Seafarers International Union

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