American-West African Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1940

21 N.L.R.B. 691 (N.L.R.B. 1940)

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