Longshoreman ILA Local 1423 (Savannah Maritime)

National Labor Relations Board - Board Decisions

Mar 30, 1992

306 N.L.R.B. 942 (N.L.R.B. 1992)

942
306 NLRB No. 191
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Additionally, the Respondent asserts that the judge’s findings are
a result of bias. After a careful examination of the entire record, we
are satisfied that this allegation is without merit.
2 We have modified the judge’s recommended Order and notice to
conform to the violations found.
International Longshoremen Association Local 1423
(Savannah Maritime Association) and Ronnie
L. Jones and Bruce Carreker. Cases 12–CB–
3388–1 and 12–CB–3388–2
March 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On October 18, 1991, Administrative Law Judge
Howard I. Grossman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Longshore-
man Association Local 1423, Brunswick, Georgia, its
officers, agents, and representatives, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Placing Ronnie L. Jones, Bruce Carreker, or
any other employee or applicant for employment on
probation or suspension, and denying them referral for
employment or otherwise discriminating against them
because they are not members of a union or because
of their protected activities.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT operate our hiring hall in a manner
that gives preferences for employment to members of
a union over nonmembers.
WE WILL NOT place Ronnie L. Jones, Bruce
Carreker, or any other employee or applicant for em-
ployment on probation or suspension, and WE WILL
NOT deny them referral for employment or otherwise
discriminate against them because they are not mem-
bers of a union or because of their protected activities.
WE WILL NOT cause or attempt to cause any em-
ployer to deny employment to, or otherwise discrimi-
nate against, Ronnie L. Jones, Bruce Carreker, or any
other employee or applicant for employment, in viola-
tion of Section 8(a)(3) of the National Labor Relations
Act.
WE WILL NOT inform employees or applicants for
employment that other employees or applicants have
been denied referrals for employment because of their
protected activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL refer Ronnie L. Jones and Bruce Carreker
for employment to positions for which they are quali-
fied on an equal and nondiscriminatory basis with
other employees and applicants.
WE WILL notify Ronnie L. Jones and Bruce
Carreker, separately and in writing, that our hiring hall
is available to them on an equal and nondiscriminatory
basis with other employees and applicants.
WE WILL make Ronnie L. Jones and Bruce Carreker
whole for any loss of earnings or other benefits either
943LONGSHOREMEN ILA LOCAL 1423 (SAVANNAH MARITIME)
1 All dates are in 1990 unless otherwise specified.
2 Testimonies of Union President Frank Scriven, and International
Officer John Mackey.
3 Testimony of Ronnie L. Jones.
4 As described hereinafter the purpose of the Savannah trip was to
protest the operation of the Brunswick hiring hall.
may have suffered because of the discrimination
against them, with interest.
INTERNATIONAL LONGSHOREMAN ASSO-
CIATION LOCAL 1423
E. Walter Bowman, Esq., for the General Counsel.
Orion L. Douglas, Esq., of Brunswick, Georgia, for the Re-
spondent.
Ronnie L. Jones, and Bruce Carreker, appearing pro se.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
original charge in Case 12–CB–3388 was filed on August 9
1990,1 by Ronnie L. Jones (Jones), and amended charges
thereafter on September 21 and December 17. The original
charge in Case 12–CB–3388–2 was filed on September 26
by Bruce Carreker (Carreker). Complaint issued on February
28, 1991, and an amended complaint on March 22, 1991. It
alleges that International Longshoreman Association Local
1423 (Respondent, or the Union) violated Section 8(b)(1)(A)
of the National Labor Relations Act (the Act) by (1) granting
seniority for hiring purposes in the use of its hiring hall only
to union members; (2) denying seniority for such use to
Jones and Carreker because they were not members; (3) plac-
ing Jones and Carreker on probation because of their pro-
tected internal union activities; (4) refusing to refer Jones and
Carreker for employment from on or about May 7 to on or
about May 21 because of there activities, and (5) placing
them on a 90-day suspension precluding use of its hiring
hall, beginning June 29, for the same reason.
The complaint also alleges that Respondent violated Sec-
tion 8(b)(1)(A) by telling employees that they would be re-
ferred out of the hiring hall only when Respondent saw fit,
that it would be futile for employees to attempt to use the
hall, and that employees should not bother coming to the hall
because they could not get a job. In addition, the complaint
alleges that the refusal to refer and the suspension of Jones
and Carreker caused employers to discriminate against them
in violation of Section 8(a)(3) of the Act, and was thus viola-
tive of Section 8(b)(2).
This case was heard before me in Brunswick, Georgia, on
May 28, 1991. Thereafter, the General Counsel and Respond-
ent filed briefs. On the entire record, including my observa-
tion of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The pleadings as amended at the hearing establish that Sa-
vannah Maritime Association (the Association) is an organi-
zation composed of employers engaged in longshore and ste-
vedoring work in and around the port of Brunswick, Georgia,
and which exists for the purpose, inter alia, of representing
its employer-members in negotiating and administering col-
lective-bargaining agreements with various labor organiza-
tions, including Respondent. During the 12-month period
preceding issuance of the complaint, the aforesaid employer-
members received revenues in excess of $50,000 from ship-
ping companies which meet a jurisdictional standard of the
Board other than indirect. The Association is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union’s Hiring Hall and Referral Practices
The pleadings as amended at the hearing establish that,
since on or about February 2, the Association and Respond-
ent have entered into and maintained a practice requiring that
Respondent be the sole and exclusive source of referrals of
employees for employment with the employer-members of
the Association.
The Union has approximately 42 members, all of them
male. Each member has lifetime seniority according to a
ranking system which accords preference to those members
who ‘‘came into the industry’’ before others. The member
receives a card with the letter A, B, C, or D, which des-
ignates his seniority. The only way to achieve seniority is to
be admitted to the Union by vote of the members.2 The last
time the Union accepted members was in about 1986 or
1987.3
Applicants for employment who are not union members
are designated ‘‘casual’’ laborers, and are granted work per-
mits. After the ‘‘header’’ has hired union members according
to their ranking, he then selects such additional help as he
may need from the casuals. All users of the hall, including
those who are not union members, pay 6 percent of their
earnings to the hall.
Jones testified that, after the admission of new members
in about 1987, the union president told him that casuals who
had worked 700 hours in the prior year would get seniority
over other casuals who had not achieved those hours, and
that their work permits were stamped to indicate this fact.
The alleged discriminatees contend that the Union did not
adhere to this plan. Union President Scriven stated that work-
ing 700 hours entitled an employee to certain ‘‘benefits,’’ not
membership and seniority. I credit Jones.
B. Objections to the Referral System and the
Trip to Savannah
1. Summary of the evidence
Jones testified that he discussed the seniority system with
Scriven on several occasions after he and 12 other casuals
had achieved 700 hours. Scriven replied that the men had no
seniority and worked only as needed.
Scriven was asked whether a group of individuals re-
quested work shortly before or on the same day that they left
for Savannah.4 He testified that they asked him for union
membership. Scriven stated initially that this conversation
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Jones stated that the shape-up took place either Monday night or
Tuesday morning, but Carreker affirmed that it was the morning fol-
lowing their return from Brunswick.
took place while he was packing to go to Miami for a nego-
tiation session. He told the individuals that he would take up
the matter with them upon his return. Scriven contended that
this was the first time anybody had asked him for member-
ship or seniority status.
The nonunion longshoremen had other objections to the
the Union’s operation of the hiring hall. Jones testified that
they were not referred for work because of the hiring of
‘‘sons-in-law and girlfriends and cousins and all sorts of
things.’’ According to Jones, Scriven told the men on numer-
ous occasions that they could not work because 10 to 20
women had to be given jobs driving new automobiles off the
ships. Alleged discriminatee Carreker testified that he com-
plained that women were being given jobs driving new cars
off the ships, but were not assigned to ‘‘throwing sacks.’’
Jones said that it was unfair to allow women to ‘‘drive Nis-
sans off a ship,’’ but not to ‘‘throw sacks of feed.’’ The
basic complaint was that the work was not distributed fairly.
As indicated, several individuals discussed their problems
with Union President Scriven on the morning of May 7, a
Monday. Later that day, 11 nonunion individuals and 2 union
members went to the hall of a sister local in Savannah, and
talked with the business agent. They also talked on a speaker
phone with John Mackey, an officer of the International.
Their object was to determine whether individuals with 700
hours of work for 3 years had seniority in work assignments.
They asked Mackey to come to Brunswick to discuss these
matters. Mackey requested their names and social security
account numbers, and initially agreed to come to Brunswick.
However, as he testified, he changed his mind about this visit
because he did not want to interfere with the local’s ‘‘auton-
omy.’’
Jones and Carreker affirmed without contradiction that
they returned from Savannah to Brunswick the same day,
and attended a shapeup the next morning.5 According to
Jones, Scriven was standing on the podium, and the men
were below him on the floor. Jones testified that Scriven said
‘‘the Savannah boys’’ might as well ‘‘step back,’’ because
they were not going to get any work until Mackey arrived.
Mackey ‘‘ran’’ Savannah, but Scriven ran Brunswick ‘‘the
way he [saw] fit.’’ The headers heard these statements ac-
cording to Jones. The union members and all the permit men
except those who went to Savannah were referred to jobs,
according to Jones. Carreker testified he returned to the
Brunswick hall on Monday evening and saw Scriven, who
‘‘made it known that he knew about our trip to Savannah.’’
At a shape up the next morning according to Carreker, Scriv-
en said that all the ‘‘Savannah boys’’ might as well ‘‘back
up,’’ because they would not get work until Scriven saw fit.
Jones and Carreker were corroborated by Deston Cohen,
a nonunion longshoreman who made the trip to Savannah.
According to Cohen, Scriven stated on two occasions that
‘‘none of the Savannah boys’’ was to be hired.
Edward Cooper, a header and a member of the Union’s
executive board, testified that he did not hear Scriven making
any such statement. However, Cohen affirmed that there
were three headers, including Cooper, and stated his belief
that a header other than Cooper was present when Scriven
made the statement attributed to him.
Jones further testified that he reported for shape up every
day that work was ‘‘on the board’’ for the following 2-
weeks. During this period, union and nonunion (work permit)
individuals were referred for jobs, except for the 11 non-
union individuals who went to Savannah.
Scriven denied knowledge that the Savannah group had
talked with Mackey, whom he identified as his superior.
Scriven also denied having knowledge of the trip to Savan-
nah on the day that it occurred, and denied being in Bruns-
wick on May 7 or 8—he was in Miami for 6 or 7 days ‘‘ne-
gotiating,’’ and did not attend a shape up in Brunswick the
morning following the trip to Savannah. Scriven also denied
making the statements attributed to him by Jones and
Carreker. Although, as indicated he admitted during prior ex-
amination by the General Counsel that a group of individuals
asked him for union membership while he was packing for
a trip to Miami, Scriven later contended that he was in
Miami on the day that the group left for Savannah, and de-
nied having any conversation with them prior to the trip.
Jones testified that the group that went to Savannah re-
tained an attorney and went with him to the Union hall on
the afternoon of Friday, May 11, the day that Mackey told
them he would arrive. As indicated, Mackey had changed his
mind about this visit, and did not appear. Jones affirmed that
Union President Scriven did not allow the group to enter the
union hall. Their attorney did go in and talk to Scriven. Ex-
cept for Scriven’s assertion that he had been in Miami for
6 or 7 days (from Monday, May 7), his testimony does not
address what happened the following Friday.
2. Factual analysis
The contradiction in Scriven’s testimony on whether he
talked with the group before the Savannah trip is obvious.
In addition, he was an evasive and argumentative witness.
Jones, Carreker, and Cohen, on the other hand, had truthful
demeanors. Accordingly, I find that Jones and perhaps other
nonunion individuals voiced their complaints to Union Presi-
dent Scriven on at least one occasion prior to May 7. Scriven
replied that they had no seniority and worked only as need-
ed. Several of these individuals again stated their concerns
to Scriven on the morning of May 7, and went to a sister
local in Savannah the same day for the purpose of
ascertaining their seniority rights. In Savannah, they talked
by speaker phone with John Mackey, an International officer
and Scriven’s superior. He promised to come to Brunswick
the following Friday.
These individuals returned to Brunswick the same day. I
do not credit Scriven’s statement that he was in Miami for
6 or 7 days beginning May 7. Instead, I accept Carreker’s
testimony that Scriven was in Brunswick on Monday
evening, and said that he knew about the trip to Savannah.
I further credit the testimonies of Jones, Carreker, and Cohen
that Scriven, at a shape up the following morning, ordered
headers not to hire any of the ‘‘Savannah boys,’’ and said
that they would not work until Scriven ‘‘saw fit.’’ I give lit-
tle weight to Cooper’s assertion that he did not hear any such
statement, since it is possible (based on Cohen’s testimony)
that Cooper was not in the hall at that time.
945LONGSHOREMEN ILA LOCAL 1423 (SAVANNAH MARITIME)
6 Testimony Deston Cohen.
7 Testimony of Bruce Carreker.
8 Testimony of Ronnie L. Jones.
9 Testimonies of Jones and Carreker.
10 Each letter announced that an executive board meeting had
taken place on June 28, that the individuals had been placed on pro-
bation on May 21, and that the further suspension was because of
‘‘incidents’’—in Jones’ case, ‘‘the incident that happen [sic] between
you and Ronald Coleman on the Union Property on 6/28/90,’’ and,
in Carreker’s case, ‘‘the incident that happen [sic] between you and
Allsouth Stevedore on 6/21/90.’’ (G.C. Exhs. 3, 5.)
11 Sec. 13(D) of the contract is a long section dealing with the ob-
ligations of the parties under various circumstances, and does not
mention ‘‘insubordination.’’ Sec. 13(E) states that neither party shall
‘‘uphold incompetency, shirking of work, insubordination or the use
of abusive language, and personnel guilty of these offenses shall be
dealt with as circumstances require.’’ A list of ‘‘misconduct of-
fenses’’ follows—pilferage, violence, intoxication, and narcotics and
substance abuse—together with their listed penalties. The penalty for
the first misconduct offense is 60 days suspension in all instances
except those of narcotics abuse, in which case it is 2 years’ suspen-
sion (G.C. Exh. 4, pp. 21–29).
12 The contract states that any one found ‘‘guilty of displaying or
knowingly possessing a dangerous weapon at any facility normally
considered a work place’’ has committed a ‘‘misconduct’’ offense.
As indicated, the penalty for a first violation is 60-day suspension.
(G.C. Exh. 4, p. 61.) Jones testified that everybody carried a pocket
knife.
None of the 11 nonunion men who went to Savannah re-
ceived referrals for 2 weeks after Scriven’s statement, al-
though work was available.
Jones, Carreker, and the other nonunion individuals who
went to Savannah hired an attorney, and went to meet Mac-
key at the union hall the following Friday, May 11. Mackey
did not arrive. Although Union President Scriven talked with
the attorney, he excluded the individuals from the hall.
C. The Executive Board Meeting, the Apologies, and
the 90-day ‘‘probation’’
On May 19 or 20, Scriven told individuals who utilized
the hiring hall that he was going to call a meeting at which
the individuals who went to Savannah could apologize and
go back to work.6 He also posted a notice on the union bul-
letin board that the 11 nonunion men who went to Savannah
were to attend an executive board meeting.7
The meeting was held on May 21; Scriven presided, and
five to six board members were present. Also present were
the 11 nonunion individuals who had gone to Savannah, but
not the two union members.8 Business Agent Walter Miller
said that the men who went to Savannah had to apologize
for ‘‘going over the President’s head, ‘‘and either Miller or
Board member John Carter recommended a fine.9
Each of the 11 nonunion individuals got up individually
and apologized. Jones and Carreker had to do so twice be-
cause, according to Carreker, they were perceived as the
ringleaders of the trip to Savannah. Jones’ apology consisted
of an acknowledgment that he might have gone about it ‘‘the
wrong way,’’ but that if he had to do it again, he would do
‘‘the same thing.’’
In addition to the requirement of apologies, all the non-
union individuals who went to Savannah were placed on a
90-day ‘‘probation.’’ Jones testified that Scriven announced
this as the result of their having gone ‘‘over his head.’’
Scriven evaded questions on whether the apologies even
took place, and denied that anybody other than Jones and
Carreker was placed on ‘‘probation.’’ I do not credit his tes-
timony. The union president acknowledged that there was no
provision in the Union’s manual for ‘‘probation,’’ which he
defined as ‘‘being watched.’’
Subsequent to the executive board meeting on May 21, the
individuals who went to Savannah received normal work re-
ferrals.
D. The 90-day Suspensions of Jones and Carreker
1. The suspensions
Under date of June 29, Scriven and Recording Secretary
Stephens sent almost identical letters to Jones and Carreker
informing them that they had been ‘‘suspended from long-
shoremen work’’ for 90 days because of certain ‘‘inci-
dents.’’10 These were stated to be ‘‘insubordination’’ accord-
ing to the ‘‘Labor Agreement: Paragraph 13-D of the Con-
tract Book.’’11 Scriven agreed that these were the only sus-
pensions which took place during his administration.
Carreker testified without contradiction that Union Vice
President W. L. Dixon and Irvin Crooks, both board mem-
bers, told him that they had no knowledge of the letter sent
to him.
2. Jones’ asserted misconduct
Although Jones testified that he was suspended in accord-
ance with the terms of the letter, he did not clearly specify
that the suspensions in fact ended after 90 days.
Jones described an incident involving Ronald Coleman,
whom he identified as Scriven’s stepson. Jones is a licensed
bondsman, and had advanced about $600 to Coleman to get
him out of jail. Coleman did not make payment, and a dis-
pute over this matter took place behind the union hall. The
record is unclear whether the incident involved merely words
or a fight. Although Jones answered leading questions about
a ‘‘fight,’’ he denied knowledge that any blows were ex-
changed, and said that the two were ‘‘arguing.’’ Coleman
went to the trunk of his car, and Jones took a pocket knife
out of his pocket.12 He testified that his intention was to
stand his ground and see what Coleman did. The latter went
into the union hall. Clifford Staley, a witness for Respondent,
testified that the two men were ‘‘arguing,’’ and that he saw
Coleman go to his car. Jones took a pocket knife out of his
trousers and opened it. Asked whether Coleman stood up at
that point, Staley replied that he remained seated, and later
went into the union hall. Scriven, without being asked, as-
serted that Jones ‘‘fought’’ Coleman, and ‘‘had a knife at his
throat to cut him.’’ Scriven did not specify the source of his
knowledge.
I reject Scriven’s version. Staley partially corroborated
Jones, and I credit their account of the incident.
Jones described other instances of conflict, one involving
himself. About 2-1/2 years before, Jones and another long-
shoreman had an ‘‘altercation,’’ and Scriven gave both of
them a week’s suspension. However, 10 minutes later, after
the other longshoreman had left, Scriven told Jones to dis-
regard the suspension because he was ‘‘too valuable to
lose.’’
Jones testified about an incident involving Robert Lambert,
a son-in-law of Scriven. A stevedore almost hit Lambert with
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Wolf Trap Foundation, 287 NLRB 1040 (1988); Cargo Han-
dlers, 159 NLRB 321 (1966).
14 Longshoremen’s ILA Local 1408 (Jacksonville Maritime Assn.),
258 NLRB 132 (1981), enfd. 705 F.2d 1549 (11th Cir. 1983); Glenn
a forklift, and Lambert drew a machete. Scriven arrived on
the scene, and took the machete away from Lambert, who
was not disciplined.
In another incident during Scriven’s administration, a gun
was drawn during an altercation between a business agent
and a foreman, but nobody was disciplined.
3. Carreker’s asserted misconduct
In response to the union suspension letter asserting an inci-
dent between Carreker and an Allsouth stevedore, Carreker
testified briefly that he could not get a load into a ship with-
out endangering the lives of men working in the ship, that
the stevedore started cursing, and that Carreker cursed in re-
turn. Later, the stevedore apologized.
Edward Cooper, a header and a member of the Union’s
executive board, described the incident in greater detail.
Carreker expressed concern about the safety of men working
below a load of paper. Accordingly, he did not place the bale
at the position specified by the stevedore. The latter cursed
Carreker and a ‘‘barrage’’ of profanity followed.
The Union elicited other evidence of Carreker’s cursing,
not mentioned in the suspension letter. Essie Kitchen,
Scriven’s secretary, testified that she heard Carreker cursing
on four occasions, principally against headers for hiring
women. Carreker contended that all he said was that, if he
had to ‘‘throw sacks,’’ the women could do the same. The
record contains evidence that profanity is customary on the
waterfront.
Carreker testified that about 25 days after receiving his let-
ter of suspension he asked Scriven for permission to appear
before the executive board. The request was granted, and
Carreker appeared before the Board about a month and a half
after the letter of suspension. He explained the incident in-
volving the Allsouth stevedore, and, the next day, Scriven
told him that he could go back to work. Carreker refused this
offer because, he said, it was not in writing as was the origi-
nal suspension. The record is unclear as to the date Carreker
received and accepted referrals thereafter.
E. Factual Summary and Legal Analysis
The evidence shows the Union operates an exclusive hir-
ing hall, and gives preference in the form of seniority to its
members in referrals for employment to employer members
of the Association. It is well established that this is violative
of Section 8(b)(1)(A) of the Act,13 and I so find. This con-
clusion also applies to Respondent’s denial of seniority to
Ronnie L. Jones and Bruce Carreker because they were not
union members.
It is also clear that Jones, Carreker, and other nonunion
applicants for employment protested the Union’s method of
operating the hiring hall. Specifically, they objected to the
seniority given to union members over nonunion applicants,
and requested membership themselves. In addition, they ob-
jected to the failure of the union president to adhere to a
promise to give nonunion applicants who had worked a cer-
tain number of hours preference over others who had not
done so. They also protested the Union’s referral of relatives
and friends of union officials, and to preference given to fe-
male applicants in referral to easier jobs. In addition to meet-
ing with the union president to voice their protest, Jones,
Carreker, 11 nonunion applicants and union members made
a trip to a sister local in Savannah, where they spoke on the
telephone with an official of the International. These were all
protected activities, and warrant a conclusion that these indi-
viduals were dissidents.
On the Union’s president’s order, the dissidents were de-
nied referral from May 8 to 21. At a shapeup on May 8, the
union president stated that the ‘‘Savannah boys’’ had to
‘‘step back,’’ and were not to be referred for jobs. There-
after, at an executive board meeting, Jones, Carreker, and the
11 nonunion members of the Savannah contingent—but not
the union members—were required to apologize (Jones and
Carreker twice), and were placed on 90-day ‘‘probation,’’ a
penalty for which there is no provision in the Union’s rules.
They were being ‘‘watched’’ according to the union presi-
dent.
Although Jones and Carreker were put on referral status
after the Executive Board meeting on May 21, they were
‘‘suspended’’ on June 29 and again denied referrals for em-
ployment. The suspension letters mention the prior ‘‘proba-
tion,’’ and cite various ‘‘incidents’’ justifying the suspension.
Two members of the executive board had no knowledge of
the suspensions.
Jones had a dispute over a debt with Ronald Coleman, the
union president’s stepson. It took place behind the union
hall. After Coleman went to his car and returned, Jones took
a pocket knife out of his pocket and opened it. Coleman re-
mained seated, and later went into the union hall. Jones was
not asked any questions about the incident.
Jones had previously been involved in an altercation where
he and another individual were suspended. However, Jones’
suspension was immediately revoked because he was ‘‘too
valuable,’’ in the opinion of the union president. In other in-
cidents, a son-in-law of the union president brandished a ma-
chete against a stevedore, and a gun was drawn in an alterca-
tion between a business agent and a foreman. Neither of
these incidents resulted in any discipline. The suspensions of
Jones and Carreker were the only suspensions during the
union president’s administration except for a week’s suspen-
sion of Jones and another stevedore, which was revoked in
Jones’ case. They exceeded in severity the penalty for more
serious offenses listed in the contract.
Carreker’s asserted misconduct involved an incident where
he believed that a stevedore’s order was unsafe. The steve-
dore initiated profanity—commonplace on the waterfront—
and Carreker responded. About a month and a half later,
Carreker appeared before the executive board and explained
the incident. The union president verbally offered to lift the
suspension the next day, but Carreker rejected the offer be-
cause, unlike the suspension, it was not in writing. It is un-
clear whether the suspension was limited to the 90-days set
forth in the letter.
The evidence thus proves that the initial refusal to refer
Jones and Carreker from May 8 until May 21 was caused by
their opposition to the Union’s hiring policies, and, accord-
ingly, was discriminatorily motivated. It is well established
that such action is violative of Section 8(b)(1)(A) and (2) of
the Act.14 The same conclusion is warranted with respect to
947LONGSHOREMEN ILA LOCAL 1423 (SAVANNAH MARITIME)
Machine Workers, 277 NLRB 658 (1985); Teamsters Local 519
(Rust Engineering), 275 NLRB 433 (1985).
15 The Union’s verbal offer to Carreker, about a month and a half
after June 29, to resume referral services shall not be deemed to toll
Carreker’s backpay period, for the reasons stated above.
the 90-day probation—discipline not even provided for in the
Union’s rules.
The record further supports an inference that the June 29
suspensions were also discriminatorily motivated. The sus-
pension letters specifically mention the prior probation im-
posed because of the discriminatees’ protected activities.
Jones’ asserted misconduct, taking a pocket knife out of his
pocket and opening it after the other disputant went to his
automobile, is minor compared to other incidents—involving
a machete and a firearm—which did not result in discipline.
Jones himself was relieved of suspension imposed by the
union president prior to Jones’ dissident activities. Carreker’s
asserted misconduct was trivial, a fact tacitly admitted by the
union president’s verbal assurance, about a month and a half
later and after another executive board meeting, that Carreker
could go back to work.
I conclude that the suspensions were discriminatorily moti-
vated. I base this on the evidence of continuing animus in
the suspension letters, the Union’s failure to investigate the
Coleman incident fully, the relatively minor nature of Jones’
actions compared to other more serious incidents involving
other workers which did not result in discipline, the fact that
Jones was released from similar discipline prior to his pro-
tected activities, the triviality of Carreker’s asserted offenses,
the fact that the 90-day suspensions exceeded in severity the
60 days provided for in the contract for much more serious
first offenses, and the fact these two suspensions, with a
minor exception, were the only ones imposed during the
union president’s administration despite other incidents in-
volving deadly weapons. Accordingly, I conclude that the
Union’s asserted reasons for the suspensions were pretextual
and that the suspensions on June 29 violated Section
8(b)(1)(A) and (2) of the Act. The record is unclear whether
they actually ended 90 days thereafter.
The illegality of Carreker’s suspension was not cured by
the Union president’s statement to him, about a month and
a half later, that he could go back to work. The offer did
not meet the Board’s test for repudiation of prior unlawful
conduct—adequate publication of the repudiation, assurances
that the unlawful conduct would not be repeated, and no pro-
scribed conduct thereafter. Passavant Memorial Area Hos-
pital, 237 NLRB 138 (1978). Respondent’s unlawful suspen-
sion of Jones probably continued after the Union president’s
statement to Carreker. Further, the offer did not include a
proposed remedy for any loss of earnings by Carreker be-
cause of the unlawful suspension.
Finally, as alleged in the complaint, the union president’s
statements at the shape up on May 8—that the ‘‘Savannah
boys’’ would not be referred for work—informed other per-
sons at the shape up that other protected activities might also
result in union reprisals. The statement was coercive and vio-
lated Section 8(b)(1)(A). Glenn Machine Works, supra, fn 14.
In accordance with my findings above, I make the fol-
lowing
CONCLUSIONS OF LAW
1. Savannah Maritime Association and its employer mem-
bers are employers engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent operates an exclusive hiring hall whereby it
refers applicants for employment with members of the Asso-
ciation.
4. Respondent gives preference to its members in the form
of seniority in its referrals for employment from its hiring
hall, and refers other applicants only after union members
have been referred, thereby restraining or coercing employees
in violation of Section 8(b)(1)(A) of the Act.
5. Beginning May 8, 1990, and continuing to May 21,
1990, Respondent refused to refer Ronnie L. Jones and Bruce
Carreker for employment because they had criticized Re-
spondent’s operation of its hiring hall, thus causing employ-
ers to discriminate against these employees within the mean-
ing of Section 8(a)(3), and thereby itself engaging in unfair
labor practices within the meaning of Section 8(b)(1)(A) and
(2) of the Act.
6. On May 21, 1990, Respondent placed Ronnie L. Jones
and Bruce Carreker on a 90-day probation because of their
above-described protected activities, thereby violating Section
8(b)(1)(A) of the Act.
7. On June 29, 1990, Respondent placed Ronnie L. Jones
and Bruce Carreker on suspension and refused to refer them
for employment for an undetermined period of time because
of their protected activities, thus violating Section 8(b)(1)(A)
and (2) of the Act.
8. On May 8, 1990, the union president told employees at
a shape up that Jones, Carreker, and other employees who
had engaged in protected activities would not be referred for
employment because of those activities, thereby restraining
or coercing the employees at the shape up within the mean-
ing of Section 8(b)(1)(A).
9. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
10. Respondent has not violated the Act except as speci-
fied.
THE REMEDY
Having found that the Respondent Union has engaged in
certain unfair labor practices, I shall recommend that it be
required to cease and desist therefrom, and to take certain af-
firmative action designed to effectuate the policies of the
Act.
I shall recommend that the Respondent be ordered to re-
sume referral services to Ronnie L. Jones and Bruce Carreker
in a nondiscriminatory manner if it has not already done so,
to notify them of this fact, and to make each of them whole
for any loss of earnings they may have suffered by reason
of its discrimination against them from May 8 to 21, 1990,
and again from June 29, 1990, to the date that it resumed
offering referral service to them,15 or, if such resumption has
not occurred, until the date that it does so, less interim earn-
ings, in the manner prescribed in F. W. Woolworth Co., 90
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6621. Interest accrued before January
1, 1987 (the effective date of the amendment), shall be computed as
in Florida Steel Corp., 231 NLRB 651 (1977).
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
18 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
NLRB 1173 (1987), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).16
I shall also recommend that Respondent be required to
makeits records available for the purpose of computation of
the amounts due the discriminatees, and to post appropriate
notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The Respondent, International Longshoreman Association
Local 1423, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Operating its hiring hall in a manner which gives pref-
erence for employment to members of a union over non-
members.
(b) Putting Ronnie L. Jones, Bruce Carreker, or any other
employee or applicant for employment on probation, and
from denying them referral for employment or otherwise dis-
criminating against them because they are not members of a
union or because of their protected activities.
(c) Causing or attempting to cause any employer to deny
employment to, or in any other manner to discriminate
against, Ronnie L. Jones, Bruce Carreker, or any other em-
ployee or applicant for employment, in violation of Section
8(a)(3) of the National Labor Relations Act.
(d) Informing employees or applicants for employment
that other employees or applicants have been denied referral
for employment because of their protected activities.
(e) In any like or related manner restraining or coercing
employees or applicants for employment in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Refer Ronnie L. Jones and Bruce Carreker for employ-
ment to positions for which they are qualified on an equal
and nondiscriminatory basis with other employees and appli-
cants.
(b) Notify Ronnie L. Jones and Bruce Carreker, separately
and in writing, that Respondent’s hiring hall will be available
to them on an equal and nondiscriminatory basis with other
employees and applicants.
(c) Make Ronnie L. Jones and Bruce Carreker whole for
any loss of earnings either may have suffered because of the
discrimination against them, in the manner set forth in the
remedy section of this decision.
(d) Maintain and, on request, make available to the Board
or its agents, for examination or copying, all work requests,
employment referrals, and any other documents and records
showing job referrals and the basis for such referrals of em-
ployees, members, and applicants, which are necessary to
compute and analyze the amount of backpay due Jones and
Carreker.
(e) Post at its business offices, hiring hall, and meeting
places copies of the attached notice marked ‘‘Appendix.’’18
Copies of the notice, on forms provided by the Regional Di-
rector for Region 12, after being signed by Respondent’s au-
thorized representative, shall be posted by Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director within within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that any allegation of the com-
plaint not found herein to be an unfair labor practice is dis-
missed.