Seafarers International Union

National Labor Relations Board - Board Decisions

Mar 23, 1973

202 N.L.R.B. 657 (N.L.R.B. 1973)

SEAFARERS INTERNATIONAL UNION 657
Seafarers International Union of North America,
Atlantic, Gulf, Lakes & Inland Waters District,
AFL-CIO (Isthmian Lines, Inc.) and James
Moyles. Case 23-CB-1222
March 23, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On March 27, 1972, Administrative Law Judge'
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the Administrative
Law Judge's rulings, findings,2 and conclusions to
the extent consistent herewith.
The Administrative Law Judge based his finding
that Respondent violated Section 8(b)(1)(A) and (2)
of the Act on the effect of Texas' right-to-work law
on Charging Party James Moyles' obligation to pay
dues. While we agree that Respondent violated
Section 8(b)(1)(A) and (2) of the Act, we do so only
for the reasons enumerated herein.3
The issue herein involves the manner in which
Respondent operated its exclusive hiring halls in
refusing to refer Moyles. Respondent operates
exclusive hiring halls for seamen in various ports,
including Houston, Texas, through which Respon-
dent refers seamen for shipping employment.4 For
purposes of such referrals, Respondent has estab-
lished qualification levels "A"5 "B," and "C." A
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
While we agree with the Administrative Law Judge's general statement
that it is a violation of Section 8(b)(1)(A) and (2) of the Act for a union
operating an exclusive hiring hall to deny referral for employment to a
qualified applicant because he is not a union member, we do not adopt the
Administrative Law Judge's broad generalization that it is likewise a
violation of the above section of the Act for a union to deny referral for
employment to one of its members who is not in good standing because of
nonpayment of union dues
3 In view of our findings, we need not pass on the Administrative Law
Judge's findings and conclusions with respect to the application of Texas'
right-to-work law to the facts of the instant case
202 NLRB No. 91
seamen becomes qualified for a "B" rating when he
has shipped6 for 90 days in each of two consecutive
years. A "C" rating is given to those seamen without
seniority. All seamen seeking referral from Respon-
dent's hiring hall are given registration cards which
indicate their rating. Seamen with "C" ratings are not
referred while there are seamen available with "B"
ratings. Likewise, "B" rated seamen are not referred
while "A" rated seamen are available.
Respondent also maintains a membership system
under which it issues "A," "B," and "C" membership
"books" to its members, which correspond to the
afore-mentioned registration cards.?
Moyles is a merchant seaman who became a
member of Respondent in 1960. Moyles had, in the
past, procured employment through Respondent's
hiring hall, but became permanently unfit for duty in
1968 for health reasons.8 In February 1970, Moyles
was pronounced fit for duty and was issued a "B"
registration card at Respondent's Houston, Texas,
hiring hall. Finding no work available through the
Houston hiring hall, Moyles went to Respondent's
San Francisco hiring hall. Before he could be
referred for employment, however, the San Francisco
hiring hall confirmed Moyles' "B" registration
credentials with Respondent's Houston office. Upon
such confirmation, Moyles was referred and he
shipped to Vietnam. Upon his return to the United
States, Moyles was again shipped to Vietnam, again-
on a "B" registration card.
In September 1970, Moyles shipped out of Hous-
ton on his "B" card. In all, Moyles had a total of 199
days shipping time in 1970. On April 5, 1971, Moyles
was referred for employment on his "B" card and
shipped out of Houston on an Isthmian Lines vessel.
He returned on this vessel to the Port of Newark on
or about July 22, 1971. At the ship's "payoff,"
according to Moyles, Union "Port Patrolman" Hall
demanded that Moyles pay his union dues plus a
$250 initiation fee.9 Moyles refused to pay the
4 Respondent has in force about 100 contracts with various steamship
lines Such contracts are signed in New York, but administered by
Respondent at other ports outside New York All such contracts have the
standard 30-day union-security clause
5 The qualifications for attaining an "A" classification are not material
herein
6 That is, has been regularly employed as an unlicensed seaman aboard
one or more American- flag merchant vessels covered by a collective-
bargaining agreement between the Union and the owner or operator of the
vessel
7 In its brief Respondent refers to art 5, sec 2, of its constitution, which
lists only two membership classifications "full book membership" and
"probationary "
8 Par 1(F) of Respondent's shipping rules states , "The ninety (90) day
period of employment required of a seaman during any year to constitute
shipping regularly within the meaning of these Rules shall be reduced
proportionately in accord with the amount of time spent by such seamen
during that year as a bona fide in- or out-patient in the continuing care of a
U S P H S or other accredited hospital "
s Moyles testified that this $250 initiation fee was in fact a required
(Continued)
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
initiation fee, but offered to pay his accrued dues.
Hall refused to accept Moyles' dues without the
initiation fee and referred Moyles to Luigi Myers,
another "Port Patrolman." Myers also refused to
accept Moyles' dues without the initiation fee.
On July 23, 1971, Respondent's New York head-
quarters sent a teletype to all ports, directing them
that "James Moyles . . . refused to pay dues and
init[iation] . . . . he is not to be registered or shipped
until cleared by New York."
Moyles returned to Houston and on July 24, 1971,
presented himself at Respondent's hiring hall for
registration and referral. At this time he offered to
pay his dues but was told that he would not be issued
a "B" registration unless he paid the $250 initiation
fee plus union dues for 1968 and 1969. Moyles, to no
avail, stated that he was not obligated for 1968 and
1969 dues as he was permanently unfit for duty
during that period of time.
On July 28, 1971, Respondent's Houston office
wired the Respondent's New York headquarters
requesting a complete dues record on Moyles. On
that same date, Respondent's New York office
informed the Houston office that Moyles owed $250
initiation, dues for the last 3 quarters of 1967, all of
1968 and 1969, and 2 quarters of 1971.
Shortly thereafter, Moyles renewed his request for
"B" registration at the Houston office. He was told
that he would have to first pay dues for the last 3
quarters of 1967, all of 1968 and 1969, and a $100
fine for dues delinquency plus a $250 initiation fee.
Upon Moyles' refusal to pay, he was issued a "C"
registration card.
On October 5, 1971, in reply to a letter from
Moyles inquiring why he was being denied "B"
registration, Respondent's New York office informed
Moyles by letter that Moyles lost his seniority
because of not shipping in 1968 and 1969. The letter
also stated that although Moyles had shipped 199
days in 1970, he had shipped only 29 days in 1971,10
and could therefore be registered only in "C" status.
This same letter also detailed Moyles' alleged dues
and initiation deficiencies and returned Moyles'
proffered $86 check for Union dues.
Moyles has not secured any job referral from the
Houston hiring hall since July 1971.
It is an established principle that it is a prima facie
violation of the Act for a union operating an
exclusive hiring hall to refuse to refer an applicant
because of union considerations. However, there is
available to a respondent union in such a case the
defense that the employee was a delinquent union
member under a lawful union-security clause.11
Respondent argues in its brief that this, indeed, was
the case with Moyles.12 Thus, Respondent argues
that article 5, section 2 of Respondent's constitution,
effective January 1, 1970, requires each probationary
member to pay a $500 initiation fee except that
previous payment on account of initiation fees and
assessments not exceeding $250 shall be credited
towards such $500 initiation. And, it asserts that
Moyles was required to pay such $250 initiation fee
and he continually refused to do so, thus authorizing
Respondent's refusal to register Moyles as a "B"
seniority seaman within the unit at the Houston
hiring hall. We find this argument to be without
merit.
We note initially that Respondent's constitution
was not introduced into evidence at the trial, but was
instead attached to Respondent's brief to the Board.
Secondly, while Respondent's constitution lists two
classifications of membership (probationary and
fullbook) the record testimony indicates that there
were in fact three classifications of membership:
"A," "B," and "C." Further, assuming , arguendo, that
probationary members are required to pay an
initiation fee, there is no evidence submitted by
Respondent that Moyles was a probationary mem-
ber. Indeed, we find no record evidence to explain
why Moyles would be charged an initiation fee when
he had previously paid an initiation fee at the time he
first joined Respondent Union in 1960. The only
explanation is found in General Counsel's Exhibit 5
which is a letter from Al Kerr, secretary-treasurer of
Respondent, to Moyles dated October 5, 1971, which
states that because Moyles did not ship during the
years 1968 and 1969, Moyles commenced employ-
ment in 1970 as a "C" man requiring the payments of
union monetary obligations as a new man. However,
as discussed both supra and infra, Moyles was unfit
for duty during those years and was therefore neither
required to pay dues during that period nor could he
have then lost his status as a member in good
standing.
Respondent argues in its brief that the General
Counsel failed to prove that Moyles, in fact, was
permanently unfit for duty during the years 1968 and
1969. The record disputes such a contention. Thus,
Moyles testified to the fact that he was permanently
unfit for duty during the years in question. At no
time did Respondent offer any evidence which would
rebut Moyles' testimony, in spite of the fact that
political donation However, such was not alleged in the complaint, nor was 1107, Acme Fast Freight, Inc, 134 NLRB 1131
it litigated 12 Respondent did not raise this defense during the trial, although the
10 As previously noted, Moyles had well over 90 days shipping time in General Counsel presented evidence that Moyles, in fact, had no
1971, thus the 29-day figure given to him by Respondent was erroneous outstanding monetary obligations to Respondent , except for 2 quarters'
11 General Motors Corporation, Packard Electric Division, 134 NLRB dues for 1971, which Moyles tendered but Respondent refused to accept.
SEAFARERS INTERNATIONAL UNION
Respondent was given a continuance of about 3
weeks in order to investigate and contest Moyles'
testimony. Under these circumstances, we find that
the General Counsel proved by a preponderance of
the evidence that Moyles was in fact permanently
unfit for duty during the years in question. Thus, we
find no merit in Respondent's argument that it
proved that Moyles, commencing with the year 1970,
was a new man who was obligated to pay a new
initiation fee.
The foregoing facts reveal that Moyles had no
monetary obligation to Respondent, other than for
the second- and third-quarter dues of 1971, which
Moyles, in fact, tendered to Respondent. According-
ly, we conclude that Respondent has failed to prove
that it refused to refer Moyles in a "B" classification
solely because of his dues and initiation fee delin-
quency. Thus, by its conduct, Respondent violated
Section 8(b)(1)(A) and (2) of the Act.13
THE REMEDY
In order to effectuate the policies of the Act, it is
found necessary to order Respondent to (1) cease
and desist from the unfair labor practices, found, and
from like or related unfair labor practices; (2) take
certain affirmative action, including making whole
James Moyles for a loss of earnings computed on a
quarterly basis, plus interest at 6 percent per annum,
as prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716; and (3) post appropriate notices.
659
positions for which he is qualified, in accordance
with Respondent's normal hiring hall procedure and
practice.
(b) Make James Moyles whole for loss of earnings
suffered as a result of the discrimination against him
in the manner set forth in the section above entitled
"The Remedy."
(c) Post at its offices, meeting halls, and hiring halls
copies of the attached notice marked "Appendix." 14
Copies of said notice, on forms provided by the
Regional Director for Region 23, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members and, employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
13 Moreover, when in July 1971 "Port Patrolman" Glidewell refused to
register and refer Moyles in a "B" seniority , in part for Moyles ' refusal to
pay a $100 fine for dues delinquency, such a refusal to refer Moyles in itself
amounted to a violation of Sec 8(b)(1)(A) and (2) of the Act The Radio
Officers' Union of the Commercial Telegraphers Union, AFL v N L R B, 347
US 17,40-41
14 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Seafarers International Union of North America,
Atlantic, Gulf, Lakes & Inland Waters District,
AFL-CIO, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause any employer
within the meaning of the Act 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 refer James Moyles for employ-
ment in accordance with Respondent's normal hiring
hall procedure and practice.
(c) In any like or related manner restraining or
coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Refer James Moyles for employment to
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice:
WE WILL NOT cause or attempt to cause any
employer, within the meaning of the Act, to
refuse to hire or in any other manner discriminate
against James Moyles in violation of Section
8(a)(3) of the Act.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed under the Act.
WE WILL make James Moyles whole for loss of
pay suffered as a consequence of our having
refused to refer him for employment in accord-
ance with our normal hiring hall procedure and
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice, and we will refer James Moyles for
employment to positions for which he is qualified.
FINDINGS AND CONCLUSIONS
II. PARTIES; JURISDICTION
SEAFARERS
INTERNATIONAL UNION
OF NORTH AMERICA,
ATLANTIC, GULF, LAKES
& INLAND WATERS
DISTRICT , AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Dallas-Brazos Building, 1125 Brazos
Street, Houston, Texas 77002, Telephone
713-226-4296.
TRIAL EXAMINER'S DECISION
1. PRELIMINARY STATEMENT
STANLEY N. OHLBAUM, Trial Examiner: This proceeding,
under the National Labor Relations Act, as amended, 29
U.S.C. Sec. 151 et seq (Act), brought on by complaint of
the General Counsel of the National Labor Relations
Board issued through the Regional Director for Region 23
at Houston, Texas, on December 10, 1971, as amended at
the hearing herein, based upon a charge filed on October
15, 1971, by James Moyles (also known as James R.
Moyles), was heard before me in Houston, Texas, on
January 20-21 and February 15, 1972. All parties partici-
pated throughout in person or through counsel and were
afforded full opportunity to present evidence and conten-
tions, propose findings and conclusions, and file briefs.
Time having been allowed for that purpose, on March 15 a
brief was filed on behalf of Respondent.
The issue presented is whether Respondent has violated
Section 8(b)(1)(A) and (2) of the Act by discriminatonly
refusing to register or refer Moyles for appropriate
employment through its exclusive hiring hall facilities.
Upon the entire records and brief, as well as my
observations of the testimonial demeanor of the witnesses,
I make the following:
I Hearing transcript corrected in respect to obvious and typographical
errors set forth in "Appendix A " [Omitted from publication 1
2 Respondent Union's resident port agent , Drozak, testified that
Respondent has in force about 100 such contracts, signed in New York, but
administered by it at Houston Port for ships touching there
1' 1 e , has been regularly employed as an unlicensed seaman aboard one
At all material times, Respondent has been and is a labor
organization within the meaning of Section 2(5) of the Act.
At all of those times, Isthmian Lines, Inc., has been and is
a Connecticut corporation with principal office and place
of business in Stamford in that State, engaged in the
shipping industry primarily from the port of New York in
the State of New York. During the representative year
immediately preceding issuance of the complaint, in the
course and conduct of its said business, Isthnuan Lines,
Inc., received gross revenues exceeding $500,000 in
connection with the operation of steamship vessels in
interstate and foreign commerce . In said operations , at said
times, Isthmian Lines, Inc., has been required to or has
utilized and utilizes workmen procured by it and referred
to it through hiring halls and facilities of Respondent
Union, under the terms of a contract between it and said
Union.
I find that at all material times Isthiman Lines, Inc., has
been and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that
assertion of jurisdiction in this proceeding is proper.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found
Under contract2 with miscellaneous steamship lines
(including Isthmian Lines, Inc.), plying a foreign as well as
coastal trade, Respondent Union operates exclusive hiring
halls for seamen in various ports including Houston,
Texas. Respondent maintains that it refers seamen for
shipping employment, through these hiring halls, in
accordance with a nondiscriminatory qualification seniori-
ty system, without regard to union membership, as it
concedes is required by the Act. For purposes of such
referrals, Respondent has established qualification levels
-with corresponding "registration" or identification
cards issued by it-"C," `B," and "A." A "C" card is
issued to a seaman job applicant without seniority; a "B"
card is issued to a seaman job applicant who has
"shipped" 3 for 90 days in each of 2 consecutive years; and
an "A" card is issued to a seaman job applicant who has
"shipped" for 90 days in each of 8 consecutive years and
who meets certain educational requirements.4 Each such
card-allegedly issued, it is reiterated, without regard to
union affiliation-entitles the bearer to employment
referral and employment at the qualification level corres-
ponding to the letter designation (i.e., "A," "B," or "C")
on the card, the "A" level being the highest and best paid.
However, a seaman actually satisfying higher level require-
ments may, at his option, accept lower level employment.
Respondent Union also has a membership system under
which it issues "A," "B," and "C" membership "books" to
or more American -flag merchant vessels covered by a collective agreement
between the Union and the owner or operator
4 The qualification categorization as set forth above is an adequate
description for purposes here material There are, however, other features
-such as "grandfather" provisions-not involved here
SEAFARERS INTERNATIONAL UNION
its members, corresponding to the aforedescribed "A,"
"B," and "C" employment referral or "registration" cards.
Union regional (Houston, etc.) Port Agent Drozak testified
that "Union [membership book] classification has nothing
to do with shipping or registration or seniority."
Charging Party James Moyles, an able-bodied merchant
seaman, paid an initiation fee and became a member of
Respondent Union in 1960. He has procured shipping
employments through Respondent's hiring hall facilities,
shipping during the past few years primarily from
Houston. After a period of unfitness for duty for health
reasons 1968-69,5 followed by pronouncement in February
1970 as again fit for duty, he was issued a "B" registration
card at Respondent's Houston hiring hall. Since, however,
he received no job there, he went to the same Union's San
Francisco hiring hall, where-after his qualificational
registration credentials were confirmed with the Union's
Houston office-he was referred to employment and
shipped out to Vietnam early in 1970, returning to the port
of San Francisco. Upon his return, he made another such
trip from San Francisco to Vietnam, again on a "B" card.
At the end of September 1970, he shipped out of the port of
Houston, again on a "B" card, this time to Indonesia.
Subsequently, again registering for employment at and
through Respondent's hiring hall at Houston on Apri l 5,
1971, Moyles shipped out of Houston to Vietnam, on a "B"
card, on an Isthmian Lines vessel which put in at a South
Carolina port to load ammunition. He returned on that
vessel to the port of Newark (near New York, N.Y.),
arriving there on or about July 22, 1971. At the ship crew's
"payoff" on that arrival, according to Moyles, a demand
was made upon him by Union Port Patrolman Hall for
union dues plus a $250 "SPAD" donations Declining to
pay SPAD, Moyles tendered his accrued union dues.?
Refusing to accept Moyles' union dues without $250
additional SPAD, Union Port Patrolman Hall referred
Moyles to the other port patrolman, Luigi Meyers, who
likewise refused. Apparently Moyles was told at this point
that the $250 was for initiation, which Moyles declined to
pay, stating that he did not desire an "A" union book.
Moyles thereupon at once returned to Houston, where on
July 24 he presented himself at Respondent's hiring hall for
registration and employment there offering Respondent's
Houston Port Patrolman Perez to pay his union dues but
not SPAD. Perez referred Moyles to Regional Port Agent
Drozak, who indicated that Moyles would not be issued a
"B" (i.e., his then existing and appropriate) registration by
the hiring hall unless he paid the $250 plus union dues for
1968 and 1969. Moyles pointed out that he was not
5 Possibly commencing in December 1967
s According to Moyles, a "SPAD" or "log" donation is a "political"
contribution For reasons which will appear, the precise nature or purpose
of this exaction is not material here
7 According to Moyles' calculations, $86 for two quarters. For reasons
which will appear, the precise amou-it of Moyles' union dues or other union
obligation is likewise not material here
8 See Ins 7 and 8, supra
9 As has been indicated, Moyles was incapacitated from December
1967-69 However, as has also been indicated, the extent of Moyles' union
membership indebtedness is immaterial here
10 Although Respondent's letter states "commencing with the year
1968," the following context clearly indicates that what is intended is prior
to 1968
661
obligated for 1968-69 union dues since he was incapacitat-
ed by illness during that period, and he again fruitlessly
offered to pay his accrued union dues for two quarters but
without SPAD.8 When, a few days later , Moyles renewed
his request for "B" registration at Respondent's Houston
hinng hall, he was informed-this time by Union Houston
Port Patrolman and Dispatcher Glidewell-that he would
first have to pay dues for the last three quarters of 1967, all
of 1968 and 1969, and a $100 fine for dues delinquency,
plus a $250 initiation fee. At the same time , Glidewell
refused Moyles' request for a "B" card, stating he would
give him only a "C" card. When Moyles thereupon asked
Glidewell to issue him such a (i.e., "C") card, Glidewell did
so, at the same time smilingly remarking, however, "Try
and catch a ship."
Although not known to Moyles at the time-but as
established at the hearing here-while this was going on,
there took place an interchange of telegrams or teletypes
between Respondent's New York headquarters and its
Houston office. Thus, a telegram or teletype dated July 23,
1971, from Respondent's New York headquarters, ad-
dressed to "All Ports," informs and directs them that
"James Moyles . . . refused to pay dues and init[iation ] fee
at the payoff SS Steee [sic ] Maker 7-22-71. He is not to be
registered or shipped until cleared by New York." On July
28, Respondent Houston Port Agent Drozak wired
Respondent's New York headquarters requesting "a
complete dues record on the above mentioned [James
Moyles]. Also if this man has been fined [and for] what
.... This is important." In response to this request, on
the same date (July 28), Respondent's New York head-
quarters informed its Houston office and Drozak that
"member" Moyles "owes: $250 init plus 2 3 4 qtr 1967 all 4
qtr 1968, 1969 2 3 qtr 1971" and had "refused to pay back
dues or init[iation] at payoff of the SS Steel Apprentice on
6-25-70 in Wilmington, North Carolina." 9
By letter dated July 30, 1971, Moyles inquired of
Respondent's New York official, Hall, why he was being
"denied ... the right to ship as a B man" and how he
could regain this right. By letter of October 5, Respon-
dent's New York office informed him that although he had
"B" seniority status for employment purposes prior to 10
1968, he had lost his seniority because of not shipping in
1968-69,11 so that thereafter his seniority was only "C";
that although Moyles had sailed 199 days in 1970 he had
sailed only 29 days in 1971, or less than 90 days in 1971,
insufficient to attain "B" status, and that he could not
register or be shipped other than in "C" status 12 The same
11 It is undisputed that , as shown above, this was because of physical
disability, which, under the Union's shipping rules may toll seniority
interruption At any rate, it is also undisputed that Moyles was in fact
restored to and sailed uninterruptedly in "B" status throughout 1970 and
1971 until the Union' s refusal to continue his "B" registration commencing
in July 1971 under the circumstances described.
12 That this is factually incorrect is shown by Moyles' described credited
testimony, establishing shipping in 1971 at least from April 5 to July 22, or a
period in excess of the required 90 days for that year Respondent 's shipping
rules define "shipping" for employment seniority purposes as "employ-
[ment]" aboard a contractually covered vessel . Furthermore, it is undisput-
ed that during 1970 and 1971 Moyles shipped on "B" cards issued to him by
Respondent's hiring hall
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter then details Moyles' alleged union dues and other
union membership monetary obligations,13 and returns
Moyles' proferred $86 union dues check with the statement
that he is no longer "a member in good standing under the
union shop provisions of the collective bargaining agree-
ments in force and effect between the Union and
contracted companies."14
Although Moyles has presented himself regularly since
the end of July 1971 at Respondent's Houston hiring hall,
soliciting referral for shipping employment, it is undisputed
that he has not secured job referral. On January 12,
1972-approximately a week before the opening of the
hearing in the instant proceeding-Respondent's Houston
hiring hall reissued to Moyles his "B" card, without his
paying any union dues (notwithstanding continued de-
mand therefor) and without any sailing time in addition to
what he had had when denied such a "B" card in the
interval since July 1971. I credit Moyles' testimony that at
no time15 was he told that he lacked sufficient sailing time
to qualify for a "B" card; that on no occasion material to
this proceeding was he informed that no "B" (or other)
card could be issued to him unless he first presented any
document, such as proof of good health; that at no time
material to this proceeding was any such document
required or requested of him; and that at all times here
material Respondent was actually in possession of all facts
sufficient to continue Moyles in "B" seniority status and to
require it to so register and refer him.
B. Respondent's Defenses, Discussion and Further
Findings
In view of Moyles' testimony concerning occurrences at
the ports of Newark and San Francisco, as described
above, at Respondent's request in the interest of fairness, I
granted a continuance of about 3 weeks in order to enable
Respondent to investigate and contest Moyles' testimony,
by deposition or otherwise as it might be advised, expressly
inviting application for appropriate relief under the
circumstances. However, no application was made and
when the hearing was continued after this prolonged
interval, Respondent failed to contest Moyles' account of
those events, leaving Moyles' account in those respects
uncontradicted. I credit Moyles' testimony as to what
transpired in those places, as described above.
With regard to occurrences at the Port of Houston,
Moyles' testimony is in certain respects controverted by
Respondent Union's Houston officials, Wilburn and
Glidewell; and to a certain extent by its Houston port
agent, Drozak, while testifying as General Counsel's
adverse witness.
13 According to the Union's October 5, 1971, letter, these consist of five
quarters for 1970 and 1971 (it being conceded that Moyles paid, and the
Union accepted and retained, his dues for the first quarter of 1971) plus an
initiation fee of undisclosed nature or amount (Unlike previous demands of
the Union, the letter expressly states there is no obligation on Moyles in
respect to 1967, 1968, or 1969 dues) It is again reiterated that the extent of
Moyles' union-related financial obligations is not material to the basic issue
in this proceeding
19 Whether or not this is so, as shown below, those provisions could, at
any rate in Texas, a "right-to-work" State, have no effect on Moyles'
entitlement under the Act to nondiscriminatory job referral without regard
to union status, or upon Respondent's obligation to so refer him for
employment from its exclusive hiring hall
Thus, Drozak swore that at no time did Moyles ask him
(Drozak) to register him for a job. Although I credit
Moyles' testimony in this regard, even if Drozak's version
is assumed to be techmcally accurate, this would not be
conclusive, since such requests to register for "a job," by
Moyles or any other job applicant, would in the usual
course be made to Respondent's job dispatcher (i.e.,
Wilburn) or patrolman (e.g., Glidewell or Perez) on duty at
a particular time at its hiring hall. Furthermore, it is to be
noted, as will be recalled, that Drozak was under express
written orders from Respondent's New York headquarters,
through its described telegram or teletype of July 23, that
in view of his allegedly having "refused to pay [union] dues
and init[iation] fee at the payoff SS Steee [sic] Maker
7-22-71" at the port of Newark, Moyles "is not to be
registered or shipped until cleared by New York." In view
of this July 23 telegram or teletype (which bears an
indication of receipt in Houston by July 26), I do not credit
Drozak's testimony that on July 28 when Moyles asked
him how much he owed to get his "B" book, Drozak was
unaware that Moyles had dust shipped into New York and
had then come to Houston; even according to Drozak's
testimony, it was this July 23 message from his New York
headquarters which prompted Drozak's telecommunica-
tion of July 28 to his New York headquarters requesting
precise details, with the closing admonition that "this is
important." As has been indicated, Drozak was called by
General Counsel as an adverse witness; he testified as the
first witness in the case. Despite Respondent's express
reservation of the right to recall Drozak as a witness later
in the case, Drozak was not recalled to contradict Moyles'
testimony. Under these circumstances and the record as a
whole, including comparative testimonial demeanor as
observed, to the extent of possible inconsistency between
the testimony of Moyles and that of Drozak, I credit that
of Moyles as described above.
Further with regard to occurrences at the port of
Houston, Respondent's Houston hiring hall dispatcher,
Wilburn, testifying at some length, provided an account
distinguished by its numerous twists and turns. He first
testified (on direct examination) that he has in fact
dispatched on both "B" and "C" cards since July 1971,
adding that Moyles has not "competed" for any such job.16
On cross-examination, after testifying that he shipped
nonmembers as well as union members out on "B" and
"C" cards since July 1971, he was unable to cite a single
specific instance where a nonmember of the Union was
shipped out on a "B" card.17 He then switched his earlier
testimony around by swearing he was unable to remember
whether he referred anybody out on a "C" card since July
15 1 e, other than the described letter of October 5 from Respondent's
New York headquarters, which was erroneous as shown above
16 It would not be surprising if Moyles did not compete for any such job,
since it is Moyles' basic contention that Respondent did not permit him to
so compete
17 He later attempted to take partial refuge in his claim that the Houston
hiring hall sends all of its records to the Union's New York headquarters
Assuming this to be true, it does not satisfactorily explain why those records
were not procured for this hearing, particularly in view of the described 3-
week continuance in the hearing for such a purpose, as well as the further
fact that certain of those records were indeed brought by Respondent to the
continued hearing here
SEAFARERS INTERNATIONAL UNION 663
1971. In response to ensuing questioning designed to
attempt to clarify his conflicting testimonial yield, he swore
that he had not shipped any nonmember of the Union on a
"B" card from August through October 197118; and that he
had no recollection as to whether he had shipped out any
union member on a "B" card during the same period.19 He
thereupon volunteered that the described July 23, 1971,
telecommunication from the Union's New York headquar-
ters to Houston, directing "all ports" that Moyles was "not
to be registered or shipped until cleared by New York"
because of his alleged failure to pay union dues and
initiation fee-which he admitted seeing-was "irrelevant
here because this is Texas." It is nevertheless the undema-
ble fact that that telecommunication was received and
acted upon by Respondent's Houston hiring hall and
officials so as to deny Moyles job referral for union
membership-related reasons. Finally, Wilburn testified that
the "great majority" of seamen shipped through Respon-
dent's Houston hiring hall are members of Respondent
Union. While denying (on cross-examination) any conver-
sation with Moyles about registering him for shipment or
about dues,20 Wilburn (on redirect examination) claimed
to be unable to "remember" whether Moyles was present
at the hiring hall from July through October 1971 seeking
referral. As may be surmised, I was left with a distinctly
poor impression of Wilburn's credibility because of his
unconcealed hostility, arrogant mien, evasiveness, pleas of
allegedly defective memory when serving his purpose,
contradictions, and demeanor while testifying.
Respondent's Houston patrolman and part-time hiring
hall dispatcher, Glidewell, testified that on October 30,
1971, when Moyles presented himself at the hiring hall
counter with his seaman's papers for job registration
referral, he refused to establish "proof of seniority"
demanded by Glidewell and that Moyles also failed to
present a discharge slip or clinic card; but Glidewell
nevertheless issued to Moyles a "C" registration card. With
regard to this, to begin with, it is to be noted that
Glidewell's testimony is limited to the date October 30 and
no other occasion; that it is unclear what "proof of
seniority" was demanded of Moyles, and even more
unclear what could or should have been required of him in
view of the fact that the Union had his records and, as
shown and found above, was well aware of the facts as to
his seniority, and had even been for over a year and a half
previously continuously issuing him "B" cards; that in no
way was any indication given or request made to Moyles to
show his last discharge papers (which Moyles had filed
with Respondent's New York headquarters in late August
or early September in connection with his vacation pay) or
a clinic card-a request with which, if made, there is no
reason to suppose Moyles could not promptly have
18 Wilburn attempted to retrieve this on further redirect examination by
agreeing, in response to leading questions, that he could not "remember"
whether he did
19 Called by Respondent in surrebuttal, Respondent's Houston port
patrolman and records custodian, Perez, established that its available
records for October 26-December 27, 1971, show around 100 seamen
referred and shipped out on "B" cards, 15-20 on "C" cards, and 150 on "A"
cards The majority of these were able-bodied seamen, as is Moyles. (Able-
bodied ["AB" or "A/B" ] or ordinary [i e, apprentice] seamen work on the
deck and not in the ship's mess )
20 Primarily because of my di,unctly poor impressions of Wilburn's
complied, since he had those papers readily available for
display if required 21; and that, finally, notwithstanding
these alleged failures on Moyles' part, Glidewell neverthe-
less did register Moyles and issue a "C" card to him. The
question immediately arises-and is here not satisfactorily
answered-why, then, was Moyles not issued his usual "B"
card as he had been for the previous year and a half? In
attempted explanation, Respondent has produced, and
Glidewell refers to, a written directive from Union Vice
President Shepard at its New York headquarters to
Houston Port Agent Drozak, dated June 2, 1969, posted on
the Houston hiring hall bulletin board. To be sure, this
states that upon registration certain documents are
required, including the last discharge papers and clinic
card referred to in Glidewell's testimony. However, this is
not to say that production thereof cannot be waived or
postponed; and I credit Moyles' testimony that he was at
no time asked for either of these, which in any event he
possessed for ready display upon request. Furthermore, the
described June 2, 1969, directive displayed on Respon-
dent's Houston hiring hall bulletin board also requires as
one of the "items ... necessary for a man to register" for
employment there, a "Union membership book," with the
admonition that "No one22 is to be registered or shipped if any
of these credentials are lacking unless and until the matter has
been cleared by Headquarters. Verification may be made by
teletype. "23 Glidewell's protestation during cross-examina-
tion, that this directive does not apply to "C" registrations
is incredible and rejected; not only does the directive in no
way indicate it does not apply to "C" registrations, but
clearly all of the reasons for requiring seamen's and health
documents (concededly so by Glidewell) would apply also
to "C" job referrals. Furthermore, the requirement of
"Union membership book" as an absolute precondition
("No one is to be registered or shipped" without such) for
job referral, posted on Respondent's Houston hiring hall
bulletin board, is perhaps the best proof of Moyles' charge
and General Counsel's contention here-namely, that this
Texas exclusive hiring hall conditions job referral on
applicants' possession of a "Union membership book," in
direct and clear violation of the Act. Before leaving the
subject of the testimony of Glidewell-a witness at times
given to evasion and openly devoted to promotion of
Respondent's interests and a witness whose testimony was
in part incredible-it is to be noted that at the hearing he
denied having had any conversation with Moyles in July
1971. Moyles' overall testimony is, however, consistent
with such a conversation with Glidewell having occurred in
early August, which Glidewell did not deny. Finally, I
discredit as incredible Glidewell's testimony that although
he was a dues collector he was nevertheless totally ignorant
of Moyles' alleged union-dues indebtedness and never so
credibility for reasons set forth in the accompanying text, and my favorable
demeanor impressions of Moyles, I credit Moyles' rebuttal testimony to the
contrary
21 Respondent's own "Shipping Rules" (G.C Exh 3, p 15), indicate all
of such papers may not be strictly required
22 The words "No one" are emphasized by underlining in the posted
letter of June 2, 1969, all other emphasis above is supplied
23' The indicated invitation to verify by teletype to New York headquar-
ters would, for example, be directly applicable to Moyles' "last discharge,"
which, known to the Union of course as shown above, took place there at
the end of July 1971
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
much as mentioned this subject to him, and that he was not
informed by Houston Port Agent Drozak or anybody else
that Moyles was "not to be registered or shipped until
cleared by New York," as expressly ordered in the July 23,
1971, directive from the Union's New York headquarters.24
It is a violation of Section 8(b)(1)(A) and (2) of the Act
for a union operating an exclusive hiring hall to deny
referral for employment to a qualified applicant because he
is not a union member. It is a corollary to this that it is
likewise a violation of that section for a union operating an
exclusive hiring hall to deny referral for employment to
one of its members who is not in good standing because of
nonpayment of union dues. Although in certain States it is
lawful to require maintenance of union membership or
payment of equivalent dues or charges, by employees
within a fixed period of time after entering employment
through express provisions to that effect in a collective
agreement, this would not be true in a so-called "right-to-
work" State such as Texas, where under no circumstances
may the requirement of union membership (or, under the
Act, nonmembership) be made a condition of employment
or continued employment.
Respondent conceded upon the record at the conclusion
of the case that it could not "properly deny Moyles referral
for employment because of any union dues delinquency";
and that "any union dues delinquency, if any, by Moyles is
irrelevant to the issues here."
It is, however, in my opinion, abundantly clear upon the
record, including Respondent's own described documents
as well as Moyles' credited testimony, that it was for this
reason alone-namely, alleged-delinquencies in union dues
and other payments, or alleged failure to be "a [union]
member in good standing" that Moyles was denied
continued "B" card registration and referral upon and
since his return from Vietnam, on or about July 22, 1971,
in violation of Section 8(b)(1)(A) and (2) of the Act. It is so
found.
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
1. Seafarers International Union of North America,
Atlantic , Gulf, Lakes & Inland Waters District , AFL-CIO,
Respondent herein , at all times here material has been and
is a labor organization within the meaning of Section 2(5)
of the National Labor Relations Act, as amended
2. Isthmian Lines, Inc., at all times here material has
been and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of said Act.
3. Assertion of jurisdiction in this proceeding is proper.
4. By threatening not to, and by failing and refusing to,
appropriately register and refer James Moyles (also known
as James R. Moyles), the Charging Party herein, for
employment through Respondent 's exclusive hiring hall
facilities , on and since July 22, 1971, under the circum-
stances detailed and found in Section III, supra, because of
the failure of Moyles to pay certain union dues and other
union membership-related monetary obligations allegedly
due, Respondent has restrained and coerced Moyles and
employees in the exercise of rights guaranteed in Section 7,
thereby violating Section 8(b)(1)(A) of said Act.
5. By threatening not to, and by failing and refusing to,
appropriately register and refer said Moyles for employ-
ment through Respondent's exclusive hiring hall facilities,
on and since July 22, 1971, under the circumstances
detailed and found in Section III, supra, because of the
failure of Moyles to pay certain union dues and other
union membership-related monetary obligations allegedly
due, Respondent has attempted to cause and has caused
employers to discriminate against Moyles and other
employees in violation of Section 8(a)(3), thereby violating
Section 8(b)(2) of said Act.
6. The aforesaid unfair labor practices and each of
them affect commerce within the meaning of Section 2(6)
and (7) of said Act.
REMEDY
Since, as found, Moyles was wrongfully deprived of
nondiscriminatory opportunity for job referral, at least by
improperly denying him a "B" card for union membership-
related reasons as shown, it will be recommended that
Respondent Union be required to cease and desist from
any continuation25 or repetition of such unlawful conduct,
and that Respondent be required to take affirmative
actions designed to prevent a repetition. Inasmuch as
Respondent's described headquarters directive of June 2,
1969, requiring production of a "union membership book"
as a precondition to employment registration and referral
apparently continues to be posted in Respondent's exclu-
sive hiring facilities, such purported requirement should be
ordered to be deleted and discontinued at once. Respon-
dent should also be required to make Moyles whole for any
loss of pay he has suffered through Respondent's unlawful
conduct, by payment to him of the moneys he would
normally have earned, less any net earnings and any
proper offsets and deductions which may be due to the
Union, with interest on all of the foregoing, computed in
accordance with principles enunciated in F. W Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co,
138 NLRB 716. Respondent should also be required to
make Moyles whole for any rights and incidents he would
have obtained or accrued from any employment relation-
ship improperly foreclosed him through Respondent's
unlawful conduct; and Moyles' seniority for employment
registration and referral and other purposes should be
adjusted so that it will remain unaffected by reason of
Respondent's unlawful conduct. Cf. Pen and Pencil
Workers Union, Local 19593, AFL (Parker Pen Company),
91 NLRB 883. For all of these purposes Respondent
should be required to make available all records within its
possession or control, Finally, Respondent should also be
required to post an appropriate notice for the ascertain-
24 After continued questioning on this subject, Glidewell at last-while New York headquarters), he again hastily denied having seen or been told
insisting he had never been "told about it"-reluctantly conceded that he about it
had indeed "heard about it" since it was "more or less common knowledge 25 As indicated above, on January 12, 1972, the Union issued Moyles a
to everyone" that Moyles had "refused to pay his dues in New York " And, "B" card after he had filed with the NLRB the charge resulting in issuance
after conceding that he "might have seen it" (1 e , the July 23 teletype from of the complaint in the instant proceeding
SEAFARERS INTERNATIONAL UNION 665
ment of such matters and the computation ofe such services26, since, as shown above, its New York headquar-
amounts. to its members and other patrons of its hiring ters issues directives (e.g., that of July 23 , 1971, herein,
halls-in this case throughout the country, at all ports it directed to "all ports") mandating the carrying out by all of
its port installations of the described discriminatoryzfi Cf, e.g , Distract 65, Retail Clerks Union (The St John Associates, Inc , practices in violation of the Act.
et a!), 157 NLRB 615, enfd 375 F 2d 745 (C A 2), Teamsters, Local 901
(Associated Federal Hotels ), 193 NLRB No 90 [Recommended Order omitted from publication.]