Longshoremen's Local 1408

National Labor Relations Board - Board Decisions

Sep 22, 1981

258 N.L.R.B. 132 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen's Association, Local
1408, AFL-CIO (Jacksonville Maritime Associ-
ation) and William Lindsey, Jr. Case 12-CB-
2225
September 22, 1981,
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 16, 1981, Administrative Law Judge
Howard I. Grossman issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.1
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, International
Longshoremen's Association, Local 1408, AFL-
CIO, Jacksonville, Florida, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order.
I Member Jenkins would compute interest on Lindsey's backpay in the
manner set forth in partial his dissent in Olympic Medical Corporation. 250
NLRB 146 (1980).
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge:
The original charge was filed on April 24, 1980,' and an
amended charge on May 23 by William Lindsey, Jr.
(herein called Lindsey or the Charging Party). A com-
plaint was issued on May 19 and an amendment to the
complaint on June 9. As amended, the complaint alleges
that International Longshoremen's Association, Local
1408, AFL-CIO (herein called Respondent, Local 1408,
or the Union), has an agreement with Jacksonville Mari-
time Association (herein called JMA), an association of
employers engaged in longshore and stevedoring oper-
ations, and that such agreement has an exclusive hiring
hall provision covering longshoremen and stevedores
employed by employer-members of JMA. The amended
I All dates are in 1980 unless otherwise specified.
complaint further alleges that since on or about April 22
Respondent refused to refer Lindsey for employment
with JMA and its employer-members for reasons uncon-
nected with any failure of Lindsey to pay periodic dues
or initiation fees, in violation of Section 8(b)(1)(A) and
(2) of the National Labor Relations Act (herein called
the Act).
A hearing was opened before a duly designated admin-
istrative law judge on October 2 in Jacksonville, Florida,
and was thereafter postponed prior to receipt of substan-
tive evidence until November 6 for settlement discus-
sions. The hearing was resumed on said date before me,
substituting for the original administrative law judge
with the agreement of the parties.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs by the General Counsel and Respond-
ent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
JMA is a Florida corporation with an office and place
of business in Jacksonville, Florida, and is the collective-
bargaining representative, on a multiemployer basis, of
its various employer-members engaged in longshore and
stevedoring operations in and about the port of Jackson-
ville, Florida. The employer-members of JMA annually
receive revenue in excess of $50,000 from the transporta-
tion of goods and passengers between the State of Flor-
ida and other States and foreign countries. JMA and its
employer-members are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The contract
JMA has had contractual relationships for many years
with Local 1408, covering longshore work, and with the
Union's sister locals-Local 1408-A, covering waterfront
warehouse work, and Local 1593, covering clerks and
checkers work.
The current agreement with the Union provides speci-
fied wages for various job classifications of longshore
work "performed at deepsea waterfront facilities," and
examples of "longshore work" are given. The contract
requires employer contributions funding a "Guaranteed
Annual Income [GAI] Plan . . . to assist those men who
have steadily worked as Longshoremen, Clerks, or
Checkers . . . over the years, and who may in the future
find their work opportunities reduced to the point an
income supplement is needed .... " The agreement es-
tablishes a trust fund and a board of trustees, five from
each party, to administer the plan. "It is the intent of the
Plan to insure that all men who have been employed for
700 or more hours under the Longshore or Clerks and
Checkers Agreement in 1975-76" shall be paid a certain
258 NLRB No. 29
132
LONGSHOREMEN'S LOCAL 1408
minimum income. The trustees are required to establish
procedures for crediting hours to men who lack the re-
quired hours and thus fail to qualify for various reasons.
The parties agree to "institute and maintain joint
Union-Management hiring procedures . . . including ar-
rangement for the dispatching of men and gangs in such
fashion as to assure a minimum liability to the Fund. The
expenses of such personnel are to be borne by the Fund.
Personnel entitled to G.A.I. will receive preference in
hiring over non-G.A.I. covered personnel." The agree-
ment specifies how "employees" and "personnel" shall
be subject to "debiting" and loss of right to a guaranteed
annual income because of misconduct or other actions,
none tied to union membership. The agreement does not
clearly specify the affirmative requirements for GAI
other than employment for a minimum number of hours.
According to Charging Party Lindsey, in order to get
GAI credit, an individual must "badge in" at the hall,
and then, if not referred for employment that day,
"badge out," except on weekends.
The contract further describes the use of "gangs" to
work the ships, and the employer's obligation to consult
with the Union whenever he makes a change in a gang
foreman. The employer, however, reserves the right to
hire and fire, and the agreement contains a management-
rights clause.
2. Operation of the hiring hall
The Union operates a hiring hall to implement this
agreement. Union officials credibly testified that both
union and nonunion applicants for employment are dis-
patched from the hall. According to Business Agent Paul
Fields, Sr., GAI-qualified applicants have priority over
persons not so qualified from Monday through Friday,
but not otherwise. Another preference system utilized in
the hall classifies each applicant according to the number
of years he has worked in the industry, those with the
greatest seniority being in the "A" classification, and
those with less seniority being classified successively
down to the "H" level. According to Fields, GAI-quali-
fled applicants must be hired before application of the se-
niority system, testimony which appears to be in accord
with the contract language.
The hiring itself is completely dependent upon the em-
ployers' need for gangs, and this need in turn is depend-
ent upon the arrival of seagoing vessels. The labor is
thus daily and casual in nature, with no assured continu-
ity of employment, although the agreement does require
each employer to "give preference in employment to the
gangs which work regularly for him." In order to obtain
labor for the following day, the employer must call the
union dispatcher by 5 p.m. the prior day, and give a
"gang order" with the name of the "header" or gang
foreman.
The hiring is done several times a day at the hall,
where as many as 600 men may be gathered together
seeking employment, a process known as the "shape-up."
It is directed by a union official, usually the business
agent. As each job is called, the header selects his gangs,
utilizing the preference systems outlined above. It nor-
mally follows, therefore, that applicants in the A classifi-
cation get opportunities for jobs before those in the
lower classifications, GAI preferences having been satis-
fied, and that this process continues progressively
through the seniority system.
An exception to this, however, is the case where the
employer requests an employee specially certified to op-
erate one or more pieces of heavy equipment utilized in
loading and unloading operations. In such case, for ex-
ample, an F-classified applicant with the necessary certi-
fication has employment rights superior to those of an A-
classified individual who lacks the same expertise. Such
certification, therefore, is an obvious advantage in obtain-
ing employment.
In practical application of this somewhat complex
system, the employer calls in a gang order consisting
normally of about 18 individuals, including; e.g., a 100-
ton crane operator and a gantry crane operator. The
gang order also designates the employer's header. At the
shapeup, the applicants stand in separate sections of the
hall according to their seniority classification. As each
job, i.e., the ship and dock, is called out, those applicants
in classification A who wish assignment to that job raise
their hands, and the header first selects those men whom
he wishes from that classification. He then proceeds
through the seniority system, selecting the crane opera-
tors from the classifications in which they are found. In-
dividuals from higher classifications not chosen by the
header remain for possible selection by the next header,
for the next job.
Although the header thus appears to be operating for
the employer in the selection of the gang, the evidence
shows that he is under the practical control of the Union
whenever the latter wishes to exercise it. As shown
above, the contract requires the employer to consult
with the Union whenever he wishes to make a change in
the gang "foreman"-an apparent reference to the
header, who also controls the actual work. Business
agent Fields constantly referred to his own role as that
of "hiring." "Don't nobody tell me how to hire," he
said. Further, as described hereinafter in the case of
Lindsey, a decision by the Union not to dispatch a par-
ticular individual simply results in his not being selected
by any header. Thus, although the contract gives the em-
ployer the right to hire and fire, in effect it is the Union
that controls the hiring.
There was conflicting evidence on the issue of wheth-
er JMA-employers "must" use the hall in order to obtain
labor. JMA Executive Secretary Vernon McDaniel testi-
fied that in practice JMA was required to give the Union
a first opportunity to provide personnel to fill its needs,
and that the Association sought labor elsewhere only in
those "extremely rare" situations where the Union's man-
power was "totally exhausted." Union President Landon
L. Williams,2 however, said that JMA hires "many other
people"-clerks and checkers, operating engineers, ma-
chinists, ironworkers, welders, electricians, "people from
Handy City," etc. On cross-examination, Williams ac-
knowledged that the individuals hired by JMA other
2 The pleadings establish, and I find, that Williams is an agent of Local
1408 within the meaning of Sec. 2(13) of the Act. He is also president of
Locals 1408-A (waterfront warehouse work) and 1597 (bananas and
green fruit handlers).
133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than through Local 1408's hiring hall do work which is
not covered by the Union's contract with JMA.
3. The training process
The unloading of seagoing vessels has undergone
change in recent years, and new equipment has been in-
troduced. This machinery-various types of cranes,
"container stackers," "roll-on roll-off ramps," etc.-is
large and very expensive, in some cases running into mil-
lions of dollars for one piece of equipment. In order to
facilitate operation of the Jacksonville port, the Florida
State legislature created the Jacksonville Port Authority
(JPA), which owns most of the cargo terminals and
equipment. JPA will permit operation of its specialized
equipment only by individuals whom it has trained and
certified. This requirement is imposed because of the ne-
cessity to protect the equipment and to satisfy insurance
requirements.
From time to time, as the amount of equipment in-
creases or the supply of trained operators decreases, JPA
notifies the Union that it wants trainees for a particular
piece of equipment. These trainees are supplied through
the Union's hiring hall, and are paid by JPA during
training at the same rate as that paid by an employer.
According to Business Agent Fields, once an individual
has started training on a particular piece of equipment,
JPA will request him by name on succeeding days until
he is certified. Unlike the daily casual labor of regular
jobs, therefore, the training process provides a certain
amount of continuity, at least until it is completed.
Fields acknowledged that the Union has no written
rules on supply of trainees to JPA, but that it follows a
certain practice. The problem is not the same as the
normal shapeup, because opportunities for training do
not come with the same regularity as jobs, and are not
desired by all individuals with the same consistency that
they want regular employment. Therefore, according to
Fields, assignment for training depends upon the priority
of an individual's "expression of interest" in same to the
Union, and his availability on the day that JPA actually
calls for trainees. If an F-rated individual gets his name
"on the list" before a higher rated applicant, the former
will get the training opportunity when it arrives, if he is
then available and willing.
B. The Alleged Refusal To Refer Lindsey
1. Training on the straddle carrier
Charging Party Lindsey has been a union member for
about 18 years, and has paid all dues and fees required
for retention of membership. He asserted that he asked
Union President Williams for an opportunity for training
and that Williams agreed. Lindsey was not certain of the
date, but believed that it was in the first quarter of 1980.
Business Agent Fields testified that, during the week
of April 14, JPA requested trainees on a straddle carrier,
a device which straddles a "container" about the size of
a large highway trailer, picks it up, and stacks it three
containers high. There was a large amount of regular
work that day, and, although Fields found one individual
willing to take the training assignment, he had difficulty
getting another. J. T. Holliman, who carried an F classi-
fication, arrived late at the hiring hall. Since Fields could
not get anyone else in classifications A through E, he
asked Holliman, and the latter agreed. Union President
Williams was not present at this time.
Lindsey contends that he spoke to Fields about the
straddle carrier during this week of April 14, but did not
testify that he was present in the hall when the assign-
ment came in. Lindsey held certificates on the 50- and
100-ton cranes, but not on the straddle carrier.
2. The April 21 shapeup-6 a.m.
On Friday, April 18, JPA requested Holliman for con-
tinued training, and one certified straddle carrier opera-
tor. At 6 a.m., the following Monday, April 21,3 business
agent Fields was doing the hiring, although Union Presi-
dent Williams had returned and was on the hiring hall
stage together with Fields and other union officials.
Ernest Hill, the header who obtains trainees for JPA,
picked up the cards of Holliman and Edwin Garner. The
latter, a certified straddle carrier operator with a hiring
hall classification of D, had instructed most of JPA's
trainees on operation of the carrier.
Lindsey observed the assignments of Holliman and
Garner, and concluded that both were going to train on
the carrier. He knew that Holliman had an F classifica-
tion, lower than Lindsey's D rating. According to Lind-
sey, he then went to the platform and had a conversation
with Williams about Holliman's assignment. He did not
talk to Fields because, he asserted, Fields had told him
the day before that Williams had taken the dispatching of
trainees away from Fields. The business agent, on the
other hand, testified that Lindsey first talked to him, and
that he explained to Lindsey that Holliman was already
in training on the straddle carrier, and had been specifi-
cally requested by JPA for renewal of training that day.
Field's testimony on this point is corroborated by Wil-
liams, and I credit it.
Lindsey then had a conversation with Union President
Williams on the stage. According to Williams, Lindsey
accused him of sending people in lower categories for
training, and Williams replied that he had not seen Fields
until that Monday morning, and had not discussed the
prior week's events with him.
According to Williams, Lindsey became "very bellig-
erent" and started cursing him. Williams was "terrified,"
and "ran away from him to the other side of the stage."
The union president further averred that Lindsey "ran
after" him, and that other union officials on the stage
became concerned. Williams left the stage and went to
his office where, he testified, he learned the events of the
prior week from his staff.
Central Peterson, Jr., trustee and dispatcher, testified
that Lindsey "verbally attacked" Williams, came to the
stage, and demanded training that morning. When Wil-
liams replied that he had Lindsey's name on the list, but
that he could not go that morning, Lindsey started curs-
ing, and said that he was "going to solve this shit now."
Fields, who continued hiring after his conversation with
3 There is conflicting evidence as to whether it was April 21 or 22. 1
find that the correct date was April 21, a Monday.
134
LONGSHOREMEN'S LOCAL 1408
Lindsey, thought that the latter asked Williams why a
man in a lower category received the assignment, but
heard no cursing. Blyden L. Geiger, Sr., a dispatcher,
heard Lindsey use "abusive" language and call Williams
"nasty names."
According to Lindsey, he merely asked for straddle
carrier training, and remarked that lower classifications
were getting it. 4 Williams replied that he had a list that
he was "gonna dissolve [sic] just like I see fit." When
Lindsey asked when he was going for training, Williams
said he was not going no damn where now." Lindsey
then walked off the platform.
I conclude that the testimony of Williams and Lindsey
represents opposite extremes, and that Peterson's version
is probably the most accurate account. Accordingly, I
find that Lindsey first asked business agent Fields about
the straddle carrier assignment and received a factual ac-
count. He then went onto the stage and demanded an im-
mediate training assignment. When Williams refused,
Lindsey began cursing, saying that he was going to
"solve this shit right now."
There was testimony from various witnesses to the
effect that such activity tends to interrupt the hiring
process to some extent. What actually happened, howev-
er, is that Fields continued hiring. As a matter of fact, he
did not even hear the cursing. I therefore discount the
testimony on the probable effect of such conduct on the
hiring process, testimony which is speculative and con-
jectural. The only interruption of the hiring process was
minimal at most, consisting of the first, brief conversa-
tion between Fields and Lindsey, in which the latter is
not accused of any impropriety.
3. Second encounter between Lindsey and
Williams-9 a.m.
There was a second encounter between Lindsey and
Williams, at or about 9 a.m., the same day in Williams'
office. Williams returned at that time, and Lindsey was
waiting for him, according to the union president. Lind-
sey temporarily blocked Williams' way and cursed.
When they entered the lobby, Williams asked Lindsey to
stop cursing, and Lindsey said, "I'll kill your ass," ac-
cording to the union president. Williams asked Lindsey
not to enter his private office, but Lindsey did so, as did
other persons including Williams' son.
Vernon McPhadden, Sr., a union member, said that he
saw Lindsey waiting for Williams, and that Lindsey
looked "furious." "I'm gonna get this shit straightened
out this morning," he said, whereupon McPhadden ad-
vised Lindsey not to get into trouble. George A. Spen-
cer, Sr., Local 1408's recording secretary, testified that
he entered Williams' private office after learning about
the matter, and found Lindsey upbraiding the union
president for dispatching Holliman. When Williams
denied that he had done this, Lindsey called him a
"mother f- liar," according to Spencer. The latter
stated that Williams said Lindsey's name was on the list,
but that he could not dispatch him for training that
morning. Lindsey then said that he was going to kill Wil-
4Lindsey said that the date was April 22, a Tuesday, testimony which
I conclude is erroneous.
liams, according to Spencer. Lindsey finally left Wil-
liams' office, after repeated requests.
Lindsey himself acknowledged returning to the hall at
9 a.m. and walking into Williams' office. He said that he
could not remember exactly what was said, but that he
merely repeated the curse words which Williams used. I
credit the composite accounts of Williams, McPhadden,
and Spencer, and find that Lindsey cursed Williams in
his office, refused to leave upon request, and threatened
to kill Williams for allegedly dispatching Holliman.
4. Action by the Union's executive board
Williams reported the matter to the Union's executive
board, which met around noon on the same day, April
21. According to Fields, the board recommended that
Lindsey be required to apologize to Williams, but took
no position on further action if he failed to do so. Peter-
son, however, testified that the board recommended that
Lindsey not be permitted to work until he apologized.
Peterson was corroborated by Spencer, who added that
the board's decision was that Lindsey apologize to Wil-
liams openly, at one of the shapeups, before being per-
mitted to return to work. I credit the accounts of Peter-
son and Spencer, and find that the Union's executive
board recommended that Lindsey not be referred for
work until he publicly apologized to Union President
Williams. Lindsey was not present or represented at the
board meeting.
5. The 6 p.m. shapeup and the refusal to dispatch
Lindsey
Lindsey was back in the hall at 6 p.m., the same day,
and Fields was hiring. Williams was not there. The busi-
ness agent consulted with recording secretary Spencer,
and then made an announcement over the public address
system that Lindsey would not be dispatched for work
until he apologized to Williams. According to Fields,
Lindsey was not referred out at that shapeup. Lindsey
testified that individuals in lower categories, i.e., with
less seniority, were referred for work that evening.
Spencer and Lindsey had a conversation before the
evening shapeup, in which the recording secretary told
Lindsey that he had to apologize, and another conversa-
tion after the meeting. Lindsey then said, "I told you I'm
not gonna apologize to nobody, none of you mother f-
s, and I'm going to work." Spencer testified that he told
Lindsey to "get out his face," or he was "gonna knock
him out." Lindsey said that he called the FBI that night
and reported that Spencer had threatened him, and made
other statements about Williams.
6. The April 22 shapeup and thereafter
Fields made the same announcement at the 6 a.m.
shapeup the next day, April 22. Lindsey was present and
asked for the microphone. He stated that he would
apologize to the Union's financial secretary and to a sec-
retary, but not to Williams. He was not dispatched to a
job that day.
Lindsey testified that he was in the hiring hall for ap-
proximately the next 31-33 days until about June 4, but
that he was not dispatched for work. His GAt "badge-
135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in" slips are in evidence for all weekdays from April 22
through June 4, except for May 26 (indicated on some
calendars as a holiday), a total of 31 slips. As described
above, badge-in slips were not required for Saturdays
and Sundays. Since there were 45 days between April 21
and June 4, inclusive, it is apparent that Lindsey ex-
cluded weekends and holidays in his computation, but
contended that he was present on all other days. It is ob-
vious that his testimony is supported in substance by
documentary evidence consisting of the badge-in slips.
Lindsey testified that he sought employment on those
days, and Fields stated that Lindsey "would have his
hand up, but the headers did not attempt to take his
card."
Union President Williams testified that he was aware
that Lindsey was not being dispatched because of his
failure to apologize, but contended that such practice
was customary in the Union. Finally, according to Wil-
liams, he said to Fields, "This matter has been turned
over for litigation. Until such time as it has been adjudi-
cated, proceed as usual," and Fields replied, "Okay."
The business agent testified that Williams told him to let
Lindsey go back to work and that he complied. The par-
ties stipulated that Lindsey was dispatched for work on
June 4, and Lindsey testified that he had been dispatched
in accordance with customary seniority since that date.
Lindsey testified that persons in classifications lower
than his were dispatched on "every day" during the
period in question.
Fields acknowledged that Lindsey was in the hall on
at least some of the days, but expressed doubt that the
shapeup reached classification D (Lindsey's classifica-
tion) on every day-thus apparently contending that
Lindsey would not have been dispatched on such a day
even if there had been no outstanding dispute with him.
In so testifying, Fields had before him in the hearing
room worksheets showing the number of gangs hired
during the period in question and the job classification
including specialty of each member of the gang. Asked
by Respondent's counsel whether he could determine
from these records which seniority classification was
reached on a particular day, Fields replied, "Just about."
Asked to search those records and indicate a day on
which he did not reach classification D, Fields selected
April 26 because, he said, he only had four gangs on
April 27, a Sunday. (As noted above, Saturdays and Sun-
days are excluded from the number of days that Lindsey
was present.)
Asked to select another such day, Fields picked
Wednesday, April 30, as a day on which he did not
reach the D classification. His reason-Lindsey would
not "pick up coffee," apparently the cargo for the day.
This reason, of course, is a nonsequitur. Lindsey testified
that he had picked up coffee "forever," and the badge-in
slips show that he was in the hiring hall on April 30. His
testimony, that persons with classifications lower than his
were dispatched that day, is uncontradicted.
The Board has recently pointed out that "the burden
of negating the General Counsel's prima facie case of dis-
crimination in hiring referrals falls upon Respondent as
the sole custodian of the hiring hall records. Its failure to
do so creates an adverse inference that such evidence in
its possession is not favorable to Respondent's case." 5
This principle is applicable to the factual issue as to
whether Lindsey's seniority classification was reached on
days that he was present in the hiring hall but was not
dispatched. The records were in the hearing room in Re-
spondent's possession, but were not introduced into evi-
dence. Such testimony as Fields gave, purporting to have
been gleaned from such records, did not contradict Lind-
sey's testimony that persons in lower seniority classifica-
tions were dispatched on every day of the period in
question. I credit Lindsey's testimony.
I find that Lindsey was in the hiring hall and available
for work for 31 days, beginning at the 6 p.m. shapeup on
April 21 (not including the straddle carrier training as-
signment earlier the same day) and continuing every
weekday thereafter except May 26 through June 3. I fur-
ther find that Lindsey tried to get referrals for work on
those days, that work for individuals in Lindsey's senior-
ity classification and lower was available on each such
day, but that Respondent refused to dispatch Lindsey be-
cause of his dispute with Union President Williams over
training assignment referrals.
7. Legal analysis
As noted above, there is conflict between the testimo-
ny of JMA Executive Secretary McDaniel and that of
Union President Williams, the former asserting JMA's
obligation to give the Union first opportunity to provide
all labor, while Williams contends that JMA also hires
individuals such as clerks and checkers, operating engi-
neers, etc. Assuming that there is some truth to Williams'
assertions, this does not militate against a finding that
Respondent operates an exclusive hiring hall, since Wil-
liams conceded that such other persons hired by JMA do
not fall within the Union's longshore work as defined in
the contract.
The Board has already agreed with the conclusion that
another union may supply employees doing work not
claimed by the primary labor organization, and that there
may be other exceptions, without militating against a
finding that the latter union is operating an exclusive
hiring hall or referral system. Local 394, Laborers' Inter-
national Union of North America (Building Contractors As-
sociation of New Jersey), 247 NLRB 97 (1980). At least
some of the other employees hired by JMA according to
Williams, the clerks and checkers, came from Local
1408's sister local, Local 1593, and the operating engi-
neers, machinists, ironworkers, welders, and electri-
cians-as well as any "Handy City people"-if not dis-
patched from other hiring halls, were obviously hired by
JMA with the Union's "tacit, if not expressed consent."
(Id.) I conclude therefore that Respondent in practice
operates an exclusive hiring hall or referral system.
The Board has previously concluded that a Union's re-
fusal to refer an individual, because of his criticism of the
hiring hall and referral system operated by the union,
violates the statute.6 The same conclusion has been
I Seafarers' International Union. Atlantic. Gulf Lakes and Inland Waters
District. AFL-CIO (American Barge Lines), 244 NLRB 641 (1979).
1 Construction and General Laborers' Local No. 1440. etc. (Southern Wis-
consin Contractors Association. Martindale Builders. Inc.). 233 NLRB 1366
Continued
136
LONGSHOREMEN'S LOCAL 1408
reached in cases where the refusal was based on criticism
of union administration, political opposition to a union
official, or dissident activities in general.7 These princi-
ples are applicable to Respondent's refusal to refer Lind-
sey.
Although Respondent's refusal to refer Lindsey to the
straddle carrier assignment on the morning of April 21
was not alleged in the complaint as a separate violation,
the General Counsel argues that it was thoroughly liti-
gated at the hearing, and that the record shows that
training programs were operated by union officials with-
out any rules whatsoever and were divided "into fief-
doms from which they dispensed patronage to advance
their own ambitions."
I do not concur. As described above, training pro-
grams are initiated by the Jacksonville Port Authority to
obtain certified operators of its expensive equipment in
order to satisfy insurance requirements. Although JPA
apparently permits trainees to be selected initially by the
hiring hall procedure, with its emphasis on seniority and
casual, one-time jobs, once a particular individual begins
training, the authority requests that he continue until cer-
tified. This is a quite rational requirement, since sporadic
training of any one individual would not be consistent
with a high level of instruction and expeditious produc-
tion of certified operators. For this reason, however, it is
inconsistent with the principle of seniority applied at the
hiring hall to different jobs coming up on a daily basis
and to the varying job preferences of the individuals in
the hall.
Although Fields is not crystal clear on the subject, a
fair reading of his testimony shows that the Union re-
quired, as a prerequisite to a training assignment, that the
individual request same and get his name "on the list."
Priority on the list apparently took precedence over se-
niority, although this is not entirely clear. In any event,
neither priority on the list nor seniority was sufficient if
the individual was not in the hall on the day that the
training assignment actually came in. On such a day, if
there were no one else in the hall who wanted the as-
signment, any individual could get it whatever his place
on the list or his seniority classification. Otherwise, the
"job" for that day would be lost. This is what happened
on or about April 14, when Fields, needing two trainees
on the straddle carrier but finding only one, sent Holli-
man out because he came into the hall late, after the reg-
ular assignments had been made, and was willing to take
the training assignment. Once having begun, Holliman
acquired rights to continue training superior to those of
other individuals higher on the list or with higher senior-
ity. If a more senior individual could later "bump" a
trainee from an existing program because of his seniority,
the training program would become a shambles. Lind-
sey's complaint to the Union about Holliman's training
assignment was therefore without merit.
(1977); International Brotherhood of Electrical Workers. Local Union 379
(Fassbach Electric Co.), 230 NLRB 626 (1977).
7 Frank Moscali Construction G.CP. Co.. etc., 251 NLRB 219 (1980);
United Brotherhood of Carpenters and Joiners of America. Local No. 19/4
(W d H Conveyor Systems. Inc.). 250 NLRB 1426 (1980): Pipeline Local
No. 38, etc. (Hancock-Northwest. J V). 247 NLRB 1250 (1980).
The General Counsel's arguments against Respondent's
general operation of the training programs, as distin-
guished from the Holliman assignment, are not supported
by sufficient evidence to warrant a finding of a separate
violation. There were objective criteria tailored to JPA's
needs, as the union officials perceived those needs. It
may be that these criteria were not spelled out in writ-
ing, but this fact alone is insufficient to warrant a conclu-
sion that the training programs were administered in an
arbitrary and capricious manner. Local 394, Laborers' In-
ternational Union of North America (Building Contractors
Association of New Jersey), supra at fn. 2. Respondent did
not violate the Act by denying Lindsey the training as-
signment, since this denial was not motivated by personal
and/or intraunion political considerations. Plumbers and
Steamfitters Union, Local 373, etc. (Richard L. Osborn),
228 NLRB 1191, 1197 (1977). Respondent's unlawful
conduct was its discipline of Lindsey thereafter.
Respondent argues that its requirement that Lindsey
apologize before being referred for employment was nec-
essary to make certain that the other persons using the
hall not be deprived of same by threats and abusive lan-
guage. Respondent's action did not "encourage or dis-
courage" membership in a labor organization, since there
was no organizational activity at the time, and Lindsey
already was a union member. The requirement of an
apology in such situations is established union practice.
Conceding that its action "might conceivably have the
remote effect of encouraging Union membership," Re-
spondent contends that its discipline of Lindsey was not
undertaken with any such motive, and, "considering the
circumstances of the parties," did not have such effect.
"It is inconceivable that General Counsel should contend
that the Charging Party should be permitted by threats
or force and violence to take job opportunities away
from other persons, and that the Union should be help-
less to prevent this discrimination."
This argument is based on an inaccurate premise as to
what actually happened at the 6 a.m. shapeup on April
21 and thereafter. As described above, the only interfer-
ence with the hiring process was the first brief conversa-
tion between Lindsey and Fields, with the latter continu-
ing the hiring when Lindsey talked to Williams. It is an
exaggeration to argue, as does Respondent, that such ac-
tivity was an attempt to take job opportunities away
from others by force and violence. It is true that Lindsey
became more abusive during his 9 a.m. encounter with
Williams, but this took place in Williams' office, not in
the hiring hall, and has not been shown to have had any
effect upon the hiring process-except for Respondent's
denial of referrals to Lindsey.
It is significant that Williams' complaint to the execu-
tive board was not made until after the 9 a.m. confronta-
tion with Lindsey, suggesting that it was the latter's
action and language at that time, rather than his earlier
protest in the hiring hall, which sparked union discipline
of him. The fact that the executive board required Lind-
sey to "apologize" to Williams shows that the gravamen
of his offense was his personal attack upon the union
president based on his complaint about the referral of
137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
training assignments rather than interference with the
hiring process.
The fact that Lindsey was wrong about the Holliman
assignment and engaged in the conduct described above
did not give Respondent the right to affect his employ-
ment rights. Respondent had adequate remedies at hand
within its own rules, and, perhaps, in the state courts.
Once, however, it attempted to enforce discipline by
denying employment to Lindsey, it crossed a forbidden
boundary in violation of the Act. "The policy of the Act
is to insulate employees' jobs from their organizational
rights." The Radio Officers' Union of Commercial Telegra-
phers Union, AFL [A. H. Bull Steamship Company] v.
N.L.R.B., 347 U.S. 17, 40 (1954). Respondent did not ob-
serve this mandate. Instead, it denied job referrals to
Lindsey because of his verbal attack upon the union
president and his criticism of hiring hall practices. It is
well established, in part by the authorities cited herein,
that such action is a discriminatory denial of referral for
employment, in violation of Section 8(b)(1)(A) and (2) of
the Act, and I so find. The General Counsel also argues
that Respondent's action was a denial of Lindsey's right
to "fair representation." Because of my foregoing con-
clusion, I find it unnecessary to pass on this contention.
In accordance with my findings above, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. The Jacksonville Maritime Association (JMA) and
its employer-members are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the
National Labor Relations Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent operates an exclusive hiring hall or re-
ferral system whereby it refers applicants for employ-
ment with employer-members of JMA.
4. Beginning around 6 p.m., on April 21, and continu-
ing thereafter for every weekday except May 26 through
June 3 but not thereafter, Respondent Union discrimina-
torily failed and refused to refer William Lindsey, Jr., for
employment with employer-members of JMA, because
Lindsey had criticized Respondent's hiring hall and re-
ferral system practices, and had engaged in a dispute
with Respondent Union's president.
5. By the action described in Conclusions of Law 4,
above, Respondent Union has caused or attempted to
cause employers to discriminate against Lindsey in viola-
tion of Section 8(a)(3) of the Act, and the Union has
thereby engaged in unfair labor practices within the
meaning of Section 8(b)(l)(A) and (2) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Union violated Section
8(b)(l)(A) and (2) of the Act, I shall recommend that it
be required to cease and desist from such violations and
to take certain affirmative action designed to effectuate
the policies of the Act. I shall recommend that the
Union be ordered to make whole William Lindsey, Jr.,
for any loss of earnings he may have suffered by reason
of the discrimination against him, with interest thereon
computed on a quarterly basis in the manner described
by the Board in F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 651
(1977).8
To facilitate the computation and assure Lindsey equal
referral treatment, Respondent Union shall maintain and
make available for the Board or its agents, upon request,
out-of-work lists, referral cards, employer gang orders or
work requests, and any other documents and records
showing job referrals and the basis for such referrals of
employees, members, and applicants. I further recom-
mend that Respondent Union be ordered to post appro-
priate notices, and to notify Lindsey in writing that use
of the Union's referral system will be available to him on
an equal and nondiscriminatory basis with other employ-
ees and applicants.
Because there is record evidence that Respondent
Union follows the actions engaged in against Lindsey as
a customary practice in other instances, because Re-
spondent's president, Williams, ordered business agent
Fields to end the discrimination against Lindsey only
"until such time as it has been adjudicated," and because
denial of referral for employment strikes at one of the
basic rights protected by the Act, I shall further recom-
mend a broad order.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, I hereby issue the fol-
lowing recommended:
ORDER 9
The Respondent, International Longshoremen's Asso-
ciation, Local 1408, AFL-CIO, Jacksonville, Florida, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause any employer to
deny employment to, or in any other manner to discrimi-
nate against, William Lindsey, Jr., or any other employee
or applicant, in violation of Section 8(a)(3) of the Nation-
al Labor Relations Act, as amended.
(b) Refusing to refer William Lindsey, Jr., or any
other employee or applicant for employment because
they make or file complaints about Respondent's referral
system, or engage in disputes with Respondent's officers
or officials, or because of any other arbitrary and unfair
consideration.
(c) In any other manner restraining or coercing em-
ployees in the exercise of rights guaranteed them under
Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
" See, generally, Isis Plumnbing d Heating Co., 138 NLRB 716 (1962).
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
138
LONGSHOREMEN'S LOCAL 1408
(a) Refer William Lindsey, Jr., for employment to po-
sitions for which he is qualified, on an equal and nondis-
criminatory basis with other employees and applicants.
(b) Make whole William Lindsey, Jr., for any loss of
earnings he may have suffered by reason of the discrimi-
nation against him, in the manner set forth in the section
of this Decision entitled "The Remedy."
(c) Notify William Lindsey, Jr., in writing, that Re-
spondent's referral system will be available to him on an
equal and nondiscriminatory basis with other employees
and applicants.
(d) Maintain and, upon request, make available to the
Board or its agents, for examination and copying, out-of-
work lists, referral cards, employer gang orders or labor
requests, and any other documents and records showing
job referrals and the basis for such referrals of employ-
ees, members, and applicants, which are necessary to
compute and analyze the amount of backpay due Lind-
sey, and to assure him equal referral treatment.
(e) Post at its business offices, hiring hall, and meeting
places copies of the attached notice marked "Appen-
dix."' 0 Copies of said notice, on forms provided by the
Regional Director for Region 12, after being duly signed
by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to members are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
JO In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NoTinc To EMPIlOYIIS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL. NOT cause or attempt to cause any em-
ployer to deny employment to, or in any other
manner to discriminate against, William Lindsey,
Jr., or any other employee or applicant in violation
of Section 8(a)(3) of the National Labor Relations
Act.
WE WILL NOT refuse to refer William Lindsey,
Jr., or any other employee or applicant for employ-
ment because they criticize our hiring hall proce-
dures or engage in disputes with union officials, or
because of any other unfair and arbitrary considera-
tion.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
WE WILL refer William Lindsey, Jr., for employ-
ment to positions in which he is qualified, on an
equal and nondiscriminatory basis with other em-
ployees and applicants.
WE WILL make whole William Lindsey, Jr., for
any loss of earnings he may have suffered by reason
of the discrimination against him, with interest.
INTERNATIONAL LONGSHOREMEN'S Asso-
CIATION, LOCAL 1408, AFL-CIO
139