American Commercial Lines, Inc.

622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD American Commercial Lines, Inc., and Its Subsidiar- ies: American Commercial Barge Line Compa- ny; American Barge Line Company; Southern Ohio Towing Company, Inc.,; Northern Towing, Inc.; Inland Tugs Company-River Division and Canal Division; Mac Towing, Inc. and Seafar- ers' International Union of North American, At- lantic, Gulf, Lakes and Inland Waters District, AFL-CIO American Commercial Terminals, Inc. and United Industrial Workers of America of the Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL- CIO Louisiana Dock Company, Inc., and American Com- mercial Terminals, Inc. and United Industrial Workers of North America of the Seafarers' International Union, 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 Barge Line Company, Inland Tugs Company, Southern Ohio Towing Company, Inc., affiliated Compa- nies of American Commercial Barge Line Com- pany. Cases 9-CA-16993, 9-CA-17418, 9-CA- 16703, 9-CA-17053, 9-CA-17553-1-2-3, and 9-CB-4736 September 19, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On March 23, 1984, Administrative Law Judge Robert M. Schwarzbart issued the attached deci- sion. The Respondent Employers' filed exceptions and a supporting brief and the Charging Party Unions2 filed an answering brief. The Unions also filed exceptions and a supporting brief and the Re- spondent Employers3 filed answering briefs. 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 record4 in light of the exceptions and briefs and I American Commercial Barge Line Company (ACBL), Inland Tugs Company-River Division and Canal Division (ITC), American Commer- cial Terminals, Inc (ACT), and Louisiana Dock Company, Inc (LDC) 2 Seafarers' International Union of North America , Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO (SIU) and United Industrial Workers of North America of the SIU (UIW). a ACBL, ITC, MAC Towing, Inc (MAC), LDC, ACT, and American Commercial Lines, Inc (ACL). 4 See also the discussion of Respondent Employers' motion to reopen the record, infra, in the two paragraphs of text immediately preceding, and including, fn 12 has decided to affirm the judge's rulings, findings,5 and conclusions only to the extent consistent with this Decision and Order. These consolidated cases involve two separate collective-bargaining relationships. The first is be- tween the Seafarers' International Union (SIU) and certain wholly owned subsidiaries of American Commercial Lines, Inc.6 The judge found in Cases 9-CA-16993 and 9-CA-17418 that the Respondent Employers American Commercial Barge Line Company and Inland Tugs Company-River Divi- sion and Canal Division-violated Section 8(a)(1), (3), and (5) by avoiding the use of the exclusive contractual referral system by directly hiring cer- tain bargaining unit employees , but dismissed the complaint allegations as to the direct hiring of cer- tain other unit employees. The judge further found in Case 9-CB-4736 that the Respondent SIU vio- lated Section 8(b)(3) by failing to provide ACBL and ITC with certain requested information. The other bargaining relationship at issue here is between the United Industrial Workers (UIW) and the Employers, American Commercial Terminals, Inc. (ACT) and Louisiana Dock Company, Inc. (LDC). The judge found in Case 9-CA-16703 that ACT violated Section 8(a)(5) and (1) by unilateral- ly failing to honor the unrevoked dues deduction authorizations of two bargaining unit employees and by failing to disburse such dues to the Union in accordance with the terms of their collective-bar- gaining agreement . The judge further found in Case 9-CA-17053 that ACT and LDC violated Section 8(a)(5) and (1) by refusing to accede to the UIW's requests to enforce the union-security clause in the collective-bargaining agreement by discharg- ing certain employees. The judge also dismissed al- legations in Case 9-CA-17553-1-2-3 that ACT and LDC violated Section 8(a)(5) and (1) by failing to notify the UIW of job openings and failing to use the UIW's hiring hall.? s We correct the following inadvertent errors made by the judge, none of which affects our decision . In sec III,C,2 it was Jackson rather than Scott who was hired on August 17, 1981, along with Benecke and Sumler In the last sentence of sec III,C,3 the word "cited" should read "denied" In sec . III,F,1 House was hired on August 26, 1980, not 1981 In the first sentence of the "Discussion and Conclusions " portion of sec III,H the word "services" should read "survives." 6 We adopt the judge's findings as to the appropriate bargaining units represented by the SIU. For the reasons set forth in American Commer- cial Lines, 291 NLRB 1066 (1988), based on the Board's findings in MAC Towing, 262 NLRB 1331 ( 1982), the last contracts between the parties, and the mergers creating ITC-River Division, we find the SIU represents the employees covered by the following three units- ITC-River Division (licensed employees); ITC-River Division (unlicensed employees); and ITC-Canal Division (licensed and unlicensed employees) The judge also dismissed an 8(a)(5) allegation that ACT and LDC unilaterally introduced a new health and welfare plan. No exceptions were taken to this finding. 296 NLRB No. 87 AMERICAN COMMERCIAL LINES With respect to the 8(a)(1), (3), and (5) allega- tions concerning the ACBL's and ITC's avoidance of the SIU exclusive hiring hall, we find merit in certain of the Respondent Employers ' exceptions. Accordingly, we shall dismiss the complaint re- garding the hire of 8 individuals designated as "old" employees, adopt the judge's findings with respect to 13 "new" employees, and reverse his findings of violations about "new" employees Kingsmill and Olsson. We further find no merit to the SIU's exceptions to the judge's findings of an 8(b)(3) violation. We also adopt the judge's find- ings concerning the appropriate bargaining units represented by the SIU. We shall adopt the judge' s 8(a)(5) and (1) find- ings about ACT's failure to honor the dues-check- off authorizations of two employees and otherwise to enforce the union-security clause in the collec- tive-bargaining agreement with a unit represented by the UIW.8 Finally, we shall adopt the judge's recommended dismissal of allegations that ACT and LDC violated Section 8(a)(5) and (1) by failing to inform the UIW of job openings at their respec- tive facilities in Louisville, Kentucky, and Cairo, Il- linois.9 With respect to LDC, we further find that 8 For the following reasons we agree with the judge that it is not ap- propriate to defer the resolution of these two issues to the parties ' arbitral process. In Collyer Insulated Wire, 192 NLRB 837, 842 ( 1971), the Board found that the case was "eminently well suited to resolution by arbitra- tion" because "[t]he contract and its meaning" were "at the center of [the] dispute " That is not the situation here, where the meaning of the contract does not constitute any part of the instant dispute In this regard, we note that the dues-checkoff and union-security clauses are clear and unambiguous, and the Respondent does not claim that its refusals to adhere to them were privileged by any provisions of the contract Rather, the defenses the Respondent raises to the unfair labor practice al- legations primarily involve the Act and its policies, e g., the interpreta- tion of an informal settlement agreement approved by the Regional Di- rector, which restored to employees Doss and Knight their original se- niority, and the effect of the proviso to Sec. 10(b) of the Act. "The ques- tions presented are therefore not ones of contract interpretation . They are legal questions concerning the National Labor Relations Act which are within the special competence of the Board rather than of an arbitrator " Columbus Printing Pressmen Local 252 (R. W. Page), 219 NLRB 268, 270 (1975), enfd . 543 F 2d 1161 (5th Cir. 1976) In agreeing with the judge 's finding that the Union's claim for the dues of Doss and Knight is not time-barred by Sec. 10(b), we rely solely on his rationale that in the absence of any express repudiation by Respond- ent ACT of its obligation to deduct and forward their dues under the ap- plicable checkoff provisions , the Union is entitled to a reasonable period to determine whether the nonpayment was a willful act or mere delin- quency, and that thus its filing of unfair labor practice charges on April 16, 1981, was timely. We accordingly find it unnecessary to pass on his discussion of a "continuing violation " rationale and of the effect of the pendency of related unfair labor practice charges underlying a settlement agreement. B In adopting the judge's dismissal of the 8 (a)(1), (3), and (5) allegations that the Respondents failed to notify the Union of job openings and to utilize the exclusive hiring hall , we rely only on the finding that there is no evidence that the Union maintained an operating hiring hall We find it unnecessary to address the judge 's discussion of (1) the criteria that a union must maintain in its referral procedures , and (2) the appropriate unit that includes LDC's employees at its facility in Cairo, Illinois. As stated by the judge in Section 1I1,B,2 of his decision , the parties in Cases 9-CA-16073, 9-CA-17053, and 9-CA-17553-1-2-3 stipulated that the judge should select as appropriate for collective bargaining one of the two units alternatively pled in the complaints The choice was between a 623 there is no evidence it engaged in any unfair labor practices, because there is no evidence to support the judge's conclusion that it refused to honor con- tractual commitments to discharge employees who failed to comply with relevant union-security pro- visions (all such requests were made to ACT solely with respect to ACT employees). Accordingly, we shall dismiss all complaint allegations regarding LDC. Avoidance of SIU's Exclusive Hiring Hall The complaint alleges that since March 1981 the Respondents ACB and ITC have violated Section 8(a)(5) and (1) by repudiating contractual hiring hall provisions stating that the SIU shall be the ex- clusive referral source of employees and that be- tween March 17 and August 17, 1981, the Re- spondents also violated Section 8(a)(3) and (1) by directly hiring 23-named employees rather than ob- taining a like number of employees from the exclu- sive hiring hall. As stated by Judge Schwarzbart, these allegations represent a continuation of the hiring hall issues raised in American Commercial Lines, 291 NLRB 1066 (1988) (American Commer- cial Lines 1). In summarizing the factual and legal background of this proceeding, we draw both on Judge Schwarzbart's decision and our own analysis and findings in American Commercial Lines I. The collective-bargaining agreements that ex- pired December 30, 1979,10 each provided in rele- vant part that the Respondents were "to secure all of its personnel through the hiring hall of the Union" unless the Union was unable to furnish per- sonnel in ample time to prevent delays in vessel movement. In that event, the Respondents were permitted to "obtain employees from any available source." On August 31, 1979, as a result of a Board deci- sion declaring portions of the hiring hall provisions unlawful,"' the Respondents ceased using the SIU single comprehensive multilocation unit of LDC and ACT employees employed at facilities in Harahan and Westwego , Louisiana, Hennepin and Cairo, Illinois; and Louisville , Kentucky; and a single location unit limited to the employees employed by ACT at Louisville. The judge se- lected the former unit, finding that it conformed to the unit set forth in the parties' 1979-1981 collective-bargaining agreement . However, as the General Counsel has recognized , the scope of the unit has no bearing on the merits of the unfair labor practice allegations in this case We note, nevertheless, that subsequent to Judge Schwarzbart 's decision, the Board decided in Louisiana Dock Co, 293 NLRB 233 (1989), that the Respond- ents had recognized a single unit consisting of the Lousiville employees 10 The judge found that although the collective-bargaining agreements expired prior to the occurrence of the direct hires in 1981 , the hiring hall provisions in the contract are mandatory subjects of bargaining and as such survive the originating agreement . See fns 46 and 47 of the judge's decision In agreeing with the judge's conclusion regarding the survival of the contractual hiring hall provisions, we rely on the conformance of the judge's analysis with Board precedent discussed in detail in American Commercial Lines I. 11 Seafarers' Atlantic District (American Barge Lines), 244 NLRB 641 (1979) 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hiring halls. The Seafarers Appeal Board (SAB), a joint labor management entity, thereafter amended the shipping rules governing the operation of the hiring hall to comply with the Board's decision. Following the Respondents' refusal to accept the amendments or resume using the hiring halls, the Union filed a grievance that was processed to arbi- tration. In an award dated December 2, 1980, the arbitration board found that the SAB had exclusive authority to amend the rules, that the amendments were effective October 26, 1979, and that the Re- spondents violated the collective-bargaining agree- ment after that date by refusing during the contrac- tual period to use the hiring halls. The award did not order a remedy because the parties requested that that matter be left to their joint resolution. The arbitration board, with the consent of the par- ties, retained jurisdiction to fashion a remedy if the parties were unable to reach an agreement. After the close of the hearing in the instant case, the Respondent Companies, in support of their re- quest that the Board defer to the arbitration pro- ceeding, filed a motion with the judge seeking to reopen the record to receive into evidence a "remedy award" dated June 29, 1983, and served on the parties on July 6, 1983. The General Coun- sel and the SIU filed briefs in opposition to the Re- spondents' motion and brief in support. The award in question resulted from remedy hearings held in October and December 1982 and February 1983 following the parties' inability to draft a mutually satisfactory remedy as provided in the underlying arbitration award. The judge denied the Respondents' motion to reopen the record. However, for the reasons more fully set forth in American Commercial Lines I, we now grant the Respondents' motion. Accordingly, the arbitration board's remedy award of June 29, 1983, and related records attached to Respondents' motion are received into evidence.12 The arbitration award hearings were conducted to determine the appropriate remedy for the Re- spondents' failure to use the Union's hiring halls when obtaining new hires of unlicensed person- nel" between October 26 and December 30, 1979. 12 On November 27, 1985, the Respondents filed a motion asking the Board to receive or take administrative notice of a court order, judgment, and memorandum entry issued September 23, 1985 , and a second order, judgment , and memorandum entry issued November 20, 1985, by the United States District Court for the Southern District of Indiana confirm- ing the arbitration award referred to above and ruling on motions relat- ing to arbitrator and attorney fees The Seafarers filed a response in op- position 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 Respondents' motion is granted. 13 The arbitration board expressly declared that its award did not cover the referral practices of licensed personnel These hires constituted the basis for some of the 8(a)(1), (3), and (5) allegations in American Com- mercial Lines I. As we noted in American Commer- cial Lines I, the arbitration board specifically found that the parties historically had recognized excep- tions under which the Respondents were free to hire unlicensed employees without first contacting the union hiring halls, i.e., when the hiring halls were closed, including on Saturday afternoons, Sundays, and holidays; and in various emergency situations, including when a vessel would be sailing short-handed because of an employee's inadequate notice or when a failure by the hiring halls to fill a vacancy could delay the departure of a vessel. The arbitration board further concluded that the Re- spondents were permitted, in accordance with well established past practice, to rehire "old" employees (those with broken seniority) without using the hiring halls. Thus, according to the arbitration board, such hirings constituted exceptions to the "exclusive" nature of the parties' hiring hall ar- rangements. As discussed in detail by Judge Schwarzbart, the parties stipulated that resolution of the issues pre- sented in Cases 9-CA-17418 and 9-CA-16993 re- lating to the Respondents' crew dispatch procedure and the Union's hiring hall require consideration of issues already fully litigated in American Commer- cial Lines I before Judge Johnston. In order to avoid the risk of inconsistent rulings, the parties stipulated that Judge Schwarzbart should follow the decision of Judge Johnston regarding these pre- viously litigated issues. All parties clearly retained their rights to except to Judge Johnston's findings and they have done so. Here, the Respondents' brief supporting their exceptions, filed prior to the Board's decision in American Commercial Lines I, correctly notes that findings and conclusions relat- ing to the direct hire of "old" employees are di- rectly dependent on the disposition of the identical issues in American Commercial Lines I. In that case we found, and we here reaffirm, that the arbitra- tion board in its proceedings interpreted the con- tractual hiring hall provisions in relation to the par- ties' practices and has thus rendered an authorita- tive reading of the parties' hiring hall arrangements for unlicensed employees. We further found, and here reaffirm, that this interpretation will be ap- plied in determining the merits of the relevant unfair labor practice allegations involving the hiring hall. Accordingly, we find that the Respond- ents may lawfully hire "old" or former unlicensed employees without contacting the hiring halls. We thus dismiss the complaint concerning the rehire of former employees James F. Hyden, Ronald H. Coulter, Eddie L. Brandenburg, Samuel Carl AMERICAN COMMERCIAL LINES Isaacs, Robert E. Orwick, Robert E. Whipple, Howard D. Hardie, and Mike Benecke.14 As noted above, we have also adopted the arbi- trators' finding that the Respondents are permitted to hire new employees directly when the hiring halls are closed, including Saturday afternoons, Sundays, and holidays, and in emergencies such as when a vessel would be sailing short -handed be- cause of an employee's inadequate notice or when the Union's failure to fill a job vacancy might delay sailing. We therefore shall now evaluate the judge's application of this contractual standard re- garding the hiring of 15-named individuals not ob- tained from the Union 's hiring halls and hired for the first time as new employees between March 27 and August 17, 1981. The judge dismissed the complaint allegations about the direct hires of Edward Miller, Lamont Moore, and Danny Scott on August 15, 1981, and Jay Jackson on August 17, 1981. In each of these instances the judge found that the Respondents did attempt to contact the hiring hall to obtain crew members, but found on both days that the hall was closed during the contractually established operat- ing hours. Accordingly, we agree with the judge that the Respondents did not violate Section 8(a)(1), (3), and (5) by then directly hiring Miller, Moore, Scott, and Jackson in order to meet exist- ing crew needs and sailing schedules. We also agree with the judge 's dismissal of the allegation regarding the direct hire of Jerry Latham on June 7, 1981. A need for a crew member for a particular vessel arose at 4:30 a.m. on a Sunday, a time when the hiring hall was not scheduled to reopen for more than 24 hours. The Respondents' claim that the need was urgent and thus they could not wait until Monday morning was corroborated by the fact that Latham was hired on Sunday and boarded his vessel that same day. The judge found further that the Respondents' direct hire of Nauyen Tai Tu on July 5, 1981, did constitute an unlawful repudiation of the contrac- tual hiring hall provisions. Like Latham, Tu was hired on a Sunday when the hall was closed. Unlike Latham's situation, however, the judge found no corroboration of the Respondents' claim of urgency. Tu did not board his ship until the fol- lowing day and although the hall was in fact closed on that Monday, the crew dispatcher who hired Tu did not know this and did not even in- quire concerning the normal hours of the hiring hall. We agree with the judge's finding, which was 14 See fn. 74 of the judge's decision about Benecke In reaching this conclusion, we presume, as we did in American Commercial Lines 1, that the employee classifications filled were those of unlicensed personnel 625 based on the Respondents' failure to justify their need to bypass the referral system. We also agree with the judge's findings of viola- tions with respect to the direct hires on May 7, 1981, of Bobby Hicks, J.N. Nimon, Thomas Ent- whistle, Johnny Goldman, and Jim Wilson. The crew dispatcher learned of the need for crew mem- bers 1 hour after the hiring hall closed for the day and hired the five new employees that night. These individuals reported to four different vessels at Harahan, Louisiana, the following day. The judge found that the Respondents failed to offer specific nonconclusionary evidence to establish why the five employees were so urgently needed and why that requirement became known just after the hiring hall closed. We agree with the judge's find- ing that requiring the Respondents to make such showings is warranted in light of the Respondents' disregard of the hiring hall on numerous occasions that did not even colorably come within authorized exceptions 15 and the fact that no clear savings in time or money resulted from the decision not to wait until the hall reopened . At the Respondents' expense, Hicks reported from Florida and Wilson from Arkansas. Essentially, as found by the judge, if the Respondents are not obligated to provide reasonable, specific, nonconclusionary explanations for afterhour hires, when requested to do so by the Union, then the hiring hall provisions could be ren- dered meaningless by circumvention. We disagree, however, with the judge's findings of violations concerning the direct hires of new employees Harold Kingsmill and Marty Olsson. Here the record shows that the Respondents have provided specific and reasonable explanations for why it was necessary to hire the two employees after the hiring hall had closed for the day and without waiting until the hall reopened the next morning. Kingsmill was hired after 8 p.m. on March 27, 1981, to replace a deckhand who failed to report to his vessel at 6 p.m. as scheduled. Al- though it is true that there is no evidence concern- ing when the vessel was scheduled to sail , it is ob- vious that the requirement for a deckhand at 6 p.m. meant that he was needed to prepare the vessel for departure . Similarly, Olsson was hired after 11 p.m. on July 27, 1981, by a captain of a vessel after two deckhands whom the crew dispatcher was transfer- ring to that vessel had failed to report. According- ly, we shall dismiss the complaint allegations re- 15 The parties stipulated that the Respondents obtained only 10-12 re- ferrals from union hiring halls in 1981, that from January through August 1979 the Respondents hired between 225-240 new employees without using the hall, and that in 1978 the Respondents directly hired approxi- mately 500 such new employees 626 DECISIONS OF THE NATIONAL LABOR RL•.ATIONS BOARD garding the direct hiring of Kingsmill and Olsson.16 AMENDED REMEDY With respect to Cases 9-CA-16993 and 9-CA- 17418, having found that ACBL and ITC unlawful- ly hired seven employees in derogation of its con- tractual obligation to use the SIU's exclusive hiring hall-namely, Nauyen Tai Tu, Gerald Lee Babb, Bobby Hicks, J. N. Nimon, Thomas Entwhistle, Johnny Ray Goldman, and Jim Wilson on the dates set forth in the judge's decision, we shall order the Respondents jointly and severally to make whole those work applicants who would have been referred to them for employment through the SIU's hiring halls were it not for the Respondents' unlawful conduct. Backpay is to be computed as set forth in the judge's recommended remedy with interest to be computed in the manner prescribed in New Horizons for the Retarded, 17 Fur- ther, because of their failure to abide by the con- tractual hiring hall provisions, we shall require the Respondents to make whole the appropriate fringe benefit trust funds for losses suffered by reimburs- ing such funds to the extent that contributions would have been made on behalf of those who would have been referred to work were it not for the Respondents' unlawful failure to use the SIU's hiring halls on the dates when the above-named employees were directly hired. See footnote 161 of the judge's decision. ORDER A. The National Labor Relations Board orders that the Respondents, Inland Tugs Company-River Division and Canal Division and American Com- mercial Barge Lines Company, acting for itself and on ITC's behalf, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain in good faith with Seafar- ers' International Union of North America, Atlan- tic, Gulf, Lakes and Inland Waters District, AFL- CIO, as the exclusive representative of their em- ployees in the following three separate appropriate units: iS The judge found a violation regarding the hire of Gerald Lee Babb Jr The Respondent did not except to this finding Also the judge dis- missed the complaint concerning the hire of Paul Foster No exceptions were filed to this finding 14 283 NLRB 1173 (1987) Interest on and after January 1 , 1987, shall be computed at the "short-term Federal rate" for the under payment of taxes as set out in the 1986 amendments 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) All head deckhands, deckhands, cooks, trainee engineers and tankermen employed by Inland Tugs Company-River Division on boats owned, operated and 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 engineers and assistant engineers em- ployed by Inland Tugs Company-River Divi- sion 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 rec- ognition shall not apply to bareboat charters to other operators, nor to crews of tow boats of subsidiary or affiliated companies. All chief engineers, head deckhands, deck- hands, cooks, trainee engineers and tankermen employed by Inland Tugs Company-Canal Di- vision on boats owned, operated or chartered on a bareboat basis by it, excluding profession- al employees, guards and supervisors, as de- fined in the Act, and all other employees. This recognition shall not apply to bareboat char- ters to other operators, nor to crews of tow- boats of subsidiary or affiliated companies. (b) Unilaterally repudiating, altering, or refusing to abide by provisions of the collective-bargaining agreement with the above-named Union by avoid- ing the use of the Union's exclusive hiring hall when hiring bargaining unit employees. (c) Discriminating against work applicants regis- tered for job referral at the above-named Union's exclusive hiring halls by avoiding use of such hiring halls when hiring bargaining unit employees. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed under the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Recognize and, on request, bargain collec- tively with the above-named Union as the exclusive collective-bargaining representative of the employ- ees in the above-described bargaining units, and embody in a signed agreement any understanding that may be reached. (b) Comply with the terms and conditions of any collective-bargaining agreements to which they are bound by not avoiding use of the Union's exclusive hiring halls when hiring bargaining unit employees. (c) Make whole, with interest, any work appli- cants who were registered at the Union's hiring AMERICAN COMMERCIAL LINES hall and who would have been referred for em- ployment for any loss of wages and other benefits that resulted from the Respondent Employers' un- lawful failure to apply the hiring hall provision of their contracts with the Union when hiring seven employees during the period between May 7 and July 16, 1981, including the making of necessary contributions on behalf of such unreferred discri- minatees to the appropriate fringe benefit funds as provided for in the applicable collective -bargaining agreements, as more fully described in the amended remedy section of this decision. (d) Preserve and, on request , make available to agents of the Board for examination and copying the payroll records, social security records, time- cards, personnel records, and all of the other records necessary to analyze the amounts of money due under the terms of this Order. (e) Post at all their facilities where unit employ- ees are normally employed, including vessels, copies of the attached notice marked "Appendix A."18 Copies of the notice on forms provided by the Regional Director for Region 9 after being signed by the Respondent Employers ' authorized representatives shall be posted by these Respond- ents immediately upon receipt and be maintained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent Employers to ensure that the notices are not altered, defaced, or covered by any other material. (f) Post, at the Respondents' option, at the same places as set forth in the subparagraph immediately above, when forwarded by the Regional Director, copies of the Respondent Seafarers' International Union notice, marked "Appendix B." (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent Employers have taken to comply. B. The National Labor Relations Board orders that the Respondent, Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing to bargain collectively with Inland Tugs Company-River Division and Canal Division, and American Commercial Barge Line Company, acting for itself and on ITC's behalf, by refusing to 'B 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 " 627 furnish them with relevant and necessary informa- tion for the proper execution of their bargaining obligations concerning the employees in the fol- lowing three separate appropriate units: All head deckhands, deckhands, cooks, trainee engineers and tankermen employed by Inland Tugs Company-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 engineers and assistant engineers em- ployed by Inland Tugs Company-River Divi- sion 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 rec- ognition shall not apply to bareboat charters to other operators, nor to crews of towboats of subsidiary or affiliated companies. All chief engineers, head deckhands, deck- hands, cooks, trainee engineers and tankermen employed by Inland Tugs Company-Canal Di- vision on boats owned , operated or chartered on a bareboat basis by it, excluding profession- al employees, guards and supervisors, as de- fined in the Act, and all other employees. This recognition shall not apply to bareboat char- ters to other operators , nor to crews of tow- boats of subsidiary or affiliated companies. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Furnish the above-named Companies, for pur- poses of inspection, hiring hall records at hiring halls normally used by the Companies, including all daily activity reports, registration cards, job orders, clinic cards, job calls, and SIU headquarters' com- puter printouts listing registrants at all hiring hall locations normally used by the above-named Com- panies. (b) Post at its business offices, hiring halls, and at all facilities where notices to its members and to bargaining unit employees are customarily posted, copies of the attached notice marked "Appendix B."19 Copies of the notice on forms provided by the Regional Director for Region 9, after being signed by the Respondent Union's authorized rep- " See fn . 18, supra 628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD resentative, shall be posted by the Respondent Union immediately upon receipt and be maintained for 60 consecutive days in conspicuous places in- cluding all places where notices to its members and unit employees are customarily posted . Reasonable steps shall be taken by the Respondent Union to ensure that the notices are not altered , defaced, or covered by any other material. (c) Furnish to the Regional Director for Region 9, signed copies of the notices for posting by American Commercial Barge Line Company and Inland Tugs Company-River Division and Canal Division in places at their various facilities and ves- sels where notices to employees are customarily posted. Copies of the notice, to be furnished by the Regional Director , shall, after being signed by the Respondent Union's authorized representative, as indicated, be returned to the Regional Director for disposition by him. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent Union has taken to comply. C. The National Labor Relations Boards orders that the Respondent, American Commercial Termi- nals, Inc., its officers, agents, successors , and as- signs, shall 1. Cease and desist from (a) Refusing to bargain in good faith with United Industrial Workers of North America of the Sea- farers' International Union, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO as the ex- clusive representative of their employees in the unit appropriate for purposes of collective bargaining that included: All employees employed by American Com- mercial Terminals, Inc., at its coal transfer and manhole cover product facilities located in Louisville, Kentucky, excluding all office cleri- cal employees, professional employees, guards, and supervisors, as defined in the Act. (b) Unilaterally failing to honor the dues-deduc- tion authorizations of unit employees and failing to pay over such dues to the above-named Union in accordance with the terms and duration of any ap- plicable collective-bargaining agreement with the Union. (c) Refusing and failing to comply with the union-security requirements during the term of any collective-bargaining agreement that provides for union security. (d) 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) Recognize and, on request, bargain collec- tively with the above-named Union as the exclusive collective-bargaining representative of the Re- spondent's employees in the bargaining unit, which includes the previously described Louisville em- ployees, and embody in a signed agreement any un- derstanding that may be reached. (b) Honor employee dues-deduction authoriza- tions submitted by the Union during the term of any collective-bargaining agreement that provides for the checkoff and payment to the Union of union dues and initiation fees. (c) Reimburse the above-named Union for losses due to the Respondent's failure to honor the Union's dues-deduction authorizations, with respect to its employees John Doss and Joe Knight, as more fully set forth in the amended remedy section of this Decision. (d) Comply with union-security requirements during the term of any collective-bargaining agree- ment that provides for union security. (e) Preserve and, on request, make available to agents of the Board for examination and copying, the payroll records, social security records, time- cards, personnel records, and all of the other records necessary to analyze the amounts of money due under the terms of this order. (f) Post at their facilities where unit employees are normally employed , including Louisville, Ken- tucky, copies of the attached notice marked "Ap- pendix C."20 Copies of the notice on forms provid- ed by the Regional Director for Region 9, after being signed by the Respondent's authorized repre- sentatives, shall be posted by the Respondent im- mediately upon receipt for 60 days in places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that notices are not altered, defaced , or cov- ered by any other material. (g) 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 ORDERED that all complaint allegations against the above-named Respondents be dismissed insofar as they allege unfair labor practices not spe- cifically found. IT IS FURTHER ORDERED that all allegations that Louisiana Dock Company, Inc., American Com- mercial Lines, Inc., American Barge Line Compa- ny, Northern Towing, Inc., and Southern Ohio Towing Company, Inc. violated the Act be dis- missed. 20 See fn 18, supra AMERICAN COMMERCIAL LINES 629 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. WE WILL NOT refuse to bargain in good faith with Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO as the exclusive representative of our employees in the following three separate units appropriate for purposes of collective bar- gaining: All head deckhands, deckhands, cooks, trainee engineers and tankermen employed by Inland Tugs Company-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 engineers and assistant engineers em- ployed by Inland Tugs Company-River Divi- sion 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 rec- ognition shall not apply to bareboat charters to other operators, nor to crews of towboats of subsidiary or affiliated companies. All chief engineers, head deckhands, deck- hands, cooks, trainee engineers and tankermen employed by Inland Tugs Company-Canal Di- vision on boats owned, operated or chartered on a bareboat basis by it, excluding profession- al employees, guards and supervisors, as de- fined in the Act, and all other employees. This recognition shall not apply to bareboat char- ters to other operators, nor to crews of tow- boats of subsidiary or affiliated companies. WE WILL NOT unilaterally repudiate, unilaterally alter, or refuse to abide by provisions of our collec- tive-bargaining agreement with the above-named Union by avoiding the use of the Union's exclusive hiring hall when hiring bargaining unit employees. WE WILL NOT discriminate against work appli- cants registered for job referral at the above-named Union's exclusive hiring halls by avoiding use of such hiring halls when hiring bargaining unit em- ployees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the National Labor Relations Act. WE WILL recognize and, on request , bargain col- lectively with the above-named Union as the exclu- sive collective-bargaining representative of our em- ployees in the bargaining units described above and WE WILL embody in a signed agreement any un- derstanding that may be reached. WE WILL comply with the terms and conditions of any collective-bargaining agreement to which we are bound by not avoiding the use of the Union's exclusive hiring hall when hiring bargain- ing unit employees. WE WILL make whole, with interest, work appli- cants who were registered for job referral at the above-named Union's exclusive hiring halls for any losses they may have suffered as a result of our failure to apply the hiring hall provisions of the collective-bargaining agreement , and WE WILL make the necessary payments on their behalf to the appropriate fringe benefit trust funds. AMERICAN COMMERCIAL BARGE LINE COMPANY APPENDIX B NOTICE To MEMBERS 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. WE WILL NOT refuse to bargain collectively with Inland Tugs Company-River Division and Canal Division and American Commercial Barge Line Company by refusing to furnish them relevant and necessary information for the proper execution of their bargaining obligations concerning the employ- ees in the following separate units appropriate for purposes of collective bargaining: All head deckhands, deckhands, cooks, trainee engineers and tankermen employed by Inland Tugs Company-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. 630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All engineers and assistant engineers em- ployed by Inland Tugs Company-River Divi- sion 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 rec- ognition shall not apply to bareboat charters to other operators, nor to crews of towboats of subsidiary or affiliated companies. All chief engineers, head deckhands, deck- hands, cooks, trainee engineers and tankermen employed by Inland Tugs Company-Canal Di- vision on boats owned, operated or chartered on a bareboat basis by it, excluding profession- al employees, guards and supervisors, as de- fined in the Act, and all other employees. This recognition shall not apply to bareboat char- ters to other operators, nor to crews of tow- boats of subsidiary or affiliated companies. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of rights guaranteed them under Section 7 of the National Labor Relations Act. WE WILL give the aforementioned Companies access to our hiring hall records, for purposes of inspection, at all hiring halls normally used by these Companies, including all daily activity re- ports, registration cards, job orders , clinic cards, job calls, and our headquarters' computer print- outs listing registrants at all hiring hall locations normally used by these Companies. SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC, GULF, LAKES AND INLAND WATERS DISTRICT, AFL-CIO APPENDIX C 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. WE WILL NOT refuse to recognize and bargain collectively with United Industrial Workers of North America of the Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO as the exclusive collective-bargaining representative in the unit of our employees described below. The appropriate collective-bargaining unit includes: All employees employed by American Com- mercial Terminals, Inc., at its coal transfer and manhole cover product facilities located in Louisville, Kentucky, excluding all office cleri- cal employees, professional employees, guards and supervisors, as defined in the Act. WE WILL NOT unilaterally fail to honor the dues- deduction authorizations of unit employees and to pay over such dues to the above-named Union in accordance with the terms and duration of any ap- plicable collective-bargaining agreement with the Union. WE WILL NOT refuse or fail to comply with the union-security requirements during the term of any collective-bargaining agreement that provides for union security. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of rights guaranteed under Section 7 of the National Labor Relations Act. WE WILL recognize and, on request, bargain col- lectively with the above-named Union as the exclu- sive collective-bargaining representative of our em- ployees in the bargaining unit which includes the previously described Louisville employees and WE WILL embody in a signed agreement any under- standing that may be reached. WE WILL honor employee dues-deduction au- thorizations submitted by the Union during the term of any collective-bargaining agreement that provides for the checkoff and payment to the Union of union dues and initiation fees. WE WILL reimburse the Union, with interest, for any losses due to our failure to honor the union dues-deduction authorizations of unit employees. WE WILL comply with union-security require- ments during the term of any collective-bargaining agreement that provides for union security. AMERICAN COMMERCIAL TERMI- NALS, INC. Raymond D. Neusch and Vyrone A. Cravanas, for the General Counsel. Vance D. Miller, Esq. (Moller, Talent, Kuelthau & Welch), of St. Louis, Montana, and David W. Miller, Esq. (Rob- erts, Ryder, Rogers & Neighbors), of Indianapolis, Indi- ana, for the Respondent Companies. Irwin H. Cutler Jr. and Alphonso ONeil-White, Esqs. (Segal, Isenberg, Sales & Stewart), of Louisville, Ken- tucky, Howard Schulman, Esq., (Schulman & Abar- bane), of New York, New York (on the brief), for the Unions. AMERICAN COMMERCIAL LINES 631 DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART, Administrative Law Judge. These consolidated cases were heard in New Albany, Indiana, pursuant to charges filed respectively, by Seafarers' International Union of North America, At- lantic, Gulf, Lakes and Inland Waters District, AFL- CIO (SIU), and United Industrial Workers of North America of the Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters Dis- trict, AFL-CIO (UIW).' These matters consider incidents involving two sepa- rate bargaining relationships-that between SIU2 and the following wholly owned subsidiaries of American Com- mercial Lines, Inc.: American Commercial Barge Line Company (ACBL),3 American Barge Line Company (ABL); Southern Ohio Towing Company, Inc. (SOTC); Northern Towing Inc. (NTI); and Inland Tugs Compa- ny-River Division and Canal Division (ITC), in the first instance. The second bargaining relationship is between UIW and Lousiana Dock Company, Inc. (LDC), and American Commercial Terminals, Inc. (ACT). UIW rep- resents a single multilocation unit of employees of LDC and ACT that is separate from the three bargaining units represented by SIU . Accordingly, allegations involving the respective units represented by SIU and UIW will be consecutively and separately considered.4 Consolidated complaints issued pursuant to charges separately filed by the two Unions allege that the Respondent Companies have variously violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act). A cross- complaint issued at the behest of ABL, ITC, SOTC, af- ' The parties' names and the caption appear as amended at the hearing. 2 In accordance with the parties' stipulation , I find that SIU and UIW are separate labor organizations a All Respondent Companies referred to in this decision, whether con- tractually involved with SIU or UIW, as explained below, are wholly owned subsidiaries of ACL, which, during the relevant period, was a wholly owned subsidiary of Texas Gas Transmission Corporation, for which ACL served as an intermediate holding company . ACL consists of two functionally diverse divisions, the Inland Waterways Services Divi- sion and the Trucking Services Division All employees herein are within the Inland Waterways Services Division , Barging Grouping , of which ACBL is the lead company . As such, ACBL, among other things, em- ploys crew dispatchers who provide crews for vessels operated by Com- panies under contract with SIU and UIW, and barge dispatchers who co- ordinate the assignment and movement of these operating companies' barges ACBL also provides personnel and labor and industrial relations services to the operating companies By the time of the events considered here, above-named operating companies, such as SOTC, ABL, and NTI, had been merged , directly or indirectly, into ITC. except for MAC Towing, Inc (MAC), which, as will be discussed below, is not actually involved in this proceeding The foregoing facts are summarized from the Board's decision in MAC Towing, 262 NLRB 1331, 1332 (1982), and Ad- ministrative Law Judge Thomas D Johnston' s decision in American Commercial Lines, 291 NLRB 1066 (1989), of which official notice is taken MAC apparently had been joined in his proceeding to Protect SIU's representational claims before the issuance of the above MAC Towing decision. The significance of Judge Johnston's decision, now pending on appeal , before the Board, on the present mater will be de- tailed below 4 While the matters affecting SIU and UIW do not overlap, as ACBL provides labor relations services for ITC and as SIU does the same for UIW, the same principal representatives for management and labor appear throughout-ACBL Vice President for Labor Relations Robert W Kilroy, and SIU Port Agent Michael G. Worley filiated companies of ACBL, and consolidated herewith, alleges that SIU has violated Section 8(b)(3) of the Act.5 The Respondents, in answering the respective com- plaints, deny commission of unfair labor practices. Issues 1. Whether ACBL and ITC jointly and severally vio- lated Section 8(a)(5) and (1) of the Act by repudiating the hiring hall provisions of collective-bargaining agree- ments establishing SIU as the exclusive referral source of employees for employment , thereby also discouraging membership in SIU in violation of Section 8(a)(3) and (1). 2. Whether the SIU violated Section 8(b)(3) of the Act by refusing to permit ACBL and ITC to examine certain hiring hall records , as requested, necessary and relevant to enable those Companies to perform their collective- bargaining functions. 3. Whether ACT violated Section 8(a)(5) and (1) of the Act by repudiating the provisions of its collective- bargaining agreement with UIW which provided for the deduction of union dues from the wages of employees who had authorized same, and for the remission of such dues to the UIW. 4. Whether ACT and LDC, in refusing to comply with UIW's request that 15 employees be discharged for failure to tender union dues, violated Section 8(a)(5) and (1) the Act by repudiating the union -security clause of the collective-bargaining agreement with UIW. 5. Whether ACT and LDC, in directly hiring 15 em- ployees, violated Section 8(a)(5) and (1) of the Act by re- pudiating collective-bargaining agreement requirements that notice be given to UIW of job openings and that the Union's hiring hall be used as the exclusive referral source of employees for employment , thereby also dis- couraging membership in UIW in violation of Section 8(a)(3) and (1) of the Act. 6. Whether ACT violated Section 8(a)(5) and (1) of the Act by unilaterally implementing a health and wel- s The docket entries are as follows The charge in Case 9-CB-4736 was filed November 12, 1980, and complaint issued December 30, 1980 An Order severing Case 9-CB-4736 from certain other matters with which it had been consolidated for hear- ing and approving a settlement agreement was issued on April 17, 1981 This settlement was set aside by an order issued February 24, 1982, and the complaint was reinstated The original charge in Case 9-CA-16703 was filed on April 16, 1981, and the original and amended complaints in that matter issued on May 22 and June 12, 1982, respectively The re- spective original and amended charges in Case 9 -CA-16993 were filed on June 16 and 29, 1981 , and complaint issued on July 17, 1981 The charge and amended charges in Case 9-CA-17053 were filed, respectively, on June 29 and July 15, 1981, and complaint issued on August 13 , 1981 The charge and amended charge in Case 9 -CA-17418 were filed on Septem- ber 14 and October 13, 1981, respectively , and complaint issued on Octo- ber 22, 1981 The charges in Case 9 -CA-17553-1-2-3, were filed on Oc- tober 15, 1981, followed by complaint on November 27, 1981. After issu- ance of several earlier consolidation orders, all the foregoing cases were finally consolidated for hearing by Order, dated February 24, 1982 The hearing was conducted on March 30 , 31 and April 1 and 2 , 1982, but is- suance of decision was delayed by the parties' stipulation discussed, infra At the hearing, the complaints and, correspondingly , the answers in all matters except Case 9-CB-4736 were amended and settlement agree- ments were approved in Cases 9-CA-16853- 1 and 9-CB-4887, also origi- nally consolidated with the above matters. 632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fare plan among its employees without notice to or bar- gaining with UIW. All parties appeared at the hearing, were represented by counsel and were given the opportunity to be heard, to present evidence, to examine and cross-examine wit- nesses and to file briefs. Briefs thereafter filed by the General Counsel, the Companies,6 and the Unions.7 On the entire records in these cases,9 the briefs of the parties as referred to above, and my observation of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION A. The Companies Involved ACL, a Delaware corporation based in Houston, Texas, as noted , is engaged as an intermediate holding company providing administrative and financial services to its below-named subsidiaries. During the 12-month period preceding issuance of the first of the various com- plaints herein, a representative period , ACL, in the course and conduct of its business operations , derived gross revenues in excess of $50,000 from the provision of such services to its subsidiary companies , ACBL, ABL, SOTC, NTC, ITC, MAC, ACT, LDC, and MAC. ACBL, ABL, SOTC, NTI, ITC, Delaware corpora- tions, and MAC, a Louisiana corporation, have or have had offices in Jeffersonville , Indiana,' 0 and are, and/or a ACL filed a separate brief from that of the other alleged Respondent- Employers. r Only the Companies exercised the option provided in my post-hear- ing Order of September 14, 1982 , issued at the parties' request , filing a supplemental brief after the issuance of Administrative Law Judge Thomas D Johnston's decision in American Commercial Liner, to argue the effect of that decision on issues raised in Cases 9-CA-16993 and 9- CA-17418 As will be explicated, Judge Johnston 's decision, which will be frequently referred to, is of particular relevance to this proceeding as the parties, instead of relitigating Certain matters tried before Judge Johnston that are germane here , stipulated that I be bound by Judge Johnston's findings on those matters, and that both his decision and my own be considered together on appeal by the Board 9 The Companies' motion, opposed by the Unions, that parts of the Unions' brief be stricken as unsupported by the record, upon careful con- sideration, is granted only to the extent relating to references in the Unions' brief characterizing the strike against certain of the Respondent Companies, including ACT, from July 15, 1980, to September 15, 1980, as an unfair labor practice strike The nature of this strike was not alleged or litigated here or in the related proceedings before Judge Johnston (American Commercial Lines, supra at 1155 fn 124), and there is no mean- ingful evidence to support the Unions repeated descriptions of this work stoppage as an unfair labor practice strike As these unsubstantiated refer- ences to the strike as an unfair labor practice strike necessarily compre- hend that it was caused and/or prolonged by unidentified unlawful con- duct on the part of at least some of the Respondent Companies and may affect other pending proceedings between these parties, the Unions' char- acterizations of the strike are prejudicial and are hereby stricken. Miami Foundry Corp., 252 NLRB 2 fn. I (1980), Operating Engineers, Local 18 (Ohio Contractors), 220 NLRB 147 fn. 3 (1975) As the Companies' dis- agreements with the Unions' interpretations of the evidence in the record do not support their further motions to strike other segments of the Unions' brief, these motions are hereby denied . Keller Mfg. Co., 237 NLRB 712 fn 1 (1978) 9 The Companies' motion with respect to Cases 9-CA-16993 and 9- CA-17418, opposed by the General Counsel and the Unions, that the hearing be reopened for purposes of receiving and deferring to a posth- earing arbitration remedy award , will be considered below as part of the discussion of those cases 10 Jeffersonville is across the Ohio River from Louisville, Kentucky. were, engaged in the interstate transportation of freight and commodities throughout the several States of the United States." In the above-described representative period, each of the foregoing Companies has performed services valued in excess of $50,000 outside the State of Indiana. LDC, a Louisiana corporation with an office and place of business in Mound City, Illinois, and ACT, a Dela- ware corporation, with an office and place of business in Louisville, Kentucky, are both wholly owned subsidiar- ies of ACL. LDC is engaged in the business of shipyard repair and servicing, while ACT is engaged in the inter- state and intrastate transportation of freight and com- modities throughout the several States of the United States. In the above-described representative period, LDC purchased and received at its Mound City facility, goods and materials valued in excess of $50,000 directly from points in the United States outside the State of Illinois, while ACT, in the conduct of its Louisville business op- erations, derived gross revenues in excess of $50,000 from the transportation of freight and commodities from the State of Kentucky directly to points outside the State of Kentucky. ACL, ACBL, ABL, SOTC, NTI, ITC, MAC, LDC, and ACT each are, or were, employers engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act.12 The hearing in this consolidated proceeding was con- ducted after the close of the aforementioned hearing before Judge Johnston, but before the issuance of his de- cision. As noted, to avoid relitigation of certain matters tried in the comprehensive proceeding before Judge Johnston,' a the parties stipulated with respect to Cases 9-CA-16993 and 9-CA-17418, herein, where unlawful failure to use SIU's exclusive hiring halls as the source for employees was alleged , that I should adopt Judge Johnston's findings as to the operation methods of the Companies' crew dispatch offices and SIU's hiring hall procedures, including, Judge Johnston's findings regard- ing the Companies' need to use the hiring halls when "old" employees are available for hire." The parties fur- ther stipulated concerning those cases and Case 9-CB- 4736, involving the same parties, that I need not make 11 As noted in American Commercial Lines, supra at 1092, on or about May 1, 1979, NTI ceased operations and its employees and equipment were transferred to SOTC pursuant to an agreement between NTI and SIU, the relevant employees' collective-bargaining representative Subse- quently, SOTC and ABL ended their corporate existence by a corporate resolution, effective on or about April 1, 1980, in which their operations, their SIU-represented employees and their equipment were merged into the operations of ITC-River Division 12 While the record shows, and I find, that NTI, ABL, and SOTC had been employers engaged in commerce within the meaning of the Act, no evidence was presented to show that they continued in business during the times relevant here As the matters presently alleged post -date the cessation of these Companies' operations, the evidence does not support complaint allegations that NTI, ABL, and SOTC had violated Sec 8(a)(1), (3), and (5) of the Act Accordingly , those allegations are hereby dismissed is The transcript record of Judge Johnston's hearing approximated 9000 pages 14 "Old" employees are defined here as individuals previously em- ployed by the Companies but who do not have a current seniority date AMERICAN COMMERCIAL LINES the bargaining unit determinations , but should rely on those made by Judge Johnston when his decision should issue. In so stipulating, at a time when the Board 's afore- said decision in MAC Towing, 15 was still expected, the parties were in agreement that SIU, at all relevant times, was the collective-bargaining agent for appropriate units of the Companies' employees who were covered by cer- tain collective-bargaining agreements described in the record. 11. THE LABOR ORGANIZATIONS INVOLVED SIU and UIW, as stipulated by the parties , are separate labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background In significant part, as noted, Cases 9-CA-16993 and 9- CA-17418, consolidated herein, continue American Com- mercial Lines, supra, heard by Administrative Law Judge Thomas D. Johnston.16 Reiterating, the parties stipulated that the issuance of my decision should await that of Judge Johnston so that I might have the benefit of and rely on his findings on the matters described above relat- ing to Cases 9-CA-16993 and 9-CA-17418. In those matters and in Case 9-CB-4736, involving the same par- ties, by stipulation, I also am to rely on Judge Johnston's findings as to appropriate unit. Judge Johnston's deci- sion, in turn, was not expected until issuance by the Board of its then-pending unit clarification decision in MAC Towing, supra, which appeared on July 27, 1982. In agreeing that I should be bound by Judge Johnston's de- cision in specified areas, the parties fully reserved their rights of appeal but are in accord that Judge Johnston's decision and my own be considered on appeal together by the Board. MAC Towing, held, contrary to SIU,that MAC is not an accretion to the Employer's operations, that its employees were represented by Inland River- man's Association, a rival union to SIU, and that it would be inappropriate in the context of unit clarifica- tion to seek to join previously existing separate bargain- ing units into one fleetwide unit. As the Board has found that MAC's relevant employees are represented in a sep- arate bargaining unit by another labor organization, and as the record in this proceeding contains no evidence of unlawful conduct by MAC, all complaint allegations that MAC has violated Section 8(a)(1), (3), and (5) of the Act are dismissed. 15 262 NLRB 1331 (1982) 16 The matters before Judge Johnston, heard in the period from May 1981, through January 15, 1982 , involved 15 consolidated complaints, in- cluding respective cross-complaints commencing with Cases 9-CA-14657 and 9-CB-4584 In his decision, Judge Johnston found , among other things, that ACBL, ACL, SOTC, and ITC had violated Sec 8(a)(1), (3), and (5) of the Act in certain respects, and that MAC had violated Sec 8(a)(1) and (3) of the Act, but dismissed an allegation that these Compa- nies had violated Sec 8(a)(2) of the Act He also dismissed all allegations of unfair labor practices as against ACL and NTI Judge Johnston fur- ther found that SIU had violated Sec 8(b)(3) of the Act by refusing to furnish certain information relevant and necessary for the Companies' proper execution of bargaining responsibilities. 633 Issues involved here also later were described by Ad- ministrative Law Judge Richard J . Linton in his decision in Louisiana Dock Co., 17 in considering whether certain aspects of these consolidated matters could affect a deci- sion in the proceeding before him, which involved later occurrences at ACT's Louisville, Kentucky, facility. Judge Linton found that these proceedings would not affect matters before him, and concluded that ACT, as LDC's successor at Louisville, violated Section 8(a)(1), (2), and (5) of the Act by unilaterally withdrawing rec- ognition from UIW as bargaining representative of its employees and by recognizing a Teamsters local union that did not have the support of a majority of the unit employees.18 The matters joined in this consolidated proceeding, as noted, involve two separate bargaining relationships. Employees of ITC19 are within three bargaining units represented by SIU, while employees of LDC and ACT are separately represented by UIW in a single multiloca- tion unit. Other Companies named in the pleadings are not involved either because they no longer were opera- tive during the times relevant or because they did not violate the Act. B. The Appropriate Bargaining Units 1. SIU-represented units Cases 9-CA-16993, 9-CA- 17418, and 9-CB-4736 Consistent with the above-noted stipulation of the par- ties that Judge Johnston's unit determinations be adopted with respect to the above-referred cases, I find the fol- lowing three separate bargaining units of SIU-represent- ed employees, all of whom are employed by ITC, to be appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act,20 and that, at all times material herein, SIU is and has been the exclusive bargaining representative of the employees of, ITC in the following separate units:21 All head deckhands, deckhands, cooks, trainee engineers and tankermen employed by ITC-River Division on boats owned operated and 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 towboat of subsidiary or affiliated companies. 17 297 NLRB No 65 (Dec. 15, 1989) 18 Also, as part of the stormy background, see Seafarers' Atlantic Dis- trict (Barge Lines), 244 NLRB 641 (1979) 19 Although ACBL does not itself employ SIU-represented employees, ACBL appears as corespondent with ITC in Cases 9-CA-16993 and 9- CA-17418 as it hires employees on behalf of ITC to work within SIU- represented units as ITC employees 20 The Board, in MAC Towing, supra, found that no engineers work on the towboat or harbor boats of ITC-Canal Division 21 As a result of their above-described mergers into ITC, these units also include the former employees of ABL and SOTC and, through earli- er merger into SOTC, of NTI. As each unit is covered by a separate agreement . SIU had two contracts with ITC covering the River Division and one contract covering the Canal Division 634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 towboat 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 towboat of subsidi- ary or affiliated companies. As the Board in MAC Towing, supra, found that MAC's relevant employees are represented in a separate bargaining unit by Inland Riverman's Association of America (IRA), a rival labor organization to SIU, and, as the record in this matter contains no evidence of un- lawful conduct by MAC, all complaint allegations that MAC has violated Section 8(a)(1), (3), and (5) of the Act are hereby dismissed. The above units, as found by Judge Johnston , are re- flective of the parties' bargaining history as embodied in the collective-bargaining agreements between ITC and SIU. The most recent of these contracts signed on Feb- ruary 1, 1977, was effective retroactively from December 31, 1976, through December 30, 1979. Since the 1979 ex- piration, there has been no new collective-bargaining agreement. 2. UIW-represented units Cases 9-CA-16703, 9-CA-17503, and 9-CA-17553- 1-2-3 In accordance with the further stipulation of the par- ties at the hearing that I select one of the two units alter- natively pleaded in the complaints of the above cases as appropriate, I hereby find the following unit to be appro- priate for purposes of collective bargaining within the meaning of Section 9(b) of the Act and that , at all times material UIW has been the exclusive representative of such employees of LDC and ACT: All employees employed by LDC and ACT at their Harahan and Westwego, Louisiana, fleeting22 and repair facility; their Cairo, Illinois, fleeting and repair facility; their Hennepin, barge cleaning and unloading facility; and their coal transfer and man- hole cover product facilities located at American Commercial Terminals in Louisville , Kentucky, ex- cluding all office clerical employees , professional 22 Fleeting services, or building tow, refers to the arrangement of barges lined up for a given tow in the order in which they will be dropped off along the way Employee groups who build tow are known as "bull gangs." employees, guards, and supervisors, as defined in the Act.23 Cases Involving Seafarers' International Union, American Commercial Barge Line Company, and Inland Tugs Company-River Division and Canal Division C. Alleged Avoidance of SIU's Exclusive Hiring Hall-Cases 9-CA-16993 and 9-CA-17418 1. The facts24 The General Counsel and SIU contend that since March 1981, Respondents ACBL,25 and ITC-River Di- vision and Canal Division have unlawfully repudiated contractual hiring hall provisions that establish SIU as the exclusive source for the referral of employees to these Companies for employment, and that from March 17 to August 17, 1981, these Respondents contravened the Act by directly hiring 23 named employees instead of filling those positions by a like number of employees obtained from SIU's exclusive hiring hall. The Companies, contrary to the General Counsel and SIU, contend that the parties by past practice have inter- preted the hiring hall provision of the various collective- 23 In selecting the above unit over the alternatively pleaded unit of."All employees, including leadmen , mechanics, helpers, laborers and apprentices, employed by ACT and LDC at their Louisville , Kentucky, facility, excluding all office and clerical employees, professional employ- ees, guards and supervisors, as defined in the Act," the selected multilo- cation unit appeared more germane as certain alleged unlawful conduct related to the Cairo, Illinois facility , as well as the Louisville, Kentucky facility. Also, the unit found herein conforms to that in the parties' last collective-bargaining agreement, effective August 19, 1976, through August 19, 1981. In explaining the need for this unusual alternative pro- cedure, the General Counsel represented that, at the time of the hearing, the Regional office could not take a position as to which of these two units were appropriate as that issue then was pending before the General Counsel's Division of Advice as part of a case arising in a different Region The other parties agreed with the General Counsel that one of these two units is appropriate for the purpose of this proceeding only, stipulated that they would not litigate the unit in question , and that I should designate one of the two pleaded units as appropriate . In selecting the unit indicated as most warranted by the applicable facts , it is noted that in Judge Linton's above-cited decision, which also involves ACT's Louisville facility, he found, under other circumstances, that, the second unit, limited to employees of that facility , was appropriate. While there is an appeal to decisional uniformity, in Judge Linton's case , unlike the present situation, all events occurred in Louisville. 24 Consistent with Judge Johnston's findings in American Commercial Lines, supra at 1093 fn 15 in part, based on MAC Towing, supra, that as ACL, the parent company, never has had a collective -bargaining agree- ment with SIU ; does not itself employ SIU -represented employees, does not provide operational control over its subsidiary companies ; does not receive reports concerning labor relations ; does not approve the hiring and firing of management personnel of its subsidiaries or the benefit levels negotiated by them with SIU, and as there is no evidence here that ACL has violated the Act , all allegations in the consolidated complaints that ACL has violated Sec . 8(a)(1), (3), and (5) of the Act are hereby dismissed. 25 Unlike ACL, its parent company, ACBL is operationally involved, acting, inter alia, as hiring agent and labor relations representative for its operating subsidiary, ITC, which, in turn, is under contract with SIU Al- though ACBL has never, itself, been party to a collective-bargaining agreement with SIU and does not directly employ bargaining unit em- ployees, ACBL management and dispatchers , in hiring employees for work on ITC-owned vessels, decide for ITC whether to use SIU's exclu- sive hiring halls Therefore, ACBL is properly joined as a party Re- spondent to this proceeding AMERICAN COMMERCIAL LINES • 635 bargaining agreements , including that contained in the most recent, expired contract, as not requiring that the hiring halls be asked for referrals when "old" or former employees are available for rehire . The Companies argue that under past practice, such former employees may be rehired directly.26 The Companies contend that certain of the new em- ployees among those named , who had had no relevant prior seniority dates when hired and whose direct hire is alleged as unlawful, were so employed only after unsuc- cessful efforts had been made to contact SIU hiring halls. Article I, section 2, of the most recent collective-bar- gaining agreement between ITC and SIU , effective De- cember 31, 1976, to December 30, 1979, provides: The Union agrees to furnish the Company with capable, competent and physically fit persons, when and where they are required to fill vacancies neces- 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. . . . the Company agrees to secure all its personnel 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 vacancies, 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. Article I, section 6, of the- contract incorporates the unlicensed shipping rules and provides that employees be referred by the Union according to their seniority classi- fications. Article II of the contract establishes a one-step griev- ance procedure, whereby Union representatives are to meet with Company representatives on complaints, dis- putes or grievances, within 7 days after the vessel reaches port, excluding Saturdays, Sundays, and holi- days. If the parties are unable to reach agreement, the second step is binding arbitration before a three-member panel. Each side designates one member of the panel, and the two thus selected name a third impartial arbitra- tor. Alternative procedures are provided in the event that there is difficulty in reaching agreement on the third impartial arbitrator. ITC, which directly employs the employees herein, is divided into separate Canal and River Divisions. The Canal Division, based in New Orleans, Louisiana, en- gages in the harboring and movement of barges in a region restricted to the area of Baton Rouge, Louisiana, south to the Gulf of Mexico and along the Gulf Coast. 26 As noted, the parties stipulated that SIU's hiring hall, the Compa- nies' crew dispatch procedures and the issue of the applicability of the hiring hall to "old" employees had been fully litigated before Judge Johnston and that I should accept his findings in these matters Canal Division towboats are smaller than those in the River Division , require fewer crewmembers and move smaller tows. As noted, no engineers are employed on Canal Division vessels. The Canal Division has its own general manager, marine superintendent, port captains, crew dispatchers, and barge dispatchers. ITC's River Division, based in Jeffersonville , Indiana, is engaged in towing operations. River Division crew dispatchers obtain personnel for that division's boats, and its barge dispatchers assign work to the division 's vessels. In the context of the above contractual hiring-hall clause, the parties stipulated that the following "old" em- ployees were directly rehired by ACBL for ITC on the dates indicated below, without recourse to SIU hiring halls, and were afforded new seniority dates as of their rehire: James F. Hyden March 21, 1981 Ronald H . Coulter March 22, 1981 Eddie L. Brandenburg May 6, 1981 Robert E. Orwick June 27, 1981 Robert E. Whipple June 27, 1981 Howard D. Hardie August 15, 1981 Samuel Carl Isaacs August 15, 1981 Mike Thomas Benecke August 17, 1981 The parties further stipulated that the individuals named below, who, also, had not been obtained from SIU's hiring hall, were hired for the first time as new employees by ITC on the indicated dates: Harold Kingsmill March 27, 1981 Nauyen Tai Tu July 6, 1981 Gerald Lee Babb July 16, 1981 Paul Foster July 25, 1981 Marty Olsson July 28, 1981 Edward Craig Miller August 15, 1981 Lamont Moore August 15, 1981 Danny Scott August 15, 1981 Jay Jackson August 17, 1981 Jerry Latham June 17, 1981 Bobby Hicks May 8, 1981 J. N. Nimon May 7, 1981 Thomas Enthwistle May 8, 1981 Johnny Goldman May 7, 1981 Jim Wilson May 8, 1981 The parties stipulated that, of the above new employ- ees, Ringsmill, Nauyen Tai Tu, Babb, Foster, Olsson, Latham, Hicks, Nimon, Enthwistle, Goldman, and Wilson were hired for ITC by ACBL's New Orleans, Louisiana, crew dispatch office, and that when the New Orleans crew dispatch office called an SIU hiring hall, that office normally and customarily called the SIU New Orleans hiring hall and not the Union's hiring halls at any other location. The parties further stipulated that employees Miller, Moore, Scott, and Jackson were hired for ITC by ACBL's Jeffersonville, Indiana, crew dispatch office, and that the Jeffersonville crew dispatch office, when it called an SIU hiring hall to fill jobs where employees were to board boats at Jeffersonville, normally and cus- 636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tomarily called the SIU Jeffersonville hiring hall and not the Union's hiring halls at any other location. In accordance with the parties' stipulation that I be bound by Judge Johnston's findings concerning the oper- ations of the SIU hiring hall and ITC's crew dispatch system, the following relevant passages are excerpted from his decision in American Commercial Lines, supra at 1126: Respondent's Jeffersonville (River Division) 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 engi- neers, assistant engineers and trainee engineers are shipped by Superintendent of Boat Maintenance Breen's office. The shipping procedures used by the Jeffersonville office . . . 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 employ- ees who previously worked for Respondents but have since had a break in their seniority which occurs where employees are discharged; quit and leave the vessel short-handed; fail to show up for an assignment without notifying the office what hap- pened; and have been gone for over 6 months with- out working. New employees are those employees who have never worked for Respondents previous- ly. [Emphasis added.] 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 avail- able, taking into consideration the location, time and job classification, they are then assigned to such jobs subject to the approval of the captain of the vessel who is contacted. Crew dispatchers may also contact for jobs regu- lar employees81 whose acquired time off period82 is up and employees requested by captains of the ves- sels. No distinction is made between shipping current an old employees except during the period between December 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 employees are then shipped. New employees are hired by applying directly for employment with Respondents or being referred by the Union hiring hall. Respondents' port captains can also hire employees in emergencies . Emergen- cies . . . exist where there is short notice and the vessel is operating shorthanded and it is necessary 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 current and old employees available for work who have contacted them , as well as those employees whose acquired time off period is about up whom they contact to see if they are ready to go back to work early, Respondents then contact the Union hiring hall to hire employees if there is sufficient time to do so. Supervisor of payroll and personnel Anita Sue Eve estimated it takes approximately 24 hours to go through the Union hiring hall which in- cludes 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. [E]very 10 days to 2 weeks up until December 31, 1979, when they stopped, Respondents would furnish the Union with a list of the emergency hires containing the employees' names and their address- es, telephone numbers, job classifications, social se- curity numbers and the vessels they boarded with the dates. Respondents also furnished the Union with the boat payroll records which showed the vessels 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 While they are regu- larly employed on boats, and without breaks in their seniority, they do not ships 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 Judge Johnston found that on August 31, 1979, 3 days after the Board issued its decision in Seafarers' Atlantic District (American Barge Lines), supra,27 the Respondent Companies stopped using SIU's hiring halls and discon- tinued contributions to the Union Hiring Hall Trust Fund. In American Barge Lines, the Board found SIU's hiring hall system to be in violation of Section 8(b)(1)(A) and (2) in that it favored job seekers who were SIU members over nonmembers and required signatory em- ployers to discriminate with respect to hiring. This there- after was corrected by amending the Unlicensed Ship- ping Rules, which govern hiring hall operations, estab- lish seniority classifications used by the Union in making referrals, and are incorporated into the collective-bar- gaining agreement. Adherence to these seniority prefer- ences, in tandem with the union-security requirements binding on signatory employers, had been deemed at fault. Judge Johnston found that in October 1979 the Companies agreed that the Shipping Rules, as amended to remedy the problem, brought the referral system into complete conformity with the Board's decision and re- jected the Companies' further contention that their legal obligation to resume use of the hiring hall was condi- tioned upon the parties reaching a new agreement on procedures to get employees sent from the hiring halls.28 Judge Johnston concluded that since October 1979 the Board's earlier objections to the lawfulness of the SIU hiring hall system, as raised in Amercian Barge Lines, 27 244 NLRB 641 28 American Commercial Lines, supra at 1129 AMERICAN COMMERCIAL LINES 637 supra, had been laid to rest and that the Companies were obliged to continue its use. Although not the subject of stipulation , Judge John- ston in American Commercial Lines, supra at 1126-1127, made the following findings concerning the historic use of SIU's hiring halls: During the period between September 1 and De- cember 30, 1979, Respondent's Jeffersonville office hired approximately 154 employees as new unit em- ployees 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 in order to fill such job vacanices and the Union has been aware of such conduct since at least 1977. Re- spondents prior to September 1 also frequently hired a substantial number of employees through the Union hiring hall and has done so at least since 1977. From September 1 to about April 1, 1981, Re- spondent's Jeffersonville crew dispatch office pro- cured from the Union hiring hall four employees in October and one employee each month in Decem- ber 1979 and in January and March 1981. From De- cember 30, until about January 1, 1981, that office did not call or attempt to call the Union hiring hall to secure any employees in the units represented by the Union but did contact or attempted to contact the Union's hiring hall twice in January 1981 and once each in February 1981 and March 1981 to obtain employees. During the period December 30 to July 14, 1980, Respondents hired numerous indi- viduals as new unit employees without securing or attempting to secure those employees through the Union hiring hall. Respondent's records including payroll records, employment cards, and crew change logs reflect that for the period January 1, 1978 through Decem- ber 31, 1979 Respondents's crew dispatch office re- hired approximately 469 employees83 after their se- niority had been broken during this period whereas only approximately 93 such employees were rehired through the Union hiring hall during that time. as Respondents hired approximately 13 of these employees after first contacting the Union hiring hall which could not furnish them. Judge Johnston's decision describes numerous protests by SIU officials concerning the Companies' hiring hall evasions. In the present matter, the Companies, while stipulating above-named individuals were hired on the dates shown without having been referred by a SIU hiring hall, contend that they acted properly under ap- plied contractual interpretations and past practice, and that, therefore, the collective-bargaining agreement hiring hall provision was not repudiated. This, of course, is disputed. The Companies have two basic points. First, that eight of the employees named who were hired directly were "old" employees, defined as persons who previously had worked for the Companies but since have had a break in their seniority . Seniority, as noted, is lost when employ- ees are discharged; quit and leave the boat short -handed; fail to show up for an assignment without notifying the Companies as to cause ; and have been gone or laid off for more than 6 consecutive months. The Companies contend that, under past practices, they are free to di- rectly rehire such "old" employees without recourse to SIU's hiring hall. Second , the Companies argue that the other employees had been hired without referral either because the hiring hall had been closed during the week- days when the men were needed, or the employees were hired on weekends or after hours in response to emer- gency crewing requirements and that it would delay scheduled departure times to await the services of the hiring hall. Hyden, Coulter, Brandenburg, Orwick, Whipple, Hardie, and Isaacs-the "old" employees29 Anita Sue Eve, ACBL's supervisor for personnel and payroll,30 testified that consistent with the Respondents' above interpretation of the contractual hiring hall provi- sion and past practice, 8 of the 23 above-named employ- ees were rehired as "old employees" without contacting the SIU hiring hall. These included James F. Hyden, Ronald H. Coulter, Eddie L. Brandenburg, Robert E. Orwick, Robert E. Whipple, Howard D. Hardie, Samuel Carl Isaacs, and Mike Thomas Benecke. The undisputed work histories of some of these employees with the Companies before their disputed direct reemployment are worth noting.31 Hyden was first hired on December 4, 1971, as a lead deckhand on the Motor Vessel (M/V) Clyde Butcher. He continued with the Companies until quitting on Decem- ber 20, 1971, thereby breaking his seniority. Hyden re- turned to work for the Companies on April 17, 1972, on the, M/V J. E. Alquist and continued in the Companies' employ until his senority was next broken on August 22, 1972, when he quit leaving the Clyde Butcher short- handed. He turned to work for the Respondents again on October 10, 1972, aboard the Floyd H. Blaske. Hyden's seniority was broken between that trip and the next be- cause he was gone for more than 6 months. He returned to work on June 8, 1973, aboard the Stephen Foster, his seniority continuing until broken on February 19, 1979, when he quit, leaving the boat short-handed. Hyden at- tempted to return on September 2, 1975, but showed up drunk and was put off the boat. 32 Hyden again was re- tained on November 30, 1975, aboard the Owen Childress, and continued to work until July 18, 1977, when his se- niority was broken when he again quit leaving the Sonny Ivey short-handed. Hyden returned to work on July 30, 29 Although Benecke, too, was regarded as an "old" employee, his hire will be considered below in a separate context 30 Eve, who testified in the proceeding before Judge Johnston , super- vises ACBL's crew dispatchers at Jeffersonville, Indiana. Eve reports to Captain Carl Cannon , ACBL's marine superintendent at Jeffersonville, who, in turn, is responsible to Jack Bullard, vice president of operations. 2i The following work histories are undisputed. S2 In September 1975, Hyden had no seniority as it had been lost when he had resigned, leaving the Stephen Foster short-handed 638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1977, above the Sonny Ivey.33 Hyden's seniority next was broken on March 3, 1978, because he failed to show up for the Henry D. He was rehired again on March 10, 1978, aboard the Sonny Ivey with seniority from the date of his last rehire. Hyden's seniority again was broken on April 8, 1978, when he failed to show up. The Compa- nies attempted to ship Hyden on April 17 and August 25, 1978, but on both occasions he failed to show. Following his August 25 nonappearance, Hyden was suspended for 30 days. Hyden returned to work on November 29, 1978, aboard the Pat Breen with seniority as of that date. His seniority was broken on October 3, 1980. The Respond- ents attempted to rehire him on November 19, 1980, but he again failed to show up for an accepted job assign- ment. Hyden again returned to the Company on March 21, 1981, aboard the Charles E. Peters, with seniority as of that date. The hiring hall had not been contacted at that time because Hyden was considered an "old" employee. It was this rehire that is disputed in the proceeding. It is undisputed that when Hyden was reshipped through the Companies' Jeffersonville crew dispatch office from 1977 through March 21, 1981, the hiring hall had not been contacted and no grievance had ever been filed concern- ing his rehire without use of the hall. Ronald Coulter's work history with the Respondents was briefer. Coulter was first hired on July 27, 1979, aboard the Henry D.34 Coulter worked for the Compa- nies until October 11, 1979, when his seniority was broken because he had quit leaving the Henry D. short- handed. Coulter returned on October 31, 1979, aboard the John Matthews, with seniority as of the date of his rehire. He worked until February 8, 1981, when he was discharged from the J. W. Hershey for being drunk, thereby breaking his seniority. Coulter returned to work on March 22, 1981, the date of his alleged unlawful hire, aboard the Carl A. Shelton, having been hired through the Jeffersonville crew dis- patch office. The Union was not contacted at that time because Coulter was regarded as an old employee. Ed Brandenburg first was hired on June 2, 1979, on the Dan J. Hullman. Brandenburg continued until his se- niority was broken on April 16, 1980, because he could not be contacted and was gone for more than the 6- month period after which unemployed employees' se- niority is lost. On July 14, 1980, Brandenburg returned to work for the Company and remained until February 13, 1981, when he quit, leaving M/V H. ONeil short-handed. Brandenburg was rehired on May 6, 1981, aboard the Del Butcher. The union hall was not contacted before Brandenburg was shipped to the Butcher as Brandenburg was considered an old employee. The union hiring hall was not contacted before Robert Orwick was first hired by ABCL on July 1, 1978, and no '3 The log entry for July 30, 1977, shows that Hyden was rehired from the Respondents' Jeffersonville crew dispatch office The hiring hall had not been contacted 34 Although when Coulter was hired for his first job with the Compa- nies by the Jeffersonville crew dispatching office, the hall had not been contacted no grievance was filed over this circumvention grievance was filed because of the Companies' failure to use the hiring hall . Orwick continued to work until Oc- tober 18, 1978, when he quit leaving his vessel short- handed . He returned to work on January 27, 1979, and continued in the Companies' employ until June 30, 1979, when his seniority was broken. The June 27, 1981 rehire dispute in this matter was oc- casioned by Orwick's next return to work, on that date, after being shipped through the Jeffersonville crew dis- patch office. Eve explained that Orwick was rehired as an "old" employee without resort to the hiring hall, al- though at the time he had not worked for the Company for approximately 2 years, because it was the Companies' practice that anyone who previously had worked for the Company would be called back before the Company would contact the hall. Eve did not know of any outer limit concerning lapsed time away from the Respondents' employ that would effect the status of an "old" employ- ee. Anyone who ever had been previously employed by the Company would be considered for reemployment in that category if they reapplied.35 In addition to the above, Eve testified that the follow- ing individuals also were rehired as "old" employees on the dates shown without prior notification to the hiring96 hall: Robert E. Whipple June 27, 1981 Howard Hardie August 15, 1981 Sam Isaacs August 15, 1981 Mike Benecke August 17, 1981 Miller, Scott, Moore, Jackson, and Benecke Supervisor Eve testified regarding reasons why certain other new, as opposed 'to "old," employees were hired directly without referral from the SIU hall, although previously not employed by the Companies. With respect to the disputed August 15, 1981 hires of Edward Craig Miller, Donnle Scott, and Lamont Moore, and of Jay Jackson, hired on August 17, 1981, the parties stipulated that Miller, Moore, Scott, and Jackson were engaged by the Jeffersonville crew dispatch office as new employees on the above-indicated dates, and that they had not been obtained through the hiring hall. Eve related that on Saturday, August 15, 1981, about 9 a.m., she was called by Captain Carl Cannon , ACBL's marine superintendent, who informed her that it was necessary to crew the Sonny Ivey that night in time for its sched- uled midnight departure. A normal crew for the Sonny Ivey would consist of seven employees. Four current em- ployees had been hired on August 15 for the Ivey, leav- 35 No grievance had been filed by the Union concerning the Compa- nies' failure to use the hiring hall when it earlier had rehired Orwick on January 27, 1979 36 Hardie's rehire on August 15, 1981, marked his fifth period of em- ployment by the Respondents since October 1975 On one occasion, on September 20, 1979, he was discharged for fighting aboard his assigned vessel. Prior to his August 1981 rehire, he had not worked for the Com- panies since July 22, 1980, when he had resigned . The Respondents, in- consistent with their own premise , earlier in June 1978, had hired Hardie through the hiring hall although he had been previously employed Eve testified in explanation of this that the hall had been contacted at the time because the Companies had not known that Hardie was available. AMERICAN COMMERCIAL LINES 639 ing three vacancies who, as noted, were needed by mid- night. Eve testified that Miller, Moore, and Scott were re- tained on August 15 for the Ivey from a pool of appli- cants maintained by ACBL for hiring purposes in situa- tions where that Company could not fill jobs by using active employees or by going through the SIU hiring hall. The pool consisted of job applicants some of whom may have worked for the Company before and others who were inexperienced. The Companies contend that it had been necessary to use this pool to hire Miller, Moore, and Scott on August 15, 1981, and, also, in hiring Jay Jackson , and Mike Ben- ecke37 for a different vessel on August 17, as serious ef- forts to reach the appropriate Jeffersonville hiring hall had been unsuccessful.38 The task of crewing the Sonny Ivey on August 15, before Miller, Scott and Moore were hired, had fallen to Mary Krall, an ACBL crew dispatcher in Jeffersonville, who reported to supervisor Eve. Krall related that at 8:30 a.m. on August 15, she received a call from Eve who told her that the Sonny Ivey required one lead deck- hand, five deckhands, and a cook that night. Krall, at 9 a.m., telephoned the Jeffersonville hiring hall, but received no answer. She then called Robert W. Kilroy, ACBL's vice president of labor relations, and re- ported that she could not get an answer at the hiring hall. Kilroy said that he would try and promised to call her. Kilroy related that he then personally called the SIU hall in Jeffersonville several times but also was not able to get an answer . He then drove to the SIU hall, arriving there around 9:30 a .m. He parked his car in front of the hall and observed that the drapes were closed. Kilroy then knocked several times, waited and knocked several times again, receiving no response . Kilroy then called Krall, told her that the hiring hall was closed and in- structed her to obtain employees from the Companies' own sources. It was then that Krall went to the employ- ee pool and filled the three remaining open jobs on the Sonny Ivey with Moore, Scott, and Miller. Krall also was instrumental in the hire of Jackson and Benecke on August 17. She first learned of the need for employees on the Frank Phipps on that date when, around 4 p.m., boat's the captain called with a request to fill three vacancies. Krall testified that she attempted to fill these jobs by calling previous employees, but re- ceived an affirmative response only from Benecke. Before filling the two remaining jobs from the new employees' pool, Krall tried dialing the SIU Jefferson- ville hall approximately five times between 4:15 to 4:45 p.m. The line always was busy. She then called Kilroy and told him of her efforts to reach the hall. Kilroy re- plied that he, too, had tried earlier to reach the hall and also had received a busy signal . Kilroy, after finding the hall closed, authorized Krall to hire new employees from 37 Benecke was described above as an "old" employee 39 The parties stipulated that Jac/ von and Benecke boarded the M/V Frank Phipps on August 17 at Harahan, Louisiana Harahan is a suburb of New Orleans the Company's employee pool. In this manner, Jackson was hired.39 Supervisor Eve and crew dispatchers Krall and Nancy Venegas4O testified that they had not known of the exist- ence of a toll-free telephone number established by the Union at its hiring hall in St. Louis, Missouri, to receive job calls on weekends and holidays. The Companies were given notice of this toll-free number in the follow- ing letter, dated March 9, 1981, to Kilroy from Mike Sacco, SIU vice president: In order to facilitate hiring by SIU inland compa- nies on Sundays and holidays, the SIU has again es- tablished a toll-free number for job calls at the SIU hall in St. Louis. This number, 800-(seven digit tele- phone number), will be manned on Sundays and holidays from 8 a.m. to 12 noon Central Time. It goes without saying that we continue to re- quire that contract and shipping rules provisions re- garding proper advance notice of job requirements and other provisions continue to be observed. All SIU hiring halls continue to be open each week day from 8 a.m. to 5 p.m. and Saturday from 8 a.m. to 12 noon for regular operations . We believe most week-end job needs could be met at these times. The letter ended with a statement of the need for co- operation.41 Hicks, Wilson, Entwhistle, Nimon, and Goldman Crew dispatcher Venegas also was instrumental in the hire of the other new employees who, as stipulated, had been engaged without referral from an SIU hall. She ex- plained the circumstances by which they came to be em- ployed, as follows. Bobby Hicks, Jim Wilson , Thomas Entwhistle, and John M. Nimon were hired by Venegas after Venegas had received a call on May 7, 1981, around 6 p.m., from Marine Superintendent Clark that he needed to ship five deckhands immediately. Venegas then called the SIU hall in New Orleans about 6 : 10 p.m. Receiving no answer, she went through job applications kept at her 39 Kilroy testified that on August 17, around 3 .30 p.m , before speaking to Krall , he had received a busy signal when he tried to call the union hall After speaking to Krall that day, but before telling her to act, he again drove approximately 2 miles from his office to the SIU hall, arriv- ing there approximately 4 45 p in. He found the office closed. 40 Venegas is the only ACBL crew dispatcher in New Orleans, Louisi- ana Her job, as is Krall's in Jeffersonville , is to dispatch deckhands to ITC tugboats, to arrange their transportation, and to maintain relevant records. Venagas reports to Captain Ted Ewing , New Orleans port cap- tain, and to Captain Donald Clark , marine superintendent 41 Kilroy testified that he did not transmit the information contained in the March 9, 1981, letter to anyone in the Companies , explaining, that during the 1977 contract negotiations , the Company had rejected SIU President Frank Drozak's statement that the Union was going to install a toll-free number to be used by the Companies on the weekends to get people dispatched to the boats . On that occasion, Jack Wofford, then ACBL vice president of operations, had replied to Drozak that the Com- pany was having enough problems getting the people to the boats from the halls in the area and , as far as he was concerned, the Company was not interested in implementing any "800" number This matter was not brought up again until SIU 's above March 1981 letter 640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD home, explaining that these were stored there as she is on call to fill crewing needs on a 24-hour basis . Accord- ingly, she must keep applications in reserve to meet after-hours emergency needs.42 Venegas again called the union hall that evening at 7 clock. When there again was no answer, she then pro- ceeded to call individuals from the applications at her home. In so doing, she called four of the men in issue, Hicks, Wilson, Entwhistle, and Nimon. Venegas reached and hired Hicks by telephone on May 7, about 10:30 p.m. That evening she also similarly hired Wilson, Entwhistle, and Nimon and, then, about 11 p.m., called Captain Clark to inform him his personnel request was completed . Clark replied that he would con- tact someone he knew whom he would be able to put on the boat. The next day, Clark told Venegas that he had hired Johnnie Ray Goldman during the previous night.43 The five men hired on May 7 by Venegas and Clark, respectively, Hicks, Wilson, Entwhistle, Nimon, and Goldman, all boarded different vessels on May 8. Venegas explained that she had hired the four men she had called on May 7 without obtaining referrals from SIU's hall as the Union had not answered her calls. She could not have waited until the next day to call the hall because Captain Clark had informed her that he needed the men immediately . She had not used current employ- ees to fill these positions as none had been available. Foster Foster who agreed to come to New Orleans that evening. The need for his services was immediate. She arranged a flight for Foster to arrive in New Orleans about 11 p.m. on July 25, met him at the airport and per- sonally took him to the boat around 11:30 p.m. Nauyen Tai Tu Nauyen Tai Tu was hired by Venegas on July 6, 1981, as a deckhand on board the W. O. Watson following a call from Clark on the evening of Sunday, July 5. Clark reported that the Watson needed a man as soon as possi- ble. Venegas obtained Nauyen Tai Tu's name from the Jeffersonville crew dispatch office, called and asked if he was ready to go to work. When he said that he was, Venegas made arrangements for him to travel to New Orleans where he boarded the Watson on July 6. Venegas explained, in connection with Nauyen Tai Tu's hire, that she had not used current employees as none were available and had not called the SIU hiring hall after receiving Clark's call as it was a Sunday. She similarly did not wait until the next day, Monday , July 6, to contact the hiring hall as she had been told that some- one was needed the first thing in the morning . Although the hiring hall actually was closed that July 6 as part of the Fourth of July weekend observance, this played no role in Venegas' decision not to call the hall as she ad- mittedly had not known at the time that it would be closed. Venegas testified that she had employed Paul Foster, a new employee on July 25, 1981, as a deckhand on the James E. Philpott, to replace deckhand Joe Forrester, whom she supposedly had dispatched to the Philpott for the morning of July 25. Although Forrester, then cur- rently employed by the Companies , was to arrive at New Orleans to board the Philpott around 6 :30 a.m., 2 hours later, he still had not appeared . When Venegas called Forrester's Cincinnati, Ohio home, he still was there. He gave an explanation and offered to leave on the 12 :30 p.m. flight if Venegas would arrange same. Venegas did so, but at around 12 noon , Forrester called to state that he did not think he could make the flight but was going to try. He promised to call Venegas from the airport, which he did, announcing that he had missed the flight. Venegas then arranged another flight for For- rester, to arrive in New Orleans on July 25 at 5 p.m. By 6:30 p.m., Forrester still had not arrived. Venegas then called ACBL's crew dispatching office in Jeffersonville, which pulled Foster's application.44 Venegas then called 42 Venegas related that she kept at most 10 applications from deck- hands at her home , whom she selected for hire on the basis of experience rather than in the chronological order in which they had been filed with ACBL This was because if someone was needed immediately , the crew- member would have to be experienced In practice , Venegas, where pos- sible, preferred to call the Jeffersonville crew dispatch office before using the applications at her home as that office had on file applications of indi- viduals who had been trained at the National River Academy 43 As matters worked out, Goldman, whose direct hire at the time also is in issue here, first began to work for the Company on May 8, 1981, took one 10-day trip and resigned 44 Although Venegas had been the New Orleans crew dispatcher since February 11, 1981, even to the time of the hearing, she never had been told the hours of operations of the New Orleans hiring hall While she Latham Jeffrey Latham first was hired by Venegas on July 7, 1981, following a 4:30 a.m. call tnat day from Clark who told her that someone was needed immediately for the James E. Philpott. Venegas called the SIU hiring hall around 5 a.m. When no one answered , she went through the job applications at her home and called Latham who boarded the Philpott that day. Venegas explained that she had obtained Latham from her own sources instead of from the hiring hall as no one there had answered her call. Kingsmill Harold Kingsmill was first employed on March 27, 1981, by Clark as a deckhand aboard the Ike D., Venegas related that at 7:30 p.m., Clark had called her at home and informed her that a deckhand was needed immedi- ately as someone in that classification, a deckhand ex- pected to report at 6 p.m., had not shown up. No one at the SIU New Orleans hall answered her calls made about 7:45 and 8 p.m. She then went to the office to review applications to see if there was anyone she could hire locally. When she discovered that there were no im- mediately available locally based job applicants, she called Clark and so informed him. Clark replied that he knew someone in the area whom they could hire, and, accordingly, Kingsmill was retained. had attempted to call the hall at 7 p in . in connection with her May 7 personnel needs, by July of that year she realized that the hiring hall was not open after 6 p in AMERICAN COMMERCIAL LINES 641 Olsson Marty Olsson also was hired by Clark on July 27, 1981, after two deckhands Venegas had been in the proc- ess of transferring to the Philpott did not report. When Venegas was unsuccessful in replacing the missing deck- hands, she informed Clark on July 27 around 11 p.m. Clark then hired Olsson. In addition to the above-named individuals, whose direct hire by the Respondents is alleged as unlawful, Venegas hired approximately three other employees to work for ITC between March 27 and July 28, 1981. All three of these individuals were obtained from the SIU New Orleans hiring hall although , in each case, either Clark or Ewing had notified her that personnel were needed urgently for hire . On these three occasions when she did call the union hall, employees were referred. Neither Ewing nor anyone else in management, as noted, had advised Venegas of the availability of SIU's toll-free telephone number for referrals on weekends and holidays. Also, Venegas never requested information from union officials about what should be done to obtain referrals after the hiring hall's normal business hours, nor did she request the home telephone number of any hiring hall officials, or even inquire as to what the hall's busi- ness hours were. Venegas never reported to SIU that on May 7, and on other dates, she had been unable to reach the hall and had hired directly . She originally was in- structed by Ewing and Clark on becoming crew dis- patcher that she was to call the SIU New Orleans hall when it was necessary to fill jobs either during or after normal business hours if there were no current employ- ees available for dispatch . She was not instructed to notify the Union about employees who had not been ob- tained through the hiring hall. In 1981, ACBL and ITC used SIU's hiring halls then located in Jeffersonville , Indiana; Paducah, Kentucky; St. Louis, Missouri; New Orleans, Louisiana; and Piney Point, Maryland . SIU's headquarter's office is in Brook- lyn, New York . Although the hiring halls in Jefferson- ville and Paducah were closed at the end of September and in October 1981, respectively, they still were in op- eration during the events considered here. The record shows that in 1978 , without going through SIU's referral system, the Respondents hired approxi- mately 500 new employees who had not previously worked for the Respondent Companies. From January 1, 1979, through August 31, 1979, the Respondents hired between 225 and 240 new employees without first going through the union halls.45 2. Discussion and findings Although the relevant collective-bargaining agree- ments expired before the occurrence of the events con- sidered herein, the hiring hall provisions in these con- 45 On a more detailed basis, the record shows that the Respondents called SIU's hiring halls on four Sundays in 1979, between June 10 and August 19, to obtain job referrals, and that the calls had been unan- swered. No grievances were filed when the Companies directly hired four new employees to fill those vacancies tracts are mandatory subjects of bargaining46 and, as such, survive the originating agreements .47 It is settled that, absent impasse during good -faith bargaining with the union, nondiscriminatory48 hiring hall provisions are not subject to unilateral change . An employer's refusal to honor the terms and conditions of a contractually grounded accord by which it is bound is violative of Section 8(a)(1), (3), and (5) of the Act.49 "Old" employees Here, it is undisputed that ACBL directly hired eight "old," or former employees , Hyden, Coulter, Branden- burg, Orwick, Whipple, Hardie, Isaacs, and Benecke, to work for its sister company, ITC, without attempting to first contact SIU's hiring hall for referrals. As noted, the parties stipulated that the issue of "old" employees had been fully litigated during that part of the proceeding before Judge Johnston analogous to this, and that I should be bound by his conclusions on this point subject to the parties' right to appeal both decisions to the Board for simultaneous review. In finding that the Respondents violated Section 8(a)(1) and (5) of the Act by repudiating the contractual hiring hall provisions, as alleged here, Judge Johnston held that: The hiring hall provisions of the contract, which are clear and unambiguous on their face, provide for an exclusive hiring hall whereby Respondents are required to secure all of their unit employees through the Union hiring hall except in those cases where the Union is unable to furnish them . Another exception although not contained in these provi- sions themselves allows those employees , who are regularly employed aboard a vessel, without breaks in their current seniority, to be employed directly by Respondents. Although the evidence reveals Re- spondents have with the Union 's knowledge hired employees directly without contacting the Union's hiring hall as required under the contracts, the Union had protested such conduct to Respondents' representatives who offered various excuses for doing so. [American Commercial Lines, supra at 1129.] More directly, on the matter of "old" employees, Judge Johnston , with respect to the direct rehire of a former worker, held, at 1157: However, having lost his seniority the contract provisions precluded Respondents from hiring him directly. The fact Respondents had previously hired such employees directly as discussed , supra, would afford no defense to Respondents since the Union 49 Tom Joyce Floors, Inc, 149 NLRB 896, 905 (1964), enfd. 353 F.2d 768 (9th Cir 1965), Associated General Contractors Houston Chapter, 143 NLRB 409, 413 (1963), enfd. 349 F 2d 449 (5th Cir 1965), cert denied 382 US 1026 (1966) 49 Oneita Knitting Mills v. NLRB, 375 F 2d 385, 388 (4th Cir 1967) 48 There is no contention that the hiring hall provisions in this matter are discriminatory. 49 Appalachian Construction, 235 NLRB 685, 686 (1978) 642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD had not agreed to such an exception or waived its contractual rights but instead had protested such conduct. Judge Johnston therefor concluded that the uncompli- cated contract language establishing the referral system required the Respondents to fill all their job vacancies from the SIU hiring hall except where the Respondent is unable to furnish employees and where current employ- ees are available. As former, or "old," employees did not come within either of these exceptions to the mandatory use of the hiring hall, he found that the Respondents had violated Section 8(a)(1) and (5) of the Act in directly hiring an "old" employee without going through the hiring hall. Based on Judge Johnston's decision, in the context of the above authority and the parties' stipula- tion, it is concluded that in directly hiring seven of the above-named eight "old" employees,50 the Companies unilaterally repudiated the contractual hiring hall provi- sion in violation of Section 8(a)(1), (3), and (5) of the Act. In so concluding, I note that the Respondents' defini- tion of "old" employee is extremely broad as there is no outer time limit from when a former employee's seniority is lost to when he might again be hired without recourse to the hiring hall. Accordingly, under a maximal example consistent with the Companies' concept, the Respondents would not be obligated to use the SIU hiring hall to fill a job vacancy if they could locate a former employee who had not been employed by them for 40 years. On a lesser scale, the disputed rehires of Orwick and Isaacs took place after each had been away from the Companies for 2 years or more. The Respondents' asserted bond to its "old" employ- ees appears to be unrequited . In the 9-1/2 years of Hyden's intermittent association with the Respondents before his contested rehire, he had quit leaving his boat short-handed on four occasions . Five times when hired directly, he did not show up for agreed-to job assign- ments, and on one of these instances was suspended by the Respondents for 30 days. On another occasion when he did show up on a direct rehire, having earlier lost his seniority by leaving his boat short-handed, he turned up drunk and was put off the boat . When again rehired as an "old" employee on the date contested here, he had not been employed by the Respondents for approximate- ly 5-1/2 months, having last lost his seniority by failing to appear. Coulter, whose periodic involvement with the Re- spondents was much briefer then Hyden's, was directly rehired as an "old" employee in preference to using the hiring hall although his two prior terms of employment ended when he, respectively , quit leaving his boat short- handed and was fired for intoxication . Virtually all the 10 former employees hired "off the bank" in preference to the referral system had records of having left their boats short-handed, and, before his rehire, Hardie had been terminated for fighting . The Respondents' willing- so For reasons to be given below, I find that although Benecke was rehired as an "old" employee on August 17, 1981, without referral from the hall, the circumstances were such as to warrant direct hire on that occasion Therefore , no violation is found in his hire ness to directly rehire certain of these employees tends to underscore the extent to which they were prepared to go to avoid using the hiring halls. I also accept Judge Johnston 's above-quoted finding that the Union did not acquiesce to the Respondents' practice of directly hiring former employees simply be- cause it did not file grievances concerning various inci- dents when SIU knew of such hires. The Union has ac- tively protested the Companies ' practices in bypassing the hall and has pursued its efforts to vindicate the refer- ral system in respective Board proceedings before Judge Johnston and here. Miller, Moore, Scott, Jackson, and Benecke The record shows that certain employees alleged in the complaints were not directly hired until serious, but unsuccessful, attempts were made to contact SIU's hiring hall. Only then were these employees hired to enable the Companies' vessels to meet their sailing schedules. Di- rectly hired employees in this category include Edward Craig Miller, Lamont Moore, Danny Scott , and Jay Jackson. Moore, Miller, and Scott were hired by the Jefferson- ville crew dispatch office on Saturday , August 15, 1981, at 8:30 a.m. in response to Captain Cannon's initial call to Supervisor Eve requesting virtually an entire new crew for M/V Sonny Ivey by that midnight.51 All but three berths were filled by transferring current employ- ees to the Ivey, in exercise of the Companies' valid and undisputed option . Moore, Miller, and Scott, new em- ployees, were directly hired only after crew dispatcher Krall had unsuccessfully tried to call the hall and after ACBL Vice President Kilroy, responding to a call from Kraal, physically went to the SIU Jeffersonville hall when it was supposed to be open, and found it closed. Scott, Benecke, and a third employee, Jamie Sumler,52 were hired directly by Krall on Monday, August 17, 1981, when, under circumstances almost identical to August 15, Krall found it necessary to call Kilroy to report five unsuccessful attempts to reach SIU's hiring hall in her efforts to crew the Frank Phipps in time for its 10:30 departure that night . Kilroy again drove to the hall and, for a second time in 2 days, found it closed during established operating hours. It was only after these ear- nest efforts to contact the hall had proved unsuccessful that Krall was authorized on August 15 and 17 to use her own resources to meet existing crewing needs and sailing schedules . As the hall was not evaded on those occasions, I find that the Respondents did not violate Section 8(a)(1), (3), and (5) of the Act by directly hiring Scott, Moore, Miller, Jackson, and Benecke.53 51 Under the Shipping Rules , the hiring hall is open on Saturdays from 8 am to noon 52 Sumler's hire was not alleged as unlawful 5a Although it as found above that it would have been unlawful to rehire Benecke a an "old" employee without referral from SIU's hall, his direct rehire on August 17, 1981, when the Union was unavailable to fur- nish employees, rendered the transaction valid. Under the circumstances applicable here , it was appropriate to directly reemploy Benecke a his "old" employee status was rendered moot AMERICAN COMMERCIAL LINES 643 Hicks, Nimon, Entwhistle, Wilson, and Goldman Hicks, Nimon, Entwhistle, and Wilson were hired by Venegas at New Orleans after she had received a call from Marine Superintendent Clark on53 Thursday, May 7, 1981, at 6 p.m.64 that five deckhands were needed im- mediately for four ITC boats. Venegas called SIU that evening at 6:10 and 7 p.m., respectively. She then con- tacted Hicks, Nimon, Entwhistle, and Wilson during the night of May 7 from job applications stored at her home, and they boarded their respective boats at Harahan at various times during the afternoon of May 8. Goldman was hired directly by Clark during the night of May 7 after Venegas reported that she could find only four of the five men requested, and he, too, joined his vessel on May 8 . In no case were any of these employees referred by SIU. The Respondents contend that they had been obliged to hire the above five employees directly because of an immediate need to crew four boats, a problem that had arisen 1 hour after the SIU hiring hall was closed for the night. These hirings were undertaken immediately as the Companies could not wait until the hall opened the next day. Token calls had been placed to the hall on the evening of May 7. The General Counsel and Union argue that the Re- spondent, in relying solely on Venegas' testimony, had not explained why the urgent need for the five deck- hands to crew four vessels had not come up until 1 hour after the hall was closed, and that, in view of the Re- spondents' failure to call as witnesses either Marine Su- perintendent Clark, Port Captain Ewing, or the vessels' captains to testify as to why three of their boats suddenly needed one additional deckhand and a fourth boat, two additional hands, a presumption is warranted that, if called to testify, they would not have supported the Companies' position. The Union argues that in trying to evade the hiring hall, Venegas had spent even more of the Respondents' time and money by bringing employee to the New Orle- ans area from their homes in Florida, Arkansas, and from other distant points to board these vessels well into the following day, while, the hiring hall early the next day might have provided crewmembers from the Harahan area,56 if requested. The Union contends that the asserted urgent need for deckhands at Harahan was further countered by the fact that Louisiana Dock Company, Inc., also an affiliate of ACBL, employs a group of employees at Harahan known as the "bull gang" which makes tow for ITC boats in that area. The availability of this service in Har- ahan would enable ITC's boats to function with less than full crews. 53 Although it was found above that it would have been unlawful to rehire Benecke as an "old " employee without referral from SIU's hall, his direct rehire on August 17, 1981, when the Union was unavailable to fur- nish employees, rendered the transaction valid Under the circumstances applicable here, it was appropriate to directly reemploy Benecke as his "old" employee status was rendered moot 54 From Mondays to Fridays, the hiring hall is open from 8 a.m to 5 p in. 55 This argument as to who the hiring hall might have provided if con- tacted, of course, is speculative as unsupported by evidence Emphasizing the costly distances traveled and other expenses incurred in connection with those hired on the night of May 7; and noting the improbability that man- agement would not learn of the need to complete the crewing of four vessels until 1 hour after the hiring hall closed for the night; the absence of any specific reasons in the record as to the need to crew those boats before the local hiring hall opened the next day, particularly as those hired did not report until well into May 8; the General Counsel and Union argue that the timing and as- serted urgency was geared to avoidance of the hall. The Respondents, in fact, did not offer specific, non- conclusionary evidence to establish why five employees would be so urgently needed to crew four boats in the Harahan area, and why that immediate requirement should have been known only 1 hour after the hiring hall had closed for the day. The asserted immediacy was pre- sented by Venegas only in conclusionary terms without underlying facts. All Venegas could describe was that Clark had told her the employes had to be hired immedi- ately. She did not know why, and, as indicated, no one who did was called to testify . It is axiomatic that man- agement controlled the scheduled movement of these vessels and had a continuing responsibility for knowing who would be on board. On May 7, the Companies might well have known of their needs an hour sooner. In finding that, in these circumstances , direct testimo- ny was necessary from Respondents' officials as to just when they learned that these boats were short-handed in relation to the sailing schedule, it is noted that, in New Orleans, Venegas, although on duty "around the clocks" to help crew the Companies' boats, hired only three em- ployees on referrals from SIU's hall in 1981. In total for that year, the Respondents obtained approximately 10 to 12 referrals from SIU hiring halls. Earlier, in 1978, without going through SIU's referral system, the Respondents hired about 500 new employees, and from January 1, 1979, through August 31, 1979, the Respondents hired between 225 to 240 new employees, also without using the hall. The above figures are stipu- lated. In the context of such large-scale historical nonuse of SIU's hiring halls, to which the Companies, with very limited exceptions, were bound, I find that it was incum- bent on the Companies, in seeking to rebut the General Counsel's prima facie case, to present through the testi- mony of their own relevant qualified officials the specific reasons for the timing and the urgency of the May 7 hires so as to justify the use of unreferred employees. Such a showing is particularly warranted inasmuch as there was no clear savings of time and money since cer- tain of these employees were hired out-of-state and brought to Harahan at some delay and expense. Hicks re- ported to his Harahan-moored vessel from Pace, Florida, while Wilson boarded his boat there on arrival from Springdale, Arkansas. It, therefore, is concluded that in hiring Hicks, Nimon, Entwhistle, Goldman, and Wilson on May 7, 1981, the Respondent unilaterally repudiated its contractuai obliga- tion to utilize SIU's exclusive hiring hall in violation of Section 8(a)(1), (3), and (5) of the Act. 644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In so finding, no reliance is placed on the SIU's argu- ment that the Companies had failed in a duty to reach the hiring hall after hours by not utilizing the toll-free telephone number linked to SIU's St. Louis, Missouri, hall and announced in the Union's letter of March 9, 1981. This toll-free line had been established by the Union to receive calls for work referrals from the Com- panies' various crew dispatching offices on Sundays, and holidays, when local hiring halls, such as at Jeffersonville and New Orleans, were closed. The hours of operation for the SIU hiring hall are set forth in the Shipping Rules and were incorporated by reference into the collective-bargaining agreement. As such, these hours are among the contractual terms estab- lishing the referral system and cannot be changed unilat- erally by either side. According to Kilroy's undisputed testimony, a proposal by SIU to establish such a toll-free number had been rejected by the Respondents during the 1977 contract negotiations and the telephone number was not put into place until the Union's March 1981 , letter unilaterally implementing same . The toll-free number in question constitutes an attempt by SIU to broaden the contractual obligation to use its referral system by in- cluding days and times never agreed to by the parties. Validation of this effort here would give SIU a benefit that it had not been able to obtain at the bargaining table.56 For like reasons, I find no merit to SIU's argument that the Respondents' crew dispatchers and other hiring personnel were compelled to attempt to contact SIU hiring hall officials at their homes or elsewhere should the need to hire occur after-hours. Although as illustrat- ed by Venegas' continued on-call status, the crewing of the Companies' boats is a 7-day-a-week, around-the-clock activity, the parties incorporated in their contract specif- ic days and daytime hours when use of the hiring hall was mandatory . In spite of the irregular hiring times, there is no evidence of any agreement concerning use of the hiring hall outside of the specified hours. Therefore, there was no obligation to resort to the hall except during its scheduled hours of operation, as set forth in the Shipping Rules incorporated in the collective-bar- gaining agreement. Accordingly, in finding the five May 7 hires to have been unlawful although done after hours, I do not ques- tion the Companies' right, in appropriate circumstances and subject to accountability, to directly hire employees when the relevant hiring halls are normally closed with- out using the toll-free St. Louis telephone number, and without tracking down union officials at their after-hours pursuits. However, the Companies, when requested by the Union, are obligated to specifically and reasonably explain their need to hire after hours in nonconclusionary terms. Absent such a standard , the hiring hall provisions could be, and, perhaps, have been, rendered meaningless by circumvention . It is the Respondents' failure to pro- vide specific, reasonable, and nonconclusionary justifica- 56 Kilroy's further testimony that, having received SIU's letter an- nouncing the toll-free number, he did not thereafter communicate its con- tents to anyone in the Respondents' employ is not germane Under appli- cable agency principles, Kilroy's knowledge as a ranking management of- ficial and statutory supervisor is imputable to his Company tion for the May 7 hires in this proceeding that material- ly contributed to the finding of violation. Kingsmill and Latham Kingsmill and Latham were hired as new employees aboard different vessels on March 27 and June 7, 1981, respectively. Neither had been referred by SIU's hiring hall. Venegas testified that Kingsmill was hired after she re- ceived a call from Clark on Friday, March 27, at 7:30 p.m. that a deckhand was needed immediately on M/V Ike D., as the deckhand who was supposed to arrive at 6 p.m. had not come in . After placing unanswered calls to the SIU New Orleans hall at 7:45 and 8 p.m., and after failing to find someone locally from her store of job ap- plications, Venegas reported her difficulty to Clark, who that night hired Kingsmill. As was the case with the May 7 hires, no witness ap- peared for the Companies to describe as of personal knowledge the need to circumvent the hall , which had closed but 2-1/2 hours before and was scheduled to reopen at 8 a.m. the next day. While Venegas related that an expected deckhand had failed to appear at 6 p.m. and had to be replaced , there is no evidence as to when the Ike D. was scheduled to leave. Therefore, noting that the referral system soon would again be open , I find that the Respondents did not meet their burden of providing a specific and reasonable expla- nation in nonconclusionary terms as to why it had been necessary to hire Kingsmill instead of using the hiring hall. A different situation is presented by Latham, whom Venegas hired on Sunday, June 7, 1981, a day when the hiring hall was and had been closed since noon of the preceding day. Venegas testified that on June 7 about 4:30 a.m., Clark had called her at home with news that a hand was needed immediately for one of the Company's vessels. After going through the motions of calling the hiring hall at 5 a.m., she contacted Latham from her ap- plications cache and he boarded the relevant boat that day. Essentially, the problem where the hours of the hall, as here, are not coextensive with the general hiring proc- ess, is a matter of achieving a balance between the right of the Companies to operate their business and to move their boats on schedule with necessary personnel on board, as against their contractual obligation to hire ex- clusively through the SIU hall, subject to limited excep- tions. One of these noted exceptions, however, is the Companies' right to hire directly when SIU cannot pro- vide "capable, competent and physically fit persons when and where they are required ... in ample time to prevent any delay of the work schedule."57 According- ly, it is contractually recognized that SIU, in operating its hiring hall during delimited days and hours, cannot delay the work schedule. In this context, what distinguishes Latham's hire from that of the five May 7 hires, or that of Kingsmill, is the corroborative effect of the general timing. The call to fill 51 Collective-bargaining agreement , art II, sec 1(a) AMERICAN COMMERCIAL LINES the job vacancy ultimately taken by Latham came very early on Sunday morning, when the hall had been closed for some time and was not scheduled to open again for more than 24 hours. Latham was hired quickly and boarded his boat that same day. There was no issue that if the Companies had called for help just a bit sooner or had waited a bit longer, they might have reached the hall. Unlike other 5 examples discussed above, Venegas' testimony concerning immediate need to hire was cor- roborated by what actually was done. In these circumstances, and in the absence of contrary evidence by the other parties, I find that while Latham's hire on June 7, 1981, was in violation of Section 8(a)(1), (3), and (5) of the Act,58 Kingsmill's hire on March 27, 1981, was in violation of the foregoing provisions of law. Nauyen Tai Tu Tu was directly hired as a new employee by Venegas on the night of Sunday, July 5, 1981. Unlike Latham, Tu did not board his vessel until the next day. Earlier that evening, Clark had informed Venegas that a man was needed on M/V W.O. Watson as soon as possible. Vene- gas explained that no current employees had been avail- able at the time and that she had not waited until the next day to call the SIU hall because she had been told that the employee would be needed the first thing in the morning. Even though the hiring hall was not open on July 5 and 6, the Respondents have not justified their asserted need to bypass the referral system to hire Tu. As with others, the Companies adduced no nonconclusionary evi- dence as to when there first was knowledge of the va- cancy and when the boat for which Tu was hired was to leave. Accordingly, there is no substantive showing as to why the Companies could not have waited until the hall did open. From the evidence, it was immaterial to Vene- gas whether the hall would be open on July 6. She did not know and never even inquired as to the normal oper- ating hours of the hiring hall. Tit's hire is distinguishable from the timing-corroborated hire of Latham in that ev- erything concerning Latham's hire including his board- ing of the vessel, occurred in the same Sunday, giving probity to the Companies' claims of urgency. As far as Venegas knew, by the time Latham reported, the hall could have been open. Accordingly, in hiring Tu without referral on July 5, 1981, I find that the Company repudiated the contractual hiring hall provision in violation of Section 8(a)(1), (3), and (5) of the Act. Foster and Olsson Venegas' description of the circumstances under which Foster was directly hired after the hall had closed on the night of July 25, 1981, was far more detailed than most of her other explanations. Foster was hired as a replace- ment for a deckhand named Forrester who originally se Nothing in this decision concerning Latham 's hire on a Sunday is intended to automatically permit hiring on Sundays without concern for the hiring hall . Each situation where the general rule that the referral system must be used is not followed must be evaluated on its own facts and merits. 645 was supposed to have boarded his boat in the New Orle- ans area on July 25, at 6:30 a.m., after arrival from his Cincinnati, Ohio home.59 Venegas, as detailed above, described how Forrester repeatedly disappointed her throughout that day, promis- ing again and again to appear, but missing two later flights she had arranged for him. In the sequence of events, it was not until well into the evening of July 25, when Forrester did not come in on the second flight, that Venegas found it necessary to replace him. The ur- gency of obtaining an immediate replacement was em- phasized by the fact that when Venegas did engage Foster by phone that night, she not only arranged his flight, but picked him up at the airport at 11 p.m. and delivered him to his boat a half-hour later. In these circumstances, although the precise sailing time does not appear in the record, Venegas did provide a valid explanation as to why, in view of Forrester's ex- pected availability, she had not sought a referral from the SIU hall, and her initiatives in immediately hiring Foster, supplemented by the expense of flying him to New Orleans and by personally driving him from the air- port to the boat late at night , corroborates the Compa- nies' claim of immediacy as to warrant not waiting for the hall to open the next day. Accordingly, I find that in hiring Foster without refer- ral from SIU's hall, there was no violation of Section 8(a)(1), (3), and (5) of the Act. Olsson, too, was hired by the Respondents on the night of July 27, 1981, as a replacement for two then- currrently employed deckhands who were supposed to transfer to M/V James E. Philpott, but who did not show up. Venegas testified that she received a call at 9:30 that night that help was needed on the Philpott. At 11 p.m. Venegas was unsuccessful in locating the two missing deckhands and in her efforts to replace them, she report- ed her difficulties to Clark who , later that night, hired Olsson. Although both Foster and Olsson were hired as re- placements after the hall had closed for the night, Ols- son's hire differs from that of Foster in that there is no showing either as to when Olsson reached his vessel or when it was scheduled to sail . In particular, there was no evidence of any special circumstance tending to corrobo- rate a need for promptness, as with Foster whom Vene- gas flew in at night, and, shortly before midnight, per- sonally delivered from airport to boat. As there was no specific and reasonable explanation, presented in nonconclusionary terms, as to why the Re- spondents could not wait until the hiring hall opened on Tuesday, July 28, to replace the missing deckhands, it is concluded that Olsson's hire on July 27, 1981, was in re- pudiation of the contractual hiring hall provisions and violative of Section 8(a)(1), (3), and (5) of the Act. sa As Forrester was a current employee on July 25, there is no issue here that the Respondents ' later use of Foster to replace him was merely the hasty covering of one unlawful hiring by another 646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Babb The parties stipulated that Gerald Lee Babb, Jr., was hired by the Companies for the first time on July 16, 1981, without having been obtained from SIU's hiring hall. As no explanation of any kind was given for his hire without use of the hall, which, in the normal course of business, the Respondents presumptively are obligated to use, I find, for the above reasons that his hire was in violation of Section 8(a)(1), (3), and (5) of the Act. 3. Respondent's posthearing motion for receipt of and deferral to a subsequently issued arbitration award Contrary to the parties' stipulation in Cases 9-CA- 16993 and 9-CA-17418 that I should be bound by Judge Johnston's findings as to the applicability of the contrac- tual hiring hall provisions to "old" employees and also by his conclusions concerning hiring hall operations and crew dispatching procedures,80 the Companies, after the close of the hearing and filing of briefs, moved that the record in these cases be reopened to receive as newly discovered evidence a supplementary arbitration award, issued July 6, 1983, subsequent to the close of this hear- ing. The Respondents further move that I defer to this award, which, in relevant respects, is inconsistent with Judge Johnston's findings. The Companies' briefed argu- ments in support of their motion were opposed in briefs filed by the General Counsel and SIU. In agreement with Judge Johnston, I have found above that the contractual hiring hall provisions are "clear and unambiguous on their face," and that the Re- spondents are required to secure all of their unit employ- ees through SIU's exclusive referral system except: (1) when the Union is unable or unavailable to furnish com- petent personnel, and (2) where regularly employed em- ployees, without break in current seniority, are available for direct assignment to fill vacancies. As "old" employ- ees do not come within these limited exceptions, like Judge Johnston, I have found above that the Respond- ents violated the Act by pursuing a policy of directly hiring them in avoidance of the referral system. In the stipulated areas, it is on the issue of the Compa- nies' obligation to use the hall when "old" employees are available that my findings principally differ from those in the supplementary award, as I have upheld the Respond- ents' position that they are not obligated to attempt to use SIU's hiring halls when the halls are scheduled to be closed-i.e., by using SIU's toll-free telephone number in St. Louis to make requests for weekend and holiday re- ferrals;,by calling union officials after hours at home, or elsewhere. As found above, the hiring halls' operating hours are incorporated into the contract and cannot be unilaterally expanded.61 60 The parties, as noted, also stipulated that I accept Judge Johnston's findings as to the appropriate bargaining units in these matters 61 Unlike the Companies, I also have held above that the Respondents are obliged, when hiring while the halls are closed, upon explain to the Union in specific terms why it had been necessary to hire when they did, rather than to await the availability of the halls I find nothing in the Board's recent decisions in United Technologies Corp.,62 and Olin Corp.,63 that would re- quire deferral to arbitration in this instance. In their dis- senting opinion in General American Transportation Corp.,64 cited with approval by the Board majority in United Technology Corp.,65 former Members Penello and Walther observed that "the Board ... has refused to defer [to arbitration] . . . where the respondent's con- duct constitutes a rejection of the principles of collective bargaining. . . ." The large scale nonuse of SIU's hiring halls, in my view, constitutes a repudiation of the contractual hiring hall provisions and a rejection of the bargaining princi- ple. From stipulated facts, it was found above that in 1978, 500 new employees were hired by the Companies without use of SIU's referral system. In the first 8 months of 1979, this figure approximated 225 to 240. In 1981, by contrast, only 10 to 12 new employees were ob- tained from the hall. More specifically, although Vene- gas was available 24 hours a day, 7 days a week, to help staff the Companies' boats as their only crew dispatcher in New Orleans, in 1981 he hired only three employees on referrals from SIU. This figure was not surprising, as Venegas did not know when the hall was open. She de- scribed her few perfunctory efforts to reach the hall late at night or in the very early morning hours, before pur- suing her principle practice of hiring directly. Basic hiring hall use, contrary to the Companies' argu- ments, is not a subtle or complex concept. A contractual- ly obligated employer either uses the hall as required, or does not. Here, the Companies plainly did not. Their present stated interest in arbitrating a subgroup such as 'old" employees is hardly coextensive with the scope of what is involved, which is large scale rejection of the contractual referral system. This subgroup cannot be re- alistically extricated from the overall problem. Because of this scope limitation, under the new deferral standards in Olin Corp., supra,66 for determining whether the arbi- trator had considered the unfair labor practice, the con- tractual issue here is not factually parallel to the unfair labor practice issue. The Respondents joined the other parties in stipulating that the prior proceeding before Judge Johnston, and, thus, the Board, should provide the forum for litigation of the stated issues. The parties' decision to so stipulate was informed and deliberate, having been made with knowledge of the content of the record they had made before Judge Johnston and, also, as will be discussed, in anticipation of and in preference to the forthcoming sup- plementary arbitration proceeding. Stipulations made are binding on the participating parties and on the adminis- 82 268 NLRB 557 (1984) 63 268 NLRB 573 (1984) 64 228 NLRB 808, 817 (1977) 65 Supra at 560. 66 In Olin Corp., supra at 574, in determining whether to defer to arbi- tration, the Board would find that "an arbitrator has adequately consid- ered the unfair labor practice if (1) the contractual issue is factually paral- lel to the unfair labor practices issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice case." AMERICAN COMMERCIAL LINES trative law judge.67 In Ducane Heating Corp.,68 the ad- ministrative law judge in her Board-approved decision, noted that were it not for the parties' stipulation, she would have found a violation of the Act based on the record. The significance of the parties' stipulation here is not reduced by the Companies' reference to the supplementa- ry award as "newly-discovered evidence," which, at most, is a qualified description as it is part of a proceed- ing that had been going on for years . The supplementary award follows an original arbitration award, based on a grievance filed in October 1979 protesting the Compa- nies' failure to use the hall. In the original award, issued December 2, 1980, and referred to in Amercian Commer- cial Lines, supra at 1128-1129 a somewhat differently constituted arbitration panel found that the Respondents had breached the hiring hall provisions by directly hiring 59 employees. The arbitrators retained jurisdiction in the event the parties were unable to agree upon remedy. The issue then before the panel at the supplementary hearing related to the appropriate remedy for the Companies' failure to use SIU's hiring hall in obtaining 59 new hires from October 26 to December 30, 1979, when the con- tract expired. When the parties stipulated that Judge Johnston was to be the forum for the issues noted, they had been unable to fashion a remedy commensurate with the origi- nal award for approximately 15 months and the Union, since April 23, 1981, had had an outstanding written re- quest that the arbitration panel assert its jurisdiction to award an appropriate remedy. Therefore, when the par- ties stipulated in the hearing before me, they knew that the supplementary arbitration proceeding was a pending reality to which they could have deferred, In view of the finding by the original arbitration panel that the Re- spondents had contravened the contractual hiring hall clause in the hire of 59 employees within a period of 2 months, it is not difficult to understand why the Re- spondents had opted to rely on the record before Judge Johnston. Against this background, the companies' subse- quent advocacy of the supplementary award in disregard of their stipulation at the hearing represents the embrace- ment of a given result rather than of the arbitral proc- ess.69 Finally, contrary to the third deferral standard in Spielberg Mfg. Co.,70 reaffirmed in Olin Corp., supra, and United Technologies, supra, the supplementary award, in certain respects, is repugnant to the Act. Contrary to Gullet Gin Co. Y. NLRB,71 the supplementary award 67 Unimedia Corp., 235 NLRB 1561, 1564, fn 9 (1978); Kroger Co, 211 NLRB 363, 364 (1974). se 254 NLRB 112, 120 (1981) 69 Cases cited by the Respondents where arbitration awards issued after the close of Board hearing were received as newly discovered evi- dence, such as Graphic Communications Local 271 (U.S Playing Cards), 204 NLRB 418 fn. 5 (1973), McLean Trucking Co, 202 NLRB 710 (1973), and The Kansas City Star Co., 236 NLRB 866 (1978), are inapposite as, unlike the present matter, there had been no stipulation in those matters to litigate outstanding issues before the Board as the forum of choice. 70 112 NLRB 1080. 1082 (1985) In Spielberg, the Board held that it would defer to an arbitrator's award if- ( 1) the proceedings were fair and regular, (2) the parties had agreed to be bound , and (3) the award was not clearly repugnant to the purposes and policies of the Act. 71 340 U.S 361. 364 (1951). 647 specified that any unemployment compensation received "would be used as an offset to any monetary award (backpay)." Also, no provision was made by the arbitra- tion panel for payment of interest on backpay . Not less at odds with Board policy is the "make whole" remedy in the supplementary award, which arbitrarily cut off en- titlement for lost earnings after the contract expiration date, December 30, 1979. Under Atlas Tack Corp.,72 such employees would be made whole for all losses caused by the Respondents' unfair labor practices, which would continue in the instant case beyond the above contract expiration date, as the obligation to use the exclusive re- ferral system survives the contract. For the above reasons, the Respondents' motion to reopen the record for purposes of receiving and defer- ring to the supplementary arbitration award hereby is cited.7 a 4. Summary of findings in Cases 9-CA-16993 and 9-CA-17418 For the above reasons, it is found that the Respondent repudiated the hiring hall provisions of the collective- bargaining agreement in violation of Section 8(a)(1), (3), and (5) of the Act by directly hiring the following indi- viduals on the above-designated dates as "old" or new er..ployees, respectively, as shown below: "Old" employees74 James F. Hyden Robert E. Orwick Ronald H. Coulter Robert E. Whipple Eddie L. Brandenburg Howard D . Hardie Samuel Carl Isaacs New employees Harold Kingsmill Bobby Hicks Nauyen Tai Tu J. N. Nimon Gerald Lee Babb Thomas Entwhistle Marty Olsson Johnny Goldman Jim Wilson D. SIU's Refusal to Furnish Requested Hiring Hall Records-Case 9-CB-4736 1. The facts In a cross-complaint, the General Counsel alleges that SIU had failed to bargain in violation of Section 8(b)(3) of the Act and in breach of its obligations under an earli- er informal settlement agreement in this matter, since set aside, by failing to comply with the Companies'75 re- 72 226 NLRB 222 (1976), enfd 559 F 2d 120 ( 1st Cir. 1977) (unpub- lished). 7a To preserve the record , the supplementary award and moving papers, the parties' briefs and the Respondents' reply brief are included in the rejected exhibit file 74 It was found above that although Mike Thomas Benecke was hired on August 17, 1981, by the Companies as an "old" employee, no viola- tion occurred as the Union, at that time, was unavailable to furnish em- ployees This rendered the circumstances of his hire moot 75 Although the charge in this matter was filed by ABL, ITC, and SOTC, affiliated companies of ACBL, consistent with the above findings, ACBL and ITC are the only two remaining cognizable Charging Parties 648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD peated demands for information relating to the operation of its hiring halls . Such data, it is argued , was necessary to enable the Companies to perform their collective-bar- gaining functions. The General Counsel and Companies further contend that SIU, by failing to furnish the Companies with the requested hiring hall information after having promised to do so in the settlement agreement, violated the terms of the agreement, thereby justifying the Regional Direc- tor in vacating the agreement. SIU, in turn, denies that the requested information was necessary and relevant to enable the Companies to per- form their collective-bargaining functions with respect to either contract negotiations or administration , and argues that it was not required to provide the requested data as the Companies had unlawfully avoided using SIU's ex- clusive hiring hall to secure its new employees, rendering the materials unnecessary and irrelevant . The Union fur- ther argues that there was no need to furnish the infor- mation sought as the language of the Settlement Agree- ment related the data to use only during contract negoti- ations, which, the Union contends, were no longer in progress because the Companies had not bargained in good faith with SIU.76 In the aforesaid settlement agreement, approved by the Regional Director for Region 9 on about April 15, 1981, SIU had agreed to the following: WE WILL furnish information requested by American Commercial Barge Lines, and its affili- ated companies relating to the operation of the hiring halls which is relevant and necessary to enable American Commercial Barge Lines to per- form their collective bargaining function during the course of contract negotiations. WE WILL NOT engage in a refusal to furnish to American Commercial Barge Lines and its affiliated companies such information relevant and necessary to the bargaining process. WE WILL NOT engage in any like conduct in derogation of our statutory duty to bargain.77 76 The parties' last negotiating session for a new contract had been in April 1980. 77 The originally settled controversy in Case 9-CA-4736 arose during the preceding year. Then, in response to a September 15, 1980, telegram from Irwin H Cutler, Jr, SIU's counsel , observing that SIU had re- ceived no job orders from the Companies since the aforesaid 1980 strike had ended on September 12, and that the Union expected the Companies to immediately begin compliance with their obligation to use the hiring halls as required in a then outstanding 100) injunction stipulation , Kilroy, about September 19, called Cutler During their conversation , which cov- ered a variety of matters, Kilroy reassured Cutler that the Company would begin to use the SIU hiring hall pursuant to the 100) settlement agreement He also informed Cutler that the Companies wanted to see the hiring hall records, daily activity reports, registration cards, employ- ment cards, etc , so that he could be assured that the SIU port agents were properly registering and shipping individuals in accordance with the Shipping Rules . Cutler promised to pass the matter on to the Union and to report back to Kilroy In Cutler's reply letter of September 22, 1980, he advised Kilroy that he had taken the matter up with the Union, as promised and that the Union would not permit company representa- tives to inspect the requested records "because we do not believe that the company is entitled to that information for any legitimate reason." In a Regional Office letter, dated April 9, 1981, to Robert W. Kilroy, ACBL vice president for labor rela- tions, urging the Companies to join in the settlement agreement, the Board agent observed that the wording of the above-quoted settlement language was almost identical to that contained in the complaint . The letter expressed the Regional Office's view that by signing this agreement, SIU had agreed to furnish information re- garding the operations of its hiring halls as Kilroy had requested. The letter continued "This agreement would require them to furnish such information during the bar- gaining process with the only condition being that such be relevant and necessary." In Kilroy's April 10 reply to the Board agent, he noted that the Companies had entered into the above set- tlement agreement on the Region 's representation that the Companies would be allowed to examine any rele- vant and material hiring hall records to enable them to perform their collective-bargaining functions and con- tract negotiations, as well as administration, and also to ensure that SIU agents were properly administering the hiring hall shipping rules.78 On February 24, 1982, because of SIU's later conduct, described below, the Regional Director issued both an order withdrawing approval of the settlement agreement and the present complaint . Events leading to this action follow. On April 7, 1981, Kilroy wrote to Michael G. Worley, then SIU port agent at Jeffersonville, Indiana, noting that the Company had employed Steve Hibbs on April 3 to replace Gary Van Winkle who had been referred by the Union, but refused employment by the Company as Van Winkle had been terminated earlier and was not considered eligible to be shipped on company vessels. In his letter, Rilroy requested that he be advised of Van Winkle's seniority rating, at which SIU hiring hall he was registered, Van Winkle's date of registration and the time and place he was dispatched to the MN Henry D. Kilroy also requested the same information regarding employee Bobby Rose, who had been successfully shipped by SIU to the M/V Sonny Ivey on April 4. SIU attorney Cutler replied in writing to Kilroy on April 17, acknowledging receipt of Kilroy's April 7 cor- respondence requesting information about Van Winkle and Rose. Cutler's response furnished the requested in- formation concerning Rose, but refused the information concerning Van Winkle as the Companies had "refused to employ him for reasons unrelated to his seniority rating, the hiring hall at which he was registered, the date of his registration, and the time and place he was dispatched to the Henry D." The Companies were in- formed that if they wished to pursue the matter, they should advise the Union of the specific reasons why the requested information was relevant or necessary before further consideration would be given to their request. In his April 24 reply to Cutler, Kilroy wrote that it was his understanding from the Regional Office that, under the terms of the settlement agreement , the Union 78 As noted, the Shipping Rules govern administration of SIU's hiring halls AMERICAN COMMERCIAL LINES was to provide all requested information on individuals registered at SIU hiring halls and to allow Companies' representatives to to examine "any relevant and material hiring hall records to enable the Company to perform its collective bargaining functions and contract negotiations, as well as administration, and also to ensure that agents of the SIU were properly administering the hiring hall shipping rules." Kilroy, citing the settlement, also re- quested an opportunity to examine the daily activity report of the Jeffersonville hiring hall, which he identi- fied as the same report as submitted by the local offices to SIU headquarters that lists those registered at the hall and records jobs ordered and men shipped each day. Kilroy noted that if there was no response to this request to inspect the records at the Jeffersonville office by the close of business on May 1, 1981, the Companies would assume that the Union was refusing to allow such an ex- amination and would move the Regional Office to re- issue the complaint in Case 9-CB-4736.79 Cutler, in an April 28 letter, affirmed the Union's in- tention to discharge all obligations imposed by the settle- ment agreement and by law. However , Cutler noted that Kilroy's request had not been as to which day's daily ac- tivity report he wished to inspect, that the Companies had no liability for the method by which persons were shipped to companies other than Kilroy 's and that infor- mation concerning persons shipped to other companies could not be relevant or necessary to ACBL and ITC in fulfilling their collective-bargaining obligations. The Union offered to provide , at reasonable times and places and upon appropriate appointment, all information re- quested by the Companies to show that those of their employees who had been shipped by the hiring hall were properly referred in accordance with the Shipping Rules and with the law. As an example of compliance, Cutler reminded Kilroy that he had been provided with all in- formation he had requested concerning Rose, who had been referred and hired. Kilroy testified that after receiving Cutler's above April 28 letter, he went to the SIU's Jeffersonville hiring hall on May 1, accompanied by attorney Vance D. Miller.80 There, Kilroy asked the office secretary, Linda Mutchler, to provide him with the daily activity reports for 90 days prior to the shipment of Bobby Rose and Gary Van Winkle. Mutchler replied that she would have to first speak to Worley, who then was in attorney Cut- ler's office. She offered to call Cutler's office. While Worley waited, Mutchler placed three telephone calls 15 79 Daily activity reports are completed for each day the SIU hiring halls are open. These multipage reports list each individual who is regis- tered and/or shipped that day and contains various other information about the individuals named in the report , including their social security numbers, union book numbers, seniority, rating and highest ratings-i.e. whether deckhand, head deckhand , or chief engineer, as opposed to as- sistant engineer, whether a graduate of the Harry Lundburg School of Seamanship, a special school where seamen are trained, and whether the employee has lifeboat certification These reports show whether the work applicant has a Seafarers' welfare plan clinic card, has completed a fire- fighting course, and holds a United States passport These reports further show the list of job vacancies called into a given hiring hall by contract- ing employers on the day in question , and indicate the vessel from which the request for personnel was received 80 Vance D Miller appeared with David W Miller as cocounsel for the Companies here and before Judge Johnston 649 minutes apart during which , on each occasion, she spoke to someone whom she addressed as "Mr . Cutler." After each call, she told Kilroy that Worley was in conference and could not be disturbed. After the third such report, Mutchler asked if Kilroy wanted to make a later appoint- ment to look at the hiring hall records . Kilroy replied that he would be back at 10 a.m. on Monday, May 4. Kilroy, however, did not return to the SIU hall as he received a telegram , dated May 1, from Worley cancel- ing the May 4 meeting . In his telegram, Worley ex- plained that he had been subpoenaed to attend a May 4 hearing in Louisville. e 1 On May 4, Kilroy wrote to Emil C. Farkas, the Board's Regional Director for Region 9, enclosing copies of all the above-described correspondence sent to and re- ceived from the Union since his April 7 letter to Worley. Kilroy reiterated his understanding that the Region's po- sition was that if the Companies were required to use the SIU hiring hall, they were entitled to examine any rele- vant and material hiring hall records to see that the Union was complying with the Shipping Rules. Kilroy described his May 1 visit to the SIU hall , complaining that he had been unable either to examine the records or to speak to Worley in the course of three attempted tele- phone calls . Worley's May 1 telegram canceling Kilroy's proposed May 4 return visit was among the correspond- ence attached . Kilroy wrote that it had not been neces- sary for Worley to be present when Companies' repre- sentatives inspected the daily activity sheets as those documents spoke for themselves and required no inter- pretation . Declaring that the Union had no intention of complying with the settlement agreement, Kilroy asked the Regional Director to review the settlement and re- issue the complaint in Case 9-CB-4736. Kilroy next wrote to Regional Director Farkas on June 19, where he expressed disappointment at not having received an answer to his May 4 letter in which he had outlined problems his Companies had been having in obtaining compliance with the settlement agreement concerning access to shipping records at vari- ous SIU halls. He repeated that if the Companies were required to use the hiring halls, they were entitled to see the records. In this letter, Kilroy expanded the scope of the Companies' demand, also asking, for the first time, to examine computer printouts compiled from the daily ac- tivity reports, registration cards, telephone logs, and clinic card examination records at the Union' halls in Jef- fersonville, Paducah, St. Louis, and New Orleans.82 He again noted that as the Union was not complying with the terms of the settlement, the complaint should be re- issued. Regional Office Compliance Supervisor William Molony sent a mailgram , dated June 23, to SIU attorney Cutler, with a copy to Kilroy, noting the Employers' complaints that the Union had not complied with the terms of the earlier informal settlement agreement by not furnishing information relating to the operation of its 81 On May 4, Worley was scheduled to appear in the hearing conduct- ed by Judge Johnston 82 All previous requests had related to records only at the Jefferson- ville hiring hall. 650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hiring halls "relevant and necessary to enable employer to perform collective bargaining function during course of contract negotiations." SIU was reminded that the Companies specifically had been denied reports, comput- er printouts, registration cards, telephone logs, clinic card exam, and records at Jeffersonville, Paducah, St. Louis, and New Orleans , and, that absent immediate compliance with the settlement , the Companies were re- questing that it be set aside and complaint reissued. Molony asked the Union to advise by the close of busi- ness on June 29 what steps if any it had taken to comply. Cutler replied to Molony by a lengthy letter of June 26, to which he attached copies of the following above- described prior correspondence: Kilroy's April 7 letter to Worley; Cutler's April 17 reply to Kilroy; Kilroy's April 24 letter to Cutler; and Cutler's April 28 response to Kilroy. In his June 26 letter, Cutler began by emphasizing Mo- lony's stated inability to provide him with details as to dates when the Employers claimed that they had re- quested information from the Union or the persons from whom those requests were made.83 Molony's attention was called to Cutler's attached April 17 letter where the Union had provided the Com- panies with the requested information concerning Bobby Rose, but had declined to furnish same concerning Gary Van Winkle, as Van Winkle had not been hired by the Company for reasons unrelated to the operation of the hiring hall. Cutler noted that Kilroy, instead of providing reasons as to why the information concerning Van Winkle was relevant or necessary, by his attached April 24 letter, had asked when it would be convenient for him to inspect the "Daily Activity Reports" of the Jefferson- ville hiring hall. Cutler had pointed out in his also pro- vided April 28 letter that although Kilroy's request had not been clear, the Union offered to provide, "upon an appropriate appointment," information to show that those Companies' employees who had been shipped by the hiring hall were properly referred under the shipping rules and in accordance with the law. Cutler noted that Kilroy had not made such an appointment but, with a companion, had appeared unannounced at the Jefferson- ville office on or about April 30, 1981, asking that the office secretary provide the hiring hall records for their inspection. Cutler summarized the events of that day when Worley had not been available to authorize Kil- roy's inspection of the records, essentially as described above. He noted that the telegram later had been sent to Kilroy advising that his proposal to return on May 4 at 10 a.m. was not convenient because, as Kilroy well knew, a hearing on "massive unfair labor practice com- plaints against ACBL" was scheduled for that same day and that Worley's presence was necessary there. Kilroy did not make an appointment for a more convenient time as had been suggested. Finally, Cutler observed that the remedial notice of the settlement agreement seemed to distinguish between 93 Cutler's point , accurately taken , was that many of the documents re- ferred to in Molony's June 23 mailgram to SIU had not been previously requested of the Union by the Companies , which, until then, had nar- rowed their requests both as to scope of what it wanted to see, and as to locations affected the Union's obligation to provide information necessary for contract negotiations and information necessary for "the bargaining process." In the Union's view, the duty to furnish information for the former purpose was more certain than for the latter. Cutler noted that the Compa- nies were not then engaged in contract negotiations with the Union and, because of the Company's numerous unfair labor practices as found by Judge Johnston, which included refusals to bargain, no good -faith negotiations were or could be possible until the unfair labor practices had been fully remedied. Cutler concluded as follows: In addition, as numerous complaints issued by Regional Director Farkas show, the Company has repeatedly refused to honor its obligation to use the hiring hall. It is ironic, indeed, that the same em- ployer who refuses to use the hiring hall, and whose refusal to do so has been alleged by the Re- gional Director to be a violation of the Act, can now come to (the regional office) and complain be- cause the Union has not given it information. The Company's motive is clear, and it is not to engage in good faith negotiations or good faith administration of a collective bargaining relationship. Be that as it may, the fact remains that the em- ployer, to our knowledge, has not made a proper request for information it is entitled to under the settlement agreement in the above case... . The first request for information of the scope referred to in Kilroy's June 19 letter to the Regional Director that was made directly to the Union was in Kilroy's letter of July 6 to Cutler, which, after referring to sever- al items of business, concluded: Finally, we are again renewing our request to in- spect hiring hall records at Jeffersonville, Paducah, New Orleans and St. Louis, including, but not limit- ed to, all registration cards, daily activity sheets, job orders, clinic cards, job calls, and SIU headquarters' computer print-outs listing registrants at all loca- tions. Please advise when we may see these records to verify that Port Agents are complying with the shipping rules. Cutler's July 15 reply to Kilroy's above letter, in rele- vant part, was: Your letter indicates that you are "renewing" your request; however, your previous requests of April 7 and 24, 1981 were limited to the "Daily Ac- tivity Report" of the Jeffersonville hiring hall and information as to specific employees who were shipped to your Company from the Jeffersonville hiring hall. You request a broad range of information from four hiring halls without limit as to time . Your re- quest would include information about persons shipped to Companies other than yours. The unit for collective bargaining includes, of course, em- ployees of only ACL subsidiaries and not of other Companies. As we had stated in the past, you have AMERICAN COMMERCIAL LINES no liability for the method that those persons are shipped and information regarding them cannot be relevant or necessary to your Companies in fulfill- ing their collective bargaining functions , nor can it be necessary and relevant to verify that the Union's port agents are complying with the Shipping Rules when employees are shipped to your Company. It was our understanding, when the Settlement Agreement in Case 9-CB-4736 was entered into, that you would be entitled only to that information which would verify that employees shipped to your companies were shipped according to the Shipping Rules and the law. The Union has remained willing to allow inspection of records which would reflect that the hiring halls were operated properly with respect to Inland Tugs Co. and any other ACBL af- filiates. The Settlement Agreement certainly does not contemplate a "fishing expedition" at the whim of the Company, but instead, contemplates the pro- vision of information which is relevant and neces- sary so that the Company may carry out its collec- tive bargaining function. Cutler concluded his letter essentially by repeating the above-quoted paragraph in his letter to Compliance Su- pervisor Molony to the effect that the settlement agree- ment distinguished between furnishing information neces- sary to the Companies for contract negotiations and in- formation necessary for the bargaining process; that the Companies were not then engaged in contract negotia- tions; and that the Companies' conduct, illustrated by the various refusal-to-bargain complaints issued against them by the Regional Director, preclude meaningful contract negotiations. By the precise language of the settlement agreement, the Union had agreed to furnish information necessary for contract negotiations. Cutler reiterated that the Union would , upon proper request and appointment, make available for inspection information necessary to determine whether the hiring halls were operated prop- erly on a day when Kilroy's Companies sought employ- ees therefrom. He again denied that Kilroy's Companies were entitled to information as to days on which ACBL and ITC did not seek employees from the hiring halls, nor concerning individuals who were shipped to other companies under contract to use SIU's hiring halls. Kilroy explained the Companies ' need for the various requested hiring hall documents in a July 17 letter to Compliance Supervisor Molony, to which he attached Cutler's above-described letter of July 15, a presettle- ment January 1981 exchange of correspondence between himself and Worley reflecting company difficulties with the hiring hall, and blank copies of various forms used by SIU in operating its referral system . Kilroy's descrip- tion of the various requested hiring hall documents and his reasons for wanting to see them , as set forth in his July 17 letter, were as follows: Daily Activity Report [T]his document lists by day those individuals registered at SIU hiring halls. These documents are submitted to SIU headquarters and are the source 651 documents for the computer print-out showing reg- istrants at all ports .. . Under the Shipping Rules, an individual, when registering, is given a seniority rating depending on work experience and/or . . . a preference based on union membership or attendance at an SIU school. This registration under the rules . . . is good for a period of 90 days, provided it is validated monthly by the SIU port agent. Only those individuals with validated shipping cards are eligible to be shipped. Only by viewing the daily activity reports for the previous 90 days, on any particular day, can we de- termine if an individual was properly shipped and whether or not his registration card was validated. This report also shows what jobs were ordered, by what employer and who was shipped and on what basis. Only by viewing the reports for the pre- vious 90 days can we determine whether Bobby Rose was properly registered and shipped on April 4, 1981 from the Jeffersonville hall to the M/V Sonny Ivey. If you will note the above mentioned computer printout does not list Bobby Rose. Registration Cards [T]hese cards . . . are sequentially numbered and this number shows up on the daily activity sheet. This is a duplicate ticket document-one half re- tained by the hall , the other half given to the regis- trant. Only by viewing these cards in sequence can we verify that all registrants were placed on the daily activity sheet and properly registered , there- fore being able to verify if Rose was properly regis- tered and shipped, as claimed by the SIU. Clinic Cards Individuals have been shipped from Paducah and Jeffersonville without valid clinic cards to our ves- sels. The rules state no one shall be registered or shipped without this card . Although the rule has only recently been enforced at Jeffersonville, we are entitled to verify with the individual employee and the daily activity report whether or not the em- ployee possesses this card and is physically fit. Without this card the registration is not valid. Job Orders/Job Calls Under the rules job calls are to be at 10:00 a.m., 11:00 a.m. and 3 :00 p.m. Job orders show when the job was received, by whom taken and at what time. Job calls show when the job was announced and by whom claimed on what seniority or preference. These will verify proper posting and claiming of jobs by identifying the registrants claiming the job and verification of the registration on the daily ac- tivity reports and registration cards. On the Beach Report This is the computer print-out sent from SIU headquarters to hiring halls. This will verify wheth- er a discrepancy exists between registration records 652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at the hiring halls and information turned into head- quarters. The SIU has taken the position . . . that other lists of registrants exist and this must be estab- lished and verified as no other lists are provided for under the shipping rules. In his above July 17 letter to Molony, Kilroy again firmly restated his view that SIU was not going to comply with the settlement agreement and strongly pressed the Regional Office to set aside the settlement agreement and reissue complaint.84 On August 25, 1981, Kilroy wrote to Worley advising that he personally would visit SIU's Jeffersonville office on Thursday, August 27, 1981, at 10 a.m. "for the pur- pose of inspecting all hiring hall records maintained at the hiring hall, including, but not limited to, the Daily Activity Reports, registration cards, clinic cards, job calls, job orders , and any print-outs generated by the SIU headquarters office . . . called On the Beach Re- ports." Enclosed with Kilroy's letter to Worley was an- other letter of that date from Kilroy to Richard Osborne, management trustee for the hiring hall trust fund, con- firming a phone conversation with him that the Compa- nies would be granted access to the records requested. Shortly after sending his above letter of August 25, Kilroy, during a telephone conversation with Worley, re- peated his desire to visit the hall after Labor Day to see the records after Labor Day. He told Worley that he was still interested in all previously described records re- lating to the registration and shipping of individuals and in the daily activity reports for the 90 days prior to the shipment of Van Winkle and Rose. Although Worley agreed to arrange for Kilroy to come to the hiring hall and promised to report back to him with the details, Kilroy was not called but, instead , received from Worley the following telegram, dated September 3: At the present time, we will not furnish you the information which you requested in your letter of August 25. Therefore, I am canceling your appoint- ment to inspect hiring hall records on September 4. Please direct any future requests for information or inspection of records at hiring halls to me (or) to Irwin Cutler. Kilroy also did not receive an answer to his August 28 letter to David Heindel, SIU patrolman in New Orle- ans.85 In that letter, Kilroy had asked to be advised why a certain employee, discharged after being referred from the hiring hall, had been referred where the original job request had not been processed via the Shipping Rules- specified job call procedure. Kilroy also requested a copy of the inland daily activity report for August 27, 1981, in connection with the referral of another employ- ee who had been accepted by the Companies as it was the Employers' understanding that employee had Class "B" (lower) seniority and had been registered at the hall 84 No such explication of the Companies ' need to view the hiring hall records as was presented to the Regional Office in Kilroy's above July 17 letter was given to the Union. 85 As noted above , the duties of an SIU partolman are analogous to those of the business agent of a local union only the day before he was shipped. The employee's reg- istration card also was requested as was permission for crew dispatcher Venegas, on behalf of the Companies in New Orleans, to inspect the inland daily activity reports for the preceding 90 days. In his letter, Kilroy explained that the request was being made to ensure that agents of SIU are fully compliant with the Shipping Rules. The last item in this series was a letter, dated February 8, 1982, to the Regional Office, in which Cutler, at the Region's request, stated, in writing, the terms under which SIU would be willing to settle Case 9-CB-4736. Cutler presented the Union's position as follows: The Union is not willing to provide to the em- ployer access to all hiring hall records at the ports from which the employer has normally secured re- ferrals. The Union is not willing to grant the em- ployer access to any records except those pertaining to the referral of employees to Inland Tugs Compa- ny or other affiliates of American Commercial Barge Lines Company. The Union is ready and willing to provide information to the employer which will demonstrate that the hiring hall is oper- ated lawfully at all times when the hiring hall ships employees to the employer, but the Union will not permit the employer to examine hiring hall records relative to the shipping of employees to other com- panies. At no time did SIU permit Companies' representatives to examine any records or documents described in Kil- roy's testimony. The Union called no witnesses to testify. 2. Discussion and conclusions Hospital Employees (Sinai Hospital),86 Administrative Law Judge Silberman noted that: Among the obligations imposed upon a labor or- ganization by Section 8(b)(3) and (d) is to give the employer whose employees it represents all infor- mation which it possesses , requested by the employ- er, that is relevant and reasonably necessary in order for the employer to discharge his collective bargaining functions, which includes information re- lating to the administration of the collective bar- gaining agreement as well as to its negotiation." This duty on the part of a labor organization to pro- vide information is the reciprocal of a similar obli- gation on the part of the employer . "[T]he right to the information arises out of `need" for it shown by the circumstances of the particular situation. While it is often stated that the information sought must be "relevant," more than abstract relevance is required. The fact that the information will be merely "help- 86 248 NLRB 631, 646, enfd. 673 F 2d 1314 (T) (4th Cir 1981) Al- though the Board, in finding that the Respondent in Sinai Hospital, supra, had violated Section 8(b)(3) of the Act by not providing certain request- ed health and welfare fund records, reached a result contrary to that of the administrative law judge, the judge' s restatement of the basic rule concerning a union's bargaining obligation to furnish requested data as here quoted, is correct AMERICAN COMMERCIAL LINES 653 ful" is not enough.' 18 The test of relevancy is .. . "the probability that the desired information rele- vant, and that it would be of use . . . in carrying out . . . statutory duties and responsibilities." 19 " See Local 13, Detroit Newspaper Printing and Graphic Com- munications Union, International Printing and Graphic Communica- tions Union. AFL-CIO (The Oakland Press Co.), 233 NLRs 994 (1977) [Enfd 598 F 2d 267 (D.C Cir 1979)] 1a The American Oil Company, a Texas Corporation, 164 NLRB 29, 33 (1967). 19 NLRB Y Acme Industrial Co., 385 U.S 432, 437 (1967) The Board further has ruled that an employer contrac- tually bound to a work referral system, whether or not actually engaged in contract negotiations, may properly request hiring hall records as necessary and relevant con- cerning employees available for referral through the hall, although such employees were not referred to or em- ployed by the company seeking the information. 97 The Board has held that in order for an employer to formu- late meaningful proposals during pending or future con- tract negotiations concerning job referrals and employee compensation, it can be essential that the employer know how the union's exclusive referral system operates and that it have information as to the general availability of workers. The Board, in effect, has held in this regard that a union's overall referral practices in the operation of its exclusive hall can have an impact on the quality, effectiveness, and ultimate cost of bargaining unit person- nel who ultimately are employed by companies obliged to use its referral system.88 A Union's duty to respond to a request for necessary and relevant data is not suspended by the pendency of collateral litigation that tests the parties' bargaining obli- gation.89 As public rights are at issue under the Act, a Union's defense of "unclean hands" on the part of the employer who seeks necessary and relevant data, estop neither a company from filing a charge against a union that violates the Act by withholding such information, nor the Board from vindicating such public rights inher- ent in the Act where infringed.90 Applying these principles, it is noted that although SIU argues that by the terms of the former settlement agreement it is obligated to furnish only information nec- essary and relevant to enable ACBL and its affiliated companies "to perform their collective bargaining func- tion during the course of contract negotiations," which negotiations SIU contends have been rendered inoper- ative since April 1980 by the Companies' separately charged unlawful conduct, this position is erroneous both in fact and in law. First, the Union's obligation to furnish 97 Oakland Press, 233 NLRB at 996, Asbestos Workers Local 80 (West Virginia Master Insulators Assn.), 248 NLRB 143, 144 (1980) 88 Ibid Also see Electrical Workers, Local 1186 (Pacific Electrical), 264 NLRB 712, 722 (1982), where an employer's right to inspect the Union's hiring hall records under an exclusive referral system to determine com- pliance with requirements of contract and law was specifically recog- nized The allegation concerning their nonproduction was dismissed on other grounds 89 St. Elizabeth Community Hospital, 237 NLRB 849, 850 (1978); Mont- gomery Ward Co, 228 NLRB 1330, 1331 (1977) 90 See Hotel & Restaurant Employees Local 355 (Doral Beach Hotel), 245 NLRB 774, 776 (1979), and cases cited necessary and relevant data concerning hiring hall oper- ations does not arise merely from its interpretation of the settlement agreement but, as noted by Judge Silberman in the above-quoted passage, from its general bargaining obligation under Section 8(d) of the Act. This duty has been construed to include an obligation to furnish appro- priately requested information, not only during contract negotiations, as phrased in the first paragraph of the set- tlement agreement notice, which is emphasized by SIU, but also as may be required to enable the Companies to evaluate present referral practices in order to facilitate contract administration, and to prepare for future negoti- ations.91 This responsibility to furnish data for broader purposes was specifically recognized in the second para- graph of the settlement agreement notice not emphasized by the Union, where SIU agreed to not "engage in a re- fusal to furnish American Commercial Barge Lines and its affiliated companies such information relevant and necessary to the bargaining process." Therefore, SIU's position of being obligated to furnish the Companies with hiring hall information only during the course of contract negotiations is contrary to its re- sponsibilities arising both under the Act and the express language of the settlement to which it had -agreed. It is the Union's consistent, inflexible refusals to fur- nish data that diminish its most telling points: (1) that while the Companies were campaigning to have the set- tlement agreement set aside, they materially expanded their demands for information; and (2) that by Kilroy's June 19, 1981 letter to the Regional Director, the Com- panies, were furthering their efforts to have the settle- ment agreement vacated by complaining that the Union had refused to provide a wider variety of hiring hall records than ever had previously been requested of the Union, including records at three additional hiring hall locations to which no reference had earlier been made. When the Companies first began to request hiring hall information on April 7, 1981, all that was sought was the seniority ratings, dates and halls of registration, and the times and places of dispatch to their respective vessels of two employees-Van Winkle and Rose. This was fol- lowed by the April 24 request to see the daily activity reports at the Jeffersonville hall only. Kilroy's access claims culminated in the June 19 demand for the addi- tional documents at the four locations, made to the Re- gional Office. The records referred to there by Kilroy were not directly requested of SIU until Kilroy's corre- spondence of July 6. I do not condone tactics used by the Companies in seeking to have the settlement agreement overturned, which included arguments of noncompliance based on SIU's asserted refusals to provide more records and at more hiring hall locations than had been previously re- quested; and complaints that SIU representatives were not available on short notice to keep record inspection appointments unilaterally made by Kilroy. This was par- ticularly true of the canceled appointment for May 4, when Kilroy knew, or should have known, that Worley would be scheduled to attend the hearing before Judge 91 See Asbestos Workers Local 80 (West Virginia), supra at 144 654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Johnston . There certainly was no substance to Kilroy's assertion in his May 4 letter to the Regional Director that the Companies should be entitled to examine records during the involuntary absence of union representatives. However, the above points are not controlling as they do not affect the basic difficulty; SIU's consistent refusals before and since the settlement agreement to grant the Companies more than unlawfully limited access to hiring hall records. Whether the Union was being asked to pro- vide simple data concerning one hiring hall, as in April 1981, or more comprehensive information concerning four halls as in July of that year, SIU's position was always the same. In Cutler's letter of February 8, 1982, to the Regional Office, he reiterated SIU's refusal to pro- vide the Companies with "access to any records except those pertaining to the referral of employees to Inland Tugs Company or other affiliates of American Commer- cial Barge Lines Company . . . at times when the hiring hall ships employees to the employer , but the Union will not permit the employer to examine hiring hall records relative to the shipping of employees to other compa- nies." The Union's offer, as stated, is much too narrow to fulfill its bargaining obligation in this regard. More- over, while the Union's position as to what records it would provide has remained fixed and uncompromising, the Companies' access demands, relating to hiring hall records are not irrelevant or unnecessary because of their expanded scope, or because all had not been requested in the first instance.92 Finally, under the above-cited authority, the "clean hands" doctrine asserted against the Companies by the Union provides no defense to the Company's access claims. Under this defense, the Union argues that as the Companies had been found by Judge Johnston in collat- eral litigation to have bargained in bad faith in a variety of ways, including evasion of the hiring halls, the Union was under no duty to furnish the requested data. The Union, in pressing its own claims against the Companies is fortunate that its argument in this respect has not been adopted93 as, in the same decision , Judge Johnston also concluded that SIU had violated Section 8(b)(3) of the Act by refusing to provide other requested records. This is mentioned only to illustrate that a party's bargaining rights as against its partner rest on law rather than on comparative virtue. 92 Food Service Co., 202 NLRB 790, 800, 805 (1973), on which SIU relies, is readily distinguishable from the present situation There, al- though the Board recognized that when a request for company records "was made in general terms," the company must make the initial selec- tion of the records to be produced for inspection , the company had ex- pressed flexibility as to what ultimately might be provided . In its letter inviting the union to review certain documents at its premises, the com- pany wrote, "If we have any difference of opinion as to what is or is not relevant and/or necessary, such matter will be raised at the time and dis- cussed " The company in Food Service notified the union that it was not useful to delineate in advance of such a visit any and all matters which may or may not be relevant The Board , in dismissing this refusal -to-bar- gain allegation in Food Service Co, in those circumstances found signifi- cance in the union 's failure to accept the company's invitation to visit In the present matter, while not less willing to select the limited hiring hall records it would show the Companies , SIU, by contrast , never signalled a willingness to compromise or even to discuss modifying its overly re- strictive position 99 St Elizabeth Community Hospital, supra, Montgomery Ward & Co, supra For the above reasons, I conclude that by refusing to disclose, on request, information completely under its control and relevant and necessary to the collective-bar- gaining process, SIU refused to bargain in good faith in violation of Section 8(b)(3) of the Act.94 Cases Between United Industrial Workers of North America (UIW) and Louisiana Dock Company, Inc. (LDC), and American Commercial Terminals, Inc. (ACT) E. Union Security,' Dues Deductions-Cases 9-CA- 16703 and 9-CA-17053 1. ACT's discontinuation of UIW dues deductions and payments-Facts The General Counsel and Union contend that in con- travention of the union-security clause of the collective- bargaining agreement then in effect and unrevoked dues- checkoff authorizations, ACT unilaterally discontinued the deduction of dues from the pay of employees John Doss and Joe Knight following their return to work at ACT's Louisville, Kentucky facility after a strike, and stopped paying dues on their behalf to UIW. ACT contends that the return of these two men as new employees effectively nullified their earlier checkoff authorizations and that, in any event , the discontinuation of dues withholding was consistent with these employ- ees' wishes. The collective-bargaining agreement95 between LDC and UIW, which covered, among other locations, LDC's facility at Cairo, Illinois, and ACT's Louisville, Ken- tucky facility, provided at article I, section 6: The Company agrees that as a condition of em- ployment all present employees shall become mem- bers of the Union within thirty-one (31) days after the execution of this Agreement or thirty-one (31) days after hire, whichever is later, and all new em- ployees hired subsequent to the execution of this agreement shall become members of the union within thirty-one (31) days after hire, and shall remain members of the Union while employed by the Company during the life of this Agreement. The Company is not obligated to take steps to enforce this provision unless due notice is received from the Union to the effect that an employee is not in com- pliance therewith... . Consistent with article IV, section 1, of the contract, which provides a format for dues-checkoff authoriza- tions, employees sign the following: 94 Having found that the requested information the Union has refused to provide as demanded in the Company's July 6, 1981 letter , is relevant to the collective-bargaining process, I further conclude that the Union breached the specific terms of the settlement agreement , that the Region- al Director's order, dated February 24, 1982 , setting aside the settlement agreement was warranted, and that the Union , since September 22, 1980, has failed to bargain in good faith in this respect See Interstate Paper Supply Co. 251 NLRB 1423, 1424-1425 fn 9 (1980) Also see Globe Gear Ca v. NLRB, 451 F 2d 1348 (6th Cir 1971) 95 This contract, since expired and not replaced , was effective from August 19, 1976, through August 19, 1981. AMERICAN COMMERCIAL LINES CHECK-OFF AUTHORIZATION UNITED INDUSTRIAL WORKERS OF NORTH AMERICA I hereby assign to the UNITED INDUSTRIAL WORKERS OF NORTH AMERICA OF THE SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA-ATLANTIC, GULF, LAKES AND INLAND WATERS DISTRICT, and direct my Employer to deduct out of any wages earned and to be earned by me during this and each Quarter hereafter, my regular membership dues in such amount as the Secretary-Treasurer of said Union shall from time to time certify as the current regular period membership dues or assess- ments. Said dues are to be deducted at the monthly pro-rata rate on the first pay day of each month. This assignment and authorization shall be irrevo- cable for a period of one (1) year from the date hereof, or until the termination date of the current collective bargaining agreement between the Union and the Employer, whichever is the shorter period, and shall be automatically irrevocably renewed for like periods unless, within thirty (30) days before the end of my renewal period, I submit a written revoca- tion signed by myself and sent by registered mail, return receipt requested, to the Employer and the Union. This instrument authorizes you to deduct from the first pay I receive immediately after the thirty- first (31st) day of my employment an amount equal to the current initiation fees of the Union, which amount shall be certified by the Secretary-Treasurer of said Union, and hold this sum along with my monthly dues and any assessments that may have been deducted in trust, and remit them to the Union on or before the twentieth (10th) day of each and every month. This authorization shall be effective on the thirty- second (32nd) day of my employment. Date of Hire: Company: S.S. No.: Hm. Phone: Name: (Print) Address: Signature: Date [Emphasis added.] Article III of the contract, entitled "Grievance Proce- dure," provides that there shall be no strike, lockout, or work stoppage without prior use of the contractual grievance-arbitration procedure. The grievance proce- dure, which calls for strictly specified time limits for pro- ceeding and answering at each level, goes through two steps before culminating in arbitration at the third step. As noted, the complaint allegation in Case 9-CA- 16703 is that, contrary to the above contractual provi- sions for union security and union dues-checkoffs, since 655 October 6, 1980, ACT96 unilaterally stopped deducting dues from the wages of bargaining unit employees John Doss and Joe Knight and no longer paid over dues on their behalf to UIW. Both Doss and Knight had previ- ously executed dues-deduction authorizations. Also ex- plored in the record, although not alleged as violative in this complaint, was ACT's asserted concurrent failure to deduct and remit the dues of two other unit employees, Louis Tindal and Billy James, although both also had au- thorized same. The parties stipulated that Doss was hired into the bar- gaining unit at Louisville by ACT on October 16, 1978, where he continued to he employed until July 14, 1980, when he joined other employees in a strike.97 Doss was rehired by ACT as a new employee on Oc- tober 6, 1980. 98 Doss continued to work in the bargain- ing unit after his return until April 15, 1981, when he was promoted to foreman. As such he became a supervi- sor within the meaning of Section 2(11) of the Act.99 Joe Knight worked in the bargaining unit from April 29, 1980, to July 14, 1980, when he, too, joined the strike. Like Doss, Knight returned as a new employee on October 6, 1980, having received the same September 19 letter from Operations Manager Gray. He was still em- ployed in the bargaining unit at the time of the hearing. Tindal and James commenced work in bargaining unit positions on March 12 and April 2, 1979, respectively, and both continued until July 14, 1980, when they joined the strike. Both were rehired as new employees on April 6, 1981, each having received the September 19 termina- tion letter from Gray. Tindal continued to work within the bargaining unit until discharged on April 27, 1981, less than a month after his return. James still was em- ployed at the time of the hearing. Earlier, within 32 days of their dates of initial employ- ment, each of these four men executed the above-de- scribed dues-checkoff authorizations on behalf of UIW. These authorizations were signed on the following dates: Doss-October 17, 1978; Knight-May 30, 1980; Tindal-March 12, 1979; and James-April 2, 1979. It is stipulated that from the times these men signed their re- spective checkoff authorizations until July 15, 1980, 98 The parties agree that since January 1, 1979, ACT has been the suc- cessor to LDC at the Louisville facility and is bound by the above col- lective-bargaining agreement Also see Judge Linton's decision in Louisi- ana Dock Co., supra, 297 NLRB No 65, JD slip op at 3 (Dec 15, 1989) 97 The strike, which continued from July 15 to September 15, 1980, also was participated in by Knight , James, and Tindal. At the Companies' motion, I above struck all descriptive references in the Union 's brief to this strike as an unfair labor practice strike and to those who participated therein as unfair labor practice strikers as the status of the strike had not been alleged or litigated 98 Doss, Knight, Tindal, James, and all other unit employees who then were participating in the strike, received the following letter, dated Sep- tember 19, 1980, from Dallas Gray, operations manager of the Louisville facility Due to the fact that the Seafarers' International Union failed to engage in picketing at our facility from on or about August 11, 1980, through September 1, 1980, and in view of the fact that you did not report to work during this period we concluded that you had volun- tarily terminated your employment. If you are interested in applying for work as a new employee, please advise us and we will process your application 99 Certain conduct by Doss while a supervisor is also in issue in this proceeding and will be discussed, infra 656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD when they joined the UIW-called strike, ACT checked off and paid over their union dues, as authorized. How- ever, no dues were checked off or remitted to UIW con- cerning these men from July 14, 1980, to August 19, 1981, the contact expiration date. Pursuant to an informal settlement agreement ap- proved by the Regional Director for Region 9 on No- vember 9, 1981, in which ACT and UIW joined, the original seniority dates of all of these employees were re- stored. Accordingly, although they had returned to work as new employees after the strike with seniority only from their dates of return, under the settlement their se- niority reverted back to their dates of initial hire. Knight, James and Doss were called as witnesses by Respondent ACT as to the status of their checkoff au- thorizations following their poststrike employment.100 Knight related that after his return to ACT on Octo- ber 6, 1980, he noticed that dues were no longer being withheld. About 2 to 3 weeeks later, he asked Operations Manager Gray if he was to sign something to pay his dues again. Gray asked if he wanted to sign for union dues at that time. When Knight said that he did not, Gray told him that was his decision. According to Knight, Gray had not said anything as to why it would have been necessary for Knight to have signed a new checkoff authorization in order to have dues with- held. 10 1 Doss testified that on receiving his first weekly pay- check following his October 6, 1980 return, he too, ob- served that union dues had not been withheld . Doss then told Gray that he did not want union dues deducted from his wages. Doss did not recall any reply from Gray. Although James notice that no dues were deducted from his first paycheck, received in mid-April 1981 after his April 6 return, neither he nor any member of man- agement mentioned the matter.102 The dues of these men have not been withheld or paid over to the Union at any time since their poststrike return. Michael G. Worley'03 testified that in 1980-1981, while SIU port agent in nearly Jeffersonville, Indiana, he also represented UIW employees at ACT's Louisville fa- cility, and administered the collective -bargaining agree- ment at that location. In his UIW capacity, Worley became involved in the dues controversy concerning Doss and Knight in Louis- ville in March 1981, when he learned , while checking with the UIW's secretary-treasurer's office in Brooklyn, New York, that their dues, and, as will be discussed the dues of other employees, had not been paid to the Union by ACT. On March 10, 1981, Worley sent the following letter to Operations Manager Gray: 100 Tindal, terminated by the Respondent on April 27, 1981, did not testify 101 Gray did not testify. 102 At the time of the hearing, both Knight and James, who, original- ly, were employed as laborers, were classified as first class mechanics, positions reached after the strike Doss, as noted , has been a supervisor since April 15, 1981 103 Worley, SIU port agent at Wilmington, California , at the time of the hearing, has held a variety of such positions with that union since mid-1973 Our records reflect that your employees Mr. John Doss and Mr. Joe Knight have executed Dues Check-off Authorization letters directing your Company to deduct and remit to this Union pay- ments for Union dues. Our records also reflect that no payments have been received in behalf of Mr. Doss or Mr. Knight. Be advised that the Union demands payment by March 20, 1981. Worley received no reply this letter. 2. Discussion and findings It is settled that an employer's refusal to honor dues- deduction cards submitted by the union during the term of collective-bargaining agreement providing for union security and dues checkoff is violative of Section 8(a)(1) and (5) of the Act. 104 Where the checkoff clause of the contract requires that notice of withdrawal of the dues- deduction authorization be given in writing to both the employer and union before such revocation is effective, such a provision may be enforced so that where the em- ployer, without notifying the union, honors and treats as effective, checkoff revocations not served on the union, the employer unilaterally changes the terms of the con- tract at midterm in violation of Section 8(a)(1) and (5) of the Act' 105 In the present matter, ACT terminated Doss and Knight in September 1980 while they were participating in a UIW-sponsored strike at the Louisville facility and rehired them as new employees as of October 6, 1980, with seniority as of that rehire date . Since their return, contrary to the checkoff authorizations they signed early in their initial employment with ACT, no dues have been deducted from their pay and remitted to UIW. Until July 14, 1980, when Doss and Knight joined the strike, ACT had honored their checkoff authorizations by deducting and remitting to the Union the appropriate dues. In No- vember 1981 , pursuant to an informal settlement agree- ment approved by the Regional Director for Region 9, in which ACT and UIW had joined, their original se- niority dates were restored, as was the original seniority date of James . James also had joined the strike but had not returned as a new employee until April 1981.106 A necessary effect of restoring their original seniority dates to Doss and Knight by the time of this proceeding was to end ACT's claim that they were new employees since October 6 and, therefore , were required to execute new dues-deduction authorizations . While I do not adopt UIW's argument that there had been no interruption in the employment relationship based on the unsupported contention that they were reinstated unfair labor practice strikers, I do find, however, from the parties' agreement that in restoring original seniority to these employees, they inherently concurred that there had been no func- tional break in the employment relationship . According- 104 Colson Equipment. Inc, 257 NLRB 78, 79 (1981) 105 Rock-Tenn Co, 238 NLRB 403, 408 (1978). 106 Tindal , whose situation had been similar to James , was discharged a few weeks after his return as a new employee and was not an immedi- ate beneficiary of the settlement AMERICAN COMMERCIAL LINES ly, all employment rights and obligations of these em- ployees, including those arising under the collective-bar- gaining agreement , related back to their dates of original hire and their original dues-deduction authorizations were automatically revalidated. To reach a different con- clusion would be so diminish the effect of the settlement agreement by selectively reducing the significance of re- storing seniority, a principal term. Therefore, it is con- cluded that he original dues-checkoff authorization exe- cuted by Doss and Knight were validly reactivated by the settlement agreement, and that those authorizations continued in effect until the expiration date of the con- tract or, in Doss' case , until he became a supervisor. No new checkoff authorizations were required.107 I also find no merit to ACT's contention that this claim for the dues of Doss and Knight is barred by Sec- tion 10(b) of the Act, which prohibits the issuance of complaint upon any unfair labor practice charge occur- ring more than 6 months before the filing of the charge with the Board and service of a copy of the charge upon the person against whom such charge is made . In this regard, ACT argues from the 6-month limitation period that as no dues had been withheld from the wages of Doss and Knight and remitted to UIW since October 6, 1980, a charge complaining of the failure to have done so must have been filed and served on it no later than April 6, 1981.108 The above-noted stipulation that dues were not de- ducted or remitted, however, does not address when the Union could have become aware of such nonpayment, which is when the limitations period starts to run. Doss and Knight, although unsure of dates, testified, in effect, that they learned dues were not being withheld on Friday, October 10, when they received their first pay- checks after returning to work. Their observation that no dues deduction had been made, of course, was not imput- able to the Union. The checkoff authorizations signed by Doss, Knight, James, and Tindal provide, in relevant part, that dues were "to be deducted at the monthly pro- rata rate on the first pay day of each month," and to be remitted "to the Union on or before the twentieth (20th) day of each and every month." ACT, noting this, argues that, even if the charge had been filed on April 20, it still would be untimely as not served on the Company until April 22, 1981, 2 days after the end of the limitation period. I disagree. The duty to establish as part of its 10(b) de- fense just when UIW had, or should have had, knowl- edge that dues deliberately no longer would be deducted and remitted, so as to start the running of the 6-month 107 Industrial Towel & Uniform Service Co., 195 NLRB 1121 (1972), and Railway Clerks (Yellow Cab), 205 NLRB 890, 892, enfd 498 F.2d 1105 (5th Cir 1974), are cited by ACT for the proposition that former em- ployees such as Doss and Knight, when rehired as new employees, may be required to sign new checkoff authorizations as their previously exe- cuted authorizations ended with the original employment relationship and were not revived by return as new employees . These cases are inaoppo- site as in those matters there had been no agreement to restore the affect- ed employees' original seniority Simply put, ACT cannot agree to re- store the seniority of Doss and Knight while, at the same time, continue to treat them like new employees. 108 The relevant change was filed on April 16, 1981, and a copy served on ACT on April 22 657 limitations period , rests with ACT as the proponent of this defense. Here, contrary to General Marine Transpor- tation Corp. v. NLRB,I09 on which ACT strongly relies, the Company gave no notice of repudiation to the Union I I o and so there was no way for this Union to know immediately whether the nonpayment of dues rep- resented a willful act or mere delinquency. Absent af- firmative repudiation, the Union was entitled to a reason- able period in which to make this determination before knowledge could be inferred that ACT deliberately was not going to collect and pay over the dues. While such a reasonable period, of course, would be much briefer than to the following March when Worley finally requested payment in writing, it does not necessarily start the moment payment is not received. A different finding would require the parties, at their peril, to file unfair labor practice charges at the first discrepancy.I I I I further find that the 10(b) limitations period was tolled by the pendency of the charge concerning the status of Doss and Knight as new employees, which, fi- nally, was resolved in favor of restoring their seniority. Until their status was settled, as was done in that pro- ceeding, the efficacy of their checkoff authorizations, which ACT considered invalid , could not be determined. Finally, even if it were concluded that claims for Oc- tober 1980 dues from Doss and Knight were initially time-barred by a strict application of the 10(b) rule, the violation continued into the 10(b) period as the refusuals to deduct and remit their dues persisted during the con- secutive succeeding months.' 12 It is clear under Rock-Tenn, supra, that the oral state- ments by Doss and Knight to ACT's Louisville Oper- ations Manager Gray in October 1980 that they did not want checkoff resumed were insufficient to serve as ef- fective authorization revocations where the contract and the authorizations provided that such revocations must be in writing and served by registered mail on both ACT and UIW. Accordingly, ACT violated the Act by unilat- erally honoring and effectuating these oral revocation re- quests. For the above reasons, it is concluded that ACT vio- lated Section 8(a)(5) and (1) of the Act by unilaterally discontinuing dues deductions from the wages of Doss and Knight and payments of same to UIW,113 after they 109 619 F 2d 180 (2d Cir 1980), denying enf 238 NLRB 1372. The Board has not indicated that it has abandoned the position it took in Gen- eral Marine Transportation, supra 110 In General Marine Transportation, supra , unlike the present case, the respondent sent the union correspondence announcing its intention not to bargain. 111 Farmingdale Iron Works, 249 NLRB 98 fn 3, 106 ( 1980), enfd 661 F 2d 910 (2d Cir 1981) '12 Campo Slack, 266 NLRB 492 (1983) 11" Although the record contains considerable evidence concerning ACT's similar unilateral cessation of dues deductions and payments to UIW re James and Tindal , such conduct was not alleged as unlawful and the General Counsel makes no claim that ACT had violated the Act con- cerning them Accordingly, no finding of violation is made with respect to these two men U!W did not demand the discharge of James and Tindal, nor of Doss and Knight , for nonpayment of dues under the contractual union -security clause as was the case with 14 other employees, to be considered below in Case 9-CA-17053-1-2-3 A principle purpose for the evidence ad- Continued 658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD returned in October 1980, contrary to the collective-bar- gaining agreement then in effect, and during its term.114 F. Failure to Discharge for Nonpayment of Union Dues-Case 9-CA-17053 1. The facts The General Counsel and UIW contend that ACT re- pudiated the above-quoted union-security clause by un- lawfully refusing to comply with UIW's demand that the following 14 Louisville employees, hired on the dates shown next to their names, be terminated for nonpay- ment11s of union dues: I16 Ronald Tomes April 21, 1981 Jack Voyles April 8, 1981 Billy Rice April 8, 1981 Jim Williams August 4, 1980 Mark Ferree February 1, 1981 Ron House August 26, 1981 Tony Arnold August 11, 1980 Rick Jennings August 12, 1980 Terry Williams August 21, 1980 Mike Ritchie February 12, 1981 William Duvall November 19, 1980 Kevin Bennett ' 16 May 1, 1981 Kevin McCoy May 6, 1981 Joseph May May 7, 1981 On March 10, 1981, in addition to the aforementioned letter that port agent Worley sent to ACT's Louisville Operations Manager Gray demanding dues payments on behalf of Doss and Knight, he also sent separate identical letters to 7 of the above-listed 14 employees-Terry Wil- liams, Jennings, Arnold, Duvall, Ritchie, Jim Williams, and Ferree-advising the recipients that the initiation fee and monthly union dues were $75 and $8, respectively, and that payment of the initiation fee and dues , both cur- rently and past due, was being requested as each of these employees had failed to meet his monetary obligations to the Union. These recipients were given the opportunity to pay their initiation fees in three $25 installments be- tween March 20 and April 3, 1981, but were advised that payment of the full amount of dues owed, which had duced concerning James and Tindal, as well as Doss and Knight, appears to relate to ACT's contention in that other matter that UIW's demands for discharge were made disc riminatorily as the four named employees had participated in the Union's 1980 strike while the 14 whose discharges were demanded had not 714 ACT's defense that the issue concerning the unpaid dues of Doss and Knight be submitted to arbitration under Collyer Insulated Wire, 192 NLRB 837 (1971). as reaffirmed by United Technologies, supra, and Olin Corp, supra, is without merit as the point at issue does not involve the meaning and application of the collective-bargaining agreement, but the significance of the provision of a Board settlement agreement calling for restoration of original seniority to certain employees This matter, rooted in statutory obligation, cannot be resolved under the contratucal griev- ance-arbitration machinery See Edward J. White. Inc, 237 NLRB 1020, 1026 (1978). 11 r, The parties stipulated that although all the 14 names individuals were hired into bargaining unit positions , at no time during their employ- ment with ACT did they execute dues-checkoff authorizations or other- wise tender union dues to UIW. I16Of the named employees, only Bennett was later terminated, on September 14, 1981, because of absenteeism and tardiness, reasons unre- lated to UIW's demand been accruing monthly since their respective 31st days of employment, must be made at UIW's Jeffersonville, Indi- ana office no later than March 27, 1981. On March 21, 1981, a copy of this same letter was sent to employee Ron House. Worley sent a series of identical followup letters to the first seven addresses, from Terry Williams to Ferree, in- clusive, on March 28. In this mailing, Worley attached copies of his original letters and of the master collective- bargaining agreement . Citing article 2, section 6, of the contract, Worley reminded his readers that they were not in compliance with the union-security clause because of their failure to pay the required union initiation fee and dues. Worley gave notice that if payment was not received by April 3, 1981, the Union would request their dismissal . No moneys were received. On May 28, 1981, Worley personally hand delivered to the seven recipients of his March 10 correspondence, his new written reminder that they had not paid their dues and initiation fees under the contractual union-secu- rity clause, as previously requested. The employees again were advised of the amounts of the initiation fee and monthly dues, but were informed that they could achieve compliance by paying the sum of $99, covering the $75 initiation fee and $8 dues for the months of March, April, and May 1981.11' This letter specified that if payment was not received by June 5, 1981, the Union would demand that the Com- pany discharge them for failure to comply with the union-security clause. Also on May 28, Worley hand delivered' 18 to more recently hired Louisville employees Tomes, Voyles, Rice, House, Bennett, McCoy, and May, a second uni- form letter of that' date. This letter notified them of their obligation to pay initiation fees and dues to the Union in the above-described amounts under the contractual union-security clause, which there was quoted in its en- tirety. These employees were advised that unless $83, representing the initiation fee and I months' dues, were received by June 15, 1981, UIW would enforce the union-security clause of the contract and demand their discharge. Worley's letters of May 28 were unanswered as was his earlier similar correspondence. After checking with the union secretary-treasurer's office to learn whether dues had been paid by any of the individuals, or by ACT, Worley wrote to Operations Manager Gray on June 12, 1981, advising that 11 of the named 14 employ- ees had failed to become members of UIW within 31 days of their dates of hire, and, although notified in writ- ing of their union-security clause obligations and given an opportunity to comply, they had failed to do so. Therefore, UIW demanded the discharges of Tomes, Voyles, Rice, Jim Williams, Ferree, House, Arnold, Jen- nings, Terry Williams, Ritchies, and Duvall. 117 Worley's May 28 demand for only 3 months' dues represented for- ebearance in terms of what had been originally demanded and what was due under the union -security clause from most of those employees Ile Worley testified that his efforts to hand deliver the May 28 letters were facilitated by Lewis Tindal, who had served as shop steward in 1980, and who, unlike Worley, personally knew some of the men AMERICAN COMMERCIAL LINES On June 23, in a like letter to Gray, Worley, for the same stated reasons, requested the immediate discharge of the three remaining employees to whom he had writ- ten earlier, Bennett, McCoy, and May. Worley never re- ceived responses to his June 12 and 23 letters to Gray. Worley testified that as SIU port agent , he is not an officer of UIW and only occasionally represented that Union. He related that he first had learned that ACT was not deducting and remitting dues, including those of Doss and Knight , when, in the context of UIW's trou- bled relationship with ACT, he checked with the union's secretary-treasurer on March 1 , 1981, to ascertain gener- ally whether dues were being withheld at ACT's Louis- ville terminal. Before the start of the July-September 1980 strike at ACT's Louisville facility, that Company had followed a practice of providing UIW with copies of new checkoff authorizations from recently hired employees . This prac- tice ended with the start of the strike and did not resume after the strike was over. It is stipulated that the Compa- ny also had regularly supplied UIW with computer printouts showing the amounts deducted from the pay of each employee and each employee's date of hire. Worley conceded that shortly before mailing his initial correspondence in this series , on March 10, he had met in the company cafeteria with several unidentified bar- gaining unit employees who had expressed to him their dislike for UIW and their disinclination to be members. He had received information during the strike, also from unidentified sources, that ACT had hired employees who were working at the facility while the picketing was going on. Some of these newly hired employees were among the 14 employees whose discharges later were de- manded by Worley because of failure to pay dues and initiation fees. Although Worley, as described, had demanded pay- ment by ACT for the dues of Doss and Knight, at no time had he demanded that they be discharged for non- payment of moneys due under the contractual union-se- curity clause.' 19 ACBL Vice President Kilroy testified that after Wor- ley's letters of June 12 and 23 demanding discharge of the 14 employees were given to him by Gray , he investi- gated the payroll records of the 16 unit employees, in- cluding those of James and Knight, and found that dues had not been withheld . However, Kilroy took no action to comply with UIW's requests for termination, explain- ing that he had not met the Union 's demands as it was asking for the discharge of employees who had not hon- ored its picket line, but not for the termination of member employees who had honored the picket line, such as Knight and James. Kilroy also testified that he had heard from other sources that employees at ACT had run Worley off the Company's premises earlier that year. ACT, accordingly, argues that the Union's de- 19 As noted , no requests were made by UIW for the discharge of James and Tindal, who returned to ACT's employ on April 6, 1981, after UIW's first collection attempts, on March 10 and 21 As Doss became a supervisor on April 15 and as Tindal was terminated for unrelated rea- sons on April 24, by May 28, James, Knight, and the 14 named employ- ees made up the total of 16 employees in the bargaining unit at Louis- ville. 659 mands for the termination of the 14 men was not solely an effort to enforce the contractual union -security clause, but was a calculated attempt to punish those who had not supported the strike and who otherwise were averse to becoming UIW members. ACT further contends that although some of the 14 employees were hired as long as 7 months before March, when Worley began his collec- tion correspondence , he did not begin his campaign to collect dues until that month because it was then that he met with the hostile employees. ACT asserts that if the Union had been motivated solely by the desire to collect back dues and to enforce the contract , discharge of James and Knight, also in arrears , would have been sought, as well. According to ACT, the distinguishing factor between James and Knight and the 14 others whose discharge had been demanded was Worley's knowledge that James and Knight had supported the 1980 strike while some of the others had not, but had crossed the picket line.120 Worley, in turn, explained that he had not demanded the discharge of James and Knight because, unlike the others, they had executed timely dues-checkoff authori- zations, had paid their initiation fees and dues in the past, and as their current dues arrearages since returning to ACT's employ had accrued through no fault of their own. However, he had tried to collect their dues from the Company. As a part-time representative of UIW, Worley had not learned that dues were not being with- held at ACT's Louisville facility until his inquiry of March 1 , and, accordingly, had not acted to enforce the union-security clause until after that date . Accordingly to Worley, the timing of his efforts to enforce the union-se- curity clause followed his learning of the problem and was not influenced by the expressed antiunion sentiments of certain unidentified employees in March. 2. Discussion and findings Where an employer does not accede to a union's re- quest, made under the union -security provision of their collective-bargaining agreement and during the contract term, that certain employees be discharged for failing to pay their appropriate initiation fees and dues, the em- ployer unilaterally modifies the parties ' contract in viola- tion of Section 8(a)(5) and (1) of the Act if the union, before requesting discharge, had notified the relevant employees that their jobs were in jeopardy for nonpay- ment of dues and/or initiation fees, had given them op- portunity to cure their delinquencies, and if the discharge request is solely to enforce the contractual union-security clause, rather than to retaliate against the employees for some other reason.112 1 Laxness by a union in enforcing a union-security agreement does not preclude the union from thereafter seeking enforcement. 122 However, i20 Ten of the fourteen employees whose terminations were sought in enforcement of the union-security clause were not hired until after the strike had ended 121 Independent Stave Co, 248 NLRB 219, 220 fns. 4 and 5 (1980), California Blowpipe & Steel Co, 218 NLRB 736 (1975) 122 California Blowpipe & Steel Co, supra at 75, Zoe Chemical Co, 160 NLRB 1001, 1013 (1966), enf denied 406 F.2d 574 (2d Cir. 1969) Cf Special Machine & Engineering Co, 109 NLRB 838, 839-840 (1954) 660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD absent unlawful considerations, the failure to treat all de- linquents alike does not per se preclude a union from lawfully invoking a union-security clause against particu- lar individuals. 12 3 Noting that when in the present matter UIW's demand for the discharge of the 14 employees was made, the col- lective-bargaining agreement was still in efect, that the embodied union-security clause was lawful on its face, that the employees had been given adequate specific notice of their financial obligations to pay initiation fees and dues,124 that they had been warned that their jobs were in jeopardy if they did not make payment, and that they had been given extended opportunities to remit the moneys even in lesser amounts than owed, I find that the Company was obliged to accede to the Union's demands for the termination of these employees. It is not supportive of ACT's argument concerning re- taliation against nonstrikers that employees such as Terry Williams, Jim Williams, Tony Arnold and Rick Jennings, who had been hired in August 1980, during the strike, who had worked during the strike, and whose dues li- ability had been accruing since the expiration of their 31 day union-security clause grace periods on various dates in September 1980, were informed in Worley's May 28, 1981 letter that they could become current by paying their initiation fee and dues for only the preceding 3 months-March through May. In fact, contrary to ACT, the employees who were most kindly treated by UIW in this connection, both with respect to the amount of debt forgiveness and repeated extensions of time to make good, were the employees who had been hired during the strike and who had crossed UIW's picket lines. Moreover, as noted, 10 of the 14 relevant employees were not hired until the strike had ended. Also contrary to ACT, which would connect Wor- ley's initial attempts in March 1981 to collect union fees and dues to his meeting that month with unit employees hostile to UIW, I find no special significance in Worley's timing. As a full-time SIU official who represented UIW on a part-time basis, he explained that he did not learn of the dues delinquencies until March 1 when he checked with the secretary-treasurer's office . This apparently is corroborated by the fact that he also did not attempt to collect the dues of Doss and Knight until that month, either, although ACT seeks to distinguish the treatment afforded them as strike supporters from that of the other employees. Doss and Knight had paid their initiation fees/dues and had supported the strike. Notice of revoca- tion of their checkoff authorizations had never been served on the Union as required by the contract and the authorizations. As in California Blowpipe & Steel Co.,125 I find the Company's failure to communicate to UIW its reasons for not complying with requests that the union -security clause be enforced indicates that reasons now advanced, are not the real ones . UIW had never received an answer 123 North American Rejactortes Co, 100 NLRB 1151, 1155 (1951). 124 The Company does not assert that the fees and dues sought were excessive 123 218 NLRB at 746 to any of its letters to the employees126 or to the Com- pany, and Worley testified without contradiction that his first information as to why the Company had not agreed to his requests for enforcement of the union-security clause was when he heard Kilroy on the witness stand during this proceeding. As in California Blowpipe, the Company's reasons for not complying with the request that the union-security provision be enforced were not prepared or presenting until well after the unfair labor practice charges had been filed and when ACT was de- fending against the charges . As held by Administrative Law Judge Shapiro in his Board -approved decision in California Blowpipe: In such an atmosphere, tainted by a live contro- versy, the statements of Respondent's labor relations consultant or its attorney are of no help to me in evaluating the state of mind of [Respondent 's presi- dent] Hogan and the basis of Hogan's belief when he made the decision not to comply with the Union's request. I am convinced that if Hogan, as he testified, was concerned about unequal or unfair treatment being accorded to the employees . . . that Hogan would have communicated this information to the Union in order to justify his refusal to dis- charge the employees, as requested by the Union, rather than simply not answer the request. Also, contrary to ACT,127 it was the Company, having received the Union's discharge demand, rather than the Union, that had the obligation to investigate and determine whether the alleged delinquents were, in fact, members in good standing and would agree to become members of UIW.128 ACT made no such effort. No merit is found to the Company's contention that under Section 10(b) of the Act, complaint allegations concerning the decision to not terminate the 14 employ- ees are, at least in part, time-barred as UIW knew, or should have known, that a number of the affected em- ployees had not been paying their dues or initiation fees for periods in excess of 6 months before June 29, 1981, when the relevant charge was filed and served.128 In Teamsters "General" Local No. 200 (State Sand & Gravel Co.),130 the Board found that the respondent union had violated Section 8(b)(2) of the Act by causing the com- pany to discharge one employee and to reduce the se- niority of another its written demand that both employ- ees be terminated under the contractual union-security clause for nonpayment of dues . The Board there found that the case against the union was not time-barred al- though the request for discharge had been mailed outside the 10(b) period as both the request was received by the company and the employees disciplined within 6 months of the filing of the charge. There, as applicable here, the 10(b) period began to run when the request for discharge was received by the employer. While the Union in the 126 ACT received concurrent carbon copies of all of Worley's letters to the dues-delinquent employees 127 See Respondent Companies' initial posthearing brief, p. 37 128 Independent Stave Co., 248 NLRB at 220 129 An amended charge was filed and served on July 15. 130 155 NLRB 273, 274 (1965) AMERICAN COMMERCIAL LINES 661 present matter, as argued by ACT, should have known that certain employees had not been paying dues for more than 6 months before it demanded their termina- tion, it was not until the Union had demanded compli- ance with the enforcement of the contract that it could know whether the Company intended to meet its bar- gaining obligation in this area. Accordingly, as the Union's two unanswered demands for discharge in the present matter and the relevant unfair labor practice charge were all filed during the month of June 1981, within the 10(b) period, I find that the complaint is not time-barred. Finally, contrary to ACT, deferral of the matter to ar- bitration under Collyer Insulated Wire, ' 3 t and the Board's very recent decisions in United Technologies Corp., 132 and Olin Corp., '33 would be inappropriate as the dispute issue involves repudiation of the contractual union-security clause and , therefore, rejection of the principles of collective bargaining . See the dissenting opinion by former Members Penello and Walther in Gen- eral American Transportation Corp.,' 34 and quoted with approval by the Board majority in United Technologies, supra. t 35 Moreover, the parties have not invoked the grievance-arbitration machinery which, by its terms, specifies that grievances initially must be taken up within 3 days after occurrence of the subject of the grievance, and which provides a strict timetable by which each of the subsequent stages of grievance processing must occur. There, in fact, is no showing that any grievances had been, or now could be timely filed in this area. As the record as a whole does not establish that the Union acted toward the employees whose discharge it was seeking in any way that can be characterized as dis- criminatory, unreasonable or contrary to its obligations to treat all employees uniformly in enforcing its union- security agreement, and as the Respondent's other de- fenses herein are not found meritorious, it is concluded that by not acceding to the Union's timely request to en- force the union-security provision of the contract, ACT unilaterally modified the parties' contract at midterm in violation of Section 8(a)(5) and (1) of the Act. 136 G. Failure to Notify UIW ofJob Openings and to Use UIW's Hiring Hall-Case 9-CA-17553-1-2-3 1. The facts The General Counsel and UIW contend that LDC at its Cairo, Illinois facility, and ACT at its Louisville, Ken- tucky facility, violated Section 8(a)(1), (3), and (5) of the 131 192 NLRB 837, supra 132 268 NLRB, 557, supra. 133 268 NLRB , 573, supra. 134 228 NLRB 808, 817 (1977). 195 268 NLRB at 559-560 196 Although the termination of so large a number of bargaining unit employees might constitute a hardship for ACT-in this case 14 out of a total of 16 unit employees would have been affected -ACT presented no evidence that this consideration had caused it to not comply with the Union's request As in California Blowpipe, supra at 753, at no time, either to the Union or during the course of this litigation , did ACT indicate that in refusing to discharge the employees it was motivated, even in part, by the economic hardship that would result from the discharges. Under these circumstances, there is no reason to attribute to ACT a motive of economic hardship it had not claimed for itself Act by repudiating the hiring hall provision of the col- lective-bargaining agreement with UIW in not notifying UIW when job openings arose, and by directly hiring 15 employees, from April 21 to July 29, 1981, without using UIW's exclusive hiring halls. Accordingly, LDC and ACT are charged with unlawful unilateral modification of the terms of the collective -bargaining agreement with UIW, and with discriminating against any work appli- cants then registered at UIW's hiring halls and available for referral to positions filled by the 15 employees hired in alleged unlawful circumvention of the referral system. The Respondent Companies, although agreeing that they have been hiring at Cairo and Louisville without notifying UIW of job vacancies and without using UIW as an exclusive employee source as required by the con- tract, deny that they have violated the Act on grounds that: ( 1) UIW operates no hiring halls, is without a formal referral procedure and the General Counsel failed to prove that UIW had any applicants registered for re- ferrals; (2) UIW, by prolonged nonenforcement, had waived its rights under the contractual hiring hall provi- sion; and (3) the charge is time-barred by Section 10(b) of the Act. The parties' collective-bargaining agreement consists of a "Master Agreement" between LDC and UIW, effec- tive from August 19, 1976, through August 19, 1981, and a series of amendments agreed upon at various later dates during the contract term . These amendments, embodied in a series of signed letter and addendum, did not extend the term of the contract. On January 23, 1979, ACT became successor to LDC at the Louisville coal transfer facility t S 7 and it is undisputed that ACT became bound by the existing bargaining agreement with UIW with re- spect to the Louisville part of the multilocation bargain- ing unit, while LDC remained a party with respect to other facilities, including the location at Cairo, Illi- nois.138 Article II, section 1(a), of the aforesaid master agree- ment provides: The Company agrees to notify the Union whenever a job opening arises and the Union agrees to furnish the Company with capable, competent and physical- ly fit persons when and where they are required. To assure maximum harmonious relations, and in order to obtain the best qualified employees, the Company agrees to secure all vacancies within the unit through the hiring hall of the Union. If, for any reason, the Union does not furnish the Company with capable, competent physically fit persons when and where they are required an of the ratings needed to fill such vacancies in ample time to pre- vent any delay of the work schedule covered by this Agreement, the Company may then obtain per- 137 Although the complaint in Case 9-CA-17553-1-2-3 alleged that LDC, ACT, ACBL, and ACL were a single, integrated enterprise, in ac- cordance with the parties' stipulation that that issue is not relevant to the instant proceeding, no finding is made in this regard. 138 As noted in the description of the above found relevant unit, other included facilities besides Cairo and Louisville were at Harahan and Westwego, Louisiana, and Hennepin, Illinois. 662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sonnel from any available source, in which case the Union shall be notified. 139 [Emphasis added.] The following facts are undisputed. From January 2, 1975, to the time of the hearing, LDC at its Cairo, Illinois facility, and ACT, from March 1978 until August 1981, at its Louisville facility, neither notified UIW when unit job openings arose at their re- spective facilities, nor filled any vacancies within the bar- gaining unit through use of UIW hiring halls. The parties agree that UIW knew this. 140 LDC and ACT, respectively, hired the numbers of bargaining unit employees shown at the below designat- ed facilities without notice to UIW or recourse to its hiring halls: Times of Employer (Calendar Facilit Employees Hire Year-CY) y Hired Aug. 20, 1976 thru LDC December 31, 1976 Cairo, IL 35 LDC CY 1977 Cairo, IL 78 LDC CY 1978 Cairo, IL 113 LDC CY 1979 Cairo, IL 118 LDC CY 1980 Cairo, IL 105 LDC CY 1981 Cairo, IL 24 LDC CY 1976 Hennepin, IL 2 LDC CY 1977 Hennepin, IL 16 LDC CY 1978 Hennepin, IL 10 LDC CY 1979 Hennepin, IL 25 LDC CY 1980 Hennepin, IL 13 LDC CY 1981 Hennepin, IL 0 ACT CY 1977 Louisville, KY 2 ACT CY 1978 Louisville, KY 14 ACT CY 1979 Louisville, KY 9 ACT CY 1980 Louisville, KY 11 ACT CY 1981 Louisville, KY 10 UIW did not operate any hiring halls for the purpose of referring employees to the Cairo and Louisville facili- ties, the two locations where the hiring methods fol- lowed are here at issue, and also, did not have a formal referral procedure. On April 7, 1981, SIU port agent Michael Worley sent the following mailgram on behalf of UIW to Dallas Gray, ACT's Louisville operations manager: 19 The parties stipulated that the hiring hall provisions in the earlier collective-bargaining agreement between LDC and U1W, effective Janu- ary 15, 1974, to January 15 , 1977, were identical to those quoted above from the collective-bargaining agreement that expired on August 19, 1981 140 From 1976 through August 1981, LDC sent UIW halls in St Louis. Missouri, Paducah, Kentucky, and New Orleans, Louisiana, monthly computer printouts concerning employees at LDC's facilities at Cairo, Hennepin and Harahan-Westwego These printouts, among other things, showed the names of employees who worked during each month, each employee's social security number, the amounts in dues and initi- ation fees deducted from each employee's pay, and each employee's date of hire From 1977 until August 1981, ACT also sent monthly computer print- outs to UIW hiring halls in St Louis, Paducah , and New Orleans, which contained the same employee information concerning Louisville, Ken- tucky, employees as was provided by the LDC-furnish printouts As you are aware, Article 2 Section 1 (a) of the col- lective bargaining agreement between American Commercial Terminals Inc. and the United Industri- al Workers of North American requires a company to notify the Union whenever a job opening arises. This agreement is in full force and effect, and the Union expects and demands that the Company com- pany fully with Article 2, Section 1(a) as well as all other terms of said agreement... . Worley received no written response to this mailgram, but testified that sometime between April 7, when he sent the communication, and May 28 , 1981, he met with Gray during a visit to ACT's premises. On that occasion, Gray told Worley that it was his understanding that the collective-bargaining agreement provision relating to union notification of vacancies, as referred in Worley's mailgram, did not apply to ACT. Worley replied that it was his understanding that the notification provision did apply, and he again asked Gray to adhere to those con- tract provisions . Gray responded that he was not in- volved with all that and that the matter should be left to the lawyers. Worley did not again speak to Gray about ACT's failure to notify UIW of job openings. On April 13, 1981, Nicholas J. Marrone, UIW business agent in Paducah, Kentucky, sent Captain Al Pannier, LDC marine superintendent in Cairo, the following letter: The United Industrial Workers demands that the company immediately comply with Article 2, Sec- tion 1(a) of the current collective bargaining agree- ment between Louisiana Dock Company and the United Industrial, Workers of North America. Our Office is open from 8:00 to 5:00 on weekdays and 8:00 to 12 noon on Saturdays for job calls. Pannier wrote his reply on the bottom of Marrone's letter, where he advised Marrone that the cited contract provision did not apply to Cairo according to the Cairo addendum of January 15, 1977.141 Following these communications and as alleged in the complaint, LDC and ACT hired the following employ- ees into bargaining unit positions at Cairo and Louisville, respectively, on the dates shown, without notifying UIW of existing job vacancies or contacting that Union for re- ferrals: ACT (Louisville) Ron Thomas April 21, 1981 Kevin Bennett ' May 5, 1981 Joseph May May 22, 1981 Kevin McCoy May 22, 1981 191 Examination of the January 15, 1977 document referred to by Pan- nier (J. Exh 8(c)), and received as part of the collective-bargaining agreement, reveals nothing to support or clarify Pannier 's response In the so-called Cairo addendum, the parties agreed to reaffirm and amend the master agreement of August 1976 by establishing new wage rates for specified work classifications, effective January 16, 1977, and to set forth the holidays to be observed AMERICAN COMMERCIAL LINES Billy Pettitt LDC (Cairo) April 28, 1981 Jerry Held April 28, 1981 Leon Brown May 4, 1981 Kirk Kerr May 11, 1981 Steve Denton May 13, 1981 Tony Harp May 20, 1981 George Williams June 1, 1981 Joseph Crews June 30, 1981 Randall Gardner July 12, 1981 James Carter July 29, 1981 Richard Sanford July 29, 1981 2. Discussion and conclusions An employer's obligation, in appropriate circum- stances, to use contractual mandated hiring procedures has been recognized above in this decision where it was found that ACBL and ITC violated Section 8(a)(1), (3), and (5) of the Act by their failure to use SIU's exclusive hiring halls as their source for bargaining unit employ- ees.142 Here, however, it is established that UIW has not had an operative hiring hall or a formal job referral proce- dure. In Plasterers Local 534 (Duran Maguire), 143 the Board, in what appears to be its most recent expression , accept- ed the second remand in that case from the U.S. Court of Appeals for the First Circuit. 144 In his supplemental decision, approved by the Board. Judge Dyer, in recom- mending violation, found that the union's hiring hall op- eration was not legitimate. In so concluding, he observed that the union did not operate a referral hall, but ran a referral system largely from its office telephone. The business agent, entirely at his discretion , determined to whom to refer jobs, and matched skills to employment. There were no published rules and no use of a chrono- logical order for referring employees. As Judge Dyer noted,145 "There was no chance for anyone coming in from the outside to see how the system ran." The Board's acceptance of the remand in Duron Ma- guire actually was consistent with the weight of its own precedent in hiring hall cases . In such matters, the Board has emphasized the need for formal procedures in the operation of exclusive hiring halls, entailing some meas- ure of accountability. The Board consistently has held 142 Also see Pacific Intercom Co, 255 NLRB 184 (1987), Kraft Plumb- mg & Heating, 252 NLRB 891 (1980) 141 243 NLRB 712 (1979). 144 See 590 F 2d 15 (1st Cir. 1978) In vacating and remanding the Board's initial decision in Duron Maguire. 216 NLRB 826 (1975), which dismissed a complaint alleging that the respondent union had violated Sec 8(b)(1)(A) and (2) of the Act by the way it operated its referral system , the same court of appeals, at 526 F 2d 1189 ( 1975), found, among other things, an absence of evidence that an exclusive hiring hall had been in operation or that the Respondent Union had asserted any right to operate a hiring hall Consistent with the terms of this first remand, a supplementary hearing was held before Administrative Law Judge Dyer on the matter of whether the Union , in fact , operated a legitimate exclu- sive hiring service . The Board 's disaffirmanee of Judge Dyer's supple- mental decision , at 235 NLRB 826 (1978). led to the second remand from the First Circuit , 590 F 2d 15 (1978), which the Board ultimately accept- ed The Board's backpay decision in Duron Maguire, which contains a final historical recitation, is at 265 NLRB 1255 (1982) 145 235 NLRB at 832. 663 hiring halls to be in violation of Section 8(b)(1)(A) and (2) of the Act absent any "objective criteria or standards for referral of employees" and where there is an attend- ant arrogation of "unbridled discretion" by those to whom the system is entrusted.148 Not only such objec- tive standards for referrals exist, but the Board also re- quires that a union's duty to represent work applicants fairly in the operation of its hiring hall also includes the obligation to give timely notice of any significant change in its referral procedures to those who use its hall.147 In the present matter, UIW, although asserting its con- tractual claim to exclusively refer employees for employ- ment to LDC's Cairo facility and ACT's Louisville facil- ity, had neither a hiring hall nor a formal referral proce- dure-just the type of situation proscribed by the above- cited authority. There was no evidence that anyone ever had been referred through whatever system UIW may have proclaimed . Absent the existence of a hiring hall and of formal referral procedures, there is no way that the "objective criteria or standards" and the absence of "unbridled discretion," required by the Board of those who make work referrals, can be maintained or verified. Although Duron Maguire, supra, and the other author- ity cited above where unlawfully operated hiring halls were found , were cases brought against unions, public policy precludes a finding that LDC and ACT had vio- lated Section 8(a)(1), (3), and (5) by their failure to use UIW's nonexistent, unstructured referral system which, in present form, appears to stand in violation of the Act. Accordingly , I would dismiss allegations of the com- plaint in Case 9-CA-17553-1-2-3 that allege that LDC and ACT had refused to bargain in violation of Section 8(a)(5) and (1) of the Act by hiring the above-named 15 employees at Cairo and Louisville, respectively. Also, since, in any event absent formal referral procedures, it could not be possible to meaningfully determine which work applicants, if any, might have been available to fill those 15 vacancies on referral from UIW, there is no basis for a finding of discrimination within the meaning of Section 8(a)(3) and (1) of the Act.148 146 Plumbers Local 198 (Jacobs/Wiese), 268 NLRB 1312 fn. 1 (1984) 147 See Operating Engineers Local 406 (Ford Construction), 262 NLRB 50, 51 fn. 6 (1982 ), where the Board emphasized the need for referral procedures by holding that the union 's failure to give timely notice of a significant change in such procedures was violative of Sec 8(b)(1)(A) of the Act 148 In dismissing the above allegations, I do not rely on the Respond- ent's other arguments Had UIW's hiring halls been viable and structured to ensure that referrals would be made objectively, its past failures to insist on rigid enforcement of the hiring hall provisions of the agreement would not mean that it permanently had waived its contractual rights Peerless Publications, 231 NLRB 244, 258-259 (1977); Murphy Diesel Co, 184 NLRB 757, 763 (1970), enfd 454 F 2d 303 (7th Cir 1971) Here the union had asserted its claim during the contract term , and "a right once waived is not necessarily lost forever " Murphy Diesel Co, supra Fur- ther, although large numbers of employees had been hired without re- course to the hiring hall by LDC and ACT outside the 10(b) period, the 15 employees alleged in the complaint to have been unlawfully so hired were all taken on after April 11, 1981, and , therefore. were hired within the 10(b) period Unlike Machinists Local 1424 (Bryan Mfg.) V. NLRB, 362 U S 411, 417 (1960), this was not a situation where conduct occur- ring within the limitations period "can be charged to be an unfair labor practice only through reliance on" an earlier unfair labor practice occur- ring outside the 10(b) period, since , as noted, the disputed 15 hirings all Continued 664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD H. Unilateral Introduction of Health and Welfare Plan-Case 9-CA-17553-1-2-3 1. The facts The parties stipulated that, effective approximately September 1, 1980, ACT implemented a new additional medical and life insurance program for bargaining unit employees employed at its Louisville facility. The Gen- eral Counsel and UIW contend that these plans were unilaterally implemented without notice to or bargaining with the Union. The Company asserts that the plan was later agreed to by the Union. Union Representative Worley testified that during a visit to ACT's Louisville facility on or about March 10, 1981, he first learned of the above new insurance pro- grams when he observed a document on the bulletin board headed "American Commercial Terminal-Louis- ville" and entitled, "A Summary of Your Life & Medical Benefits." This posted notice listed benefits then avail- able to employees under coverages for life insurance, ac- cidental death and dismemberment, weekly indemnity in- surance re disability, for hospital and surgical expenses, respectively, and for in-hospital doctors' visits. Worley related that he took the paper from the bulle- tin board, showed it to Operations Manager Gray, and asked what it was . Gray took the notice from him and reassured Worley that it did not apply to the hourly em- ployees Worley whom represented, but related only to salaried employees or supervisors . Worley avowed that before this conversation with Gray, he had not seen the notice of new benefits in question, and had not discussed medical and life insurance programs with Gray or with any other ACT official. 149 Billy James, Jr., employed by ACT at the Louisville facility, testified that the first time he saw the notice of insurance benefits described by Worley was in May 1981, when his foreman, John Doss,150 handed him a copy of this benefits summary in the presence of employee Jack Voyles. Doss told James that the notice was the Compa- ny's insurance policy covering him, and he gave James an insurance card. Doss reassured James, in answer to his inquiry, that the Company was not going to take money from the employees' checks toward the cost of the insurance. occurred within the limitations period See Peerless Publications, 231 NLRB at 245-246; Farmingdale Iron Works, 249 NLRB at 98-99 Finally, had the Respondents refused to use actually extant appropriately struc- tured UIW hiring halls, the contractual grievance-arbitration machinery, which the parties, in any event, had ignored , would have been inapplica- ble as the Respondent's conduct would have constituted a repudiation of the contract and rejection of the bargaining principle where deferral to arbitration is deemed inappropriate. See United Technologies Corp, 268 NLRB at 560 Under the present circumstances, these considerations need not be reached 149 By the terms of art VI, sec 6, of the master agreement , LDC and, later, ACT, as well, agreed to contribute a specified sum per employee per day for each day worked by each employee to the United Industrial Workers of North America and Welfare and Pension Plan. While welfare benefits available under the contractual UIW plan were not comparative- ly developed , it is undisputed that the benefits announced by ACT in the posted notice represented a change from preexisting employee insurance 150 Both James and Doss were referred to above in the discussions concerning ACT's failure to deduct and remit union dues As noted, Doss was promoted to foreman in April 1981. In this capacity , he became James' supervisor. ACBL Vice President Kilroy testified that he had met with Worley on a matter unrelated to insurance on No- vember 3, 1980. At the conclusion of this meeting, Worley told Kilroy that ACT-Louisville had not been making contributions to the UIW health and welfare plan. Kilroy replied that this was correct; the Company had stopped contributing to the UIW health and welfare plan in July 1980 when the employees went out on strike. He told Worley that those who since had been brought in as new employees and as striker replacements were covered under a company health and welfare plan. Kilroy explained that this had been done to avoid any problems such employees might have in presenting claims under the UIW program. Worley demanded that company contributions to UIW's health and welfare plan be resumed, telling Kilroy that if he wanted to pay double to keep those people on the company health and welfare plan, that was fine, but the Union wanted its contractual contributions per man per day for every unit member. Accordingly, Kilroy then agreed to make con- tributions to the UIW plan, while also keeping the com- pany plan in effect. The parties agree that company con- tributions to the UIW plan thereafter resumed in Decem- ber 1981 or January 1982, ending the hiatus in such pay- ments that had begun the preceding July. Kilroy testified that at the November 3 meeting, Worley did not request and he did not furnish a copy of the medical and life in- surance plans. Kilroy also did not discuss the plans with Worley in detail, and did not say when they had become effective. Nonetheless, according to Kilroy, Worley agreed to the simultaneous maintenance of both plans on the understanding that ACT would resume contributions to the relevant UIW fund. ACT, therefore, asserts that UIW, on November 3, had agreed to the continued ap- plication of the company plan to employees on a dual basis in consideration of resumed contributions to the UIW welfare and pension plan. 15 1 The General Counsel and Union maintain that Wor- ley's first knowledge of the introduction of the company plan, and, thus, UIW's came in March 1981 when he dis- cussed the posted benefits summary with Gray. Discussion and Conclusions Although pension, health and welfare plans provided for by an expired collective -bargaining agreement consti- tute an aspect of employee wages, a term and condition of employment that services expiration of the contract, and are mandatory subjects of bargaining not subject to unilateral change by a party, 152 in the present matter it appears that ACT and UIW on November 3, 1980, reached an accord regarding the conditions under which the Company's insurance program could be implement- ed. This occurred when Worley, for UIW, agreed to Kil- roy's proposal that ACT agreed to Kilroy's proposal that ACT resume contributions to the contractual UIW health and welfare plan while, at the same time, ACT would continue to maintain and apply to unit employees 151 ACT does not assert that it notified UIW and bargained before im- plementing the company plan for all Louisville unit employees. 152 Peerless Roofing Co, 247 NLRB 500, 503 (1980); Hen House Market, 175 NLRB 596 ( 1969), enfd 428 F.2d 133 (8th Cir 1970) AMERICAN COMMERCIAL LINES the company medical and life insurance plans initially ef- fectuated on September 1, 1980. Pursuant to the Novem- ber agreement, the Company, within the next 2 months resumed its discontinued contributions to the UIW health and welfare fund and generally carried out the terms of this new understanding.'53 It is settled that when a union has sufficiently clear and timely notice of an employer's plan to change a mandatory subject of bargaining and thereafter makes no protest or effort to bargain about the plan, it waives its right to complain that the employer acted in violation of Section 8(a)(5) and (1) of the Act.'54 Here, in exchange for resumed employer contributions to the UIW health and welfare fund, Worley, on No- vember 3, 1980, agreed to the concurrent implementation of both the company and UIW health and insurance plans, although he neither had requested nor received any details concerning the company-implemented bene- fits. As Administrative Law Judge Pannier held in his Board-approved decision in Lange Co., supra at 564: [O]nce the employer notifies a representative of a decision affecting employees which the latter repre- sents, the burden is upon the representative to indi- cate whether it wishes to pursue the matter by ob- taining further details and by bargaining with the employer concerning the matter. The Company's insurance program was introduced while the collective-bargaining agreement was still in effect and, as there had been no notice to or bargaining with UIW before its original implementation, the insur- ance program when put in place in September 1980 was an unlawful unilateral midterm modification of the con- tract, in violation of Section 8(a)(1) and (5) of the Act. Had that situation continued unchanged into the 10(b) period, the Company's insurance program would have been violative.155 However, in November 1980, while 15°' In crediting Kilroy's account of the November meeting with Worley, it is noted that Kilroy's recollection in this area appeared superi- or Worley experienced difficulty even in remembering events leading to the November meeting Kilroy testified that the November meeting had its genesis on June 17, 1980, at the Federal courthouse in Louisville, when Worley had requested a meeting to discuss a production related problem and a UIW proposal to have 20 cents an hour deducted from employees' wages so that they could be covered under a major medical plan. Kilroy had agreed to such a meeting at the time as he wanted to discuss with Worley some of the claims problems the employees were having under the UIW plan By letter, dated July 3, 1980, to Worley, Kilroy referred to their June 17 agreement to confer and suggested July 14 as the meeting date. Although Worley and Kilroy met several times thereafter, the matters in question were not discussed until November 3 Until Worley's recollection was refreshed by Kilroy's July 3 letter, he initially could not recall his June 17 conversation with Kilroy , or that a meeting had been set up. Not less compelling is the extreme unlikelihood that ACT would have undertaken the double expense of concurrently paying for two employee insurance programs in the absence of an agree- ment with the Union to that effect 154 Print-Quic, 262 NLRB 857, 861 (1982), Lange Co., 222 NLRB 558, 563 (1976), citing Ladies Garment WorAers Y. NLRB, 463 F.2d 907, 918 (D C Cir 1972). 155 As it has been found from the credited evidence that UIW, through Worley. first learned of ACT's insurance program on November 3, 1980, starting the running of the 10(b) period , a charge would have to have been filed on or before May 3, 1981. The charge here was filed on October 15, 1981 665 still outside the 10(b) period, Kilroy and Worley reached their agreement that the Company could continue its own insurance plans for employees on a basis of double coverage by resuming contributions to the UIW health and welfare fund . This agreement has governed the par- ties' understanding of the health and insurance benefits to be provided to unit employees during the entire cogniza- ble 10(b) period, thereby superseding and rendering moot the earlier violative conduct which is time-barred. Having found that the Company and Union had had an understanding since November 1980 concerning em- ployee insurance benefits, little weight need be given to arguments by the General Counsel and Union that Gray's March 10, 1981, misstatement to Worley, that the posted summary of company-provided benefits applied only to nonunit personnel, tolled the 10(b) period after that date so as to bring the entire incident within the period of limitations. Worley, in real terms, had not been misled as when Gray made his incorrect statement as Worley and Kilroy had been in agreement on dual cov- erage for 5 months and UIW had been collecting re- sumed ACT contributions to its health and welfare fund based on this arrangement . Also, there is no evidence that ACT, since November 1980, had changed its insur- ance program from that then agreed to by Worley. Pacif- ic Intercom Co.,156 and Burgess Construction Corp.,'57 cited by the General Counsel and Union as authority for tolling the 10(b) period, are inapposite as here, unlike those cases, from the credited evidence, there was no fraudulent concealment of the Company insurance pro- gram and its application to unit employees before agree- ment on dual plan coverage was reached , and UIW's failure to obtain information concerning the Company plan at that time was its own fault. In these circum- stances, Gray's later inaccurate statement to Worley did not affect the existing agreement and does not provide grounds for tolling the 10(b) period. For the above reasons, I find that ACT did not violate Section 8(a)(5) and (1) of the Act by unilaterally imple- menting a company medical and life insurance plan among bargaining unit employees during the 10(b) period.15 8 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondents ACBL, ITC, ACT, and LDC, and Respondent SIU, set forth in section III, above, found to constitute unfair labor practices ocurring in connection with the operations of the Respondent Companies described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. 155 255 NLRB 184 (1981). 157 227 NLRB 765 (1977), enfd 596 F.2d 378 (9th Cir 1979). 150 Also see Talbert Mfg, 264 NLRB 1051 fn 1 1054-1055 (1982): Print-Quit, supra 666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. American Commercial Barge Lines Company, Inland Tugs Company, American Commercial Termi- nals, Inc., and Louisiana Dock Company, Inc., are em- ployers engaged 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 United Industrial Workers of North America of the Seafarers' International Union, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO are labor organizations within the meaning of Section 2(5) of the Act. 3. The following three separate units each constitute units appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All head captains, deckhands, cooks, trainee engi- neers and tankermen employed by Inland Tugs Company-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 operators, nor to crews of towboats of subsid- iary or affiliated companies. All engineers and assistant engineers employed by Inland Tugs Company-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 em- ployees. This recognition shall not apply to bare- boat charters to other operators, nor to crews of towboats of subsidiary or affiliated companies. All chief engineers, head deckhands, deckhands, cooks, trainee engineers, and tankermen employed by Inland Tugs Company-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 em- ployees. This recognition shall not apply to bare- boat 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 Water District, AFL- CIO is now, and at all times material herein has been, the exclusive representative of all the employees in the afore- said appropriate units for purpose of collective bargain- ing within the meaing of Section 9(a) of the Act. 5. The following unit is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by Louisiana Dock Company, Inc., and American Commerical Termi- nals, Inc., at their Harahan and Westwego, Louisi- ana, fleeting and repair facilities ; their Cairo, Illi- nois, fleeting and repair facilities ; their Hennepin, Il- linois, barge cleaning and unloading facility; and the coal transfer and manhole product facilities located at American Commercial Terminals, Inc., in Louis- ville, Kentucky, excluding office clerical employees, professional employees, guards and supervisors, as defined in the Act. 6. United Industrial Workers of North American of the Seafarers' International Union Atlantic , Gulf, Lakes and Inland Waters District, AFL-CIO is now, and at all times material has been , the exclusive representative of all the employees in the aforesaid appropriate units for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 7. ACBL and ITC, by avoiding the use of SIU's exclu- sive referral system when hiring bargaining unit employ- ees, have unilaterally altered the terms and conditions of the applicable collective-bargaining agreement with SIU and have repudiated the hiring hall provisions of that contract in joint and several violations of Section 8(a)(5) and (1) of the Act. 8. ACBL and ITC, by evading the use of SIU's exclu- sive contractual referral system in directly hiring bar- gaining unit employees, as described above, have dis- criminated against work applicants registered at SIU's exclusive hiring hall and available for referral to their employ, in joint and several violation of Section 8(a)(3) and (1) of the Act. 9. SIU, by failing and refusing since September 22, 1980, to provide ACBL and ITC with duly-requested access to information relevant and necessary to the col- lective-bargaining process has been in violation of Sec- tion 8(b)(3) of the Act. 10. ACT, by unilaterally failing to honor the dues-de- duction authorizations of unit employees and by failing to disburse such dues to IUW in accordance with the terms of the applicable collective -bargaining agreement with that Union, is in violation of Section 8(a)(5) and (1) of the Act. 11. ACT and LDC, in failing and refusing to accede to UIW's requests to enforce the union -security clause of their collective-bargaining agreement are in joint and several violations Section 8(a)(5) and (1) of the Act. 12. The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 13. The respective Respondents did not violate the Act in any other manner except as specifically found herein. THE REMEDY Having found that the Respondents ACBL, ITC, LDC, ACT, and SIU, respectively, have engaged in, and are engaging in certain unfair labor practices affecting commerce, I shall recommend that they be required to cease and desist and to take certain affirmative action in order to effectuate the policies of the Act. It has been found in Case 9-CB-4736 that SIU violat- ed Section 8(b)(3) of the Act by refusing to furnish cer- tain necessary and relevant hiring hall records requested for examination by ACBL on behalf of itself and ITC. The first specific, updated request for such data found appropriate is contained in ACBL vice president Kilroy's July 6, 1981, letter to SIU where he is unsuccessfully AMERICAN COMMERCIAL LINES asked for inspection of all hiring hall records at SIU's halls at Jeffersonville, Indiana, Paducah, Kentucky, New Orleans, Louisiana, and St. Louis, Missouri, including, but not limited to registration cards, daily activity re- ports, job orders, clinic cards, job calls, and SIU comput- er printouts listing registrants at all locations . It has been found above that these Companies are entitled to review such previous refused information. Having defined the type of hiring hall information to which these Companies are entitled, it is noted that in the intervening time since the Companies' demands, the Jeffersonville and Paducah hiring halls have been closed, other relevant halls may have opened, and other consid- erations may have changed. Therefore, I would defer to the compliance stage of this proceeding for determina- tion of the relevant hiring hall locations normally used by ACBL and ITC and the time periods for which nec- essary and relevant referral system records must be pro- duced. Having found in Cases 9-CA-16993 and 9-CA-17418 that ACBL and ITC had unlawfully hired 16 employees in opposition to its contractual obligation to use SIU's exclusive hiring hall-viz, James F. Hyden, Ronald, Coutler, Eddie L. Brandenburg, Robert E. Orwick, Robert E. Whipple, Howard D. Hardie, Samuel Carl Isaacs, Harold Kingsmill, Nauyen Tai Tu, Gerald Lee Babb, Morty Olsson, Bobby Hicks, J. N. Nimon, Thomas Entwhistle, Johhny Ray Goldman , and Jim Wilson-on the above-designated dates, these Companies should be and severally required to make whole those work applicants who would have been referred to them for employment through SIU's hiring halls were it not for these Companies' unlawful conduct. Backpay is to be computed in a manner consistent with Ogle Protection Service,159 with interest thereon as set forth in Florida Steel Corp., 180 In addition, because of their failure to abide by the terms of the contractual hiring hall provi- sions by hiring work applicants who had been registered for referral at their exclusive hirings, instead of the 16 above-named employees, the Companies should be re- quired to make whole the appropriate fringe benefit trust funds for losses suffered by reimbursing these funds to the extent that contributions would have been made on behalf of those who would have been referred to work were it not for the Companies' unlawful failure to use SIU's hiring halls on the above-stipulated dates when the 16 above-named employees were directly hired.161 159 183 NLRB 682 (1970) 160 231 NLRB 651 ( 1977) See, generally, Isis Plumbing Co, 138 NLRB 716 (1962) 161 Because the provisions of employee benefit agreements are variable and complex, the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlawfully with- held fund payments. I leave to the compliance stage the question whether Respondents ACBL and ITC must pay any additional amounts into these 667 Having found in Case 9-CA-17503 that ACT and LDC have violated the Act, jointly and severally, by re- pudiating the union-security agreement in the contract with UIW. I shall recommend the issuance of the cus- tomary cease-and-desist order . However, as the collec- tive-bargaining agreement has expired, an order that pro- vided for the discharge of employees who did not pay back dues through to the August 19, 1981, contract expi- ration date, would, in effect, compel those Companies to reinstate the union-security agreement . This would be contrary to the policies of the Act.162 For this and for other reasons set forth in California Blowpipe & Steel Co., supra, a discharge remedy, in the absence of an agree- ment, does not seem appropriate and is not granted. It also is not appropriate to reimburse UIW for any loss of dues resulting from the Companies' unlawful refusal to implement the contractual union-security agreement as the Board has ordered dues reimbursement only where, unlike here, employees have individually signed dues- checkoff authorizations. 16 3 However, UIW's claim in Case 9-CA-16703 for back dues on behalf of John Doss and Joe Knight, whose dues-deduction authorizations ACT had unilaterally ceased to honor, is distinguishable from the above find- ing in Case 9-CA-17053 concerning the 14 employees who had not complied with the union-security clause, where back dues were not applicable . Unlike those em- ployees, the dues-deduction authorizations signed by Doss and Knight, which neither had properly revoked, created an obligation on ACT to withhold dues from their wages and to pay such moneys to UIW. Therefore, ACT should be required to reimburse UIW for Doss dues accruing from October 6, 1980, when he returned to work after the strike, until April 15, 1981, when he left the bargaining unit to become a supervisor. ACT, likewise, should reimburse UIW for Knight's dues, also from his October 6, 1980, return , until August 19, 1981, when the contract expired . Interest shall be paid on these nonwithheld union dues in the manner set forth in Flori- da Steel Corp.164 [Recommended Order omitted from publication.] benefit funds in order to satisfy the Board's "make whole" remedy These additional amounts may be determined , depending on the circumstances of each case, by reference to provisions in the documents governing the funds at issue and, where there are no governing provisions , to evidence if any loss directly attributable to the unlawful withholding action, which might include the loss of return on investment of the portion of funds withheld, additional administrative costs, etc, but not collateral losses Merryweather Optical Co, 240 NLRB 1213 (1979), Campo Slacks, 266 NLRB at 501. 162 California Blowpipe & Steel Co, 218 NLRB at 755. 'ea California Blowpipe & Steel Co., supra at 754; Ogle Protection Serv- ice, supra at 682 164 231 NLRB at 651 Also see Fitzpatrick Electric Inc, 242 NLRB 739 (1979) Although ACT is primarily liable for the back dues of Doss and Knight, LDC has a secondary liabiity as an employer of employees within the affected unit