Metals Processing Corp., 229 (1980)

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1329

International Longshoremen's Association, Local 1329 (Metals Processing Corp.) and Peter Vierra. Case 1-CB-4491

September 17, 1980 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS

JENKINS AND PENELLO

On June 26, 1980, Administrative Law Judge Steven B. Fish issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, to modify his remedy,2 and to adopt his recommended Order.3

The complaint as amended alleges in substance that International Longshoremen's Association, Local 1329, herein called Respondent, violated Section 8(b)(1)(A) and (2) of the Act by refusing to select Vierra as the relief winchman employed by Metals Processing Corp., herein called MPC, because he filed charges and/or gave testimony under the Act.

The hearing in the above matter was heard before me in Boston, Massachusetts, on October 25 and 26. During the course of the hearing, the General Counsel amended the complaint to allege that Respondent violated Section 8(b)(1)(A) of the Act by threatening its members with reprisals because they filed charges and/or gave testimony under the Act.

The record was left open pending receipt of certain additional exhibits into evidence to be submitted by the General Counsel. Not having received said exhibits, on February 15, 1980, I issued an Order that these exhibits be submitted on or before March 4, 1980.

The additional exhibits were received on March 3, 1980. Counsel for Respondent, by letter dated March 6, 1980, agreed to the admissability of these exhibits of the General Counsel. A brief has been received from the General Counsel, and has been carefully considered.

Upon the entire record, including my observation of the demeanor of the witnesses, I make the following:

ORDER FINDINGS OF FACTORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, International Longshoremen's Association, Local 1329, Providence, Rhode Island, its officers, agents, and representatives, shall take the action set forth in the said recommended Order.

Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established 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. Standard 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.

See Isis Plumbing d Heating Ca, 138 NLRB 716 (1962), for the rationale on interest payments.

3 In accordance with his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein.

DECISION

STATEMENT OF THE CASE

STEVEN B. FISH, Administrative Law Judge: Pursuant to charges and amended charges filed by Peter Vierra, herein called Vierra, a complaint was issued on May 15, 1979,' and amended on July 20, by the Regional Director for Region , on behalf of the General Counsel.

IAll dates are in 1979 unless otherwise stated.

  1. JURISDICTION MPC is now, and has been at all times material herein, a corporation organized and existing by virtue of the laws of the State of Rhode Island. MPC maintains its principal office and place of business at Municipal Wharf, New Avenue, in the city of Providence, and State of Rhode Island (herein called the Wharf), and is now and continuously has been engaged at said Wharf in the recycling, sale, and distribution of metals and related products.

    MPC annually receives materials at its Rhode Island Wharf from points outside the State of Rhode Island valued in excess of $50,000. In addition, MPC annually ships materials from its Rhode Island Wharf to points outside the State of Rhode Island valued in excess of $50,000. Respondent admits, and I so find, that MPC is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

  2. THE LABOR ORGANIZATION INVOLVED It is admitted and I find that Respondent is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act.

  3. THE ALLEGED UNFAIR LABOR PRACTICES A. PriorRelated Cases.- 1-CB-4095, 1-CB-4157, and 1-CA-14748

    Pursuant to charges and amended charges filed by James Wesley, Jr., herein called Wesley, a complaint was issued on April 25, 1978, amended on July 24, 1978, and consolidated for hearing on September 1, 1978, respec252 NLRB No. 38

    229

    DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively by the Regional Director for Region I on behalf of the General Counsel.

    The complaint and consolidated complaints alleged that Respondent caused and attempted to cause ITO Corporation of Rhode Island, Inc., herein called ITO, to discharge Wesley from his position as walking foreman, caused and attempted to cause ITO not to employ Wesley as a relief winchman, and prevented Wesley from bringing his discharge or removal as a walking foreman before the union membership, for the reasons that he filed charges and or gave testimony under the Act.

    The hearing of the above cases was heard before Administrative Law Judge Elbert D. Gadsden on September 13 and 14, 1978. During the course of the hearing Peter Vierra testified along with a number of others as witnesses for the General Counsel in connection with the alleged discrimination against Wesley.

    Administrative Law Judge Gadsden issued his decision on June 7, 1979, finding that Respondent violated Section 8(b)(1)(A), (B), and (bX2) of the Act by demanding that ITO demote or discharge Wesley, by objecting to ITO hiring him as a relief winchman, and by disallowing Wesley to process his grievance in accordance with standardized grievance procedures because he had filed charges with the National Labor Relations Board.

    Vierra testified at the prior hearing that he had worked under Wesley for ITO but never had any trouble with him as a walking foreman. This testimony, which was corroborated by George Santos and Rudolph Gomes, was specifically referred to and relied upon by Administrative Law Judge Gadsden in his decision, in order to discredit the testimony of Raymond Silva, president of Respondent, that union members did not want to work under the supervision of Wesley. 2

    On December 9 the Board issued its Decision and Order, ITO Corporationof Rhode Island, Inc., 246 NLRB No. 122 (1979), affirming the bulk of Administrative Law Judge Gadsden's findings and conclusions, including his finding that Respondent violated Section 8(b)(1)(A) and (2) of the Act by causing Wesley not to be employed as a relief winchman. The Board's decision specifically found that 'as it is clear from the record that the Union's hostility toward Wesley's activities at union meetings carried over to and influenced its adamant refusal to appoint him relief winchman, a position for which he was qualified, the Administrative Law Judge correctly found that the Union violated Section 8(b)(1)(A) and 8(b)(2).' B. Respondent's Contract With MPCand Past PracticeRelating to the Selection of Relief Winchman Respondent has been the collective-bargaining representative of all employees performing work pertaining to the rigging of ships, the cooling of same, the loading and unloading of all cargoes, including mail, ships' stores and baggages, and the handling of lines in connection with the docking and undocking of ships in the Port of Providence, Rhode Island, and vicinity, employed by MPC, 2 Silva had defended Respondent's action in seeking Wesley's removal as walking foreman, on the basis of the alleged union members' refusal to work under Wesley.

    by virtue of MPC's membership in the Rhode Island Shipping Association, herein called the Association. The last contract between Respondent and the Association expired on September 30, 1977.

    The parties negotiated from October 1977 to December 1978, and a new contract was signed in December 1978, retroactive to October 1977. During the course of the negotiations, the parties entered into various provisional agreements concerning various subjects, which were implemented immediately upon agreement, although the new contract was not executed until December 1978.

    One of the provisional agreements concerned the selection of relief winchmen. In the past the position of relief winchman3 had been considered a staff position, and was selected exclusively by the Employer. The provisional agreement provides that Respondent has the exclusive right to select the individual as the relief winchman. 4

    The provisional agreement in this area was agreed to and implementation commenced sometime between October 1977 and February 1978.6

    At MPC, from 1976 through approximately March 1977, the positions of relief winchmen were filled primarily by Antone Miranda and Matthew Bento. As of March 9, 1977, Vierra was chosen to replace Bento, who went on disability.' From March 9, 1977, through midDecember 1978, Vierra and Miranda were employed regularly as relief winchmen for MPC. The system in effect at MPC resulted in Miranda and Vierra alternating in the position depending upon hours worked, where only one position was available. 7

    Where there were two positions available, they would both be chosen, except for...

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