Brown Shipbuilding Co.

National Labor Relations Board - Board Decisions

Mar 22, 1946

66 N.L.R.B. 1047 (N.L.R.B. 1946)

In the flatter of BROWN SHIPBUILDING COMPANY and MARINE ANGLE.
FURNACEMEN AND FORGERS #639 INTERNATIONAL BROTHERHOOD OF
BLACKSMITHS, DROP FORGERS AND HELPERS, A. F. OF L.
In the Matter of BROWN SHIPBUILDING COMPANY, INC. and INTER-
NATIONAi, BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND
HELPERS OF AMERICA, A. F. OF L.
In the Matter of BROWN SHIPBUILDING COMPANY and INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF
AMERICA, LOCAL 731, A. F. of L.
In the Matter of BROWN SHIPBUILDING COMPANY, INC . and INTER-
NATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS R
HELPERS OF AMERICA, LOCAL 469, A. F. of L.
Cases Nos. 16-C-1015, 16-C-1154, 16-C-1161, and 16-R-980 , respec-
tively.-Decided March 22, 1946
DECISION
AND
ORDER
On June 26, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceedings, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that the respondent cease and desist from its
unfair labor practices and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. In the Inter-
mediate Report he further found, as alleged in the Boilermakers'
objections, that the respondent had interfered with an election con-
ducted by the Board among the respondent's employees for the pur-
pose of determining representatives for collective bargaining, and
recommended that the election be set aside. Thereafter, the respond-
ent filed exceptions to the Intermediate Report and a supporting
brief. On February 14, 1946, the Board at Washington, D. C. heard
oral argument, in which the respondent, the Blacksmiths, and the
Boilermakers participated.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
66 N. L. R. B., No. 130.
1047
104 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent's exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following modifications, additions, and
exceptions:
1. We agree with the Trial Examiners' findings of fact in regard
to the circumstances surrounding the termination of employment of
W. D. Best, as set forth in the Intermediate Report. However, we
do not agree with the Trial Examiner's conclusions that the respond-
ent discharged Best, actually or constructively, or that Best was dis-
criminatorily refused reinstatement. In our opinion Best voluntarily
quit and thereby severed the employment relationship. While the
respondent had previously taken steps to discharge Best, the discharge
was not consummated, and Foreman Lyle expressly requested Best
to remain at his job. Instead, Best elected to resign despite the fact
that, after rescission of the decision to discharge, nothing occurred
which gave Best any reason to believe that he would be discharged,
or that the respondent had not reached a place of penitence. While
it is true that the respondent gave Best no specific assurance that he
was free to engage in union activities, there is also no testimony to
the effect that, when Lyle destroyed the discharge slip and agreed
to "take care of it," or when Lyle suggested to Best that he "sleep
over it," Lyle imposed as a condition to Best's resumption of work
that he abandon his union activities. On this record, we are not ready
to infer, as is our dissenting colleague, that such an illegal condition
was imposed or that Best so understood Lyle. Nor are we persuaded
that the respondent thereafter refused to reinstate Best because of his
union activities, in view of the fact that, following the destruction
of the discharge slip, the respondent urged Best to remain at his job.
Nothing occurred from that time to the time of his application for
reinstatement that establishes a reversal of the respondent's decision
not to seek to rid itself of Best.
We shall therefore dismiss the complaint insofar as it alleges that
the respondent discriminated against W. D. Best within the meaning
of Section 8 (3) of the Act.
2. In view of the substantial confusion arising from the fact that
job classifications described in the unit found appropriate in the
representation proceeding either did not exist in the respondent's
shipyard or referred to occupations differently classified by the
respondent, as more fully set forth in the Intermediate Report, we
shall vacate and set aside the representation hearing and all, proceed-
ings thereafter in the representation case and direct that a new repre-
sentation hearing be conducted at a time when the Regional Director
advises us that it is appropriate to do so. In view of our decision to
set aside the representation hearing we deem it unnecessary to deter-
BROWN SHIPBUILDING COMPANY 1049
mine whether the respondent interfered with the Boilermakers' elec-
tion of November 10, 1944, by distribution of its Victory Dispatch or
otherwise.
3. The Intermediate Report inadvertently states that an election,
which occurred on August 11, 1944, took place on August 10, 1944,
and that L. M. Chason, who was first employed by the respondent on
August 20, 1944, was hired on August 20, 1943. We hereby correct
these misstatements.
THE REMEDY
We have found that the respondent violated the Act by (1) requir-
ing its employees to disclose their union affiliation; (2) intimidating
and coercing the employees by statements made in the plant paper,
Victory Dispatch; and (3) by warning employees not to engage in
union activities and reprimanding them for doing so. We have
further found that the respondent discriminatorily discharged and
refused to reinstate Sunday and Chason because of their union activi-
ties. Upon the entire record, we infer and find that the respondent
by its foregoing coercive course of conduct, and particularly by the
discharges, has displayed an attitude of flagrant opposition to the
purposes of the Act. Because of the respondent's unlawful conduct
and the underlying purpose manifested thereby, we are convinced
and find that the unfair labor practices found are persuasively related
to the other unfair labor practices prescribed by the Act, and that
danger of the commission in the future of any or all of the unfair
labor practices listed in the Act is to be anticipated from the respond-
ent's conduct in the past. The preventive purposes of the Act will
be thwarted unless our order is coextensive with the threat.' We,
therefore, follow the Trial Examiner's recommendation as to the
remedy and shall order the respondent to cease and desist not only
from the unfair labor practices herein found, but also from in any
other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act. In
addition, we shall order the respondent to take the affirmative action
recommended by the Trial Examiner, except as to Best.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Brown Shipbuilding Com-
pany, Houston, Texas, and its officers, agents, successors, and assigns,
shall :
I See N L. R B v. Express Publishing company, 312 U S 426; May Department
Stores Co v N L R B, 326 U. S. 376.
1050 DECISIONS OF NATIONAL LAEOIt RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Boilermakers, Iron Shipbuilders and Helpers of America, Local 731,
A. F. of L., and Marine Angle Furnacemen and Forgers #639, Inter-
national Brotherhood of Blacksmiths, Drop Forgers and Helpers,
A. F. of L., or any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees, or by dis-
criminating in any other manner in regard to their hire or tenure of
employment, or any term or condition of their employment ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the aforesaid or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities, for the purpose
of collective bargaining or other mutual aid or protection, as guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to L. T. Sunday and L. M. Chason immediate and full
reinstatement to their former or substantially equivalent positions.
without prejudice to their seniority or other rights and privileges;
(b) Make whole L. T. Sunday and L. M. Chason for any loss of
pay that they may have suffered as a result of the discrimination
against them, in the manner provided in the section of the Inter-
mediate Report, attached hereto, entitled "The Remedy";
(c) Delete from the application forms for employment any ques-
tion as to the applicant's union affiliation;
(d) Post at its shipyards in Harris County, Texas, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by the respondent's representative, be
posted by the respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the respondent to
insure that said notices are not altered, defaced, or covered by any
other material;
(e) 'Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
IT IS IIEREI3Y FURTHER ORDERED that the hearing in Case No. 16-R-
980 and all proceedings thereafter conducted therein be, and they
hereby are, vacated and set aside.
AND IT Is FuRTIIER ORDERED that the complaint filed in Case No.
16-C-10Th against the respondent, Brown Shipbuilding Company,
BROWN SHIPBUILDING COMPANY 10s]
Houston, Texas , be, and it hereby is, dismissed insofar as it alleges
that the respondent discriminated against W. D. Best within the
meaning of Section 8 (3) of the Act.
"APPENDIX A"
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER
of the National Labor Relations Board, and in order to effectuate the
policies of the National Labor Relations Act, we hereby notify our
employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist International
Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of
America, Locals 469 and 731, A. F. of L., or Marine Angle Fur-
nacemen and Forgers #639, International Brotherhood of Black-
smiths, Drop Forgers and Helpers, A. F. of L., or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection.
WE WILL offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination.
L. T. Sunday
L. M. Chason
WE WILL cease requiring applicants for employment to disclose
their union affiliation.
All our employees are free to become or remain members of the
above-named unions or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
BROWN SHIPBUILDING COMPANY INC.,
Employer.
Dated .................. By....................................
(Representative ) ( Title)
NOTE : Any of the above-named employees presently serving in
the armed forces of the United States will be offered full reinstate-
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment upon application in accordance with the Selective Service Act
after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
MR. JOHN M. HOUSTON, concurring in part; dissenting in part :
I concur with my colleagues in every respect except in regard to
the case of W. D. Best.
I would adopt the Trial Examiner's recommendation that the
respondent constructively discharged Best on October 21, 1943, and
thereafter refused to reinstate him because of his union activities.
Best had been reprimanded for his union activities shortly before
October 20, 1943. On that day Lyle produced a discharge slip for
Best and informed him that Works Manager J. E. Walters had
directed Lyle to discharge Best because of his union activities. As a
result of Best's pleading, Lyle tore up the discharge slip and told
Best to return to work, without, however, reassuring him that he
would not be discriminated against or reprimanded for his union
activities. Best thereupon resumed work. Twice thereafter on the
same day, however, Best told Lyle that he, Best, could not continue
working for the respondent under the circumstances. On both occa-
sions, Lyle persuaded Best to return to work rather than accept a
discharge slip, Lyle stating, on the first occasion, that he would *'take
care of it" and, on the second, that Best "go home and sleep over it."
On the following morning, Best, after reporting for work, went to
Lyle; complained of inability to sleep during the night before; and
stated that Lyle "might just as well" issue the discharge slip. Best's
action on the morning of October 21, according to credible testimony
and the Trial Examiner's conclusion, was motivated by the fact that
he could not work with a threat of discharge hanging over him. I
agree with this conclusion. Under the circumstances, it is reasonable
to infer that Lyle destroyed the discharge slip and undertook to "take
care of it" upon the implicit condition that Best would abandon his
union activities. In my opinion that is what Lyle meant when, to
allay Best's uneasiness, Lyle advised Best to go home and "sleep over
it," and Best so understood Lyle. The imposition of such a condition
of employment is illegal. Best was unwilling to forego his union
activities, as was his right, and realized that he faced discharge if
he exercised rights guaranteed to him under the Act. I find that
Best was justified in accepting the discharge slip rather than remain
at work under such an illegal condition and that the respondent thus
discriminated against Best.
I would also adopt the Trial Examiner's finding and conclusion
that, after the discharge, the respondent discriminated against Best
BROWN SHIPBUILDING COMPANY 1053
by refusing to reinstate him for the same reason that it had construc-
tively discharged him.
INTERMEDIATE REPORT
Ili Lewis Jlooi c, for the Bow d
Jtessis _1 J. lilrt:f and 11(1,naii .Jones, of .Austin, Tex, for the respondent.
!Messrs. Clarence C. Retil and J. I Borel, of Houston, Tex, for,-the Boller-
makers
Mr tifai shall IV. Marl e, of Chicago, 111, for the VIacksmiths.
STATEMYt'i OF '1111: CAaE
On Juke 23. 1944, International ISrotheriood of Jioileimakers, Iron Ship-
builders and Yelpers of America, Local 469, A. F of L, herein called the
Boileinnakers, filed with the Regional Director for the Sixteenth Region (Fort
\V ith. Texas), a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Brown Shipbuilding Com-
pany, Inc, Houston, Texas, herein called the respondent, and requesting an
investigation and certification of representatives pursuant to Section 9 (c) of
the National Labor Relations Act, 49 Stat 449, herein called the Act. On
October 14, 1944,-the National Labor Relations Board, herein called the Board,
issued its Decision and Direction of Election' in which it directed, inter alia,
that an election by secret ballot be held to determine NNhether certain of the
respondent's employees desired to be represented by the Boilermakers for the
purpose of collective bargaining'
The election was held on November 10, 1944. A majority of the employees
who participated voted against the Boilermakers Thereafter, on November 15,
1944, objections to the election were filed by the Boilermakers, and charges of
unfair labor practices were duly filed by the Boilermakers International Union
on November 15, 1944, and by Local 731 thereof on December 9, 19441 Charges
of unfair labor practices involving other incidents leaving also been duly filed
on November 27, 1943, by Marine Angle I'urnaceinen and Forgers, #639
International Brotherhood of Blacksmiths, Drop Foigeis and Ilelpers, A. F
of L, herein called the Blacksmiths, the Board on January 20, 1945, directed
a hearing on the objections to the election and on February 8, 1945, ordered
that that case be consolidated with the unfair labor practice cases.
On February 9, 1945, upon the foregoing charges, the Board, by the Regional
Director, Issued its complaint against the respondent, alleging that the respond-
ent had engaged in unfair labor practices within the meaning of Section 2 (6)
and (7) of the Act. Copies of the charges, the complaint, and notice of hearing
on flee complaint and objections to the election, were duly served upon the
iespondent, the Boilermakers, and the Blacksmiths
1H ith respect to the unfair labor practices, the complaint alleged, in sub-
stance, that the respondent (1) about October 21, 1943, discharged and there-
after refused to reinstate W D Best, and about November 20, 1943, discharged
i 1lattei of Iii on in Shipbuilding Cornpany, Inc, 58 N L It B 998
2At the same time the Board also diiected that several other elections be held among
eniplo3ees of the Company upon petitions of other labor organizations These other
elections and organizations are not involved in the present proceedings
%Except where distinction is necessary, these organizations will be referred to both
collectively and singly as the Boilermakers
I 054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and thereafter refused to reinstate L. T. Sunday, for the reason that they
had joined or assisted the Blacksmiths or engaged in concerted activity ;
(2) about November 20, 1944, discharged and thereafter refused to reinstate
L. M. Chason for the reason that he had joined or assisted Local 731 of the
Boilermakers or engaged in concerted activity ; (3) through various named
individuals, (a) interrogated employees concerning their union affiliation;
(b) disparaged and expressed disapproval of unions ; (c) urged, persuaded,
and warned its employees not to engage in union activities; (4) prior to the
Boilermakers' election previously referred to, and prior to another Board-
directed election held on August 10, 1944, distributed among its employees
newspapers containing misleading, derogatory and prejudicial statements con-
cerning unions and union activities: and (5) discriminatorily prevented the
distribution of union literature on the respondent's parking lot Some of the
conduct related above was alleged to have interfered with the elections. In
addition, the objections to the Boilermakers' election also alleged that it large
number of negro employees were improperly classified and thus were denied
the right to vote in that election.
On February 21, 1945, the respondent filed its answer in which it denied the
commission of unfair labor practices, denied that it was engaged in or that
its activities affected commerce, averred that it was deprived of due process
of law by reason of pre-determination of the issues by the Board, and urged
that the complaint and the objections to the election be dismissed.'
Upon due notice, a hearing was held at Houston, Texas, on February 22, 23,
and 24, 1945, before Charles W. Schneider, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the respondent
were represented by counsel, and the Boilermakers and the Blacksmiths by
their representatives All parties participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. During the course of the hear-
ing, the respondent moved to strike various allegations in the complaint and
in the Regional Director's report on objections to the election, which motion
was denied. At the conclusion of the hearing, upon motion and without objec-
tion, the pleadings were amended to conform to the proof with respect to dates,
the spelling of names, and similar minor variations. All parties waived oral
argument before the undersigned Following the close of the hearing, counsel
for the iespondent and for the Board filed briefs
Upon the record thus iiado, and from his observation of the witnesses, the
undersigned makes the following
FINDINGS OF FACT
I I Ili,, BUSINESS OF THE RESPONDENT
Brown Shipbuilding Company, Tile, is a Delaware corporation having its
principal Texas otlice in Ilouston, Texas, where it is exclusively engaged in
the construction of combat vessels for the United States Navy at yards in
Harris County, near Houston. These operations are carried on pursuant to a
contract with the Navy. About 14,(x0 persons are employed. The yards con-
sist of two attached sections called "A" yard and "B" yard. "A" yard Is
owned by the respondent ; "I>" yard is owned by the United States Govern-
ment and leased to the respondent for a rental of $1.00 per year. Operations
f The undersigned finds no evidence to support the assertion that the issues had been
predetermined by the Board
BROWN SHIPBUILDING COMPANY loss
in both yards are under the same supervision, direction, and control. The work
of the yards- consists of the fabrication of iron and steel and other products
for, and the construction of, combat naval vessels. All material used by the
respondent is purchased exclusively for and remains the property of the United
States Government. A substantial amount of material for ships is acquired
from sources outside the State of Texas and shipped to the respondent's yards
Completed vessels are delivered to the United States Navy at the respondent's
yards. The respondent's annual vohu ie of business is in excess of one million
dollars. The respondent maintains an employment office where representatives
of the respondent hire or recommend applicants for hire. The respondent pays
employees on its own checks and maintains Social Security records for them
All operations are subject to the supervision of the United States Government
The respondent's supervisors discharge employees Applications for employ-
ment are subject to approval by it Navy representative Termination slips are
submitted to government representatives at the yard, who can require the dis-
charge of employees. It is found-that the respondent is engaged in commerce.
and is an employer within the meaning of the Act '
U. THE ORGANIZATIONS INVOLVED
International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers
of America , and Locals 469 and 731 thereof, and Marine Angle Furnacemen and
Forgers #639, International Brotherhood of Blacksmiths, Drop Forgers and
Helpers, are labor organizations affiliated with the American Federation of
Labor, admitting to membership employees of the respondent
Ill. Tilt. L NRAiR LABOR PRACTICES
A. The discharges of 11'. D Best and L. 1'. Sunday
Best and Sunday were blacksmiths Best was hired on June 21, 1942, as a
helper at a rate of $.75, per hour and was subsequently promoted to blacksmith
first class. At the time his employment with the respondent terminated on
October 21, 1943, Best was third in seniority of 25 to 30 employees, and his
wages had been increased to $1.20 per hour. In May, 1943, Best was one of
57 persons selected by the respondent to be honorary guests at it launching ana
luncheon for having completed an e ght months' period of work without ab-
sence. Sunday was a second-class blacksmith earning $1.10 per hour. He was
hired on August 25, 1943.
Best was president of Blacksmiths Local 639, and Sunday was its financial
secretary. They were the only union members in good standing employed in
their department. Both wore union buttons at work. J. J. Lyle was foreman,
and M . H. Sweeney was leaderman in the department. Both Lyle and Sweeney
were aware of Best's and Sunday's offices in the Union Lyle and Sweeney
had formerly been members of the Blacksmiths
Sometime in the first part of October 1943, Sunday, girth the peiwissnon of
Foreman Lyle and Leaderman Sweeney, distributed union application cards
In the department. The record does not disclose whether this distribution oc-
curred during working hours Best also distributed cards NN ith the permission of
c See Matter of Brown Shipbuilding Company, Inc, 57 N L It. B 326; Mattel of
Brown Shipbuilding Company, Ire, 58 N m, R It 998
6Except where otherwise indicated, the findings in this subsection are based on un-
disputed facts or on uncontradicted and credible testimony by Best and Sunday
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lyle. On one occasion, during his working hours, Best gave another foreman,
named Smith, some union application cards at the specific suggestion of Lyle.'
About October 18, 1943, Sunday was summoned to Lyle's office in the plant
where Lyle, in the presence of Sweeney, told Sunday that lie and Best were
engaging in union activity. Lyle further said that he had received orders from
J. E. Walters, the respondent's Works Manager, to stop union activity in the
yard or to discharge the men involved Lyle went on to say that he had to "take
care of" his own job, stated that he needed Sunday, and suggested that Sunday
abandon his union activity Up to that time Sunday's only union activity in the
yard had consisted of handing out application cards with Lyle's permission
Sometime after the above-related incident, Lyle also reprimanded Best for
having talked to several employees about the Union.
On October 20, Best was summoned to Lyle's office. There, in the presence
of Sweeney, Lyle told Best that lie would have to let him go because work was
slack, and displayed a discharge slip stating "reduction of force" as the reason
for the discharge. Best asked if there was abything wrong with his work. Lyle
assured him that there was not Best then stated that slackness could not be
the reason because the work force was expanding. Lyle then told Best that it
was because of his union activities Best reminded Lyle that lie had suggested
that Best distribute the cards Lyle answered that Works Manager Walters
had directed him to discharge Best because of his union activities. Best pleaded
with Lyle not to discharge film, and offered to take a reduction in status and
pay After some discussion, Lyle tore up the discharge slip and told Best to go
back to work. Best did so. Later in the day, however, Best came to Lyle, iold
him that since Walters had ordered his discharge, he felt that he could not
continue with the respondent under the circumstances and asked Lyle to give'
him the discharge slip Lyle told him to go back to work and told Best that he
would, "take care of it." Best again returned to work Still later in the day,
however, be came to Lyle, again indicated his uneasiness,, and again requested
the discharge slip. This time Lyle told Best to go home and "sleep over it "
On the following morning Best, after reporting for work, went to Lyle,
told him that lie had been unable to sleep the night before, and said that
Lyle "might just as well" give hint the discharge slip Lyle thereupon gave
him a discharge slip, and indicated that he would assign "reduction of force"
as a reason The respondent's records, however, indicate that Best was dis-
charged because his services were unsatisfactory'
What Smith did with these cards is not disclosed He did not return any of them
to Best.
8 Best testified that Lyle wrote "reduction of force" on the slip Another record, which
Best signed when interviewed by one of the respondent's exit interviewers following his
discharge , states that he was unsatisfactory A statement by the respondent's personnel
director, Francis Dunn, indicates that reasons for termination are not ordinarily stated
on the slip given the employee However, Dunn also stated, and Lenderman Sweeney
testified, that Best's slip, which was in the possession of the respondent, gave " unsatis-
factory" as the reason for the discharge This slip was not produced at the hearing,
although its production was requested by counsel for the Board The non-production
may have been an oversight, and Best may have been mistaken in his assei tion as to
what actually was written on the dischaige slip. Best, however, impressed the under-
signed as it geneially credible witness, and the undersigned is of the opinion that, what
ever may have been written on the slip, Lvle indicated to rest that he would assign
reduction of force as the reason for the separation
The testimony of Best and Sunday as to the above events was substantially uncontra-
dicted, except as has been previously indicated, and is credited Leaderman Sweeney,
called by the respondent, testified that he did not hear Lyle tell Best that he had orders
to discharge him. When asked, on cross-examination, what Lyle told rest, Sweeney said
that lie did not recall Lyle, who Is not now employed by the respondent, was not called
as a witness At last reports he was in Mobile, Alabama.
BROWN SHIPBUILDING COMPANY 105
Best testified that the reason he asked to be separated was that he could
not work with the threat of discharge hanging over him From his observa-
tion of Best, and upon consideration of his subsequent actions, hereinafter
related, the undersigned accepts this testimony
Within a few days following his discharge, Best contacted Works Manager
Walters in an effort to secure reinstatement, but was unsuccessful At the
time Best requested reinstatement, the record shows, and the undersigned
finds, the respondent was at the peak of its employment. This condition con-
tinued to exist until the end of 1943. Furthermore, the testimony shows that
Best's job had not been abolished at the time he requested reinstatement
Several days after Best's discharge, Lyle told Sunday that Best had been
discharged at the direction of Works Manager Walters because of his union
activity. Lyle further informed Sunday that the latter had also been "slated
for" discharge, but that his case had been ieconsidered. At about the same
time, Lyle, who had in the meantime written several letters to naval authori-
ties at the shipyard criticizing operations in the yard, was discharged. In
one of these letters Lyle stated he had been ordered to stop union organization
in the yard, "or else".
Following Lyle's discharge, Sweeney became foreman On November 4,
1943, Sweeney discharged Sunday. The respondent's records indicate as the
reason, "reduction in force." According to Sunday's testimony, however,
Sweeney told him he was discharged for union activity and that Sweeney
was assigning reduction in force as the reason in order that Sunday could
get another job elsewhere Sweeney testified that he discharged Sunday be-
cause of a reduction in force, and that Sunday's union activity was not con-
sidered. Sweeney did not, however, deny having made the statements at-
tributed to him by Sunday The undersigned finds Sunday to be a credible
witness and credits his testimony Sunday also attempted to secure rein-
statement shortly following his discharge, but, like Best, was unsuccessful
As in the case of Best, the record shows, and the undersigned finds, that
Sunday's job had not been abolished at the time Sunday requested reinstate-
ment
Concluding findings as to Best and Sunday
As to Best, the respondent contends (1) that lie was not discharged, but
quit voluntarily, and (2) that lie was not reinstated because his services
were unsatisfactory The foregoing facts disclose, however, that Best's dis-
charge,' according to Lyle's statement, was decided upon because of Best's
union activities, his discharge Clip was written out, and he was informed
by Lyle that lie was discharged This action constituted a discrimination
against Best because of his union activities The fact that Best's employment
d'd not immediately terminate as a result of the discrimination is immaterial
L^le's action had such a disquieting effect upon Rest that lie felt unable to
continue working with the threat of discharge hanging over his head The
subsequent termination of his, employment, even though at his own insistence.
was thus a direct consequence of, and would not have occurred but for, Lyle's
discriminatory statements and actions. Best's termination slip indicates that
he was discharged The undersigned finds that Best actually was discharged
It is also found, however, that irrespective of how it is to be characterized.
the termination of Best's emplo}nient was caused by discrimination because
of his union activities.
Works Manager Walters denied that he had given Lyle orders to discharge
686572-46-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Best It is unnecessary to determine whether lie did so or not, since Lyle's
actions are attributable to Best's union activities., In any event, Best was
subsequently denied reinstatement. Walters' testimony was that Best was not
reinstated because he (Walters) was informed, after the discharge, that Best's
work was unsatisfactory and that he did not feel that Best was a "stable
enough" employee. There is no direct testimony, however, to establish that
Best's work was unsatisfactory. Lyle's statements to Best on October 21 indi-
cate the contrary. There is no evidence of any complaints respecting Best's
work. In fact, Leaderman Sweeney testified that Best was "as good [an em-
ployee] as any of the rest * * *." The length of his employment, his
seniority position, his promotions and gage increases indicate that his work
was satisfactory. The undersigned finds no persuasive evidence to support the
assertion that Best's work was not satisfactory. It is therefore found that
Best was discriminatorily denied reinstatement.
With respect to Sunday, Sweeney testified that he was discharged because
of a legitimate reduction of force. In support of this assertion Sweeney testi-
fied that there are now only 18 men employed in the department, whereas
formerly there were around 30. Sweeney's testimony is vague, however, as to
when the reductions occurred. In view of Sweeney's statements to Sunday at
the time of the latter's discharge, the vagueness of Sweeney's testimony as to
when the reductions occurred, and the timing of Sunday's discharge in relation
to that of Best, the undersigned concludes that Sunday was also discrimina-
torily discharged and refused reinstatement.
It is therefore found, upon the whole record, that the respondent discharged
W. D. Best and L. T. Sunday, and thereafter refused to reinstate them because
of their activities on behalf of the Blacksmiths, and that the respondent
thereby discriminated in regard to hire and tenure of employment, and dis-
couraged membership in the Blacksmiths.
B. The respondent's conduct in connection with the 1944 elections
1. The refusal to permit distribution of union literature on the parking lot
(a) The respondent's property
At the peak of its employment, through 1943, the respondent employed 22,500
persons. During 1944, the number of employees gradually declined to 14,500.
At the time of hearing the number of employees was approximately 13,000.
The respondent's two yards, adjacent to each other, are situated on a plot
of land of 150 acres some 15 miles from the city of Houston. The property
fronts partially on a public road. The yards are enclosed by a manproof fence.
Outside the fenced area, however, and opening onto the public road is a section
of company-owned land, part of which is devoted to a parking lot where em-
ployees and others having business at the yards park their vehicles. The lot
is bisected by one private road, and bounded by another, both owned by the
respondent, and through which access is afforded to the yards themselves.
At the entrance to the lot is a hut for the use of company guards who are on
6 Walters testified , however, that prior to Best's discharge Lyle had asked him, without
disclosing the employee 's name , what he should do with an employee who was "not stay-
ing on the job * * *" Walters further testified that Lyle "may have mentioned that
[the employee ] was participating in the distribution of union literature " ; and that Wal-
ters told Lyle that it was unnecessary for Lyle to ask such a question . When Best
sought reinstatement , Walters, according to his testimony, inferred that Best was the
employee Lyle had referred to.
BROWN SHIPBUILDING COMPANY 1059
duty in the lot at all times, and a large sign stating "Brown Shipbuilding
Company, Incorporated-Private Property." During the daytime no restric-
tion is placed on entrance to the lot except for inspection by guards of incom-
ing and outgoing trucks. At night, however. incoming persons are required
to display their badges.
No work is carried on in the parking lot. Other than the guard hut no
buildings are located on the lot. Access to the yards themselves Is through
two openings in the fence, known as gates or clock alleys. Guards are sta-
tioned at these points to restrict entrance to persons having proper credentials.
Between these clock alleys and the parking lot, and also outside the fenced
area, is a small plot of land on which the respondent's Administration Building
is located.
The respondent's premises are situated in an industrial section. The nearest
residential neighborhood is about one-half mile away. Employees live in the
surrounding area at distances from the yards variously estimated at 30 to 50
miles. About 80 percent of the employees are transported to and from their
work in some 3,300 private automobiles. All make use of the parking lot. The
remainder of the employees are transported by busses The terminus of these
busses at the shipyard is on the plot of land, adjacent to the clock alley, on
which the Administration Building is located. The busses make no stops on
the highway immediately outside the respondent's property. Thus, all em
ployees board and leave their transportation wholly on company property.
(b) The no-distribution rule
Since January 1942 the respondent has forbidden the distribution of litera-
ture of any kind on the parking lot. • There is no evidence that this rule was
interpreted or applied to other portions of the respondent's premises. The
purpose of the rule is to prevent littering the yard, to eliminate fire hazards,
and to prevent thefts from automobiles in the lot. The rule has been generally
enforced. However, newsboys are permitted to sell daily newspapers at the
entrances to the clock alleys, and copies of the "Victory Dispatch," a compan.N
newspaper, are distributed weekly at the same point
(c) The prevention of distribution of union literature
Shortly before the Board directed election of August 10, 1944, several rep-
resentatives of the Houston Metal Trades Council , a labor organization with
which some of the unions involved in the election were affiliated , entered the
parking lot. These representatives then proceeded to insert union literature
consisting of one page circulars under the windshield wipers of automobiles
and in the backs of trucks parked there . After about 10 minutes , two of the
respondent 's guards appeared , forbade further distribution , removed some of
the literature , and ordered the representatives to leave . Thereafter , without
attempting to distribute literature at other locations on the respondent 's prop-
erty, these representatives distributed it on the public highway outside the
lot.
On several occasions prior to the Board election of November 10, 1944, rep-
resentatives of the Boilermakers , after entering the lot, were prevented by
company guards from placing union literature in the parked cars.'0
10 The testimony of Clarence Rehl, one of these representatives , however , indicates that
at least so far as distribution of union literature was concerned , enforcement of the rule
was sporadic . Thus Rehl testified that on a number of occasions from July to November
1944 , he distributed such literature among the cars without interference. It Is not clear,
however, whether this was with the knowledge of the respondent.
1.060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Concluding findings as to the no-distribution rule
From the circumstances related above, it is clear, and the undersigned finds,
that the only location for effective distribution of union literature among the
respondent's employees is on the respondent's premises. Since the respondent
imposed no restriction on their entrance to the parking lot, the representatives
who attempted to distribute union literature were lawfully on the premises.
Unless, therefore, a distinction is to be drawn based upon the identity of the
actor, rather than upon the conduct involved, it is doubtful that the status of
the representatives, once lawfully on the premises, would be any different so
far as rights of distribution of union literature'are concerned, than the status
of an employee of the respondent." It is unnecessary, however, to decide that
precise question, or the further question whether, assuming that all distribution
on company premises was denied, the respondent could lawfully have pre-
vented the distribution of union literature on the parking lot.
To what extent an employer can prevent the distribution of union literature
on his premises is dependent upon the circumstances in each case. The appro-
priateness of restrictions may depend at times upon whether reasonable and
adequate avenues of communication are available, and upon the purpose to be
served by the imposition of the restriction. In the instant case no apparent
attempt was made to distribute union literature at the entrances to the clock
alleys, nor is there any evidence of an attempt to secure permission to do so.
The respondent's rule refers of an attempt to secure permission to do so. The
respondent's rule refers to, and the union representatives attempted only,
distribution of literature on the parking lot alone. There is no evidence that
the rule was interpreted to cover distribution at the yard entrances. Indeed, in
view of the reasons advanced by the respondent for. the imposition of the rule,
and.in view of the permissive distribution of daily and company newspapers
at the entrances, such in interpretation would appear to be unwarranted and
discriminatory." In the absence of evidence of. any rule forbidding, or the.
refusal of permission of, distribution of union literature at the entrances to
the clock alleys, the undersigned is of the opinion that the respondent did not
engage in unfair labor practices by prohibiting the distribution of union litera-
ture on the parking lot, and will recommend that that allegation of the
complaint be dismissed.
2. The "Victory Dispatch"
The Board-directed elections previously referred to were held on Friday,
August 10 and Friday, November 10, 1944.
11 See Matter of LeTourneau Company of Georgia, 54 N. L. R. B. 1253, aff'd 324 U. S.
793.
is That the rule is not to be so interpreted may be inferred from the respondent's brief,
in which it states the following :
"The Company newspaper was not distributed to the cars * * * The evidence
shows that the Company permits newsboys to sell daily papers at the entrance to
the clock alleys in order that employees may have an opportunity to buy newspapers
and read them on the way home. The Company papers are stacked at the same
place so that they can be picked up by any employee desiring a copy. They are not
placed on windowshields of cars, or on the back of trucks. There is no evidence
that the Company was ever requested that it permit the distribution of Union litera-
ture at the same place and in the same manner that it permitted the distribution of
its weekly newspaper and the sale of daily newspapers."
"Obviously, the situation is quite different when papers are placed for distribution
at a clock alley, under the eyes of guards who can prevent them from littering the
yard and who can observe the people going and coming, from the distribution of
literature by persons circulating among some 1,400 to 2,000 cars in the night-time."
BROWN SHIPBUILDING COMPANY 1061
On August 5, 1944, and also on the day before each of these elections the
respondent distributed, at the entrances to the clock alleys and at the Admin-
istration building, copies of its newspaper, the "Victory Dispatch," among the
employees. Ordinarily the "Victory Dispatch" is distributed on Saturday.
Both of the papers issued the day before the elections, however, were dis-
tributed on Thursday. All three issues contained articles, cartoons, pictures,
and other matter urging the employees to vote against the unions involved in
the elections.
The assertions in these newspapers were to the effect that unionization was
futile; that wartime regulations had made it impossible for unions to improve
working conditions, wages or other benefits. In addition, the election issue
was posed to the employees as being whether they wished to continue to work
or whether they wished to halt production. Unions and union representatives
were accused of fomenting strikes. The suggestion was made, thinly veiled,
that selection of the unions would inevitably result in the shutting down of
the yards, and cessation of war production. It was intimated that servicemen
were opposed to unions, were embittered against them, and would wreak ven-
geance on employees ; that retaliatory laws against labor would result ; and
that the only results of unionization for the employees would be loss of respect
among the general public, hatred by servicemen, loss of servicemen's lives, and
loss of wages. Union organizers were characterized as irresponsible and
interested only in the power, dues and fees to be amassed. The employees were
reminded of the many benefits conferred upon them by the respondent, and
were urged not to change the beneficent "policy" and satisfactory "teamwork"
under which they were operating for the catastrophic possibilities suggested
by the respondent. Although thus warned of the possible dire consequences
attendant upon self-organization and although told to vote as they pleased,
nowhere in the articles were the employees assured by the respondent that
it would, on its part, regardless of the election results, continue to regard the
employees with the same consideration as before. No assurances were given
that the respondent would accept the election results in good grace; would
continue the beneficent policy heretofore established, would continue to be as
interested in the employees' welfare as before, and would accept their bargain-
ing representative, if chosen, and so far as possible co-operate with it in the
mutual interests of the respondent and the employees.
It is evident from these expressions that the respondent was opposed to the
unions, desired to avoid having to deal with them, and was endeavoring to
influence the employees to vote against the unions by warning that designation
of them as collective bargaining representatives might result in working and
other conditions more onerous than those presently enjoyed. Implicit in the
warnings was the inarticulate threat that if bargaining representatives were
selected, the respondent would cease its efforts to improve the employees'
working conditions and would make no effort to maintain those presently ex-
istent. The question of the legality of these expressions by the respondent is
disposed of at a later point in the report.
3. The discharge of Lloyd M. Chasona
Chason was hired on August 20, 1943, as a welder 2nd class at $1.02 per
hour ; he was thereafter promoted to 1st class and received wage increases,
.13 Except where otherwise indicated , the findings in this subsection are based upon
credible testimony by Chason and employee William Hancock.
1 062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
successively, to $1.10 and $1.20 per hour, all within a period of 58 days.
His work was commended on several occasions by his supervisors.
Chason was a member of Local 731 of the Boilermakers and acted as one
of four union observers at the November election He distributed some union
literature in the yard on his own time and posted several union notices on
bulletin boards in the yard. These activities were not promiscuous, however.
He was discharged on November 15, 1944.
Chason was employed in Yard A. On the morning of November 14, 4 days
after the election, the welders were unable to work because of a shortage of
material. While waiting for more material to arrive Chason secured permission
from Leaderman Davis, his immediate supervisor, to go to the Industrial
Relations Office in Yard B. This office was some 3 or 4 blocks from Chason's
place of work. Also in Yard B, and on the direct route between the Industrial
Relations Office and Chason's place of work, is located a company store. In
front of this store, while on his way back to work from the Industrial Rela-
tions Office, Chason met William Hancock, a fellow welder, who had also
secured permission from Davis to go to Yard B. Hancock and Chason walked
back to the job together. The material not having arrived by the time of
their return, Chason and Hancock asked permission of Davis to go to the first-
aid station in Yard A. for the treatment of some injuries. This permission was
granted, and Hancock and Chason went to the first aid station. Chason re-
turned directly, Hancock later. Later in the day, while they were at work,
Chason and Hancock were told by Davis that he had received a report to the
effect that they had been loitering in Yard B. Davis did not indicate the
source of the report, but said that he had replied that lie had given Chason
and Hancock permission to go to the yard. Apparently nothing further was
said. Chason and Hancock continued working during the remainder of the
day.
On the following morning, November 15, as Chason and Hancock were pre-
paring to begin the day's work, Leaderman Davis called them out of the
machine house, said that he hated to do it but that he had orders from Welding
Superintendent Foster to discharge Chason. Davis then gave Chason a dis-
charge slip on which was stated "Loitering in Yard B." Davis further said
that Hancock was not loitering. Hancock is not a member of any union, al-
though he had belonged to a union when working for a previous employer ,<
Leaderman Davis did not testify. Superintendent Foster testified that he
ordered Chason discharged for violating a rule forbidding A yard employees
to loiter in Yard B. According to Foster, he saw Chason talking with a group
of men in Yard B on the morning of November 14, and he then ordered Davis
to discharge him, although informed by Davis that Chason had permission to
be in the yard. According to Foster, Chason was "entirely off the regular
route" to the Industrial Relations Office. The testimony discloses, however,
that the place where Foster assertedly saw Chason was about 30 feet from the
company store. The length of time he observed Chason was "possibly a minute
or so * * * more or less." No investigation was made by Foster, and
Chason was given no opportunity to explain what he was doing during the
short time Foster assertedly saw him in Yard B.
The summary discharge of Chason under such circumstances is in contrast
with the usual efforts made by the respondent to avoid the loss of experienced
employees because of the manpower shortage."
1* As is more fully discussed hereinafter , applicants for employment with the respond-
ent indicate on their applications whether they are members of a union.
is Thus , for example, exit interviewers interview employees who are separated, en-
deavor to ascertain the cause , and attempt to correct It and persuade the employee to
remain.
BROWN SHIPBUILDING COMPANY 1063
It is not reasonable that in times of acute manpower shortage Foster would
have ordered Chason discharged so arbitrarily upon the basis of the facts
which Foster assertedly observed. Especially is this so when it is considered
that Foster was informed that Chason had permission to be in Yard B In
addition, Chason was not wasting time, since he was unable to work in any
event-a circumstance which Foster either knew or could have ascertained
had he investigated the matter. Chason denied having loitered in Yard B, and
testified that he returned directly from the Industrial Relations Office. He
was gone 20 to 30 minutes-not an unreasonable length of time in view of the
distance involved and the nature of his errand. Davis made no complaint
It is significant that Hancock, who was not a union member, and who ap-
parently had also been reported on -November 14 as loitering in Yard B, was
not discharged. Upon consideration of the above-related circumstances, the
timing of the discharge in relation to the election, the previous discharges of
Best and Sunday, the opposition to the unions manifested in the respondent's
preelection conduct, and upon observation of Foster, the undersigned is unable
to credit the assertion that Chason was discharged for the reason asserted by
Foster, and concludes that he was actually discharged because of his activities
on behalf of the Boilermakers. It is further found that the respondent thereby
discriminated in regard to hire and tenure of employment, and discouraged
membership in the Boilermakers
C. Other inter fereaee, restraint, and coercion
Applicants for employment with the respondent are required to fill out
written applications. Information requested on these forms includes the fol-
lowing: "List and address of organizations to which you belong (trade, pro-
fessional, fraternal, etc.)." Applicants are thus required to disclose their
union affiliations. The respondent asserts that this form was approved by
the United States Navy representatives at the yard There is no evidence,
however, and it does not appear to be contended, that the requirement for
disclosure of union affiliation was either imposed or suggested by representa-
tives of the Navy. The imposition of such requirement by an employer is an
unfair labor practice 16
From the foregoing findings as to discriminations against Best, Sunday, and
Chason, the requirement of disclosure of union affiliation, and from the findings
previously made as to the pre-election statements made by the respondent in
the "Victory Dispatch," it is evident that the pre-election statements were part
of a total program of opposition to self-organization and, by reason of their
relation to the other conduct of the respondent, attained a coercive effect upon
the employees. The undersigned therefore finds that in this context the
respondent, by Lyle's reprimand to Best for the latter's union activity, by
Lyle's warning to Sunday to cease his union activity, by the discriminations
against Best, Sunday, and Chason, by the requirement for disclosure of union
affiliation, and by the statements of the respondent in the "Victory Dispatch,"
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
It is further found that by the statements in the "Victory Dispatch" the re-
spondent interfered with the conduct of the elections and that the Boiler-
makers' election, to which objections were filed, should be set aside.
16 Matter of Merrill -Steven Dry Dock A Repair Company, 49 N. L . B. B. 698.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D The election classifications
Iii the oblections to the election filed by the Boilermakers, it was alleged
that a In ire number of Negro employees had been improperly classified and
were thus denied the right to vote in the election The election unit in which
the Board directed that that election be held is as follows:
All employees generally classified as boilermakers, shipfitters, riveters,
clippers and caulkers, iron hangers inc( handlers, hangers, slabmen,
hydraulic press operators, plate planers, tank testers, punch and shear
operators, their apprentices and helpers, and toolroom attendants and
material checkers servicing the foregoing categories, excluding crane fol-
lowers, and excluding supervisory employees.
An original contention made at the hearing to the eflect that Negro employees
had been classified by the respondent on the basis of racial considerations for
Lite purpose of depriving them of a votce in Ilie election was withdrawn during
the cour,e of the hearing There is no substantial evidence to support the
assertion
At the original repiesentation hearing, the respondent, on the ground that
the Itonrd rtas ♦y-thout jurisdiction, declined to submit a classification pay
roll or to cooperage in attempting to develop the duties of the groups of
employee-, ciainwd by the various unions involved, or to show how they were
classified by the respondent
From the record in the representation hearing, and from the record in the
present case, it appears that at the representation hearing the Boilermakers
was claiming employees within classifications characteristic of its craft juris-
diction, and that the classifications of employees described as comprehended
therein were those generally existent in shipyards These classifications, as
described by the Boilermakers, were accepted by the Board as the election
unit Following the Board's Direction of Election the respondent provided the
Board with a classified pay roll According to the respondent's classifications
thus ascertained. only four groups falling within the election unit were
employed by the respondent These were tank testers. slabmen, shipfitters.
chippers, and caulkers, and helpers and apprentices to these classifications
All employees so classified by the i espondent were afforded tin opportunity to
vote The Boiler makers now contends that a number of groups intended to
be included in the election unit were unable to participate in the election
because they were differently classified by the respondent Principal of these
classifications is that of cleaners and scalers, a group of 300 employees. It is
contended that 200 of these employees, a group large enough to have affected
the results of the election, should have been classified as tank testers or
chippers or caulkers, or helpers to those classifications. The majority of these
employees are colored All are engaged in the cleaning of metal tanks in the
ships There are two types of tanks; one type is painted ; the other is used
to carry oil and is not painted Although done under different supervisors, the
work of the cleaners and scalers is the same in both instances , is apparently
semi-skilled, and is performed with the aid of hand buffers, brushes, and power
tools The cleaners and scalers who prepare tanks for painting number about
100 and are under the supervision of the painting supervisor; the 200 who
prepare unpainted tanks are under the supervision of the mechanical depart-
ment The Boilermakers contend that the latter group should have voted in
the election.
The undersigned is of the opinion that, upon the evidence adduced, the entire
300 should probably have been included in the election unit. The undersigned
BROWN SHIPBUILDING COMPANY 1065
recommends, however, for reason, to be presently indicated, that no disposition
be made of the question on the present state of the record. Many of the
classifications described in the Board's election unit bear no relation to the
respondent's classification system. Thus, iron handlers and hangers are classi-
fied by the respondent as riggers. Riggers, however, voted in the August 1944
election and are presently represented by another union as a result of that
election Other classifications named in the election unit are similarly non-
existent or differently classified by the respondent This confusion in nomen-
clature, unascertainable at the representation hearing because of the failure
of the respondent to assist in the identification of its personnel, has apparently
resulted in an election unit within the intendment neither of the union nor
of the Board"
Other elections among the employees have resulted in the certification of
various labor organizations as bargaining representatives in certain appro-
priate units. Any disposition of the unit problem herein, based on the present
record, may conflict with the claims of some or all of those other organizations
In the undersigned's opinion, the appropriate action, under the circumstances,
is to set aside the election now in issue and to direct a new representation
hearing upon the Boilermakers petition for certification. At such hearing,
a thorough investigation can be made of the respondent's classification system.
the duties of the employees, and their relationship with respect to other appro-
priate units. The undersigned will so recommend
IV THE EFFECT OF THE UNFAIR LABOR DRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act
It has been found that the respondent has discriminated in regard to the
hire and tenure of employment of W D. Best, L T. Sunday, and L. M Chason,
thereby discouraging membership in the Blacksmiths and the Boilermakers
The undersigned will recommend that the respondent offer those employees
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other rights and privileges
It will also be recommended that the respondent make them whole for any
loss of pay, if any, which they suffered as a result of the discrimination, by
payment to each of them of a sum of money equal to the amount which he
would normally have earned as wages from the date of the discrimination to
the date of the offer of reinstatement, less his net earnings 11 during that period.
iv Ordinarily, union representatives are afforded an opportunity to inspect election pay-
rolls prior to elections No evidence was adduced to show that such opportunity was not
afforded in the present case. The objections to the election were, however, timely filed.
i" By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company, 8 N L R B. 440 Monies received for work performed
upon Federal, State , county, municipal or other work-relief projects shall be considered
as earnings . See Republic Steel Corporation v N. L. R . B., 311 U. S. 7.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunday testified at the hearing that he anticipated induction into the armed
forces. In the event that he has been inducted prior to the issuance of this
report, the respondent shall offer Sunday reinstatement upon application after
discharge from the armed forces in accordance with the provisions of the
Selective Service Act. In ascertaining the amount of back pay due Sunday,
if any, any periods of time spent in the armed forces are to be excluded from
the computation. Any back pay due Sunday at the time of induction shall,
however, be paid immediately
It will also be recommended that the respondent cease requiting applicantN
for employment to disclose their union affiliation.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case. the undersigned makes the following.
CONCLUSIONS OF LAW
1. International Brotherhood of Boilermakers; I ron Shipbuilders and Helpers
of America, A. F of L, and Locals 469 and 731 thereof, and Marine Angle
Furnacemen and Forgers #639, International Brotherhood of Blacksmiths,
Drop Forgers and Helpers, A F. of L, are labor organizations within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
W. D. Best, L. T. Sunday, and L. Al. Chason, thereby discouraging membership
in International Brotherhood of Boilermakers, Tron Shipbuilders and Helpers
of America, A. F. of L, Local 731, and in Marine Angle Furnacemen and
Forgers #639, International Brotherhood of Blacksmiths, Drop Forgers and
Helpers, A. F. of L., the respondent has engaged and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act
3. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent has not engaged in unfair labor practices by preventing
the distribution of union literature on its parking lot.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law,
the undersigned recommends that Brown Shipbuilding Company, Inc., Houston,
Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of Boilermakers,
Iron Shipbuilders and Helpers of America. Local 731, A. F. of L, and Marine
Angle Furnacemen and Forgers #639, International Brotherhood of Black-
smiths, Drop Forgers and Helpers, A. F. of L, or any other labor organization
of its employees, by discriminating in regard to hire and tenure of employment,
or any term or condition of employment ;
(b) Requiring applicants for employment to disclose their union affiliation;
(c) In any manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations,
to join or assist the aforesaid or any other labor organizations, to bargain
I3ROWN SHIPBUILDING COMPANY 1067
collectively through representatives of their own choosing , and to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act
(a) Offer to W. I). Best, L . T. Sunday , and L. M Chason immediate and
full reinstatement to their former or substantially equivalent positions with-
out prejudice to their seniority or other rights and privileges,
(b) Make whole W. D. Besf, L. T . Sunday , and L. A i Chalon for any loss
of pay they may have suffered as a result of the discrimination against them.
in the manner provided in the Section entitled "The remedy ," supra;
(c) Post at its shipyards in Harris county, Texas , copies of the notice
attached hereto and marked "Appendix A" Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, shall, after
being duly signed by the respondent 's representative , be posted by the respond-
ent immediately upon receipt thereof, and maintained by it for (60 ) consecutive
days thereafter , in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the
respondent to insure that said notices are not altered , defaced, or covered by
any other material ;
(d) Notify the Regional Director for the Sixteenth Region in writing within
ten (10 ) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply herewith
It is further recommended that the election heretofore held in Case No.
16--R-980 be set aside , and that a new representation hearing be held upon the
petition filed in that case.
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondent committed unfair labor practices by preventing the
distribution of union literature on its parking lot.
It is further recommended that unless on or before ten ( 10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
As provided in Section 33 of Article 11 of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended , effective July 12, 1944,
any party or counsel for the Board may within fifteen ( 15) days from the
date of the entry of the order transferring the case to the Board , pursuant
to Section 32 of Article II of the said Rules and Regulations , file with the
Board, Rochambeau Building , Washington 23, D. C., an original and four
copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report or to any other part of the record or proceeding ( including
rulings upon all motions or objections ) as he relies upon, together with the
original and four copies of a brief in support thereof. Immediately upon the
filing of such statement of exceptions and/or brief, the party or counsel for
the Board filing the same shall serve a copy thereof upon each of the other
parties and shall file a copy with the Regional Director . As further provided
in said Section 33, should any party desire permission to argue orally before
the Board , request therefor must be made in writing to the Board within ten
( 10) days from the date of the order transferring the case to the Board.
Dated June 26, 1945 . CHARLES W SCHryErER,
Trial 1<,xarn inei .
1 068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"APPENDIX A"
NOTICE TO ALI. ErtPLoYEES PURSUANT TO RECOMMENDATIONS OF A
TRIAL EXAMINER
of the National Labor Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist International Brotherhood of Boilermakers, Iron
Shipbuilders and Helpers of America, Locals 469 and 731, A. F of L., or
Marine Angle Furnacemen and Forgers #639, International Brotherhood
of Blacksmiths, Drop Forgers and Helpers, A. F. of L, or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
merit to their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the
discrimination.
W. D. Best
L. T. Sunday
L. M. Chason
We will cease requiring applicants for employment to disclose their union
affiliation.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard
to hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such
labor organization.
BROWN SHIPBUILDING COMPANY, INC.,
Employer.
Dated.... ... ........ By ... ......................................
(Representative ) ( Title)
NOTE : Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the (late hereof, and must
not be altered, defaced, or coveted by any other material