Pacific Maritime Assn.

National Labor Relations Board - Board Decisions

Jul 28, 1992

308 N.L.R.B. 39 (N.L.R.B. 1992)

39
308 NLRB No. 6
PACIFIC MARITIME ASSN.
1 The Charging Party has requested oral argument. This request is
denied as the record, the exceptions, and the briefs adequately
present the issues and the positions of the parties.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. 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.
In his decision, the judge spelled Richard Lomeli’s name incor-
rectly as ‘‘Lomali.’’ We correct this inadvertent error.
Pacific Maritime Association and John A. Ramirez
International Longshoremen and Warehousemen’s
Union and John A. Ramirez
International Longshoremen and Warehousemen’s
Union Local 13 and John A. Ramirez
International Longshoremen and Warehousemen’s
Union Local 18 and John A. Ramirez. Cases
20–CA–22687, 20–CA–22905, 20–CB–8007, 20–
CB–8193 (formerly 21–CB–10580), 20–CB–7998,
and 20–CB–8136
July 28, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On October 16, 1991, Administrative Law Judge Jay
R. Pollack issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs,1 and the Respondent Employer As-
sociation and the Respondent Union filed answering
briefs.
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 briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Orders.
The General Counsel has excepted to the judge’s
conclusion that Local 13 did not violate its duty of fair
representation to Ramirez, the alleged discriminatee,
by its failure to oppose Ramirez’ placement on the
nondispatch list. The General Counsel argues, in effect,
that Ramirez relied to his detriment on Local 13 Sec-
retary-Treasurer Lomeli’s statement to him that he did
not need to attend the May 4, 1989 meeting of the Los
Angeles port labor relations committee and that Lomeli
would take care of ‘‘it.’’ The General Counsel con-
tends that Lomeli’s subsequent failure to tell the com-
mittee that he had excused Ramirez from attending its
May 4 meeting and to explain to the committee that
Ramirez had failed to meet the work availability re-
quirement because he was taking care of his ailing fa-
ther resulted in Ramirez being placed on the nondis-
patch list. We disagree. Initially, we note that the
record makes clear that when Lomeli told Ramirez that
he would take care of ‘‘it,’’ he was referring to Rami-
rez’ possible deregistration. Lomeli, in fact, did suc-
cessfully oppose Ramirez’ deregistration and the Gen-
eral Counsel does not contend that Local 13 violated
its duty of fair representation in this regard. As to Ra-
mirez’ placement on the nondispatch list, we agree
with the judge that even if Lomeli had explained Ra-
mirez’ absence, the result would not have been dif-
ferent. In this regard, we emphasize that Ramirez’ rea-
son for failing to meet the work availability require-
ment, the illness of a family member, was not an ex-
cuse that would have exempted Ramirez from the
availability requirement. Finally, we note that place-
ment on the nondispatch list was not punitive, but sim-
ply a device to require longshoremen to return to work
in their home ports where they were needed. Thus, Ra-
mirez would have been taken off the nondispatch list
whenever he attended a Los Angeles port labor rela-
tions committee meeting and informed it that he was
ready for work. Ramirez did not do this, however, be-
cause, as he himself testified, he never intended to re-
turn to work in Los Angeles.
ORDER
The National Labor Relations Board adopts the rec-
ommended Orders of the administrative law judge and
orders that the Respondents, the International Long-
shoremen and Warehousemen’s Union and the Inter-
national Longshoremen and Warehousemen’s Union
Local 13, Los Angeles, California, their officers,
agents, and representatives, shall take the action set
forth in the Orders.
IT IS FURTHER ORDERED that the complaint is dis-
missed as to Respondents Pacific Maritime Association
and International Longshoremen and Warehousemen’s
Union Local 18.
Jonathan Seagle, Esq., for the General Counsel.
Craig Epperson, Esq. (Lillick & Charles), of San Francisco,
California, for Respondent Employer.
Robert Remar, Esq. (Leonard, Carder, Nathan, Zuckerman,
Ross, Chin & Remar), of San Francisco, California, for
Respondent Unions.
Kevin S. Robinson, Esq., of Davis, California, for John Ra-
mirez.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Sacramento, California, on various dates, be-
tween May 1990 and February 1, 1991, and in San Fran-
cisco, California, on February 5, 1991. On June 6, 1989,
John A. Ramirez filed the charge in Case 20–CB–7998 alleg-
ing that International Longshoremen’s and Warehousemen’s
Union, Local 18 (Respondent Local 18), committed certain
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
violations of Section 8(b)(2) and (1)(A) of the National
Labor Relations Act (the Act). On June 19, 1989, Ramirez
filed the charge in Case 20–CB–8007 against International
Longshoremen’s and Warehousemen’s Union (Respondent
International). The charge in Case 20–CB–8007 was amend-
ed on September 25, 1989. Ramirez filed the charge in Case
21–CB–10580 against International Longshoremen’s and
Warehousemen’s Union, Local 13 (Local 13), on July 11,
1989. On November 17, 1989, Case 21–CB–10580 was
transferred from Region 21 to Region 20 and renumbered
20–CB–8193. Ramirez filed the charge in Case 20–CB–8136
against Respondent Local 18 on September 25, 1989.
Charges against the Pacific Maritime Association (Respond-
ent Employer or PMA), were filed in Case 20–CA–22687
and Case 20–CA–22905, on June 20, and September 25,
1989, respectively.
On October 31, 1989, the Regional Director for Region 20
of the National Labor Relations Board issued a consolidated
complaint and notice of hearing against Respondents, alleg-
ing that Respondent Unions violated Section 8(b)(2) and
(1)(A) of the Act and that Respondent Employer violated
Section 8(a)(3) and (1) of the Act. Thereafter, the Regional
Director issued nine additional separate complaints and nine
orders consolidating the cases for hearing. On January 30,
1991, the Regional Director issued the amended consolidated
complaint which formed the basis of this proceeding. Re-
spondents filed timely answers to the complaints, denying all
wrongdoing.
On February 8, 1991, I approved, and transferred to the
Board for its approval, a formal settlement agreement which
disposed of a related amended consolidated complaint in-
volving the Respondents’ joint dispatch hall in Sacramento,
California. The Board approved the settlement by a Decision
and Order dated April 12, 1991. That settlement resolved
some of the allegations involved in Ramirez’ charges. The
instant decision deals only with the allegations of Ramirez’
charges which were not resolved by the formal settlement
agreement. At issue herein is whether Respondents unlaw-
fully refused to transfer Ramirez from Los Angeles to Sac-
ramento and later refused to dispatch him in Sacramento.
Further at issue is whether certain officials of Respondent
Unions made unlawful threats to Ramirez and other employ-
ees. Finally, the consolidated complaint alleges that Respond-
ent Unions violated their duty of fair representation in failing
to defend Ramirez from lawful disciplinary action by Re-
spondent Employer.
The parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses, and having
considered the posthearing briefs of the parties, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent Employer, a California corporation, with a
principal place of business in Oakland, California, has been
an organization composed of employers engaged in business
as steamship companies, stevedore companies, and operators
of marine terminals. Respondent Employer exists, for the
purpose, inter alia, of representing its employer-members in
negotiating and administering coastwise and local collective-
bargaining agreements with Respondent International and its
local unions. During the 12 months prior to issuance of the
complaint, the employer-members of Respondent Employer
derived gross revenues in excess of $500,000 from the trans-
portation of goods and materials between ports in the State
of California and ports in the States of Oregon and Washing-
ton. Accordingly, Respondents admit and I find that Re-
spondent Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Respondent International, Respondent Local 13, and Re-
spondent Local 18, are each a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The gravamen of the amended consolidated complaint is
that the Respondent International and its affiliates, Respond-
ent Local 13 and Respondent Local 18 caused the employer-
members of the Respondent Employer to discriminate against
John Ramirez, because of his protected activities, in violation
of Section 8(b)(1)(A) and (2) of the Act. Respondent Local
18 and Respondent International are specifically charged
with causing the rejection of Ramirez’ application to transfer
from the Port of Los Angeles to the Port of Sacramento and
the revocation of Ramirez’ status as a visitor in the Port of
Sacramento for unlawful reasons. Respondent Local 13 is
charged with causing Ramirez to be displaced on the nondis-
patch list in the Port of Los Angeles. Moreover, the General
Counsel contends that representatives of Respondent Inter-
national and Respondent Local 13 issued statements which
were independently violative of Section 8(b)(1)(A).
The General Counsel argues that Respondent Employer
had notice of the discriminatory motivation of the actions of
Respondent International and its Locals and accordingly vio-
lated Section 8(a)(3) and (1) of the Act by the denial of Ra-
mirez’ transfer application and the revocation of his visitor’s
status.
Respondent Employer and Respondent Unions deny any
unlawful motive in denying Ramirez a transfer. They contend
that Ramirez was not entitled to a transfer under the collec-
tive-bargaining agreement and that Ramirez was needed in
Los Angeles. They further argue, even if an unlawful motive
had been shown, Ramirez would have been denied a transfer
in any event for legitimate business reasons. Respondents
contend that Ramirez was required to return to his job in Los
Angeles and that his subsequent discipline was as a result of
his failure to make himself available for work, a nondiscrim-
inatory job requirement.
B. Ramirez’ Work History
John Ramirez worked for approximately 12 years as a
longshoreman in Sacramento, California. He worked as a
casual employee, receiving dispatches from the dispatch hall
jointly operated by Respondent Employer and Respondent
Local 18. In August 1987, Ramirez was registered as a class
‘‘B’’ longshoreman in the Port of Los Angeles. The dispatch
hall for the Port of Los Angeles also covers the Port of Long
Beach. Respondent Local 13 has jurisdiction over Los
Angeles/Long Beach. Ramirez has been a member of Local
13 since August 1987. While working as a casual employee,
41PACIFIC MARITIME ASSN.
1 The failure to consider Ramirez and other Los Angeles long-
shoremen for the Sacramento registration was resolved by the formal
settlement agreement. The consolidated complaint, as amended dur-
ing the hearing, no longer alleges the failure to consider Ramirez,
or to include him in the Sacramento registration, as an unfair labor
practice.
Ramirez had not been a member of the Union. Ramirez went
to Los Angeles because that port offered an opportunity for
him to become a registered longshoreman. It was always his
intention to return to the Port of Sacramento. His family con-
tinued to live in the Sacramento area.
In January 1989, it appeared that the Port of Sacramento
would open registration for class ‘‘B’’ longshoremen. That
port had not registered any longshoremen in over 20 years.
This case concerns Ramirez’ attempt to obtain a permanent
transfer to Sacramento.
C. The Sacramento Registration
On January 10, 1989, the Sacramento Port Labor Relations
Committee (PLRC), met to consider the needs of the port for
an additional registration of class ‘‘B’’ longshoremen. The
employer representatives on the PLRC proposed that five
new ‘‘B’’ longshoremen be registered in 1989, three more in
1990 and three in 1991. The Employers proposed that the
program of registrations be ongoing and that the needs of the
port be continually reviewed. The Local 18 representatives
answered that the port could support more new registrations
and that the numbers proposed by the Employers were inad-
equate. It was decided that since both sides agreed to a new
registration, only the number of employees was at issue, the
question of the number of new registrations should be sub-
mitted to the Joint Coast Labor Relations Committee (CLRC)
for resolution.
On January 25, the CLRC approved a compromise of 17
additional class ‘‘B’’ longshoremen in the Port of Sac-
ramento. Fifteen new registrants were to be selected from the
‘‘current applications on file’’ according to ‘‘the highest
hours of work in covered employment for the payroll year
of 1988, up to and including 1989 year to date.’’ The re-
maining two registrants were to be class ‘‘B’’ longshoremen
in ‘‘Low Work Opportunity Ports’’ who would be offered
the opportunity to transfer under the provisions of the collec-
tive-bargaining agreement. A low work opportunity port,
under the collective-bargaining agreement, is a port where
the employees are working one half or less of their guaran-
teed hours under the pay guarantee plan.
On February 9, the Sacramento PLRC interviewed the 16
applicants with the highest number of hours under the CLRC
formula. Although the CLRC had authorized 15 new reg-
istrants, the PLRC had agreed to include both an employee
who had erroneously been excluded from the list of 15 and
the 16th ranked employee who had erroneously been in-
cluded. The mistake was a clerical error by the Employers
and therefore, the Employer and union representatives agreed
to seek permission from the CLRC to register one additional
employee. That request was granted on February 17. On
March 9, the Sacramento PLRC issued its notice listing the
names of the 16 employees selected.
Ramirez had filed an application with the Sacramento
PLRC during 1988 for registration as a class ‘‘B’’ longshore-
man. However, since he was already registered in the Port
of Los Angeles, his application was not considered as part
of the new registration.1 Further, he did not qualify as a low
work opportunity port transfer because Los Angeles was a
high work opportunity port. Los Angeles was probably the
busiest port on the West Coast.
During January 1989, Ramirez learned of the possibility of
new registrations at the Port of Sacramento. On January 27,
he requested ‘‘inclusion on the limited registration list of the
Port of Sacramento in accordance with Supplement I, Section
1.7 of Pacific Coast Longshore Contract.’’ He noted that the
Port of Sacramento was registering 15 longshoremen and re-
quested to be included. Ramirez argued that he had worked
in Sacramento for 12 years and that his father, now retired,
was a charter member of Local 18. Ramirez also argued that
because of his parents’ age, he needed to return to Sac-
ramento to help care for them.
On February 9, Ramirez attended a meeting of the Sac-
ramento PLRC and presented the written arguments that he
should be permitted to transfer or be included in the new
registration. After, the PLRC read Ramirez’ argument, Buddy
Linker, dispatcher for the joint dispatch hall, asked Ramirez
whether he wanted to bump someone off the ‘‘B’’ list. Link-
er suggested that such bumping would be unfair to the other
employees in Sacramento. Ramirez replied that he didn’t in-
tend to bump anybody, he just wanted registration for him-
self. Ramirez stated that he needed to return to Sacramento
because his parents were getting older and depended on him.
Ramirez stated his belief that the Union should grant such
a request.
On February 10, Pete Ramirez, Ramirez’ father, became
critically ill with a form of gangrene. Pete Ramirez was in
intensive care for a week and remained hospitalized for 3 ad-
ditional weeks. Ramirez later sought a transfer on a hardship
basis bottomed on his father’s illness. Ramirez had moved to
Sacramento from Los Angeles on February 4, prior to his fa-
ther’s illness. Prior to his illness, Pete Ramirez had attempted
to use his influence with the Union to secure registration in
Sacramento for his son.
On February 21, Ramirez filed an unfair labor practice
charge in Case 20–CB–7998 against Respondent Local 18
for its refusal to transfer or register him. This charge was
withdrawn on March 16, prior to Ramirez giving any evi-
dence or testimony. After June 6, Ramirez filed six charges
which led to the issuance of complaints against Respondents
International, Local 13, Local 18, and PMA.
D. Ramirez’ Transfer Request
On February 21, Ramirez wrote to Richard Lomali of
Local 13 and Charles Young of PMA in Southern California
asking for a transfer and that he be given class ‘‘A’’ registra-
tion. Ramirez had no basis for seeking class ‘‘A’’ registra-
tion. He testified that since he was seeking a transfer, he
might as well also ask for class ‘‘A’’ registration.
Ramirez informed Lomali and Young that there was ‘‘no
way’’ that he would leave his parents and return to Los An-
geles. On the next day, Ramirez wrote Jim Herman, presi-
dent of Respondent International and William Coday, presi-
dent of Respondent PMA, asking that they compel the Sac-
ramento PLRC to approve Ramirez’ transfer request. Rami-
rez sought a transfer based on, among other things, his fa-
ther’s status as a charter member of Local 18. He sent copies
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 As stated earlier, Ramirez had withdrawn the charge, prior to
giving any evidence, on March 16.
3 Respondent argues that Ramirez knew that Olvera was unable to
testify and, therefore unable to contradict Ramirez’ testimony. I have
considered these facts in making my credibility determinations. I
note that the Board may consider as evidence statements of persons
who are deceased, including testimony about such statements from
parties having a direct legal interest in the proceeding. See, e.g.,
Ann’s Laundry, 276 NLRB 269 (1985). However the Board will sub-
ject such testimony to the closest scrutiny before deciding what
weight to give it. The same principles apply here where Olvera is
unavailable to testify for medical reasons. In deciding to credit Ra-
mirez, I gave considerable weight to the fact that Ramirez made
prior consistent statements in his affidavit to Region 20, prior to
Olvera’s incapacity.
of these letters to a State Assemblyman in an attempt to use
his ‘‘political connection.’’
On February 28, Ramirez informed the Sacramento PLRC
that his father was critically ill and that he was requesting
a ‘‘hardship transfer.’’ There is no provision for a hardship
transfer under the collective-bargaining agreement. The par-
ties often referred to supplement I transfers as hardship trans-
fers.
Ramirez told the PLRC that he needed to be in Sac-
ramento to help his mother care for his father. Ramirez was
told that there was no authority for the PLRC to grant him
a transfer under supplement I. He was also advised to keep
in contact with the Port of Los Angeles PLRC to avoid
deregistration. Ramirez had received similar advice on sev-
eral occasions from Charlie Young, PMA representative on
the Los Angeles PLRC.
The PLRC informed Ramirez that he would have to
present his request for a transfer to Local 18’s executive
board and to the union membership. Ramirez requested that
he be permitted to work in Sacramento while his transfer was
under consideration. The PLRC answered that it would be
willing to allow Ramirez to work in Sacramento based on his
hardship. The PLRC informed Ramirez that it did not have
approval to transfer class B longshoremen from high work
ports such as Los Angeles. The committee members also told
Ramirez to keep in contact with the port of Los Angeles so
that he would not be deregistered.
At that same meeting Ramirez presented a written request
for a transfer from Los Angeles to Sacramento. Ramirez stat-
ed that his father had ‘‘a rare form of gangrene which almost
took his life.’’ Based on his father’s illness, Ramirez sought
a transfer into Respondent Local 18.
On March 6, Ramirez attended a meeting of Local 18’s
executive board and submitted a copy of the letter he had
submitted to the PLRC on February 28. Ramirez sought a
hardship transfer based on his father’s illness. He stated that
his mother was unable to care for his father and asked that
he be permitted to seek a transfer from the membership of
Local 18, at the meeting scheduled for the following evening.
Peterson answered that it was not necessary for Ramirez to
attend the meeting, that he (Peterson) would present the
transfer request to the membership.
Approximately 2 days later, Ramirez went to the union
hall and asked Peterson what had occurred at the member-
ship meeting. Peterson told Ramirez that he had not brought
up Ramirez’ transfer request or any other transfer because of
the possibility of litigation over the class ‘‘B’’ registration.
Peterson told Ramirez that the executive board and member-
ship refused to support his transfer because of ‘‘all the griev-
ances and possibility of litigation.’’ Approximately 15 griev-
ances had already been filed by casual employees seeking in-
clusion in the class ‘‘B’’ registration. Peterson told Ramirez
that he needed to get a transfer from the Coast CLRC rather
than the Local Union.
On March 9, the Sacramento PLRC sent a letter to Rami-
rez denying his request for a transfer. The letter stated sym-
pathy for Ramirez’ hardship. However, the PLRC stated that
it was not approving any transfer requests, whether from
class ‘‘A’’ or ‘‘B’’ registrants, except for the two transfers
from low work opportunity ports ordered by the CLRC.
On March 13, Jim Herman, president of Respondent Inter-
national wrote Ramirez indicating that he could not help Ra-
mirez obtain a transfer. Herman explained that transfers were
subject to the discretion of the port PLRC’s based on several
factors, particularly ‘‘manpower needs.’’ While Herman ex-
pressed sympathy for the senior Ramirez’ illness, he stated
that the illness was not grounds for a ‘‘permanent transfer.’’
On March 15, Ramirez filed an appeal, by letter, with the
CLRC concerning the denial of his transfer request by the
Sacramento PLRC and the failure of the PLRC to include
him in the class ‘‘B’’ registration. Ramirez grounded his ap-
peal on section 17 of the collective-bargaining agreement.
Ramirez charged that favoritism was being given ‘‘towards
a few people on the registered list of Sacramento.’’ He fur-
ther contended that past practice supported the right of a
class ‘‘B’’ registrant to apply for registration in another port.
General Counsel bases his case of unlawful motivation, in
large part, on the alleged statements of Robert Olvera, a rep-
resentative of Respondent International. Ramirez testified that
during the week of March 20, 1989, Olvera referred to him
as someone who was suing the Union. On the following day,
Ramirez provided Olvera with a copy of his withdrawal of
the unfair labor practice charge.2 According to Ramirez,
Olvera answered ‘‘You have to go kiss ass. You have to kiss
the membership’s ass. You have to take them out to dinner
or something.’’ At the time of the instant hearing, Olvera
was in a coma and, therefore, unable to testify.3
On March 20, Ramirez spoke with Richard Lomali, sec-
retary-treasurer of Respondent Local 13. Ramirez told
Lomali that he had been ‘‘pleading all week’’ attempting to
obtain a transfer to Sacramento. Lomali acknowledged that
he knew of Ramirez’ efforts pertaining to his transfer.
Lomali asked where Ramirez’ ‘‘coat tails’’ were. Lomali also
asked why his ‘‘coat tails’’ were not helping him. According
to Ramirez, Lomali said that if all five referrals (five Los
Angeles longshoremen seeking to return to the Sacramento
area) were sent to the CLRC, the CLRC could decide the
issue and enable Peterson to save face in front of Respondent
Local 18. Lomali was not called to testify and, therefore, Ra-
mirez’ testimony stands uncontradicted. No explanation was
given for the failure to call Lomali as a witness.
Shortly thereafter, Ramirez spoke again with Lomali in the
presence of Romero Hernandez, a member of ILWU Local
10. Lomali advised Ramirez that he needed to write a letter
of apology to the CLRC for going to the NLRB and that he
should send the letter to Olvera. Hernandez suggested that
the letter of apology would break down the barriers between
Olvera and Ramirez.
On March 27, Ramirez sent a letter to the CLRC with
copies to Lomali and Hernandez, in which he stated that he
43PACIFIC MARITIME ASSN.
4 Although there is no evidence that Olvera had the authority to
transfer Ramirez or to require Respondent Local 18 to permit such
a transfer, General Counsel argues that Olvera would not have made
his promises to Ramirez had he not had such authority. I find that
argument particularly unpersuasive. It is well settled that agency can-
not be established through the words of the agent. Further, it is com-
mon knowledge that agents and employees often exaggerate their au-
thority. The credible testimony from employer and union witnesses
and the documentary evidence establishes that Olvera did not have
such authority.
was sorry for any ill feelings he had caused his brother union
members by going to the NLRB. He ascribed his actions to
the feelings which resulted from his father’s illness. Ramirez
stated his belief that the CLRC would approve his transfer
so that he could care for his parents. Ramirez enclosed a
copy of his NLRB withdrawal letter with his letter to the
CLRC.
According to Ramirez, on April 4, Olvera told Ramirez
that he would make a deal with Respondent Local 18 under
which Ramirez would be transferred into Respondent Local
18 without bumping any other longshoreman. Olvera said he
would give Local 18 something in return to make the deal.
He requested a copy of Ramirez’ February 18 grievance let-
ter to bring to a meeting with representatives of Respondent
Employer. Ramirez agreed to provide Olvera a copy of the
letter. Olvera allegedly told Ramirez to be patient and stated
that Ramirez had his ‘‘commitment to get this done.’’ Olvera
promised to keep Ramirez informed of his efforts in support
of the transfer. Terry Lane, a vice president of Respondent
PMA, testified that Olvera approached him to see if anything
could be done to settle Ramirez’ transfer request. Lane told
Olvera that PMA ‘‘did not have any interest whatsoever in
transferring a longshoreman out of Los Angeles and into
Sacramento.’’ According to Lane, PMA would not have
agreed to such a transfer even if Olvera had pressed the
issue. As stated earlier, Olvera or Respondent International
could not have attained the transfer without PMA consent.
On April 13, Olvera told Ramirez that the employee was
being a pest. He told Ramirez that he would arrange a trans-
fer to Sacramento and that Ramirez had his commitment. Ra-
mirez stated that he only wanted to find out what had taken
place at Olvera’s meeting with the employer representatives.
Olvera replied that Rudy Vekich, a representative of Re-
spondent International to the CLRC, had been on vacation.
Olvera promised that the CLRC would consider all of the
pending transfer requests by the end of the month including
that of Ramirez and Michael Belgin, a longshoreman seeking
to transfer from Port Hueneme, California to Olympia,
Washington. Olvera reassured Ramirez that he would effec-
tuate the transfer.
On May 10, Ramirez called Olvera again to ask about his
transfer. Olvera again told Ramirez that the employee was
being a pest. He told Ramirez that he was trying to do the
employee ‘‘a big favor.’’ Ramirez responded by suggesting
that Olvera ‘‘walk a mile’’ in Ramirez’ shoes and experience
what it was like ‘‘to be off the payroll for a couple of
months.’’ Olvera told Ramirez that he didn’t want to hear
anymore and that Belgin deserved a transfer more than Ra-
mirez. Ramirez replied that he had worked in Sacramento for
12 years, his father was sick and that he had a hardship.
Olvera declared, ‘‘to hell with it. You do whatever you have
to do.’’4
Tyrone Neal, a Los Angeles longshoreman, testified that
he spoke with Olvera in July 1989 concerning his attempt to
transfer to Northern California. Neal asked Olvera for help
in obtaining his transfer. Olvera asked Neal whether he knew
John Ramirez. After Neal answered that he knew Ramirez,
Olvera stated that he was upset with Ramirez for having filed
charges or grievances against Olvera. At the time of this con-
versation, Ramirez had filed two grievances and two unfair
labor practice charges. Olvera asserted that he would have
helped Ramirez get into Sacramento but Ramirez ‘‘blew it’’
by filing against Olvera. Olvera told Neal that he would not
help Neal transfer but that he would help Neal at some later
time. Olvera told Neal that he should return to Los Angeles
and work toward ‘‘A’’ list status.
E. The Contract
General Counsel contends that the contract supports Rami-
rez’ position on the transfer. At the time of the transfer re-
quest, there was in effect the 1987–1990 Pacific Coast
Longshore Contract between Respondent International and
Respondent Employer. Supplement I of the contract provided
for the voluntary transfer of longshoremen between ports
under certain proscribed conditions, subject to the discretion
of the home and targeted ports’ PLRCs. Thus, supplement I
authorized a transfer such as that requested by Ramirez but
only with the approval of the PLRC of the port from which
a transfer was sought and the PLRC from the port to which
a transfer was sought. Hence, Ramirez needed employer and
union approval in Los Angeles and employer and union ap-
proval in Sacramento. The key factor in approving a transfer
would be ‘‘the work and availability record under the Pacific
Coast Longshore Agreement.’’ There was no reference to, or
provision for, a hardship transfer.
The evidence shows that the employer representatives in
Los Angeles were opposed to the transfer of longshoremen
from that port. The employers did not have sufficient num-
bers of workers and did not want to decrease that amount.
Further, the Employers knew that a number of longshoremen
had left the Sacramento area to obtain registration in Los An-
geles. The Employers did not want those workers leaving
Los Angeles where their services were needed to go to Sac-
ramento, where their services were not needed. Although this
case arises out of a complicated coastwise, multiemployer,
multiunion dispatch system, the Employers’ reasoning is sim-
ple and clear. The Employers believed they had a shortage
of workers in Los Angeles and had a surplus of workers in
Sacramento. It made no sense to allow needed workers to
transfer to Sacramento where the Employers would be re-
quired to pay guaranteed pay for work not needed or per-
formed. No class ‘‘B’’ longshoremen have ever transferred
into the Port of Sacramento. No longshoremen have trans-
ferred from Los Angeles to any other port in recent years.
Since 1985 the Port of Los Angeles has experienced a man-
power shortage.
Supplement III of the Pacific Coast Longshore Contract
permitted transfers from low work opportunity ports to other
ports. Low work opportunity ports are defined as ports where
the average hours worked are less than a specified amount.
Class ‘‘A’’ longshoremen have a preference over class ‘‘B’’
longshoreman under supplement III. For class ‘‘B’’ long-
shoremen, a low work port is defined as one where the
workers average 14 hours or less per week. Supplement III
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 This rule was explained to Ramirez at the time of his registration
in Los Angeles. The General Counsel concedes that this rule is valid
and nondiscriminatory. Further, the General Counsel concedes that
Respondent Employer lawfully enforced this rule against Ramirez in
Los Angeles. Again, while the rule arises in the context of a coast-
wise, multiemployer multiunion dispatch hall, the purpose of the rule
is very simple. The Employers want the employees to be available
for work and that if employees do not work, they can lose their jobs.
6 As of May 4, Ramirez had filed a charge against Respondent
International and Local 18, which was withdrawn prior to the giving
of any evidence. Ramirez did not file a charge against Local 13 until
July 11.
7 The form indicating that Local 13 through Lomali had permitted
Ramirez to travel to Sacramento was blank in the space reserved for
a signature by a PMA representative. Thus, the travel clearance, on
its face, was defective. PMA approval was missing.
permitted transfers from ports where the Employers were
paying guaranteed pay to employees because the port had in-
sufficient work for its longshoremen. An illustration of the
use of this provision occurred when the class B registration
was opened in Sacramento and the PLRC was required to
take two LWOP transfers. However, Ramirez was registered
in Los Angeles, definitely not a low work opportunity port,
and thus, this provision was of no help to him. This provi-
sion again demonstrates the Employers’ reasoning. The Em-
ployers were attempting to minimize the number of workers
in low opportunity ports and to increase the number available
in the port of Los Angeles.
In May 1989, the Port of Sacramento was designated as
a low work opportunity port with respect to class ‘‘B’’ long-
shoremen. This shortfall in average hours worked was caused
by the Port’s loss of sack rice ships, which was labor inten-
sive work, combined with the addition of 16 newly registered
class ‘‘B’’ longshoremen.
F. Ramirez’ Status in the Port of Los Angeles
While he was attempting to transfer to Local 18, on March
3, Ramirez sent a letter to Lomali of Local 13 describing his
father’s health problems. Ramirez stated that his transfer to
Sacramento was still pending before the Sacramento PLRC
and that he believed he was entitled to a hardship transfer.
He informed Lomali that Local 18 had agreed to permit him
to work in Sacramento while his transfer was pending. A
copy of this letter was sent to Charles Young, the PMA rep-
resentative for Southern California.
On April 18, the Los Angeles PLRC sent a letter to Rami-
rez requesting that he appear before the PLRC to discuss his
failure to make himself available for work in the port of Los
Angeles. Ramirez and other employees, who had not met the
required number of hours of work, were scheduled to appear
on May 4. Class B registrants were required to make them-
selves available for a minimum number of hours each
month.5 Ramirez and the other employees were warned that
the failure to appear might result in deregistration. The letter
advised Ramirez to contact Lomali if he had any questions
concerning the letter.
Upon receiving the April 18 letter from the Los Angeles
PLRC, Ramirez called Lomali on April 21. Lomali told Ra-
mirez that the letter was a mistake and that Lomali would
talk to Young. Lomali told Ramirez that it was not necessary
for the employee to come to the PLRC meeting and that
Lomali would take care of the matter. That same date, Rami-
rez wrote Young stating he did not understand why he had
been sent the letter concerning nonavailability for work. Ra-
mirez stated that Young knew he was working in Sacramento
because of his father’s illness. Further, Ramirez informed
Young that Lomali had promised to take care of the matter.
Ramirez expressed his belief that his transfer to Sacramento
would be awarded.
On May 1, Ramirez sent a letter to Lomali confirming
their April 21 conversation. Ramirez confirmed that Lomali
had promised that he would take care of Ramirez’ problem
with the Los Angeles PLRC. Ramirez expressed his belief
that he would be permitted to transfer to Sacramento. Rami-
rez asked that Lomali elevate him to class A status.
On May 4, the Los Angeles PLRC met and considered 27
longshoremen, including Ramirez, that had not met the rule
requiring availability for work. The employer representatives
argued that Ramirez should be deregistered for not comply-
ing with the rule. Lomali opposed deregistration of Ramirez
but agreed that Ramirez be placed on ‘‘the non-dispatch list
to all companies pending his appearance before the Commit-
tee.’’ In all 27 cases considered on May 4, PMA moved for
deregistration and Local 13 opposed. Action was taken
against four employees that night. No action was taken
against 23 employees. Seven employees were excused be-
cause they were incarcerated. However, Lomali did not in-
form the PLRC that Ramirez had failed to make himself
available because of his father’s illness in Sacramento. Gen-
eral Counsel concedes that the employer representatives
acted lawfully in enforcing the nonavailabilty rule against
Ramirez. However, General Counsel contends that Lomali
failed to defend or protect Ramirez because he filed charges
against Respondent Unions.6 The evidence establishes that
the illness of a family member has not been accepted as an
excuse. The only acceptable excuse appears to be the work-
er’s own inability to report to work.
On June 8, Lomali sent a letter to Peterson at Local 18
stating that Ramirez had the permission of Local 13 to work
in Local 18’s area for 30 days ‘‘due to personal problems.’’
As stated earlier, under the contract, Ramirez also needed the
approval of the employer representatives in Los Angeles.
While Lomali had given Local 13’s approval for Ramirez to
work in Sacramento, PMA through Young had not agreed to
allow a transfer or to permit Ramirez to work in Sacramento
while pursuing a transfer.7 This refusal was consistent with
PMA’s longstanding position that it did not have sufficient
manpower at the Port of Los Angeles. In addition, Lomali
informed Peterson that Respondent PMA was going to move
for Ramirez’ deregistration based upon his nonavailability for
work in Los Angeles. Ramirez was shown this letter on June
12. However, Lomali had told Ramirez on June 7, that PMA
was moving for his deregistration.
On June 9 Ramirez sent a letter to Lomali stating that he
had just learned of the attempt by the Los Angeles PLRC to
decertify him and arguing that there was no basis to do so.
Ramirez further argued that he was not given notice at his
home of the possible deregistration. Ramirez asked that
Lomali ‘‘send authorization to Local 18 so that I could work
in Sacramento for another 30 days.’’ He sent a copy of this
letter to Young at PMA.
On June 21, Ramirez received a reply from the Los Ange-
les PLRC. The PLRC acknowledged receipt of Ramirez’ let-
45PACIFIC MARITIME ASSN.
ter of June 9 and that Ramirez had claimed that he had not
been available for work because of his father’s illness. How-
ever, the Committee stated that ‘‘no provision exists for the
granting of leaves of absence or 30-day visiting privileges to
Class ‘‘B’’ longshoremen.’’ The Committee directed Ramirez
to return to his home port and meet availability requirements
or be subject to deregistration. Ramirez could have had him-
self removed from the nondispatch list simply by appearing
at the next Los Angeles PLRC meeting.
On June 22, Ramirez sent a letter to Lomali requesting
him to file a grievance on Ramirez’ behalf concerning the
threat of deregistration in Los Angeles. Ramirez stated that
he had permission from his home port to work in Sacramento
and submitted proof that Local 13 had agreed to permit him
to work in Los Angeles. He requested a copy of any griev-
ance filed on his behalf. Ramirez pointed out that his transfer
request was pending before the Coastwise CLRC. Finally,
Ramirez argued that it was impossible for him to return to
Los Angeles because ‘‘my family is entirely dependent upon
my presence in Sacramento during this difficult time.’’
On June 27, Ramirez filed a grievance, by letter, with the
Los Angeles PLRC. The grievance concerned the threat to
deregister him in Los Angeles. Ramirez submitted evidence
that he had permission from Local 13 to work in Sacramento
and that his appeal to the Joint Coast CLRC was still pend-
ing. He repeated his argument that it was impossible for him
to return to Los Angeles.
G. Lomali’s Unlawful Statements
Roy Risso is a Los Angeles longshoreman who arrived
with Ramirez in 1987 from Sacramento to obtain registration
in Los Angeles. In January, Risso sought permission from
Lomali to return to Sacramento for a week. Lomali replied
that Risso was ‘‘one of those boys from up North’’ that had
come down to Los Angeles and taken work away from ‘‘a
home boy.’’ Lomali referred to six such ‘‘boys from up
North’’ and said he would attempt to get them deregistered.
Risso was able to work in Sacramento after he had satisfied
the work availability requirements in Los Angeles.
During August or September, Risso asked Lomali for per-
mission to work a month in Sacramento. Lomali refused on
the ground that there was ‘‘some guy in Sacramento suing
at the time.’’ Ramirez’ charge against Respondent Local 13
had been filed on July 11. A few days after this conversa-
tion, Risso called Lomali and again asked for permission to
stay in Sacramento for a month. Lomali agreed to the request
if Respondent PMA also granted Risso permission.
H. The Removal of Ramirez from the Dispatch List
From March until early September, Ramirez was dis-
patched from the Sacramento dispatch hall jointly operated
by Respondent PMA and Respondent Local 18. In early Sep-
tember, Ramirez was informed by Buddy Linker the dis-
patcher that he could no longer be dispatched from the Sac-
ramento hall because the Los Angeles PLRC had placed him
on the nondispatch list. Linker showed Ramirez a copy of
the minutes of the Los Angeles PLRC placing Ramirez on
the nondispatch list. Linker referred Ramirez to Duane Peter-
son. Peterson told Ramirez that the matter was covered by
the coastwise collective-bargaining contract and Local 18
was bound by the ruling.
Richard Anderson, who worked as a casual longshoreman
in the Port of Sacramento, testified that in August he over-
heard a conversation between members of Respondent Local
18’s executive board members. According to Anderson, the
board members stated that the vote concerning John Ramirez
had been quick. They said that they looked through the con-
tract and found a rule under which Ramirez would not be
dispatched. The evidence establishes that a representative
from Respondent PMA had ordered that the dispatcher, a
joint employee of the Unions and Employers, not dispatch
Ramirez until he resolved matters with his home port in Los
Angeles. The uncontradicted evidence establishes that an em-
ployee placed on the nondispatch list in any port is deemed
ineligible for dispatch in any other port. Again, the principle
is simple. An employee should not be able to avoid dis-
cipline by the Employers by simply working for the very
same Employers at a different location.
The evidence establishes that the Employers initiated this
action against Ramirez. There was no union meeting or vote
on placing Ramirez on nondispatch. Under these cir-
cumstances, I am not inclined to give any weight to Ander-
son’s testimony. I am sure that Anderson overheard some
discussion of Ramirez but I am not convinced of the reliabil-
ity of what he heard. General Counsel argues that Anderson
had no reason to fabricate his testimony. I do not disagree
with that supposition, but do not have to credit his testimony
where his perceptions seem contrary to known facts. Credible
evidence establishes that there was no meeting of the
Union’s executive board or membership regarding Ramirez’
visitor status. His visitor status was revoked as a result of
orders from the PMA representative.
I. The Transfer of Michael Belgin
Michael Belgin, a class ‘‘B’’ longshoreman from Point
Hueneme, a low work opportunity port, was permitted to
transfer to the port of Olympia, Washington in January 1990.
Apparently, General Counsel argues that Belgin’s transfer es-
tablishes that hardship transfers are permitted. The facts as
set forth below do not establish that proposition. Rather the
facts of Belgin’s transfer establish that employees could
transfer from low work opportunity ports to other ports if the
joint PLRC committee of each port agreed. The problem
with Ramirez’ request was that he was seeking to transfer
from Los Angeles a high work port. The Employers would
not permit a longshoreman from Los Angeles to transfer
from a port to where he was needed to a port where he was
not needed.
Although there is no contract provision for a hardship
transfer, the General Counsel contends that Belgin received
a hardship transfer in January 1990. Belgin applied for a
transfer in November 1987. The Point Hueneme PLRC
agreed to grant a formal written clearance of Belgin’s trans-
fer request to the Olympia PLRC. Point Hueneme was a low
work opportunity port and longshoremen such as Belgin
were being paid under the pay guarantee plan for hours not
worked. However, Belgin’s transfer request was denied dur-
ing 1987.
After the transfer was denied, Belgin called Olvera and
asked why his transfer had been denied. Olvera told Belgin
that a class ‘‘B’’ longshoreman could not transfer unless he
could establish a hardship basis.
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Based on conversations with Olvera, Belgin renewed his
request for a transfer in January 1988. Belgin was recovering
from back surgery and requested a transfer based on hard-
ship. At Point Hueneme, Belgin was unable to do the phys-
ical work. However, at Olympia there was work operating
equipment that Belgin could perform in spite of the medical
problems with his back. The Olympia PLRC approved
Belgin’s second transfer request. Belgin had worked out of
that port in the past and there was work for him. However,
the Point Hueneme PLRC refused to agree to the transfer in
December 1988, and again in March 1989.
The Port of Olympia again approved Belgin’s request in
the summer of 1989. However, the Port of Point Hueneme
did not approve the transfer. Olvera spoke to several mem-
bers of that Committee concerning Belgin’s transfer request.
The record indicates that Olvera’s intervention did not aid
Belgin. Rather, the Point Hueneme officials resented Olvera
interference in their affairs. On November 13, 1989, Belgin
wrote the Point Hueneme Committee reiterating that he could
not physically perform the work available in Point Hueneme
and thus could not work. However, he could operate the
equipment in Olympia and that the PLRC in that port was
willing to take him. In addition, Belgin claimed a hardship
based on his wife’s unwillingness to live in Point Hueneme.
On December 18, 1989, the Point Hueneme PLRC agreed to
permit Belgin to transfer. On January 12, the Port of Olym-
pia PLRC approved Belgin’s transfer effective January 13,
1990, and Belgin was finally transferred.
Analysis and Conclusions
The Alleged Unlawful Statements
General Counsel argues that Respondent Local 13 violated
Section 8(b)(1)(A) of the Act when Lomali told Ramirez that
the employee had to apologize to the union officials for
going to the NLRB. The uncontradicted evidence shows that
Lomali told Ramirez to write a letter of apology to the coast-
wise CLRC and send a copy to Olvera. This conversation
took place at a time when Ramirez was attending a conven-
tion seeking to get support for his transfer. The reasonable
inference drawn from Lomali’s remarks is that the filing of
the charge had adversely affected the possibility of a transfer
and that future charges would adversely affect Ramirez’
transfer request. Accordingly, I find that by these statements
Respondent Local 13 violated Section 8(b)(1)(A). Petersburg
Associates, 239 NLRB 1091, 1097 (1978).
General Counsel alleges that Respondent International vio-
lated Section 8 (b)(1)(A) through Olvera by warning Ramirez
not to cause any trouble. On April 4 Ramirez called Olvera
to find out about his transfer request. Olvera told Ramirez
not to cause any more trouble. He then told Ramirez he
would work out a deal for a transfer. Olvera urged Ramirez
to be patient. While General Counsel alleges that the ref-
erence to not causing trouble could only mean not filing
NLRB charges I do not agree. The reference is so vague that
it could mean anything. It could simply be another way of
asking Ramirez to be patient. Further, it appears Olvera was
not in any way threatening Ramirez but rather trying to reas-
sure him that Olvera would help his effort to obtain a trans-
fer. Accordingly, I shall dismiss this allegation of the com-
plaint.
General Counsel contends that Olvera violated the Act by
telling employee Tyrone Neal that Ramirez ‘‘blew it’’ by fil-
ing charges against Olvera. Olvera told Neal that he was
going to help Ramirez get a transfer until Ramirez filed
charges against him. I find that such statements tend to
threaten employees that the filing of unfair labor practices
would result in retaliatory action. Accordingly, I find that
Respondent International violated the Act by Olvera’s state-
ments. International Packings Corp., 221 NLRB 479, 485
(1975).
According to the uncontradicted testimony of Roy Risso,
Lomali threatened to deregister the six members of Local 13
who had moved from Sacramento to Los Angeles. Such a
threat of discriminatory conduct by a union official violates
Section 8(b)(1)(A). General Teamsters Local 959 (Frontier
Transportation), 248 NLRB 743 (1980).
During late August or early September, Risso asked
Lomali for permission to work another month in Sacramento.
Lomali refused on the ground that there was some guy in
Sacramento who was suing the Union. Lomali was appar-
ently referring to the filing of a charge by Ramirez. Such a
statement threatens that Respondent Local 13 would retaliate
against employees for filing charges with the Board. Accord-
ingly, Lomali’s statements violated Section 8(b)(1)(A) of the
Act. International Packings Corp., supra.
General Counsel contends that Respondent violated the
Act when employee Richard Anderson overheard a conversa-
tion between members of Respondent Local 18’s executive
board concerning a vote on Ramirez’ removal from the dis-
patch list in Sacramento. As stated earlier, I cannot credit
Anderson’s testimony. The evidence indicates no such vote
occurred. A PMA official in Northern California ordered the
dispatcher not to dispatch Ramirez because he had been re-
moved from dispatch in Los Angeles. Such action was con-
sistent with the contract and past practice. I, therefore, cannot
find a violation based on Anderson’s testimony.
The Denial of a Transfer
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation. First, the General
Counsel must make a prima facie showing sufficient to sup-
port the inference that protected conduct was a ‘‘motivating
factor’’ in the employer’s decision. Upon such a showing,
the burden shifts to the employer to demonstrate that the
same action would have taken place even in the absence of
the protected conduct. The United States Supreme Court ap-
proved and adopted the Board’s Wright Line test in NLRB
v. Transportation Management Corp., 462 U.S. 393, 399–
403 (1983).
The Board has held that the Wright Line analysis must be
followed in hiring hall cases involving the alleged discrimi-
natory application of hiring procedures. See, e.g., Teamsters
Local 287 (Consolidated Freightways), 300 NLRB 539, 548
(1990); Polis Wallcovering Co., 262 NLRB 1336, 1340
(1982).
Ramirez filed an unfair labor practice charge on February
21 concerning the failure of Respondent International and
Local 18 to permit him to transfer to Sacramento. He had
previously filed a grievance (G.C. Exhs. 10, 47) with the
47PACIFIC MARITIME ASSN.
Sacramento PLRC seeking a transfer. On February 28, Rami-
rez requested that his transfer request be treated as a ‘‘hard-
ship transfer request.’’
The statements of Olvera to Neal that Olvera had ceased
helping Ramirez obtain a transfer because Ramirez had filed
a charge lends some support to the prima facie case. How-
ever, the evidence reveals that Olvera did not have the ability
to effectuate such a transfer.
The statements of Lomali support a finding of animus
against Ramirez for filing his grievance. Lomali told Ramirez
to apologize to the union officials and to Olvera for filing
a charge. Further, Lomali told Risso that an employee, pre-
sumably Ramirez, had sued the Union (filed a charge).
Lomali said he would not help Risso and other employees
because of Ramirez’ protected conduct. However, Lomali
was an agent of Local 13 not Respondent International or
Local 18. The evidence indicates that Lomali had little, if
anything, to do with the denial of the transfer. For purposes
of a prima facie case, I will assume that Lomali’s animus
against Ramirez for filing his charge is imputable to Re-
spondent Unions.
The burden shifts to Respondents to establish that the
same action would have taken place in the absence of the
Ramirez’ protected conduct. I find for the following reasons
that Respondents have met that burden.
Ramirez did not meet the requirements for a transfer under
supplement I of the contract. Ramirez’ home port, the Port
of Los Angeles had not agreed to his transfer. Apparently,
Lomali did not object to the transfer or to Ramirez working
in Sacramento. However, the employer representatives to the
Los Angeles PLRC did not agree to Ramirez’ transfer or
working in Sacramento. The Employers had not agreed to
allow the transfer of any employee out of Los Angeles in re-
cent times. Since 1985 the Employers believed that the Port
of Los Angeles was understaffed. Ramirez and Risso were
registered in Los Angeles for that very reason. When Olvera
approached Lane, PMA vice president, in an attempt to help
Ramirez, Lane stated that PMA was not interested in trans-
ferring an employee from Los Angeles, where he was need-
ed, to Sacramento, where he was not needed. The Employ-
er’s position against such a transfer was clear, consistent, and
nondiscriminatory. The union representatives in Los Angeles
could not approve a supplement I transfer without the Em-
ployer’s approval.
Ramirez also did not have approval from the Port of Sac-
ramento side of a supplement I transfer. The Employers be-
lieved that too many employees were being added in the new
class ‘‘B’’ registration. They were bound by the Coast CLRC
to add two supplement III transfers and the new registrations
ordered by the CLRC. However, the Employers were unwill-
ing to accept Ramirez or any other additional longshoremen.
The validity of this position was soon established as the Port
of Sacramento became a low work opportunity port within
3 months of the new registration. Thus, even if Local 18
agreed to permit Ramirez to transfer, he did not have the
requisite approval of the employer representatives of the Sac-
ramento PLRC. The Employers had never agreed to a sup-
plement I transfer into the Port of Sacramento.
It is clear that Ramirez did not meet the criteria for a
transfer under supplement III of the contract. Ramirez was
not seeking to transfer from a low work opportunity port. In
fact, Ramirez was seeking just the opposite. He wanted to go
from a high work port to a low work port.
Finally, there is no basis to conclude that Ramirez would
have been given a ‘‘hardship’’ transfer absent his filing of
the charges. First, there is no hardship provision under the
contract. Employee Belgin was able to transfer to the Port
of Olympia under supplement I during the same time period.
However, Belgin’s home port was a low work port and after
a long struggle permitted him to leave. His port of destina-
tion had sufficient work and was willing to take him. These
facts do not support Ramirez’ case. Rather they establish that
the consistent business consideration in transfers is the staff-
ing needs of both ports involved in a transfer.
Accordingly, I find that Respondents have established that
Ramirez would have been denied a transfer for legitimate
business considerations even had he not filed charges or
grievances. Further, even if the Respondent Unions were par-
tially motivated by unlawful considerations, Ramirez would
have been denied a transfer because the Respondent Employ-
ers had lawful business reasons for refusing to permit such
a transfer. Respondent Unions could not effectuate such a
transfer in the face of the lawful Employer refusal. On this
record I find Respondents did not violate the Act in refusing
to permit Ramirez to transfer to Sacramento.
The Denial of Ramirez’ Appeal
The evidence establishes that Olvera told Ramirez that he
would be able to arrange a deal to get Ramirez a transfer.
Thereafter, Olvera told Ramirez that he was no longer going
to support his transfer application. Two months later, Olvera
told Neal that he had withdrawn his support of the transfer
because Ramirez had filed charges. I found a violation in
Olvera’s statements to Neal. However, it does not follow that
an additional violation should be found.
First, the evidence establishes that Olvera must have exag-
gerated his authority when speaking to Ramirez. At most,
Olvera could affect union support for the transfer. Employer
approval was also needed and the facts establish that the Em-
ployers were not willing to let Ramirez or anyone else trans-
fer from Los Angeles to another port. Second, Olvera was
rebuked by PMA’s Lane who told Olvera in no uncertain
terms that the Employers were not interested in transferring
an employee from Los Angeles, where he was needed, to
Sacramento, where he was not needed. Third, Olvera was re-
buked when he attempted to get union support for Belgin’s
transfer.
For the same reasons that I found Ramirez would have
been denied a transfer in any event, I find that Olvera would
have ceased supporting Ramirez’ appeal in any event. At
some point it would be clear, or became clear, to Olvera that
Ramirez needed employer approval of his transfer in Los An-
geles and in Sacramento. Ramirez had support of neither and
thus could never be successful in obtaining a transfer. Fur-
ther, the weaknesses of Ramirez’ position were pointed out
in the letter of Jim Herman, president of Respondent Inter-
national, in March.
Accordingly, I find no violation in Respondent Inter-
national’s failure to grant Ramirez’ appeal.
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 All motions inconsistent with this recommended Order are here-
by denied. If no exceptions are filed as provided by Sec. 102.46 of
the Board’s Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 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.’’
The Placement of Ramirez on Nondispatch in
Los Angeles
As indicated earlier, Ramirez and all other Los Angeles
class ‘‘B’’ longshoremen were required to make themselves
available for work pursuant to a nondiscriminatory work rule.
Ramirez had gone to work in Sacramento with the approval
of Lomali. However, Ramirez did not have the approval of
the employer representatives to the Los Angeles PLRC. On
April 21, Lomali promised Ramirez that he would appear for
Ramirez at the May 4 PLRC meeting and see to it that ad-
verse action was not taken against Ramirez. The General
Counsel concedes that Respondent PMA acted lawfully in
seeking to enforce this nondiscriminatory work availability
rule against Ramirez. However, it contends that Lomali
failed or refused to protect Ramirez from the rule because
Ramirez filed charges.
Lomali attended the May 4 meeting and opposed
deregistration of Ramirez and all of the other employees for
whom discipline was proposed. Ramirez was treated the
same as the others and placed on the nondispatch list. Lomali
had not offered the fact that Ramirez was in Sacramento due
to his father’s illness. The evidence indicates that such a
presentation by Lomali would have made no difference. An
employee’s own illness would be recognized but the illness
of a family member was not accepted as an excuse.
The action taken against Ramirez by the Employers is not
challenged by the General Counsel. Ramirez had a job in
Los Angeles and was simply not showing up for work. Ra-
mirez decided to remain in Sacramento to help his parents.
However, the Employers were not obligated to excuse his ab-
sence from work in Los Angeles nor give him work in Sac-
ramento. Ramirez had longstanding notice of this rule and
had recently been told by both Employer and Union rep-
resentatives to keep in contact with his home port to avoid
such discipline.
For the same reasons that I found Ramirez would have
been denied a transfer, I find that he would have been placed
on the nondispatch list in any event. At some point, it would
become clear, to Lomali that Ramirez needed the approval
of the employer representatives to the Los Angeles PLRC to
work in Sacramento and that Ramirez never had that ap-
proval.
The Removal of Ramirez from the Dispatch List
in Sacramento
Months after Ramirez had been placed on the nondispatch
list in Los Angeles, a PMA official ordered the dispatcher
not to dispatch Ramirez. This action was consistent with the
contract and past practice. Ramirez had not fulfilled the work
availability requirements in Los Angeles and had not re-
ported to the PLRC to resolve that problem. It made no
sense for the Employers to allow him to work elsewhere. Ra-
mirez choose to go to Sacramento. However, the Employers
had never agreed to release him from his attendance obliga-
tions in Los Angeles nor to subsidize his absence by giving
him work in Sacramento.
I find that Respondent Local 18 did not violate the Act in
applying this nondiscriminatory work rule to Ramirez. Re-
spondent Local 18 and the Sacramento PLRC were bound by
the contract to enforce the discipline imposed upon Ramirez
by the Los Angeles PLRC.
THE REMEDY
Having found that Respondent International and Respond-
ent Local 13 engaged in unfair labor practices, I shall rec-
ommend that they be ordered to cease and desist therefrom
and that they take certain affirmative action to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
1. Respondent Pacific Maritime Association is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent International Longshoremen’s and
Warehousemen’s Union, and its Local Unions 13 and 18, are
labor organizations within the meaning of Section 2(5) of the
Act.
3. Respondent International through Robert Olvera violated
Section 8(b)(1)(A) of the Act by threatening that Respondent
International would retaliate against employees for filing
charges or grievances.
4. Respondent Local 13 through Richard Lomali violated
Section 8(b)(1)(A) of the Act by threatening that there would
be retaliation against employees for filing charges or griev-
ances, and by threatening union discrimination against mem-
bers from the Sacramento area.
5. The above unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
6. Except as found above, Respondents have not violated
the Act as alleged in the complaint. The complaint should be
dismissed as to Respondent Local 18 and Respondent PMA.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
A. Respondent International Longshoremen’s Union, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Threatening retaliation against employees for filing
charges with the NLRB or filing grievances.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of any rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its offices in Northern and Southern California
copies of the attached notice marked ‘‘Appendix A.’’9 Cop-
ies of the notice, on forms provided by the Regional Director
for Region 20, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
49PACIFIC MARITIME ASSN.
10 See fn. 9, above.
days in conspicuous places including all places where notices
to employees 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.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent Inter-
national has taken to comply.
B. Respondent International Longshoremen’s Union Local
13, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Threatening retaliation against employees for filing
charges with the NLRB or filing grievances.
(b) Threatening union discrimination against members of
the Union from a different geographic location.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of any rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its offices in Southern California, copies of the
attached notice marked ‘‘Appendix B.’’10 Copies of the no-
tice, on forms provided by the Regional Director for Region
20, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(b) Notify the Regional Director in writing within 20 days
from this Order what steps Respondent Local 13 has taken
to comply.
APPENDIX A
NOTICE TO EMPLOYEES
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 vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten employees with retaliation for fil-
ing charges with the NLRB or for filing grievances.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in any of your rights set forth above
which are guaranteed by the Act.
INTERNATIONAL LONGSHOREMEN AND
WAREHOUSEMEN’S UNION
APPENDIX B
NOTICE TO EMPLOYEES
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 vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten employees with retaliation for fil-
ing charges with the NLRB or for filing grievances.
WE WILL NOT threaten to discriminate against union mem-
bers from different geographic areas.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in any of your rights set forth above
which are guaranteed by the Act.
INTERNATIONAL LONGSHOREMEN AND
WAREHOUSEMEN’S UNION LOCAL 13