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

National Labor Relations Board - Administrative Judge Opinions

Dec 9, 2016

15-CA-096939 (N.L.R.B. Dec. 9, 2016)

JD-116-16
Gulfport, MS
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
THE GULFPORT STEVEDORING ASSOCIATION-
INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION CONTAINER ROYALTY PLAN
and Case 15-CA-096939
TOMMY EVANS
INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION LOCAL 1303
and Case 15-CB-096934
TOMMY EVANS
Caitlin E. Bergo, Esq., Matthew J. Dougherty, Esq., and Kevin McClue, Esq.
for the General Counsel.
Stephen W. Dummer, Esq., and Matthew M. McCluer, Esq.,
for the Respondent Plan.
Kevin Mason-Smith, Esq., and Louis L. Robein, Esq.,
for the Respondent Union.
SUPPLEMENT DECISION AND ORDER
[Equal Access to Justice Act]
Eric M. Fine, Administrative Law Judge. This is a Supplement Decision and Order
regarding an application for an award of allowable fees and expenses pursuant to the Equal
Access to Justice Act (EAJA), Pub. L 96-481, 94 Stat. 2325 and Section 102.143 of the Rules
and Regulations of the National Labor Relations Board (the Board) filed by The Gulfport
Stevedoring Association-International Container Royalty Plan (Respondent Plan).
STATEMENT OF THE CASE
On September 25, 2015, the National Labor Relations Board issued a Decision and
Order1 in the above-entitled proceeding. Thereafter, on October 22, 2015, the Respondent Plan
filed with the National Labor Relations Board in Washington, D.C., an Application for Attorney’s
Fees and Brief in Support under EAJA based on the unfair labor practice proceeding held
before Administrative Law Judge Michael A. Marcionese.2 On November 2, 2015, the Board

1 363 NLRB No. 10.
2 Respondent Plan also filed on October 22, 2015, a “Motion to Withhold Information from
Public Disclosure.”
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issued an order referring the EAJA application to the Administrative Law Judge; and since judge
Marcionese has retired the matter has been referred to the undersigned. On January 15, 2016,
Counsel for the General Counsel filed a “Motion to Dismiss Application for an award of
Attorney’s Fees and Expenses under the Equal Access to Justice Act.” On March 18, 2016, 5
Respondent Plan filed a “Response to General Counsel’s Motion to Dismiss the Application for
Attorney’s Fees and Cost” as well a “Petition for Increased Attorney’s Fees.”
A. The Underlying Decision
10
Judge Marcionese found in his decision, as affirmed by the Board, that Respondent Plan
is under the Board’s jurisdiction as a statutory employer. The judge then went on to dismiss the
underlying complaint allegations against Respondent Plan and Respondent Local 1303 (Local
1303 or the Union) finding that Tommy Evans was not discharged in violation of Section of
8(a)(3) of the Act; and that Local 1303 did not cause Respondent Plan to discharge him in 15
violation of Section 8(b)(2) of the Act.3
The judge found: Tommy Evans, at the time of his termination, was one of two container
inspector-dispatchers (CIDs) employed by Respondent Plan. The position was created in 1974
and Tommy Evans, hired in 1974, was the first CID hired. Tommy Evans held the position 20
almost 40 years until the time of his termination effective January 5, 2013. Harold Oliver was
hired as a CID a few years after Tommy Evans, at which time there were two CIDs. Oliver was
replaced, upon his retirement, by CID Huey Cuevas in 2005. The judge noted that although the
CID’s are members of Local 1303, they are not part of the bargaining unit represented by Local
1303. While not part of the bargaining unit, the judge noted they received the health and 25
welfare, pension and vacation benefits provided for by the CBA for the bargaining unit, and they
continued to accrue bargaining unit seniority while working as CID’s. The record reveals that for
a number of years, until 2010, the CIDs were paid for their dispatch work by Local 1303 for 25
percent of their wages, and the remainder of their wages was paid by Respondent Plan for
container verification for purposes of employer contributions to Respondent Plan. 30
It was noted that, in the beginning the CIDs only performed dispatch duties, but in the
early 1990’s due to containerization, the CIDs were assigned additional inspection duties,
involving checking the ships’ manifests, calculating the amount to be paid in container royalty by
employers based on what the manifests showed in terms of volume of container cargo, and 35
comparing that number with the amount contributed by the employer. If there were
discrepancies the CID contacted the employer to try and resolve the matter. The judge noted
that Tommy Evans testified he seldom completed the paperwork for these inspections, and that
he did not do any inspection reports in 2012.
40
The judge stated that Tommy Evans decided to retire in 2011, because he was resentful
in what he perceived to be Cuevas not doing his job. The judge noted Cuevas was on medical
leave in 2011 for several months, and was not showing up to dispatch longshoremen at the
shape ups. Tommy Evans brother, Donald Evans, who was the longtime president of Local
1303, and one of four trustees of Respondent Plan talked Tommy Evans out of retirement at 45
that time, and to continue working until a more favorable health insurance plan went into effect
in 2012. The judge found that Tommy Evans continued to work in 2012, although several

3 There are three individuals named Evans involved in this proceeding, Charging Party
Tommy Evans, his brother Donald Evans, and Tommy Evans’ son Glen Evans, as a result each
will be referred to by their full name.
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3
witnesses including long time receptionist Gloria Pittman testified Tommy Evans stopped
coming into the union hall for dispatch purposes when the Union moved to a new hall in 2012.
Respondent Union held its election of officers on September 22, 2012. The elections
were held every three years. During the election at issue, Tommy Evans son Glen Evans ran 5
against long time Local 1303 President Donald Evans, and Glen Evans lost a close race by 18
votes out of 230 cast. Glen Evans was Local 1303’s vice president at the time of the election,
although as the Board noted on appeal, the judge had mistakenly stated in his decision that
Glen Evans had been removed from that position by Donald Evans in June 2011. In fact, Glen
Evans was removed as Respondent Plan trustee in 2011, not as Local 1303 vice-president. A 10
distinction worth mentioning here because as Local 1303 vice president Glen Evans performed
dispatch duties when the CIDs did not post.
The judge noted that Tommy Evans, as corroborated by Glen Evans, testified that he
campaigned for Glen Evans, by handing out flyers and talking to pensioners. The judge stated 15
this testimony contradicted that contained in Tommy Evans’ pre-hearing affidavit wherein
Tommy Evans testified that he did not actively campaign for his son. It was noted that Tommy
Evans testified he did not know if his brother knew of his campaign activity, and the judge stated
the Respondent Plan’s trustees all testified at the hearing that they were unaware of any
campaign activity engaged in by Tommy Evans.20
The judge cited one disagreement between Glen Evans and Tommy Evans in early
2012, which Donald Evans had to break up, as well as testimony by other witnesses of another
earlier confrontation between Tommy and Glen Evans. It was noted that in November 2012, the
trustees voted during a trustee meeting to give CIDs Tommy Evans and Cuevas the annual 25
container bonus that was tendered to eligible bargaining unit employees. The judge found that
around the same time Donald Evans asked Tommy Evans if he was going to retire, and Tommy
Evans replied that he decided to continue working until the next election which would take place
in 3 years.
30
The judge found that on December 11, 2012, at Donald Evans request, Respondent
Plan trustees held a special meeting at which Donald Evans’ recommendation to terminate
Tommy Evans was discussed and voted on unanimously to terminate by the four trustees. The
trustees denied that the union election had anything to do with the decision. The judge found
the trustees directed the Plan Administrator Walsh to send Tommy Evans a termination letter 35
and at Donald Evans’ request not to detail his brother’s viewed performance issues. The
termination letter, dated December 12, 2012, was limited to the only explanation to Tommy
Evans was that he was being terminated for “performance issues” with the effective date of the
termination listed as January 5, 2013. The judge found the January 5, 2013 date was selected
to ensure that Tommy Evans would be eligible to receive the new and improved health benefits.40
The judge cited a number of witnesses who testified concerning performance issues of
Tommy Evans in support of his decision to dismiss the complaint. Yet, the judge also stated:
There is no dispute that the performance concerns cited by the trustees and these 45
witnesses had occurred for a number of years yet there is no evidence that the Charging
Party was ever warned, counseled, or otherwise informed that the Respondent Plan was
not happy with his performance. Nor did the Charging Party receive any specific
warning before the December 11 trustees meeting that he was about to be terminated.
50
JD-116-16
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The judge noted that in her brief the General Counsel reviewed the documentary evidence and
made a strong showing that Tommy Evans performed his dispatch functions far more often than
Respondent claimed. However, the judge noted that Tommy Evans conceded in his testimony
that he did not record the tape announcing work assignments 90 percent of the time and he did
not prepare any contain inspection reports in 2012, which the judge found to be primary 5
functions of the CID.
The judge concluded using the Wright Line test that the General Counsel failed to meet
two key elements of a prima facie case in terms of establishing Tommy Evans participation in
protected concerted activities and knowledge of that participation by Respondent. The judge 10
noted the testimony of Tommy Evans and Glen Evans on this point was contradicted by Tommy
Evans pre-hearing affidavit, and based on circumstances he described the judge found the
testimony in the affidavit to be more reliable than that of the witnesses at the hearing. The
judge in dismissing the complaint found in the circumstances cited that the General Counsel’s
arguments of timing and pretext were not sufficient to establish a “prima facie case of animus or 15
unlawful motivation in the absence of evidence of protected activity and knowledge.”
B. Analysis
1. Legal Principles20
In Horizon Contract Glazing, Inc. 353 NLRB 1094, 1094-1095 (2009), it was stated:
It is well established that the General Counsel's litigation position is substantially justified
where it is possible to draw a set of inferences that would have supported the General 25
Counsel's position. See Meaden Screw Products Co., 336 NLRB 298, 302-303 (2001);
Europlast, Ltd., 311 NLRB 1089 (1993), affd. 33 F.3d 16 (7th Cir. 1994).
Apart from evidence about the November 8, 2005 conversation, the General Counsel
presented evidence of the Applicant's shifting defenses for refusing to recall Upchurch,
as well as other circumstantial evidence that, if credited, might reasonably have 30
established the animus element of the General Counsel's prima facie case. Although the
judge failed to address this evidence, and the General Counsel did not except to his
failure to do so, the evidence provides further support for finding that the General
Counsel's litigation position was substantially justified. For it is also well established that
“where the General Counsel is compelled by the existence of a substantial credibility 35
issue to pursue the litigation, and therefore to present evidence, which, if credited, would
constitute a prima facie case, the General Counsel's case has a reasonable basis in fact
and law and is substantially justified” (citations omitted). See Golden Stevedoring Co.,
343 NLRB 115, 116 (2004).
***40
Where credibility issues crucial to the outcome of the case cannot be resolved
administratively on the basis of documentary or other objective evidence, the General
Counsel is substantially justified in taking the case to trial before an administrative law
judge. Bouley, Inc., 308 NLRB 653, 654 (1992): Advance Development Corp., 277 NLRB
1086, 1087 (1985).45
In Raleys & Indep. Drug Clerks Assn., 357 NLRB 880 (2011), it was stated:
Under Pierce v. Underwood, 487 U.S. 552, 563-566 (1988), an agency's position is
“substantially justified” where the evidence is “what a reasonable mind might accept as 50
adequate to support a conclusion”—i.e., where it has a reasonable basis in fact and law.
JD-116-16
5
An agency's position is substantially justified when “reasonable people could differ” on
whether the action should go forward. Id.; see also Teamsters Local 741, 321 NLRB
886, 889 (1996). The mere fact that the General Counsel lost or advanced a position
contrary to prior precedent does not mean the litigation lacked substantial justification.
Alpha-Omega Electric, 312 NLRB 292, 293 (1993).5
As the EAJA judge also noted, the applicable standard is not intended to deter the
General Counsel from bringing forward close questions of fact or new theories of law.
Meaden Screw Products, Co., 336 NLRB 298, 300 (2001). Finally, the clarity of the
governing legal principles, or lack thereof, must be taken into account. Abell Engineering
& Mfg., 340 NLRB 133, 133-134 (2003).10
2. The Witnesses’ Testimony
At the time of Tommy Evans’ termination, Respondent Plan had four trustees, two
representing the Union and two representing the Gulfport Stevedoring Association (GSA). The 15
two union trustees were Local 1303 President Donald Evans and Darius Johnson. The two
GSA trustees were Gregg Schruff, the port manager for Stevedoring Services of America, Inc.,
(SSA) and Kendall Lamb employed by Ports America, Inc. (Ports).
Tommy Evans, hired as the first CID in 1974, testified he was not given a job description 20
during the duration of his employment.4 Tommy Evans testified that around 1992 or 1993, they
sent CIDs Tommy Evans and Oliver for training on container checking procedures. He testified
that, at that time, Tommy Evans and Oliver started doing paperwork relating to container volume
for employer fund contributions; up until that time they were just dispatching longshoremen.
Tommy Evans testified that a dispatcher’s job is to separate the men’s cards by seniority and 25
call out according to seniority by the number of men needed by each foreman. Tommy Evans
testified the dispatcher also sets up a recording that the longshoremen can phone into to learn
of the next day’s ship schedule. Tommy Evans testified it was Oliver who was the CID called by
the shipping companies to call in to set up the recording. He testified the person that would
place the call to the CID for the ship order for men was usually a shipping company supervisor. 30
Tommy Evans testified the other CID when Tommy Evans was terminated was Cuevas,
who had replaced Oliver. Tommy Evans testified that when Cuevas came in he just assumed
the duties that Oliver was doing until he retired. Tommy Evans testified if there was shape up
scheduled for 6 a.m., he would report by about 5: 15 a.m. Tommy Evans testified they 35
determined which longshoreman to call out based on certain levels of seniority listed on the
longshoremen’s cards. He testified following Katrina there were generally only up to six
longshoreman per call out, and that the call out would only take a few minutes.
Tommy Evans testified there were times when Cuevas was not present and Tommy 40
Evans had to perform the dispatch work. He testified the CIDs were on call for dispatch work
24/7. He testified most times when Cuevas did not show it was because he was involved with
youth football and baseball, and he enjoyed going to the races. Tommy Evans testified Cuevas
would never show up for dispatching night callouts. Tommy Evans testified when Cuevas did
not show up, Tommy Evans would dispatch the men out. Tommy Evans testified Cuevas was 45
out for an extended period from September to at least November 2010.
Tommy Evans testified he had spoken with his brother Local 1303 President and
Respondent Plan Trustee Donald Evans about retirement when Tommy Evans had turned 62.

4 This testimony was confirmed by Respondent witness and fellow CID Huey Cuevas.
JD-116-16
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He testified the discussion was in 2010. Tommy Evans testified that, he did not retire at that
time, but that he did receive two Social Security pension checks, which he subsequently
returned. Tommy Evans testified he was going to retire, and Donald Evans talked him out of it.
Tommy Evans testified Donald Evans asked him to consider delaying retirement until such time
as he was qualified for a new retiree medical plan known as the MILA plan. 5
Tommy Evans testified he really had not spoken with Donald Evans since 2010. Tommy
Evans explained in 2010 when Donald Evans talked him out of retirement, Tommy Evans had
quit because he refused to keep doing work for Cuevas in that he was drawing a check and not
coming to work. Tommy Evans testified the problem Tommy Evans had with Donald Evans was 10
that Donald was telling him that it was not his job to worry about Cuevas not coming to work.
Tommy Evans testified that Donald Evans did not tell him that Cuevas was home recovering
from open heart surgery. Tommy Evans testified his son Glen Evans told him about Cuevas
condition. Tommy Evans testified that at the time Tommy Evans saw Cuevas at the casino.
Tommy Evans testified he complained to Donald about Cuevas being out. Cuevas testified his 15
open heart surgery was actually in February 2011, and that as a consequence he was not doing
dispatch work from February through October 2011.
Tommy Evans son Glen Evans was elected to be Local 1303 vice president in
September 2009. Glen Evans testified he became a full trustee in Respondent Plan in 2010. 20
Glen Evans testified he was removed as trustee on June 3, 2011, by Donald Evans. 5
Glen Evans testified that in 2010 that he had a disagreement with his father Tommy
because Tommy did not agree to reinstate Garland Taylor into a gang, although a foreman had
requested Taylor’s reinstatement. Glen Evans testified he granted the request as vice president 25
of the Union. Glen Evans testified there was not an incident. Glen Evans testified his father’s
position was that Taylor had left after Katrina and found other work, and Tommy Evans favored
giving the work to the men who remained. Glen Evans testified that any disagreement between
himself and Tommy Evans was in 2010 because that was when Garland was reinstated in the
gang. Glen Evans reviewed his journal which he testified confirmed that this event occurred in 30
2010. Tommy Evans testified that after this incident he gave his son Glen Evans the cold
shoulder.
Glen Evans testified he had another incident with Tommy Evans taking place either in
the latter part of 2010 or up until June 2011 when Glen Evans was removed from the 35
Respondent Plan’s board of trustees. Glen Evans testified he did not have a physical
altercation with Tommy Evans at the time. Glen Evans testified Donald Evans asked Tommy
Evans when he came in why he had not called out the men yet. Tommy Evans asked Donald
Evans where is Cuevas. Donald Evans said he is sick, you know he is sick. Glen Evans, who
was in the back, testified he came out and said you know Cuevas is sick. Donald told Glen to 40
leave to go back in the back. Tommy Evans, pertaining to the incident, testified Glen Evans
was saying Cuevas was sick. Tommy Evans testified he told Glen Evans that he did not know
what he was talking about that Cuevas was not sick anymore. Tommy Evans testified men had
told Tommy Evans that they had been seeing Cuevas at football games. Tommy Evans
testified when Glen was saying this, Donald Evans came in and sent Glen to the back. Tommy 45
Evans testified the discussion was about Cuevas not showing up for work, and that he was
complaining about Cuevas. Tommy Evans testified that during the discussion Donald Evans
was talking about Cuevas being out sick.

5 Glen Evans testified he was removed due to a dispute with Donald Evans over Glen Evans
divorce paperwork which Glen Evans removed from Donald Evans’ desk.
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Glen Evans testified while he was vice president he did not receive any complaints about
either of the CID’s performance. He testified he never talked to Schruff or Lamb, the two
employer trustees for Respondent Plan, about his father’s performance. However, Glen Evans
then testified he had a conversation once with Schruff in that Schruff mentioned something 5
about foremen not being able to get in touch with Tommy Evans. Glen Evans told Schruff if
there was a problem Schruff should write a letter, but Schruff responded, “Nah.” Glen Evans
could not recall when this conversation occurred but testified he was a trustee for Respondent
Plan at the time Schruff made the complaint. As set forth above, Glen Evans had been
removed as trustee in June 2011. Glen Evans testified conversation with Schruff did not occur 10
in 2012.
Glen Evans testified that, while he was vice president, he was present for the majority of
the shape ups. He testified CID Cuevas took ill around the latter part of 2010 or early part of
2011, had bypass surgery and was gone for a year, at least, and when he returned, due to his 15
health he could not attend certain call outs. Glen Evans testified that even when Cuevas was
healthy he would travel with his baseball team and Cuevas would let Glen Evans know and they
made sure the work got done. Glen Evans testified they looked out for each other, and they
always had the ships go out on time. Glen Evans testified that if both Tommy Evans and
Cuevas were missing Glen Evans would do the shape ups. Glen Evans testified that since he 20
has been a longshoreman he has never heard of a ship leaving late because of problems with
the dispatch.
Glen Evans ran against Donald Evans for Local 1303 president in September 2013.
Glen Evans identified campaign literature that he had authored that depicted Donald Evans in a 25
bad light showing 16 bulleted items criticizing Donald Evans, including describing some of the
things Donald Evans purportedly agreed to in a negative fashion, and criticizing the way he
conducted himself as union president such as card playing daily from “11-2:30 or later,” and
“Does not abandon card game and members have to discuss personal business at card table.”
Glen Evans testified he had about 100 copies of the literature made, and he passed it to 30
different Local 1303 members. He described in his testimony that the distribution of the
literature was fairly extensive.
Glen Evans testified he discussed his decision to run for president with his father Tommy
Evans in 2012. He testified he told Tommy Evans that Glen Evans needed him to talk to some 35
of the retirees to get some of them on Glen Evans’ side. Glen Evans also testified that on the
day of the election Tommy Evans walked around, and talked to men as they were going to vote.
Glen Evans testified that day they had a picnic and Tommy Evans was walking around talking to
the men, who being family members, making for an uncomfortable situation. Tommy Evans
testified he campaigned for Glen Evans “a little” for union president. Tommy Evans testified a 40
couple of retired longshoremen called and asked him to meet with them. He went to their
homes. Tommy Evans testified he spoke to them in favor of Glen Evans. Tommy Evans
testified he thought he passed out three or four flyers. However, Tommy Evans testified that he
stated in his affidavit given on February 1, 2013, that “I did not actively campaign on behalf of
my son, Glen Evans.” When asked for an explanation of the discrepancy, he testified “I don’t 45
know. I just wasn’t thinking at the time, I guess.”
Glen Evans testified he lost the election for president by 18 votes. The certification of
election results was dated September 22, 2013, with Donald Evans receiving 124 votes and
Glen Evans receiving 106 votes. Glen Evans testified he had certain individuals running on his 50
slate and Donald Evans’ slate included Chris Johnson, and Darius Johnson. Glen Evans
JD-116-16
8
testified he contested the election results arguing there were a lot of irregularities. Glen Evans
testified he filed election objections with the local union, then with the district office, then with the
international union. He testified he also filed with the Office of Labor-Management Standards to
contest the election. He did not prevail on his election objections. Glen Evans testified he
expressed an interest in the CID position immediately after he found out his dad was fired. 5
However, he learned that Chris Johnson had already been selected.
Tommy Evans testified that in November 2012, Donald Evans told him he needed to
retire that Donald Evans was not going to sign his dam check anymore. Tommy Evans testified
he was trying to respond to ask him what was going on but Donald Evans left too quickly to give 10
him a response. Tommy Evans found out about his termination when he received his
termination letter dated December 12, 2012, effective January 5, 2015. The letter just states
“performance issues” as cause for the termination. Tommy Evans testified he did not know
what the performance issues were that were referenced in the letter. He testified no one is ever
explained it to him. He testified he was never told that specific aspects of his job needed to be 15
improved by anyone from the Union, or Respondent Plan.
Tommy Evans testified union president Donald Evans was present for the shape ups
only about 1% of the time. Tommy Evans testified he never saw Lamb or Schruff at the shape
ups. Tommy Evans testified that none of the Respondent Plan trustees ever told him about any 20
performance problems he had at work. Tommy Evans testified he never received any written
discipline as a CID. He never received any negative performance reviews. Tommy Evans
testified he received a bonus equivalent to the container royalty check, and he received one
each year he was employed as a CID. Tommy Evans received a bonus in November 2012 the
month before his termination. 25
Tommy Evans testified he showed up about 98% of the time to work in 2012. He
testified Donald Evans was not there because Tommy Evans dispatched the men before Donald
Evans arrived at the union hall. Tommy Evans testified they were doing construction work in the
new union hall which caused problems with his sinuses, and that as a result he only came into 30
the new hall 50% of the time. He testified he did a lot of hiring for the shape up outside the
union hall. When asked if he was really working in 2012 Tommy Evans testified, “Yes, I was
working.” Tommy Evans testified he did not do any reports for the container inspector position
in 2012. Tommy Evans testified that after Donald Evans had previously talked him out of
retiring that Donald did not subsequently complain to him that he was not coming to work and 35
not doing his job.
Victor Walsh testified he has been the administrator of Respondent Plan since 1982 and
he was an assistant administrator when it started in 1974. Walsh testified the CID is hired by
Respondent Plan’s Board of Trustees. Walsh testified the CID serves as a dispatcher of labor, 40
and as a container inspector who checks tonnage shipped to verify the shippers are making the
correct contribution to Respondent Plan. Walsh testified he is not the supervisor of the CIDs, he
testified the Plan trustees are their supervisor. Walsh testified if he has a problem with the
CID’s performance he will bring it to the board of trustees. Walsh testified that he is not the one
who observes the CID’s performance pertaining to their dispatch work. He testified he observes45
their work pertaining to the container inspecting.
Walsh testified that in 1992 the CID position changed in terms of expanded container
inspection duties. Walsh testified that one of the functions of the CID’s is to provide shipping
manifest reports. Walsh testified he received these reports from CID Cuevas, but over a span 50
of a lot longer than a year he did not received any of these reports from Tommy Evans. Walsh
JD-116-16
9
testified that over the 30+ years he has been an administrator he has received only about two of
these reports from Tommy Evans. Walsh testified he tried to get Tommy Evans to do it and he
would not. Walsh testified he told Donald Evans in 1992 that Tommy Evans was not doing it.
Walsh testified that Donald Evans told him that he would see if he could get him to do it. Walsh
testified that Donald Evans said, “as long as you get what you need, you need to keep your 5
mouth shut.” Walsh testified he did keep his mouth shut. He testified he was getting what he
needed from CID Oliver and later from Cuevas, and the last report he received from Tommy
Evans was around 1992. Walsh testified in the past few years there have not been any
incidents where he talked to Tommy Evans about his performance.
10
Walsh also testified he did not recall receiving any complaints about Tommy Evans
dispatching duties. However, he then testified they Cuevas told him that he was not happy with
it and Walsh told Tommy Evans he had to do the job. Walsh testified he did not receive any
complaints from the trustees concerning Tommy Evans unavailability on the phone until the last
couple years. Walsh testified that in the summer of 2012 Lamb complained about it to Walsh, 15
stating he and his people could not get ahold of Tommy Evans. Walsh testified he told Lamb to
talk to Donald Evans. Walsh testified he did not report the complaint to anyone. Thus, Walsh’s
testimony was inconsistent concerning complaints about Tommy Evans performance at first
stating he did not recall any incidents where he talked to Tommy Evans about a performance
issue then saying there was an instance when he did.20
Walsh testified that beginning in 2010 going into 2011 Respondent Plan began trying to
get under MILA welfare plan. Walsh testified the MILA Plan was better for the plan participants
than the then existing self-funded plan which only had a maximum annual payout of $125,000.
He testified MILA has an unlimited maximum. Walsh testified that he is familiar with Tommy 25
Evans’ health condition and that the MILA plan is better for Tommy Evans. Walsh testified that
Donald Evans came to him and was concerned that Tommy Evans needed to have higher limit
coverage. Donald Evans asked him if MILA would be better for Tommy Evans and Walsh said
yes. Walsh testified that Tommy Evans had to work through September 30, 2011 to be qualified
for better MILA benefits as of January 1, 2012.30
Donald Evans gave somewhat confused and inconsistent testimony concerning health
insurance benefits for Tommy Evans. Donald Evans testified in terms of Tommy Evans
performance getting worse over the years the reason the trustees did not terminate him earlier
was that Donald Evans found out that Tommy Evans was planning on retiring. Donald Evans 35
testified he strung Lamb along on that basis in that Donald Evans probably would not have
voted to fire him. Donald Evans testified he wanted to keep Tommy Evans working because
Tommy Evans was his brother, he did not have much longer to go as far as retirement and they
were trying to get a MILA insurance program started. Donald Evans testified he knew Tommy
Evans had developed lupus and the insurance program they had for pensioners at the time was 40
only $50,000 for hospitalization. Donald Evans testified he knew that MILA was an unlimited
plan where you have enough coverage until you reach 65 to get on Medicare. Donald Evans
testified they were getting MILA in 2012. Donald Evans testified, “Once we got the MILA
program started, I knew if he stayed on until January 1, he would have MILA until he got 66
years old or 65 – over 65 years old. At that point, one MILA – we found out that MILA did not 45
cover pensioners, I knew that he would have an opportunity to get with the Social Security
program.” He testified Tommy Evans was born in 1948. However, according to this explanation
unless Tommy Evans was born on or before January 5, 1948, since the effective date of his
termination was January 5, 2013, Tommy Evans would not have been 65 at the time he was
discharged. Moreover, in Donald Evans March 13, 2013 affidavit attached to Respondent’s 50
“Application for Attorney’s Fees,” Donald Evans gave another version stating he told Tommy
JD-116-16
10
Evans “if he waited to retire, he might have better health care benefits under the new plan. The
new insurance was effective January or February 2012.” The discussion concerning Tommy
Evans turning 65 was not even mentioned in the affidavit, which concurred more with Walsh’s
explanation. Moreover, while the judge found Respondent benevolently postponed Tommy
Evans’ discharge date until January 5, 2013, a more logical explanation was the January 5, 5
2013 date was selected because that was the date the new union officers from the September
2012 election took office. Thus, January 5, 2013, was the date that Chris Johnson who Donald
Evans handpicked as a replacement CID for Tommy Evans also took union office. Chris
Johnson ran on Donald Evans undercard slate of candidates. Therefore, a more logical
explanation of the January 5, 2013 termination date was it coincided with Donald Evans goals 10
from the 2012 election, and that was to get his supporters in favorable positions with the
bargaining unit, including the CID function of dispatcher which determined which employees
worked and did not work.
The minutes for Respondent Board of trustees meeting held on November 6, 2012, 15
reflect there was a motion made by union trustee Johnson and approved unanimously to pay
the CIDs Tommy Evans and Cuevas a bonus equal to the container royalty benefits paid to
qualifying longshoremen. Schruff testified that at this meeting there was no discussion of
Tommy Evans’s performance. There was also no discussion of firing or disciplining Tommy
Evans at the meeting. The parties stipulated that Tommy Evans did not appear in any of the 20
minutes of the Board’s prior meetings.
Walsh testified that he attended the December 11, 2012, plan trustee meeting where the
decision was made to terminate Tommy Evans. He testified he learned of the meeting from
Donald Evans who is chairman of the board of trustees. Walsh testified that Donald Evans said 25
he was going to call the meeting to talk about Tommy Evans. Walsh testified during the
December 11 meeting Donald Evans made the motion seconded by union trustee Darius
Johnson to replace Tommy Evans with Chris Johnson for performance issues. There was to be
a termination letter to Tommy Evans and Walsh had to write it and was told to only state the
reason was “performance issues.” He testified Donald Evans did not want his brother Tommy 30
Evans long history of nonperformance cited in the letter. Walsh testified he did not know
Tommy Evans was going to be fired before it was determined at the December 11 meeting, so
Walsh did not give Tommy Evans a prior warning.
Walsh testified that, during the meeting December 11 meeting, Donald Evans said he 35
wanted to recommend that the trustees terminate Tommy Evans. He testified the reason
Donald gave was that he was not doing his job. Walsh testified Donald said that Tommy was
not even coming into the hall to do the dispatch anymore. Walsh testified then both the
employer trustees said their people had trouble contacting Tommy Evans. Walsh testified there
was a discussion by the attorneys about the legal ramifications as to whether they could 40
terminate Tommy Evans. Walsh testified the trustees did not discuss any other candidate other
than Chris Johnson to replace Tommy Evans. He testified they voted unanimously to terminate
Tommy Evans and replace him with Chris Johnson. Walsh testified Donald Evans and Darius
Johnson made the motion to terminate and replace, which was passed unanimously. Walsh
testified that after the vote he was directed by the trustees to write Tommy Evans a letter and 45
notify him of that decision. Walsh testified concerning the December 11, 2012 meeting, in
response to a question from Respondent Plan’s counsel, that there was no discussion at the
meeting about an attempt to retaliate against Tommy Evans for Glen Evans running. Walsh
testified that as a result of the meeting the Board approved a set of minutes, which Walsh
prepared. Walsh wrote the termination of Tommy Evans was for performance issues. Walsh 50
JD-116-16
11
testified he did not write down the complaints the trustees explained during this executive
session because Donald Evans wanted to protect his brother.
Donald Evans testified he called Walsh to schedule a special meeting of the board of
trustees of Respondent Plan in order to terminate Tommy Evans. Donald Evans at first testified 5
that at the December 11, 2012, meeting, Local 1303 recommended Tommy Evans be
terminated and replaced with Chris Johnson. He then testified the local did not do that. Donald
Evans testified he did not recall giving a notarized statement on February 26, 2013. However, it
was read into the record that the document states “The Gulfport Stevedoring Association,
International Longshoremen’s Association Container Royalty Plan, the GSA-ILA plans at one 10
time employed union member Tommy Kirk Evans, in the position of container
inspector/dispatcher. Tommy Evans worked as one of the container inspectors until January
2013. The Local 1303 recommended to the Board of Trustees for GSC/GSA plans that Tommy
Kirk Evans will be terminated due to complaints Local 1303 was receiving regarding
performance issues in the position of container inspector/dispatcher.” Donald Evans testified he 15
had no recollection of making the statement but that it contained his signature. Donald Evans
testified at the trial that at the December 11, 2012 meeting, Donald Evans recommended that
Chris Johnson be hired into the position of CID to replace Tommy Evans. Donald Evans
testified he knew that Johnson would take the position because he asked him before the
meeting. 20
Donald Evans testified he called the December meeting for the purpose of terminating
Tommy Evans. Donald Evans testified that at the meeting that the reason he voted for
terminating his brother was because he was not doing his job. When asked by Respondent
Plan’s counsel, Donald Evans testified it did not matter to him Tommy Evans his son ran against 25
Donald Evans in the election. Then the following exchange occurred under the questioning of
Respondent Plan’s Counsel Dummer:
Q Did it matter to you that he supported his son in the election?
A No, it didn’t.30
On February 26, 2013, the same date of Donald Evans notarized statement, Respondent Plan
counsel Dummer submitted a position statement to the Region containing the following
statement:
35
Upon information and belief, during the time of T. Evans’ termination, the union was in
the midst of its election of officers. The Union President position was then held by T.
Evans’ brother, Donald Evans. T. Evans’ son, Glen Evans, ran against Donald Evans
for the position of President. Upon information and belief, T. Evans publicly supported
Glen Evans.40
Donald Evans testified that during the December 11 meeting, everyone at the meeting
had an opinion and said something but Donald Evans did not want a lot of negative things in
writing in the termination letter. However, Donald Evans’ pre-hearing affidavit given to the
Region on March 13, 2013, states pertaining to the meeting:45
I’m not sure if I called or initiated the meeting in December 2012. At the meeting, I
recommended that the trustees vote to terminate Tommy Evans. I do not remember
exactly what was said at the meeting. I do not remember if I gave the reasons listed
above are not. I don’t remember what the company representative said at the meeting. 50
I assumed they all had experience with Tommy not putting calls on the tape or not being
JD-116-16
12
responsive to phone calls but I cannot say for sure whether they brought this up in the
meeting or not.6
Schruff testified he learned of the December 11, 2012 meeting by receiving a call from
Walsh. Walsh told Schruff they would be discussing Tommy Evans. Schruff testified the first 5
time he heard they were considering terminating Tommy Evans was at the meeting. Schruff
testified that, during the December 11 meeting, Donald Evans suggested terminating Tommy
Evans. Donald Evans also suggested Chris Johnson as a replacement. Schruff testified this
was the first time he heard Chris Johnson being recommended by Donald Evans. Donald
Evans told the trustees that Chris Johnson would be able to do the CID job. Schruff testified 10
there was no further evaluation of Johnson’s qualifications for the job. Schruff testified that he
was aware that Chris Johnson had just been elected to be secretary-treasurer of the Union.
Schruff testified he did not remember exactly what was stated at the December 11
meeting concerning the decision to terminate Tommy Evans. Schruff later testified that during 15
the December 11, meeting, “I don’t remember the exact things that were said, but there was—
the other management trustee had had several complaints or had indicated his problems—“
concerning Tommy Evans performance. Schruff testified he voted to terminate Tommy Evans
because of performance issues they have had. He testified the trustees also unanimously voted
to hire Chris Johnson as Tommy Evans replacement. Schruff testified he never talked to 20
Tommy Evans about his performance as a CID. He testified he did not recall any union
members who complained to him about Tommy Evans performance as a CID. Schruff later
testified concerning the December 11 meeting, that management trustee Lamb indicated
performance issues of his supervision or someone not being able to reach to get labor
pertaining to the dispatch functions of the CIDs. Schruff testified this was similar to complaints 25
from Schruff’s supervisors about not being able to reach Tommy Evans to call a tape which was
used to schedule labor. In response to questions from Respondent Plan’s Counsel Dummer,
Schruff testified there was no discussion about the election during the December 11 meeting.
He testified no trustee indicated they wanted to terminate Tommy Evans because of the
election. Schruff testified he voted to terminate Tommy Evans because of past performance 30
issues.
Schruff stated in his pre-hearing NLRB affidavit of March 13, 2013, attached to
Respondent Plan’s application for attorneys’ fees as follows concerning the December 11,
meeting:35
I don’t know if I said anything specifically in the meeting about my superintendents
having trouble getting in touch with Tommy, but that was the reason why I voted to
terminate Tommy. I remember Tommy’s performance was brought up by other trustees,
but I do not remember specifically what problems with his performance were brought up. 40
I do not remember which trustee made the recommendation to terminate Tommy. I
remember the other management trustee, Kendall Lamb, had problems with his
performance as well. The President of the ILA, Donald Evans, also agreed to vote to
terminate Tommy. After discussing Tommy’s performance problems, we discussed what
would be required to terminate Tommy with the Plan’s attorneys. 45
Lamb testified he attended the December 2012 meeting. Lamb testified the discussion
was that Tommy Evans had been given the opportunity to continue to come perform his job, had

6 Donald Evans March 13, 2013 affidavit was attached to Respondent’s application with the
Board for attorney’s fees.
JD-116-16
13
not done so, and it was our understanding he was an at will employee, and that they were going
to move forward to have someone there who could order labor so that they could properly
service our accounts. Lamb testified the trustees did not raise the point that they wanted to
terminate Tommy Evans because his son Glen was running against Donald Evans. Lamb
testified it was not a factor in his decision. He testified his reason for voting to terminate Tommy 5
Evans was they needed to order labor. He testified they needed someone to do their job and
order labor.
Darius Johnson testified on September 10, 2013, that he is a trustee for Respondent
Plan, and he assumed the position 2 years ago. Johnson testified Donald Evans nominated him 10
for the position. Johnson was vice president of the Union at the time he testified, and he was
elected to that position on September 22, 2012, but he did not assume the position of Local
1303 vice president until January 5, 2013.7 Johnson testified Chris Johnson was elected
secretary treasurer for the Union in the September 22, 2012 election. Glen Evans testified that
both Darius Johnson and Chris Johnson ran on Donald Evans slate of candidates.15
Johnson initially testified on 611(c) exam that, prior to the December 11, 2012 meeting,
he did not know why the meeting was called. Johnson could not recall who brought up the
termination of Tommy Evans at the meeting, except to say that Johnson did not recommend it.
Johnson testified he did not remember Donald Evans giving any reasons why Tommy Evans 20
should be terminated. He testified he did not recall Donald Evans discussing any performance
issues he had with Tommy Evans during the meeting. He testified he never told the other
trustees about performance problems he had personally witnessed with Tommy Evans.
Johnson testified that, during the meeting, Donald Evans recommended Chris Johnson replace
Tommy Evans. He testified he did not recall Donald Evans giving any reasons why Chris 25
Johnson would be a good replacement. However, when later questioned by Respondent Plan’s
counsel, Johnson’s testimony changed. He now testified that during the meeting he voiced
concerns he had with Tommy Evans performance. He testified in April he had witnessed
several times that Tommy Evans was absent for shape ups, or showed up late. Johnson
testified that it was more than once or twice that he saw that Tommy Evans was absent and 30
other people had to do his job for him. Johnson testified he never said anything to Tommy
Evans about his being absent. Johnson also testified that during the December 11 meeting,
other trustees complained about Tommy Evans performance. Johnson testified another reason
that was raised wanting to terminate Tommy Evans was they were a having problems
communicating with him. Johnson testified he thought it was said that they could never get in 35
touch with him. Johnson testified the stevedores have to get in touch with the CID for the CID to
make the work order recording. Johnson testified he voted to terminate Tommy Evans
because he witnessed at the union hall Tommy Evans not showing up or being late. Johnson
denied voting to terminate him because of the election or because he supported his son Glen
Evans. Johnson testified that, during the meeting, no one suggested the need to terminate 40
Tommy Evans as a result of the election.
Johnson gave a third version of what was discussed at the December 11, 2012 meeting,
in his affidavit given on March 7, 2013:

7 Darius Johnson’s pre-hearing affidavit, dated March 7, 2013, entered into evidence by
Respondent Union reveals that while he was elected as vice-president in September 2012,
Johnson did not assume the position until January 5, 2013. Moreover, Glen Evans testified he
did not vacate the position of vice-president until January 2013, and that he returned to a prior
employer on January 5, 2013. While the record also refers to Chris Johnson, Darius Johnson
was the only Johnson to testify and he will be referred to as Johnson herein.
JD-116-16
14
One of the trustees, I am not sure which one, said they had an issue with not being able
to get in touch with Tommy when they needed him. I do not remember Donald Evans
saying any reasons why Tommy Evans should be terminated. I do not remember
Donald Evans discussing any performance issues he had with Tommy Evans. I do not 5
remember anything else that was discussed as a reason for terminating Tommy Evans.
I voted to terminate Tommy Evans because of what I had witnessed with him not being
present when he should have been at the shape-ups around April 2012. I did not tell the
trustees about what I observed in April 2012 because I felt it wasn’t necessary. I am not
aware of any problems Tommy Evans had working with the other CI/D Huey Cuevas.10
Schruff testified, at the hearing, over the years his supervision always had a very difficult
time in getting contact with Tommy Evans to put a call out for labor. Schruff testified that Steven
Puccio and Mickey Pebbles had complained to him about Tommy Evans performance as a CID.
He testified he did not know the specific dates of the complaints but at different points 15
throughout the year when we would need to communicate with Mr. Evans it was always very
difficult. Schruff testified when he received the complaints he reported them to either Union
President Donald Evans and/or Union Vice President Glen Evans. Schruff testified Glen Evans
was the vice president of the Union and a Respondent Plan trustee at the time of the
complaints. Schruff testified he tried to contact Tommy Evans personally. Schruff testified he 20
was not able to reach him and did not receive a response back. Schruff testified that during the
last six months of 2012 he had problems getting a hold of Tommy Evans multiple times, two,
three, four times. Schruff testified that in 2011 if they needed to get a hold of Tommy Evans the
majority of time they could not get him. Schruff testified these problems got worse between
2012 and 2011. Schruff testified he did not recall if there was any discussion in 2012 between 25
himself and Lamb regarding problems they were having with Tommy Evans.
As set forth above, Glen Evans testimony contracted that of Schruff in that Glen Evans
testified he only received one complaint from Schruff about Tommy Evans performance. He
agreed with Schruff that complaint was made when Glen Evans was still a trustee for 30
Respondent Plan which would mean the complaint had to have occurred prior to June 2011
when Glen Evans was removed as trustee. Moreover, Glen Evans told Schruff to document the
complaint in writing but Schruff refused undermining how seriously Schruff considered the
matter. Moreover, until Donald Evans initiated the December 11, 2012 meeting to terminate
Tommy Evans none of the trustees thought it necessary to bring Tommy Evans performance 35
issues up at any of the prior trustee meetings, something that likely would have been done if
there was a serious concern by the employers about his performance.8 It should also be said,
that since there were two CID’s any time there was a claimed complaint about not being able to
reach Tommy Evans implicit in that would be an inability to reach Cuevas who also had the
responsibility to set up the recordings for labor orders.9 Even during the period in 2011 when 40
Cuevas was recovering from his illness he was still working from home reviewing records and
issuing container manifests. Therefore, he had the ability to answer the phone and make phone
calls. Plus, the gravamen of the complaint of employer trustees supposedly was the inability to
reach Tommy Evans in 2012 when Cuevas had returned to dispatch duties. Here again, implicit
in their complaints was an inability to reach either CID, but this was taken out on Tommy Evans 45
after his son had the temerity to run for office against fellow trustee Donald Evans.

8 Donald Evans did not mention any complaints to him by Schruff about Tommy Evans in his
March 13, 2013 pre-hearing affidavit.
9 Tommy Evans testified that setting up the tape for call out had primarily been a function by
CID Oliver, and it was assumed by Cuevas when he was hired to replace Oliver in 2005.
JD-116-16
15
Lamb testified he thought Tommy Evans performed his duties well as the CID until
around 2010 when they were having a hard time getting in touch with Tommy Evans to order
labor for dispatch purposes. Then Lamb testified it was not him personally that was having
difficulty it was his supervision at Ports America naming Tim Lancaster and Jesse Parker who 5
called in labor orders. Lamb testified these two individuals reported problems they were having
contacting Tommy Evans to Lamb. Lamb testified they did not contact the other CID as he was
doing the accounting for the containers. He was not dispatching labor. Lamb testified around
2010, Tommy Evans was the CID on duty unless otherwise notified. When asked if there were
any disciplinary action against Tommy Evans, Lamb testified as we do with most laborers they 10
sent word to Tommy Evans that he needs to come to work and he would come back and he
would work.10 Tommy Evans would show up for some time, and then they would have the same
issue again on several occasions. When asked if this was getting better or worse, Lamb then
testified “2010 to 2012.” As set forth above, Cuevas testified he was out with illness from
February 2011 to October 2011. So Lamb’s time period is off here. Moreover, there is no 15
contention that Cuevas had any problems taking phone calls, or calling in to set the tape even
during this time period. Finally, Cuevas testified he returned to dispatching in November 2011,
so Lamb’s contention that problems reaching Tommy Evans continued in 2012 is somewhat
undercut by the fact that the employer’s had the option of contacting Cuevas. There was also a
credibility issue here as Tommy Evans testified that neither Kraft or Lamb ever complained to 20
him about his performance.
When asked what happened in 2012, Lamb testified that at one point Lamb mentioned
to Donald Evans that they were having a hard time justifying paying Tommy Evans’ salary if
they were not able to get in touch with him. Lamb testified he stated to Donald Evans that he 25
was contemplating not signing Tommy Evans checks. However, Respondent attached Lamb’s
prehearing affidavit given to the Region on March 13, 2013 to Respondent Plan’s Motion for
Attorney’s Fees. In the affidavit Lamb made no mention of this conversation with Donald Evans.
Rather, in the affidavit, Lamb testified as follows:
30
I had a few brief discussions with Glen Evans where I told him that Tommy needed to
answer his phone during the months toward the end of 2012 when we had problems with
Tommy not answering the phone. I do not remember the exact dates or circumstance of
these conversations. I may have discussed this with the Union President Donald Evans
at some point in 2012, but I do not remember when. 35
Thus, Lamb not only omitted this critical discussion from his affidavit given much closer
to the event, but the affidavit undercuts the contention that the conversation ever took place in
that he could not even recall discussing Tommy Evans’ performance with Donald Evans. While

10 Yet, the General Counsel entered into evidence warnings that Schruff and Lamb had issued
to longshoremen, but none were issued to Tommy Evans. While technically not covered by the
CBA, the CIDs received their benefits under the CBA, and maintained their longshoremen
seniority under the CBA for time worked as CID’s. Moreover, any claim that the trustees viewed
the CIDs as at-will employees and therefore they did not need to document performance
problems is undermined by the fact that they needed the plan attorneys in attendance for legal
advice at the December 11, 2012, meeting to inform them that Tommy Evans was an at-will
employee. An inference could be drawn that the real concern and need for counsel to attend
the December 11 meeting was discharging Tommy Evans so close in time to the union election.
As set forth above, Cuevas, as per his testimony, was performing dispatch work in 2010, at the
end of 2011, and all the way through 2012.
JD-116-16
16
the General Counsel failed to alert the judge to this prior inconsistent statement at trial, the
affidavit was in the General Counsel’s possession when the Agency proceeded to complaint
further justifying bringing the matter to trial. As both Donald Evans and Lamb omitted this
alleged discussion from their pre-hearing affidavits. Donald Evans omission of the conversation
from his affidavit was in fact pointed out to the judge at the trial as set forth below.5
Donald Evans testified that Tommy Evans performance deteriorated over time.
Concerning the years 2011 to 2012, Donald Evans testified that Tommy Evans has always done
basically “what he wanted to do” and “he went from doing something to nothing.” Donald Evans
testified Tommy Evans was doing nothing around 2012. Like Lamb, Donald Evans testified 10
there was a point in 2012 when Lamb approached him about Tommy Evans. Donald Evans
testified Lamb said he was not going to continue to sign Tommy Evans’ check. Donald Evans
testified Lamb was saying he was disappointed or displeased with what was going on with the
container dispatcher and if things did not improve he would not sign checks for him anymore.
However, Donald Evans provided an affidavit to the Region on March 13, 2013, a copy of which 15
Respondent attached to Application for Attorney’s Fees. Donald Evans when questioned at the
trial testified that he did not recall mentioning this conversation with Lamb in the affidavit. A
review of the affidavit attached to Respondent’s application for attorneys in fact reveals it was
not mentioned. The failure of either Lamb or Donald Evans to mention such a conversation in
their affidavits, and Lamb’s further statement that he may not have talked to Donald Evan’s 20
about Tommy Evans’ performance at all in 2012 would lead to the reasonable conclusion that
no such conversation actually took place and that there was no precipitating event leading to
Tommy Evans discharge other than his son running a spirited and close campaign against
Donald Evans for president. Then after Glen Evans lost, Tommy Evans informed Donald Evans
that he wanted to continue working until the next election thereby tying his retirement decision to 25
elections past and future.
Donald Evans testified he was involved in an argument between Tommy Evans and
Glen Evans. Donald Evans testified Glen Evans was complaining about Tommy Evans not
coming to work on time and one day Donald Evans confronted Tommy Evans about it. Donald 30
Evans testified at that point Glen Evans came into the office and took the argument over. He
testified Glen and Tommy Evans started arguing, and Donald Evans had to get between them to
stop them and he made Glen go back into the office where he came from. Donald Evans
testified this was a heated argument. He testified there was yelling, and using profanity.
Donald Evans testified it got to the point where he got up from behind his desk to separate 35
them. Donald Evans testified that he did not recall what he told Tommy Evans when Glen
Evans left the room but, “like I always tell him, you know, you need to tighten up and, you know,
do a little bit better. And I think he left.” Tommy Evans and Glen Evans testimony were both a
lot more specific to the incident, each testifying it occurred in 2011. Moreover, both testified that
the precipitating point leading to the discussion was Cuevas not showing up for work that day. 40
Tommy Evans testified he argued to Glen that Cuevas was malingering.
Donald Evans has been president of Local 1303 since 1989. Donald Evans became a
trustee for Respondent Plan in the 1980s. Donald Evans testified from time to time they
received complaints about Tommy Evans. Donald Evans testified, “I’ve always tried to, you 45
know, cover it up or makeup for whatever mistake he made.” Donald Evans testified when he
received these complaints he has addressed them with Tommy Evans from time to time and
asked him to improve his performance. Donald Evans explained that he did not take a stricter
role concerning the complaints he received about Tommy Evans because, “I did what I thought I
had to do in order to make things work in the Port, you know.”50
JD-116-16
17
Donald Evans testified that, between September 30 and December 2012, prior to
Tommy Evans termination, Donald Evans asked Tommy Evans about his plans to retire, and
Tommy Evans said he would not retire but he would wait until the next election. Donald Evans
testified that, at one point after the September 2012 election, Donald Evans told Tommy Evans
he would not sign any more checks for him. Donald Evans testified he protected his brother as 5
much as he could. He testified when he was finished protecting him he recommended he be
terminated to the board of trustees.
Donald Evans testified that after Tommy Evans came out of Social Security retirement
and went back to work that he was not doing his job. He then testified “he did his job pretty 10
much, you know, at times but at one point, I was – I got to the point where I was afraid that
some of the members were probably going to go to the Department of Labor and saying that we
were signing checks for somebody who was not doing anything. That was my biggest concern.
And by him being my brother, I know that the wrath of the Department of Labor would probably
come down on me, more so than the other trustees.” Here again, according to Donald Evans 15
his brother was not doing his job for two years. Yet, Glen Evans who was present for most of
the dispatch testified the CIDs with Glen Evans’ support backed each other up and to his
knowledge the ships went out on time. Even according to Donald Evans’ testimony Tommy
Evans’ behavior had been going on a long time and knowingly allowed by Donald Evans. Given
the circumstances here, in which Donald Evans out of the blue precipitated the discharge 20
meeting with no warning to the other trustees, and handpicked a replacement in advance of the
meeting who happened to run on Donald Evans slate of officers, the General Counsel was
substantially justified in contending that Tommy Evans was motivated by Glen Evans running for
office against Donald Evans and Respondent Plan’s belief that Tommy Evans supported his son
in that effort. In this regard, the campaign, the election, Tommy Evans’ son running in strong 25
opposition to Donald Evans, and Tommy Evans statement close in time to his termination to
Donald Evans that he would maintain his CID until the next union election established a strong
nexus between the timing of Tommy Evans’ discharge and that union election. It could also be
logically inferred by the General Counsel that the internal union election and Donald Evans’
belief of Tommy Evans support for Glen Evans, his son, was the reason Donald Evans 30
precipitously had Tommy Evans removed from his CID position since the position was highly
visible to union members who voted in the election as they were dependent for the CIDs for
their work opportunities.
Respondent Plan called other witnesses in addition to its administrator and plan 35
trustees. Cuevas testified he had worked as a CID for Respondent Plan since October 1, 2005.
Cuevas testified that dispatchers are on call 24 hours a day, seven days a week. They receive
work orders from the stevedore companies to notify the employees of when the vessels are
scheduled to arrive, and the CID then calls in to set up a digital recording the longshoremen can
call to learn when to report. He testified the CID in their dispatcher function also needs to be at 40
the hall or dispatch office by one hour prior to the vessel going to work. The dispatcher receives
the union cards of anyone that is applying for a job that day. Cuevas testified that 30 minutes
prior to that vessel going to work the dispatcher calls out the highest qualified seniority man.
Cuevas testified the most important part of the dispatcher position is being available by phone to
take the work orders from the stevedore companies. Cuevas testified that there were times that 45
neither one of the CID’s were available. Cuevas testified when he was going on vacation he let
the other CID know and if he could not get in touch with him he would let Glen Evans know.
Cuevas testified he had open heart surgery in February 2011. Cuevas testified he kept
dispatch records but he did not have dispatch records from February 16, 2011 to October 3, 50
2011 because he did not dispatch, during that time, due to illness. Cuevas testified while he
JD-116-16
18
was out he received complaints about not being able to get in touch with Tommy Evans from the
stevedore companies. He named Jesse Parker, Jr., Danny Chapin, Mickey Pebbles and
another man named Steven (Puccio) as individuals who said they were having trouble getting in
touch with Tommy. Cuevas testified he told them if they could not get in touch with Tommy
Evans to get in touch with Glen Evans. There is no claim that Cuevas reported any of these 5
contacts to any of Respondent Plans trustees, and according to Cuevas these contacts were all
made in 2011.
Cuevas, at the request of Respondent Plan’s counsel, prepared a summary for the trial
from his records as to who the dispatcher was on duty each day. Cuevas identified the shape 10
up summary as being from Cuevas’ records for 2011 and 2012. As set forth above, Cuevas did
not have dispatch records from February 16 to October 3, 2011. Cuevas testified there was a
period in 2012 where Tommy Evans stopped showing up for dispatching. Cuevas testified they
were still in the old hall for some period of time in February 2012 and Tommy Evans stopped
coming to the office to dispatch there. Cuevas testified they moved into the new office around 15
the end of April or May and Tommy Evans never came in to dispatch there. He testified Tommy
Evans would be outside but he did not come in the office so Cuevas had to dispatch.
Cuevas testified he had a discussion around June or July 2012 with Donald Evans
concerning Tommy Evans attendance. He testified they hired up one day before lunch around 20
10 or 11 o’clock, and after dispatching, Donald Evans asked him if Tommy Evans had helped
him dispatch that day. Cuevas said no and that he had not seen Tommy Evans in the dispatch
office since February when they were in the old hall. Cuevas testified Donald Evans said he
would look into it. When asked if any of the trustees ever spoke to him about problems he was
having with Tommy Evans, Cuevas testified just one time. He testified Schruff called him when 25
Cuevas was in Florida on vacation and Schruff stated he was unable to get in touch with
Tommy Evans and he needed the recording put on to get labor for his vessel. Cuevas testified
he was in Florida for four days around July or early August 2012. This was the only incident in
2012, where Cuevas reported a discussion with a trustee about the inability to contact Tommy
Evans, and it occurred at least 4 months before a decision was made to discharge Tommy 30
Evans.
Cuevas, in response to leading questions, testified Tommy Evans attendance was better
in 2011 and worsened in 2012. Cuevas testified from a review of his summary that for plan year
2012 Tommy Evans helped him five times during the shape ups. Cuevas testified during that 35
period he did shape ups 121 times. Cuevas testified that Glen Evans helped him out quite often
after Tommy Evans stop showing up on these reports. Cuevas testified Glen Evans was always
helping him out. However, in the General Counsel’s post-hearing brief and brief in support of
exceptions the General Counsel relied on Cuevas’ testimony and the records he submitted to
contend that Cuevas, during the period he worked in 2011, participated in 19 shape ups in 40
2011, while Tommy Evans conducted 173 shape ups in 2011. Based on a similar analysis for
Cuevas records in 2012, it was posited that Cuevas participated in 98 to 103 shape ups before
Tommy Evans was terminated, and that while Cuevas testified Tommy Evans only participated
in five shape ups, the records show Tommy Evans conducted at least 117 shape ups in 2012.
45
Gary Thomas works for Ports America in the warehouse as a foreman. Thomas testified
the ships he works for are Chiquita. He testified he carried a gang once a week and the ships
come in on a Wednesday. Thomas testified there were days when Tommy Evans did not show
up as a CID. Thomas testified if they do not have a dispatcher, the foremen will hire their own
gangs. Thomas testified that if Tommy Evans did not arrive at work either Cuevas or Thomas or 50
the other foreman would fill the gangs themselves. Thomas testified if Cuevas was there he will
JD-116-16
19
do it. When asked how many times that Thomas or the other foreman had to do the shape up
because Tommy Evans was not there since 2011, Thomas replied “Well, I know several times I
done it.” Thomas testified that Glen Evans was also there to do the dispatching. Thomas also
testified that Tommy Evans arrived late. Thomas testified that if Tommy Evans came late “we
were already gone, we already got the guys and were gone.” Thomas did not know whether the 5
board of trustees knew that Tommy Evans arrived late. Thomas testified that Tommy Evans job
performance got worse over time. Thomas explained that Tommy Evans stopped going in the
dispatch. However, Thomas also testified that from 2011 to 2012 Tommy Evans job
performance stayed the same. After Thomas testified, the judge stated on the record that this
testimony is not helpful because there is no evidence that the trustees had knowledge of this 10
individual’s testimony at the time they made the decision to terminate Tommy Evans. Larry
Holloway testified he is a foreman and crane operator for Ports America. Holloway testified he
carries a gang one time a week for Chiquita. He testified the ship comes in mostly on
Wednesdays. Holloway testified he has not had any problems with Tommy Evans dispatching
men to him. Holloway testified that he has had to shape up men himself once or twice. He 15
testified he could not state whether Tommy Evans or Cuevas was supposed to be the
dispatcher at those times.
Holloway testified there was a verbal disagreement between Glen Evans and Tommy
Evans a year or two back. He testified the disagreement happened outside the old hall. 20
Holloway testified the disagreement was that Glen wanted to send Garland Taylor to work and
Tommy Evans said that he could not go ahead of other fellows. Holloway testified he would
characterize the argument as a heated discussion. He testified they were raising their voices.
When asked if it was becoming almost physical, Holloway testified “Oh, I don’t know about that.”
When asked if it appeared the argument was escalating, Holloway testified “Oh, I don’t know.” 25
Herbert Williams, Jr. Williams works for Ports America as a dockworker and he has been
in that position since 1983. He testified that Tommy Evans is their dispatcher. He testified that
Tommy Evans did not hire him fairly. Williams testified that a couple of times there had been
people hired over him and their seniority is under him. Williams testified he is filed two or three 30
complaints about Tommy Evans not picking him. The record contains three complaints filed by
Williams containing allegations that Tommy Evans failed to dispatch him properly, one was filed
on November 1, 2011, one was filed on November 27, 2012, and one was filed on December 2,
2012. Williams testified that he did not know if Donald Evans or any other officers of the union
intervened on his behalf. He testified on September 12, 2013, that the situation has not been 35
corrected and that he was still not working. Williams testified he has a casual seniority card
which means he has the lowest type of seniority.
Garland Taylor is a forklift operator and has been in that position since 1994. At the time
of the hearing he had a casual seniority card. Taylor testified that Tommy Evans did not want to 40
give Taylor a job. Taylor testified that Tommy Evans passed over him 10 to 15 times for a
position in 2012 and before that. Taylor testified he complained to then vice president Glen
Evans about Tommy Evans passing him over. He testified he did not complain to anyone else,
and he never approached Donald Evans about it. Taylor testified he witnessed a heated
conversation between Tommy and Glen Evans. Taylor testified they argued because Tommy 45
Evans did not want to give Taylor a job and Glen did. Taylor testified “I mean, it was toe to toe,
face-to-face, whatever was said.” Taylor did not file a formal complaint about being passed over
by Tommy Evans.
Gloria Pittman works as a secretary for Local 1303, and had been in that position for 50
many years. She testified she will interact with dispatchers if they are hiring during Local 1303’s
JD-116-16
20
office hours which are 8 a.m. to 4 p.m. She testified if gangs are going to work between those
hours she gets a chance to see the dispatchers but if they are going to work at 7:00 a.m. or
midnight, she would never see the dispatchers. Pittman testified that from the hours she was
there she did not have occasion to see Tommy Evans during the day very often. However,
Pittman testified when the Union was in the old dispatch office Tommy Evans would just stand 5
outside the building talking to the men and very seldom come into the office. When asked if
Tommy Evans was working the cards, calling names out or was he just talking Pittman testified
“No. I didn’t see any of that.” She testified that when they moved into the new building “I never
really saw Tommy in our new building.” However, Pittman testified when she saw Tommy
Evans outside of the hall for shape up, he could have been doing the dispatching work outside10
in that it was possible to dispatch the men without going into the dispatcher’s office.
3. The General Counsel’s Position was Substantially Justified.
As set forth above, Tommy Evans was a hired as a CID in 1974. Respondent Plan 15
Administrator Walsh testified that in 1992, the CID position changed requiring record keeping
pertaining to shipping manifests. Walsh testified Tommy Evans refused to file these reports and
that in 1992, Walsh told Donald Evans about this refusal. Donald Evans told Walsh he would
see if it could get Tommy Evans to do it, but as long as Walsh got what he needed that Walsh
should “keep his mouth shut.” Walsh testified he only received one or two of these reports from 20
Tommy Evans, and the last being around 1993. Donald Evans confirmed that a discussion with
Walsh pertaining to this matter did take place. Thus, a different inference could have
reasonably been drawn, than the one drawn by the judge who cited Tommy Evans admission
that he did not do these reports in 2012 as justifying his discharge in that Walsh and Donald
Evans were aware that Tommy Evans was not doing these reports since 1992, and Donald 25
Evans reaction was for Walsh to keep him mouth shut about it. Moreover, there was no
contention that the failure of Tommy Evans to do these reports was mentioned or considered by
the trustees at the December 11, 2012 special meeting called by Donald Evans when they
voted to terminate Tommy Evans.
30
The judge also discredited the testimony of Tommy and Glens Evans that Tommy Evans
campaigned on behalf of his son for the office of union president against Donald Evans. The
judge noted that this testimony contradicted a statement in Tommy Evans pre-hearing affidavit
that he did not campaign for Glen Evans. The judge also found that Respondent Plan trustees
all testified that they were “unaware of any campaign activity engaged in by the Charging Party.” 35
However, to my reading of the record the trustees were never asked that question, nor
specifically denied knowledge of Tommy Evans’ campaign activity. Rather, as the judge also
found each of the trustees testified that the internal union election and any role Tommy Evans
may have had in it was not discussed or considered at the meeting December 11, 2012
meeting. The judge also found that, Donald Evans credibly testified that “he had no knowledge 40
that the Charging Party campaigned or otherwise supported his son’s candidacy for president.”
In my reading of the record, I did not find that Donald Evans was directly asked and denied
knowledge that Tommy Evans campaigned for his son. In fact, the question posited to Donald
Evans by Respondent Plan’s counsel seems to suggest that Donald Evans was aware of, or
believed that Tommy Evans campaigned on behalf of Glen Evans. In this regard, the question 45
by Respondent Plan Counsel Dummer went as follows:
Q Did it matter to you that he supported his son in the election?
A No, it didn’t.
50
JD-116-16
21
The meaning of this exchange takes on all the more significance because on February 26,
2013, Dummer had submitted a position statement to the Region containing the following
statement:
Upon information and belief, during the time of T. Evans’ termination, the union was in 5
the midst of its election of officers. The Union President position was then held by T.
Evans’ brother, Donald Evans. T. Evans’ son, Glen Evans, ran against Donald Evans
for the position of President. Upon information and belief, T. Evans publicly supported
Glen Evans.
10
In this regard, Walsh testified that counsel for Respondent Plan attended the December
11 trustees meeting where it was voted to terminate Tommy Evans. As the General Counsel
pointed out on appeal to the Board, this admission could be construed as substantive evidence
of the knowledge of Respondent Plan officials of Tommy Evans campaign activity. See,
Pressroom Cleaners, 361 NLRB No. 57 (2014); Black Entertainment Television, 324 NLRB 15
1161 (1997); Evergreen America Corp., 348 NLRB 178, 187 (2006), enfd. 531 F.3d 321 (4th Cir.
2008); Bond Press, 254 NLRB 1227, 1231-1232 (1981); and Steve Aloi Ford, 179 NLRB 229 fn.
2 (1969). If admitted into evidence the position statement containing counsel’s admission could
have persuaded the judge to have credited the testimony of Tommy and Glen Evans concerning
those activities, or at a minimum warranted a finding that Respondent’s officials believed he 20
engaged in those activities. However, the position statement was excluded by the judge at trial,
and placed in the rejected exhibit file.
The Board on appeal refused the General Counsel’s argument that the position
statement should be admitted into evidence. This is because, at trial when the General Counsel 25
offered the position statement, a statement was made limiting the purpose for which it was
being tendered, which did not include the above referenced admission concerning Tommy
Evans’ campaign activities and Respondent Plan’s knowledge thereof. Nevertheless, the
position statement was in the Regional office file at the time complaint issued and when the
case went to trial. In the undersigned’s view, given all of the other evidence, the admission 30
contained in the position statement warranted taking the matter to trial, notwithstanding the prior
statement in Tommy Evans’ affidavit. Moreover, despite the error by counsel for the General
Counsel in limiting the purpose of the position statement before the judge, I find that the General
Counsel was substantially justified in placing the matter of the exclusion of the position
statement before the Board, as the admission contained in the position statement went to the 35
heart of an important credibility finding by the judge question, as well as to the judge’s failure to
find the General Counsel had established a prima facie case. Since, it is province of the Board
to protect employees against being discriminatorily discharged it could have been concluded on
appeal that an important trial error by General Counsel should not serve as a shield against an
unfair labor practice finding. As an alternative the issue could have been to remanded to the 40
judge to eliminate any due process concerns, rather than have an employee possibly lose the
Act’s protection due to an error of the General Counsel during the heat of a trial. I am not
questioning the Board’s decision to reject the General Counsel’s argument here. Rather, I am
finding that the General Counsel was justified in bringing the matter to the Board. Regardless, I
have concluded that since the position statement was in the Region’s files, as set forth above, 45
the admission therein clearly demonstrates that the issuance of complaint and bringing the
matter to trial was substantially justified, regardless of any error at trial concerning its admission
to evidence. In this regard, the record was preserved to the extent the position statement was
placed in the rejected exhibit file for reconsideration of its admission by reviewing authorities.
50
JD-116-16
22
As noted by the Board, the judge found in error that Glen Evans was removed as vice-
president of the Union in June 2011. The Board corrected this finding in that Glen Evans was
not removed as vice-president at that time, but rather was removed from his position as plan
trustee in June 2011. Glen Evans was vice-president from September 2009 until January 5,
2013, serving his full term in that office. This error could have been considered as significant in 5
that Glen Evans served as a backup to the CIDs in terms of their dispatching duties for a period
of 3 years while serving as vice-president. Cuevas’ testimony revealed that he reported to Glen
Evans in terms of his taking time off, and that Glen Evans diligently reported to the shape ups.
Yet, after he ran for office against Donald Evans he was not even considered by the trustees at
the December 11 meeting to replace Tommy Evans as CID. Rather, Chris Johnson, who ran on 10
Donald Evans slate, was contacted about the CID position and agreed to accept it prior to the
December 11, meeting even before the trustees had voted to terminate Tommy Evans. A
reasonable argument could be made that Donald Evans decisions and recommendations were
tied to who was for and who was against him in the September 22 election.
15
Along these lines, the judge found that the trustees voted to terminate Tommy Evans
during the December 11, 2012 meeting, effective January 5, 2013, and that the January 5
effective date was selected to ensure that the Charging Party would be eligible to receive the
new health insurance benefits. This finding by the judge could certainly be challenged by the
General Counsel. First, there was no testimony of any witness that the termination date and the 20
reasons therefore was discussed or voted on by the trustees at the December 11 meeting.
Moreover, the testimony of Respondent’s witnesses concerning Tommy Evans’ eligibility for the
new health insurance was all over the lot. Walsh, the plan administrator, who by his position in
terms of the availability of the insurance was in the best position to know testified that he
discussed the matter with Donald Evans. Walsh testified that Tommy Evans had to work 25
through September 30, 2011 to be qualified for the MILA benefits as of January 1, 2012, a full
year earlier than Tommy Evans was discharged. However, Donald Evans gave a different
explanation at trial stating in a somewhat confused fashion that they were receiving MILA in
2012, and that if Tommy Evans stayed on until January 1, he would have MILA until Tommy
Evans was 65, as at that point MILA did not cover pensioners as they would have an 30
opportunity to switch to the Social Security program presumingly Medicare. Yet, in his pre-
hearing affidavit attached to Respondent’s Motion for Attorney’s fees, given in March 2013,
Donald Evans testified, along the lines of Walsh’s testimony at the trial, that the new insurance
was effective January or February 2012. Thus, according to Walsh, who drafted the termination
letter, Tommy Evans termination date of January 5, 2013 had nothing to do with his receipt of 35
the new health insurance as he was eligible for it a year earlier. Rather, the record revealed
that Donald Evans’ slate of officers, including Chris Johnson, took office on January 5, 2013,
and Tommy Evans termination date of January 5, 2013, was selected because it coincided with
day the new Union officers, including Donald Evans handpicked replacement CID, took union
office. This could have been reasonably considered to be another factor relating to timing of 40
Tommy’s Evans removal and replacement as CID related to the September 2012 union election,
rather than any performance issues of Tommy Evans.
The judge stated that, in addition to the trustees, a supervisor from each of the employer
members of GSA testified regarding the difficulties they had contacting the Tommy Evans to tell 45
him a ship was coming in and that workers needed to be assigned. However, my review of the
record does not bare this finding out. Aside from the trustees, the only supervisors who testified
were Thomas and Holloway and they worked for the same employer Ports America working for
Chiquita ships. Both testified they primarily attended Wednesday shape ups. Neither
complained about not being able to reach Tommy Evans to phone in call outs as stated by the 50
judge. Their testimony was also somewhat contradictory between the two in that Thomas
JD-116-16
23
testified there were many days Tommy Evans did not show up, or came late. He testified if
Tommy Evans was not there Cuevas would do the shape up or the foreman would do it.
Thomas testified he had to do the shape up several times since 2011. Oh the other hand,
Holloway, testified he had not had any problems with Tommy Evans dispatching the men to him.
Strange to say, neither of these two witnesses testified they ever reported any problems 5
concerning Tommy Evans to the trustees or to anyone for that matter. Their names were not
mentioned by the trustees as persons who complained about Tommy Evans performance, and
there is nothing on the record to warrant a finding that their opinions or complaints were known
to the trustees on December 11, 2012, when they decided to terminate Tommy Evans. While
Thomas attributed his having to call an unnamed number of shape ups due to Tommy Evans 10
absence, there was no showing that the failure to man any particular shape up by a CID should
not have been attributed to Cuevas rather than Tommy Evans, or that both were not equally at
fault. Moreover, although their testimony was apparently cited by the judge in his opinion, it
could be reasonably argued that it played no role and was irrelevant to the decision to discharge
Tommy Evans, as the judge stated with respect to Thomas’ testimony at the trial. Rather, a 15
reasonable inference could be Respondent Plan’s need to call them as witnesses highlights the
fact that trustees conducted no independent investigation at the time they summarily discharged
a 40 year employee. Moreover, Holloway testified he had no problems with Tommy Evans
work, which serves to undercut the trustees’ unsubstantiated claims that Tommy Evans did not
work in 2012.20
The same could be said of the summaries prepared by Cuevas at the request of
Respondent Plan’s attorneys for the trial. In this regard, there is no claim that trustees
requested Cuevas opinion, or asked him to provide them with records to review before they
discharged Tommy Evans. The meaning of the analysis of Cuevas records and his overall 25
credibility was disputed by General Counsel in their brief to the judge, and on appeal to the
Board. In fact the judge found, “In her brief, counsel for the General Counsel reviewed the
documentary evidence and made a strong showing that the Charging Party performed his
dispatch functions far more often than the Respondent’s witnesses claimed.” It could have been
concluded that the most significant part of Cuevas testimony was that none of this information 30
was requested or provided to the trustees before they perfunctorily decided to terminate Tommy
Evans. It serves to highlight the fact that no investigation was made in their haste to show him
out the door. In fact, Donald Evans called the meeting and had pre-selected Tommy Evans
replacement while the trustees were not even told what the meeting was about before they
arrived.35
The judge also noted that Lamb corroborated the testimony of Donald Evans shortly
before the December 11 meeting that Lamb told Donald Evans that Lamb would no longer sign
Tommy Evans checks because of problems his employers were having reaching Tommy Evans.
The timing of this conversation Lamb and Donald Evans purportedly had so close in time to the 40
decision to terminate Tommy Evans would make it fairly significant. Yet, while Donald Evans
testified about the conversation at the trial in September 2013, he made no mention of it in his
affidavit given to the Region on March 13, 2013, which was given much closer to the event in
question. While not privy to the judge at the hearing, Lamb’s affidavit given on the same date
also makes no mention of the conversation. In fact, Lamb, whose affidavit was proffered by 45
Respondent Plan in its application for fees, testified in his affidavit concerning Tommy Evans not
answering his phone that, “I may have discussed this with the Union President Donald Evans at
some point in 2012, but I do not remember when.” Clearly, if Lamb had a conversation where
he told Donald Evans close in time to the discharge determination meeting in December 2012,
that he would no longer sign Tommy Evans checks he would have had an affirmative memory of 50
that conversation in March 2013 as opposed to ginning up a recollection of it 6 months later at
JD-116-16
24
the trial in September 2013. While the General Counsel failed to point this discrepancy in
Lamb’s affidavit to the judge at trial, the omission in Donald Evans’ affidavit was made clear to
the judge at the trial. Moreover, both affidavits affirmatively demonstrate that Respondent
Plan's witnesses never made known what was purportedly a significant conversation to the
Region prior to the issuance of complaint, which at a minimum serves to validate the Region’s 5
decision making in issuing the complaint and taking the case to trial.
The judge also stated that two employees in the bargaining unit testified about
complaints they had with Tommy Evans dispatch performance, and the judge stated “there is no
dispute that his choices of whom to dispatch were sometimes questioned even by his own son.” 10
However, a somewhat different conclusion could have been reasonably drawn from the
evidence pertaining to these findings by the judge. The record contains three written complaints
filed by Williams over Tommy Evans not selecting him for dispatch. They are dated November
1, 2011, November 27, 2012, and December 2, 2012. Williams testified he never directly
addressed his concerns with Donald Evans. He testified he did not know if Donald Evans or 15
any other officer of the union intervened on his behalf. The complaints should have worked
their way to the Seniority Board, which was composed of Respondent Plan’s four trustees.
Williams testified that as of September 12, 2013 the situation had not been corrected.
Respondent Plan put in no evidence that the Seniority Board, (Respondent Plan’s trustees) had
considered the complaints, or found them to be valid. Williams testified he has a casual 20
seniority card which means he had the lowest category of seniority. Similarly, Taylor testified he
never complained to Donald Evans about his hiring dispute with Tommy Evans, and he never
filed a formal complaint over it. While there was testimony that Glen Evans agreed with Taylor
and got into an argument with Tommy Evans over it, there was no formal complaint lodged and
no evidence on this record that Tommy Evans position was incorrect with respect to either 25
individual. With respect to Williams the opposite is true because he filed formal complaints a
substantial time period prior to the unfair labor practice trial and the Seniority Board composed
of Respondent Plan trustees failed to act on them. What perhaps is most important, none of the
trustees cited Williams or Taylor’s complaints as a reason for Tommy Evans discharge, nor was
there any evidence that they were raised or considered by the trustees at the December 11, 30
meeting. This attempt by Respondent Plan to pile on after the fact matters that not considered
by the trustees would reasonably support a finding of shifting defenses and support a
reasonable conclusion that the discharge was pretextual in nature.
The judge also mentioned Glen Evans applying for the CID position after he learned that 35
his father Tommy Evans was discharged. The judge drew an inference that Glen Evans
applying for the position somehow reflected that he approved the discharge. However, Glen
Evans’ full time position as vice-president was coming to an end. So, in fact, he needed a job.
He was neither consulted nor given the reasons for Tommy Evans’ termination. This in itself
would serve to support a conclusion that the decision about who occupied the CID position was40
election based. In this regard, Glen Evans had served as vice-president for three years and his
position included serving as a backup for shape ups to the CIDs and in fact serving as a quasi-
supervisor to them in that he attended a good portion of the shape ups, was aware of their work
pertaining to them, but was not consulted about the discharge. The failure to consult Glen
Evans concerning Tommy Evans work goes to support the perfunctory nature of the termination 45
decision.11 Glen Evans applying for a job that was being vacated when he was the most

11 In fact, Plan Trustee Schruff testified Schruff did not know who Tommy Evans’ direct
supervisor was, except to state it was not Schruff. Schruff testified that while the CIDS are
employed by Respondent Plan they report to someone at the Union. Along these lines, Plan
Administrator Walsh testified he had little firsthand knowledge of the performance of the CID’s in
JD-116-16
25
experienced person to assume that position when he was in need of a job under these
circumstances would not serve to support a conclusion that he supported the discharge
decision. Moreover, even if it could be read to support such a conclusion, he applied for the job
after the termination decision had been made so his application had no impact on the trustees’
decision to discharge Tommy Evans. Rather, if they wanted the opinion of the union official who 5
most closely worked with the CIDs as to whether Tommy Evans was performing his job, the
trustees could have asked him before they decided to discharge Tommy Evans. The failure to
do so further serves to support a finding that the decision to discharge Tommy Evans related to
the September 2012 union election, and the perfunctory nature of the decision making process
would support a conclusion that reasons advanced for the decision were pretextual.10
The record established that Tommy Evans was hired as the first CID for Respondent
Plan in 1974, at which point he was largely performing dispatch functions. In 1992, the
functions of the CID changed and they were required to keep records pertaining to shipping
manifests. At that time there were two CID’s, Tommy Evans and Oliver. After keeping these 15
records for a short period of time, Plan Administrator Walsh testified that Tommy Evans ceased
doing the reports and they were left to be done by CID Oliver. Walsh testified he complained to
Donald Evans Local 1303 president, Respondent Plan trustee, and Tommy Evans’ brother
about Tommy Evans failure to do the reports in 1992, and Donald Evans told Walsh that he
would try to get Tommy Evans to do the reports, but as long as Walsh was getting what he 20
needed that Walsh should keep his mouth shut. Walsh testified that since 1992, Tommy Evans
did not do these reports and that it fell on Oliver to complete them. Cuevas replaced Oliver as
the second CID in 2005, and Tommy Evans testified that Cuevas assumed the functions that
Oliver was performing. Thus, the judge relying on Tommy Evans not filing these reports in 2012
as justifying the discharge can also be called into question, as Respondent Plan’s officials 25
testified they were aware he had not been filing these reports since 1992. Moreover, the failure
to file these reports was not discussed at the December 11, 2012, or raised by Respondent’s
witnesses as a reason for the discharge.
Glen Evans was elected vice-president of Local 1303 in September 2009 and he served 30
in that position until January 5, 2013. Glen Evans also served as one of the two union trustees
to Respondent Plan until he was removed from that position by Donald Evans in June 2011,
over a dispute about Glen Evans’ divorce papers. Glen Evans testified that while he was vice
president he was present for the majority of the shape ups concerning the dispatching of
longshoremen. He testified CID Cuevas took ill around the latter part of 2010 or early part of 35
2011, had bypass surgery was gone for a year, at least, and when he returned he due to his
health he could not attend certain call outs. Glen Evans testified that even when Cuevas was
healthy he would travel with his baseball team and Cuevas would let Glen Evans know and they
made sure the work got done. Glen Evans testified they looked out for each other, and they
always had the ships go out on time. Glen Evans testified that only if both Tommy Evans and 40
Cuevas were missing Glen Evans would do the shape ups. Cuevas testified that due to illness
he ceased doing shape ups between February and October 2011, but for most of this period he
completed container reports pertaining to the shippers while he worked at home and
recuperated from his February surgery and illness.
45

their dispatching duties. Schruff testified if there were problems with a CID’s job performance
someone at the Union would be the one to provide them with any discipline. Schruff testified
that he did not reprimand Tommy Evans personally. Schruff testified the CID’s are hired
through the trustees under the Respondent Plan but they are they are recommended for hire by
the Union as a courtesy because the Union trustees know the people.
JD-116-16
26
Glen Evans testified while he was vice president he did not receive any complaints about
either of the CID’s performance. He testified he never talked to Schruff or Lamb, the two
employer trustees for Respondent Plan, about his father’s performance. However, Glen Evans
then corrected this testimony stating he had a conversation once with Schruff where Schruff
mentioned something about foremen not being able to get in touch with Tommy Evans. Glen 5
Evans told Schruff if there was a problem Schruff should write a letter, but Schruff responded,
“Nah.” Glen Evans testified he was a trustee for Respondent Plan at the time Schruff made the
complaint. As set forth above, Glen Evans had been removed as trustee in June 2011. Glen
Evans testified the conversation with Schruff did not occur in 2012. Thus, Glen Evans testified
he only received one complaint from the employer trustees and he estimated it occurred in 10
2011, concerning Tommy Evans, and at the time Schruff refused to act upon the complaint,
although Glen Evans suggested that he do so.
Tommy Evans testified he spoke Donald Evans about retirement when Tommy Evans
had turned 62. He testified the discussion was in 2010. Tommy Evans testified that, he did not 15
retire at that time, but that he did receive two Social Security pension checks, which he
subsequently returned. Tommy Evans testified he was going to retire, and Donald Evans talked
him out of it in that Donald Evans asked him to consider delaying retirement until such time as
he was fully qualified for a new retiree medical plan known as the MILA. Tommy Evans
explained in 2010 when Donald Evans talked him out of retirement, Tommy Evans had quit 20
because he refused to keep doing work for Cuevas in that he was drawing a check and not
coming to work. Tommy Evans testified Donald Evans was telling him that it was not his job to
worry about Cuevas not coming to work. Tommy Evans testified that Donald Evans did not tell
him that Cuevas was home recovering from open heart surgery. Tommy Evans testified his son
Glen Evans told him. Tommy Evans testified that at the time he thought Cuevas was 25
malingering because he saw Cuevas at the casino. Tommy Evans testified he complained to
Donald Evans about Cuevas being out. Cuevas testified he had open heart surgery in February
2011, and that as a consequence he was not doing dispatch work from February through
October 2011. It is likely that while Tommy Evans placed these events in 2010 that they
occurred sometime in 2011 during Cuevas recuperation period.30
Glen Evans testified he had an argument with Tommy Evans taking place either in the
latter part of 2010 or up until June 2011 when Glen Evans was removed from the Respondent
Plan’s board of trustees. Glen Evans testified he did not have a physical altercation with
Tommy Evans at the time. Glen Evans testified Donald Evans asked Tommy Evans when he 35
came in why he had not called out the men yet. Tommy Evans asked Donald Evans where is
Cuevas. Donald Evans said he is sick, you know he is sick. Glen Evans, who was in the back,
testified he came out and said you know Cuevas is sick. Donald told Glen to leave to go back in
the back. Similarly, Tommy Evans, pertaining to the incident, testified Glen Evans was saying
Cuevas was sick. Tommy Evans testified he told Glen Evans that he did not know what he was 40
talking about that Cuevas was not sick anymore. Tommy Evans testified the men had told
Tommy Evans that they had been seeing Cuevas at football games. Tommy Evans testified
when Glen was saying this, Donald Evans came in and sent Glen to the back. Tommy Evans
testified the discussion was about Cuevas not showing up for work, and that he was
complaining about Cuevas. Tommy Evans testified that during the discussion Donald Evans 45
was talking about Cuevas being out sick. Donald Evans testimony provided a different slant to
the same event. He did not mention Cuevas not showing for work had any part in the
discussion. Rather, he testified the conversation centered around Tommy Evans not showing
up for work on time. Donald Evans described the discussion between Tommy and Glen to be
more heated than they described it, and stated he had to separate the two. A reasonable 50
argument could be made that the conversation took place in 2011 during the time period Glen
JD-116-16
27
Evans testified since that was the time Cuevas testified he was missing the shape ups due to
health reasons.
Glen Evans ran a somewhat bitter campaign attempting to unseat his uncle Donald
Evans as Local 1303 president in 2012. Glen Evans identified campaign literature that he had 5
authored and distributed that depicted Donald Evans in a bad light showing 16 bulleted items
criticizing Donald Evans, including describing some of the things Donald Evans purportedly
agreed to in a negative fashion, and criticizing the way he conducted himself as union president
such as card playing daily from “11-2:30 or later,” and “Does not abandon card game and
members have to discuss personal business at card table.” Both Glen Evans and Tommy 10
Evans testified that Tommy Evans campaigned on behalf of his son by advocating Glen Evans
to retirees at Glen Evans’ request. Glen Evans also testified that Tommy Evans spoke on his
behalf to family members at a picnic on the day of the election. As the judge noted, this
testimony contradicted that which was contained in a pre-hearing affidavit given by Tommy
Evans stating he did not campaign. 15
Regardless of any contradiction between Tommy Evans’ affidavit and his testimony at
the hearing, prior to the issuance of complaint, on February 26, 2013, Respondent Plan counsel
Dummer had submitted a position statement to the Region containing the following statement:
20
Upon information and belief, during the time of T. Evans’ termination, the union was in
the midst of its election of officers. The Union President position was then held by T.
Evans’ brother, Donald Evans. T. Evans’ son, Glen Evans, ran against Donald Evans
for the position of President. Upon information and belief, T. Evans publicly supported
Glen Evans.25
Thus, the Region had a reasonable basis to conclude, notwithstanding any statements in his
affidavit to the contrary, that Tommy Evans did campaign on behalf of Glen Evans, and once
more Respondent Plan officials were aware that he did so. This conclusion was further
supported by Walsh’ testimony at trial wherein he testified that Respondent Plan’s attorneys 30
attended the December 11, 2012 meeting wherein the trustees voted to discharge Tommy
Evans. While counsel for the General Counsel erred at trial in terms of her description as to the
purpose of the position statement being offered into evidence at the trial, its submission to the
Region certainly provided a sound basis to support proceeding to trial, as well as appealing its
admission into evidence to the Board since it went to the heart of critical credibility findings by 35
the judge and well as to his determination that there was no prima facie case of an unfair labor
practice.
Glen Evans lost a close election held on September 22, 2012, by 18 votes out of the 230
that voted. Glen Evans testified Donald Evans’ successful slate for the election included Chris 40
Johnson, and Darius Johnson. Glen Evans testified he filed election objections with the local
union, then with the district office, then with the international union. He testified he also filed
with the Office of Labor-Management Standards to contest the election. He did not prevail on
his election objections. Thus, Glen Evans continued his campaign to unseat Donald Evans from
the presidency beyond the election date which could have only exacerbated any tensions 45
created by his campaign.
On November 6, 2012, at a board of trustees meeting, the trustees voted to give both
CID’s the annual container bonus, annually accorded longshoremen who worked over 700
hours that year. There was no discussion of any performance problems by the trustees during 50
that meeting pertaining to Tommy Evans, or at any prior board of trustees meetings.
JD-116-16
28
Respondent’s witnesses testified the awarding the CID’s these bonuses was a routine act, and
had nothing to do with their actual performance. On the other hand, a reasonable inference
could be drawn that if they truly had problems or concerns about Tommy Evans performance
they would have raised those concerns at that or prior trustees meetings, particularly when the
argument was being made that Tommy Evans performed no work for a year.5
Tommy Evans testified that in November 2012, Donald Evans told Tommy Evans to
come into the office, and Donald Evans told him he needed to retire that Donald Evans was not
going to sign his dam check anymore. Tommy Evans testified he was trying to respond to ask
him what was going on but Donald Evans left too quickly to give him a response. Similarly, 10
Donald Evans testified he asked Tommy Evans about his plans to retire, and Tommy Evans
stated he would not retire until the next election. Donald Evans confirmed that he told Tommy
Evans that he would not sign any more checks for him.
Donald Evans testified he called Walsh to schedule a special meeting of the board of 15
trustees of Respondent Plan in order to terminate Tommy Evans. Donald Evans at first testified
that at the December 11, 2012 meeting, Local 1303 recommended Tommy Evans be terminated
and replaced with Chris Johnson, and then he disavowed that the Union made such a
recommendation. However, Donald Evans through counsel had provided the Region with an
affidavit given on February 26, 2013 taken by Respondent Plan’s counsel. In it Donald Evans 20
stated, “The Gulfport Stevedoring Association, International Longshoremen’s Association
Container Royalty Plan, the GSA-ILA plans at one time employed union member Tommy Kirk
Evans, in the position of container inspector/dispatcher. Tommy Evans worked as one of the
container inspectors until January 2013. The Local 1303 recommended to the Board of
Trustees for GSC/GSA plans that Tommy Kirk Evans will be terminated due to complaints Local 25
1303 was receiving regarding performance issues in the position of container
inspector/dispatcher.” Donald Evans testified at the trial that at the December 11, 2012
meeting, Donald Evans recommended that Chris Johnson be hired into the position of CID to
replace Tommy Evans. Donald Evans testified he knew that Johnson would take the position
because he asked him before the meeting. 30
Thus, the Region had in its files at the time it issued complaint and proceeded to trial
evidence that Tommy Evans campaigned on behalf of his son, and through Dummer’s
admission, Respondent Plan had knowledge that he did so. The Region had evidence of
timing, in that after the election, Donald Evans questioned his brother’s retirement plans, and 35
when Tommy Evans told Donald Evans that he would not retire until the next election, Donald
Evans told him that he would stop paying his checks. Donald Evans then precipitously arranged
a trustees meeting to discuss the termination of Tommy Evans through his contact with Walsh.
Donald Evans also handpicked Tommy Evans successor, Chris Johnson who had successfully
run for office with the Union on Donald Evans’ ticket. The other Union trustee Darius Johnson 40
ran for vice president of the Union on Donald Evans’ ticket. It was clearly to Donald Evans
advantage to replace Tommy Evans whose son ran against him, because the CID position was
a high visibility position among the longshoremen in that CID selected them for dispatch. Thus,
the trustees did not consider Glen Evans, at the December 11 meeting for the CID position.
Glen Evans ran against Donald Evans and lost, although Glen Evans had direct experience 45
performing and supervising the CID dispatch functions. Rather, the trustees decided to
discharge Glen Evans’ father who recently told Donald Evans he would not retire until the next
election, impliedly stating he was supporting his son. While the decision to discharge Tommy
Evans was voted on December 11, 2013, the discharge was not effective until January 5, 2013,
the date when Chris Johnson along with the other officers on Donald Evans slate took office in 50
JD-116-16
29
their new elected positions. Thus, the Region had evidence of timing and knowledge pertaining
to Tommy Evans discharge.12
In an effort to rebut what could have been found to be the Region’s prima facie case,
Respondent Plan put on the testimony of witnesses who were not consulted about the 5
discharge decision, i.e., Thomas and Holloway; and complaints by casual employees over their
dispatch which were not mentioned by the trustees as reasons for the discharge, or with respect
to Williams even acted upon by the Seniority Board which was composed of Respondent Plans
trustees. Respondent Plan also put into evidence an after the fact summary prepared by
Cuevas, who himself was not consulted about the discharge nor his records reviewed prior to 10
the discharge. Moreover, Cuevas had been repeatedly accused of malingering to Donald
Evans with no investigation about it shown. Thus, Respondent’s true case was only built on the
self-serving declarations of the Respondent Plan trustees and the plan administrator. It has
been long held as set forth in Shattuck Denn Mining Corp. v. NLRB, 366 F.2d 466, 470 (9th Cir.
1966), “it is seldom that direct evidence will be available that is not also self-serving. In such 15
cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the
total circumstances proved. Otherwise no person accused of unlawful motive who took the
stand and testified to lawful motive could be brought to book.” Here, the testimony of the
trustees, as set forth above, was internally inconsistent, inconsistent between witnesses, and
undercut by omissions from or contradictions with statements in their pretrial affidavits. They 20
claimed long standing problems with Tommy Evans performance, but failed to document
anything or even to discuss it at prior trustee meetings. In fact, in 1992 when Walsh reported a
failure of Tommy Evans to complete certain reports to Donald Evans, Walsh was told to keep
his mouth shut by Donald Evans. While there was testimony that minutes were sparse as to
reasons for discharging Tommy Evans pertaining to the December 11, 2012 meeting and the 25
December 12, 2012 discharge letter lacked specificity in only citing “performance issues” as a
means of protecting Tommy Evans, another inference from these self-serving declarations could
be drawn. That is the minutes were sparse and the discharge letter was limited because there
was only minimal substantive discussion of the reason for discharge. In this regard, union
trustee Johnson stated in his March 7, 2013 affidavit, submitted into evidence by the Union,30
about the December 11, meeting:
One of the trustees, I am not sure which one, said they had an issue with not being able
to get in touch with Tommy when they needed him. I do not remember Donald Evans
saying any reasons why Tommy Evans should be terminated. I do not remember 35
Donald Evans discussing any performance issues he had with Tommy Evans. I do not
remember anything else that was discussed as a reason for terminating Tommy Evans.

12 The Board has also long held it is unlawful to discriminate against an employee for the
union activities of their relative. See, Coastal Sunbelt Produce, Inc., 362 NLRB No. 126, slip op.
at 28 fn. 68 (2015), and the cases cited therein. Donald Evans son’s election activities were
clearly known to Respondent Plan trustees. While this theory of the case was not articulated in
the complaint it was fully litigated, as Respondent Plan’s counsel repeatedly asked the trustees
if they voted to terminate Tommy Evans because of the election, and because Glen Evans ran
for office. See, Marshall Durban Poultry Co., 310 NLRB 68 fn. 1 (1993), enfd. in relevant part 39
F.3d 1312 (5th Cir. 1994), and Monroe Auto Equipment Co., 230 NLRB 742, 751 (1977), where
violations were found for matters not specifically alleged in the complaint but that were fully
litigated.
JD-116-16
30
It could have been reasonably concluded that Johnson’s recollection given so close in
time to the event was not faulty. Rather, he could not remember the discussion because not
much was said. Rather, Donald Evans recommended the discharge and a handpicked
replacement who had run on his election slate and the trustees concurred with minimal
discussion. The timing of Tommy Evans’ discharge was timed to when Chris Johnson, who ran 5
for office with Donald Evans, took office on January 5, 2013. Inferences of animus and
discriminatory motivation may be warranted under all the circumstances of a case; even without
direct evidence. Evidence of suspicious timing, false reasons given in defense, and the failure
to adequately investigate alleged misconduct all support such inferences. See, Visador Co., 303
NLRB 1039, 1044 (1991); Clinton Food 4 Less, 288 NLRB 597, 598 (1988); W. W. Grainger, 10
Inc. v. NLRB, 582 F.2d 1118 (7th Cir. 1978); Kidde, Inc., 284 NLRB 78 (1987); Firestone Textile
Co., 203 NLRB 89, 95 (1973). Here, Respondent offered testimony about events not
considered by the trustees at the trial warranting a conclusion of shifting positions and pretext.
Respondent also failed to contact Tommy Evans, a close to 40 year employee, and give him a
chance to defend himself, or directly raise any concerns with him. Glen Evans, who was then a 15
union officer and who worked closely with the CIDs was not consulted about Tommy Evans’
performance, nor was he considered to replace Tommy Evans. Here, through the trustees’
testimony, Respondent did not cite any incidents involving Tommy Evans past the summer of
2012. Yet, the decision to discharge him was not made until December 11, 2012, and the only
intervening event was the September 22, 2012 election. In this regard, the judge found:20
There is no dispute that the performance concerns cited by the trustees and these
witnesses had occurred for a number of years yet there is no evidence that the Charging
Party was ever warned, counseled, or otherwise informed that the Respondent Plan was
not happy with his performance. Nor did the Charging Party receive any specific 25
warning before the December 11 trustees meeting that he was about to be terminated.
***
In her brief, counsel for the General Counsel reviewed the documentary evidence and
made a strong showing that the Charging Party performed his dispatch functions far
more often that Respondent’s witnesses claimed.30
It should also be noted that the General Counsel rested their case in chief during the
third day of a four day trial. Respondent Plan made a motion of directed verdict only on the
issue of its position that the Board lacked jurisdiction over Respondent Plan. Respondent Plan
did not move for a directed verdict on the underlying merits of the discharge, although 35
Respondent Plan was aware of the inconsistency in Tommy Evans testimony at the trial to that
contained in his pre-hearing affidavit pertaining to his election activities at the time the General
Counsel rested. This failure by Respondent Plan could certainly be considered as a concession
that the General Counsel was substantially justified in taking this case to litigation. In any event,
I have concluded that the General Counsel was substantially justified in issuing complaint, trying 40
the case, and appealing the judge’s decision to the Board. In this regard, upon careful review,
with different inferences drawn a violation of the Act that Tommy Evans was discriminatorily
discharged could have been found and for that reason I recommend that Respondent’s
application for attorney’s fees be dismissed.
45
4. Respondent Plan’s litigation over whether the
Board has Jurisdiction over Respondent Plan unduly
and unreasonably protracted this litigation.
In addition to the General Counsel’s argument that its litigation position was substantially 50
justified at every stage of the hearing, the General Counsel argues in its motion to dismiss
JD-116-16
31
Respondent Plan’s EAJA application that Respondent Plan should be denied attorneys’ fees
because its “frivolous argument against jurisdiction at every stage of the proceedings” unduly or
unreasonably protracted the litigation. By contrast in its initial filing for attorneys’ fees
Respondent Plan contends it should be allowed increased fees “to reflect the skill level and
expertise of the Plan’s attorneys which were required to defend this complicated action brought 5
by the General Counsel.”
By Motion dated July 1, 2013, Respondent Plan moved to dismiss the first amended
complaint arguing lack of jurisdiction over the Respondent Plan by the Board. By letter dated
July 9, 2013, the Board’s Associate Executive Secretary issued a letter denying Respondent’s 10
Plan’s motion to dismiss as being untimely filed, stating it had to be filed under the Board’s
Rules and Regulations no later than 28 days prior to the hearing date. Since the hearing was
scheduled for July 23, 2013, the motion to be timely filed had to be filed by June 25, 2013, and it
was not filed until July 1, 2013. By letter dated July 10, 2013, Respondent Plan filed a request
with the Executive Secretary’s office to reconsider the denial of the Motion to Dismiss. 15
On July 16, 2013, Respondent Plan filed a motion to postpone the hearing then
scheduled for June 23, 2016, due to medical complications pertaining to one of the Respondent
Plan trustees who had been subpoenaed as a witness, and for whom it was represented
testimony was critical to each party. Over counsel for the General Counsel’s opposition the 20
hearing was postponed on July 17, 2013, and rescheduled to September 9, 2013.
On July 22, 2013, Respondent Plan filed a “Motion to Dismiss for Lack of Subject Matter
Jurisdiction stating the hearing had been postponed to September 9, 2013, therefore its motion
is timely under the Board’s Rules and Regulations. On July 26, 2013 counsel for the General 25
Counsel filed an opposition to the motion dismiss detailing the motions that Respondent plan
had filed until that date. In its motion to dismiss, the General Counsel described Respondent
Plan’s operations and stated that annually, the Respondent Plan provides services in excess of
$50,000 to employers by checking the tonnage of containers being transported through the Port
of Gulfport to verify the amount of contributions to Respondent Plan from those employers; 30
receiving contributions; and issuing Container Royalty checks to ILA workers. It was also noted
that Respondent Union is a labor’s organization within the meaning of the Act and annually
Respondent Plan provide services in excess of $50,000 to Respondent Union by deducting
dues from the container royalty checks and forwarding the dues to the Union. It was noted that
the evidence for calendar years 2011 and 2012 Respondent Plan deducted union dues from the 35
container royalty checks of over 100 ILA workers per year paying dues to Respondent Union in
excess of $91,000 each year. The cases cited in the General Counsel’s motion to dismiss
where in large part relied upon by the judge and the Board in finding that the Board had
jurisdiction over Respondent Plan. Thus, Respondent Plan was privy to this line of cases early
on in these proceedings. On August 2, 2013, Respondent Plan filed a reply brief in opposition 40
to the General Counsel’s filing. On September 5, 2013, Respondent Plan’s counsel filed a
motion to bifurcate proceedings into separate hearings on the issue of whether the Board may
exercise jurisdiction over Respondent Plan, and if so, whether Respondent Plan committed an
unfair labor practice as claimed pertaining to Tommy Evans.
45
By order dated September 9, 2013, the Board denied Respondent Plan’s motion to
dismiss for lack of jurisdiction. It was stated that Respondent has failed to establish that it is
entitled to judgment as a matter of law. It was noted that the denial was without prejudice to the
Respondent Plan’s right to renew its jurisdictional arguments and any request to bifurcate the
hearing to the Administrative Law Judge and to raise the jurisdictional issue before the Board on 50
any exceptions that may be filed to the judge’s decision. The trial opened on September 9,
JD-116-16
32
2013, wherein the judge denied Respondent’s motion to bifurcate the hearing and declined to
litigate Respondent Plan’s motion to dismiss on jurisdiction in a separate, but prior, proceeding
to underlying unfair labor practice allegation.
Pertaining to jurisdiction over the Respondent Plan, the consolidated complaint issued 5
on August 22, 2013, alleged the Respondent Plan has been engaged as an administrator of
employee fringe benefits with an office and place of business in Gulfport Mississippi. It asserts
the Respondent Plan provides services in the form of administering contain royalty benefits to
employees employed by Gulfport Stevedoring Association, Inc., (GSA), Ports America, Inc.
(Ports), Stevedoring Services of America, Inc. (SSA), Crowley Maritime (Crowley), Dole Food 10
Company, Inc. and Dole Fresh Fruit Co. (Dole) and Fresh North America, L.L.C. and Chiquita
Brands International, Inc. (Chiquita) who are signatories to a collective bargaining agreement
with International Longshoremen’s Local 1303 (Respondent Union or Local 1303). It is alleged
that Respondent Plan annually provides services valued in excess of $50,000 each to GSA,
Ports, SSA, Crowley, Dole and Chiquita. It is alleged that Respondent Plan purchased and 15
received at its Gulfport, Mississippi facility goods valued in excess of $5000 from points directly
outside the state of Mississippi. It is alleged that the Respondent Plan annually provides
services in the form of transferring funds from Respondent Plan to the G.S.C.-I.L.A. Welfare
Plan (Welfare Plan) in excess of $50,000 to pay the expenses of the Welfare Plan; and that
Respondent Plan annually provided services in the same amount to each of the G.S.C.-I.L.A. 20
Vacation Plan (Vacation Plan); and the G.S.C.-I.L.A. Pension Plan (Pension Plan) to pay the
expenses of those plans.
The complaint alleges that GSA is an organization engaged in providing stevedoring
services. It is asserted that GSA has been composed of various employers engaged in the sale 25
of goods or materials and whose purpose is to represent its employer members in negotiating
and administering collective-bargaining agreements with various labor organizations including
Local 1303. It is alleged that the following employers are members of GSA and have authorized
GSA to represent them in negotiating and administering collective-bargaining agreements with
Local 1303: Ports, SSA, Crowley, Dole, and Chiquita. The complaint alleges that Ports30
purchases goods and materials valued in excess of $50,000 directly from points outside of
Mississippi, sells and ships goods and materials valued in excess of $50,000 directly to points
outside Mississippi, derives gross revenues in excess of $50,000 for the transportation of freight
in interstate commerce under arrangements with and as an agent for various common carriers
which operate between various states of the United States, and derives gross revenues in 35
excess of $500,000. The complaint repeats the allegations pertaining to Ports for SSA,
Crowley, Dole and Chiquita.
The complaint alleges that the Welfare Plan provides services of administering welfare
benefits to employees employed by GSA, Ports, SSA, Crowley, Dole, and Chiquita based on 40
collective bargaining agreements between Local 1303 and the named employers. It is alleged
that the Welfare Plan provides services valued in excess of $50,000 annually to each of the
named employers, as well as to the Local 1303 union. Similar allegations are made in the
complaint with respect to the Vacation Plan, and the Pension Plan.
45
The complaint alleges that all the named entities including Respondent Plan are each
employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
Respondent Plan denied every single commerce allege in the consolidated complaint, including
the allegation that the Local 1303 is a labor organization under the Act, and denied the status of
Respondent Plan’s four trustees as agents of Respondent Plan although the evidence 50
established without dispute that it was their decision to discharge the Charging Party.
JD-116-16
33
Respondent Plan also denied the agency status of Respondent Plan’s administrator although he
authored the letter informing the Charging Party of his discharge. Respondent Plan also denied
that Donald Evans, president of Local 1303 and one of Respondent Plan’s trustees was an
Agent of Local 1303.
5
The trial began on September 9, 2013, as set forth above. While Respondent Plan
denied in its answer to the complaint that the Board has jurisdiction over Ports and SSA, when
pressed with a subpoena request from the General Counsel, Respondent Plan counsel Dummer
stated on the record “we have never changed our position. We have always stipulated to the
jurisdiction as it pertains to the SSA as well as Ports America. However, we lack standing to 10
stipulate on behalf of anyone else who’s outside our purview.” It should be noted, one of the
Respondent Plan’s trustees was employed by Ports and the other by SSA. Thus, Respondent
Plan had clear access to whether those large employers met the Board’s jurisdictional
requirement but still denied knowledge of such in its answer. Moreover, when it finally admitted
commerce information and jurisdiction pertaining to Ports and SSA, Respondent Plan was still 15
not willing to stipulate to the jurisdictional status of Dole, Chiquita, and Crowley. With respect to
Respondent Plan’s refusal to admit jurisdictional status of Dole and Chiquita, the judge was to
state, ”I don’t want to, you know, tell anybody what to do, but there’s going to be enough issues
and testimony in this case that we shouldn’t be spinning our wheels and trying to establish that
a company like Chiquita Brand and Dole Fruit are engaged in interstate commerce, ... They’re 20
well-known brand names. You know, they sell products throughout the United States and the
world. I mean, are we really going to have to have people come in and testify that these are
companies engaged in interstate commerce?” “I don’t want to have us get in a situation where
we’re having witnesses from Dole and Chiquita come in and explain the company’s business
and their revenue, and where they shipped their products, when this is something that is not 25
really going to be much in dispute. Okay?”
As set forth above, Respondent Plan denied Ports and SSA’s commerce information as
alleged in the complaint until the first day of the hearing, although Respondent Plan Trustee
Schruff testified on that date that he is the Port Manager for SSA. Similarly, Lamb testified he 30
was the general manager of the fruit division of Ports America, and was the other employer
trustee for Respondent Plan. Thus, Respondent Plan had easy access to determine the
jurisdiction of these two employers when it responded to the complaint rather than making the
General Counsel press the matter through subpoenas to be resolved at the hearing. Moreover,
as to employers Dole, Crowley, and Chiquita who were alleged as employers under the Act in 35
the complaint, the Respondent Plan received tonnage reports on a monthly basis that they
delivered to the port at issue, in that one of Respondent Plan’s functions was to keep track of
those tonnage reports to determine the royalties that each of the named employers owed to
Respondent Plan. Moreover, any legitimate doubt that Respondent’s counsel had over these
employer’s meeting the Board’s jurisdictional requirements could have been resolved by simple 40
phone call by Respondent’s counsel to these employers since Respondent Plan’s
representative was working with them in calculating what they brought into Gulfport. However,
that call was never made. Rather, the General Counsel was required to subpoena Dole and
Chiquita to procure commerce information before Respondent Plan would stipulate to their
status at the second day of the hearing, at which point Respondent Plan’s counsel followed up 45
with phone calls to those entities which could have easily be made before filing its answer to the
complaint.
In case, there is an impulse to conclude this behavior which the undersigned would view
as obstructionist, was merely coincidental, as set forth above Respondent Plan denied that 50
Local 1303 was a labor organization, although two of the officials of that Union were plan
JD-116-16
34
trustees, including Donald Evans. Moreover, Respondent Plan was distributing monies to
members of that Union, and collecting dues on behalf of some of those members from funds
received pursuant to the CBA from which the Respondent Plan was created. Respondent Plan
was also providing dispatchers to refer members of Local 1303 for work. Respondent Plan was
also created pursuant to a CBA of which Local 1303 was a party to that agreement. 5
Respondent Plan, in its answer, in addition to denying the four plan trustees were its agents
within the meaning of Section 2(13) of the Act, also denied that Victor Walsh, Respondent’s
Plan’s Administrator, was an agent of Respondent Plan, although Respondent Plan designated
Walsh as Respondent’s Plan’s representative for sequestration purposes under the judge’s
sequestration order. Thus, it is likely that the size of any subpoenas issued by the General 10
Counsel were impacted by nature of the contumacious answer to the complaint that
Respondent Plan provided, and the breath of those subpoenas were likely in large part of
Respondent Plan’s own making. In M.M. Santulli Mail Services, 281 NLRB 1288 fn. 1 (1986),
the Board noted that counsel for the respondent in its answer to the complaint denied
knowledge or information sufficient to form a belief concerning the truth or falsity of the 15
complaint allegation that the union is a labor organization within the meaning of Sec. 2(5) of the
Act. The Board cited actions taking by the respondent in support of its denial at the hearing and
noted that the judge has recommended the Board take action against counsel for the
respondent, pursuant to its Rules and Regulations, Sec. 102.21, which states that an attorney
may be subject to disciplinary action where he has willfully violated the rule that statements 20
contained in an answer to a complaint be made in good faith and not be interposed as an
attempt to delay case proceedings. In so recommending, the judge concluded that counsel for
the respondent could not have entertained a good-faith doubt about the status of the union, the
certified collective-bargaining representative of the respondent's employees. The Board stated:
25
We have carefully considered the judge's recommendation in light of the record and
agree that counsel for Respondent appears to have acted contrary to the strictures of
Sec. 102.21 of the Board's Rules and Regulations. As our attention has not been called
to other instances where counsel for the Respondent has engaged in similarly
inappropriate conduct, in the circumstances of this case the Board will limit its 30
disciplinary action to expressing our strong disapproval of such conduct and cautioning
counsel for the Respondent against similar conduct in future appearances before the
Board.
See also Graham-Windham Services, 312 NLRB 1199 fn. 2 (1993); and Worldwide Detective 35
Bureau, 296 NLRB 148 fn. 2 (1989). Here, Respondent denied multiple allegations of the
complaint such agency of its officials, labor organization status of the Union, and commerce
allegations of large employers for which its trustees were either high level officials, or for which it
regularly dealt with and in fact received tonnage reports showing large amounts of interstate
discourse. Respondent Plan’s counsels answer to the complaint and recalcitrance at trial could 40
only be seen as an attempt to obstruct and delay this proceeding for which they are certainly not
entitled to attorneys’ fees let alone increased attorneys’ fees based on an argument of
expertise.
On the second day of the hearing the following exchange occurred during questioning by 45
Respondent Plan’s counsel of Plan Administrator Walsh pertaining to the operation of the
dispatching function of Respondent Plan:
Q Does that remote answering machine system provide a service to the ILA 1303?
A I guess you could say it, but really it’s to the people, so that they can come to get 50
work.
JD-116-16
35
Q. Does it provide a service to the stevedoring companies?
A. Again, you could say it, but really it’s to the people so we can get them to work.
Q. So would you say that this is an indirect benefit at best?
A. At best—
JUDGE MARCIONESE: Well, I mean, that’s – he is your witness. It is somewhat leading 5
an argumentative as well, so I’ll sustain an objection.
MR. DUMMER: Withdrawn, Your Honor.
JUDGE MARCIONESE: I mean, it is a benefit. You can’t say the union and the
employer don’t benefit from having a dispatch system.
MR. DUMMER: The question was a service, Your Honor.10
JUDGE MARCIONESE: All right. Well, it’s a service. I mean, who would be doing it if
they didn’t do it? It is a service. They’re doing something for someone else, so--and to
say that the union and the employer aren’t receiving a service through the operation is to
meet illogical or doesn’t make— is nonsense. So go ahead. You can continue.
15
When the General Counsel rested the their case in chief on the third day of the hearing,
following exchange occurred:
Mr. Dummer: Your Honor, we would like to make a brief motion for a directed verdict on
the jurisdictional issue.20
JUDGE MARCIONESE: All right. Well, I’m going to deny that because, obviously, I
have to interpret everything in the light most favorably for the General Counsel, and I
can’t say at this point that under no circumstance could jurisdiction be established over
the Respondent Plan. I mean, clearly they may not be selling goods and receiving
goods, but they are obviously performing a service. I mean, the dispatching of workers, 25
the collection of funds and their disbursement are obviously a service they’re performing
for other entities. They’re performing a service for the employers who employ the
longshoremen and they’re performing a service for the union that dispatches the
longshoremen.
And it’s clear that the people that they’re performing services for are engaged in 30
interstate commerce, whether you are talking about Dole, Chiquita, Crowley, Ports
America or SS A, those are all clearly engaged in interstate commerce by their very
nature because they’re loading and unloading ships that are carrying cargo from other
states to the state of Mississippi and from other countries to the state of Mississippi. So
the only question is are those services sufficient in volume to bring the Plan under the 35
Board’s jurisdiction. And also, under the whole purposes and policies of the Act, would a
labor dispute at the Plan have an impact on interstate commerce, and it seems to me
that it would because if the Plan had a labor dispute and the CIDS were not able to
dispatch the men, there would be an impact on interstate commerce.
Now, I haven’t made a final judgment yet, but that’s why I’m denying your directed 40
verdict. Okay?
Thus, at one point the judge labeled Respondent Plan’s argument pertaining to lack of
jurisdiction over Respondent Plan by the Board as nonsensical. Viewed on top of its
obstructionist answer and tactics at trial which in like cases has drawn warnings of sanctions for 45
future conduct by the Board, I reject Respondent Plan’s argument for enhanced attorneys’ fees
due to an averred expertise, and I agree with General Counsel that no fees should be available
for Respondent’s assertion of lack of jurisdiction for the obstructionist way in which the
argument was mounted, and the frivolous nature in which the judge found it to be grounded. I
also find this undercuts any claims for attorneys’ fees in general as contended by the General 50
Counsel.
JD-116-16
36
5. Additional contentions of the parties
The General Counsel contends Respondent is not entitled to an EAJA award because it
failed to file financial information pertaining to affiliate plans created by the same CBA as well as 5
its failure to file financial statements for the Union. The record showed there were four plans in
all including Respondent Plan created by the CBA. The other plans were the Health and
Welfare Plan, the Vacation Plan, and the Pension Plan. All plans, including Respondent have
the same plan administrator and the same trustees. Respondent Plan decides how much of the
container royalty funds it collects on an annual basis go to each of the other plans. The General 10
Counsel also argues that Respondent Plan and the Union are joint employers of the CIDs and
therefore financial records of the Union needed to be provided to demonstrate Respondent Plan
meets EAJA requirements as an eligible employer. Here, it is asserted that the Respondent
Plan was performing dispatch functions designated to the Union by the CBA. In fact, the record
showed that the Union paid 25 percent of the CID’s wages until 2010. The testimony reveals 15
that the CIDS were reporting to Glen Evans, the then vice president of the Union, and Schruff
testified the Union supervised the CIDs. In fact, the record shows the trustees decided to
discharge Tommy Evans based on the recommendation of the Union trustees, and allowed
Union President Donald Evans to select his replacement with very little discussion about either
decision. Schruff testified the trustees deferred to the Union on such matters because they 20
knew the personnel the best. Respondent Plan’s counsel also at one point during the hearing
argued attorney-client privilege citing an alleged joint defense pact between Respondent Plan
and the Union. However, since I have recommended dismissing the EAJA application on its
merits because I have found the General Counsel was substantially justified in litigating this
matter I do not need to resolve these issues. Similarly, Respondent Plan argues that certain of 25
its submissions should be kept under seal for confidentiality purposes. Since I have dismissed
the underlying EAJA application, I do not find it necessary that these items be disclosed to the
public. Should the Board disagree with my decision, these issues can be ruled upon at that
time, if necessary.
30
On these findings of fact and conclusions of law, and, on the entire record, I issue the
following recommended13
35
40
45

13 As set forth above, the General Counsel's answer to the EAJA application also disputes
the amount of the fees and expenses sought by Respondent. I do not reach this issue because,
since the General Counsel's case was substantially justified, no fees and expenses are
awarded.
JD-116-16
37
ORDER
The EAJA application for fees and expenses filed by Respondent Plan is denied.14
5
Dated, Washington, D.C. December 9, 2016
10
Eric M. Fine
Administrative Law Judge

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 waived for all
purposes.
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