American-West African Lines, Inc.

In the Matter Of AMERICAN-WEST AFRICAN LINES, INC. and MARINE ENGINEERS' BENEFICAL ASSOCIATION Case No. C-1143.-Decided March 18, 1940 Water Tianspoitation Industry-Jnlnrference, Restraint, and Coercion: em- ployer statements advising applicants for employment and employees of require- ment of membership in union with which a valid closed-shop agreement has been made, and adN icing applicants to apply through contracting union, held not to constitute, employer requirement with assent of contracting uriiori that applicants for employment apply through hiring hall of such union, a proper administrative device for facilitating performance of valid closed-shop agree- ment; employer refusal to issue passes for boarding vessels to rival labor organization while granting them to union having valid close-shop agreement, held to constitute-Proviso Clause of Section 8 (3) Construed: proviso clause is permissive in character, and where its terms are met renders legal, in so far as the Act otherwise would render illegal, making and performance of closed-shop agreement; proviso clause does not provide or allow rendering of assistance or support, or favoritism, to labor organization having valid closed-shop agreement, beyond that existent in conditioning employment on union membership-Closed- Shop Contract: made with lawful labor organization representing majority of employees in each of appropriate collective bargaining units, valid ; covering licensed deck officers, each of which classification constitutes a distinct appro- priate collective bargaining unit, satisfies requirement of proviso to Section 8 (3) that contract be with representative of employees "in the appropriate col- lective bargaining unit covered by such agreement when made," since contract- ing union was statutory representative of employees in each of the units; made with 'legitimate labor organization which was statutory representative when negotiations were begun but which possibly lost such status 11' days later when contract was signed because of possible majority defection in unit to rival union, may be relied upon by employer as defense to charges of unfair labor practices, since employer at beginning of negotiations was shown proof of contracting union's statutory status, had no knowledge of possible defection before signing contract, and knew only of previous unsupported claim of rival union to exclusive representation; decision of Board in prior repre- sentation proceeding expressing doubt whether union having closed-shop agree- ment was statutory representative at time of execution and directing an election, but which election was never held, insufficient to preclude employer relying on contract as a defense in complaint proceeding-Labor Organization: where no showing that labor organization is established, maintained, or assisted by unfair labor practices, organization is presumed to be a lawful organization. Mr. Mark Lauter, for the Board. Mr. Herman Goldman, by Mr. Harry G. Liese, of New York City, for the respondent.- Mr. Edward Patrick Trainer, of New York City, for the M. E. B. A. 21 N. L. R B., No. 71. 691 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Bert L. Todd and Mr. Herbert J. De Varco, of New York City, for the U. L. O. Mr. Ralph Winkler, of counsel-to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended and second amended charges duly filed by National Marine Engineers' Beneficial Association,' herein called the M. E. B. A., the National Labor Relations Board, herein called the Board, by Elinore M. Herrick, Regional Director for the Second Region (New York City), issued its complaint dated March 26, 1938, against American-West African Line, Inc.,2 New York City, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, accompanied by notice of hearing, was duly served upon the respondent, upon the M. E. B. A., and upon United Licensed Officers of the U. S. A.,3 herein called the U. L. 0., the labor organization mentioned in the complaint. On October 21-, 1938,' upon a third amended charge duly filed by the M. E. B. A. and E. P. Trainer, its business manager, the Board by the Regional Director issued its amendment to the complaint, a copy of which together with a copy of the third amended charge was duly served on each of the parties upon whom service of the complaint was had and upon International Longshoremen's Association, a labor organization, herein called the I. L. A. At the hearing, mentioned below, the com- plaint, as amended, was further, amended. With respect to the unfair labor practices the complaint, as amended, alleged in substance that the respondent (1) at stated times in September and October 1937 and January and July 1938 dis- charged four named employees 4 and refused to employ three other named persons 5 because they joined and assisted the M. E. B. A. This is the correct designation of the union referred to in the record as Marine Engi- neers' Beneficial Association. 9 This is, the correct designation of the ies(iondent. 3 This is the correct designation of this labor organization 4 The names of these persons are. Max Block , Edward Hannon, Joseph Schackelford, and Henry Wing 'The names of these persons are : Robei t Fredden , E W Hanson , and F B Kenner. E W. Hanson is also referred to in the record as Edwin W Hansen, Edwin W Hanson, and Edwin Hanson. AMERICAN-WEST AFRICAN LINES, INC. 693 and would not become members of the U. L. 0., thereby discriminat- ing in regard to the hire and tenure of employment of these individ- uals, within the meaning of Section 8 (3) of the Act; (2) after July 23, 1937, urged, persuaded, and warned its employees to refrain from becoming or remaining members of the M. E. B. A.; (3) after said date threatened its employees with discharge and other reprisals if they became or remained members of the M. E. B. A., and did not become members of the U. L. 0.; (4) after said date refused to issue permits to the M. E. B. A.; (5) after said date announced that it would enforce and has enforced a purported closed-shop agreement illegally entered into with the U. L. 0.; (6) after said date has kept under surveillance the meetings and meeting places of the M. E. B. A. members employed on vessels of the respondent; and (7) by the afore-mentioned and other acts, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. On April 5, 1938, the respondent filed an answer to the complaint and on October 27, 1938, an answer to the amendment to the com- plaint, which was amended at the hearing. In these pleadings the re- spondent admitted that it refused to issue permits to the M. E. B. A. but denied all other acts alleged in the complaint, as amended. The respondent averred as a separate defense that at all times mentioned in the complaint and amendment thereto the respondent was party to a closed-shop agreement with the U. L. 0., made by it in the belief that the U. L. O. represented a majority of its employees in the en- gineering department of its vessels; that in certain proceedings begun by the M. E. B. A. before the Board for certification of the M. E. B. A. as the exclusive bargaining representative of the respondent's en- gineers, the Board after directing an election postponed indefinitely the holding thereof. On April 21,1938, upon due notice to the respondent, the M. E. B. A., and the U. L. 0., proceedings for the purpose of taking depositions herein were begun before a duly designated representative of the Board. On May 27, June 14, June 15, and July 19, 1938, upon due notice to the said parties and to Local No. 1550 of the I. L. A., fur- ther proceedings for the taking of depositions were had. The Board, the respondent, and the M. E. B. A. attended and participated in all said proceedings; the U. L. 0., in all except that of June 15. The depositions -then taken, together with the exhibits then introduced, have been made, part of the record herein. Pursuant to notice a hearing was held at New York City on Octo- ber 27, 1938, before I. L. Broadwin, the Trial Examiner duly desig- nated by the Board. The Board, the respondent, the M. E. B. A., and the U. L. O. were represented by counsel or by their representa- 2R3042-41-vol 21-45 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded the respondent, the U. L. 0., the M. E. B. A., and the Board. During the hearing the respondent and counsel for the Board stipu-: lated and agreed that for the purposes of the instant case the Board may consider the record, including the testimony, in certain repre- sentation proceedings had before the Board entitled Matter of Ameri- can-West African Line, Inc. and National Marine Engineers' Bene- ficial Association,° Case No. R-280, decided January 20, 1938, herein called Case No. R-280. No objection thereto was made by any other party. At the close of the case the respondent moved to dismiss the complaint, as amended, for want of sufficient proof of the allega- tions thereof, and because the respondent's acts were lawful by virtue of a valid closed-shop agreement. The Trial Examiner denied this motion in his Intermediate Report, mentioned below. Both the Board and the respondent moved to conform the pleadings to the proof, which motions the Trial Examiner granted. The Trial Examiner made various rulings on other motions and on objections to the ad- mission of evidence. The Board has reviewed the afore-mentioned rulings of the Trial Examiner and finds that no prejudicial errors were committed. On January 25, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the respondent, upon the U. L. 0., and upon the M. E. B. A., in which he found that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act; and recommended that the respondent cease and desist from the unfair labor practices which he found and .that it take certain affirmative action to remedy the situation brought about by such unfair labor practices. The Trial Examiner further recommended that the allegations of the complaint, as amended, relating to Hannon and Schackelford; be dismissed, on the ground that the termination of their employment was by their own voluntary action, for causes unrelated to union membership and activity, and that the allegations as to Kenner be dismissed, for want of proof. Although the M. E. B. A. filed no exceptions to tha Intermediate Report, we have reviewed the record with respect to Hannon, Schackelford, and Kenner, and are of the opinion that the Trial Examiner's recommendation should be sustained.7 Accordingly, we shall dismiss the allegations of the complaint, as amended, in re- gard to these three individuals. 6 Matter of American-West African Line, Inc and National Marine Engineers' Beneficial Association, 4 N L. R B 1086, ° See Matter of National Supply Company and Steel Workers Organizing Committee, 16 N L R. B. 304. AMERICAN-WEST AFRICAN LINES, INC. 695 Thereafter the respondent and the U. L. O. each filed exceptions to the Intermediate Report. Pursuant to notice a hearing for the purpose of oral argument was held on April 21, 1939, before the Board in Washington, D. C. The respondent., the U. L. 0., and the M. E. B. A. appeared by counsel or their representatives and par- ticipated in the hearing. Briefs have been submitted by the re- spondent and the U. L. O. Subsequent to said hearing the U. L. O. lodged with the Board for the purpose of filing herein a certain docu- ment entitled, "Petition from the Officers employed in the American- West African Line Vessels to National Labor Relations Board," to- gether with certain papers in connection therewith. For reasons stated by the Board during the hearing on oral argument when a similar tender of such document was made, the filing of said docu- ment and papers is hereby denied. On April 25, 1939, the M. E. B. A. lodged with the Board for the purpose of filing herein a certain affidavit by Henry Wing, one of the persons mentioned in the com- plaint, as amended, setting forth that said person has not been re- employed by the respondent since July 7, 1938. Said affidavit is here- by incorporated as part of the record herein. The Board has considered the exceptions to the Intermediate Re- port and, save where inconsistent with the findings, conclusions, and order set forth below, finds them to be meritorious. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, American-West African Line, Inc., a New York corporation, is engaged in the business of transporting freight on ships sailing from New York City, Boston, Baltimore, Norfolk, Nev, Orleans, and Port Arthur, and from other ports on the east coast of the United States and the Gulf, to ports in Africa. The ships also make calls at ports in the Azores and the Canary Islands. New York City is the home port for the vessels, and the respondent's offices are there located. The respondent operates seven vessels in its service. Chief engi- neers and assistant engineers of different rank are employed by the respondent on each of its ships. We find that the respondent is engaged in traffic, commerce, and transportation among the several Sates and between the United States and foreign countries, and that the licensed marine engineers and licensed deck officers of the respondent aboard its vessels are directly engaged in such traffic, commerce, and transportation. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE ORGANIZATIONS INVOLVED National Marine Engineers' Beneficial Association is a labor organ- ization, affiliated with the Congress of Industrial Organizations, ad- mitting to its membership licensed marine engineers employed by the respondent. United Licensed Officers of the U. S. A. is a labor organization, unaffiliated with any national or other labor organization, admitting to its membership licensed marine engineers and licensed deck officers of the respondent. III. THE UNFAIR LABOR PRACTICES A. The alleged discrimination in regard to the refusals to hire Han- son and Fredden, and to the discharges of Wing and Block, and the alleged attendant interference, restraint, and coercion On July 23, 1937, the respondent and the U. L. O. entered into a collective agreement covering wages and working conditions of all licensed marine engineers and licensed deck officers employed on vessels operated by the respondent. By express provision thereof the respondent recognized the U. L. O. as the exclusive collective bar- gaining representative of these employees. The agreement further provided : It is agreed that all licensed deck and engineer officers serving in positions as such on board vessels of the Company shall be members of the . . . [U. L. 0.]; provided, however, that re- fusal by the . . . [U. L. Oil to accept for membership any man shall not act as a bar to his appointment in a position as licensed Officer in the ... [respondent's] employ. In case of emergency, if no member of the ... [U. L. 0.] is available to fill a vacancy, a temporary officer may be secured without regard to the foregoing, but such officer shall be replaced by an Officer regularly in the ... [respondent's] employ upon the first opportunity. The agreement was to expire on July 23, 1938. At that time the contract was renewed for a period of 1 month and has since been renewed from month to month pending decision of the Board herein. Prior to July 23, 1937, the respondent employed its licensed marine engineers through one Gledhill, its superintendent and port engineer at the New York City pier. Engineering officers who desired employ- ment on the respondent's line would apply to Gledhill for a position, and if they appeared suitable would have their names recorded on certain application forms which Gledhill kept. The union affiliation or non-union affiliation of the applicant was of no importance. When AMERICAN-WEST AFRICAN LINES, INC. 697 positions became available Gledhill would fill them with the appli- cants whose names had previously been recorded. On some occasions when suitable applicants were not on file, he would procure engineers through the local union hiring hall of the U. L. O. E. W. Hanson and Robert Fredden are licensed marine engineers and members of the M. E. B. A. On September 23, 1937, Hanson applied to Gledhill for a position on one of the respondent's boats then coming into port. On October 5, 1937, Fredden made a similar application of Gledhill. There is no showing that either officer had been or was in the employ of the respondent before or at the time he made his application. Gledhill informed each of the men that the respondent employed its licensed engineers through the U. L. O. and that he would have to become a member of the U. L. O. in order to obtain work with the respondent. Neither officer was then a mem- ber of the U. L. O. and did not thereafter affiliate himself with that organization. Max Block and Hewry Wing began working on the respondent's vessels in January 1935 and January 1936, respectively. From August 14, 1937, until their lay-off in July 1938, the two men were employed on the S. S. Perdu ay, a vessel owned by the respondent. Block was a licensed officer, junior second assistant engineer, and belonged to the M. E. B. A. Wing had an unlicensed position as oiler and was a, member of the National Maritime Union. On Novem- ber 18, 1937, while the Padrisay was in dock at Port Arthur, Texas, Wing was promoted to junior third assistant engineer, a licensed officer's position. In consequence, his membership in the National Maritime Union, which was a labor organization for unlicensed per- sonnel solely, terminated. Following his promotion Wing had a conversation with Captain Seay, the captain of the boat, in which Seay informed Wing of the afore-mentioned contract between the respondent and the U. L. O. and of the above-quoted provision therein relating to membership in the U. L. 0., and suggested that Wing join that organization. Wing did not heed this advice but on Novem- ber 22, 1937, affiliated himself with the M. E. B. A. On July 7, 1938, Wing was laid off and on July 9, 1938, the remainder of the licensed assistant engineers of the Padnsay, including Block, were laid off because of plans to "lay up" the ship for an indefinite period. On July 15, 1938, Captain Seay, in a conversation with Wing, in- formed Wing that he and Block "lost [their] chances" for work on any of the respondent's ships because they were not members of the U. L. O. On August 1, 1938, Block and Wing visited Captain Spar- row, the respondent's port captain then acting as port engineer with respect to personnel. Block asked Sparrow for work. Sparrow inquired whether Block was a member of the U. L. O. Although he 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not a member, Block answered that he was. Sparrow then stated that the respondent hired its men through the offices of the U. L. 0.8 Block did not seek a position through the U. L. O. Both Block and Wing never thereafter became members of the U. L. O. On Sep- tember 6, 1938, the Padnsay was sold to an Italian line. At the time of the hearing none of the licensed assistant engineers formerly em- ployed aboard that ship had been given other work by the respondent. The respondent contends that irrespective of what Captains Seay and Sparrow told Block and Wing about their respective employ- ment, the two engineers have never in fact been dismissed or dis- charged by the respondent; that the respondent considers them to be its employees, "standing by" for their regular turn at available work; that the respondent is not interested in the union affiliation of these two men; and that their failure to obtain work prior to the time of the hearing was attributable solely to the want thereof occasioned by the sale of the ship on which they had worked. Gled- hill testified in effect that the respondent withheld performance of the above-quoted provisions of the agreement of July 23, 1937, and renewals thereof, in their application to licensed marine en- gineers and licensed deck officers,9 who, like Wing and Block, were in the employ of the respondent at the time when the agreement was made.10 8 Both Seay and Sparrow also stated that M E B A members could not work for the respondent. We note that the immunity afforded employers under the proviso to Section 8 (3) of the Act, more particularly considered hereinafter , concerns agreements to require membership in a particular labor organization as a condition of employment, not nonmem- bership in a rival labor organization Gledhill, the respondent's superintendent and port engineer, evidently understood this distinction for he avoided any steps based upon mem- bership in the M. E. B . A However , testimony was adduced by the M E. B A to the effect that under its bylaws, marine engineers who are members of the M E B A. cannot be members of another union. While the record shows that in the situation here presented the bylaws were not strictly adhered to by the M. E B. A, Seay and Sparrow properly could have relied on this provision of the bylaws which they must be presumed to have known. Consequently, their statements referring to the Al E B A were equivalent to expressions of required membership in the U L O. and did not constitute unfair labor practices , if the requirement that employees belong to the U. L 0 constituted no unfair labor practice 'Gledhill testified : WITNESS. When we made this agreement [ on July 23 , 1937] I was not obligated or compelled to remove from any ship any engiueei or officer who is not a member of the U. L O. . . If an engineer as in my employ before we made this agree- ment with the U . L. O. and the U L 0 'aas not able to persuade him to loin the U. L. 0 it has nothing to do with Inc Q Have you discharged any engineer under those circumstances? A. No. 10 While there is some evidence to the effect that the U L 0 complained to the respond- ent because of the laxity with which the respondent performed its agreement to require licensed engineers to join or remain members of that organization , counsel for the U L O. at the oral argument before the Board frankly conceded that "as a matter of practicabil- ity, although we have a closed shop agreement, [the U L O. has ] . . not insisted on discharge of men who have been with the company a long time ei en if they didn't pay dues to us." AIIERICAN-WEST AFRICAN LINES, INC. 699 He further testified : WITNESS: I know that he [Block] was not on any boat [of the respondent at the time of the hearing]. Q. You knew he was one of the group that had gone off the Padnsay when it was sold to the Italian group? A. Yes. Q. Who else was laid off ? A. All engineers, except the chief,-the first, second, and third Junior Q. Has their [Block and Wing] union affiliation or non-affili- ation anything to do with whether or not they have been placed in new jobs? A. Not at all . . . Q. Do you still consider Mr. Block to be with you? A. He is not discharged. He is not dismissed. Q. Is Mr. Wing dismissed? A. No. . . . Q. Was anyone given any instructions to find out what the union affiliations of any of these men are? A. No. The above facts show that the respondent refused to consider the applications of Hanson and Fredden for prospective employment because the two men were not U. L. 0. members and had not made their applications through the U. L. 0. We presume that no reason other than the one then assigned by the respondent occasioned its refusal to consider the applications. Accordingly, unless this re- fusal was, by virtue of the contract of July 23, 1937, permissive con- duct under the Act, a matter hereinafter discussed, the respondent engaged in an unfair labor practice within the meaning of Section 8 (3) of the Act, and likewise within Section 8 (1).11 The statute protects an individual in his applying for employment against a refusal by the employer to consider his application because of union or non-union affiliation.12 The cases of Block and Wing stand on another footing. We are of the opinion that these officers were not discharged prior to the hearing, but continued to be employees awaiting their regular turn at active service after the Padnsay was "laid up." Their failure to obtain work between their lay-off in July 1938 and the hearing was attributable to the sale of their ship and not to their union mem- 11 See Matter of Wauni.beo Hills, Inc. and United Textile TVoi kers o f Anieiica, 15 N L. R. B 37, and'cases cited in footnote 5 thereof 12 Cf Matter of Waumbec Mills, Inc. and United Textile Workers of America, 15 N L. R. B. 37. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership.13 We find that the respondent did not discriminate in regard to the hire or tenure of employment of Block and Wing, as alleged in the complaint, as amended. However, the statements of Seay and Sparrow, although inoperative in their effect upon em- ployment, would constitute an unfair labor practice, within the meaning of Section 8 (1) of the Act, unless the existence of the contract of July 23, 1937, rendered such statements permissible. The contract of July 23, 1937, required that all licensed marine engineers and licensed deck officers serving in positions on board vessels of the respondent should be members of the U. L. 0. This provision was applicable to'persons like Hanson and Fredden seek- ing employment with the respondent. Section 8 (3) of the Act, in the proviso thereof, states : That nothing in this Act . . . shall preclude an em- ployer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in Section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made.14 In Matter of Williams Coal Company and United Mine Workers of America, District No. 23,15 the Board construed the proviso clause of Section 8 (3) as follows: The proviso is permissive in character, and where its terms are met renders legal, in so far as the Act otherwise would ren- der illegal, the making of and performance of a closed-shop agreement between an employer and a labor organization. How- ever, immunity is expressly withheld if the closed-shop agree- ment is one entered into with a labor organization which is not the designated collective bargaining representative of a majority of the employees in the appropriate collective bargaining unit covered by the closed shop, or with a labor organization which 19 At the oral argument before the Board, counsel for the respondent stated, "Wing, by the way, and it is not a part of the record because it happened since then, has been given a job within the last three weeks." Thereafter, Wing filed the affidavit, above mentioned, wherein he denied that he had been given such work. Assuming that counsel' s statement be inaccurate, we do not believe that any inference arises therefrom that Gledhill's testi- mony is untrustworthy. 14 Section 9 (a) of the Act provides : "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of em- ployment, or other conditions of employment . . .11 15 Matter of Williams Coal Company and United Mine Workers of America, District No. 23, 11 N. L. R. B. 579, 612-613. AMERICAN-WEST AFRICAN LINES, INC. 701 has been established, maintained or assisted by any action defined in the Act as an unfair labor practice.1e There is no showing that at the time it made the contract with the respondent, the U. L. 0. was a labor organization established, maintained, or assisted by any action defined in the Act or consti- tuting thereunder an unfair labor practice.17 We presume and we find that the U. L. 0. was then a lawful organization. As already stated the contract in question dealt with wages and other working conditions of both the respondent's licensed marine .engineers and its licensed deck officers on board the, respondent's vessels. The contract, therefore, covered employees precisely within two separate and mutually exclusive appropriate collective bargain- ing units, viz, a ,unit composed of the engineers and another of the deck officers. We have held in numerous cases that licensed marine engineers and licensed deck officers do not together comprise an appropriate bargaining unit, but constitute separate appropriate bargaining units.18 We find that at all times material herein the respondent's licensed marine engineers and its licensed deck officers on board its vessels constituted separate units, each appropriate for the purposes of collective bargaining and insuring to the respond- ent's employees the full benefit of their right to self-organization and to collective bargaining and effectuating the policies of the Act. However, the proviso clause to Section 8 (3) in granting an im- munity under the Act to the employer speaks of a single unit. It adverts to the agreement upon which the immunity rests as one made with a labor organization which is the exclusive collective bargaining representative "in the appropriate collective bargaining unit covered by such agreement when made." We are of the opinion that a contract, such as the one here involved, covering employees precisely within separate yet respectively appropriate bargaining units is, if made with the lawful and exclusive representative of the employees in each unit, in accordance with the terms of the proviso 16 Whether the contract of July 23 , 1937, was for a closed shop or, as the respondent seems to contend , merely for a preferential shop is immaterial to the issues herein 17 Cf. Matter of Foote Brothers Gear and Machine Corporation and United Office and Professional Workers of America, No . 24; Matter of Foote Brothers Gear and Machine Cor- poration and Amalgamated Association of Iron, Steel and Tan Workers of North America, Lodge No 2048, 14 N. L R. B. 1045; Matter of Pilot Radio Corporation and United Electri- cal & Radio Workers of Ainereca, 14 N L. R. B 1084 19 Matter of International Mercantile Marine Company, and its eabsidiaries and affiliates: American Merchant Lane, Panama Pacific Lane and United States Lines and Intei national Union of Operating Engineers, Local No 3, 1 N L. R. B 384; Matter of Panama Rail Road Company and Marine Engineers Beneficial Association , 2 N. L R . B 290; Matter of Grace Line, Iiac, and Panama Maal Steanrslnp Company and .National Marine Engineers' Benefi- cial Association, Local No. 33, 2 N L R B 369 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clause.19 It is immaterial that the parties to such a contract have incorporated into one instrument what could have been done in two.2O In Case No. R-280, above mentioned, representation proceedings were begun before the Board by the M. E. B. A. to determine. whether that labor organization or the U. L. O. was the exclusive collective bargaining representative of the respondent's licensed marine engi- neers. The M. E. B. A., the U. L. 0., and the respondent were party to those proceedings. On January 20, 1938, the Board issued a Decision and Direction of Election 21 wherein it directed that a secret ballot be taken as soon as convenient of the respondent's licensed marine engi- neers to ascertain whether they desired to be represented for collective bargaining by either labor organization or by neither. Thereafter, the holding of the election was postponed indefinitely and no election in pursuance of Direction has ever been held. In the Decision in that case, the Board found that the respondent's licensed marine engineers aboard its vessels constituted an appropriate collective bargaining unit. Plainly, this finding is not inconsistent with the finding above made that the licensed marine engineers and the licensed deck officers constituted two separate appropriate collective bargaining units. The Board further considered, in the Decision in Case No. R-280, whether the U. L. O. was the designated collective bargaining repre- sentative on July 23, 1937, of a majority of the respondent's licensed marine engineers. The Board did not inquire into whether the U. L. 0. was also at that time the designated representative of a majority of the respondent's licensed deck officers. In the Decision the Board stated that the evidence regarding representation of the engineers on July 23, 1937, was inconclusive, that there was "no clear showing that U. L. O. in fact represented such a majority at that time," 22 and, accordingly, directed the holding of an election. As above men- tioned, the election was never held. Although the record in Case No. R-280 has been made available by stipulation of the parties, nothing appears therein, or, for that matter, in the record herein, which re- moves the mentioned doubt. However, the record in Case No. R-280, considered in connection with the record in this case, shows the fol- lowing : prior to the making of the contract between the respondent 11 We do not consider the matter important, in so far as the validity of the contract under the proviso clause to Section 8 (3) is concerned, whether the parties to the contract viewed employees therein covered as constituting a single bargaining unit or two separate and mutually exclusive bargaining units 20 Cf. Matter of Oppenheimer Casing Company, a Corporation and United Packinghouse Workers of America, Local No. 75, through Packinghouse Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, 13 N. L. R. B. 500, where the unit covered by the contract with an exclusive representative became inappropriate sometime after the making of the contract 21 Matter of American-West African Line, Inc. and National Marine Engineers' Beneficial Association, 4 N. L. R. B. 1086. z Matter of American-West African Line, Inc. and National Marine Engineers' Beneftoiai Association, 4 N. L. it. B. 1086, 1089. AMERICAN-WEST AFRICAN LINES, INC. 703 and the U. L. 0., and on or about July 10, 1937, the U. L. 0. and the respondent began the negotiations which culminated in that agree- ment. In connection with these negotiations the U. L. 0. furnished the respondent an authorized membership list containing the names of all the respondent's licensed marine engineers and licensed deck officers who were then members of the U. L. 0., and tendered in con- nection therewith certain other documents consisting of dues receipts and membership applications of the U. L. 0. Being assured that the majority of its employees within each classification were members of the U. L. 0., the respondent went forward with the negotiations.23 We are satisfied, and we find, that on or about July 10, 1937, when the negotiations were begun, the U. L. 0. did have as members, and con- sequently did represent, for collective bargaining purposes a ma- jority of the employees in each classification. Concurrent with these negotiations, the M. E. B. A. sought to have the respondent recognize it as the exclusive bargaining agency of the licensed marine engineers. However, at no time prior to the making of the contract on July 23, 1937, did the M. E. B. A. submit to the respondent proof that it had been designated by a majority of the engineers as their bargaining representative. Indeed, before July 20, 1937, the M. E. B. A. could not have tendered evidence to that effect: 4 While on July 22, 1937, one day preceding the execution of the contract, the M. E. B. A. initiated the proceedings in Case No. R-280, the respondent had no knowledge thereof until after July 23. In sum, the respondent, after being afforded proof of the fact which then existed that the U. L. 0. represented a majority of the licensed marine engineers and a ma- jority of the licensed deck officers, proceeded to negotiate and there- after executed within a short time a contract in reliance upon that fact. We are of the opinion that the respondent properly could have assumed, when it signed the contract, that the U. L. 0. was the desig- nated collective bargaining representative of a majority of the engi- neers and deck officers. Although the M. E: B. A. was making a claim to representation of a majority of the engineers, the respondent was under no duty in the situation presented to credit that claim. Nothing in support of that claim was brought to its knowledge prior to the execution of the contract which challenged such an assumption. 23 The respondent 's vice president testified in Case No. R-280 that at the time of the negotiations the substantial majority of licensed marine engineers and licensed deck offi- cers in its employ had been hired through the U. L 0 hiiing hall 24 In support of its claim to having been designated piior to July 23, 1937, as bargain- ing representative by 21 of the respondent 's 36 licensed marine engxneeis on board the respondent 's vessels, the M E B. A in Case No R-280 introduced in evidence , as regards 9 of the 21, certain undated postcards authorizing it to act in that capacity , postmarked July 20, 1937, or thereafter, and signed by these employees Two of the persons signing these cards applied for membership in the M . E B A on July 15 and 16, 1937, respec- tively. The remainder of the employees who authorized the M E B. A to represent them did so prior to July 10, 1937. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While it is true that certain of the engineers affiliated with the U. L. 0. on and after July 20, 1937, designated the M. E. B. A. their collec- tive bargaining representative, thereby casting doubt upon the ma- jority representation of the U. L. 0. among the engineers when the contract was signed, this possible defection was not brought to the attention of the respondent. The respondent was not obliged to presume after July 10, 1937, and while negotiations were being had, that the U. L. 0. lost its designation by a majority of the engineers, a fact which we do not affirmatively find to have occurred. In so far as its responsibility under the Act was concerned, the respondent could legally assume the contrary. Further, we cannot find, upon the evi- dence before us, that the M. E. B. A. obtained a majority at any time, either before or after the execution of the contract with the U. L. 0. Under these circumstances, we are of the opinion that the respondent was entitled to rely, as a defense to the unfair labor practices alleged herein, upon its contract with the U. L. 0. We, therefore, find that the refusal of the respondent to consider the applications for employment of Hanson and Fredden for the reason that they were not U. L. 0. members and had not made their applications through the U. L. 0. was not forbidden by the Act. These conditions which the respondent attached to its hiring of em- ployees were in conformity with the undertaking contained in the contract of July 23, 1937. The requirement that prospective em- ployees make their applications through the U. L. 0. was a proper administrative device for facilitating performance of this undertak- ing. The statements of Seay and Sparrow above mentioned likewise were permissive under the Act. They constituted mere expressions of reference to the substance of the undertaking contained in the contract, the effect thereof upon employment, and the method of employment adopted by the respondent in pursuance of such under- taking. We shall dismiss the allegations of the complaint, as amended, in so far as they allege that the respondent refused to hire E. W. Hanson and Robert Fredden, and discharged Henry Wing and Max Block, in violation of the Act. As already stated, the contract of July 23, 1937, has been renewed periodically on a month-to-month basis The complaint was issued prior to July 23, 1938, and, accordingly, alleges no unfair labor practices with respect to the execution or performance of the renewal contracts. While this would not necessarily preclude the trial of such an issue at the hearing,25 we are not entirely satisfied that in "-National Labor Relations Boaid v National Laconice Company, 309 U S 350, decided March 4, 1940, aff'g as mod . 104 F. (2d) 655 (C C. A 2), enf'g as mod . Matter of Na- tional Licorice Company and Bakery and Confectionery Workers International Union of America, Local Union 405, Greater New York and Vicinity, 7 N L R B 537. AMERICAN-WEST AFRICAN LINES, INC. 705 fact the scope of the hearing extended in this respect beyond the issues made out by the pleadings. In any event, the renewals having been for successive short periods pending the decision herein, we feel that they should be regarded in the same light as the original contract. B. The refusal to issue, passes to the Al. E. B. A. Since the making of the contract of July 23, 1937, access to the respondent's' vessels for organizational purposes has been granted exclusively to the U. L. O. No permits or "passes" to board the ships have been given to representatives of the M. E. B. A. It is apparent, however, from the testimony of one M. E. B. A. member that representatives of the M. E. B. A. have on some occasions after July 23, 1937, informally boarded the respondent's ships for union purposes without being ordered to leave. On the other hand, there is no showing that opportunity for or freedom of access to the respondent's ships was afforded equally the two unions, and we are satisfied that such was not the case., The U. L. O. was granted a license which the M. E. B. A. did not enjoy. The respondent contends that any favoritism shown the U. L. O. in connection with the use of the respondent's ships for union pur- poses was valid because of the outstanding agreement making mem- bership in the U. L. O. a condition • of employment. Assuming that such favoritism can be interpreted as coming within the intent and language of the contract of July 23, 1937, we nevertheless are of the opinion that the respondent's favoritism contravened the Act. To grant one labor organization an opportunity to use employer property for organizational purposes when such grant is not accorded on equally favorable terms to another labor organization, con- stitutes employer assistance and support to the first organization, and an unfair labor practice, within the meaning of Section 8 (1).26 As stated above, the proviso clause to Section 8 (3) allows, where its terms are met, the making and performance of an agreement to require membership in a labor organization as a condition of em- ployment. It neither provides nor allows the rendering of assist- ance or support to that labor organization beyond that existent in conditioning employment on union membership. Were the rule otherwise, what was intended by the Congress merely as an exclu- sionary clause, removing from the operation of the Act agreements of the character set forth in the proviso, could be converted into a license to destroy the basic rights which the Act confers. 20 See Matter of National Supply Company and Steel Workers Organizing Committee, 16 N L R B. 304. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent, by refusing to afford the M: E. B. A. access to the respondent's vessels on terms equally favorable to those granted the U. L. 0., interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by the Act.27 C. Other alleged unfair labor practices No facts concerning the other unfair labor practices alleged in the complaint, as amended, except the facts set forth above, are shown in the record. In view of this want of evidentiary support, and, in view of what has been heretofore discussed, it is apparent that the complaint, as amended, should be dismissed in so far as it alleges that the respondent, in violation of the Act, after July 23, 1937, urged, persuaded, and warned its employees to refrain from becoming or remaining members of the M. E. B. A.; after said date threatened its employees with discharge and other reprisals if they became or remained members of the M. E. B. A., and did not become members of the U. L. 0.; after said date enforced a closed-shop agreement illegally entered into with the U. L. 0.; and kept under surveillance the meetings and meeting places of the M. E. B. A. members em- ployed on vessels of the respondent. Our order will so provide. IV. THE REMEDY It is essential to an effectuation of the purposes and policies of the Act that the respondent be ordered to cease and desist from cer- tain unfair labor practices in which we have found it to have engaged, and, in aid of such order and as a means of removing and avoiding the consequences of such practices, that the respondent be ordered to take certain action more particularly described below. We have found that the respondent refused to afford the M. E. B. A. access to the respondent's vessels on terms equally favorable to those granted the U. L. 0., thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. Accordingly, we shall order the 'respondent to cease and desist from such unfair labor practices. Moreover, to effectuate the policies of the Act, we shall direct the respondent to grant to the M. E. B. A., or any other labor organization, access to its ships upon the same terms that such access is granted to the U. L. O. or its successor. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : 27 See Matter of South Atlantic Steamship Company of Delaware and National Maritime- Union of America, 12 N. L. R. B 1367, 1379. AMERICAN-WEST AFRICAN LINES, INC. 707 CONCLUSIONS OF LAW 1. National Marine Engineers' Beneficial Association and United Licensed Officers of the U. S. A. are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not engaged in any unfair labor practices as alleged in the complaint, as amended, in regard to Max Block, Robert Fredden, Edward Hannon, E. W. Hanson, F. B. Kenner, Joseph Schackelford, and Henry Wing. 5. The respondent has not engaged in any other unfair labor prac- tices, as alleged in the complaint, as amended. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, American-West African Line, Inc., New York City, and its officers. agents, successors, and assigns shall : 1. Cease and desist from: (a) Refusing, whether by limitation on the issuance of permits or passes, or otherwise, to grant to National Marine Engineers' Bene- ficial Association, its agents and representatives, or to any other labor organization, access to vessels of the respondent, upon terms as favor- able is those upon which such access is granted to United Licensed Officers of the U. S. A., or its successor and successors; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives Of their own choosing, and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Grant, by issuance of permits or passes, or otherwise, to National Marine Engineers' Beneficial Association, its agents and representatives, or to any other labor organization, access to its vessels 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon terms as favorable as those upon which such access is granted to United Licensed Officers of the U. S. A., or its successor and successors; (b) Post immediately, in conspicuous places on its docks and on its vessels , and keep posted for a period of at least sixty (60) consecu- tive days from the date of posting , notices stating that the respondent will cease and desist in the manner set forth in 1 (a ) and (b) and take the affirmative action set forth in 2 (a ) of this Order; (c) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint , as amended, be dis missed except in so far as it alleges that the respondent refused to issue permits to the M. E. B. A . and that by said act, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.