Ira S. Bushey & Sons, Inc.

National Labor Relations Board - Board Decisions

May 15, 1969

175 N.L.R.B. 1015 (N.L.R.B. 1969)

IRA S. BUSHEY & SONS, INC. 1015
Ira S . Bushey & Sons, Inc. and Waldron C. Watson
United Marine Division , Local 333, National
Maritime Union , AFL-CIO ( Ira S. Bushey &
Sons, Inc.) and Waldron C. Watson. Cases
29-CA-1142 and 29-CB-424
May' 15, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On November 14, 1968, Trial Examiner Paul
Bisgyer issued his Decision in the above-entitled
proceeding, finding that Respondents had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Charging
Party filed exceptions and Respondent Company
filed cross-exceptions to the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The 'rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire
record in this case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial
Examiner.
ORDER
Respondent Company, through - its ' wholly owned
subsidiary, Diesel Vessel Operators, Inc., herein called
DVO, discriminatorily refused, to reinstate the Charging
Party, Waldron C. Watson, on vessels serviced by DVO
and to grant him seniority rights because he was not a
member of the Union or did not have union clearance and
thereby violated Section 8(a)(3), (2), and (1) of the
National . Labor Relations Act, as amended; and (2),
whether on May 19, 1967, the Respondent Union's
business agent, John D. Jansen, 'threatened Watson to
prevent him from working and to cause employers
generally to discharge him, unless and until he secured
approval of the Union's Executive Board, thereby
involving the Union in a violation of Section 8(b)(1)(A) of
the Act.' At the conclusion of the hearing, the parties
argued their positions orally and thereafter filed
supporting briefs. The motions made by the Respondents
at the hearing to dismiss the complaint on procedural and
substantive grounds, on which ruling was reserved, are
granted'to the extent indicated in my decision below.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with careful consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT COMPANY
Bushey, a New York corporation with its principal
office and place of business in Brooklyn, New York, is
engaged in ship repair and construction and the
performance. of related services. In the course and conduct
of these operations, Bushey annually purchases goods and
materials valued in excess, of $50,000, which are shipped
directly to its Brooklyn shipyard from sources located
outside the State of New York.
It is conceded, and I find, that Bushey is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act. I further find that effectuation of statutory
policies warrants the Board's assertion of jurisdiction
herein.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner: This proceeding, with
all parties represented, was heard on September 3, 4, and
5, 1968, in Brooklyn, New York, on the consolidated
complaint of the General Counsel issued on December 29,
1967,' and the separate answers of Ira S. Bushey & Sons,
Inc., herein called the Respondent Company or Bushey,
and United Marine Division, Local 333, National
Maritime Union, AFL-CIO, herein called the Respondent
Union or Union. The substantive issues raised by the
pleadings are (1), whether since May 17, 1967, the
'There appears a typographical error in the first line of the last par. of
111, B , 2, of the Trial Examiner's Decision The date, October 31, 1968,
should read October 31, 1966.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Respondent Union is a labor
'The consolidated complaint is based on separate charges filed in Cases
29-CA- 1142 and 29-CB-424 on November 3, 1967. Copies of the respective
charges were duly served on the Respondent named therein by registered
mail on the same day.
'Insofar as relevant , Sec 8(a) makes it an unfair labor practice for an
employer
(1) to interfere with, restrain , or coerce employees in the exercise of
the rights guaranteed in Section 7,
(2) to . . . contribute financial or other support to [any labor
organization] . . ;
(3) by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage membership in any
labor organization . .
Sec 8(b), in relevant part, makes it an unfair practice for a labor
organization or its agents -
(1) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in Section 7 .
Sec. 7 provides , among other things, that
Employees shall have the right to self-organization , to form, join, or
assist labor organizations , to bargain collectively through representatives
of their own choosing , . ,. and . . to refrain from any or all such
activities . ! .
175 NLRB No. 170
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization within the meaning of Section 2 (5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Procedural Questions
Before considering the merits of the alleged unfair labor
practices, it may be appropriate first to dispose of the
contention vigorously urged by the Respondents that the
complaint should be dismissed for the reason that the
Regional Director acted arbitrarily in reinstating it and
scheduling a hearing, ex parte, after he had previously
dismissed the complaint because of the Charging Party's
failure to cooperate with the Regional Office in its
prosecution. Specifically, the Respondents argue that, not
only was it unfair and a denial of due process to reopen
this case without giving them prior notice and an
opportunity to be heard before action was taken, but also
the General Counsel has not shown sufficient facts to
justify the reinstatement of the complaint. In support of
their position, the Respondents cite the Board's decision in
Forrest Industries, Inc.,' where it was held, under the
special circumstances of that case, that the General
Counsel's denial of the charging party's first motion for
reconsideration of the General Counsel's ruling which
sustained the Regional Director's refusal to issue a
complaint was diapositive of that proceeding and that it
would not effectuate the policies of the Act to proceed
further with the matter. The Board, accordingly, dismissed
the complaint without reaching the merits. I find that the
situation in the present case is entirely different from that
in Forrest Industries and that the principle of exhaustion
of procedural remedies therein enunciated is not
applicable here.
The facts in the present case may be summarized, as
follows: On August 14, 1967, the charging party, Watson,
filed an 8(b)(2)4 and 1(A) charge (Case 29-CB-394) against
the Union alleging, in substance, that since about May 17,
1967, it caused Bushey discriminatorily to terminate
Watson 's employment for reasons other than his failure to
tender periodic dues or initiation fees and for his activities
in criticizing the Union 's hiring policies and by these and
other acts restrained and coerced Watson in the exercise
of his statutory rights. No charge, however, was filed
against Bushey at this time. On September 14, 1967, the
Regional Director approved Watson's request to withdraw
the charge against the Union and so notified that
organization and DVO. Seven weeks later, November 3,
Watson instituted the present proceedings by filing
separate charges against the Union and Bushey and a
complaint issued on December 29, 1967.° The charge
against the Union contained the same allegations as those
in the prior one, while the charge against Bushey alleged
that since on or about May 17, 1967, Bushey, at the
request of the Union, refused to reinstate Watson for
reasons other than his failure to tender periodic dues and
initiation fees and thus violated Section 8 (a)(1) and (3) of
the Act.'
'168 NLRB No 98.
'Sec. 8(b)(2) of the Act makes it an unfair labor practice for a labor
organization or its agents
to cause or attempt to cause an employer to discriminate against an
employee in violation of . [Section 81(a)(3) or to discriminate against
an employee with respect to whom membership in such organization has
been denied or terminated on some ground other than his failure to
tender the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership
'I find no merit in the Respondents ' affirmative defense that the
On April 4, 1968, the Regional Director issued an order
dismissing the complaint and cancelling the hearing
scheduled for April 22, 1968, for the stated reason that
the Charging Party failed to cooperate in these
proceedings.' A copy of this Order was served on all the
parties. Thereafter, on May 29, 1968, the Regional
Director, also on his own motion, issued an Order in
which he stated that it appeared that the Charging Party's
failure to cooperate in these proceedings "was due to his
serving in the United States Merchant Marine in Vietnam
during the pendency of these proceedings and his inability
to communicate with said Regional Director because his
vessel was the subject of enemy action." Accordingly, the
Regional Director rescinded his April 4 dismissal of the
complaint and rescheduled the case for hearing. A copy of
this Order was served on all the parties the same day by
registered mail and, as far as the record is concerned,
there is no indication that either Respondent objected to
the Regional Director ' s action until the hearing in this
case , which was held 3 months later.
Watson's testimony concerning his asserted
noncooperation, which is uncontradicted and credited, is,
as follows: On December 8, 1967, prior to the issuance of
the complaint herein, he signed up on the U. S. Tourist, a
vessel owned by Clipper Marine Corporation, going to
Vietnam with a full cargo of ammunition. Before leaving
the country, he notified the Union and the Regional
Office investigator handling this case of his intentions and
furnished the investigator with his local mailing address.
On March 27, 1968, Watson returned to the United
States.
There can be little question that the Regional Director
acted within his authority in reinstating the complaint and
rescheduling the hearing. The possession of such authority
is clearly implicit in Section 102.19 of the Board's Rules
and Regulations, which provides for an appeal to the
General Counsel from a Regional Director's refusal to
"reissue" a previously withdrawn complaint. Perhaps it
might have been better practice had the Regional Director
given the Respondents advance notice of his proposed
action to reinstate the complaint and reopen the
proceedings and to afford the parties an opportunity to be
heard. However, although the Respondents were promptly
allegations of the complaint were barred by Sec . 10(b) which provides that
"no complaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with the Board and
the service of a copy thereof upon the person against whom such charge is
made . " It is quite clear from the dates of the alleged violations and
the filing and service of the respective charges, previously noted, that the
issuance of the complaint was not barred. Nor was the Regional Director
precluded from proceeding on these charges simply because the Charging
Party was permitted to withdraw his earlier charge against the Union Cf
Jackson Tile Manufacturing Company, 124 NLRB 218, 220 , fn. 1, enfd
282 F 2d 90 , 92 (C A 5).
'As previously indicated , the complaint alleges that the Company
unlawfully denied Watson reinstatement and seniority rights because he
was not a member of the Union or did not have union clearance and that
the Union unlawfully threatened Watson with loss of employment. It,
however , does not allege that the Union caused Bushey to discriminate
against Watson. I find, contrary to the Respondents' contention , that the
unfair labor practices alleged in the complaint are related to those alleged
in the charges Additionally , with respect to the Union, the allegation in
the applicable charge that the Union coerced and restrained Watson in the
exercise of his Section 7 rights by "these and other acts " clearly
encompasses the 8(bXIXA) allegations in the complaint I therefore find
that the charges are sufficient to support the complaint herein . N L.R B v
Fant Milling Company , 360 U . S. 301, 306-309.
'Sec. 102 . 18 of the Board's Rules and Regulations authorizes the
Regional Director , on his own motion , to withdraw a previously issued
complaint before hearing
IRA S. BUSHEY & SONS, INC. 1017
served with a copy of the Regional Director's Order
reinstating the complaint and rescheduling the hearing,
there is no evidence that they protested his action until the
hearing in this case. Moreover, the Trial Examiner offered
the parties an opportunity to present all the facts relevant
to the propriety and fairness in reopening these
proceedings so that whatever prejudice the Respondents
suffered was inconsequential . After all, the "Constitution
protects procedural regularity, not as an end in itself, but
as a means of defending substantive interests."'
On the basis of all the facts and circumstances
surrounding the dismissal of the complaint and its
reinstatement, I find that the Regional Director did not
act arbitrarily in reopening these proceedings and that the
Respondents were not deprived of a fair and adequate
opportunity to demonstrate the impropriety of the
Regional Director's action. On the contrary, I find.that
the reinstatement of the complaint well served the
interests of justice and effectuation of the policies of the
Act.
B. The Merits
1. Introduction; Issues
DVO is a wholly owned subsidiary of the Respondent
Bushey, both of whom the General Counsel contends
constitute a single , integrated employer. It is engaged in
the business of furnishing various services to vessels owned
and operated by the Bushey industrial complex and other
unrelated independent enterprises, such as Liquid Carriers
Corp.,' which owns and operates three chemical barges,
including the Atlantic, involved herein. Among other
things, DVO hires, discharges, and pays the wages of, the
crews that man the vessels it services and maintains the
payroll records for the shipowners. The licensed and
unlicensed personnel on board these vessels are
represented by the Union pursuant to three multiemployer
collective-bargaining agreements, each separately covering
seamen employed by named employers on the following
types of vessels: (a) self-propelled oil tankers; (b)
non-self-propelled oil tankers; and (c) tugboats and
self-propelled lighters." DVO is named as an employer in
all the contracts while Liquid Carriers is named only in
the non-self-propelled oil tankers contract." These
contracts have valid union security provisions requiring
membership in the Union within 31 days after being hired,
as a condition of employment However, noncompliance
with these provisions is not urged as a defense to the
alleged unfair labor practices.
Two questions are presented for determination, one
involving the credibility of Watson's testimony that he had
a conversation with DVO's personnel manager, William
A. Watt, in which Watt stated that he would not
reemploy him because he was not a union member and
therefore had no seniority rights and another conversation
with the Union's business agent, John D. Jansen, who
allegedly threatened to keep him from working unless he
obtained approval from the Union's Executive Board.
Watt and Jansen categorically denied ever having had
such conversations. To place the alleged conversations in
proper context, the events preceding and following these
incidents will be discussed below. The second question
relates to Respondent Bushey's responsibility for Watt's
alleged discrimination and is reached only if Watson's
testimony is found to be trustworthy.
2. Watson 's employment by DVO; his application for
union membership
In September 1966, Watson sought employment with
DVO." After filling out an application, Personnel
Manager Watt, whose function it was to hire the deck
crews, informed Watson to keep in touch with him On
October 3, when a deckhand job opened up on a
self-propelled motor tanker, the Philip Lemler, owned by
a corporation by that name, Watt offered it to Watson
who accepted. Six days later Watson asked for a transfer
to another vessel . Watt granted the request and assigned
him to the George Whitlock, The Second, also owned by
a corporation by that name. Watson worked on this vessel
until December 15, 1966, when he either quit or was
involuntarily replaced. Apparently, these vessels were
Bushey enterprises.
On October 31, 1968, while Watson was still employed
on the George Whitlock, the vessel was visited by Union
Business Agent Jansen whose duties included, among
others, enforcing the union security provisions of the
bargaining agreements applicable to the vessels serviced
by DVO. Upon learning from Watson that he was not a
member of the Union, Jansen informed him that he was
required to join that organization under the governing
contract - something that Watt had also told him when
he was first hired. Watson expressed his willingness to do
so and paid $40.50 requested by Jansen in payment of 3
months' dues and certain assessments . Jansen also advised
him that he would receive a notice from the Union to
appear before its Executive Board for approval of his
membership application," at which time or within 31 days
after his employment, whichever was later, he would have
to pay a $250 initiation fee Clearly, Jansen acted properly
in informing Watson of his contractual obligation to join
the Union." As will later appear, Watson's application
was ultimately rejected by the Executive Board and the
monies he had paid to Jansen were refunded.
3. Watson's employment on the Atlantic; his physical
disability; his first notice to appear before the
Union's Executive Board
After Watson left his job on the George Whitlock,
Watt next heard from Watson about the middle of
'Fay v Douds , 172 F 2d 720, 725 (C A. 2).
'Although Bushey owns 50 percent of the stock of Liquid Carriers Corp ,
it is not contended that it is an integral part of the Bushey industrial
complex
"Specifically, these agreements are between the Union and Marine
Towing and Transportation Employers ' Association for and on behalf of its
members operating the indicated type of vessels and have the same term
running from January 29 , 1967, to January 31, 1970
"Bushey, which operates a shipyard , is not named as an employer in any
of the three contracts Its shipyard employees , however, are covered by a
collective-bargaining agreement with Local No 13 of the Industrial Union
of Marine and Shipbuilding Workers of America, AFL-CIO
lilt appears that in August 1966, Union Business Agent Jansen had
referred Watson to a job on a barge owned by Sears Oil Company and
informed him of his obligation to join the Union within 31 days under the
terms of the prevailing bargaining agreement Employment on that barge
did not last long.
"This finding is based on Jansen 's testimony , which I credit Although in
the course of his direct examination Watson testified that Jansen told him
that his membership was subject to "ratification" by the Executive Board,
he, however, indicated during his cross-examination that the Executive
Board was not mentioned
"N L R B. v Hotel Employees Local 568, 320 F.2d 254, 258 (C A. 3),
enfg 136 NLRB 888, 896
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 1967, when Watson called him on the telephone
for employment on a barge . As Watt expected a job on a
chemical barge to open up in a day or two, he told
Watson to call back at that time . On January 20, Watt
rehired Watson as a mate on the Atlantic , one of three
barges owned and operated by Liquid Carriers Corp., a
company unrelated to the owners of the two other vessels
to which he was previously assigned . Watson worked on
the Atlantic until Saturday , January 28, 1967, when it
docked at Providence , Rhode Island. Because of an
impending strike by the Union, he was temporarily
ordered off the barge by the captain.
While working on the Atlantic before his employment
was interrupted by the strike , Watson sustained a painful
shoulder injury. On February 3, 1967 (Friday) Watson
went to the Bushey shipyard where DVO's offices were
located to secure a master 's certificate of service which
would entitle him to medical treatment at the U . S. Public
Health Service Hospital in Staten Island , New York. At
the shipyard gate he met Watt who told him to stand by
his telephone because he expected the strike to be settled
in the next 2 or 3 days . At this time Watson informed him
of his injury and requested a master 's certificate. Watt
referred him to DVO's port engineer , Joseph Place, who
issued it. On February 5, Watson visited the hospital and
became an outpatient for some 3 months, receiving
treatment during that period . On each hospital visit
Watson was given a Medical Report of Duty Status in
quadruplicate which, until his final treatment , noted that
he was "Not Fit for Duty." Watson regularly filed a copy
of these reports with Whitehall Brokerage Company, an
insurance carrier to which Watson had been referred by
Watt. 16 On the basis of these medical reports Whitehall
Brokerage made periodic payments for maintenance and
cure to Watson."
During Watson's period of disability he received a
notification from the Union dated March 16, 1967, to
appear before the Executive Board on April 5, in
connection with his membership application . This letter
also advised Watson that his initiation fee had to be paid
at or before the time of his appearance and that his failure
to do so would result in the termination of his
employment. Watson , however, did not come before the
Executive Board on the scheduled date but telephoned the
union office and informed "the girl" who answered that
he would be unable to keep the appointment . Although
Watson testified that the reason he did not appear before
the Board was his disability , it appears that during this
period , in addition to making periodic visits to the
hospital for treatment , he made occasional visits to the
insurance carrier to pick up his maintenance and cure
checks, to places away from home to obtain his mail, and
to see friends.
4. Alleged discrimination and threat of loss of
employment
On May 16, 1967, Watson was discharged as an
outpatient by the U.S. Public Health Service Hospital,
receiving a final medical report that he was fit for duty.
The next morning , May 17, he presented this report to the
"On February 24, 1967 , in Watt's presence , Watson prepared an
accident report which Watt mailed to Whitehall Brokerage Company.
"The applicable bargaining agreement makes provision for such
allowances to injured seamen . It is not particularly important to the issues
in the case whether Watson also furnished Watt with copies of these
medical reports which , according to Watt's testimony, he had instructed
Watson to do.
insurance carrier and was given his last maintenance and
cure allowance.
Watson testified that he thereupon made a call to Watt
from a public telephone in the lobby of the building in
which the insurance company was located and the
following conversation ensued : Watson informed Watt
that he was fit for duty, that he had submitted the
hospital medical report to that effect to Whitehall
Brokerage Company, and that he wanted to return to
work . When Watt replied that he could not rehire or help
him, Watson protested that he was in the employ of
Liquid Carriers and at the time of his injury was number
11 on the seniority list consisting of 16 employees working
on Liquid Carriers' four boats ." Watt disagreed with
Watson that he had any seniority rights for the reason
that he was not "a full member" of the Union, adding
that the seniority list included only "full members" of that
organization . The conversation ended with Watt advising
Watson to straighten out his membership problem before
he would be rehired.
Watt emphatically denied that he ever had a
conversation with Watson of the nature related above,
either over the telephone or in person . Moreover, as
previously discussed, Watt at the hearing disputed
Watson's claimed seniority and his assertion that Liquid
Carriers' total crew complement exceeded nine men.
Continuing with his experience on May 17, Watson
testified that immediately after his telephone conversation
with Watt , he proceeded to the union offices, which were
on the same floor as Whitehall Brokerage ' s offices, "to
get a clarification [of his rights ] from the Union ." In the
hallway he met Captain Joseph O ' Hare , the Union's
president . According to Watson's uncontradicted
testimony, he briefly explained his conversation with
Watt. Specifically, he told O'Hare that he had been
working "in Bushey" and had been "off sick" because of
an injury and that he could not return to his boat because
he had no seniority in the "company" and was not a
union member . In answer to Watson 's inquiry as to when
seniority began, O'Hare replied without equivocation that
it commenced the "minute" he started to work for the
"company," regardless of his union status. O'Hare was
not produced as a witness nor was his absence explained.
Despite the fact that it assertedly became apparent to
Watson that Watt ' s refusal to rehire him violated his
seniority rights whose existence was confirmed by
O'Hare's views," and despite Watson's expressed desire to
resume his former employment , he admittedly did not
communicate with Watt to apprise him of his discussion
with O' Hare in an effort to persuade Watt to change his
mind and rehire him. Instead , Watson testified , he waited
until May 19, a Friday , when Business Agent Jansen was
regularly scheduled to be in the office, to telephone Jansen
regarding his inability to get his job back . Watson gave
this account of his conversation with Jansen: He told
Jansen that he was fit for duty and wanted to return to
"According to Watt 's testimony , which appears to be more reliable and
I credit , Liquid Carriers had only three boats , each of which employed
three men , and Watson was "at the bottom of the [seniority ] list."
Moreover , Watt credibly testified , without contradiction , that during the
period from May 17 to November 1, 1967, only one dockhand (Roald
Anne) was hired on a Liquid Carriers boat about September 25, 1967, and
that that employee's initial employment with Liquid Carriers antedated
Watson 's. It is also undisputed that seniority acquired on the vessels owned
by one company does not carry over to employment on vessels owned by
another company.
"On cross-examination Watson conceded that , after speaking to O'Hare,
he understood he had a right to return to work.
IRA S. BUSHEY & SONS, INC.
work on "that boat"; that he had called the "company"
up and was told that he had no seniority rights and could
not be rehired because he did not have "full membership"
in the Union; and that he had spoken to O'Hare who told
him that he did have seniority rights with the "company."
Jansen, however, answered that he could do nothing for
Watson and informed him that he would have to appear
before the Executive Board, which was scheduled to hold
a meeting in 3 weeks, before he "could be ratified or
rehired." Jansen also warned Watson that in the
meantime he had orders to pull him off any boat in the
harbor under the Union's jurisdiction on which Watson
was found. Although the statements thus attributed to
Jansen concerning Watson's employment rights could not
be reconciled with those of O'Hare who was Jansen's
superior, Watson did not challenge Jansen's authority to
keep him from working because "there is a chain of
command" that he was observing and he was "not going
out here and raising hell on . . . [his] own." Concededly,
Watson did not report to O'Hare either that Jansen was
disregarding O'Hare's views regarding "the law or the
rules."
Jansen denied that he engaged in the telephone
conversation in question or that he at any time made any
threats to Watson of the nature related above. Jansen also
testified that he never requested DVO to withhold
employment from Watson. Watt corroborated Jansen in
this latter respect, testifying further that no union
representative or official discussed Watson's membership
status with him.
5. The June 7 Executive Board meeting; denial of
membership to Watson; the first unfair labor practice
charge against the Union
About 2 weeks prior to the Executive Board meeting
scheduled for June 7, 1967, to consider some 10
membership applications, Watson told Jansen that he did
not have the money to pay the $300 initiation and other
fees required for membership. Jansen suggested that he
discuss the matter with Captain O'Hare or Union
Secretary-Treasurer Willard Quick. A few days later
Watson spoke to O'Hare who advised him that when he
appeared before the Executive Board to explain his
financial difficulty and expressed his belief that the Board
would probably "clear" him so that he could return to his
job. Watson, however, did not mention his alleged May 19
conversation with Jansen.
Watson attended the Executive Board meeting at the
stated time. O'Hare, as union president presided. Of all
the applicants only Watson was turned down on O'Hare's
recommendation after O'Hare accused him of being part
of an insurgent group in a sister local of the Union, now
defunct, which group was supported by a competing labor
organization, and that he had cussed O'Hare out at one of
the meetings."
On August 14, 1967, Watson filed his first unfair labor
practice charge against the Union, alleging that the
Union, in violation of Section 8(b)(1)(A) and (2) of the
Act, caused Bushey discriminatorily to terminate his
employment. However, no charge was filed against Bushey
at that time. In reply to the Regional Director's written
request for a statement of position, O'Hare sent a letter
"The foregoing account reflects the sum and substance of Watson's
uncontradicted testimony . Jansen, who was not present at the Executive
Board meeting, testified that he knew of no other membership application
which was rejected by the Union in the past 10 years
1019
dated August 22 in which he denied the truth of the
charges. Explaining the Union 's refusal to grant Watson
membership , O'Hare stated:
Mr. Watson was formerly a member of the now defunct
Local 335 of the United Marine Division , National
Maritime Union, AFL-CIO, which local was an
affiliate of this Local (Local 333). Mr. Watson recently
made an application for membership in this Union, but
his application for membership was denied because of
his history of disloyalty to the United Marine Division
of the National Maritime Union when he was a
member of Local 335. However , the denial of his
application for membership to this Local was in no way
related to, affected or influenced the termination of his
employment , or his continued unemployment with his
previous employer or any potential employer.
On September 14, 1967, the Regional Director permitted
Watson to withdraw these charges . At some undisclosed
time the Union refunded to Watson the $40.50 he had
paid Jansen on October 31, 1966.
6. Watson's August 22, 1967, request for
reemployment; subsequent events
After his alleged May 17 conversation with Personnel
Manager Watt, Watson made no further effort to seek
employment at DVO until about August 22 when he made
a telephone call to Watt. At this time Watson's original
unfair labor practice charge against the Union was under
investigation by the Regional Office.2° Watson testified
that on this occasion he again asked Watt for a job and
that Watt's reply was simply, "No, out," that he could
not rehire him. Watson further testified that he made no
response. On cross-examination, Watson added to his
testimony that, when Watson rejected his request, Watt
also remarked that "you [Watson] had a labor suit
against us with the National Labor Relations Board and
now you have withdrawn it. No ... I will not rehire you."
Obviously, the additional remarks attributed to Watt
could not possibly have been made because the only unfair
labor practice charge filed by Watt at this time was
against the Union and was withdrawn 3 weeks after the
telephone conversation in question.
Watt admitted that on August 22 Watson telephoned
him, inquiring whether there were any job openings and
that he (Watt) replied in the negative. However, according
to Watt, he also informed Watson that he had previously
tried to reach him by telephone at a number which
Watson had once given to him in order to offer him a job 2i
but that the telephone company advised him that there
was no such number listed. Watt further testified that
Watson either made no reply or mumbled something that
he did not hear. This conversation closed, Watt testified,
with the customary suggestion he makes to job applicants,
that Watson keep in touch with him every few days to
check whether a vacancy was available. Watt also testified
that he had not seen or spoken to Watson since the date
of this conversation.
"It appears that following the Union' s rejection of his membership
application Watson applied for, and was receiving , unemployment
insurance benefits According to Watt's uncontradicted testimony, no
individual connected with the State Unemployment Insurance Department
communicated with him personally with respect to Watson's employment
status
"Watt testified that he tried to communicate with Watson in the
beginning of June and again in the summer to offer him a job which, as is
usual in the maritime industry , had to be filled immediately If such were
the case, the job would have been on a vessel not owned by Liquid Carriers
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Watson conceded on cross -examination that
it was a general practice for temporarily laid off
employees to communicate with Watt to ascertain whether
any job vacancies opened up , there is no evidence that he
did since August 22 . 23 However , on September 14, 1967,
the day the Regional Director approved Watson 's request
to withdraw his unfair labor practice charge against the
Union , Watson , at the suggestion of the Regional Office,
filed with the Union a grievance against DVO,
complaining about DVO's refusal to reemploy him. On
November 3, while the Union was still in the process of
making arrangements for a hearing before a grievance
committee of employee and union representatives, as
provided in its collective -bargaining agreement ," Watson
filed the charges against Bushey and the Union which
initiated the instant proceedings.
On December 8 Watson appeared at the union office
and advised Office Manager Edward Olsen that he was
shipping out to Vietnam on a vessel under the jurisdiction
of another labor organization . Olsen thereupon conveyed
this information to Business Agent Jansen who, on
December 12, wrote a letter to Watson . After alluding to
Watson ' s conversation with Olsen in which Watson
advised Olsen of his new employment , Jansen stated:
We assume that in view of your new employment that
you do not wish to pursue your grievance for
re-employment with Diesel Vessel Operators.
You also advised Mr. Olsen that you have vacation
coming to you from Diesel Vessel Operators and if you
will be good enough to write us and give us the details
of your claim for vacation pay, we will pursue that
matter further.
Although Watson returned to the United States on
March 27 , 1968, he did not answer this letter until on or
about August 5, 1968 . In his reply , Watson referred only
to Jansen ' s offer to pursue his claim for vacation pay
from DVO, making no comment concerning Jansen's
assumption that Watson wished to drop his grievance to
seek reemployment with DVO. Respecting vacation pay,
Watson stated that "[s] ince my employment there was
terminated against my own will and neither the Company
nor the Union has given me any kind of explanation as to
why," he was entitled to vacation pay for the time he
worked for DVO." When confronted on
cross-examination with the discrepancy between this
statement and his testimony that Watt on May 17, 1967,
had told him that he could not be rehired because of his
nonmembership in the Union , Watson testified that the
statement in the letter was true insofar as his claim for
vacation pay was concerned . As a rebuttal witness,
however , Watson indicated that the statement in his letter
was intended to convey the idea that he was "discharged
without cause."
Corp. in view of the fact that , as Watt also testified , during the period
from May 17 to November 1, 1967, he had hired only one individual,
Roald Aune , for work on a Liquid Carriers vessel about September 25,
1967
"However , there is a conflict in testimony , which need not be resolved,
as to whether Watson had several conversations with Watt beginning in
November 1967 concerning Watson's claim for reimbursement for travel
expenses incurred when he was ordered off the Atlantic the preceding
January 28 , and for vacation pay he allegedly earned during the period of
his employment with DVO.
"No question is raised that the Union violated Sec . 8(b)(1)(A) of the Act
in failing to assist Watson in securing employment with the Company
through the contract grievance procedure . Cf Chauffeur's Union Local
923, 172 NLRB No. 248
"Watson also stated in the letter that he did not answer sooner because
C. Concluding Findings
As indicated above , dispositive of the factual issues
whether Personnel Manager Watt discriminatorily refused
to rehire Watson and recognize his seniority rights and
whether Business Agent Jansen unlawfully threatened to
prevent Watson from working without the Union's
Executive Board 's approval , is the reliability of Watson's
testimony concerning the separate telephone conversations
he claimed to have had with Watt and Jansen on May 17
and 19, respectively , in the face of their unequivocal denial
that such conversations ever occurred . To resolve this
irreconcilable conflict is not a simple matter . Obviously,
the search for truth is not always rewarding and the most
the trier of the facts can derive is an honest conviction as
to where the truth probably lies.
From a careful evaluation of the testimony of these
witnesses , in light of their demeanor , their demonstrated
attitudes and the surrounding circumstances , I am not
convinced that greater credence should be accorded to
Watson 's account of the conversations in question than to
the contradictory testimony of Watt and Jansen. If, as
Watson testified , Watt told him that he could not rehire
him or recognize his seniority because he was not "a full
member" of the Union," but would reemploy him when
he straightened out his status with the Union , I find it
difficult to understand why Watson did not immediately
communicate with Watt after speaking to Union President
O'Hare to apprise him that O'Hare had advised him that
an employee could not be deprived of seniority because of
lack of union membership . Certainly, Watson 's failure to
convey O'Hare's views to Watt cannot be squared with his
asserted desire to resume work or with his visit to the
union offices to secure a "clarification" of his job rights
after Watt declined to rehire him . Of course , Watson's
uncontroverted testimony of his discussion with O'Hare
might suggest that Watson was prompted to talk to
O'Hare because of Watt 's action. However, such evidence
is purely self-serving as far as the Respondent Bushey is
concerned and hence without probative value in
establishing a case against Bushey . Moreover , it can just
as reasonably be inferred that Watson made the inquiry in
order to ascertain his rights before seeking reinstatement
because of his default in appearing before the Union's
Executive Board on April 5, 1967 , in connection with his
October 1966 membership application.
Another factor which militates against crediting
Watson 's testimony is the fact that in his August 1968
letter to Jansen, Watson stated that he was involuntarily
terminated by "the company " without being given "any
kind of explanation as to why ." This plainly contradicts
his testimony that Watt assigned Watson 's lack of union
membership as the reason he was not reemployed. I am
not persuaded by Watson ' s justification for the
contradiction given under cross-examination that the letter
was only concerned with securing vacation pay nor by his
later explanation given as a rebuttal witness that he
intended to say in the letter that he was discharged
he had only recently received Jansen's letter and had not been fit for duty
since his return to the United States. The letter discloses that it was
written at the U S Public Health Service Hospital in Savannah , Georgia.
"In view of the fact that Watson was at the bottom of Liquid Carriers'
seniority list and that apparently there was no opening on any of its vessels
until employee Aune was hired on September 25, 1967 , it is highly unlikely
that , in response to Watson's asserted claim that he was entitled to his job
on the basis of his seniority , that Watt would state that Watson had no
seniority because he was not "a full member" of the Union , as Watson
testified.
IRA S. BUSHEY & SONS, INC.
without cause.
Also detracting from Watson's testimony is the absence
of any evidence that at the time of the purported May 17
conversation, Watson had become persona non grata to
the Union and specifically to O'Hare. Indeed, there is
nothing in the record to show that O'Hare was other than
friendly to Watson on that date. Furthermore, except for
the purported May 17 conversation, there is no evidence
that Watt knew that Watson had not acquired
membership in the Union or was not acceptable to the
organization . 26 In this context, and without more
persuasive evidence or corroborating circumstances, it
would border on speculation to conclude that Watt had
imposed union membership as a condition of Watson's
employment.
Watson's reliability as a witness is also not aided by his
testimony concerning his telephone conversation with
Watt on August 22, 1967, 2 1/2 months after the
Executive Board rejected his membership application."
Although on direct examination Watson testified that
Watt merely told him that he could not rehire him, under
cross-examination he added that after Watt declared that
he (Watson) had instituted a "labor suit against us"
before the Board, which was withdrawn, Watt said that he
would not rehire him. As indicated above, the additional
remarks attributed to Watt could not possibly have been
made since the unfair labor practice charge which had
then been filed was against the Union only and was
actually withdrawn 3 weeks after the August 22 telephone
conversation.
Finally, the reliability of Watson's testimony
concerning his conversation with Watt is not enhanced by
the 5 1/2-month delay in filing the unfair labor practice
charge against Bushey, although, to be sure, it was timely
under the statutory 6-month limitation period. This is
especially so since it is quite obvious that the ground for
the charge against Bushey was not newly discovered and
no plausible excuse for the delay appears in the record. In
making my foregoing appraisal of Watson's testimony, I
have taken into consideration the fact that Watt, initially
in his testimony, only recalled one occasion in early
February 1967 when he spoke to Watson, although he had
a second conversation on February 24 when Watson
prepared an accident report in Watt's presence. This
temporary lapse of memory, which Watt subsequently
On the contrary, as previously noted, Watt and Jansen testified that no
union official or representative communicated with Watt concerning
Watson's membership status or requested DVO to withhold employment
from Watson because of his lack of union membership or for any other
reason.
"It is not , nor could it be, contended that the Union was not within its
statutory rights to deny Watson membership in its organization so long as
he was not deprived of his job or employment opportunities because he was
not a member
1021
corrected on the witness stand, is too trivial to warrant
discrediting Watt's denial that he had the May 17
telephone conversation, as the General Counsel would
have me do.
With respect to Watson's testimony, disputed by
Business Agent Jansen, concerning their conversation on
May 19, 1967, in which Jansen allegedly threatened to
keep Watson from working unless he was approved by the
Executive Board, it is certainly conceivable that this could
have happened in view of the fact that it was Jansen's
duty to enforce the contractual union security provisions
and Watson's failure to appear before the Union's
Executive Board on April 5, 1967, for approval of his
previously initiated membership application. On the other
hand, I find it hard to believe that, if that conversation
had taken place, Watson would not have challenged
Jansen's authority to keep him from working or
complained to Union President O'Hare that Jansen was
violating his job rights in disregard of O'Hare's views.
However, Watson did not do it. Moreover, in the August
1968 letter to Jansen , mentioned above, Watson protested
that the Union, like the Company, did not give him "any
kind of explanation" for his termination.28
In sum , I conclude that Watson's testimony is not
sufficiently convincing or reliable to satisfy the General
Counsel's burden of proving by a preponderance of the
credible evidence that Bushey discriminatorily denied
Watson employment in violation of Section 8(a)(1), (2),
and (3) of the Act and that the Union threatened to
prevent him from working unless approved by its
Executive Board, thereby violating Section 8(b)(1)(A) of
the Act In view of my determination, I find it
unnecessary to consider whether Bushey, as a single
integrated employer with DVO, was responsible for the
alleged discrimination committed by DVO. Accordingly, I
recommend dismissal of the consolidated complaint in its
entirety.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and
conclusions , and upon the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended,
It is ordered that the consolidated complaint issued
herein against the Respondents , Ira S. Bushey and Sons,
Inc., and United Marine Division , Local 333, National
Maritime Union , AFL-CIO, be, and it hereby is,
dismissed.
"Although there is some testimony regarding Watson's subsequent effort
to seek employment through the union hiring hall, it is noted that the
Union is not charged with discriminating against him in its use