Seafarers' Intl. Union

National Labor Relations Board - Board Decisions

Aug 27, 1979

244 N.L.R.B. 641 (N.L.R.B. 1979)

SEAFARERS' INTL. UNION
Seafarers' International Union, Atlantic, Gulf, Lakes
and Inland Waters District, AFL-CIO' (American
Barge Lines) and Marvin W. Myers and American
Barge Line Company; Inland Tugs Company;
Northern Towing Company; Fall City Towing Com-
pany; Orgulf Transport Company; National Marine
Services, Inc.; Dixie Carriers, Inc.; Southern Ohio
Towing Company; Ozark Marine Company: Gulf
Canal Line; and Delta Queen, Parties in Interest.
Case 14-CB-3849
August 27, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELI.O
On October 6, 1978, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.2
The Administrative Law Judge recommended dis-
missal of the complaint allegation that Respondent's
exclusive hiring hall arrangement unlawfully encour-
ages union membership by granting job-referral se-
niority based upon work experience for signatory em-
ployers only, in violation of Section 8(b)(1)(A) and (2)
of the Act. We disagree.
The record facts, as more fully recited by the Ad-
ministrative Law Judge, show that Respondent oper-
ates an exclusive hiring hall in St. Louis, Missouri,
pursuant to collective-bargaining agreements with the
signatory employers, including all of the Parties in
Interest named herein except Delta Queen, which op-
erate tugboats and towboats on the inland waters of
the United States. All of the said arrangments incor-
porate Respondent's "Unlicensed Shipping Rules"
We agree with the Administrative Law Judge that there is insufficient
evidence to support the allegations of the complaint insofar as they relate to
Seafarers' International Union of North America. AFL-CIO. and. in the
absence of any exceptions to such dismissal, we hereby remove said Interna-
tional from the case as a party Respondent. Accordingly. the caption is
amended to reflect the correct name of the sole Respondent herein
2 We agree with the Administrative Law Judge that the allegation of Re-
spondent Distnct's unlawful refusal to refer Charging Party Myers through
its hinng hall is time barred by Sec. IO(b) of the Act and therefore adopt his
dismissal of that portion of the complaint.
which classify seniority, forjob-referral purposes, into
A, B, and C ratings, and provide for upward advance-
ment from C to B, and from B to A, based on work
experience for signatory employers for a minimum of
90 days for 2 consecutive years. The agreements also
contain 30-day union-security clauses: hence the alle-
gation that the seniority standards encourage mem-
bership in the Union.
Testimony by Worley, Respondent's port agent in
charge of the St. Louis hiring hall, discloses that ap-
plicants are placed on a referral registration list ac-
cording to A, B, or C seniority ratings and that it is
up to each registrant to prove his seniority status or
work experience with signatory employers at the time
of registration, but that no inquiry is made as to
union affiliation in connection therewith. Conversely.
as Worley admitted, membership is encouraged and
registrants are not told that they do not need to fill
out a membership application to be referred for jobs.
Worley further described the referral procedure as
follows: A request for referral is posted upon receipt
in the hiring hall and is offered orally to any A or B
seniority registrants who are present. If no referral
results therefrom, the referral request is forwarded to
one of two out-of-town sister hiring halls and simi-
larly offered to A and B registrants there. If again no
referral is made, the process reverts back to the St.
Louis hall and is offered first to A- and B-rated indi-
viduals in the hall and, thereafter, by telephone to A.
B, and C registrants listed on the daily registration
lists according to seniority.
The record evidence reveals that between Septem-
ber 1, 1977, and July 24, 1978, the date of the hearing
herein, Respondent made employment referrals
through its hiring hall to 52 A seniority, 182 B senior-
ity, and 101 C seniority registrants. Thus, the record
shows that although C seniority applicants are last to
be referred they are not eliminated from consider-
ation of initial employment opportunities because of
their low seniority.3 Testimony by Worley further re-
veals that, when C seniority registrants present evi-
dence of sufficient work experience with signatory
employers to warrant upgrading of their seniority rat-
ing, they are asked by hiring hall personnel to make
application for a "book." which the record discloses
also serves as a seniority identification card, a certifi-
cate of union membership, and a receipt book for the
payment of union dues. And. as already noted. Wor-
ley testified that such registrants are not told that they
do not have to make application in order to obtain
job referrals.
Although we agree with the Administratise Law Judge that the instant
proceeding differs from those cases cited by the General Counsel in hich
initial employment opportunities were denied to nonunion applicants. we
find it unnecessary. in view of our disposition herein. to pass .on his analysis
of the impact on this case of the cited Board precedent
244 NLRB No. 99
641
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Administrative Law Judge found from the
foregoing, and the record as a whole, that the General
Counsel failed to adduce evidence showing specific
examples of discrimatory treatment, or in support of
its premise that the job-referral procedures cannot
work independent of the union-security provisions.4
Rather, the Administrative Law Judge infers from the
testimony of one signatory employee-who has of-
fered employment for durations as short as 4 days-
that the 90-day work experience requirement can be
met by working for a variety of such signatory em-
ployers for periods of less than 30 days. He further
cites an abundance of undisputed testimony indicat-
ing that the work experience factor underlying job-
referral seniority is affirmatively predicated on valid
business considerations, i.e., the difficult and unsafe
nature of the work of towing barges, and the fact that
inexperienced personnel could easily suffer personal
injury and cause severe physical damage and finan-
cial loss for signatory employers. Accordingly. he
concluded, from the lack of proof of specific discrimi-
natory treatment, or that individuals must join the
Union to attain a higher than C seniority rating, and
the demonstrated business justification for the work
experience criteria, that the seniority preferences in-
herent in Respondent's exclusive hiring hall are not
unlawful.
Contrary to the Administrative Law Judge, we find
that the General Counsel has established a prima fa-
cie case that Respondent's implementation of its hir-
ing hall referral system, in strict adherence to the se-
niority preferences and in tandem with the union-
security requirements upon signatory employers, un-
lawfully favors jobseekers who are union members
over nonmembers and also requires signatory em-
ployers to discriminate with respect to hiring. The
General Counsel's case is strongly supported by the
testimony of Worley, Respondent's own witness, with
respect to the referral practices of the parties which
shows that membership is not only encouraged but
actively suggested, if not required, in the form of the
request of individuals seeking to upgrade seniority
ratings to make application for membership at that
time.
We do not agree with the Administrative Law
Judge that specific examples of discrimination are re-
quired for the finding of a violation herein.5 Nor do
we fault the General Counsel for failing to foreclose
4Cf. Local 928, International Longshoremen 's Association, A FL CIO, et al.
(International Marine Terminals, Inc.). 137 NLRB 588 (1962), in which the
Board held, in the absence of contracts containing union-security clauses.
that maintenance of similar referral arrangements was not unlawful.
sThe Board has held that mere maintenance of an agreement, like the one
herein, which grants referral preferences based on prior employment for
signatory employers constitutes a violation of the Act. Local Union No 77 of
International Brotherhood of Painters and Allied Trades, AFL CIO (Colortte.
Inc.j, 222 NLRB 607 (1976).
the theoretical possibility that nonmembers could ob-
tain sufficient work experience with signatory em-
ployers to qualify, for example, for B seniority ratings
without having to join the Union under the appli-
cable union-security provisions. For the burden of ne-
gating the General Counsel's prima fiacie case of dis-
crimination in hiring referrals falls on Respondent as
the sole custodian of the hiring hall records. Its failure
to do so creates an adverse inference that such evi-
dence in its possession is not favorable to Respon-
dent's case. 6
Finally, we disagree with the Administrative aw
Judge's blanket acceptance of Respondent's business
justification defense and his conclusion that such
valid business criteria render the referral procedures
lawful. Assuming, arguendo, that the evidence proves
a genuine necessity for requiring experienced workers
relating to reasons of safety, Respondent has failed to
adduce any evidence to distinguish between the work
experience acquired with signatory employers in con-
trast to other employers, or to show how experience
with the former meets the legitimate requirements
while the latter does not, or even whether the factor
of work experience has any valid bearing upon refer-
ral seniority.
From the foregoing and the record as a whole we
conclude that Respondent's hiring hall procedures in
fact cause signatory employers to discriminate unlaw-
fully with respect to hires, and illegally prefer union
members over nonmembers, in violation of Section
8(b)(l)(A) and (2) of the Act.
The Board, on the basis of the foregoing facts and
the entire record, makes the following:
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 5:
"5. The exclusive hiring hall and referral provi-
sions and practices contained in the collective-bar-
gaining agreements between Respondent and the par-
ties in interest violate Section 8(b)( I )(A) and (2) of the
Act.
"6. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act."
THE REMEDY
In order to effectuate the policies of the Act, Re-
spondent will be ordered to cease and desist from the
unfair labor practices found and it will be ordered to
operate the exclusive hiring hall in a nondiscrimina-
6 See Allis-Chalmers Corporation. 234 NLRB 350 ( 1978): Interlale Circuit,
Inc v. United States, 306 U.S. 208. 226 (1939): Drnoacor Plasti, and Te ile,
Division of Medline Industries. Inc. 218 NI.RB 1404, 1411 (1975)
642
SEAFARERS' INTL. UNION
tory manner; and to maintain records which accu-
rately reflect the basis on which each referral is made;
and to make available such records for inspection by
the Board's Regional Director or his agent.
Respondent will be further ordered to cease and
desist from in any like or related manner restraining
or coercing employees or applicants for employment
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, in accordance with the Board's re-
cent decision in Hickmort Foods, Inc., 242 NLRB
1357 (1979).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Sea-
farers' International Union, Atlantic, Gulf, Lakes and
Inland Waters District, AFL-CIO, St. Louis, Mis-
souri, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to upgrade seniority ratings of job ap-
plicants because their work experience is with nonsig-
natory employers, or from otherwise operating its ex-
clusive hiring hall in a discriminatory manner.
(b) Causing or attempting to cause all employers
with whom it has entered into a collective-bargaining
agreement to discriminate against any employee be-
cause of his lack of membership in Respondent
Union and in violation of Section 8(a)(3) of the Act.
(c) In any like or related manner restraining or co-
ercing employees or applicants for employment in the
exercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Revise and implement its exclusive referral pro-
cedures so as to register and refer all job applicants
on a nondiscriminatory basis and without regard to
whether they are members of Respondent Union.
(b) Notify employers with whom it has entered
into a collective-bargaining agreement of the revision
in its exclusive referral procedures.
(c) Maintain a book or semipermanent type of rec-
ord to reflect accurately, fairly, and nondiscrimina-
torily the operation of the hiring hall referral system,
and for a period of I year disclose to the Regional
Director for Region 14, or his agents, the manner of
operation of the hiring hall.
(d) Post at its places where notices to employees,
applicants for referral, and members are posted cop-
ies of the attached notice marked "Appendix." 7 Cop-
7In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
ies of said notice, on forms provided by the Regional
Director for Region 14, after being duly signed by an
authorized representative of Respondent Union, shall
be posted by it immediately upon receipt thereof, and
be maintained by if for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent
Union to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Furnish the Regional Director for Region 14
signed copies of such notice for posting by American
Barge Line Company; Inland Tugs Company; North-
ern Towing Company; Fall City Towing Company:
Orgulf Transport Company; National Marine Ser-
vices, Inc.; Dixie Carriers, Inc.; Southern Ohio Tow-
ing Company; Ozark Marine Company, and Gulf Ca-
nal Line, said Employers being willing, at all
locations where notices to employees are customarily
posted.
(f) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order.
what steps Respondent Union has taken to complN
herewith.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
WE Wl. NOT refuse to upgrade seniority rat-
ings of job applicants under our exclusive refer-
ral contract because their work experience is
with employers other than those with whom we
have a collective-bargaining agreement, and WE
WILL NOT otherwise operate our exclusive hiring
hall in a discriminatory manner.
WE WILl. NOT cause or attempt to cause any
employers with whom we have a collective-bar-
gaining agreement to discriminate against any
employee in violation of Section 8(a)(3) of the
Act.
WE WILL NOT in any like or related manner
restrain or coerce employees or applicants for
employment in the exercise of the rights guaran-
teed them by the Act.
WE WILL revise and implement our exclusive
referral procedures so as to register and refer all
job applicants on a nondiscriminatory basis and
without regard to whether they are members of
this Union.
WE WILL notify all employers signatory to or
bound to a collective-bargaining agreement with
us, including American Barge Line Company:
643
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inland Tugs Company; Northern Towing Com-
pany; Fall City Towing Company; Orgulf
Transport Company: National Marine Services,
Inc.: Dixie Carriers, Inc.; Southern Ohio Towing
Company; Ozark Marine Company; and Gulf
Canal Line, of the revision in our exclusive refer-
ral procedures.
WtE WIL. maintain records which accurately
and fully reflect the basis on which each referral
is made under our exclusive referral procedures,
and, upon request of the Regional Director for
Region 14 of the National Labor Relations
Board, WE wILL make available to the said Re-
gional Director, or his agents, for inspection and
copying at all reasonable times, all our records
relating to the operation of our exclusive referral
procedures under our collective-bargaining
agreements with employers.
SEAFARERS' INTERNATIONAI UNION, ATLAN-
TIc, GULF, LAKES ANI> INLAND WATERS Dis-
TRICT, AFL-CIO
DECISION
STAITEMENI OF IIF CASE
NORMAN ZANKEI, Administrative Law Judge: This case
was heard before me on July 24, 1978, in St. Louis. Mis-
souri.
Upon an original charge filed by Marvin W. Myers (here-
inafter Myers) on January 12. 1978. against Seafarers' In-
ternational Union of North America, AFL CIO (hereinaf-
ter called the International), and upon a first amended
charge filed by Myers on June 27, 1978. against the Interna-
tional and Atlantic, Gulf Lakes and Inland Waters District
(hereinafter called the district) an amended complaint and
notice of hearing was issued by the Regional Director for
Region 14 of the National Labor Relations Board on July
5, 1978, against the International and the District.2
In essence, the amended complaint alleges that the Inter-
national and the district violated Section 8(b)( I )(A) and (2)
of the National Labor Relations Act, as amended, by hav-
ing maintained, enforced, and otherwise given effect to an
unlawful exclusive hiring hall arrangement, and by having
failed and refused to refer Myers to employment because he
had not been qualified pursuant to the alleged unlawful
hiring hall arrangement, thereby causing or attempting to
cause the employers specified as Parties in Interest to dis-
criminate against Myers.
International and the district filed timely answers to the
amended complaint, admitting certain allegations, but de-
At the hearing I granted a motion to dismiss the complaint insofar as it
alleges violations against the International Union, there being absolutel no
evidence that the International was responsible for any of the alleged unfair
labor practices. Counsel for the General Counsel makes no contention in his
post-heanng brief that the dismissal was in error
' Previously, on May 24. 1978, the Regional Director had issued a com-
plaint and notice of hearing. based on the original charge, against only the
International.
nying the commission of any unfair labor practices. Addi-
tionally, the district set forth an affirmative defense based
on the 6-month statute of limitations contained in Section
10(b) of the Act. This affirmative defense claims the unfair
labor practices alleged patently occurred more than 6
months prior to the June 27. 1978, date when a charge was
first filed against the district. Accordingly. the district prays
for dismissal of the allegations against it because the
amended complaint is time barred.
All issues were fully litigated at the hearing; all parties
(except the Parties in Interest) were represented by counsel
or other representatives and were afforded full opportunity
to examine and cross-examine witnesses, to introduce evi-
dence pertinent to the issues, and to engage in oral argu-
ment. The Board's counsel for the General Counsel and
counsel for the district filed post-hearing briefs which have
been carefully considered.'
Upon the entire record, and from my observation of the
witnesses and their demeanor in the witness chair, and
upon substantial reliable evidence, "considered along with
the consistency and inherent probability of testimony"
(Universal Camera Corp. v. N.L.R.B., 304 U.S. 474. 496
(1951)). I make the following:
FINDINGS AND) CoN('I SIONS
1. JURISI)II(rON
The parties stipulated that Parties in Interest American
Barge Lines Company. Inland Tugs Company, and South-
ern Ohio Towing Company, are each engaged in the opera-
tion of towboats along the inland waterways of the United
States as a link or instrument of interstate commerce and
that each receives annual gross revenues in excess of
$50.000 from such operations. The parties stipulated that
each of these employers is engaged in commerce within the
meaning of Section 2(2). (6), and (7) of the Act.
Additionally. uncontradicted testimony from officials of
Parties in Interest Ozark Marine Service, Orgulf Transport
Company and National Marine Services. Inc.. reveals that
each receives annual revenues in excess of $50,000 from the
inland waterway towboat operations each performs.
In view of the foregoing, and because no party contends
the Board is without jurisdiction herein, I find (in accord-
ance with the stipulations) that the Parties in Interest iden-
tified in this section of the Decision are employers engaged
in commerce within the meaning of the Act and that it is
appropriate to assert jurisdiction herein.
II. ItlE RESPONI)INT-I.AB()R ORGANIZA I()N
4
The District's correct name is Seaftrers' International
Union. Atlantic, Gulf Lakes and Inland Waters District.
AFI. CIO. The district admitted, the record reflects, and I
find, it is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
'The General Counsel's unopposed motion to correct the official tran-
script. submitted with his brief. is hereby granted.
4 Because the complaint allegations against the International hare been
dismissed: and, particularly because there has been no challenge to hat
dismissal. only the District will be considered hereinafter.
644
SEAFARERS' INTL. UNION
111. HF All .(ilct) lNNlAIR LABOR PRA('II S
A. Background
The District, an uncontested autonomous affiliate of Sea-
farers' International Union of North America, AFL CIO.
historically has represented (and now represents) a variety
of unlicensed employees of numerous employers which op-
erate towboats and tugboats on the Atlantic, Pacific. and
Gulf Coast of the United States. The employers which are
Parties in Interest herein perform towboat services on in-
land waterways. The inland water network encompasses
the Mississippi River from New Orleans, Louisiana. north-
ward: the Illinois. Ohio. Cumberland, Green and Tennessee
Rivers. The District's jurisdiction extends also to include
the Great Lakes.
The amended complaint allegations involve employers
which operate from St. Louis. Missouri. Each of these em-
ployers (the Parties in Interest) is contractually bound to
the District by virtue of separately negotiated collective-
bargaining agreements. These allegations emanate from the
existence and implementation of the contractual seniority
and referral provisions applicable to unlicensed personnel.
principally deckhands and cooks.'
The relevant provisions of the District's "Unlicensed
Shipping Rules" are, verbatim, as follows:
IC. All tugboatmen, bargemen, or dredgemen shall be
deemed to have shipped regularly within the meaning
of these Rules if he has been employed no less than
ninety (90) days during each calender year aboard one
or more vessels covered by a collective-bargaining agree-
ment between the Union and the owner or operator ol
such vessels. Emphasis supplied.]
Additionally, the unlicensed shipping rules provide for
the existence of three seniority rating classes designated A.
B, and C. The A seniority rating is the highest, while C is
the lowest. More specifically, C seniority is granted appli-
cants for job referral who have been employed for less than
90 days per year for each of 2 consecutive years by employ-
ers signatory to collective-bargaining agreements with the
District. B seniority is awarded to registrants for job referral
who have been employed by signatory employers for 90
days in each year for not less than 2 nor more than 4 years;
and A seniority is accorded to registrants for job referral
who have been employed by signatory employers for at
least 90 days each year for not less than 4 years. The parties
agreed that each employer signatory to a collective-bargain-
ing agreement with the District is subject to, and operates
under, the unlicensed shipping rules.
The collective-bargaining agreements, in evidence, signed
by each Party in Interest (except Delta Queen) contain
identical hiring hall referral clauses to which. the parties
stipulated, each such employer signatory is bound in seek-
ing referrals of employees.
Additionally, each of those collective-bargaining agree-
ments contains a seniority provision identical to that con-
At the hearing it became apparent that the employers also have so-called
licensed personnel working for them. Because it appears that licensed per-
sonnel are supervisors within the meaning of the Act, the General Counsel
moved to delete from the amended complaint all references to licensed per-
sonnel. I granted this motion.
tained in every other such collective-bargaining agreement.
After referring to the A. B. and C seniority ratings as al-
ready described, each collective-bargaining agreement con-
tains the following clause governing revision of one's senior-
ity from C to A. The relevant text of that clause is:
Article 1, Section 6-B "for the purpose of upgrading
seniority, "shipping regularly" shall mean employment
as a tugboatman, bargeman. or dredgman no less than
ninety (90) days during each calender year abroad one
or more vessels covered b a Collective Bargaining
.4greement hbetween rlhe Ltion aond the owner or operator
o such vessels.... assignments to jobs within the fore-
going classes of seniority rating shall be made without
regard to Union affiliation. [Emphasis supplied.]
Although but a few employers are identified as Parties in
Interest herein, the record reflects that the District main-
tains similar collective-bargaining agreements with approxi-
mately 106 employers operating towboats and tugboats
within its jurisdiction.
The operation of the hiring hall provision was described
by the District St. Louis, Port Agent. Michael Worlev. His
testimony is unrefuted and substantially adopted by the
General Counsel's brief. In effect. Worley testified that the
district maintains a registration list upon which individuals
seeking job referral from the district are sent out in response
to employer requests. The physical act of registration is not
necessarily done by Worley. Frequently, that task is dele-
gated to the district's clerical employees. Worley testified
that when an individual initially registers for a job referral
no inquiry is made as to union membership. Instead, the
registrant must establish his proper seniority rating by
showing either proof of his current seniority rating as indi-
cated on a seniority identification card, or by delivering
check stubs, or sign-in and sign-out slips which will reveal
the amount of work experience in the jobs for which refer-
ral is requested. All registrants are then placed on the refer-
ral list. based on their demonstrated experience with signa-
tory employers, as provided by the unlicensed shipping
rules. Referrals to jobs with signatory employers are then
made according to the shipping rules, as follows. When a
call for referral is received in the District's hiring hall it is
posted on the bulletin board. Those having A seniority and
who are present are orally afforded the opportunity to be
referred. If no A seniority personnel are present. then an
oral offer is made to the B category personnel then in the
hiring hall. If there are no B seniority personnel present,
then the available job is referred to the union headquarters
in Piney Point. Maryland. if a so-called interrating posi-
tion.6 If not an interrating position. then the job is referred
to the nearest port to St. Louis which is Paducah., Ken-
tucky, where it is offered to the A and B seniority personnel
available at that location. If there are no A and B personnel
at Paducah. the referral process reverts to the St. Louis
District hiring hall where it is offered to A. B, or C person-
nel then present in the union hall. If none of these catego-
ries is present, then the daily registration list is used to make
telephonic offers, in order. to A. B. or C personnel who had
registered that day. Worley's oral testimony was confirmed
6 No definition of interraling" job was provided but It is not crucial to the
Instant decision
645
I)-:(ISIONS OF NAT'IONAL. ABOR RELA'I IONS BOARD
by documents received in evidence. Worley testified that for
the period September 1. 1977. to the date of the instant
hearing the district referred 52 A seniority applicants. 182 B
applicants, and 101 ( seniority applicants for employment
to signatory employers who had requested job referrals.
As to union membership. Worley credibly testified that
registrants are not required to complete an application for
union membership. Hie did state, however, that union mem-
bership is encouraged. Hie explained that if a registrant ap-
pears to have the requisite work experience to upgrade his
seniority rating as provided in the shipping rules. the regis-
trant is asked to complete an application for a "book." The
book, a copy of which is in evidence. serves the dual func-
tion of constituting the seniority identification card and cer-
tificate of membership. It also serves as receipt for union
dues. In direct response to the counsel for the General
Counsel, Worley testified that the registrants are not told
they do not need to fill out a membership application to be
referred.
The District maintains records of employment for each
registrant referred. These records reflect the number of days
those employees worked for employees having collective-
bargaining agreements with the District. Additionally, as
indicated above, individual registrants provide the District
with their work experience with signatory employers at the
time of registration.
Although the collective-bargaining agreements contain
the exclusive hiring provisions, uncontradicted testimony
from officials of some of the contracting employers clearly
indicates that the signatory employers do not exclusively
rely on the referral provisions in filling their needs for a
crew. Frequently, the employers first offer available posi-
tions to employees who have worked previously for them.
The employers request referral of applicants from the Dis-
trict when they are unable to obtain skilled and experienced
employees who had previously worked for them.
There is a plethora of evidence to reflect that work expe-
rience is a significant factor in the hiring process. Thus, the
uncontradicted testimony of the Ozark marine president.
Paul Striegel, was to the effect that "making up a tow is a
dangerous job where an inexperienced employee could lose
a limb or fall overboard." Striegel also testified that the best
assurance of hiring individuals with the requisite work ex-
perience was provided by hiring former employees or those
who had worked on vessels of other signatory employers. In
a like vein, Durk Allen, chief crew dispatcher for four Par-
ties in Interest, testified that experience on other towboats
gave assurance of the required safety factor needed by
deckhands. Additionally, Allen testified that there is a need
for experienced cooks because the cook is responsible for
taking inventory of food stocks on the vessels and making
up grocery lists. Moreover, it is expected that the crews will
be fed meals equivalent to those served at home. William
N. Lay, operations vice president for American Commer-
Because I credit Worley's testimony that no inquiries regarding union
membership are made of first-time registrants. I place no probative signif-
icance upon the admitted failure to advise the registrants that referral is not
conditioned upon membership. Indeed, the record is replete with evidence
relating to Myers which reflects that he had been consisently referred to
positions without having been requested to complete a membership applica-
tion or actually be a District member.
cial Barge l.ines, the largest signatory employer operating
on the inland waterways. testified that during the negotia-
tions for the collective-bargaining agreement the parties dis-
cussed the application of the shipping rules in the context of
a noted need for safer employees and to expedite the em-
ployer's operations in tow makeups.
As to union membership Striegel testified without con-
tradiction that a prospective employee need not be a union
member in order to be employed as a crew member. He
stated that when the District is asked for a referral. the
request is made in terms of asking for an experienccd indi-
vidual in a particular job classification without regard to
union membership.
Finally, regarding the referral operation, the record re-
flects that applicants for referral must be physically quali-
fied. Assurance of such qualification is made by the produc-
tion of a "fit-for-duty" card which is obtained, after a
physical examination, from the Seafarers' Welfare Clinic. A
physical examination is part of the registration for referral
process. Thus, when Myers appeared at the District hiring
hall in December 1977 to renew his registration (which
lapses after 90 days) he was required to undergo a physical
examination. In any event, the collective-bargaining agree-
ments provide that the District "agrees to furnish the . ..
(employer) . . . with capable, competent, and plnsically fit
persons." (Emphasis supplied.)
B. The Affirmative Defense and Myers' Personal Case
The complaint paragraphs 7 (D) and (E) allege. respec-
tively, that since on or about September I. 1977. and at all
times thereafter, the district has failed and refused to refer
Myers to employment; and those activities have been en-
gaged in, in order to encourage membership in the district.
"thereby causing or attempting the signatory employers to
discriminate" against Myers in violation of Section
8(b)(IXA) and (2) of the Act.
The 10(b) defense interposed by the District addresses
the propriety of these allegations. Principally, the District
contends that the statutory 6-month period of limitations
effectively prevents unfair labor practice findings against it
based on activities which occurred prior to December 27,
1977. inasmuch, as already noted, the first time any charge
had been filed against the District was on June 26, 1978,
when Myers filed the amended charge. In the alternative,
the district claims the record contains no evidence whatso-
ever of any restraining, coercive, or discriminatory treat-
ment toward Myers.
The General Counsel argues there is no merit to the affir-
mative defense. He claims the filing of the original charge
on January 12, 1978. is sufficient to permit findings of viola-
tion, if any, to be made upon activities occurring on and
after a date within the immediate 6-month period preceding
January 12, 1978. If this position is correct, it follows that
the September 1. 1977. date is encompassed by the original
charge and appropriately contained within paragraph 7(D)
of the complaint. Additionally, the General Counsel con-
tends the filing of the original charge properly confers juris-
diction upon the Board so as to allow the addition of the
District as a respondent despite the fact the original charge
named only the International as a charged party. The Gen-
646
SEAFARERS' INTL.. UNION
eral Counsel predicates his position upon the equitable con-
siderations enunciated by the Board and court in Ashville-
Whitney Nursing Home, 188 NLRB 235 (1971). enlorce-
ment sub nom. N.L.R.B. v. Clark & Pierce denied on other
grounds 468 F.2d 459, 464-465 (5th Cir. 1972).
I find the following record evidence to be material and
operative in resolution of the subject issues:
I. As noted, the original charge was filed on January 12.
1978, against only the International. Worley was listed as
the "union representative to contact."
As already observed, the evidence reflects the District is
an operationally autonomous entity. It is part of a feder-
ation of over 20 other similar organizations which utilize
the International as a parent.
Worley is employed and paid by the District. He partici-
pated in the administrative investigation of the original
charge, providing two affidavits to the Board's investigating
agents. In the first affidavit given on January 26. 1978. Wor-
ley clearly idenitified himself as port agent of the District.
His later affidavit given February 24. 1978. contains the
identification of his employer in more general terms. It
omits the word "District." Worley explained that in collo-
quial terms, he customarily refers to his employer as "Sea-
farers' International Union" or "SIU." I am satisfied that.
given the unwieldly proper name of the District. Worley
satisfactorily explained the variation in identification of the
labor organization in his two affidavits. Thus. I conclude.
contrary to the General Counsel's contention, this discrep-
ancy is not probative evidence of an intention by the Dis-
trict to obscure the true facts and cause confusion.
2. A complaint and notice of hearing against only the
International issued on May 24, 1978. The International
filed an answer on May 30, 1978. The answer admitted
Worley possessed the title of"St. Louis Agent" as alleged in
the original complaint. However, that answer denied he was
an agent of the International.
The totality of the evidence before me demonstrates
Worley, indeed, was not at any time material herein an
agent of the International.
3. As noted, the first time the district was specifically
named as a charged party was June 27, 1978, when the
amended charge was filed and served.
The General Counsel argues "obviously, there has been
confusion regarding the proper party to be named as Re-
spondent . . . . Counsel for the General Counsel takes the
position that Respondent District had the information
within its possession to clarify any possible confusion which
may have arisen and Respondent District's failure to do so
should not allow Respondent District to escape the finding
of violation."
I conclude that the General Counsel's position is miscon-
ceived. The Ashville-Whitney Board Decision factually is
distinguishable from the case at bar. In Ashville-Whitney
there was a determination that service of a charge was
made upon an individual found to be an apparent agent of
a respondent who had not itself been served with a copy of
the charge prior to the expiration of the 10(b). I find the
evidence before me insufficient to conclude Worley was
held out to be an apparent agent of the International at any
material time. Indeed, I view Worley's specific identifica-
tion of the district as his employer in his January 26 affida-
vit both refutes such a contention and indicates actual no-
tice to the General Counsel's investigating representatives
that the original charge possibly erroneously named the In-
ternational as a charged party. At least. the Board's re-
gional authorities were then placed on notice of the poten-
tial need to amend the original charge.
I acknowledge there is language in the court decision of
Ashville-Whitne which declares the principle argued by the
General Counsel. Thus, the court stated "a defendant who
beclouds his whereabouts should not be entitled to benefit
from the process server's consequent confusion." (468 F.2d
459, 464). The General Counsel attributes the failure to
name the District to the fact that Myers is an unskilled
layman. From this, I am apparently required to infer that
Worley, presumably more sophisticated in labor relations
and business matters than Myers. sought to camouflage the
identity of the proper charged party. On this record. I am
unable and unwilling to do so. The General Counsel's argu-
ments ignore the obvious and imperative requirement of
due diligence reposed in his own offices. I have already
concluded that Worley withheld nothing. The Internation-
al's answer to the original complaint was a legitimate re-
sponse supported, as noted. bh the evidence and was not
inconsistent with Worle\'s own testimony contained in his
first affidavit. No evidence whatever was adduced to show
Worley had been authorized by the International to partici-
pate in the investigation of the original charge. I will not
infer such authority. It is not uncommon that citizens vol-
untarily participate in Board-conducted investigations of
alleged unfair labor practices. Frequently, persons having
no direct connection with the matter under investigation or
the parties involved are cooperating witnesses and affiants
in such investigations. In the circumstances herein, it would
he a distortion to attach some sinister significance to Wor-
ley's activities during the course of the investigation.
In short, the evidence persuades me that the District had
not, in any way, impeded the ability of the General Counsel
to have ascertained the true identity of the parties involved
sooner than the date on which the amended charge was
filed.
In the instant context. I find it was not the District's
burden to come forward with the clarifying facts. As earlier
observed, the General Counsel's representatives first be-
came aware that the district might be a necessary party on
January 26, 1978, when Worley gave his first affidavit.
Moreover, I find the "confusion" upon which the General
Counsel now relies was created by the clearly apparent dif-
ference in the description of the labor organization which
employed him. Thus, on February 24, 1978. the General
Counsel's failure to have investigated or taken action on
that knowledge at any time prior to the filing of the
amended charge is unexplained. What is certain is that the
Board's General Counsel, or his representatives, were pos-
sessed of the information from which the "confusion" could
have been detected and clarified approximately 4 months
before the amended charge had been filed-and 3 months
before the original complaint had been issued. In this pos-
ture, it is virtually impossible and clearly inequitable to
conclude, as argued by the General Counsel. that it is the
district which is the source of the confusion. I conclude that
the General Counsel's contentions herein suggest a danger-
647
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ous shift of burdens and responsibilities which could severly
cripple the credibility of government in general and the
Board in particular.
In sum, I find no substantial evidence to apply the Ash-
ville-Whitney rationale.8 I conclude that neither the Interna-
tional nor District was responsible for the confusion in
identification of the charged parties. Inasmuch as the dis-
trict was first brought into, and apprised of, the charges
herein on June 27, 1978; and had not been joined as
charged party until that time through on fault of its own, I
find that the 10(b) date as to the District is December 27,
1977.
It is well established that an unfair labor practice finding
may be based on conduct which occurred only within a 6-
month period prior to the filing of a charge. l.ocal Lodge
No. 1424, International Association of Machinists, AFI.
CIO, et al. [Bryan Manufacturing Company] v. N.L.R.B.,
352 U.S. 411 (1960). Thus, I am precluded from consider-
ation of any evidence in the instant record of activity which
occurred prior to December 27, 1977, by the District as the
basis for finding the District committed any unfair labor
practice.
The General Counsel adduced evidence of only one inci-
dent which, it is claimed, proves the complaint allegations
specifically as to Myers. This incident is supposed to have
occurred on December 19, 1977. That day Myers appeared
in the District's hiring hall to renew his registration of refer-
ral. At that time, Myers allegedly was told by one of the
district clerical employees who was administering the hiring
hall procedures that he would have to become a member of
the District in order to be referred to a job. The General
Counsel contends that remark is attributable to the District
because Worley was present. Both Myers and Worley agree
Worley was physically in the District's hall, but in the
"background." Myers did not claim that Worley was a di-
rect participant in the conversation where the alleged un-
lawful remark was made. Worley could not recall hearing
such a remark. I find it unnecessary to resolve the issue
because it is clear that even if the alleged unlawful remark
had been made and could be imputed to the District, it
occurred prior to the 10(b) date. Accordingly, I find that
there is no merit to the allegations of paragraph 7(D) and
(E) of the complaint.
Assuming my analysis of the affirmative defense is im-
prudent, I would nonetheless find Worley a more reliable
witness than Myers. Although there is no reason to believe
Myers fabricated any of his testimony, the record contains
repeated demonstrations of Myers' admitted faulty recollec-
tion of events. The record is pervaded with Myers' ac-
knowledgement of poor recall. Additionally, in view of the
mutually corroborative testimony of Myers and Worley
that Worley was in the "background" of the alleged unlaw-
ful conversation, I am not satisfied that the record substan-
tially shows Worley was such a party to the conversation as
to have been able to hear the alleged unlawful remark. If
Worley did not hear it, he cannot be charged with having
authorized, ratified or condoned it.
Finally, it is inherently implausible that the remark was
even uttered. There is ample evidence which I find proves
' Similarly. I conclude the instant facts are not analogous to those in Ross
Sand Company, Inc., 219 NLRB 915. 916 (1975).
that Myers had been consistently referred to positions by
the district whenever he sought work through the hiring
hall at various times beginning in 1973. There is no evi-
dence that the rules for referral had changed in December
1977. Based on the foregoing factors, if required to resolve
the merits, I would conclude (but do not explicitly do so at
this time) that Myers was not told that union membership
was a sine qua non for referral and that the allegations per-
taining to him specifically are not supported by a prepon-
derance of evidence.
Notwithstanding my conclusions regarding the applica-
bility of Section 10(b) to the allegations of paragraphs 7(D)
and (E), there remains for consideration the allegations of
complaint paragraphs 7(A), (B). and (C). Those para-
graphs, conjunctively, contain the substance of the General
Counsel's contentions that the district violated Section
8(b)(1)(A) and (2) by maintaining and implementing its ex-
clusive hiring arrangement with signatory employers. This
is so because it is eminently clear that those hiring hall
provisions were implemented throughout and were ex-
pected to be implemented even to this date by virtue of the
existence of the various collective-bargaining agreements
between the district and the industry employers.
C. The RefJirral Provisions
As observed in section III, A, "Background." supra. the
undisputed evidence shows that all collective-bargaining
agreements between the District and signatory employers
contained an identical exclusive hiring provision. The Gen-
eral Counsel does not attack the validity of the hiring hall
itself. Rather, the thrust of the General Counsel's theory of
violation rests upon the combination of the prescribed se-
niority rating requirements contained in the unlicensed
shipping rules considered together with what the General
Counsel characterizes as a "standard union security
clause."9 I find the relevant written guidelines quoted here-
inabove for operation of the hiring hall indisputably condi-
tioned the employment opportunities of employees upon
their work experience obtained only by having worked for
signatory employers. Even Worley admitted employees are
not credited for service towards seniority ratings if that ex-
perience was obtained with employers who have no collec-
tive-bargaining agreement with the District.
The General Counsel contends the hiring hall provisions
patently violates Section 8(b)(1)(A) and (2) because they
rely on the contract's seniority provisions in conjunction
with the unlicensed shipping rules. The General Counsel
argues that "in light of the union security provisions ... it
can easily be inferred that in the normal course of opera-
tions the seniority requirements of shipping with signatory
employers is equivalent with becoming a union member."
The District contends that referral hall procedures have
been approved by decisional authority in the maritime in-
dustry based upon the demonstrated need for experienced
work crews, and that (in any event) the record fails to dem-
onstrate job referrals require union membership.
9 In reality, the union-securit) clause contained in each of the collective-
bargaining agreements provides for two types of union security:
(I) maintenance-of-membership, and (2) union shop calling for employ-
ees to become members of the District after 30 days of employment.
648
SEAFARERS' INTL. UNION
D. The Hiring Hall
As noted, the General Counsel contends the hiring hall
provisions of the applicable collective-bargaining agree-
ments violate Sections 8(bh(1)(A) and (2) of the Act because
they provide an unlawful preference to individuals who
have performed a minimum requirement of work for em-
ployers having collective-bargaining agreements with the
District.
The District asserts the hiring hall provisions are founded
on legitimate business considerations, have historically been
operated in a nondiscriminatory manner, and there is a de-
cisional basis for maintenance of a seniority system within
the maritime industry.
The General Counsel's arguments have superficial ap-
peal. He argues the District hiring hall provisions condition
"employment opportunities" upon union considerations by
rewarding employees who had previously been represented
by the District. My analysis of available precedent, how-
ever, persuades me the complaint allegations relative to the
hiring hall should be dismissed.
I conclude the issue before me is not as broad as urged by
the General Counsel. His theory of violation proceeds from
established principles which make unlawful a referral sys-
tem which actually encourages, or has the tendency to en-
courage, membership in a labor organization. Though not
explicit on this point, the General Counsel's theory impli-
citly uses the existence of the union-security provisions con-
tained in the existing collective-bargaining agreements as
evidence of union encouragement. Thus, the union-security
provisions require District membership after 30 days of em-
ployment with a particular employer. The unlicensed ship-
ping rules, as incorporated into the collective-bargaining
agreements, provide for upgrading of seniority rating by
performance of a minimum of 90 days for 2 consecutive
years. Because that service must be performed on vessels
owned or operated only by signatory employers. the Gen-
eral Counsel's theory assumes an employee must have
joined the District at some time prior to completion of the
minimum 90-day experience requirement.
I find the record does not support this factual assump-
tion. Thus, there is uncontested evidence herein that em-
ployment with a specific signatory employer may be as
short as 4 days. In this context, I conclude it is possible to
work the required 90-day minimum without being sub-
jected to the application of the union-security clause. This
is so if an employee varies the employers for whom he
works. Regrettably, no other specific evidence was adduced
to show the length of service performed by employees, in
any particular time period, for any particular employer. I
am mindful of the evidence indicating Ozark Marine ex-
pects its employees to work at least approximately 30 days.
Because such evidence was derived from only one of the
many employers involved herein, and because the record
shows 335 individuals possessing A, B. and C seniority rat-
ings had been referred by the District for employment be-
tween September 1, 1977, and the date of hearing, I con-
sider the evidence relating to Ozark Marine not sufficiently
probative for purposes of making the assumption upon
which the General Counsel's theory apparently rests. Ac-
cordingly, I find the more existence of the union-security
provisions does not necessarily provide substantial support
for the General Counsel's position.
Next. I conclude that the General Counsel's reliance
upon two Board cases is misplaced. Arguing the "Board has
found that a union may not utilize a seniority-ranking sys-
tem which conditions emplovment opportunities on union
considerations" the General Counsel cites International
Photographers of The Motion Pictures Industries, Local 659
of the International Alliance of Theatrical Stage Emplovees
and Moving Picture Machine Operators of the United States
and Canada (MPO TV of California. Inc. Y A Productions,
Inc ), 197 NLRB 1187 (1972): and its progeny. Director's
Guild of A merica, Inc. (Association of Motion Picture & Tele-
vision Producers, Inc.), 198 NLRB 707 (1972).
In 4A TSE Local 659. the Board held an "Industry Expe-
rience Roster" analogous to that in the case at bar was
interpreted and operated so that initial emplonyment was
based strictly upon union considerations. The Board com-
mented that "no matter what qualifications an employee
brings with him, if he has not, in the past, been represented
by Respondent the UInion], he cannot gain employment
with any employer who is a party' to a collective bargaining
agreement." [Emphasis supplied.] 197 NLRB at 1190.
Again, in Director's Guild, the Board examined the op-
eration and application of roster provisions, the placement
on which required employees to have obtained experience
with employers who were signatories to collective-bargain-
ing agreements with the labor organization there involved.
In that case, the Board found the referral provisions had
been so interpreted and applied as "to be an invasion of the"
employees' Section 7 rights.
Ostensibly, IA TSE Local 659 and Director's Guild cases
support the General Counsel's contentions in the case at
bar. However, I find them distinguishable. First. I perceive
the lesson derived from those cases to require scrutiny of
the manner of implementation of the alleged unlawful pro-
visions. In neither case did a violation necessarily flow from
the existence of so-called preferential seniority alone. In
both cases the labor organization involved actively impeded
the ability of the alleged discriminatees to obtain employ-
ment or remain on a job once they were employed. There is
no evidence in the instant case showing the district was
active in preventing anyone from working. Indeed, the in-
stant record demonstrates the district took affirmative steps
to assure the maximum number of available employees
were referred to jobs. Also, the district assisted employees
once they had obtained employment by strict enforcement
of certain provisions of the collective-bargaining agreement.
Thus, the evidence shows Worley intervened on Myers' be-
half to obtain for him (at a time when when he was not a
member of the District) travel reimbursement. Additionally.
it is uncontested that Worley continued his efforts to refer
Myers to jobs even after Worley had been advised that an
employer did not wish to reemploy Myers. The district pro-
tested because the employer had not followed the contrac-
tual provisions regarding formal notice to the district in
such cases.
Next, I conclude the principal issue involved in IA TSE
and Director's Guild is different from the case befobre me. I
perceive the issue before me to involve referral preference.
In 1.4 TSE Local 659 and Directror's Guild the issue was the
effect of the referral procedure upon initial emplovment. The
649
I)Et(ISIONS OF NATIONAL LABOR RELATIONS BOARD
difference between conditioning initial employment upon
union considerations and imposing that same condition on
referral preference is quite real. That distinction was recog-
nized by the Board when explicating its rationale in IA TSE
Local 659. Thus, there the Board observed "an employee
cannot conmlerce work in a unit represented by Respondent
unless he has previously worked in a unit covered by a
collective bargaining contract to which Respondent and/or
IATSE is a party" (197 NLRB at 1189). The Board in the
cases cited by the General Counsel found that the referral
procedures violated the Act because they prevented em-
ployees from going to work. That is not the issue for my
determination. The referral procedure attacked herein re-
lates, instead, to what order employees will go to work.
Preferential referral procedures have been in effect, with
approval, in the maritime industry for many years. In Na-
tional Union of Marine Cooks and Stewards a/w CIO (Pa-
cific American Shipowners' Association), 90 NLRB 1099
(1950), the Board stated that a collective-bargaining pro-
posal which granted referral preference to unlicensed per-
sonnel who had been employed by signatory employers and
had seniority by reason of previous employment with those
signatories "does not, on its face, require discrimination be-
cause of union affiliation" (90 NLRB at 1101). In National
Union of Marine Cooks and Stewards, the Board noted that
the referral provision explicitly required the hiring provi-
sions to be applied without discrimination by reason of
"membership or nonmembership in the Union." But, in
that case, the evidence showed the Union disregarded that
admonition.
In the instant case each collective-bargaining agreement
contains a clause entitled "equal opportunity" which pro-
vides, in salient part, "during the term of this agreement
neither party shall discriminate against any employee or
applicant for employment because of race, color, sex, age,
religion, national origin or Union membership" (Emphasis
supplied). I conclude the facts in this case show adherence
to that clause and membership was not a consideration in
referral by the district of employees for initial employment.
As already indicated, the evidence reveals that from Sep-
tember 1, 1977, to the hearing date 101 C seniority regis-
trants were referred by the District to signatory employers.
This is more than the number of A seniority registrants
referred during the same time. The District argues such a
statistic negates an inference of discriminatory implementa-
tion of the referral procedures. I disagree. Arguably, such
statistics actually might prove the alleged discrimination
because so many more applicants had been prevented from
ascending from C seniority to A seniority status due to the
presence of the instant seniority rules. Despite this disagree-
ment with this particular contention of the District, I do
consider these statistics to reflect that the registrants' lack of
union membership did not impede their initial employment
opportunities.
As aptly stated by the Supreme Court in Local 357 Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America [Los Angeles-Seattle Motor Ex-
press] v. N.L.R.B., 365 U.S. 657, 672 (1961): "The Board
recognizes that the hiring hall came into being 'to eliminate
wasteful, time-consuming, and repetitive scouting for jobs
by individual workmen and haphazard uneconomical
searches by employers.... the hiring hall at times has been
a useful adjunct to the closed shop. But Congress may have
thought that it need not serve that cause, that in fact it has
served well both labor and management-particularly in
the maritime field." Thus, the Court focused on the legiti-
macy of the reasons for the existence of referral preference.
I conclude that if valid reasons for the preferential arrange-
ment exist then there is no room to infer the instant provi-
sions are unlawful, absent direct evidence (which does not
exist herein) that the provisions are operated in a discrimi-
natory manner.
As observed herinabove, there is credited and convincing
evidence in this record that the instant referral procedures
were established and are maintained for safety and the con-
venience of employers in obtaining referrals. This evidence
is uncontested. I find these criteria to be appropriate con-
siderations in the selection of crews to man the vessels of
signatory employers. I find no evidence in this case upon
which a conclusion could be drawn that the referral provi-
sions were illegally motivated. The General Counsel argues
that such considerations were recognized by Congress in
enacting Section 8(f)(4) relating to the construction indus-
try. Thus, the General Counsel distinguishes the cases of
Interstate Electric Company, 227 NLRB 1996 (1977), and
Local Union No. 68, International Brotherhood of Electrical
Workers (Howard Electric Company), 227 NLRB 1904
(1977), cited by the District to demonstrate that preferential
referral, based on legitimate considerations, has been held
lawful. It is true, as the General Counsel contends, that the
Interstate and Howard Electric cases involved the construc-
tion industry. However, in New York Mailers' Union, Local
6, International Typographical Union, AFL-CIO (New York
Times Company), 133 NLRB 1052 (1961), decided by the
Board after enactment of Section 8(f), preferential referral
arrangements analogous to the case at bar were acknowl-
edged to be legitimate adjuncts to the printing industry.
Accordingly, I find no merit to the General Counsel's impli-
cit claim that only a statutory amendment could legalize
the type of referral preference in this case.
As indicated, I find herein the existence of legitimate and
necessary business reasons for maintaining the preferential
referral procedures herein. I am particularly impressed by
Striegel's testimony that making up tows is a dangerous job.
He said that a crewmember could suffer disastrous physical
harm if he did not possess the requisite experience to be a
safe employee. Apart from the life-preserving factor, I take
notice of the notorious fact that the so-called "tows" often
sail the waterways in the form of several barges linked to-
gether. Also, they are required to manipulate their way
through dam locks strategically placed on those waterways.
It is eminently clear that inexperienced personnel easily
could cause severe physical damage and financial loss to the
owners and operators of the equipment and to the govern-
ment which operates the dams and locks. The evidence as a
whole convinces me that to be the best type of employee for
the signatory employers an individual should have gained
his experience by working for those employers whose job
requirements demand interchangeable experience.
The referral and seniority rating provisions herein are an
effective way to assure an employee possesses the requisite
experience. Thus, I conclude the requirements to possess an
650
SEAFARERS' INTL. UNION
A. B. or C seniority rating constitute a justifiable delinea-
tion of relative experience. Where such appropriate consid-
erations existed. the Board held that maintenance of a re-
ferral arrangement similar to that considered in this case
did not violate Section 8(hb I )(A) and (2). Local 928, Inter-
national Longshoremen s Association, A FL CIO (Interna-
tional Marine Terminals, Inc.), 137 NLRB 588 (1962). In the
Local 928 case, which was decided after enactment of Sec-
tion 8(f). there is some support for the General Counsel's
contentions before me. Thus. in 137 NLRB at 590. the
Board commented "if it had been demonstrated that the
experience in question necessarily had been obtained under
contracts containing [union-security] . . . clauses, there
would be a basis for finding . . . discriminatory preference
for Union members." Seemingly, when the quoted language
is applied to the case at bar, it should be concluded that the
union-security clause maintained in the district's collective-
bargaining agreement imposes an unlawful taint to the oth-
erwise permissible referral procedures.
I have carefully evaluated the Board's language quoted
immediately above and assessed it against the backdrop of
all the facts before me. I conclude that the language cer-
tainly is suggestive of a violation in the instant case. How-
ever, I also conclude the language does not mandate such a
result. The Board simply observed that the existence of a
union-security clause "would be a basis for finding" a viola-
tion. The Board did not expressly stated that it would posi-
tively find a violation if a union security clause had been
present in the Local 928 case.
However valid or shallow this last distinction may be. I
find cogent evidence from the totality of all the evidence
which impells me to discard what I consider to be a mecha-
nistic approach to the instant problem. Thus, I find the
tbllowing factors override and transcend the possibility of
taking a stultifying, myopic view of this case: The demon-
strated need for experienced employees; the existence of
safety hazards; the need to maintain a ready corps of expe-
rienced and physically fit personnel to maintain and expe-
dite the shipment of goods; the absence of evidence that the
district failed to refer C seniority registrants: the affirmative
evidence that the district readily referred C seniority regis-
trants and accorded them their contractual rights; and the
absence of a practice by which registrants were required to
become members of the District prior to referral. In this
context. I conclude that the adverse impact of the union-
security clause herein, at best, is speculative or minimal.
In sum. I have found no statutory or decisional impera-
tive prohibiting preferential referral procedures in the mari-
time industry. The implementation of the referral provi-
sions herein, as practiced by the parties, has not been
operated with regard to union considerations. The referral
procedures in this case are operated independently of the
union-security clause, and there exist valid criteria and
business justification for the referral procedures. Accord-
ingly. I find there is no merit to the allegations of para-
graphs 7A. B. and C of the complaint.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CoNc.tUSiONS OF LAW
I. The Parties in Interest are employers engaged in com-
merce within the meaning of Section 2(2). (6). and (7) of the
Act.
2. The District is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Section 10(b) of the Act bars consideration of activi-
ties engaged in by the District earlier than December 27,
1977, as unfair labor practices.
4. The allegations that the District restrained, coerced,
or discriminated against Myers by failing or refusing to re-
fer him to work on or after September I. 1977, should be
dismissed because the allegation and evidence presented to
support it precedes the prescribed statutory period of limi-
tation for unfair labor practice findings.
5. I he exclusive hiring hall and referral provisions and
practices contained in the collective-bargaining agreements
between the District and the parties in interest are not vio-
lative of Section 8(bX I)(A) and (2) of the Act.
[Recommended Order for dismissal omitted from publi-
cation.
651