West Gulf Martime Association

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 334 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen's Association, Local No.
341, AFL-CIO (West Gulf Maritime Associ-
ation) and Dan Edward Guidry. Case 23-CB-
2354
January 14, 1981
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 8, 1980, Administrative Law
Judge Richard D. Taplitz issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I The General Counsel has implicitly excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Stan-
dard Dry Wall Products Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no basis
for reversing his findings.
In par. 9 of sec. IllA, of his Decision, the Administrative Law Judge
incorrectly stated that. "He (Numez] also told Numez that if Guidry had
a gripe or grievance against the Union that Guidry should picket the
Local hall .... " It appears that the Administrative Law Judge intended
to state that, "He [Numez] also told Guidry that if Guidry had a gripe
.. ." We therefore correct this inadvertent error.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge:
This case was heard by me in Orange, Texas, on March
18, 1980. The charge and amended charge were filed, re-
spectively on October 22, and December 2, 1979, by
Dan Edward Guidry, an individual. The complaint
issued on December 7, 1979, alleging that International
Longshoremen's Association, Local No. 341, AFL-CIO,
herein called the Union, violated Section 8(b)(1)(A) and
(2) of the National Labor Relations Act, as amended.
Issue
The primary issue is whether the Union violated Sec-
tion 8(b)(1)(A) and (2) of the Act when it barred Dan
Guidry from the use of its exclusive hiring hall and ex-
pelled him from membership in the Union.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine end cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and the Union.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
West Gulf Maritime Association, herein called the As-
sociation, is a Texas corporation which maintains its
principal office and place of business in Houston, Texas.
The Association is a trade association of employers,
some of whom are engaged in the business of loading
and unloading cargo from deep sea vessels arriving and
departing from various ports in the States of Texas and
Louisiana, including the Port of Orange, Texas. The As-
sociation exists in part for the purpose of negotiating and
administering collective-bargaining agreements made for
and on behalf of its respective employer-members with
South Atlantic and Gulf Coast District, International
Longshoremen's Association. AFL-CIO and its affiliated
unions, including the Union herein. In the year immedi-
ately preceding issuance of to complaint, employer-mem-
bers of the Association collectively furnished stevedoring
services valued in excess of $600,000 to steamship com-
panies operating vessels in interstate and foreign com-
merce. The complaint alleges, the answer admits, and I
find that the employer-memhers of the Association and
the Association are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE AL.LEGED UNFAIR LABOR PRACTICES
A. The Events
The Union operates an exclusive hiring hall in Orange,
Texas, through which applicants for deep sea longshore
work are referred for employment to employer-members
of the Association in the stevedoring business in the
Orange, Texas, area.
The Union is one of 47 locals of the International
Longshoremen's Association that have contractual rela-
tions with the Association. The contract to which the
Union is bound, which is effective from October 1, 1977,
through September 30, 1980, provides:
254 NLRB No. 40
334
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION. LOCAL NO. 341
Rule 43 A. 1. Stoppage of Work. The Union agrees
that during the life of this Agreement there shall be
no strikes or other stoppages of work.
Dan Guidry began working as a longshoremen out of
the Union's exclusive hiring hall in 1974. At that time he
was not a member of the Union. In 1975 he became a
member. At the time of the events in question in August
1979, Guidry had a class "E" status in the hiring hall
which meant he had 5 years or less seniority. If he had
remained working he would have received a class C se-
niority with 5 years seniority in October 1979.
Guidry had a less than enviable work record. He ac-
knowledged in his testimony that he had been fired from
two jobs for drinking and being drunk on the job. He ac-
knowledged that he had operated a crane of a winch
when he was drunk. None of the companies he worked
for permitted him to work as a gearman. A gearmen gets
the gear ready for people to work during the day, and
he had been found with beer in a watercooler when he
was preparing the gear for the other men. He had been
fired from one job for refusing to wear a hard hat and
from another job for refusing to undertake some assign-
ments.
On October 2, 1979, the Union barred Dan Guidry
from the use of its hiring hall and expelled him from
membership in the Union. The incidents that led to that
action occurred on August 16 and 17, 1979.
On August 16, 1979, Guidry was working for an em-
ployer-member of the Association at the Port of Orange,
Texas. He was operating a winch loading flour onto a
ship and was a member of a gang of about 18 or 19 em-
ployees. He worked until the normal quitting time of 5
p.m. During that day there was talk that there might be
work that night loading flour. The normal procedure is
for the union business agent to put information about
extra work on a recorder at the union office so that the
crew can call the Union and find out if there is
nightwork available. When the recorder is not working,
the business agent usually goes to the job and tells the
men that work is available. About 4 p.m. on August 16,
M. G. Foster, the Union's secretary-treasurer, went to
the union hall and tried to put information about night
work on the recorder. However, the recorder was not
working. Foster went back to the ship and informed the
gang foreman and everyone else he saw on the dock that
there was work available that night at 7 p.m. He told
them that if they wanted to work they should be at the
union hall at 6:15 for the selection of men. Foster testi-
fied that he did not recall whether he personally told
Guidry. Floyd Thornal, the Union's president, credibly
testified that he was working on the same ship as Guidry
and that he heard Gang Foreman C. F. Carpenter say
that they were planning to work that night. He averred
that he believed that Guidry was standing near him at
that time. Guidry in his testimony acknowledged that he
heard talk that there might he work that night but he
averred that he had not received word about the
nightwork. About 4:45 p.m. that day Guidry called the
union hall to see whether anything was on the recorder.
There was nothing on the recorder and he went home.
He did not work that night.
The following day, August 17, 1979, Guidry learned
that some of the employees had worked the previous
night. He called a special union meeting of 10 members,
and they voted that the Union should pay the employees
who had missed the nightwork for wages they had lost.
Later that day Union President Thornal told Guidry that
the meeting was not valid because the union secretary-
treasurer had not been there.
That evening at 6:15 p.m., Guidry was one of a gang
of men selected to go to work at 7 p.m. The people that
were not selected to work then went home. Though
Guidry accepted the job he did not report for work. At
6:25 p.m., he put a piece of cardboard on a stick and
wrote on it "Informational Picket-Local 341." He then
picketed the entrance to the Port of Orange. He was
drinking beer while picketing. Several longshoremen
who were scheduled to work refused to cross the picket
line and joined Guidry in the picketing.' Guidry did his
best to close down the Port of Orange. James Mullins
was one of the members of the gang who was to work
on August 17. When he attempted to enter the Port of
Orange, Guidry told him that a picket was up and that
he did not want Mullins to cross the picket line and go
to work. Mullins told Guidry that Guidry was creating
an illegal work stoppage, that it was a violation of the
contract, and that he was going to work. Guidry called
him a no-good son-of-a-bitch and said that he ought to
kick Mullins' ass for crossing his picket. Guidry moved
toward Mullins as if he was going to hit him but he
stumbled on a ice chest and Mullins went into work.2
Larry Numez is a business agent for ILA Local 1029
in Port Arthur. On the evening of August 17 Huck Al-
maguer, a business agent for the Union (Local 341),
called Numez on the telephone. He told Numez that a
few people in Port of Orange were on a wildcat strike
and he asked Numez to come down and help out.
Numez arrived et the entrance to the Port of Orange
about 7:45 p.m. He saw Dan Guidry carrying a picket
sign that read "Informational picket-Local 341."
Guidry was drinking beer while he was picketing. He
asked Guidry what the matter was and Guidry replied
that they had thrown up a picket because the union offi-
cials refused to pay for 4 hours of work that had been
missed the day before. Numez told Guidry that there
had been problems with work stoppages in the area in
the past that had caused a great loss of time for employ-
ees, and suits were filed against the Union. He said that
there was a no-strike clause in the contract and that the
Union had been sued in the past. He also told Numez
that if Guidry had a gripe or grievance against the Union
that Guidry should picket the Local hall; not at the gate
Some of those longshoremen were Guidry's brother John Guidry.
James Wedgeworlh, Farnest Casiano and Jerry Meyers This finding is
based on the credited testimony of James Mullins. Where Dan Guidry's
testimony varies from that of Mullins, I do not credit Guidry. Guidry's
demeanor and testimony were such as to raise substantial doubts as to his
veracity. In his initial testimony, he averred that the only thing he ss rote
on the picket sign was "Informational picket." Only after being prodded
did he admit that he wrote the Union's name oIn the picket sign as well.
Guidry acknowledged in hi, testimony that he called Doll Winnford
a son-of-a-hitch for passing the picket line. and he acknolcdged that he
might have talked to other longshoremen
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to stop people from working. Guidry told Numez about
the special meeting that had been held the day before.
Numez replied that Guidry might have a legitimate gripe
but that he was going about it the wrong way. He said
that the Local and all the people would suffer because of
the picketing. Guidry said "fuck" the Local, he did not
care what it cost and he had to win his point. About 8
p.m. Guidry, in the presence of Numez, made a tele-
phone call to a newspaper. Sometime thereafter, news re-
porters came to the scene and asked questions of Numez
and Guidry. For about 2 hours Numez tried to talk
Guidry into stopping the picketing. Then Numez con-
vinced Guidry to come into the company office and
speak to some other people about the problem. Before
going into the office Guidry gave the picket sign to one
of the other employees who accompanied him. The pick-
eting continued until Guidry left the office about 10:45
p.m.3
About a week after August 17, Union President Thor-
nal told Dan Guidry that if Guidry hired a good lawyer
he might be able to beat the case but that otherwise he
would he kicked out for putting up the informational
picket. About the same time Thornal also told Dan
Guidry's brother John that there was not much hope for
Dan remaining in the Union and continuing work. Thor-
nal mentioned Dan Guidry's past record of drinking and
said that that was one of the reasons he did not think
Danny had any hope. Thornal also told Deena Guidry
that Dan was going to lose his job, his union member-
ship, and seniority.
Dan Guidry attended a union meeting on September 4,
1979, at 7 p.m. During that meeting formal charges were
brought against Dan Guidry and his brother John 4 be-
cause they put up the informational picket sign. The
charge was read at the meeting and a copy was mailed
to Dan Guidry.5 It read:
Mr. D.E. Guidry
I.L.A. Local 341 charges you of violation of its
By Laws Article 5 sec. I and sec. 2. also of viola-
tion of the Constitution of South Atlantic and Gulf
Coat District Article XX. Local 341 also charges
you of [Hiring] out and not showing up for work.
The date of these violations [occurred] on Aug.
16th 1979.
Please be present next regular meeting Oct. 2, 1979.
[sic]
Article V, section I and 2 of the bylaws relate to the dis-
cipline of members who injure the reputation of the
Union and fail to keep the transactions of the Union
secret. Article XX of the constitution provides for disci-
pline against a local that permits individual members to
call a wildcat strike. The Union's hiring hall procedures
provide for disciplinary action against an employee who
3 These findings are based on the credited testimony of Numez. Where
the testimony of Guidry conflicts with that of Numez I credit Numez.
4 John Guidry was ultimately fined $100. The fine against John Guidry
is not in issue in this case.
5 Though the charge mentions the date of August 16, 1979, Union Sec-
retary-Treasurer Foster credibly testified that all of the charges were
keyed to the events surrounding the picketing on August 17. 1979.
uses the hiring hall where the employee fails to report
for work at the proper starting time, quits or leaves the
gang short-handed, or violates the terms of the contract
governing the union working conditions with the em-
ployer.
At the September 4 meeting, a three-person committee
was appointed to investigate the charges. Dan Guidry
was given the right to veto anyone on the committee
and he did exercise that veto with regard to one person.
He also explained the circumstances under which he had
picketed.
On October 2, 1979, Guidry attended a union meeting
at which the committee investigating the charges against
him reported on those charges. The committee found
that the charges against Guidry were true. James Mul-
lins, one of the committee members, addressed the union
membership on the subject. He said that they had a bad
situation on their hands and that the Port of Orange had
a history of poor work. He told them that work was
starting to build up; that flour was moving through the
port; and that they were all working hard to maintain
the tonnage and to build up the work force. He pointed
out that wildcat pickets would destroy all their efforts.
He said that Guidry had violated the hiring hall proce-
dures disrupted their activities, and caused work slow-
clowns. He also said that they could not allow such a
thing as a picket to go by and they could not ignore it
and forgive Guidry. A motion was made to bar Guidry
from use of the hiring hall, and the motion was passed
by the membership. Another motion was made to expel
Guidry from membership in the Union, and that motion
also passed. Both votes were unanimous. Guidry did not
go back to work since that time.
B. Analysis and Conclusions
Though the charges against Dan Guidry were keyed
to specific provisions of the union constitution, bylaws,
and hiring hall procedures, the evidence clearly estab-
lishes thet he was barred from the hiring hall and ex-
pelled from the Union because of his activities in connec-
tion with the picketing incident on August 17, 1979. That
incident involved Guidry's failure to report for work as
scheduled and his picketing of the Port of Orange to
induce other employees to refrain from working. He and
at least two other employees did fail to report to work
and he verbally abused employees who crossed his
picket line. The picket was not authorized by the Union
but he used the Union's name on the picket sign. Guidry
and the others who refused to go to work were engaging
in a strike and that strike was in violation of the no-strike
clause in the collective-bargaining agreement. Guidry did
not even have the excuse that he had a dispute with the
Company. His dispute was with the Union but he at-
tempted to disrupt the employer's operation. His instiga-
tion of a wildcat strike and his picketing could have had
damaging repercussions on the Union, the employer, and
his fellow employees. His actions were not protected by
the National Labor Relations Act. A strike in violation
of a no-strike clause in a collective-bargaining agreement
is an unprotected activity. American Beef Packers, Inc.,
336
INTERNATIONAL L.ONGSHOREMEN'S ASSOCIATION, LOCAL NO 341
196 NLRB 875 (1972).6 As the United States Supreme
Court held in Samuel M. Atkinson v. Sinclair Refining
Co., 370 U.S. 238, 246 (1962):
It is universally accepted that the no-strike clause in
a collective agreement at the very least establishes a
rule of conduct or condition of employment the
violation of which by employees justifies discipline
or discharge.
Exceptions applicable when a strike is a protest against
an employer's unfair labor practices are not pertinent
here. See Mastro Plastics Corp., and French-American
Reeds Manufacturing Company, Inc. v. N.L.R.B., 350
U.S. 270 (1956); Arlan's Department Store of Michigan,
Inc., 133 NLRB 802 (1961). The employer did not
engage in any unfair labor practices.
One can only speculate as to the state of mind of the
members who voted to deny Guidry referral rights and
to expel him from the Union. It is likely the severity of
the discipline was influenced by Guidry's reputation
among his fellow employees as someone whose drinking
habits on the job were a menace to others who worked
with him. In any event it is clear that Guidry's drinking
habits on the job were not protected by the Act.
Guidry was expelled from the Union because of activi-
ties that he engaged in that were unprotected by the Act.
Such an expulsion does not violate the Act. The proviso
to Section 8(b)(l)(A) of the Act states:
. . . this paragraph shall not impair the right of a
labor organization to prescribe its own rules with
respect to the acquisition or retention of member-
ship therein ....
While there may be a question as to the application of
that proviso where it is necessary to preserve the integri-
ty of the Act or where an expulsion is based on a mem-
ber's protected activity, that issue does not arise in this
case. Guidry's conduct was not protected.
The key question is whether under the circumstances
of this case the Union's action in barring Guidry from
the hiring hall was such an exercise of control over the
hiring process as to unlawfully encourage membership in
the Union in violation of Section 8(b)(2) of the Act. A
further question is whether the Union's action constitut-
ed a failure to represent Guidry fairly, in violation of
Section 8(b)(1)(A) of the Act.7
A Union's obligation with regard to a hiring hall is set
forth in International Union of Operating Engineers. Local
18, AFL-CIO (Ohio Contractors Association), 204 NLRB
681, enforcement denied and remanded 496 F.2d 1308
(6th Cir. 1974),8 in which the Board held:
5 See also Local 1838 International Longshoremen's Association. AFL-
CIO. and Charles Rogers. its President (Ryan Stevedoring Company Inla.).
179 NLRB 425 (1969), enfd 430 F.2d 1180 (4th Cir. 1970).
7 ee Bricklayers, and Stonemasons' Local NAo. 8. BM. P of
America (California Conference f Mason Contractors Associations. Inc.),
235 NLRB 1001, 1005 (1978).
8 In reversing the Board, the court did not appear to be in disagree-
ment with the statement of law set forth herein In recent cases, the
Board has relied on International Union of Operating Engineers. Local 18
as established law. See United Brotherhood of Carpenters and Joiners of
America. Carpenters Local No. 1914 (W H Conveyor Systems. Inc.), 250
When a union prevents an employee from being
hired or causes an employee's discharge, it has dem-
onstrated its influence over the employee and its
power to effect his livelihood in so dramatic a way
that we will infer-or, if you please, adopt a pre-
sumption that-the effect of its action is to encour-
age union membership on the part of all employees
who have perceived that exercise of power.3 But
the inference may be overcome, or the resumption
rebutted, not only when the interference with em-
ployment was pursuant to a valid union security
clause, but also in instances where the facts show
that the union action was necessary to the effective
performance of its function in representing its con-
stituency.
Thus the Supreme Court has sanctioned union
control over access to employment through hiring
hall agreements,4 even though recognizing that "the
very existence of a hiring hall encourages union
membership." And this Board has found legitimate
a union's action in causing the layoff of an employ-
ee who insisted on working without receiving a
subsistence allowance called for by the collective-
bargaining agreement.5 In such cases, the union's
actions, while incidentally encouraging union mem-
bership, were nevertheless essential to its effective
representation of employees.
:' Radio Officers' Union [.4A. 11 Bull Steamship Co. v . L. R. B.,
347 U.S 17 (1954).
4 Local 357. Teamsters Los Angeles-Seanle .otor Express] v.
NL.R.B.. 365 U.S. 667 (1961)
Planet Corporation, fn. 2. supra.
Wildcat strikes and wildcat picketing are very serious
matters. When they occur a union and an employer can
lose control of the situation to the detriment of everyone
concerned. The Union has a duty to represent employ-
ees. In this case the Union did represent the employees
when it agreed to a no-strike clause. It had the right to
preserve the integrity of that clause. Where individual
employees take action through wildcat strikes and pick-
eting to disrupt the employment opportunities of the
people that the Union represents, the Union has a legiti-
mate interest in taking action to preserve those job op-
portunities. The legitimate interests of a union must be
carefully balanced against the interests of individual em-
ployees when those employees are engaging in protected
activity, but in this case there was no protected activity.
I find that the Union's action in denying Guidry access
to the hiring hall because of Guidry's wildcat strike and
picketing was necessary for the effective performance of
the Union's function of representing its constituency. I
further find that under the circumstances of this case the
Union did not fail to represent Guidry fairly. I therefore
find that the Union did not violate the Act as alleged in
NLRB 1426 (1980); Local 873. International Brotherhood of Electrical
Workers. AFL-CIO (National Electrical Contractors .4ssociation) 250
NLRB 928 (1980); General Teamsters Local 959. State of .4laska. affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Ielper of A.merica (Northland Maintenance). 248 NLRB 693 (1980).
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint and I recommend that the complaint be
dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Association and its employer-member are em-
ployers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The General Counsel has not established by a pre-
ponderance of the credible evidence that the Union vio-
lated the Act as alleged in the complaint.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER9
The complaint is dismissed in its entirety.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National .ahor Relations Board, the find-
ings. conclusions. and recommended Order herein shall, as provided in
Sec. 102.4R8 of the Rules and Regulations, he adopted by the Board and
become :s findings, conclusions, and Order, and all objections thereto
shall be de: med waived for all purpose,.
338