Seafarers International Union

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seafarers International Union of North America, At- lantic, Gulf, Lakes & Inland Waters District, AFL- CIO (Isthmian Lines, Inc.) and James Moyles. Case 23-CB-1222 September 25, 1975 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On April 29, 1975, Administrative Law Judge Lo- well Goerlich issued the attached backpay decision in this proceeding.' Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel submitted a brief in support of the Adminis- trative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Seafarers International Union of North America, Atlantic, Gulf, Lakes & Inland Waters District, AFL-CIO, Houston, Texas, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. 1 See orginial decision at 202 NLRB 657 (1973). 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION IN BACKPAY PROCEEDING HISTORY OF PROCEEDINGS LOWELL GOERLICH, Administrative Law Judge: On March 23, 1973, the Board issued its Decision and Order I direct- '202 NLRB 657 (1973). ing the Respondent (among other things) to take affirma- tive action to "make James Moyles whole for loss of earn- ings suffered as a result of the discrimination against him in the manner set forth in the section above entitled 'The Remedy.", 2 Thereafter on July 29, 1974, the Court of Ap- peals for the Fifth Circuit enforced the foregoing backpay order. On December 3, 1974, a backpay specification and notice was issued alleging that a controversy had arisen over the backpay due under the terms of the above-men- tioned Order. The matter came on for hearing at Houston , Texas, on February 18, 1975. Each party was afforded a full opportu- nity to be heard, to call, to examine and cross -examine witnesses, to argue orally on the record, to submit pro- posed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. FINDING OF FACT,3 CONCLUSIONS, AND REASONS THEREFOR Moyles, a merchant seaman, became permanently unfit for sea duty in 1968 for health reasons. Thereafter in Feb- ruary 1970 Moyles was pronounced fit for duty and was issued a "B" 4 registration card at Respondent 's Houston, Texas, hiring hall. Thereafter, discriminatorily, Moyles was denied a "B" rating and was issued a "C" registration card. Until this event occurred in July 1971, Moyles had shipped from February 10, 1970, until July 24, 1971, and had earned $14,237.39. On January 12, 1972, Moyles was issued a "B" registration card. In 202 NLRB 657, Administrative Law Judge Ohlbaum found that during the period of his discrimination Moyles "regularly" appeared at the Respondent's Houston hiring hall seeking employment.5 A class "C" seaman, as Moyles was discriminatorily classified, could be selected for jobs "only after eight (8) job calls go unanswered by Class 'A' and Class 'B' men." Job calls were made on the hour start- ing at 9 o'clock, at which time registration cards were "thrown in." The seaman with the oldest registration card in the appropriate class was selected for the job. New regis- trations were required every 90 days. During the backpay period, chances for any "C" rated men to be assigned were minuscule .6 2 In this regard the remedy required the Respondent to "take certain affirmative action, including making whole James Moyles for a loss of earn- ings 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." 3 All facts found herein are based on the record as a whole and the obser- vation of the witnesses. 4 "A seaman becomes qualified for a 'B' rating when he has shipped for 90 days in each of two consecutive years. A 'C' rating is given to those seamen without seniority . All seamen seeking referral from Respondent'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." Board's findings, 202 NLRB 657. 5 In order to obtain a job, the person bidding for the job must be physi- cally present at the hiring hall and must personally "throw in" his card 6 The document offered by the Respondent which reflected the referral of seamen, both able-bodies and ordinary, from the Houston hiring hall during 220 NLRB No. 105 SEAFARERS INTERNATIONAL UNION Moyles testified that he "laid around the hall quite a bit," and as found by Administrative Law Judge Ohlbaum he regularly appeared at the hall. In this regard there is no credible proof that he did not follow the usual pattern of seamen seeking employment out of the hiring hall. More- over, the sparsity of "C" assignments rendered almost fu- tile a seaman's appearance at the hall for a "C" job assign- ment. Moyles did what was the custom of other seamen in respect to his appearance at the hall, and he cannot be faulted because he did not measure up to the arbitrary standard for "job search" tailored for Moyles in the pro- ceeding by the Respondent but not in accord with the hab- its of its seaman members 7 When the Respondent chose to discriminate against Moyles it did so with knowledge of the work search habits of its members and it ought not now be heard to complain that Moyles' habits bar him from back- pay since it is clear that he fulfilled his job search responsi- bilities as any seaman normally would . If Moyles were held to have not made a reasonable search for employment, we would be turning our backs on the realities of the seafaring world. Indeed, to penalize Moyles at the behest of the Re- spondent for acting as a seaman would manifest a patent incongruity. The peculiar work habits of seamen and the fact that seamen may not all fit into the same mold even though certain of their characteristics are the same were consid- ered by the General Counsel when he proposed his back- pay specification . The General Counsel's formula was composed by finding the monthly average earnings of the backpay period revealed that, of some 168 referrals, 9 were regular "C" classifications, while 3 were in the student "C" classifications. All the rest were "B" men. The student "C" classification had an advantage over the regular "C" men in that they could get a job after only two calls while the regular "C" men had to wait through eight calls before they were eligible for a job. Of the 12 "C" classification referred, all but 3 were referred to ordi- nary seamen's jobs while Moyles was a "green ticket" able-bodied seaman, which carries a higher rate of pay and more privileges. Thus, had Moyles appeared every day at the Hall and reported for a job every hour his chances of obtaining a "C" assignment would have been highly speculative and no doubt unfruitful . Moyles' duty to mitigate damages did not require him to do such a vain thing. 7 Counsel for Respondent developed that "some of the problems .. . raised in this particular backpay proceeding are caused . . . by the casual nature of the industry" and that "one of the problems is that men from day to day wake up on the right side or the wrong side of the bed and decide either they want to go to sea, away from their wives, or they want to stay home with their family." 699 Moyles while employed between February 1970 and July 1971, the period from the time Moyles returned to sea duty and the date of the discrimination. The monthly average was then multiplied by the number of months during the backpay period. This formula, according to Van B. Jones, the compliance officer, was adopted as fair and reasonable since it would be unfair "to use the earnings of other men or other seamen because it would appear that in this indus- try the seaman works as much or as little as he chooses to work"; thus a formula "would be superior based upon [Moyles] experience and what he actually worked." Jones added a further reason indicating that he discovered that the overtime entries for the "B" employees who had re- ceived assignments during the backpay period were errone- ous and that their backpay could not be accurately com- puted. It is found that the General Counsel's proposed formula, for the reasons stated, is fair and reasonable when weighed in the light of the peculiarities of the seafaring world. Nor may it be found that Moyles willingly incurred any losses. Accordingly, it is found that the backpay due Moyles from the Respondent is the sum of $4,599, plus interest as set out in the specification.' Moyles' interim earnings were zero. Upon the basis of the foregoing findings of fact and con- clusions of law, and the entire record before me, and pur- suant to Section 10(c) of the Act, it is recommended that the Board issue the following: ORDERS Respondent, Seafarers International Union of North America, Atlantic, Gulf, Lakes & Inland Waters District, AFL-CIO, Houston, Texas, its officers, agents, and repre- sentatives, shall make James Raymond Moyles whole by payment to him of $4,599, together with interest at the rate of 6 percent per annum, until he is paid in full as required by the Board's Order. 8 The General Counsel amended the specification by alleging: " Subsis- tence for 100 days at $2 per day-$200.00"; however, no evidence was offered to support this claim; thus the claim is denied. 9 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.