NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

GFC Crane Consultants, Inc. and District No. 1-Pacific Coast District, Marine Engineers Beneficial Association, AFL–CIO. Cases 12–CA–21302, 12–CA–21321, 12–CA–21496, and 12–CA–21537

August 29, 2008

SUPPLEMENTAL DECISION AND ORDER

By Chairman Schaumber and Member Liebman

On April 4, 2002, Administrative Law Judge Pargen Robertson issued the attached decision. The Respondent filed exceptions and a supporting brief, an answering brief, and a reply brief; the General Counsel filed cross-exceptions, an answering brief, and a reply brief; and the Charging Party filed an answering brief to the Respondent’s exceptions.

On September 30, 2006, the Board remanded the case to the judge for further consideration in light of the Board’s decisions in Oakwood Healthcare, Inc., 348 NLRB 686 (2006), Croft Metals, Inc., 348 NLRB 717 (2006), and Golden Crest Healthcare Center, 348 NLRB 727 (2006).[1]

On February 9, 2007, Judge George Carson II (Judge Robertson had retired) issued the attached supplemental decision. The Respondent filed exceptions,[2] a supporting brief, and a reply brief. The General Counsel and the Charging Party each filed an answering brief.

The National Labor Relations Board has considered the decisions and the record in light of the exceptions[3] and briefs and has decided to affirm the judges’ rulings, findings,[4] and conclusions[5] as modified herein and to adopt the recommended Order as modified[6] and set forth in full below.[7]

1. We agree with the judge, for the reasons set forth in his decision, that the Respondent’s discharge of the port engineers and replacement of them with the crane maintenance technicians (CMTs) violated Section 8(a)(3) of the Act. In doing so, we particularly rely on the pretextual nature of the Respondent’s asserted reasons for its actions, which reasons demonstrate the Respondent’s animus towards its employees’ protected union activity. According to the Respondent, the port engineers were discharged because (1) there was less work for them to perform because of a downturn in cargo, (2) the Respondent wanted to upgrade its work force by hiring a more skilled set of employees, the CMTs, and (3) the Union’s unreasonable wage demands triggered a restructuring of operations. We find that the record does not support any of these contentions.

First, the Respondent’s contention that there was less work for the port engineers is contradicted by the testimony of Robert Flint, the director of operations for the port (and not an employee of the Respondent). Flint testified, without contradiction, that a downturn in cargo would not necessitate fewer port engineers because they would still be needed to perform preventive maintenance on the cranes.

Second, the Respondent’s contention that it wanted to upgrade its work force is contradicted by the testimony of the Respondent’s president, Gerry Charlton, who testified that he had hoped that the port engineers would fill the CMT positions. Further, Charlton told port engineer Timothy Herring that the jobs were the same. The record bears this out, as the CMTs had the same duties as the port engineers and there is no evidence of any differential in pay. Nor were the CMTs more efficient in performing the port engineers’ duties; by July 2001, there were just as many CMTs as there were port engineers before the discharges.[8]

Third, the Respondent’s contention that it restructured operations because of the Union’s unreasonable wage demands also is not supported by the record (even assuming that this would be a legally cognizable defense). As the judge found, the Union’s wage demands were not patently unreasonable. According to the credited testimony, the Union initially sought a wage increase of around 5 percent and reduced that demand at the November 7, 2000 bargaining session. Thus, the record shows that the Union demonstrated flexibility with its wage demands. Moreover, although the Respondent’s chief negotiator, Thomas Wotring, testified that the restructuring was due, in part, to the Union’s unreasonable wage demands, the Respondent introduced no evidence to corroborate this assertion.

Lastly, the explanation the Respondent gave to the port engineers for discharging them reveals pretext. The termination letters explained to the port engineers that they were being released because each had been given the opportunity to apply for a CMT position, but none had done so. However, the Respondent had never previously informed the port engineers that their failure to apply for a CMT position would jeopardize their continued employment. Thus, the Respondent’s stated justification is contrived, and buttresses the conclusion that the Respondent harbored animus towards the employees’ protected union activity. See National Steel & Shipbuilding Co., 324 NLRB 1114, 1119 fn. 11 (1997) (a finding of pretext “supports the General Counsel’s showing of discrimination and defeats any attempt by Respondent to show it would have acted the same way absent discrimination”); see also Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).

2. We agree with the judge that an affirmative bargaining order is warranted in this case as a remedy for the Respondent’s unlawful withdrawal of recognition from the Union. The Board has previously held that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining representative of an appropriate unit of employees.” Caterair International, 322 NLRB 64, 68 (1996); see also Parkwood Developmental Center, 347 NLRB 974, 976–977 (2006); Alpha Associates, 344 NLRB 782, 787 (2005).

In several cases, however, the United States Court of Appeals for the District of Columbia Circuit has required the Board to justify, based on the facts of each case, the imposition of an affirmative bargaining order. See, e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Building Material Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent Industrial Plastics, supra, the court stated that an affirmative bargaining order “must be justified by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees’ § 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” 209 F.3d at 738. Consistent with the court’s requirement, we have examined the particular facts of this case and find that a balancing of the three factors warrants an affirmative bargaining order.[9]

(1) An affirmative bargaining order in this case vindicates the Section 7 rights of the unit employees who were denied the benefits of collective bargaining by the Respondent’s unlawful withdrawal of recognition and its resulting refusal to bargain with the Union. The basis for Respondent’s withdrawal—that the port engineers are supervisors—lacks merit, and the Respondent has proffered no other basis on which it lawfully could have withdrawn recognition. The Respondent’s unlawful conduct demonstrated a disregard for the employees’ Section 7 right to select union representation, and the Respondent’s conduct would tend to unfairly undermine continuing support for the Union. This is particularly true given the Respondent’s commission of several unfair labor practices prior to its withdrawal of recognition. By the time the Respondent had withdrawn recognition, it had also unilaterally laid off employee Jody Thomas, unilaterally implemented other changes to terms and conditions of employment, refused to bargain in good faith, and posted the notice to hire CMTs who would replace the unlawfully terminated unit members in the performance of unit work. Thus, the Respondent’s disregard of employees’ Section 7 rights is manifest, and an affirmative bargaining order is needed to compel the Respondent to respect those rights.

At the same time, an affirmative bargaining order, with its attendant bar to raising a question concerning the Union’s continuing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of employees who may oppose continued union representation. Thus, the order is not of indefinite duration but is for a reasonable period of time sufficient to allow good-faith bargaining that the Respondent’s unlawful withdrawal of recognition cut short. It is only by restoring the status quo ante and requiring the Respondent to bargain with the Union for a reasonable period of time that the employees’ Section 7 right to union representation will be vindicated. An affirmative bargaining order also will give employees an opportunity to fairly assess the Union’s effectiveness as a bargaining representative and determine whether continued representation by the Union is in their best interests.

(2) An affirmative bargaining order also serves the Act’s policies of fostering meaningful collective bargaining and industrial peace. It removes the Respondent’s incentive to delay bargaining in the hope of discouraging support for the Union, and it ensures that the Union will not be pressured to achieve immediate results at the bargaining table—results that might not be in the employees’ best interests. It fosters industrial peace by reinstating the Union to its rightful position as the bargaining representative chosen by a majority of the employees. Also, as mentioned, providing this temporary period of insulated bargaining will afford employees a fair opportunity to assess the Union’s performance in an atmosphere free of the effects of the Respondent’s unlawful withdrawal of recognition and refusal to bargain.

(3) The alternative remedy, of a cease-and-desist order alone, would be inadequate to remedy the Respondent’s withdrawal of recognition and refusal to bargain with the Union because it would allow a challenge to the Union’s majority status before the employees had a reasonable time to regroup and bargain with the Respondent through their chosen representative in an effort to reach a collective-bargaining agreement. Such a result would be especially unfair where the Respondent’s unlawful refusal to recognize and bargain with the Union first occurred several years ago. Allowing a challenge to the Union’s majority status before a reasonable period for bargaining has elapsed also would be unfair in light of the fact that the litigation of the Union’s charges took several years and, as a result, the Union needs to reestablish its representative status with unit employees. Indeed, permitting a decertification petition to be filed immediately might very well allow the Respondent to profit from its own unlawful conduct. We find that these considerations outweigh the affirmative bargaining order’s temporary suspension of the decertification rights of employees who might oppose continued union representation.

For all the foregoing reasons, we find that an affirmative bargaining order with its temporary decertification bar is necessary to fully remedy the violations in this case.

ORDER

The National Labor Relations Board orders that the Respondent, GFC Crane Consultants, Inc., Fort Lauderdale, Florida, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Eliminating bargaining unit positions without notifying and bargaining with the Union, District No. 1-Pacific Coast District, Marine Engineers Beneficial Association, AFL–CIO (Union).

(b) Laying off port engineers without notifying and bargaining with the Union.

(c) Refusing to meet and bargain with District No. 1-Pacific Coast District, Marine Engineers Beneficial Association, AFL–CIO, its port engineer employees’ exclusive collective-bargaining representative, unless the Union first submits its contract proposals in writing.

(d) Refusing to arbitrate grievances after request by the Union in accord with the grievance procedure as set forth in the parties’ 1995 collective-bargaining agreement.

(e) Threatening to implement and unilaterally implementing different terms and conditions of employment for unit employees[10] although the parties had not bargained to impasse.

(f) Posting a notice of openings for and interviewing applicants including unit employees for job openings as CMTs to perform port engineer bargaining unit work, even though CMTs were not bargaining unit employees, without notifying and bargaining with the Union.

(g) Withdrawing recognition from the Union as the bargaining unit employees’ collective-bargaining representative.

(h) Requiring its employees to avoid supporting the Union.

(i) Discharging or otherwise discriminating against any employee for supporting the Union or any other labor organization.

(j) Threatening its employees that it no longer recognized the Union and was going to fill bargaining unit jobs with nonbargaining unit employees.

(k) Telling its employees that they had better talk to its president if they wanted to keep their jobs while the employer and the Union were engaged in collective bargaining.

(l) Telling its employees that they could continue to perform their same job but they would have to leave the Union.

(m) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Rescind the unilateral changes it made, including the reduction and lay off of unit employees, the implementation of different terms and conditions of employment for unit employees on January 23, 2001, the creation of the CMT position and posting of CMT job openings, and the filling of CMT positions; provided, however, that nothing in this Order shall be construed as requiring the Respondent to rescind any unilateral change that benefited the unit employees unless the Union requests such action.

(b) On request, bargain in good faith with the Union as the exclusive representative of the port engineer employees concerning wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement.

(c) Within 14 days of this Order, offer full and immediate reinstatement to employees Jody Thomas, Michael Crehan, Timothy Herring, Peter Leahy, Randolph Veiga, and Scott Zinsius to their former jobs, or if those jobs no longer exist, to substantially equivalent positions without loss of seniority and benefits.

(d) Make Thomas, Crehan, Herring, Leahy, Veiga, and Zinsius whole for any loss of earnings and other benefits suffered as a result of the unlawful terminations, in the manner set forth in the remedy section of the judge’s decision.

(e) Make whole employees for any loss of earnings and other benefits they may have suffered as a result of the unilateral changes implemented on January 23, 2001, in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971) with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

(f) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharges of Crehan, Herring, Leahy, Veiga, and Zinsius, and within 3 days thereafter notify the employees in writing that this has been done and that the discharges will not be used against them in any way.

(g) 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.

(h) Within 14 days after service by the Region, post at its Port Everglades, Florida Midport and Southport facilities, copies of the attached notice marked “Appendix.”[11] Copies of the notice, on forms provided by the Regional Director for Region 12, 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. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 30, 2000.

(i) 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. August 29, 2008

______________________________________

Peter C. Schaumber, Chairman

______________________________________

Wilma B. Liebman, Member

(seal) National Labor Relations Board

APPENDIX

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 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 with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not eliminate bargaining unit positions without notifying and bargaining with the Union, District No. 1-Pacific Coast District, Marine Engineers Beneficial Association, AFL–CIO (Union).

We will not lay off port engineers without notifying and bargaining with the Union.

We will not refuse to meet and bargain with District No. 1-Pacific Coast District, Marine Engineers Beneficial Association, AFL–CIO, our port engineer employees’ exclusive collective-bargaining representative, un-less the Union first submits contract proposals in writing.

We will not refuse to arbitrate grievances after request by the Union in accord with the grievance procedure as set forth in the 1995 collective-bargaining agree-ment.

We will not threaten to implement and unilaterally implement different terms and conditions of employment for our unit employees although the parties had not bargained to impasse.

We will not post a notice of openings for and interview applicants including unit employees for job openings as CMTS to perform bargaining unit work even though CMTs are not bargaining unit employees without notifying and bargaining with the Union.

We will not withdraw recognition from the Union as the bargaining unit employees’ collective-bargaining representative.

We will not require our employees to avoid supporting the Union.

We will not discharge or otherwise discriminate against any employee for supporting the Union or any other labor organization.

We will not threaten our employees that we no longer recognize the Union and are going to fill bargaining unit jobs with nonbargaining unit employees.

We will not tell our employees that they had better talk to our president if they want to keep their jobs while we are engaged with the Union in collective bargaining.

We will not tell our employees that they can continue to perform their same job but that they will have to leave the Union.

We will not in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act.

We will rescind the unilateral changes we made, including the reduction and lay off of unit employees, the implementation of different terms and conditions of employment for unit employees, the creation of the CMT position and posting of CMT job openings, and the filling of CMT positions.

We will on request and within 14 days thereafter, recognize and bargain with the Union in good faith as the exclusive representative of the port engineer employees at Port Everglades, concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement.

We will on request and within 14 days thereafter, reinstate all laid off and terminated port engineers and, if necessary, discharge employees hired to replace those port engineers.

We will within 14 days of this Order, offer full and immediate reinstatement to employees Jody Thomas, Michael Crehan, Timothy Herring, Peter Leahy, Rudolph Veiga, and Scott Zinsius to their former jobs, or if those jobs no longer exist, to substantially equivalent positions without loss of seniority and benefits.

We will make Thomas, Crehan, Herring, Leahy, Veiga, and Zinsius whole for any loss of earnings and other benefits suffered as a result of the unlawful terminations.

We will make whole employees for any loss of earnings and other benefits they may have suffered as a result of the unilateral changes implemented on January 23, 2001.

We will within 14 days from the date of this Order, remove from our files any reference to the unlawful discharges of Crehan, Herring, Leahy, Veiga, and Zinsius, and within 3 days thereafter notify the employees in writing that this has been done and that the discharges will not be used against them in any way.

GFC Crane Consultants, Inc.

Suzy Kucera, Esq., for the General Counsel.

John Mills Barr, Esq. and Mary D. Walsh, Esq., of Washington, D.C., for the Respondent.

Richard J. Hirn, Esq., of Washington, D.C. for the Charging Party.

DECISION

Statement of the Case

This case was heard in Tampa, Florida, on December 10 through 14, 2001. The charges were filed between February 2 and 22, 2001,1 and an amended consolidated complaint issued on September 10, 2001.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by Respondent and the General Counsel, I make the following findings.

i. jurisdiction

GFC Crane Consultants, Inc., is a California corporation, with facilities located at the Midport and Southport locations at Port Everglades in Ft. Lauderdale, Florida, where it provides services affecting maintenance and repair of commercial gantry cranes pursuant to a contract or contracts with Broward County, Florida.2 Respondent admitted that during the past 12 months, in conducting its business operations at Port Everglades, it derived gross revenues in excess of $1,000,000 and provided services valued in excess of $50,000 directly to Broward County, an entity directly engaged in interstate commerce. I find that the admission and the record show that Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act at all times material.

ii. labor organization

The parties stipulated that District No. 1-Pacific Coast District, Marine Engineers Beneficial Association, AFL–CIO (the Charging Party), is a labor organization as defied in Section 2(2) of the Act.

iii. respondent contended the port engineers
were supervisors

Until 2001, Respondent’s work force at Port Everglades was made up of teams of a port engineer and one or two electricians. A supervisory port engineer, a senior port engineer, and Respondent’s president supervised the teams.3 Each team4 of a port engineer and one or two electricians was assigned a crane and each team had two missions,—scheduled maintenance and cargo watch. Maintenance was considered preventive and the tasks included greasing crane parts, changing oil, performing all tasks required by warranty procedures and inspections. Each team performed scheduled inspections on monthly, 3-monthly, and 6-monthly bases. All members of the crew including the port engineer and the electrician(s) worked at the job at hand. While working on maintenance assignments, all port engineers did the same things as electricians which included greasing crane parts, changing oil, performing all tasks required by warranty procedures, and conducting inspections. Jody Thomas, Tim Herring, and Rudy Veiga5 were some of those formerly employed by Respondent as port engineers. Veiga testified that he did not receive any special training from Respondent. Veiga learned as he went along with his job. The only training recalled by Veiga occurred in 1996 or 1997. At that time Respondent employed a consultant at Midport who gave a few days of instructions to the employees.

Scott Zinsios was a port engineer. He testified that the Southport uniforms were the same for electricians and engineers. The electricians for Midport wore blue or brown uniforms.

The teams performed cargo watches in addition to scheduled maintenance. Cargo watches included setting up the crane, doing preoperation testing and ensuring that each crane performed properly. A crew was responsible for the repair of broken cranes. Because of the potential high cost of downtime by a broken crane, rapid repair work was essential. In cases where a crane could not resume operations within a 15–30 minute timeframe, the port engineer was required to notify Port Everglades and the senior port engineer or the supervisory port engineer that there was a downtime situation. Supervisory port engineer, Mark Aloisio, had final authority regarding repairs. The senior port engineer or the supervisory port engineer or Gerald Charlton were available 24 hours each day for problems and were in daily contact with each team. The senior port engineer and the supervisory port engineer were assigned to day shifts. Port engineers worked three shifts including time each day when no admitted supervisors were on duty at the port.

Tim Herring was promoted to port engineer in 1995. Mark Aloisio was his supervisor when he last worked for Respondent. Herring6 described his duties as overseeing the jobs. When the job involved a cargo watch, usually one or two cranes were assigned to a vessel. Herring described his cargo watch as being on standby and if anything happened to a crane, it was his team’s responsibility to fix the crane. The crane maintenance electricians (CME) had a leadman. That leadman was Paul Titus shortly before Herring was terminated on February 1, 2001. Before that the electrician leadman was Richard Wilson.

Paul Titus testified that he is the lead CME. Titus was not familiar with the term port engineers. Instead he knew those employees as watch engineers or watch supervisors. Until 1999, teams included a watch engineer and two CMEs when they were changed to one engineer and one CME for watch while one CME, the lead CME and one engineer, formed the day gang. Titus testified there was a company policy that an engineer had to be present when there was a CME on the job. The engineer assigned work to the crew. Work was assigned through general discussions. Generally the crew was told of their work on the day before. Titus testified there was a “block maintenance board.” On that board, “there was four or five, six different items. And it varied month to month, or some things that had to be done every month, some had to be done every three, every six months, or once, one or two things every year.” Titus testified that if he was running late for work or if he needed to leave work early, he would contact the watch engineer for his crew. If he wanted a personal day off a week or so ahead, he would contact the senior port engineer. If a CME was sick he would call in and leave a message. Sometimes a crew worked late and it was the watch engineer that asked them to stay late. Titus recalled an incident where a watch engineer said that he did not believe a CME knew what he was doing on the job. He could not recall any occasion where a watch engineer sent a CME off the job. Titus testified that the watch engineer spent at least 50 percent of his time working with the crew. As to who told him what repairs to perform on the crane Titus testified, “Usually, they are minor damage, flippers and stuff of that nature. The watch supervisor (i.e., port engineer) would be aware of what stuff we were going to do, usually changing spring arms, minor damage. It would be approved by him just to get the parts and do it.”

According to Paul Titus, cargo work was assigned to the whole watch and it was pretty much a group effort to handle the cargo watch. The engineer decided which members of the crew took up a particular position. In situations where a crane needed repair the port engineer was required to notify Port Everglades and the supervisory port engineer when downtime on a crane ran into the 15–30 minute period, and the supervisory port engineer decided whether to call in another crane.

Port engineers did some paperwork. Herring described the paperwork as including rental sheets for cargo operations and work orders. Whenever a team did a job, the port engineer described what occurred including listing the parts used on the job. Port engineers also completed inspection reports. During his last year at work, Herring and his team, did basically all inspections. He would turn in the inspection reports to Mark Aloisio. Herring’s paperwork took up approximately 10 percent to 15 percent of his worktime.

Herring testified that port engineers did not have authority to hire, give warnings, grant oral warnings, transfer, grant suspension, grant promotions, grant raises in pay, or grant benefits. He never recommended hiring, oral or written warnings, transfer, and pay raise, or benefits, for any employee. Herring did not recall an incident of an electrician complaining to him about working conditions.

Tim Herring described one incident with an electrician named Arnold de la Cruz. In 1995, Herring asked de la Cruz to help move some parts from the county facility and de la Cruz refused to perform the work. Herring phoned Gerald Charlton and Charlton told him to get rid of de la Cruz. Herring told de la Cruz that Charlton had said that de la Cruz’s services were no longer needed. Occasionally Gerald Charlton or the former senior port engineer asked Herring how a particular employee was performing. Herring replied what he thought about that employee’s strong or weak points. The former senior port engineer asked Herring about Mark Aloisio’s job performance at a time when Aloisio was an electrician on the crew with Herring. Aloisio was promoted despite Herring telling the senior port engineer that Aloisio was not ready for promotion. Herring told the former senior port engineer that Aloisio was not trained in the computer end of a crane.

The senior port engineer or supervisory port engineer made assignments on weekly work lists or on a board. Herring testified that he did not prepare schedules nor did he make work assignments other than routine assignments of tasks in furtherance of posted work assignments. He testified that CMEs knew their jobs and the work was routine work performed on monthly or 3-monthly bases. A work list was maintained on each crane showing such things as when the oil was to be changed and when the wires were to be greased. Herring would come in, pick up the work list, and make whatever assignments were necessary to perform the work. When Herring wanted to swap watches with another employee, he was required to get permission from the senior port engineer, the supervisory port engineer, or Gerald Charlton (GC Exh. 59–64). CMEs would need to first tell their port engineer, and then get it approved by the supervising port engineer.

Credibility

I was impressed with the demeanor and testimony of Tim Herring, Rudy Veiga, Jody Thomas, and Scott Zinsios. I found their testimony was detailed and complete as to the duties and work of port engineers. Paul Titus also appeared to testify to the best of his ability. However, Herring, Veiga, Thomas, and Zinsios and not Titus, actually worked as port engineers. To the extent there were conflicts in their testimony, I credit the testimony of Tim Herring.

Findings

Respondent argued that its port engineers were supervisors and, as such, not entitled to protection under the Act. It argued that port engineers “responsibly directed GFC’s workforce during cargo operations, bore responsibility for activities that happened on their watch and were the senior company officials present at the worksite for most of the standard work week.” Respondent argued that port engineers also had the authority to promote, evaluate, and discipline GFC employees or to effectively recommend such action; and port engineers demonstrated other indicia of supervisory action including higher wage rates, different uniforms, the way they were presented by GFC to outside parties, and the way port engineers viewed themselves. The 1993 and 1995 collective-bargaining agreements include among the duties of the unit employees, “perform crane maintenance and repair; and other equipment maintenance and to supervise the Company’s maintenance mechanics/electricians in performing the maintenance.” (GC Exh. 5, art. 2, par. 6; GC Exh. 7, art. 2, par. 2.6.) The 1995 collective-bargaining agreement encourages “Port Engineers (CM) to participate in such programs to enhance their supervisory and engineering skills.” (GC Exh. 5, art. 27.4(c); GC Exh. 7, art. 27.4.)

Respondent pointed to a recent Supreme Court opinion wherein the Board was overruled regarding its determination of supervisory status. That case involved the question of whether the issue of independent judgment should be treated differently when it involved “ordinary professional or technical judgment in directing less skilled employees to deliver services.” [NLRB v. Kentucky River Community Care, Inc., 121 S.Ct. 1861 (2001).] Registered nurses were the employees at issue. The Supreme Court considered that matter after a ruling by the Sixth United Circuit Court of Appeals [Kentucky River Community Care, Inc. v. NLRB, 193 F.3d 444 (6th Cir. 1999)], on October 4, 1999. It was during the time period after the Sixth Circuit ruled and before the Supreme Court ruled, that Respondent engaged in the activity alleged herein as unfair labor practices including its action in replacing some port engineers with crane maintenance technicians.

Nevertheless, the issue should not be confused. There may be a question regarding whether the port engineers exercised independent “judgment in directing less skilled employees to deliver services in accordance with employer-specified standards.” However, that question should not be confused with similar questions regarding registered nurses. The port engineers were not professionals nor were they trained technicians. In Kentucky River, the Supreme Court held that the supervisor question should not be compromised simply because the alleged supervisors are professional or technical personnel. In other words, professional or technical employees should not be held to a different standard than any other alleged supervisor. Therefore, even if the port engineers qualified as professional or technical, the issue should remain whether they exercised independent judgment in directing the work of CMEs. That issue has been considered by the Board in a large number of cases including the recent ones of Alter Barge Line, Inc., 336 NLRB 1266 (2001), and Ingram Barge Co., 336 NLRB 1155 (2001). Respondent argued that Alter Barge and Ingram Barge are similar to the instant situation. However, at issue in those cases were river boat pilots and the pilots unlike the port engineers, were fully responsible for the safety of the crew, the tug boats, and groups of barges that were often several hundred yards long, at times when the pilot was on duty. The pilots, again unlike the port engineers, were licensed wheelhouse officers. Pilots did not perform routine work that other members of the crew performed.

Counsel for the General Counsel argued that the test for determining whether an employee is a supervisor was set out in Cooper/T. Smith, Inc. v. NLRB, 325 NLRB No. 28 (not reported in Board volumes), enfd. 177 F.3d 1259 (11th Cir. 1999): (1) does the employee have the authority to engage in one of the 12 listed activities,7 (2) does the exercise of that authority require the use of independent judgment, and (3) does the employee hold the authority in the interest of the employer.

I find the credited evidence failed to support Respondent’s argument that port engineers “responsibly directed GFC’s workforce during cargo operations, bore responsibility for activities that happened during their watch and were the senior company officials present at the worksite for most of the standard work week.” Instead the record showed that port engineers performed the same work as other members of a crew and engaged in routine judgment in assigning each member of the crew to perform preassigned work. The port engineers did not exercise independent judgment. In the most pressing situation, —i.e., the determination of whether a down crane should be replaced by another crane,—the port engineer simply notified Port Everglades and the supervisory port engineer of the problem. It was the supervisory port engineer that made the decision of whether or not to call up a new crane to replace the one needing repair.

Contrary to Respondent’s argument, the evidence proved that port engineers did not have authority to promote, evaluate, or discipline GFC employees or to effectively recommend such action. The port engineers were not shown to have “authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or adjust grievances, or effectively recommend such action.” I find that the port engineers were not supervisors. Instead the port engineers were employees entitled to the protection of the Act including the right to engage in union activity.

iv. calendar of events including alleged
unfair labor practices

Respondent and the Union have been parties to successive collective-bargaining agreements from 1993, until the most recent contract expired in 2000. The 1993 bargaining unit included senior port engineers, supervisory port engineers, port engineers, and assistant port engineers. During the 1993 contract, Respondent’s bargaining unit actually included one senior port engineer, one supervisory port engineer, two port engineers, and no assistants.

The 1995 collective-bargaining agreement was effective from August 14, 1995, through August 13, 2000. The bargaining unit in that contract included all port engineers. The 1995 contract was extended from August 13 to September 13, 2000 (GC Exh. 32). In the fall of 2000, Respondent employed 7 port engineers in the bargaining unit. Those seven were Michael Crehan, Timothy Herring, Peter Leahy, Rudolph Veiga, Scott Zinsius, Jody Thomas, and Michael Galka and all seven were members of the Union. Respondent also employed supervisory port engineer, Mark Aloisio, and senior port engineer, Stanley Ciecierski. The parties stipulated that both Aloisio and Ciecierski were supervisors. In view of the full record I find that at material times, “all port engineers” constituted an appropriate bargaining unit.

Several other employees worked at Midport and Southport at Port Everglades on the gantry cranes in the fall of 2000. All those employees were classified as crane maintenance electricians (CME). Three crane maintenance electricians worked at Respondent’s Midport facility and nine crane maintenance electricians worked at its Southport facility. The CMEs employed by Respondent at Southport and the CMEs employed at Midport by a subcontractor,—Eller, Inc.—were represented by different labor organizations (i.e., Seafarers International Union and International Longshoremen’s Association).

Respondent signed a new 5-year agreement with Broward County on April 13, 2000. Broward County signed the contract on May 2, 2000 (GC Exh. 4).

On May 16, 2000, the Union notified Respondent that it wished to negotiate a modification of the contract (GC Exh. 30). On May 30, Respondent notified the Union that it wished to terminate the contract (GC Exh. 31). The parties met informally before the first formal negotiation session. Paul Krupa, the chief negotiator for the Union, testified that Respondent owner, Gerald Charlton, made signals that he didn’t know if he wanted to continue our relationship. Charlton was talking about other unions and he didn’t need MEBA.

The first formal negotiation session was held on September 8. Thomas Wotring represented Respondent and Paul Krupa and Richard Hirn represented the Union. Respondent met with the Union for negotiations at various times from September into December 2000. Respondent submitted a written contract proposal (GC Exh. 33), which was dated September 8. The Union faxed Respondent a written proposal on September 27 (GC Exh. 34). The parties met in an October 6 negotiating session. Respondent made a proposal, which included a $2000 signing bonus for each employee and a 2-percent base wage increase each year for the 5-year term of the proposed contract (GC Exh. 35). The parties reached agreement on some issues.

The parties next met on October 17. The Union proposed reduction of its original proposed base wage rate by $1000. The parties held a November 7 bargaining session. The outstanding issues at the end of the November 7 meeting included wages, senior port engineer’s grievance authority, overtime calculations, and seniority layoff provisions.

In regard to the alleged unfair labor practices, the General Counsel alleged that Respondent’s conduct was unlawful (see captions below which are stated in bold):

November 14 and December 8 and 15, 2000

Offered regressive collective bargaining proposals including decreased wage rates and removing work from the unit.

November 14 and December 15, 2000 and
January 2 and 16, 2001

Refused to meet and bargain after request by the Union.

November 14 and December 19, 2000 and
January 21, 2001

Prematurely declared impasse and threatened to implement its last proposal.

November 28, 2000 and January 2, 8 and 16, 2001

Insisted on written counterproposals from the Union before negotiating.

November, December 6 and 11, 2000

Assigned bargaining unit work to individuals outside the unit:

December 13, 2000

Laid off it employee Jody Thomas.

January 23, 2001

Implemented a retroactive 1.5% wage increase and changed other terms and conditions of employment.

January 24, 2001

Posted an announcement of a newly created position of crane maintenance technician.

Changed the port engineer job classification to position of crane maintenance technician.

Late January 2001

By Gerald F. Charlton:

Threatened unit employees that non-union employees would perform their work.

Threatened unit employees that there would be no payment of contractual benefits.

Threatened to discharge unit employees because of the union.

By Ed Conden:

Threatened employees with discharge because of the union.

January 29, 2001

Withdrew recognition of the Union.

February 1, 2001

Discharged all employees in the unit.

Continually assigned all bargaining unit work to crane maintenance technicians.

By Gerald F. Charlton:

Promised employees job opportunities if they abandoned their union membership.

November 14

Respondent’s chief negotiator wrote the Union’s Paul Krupa on November 14, 2000 (GC Exh. 36):

This is in response to our most recent negotiations session held in your office on Tuesday, November 7, 2000. As we discussed, despite numerous meetings and the best intentions from both sides, there appears to be no meaningful movement on the part of either party toward a new collective bargaining agreement. GFC has now operated for approximately 60 days without a contract and it is becoming increasingly obvious that the productivity and morale of our Union-represented supervisors is suffering. We believe that our current impasse will only continue to interfere with the performance of our work at Port Everglades.

With the understanding that we are taking the following course of action reluctantly, and only as a last resort, GFC hereby extends its best and final offer for a contract covering our MEBA-represented supervisors employed at Port Everglades. Should this offer be rejected by the Union, it is our intention to implement its terms effective at 12:01 a.m., November 27, 2000. We believe that this timeframe will provide the Union and the bargaining unit members with an opportunity to carefully consider our offer and make an informed decision.

With regards to our best and final offer, the terms of that offer as to all open items of November 7, 2000, is as follows:

(1) Section 12.2—Amend and delete the phrase “the Port engineer (CM) with the least seniority” and add “the “Company shall reduce the workforce based on qualifications, work performance and seniority.” Delete second sentence.

(2) Section 23.1—Amend to delete automatic step increase. Change dates to new five-year contract. Increase base wage for the first year for each employee by 1.5% with additional increases for each year as follows: year two–3%; year three–3.5%; year four–3.5%; and year five–4%.

(3) Section 24.1—Amend first sentence by adding “unless such schedule is reduced due to reduced workloads, Port closings, weather or other circumstances beyond the Company’s control.”

Amend to delete existing second sentence and add new second and third sentences as follows: “Overtime will be paid at 1.5 times their regular hourly rate for every hour actually worked in excess of 40 hours in a calendar week (Monday through Sunday).

1. Section 36.1—Amend dates to reflect new five-year agreement. As to all other open items as of November 7, 2000, the Company’s final proposal is that these items remain unchanged from the prior collective bargaining agreement. All changes agreed to by the parties in our pervious negotiations sessions will be recognized by the Company.

I trust that our position and our resolve is clear. If you have any questions, please contact me.

The Union, through its attorney, Richard J. Hirn, responded with a letter dated November 21, 2000 (GC Exh. 37). In that letter the Union stated its belief that the parties were not at impasse and pointed out:

“The parties have met only a few times. There are many open issues. Many important issues have been discussed only briefly and have been tabled. The company’s letter of November 14 contains new proposals that have not yet been discussed.”

The Union letter listed several examples of items it asserted Respondent listed on November 14 that had not been discussed during negotiations. The letter continued:

With regard to the key issue of wage rates, the company’s November 14 proposal is ambiguous and contains either new or regressive elements that require further face-to-face discussion. On the one hand, it appears from Mr. Wotring’s letter that the company is now offering to place all Port Engineers on the “first year” rather than the “start year” salary rate in return for waiving further step increases. This is good progress and needs to be explored further. If that was not Mr. Wotring’s intent, the company’s latest proposal is less than its last offer, which was a 2% initial wage increase, plus a $2,000 bonus, which was not mentioned in Mr. Wotring’s letter. Simply stated, it is unclear from Mr. Wotring’s letter what the company is now proposing on this crucial issue.

For these reasons, it is clear to us that the parties are not at impasse. Therefore, any attempt by the company to unilaterally implement its last offer at this time would be illegal, and we urge that it not be done. The better—and only legal—course would be to schedule further negotiations sessions. By copy of this letter, I urge Mr. Wotring to call Mr. Krupa to arrange dates for such further meetings.

Respondent’s negotiator, Wotring, responded by fax on November 22 (GC Exh. 38). Among other things Wotring argued that the Union had agreed to provide language regarding the role on the senior port engineer in grievance proceedings and specifically for contract sections 24.1 and 25.1, but had failed to do so. Wotring argued that the Company’s position on layoffs had not changed since the outset of negotiations. Wotring went on to state:

It has and continues to be the Company’s position that the compensation and independence of our port engineers requires that they be held to a higher standard than are our other employees. Therefore, job performance and qualifications are at least as important as seniority. Again, there can be no confusion over either the meaning or intent of the Company’s proposal of the Union’s consistent and adamant rejection of that proposal.

Finally, with regard to the wage issue, Mr. Hirn’s professed confusion is at the same time both amusing and disingenuous. You know very well that you and Mr. Clements objected most strongly to the Company’s proposal to pay a $2000 bonus for the first year of the contract with no increase to the basic wage. At our last session on November 7, 2000, in response to your objection, I said that the alternative for the first year would be the increase that the Company received from the County—specifically the 1.5% increase to the base wage. That is indeed set forth in our final offer. While Mr. Hirn can be confused as much as he likes, you know better.

In the final analysis, there has been little if any movement from the Union on the core issues in these negotiations. To claim that the parties are not at impasse on these critical issues is merely posturing and legal maneuvering. Most of the items listed in Mr. Hirn’s letter are either no longer in dispute or are inconsequential. If the Union is prepared to make meaningful counterproposals on the core issues, please let me know no later than Sunday, November 26, 2000.

The Union’s November 24 reply (GC Exh. 39) included the following:

The union will be prepared to make meaningful counterproposals at our December 1, 2000 meeting.

We intend to approach this negotiation session with an open mind and with hope that creative approaches will be found to satisfy both parties’ needs on all these issues. We are dismayed that you have characterized the company’s latest proposals as its “final” offer when there are unexplored avenues that may result in an ultimate contract that satisfies each parties needs and alleviates their fears and concerns.

In summary, we will be prepared with our counterproposals on December 1, 2000 and we hope the company will be prepared to do the same.

November 28

Respondent’s negotiator, Wotring, responded to the Union’s November 24 letter (GC Exh. 39) on November 28 (GC Exh. 40):

In anticipation of our scheduled negotiation session on December 1, 2000 and as a follow-up to my letter of November 24, 2000, I am encouraged by your intention to be prepared with counterproposals. Nevertheless, if we are to have any hope of making progress, the Union must be prepared to present those counterproposals in writing. As I have stated in previous correspondence, we have been promised written proposals on a number of items that have never been provided to us. Therefore, so that we do not continue to waste any more time and money, please let me know before Friday whether the Union is prepared to present written counterproposals on the following critical issues:

1. Wage increases and fringe benefit contributions;

2. Layoff procedures;

3. Overtime calculations; and

4. The role of the Senior Port Engineer in the grievance procedure.

November 30

Respondent wrote employee Jody Thomas (GC Exh. 13):

This is to inform you that the company is reducing its labor force and restructuring its organization and composition of the workforce. Therefore, you are being laid off effective December 13, 2000.

December 8

The parties met for negotiations. Respondent advised the Union that it intended to restructure its work force and it was being forced to layoff one employee due to declining business. Respondent’s negotiator, Wotring, testified that Respondent told the Union that “the combination of their, their economic proposals which they had not moved off of since September and the ongoing dispute over the qualification of the people the Union wanted us to hire or that were already there, led GFC to believe that it had to sort of restructure, reorder, whatever words you want to use, Jerry (Gerald Charlton) used the word restructure, how the services were delivered to Port Everglades” (Tr. 627). Wotring went on to testify that there was a problem from Respondent’s point of view, of the competence of a number of the people (port engineers), the wage demands the Union was making and the cargo was down at Port Everglades, and that something had to give and there would be layoffs. The Union objected and asked to meet after it had time to consider Respondent’s restructure plans. The Union’s president told Respondent that job security and work jurisdiction were most important and the Union could reach agreement on money. The Union asked Respondent to reconsider its decision to lay off Jody Thomas in view of the recent discharge of Mike Galka. Respondent refused the Union’s request.

December 13

Jody Thomas’ layoff was effective on December 13. He worked as a port engineer at Midport. Respondent hired Thomas on September 8, 1999. He is a member of MEBA District 1 and has worked through the Union since 1985. His immediate supervisor was the senior port engineer, Stanley Ciecierski. As shown above, Thomas received a letter from Respondent’s president, Gerald Charlton, dated November 30, 2000, advising him that he would be laid off on December 13, 2000. Thomas filed a grievance over his pending layoff. After receiving his layoff notice, Thomas also filed two grievances regarding nonunit employees performing bargaining unit work.

After receiving his notice of layoff, Thomas learned that another port engineer, Mike Galka, had been terminated around December 6 or 8. He went to Stanley Ciecierski and asked if he was still going to be laid off since Respondent was then short one port engineer. Ciecierski said that he had already spoken with Gerry and that Thomas was still going to be laid off. Thomas wrote in his grievance that Galka had been terminated. Respondent told both the Union and Thomas that Thomas’ layoff would go ahead even though Galka had been terminated for cause. At the time of Thomas’s layoff all the port engineers were members of the Union.

December 15

The Union’s negotiator, Paul Krupa, testified that the parties met to negotiate on December 15. Respondent’s negotiator, Wotring, testified that the parties had a short negotiating meeting on December 15. Krupa testified that Respondent mentioned the number of port engineers that would be left after they restructured the work force and that Respondent would pick up some technicians. The Union presented a written proposal in an effort to preserve the jurisdiction of bargaining unit work (GC Exh. 56):

The requirement for a crane engineer is to provide technical expertise on the various systems associated with crane maintenance and operation including but not limited to electrical, electronic, mechanical, hydraulic and computer systems. He shall continue to function as a working supervisor with respect to overseeing the proper operation and maintenance of the cranes and associated equipment.

It shall be the duty of the PE to direct the execution of duties of the CME and any and all other maintenance personnel. Accordingly, whenever there is work being performed by any maintenance personnel, there shall be at least one PE on duty. In addition, there shall be a PE on duty during cargo operations.

The Union asked for another meeting. The Respondent’s negotiator, Wotring, walked out of the meeting. That was the last time the parties met for negotiations.

Respondent, through its president, Charlton, responded to Thomas’ grievance over his layoff (GC Exh. 72) on December 18:

This is in response to the grievance filed by you dated December 8, 2000, regarding your layoff. We have discussed this matter with your Messrs. O’Toole, Krupa, and Clements on two separate occasions. As we told them, the lack of cargo at Port Everglades has made it clear that the company cannot continue to employee [sic] the number of supervisory personnel that it has in the past. As you know, the Company has attempted to convince your MEBA representatives that layoffs should not be made solely on the basis of seniority, but our proposal has been consistently rejected by the Union. Therefore, as the most junior Port Engineer, you have been designated for layoff. While we sincerely regret having to take this step, there is no violation of the collective bargaining agreement. Your grievance is denied.

December 19

Respondent wrote the Union on December 19. The letter (GC Exh. 44), included, among other things, the following:

I am out of patience. To be clear, your proposal of December 15 regarding work jurisdiction is rejected. The Company proposals of November 14, 2000 covering wages, fringe benefits, overtime calculation and layoff procedures are still on the table. All other Union proposals on open items are rejected. The Company requests that its final offer be presented promptly to the bargaining unit members for a ratification vote. Recognizing that this is an internal Union matter, the Company nevertheless believes that its employees desire an end to this process and should be given an opportunity to voice their opinions. Should our final offer be rejected, the Company reserves the right to implement the terms of its final offer.