United Marine Division, Local 333

National Labor Relations Board - Administrative Judge OpinionsMay 14, 2007

29-CB-013237 (N.L.R.B. May. 14, 2007)

JD(NY)–23–07 New York, NY UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES NEW YORK BRANCH OFFICE LOCAL 333, UNITED MARINE DIVISION, INTERNATIONAL LONGSHOREMEN ASSOCIATION, AFL-CIO and Case No. 29-CB-13237 JAY DADY, An Individual Ashok C. Bokde, Esq., Brooklyn, NY, for the General Counsel Bryan C. McCarthy, Esq., (O’Conner & Mangan, P.C.), New Rochelle, NY, for the Respondent Aislinn McGuire, Esq., (Kauff, McClain & McGuire), New York, NY, for Circle Line Sightseeing Yachts, Inc. DECISION Statement of the Case HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on January 24 and 25, 2007 1 in Brooklyn, New York. A Complaint and Notice of Hearing issued on November 16, filed by an individual, John Dady, alleging that Local 333, United Marine Division, International Longshoremen Association, AFL-CIO, herein called Respondent, or the Union, refused to refer Dady for hire, in violation of Section 8(b)(1)(A) and refused to process a grievance filed by Dady, in violation of Section 8(b)(1)(A). Respondent filed an Answer to the Complaint denying the allegations set forth therein. On the entire record, including my observations and demeanor of the witnesses, and after considering the briefs filed by Counsel for General Counsel and Respondent, I make the following: Findings of Fact At all material times, Circle Line Sightseeing Yachts, Inc., herein called the Employer or Circle Line, has provided sightseeing cruises around New York City and in New York Harbor. During the past twelve month period, which period is representative of its annual operations in general, the Employer, in the course and conduct of its business derived gross annual revenues valued in excess of $500,000, and purchased and received goods and materials valued in excess of $5,000 from entities located outside the State of New York. It is admitted that at all material times, the Employer has been engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. It is also admitted that at all material times, Respondent has been a labor organization within the meaning of Section 2(5) of the Act. 1 All dates are in 2006, unless otherwise indicated. JD(NY)–23–07 5 10 15 20 25 30 35 40 45 50 2 It is admitted that at all material times, the following individuals have held the positions set forth next to their respective names, and are agents and supervisors of Respondent within the meaning of Section 2(11) of the Act. John Healy President Paul Roura Hiring Hall Agent Ron Tucker Delegate Chris Larsen Secretary/Treasurer It is admitted that the following employees of the Employer, herein called the Unit, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by the Employer on vessels owned or operated by the Employer in the Port of New York and used principally as sightseeing, passenger, and excursion boats. It is admitted that at all material times, Respondent has been designated as the exclusive collective bargaining representative of the Unit. Such recognition has been embodied in successive collective bargaining agreements between Respondent and the Employer covering the terms and conditions of employment of the Unit, the most recent of which is effective by its terms from December 1, 2005, to November 30, 2008. At all material times, by virtue of Section 9(a) of the Act, Respondent has been the exclusive collective-bargaining representative of the Unit. Article 1, Section 2(A) of the current collective bargaining agreement states as follows: When a vacancy exists in the deck and engine departments, the Employer will promptly notify the Union of the vacancy in order that the Union may have the opportunity of referring qualified applicants to the Employer. The Union may consider that a vacancy has not been filled until the Employer notifies the Union of the name of the person who has been employed. The Union represents that it will conduct its hiring halls in a manner that will not violate the National Labor Relations Act. Referrals are governed by the Union’s hiring hall rules, referred to as the “shipping rules”. Rule 5 states, “subject to prior notice, a registration card shall be valid for ninety (90) days. A card expiring Saturday, Sunday, or a holiday shall remain valid for the next regular shipping day.” Jay Dady has been a member of Respondent since 1968, and has held a variety of positions with Respondent including Secretary/Treasurer, and the President of Respondent from March 2005 until September 23, 2005. There was an election sometime between March 2005 and September 23. Initially, Dady won the election, but shortly thereafter there were numerous changes and election challenges filed by John Healy who was running for president of the Union. Eventually, there was a second election, which elected Healy as president. Shortly thereafter, the Executive Board, which Healy now controlled, charged Dady for not paying an unused airplane credit. Eventually, this charge was dismissed. Dady credibly testified that Healy, after the dismissal of the above charges threatened Dady that he was going to file charges against Dady for conspiracy and racketeering. There is no evidence that such charges were filed. However, it is clear, and I find that there was mutual and intense animosity JD(NY)–23–07 5 10 15 20 25 30 35 40 45 50 3 between Dady, Healy, and Healy’s appointees, including Paul Roura, who was appointed as the hiring hall agent, and one of Healy’s strong supporters. On September 27, 2005, Dady registered for work as an oiler and/or deck hand. Such registration took place after the election.2 There is a registration book kept in the hiring hall administered by the hiring hall agent. In this case Paul Roura began his duties as hiring hall agent in late September, 2005. Referrals of applicants to the Circle Line began in early spring. The only referrals relevant to this case were referrals to Circle Line as oilers or deckhands. Roura testified that the names of applicants are placed in the hiring hall registration book, and the applicant gets a registration card with the registration date. There is no specific book for Circle Line. Roura testified that when he took over the hiring hall in late September 2005 he applied the Union’s shipping rules which include Rule 5, the 90 day rule, which states in relevant part: “Subject to change or prior notice a registration card shall be valid for 90 days” from the date of registration. Roura further testified that he applied the 90 day rule to all applicants. When asked specifically how he refers applicants on the Circle Line, he goes back in the registration book to check the registration and applies the 90 day rule. However, Roura admitted that he referred Titilda Farorode, Paul Roura, Jr., Ray Rainey, who signed the registration book, and Jefferson White, who never signed the register, all whose registrations were over 90 says; in fact, Dady was the first to register. When Counsel for General Counsel questioned why these applicants were referred, Roura testified with a sarcastic smile, that it was a mistake on the math. This does not apply to White, who never registered. I find such testimony negatively as to his credibility. There is no evidence that any applicants except Dady were denied referral because their registration day was over 90 days, a violation of Rule 5. Dady credibly testified that he went to the Union Hall and paid his union dues to Roura each month beginning in October 2005, as set forth below, I find Dady to be a credible witness as set forth below. Beginning in April 2006, when Circle Line hires employees, Dady credibly testified that he asked Roura for a referral. Roura told him Circle Line wasn’t hiring oilers. Dady, credibly told him he had also registered as a deck hand. In this connection, Dady’s registration in September 2005 listed him as a deck hand and oiler. Dady also testified he asked Roura in June and July for referrals . Each time Roura told Dady that Circle Line wasn’t hiring any oilers, and each time Dady told him he was also a deck hand. Dady was not told by Roura that his registration was in excess of 90 days. Roura testified that he did not know that Dady was registered until sometime in August 2006, at a time when the Circle Line was no longer hiring. Circle Line’s season ends after the Labor Day weekend. 2 I find it immaterial as to whether Dady followed the 90 day rule, during his presidency. The issue in this case is whether Respondent’s hiring hall representative followed the 90 day rule in a non discriminatory manner. JD(NY)–23–07 5 10 15 20 25 30 35 40 45 50 4 I find such testimony incredible. Dady makes his living by working jobs at Circle Line as an oiler or deck hand. I also find that Roura’s referrals to Farorode, Roura Jr., Rainey and White, who never registered, while refusing to refer Dady who was registered, adversely reflects his credibility and also establishes animus. Roura testified that sometime in August 2006, Larsen, secretary/treasurer, told him that Dady was complaining about not being referred. Larsen testified he told Dady he would check into Dady’s complaint that he wasn’t being referred as an oiler. Larsen also testified that Roura told him there were no job referrals for oilers. As set forth above, Dady registered as an oiler and a deckhand. I find Larsen and Tucker are not credible witnesses. Dady was registered as an oiler and deckhand, and testified he would take either job available. Both Larsen and Tucker were officers in Healy’s administration, and as set forth above there was intense animus by the Healy administration toward Dady. I find that Dady is a credible witness. He answered all questions put to him without hesitation. His demeanor was excellent. He was calm and responsive throughout direct and cross-examination. Moreover, his cross-examination was essentially consistent with the direct examination. Counsel for Respondent contends that Dady was not a credible witness because in connection with the L17-2 Labor Organization Annual Report consisting of 12 pages, in the years 2003 and 2004 signed by Charles M. Arnette as president and Dady as Treasurer in 2003, and by Charles Chilran as president and by Dady as Treasurer in the 2004 report had a few minor inaccuracies. Dady testified that the Union’s accountant and attorney looked over the reports and Dady assumed they were accurate. I find no merit to Respondent’s attorney’s contention. Respondent attorney also contends Dady is not a credible witness because he took an oath as an officer of the Union 5 times that he would uphold the constitution and by-laws of the Union. The constitution and by-laws consist of 31 pages of very small type, covering 35 sections with various sub sections, Dady testified that to the best of his knowledge, the 90 day referral rule was not enforced. Moreover, as set forth above, I find that Dady’s knowledge on enforcement of Rule 5 is irrelevant. I find Respondent attorney’s contentions do not adversely affect Dady’s credibility. I find Dady to be a credible witness. Analysis and Conclusion Respondent’s Refusal to Refer Dady The Board has consistently held that a union violates Section 8(b)(1)(A) and (2) of the Act when it refuses an applicant, pursuant to its hiring hall procedures, because of his intra- union activities, including running for union office. See Local One Amalgamated Lithographers of America (Metropolitan Lithographers Assn.), 336 NLRB 801, 831, (2001); Plumbers Local 533 (Plumbing Contractors), 271 NLRB 1361, 1371 (1984). In Plumbers Local 533, the union at issue refused to refer three individuals who had supported the losing candidate in a union election. There was no doubt that the three were JD(NY)–23–07 5 10 15 20 25 30 35 40 45 50 5 qualified to work, some having worked for approximately 20 years. The union referred other individuals, including a few that were referred twice, but stated that it had refused to refer the individuals because one had quit a job prematurely, another had performed unsatisfactorily and allegedly had been drinking on the job, and a third because the union did not believe he was available for work. The Administrative Law Judge, with the Board affirming his Decision, discredited the union’s reasons and determined that the union’s failure to refer was based on the three members’ intra-union activity, a violation of Section 8(b)(1)(A). 271 NLRB at 1370-72. In the instant case, I have concluded that there was intense animus by Respondent against Dady, as set forth and described above. It is clear that Respondent by Roura, referred three individuals in violation of the 90 day rule and one individual, Jefferson White, who never even registered. In fact Dady was the first to sign the registration book. By the same procedures, Dady should have been the first referred. Roura, an incredible witness, admits that Dady sought referrals in April, June and July 2006, but incredibly told him Circle Line was not hiring any oilers. Dady credibly testified he told Roura that he was requesting referrals as an oiler or deckhand. In this connection Dady registered in the registration book that he was applying for an oiler, and/or deckhand. Moreover, Respondent was unable to find a single applicant who was denied referral because of a violation of the 90 day rule. See Wright Line, 241 NLRB 1083, enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983); and T & J Trucking Co., 316 NLRB 771 (1995). If the General Counsel satisfies his initial burden under Wright Line, the burden then shifts to the employer in the nature of an affirmative defense, to demonstrate that the same action would have taken place even in the absence of the protected conduct. In meeting this burden, the employer cannot simply state a legitimate reason for the action taken, but rather must persuade by a preponderance of the evidence that it would have taken the same action in the absence of the protected activity. In the instant case Respondent has failed to establish any applicant was denied referral because of a violation of the 90 day rule. I find Respondent has offered no lawful justification for its failure to refer Dady for employment. Accordingly, I find Respondent violated Section 8b(1)(A). Analysis and Conclusions of Law Respondent’s Failure to Process Dady’s Grievance A union owes a duty of fair representation to employees it represents. Vaca v. Sipes, 386 U.S. 171 (1867). A union violates Section 8(b)(1)(A) of the Act by refusing to process a member’s grievance for arbitrary, invidious, or capricious reasons. Id. At 190. Although a union is afforded wide discretion in processing a member’s grievance, perfunctory or careless grievance handling constitutes arbitrary conduct, and therefore violates “Section 8(b)(1)(A) of the Act. It is also established law that Section 8(b)(1)(A) of the Act prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious, or unfair.” Miranda Fuel Co., 140 NLRB 181, 185 (1962). A union has a broad range of discretion in determining which grievances to pursue, and mere negligence is insufficient to form the basis for a violation. King Soopers, 222 NLRB 1011 (1976). However, once a union has undertaken to process a grievance, its abandonment because of ill will or other invidious considerations constitutes a JD(NY)–23–07 5 10 15 20 25 30 35 40 45 50 6 breach of its duty of fair representation. Bottle Blowers Local 106, 240 NLRB 324 (1979). A union may not discriminate against an employee in its hiring hall practices because of his internal union activities, or animus, Teamsters Local 287 (Emery Air), 304 NLRB 119, 123 (1991), or for other unlawful reasons, Iron Workers Local 377 (Alamillo Steel Corp.), 326 NLRB 375 (1998). In Communications Workers of America (Bell South Telecommunications Inc.) and Kellena L. Steverson, 328 NLRB 920, 922 (1999), the Board affirmed the Administrative Law Judge’s decision. The Judge found: “The evidence shows that Steverson engaged in union political activities in which she opposed Vice President Ereen. In addition, he manifested animus toward her by removing her name from the grievance…and by making derogatory statements about Steverson, including profanity.” Based on the criteria cited above the Board, affirming the Judge, found a violation of 8(b)(1)(A) of the Act. See also, Local 3036, New York City Taxi Drivers Union, SEIU, AFL-CIO (Linden Maintenance), 280 NLRB 995. Respondent Union abandoned Moore’s grievance without any explanations for its actions in violation of 8(b)(1)(A). In the instant case Respondent’s slate of officers, including Roura, Larsen, Tucker and Healy had intense animus toward Dady, as set forth and discredited above. I have already concluded that the refusal to refer Dady to any jobs was violative of Section 8(b)(1)(A). Dady’s credible testimony establishes that he complained to Larsen and Tucker about Roura’s failure to refer him to jobs. Dady credibly testified that on June 30, 2006 when Dady paid his union dues to Tucker, he complained to Tucker about Roura’s failure to refer him to jobs. Tucker told him he would look into it and get back to him. Tucker never responded to him. Sometime in August 2006, Dady told Larsen that he was registered as an oiler and a deckhand, but he was not being referred to those jobs by Roura. Larsen promised he would look into it, however, he never did so. Dady also credibly testified that he spoke at a subsequent union meeting and Larsen stated that he had spoken to Roura and that the records were in order. I find that Dady’s conversation with Tucker and Larsen constitutes the filing of a grievance, which Respondent refused to process. I find the facts of this case analogous to Communications Workers of America, supra. Accordingly, I find that Respondent failed to process Dady’s grievance because of the intense animus described above toward Dady by Respondent’s slate of officers and accordingly I find Respondent violated Section 8(b)(1)(A). Conclusions of Law 1. Circle Line Sightseeing Yachts, Inc. is an employer within Section 2(2), (6) and (7) of the Act. 2. Local 333, United Marine Division, International Longshoremen Association, AFL- CIO, herein called Respondent is a labor organization within the meaning of Section 2(5) of the Act. JD(NY)–23–07 5 10 15 20 25 30 35 40 45 50 7 3. Respondent violated Section 8(b)(1)(A) because it refused to refer members for employment because Dady, an individual, ran for Union office. Respondent violated Section 8b(1)(A) because of its refusal to process Dady’s grievances because Dady ran for Union office. Remedy Having found that Respondent engaged in certain unfair labor practices, I find that it must be Ordered to cease and desist and to take certain affirmative action to effectuate the policies of the Act. Respondent, having discriminatorily refused to refer Jay Dady to jobs he was qualified to perform, and failed to process grievances relating to the refusal to refer Respondent, must be ordered to refer Dady to jobs to which he seeks referral, and is qualified to perform, and to process grievances filed. Respondent must also be Ordered to make Dady whole for loss of earnings as a result of Respondent’s refusal to refer computed on a quarterly basis, from the date of the first refusal, until he applies for jobs and gets referred and made whole for refusal to process his grievances, with interest computed there on in the manner prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact, and conclusions of law, and based on the entire record, I issue the following recommended 3 ORDER The Respondent, Local 333, United Marine Division, International Longshoremen Association, AFL-CIO, shall 1. Cease and desist from (a) Refusing to refer members for employment because they run for Union office. (b) Refusing to represent members in their grievances and inquiries about their lack of referral because they run for Union office. (c) Refusing to operate our hiring hall in an arbitrary or capricious manner. (d) In any like or related manner, restrain or coerce our members in the exercise of the rights guaranteed them by Section 7 of the Act. (e) Within 14 days of this Order, refer Dady to jobs he is qualified to perform, and process any grievance filed by Dady. (f) Make Jay Dady whole for any loss of earnings and other benefits suffered as a result of refusals to refer Dady, in the manner set forth in the remedy section of the decision. 3 If no exceptions are filed as provided by Dec. 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. JD(NY)–23–07 5 10 15 20 25 30 35 40 45 50 8 (g) Within 14 days from the date of this Order, remove from Respondent’s files any reference to the refusals to refer Dady, and within 3 days thereafter notify Dady in writing that this has been done and that the discharge will not be used against him in any way. (h) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (i) Within 14 days after service by the Region, post at its facilities in New York City, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive 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. (j) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C., May 14, 2007. ____________________ HOWARD EDELMAN Administrative Law Judge 4 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.” JD(NY)–23–07 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union. Choose representatives to bargain on your behalf with your employer. Act together with other employees for your benefit and protection. Choose not to engage in any of these protected activities. WE WILL NOT refuse to refer members for employment because they run for Union office. WE WILL NOT refuse to represent members in their grievances and inquiries about their lack of referral because they run for Union office. WE WILL NOT refuse to operate our hiring hall in an arbitrary or capricious manner. WE WILL NOT in any like or related manner, restrain or coerce our members in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL within 14 days of this Order, refer Dady to jobs he is qualified to perform, and process any grievance filed by Dady. WE WILL make Jay Dady whole for any loss of earnings and other benefits suffered as a result of refusals to refer Dady, in the manner set forth in the remedy section of the decision. WE WILL within 14 days from the date of this Order, remove from Respondent’s files any reference to the refusals to refer Dady, and within 3 days thereafter notify Dady in writing that this has been done and that the discharge will not be used against him in any way. LOCAL 333, UNITED MARINE DIVISION, INTERNATIONAL LONGSHOREMEN ASSOCIATION, AFL-CIO (Labor Organization) Dated By (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. Two MetroTech Center , 5th Floor Brooklyn, New York 11201-4201 Hours: 9 a.m. to 5:30 p.m. 718-330-7713. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 718-330-2862.