give the second man position on Header Willie Mann’s porter gang to
Bynes; that when the Board members gave the second man position to Bynes he spoke up at
the meeting, indicating that he did not agree with the Board members giving the second man
position to someone with lesser seniority, they should have criteria set up, and they should
follow the collective bargaining agreement in giving out second man positions; that at the time
Bynes had about 16 years seniority; that Bynes served as second man after this meeting; that
Bynes is a cousin of Vice President Harold Walden and Treasurer John P. Walden; that he has
never failed a drug test; and that when he voted for Bynes for the second man position, John P.
Walden was both a Header and the Treasurer of the Local, which as indicated above, is
prohibited by the International Constitution. On cross-examination8 Alexander testified that at
Continued
8 The Respondent’s attorney, Neil Flaxman, did not cross-examine Alexander when Counsel
for General Counsel called him because Flaxman wanted to call two witnesses to briefly
sponsor some exhibits. Subsequently Flaxman called Alexander for what was, in effect, his

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_________________________
this meeting of the Executive Board Tunnage said that he wanted someone other that
Alexander to be chosen for the second man position; that some of the other Executive Board
members indicated that they wanted someone other than Alexander to be chosen for the
second man position but they did not give their reason; that he should have received the
second man position based on his seniority and qualifications in that he has worked as a porter;
and that he did not appeal the Executive Board’s decision with respect to giving the second man
position to Bynes because it would be like beating his head against a brick wall. On redirect
Alexander testified that at the December 16 Executive Board meeting when Bynes was elected
as second man the Executive Board members never discussed tip solicitation or any complaints
from employers or any grievances, and complaints from employers or grievances were not
distributed. Subsequently Alexander testified that he was more qualified for the second man
position than Bynes “on a lot of character reasons” (transcript page 183); that character comes
into play with regard to qualifications; and that the solicitation of tips should be taken into
consideration with respect to qualifications. On rebuttal Alexander testified that grievances
against him never came up at meetings during 2001 or 2002; that he left the December 16
meeting before it ended; that he was present when the Executive Board members discussed the
two second man positions; and that he was present when the vote was taking place on the
second man positions.

Subsequently Alexander testified that after December 16 another second man position
opened up on a porter gang and he did not apply for it because the header was John P. Walden
and he had more seniority than John P. Walden; that he did not want any animosity between
himself and John P. Walden; and that he did not want to work with John P. Walden.

Edwin Stewart, who is the Fund Manager for the ILA Employers’ benefit funds,
sponsored Respondent’s Exhibits 5 and 6 which show that Alexander had 3 years more
seniority than Bynes in December 2002.

Alleged Tip Solicitation Evidence

Before he called anyone who was present at the December 16 Executive Board meeting
the Respondent’s attorney, Flaxman, had two witnesses testify about and sponsor certain
documents which refer to alleged tip solicitations. At the outset Counsel for General Counsel
objected to such evidence as being irrelevant. The involved transcript reads as follows:

MS. VALENZUELA: I object, your Honor. This is irrelevant.

MR. FLAXMAN: Your Honor, these documents - - the evidence will show these
documents were part of the decision making process. They were in Lester Alexander’s
file.

It lays the predicate for this disciplinary action taken by the Committee against
Mr. Alexander, which in part was the basis for its decision, the Executive Board’s
decision. Everybody had knowledge of it.

The evidence will show Mr. Alexander was suspended from being a porter
because of solicitation of tips. And it goes to the allegation that this was an invidious, I
think they call it, get even type of scheme as compared to a fair and reasonable
cross-examination. Accordingly, his subsequent questioning by Counsel for General Counsel
and his own attorney will be treated as redirect.

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decision.

MS. VALENZUELA: Your Honor, I understand what Respondent feels will be
produced. However, that connection has not been made yet and, therefore, it is
irrelevant.

MR. FLAXMAN: Your Honor, at this point I would like to introduce and we explain
that I’m in this position only because of counsel having refused to go ahead and to prove
the authenticity of these documents after once having done this.

I will tie it up. If I do not tie it up, you can strike it, but I will tie it up. This is [sic]
documents that already have been identified for identification. Now I have to try to get
them in evidence. [Emphasis added]

JUDGE WEST: You put the cart before the horse.

….

MR. FLAXMAN: Well, Your Honor, I have the man here. May I please present the
evidence and then you can certainly, if I don’t tie it up, consider it irrelevant. [Emphasis
added]

JUDGE WEST: Subject to connection, proceed.

….

Q. All right. Do you have your records and documents with you, sir, concerning that
complaint?

A. Yes.

MS. VALENZUELA: Your Honor, I have a longstanding objection based on
relevance, concerning any complaints or incidence concerning tips solicitation for the
same reason.

MR. FLAXMAN: No, these are all the files. The evidence will be these are facts
that the Executive Board considered. [Emphasis added]

….

MR. FLAXMAN: Your Honor, I have live witnesses at that time will testify that this
was common knowledge. It doesn’t happen often. It was in the mind - - Mr. Tunnage will
testify that was a consideration. Mr. … Harold … [Walden] will testify …. that was one of
his considerations. This is - - goes to the heart of the fact that this was not a conspiracy,
this was not based upon nepotism, this was not based upon anything but under what we
claim is a criteria that the Board should consider, the Executive Board should consider.
[Emphasis added]

Whether it’s qualifications, experience or whatever it is, I certainly should have a
right to show the fact that this man was suspended as a porter for taking tips. He
couldn’t even work as a porter for taking tips. And certainly this should be a criteria.

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JUDGE WEST: But the suspension is relevant only if in fact, we can determine
whether it was actually considered. Question one … you have the minutes.

Did you have any open discussion of this tip matter during the Executive Board
meeting before a vote was taken?

And is that open discussion during the Executive Board meeting covered in the
minutes that we have now received in evidence with respect to the December 16, 2002
meeting?

MR. FLAXMAN: Okay. The answer to your question is they are not covered in
the minutes. The reason they’re not covered in the minutes because the minutes are not
a verbatim transcript of everything that’s prepared by Lester Alexander, but we approved
them.

So we’re not questioning the validity of the minutes. Not everything is in the
minutes. The issues related to a discussion, yes. We have testimony. I’ll have to tie this
up from both Mr. Tunnage and both Mr. Harold Walden. [Emphasis added]

Yes, they considered the man, in fact, soliciting tips. I mean that was one of the
considerations.

JUDGE WEST: Considered, discussed open[ly] … during the Executive Board
meeting?

MR. FLAXMAN: You’ll hear from the witnesses. Yes it was discussed. They knew
about it. They knew Mr. Alexander’s background. They knew all these things. They
considered it. [Emphasis added]

Now, whether you believe it or whether or not you want to say it’s not true, that’s
fine, but this is the heart of my case. This gentleman was suspended. It’s very rare that
this happens.

These documents I got from his file. Everybody knew about it, everybody
considered it. I mean everybody - - this is not a secret. [Emphasis added]

JUDGE WEST: That would be very important if such a discussion, in fact,
occurred, and that discussion was not covered in the minutes for the December 16, 2002
Executive Board meeting.

We’ve heard testimony that any member, upon a subsequent reading of the
minutes, could object and the minutes would be corrected.

Is there any record, any subsequent correction of the December 16, 2002
minutes - -

MR. FLAXMAN: No, but this - -

JUDGE WEST: - - to show that there was a discussion, an open discussion
during the Executive Board meeting in front of all the Executive Board members of this
tip question?

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MR. FLAXMAN: No, your Honor, because they’re not a verbatim transcript. I
mean the meetings go on for two hours, you have two pages of minutes. So the answer
is no, and no one thought the necessity of doing it.

Everybody - - I mean … it’s wonderful if somebody would have said amend the
minutes to put all - - if you look at all the minutes, there are two pages, three pages; they
are not a verbatim transcript.

So to say that they’re not in there means it never occurred is to pre-judge the
case. Allow my witnesses to be presented and show you it did occur. At least they are - -
everyone knew about it. It was a consideration. [Emphasis added]

JUDGE WEST: Not pre-judging the case, but in other words there is no written
documentation whatsoever about this discussion, which assuredly took place during the
December 16, 2002 Executive Board … meeting?

MR. FLAXMAN: I don’t know of any documentation which memorializes other
than the records, the personnel file of Mr. Alexander himself, that memorializes those
things, other than the file. I mean - -

JUDGE WEST: Does it memorialize anything with respect to the December 16,
2002 Executive Board meeting?

MR. FLAXMAN: No, other than the fact that it’s in the file. I mean that was his
personnel file. I got these documents form his file. I got it from the people that have the
file of Lester Alexander.

Harold [Walden], on the Executive Board has the file. That’s where I got these
documents. Had the documents not been in the file, I would have a heck of a problem.
That’s where I got these documents

This wasn’t a secret. I mean everybody was involved in this process. This is an
unusual situation.

JUDGE WEST: I’ll take it subject to connection. [Transcript pages 96 – 103]

….

JUDGE WEST: Is there going to be any testimony that the Executive Board
members specifically considered these documents on December 16, 2002?

MR. FLAXMAN: Yes. There’s going to be testimony that they considered the
personnel file of Mr. Alexander; that they knew about it. This was not a secret.
Everybody knew about this. This was not a secret.

JUDGE WEST: Is there going to be testimony that any Executive Board member
reviewed the letters that we are discussing now - -

MR. FLAXMAN: I cannot - -

JUDGE WEST: - - on December 16, 2002?

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MR. FLAXMAN: I can’t - - I can say they knew about it. Whether they reviewed it
on that date, it was in their mind. They knew about it, but whether or not they reviewed it
that date, I can’t tell you that - -

JUDGE WEST: Okay. Now - -

MR. FLAXMAN: - - in all fairness.

JUDGE WEST: - - with respect to the statement that it was in their minds, in
other words at some point you are going to be introducing testimony, or eliciting
testimony that the Executive Board members - - actually it might not have been on
December 16, but sometime either on December 16 or before December 16, those
Executive Board members read the letters that you are eliciting testimony with respect to
now?

MR. FLAXMAN: Read them or knew that they - -

JUDGE WEST: No, read them, not knew.

MR. FLAXMAN: Judge, I can tell you that they knew about the letters, they knew
about the threats. That’s all I can tell you.

Whether they read them, I don’t know. Whether they scanned them, I can’t tell
you. All I know is that that was part of their decision making process, in the sense that
they knew about it. Just as if I knew about something about an employee, and it goes to
that person’s ability to perform a job, I may not have read every word, but if I know about
something, I know about it.

And this is the actual letter itself. Rather than say, well, I knew that he had tried
to sue Mr. Healey, this is the letter, this is the document that supports a statement of
someone saying, you know, I knew about what Mr. Alexander was doing.

I knew about the tips. I knew about the fact that he was threatening an Employer.
I mean I don’t know what can be worse than threatening an Employer for a Union
member, whether it’s a suit or not a suit.

I mean it certainly - - he has a right to do it legally, there’s no question about it,
but we do have procedures and guidelines within he Union, which basically indicate what
you do.

You file a grievance if you have a problem, you don’t threaten to sue an
Employer. You know.

JUDGE WEST: The objection’s overruled subject to connection. [Transcript
pages 112 – 114]

….

MS. VALENZUELA: I object, your Honor. Again, irrelevant, no connection has
been made.

MR. FLAXMAN: Your Honor, I’ll tie it up. I have the documents, which I’m going

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to introduce with Lester Alexander’s personnel file, which everybody knew about. It was
part of the decision making process. [Emphasis added]

MS. VALENZUELA: Again, that hasn’t been established.

MR. FLAXMAN: I will establish it.

JUDGE WEST: Subject to connection. [Transcript page 134]

Stephen Healey, who is the Senior Superintendent for Eller, was called by the
Respondent and he testified that Eller is a stevedoring and ship agency in Port Everglades,
Florida; that about 95 percent of cruise ships use stevedores at Port Everglades; and that his
company is part of the SFPEA, which has a collective bargaining agreement, General Counsel’s
Exhibit 9, with various Locals of the ILA, including the involved Local, which agreement contains
the following:

18. (B) Any person soliciting gratuities as a Porter shall be brought before the Joint
Labor Relations Committee for discipline.

18. (B) (1) The parties recognize the critical importance of the passenger trade industry
and the necessity of treating passengers properly and fairly. Accordingly, if an employee
attempts to coerce tips from passengers, or maliciously damages their baggage or
possessions, or otherwise improperly mistreats passengers, such employee shall be
subject to disciplinary action.

Such disciplinary action shall be progressive in nature and may include suspension from
working on passenger ships and for repeat offenders more stringent disciplinary action
up until and including discharge.

Healy further testified that a cruise line can use another company if it is not happy with Eller’s
services; that on September 9 or 10, 2001 he was informed by his superintendent that there had
been some sort of an altercation between Alexander and a passenger on the Grand Princess;
that it involved the solicitation of a monetary tip for handling the baggage; and that he forwarded
a letter to the Union dated September 10, 2001, Respondent’s Exhibit 7, which reads as follows:

On September 9, 2001 Lester Alexander was employed as a porter by Eller and
Company and was working at the MW Grand Princess. There was a documented
incident between Lester and passengers involving tip solicitation. As you are aware,
Eller does not permit tip solicitation. The passengers wrote a letter detailing the incident
and Princess Cruises management will follow that up with their own letter demanding
that Lester be prohibited from working on their ships.

As a result of Mr. Alexander’s behavior and at the request of Princess Cruises, Eller and
Company will no longer employ Mr. Alexander as a porter on any cruise vessel. Thank
you for your attention to this matter as it is of prime importance to our profession.

Attached to Healey’s letter is a one page handwritten note about an incident. It is dated “9/9/01”
with “Dave Roberts, Grand Princess, RME 718” written at the top. The body of the note reads as
follows:

We dropped four bags off with the porters on the front curb.

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The guy we dropped it off with mentioned to my wife that $2.00 per bag is customary. I
asked if I should pay now or later [and] he said now since we may not be there when he
gets there.

3 of our 4 bags showed up outside of our room about 1 ½ hours after we dropped them
off.

We went back to where we dropped them off and a different porter confided in me that
sometimes bags get separated and later a ‘happy porter’ will deliver it looking for an
extra tip.

Missing bag is an American Tourister.

By letter dated October 10, 2001, Respondent’s Exhibit 9, Alexander advised Healey as
follows:

RE: DEFAMATION OF CHARACTER, LIBEL, SLANDER AND NEGLIGENCE

Dear Mr. Healey:

This is a response and Formal Demand for a public apology and retraction of your letter
dated September 10, 2001, regarding your negligent, libelous accusations and
statements in that letter … stating that I solicited tips from a passenger, Mr. Dave
Roberts, that I am terminated from Princess Cruises and Eller and Company, Inc., based
upon documented evidence.

By exposing your letter to, inter alia, Mr. Ellis Hill, President of the Local ILA 1526, a third
party, you have damaged my character and reputation within Mr. Hill and the entirety of
the Local ILA 1526 of which I hold office. The accusations in your letter are the
proximate cause of, and have become common knowledge to my co-workers,
subordinates, supervisors, and peers.

If indeed you have proof of the libelous statements you made in your letter, now is your
opportunity to support those statements, as the truth is an affirmative defense to libel. I
certainly support your 1st amendment right to speak your mind, but the mistake you
made was notifying third parties in an obvious attempt to defame my character and good
standing in my livelihood and among others around me. Therefore the primary element
for libel to prevail now exists. Moreover, you have informed others of your accusations
and punishment to me verbally evincing the elements for Slander and Defamation of
Character. Furthermore, you have negligently performed your duties in your investigation
of this matter and have taken the word of a person who has no personal knowledge of
the incident alleged. Therefore negligence lies.

Pursuant to the Florida State Statutes this is your opportunity to, within five (5) days of
the date you receive this formal notice, retract and apologize to me, each and every
member of the Local ILA 1526, each and every employee of Princess Cruises and Eller
and Company, Inc., for the defamation of my character, libelous written accusations,
slanderous oral statements, and your negligence in conducting your investigation of this
matter. However, if you feel you have ‘proof’ of your accusations, this is also your
opportunity to produce same.

My intent, Mr. Healey, is to bring an action at law against you and any and all other

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persons, including Eller and Company, Inc., who support your actions for defamation
and your public attack of my character.

You have five (5) days to respond to this notice or be governed by the Doctrine of
Estoppel by Acquiescence. This is the only communication you will receive from me
regarding your opportunity to recant your libelous statements.

Copies of this letter were sent to Princess Cruises, Norman Spencer, who is described as the
President of Eller, and Ellis Hill, the President of Local ILA 1526.

Healey also sponsored Respondent’s Exhibit 8, which is a letter dated January 30 from
Norman Spencer, who is the Senior Vice President of Eller, to Local 1526, which reads as
follows:

I received a call from Mr. Mario Terlizzo, Celebrity Cruises, informing me that for two
weeks in a row a porter whose badge number was 119 has been reported by
passengers for tip solicitation. Mr. Terlizzo has now requested that Mr. Lester Alexander,
who was issued badge number 119, not be employed as a porter at any Celebrity
vessels. I will forward this information to Chuck Maravolo and schedule a grievance
hearing as per the contract. Thank you for your attention to this matter.

On cross-examination Healey testified that he had no personal knowledge of these incidents in
that he was not present when they occurred; that his understanding of the September 9, 2001
incident came from what he was told by Eller’s superintendent who spoke to a representative of
the cruise line; that he believed that badges were issued to the porters after this incident so that
passengers would be able to identify a porter; that Alexander was suggesting that someone else
had caused the problem, and he was attempting to straighten the matter out; and that the note
from the passenger about a second porter trying to help him comports with what Alexander was
stating in his letter.

Charles Maravolo, who is the Secretary-Treasurer for SFEPA and who was called as a
witness by the Respondent, testified that Eller had filed a grievance against Alexander regarding
the solicitation of tips; that a grievance hearing scheduled for February 19, Respondent’s Exhibit
1, at the Port of Miami, Florida was postponed when Alexander was asked to leave the Port
because an issue arose regarding whether Alexander had properly gone through security9; and
that a grievance meeting was held on March 12 and he sent a letter on March 13, Respondent’s
Exhibit 2, to Alexander c/o Local 1526 advising him that the Grievance Committee decided that
(a) he was prohibited from being a porter for Princess Cruise Lines and Celebrity Cruise Lines,
(b) he could work store gangs for these lines, and (c) he could be a porter for all other cruise
lines that do business in Port Everglades. Maravolo also sponsored two other exhibits, namely
Respondent’s Exhibits 3 and 4. Taking the latter first, it is a letter dated July 17, from attorney
Neil Flaxman to attorney Donald Ryce, and it reads as follows:

This office represents International Longshoreman’s Association, Local 1526,
who is pursuing a grievance on behalf of Lester Alexander.

On September 9, 2001, Mr. Alexander was accused of inappropriate conduct
(rudeness and requesting a tip). Also, Mr. Alexander was accused on January 30, 2002
9 The SFEPA notice indicates that Alexander was suspended from portering from all
companies until he appears at the next grievance meeting.

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of requesting tips from unknown passengers.

In March of 2002 a grievance hearing was held before the Grievance Committee
and the Grievance Committee prohibited Mr. Alexander from portering for Princess and
Celebrity Cruise Lines which cruise lines are serviced by your client, Elder and
Company, Inc. out of Fort Lauderdale.

The Collective Bargaining Agreement provides that:

Any person soliciting gratuities as a Porter shall be brought before the Joint
Labor Relations Committee for discipline. [The parties recognize the critical
importance of the passenger trade industry and the necessity of treating
passengers properly and fairly.] Accordingly, if an employee attempts to coerce
tips from passengers, [or maliciously damages their baggage or possessions, or
otherwise improperly mistreats passengers,] such employee shall be subject to
disciplinary action. Such disciplinary action shall be progressive in nature and
may include suspension from working on passenger ships and for repeat
offenders more stringent disciplinary action up until and including discharge.
[Citation omitted]

There is no intent from such provision that the conduct, even if true (Mr. Alexander does
deny the conduct occurred.) would result in a lifetime ban.

More than six months have elapsed since the act complained of and more than
four months have elapsed since the ban related to working with the Princess and
Celebrity Cruise Lines was ordered by the Committee.

Accordingly, as a result of the passage of time and the language of the
applicable provision, Mr. Alexander is requesting the ban be lifted at this time.

Since both parties are represented please consider this the first step in the
grievance process with the grievance being specifically the lack of specificity as to the
length of the ban and the request to lift the ban as a result of the passage of time and
the contract language.

Respondent’s Exhibit 3 is a letter dated August 14 from Maravolo to Flaxman which
reads, as here pertinent, as follows:

I am in receipt of your letter to Mr. Donald T. Ryce dated July 17, 2002, concerning …
[Alexander].

Mr. Lester Alexander may return to work as a porter for all lines in Port Everglades.

Please advise Mr. Alexander that if he comes before the grievance committee for his
behavior/actions towards passengers and is found to be at fault by a Labor Relation
Committee, he could receive more stringent disciplinary action as stated in the Collective
Bargaining Agreement.

On cross-examination Alexander testified that his suspension from being a porter for two
cruise lines was never mentioned to the Local’s Executive Board; that to his knowledge only
Tunnage knew about Respondent’s Exhibit 2 which is the above-described letter dated March
13 prohibiting Alexander from working as a porter at two named cruise lines; that according to

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Respondent’s Exhibit 2, Harold Weldon received a copy; that he discussed his suspension with
members of the Executive Board in 2003 when Tunnage brought it to the Executive Board’s
attention in 2003; that he explained his side when Tunnage made some allegations against him
in 2003; that he did not say anything to the Executive Board about the suspension until after he
was addressed with this in an Executive Board meeting in 2003; that when Tunnage brought up
the suspension at an Executive Board meeting in 2003, the Executive Board members did not
indicate that they already knew about the situation; that if a person is truly soliciting tips he did
not believe that the person is qualified to be a second man; that whether a porter violates the
collective bargaining agreement by soliciting tips would affect that person’s qualifications if that
was a part of the criteria being considered to fill a position; and that he has never solicited tips in
his 23 years of being a longshoreman at Port Everglades. On redirect, Alexander testified that
two grievances were filed against him; that he was the one who tried to solve passenger
Robert’s situation; and that Roberts never pointed him out as the one who asked for tips. On
further cross-examination Alexander testified that he did appear before the committee which
heard the grievances regarding soliciting tips; that he presented his case; and that he was
suspended. Subsequently Alexander testified with respect to the first grievance that he saw
Roberts leave the terminal and approach the porters; that he asked Roberts if he could help
him; that Roberts explained that he had already checked his bags and he was looking for a
cosmetic case for his bride; that he tried to find the cosmetic case for Roberts; that he found out
that Roberts had previously paid another porter two dollars; that a stevedore superintendent
walked over to him and asked him for his badge number; that he showed his badge number to
the stevedore superintendent; that he used his cell phone to call Tunnage, who was Vice
President of the Local at the time, and he told Tunnage that someone had approached Roberts
soliciting a tip; that he called Tunnage after the stevedore superintendent asked him for his
badge number; that he was required by the stevedore superintendent and his header to leave
before his shift actually ended; and that with respect to the second grievance

I told Management when I went in front of the grievance hearing, I had no knowledge of
it. And I swear to God on my father and mother’s grave, I still don’t have no [sic]
knowledge of it.

On further redirect Alexander testified that he learned that a different porter asked Roberts for a
tip because it was in Roberts’ complaint; and that the issue that he was referring to regarding
Bynes could have been considered pursuant to a provision of the criteria that was never
enforced, namely the drug test.

Before Harold Walden testified, Alexander testified that the tip solicitation issue was not
discussed by the Executive Board members at the December 16 Executive Board meeting
when the vote was taken on the second man position that Alexander sought. As Alexander
testified, President Tunnage and Vice President Harold Walden knew about this matter. But
Alexander testified that the Executive Board members were first told by Tunnage about the
grievance against Alexander for tip solicitation in 2003, which obviously would have been after
the December 16, 2002 vote. As noted above, Respondent’s attorney knew that the minutes of
the December 16 meeting did not demonstrate that there was any discussion of the tip
solicitation issue. In light of this, what evidence does the Respondent’s attorney elicit or
introduce to demonstrate that the tip solicitation issue was discussed and considered by
Executive Board members on December 16 when they voted on whether Alexander should
receive a second man position? As noted above, audio recordings are made of the meetings.
Contrary to his many assurances specifically described above, Respondent’s attorney did not
make the connection. In his attempt to demonstrate a connection, Respondent’s attorney called
only one witness, Harold Walden, who is the cousin of Bynes. Harold Walden testified on direct,
as here pertinent, as follows:

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Q. At the Union hall is there a file marked Lester Alexander?

A. Yes.

Q. And in that file were there documents contained, which dealt with the suspension of
Lester Alexander as a porter?

A. Yes.

Q. Let me show you what we have previously introduced in evidence, … Respondent’s
Exhibit[s] [1, 2, 3, ,4 ,] 7 [,8, and 9].

[Are they] … maintained in the file of Lester Alexander?

….

A. Yes.

Q. Okay, sir. And - -

MR. WALTON: Your Honor, I object to that series of questions [identifying the
above-described Respondent’s Exhibits] because of lack of relevance.

MR. FLAXMAN: I’m trying to tie these documents into what people knew or didn’t
know.

JUDGE WEST: The objection’s overruled.

Q. BY MR. FLAXMAN: And, in fact, did I not receive these documents from you, Mr.
Walden?

A. Yes.

Q. And you were fully aware of the suspension and the facts surrounding these
documents, correct?

A. Yes.

Q. And to your knowledge, who else knew about Lester Alexander’s suspension as a
porter?

A. I would day the president; the financial secretary; most likely the office secretary,
because everything comes through there; she probably reads it; the Executive Board.
And I would say Mr. Alexander himself.

JUDGE WEST: Sorry for interrupting. Sir.

THE WITNESS: Yes.

JUDGE WEST: You just testified most likely the office secretary because
everything goes through.

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The question was, to your knowledge.

THE WITNESS: To my knowledge, the president, the financial secretary, Mr.
Lester Alexander, myself, and the Executive Board.

Q. BY MR. FLAXMAN: Why is it that they would have knowledge of something like this?

A. Because we would discuss something of that nature at Executive Board meetings.

JUDGE WEST: I’m sorry. Sir, again, you testified ‘we’ would discuss. The
question is why?

Did you discuss, in fact, and when?

THE WITNESS: I don’t have the exact date. If whatever date that letter is
addressed we discuss it in a meeting that was following that particular letter.

JUDGE WEST: Which letter are you referring to now?

THE WITNESS: Any letter that was sent, we discussed it in the prior meeting.

Q. BY MR. FLAXMAN: You mean the subsequent meeting?

A. Pardon me?

Q. The later meeting?

A. The later meeting. The next meeting we would discuss issues concerning - - any
issues concerning that was brought up.

Q. Why would you do that?

A. Because that’s the purpose of our meeting, to maintain a good run Local and address
issues that come about.

Q. How important to the Local was tip solicitation?

A. That’s one of our - - one of our top priorities there. One of our [sic] most complaints
we get are concerns based on the cruise industry is the badgering of passengers for
tips.

JUDGE WEST: I’m sorry for interrupting.

On that point, so we’ve got it at one place in the record, you just testified that this
type of a situation is very, very important to the Local, and you testified that any of these
letters would have been discussed at subsequent Executive Board meetings, is that
correct?

THE WITNESS: Correct.

JUDGE WEST: Are you in a position to cite any minutes of any Executive Board

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meeting following these letters, which would indicate that, in fact, they were discussed,
and since they were so very important, they were included in the written minutes of the
meetings?

THE WITNESS: No, I don’t - - I can’t recall. It would be recorded in the minutes
itself because like I say, Mr. Alexander writes the minutes and he may have not felt that
was important enough for him to include those in the minutes.

We had numerous discussions with him about omitting certain things out of the
minutes.

JUDGE WEST: Okay. But you felt that - - you just testified that these are
important issues; this is an important issue?

THE WITNESS: Correct.

JUDGE WEST: Did you attend all of the Executive Board meetings?

THE WITNESS: Yes.

JUDGE WEST: At the subsequent Executive Board meetings did Mr. Alexander
read the minutes from the prior Executive Board meeting?

THE WITNESS: Not always. He wouldn’t attend all meetings.

JUDGE WEST: At some point did he read the minutes from prior Executive
Board meetings?

THE WITNESS: I would say yes.

JUDGE WEST: Were you present when he read the minutes from the prior
Executive Board meetings?

THE WITNESS: Yes.

JUDGE WEST: At that time, did you point out that there was a shortcoming in the
minutes … [in] that they didn’t cover the prior discussions of these letters, which were
very, very important because they went to tips solicitation?

THE WITNESS: No. At one point something like that - - something else that he
would put in the minutes that was incorrect, I would point that out to him, but if he didn’t
put something in there he would always say he didn’t feel that was relevant enough to
put in there.

JUDGE WEST: Okay. And at that point couldn’t you indicate to him that you
believed that it was important and, therefore, it should be included. [A]nd wouldn’t the
minutes be amended?

THE WITNESS: Yes I could have done that.

JUDGE WEST: And did you, at any point, do that?

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THE WITNESS: No.

JUDGE WEST: Proceed.

Q. BY MR. FLAXMAN: The minutes appear to be two and three pages.

How long were these meetings?

A. Sometimes the meetings would last two and three hours.

Q. So the minutes are not a verbatim transcript of what occurs?

A. No.

Q. Did anyone other than Mr. Alexander prepare the minutes in the last several years?

A. No.

Q. The meeting of December 16, 2002 is only one page. Do you recall how long that
meeting took, more or less?

A. Normally it has the opening and closing time on there.

Q. It doesn’t say. 1:00 p.m. Let’s take a look. It just says it started at 1:00 p.m. It doesn’t
say when it closed.

Okay. The meeting of September 3, 2002 does say starts at 5:30 p.m., closes at
9:25 p.m.

Is that unusual to have a meeting that long?

A. On occasions we have meetings that long if we have a - - we may have a trial or
something and it may take longer.

Q. So there are times on this, but there’s no time stated on this particular minute.

Do you recall what was said about Mr. Alexander at that meeting, as far as him
not being qualified or anything of that nature, in the meeting of December 16 when the
second man was chosen?

A. Do I recall - - what was the question again?

Q. Do you recall what was said in relation to Mr. Alexander and his qualifications for
second man after the December 16, 2002 meeting? [Emphasis added]

A. Based on my recollection, I would say for someone being chosen as a porter header,
and to have so many complaints against you regarding badgering of passengers for tips,
that was one of the complaints we had against him. [Emphasis added]

JUDGE WEST: Sorry. For the record you just testified that someone being
chosen as a porter header?

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THE WITNESS: Yes. That was the position that was open. I mean second man.
I’m sorry.

JUDGE WEST: Okay.

Q. BY MR. FLAXMAN: So there was a conversation about the complaints against him,
as far as you recall?

A. Yes.

Q. And do you recall specifically what was said, or what his response was?

A. No, I can’t recall directly what his response was.

Q. In your vote, did Mr. Alexander’s employment record play a part in your
determination?

A. Yes, for that particular position it did. But as far as his working ability on - - he’s a
good worker and if another position came up in a cargo gang, I wouldn’t have a problem
with selecting Mr. Alexander, because he is a good worker.

But as far as he has a history of badgering passengers for tips for some reason -
- I didn’t write those letters. The letters came from the company and they come from
passengers themselves. [Only one letter from a passenger was introduced into evidence
and as noted above, it refers to two porters, one of whom tried to help the passenger.]

Q. All right, sir.

A. It’s not like someone was singling him out.

MR. FLAXMAN: Okay, I have no further questions. [Transcript pages 192 – 201]

The above-described testimony of this one witness constitutes the Respondent’s
attorney’s attempt to connect certain testimony and the documents he introduced into evidence,
subject to connection, regarding tip solicitations with a discussion and consideration thereof by
the Executive Board at the December 16 Executive Board meeting when it voted on whether
Alexander should receive a second man position. As noted above, this one witness was asked
by Flaxman if he “recall[ed] what was said in relation to Mr. Alexander and his qualifications for
second man after the December 16, 2002 meeting.” (emphasis added) According to the
transcript, Flaxman did not ask this one witness what was said specifically with respect to the tip
solicitation allegation involving Alexander at the December 16, 2002 meeting. Flaxman did not
make the connection.

As here pertinent, Harold Walden testified on cross-examination as follows:

Q. BY MS. VALENZUELA: Mr. [Harold] Walden, you had testified that at the December
16 meeting, Lester’s previous complaints that Lester had received were discussed,
correct?

A. The previous complaint was discussed. I’m quite sure it was, yes.

JUDGE WEST: Complaint, single, as opposed to complaints, plural?

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THE WITNESS: All the complaints you’re saying or - -

Q. BY MS. VALENZUELA: I’m asking you.

A. We discussed complaints at meetings, yes. So whatever was on that agenda, or
whatever information we had got with - -

JUDGE WEST: It’s limited to December 16, 2002.

THE WITNESS: Well, I can’t recall exactly what was discussed December 16,
because I don’t know which letter you’re talking about right off the top of my head.

Q. BY MS. VALENZUELA: At the December 16, 2002 meeting, did anyone discuss
complaints against Lester Alexander?

A. We discussed complaints. If it was a complaint out there, I’m quite sure we discussed
it.

Q. Okay.

JUDGE WEST: I’m sorry. For the record, if there’s a complaint out there, out
there to me means that its something that’s recent.

Is that what you’re - -

THE WITNESS: Correct. If we had received - -

JUDGE WEST: Let me finish my question, please.

THE WITNESS: Go ahead.

JUDGE WEST: In other words, if you discussed at the December 16, 2002
Executive Board meeting any complaints against Lester Alexander, they were recent
complaints?

THE WITNESS: It was within the time period of one meeting to the next meeting.
If I were to see something in between here concerning Lester Alexander, we discussed
it, yes.

JUDGE WEST: When was the prior Executive Board meeting?

THE WITNESS: We have it the first Monday of every month.

JUDGE WEST: Proceed.

Q. BY MS. VALENZUELA: Do you recall receiving something in between those two
meetings concerning complaints against Lester Alexander?

A. I can’t recall. If you have the documents in front of you, if it’s dated between there, I
received it.

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Q. Do you recall discussing any complaints against Lester Alexander at the December
16, 2002 meeting?

A. Like I said, ma’am, if it was a letter sent out between one meeting to the next, if I
received a letter, I’m quite sure we discussed the issues.

….

THE WITNESS: Well, if that was the meeting that was when the election took
place [December 16, 2002], I’m quite sure we discussed all the past history, if that’s
what you’re referring to.

If that was the particular meeting, that the second man position was selected. I’m
quite sure other issues were discussed …. that didn’t occur within that timeframe, if
that’s the meeting but I can’t recall right off the top of my head is this December meeting
you’re talking about is the meeting that the second man was selected.

JUDGE WEST: The December 16, 2002 meeting is the meeting at which the
second man was selected. Okay?

….

JUDGE WEST: who, if anyone, made a statement about any complaint regarding
Mr. Alexander at the December 16, 2002 Executive Board meeting?

THE WITNESS: Well, I know I did for one.

JUDGE WEST: What did you say?

….

THE WITNESS: Thank you. Basically, I would say someone with so many - - the
background he has had searching for a position of that nature wouldn’t be qualified for
that job. [Emphasis added]

JUDGE WEST: Have you finished your answer?

THE WITNESS: If you want a word-for-word - - and basically it was someone, by
him being on the Executive Board, it was really - - made the Executive Board look bad
for him to be accused of something of that nature and sits on the Executive Board also.

That was another blow to the Executive Board. Not only did it make him look bad,
it made the surrounding Executive Board members look bad also, because we’re
supposed to be the ones setting an example for the rest of the membership to follow.

JUDGE WEST: Okay. So you said that also then on December 16.

THE WITNESS: Yes.

….

JUDGE WEST: If the Local received some kind of correspondence indicating

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what the final disposition [of the grievances against Alexander] was in March 2002, then
at the next Executive Board meeting, you brought that up, is that correct?

THE WITNESS: Yes.

JUDGE WEST: So that would be in the minutes of that Executive Board
meeting?

THE WITNESS: Well, like I said, I don’t write the minutes, sir. Mr. Alexander
write[s] the minutes and I’m quite sure he wouldn’t have included that in there. So - -

JUDGE WEST: Proceed.

Q. BY MS. VALENZUELA: You didn’t tell Mr. Alexander to include that information in the
minutes, did you?

A. No, I didn’t.

Q. You have stated what you said at the December 16, 2002 meeting concerning
complaints against Lester.

Do you recall anybody else at the meeting saying anything concerning
complaints against Lester, or grievances concerning Lester?

A. It was discussed, yes.

Q. Who said what?

A. I don’t know who said what, but it was discussed.

Q. And Lester Alexander reads all of the minutes of the Executive Board meeting to the
Executive Board, correct?

A. Yes. [Transcript pages 201 to 214]

….

Q. BY MR. WALTON: Did you discuss that [The above described March 13, letter,
Respondent’s Exhibit 2, which prohibited Alexander from working as a porter for
Princess Cruise Lines and Celebrity Cruise Lines], or bring it up in the meeting of April 2,
2002?

A. Yes.

Q. Show us in those minutes where it is discussed?

A. If its not in there , sir, I didn’t write those minutes. We discussed it. He [Alexander]
doesn’t write word-for-word what we discuss, sir. If we did that we would hire a Court
Reporter to do that, or someone who can type - -

As noted above, excluding Alexander, there were six other Executive Board members
and also Tunnage who were present at the December 16 Executive Board meeting. Other than

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Harold Walden, who is Bynes cousin, the Respondent’s attorney did not call any of them to
testify about what was discussed and considered at this meeting. As noted above, Harold
Walden did not testify on direct about what was discussed and considered regarding
Alexander’s qualifications on December 16. Rather, Harold Walden testified about what was
discussed after December 16. See transcript pages 199 and 200. Alexander concedes that the
tip situation was brought up by Tunnage to the Executive Board members in 2003. Tunnage did
not testify to deny this. A discussion which occurred in 2003 does not connect the tip solicitation
evidence to December 16, 2002. Also, as indicated above, it appears that there are audio
recordings of the meetings. No attempt was made to introduce any recordings and/or
transcripts, and if for some explainable reason recordings do not exist for the meetings in
question, this was not brought out at the trial herein. Tunnage was not called by the Respondent
so he does not refute any matter other than those bought out when he was called by Counsel
for General Counsel. It has been shown that only one of the Executive Board members who
voted on Alexander for a second men position on December 16, Harold Walden, knew about his
five month suspension from serving as a porter on two cruise lines. There is no proof that any
other Executive Board member who voted on December 16 knew anything about Alexander’s
suspension let alone discussed it or considered it on December 16. Indeed as noted above,
Tunnage did not testify to deny that he told the Executive Board members about the suspension
in 2003, well after the December 16 vote, and possibly after the charge and amended charge
were filed in this proceeding. Alexander’s testimony on this point is credited. The fact that
Executive Board members were told about the suspension in 2003 also undermines any
assertion that the Executive Board members discussed the suspension at the December 16
Executive Board meeting. Tunnage was at the December 16 Executive Board meeting. If he
heard Executive Board members discussing the tip solicitation issue on December 16, 2002,
Tunnage would not have needed to tell the Executive Board members in 2003.10 Harold Walden
is not a credible witness. I would not credit any of his testimony unless it is corroborated by a
credible witness or a reliable document. Respondent’s attorney never made the connection he
promised. In these circumstances, if the tip solicitation issue was not discussed or considered
by the Executive Board members at the December 16 meeting before the vote was taken,
Respondent’s Exhibits 1, 2, 3, 4, 7, 8, and 9 are not relevant. As noted above, Respondent’s
attorney indicated that if he could not make the connection, the involved matter could be
stricken from the record. Since he did not make the connection, the objections of Counsel for
General Counsel and the Charging Party are sustained and Respondent’s Exhibits 1, 2, 3, 4, 7,
8, and 9 are hereby stricken from the record. Additionally the irrelevant testimony of Healey and
Maravolo is stricken from the record.

Analysis

Paragraph 6 of the complaint alleges that the Respondent (1) violated Section 8(b)(1)(A)
of the Act since on or about November 8 (a) by maintaining and using unlawful subjective
criteria in selecting and appointing employees to the position of second man, including (i) good
moral character with membership, (ii) loyal and dedicated to the long shore craft, and (iii) be a

10 The Respondent’s argument on brief that Alexander’s suspension might have been
discussed on December 16 after the vote and after Alexander left the meeting is grasping at
straws. Obviously if it was not discussed before the vote, it was not part of a collective
discussion and consideration in the voting process. There is no credible evidence of record that
the suspension was ever discussed at the December 16 Executive Board meeting. Bynes
testified that he has never been reprimanded by any employer, or disciplined by the Union, or
any employer. There is no evidence of record that this was discussed and consideration at the
December 16 Executive Board meeting before the involved second man position was voted on.

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member in good standing, and (b) by maintaining and using unlawful subjective voting
requirements by giving sole discretion to the Executive Board in selecting and appointing
employees to the position of second man. Counsel for General Counsel on brief contends that
case law clearly states that referrals made pursuant to an exclusive hiring or referral hall
arrangement must be based on objective criteria applied in a nondiscriminatory manner, Iron
Workers Local 505 (Snelson – Anvil), 275 NLRB 113 (1985) and Plumbers Local 619 (Betchel
Corp.), 268 NLRB 766 (1984); that with respect to John P. Walden becoming a second man,
Tunnage stated that he had made it official that John P. Walden was already a second man, but
nonetheless asked the Executive Board to formally vote on it which demonstrates that the
Respondent’s determinations are individually and subjectively based, and the Executive Board
just goes along with whatever President Tunnage wants; and that John P. Walden automatically
stepped into a vacant header position. The Respondent on brief argues that a union may bar
applicants from its referral system based on legitimate business considerations and absent
proof of a statutorily proscribed objective; and that while it is recognized that in the context of
encouraging union membership a referral system that relies on purely subjective criteria without
any objective criteria itself violates the Act, Laborers, Local 394, 247 NLRB 97 (1980), here
union membership is not at issue, Alexander has accumulated many more hours of work on an
annual basis than has Bynes, and what is at issue is a promotional status change.

The Respondent operates an exclusive hiring hall and longshoremen get referred to jobs
by going to the Union hall. Allegedly three of its criteria for selecting second men are unlawfully
subjective, namely (i) good moral character with membership, (ii) loyal and dedicated to the long
shore craft, and (iii) be a member in good standing. Before General Counsel’s Exhibits 12 and
13, which give the criteria, were introduced, the Respondent’s attorney gave the following
responses on the record:

JUDGE WEST: So there is a document indicating that certain criteria are to be
considered in determining whether someone should be chosen for the second man
position?

MR. FLAXMAN: Yes.

….

JUDGE WEST: Do these criteria indicate what weight is to be accorded to - -

MR. FLAXMAN: There is no - - no, there is no number. There’s no one to ten, no
evaluation in that area, just one of the criteria.

JUDGE WEST: Okay. So someone might have, for the sake of argument, five,
ten years more seniority than the other candidate … and this allegation, with respect to
the solicitation of tips, might outweigh that five or ten years of seniority in the mind… of
an Executive Board member?

MR. FLAXMAN: Depending on the nature of the gravamen, the stevedore who’s
doing it, what the outcome was of the allegation, if so - - to answer your question,
numerous factors would be considered.

….

JUDGE WEST: Although the criteria, under which this allegation was allegedly
considered, the criterion was one of a number of criteria which does appear in print,

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there’s no balancing test in writing?

MR. FLAXMAN: There’s no balancing test in writing.

….

MR. FLAXMAN: And, your Honor, we have stipulated that the criteria related to
Union membership is unlawful, and we have voluntarily deleted that from consideration.

….

JUDGE WEST: I realize that it undoubtedly will be cleared up when we receive
the written criteria, but I note in looking at the Complaint, vis-à-vis the answer, the
Complaint refers to good moral character with membership. Page 2 of the answer just
refers to good moral character.

MR. FLAXMAN: I don’t think we have a right with membership.

JUDGE WEST: Okay. My question would be, I’m not really sure I understand
what good moral character with membership, vis-à-vis outside membership, really
means.

MR. FLAXMAN: I don’t either. I think that with membership should not be a
criteria.

….

MR. FLAXMAN: The intent may have been with being a member. [Transcript
pages 20 – 22]

And after General Counsel’s Exhibits 12 and 13 were received but before Harold Walden
testified, the Respondent’s attorney gave the following responses:

JUDGE WEST: Mr. Flaxman, I have a question for you.

….

JUDGE WEST: We, you and I, discussed earlier the different language used in
both the Complaint and the answer. The one criterion I pointed out was the first cited in
the Complaint, good moral character with membership. ….

What exactly, in your opinion, is good moral character with membership?

….

JUDGE WEST: I’m focusing on ‘with membership.’

MR. FLAXMAN: That’s a violation. In other words, I don’t know what it means. It
doesn’t make sense, with membership. [Emphasis added]

The way I’m interpreting it to mean with Union membership. In other words,
unless it means - -

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….

… Unless it means with membership. In other words, among the members, perhaps. I
just don’t know. With membership may have a connotation somehow that you have to be
a member.

JUDGE WEST: Okay. That’s your feeling about this.

MR. FLAXMAN: Yeah. That somehow it has a nexus.

JUDGE WEST: All right. So then it would be, as far as the criteria are concerned,
it would be a dual approach. In (i) they’re saying the person had to be a member. And in
(iii) the person has to be a member in good standing. In other words, pay
their dues, etc.

Is that - -

MR. FLAXMAN: That’s out. I mean we’ve agreed that that’s - -

JUDGE WEST: All right, Now as far as reading what existed in December of
2002 - -

….

JUDGE WEST: - - December 16th, you had good moral character with
membership, and then you also had be a member in good standing.

MR. FLAXMAN: Right.

JUDGE WEST: So in other words, are they saying that the person had to be a
member in (i) that one criterion - -

MR. FLAXMAN: Well, I think - -

JUDGE WEST: - - and then in another criterion they said has to be a member in
good standing?

MR. FLAXMAN: Yeah, I think what they’re saying is good moral character with
the membership. In other words, among the membership, you are considered as a good
- - you have a good moral character. It should say among the membership.

In other words, it’s bad wording. Grammatically, it should - - I think their intent
was among the membership. The membership believes this is a person of good
character.

Now that, I think would violate the Act because that may disadvantage a non-
member. How is he going to get the same respect as a member? [Emphasis added]

JUDGE WEST: And if your interpretation is correct, good moral character among
the membership. In other words, the membership believes you to have good moral
character?

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Is that your interpretation?

MR. FLAXMAN: Yeah, I think that’s my interpretation. I don’t think that’s a lawful
criterion. [Emphasis added]

….

MR. FLAXMAN: I think it should say - - I think good - - in my answer [to the
complaint] I say good moral character [As noted above, the answer does not include the
words ‘with membership’ which words are included in the criterion and in the complaint.]
is a, in my opinion, a lawful criteria.

JUDGE WEST: Okay. But when you, again focusing on with membership - -

….

JUDGE WEST: - - is that supposed to mean that the membership has some input
with respect to whether … [the candidate has] good moral character?

MR. FLAXMAN: To a certain extent; in other words among the membership. In
other words, does the membership view you as having good moral character, so yes.

JUDGE WEST: So in order to fulfill the dictates of that criterion, would it be
necessary to canvass, to issue a questionnaire to [the] membership as to whether they
believed … [the candidate has] good moral character?

MR. FLAXMAN: Not necessarily. I’m involved with another Local that has - - we
have three or four people that are constantly accused of sexual harassment. I don’t think
that you - - I don’t think you would have - - I think it would be your general reputation
among the membership.

I mean I don’t think - - but I’m saying that we - - I think good moral character
should end there. I don’t think among the membership because that may disadvantage a
non-member.

JUDGE WEST; Could that language mean that you have to have good moral
character in your …. dealings with the other members of the Local?

MR. FLAXMAN: Could be.

JUDGE WEST: Could be that too?

MR. FLAXMAN: Could be that too, but I’ agreeing with the Board on that , that
membership should not be - -

JUDGE WEST: All right. Well, could it also mean that you should have good
moral character with officials of the Local since they too are members?

MR. FLAXMAN: Not really, because in fairness to them, they have said - - in their
own minutes it says it’s Webster’s Dictionary. So they’re looking at a more generic,

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they’re not - - I think you’re going to get a little specific now and that would be patronage.

In other words, well, you know, I don’t think that was their intent. If you look at the
minutes, it says we’re using Webster’s Dictionary, so - -

JUDGE WEST: Do you have General Counsel’s Exhibit 12?

….

JUDGE WEST: We’re looking at the very last page of General Counsel’s Exhibit
12.

MR. FLAXMAN: …. correct, but it [‘and officials of Local 1526’] was scratched
out. I mean it’s not there.

JUDGE WEST: So it was considered at one point.

MR. FLAXMAN: Could have been. Could have been. You know.

….

MR. FLAXMAN: But it wasn’t used.

JUDGE WEST: But if - - well, we don’t really know what the intent was, do we?

MR. FLAXMAN: What did they mean by with membership and officials of Local
1526?

MR. FLAXMAN: Well, they scratched it out. I assume they meant that with the
officials and with the membership you’re supposed to be perceived as a good person.

And somebody probably said, wait a while, that’s - - you know, why don’t we use
Webster’s Dictionary. Let’s see what that definition is generally. You know, they took out
an official thing.

They took it out. Hard to - - you know, you take something out, it means you’re
cognizant that it shouldn’t be in there. [Transcript pages 144 – 151]

The Respondent’s own attorney concedes that two of the three challenged criteria as
they were utilized, as here pertinent, since November 2002 (taking into consideration the 6
months before the original charge was filed) are unlawful.11 With the wording utilized in criteria
(i) and (ii) it is not even clear what they mean on their face. The former is treated above. With
respect to the latter, could it be interpreted to mean loyal and dedicated to President Tunnage,
Vice President Harold Walden, and their ways? Alexander’s testimony that Tunnage and Harold
Weldon drafted these criteria and got the Executive Board to approve them in short order is not
denied.12 Also Alexander’s testimony that the General Counsel of the International told him that
11 As noted above, “[b]e a member in good standing” is no longer utilized.
12 The Respondent’s attorney was not sure what the criteria we discussed actually meant so it
is not hard to understand how Alexander, who is a longshoreman, might conclude that basically
the criteria spoke to seniority and qualifications.

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the criteria had to be voted on by the membership is not denied. Tunnage and Harold Walden
demonstrated how they controlled the situation when Tunnage moved John P. Weldon into a
second man position so that he was able to become a header. That is what this is all about.
Harold Walden and Tunnage want to control who eventually becomes a header. It appears that
they only want headers who are loyal and dedicated to them. Harold Walden and Tunnage view
the subjective criteria and the voting approach as their means of accomplishing this. By using
ambiguous and unlawful subjective criteria, and by using the Executive Board to carry out their
wishes, Harold Walden, Tunnage and the Respondent have violated the Act as alleged in
paragraph 6 of the complaint.

Paragraph 7 of the complaint alleges that the Respondent violated Sections 8(b)(1)(A)
and 8(b)(2) of the Act on December 16 by failing to select and appoint Alexander to second
man positions with Hallmark and Eller by using the unlawful subjective criteria and voting
requirements described above, and for arbitrary, capricious and invidious reasons. Counsel for
General Counsel on brief contends that the Respondent unlawfully used its subjective criteria
and voting requirements as well as its animus toward Alexander for ‘dissident activities’ when
failing to select and appoint him to a second man position on December; that at one point
Tunnage told Alexander that he was going to take his union card, kick him out of Local 1526,
and bar him away from the union hall; that Tunnage admitted that Alexander had more seniority
than Bynes and that Alexander was qualified for the porter second man position on December
16; that John P. Walden, who was unilaterally given a second man position by Tunnage and
promoted to header when his header left, should not have remained on the Executive Board let
alone be allowed to vote; that both John P. Walden and his brother Harold Walden are cousins
of Bynes; that animus and nepotism played a role in the appointment of Bynes; that the Board
has held that discrimination in job referrals based on nepotism violates Section 8(b)(1)(A) and
8(b)(2) of the Act, and referrals made without reference to objective criteria or standards are
invalid, Local Union No. 174, Teamsters, 226 NLRB 690 (1976) and Polis Wallcovering Co., 262
NLRB 1336 (1982); that a labor organization violates the Act when it applies arbitrary or
invidious criteria in referring employees to jobs, Operating Engineers Local 406, 262 NLRB 50
(1982) enf’d. 701 F.2d 504 (5th Cir. 1983) and Asbestos Workers Local 80 (West Virginia
Insulators), 270 NLRB 1124 (1984); that a union violates the Act when it refuses to refer a
worker due to dissident union activity or political rivalry, H.H. Robertson Company, 263 NLRB
1344 (1982); that Alexander’s relentless search for equity and compliance with the
Respondent’s own collective bargaining agreement and Constitution led Respondent to harbor
strong animosity towards him; and that this animosity, in addition to the subjective criteria and
voting requirements, led the Respondent to fail to select and appoint Alexander to the second
man position on December 16. The Respondent on brief argues that there is no dispute that
Alexander was an outspoken individual who made complaints about union affairs and admittedly
General Counsel has shown under Avon Roofing & Sheet Metal Co., 312 NLRB 499 (1993)
that there could be an illegal discriminatory motive, but the prima facie case does not end there
because General Counsel must also show that Alexander’s complaints were a motivating factor
in the Respondent’s decision to cause Alexander not to be chosen for the second man position;
that General Counsel must prove that animus was a substantial and motivating factor in
Respondent’s decision to take adverse action, Manno Electric, 321 NLRB 278, 280 at footnote
12 (1996); and that there is no record evidence that Alexander’s complaints about Respondent’s
affairs were discussed at the December 16 meeting.13
13 Certainly with the meeting being recorded and with Alexander taking the minutes, it is not
reasonable to expect that Alexander’s complaints about the Respondent’s affairs would be
openly discussed by Tunnage and the Executive Board before the Executive Board voted on
whether Alexander should become a second man.

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The rule of Wright Line, 251 NLRB 1083 (1980) enf’d. 662 F.2d 899 (1st Cir. 1981) cert.
denied 455 U.S. 989 (1982), approved in Transportation Management Corp., 462 U.S. 393
(1983) has been applied to cases such as the one at hand. Painters Local 277 (Polis
Wallcovering), 271 NLRB 58 (1984). To establish a prima facie case General Counsel must
establish protected activity, the Respondent’s knowledge, animus, and adverse action taken
against the one who engaged in protected activity. General Counsel must establish that the
protected conduct was a motivating factor in the Respondent’s decision. If this is established,
the burden will shift to the Respondent to demonstrate that the same action would have taken
place even in the absence of the protected conduct.

As conceded by the Respondent on brief there is no dispute that Alexander was an
outspoken individual who made complaints about union affairs and admittedly there could be an
illegal discriminatory motive. The Respondent was fully aware of Alexander’s protected conduct.
Tunnage did not deny that he threatened Alexander in response to his September 13 letter. And
Tunnage testified, when called by General Counsel, that Alexander had more seniority than
Bynes, and Alexander was qualified for the second man position. Yet Bynes, who is the cousin
of Executive Board members Harold and his brother John P. Walden, was chosen over
Alexander. A majority of the involved criteria which existed at the time, along with the approach
taken, have been found above to be unlawful. A union cannot discriminate against a member
because he criticizes or opposes union leadership or because of the personal animosity
between the member and the President of the Local. Painters Local 277 (Polis Wallcovering),
supra. The justification asserted by the Respondent is non-existent. It has not been shown that
any Executive Board member who voted on December 16, other than Harold Walden, knew
about the alleged justification. And it has not been shown that the alleged justification was
discussed or considered by the Executive Board on or before December 16. For these reasons ,
along with the reasons given by Counsel for General Counsel, as summarized above, the
Respondent violated the Act as alleged in paragraph 7 of the complaint.

Conclusions of Law

1. Hallmark, Eller, and other employers that are a part of SFEPA are employers engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.

2. The Respondent, International Longshoremen’s Association, Local 1526, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.

3. By since on or about November 8, 2002 (a) maintaining and using unlawful subjective
criteria in selecting and appointing employees to the position of “second man”, including (i) good
moral character with membership, (ii) loyal and dedicated to the long shore craft, and (iii) be a
member in good standing, and (b) maintaining and using unlawful subjective voting
requirements by giving sole discretion to the Executive Board in selecting and appointing
employees to the position of “second man,” the Respondent violated Section 8(b)(1)(A) of the
Act.

4. By on December 16 failing to select and appoint Alexander to second man positions
with Employers Hallmark and Eller by using the unlawful subjective criteria and voting
requirements described above, and for arbitrary, capricious and invidious reasons the
Respondent violated Sections 8(b)(1)(A) and 8(b)(2) of the Act.

5. The above unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.

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Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent having discriminatorily failed to select and appoint Lester Alexander to
a second man position, it must select and appoint Lester Alexander to the second man position
in a porter gang under Header Willie Mann, displacing Ervin Bynes, if necessary, or if that
position no longer exists, to a substantially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed and make Lester Alexander whole for any
loss of earnings and other benefits, computed on a quarterly basis from December 16, 2002 to
date that Lester Alexander is selected and appointed to the second man position on a porter
gang, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended14

ORDER

The Respondent, International Longshoremen’s Association, Local 1526, AFL-CIO, of
Ft. Lauderdale, Florida, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Maintaining and using unlawful subjective criteria in selecting and appointing
employees for second man positions.

(b) Maintaining and using unlawful subjective voting requirements by giving sole
discretion to the Executive Board in selecting and appointing employees to the position of
second man.

(c) Failing to select and appoint Alexander to second man positions with Hallmark and
Eller by using the unlawful subjective criteria and voting requirements described above, and for
arbitrary, capricious and invidious reasons.

(d) In any like or related manner restraining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of the Board’s order, use and maintain lawful objective
criteria and lawful voting requirements in selecting and appointing employees for second man
positions.
14 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.

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(b) Within 14 days from the date of the Board’s order, select and appoint Lester
Alexander to the second man position in a porter gang under Header Willie Mann, displacing
Ervin Bynes, if necessary, or if that position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

(c) Make Lester Alexander whole, plus interest, for any loss of earnings and other
benefits suffered as a result of Respondent’s failure to select and appoint him to the position of
second man under Header Willie Mann on or about December 16, 2002, in the manner set forth
in the remedy section of the decision.

(d) Within 14 days from the date of this Order, remove from its files any reference to its
unlawful failure to select and appoint Alexander to the second man porter gang position under
Header Willie Mann, and within 3 days thereafter notify Lester Alexander in writing that it has
done so and that it will not use the unlawful failure to select and appoint Alexander to the
second man porter gang position under Header Willie Mann against him in any way.

(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all records in the possession of the Union, including an electronic copy of
such records if stored in electronic form, necessary to analyze the amount of backpay due
under the terms of this Order.

(f) Within 14 days after service by the Region, post at its union office and hiring hall in Ft.
Lauderdale, Florida, copies of the attached notice marked “Appendix.”15 Copies of the notice,
on forms provided by the Regional Director for Region 12, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees and members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current and former employees
and members of the Respondent at any time since November 8, 2002.

(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C.

______________________
John H. West
Administrative Law Judge

15 If this Order is enforced by a Judgment of the 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.”

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APPENDIX

NOTICE TO MEMBERS

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board had found that we violated Federal labor law and has
ordered us to post and obey this notice.

WE WILL NOT maintain and use unlawful subjective criteria in selecting and appointing
employees for second man positions.

WE WILL NOT maintain and use unlawful subjective voting requirements by giving sole
discretion to the Executive Board in selecting and appointing employees to the position of
second man.

WE WILL NOT fail to select and appoint you to second man positions by using the unlawful
subjective criteria and voting requirements, and for arbitrary, capricious and invidious reasons.

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 within 14 days from the date of the Board’s order, use and maintain lawful objective
criteria and lawful voting requirements in selecting and appointing employees for second man
positions.

WE WILL within 14 days from the date of the Board’s order, select and appoint Lester
Alexander to the second man position in a porter gang under Header Willie Mann, displacing
Ervin Bynes, if necessary, or if that position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

WE WILL make Lester Alexander whole for any loss of earnings and other benefits suffered as
a result of Respondent’s failure to select and appoint him to the position of second man under
Header Willie Mann on or about December 16, 2002.

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WE WILL within 14 days from the date of the Board’s order, remove from our files any reference
to the unlawful failure to select and appoint Alexander to the second man porter gang position
under Header Willie Mann, and WE WILL within 3 days thereafter notify Lester Alexander in
writing that we have done so and that we will not use our unlawful failure to select and appoint
Alexander to the second man porter gang position under Header Willie Mann against him in any
way.

International Longshoremen’s Association, Local
1526, AFL-CIO
(Labor Organization)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
201 East Kennedy Boulevard, South Trust Plaza, Suite 530, Tampa, FL 33602-5824
(813) 228-2641, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (813) 228-2662.