Interseas Bulk Carriers, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1974

211 N.L.R.B. 932 (N.L.R.B. 1974)

932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Interseas Bulk Carriers, Inc. and James R. Moyles.
Seafarers International Union of North America-At-
lantic, Gulf, Lakes & Inland Waters District,
AFL-CIO (Interseas Bulk Carriers, Inc.) and
James R. Moyles.
Seafarers International Union of North America-At-
lantic, Gulf, Lakes & Inland Waters District,
AFL-CIO (Intercontinental Carriers , Inc., and
Various Ship Lines) and James R. Moyles. Cases
23-CA-4877, 23-CB-1447, and 23-CB-1425
June 24, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On February 26, 1974, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Respondent Union filed exceptions and support-
ing briefs , and the Respondent Employer filed a brief
in support of the Administrative Law Judge's
Decision.
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 conclusions2 of the Administrative
Law Judge, as modified herein,3 and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent Seafarers Interna-
tional Union of North America-Atlantic, Gulf,
i The Respondent Union and the General Counsel have 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, enfd. 188 F.2d 362 (C.A. 3,
1951). We have carefully examined the record and find no basis for
reversing his findings.
2 The Respondent Union excepts to the Administrative Law Judge's
conclusions and findings as to certain issues as erroneous , inflammable, and
prejudicial and indicative of an intent to reach a preconceived result. After
a careful examination of the entire record , the exceptions , the briefs, and the
Decision of the Administrative Law Judge, we are satisfied that these
allegations are without meet. In our opinion there is nothing in the record
or in the Decision of the Administrative Law Judge to suggest that the
Administrative Law Judge was biased or prejudiced or that he had
Lakes & Inland Waters District, AFL-CIO, Hous-
ton, Texas, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order, and that the complaint allegations herein
with respect to Respondent Interseas Bulk Carriers,
Inc., New York, New York, be, and they hereby are,
dismissed.
prejudged the case
3 In affirming the recommendation of the Administrative Law Judge
concerning the dismissal of the 8(a)(3) and ( 1) allegations in regard to the
Respondent Employer , we do not pass upon his finding that the amended
charge against the Respondent Employer was untimely.
The Administrative Law Judge 's citation for Seafarers International
Union, etc. (Isthmian Lines, Inc.), is hereby corrected to read 202 NLRB 657.
DECISION
STATEMENT OF THE CASE
MARION C. LADwIG, Administrative Law Judge: These
consolidated cases were tried at Houston , Texas, on
December 18-19, 1973.1 The charges were filed by the
individual , James Moyles , against the Union in Case
23-CB-1447 on February 8 and in Case 23-CB-1425 on
May 23, and against the Company on March 12.
Complaints were issued on August 7 and September 11,
1973 (and amended on September 11 and at the trial), and
orders of consolidation were issued on August 7 and
October 5, 1973.
The primary issues are whether (a) the Respondent
Union's inducement of the Respondent Company to
discharge Moyles on August 29 and the Union's refusal to
register him on May 22-while his earlier case against the
Union was being litigated before the Board and the
court-violated Section 8(b)(2) and (1)(A), and (b) the
charge against the Company2 was untimely , and, if not, the
Company's discharge of Moyles on August 29 violated
Section 8(a)(3) and ( 1) of the National Labor Relations
Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Union, and the
Company , I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, Interseas Bulk Carriers, Inc., and
Intercontinental Carriers, Inc., are New York corporations
engaged in the shipping industry. Each of them annually
receives gross revenues in excess of $50,000 for services
performed in connection with the operation of vessels in
interstate and foreign commerce. I find that each is an
employer engaged in commerce within the meaning of
i All dates are from August 1972 until May 1973, unless otherwise stated.
2 The original charge in Case 23-CA-4877 was filed on February 8
against Maritime Overseas Corporation . The Company, Interseas Bulk
Carriers, Inc., was added as a Respondent in an amended charge filed on
March 12. After it was developed at the trial that the Company , and not
MOC, was the employer of Moyles, the complaint was dismissed as to
MOC, and the style of the case was amended accordingly-as well as the
name of the employer involved in Case 23-CB-1425
211 NLRB No. 141
INTERSEAS BULK CARRIERS
Section 2(6) and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Allegations Against the Union
1. Background
This is the second proceeding involving alleged unlawful
action taken by the Union against one of its members,
Moyles, who declined in 1971 to pay to the Union an
additional $250, which he considered to be a political
"donation" to SPAD (Seafarers' Political Action Dona-
tion).
As found in the earlier proceeding, Seafarers Internation-
al Union etc. (Isthmian Lines, Inc.), 203 NLRB No. 91
(1973), now pending before the Fifth Circuit for enforce-
ment, Moyles (a 35-year-old "AB," with a Class "B"
seniority rating receiving in 1961) tendered his current
union dues (for the 2d and 3d quarters of 1971) upon
returning on an ammunition ship from a trip to Vietnam.
The Union refused to accept the tendered dues because
Moyles declined to pay the additional $250, which the
Union advised was an initiation fee. Thereafter, the Union
demanded that Moyles pay dues for 3 quarters in 1967
(which he had already paid), all of 1968 and 1969 (when he
was permanently unfit for duty for health reasons), the 2d
and 3d quarters of 1971 (which he had tendered), and a
$100 fine for dues delinquency plus the $250 initiation fee.
The Union also reduced his seniority rating to Class "C."
After a trial in January and February 1972, and a
decision by the Administrative Law Judge on March 27,
1972, the Board issued its Decision and Order on March
23, 1973, finding that the Union violated Section 8(b)(1)(A)
and (2) of the Act. The Board held that Moyles had no
monetary obligation to the Union except dues for the 2
quarters in 1971 which he had tendered, and that the
Union "has failed to prove that it refused to refer Moyles
in a "B" classification solely because of his dues and
initiation fee delinquency." The Board ordered the Union
to make Moyles whole for loss of earnings suffered as a
result of the discrimination. The Union has declined to do
so.
As found in the earlier case, Moyles regularly presented
himself at the Union's Houston hiring hall from July 1971
(when he was given a "C" card) until January 1972, seeking
referral for shipping employment. However, having been
issued the lower-rated "C" registration card, he was unable
to secure any referrals. (When he was denied a "B" card,
and he asked for a "C" card, a union patrolman issued it to
him and smilingly remarked, "Try and catch a ship.") On
January 12, 1972, about a week before the first day of trial
in the earlier case, the Union again issued him a "B" card.
I also note that in the March 27, 1972, initial decision
(issued by the Administrative Law Judge 5 months before
the August 29 discharge involved in the present case), the
Administrative Law Judge made detailed findings concern-
ing the Union's action taken in 1971 against Moyles, but
based his findings of illegality on the application of the
Texas right-to-work law. On March 23, 1973 (2 months
933
before the Union's refusal to register Moyles in the present
case), the Board issued its Decision and Order, making
findings of illegal conduct on the Union's part without
passing on the application of the Texas law.
2. Causing Moyles' August 29 discharge
Between the date of the Administrative Law Judge's
decision in the earlier proceeding (March 1972) and the
date of the Board's Decision and Order (March 1973), the
Union permitted Moyles to register at its Houston, Texas,
hiring hall without requesting the payment of dues-ex-
plaining in its brief that this was "Clearly, for the purpose
of avoiding possible increased damages in the event" the
judge's ruling on the applicability of the Texas right-to-
work law was upheld.
However, after Moyles signed on the Company's
Overseas Bulker on July 10, 1972, and returned (from
Israel) on August 29 to a port outside Texas, the Union
caused the Company to discharge him at the payoff for
nonpayment of dues, threatening to tie up the ship unless
the Company did so. (The Company discharged him and
he was therefore denied another trip on the ship, which was
taking another load of grain to Israel.)
Moyles credibly testified that he was told by the union
patrolman (Louis Guarino) at the August 29 ship payoff at
Destrahan, Louisiana, that he owed dues for 1967 (last 3
quarters), 1968, 1969, 1971 (last 3 quarters), and 1972 (first
3 quarters). Moyles said he had already paid his 1967 dues,
and Guarino responded that Moyles still had these other
dues and "I would have to pay something on them."
Moyles said, "I try to pay my dues," but explained, "I got a
case against the Union, and when they pay me, I'll pay
you. . . . when I was in New York they wouldn't accept
my dues (for 1971 ] ... I tried to mail them in, and they
wouldn't accept them." Guarino repeated, "you owe '67,
'68, '69, '71, and '72." Moyles asked, "if I pay these dues
... would I be in good standing? Would I be all clear?"
Guarino answered, "no, we'll have to clear this thing up."
(Emphasis supplied.) Moyles then refused to pay anything.
Later, Guarino returned and said that "I would have to
pay some dues or they were going to take me off the ship."
Moyles still refused.
On cross-examination, Moyles testified:
Q. You felt they owed you money?
A. Yes, and I couldn't afford to pay dues because I
was out of work for quite a while, and I just didn't have
extra cash.
s s s s
Q. You testified before that you're not going to pay
unless you first get your money from the Union?
A. If I'm wrong. If I'm wrong, I'll pay my money.
Q. I understand.
A. But if I'm right, I don't pay a nickel. O. K.?
s s s s
Q. And it's clear in your mind he asked for '67,
'68-what you just testified to? That's clear in your
mind?
A. Yes.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. As clear as the day it was made to you in
August, 1972, it's equally clear to you today.
A. Well, I would have to say yes to that, because I
just listened to it. You see, I taped it.
Upon further examination, he testified that he recorded
the August 29 conversation with Patrolman Guarino, using
a shirt-pocket microphone, for "my own protection,
because they have a very bad memory. They say one thing
and then they seem to forget. . . . And this is kind of to
refresh them." (In the earlier proceeding, some of the
testimony by union representatives was discredited.)
Moyles' repeated offers to produce his tape recordings
received no response. (The admissibility of neither his
August 29 recording nor his recording of the later-
discussed February 5 conversation is in issue ; neither was
offered as evidence . The General Counsel agreed that they
be heard in camera , but the Union's counsel objected.)
Upon being discharged and removed from the ship,
Moyles returned to Houston and filed a charge against the
Union, with a supporting affidavit. The charge and
affidavit were sent to the Board 's New Orleans office, but
for some reason , were never received . Over 5 months later,
Moyles refiled the charge , with a supporting affidavit
which briefly referred to the August 29 incident as follows:
"... I intended to sign up for this ship again , but an SIU
representative told me that if I didn't pay some dues I
would have to get off the ship. I told the SIU representative
that I couldn't afford any dues until the union paid the
money they owed me."
The Union admits that it caused the Company to
discharge Moyles but vigorously denies that it demanded
dues for 1967, 1968, and 1969. Citing the testimony by
Patrolman Guarino and Stanley Zeagler , and the fact that
Moyles did not mention the earlier dues in his February
affidavit, the Union contends in its brief that "when
Moyles was aboard a vessel outside of Texas where such
right-to-work law would be inapplicable, such as Louisia-
na, counsel 's instructions were to demand dues commenc-
ing with the second -quarter 1971 to the then current time
... and when Moyles refused to pay the same, instruc-
tions [were given ] to implement the contractual union
security clause." However, there is no written confirmation
of such instructions being given at that time , and neither
Guarino nor Zeagler impressed me as being entirely
candid. From his demeanor on the stand, Moyles appeared
to be an honest witness . Particularly when he was testifying
on rebuttal , he impressed me as having a clear recollection
of what Guarino had told him about the 5 years of dues.
Having had his memory refreshed by his own tape
recording of the conversation, Moyles appeared to be a
trustworthy witness on the point-despite the wording of
the brief account of the incident given 5 months after-
wards. (Of course, there is no way of determining the
content of his first affidavit , which was given a few days
after the incident , but which has been lost.) I also consider
the argument in the Union's brief that the General Counsel
specified only the back dues for 1968 and 1969, and not for
1967, in his bill of particular. However, the explanation
was given at the trial that the General Counsel was alleging
dues which the Board in the earlier proceeding found
Moyles was not obligated to pay, and the General Counsel
had not realized that the Board 's findings had also
included the 1967 dues.
Thus I find that on August 29, when the Union caught
Moyles aboard a ship outside of Texas, and at a time when
the Union's initially found backpay obligation to Moyles
remained unpaid and was being litigated, the Union
advised Moyles (a) that he owed dues for 1967, 1968, 1969,
1971, and 1972, (b) that he had to pay some of the dues or
be discharged, and (c) that even if he did pay the dues, he
would not be in good standing : "we'll have to clear this
thing up"-implying that union charges would be filed
against him. The Union had already caused Moyles to miss
a considerable amount of work (while his rating was
reduced to class "C" and as a result of the protracted trial),
and he feared that further union action would be taken
against him even if he paid the dues . Under these
circumstances, he stated he could not afford to pay the
dues, and refused to pay anything at that time. However,
he promised to pay his dues when the Union paid him, or if
the ruling in his favor was reversed on appeal. (The
Union's brief argues that Moyles "apparently does not
intend to pay" for the "second quarter of 1971 and post,"
because he testified that if the Court finds he was wrong in
his first case, he would pay "if" he was going to sea.
However, Moyles testified, "I would pay it if I was going to
sea. This is my life [emphasis supplied ]. . . . If I'm wrong,
I'll pay my money.")
3. Later payoffs
At two payoffs also outside of Texas (in Louisiana, on
another of the Company's ships) following the August 29
incident, the Union demanded that Moyles pay dues but,
upon advice of counsel, did nothing to interfere with
Moyles' continued employment. At the second of these
later payoffs, the union agent told Moyles that the Union
..was wrong in pulling me off" the Overseas Bulker.
On October 29, after 2 months of employment, Moyles
was dispatched from the Union's Houston hiring hall to
the Company's Overseas Carrier. The first payoff on that
ship was on December 20 and the second on February 5.
Patrolman Thomas Gould was present at both payoffs, and
demanded that Moyles pay dues. On December 20, Moyles
said, "I'm not going to pay any until the Union pays me."
On February 5, Gould and Moyles had a lengthy
conversation (which Moyles recorded). Gould "told me
that the lawyer said for him to demand the money" but to
allow "me to stay on the ship ... he explained ... that
the Union was wrong in pulling me off the ship"-referring
to the Overseas Bulker. On cross-examination Moyles
testified:
Q. Didn't he say that the lawyers in New York had
told him, Mr. Gould, to demand of you your current
dues?
A. I'm not sure he said "current," but I've got a
tape on that if you want to listen to it, the whole
conversation.
s • s •
Q. Did ... he have any conversation with you, or
INTERSEAS BULK CARRIERS 935
your with him , about you weren't going to pay the
dues? , If ypu h4#, to._Jace charges, what's the sense of
paying dues if you got to face charges?
A. I asked him if I paid the dues would I be in good
standing.... In other words, if I took the money out of
my pocket and paid them, would everything be settled
with the Union? And he said no. [Emphasis supplied.]
Moyles further credibly testified that Gould said, "I
don't know whether you have charges against you or
not ... that's generally the last step," and that "if I
went ahead and played along and everything, I could
probably stay in the Union." Moyles added, "I don't
know his exact words. I've got them on tape if you
would like to hear them."
Patrolman Gould, an admitted agent of the Union,
testified that Moyles "owes this union a lot of money, but
we were instructed not to ask for any money prior to the
first quarter of '71 . . . that's in a court case in federal
court and that will come out at a later date." He also
testified that Moyles asked on February 5 "if I pay my
money, am I going to be in good standing? And I told him,
you asked me something there I can't answer you. You told
me that you won your case. I know they should settle it,
but it ain't for this level, from my level around here, to say
one way or the other what's going to happen on it."
(Emphasis supplied.) Moyles asked how much Gould was
demanding, and Gould answered, "Well, it's just the dues
at this time from the second quarter of '71 to current."
(Emphasis supplied.) Moyles "told me . . . [Union
President] Paul Hall won't give me my money.... I said,
well, he'll give it to you if the courts make him." Moyles
brought up about SPAD (Seafarers ' Political Action
Donation), and "I told him ... nobody is going to ask you
for no SPAD. He said, well, they did in the past. . . . I
ain't going to put up no SPAD. I said, nobody's asking you
to put up no SPAD." Later they were "talking about his A
book . . . He had been here long enough that he was entitled
to an A book. I said, that ain't got nothing to do with this
either . That could all get worked out. Because I had
understood that he had some sick time there [referring to
his illness in 1968 and 1969] , which the Constitution takes
care of on a seniority thing." (Emphasis supplied.)
Thus the Union-upon advice of counsel-was no
longer demanding 1967-69 dues "at this time," and was
permitting Moyles to continue shipping , even when found
aboard ship outside of Texas. However, it was demanding
that Moyles pay his current dues while the dispute over his
backpay from the Union was in litigation. The Union
continued to imply that he would still be in trouble with
the Union, even if he paid his dues.
Moyles did not make a third trip on the Overseas Carrier,
because of a car accident. He registered at the union hall
on February 20, and had to reregister in 90 days.
4. Refused registration
On March 23, the Board issued its Decision and Order,
requiring the Union to give Moyles backpay but not ruling
on the applicability of the Texas right-to-work law. The
Union decided to contest the backpay liability in court,
and to prevent Moyles from shipping. The Union ex-
plained in its brief, "As a consequence [of the Board's
failure to apply the right-to-work law], at that time there
was no impediment or fear of extensive damages in
invoking the contractual union security clause at the
Houston hiring hall."
Upon advice of counsel, the Union issued written
instructions that Moyles not be permitted to register again
unless he paid $344 in dues (from the 2d quarter in 1971
through the 1st quarter in 1973). Moyles was so advised on
May 22, when he attempted to reregister. (I make this
finding, although Moyles did not recall being told what
specific dues to pay. He did not record this conversation.)
Moyles stated that he could not afford to pay that amount,
but promised to bring his dues up to date when the Union
"paid me the money that it owed me." The Union refused
to register him, thereby denying him future referrals.
5. Contentions of the parties
The General Counsel contends that on August 29, when
the Union caused Moyles to be discharged from the
Overseas Bulker, the Union was demanding that he pay
dues for 1968 and 1969, for which Moyles was not liable.
The General Counsel also contends that "even if it should
be assumed that the Union was not demanding payment of
money to which it was not entitled, it . . . had clearly
contributed directly to Moyles' nonpayment of dues and
should be estopped from bringing about his discharge or
refusing to register and/or refer him for employment," and
therefore violated Section 8(b)(1)(A) and (2) of the Act.
The Union denies that it was demanding payment of
1968 and 1969 dues on August 29 (contrary to the
aforegoing findings). Concerning the question whether, "in
light of the decision of [an] Administrative Law Judge in
March 1972 and the Board's decision in March 1973, as a
consequence of which the Union may owe [Moyles] some
money . . . under those circumstances , would it be a
violation for the Union to have a Company refuse such
person employment and . . . refuse to register him for
referral to employment because he would not pay his
current dues until he received the money which may be due
him from the Union"-the Union's brief makes a number
of arguments. It contends, "There is no basis in law for
utilization of set off principles in the case at bar and more
so where as here, Moyles' claim if any, is unliquidated." It
contends that "Moyles is the classic free rider using the
Union's extensive hiring hall facilities, its recreation and
accommodations, installations, enjoying the fruits of
collective bargaining, without the payment of one red
cent." It contends (contrary to the above-quoted testimo-
ny) that Moyles "apparently does not intend to pay" for
the accrued dues if the Circuit Court does not enforce the
Board order. "And in the meantime, this free rider has
been enjoying himself to the tune of hundreds of dollars at
the expense of the seamen union members." It further
argues that if Moyles is proven wrong in the first case, "the
Union would be without remedy to recover the hundreds
of dollars of dues which Moyles admittedly owes," and
that the `only federal remedy provided against a person
such as free rider Moyles, is to seek his discharge from
employment under a valid union security clause.... At
bar the Union Constitution . . . provides . . . that
members more than one-quarter in arrears in dues are
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
automatically suspended and if more than two-quarters,
automatically dismissed . Applying such constitutional
provisions to the framework of the aforesaid applicable
contractual law holdings [that the member-union relation-
ship terminates when a member 's status lapses] , one comes
out to conclude, that the Union would have no remedy
against free riders such as Moyles , as Moyles with his
present delinquency would be a long terminated member,
and his fellow seamen would have to subsidize such free
rider. Such result . . . would encourage the congressionally
frowned upon free riders and wreck havoc upon industrial
relations."
6. Concluding findings
What began as a dispute over whether the Union's
demand for an additional $250 from a member was a
compulsory political "donation" or an additional initiation
fee, now has culminated in a carefully-prepared , counsel-
advised deprivation of the member 's livelihood as a
seaman . Instead of Moyles being a member in good
standing , with an "A" book (the service for which he
earned years ago), Moyles' membership is in jeopardy. This
results from the Union's earlier reprisals against him
(reducing his seniority from "B" to "C," falsely claiming
that he owed dues for 3 quarters in 1967, belatedly
claiming that he owed dues for 1968 and 1969 after having
already given him credit for this sick time, and fining him
$100 for dues delinquency), and from the Union's actions
in the present cases-causing him to be discharged on
August 29 for not paying all or part of dues which included
the dues for 1968 and 1969, and refusing to register him on
May 22 for not paying current dues-while the Union was
declining to pay, and was contesting before the Board and
in the court , the backpay which had been found was owing
by the Union to him.
Moyles may have been technically wrong in wanting to
set off his expected backpay against his accruing union
dues . But in the circumstances of this case, I find that the
Union owed him a higher degree of fairness , and acted
illegally in dealing with him as an adversary rather than a
member.
As held in another context , International Union of
Electrical Workers, Local 801 [General Motors Corp.] v.
N.LR.B., 307 F.2d 679, 683 (C.A.D.C., 1962):
Among the most important labor standards imposed
by the Act as amended is that of fair dealing , which is
demanded of unions in their dealings with employ-
ees.... The requirement of fair dealing between a
union and its members is in a sense fiduciary in nature
and arises out of two factors . One is the degree of
dependence of the individual employee on the union
organization ; the other , a corollary of the first, is the
comprehensive power vested in the union with respect
to the individual... .
A union may not treat as adversaries ... its
members . . . whose continued employment is depend-
ent upon union membership.
Whether or not the Union was right in demanding $250
from Moyles and reversing its decision to give him credit
for the 1968-69 dues, I find that the Union, in the
circumstances of this case , violated its obligations to him as
a member when having him discharged and when denying
him registration and referrals during the continued
litigation of the backpay issue in the earlier proceeding.
The Union had been found to be the prime wrongdoer.
Yet, while these findings were outstanding and not
reversed , the Union was disregarding its adjudicated
backpay liability to Moyles and was using its control over
the hiring and employment to compel him to pay it money.
At the same time, it was implying that even if he did pay
the dues in full, he would still have union charges to face.
I reject the Union's contention that Moyles is to be
regarded as a "free rider." He had previously paid his
initiation fee, dues, and assessments . When the dispute
arose over the additional $250, he repeatedly offered to pay
his current dues . The Union refused to accept them, and
reduced his seniority rating from "B" to "C," even though
he then had sufficient sailing time (since 1969) to entitle
him to a "B" rating, notwithstanding the Union 's belated
action in depriving him of credit for the sick time in 1968
and 1969 . Furthermore , he was not seeking to avoid paying
the accruing dues . He proposed to pay them from the
backpay which he expected after "winning" the earlier
case, or to pay them out of his pocket if the favorable
findings were reversed . If there were any doubt that he
would pay the accrued dues in the event the backpay order
was set aside, the Union at the least-as a matter of
fairness-should have suggested that he provide some
security for such payment.
I therefore find that the Union caused the Company to
discharge Moyles on August 29, and refused to register him
on May 22, depriving him of future referrals and
employment , for reasons other than his failure to tender
periodic dues and initiation fees, in violation of Section
8(b)(2) and (1XA) of the Act.
B. Allegations Against the Company
On August 29, the Union advised the Company that
Moyles was in arrears in his dues and that the crew would
not sail with Moyles on board. Thereupon, the Company
discharged Moyles.
The General Counsel contends that the Company had
reason to believe that the Union's request for Moyles'
discharge was based on grounds other than his failure to
tender timely dues. The Company has two primary
defenses : First , it contends that the complaint against it
must be dismissed , under Section 10(c) of the Act, because
the charge was filed against it more than 6 months after the
incident . Secondly , it denies that it had any reason to
believe that the discharge was demanded for any reason
other than the one stated . I find that both defenses have
merit.
Moyles' original charge was filed only against Maritime
Overseas Corporation-not his employer. The amended
charge, against the Company, was not filed until March
12-over 6 months after the August 29 incident. It was
therefore untimely.
Captain Grey Burns , who discharged Moyles , impressed
me as having a clearer recollection of what was said at the
time than Moyles (who did not record his conversations
INTERSEAS BULK CARRIERS 937
with Bums). I therefore credit Bums' denial that anything
w4.s said to cause the Company to believe that the Union
was demanding 'Moyles° discharge for any reason other
than his nonpayment of financial obligations to the Union.
Accordingly, I dismiss the Section 8(a)(3) and (1)
allegations against the Company.
CONCLUSIONS OF LAW
1. By causing the Company to discharge James Moyles
on August 29, 1972, and by refusing on May 22, 1973, to
register and thereafter refer Moyles for employment, for
reasons other than his failure to tender dues and initiation
fees, the Union engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(2) and (1)(A)
of the Act.
2. The Company did not violate Section 8(a)(3) and (1)
of the Act.
REMEDY
Having found that the Respondent Union has engaged
in certain unfair labor practices , I find it necessary to order
the Union to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
The Respondent Union having unlawfully caused an
employer to discharge James Moyles on August 29, 1972,
and unlawfully refused to register Moyles at its union hall
on May 22, 1973, and thereafter to refer him for shipping
employment, I find it necessary to order the Union to
make him whole for the resulting loss of seniority credit
and earnings, the backpay to be computed on a quarterly
basis plus interest at 6 percent per annum as prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
credit and earnings suffered as a result of the discrimina-
tion against him in the manner set forth in the "Remedy"
section of this Decision.
(c) Post at all its offices , meeting halls, and hiring halls
copies of the attached notice marked "Appendix."4 Copies
of the notice, on forms provided by the Regional Director
for Region 23, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent Union immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken by
the Respondent Union to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the
Respondent Union has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
against the Respondent Union insofar as they allege
violations of the Act not specifically found.
IT IS FURTHER ORDERED that the complaint against the
Respondent Company be dismissed in its entirety.
3 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order , and all objections thereto shall be
deemed waived for all purposes.
4 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
ORDERS
Respondent , Seafarers International Union of North
America-Atlantic, Gulf, Lakes and Inland Waters Dis-
trict, AFL-CIO, its officers , agents, representatives , shall:
1. Cease and desist from:
(a) Causing or attempting to cause any employer to deny
employment to, or in any other manner to discriminate
against , James Moyles in violation of Section 8(a)(3) of the
Act.
(b) Refusing to register and refer James Moyles for
employment in accordance with Respondent Union's
normal hiring hall procedure and practice.
(c) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Register James Moyles under his proper seniority
classification and refer him for employment to positions
for which he is qualified, in accordance with Respondent
Union's normal hiring hall procedure and practice.
(b) Make James Moyles whole for the loss of seniority
The National Labor Relations Board having found, after
trial, that we violated Federal Law by discriminatorily
causing an employer to discharge one of our members and
by discriminatorily refusing to register and refer the
member to other jobs:
WE WILL MAKE James Moyles whole for his loss of
seniority credit, and give him backpay for lost earnings,
plus 6 percent interest.
WE WILL register James Moyles under his proper
seniority classification and refer him to jobs in the
normal manner.
WE WILL NOT induce any employer to discriminate
against James Moyles.
SEAFARERS INTERNATIONAL
UNION OF NORTH
AMERICA-ATLANTIC, GULF,
LAKES AND INLAND
WATERS DISTRICT,
AFL-CIO
Dated By
(Representative) (Title)
9
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced by Any questions concerning this notice or compliance with
anyone. its provisions may be directed to the Board's Office,
This notice must remain posted for 60 consecutive days Dallas-Brazos Building, 1125 Brazos Street, Houston,
from the date of posting and must not be altered , defaced, Texas 77002, Telephone 713-226-4296.
or covered by any other material.