National Maritime Union of America

NATIONAL MARITIME UNION OF AMERICA National , Maritime Union of America, AFL-CIO and Gastop Firmin-Guyon. Case 2-CB-4616 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On March 3, 1969, Trial Examiner Louis Libbin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting brief. The Charging Party filed a motion to amend the complaint and exceptions to the Decision, and a supporting brief. The General Counsel filed an opposition to the motion, Respondent also filed an opposition to the motion, , and a supporting brief. Thereafter, the Charging Party filed a reply to Respondent's opposition, and also an answering brief to Respondent's exceptions and brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the motion, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' 'After the issuance of the Trial Examiner's Decision, the Charging Party filed a motion requesting that paragraph 7 of the complaint , which alleges that Respondent, on or about March 11 , 1968, refused to allow Gaston Firmin-Guyon to register for employment as an unlicensed seaman, be amended , in conformity with the proof, to include additional allegations that Respondent, on or about September 29, 1967, refused to permit Firmin-Guyon to register either for reshipping as Chief Deck Steward on the S S Santa Rosa of Grace Lines , Inc. or Line, employment as an unlicensed seaman in any other category . The Charging Party further requests that the Trial Examiner's findings, conclusions, and Recommended Order be modified in accordance with said amendments, or with the proof, or both . The Charging Party also filed exceptions to the Trial Examiner's failure to find in accordance with the motion to amend. The General Counsel filed an opposition on the grounds that the motion and exceptions pertain to matters outside the complaint, and that the allegations contained in the motion were previously resolved by the General Counsel , as set forth in the Trial Examiner' s Decision, and were not litigated at the hearing. Respondent filed an opposition on the grounds that the matter was not litigated at the hearing ; Respondent could not register Firmin-Guyon for reshipping as Chief Deck Steward , and there is no evidence that Respondent' s refusal to so register him coerced nonsupervisory employees. Without passing on other grounds, we find that the matter was not properly litigated at the hearing . Over Respondent's objection, testimony was introduced concerning the September 29, 1967 , refusal to register. ORDER 615 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, National Maritime Union of America, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. MEMBER JENKINS, concurring in part and dissenting in part: Contrary to my colleagues, I would grant the Charging Party's motion to include, as within the scope of the complaint, consideration of the additional allegation that the Respondent Union's refusal on or about September 29, 1967, to permit Firmin-Guyon to register for reshipping as Chief Deck Steward on the Santa Rosa was violative of Section 8(b)(1)(A) of the Act. The alleged conduct occurred within the Section 10(b) period, and, in my opinion, covered matters inseparably linked to the allegations of the complaint. Moreover, I find that all issues pertaining thereto were fully litigated. Thus, it is undisputed that on the morning of September 29, 1967, the Union's Chief Dispatcher Lucci refused to permit Guyon to register for reshipping at the hiring hall because Guyon had been expelled and was no longer a Union member, even though the Union was required to register nonmembers upon the payment of the required service fee which Guyon at that time offered to pay. From the evidence adduced at the hearing it is apparent that the fact that Guyon was seeking a supervisory Chief Deck Steward job at the time was not a major consideration. Lucci, for example, told Guyon, "you cannot reship on the Santa Rosa or any other ship here . . . From this day on, you're barred from the union hall, period. You can't even come in here. You have been expelled. You're are no longer a member . I don't want your service fee. I don't want to register you in any category ... You're barred from the hall forever...." The unmistakable conclusion from the record is that the refusal to permit Guyon to register on September 29 was for the same reason that he was denied registration on March 11, 1968: solely because of his intraunion activities while a member of the Union and his activities in opposition to the incumbent administration and officials of the Union. Clearly, such conduct was reasonably calculated to, and did restrain and coerce rank-and-file employees However, the General Counsel only offered it as background information (specifically denying that what happened on that day was being alleged as the subject of an unfair labor practice), and the Trial Examiner only admitted it as such. Respondent was not put on notice that this background information might later become crucial as the subject of an amendent to the complaint, and thus Respondent was not given adequate notice and opportunity to defend against the proposed amendment. Accordingly, the Charging Party's motion is hereby denied and its exceptions are hereby overruled. 177 NLRB No. 81 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the exercise of their rights guaranteed in Section 7 of the Act. I would, therefore, find that the Union' s refusal to register Guyon on September 29, 1967, violated Section 8(b)(1)(A) of the Act. See Reinforced Steel Workers Local 426, 164 NLRB No. 113; A. O. Smith Corp., 132 NLRB 339, 341, 393-394, modified on other grounds 343 F.2d 103, 111-112 (C.A. 7). Accordingly, I would modify the Trial Examiner's Recommended Remedy to conform to the above finding. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner: Upon charges filed on March 12, 1968, by Gaston Firmin-Guyon, an individual, herein sometimes called Gaston or Guyon, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2 (New York, New York), issued a complaint, dated June 27, 1968, against National Maritime Union of America, AFL-CIO, herein sometimes called the NMU, or the Union, or Respondent. With respect to the unfair labor practices , the complaint alleges, in substance, that on or about March 11, 1968, Respondent failed and refused to register Gaston Firmin-Guyon, the Charging Party herein, for employment as an unlicensed seaman because of his intraunion activities while a member of NMU and because of his activities in opposition to the officials and administration of NMU, and thereby violated Section 8(b)(1)(A) and 8 (b)(2) of the Act. In its duly filed answer, Respondent denies all unfair labor practice allegations. Pursuant to due notice, a hearing was held before me at New York, New York, from November 6 to 8, 1968, inclusive, and on November 12, 1968 . Counsel for the General Counsel and the Respondent appeared at the hearing and were given full opportunity to participate therein. On December 19, 1968, the General Counsel and Respondent filed briefs which I have fully considered. For the reasons hereinafter indicated , I find that Respondent violated Section 8(b)(1)(A) and (2) of the Act. Upon the entire record ' in the case, and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT 1. THE RESPONDENT The complaint alleges, and the answer admits, ( 1) that Respondent NMU is a voluntary unincorporated association which maintains an office and place of business in New York, New York, where it has at all times material herein continuously engaged in representing employees for the purposes of collective bargaining with various employers in the shipping industry, and (2) that at all times material herein said Respondent has functioned as the collective-bargaining representative of unlicensed personnel employed by various United States steamship companies on their ocean-going dry cargo, tanker , collier and passenger vessels operating out of Atlantic and Gulf ports of the United States. 'Obvious inadvertent errors in the typewritten transcript of the testimony arc noted and corrected in Appendix A [Omitted from publication]. Upon the above-admitted facts, I find, as Respondent's answer further admits, that Respondent at all times material herein has been and is a labor organization within the meaning of Section 2(5) of the Act. II. THE EMPLOYERS OPERATIONS ; JURISDICTION Among the steamship companies for whose unlicensed personnel Respondent has functioned as collective-bargaining representative and with which it has collective-bargaining contracts covering said personnel are American Export-Isbrandtsen Lines, Inc. (herein sometimes called American Export), Grace Line, Inc. (herein sometimes called Grace Lines), Moore-McCormack Lines, Inc. (herein sometimes called Moore-McCormack), and United States Lines, Inc. (herein sometimes called United States Lines), each of which companies operates a fleet of vessels , registered under the laws and flying the flag of the United States, which sail between United States ports and ports located outside the continental United States. American Export, Grace Lines, Moore-McCormack, and United States Lines each receive in excess of $500,000 annually from their ocean-going transportation services. Upon the above-admitted facts, I find, as Respondent further admits in its answer, that each of the above-named companies is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the Issue Gaston Firmin-Guyon has been a seaman all his life, serving in various capacities for over 20 years . He never performed any other type of work, and was 40 years old at the time of the instant hearing. He became a full member of the NMU in August 1946. The NMU has collective-bargaining agreements with various shipowners operating deep sea passenger , cargo, and tanker vessels . Pursuant to these agreements, the NMU operates lawful hiring halls in various ports. The NMU does not discriminate in the operation of these hiring halls between union and nonunion members so long as the nonunion member pays the prescribed service fee. However, under the applicable provisions of the collective-bargaining agreements, the Union is obligated to refer for employment "competent and dependable applicants" but "shall not be required to register for employment any unlicensed seaman whom it does not consider to be suitable for employment ." The agreements further provide that "in passing upon the suitability of applicants for registration," the Union "shall give consideration" to various matters, including the possession of "vicious tendencies." Respondent Union stipulated that during the period from September 29, 1967, to September 27, 1968, it denied Guyon registration for shipping as an unlicensed seaman. The principal issue in this case is whether Respondent took this action because of Guyon's "intra-union activities while a member of the NMU and his activities in opposition to the officials and administration of the NMU," as the complaint alleges and the General Counsel contends, or whether he possessed "vicious tendencies" and Respondent took this action only for that reason , as Respondent contends. NATIONAL MARITIME UNION OF AMERICA B. Principal Events and Activities Presented by General Counsel Unless otherwise indicated, the factual findings hereinafter set forth are not in dispute . They are based on credited testimony and documentary evidence wholly undenied or admitted and on stipulations of the parties. Evidence concerning events prior to September 12, 1967, which is more than 6 months before the filing of the charge in the instant case, was offered and received only for background purposes. 1. Guyon's intraunion and antiadministration activities; NMU's reactions thereto a. Candidate for port agent of New York in opposition to administration candidate The Union has a National office, consisting of the president, three vice presidents, a secretary-treasurer, and three National representatives . In addition, there are Port agents and patrolmen . At the time in question, there were 13 Port agents who had been elected to serve in a particular port as the officer in charge of that port, 13 Field patrolmen who were elected at large and assigned to ports by the National council in the National office, and about 73, patrolmen appointed by the National president subject to the approval of the National office. Field patrolmen are in charge of smaller ports while the Port agents are in charge of the larger ports. All of the foregoing, including all patrolmen, admittedly are agents of Respondent Union within the meaning of Sections 2(13) and 8(b) of the Act. In 1962, all NMU officers, including Port agents and elected patrolmen, were elected for a term of 4 years. The next NMU election was scheduled to be conducted between April 1 and May 31, 1966. Joseph Labaczewski, the then Acting Port agent for the port of New York, was the Administration's candidate for New York Port agent in this election. Guyon had been employed by the Grace Lines since 1961, virtually the entire time on its S.S . Santa Rosa. In January 1966 he decided to run for the office of Port agent for the port of New York in the forthcoming election. On January 7, 1966, on board the S.S. Santa Rosa while she was docked in the port of New York, Guyon met Labaczewski and asked him for a nomination form if he had any with him.' In response to Labaczewski's query as to why he wanted nomination forms , Guyon replied "well, I'm going to run in the election, the 1966 election." When Labaczewski then asked what Guyon was "going to run for," Guyon stated that he was going to run for port agent. Labaczewski thereupon asked in amazement, "do you mean New York port agent?" Guyon answered "yes, New York port agent." Labaczewski then got red in the face and exclaimed, "who the hell is going to vote for you! Those black bastards there in Haiti!" Guyon replied, "I don't know what you mean, who's going to vote for me. All I can tell you is I'm going to run and I 'm going to beat you ." Guyon added that he has been "a member of this union for twenty years and it's my right to run for office." Labaczewski thereupon called Guyon a "French bastard" and other obscene names which Guyon was reluctant to repeat at the instant hearing , and warned that "we have ways of dealing with you " and that "you're just inviting trouble." At ttii`s point, Guyon left that area, without having obtained any nomination forms from 617 Labaczewski who did not have any with him.' The S.S. Santa Rosa then left on its regular cruise into the Caribbean. On its return, it stopped at Port Everglades, Florida, which is "the first American port we hit before the ship comes back to the home port of New York." While at Port Everglades, Guyon was informed by Philip McGovern, the chief steward of the S.S.- Santa Rosa, an admitted supervisor within the meaning of the Act, that he did not understand what was happening because he had just received a telephone call from Longchamps, Grace Lines' Port steward, requesting him to start disciplinary action against Guyon immediately and to enter Guyon's name in the logbook for using improper language in passenger quarters on January 7, 1966, when the vessel departed from New York. Guyon thereupon immediately rushed down to the pier and telephoned William Perry, the assistant to NMU President Curran. Guyon stated, "Mr. Perry I don't understand what is going on here. I have just been informed that Mr. Labaczewski is instigating a logging action against me and is colluding with Mr. Longchamps from Grace Line." Perry replied that he did not "know what happened, but whatever happened, I am going to back the port agent on this," referring to Labaczewski. Perry added that Guyon had "cursed him [Labaczewski] out or something," and that the latter had told him "the whole story." Guyon remonstrated that apparently Perry had only "one side of the story," explained that Labaczewski "is the one who cursed me out and abused me that day just because I declared my intention of running for port agent," and pointed out that "it was my right as a member of the union for the last twenty years, dues paying member, to run for office if I chose to." Perry thereupon exclaimed, "You're a wise guy, aren't you!" and asked "how would you like somebody running for your job?" Guyon reiterated that it was his "right to run for the office." Perry immediately got angry over the telephone and retorted, "I'll fix you ... don't you worry" and hung up. Chief Steward McGovern refused to log Guyon for allegedly using profanity on board the S.S. Santa Rosa on January 7, 1966. Neither Perry nor Longchamps were called as witnesses and Respondent made no claim of their unavailability. Although Labaczewski testified as a witness for Respondent, he neither denied the above-described incident of January 7 nor that he was the one who instigated through Longchamps the unsuccessful attempt to have Guyon logged on the false charge of using profanity against him on January 7. Under all the circumstances, including Perry's responses to Guyon's accusations, I find that Labaczewski did in fact instigate the foregoing unsuccessful attempt to have Guyon logged on a false charge and that Perry subsequently condoned and supported Labaczewski's actions. 'Although Guyon knew that such forms were available in the Union's office, he asked Labaczewski for them "because it's the procedure to pick them up from the patrolman on the ship or the agent." "'Only those [candidates] challenging the administration [slate] were required [by the NMU] to nominate themselves by personally securing the official forms and personally soliciting the required signatures" as endorsements. This requirement was subsequently held to be unlawful, discriminatory, and one of the grounds for setting aside , and directing a new election. See Decision of United States District Court Judge Motley for the Southern District of New York , April 19, 1968, appearing in the record as G.C. Exh. 12, affirmed by Decision of Second Circuit Court of Appeals on July 29, 1968, appearing in the record as G.C. Exh. 13. [284 F. Supp. 47 (S.D.N.Y.), affil. 399 F.2d 544]. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The S.S. Santa Rosa arrived at the port of New York on the morning of January 20, 1966 . Guyon immediately began to perform his debarkation duties on the promenade deck. About 15 minutes later, NMU Chief Dispatcher Lucci, Steward's Dispatcher Crossley, Patrolman Cunningham , and a fourth unidentified person characterized in the record as a "goon ," accosted Guyon and requested him to accompany them to the lounge where they wanted to talk to him in private. When they arrived in the lounge, Lucci stated, "Now, I am under orders from the New York Port agent, Joseph Labaczewski, to pick up your union book, and that's why we're here." Guyon explained that he was busy with his debarkation duties and that they were interrupting his work, and challenged their "authority to pick up my union book ." Crossley then interjected , "Look, we want your union book . If you don' t give us your union book, we will go to your room and get it . We will break your locker open." When Guyon pointed out that his book was at home and not on the ship, Lucci retorted, "don't give us that. I'm telling you again that Port agent Labaczewski sent us down here to pick up the union book . We want it. If we don' t get the book you're not going to leave the ship in one piece." After a few more minutes of discussion, Lucci and Crossley left. Guyon then left and immediately went to the pier where he telephoned the F. B.I. and explained what had happened. He then telephoned the New York local police, and went back to the ship to advise the ship's captain of what had happened. The captain instructed Mr. Forward, the chief officer of the S.S. Santa Rosa, to escort Guyon to his room and to see to it that he was not molested and that his property was safeguarded. The local police then came aboard, and escorted Guyon to his room where he changed clothes, then to Longchamps' office on Grace Lines' pier where he had a talk with him, and then to Labaczewski's office in the NMU hall. Meanwhile, Erwin Treuhaft, the third steward on the S.S. Santa Rosa who had overheard the demands and threats made in the above-described incident, observed Lucci and Crossley a few minutes later pounding on the door to Gaston's room and hollering whether anyone had a key to let them in . When Treuhaft walked by again a few minutes later, he saw that the door to Guyon's room was open and that Lucci and Crossley were going through Guyon's clothes which were hanging up in the locker. Treuhalf looked and kept going. When he arrived in Labaczewski's office, Guyon asked what reason he had to send those three men down to abuse him . Labaczewski stated that "it's a misunderstanding," that "someone told me your dues weren' t paid up." Guyon told Labaczewski , "you know fully well if you want to check on my dues all you have to do is call up the bookkeeping department and you would see whether I was paid up or not ." (Guyon's dues were in fact paid up and he was in good standing). Labaczewski insisted that it was a "misunderstanding" and suggested that they go to the patrolmen 's room and "shake hands and forget everything." Guyon refused , stating that "all I want now that I'm here is my nomination form . I'm going to run for office." Labaczewski asked , "are you serious about this? Are you really going to run against me?" When Guyon replied that he was, Labaczewski announced, "you know you can't beat the slate anyway, so you would be wasting your time and your money." Guyon answered, "Well, I'm going to give it a good try. You believe that." When Guyon again asked for the nomination forms, Labaczewski asked him to produce his union book. Upon being told by Guyon that his book was at home, Labaczewski told him to "come back when you have your book and Mr. Morris (an NMU patrolman for the port of New York) will give you the forms." That afternoon, Guyon got his book from his home, brought it back and received his nomination forms from Patrolman Morris. At the instant hearing, Labaczewski did not deny having ordered the men to board the ship and to get Guyon to surrender and to seize his union book. I find that they were in fact acting on his orders. The next day, January 21, the S.S. Santa Rosa sailed on its voyage. That day Guyon wrote and then mailed a letter to Mr. Rowland, Grace Lines' Manager of Industrial Relations, with copies to NMU President Curran and Grace Lines' President McNeal, protesting the above-described incident of January 20 aboard the S.S. Santa Rosa and Longchamps' attempt a few days earlier to get Chief Steward McGovern to log him, as previously described. On January 26, 1966, a special meeting of the crew was called aboard the S.S. Santa Rosa for the main purpose of informing the crew of the incident of January 20. The crew unanimously voted to send letters of protest to NMU President Curran and to Grace Lines' president, requesting that appropriate measures be taken to prevent a recurrence of such a situation . Drafts of such letters were written , read aloud, and approved for mailing at the next port of call. The crew also went on record in support of Guyon and in support of any action taken by Curran and the National office on this case. The letters from the crew to NMU President Curran and to Grace Lines' President McNeal, protesting the January 20 incident involving Guyon, are dated January 26, 1966. The S.S. Santa Rosa returned from that trip to the port of New York on February 3. An announcement was made to the crew that there would be no signing off or payoff until everybody had reported for a meeting to be held in the first class dining room . Present at the meeting besides the crew were practically all NMU officials, including William Perry, assistant to President Curran, Shannon Wall, National secretary-treasurer, NMU Vice President Martin, National Representatives Nesbitt and Bocker, Port Agent Labaczewski, and all New York patrolmen. Conspicuously absent were Lucci, Crossley, and Cunningham. A meeting of this sort had never been convened previously. A few minutes before the meeting started, New York Patrolman Touhey asked Guyon to step in the foyer where he stated to Guyon, "I want to tell you something for your own good because we sail together, you're a friend of mine, and I don't want to see you getting into any more trouble." Touhey then urged Guyon to "forget about running for New York Port agent," and to go up to the microphone at the meeting and drop his charges against Lucci, Crossley and Cunningham . Touhey promised that, "if you do that, everything will go back to normal; we won't bother you any more." Guyon refused, stating that he was making "no deal " and was "sticking" to his charges. A few minutes later, but also before the meeting started, Perry called Guyon aside, stating that he wanted to talk to him in the lounge . Perry then stated, "I want you to go into that meeting and drop charges against these officials," warning that "if you don't do that I'm going to go and expose you to this crew" and "I'm going to spill the whole story on you." Guyon answered, "well, you tell your story and I'll tell mine ," adding that "we'll NATIONAL MARITIME UNION OF AMERICA let the crew decide." Guyon also informed Perry that the crew was, already aware of what had happened because they had 'sad a meeting at sea on January 26. Perry then retorted that he did not "give a damn about your meeting" !or "about you' re running for New York Port agent," stated that "I'm going to beat you now and we will beat you then," and warned that "if you don't come to reason, you'll be sorry." That ended the conversation. A few minutes later, the meeting was called to order by Shannon Wall who stated that the purpose of the meeting was to bring out in the open the story concerning Guyon's charges about being abused by three union officials in connection with an attempt to seize his union book. He then turned the mike over to Guyon who told the crew about the January 20 incident involving Lucci, Crossley and Cunningham, asked for the backing of the crew, and reminded them that these are the charges with respect to which they had held that meeting at sea. The crew applauded. Guyon then pointed out that the three men who had abused him on January 20 were not present, and he named them. William Perry then took the mike and stated that while Guyon was his friend he had to tell the crew something about him. Perry announced that Guyon had once been an NMU patrolman and had to be put in a straight jacket with the result that he wound up in a mental ward in Bellevue. He then exclaimed, "is that who you want to run the Port of New York!" and repeated this rhetorical question. At that point, various members of the crew remonstrated that this had nothing to do with the purpose for which the meeting was called. Thus, Raoul objected to hearing "any slander" against Guyon, stated that "we want to hear about these patrolmen, those officers who abused him on January 20 because if they can do it to him they can do it to us next," and pointed out that "this is the issue here." Another crew member, Sanchez, got up and said, "you have no right to call up a Kangaroo court meeting like this to slander somebody in the crew." Treuhaft, another crew member, got up and complained, "Are you going to intimidate us here? Because this is not proper, what you' re doing here . This is wrong." Port Agent Labaczewski told Treuhaft to "sit down and shut up," to "keep your mouth shut if you know what's good for you." Guyon attempted to get the mike "to tell the crew about the slander that Perry had just made against" him but was prevented from getting the mike on orders from Perry. At that point Shannon Wall got back to the mike, told the crew that "we don't want to hold you up any longer" and announced that the meeting would be continued with the ship's committee of the S. S. Santa Rosa later that day at the union hall . With that announcement, the meeting was closed. As the crew filed out to get paid off, Treuhaft was surrounded by a number of patrolmen and other NMU officials. Perry approached Treuhaft and stated, "why don't you mind your business," asked "are you tired of living? What business have you got sticking your two cents in this?" He also called Treuhaft all kinds of obscene names, and threatened that "you're going to get a broken back." After Guyon left the ship, he was called aside in front of the pier by Patrolman Cunningham, one of the men who had tried to seize his union book on January 20. Cunningham stated that Guyon should not blame him for that incident because he was only following orders, and added that he wanted to give Guyon "a good word of advice" which was to "keep away from that meeting this 619 afternoon" and "not to go near the Union hall." The meeting was continued that afternoon with the ship's committee and the NMU officials at the NMU hall. Accepting Cunningham's advice, Guyon did not attend the meeting. However, he telephoned the hall and addressed the ship's committee over an amplifying system. Guyon told the ship's committee that "I want to make my position clear here," that "I can't attend this meeting," that however "I'm not dropping any charges. I want those charges to be filed through and pursued. I want those three men punished for their behavior on January 20," naming Lucci, Crossley and Cunningham. NMU Patrolmen Vic Summers and Al Zeidel submitted an "NMU Patrolman's Report," dated February 3, 1966, and also signed by the ship's committee, which contains the following entry with respect to the incident of January 20: meeting held aboard ship with crew and National Officers present to clarify allegations made by Chief Deck Stwd. [Guyon] in reference to Officials in the Port of New York. Motioned, and seconded, and carried to adjourn and have a sub-committee study same. After a discussion by phone it was agreed that the whole thing was a misunderstanding and it was dropped. [Emphasis supplied.] As noted above, not only was Guyon never a party to such an agreement, but he affirmatively insisted that his charges continue to be processed. The next day, February 4, 1966, Guyon was at the NMU hall, soliciting endorsement signatures on his nomination forms for New York Port agent, an NMU requirement for nomination as a candidate in opposition to the administration slate.4 He arrived between 9:30 and 10 a.m. and went through the various departments, from the deck and engine department side of the union hall to the steward's department side. About 12:30 p.m. New York Patrolman Guzman Ryan walked into the hall with three men, all going towards the steward's department side of the union hall where Guyon was at that time. Ryan "fingered" Guyon to the other three men, one of whom came up and punched Guyon in the face with his fist. Guyon had with him his valise with all his nomination forms and important papers inside, and his first concern was to grab his valise and run out. However, he was grabbed by his overcoat, which was flipped over his face, and began to feel blows on his back and neck. He was still trying to run and by that time had reached the hallway, which was between the deck and engine room hiring hall and the steward's department hiring hall, when he was knocked down and kicked and punched for several minutes. Blood was coming from his ears, mouth, and scalp. A large crowd had gathered and some of them were hollering for help. Chief Master at Arms Winbusch, "a big guy about six foot three," prevented anyone from coming to Guyon's aid by pushing the crowd back with both his hands in a breast stroke-like motion. When Seaman Ralph Ibrahim tried to go to Guyon's aid, he was struck in the face by Winbusch as he was moving his hands to keep the crowd back. Someone in the crowd finally suggested, "let's call the cops." The next thing Guyon was aware of was the three men running out of the hall and the arrival of two policemen who escorted him to the patrolmen's room where the National officers also assembled. Guyon accused Patrolman Ryan of "fingering" him to the three men. Among the National officers to whom he made the accusation at that time were William 'See In. 3, supra 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Perry, assistant to NMU President Curran, Shannon Wall, secretary-treasurer, and National Representative Blocker. The policemen escorted Guyon to the emergency room of St. Vincent' s Hospital for first aid treatment. He did not have much time left, as his ship was sailing that night. However, he spent a few hours in the office of the United States attorney for the criminal division , making statements . As of the date of the instant hearing, the matter was still under grand jury investigation. The next day Winbusch met Ibrahim in the deck department of the union hall and apologized for having struck him the preceding day, explaining that it was Ibrahim's fault for having tried to come to Guyon's assistance because he (Winbusch ) was trying to prevent that. Winbusch also stated at that time "that Guyon was running for agent of the Port of New York and if they didn't stop him, he may very well win," explaining that he was only doing his job which he would lose if Guyon won. There is no denial of the foregoing incident. In view of the role played by Patrolman Ryan, an admitted agent of the Union, I find that the Union is responsible for the assault upon Guyon and for the conduct of Winbusch in connection therewith. Moreover, I find that Chief Master at Arms Winbusch was also an agent of the Union within the meaning of the Act and that the Union is also liable for his statements to Ibrahim the following day. Guyon protested the assault to President Curran. He sent him a radiogram from the S.S. Santa Rosa on February 6 as follows: SEVERELY BEATEN BY FOLR GOONS IN UNION HALL WHILE OBTAINING ENDORSEMENT SIGNATURE FINGERED BY PATROLMAN RYAN REQUEST MEETING WITH YOU BEFORE TAKING ACTION. He also sent Curran a letter from the Caribbean, dated February 10, 1966, protesting the unusual meeting held aboard ship by union officials on February 3 and the assault the following day at the union hall, and again requesting a meeting. Guyon received no reply to his radiogram and letter and was never granted the requested meeting. b. Other activities As previously noted, the NMU election was conducted between April 1 and May 31, 1966, by the Honest Ballot Association . There were 46 candidates on the ballot for 34 positions. Guyon was defeated as the candidate for New York Port agent by Joseph Labaczewski,' as was every candidate who ran in opposition to the administration slate. By letter dated June 14, 1966 , and addressed to National secretary-treasurer Wall, Guyon appealed from the results of the election in his case on the basis of all the events which had occurred to him since his announce ment to run for New York Port agent, as previously described. He pointed out that because of "all these facts, I became scared and fearful to get off the ship to conduct a proper campaign on my behalf' and that "had I not been harassed, threatened, smeared, and beaten, I would have conducted a proper campaign and probably would have tripled the above-mentioned figure and thereby won the election." His appeal was denied. The 1966 election was successfully challenged by Secretary of Labor Wirtz under Title IV of the Labor Management Reporting and Disclosure Act of 1959 (29 U.S.C. 481). The Secretary sought to have the entire election set aside and a new one conducted . In February 1967, Guyon was ship's chairman on the S .S. Santa Rosa. 'Labaczewski received 11 ,406 votes while Guyon received 4,569 votes At a meeting of the crew aboard ship, Guyon moved that a telegram be sent to the Secretary of Labor to back him in any action he might take against the NMU. The motion was unanimously passed and the following Radiogram was sent to the Secretary of Labor on February 7, 1967:6 WE THE RANK AND FILE CREW MEMBERS OF THE S.S. SANTA ROSA AT A UNION MEETING HELD FEBRUARY SIXTH VOTED UNANIMOUSLY TO SUPPORT YOUR MOVE TO HOLD NEW ELECTIONS FOR THE NATIONAL MARITIME UNION. SHIPS COMMITTEE On April 6, 1967, Guyon, as ship's chairman, and the ship's committee were processing several grievances at the NMU hall in New York City. Also present in the meeting room were Mel Barisic, NMU vice president in charge of contract enforcement, his assistant, T. J. Walker, and Charles Snow, the head of security. During the course of the meeting, NMU President Curran and his assistant, Perry, walked into the meeting room . Curran had never previously been seen at a grievance meeting . Curran said in a loud voice that he wanted the taperecorder set up because he wanted everything said by this "troublemaker," this "punk" here, Gaston Guyon, put on tape. Snow then got busy setting up the tape recording machine and the rest of the meeting was taped. Guyon testified against the NMU in the Federal District Court in September 1967 in the action brought by Secretary of Labor Wirtz. The action was successful and the elections were set aside and new ones directed in a decision issued on April 19, 1968, by District Court Judge Motley and affirmed by the Second Circuit Court of Appeals on July 29, 1968. Wirtz v. National Maritime Union, 284 F.Supp. 47 (S.D.N.Y.), affd. 399 F.2d 544; General Counsel's Exhibits 12 and 13. Guyon is mentioned by name in the decisions of both the District Court and Circuit Court of Appeals. Guyon is and has been the co-chairman of a dissident and anti-administration group known as the "Committee for NMU Democracy." In this capacity he has since the latter part of 1966 authored, researched, edited, collated, signed and disseminated - among other ways by personal distribution in front of the NMU hall and before and on various ships, in full view of many NMU officials - numerous pieces of insurgent, dissident and anti-NMU administration literature. This "Committee for NMU Democracy" was first formed in the latter part of 1966 and Guyon immediately became active therein and in distributing its literature. Thus, in March 1967 he distributed a bulletin (G.C. Exh. 33g) which on its first page in a large prominently displayed box, entitled in large bold type, "CURRAN'S ARM-TWISTING FAILS!" contains a copy of the minutes of the February meeting aboard the S.S. Santa Rosa. The minutes recite that Guyon made a motion to send a telegram to the Secretary of Labor in support of his action against the NMU for a new election and that the crew unanimously approved the motion . It also contains a copy of the radiogram which the crew sent to the Secretary, as previously set forth. In the summer of 1967, Guyon wrote and began to distribute a leaflet (G.C. Exh. 33y) signed by "Gaston Guyon, A VOICE FOR THE MEMBERSHIP" and entitled, "WAKE UP, BROTHERS! CURRAN GUILTY OF `The minutes of this meeting and a copy of the Radiogram appeared on the first page of a bulletin which Guyon openly distributed the following month. infra. NATIONAL MARITIME UNION OF AMERICA 621 DISCRIMINATION." It contains an attack against Curran, hid administration, and the Union's officials, and concludes With the following paragraph: Any member who knows of abuses of fair union practices, including backdoor shipping and fighting fund shakedown, can contact a member of the Committee for NMU Democracy, and we will take any action we can to correct these abuses. It's too bad you can't go to your officials for help but who can blame you. You can change the things in our next election by voting for NMU democracy. It is time for a change. This might be your last chance to put the NMU back in the hands of the rank-and-file. Also, beginning with January 1968 and for several months thereafter, Guyon distributed a leaflet, signed by "GASTON GUYON, CO-CHAIRMAN COMMITTEE FOR NMU DEMOCRACY," and addressed "ATTENTION. . .ALL RANK-AND-FILE MEMBERS .. ON ALL SHIPS!" The leaflet contains an attack on the large salaries received by the Union's officials, representatives, agents and patrolmen for the fiscal year 1967, with an attachment listing the salaries and reimbursed expenses of each one by name. The leaflet concludes with the following paragraph: But what every rank-and-filer will notice most of all is that hard-working and under-paid seamen are getting soaked to pay swollen salaries and "expenses" for a parasitic bunch of bureaucrats. And worse, our pensions have been placed in jeopardy by the fancy shenanigans that the fancy bureaucrats have been pulling in order to pay themselves these super-fancy salaries and even fancier "officers' pensions." Brothers, it's time for a change. 2. Guyon' s expulsion from NMU membership At a Ship's committee meeting aboard the S .S. Santa Rosa on May 17, 1967, Muriel Brady, a replacement waitress, presented written charges, dated May 15, 1967, against Guyon , alleging violations of the NMU constitution by Guyon's alleged conduct aboard ship. The charges did not include any allegation about attacking a member aboard ship or in the union hall with a dangerous weapon, or in any manner physically attacking her or causing her bodily injury. This document was not accepted by the Ship's committee. Thereafter, on June 12, 1967, Brady presented the identical charges against Guyon to a joint meeting of the Ship's committee, of which Guyon was chairman.7 The committee accepted the charges this time because of Brady's persistence . Meanwhile, on June 6, 1967, before the resubmission and acceptance of Brady's charges, a "Notice of Trial" over Port Agent Labaczewski's name was sent to Guyon at his home. This "Notice of Trial" had attached to it a "Statement of Charges" which are unsigned and otherwise do not indicate the name of the accuser , containing without more a listing of four articles of the NMU constitution allegedly violated by Guyon and notifying Guyon to report to the trial committee in the Port of New York on August 29, 1967. Among the four listed articles which Guyon was alleged to have violated is "Art. 21, Section 8. Attacking a member aboard ship or in the Union Hall with a dangerous weapon." These identical documents were again dispatched to Guyon over Labaczewski's name on June 16, 1967. In response to a request by Guyon's attorney at least for such information as the name of the accuser, the incidents complained of and when they allegedly occurred, Labaczewski sent Guyon a letter, dated August 22, 1967, which states that he is "enclosing herewith a copy of the charges filed against you by Muriel Brady. These are the same charges which you refused to accept when Miss Brady attempted to serve you aboard the vessel" (emphasis supplied), referring to the incident of May 17 mentioned above. However, the enclosed charges differ from Brady's charges which had been refused aboard ship on May 17 and had been resubmitted and accepted on June 12, 1967, primarily in that they contain an item, not included in the other charges, alleging a violation of article 21, section 2(8) of the NMU constitution as follows: Attacking a member aboard ship or in the Union Hall with a dangerous weapon. On numerous occasions, the Ship's Chairman, Gaston F. Guyon, has passed me in the Galley and come into the Dining Room, grabbing me by the hand and swinging me around, grabbing me by the neck, pushing me across the room and causing me to stumble . This type of action caused me bodily injury and jeopardized my job aboard ship. At 10:15 a.m. on August 29, 1967, a hearing on the charges was held at the NMU hall before a rank-and-file trial committee, with Port Agent Labaczewski present during virtually the entire time as the Union's representative "for the sole purpose of insuring that the trial procedure conforms to the provisions of this constitution and that the rules of fair play are enforced in all respects" in accordance with article 20, section 7, of the NMU constitution. At the opening of the hearing, the chairman of the trial committee read the charges listed in the document attached to the "Notice of Trial" sent to Guyon over Labaczewski's name, which contained the accusation of violating "Article 21, Section 8, attacked a member aboard ship or in a union hall with a dangerous weapon." Guyon pleaded not guilty to all the charges which were read. The committee then called upon Miss Brady who read the charges which she had originally submitted aboard ship on May 17 and which were resubmitted and accepted by the ship's committee on June 12, 1967. As previously noted, these charges which she read contained no accusation of attacking her aboard ship or in a union hall "with a dangerous weapon" or in any manner physically attacking her or causing her bodily injury. In response to Guyon's question as to why he had received a different set of charges from Labaczewski, also dated May 15, 1967, Brady admitted that she had submitted a different set of charges directly to Labaczewski before resubmitting the original charges to the joint meeting of the Ship's committee on June 12. After Brady had made a statement in support of the charges which she had read, Guyon then cross-examined her with respect to the second set of charges which he had received from Labaczewski. Guyon asked her if he had ever attacked her "with a dangerous weapon or laid his hands on her." She answered, "You have laid your hand on me by pointing your fingers in my eye and accusing me of leaving the deck five minutes early." Guyon then went to the next listed charge and asked Brady if he had ever violated the shipping rules or the constitution or policies of the Union. She replied, "As far as I am concerned, yes. You campaigned against the administration very poorly, you have run down many members of the administration ..." Although Brady had one witness who made a statement, nothing in her statement pertained to any 'A point meeting is comprised of the whole crew of the three departments of the ship I 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attack by Guyon or Brady with a "dangerous weapon" or laying any hand on her in any manner. Guyon then moved that the committee dismiss these charges "as they are false and not in accordance with our NMU constitution," because of the manner in which the two separate sets of charges were prepared and served . He then made a statement with respect to the substance of each charge. With respect to the allegation of a violation of article 21, section 2(8), he pointed out that "the offense described [by Miss Brady] does not allege or suggest the use of a dangerous weapon and is hence not punishable under Article 21, Section 8," and also "there, is no specification as to time, place, date, actions,, et cetera." Additional evidence presented by, Guyon related to the other charges . The hearing ended at 12:40 p.m. The trial committee went into executive session and then informed Guyon orally that he had been found guilty, with the penalty of expulsion. On September 21, 1967, National secretary-treasurer Wall mailed a copy of the trial committee's report to Guyon. This report states that Guyon was found guilty on all four charges, with the penalty of expulsion on two of them . One was for violating article 21 , section 8, which states "attacking a member aboard ship or in the union hall with dangerous weapon" and carries a mandatory penalty of expulsion, and the other was for violating article 21 , section 22, relating to violation of "National shipping rules, Constitution or policies of the Union." Under the NMU constitution, a recommendation of expulsion by a trial committee must be submitted to the membership at the next monthly meeting in port. Such a meeting was held at the union hall in New York on September 25, 1967. Present at this meeting were over 200 rank-and-file members, all New York patrolmen, New York Port Agent Labaczewski, and a number of National officers, including, Wall, Perry, all three vice presidents and all three National representatives. Labaczewski called the meeting to order and was elected chairman. Patrolman Rich read the charges which Guyon had received in the mail from Labaczewski (and not the ones which Brady had presented to the ship' s committee) and the trial committee's Report. Guyon then addressed the meeting, read the charges which Brady had filed with the ship's committee, stated that he was expelled on the latter charges, and urged the membership not to be fooled by what they had heard from Patrolman Rich. Then Labaczewski took the microphone and stated, "well, now you have heard brother Gaston's [Guyon's] comments ... I guess you know brother Gaston is the one who just testified against the Union in court a few days ago` . . .now we are going to vote on his expulsion." One rank-and-file member, Smith , got up and stated that "we want to hear from the accuser too." Brady thereupon took the microphone and stated that Guyon had "abused" her, that he was "a nasty man," that he was "a very-militant, anti-Curran individual," and that people like him "should be kicked out of the Union ." Member Smith then asked, "Miss Brady, what dangerous weapon did Gaston use against you?" She evaded the question and replied, "he's a nasty man." Smith persisted, "I'm not asking you to describe Gaston's character. We want to know what dangerous weapon he did use against you." Brady then answered, "he is the dangerous weapon. Gaston is the dangerous weapon." At that point, Labaczewski took the microphone again and said, "Now you heard . This man was abusing this woman there. Let me remind you again he testified against the Union in Federal Court. Is this what you want? Now we are going to vote." He then asked the membership to vote on Guyon's expulsion. A separate hand vote for and against expulsion was then taken on each of the two charges for which expulsion was recommended, and in each instance Labaczewski announced that the count was in favor of the "ayes." Guyon's detailed written appeal from this action was denied without reasons by the NMU appeals committee, and NMU's National council affirmed the expulsion on November 17, 1967. Guyon also brought a civil action against the NMU under Title I of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 411) on the ground that he had been expelled from membership because of his activities with the disputed 1966 election and the trial with respect thereto in the Federal District Court before Judge Motley. This action was still pending at the time of the instant hearing. 3. Refusal to permit Guyon to register Guyon had left the S.S. Santa Rosa on June 14, 1967, for medical reasons and was operated on at the Marine Hospital on July 7. He remained unfit for duty until September 26, 1967, when the doctor at the Marine Hospital marked him fit for duty. On the morning of September 29, 1967, Guyon telephoned Longchamps , Grace Lines' port steward, and requested the time of reporting for duty. As a result of this conversation, he proceeded that morning to the Union hall to register for reshipping on the S.S. Santa Rosa. At the entrance to the hall he was stopped by Tulio Figueroa, the Master at Arms then on duty. Guyon stated that he wanted "to get inside to reship on the S .S. Santa Rosa." Figueroa replied that Guyon could not come in and that he would have to wait there while he (Figueroa) got the ship dispatcher . Shortly thereafter Chief Dispatcher Lucci came outside and asked Guyon to follow him. They proceeded to Lucci's office where Lucci first asked Guyon to surrender his union book "because you have been expelled at the meeting the other day." Guyon thereupon surrendered his union book and then asked Lucci "to give me a reship for the Santa Rosa." Lucci replied, "you cannot reship on the Santa Rosa or any other ship here . . . . From this day on, you're barred from the union hall, period. You can't even come in here . You have been expelled. You're no longer a member." Guyon then asked, "Can I do like other people do, like Mr. Morrissey, for instance, register as a non-member and pay my service fee? Lucci replied, "I don't want your service fee. I don't want to register you in any category . . . . You're barred from the hall forever . . . . The only thing I'm going to give you are three forms .... One is to be filed with the secretary-treasurer of the Union, Mr. Wall, the other one with the Merchant Marine Institute ." 10 Lucci handed Guyon a triplicate form, stating that "this is an appeal from my refusal to register you for employment here in this union hall." I find that Chief Dispatcher Lucci 'This has reference to Guyon 's testimony in the Federal District Court in the proceeding brought by Secretary of Labor Wirtz against the NMU to have the 1966 elections set aside and new ones directed. See fn. 3 and section entitled "Other activities." 'Union membership is not a condition of employment under the collective-bargaining agreements and not a condition of using the services of the hiring hall. Nonmembers in Guyon 's status had the same right, and were permitted, to register upon the payment of the prescribed service fee on the same basis as members and there was no preferential treatment in shipping referral based on union membership. "The American Merchant Marine Institute, Inc., is an association of NATIONAL MARITIME UNION OF AMERICA is an agent of the Union within the meaning of the Act and that Respondent is therefore liable for his statements and conduct. Guyon took the forms, entitled "Appeal from Refusal to Register or Refer for Employment," filled them out and filed them, as requested. He stated in the form that he was refused registration on September 29, 1967, for the seamen's rating of chief deck steward [the position he last held on the S.S. Santa Rosa] because "I was no longer a member of the National Maritime Union, as I had been expelled a few days ago. Also I was told to surrender my Union book." As requested in the form, he sent one copy to the Permanent Appeals Board, NMU Employment Pool c/o American Merchant Marine Institute, Inc., and one copy to Secretary-Treasurer Wall, and retained the third copy. On September 29, 1967, Guyon also filed unfair labor practice charges against the NMU and Grace Lines, Inc., alleging a violation of the Act in refusing to register and assign him back to the S.S. Santa Rosa. By letter dated November 30, 1967, the Acting Regional Director dismissed the charges, which dismissal was sustained on appeal, on the basis that the evidence was insufficient to establish that Guyon "had applied for referral to a non-supervisory position when he visited the Union hall on September 29, 1967." The collective-bargaining agreement provides for the establishment of a Permanent Appeals Board, consisting of 3 members appointed by the Union and 3 members appointed by the American Merchant Marine Institute, Inc., the association of shipowners with whom NMU has its contracts. It further provides that any unlicensed seaman who feels that the Union has unreasonably refused to register or refer him for employment "may file a written complaint with such Appeals Board." By letter dated October 4, 1967, and signed by Kenneth Benson, secretary of the Permanent Appeals Board, Guyon was advised that his appeal had been received and that "we are investigating the matter and you will hear from us shortly." By letter dated December 4, 1967, Benson informed Guyon that the Permanent Appeals Board had met to consider his appeal and that "the National Maritime Union advised that the basis of the refusal to register you for shipping was information indicating that you were a person with vicious tendencies under Article I, Section 6(c) of the Collective Bargaining Agreement." The letter concluded with the suggestion that "you submit whatever information you may have pertaining to this charge." Immediately upon receipt of this letter, Guyon went to see Benson, informed him about the details concerning the Muriel Brady charges, gave him a transcript of the hearing on the charges before the trial committee, and answered all questions asked of him. Benson advised Guyon to "keep in touch with me" and promised to keep Guyon "posted." Guyon kept telephoning Benson weekly. He was informed that the Union was busy with the AFL-CIO convention and, on one occasion, that NMU's Attorney Sovel was not available. Finally, Benson advised that Guyon should write Benson a letter about this matter. Accordingly, on February 14, 1958, Guyon wrote Benson a letter, denying the "unspecified charge" that he was a "person with vicious tendencies" and pointing out that Muriel Brady's charges were not substantiated at the hearing before the trial committee. shipowners with whom Respondent Union, NMU, has its collective-bargaining agreements. 623 Meanwhile, on one of Guyon's telephone conversations with Benson, the latter indicated that he thought the "union was lifting the pressure." Benson further stated that "at this time I think you will be clear[ed]," and suggested that Guyon retake another attempt to register. Guyon therefore went back to the Union hall on March 11, 1968, to register for any kind of a job, to pay his service fee as a nonmember, and to ship out in any capacity. He was not permitted to register for work in any category, was barred from entering the Union hall, and was told that "nothing [had] changed" from "last year when you got expelled." The next day Guyon filed unfair labor practice charges with the Board, which charges are the basis for the instant proceeding. Meanwhile, Guyon received from Benson a letter, dated March 7, 1968, acknowledging receipt of Guyon's letter referring to the Muriel Brady charges, and adding that "the Permanent Appeals Board has been advised that in 1960 you were involved in an incident on a ship owned by the United States Lines in which a man's skull was fractured and which led to your being indicted" and that .,on at least three different occasions you became involved in disputes with Miss Christie, Personnel Director of seagoing female employees for Grace Lines, Inc., in the dining room of the S.S. Santa Rosa in which Miss Christie was threatened and foul language was used." The letter closed with a suggestion that Guyon submit whatever information he had pertaining to these matters. Guyon replied by letter, dated March 12, 1968, advising that he knew of no disputes with Miss Christie involving threats or foul language and that his limited association with her had been amicable. With respect to the 1960 incident involving Edward Mitchell, he directed attention to his complete exoneration in this incident as stated in a nolle prosequi which had been filed as to him on this indictment, gave the name of the case and the citation, pointed out that the nolle prosequi states that Mitchell, the complainant, was the instigator and aggressor, and advised that in an opinion handed down by Arbitrator Kheel on October 22, 1965, Guyon's character was established as "a peaceable, sober and industrious person." The letter concluded with the statement that "it is obvious from the last minute manner in which these matters are raised that they have nothing to do with the real dispute between NMU and myself." By letter dated April 16, 1968, Benson advised Guyon that "The Appeals Board has carefully considered your appeal, and in the light of all the facts and circumstances, denies your appeal." The parties stipulated that Guyon was refused registration and referral for shipping until September 27, 1968. In order to facilitate the holding of new NMU elections, an agreement was entered into between Secretary of Labor Wirtz and the NMU to reinstate Guyon to membership and to allow him to register and to ship pending the disposition of the instant proceeding before the Board and the other actions instituted in behalf of Guyon. The agreement was "without prejudice to the Union's position" in the pending litigation. The stipulation affecting this agreement was signed as an order by Judge Motley on August 19, 1968. C. Respondent's Defenses 1. The defense that Guyon possessed "vicious tendencies" 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel for Respondent contends that the Union refused to permit Guyon to register for employment on September 29, 1967, and on March 11, 1968, because he was a person with "vicious tendencies" under article I, section 6(c), of the collective-bargaining agreement. In support of this defense, Respondent adduced evidence with respect to certain conduct of Guyon while he was employed by the United States Lines, the American Export Lines and Grace Lines. a. The United States Lines With respect to the United States Lines, Respondent relies on two incidents; one occurred in France over a decade ago, and the other was in 1960. As to the first incident, the undisputed credited evidence shows that on June 15, 1958, Guyon was involved in a fight at La Havre, France, with a fellow seaman who was the instigator and aggressor, that during the course of the struggle each bit the other's thumb, that Guyon was fired because of this fight, and that he was reinstated through the intercession and efforts of NMU Vice President Barisic. As to the second incident, the undisputed credited evidence shows that on April 21, 1960, Guyon was involved in a fight with a fellow crewmember, Mitchell; that Mitchell was holding Guyon's arm from behind; that, when Guyon swung his body and twisted to get free, Mitchell was thrown against the bulkhead and injured; that Mitchell was taken to the hospital with a possible fractured skull; and that Guyon and Mitchell were fired as a result of this incident. The undisputed documentary evidence further shows that an indictment issued against Guyon, charging him with assault, was nolle prossed on December 24, 1963, because further investigation disclosed that "more than half of the available witnesses would testify that complainant (Mitchell), and not Guyon, started the incident" and because Mitchell was also "the instigator of a subsequent altercation" and "is a troublemaker with belligerent and aggressive characteristics." The Union again later interceded on Guyon's behalf to have him reinstated by United States Lines and successfully represented Guyon's grievance in an arbitration proceeding before Theodore Kheel, the permanent arbitrator under the collective-bargaining agreement . Guyon however never attempted to reship on the United States Lines. b. The American Export Lines Counsel for Respondent states in his brief that "after losing his job with United States Lines" in 1960, Guyon returned to the American Export Lines and "within a period of nine months he was fired on three occasions by American Export Lines, the last time for being off his station and in a female passenger room." Respondent's exhibits show that this last time was in May 1961 when Guyon had the rating of "Bellboy." Counsel for Respondent makes no mention of the nature of the prior two occasions. With respect to the earlier two occasions, Respondent's exhibits shows that one occurred in November 1960, "for engaging in gambling [a crap game ]on the vessel in direct violation of the Master's orders and of posted notices prohibiting gambling" and that he was reinstated the same day through the intercession of the Union, and that the other occurred on December 18, 1960, for being "absent from the vessel upon her departure from Genoa." No wonder Respondent's counsel did not even deign to mention in his brief the nature of these two dismissal offenses. c. The Grace Lines After leaving American Export Lines, Guyon started sailing on ships of the Grace Lines. Counsel for Respondent relies on the following incidents which occurred while Guyon was employed by these lines. (1) Brief mental breakdown in 1963 In the summer of 1963 Guyon was offered a job by the Union as an appointed patrolman. When he reported to the Union hall for this job about 2 days later, he suffered a mental breakdown, with hallucinations and paranoic symptoms, and spent a week in Bellevue Hospital in New York City. Upon his discharge from the hospital, he resumed his employment with Grace Lines, but did not return to seek his job as a patrolman. Never before nor since that time had he ever experienced such symptoms or been in such a condition. There was no showing that during that period he assaulted or injured or threatened to injure anyone or that the Union or Grace Lines made any adverse comments about this incident. On the contrary, the Union thereafter continued to register him for employment and he continued to be employed. Guyon contended that his condition resulted from having been slipped a "mickey" at the Union hall in a cup of coffee by a named Union patrolman after having refused to comply with the latter's demand that he pay $1,000 for the appointment he had just received as a patrolman," and from a blow on the head which he received from behind about the same time. It is not disputed that he reported this incident to the Justice Department, that he testified about it before a Federal grand jury, and that the matter was still under investigation by the grand jury at the time of the instant hearing. All the medical records from Bellevue Hospital were presented by United States Lines to, and considered by, Kheel in the arbitration hearing in which the Union represented Guyon in his grievance against United States Lines and which resulted in Kheel's opinion on October 22, 1965, that Guyon "be given an opportunity to apply for and obtain employment on ships of United States Lines ...." (2) The Gonzalez incident The findings concerning the Gonzalez incident are based on the credited and undenied testimony of Guyon, the only witness who testified on this matter, and on the log entries which were subpoenaed from the Grace Lines. The following is Guyon's testimony: In September 1964 Guyon was employed as second steward aboard the S.S. Santa Rosa. At that time Antonio Gonzalez was working on the Santa Rosa as the officer's utility man, a position which required him to stand in the main galley and get the food from the cook to the dumbwaiter. On the occasion in question that September, Guyon was directed by Chief Steward McGovern, the head of the steward's department, to get Gonzalez out of the galley at once because he was intoxicated and was creating a disturbance which was "The patrolman in question denied having demanded the payment of $1,000 for Guyon's appointment . I deem it unnecessary to resolve this conflict. NATIONAL MARITIME UNION OF AMERICA 625 affecting the passenger service . Guyon thereupon went to Gonzalez in the galley . Gonzalez was "very belligerent," used "alf kinds of foul language" and threatened to "get even" with Guyon. The latter reminded Gonzalez that he was "off duty" and "finished in the galley," pointed out that Gonzalez therefore had "no business" to be there, and told , him to "get up there where you belong or go below." When Gonzalez refused to move, Guyon called Assistant Steward Renrick and asked Renrick to call the chief officer. Upon hearing Guyon's request, Gonzalez slowly started to leave. To make sure that Gonzalez would leave the premises , Guyon followed him, escorting him out of the galley. As they proceeded up the spiral staircase to the sundeck, with Guyon directly behind Gonzalez who had his bands in his pocket, Gonzalez suddently turned around and swung at Guyon with a knife. Guyon thereupon grabbed Gonzalez' hands and started to squeeze them. Gonzalez dropped the knife which had cut him, and fell down the staircase . The chief officer then entered and Gonzalez was escorted down the elevator to the crew deck. At the chief officer's request, Gonzalez was handcuffed to the bunk in the ship's hospital. Log entries and official reports were made of the entire incident. The report of Assistant Steward Renrick states that he was present that evening and "witnessed the aggressive attitude of Gonzalez " toward Guyon, that "Gonzalez was loud and profane and his conduct was causing unnecessary agitation and our passenger service was being distrubed," that "Guyon ordered him (Gonzalez) to his quarters and escorted him out of the galley towards the staircase outside the galley, " and that Gonzalez drew a knife from his pocket and the second steward (Guyon) caught hold of his arm and took him away. The log entries entered by the ship' s master, the chief officer and the purser state , among other things, that Gonzalez "was abusing to his working superior, Second Steward Gaston Guyon, by using strong language and that "Gonzalez was examined by the ship 's surgeon and the diagnosis was probable marijuana intoxication , multiple abrasions of the neck and contusions of the right arm." (3) Incidents involving Miss Christie Lillian Christie is the supervisor for female personnel for Grag Lines. She testified at the instant hearing to three encounters with Guyon in which he allegedly used foul language. As to one of these encounters which occurred in the dining room sometime in 1963 , according to her further testimony, Guyon "took a swing" at her and she "ducked" and ran into the galley. On cross-examination by the General Counsel she testified that the 1963 incident was the only time when Guyon attempted to strike her and that on that occasion he "swung his fist" but did not in fact hit her . However, she admitted that in an affidavit which she signed and gave to Grace Lines' attorney on December 6, 1967, she stated with respect to this incident which occurred in January 1963, that Guyon " made a threatening gesture by raising a fist in a manner which made me believe that he was about to strike me." Despite this admission , she still insisted in her testimony at the instant hearing that Guyon "swung" at her . She also admitted that she had reported this incident to her "boss," Mr. Longchamps, and that no action was taken with respect to this incident . She further admitted that she considered her job to be a rough life because she dealt with seagoing people and that she was accustomed to being frequently cursed and abused by them. Guyon denied ever having threatened Miss Christie or having chased her out of the dining room . He admitted having had several conversations with Miss Christie in connection with grievances which he was handling as ship's chairman. With respect to the 1963 incident, he testified that several female employees had complained to him about the switching of Article numbers on the ship, a violation of the shipping rules, and he was presenting their grievance and complaints to Miss Christie about these practices in a "heated conversation" in which they both spoke loudly in the presence of other waitresses in the dining room . He denied that during the course of this argument, or on any other occasion, he swung at her, or raised his hand to her, or made any threatening gestures by raising his fist in a manner to make her believe that he was about to strike her. Helen Pepin, a housewife who used to sail as a waitress on the Santa Rosa, testified with respect to the 1963 incident that she was sitting in the dining room with a group of girls having coffee and heard Guyon and Miss Christie arguing about Miss Christie having switched people to different Article numbers. She further testified that she was looking right at them and that while they were both talking heatedly with the use of their hands, at no time during the course of the argument did Guyon swing at Miss Christie or raise his hand in a fist as if to strike her. She further testified that when the argument ended, Miss Christie went in the galley and Guyon "went in the opposite direction where we serve tea." Guyon and Pepin impressed me favorably as truthful and forthright witnesses . Pepin was a neutral witness who voluntarily came forward when she read in the newspapers about Miss Christie's testimony at the instant hearing. Miss Christie did not impress me in the same manner. In addition to the contradictions between the statements in her affidavit and her testimony, she surprisingly had absolutely no recollection of the circumstances under which she happened to give the affidavit on December 6, 1967, to Grace Lines' attorney but displayed a remarkable memory as to the details of an incident occurring early in 1963. Under all the circumstances, I do not credit Miss Christie's testimony to the extent that it is contradicted by Guyon and Pepin. I find that neither in the argument in 1963 nor on any other occasion did Guyon swing at Miss Christie, or raise his hand to her or make any threatening gesture by raising his fist in a manner to make her believe that he was about to strike her. (4) Incidents involving waitress Brady Muriel Brady, a waitress employed by Grace Lines, testified as a witness for Respondent that on one occasion about 6 p.m. Guyon came to her in the stewardess' locker, "raising holy cain" because she had "left the floor five minutes early from the promenade deck," and that when she denied the accusation, "he pushed with his finger and he pushed me against the wall " so that she had to bend over to avoid being hurt. On cross-examination, she denied that he pushed her with his finger but testified that "he took his finger and then took his hand and went after me." When asked what he did with his finger, she testified that he pushed it at my eye but that "he did not put it in my eye." She further admitted on cross-examination that she had not mentioned this incident in either of the two• sets of charges which had been submitted to the trial committee. Nor did she include this incident in the statement which she made at the hearing before the trial committee on August 29, 1967. And there is no evidence 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she mentioned it before the membership meeting on September 25, 1967. All that the record shows in this respect is that, in response to Guyon's question at the hearing before the trial committee as to whether he had ever used a dangerous weapon against her or touched her with his hands or finger, her only reply was that "you have laid your hand on me by pointing your fingers in my eye and accusing me of leaving the deck five minutes early." When Guyon repeated his question, she again replied that "you pointed your finger in my eye ... for leaving the deck supposedly five minutes early." She further testified that at an unspecified time on another occasion "he backed me up and threw me against the rail." In the set of charges which Port Agent Labaczewski had mailed to Guyon and which was also presented to the trial committee is included the following description of the allegation that Guyon had attacked her with a dangerous weapon: "On numerous occasions the ship's chairman, Gaston Guyon, has passed me in the galley and come into the dining room, grabbing me by the hand and swinging me around and grabbing me across the room and causing me to stumble. This type of action caused me bodily injury and jeopardized my job aboard ship." When the General Counsel asked Brady on cross-examination if Guyon had at any time engaged in the above-described conduct, she testified, "no bodily injury" and merely added "he swung me around." She admitted that she had not stated these things to the trial committee, and the transcript of the hearing contains no statements by her such as are in the charges and in her testimony. In addition, there is no evidence that she had mentioned this claimed incident in the September 25 membership meeting. She further admitted on cross-examination that Guyon "never used any weapon against me, nor on me. I told the membership at the September 25 meeting the same thing" (yet, one of the charges on which he was found guilty and expelled from membership was that he had attacked her with a dangerous weapon aboard ship). Brady's inconsistencies and contradictions are readily apparent from a reading of the foregoing. Moreover, if these two incidents truly occurred in the manner in which Brady testified and were of such a serious and aggravating nature as she sought to convey by her testimony, then her failure to describe them in the same manner and to the same extent at her hearing before the trial committee and at the membership meeting is so incomprehensible as to give rise to the inference that either they did not occur at all or that they were of much minor consequence and of less magnitude than her description at the instant hearing. In addition, Brady testified in a rambling, discursive, and evasive manner which did not inspire confidence in her veracity. She did not impress me as a credible witness." In evaluating the nature and extent of Guyon's actions in her description of the two incidents mentioned by Brady, it should be noted that she herself was no delicate and shrinking violet. She admittedly had been fired by Grace Lines about four or five times (each time having been reinstated through the intercession of an NMU patrolman), once when a U.S. customs inspector found ten bottles of unmanifested liquor in her room, another time for abusing superior officers, and still another time for fighting with another waitress. "Dorothy Pile, a waitress on the same ship with Brady, had filed serious charges of Nazism and anti-Semitism against Brady and on August 29, 1967, appeared at her hearing before the trial committee , prepared to press and support her charges, immediately after the hearing on Brady's charges Upon consideration of all the foregoing, I am convinced and find that Brady's description of the two incidents was grossly exaggerated and, if they did occur, that at most Guyon on the first occasion merely pointed his finger at her eye while reprimanding her for leaving the floor early and on the second occasion merely swung her around without causing her any bodily injury, under circumstances and for reasons undisclosed by the record. 2. The defense of liability of Permanent Appeals Board Almost by way of passing, counsel for Respondent briefly mentions in his brief that after April 16, 1968, when Guyon was notified by the Permanent Appeals Board that his appeal from the Union's refusal to register him for employment was denied, "it was the Permanent Appeals Board, and not the Union, who was responsible for Mr. Guyon being refused registration." As previously noted, the Permanent Appeals Board consists of three members appointed by the Union and three members appointed by the American Merchant Marine Institute, Inc., an association of shipowners with whom the Union has its contracts. It concededly holds no hearings; it merely acquires information and makes its decision. It rendered no written decisions but merely informed Guyon that his appeal was denied, without giving any reasons for the denial. Guyon had submitted to Benson, the secretary of the Permanent Appeals Board, a copy of the transcript of the proceeding before the trial committee on the charges filed by Muriel Brady. This transcript clearly shows that at most Guyon had once pointed his finger at Brady's eye while reprimanding her for leaving her station early, as previously set forth. There is nothing else in this transcript concerning Guyon's conduct which could by any stretch of the imagination even remotely have any bearing on "vicious tendencies," and Benson made no contrary claim to Guyon in regard to Brady. The only information which Benson gave to Guyon was that the Permanent Appeals Board had been "advised" of his involvement in the 1960 incident aboard a United States Lines' ship which led to his indictment and of three incidents involving Miss Christie in which he allegedly used foul language and threats. It seems very strange that, although the Union was aware of it, the Appeals Board had not also been "advised" that the 1960 indictment had been nolle prossed because further investigation showed that Complainant Mitchell was the instigator and aggressor, as previously set forth. This was however called to its attention by Guyon, as previously noted. As to the three incidents involving Miss Christie, Guyon was given no information as to what they were or when they occurred. He of course denied this unspecified blanked accusation. Counsel for Respondent stated at the instant hearing that Miss Christie's affidavit of December 6, 1967, given to Grace Lines' attorney, was before the Appeals Board. Although counsel's statement may not be regarded as evidence, an examination of this affidavit discloses three incidents; one in 1963 which I have previously treated; another in March 1967 in which Guyon allegedly "waved his finger in Miss Graham's [the dining room hostess] face"; and the third about June 1, 1967, against Guyon. Under these circumstances, Brady's testimony that at this hearing Pile confessed to the trial committee that all her charges against Brady were untrue and fabncatious is utterly incredible. NATIONAL MARITIME UNION OF AMERICA when he allegedly "used foul language in a threatening Wanner and tone." At the instant hearing, Guyon also credibly dcniedhavingengaged in theconduct mentioned inthe last two incidents. Again, it seems very strange that the Appeals Board was not also "advised" by Grace Lines that on August 16, 1967, after all the incidents recited in Miss Chnstie's' affidavit had allegedly occurred, Mr. Aguirre, the Marine Personnel Manager for Grace Lines, gave Guyon a ,reference letter which states that "while in our employ Mr. Firmin-Guyon has proven himself to be a person of high moral character and sober habits." Other than what Benson advised Guyon by letter, as above set iforth, the record does not show how the Appeals Board conducted its investigation , what facts or information were before the Appeals Board, what it considered, and the basis for its denial of his appeal. When asked by me at the instant hearing if he intended to call members of the Appeals Board as witnesses , counsel for Respondent replied in the affirmative. However, neither Benson nor any member of the Appeals Board was called as a witness, and Respondent's counsel has made no attempt to explain the failure to do so. In the - light of all the foregoing , Benson's undenied suggestion in one of his telephone conversations with Guyon prior to March 11, 1968, that Guyon should make another attempt to register because Benson thought the "union was lifting the pressure," and that Guyon would be "cleared," takes on added significance . It leads me to conclude and find, particularly in view of the sparse nature of the information which the record shows was before the Appeals Board and the failure of any of its members or its secretary to testify, that the denial of Guyon's appeal was influenced by the Union. For this reason alone, the Union may not escape liability for its continued refusal to register Guyon. In any event, the Permanent Appeals Board did not direct or order Respondent Union to refuse to register Guyon for employment. It merely denied his appeal for reasons undisclosed by the record. Thereafter, it was the Union, and not the Permanent Appeals Board, which continued to refuse to register Guyon for employment. Under all the circumstances, I find no merit to Respondent's contention. 3. The defense that Guyon was a supervisor As a last resort, Counsel for Respondent contends on the last two pages of his 42-page brief that Guyon "was, at all times herein relevant, a supervisory employee not covered by the Act" and that "on this basis alone, the complaint must be dismissed." In support of this contention, counsel relies on the fact that Guyon had occupied the supervisory position of Chief Deck Steward aboard the S.S. Santa Rosa "prior to his being refused registration for shipping," that the charge which he filed on September 29, 1967, was dismissed by the Board because there was insufficient evidence to establish that he had applied for a nonsupervisory position on that date, and that after September 27, 1968, when Guyon was informed that he would be permitted to register for shipping as a result of the stipulation signed by Judge Motley on August 19, 1968, he did not register for employment in any category but instead sought to obtain his old job directly from Grace Lines. From this, Counsel concludes that when Guyon went to the union hall on March 11, 1968, to register for employment "in any category," he "never really intended to work in any category other than that of Chief Deck Steward," a 627 supervisory position. I do not agree. I find that Guyon was in good faith seeking to register for employment in any category on March 11, 1968. Moreover, Respondent admits that until September 1968 it would have refused to register him in any category or capacity, as was also made clear to Guyon on the occasions when he had attempted to register. For Guyon to have continued to attempt to register for employment in any category during that period would have been a futile act. I reject Respondent's contention as being without merit. D. Discussion and Conclusions Counsel for Respondent contends in his brief that the General Counsel's case "collapses" because "there was no evidence as to who issued the refusal to register, under what authority it was issued, or the reasons for which it was issued." Indeed there is no evidence in the record on these matters. But, contrary to Respondent's contention, these are matters of affirmative defense on which Respondent has the burden of proof. Respondent's failure to adduce any evidence on these crucial matters, concerning which it alone had knowledge, strongly militates against the validity of its belatedly asserted defense to its admitted refusal to register Guyon on and after September 29, 1967. Nor, I find, has Respondent sustained its burden of proving its belated defense that Guyon was in fact a person which "vicious tendencies" whom it for that reason refused to register pursuant to its collective-bargaining agreement . What is the horrendous conduct which Respondent has marshalled to justify its branding of Guyon in this manner? That he had a fight in June 1958 at La Havre, France, with a fellow seaman who was the instigator and aggressor and during which each bit the other's thumb? That he had a fight in April 1960 with a fellow crewman, Mitchell, who was also the instigator and a "troublemaker with belligerent and aggressive characteristics" and during which Mitchell hit the bulkhead and injured his skull? That in January 1963 he gesticulated with his hands in the course of a heated argument with Miss Christie to whom he was presenting the grievances of several female employees? That in the summer of 1963 he had a brief mental breakdown which caused him to be hospitalized for a week in Bellevue Hospital and which Respondent knew he was contending was brought about by actions of Union officials still under Federal grand jury investigation at the time of the instant hearing? That in September 1964, acting on orders of his superior, he escorted a drunken, abusive, and obstreperous Gonzalez from the latter's duty station and during which the latter drew a knife and got cut? Are these five incidents, spread over a period of about 10 years, what Respondent relies on to mark Guyon as a person with "vicious tendencies" so as to bar him from employment in an entire industry and thereby deprive him of the only means of livelihood he has known? Or was it his conduct in violating a no-gambling notice aboard ship in November 1960, or in being absent upon the ship's departure from Genoa in December 1960, or in being off his station and in a female passenger room in May 1961? In a searching attempt to justify its position, Respondent has overreached itself by thus resurrecting ancient, trivial incidents which obviously have no bearing on "vicious tendencies" but which instead militate against the validity of its defense. Despite Grace Lines' knowledge of Guyon's one week stay in Bellevue Hospital and of the 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gonzalez incident, and despite Miss Christie' s admitted complaint to her superior about the 1963 incident, Marine Personnel Manager Aguirre of Grace Lines gave Guyon a reference letter, dated August 17, 1967 (after all the incidents recited in Miss Christie's affidavit had already allegedly occurred), and stating that "while in our employ Mr. Firmin-Guyon has proven himself to be a person of high moral character and sober habits." Moreover, Respondent never before regarded any of the previously recited conduct, either singly or collectively, as marking Guyon with being a person who possessed "vicious tendencies." Thus, not only did the Union continue to register Guyon for employment after each of the above incidents, but it also successfully interceded on his behalf to get him reinstated whenever he had been fired therefor; As late as 1965, the Union took and successfully prosecuted Guyon's grievance against United States Lines before Theodore Kheel, the permanent arbitrator under the contract. In support of its position before Kheel that it should not be required to employ Guyon, the Company not only relied on the 1960 fight with Mitchell aboard its ship but also produced the medical records from Bellevue Hospital where Guyon had spent a week in the summer of 1963 (p. 22, Resp. br., and additionally claimed that Guyon was "implicated in other disputes involving aggression" (p. 1 of Kheel' s opinion). In a decision issued in Guyon's favor on October 22, 1965, Kheel pointed out that "Mr. Guyon's record since 1960 seems to confirm that he is now a sober and industrious individual." In view of all the foregoing, what was the catalyst which suddenly transformed Guyon into a person with "vicious tendencies?" Counsel for Respondent states in his brief that this occurred "when in September of 1967 it came to the Union' s attention that Guyon had on at least two occasions physically threatened a female crew member, Muriel Brady, once by pushing her with his finger and shoving her against the wall so that she had to bend over backward to avoid being hurt and once by backing her up and throwing her against the rail." However, Respondent adduced no evidence to the effect that its initial refusal to register Guyon was for the reason that his alleged misconduct toward Brady indicated that he was a person with "vicious tendencies." Indeed , there is even no record evidence that such alleged conduct by Guyon "came to the Union' s attention" in September 1967. No such incidents were included in the charges which Brady read before the trial committee on August 29, 1967, and no statements to that effect were made by Brady or any one else either before the trial committee or the membership meeting of September 25, 1967, as previously found. Respondent knew through the attendance of its admitted officers and agents at the September 25 membership meeting that Brady at that meeting denied the charge that Guyon had attacked her with a dangerous weapon, a false charge on which he was nevertheless expelled. It is significant that not even the Permanent Appeals Committee later mentioned such incidents in the correspondence which its secretary had with Guyon. The record shows that the first time that Brady made such accusations was on November 8, 1968, when she testified at the instant hearing and admitted she received no bodily injury, as previously found . Thus, the Union could not have become aware of Brady's accusations in September 1967. Moreover, I have found that Brady is not a credible witness and that Guyon did not in fact engage in the exaggerated conduct described by Brady in her direct examination . In any event, even assuming Respondent's contention that it learned in September 1967 that Guyon had engaged in the conduct to which Brady testified, I find that this did not suddenly convert him into a person with "vicious tendencies," or indicate that he was such a person, or even cause Respondent to entertain a good-faith belief to that effect. What then was the reason for Respondent 's abrupt transformation from that of Guyon's supporter and protagonist prior to 1966 to that of his antagonist after 1966? The combination to unlock the answer to this question becomes apparent from a consideration of the following conduct and incidents previously detailed and found: 1. Before September 12, 1967 (a) When on the S.S. Santa Rosa in the Port of New York on January 7, 1966, Labaczewski, Acting Port agent for the Port of New York, realized that Guyon was serious about his then announced intention to become a candidate for the office of Port agent for the Port of New York in the forthcoming NMU election, Labaczewski abused and cursed Guyon with obscene names and warned that "we have ways of dealing with you" and that Guyon was "just inviting trouble." (b) One of the "ways of dealing" with Guyon for his audacity in seeking to run for New York Port agent against Labaczewski, the administration's candidate, manifested itself almost immediately when, upon the ship's return to the first American port, Labaczewski instigated an attempted logging action against Guyon on the false charge that it was Guyon who had cursed Labaczewski aboard the S .S. Santa Rosa on January 7. (c) When Guyon immediately telephoned and complained to William Perry, assistant to NMU President Curran, about Labaczewski's instigation of a false logging against him, explaining that it was Labaczewski who had done the abusing and cursing just because Guyon had declared his intention to run for Port agent, Perry condoned and supported Labaczewski's actions by announcing that he was "going to back the port agent on this," accused Guyon of being "a wise guy," asked how Guyon would "like somebody running for your job," and warned that "I'll fix you." (d) Among "ways of dealing" with Guyon was the abuse and harassment to which he was subjected, on Labaczewski's orders, when the ship arrived in the Port of New York on January 20, 1966, by three union officials in connection with an attempt to seize his union book, including threats that "if we don't get the book you're not going to leave the ship in one piece." (e) When Guyon confronted Labaczewski that same day and demanded an explanation for his conduct in sending three men down to abuse him, Labaczewski lamely explained that the incident was "a misunderstanding" because "someone told me your dues weren't paid up." Before the conversation ended, Labaczewski asked if Guyon was "serious" and was "really going to run against me," and warned that "you know you can't beat the slate anyway." (f) When the S.S. Santa Rosa returned from its next voyage to the port of New York on February 3, 1966, the Union convened an unprecedented meeting in the main passenger dining room, with the entire crew and virtually all of Respondent's officials present, ostensibly to take up the issue about Guyon being abused by the three Union officials who attempted to seize his union book on January 20. Shortly before the meeting began, NMU Patrolman Touhey privately cautioned Guyon "for your NATIONAL MARITIME UNION OF AMERICA 629 own good" to "forget about running for New York Port agent" and to drop his charges against the three Union officials ; who had attempted to get his union book on January 20, promising that "if you do that, everything will go back to normal" and "we won't bother you anymore." A few minutes later, William Perry also privately counseled Guyon to drop his charges against those officials, threatening that "if you don't do that I'm going to expose you to this crew." When Guyon refused, as he had also refused Touhey's request, Perry threatened, "if you don't come to reason, you'll be sorry." (g) Instead of addressing himself to the issue for which the meeting ostensibly was called, Perry used the meeting solely as a forum to abuse, denigrate, and propagandize against Guyon, pointing out that he had been in a mental ward in Bellevue Hospital and twice exclaiming, "is that who you want to run the port of New York!" (h) When the crew objected to the Union official's "slander" against Guyon instead of taking up the issue for which the meeting was ostensibly called, the Union abruptly announced that the meeting would be continued later that day before the ship's committee at the union hall where the matter was whitewashed by the issuance of an "NMU Patrolman's Report," dated February 3, 1966, and containing an entry (in reference to the attempt to seize Guyon's book on January 20) which falsely stated that the matter was dropped because Guyon had "agreed that the whole thing was a misunderstanding." (i) When the type of harassment above set forth failed to dissuade Guyon from his intention to become a candidate for New York Port agent, the Union immediately made good on its additional threats and warnings by resorting to what it must have regarded as a more effective form of persuasion to "stop him." Thus, at the union hall the very next day, February 4, while Guyon was soliciting endorsement signatures on his nomination forms for New York Port agent, he was severely and brutally assaulted by three men whom Patrolman Ryan had escorted to the scene and to whom he had "fingered" Guyon, with Chief Master of Arms Winbusch preventing anyone from coming to Guyon's aid by pushing the crowd away with breast stroke-like motions. (j) NMU President Curran's resentment against Guyon's continued attack upon him and his administration after the 1966 elections and Guyon's support for a new election, all of which appeared in the leaflets which Guyon wrote and openly distributed in the presence of union officials, is demonstrated by Curran's unprecedented conduct on April 6, 1967, in barging into a meeting at the union hall where Guyon was processing certain grievances as Ship's Committee chairman and in a loud voice accusing Guyon of being a "troublemaker," calling him a "punk," and ordering everything he said to be recorded on tape. As Guyon's charge in this proceeding was filed on March 12, 1968, 1 am precluded by Section 10(b) of the Act from finding as an unfair labor practice anything prior to September 12, 1967. However, such events may be and have been considered by me for the light they may shed to illuminate and explain Respondent's motivation and conduct in the events which occurred thereafter." 2. After September 12, 1967 (a) A few days before September 25, 1967, Guyon testified in Federal court against the NMU in the suit brought by Secretary of Labor Wirtz to have the 1966 elections set aside and new ones ordered . A Union membership meeting, attended by many admitted high ranking officers and agents of the Union, was held on September 25, 1967, for the purpose of voting on the trial committee's recommendations that Guyon be expelled from the Union. New York Port Agent Labaczewski, who chaired the meeting, attempted to influence the vote in favor of Guyon's expulsion by stating at one point, just before calling for a vote, that "I guess you know brother Gaston (Guyon) is the one who just testified against the Union in court a few days ago" and at another point that "Let me remind you again he testified against the Union in Federal court. Is that what you want? Now we are going to vote." As Brady openly admitted at this meeting that Guyon had not attacked her with a dangerous weapon, a false charge on which the membership nevertheless voted for his expulsion, it is reasonable to infer, as I do, that by his reminders above set forth Labaczewski successfully influenced the membership vote for Guyon's expulsion at least on that false charge. (b) Four days later, on September 29, the Union, by Chief Dispatcher Lucci, refused to permit Guyon to register for reshipping on the S.S. Santa Rosa because he had been expelled and was no longer a Union member despite the fact that the Union was also required to register nonmembers upon the payment of the required service fee which Guyon at that time offered to pay. (c) Respondent's unexplained failure to adduce any testimony concerning the circumstance and manner in which the decision was suddenly reached and implemented to refuse to register Guyon if, as Respondent contends, the basis therefore was not his nonmembership, matters which were peculiarly and solely within its own knowledge, "weighs heavily in favor of the General Counsel's case." J. C. Penney Co., Inc., 172 NLRB No. 134. Indeed, under these circumstances, the inference is warranted that such testimony would have been adverse to Respondent's case.14 (d) Not until December 4, 1967, more than 2 months later, was Guyon advised, indirectly through Benson, the secretary of the Permanent Appeals Board, of the shift in the Union's reason for refusing to register him, then claiming that it was because of "information indicating" that he "was a person with vicious tendencies under Article I, Section 6(c) of the collective-bargaining agreement." (e) Benson advised Guyon in one of their telephone conversations prior to March 11, 1968, that Guyon should make another attempt to register because Benson thought the "union was lifting the pressure" and that "this time I think you will be clear[ed]." (f) However, the Union did not lift the pressure, and Guyon was not cleared. When Guyon went back to the union hall on March 11, 1968, to register for any kind of job in any category and to pay the required service fee as a nonmember, he was not permitted to do so or even to enter the union hall and was told that nothing had changed from September 1967, when he was expelled from the Union. (g) Thereafter, the Union influenced the Permanent Appeals Board to deny Guyon's appeal. On April 16, 1968, Guyon was merely informed by Benson that his "N.L R B. v. Bryan Manufacturing Co, 362 US 411; Keller Aluminum Chairs Southern , Inc, 173 NLRB No. 139. "Interstate Circuit, Inc v. US 306 U.S. 208, 226; Gibbs Die Casting Aluminum Corp., 174 NLRB No 15, TXD, sec 11, c, 2 and cases cited therem. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appeal was denied, without giving any reasons or basis for the Appeals Board's decision. The foregoing events and conduct, considered in the light of what had occurred prior to September 12, 1967, as previously detailed, convince me, and I find, that Respondent NMU refused to permit Gaston Firmin-Guyon to register for employment as an unlicensed seaman solely because of his previously detailed intraunion activities while a member of the NMU and his activities in opposition to the incumbent administration and officials of the NMU. I further find that by such conduct on and after March 11, 1968, Respondent violated Section 8(b)(1)(A) and 8(b)(2) of the Act. It violated Section 8(b)(1)(A) because Respondent thereby restrained and coerced Guyon in the exercise of his rights guaranteed by Section 7 of the Act. It violated Section 8(b)(2) because Respondent thereby caused and attempted to cause steamship companies with which it had collective-bargaining agreements to discriminate against Guyon in violation of Section 8(a)(3) of the Act. Conclusions of Law 1. Gaston Firmin-Guyon was not a person who possessed "vicious tendencies" and Respondent's refusal to permit him to register was not based on any good-faith belief to that effect. 2. Respondent refused to permit Guyon to register for employment as an unlicensed seaman solely because of his intraunion activities while a member of the NMU and his activities in opposition to the incumbent administration and officials of the NMU. 3. By such conduct on and after March 11, 1968, Respondent restrained and coerced employee Guyon in the exercise of his rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act 4. By such conduct on and after March 11, 1968, Respondent also caused and attempted to cause steamship companies with which it had collective-bargaining agreements to discriminate against an employee in violation of Section 8(a)(3) of the Act and thereby engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. IV. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and that it take certain affirmative action which will effectuate the policies of the Act. Having found that Respondent violated Sections 8(b)(1) (A) and 8(b)(2) of the Act by refusing to permit Guyon to register for employment for the above-stated unlawful reasons, I will recommend that Respondent be ordered promptly to register Guyon, when requested to do so, for employment as an unlicensed seaman in whatever capacity he may be qualified, to notify Guyon in writing to that effect, to notify in writing all steamship companies with which it has collective-bargaining agreements that notwithstanding any prior agreement or understanding it now has no objection to Guyon being employed by any of them as an unlicensed seaman in whatever capacity he may be qualified and that it will promptly register him for such employment upon his request, and to publish in conspicuous places in three consecutive issues of "The pilot," the official organ of the NMU, a copy of the attached notice marked "Appendix"." I shall further recommend that Respondent make Guyon whole for any loss of earnings he may have suffered by reason of Respondent's discrimination against him. Said losses shall be computed on a quarterly basis in a manner consistent with the policy established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest thereon computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings and conclusions and the entire record, pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Respondent National Maritime Union of America, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to permit Gaston Firmin-Guyon, or any other unlicensed seaman, to register for employment foi which they are qualified, when requested to do so, because of their intra-union activities or activities in opposition to the officials and administration of NMU. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act including the rights of members to run for union office and to oppose administration policies and officers, or causing or attempting to cause steamship companies with which it has collective-bargaining contracts to discriminate against employees in violation of Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Promptly register Gaston Firmin-Guyon for employment for which he is qualified as an unlicensed seaman, when requested by him to do so, and so notify him in writing. (b) Make whole Gaston Firmin-Guyon for any loss of earnings he may have suffered as a result of Respondent's discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Send written notices to all steamship companies with which it has collective-bargaining agreements, stating that notwithstanding any prior agreement or understanding it now has no objection to Guyon being employed by any of them as an unlicensed seaman in whatever capacity he may be qualified and that it will promptly register him for such employment upon his request. (d) Post at its union hall and meeting places in New York, New York, as well as all places where notices to its members and to employees are customarily posted, and publish in conspicuous places of "The Pilot," copies of the attached notice marked "Appendix."" Copies of said notice, on forms to be provided by the Regional Director for Region 2, shall, after being duly signed by an official of Respondent, be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, and shall be published in "The Pilot" immediately upon receipt thereof and be maintained in conspicuous places therein for three consecutive issues. Reasonable steps shall be taken by the Respondent to "American Federation of Musicians of the United States and Canada, AFL-CIO, 165 NLRB No 110 (TXD) "In the event that this Recommended Order is adopted by the Board, NATIONAL MARITIME UNION OF AMERICA 631 insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 2, in writing,' within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply therewith.17 the wordi "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX so notify him in writing. WE WILL make up to Gaston Firmin-Guyon the earnings he may have lost because of the discrimination against him and pay him 6 percent interest. WE WILL send written notices to all steamship companies with which we have contracts and tell them that we have no objection to Guyon being employed by them as an unlicensed seaman in any job for which he is qualified and WE WILL also tell them that we will promptly register Guyon for such employment upon his request. WE WILL NOT restrain or coerce you intheexerciseof rights guaranteed by the National Labor Relations Act, including the rights of members to run for union office and to oppose administration policies and officers. WE WILL publish in "The Pilot" a copy of this notice in conspicuous places in three consecutive issues. NOTICE TO AL1. MFMBERS OF NATIONAL MARITIME UNION OI AMERICA, AFL-CIO AND TO ALL UNLICENSED SEAMEN Pursuant to The Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL. NOT refuse to permit Gaston Firmin -Guyon, or any other unlicensed seaman, to register for employment for which they are qualified, when requested to do so , because of their intra-union activities or activities in opposition to the officials and administration of NMU. WE WILL promptly register Gaston Firmin-Guyon for employment for which he is qualified as an unlicensed seaman , when requested by him to do so, and WE WILL NATIONAL MARITIME UNION OF AMERICA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) 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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Federal Office Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0340.