Seafarers International Union

National Labor Relations Board - Board Decisions

Sep 25, 1975

220 N.L.R.B. 698 (N.L.R.B. 1975)

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seafarers International Union of North America, At-
lantic, Gulf, Lakes & Inland Waters District, AFL-
CIO (Isthmian Lines, Inc.) and James Moyles.
Case 23-CB-1222
September 25, 1975
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On April 29, 1975, Administrative Law Judge Lo-
well Goerlich issued the attached backpay decision
in this proceeding.' Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel submitted a brief in support of the Adminis-
trative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, 2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Seafarers International
Union of North America , Atlantic , Gulf, Lakes &
Inland Waters District , AFL-CIO, Houston , Texas,
its officers , agents , and representatives , shall take the
action set forth in the said recommended Order.
1 See orginial decision at 202 NLRB 657 (1973).
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION IN BACKPAY PROCEEDING
HISTORY OF PROCEEDINGS
LOWELL GOERLICH, Administrative Law Judge: On March
23, 1973, the Board issued its Decision and Order I direct-
'202 NLRB 657 (1973).
ing the Respondent (among other things) to take affirma-
tive action to "make James Moyles whole for loss of earn-
ings suffered as a result of the discrimination against him
in the manner set forth in the section above entitled 'The
Remedy.", 2 Thereafter on July 29, 1974, the Court of Ap-
peals for the Fifth Circuit enforced the foregoing backpay
order. On December 3, 1974, a backpay specification and
notice was issued alleging that a controversy had arisen
over the backpay due under the terms of the above-men-
tioned Order.
The matter came on for hearing at Houston , Texas, on
February 18, 1975. Each party was afforded a full opportu-
nity to be heard, to call, to examine and cross -examine
witnesses , to argue orally on the record, to submit pro-
posed findings of fact and conclusions, and to file briefs.
All briefs have been carefully considered.
FINDING OF FACT,3 CONCLUSIONS, AND REASONS THEREFOR
Moyles , a merchant seaman , became permanently unfit
for sea duty in 1968 for health reasons . Thereafter in Feb-
ruary 1970 Moyles was pronounced fit for duty and was
issued a "B" 4 registration card at Respondent 's Houston,
Texas, hiring hall. Thereafter, discriminatorily, Moyles was
denied a "B" rating and was issued a "C" registration card.
Until this event occurred in July 1971, Moyles had shipped
from February 10, 1970, until July 24, 1971, and had
earned $14,237.39. On January 12, 1972, Moyles was issued
a "B" registration card.
In 202 NLRB 657, Administrative Law Judge Ohlbaum
found that during the period of his discrimination Moyles
"regularly" appeared at the Respondent's Houston hiring
hall seeking employment.5 A class "C" seaman, as Moyles
was discriminatorily classified, could be selected for jobs
"only after eight (8) job calls go unanswered by Class 'A'
and Class 'B' men." Job calls were made on the hour start-
ing at 9 o'clock , at which time registration cards were
"thrown in." The seaman with the oldest registration card
in the appropriate class was selected for the job. New regis-
trations were required every 90 days. During the backpay
period, chances for any "C" rated men to be assigned were
minuscule .6
2 In this regard the remedy required the Respondent to "take certain
affirmative action, including making whole James Moyles for a loss of earn-
ings computed on a quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716."
3 All facts found herein are based on the record as a whole and the obser-
vation of the witnesses.
4 "A seaman becomes qualified for a 'B' rating when he has shipped for
90 days in each of two consecutive years. A 'C' rating is given to those
seamen without seniority . All seamen seeking referral from Respondent's
hiring hall are given registration cards which indicate their rating. Seamen
with 'C' ratings are not referred while there are seamen available with 'B'
ratings . Likewise , 'B' rated seamen are not referred while 'A' rated seamen
are available ." Board 's findings , 202 NLRB 657.
5 In order to obtain a job, the person bidding for the job must be physi-
cally present at the hiring hall and must personally "throw in" his card
6 The document offered by the Respondent which reflected the referral of
seamen , both able-bodies and ordinary , from the Houston hiring hall during
220 NLRB No. 105
SEAFARERS INTERNATIONAL UNION
Moyles testified that he "laid around the hall quite a
bit," and as found by Administrative Law Judge Ohlbaum
he regularly appeared at the hall. In this regard there is no
credible proof that he did not follow the usual pattern of
seamen seeking employment out of the hiring hall. More-
over, the sparsity of "C" assignments rendered almost fu-
tile a seaman 's appearance at the hall for a "C" job assign-
ment . Moyles did what was the custom of other seamen in
respect to his appearance at the hall , and he cannot be
faulted because he did not measure up to the arbitrary
standard for "job search" tailored for Moyles in the pro-
ceeding by the Respondent but not in accord with the hab-
its of its seaman members 7 When the Respondent chose to
discriminate against Moyles it did so with knowledge of the
work search habits of its members and it ought not now be
heard to complain that Moyles' habits bar him from back-
pay since it is clear that he fulfilled his job search responsi-
bilities as any seaman normally would . If Moyles were held
to have not made a reasonable search for employment, we
would be turning our backs on the realities of the seafaring
world . Indeed, to penalize Moyles at the behest of the Re-
spondent for acting as a seaman would manifest a patent
incongruity.
The peculiar work habits of seamen and the fact that
seamen may not all fit into the same mold even though
certain of their characteristics are the same were consid-
ered by the General Counsel when he proposed his back-
pay specification . The General Counsel 's formula was
composed by finding the monthly average earnings of
the backpay period revealed that , of some 168 referrals , 9 were regular "C"
classifications, while 3 were in the student "C" classifications. All the rest
were "B" men . The student "C" classification had an advantage over the
regular "C" men in that they could get a job after only two calls while the
regular "C" men had to wait through eight calls before they were eligible for
a job. Of the 12 "C" classification referred , all but 3 were referred to ordi-
nary seamen 's jobs while Moyles was a "green ticket" able-bodied seaman,
which carries a higher rate of pay and more privileges . Thus, had Moyles
appeared every day at the Hall and reported for a job every hour his
chances of obtaining a "C" assignment would have been highly speculative
and no doubt unfruitful . Moyles ' duty to mitigate damages did not require
him to do such a vain thing.
7 Counsel for Respondent developed that "some of the problems .. .
raised in this particular backpay proceeding are caused . . . by the casual
nature of the industry" and that "one of the problems is that men from day
to day wake up on the right side or the wrong side of the bed and decide
either they want to go to sea , away from their wives , or they want to stay
home with their family."
699
Moyles while employed between February 1970 and July
1971, the period from the time Moyles returned to sea duty
and the date of the discrimination. The monthly average
was then multiplied by the number of months during the
backpay period. This formula, according to Van B. Jones,
the compliance officer, was adopted as fair and reasonable
since it would be unfair "to use the earnings of other men
or other seamen because it would appear that in this indus-
try the seaman works as much or as little as he chooses to
work"; thus a formula "would be superior based upon
[Moyles] experience and what he actually worked." Jones
added a further reason indicating that he discovered that
the overtime entries for the "B" employees who had re-
ceived assignments during the backpay period were errone-
ous and that their backpay could not be accurately com-
puted.
It is found that the General Counsel's proposed formula,
for the reasons stated, is fair and reasonable when weighed
in the light of the peculiarities of the seafaring world. Nor
may it be found that Moyles willingly incurred any losses.
Accordingly, it is found that the backpay due Moyles
from the Respondent is the sum of $4,599, plus interest as
set out in the specification.' Moyles' interim earnings were
zero.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and the entire record before me, and pur-
suant to Section 10(c) of the Act, it is recommended that
the Board issue the following:
ORDERS
Respondent, Seafarers International Union of North
America, Atlantic, Gulf, Lakes & Inland Waters District,
AFL-CIO, Houston, Texas, its officers, agents , and repre-
sentatives, shall make James Raymond Moyles whole by
payment to him of $4,599, together with interest at the rate
of 6 percent per annum, until he is paid in full as required
by the Board's Order.
8 The General Counsel amended the specification by alleging: " Subsis-
tence for 100 days at $2 per day-$200.00"; however, no evidence was
offered to support this claim ; thus the claim is denied.
9 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.