National Maritime Union of America

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 615 (N.L.R.B. 1969)

NATIONAL MARITIME UNION OF AMERICA
National , Maritime Union of America , AFL-CIO and
Gastop Firmin-Guyon . Case 2-CB-4616
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On March 3, 1969, Trial Examiner Louis Libbin
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the
Decision and a supporting brief. The Charging Party
filed a motion to amend the complaint and
exceptions to the Decision, and a supporting brief.
The General Counsel filed an opposition to the
motion, Respondent also filed an opposition to the
motion, , and a supporting brief. Thereafter, the
Charging Party filed a reply to Respondent's
opposition, and also an answering brief to
Respondent's exceptions and brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the motion, the
briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
'After the issuance of the Trial Examiner' s Decision, the Charging Party
filed a motion requesting that paragraph 7 of the complaint , which alleges
that Respondent , on or about March 11 , 1968, refused to allow Gaston
Firmin -Guyon to register for employment as an unlicensed seaman, be
amended , in conformity with the proof, to include additional allegations
that Respondent , on or about September 29, 1967 , refused to permit
Firmin -Guyon to register either for reshipping as Chief Deck Steward on
the S S Santa Rosa of Grace Lines , Inc. or Line , employment as an
unlicensed seaman in any other category . The Charging Party further
requests that the Trial Examiner's findings, conclusions, and
Recommended Order be modified in accordance with said amendments, or
with the proof, or both . The Charging Party also filed exceptions to the
Trial Examiner ' s failure to find in accordance with the motion to amend.
The General Counsel filed an opposition on the grounds that the motion
and exceptions pertain to matters outside the complaint , and that the
allegations contained in the motion were previously resolved by the
General Counsel , as set forth in the Trial Examiner ' s Decision, and were
not litigated at the hearing . Respondent filed an opposition on the grounds
that the matter was not litigated at the hearing ; Respondent could not
register Firmin-Guyon for reshipping as Chief Deck Steward , and there is
no evidence that Respondent ' s refusal to so register him coerced
nonsupervisory employees.
Without passing on other grounds , we find that the matter was not
properly litigated at the hearing . Over Respondent ' s objection , testimony
was introduced concerning the September 29, 1967 , refusal to register.
ORDER
615
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, National Maritime Union
of America, AFL-CIO, its officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Order.
MEMBER JENKINS, concurring in part and dissenting
in part:
Contrary to my colleagues, I would grant the
Charging Party's motion to include, as within the
scope of the complaint, consideration of the
additional allegation that the Respondent Union's
refusal on or about September 29, 1967, to permit
Firmin-Guyon to register for reshipping as Chief
Deck Steward on the Santa Rosa was violative of
Section 8(b)(1)(A) of the Act.
The alleged conduct occurred within the Section
10(b) period, and, in my opinion, covered matters
inseparably linked to the allegations of the
complaint. Moreover, I find that all issues
pertaining thereto were fully litigated. Thus, it is
undisputed that on the morning of September 29,
1967, the Union's Chief Dispatcher Lucci refused to
permit Guyon to register for reshipping at the hiring
hall because Guyon had been expelled and was no
longer a Union member, even though the Union was
required to register nonmembers upon the payment
of the required service fee which Guyon at that time
offered to pay. From the evidence adduced at the
hearing it is apparent that the fact that Guyon was
seeking a supervisory Chief Deck Steward job at the
time was not a major consideration. Lucci, for
example, told Guyon, "you cannot reship on the
Santa Rosa or any other ship here . . . From this
day on, you're barred from the union hall, period.
You can't even come in here. You have been
expelled. You're are no longer a member . I
don't want your service fee. I don't want to register
you in any category ... You're barred from the hall
forever...."
The unmistakable conclusion from the record is
that the refusal to permit Guyon to register on
September 29 was for the same reason that he was
denied registration on March 11, 1968: solely
because of his intraunion activities while a member
of the Union and his activities in opposition to the
incumbent administration and officials of the Union.
Clearly, such conduct was reasonably calculated to,
and did restrain and coerce rank-and-file employees
However, the General Counsel only offered it as background information
(specifically denying that what happened on that day was being alleged as
the subject of an unfair labor practice), and the Trial Examiner only
admitted it as such . Respondent was not put on notice that this
background information might later become crucial as the subject of an
amendent to the complaint , and thus Respondent was not given adequate
notice and opportunity to defend against the proposed amendment.
Accordingly , the Charging Party's motion is hereby denied and its
exceptions are hereby overruled.
177 NLRB No. 81
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the exercise of their rights guaranteed in Section
7 of the Act. I would, therefore, find that the
Union' s refusal to register Guyon on September 29,
1967, violated Section 8 (b)(1)(A) of the Act. See
Reinforced Steel Workers Local 426, 164 NLRB
No. 113; A. O. Smith Corp., 132 NLRB 339, 341,
393-394, modified on other grounds 343 F.2d 103,
111-112 (C.A. 7).
Accordingly, I would modify the Trial Examiner's
Recommended Remedy to conform to the above
finding.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner: Upon charges filed on
March 12, 1968, by Gaston Firmin-Guyon , an individual,
herein sometimes called Gaston or Guyon , the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 2 (New York, New York),
issued a complaint , dated June 27, 1968, against National
Maritime Union of America , AFL-CIO, herein sometimes
called the NMU, or the Union , or Respondent. With
respect to the unfair labor practices , the complaint alleges,
in substance , that on or about March 11, 1968,
Respondent failed and refused to register Gaston
Firmin-Guyon, the Charging Party herein, for
employment as an unlicensed seaman because of his
intraunion activities while a member of NMU and
because of his activities in opposition to the officials and
administration of NMU, and thereby violated Section
8(b)(1)(A) and 8 (b)(2) of the Act. In its duly filed answer,
Respondent denies all unfair labor practice allegations.
Pursuant to due notice , a hearing was held before me at
New York, New York, from November 6 to 8, 1968,
inclusive , and on November 12, 1968 . Counsel for the
General Counsel and the Respondent appeared at the
hearing and were given full opportunity to participate
therein . On December 19, 1968, the General Counsel and
Respondent filed briefs which I have fully considered. For
the reasons hereinafter indicated , I find that Respondent
violated Section 8(b)(1)(A) and (2) of the Act.
Upon the entire record ' in the case, and from my
observation of the demeanor of the witnesses while
testifying under oath , I make the following:
FINDINGS OF FACT
1. THE RESPONDENT
The complaint alleges, and the answer admits, ( 1) that
Respondent NMU is a voluntary unincorporated
association which maintains an office and place of
business in New York , New York, where it has at all
times material herein continuously engaged in representing
employees for the purposes of collective bargaining with
various employers in the shipping industry, and (2) that at
all times material herein said Respondent has functioned
as the collective-bargaining representative of unlicensed
personnel employed by various United States steamship
companies on their ocean-going dry cargo, tanker , collier
and passenger vessels operating out of Atlantic and Gulf
ports of the United States.
'Obvious inadvertent errors in the typewritten transcript of the testimony
arc noted and corrected in Appendix A [Omitted from publication].
Upon the above-admitted facts , I find , as Respondent's
answer further admits , that Respondent at all times
material herein has been and is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE EMPLOYERS OPERATIONS ; JURISDICTION
Among the steamship companies for whose unlicensed
personnel Respondent has functioned as
collective-bargaining representative and with which it has
collective-bargaining contracts covering said personnel are
American Export-Isbrandtsen Lines, Inc. (herein
sometimes called American Export), Grace Line, Inc.
(herein sometimes called Grace Lines),
Moore-McCormack Lines, Inc. (herein sometimes called
Moore-McCormack), and United States Lines, Inc.
(herein sometimes called United States Lines), each of
which companies operates a fleet of vessels , registered
under the laws and flying the flag of the United States,
which sail between United States ports and ports located
outside the continental United States. American Export,
Grace Lines, Moore-McCormack, and United States
Lines each receive in excess of $500,000 annually from
their ocean-going transportation services.
Upon the above-admitted facts, I find, as Respondent
further admits in its answer , that each of the above-named
companies is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the Issue
Gaston Firmin-Guyon has been a seaman all his life,
serving in various capacities for over 20 years . He never
performed any other type of work, and was 40 years old
at the time of the instant hearing. He became a full
member of the NMU in August 1946.
The NMU has collective-bargaining agreements with
various shipowners operating deep sea passenger , cargo,
and tanker vessels . Pursuant to these agreements, the
NMU operates lawful hiring halls in various ports. The
NMU does not discriminate in the operation of these
hiring halls between union and nonunion members so long
as the nonunion member pays the prescribed service fee.
However, under the applicable provisions of the
collective-bargaining agreements, the Union is obligated to
refer for employment "competent and dependable
applicants" but "shall not be required to register for
employment any unlicensed seaman whom it does not
consider to be suitable for employment ." The agreements
further provide that " in passing upon the suitability of
applicants for registration ," the Union "shall give
consideration" to various matters, including the possession
of "vicious tendencies."
Respondent Union stipulated that during the period
from September 29, 1967, to September 27, 1968, it
denied Guyon registration for shipping as an unlicensed
seaman . The principal issue in this case is whether
Respondent took this action because of Guyon's
"intra-union activities while a member of the NMU and
his activities in opposition to the officials and
administration of the NMU," as the complaint alleges
and the General Counsel contends, or whether he
possessed "vicious tendencies" and Respondent took this
action only for that reason , as Respondent contends.
NATIONAL MARITIME UNION OF AMERICA
B. Principal Events and Activities Presented by
General Counsel
Unless otherwise indicated , the factual findings
hereinafter set forth are not in dispute . They are based on
credited testimony and documentary evidence wholly
undenied or admitted and on stipulations of the parties.
Evidence concerning events prior to September 12, 1967,
which is more than 6 months before the filing of the
charge in the instant case, was offered and received only
for background purposes.
1. Guyon' s intraunion and antiadministration
activities; NMU's reactions thereto
a. Candidate for port agent of New York in
opposition to administration candidate
The Union has a National office, consisting of the
president , three vice presidents , a secretary-treasurer, and
three National representatives . In addition , there are Port
agents and patrolmen . At the time in question , there were
13 Port agents who had been elected to serve in a
particular port as the officer in charge of that port, 13
Field patrolmen who were elected at large and assigned to
ports by the National council in the National office, and
about 73, patrolmen appointed by the National president
subject to the approval of the National office. Field
patrolmen are in charge of smaller ports while the Port
agents are in charge of the larger ports . All of the
foregoing , including all patrolmen , admittedly are agents
of Respondent Union within the meaning of Sections
2(13) and 8(b) of the Act.
In 1962, all NMU officers, including Port agents and
elected patrolmen, were elected for a term of 4 years. The
next NMU election was scheduled to be conducted
between April 1 and May 31, 1966. Joseph Labaczewski,
the then Acting Port agent for the port of New York, was
the Administration's candidate for New York Port agent
in this election.
Guyon had been employed by the Grace Lines since
1961, virtually the entire time on its S.S . Santa Rosa. In
January 1966 he decided to run for the office of Port
agent for the port of New York in the forthcoming
election.
On January 7, 1966, on board the S.S. Santa Rosa
while she was docked in the port of New York, Guyon
met Labaczewski and asked him for a nomination form if
he had any with him.' In response to Labaczewski ' s query
as to why he wanted nomination forms , Guyon replied
"well, I'm going to run in the election, the 1966 election."
When Labaczewski then asked what Guyon was "going to
run for," Guyon stated that he was going to run for port
agent . Labaczewski thereupon asked in amazement, "do
you mean New York port agent?" Guyon answered "yes,
New York port agent ." Labaczewski then got red in the
face and exclaimed , "who the hell is going to vote for
you! Those black bastards there in Haiti!" Guyon replied,
"I don't know what you mean , who's going to vote for
me. All I can tell you is I'm going to run and I 'm going
to beat you ." Guyon added that he has been "a member
of this union for twenty years and it's my right to run for
office." Labaczewski thereupon called Guyon a "French
bastard" and other obscene names which Guyon was
reluctant to repeat at the instant hearing , and warned that
"we have ways of dealing with you " and that "you're just
inviting trouble ." At ttii`s point , Guyon left that area,
without having obtained any nomination forms from
617
Labaczewski who did not have any with him.'
The S.S. Santa Rosa then left on its regular cruise into
the Caribbean. On its return, it stopped at Port
Everglades, Florida, which is "the first American port we
hit before the ship comes back to the home port of New
York." While at Port Everglades, Guyon was informed by
Philip McGovern, the chief steward of the S.S.- Santa
Rosa , an admitted supervisor within the meaning of the
Act, that he did not understand what was happening
because he had just received a telephone call from
Longchamps, Grace Lines' Port steward, requesting him
to start disciplinary action against Guyon immediately
and to enter Guyon's name in the logbook for using
improper language in passenger quarters on January 7,
1966, when the vessel departed from New York. Guyon
thereupon immediately rushed down to the pier and
telephoned William Perry, the assistant to NMU
President Curran. Guyon stated, "Mr. Perry I don't
understand what is going on here. I have just been
informed that Mr. Labaczewski is instigating a logging
action against me and is colluding with Mr. Longchamps
from Grace Line." Perry replied that he did not "know
what happened, but whatever happened, I am going to
back the port agent on this," referring to Labaczewski.
Perry added that Guyon had "cursed him [Labaczewski]
out or something," and that the latter had told him "the
whole story." Guyon remonstrated that apparently Perry
had only "one side of the story," explained that
Labaczewski "is the one who cursed me out and abused
me that day just because I declared my intention of
running for port agent," and pointed out that "it was my
right as a member of the union for the last twenty years,
dues paying member, to run for office if I chose to."
Perry thereupon exclaimed, "You're a wise guy, aren't
you!" and asked "how would you like somebody running
for your job?" Guyon reiterated that it was his "right to
run for the office." Perry immediately got angry over the
telephone and retorted, "I'll fix you ... don't you worry"
and hung up. Chief Steward McGovern refused to log
Guyon for allegedly using profanity on board the S.S.
Santa Rosa on January 7, 1966.
Neither Perry nor Longchamps were called as witnesses
and Respondent made no claim of their unavailability.
Although Labaczewski testified as a witness for
Respondent, he neither denied the above-described
incident of January 7 nor that he was the one who
instigated through Longchamps the unsuccessful attempt
to have Guyon logged on the false charge of using
profanity against him on January 7. Under all the
circumstances, including Perry's responses to Guyon's
accusations, I find that Labaczewski did in fact instigate
the foregoing unsuccessful attempt to have Guyon logged
on a false charge and that Perry subsequently condoned
and supported Labaczewski 's actions.
'Although Guyon knew that such forms were available in the Union's
office, he asked Labaczewski for them "because it 's the procedure to pick
them up from the patrolman on the ship or the agent."
"'Only those [candidates] challenging the administration [slate] were
required [by the NMU] to nominate themselves by personally securing the
official forms and personally soliciting the required signatures" as
endorsements . This requirement was subsequently held to be unlawful,
discriminatory, and one of the grounds for setting aside , and directing a
new election. See Decision of United States District Court Judge Motley
for the Southern District of New York , April 19 , 1968 , appearing in the
record as G.C. Exh. 12 , affirmed by Decision of Second Circuit Court of
Appeals on July 29 , 1968, appearing in the record as G.C . Exh. 13 . [284 F.
Supp . 47 (S.D .N.Y.), affil . 399 F . 2d 544].
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The S.S. Santa Rosa arrived at the port of New York
on the morning of January 20, 1966 . Guyon immediately
began to perform his debarkation duties on the
promenade deck. About 15 minutes later , NMU Chief
Dispatcher Lucci, Steward's Dispatcher Crossley,
Patrolman Cunningham , and a fourth unidentified person
characterized in the record as a "goon ," accosted Guyon
and requested him to accompany them to the lounge
where they wanted to talk to him in private. When they
arrived in the lounge , Lucci stated , " Now, I am under
orders from the New York Port agent, Joseph
Labaczewski, to pick up your union book, and that's why
we're here ." Guyon explained that he was busy with his
debarkation duties and that they were interrupting his
work, and challenged their "authority to pick up my
union book ." Crossley then interjected , "Look , we want
your union book . If you don ' t give us your union book,
we will go to your room and get it . We will break your
locker open." When Guyon pointed out that his book was
at home and not on the ship , Lucci retorted , "don't give
us that . I'm telling you again that Port agent Labaczewski
sent us down here to pick up the union book . We want it.
If we don ' t get the book you're not going to leave the ship
in one piece ." After a few more minutes of discussion,
Lucci and Crossley left. Guyon then left and immediately
went to the pier where he telephoned the F. B.I. and
explained what had happened. He then telephoned the
New York local police, and went back to the ship to
advise the ship's captain of what had happened. The
captain instructed Mr. Forward, the chief officer of the
S.S. Santa Rosa, to escort Guyon to his room and to see
to it that he was not molested and that his property was
safeguarded. The local police then came aboard, and
escorted Guyon to his room where he changed clothes,
then to Longchamps' office on Grace Lines' pier where he
had a talk with him, and then to Labaczewski's office in
the NMU hall.
Meanwhile , Erwin Treuhaft, the third steward on the
S.S. Santa Rosa who had overheard the demands and
threats made in the above-described incident , observed
Lucci and Crossley a few minutes later pounding on the
door to Gaston ' s room and hollering whether anyone had
a key to let them in . When Treuhaft walked by again a
few minutes later , he saw that the door to Guyon's room
was open and that Lucci and Crossley were going through
Guyon ' s clothes which were hanging up in the locker.
Treuhalf looked and kept going.
When he arrived in Labaczewski's office, Guyon asked
what reason he had to send those three men down to
abuse him . Labaczewski stated that "it's a
misunderstanding ," that "someone told me your dues
weren ' t paid up." Guyon told Labaczewski , "you know
fully well if you want to check on my dues all you have to
do is call up the bookkeeping department and you would
see whether I was paid up or not ." (Guyon 's dues were in
fact paid up and he was in good standing ). Labaczewski
insisted that it was a "misunderstanding" and suggested
that they go to the patrolmen 's room and "shake hands
and forget everything ." Guyon refused , stating that "all I
want now that I'm here is my nomination form . I'm going
to run for office ." Labaczewski asked , "are you serious
about this? Are you really going to run against me?"
When Guyon replied that he was , Labaczewski
announced , "you know you can't beat the slate anyway,
so you would be wasting your time and your money."
Guyon answered , "Well, I'm going to give it a good try.
You believe that." When Guyon again asked for the
nomination forms, Labaczewski asked him to produce his
union book. Upon being told by Guyon that his book was
at home, Labaczewski told him to "come back when you
have your book and Mr. Morris (an NMU patrolman for
the port of New York) will give you the forms." That
afternoon, Guyon got his book from his home, brought it
back and received his nomination forms from Patrolman
Morris.
At the instant hearing, Labaczewski did not deny
having ordered the men to board the ship and to get
Guyon to surrender and to seize his union book. I find
that they were in fact acting on his orders.
The next day, January 21, the S.S. Santa Rosa sailed
on its voyage. That day Guyon wrote and then mailed a
letter to Mr. Rowland, Grace Lines' Manager of
Industrial Relations, with copies to NMU President
Curran and Grace Lines' President McNeal, protesting
the above-described incident of January 20 aboard the
S.S. Santa Rosa and Longchamps' attempt a few days
earlier to get Chief Steward McGovern to log him, as
previously described. On January 26, 1966, a special
meeting of the crew was called aboard the S.S. Santa
Rosa for the main purpose of informing the crew of the
incident of January 20. The crew unanimously voted to
send letters of protest to NMU President Curran and to
Grace Lines' president, requesting that appropriate
measures be taken to prevent a recurrence of such a
situation . Drafts of such letters were written , read aloud,
and approved for mailing at the next port of call. The
crew also went on record in support of Guyon and in
support of any action taken by Curran and the National
office on this case. The letters from the crew to NMU
President Curran and to Grace Lines' President McNeal,
protesting the January 20 incident involving Guyon, are
dated January 26, 1966.
The S.S. Santa Rosa returned from that trip to the
port of New York on February 3. An announcement was
made to the crew that there would be no signing off or
payoff until everybody had reported for a meeting to be
held in the first class dining room . Present at the meeting
besides the crew were practically all NMU officials,
including William Perry , assistant to President Curran,
Shannon Wall, National secretary-treasurer, NMU Vice
President Martin , National Representatives Nesbitt and
Bocker , Port Agent Labaczewski, and all New York
patrolmen. Conspicuously absent were Lucci, Crossley,
and Cunningham. A meeting of this sort had never been
convened previously.
A few minutes before the meeting started, New York
Patrolman Touhey asked Guyon to step in the foyer
where he stated to Guyon, "I want to tell you something
for your own good because we sail together, you're a
friend of mine, and I don't want to see you getting into
any more trouble." Touhey then urged Guyon to "forget
about running for New York Port agent," and to go up to
the microphone at the meeting and drop his charges
against Lucci , Crossley and Cunningham . Touhey
promised that, "if you do that, everything will go back to
normal; we won't bother you any more." Guyon refused,
stating that he was making "no deal " and was "sticking"
to his charges.
A few minutes later , but also before the meeting
started, Perry called Guyon aside, stating that he wanted
to talk to him in the lounge . Perry then stated, "I want
you to go into that meeting and drop charges against
these officials," warning that "if you don't do that I'm
going to go and expose you to this crew" and "I'm going
to spill the whole story on you." Guyon answered, "well,
you tell your story and I'll tell mine ," adding that "we'll
NATIONAL MARITIME UNION OF AMERICA
let the crew decide." Guyon also informed Perry that the
crew was, already aware of what had happened because
they had 'sad a meeting at sea on January 26. Perry then
retorted that he did not "give a damn about your
meeting" !or "about you' re running for New York Port
agent," stated that " I'm going to beat you now and we
will beat you then," and warned that "if you don't come
to reason, you'll be sorry." That ended the conversation.
A few minutes later, the meeting was called to order by
Shannon Wall who stated that the purpose of the meeting
was to bring out in the open the story concerning Guyon's
charges about being abused by three union officials in
connection with an attempt to seize his union book. He
then turned the mike over to Guyon who told the crew
about the January 20 incident involving Lucci, Crossley
and Cunningham, asked for the backing of the crew, and
reminded them that these are the charges with respect to
which they had held that meeting at sea. The crew
applauded. Guyon then pointed out that the three men
who had abused him on January 20 were not present, and
he named them.
William Perry then took the mike and stated that while
Guyon was his friend he had to tell the crew something
about him. Perry announced that Guyon had once been an
NMU patrolman and had to be put in a straight jacket
with the result that he wound up in a mental ward in
Bellevue. He then exclaimed, "is that who you want to
run the Port of New York!" and repeated this rhetorical
question.
At that point, various members of the crew
remonstrated that this had nothing to do with the purpose
for which the meeting was called. Thus, Raoul objected to
hearing "any slander" against Guyon, stated that "we
want to hear about these patrolmen, those officers who
abused him on January 20 because if they can do it to
him they can do it to us next," and pointed out that "this
is the issue here." Another crew member, Sanchez, got up
and said, "you have no right to call up a Kangaroo court
meeting like this to slander somebody in the crew."
Treuhaft, another crew member, got up and complained,
"Are you going to intimidate us here? Because this is not
proper, what you' re doing here . This is wrong." Port
Agent Labaczewski told Treuhaft to "sit down and shut
up," to "keep your mouth shut if you know what's good
for you." Guyon attempted to get the mike "to tell the
crew about the slander that Perry had just made against"
him but was prevented from getting the mike on orders
from Perry. At that point Shannon Wall got back to the
mike, told the crew that "we don't want to hold you up
any longer" and announced that the meeting would be
continued with the ship's committee of the S. S. Santa
Rosa later that day at the union hall . With that
announcement, the meeting was closed.
As the crew filed out to get paid off, Treuhaft was
surrounded by a number of patrolmen and other NMU
officials. Perry approached Treuhaft and stated, "why
don't you mind your business," asked "are you tired of
living? What business have you got sticking your two
cents in this?" He also called Treuhaft all kinds of
obscene names, and threatened that "you 're going to get a
broken back."
After Guyon left the ship, he was called aside in front
of the pier by Patrolman Cunningham, one of the men
who had tried to seize his union book on January 20.
Cunningham stated that Guyon should not blame him for
that incident because he was only following orders, and
added that he wanted to give Guyon "a good word of
advice" which was to "keep away from that meeting this
619
afternoon" and "not to go near the Union hall." The
meeting was continued that afternoon with the ship's
committee and the NMU officials at the NMU hall.
Accepting Cunningham's advice, Guyon did not attend the
meeting. However, he telephoned the hall and addressed
the ship's committee over an amplifying system. Guyon
told the ship's committee that "I want to make my
position clear here," that "I can't attend this meeting,"
that however "I'm not dropping any charges. I want those
charges to be filed through and pursued. I want those
three men punished for their behavior on January 20,"
naming Lucci, Crossley and Cunningham.
NMU Patrolmen Vic Summers and Al Zeidel
submitted an "NMU Patrolman's Report," dated
February 3, 1966, and also signed by the ship's
committee, which contains the following entry with respect
to the incident of January 20:
meeting held aboard ship with crew and National
Officers present to clarify allegations made by Chief
Deck Stwd. [Guyon] in reference to Officials in the Port
of New York. Motioned, and seconded, and carried to
adjourn and have a sub-committee study same. After a
discussion by phone it was agreed that the whole thing
was a misunderstanding and it was dropped. [Emphasis
supplied.]
As noted above, not only was Guyon never a party to
such an agreement, but he affirmatively insisted that his
charges continue to be processed.
The next day, February 4, 1966, Guyon was at the
NMU hall, soliciting endorsement signatures on his
nomination forms for New York Port agent, an NMU
requirement for nomination as a candidate in opposition
to the administration slate.4 He arrived between 9:30 and
10 a.m. and went through the various departments, from
the deck and engine department side of the union hall to
the steward's department side. About 12:30 p.m. New
York Patrolman Guzman Ryan walked into the hall with
three men, all going towards the steward's department
side of the union hall where Guyon was at that time.
Ryan "fingered" Guyon to the other three men, one of
whom came up and punched Guyon in the face with his
fist. Guyon had with him his valise with all his nomination
forms and important papers inside, and his first concern
was to grab his valise and run out. However, he was
grabbed by his overcoat, which was flipped over his face,
and began to feel blows on his back and neck. He was still
trying to run and by that time had reached the hallway,
which was between the deck and engine room hiring hall
and the steward's department hiring hall, when he was
knocked down and kicked and punched for several
minutes. Blood was coming from his ears, mouth, and
scalp. A large crowd had gathered and some of them were
hollering for help. Chief Master at Arms Winbusch, "a
big guy about six foot three," prevented anyone from
coming to Guyon's aid by pushing the crowd back with
both his hands in a breast stroke-like motion. When
Seaman Ralph Ibrahim tried to go to Guyon's aid, he was
struck in the face by Winbusch as he was moving his
hands to keep the crowd back. Someone in the crowd
finally suggested, "let's call the cops." The next thing
Guyon was aware of was the three men running out of the
hall and the arrival of two policemen who escorted him to
the patrolmen's room where the National officers also
assembled. Guyon accused Patrolman Ryan of "fingering"
him to the three men. Among the National officers to
whom he made the accusation at that time were William
'See In . 3, supra
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Perry, assistant to NMU President Curran, Shannon
Wall, secretary-treasurer , and National Representative
Blocker . The policemen escorted Guyon to the emergency
room of St. Vincent' s Hospital for first aid treatment. He
did not have much time left, as his ship was sailing that
night . However , he spent a few hours in the office of the
United States attorney for the criminal division , making
statements . As of the date of the instant hearing, the
matter was still under grand jury investigation.
The next day Winbusch met Ibrahim in the deck
department of the union hall and apologized for having
struck him the preceding day, explaining that it was
Ibrahim ' s fault for having tried to come to Guyon's
assistance because he (Winbusch ) was trying to prevent
that . Winbusch also stated at that time "that Guyon was
running for agent of the Port of New York and if they
didn ' t stop him, he may very well win, " explaining that he
was only doing his job which he would lose if Guyon won.
There is no denial of the foregoing incident. In view of
the role played by Patrolman Ryan , an admitted agent of
the Union, I find that the Union is responsible for the
assault upon Guyon and for the conduct of Winbusch in
connection therewith. Moreover, I find that Chief Master
at Arms Winbusch was also an agent of the Union within
the meaning of the Act and that the Union is also liable
for his statements to Ibrahim the following day.
Guyon protested the assault to President Curran. He
sent him a radiogram from the S.S. Santa Rosa on
February 6 as follows:
SEVERELY BEATEN BY FOLR GOONS IN UNION HALL WHILE
OBTAINING ENDORSEMENT SIGNATURE FINGERED BY
PATROLMAN RYAN REQUEST MEETING WITH YOU BEFORE
TAKING ACTION.
He also sent Curran a letter from the Caribbean, dated
February 10, 1966, protesting the unusual meeting held
aboard ship by union officials on February 3 and the
assault the following day at the union hall, and again
requesting a meeting . Guyon received no reply to his
radiogram and letter and was never granted the requested
meeting.
b. Other activities
As previously noted, the NMU election was conducted
between April 1 and May 31, 1966, by the Honest Ballot
Association . There were 46 candidates on the ballot for 34
positions . Guyon was defeated as the candidate for New
York Port agent by Joseph Labaczewski,' as was every
candidate who ran in opposition to the administration
slate . By letter dated June 14, 1966 , and addressed to
National secretary-treasurer Wall, Guyon appealed from
the results of the election in his case on the basis of all the
events which had occurred to him since his announce ment
to run for New York Port agent, as previously described.
He pointed out that because of "all these facts, I became
scared and fearful to get off the ship to conduct a proper
campaign on my behalf' and that "had I not been
harassed , threatened , smeared, and beaten , I would have
conducted a proper campaign and probably would have
tripled the above-mentioned figure and thereby won the
election ." His appeal was denied.
The 1966 election was successfully challenged by
Secretary of Labor Wirtz under Title IV of the Labor
Management Reporting and Disclosure Act of 1959 (29
U.S.C. 481). The Secretary sought to have the entire
election set aside and a new one conducted . In February
1967, Guyon was ship 's chairman on the S . S. Santa Rosa.
'Labaczewski received 11 ,406 votes while Guyon received 4 ,569 votes
At a meeting of the crew aboard ship, Guyon moved that
a telegram be sent to the Secretary of Labor to back him
in any action he might take against the NMU. The
motion was unanimously passed and the following
Radiogram was sent to the Secretary of Labor on
February 7, 1967:6
WE THE RANK AND FILE CREW MEMBERS OF THE S.S.
SANTA ROSA AT A UNION MEETING HELD FEBRUARY
SIXTH VOTED UNANIMOUSLY TO SUPPORT YOUR MOVE TO
HOLD NEW ELECTIONS FOR THE NATIONAL MARITIME
UNION.
SHIPS COMMITTEE
On April 6, 1967, Guyon, as ship's chairman, and the
ship' s committee were processing several grievances at the
NMU hall in New York City. Also present in the meeting
room were Mel Barisic, NMU vice president in charge of
contract enforcement, his assistant, T. J. Walker, and
Charles Snow, the head of security. During the course of
the meeting, NMU President Curran and his assistant,
Perry, walked into the meeting room . Curran had never
previously been seen at a grievance meeting . Curran said
in a loud voice that he wanted the taperecorder set up
because he wanted everything said by this
"troublemaker," this "punk" here, Gaston Guyon, put on
tape. Snow then got busy setting up the tape recording
machine and the rest of the meeting was taped.
Guyon testified against the NMU in the Federal
District Court in September 1967 in the action brought by
Secretary of Labor Wirtz. The action was successful and
the elections were set aside and new ones directed in a
decision issued on April 19, 1968, by District Court Judge
Motley and affirmed by the Second Circuit Court of
Appeals on July 29, 1968. Wirtz v. National Maritime
Union, 284 F.Supp. 47 (S.D.N.Y.), affd. 399 F.2d 544;
General Counsel's Exhibits 12 and 13. Guyon is
mentioned by name in the decisions of both the District
Court and Circuit Court of Appeals.
Guyon is and has been the co-chairman of a dissident
and anti-administration group known as the "Committee
for NMU Democracy." In this capacity he has since the
latter part of 1966 authored, researched, edited, collated,
signed and disseminated - among other ways by personal
distribution in front of the NMU hall and before and on
various ships, in full view of many NMU officials -
numerous pieces of insurgent , dissident and anti-NMU
administration literature. This "Committee for NMU
Democracy" was first formed in the latter part of 1966
and Guyon immediately became active therein and in
distributing its literature.
Thus, in March 1967 he distributed a bulletin (G.C.
Exh. 33g) which on its first page in a large prominently
displayed box, entitled in large bold type, "CURRAN'S
ARM-TWISTING FAILS!" contains a copy of the
minutes of the February meeting aboard the S.S. Santa
Rosa. The minutes recite that Guyon made a motion to
send a telegram to the Secretary of Labor in support of
his action against the NMU for a new election and that
the crew unanimously approved the motion . It also
contains a copy of the radiogram which the crew sent to
the Secretary, as previously set forth. In the summer of
1967, Guyon wrote and began to distribute a leaflet (G.C.
Exh. 33y) signed by "Gaston Guyon, A VOICE FOR
THE MEMBERSHIP" and entitled, "WAKE UP,
BROTHERS! CURRAN GUILTY OF
`The minutes of this meeting and a copy of the Radiogram appeared on
the first page of a bulletin which Guyon openly distributed the following
month . infra.
NATIONAL MARITIME UNION OF AMERICA 621
DISCRIMINATION." It contains an attack against
Curran, hid administration, and the Union's officials, and
concludes With the following paragraph:
Any member who knows of abuses of fair union
practices, including backdoor shipping and fighting fund
shakedown, can contact a member of the Committee
for NMU Democracy, and we will take any action we
can to correct these abuses. It's too bad you can't go to
your officials for help but who can blame you. You can
change the things in our next election by voting for
NMU democracy. It is time for a change. This might
be your last chance to put the NMU back in the hands
of the rank-and-file.
Also, beginning with January 1968 and for several months
thereafter, Guyon distributed a leaflet, signed by
"GASTON GUYON, CO-CHAIRMAN COMMITTEE
FOR NMU DEMOCRACY," and addressed
"ATTENTION. . .ALL RANK-AND-FILE MEMBERS
.. ON ALL SHIPS!" The leaflet contains an attack on
the large salaries received by the Union's officials,
representatives, agents and patrolmen for the fiscal year
1967, with an attachment listing the salaries and
reimbursed expenses of each one by name. The leaflet
concludes with the following paragraph:
But what every rank-and-filer will notice most of all
is that hard-working and under-paid seamen are getting
soaked to pay swollen salaries and "expenses" for a
parasitic bunch of bureaucrats. And worse, our
pensions have been placed in jeopardy by the fancy
shenanigans that the fancy bureaucrats have been
pulling in order to pay themselves these super-fancy
salaries and even fancier "officers' pensions."
Brothers, it's time for a change.
2. Guyon' s expulsion from NMU membership
At a Ship ' s committee meeting aboard the S . S. Santa
Rosa on May 17, 1967, Muriel Brady, a replacement
waitress, presented written charges, dated May 15, 1967,
against Guyon , alleging violations of the NMU
constitution by Guyon 's alleged conduct aboard ship. The
charges did not include any allegation about attacking a
member aboard ship or in the union hall with a dangerous
weapon, or in any manner physically attacking her or
causing her bodily injury. This document was not accepted
by the Ship's committee. Thereafter, on June 12, 1967,
Brady presented the identical charges against Guyon to a
joint meeting of the Ship's committee, of which Guyon
was chairman.7 The committee accepted the charges this
time because of Brady' s persistence . Meanwhile, on June
6, 1967, before the resubmission and acceptance of
Brady's charges, a "Notice of Trial" over Port Agent
Labaczewski' s name was sent to Guyon at his home. This
"Notice of Trial" had attached to it a "Statement of
Charges" which are unsigned and otherwise do not
indicate the name of the accuser , containing without more
a listing of four articles of the NMU constitution
allegedly violated by Guyon and notifying Guyon to
report to the trial committee in the Port of New York on
August 29, 1967. Among the four listed articles which
Guyon was alleged to have violated is "Art. 21, Section 8.
Attacking a member aboard ship or in the Union Hall
with a dangerous weapon ." These identical documents
were again dispatched to Guyon over Labaczewski's name
on June 16, 1967. In response to a request by Guyon's
attorney at least for such information as the name of the
accuser , the incidents complained of and when they
allegedly occurred, Labaczewski sent Guyon a letter,
dated August 22, 1967, which states that he is "enclosing
herewith a copy of the charges filed against you by Muriel
Brady. These are the same charges which you refused to
accept when Miss Brady attempted to serve you aboard
the vessel" (emphasis supplied), referring to the incident
of May 17 mentioned above. However, the enclosed
charges differ from Brady's charges which had been
refused aboard ship on May 17 and had been resubmitted
and accepted on June 12, 1967, primarily in that they
contain an item, not included in the other charges,
alleging a violation of article 21, section 2(8) of the NMU
constitution as follows:
Attacking a member aboard ship or in the Union Hall
with a dangerous weapon. On numerous occasions, the
Ship's Chairman, Gaston F. Guyon, has passed me in
the Galley and come into the Dining Room, grabbing
me by the hand and swinging me around, grabbing me
by the neck, pushing me across the room and causing
me to stumble . This type of action caused me bodily
injury and jeopardized my job aboard ship.
At 10:15 a.m. on August 29, 1967, a hearing on the
charges was held at the NMU hall before a rank-and-file
trial committee, with Port Agent Labaczewski present
during virtually the entire time as the Union's
representative "for the sole purpose of insuring that the
trial procedure conforms to the provisions of this
constitution and that the rules of fair play are enforced in
all respects" in accordance with article 20, section 7, of
the NMU constitution.
At the opening of the hearing, the chairman of the trial
committee read the charges listed in the document
attached to the "Notice of Trial" sent to Guyon over
Labaczewski's name, which contained the accusation of
violating "Article 21, Section 8, attacked a member
aboard ship or in a union hall with a dangerous weapon."
Guyon pleaded not guilty to all the charges which were
read. The committee then called upon Miss Brady who
read the charges which she had originally submitted
aboard ship on May 17 and which were resubmitted and
accepted by the ship's committee on June 12, 1967. As
previously noted, these charges which she read contained
no accusation of attacking her aboard ship or in a union
hall "with a dangerous weapon" or in any manner
physically attacking her or causing her bodily injury. In
response to Guyon's question as to why he had received a
different set of charges from Labaczewski, also dated May
15, 1967, Brady admitted that she had submitted a
different set of charges directly to Labaczewski before
resubmitting the original charges to the joint meeting of
the Ship's committee on June 12. After Brady had made a
statement in support of the charges which she had read,
Guyon then cross-examined her with respect to the second
set of charges which he had received from Labaczewski.
Guyon asked her if he had ever attacked her "with a
dangerous weapon or laid his hands on her." She
answered , "You have laid your hand on me by pointing
your fingers in my eye and accusing me of leaving the
deck five minutes early." Guyon then went to the next
listed charge and asked Brady if he had ever violated the
shipping rules or the constitution or policies of the Union.
She replied, "As far as I am concerned, yes. You
campaigned against the administration very poorly, you
have run down many members of the administration ..."
Although Brady had one witness who made a
statement, nothing in her statement pertained to any
'A point meeting is comprised of the whole crew of the three departments
of the ship
I
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attack by Guyon or Brady with a "dangerous weapon" or
laying any hand on her in any manner . Guyon then moved
that the committee dismiss these charges "as they are
false and not in accordance with our NMU constitution,"
because of the manner in which the two separate sets of
charges were prepared and served . He then made a
statement with respect to the substance of each charge.
With respect to the allegation of a violation of article 21,
section 2(8), he pointed out that "the offense described [by
Miss Brady] does not allege or suggest the use of a
dangerous weapon and is hence not punishable
under Article 21, Section 8," and also "there,
is no specification as to time, place, date, actions,,
et cetera." Additional evidence presented by,
Guyon related to the other charges . The hearing ended at
12:40 p.m.
The trial committee went into executive session and
then informed Guyon orally that he had been found guilty,
with the penalty of expulsion. On September 21, 1967,
National secretary-treasurer Wall mailed a copy of the
trial committee ' s report to Guyon . This report states that
Guyon was found guilty on all four charges, with the
penalty of expulsion on two of them . One was for
violating article 21 , section 8 , which states "attacking a
member aboard ship or in the union hall with dangerous
weapon" and carries a mandatory penalty of expulsion,
and the other was for violating article 21 , section 22,
relating to violation of "National shipping rules,
Constitution or policies of the Union."
Under the NMU constitution , a recommendation of
expulsion by a trial committee must be submitted to the
membership at the next monthly meeting in port. Such a
meeting was held at the union hall in New York on
September 25, 1967. Present at this meeting were over 200
rank-and-file members, all New York patrolmen, New
York Port Agent Labaczewski, and a number of National
officers, including , Wall, Perry, all three vice presidents
and all three National representatives. Labaczewski called
the meeting to order and was elected chairman. Patrolman
Rich read the charges which Guyon had received in the
mail from Labaczewski (and not the ones which Brady
had presented to the ship' s committee) and the trial
committee' s Report. Guyon then addressed the meeting,
read the charges which Brady had filed with the ship's
committee , stated that he was expelled on the latter
charges, and urged the membership not to be fooled by
what they had heard from Patrolman Rich. Then
Labaczewski took the microphone and stated, "well, now
you have heard brother Gaston ' s [Guyon ' s] comments ...
I guess you know brother Gaston is the one who just
testified against the Union in court a few days ago` . .
.now we are going to vote on his expulsion." One
rank-and-file member, Smith , got up and stated that "we
want to hear from the accuser too." Brady thereupon took
the microphone and stated that Guyon had "abused" her,
that he was "a nasty man ," that he was "a very-militant,
anti-Curran individual," and that people like him "should
be kicked out of the Union ." Member Smith then asked,
"Miss Brady, what dangerous weapon did Gaston use
against you?" She evaded the question and replied , "he's a
nasty man." Smith persisted , "I'm not asking you to
describe Gaston ' s character. We want to know what
dangerous weapon he did use against you." Brady then
answered , "he is the dangerous weapon. Gaston is the
dangerous weapon ." At that point, Labaczewski took the
microphone again and said, "Now you heard . This man
was abusing this woman there . Let me remind you again
he testified against the Union in Federal Court. Is this
what you want? Now we are going to vote." He then
asked the membership to vote on Guyon's expulsion. A
separate hand vote for and against expulsion was then
taken on each of the two charges for which expulsion was
recommended, and in each instance Labaczewski
announced that the count was in favor of the "ayes."
Guyon's detailed written appeal from this action was
denied without reasons by the NMU appeals committee,
and NMU's National council affirmed the expulsion on
November 17, 1967. Guyon also brought a civil action
against the NMU under Title I of the Labor-Management
Reporting and Disclosure Act of 1959 (29 U.S.C. 411) on
the ground that he had been expelled from membership
because of his activities with the disputed 1966 election
and the trial with respect thereto in the Federal District
Court before Judge Motley. This action was still pending
at the time of the instant hearing.
3. Refusal to permit Guyon to register
Guyon had left the S.S. Santa Rosa on June 14, 1967,
for medical reasons and was operated on at the Marine
Hospital on July 7. He remained unfit for duty until
September 26, 1967, when the doctor at the Marine
Hospital marked him fit for duty.
On the morning of September 29, 1967, Guyon
telephoned Longchamps , Grace Lines' port steward, and
requested the time of reporting for duty. As a result of
this conversation , he proceeded that morning to the Union
hall to register for reshipping on the S.S. Santa Rosa. At
the entrance to the hall he was stopped by Tulio Figueroa,
the Master at Arms then on duty. Guyon stated that he
wanted "to get inside to reship on the S . S. Santa Rosa."
Figueroa replied that Guyon could not come in and that
he would have to wait there while he (Figueroa) got the
ship dispatcher . Shortly thereafter Chief Dispatcher Lucci
came outside and asked Guyon to follow him. They
proceeded to Lucci's office where Lucci first asked Guyon
to surrender his union book "because you have been
expelled at the meeting the other day." Guyon thereupon
surrendered his union book and then asked Lucci "to give
me a reship for the Santa Rosa." Lucci replied, "you
cannot reship on the Santa Rosa or any other ship here . .
. . From this day on, you're barred from the union hall,
period. You can't even come in here . You have been
expelled. You're no longer a member." Guyon then asked,
"Can I do like other people do, like Mr. Morrissey, for
instance, register as a non-member and pay my service
fee? Lucci replied, "I don't want your service fee. I
don't want to register you in any category . . . . You're
barred from the hall forever . . . . The only thing I'm
going to give you are three forms .... One is to be filed
with the secretary-treasurer of the Union, Mr. Wall, the
other one with the Merchant Marine Institute ." 10 Lucci
handed Guyon a triplicate form, stating that "this is an
appeal from my refusal to register you for employment
here in this union hall." I find that Chief Dispatcher Lucci
'This has reference to Guyon 's testimony in the Federal District Court in
the proceeding brought by Secretary of Labor Wirtz against the NMU to
have the 1966 elections set aside and new ones directed. See fn. 3 and
section entitled "Other activities."
'Union membership is not a condition of employment under the
collective-bargaining agreements and not a condition of using the services
of the hiring hall. Nonmembers in Guyon 's status had the same right, and
were permitted , to register upon the payment of the prescribed service fee
on the same basis as members and there was no preferential treatment in
shipping referral based on union membership.
"The American Merchant Marine Institute, Inc., is an association of
NATIONAL MARITIME UNION OF AMERICA
is an agent of the Union within the meaning of the Act
and that Respondent is therefore liable for his statements
and conduct.
Guyon took the forms, entitled "Appeal from Refusal
to Register or Refer for Employment," filled them out
and filed them, as requested. He stated in the form that
he was refused registration on September 29, 1967, for the
seamen's rating of chief deck steward [the position he last
held on the S.S. Santa Rosa] because "I was no longer a
member of the National Maritime Union, as I had been
expelled a few days ago. Also I was told to surrender my
Union book." As requested in the form, he sent one copy
to the Permanent Appeals Board, NMU Employment
Pool c/o American Merchant Marine Institute, Inc., and
one copy to Secretary-Treasurer Wall, and retained the
third copy.
On September 29, 1967, Guyon also filed unfair labor
practice charges against the NMU and Grace Lines, Inc.,
alleging a violation of the Act in refusing to register and
assign him back to the S.S. Santa Rosa. By letter dated
November 30, 1967, the Acting Regional Director
dismissed the charges, which dismissal was sustained on
appeal, on the basis that the evidence was insufficient to
establish that Guyon "had applied for referral to a
non-supervisory position when he visited the Union hall on
September 29, 1967."
The collective-bargaining agreement provides for the
establishment of a Permanent Appeals Board, consisting
of 3 members appointed by the Union and 3 members
appointed by the American Merchant Marine Institute,
Inc., the association of shipowners with whom NMU has
its contracts. It further provides that any unlicensed
seaman who feels that the Union has unreasonably refused
to register or refer him for employment "may file a
written complaint with such Appeals Board."
By letter dated October 4, 1967, and signed by Kenneth
Benson, secretary of the Permanent Appeals Board,
Guyon was advised that his appeal had been received and
that "we are investigating the matter and you will hear
from us shortly." By letter dated December 4, 1967,
Benson informed Guyon that the Permanent Appeals
Board had met to consider his appeal and that "the
National Maritime Union advised that the basis of the
refusal to register you for shipping was information
indicating that you were a person with vicious tendencies
under Article I, Section 6(c) of the Collective Bargaining
Agreement." The letter concluded with the suggestion that
"you submit whatever information you may have
pertaining to this charge." Immediately upon receipt of
this letter, Guyon went to see Benson, informed him about
the details concerning the Muriel Brady charges , gave him
a transcript of the hearing on the charges before the trial
committee , and answered all questions asked of him.
Benson advised Guyon to "keep in touch with me" and
promised to keep Guyon "posted ." Guyon kept
telephoning Benson weekly . He was informed that the
Union was busy with the AFL-CIO convention and, on
one occasion, that NMU's Attorney Sovel was not
available. Finally, Benson advised that Guyon should
write Benson a letter about this matter. Accordingly, on
February 14, 1958, Guyon wrote Benson a letter, denying
the "unspecified charge" that he was a "person with
vicious tendencies" and pointing out that Muriel Brady's
charges were not substantiated at the hearing before the
trial committee.
shipowners with whom Respondent Union, NMU, has its
collective-bargaining agreements.
623
Meanwhile, on one of Guyon's telephone conversations
with Benson , the latter indicated that he thought the
"union was lifting the pressure." Benson further stated
that "at this time I think you will be clear[ed]," and
suggested that Guyon retake another attempt to register.
Guyon therefore went back to the Union hall on March
11, 1968, to register for any kind of a job, to pay his
service fee as a nonmember, and to ship out in any
capacity. He was not permitted to register for work in any
category, was barred from entering the Union hall, and
was told that "nothing [had] changed" from "last year
when you got expelled." The next day Guyon filed unfair
labor practice charges with the Board, which charges are
the basis for the instant proceeding.
Meanwhile, Guyon received from Benson a letter, dated
March 7, 1968, acknowledging receipt of Guyon's letter
referring to the Muriel Brady charges, and adding that
"the Permanent Appeals Board has been advised that in
1960 you were involved in an incident on a ship owned by
the United States Lines in which a man's skull was
fractured and which led to your being indicted" and that
.,on at least three different occasions you became involved
in disputes with Miss Christie, Personnel Director of
seagoing female employees for Grace Lines, Inc., in the
dining room of the S.S. Santa Rosa in which Miss
Christie was threatened and foul language was used." The
letter closed with a suggestion that Guyon submit
whatever information he had pertaining to these matters.
Guyon replied by letter, dated March 12, 1968, advising
that he knew of no disputes with Miss Christie involving
threats or foul language and that his limited association
with her had been amicable. With respect to the 1960
incident involving Edward Mitchell, he directed attention
to his complete exoneration in this incident as stated in a
nolle prosequi which had been filed as to him on this
indictment, gave the name of the case and the citation,
pointed out that the nolle prosequi states that Mitchell,
the complainant, was the instigator and aggressor, and
advised that in an opinion handed down by Arbitrator
Kheel on October 22, 1965, Guyon's character was
established as "a peaceable, sober and industrious
person." The letter concluded with the statement that "it
is obvious from the last minute manner in which these
matters are raised that they have nothing to do with the
real dispute between NMU and myself." By letter dated
April 16, 1968, Benson advised Guyon that "The Appeals
Board has carefully considered your appeal, and in the
light of all the facts and circumstances, denies your
appeal."
The parties stipulated that Guyon was refused
registration and referral for shipping until September 27,
1968. In order to facilitate the holding of new NMU
elections, an agreement was entered into between
Secretary of Labor Wirtz and the NMU to reinstate
Guyon to membership and to allow him to register and to
ship pending the disposition of the instant proceeding
before the Board and the other actions instituted in behalf
of Guyon. The agreement was "without prejudice to the
Union's position" in the pending litigation. The stipulation
affecting this agreement was signed as an order by Judge
Motley on August 19, 1968.
C. Respondent 's Defenses
1. The defense that Guyon possessed "vicious
tendencies"
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for Respondent contends that the Union
refused to permit Guyon to register for employment on
September 29, 1967, and on March 11, 1968, because he
was a person with "vicious tendencies" under article I,
section 6(c), of the collective-bargaining agreement. In
support of this defense, Respondent adduced evidence with
respect to certain conduct of Guyon while he was
employed by the United States Lines, the American
Export Lines and Grace Lines.
a. The United States Lines
With respect to the United States Lines, Respondent
relies on two incidents; one occurred in France over a
decade ago, and the other was in 1960.
As to the first incident, the undisputed credited
evidence shows that on June 15, 1958, Guyon was
involved in a fight at La Havre, France, with a fellow
seaman who was the instigator and aggressor, that during
the course of the struggle each bit the other's thumb, that
Guyon was fired because of this fight, and that he was
reinstated through the intercession and efforts of NMU
Vice President Barisic.
As to the second incident, the undisputed credited
evidence shows that on April 21, 1960, Guyon was
involved in a fight with a fellow crewmember, Mitchell;
that Mitchell was holding Guyon's arm from behind; that,
when Guyon swung his body and twisted to get free,
Mitchell was thrown against the bulkhead and injured;
that Mitchell was taken to the hospital with a possible
fractured skull; and that Guyon and Mitchell were fired as
a result of this incident. The undisputed documentary
evidence further shows that an indictment issued against
Guyon, charging him with assault, was nolle prossed on
December 24, 1963, because further investigation disclosed
that "more than half of the available witnesses would
testify that complainant (Mitchell), and not Guyon,
started the incident" and because Mitchell was also "the
instigator of a subsequent altercation" and "is a
troublemaker with belligerent and aggressive
characteristics." The Union again later interceded on
Guyon's behalf to have him reinstated by United States
Lines and successfully represented Guyon's grievance in
an arbitration proceeding before Theodore Kheel, the
permanent arbitrator under the collective-bargaining
agreement . Guyon however never attempted to reship on
the United States Lines.
b. The American Export Lines
Counsel for Respondent states in his brief that "after
losing his job with United States Lines" in 1960, Guyon
returned to the American Export Lines and "within a
period of nine months he was fired on three occasions by
American Export Lines, the last time for being off his
station and in a female passenger room." Respondent's
exhibits show that this last time was in May 1961 when
Guyon had the rating of "Bellboy." Counsel for
Respondent makes no mention of the nature of the prior
two occasions.
With respect to the earlier two occasions, Respondent's
exhibits shows that one occurred in November 1960, "for
engaging in gambling [a crap game ]on the vessel in direct
violation of the Master's orders and of posted notices
prohibiting gambling" and that he was reinstated the same
day through the intercession of the Union, and that the
other occurred on December 18, 1960, for being "absent
from the vessel upon her departure from Genoa." No
wonder Respondent's counsel did not even deign to
mention in his brief the nature of these two dismissal
offenses.
c. The Grace Lines
After leaving American Export Lines, Guyon started
sailing on ships of the Grace Lines. Counsel for
Respondent relies on the following incidents which
occurred while Guyon was employed by these lines.
(1) Brief mental breakdown in 1963
In the summer of 1963 Guyon was offered a job by the
Union as an appointed patrolman. When he reported to
the Union hall for this job about 2 days later, he suffered
a mental breakdown, with hallucinations and paranoic
symptoms, and spent a week in Bellevue Hospital in New
York City. Upon his discharge from the hospital, he
resumed his employment with Grace Lines, but did not
return to seek his job as a patrolman. Never before nor
since that time had he ever experienced such symptoms or
been in such a condition. There was no showing that
during that period he assaulted or injured or threatened to
injure anyone or that the Union or Grace Lines made any
adverse comments about this incident. On the contrary,
the Union thereafter continued to register him for
employment and he continued to be employed.
Guyon contended that his condition resulted from
having been slipped a "mickey" at the Union hall in a cup
of coffee by a named Union patrolman after having
refused to comply with the latter's demand that he pay
$1,000 for the appointment he had just received as a
patrolman," and from a blow on the head which he
received from behind about the same time. It is not
disputed that he reported this incident to the Justice
Department, that he testified about it before a Federal
grand jury, and that the matter was still under
investigation by the grand jury at the time of the instant
hearing . All the medical records from Bellevue Hospital
were presented by United States Lines to, and considered
by, Kheel in the arbitration hearing in which the Union
represented Guyon in his grievance against United States
Lines and which resulted in Kheel's opinion on October
22, 1965, that Guyon "be given an opportunity to apply
for and obtain employment on ships of United States
Lines ...."
(2) The Gonzalez incident
The findings concerning the Gonzalez incident are
based on the credited and undenied testimony of Guyon,
the only witness who testified on this matter, and on the
log entries which were subpoenaed from the Grace Lines.
The following is Guyon's testimony: In September 1964
Guyon was employed as second steward aboard the S.S.
Santa Rosa . At that time Antonio Gonzalez was working
on the Santa Rosa as the officer's utility man, a position
which required him to stand in the main galley and get the
food from the cook to the dumbwaiter. On the occasion in
question that September, Guyon was directed by Chief
Steward McGovern, the head of the steward's department,
to get Gonzalez out of the galley at once because he was
intoxicated and was creating a disturbance which was
"The patrolman in question denied having demanded the payment of
$1,000 for Guyon 's appointment . I deem it unnecessary to resolve this
conflict.
NATIONAL MARITIME UNION OF AMERICA 625
affecting the passenger service . Guyon thereupon went to
Gonzalez in the galley . Gonzalez was "very belligerent,"
used "alf kinds of foul language" and threatened to "get
even" with Guyon. The latter reminded Gonzalez that he
was "off duty" and "finished in the galley," pointed out
that Gonzalez therefore had "no business" to be there,
and told , him to "get up there where you belong or go
below." When Gonzalez refused to move, Guyon called
Assistant Steward Renrick and asked Renrick to call the
chief officer. Upon hearing Guyon's request, Gonzalez
slowly started to leave. To make sure that Gonzalez would
leave the premises , Guyon followed him, escorting him out
of the galley. As they proceeded up the spiral staircase to
the sundeck, with Guyon directly behind Gonzalez who
had his bands in his pocket , Gonzalez suddently turned
around and swung at Guyon with a knife. Guyon
thereupon grabbed Gonzalez ' hands and started to squeeze
them. Gonzalez dropped the knife which had cut him, and
fell down the staircase . The chief officer then entered and
Gonzalez was escorted down the elevator to the crew
deck. At the chief officer's request, Gonzalez was
handcuffed to the bunk in the ship's hospital.
Log entries and official reports were made of the entire
incident. The report of Assistant Steward Renrick states
that he was present that evening and "witnessed the
aggressive attitude of Gonzalez " toward Guyon, that
"Gonzalez was loud and profane and his conduct was
causing unnecessary agitation and our passenger service
was being distrubed," that "Guyon ordered him
(Gonzalez) to his quarters and escorted him out of the
galley towards the staircase outside the galley, " and that
Gonzalez drew a knife from his pocket and the second
steward (Guyon) caught hold of his arm and took him
away. The log entries entered by the ship' s master, the
chief officer and the purser state , among other things, that
Gonzalez "was abusing to his working superior, Second
Steward Gaston Guyon, by using strong language and that
"Gonzalez was examined by the ship ' s surgeon and the
diagnosis was probable marijuana intoxication , multiple
abrasions of the neck and contusions of the right arm."
(3) Incidents involving Miss Christie
Lillian Christie is the supervisor for female personnel
for Grag Lines . She testified at the instant hearing to
three encounters with Guyon in which he allegedly used
foul language . As to one of these encounters which
occurred in the dining room sometime in 1963 , according
to her further testimony , Guyon "took a swing" at her
and she "ducked " and ran into the galley. On
cross-examination by the General Counsel she testified
that the 1963 incident was the only time when Guyon
attempted to strike her and that on that occasion he
"swung his fist" but did not in fact hit her . However, she
admitted that in an affidavit which she signed and gave to
Grace Lines' attorney on December 6, 1967, she stated
with respect to this incident which occurred in January
1963, that Guyon " made a threatening gesture by raising
a fist in a manner which made me believe that he was
about to strike me." Despite this admission , she still
insisted in her testimony at the instant hearing that Guyon
"swung" at her . She also admitted that she had reported
this incident to her "boss ," Mr. Longchamps , and that no
action was taken with respect to this incident . She further
admitted that she considered her job to be a rough life
because she dealt with seagoing people and that she was
accustomed to being frequently cursed and abused by
them.
Guyon denied ever having threatened Miss Christie or
having chased her out of the dining room . He admitted
having had several conversations with Miss Christie in
connection with grievances which he was handling as
ship's chairman. With respect to the 1963 incident, he
testified that several female employees had complained to
him about the switching of Article numbers on the ship, a
violation of the shipping rules , and he was presenting their
grievance and complaints to Miss Christie about these
practices in a "heated conversation" in which they both
spoke loudly in the presence of other waitresses in the
dining room . He denied that during the course of this
argument, or on any other occasion, he swung at her, or
raised his hand to her, or made any threatening gestures
by raising his fist in a manner to make her believe that he
was about to strike her.
Helen Pepin, a housewife who used to sail as a waitress
on the Santa Rosa, testified with respect to the 1963
incident that she was sitting in the dining room with a
group of girls having coffee and heard Guyon and Miss
Christie arguing about Miss Christie having switched
people to different Article numbers. She further testified
that she was looking right at them and that while they
were both talking heatedly with the use of their hands, at
no time during the course of the argument did Guyon
swing at Miss Christie or raise his hand in a fist as if to
strike her. She further testified that when the argument
ended, Miss Christie went in the galley and Guyon "went
in the opposite direction where we serve tea."
Guyon and Pepin impressed me favorably as truthful
and forthright witnesses . Pepin was a neutral witness who
voluntarily came forward when she read in the newspapers
about Miss Christie's testimony at the instant hearing.
Miss Christie did not impress me in the same manner. In
addition to the contradictions between the statements in
her affidavit and her testimony, she surprisingly had
absolutely no recollection of the circumstances under
which she happened to give the affidavit on December 6,
1967, to Grace Lines' attorney but displayed a remarkable
memory as to the details of an incident occurring early in
1963. Under all the circumstances, I do not credit Miss
Christie's testimony to the extent that it is contradicted by
Guyon and Pepin. I find that neither in the argument in
1963 nor on any other occasion did Guyon swing at Miss
Christie, or raise his hand to her or make any threatening
gesture by raising his fist in a manner to make her believe
that he was about to strike her.
(4) Incidents involving waitress Brady
Muriel Brady, a waitress employed by Grace Lines,
testified as a witness for Respondent that on one occasion
about 6 p.m. Guyon came to her in the stewardess' locker,
"raising holy cain" because she had "left the floor five
minutes early from the promenade deck," and that when
she denied the accusation, "he pushed with his finger and
he pushed me against the wall " so that she had to bend
over to avoid being hurt . On cross-examination, she
denied that he pushed her with his finger but testified that
"he took his finger and then took his hand and went after
me." When asked what he did with his finger, she testified
that he pushed it at my eye but that "he did not put it in
my eye." She further admitted on cross-examination that
she had not mentioned this incident in either of the two•
sets of charges which had been submitted to the trial
committee . Nor did she include this incident in the
statement which she made at the hearing before the trial
committee on August 29, 1967. And there is no evidence
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she mentioned it before the membership meeting on
September 25, 1967. All that the record shows in this
respect is that, in response to Guyon's question at the
hearing before the trial committee as to whether he had
ever used a dangerous weapon against her or touched her
with his hands or finger, her only reply was that "you
have laid your hand on me by pointing your fingers in my
eye and accusing me of leaving the deck five minutes
early." When Guyon repeated his question, she again
replied that "you pointed your finger in my eye ... for
leaving the deck supposedly five minutes early."
She further testified that at an unspecified time on
another occasion "he backed me up and threw me against
the rail." In the set of charges which Port Agent
Labaczewski had mailed to Guyon and which was also
presented to the trial committee is included the following
description of the allegation that Guyon had attacked her
with a dangerous weapon: "On numerous occasions the
ship's chairman, Gaston Guyon, has passed me in the
galley and come into the dining room, grabbing me by the
hand and swinging me around and grabbing me across the
room and causing me to stumble. This type of action
caused me bodily injury and jeopardized my job aboard
ship." When the General Counsel asked Brady on
cross-examination if Guyon had at any time engaged in
the above-described conduct, she testified, "no bodily
injury" and merely added "he swung me around." She
admitted that she had not stated these things to the trial
committee, and the transcript of the hearing contains no
statements by her such as are in the charges and in her
testimony. In addition, there is no evidence that she had
mentioned this claimed incident in the September 25
membership meeting. She further admitted on
cross-examination that Guyon "never used any weapon
against me, nor on me. I told the membership at the
September 25 meeting the same thing" (yet, one of the
charges on which he was found guilty and expelled from
membership was that he had attacked her with a
dangerous weapon aboard ship).
Brady's inconsistencies and contradictions are readily
apparent from a reading of the foregoing. Moreover, if
these two incidents truly occurred in the manner in which
Brady testified and were of such a serious and aggravating
nature as she sought to convey by her testimony, then her
failure to describe them in the same manner and to the
same extent at her hearing before the trial committee and
at the membership meeting is so incomprehensible as to
give rise to the inference that either they did not occur at
all or that they were of much minor consequence and of
less magnitude than her description at the instant hearing.
In addition, Brady testified in a rambling, discursive, and
evasive manner which did not inspire confidence in her
veracity. She did not impress me as a credible witness."
In evaluating the nature and extent of Guyon's actions in
her description of the two incidents mentioned by Brady,
it should be noted that she herself was no delicate and
shrinking violet. She admittedly had been fired by Grace
Lines about four or five times (each time having been
reinstated through the intercession of an NMU
patrolman), once when a U.S. customs inspector found
ten bottles of unmanifested liquor in her room, another
time for abusing superior officers, and still another time
for fighting with another waitress.
"Dorothy Pile , a waitress on the same ship with Brady , had filed serious
charges of Nazism and anti-Semitism against Brady and on August 29,
1967, appeared at her hearing before the trial committee , prepared to press
and support her charges, immediately after the hearing on Brady's charges
Upon consideration of all the foregoing, I am
convinced and find that Brady's description of the two
incidents was grossly exaggerated and, if they did occur,
that at most Guyon on the first occasion merely pointed
his finger at her eye while reprimanding her for leaving
the floor early and on the second occasion merely swung
her around without causing her any bodily injury, under
circumstances and for reasons undisclosed by the record.
2. The defense of liability of Permanent Appeals
Board
Almost by way of passing, counsel for Respondent
briefly mentions in his brief that after April 16, 1968,
when Guyon was notified by the Permanent Appeals
Board that his appeal from the Union's refusal to register
him for employment was denied, "it was the Permanent
Appeals Board, and not the Union, who was responsible
for Mr. Guyon being refused registration."
As previously noted, the Permanent Appeals Board
consists of three members appointed by the Union and
three members appointed by the American Merchant
Marine Institute, Inc., an association of shipowners with
whom the Union has its contracts. It concededly holds no
hearings; it merely acquires information and makes its
decision. It rendered no written decisions but merely
informed Guyon that his appeal was denied, without
giving any reasons for the denial. Guyon had submitted to
Benson, the secretary of the Permanent Appeals Board, a
copy of the transcript of the proceeding before the trial
committee on the charges filed by Muriel Brady. This
transcript clearly shows that at most Guyon had once
pointed his finger at Brady's eye while reprimanding her
for leaving her station early, as previously set forth. There
is nothing else in this transcript concerning Guyon's
conduct which could by any stretch of the imagination
even remotely have any bearing on "vicious tendencies,"
and Benson made no contrary claim to Guyon in regard
to Brady. The only information which Benson gave to
Guyon was that the Permanent Appeals Board had been
"advised" of his involvement in the 1960 incident aboard
a United States Lines' ship which led to his indictment
and of three incidents involving Miss Christie in which he
allegedly used foul language and threats. It seems very
strange that, although the Union was aware of it, the
Appeals Board had not also been "advised" that the 1960
indictment had been nolle prossed because further
investigation showed that Complainant Mitchell was the
instigator and aggressor, as previously set forth. This was
however called to its attention by Guyon, as previously
noted. As to the three incidents involving Miss Christie,
Guyon was given no information as to what they were or
when they occurred. He of course denied this unspecified
blanked accusation. Counsel for Respondent stated at the
instant hearing that Miss Christie's affidavit of December
6, 1967, given to Grace Lines' attorney, was before the
Appeals Board. Although counsel's statement may not be
regarded as evidence, an examination of this affidavit
discloses three incidents; one in 1963 which I have
previously treated; another in March 1967 in which Guyon
allegedly "waved his finger in Miss Graham's [the dining
room hostess] face"; and the third about June 1, 1967,
against Guyon . Under these circumstances , Brady's testimony that at this
hearing Pile confessed to the trial committee that all her charges against
Brady were untrue and fabncatious is utterly incredible.
NATIONAL MARITIME UNION OF AMERICA
when he allegedly "used foul language in a threatening
Wanner and tone." At the instant hearing, Guyon also
credibly dcniedhavingengaged in theconduct mentioned inthe
last two incidents. Again, it seems very strange that the
Appeals Board was not also "advised" by Grace Lines that
on August 16, 1967, after all the incidents recited in Miss
Chnstie's' affidavit had allegedly occurred, Mr. Aguirre,
the Marine Personnel Manager for Grace Lines, gave
Guyon a ,reference letter which states that "while in our
employ Mr. Firmin-Guyon has proven himself to be a
person of high moral character and sober habits."
Other than what Benson advised Guyon by letter, as
above set iforth, the record does not show how the Appeals
Board conducted its investigation , what facts or
information were before the Appeals Board , what it
considered, and the basis for its denial of his appeal.
When asked by me at the instant hearing if he intended to
call members of the Appeals Board as witnesses , counsel
for Respondent replied in the affirmative. However,
neither Benson nor any member of the Appeals Board was
called as a witness, and Respondent's counsel has made
no attempt to explain the failure to do so.
In the - light of all the foregoing , Benson 's undenied
suggestion in one of his telephone conversations with
Guyon prior to March 11, 1968, that Guyon should make
another attempt to register because Benson thought the
"union was lifting the pressure," and that Guyon would be
"cleared," takes on added significance . It leads me to
conclude and find, particularly in view of the sparse
nature of the information which the record shows was
before the Appeals Board and the failure of any of its
members or its secretary to testify, that the denial of
Guyon's appeal was influenced by the Union. For this
reason alone, the Union may not escape liability for its
continued refusal to register Guyon.
In any event, the Permanent Appeals Board did not
direct or order Respondent Union to refuse to register
Guyon for employment. It merely denied his appeal for
reasons undisclosed by the record. Thereafter, it was the
Union, and not the Permanent Appeals Board, which
continued to refuse to register Guyon for employment.
Under all the circumstances, I find no merit to
Respondent's contention.
3. The defense that Guyon was a supervisor
As a last resort, Counsel for Respondent contends on
the last two pages of his 42-page brief that Guyon "was,
at all times herein relevant, a supervisory employee not
covered by the Act" and that "on this basis alone, the
complaint must be dismissed." In support of this
contention, counsel relies on the fact that Guyon had
occupied the supervisory position of Chief Deck Steward
aboard the S.S. Santa Rosa "prior to his being refused
registration for shipping," that the charge which he filed
on September 29, 1967, was dismissed by the Board
because there was insufficient evidence to establish that he
had applied for a nonsupervisory position on that date,
and that after September 27, 1968, when Guyon was
informed that he would be permitted to register for
shipping as a result of the stipulation signed by Judge
Motley on August 19, 1968, he did not register for
employment in any category but instead sought to obtain
his old job directly from Grace Lines. From this, Counsel
concludes that when Guyon went to the union hall on
March 11, 1968, to register for employment "in any
category," he "never really intended to work in any
category other than that of Chief Deck Steward," a
627
supervisory position. I do not agree.
I find that Guyon was in good faith seeking to register
for employment in any category on March 11, 1968.
Moreover, Respondent admits that until September 1968
it would have refused to register him in any category or
capacity, as was also made clear to Guyon on the
occasions when he had attempted to register. For Guyon
to have continued to attempt to register for employment
in any category during that period would have been a
futile act. I reject Respondent's contention as being
without merit.
D. Discussion and Conclusions
Counsel for Respondent contends in his brief that the
General Counsel's case "collapses" because "there was no
evidence as to who issued the refusal to register, under
what authority it was issued, or the reasons for which it
was issued." Indeed there is no evidence in the record on
these matters. But, contrary to Respondent's contention,
these are matters of affirmative defense on which
Respondent has the burden of proof. Respondent's failure
to adduce any evidence on these crucial matters,
concerning which it alone had knowledge, strongly
militates against the validity of its belatedly asserted
defense to its admitted refusal to register Guyon on and
after September 29, 1967.
Nor, I find, has Respondent sustained its burden of
proving its belated defense that Guyon was in fact a
person which "vicious tendencies" whom it for that reason
refused to register pursuant to its collective-bargaining
agreement . What is the horrendous conduct which
Respondent has marshalled to justify its branding of
Guyon in this manner? That he had a fight in June 1958
at La Havre, France, with a fellow seaman who was the
instigator and aggressor and during which each bit the
other's thumb? That he had a fight in April 1960 with a
fellow crewman, Mitchell, who was also the instigator and
a "troublemaker with belligerent and aggressive
characteristics" and during which Mitchell hit the
bulkhead and injured his skull? That in January 1963 he
gesticulated with his hands in the course of a heated
argument with Miss Christie to whom he was presenting
the grievances of several female employees? That in the
summer of 1963 he had a brief mental breakdown which
caused him to be hospitalized for a week in Bellevue
Hospital and which Respondent knew he was contending
was brought about by actions of Union officials still under
Federal grand jury investigation at the time of the instant
hearing? That in September 1964, acting on orders of his
superior, he escorted a drunken, abusive, and obstreperous
Gonzalez from the latter's duty station and during which
the latter drew a knife and got cut? Are these five
incidents, spread over a period of about 10 years, what
Respondent relies on to mark Guyon as a person with
"vicious tendencies" so as to bar him from employment in
an entire industry and thereby deprive him of the only
means of livelihood he has known? Or was it his conduct
in violating a no-gambling notice aboard ship in
November 1960, or in being absent upon the ship's
departure from Genoa in December 1960, or in being off
his station and in a female passenger room in May 1961?
In a searching attempt to justify its position,
Respondent has overreached itself by thus resurrecting
ancient, trivial incidents which obviously have no bearing
on "vicious tendencies" but which instead militate against
the validity of its defense. Despite Grace Lines' knowledge
of Guyon's one week stay in Bellevue Hospital and of the
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gonzalez incident , and despite Miss Christie' s admitted
complaint to her superior about the 1963 incident, Marine
Personnel Manager Aguirre of Grace Lines gave Guyon a
reference letter , dated August 17, 1967 (after all the
incidents recited in Miss Christie's affidavit had already
allegedly occurred), and stating that "while in our employ
Mr. Firmin-Guyon has proven himself to be a person of
high moral character and sober habits ." Moreover,
Respondent never before regarded any of the previously
recited conduct, either singly or collectively , as marking
Guyon with being a person who possessed "vicious
tendencies." Thus, not only did the Union continue to
register Guyon for employment after each of the above
incidents , but it also successfully interceded on his behalf
to get him reinstated whenever he had been fired therefor;
As late as 1965, the Union took and successfully
prosecuted Guyon's grievance against United States Lines
before Theodore Kheel, the permanent arbitrator under
the contract. In support of its position before Kheel that it
should not be required to employ Guyon, the Company
not only relied on the 1960 fight with Mitchell aboard its
ship but also produced the medical records from Bellevue
Hospital where Guyon had spent a week in the summer of
1963 (p. 22, Resp. br., and additionally claimed that
Guyon was "implicated in other disputes involving
aggression" (p. 1 of Kheel' s opinion). In a decision issued
in Guyon's favor on October 22, 1965, Kheel pointed out
that "Mr. Guyon's record since 1960 seems to confirm
that he is now a sober and industrious individual."
In view of all the foregoing, what was the catalyst
which suddenly transformed Guyon into a person with
"vicious tendencies?" Counsel for Respondent states in his
brief that this occurred "when in September of 1967 it
came to the Union' s attention that Guyon had on at least
two occasions physically threatened a female crew
member, Muriel Brady, once by pushing her with his
finger and shoving her against the wall so that she had to
bend over backward to avoid being hurt and once by
backing her up and throwing her against the rail."
However, Respondent adduced no evidence to the effect
that its initial refusal to register Guyon was for the reason
that his alleged misconduct toward Brady indicated that
he was a person with "vicious tendencies." Indeed , there is
even no record evidence that such alleged conduct by
Guyon "came to the Union' s attention" in September
1967. No such incidents were included in the charges
which Brady read before the trial committee on August
29, 1967, and no statements to that effect were made by
Brady or any one else either before the trial committee or
the membership meeting of September 25, 1967, as
previously found. Respondent knew through the
attendance of its admitted officers and agents at the
September 25 membership meeting that Brady at that
meeting denied the charge that Guyon had attacked her
with a dangerous weapon , a false charge on which he was
nevertheless expelled. It is significant that not even the
Permanent Appeals Committee later mentioned such
incidents in the correspondence which its secretary had
with Guyon. The record shows that the first time that
Brady made such accusations was on November 8, 1968,
when she testified at the instant hearing and admitted she
received no bodily injury , as previously found . Thus, the
Union could not have become aware of Brady's
accusations in September 1967. Moreover, I have found
that Brady is not a credible witness and that Guyon did
not in fact engage in the exaggerated conduct described by
Brady in her direct examination . In any event, even
assuming Respondent' s contention that it learned in
September 1967 that Guyon had engaged in the conduct
to which Brady testified , I find that this did not suddenly
convert him into a person with "vicious tendencies," or
indicate that he was such a person , or even cause
Respondent to entertain a good -faith belief to that effect.
What then was the reason for Respondent ' s abrupt
transformation from that of Guyon ' s supporter and
protagonist prior to 1966 to that of his antagonist after
1966? The combination to unlock the answer to this
question becomes apparent from a consideration of the
following conduct and incidents previously detailed and
found:
1. Before September 12, 1967
(a) When on the S . S. Santa Rosa in the Port of New
York on January 7, 1966, Labaczewski, Acting Port agent
for the Port of New York, realized that Guyon was
serious about his then announced intention to become a
candidate for the office of Port agent for the Port of New
York in the forthcoming NMU election, Labaczewski
abused and cursed Guyon with obscene names and warned
that "we have ways of dealing with you" and that Guyon
was "just inviting trouble."
(b) One of the "ways of dealing" with Guyon for his
audacity in seeking to run for New York Port agent
against Labaczewski , the administration's candidate,
manifested itself almost immediately when, upon the
ship ' s return to the first American port, Labaczewski
instigated an attempted logging action against Guyon on
the false charge that it was Guyon who had cursed
Labaczewski aboard the S . S. Santa Rosa on January 7.
(c) When Guyon immediately telephoned and
complained to William Perry, assistant to NMU President
Curran, about Labaczewski 's instigation of a false logging
against him , explaining that it was Labaczewski who had
done the abusing and cursing just because Guyon had
declared his intention to run for Port agent, Perry
condoned and supported Labaczewski ' s actions by
announcing that he was "going to back the port agent on
this," accused Guyon of being "a wise guy," asked how
Guyon would "like somebody running for your job," and
warned that "I'll fix you."
(d) Among "ways of dealing" with Guyon was the
abuse and harassment to which he was subjected, on
Labaczewski ' s orders, when the ship arrived in the Port of
New York on January 20, 1966, by three union officials in
connection with an attempt to seize his union book,
including threats that "if we don't get the book you're not
going to leave the ship in one piece."
(e) When Guyon confronted Labaczewski that same day
and demanded an explanation for his conduct in sending
three men down to abuse him, Labaczewski lamely
explained that the incident was "a misunderstanding"
because "someone told me your dues weren ' t paid up."
Before the conversation ended, Labaczewski asked if
Guyon was "serious" and was "really going to run against
me," and warned that "you know you can ' t beat the slate
anyway."
(f) When the S.S. Santa Rosa returned from its next
voyage to the port of New York on February 3, 1966, the
Union convened an unprecedented meeting in the main
passenger dining room , with the entire crew and virtually
all of Respondent's officials present, ostensibly to take up
the issue about Guyon being abused by the three Union
officials who attempted to seize his union book on
January 20. Shortly before the meeting began, NMU
Patrolman Touhey privately cautioned Guyon "for your
NATIONAL MARITIME UNION OF AMERICA 629
own good" to "forget about running for New York Port
agent" and to drop his charges against the three Union
officials ; who had attempted to get his union book on
January 20, promising that "if you do that, everything will
go back to normal" and "we won't bother you anymore."
A few minutes later, William Perry also privately
counseled Guyon to drop his charges against those
officials, threatening that "if you don't do that I'm going
to expose you to this crew." When Guyon refused, as he
had also refused Touhey's request, Perry threatened, "if
you don't come to reason, you'll be sorry."
(g) Instead of addressing himself to the issue for which
the meeting ostensibly was called, Perry used the meeting
solely as a forum to abuse, denigrate, and propagandize
against Guyon, pointing out that he had been in a mental
ward in Bellevue Hospital and twice exclaiming, "is that
who you want to run the port of New York!"
(h) When the crew objected to the Union official's
"slander" against Guyon instead of taking up the issue for
which the meeting was ostensibly called, the Union
abruptly announced that the meeting would be continued
later that day before the ship's committee at the union
hall where the matter was whitewashed by the issuance of
an "NMU Patrolman's Report," dated February 3, 1966,
and containing an entry (in reference to the attempt to
seize Guyon's book on January 20) which falsely stated
that the matter was dropped because Guyon had "agreed
that the whole thing was a misunderstanding."
(i) When the type of harassment above set forth failed
to dissuade Guyon from his intention to become a
candidate for New York Port agent, the Union
immediately made good on its additional threats and
warnings by resorting to what it must have regarded as a
more effective form of persuasion to "stop him." Thus, at
the union hall the very next day, February 4, while Guyon
was soliciting endorsement signatures on his nomination
forms for New York Port agent, he was severely and
brutally assaulted by three men whom Patrolman Ryan
had escorted to the scene and to whom he had "fingered"
Guyon, with Chief Master of Arms Winbusch preventing
anyone from coming to Guyon's aid by pushing the crowd
away with breast stroke-like motions.
(j) NMU President Curran's resentment against
Guyon's continued attack upon him and his
administration after the 1966 elections and Guyon's
support for a new election, all of which appeared in the
leaflets which Guyon wrote and openly distributed in the
presence of union officials, is demonstrated by Curran's
unprecedented conduct on April 6, 1967, in barging into a
meeting at the union hall where Guyon was processing
certain grievances as Ship's Committee chairman and in a
loud voice accusing Guyon of being a "troublemaker,"
calling him a "punk," and ordering everything he said to
be recorded on tape.
As Guyon's charge in this proceeding was filed on
March 12, 1968, 1 am precluded by Section 10(b) of the
Act from finding as an unfair labor practice anything
prior to September 12, 1967. However, such events may
be and have been considered by me for the light they may
shed to illuminate and explain Respondent's motivation
and conduct in the events which occurred thereafter."
2. After September 12, 1967
(a) A few days before September 25, 1967, Guyon
testified in Federal court against the NMU in the suit
brought by Secretary of Labor Wirtz to have the 1966
elections set aside and new ones ordered . A Union
membership meeting, attended by many admitted high
ranking officers and agents of the Union, was held on
September 25, 1967, for the purpose of voting on the trial
committee's recommendations that Guyon be expelled
from the Union. New York Port Agent Labaczewski, who
chaired the meeting, attempted to influence the vote in
favor of Guyon's expulsion by stating at one point, just
before calling for a vote, that "I guess you know brother
Gaston (Guyon) is the one who just testified against the
Union in court a few days ago" and at another point that
"Let me remind you again he testified against the Union
in Federal court. Is that what you want? Now we are
going to vote." As Brady openly admitted at this meeting
that Guyon had not attacked her with a dangerous
weapon, a false charge on which the membership
nevertheless voted for his expulsion, it is reasonable to
infer, as I do, that by his reminders above set forth
Labaczewski successfully influenced the membership vote
for Guyon's expulsion at least on that false charge.
(b) Four days later, on September 29, the Union, by
Chief Dispatcher Lucci, refused to permit Guyon to
register for reshipping on the S.S. Santa Rosa because he
had been expelled and was no longer a Union member
despite the fact that the Union was also required to
register nonmembers upon the payment of the required
service fee which Guyon at that time offered to pay.
(c) Respondent's unexplained failure to adduce any
testimony concerning the circumstance and manner in
which the decision was suddenly reached and implemented
to refuse to register Guyon if, as Respondent contends,
the basis therefore was not his nonmembership, matters
which were peculiarly and solely within its own
knowledge, "weighs heavily in favor of the General
Counsel's case." J. C. Penney Co., Inc., 172 NLRB No.
134. Indeed, under these circumstances, the inference is
warranted that such testimony would have been adverse to
Respondent's case.14
(d) Not until December 4, 1967, more than 2 months
later, was Guyon advised, indirectly through Benson, the
secretary of the Permanent Appeals Board, of the shift in
the Union's reason for refusing to register him, then
claiming that it was because of "information indicating"
that he "was a person with vicious tendencies under
Article I, Section 6(c) of the collective-bargaining
agreement."
(e) Benson advised Guyon in one of their telephone
conversations prior to March 11, 1968, that Guyon should
make another attempt to register because Benson thought
the "union was lifting the pressure" and that "this time I
think you will be clear[ed]."
(f) However, the Union did not lift the pressure, and
Guyon was not cleared. When Guyon went back to the
union hall on March 11, 1968, to register for any kind of
job in any category and to pay the required service fee as
a nonmember, he was not permitted to do so or even to
enter the union hall and was told that nothing had
changed from September 1967, when he was expelled from
the Union.
(g) Thereafter, the Union influenced the Permanent
Appeals Board to deny Guyon's appeal. On April 16,
1968, Guyon was merely informed by Benson that his
"N.L R B. v. Bryan Manufacturing Co, 362 US 411; Keller
Aluminum Chairs Southern , Inc, 173 NLRB No. 139.
"Interstate Circuit, Inc v. US 306 U.S. 208, 226; Gibbs Die Casting
Aluminum Corp., 174 NLRB No 15, TXD, sec 11, c, 2 and cases cited
therem.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appeal was denied, without giving any reasons or basis for
the Appeals Board's decision.
The foregoing events and conduct, considered in the
light of what had occurred prior to September 12, 1967,
as previously detailed, convince me, and I find, that
Respondent NMU refused to permit Gaston
Firmin-Guyon to register for employment as an unlicensed
seaman solely because of his previously detailed
intraunion activities while a member of the NMU and his
activities in opposition to the incumbent administration
and officials of the NMU. I further find that by such
conduct on and after March 11, 1968, Respondent
violated Section 8(b)(1)(A) and 8(b)(2) of the Act. It
violated Section 8(b)(1)(A) because Respondent thereby
restrained and coerced Guyon in the exercise of his rights
guaranteed by Section 7 of the Act. It violated Section
8(b)(2) because Respondent thereby caused and attempted
to cause steamship companies with which it had
collective-bargaining agreements to discriminate against
Guyon in violation of Section 8(a)(3) of the Act.
Conclusions of Law
1. Gaston Firmin-Guyon was not a person who
possessed "vicious tendencies" and Respondent's refusal
to permit him to register was not based on any good-faith
belief to that effect.
2. Respondent refused to permit Guyon to register for
employment as an unlicensed seaman solely because of his
intraunion activities while a member of the NMU and his
activities in opposition to the incumbent administration
and officials of the NMU.
3. By such conduct on and after March 11, 1968,
Respondent restrained and coerced employee Guyon in the
exercise of his rights guaranteed in Section 7 of the Act
and thereby engaged in unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act
4. By such conduct on and after March 11, 1968,
Respondent also caused and attempted to cause steamship
companies with which it had collective-bargaining
agreements to discriminate against an employee in
violation of Section 8(a)(3) of the Act and thereby
engaged in unfair labor practices within the meaning of
Section 8(b)(2) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and that it take certain
affirmative action which will effectuate the policies of the
Act.
Having found that Respondent violated Sections 8(b)(1)
(A) and 8(b)(2) of the Act by refusing to permit Guyon to
register for employment for the above-stated unlawful
reasons, I will recommend that Respondent be ordered
promptly to register Guyon, when requested to do so, for
employment as an unlicensed seaman in whatever capacity
he may be qualified, to notify Guyon in writing to that
effect, to notify in writing all steamship companies with
which it has collective-bargaining agreements that
notwithstanding any prior agreement or understanding it
now has no objection to Guyon being employed by any of
them as an unlicensed seaman in whatever capacity he
may be qualified and that it will promptly register him for
such employment upon his request, and to publish in
conspicuous places in three consecutive issues of "The
pilot," the official organ of the NMU, a copy of the
attached notice marked "Appendix"." I shall further
recommend that Respondent make Guyon whole for any
loss of earnings he may have suffered by reason of
Respondent's discrimination against him. Said losses shall
be computed on a quarterly basis in a manner consistent
with the policy established by the Board in F. W.
Woolworth Company, 90 NLRB 289, with interest
thereon computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings and conclusions and the
entire record, pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
Respondent National Maritime Union of America,
AFL-CIO, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to permit Gaston Firmin-Guyon, or any
other unlicensed seaman , to register for employment foi
which they are qualified, when requested to do so, because
of their intra-union activities or activities in opposition to
the officials and administration of NMU.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act including the rights of members to
run for union office and to oppose administration policies
and officers, or causing or attempting to cause steamship
companies with which it has collective-bargaining
contracts to discriminate against employees in violation of
Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Promptly register Gaston Firmin-Guyon for
employment for which he is qualified as an unlicensed
seaman, when requested by him to do so, and so notify
him in writing.
(b) Make whole Gaston Firmin-Guyon for any loss of
earnings he may have suffered as a result of Respondent's
discrimination against him, in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Send written notices to all steamship companies
with which it has collective-bargaining agreements, stating
that notwithstanding any prior agreement or
understanding it now has no objection to Guyon being
employed by any of them as an unlicensed seaman in
whatever capacity he may be qualified and that it will
promptly register him for such employment upon his
request.
(d) Post at its union hall and meeting places in New
York, New York, as well as all places where notices to its
members and to employees are customarily posted, and
publish in conspicuous places of "The Pilot," copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms to be provided by the Regional Director
for Region 2, shall, after being duly signed by an official
of Respondent, be posted by it immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, and shall be published in "The Pilot"
immediately upon receipt thereof and be maintained in
conspicuous places therein for three consecutive issues.
Reasonable steps shall be taken by the Respondent to
"American Federation of Musicians of the United States and Canada,
AFL-CIO, 165 NLRB No 110 (TXD)
"In the event that this Recommended Order is adopted by the Board,
NATIONAL MARITIME UNION OF AMERICA 631
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 2, in
writing,' within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply therewith.17
the wordi "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, Enforcing an Order" shall be substituted for the words
"a Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith "
APPENDIX
so notify him in writing.
WE WILL make up to Gaston Firmin-Guyon the
earnings he may have lost because of the discrimination
against him and pay him 6 percent interest.
WE WILL send written notices to all steamship
companies with which we have contracts and tell them
that we have no objection to Guyon being employed by
them as an unlicensed seaman in any job for which he
is qualified and WE WILL also tell them that we will
promptly register Guyon for such employment upon his
request.
WE WILL NOT restrain or coerce you intheexerciseof
rights guaranteed by the National Labor Relations Act,
including the rights of members to run for union office
and to oppose administration policies and officers.
WE WILL publish in "The Pilot" a copy of this notice
in conspicuous places in three consecutive issues.
NOTICE TO AL1. MFMBERS OF NATIONAL MARITIME UNION
OI AMERICA, AFL-CIO AND TO ALL UNLICENSED SEAMEN
Pursuant to The Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL. NOT refuse to permit Gaston Firmin -Guyon,
or any other unlicensed seaman, to register for
employment for which they are qualified, when
requested to do so , because of their intra-union
activities or activities in opposition to the officials and
administration of NMU.
WE WILL promptly register Gaston Firmin-Guyon for
employment for which he is qualified as an unlicensed
seaman , when requested by him to do so, and WE WILL
NATIONAL MARITIME
UNION OF AMERICA,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Federal Office
Building , 26 Federal Plaza, New York, New York 10007,
Telephone 212-264-0340.