American Commercial Lines, Inc

1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD American Commercial Lines, Inc and its subsidiar ies American Commercial Barge Line Compa ny, American Barge Line, Inc, Southern Ohio Towing Company, Inc, Northern Towing Corn pany, Inland Tugs Co River Division and Canal Division, Mac Towing, Inc and Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL- CIO American Commercial Lines, Inc and its subsidiar ies American Barge Line, Inc, Inland Tugs Co River Division and Canal Division, and Mac Towing, Inc and Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters Dis trict, AFL-CIO and American Commercial Barge Line Company, Inland Tugs Co River Division and Canal Division, American Barge Line, Inc, Southern Ohio Towing Company, Inc, Northern Towing Company and American Commercial Barge Line Company, Inland Tugs Co River Division and Canal Division Cases 9- CA-14657 9-CA- 14867 9-CA-15511 9-CA- 15923 9-CA-16016 9-CA-16040 9-CA- 16225 9-CA-16277 9-CA-16321 9-CA- 16373 9-CA-16495 9-CA-16648 9-CA- 16255 9-CB-4584 and 9-CB-4707 December 15 1988 DECISION AND ORDER „ BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT1 On March 31 1983 Administrative Law Judge Thomas D Johnston issued the attached decision The Charging Party/Respondent Union (Seafarers SIU and the Charging Party/Respondent Employ er (American Commercial Lines Inc and its sub sidianes) and the General Counsel filed exceptions and briefs The same parties thereafter filed an swering briefs 2 Our delegation is to a panel of Chairman Stephens and Members Jo hansen and Cracraft Member Johansen did not participate in the decision on the merits 2 The Seafarers filed a motion to strike portions of the Employers ex ceptions to the judge s decision on the grounds that various exceptions failed to comport with the form required in Sec 102 46(b) and 0) of the Board s Rules and Regulations The Employer moved to strike the Sea farers exceptions in their entirety for failure to comply with the same sections of the Board s Rules and Regulations We have carefully exam fined the parties exceptions and find the motions to strike to be without merit Although some exceptions may not conform in all particulars with the cited sections of he Board s Rules and Regulations they are not so deficient as to warrant striking Accordingly both the Seafarers and the Employers motions to strike are denied The Employer by motion and memorandum filed July 18 1983 re quested that the Board reopen the record to receive into evidence an at bitration remedy award that issued arter the judge s decision in these cases The arbitration award addresses various aspects of the hiring hall activities alleged to be unlawful here The Seafarers filed a response in The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings 3 and conclusions only to the extent consistent with this Decision and Order The facts set forth in full in the judge s decision will be recited here as needed The Companies in volved in this case constitute a towing and barging operation on inland waterways from Minneapolis to New Orleans and from Pittsburgh to Houston The boat crews range from about 5 to 12 individ uals classified as captains pilots steersmen engi neers cooks head deckhands and deckhands The essels operated by Respondent American Com mercial Lines and its subsidiaries are used to build guide and push tows or groupings of one or more cargo carrying barges wired together as a unit American Commercial Lines Inc (ACL) is a holding company consisting of two functionally di verse divisions the Inland Waterways Services Di vision and the Trucking Service Division All the companies involved here are wholly owned sub sidiaries of ACL within the Inland Waterways Services Division ACL provides these subsidiaries with certain administrative and financial services American Commercial Barge Line Company (ACBL) the lead company in the barging group advertises solicits and contracts with customers for barging services Rather than operate any equipment or towboats of its own ACBL hires other companies to provide the barging services Some of these companies are its affiliates Ameri can Barge Line Inc (ABL) Southern Ohio Towing Company Inc (SOT) Inland Tugs Co opposition to the motion and the Employer replied to that response We have carefully considered the motion and the related submissions and for reasons set forth fully in part E of this Decision and Order have found merit in the Employers request Accordingly the Employers motion to reopen the record is granted and the arbitration remedy award and relat ed documents are received into evidence On November 27 1985 the Employer filed a motion to receive or take administrative notice of a court order judgment and memorandum entry issued September 23 1985 and a second order judgment and memoran dum entry issued November 20 1985 by the United States District Court for the Southern District of Indiana confirming the arbitration award re ferred to above and ruling on motions relating to arbitrator and attorney fees The Seafarers filed a response in opposition to the motion Inasmuch as the arbitration award addressed in the court s orders is pertinent to issues resolved in this Decision and Order the Employers motion is granted 2 A number of exceptions were taken to the judge s credibility findings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 291 NLRB No 143 AMERICAN COMMERCIAL LINES (ITC) and Mac Towing Inc (MAC) ACBL pro vides its affiliates with labor relations industrial re lations and administrative services and employs their captains steersmen pilots port engineers crew and barge dispatchers ITC is divided into two operating divisions the River Division and the Canal Division The Canal Division engages in harboring operations and barge movements in the area south of Baton Rouge Lou isiana and the River Division engages in towing operations north of Baton Rouge On April 1 1980 ABL and SOT were merged into ITC River Divi lion and ceased their corporate existences 4 In August 19795 ACL purchased all the stock and boat equipment of MAC a company not previ ously affiliated with ACL or its subsidiaries The Seafarers have never had a collective bargaining agreement with MAC 6 ACBL or ACL With re spect to the other companies the Seafarers has had a collective bargaining relationship that dates back to the early 1960s The most recent collective bar gaining agreements with ITC ABL and SOT ex pired on December 30 7 The parties relationship can fairly be described as harmonious until mid 1979 The complaints allege that at various times thereafter mainly in late summer and fall of 1979 and following the commencement of negotiations for a new contract in October 1979 the Companies engaged in numerous unfair labor practices includ ing discriminating against employees interfering with the Union s access to unit employees and with its status as the employees bargaining representa tive bypassing the Union s hiring hall bargaining " Northern Towing Company Inc (NTC) which is no longer an oper ating entity merged into SOT in mid 1979 All allegations that NTC vio lated Sec 8(a)(1) (2) (3) and (5) of the Act were dismissed and no ex ceptions were filed s All dates are 1979 unless otherwise indicated 6 At the time it was purchased by ACL MAC was a party to a collec tive bargaining agreement with the Inland Rivermen s Association of the United States (IRA) effective by its terms from November 1 1978 to October 31 1981 In Mac Towing 262 NLRB 1331 (1982) the Board de termined that MAC was not an accretion to any unit represented by the Seafarers but was a separate appropriate unit for purposes of collective bargaining Based on the Board s decision in Mac Towing the judge dis missed allegations that MAC violated Sec 8(a)(1) (2) and (5) of the Act by administering its contract with IRA and rejecting any bargaining obh gation with the Seafarers We find no merit in the Seafarers exceptions to the dismissals ' ITC Canal Division historically has had a single contract covering all of its unit employees ITC River Division SOT and ABL on the other hand have entered into separate collective bargaining agreements for their licensed engineering department employees and unlicensed deck de partment employees Based on the Board s Mac Towing decision supra the above described corporate mergers and the unit compositions in the latest contracts the judge found three units of ITC employees to be ap propnate We see no merit in the parties exceptions to these unit find rags However we correct the judge s statement that at all times maters all herein the Seafarers has been the exclusive representative of the em ployees in the three appropriate units As explained above prior to the mergers of April 1 1980 ABL SOT and ITC River Division each had separate contracts with the Seafarers for separate units of licensed and unlicensed employees This clarification does not affect the remaining issues in this case 1067 in bad faith and unilaterally changing and repudi ating certain terms and conditions of employment The judge found that Respondents ABL SOT and ITC which were admitted to be single and/or joint employers of their respective employees and ACBL (collectively as Respondents Respondent Companies and Companies) 8 engaged in a number of violations of Section 8(a)(1) of the Act These included preventing union representatives from talking with employees, engaging in surveillance of employees union meetings making unlawful prom ises and threats intimidating and interrogating em ployees and maintaining a discriminatory nonrefer ral for employment list The judge further found that the Respondent Companies violated Section 8(a)(3) and (1) of the Act by discharging and refus ing to recall 10 employees He also concluded that the Respondent Companies violated Section 8(a)(5) and (1) of the Act by repudiating the access and hiring hall provisions in their collective bargaining agreements with the Seafarers unilaterally institut ing a pension plan for unit employees refusing to make contributions to a number of contractually es tablished trust funds failing to bargain in good faith with the Seafarers and delaying in furnishing or refusing to furnish the Seafarers with requested information The judge found that Respondent MAC violated Section 8(a)(1) of the 'Oct by making several unlawful statements to its employ ees and violated Section 8(a)(3) and (1) of the Act by discharging three employees Finally the judge found that Respondent Seafarers violated Section 8(b)(3) of the Act by refusing to furnish the Re spondent Companies with requested information We have found merit in a number of the parties exceptions to the findings and conclusions of the judge Consequently for reasons fully stated below we reverse several of the judge s findings that the Respondent Companies and MAC violated Section 8(a)(1) of the Act including the finding that the Companies maintained a discriminatory nonreferral for employment list We have revised the remedy regarding employee Robertson and have modified the rationale used by the judge in finding that the Respondent Companies violated Section 8(a)(5) of the Act by repudiating the hiring hall provisions of their collective bargaining agree ments Further we reverse the judge s conclusions that the Respondent Companies violated Section 8(a)(5) of the Act by failing to bargain in good faith with the Union refusing to make contribu 9 We find no merit in the Seafarers exceptions to the judge s dismissal of all allegations that American Commercial Lines Inc (ACL) violated Sec 8(a)(1) (2) (3) and (5) of the Act Therefore the collective terms referring to the Respondent Companies do not include ACL unless spe cifically indicated 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tions to vanous trust funds and unilaterally insti tuting a new pension plan In addition we reverse the judge and find the Respondent Companies un lawfully failed to furnish the Union with crew lists We also reverse the judge s findings that Respond ent Union violated Section 8(b)(3) of the Act by refusing to furnish the Companies with requested information Finally we have clarified or revised vanous rationales used by the judge in reaching his conclusions A Alleged Unlawful Statements Interrogations Threats Intimidations and Surveillance We adopt the judge s findings that the Respond ent Companies violated Section 8(a)(1) of the Act by informing union representatives in the presence of employees that they could not talk to crew members and by moving the vessel so the repre sentatives could not converse with the employees threatening employees with discharge for not ac cepting the Companies contract proposals mtimi dating employees by throwing the union contract in the trash while commenting that that was what the Companies thought of the employees and the Union threatening employees with enforcing break periods because they attempted to maintain certain contractual provisions interrogating employees concerning what occurred at a union meeting in forming employees that without the Union they would receive as extra compensation the money paid by the Companies to the joint union/management training school and engaging in surveillance of a union meeting for crew mem bers Further we adopt the judge s findings that Respondent MAC violated Section 8(a)(1) of the Act by informing an employee he was being put off a boat because he was a member of the SIU and by informing employees that other employees had been discharged because they were SIU mem bers Finally we adopt the judge s dismissal of ad ditional allegations that the Respondent Companies and MAC violated Section 8(a)(1) of the Act by engaging in surveillance of the employees union actvities and by making unlawful statements to em ployees Based on the exceptions of the Respondent Com panes and MAC we reverse the j udge s finding that MAC unlawfully solicited employees to arm themselves with weapons because of possible trou ble with the Union Regarding the MAC vessel Carneal in late September he and steersman Ernie Dodson got off the boat in Cairo Illinois While there he and Dodson were approached by two in dividuals who identified themselves as SIU repre sentatives and asked why the Seafarers was not al lowed to board the Carneal Dodson responded that the employees on that boat were not members of that union An argument ensued during which Dodson told the representatives that all the SIU did was take employees money without helping them As the argument continued one of the repre sentatives told Dodson he would knock his teeth out No actual physical contact occurred but after the employees returned to the Carneal there was much discussion among the crewmembers re garding the incident Captain Gordon Jackson testa fled that he overheard Dodson tell some employees that a couple of SIU people had cornered him in Cairo and threatened to knock his teeth down his throat According to the credited testimony of employee Thomas Presley Jackson told the em ployees that while the boat was in the Cairo harbor the men should stick together because there might be trouble Presley later approached Jack son and asked him if there was going to be trouble in Cairo Jackson replied that the employees should stick together stay in twos and keep with them a cheater bar or toothpick (steel pipes used to build tows) Jackson commented that the SIU was jealous because the MAC crew was getting more pay and it did not cost them as much to get into their union We reverse the judges finding that Jackson s comments violated the Act Jackson was aware of a heated dispute between several members of his crew and individuals claiming to be SIU represent atives The captain also was aware that during this encounter threats were made and physical contact barely was avoided The entire incident had become common knowledge among everyone on the vessel and most of the allegedly unlawful com ments were made by Jackson in response to ques tions by Presley We conclude that Jackson s advice to his crew to stick together while in the Cairo area represented an attempt to protect his employees from potential violence We find that advice of a noncoercive nature such as that of fered by Jackson is not unlawful 9 B Discrimination Against Employees in Their Employment We find no merit in the Respondents exceptions to the judge s findings that the Respondent Compa vies violated Section 8(a)(3) and (1) of the Act by 9 See e g Golay & Co 156 NLRB 1252 1271-1272 (1966) The issue here is not whether we endorse Jackson s advice or condone its sub stance such as the possible use of cheater bars but whether the advice reasonably tended to coerce the employees who received it It is in this posture that we make this finding AMERICAN COMMERCIAL LINES discharging Mark Glies 10 and Gary Wilkins 11 and by refusing to recall Donald Meritt Jr 12 and Robert Pruitt 13 We therefore adopt those findings We further adopt in the absence of exceptions the judge s finding that Respondent MAC violated Section 8(a)(3) and (1) of the Act by discharging Johnny Hallmark In addition we find no merit in the Respondents exceptions to the judge s findings that Respondent MAC discriminatorily discharged Edward Pittman and Richard Hitchcock We also adopt the judge s findings that the Respondents did not violate the Act by terminating Dale Young Robert Wells Tom Neal Joe Fackler Gary Welch and Daniel Alexander by refusing to recall or rehire William Allen or by refusing to hire Warren Henry Bruce Miller and Dale Wilkert No exceptions were taken to these findings Be cause we find no merit in the exceptions of the General Counsel and the Union we further adopt the judge s dismissal of the allegations that the Re spondents unlawfully terminated Robert Ambers Richard Gantley Terry Reynolds Ronnie Thoma son John Wheeler Jr 14 and Phillip Macklin 10 We do not construe the Respondents exceptions as requesting defer ral to a private settlement agreement concerning Glies Rather we inter pret the exceptions as contesting only the judge s recommended remedy that the Respondents offer Giles reinstatement or make him whole for any loss of earnings when as argued by the Respondents such actions have already been taken The amended remedy and Order in this Deci sion and Order as in the judge s state that the Respondents are to offer reinstatement to Glies (and to several other employees) if they have not already done so Such language allows for the possibility that necessary remedial requirements may have been fulfilled before the issuance of the Board s Order The determination whether such has been done and whether amounts allegedly received by certain employees pursuant to private settlement' agreements must be offset against the Respondents total backpay obligation are most appropriately resolved in the compli ante stage of these proceedings 11 We find that the General Counsel has shown by a preponderance of the evidence that Wilkins was discriminatorily terminated In so ruling we note that the Respondents made no attempt to present affirmative evi dente through their own witnesses to contradict Wilkins testimony and to establish that there may have been a legitimate basis for Wilkins ter urination Further we see no merit in the Respondents argument that Wilkins voluntarily resigned from his job 12 A grievance was filed regarding the Respondents refusal to recall Mentt An arbitration award which was not offered into evidence issued in late August 1980 pursuant to which Meritt was offered immediate rein statement and full seniority Although the Respondents urged the judge to defer to the arbitration award the judge declined to do so The Re spondents filed no exceptions to that ruling We therefore do not pass on the Judges discussion of Spielberg Mfg Co 112 NLRB 1080 (1955) 13 Deferral requests were made at various stages of these proceedings regarding the unfair labor practice allegations concerning Robert Pruitt Donald Mentt Jr William Allen Robert Ambers Terry Reynolds Ronnie Thomason and John Wheeler Jr However as no party has re newed these requests in their exceptions deferral is inappropriate Cf MacDonald Engineering Co 202 NLRB 748 (1973) Manville Forest Prod ucts Corp 269 NLRB 390 fn 3 (1984) 14 We agree with the judge that these employees engaged in an unpro tected work stoppage in violation of the contract s no strike clause As indicated by the judge Ambers Gantley Reynolds Thomason and Wheeler had alternative methods available to inform the Union of the Respondents October 31 notice regarding changes in vessel access proce dures All the alleged discnmmatees except Thomason who did not testi fy acknowledged that at the time they left the vessel they were aware of the grievance and arbitration provisions of the contracts In fact the 1069 We find no merit in the Respondents position that the judge erroneously failed to apply the dot trine of Collyer Insulated Wire 192 NLRB 837 (1971) in concluding that the Companies violated Section 8(a)(3) and (1) of the Act by discharging employees Paul Cook Timothy Priode David Robertson Garon Sneed Roy Stinson and Antho ny Velar We recognize that the Board in United Technologies Corp 268 NLRB 557 (1984) over ruled General American Transportation Corp 228 NLRB 808 (1977) and returned to the deferral policy established in Collyer In doing so the Board stated that it would defer to arbitration those com plaints alleging violations of Section 8(a)(1) (3) or (5) of the Act when the underlying issues are cog nizable under the grievance arbitration provisions of the parties collective bargaining agreement Nonetheless when as here an allegation for which deferral is sought is inextricably related to other complaint allegations that are either inappropriate for deferral or for which deferral is not sought a party s request for deferral must be denied The discharges here at issue are an integral part of the Respondents overall pattern of unfair labor prac tices and are so closely intertwined with the other complaint allegations involved in this case that we find deferral would result in disorderly proceedings and confusion We note specifically the intricate re lationship between the discharges and the allega tion that Captain Hamm unlawfully intimidated employees by throwing their collective bargaining agreement in the trash and further the allegation that the employees in question were terminated for engaging in protected concerted activities a charge dismissed by the judge 15 Accordingly we con elude that deferral of one aspect of the parties dis pute to the grievance arbitration machinery would under these circumstances be inappropriate Sheet Metal Workers Local 17 (George Koch Sons) 199 NLRB 166 (1972) see also S Q I Roofing 271 NLRB 1 fn 3 (1984) Addressing the merits of the allegation we agree with the judge s findings and recommended remedy and Order except as they relate to employ ee Robertson Although the termination of Robert son served as the catalyst for the subsequent pro tected activities of the other crewmembers we find that the General Counsel failed to prove that Rob ertson s initial termination was unlawful Although we have reason to overturn the judge s discrediting Union filed a grievance regarding the October 31 notice that was proc essed to arbitration The notice and the arbitration regarding it are dis cussed below at part D is No exceptions were filed regarding the Judges dismissal of the alle gation that the employees at issue were discharged in violation of Sec 8(a)(i) of the Act 1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the Respondents proffered reasons for announc tug that Robertson would be terminated when his relief arrived we find no evidence that prior to the announcement Robertson said or did anything that set him apart from his fellow crewmembers as far as union activities or sympathies are concerned Thus we find no evidence that Captain Hamm fired Robertson because he engaged in protected or union activities We do find however that Robert son s separation date was accelerated when the Re spondents unlawfully terminated Robertson s fellow crewmembers As a result although Robert son initially was not scheduled to leave the vessel until his relief arrived he was prematurely forced to disembark on October 7 in Sebree Kentucky We shall revise the remedy and Order to require that the Respondents make Robertson whole for losses incurred as a result of the discriminatory ac celeration of his termination C Nonreferral List of Employees The judge found that the Respondents violated Section 8(a)(1) of the Act by advising the Union about October 16 that they intended to maintain a nonreferral list of employees they would not accept for future employment and by maintaining on this list the names of employees who filed personal injury lawsuits and claims against the Respondents or other employers under the Jones Act 46 U S C § 688 for injuries received during the course of their employment 16 Citing the Board s decision in Krispy Kreme Doughnut Corp 245 NLRB 1053 (1979) enf denied 635 F 2d 304 (4th Cir 1980) the judge reasoned that the employees involved en gaged in protected concerted activity because the relief sought was a benefit arising out of their em ployment relationship and was of common interest to other employees The judge noted that the Board in Krispy Kreme overruled its prior decision in Hunt Tool Co 192 NLRB 145 (1971) which held that it was not unlawful to discharge an em ployee because he filed a purely personal claim under the Jones Act or the Longshoremen s and Harbor Workers Compensation Act 33 US C § 901 seeking damages for alleged on the job inju ries as that activity was not protected by Section 7 of the Act The Respondents except to the judge s conclusions and inter alia urge that the Board return to the analysis articulated in Hunt Tool We find merit in the Respondents exceptions 16 During the hearing the judge dismissed an allegation that the Re spondents unlawfully refused to hire the 71 employees at issue here No exceptions were filed to this dismissal or to the judge s further dismissal of an allegation that Sec 8 (a)(3) of the Act was violated in that employ ees names were placed on the nonreferral list because of their union ac tivities After the judge s decision in this case issued the Board held in Meyers Industries 17 that to find an employees activity to be concerted the activity must have been engaged in with or on the author ity of other employees and not solely by and on behalf of the employee himself In so doing the Board overruled the precedent on which the judge relied here Consistent with the decision in Meyers and as urged by the Respondents we return to the principles embodied in the Board s decision in Hunt Tool The judge found and we agree that there is no evidence that any of the employees on the nonre ferral list had any knowledge of its existence More importantly there is no evidence that any of these employees acted other than alone and in their own interests in pursuing individual statutory claims under the Jones Act Further there is no evidence that any individual intended to enlist the support of other employees in a common endeavor Thus the evidence does not support a finding that any of the employees engaged in concerted activity as defined in M e y e r s I s Accordingly we shall dismiss the ap plicable complaint allegations 19 D Interference with Access to the Respondents Vessels The collective bargaining agreements in article V section 4 provided as follows The Company agrees to allow duly author ized Union representatives access to the prop erty and vessels of the Company for the pur pose of contacting the employees 7 Meyers 1 268 NLRB 493 497 (1984) remanded sub nom Pri!l v NLRB 755 F 2d 941 (D C Cir 1985) cert denied 474 U S 948 (1985) Meyers fI 281 NLRB 882 (1986) enfd sub nom Prill Y NLRB 835 F 2d 1481 (D C Cir 1987) cert denied 108 S Ct 1109 (1988) 18 Accord Briley Marine 269 NLRB 697 (1984) 19 In light of our conclusion we deem it unnecessary to pass on adds tional contentions and issues raised by the parties with respect to the judge s findings regarding the nonreferral list On February 17 1984 the General Counsel moved that the Board grant an appropriate period of time during which the General Counsel and the Union can ascertain whether as required by Meyers evidence exists that would indicate that the filing of Jones Act claims in the instant case was concerted in nature The General Counsel further requested that should the investigation disclose such evidence the Board reopen the record to receive the testimony The Seafarers filed a response in sup port of the motion The Respondents opposed the motion arguing that the issue was thoroughly litigated and the General Counsel was allowed sufficient time during the trial to review any and all the Respondents records relating to the filing of Jones Act claims In addition the General Counsel was provided with the names and last known addresses of all individuals on the nonreferral list The Respondents further contend that the General Counsel is not relying on any newly discovered evidence but rather is on a fishing expedition On March 8 1984 the Board denied the General Counsels motion We note that there is no indication or representation in the motion that the desired investigation would lead to the discovery of relevant evidence AMERICAN COMMERCIAL LINES Said duly designated Union representative shall be required to show a Union identifica tion card upon request Representatives of the Union shall be al lowed to contact the employees at any time but men at work shall not be interfered with unless said men are properly relieved the relief getting no extra compensation Pursuant to the above contractual provisions SIU patrolmen visited the Respondents vessels for such purposes as to consult with crewmembers about their work discuss grievances or contractual disputes keep records of crew composition pro vide employees with union forms sign up new members and observe sanitary conditions 20 About February and thereafter, SIU patrolmen also vis ited the Respondents vessels to solicit or maintain support for the Union The Respondents, by tele gram and letter dated October 31 notified the Union that the visiting privileges of all union agents aboard its vessels were revoked effective immediately The documents stated that We rec ognize your contractual right to visit our vessels for purposes of contract administration and en forcement However [v]essel visitation will be limited to collective bargaining agreement prob lems 21 Contrary to prior procedures, the Respondents also indicated that SIU agents were to be accompanied on board its vessels by company officials higher in rank than captains A grievance filed by the Union regarding the Respondents October 31 letter was processed to arbitration An arbitration award dated December 2, 1980, found that the contracts access provisions were precise and unambiguous and that they placed no limitation on either the number of visits by union agents to the vessels or on the subject matter of discussion between the Union and em ployees during the visits 22 The arbitrator further concluded that the Respondents violated the con tractual access provisions by revoking the Union s visiting privileges limiting the purpose of the 20 The judge found and we agree that the General Counsel failed to establish that the Union possessed the right to conduct formal safety in spections while on board the Respondents vessels Consequently the judge dismissed those portions of the complaints alleging that the Re spondents unlawfully refused to allow the Union to conduct such inspec pons We find no merit in the Union s exceptions to the judge s rulings and therefore we adopt the recommended dismissals 21 The judge rejected the Respondents arguments that they were pnv ileged in restricting the reasons for access by SIU agents on the theory that other unions might demand access rights as a result of the filing of various representation petitions We find no merit in the Respondents ex ceptions to the judge s conclusions We note that in Sheeran Y American Commercial Lines 683 F 2d 970 977 (6th Cir 1982) the Sixth Circuit Court of Appeals likewise rejected the Respondents argument in the course of enforcing a 10(j) injunction issued against the Respondents 22 The award also stated that the same or similar contract provisions had been included in the parties collective bargaining agreements since 1938 1071 Union s visits to contract administration and en forcement and adding the condition that manage ment representatives accompany the union patrol men By letter dated July 31 1980 the Respondents notified the Union that meetings between SIU agents and employees were to be confined to the crew s lounges forward deck lockers heads of the boats or galley areas The judge found and we agree that prior to this time union agents were not restricted as a matter of company policy regarding where they could conduct their meetings The judge found that the Respondents violated Section 8(a)(5) and (1) of the Act by denying access to all of their vessels from December 31 (the day after the contracts expired) to about August 4 1980 and by interfering with or prohibiting union patrolmen from boarding their vessels on 8 occa sions and restricting the patrolmen to certain areas aboard the vessels on 17 occasions23 between No vember 1 and April 9 1981 (excluding the period of complete denial of access referred to above) 24 The judge reasoned that because the parties con tracts contained clear and unambiguous access pro visions which placed no restrictions on either where union agents could meet with employees or what they could discuss restrictions imposed by the Respondents were contrary to the Union s con tractual rights The judge dismissed approximately 12 additional allegations of denial or interference with access finding insufficient evidence to support the allegations We have carefully reviewed and find without merit the numerous exceptions filed by the Union and the Companies with respect to the judge s findings and agree with the judge that the Respondents violated the Act as alleged 25 In reaching his conclusions the judge implicitly found that existing Board law supports the conclu sion that contractual access provisions survive the 23 All the instances in which SIU agents were restricted to specified areas on board the vessels occurred after the Respondents forwarded to the Union their letter of July 31 1980 24 In their exceptions the Respondents assert that the judge erred in failing to find that the issue of denial or interference with access was a contractual matter which was properly the subject of the parties griev ance arbitration procedure and not an unfair labor practice and that the issue is properly one to be processed through the parties grievance arbi tration procedure and not before the Board To the extent the Re spondents are requesting deferral to the arbitration award discussed above we agree with the judge that deferral is inappropriate as the award based solely on the Respondents October 31 letter interpreted the meaning of contractual access provisions but did not make particular ized findings of fact regarding the specific violations alleged here 25 As noted by the Respondents several of the judges findings that the Companies unlawfully restricted the loca ion of union meetings in volve occasions that precede the date alleged in the pleadings We find that the violations of August 7 and Septembei 6 and 14 1980 occurred shortly before the complaints date of since about 16 September 1980 are covered by the pleadings and are part of a pattern of unlawful restric tions found here 1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD expiration of a collective bargaining agreement Al though we agree with the judge that the alleged postcontract expiration denials of access were un lawful we note the existence of a circuit court ruling on this issue in a related injunction proceed ing As background the Regional Director for Region 9 sought a preliminary injunction pursuant to Section 100) of the Act shortly after the initial complaints and notices of hearing issued against the Respondents On July 25 1980 an order was en tered by the District Court for the Western Dis tact of Kentucky enjoining the Respondents from engaging in certain activities which included refus ing to permit duly designated union agents to board the Respondents vessels 26 and refusing to use the union hiring halls as the exclusive source of new hires into contractually established bargaining units (see part E below) The Respondents filed a notice of appeal from the order granting the pre limmary injunction and on July 12 1982 the Court of Appeals for the Sixth Circuit in Sheeran v American Commercial Lines 683 F 2d 970 (6th Cir 1982) affirmed the order of the district court 27 During the injunction proceedings the Respond ents argued that when the collective bargaining agreements expired on December 30 they had no further obligation to comply with the access and hiring hall provisions of the contracts Regarding the access issue the court of appeals agreed with the district court that the right [to access] con tained in the collective bargaining agreement con tinued to be a term of employment after the collec tive bargaining agreement had expired 28 Conse quently the court of appeals held that the district court was not clearly erroneous in finding that there was reasonable cause to believe that the Re spondents committed unfair labor practices by de nying the Union access to their vessels on occa sions both before and after the expiration of the contracts 29 Although we note the court of appeals ruling we do not rely on it to find the violations alleged here The Board has long held that a union s access 6 It appears as argued by the Union that the Companies responded to the order granting injunctive relief by issuing their July 31 1980 letter restricting the areas aboard the vessels where union agents were allowed to conduct their meetings 27 Although the order was affirmed in full as it applied to the Re spondent Companies the court of appeals found that the record did not support the issuance of the injunction as to ACL and that the hiring hall and access portions of the injunction were inapplicable to MAC The court remanded the case to the district court for consideration of various motions pending before it that are not relevant to our findings here On July 23 1986 the district court dissolved the injunction 28 Id at 977 e The court of appeals made similar findings regarding the hiring hall aspect of the 10(1) injunction proceeding This matter is discussed fully in part E of this Decision and Order to represented employees on an employers prem ises is a mandatory subject of bargaining and that an employer s unilateral modification of contractual access provisions violates Section 8(a)(5) of the Act See Campo Slacks Inc 250 NLRB 420 429 (1980) enfd mem 659 F 2d 1067 (3d Cir 1981) Boyer Bros Inc 217 NLRB 342 344 (1975) Gran ite City Steel Co 167 NLRB 310 (1967) Further in Houston Coca Cola Bottling Co 265 NLRB 766 777 (1982) enfd as modified 740 F 2d 398 (5th Cir 1984) the Board adopted a judge s decision finding that contractual access provisions survived the ex piration of the parties collective bargaining agree ment See also Bay Area Sealers 251 NLRB 89 (1980) enfd as modified 665 F 2d 970 (9th Cir 1982) Thus we rely on existing Board law in adopting the judge s conclusions that the Respond ents violated the Act as alleged 30 E Repudiation of the Hiring Hall Provisions Article I section 2 of the contracts provided in relevant part [T]he Company agrees to secure all of its personnel through the hiring hall of the Union If for any reason the Union does not furnish the Company with capable competent and physically fit persons when and where they are required to fill such vacancies in ample time to prevent any delay in the scheduled de parture of any vessel the Company may obtain employees from any available source 31 The hiring hall provisions which applied to both licensed and unlicensed employees contained in ar title I section 6 a seniority classification system whereby registrants were referred from the hiring hall according to a set of rules known as the Shipping Rules These rules attached to the con tracts as appendices were promulgated and admin istered by the Seafarers Appeals Board (SAB) a joint labor/management entity consisting of four members On August 27 the Board in Seafarers (American Barge Lines) 244 NLRB 641 (1979) found the hiring hall procedures for unlicensed em ployees violative of Section 8(b)(1)(A) and (2) of the Act In particular the Board found that the 30 Finally we note that although more is involved here than a court of appeals ruling on an analogous legal issue involving different parties we cannot rely on the court of appeals ruling in the 10(1) proceedings In such proceedings the court s assessment of the legal theories is made only for the purpose of assuring that they are not frivolous or insubstan tial Bove v Teamsters Local 79 (Pilot Freight) 479 F 2d 778 792 (5th Cir 1973) See also Hendrix v Operating Engineers Local 571 592 F 2d 437 442-443 (8th Cir 1979) (citing Bove v Teamsters supra with approval in a 10(l) injunction case) a' The full text of this portion of the hiring hall provisions appears in the first paragraph of sec III G of the judge s decision AMERICAN COMMERCIAL LINES 1073 procedures pursuant to the shipping rules caused signatory employers to discriminate unlawfully with respect to new hires and to illegally prefer union members over nonmembers On August 31 as a result of the Board s decision the Respondents ceased using the Seafarers hiring halls In early October the SAB amended the shipping rules to delete the unlawful provisions and on October 10 the Respondents received a copy of the amend ments 3 2 The Respondents refusal to resume using the hiring hall after receipt of the amendments became the subject of a grievance filed by the Union on October 25 The grievance was processed to arbi tration following which an award was entered on December 2 1980 The arbitration board found that the SAB had exclusive authority to amend the shipping rules that the amendments to the unli censed shipping rules became effective on October 26 and that the Respondent Companies violated the collective bargaining agreements by refusing to use the hiring halls after that date 33 The award did not order a remedy because the parties stipulat ed that that matter be left to their joint resolution However the arbitration board with the consent of the parties retained jurisdiction to fashion a remedy if the parties were unable to reach agree ment The judge found that since about October 31 the Respondents violated Section 8(a)(5) and (1) of the Act by repudiating the hiring hall provisions con tained in the parties collective bargaining agree ments In so finding the judge concluded that the Respondents are required to secure all unit employ ees through the hiring halls and are not allowed to hire individuals directly unless the employees are regularly employed aboard a vessel without breaks in their current seniority (current employees) or the Union is unable to furnish the Respondents with employees in sufficient time to prevent a delay in vessel movement The Respondents filed exceptions to these findings and to the judge s con clusion that deferral to the parties grievance arbi tration procedure was inappropriate because the ar bitration award of December 2 1980 did not con tarn a remedy The Union excepted inter alia to the judge s recommended remedy and Order We agree with the judge that the Respondents violated the Act by repudiating the hiring hall provisions of 32 With the exception of five jobs filled in October 1979 the Respond ents ignored the Union s request that they resume using the hiring hall From October through December some 200 to 300 jobs per month were filled without resort to the hiring hall On expiration of the contracts on December 30 the Respondents treated their hiring hall obligations as ex tinguished 33 The arbitration award also sustained a grievance filed by the Union regarding the Respondents repudiation of contractual access provisions This aspect of the case is discussed in part D above their contracts 34 However as set forth below we find that there are further situations in addition to those found by the judge when the hiring hall need not be used and under which the Respond ents bypass of the hiring hall is not a violation As stated above in footnote 1 the Respondents by motion filed July 18 1983 have requested that the Board reopen the record pursuant to Sections 102 47 and 102 48 of the Board s Rules and Regula tions to receive into evidence an arbitration remedy award dated June 29 1983 This award resulted from hearings held in October and Decem ber 1982 and February 1983 following the parties inability to agree on a remedy as stipulated in the underlying arbitration award 35 The Seafarers argues inter alia that the Respondents motion should be denied because the arbitration remedy hearings were conducted after the unfair labor practice hearings and the arbitration remedy award was issued after the judge s decision In support of this argument the Union cites Max Factor & Co 239 NLRB 804 (1978) enfd 640 F 2d 197 (9th Cir 1980) cert denied 451 U S 983 (1981) and Timpte Inc 233 NLRB 1218 fn 2 (1977) enf denied 590 F 2d 871 (10th Cir 1979) We agree with the Re spondents that these cases are distinguishable from the instant one in that both the arbitration hearings and resulting awards in Max Factor and Timpte oc curred entirely after the unfair labor practice hear rags and the issuance of the judges decisions in those cases In this case by comparison the ongi nal arbitration award issued prior to the com mencement of the unfair labor practice hearings and the remedy hearings were conducted prior to the issuance of the judge s decision Further the parties mutually agreed in the instant case to bifur cate the processing of their hiring hall dispute into a hearing on the merits and a separate hearing on the remedy As a result the remedy hearings were but a continuation of and part of the original un derlying grievance proceeding In any event the Board has on previous occasions found it appropri ate to reopen records to receive into evidence arbi 3" We do not agree with the Respondents that the judge erred in con cluding that the savings clause (art V sec 3(c) of the contracts) did not afford the Respondents the right to require negotiations regarding re placement language for the provisions found unlawful in Seafarers supra By its terms that clause provided for arbitration only when the parties could not agree on substitute language for invalidated provisions Here after the seniority provisions were declared unlawful by the Board the SAB pursuant to authority granted by shipping rules 7 and 9 amended them to comply with the Board s decision Thus for purposes of art V sec 3(c) a substitute provision was agreed to and there was no need for arbitration 33 Documents filed by the Respondents in response to the Union s op- position to their motion indicate that the delay in resuming the arbitration hearings and issuing the supplemental remedy award resulted from post ponements requested by the parties due to time constraints regarding matters pending before the Board 1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tration awards issued after the close of unfair labor practice hearings 36 Accordingly the Respondents motion is granted and the arbitration board s remedy award of June 29 1983 and related sub missions are received into evidence The arbitration remedy hearings were conducted to determine the appropriate remedy for the Re spondents failure to use the Unions hiring halls when obtaining 59 new hires between October 26 and December 30 In ordering a remedy the arbi tration panel with one of three members dissent ing interpreted the hiring hall provisions of the contract here under consideration and specifically found that the parties historically had recognized exceptions under which the Respondents were free to hire unlicensed employees without first contact ing the union hiring halls i e when the hiring halls were closed on Saturday afternoons Sun days and holidays and in various emergency situa tions including when a vessel would have to sail short handed because of an employees inadequate notice of disembarkment or when a failure by the hiring halls to fill a vacancy could delay the depar ture of a vessel In addressing the Union s argument that. the remedy must also apply to 44 old employees (i e those with broken seniority)37 who were not hired through the hiring halls the arbitration panel found that the record did not support the Union s position Rather under well established past prac tices dating back to at least 1975 former or old employees were rehired directly by the Respond ents crew dispatchers without referral from the hiring halls The panel further found that although the Union was well aware of these practices it failed to file a grievance or complaint in protest of it 38 The panel concluded that the parties custom ary practices were to be applied in determining an individual s entitlement Regarding the Union s argument that the remedy apply to certain licensed personnel namely chief engineers and assistant engineers the arbitration board noted both that the only collective bargain ing agreement entered into the arbitration record was the one covering unlicensed unit employees 36 See e g McLean Trucking Co 202 NLRB 710 (1973) reversed on other grounds sub nom Banyard v NLRB 505 F 2d 342 (D C Cir 1974) Kansas City Star Co 236 NLRB 866 (1978) 37 The record shows that a break in seniority occurs when employees are discharged quit and leave a vessel short handed fail to show up for an assignment without notifying the appropriate company representative or have not worked for more than 6 months 38 According to the Respondents uncontroverted evidence in 1978 and 1979 approximately 450 former employees were rehired-about 85 percent of these individuals were hired by crew dispatchers whereas only about 15 percent were shipped out of the hiring halls In addition since at least 1977 the Respondents provided the Union on a monthly and often weekly basis with records indicating the identity of employees hired during the covered period along with the source of their hire and that the initial grievance and award did not in clude licensed personnel The board therefore con cluded that licensed personnel were not within the group of aggrieved individuals encompassed by their award Rather the award applied only to 59 unlicensed hiring hall registrants who were other wise entitled to have been shipped between Octo ber 26 and December 30 39 The Respondents have requested that the Board defer to the above arbitration proceedings and awards 40 It is well settled that the Board will defer to an arbitration award when the proceedings appear to have been fair and regular all parties agreed to be bound the decision of the arbitrator is not clearly repugnant to the purposes and policies of the Act Spielberg Mfg Co 112 NLRB 1080 1082 (1955) and the arbitrator adequately consid ered the unfair labor practice Olin Corp 268 NLRB 573 574 ( 1984) 41 Applying the above standards to the facts of this case we find that de ferral is inappropriate because as explained below the remedial portion of the award is arbitrarily lim ited and therefore not susceptible to an interpreta tion consistent with the Act In addition the award does not even address statutory violations occur ring after the expiration of the contract that we are called on to remedy Accordingly we cannot defer to the award because its remedy under the terms of Spielberg supra and Olin supra is clearly re pugnant to the Act As we further explain howev er this defect in the remedy does not preclude us from relying on the arbitrators interpretation of the parties contractual agreement regarding hiring hall procedures and practices As noted above the grievances before the arbi tration board solely involved instances of hiring hall bypass that occurred during the term of the collective bargaining agreement The arbitration 39 Having reviewed the Board s decision in Seafarers supra the provi sions of the Unlicensed Shipping Rules the arbitration awards address ing the rules and the exhibits admitted into this record pursuant to the Respondent Companies motion to reopen the record to receive the arbi tration remedy award and related documents we find that the arbitrators conclusions apply to all unlicensed personnel of ITC River and Canal Di visions (having taken into account the corporate mergers mentioned else where in this Decision and Order) In so doing we note that all employ ers with unlicensed personnel signatory to collective bargaining agree ments with the Seafarers District involved in these proceedings were subject to the unlicensed shipping rules which were addressed in the above Board and arbitration decisions We note also that the case cap tions in both arbitration award documents refer to the River and Canal Divisions of ITC 40 The General Counsel did not file exceptions regarding the judges treatment of the deferral issue or take a position about the Respondents request that the Board admit the remedy award into evidence and defer to its findings 41 The Board in Ohn Corp clarified standards established in Raytheon Co 140 NLRB 883 (1963) set aside on other grounds 326 F 2d 471 (1st Cir 1964) Chairman Stephens notes that he was not present when the Board decided Olin Corp and he takes no position regarding the merits of that decision AMERICAN COMMERCIAL LINES 1075 board in fashioning a remedy viewed its authority as limited to the term of the agreement that it was construing Consequently the award ordered pay ment of backpay to persons who would have been hired through the parties hiring halls absent the Respondents repudiation of the contractual ar rangement, only from October 26 through Decem ber 30, the date the contract expired In other words, concerning those individuals found by the arbitration board to have been wrongfully denied hire between October 26 and December 30 the ar bitration board awarded backpay (including fringe benefit contributions) only for the term of the con tract expiring December 30 and provided no relief for losses extending beyond that date That the arbitration award cannot be reconciled with Board law becomes evident when comparing the remedy provided by the arbitration board to an individual unlawfully denied hire on December 29 with the Board remedy for an individual unlawful ly denied hire on January 1 1980 The individual encompassed by the arbitration award would be entitled to only 2 days backpay, whereas the Inds vidual covered by the Board Order would receive backpay for all resulting losses in wages, without a specific deadline This disparity of remedy is not based on the actions or characteristics of the hiring hall applicants Rather as explained above the dis panty results from the arbitration board s percep tion of limitations on its authority to remedy the particular grievances before it Our remedial authority and the violations before us however, do not stop at the contracts end The Board seeks to provide remedies that effectuate the policies of the Act and wherever possible restore the status quo that would have obtained but for the wrongful act NLRB v J H Rutter Rex Mfg Co 396 U S 258, 265 (1969) Extending the reme dial period beyond the contract expiration date is all the more essential here because the statutory violations run beyond that date The Board has held that hiring hall provisions are mandatory subjects of bargaining that survive a contracts expiration Southwestern Steel & Supply 276 NLRB 1569 fn 1 (1985), enfd 806 F 2d 1111 (D C Cir 1986) NLRB v Southwest Security Equipment Corp 736 F 2d 1332 (9th Cir 1984) cert denied 105 S Ct 1854 (1985) 42 Thus, on con tract expiration hiring hall procedures become ex isting practices that an employer may not under 42 As with the access provisions of the collective bargaining agree menu the Sixth Circuit Court of Appeals in ruling on the 10 (1) injunc tine matter discussed above in part D found that the hiring hall provi sions survived the expiration of the contract Sheeran v American Corn mercial Lines supra 683 F 2d at 977 Section 8(a)(5) of the Act change unilaterally 43 It certainly follows that it can be no less a violation of the Act for an employer to persist in unilateral changes that have been unlawfully implemented during the contract term Furthermore an employ er violates the Act even if it then enters into bar gaining on that subject so long as it has failed in the interim to reinstate the conditions it has unlaw fully discontinued NLRB v Allied Products Corp 548 F 2d 644 652 (6th Cir 1977) If, therefore we affirm the judge s finding that the Respondents hiring practices amounted to a repudiation of the contractually established hiring hall procedures both before and after the contract expired which involve losses extending beyond the contract s term we will have found violations and consequent injuries that have not been addressed by the order the arbitration board devised Consequently we conclude that it is inappropriate to defer to the ar bitration award 44 This does not mean however, that in determin ing the proper interpretation of the hiring hall pro visions in the collective bargaining agreement we cannot look to the arbitration board s rulings on the contractual matters that were before it and are within its authority and expertise Here as in other cases although we are not deferring wholly to an arbitration award and dismissing the pertinent com plaint allegations we may properly rely on the ar bitral award to the extent it resolves issues of con tract interpretation on which the violations before us turn 48 Both the grievances resolved by the ar bitrator and the unfair labor practice allegations in question here turn in part on a determination of the extent if any to which the hiring practices fol lowed by the Respondents were authorized under 4S Southwestern Steel & Supply Y NLRB supra 806 F 2d at 1113 NLRB v Katz 369 U S 736 (1962) 44 The extent of the remedy established by the arbitration board was limited by that board s commitment to an arbitrary length of time--i e the contract s expiration date Under Board law as stated above there is no basis for terminating the remedy at the contracts end Given the par titular facts of this case we find it inappropriate to defer to the arbitra tors award In doing so we are limiting our holding to the specific facts found here We are not finding that the Board would automatically refuse to defer in all situations involving arbitration awards that contain incomplete make whole remedies or remedies otherwise not totally con sistent with Board precedent Olin Corp supra at 574 see also Crown Zellerback Corp 215 NLRB 385 387 (1974) In ruling as we do we also note the absence of any evidence that unlawfully bypassed hiring hall ap plicants engaged in any activities or behavior warranting a limitation on backpay amounts otherwise owed as See e g Litton Systems 283 NLRB 973 (1987) (Board did not defer to an arbitration award because the issues presented were not coexten sive but Board relied on arbitral interpretation of union security provi sion in resolving statutory issue) Lithographers Local 271 (Playing Card) 204 NLRB 418 (1973) enfd 495 F 2d 763 (6th Cir 1971) (Board found that union fine case was properly not deferred to arbitration because arbi trator had no authority over union fines or union threats to its members yet Board relied on arbitrators contractual interpretation to resolve the contractual issue underlying the unfair labor practice finding) 1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the hiring hall provisions of the contract as illumi nated by the parties historical administration of those provisions The record particularly the evidence submitted with the Respondents motion to reopen the record establishes that in interpreting the hiring hall provisions the arbitrators were presented with ample documentary and testimonial evidence about the parties collective bargaining agreements bar gaining history and past practices Reviewing such evidence we find that the arbitrators findings are not only supported by the testimony and data pre sented during the arbitration hearing but are also consistent with evidence presented in the proceed ing before the Board The Board itself has accorded substantial weight to past practices in interpreting contractual provi sions 46 and has recognized the expertise of arbitra tors in assessing such matters 47 Here it appears that the arbitration board had before it all the evi dence necessary to determine precisely what obli gations the contractual hiring hall provisions im posed on the Respondents Further there is noth mg in the arbitration board s analysis that is repug nant to the purposes and policies of the Act We therefore see no reason not to rely on the conclu sion of the arbitrators that there were a number of circumstances under which the Respondents with the Union s knowledge historically bypassed the contractual hiring halls In addition we rely on the arbitrators further conclusion that these historical exceptions effectively became part of the parties agreement Accepting the arbitrators interpretations we conclude that in addition to the judge's findings that the Respondents are under no obligation to contract the hiring halls when employing current employees or when the Union is unable to furnish employees in sufficient time to prevent a delay in vessel movement we find that the Respondents also are not required to use the hiring halls when rehiring old or former employees or when hiring unlicensed individuals at times that the hiring halls are closed on Saturday afternoons Sundays and holidays and when an emergency exists such as when a vessel would be forced to sail short handed because of a departing employees inadequate notice of disembarkment Taking into account the above exceptions to the mandatory use of the hiring halls we find that not all the instances in which the Respondents by passed the hiring hall necessarily violated the Act Thus as a remedial matter to be addressed in com pliance proceedings we find the above exceptions applicable in determining the individual entitle ments of allegedly bypassed unlicensed hinng hall applicants under the hiring hall agreement On a related matter we note that the arbitration board did not address the parties responsibilities regarding licensed unit personnel In fact as stated above the arbitrators specifically excluded licensed employees from the coverage of their award Ac cordingly although we do not disturb the judge s general finding that the Respondents unlawfully failed to use the hiring hall when hiring licensed employees we shall leave to the compliance stage of these proceedings the determination of the cir cumstances under which the Respondents were ob ligated to contact the hiring halls when hiring these individuals The Union argues that the remedy should order the Respondents to offer employment to the indi viduals who were denied hire as a result of the Companies failure to use the hiring halls as re quired We disagree The appropriate remedy in cases involving the repudiation of contractual hiring hall provisions consists of an order instruct mg a respondent to comply with its hiring hall ob ligations and make whole the aggrieved employees and would be employees for losses of wages and benefits 48 In these cases the Board has not pro vided affirmative reinstatement orders In sum relying on the findings of the arbitration board regarding the requirements of the contrac tually established hiring hall procedures and rely ing on the findings of the judge we conclude that the Respondents violated Section 8(a)(5) and (1) of the Act by failing to abide by the hiring hall provi sions in periods both before and after the termina tion of the agreement We have provided a remedy appropriate to the violations on the record before us but leave to compliance those remedial matters about which the record is insufficient F Hiring Employees Without Using the Union Hiring Hall The consolidated complaints further allege that the Respondents repudiated the hiring hall provi sions contained in the parties collective bargaining agreements by hiring certain named individuals on 46 See e g Steelworkers Local 7748 (Eaton Corp) 246 NLRB 12 13 (1979) (proper application of seniority for layoff purposes) Axelson Inc 234 NLRB 414 416 (1978) enfd 599 F 2d 91 (5th Cir 1979) ( payment of wages during contract negotiations) Laborers Local 673 (Perini Corp) 171 NLRB 894 (1968) (operation of hiring hall) 4 See e g Peerless Pressed Metal Corp 198 NLRB 561 (1972) Pet Inc 264 NLRB 1288 1289 (1982) enfd 730 F 2d 812 (D C Cir 1984) 48 Southwestern Steel & Supply 276 NLRB 1569 fn 1 (1985) enfd 806 F 2d 1111 (D C Cir 1986) Southwest Security Equipment Corp 262 NLRB 665 666 (1982) enfd 736 F 2d 1332 (9th Cir 1984) cert denied 105 S Ct 1854 (1985) Yeager Distributing 261 NLRB 847 849 (1982) enfd men 718 F 2d 1109 (9th Cir 1983) cert denied 469 U S 917 (1984) Wayne Electric 226 NLRB 409 In 3 (1976) AMERICAN COMMERCIAL LINES 1077 various dates from September through December 1980 without first contacting the hiring halls for re ferrals The judge dismissed the allegations as they relate to Kerry Ball 49 Ray Helton 50 Craig McQueen and Forest Phillips 51 We find no merit in the Seafarers exceptions to these findings As stated above in part E the judge found that a longstanding exception to the exclusive nature of the parties contractual hiring hall provisions per mitted the Respondents to employ directly cur rent employees i e those without breaks in their current seniority Based on this finding the judge concluded that the Respondents actions in rehiring Stan Mitoraj Jeff Slack and Jeff Jackson were not unlawful because those individuals retained current seniority whereas the rehire of James Gally violat ed Section 8(a)(5) and (1) of the Act because his se niority was broken after he failed to show for an assignment The Seafarers argues that Mitoraf Slack and Jackson experienced breaks in their se niority and as a result their reemployment should have been secured through the hiring halls The Respondents argue with respect to Gally that the judge erred in refusing to defer to the grievance arbitration machinery and in concluding that the hiring hall provisions precluded the Companies from directly rehiring former employees We have decided for reasons set forth in part E, to accept the contractual interpretations regarding unlicensed employees contained in the arbitration award that resulted from the processing of the par ties hiring hall dispute In issuing the award the arbitrators interpreted the hiring hall provisions re lating to unlicensed employees and concluded that the Respondents as a result of well known past practices were permitted to rehire such former employees without referral from the hiring halls re gardless of breaks in seniority Based on the arbi trators construction of the agreement we reverse the judge s conclusion that the Respondents unlaw fully rehired former employee Gally Further while we agree with the judge s dismissal of allega tions regarding Mitoraj Slack and Jackson we do so solely on the basis of their status as former em ployees 52 49 Ball was hired by MAC which as found above is not bound by the contracts between the Seafarers and the Respondents 50 The judge concluded that Helton was hired while the Seafarers were engaged in strike activities during which period the General Coun sel does not claim the Respondents were obligated to use the union hiring hall 5 i The judge found insufficient evidence to support the allegations re lating to McQueen and Phillips 52 In applying the arbitral conclusions to Gaily Mitoraj Slack and Jackson we note that there is nothing in the record to rebut our pre sumption that the listed individuals are unlicensed employees The judge found and we agree despite the Sea farers exceptions that the Respondents did not violate Section 8(a)(5) and (1) of the Act by hiring Craig Backherns Phillips Morris Cameron Otopa lik John Buckman Gary Lamkins Robert Denton Gerald Morgan Prentice Danner Jr Marvin Pirtle Ronnie Combs Jack Basham and Nathan Cannon 53 Finally we adopt the judges finding that the Respondents violated Section 8(a)(5) and (1) of the Act by hiring Kenneth Adkins 54 G The Respondents Refusal to Bargain with the Union The judge found that the Respondents since about December 27 55 violated Section 8(a)(5) and (1) of the Act by engaging in bad faith bargaining without any intention of reaching an agreement with the Union on new collective bargaining agree ments In particular the judge concluded that during negotiations the Respondents without offer ing substantial concessions ( although not required to do so ) insisted on eliminating various benefits under the existing contracts-including the exclu sive union hiring hall checkoff of union initiation fees union trust funds and the union health wel fare pension and vacation plans-while insisting on instituting a broad management rights clause and a probationary period for new employees and limiting the Union s contractual right of access to the Respondents vessels The judge further found that the reasons offered by the Respondents to sup port their bargaining positions were not persuasive and that the Respondents reasonably knew that their proposals would be unacceptable to the Union We find merit in the Respondents excep tions to the judge s findings and for the following Ss The judge found that the employees referred to in the accompany ing text attended the National River Academy a private training school operated by a group of inland waterways towing companies and were guaranteed jobs by the Respondents during the term of the Seafarers strike (i e July 14 through September 15 1980) 54 The judge found that Adkins was hired after the conclusion of the strike mentioned above Although no exceptions were filed with respect to the judge s conclusion that the Respondents violated the Act in hiring Adkins the Seafarers excepted to the judge s failure to find that the Re spondents conduct violated Sec 8 (a)(3) of the Act as well as Sec 8(a)(5) and (1) Inasmuch as the remedy would not be affected by this additional finding we deem it unnecessary to address the Seafarers argument Yeager Distributing 261 NLRB 847 848 fn 7 (1982) V M Construction Co 241 NLRB 584 587 (1979) To remedy this violation the judge ordered the Respondents to offer full and immediate employment to the employee who would have been hired through the hiring hall absent Adkins hiring and to make such em ployee whole for any loss of earnings or other compensation suffered by reason of the Respondents unlawful conduct For reasons stated in part E of this Decision and Order we find the appropriate remedy consists solely of a make whole order and we shall revise the judges recom mended Order accordingly Ss As noted by the judge this date is 6 months prior to the filing of the bad faith bargaining charge on June 27 1980 1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reasons re verse the judge s conclusions and dismiss the applicable complaint allegations As noted at the outset of this Decision and Order the Respondents and the Union have had a collective bargaining relationship that dates back to the early 1960s The parties most recent collective bargaining agreements expired on December 30 The evidence shows that although formal negotia tions for successor contracts began on October 10 the parties met on September 27 and 28 to discuss problems with certain existing contractual provi sions 56 At these meetings the Respondents com plained about the administrative costs and eligibil ity requirements of the Union s vacation plan and the difficulties encountered by employees applying for vacation benefits They further complained that employees had reported problems collecting health and welfare benefits graduates of the Harry Lun deberg School of Seamanship (a jointly adminis tered training school partly funded by a trust agreement between the Respondents and SIU) were not properly trained the hiring halls were not able to satisfy the Respondents needs for em ployees the Union s initiation fee was excessive ($600) the initiation fee and problems with the va cation and health and welfare plans resulted in high employee turnover the standard contract language was unintelligible and the Union was taking enor mous sums of money out of the trust funds for re imbursed services 57 The Union requested that the Respondents make proposals aimed at solving these problems The parties conducted six negotiation meetings prior to the expiration of the contracts The Re spondents presented written proposals at meetings held on October 23 December 17 December 26 and made a final offer on December 27 The Union presented its original proposal on October 23 and thereafter submitted only a wage proposal on De cember 18 and proposals on cost of living adjust ment holidays safe working conditions and work days on December 27 Following the expiration of the contracts the parties met on five additional oc casions with the Union presenting a proposal on January 4 1980 and its final offer on January 5 1980 A Federal mediator was present for a negoti ation meeting held on January 29 1980 and for the final meeting between the parties on April 22 1980 As a result of their negotiations the parties reached agreement on a large number of issues in 56 The judge devoted 48 pages of his decision to detailing the course of the parties negotiations for the new contracts The parties do not dis pute the general accuracy of the judge s factual account of their bargain mg meetings and proposals 67 Most of these complaints were also discussed by the parties at a meeting held in February following which the parties agreed to change certain benefit and contribution rates in the contracts cluding galley equipment repair processing of overtime requests the formation of a committee to address such matters as safety soundproofing life boats and oxygen tanks clothing allowances work schedules overtime for cooks performing certain tasks definition of bad weather shipwreck com pensation the responsibilities of cooks engineers and lead deckhands crew notices placement of walkie talkies on large vessels bulletin boards safe working conditions transportation allowances equal opportunity method of wage payment and the overtime rate of pay In addition partial agree ment was reached on such issues as seniority and job classifications subsistence allowances and hole days There were a number of unresolved issues at the time negotiations between the parties ceased and it was largely with respect to these issues that the judge based his conclusions The judges finding that the Respondents failed to bargain in good faith with the Union appears premised mainly on his subjective evaluation of the substantive nature of the Respondents contract offers which he con cluded were predictable to the Union Contrary to the judge we do not find the Respondents unlaw fully sought to avoid reaching an agreement with the Union or that they made demands that were clearly designed to frustrate the negotiation of a final contract We note at the outset that Section 8(d) of the Act requires an employer to meet at reasonable times with the representative of its employees and confer in good faith with respect to wages hours and other terms and conditions of employment However [I]t must be remembered that Section 8(d) does not compel either party to agree to a proposal or require the making of a concession Thus the Board does not either directly or indirectly compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements 58 absent unusual circum stances not present here 59 In determining whether a party has negotiated in good faith it is necessary to scrutinize the totality of the circumstances and the party s conduct 60 Further specific contract proposals might become relevant in some cases in determining whether a party fulfilled its bargaining obligations 61 When examining such proposals 58 Chevron Chemical Co 261 NLRB 44 46 (1982) citing NLRB v American National Insurance Co 343 U S 395 404 (1952) See also Barry Wehmiller Co 271 NLRB 471 472 (1984) ae Chevron supra at 46 fns 6 and 10 60 Chevron supra at 45 Barry Wehmiller supra at 472 Sanderson Farms 271 NLRB 1477 1478 (1984) Pipe Line Development Co 272 NLRB 48 49 (1984) Si Reichhold Chemicals 288 NLRB 69 (1988) See also Atlanta Hilton & Tower 271 NLRB 1600 (1984) AMERICAN COMMERCIAL LINES however the Board strives to avoid making purely subjective judgments concerning their contents In the instant case having thoroughly reviewed the entire record we conclude that the General Coun sel has failed to prove that the Respondents bar gained in bad faith Initially we note that the Respondents proposals were not so harsh vindictive or unreasonable as to warrant the conclusion they were offered in bad faith 62 Regarding the hiring hall issue for in stance the Respondents on many occasions during the course of negotiations brought to the Union s attention problems with the administration and use of the hiring halls Among the problems cited by the Respondents were that the hinng hall only sup plied about 25 percent of the Respondents needs many referred employees were unacceptable the required $100 clinic card discouraged many poten tial applicants from registering union agents con stantly changed the procedures used in operating the hiring halls leading to confusion and inefficien cy costs were excessive and delays in the referral of employees often caused vessels to sail short handed Although the Union remained inflexible in its demand that the contractual hiring hall language remain unchanged the Respondents sought to cure the above problems by among other things pro posing that the hiring halls be used solely for new employees and only during normal business hours and that the Union provide the Respondents with the names of qualified registrants who could report to the vessels in sufficient time to prevent delays 63 We note that the Respondents exhibited a willing ness to compromise on the hiring hall issue by of fering to accept the existing contractual language if that language were modified to reflect agreements reached by the parties during negotiations e g that the hiring halls be used only when acquiring new employees and that the Respondents give the Union 24 hours notice of vacancies whenever pos sible However the Union resisted any revision to the standard contract language 64 The judge relied on what he considered a broad management rights proposal as an indicia of the Respondents bad faith bargaining 65 Again we 82 Chevron supra at 46 89 The Respondents argument that their hiring hall proposals in part reflected the parties actual past practices is supported by the arbitration awards discussed in part E above 64 The Union argues that the Respondents repudiation of the hinng hall provisions discussed above in part E evidences an intent not to reach agreement on this issue On the contrary we find that the Re spondents proposals were not aimed at eliminating the hiring hall at rangement but rather at curing its perceived defects 6s The Union does not claim that the management rights clause pro posed by the Respondents was unlawful per se 1079 disagree The proposal presented by the Respond ents made the exercise of management rights sub ject to the express terms of the contract and the grievance arbitration procedure Further the Re spondents modified their proposal at the Union s suggestion to provide that the right to release em ployees would be subject to contractual seniority provisions In addition we note that the Respond ents offered to drop their management rights pro posal if the Union made concessions in an area of interest to the Companies Concerning the Respondents proposal for a pro bationary period for deck department employees the record shows that the most recent contracts covering licensed employees contained a probation ary period clause as did the 1973-1976 contracts for unlicensed employees and that the parties agreed during the negotiations for the 1976-1979 unlicensed contracts that their representatives would work out replacement language for the ex piring clauses Although such replacement Ian guage was not drafted the Respondents at no time indicated that they had granted a concession in this area During the negotiations at issue here the Re spondents explained that they wanted a time period to evaluate new employees In response to the Union s argument that the Companies were seeking to employ one half of their employees at lower probationary rates the Respondents offered to ne gotiate mutually agreeable probationary wages and to pay employees retroactively the difference be tween the probationary and regular rates of pay after the employees probationary periods expired We fail to see how the Respondents proposals on this issue could be construed as evidence of an intent to avoid reaching agreement The judge concluded that the Respondents un lawfully sought to eliminate various union trust funds including the vacation plan health and wel fare plan Harry Lundeberg School of Seamanship (HLSS) and hiring hall trust fund We find that the record indicates the Respondents initially ex pressed a willingness to continue the union plans if various problems were remedied 66 As negotiations progressed the Respondents informed the Union that they could duplicate the benefits of the funds at one half of the existing costs and were willing to discuss any level of coverage The Companies of fered to adhere to the union plans provided the 66 The Respondents presented numerous employee witnesses who tests fled regarding problems with the plans such as failure or delays in receiv ing benefits failure to receive the full amounts contributed to the plans dissatisfaction with the requirement that employees use Public Health Service (USPHS) rather than their own doctors frustration over the in convenience of using the Union s procedures and concern about the in competency of many HLSS graduates We agree with the Respondents that these employee complaints were far from isolated in nature 1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD SIU s costs were competitive the administration of the plans was improved and the eligibility require ments were loosened The SIU consistently failed to justify its costs and administrative fees and insist ed on retaining the existing plans without modifica tion The Union also failed to provide the Re spondents with information relating to the costs of the union plans at certain specified benefit levels It was only after the Union failed to furnish the re quested information that the Respondents proposed establishing their own company administered plans 67 In addition to the proposals discussed above the basis for the Respondents proposals on checkoff 68 access 69 and wages70 were adequately explained Although we take no position regarding the exact contents of these proposals we conclude from re viewing them in the context of negotiations that the Respondents engaged in nothing more than hard bargaining In sum we find that the Respond ents did not demonstrate the kind of intransigence or insistence on extreme proposals that evidences an overall intent to frustrate the collective bargain ing process We conclude contrary to the judge that the proposals described above and the totality of the Respondents conduct dunng negotiations are in dicative of lawful hard bargaining Apart from the contract proposals themselves our conclusion that the Respondents fulfilled their good faith bargain ing obligation is supported by other factors rele vant to an analysis of the totality of circum 6 The Respondents conduct regarding the trust funds is discussed in more detail below at part H 68 In support of its proposal to eliminate the checkoff of union mid ation fees the Respondents reiterated on numerous occasions dunng ne gotiations that the Union s $600 initiation fee was excessive and was a major contributing factor to the high employee turnover experienced by the Companies Early in negotiations the Union in recognition of the problem proposed that initiation fee for all new employees from HLSS be waived for 6 months and then withheld at the rate of $5 per month The Respondents countered that if this procedure were applied to all new employees they would agree to checkoff initiation fees Although the Union consistently rejected this counteroffer the Respondents repeat edly informed the Union that they could not agree to the checkoff of mi tiation fees required on other than a uniform basis 69 The Respondents proposal on this issue sought to limit the Union s right of vessel access to matters of contract administration The Re spondents informed the Union they were requesting this limitation be cause vessel visitations had quadrupled and they had experienced in stances of patrolmen misconduct Prior to the start of negotiations the Union furnished the Respondents with a list of authorized agents and the parties agreed to restrict access to two agents per visit We note that the Respondents at no time dunng bargaining sought to eliminate the Union s access right Rather the Respondents sought merely to modify them 70 The judge concluded that the Respondents wage offers were in substantial We disagree Although the wage offers were not as high as the Union requested the Respondents raised their offers on several occa sions and the final proposed increases were approximately 24 to 48 per cent (depending on job classifications) higher than existing wage rates We note also that it was the Respondents who first suggested that wages be raised substantially in an effort to reduce employee turnover stances 71 In this regard the record reflects that the Respondents met with the SIU at reasonable times and places agreed to the presence and assist ance of a Federal mediator presented many pro posals and counterproposals offered justification for their bargaining positions substantiated their claims of problems with various provisions con tained in the most recent contracts agreed to modify proposals in response to the SIU s opposi tion and otherwise fulfilled their procedural obli gations The record reflects that on October 20 1980 the Respondents requested that the parties resume bargaining Although the Union refused the Respondents sent new proposals to the Union on November 14 1980 Finally given the above facts and circumstances establishing the Respond ents good faith at the bargaining table we do not find as did the judge that the Respondents unlaw ful conduct away from the bargaining table reflect ed an interest on the part of the Respondents to ne gotiate without any intention of reaching agree ment Respondents bargaining conduct as summa rized above was not ambiguous or devious Their positions were clearly presented and they showed a willingness to compromise Consequently we are unable to find that the Respondents lawful bar gaining conduct was converted into a violation of Section 8(a)(5) solely on the basis of the miscon duct in which the Respondents engaged in away from the bargaining table Baldwin County Electric Membership Corp 145 NLRB 1316 1317 (1964) Cf Chatham Mfg Co 172 NLRB 1946 1947 (1968) Accordingly based on all the above we re verse the judge and dismiss the applicable com plaint allegations H Unilateral Changes Involving Trust Funds and Creation of a Pension Plan The pleadings allege and the judge found that the Respondents violated Section 8(a)(5) and (1) of the Act by unlawfully refusing since about April 6 1980 to recognize and bargain with the Union by unilateraly discontinuing and refusing to pay monthly contributions to various jointly adminis tered labor/management trust funds including the Seafarers Welfare Plan (a portion of which funded the Seafarers Pension Plan) HLSS Seafarers Hiring Hall Trust Fund and the Seafarers Vaca Lion Plan We find merit in the Respondents con 7 Our analysis of the totality of circumstances must also include con sideration of the Union s conduct We specifically refer to the Union s statement on December 27 that there would be no economic counterpro posals made until the contractual language problems were worked out Although the Union s conduct was not alleged to be unlawful the pose lion taken by the Union at the December 27 bargaining session (the last session before the expiration of the contracts) could only have hindered successful bargaining AMERICAN COMMERCIAL LINES 1081 tention that the complaint allegations concerning the cessation of contributions to the trust funds are barred by Section 10(b) of the Act The record reveals that the contracts between the Respondents and the Union contained provi sions that required the Respondents to make monthly contributions based on per man per day rates for both licensed and unlicensed employees to the trust funds described above On expiration of the contracts (i e December 30) the Respondents discontinued making such payments Prior to taking this action the Respondents submitted a final offer to the Union in the course of the negoti ations discussed in more detail in part G of this De cision and Order In making their final offer the Respondents reiterated to the Union what they per ceived as problems with the trust funds and re newed their proposal to institute company adminis tered plans Further the Respondents informed the Union that if it did not accept their final offer they would communicate the terms of the offer to the employees and on December 31 implement the economic provisions (including the benefit plans) of their last proposal Although the Respondents ceased making contributions to the trust funds of fective December 31 precisely as they had in formed the Union the Union failed to file a charge with respect to the Respondents actions until Oc tober 6 1980 about 10 months after the initial ces sation of contributions Section 10(b) of the Act precludes the issuance of a complaint based upon any unfair labor prac tice occurring more than six months prior to the filing of the charge with the Board and the sevice of a copy thereof upon the charged party 72 In this case it is undisputed that outside the 10(b) period the Respondents unequivocally repudiated their obligation to make contributions into the trust funds with the knowledge of the Union At no time since have the Respondents resumed making the payments Furthermore the Respondents have not engaged in any conduct nor have there been any intervening circumstances which can be construed as inconsistent with the Respondents initial actions Consequently because all the operative facts estab lishing the violations occurred outside the 10(b) period we find that the Board is precluded from deciding the underlying substantive legal issues In so concluding we note that in our recent de cision in Chemung Contracting Corp 291 NLRB 773 774 ( 1988) we reiterated the Board s position that although the General Counsel can rely on evi dence outside the 10(b) period as background 72 The judges selection of April 6 1980 noted above represents the commencement of the 6 month period before the filing of the applicable charge without running afoul of Section 10(b) of the Act the General Counsel is barred from bringing any complaint in which the operative events establish ing the violation occurred more than 6 months before the unfair labor practice charge had been filed and served In Chemung we distinguished Farmingdale Iron Works 249 NLRB 98 (1980) enfd mem 666 F 2d 910 (2d Cir 1981) from cases such as the instant one Specifically we noted that Farmingdale involved a charge filed during the term of an existing collective bargaining agreement regarding the cessation of contractually required periodic benefit fund payments Because the con tract was still running we noted that the General Counsel did not need to reach beyond the 10(b) period for evidence to support the charge In other words the separate and distinct violations in Farmingdale were provable by evidence within 6 months of the filing of the charge In Chemung and in this case by contrast the Respondents breach of their statutory obligations could be established only by producing evidence of an unequivocal ces sation of fund payments outside the 10(b) period Thus both the circumstances that created the obli gation and those that gave notice to the Union of its breach occurred more than 6 months before the Union filed its charge Accordingly we reverse the judge s conclusions and dismiss the pertinent com plaint allegations 73 The judge also found that the Respondents vio lated Section 8(a)(5) and (1) of the Act by unilater ally instituting on August 20 1981 (retroactive to January 1 1980) a new pension plan known as the 2 On April 23 1984 the Fifth Circuit Court of Appeals issued its de cision in American Commercial Barge Lines Co v Seafarers Atlantic Dis trict 730 F 2d 327 (5th Cir 1984) In that case brought under Sec 302 of the Act the respondents sought injunctive relief against the union s al leged bargaining demands and strike activities seeking company contribu tions to the trust funds discussed above The Fifth Circuit remanded the case to the district court with directions to stay further action until the Board ruled in this unfair labor practice proceeding and posed to the Board the question regarding the facial validity of the trust funds With all due respect for the Fifth Circuit we note initially that the Board was not and is not a party to the Sec 302 suit Further the par ties in the instant case agreed and the judge found that the nature of the Union s strike in the summer of 1980 was not an issue and would not be litigated in the present unfair labor practice proceeding Because of our determination here that the Respondents discontinuation of contributions into the trust funds cannot form the basis of an unfair labor practice find ing in this case because the underlying charges are time barred we need not pass either on the issue of the facial validity of the funds (which no party to this proceeding previously requested) or on the question of the Board s jurisdiction to determine violations of Sec 302 of the Act We therefore deny the Respondents motion of October 22 1984 to reopen the record and receive into evidence documents relating to the various trust funds Considering the obvious complexity of these consolidated cases and that the issue of the facial validity of the funds is not connected with any litigable issue in the context of our present decision we respect fully decline to prolong our ruling on the matters before us to engage in necessarily protracted and detailed consideration of the intricacies of the funds for issuing what would be in essence an advisory opinion for use in a case in which the Board did not participate 1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Inland Tugs Pension Plan covering all the Re spondents unit employees 74 We find meet in the Respondents exceptions to this ruling and for the following reasons reverse the judge s conclusions As discussed above in part G the Respondents throughout contract negotiations informed the Union of employee complaints regarding the ad ministration of and coverage provided by the trust funds (including the SIU Pension Plan Trust Fund) As early as October 23, the Respondents in formed the Union that they planned to propose a company administered health welfare and pension plan with a shorter eligibility period than that con tamed in the union plan The Respondents pro posed that the plan be maintained by them at no cost to the employees with deductibles and eligi bility requirements determined by the parties The Union s position was that it could not agree to any company paid or administered plan but only to the standard union plan At the parties December 17 bargaining session the Respondents proposed to continue the SIU pension plan if the Union would justify its adminis trative costs and provide the Respondent with a cost proposal for maintaining the union plan at cer tarn desired benefits levels 75 The Union agreed to compile the requested information On December 26 however the Respondents withdrew their offer to keep the union pension plan when they were not provided with the requested financial rnforma tion 7 6 The Respondents proposed instead a com pany plan paying the employees $10 50 per month for each year of service less any vested union ben efits The Union indicated it would agree only to the standard union plan On December 27 the parties again discussed the Respondents $10 50 pension proposal and the Union was informed that the Respondents offer was final The Union was also informed that the Respondents intended to implement its proposed plan The Union rejected the offer and on Decem ber 31 the Respondents began to implement por tions of their last proposals In a letter to employ ees dated January 3 1980 the Union informed its members that the Respondents had placed into effect a company administered pension plan to re place the Union s plan However the parties con tinued to negotiate and during meetings held on January 4 and 5 1980 the pension plan issue was again discussed The Union proposed an increase in 74 As a result of the merger of ABL and SOT into ITC the employees of ABL and SOT were transferred to ITC 76 The Respondents expressed concern about the large sums of money the Union extracted from the fund for reimbursed services and requested evidence that such payments were legitimate 78 Tl•e Union s failure to provide the requested financial data was net ther alleged nor found to violate the Act contributions to the SIU Pension Plan but the Re spondents rejected the proposal and adhered to their final offer The Union reiterated that only the standard union trust fund was acceptable The parties met with a Federal mediator on Jan uary 29 1980 and although no progress was made the parties identified the trust funds as a major issue separating them During February and March 1980 the Respondents asked the Union for a list of all present and former employees who were vested in the SIU plan and for a copy of cer tarn SIU fund documents The information was re quested so that the Respondents actuaries could determine any unfunded liabilities and arrive at a figure to qualify the company plan under ERISA and IRS regulations The Respondents thereafter arranged what was to be the parties final negotia tion meeting on April 22 1980 During that meet ing at which a Federal mediator was present the Union insisted that without the Respondents agree ment to contribute to the union trust funds there would be no contract The Respondents did not yield Meanwhile during the spring of 1980 the Respondents drafted and submitted to the IRS their proposed pension plan In October 1980 the Union denied the Respondents request for renewed bar gaining Thereafter in December 1980 the Re spondents provided the Union with the final work ing copy of the ITC Pension Plan and requested comments regarding a proposed letter to employ ees introducing the plan It is undisputed that the document provided to the Union did not contain any substantive matters not discussed during nego tiations 77 On August 20 1981 the Respondents executed the ITC Pension Plan retroactive to Jan uary 1 1980 We disagree with the judge that the Respond ents conduct was unlawful and find instead that the parties were at impasse on April 22 1980 on the pension plan issue It is well settled that An employer violates his duty to bargain if when negotiations are sought or are in progress he unilaterally institutes changes in existing terms and conditions of employment On the other hand after bargaining to an im passe that is after good faith negotiations have exhausted the prospects of concluding an agreement an employer does rot violate the Act by making unilateral changes that are rea sonably comprehended within his pre impasse proposals 77 It is uncontroverted that he parties discussed during negotiations both the level of benefits and the cost of coverage The plan s legally re quired boilerplate language was at no time a point of contention AMERICAN COMMERCIAL LINES Whether a bargaining impasse exists is a matter of judgment The bargaining history the good faith of the parties in negotiations the length of negotiations the importance of the issue or issues as to which there is dis agreement the contemporaneous understand ing of the parties as to the state of negotiations are all relevant factors to be considered in de cidmg whether an impasse in bargaining exist ed Taft Broadcasting Co 163 NLRB 475 478 (1967), petition for review denied 395 F 2d 622 (D C Cir 1968) In our judgment application of the above standards supports a finding of impasse on April 22, 1980 The parties had a longstanding collective bargaining relationship and as found above, the record reflects that the Respondents engaged in good faith bargaining However after more than 10 bargaining sessions , progress was imperceptible on several critical issues, including pension benefits At no time after December 26 did the Respond ents proposals contain an offer to continue the Re spondents participation in the SIU Pension Plan as persistently sought by the Union Rather, the Re spondents consistently proposed a company admin istered plan Negotiations clearly were deadlocked on the issue of pension benefits Further we are unable to conclude that a continuation of sessions would have resolved this issue or culminated in a bargaining agreement In these circumstances we find that an impasse occurred when on April 22, 1980 the Union insisted that unless the Respond ents agreed to contribute to the union trust funds there would be no contract We find further that the pension plan executed by the Companies con tained benefits substantially identical to those pre sented to the Union during the parties negotiation meetings Thus the changes implemented by the Respondents after impasse satisfy the Taft Broad casting standard of being reasonably comprehend ed within the Respondents preimpasse proposals We conclude therefore that the Respondents in instituting the ITC Pension Plan did not violate Section 8(a)(5) and (1) of the Act 78 Accordingly we shall dismiss the applicable complaint allega tions I The Respondents Refusal or Delay in Furnishing Irformation to the Union Except as noted below regarding the crew lists we adopt the judge s conclusions regarding the al legations that the Respondents violated Section 8(a)(5) and (1) of the Act by their refusal to fur 78 See generally E I du Pont & Co 268 NLRB 1075 (1984) 1083 rash or their unreasonable delay in furnishing cer tarn information requested by the Union 79 We also adopt his conclusion that the Respondents did not violate the Act by failing to comply with the Union s December 30 1980 request for seniority lists as of December 31, 1987 but for different rea sons from those on which he relied The judge concluded that the Union offered no evidence to establish the necessity or relevance of a seniority list for a period ending when the con tracts expired 1 year earlier and that absent such evidence the Respondents conduct could not be found unlawful We find instead that the record es tablishes that every 10 days to 2 weeks up until the time the contracts expired, the Respondents pro vided the Union with such documents as lists of emergency hires 80 weekly boat payroll records 81 and weekly lists of new employees hired from sources other than the union hiring halls We fur ther find that through the information received by the Union prior to December 31 the Union had the raw data with which to create the seniority list requested from the Respondents Thus, because the Union was provided with the information they de sired albeit in a different form and because there is no evidence that the Respondents could analyze the raw data and create the seniority list in any more expeditious or effective manner than the Union we conclude that the Respondents did not violate the Act as alleged 82 We reverse the judge s finding however, that the Respondents did not violate the Act through the actions of their captains and pilots from about September 25, 1980 until April 30 1981 in refus ing to furnish crew lists to union representatives visiting ,arious of the Respondents vessels The multiple copy crew list form functions as a crew member s employment record consisting of a sign in and sign off sheet which lists the employees names social security number company vessel job rating boarding and disembarking data (date time and place) hours worked addresses and other job related information Several patrolmen testified that crew lists are used while servicing 79 We find that the record supports the Union s contention that regard ing the Union s October 20 1980 request for a list of all current employ ees the Respondents did not provide the Union with requested employ ment date information until February 8 1981 rather than January 29 1981 as found by the judge 80 Such lists contained inter alas the employees names addresses job classifications social security numbers and vessel assignments a 1 These records contained the employees names job classifications dates and times assigned to vessels pay periods wage advances and other information 82 See generally Holmes Typography 218 NLRB 518 522 525 (1975) This case is distinguishable from Interstate Food Processing 283 NLRB 303 (1987) in which the raw data supplied to the union did not include all relevant information requested 1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vessels to identify crewmembers determine wheth er any new employees have been hired update ad dresses and prepare reports of vessels visitation Although the judge found that the Union at times had access to the information contained on the crew lists directly from crewmembers or through other records provided to the Union on a periodic basis we find that the information con tained on the readily available crew lists such as names addresses and job classifications is pre sumptively necessary and relevant to the Union in its role as a collective bargaining representative Tom s Ford 253 NLRB 888 895 (1980) We further find that the crew lists served an indispensable role in allowing patrolmen to service vessels effectively at the time of their visits By contrast receipt of al legedly comparable information at a later date by most likely a different union representative would not enable the Union to perform its duties as a bar gaining representative while visiting vessels 83 In addition regarding the argument that the Union had access to critical information directly from crewmembers we note that crewmembers were not always available for consultation with visiting patrolmen Consequently we find that the Re spondents violated Section 8(a)(5) and (1) of the Act by failing to provide the Union with the re quested crew lists 84 The applicable conclusions of law remedy and Order have been revised to con form with the above findings J Chartering Vessels We adopt for reasons fully stated in the judge s decision the judge s conclusion that the Respond 81 We note that at any one time as many as 450 unit employees could be working aboard about 54 vessels Thus the need for crew lists while servicing vessels is readily apparent By contrast we ruled above that the Union has the capability of creating a seniority list as of December 31 1979 based on raw data provided by the Respondents Although the Union may have the same capability regarding the crew lists we distin guish these matters by comparing the impact any delay might have in of fectively servicing a manned vessel in operation with the negligible impact if any a delay might have in constructing a retroactive seniority list 84In so finding we note that union patrolmen credibly testified re gardmg about 52 specific instances to which their requests for crew lists were denied For example on September 27 1980 Captain James Phil port of the vessel Hendricks unlawfully failed to comply with the Union s request for a crew list We conclude that we need not pass on each indi vidual occurrence alleged to be unlawful here because such a course of action in addition to being redundant would not affect the remedy or dered in this decision In ruling as we do we recognize as did the judge that in certain in stances the evidence failed to establish that requests for crew lists were made (e g vessels Lehman on April 23 1981 and Mack on January 12 1981) or the record revealed that the Union agreed that the information provided on request was sufficient (e g vessels Breen on October 14 1980 and Butcher on December 9 1980) or union patrolmen failed to identify positively as a captain or pilot the person to whom the alleged request for a crew list was made (e g vessels Mills on October 9 1980 and Stephens on October 28 1980) In those instances outlined in full in the Judges decision we find no violation of Sec 8(a)(5) and ( 1) of the Act See pars 4-9 of sec III K of the judge s decision ents did not violate Section 8(a)(5) and (1) of the Act as alleged by repudiating a contractual prove Sion regarding chartering fully founded boats for more than 90 days 85 K The Respondent Union s Refusal to Furnish Information We reverse for reasons stated below the judge s conclusion that the Respondent Union violated Section 8(b)(3) of the Act by refusing to furnish certain information to the Companies The pertinent facts are set forth in full in the judge s decision Briefly as mentioned above in part H the future of the trust funds was a disputed issue during negotiations between the parties and effective December 31 the Companies ceased making contributions to the funds At a number of bargaining sessions the Companies proposed to eliminate or change the plans and to institute their own plans On February 7 1980 the Companies asked the Union to furnish them with a list of present and former employees of ITC ABL SOT and NTC who were vested in the SIU Pension Plan so that company actuaries could evaluate a proposed employer administered plan and deter mine any unfunded liability the Companies might have under the SIU plan The Companies also re quested a summary plan description of the SIU Pension Plan and copies of the trust agreements On February 14 1980 a special assistant to the ad ministrator of the SIU Pension Plan sent the Corn parties a copy of the request trust agreement and summary plan description booklet for the pension plan On March 18 1980 the Companies sent let ters to the Union and to an official of the SIU Pen sion Plan renewing the request for a list of employ ees with vested benefits Although the Companies requested that information again on two occasions in April 1980 Respondent Union at no time fur nished the data By letter to the Union dated August 25 1980 the Companies further requested copies of the trust fund agreements for the SIU Pension Plan Welfare Plan HLSS Transportation Institute and Hiring Hall Trust Fund or in the al ternative asked that the Union request the trustees of the funds to provide the Companies with the copies Despite the Companies renewal of this re quest in September 1980 Respondent Union at no time provided the requested documents 86 85 As explained in the Judges decision a fully founded boat is one in which a company under contract to perform certain services provides a fully crewed and equipped vessel 88 By letter dated September 16 1980 the Union informed the Compa vies that their files indicated the Companies acknowledged receipt of the documents at the time the contractual provisions relating to them were executed AMERICAN COMMERCIAL LINES The judge concluded that Respondent Union violated Section 8(b)(3) of the Act by refusing to furnish the Companies with the information de scribed above The judge noted the Union s admis lion that as bargaining agent for the Companies employees it was capable of obtaining from the SIU Pension Plan the information regarding em ployees with vested benefits The judge added that Since the Union in its capacity as bargaining agent was entitled to obtain such information from the trust fund the Companies as parties to the con tracts and contributors to this trust fund would have a similar right to such information To sup port his findings the judge cited Hospital Employ ees (Sinai Hospital) 248 NLRB 631 (1980) enfd mem 637 F 2d 1314 (4th Cir 1981) in which the Board found that a union s collective bargaining representative who was also trustee of a health and welfare trust fund violated Section 8(a)(3) of the Act by intentionally collaborating with other union trustees to prohibit an employers access to relevant information requested from the fund The Board concluded that the union representative vio lated his affirmative duty to make a reasonable effort to obtain the information investigate reason able alternative means for obtaining it or truthfully explain the reasons for its unavailability After the Board decided Sinai the Supreme Court held in NLRB v Amax Coal Co 453 U S 322 (1981) that trustees of jointly administered funds are not agents of their respective parties but are fiduciaries whose duty to the trust beneficiaries must overcome any loyalty to the interest of the party that appointed them Following the issuance of the judges decision in the instant case the Board issued Food & Commercial Workers Local 1439 (Layman s Market) 268 NLRB 789 (1984) In that decision the Board modified its holding in Sinai to reflect the Supreme Court s opinion in Amax Coal The Board concluded that its decision in Sinai applies only when it is established that a collective bargaining representative demonstrates it is in de facto control of a nominally independent trust fund Applying the current standards to the instant case we find that although Respondent Union had representatives on the jointly administered trust funds there is no evidence that the Union was in de facto control of the funds 87 Further the Union did not take any action to prevent the Companies from obtaining any of the requested information We further find that the Companies were aware of alternative means of obtaining the information they desired as evidenced by the Companies receipt of 87 As found by the judge the Companies did not have any of their own representatives on the funds 1085 information directly from the SIU Pension Plan by letter dated February 14 1980 and by the Compa vies subsequent request for information from the fund by letter dated March 18 1980 In addition there is no evidence that the Union possessed the specific information requested by the Companies 88 As we stated in Layman s Market supra at 781 [W]e find no reason for imposing additional burdens on the Union s collective bargaining representative since he would have had to secure [the information] from the administra tor which the Employer could do equally well and there is no evidence that the Union s collective bargaining representative had any more expeditious or effective access to the in formation than the Employer Accordingly we shall dismiss all allegations that Respondent Union violated the Act by failing to furnish requested information 89 and we shall delete the recommended Order against Respondent Union in its entirety CONCLUSIONS OF LAW I American Commercial Lines Inc American Commercial Barge Line Company American Barge Line Inc Southern Ohio Towing Compa ny Inc Inland Tugs Co and Mac Towing Inc are all employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Seafarers International Union of North Amer ica Atlantic Gulf Lakes and Inland Waters Dis tnct AFL-CIO and the Inland Rivermen s Asso ciation of the United States are each labor organs zations within the meaning of Section 2(5) of the Act 3 The following three separate units each consti tute units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All head deckhands deckhands cooks trainee engineers and tankermen employed by ITC River Division on boats owned operated or chartered on a bareboat basis by it exclud ing professional employees guards and super visors as defined in the Act and all other em ployees This recognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidiary or affiliated companies 88 Cf Plasterers Local 346 (Browner Plastering) 273 NLRB 1143 (1984) 89 In any event regarding the Companies request for copies of the trust fund agreements the record reveals the Companies were provided with a copy of the SIU Pension Plan agreement and summary plan de scnption in February 1980 as set forth above in this section 1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All engineers and assistant engineers em ployed by ITC River Division on boats owned operated or chartered on a bareboat basis by it excluding professional employees guards and supervisors as defined in the Act and all other employees This recognition shall not apply to bareboat charters to other opera tors nor to crews of towboats of subsidiary or affiliated companies All chief engineers head deckhands deck hands cooks trainee engineers and tankermen employed by ITC Canal Division on boats owned operated or chartered on a bareboat basis by it excluding professional employees guards and supervisors as defined in the Act and all other employees This recognition shall not apply to bareboat charters to other opera tors nor to crews of towboats of subsidiary or affiliated companies 4 Seafarers International Union of North Amer ica Atlantic Gulf Lakes and Inland Waters Dis tnct, AFL-CIO is now and at all times material here has been the exclusive representative of all the employees in the above appropriate units for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 5 By informing union representatives in the presence of employees whom they represent that they could not talk to the employees and prevent ing them from doing so threatening employees with discharge if they did not accept the Compa vies contract proposals intimidating a union dele gate employee by throwing the union contract in the trash and stating that was what they thought of the employee and the Union threatening an em ployee with enforcing break periods because em ployees had asserted their contractual rights inter rogating an employee about a union meeting promising employees that without the union they would be paid extra the money being paid to the joint union/management training school and en gaging in surveillance of employees union meet ings the Respondents have interfered with re strained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act and have engaged in unfair labor practices in violation of Section 8(a)(1) of the Act 6 By informing employees that other employees were being discharged because they were union members, Respondent MAC has interfered with restrained and coerced its employees in the exer cise of their rights guaranteed in Section 7 of the Act and has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act 7 By discrimmatorily discharging Paul Cook Timothy Priode Garon Sneed Roy Stinson and Anthony Velar on October 7 1979 Mark Glies on November 24 1979 and Gary Wilkins on Decem ber 7 1979 by discriminatorily accelerating the discharge of David Robertson on October 7 1979 and by discriminatorily refusing to recall Donald Mentt Jr from about September 21 1979 to about September 29 1980 and Robert Pruitt from about September 17 to November 2 1979 because of their union memberships and activities the Re spondents have engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act 8 By discrunmatorily discharging Johnny Hall mark on September 11 1979 because of his union membership and Edward Pittman and Richard Hitchcock on December 3 1979 because they were believed to be union members or supporters Respondent MAC has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act 9 By unilaterally repudiating since November 1 1979 the contracts provisions allowing union rep resentatives access to the Respondents vessels uni laterally repudiating since about October 31 1979 the contracts hiring hall provisions and by unilat erally repudiating the contracts hiring hall provi sions by hiring Kenneth Adkins who began work on December 29 1980 the Respondents have en gaged in unfair labor practices in violation of Sec tion 8(a)(5) and (1) of the Act 10 By refusing between about September 25 1980 and April 30 1981 to provide union patrol men with crew lists refusing since about Septem ber 12 1980, to furnish the Union with the weekly boat payroll records for the period from about Jan uary 1 until about October 3, 1980 unreasonably delaying from about October 20 1980 until about February 8 1981 in furnishing the Union with the employment dates of the unit employees refusing since about December 30 1980 to furnish the Union with the job titles of unit employees with a list of all unit employees terminated since Decem ber 31 1979 with their termination dates and the reasons and with copies of employment cards of unit employees and unreasonably delaying from about December 30 1980 to about January 1982 in furnishing the Union with a list of all employees hired in the units since December 31 1979 with their social security numbers job titles and dates of hire all of which information was relevant and reasonably necessary for the Union s proper execu tion of its bargaining obligations the Respondents have engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act 11 The above unfair labor practices affect com merce within the meaning of Section 2(6) and (7) of the Act AMERICAN COMMERCIAL LINES 1087 REMEDY Having found that the Respondents violated Sec tion 8(a)(1) (3) and (5) of the Act and that Re spondent MAC violated Section 8(a)(1) and (3) of the Act we shall order them to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act Specifically we shall order that the Respondents offer immediate and full reinstatement if they have not already done so to Paul Cook Timothy Priode Garon Sneed Roy Stinson and Anthony Velar discriminatorily discharged on October 7 1979 to Mark Glies discriminatorily discharged on November 24 1979 and to Gary Wilkins discri minatorily discharged on December 7 1979 to their former jobs or if those jobs no longer exist to substantially equivalent jobs without prejudice to their seniority or any other rights or privileges previously enjoyed and to make them along with David Robertson whose discharge was discrimina torily accelerated on October 7 1979 and Donald Meritt Jr who was discriminatorily refused recall from about September 21 1979 to about Septem ber 29 1980 and Robert Pruitt who was discri minatorily refused recall from about September 17 to November 2 1979 whole for any loss of earn ings and other benefits suffered as a result of the discrimination against them and to restore Meritt and Pruitt to their seniority and other rights and privileges We shall order Respondent MAC to offer immediate and full reinstatement if it has not already done so to Johnny Hallmark discrimina torily discharged on September 11 1979 and to Edward Pittman and Richard Hitchcock discri minatonly discharged on December 3 1979 to their former jobs or if those jobs no longer exist to substantially equivalent jobs without prejudice to their seniority or any other rights or privileges previously enjoyed and to make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them Backpay shall be computed as prescribed in F W Wool worth Co 90 NLRB 289 (1950) with interest to be computed in the manner prescribed in New Hori zons for the Retarded 90 The Respondents and Re spondent MAC shall also remove from their files any references to the unlawful discharges and re fusals to recall the above employees and shall notify them in writing that this has been done and that the unlawful conduct will not be used against them in any way Having found that the Respondents unlawfully repudiated the contract provisions allowing union representatives access to the Respondents vessels and requiring use of the union hiring hall (includ ing the unlawful hiring of employee Kenneth Adkins) we shall order the Respondents to bargain with the Union before making unilateral changes affecting unit employees and to give effect to those provisions in the contracts 91 and jointly and sever ally to make whole the employees and would be employees in the units found appropriate in this de cision for losses of earnings and other benefits suf fered by reason of the Respondents failure to comply with the hiring hall provisions of the con tracts with backpay and interest computed in the manner prescribed above Having found that the Respondents unlawfully refused to furnish or delayed in furnishing the Union with certain relevant and necessary informa tion identified in this decision we shall order the Respondents to furnish that information ORDER A The National Labor Relations Board orders that the Respondents American Barge Line Inc Southern Ohio Towing Company Inc Inland Tugs Co and American Commercial Barge Line Company Jeffersonville Indiana their officers agents successors and assigns shall I Cease and desist from (a) Prohibiting union representatives from talking to employees they represent (b) Engaging in surveillance of employees union meetings (c) Threatening employees with discharge for not accepting the Companies contract proposals (d) Intimidating employees by throwing union contracts in the trash and commenting that is what the Companies think of the employees and the Union (e) Threatening employees with enforcing break periods because they assert their contractual rights (f) Interrogating employees about union meet ings (g) Promising employees that without the Union they would receive as extra compensation the money paid by the Companies to the joint union/ management training school ao 283 NLRB 1173 (1987) Interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621 ) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 91 As stated in part E of this Decision and Order the contractual inter pretation of an arbitration panel addressing the parties unlicensed agree ment shall be applied in determining the entitlement of unlicensed mdi viduals Further we shall leave to the compliance stage of these proceed ings the determination of the circumstances under which the Respondents are to contact the hiring halls when hiring licensed individuals 1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (h) Discouraging membership and activities in the Seafarers International Union of North Amer ica Atlantic Gulf Lakes and Inland Waters Dis tact AFL-CIO or any other labor organization by discharging refusing to recall or in any other manner discriminating against employees regarding their hire or tenure of employment or any term or condition of employment (i) Unilaterally repudiating refusing to abide by and making unilateral changes regarding provisions in the collective bargaining agreements with the Union allowing union representatives access to the Respondents vessels and requiring use of the union hiring hall (j) Refusing to bargain collectively with the Union by delaying in furnishing or refusing to fur rash relevant and reasonably necessary information for the Union s proper execution of its bargaining obligations as the exclusive representative of em ployees in the following three separate appropriate units All head deckhands deckhands cooks trainee engineers and tankermen employed by ITC River Division on boats owned operated or chartered on a bareboat basis by it exclud ing professional employees guards and super visors as defined in the Act and all other em ployees This recognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidiary or affiliated companies All engineers and assistant engineers em ployed by ITC River Division on boats owned operated or chartered on a bareboat basis by it excluding professional employees guards and supervisors as defined in the Act and all other employees This recognition shall not apply to bareboat charters to other opera tors nor to crews of towboats of subsidiary or affiliated companies All chief engineers head deckhands deck hands cooks trainee engineers and tankermen employed by ITC Canal Division on boats owned operated or chartered on a bareboat basis by it excluding professional employees guards and supervisors as defined in the Act and all other employees This recognition shall not apply to bareboat charters to other opera tors nor to crews of towboats of subsidiary or affiliated companies (k) In any other manner interfering with re straining, or coercing their employees in the exer cise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Offer immediate and full reinstatement if they have not already done so to Paul Cook Tim othy Priode Garon Sneed Roy Stinson Anthony Velar Mark Glies and Gary Wilkins to their former jobs or if those jobs no longer exist to sub stantially equivalent jobs without prejudice to their seniority or any other rights and privileges previ ously enjoyed and make them along with David Robertson Donald Meritt Jr and Robert Pruitt whole for any loss of earnings and other benefits they may have suffered as a result of the discnmi nation against them in the manner set forth in the remedy section of this decision and restore Mentt and Pruitt to their seniority and other rights and privileges (b) Remove from their files any references to the unlawful discharges or refusals to recall the above employees and notify each of them in writing that this has been done and that the unlawful discharges or refusals to recall will not be used against them in any way (c) Give effect to the terms and provisions of the collective bargaining agreements between the Re spondents and the Union pertaining to allowing union representatives access to the Respondents vessels and using the union hiring hall as pre scribed in the remedy section of this decision (d) Make whole all employees and would be em ployees in the units found appropriate here for losses of earnings and other benefits suffered by reason of the Respondents unlawful repudiation of the contracts hiring hall provisions with backpay and interest computed in the manner prescribed in the remedy section of this decision (e) On request bargain in good faith with the Union before making unilateral changes with re spect to the access and hiring hall provisions em bodied in the most recent collective bargaining agreements between the parties (f) Furnish union patrolmen aboard the Respond ents vessels with crew lists on request and furnish the Union with the weekly boat payroll records for the period from about January 1 to October 3 1980 the job titles of all unit employees a list of names of all unit employees terminated since De cember 31 1979 with their termination dates and the reasons and with employment cards of unit employees (g) Preserve and on request make available to the Board or its agents for examination and copy ing all payroll records social security payment records timecards personnel records and reports and all other records necessary to analyze and de termine the amount of backpay due under the terms of this Order AMERICAN COMMERCIAL LINES (h) Post at their Jeffersonville Indiana facility and at all their other facilities where unit employ ees are normally employed, including vessels copies of the attached notice marked Appen dix 92 Copies of the notice on forms provided by the Regional Director for Region 9 after being signed by the Respondents authorized representa tive shall be posted by the Respondent immediate ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply B The National Labor Relations Board orders that Respondent MAC Towing Inc Jeffersonville Indiana its officers agents, successors and assigns shall 1 Cease and desist from (a) Informing employees that other employees have been discharged because they were union members (b) Discouraging membership and activities in the Seafarers International Union of North Amer ica Atlantic Gulf Lakes and Inland Waters Dis trict AFL-CIO or any other labor organization by discharging or in any other manner discriminat ing against employees in regard to their hire or tenure of employment or any term or condition of employment (c) In any like or related manner interfering with restraining or coercing employees in the ex ercise of their rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Offer immediate and full reinstatement if it has not already done so to Johnny Hallmark Edward Pittman and Richard Hitchcock to their former jobs or if those jobs no longer exist to sub stantially equivalent jobs without prejudice to their seniority or any other rights and privileges previ ously enjoyed and make them whole for any loss of earnings and other benefits they may have suf fered as a result of the discrimination against them in the manner set forth in the remedy section of this decision 98 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al 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 1089 (b) Remove from its files any references to the unlawful discharges of the above employees and notify each of them in wnting that this has been done and that the discharges will not be used against them in any way (c) Preserve and on request make available to the Board or its agents for examination and copy ing all payroll records social security payment records timecards personnel records and reports and all other records necessary to analyze and de termine the amount of backpay due under the terms of this Order (d) Post at its Jeffersonville Indiana facility and at all of its other facilities where its employees are normally employed including vessels copies of the attached notice marked Appendix 93 Copies of the notice on forms provided by the Regional Di rector for Region 9 after being signed by the Re spondent s authorized representative shall be posted by the Respondent immediately upon re ceipt and maintained for 60 consecutive days in conspicuous places including all places where no tices to employees are customarily posted Reason able steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply IT IS FURTHER ORDERED that the third amended consolidated complaint and all other complaints and amendments thereto against the Respondents and Respondent MAC are dismissed insofar as they allege unfair labor practices not specifically found in this decision and that all allegations alleging ACL and NTC and Respondent Union violated the Act are dismissed in their entirety 93 See fn 92 supra APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa tives of their own choice 1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT prohibit union representatives from talking to those of you whom they represent WE WILL NOT engage in surveillance of employ ees union meetings WE WILL NOT threaten you with discharge for not accepting the Companies contract proposals WE WILL NOT intimidate you by throwing your union contracts in the trash and commenting that is what we think of you and the Union WE WILL NOT threaten you with enforcing break periods because you assert your contractual rights WE WILL NOT interrogate you about union meet ings WE WILL NOT promise you that without the Union you would receive as extra compensation the money paid by the Companies to the joint union/management training school WE WILL NOT discharge refuse to recall or oth erwise discriminate against any of you for support ing the Seafarers International Union of North America Atlantic Gulf Lakes and Inland Waters District AFL-CIO or any other labor organiza tion WE WILL NOT unilaterally repudiate and refuse to abide by provisions in the collective bargaining agreements with the Seafarers International Union of North America Atlantic Gulf Lakes and Inland Waters District AFL-CIO allowing union representatives access to our vessels and requiring our use of the union hiring hall with respect to our employees in the following three separate bargain ing units All head deckhands deckhands cooks trainee engineers and tankermen employed by ITC River Division on boats owned operated or chartered on a bareboat basis by it exclud ing professional employees guards and super visors as defined in the Act and all other em ployees This recognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidiary or affiliated companies All engineers and assistant engineers em ployed by ITC River Division on boats owned operated or chartered on a bareboat basis by it excluding professional employees guards and supervisors as defined in the Act and all other employees This recognition shall not apply to bareboat charters to other opera tors nor to crews of towboats of subsidiary or affiliated companies All chief engineers head deckhands deck hands cooks trainee engineers and tankermen employed by ITC Canal Division on boats owned operated or chartered on a bareboat basis by it excluding professional employees guards and supervisors as defined in the Act and all other employees This recognition shall not apply to other employees This recognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidi ary or affiliated companies WE WILL NOT refuse to bargain in good faith with the Union before making unilateral changes with respect to the access or hiring hall provisions embodied in our most recent collective bargaining agreements with the Union WE WILL NOT refuse to bargain with the Union by delaying in furnishing or refusing to furnish it with relevant and necessary information for the Union s proper execution of its bargaining obliga tions in representing our unit employees WE WILL NOT in any other manner interfere with restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL offer immediate and full reinstatement if we have not already done so to Paul Cook Tim othy Priode Garon Sneed Roy Stinson Anthony Velar Mark Glies and Gary Wilkins to their former jobs or if those jobs no longer exist to sub stantially equivalent jobs without prejudice to their seniority or any other rights and privileges previ ously enjoyed and make them along with David Robertson Donald Meritt Jr and Robert Pruitt whole for any loss of earnings and other benefits they may have suffered as a result of the discrimi nation against them in the manner set forth in the remedy section of this decision and restore Meritt and Pruitt to their seniority and other rights and privileges WE WILL remove from our files any references to the unlawful discharges or refusals to recall the employees named above and we will notify each of them in writing that this has been done and that the unlawful discharges or refusals to recall will not be used against them in any way WE WILL give effect to the terms and provisions of the collective bargaining agreements pertaining to allowing union representatives access to our ves sels and using the union hiring hall subject to his torical exceptions pertaining to our use of the union hiring hall as delineated in arbitra,ion awards dated December 2 1980 and June 29 1983 and in the National Labor Relations Board s Decision and Order issued in this case AMERICAN COMMERCIAL LINES 1091 WE WILL make whole our employees and would be employees in the bargaining units de scribed above for losses of earnings and other bene fits suffered by reason of our failure to comply with the hiring hall provisions of our most recent collective bargaining agreements with the Union less any net interim earnings plus interest WE WILL on request bargain in good faith with the Union before making unilateral changes with respect to the access and hiring hall provisions em bodied in the most recent collective bargaining agreements with the Union WE WILL furnish union patrolmen aboard our vessels with crew lists on request and furnish the Union with the weekly boat payroll records for the period from about January 1 1980 to October 3 1980 the job titles of all unit employees a list of names of all unit employees terminated since De cember 31 1979 with their termination dates and the reasons and with employment cards of unit employees AMERICAN COMMERCIAL BARGE LINE COMPANY APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer immediate and full reinstatement it we have not already done so to Johnny Hall mark Edward Pittman and Richard Hitchcock to their former jobs or if those jobs no longer exist to substantially equivalent jobs without prejudice to their seniority or any other rights and privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharges, less any net interim earnings plus interest WE WILL remove from our files any references to the unlawful discharges of the employees named above and WE WILL notify each of them in writing that this has been done and that the discharges will not be used against them in any way MAC TOWING INC Raymond D l'veusch Esq James R Schwartz Esq Donald B Hordes Esq Peyton Hariston Esq and Joan M Baker Esq for the General Counsel Vance D Miller Esq and R Michael Lowenbaum Esq (Moller Talent Kuelthau & Welch) of St Louis Mis sours and David W Miller Esq (Roberts Ryder Rogers & Neighbours) of Indianapolis Indiana for the Respondent Companies and Charging Parties Hebert L Segal Esq Irwin H Cutler Jr Esq and Al phonso 0 Neal White Esq (Segal Isenberg Sales & Stewart) of Louisville Kentucky for the Respondent Union and Charging Party Fred 0 Towe Esq (Anderson and' Towe) of Indianapolis Indiana for the Association The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT inform you that your fellow em ployees have been discharged because they were anion members WE WILL NOT discharge or otherwise discrimi nate against any of you for supporting the Seafar ers International Union of North America Atlan tic Gulf Lakes and Inland Waters District AFL- CIO or any other labor organization WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act DECISION STATEMENT OF THE CASES THOMAS D JOHNSTON Administrative Law Judge These consolidated cases were heard at Louisville Ken tucky during the period from May 5 1981 through Jan uary 15 1982 1 pursuant to charges and amended charges tiled by the Seafarers International Union of North America Atlantic Gulf Lakes and Inland Waters District AFL-CIO (the Union or the Respondent Union) including a second amended charge2 in Case 9- CA-14657 on February 11 1980 a charge in Case 9- CA-14867 on February 7 1980 a charge in Case 9-CA- 15511 on June 27 1980 a charge in Case 9-CA-15923 on October 6 1980 a charge in Case 9-CA-16016 on October 30 1980 a charge in Case 9-CA-16040 on No vember 5 1980 a first amended charge3 in Case 9-CA- 16225 on February 19 1981 a charge in Case 9-CA- 16255 on December 31 1980 a charge in Case 9-CA- 16277 on January 6 1981 a first amended charge4 in 'The specific hearing dates were May 5-8 June 2-5 July 20-24 August 11-14 and 24-28 September 28-October 1 November 2-5 and 16-19 November 30-December 4 December 14-17 1981 and January 11-15 1982 2 The original charge was filed on December 14 1979 s The original charge was filed on December 19 1980 The original charge was filed on January 14 1981 1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Case 9-CA-16321 on January 21 1981 a charge in Case 9-CA-16373 on January 26 1981 a charge in Case 9- CA- 16495 on February 26 1981 and a charge in Case 9-CA-16648 on April 6 1981 against American Com mercial Lines Inc (ACL) and its subsidiaries American Commercial Barge Line Company (ACBL) American Barge Line Inc (ABL) Southern Ohio Towing Compa ny Inc (SOT) Northern Towing Company (NTC) Inland Tugs Co (River Division and Canal Division) (ITC) and Mac Towing Inc (MAC)5 and based on charges filed by ACBL ITC ABL SOT and NTC in Case 9-CB-4584 on May 23 1980 and by ACBL and ITC in Case 9-CB-4707 on September 22 1980 and pur suant to a third amended consolidated complaint issued on July 31 1980 in Cases 9-CA-14657 9-CA-14867 and 9-CA-15511 and complaints issued in Case 9-CA- 15923 on December 16 1980 in Case 9-CA-16016 on December 12 1980 in Case 9-CA-16040 on March 23 1981 in Case 9-CA-16225 on March 26 1981 in Case 9-CA-16255 on March 16 1981 in Cases 9-CA-16277 and 9-CA-16321 on February 27 1981 in Case 9-CA- 16373 on March 18 1981 in Case 9-CA-16495 on March 26 1981 in Case 9-CA-16648 on April 23 1981 in Case 9-CB-4584 on July 15 1980 and in Case 9-CB- 4707 on November 6 1980 The third amended consolidated complaint and these other complaints as amended at the hearing allege ACL and its subsidiaries ACBL ABL SOT NTC ITC or MAC violated Section 8(a)(1) (2) (3) and (5) of the Na tional Labor Relations Act (the Act) by engaging in un lawful statements interrogations intimidations threats and surveillance maintained and enforced a rule prohib iting union agents from boarding vessels refused to fur nish information aided assisted and supported the Inland Rivermen s Association of the United States (the Association) and adopted its collective bargaining agree ment and deducted dues and initiation fees discharged refused to hire or recall employees maintained a dis cnminatory nonreferral list refused to recognize and bargain with the Union as the exclusive representative of MAC s employees as an accretion to the unit refused to bargain in good faith with the Union refused to furnish certain information to the Union made unilateral changes and repudiated certain provisions of the collec tive bargaining agreements and allege the Respondent Union violated Section 8(b)(3) of the Act by refusing to furnish certain information to ACBL ITC ABL SOT or NTC 6 Respondents ACL ACBL ITC ABL SOT and NTC and Respondent Union in timely filed answers some of which were amended prior to or at the hearing to these complaints and amended complaints They denied having violated the Act as alleged and asserted certain affirmative defenses The issues involved are whether Respondents ACL ACBL ITC ABL SOT NTC and MAC violated Sec tion 8(a)(1) (2) (3) and (5) of the Act and whether Re 5 The charge in Case 9-CA-16255 was only against ACL and subsidi apes ABL ITC and MAC 8 Certain other allegations were withdrawn or dismissed at the hearing spondent Union violated Section 8(b)(3) of the Act as a] leged On the entire record' in these cases8 and from my ob servations of the witnesses and after due consideration of the briefs and supplemental bnefs9 filed by the par ties 10 I make the following I" FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENTS ACL a Delaware corporation with an office and place of business located at Houston Texas is engaged as a holding company providing administrative and financial services to its wholly owed subsidiaries ACBL ABL SOT NTC ITC and MAC These subsidiaries which are Delaware corporations except for MAC which is a Louisiana corporation had offices located at Jefferson ville Indiana and except for NTC were engaged in the interstate transportation of freight and commodities throughout the United States On or about May 1 1979 NTC ceased operations and employing employees and its employees and equipment were transferred to SOT pursuant to an agreement between NTC and the Union which had contracts covering the unit employees On or about April 1 1980 SOT and ABL ceased their corpo rate existence and employing any employees or operating any vessels and their employees who were represented by the Union and their boats were merged into the oper ation of ITC River Division During the 12 month period preceding July 31 1980 a representative period ACL in the course of its operations derived gross reve nues in excess of $50 000 for providing services to its subsidiaries ACBL ABL SOT ITC and MAC who in the course of their operations each performed services valued in excess of $50 000 outside the State of Indiana ACL ACBL ABL SOT ITC and MAC are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act 12 Respondents ACBL ITC and MAC filed motions to strike certain portions of the original briefs filed by the General Counsel and the Union alleging those portions were contrary to the record or positions taken at the hearing or outside the scope of the pleadings to which the Union filed a response Having duly considered the motions and the response the motions are denied However to the extent the briefs might refer to matters not alleged or supported by the record such matters will be con sidered 8 The Union filed a motion on March 1 1982 opposed by Respondents ACBL ITC and MAC requesting that official notice be taken of the record in Case 9-UC-174 or in the alternative that the record in the in stant cases be reopened to receive the record into evidence Because the parties at the hearing stipulated to the record in Case 9-UC-174 whereby that record is already part of the record in the instant cases and the Board s findings in that case as discussed infra are relied on the motion is unnecessary and is denied 9 The length of this decision precludes discussion of all the arguments advanced by the parties in their briefs and supplemental briefs in support of their positions however such arguments have been fully considered io The General Counsel did not file a supplemental brief li Unless otherwise indicated the findings are based on the pleadings admissions stipulations and undisputed evidence contained in the record which I credit 12 No evidence was presented to establish NTC was an employer en gaged in commerce within the meaning of Sec 2(6) and (7) of the Act during the times material which was denied and no evidence was prof fered to show NTC engaged in any unlawful conduct Accordingly the Continued AMERICAN COMMERCIAL LINES 1093 II THE LABOR ORGANIZATIONS INVOLVED Seafarers International Union of North America At ]antic Gulf Lakes and Inland Waters District AFL-CIO and the Inland Rivermen s Association of the United States are labor organizations within the meaning of Sec Lion 2(5) of the Act III THE UNFAIR LABOR PRACTICES A Bargaining Units The pleadings allege the following employees of ACBL ITC and MAC constitute an appropriate unit All employees employed on boats owned operated chartered on a bareboat basis by [Respondents ITC and MAC] including engineers assistant engineers engineer trainees lead deckhands deckhands and cooks excluding all professional employees guards and supervisors as defined in the Act Respondents ACL ACBL ITC ABL and SOT deny such allegations and assert the appropriate units are those contained in the collective bargaining agreements among ABL SOT and ITC and the Union The Union contends the only appropriate unit consists of a fleetwide unit of all employees excluding profes sional employees guards and supervisors as defined in the Act on boats owned operated or chartered on a bareboat basis by ACBL ITC ABL SOT NTC and MAC ABL SOT and ITC River Division each had separate contracts with the Union for unlicensed employees as follows basis by the Company when the crews on board such boats are employees of and on the payroll of the Company This recognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidiary or affiliated companies The Company will not charter in boats other than its subsidiary or affiliated company boats for the pur pose of laying up boats covered by this Agreement Other than subsidiary or affiliated companies fully founded boats of other companies may not be char tered for more than (90) days ITC Canal Division had a contract with the Union covering the following employees The Company recognizes the Union as the sole bar gaining agent for all Chief Engineers Head Deck hands Deckhands Cooks Trainee Engineers and Tankerman (hereinafter referred to as Employees ) on boats owned operated or chartered on a bare boat basis by the Company when crews on board such boats are employees of and on the payroll of the Company This recogition [sic] shall not apply to bareboat charters to other operators nor to crews of towboats of subsidiary or affiliated companies The Company will not charter in boats other than its subsidiary or affiliated company boats for the purpose of laying up boats covered by this Agree ment Other than subsidiary or affiliated companies fully founded boats of other companies may not be chartered for more than (90) days MAC had a contract with the Association covering the following unit employees The Company recognizes the Union as the sole bar gaining agent for head deckhands deckhands cooks trainee engineers and tankermen (herein re ferred to as Employees ) on boats owned operat ed or chartered on a bareboat basis by the Compa ny when the crews on board such boats are em ployees of and on the payroll of the Company This recognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidi ary or affiliated companies The Company will not charter in boats other than its subsidiary or affili ated company boats for the purpose of laying up boats covered by this Agreement Other than sub sidiary or affiliated companies fully founded boats of other companies may not be chartered for more than ninety (90) days ABL SOT and ITC River Division each had separate contracts with the Union for licensed employees as fol lows The Company recognizes the Union as the sole bar gaining agent for all engineers and assistant engi neers (hereinafter referred to as Employees ) on boats owned operated or chartered on a bareboat allegations that NTC violated Sec 8(a)(1) (2) (3) and (5) of the Act are dismissed All deckhands utility deckhands cooks trainee en gineers and assistant engineers on all vessels owned operated or chartered by the Company The Board in its decision in Mac Towing 262 NLRB 1331 (1982) 13 of which I have taken official notice found that MAC constitutes a separate appropriate unit for purposes of collective bargaining and is not an accre tion to any existing unit that ACL14 and ACBL is net 13 On February 3 1983 the Board denied a motion filed by the Union on August 20 1982 for reconsideration of its decision Because ACL as found by the Board has never had a collective bar gaining agreement with the Union or the Association it is not an employ er of employees the Union or the Association represents or seeks to rep resent it does not provide operational control over its subsidiary compa vies it does not receive reports concerning labor relations or approve the hiring and firing of management personnel of its subsidiaries or the bene fit levels negotiated by them with the Union or the Association and ab sence as here any evidence to show ACL engaged in any of the unfair labor practices alleged the allegations that ACL violated Sec 8 (a)(1) (2) (3) and (5) of the Act are dismissed is ACBL as found by the Board is the lead company in the bargain ing group and solicits customers advertises and contracts with custom ers It employs the towboat captains relief captains steermen pilots port captains and port engineers for the companies operating barge equip ment namely ABL ITC SOT and MAC ACBL also employs crew dispatchers who provide crews for ABL ITC SOT and MAC and barge dispatchers who coordinate the assignments and movement of barges by the companies as well as other companies Further ACBL Continued 1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ther of which ever had collective bargaining agreements with the Union or the Association are not employers of employees the Union or the Association represents or seeks to represent and rejected the Union s request for a merger of engineering units and deck employee units and a further merger of separate employer units into a fleetwide unit as being issues outside the proper scope of a unit classification proceeding Regarding these merger requests by the Union the Board further stated that the evidence revealed the Union was seeking to achieve by the way of unit clarification what it was unable to achieve at the bargaining table and noted that the parties had voluntarily agreed to bargain within the framework of separate bargaining units and that the Board without a showing of changed circumstances would not interfere with the bargaining relationship The Board further stated the engineer and deck department employees exist ed in separate bargaining units in separate companies when the collective bargaining agreements we-e entered into and that the evidence indicated there had been no change in the function of the employees Based on the Board s findings in Mac Towing the last collective bargaining agreements between ABL SOT and ITC and the Union 16 and that SOT and ABL about April 1 1980 ceased their corporate existence and employing any employees or operating any vessels and their employees represented by the Union and their boats were merged into the operation of ITC River Division to which the Union as discussed infra voiced no objec tion when informed I am persuaded and find contrary to the positions of the General Counsel and the Union but consistent with the positions of ACL ACBL ABL SOT ITC and MAC that the following three described units constitute units appropriate for the purposes of col lective bargaining within the meaning of Section 9(b) of the Act and at all times material the Union has been and is now the exclusive representative of the employees of ITC which now includes ABL ana SOT as a result of the merger in the separate units All head deckhands deckhands cooks trainee en gineers and tankermen employed by ITC River Di vision on boats owned operated or chartered on a bareboat basis by it excluding professional employ ees guards and supervisors as defined in the Act and all other employees This recognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidiary or affiliated compa vies All engineers and assistant engineers employed by ITC River Division on boats owned operated or chartered on a bareboat basis by it excluding pro fessional employees guards and supervisors as de fined in the Act and all other employees This rec provides personnel labor relations and industrial relations to ABL ITC SOT and MAC and administrative services such as payroll billing and collections is Agreements between parties on the appropriateness of the unit have long been accepted by the Board which gives them broad latitude in reaching such agreements that will not be disturbed absent a showing that exclusion or inclusion of certain employees contravenes the Act or established Board policy Harvey Russell 145 NLRB 1486 1488 (1964) ognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidi ary or affiliated companies All chief engineers head deckhands deckhands cooks trainee engineers and tankermen employed by ITC Canal Division on boats owned operated or chartered on a bareboat basis by it excluding pro fessional employees guards and supervisors as de fined in the Act and all other employees This rec ognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidi ary or affiliated companies 17 Although the pleadings allege rather than the three separate units found appropriate a single unit and in elude besides ITC both ACBL and MAC without an alternative unit being pled I am not persuaded as urged by Respondents ACBL ITC and MAC in their supple mental brief that this is a fatal error and therefore those various allegations contained in the complaints and amended complaints based on the unit alleged must be dismissed Tne three units found appropriate are the same as those units agreed o'i and contained in the par ties separate collective bargaining agreements Not only were the parties obligated to bargain in such units but they in fact as discussed infra did engage in collective bargaining regarding these separate units even though during the course of negotiations they both sought changes in the existing units B Unlawful Statements Interrogations Threats Intimidations and Surveillance Evidence as discussed in the following sections was proffered to establish that ABL SOT ITC 18 and ACBL acting for and on benalf of ABL SOT and ITC (the Respondents) and MAC engaged in certain unlaw ful conduct under the Act Union Patrolman David Carter testified about the first part of November 197919 he and Patrolman Bobby Ste vens attempted to board the vessel W 0 Watson docked near Biloxi Mississippi to talk to the crew The captain whose first name was Jesse or Jessup 20 told them they were not allowed on his boat or allowed to talk to the crewmembers and ordered the crewmembers who were present to go inside the boat On insisting they had a right to talk to the crew the captain questioned what could they do if he pulled the vessel away whereupon he then instructed a crewman to untie the vessel The vessel then left the dock and proceeded about 2000 feet out in the bay where some barges were located Based on Patrolman Carter s undisputed testimony which I credited I find about the first part of November i r The Board found that no engineers work on the towboats or harbor boats in the ITC Canal Division is ABL SOT and ITC admit they operate as a single integrated enter pnse with common ownership management supervision facilities and centralized control of labor relations and constitute a single and /or joint employers of their respective employees is All dates referred to are in 1979 unless otherwise stated 20 The pleadings allege the captain was Jesit Billiot He last worked for Respondents on November 16 1980 and did not testify AMERICAN COMMERCIAL LINES the captain21 of the W 0 Watson informed Patrolmen Carter and Stevens in the presence of employees repie sented by the Union that they could not talk to the em ployees and caused the vessel to be moved so the union patrolmen could not talk to them Michael Smith testified that on September 1 while at the dock at Louisville Kentucky to board the vessel Bill Corneal Captain Jack Bullard told him they were start ing a new company MAC and the Union was the Asso ciation which he said would be a much better one than the one they had at the time Although a couple of men were standing nearby Smith did not know whether they overheard the conversation Captain Jack Bullard who is now vice president of operations for ACBL denied making such statements However he said he did explain to several crewmen that MAC was a new company that they had recently pur chased and they had also acquired a new union with that company when they purchased it and the Bill Corneal would be operated by MAC under its contract with the Association I credit Bullard whom I find was a more credible wit ness than Smith and find Bullard did not make such statements as alleged Further Bullard s explanation is also consistent with the purchase of MAC which had a contract with the Association Patrolman Carter stated that about November 17 he and Patrolman Stevens attempted to board the vessel Rusty Barrilleaux which was at a lock on the river However Captain Joe Dragon informed them that as of the previous night they could not go on the boats They then stood as suggested by Dragon on a public barge beside the vessel and talked to the crewmembers who were standing on the bow of the vessel about 5 to 6 feet away According to Carter while they were discussing union matters with the crewmembers Captain Dragon stood right beside him within a distance of 1 or 2 feet the entire time while the captain of the vessel Jim Hall was standing with the crewmembers After talking to the crewmembers about 10 or 15 minutes Dragon said they would have to cut it short because of work to be done Captain Hall disputed Carter s testimony about he and Dragon being present while the union patrolmen were talking to crewmembers and stated he and Dragon were aboard the vessel having a conversation between them selves about 20 or 35 feet from them and he denied Dragon instructed the employees to return to work I credit Carters undisputed testimony concerning his conversations with Dragon who did not testify Howev er to the extent Carter s testimony conflicts with Hall s I credit Hall rather than Carter whose testimony during the hearing was both inconsistent and contradictory Because Captain Dragon was not present with Carter when he talked to the crew of the Rusty Barrilleaux but rather was engaged in his own conversation with Hall a considerable distance from them I find Dragon did not engage in surveillance of their meeting as alleged Carter further stated that same day Captain Dragon denied his request to board the vessel James E Philpott 21 All captains and pilots employed by Respondents and MAC are su pervisors under the Act 1095 which was located in the lock about 200 feet away to talk to the crewmembers but told Stevens and him they could talk to them from the lock wall Carter and Ste vens then remained on the lock wall while they talked to three crewmembers who were sitting on the side of the barge attached to the vessel When Mark Glies a crew man aboard the vessel mentioned a complaint about pen alty time either the captain or the pilot of the vessel who had come out on the barge with the crewmembers interrupted and said Glies should not have overtime for that giving his reason Captain Dragon told the man to shut up because they had nothing to do with it During the conversation with the crewmembers Captain Dragon stood right beside Carter and Stevens the entire time Mark Glies corroborated Carter s testimony about Captain Dragon and the captain of the vessel Pat Rone who did not testify being present and further stated Rone had informed the crewmembers that the union rep resentatives could not board the boat but would be al lowed to stand on the lock wall and talk from there to the crewmembers on the boat I credit the undisputed testimony of Carter and Glies and find that about November 17 Captains Dragon and Rorie by refusing Union Patrolmen Carter and Stevens their contractual right discussed infra to board the vessel thereby forcing them to meet with crewmembers openly and then remaining present right beside them while they discussed union matters with the crewmem bers engaged in surveillance of the union meeting of crewmembers of the vessel James E Philpott Thomas Williams a crewman aboard the vessel Jack D Wofford stated that on December 622 Captain Howard Evans called the crew together and told him and two other crewmembers the Company would give them a $10 raise plus their insurance benefits with more to come later but said if no one wanted to work for that he could always pull the boat over and let him off Captain Evans denied making such statements but stated at the direction of Port Agent Walt Morgan he ex plained to the crew he had heard rumors the Union might strike when its contract was up and told them if they wanted to work everybody had a job and if they did not want to work without a contract they were wel come to get off I credit Williams rather than Evans and find that on December 6 Captain Evans informed crewmembers in cluding Thomas Williams that if they did not accept Re spondents wage and benefit proposals they could be put off the boat Besides my observations of the witnesses in discrediting Evans I do not find plausible his explanation for telling crewmembers they were welcome to get off the boat absent as here any threats by crewmembers to leave Roy Stinson a crewmeniber and union delegate aboard the vessel Dan Hogan testified that on October 7 he asked Captain James Hamm at the request of Dave Robertson who was present why Robertson had been fired Hamm using profanity told him it was none of his 22 Respondents records reflect Williams got off the vessel in Decem her 8 and r turned in January 1980 1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD business Later that day Stinson returned and showed Hamm a copy of the union contract which indicated a union delegate had reason to ask whereupon Hamm took the contract threw it into the trash can and said again using profanity that that was what he thought of Stinson and his Union When he again asked the reason for Robertson s discharge Hamm ordered him out of the wheelhouse Captain Hamm while acknowledging Stinson asked why he had fired Robertson denied such incident oc curred However I discredit Hamm whose testimony was both inconsistent and contradicted by Respondents own witness and find on October 7 Captain Hamm in timidated Stinson by taking the union contract Stinson was using and throwing it into the trash can stating that was what he thought of Stinson and the Union Howev er I find no evidence to further show Captain Hamm told an employee if he attempted to call a union repre sentative to assist in the adjustment of a grievance he would put him off the vessels or threatened to fire all deckhands if the Union s delegate persisted in his efforts to enforce the contract as alleged Patrolman Kenneth McGregor testified that on Octo ber 18 he held a meeting aboard the vessel Thruston B Morton with approximately five crewmen in the crews lounge During this meeting which he said lasted about an hour pending contract proposals were discussed and Captain Wendy Howard came in sat next to where he was standing and remained about 45 minutes and made comments about things being discussed McGregor ac knowledged he did not ask Howard to leave and under cross examination admitted he had previously testified in Federal court that this meeting had lasted about 2 or 2 1/2 hours and Howard had remained there for about 1 1 /2 hours Captain Howard denied such incident occurred Wil Liam Ashworth a crewmember denied Captain Howard was present however he acknowledged he only attend ed the meeting himself for about 15 or 20 minutes Crew member Jim McKim also stated he did recall Captain Howard being present Even if McGregor s testimony was credited inasmuch as he was not restricted in this instance as to where he could conduct his meeting and made no request to Cap tarn Howard to leave but instead permitted him to par ticipate without objection which would have encour aged his presence I do not find under these circum stances Captain Howard engaged in unlawful surveil lance of this meeting as alleged Thomas Presley a crewmember employed by MAC aboard the vessel Bill Carneal stated in late September Captain Gordon Jackson informed him and a couple of deckhands when they were going into Cairo Illinois to stick together because there might be trouble Later that day on asking Jackson what was going to happen when they got to Cairo Jackson repeated they should stick to gether and told him to keep a cheater bar23 with him and to stay together in twos because the SIU was jealous because they were getting more pay and it did not cost 23 This is a steel pipe about 3 feet long used to build tows them as much to get in the Union and there might be trouble Captain Jackson acknowledged talking to Presley about whether there would be trouble when they got to Cairo and telling him the boys should stick together However he said he told Presley he did not think there was going to be any trouble and denied mentioning the cheater bar Jackson did state earlier that day on hearing several crewmembers including Presley discussing the Union he told them that they had their number His ex planation at the hearing for this remark was that it was said jokingly and was prompted by overhearing steers man Ernie Dodson mention to crewmembers earlier that day that they had gone to Pickering where a couple of union people said they were going to knock his teeth down his throat 24 I credit Presley instead of Jackson and find that in late September Captain Jackson told Thomas Presley to arm himself because there might be trouble with the Union because it was jealous about the amounts of their pay and initiation fee Apart from my observations of the witnesses in discrediting Jackson his own statements about employees sticking together and the Union having their number tend to support Presley s version Captain James Philpott initially refused to allow crew members aboard the vessel Dennis Hendrix which was in drydock for repairs to leave the vessel to go to town Following complaints to the union representatives who visited the vessel about the first or second week of August Phtlpott after consulting with Captain Bullard gave them permission to do so Crewman Terry Reyn olds testified the next day Philpott told him if he wanted to play contract he could play contract with them and said from then on he would get a 15 minute break at 9 am and after that he had better be working 25 Later that day Philpott told him he was sorry he was going to have to make it rough on him for a while but until they got this contract stuff out of their system he was going to make it hard on them for a couple of weeks and he knew what happened yesterday was not Reynolds fault but was Don Merttt s26 and that Meritt was just a trou blemaker anyway Captain Philpott acknowledged telling Reynolds who he said was the person the union representative told him had complained that if they were going to live by part of the contract they would have to live by all of it and said he was not going to be able to give them those extra breaks he had been giving them anymore Philpott said he told Reynolds he aimed to live by all the contract but thought it made it harder on the men and him to live by the letter of the contract He denied referring to Meritt as a troublemaker Based on the testimony of Reynolds which I credit and Phtlpott s own admissions in part I find about early 24 Dodson did not testify However Thomas Samples Sr a crewman aboard the Bill Carneal said he was present when Dodson had an argu ment with two persons who had identified themselves as union represent atives during which this threat was made 25 According to Philpott employees were supposed to have a 15 minute break however his practice on breaks has been lenient 26 Mentt was another employee AMERICAN COMMERCIAL LINES 1097 August Captain Philpott informed Terry Reynolds that employees break periods would be enforced until they got the contract stuff out of their system Mark Glies a crewman aboard the vessel James E Phtlpott stated on November 24 after atending a meeting held with union representatives that day Captain Rone told him he had received a telephone call from the Com pany about a union meeting being held and asked why the meeting had been called what went on at that meet ing and who called it On telling Rone he had called the meeting and suggesting to Rone that he could ask the captain from the vessel Laura McKinney who also was at the meeting Rone said he wanted to know from Glies whereupon he told Rone he did not think it was any of his business Respondents admit Captain Pat Rone about November 24 interrogated an employee aboard the James E Philpott concerning what occurred at a meeting held with the Union s representatives 27 Based on Glies undisputed testimony and Respond ents admission I find that on November 24 Captain Rone interrogated Mark Glies concerning what occurred at a union meeting Johnny Hallmark employed as a cook aboard the vessel Bill Carneal operated by MAC testified the last day he worked on the vessel which was September 11 Joe Stone who was the pilot after being shown Hall mark s union checkoff authorization card told him he was going to put him off the boat and when he signed him off wrote as the reason on his signoff slip S I U Member Stone acknowledged listing this as the reason and tell ing Hallmark to sign off the vessel but denied having any conversation with him I credit Hallmarks testimony which was admitted in part by Stone and further corroborated by Respondents and MAC s own records which list the reason he was put off the vessel was because he was an SIU member and find that on September 11 Pilot Stone informed Hallmark he was putting him off the boat and the reason given to him was because he was an SIU member Gary Wilkins a crewman aboard the vessel Chicago Trader stated that on December 6 he mentioned to the captain who was Bill Sunnier that he belonged to the SIU which he said was a good union with a good school Sunnier then told him he paid so much money into the Union and the Company paid so much money into the Union for the school and if the Union was not in existence Wilkins would automatically get that extra $5 or $10 a day plus the Company would probably take care of him better than a union Captain Sunnler did not testify and I credit Wilkins undisputed testimony and find on December 6 Captain Sunnier informed Wilkins that without the Union em ployees would be paid extra-the money the Company was paying to the Union for the school 28 27 Although Respondents assert in their answer this was cured by vol untary action of Respondents the evidence pertaining to a private settle ment agreement concerning Ghes discharge discussed infra does not support such assertion 28 The statement that the Company would probably take care of Wil kins better than a union was not alleged as a violation Michael Smith a crewman aboard the vessel Bill Car neal operated by MAC stated on September I1 he heard Captain Shelly Swisher tell the cook Johnny Hall mark after seeing a union authorization card Hallmark had signed that Hallmark had to get off the boat because he was SIU Another crewman Thomas Presley cor roborated Smith s testimony Captain Swisher denied telling Hallmark he was fired or in trouble for signing a union checkoff but stated after learning Hallmark had signed for the Union he told Hallmark he was going to transfer him to work on the vessel John Mathews which was a union contracted boat which he did Swisher also said he instructed Pilot Joe Stone to transfer Hallmark because he was an SIU member I credit Michael Smith and Thomas Presley and find about September 11 Captain Swisher informed Hallmark in the presence of Smith and Presley he had to get off the boat because he was SIU This finding apart from my observations of the witnesses is consistent with Swisher s own reason for putting Hallmark off the boat which was because he was a union member However I do not find as further alleged and as specifically denied by Swisher that Swisher also told an employee he was in trouble because he had signed a dues checkoff for the Union Analysis and Conclusions The findings supra establish about the first part of November the captain of the vessel W 0 Watson in formed Union Patrolmen Carter and Stevens in the pres ence of the employees they represented that they could not talk to employees and caused the vessel the employ ees were on to be moved so the union patrolemen could not talk to them about November 17 Captains Joe Dragon and Pat Rone engaged in surveillance of a union meeting of crewmembers of the vessel James E Philpott on December 6 Captain Evans informed crewmembers including Thomas Williams that if they did not accept Respondents wage and benefit proposals they could be put off the boat on October 7 Captain Hamm intimidat ed employee Roy Stinson who was also the union dele gate by taking the union contract Stinson was using and throwing it into the trash can stating that was what he thought of Stinson and the Union in late September Captain Jackson told Presley to arm himself because there might be trouble with the Union during early August Captain Philpott informed Reynolds that employ ees break periods would be enforced until they got the contract stuff out of their systems on November 24 Cap tam Rone interrogated Mark Glies concerning what oc curred at a union meeting on September 11 Pilot Stone informed Hallmark he was being put off the boat and the reason given to him was because he was an SIU member on December 6 Captain Sunnler informed Gary Wilkins that without the Union the employees would be paid extra the money the Company was paying to the Union for the schools and about September 11 Captain Swisher informed Hallmark in the presence of Smith and Presley that he had to get off the boat because he was SIU 1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Section 8(a)(1) of the Act prohibits an employer from interfering with restraining or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act The test applied in determining whether a violation of Section 8(a)(1) of the Act has occurred is whether the employer engaged in conduct which it may reasonably be said tends to interfere with the free exercise of em ployee rights under the Act Electrical Fittings Corp 216 NLRB 1076 (1975) Although management officials may observe public union activity particularly when it occurs on company premises without violating Section 8(a)(1) of the Act this is not applicable when such offs cials do something out of the ordinary Arrow Automotive Industries 258 NLRB 860 (1981) Applying the above test I find Respondents and MAC by their engaging in these acts of interrogation threats surveillance intimidation and statements con cerning their employees just enumerated have interfered with restrained and coerced their employees in the ex ercise of their rights guaranteed in Section 7 of the Act and have thereby violated Section 8(a)(1) of the Act C Respondents and MAC s Alleged Unlawful Aid Assistance and Support to the Association and the Refusal to Bargain Regarding MAC s Employees and Certain Other Allegations Involving MAC MAC a Louisiana corporation as found by the Board was purchased by ACL in August Prior to its purchase MAC s employees were represented by the Association as the exclusive representative of MAC s employees in the following unit All deckhands utility deckhands cooks trainee en gineers and assistant engineers on all vessels owned operated or chartered by the Company MAC also had a collective bargaining agreement with the Association effective from November 1 1978 to Oc tober 31 1981 covering the unit employ ees This collec tive bargaining agreement contained provisions covering working conditions such as wages hours union security a grievance procedure health and safety seniority and vacation time It also provided for the deduction of dues and initiation fees from employees for payment to the Association On purchasing MAC in August the Association was recognized as the exclusive representative of MAC s unit employees who were all retained and the collective bar gaining agreement covering them was voluntarily as sumed and thereafter administered between MAC and the Association Since about August 20 pursuant to the provisions of the collective bargaining agreement moneys for dues and initiation fees have been deducted from the wages of MAC s employees and remitted to the Association The pleadings allege Respondents and MAC violated Section 8(a)(1) and (2) of the Act by rendering unlawful aid assistance and support to the Association by recog razing the Association as the exclusive representative of MAC s employees adopting the collective bargaining agreement with the Association and deducting dues and initiation fees from MAC s employees and remitting them to the Association and violated Section 8(a)(1) and (5) by unlawfully refusing to recognize and bargin with the Union by making unilateral changes refusing to fur nish certain information denying vessel access refusing to use the union hiring hall engaging in bad faith bar gaining and refusing to recognize the Union as the rep resentative of MAC s employees and to apply the collec tive bargaining agreement with the Union to MAC s em ployees These allegations were alleged and premised on MAC being an accretion to the existing bargaining units repre sented by the Union The Board however found that MAC constitutes a separate appropriate unit for collec tive bargaining and is not an accretion to any existing unit and therefore was not a party to any collective bar gaining agreement with the Union These allegations al leging that Respondents and MAC rendered unlawful aid assistance and support to the Association refused to recognize the Union as the representative of MAC s em ployees and refused to apply the collective bargaining agreement with the Union to MAC s employees are without any legal basis to establish a violation of the Act and are dismissed To the extent the pleadings also allege MAC unlawfully refused to recognize and bargain with the Union by making unilateral changes refused to fur nish certain information denied vessel access refused to use the union hiring hall and engaged in bad faith bar gaining these allegations with respect to MAC only also have no legal basis to establish a violation of the Act and are dismissed concerning MAC 29 D Discrimination Against Employees in Their Employment Dale Young Robert Wells Tom Neal Joe Fackler Gary Welch and Daniel Alexander were employed as crewmen aboard the vessel Pat Breen under Captain Mi chael Tinsley and Pilot Dan Hogan According to Young who was the union delegate so crewmen complained to him about the removal of the contract from the crews lounge harassment of the men while working and Tinsley hollering at the men on the bullhorn running the Union down and driving employ ees too hard and not treating them fairly Only Fackler described his complaints which were harassment by Pilot Hogan making remarks about Fackler contacting crabs while aboard the vessel and an assignment by Cap tarn Tinsley over his objections that it was too windy to wash the top of the pilothouse while the vessel was moving Although Fackler who acknowledged perform ing such work previously claimed the assignment was dangerous and two crewmen working with him almost 29 The allegations that the Respondents unlawfully refused to recog raze and bargain with the Union by making unilateral changes refusing to furnish certain information denying vessel access refusing to use the union hiring hall and engaging in bad faith bargaining are discussed infra 'O Although Pilot Rodney Kesler formerly a steersman contended Larry Granthem was the union delegate he acknowledged Granthem was not employed aboard the vessel on June 22 AMERICAN COMMERCIAL LINES 1099 fell off the pilothouse one of them Steersman Kesler disputed this and the other crewman did not testify Young stated on several occasions prior to June 22 he discussed these complaints with Tinsley who told him the Union was not going to represent or help them on any boat problems and he could treat the men as he saw fit When he informed Tinsley that if the problems were not solved the men would contact the Union and file a grievance Tinsley s response was it did not matter be cause they would not be allowed to call the Union and if they did not like the way things were being done they could get off the boat Fackler also said Tinsley in formed him and Young if they did not like the way he ran the boat they could get off and he would get some bums from the streets to replace them Captain Tinsley except for one occasion when Young asked about the contract denied such conversations oc curred Although Young claimed on that occasion Tins ley had informed him that returning the contract would cause too much confusion Tinsley denied it Tinsley s version corroborated by Fackler was he said he did not know where the contract was and his copy was locked in the desk and he did not have a key On June 22 Young stated he asked Tinsley whether they could get together and straighten out some prob lems However Tinsley informed him he was going to run the boat the way he felt and was not worried about the Union or the men filing grievances and said if they did not like the way the situation was being handled for him to go ahead and get off the boat Tinsley denied his request to call the union hall if they did not come to some sort of an agreement about the treatment of the men and remarked he personally did not care about the men but had a set of rules laid down on the boat and if they were not followed they would have to do some thing else Young said he informed Tinsley he would get off the boat whereupon Tinsley began filling out his sig noff slip and he left to pack his things Tinsley whose testimony was corroborated by Kesler who was present acknowledged Young told him he was getting off the boat and requested him to get his signoff slip ready However he explained this occurred after Young complained the deck crew was working too hard and mentioned they were loading coal working around the docks chipping and painting and washing the boat which was too much work and he asked for a work schedule Tinsley denied any knowledge of a work schedule and informed Young the boat had to be cleaned which was part of their regular duties and if Young did not want to work he could get off the boat Later that day Young said that Fackler Welch and he talked to Tinsley and he asked Tinsley whether they could come to some sort of agreement about the prob lems mentioning he did not want to get off the boat be cause it was his home However Tinsley only laughed and refused to speak to him Fackler s version however was that Young asked Tinsley whether he would take it easy on them and show a little respect whereupon Tins ley refused and said if they could not work under his conditions to get off the boat Young then said okay and asked for transportation and told Tinsley they were leav ing According to Fackler earlier that morning several crewmembers had gathered in the crews lounge where Young asked them if they would all go up and talk to the captain about getting more respect and not be put out in dangerous or hazardous working conditions at which time they all agreed to stick with Young even if they had to walk off the boat Tinsley testified that following his first conversation with Young he had a similar conversation with Young when Young returned and again complained about the crew working too hard and requested a work schedule telling him they would get off if something could not be worked out His conversation with other crewmembers however did not occur until they were leaving Young stated that after Fackler Welch and he talked to Tinsley he went below to finish packing at which time Tinsley informed him over the intercom system while he was in his room with two or three other crew members that his signoff slip was ready Although Young testified Tinsley further said it would be just as easy to make up five as it was one Tinsley denied it and said Young s response was everybody was getting off whereupon he said he would get all their signoff slips ready Kesler who said he overheard the conversation corroborated Tinsley Fackler also contradicted Young s testimony by stating it was Young who informed Tinsley to make up the signoff slips for the other crewmembers and said they had all agreed to stick with Young so they all left Tinsley stated that after Young Welch Fackler Alex ander Neal and Wells then came to the wheelhouse (where Young repeated his complaint that they felt they were working too hard and needed the work schedule) he denied there was a work schedule and told them they came there to work and if they wanted to work they could at which time Young said they would all get off whereupon they all signed their signoff slips and left the vessel The vessel at the time was faced up to barges waiting to go through the locks I credit Captain Tinsley whose testimony was cor roborated in part by Kesler rather than Young and Fackler concerning these various conversations Besides my observations of the witnesses in not crediting them not only did Young and Fackler contradict each other s testimony but also Fackler s version tends to support Tinsley Having credited Tinsley I find on June 22 Young Welch Fackler Alexander Neal and Wells together ceased work following complaints by Young that the crew was working too hard and requested a nonexistent work schedule and pursuant to an earlier agreement be tween them they obtained their signoff slips and left the vessel short handed and without being properly relieved Further I find the evidence fails to establish Captain Tinsley told the employees on June 22 he would put them off the boat if they persisted in pressing their griev ances relating to contract violations as alleged The contracts under article V section 1 provide as follows There shall be no strike lockout or stoppage of work while the provisions of this Agreement are in 1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD effect except as otherwise provided in this Agree ment The contracts also provide in the grievance and arbi tration procedures contained in article II section A as follows Except as otherwise provided the Union and the Company agree there shall be no strike or lockout or work stoppage without having first utilized all procedures set forth herein Respondents vice president of labor relations Robert Kilroy in late June or early July pursuant to a request from Union Representative George Vukmir agreed to return these employees to work with the understanding they would do what they were told and complain later However backpay was not discussed and none of them were awarded backpay 31 Wells on June 25 Fackler on July 9 Young on July 18 and Welch on August 13 all returned to work on other vessels Johnny Hallmark was employed by MAC which had a contract with the Association as a cook aboard the vessel Bill Carneal from September 9-11 Prior to boarding the vessel Hallmark signed a union authorization card on September 9 On September 11 as found supra Pilot Joe Stone in formed Hallmark he was being put off the boat and the reason given to him as reflected by his signoff slips signed by Stone was because he was an SIU member Captain Shelly Swisher admitted instructing Stone to transfer Halmark because he was an SIU member and said he also informed Hallmark he was going to be trans ferred to the vessel John Mathews which was an SIU contracted boat He did this after learning from Hall mark he had signed a union card whereupon he consult ed with Captain Bullard who informed him they would have to get Hallmark off the boat and later instructed him to transfer Hallmark to the John Mathews as a cook Respondents and MAC s records reflect Hallmark was transferred to ITC that same day as a deckhand aboard the John Mathews Although Supervisor of Boat Person nel and Payroll Anita Eve said she was instructed by Captain Bullard to treat this as a transfer she acknowl edged the practice in 1979 when employees were trans ferred to vessels operated by different companies of Re spondents their seniority was broken She further ac knowledged Hallmark was no longer considered on MAC s payroll and he lost his seniority with MAC which was credited to his employment with ITC Paul Cook Timothy Priode David Robertson Garon Sneed Roy Stinson and Anthony VeLar were employed as crewmen aboard the vessel Dan Hogan under Captain James Hamm Stinson was also the union delegate and with the per mission of Captain Harold Collins who was Hamm s predecessor had attended a union conference held at Piney Point Maryland just before Hamm took over the vessel about September 30 31 Respondents as part of their defense proffered this agreement to return these employees to work as a private settlement agreement be tween the parties Several crewmen testified concerning discussions each of them had with Hamm about the Union shortly before their terminations Hamm informed Cook the Union was no good except for people who did not want to work He told VeLar their boat in particular and their boats in general would probably be better operated and run with out the Union he was dissatisfied with the way the Union was on the boat and its influence on the crew and thought a union and union delegate on the boat were counterproductive the problems arising were due base cally because the Union was on the boat and problems he had with the crew before were because of something the Union had done Cook Priode and VeLar all said Hamm accused Stinson of being a union instigator Hamm on one occasion also remarked to VeLar that Stinson was stirring up trouble for the Union and told Priode that Stinson was causing trouble According to Stinson after receiving reports from crewmen he asked Hamm whether he had made statements about VeLar being a nigger which sounded like he was forcing him off the boat Hamm using profanity denied it was any of his business and said he did not like hippies democrats or niggers Both Cook and Priode also said Hamm re ferred to VeLar as a nigger Captain Hamm denied making such statements or knowing if Stinson who had previously worked for him was a union delegate However I discredit Hamm for reasons previously given and credit Stinson Pnode Cook and VeLar whom I find were more credible wit nesses On the morning of October 7 Captain Hamm notified lead deckhand Robertson he was going to replace him but he could continue to work in some capacity until his relief arrived His reason was Robertson lacked knowl edge and experiences claiming he had observed him bring out the wrong equipment that day after he had in structed him to get a pump set up and the lock lines out as they approached the lock However Hamm acknowl edged at the time the vessel had already made several trips on the same run going through locks When Stinson questioned Hamm that morning about his reasons for discharging Robertson Hamm as found supra intimidated Stinson by taking the union contract Stinson was using and throwing it into the trash can stat ing that was what he thought of Stinson and the Union Later that day both Priode and VeLar testified that they along with Robertson were called to the pilot house and informed by Hamm that he had talked to Cap tam Bullard who instructed him to fire the whole crew and that they were discharged According to Pnode Hamm said it was his river and what he said went and he had enough of that and did not have to put up with it and could get another crew During the conversation Priode also said Hamm mentioned both the contract and the Union were no good and accused Stinson of being a union instigator Although Priode also claimed Hamm and VeLar argued over Hamm calling VeLar a nigger VeLar who described himself as being upset denied knowing what Robertson or Priode discussed and said he did not believe a racial slur was made on that occa lion His recollection was Hamm who he said had talked AMERICAN COMMERCIAL LINES to Roberson and himself early that day about their work mentioned he was upset because they were not following orders and said it was impossible for him to operate a boat with a crew that did not follow orders Both VeLar and Pnode said they then informed other crewmembers they had all been fired Cook who stated Hamm refused his request to talk to Pnode VeLar and Robertson while they were in the pilothouse said on learning from Robertson that he had been fired he noti feed Stinson Stinson whose testimony was corroborated by Cook testified on questioning Hamm about firing Robertson again Hamm told him it was none of his business and he had talked to Captain Bullard and he was firing the whole crew including him His reason was that it was his boat and river and he did not want them on the boat Captain Hamm who said he been advised by Captain Bullard to exercise his judgment 32 acknowledged telling both Robertson and Stinson to get off the boat but claimed VeLar Pnode Sneed and Cook were given a choice and decided to leave His reasons given for put ting Stinson off was because of Stinson s refusal on Pilot Bennett s watch to check the barges for water and report the barge carrying water his refusal to take the pump out and get his lock lines out and his refusal to obey Hamm s orders According to Hamm on the morning of October 7 Pilot Bennett who he relieved on watch in formed him Stinson had not gotten out the lock lines and had refused his request to check the barges claiming he did not check them at night 33 Hamm said then instruct ed Robertson it was an emergency and to get Hamm up and set up the pump Hamm further testified Stinson came to the pilothouse and told him he was off watch and was going back to bed and refused his order to go set up the pump He informed Stinson unless he took the pump out he would have to call his relief However Stinson told him to go ahead and said he might as well call the relief for the rest of the crew because they would go to Later that day Hamm said when Stinson questioned him about relieving Robertson Stinson also told him if he fired Robertson the whole crew would go When Hamm said he mentioned he would have to talk to the crewmembers to see whether they wanted to go Stin son s response was that he did not care how much he talked to them but he had had enough of this crap and Hamm was not going to put him off without money He then informed Stinson that because of what he had told him about neglecting his duties that morning causing them to have a bad order barge that might cost Hamm his own job and because Stinson was trying to incite the crew to get off he was forced to put Stinson off at Sebree According to Hamm Stinson denied Hamm or anyone was going to or was big enough to put him off especially without money Stinson denied having such conversations with either Hamm or Bennett and I credit his denials rather than Hamm or Bennett Apart from my observations of the 32 According to Captain Bullard Hamm consulted with him about two employees being insubordinate and other crewmembers leaving 22 Bennett corroborated Hamm s testimony 1101 witnesses they gave inconsistent testimony and I do not find plausible their claim Stinson a lead deckhand openly refused to obey their orders especially because he was not immediately relieved of his duties as lead deckhand and the captain selects the lead deckhands Concerning the rest of the crew both Bennett and Hamm stated while they were in the pilothouse that day they heard Stinson making remarks to other crewmem bers while sitting at the head of the boat about nobody being big enough to put him off the boat and about his going up and whipping Hamm Cook and Robertson then joined in saying they would take care of Bennett if he said anything Hamm said he then informed the crew members on the loudspeaker not to come up but if they came up one at a time he would talk to them and ask them if they wanted to sign off They then came up indi vidually and he asked then if they would like to stay on the boat and work or if they wanted to follow Stinson whereupon each of them said they did not like what was going on and they were leaving Stinson was the last one to come up and said he was not going to get off the boat without money Hamm who had called the police told Stinson he was putting him off because he was holding up the vessel and they could not allow that to go on Hamm said as Stinson left he heard him tell the other crewmembers they better get their bags and get off and the law was after them Bennett however contrary to Hamm s testimony tes tified when Hamm called down to the crewmembers about coming up he told them to come get their signoff slips one at a time and to get off the boat Both Stinson and Cook denied making such statements or threats as alleged and I credit the testimony of Stin son Pnode Cook and VeLar concerning the discharges of the crew by Hamm rather than Hamm and Bennett for reasons previously given Chief Engineer John Ham presented as a witness by Respondents stated on the afternoon of October 7 the deck crew including Stinson VeLar Cook and other employees were in the gallery with their bags and VeLar asked if he was going with them and said they were getting off the boat and could not work for the man Ham refused Cook Pnode Sneed Stinson VeLar and Robertson then left the vessel on October 7 at Sebree Kentucky These employees were sent letters by Captain Bullard dated October 12 informing them they had been dis charged due to the incident aboard the vessel on October 7 The signoff slips for VeLar and Priode reflect they quit with additional reasons listed that VeLar refused and objected to checking barges and Pnode refused to carry out orders which they both denied Respondents records reflect the crewmembers replac ing them aboard the vessel were James Kesterson Kevin McMonigal Jerry Cook and Benton Shaw Kesterson McMonigal and Shaw had all previously signed union checkoff authorization cards 34 24 The contracts contained union security provisions requiring employ ees to become members 1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Subsequent to his discharge Priode wrote a letter to Captain Bullard in which he mentioned he did not know what was happening and now knew he should have stayed but was a victim of circumstances and it was wrong about losing his job when he did not even know what was going on and requested another chance with the Company Although Priode said he later called James Hubert who is Respondents traffic coordinator who told him to write a nice juicy letter contradicting all the statements made and he was sure to go back to work the next few days Humbert denied such conversa tion occurred Robert Ambers Richard Gantley Terry Reynolds Ronnie Thomason and John Wheeler Jr were employed as crewmen aboard the vessel Dennis Hendrix under Captain Rudy York All of them except Thomason who did not testify stated they were union members The Union s patrolman report dated October 12 lists Thoma son as deck delegate On October 31 Ambers was told by the pilot to read a notice posted in the pilothouse and to send other em ployees up to read it According to Ambers this notice which had Captain Bullard s name on it stated SIU dele gates and representatives were not allowed on the boat or company property and also contained other wording he could not recall 35 After sending another crewman up to read it and finishing his shift he informed Captain York he was going to sign off the boat Although he de-iied giving any reason the reason put on his signoff slip part of which Steersman Dennis Durbin wrote at the direction of York was jumped boat because union man can not come on boat Ambers denied discussing this notice with other employees but said one employee told him he had tried to call the Union and they would not let him However after signing off and waiting to leave however he waited with Gantley Reynolds and Wheeler during which time they had a conversation Ambers gave as his reason for leaving was that he wanted to talk to the union representative about his union dues and book and the notice they could not come aboard Both Gantley and Reynolds read the notice that day They described it as being from Captain Bullard stating no union representatives were allowed on company boats or property and hiring would be done through Jefferson ville and Harahan Reynolds asked the pilot what it meant who replied he did not know but said he did not think it meant very much Gantley and Reynolds then discussed the notice among themselves Their discussion was about whether the Company was trying to lock out the Union or throwing out the contract and they decided to leave the vessel According to Gantley the reason was they were union men and he thought the Union was being locked out and they wanted to discuss this with the union repre sentative Reynolds gave that as the reason that they wanted to contact the Union and report the notice Gantley went to the pilothouse and informed Captain York he was getting off Gantley listed on his signoff slip the reason was jumped boat and Steersman Durbin 35 This notice was not offered as evidence added something to the effect it was because the Union could not come York mentioned he did not blame him and gave him a copy of a signoff slip to give to Reyn olds This signoff slip which Reynolds signed had al ready been filled out by someone else and listed the reason as jumped boat because union man can not come on boat After signing off Gantley and Reynolds informed other crewmen in the galley including Ambers James Miracle Wheeler and Thomason about their decision to leave and Thomason mentioned he would join them Wheeler described the notice which he read after learning of it from Reynolds and Gantley as being from Captain Bullard stating no union representatives could come aboard any ACBL boat with or without permis sion from the Company and the deck crew would be hired in the Harahan and Jeffersonville offices Wheeler said on asking York whether it was right or wrong to leave the boat York indicated he had to make up his own mind and it did not matter to him After discussing Reynolds decision to leave with Gantley Wheeler first went to work but little later informed York he would like to sign off and thought it would be wrong to stay on the boat without representation According to Wheeler York said it was fine with him and to go ahead and he wrote on Wheelers slip the reason Wheeler was leaving was due to no union representation Wheeler then talked to Ambers Reynolds and Thomason about the decision to get off and Thomason and Ambers told him that part of their reason was that they did not want to work alone On October 31 Ambers Gantley Reynolds Thoma son and Wheeler got off the vessel Dennis Hendrix The work being performed at the time they left was building tow James Miracle the only crewmember who remained aboard the vessel also said Gantley tried to persuade him to leave by telling him everybody else was going into town to have drinks and party which he refused 36 Ambers Gantley and Reynolds all acknowledged they left the vessel short handed and without being prop erly relieved or with the captains permission Wheeler also did not give the required notice and was not proper ly relieved leaving the vessel short handed Neither Captain York nor the pilot testified and the above findings are based on the testimony of Gantley Ambers Wheeler and Reynolds which I credit Ambers Gantley Reynolds and Wheeler all acknowl edged at the time they left the vessel they were aware of the contract procedures Captain James Philpott testified on the evening of Oc tober 31 as he boarded the Dennis Hendrix to relieve Captain York he met Gantley Wheeler Ambers and a couple of other crewmen On asking them where they were going and what they were doing Gantley informed him they were getting off the boat to talk to the Union When Gantley pursuant to his inquiry told him that 36 Assuming Gantley made such statement to Miracle I find it had nothing to do with the reasons the crewmen actually left AMERICAN COMMERCIAL LINES they had not been properly relieved he suggested they return to work but they refused Within a period of several days or couple of weeks after they left the vessel Ambers Reynolds and Wheel er stated they all received letters from Respondents in forming them they had been discharged for strike activi ty The Union filed grievances dated November 1 with Respondents on behalf of Wheeler Reynolds Thomason and Ambers alleging they were denied union representa tion under the contract According to Captain Bullard about October 31 there was a change whereby union agents would be allowed on boats only to administer the contract and process grievances and they must be accompanied by a company representative higher than the captain or pilot assigned to the vessel and that he had so notified the vessel cap tains Mark Glies was employed by Respondents as a deck hand on the vessel James E Philpott under Captain Pat Rone About November 17 as found supra both Cap tarn Rone and Captain Dragon engaged in unlawful sur veillance of a union meeting Glies attended with other crewmembers On November 24 Glies stated he attended a meeting held at the Mid Stream Fueling Service in Mobile Ala bama between several union representatives and about five or six crewmen of various vessels This meeting was arranged after Glees who felt the contract was being violated had discussed it with other crewmembers During this meeting he discussed his grievances which included how Captain Rone operated his boat and union representatives also handed out literature According to Glies a captain from Respondents vessel Laura McKin ney came in after the meeting started and remained present until it ended On Glees return to work that day Captain Rone as found supra unlawfully interrogated Glies concerning what occurred at the union meeting whereupon he informed Rone he did not think it was any of his business Glies further testified after making this statement Rone pulled out some papers wrote a receipt put $20 on the table and told him to take it or leave it On asking Rone whether he was kicking him off the boat Rone informed him that was what he was doing About that time the pilot came in and Rone asked the pilot why he had just pulled the boat away from the dock when the union rep resentatives showed up and that would have relieved the whole situation The pilot however told Rone it was their people and they should be allowed to talk to them Rone then told Glies to get off the boat and refused to put the reason on the signoff slip telling Glies he did not have to give him a reason Captain Rone did not testify and I credit Glees undisputed testimony Respondents records reflect Glees was subsequently employed as a deckhand aboard the vessel Tom Frazier from December 2 to 17 and a check was made out to him for $189 57 dated December 19 which was cashed 1103 A memorandum reflects this was for 7 days pay and in settlement of a grievance presented by the Union 37 Union Attorney Cutler in a letter to Respondents vice president Kilroy dated December 17 objected to the settlement unless Glees was given a letter of apology and the Company published to crewmembers a promise it would not remove employees from boats because they refused to respond to interrogations regarding union ac tivity Glees stated he last worked for Respodents on Decem ber 17 Edward Pittman and Richard Hitchcock were em ployed as deckhands by MAC aboard the vessel Sue Hol ston from November 28 to December 3 under Captain Nicholas Macaluso Cortez was the pilot and the only other deckhand was Hubert Daniels Hitchcock a recent graduate of the Harry Lundeberg School of Seamanship (the Lundeberg School)38 at Piney Point Maryland was a union member while Pitt man did not belong to a union On boarding the vessel Hitchcock and Pittman said Macaluso asked them which one was from Piney Point and when informed it was Hitchcock he assigned Hitch cock to the watch of 12 hours on and 12 hours off and Pittman to the watch of 6 hours on and 6 hours off Pitt man stated Macaluso denied his suggestion later to switch watches with Hitchcock to allow Hitchcock to get more rest Macaluso denied these assertions or any knowledge about Hitchcock attending the school and stated he had left it up to them which shift they would pull I credit Pittman and Hitchcock rather than Macaluso Besides my observations of the witnesses I do not find Macaluso s testimony persuasive Pittman stated Macaluso would call Hitchcock Piney Point and further testified he had about 20 conversa tions with Macaluso about the Union during which Ma caluso repeatedly remarked the Seafarers could not work did not know what they were doing and were not worth a hill of beans Macaluso also said he could never work with people who came from the Union they were never any good and he did not like them at all Pittman who had three brothers in the Union said on three or four occasions Macaluso mentioned he could not under stand why they were in the Union and Pittman was not and would question Pittman whether he was sure he was not in it which Pittman kept denying Macaluso denied calling Hitchcock Piney Point On being asked whether he ever talked to Pittman and Hitchcock about the Union however he replied if he did he did not recall it Again I credit Pittman rather than Macaluso who did not specifically deny having such conversations with Pittman about the Union On December 3 the vessel was engaged in picking up barges at Texas City Texas to make up tow Although attempting to pull one barge from the bank with the vessel one of the lines attached to the barge broke Ac 37 Respondents proffered this evidence of Glees reinstatement and pay as being a private settlement agreement 38 This is a school operated by the Union and funded in part by contri buttons from employers including Respondents to train seamen 1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cording to Pittman when the vessel came forward it rammed the barge that he and Hitchcock were on dent ing it and breaking one of the face wires When Maca luso then told them he was going behind the barge and instructed them to face him up to the barge they told him the face wires were broken and they had to fix them Macaluso then ordered them to the pilothouse where he stuck his finger in front of Pittman s nose dnv ing him back cussed him and told them to pack their bags and get off the boat Macaluso then pulled the vessel over to the dock and let them off Hitchcock who corroborated Pittman said Macaluso also told him they did not know what they were doing Macaluso denied ramming or denting the barge Ac cording to him after facing up to the barge and Daniels resecunng the lines he instructed Daniels Pittman and Hitchcock who were on the vessel to stand clear while he used the weight of the vessel to pull the barge out and as the barge started toward him he maneuvered the vessel to slap the barge which caused the head of the barge to pick up giving him steerage and control over it He described this as a normal procedure which was cor roborated by Daniels Macaluso who denied discharging Pittman and Hitch cock stated when this happened they came up to the head of the vessel and complained to him that hitting the barge was dangerous and he was trying to kill them and did not know how to operate the vessel whereupon he told them if they did not like the way he was operating it they could leave anytime they wished Although they said something he denied hearing what they said Macaluso stated shortly after they placed the barge with the other barges and were building tow he was in formed by Daniels that Hitchcock and Pittman had left the vessel with their luggage He denied seeing them leave or that they had given notice or signed off Daniels who corroborated Macaluso said as he saw them leaving he asked why they were quitting and they replied the captain was crazy Daniels however who was not present when they were discharged did not tes tify they told him they had quit and offered no explana tion concerning why he would have asked them why they were quitting which I discredit For reasons previously given I credit Pittman and Hitchcock rather than Macaluso concerning their dis charges After they left Pittman called Respondents crew dis patcher Gary Waguespack at Harahan Louisiana and informed him they had been fired and requested trans portation expenses Waguespack refused and told them the captain said they had quit According to Wague spack on informing Pittman the captain had agreed to take them back 39 Pittman said they did not want to go back on the boat but they wanted transportation Gary Wilkins was employed by Respondents from March 1976 until December 7 The last vessel he worked on was the Chicago Trader under Captain Bill Sunnier for a period of approximately 9 days Although he had 39 Macaluso said he told Waguespack he would agree as long as they understood he was the captain of the vessel worked on the vessel on prior occasions for about a year this was the first time he worked under Sunnier The findings supra establish that on December 6 during a conversation between Wilkins and Sunnier in which Wilkins said he belonged to the SIU and de scribed it as being a good union with a good school Sunnier unlawfully informed Wilkins that without the Union employees would be paid extra the money the Company was paying to the Union for the school Sunnier also told him the Company would probably take care of him better than a union After Wilkins responded he did not mind paying as good as the Union was Sunnier mentioned he had worked under the Inland Boatmen s Union which is now part of the Union but did not want any part of it and had quit his job when the Union attempted to collect his dues and initiation fee This conversation occurred in the late evening The next morning Wilkins reported to work at 6 a in Shortly thereafter while getting out the lock lines in preparation for passing through a lock Sunnier began criticizing Wilkins over the bullhorn about not doing his work which Wilkins denied A little later Wilkins men tioned to Sunnier that they had had harmony on the vessel and questioned him about why he was mad Sunnier again accused him of not doing his job which Wilkins denied On entering the lock Sunnier made no response to position reports given to him by Wilkins Sunnier however over the loudspeaker again accused Wilkins of not doing his job and said he did not like the way he did it Wilkins reminded Sunnier that he was the captain and it was his boat and if he did not like the way he was doing his job he could call for Wilkins relief or whatever he wanted to do Sunnier then asked Wilkins if he wanted to get off the boat which Wilkins denied saying he was not requesting any relief Howev er when Wilkins asked Sunnier whether he wanted him to get off Sunnier informed Wilkins that he would be getting off anyway Wilkins then told Sunnier he could put him off right then if he wanted to whereupon Sunnier said to consider it done About 8 30 that morning after the vessel passed through the lock Wilkins asked Sunnier about his morn ing duties whereupon Sunnier told him not to worry about it because he would be getting off at Lemont Illi nois When asked for a reason Sunnier told Wilkins he did not know what he was doing and accused Wilkins of having a bad attitude Wilkins told Sunnier they were not good reasons reminding Sunnier he had already complimented him before on his work After repeating Wilkins had a bad attitude which Wilkins denied Sunnier then said some of the crew did not like him which Wilkins also disputed Sunnier then informed Wil kips that he was getting off and for Wilkins to consider himself off at Lemont That day December 7 Wilkins got off the boat at Lemont Illinois Prior to that day Wilkins denied Sunnier had ever ex pressed dissatisfaction with his work About December 3 Wilkins who is a lead deckhand said Sunnier had told him he liked the way he did his job and that he was AMERICAN COMMERCIAL LINES looking for a good crewmember and had him in mind to be a regular on the boat if he wanted to Captain Sunnier did not testify and my findings are based on the undisputed testimony of Wilkins which I credit Wilkins acknowledged on two prior occasions before that trip he had quit the vessel leaving it short handed and had also been discharged on a couple of occasions Following his termination Wilkins stated for about 3 weeks beginning December 10 he contacted Respond ents office in Jeffersonville almost every other day and sometimes every day for a job usually speaking to James Humbert who was then crew dispatcher but is now traf fic coordinator Humbert denied receiving such calls from Wilkins and Supervisor Eve stated her telephone log of incoming calls during that period did not show Wilkins had called However she acknowledged all calls might not be logged such as when the person calling did not have a telephone I credit Wilkins rather than Humbert Donald Meritt Jr was employed by Respondents from August 1978 until September 5 The last vessel he worked on was the Dennis Hendrix under Captain James Philpott and Relief Captain Rudy York He made five trips aboard this vessel from mid January through Sep tember 5 Mentt a union member was elected about August 28 or 29 following a visit by two union repre sentatives aboard the vessel to attend a union conference at Piney Point Maryland to discuss a new contract On September 2 Meritt testified Captain York called him to the wheelhouse and asked him whether he was going to the conference When he replied he was York told him if he did he would no longer have a job there and mentioned he had heard this but did not say from whom 40 Although York denied making such statements I credit Mentt who I find was a more credible witness Meritt whose trip aboard the vessel ended on Septem ber 5 attended the union conference which began Sep tember 10 and lasted about a week This was during Meritt s scheduled time off On September 21 Meritt notified Crew Dispatcher James Humbert that he was ready to return to work aboard the Dennis Hendrix Although Humbert first indi cated he should be able to get him back on it in a couple of days and told him to call back when Mentt talked to Humbert on September 25 Humbert informed him he no longer had a job on the Dennis Hendrix Although Humbert who said he had received a mes sage from the boat that they did not want Meritt back promised Meritt pursuant to his inquiry to find out the reason Humbert acknowledged he made no attempt to do so According to Mentt Humbert also told him there were no other jobs available Captain Philpott who was aware of Meritt s selection to attend the union conference acknowledged he noti fled crew dispatch that he did not want Meritt on his vessel His reasons were Meritt had charged the Compa 40 Respondents records reflect that a number of other unit employees who attended the union conference held at a Piney Point returned to work 1105 ny transportation expenses from Helena Arkansas to his home in Memphis Tennessee and because he had brought liquor on board when he returned to the vessel on that occasion About mid August Meritt with Philpott s permission had left the vessel at Helena Arkansas and traveled to Memphis Tennessee to spend the night with his family Transportation which was not authorized for payment was provided by the Helena Fuel & Harbor Service Inc which subsequently billed Respondents $75 Al though Meritt denied charging it and said he offered to pay the driver who refused he did acknowledge signing a paper for the driver which he described as being blank at the time On his return to the vessel Meritt admitted he brought back a bottle of liquor which was against company rules to celebrate another crewmember s birth day Philpott said while the boat was in drydock for repairs from about August 20 to 26 he learned for certain that Meritt had brought the liquor on board when Meritt ad mitted it and apologized whereupon he informed Meritt he knew better and it was against the rules and he did not want him doing it According to Philpott after August 26 he learned about the transportation charge from Captain Bullard who told him not to let it happen again The next day he told Meritt he should not have done it and knew better and should not do it again Al though Meritt offered to pay for the transportation he refused Meritt s offer Philpott acknowledged a couple of days after learning of the liquor incident he prompted Meritt from deck hand to lead deckhand Meritt testified that between September 21 and Octo ber 24 he had approximately 20 conversations with Re spondents crew dispatchers about returning to work but was not rehired On October 13 Humbert informed him he had openings for a deckhand on the vessel D Ray Miller and for a lead deckhand on the vessel Henry D However when Humbert asked whether he had money to get to Cairo he told him he did not know and would have to check because his money was running low The next day on attempting several times to call Humbert as requested to let him know the telephone was busy On October 21 crew dispatcher Kevin Graviss asked Meritt whether he was interested in catching the vessel Joe Bobzien On replying he was Graviss told him to call back in a couple of days and he would give him an esti mated time of arrival on the vessel However after call mg back twice as directed and being instructed each time by Graviss to call back again with the last day being given as October 27 Meritt said he took a temporary job as a special representative with the Union on October 27 which lasted until about March 13 1980 41 Mentt ac knowledged he did not request a leave of absence or notify Respondents about taking the position with the Union 41 Respondents payroll records for the vessel Joe Bobzien and the testi mony of Supervisor Eve reflect during the period from October 21 to 29 a lead deckhand got off the vessel on October 27 and one got on October 29 and deckhands got on and off the vessel on October 29 1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On March 11 Meritt stated that on notifying Graviss he was ready to return to work Graviss informed him there were no jobs available and to call back in 2 days On calling back in 2 days he had a similar conversation with Graviss On April 14 when Mentt called back again Graviss told him there were several jobs but he would have to look at the board and to call back that afternoon On calling back that afternoon Graviss in formed Meritt there was no longer a position available for him at ACBL Traffic Coordinator Humbert who was also aware Meritt had attended the union conference acknowledged Mentz called about 15 or 20 times between mid Septem ber to mid October However he said Mentt wanted to return to the Dennis Hendrix although he told Mentt they had other jobs Humbert also acknowledged when jobs on the vessels D Ray Miller and Henry D were mentioned Meritt said he would have to check his money first However when Meritt called back Hum bert said he told him the jobs were filled Although Meritt acknowledged the Dennis Hendrix was discussed in various conversations he had with crew dispatchers Humbert and Graviss and he thought that was his regular boat and he should be returned to it he denied he limited his request to return to work solely to that vessel Not only does his undisputed testimony con cerning conversations with Graviss 42 which I credit es tablish that but also Humbert himself contends he dis cussed other jobs with Meritt which Mentt indicated he would consider During the period Meritt was seeking to be rehired Respondents were hiring other unit employees Following an arbitration award issued in late August 1980 Respondent Attorney Miller sent Union Attorney Cutler a letter dated August 29 1980 offering Meritt im mediate reinstatement and full seniority and requested Cutler to have Meritt contact crew dispatch for assign ment Mentt stated he then contacted Vice President Kilroy about the offer 43 whereupon Kilroy offered him a posi tion on the vessel Jack Bullard and said crew dispatch would call him that afternoon and give him an arrival time on board the vessel However he did not tell Kilroy whether he would accept it but said he would call him back Mentt did not take the job His reason was his father had broken his leg and he was in Texas trying to help out the family Although other job offers s ere subsequently discussed between Mentt and crew dispatchers Tonja Haney and Supervisor Eve they oc curred outside the alleged discriminatory period 44 Mentt filed a lawsuit under the Jones Act for an injury incurred aboard the vessel Dennis Hendrix This lawsuit was subsequently settled and Meritt signed a re lease on June 6 1980 42 Graviss did not testify 42 This conversation was placed by Mentt as occurring several weeks prior to an October 24 1980 conversation with Crew Dispatcher Tonja Haney 44 The period of alleged discrimination again t Mertt was from about September 21 1979 to September 29 1980 on which date the General Counsel stated Mentz was offered and declined a job with Respondents William Allen was employed by Respondents from June 1976 to about mid May and held positions of deck hand trainee engineer and utility tankerman His union activities included belonging to the Union attending two union conferences and serving as a union delegate aboard the vessel Dan Hogan Allen last worked for the ITC Canal Division aboard the vessel Dan Hogan as a utility tankerman until about May 23 when he got off the vessel after being properly relieved About a week or two later he stated he in formed Rosemary Dockery45 he wanted to take a leave of absence for personal reasons without specifying what they were She informed him she would tell Superintend ent Breen who was also in charge of the engineering de partment Dockery denied Allen mentioned taking a leave of absence but stated he told her he was going to work for a construction company in Arkansas for the summer about which she advised Breen who corroborat ed her testimony I credit Dockery and Breen rather than Allen Apart from my observations of the witnesses Allen s testimony was contradictory Article V section 5 of the contracts provides for leaves of absence for up to 3 months which can be ex tended for like periods However they require a written agreement between Respondents and the Union and their use for employment purposes elsewhere is prohibited Allen acknowledged he did not file a written request for a leave of absence or contact anyone else about it About early September Allen after working full time that summer for a construction company in Arkansas contacted Dockery about returning to work This was the procedure he had use since 19'8 when he wanted to return to work although on occasion he said he contact ed Breen and usually was able to board a vessel within a week According to Allen Dockery said there would be a boat in about 2 days however a few minutes later a union representative contacted him about attending a union conference to be held at Piney Point Maryland from about September 5 to 15 to discuss contracts That same day he said he contacted both Dockery and Breen 45 Since 1979 Dockery has served as secretary for Superintendent of Boat Maintenance Maurice Breen Her duties have included performing secretarial work such as filing typing and answering the telephone Ad ditionally she dispatches engineers which involves keeping records of when engineers get on and off vessels and when they are scheduled to return and informs them when and where to board the vessel based on available transportation the location of the vessels and convenience of the engineers Whenever engineers are due to return to work either they contact her or she contacts them If an engineer is regularly employed on a vessel Breen will inform her and she tells him when and where he can board it For those engineers not regularly employed aboard a vessel Breen instructs her where to assign them Should engineers object to as signments or if emergencies requiring the use of engineers before they are due to return apse Breen makes such assignments himself Dockery has nothing to do with interviewing applicants discipline discharging or promotions which are handled by Breen When pay problems arse she checks her records and contacts crew dispatch about their records and then instructs the payroll department to handle them Based on the foregoing duties and responsibilities I find contrary to the General Counsel s assertion that the evidence is insufficient to estab lish Dockery is an agent of Respondents under the Act to hold Respond ents responsible for her conduct AMERICAN COMMERCIAL LINES 1107 about going to the union conference and Breen said it was okay and to call him when he returned 46 Allen stated on calling Dockery the day after he re turned from the union conference she informed him she could not put him on a boat and he would have to talk to Breen who was not in his office at the time because Allen had been off so long Dockery acknowledged telling Allen when he had called about a job that he would have to speak to Breen who was not in because Allen had been gone for such a long time However she denied telling him there would be a boat in about 2 days and both Dockery and Breen denied Allen mentioned to them he was going to a union conference According to them when Allen called Dockery told Breen who informed her he did not want to ship Allen again because he did not have any openings and he was not completely satisfied with Allen s ability Dockery did say a couple of weeks later when Allen called about a job he mentioned he had just returned from Piney Point where there had been a mistake in his rating however she denied mentioning this to Breen I credit Dockery and Breen rather than Allen for reasons previously given Allen stated he called again the next day and on ap proximately 20 other occasions up until Thanksgiving but was informed each time by Dockery that Breen was not in the office Although he requested Dockery to have Breen call him and left a telephone number where he could be reached Breen never called According to Dockery Allen only called a total of three times about a job during which she informed him Breen was out She did promise Allen she would give Breen his message to call which she did Breen acknowl edged getting the message but admitted he never called Allen About October Dockery said Allen told her she was going to work for another company as a chief engineer and asked for a letter with his service record which she sent him dated October 18 Allen acknowledged asking her for a copy of such a letter which reflects he had worked as a deckhand utility tankerman and trainee en gineer Breen explained without denial that on two occasions he had informed Allen he was not satisified with his work The first occasion was when Allen was a utility tankerman on the vessel Dan Hogan and the last time was in 1978 when Allen was a trainee engineer on the vessel Charles F Detmar No specifices were given and Breen acknowledged Allen was never disciplined nor were any warnings placed in his file and that Allen had been shipped out on other vessels several times after wards Dockery explained no utility tankermen have been shipped since August and the position no longer exists The Union notified Respondents by letter dated No vember 5 giving notice of its intent to grieve on behalf of Allen from September 20 until his eventual rehire stat 46 On cross-examination Allen acknowledged he had given two signed statements earlier about this which reflect that he had but one converse tion rather than two with Dockery that day and neither statement men honed any discussion with Breen on that occasion ing Allen had made repeated attempts to secure reassign ment Robert Pruitt began working for Respondents in July 1977 and worked as a deckhand and lead deckhand aboard various vessels in 1977 1978 and 1979 except during 1978 when he was employed elsewhere From July 31 to August 24 he was employed as a lead deck hand aboard the vessel Louis Enlow under Captain McDonald and Relief Captain Mike Gore and got off the vessel because the regular crewmember returned While serving on the vessel in August Pruitt a member of the Union was selected by the Union to attend a union conference to be held at Piney Point Maryland from about September 10 to 15 to discuss a new contract with Respondents About a week before getting off the vessel Pruitt said he informed McDonald and Gore he was going to attend the union conference and pursuant to their inquiry told them what it was about McDonald did not deny having such a conversation and Gore did not testify A couple of days after getting off the vessel Pruitt stated he informed crew dispatcher Humbert he was going to the union conference and wanted another job when he returned in a couple of weeks When Humbert told him he might not be able to go back to work if he went to the union conference he informed Humbert he was already supposed to go and was going and would call Humbert when he returned Humbert who did not specifically deny making such statements acknowledged that on one occasion in the summer of 1979 which he thought occurred before Pruitt boarded the Louis Enlow Pruitt called him about work He said however he did not place Pruitt on a vessel because he was a poor worker although he gave Pruitt no reason I credit Pruitt whom I find was a more credible wit ness than Humbert whose testimony was conflicting and unpersuasive and find that about August 26 Humbert threatened Pruitt that he might not be able to go back to work if he went to the union conference Pruitt attended the union conference Beginning the Monday following his return which would have been September 17 up until about November 2 Pruitt credibly testified without denial he called Respondents office at least three times a week asking Supervisor Eve or Hum bert about a job during which they would tell him there were no boats they had boats tied up and did not need anyone or to call back tomorrow or the next day Pruitt also sent Respondents two telegrams requesting work Humbert sent Pruitt a letter dated October 4 acknowl edging receipt of one of the telegrams from Pruitt that had contained the Union s return address in which he stated he felt confident they could secure a deckhand po sition for Pruitt in the next few days and instructed Pruitt to call crew dispatching for his boarding instruc tions Humbert however at the hearing explained he sent this letter pursuant to instructions from Vice Presi dent Kilroy who indicated he felt the Union was trying to set them up for not putting Pruitt back to work Hum bert acknowledged he did not assign Pruitt a job and had 1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD no intention of doing so when he wrote the letter His reason expressed at the hearing but never conveyed to Pruitt was that he made the decision in the summer of 1979 not to ship Pruitt because he was a poor worker He explained he based this on Pruitt s employment card and a memorandum from Captain Gore Those portions of the employment card relied on supported in part by signoff slips reflect that while Pruitt worked aboard the vessel Charles F Detmar he quit on July 31 1977 leav ing the boat short handed and on December 3 1977 he was discharged and while employed aboard the vessel Frank Rader he was put off the vessel on March 27 for drinking 47 Respondents for those two incidents involving the Charles F Detmar had filed a complaint on December 12 1977 against Pruitt with the Seafarers Appeals Board which also alleged his discharge was for neglect of duties and responsibilities and a deliberate refusal to obey orders from the vessel s master This resulted in Pruitt being found guilty as charged and placed on pro bation from January 12 to July 12 1978 The memorandum from Gore dated August 25 which Humbert stated he relied on implied Pruitt took certain items from the vessel Louis Enlow when he left criti cized Pruitt s work habits and attitudes accused Pruitt of stirring up ill feelings and bad morale among the crew members and arguing with the pilot and recommended Pruitt not be reemployed on any company boat Gore did not testify and Humbert admitted he did not discuss this with Pruitt or recall discussing it with Gore and no evidence was proffered to support Gore s accusa tions On November 2 Pruitt who was also registered at the union hiring hall through which he had always obtained his jobs with Respondents previously obtained a job through the Union as a deckhand aboard Respondents vessel Floyd H Blaske Warren Henry has never worked for Respondents In about October he applied for employment at the Louisi ana Dock Company48 located at Harahan Louisiana He informed the lady he talked to there on about five occa sions he wanted to fill out an application for a cook s job However she informed him they were not doing any hiring and she was not taking applications but if he wanted to put in an application for a cooks job he would have to go to Louisville Kentucky The last time he talked to her she gave him a Louisiana Dock Compa ny employment application form along with a self ad dressed return envelope Henry had someone to fill it out for him which he signed This application dated No vember 9 lists his address and telephone number and re flects he formerly worked for the Marine Cook Stewards Union (MCS) in San Francisco described on the form as a seafaring union and that he had 20 years deep sea ex penence with MCS Henry mailed this form in the envelope furnished however he did not know to which company it was ad 47 The last entry on the employment card was do not rehire and contained an April 16 date No evidence was proffered to show Pruitt was dunking on that occasion 48 This company is not a respondent dressed but thought the location was Harahan Louisi ana Henry denied receiving any response to his application and admitted he did not go to Louisville Kentucky to apply for work as suggested or contact the Louisiana Dock Company again Less than 2 months later he ac quired a job with another company working aboard a tanker and was gone for about 5 months Respondents hourly payroll coordinator Martha Brown who is the custodian of payroll records at Re spondents Canal Division in Harahan Louisiana denied that in 1979 or 1980 any cooks worked out of Harahan and said the only job classifications sent out were deck hands and lead deckhands Union Port Agent Pat Pills worth acknowledged the Canal Division boats did not customarily have cooks Supervisor Eve denied Respondents received job ap plications from Harahan or hired employees through them which office ships for the Canal Division She also denied any job applications could be found for Henry in Respondents records Respondents records reflect during the period Sep tember through December approximately 477 job apple cations were received from persons seeking jobs in vari ous categories including cooks and Respondents Jeffer sonville office hired approximately 154 new unit employ ees without calling or attempting to call the union hiring hall Bruce Miller who had never worked for Respondents previously testified about the latter part of October he called Respondents office asked Supervisor Eve about his chances of becoming a deckhand and mentioned his prior experience as a shrimper and that he had worked for American Commercial Terminals 49 During this con versation Eve asked him whether he belonged to a union and which one whereupon he told her he was a member of the UIW She said she would put his name on a crew list but it was more on a first come first serve basis and the person who bothered her the most was most likely to get a job Miller stated from then through February 1980 he first called the office once a day until later when he called three or four times a week The majority of the time he spoke with Eve and on other occasions with another crew dispatcher asking whether they had anything going out and each time they informed him they did not Miller testified on November 8 he went to Respond ents Jeffersonville office where he filled out an employ ment application form entitled American Commercial Barge Line Company and affiliated companies This form dated that same day lists as prior employers shrimper Louisiana Dock and Labor Hall Construction After completing this form he showed it to Eve and in formed her he was the guy who had been calling for a couple of weeks She looked at the application and then said he was not acceptable as a union member 50 because 49 Miller had previously worked for American Commercial Terminals for approximately 6 weeks up until March when he was also a member of and shop steward for the UIW which is a union affiliate 50 The application makes no reference to Miller being a union member AMERICAN COMMERCIAL LINES 1109 ACBL was not hiring union members and told him he was on the crew list and to call back at 11 am and 4 p in everyday Miller also stated dunng December and January 1980 he went to the Respondents office about 15 times and talked to Eve or a man in the crew dispatch office about a job However after giving his name they would look at their sheets and tell him they did not have anything Under cross examination Miller acknowledged giving a statement before a notary public in which he placed his conversation with Eve dunng which he said he was asked about his prior employment and union member ship as occurring in March He also admitted he had never worked for Louisiana Dock as appears on his em ployment application explaining that American Commer cial Terminals had a common entrance with it at that lo cation Supervisor Eve testified her only contact with Miller occurred when she called Miller as she did other job ap plicants and informed him of a meeting to be held that he should attend if he was interested in going to work for Respondents During this meeting held in November for applicants who wanted to work for Respondents which she attended Eve stated that Bob Cook who pre sided over the meeting informed the applicants if they did not have river experience they would have to attend the academy discussed infra before they could be hired Miller complained he should not have to because of his shrimp boat experience and when Cook insisted that he would have to Miller said he would not and left Miller acknowledged attending the meeting and telling them he was not going to go to the school and walking out He said he also complained to Eve he was qualified enough to be a deckhand and could not see paying to attend the academy Eve gave as the reasons Miller was not hired was be cause of his behavior at the meeting and his refusal to go to the academy I credit Eve who I find was a more credible witness than Miller concerning these various conversations Be sides from my observations of the witnesses Miller s tes timony was both contradictory and inconsistent For in stance if as Miller claimed Eve had told him he was not acceptable as a union member because they were not hiring union members left unexplained was why she would have also told him he was on the crew list and to call back everyday Dale Wilkert who was a union member and attended the Lundeberg School initially applied for work with Respondents on November 7 following his graduation from that school He filled out an application form at Respondents office that day in Jeffersonville Indiana and gave it to the receptionist The application which lists a California address does not reflect he attended the school or had any prior experience in the field of tow boat operations The next several days Wilkert accompanied by three other persons went to the office and informed the recep tionist they were seeking jobs On Friday November 9 the receptionist gave Wilkert who asked whether there was someone he could talk to a telephone number to call which he did Wilkert stated on advising this person whose name was Kevin that he and three friends were all from the SIU and they were seeking jobs as deckhands on company towboats Kevin told him they were not hiring at the time and he was not sure when they would be hiring On cross examination however Wilkert on being confronted with a statement Wilkert had written at the time admitted Kevin told him to call back the next Thursday which would have been No vember 15 On Monday and Tuesday November 12 and 13 Wil kert returned to the office but had not further contact with Kevin That Tuesday evening Wilkert who had been staying at a hotel returned home to California He did not contact Kevin on November 15 as instructed nor did he have any further contact with Respondents Phillip Macklin was employed by Respondents for sev eral years prior to his discharge on October 20 1980 He held various positions including deckhand lead deck hand and trainee engineer and effective December 11 he was promoted to assistant engineer His union activities consisted of belonging to the Union serving as a union delegate aboard the vessel Harry Mack attending a union precontract conference held at Piney Point Maryland in September wearing a union T shirt while seving aboard the vessel Frank Rader under Captain Donham and walking the union picket line during the strike from July 14 until about September 1980 Macklin also attended the Lundeberg School to im prove his engineering skills After his return from the school Superintendent Breen who had completed cer tarn papers for Macklin to attend asked him how he liked it While serving aboard the vessel Wilbur Mills Macklin credibly testified without denial that Captain Bill Single tary informed the crew the evening of December 31 which was after the day the contract expired that the SIU was not representing their Company anymore and they could stay and ride on the vessel under company rules or if they wanted to stay with the SIU they would make arrangements to get them off at the next port Macklin last worked aboard the vessel Frank Rader from October 18-20 1980 as an assistant engineer under Captain Donham He had previously worked on that vessel for a week in May 1980 On the day of his discharge Macklin who was sup posed to be on watch starting at 6 a in stated after over sleeping and reporting to the engineroom about 8 15 or 8 20 a in Chief Engineer Grady Simms told him Captain Donham wanted to see him On reporting to Donham Donham informed him he was discharged The reasons Donham gave him were Simms had reported he had to hunt for Macklin on the boat Macklin was constantly in the TV room and he would not perform his duties Macklin denied it and accused Simms of lying Donham also mentioned he had had this problem previously with Macklin while he was on the vessel before which Mack lin also denied Donham then gave Macklin his signoff slip which Macklin refused to sign listing as the reason for his discharge that it was a lack of interest in his 1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD duties Donham also instructed Macklin to call Breen when he left Superintendent Breen who denied knowing Macklin had been a union delegate testified he made the decision to discharge Macklin giving as his reason Macklin was not performing his duties According to Breen that morning Captain Donham told him he was having com plaints from engineers that Macklin was not standing his watch and not doing his assigned job whereupon he in structed Donham to tell Macklin to get his gear get off the boat and to call him Macklin called Breen that day after leaving the vessel and Breen confirmed that he had been discharged Al though Macklin stated Breen gave him the same reasons as Donham Breen testified he told Macklin his work was unsatisfactory and that he had been told by Donham that Donham had received numerous complaints from engineers that Macklin could not be found when he was supposed to be on watch he was not getting up to stand watch when he supposed to and he was not performing his duties in the engineroom According to Breen s un disputed testimony on three prior occasions he had spoken to Macklin about his work The first time oc curred in October 1977 while Macklin was assigned to the vessel Harry Mack at which time he said he told both him and Chief Engineer Dennis Shupe they were not maintaining the boat the way he thought it should be maintained The other two occasions which occurred after Macklin s promotion to assistant engineer followed complaints by Chief Engineer Kelly aboard the vessel Wilbur Mills and by the captain aboard the vessel Dennis Hendrix concerning the conditions the vessels were left in and that Macklin should have done a better job on maintenance and cleanliness and the captain also re quested Macklin not be returned to that vessel Neither Chief Engineer Kelly nor the captain of the Dennis Hendrix testified concerning these alleged com plaints and Macklin stated that on October 3 Breen pur suant to his inquiry had informed him that his work was satisfactory Chief Engineer Simms who is also in the bargaining unit stated that on October 20 he informed Donham about Macklin being late for his watch and said Macklin did not want to work the way they wanted to work and that Macklin had told him he was just there to catch an other boat and the best thing to do was to get Macklin off the boat Simms first stated that this conversation oc curred before Macklin arrived late for his 6 a in watch but later said it occurred after Macklin arrived and apologized for being late Macklin was also late for watch the previous day al though he initially denied it Simms testified when Mack lm did not report as scheduled the previous day he sent Trainee Engineer Madden to wake him up whereupon Madden reported he had However Madden contradict ed Simms testimony by denying he tried to awaken Macklin Donham did not testify and Simms did not testify con cerning any other complaints he made to Donham Trainee Engineer Madden also a unit employee testified concerning complaints about Macklin s work including his causing a pipe on an air compressor to burst and not cleaning up after repairing it not responding to an alarm bell criticizing Simms instructions to Madden on setting generators failing to wash down the walls in the upper engineroom and on one occasion being sent by Simms to find Macklin Macklin except for the incidents of caus ing the pipe on the air compressor to burst which he re paired and on one occasion Simms looking for him but unable to find him which he admitted denied the other incidents of which accused However it was not estab fished such incidents were brought to Donham s atten tion and even Simms who was Madden s supervisor did not testify concerning them Analysis and Conclusions The pleadings allege Respondents discnminatonly ter minated discharged or refused to hire or recall certain employees because of their union or protected concerted activities in violation of Section 8(a)(1) and (3) of the Act which Respondents and Respondent MAC deny and assert various defenses Section 8(a)(1) of the Act is set forth supra Section 8(a)(3) of the Act provides in pertinent part It shall be an unfair labor practice for an employ ee- (3) by discrimination in regard to hire or tenure of employment or any term or condition of employ ment to encourage or discourage membership in any labor organization The law is well established that to discriminate against employees for engaging in union activities violates Sec tion 8(a)(3) and (1) of the Act The assertion of contrac tual rights by employees under contracts concerning them is also a protected concerted activity Concerted work stoppages in protest of employee grievances are protected unless they are unlawful violent in breach of contract or otherwise indefensible Phase Inc 263 NLRB 1398 (1982) Concerted activities in breach of no strike clauses in contracts are unprotected ITT Continen tal Baking Co 253 NLRB 1174 (1981) However strikes in protest against serious unfair labor practices by an em ployer are immunized from general no strike clauses Arlan s Department Store 133 NLRB 802 807 (1961) Direct evidence of discriminatory motivation is not necessary to support a finding of discrimination and such intent may be inferred from the record as a whole Heath International 196 NLRB 318 319 (1972) The General Counsel and the Union contend Respond ents terminated Young Wells Neal Fackler Welch and Alexander because of their union or protected concerted activities while the Respondents assert they voluntarily quit and/or engaged in a work stoppage in violation of the no strike clause The findings supra disprove Young Wells Neal Fackler Welch and Alexander were terminated by Re spondents as alleged and there was no basis established to show they were constructively discharged Rather acting concertedly over what they perceived as com plaints about their working conditions and their insist ence on obtaining a nonexistent work schedule they re AMERICAN COMMERCIAL LINES 1111 quested and received their signoff slips and left the vessel short handed and without being properly relieved Thus by acting together in withholding their services refusing to perform their assigned duties requesting their signoff slips and leaving the vessel instead they either quit their jobs or engaged in an unprotected work stoppage pro hibited by the no strike clause in the contract Under these circumstances I find the Respondents did not vio late Section 8(a)(1) or (3) of the Act by terminating Dale Young Robert Wells Tom Neal Joe Fackler Gary Welch and David Alexander for union or protected con certed activities as alleged 51 Hallmark was discharged from his employment with Respondent MAC after it learned he had signed a union card and the reason given to Hallmark as Respondents and Respondent MAC s records reflect was because he was a union member The fact he was placed aboard an other vessel working for another one of the Respond ents companies and contrary to past practice was given credit for his seniority while employed by Respondent MAC does not detract from finding his discharge from Respondent MAC to be unlawful Therefore I find Re spondent MAC discriminatorily discharged Johnny Hall mark from his employment with it on September 11 be cause of his union membership thereby violating Section 8(a)(3) and (1) of the Act The General Counsel and the Union contend Cook Priode Robertson Sneed Stinson and VeLar were dis charged because of union and protected concerted activi ties including banning together to process or file griev ances and attempting to discuss problems with the cap tarn Respondents assert in their answers employees vol untanly quit and/or engaged in a work stoppage in vio lation of the contract and also contend there were pend ing grievances regarding these employees and Board action should be deferred to the arbitration process Re spondents position at the hearing was Stinson and Rob ertson were discharged for cause while the other em ployees left voluntarily The findings supra establish contrary to Respondents position that on October 7 Captain Hamm discharged Cook Priode Robertson Sneed Stinson and VeLar Although Hamm gave them various reasons such as it was his boat and river what he said went he did not want them on the boat he had had enough of that and did not have to put up with it and could get another crew and he was upset because they were not following orders and it was impossible for him to operate a boat he also told them he had been instructed by Captain Bul lard to fire the entire crew Hamm s claims that Robert son was discharged because of a lack of knowledge and inexperience after he observed Robertson bring out the wrong equipment does not appear plausible especially because lead deckhands like Robertson are selected by the captain and the vessel had already made several trips under Hamm without incident when this alleged incident occurred Hamm s claim that Stinson was insubordinate and incited the crew to leave was discredited 5 Because they were not discriminatorily terminated I do not find it necessary to consider the effects of a settlement agreement proffered by Respondents as a defense The findings also establish during the period immedi ately prior to these employees discharges on October 7 that Hamm in conversations with Cook VeLar Priode Stinson and Robertson not only expressed his dislike for and dissatisfaction with the Union and contended their boat would probably be better run and operated without the Union and accused Stinson of being the union insti gator but also he unlawfully intimidated Stinson who was seeking an explanation for Robertson s initial dis charge by taking Stinson s union contract and throwing it into the trash can stating that was what he thought of Stinson and the Union Having rejected Respondents reasons for discharging Stinson and Robertson and finding that Cook Priode Sneed and VeLar did not quit their jobs as Respondents contend but were discharged along with Stinson and Robertson by Hamm who informed them he was acting on Captain Bullard s instructions to discharge the whole crew and on considering Respondents union animus as established by their unlawful 8(a)(1) conduct found supra as well as Hamm s statements to these employees about the Union as enumerated and considering the timing of their discharges in relation to such statements I am persuaded and find Respondents on October 7 dis criminatorily discharged Paul Cook Timothy Priode David Robertson Garon Sneed Roy Stinson and An thony VeLar because of their union memberships and ac tivities thereby violating Section 8(a)(3) and (1) of the Act and the reasons advanced by Respondents were mere pretexts to conceal the real discriminatory reasons Absent evidence as here to show these employees banned together to file or process grievances or to dis cuss problems with the captain as urged by the General Counsel I do not find evidence to establish they were also discriminatorily discharged for engaging in protect ed concerted activities in violation of Section 8(a)(1) of the Act as alleged The defense asserted by Respondents that the Board should defer to the arbitration process is rejected inas much as the Collyer52 doctrine is not applicable to cases such as here involving violations of Section 8(a)(1) and (3) of the Act See Loomis Courier Service 235 NLRB 534 536 (1978) enf denied on other grounds 595 F 2d 491 (9th Cir 1979) and General American Transportation Corp 228 NLRB 808 (1977) The findings supra establish that on October 31 Ambers Gantley Reynolds Thomason and Wheeler left the vessel Dennis Hendrix without permission or being properly relieved thereby leaving the vessel short handed and they were subsequently notified by Respond ents they had been discharged for strike activity Prior to their leaving the vessel Respondents had posted a notice about union representatives not being allowed on compa ny boats or property which notice was read or discussed by these employees after which they decided to leave the vessel Reasons listed on their signoff slips for leav ing including those put there at the direction of Captain York included jumped boat because the union man cannot come aboard and due to no union representa 52 Collyer Insulated Wire 192 NLRB 837 (1971) 1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion Ambers Gantley and Reynolds also contended they left because they wanted to talk to union represent atives or to contact the Union The General Counsel and the Union contend these five employees were discharged because of their union or protected concerted activities while Respondents assert they engaged in a work stoppage in violation of Section 8(d) of the Act and/or engaged in a work stop page in violation of the contract Additionally Respond ents contend grievances have been filed and the Board should defer to the arbitration process 53 Because Ambers Gantley Reynolds Thomason and Wheeler in response to a notice posted by Respondents denying their union representatives the right to board the vessels which they read or discussed all left the vessel together on October 31 without permission or being properly relieved thereby withholding their services and refusing to perform their assigned duties and leaving the vessel short handed I am persuaded and find they en gaged in an unprotected work stoppage in violation of the contracts no strike clause and their discharges by Respondents for such conduct did not violate Section 8(a)(1) or (3) of the Act Respondents posting of the notice was not conduct of a sufficient nature to remove this unauthorized work stoppage from the prohibition of the no strike clause The right of union representatives none of whom attempted to board the vessel on this oc casion to board Respondents vessels was a matter cov ered by the contracts and any disputes arising over such rights were subject to being resolved through the griev ance and arbitration provisions of the contracts Mark Glies was discharged on November 24 The General Counsel and the Union contend he was dis charged for union activities which Respondents deny and assert as a defense a private settlement agreement under which Glies was reinstated with backpay The evi dence found shows Captain Rone discharged Glies when Glies who was being unlawfully interrogated by Rone concerning what happened at a union meeting Glies had attended told Rone he did not think it was any of his business Rone after informing Glies he was discharged indicated the situation would not have happened if the pilot had pulled the boat away from the dock when the union representatives showed up Under these circum stances including Glies union activities of which Re spondents had knowledge Respondents union animus as established by the unlawful conduct found including that directed against Glies and the discharge conversation itself I am persuaded and find on November 24 Re spondents discriminatorily discharged Mark Glies be cause of his union activities thereby violating Section 8(a)(3) and (1) of the Act Respondents further conten tion that a private settlement agreement under which Glies was reinstated with backpay precludes further action is rejected inasmuch as the rights guaranteed under the Act are in the public interest rather than pri vate rights See Schuylkill Metals Corp 218 NLRB 317 fn 1 (1975) Further the Board will not defer to an in formal settlement agreement pursuant to a grievance pro cedure as here which did not consider the 8(a)(3) aspect of Glies discharge Owens Corning Fiberglas Co 236 NLRB 479 (1978) 54 The settlement agreement did not as argued by Respondents remedy this unfair labor prac tices The findings supra establish Pittman and Hitchcock who were employed by Respondent MAC were dis charged by Captain Macaluso on December 3 contrary to his contention they quit their jobs Prior to their dis charges Macaluso had repeatedly voiced objections about the Union and working with people from the Union who he claimed were never any good and ques tioned Pittman about why he was not in the Union when his brothers were and he also called Hitchcock Piney Point which was where the Union s Lundeberg School which Hitchcock had attended was located Having rejected Respondent MAC s contention that Edward Pittman and Richard Hitchcock quit their jobs and finding instead that Macaluso discharged them and taking into consideration Respondent MAC s union animus as found I am persuaded and find that Macaluso who not only expressed dislike for the Union and work ing with people from the Union but also questioned Pitt man about the Union and called Hitchcock who was a union member Piney Point discriminatorily discharged Edward Pittman and Richard Hitchcock on December 3 because he suspected they were union members or sup porters and Respondent MAC thereby violated Section 8(a)(3) and (1) of the Act Gary Wilkins was discharged on December 7 The General Counsel and the Union contend contrary to Re spondents denials that it was because of the Union The findings supra establish that the day before his dis charge when Wilkins informed Captain Sunnier he was a union member and praised the Union and its school Sunnler suggested the Company would probably take care of him better than the Union and unlawfully in formed Wilkins that without the Union employees would be paid extra money that the Company was paying to the Union for the school The following day Sunnler who had never previously criticized Wilkins work and only a few days earlier had praised it and so licited Wilkins to become a regular crewmember on his boat began without any apparent justification to criticize Wilkins work and then discharged him Under these cir cumstances including Wilkins union membership and activities of which Respondents had knowledge the timing of Wilkins discharge in relation to learning of his union support Respondents union animus as established by its unlawful conduct here found and in particular that directed by Sunnier against Wilkins and absent as here any basis shown for Sunnler criticizing Wilkins work I am persuaded and find that Respondents on December 7 discriminatorily discharged Gary Wilkins because of his union membership and activities thereby violating Section 8(a)(3) and (1) of the Act s The money Glies received from the Respondents under the settle ment agreement shall to the extent it was payment for matters he would 53 Inasmuch as the Collyer doctrine as previously indicated is not apph be entitled to be reimbursed for as backpay be deducted from any back cable to this type case this defense is rejected pay due him AMERICAN COMMERCIAL LINES The General Counsel contends Respondents refused from about September 21 1979 to September 29 1980 to recall Donald Meritt Jr because of his union active ties 55 which Respondents deny and assert as a defense the issuance of an arbitration award allegedly covering the refusal to recall him The findings supra establish on September 2 while Mentt was employed aboard the vessel Dennis Hendrix Captain York questioned him about whether he was going to attend a union conference and threatened him that if he did he would no longer have a job there Mentt attended the conference anyway However when he attempted to return to work on September 21 and de spite his numerous requests for jobs made to the crew dispatchers between then and April 14 1980 56 when Crew Dispatcher Graviss informed Mentt there no longer was a position available for him at Respondents he was not rehired Respondents contentions that Meritt only sought employment on the Dennis Hendrix was pre viously rejected and their contention Mentt was not re hired aboard the Dennis Hendrix because of the incidents involving the liquor and transportation expenses is not persuasive Although Meritt was admonished not to let such incidents happen again he not only continued working after these incidents but also was promoted by Captain Philpott after Philpott had learned of the liquor incident Following an arbitration award Respondents did offer Mentt a job about September 29 1980 Based on the foregoing evidence including Mentt s union activities of which Respondents had knowledge the threat not to rehire him if he went to the union con ference and refusing to recall him without any valid rea sons shown after he attended the union conference while at the same time employing other unit employees and taking into consideration Respondents union animus I am persuaded and find Respondents from about Septem ber 21 1979 to about September 29 1980 discriminator ily refused to recall Donald Meritt Jr because of his union activities thereby violating Section 8(a)(3) and (1) of the Act Under the Spielberg57 doctrine arbitration decisions are recognized when the arbitration proceedings appear to have been fair and regular all parties have agreed to be bound and the arbitrators decision is not clearly repug nant to the purposes and policies of the Act The Board will not defer however to arbitration awards that bear no indication that the arbitrator ruled on the statutory issue of discrimination in determining the propriety of an employers disciplinary actions and the burden of prov ing that the issue of discrimination was litigated before the arbitrator rests on the party seeking such deferral Suburban Motor Freight 247 NLRB 146 (1980) Respond ents defense that the arbitrators decision regarding Meritt should be deferred to is rejected because Re spondents as the moving party have failed to meet their burden of showing the arbitrator ruled on the statutory as The General Counsel s position at the hearing was that the refusal to recall Mentt was not limited to the vessel Dennis Hendrix 56 During the period from October 27 to about March 11 1980 while Mentt was employed elsewhere he did not apply 5 7 Spielberg Mfg Co 112 NLRB 1080 1082 (1955) 1113 issue of discrimination in determining the propriety of Respondents disciplinary actions against Mentt by not proffering any evidence including the arbitrators deci sion itself See Supermarkets General Corp 262 NLRB 731 (1982) Although Respondents also argue the release signed by Meritt in the Jones Act lawsuit released Respondents from liability under any statute such argument is reject ed because the release by its own terms was limited to the matter involving the injury The General Counsel and the Union contend Respond ents refused to recall William Allen because of his union activities which Respondents deny and assert as defenses Allen quit his job because Allen has sought to return to work no one has been shipped in his classification of util ity tankerman the pleadings are defective because they allege a refusal to recall rather than a refusal to rehire and there is a grievance pending arbitration and the Board should defer to the arbitration process The latter defense is rejected because the Collyer doctrine is not ap placable to this type of violation for reasons previously stated The findings show Allen a utility tankerman left the employment of Respondents about mid May to work for another company elsewhere He was not on leave of ab sence to do so and the contract prohibited leaves of ab sence for that reason When he attemped to be rehired in early September Respondents were no longer employing utility tankermen and Breen who had twice previously informed Allen he was not satisfied with his work told his secretary he did not want to ship Allen giving as rea sons there were no openings and his dissatisfaction with Allen s ability There was no credible evidence to show Respondents at the time of the initial refusal to rehire Allen had knowledge Allen had attended or planned to attend the union conference For these reasons I am per suaded and find there is insufficient evidence to establish Respondents discriminatorily refused to recall Allen be cause of his union activities in violation of Section 8(a)(1) or (3) of the Act as alleged The General Counsel and the Union contend Respond ents from about September 17 until November 2 refused to recall Robert Pruitt because of his union activities which Respondents deny and assert there is a grievance pending arbitration and the Board should defer to the ar bitration process For reasons previously stated deferral to the arbitration process is rejected The evidence establishes that when Pruitt who had worked for Respondents for several years attempted to return to work on September 17 after attending a union conference he was not recalled Despite repeated re quests Pruitt made to Humbert and Eve for work from September 17 until about November 2 when Pruitt ob tanned a job with Respondents through the union hiring hall he was not recalled but given various reasons such as there were no boats no one was needed or to call back Prior to attending the union conference however Humbert had threatened Pruitt that he might not be able to go back to work if he attended the union conference Although Humbert claims Pruitt was not recalled be cause he was a poor worker which he said was based on 1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pruitt s employment card and a memorandum from Cap tarn Gore I discredit such reasons Gore who had also questioned Pruitt concerning what the union conference was to be about did not testify and no evidence was proffered to support the allegations contained in Gore s memorandum Insofar as the entries relied on Pruitt s employment card are concerned Pruitt had continued to be employed by Respondents after such entries were made including the period immediately prior to going to the union conference Based on the foregoing evidence including Pruitt s union activities of which Respondents had knowledge Humbert s threat about not recalling Pruitt if he attended the union conference Respondents union animus and having rejected Humbert s alleged reasons for not recalling Pruitt I am persuaded and find Respondents from about September 17 to about Novem ber 2 discriminatorily refused to recall Robert Pruitt to work because of his union activities and thereby violated Section 8(a)(3) and (1) of the Act and the reasons ad vanced by Respondents were mere pretexts Although the General Counsel and the Union contend Respondents have refused since November 7 to hire Henry because of his union activities which Respond ents deny no evidence was proffered to establish he ever applied for work with Respondents Although he did apply for work at the Louisiana Dock Company that Company was not alleged to have violated the Act nor was it shown as urged by the General Counsel to be a conduit used by Respondents for hiring their employees Therefore I find Respondents did not discriminatorily refuse to hire Warren Henry because of his union activi ties in violation of Section 8(a)(1) and (3) of the Act as alleged Bruce Miller who applied for employment with Re spondents about the latter part of October was not hired The General Counsel and the Urion assert con trary to Respondents denial the reason for refusing to hire Miller was because of his union activities The find ings establish after Miller who had not worked for Re spondents previously applied for employment he attend ed a meeting of other applicants at which they were told if they did not have river experience they would have to attend the academy before being hired Miller admittedly complained he should not have to go to the academy announced he would not go and walked out of the meeting Because these admissions are consistent with and support Respondents reasons for not hiring Miller and absent as here any credible evidence to establish Respondents had any knowledge of Miller s union activi ties or discussed the Union with him I find the evidence is insufficient to establish Respondents discriminatorily refused to hire Bruce Miller because of his union activi ties in violation of Section 8(a)(1) and (3) of the Act as alleged The findings establish Dale Wilkert following his graduation from the Lundeberg School applied for em ployment at Respondents Jeffersonville office Although the person he asked for a job after mentioning he was from the Union told him they were not hiring at the time the person did instruct Wilkert to call back on No vember 15 Wilkert however disregarded such instruc tions and instead returned home to California Under these circumstances and absent as here any showing that other inexperienced employees were hired the same day Wilkert was told they were not hiring I find the evi dence was insufficient to establish that Respondents dis criminatorily refused to hire Dale Wilkert because of his union activities in violation of Section 8(a)(1) and (3) of the Act as the General Counsel and the Union allege and Respondents deny Phillip Macklin was discharged on October 20 1980 which the General Counsel and the Union contend over Respondents denial because of his union activities The evidence supra shows Macklin was discharged after oversleeping and being late for work 2 days straight and Chief Engineer Simms had complained to Captain Donham about Macklin s work and suggested Macklin be put off the vessel Superintendent Breen who had criticized Macklin about his work on three prior occa sions instructed Donham who had reported Simms complaints to Breen to discharge Macklin which he did Although Macklin had been active in the Union previ ously Respondents were not shown to have knowledge of all these activities and except for Macklin s union membership none were shown to have occurred at the time of his discharge Under these circumstances espe cially his prior work record and the incidents that preci pitated his discharge I am persuaded and find that there is insufficient evidence to establish Respondents discn mmatorily discharged Macklin because of his union ac tivities in violation of Section 8(a)(1) and (3) of the Act as alleged E Nonreferral List of Employees During a negotiation meeting held on October 10 Re spondents vice president Bullard complained about the Union sending employees to Respondents through its hiring hall whose names were on Respondents nonrefer ral list whereupon Bullard at the request of Union Exec utive Vice President Frank Drozak58 agreed to furnish the Union with a copy of such list Union Port Agent Jerry Brown stated Bullard also mentioned he did not want those employees on the list who had sued the Com pany shipped Bullard did not deny making such state ment Although Respondents vice president Kilroy tes tified Drozak also told him he would personally see that the people on the list were not sent from the hall Brown denied any agreement concerning it was reached at the meeting Bullard in a letter to Brown dated October 16 re ferred to the October 10 meeting and mentioned that they had agreed that no individuals on their nonreferral list would be shipped to ACBL The Union was also fur nished that day with an alphabetical list of approximately 1353 names of employees entitled at the top IT C & A B L Non Referral List (nonreferral list) which list Bullard had had retyped following the October 10 meet ing Brown in a response letter to Bullard dated October 22 disputed Bullard s statements about the nonreferral list 58 Drozak who is now president of the Union did not testify AMERICAN COMMERCIAL LINES and indicated their legal counsel had advised it was ille gal and in direct conflict with the shipping rules According to Brown s undisputed testimony at a nego tiation meeting held on December 18 Bullard also men tioned he did not want people who had gotten hurt on boats going back to the hiring hall after suing the Coin pany and then going back to the boats Bullard testified Respondents since 1969 and before have maintained a list containing the names of employees that they did not want to hire Those employees names are placed on this list which had been updated on nu merous occasions for various reasons such as quitting and leaving the boat short handed failing to catch a boat as designated intoxication or under the influence of stim ulants and misconduct An additional reason which is the only one in issue here is the filing of lawsuits against Respondents for personal injuries incurred in their work Bullard or in his absence the port captain makes the decision whether to have an employees name added to the nonreferral list Bullard reviews copies of all personal iniury lawsuits filed against the Respondents by employ ees and based on the complaints and summons alone de termines whether to put their names on such list This is accomplished by Bullard indicating not to rehire them on the documents themselves if the employees should not be rehired whereupon their names are then added to such list or by giving instructions to the crew dispatchers to place their names on the list Once the names are placed on the nonreferral list which the crew dispatchers are instructed to use in de termining which employees to ship they are not hired by Respondents while their names remain on the list These lawsuits are handled by Respondents claims de partment which was under Manager Stith 59 Bullard has nothing to do with such lawsuits once they are filed and is not kept advised of the progress and takes no further action on them Bullard also relies on information furnished to Re spondents by the Manne Index Bureau Inc 80 for plac ing employees on the nonreferral list where such infor mation indicates the employee has received various inju nes and he might be a potential liability Further em ployees who have filed lawsuits against other employers for injuries are also placed on the list if it appears from those lawsuits that they are physically impaired According to Bullard after the names of employees are placed on the nonreferral list because of the lawsuits filed their names remain there until such time as a fit for duty slip is received and both the claims department and he are satisfied those employees are able to return to work Supervisor Eve stated when employees whose names are on the nonreferral list which was still being used at the time of the hearing contact the crew dispatchers they check with Bullard who makes the decision wheth er to ship those employees who also have to have a fit for duty slip before returning The only time names are ae Stith did not testify 60 The Manne Index Bureau Inc is a clearinghouse for seamen whose services Respondents have used to obtain information 1115 removed from the nonreferral list is when employees contact the office The list is updated from time to time Bullard stated that over the years he has had conversa tions with various union representatives about the nonre ferral list sent them copies of it and also had requests from the Union to put employees on the list primarily for their failure to fulfill their union obligations Among the names contained on the nonreferral list were names of 71 employeessi including Eugene Andrews Thomas Andrews David Beasley Arvel Billington Richard Blessing Clifford Bone Reginald Brooks Albert Brown Joseph Brown Larry Callahan James Cardwell Carl Chamness Claude Chapman Noah Clark Orby Clayton Lonnie Coghill Stanley Colley John Cook Donald Cooper Michael Cornwall Ricky Daniels Jesse Dudley Ernest Durden Guy Easter Robert Estes James Flippo Terry Foley Joseph Frerichs II William Fuller Howard Fox Roy Gardner Marion Garrett Barney Godwin John Guffey Lucian Hammonds Everett Harrison Jewel Heflin Steven Hite Daniel Holeman Ray Honican Edward Jones Henry Karnes Thomas Knighten Lloyd Lawrence Willie Leaddington Andrew Lewis Benjamin Lewis Jimmy Long Kenneth Lowe Edward May Marlin Mayes Clifford McCann James Mitchell Stanley Mitchell Jr Roger McCulley Ronald Mullinax Albert Newsome Jr Bobby Norris Charles Pound Ray Rayner Bruce Reas Fred Riddle Gerald Roberge Pedro Servantes Tyrone Sides James Smith Billy Tucker Herman West Earl Woods James Wooley Alva Young 61 An allegation alleging Respondents since about October 16 have refused to hire these 71 employees on the nonreferral list was dismissed during the hearing after the General Counsel failed to establish with the exception of Billington that those employees ever applied for or attempt ed to return to work following the filing of their claims or lawsuits for injuries or had any knowledge of the existence of such nonreferral list Billmgton whose lawsuit was filed in September 1975 alleging permanent injuries and impairment sent Respondents a letter dated April 29 1976 inquiring when he could return to work or to advise him if he was no longer employed enclosing a doctor s slip for his return to work Al though Bullard noted on the letter placed in his file that they did not have any work for him it was not established whether Billington was so notified or had knowledge of the nonreferral list For these reasons and because Billington s only attempt to return to work occurred in 1976 which was more than 6 months preceding the filing of the charge I find Sec 10(b) of the Act precludes finding Respondents unlawfully refused to hire him 1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondents records contained copies of personal injury lawsuits filed against Respondents62 under the Jones Act63 for all those employees except Dudley Easter and Karnes discussed infra Written notations made by Bullard except for one by Manager Stith and another one by someone else on their summons or complaints indicate those employees among this group not to be rehired were as follows Eugene An drews Thomas Andrews Beasley Billington Blessing Bone Albert Brown Joseph Brown Callahan Cardwell Chapman Clark Coghill Colley Cook Daniels Durden Estes Flippo Foley Fox Frerichs Fuller Gardner Garrett Godwin Hammonds Harrison Heflin Hite Honican Knighten Lawrence Leaddington Andrew Lewis Lowe May McCann McCulley Stan ley Mitchell Jr Mullinax Pound Rayner Reas Riddle Roberge Sides Smith Tucker Woods and Wooley Respondents marine superintendent Shelton notified the Union by letters after their complaints were filed that Brooks Chamness 64 Cooper Holeman Servantes Ben jamin Lewis 65 Mayes and West66 were not to be re ferred to Respondents for employment in the future Shelton also wrote letters to the Union about not refer ring Jones and Norris and although those letters were written before their complaints were filed this occurred after their attorneys had notified Respondents of their claims against them for injuries which were the subject of the lawsuits subsequently filed Respondents records show that after their complaints were filed Clayton Cornwell Guffey Long and New some were placed on the nonreferral list by the claims department Respondents records also reflect James Mitchell s name had been requested by Respondents port captain Norman Ivey to be placed on the nonreferral list because he had claimed an injury and had a lawsuit pending against Respondents although he had subsequently worked This injury referred to was the subject of Mitchell s complaint later filed Following settlement of Young s lawsuit Respondents vice president Jack Wofford made a notation to Captain Bullard on a letter from Manager Stith referring to that settlement that Young was not to be rehired anymore Regarding Dudley Easter and Karnes for whom Re spondents records do not contain copies of lawsuits filed those records do reflect information pertaining to their placement on the nonreferral list Dudleys name was placed on the list on March 6 1975 by the claims department and information had been submitted by the Marine Index Bureau Inc to Respondents showing 62 Although the lawsuit filed by Ricky Daniels was against the Louise ana Dock Company he was an employee of Respondents and this in volved one of Respondents vessels 6346USC §688 64 Respondents records reflect Chamness was separated with no mien lion of reemploying him 65 Manager Stith in a letter to Shelton a couple of weeks before Shel ton sent the Union his letter suggested Lewis not be rehired because his lawsuit was pending and he was a self-described alcoholic 66 Shelton s letter to the Union about not referring West in which he claimed West was not physically capable of performing the required work was written within a couple of days after Manager Stith had note fled Shelton that West s suit had been settled for $25 000 and Stith re quested that West s file reflect he was not to be reemployed in the future Dudley who had never worked for the Respondents previously had had prior settlement agreements with four other employers between 1960 and April 1971 for back injuries Bullard in a letter to the Union dated July 20 1973 instructed them not to refer Easter whom they could not accept for reemployment giving as the reasons he had sustained a leg injury while employed on their vessel in October 1964 and had filed a lawsuit against them for permanent injuries which had been settled for $85 000 plus maintenance benefits and medical expenses Marine Superintendent Shelton informed the Union by letter dated September 8 1967 not to refer Karnes for employment A couple of days earlier Manager Stith had advised Shelton by letter they were in the process of settling for $2500 a lawsuit previously filed on behalf of Karnes and suggested Karnes not be accepted for future employment and enclosed a copy of a previous letter from Stith about a year earlier in which Stith had sug gested Karnes not be accepted for future employment giving as reasons that Karnes was purchasing his claim for a knee injury and also made reference to a criminal record and drinking problem The complaints of these 68 employees contained in Re spondents records reflect that with the exception of 12 of them 67 they all alleged permanent type injuries or impaired or diminished work ability or disablement Respondents records reflect only 3 of the 71 employ ees were reemployed namely Benjamin Lewis Lead dington and James Mitchell Benjamin Lewis and Lead dington whose complaints were filed in 1967 and 1974 respectively show Lewis was employed aboard three vessels in 1973 and Leaddington on two vessels in 1978 68 However the circumstances of their hiring in cluding whether they submitted fit for duty slips were not established and their names as previously noted are contained on the nonreferral list Doctors releases were submitted for two other em ployees On November 1 1976 the Union sent Respond ents a fit for duty slip to return to work from the U S Public Health Service Hosptial for Fox whose complaint was filed in June 1976 alleging permanent injuries and impaired ability Manager Stith noted on the Union s letter that Fox had received $60 000 for a back injury he claimed to have sustained on a company vessel on Janu ary 26 1976 and Respondents port captain Ivey had noted on the letter not to put the man on one of their boats under any circumstances Respondents records also contained a doctor s state ment dated November 17 1970 releasing James Mitchell to return to work Mitchell s complaint filed in April 1971 alleged permanent injuries and his earning capacity was impaired and diminished The Union by letter dated May 19 1971 informed Respondents it had placed Mitchell s name on the Unions referral list and men tioned Mitchell had forwarded Respondents the fit for duty slip 87 These were complaints relating to Coghill Estes Flippo Fuller Heflin Leaddington Benjamin Lewis Mayes McCann Stanley Mitchell Jr Newsome and Smith e6 Leaddmgton s employment record also shows he was injured on the last vessel he worked on AMERICAN COMMERCIAL LINES 1117 After the fit for duty slips for James Mitchell and Fox were sent to Respondents it was not established whether Mitchell ever applied for work Although Respondents records reflect Fox worked aboard one of Respondents vessels for 2 days in April 1977 the circumstances of his hiring were not established Analysis and Conclusions The pleadings allege Respondents violated Section 8(a)(1) and (3) of the Act by advising the Union about October 16 they were going to maintain a nonreferral list of employees they deemed undesirable and would not accept for future employment and since then they have maintained the list because of the employees protected concerted activities as defined by the General Counsel to mean the filing of personal injury lawsuits under the Jones Act for injuries received in their employment Re spondents deny such allegations and assert the nonrefer ral list has been maintained since prior to 1968 that the Union participated in the maintenance of the list was aware of its existence and requested a copy of it about October 10 and any action based on the nonreferral list is barred by Section 10(b) of the Act The findings establish that Respondents have main tamed a list of employees a copy of which they sent to the Union October 16 who are not to be hired Names of 70 of these employees were placed on the nonreferral list because of lawsuits they had filed against the Re spondents under the Jones Act for injuries they received during the course of their employment and the name of another employee Jesse Dudley was placed on the list because of his prior settlement agreements with other employers for work injuries Their names were placed on the nonreferral list solely on the basis of the pleadings themselves filed in those lawsuits as opposed to any de termination concerning whether they were physically able to perform the work The practice also included placing employees on the list who had filed similar law suits against other employers based on those lawsuits Al though Respondents contend employees names only remain on the list until they present a fit for duty slip and both the claims department and Vice President Bul lard are satisfied they are able to return to work the evi dence establishes otherwise For example Bullard in formed the Union on October 10 and December 18 he did not want those employees on the nonreferral list who had sued Respondents shipped Notations made by Re spondents officials on copies of the summons and com plaints filed in these employees lawsuits and statements contained in interoffice memorandum and in letters to the Union reflect such remarks as these employees are not to be rehired separated with no intention of reem ploying him not to be referred or reemployed in the future and not be rehired anymore Although three of these employees Benjamin Lewis Leaddington and Fox subsequently worked for Respondents for limited periods after filing their lawsuits their names still remain on the nonreferral list and the circumstances of their being re hired were not established Although fit for duty slips were submitted for Fox and James Mitchell their names remain on the nonreferral list and Respondents records reflect Fox who had received payments for his injuries was not to be put on Respondents boats under any cir cumstances Thus the evidence establishes employees names are placed on the nonreferral list solely because they have filed lawsuits against Respondents or other employers under the Jones Act for injuries they received during the course of their employment Not only would this cause Respondents not to hire these employees di rectly while their names were on the nonreferral list but also the Union would be estopped from referring them for employment through the union hiring hall When an employer has a legitimate and substantial business justification an inquiry concerning whether an applicant has previously filed an industrial or workman s compensation claim is not itself unlawful Ohio Brass Co 261 NLRB 137 (1982) However the right of an employ ee to file a workman s compensation claim which is a benefit arising out of the employment relationship and is of common interest to other employees is a protected concerted activity under the Act Krispy Kreme Dough nut Corp 245 NLRB 1053 (1979) enf denied 635 F 2d 304 (4th Cir 1980) The Board in that case expressly overruled its prior decision in Hunt Tool Co 69 which held that discharging an employee solely because he filed a lawsuit under the Jones Act and/or the Longshore men s and Harbor Workers Compensation Act70 seeking damages for an alleged on the job injury was not an ac tivity protected by Section 7 of the Act The Jones Act is the statutory relief accorded those employees in the maritime industry such as those em ployed by Respondents to seek redress for injuries they receive arising out of their employment aboard Respond ents vessels It is a benefit arising out of their employ ment relationship and is of common interest to other em ployees and as such employees who file claims under the Jones Act are engaged in protected concerted activities under the Act Having found that certain employees names were placed on Respondents nonreferral list solely because they had filed lawsuits against Respondents or other em ployers under the Jones Act for injuries they received during the course of their employment which is a pro tected concerted activity I find Respondents by advis ing the Union about October 16 they were going to maintain the nonreferral for employment list and by maintaining it since that date thereby discriminating against employees for engaging in protected concerted activities by filing Jones Act claims have thereby violat ed Section 8(a)(1) of the Act 71 Respondents contention that Section 10(b) of the Act precludes finding a violation is rejected Not only was this particular nonreferral list prepared in October but the list which is itself unlawful was maintained within the 6 month period preceding the filing of the charge in December The defense that the Union had knowledge of the list and participated in its maintenance is likewise 69 192 NLRB 145 (1971) o33USC §901 No contention was made at the hearing nor was any evidence prof fered to show employees names were placed on the nonreferral list be cause of union activities Accordingly I find the list did not violate Sec 8(a)(3) of the Act as alleged 1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rejected There is no evidence to show the Union ever agreed to or caused employees names to be placed on the list because they filed Jones Act claims or had knowledge that all these employees names were placed on the list for that reason prior to October when it com plained to Respondents the list was illegal F Denial of and Interference with Access to Respondents Vessels The contracts under article V section 4 provide as follows The Company agrees to allow duly authorized Union representatives access to the property and vessels of the Company for the purpose of contact ing the employees Said duly designated Union representative shall be required to show a Union identification card upon request Representatives of the Union shall be allowed to contact the employees at anytime but men at work shall not be interfered with unless said men are properly relieved the relief getting no extra com pensation Union Patrolmen Marshall Novack Kenneth McGre gor David Carter Lynn 0 Connell Robert Hall Ray Singletary and Nicholas Marrone testified concerning occasions when their access to Respondents vessels was interfered with or denied by Respondents captains and pilots 72 Patrolman Novack testified that on September 6 1980 Captain Meritt aboard the vessel Len ward Stephens es corted him and Patrolman Baker to the head of the vessel and instructed them that that was where they had to have their meeting Although deckhand James Deal claimed he met the union patrolmen and they went to the galley he acknowledged his memory of the incident was not good and Meritt did not testify Novack im pressed me as being a more credible witness than Deal and I credit Novack s version and find Meritt restricted them to the head of the vessel to hold their union meet ing On August 7 1980 Novack accompanied by Patrol men Baker and 0 Connell contacted the vessel Louis Meece by radio and requested permission to board A person Novack said was Captain Enlow answered and informed them they were not allowed aboard the vessel but said they could hold a meeting on the barge where they met with the crew Under cross examination Novack acknowledged he did not know Enlow or recall whether Enlow identified himself Captain Thomas Enlow credibly denied having any conversation with Novack However he stated Pilot Ricky Hughes who did not testify had reported to him that Hughes had denied the Union s request to board the vessel whereupon he then instructed Hughes to inform them they could board but to do so by way of the stern 72 During the period from August 1 1980 through April 23 1981 there were 287 patrolmen reports prepared covering visits by patrolmen to Respondents vessels of the barges because of the wheel wash and he over heard Hughes relay such instructions The union patrol men then met with several employees on the barge but did not board the vessel From Captain Enlow s own testimony it is clear Pilot Ricky Hughes initially informed the union patrolmen they could not board the vessel and on that occasion they did not do so but held their meeting on the barge Under these circumstances I find Respondents interfered with the Union s access rights to board the vessel On August 7 1980 Novack accompanied by Baker and 0 Connell boarded the vessel John Mathews and was restricted by Pilot Eddie Taber to holding their meeting with the crew in the crews lounge According to Taber he was acting on the instructions of Captain Collins Novack who claimed Taber said he had instructions from the captain not to leave them alone said Taber re mained present the entire time When he attempted to talk to crewmembers including the cook Taber would step between him and the crewmember and tell the crewmember he did not have to talk to Novack if he did not want to Taber whose testimony was corroborated in part by cook Harold Knowles and another crewman Paul Tungatee disputed Novack s testimony and I credit them rather than Novack whose testimony was inconsistent and contradictory Patrolman Kenneth McGregor testified on November 1 he and Special Representative Larry Taylor were re fused permission to board the vessel Richard C Young by an unidentified person who referred them to Port Captain Matt Hesters According to McGregor Hesters referred him to Vice President Jack Bullard who he contacted through the switchboard operator and asked why they were being denied access to that vessel when they still had a contract and visitation rights Bullard s response was that there was an NLRB hearing and he was not letting anyone aboard the boats until further notice On asking Bullard was this company policy or Bullard s policy Bullard told him he was the Company Vice President Bullard denied knowing McGregor or having such a conversation with him Port Captain Hes ters did not testify I credit McGregor rather than Captain Bullard and find on November 1 McGregor and Taylor were denied access to the Richard C Young Apart from my observa tions of the witnesses in crediting McGregor Bullard ac knowledged in late summer 1979 through November there were numerous changes relating to union agents visiting the vessels and as discussed infra the filing of a petition with the Board was given by Respondents as a reason for changes in their access rights Patrolman Carter credibly testified without denial that about November 17 he and Patrolman Bobby Stevens were denied permission by Captain Joe Dragon to board the vessels Rusty Barrilleaux and James E Philpott to talk to the crewmembers which resulted in their having to talk to the crewmembers of the Rusty Barrilleaux from a public barge and to the crewmembers of the James E Philpott from a lock wall Mark Glies a crewmember aboard the James E Philpott also testified without denial AMERICAN COMMERCIAL LINES 1119 that Captain Pat Rone informed the crewmembers that the union representatives could not come on the boat Patrolman 0 Connell credibly testified on September 14 1980 he and Patrolman Carter boarded the vessel Jack Bullard and were instructed by Captain Victor Bateman to stay in the crews lounge Captain Bateman while stating he did not recall this incident said he always restricted union representatives to the crews lounge to keep them from pursuing the people around the vessel or tow where they could but tonhole a man and antagonize him Bateman explained he made this decision after a crewman had complained a union agent had told him he was fired and after observ ing crewmembers including Bobby Burnett throwing rigging at a union picket boat during a strike after em ployees said they have been called names and their fame lies threatened by unidentified pickets Burnett corrobo rated Bateman s testimony concerning the picket boat in cident which he placed as occurring in late July or early August 1980 Patrolmen 0 Connell and Carter stated that on Sep tember 15 1980 after asking a man on the vessel Henry D about boarding the man mumbled something and went to the wheelhouse 0 Connell could not identify the man while Carter said he had met hum before and de scribed him as being a captain whose first name he thought was Jim Both O Connell and Carter said a deckhand then came out and told them nobody wanted to talk to them and they could not come aboard While Carter unlike 0 Connell said the man he described as the captain also informed them the crew did not want to talk to them and there was no reason to come aboard Carter acknowledged having stated in an affidavit given to a Board agent that it was a deckhand who made this statement and that the captain had already left the deck when this occurred Because it was not established specifically what the man described as the captain told them if anything on that occasion and it was a deckhand who denied them permission to come aboard I do not find such evidence sufficient to find Respondents denied them access to the vessel on that occasion Patrolman Hall s undisputed testimony which I credit establishes about mid September he and Patrolman Wil Liam Dagan Jr boarded the vessel Tom Frazier and talked to the crew for about 1-1/2 hours until the cap tarn who was not identified said they had been on board long enough and he thought it was time for them to leave which they did The patrolman s report reflects they were aboard the vessel for 2 hours and Hall ac knowledged it may have been a suggestion rather than an order of the captain to leave On this occasion they were not restricted with respect to where they could meet with the crew Because Hall and Dagan were aboard the vessel for about 2 hours were not restricted in where they could meet with the crew and made no request for additional time and because Hall acknowledged it may have been a suggestion rather than an order to leave I find no basis for finding their right to access on this occasion was either denied or interfered with Carter s undisputed testimony which I credit estab fishes on September 25 1980 he and Patrolman 0 Con nell boarded the vessel Dell Butcher near lock 50 at which time the captain who was not identified by name restricted them to the crews lounge The undisputed testimony of Patrolman Singletary winch I credit establishes on September 30 1980 he and Patrolman Heindell were informed by Captain Lenwood Stevens aboard the vessel Charles Peters they could hold their meeting with the crew on the bow of the boat or get off notwithstanding they protested that according to past practice they had access to the crews lounge and galley when not in operation Stevens did agree if it started raining any harder than it was at that time he would give them access to the deck locker On October 9 1980 Patrolmen Singletary and Hein dell were restricted by Captain David Shirah aboard the vessel Carl Shelton over their objections to meet with the crew only on the head of the vessel Shirah at their request signed a written statement to that effect Shirah explained at the hearing he directed the meeting to be held there for the patrolmen s own protection as well as the crew s protection This resulted from reports made to Shirah by crewmember Victor Numez during the strike which had been over for several weeks that Union Pa trolman Tom Jones had sent Numez a letter calling him names stating when the Union got back in he would not have a job for refusing to go on strike by crewmember Carl Morgan that pickets had called him names when he crossed the picket line and said he was not going to have a job and a report by crewmember Raymond Randolph about being told they would not have jobs when the Union got back and they would fire everybody who did not strike Crewmembers Victor Numez Carl Morgan and Raymond Randolph corroborated Shirah s testimony about their reporting such incidents to him Shirah also testified he wanted to have the meeting there so he could see what was going on On October 14 1980 Patrolmen Novack and 0 Con nell held a meeting with two employees aboard the vessel W A Kernan in the deck locker Although Novack stated Pilot Carl Hayes told them they had to stay in the deck locker Hayes claimed he had asked them if it was satisfactory for them to hold a meeting there and they agreed About an hour later Hayes re turned and informed the two crewmembers that Novack and 0 Connell had been talking to that it was time to go to work Novack also stated without denial that Hayes told them they had to get off the boat Under cross ex animation Novack acknowledged he did not ask if the two men could be relieved so he could talk to them To the extent the testimony of Novack and Hayes conflicts I credit Novack who I find was a more credible witness than Hayes and find on that occasion Hales restricted them to the deck locker Apart from my observations of the witnesses in discrediting Hayes if as he contends he did not restrict them to the deck locker there would have been no reason as he so testified for him to go and notify the crew about the meeting because the patrolmen could have done so themselves 1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On October 14 1980 Patrolmen Novack and 0 Con nell boarded the vessel Pat Breen According to Novack the pilot who was Greg Binkley informed them they had to stay in the deck locker or on the head of the vessel so they remained in the deck locker About an hour or so later Binkley told them they had to leave and the meeting was over Pilot Binkley acknowledged taking them to the deck locker and telling them he wanted them to remain there However he stated about 30 minutes later when he told them if they were through with the crew he had work for them to do one of them replied that if he did they were through Based on the testimony of Novack and Binkley s ad mission I find that he restricted them to the deck locker However I credit Binkley rather than Novack and find that he did not tell them they had to leave and the meet ing was over Binkley impressed me as a more credible witness than Novack whom I have discredited on other occasions Patrolman 0 Connell stated on October 17 1980 he and Patrolman Baker attempted to board the vessel Louis En low whereupon Captain Claude McDonald informed them they could not come aboard and none of the crew wanted to talk to them On asking McDonald whether they could come aboard and see if anybody was awake or anything McDonald told him they were not allowed aboard whereupon they left Although Captain McDonald testified he did not tests fy concerning this incident Two crewmembers George Robertson and William Robinson were presented as wit nesses by Respondents According to Robertson he was in the wheelhouse when the Union contacted McDonald on the radio about boarding and McDonald instructed him to tell the crew if they wanted to talk to them they could gather in the lounge However after talking to the crewmembers he informed McDonald none of the crew did whereupon McDonald told him that he could meet with the union representatives on the tow and not to waste their time to inform them of that Robertson stated when he told 0 Connell and Baker the men did not want to talk to them Baker said he wanted to talk with the men and proceeded to the deck locker where McDonald met them Robertson said he then told McDonald he had checked with the men and nobody wanted to say any thing to them whereupon McDonald told Baker that Robertson had talked to the men and they did not want to talk to him and he could not force them When Baker asked McDonald if he was saying he could not come on board McDonald replied he was not saying that William Robinson stated he observed 0 Connell and another man get on the barges at which time 0 Connell talked to him and then they went back to the boat and later he saw 0 Connell and the other man come out of the boat onto the barges and leave I credit Patrolman 0 Connell and find Captain McDonald informed them they could not come aboard the vessel Neither Robertson nor Robinson impressed me as being credible witnesses and Robertson s own tes timony about Baker questioning McDonald whether he was saying they could not come on board indicates McDonald had indicated to them they could not board On October 21 1980 Patrolman Singletary and Hein dell were admittedly restricted by Captain Shirah on the vessel Carl Shelton to meeting with crewmembers only on the head of the vessel Crewman Cecil Morgan admit tedly sprayed Singletary and Heindell with water during this meeting However it was not shown that Captain Shirah who threatened Morgan with discharge if it hap pened again was in any way responsible Patrolman Heindell testified on October 28 1980 he boarded the vessel Harry Mack The captain who was referred to as John by the pilot who had introduced himself as Hanley told him he should hold his meeting in the crews lounge and that was it On mentioning he had access to the galley when not in operation and to the deck locker the captain told him he better not go in the galley On asking the captain if that was a threat the captain replied yes then turned to Pilot Hanley and said they had enough water and to untie the vessel and get out of there The captain then told Heindell that he was going to have to leave because they were leaving whereupon Heindell who had been on the vessel 30 to 40 minutes then left Heindell then went to his car parked several hundred feet and the vessel left the dock and went out several hundred feet and stopped A little later Heindell stated he saw the vessel pull up alongside the dock again and as he went back to the ramp leading to the dock he observed the captain come out say some thing and make to a hand motion and the boat left the dock again and went out several hundred feet away from the dock Under cross examination Heindell acknowl edged after reviewing the patrolman s report that the captain also told him he could hold this meeting in the deck locker if he wanted to Two crewmembers Ray mond Webb and Mark Tommasi acknowledged the vessel left the dock then returned and left again How ever Webb denied seeing anyone trying to board when they left the second time and Tommasi who untied the vessel denied seeing or hearing anyone yell or wave their arms According to Webb while they were initially docked the vessel was taking on water and Tommasi denied when they returned to the dock they took on any more water Supervisor Eve denied any knowledge of a captain or pilot working for Respondents in 1980 named Hanley and Captain Lowell Clark who was identified as the captain by Webb did not testify Heindell s undisputed testimony which I credit estab lishes he was restricted by the captain who was indenti fled as Lowell Clark to holding his meeting in the crews lounge or the deck locker However I do not find the evidence sufficient to show the vessel was inten tionally moved from the dock area to Heindell off the vessel On October 30 1980 Patrolmen Marrone and 0 Con nell boarded the vessel Dell Butcher and were restricted by Captain William Kelly to holding their meeting in the crews lounge Two crewmembers John Lewis and Robert Hurt stated they were informed the meeting would be held in the lounge According to Kelly his own policy was to designate the place for the meeting and he set it in the crews lounge which was the most convenient place then When Marrone and 0 Connell AMERICAN COMMERCIAL LINES left the crews lounge they were admittedly instructed by Kelly to return there and not to walk around the boat Later Marrone and 0 Connell informed Kelly they were going to make a safety inspection aboard the vessel whereupon Kelly informed them they were not going to According to Kelly he told them the Union had never conducted a safety inspection in the past and the only people who had ever inspected it were the Company and the Coast Guard Kelly also told them if they were fin ished talking to the crew they could leave Kelly denied that union representatives had ever previ ously requested to make safety inspections 7 3 Both Mar rone and 0 Connell stated in the past when visiting ves sels they had checked things such as fire extinguishers and hoses and Marrone said he had looked for such things as whether the engineroom was clean and wheth er there were any oil spills or dirty rags that could be a hazard to the crew Absent as here any evidence the Union had previously conducted formal safety inspections aboard Respondents vessels or possessed any authority to conduct such in spections I do not find their access rights aboard the vessel were interfered with by preventing them from making such inspections on this or any other of Re spondents vessels discussed On November 7 1980 Patrolman Novak accompanied by 0 Connell testified Captain Alfred Weaver of the vessel John Mathews told them to hold their meeting in the crews lounge or deck locker and that they were not allowed in any other area of the boat or tow Weaver ac knowledged telling them to hold it in the crews lounge Based on the testimony of Novak and Weaver I find the Union was restricted to holding their meeting in the crews lounge Novak also stated he informed Weaver they were going to walk around the boat and the tow and make a safety inspection whereupon Weaver informed him he was not going to make any safety inspection on his boat Weaver acknowledged denying him the right to make a safety inspection and said he told them he did not know of any authority they had to inspect the boat and only the Coast Guard did so Weaver denied there had been a request before to go on the tow or for a safety inspec tion The undisputed testimony of Patrolman Dagan which I credit establishes on November 12 1980 he and Pa trolman Hall boarded the vessel Jack D Wofford and were informed by the captain who he recognized but whose name he did not know to stay at the head of the boat and said they could not go on the boat or the tow When Hall went on the tow the captain yelled at the lockman to tell Hall to get off Patrolman Singletary on direct examination stated on November 14 1980 he and Patrolman Heindell boarded the vessel Dennis Hendrix at which time Captain Rudy York informed them the meeting would be held in the crews lounge Under cross examination however Sin gletary denied having any recollection of his conversa "The contracts do not provide for safety inspections by the union representatives 1121 tion with Captain York even after reviewing the patrol man s report which he did not prepare Because Singletary as reflected by his cross examina tion could not recall these events and Captain York did not testify concerning the incident I find no credible evi dence to establish union representatives were restricted to the crews lounge on that occasion On November 19 1980 Patrolmen Singletary and Heindell were restricted by Captain Mike Collins on the vessel Frank Rader to holding their meeting with the crew in the crews lounge only Heindell stated he pro tested to no avail that they also had access to the galley head of the vessel and deck locker Collins testified he informed the crewmembers about the meeting telling them they could talk to the union representatives all they wanted to but if they felt they did not want to they did not have to and he was not going to make them Crewmember Greg Kauffman said he informed Collins the crew did not want to meet with the union represent atives Collins after talking to the crew informed Singletary and Heindell nobody wanted to talk to them Heindell told Collins he wanted to hear it from the crewmembers themselves whereupon the crewmembers were then brought in and each of them was asked by Heindell and Singletary in Collins presence whether they wanted to talk to them and they all replied they did not Collins also offered to leave so Heindell could talk to the crew alone after Heindell indicated Collins presence was the reason for their answers Singletary stated when he tried to talk to one of the crewmembers Collins interrupted by indicating to the man he did not want to talk to them whereupon the man agreed Following the crewmembers refusals to talk to Hein dell and Singletary Collins indicated their business was through and they could leave Heindell then announced they intended to conduct a safety inspection of the vessel Collins refused saying the Coast Guard took care of that Heindell insisted they were going to conduct the investigation anyway Both Singletary and Heindell testified when Heindell ques tioned Collins whether he was going to physically put them off the boat if they attempted to make an inspec tion Collins said he would do what it took and Heindell reminded Collins he would be responsible for the crews actions Collins stated when Heindell asked whether he was going to use force or harm him he denied it Hein dell informed Collins he was going to call his bluff whereupon Singletary and Heindell over Collins objec tions that they were trespassing attempted to conduct a safety inspection However crewmembers physically blocked their way preventing them from conducting such an inspection Both Singletary and Heindell testified Collins instructed the crewmembers to block the door ways although Collins denied making any such state ments Crewmember Kauffman however called as a witness by Respondents corroborated Singletary and Heindell by stating Collins told the crewmembers not to let one of the union representatives who went on deck 1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD give a safety inspection whereupon two or three crew members then went after him and blocked his way Under cross examination Singletary admitted Hein dell s statement to Collins about conducting a formal safety inspection was contrary to the past practice Hein dell himself while first stating he did not remember ever telling a captain he was going to conduct a safety inspec tion then said he believed he told one who refused Captain James Philpott who came over to the vessel at the request of Captain Collins denied the Union had ever made safety inspections that were performed by the Coast Guard To the extent the testimony of Collins is inconsistent with that of Singletary and Heindell I discredit it be cause I find Heindell and Singletary were more credible witnesses than Collins whose testimony was not only in consistent and contradictory but was contradicted by Re spondents own witness Kauffman Patrolman 0 Connell stated on November 21 1980 while aboard the vessel Louis Enlow as he came out of the deck locker Captain McDonald informed him he was dust supposed to be in the galley deck lock or lounge On telling McDonald the court order said he did not have to stay anywhere on the boat McDonald cursed the court order 0 Connell said he then went to the galley and talked to cook George Rogers while McDon ald remained present about 10 to 15 feet away and kept asking him when he was getting off 0 Connell acknowl edged he did not request McDonald to leave Captain McDonald however stated when 0 Connell asked to talk to the crew he told them they were all downstairs and they could go down and talk to them McDonald said when he went to the galley for lunch O Connell the cook and maybe another crewmember were present but 0 Connell went outside Although four crewmembers-William Robinson David Hall Thomas Crouch and Richard Warmuth-were presented as wit nesses by Respondents it was not established they were present during these alleged conversations I credit McDonald rather than 0 Connell and find he did not restrict 0 Connell to any area in talking with the crew or remain present while 0 Connell talked to the cook Besides my observations of the witnesses 0 Con nell s testimony was contradictory On November 24 1980 Patrolmen Singletary and Heindell were barred by Respondents from boarding the vessel W 0 Watson Respondents by letter dated No vember 20 1980 had previously revoked the visiting privileges of both Singletary and Heindell because of their attempts to conduct the safety inspection of the vessel Frank Rader on November 19 1980 discussed supra This letter further stated union agents had never been allowed aboard for purposes of conducting safety inspections which were the responsibility of the captain and such statutory authorities as the Coast Guard During a subsequent exchange of correspondence be tween the Union s attorney Cutler and Respondents over the issue whether union agents had previously con ducted a safety inspection the Union promised to submit evidence to show they had however such evidence was never submitted Respondents did offer to meet with the Union and discuss safety inspections Because the visiting privileges of Singletary and Hein dell to board Respondents vessels had been revoked I do not find denying them access to the W 0 Watson on November 24 1980 was unlawful 74 Patrolman Novack testified on February 3 1981 he spoke with Captain Peter Alouise about boarding the vessel Frank Phipps and in his presence Alouise called his office and asked Carl Cannon the procedure Can non s response was they were restricted to the head of the boat or the crews lounge or the deck locker and were not allowed in any other areas Captain Alouise however denied having any conver sation with union representatives on February 3 1981 or that he was aboard the vessel but stated he was home in Pennsylvania at the time on his time off Respondents payroll records also reflect Alouise was not aboard that vessel on February 3 1981 I credit the testimony of Captain Alouise which was corroborated by Respondents payroll records and find he was not aboard the vessel and therefore did not have such a conversation with Novack on that date On February 5 1981 Patrolman Novack stated he and O Connell contacted Pilot James Hamm aboard the vessel Louis Enlow about boarding whereupon Hamm told him to stand by while he contacted the captain About 5 minutes later Hamm advised him Captain Hick erson had informed him no union people were allowed aboard his boat and apologized saying he had nothing to do with it and it was the captains decision Hamm acknowledged receiving a radio call from a person identifying himself as a union representative seek ing permission to board However he said he could not find his name which he cannot now recall on the au thonzed list and checked with Captain Carl Hickerson who instructed him not to let him board whereupon he then told the man his name was not on the list and he could not board Hamm denied knowing either Novack or 0 Connell Although he said he only saw one man in the boat which the union representative was using he was not sure whether he could have seen another man if one was there I credit Novack rather than Hamm and find Pilot Hamm informed them that no union people were al lowed aboard the boat Besides my observations of the witnesses in discrediting Hamm whom I have also previ ously discredited his reason does not appear plausible On February 20 1981 Patrolman Marrone accompa need by Patrolmen Novack and 0 Connell contacted Captain Ralph Hutson aboard the vessel Bill Elmer about boarding Both Marrone and 0 Connell stated Hutson in formed them no crewmember wanted to talk to them but they could board and the lead deckhand would meet them at the head of the boat but they were to go no fur ther than the head of the boat Hutson acknowledged telling them the head deckhand would meet them on the head of the boat After boarding Marrone stated he went to the crews lounge area where Captain Hutson intro 44 The suspension of the visiting rights of Singletary and Heindell to board Respondents vessels was not alleged in the pleadings to be unlaw ful and was not an issue in these cases Accordingly no finding is made on their suspensions AMERICAN COMMERCIAL LINES 1123 duced himself and told Marrone he was to stay at the head of the boat which he said he had told him over the radio and for him to get out of the lounge On protest ing he was always allowed in the crews lounge and galley area Hutson told him not on his boat and to get off if he was through and escorted him to the head of the boat 0 Connell also stated he saw Hutson follow Marrone out Captain Hutson however except for giving permis sion to the union representative over the radio to board denied speaking to any union representative while they were aboard the vessel and stated he remained in the pi lothouse Under cross examination Hutson stated he had told the lead deckhand to inform the crew if they wanted to talk to the union representatives they would have to go to the bow of the boat I credit the testimony of Marrone corroborated in part by 0 Connell who I found to be a more credible witness than Hutson Hutson s own testimony indicates the crew had to meet with the union representatives on the head of the boat according to his instructions There fore I find Captain Hutson restricted the union repre sentatives to the head of the boat On March 9 1981 Patrolmen Hall and Dagan contact ed Pilot Larry Strain aboard the vessel Floyd H Blaske by radio but after identifying themselves all transmis sion between them ceased Strain explained this occurred after he was asked to switch radio channels which he did but then could get no response Hall and Dagan then went to the lock and boarded the barges but said Strain told them they would have to get off because they did not ask permission to board Strain acknowledged telling Hall over the public address system he was not supposed to be jumping on the tow when the vessel was moving without his life jacket and he had to get off and come back when the vessel was tied off which Hall did According to Hall whose tests mony was corroborated by Dagan when they went to the head of the boat Strain told them they would have to stay there until Captain Eddie Lancaster came When Lancaster came Lancaster told them they would have to stay on the head of the boat and refused to let them on the barges Strain acknowledged telling Hall to wait on the head of the boat and he would get Captain Lancaster to talk with him According to Lancaster he told them at the head of the boat they could meet with the men on the head of the boat or in the crews lounge or galley and denied they asked to go anywhere else According to Lancaster the crew on watch was working on the tow and no one was allowed on the tow while they were working I credit the testimony of Hall and Dagan and find that they were restricted by Lancaster to the head of the boat Even Lancaster s own testimony reflects he in structed them to hold their meeting in certain places Patrolman Hall first testified that on March 10 1981 Captain Bobby Enlow aboard the vessel Hugh C Blaske ordered Patrolman Dagan and him off the barges they had boarded because they were not wearing life vests Under cross examination however Hall acknowledged he could not identify the man he talked to as being Cap tarn Enlow and admitted the man could have been the steersman Therefore I find the evidence was insufficient to establish Respondents interfered with or denied Hall and Dagan access to the vessel or barges Patrolman Hall whose testimony was corroborated by Patrolman Dagan credibly testified without denial on March 16 1981 Captain Marsh 75 aboard the vessel Charles Lehman informed them they would have to stay in the crews lounge Although Hall first said they re mained there he acknowledged under cross examination they went to both the crews lounge and the deck locker According to Patrolman Carter on March 21 1981 he boarded the vessel Charles Peters and was informed by Captain Stevenson who he said he previously worked for that he could see the men in the crews lounge but was restricted to the crews lounge Supervisor Eve credibly denied any knowledge of a captain or pilot named Stevenson who was employed by Respondents during 1979-1981 Having credited Eve and absent as here any evidence to show that this individual who Carter talked to was ac tually employed by Respondents as a captain on that oc casion I find there is insufficient evidence to show this individual was actually a captain as Carter claims Patrolman Novack stated on March 21 1981 aboard the vessel Joe Bobzien he introduced himself to Captain Walker who informed him he was restricted to the crews lounge and denied his request to go to the galley Respondents records however reflect Captain Walker was not aboard the vessel on that date but was aboard the vessel V W Meythaler while Captain Ken neth Wofford was captain of the Joe Bobzien Walker also denied ever working on the Joe Bobzzen Based on Respondents records and the testimony of Walker which I credit I find Patrolman Novack did not have such a conversation with Walker aboard the vessel Joe Bobzzen on that occasion On April 1 1981 Patrolman Hall where testimony was corroborated in part by Dagan testified that when they tried to board the vessel R W Naye the pilot Sherman Hendricks informed them over the loudspeaker that before they boarded they would have to talk to the leadman Hall explained to Hendricks they were entitled to board and to get a crew list however Hendricks said they were not entitled to anything Hall and Dagan then went to the lock wall and talked to the crew from there Hendricks while acknowledging the union patrolmen did not board the vessel denied he refused to allow them aboard According to him Hall asked to come aboard for a crew list whereupon he informed Hall he could get it through the main office I credit Hall where testimony was corroborated in part by Dagan rather than Hendricks and find Hen dricks refused their requests to board the vessel Hen drick s own testimony reflects they sought to board the vessel but did not do so 75 Respondents deck log for the vessel reflects Captain Marsh who did not testify was on watch when Hall and Dagan boarded that evening 1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Patrolman Novack s undisputed testimony which I credit establishes on April 9 1981 when he and Patrol man Robert Vahey attempted to board the vessel Bill Elmer the captain ran down from the wheelhouse and tried to wave off their servicing boat telling them to go away that nobody wanted to talk to them However he and Vahey boarded the vessel anyway and held a meet ing at the head of the vessel with seven employees Be cause the captain tried to keep Novack and Vahey from boarding the vessel I find the captain interfered with their access rights to the vessel These findings supra establish that between Novem ber I and April 9 1981 Respondents Vice President Jack Bullard Captain Mentt Joe Dragon Pat Rone Victor Bateman Lenwood Stevens David Shirah Claude McDonald Lowell Clark William Kelly Alfred Weaver Ralph Hutson Eddie Lancaster Marsh and other unidentified captains and Pilots Ricky Hughes Eddie Taber Carl Hayes Greg Binkley James Hamm and Sherman Henson interfered with or prohibited union patrolmen on 8 different occasions from boarding Re spondents vessels including the Louis Meece on August 7 1980 Richard C Young on November 1 James Phil pott on November 17 Rusty Barrilleaux on November 17 Louis Enlow on October 17 1980 and February 5 1981 R W Naye on April 1 1981 and the Bill Elmer on April 9 1981 and on 17 other occasions restricted union patrolmen to such areas aboard the vessels includ ing the Lenward Stephens on September 6 1980 John Mathews on August 7 and November 7 1980 Jack Bul lard on September 14 1980 Dell Butcher on September 25 and October 30 1980 Charles Peters on September 30 1980 Carl Shelton on October 9 and 21 1980 W A Kernan on November 14 1980 Pat Breen on October 14 1980 Harry Mack on October 28 1980 Jack Wofford on November 12 1980 Bill Elmer on February 20 1981 Floyd H Blaske on March 9 1981 Charles Lehman on March 16 1981 and the Frank Rader on November 19 1980 as the head of the vessel crews lounge or deck locker Although Patrolmen Novack 0 Connell and Marrone further testified concerning other incidents involving the vessels A C Shelton on August 7 1980 Jack D Wofford on September 30 1980 and Richard C Young on Febru ary 20 1981 they were unable to positively identify the persons they spoke with as being the captains or pilots of those vessels or other responsible officials of the Re spondents The mere fact the person was observed in the wheelhouse talking on the radio or steering the vessel does not standing alone establish such person was a captain or pilot because the record is replete with evi dence reflecting that crewmen on occasion also perform such tasks Nor do I find that merely addressing a person who does not refute it as captain is sufficient standing alone to find that person is a captain Accordingly these incidents are dismissed Respondents during the period from December 31 after the contracts expired until about August 4 1980 did not allow union agents on board vessels operated by them 76 Union Patrolmen Carter Dagan Hall Singletary Heindell McGregor Novack James McGee and Port Agent Pillsworth all testified concerning visits aboard Respondents vessels Their overall testimony which I credit reflects patrolmen were instructed by the Union to visit each vessel at least once a month During such visits they would meet and consult with crewmembers about their work ascertain whether they had any prob lems or grievances provide employees with various union forms sign up new members deal with contract disputes keep records of crewmembers aboard observe sanitary conditions and service the membership On oc casion although they might observe whether there were any frayed lines or wires or spilled oil they did not con duct formal safety inspections Although some but not all of them had been instructed by the Union to meet with crewmembers in such areas as the crews lounge galley when not in use or the bow of the boat they had not previously been restricted by Re spondents regarding where they could conduct their meetings As early as February union agents had visited Re spondents vessels and property in part to ascertain em ployees union sympathies or lack thereof and to solicit or maintain support for the Union Respondents by telegram and letter dated October 31 notified the Union that effective immediately the visiting privileges of all union agents aboard their vessels were revoked The reason given was that a representation pe tition77 filed by the Union had opened the door for other labor organizations interested in representing Re spondents employees to solicit support from those em ployees which presented a problem for Respondents be cause those labor organizations might claim the same privileges78 as the Union to visit their vessels and to deny those organizations unlimited assess would only result in charges of interference and favoritism at the Board 79 These documents further stated We recognize your contractual right to visit our vessels for purposes of contract administration and enforcement However we now find we must re strict this right in order to avoid any problems as outlined earlier Vessel visitation will be limited to collective bargaining agreement problems Myself and other area port captains will be available to ac company any SIU agent to one of our vessels upon 76 Union Patrolman Carter stated during the strike no attempts were made to board Respondents vessels The strike as found supra lasted from July 14 to September 15 1980 77 The Union during a hearing held on the petition in December moved to withdraw the petition which motion was subsequently granted 8 The only such request was made on December 6 when an attorney representing the Petitioner which was not a labor organization in Case 9-RD-923 demanded the same rights as the Union to visit the vessels however Respondents did not respond to the request 79 The fact other unions might seek to board Respondents vessels as a result of a representation petition being filed as urged by Respondents in their brief affords Respondents no legal basis for denying the Union its contractual right of vessel access AMERICAN COMMERCIAL LINES 1125 notification from them that a contract problem exists Vice President Bullard acknowledged he had notified the vessel captains that no union agents would be al lowed aboard unless accompanied by a representative of the Respondents which would mean someone other than a captain or pilot assigned to that vessel A memorandum dated November 6 was sent by Re spondents vice president Bullard and Respondents port captain Ivey to all management personnel informing them that because of the Union s request for an election they had to stop allowing all union agents visitation rights to their vessels except to administer the contracts An arbitration award dated December 2 1980 based on a grievance filed by the Union on November 1 held that Respondents violated article V section 4 of the contracts by their October 31 letter revoking the visiting privileges of the union agents and limiting the purpose to contract administration and enforcement and requiring management representatives to accompany the union agent Respondents by letter dated July 31 1980 notified the Union in pertinent part as follows Meetings between S I U agents and employees are to be confined to the Crews Lounge forward deck locker or head of the boat When it will not inter fere with galley activities or meal time meetings may be held in the galley Analysis and Conclusions The pleadings allege that Respondents since about September 16 have refused to recognize and bargain with the Union in violation of Section 8(a)(1) and (5) of the Act by unlawfully repudiating the contract provi sions allowing authorized union representatives access to Respondents vessel which Respondents deny and also assert as a defense the issuance of an arbitration deci sion 80 An additional defense asserted by Respondents at the hearing was that if any incidents of denial of access did occur they were de minimis The General Counsels position was that the union representatives were denied access by Respondents by either refusing to allow them aboard the vessels or inter fering with this right by restricting them to certain areas of the vessel while aboard Although the General Coun sel further contends the right of access was violated by refusing to allow union representatives to conduct safety inspections such contention is rejected because as previ ously stated it was not established that the Union pos sessed the right to conduct formal safety inspections Section 8(a)(5) of the Act prohibits an employer from refusing to bargain collectively with the representative of its employees It is well settled that unilateral changes in terms and conditions of employment without bargaining with the union representing such employees violates Section 8(a)(5) of the Act Amsterdam Printing & Litho Corp 223 NLRB 370 (1976) affd 559 F 2d 188 (D C Cir 1977) and NLRB v Katz 369 U S 736 (1962) Under the law terms and conditions established by a collective bargain ing agreement survive its expiration and the employer has a continuing obligation to apply them absent giving timely notice of the intention to modify a condition of employment and the union fails to timely request bar gaining or impasse is reached during bargaining over the proposed change Bay Area Sealers 251 NLRB 89 90 (1980) enfd as modified 665 F 2d 970 (9th Cir 1982) The contracts here by their terms provide union repre sentatives access to Respondents property and vessels to contact the employees at anytime except that men at work shall not be interfered with unless these men are properly relieved Such broad provisions which are clear and unambiguous on their face not only give union representaives the right to board Respondents vessels and contact employees but also places no limitation on either where union representatives can meet with em ployees aboard the vessels or what they can discuss with them To impose restrictions on union representatives re quiring them to only meet with employees at certain lo cations aboard the vessels is not only contrary to this contractual right but interferes with their right to con tact all employees aboard and talk to them either individ ually or in groups Respondents claim that in some in stances restrictions were justified to prevent confronta tions between union patrolmen and crewmembers is un warranted absent as here any evidence these union pa trolmen engaged in any such unlawful acts while visiting Respondents vessels Notwithstanding these contractual provisions the evi dence supra establishes from December 31 to about August 4 1980 Respondents did not allow union repre sentatives on board any vessels operated by them and be tween November 1 and April 9 1981 excluding the period from December 31 to August 4 1980 Respond ents through their officers captains and pilots on 8 dif ferent occasions interfered with or prohibited union pa trolmen from boarding 7 different vessels and on 17 other occasions aboard 14 vessels interfered with their access rights by restricting them to such areas aboard the vessels as the head of the vessel crews lounge or deck locker By so doing I find Respondents since November 1 have unlawfully refused to bargain with the Union by unilaterally repudiating the contract provisions allowing union representatives access to Respondents vessels thereby violating Section 8(a)(5) and (1) of the Act The total number of such incidents found coupled with the period visits were excluded altogether negates the de minimis argument raised by Respondents which is re jected G Repudiating the Hiring Hall Provisions Article I section 2 of the contracts provide as fol lows so Because the arbitrator s decision dated December 2 1980 dealt only with Respondents October 31 letter set forth supra and not with those specific instances of denial of access involved here such defense is reject ed The Union agrees to furnish the Company with capable competent and physically fit persons when and where they are required to fill vacancies neces 1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sitating the employment of employees covered here under in ample time to prevent any delay in the scheduled departure of any vessel covered by this Agreement To assure maximum harmonious rela tions and in order to obtain the best qualified em ployees with the least risk of a delay in the schea uled departure of any vessel covered by this Agree ment the Company agrees to secure all of its per sonnel through the hiring halls of the Union The Company is required to give the Union at least twenty four (24) hours notice in order for the Union to have sufficient time to comply with the above If for any reason the Union does not furnish the Company with capable competent and physically fit persons when and where they are required to fill such vacanies in ample time to prevent any delay in the scheduled departure of any vessel covered by this Agreement the Company may obtain employ ees from any available source in which case the Union shall be notified in writing within three (3) days of such hiring Section 6 of this same article incorporates the unli censed shipping rules and sets forth the order of refer ring employees according to their seniority classifications by the Union Respondents Jeffersonville office ships all deckhands lead deckhands and cooks with the exception of those employed through the Canal Division who are shipped through the Harahan Louisiana office Chief engineers assistant engineers and trainee engineers are shipped by Superintendent of Boat Maintenance Breen s office The shipping procedures used by the Jeffersonville office as described by Supervisor Eve covers current employees old employees employees referred by the union hiring hall and new employees Current employees are those employees presently employed without a break in their seniority which runs from their most recent date of hire Old employees are those employees who previously worked for Respondents but have since had a break in their seniority which occurs when employees are dis charged quit and leave the vessel short handed fail to show up for an assignment without notifying the office what happened and have been gone for over 6 months without working New employees are those employees who have never worked for Respondents previously Under this procedure the names of both current and old employees who contact the crew dispatch office seeking work have their names logged in as being ready to return to work When jobs are available taking into consideration the location time and job classification they are then assigned to such jobs subject to the ap proval of the captain of the vessel who is contacted Crew dispatchers may also contact for jobs regular employees81 whose acquired time off penod82 is up and employees requested by the captains of the vessels No distinction is made between shipping current and old employees except during the period between Decem ber and March when work is slow because vessels are laid up Then only current employees are shipped unless that group of names is exhausted whereupon old employ ees are then shipped New employees are hired by applying directly for em ployment with Respondents or being referred by the union hiring hall Respondents port captains can also hire employees in emergencies Emergencies as defined by Eve exist when there is short notice and the vessel is operating short handed and it is necesary to hire the person for the job because of time and they do not have anyone else available After Respondents have exhausted hiring all the cur rent and old employees available for work who have contacted them as well as those employees whose ac quired time off period is about up and who they contact to see if they are ready to go back to work early Re spondents then contact the union hiring hall to hire em ployees if there is sufficient time to do so Eve estimated it takes approximately 24 hours to go through the union hiring hall which includes contacting the Union getting the name of the person to be referred contacting the captain of the vessel for approval and assigning the person If there is not sufficient time to use the union hiring hall Respondents hire employees off the bank i e without going through the union hiring hall During the period between September 1 and Decem ber 30 Respondents Jeffersonville office hired approxi mately 154 employees as new unit employees without calling or attempting to call the union hiring hall Prior to September Respondents with subsequent knowledge of the Union frequently hired a substantial number of employees off the bank without first contacting the union hiring hall to fill such job vacancies and the Union has been aware of such conduct since at least 1977 Respond ents prior to September 1 also frequently hired a substan tial number of employees through the union hiring hall and have done so at least since 1977 According to Supervisor Eve every 10 days to 2 weeks up until December 31 when they stopped Re spondents would furnish the Union with a list of the emergency hires containing the employees names and their addresses telephone numbers job classifications social security numbers and the vessels they boarded along with the dates Respondents also furnished the Union with the boat payroll records which showed the vessels that the employees were working on and the dates 81 Regular employees are those so designated by the captain of the vessel to work regularly on their vessels Although they are regularly employed on boats and without breaks in their seniority they do not ship through the union hiring hall which the parties agree is consistent with the contract provisions 82 Employees work so many days on the vessels and then are entitled to so many days off AMERICAN COMMERCIAL LINES From September 1 until about April 1 1981 Respond ents Jeffersonville crew dispatch office procured from the union hiring hall four employees in October and one employee each month in December 1979 and in January and March 1981 From December 30 until January 1 1981 that office did not call or attempt to call the union hiring hall to secure any employees in the units repre sented by the Union but did contact or attempted to contact the Union s hiring hall twice in January 1981 and once each in February and March 1981 to obtain em ployees During the period December 30 to July 14 1980 Respondents hired numerous individuals as new unit employees without securing or attempting to secure those employees through the union hiring hall Respondents records including payroll records em ployment cards and crew change logs reflect for Janu ary 1 1978 through December 31 1979 Respondents crew dispatch office rehired approximately 469 employ ees83 after their seniority had been broken during this period whereas only approximately 93 such employees were rehired through the union Firing hall during that time Various employees including James Taylor Gregory Brisco George Robertson and Raymond Webb called as witnesses by Respondents as well as numerous em ployees presented as witnesses by the General Counsel all acknowledged obtaining their jobs by contacting Re spondents directly instead of going through the union hiring hall Port Agents Tellez Martin and Pillsworth and Patrol men McGee and Carter all acknowledged being aware in 1979 or earlier that Respondents were hiring employees without utilizing the union hiring hall Patrolmen James McGee and Carter recorded in their reports about employees being hired off the bank McGee also testified in July he had discussions with Union Port Agents Pillsworth and Tellez and Patrolmen Carter and Dean Corgey about seeing what they could do to get Respondents to go through the union hiring hall and in June or July they were instructed to keep up with how many employees were being hired off the bank McGee said Union Officials Joey Sacco and Mike Sacco also told him Respondents were hiring off the bank Both Port Agents Brown and Worley acknowledged they knew Respondents were hiring off the bank and Worley said he met with Respondents on numerous oc casions about it Port Agent Pillsworth testified in early April on learn ing that Respondents were hiring employees off the bank including those employees who had breaks in se niority he not only discussed it with union officials in cluding Port Agent Worley but also contacted Respond ents crew dispatcher Humbert about it a couple of times a week up until Humbert became traffic coordina tor in October Humbert s excuses were he did not know it or it was a slip or an emergency Humbert acknowledged having about 10 conversations with Pillsworth over a 3 month period during the 81 Respondents hired approximately 13 of these employees after first contacting the union hiring hall which could not furnish them 1127 summer of 1979 about employees being hired off the bank rather than through the union hiring hall and that Pillsworth may have accused him of violating the con tract According to Humbert he informed Pillsworth it had always been their practice and when Pillsworth questioned him about it he referred him to Vice Presi dent Bullard To the extent the testimony of Pillsworth and Hum bert conflicts I credit Worley who I find was a more credible witness than Humbert Respondents about September 18 applied for member ship in the academy and since December 3 have been a member of it The academy which is 11 years old and has approximately 50 members is a training center for the inland waterways towing companies Its exclusive di rector is Thomas Tooker Respondents under arrangements with the academy pay membership dues and are also required to either accept 37 graduates a year for employment or pay the academy $750 for each of the 37 employees they do not hire Respondents also recruit and sponsor employees to attend the academy which trains them and bills Re spondents The sponsored employees are counted toward the 37 employees Respondents are obligated to hire Between about November 26 and May 23 1981 Re spondents sponsored approximately 221 individuals who attended the academy On August 27 the Board in its decision in Seafarers (American Barge Lines) 244 NLRB 641 (1979) held the Union s hiring hall procedures to be unlawful84 because they caused signatory employers to discriminate regard ing new hires and illegally prefer union members over nonmembers This finding of a violation resulted from provisions contained in the Unlicensed Shipping Rules which are incorporated in the hiring hall procedures in the contract whereby seniority which is used by the Union for job referral purposes was based on work ex perience for signatory employers who also had agree ments with the Union containing union security provi sions Vice President Kilroy stated that because of the Board s decision Respondents decided not to use the Union s hiring hall and to cease making contributions to the union hiring hall trust fund until the matter was cor rected and the Union had complied with the Board s de cision Kilroy as reflected by a memorandum dated August 31 had recommended such action be taken be cause using the hiring hall might expose Respondents to charges at the Board and possible financial liability About August 31 Respondents ceased using the union hiring hall to secure new personnel and ceased making contributions to the union hiring hall trust fund Howev er on about October 16 Respondents resumed making such contributions to that fund retroactive to and includ ing September 1 The Seafarers Appeals Board 85 to comply with the Board s decision amended the Unlicensed Shipping 84 The contracts contained savings clauses 85 Its members who are appointed are comprised of representatives from the Union and employers No representatives of Respondents are on the board 1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rules 88 to delete those provisions that the Board found made the Union s hiring hall procedures unlawful It also increased seniority ratings for graduates of the Lunde berg School Its action contained an effective date of Oc tober 1 The Seafarers Appeals Board notified the Union by letter dated October 3 of the amended unlicensed ship ping rules enclosing a copy stating they were effective immediately On October 10 during a contract negotiating meeting between Respondents and the Union Respondents were provided a copy of the amended unlicensed shipping rules along with a copy of the Seafarers Appeals Board s action making such changes and a letter from the Union to Respondents dated October 5 informing them the new rules were effective immediately and compliance was ex pected with the provisions of the rules and related con tractual provisions regarding their employees and all new hires The changes in the amended unlicensed shipping rules were pointed out and discussed at this meeting Accord ing to Vice President Kilroy they promised to review it and Union Executive Vice President Drozak requested their response by Monday Kilroy also testified that Bul lard mentioned they needed new procedures to get the people sent from the union hiring hall and that he and the crew dispatchers were tired of all the aggravation they were getting from people at the hall concerning ap plication of the rules about registering and shipping people and a new procedure was going to have to be worked out to get the people on the boats quicker Drozak informed Port Agent Brown to get together and work out a new procedure to get the people out of the halls Vice President Kilroy by memorandum to Respond ents vice president Bullard and Port Captain Ivey dated October 12 advised them he had reviewed the new rules found them to be in compliance with the Board s decision and recommended the dispatchers begin using the union hiring hall That same day Kilroy sent Drozak a copy of this memorandum with a letter stating he was recommending that the Company begin using the union hiring hall According to Vice President Bullard prior to receiving this memorandum he and Kilroy had re viewed and approved the amended unlicensed shipping rules On October 15 Kilroy stated he informed Drozak as far as he was concerned the amended unlicensed ship ping rules had been changed to comply with the Board s decision and contingent on Brown and Bullard being able to work out new procedures on getting people out of the hall he had no problem telling their people to use the hall Drozak informed him he expected Respondents to comply with that Bullard testified that after October 12 when he re ceived the memorandum from Kilroy he instructed the dispatchers to resume using the union hiring hall How 86 Sec 9 of these rules vests the Seafarers Appeals Board with the right to amend such rules at any time and in any manner consistent with the requirements of applicable law and the collective bargaining agree ments between the parties ever according to Bullard prior to October 31 they stopped using the hiring hall again Although he said he thought the reason was because no agreement had been reached between Respondents and the Union on the use of the hiring procedure he acknowledged he had previ ously testified on June 19 1980 that he ceased using the hiring hall because the Company did not have an agree ment with the Union On October 16 Vice President Bullard sent Port Agent Brown a letter to confirm their conversation that morn ing regarding Respondents use of the hiring hall Among other things Bullard asserted in his letter that they had agreed on were that the hiring hall would inform the company representatives of the employees eli gible to be shipped and the company dispatcher would directly contact the individual for routing to the vessel and also that the individual to be shipped would be the one closest to the vessel and employees would not be shipped from union facilities to catch vessels at any ex tended distances Brown in a response letter dated October 22 disputed they had agreed on those matters and stated under the shipping rules the hiring hall dispatchers are given all necessary information by the company dispatcher to fa cilitate shipping of the individual to the vessel and in ac cordance with the contract all job openings shall be re ferred to the union hall Drozak in a letter to Kilroy dated October 23 referred to his October 5 letter to Kilroy and their October 15 conversation and again stated the Union expected Re spondents to comply with the contractual provisions and amended shipping rules pertaining to the hiring of all new employees Kilroy denied that prior to receiving this leter from Drozak the Union had made a formal demand that they use the union hiring hall On October 25 Union Vice President Charles Mollard filed a grievance aganist Respondents alleging that since October 10 they had refused to call for new hires from the union hiring hall as contractually required In a response letter (dated October 29) to the gnev ance addressed to Port Agent Brown Kilroy reminded Brown that they did not receive the revised shipping rules until October 10 which were submitted to them for their approval before they were to resume using the hiring hall and after doing so he had recommended using the hiring hall again However he pointed out Bul lard and Brown had disagreed over the procedures to be used to implement Respondents use of the hiring hall which he said was to be a basis for the resumption of Respondents use of the hiring hall An arbitration award dated December 2 1980 sus tained the Union s grievance finding Respondents violat ed the contract by refusing to secure employees through the union hiring hall after October 26 which it found was the date the amended shipping rules actually became effective No remedy however which was left up to the parties was provided The arbitration board did retain jurisdiction should the parties not be able to agree on a remedy AMERICAN COMMERCIAL LINES On June 2 1980 Region 14 of the Board notified the Charging Party in that case that the Union had complied with the Board s Order regarding its hiring hall and that case was thereby closed Analysis and Conclusions The pleadings allege that Respondents since about Oc tober 31 have unlawfully refused to recognize and bar gain with the Union in violation of Section 8(a)(1) and (5) by repudiating the hiring hall provisions contained in the contracts which Respondents deny and assert as a defense the arbitration decision 87 The evidence found shows that about August 31 Re spondents ceased using the union hiring hall to secure the new employees This resulted from a Board decision finding certain provisions of the Unlicensed Shipping Rules which are incorporated as part of the contracts between Respondents and the Union to be unlawful Following the amerdment of these rules by the Seafarers Appeals Board which possesses such authority under the rules to comply with the Board s decision by deleting those provisions found to be unlawful the amended unli censed shipping rules that contained an effective date of October 1 were furnished to Respondents on October 10 Respondents as reflected by their own records reveal that after reviewing such amended rules they agreed such rules complied with the Board s decision and rec ommended Respondents resume use of the union hiring hall Although Respondents also claim that resumption of using the union hiring hall was conditioned on Re spondents and the Union working out new procedures to get employees sent from the hiring hall the imposition of such a condition if made would not relieve Respondents of their legal obligation to comply with the hiring hall provisions of the contracts which were no longer unlaw fill Although the Respondents assert as a defense in their brief that under the saving clause the parties had to agree to a substitute provision for the one found unlaw ful the defense is rejected because the Seafarers Appeals Board possessed the authority to amend the unlawful provisions which it did The hiring hall provisions of the contract which are clear and unambiguous on their face provide for an ex clusive hiring hall whereby Respondents are required to secure all their unit employees through the union hiring hall except in those cases when the Union is unable to furnish them Another exception although not contained in these provisions allows those employees who are reg ularly employed aboard the vessel without breaks in their current seniority to be employed directly by Re spondents Although the evidence reveals Respondents have with the Union s knowledge hired employees di rectly without contacting the Union s hiring hall as re quired under the contracts the Union had protested such 87 Because the arbitration decision does not provide for a remedy itself I find the Spielberg criteria set fourth supra for deferring to arbi tration have not been met as it would not effectuate the purposes or poll Gies of the Act to defer here Spielberg Mfg Co 112 NLRB 1080 (1955) Accordingly this defense is rejected 1129 conduct to Respondents representatives who offered various excuses for doing so Notwithstanding the union hiring hall provisions with the amended unlicensed shipping rules were no longer unlawful after early October the evidence establishes during the period from September 1 through March 1981 Respondents except for hiring through the union hiring hall four employees in October one employee in Decem ber and one employee each in January and March 1981 and contacting or attempting to contact the union hiring hall on four other occasions in 1981 did not contact or attempt to contact the union hiring hall to secure em ployees During this same period Respondents hired nu merous new unit employees including approximately 154 between September 1 and December 30 Based on the foregoing evidence I find Respondents since about October 3188 have unlawfully refused to bar gain with the Union by unilaterally repudiating the hiring hall provisions contained in the contracts thereby violating Section 8(a)(5) and (1) H Respondents Refusal to Bargain with the Union Prior to negotiations Respondents had voiced certain complaints to the Union during a meeting held in Febru ary attended by Vice President Kilroy and Vice Presi dent of Operations Lay for Respondents and for the Union then Executive Vice President Frank Drozak Secretary Treasurer DiGiorgio Vice President Camp bell Vice President Mollard Port Agents Worley and Brown and a couple of representatives for the trust funds Kilroy and Lay complained about the procedures required for applying for vacation benefits and their ad ministration costs and eligibility requirements that em ployees had problems collecting health and welfare bene fits with claims being denied because they should have used public health service hospitals 89 graduates of the Lundeberg School were not being properly trained the union hiring hall was not able to supply Respondents needs for employees and the union initiation fee was too high and about employee turnover which they blamed on the Union s initiation fee and vacation and health and welfare plans Drozak mentioned trying to work out changes involving the health welfare and vacation plans and the hiring hall and taking a look at the Lundeberg School Drozak indicated the initiation fee for employees on inland rivers could be reduced to $300 by putting the issue on a referendum to be voted on in next year s union election Following this meeting the Union in April submitted proposals to Respondents concerning changing certain benefit and contribution rates in the contract which re suited in an agreement between the parties On September 27 Vice President Kilroy met with Union Executive Vice President Frank Drozak and Vice President Mollard during which Kilroy renewed corn plaints about the health welfare and vacation plans em ployee turnover initiation fee and the hiring hall Kilroy 88 This is the date alleged in the pleadings 89 Drozak explained that because employees were entitled to United States public health services they could not be covered under the plan 1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also complained about the $100 clinic card fee the Union charged employees who registered that nobody under stood the standard contract language and claimed from the LM-2s90 filed by the Union which he had obtained from the Department of Labor in July or August that the Union was taking millions of dollars out of the trust funds for reimbursed services Drozak contended the Union was entitled to reimbursement from the funds for services rendered Mollard also accused Respondents of trying to avoid their obligation to bargain on MAC which Kilroy claimed was a separate company 91 On September 28 Kilroy Vice President Bullard and Manager Ivey met with Union Executive Vice President Drozak and Vice President Mollard at which time van ous problems were discussed This meeting was held at the suggestion of Union General Counsel Schulman to discuss the status of MAC and all the problems between the parties 92 Drozak acknowledged there were problems with the health and welfare and vacation benefits and employee turnover Mollard suggested a program could be set up for Respondents at the Lundeberg School Bullard mentioned the Company had some serious problems that had to be resolved stating they were going to have to find a new way of doing business and the old days of negotiating an agreement on cocktail napkins were over Kilroy contended that their biggest problem was em ployee turnover which had reached staggering propor tions 93 and they were bringing in four or five people per year to cover one job and claimed the biggest causes for turnover were minimum wages for a 12 hour day a $600 initiation fee and that employees were having diffi culty collecting their health welfare and vacation bene fits Kilroy pointed out their records on vacation indicat ed the Union was paying less than 50 cents on each $1 contributed on behalf of employees for vacations How ever Mollard questioned the figures and explained the employees could have received their vaction benefits by going o work for another company Kilroy contended the Union encouraged employees to leave and said they were going to have to work out an arrangement where by the employees would be covered under the health and welfare plans and be able to go to the hospital clos est to their homes for medical services Kilroy claimed the union hiring hall was only supplying Respondents with 25 percent of the employees and that the Respond ents were recruiting the other 75 perent from their own sources When Drozak mentioned he thought the vaca tion problem had been put to rest in the spring when 90 Labor Organization Annual Report Form LM-2 filed by the Union covering the period January 1 through December 30 1977 reflects under schedule 13 the Union received from other sources $2 948 165 which in cluded $2 487 739 from a reimbursement of shared services Item 12 of the report lists 14 wholly owned subsidiary organizations of the Union the nature and purpose of which were to hold title and operate or lease property owned by the Union at various locations 91 Prior to the meeting Vice President Kilroy had discussions with Union Port Agent Pillsworth and Union General Counsel Schulman about MAC 92 Respondents contend this was the first negotiation meeting 92 Previously Respondents had prepared a report on employee turnov er and the previous year Vice President Kilroy had discussed employee turnover with officials of other companies they worked out a new procedure Kilroy while ac knowledging it had made it easier to collect claimed the plan still was not paying out near the amount of money contributed on behalf of the employees Mollard stated overtime was the employees biggest beef and inquired whether overtime could be entered on the deck log However Bullard denied this would speed up payment Drozak gave as one of the reasons they were taking a hard line on the contract was because of the engineers petition and stated the Union was not going to change its philosophy or way of doing business and that they could still work things oLt but they had to take a tough line The visitation rights of union agents aboard vessels were discussed and Bullard requested a list of authorized union agents and stated he did not want more than two agents on board at a time Drozak agreed to send him the list and to limit it to two agents aboard at a time On the Lundeberg School Mollard suggested a special program could be put together for training Respondents employees there Kilroy claimed the employees who graduated from the school did not know what to expect and it was hard for them to adjust to towboat life and those from the east coast were not going to ride boats with boys from Alabama and Arkansas Kilroy said any program worked out at the school had to be quick and to the point Kilroy objected to the present 12 week training program which he said was too long with too much built in time for such things as housekeeping main tenance and cooking duties and too much Mickey Mouse stuff involved He also said trainees did not need 2 weeks of lifeboat training or to spend a lot of time marching but would be better off being taught to handle lines ratchets and be put on a 6 hour on and 6 hour off schedule Mollard suggested that possibly deckhands from Respondents could be part of the training program with the Lundeberg School picking up the expenses The grievance procedures were discussed with Kilroy men tioning one of the biggest problems was the way union agents handled grievances stating they did not set out the details that on overtime grievances required Respond ents to spend an enormous amount of time researching records Mollard suggested employees could turn in their overtime in duplicate so they would have a copy in case the other claim got lost Bullard also complained the Union had forever to file a grievance while the Compa ny only had 72 hours to answer it and stated they had to have some cutoff date on grievances Bullard mentioned he was attempting to get the captains more involved so they could get problems handled on the boats rather than in the office Drozak asked Respondents for their proposals on problem areas including turnover hiring hall grievance procedure and overtime On the hiring hall Kilroy men tioned they did not want to be involved in anymore Marvin Myers 84 cases and claimed the hiring hall was not doing its job and said everytime new union agents came in they wanted to change the procedure which 94 This reference was to the Board s decision discussed supra regard ing the hiring hall AMERICAN COMMERCIAL LINES 1131 caused a lot of aggravation regarding crew dispatching Kilroy stated they wanted a procedure whereby they could get a man to the boat in the quickest time possible with the least amount of expense and aggravation and said they had more aggravation getting the 25 percent of the new employees from the union hall then getting the other 75 percent of the employees Kilroy also stated they wanted some input on the shipping rules Drozak informed them they were working on some new shipping rules which they would give Respondents at the next meeting Mollard inquired whether MAC was part of the nego tiations with Kilroy taking the position it was not part of or an issue in negotiations Drozak also asked Bullard about MAC with Bullard explaining it was a new Com pany that had done work in New Orleans which they bought along with all their boats and the employees came with them Mollard insisted that MAC was part of the negotiations that Respondents objected to When Kilroy suggested the engineers be taken out of the units and made supervisors Drozak s position was that they would fight Respondents all the way on that Ivey and Bullard more than once mentioned they were going to have to negotiate an agreement for the benefit of the Company and the Union taking into consideration the employees Regarding wages Kilroy said they could no longer go on paying minimum wages Bullard claimed that all the Respondents were doing were training new employees for other companies because the employees were not going to work for Respondents for 12 hours a day for minimum wages and pay a $600 initiation fee when they could work for more money and not have to pay an ini tiation fee at a nonunion company On contract language Kilroy stated executing and signing another standard contract was not going to solve the problem Mollard contended the only contract the Union was going to sign was the blue book95 because that was what the employees wanted at the Union s Piney Point conference Kilroy said it did not work and Mollard explained the purpose of the standard contract was so that all union agents had the same agreement to work with Kilroy protested that the Union employees and the Company did not understand it and stated they had to get a simple short contract written in plain Eng lish so that all employees understood and they wanted them to have copies Drozak informed Respondents to make proposals on what they thought would solve Re spondents problems and the Union would make a pro posal at the next meeting on the shipping rules and a training program 96 Respondents presented witnesses who testified con cerning various complaints made to Respondents cap tains pilots or other supervisory personnel in 1978 or 1979 which Respondents claim were relied on in formu lating their bargaining positions Employees Jim McKim Robert Spence Grover Smith Victor Numez and 95 The standard union contract which comes in a blue binder is re ferred to as the blue book 99 The above findings are based on the undisputed testimony of Vice President Kilroy which I credit Shawn Kelly complained about the vacation plan includ ing delays or failure to pay vacation benefits due not paying the full amounts contributed to the plan and the procedures required and inconveniences caused in apply ing for benefits Employees Barry Feagin Robert Spence and Grover Smith complained the initiation fee was too high and Shawn Kelly complained about not getting anything for the initiation fee or dues paid Em ployees Dennis Shupe George Rooertson John Ham Thomas Crouch Victor Numez John Lewis and Shawn Kelly complained about the medical benefits Their com plaints included failure of the plan to pay claims the re quirement to use the public health service rather than their own doctor and dissatisfaction with the plan itself Two employees Barry Feagin and Thomas Crouch complained about the Lundeberg School with Crouch contending it was not teaching students the right things and Feagin claiming graduates did not know what they were doing Respondents captains Edward Marsh Edmund Conk lin James Philpott Wallace Howard Rudy York David Shirah and William Kelly and Vice President Bullard and Traffic Coordinator Humbert all stated employees had complained to them Those employees whom they identified Jackie Wohner Garland Bradley Jimmy Coleman Bill Burtell McKim Steven Cavindish Grover Smith Ed Gurtler Cecil Morgan Sean Kelly Shawn Kelly and J R Blankenship all complained about the vacation plan including the procedures re quired in applying for benefits and delays or failure to pay vacation benefits due Employees Ronnie Mattingly Carroll Meadows Harold Knowles Victor Numez and Steven Cavindish complained about the medical plan in eluding problems encountered in applying for and get ting claims paid and having to use the public health serv ice rather than their own doctors Employees Cecil Morgan Randy Morgan and Raymond Randolph com plained they were dissatisfied with paying out money and not getting anything in return Regarding the Lunde berg School Vice President Bullard stated captains and pilots criticized the training program and Captain Marsh testified one graduate placed his feet on Marsh s deck and informed him he did not have to work During this same period various employees stated they voiced similar complaints to union representatives Dennis Shupe George Robertson John Lewis and Shawn Kelly complained about the medical plan includ ing the failure to pay benefits in full having to use the public health service rather than their own doctors and dissatisfaction with the plan Barry Feagin and Shawn Kelly complained the initiation fee was too high and Kelly also claimed dues were too high Barry Feagin contended certain types of training should be given at the Lundeberg School Regarding the vacation plan Grover Smith complained about the Union taking money out of his vacation pay while Shawn Kelly criticized the procedure used and the length of time involved for get ting vacation pay Union representatives including Port Agents Augustin Tellez James Martin and Pat Pillsworth and Patrolmen James McGee David Carter Dean Corgey Kenneth 1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD McGregor and Marshall Novack all acknowledged that during this same period employees had made similar complaints to them These employees Phil Rutrop Wil Liam Bader Jim Bates Francis LeBlanc Dennis Shupe John Jackson Michael Dent and Barry Feagin and un identified crewmembers on one vessel complained the initiation fee or dues were too high dues should not be taken out until the initiation fee was paid or that the mi tiation fee should not be taken out of every check Robert Wallace George McMonigle John Denlip Johnny Ham and Jackie Wohner complained about the vacation plan including delay or failure to pay vacation benefits or not receiving the contributions themselves Howard Hardy Hams Crouch James Taylor Dennis Shupe John Denlip Bill Melton Dennis Jones and Floyd Comple and an employee named Jim along with unidentified crewmembers of several vessels complained about the medical plan Their complaints were failure or delays in paying claims objections to having to use the public health service rather than their own doctors and poor services provided by the public health service Jim Pagent Jackie Wohner Ken Thompson Cannon and unidentified crewmembers aboard one vessel complained about contract language not being clear containing too much petty stuff or wanting easier to understand Ian guage Union Vice President Mollard sent the Respondents vice president Bullard a letter dated October 2 confirm ing certain agreements made at the September 28 meet ing and reflects they had agreed to commence negotia tions either the week of October 8 or 15 A negotiation meeting87 was held on October 10 Present for Respondents were Vice President Bullard Vice President Kilroy and Manager Ivey The union representatives included Executive Vice President Frank Drozak Vice President Mollard 98 Patrolman Donny Anderson and Port Agents Brown and James Martin The Union presented a proposal for a deckhand train ing program for barge line operations This covered an 8 week period with the last 4 weeks consisting of work aboard Respondents vessels Mollard suggested the pro gram was to meet Respondents need for manpower and training and to attempt to resolve the turnover problem Bullard objected that using the entrance to the dry docks at Piney Point Maryland as a simulated lock was not suitable for providing lock training because the locks actually used were different Kilroy suggested the pro gram was too long and that a 6 hour on and 6 hour off schedule should be used and 2 weeks were sufficient to learn the basics Under the program as explained by Mollard and Drozak the trainees while in training both in the school and aboard the vessel would receive a stipend of $15 a week from the Lundeberg School which would also outfit them no contributions would be made on their behalf and they would not be entitled to any benefits Bullard s response was that as crewmembers they had to 97 The findings set forth below pertaining to what occurred during ne gotiations are based on the proposals exchanged and the testimony which I credit of Vice President Kilroy Port Agent Brown and Attor ney Monblatt concerning the meetings they attended 98 Mollard last worked for the Union in December be on the payroll and questioned whether they would be covered under the Jones Act which Kilroy said they had to check out Kilroy inquired whether the processing procedure which Mollard said they were working on would remain the same but the Lundeberg School or the welfare plan would pay for the physical examinations Transportation costs for graduates of the Lundeberg School were discussed with Drozak suggesting it be ac complished on an annual rather than a monthly basis as in the past Drozak mentioned graduates of the program would have their initiation fees waived for 6 months after which the fees would be paid at the rate of $5 a week Kilroy then inquired about waiving it for all new em ployees for 6 months which Drozak rejected Kilroy suggested that this might be a problem because dues and initiation fees had to be uniformly required Pursuant to Bullard s inquiry about costs of the new program Drozak denied the Union would be seeking any increases in contributions to the Lundeberg School Hiring Hall Trust Fund or the Transportation Institute The position given by Drozak and Brown was the Union would keep these programs The subject of employee turnover which Bullard at tributed to the minimum wages and the $600 union initi ation fee was discussed Drozak had previously indicat ed nothing could be done about the initiation fee until the union election when the issue of reducing it to $300 for these type employees by amending the Union s con stitution could be voted on The amended unilateral shipping rules and the nonre ferral list were also discussed at this meeting as previous ly mentioned supra Bullard also stated the union hiring hall was not work ing and was not able to supply Respondents with enough employees or within the time limits because there were not any employees registered and mentioned problems he was having with various union agents Bullard contended employees from the hiring hall would not stay on the vessels but left to work for other companies The Union s position on MAC as expressed by Drozak was that under the contract and the law MAC was part of the unit and was included in the negotiations Kilroy also questioned the $100 fee charged an em ployee for a clinic card as costing too much money and said eliminating it would result in more individuals being at the hiring hall registered and available for work Drozak explained the purpose which was to keep cer tarn types of undesirables out of the hiring hall Bullard mentioned the Company was not satisfied with the graduates of the Lundeberg School and said some thing to the effect the Company was seriously consider ing starting its own program which was one of its goals in negotiations According to Kilroy Bullard also informed them at the meeting they were there to negotiate a contract on Inland Tugs The next negotiation meeting was held on October 23 Brown Martin and Anderson along with several rank and file employees on the Union s negotiating committee AMERICAN COMMERCIAL LINES were present for the Union while Respondents were represented by Bullard Ivey and Kilroy Both parties presented written proposals The Union s proposal contained 47 items for ACBL and an additional item for a safety committee was added at the meeting Kilroy questioned Brown about the reason ACBL was listed on the Union s proposal stating it did not operate any boats that were operated by ITC ABL and SOT and they were only there to negotiate a contract for ITC including the River and Canal Divisions However Brown s response was that it referred to all the compa vies including MAC and they were there to negotiate Kilroy denied they were there to negotiate for MAC Brown and Kilroy agreed bargaining would include the engineers but that any final agreement being reached was dependent on the outcome of the pending RD case involving the engineers Bullard who was using one of the existing contracts questioned the use of the standard contract language in the contracts complaining it had been used a long time and nobody knew what it meant and mentioned it had to be changed to reflect what they did and the way they did things Brown suggested that Bullard who agreed to do so go through the contract and tell them which pro visions Bullard wanted taken out but stated those that the Union considered would be gutting their contracts could not be taken out During the meeting most of the items of the Union s proposals were discussed Item 1 provided for a substantial wage increase for li censed and unlicensed employees which Brown defined to mean one in line with industry standards Bullard s re sponse was that they were not there to negotiate for the industry but for ITC Item 2 provided for a work schedule of 30 days on and 20 days off for licensed personnel and a day for day schedule for unlicensed personnel 99 Brown s explana tions for the day for day work schedule was the mem bership wanted it and many companies in the industry had it Bullard objected to the day for day schedule be cause it made the employees part time and he remarked he did not think the employees were interested in it Item 3 provided for overtime at double the hourly rate which Brown described meant after 12 hours and while the employee was off watch Kilroy proposed Re spondents would increase the overtime rate from the present 13/12 of the hourly rate to time and a half the hourly rate Brown indicated they would consider it and respond later Item 4 provided for penalty time at the rate of time and a half the hourly rate Bullard s position was Re spondents had never paid penalty time but were paying time and a half overtime for penalty type work that they would continue doing and they wanted penalty time provisions deleted from the contracts The Union indicat ed it would respond later Item 5 provided for a cost of living adjustment (COLA) without a ceiling Brown asserted a COLA was 99 The work schedule at that time was 40 days on and 20 days off with employees receiving full wages for days worked but none for their days off 1133 needed as protection against inflation in a 3 year contract without which the Union could only agree to a 1 year contract Respondents position was that it was opposed to a COLA because it was difficult to control labor costs Kilroy pointed out they did not have a COLA in their contract and said the Consumer Price Index was not a true indicator of the cost of living and mentioned that wage increases Respondents would propose might eliminate the need for a COLA Bullard rejected a 1 year contract stating they were there to negotiate a 3 year contract which was necessary to figure costs in bidding on towing contracts Kilroy also mentioned they would not agree to a COLA and it was a strike issue Item 6 provided for an increase in vacation of $1 per day in each of the first second and third years Brown informed them it was their intention to bring vacation benefits up to industry standards but no changes were contemplated in the processing procedure Bullard men tioned he did not care about industry standards except in negotiating a contract for ITC Kilroy related Respond ents objections to the present vacation plan and said they were going to make proposals to change it These objections were that the employees had problems collect ing their benefits which he had brought to the Union s attention but which still existed the vacation trust fund was paying out less than 50 cents on each dollar contrib uted by the Respondents the plan s eligibility period was unjustified the administration costs of taking $1 36 out of the $5 25 a day contribution was excessive and Respond ents were losing money because of the eligibility period and employee turnover Kilroy indicated Respondents would propose an incentive type plan whereby employ ees would be paid automatically by Respondents on a quarterly basis which he suggested would cause the em ployee to stay with the Company or lose something if he left Bullard claimed it would cut down on aggravation and turnover if the Company paid the vacation benefits to the employees Brown objected to any company plan and mentioned the investment the Union and membership had in its own plan and said they would not agree to any plan other than the union plan Brown in response to the conten tion employees were only receiving 50 cents out of every dollar contributed by Respondents suggested em ployees could be receiving their vacations while em ployed elsewhere Item 7 provided for an increase in welfare benefits to plan 1 major medical to $7 42 per man per day Item 8 provided for an increase in the pension plan to $440 plus early normal pension to $11 39 per man per day The $11 39100 includes plan 1 major medical and $440 early normal pensions Brown explained these pro posals would increase the benefits to have employees covered by a major medical plan and a $440 per month pension at age 62 after 15 years service or at age 55 after 20 years service Kilroy questioned the pension eligibility period de scribed by Brown as being misleading raised objections 100 This figure according to Brown includes the health welfare and pension plans 1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to the existtng health and welfare plan and stated the Respondents would prepare their own plan These objec tions included problems employees had collecting their benefits the plans failure to cover employees 101 who except in emergencies are required to use the United States Public Health Service medical facilities Respond ents losing control over costs employee turnover 102 the eligibility period resulting in the Union or the trust fund receiving the major benefits and that they saw no benefit to the employees Kilroy indicated their plan would be company paid cover employees and have a shorter eligibility penod-which would reduce costs with any savings to be used to increase employee bene fits Brown objected to any company paid or administered plan stating they could only agree to the standard union plans The first item 9 which pertained to recognition pro vided for a unit of all vessel crew personnel except cap tains and pilots and/or mates employed by the Company and its subsidiaries and affiliates Brown defined the word company to include all companies operated by ACBL including MAC which he said was included in negotiations Kilroy rejected the proposal as being unac ceptable and mentioned it was a strike issue when pro posed in 1976 and was now and said they would not give the Union recognition for all subsidiaries and affili ates Kilroy said the Union represented ITC it was were there to negotiate a contract for ITC and it was not there to negotiate for MAC The second item 9 provided for prepaid flight tickets to and from the vessel on completion of a full duty tour Brown explained employees did not always have money to purchase tickets Bullard indicated it was a high cost item but promised to investigate and respond later Item 10 provided for maintenance and cure under which employees entitled to it would receive two thirds of their daily base wages should they become sick or in jured on the vessel Respondents promised to submit a proposal to increase the existing $8 a day rate Item I1 provided for two additional holidays includ ing Good Friday and Lincoln s Birthday Although Bul lard or Ivey commented there were already enough hole days they promised a response later Item 12 provided for a wage advance up to $50 for every duty tour However this item was dropped after Bullard explained the Company was already providing wage advances Item 13 provided for the Company to furnish gloves and 50 percent of the cost of safety shoes Respondents indicated they would submit a proposal on safety shoes Item 14 provided for subsistence of $5 for breakfast $7 for dinner $10 for supper and $45 per night for lodging Respondents indicated they would submit a proposal on it Item 15 which provided for an increase to 6 days off with pay because of death in the family was discussed tai Kilroy said Brown indicated for an additional $1 per day the em ployee could be covered under the Union s plans 102 According to Kilroy in 1978 through 1979 Respondents hired 2000 employees a year to fill 450 jobs on any one day in the fleet Item 16 provided for a full day s pay when relieving or being relieved Respondents indicated they would submit a proposal on part days that an employee worked Item 17 provided for two engineers on vessels of 5600 horsepower or above The Union s reason was that it re quired more work whereupon Bullard s response was that they looked at it as an increase in the costs to do business Item 18 provided for a missing man s wages to be split among employees performing his work 103 Anderson ex plained the Union wanted to return to the original Ian guage and complained the captains did not always assign the overtime work Respondents rejected the proposal and pointed out that this had been a constant source of aggravation Ivey s position was that an employee was paid a day s pay for a day s work and he could only do one mans work and also that the captain could not always assign the work because members refused over time work Item 22 provided for 48 hours notice or 48 hours pay when vessels were laid up Bullard rejected this as being unacceptable because the captains did not always have such notice and operations personnel had no control over it but offered instead to give the crew as much notice as the captain got Item 23 provided for increasing shipwreck compensa tion to $600 Kilroy promised to offer a proposal on it Items 25 and 26 provided for compensating the cook at the overtime rate with a minimum of 2 hours when taking on stores and for 1 hour overtime when taking in ventory and ordering stores The Union explained that the cook had to get up at night to take on stores and Kilroy promised to submit a proposal on it Item 27 provided for automatic dishwashers on all ves sels constructed after July 1 1977 Following Bullard s explanation that there had been an agreement a long time ago not to have dishwashers because they used too much water the Union subsequently dropped this item Item 28 provided for a 10 per month clothing allow ance for cooks which Kilroy promised to submit a pro posal on Item 29 provided for replacing or repairing as soon as possible any galley equipment broken This provision was subsequently agreed on following Bullard s sugges tion to add and convenient after the word possible Item 30 provided for bulletin boards in the crews lounge for crew access Brown explained they wanted a place for posting information to the crew and so that union representatives on visiting the vessels would have knowledge of notices sent to the crew that they could discuss with them Respondents indicated they would consider it but that there did not appear to be a problem Item 31 provided for walkie talkies on all vessels Brown indicated that they were needed for safety rea sons However Bullard questioned the need pointing out some boats had intercom systems while others had walkie talkies Bullard also objected that this was a high expense item and in the past a lot of walkie talkies had 103 This had been provided for originally in art V sec 12 of the con tracts however in August 1977 the contracts were modified to pay over time to crewmembers performing such work instead AMERICAN COMMERCIAL LINES 1135 been lost or stolen and he did not want to make such a provision mandatory in the contracts A suggestion by the Union for a checkout system for the walkie talkies was rejected Suggestions for submitting it to a safety committee or handling it through a memorandum of un derstanding were raised but no agreement was reached Item 32 provided for crew notices to be sent to the Union in New York St Louis Paducah and New Orle ans Respondents agreed to send notices to St Louis and New Orleans Item 33 provided for first aid kits in the engineroom galley and deck locker Brown contended there were not enough first aid kits on the boats and Martin said em ployees had complained they were not stocked Bullard s position was that when the boats were put into service they had fully stocked first aid kits however employees took them home or threw them away and it was impossi b'e to keep them stocked Bullard pointed out that the captains kept fully stocked first aid kits in their rooms which were available Item 34 provided for replacing work vests with sterns type life jackets The Union complained the sea horse life vests they were using would catch on equipment and were dangerous while the sterns type vests were more buoyant and tended to keep persons afloat Bullard men tioned their expense and claimed the sea horse type could take more wear and tear Item 35 pertaining to safety provided replacing guards on all tire type clutches in the engineroom The Union complained when clutches exploded they destroyed the present clutch guards causing metal to fly through the engineroom Bullard promised to examine the problem and respond later Item 36 provided for soundproofing the engineers quarters on vessels of 5600 horsepower and over Bul lard s position was that Respondents had used all the ma tenals presently available to soundproof boats and blamed the noise on vibrations caused by the engines Brown indicated he would check into a new material made of compressed seaweed used to absorb sound that he had heard about Item 37 provided that crewmembers would be paid penalty time for replacing stationary rigging Bullard s response was employees were already being paid over time pay for that type work which they would continue paying but they wanted penalty time provisions deleted from the contracts Item 38 provided paying penalty time to the deck de partment when working outside their department Bul lard disagreed with this provision and mentioned deck department employees helped employees in the enginer oom and sometimes cleaned it Item 39 pertaining to safety provided that a crew member would not be out on the tow alone The Union s reason was that this was dangerous at night Respond ents position as expressed by Bullard and Ivey was that this would be impossible with small crews and explained the procedure was for the person on the tow to call or flash his light so that the captain would know he was there Item 40 provided for the cook to be in complete charge of and responsible for the galley food prepara tion and ordering galley necessities Item 41 provided for the engineer to be in complete charge of and respon sable for engineroom duties and ordering supplies for it Item 45 provided for the lead deckhand to assist and su pervise all unlicensed deck personnel These three items were all discussed The Union claimed the captains would change supply orders made by the cook and engi neer and countermand orders by the lead deckhand Bul lard pointed out the captain was responsible for the vessel and costs Following a suggestion by Respondents to change the language of item 40 limiting the cook s au thonty that item was subsequently agreed to Item 42 provided crewmembers for safety purposes shall clear off excess cargo on decks of barges and be paid penalty time for it Ivey indicated it was a good idea except it would be a problem to get the crew to do it because they refused overtime work Item 43 pertaining to safety provided the company to supply at least one oxygen tank and two lifeboats per vessel The Union s reason for the oxygen tank was that employees who went into tank barges could be over come Bullard rejected this proposal because employees were never supposed to go into any tanks and because the vessels each carried two johnboats which were suffi cient Item 44 provided all overtime sheets would be turned into the captain on a weekly basis by the boat delegate Kilroy explained that the engineers sent their overtime to Breen rather than to the captain and suggested they insert the word deck before overtime Bullard also indicated deck overtime was already being turned into the captain According to Brown an agreement was reached on this provision Item 46 provided that on all boats that had no engi neer that one deck crewmember would perform normal routine maintenance in the engineroom and be paid 10 percent above his daily pay rate Respondents indicated they would submit a proposal on employees required to do engine maintenance work Item 47 provided for a safety committee comprised of company and union representatives to handle safety pro cedures The parties agreed that any decision reached would be by the Company and the Union Respondents written proposal covered various items On wages it stated they intended to abide by the counsel for wage and price stability guidelines with any wage in creases beyond such guidelines being based on produc tivity increases Bullard explained he knew they could no longer pay minimum wages and retain employees and they would make some response on wages but any over all increases would be in line with President Carter s guidelines which Kilroy mentioned was 7 percent Brown indicated he did not feel such guidelines affected their negotiations at the time On health welfare and pension the proposal stated they intended to make specific proposals for health and welfare insurance and major medical to cover employees and their dependents with such plans maintained by the Company at no cost to the employees with deductibles and eligibility determined by the parties Kilroy men tioned their proposal would certain a shorter eligibility 1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD period and would be administered by Respondents and insurance people at Jeffersonville where employees or their dependents could get assistance on claims Brown s position was that the Union could not agree to any company paid or administered plans but only on the standard union plan On vacations the proposal stated that they intended to make specific proposals on a company operated vacation plan providing for automatic payments to employees with the amounts and eligibility determined by the par ties Both Kilroy and Bullard expressed dislike for the Union s vacation plan in the contracts and Kilroy men tioned they were open to discuss the level of benefits and eligibility Kilroy claimed their plan would reduce turn over by having employees identify with and stay with the Company Brown informed them the Union intended to keep its vacation plan Concerning the hiring hall the proposal stated Re spondents intended to offer specific proposals to change the hiring hall procedure with contributions based on a referral basis rather than on a per man per day basis Re spondents position as expressed by Bullard and Kilroy was that the union hiring hall did not work and the Union did not need one because Respondents operations differed from deep sea type operations and they thought employees would be better off with the money them selves Brown disputed this claiming the nature of the buss ness required a hiring hall for the needs of employees and suggested any problems with the hiring hall could be worked out Kilroy mentioned all Respondents wanted to do was to give the Union the first opportunity to present them with an employee which he claimed the Union had not been able to do in the past and what they would pro pose would be a prefer and refer system with the Union having first shot at referring new employees Brown rejected Respondents plan as unacceptable stating they would only agree to the Union s plan Respondents also claimed that in reviewing the LM-2s it came to their attention the Union had a number of sub sidiary building corporations and it was their belief these corporations were being supported by and able to pur chase real estate with hiring hall trust funds and the funds were merely being used to pay for real estate the Union was buying Concerning the Lundeberg School the proposal stated they would make a specific proposal on the utilization and contributions to it Kilroy complained that the school to which they were paying 50 cents per man per day or about $56 000 a year was a flop and it was unable to train anyone for their business and he criticized the curriculum Kilroy suggested they would be willing to discuss any program such as Drozak mentioned but it had to be quick to the point and meet the Respondents needs and that the arrangements for paying for it would be negotiable Brown s position was the Union would keep the Lun deberg School Concerning travel expenses the proposal stated they intended to make specific proposals on travel allowances Respondents indicated they were considering a system either lump sum or otherwise whereby an employee could receive his money quicker and cut down on ad ministration Respondents written proposal also indicated a new ar rangement had to be made on checkoff and deductions for dues and initiation fees as well as to eliminate and re instate certain other contract provisions On November 1 Kilroy had a conversation with the Union s general counsel Schulman during which van ous issues were discussed Kilroy complained about turn over which he blamed on minimum wages the $600 ini nation fee and trust funds not paying benefits to employ ees Kilroy accused the union trust funds of ripping off the Company and employees claiming only the Union was benefitting by taking money out of the trust funds as reimbursement for shared services Kilroy complained the hiring hall which costs them did not work and they would not get employees and criticized the Seafarers appeals board for changing the shipping rules without any imput from them Kilroy contended the Union had done nothing to re solve these problems which they had brought to the Unions attention Kilroy criticized the eligibility period in the Union s vacation plan He said they were going to attempt to solve some of the problems on the basis of what they had put together as far as what they thought costs may be and they did not see any way of contnbut ing to these trust funds Schulman mentioned the Union had a lot invested in the plans and the hiring hall Kilroy accused the hiring hall trust funds of paying the costs of union building and real estate mentioning the LM-2s showed all subsidiary building corporations the Union owned and said it was obvious to them those buildings were paid for by the trust funds Kilroy accused the Transportation Institute of being under the beck and call of the maritime trades mention ing something was going to have to change Schulman said there was no way the Union was going to sign a contract with Respondents or any company without the trust funds and if they did not reach an agreement with them they had no alternative but to take them on On being asked to explain Schulman said if they did not reach an agreement they had to make an ex ample and lesson of their Companies and intended to make them the J P Stevens of the inland rivers Kilroy indicated that would not solve the problem and insisted there had to be a change in the way they did business Schulman said there was no way he could let their Company get out from under the union contract as far as contributing to the trust funds because every other em ployer would be asking for the same type of treatment Kilroy claimed the Lundeberg School had not been able to do anything for them for the money they paid and all he could see was that the Union used the fund there for its own particular purposes to conduct meet ings and sway politicos out of Washington They discussed the legality of the trust funds for the Lundeberg School and the union hiring hall Kilroy claimed as he read the statute there could be a trust fund for apprenticeship training but as he understood the rules the school did not qualify because under a quali AMERICAN COMMERCIAL LINES 1137 feed apprenticeship program under the Department of Labors rules and regulations the apprentice does com mercially valuable work Regarding the hiring hall Kilroy claimed they did not think it was a legal 302 trust fund although it had been set up that way and may be characterized as a benefit because they did not see it as a benefit to the employees with their Company Schulman informed him they had been set up that way for years and were going to stay that way A negotiation meeting was held on December 17 Present for the Union were Brown Martin Anderson General Counsel Schulman and several committeemen Respondents were represented by Bullard Ivey Kilroy and Norm Whitlock who was in charge of boat and barge maintenance Schulman s position on MAC was that it was an accre tion to the unit and was part of bargaining Kilroy reject ed this claiming it was a separate company that they had purchased and as a successor they were obligated to honor MAC s contract with the Association Kilroy agreed to bargain on the engineers but not in a fleetwide unit as sought by the Union Kilroy voiced various complaints about the existing contracts These included that neither the employees nor Company understood the contract employees were having problems collecting their health and welfare ben efits and were forced to used U S Public Health Service hospitals the union hiring hall did not work was not needed could not supply new employees and only the Union was benefiting Respondents were not going to be bound by the Seafarers Appeals Board or its shipping rules and the Lundeberg School was a flop and was unable to provide training for employees Bullard also blamed employee turnover on minimum wages the Unions $600 initiation fee and benefits that did not pay while Schulman attributed it to the caliber of Respondents wheelhouse personnel and indicated turn over was an industry problem Brown agreed with Bul lard that low pay was a cause and said the initiation fee issue would be put on a constitutional ballot for next year s union election Respondents presented written contract proposals that were discussed These proposals were for a 3 year con tract Under article 1- Recognition -Kilroy explained they wanted a contract for the engine department cover ing all chief engineers probationary engineers or trainee engineers and a contract for the deck department cover ing all lead deckhands deckhands and cooks for the contracted companies ITC River and Canal Division SOT and ABL and the recognition clause would ex clude from the units all other subsidiaries and affiliated companies Trainee engineers were also being taken out of the deck department and placed in the engine depart ment because they had a greater community of interest with them and assistant engineers were being reclassified as probationary engineers to avoid the problem of their claiming the pay rate of chief engineer when relieving them Kilroy in response to Schulman s inquiry about using ACBL as the employer indicated they would agree to one employer contingent on the Union agreeing to two units Brown and Schulman rejected the proposal with Schulman asserting recognition had to be with the one employer and all employees in one unit and covering all affiliated and subsidiary companies and companies owned or operated by them all parent companies and joint ven tures Under article 2- Management 104-Respondents re served the exclusive right to direct the work force in cluding the right to hire classify assign suspend pro mote demote and discharge for proper cause to trans fer and the right to release employees from duty because of their lack of work or for any legitimate reason or any other condition of employment not specifically pro vided for in this agreement with the justness of demo tion suspension or discharge subject to the grievance procedure Respondents also reserved the right to exer cise unilaterally any function of management not express ly limited by the agreement Schulman asserted such releasing should be by senion ty and the function of management should be subject to the contract and past practice Although Kilroy indicat ed there were no objections to inserting such provisions his position was that the Respondents determined who to hire and employ and they would classify employees ac cording to occupation and continue the practice of cap tains designating the lead deckhands Schulman s protests that under the shipping rules Respondents could not assign engineers to the deck department was rejected by Kilroy who informed them as far as they were con cerned the shipping rules did not apply to the boats but applied to hiring halls which the Union could run any way it wanted and Respondents would assign employees to boats and classifications as the need arose Schulman also objected that the provision did not cover transfer of boats chartering or subcontracting of work Both Schulman and Brown rejected the proposed management rights provision which one of them de scribed as being a pretty tight zipper clause Kilroy suggested Respondents would reconsider this provision if the Union was willing to make concessions in other areas Under article 3- Union Security -Kilroy while in dicating they had no objections to union security and would continue it contended they wanted to shorten the language Schulman commented that the last paragraph which pertained to protecting employees from discharge for failure to become union members when the Company had reason to believe their rights were being denied could be deleted and a sentence could be inserted about the first paragraph being administered in accordance with applicable law Although Kilroy agreed Schulman made no response earlier Brown had stated they had had the same clause for 17 years and preferred to keep it Article 4- Check Off/Hiring Hall/Access -was dis cussed The section on checkoff while providing for dues checkoff did not like the existing contracts also provide for initiation fees Kilroy s position was that they had no problem with dues checkoff but they could not 104 The existing contracts did not contain management nghts clauses 1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD deduct initiation fees when different standards were ap plied to different employees This referred to an earlier suggestion by the Union whereby it had indicated initi ation fees for all graduates of the Lundeberg School could be waived for up to 6 months Kilroy proposed if the Union would agree to waive the initiation fees for all employees for up to 6 months Respondents would agree to check off initiation fees in line with the $5 a week su gested earlier by the Union Both Brown and Schulman rejected this proposal claiming they could only accept the standard language in the existing contracts These provisions did not contain any waivers for Lundeberg School graduates The section on the hiring hall unlike the exclusive union hiring hall in the existing contracts only provided that the Company agreed to prefer the facilities of the union hiring hall and that the hiring hall would inform company dispatchers of those employees eligible to be referred It further provided if the union hiring hall was unable to supply the name and telephone number of an individual within the proximity of the vessel or if that employee was unacceptable that the Company would obtain new employees from its own sources The section unlike the existing contracts limited reimbursement to the union hiring ball trust fund to the number of referrals made by the union hiring hall During discussions of the union hiring hall Bullard s objections were they could not get employees when they called and those they got were mostly nothing but bums and winos who only worked enough to get money to return to bars Bullard contended they were not going to have the union hiring hall because it had not worked he did not like it and he wanted employees working for ACBL to be totally loyal to the Company and not the Union and the ones they shipped worked for the Union rather than the Company Kilroy s objections were the union hiring hall did not benefit the Company or em ployees they wanted a procedure to get employees from the hall to the boat in the shortest possible time with the least expense and without problems encountered by the shipping rules which they did not irtend to be bound by preference was giN en to Lundeberg School gradu ates the $100 clinic card fee was excessive and the Union was referring too many people on the nonreferral list Kilroy questioned the legality of the hiring hall trust fund under Section 302 of the Act claiming the practice was to pay for union subsidiary building corporations Kilroy explained under their proposal the Union would have the first opportunity to refer new employees and it would be paid a reasonable amount for each employee referred Both Schulman and Brown rejected the proposal and their position was to retain the hiring hall provision Ian guage in the existing contracts Kilroy rejected Brown s suggestion that any problem with the hiring hall could be resolved by the clarification committee giving as reasons Brown and Bullard had not been able in October to work out any new procedures The section on vessel access which limited it to ad ministering the contract rather than contacting the em ployees as in the existing agreements was discussed with Kilroy pointing out they had to have control over who had probationary clauses went on the boats Browns position was the Union wanted the same provisions as in the existing contracts On the section pertaining to Respondents furnishing the Union information on new hires and employees sepa rated Brown s position was not to change the procedure they already had Article 5- Seniority -provided for a 30 day proba tionary period for unlicensed personnel during which employees could be terminated without being subject to the grievance procedure Kilroy explained a probation ary period was necessary to evaluate new employees pointing out the contracts for licensed personnel con tamed such provisions Although Kilroy contended it was their position they still had a probationary period at ITC because it had never been worked out Schulman disputed this claim on the basis it was not in the existing contract 105 The Union rejected this proposal which Brown con tended would permit Respondents to hire employees at lower rates then discharge them and hire others Kilroy pursuant to Brown s inquiry about what would happen to an employees seniority when moving from one subsidiary to another said it would start all over and rejected Schulman s suggestion that seniority should be coextensive with all the companies Following Schulman s suggestion that a section per taming to rehiring returning servicemen could be delet ed which Bullard indicated was unnecessary Kilroy agreed they could delete it but said he would get back to the Union Article 6- Grievances -provided grievances to be filed within 5 working days after the alleged grieved act occurred Kilroy criticized the existing grievance proce dure for not containing a time limit for filing grievances contending they had to have a cutoff date and were not opposed to any reasonable period Brown objected to time limits because an employee could forget to file or not notify the Union resulting in the employee losing money Kilroy claimed the Union s procedures in filing grievances were sloppy and failed to set out the facts causing enormous amounts of adminis trative work for Respondents and suggested grievances be handled on the boats The Union mentioned the prob lem on the boats was the captain throwing the grievance in the trash Kilroy s suggestion that they switch from the Ameri can Arbitration Association (AAA) to the Federal Medi ation and Conciliation Service because AAA was cum bersome and costly was opposed by Brown who claimed AAA was fairer Schulman s proposal to amend the grievance proce dure to permit employees to be paid damages by Re spondents for denying them representation was rejected by Kilroy Brown s position was the grievance procedure should remain the same as in the existing contracts Article 7- Equal Opportunity-was discussed with Brown indicating the Union had no problem with it but 105 Prior contracts unlike the existing contracts with ABL and ITC AMERICAN COMMERCIAL LINES 1 1139 the Union first wanted to check and ascertain whether it was legal to hire a person under 18 years of age for mar itime work because the existing contracts had contained a provision prohibiting hiring persons under 18 years old Under article 8- Strikes and Walkouts-Brown ob jected to not including the word lockouts in the title of the article as in the existing contracts Kilroy ex plained they were attempting to shorten and get rid of boilerplate language and pointed out that provision pro hibited lockouts Brown rejected the proposal insisting on keeping the language in the existing contracts On article 9- Clarification Committee -Schulman objected to the words due to the extent and diversity of operations of the Company which Kilroy indicated would be deleted if there were any serious objections to it Brown indicated the Union could agree to that and the clarification committee could be used to solve day to day problems as far as application of the contract and the hiring hall Article 10- Substitute Provisions/Savings Clause- as explained by Kilroy was similar to the provisions in the existing contracts except for the insertion of adminis trative agency along with legislative or judicial bodies holding such provisions invalid The Union s position was that it would get back to Respondents on it Article 11- Leave of Absence -contained similar provisions on leaves of absence as in the existing con tracts Kilroy pursuant to Brown s inquiry explained leaves of absence would be approved by both the Com pany and Union as in the past Brown mentioned the Union had proposed 6 days as opposed to Respondents 3 days which Bullard indicated were too many The Unions position was it would get back to Respondents on it Article 12- Holidays -provided for eight holidays as in the existing contracts This was not discussed but the Union referred Respondents to the Union s proposal which asked for two additional holidays Article 13- Transportation/Subsistence -provided for a $100 travel allowance when reporting to a vessel and on leaving a vessel after proper relief and a full *our of duty It also provided $25 per night for lodging and for meals allowed $3 each for breakfast and dinner and $7 for supper Under the existing contracts employees were reimbursed for travel expenses and were allowed $20 per night for lodging $2 for breakfast $3 for dinner and $5 50 for supper Bullard explained that they wanted a program under which employees could get their travel money quickly and suggested payment of a lump sum everytime em ployees completed a tour of duty either to or from the boat Brown s objection was that under their program em ployees getting off the boats near their homes would make money while those employees whose transporta tion cost money would lose money Kilroy indicated Re spondents would get back to the Union and maybe work out another arrangement The health and welfare proposal provided for a health and welfare group insurance plan106 through a private carrier covering employees and their dependents to become effective December 31 with new employees being covered after 90 dad s of continous employment This included life insurance weekly indemnity insurance and medical expenses Kilroy claimed they could not continue the existing plan because of the costs and em ployee dissatisfaction with getting their claims processed and benefits paid and pointed out their plan unlike the union plan covered the employees who had to use the United States Public Health Service According to Kilroy their investigation of the costs of duplicating the Union s plan including increased costs and benefits with major medical coverage was estimated at $2 per man per day Kilroy indicated they were willing to discuss the level of benefits they had proposed The Unions position was that it would get back to Respondents on it The wage rate proposed effective December 31 for chief engineers varied from $95 to $105 depending on the horsepower of the vessel probationary engineers up to 2 years $75 trainee engineers and lead deckhands $52 deckhands and cooks $45 and deckhands for the first 30 days $40 107 It also provided how employees who worked less than a full day would be paid and provided that employees working in excess of 12 hours per day would be paid 1 1/2 times their hourly rate Effective December 31 1980 the proposed wage rates would increase as follows chief engineers $100 70 to $106 depending on the horsepower of the vessel proba tionary engineers up to 2 years $79 50 trainee engineers and lead deckhands $55 10 deckhands and cooks $47 70 and deckhands for the first 30 days $42 70 On December 31 1981 these proposed rates would increase as follows chief engineers $106 70 to $112 35 depending on the horsepower of the vessel probationary engineers up to 2 years $84 25 trainee engineers and lead deck hands $58 40 deckhands and cooks $50 55 and deck hands for the first 30 days $45 55 Kilroy explained Respondents proposal and reasons for the changes The engineers classification was changed to keep assistant engineers from claiming chief engineers pay for standing their watch which Brown contended they should get paid for if they did the work Regarding probationary employees Brown objected claiming it had been tried before and did not work it held down wages by paying a lower rate and probation ary employees were not covered by the grievance proce dure Kilroy offered to discuss the probationary rates Kilroy s reason for increasing trainee engineers wage rates was because they had probably been lead deck hands before and it would not be fair to pay them less 106 Under the existing contracts the Seafarers welfare plan provided for welfare and similar benefits 107 The pay rates under the ex sting contracts were as follows chief engineers $8169 assistant engineers $60 64 trainee engineers $33 08 lead deckhands $44 10 cooks $38 59 deckhands $37 49 and tankerman deckhands $4190 1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Union s position was that it would get back to Re spondents on it The proposed incentive bonus provision provided for payments on a quarterly basis of incentive bonuses to all employees for days they worked the previous calendar quarter with rates on a per day basis varying from $4 to $7 depending on their classification and provided that no bonuses would be paid to employees who terminated their employment prior to payment dates Kilroy cnti cized the Seafarers vacation plan in the existing con tracts claiming the eligibility period was unjustified and the administrative costs were excessive Kilroy described that under their plan which was pro posed in place of the Union s plan which he said they did not intend to participate in employees would be paid automatically without them having to file applications or any processing The pension proposal provided that Respondents would continue contributions to the Seafarers pension plan trust fund in an amount necessary to maintain the level of present benefits however such contribution rates would not exceed $3 per man per day worked Kilroy proposed that the Union would keep the pension system but claimed that they had to justify the costs and were concerned about administration fees and money the Union took out of the trust fund for reimbursed services charged by the Union for processing health and welfare vacation and pension claims and had to justify to them selves that such payments were legitimate and not pay ments from a company to the Union Respondents re quested the Union to furnish a cost proposal for continu ing the union pension plan at benefit levels for normal retirement at age 62 after 20 years or on the day contn bution rate for a pension benefit of $220 $330 and $440 a month and give them whatever figures they had be cause they had to have justification that the figures were actuarially correct and that was what it would cost The Unions position was that it would get back to Respondents and it promised to get some figures During the meeting Brown contended that it was their understanding there had been an agreement at the Octo ber 10 meeting on the Lundeberg School Transportation Institute and the union hiring hall trust fund when Drozak informed them there would be no increases con cerning them Kilroy disputed this claiming they had res ervations as to the value and legality of those funds Schulman at the end of the meeting contended only that the standard union contract containing the standard language and trust funds was acceptable to the Union That evening after the negotiation meeting had been held Union Port Agents Brown and Martin had a con versation with Respondents vice president Kilroy and Manager Ivey Kilroy after stating they had a serious problem as far as health welfare and pension benefits were concerned because they were too costly suggested if the Union could compete with the prices Respondents estimated health and welfare benefits were going to cost them they could stay with the union health and welfare plans However any agreement to continue such plans would require coverage of the employees and Respond ents wanted to meet with the trustees of the plan to de termine how they were going to be administered and the plans could not go on being administered like they were Kilroy contended at the very minimum the fund could have employees process claims at local offices rather than at New York and avoid problems with documenta tion and lost applications Brown indicated they would obtain rates and let them know The following day December 18 another negotiation meeting was held attended by the same persons as the previous session During the meeting the parties went over various provisions contained in one of the existing contracts stating their positions on those provisions The Union also presented its wage proposals and certain items of the Union s original proposal were discussed On article I section 1- Recognition -the Union s position was the same as contained in its October 23 pro posal Schulman described that this included one employ er and one unit covering ACBL and all the contracted companies their affiliates and subsidiaries MAC joint ventures and vessels chartered for more than 90 days Respondents rejected this proposal and the inclusion of MAC and Kilroy indicated if the Union wanted one em ployer it had to agree to two units but stated Respond ents would never agree to a fleetwide unit which had been a strike issue in 1976 and was then On chartering Kilroy denied any of the contracted companies chartered vessels and explained although ACBL did charter he denied it had any employees On article I section 2- Union Furnishing Employ ees -the Union s position was that the language would remain the same as in the contract with the amended shipping rules and they would not agree to a prefer and refer basis as in Respondents proposal Respondents re ^ected the Union s proposal with Bullard complaining that the hiring hall had not worked and the problem was getting employees to the boats Both Bullard and Kilroy denied they would agree to the required 24 hour notice to the Union as in the contracts to furnish employees contending the Company did not always have such notice to give Kilroy described the system they wanted was one to get employees to the boats in the shortest period of time with the least expense Kilroy criticized the shipping rules indicating they were not going to have them Respondents also indicated they wanted total com pany loyalty and wanted employees working for the Company and not the Union On article I section 3- Union Security -the Union s position was that the provision would remain the same Brown when questioned about payment of dues during the lag period between the execution of a contract and its effective date suggested any problems could be worked out On article I section 4- Company Rejection of Em ployees -the Union s position was that the provision would remain the same Kilroy complained that the Union did not always notify the crew dispatchers who was being shipped and mentioned certain employees were not to be shipped On Brown s response that under the shipping rules they have to be shipped if registered Kilroy informed them if they were on the nonreferral list they were not to be sent back to the Company AMERICAN COMMERCIAL LINES On article I section 5- Equal Opportunity -the Union s position was that the provision would remain the same except Brown wanted to check and see whether it was legal to hire employees under 18 years of age in the maritime industry On article I section 6- Seniority -the Union s pro posal was that the provision would remain the same but with the amended shipping rules Respondents rejected the Union s proposal Kilroy contended that they were not going to get in a position of putting union seniority in the contract and becoming liable when the Union did not ship employees out of the hiring hall Kilroy men tioned they did not care how the Union awarded seniori ty or shipped employees as long as it was legal but said they did not want to become involved in the Seafarers appeals board s procedures or cases On article I section 7- Indemnification -the Union s position was that the provision would remain the same On article II- Grievances and Arbitration Proce dure -the Union s position was that the provision would remain the same except Schulman proposed adding language to give the arbitrator additional author ity to grant relief for repeated contract violations Re spondents rejected the proposal which Kilroy claimed had proved impractical in the past and described the ad ditional language proposal as being ridiculous Kilroy contended they had to have a cutoff date for filing griev naces wanted to have the delegate and captains to try to and settle grievances on the boat and desired to switch from the AAA to another form of arbitration On article III- Dues CheckOff and Initiation Fees - the Union s position was that the provision would remain the same On article IV- Company Seniority Layoffs Promo tions and Transfer -the parties agreed under section 1 Company Seniority to drop subparagraph F dealing with the positions of tankerman bargeman and barge captain because it did not pertain to Respondents oper ations They also agreed under section 2 Promotions to delete the reference to junior engineers because the Respondents had no junior engineers With those excep tions the Union s position was that the provision would remain the same Kilroy disputed Brown s position that trainee engineer graduates of the Lundeberg School should be given preference in promotions claiming the school was not able to train employees and there was no reason for such preference Article V- General Rules -contained various sec tions Among those sections mentioned which the Union contended should remain the same were section 1 No Strikes or Lockouts section 2 Picket Lines section 3 Substitute Provisions-Conformity to Law Savings Clause and section 4 Union Representation Howev er Schulman additionally wanted the arbitrator to be given the authority to assess the Company $25 per day when the employee was denied union representation with Kilroy taking the position that such rights were dif ferent in the maritime industry section 5 Leave of Ab sence section 6 Annual Physical section 7 Clanfi cation Committee section 8 Union Delegate section 9 Harry Lundeberg School which Bullard or Kilroy 1141 said they did not plan to participate in section 10 Safe Working Conditions along with those in the Union s original proposal and section 13 Vessels Aground On section 11 Work in Higher Classification Bullard as serted they were already paying the higher rate of pay On section 12 Sailing Shorthanded the Union s pose tion was that it wanted to return to the original intent of the provision which had been changed from splitting the wages of the missing crewmembers among these employ ees performing the work Kilroy objected it was con trary to past practice and Ivey contended a man could only do one man s work and employees would continue to be called to perform such work on an overtime basis On section 14 Maintenance and Cure the Union pro posed increasing this from $8 to $ 16 Although Respond ents offered a counterproposal of increasing it to $12 the Union rejected it On section 15 Death in Family the Union proposed increasing 3 days leave with pay to 6 days leave with pay Respondents position was to keep the 3 days On section 16 U S P H S Hospitals and Clinics section 17 Vessels Sales and Transfers sec tion 18 Holidays Transportation and Living and Working Conditions and section 19 Wages and Man ning Scales the Union s position was these provisions would remain the same Appendix B to the contract was also discussed On ar ticle I Holidays the Unions position was that the provision would remain the same except two additional holidays as provided for in item 11 of the Union s origi nal proposal would be added On article II Transports tion the Union s position was that the provision would remain the same Although Brown suggested striking paragraph F which related to Lundeberg School gradu ates relocating within the geographic area of the Compa ny s operation there was no response from the Respond ents Bullard indicated the use of prepaid flight tickets was still being investigated On article III Overtime the Union s position was that the provison would remain the same except overtime would be paid at double the hourly rate as proposed in item 3 of its original propos al Under section E relating to authorization of overtime Respondents pointed out that Breen authorized overtime for the engineers whereas the captains authorized it for deck department employees On article IV Penalty Time Bullard s position was that the provision should be deleted because the Company did not pay penalty time but paid overtime for such work which it would continue doing The Union made no response On article V Living Conditions which the Union wanted to retain with certain additional benefits Bullard proposed under section 2 increasing subsistence from $2 to $3 for breakfast $3 to $5 for lunch $5 50 to $7 50 for supper and lodging from $20 to $25 The Union did not re spond Under section 3 Crew Equipment Bullard pro posed paying the cooks a clothing allowance of $10 every 30 days aboard the vessels This was agreed to by the Union which had proposed $10 per month in item 28 of its original proposal Under section 5 Shipwreck Compensation Bullard proposed increasing this from $300 to $400 per man The Union which in item 23 of its original proposal had sought an increase to $600 indicat 1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ed it would get back to the Company On article VI Work Schedules and Special Working Conditions under section 2 Swing Time a proposal by Bullard to change the schedule of 40 days on and 20 days off to 30 days on and 15 days off was agreed to by the Union On section 3 Ordering Replacement and No Vacancy while Brown s position was that the provision would remain the same Kilroy s position was that the Company could not agree to pay wages to an employee ordered when no vacancy existed On section 4 Crew Changes the Union in item 16 of the original proposal had requested a full day s pay Respondents suggested paying employees who boarded the vessel before noon a full days pay while not paying the employees who boarded afterward Brown s position was that the provi sion would remain the same On section 6A Customary Duties Bullard s position was the Company would not agree to any customary duties regarding what deckhands or engineers would or would not do and proposed 10 cents above the daily rate for deckhands assigned to the engineroom to do enginework The Union indicated it would get back to the Company on the proposal On section 6B Maintenance Work Bullard indicated there was no problem restricting painting and chipping while the vessel was underway but stated there was no reason such work could not be done when the vessel was in layup status Brown agreed unless the crewmembers were sleeping Bullard contended that the second para graph requiring certain type work to be performed during daylight when practical was impossible however Brown s position was that it would remain the same On section D Remaining Aboard Bullard complained em ployees would leave the vessel and get drunk and not be able to work but indicated there would be no problem of them going to town if they were ready to perform their duties on their return The Unions position was that the provision would remain the same On section E Pumping Barges Bullard maintained this was standard operating procedure and there was no reason to include it in the contract On section 6E Cleaning Quarters Bullard s position was that the Company paid overtime for such work rather than the penalty rate as in the con tract Brown s position was that the provision would remain the same On section G Sanitary Work Bul lard proposed deleting a provision about paying the pen alty rate On section 6H Entering of Tanks and Barges Bullard claimed this was not necessary because the policy was that employees were not to enter tanks for any reason On section 61 Cleaning and Stripping Bullard s position was that the Company did not carry oil or have oil barges and the cleaning rate was at the overtime rate rather than the penalty rate On section 6J Tank Cleaning Bullard s position was that employees were not supposed to clean those tanks On section 6K Cleaning Barges Bullard s position was that the Com pany did not carry oil barges and there was no reason for the provision Brown suggested the reference of tan kerman should be taken out of the contract because this did not pertain to the Company s operation On section 6L Work in Bad Weather Bullard defined what was meant by maintenance work and proposed raising the temperture from 32 to 40 degrees F which the Union agreed to The Union s position on section 6M Work Ashore section 6N Digging Deadmen and section 60 Galley was that the provisions would remain the same On section 7A Cooks Duties Bullard proposed paying the cooks for 2 hours overtime whenever grocer ies were brought aboard the vessel The Union which in item 26 of its original proposal had proposed such rate with a minimum of 2 hours agreed On section 7B which pertained to certain duties of the cook Bullard suggested it be stnken because those were the cook s duties anyway On section 7C Bullard opposed increas ing the allowance of $1 to $1 50 to be paid to the cook for preparing extra meals above those for the normal crew of 12 The Union which in its original proposal had requested an increase to $3 informed the Company it would get back to them On section 7D pertaining to the cook s work Bullard suggested it be deleted because cooks did not perform maintenance work The Union made no response On sections 8 9 and 10 Brown proposed deleting them because they pertained to tankermen and the Coin pany did not carry any whereupon the Company agreed On section 11A Utilitymen Bullard explained employees assigned to such work were paid overtime whereupon Brown s position was they would get back to the Company on it On section 11 B Utilityman Tanker man Brown proposed to delete the provision and Kilroy agreed On section 12 Witness for Company the Respondents proposed leaving the provision as it was with the existing payment of two thirds of a day s pay however the Union s position was that it wanted it in creased as in item 21 of its original proposal to a full days pay On section 14 Vessels Laid Up Respond ents position was that they could give the crew as much notice as the captain had The Union s position was that the provision would remain the same During the meeting certain items on the Union s origi nal proposal were discussed On item 5 COLA Bul lard s position was that the Company could not live with a COLA clause because it was based on the CPI which was not applicable to the average person Brown s posi tion was that they had to have some protection on wages and mentioned if not a COLA clause then a 1 year con tract On the second item 9 dealing with prepaid flight tickets Bullard proposed a lump sum payment for trans portation which Brown objected to because some em ployees who had to travel further would lose money Bullard then proposed leaving the transportation provi sion as it was in the contract and Brown agreed and dropped this item 9 On item 16 pertaining to a full day s pay when relieving or being relieved this item was subsequently dropped by the Union Item 20 pertaining to paying employees on certain coal runs 10 percent above the daily wage rate was dropped by the Union after Bullard explained they could not pay employees an extra premium on those runs On item 23 pertaining to shipwreck compensation Bullard had proposed increasing the amount to $400 which the Union rejected Item 24 providing for compensating the cook for extra meals was discussed Item 25 pertaining to compensating the cook when taking inventory and ordering stores was subse AMERICAN COMMERCIAL LINES 1143 quently agreed to based on a counteroffer by Bullard On item 30 providing for bulletin boards in the crews lounge the Union rejected Bullard s offer to let them have bulletin boards provided the Union paid for them and did not put scurrilous literature on them On item 31 pertaining to walkie talkies the Union subsequently agreed with Bullard s proposal to supply them when available on the big vessels as soon as possible and con venient Brown in presenting the Union s wage proposals of fective beginning December 31 presented two sets of figures including an original wage proposal that had never been submitted to Respondents before and the re duced figures it was actually proposing Brown explained that the Union was reducing its original demands for purposes of obtaining an agreement The original figures and their reductions on a daily basis were $170 reduced to $145 for chief engineers on vessels of 5600 horsepow er and above $150 reduced to $135 for chief engineers on vessels under 5600 horsepower $110 reduced to $100 for assistant engineers and $60 with the amount of re duction to be determined based on what other engineers rates were for the trainee engineers The original propos al for the lead deckhands and cooks was $60 and for the deckhands $50 on a day to day basis 108 however on the actual proposal the day to day provision was dropped and proposed instead was $100 each for the lead deck hands and cooks and $85 for the deckhands on the basis of working 30 days on and 20 days off Respondents position was that they would submit pro posals A negotiation meeting was held on December 26 The Union was represented by Brown Martin Anderson At torney Charles Monblatt 109 and several committee members Present for Respondents were Kilroy Bullard Ivey and Whitlock During this meeting the parties discussed the Union s original proposal and a proposal submitted that day by Respondents On item 3 of the Union s original proposal which pro vided for overtime at double the hourly rate the Union agreed to Respondents counterproposal to pay overtime at 1 1/2 times the hourly rate On item 15 pertaining to funeral leave the Union withdrew this provision and proposed leaving the provi sion as it already was in the contract 108 On the day to-day basis employees are paid both while on and off work whereas under the existing contracts they were only paid while on the job 109 Monblatt a staff attorney for the Seafarers vacation plan was present at six negotiation meetings for the Union beginning on December 26 During these meetings Monblatt took handwritten notes which were later dictated by him to a secretary who typed them After he compared the typewritten notes with his original notes for accuracy the original notes were destroyed Monblatt who testified at the hearing even after reviewing these typewritten notes on the witness stand professed an in ability to recall with limited exceptions anything discussed at negotia tions and the typewritten notes were offered into evidence as recorded recollection Admittedly Monblatt did not record everything discussed or make verbatim notes of what was said and left out areas that he did not consider to be part of negotiations Because these typewnten notes are therefore not an accurate reflection of what transpired at negotiations and one could only speculate as to what was omitted I find they have no probative value and have not considered them On item 23 regarding shipwreck compensation the Union which was seeking $600 agreed to Respondents counteroffer of $400 On item 30 concerning bulletin boards Kilroy in formed them they had a proposal on it On item 32 providing for crew notices to be sent to four different locations the Union agreed to Bullard s proposal to send notices to St Louis Missouri and New Orleans Louisiana The parties agreed to refer several items to the safety committee to handle These included item 23 on first aid kits item 34 on replacing work vests item 35 on replac ing clutch guards item 36 on soundproofing engineers quarters and item 43 on supplying oxygen tanks and life boats On item 37 concerning paying crewmembers penalty time for replacing stationary rigging Brown agreed to drop this after Bullard contended they were already get ting it On item 38 regarding paying the deck department pen alty time when working outside their department Bul lard indicated their intention was not to have penalty time Item 39 providing that no crewmember would be on the tow alone was rejected by Bullard because it would be impossible to comply with On item 41 pertaining to the authority of the engi neers an agreement was reached concerning their au thonty and responsibility over their department but under the direction and control of the captain and pilot On item 42 concerning crewmembers being paid penal ty time for cleaning off excess cargo on barge decks the Union dropped this item after Bullard explained it was the crewmembers duty to do such work On item 46 pertaining to deck crewmembers being paid extra for engineroom work on boats without engi neers Respondents indicated they would have a counter proposal After discussing these items the parties went over all the Union s original proposal with Brown or Bullard in dicating which items were open and which were closed Respondents new proposal was discussed and the changes explained by Kilroy On article 1- Recognition -Kilroy offered to agree to one employer provided the Union would accept two bargaining units consisting of a unit comprised of lead deckhands deckhands and cooks and a unit comprised of chief engineers probationary engineers and trainee engineers Kilroy s position was that if the Union would not agree the units would remain as they were before with each company having separate units The Union rejected this proposal and Brown s position on the unit was the same as in the Union s original pro posal as described by Schulman On article 2- Management -Kilroy explained their previous proposal had been changed to include insertions suggested by Schulman These were making the right to release employees from duty subject to the seniority provisions and in the reservation of rights clause insert ing subject to the collective bargaining agreement 1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Brown s position was that the Union would not agree to any management rights clause whereupon Kilroy sug gested that if the Union moved in areas such as the trust funds or hiring hall the Company would move on the management rights clause On article 3- Union Security -Kilroy mentioned they had deleted the second paragraph from their earlier proposal and had inserted instead as suggested by Schul man the sentence The foregoing shall be administered according to applicable law The Union rejected this and Brown s position was that only the standard contract language which was good language and had been tested was acceptable Although Monblatt claimed under the law the provisions had to be in the same form as in the contract no authority was cited as requested by Kilroy On article 4- Check Off/Hinng Hall/Access ' 0- Kilroy explained that they were proposing to use the union hiring hall giving the Union the first opportunity to furnish new employees but they would not agree to be bound by the shipping rules or to become part of the Seafarers appeals board Kilroy directed them to insert $1 as the amount Respondents would reimburse the union hiring hall trust fund for every referral made to the Company from the union hiring hall Kilroy com platned that the hiring hall had not worked it was not always possible to give the Union a 24 hour notice he claimed that the Union would have more people if it got rid of the $100 clinic card fee Kilroy also mentioned they had some serious reservations concerning how funds in the union hiring hall trust fund was being used claiming the best they could piece together was that the fund was being used to pay union agents or set off some of the Union s costs in operating the office and to pur chase real estate for subsidiary corporations of the Union Brown s position was that the Union would only agree to the exclusive hiring hall contained in the contracts with the amended shipping rules Kilroy proposed that if the Union would waive its ini tiation fee for all new employees rather than just for graduates of the Lundeberg School for up to 6 months they would consider deducting initiation fees which Kilroy blamed for employee turnover Brown rejected this proposal Section 6 of the proposal providing for the Company to place bulletin boards in the crews lounge supplied by the Union was agreed to by Brown On article 5- Seniority -Kilroy explained this pro vision was basically the same as their previous proposal Brown rejected it and contended the Union would only agree to those proposals in the contracts on both compa ny and union seniority On article 6- Grievance Procedure -Kilroy ex plained that the provision was as they had outlined before and they were trying to get the captains involved in the grievance procedure and get problems resolved on the boats claiming the procedure they had before had 110 This was substantially the same provision as previously proposed by Respondents except it gave the Company the right to revoke visiting privileges of union representatives for misconduct and contained a sec tion on bulletin boards not worked Kilroy suggested that they were flexible on the 5 day cutoff period they had proposed on filing grievances No agreement was reached On article 7- Equal Opportunity -Kilroy men tioned this was the same provision as discussed before Although Brown indicated there was no problem with it he still wanted to determine whether 18 year old em ployees could work in the maritime industry On article 8- Strikes and Walkouts -this provision was the same as originally proposed by the Respondents Brown contended that the Union could not agree be cause it made no provison for lockouts whereupon Kilroy pointed out the last sentence which provides The Company agrees that there shall be no lockouts during the term of this Agreement Brown s position was that the language on this provi sion would remain the same as in the existing contracts On article 9- Clarification Committee -Respond ents had deleted from their original proposal the words objected to by Schulman due to the extent and diversi ty of operations of the Company Brown agreed to this revised proposal by the Respondents On article 10- Substitute Provisions/Savings Clause -which is the same provision as previously pro posed by Respondents Kilroy again explained the reason for inserting administrative agency among the bodies set forth Brown did not recall any opposition from the Union or whether an agreement was reached Article 11- Leave of Absence -which is the same provision as previously proposed by Respondents was not discussed On article 12- Holidays -Brown indicated the Union would have a counteroffer on it Article 13- General Conditions -contained sections on transportation and overtime The overtime section which provides for overtime pay at the rate 1 1/2 times the employees regular rate had already been agreed on On article 14- Living Conditions -the provision on Safe Working Conditions contained in section 10 arti cle V of the existing contract as suggested by Kilroy had been inadvertently omitted and was to be included as another section Bullard also requested that the words all places in section 1 be deleted Section 2 which provided meal allowances of $3 for breakfast $5 for dinner and $7 50 for supper and $30 per night for lodging was discussed with Brown indicat ing they would agree to the $30 for quarters Kilroy explained that under section 3 the $10 clothing allowance for cooks after serving 30 days aboard the vessel had been included and requested them to insert that this was to be submitted on overtime sheets On article 15- Work Schedule and Special Working Conditions -the parties agreed under section 5 that the cook would be paid extra at the rate of $1 50 per meal for those meals served above those for the normal com plement of his crew as it may be changed with a trainee or steersman On wages Respondents proposed effective December 31 paying the chief engineers $105 with an additional $7 50 per day on 8400 horsepower boats probationary engineers $77 50 trainee engineers $53 50 lead deck AMERICAN COMMERCIAL LINES 1145 hands $53 50 deckhands $46 50 and for the first 30 days $41 50 and cooks $46 50 Those proposed rates would increase effective December 31 1980 and De cember 31 1981 respectively as follows chief engineers $112 35 to $120 20 with an additional $7 50 per day on 8400 horsepower boats probationary engineers $82 90 to $88 80 trainee engineers and lead deckhands $57 25 to $61 25 deckhands and cooks $49 75 to $53 50 and deck hands for the first 30 days $44 75 to $48 50 Kilroy ex plained they had deleted the differential between chief engineers except on the 8400 horsepower boats Kilroy s position on probationary deckhands was they were not set on the rates and proposed if the Union would accept the probationary status for the first 30 days they would have no problem extending the status or paying the em ployee the difference between the probationary and full rate retroactively on completion of 90 days or whatever date they could agree to Brown s position on wages was that their offer was on the table and contended they needed to go through the language and get an entire agreement No agreement was reached on wages The provisions on this proposal concerning the method for paying employees working less than a full day was de scribed by Brown as being the agreement they reached on it On the incentive bonus Respondent had increased the rates to be paid to employees by 50 cents per day which Kilroy explained The Union rejected the proposal On the health and welfare proposal Kilroy explained that this was the same proposal as previously submitted by Respondents and it would remain the same On pen sions Kilroy and Bullard withdrew their previous offer to keep the union pension plan The reasons given by Kilroy were that they had not received any figures from the Union as they had requested for contribution rates to the Union s pension plan for benefit levels of $220 $330 and $440 a month which they needed and because of Brown s position the health welfare and pension were all together in one fund and there could not be one with out the other Kilroy indicated Respondents would submit their own pension proposal on paying the em ployees $10 50 per month for each year of service with the Company less any vested union benefits Years of service would be computed the same way as for salaried employees on boats whereby an employee working over a minimum of 125 days a year would receive credit for 1 year s service Brown s position on health welfare and pension was that the Union would only agree as it had proposed to the standard welfare plan in the existing contracts with contributions being made to the plan that provided for health welfare and pension benefits A negotiation meeting was held on December 27 at tended by the same persons as on the previous day During this meeting the parties discussed some of their previous proposals and offered new proposals and Re spondents informed the Union they were making their final offer After Brown indicated the Union was not going to have its contract gutted or give up gains made over the years Kilroy claimed the employees had not gained any thing and reiterated what they contended were problems Kilroy claimed the Union had used the hiring hall plan to buy buildings and the health welfare and pension plan to pick up the costs of the Union doing business the Lundeberg School was strictly for the Union s own pur poses with training secondary which Brown denied Kilroy asserted the employees would be better off if the 50 cents per man per day paid to the Transportation In stitute and to the hiring hall trust fund were paid to them instead and denied the union hiring hall was needed stat ing the Company wanted regular employees who could have steady benefits and depend on the Company for employment On vacations Kilroy contended they wanted an easier process and claimed something had to be done about administration costs and eligibility require ments On health and welfare benefits Kilroy complained about aggravation employees experienced in going to the Union filling out forms and submitting documentation Kilroy denied the Lundeberg School had been able to produce employees to help their industry Kilroy also mentioned he had received a copy of the LM-2s for 1978 which showed the Union was still taking money out of the funds as reimbursement for shared services which had gone up to $4 million in 1978 Several provisions of the existing contracts were dis cussed On article I section 2- Union Furnishing Em ployees -the Union s position was that it would only accept an exclusive hiring hall Ivey complained that the hiring hall did not work and that the company did not always have 24 hours notice to give After Brown in formed them that if the Company did not get such notice they did not have to give it Kilroy suggested inserting when possible in the contract which Brown rejected Kilroy s position was that they would give the Union first call but they did not want to become involved with the exclusive hiring hall or be bound by the shipping rules promulgated by the Seafarers appeals board and they were not going to have it On article I section 3- Union Security -Kilroy s position was that although they had agreed to union se curity they could not agree to waive initiation fees which they had rejected as being too high just for Lun deberg School graduates However Kilroy indicated there would be no union security clause if there were problems with the language of both the Company and the Union On article I section 6- Union Seniority -and article IV section 1 pertaining to company seniority the Union s position was that it would only accept those pro visions in the contracts with the amended shipping rules Kilroy s position was that they would not incorporate any union seniority in the contract and the Union could award seniority on any basis it wanted to and ship em ployees out of the hiring hall any way it wanted to as long as it was legal and complied with the law and that the Respondents did not want to get involved in situa tions in which they did not have any right On article III- Dues Check Off and Initiation Fee - the Union s position was that this was the only language acceptable and Monblatt asserted that there were legal reasons for not changing such language but cited no au thonties as requested by Kilroy Kilroy s position was 1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that there was no problem with checking off dues and offered to deduct initiation fees provided that the Union would waive initiation fees for all new employees for 6 months Various sections of Respondents December 26 propos al were discussed On article 1- Recognition -Kil roy s position on MAC was that it was excluded Al though Kilroy mentioned Respondents had gone from three companies and seven units to offering one comps ny contingent on the Union s agreement to two units and urged concessions by the Union Brown rejected Re spondents proposal contending that the Union could only agree to the unit previously described by Schulman Respondents indicated they had made some commitment and could not live with the existing recognition clause as before and would not have it On article 2- Management -the Union rejected this proposal On article 4- Check Off/Hinng/Access -Kilroy mentioned the Company s language gave the Union first preference in filling vacant jobs and Bullard pointed out they agreed to prefer the union hiring hall facilities Brown rejected the proposal and insisted they keep the language as it was in the contracts claiming it had been tried and tested On article 5- Seniority -under section 1 Kilroy s position was that they wanted a probationary period to evaluate a new employees conduct and performance Brown whose position was that they already had a good seniority clause objected to a probationary period and claimed Respondents would operate one half of the deck department at the probationary rate Kilroy disputed this and offered to pay the employees the difference between the probationary and regular rates on completion of the probationary period or any extention of that period they could agree to provided the Union which made no re sponse agreed to a probationary period On article 6- Grievance Procedure -Kilroy s pose tion was that they wanted to get complaints resolved on the boats and they were flexible on the 5 day limitation period they had proposed for the filing of grievances The Union s position was that the grievance procedure in the existing contracts was suitable Brown who had previously complained that Respondents proposal left too much in the hands of one person and the time limits were too short suggested if Respondents could come forward with a fair workable grievance procedure he would not have any problems with it According to Brown Kilroy indicated Respondents were prepared to go up to 30 days on a cutoff period for filing grievances Article 7- Equal Opportunity -was discussed but no agreement was reached On article 8- Strikes and Walkouts -Brown object ed to Respondents proposal because it had nothing in the title about lockouts and contended the language in the existing contracts was sufficient Article 9- Clarification Committee -had already been agreed to On article 10- Substitute Provisions/Savings Clause -Kilroy pointed out the reason for inserting ad tute provisions clause had been agreed to it was not es tablished that an agreement was reached on article 10 On article 11- Leave of Absence -which is similar in part to the existing contract language Brown thought this was agreed to On article 12- Holidays -which proposed the same holidays as in the existing contracts the Union submitted a counterproposal discussed infra dropping one of the two additional holidays it had requested Under Article 13- General Conditions -section 1- Transportation was agreed to This is the same provi sion as in the existing contracts except for subsection F which pertains to employees from the Lundeberg School relocating within the geographic area of the Company that was deleted Bullard further indicated they were still going to check out prepaid flight tickets which the Union had originally proposed On section 2- Over time -Brown informed them the Union had already agreed to 1 1/2 times the hourly rate Under article 14 Respondents instructed the Union to add an additional section on safe working conditions that had been inadvertently omitted which would be the same as article V section 10 of the existing contracts On section 2 Subsistence the Union reduced its pro posal on breakfast and lunch by $1 Respondents pose tion on subsistence remained the same but indicated pos sible movement provided the Union made concessions in other areas It was also agreed under section 3 Crew Equipment that the clothing allowance to be paid to the cooks would be on the overtime sheets The other sections under this article were section 1 dealing with furnishing a supply of stores aboard vessels section 4 Quarters and section 5 Shipwreck Compensation According to Brown except for meal allowances the Union agreed to this article Under article 15- Work Schedule and Special Work ing Conditions -it was proposed under section 2 Swing Time that employees would work 30 days on and 15 days off and be paid two thirds of their daily rate while serving on the vessel with one third set aside as Accumulated Time time off Kilroy explained under this section employees would get two thirds of their pay while working and the balance while they were off work Brown questioned Respondents about the absence of annual physical examinations i i i in their proposal which Kilroy explained had been deleted because it had not been in the past and was excess language Kilroy s pose tion was that they would determine whether to give physicals based on each individual case Certain items on the Union s original proposal were discussed On item 13 in which the Union wanted Re spondents to furnish gloves and pay 50 percent of the cost of safety shoes the Union dropped this proposal after agreeing to a proposal by Bullard to pay a safety shoe allowance of $30 for every 180 days worked On item 18 dealing with missing man s wages Anderson contended they wanted to go back to the original intent ministrative agency Although Brown thought the substi cals Art V sec 6 on the existing contracts provided for annual physi AMERICAN COMMERCIAL LINES 1147 of the contract language Ivey rejected this contending a man could only do I day s work and they would contra ue to call employees out when needed to perform such work An offer by Anderson to withdraw this item if Re spondents would agree to the Union s proposal on sub sistence was rejected by Kilroy who indicated the Union would instead have to make concessions like in the trust funds and hiring hall Contract language was also discussed Kilroy s posi tion was that they wanted language as short and simple as possible so everybody could read and understand it and know what was agreed to while Brown pointed out they had lived with the existing language a long time and questioned Respondents about their problems with such language The Union presented several written proposals On COLA it proposed that the Company maintain its wage scales in the top of the upper pay range paid by their competitors with wage adjustments determined by the rate of change of the CPI and wage scales of other oper ators and union contracted companies in the same trades Kilroy questioned what was meant by various terms and rejected the proposal because they were opposed to a COLA clause and indicated their wage proposal in the second and third years would take care of the cost of living On its proposal on holidays the Union dropped its original request for an additional holiday on Good Friday but still insisted on an additional holiday for Lin coin s Birthday Respondents rejected the request for an additional holiday with Kilroy contending they already had enough holidays and proposed leaving the number at eight holidays as in the existing contracts Three other provisions of the proposal dealing with the designation dates substitution of holidays and receiving extra pay for working on holidays which were the same as in the existing contracts were agreed to by the parties An other provision pertaining to paying the penalty rate was rejected by Respondents Proposals on safe working conditions and on a work day which were like or similar to certain provisions con tained in the existing contracts were discussed and agreed to by the parties Following discussion of the Union s proposal Kilroy mentioned there were grave issues on recognition trust funds and the hiring hall Bullard contended as far as the Company was concerned there were strike issues on the recognition clause hiring hall Lundeberg School union vacation plan Transportation Institute and pension Brown indicated that the Union s wages were on the table and no economic counterproposals would be made until the language problem was straightened out men tioning they still had a lot of language to get out of the way and a lot of open items to discuss and reach agree merit on and that a contract on wages alone was not any good without jobs to work on Kilroy s suggestion that they were at an impasse on language was agreed to by Brown Kilroy after again reiterating his complaints about the trust funds employee turnover initiation fee and hiring hall and mentioning Respondents offers on increased wages a prefer and refer hiring hall union security and checkoff health and welfare coverage and pension plan informed the Union that Respondents were making their final offer This offer proposed pay rates effective De cember 31 as follows chief engineers $110 with an addi tional $10 per day on 8400 horsepower boats probation ary engineers $80 trainee engineers and lead deckhands $55 deckhands and cooks $48 and deckhands for the first 30 days $43 Effective Decmebr 31 1980 and De cember 31 1981 respectively these rates would increase as follows chief engineers $118 80 and to $127 10 pro bationary engineers $8640 and to $92 45 trainee engi neers and lead deckhand $59 40 and to $63 55 and deck hands and cooks $51 85 and to $55 45 with deckhands for the first 30 days $46 85 and to $50 10 Other provisions some of which as previously indicat ed had been agreed to were included on their final pro posal On overtime it provided that employees working in excess of 12 hours per day would be paid overtime at the rate of 1 1/2 times their hourly rate On accumulated time off it provided employees so electing could be paid on an ATO basis and continue to be paid on days off On safety shoe allowance it provided after 180 workdays employees except for cooks would be paid a $30 safety shoe allowance On cooks whites it provided a $10 clothing allowance to cooks every 30 workdays The in centive bonus was increased an additional 50 cents per say Additional provisions included paying deck depart ment employees assigned to engineroom duties on boats without engineers $5 a day more and paying deck de partment employees overtime for assisting engineers with work in the engineroom A provision on swingtime pro vided for 30 days on and 15 days off Although Brown contended Kilroy mentioned that if they had more time maybe they could negotiate a con tract Kilroy credibly denied making such a statement After making their offer Kilroy informed the Union this was Respondents final offer and the Union would not get any more in the future and indicated a strike would not result in any increased economic benefits Kilroy and Bullard informed the Union they would be at Respondents Harahan office until noon the next day before leaving and if no response was received from the Union by then Respondents would communicate their offer to the employees and on December 31 implement the economic provisions and the wages health and wel fare pension benefits overtime part time and benefits to the employees Kilroy testified the following day December 28 they were at Respondents Harahan office until about 12 15 p in but received no response from the Union Brown by telegram addressed to Ivey at the Harahan office criticized and rejected Respondents final offer and stated the Union was prepared to continue negotia tions and to extend the current agreement on a day to day basis for 60 days in an effort to reach an agreement Western Union was first contacted at 1 14 p in e s t 112 on December 28 about sending this telegram and the sending of the telegram was handled by its Bridgeton 11 Harahan Louisiana is on central standard time which would have been 12 14 p m 1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Missouri office which is the telephone recording center for the central part of the United States It was not es tablished when Respondents were first informed about the telegram Kilroy denied receiving it at the Harahan office on December 28 113 but stated he received his copy in the mail on December 31 on returning to his office Kilroy responded by telegram dated December 31 in forming Brown the Company would not extend the con tracts between ITC SOT and ABL and further stated In view of the parties impasse on contractual language and the Union s refusal to counterpropose any economic proposals until an agreement on language is reached the Company has implemented its last offer effective today The telegram further informed the Union to advise Re spondents if and when the Union desired to meet and ne gotiate further in an effort to reach a settlement According to Kilroy prior to receiving the Union s telegram Respondents had communicated their offer to the employees through the boat captains beginning the evening of December 28 and implemented their offer on December 31 The Union distributed a letter from its negotiating committee prepared on January 3 1980 to its members concerning the status of negotiations The letter con tamed references inter alia such as negotiations being deadlocked the Company s final offer being totally unac ceptable their being far apart on wages pension wel fare and vacations plans when negotiations broke down the Union s having no intention of settling for the wage increase offered their being deadlocked on a number of crucial issues concerning their security like the hinng hall and negotiations being at a standstill 114 The next negotiating meeting was held on January 4 1980 Present for the Union were Brown Martin Ander son Monblatt and several committeemen Union Vice President Mike Sacco also attended portions of the meet ing Respondents were represented by Kilroy Whitlock Ivey and Bullard Brown mentioned the Union had modified some of its proposed contract language and then presented several written proposals which were discussed On article I section 1- Recognition -Brown de scribed this to cover all the companies including ACBL ABL ITC SOT MAC and all their subsidiary and of filiated companies as previously defined by Schulman Kilroy objected to this as being unacceptable The par ties did agree steersmen were not included in the unit On fully founded boats referred to in the proposal Monblatt contended that this was the same as a bareboat charter while Kilroy defined it to mean a boat with a crew which was provisioned and fueled and under their direction and control whereas a bareboat meant it came 1 3 Kilroy acknowledged in an affidavit given to a Board agent having stated that on December 28 they received a telegram from Brown refusing their final offer which he now claims was in error 114 Respondents proffered such references in the letter as admissions against interest by the Union in support of Respondents contention that an impasse was reached dunng negotiations However because the letter also criticizes Respondents conduct during negotiations and accused them of refusing to bargain in good faith I do not find such statements when considered in their entirety constitute an admission against interest or show an impasse was reached empty Kilroy objected to the chartering provisions mentioning they could not give recognition on boats chartered or agree to language restricting their right to do business in that area Bullard also questioned why barges were included whereupon Brown informed them if Respondents had employees working on barges they would be covered Article I section 2- Union Furnishing Employees - which was similar to but shorter than the provision con tained in the existing contracts was rejected by Respond ents with Bullard or Kilroy contending they were not going to use the union hiring hall because it did not work and they did not want it Bullard s position was that they could not agree to give the Union 24 hours notice because they did not always have it Brown sug gested if the hinng hall was agreed to the notice could be worked out and pointed out that the provision allowed the Company to obtain employees if the hiring hall was unable to furnish them Whitlock also com plained they could not contact the union hinng hall on weekends or nights when it was closed 115 Brown ex plained they could contact the Union s representatives at home or exercise their contractual right to hire employ ees to keep the boats from being delayed or sailing short handed Brown also rejected several suggestions by Kilroy to add additional language On article I section 3- Union Security -Kilroy in formed Brown he thought there had been an agreement on language suggested by Schulman about the forego mg being administered according to applicable law However Brown denied there was any agreement be tween them at that time On paragraph b which pro vides for the Employer to discharge at the Union s re quest employees who fail to comply with the article Kilroy contended this could be a problem if the Union waived the initiation fee for 6 months for Lundeberg School graduates and not for other employees Kilroy s suggestion that they could agree if words were inserted about those employees to be discharged having been of fered membership on the same basis as other employees was rejected by Brown who contended the language could not be changed On article II- Grievance and Arbitration Proce dures -Respondents position was that the proposal had not changed anything Monblatt proposed inserting au thonty for an arbitrator who would be bound by the four corners of the contract to make decisions concern ing any relationship between the parties that they could not resolve Kilroy rejected this proposal Kilroy con tended that they had to have a cutoff date for filing grievances and proposed having 7 days after the employ ees got off the boat but indicated they could go up to 30 days Brown rejected a cutoff date claiming employees did not contact the Union and the Union had no oppor tunity to contact them and mentioned because of the nature of the business more than 30 days could elapse before the matter was brought forward Kilroy objected to using the AAA describing its procedures as cumber 115 The union hinng hall was open from 8 am to 5 pm Monday through Friday and from 8 a in to 12 noon on Saturday AMERICAN COMMERCIAL LINES 1149 some and claimed they could get a list of arbitrators from the Federal Mediation and Conciliation Service quicker and cheaper Brown contended that the AAA was more equitable Respondents suggested the locations of the arbitration hearings should be at the convenience of all the parties rather than of the grievant and his witnesses Kilroy ob jected to Anderson s definition of discipline which was described to mean anything the Company did to an em ployee Kilroy raised questions concerning what other provisions meant which were explained by the Union Although Kilroy claimed Respondents own proposal would cut down on problems Brown rejected it con tending it gave the captain too much authority On article III- Dues and Check Off and Initiation Fee -Monblatt explained the language on the proposal would be inserted in front of article III in the existing contracts which would remain the same Kilroy s pose tion was that they had no problem with dues checkoff or maintenance of membership but on initiation fees they contended if the Union wanted to waive them for some employees it had to waive them for all employees for up to 6 months The Union s position on their proposal which contained no waiver of initiation fees for any em ployees was the language they had proposed which they indicated was their final offer on this provision On article V section 9- Lundeberg School -van ous sections were discussed Section C which is similar to a provision in the existing contracts provides that the Company agrees to carry a set number mutually agreed to of trainee engineers When Kilroy questioned what would happen if the parties were unable to agree on numbers Monblatt explained an arbitrator could decide which Kilroy claimed was inconsistent with Monblatt s prior statement about the arbitrator being bound by the contract Brown s position was that this would not be any problem Under section D pertaining to promotions Monblatt s position was that the Company would deter mine the employees abilities and fitness subject to the grievance procedure On section E pertaining to reim bursement for transportation expenses for Lundeberg School graduates Kilroy suggested 60 days employment be changed to 60 days work as in the existing contracts with no response from the Union Bullard or Kilroy informed the Union he was were not going to use or participate in the Lundeberg school On article I section 5- Equal Opportunity -the proposal which was agreed to by Respondents was that the use of the male gender in the contract equally im plied the female gender On Welfare Pension the proposal provided that in the first year of the contract the contribution was to be increased to $9 82 thus increasing the pension to $340 per month and providing major medical coverage under the welfare plan The third year of the contract the con tnbution would be increased to $12 29 with the pension being $440 per month with early normal retirement bene fits and major medical coverage Kilroy claimed the Union s figures were misleading because to be eligible an employee had to have 5480 days of employment or con tnbutions on his behalf Kilroy explained under Respond ents plan eligibility was based on 125 days service and employees were already covered under a major medical plan and mentioned Respondents only concern was cost Although Kilroy contended they could provide a better plan for less money than the Union s plan Brown dis agreed and questioned whether Respondents plan cov ered pensioners and their dependents on medical cover age which he explained was a big part of the Union s plan Brown at the close of the meeting reiterated the Union had spent a lot of time changing the language to get an agreement Kilroy however claimed the changes were only cosmetic and they were still far apart on issues such as recognition hiring hall and the Lundeberg School Sacco advised Respondents to give the proposals sen ous consideration and mentioned everybody had their hands on their pins and were ready to head for the trenches The next day January 5 1980 another negotiation meeting was held attended by the same persons as present the previous day During the meeting various issues discussed previously were again discussed and the Union presented its final contract proposal to Respond ents which was also discussed On employee turnover the Union blamed it on the caliber of personnel in the wheelhouse which Bullard disputed while Respondents claimed one of the causes was the Union s $600 initiation fee Under the grievance procedure Kilroy repeated they had to have a cutoff period for filing grievances and at tributed problems in the past to union agents not being aware of agreements between the parties and misleading employees in advising them on filing grievances Kilroy contended that the standard contract language was not going to solve the problem and claimed they had to get language to solve their problems and wanted the employees to know what the contract said and meant On the savings clause Monblatt rejected Kilroy s re quest to insert administrative agency in the provision be cause only the legislative or judicial branches could change the law and not an administrative body which Kilroy termed as nonsense On the term of the contract Brown s position was that the Union wanted a 3 year contract with a COLA clause and without a COLA clause it would only accept a 1 year contract Kilroy indicated they had to have labor rates fixed for at least 2 years and proposed a 2 year agreement which Brown rejected Bullard con tended they could not live with a 1 year contract and stated the Company had to have a 3 year agreement and they would not have a COLA clause On the Union s initiation fee Respondents position was that if the Union waived it for graduates of the Lun deberg School it had to waive it for everybody or in the alternative reduce it When Anderson related that the Union saw no reason to change the initiation fee and dues Kilroy accused Frank Drozak of reneging on his earlier agreement to have the issue of reducing the initi ation fee on the inland rivers to $200 or $300 and placed on a ballot to be voted on at the Unions convention 1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Brown however denied there had been an agreement to do so On checkoff Kilroy offered to check off initiation fees if the Union would agree to waive the initiation fees for all new employees for up to 6 months The Union s final proposal consisted of the proposals submitted the previous day except for a revised proposal on a welfare pension plan plus several additional propos als including wages Bullard claimed the Union s propos als were the same as in the contracts except for a few word changes while Brown insisted there were language modifications Both Brown and Monblatt described it as the Union s final proposal and Monblatt explained they had worked hard on revisions to get Respondents to accept standard contract language and said that was as far as the Union could or would go in making changes in the standard contract language Under article I section 1- Recognition -Bullard questioned what the inserted words and barges meant which Brown claimed were self explanatory and insisted they wanted it to cover all employees on boats and barges Bullard stated that the Companies only had boat employees and Kilroy accused the Union of wanting such language inserted because the Union had picketed barges in New Orleans According to Brown this recog nation provision would include MAC and cover all em ployees in one unit Under article I section 2- Union Furnishing Em ployees -Kilroy suggested several changes in the Ian guage relating to regular employees and giving notice to the Union Brown rejected this over Kilroy s insistence on making counterproposals contending the language had to remain as it was Kilroy denied there was any way they could comply with the 24 hour notice period in the Union s proposal Under article I section 3- Union Security -Kilroy suggested Respondents could agree provided the Union inserted the language The foregoing shall be adminis tered according to applicable law and membership of fered to all employees on the same basis as other em ployees Brown rejected this contending the language had to remain as proposed On article III- Grievance and Arbitration Proce dures -Kilroy s position was that Respondents wanted a cutoff date for filing grievances Kilroy contended the Company s objective was to resolve problems quickly without having complaints lingering and under the Company s proposals the captains would be more in volved in handling problems on the boats and could re spond while the facts were fresh Browns position was that the Unions proposal was something they could all live with and mentioned persons needed time to get grievances properly solved The union proposal provided that on all boats that did not carry an engineer one deck crewmember would be assigned normal routine engineroom maintenance work and be paid 10 percent above his daily pay rate Al though Kilroy who rejected the proposal claimed the Company had offered more by paying a $5 a day premt um Brown disputed this claiming under that the Union s proposal the amount would increase each year The Union s proposal provided for a minimum of one engineer and one assistant engineer on all vessels of 5600 horsepower or above Kilroy rejected this stating they could not put an assistant engineer on the smaller boats The Union s proposal provided that when a crewmem ber was missing and not replaced within 24 hours or at the next available boarding place his wages would be split among the crew This was rejected by Respondents with Kilroy Bullard and Ivey pointing out it was not always easy to get a man on the boat within 24 hours and the lack of available places to board boats On wages the Union proposed daily rates effective December 31 as follows chief engineers on boats up to 5600 horsepower $ 125 chief engineers on boats over 5600 horsepower $135 assistant engineers lead deck hands and cooks $90 and trainee engineers and deck hands $70 These rates would increase by 8 percent of fective December 31 1980 and by 7 percent effective December 31 1981 This was not accepted by Respond ents On vacation the Union proposal provided for an in crease of $1 per day for each of 3 years Kilroy rejected this as unacceptable On COLA the Unions proposal provided in the second year of the contract a cost of living increase with an 8 percent deductible the third year of the contract a cost of living increase with a 7 percent deductible and a maximum of 14 percent applicable both years Brown pursuant to Kilroy s inquiry explained this was the same proposal the Union made on December 27 but with de ductibles in the second and third years On welfare pension the Union s proposal provided in the second year of the contract the contributions would be $12 29 affording members a $440 per month pension and major medical coverage The Union s position on the 50 cent per day per man contribution rates for the Transportation Institute hiring hall and Lundeberg School remained the same The proposal also provided for the Company to pay transportation for entry ratings from the Lundeberg School provided the employee re mained with the Company for 6 months and provided for the training program that was submitted by the Union on October 10 Brown explained that the Union s proposal on welfare and pension was all one fund which the Union could not agree to split up and Respondents had to accept the Union s trust funds Kilroy s position was that based on past performances and their reservations on the application of the trust funds they could not consider them and mentioned their concern was cost and claimed the increases sought by the Union were exorbitant On contributions to Trans portation Institute hiring hall and Lundeberg School Kilroy explained their position was the same as before that the funds were more for the benefit of the Union than the employees and the Company saw no reason to continue them or accept the Unions proposed training program During this meeting after the Union had presented its final proposal Kilroy proffered counterproposals reject ed by Brown who refused to accept them to add Ian guage to the hiring hall proposal to conform to what he AMERICAN COMMERCIAL LINES described was their agreement in principle and to insert in the union security provision words to the effect it shall be administered according to applicable law and membership offered on the same basis to all employees Brown acknowledged he rejected Kilroy s demand to make these counterproposals explaining at the meeting there had been little movement by Respondents through out negotiations putting the Union in a position of nego bating against itself and everything they had negotiated on was just tearing up the Union and urged Respond ents negotiators to discuss the Union s proposal with their principals The next negotiation meeting was held on January 29 1980 Present for the Union were Brown Martin Ander son Monblatt and some committeemen Respondents were represented by Kilroy Bullard Ivey and Whit lock Federal Mediator Dick Taylor who arranged the meeting also attended During the meeting the parties first met together with Taylor at which time Brown at the request of Taylor summed up the issues separating them including inter aha administration of the trust funds contributions to the trust funds standard contract language and manage ment rights clause Kilroy agreed with Brown s summa tion and indicated Respondents had nothing to add Taylor then met separately with representatives of each party to discuss their positions and afterward in formed them they were not going to be able to make any progress that day and adjourned the meeting On February 7 1980 during a conversation between Brown and Martin for the Union and Kilroy and Ivey for Respondents there was a discussion about various bargaining issues This is not a scheduled negotiation meeting During the meeting Kilroy indicated they could accept the union security clause proposed by the Union Kilroy mentioned they would be willing to make an annual contribution to the Transportation Institute but gave no figures On the hiring hall Kilroy questioned Brown concerning his disagreement with Respondents proposal which Respondents insisted on keeping while Brown stated their position remained unchanged The pension was also discussed with Kilroy mentioning he had written Brown requesting information on employees who were vested which was needed by their actuaries to figure up a pension trust plan Brown also suggested the Union could defer the higher contribution rate for the engineers until the third year of the contract but was unable to provide cost figures On health and welfare Kilroy contended that the ben efits Respondents were providing with major medical coverage could be duplicated for about $2 a day and claimed the Union s costs were exorbitant and unjusti feed Kilroy suggested that if the Union could meet the costs they would reevaluate their position but it had to be in line with costs along with an agreement on how the plan was going to be administered regarding the de livery of benefits and getting claims paid without aggre gation caused by the funds in the past Kilroy suggested the level of benefits for the medical plan could be negoti ated Although Brown indicated he would get back to them on this issue he did not 1151 Kilroy at the end of the meeting stated they were in the same position that they were in September or since he had talked to Drozak and Mollard and he felt they were holding all the cards Kilroy sent Brown a letter dated April 3 1980 re questing a meeting to discuss further collective bargain mg agreement proposals covering the fleet bargaining units of ITC (River and Canal) ABL and SOT Union Vice President Sacco by reply letter dated April 7 1980 agreed to meet on April 22 and 23 1980 as sug gested The last negotiation meeting was held on April 22 1980 The Union was represented by Sacco Monblatt Brown Port Agents Pat Pillsworth and Martin while Respondents were represented by Kilroy Whitlock Ivey and Bullard Federal Mediator Jack Baumgardner also attended Pursuant to Baumgardner s inquiry Sacco and Kilroy informed him the issues involved were the trust funds including who would administer them how they would be implemented and paid and the costs Sacco s position was that without the trust funds and Respondents agree mg to contribute to such funds there would be no con tract Sacco mentioned Respondents had not made any counterproposals since January and as far as he was con cerned they were starting from scratch which he de fined to include wages funds manning engineers and everything On recognition Kilroy informed Baumgardner there was a dispute on recognition Sacco mentioned the rec ognition clause had to apply to all the Companies Kilroy informed them some boats had been sold or transferred and that there had been a merger of ABL and SOT into ITC and inquired whether the Union wanted to maintain separate bargaining units or for se monty purposes merge them together Sacco s response was that they would get back to them on it but he never did Kilroy proposed that Respondents would make a flat payment on an annual or monthly basis to the Transpor tation Institute rather than on the basis of 50 cents per day per man as in the last contracts Sacco rejected this proposal Baumgardner who also talked to the parties separate ly later mentioned there was not going to be any progress made and adjourned the meeting Under cross examination Kilroy described Respond ents positions during negotiations on the various union trust funds as follows On the health and welfare trust funds to which they had been contributing since about 1968 the costs were exorbitant benefits were not being delivered and employees were not covered on the vaca tion trust fund to which they had been contributing since about January 1 1978 the trust fund was illegal it was being improperly administered the administration costs were too high and employees were having too many difficulties collecting benefits on the Lundeberg School trust fund to which they had been contributing since 1974 or before the school was not giving them trained employees and they did not think it was legal under Section 302 of the Act and on the union hiring 1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hall trust fund to which they had been contributing since at least 1977 the hiring hall was not delivering effi dent and acceptable employees the trust fund was not a legal trust fund under Section 302 of the Act and the fund was not being properly administered According to Kilroy except for informing the Union in December and February 1980 that if the Union could meet the costs on health and welfare they would be happy to reconsider their position on it Respondents positions on these trust funds remained the same throughout negotiations No further negotiation meetings have been held Al though Kilroy on October 20 1980 requested another bargaining meeting which he later described would be with ITC as successor to SOT and ABL Union General Counsel Schulman by letter dated October 31 1980 denied this request because of the pending Board cases involving unit clanfication and Respondents alleged unfair labor practices which include Respondents al leged refusal to bargain in good faith On November 14 1980 Kilroy in a letter to Sacco ac knowledged receiving Schulman s letter and also submit ted a number of proposals amending their previous pro posals Analysis and Conclusions The pleadings allege the Respondents coupled with other unlawful acts found supra 116 violated Section 8(a)(1) and (5) by refusing to bargain in good faith with the Union during December through May 1980 by insist ing without making any substantial concessions on changing the hiring hall procedure and method of con tributing to the hiring hall trust fund eliminating the Union s training school and welfare pension and vaca tion plan contributions eliminating the contract provi sion requiring Respondents to check off initiation fees changing prior seniority provisions implementing for the first time a broad management rights clause implement ing a 30 day probationary period for new employees and determining and thereby restricting the number and fre quency of visits by union representatives on Respond ents vessels The Respondents deny the allegations and contend an impasse was reached during negotiations Section 8(d) of the Act defines the duty to bargain col lectively as the mutual obligation to meet at rea sonable times and confer in good faith with respect to wages hours and other terms and conditions of employ ment or the negotiation of an agreement This obliga tion does not compel either party to agree to a proposal or to make a concession NLRB v American National In surance Co 343 U S 395 404 (1952) The essential ele ment in the bargaining principle is the serious intent of the parties to reach a common ground Romo Paper Prod ucts Corp 220 NLRB 519 (1975) affd 538 F 2d 312 (2d Cir 1976) Proposals made during negotiations may be taken into account in assessing motivation and the ngid adherence to proposals that are predictably unacceptable to the other party may be considered in proper circum stances as evidencing a predetermination not to reach 116 Par 10(c) of the third amended consolidated complaint alleges these other unlawful acts of a refusal to bargain in good faith were those contained in pars 5 6 7 and 9 of the same complaint agreement Sweeney & Co 176 NLRB 208 212 (1969) enfd in part as modified 437 F 2d 1127 (5th Cir 1971) A determination of whether a respondent has met the good faith bargaining standard requires consideration of the totality of respondents conduct M R & R Truck ing Co 178 NLRB 167 (1969) enfd in part 434 F 2d 689 (5th Cir 1970) and NLRB v Insurance Agents 361 U S 477 498 (1960) Factors to be considered in determining whether a bargaining impasse exists include the bargaining history good faith of the parties in negotiations length of negoti ations the importance of issues to which there is dis agreement and the contemporaneous understanding of the parties regarding the state of negotiations Taft Broadcasting Co 163 NLRB 475 478 (1967) enfd 395 F 2d 622 (D C Cir 1968) The above evidence establishes throughout negotia tions beginning in late September or early October and ending in April 1980 although the parties exchanged proposals and counterproposals which they discussed giving their positions Respondents sought over the Union s objections to eliminate various provisions from the existing contracts and took the position they would not agree to those provisions This included such provi sions as the exclusive union hiring hall checkoff of union initiation fees seniority vacation plan health and wel fare plan i i' Lundeberg School and contributions to the trust funds including the hiring hall health and welfare plan Lundeberg School and vacation plan Although Respondents initially offered to retain the Union s pen sion plan they subsequently withdrew their offer with out notice after the Union had failed to furnish cost fig ures on it Instead Respondents proposed their own se nionty provisions company administered vacation plan pension plan and health and welfare plan a nonexclusive hiring hall with the Union being reimbursed on the basis of each person referred and offered to check off union initiation fees provided the Union reduced the amount of the fee or waived it for all employees for up to 6 months Additionally Respondents sought to install over the Union s objections a management rights clause which by its terms was broad in scope a 30 day probationary period for new deckhands and to limit the existing con tractual rights of union representatives to access of Re spondents vessels Notwithstanding Respondents were seeking to substantially change or eliminate these existing employee benefits some of which had been in existence for many years and the loss of which the Union felt would be detrimental to both the unit employees and the Union as their bargaining representative they did not offer substantial concessions to offset or compensate for such losses Respondents proposed wage increases which were substantially less than those the Union was asking vaned from $82 69 which chief engineers were earning to $110[[8 and increasing to $127 10 over the 3 1P Although Respondents at one point indicated the Union could keep the health and welfare plan this was conditioned on meeting costs cov enng employees and changing the way the plan was administered 118 Chief engineers on 8400 horsepower vessels would receive an adds tonal $10 per day AMERICAN COMMERCIAL LINES year contract period to $37 45 which deckhands were earning to $48 and increasing to $55 45 over the 3 year contract period Although other economic and noneco nomic benefits were proposed none of them were of a substantial nature They included proposed increases in the overtime rate and the rate for deckhands assigned to do engineroom work increased allowances for meals lodging travel maintenance and cure shipwreck com pensation and to the cook for preparing extra meals al lowances for safety shoes cooks whites and certain overtime payment for cooks walkie talkies on the bigger vessels placing union supplied bulletin boards in the crews lounges replacing broken galley equipment as soon as possible and convenient sending copies of crew notices to the Union and a unit proposal of having one employer but with separate units for the deck and engine departments The reasons given by Respondents during negotiations for their bargaining positions which remained adamant throughout negotiations to change or eliminate these ex isting benefits included that the trust funds were illegal under Section 302 of the Act the Union was using the trust funds for its own purposes the plans were being improperly administered and the administration costs were excessive employees were dissatisfied with the plans and had problems obtaining their benefits under the plans the Lundeberg School was not training employees employees were required to use the United States Public Health Service the union hiring hall was unable to supply Respondents needs the union initiation fee was too high the costs of the plans were too high the plans eligibility periods were objectionable and there were ob jections to being bound by the shipping rules However on scrutinizing such reasons they do not appear persuasive The claim that the trust funds were it legal under Section 302 of the Act rests solely on a bare assertion of illegality without any evidence to support it 119 Moreover such claim is inconsistent with the fact that Respondents had contributed to those same trust funds for years without questioning their legality or showing any valid cause to question them now The fact that the form LM-2s filed by the Union reflects that the Union owns property and receives income from ream bursement of shared services does not indicate or estab lish that the Union has misused trust funds the expendi tures of which are entrusted to the trustees of those trust funds Although a number of employees had complained about their benefits and having problems obtaining them such complaints appear isolated when considered with the overall number of employees in the units The con tention that the Union s hiring hall was unable to supply Respondents needs ignores the fact that Respondents had been hiring employees directly without using the Union s hiring hall as required by the contracts and had financially obligated themselves during negotiations to hire new employees through the Academy On costs the Union was not seeking increases in contributions to all 19 Jurisdiction for determining violations of Sec 302 is vested in the Federal courts rather than the Board See Sheet Metal Workers (Sheet Metal Contractors) 234 NLRB 1238 (1978) affd 664 F 2d 489 (5th Cir 1981) 1153 the trust funds such as the hiring hall trust fund Trans portation Institute and the Lundeberg School Regard ing criticism of the plans themselves and their adminis tration costs these are the same plans that had been in existence for years Although employees were required under the contracts to use the United States Public Health Service the availability of such services was a benefit provided by law to employees performing this type of work Insofar as the amount of the Union s initi ation fee is concerned this is an internal matter to be de termined by the union membership itself The foregoing evidence shows during negotiations Re spondents without offering substantial concessions al though not required to do so adamantly insisted on eliminating various benefits under the existing contracts including the exclusive union hiring hall union trust funds and the union health welfare pension and vaca tion plans while insisting on instituting a broad manage ment rights clause and a probationary period for new employees and limiting the contractual rights of union representatives to access of Respondents vessels all of which proposals Respondents reasonably knew would be unacceptable to the Union which rejected them For the Union to yield to such bargaining demands would re quire it to renounce substantially all those major benefits acquired through prior negotiations and contracts Sti multaneously with bargaining Respondents as found supra also committed numerous and flagrant violations of the Act against unit employees which are not only in consistent with good faith bargaining but reflect the op posite Based on these reasons and on considering Re spondents union animus as established by its unlawful conduct and having rejected Respondents reasons for making such proposals I am persuaded and find Re spondents engaged in bad faith bargaining without any intention of reaching an agreement with the Union on new collective bargaining agreements Accordingly for the reasons stated I find Respondents since about De cember 27120 have refused to bargain in good faith with the Union and thereby violated Section 8(a)(5) and (1) of the Act Respondents bad faith bargaining negates their asserted defense that an impasse was reached during bar gaining I Unilateral Changes Involving Trust Funds and Creation of a Pension Plan The contracts between Respondents except for ACBL which did not have a contract with and was not a party to a contract with the Union and the union con tained provisions under Appendix A that required Re spondents to make monthly contributions for various em ployee benefits under the contracts to certain jointly ad ministered labor management trust funds These funds in cluded the Seafarers welfare plan which provided wel fare and similar benefits for eligible employees their fam ilies and dependents and a portion of which contribution was allocated under the plan to the Seafarers pension plan to provide annuity benefits to employees the Harry 120 This date is 6 months before the filing of the bad faith bargaining charge in Case 9 CA-15511 on June 27 1980 1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lundeberg School of Seamanship which provided train ing programs the Seafarers hiring hall trust fund which provided benefits in accordance with the trust agreement establishing it and the Seafarers vacation plan which provided vacation benefits for eligible employees These contributions were also used for the administration of these trusts and for other purposes determined by the trustees in accordance with terms of the trust agree ments The contribution rates based on a per day per man day worked by unit employees for both unlicensed and licensed employees of ABL and SOT and for em ployees of ITC Canal Division were as follows Seafar ers welfare plan $4 84 Harry Lundeberg School of Sea manship 50 cents Seafarers hiring hall trust fund 50 cents and Seafarers vacation plan $2 76 The rates for the licensed and unlicensed employees of ITC Canal Di vision were the same except for the Seafarers welfare plan which was $5 70 and the Seafarers vacation plan which was $5 25 Prior to December 31 Respondents pursuant to the contracts made payments to the Seafarers welfare plan Harry Lundeberg School of Seamanship Seafarers hiring hall trust fund and Seafarers vacation plan On December 31 Respondents discontinued making such payments to all four trust funds 121 Under the contracts between Respondents and the Union unit employees were provided retirement benefits under the Seafarers pension plan and Respondents made contributions to the plan that were used to provide these annuity benefits During negotiations as previously noted Respondents discussed with the Union the level of pension benefits and their costs and made certain pension proposals which were rejected by the Union On October 23 Re spondents also contacted a private carrier about obtain ing cost estimates for duplicating the Union s pension plan On January 3 1980 the union negotiating committee in a letter to employees reporting on the status of negoti ations mentioned the Respondents on their own had put into effect their company administered pension plan to replace the Union s pension plan Respondents official H J Bobzien Jr in a letter to all fleet employees dated January 9 1980 referred to ne gotiations and mentioned Respondents had made a final offer on benefits including a pension some of which benefits were attached to the letter On August 20 1981 Respondents executed a pension plan known as the Inland Tugs pension plan covering all Respondents unit employees122 who were represented by the Union which plan mentioned Respondents had withdrawn from the Seafarers pension plan 123 This plan set forth an effective date of January 1 1980 Kilroy acknowledged the plan was not furnished to the Union until about December 1980 and that the Union had never agreed to it 21 The charge filed in Case 9-CA-15923 concerning these unilateral changes in trust fund payments was filed on October 6 1980 122 The employees of ABL and SOT were transferred to ITC when ABL and SOT were merged into ITC 123 The charge in Case 9-CA-16255 concerning this unilateral change in the pension plan was filed on December 31 1980 Attorney Callahan who specializes in employment benefit law including pension plans and was presented as an expert witness by Respondents contended Re spondents pension plan was implemented and became of fective on January 1 1980 However in forming his opinion he relied among other things on the terms of the plan itself which stated the effective date was Janu ary 1 1980 According to Callahan the annual report filed for the plan with the Department of Labor for the year ending December 31 1980 reflects that approxi mately $167 000 had been paid into the plan however no dates were established to show when such payments were made No evidence was proffered to show when the plan was actually prepared or the circumstances surrounding its preparation Analysis and Conclusions The pleadings allege Respondents violated Section 8(a)(1) and (5) of the Act by unlawfully refusing since about December 31 to recognize and bargain with the Union by unilaterally discontinuing and refusing to pay monthly payments due and owing to Seafarers welfare plan Harry Lundeberg School of Seamanship Seafarers hiring hall trust fund and the Seafarers vacation plan and by unilaterally instituting a new pension plan for em ployees of ITC Respondents admit that about December 31 they discontinued making payments to these trust funds and unilaterally instituted a new pension plan for ITC s employees However they denied having violated the Act and asserted as defenses that a valid impasse had been reached in bargaining and Section 10(b) of the Act barred finding a violation Health welfare and pension fund plans in an expired contract constitute and aspect of employee wages and terms and conditions of employment that survive the ex piration of the contract Hen House Market No 3 175 NLRB 596 (1969) enfd 428 F 2d 133 (8th Cir 1970) This would also apply to employee vacation training and hiring hall fund plans which are also terms and con ditions of employment An employer may not unilateral ly alter payments to such plans unless (1) the changes are made subsequent to the parties reaching a bargaining im passe and the union has rejected the changes prior to the impasse (2) the employer demonstrates that at the time the changes were made the union did not represent a majority of the unit employees or that the employer had a good faith doubt based on objective considerations of the union s continuing majority status or (3) the union has waived its right to bargain regarding the changes Cauthorne Trucking 256 NLRB 721 (1981) The unilater al discontinuance of making benefit fund contributions violates Section 8(a)(5) of the Act and each failure to make contractually required monthly benefit fund pay ments constitutes a separate and distinct violation of an employers bargaining obligation Farmingdale Iron Works 249 NLRB 98 (1980) enfd 661 F 2d 910 (2d Cir 1981) The findings as admitted by Respondents establish since about December 31 Respondents have ceased making monthly contributions to the four trust funds de AMERICAN COMMERCIAL LINES 1155 scribed Because these trust funds and their contributions were required under the contracts and survived the expi ration of the contracts and each failure to make contrac tually required monthly benefit fund contributions consti tutes a separate and distinct violation of an employer s bargaining obligation I find that Respondents violated Section 8(a)(5) and (1) by unlawfully refusing to bargain with the Union by unilaterally refusing since April 6 1980 which is the commencement of the 6-month period before the filing of the charge in Case 9-CA-15923 on October 6 1980 to make the monthly benefit fund con tributions required under the contracts to the Seafarers welfare plan Harry Lundeberg School of Seamanship Seafarers hiring hall trust fund and Seafarers vacation plan The fording of a violation for failure to make such contributions prior to April 6 1980 however during which period the Union was aware these contributions were not being made is barred by Section 10(b) See Farmingdale Iron Works cited supra The evidence also shows and Respondents admit that they unilaterally instituted a new pension plan for ITC s employees Although the plan by virtue of a provision contained in the plan was retroactively effective to Jan nary 1 1980 the plan itself was not executed until August 20 1981 or furnished to the Union until about December 1980 Both the execution date that would have been when the plan actually came into existence rather than the effective date of January 1 1980 as well as the time it was presented to the Union fall within or after the 6 month period preceding the filing of the charge in Case 9-CA-16255 on December 31 1980 and therefore Section 10(b) of the Act would not constitute a vaild defense Inasmuch as the findings supra also establish Re spondents refused to bargain with the Union in good faith the impasse defense urged by Respondents is re jected because such a defense cannot validly be raised in the context of bad faith bargaining Based on the foregoing and having rejected Respond ents defenses I find Respondents violated Section 8(a)(5) and (1) by unlawfully refusing to bargain with the Union by unilaterally instituting a new pension plan for ITC s employees on August 20 1981 retroactively effec tive to January 1 1980 J Hiring Employees Without Utilizing the Union Hiring Hall Under the hiring procedures contained in article I sec tion 2 of the contracts set forth supra Respondents are required to secure all unit employees through the Union s hiring hall unless the Union does not furnish them in time to prevent delays in scheduled departures whereupon Respondents may obtain employees from any available source An exception exists for those employees without breaks in their current seniority regularly em ployed on boats who are not required to ship through the union hiring hall The Union s stnke124 against the Respondents began on July 14 1980 Although the Union contends it ended 124 The nature of the strike was not an issue and was not litigated on September 12 1980 and the Respondents on Septem ber 16 1980 the record contains conflicting testimony and references to the date it ended Manager Sheehan who was involved in the hiring of employees during the strike placed the strike as ending the middle of Septem ber 1980 I credit Sheehan on this point and find the strike ended on September 15 1980 Certain employees including both new and former employees were hired directly by Respondents without utilizing the union hiring hall Ray Helton s employment application dated August 27 1980 which lists experience making tow for Re spondents affiliates was mailed to Respondents that same date On September 11 1980 Linda Wilson who was formerly employed by Respondents as secretary to Manager of Training and Safety Mike Sheehan credibly testified that at the direction of Sheehan who corrobo rated her testimony she called Helton and informed him his references had been checked and his physical exami nation had been completed and approved by the doctor125 and he had a job She instructed Helton to contact the crew dispatcher for assignment to a boat Helton who did not attend the Academy thereafter started work on September 27 1980 Stan Mitoraj who had previously worked for Re spondents was rehired on January 16 1980 after a break in service due to being discharged He continued work ing until August 26 1980 when he was discharged by the boat s captain Supervisor Eve credibly testified after discussions with both the captain involved and Mitoraj who had complained to her about the discharge she felt Mitoraj was right and reinstated his seniority to January 16 1980 On September 21 1980 Mitoraj was rehired by the crew dispatch office without going through the union hiring hall Eve gave as the reason for not rehiring Mitoraj through the union hiring hall was that he was an old employee Jeff Slack was employed by Respondents from Sep tember 14 until October 1 1980 when he quit Supervi sor Eve credibly testified that after Slack talked to her about the circumstances of his quitting and pursuant to her request wrote her a letter explaining it she decided Slack was not at fault and reinstated his seniority to Sep tember 14 1980 Slack was rehired on November 3 1980 by the crew dispatch office Eve gave the reason for not rehiring Slack through the union hiring hall was because he was an old employee Richard Jackson who had previously worked for Re spondents on several occasions and was rehired on No vember 25 was discharged on September 11 1980 126 On September 19 1980 Jackson was rehired by Re spondents crew dispatch office127 in Harahan Louisi 125 The form reflects the doctor signed it on September 10 1980 126 A grievance filed by the Union on November 26 on behalf of Jack son seeking loss of wages from November 17 until the date of hire was settled about July 2 1980 for $239 127 Following Jackson s first discharge on July 26 1974 he was re hired on April 25 1977 by the crew dispatch office rather than through the union hiring hall 1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ana and he worked for the Canal Division Eve said the reason Jackson was not rehired through the union hiring hall was because he was an old employee James Gally was first hired by Respondents on Octo ber 14 On September 15 1980 he lost his seniority when he failed to show up for an assignment to a boat as scheduled On September 22 1980 Gally was rehired by the crew dispatch office Eve gave as a reason for not rehiring Gally through the union hiring hall that he was an old employee Kerry Ball who was hired by the crew dispatch office started work on September 16 1980 for MAC Supervisor Eve explained the reasons the union hiring hall was not used were because MAC s employees are represented by the Association rather than the Union and MAC did not have a hiring hall Craig McQueen began working for Respondents on September 19 1980 No evidence was proffered to show whether he had previously worked for Respondents or the circumstances of his hiring Although the pleadings also allege that Forrest Phillips was hired about August 9 1980 no evidence was prof fered to establish whether Phillips was actually hired or the circumstances surrounding his hiring Thirteen of the employees discussed below hired to perform unit work were new employees Craig Backherns began working for Respondents on October 21 1980 Previously he had submitted his em ployment a questionnaire and an Academy application all dated September 10 1980 a $150 check dated Sep tember 8 1980 toward his Academy tuition and he had attended the Academy Phillip Morris began working for Respondents on Oc tober 22 1980 Previously he had submitted his employ ment application and a questionnaire both dated Septem ber 12 1980 his Academy application dated September 2 1980 a $150 money order dated September 3 1980 toward his Academy tutition and he had attended the Academy Cameron Otopalik began working for Respondents on October 28 1980 Previously he had submitted his em ployment application a questionnaire an Academy appli cation and a $150 money order toward the Academy tuition all dated September 15 1980 and he had attend ed the Academy Although Manager Sheehan first stated these documents were received at a meeting held Sep tember 15 he later said he did not remember whether the meeting was held on that date John Buckman began working for Respondents on Oc tober 26 1980 Previously he had submitted his employ ment application and a questionnaire both dated Septem ber 12 1980 his Academy application and a $150 money order toward his Academy tuition both dated September 4 1980 and he had attended the Academy According to Manager Sheehan these documents were presented at a meeting held by Respondents on September 12 1980 Gary Lamkins began working for Respondents on Oc tober 28 1980 Previously he had submitted his employ ment application a questionnaire and a $150 money order toward his Academy tuition all dated July 22 1980 an Academy application dated July 21 1980 and he had attended the Academy Robert Denton began working for Respondents on October 23 1980 Previously he had submitted an em ployment application and a questionnaire both dated September 12 1980 an Academy application and a $150 check toward his Academy tuition both dated Septem ber 8 1980 and he had attended the Academy Gerald Morgan began working for Respondents on October 28 1980 Previously he had submitted an undat ed employment application an Academy application and a preemployment physical examination form both dated September 10 1980 and a $150 money order dated Sep tember 15 1980 toward his Academy tuition and he had attended the Academy Morgan also submitted a ques tionnaire dated October 27 1980 which Sheehan ex plained was completed after Morgan had completed the Academy According to Sheehan the Academy applica tion and medical form were filled out at a group meeting and the money order was mailed in by Morgan Prentice Danner Jr began working for Respondents on October 29 1980 Previously he had submitted an em ployment application a questionnaire and a $150 money order toward his Academy tuition all dated September 10 1980 an Academy application dated September 2 1980 and he had attended the Academy Marvin Pirtle began working for Respondents on Oc tober 28 1980 Previously he had submitted an employ ment application a questionnaire and a $150 check toward his Academy tuition all dated July 21 1980 an Academy application dated July 15 1980 and he had at tended the Academy According to Sheehan Pirtle picked up the Academy application on July 15 1980 and the meeting was held on July 21 1980 Ronnie Combs began working for Respondents on Oc tober 23 1980 Previously he had submitted an employ ment application and a questionnaire both dated Septem ber 12 1980 an Academy application dated September 2 1980 a $150 check dated September 6 1980 toward his Academy tuition and he had attended the Academy Jack Basham began working for Respondents on Octo ber 22 1980 Previously he had submitted an employ ment application a questionnaire an Academy applica tion and a $150 check toward his Academy tuition all dated September 10 1980 and he had attended the Academy Nathan Canon began working for Respondents on No vember 16 1980 Previously he submitted an employ ment application dated June 5 1980 128 received by Re spondents in an envelope postmarked that same date a questionnaire and an Academy application both dated July 11 1980 a $150 money order dated June 5 1980 toward his Academy tuition and he had attended the Academy According to Sheehan the check and ques tionnaire were presented at a group meeting held on July 11 1980 Kenneth Adkins began working for Respondents on December 29 1980 Previously he submitted an updated employment application a questionnaire and an Acade my application both dated September 10 1980 a $150 128 This was before the strike started t AMERICAN COMMERCIAL LINES 1157 money order dated October 9 1980 toward his Acade my tuition and he had attended the Academy While attending the Academy Backherns Morris Otopalik Buckman Lamkins Denton Morgan Danner Pirtle Combs Basham Cannon and Adkins would have been required to sign a $600 promissory note for the bal ance of the Academy tuition Respondents manager Sheehan explained they held group meetings for inexperienced employees who applied for work directly at Respondents During those meetings employees seeking work were informed about Respond ents operations and the Academy including physical ex animations they were required to pass and if they wanted employment they also filled out and submitted employment application forms deckhand questionnaires Academy applications and paid $150 toward the tuition to attend the Academy They were told the tuition to attend the Academy was $750 of which the employee paid $150 to Respondents toward the tuition and Re spondents paid the $600 balance to the Academy How ever while at the Academy employees were also re quired to sign a promissory note to Respondents for $600 Those employees were also guaranteed a job by Respondents after graduating from the Academy which training lasted 2 weeks and were informed that for each month they worked for Respondents thereafter the $600 promissory note was reduced by $50 per month by writ ing it off until the note was dissolved If the employees then worked an additional 3 months the $150 was re turned to them Within a couple of days following grad uation from the Academy an orientation meeting was held by Respondents for those graduates and thereafter when boats were available they were dispatched to them and began their employment with Respondents and start ed receiving their wages While attending the Academy those employees were not paid by Respondents or cov ered by any of Respondents benefit plans For those em ployees who dropped out of the Academy the $150 tui tion was refunded Sheehan denied Respondents have ever rejected for employment any of the employees on their graduation from the Academy and was not aware of any of them starting work elsewhere Sheehan acknowledged that during July through Sep tember 1980 employees who applied for work were not informed of the union hiring hall Although Sheehan stated at the time employees were being interviewed they were not usually told about the strike a majority of them asked about it Analysis and Conclusions The pleadings allege contrary to Respondents denials that Respondents violated Section 8(a)(1) and (5) of the Act by unlawfully refusing to recognize and bargain with the Union by unilaterally without utilizing the union hiring hall hiring employees Ray Helton Stan Mi toraj Jeff Slack Richard Jackson James Gally Kerry Ball Craig McQueen Craig Backherns Phillip Morris Cameron Otopalik John Buckman Gary Lamkins Robert Denton Gerald Morgan Prentice Danner Jr Marvin Pirtle Ronnie Combs Jack Basham Nathan Cannon Kenneth Adkins and Forrest Phillips Respond ents contend Helton Backherns Morris Otopahk Buck man Lamkins Denton Pirtle Combs Basham McQueen Cannon and Adkins were all hired pursuant to agreements made prior to September 16 1980 The above evidence establishes that certain of these employees were hired directly by Respondents without utilizing the union hiring hall Helton applied for work and was hired during the strike although he did not report to work until after the strike ended Mitoraj and Slack were rehired after their seniority was reinstated and as employees without breaks in their current semon ty Respondents were permitted under the hiring hall provisions exception to employ them directly Although Jackson was rehired after being discharged since a grievance over his discharge was settled it appears he would have retained his current seniority and could have been hired directly by Respondents as a current employ ee Ball who was hired as an employee of MAC was not subject to the Union s hiring hall procedures which did not cover MAC s employees Although McQueen began work after the strike ended absent evidence as here to show whether he possessed seniority or the cir cumstances of his hiring no determination can be made concerning whether he was hired contrary to the con tracts hiring hall provisions There was no evidence to show whether Phillips was actually hired Gally who had lost his seniority was rehired on September 22 1980 after the strike ended with Eve giving as the reason he was an old employee However having lost his seniority the contract provisions precluded Respond ents from hiring him directly The fact that Respondents had previously hired such employees directly as dis cussed supra would afford no defense to Respondents because the Union had not agreed to such an exception or waived its contractual rights but instead had protest ed such conduct Backherns Morris Otopalik Buckman Lamkms Denton Morgan Danner Pirtle Combs Basham and Cannon had all applied for work and paid their required $150 fees to attend the Academy and would have been guaranteed jobs by Respondents during the strike al though they did not actually begin working for Respond ents until after the strike ended Because they applied for work during the strike and would have been given a commitment of employment and paid the necessary fees toward receiving the required training for their employ ment I find Respondents did not violate the contracts hiring hall provisions by employing them Regarding Adkins because he did not pay his required $150 fee which would indicate he had accepted Respondents offer of a guaranteed job until after the strike ended I find Respondents by hiring Adkins who began work on December 29 1980 did so contrary to the contracts hiring hall provisions Based on the foregoing evidence and for the reasons stated I find Respondents unlawfully refused to bargain with the Union by unilaterally repudiating the contracts hiring hall provisions by hiring James Gally on Septem ber 22 1980 and Kenneth Adkins who began work on December 29 1980 and thereby violated Section 8(a)(5) and (1) of the Act 1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD K Respondents Refusal or Delay in Furnishing Information to the Union Union Patrolmen Carter Singletary Novack 0 Con nell Heindell Marrone Dagan and Hall all credibly tes tified without denial that after September 16 they along with other patrolmen including Vernon Baker requested and were denied crew lists by the captains or pilots aboard Respondents vessels as follows captain of the Dell Butcher September 25 1980 Captain Lenward Ste vens of the Charles Peters September 30 1980 Captain David Shirah of the Carl Shelton October 9 1980 Pilot Hayes of the W A Kernan October 14 1980 Captain Claude McDonald of the Louis Enlow October 17 1980 Captain Shirah of the Carl Shelton October 21 1980 Captain Lowell Clark of the Harry Mack October 28 1980 129 Captain William Kelly of the Dell Butcher Oc tober 30 1980 captain of the Jack D Wofford Novem ber 12 1980 Captain Collins of the Frank Rader No vember 19 1980 Captain Eddie Lancaster of the Floyd Blaske March 9 1981 Captain Marsh of the Charles Lehman March 16 1981 130 Pilot Sherman Henson of the R W Naye April 1 1981 Captain of the W L Watson March 23 1981 captain of the Carl Shelton April 8 1981 Captain Singletary of the Wilbur Mills April 9 1981 Pilot Gene Shroeder of the J W Hershey December 13 1980 Pilot Red Lovell of the J W Her shey January 28 1981 Captain Tony Turner of the Chi cago Trader February 24 1981 Captain Tony Turner of the Dell Butcher April 23 1981 Captain Ray Dryden of the Hugh Blaske April 30 1981 Captain James Philpott of the Dennis Hendricks September 27 1980 Captain Worsthous of the Charles Peters October 17 1980 Cap tarn Clark of the Harry Mack September 29 1980 pilot of the Wally Roller September 29 1980 Captain Joiner of the Sonny Ivey November 13 1980 Captain Abbott of the R H 0 Neal November 25 1980 Captain Cortez of the Wilbur Mills December 5 1980 Captain Allen of the R W Naye January 21 1981 Pilot Bonecutter of the A C Shelton February 2 1981 Pilot Jack Grayson of the Hugh Blaske February 2 1981 Bateman who was the captain or pilot of the Sonny Ivey February 5 1981 captain of the Dan Hogan February 25 1981 Pilot Eddie Marsh of the Charles Lehman February 27 1981 Captain Lancaster of the B W Maythaler March 11 1981 Captain Richardson of the Wilbur Mills March 11 1981 Captain Turner of the Joe Bobzien April 9 1981 Pilot Mike Rainer of the Jack Bullard April 27 1981 Captain Shelton on the Louis Meece April 2 1981 Cap tarn Chester Rayburn of the Frank Phipps October 8 1980 Pilot French Snap of the Lenward Stephens No vember 6 1980 Pilot Wayne McCurry of the Jack Bul lard November 3 1980 Pilot Ed Conklin of the W A Kernan November 3 1980 Captain Don Ricketts of the James E Nivin December 8 1980 Pilot Nick 129 The identity of the pilot who Patrolman Heindell thought was named Mike Hanley was not established and Supervisor Eve credibly denied Respondents employed a person by that name as captain or pilot in 1980 130 Although Patrolman Hall also claimed he asked Pilot March for a list his testimony was unsupported by Patrolman Dagan and I credit the denial of Pilot Marsh who was off duty at the time that he had any con versations with Hall or Dagan Bateman of the Sonny Ivey January 26 1981 Captain Bryon Barrett of the Dan Hogan March 12 1981 pilot of the James W March 12 1981 Captain A C Shelton of the Dell Butcher January 28 1981 Captain Bryan Mentt of the Dan Hogan February 2 1981 Pilot Jim Stross of the Phil B February 4 1981 Pilot Larry Potter of the R H 0 Neal March 24 1981 and Pilot Eddie Marsh of the Charles Lehman April 4 1981 The reason given to these patrolmen by these captains and pilots for refusing to furnish them the crew lists in cluded they were acting on instructions or advice or orders from the Respondents they were not authorized to or did not have to they could not without the cap tarn s permission there was no reason for the Union to have one the Union could get it from the crew or Re spondents Jeffersonville office they did not have one and in some instances no reasons were given Captains Shirah and Kelly and Pilots Hughes and Henson admitted they refused to furnish crew lists on those occasions On several occasions although Patrolmen Novack and O Connell were not shown the sign on slips of the crew members they were furnished by the captain or pilot with the names and certain information such as job clas sifications to which they either agreed were sufficient or voiced no objections This occurred on the Pat Breen October 14 1980 John Mathews November 7 1980 and Dell Butcher December 9 1980 Patrolmen Novack Hall Carter Singletary and O Connell testified concerning other occasions involving crew lists However their testimony involving the Dennis Hendricks November 14 1980 Hugh Blaske Sep tember 30 1980 Dan Hogan October 8 and 23 1980 Bill Froerich March 25 1981 Frank Rader April 4 1981 Dennis Newman November 18 1980 Clyde Butch er December 29 1980 Bob Koch January 27 1981 Charles Lehman April 23 1981 Carl Shelton October 28 1980 Harry Mack January 12 1981 W A Kernan March 23 1981 and the Dan Hogan October 23 1980 reflects no requests for crew lists were made or they were uncertain about whether they boarded the vessels or actually requested such lists On other occasions in volving the Hugh C Blaske March 10 1981 R H O Neal November 20 1980 R W Naye November 12 1980 Dell Butcher January 13 1981 Wilbur Mills Octo ber 9 1980 W 0 Watson November 3 1980 Pat Breen April 21 1981 and Lenward Stephens October 28 1980 the patrolmen could not positively identify the persons to whom they spoke as being the captains or pilots of those vessels Although Patrolman Novack testified February 3 1981 that he requested a crew list from Captain Peter Alouise aboard the Frank Phipps and Alouise refused to supply him with such list Respondents payroll records reflect Alouise was not assigned to the vessel on that date Therefore I find no such request for a crew list was made for that vessel at the time alleged Both Patrolmen Marrone and 0 Connell stated they asked Captain Ralph Hutson aboard the Bill Elmer on February 20 1981 for a crew list which he refused to give them Under cross examination Marrone confronted AMERICAN COMMERCIAL LINES 1159 with a patrolman s report acknowledged it stated 0 Connell asked for the list but said he did not recall hearing 0 Connell ask Captain Hutson denied talking to the patrolmen while they were aboard and I credit his testimony rather than the conflicting testimony given by Marrone and 0 Connell Although Patrolman Carter stated on March 21 1981 he boarded the Charles Peters and asked Captain Steven son who he said he had worked for before for a crew list which Stevenson refused to give him Supervisor Eve credibly denied knowledge of any captain or pilot named Stevenson who worked for them during the period 1978 through 1981 Patrolman Carter also claimed on March 21 1981 Captain Walker aboard the Joe Bobzien refused his re quest for a crew list However Respondents payroll records reflect Captain Walker was not employed aboard that vessel at the time but was captain of the V W Maythaler and Kenneth Wofford was captain of the Joe Bobzten Further Wofford denied ever working aboard the Joe Bobzien I credit Wofford whose testimony was supported by Respondents records and I find Carter did not request a crew list from him on that occasion The employment record which is a sign in and sign off sheet 131 for each crewmember aboard the vessel and referred to as a crew list by union patrolmen lists the employee s name social security number company boat job rating date boarded with time and place hours worked and address to mail their checks to When the employee leaves the vessel it lists the date time and place off hours worked reason off whether properly re lieved and signature lines for the employee and master of the vessel to sign It also contains spaces to be filled out by new employees or if a change has occurred and who to notify in case of accident The patrolmen prepare reports of their visits aboard Respondents vessels which are submitted to the Union and maintained at the Union s port office from which the vessels are serviced and at the Union s office located in New York New York These reports contain inter alia a page for listing the crewmembers names and their rat ings book numbers social security numbers whether they attended the Lundeberg School the port and date they joined the vessel and whether they signed check offs with the reason if they refused Several patrolmen Carter Hall and Novack testified concerning their purposes in obtaining the crew lists They all used it to identify the crewmembers aboard Carter and Novack also said they used it to determine whether new employees were aboard and if the proper manning scale was being maintained However Carter acknowledged he had no knowledge of any agreement setting out a manning scale 132 Both Carter and Hall claimed it was used to determine whether the hiring hall was being used but acknowledged it did not show such information itself Carter first said but later denied he 3 This consists of an original and three copies One copy is retained in the wheelhouse by the captains or pilots two copies go to the office and the other copy is given to the employee wanted it for purposes of seniority which was not shown on the crew list Additional reasons given by Carter were to update crewmembers addresses and find out who to contact in case of emergenc,les Patrolman McGregor and Union Port Agent Augustin Tellez' 33 described that the purpose was to get the names of the crewmembers so that the patrolman reports could be filled out Patrolmen Carter Hall Singletary and Tellez stated they were all instructed by the Union to include the list of crewmembers in their patrolman s reports However Carter Hall and Singletary denied any reason was given to them for doing so The information Carter Hall McGregor Novack and O Connell listed from the crew lists on their patrolman s reports included the crewmembers names job ratings social security numbers and port and date joined That same information could be obtained from crewmembers and to complete the patrolmam reports they would also have to get from crewmembers whether they attended the Lundeberg School their book numbers and whether they signed checkoffs Port Agent Michael Worley stated on occasions in 1979 he would not request crew lists but would get the information directly from the crewmembers During 1978 and early 1979 he also got crewmembers to write their own names on the patrolman reports to get partici pation out of crewmembers and instructed his patrolmen to do likewise Carter said in 1979 he did not always ask for or get crew lists but sometimes got the information from crewmembers Patrolman Dean Corgey testified in 1979 the majority of the time he got the information from crewmembers Other patrolmen including Hall Novack and 0 Connell all acknowledged having ob tamed information from crewmembers Since at least January 1 and in 1980 and 1981 patrol man reports prepared by union patrolmen on frequent occasions have not contained the names and/or social se cunty numbers and/or ports and dates joined vessels and/or job ratings of numerous employees on board the vessels covered by such reports On frequent occasions during this same period the patrolman reports have con tamed such information During this same period union patrolmen on frequent occasions have not contacted nu merous employees aboard Respondents vessels when the patrolmen were on board and on frequent occasions during the same period they have contacted numerous employees while aboard the vessels Various witnesses presented by Respondents including Port Agents Tellez James Martin and Pat Pillsworth and Patrolman James McGee acknowledged that on nu merous occasions during 1979 the patrolman reports con cerning their visits to vessels did not contain complete information regarding the crewmembers Port Agent Worley acknowledged that after being in formed by various patrolmen they were denied crew lists and told to contact Vice President Kilroy that he re 182 The contracts which refer to a manning scale in app I do not list 139 Tellez was formerly a patrolman from December 1979 to January specific numbers of employees 1981 1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quested of Kilroy the crew lists of several boats where upon Kilroy showed him the computer printout of the boat payroll records for these days On September 12 1980 Union Attorney Cutler by telegram requested Respondents vice president Kilroy to furnish copies of weekly boat payroll records neces sary for the additional reasons of assisting the Union in policing Respondents use of the hiring hall Cutler by letter to Kilroy dated September 22 1980 referring to a conversation on September 19 1980 re newed the request for weekly boat payroll records giving as additional reasons to verify whether employ ees are properly relieved and other reasons why employ ees are off the boats and to verify dates times and loca tions when employees go on and off boats in order to calculate the amount of pay due them Kilroy by response letter to Cutler dated September 25 1980 which also referred to the prior conversation stated weekly boat payroll records had previously been provided to the Union for the sole purpose of allowing it to check whether proper contributions were made to various union trust funds134 and because contributions were no longer being made to such funds those records would not be turned over to the Union in toto The letter further stated such records did not show whether employees were properly relieved or off boats and that information as well as dates times and places employees got on and off boats and the calculation of pay due them were contained in other records and if the Union had a particular problem any record or information needed to make an intelligent decision regarding it would be pro vided to the Union Union Port Agent Worley testified in October 1980 he met with Vice President Kilroy Supervisor Eve and Gaye Decker who is secretary and assistant to Kilroy during which he requested certain information including boat payroll records for January 1 to October 3 1980 Kilroy did permit him to see boat payroll records but only for those dates for which he requested crew lists of certain boats 135 Although Decker denied in her meeting above with Worley he requested payroll records for Jan uary 1 to October 3 1980 neither Kilroy nor Eve denied Worley made such a request to them at that meeting and Kilroy acknowledged beginning in late September or Oc tober 1980 Worley had requested boat payroll records I credit Worley s testimony that he requested the boat payroll records for January 1 to October 3 1980 From October 1980 to about June 1981 Worley ac knowledged receiving boat payroll records for that period These records were usually provided by Decker after Worley told her which records he wanted to see Kilroy by letter to Worley dated November 11 1980 acknowledged receiving Worley s request for a number of boat payroll records136 and claimed it was obvious 134 Cutler in a letter to Kilroy dated September 26 1980 disputed this reason 135 Thirteen copies of crew lists for various vessels covering periods in August and September 1980 were presented as evidence by Respondents which Kilroy stated were given to Worley beginning in late September or early October 198 Worley on November 10 1980 had requested Decker to furnish boat payroll records for certain dates Worley had already seen many of them The letter stated Kilroy was assuming Worley wanted copies of boat pay roll records after September 16 1980 for Worley s stated purpose of verifying the company s compliance with the Board s settlement agreement and inquired about the need for such records prior to that date On December 8 1980 Worley had a conversation with Kilroy during which he again requested weekly boat payroll records for January 1 through October 3 1980 mentioning that prior to the expiration of the con tracts the Union was furnished weekly boat payroll records and explained such information was helpful in re solving disputes on transportation and overtime deter mining whether the boats were running short handed and for seniority purposes Kilroy in a letter to Worley dated December 11 1980 informed him that his December 8 request for copies of all boat payroll records since January 1 1980 along with workcards on all employees also requested was an enor mous amount of records and copying and even if pro duced would not resolve any seniority problems Instead the letter mentioned Respondents were preparing a new seniority list which would be furnished to Worley to de termine any questions the Union had on seniority Worley by reply letter to Kilroy dated December 17 1980 pointed out he had only requested all boat payroll records from January 1 through October 3 1980 and ob jected to receiving a seniority list in lieu of being fur nished the boat payroll records and renewed the request for such records The letter also mentioned the Union had offered to pay the expenses involved in preparing such information Worley credibly denied ever receiving all the boat payroll records requested for January 1 through October 3 1980 Boat payroll records copies of which were furnished to the Union on a weekly basis before December 30137 and again from October 1980 to about July 1981 and as described by Port Agent Worley and Respondents time clerk Mary Krall reflect the names of the companies operating the vessels identity of the vessels weekly pay roll periods covered employees names and job classifi cations dates and times employees got on and off the vessels the port where they joined the vessels a column to indicate when the dispatcher or payroll office was no tified the employees got on or off the vessels a remarks column that would indicate the reasons the employees left the vessels a column showing the amount of time credited for the days employees got on or off the vessels the number of days paid for employees numbers occu pational code miscellaneous information and other pay Notations were also made on the records about overtime whether employees had received wage advances and whether employees were new employees The boat payroll records as explained by Worley were needed by the Union to help resolve disputes con cerning wages waiting time overtime wage advances whether a boat was operating short handed seniority 137 From December 31 until early October 1980 Respondents did not furnish the Union with copies of the records AMERICAN COMMERCIAL LINES 1161 and to determine whether new employees were referred by the union hiring hall Respondents also sent to the Union lists of employees hired due to emergencies These lists showed the vessels the employees worked on the dates they boarded the vessels the Company operating the vessels and the em ployees social security numbers telephone numbers home addresses and job classifications Cutler by letter to Kilroy dated October 20 1980 re quested a list of names addresses social security num bers and employment dates of all current unit employees giving as reasons that such information was necessary for the Union to determine whether the union security pro visions of the contracts had been complied with The letter also mentioned that previous information furnished by Respondents was insufficient because it did not in clude dates of termination or hire On October 31 1980 Kilroy provided Worley with a list However Cutler by letter to Kilroy dated Nov in ber 11 1980 stated that although the list received includ ed names addresses social security numbers and job classifications for the payroll period ending October 5 1980 it failed to provide the dates of employment as re quested and renewed the request for that information The letter also stated that the list which contained 438 names did not include Carl Mathis and implied the list did not contain the names of all chief engineers and em ployees who were on authorized time off According to Kilroy s undisputed testimony the day after receiving Cutler s letter he mentioned to Worley he was getting requests from both Cutler and Worley in dif ferent forms whereupon Worley pursuant to his inquiry told him to give the information to Worley the way Worley wanted it Kilroy by letter to Worley dated January 29 1981 sent him seniority lists for ITC stating if Worley had any questions concerning them to advise him These seniority lists submitted contained employees names their num bers social security numbers seniority dates and reflect ed whether they were ITC engine department employ ees and listed those employees in the Canal Division Worley by response letter to Kilroy dated February 4 1981 claimed the lists submitted were not complete be cause they did not contain the job classifications of all persons as well as other information It stated that the Union could not accept the lists as being accurate be cause Respondents had not provided the Union with no tices of discipline againt employees which could have re sulted in a loss of claim to seniority Listed were nine names whose seniority dates the Union contended were incorrect The letter also referred to alleged discrimina tees pending before the Board whose names were not listed or incorrect dates given for them and requested copies of employment cards signoff slips employment applications and disciplinary actions be provided for 16 other employees in order for the Union to determine their correct seniority dates Kilroy by letter to Worley dated February 6 1981 suggested a meeting be held to discuss the Union s objec tions to the list and resolve any conflicts However Worley by response letter to Kilroy dated February 18 1981 stated Kilroy had failed to respond to the Union s request for information concerning the se niority list and renewed all requests for information made in the February 4 letter after receipt of which the Union would consider Kilroy s request Worley ex plained that the Union needed the employment dates for seniority purposes and to identify employees hired from sources other than the union hiring hall which could be ascertained by matching the names and dates with job orders placed and filled through the Union Cutler by letter to Kilroy dated December 30 1980 requested the following information and documents stat ing they were relevant and necessary for the Union to properly represent the employees and to administer the provisions of the contracts regarding the hinng hall 1 A seniority list as of December 31 1979 giving the names social security numbers job titles and dates of hire of all employees in the bargaining unit 2 A current seniority list containing the names social security numbers job titles and dates of hire of all employees currently in the bargaining unit 3 A list of all employees terminated (either vol untarily or involuntarily) from December 31 1979 to the present (including all employees who were transferred out of the bargaining unit to another job) with each such persons date of termination and reason for termination 4 A list of all persons hired into the bargaining unit from December 31 1979 to the present with the names social secunty numbers job titles and dates of hire of all persons not listed in items one and two above 5 The employment card for each employee de scribed above This letter ended by stating Cutler hoped to hear from Kilroy by January 12 1981 or he would assume Kilroy was refusing to provide the information Worley denied Respondents responded to their De cember 30 1980 request except for furnishing the senior ity list on January 29 1981 Kilroy acknowledged a seniority list as of December 31 was not provided because no such list existed The Union s attorneys had also made a written request for such a list on December 31 1980 for use in an arbitra tion matter and were informed by Respondents attorney by letter dated January 5 1981 no such list existed or was maintained Kilroy admitted however such a list could be compiled from Respondents records but claimed it would take a lot of time and involve an enor mous amount of work Supervisor Eve explained that Respondents seniority list is set up according to employees dates of seniority and covers all job classifications mixed together Present ly a seniority list is kept for ITC138 and one for MAC 138 Kilroy advised Cutler by letter dated June 20 1980 that ABL and SOT had been merged into ITC and NTC no longer operated any ves sels 1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD whereas in late 1979 a seniority list was kept for ITC and ABL together with separate lists each for SOT and MAC This list is maintained on a daily basis with names added or deleted and no record is kept showing what the list contained before such changes were made Accord ing to Eve to construct a seniority list as of December 31 would involve reviewing approximately 1500 to 2000 employment cardsi39 to determine whether employees worked during that period or had breaks in their seniors ty before then in addition to checking records of other departments to which employees may have transferred Eve estimated it would take a person working full time approximately 6 months to prepare the information On January 29 1981 Respondents as previously dis cussed provided the Union with the seniority lists for ITC containing the employees names employee num bers social security numbers seniority dates whether they were engine department employees and listed those employees in the Canal Division However the list did not contain the job titles as requested which failure the Union objected to Kilroy had previously informed Worley a seniority list was being prepared and stated he had provided it to the Union as soon as a crew dispatch office had prepared it Regarding the requested list of all employees terminat ed since December 31 Kilroy stated on receiving the letter he instructed the crew dispatcher to develop the information However it was never completed because he subsequently instructed them to cease working on the list giving as his reason the Union had refused to meet with Respondents to discuss seniority problems Worley confirmed that the Union had not received such a list of terminated employees with the dates or reasons Concerning the requested list of employees hired since December 31, Kilroy stated they were putting the infor mation together but he had his secretary stop because the Union had refused to meet with Respondents to dis cuss seniority problems However Kilroy on January 14 1982 credibly testified without denial that over the past few months Worley was provided the information on a piecemeal basis and as far as he knew Worley was given all the information requested Regarding the employment cards of all employees re ferred to Kilroy acknowledged he took no steps to comply with this request because they would have to pull all the employment cards and copy them and they would be available at any discussions with the Union re garding the application of seniority According to Kilroy beginning in late September or October 1980 Worley requested and was furnished employment cards in various meetings at Respondents office 140 Decker also said she provided those employment cards requested by Worley during her meetings with him Worley ac knowledged from October 1980 to March 1981 request ing and receiving copies of employment cards during meetings with Respondents or afterward Worley gave reasons that the Union needed certain in formation requested Social security numbers were used for filing purposes keeping track of employees and dis tinguishing between employees having the same names Job titles were used for seniority purposes and to deter mine which jobs employees worked on because pay rates differed between job classifications Names of terminated employees were necessary for the Union to represent them ascertain when they lost their seniority whetner they lost it improperly and were entitled to reinstate ment and for purposes of grievances Employment cards were used to determine the source from which employ ees were hired eligibility for upgrading job clasifications use in processing applications for vacation benefits 141 and updating the Union s mailing list The Union apart from the lists received on October 31 1980 and January 29 1981 referred to supra had previously requested and been provided with seniority lists by Respondents in 1977 about July 1980 and in September 1980 The 1977 and July 1980 lists contained the names of employees their dates of hire social securi ty numbers and job classifications while the September list consisted of names of engineers with their job classi fications and seniority dates Prior to the expiration of the contracts Worley ac knowledged that the Union received weekly lists of new employees hired from sources other than the union hiring hall Respondents which had stopped furnishing the lists after the contracts expired also furnished the Union lists of new employees hired with their addresses and social security numbers for July August and Sep tember 1980 The Union as acknowledged by Kilroy had paid for information prepared or received from Respondents in cluding copies of payroll records and employment cards Worley in October 1980 requested from Kilroy copies of notices affecting the wages hours and conditions of employment of unit employees which were provided to him Worley by letter to Kilroy dated January 27 1981 requested such notices covering from October 6 1980 which was the date of the last notice provided him to the date giving as reasons that such information was needed for the Union to properly represent the employ ees Worley denied any response was given to his latter request Kilroy acknowledged he took no action as a result of the letter However he credibly testified without denial he had already sent copies of all such notices to Union Vice President Sacco No evidence was proffered to show any delay by Respondents in furnishing such no tices iss These cards contain employees names addresses social security numbers boats they worked on and the dates and job classifications days worked and a remarks section under which reasons are listed for em ployees leaving the boats 140 Kilroy in a letter to Worley dated November 11 1980 claimed it was obvious Worley had seen many of the records he requested and for Worley to provide his specific need for a copy of each employee s work card Analysis and Conclusions The pleadings as clarified by a more definite statement furnished by the General Counsel allege contrary to Re 141 Until about January 1980 Respondents payroll coordinator Martha Brown sent records to the Union monthly reflecting the number of vaca tion days for each employee AMERICAN COMMERCIAL LINES spondents denials that Respondents unreasonably de layed in furnishing or refused to furnish certain informa tion requested by the Union which was necessary and relevant to the Union s performance of its function as the bargaining representative of the unit employees The law is well established that a union obligated to represent bargaining unit employees with respect to their terms and conditions of employment is entitled to such information from the employer as may be relevant and reasonably necessary to the proper execution of that obli gation not only for the purpose of negotiating a contract but also for the purpose of administering a contract Wes tinghouse Electric Corp 239 NLRB 106 107 (1978) enfd as modified 648 F 2d 18 (D C Cir 1980) The test for determining a union s need for such information is a showing of probability that the desired information was relevant and that it would be of use to the Union in car rying out its statutory duties and responsibilities NLRB v Acme Industrial Co 385 U S 432 437 (1967) Informa tion on such matters as wages fringe benefits and em ployment data concerning unit employees is presumptive ly relevant for purposes of collective bargaining Bauer Welding & Metal Fabricators 256 NLRB 39 40 (1981) enf denied and remanded on other grounds 676 F 2d 314 (8th Cir 1982) and Eskimo Radiator Mfg Co 255 NLRB 304 306 (1981) The findings supra establish that on approximately 59 occasions between about September 25 1980 and April 30 1981 that union patrolmen requested and were denied crew lists by the captains or pilots of various ves sels of Respondents Although the union patrolmen claimed various reasons for seeking the crew lists they were used primarily to fill out portions of their patrol men s reports during their visits to Respondents vessels which reports were then filed with the Union They did not always request such lists but on numerous occasions obtained the same information directly from the crew members and even had crewmembers write their own names in the patrolmen s reports The Union s officials were provided at their requests with the same information contained on the crew lists This information was provided in the form of records such as a weekly boat payroll record which was fur nished to the Union during this same period of time from October 1980 through April 1981 and Port Agent Worley was also shown boat payroll records and crew lists for dates in September 1980 which he requested Absent as here any contractual right or past prac tices142 requiring Respondents to furnish crew lists to the union patrolmen and because the Union was provid ed with the same information through other records at the requests of union officials who themselves had not requested the crew lists on those occasions I do not find Respondents unlawfully refused to provide crew lists to the union patrolmen on these occasions as alleged The evidence also establishes since about September 12 1980 Respondents have refused the Union s requests to furnish it with copies of the weekly boat payroll 142 Although the pleadings initially alleged that the Union was entitled to these crew lists pursuant to past practice this part of the allegation was deleted after evidence adduced at the hearing showed otherwise 1163 records from about January 1 to October 3 1980 Such records which were furnished to the Union prior to ex piration of the contracts are used by the Union to police various provisions of the contracts and I find such infor matron is therefore clearly relevant and reasonably nec essary to the Union s proper performance of its statutory obligations in representing the unit employees On October 20 1980 the Union requested a list of names of all current unit employees with their addresses social security numbers and employment dates This in formation except for the employment dates was fur nished to the Union about October 31 1980 Following a renewed request by the Union on November 11 1980 for the employment dates they were subsequently fur nished to the Union on January 29 1981 No explanation was proffered to justify this delay in furnishing the infor matron on the employment dates which I find was an unreasonable delay Because such information was sought by the Union for seniority purposes use in identi fying employees hired outside the union hiring hall and in determining whether the union security provisions of the contracts were complied with I find such informa tion was clearly relevant and reasonably necessary to the Union s proper performance of its statutory obligations in representing the unit employees The Union s December 30 1980 request for a seniority list as of December 31 1979 was denied by Respond ents Although no such list existed Respondents ac knowledged one could be compiled from Respondents records although it would take a lot of time and involve a lot of work However while the Union in its written request stated the information was relevant and neces sary for the Union to properly represent the employees and to administer the hiring hall provisions of the con tracts it proffered no evidence to establish the necessity or relevance of such a list for a period ending a year ear her when the contracts expired Absent as here evidence to show such information was relevant or reasonably necessary for the Union to properly perform its statutory obligations in representing the unit employees I do not find Respondents refusal to furnish such information to be unlawful Following the Union s December 30 1980 request for a current seniority list containing the names social secu rity numbers job titles and dates of hire of all unit em ployees Respondents on January 29 1981 143 furnished such a list to the Union but without the job titles which the Union objected to Because job titles were used by the Union for seniority purposes and to determine which jobs employees worked on because the pay rates differed between job classifications I find such information on job titles was relevant and reasonably necessary to the Union s proper performancce of its statutory obligations in representing the unit employees Respondents also refused to furnish the Union pursu ant to its December 30 1980 request with a list of all unit employees terminated since December 31 1979 with the dates of their termination and the reasons The 143 Because this list was provided to the Union as soon as it was pre pared I find no unreasonable delay by Respondents in furnishing it 1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union needed such information to ascertain whether those terminated employees lost their seniority whether they lost it improperly and were entitled to reinstate ment and for grievance purposes which information I find was relevant and reasonably necessary to the Unions proper performance of its statutory obligations in representing the unit employees Respondents also refused at the time to furnish the Union pursuant to its December 30 1980 request a list of all employees hired in the unit from December 31 1979 with their names social security numbers job titles and dates of hire whose names were not on the seniority list requested at the same time The Union s reason for needing to know who the new employees were was to determine whether they were referred by the union hiring hall which I find was relevant and rea sonably necessary information for the Union s proper function as bargaining representative of the unit employ ees However Respondents had previously furnished the Union with lists of new hires from sources other than the union hiring hall with their addresses and social security numbers for July August and September 1980 and over a period of a few months prior to January 14 1982 Port Agent Worley was provided with the information re quested on a piecemeal basis Therefore although such information was furnished I find there was an unreason able delay in furnishing such information to the Union Although Vice President Kilroy gave as the reason the requested lists of terminated and newly hired employees were not prepared when requested was because the Union had refused to meet and discuss seniority prob lems this would not relieve Respondents of their lawful obligation to furnish such information herein found The Union s December 30 1980 request for each em ployee s employment card was not complied with by Re spondents although both prior and subsequent to the re quest Port Agent Worley was furnished copies of certain employee employment cards he requested 144 The Union s reasons for seeking such cards were to determine the sources from which employees were hired their ell gibility for upgrading job classifications and for use in processing vacation benefits which information I find was relevant and reasonably necessary for the Union s proper function as bargaining representative of the unit employees Insofar as the Union s January 27 1981 request for copies of notices affecting the wages hours and condi tions of employment of unit employees is concerned the findings establish these notices had already been sent to one union official and therefore there was no refusal to furnish them to the Union or any delay shown in doing so Based on the foregoing findings and for the reasons in dicated I find Respondents by refusing since about Sep tember 12 1980 to furnish the Union with the weekly boat payroll records from about January 1 until October 3 1980 unreasonably delayed from about October 20 1980 until January 29 1981 in furnishing the Union with the employment dates of the unit employees refus ing since about December 30 1980 to furnish the Union 144 The cards that he received copies of were not identified with the job titles of unit employees refusing since about December 30 1980 to furnish the Union a list of all the unit employees terminated since December 31 1979 with the dates of their terminations and the reasons un reasonably delayed from about December 30 1980 to about January 1982 furnishing the Union with a list of all employees hired in the units from December 31 1979 with their social security numbers job titles and dates of hire and refusing since about December 30 1980 to fur nish the Union with copies of all employment cards of unit employees all of which information was relevant and reasonably necessary for the Union s proper execu tion of its bargaining obligations have violated Section 8(a)(5) and (1) of the Act L Chartering Vessels Article I section 1 which is the recognition clause of the contracts between Respondents and the Union pro vides in pertinent part as follows The Company recognizes the Union as the sole bar gaining agent for on boats owned operated or chartered on a bareboat basis by the Company when the crews on board such boats are employees of and on the payroll of the Company This recog nition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidiary or affiliated companies The Company will not charter in boats other than its subsidiary or affiliated coin pany boats for the purpose of laying up boats cov ered by this Agreement Other than subsidiary or affiliated Companies fully founded boats of other Companies may not be chartered for more than 90 days The word Company as defined in the contracts means the specific company that is a party to that par ticular contract such as ITC ABL or SOT rather than to all those companies together ACBL as previously noted does not have a contract with the Union and was not party to any of these separate contracts ACBL as described by Respondents executive vice president John Hard has only pilothouse personnel in cluding captains relief captains and pilots and does not employ any deck department personnel or own any tow boats or barges It acquires on a bareboat145 basis barges from its parent company ACL to move freight and then charters towboats on a fully founded boat146 basis from affiliated companies such as ITC primarily or unaffili ated companies to move the freight This has been its practice since at least 1965 Although the companies pro viding these services are directed where to go and what freight to pick up or deliver by ACBL they are not told how to operate their vessels which they control them selves Only ACBL which contracts the amount of freight to be moved contracts for business and arranges for necessary barges and towboats 145 A bareboat charter is where only the vessel itself is acquired 148 Fully founded boats are where the Company contracted to perfrom the services also provides a fully crewed and equipped vessel AMERICAN COMMERCIAL LINES Among those unaffiliated companies with which ACBL has fully founded boat charters were Alliance Marine Service (Alliance) McBride Towing Company (McBride) Hollinger Towing Co (Hollinger) and Marine Centre Inc (Marine) The charters with Alliance were entered into on December 3 for the vessel Alliance Prince and on January 8 1980 for the vessel Alliance for periods of 5 years each to haul chemicals from Texas to Ohio for Monsanto Company These charters were exe cuted after the Coast Guard and Environmental Protec tion Agency had found the chemicals hauled to be haz ardous and ACBL which had previously used boats of affiliated companies to haul these chemicals decided to get out of that business and not expose the crews About mid 1981 these charters terminated when Monsanto Company and ACBL canceled their contract The char ter with McBride was entered into on November 15 1978 for 5 years covering the vessel Glenn R to perform harbor service in the Louisville Kentucky area This vessel is employed on a full time basis by an affiliate Louisiana Dock Company Since the 1960s boats have been chartered from unaffiliated companies to perform this services The only exception was for about 3 months during the latter part of 1980 when ACBL fired two of the chartered companies that performed this work and used two towboats from affiliated companies to perform the work until outside companies could be chartered The charter with Hollinger in effect since 1979 for the vessel Arkansas was extended to about October 20 1980 This vessel performed general tradework from Pitts burgh Pennsylvania to Ohio which was the same type work performed by ITC The charter with Marine en tered into about February 23 covering the vessel Lady Joan for the remainder of 1979 was suspended shortly after being entered into when the vessel sank However it was subsequently raised and returned to service and at various times in 1980 and 1981 performed general harbor work in the New Orleans Louisiana area for ACBL 147 Other vessels chartered from unaffiliated companies in clude the vessel Robert Haynes from American Electric Power in the summer of 1979 for general trades on Ohio rivers including hauling coal the vessel Doris McKinny from Doris McKinny Towing in 1976 or 1977 to shift barges in Mississippi the vessel Anita Domino from Joe Domino Towing during the mid 1970s for general harbor work in New Orleans Louisiana and towage on canals west of New Orleans Louisiana and the vessel Cajun Hustler in 1977 or 1978 for the same type work as the Anita Domino Although the Robert Haynes was used until the end of 1980 and the vessel Doris McKinny Anita Domino and Cajun Hustler are still being used at least intermittently these charters as described by Hard were on a day to day basis Hard acknowledged he never notified the Union about the charters entered into by ACBL Although Hard testified he explained in detail about the chartering of vessels by ACBL during a representa tion case hearing held in November or December 1979 1165 attended by Union General Counsel Schulman Attorney Cutler and Vice President Mollard he did not state spe cifically what he said at that hearing The Union filed a grievance dated November 30 alleg ing ACBL was violating article I section 1 of the con tracts by chartering a number of fully founded boats from other companies for periods of at least 1 year A meeting was held about December 6 at which this grievance along with others was discussed Present for the Union were Port Agent Anderson Patrolman George Fisk Attorney Cutler and Attorney Edward Richardson Vice President Kilroy was present for Re spondents and Supervisor Eve came in after the meeting started According to Kilroy whose testimony was cor roborated by Eve he informed them that none of the companies that had contracts with the Union including ITC ABL and SOT did any chartering and only ACBL which did not have any employees did charter ing He also named companies ACBL had chartered with including Alliance and Valley Line and mentioned boats were also chartered by ACBL in New Orleans Louisiana and Gulf Coast areas Richardson dropped the grievance saying that there was no violation of the con tract t Attorney Richardson who claimed Supervisor Eve was not present at this meeting but at a subsequent meet ing instead testified Kilroy informed them there were no fully founded boats in question When Anderson inquired about the Doyle Kilroy s response was that it was not a fully founded boat but was only partially crewed and was not being used at the time although it had been used in the summer of 1979 Kilroy did inform them that ACBL subcontracted to have other boats perform serv ices for ACBL which he described meant assigning a contract to another company to perform the whole con tract but stated it was not presently engaged in the prac tice of employing fully founded boats On cross examina tion Richardson acknowledged that Kilroy said the com pany liked to keep a certain percentage of its power under charter and informed them ABL SOT NTC and ITC did not enage in chartering Richardson s notes made at this meeting contained the statement ACBL may charter Although Richardson when questioned about this statement said he believed Kilroy was talking about bareboat charters there was no mention in the notes about bareboat charters and he did not testify spe cifically what Kilroy allegedly said about them Richardson acknowledged the grievance was not pur sued by the Union as a result of this meeting I credit Kilroy s version of the meeting which was corroborated by Eve rather than Richardson Not only did Richardson appear to have a limited recollection of the meeting but his own notes indicate that they were informed ACBL did charter boats Moreover Kilroy s testimony is consistent with ACBL s longstanding prac tice of chartering boats 147 ITC as well as Louisiana Dock Company also performed similar work in that area 1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Analysis and Conclusions The pleadings allege that Respondents since about August 8 1980 148 have violated Section 8(a)(1) and (5) of the Act by unlawfully refusing to recognize and bar gain with the Union by unilaterally repudiating the fol lowing contract provision Other than subsidiary or of fihated Companies fully founded boats of other Compa mes may not be chartered for more than 90 days Re spondents deny such allegations and assert as defenses that ACBL has never had a contract with the Union and Section 10(b) of the Act bars issuance of the complaint The above evidence establishes ACBL for many years has engaged in the practice of chartering towboats on a fully founded boat basis from both affiliated and unaffili ated companies including charters for more than 90 days Although Respondents ITC ABL and SOT 149 have separate contracts with the Union prohibiting their chartering fully founded boats from companies other than subsidiary or affiliated companies for more than 90 days ACBL which the Board found is not an employer of the unit employees neither has a contract with the Union nor is it a party to any of these contracts Further the contract recognition clause itself which contains the contract provision in issue specifically provides that it does not apply to crews of tugboats of subsidiary or of filiated companies which in this case would include ACBL Under these circumstances which establish that the contractual provision in issue here is not applicable to ACBL s operations I find that Respondents did not vio late Section 8(a)(5) and (1) of the Act by repudiating the contractual provision about chartering fully founded boats for more than 90 days as alleged Because this contractual provision was not applicable to ACBL s operations I do not find it necessary to con sider the defense asserted under Section 10(b) M Respondent Union s Refusal to Furnish Information The contracts between the parties contained certain trust funds including the Seafarers welfare plan Seafar ers pension plan Harry Lundeberg School of Seaman ship Transportation Institute Seafarers hiring hall trust fund and the Seafarers vacation plan to which the Companies ITC ABL and SOT paid contributions until the expiration of the contracts in December when they ceased making such contributions All these trust plans as found supra were the subject of negotiations for new contracts which the Union wanted to retain with certain increases while the Companies ITC ABL SOT and ACBL acting for and on their behalf wanted to elimi nate or change them and to institute their own plans On February 7 1980 Companies Manager Ivey and Vice President Kilroy met with Respondents Union s port agents Brown and Martin during which time Kilroy requested Brown to furnish a list of present and former employees of ITC ABL SOT and NTC who 148 This date was 6 months prior to the filing of the charge on January 6 1981 in Case 9-CA-16277 149 These Companies do not charter and were not alleged to have vio- lated this contractual provision were vested in the Seafarers pension plan Kilroy ex planted the information was needed by the Companies actuaries for the Companies own proposed plan which offered $10 50 per man per year of service less any vested Seafarers benefits and for determining any un funded liability the Companies might have under the Seafarers pension plan That same day Kilroy presented Brown with a letter dated February 5 1980 requesting such information which also asked for those employees social security numbers 150 Further this letter requested a summary plan description of the Seafarers pension plan covering the Companies employees along with a copy of the trust agreements for purposes of evaluating their present contract proposals on pension benefits On February 14 1980 A J Jensen who was the spe cial assistant to the administrator of the Seafarers pen sion plan sent Kilroy a copy of the Seafarers pension plan trust agreement and a summary plan description booklet Kilroy by letters dated March 18 1980 to both Ms Gentile of the Seafarers pension plan and Port Agent Brown to whom he also enclosed a copy of the letter sent to Ms Gentile renewed for bargaining purposes the request for a list of current and former employees with their social security numbers of ITC ABL NTC and SOT who were vested in the Seafarers pension plan During the negotiation meeting held April 22 1980 Kilroy informed Union Attorney Monblatt about his prior requests for the lists of the Companies employees who were vested in the Seafarers pension plan which had not been furnished whereupon Monblatt told him to write to him personally Kilroy sent a letter to Monblatt on April 24 1980 en closing his earlier requests for the list of vested employ ees and stated they believed that information was essen tial to their making a decision in this matter Monblatt however in a reply letter dated May 9 1980 contended that the request regarding current and former employees who had vested was not clearly un derstood and asked Kilroy exactly what information he was seeking as well as to explain what decision Kilroy was referring to in his letter Kilroy did not respond to Monblatt s letter The Companies were never furnished a list of their employees vested in the Seafarers pension plan by the Respondent Union as requested Kilroy also by letter to Union President Drozak on August 25 1980 requested for purposes of evaluating their proposals and future proposals on contributions to the trust funds copies of trust funds for the Seafarers pension plan Seafarers welfare plan Harry Lundeberg School of Seamanship Transportation Institute and Sea farers hiring hall trust fund or in the alternative for the Union to request the trustees of those funds to provide them with copies 151 This letter explained their own files 150 The Respondent Union used social security numbers for its own records 151 The Companies did not have any of their own representatives on these trust funds AMERICAN COMMERCIAL LINES 1167 had been searched and copies of such documents could not be found Kilroy testified which I credit that copies of these documents could not be found in a search of their files Kilroy sent a telegram to Drozak on September 12 1980 renewing his request for the trust documents Union Vice President Angus Campbell in a reply letter dated September 16 1980 stated their files indicat ed Kilroy s past receipt of such documents' 52 and men tioned Kilroy s references to provisions of those agree ments at recent negotiation sessions clearly indicated Kil roy s possession of the documents and suggested he search his own files rather than impose burdens on others The Companies were never furnished with copies of the trust agreements by the Respondent Union as re quested On August 25 1980 when the request for the trust agreements was made no negotiation meetings were scheduled and Kilroy said the Companies had already put into effect some of their own plans The Companies on October 20 1980 did request a negotiation meeting be held in November 1980 which the Respondent Union denied because of the pending petition and refusal to bar gain charges before the Board According to Kilroy in July 1980 the Companies position was that they would not make contributions to the union trust funds howev er he denied this remained their position throughout the remainder of 1980 On September 23 1980 ACBL President H J Bob zien Jr in a letter addressed and distributed to all fleet employees stated in part that they would continue to maintain their positions taken in negotiations which in cluded company administered benefit plans Analysis and Conclusions The pleadings allege that the Respondent Union vio lated Section 8(b)(3) of the Act by refusing the Compa nies requests to furnish them with a list of current and former employees with their social security numbers of ABL SOT and NTC who had vested rights in the Sea farers pension plan and copies of trust agreements for the Seafarers pension plan Seafarers welfare plan Harry Lundeberg School of Seamanship Transportation Institute and Seafarers hiring hall trust fund which in formation was necessary and relevant to enable the Corn panes to perform their collective bargaining functions during contract negotiations The Union denied the alle gations and asserted as affirmative defenses such informa tion was not necessary or relevant for the Companies to perform their collective bargaining function as at the time the requests were made and continuing the Compa nies have refused to bargain in good faith and therefore were not legitimately entitled to the information request ed The Respondent Union also asserted regarding the list of employees vested in the Seafarers pension plan that the Employee Income Retirement Act of 1974 Public Law 93-406 provides for the distribution of in 152 The contracts reflect the Companies had acknowledged receipt of the trust agreements when the contractual provisions pertaining to them were executed formation regarding pension plans and therefore Con gress declined to provide for the distribution of this in formation sought by the Companies Regarding the trust agreements Respondent Union asserts that the Compa roes were in possession of and had acknowledged receipt of copies of them Section 8(b)(3) of the Act prohibits a union from refus ing to bargain collectively with an employer whose em ployees it represents A union s duty to furnish information relevant to the bargaining process is parallel to that of an employer Graphic Communications Local 13 (Oakland Press) 233 NLRB 994 996 (1977) affd 598 F 2d 267 (D C Cir 1979) Thus an employer is entitled to such information from a union as may be relevant and reasonably neces sary to the proper execution of its bargaining obligation for negotiating and administering a contract See Wes tinghouse Corp supra A union under Section 8(b)(3) also has an affirmative obligation to make a reasonable effort to seek such information or to investigate reasona ble alternative means for obtaining it or to truthfully ex plain or document the reasons for its unavailability Hos pital Employees (Sinai Hospital) 248 NLRB 631 633 (1980) enfd 673 F 2d 1314 (4th Cir 1981) The above findings establish on February 7 1980 the Companies requested the Respondent Union to furnish them with a list of current and former employees of ABL SOT and NTC153 with their social security num bers who were vested in the Seafarers pension plan Notwithstanding this request which was renewed in March and April 1980 such information was never fur nished to the Companies Pension plans were a disputed issue in negotiations with the Union wanting to retain with some increases the existing union pension plan in the contracts to which the Companies had contributed and the Companies were seeking such information for their own proposal made on a pension plan Under these circumtances I found this information was relevant and reasonably necessary to the proper execution of the Companies bargaining obligations in negotiating a con tract The Union never furnished the Companies with the reason for not furnishing this information Although At torney Monblatt contended that the request was not clearly understood and asked Kilroy for an explanation I find these requests on their face were clear and unambig uous The affirmative defenses raised by the Respondent Union for refusing to furnish this information are reject ed Respondent Union through counsel admitted at the hearing that if it as bargaining agent for the Companies employees had requested from the Seafarers pension plan a list of current and former employees of ABL SOT and NTC who had vested rights in the Seafarers pension plan the Union would have received such infor mation in its capacity as bargaining agent subject to pay ment to the Seafarers pension plan for the reasonable costs of producing the information Because the Union in its capacity as bargaining agent was entitled to obtain 59 Although the request also included ITC this was not alleged 1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD such information from the trust fund the Companies as parties to the contracts and contributions to this trust fund would have a similar right to such information Al though the Companies did engage as found in bad faith bargaining this would not constitute a valid defense be cause at the time such requests were made negotiations were still being conducted and the Companies had and still have a legal obligation to bargain about a pension plan with the Respondent Union The findings also establish that the Respondent Union refused to furnish the Companies with copies of the trust agreements pursuant to their requests on August 25 and September 12 1980 Such documents were sought by the Companies for evaluating their proposals and future pro posals on contributions to these trust funds which were included in the contracts and were an issue in negotia tions Under these circumstances I find such documents were relevant and reasonably necessary to the proper execution of the Companies bargaining obligations in ne gotiating a contract The only reason furnished by the Respondent Union to the Companies for not furnishing these documents which I reject was the unsupported claim credibly denied by Kilroy that the Companies still had such documents in their possession That the Compa nies at one time may have received copies of these docu ments which they can no longer locate does not consti tute a valid defense to the present need for such informa tion The additional defense raised that the Companies were not entitled to those documents because of their bad faith bargaining is rejected for reasons previously stated Based on the foregoing evidence and for the reasons indicated I find the Respondent Union by refusing since February 7 1980 to furnish the Companies with a list of present and former employees of ABL SOT and NTC along with their social security numbers who were vested in the Seafarers pension plan and by refusing since about August 26 1980 to furnish the Companies with copies of the trust agreements for the Seafarers pension plan Seafarers welfare plan Harry Lundeberg School of Seamanship Transportation Institute and the Seafarers hiring hall trust fund all of which information was relevant and reasonably necessary for the Compa vies proper execution of their bargaining obligations in negotiating a contract violated Section 8(b)(3) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondents Respondent MAC and Respondent Union set forth in section III above found to constitute unfair labor practices occurring in connection with the operations of the Respondents and Respondent MAC described in section I above have a close intimate and substantial relationship to trade traf fic and commerce among the several States and tend to lead to labor disputes burdening and obstructing com merce and the free flow thereof CONCLUSIONS OF LAW 1 American Commercial Lines Inc American Com mercial Barge Line Company American Barge Line Inc Southern Ohio Towing Company Inc Inland Tugs Co and MAC Towing Inc are each an employer en gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Seafarers International Union of North America Atlantic Gulf Lakes and Inland Waters District AFL- CIO and the Inland Rivermen s Association of the United States are each a labor organization within the meaning of Section 2(5) of the Act 3 The following three separate units each constitute units appropriate for the purposes of collective bargain ing within the meaning of Section 9(b) of the Act All head deckhands deckhands cooks trainee engineers and tankermen employed by ITC River Division on boats owned operated or chartered on a bareboat basis by it excluding professional em ployees guards and supervisors as defined in the Act and all other employees This recognition shall not apply to bareboat charters to other operators nor to crews of towboats of subsidiary or affiliated companies All engineers and assistant engineers employed by ITC River Division on boats owned operated or chartered on a bareboat basis by it excluding pro fessional employees guards and supervisors as de fined in the Act and all other employees This rec ognition shall not apply to bareboat charters to other operators nor to crews of towboats of subside ary or affil ated companies All chief engineers head deckhands deckhands cooks trainee engineers and tankermen employed by ITC Canal Division on boats owned operated or charterd on a bareboat basis by it excluding profes sional employees guards and supervisors as defined in the Act and all other employees This recogni tion shall not apply to bareboat charters to other operators nor to crews of towboats of subsidiary or affiliated companies 4 Seafarers International Union of North America Atlantic Gulf Lakes and Inland Waters District AFL- CIO is now and at all times material has been the exclu sive representative of all the employees in the aforesaid appropriate units for collective bargaining within the meaning of Section 9(a) of the Act 5 By informing union representatives in the presence of employees who they represent that they could not talk to the employees and by preventing them from doing so engaging in surveillance of a union meeting threatening employees with discharge if they did not accept the Companies contract proposals intimidating a union delegate employee by throwing the union contract in the trash stating that was what they thought of the employee and the Union threatening an employee with enforcing break periods because employees had asserted their contractual rights interrogating an employee about a union meeting and by promising an employee that AMERICAN COMMERCIAL LINES without the Union employees would be paid extra the money being paid to the Union s school Respondents have interefered with restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act and have engaged in unfair labor practices in violation of Section 8(a)(1) of the not 6 By soliciting an employee to arm himself with a weapon because of possible trouble with the Union and informing employees an employee was being discharged because he was a union member Respondent MAC has interfered with restrained and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act and has engaged in unfair labor practices in violation of Section 8(a)(1) 7 By discriminatorily discharging Paul Cook Timothy Priode David Robertson Garon Sneed Roy Stinson and Anthony VeLar on October 7 1979 Mark Glies on November 24 1979 and Gary Wilkins on December 7 1979 and by discnminatonly refusing to recall Donald Meritt Jr from about September 21 1979 to about Sep tember 29 1980 and Robert Pruitt from about Septem ber 17 to November 2 1979 because of their union memberships and activities Respondents have engaged in unfair labor practices in violation of Section 8(a)(3) and (1) 8 By discriminatorily discharging Johnny Hallmark on September 11 1979 because of his union membership and Edward Pittman and Richard Hitchcock on Decem ber 3 1979 because they were believed to be union members or supporters Respondent MAC has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) 9 By announcing and maintaining since about October 16 1979 a nonreferral for employment list of employees because they engaged in protected concerted activities under the Act by filing Jones Act claims for injuries re ceived during the course of their employment Respond ents have engaged in unfair labor practices in violation of Section 8(a)(1) 10 By unilaterally repudiating since November 1 1979 the contract provisions allowing union representa tives access to Respondents vessels unilaterally repudi ating since about October 31 1979 the contracts hiring hall provisions unilaterally repudiating the contracts hiring hall provisions by hiring James Gally on Septem ber 22 1980 and Kenneth Adkins who began work on December 29 1980 unilaterally refusing since April 6 1980 to make monthly benefit fund contributions re quired under the contracts to the Seafarers welfare plan which includes the Seafarers pension plan Harry Lun deberg School of Seamanship Seafarers hiring hall trust fund and Seafarers vacation plan unilaterally instituting a new pension plan on August 20 1981 for Inland Tugs Co s unit employees retroactively effective to January 1 1980 and by refusing since about December 27 1979 to bargain in good faith with the Union as the exclusive representative of the employees in the aforesaid appro priate units Respondents have engaged in unfair labor practices in violation of Section 8(a)(5) and (1) 11 By refusing since about September 12 1980 to fur rash the Union with the weekly boat payroll records for the period from about January 1 until about October 3 1169 1980 unreasonably delayed from about October 20 1980 until about January 29 1981 in furnishing the Union with the employment dates of the unit employees refus ing since about December 30 1980 to furnish the Union with the job titles of unit employees with a list of all unit employees terminated since December 31 1979 with their termination dates and the reasons and with copies of all employment cards of unit employees and unreasonably delayed from about December 30 1980 to about January 1982 in furnishing the Union with a list of all employees hired in the units from December 31 1979 with their social security numbers job titles and dates of hire all of which information was relevant and reason ably necessary for the Union s proper execution of its bargaining obligations Respondents have engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act 12 By refusing since February 7 1980 to furnish the Companies with a list of present and former employees of American Barge Line Inc Southern Ohio Towing Company Inc and Northern Towing Company along with their social security numbers who were vested in the Seafarers pension plan and by refusing since about August 26 1980 to furnish the Companies with copies of the trust agreements for the Seafarers pension plan Sea farers welfare plan Harry Lundeberg School of Sea manship Transportation Institute and the Seafarers hiring hall trust fund all of which information was rele vant and reasonably necessary for the Companies proper execution of their bargaining obligation Respondent Union has engaged in unfair labor practices in violation of Section 8(b)(3) 13 The aforesaid unfair labor practices affect com merce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondents violated Section 8(a)(1) (3) and (5) Respondent MAC violated Section 8(a)(1) and (3) and the Respondent Union violated Sec Lion 8(b)(3) I shall recommend that they cease and desist therefrom and take certain affirmative action to effectu ate the policies of the Act Accordingly Respondents shall be ordered to offer immediate and full reinstatement if they have not already done so to Paul Cook Timothy Priode David Robertson Garon Sneed Roy Stinson and Anthony VeLar discriminatorily discharged on Oc tober 7 1979 to Mark Glies discriminatorily discharged on November 24 1979 and to Gary Wilkins discrimina torily discharged on December 7 1979 to their former jobs or if those jobs no longer exist to substantially equivalent jobs without prejudice to their seniority and other rights and privileges and to make them along with Donald Meritt Jr who was discriminatorily refused recall from about September 21 1979 to about Septem ber 29 1980 and Robert Pruitt who was discriminatorily refused recall from about September 17 to November 2 1979 whole for any loss of earnings and other compen sation they may have suffered as a result of the discrimi nation against them in their employment from or during those dates herein found to restore Mentt and Pruitt to 1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD their seniority and other rights and privileges Respond ent MAC shall be ordered to offer immediate and full re instatement if it has not already done so to Johnny Hallmark discriminatonly discharged on September 11 1979 and to Edward Pittman and Richard Hitchcock discriminatonly discharged on December 3 1979 to their former jobs or if those jobs no longer exists to sub stantially equivalent jobs without prejudice to their se nionty and other rights and pn aileges and to make them whole for any loss of earnings and compensation they may have suffered as a result of the discrimination against them in their employment herein found Backpay shall be computed in the manner prescribed by the Board in F W Woolworth Co 90 NLRB 289 (1950) with in terest as prescribed in Florida Steel Corp 231 NLRB 651 (1977) 154 Respondents and Respondent MAC shall also remove from their records any references to their dis criminatory discharges or refusals to recall these employ ees and provide each of them with written notice on such removals and inform them that Respondents and Respondent MAC s unlawful conduct will not be used as a basis for future personnel action concerning them 155 Respondents shall rescind and cease maintaining a non referral for employment list of employees because they filed Jones Act claims Having found Respondents un lawfully unilaterally repudiated contract provisions al lowing union representatives access to Respondents ves sels and the union hiring hall provisions including hiring employees James Gally and Kenneth Adkins they shall be ordered to bargain with the Union before making uni lateral changes affecting unit employees and to give effect to those provisions in the contracts and to offer full and immediate employment to those two employees who would have been hired through the union hiring hall absent hiring Gally and Adkins and to make them whole for any loss of earnings and other compensation they may have suffered by reason of not hiring them on September 22 and December 29 1980 with interest and backpay computed in the manner prescribed above Respondents shall be ordered to rescind the new pen sion plan they have unlawfully instituted for Inland Tugs ls+ See generally Isis Plumbing Co 138 NLRB 716 (1962) 155 See Ster mg Sugars 261 NLRB 472 (1982) Co s employees and to give effect to the Seafarers pen sion plan in the contracts Having found Respondents since April 6 1980 unilaterally refused to make contri buttons to the Seafarers welfare plan Seafarers pension plan Harry Lundeberg School of Seamanship Seafarers hiring hall trust fund and the Seafarers vacation plan as provided in the expired contracts they shall be ordered to restore making such payments and make whole the unit employees for any losses or expenses they may have suffered since that date as a result of these unilateral changes and to pay into the appropriate trust funds all the contributions they have failed to pay since April 6 1980 158 Respondents having refused to bargain in good faith shall be ordered to bargain collectively with the Union in good faith concerning rates of pay wages hours of employment and other terms and conditions of employ ment of the unit employees and embody in a signed agreement any understanding reached Both Respondents and Respondent Union shall be or dered to furnish that information here found that they unlawfully refused to furnish Based on the nature and extent of the violations found I find Respondents have exhibited a general disregard for employees statutory rights warranting a broad remedial order Hickmott Foods 242 NLRB 1357 (1979) Howev er absent as here a prior history of unfair labor prac tices I do not find the extraordinary remedies urged by the Union but not by the General Counsel are either warranted or appropriate [Recommended Order omitted from publication ] ise Because the provisions of employee benefit fund agreements are variable and complex the Board does not provide at the adjudicatory stage of a proceeding for interest at a fixed rate on fund payments due as part of a make whole remedy and therefore leave to the compliance stage how much interest Respondents must pay into the benefit funds to satisfy the make whole remedy These additional amounts may be deter mined on the circumstances of each case by reference to provisions of the documents governing the funds at issue and when there are no gov erning provisions to evidence of any loss directly attributable to the un lawful action which might include the loss of return on investment of the portion of funds withheld additional administrative costs etc but not collateral losses See Merryweather Optical Co 240 NLRB 1213 1216 fn 7 (1979)