Interstate Steamship Co.

National Labor Relations Board - Board Decisions

Nov 27, 1941

36 N.L.R.B. 1307 (N.L.R.B. 1941)

In the Matter Of INTERSTATE STEAMSHIP COMPANY AND JONES & LAUGIILIN STEEL CORPORATION and NATIONAL MARITIME UNION OF AMERICA (C. I. 0. ) Case No. C-1889.-Decided November 27, 1941 Jurisdiction : water transportation industry. Unfair Labor Practices In. General: parent corporation held to be employer of employees of subsidiary corporation where it controlled labor policies of subsidiary and participated in unfair labor practices. Discrimina tion: refusal to pay bonus for continuous service through shipping season to employees who went on strike during season and were reinstated there- after-strike found to have resulted from employers' refusal to bargain col- lectively. Collective Bargaining. majority established by Board certification; withdrawals from union as result of employers' unfair labor practices held not to affect majority-failure to negotiate in good faith : delaying negotiations ; unlawful restriction on granting of passes; insistence that grievances -aboard ship be presented individually rather than through representatives; insistence upon cash deposit or bond by union to guarantee performance of any contract entered into, demand that individual employment contracts take precedence over col- lective contract; insistence upon written approval of agreement by majority of all employees of a future date; taking final position foreclosing actual bar- gaining on numerous matters in first counterproposal. Remedial Orders: employer ordered to bargain collectively; and to make whole employees for any losses they sultered by its refusal to pay said bonus but not including any payment for the period employees went on strike to date of their reinstatement ' Practice and,Procedure : employers' motion to reopen record to introduce evi- deuce that union no longer represents a majority of employees within appro, priate unit denied since any loss of majority representation occurred as the result of employers' unfair labor practices. no effect given to settlement agree- merit since employer continued to engage in unfair labor practices in contra- vention of Act and settlement agreement. Mr.,Thu.rlow, Smoot, for the Board. Duncan, Leckie, McCreary, Schlitz, cC Hinslea, by Mr. F. L. Leckie, Mr. Lee C. Hinslea and Mr. R. E. Mortimer, of Cleveland, Ohio, for the respondents. Mr. Ralph Roqers, of Cleveland, Ohio, and Mr. Maw Lustig, of New York City, for the Union. Mr. William H. Bartley, of counsel to the Board. 36NLRB.,No 262 1307 1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE Upon an amended charge duly filed on February 19, 1941,l by Na- tional Maritime Union of America (C. I. 0.), herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated February 26, 1941, against Interstate Steamship Company, herein called Interstate, and Jones & Laughlin Steel Cor- poration, herein called Jones & Laughlin, collectively referred to here- in as the respondents, both of Pittsburgh, Pennsylvania, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing were duly served upon the respondents and the Union. With respect to the unfair labor practices the complaint alleged in substance that (1) on December 1, 1939, and on several stated occa- sions thereafter the respondents refused to bargain collectively with the Union although the Union since December 1, 1939, was and con- tinues to be the statutory representative of all the unlicensed seamen, including the chief cooks, on the respondents' four steamships; (2) on or about August 1, 1940, the employees on the four steamships struck because of the unfair labor practices committed by the respondents prior thereto; (3) the strike, which was prolonged by the refusal to bargain and by other acts and conduct of the respondents, was terlni- nated on or about October 22, 1940; (4) after the termination of the strike the respondents refused to pay 38 named employees = the bonus for 1940 which they would have received had they not participated nn the said strike; (5) by the foregoing acts and: by other acts and con- duct the respondents interfered with, restrained, and coerced their employees in the exercise of their rights guaranteed by Section 7 of the Act. On April 1, 1941, the respondents filed answers achnitting in sub- stance the allegations of the complaint as to the interstate nature of their business, but denying that they had engaged in any of the unfair 'The original charge was filed August 12, 1940 O During the hearing counsel for the Boa,d moved to dismiss the allegations of the complaint ,s ith respect to Aloe Kiainer , Oscar Paula, and Eino Ranta, who were among the 38 named employees The motion was granted without objection The 3 nien are listed in Appendix B herein. INTERSTATE STEAMSHIP COMPANY 1309 labor practices alleged in the complaint. Jones & Laughlin averred that it was without knowledge as to whether the bargaining unit alleged in the complaint was appropriate, and as to whether the Union represented a majority of the Interstate employees within an appro- priate unit. Interstate in its answer admitted the appropriateness of the unit alleged in the complaint, and "that at all times since December 1, 1939, the Union has been certified by the National Labor Relations Board as the exclusive representative of said employees," 3 but averred that it does not now believe that the Union still represents the said employees. Pursuant to notice and amended notice, a hearing was held at Cleve- land, Ohio, between April 7 and 12, 1941, inclusive, before Howard Myers, the Trial Examiner duly designated by the Chief Trial Ex- aminer. The Board and the respondents were represented by counsel and the Union by its representative and all participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the Board's case, Interstate moved to dismiss the complaint on the ground that the evidence did not sustain the alle- gations, and Jones & Laughlin moved for dismissal on the same ground and for the additional reason that the evidence failed to show that Jones & Laughlin controlled Interstate's labor policies. Both motions were denied by the Trial Examiner. At the conclusion of the hearing counsel for the respondents renewed the foregoing motions to dismiss the complaint, and the Trial Examiner again denied them. At the close of the hearing counsel for the Board moved to conform the complaint to the proof and counsel for the respondents moved to con- form the respective answers to the proof. The motions were granted without objection. During the course of the hearing the Trial Ex- aminer made rulings on several other motions and on objections to the admission of evidence. The Board has reviewed the rulings•and finds that no prejudicial errors were counmitted. The rulings are hereby affirmed. On April 26, 1941, two stipulations were entered into between coun- sel for the respondents and counsel -for the Board to make certain cor- rections in the transcript of the testimony taken at the hearing, and on April 29, 1941, an order was issued by the Trial Examiner direct- ing that the corrections be made in the transcript in accordance with the stipulations. On April 28, 1941, counsel for the Board made and docketed a motion to make certain additional corrections in the tran- script. On May 3, 1941, the Trial Examiner overruled the respond- ents' objections to this motion and issued an order directing that the 3 See Matter of interstate S teamship Company anti National Elie itime Union of 1 in C, lea (C 1 0 ), 17 N 1, R B 376, 18 N 1, R B 34 1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD corrections be made as prayed for in said motion. On May 5, 1941, the respondents jointly filed a brief. On May 24, 1941, the Trial Examiner filed his Intermediate Report, copies of which were duly served on all the parties, finding that the re- spondents had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and section 2 (6) and (7) of the Act. He recommended that the respondents cease and desist from their unfair labor practices and take certain affirmative action. On July 2, 1941, the respondents applied for an order reopening the record to allow them to introduce evidence in support' of their con- tention that the Union does not at present represent a majority of the employees within the appropriate unit. For the reasons noted below, the application is hereby denied. On June 21, 1941, the respondents jointly filed exceptions to the Intermediate Report, and on July 2, 1941, jointly filed a brief in sup- port of the exceptions. Pursuant to notice duly served upon the parties, a hearing for the purpose of oral argument was held before the Board on July 10, 1941, at Washington, D. C. The respondents and the Union appeared by counsel and presented oral argument. The Board has considered the respondents' exceptions and briefs and, except insofar as the exceptions are consistent with the findings, con- clusions, and order herein, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Jones & Laughlin Steel Corporation , a Pennsylvania corporation, has its principal executive office in Pittsburgh, Pennsylvania. It is engaged in the business of manufacturing iron and steel in plants situated in Pittsburgh and nearby Aliquippa , Pennsylvania , and owns or controls various businesses in other States as well. Approximately 75'per cent of its product manufactured in Pennsylvania is shipped out of the State . During the first 10 months of 1940 its total sales aggre- gated approximately $122,000 ,000.4 Interstate Steamship Company, a West Virginia corporation and a wholly owned subsidiary of Jones & Laughlin Steel Corporation, main- tains a fleet of four steamships ,5 of an average carrying capacity of 1,000 gross tons each , for the transportation of iron ore and^coal on the Great Lakes. It also maintains docks at Ashtabula , Ohio, for the un- 4 Cf N. L. R B. v. Jones d Laughlin Steel Corp , 301 U S 1 c These are the same, boats mentioned in the opinion of the Supreme Court of the United States in N. L R . B. v Jones & Laughlin Steel Corp ., 301 U. S. 1. , INTERSTATE SfPEAMSTHP COMPANY 1311 loading of iron ore from ships. During 1938 the steamships trans- ported approximately 600,000 tons of iron ore from the Sate of Minnesota to ports on the Great Lakes, including Ashtabula, Ohio, and transported 250,000 tons of coal from various ports in the State of Ohio to ports in the States of Wisconsin and Minnesota. The amount of its business in 1940 was approximately the same as in 1938. The respondents admit that they are engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED National Maritime Union of America is a labor organization affili-, ated with the Congress of Industrial Organizations, admitting to membership employees aboard Interstate's four steamships. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain with the Union 1. The appropriate unit In the prior representation prcceedings,e the Board found that all the unlicensed seamen, including the chief cooks, on Interstate's four steamships constituted a unit appropriate for the purposes of collective bargaining. In its answer herein Interstate admitted the appropri- ateness of the above unit. Jones & Laughlin in its answer averred that it was without knowledge as to whether the unit was appropriate, but it introduced no evidence at the hearing tending to show that the aforesaid unit was inappropriate. We find as we did in the representation proceeding, that all the un- licensed seamen; including the chief cooks, aboard Interstate's four ships at all times material herein constituted and that they now con- stitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit insures to the employees of the respondents the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the purposes of the Act. 2. The Union's majority representation Upon the basis of the certification issued by the Board on Decem- ber 1, 1939, in the prior representation proceeding, and upon the entire record, we find that the Union wa's'the,-exclusive representative of the o Matter of Interstate Steamship Company and National Maritime Union of America (C.f.0);17N L. R.'B.376,18N L.R B 34 1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the appropriate unit on and after December 1, 1939. No claim is made and the record does not disclose that the Union had lost its status as exclusive represenative on March 7,1940,S the day on which, as found below, the respondents' unlawful refusal to bargain with the Union began. On July 3, 1941, the respondents filed a motion to reopen the record, in which they claim that the Union no longer is the exclusive representative of the employees in the appropriate unit. But any loss of majority representation which may have been suffered by the Union is the result of the iespondents' unlawful refusal to bargain with the Union and unlawful discrimination against its members, found below, and accordingly cannot be given effect.' We therefore find without merit the respondents' contention and have denied the loot ion to reopen the record based thereon. We find that on December 1, 1939, and at all tinges thereafter the Union was and is the duly designated representative of a majority of the employees in the appropriate unit and that, pursuant to Section 9 (a) of the Act, the Union was at all times after December 1, 1939, and is, the exclusive representative of all employees in the appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment 3. The negotiations As stated above, the Board, on December 1, 1939, certified the Union as exclusive bargaining representative of the employees in the appro- priate unit. On March 7, 1940, the Union wrote a letter to Richard England, Interstate's marine manager, requesting hull to set a date for a conference. On March 26, England replied that because Milton Angloch, Interstate's president and Jones & Laughlin's vice president in charge of transportation and production of raw materials; was on vacation, a meeting could not be arranged until after April 10. On April 19, England wrote to the Union that he and his associates would meet with the Union's representatives on May 2. The meeting was, however, not held until May 8 because Anglocli "was not available" until that day. On May 8, the meeting was held in England's office. The respondents were represented by England, Lee Hinslea, the respondents' attorney, Interstate in its answer admitted that at all times mentioned,-in the complaint the Union was the exclusive representatne of` the emploxees m the appropriate unit Tones S, Laughlin in its answer, merely for want of knowledge, denied that the Union was the exclusive iepresentati e of the emplo%ees in the appropriate unit tot the purposes of collective bargaining 5 Ibid "john J Oatghtoll, et al , etc v L li B , 118 F (2d) 49' (C C A 3) (and the cases theicua cited) affirming on reargunient Matter of John J Oaghto,,, et al, etc and Textile Wo,Aeis Organ,nng Comm ittee (C 1 O.), 20 N L It 1'. 301 .INTERSTATE STEAMSHIP COMPANY 1313 and F. W. Blank, the personnel manager of Jones & Laughlin. The Union was represented by Ralph Rogers and Charles Mbar, its field representative and agent, respectively. Thereafter, and until Novem- ber 19, five conferences were held between the Union and the respond- ents ' representatives during which a number of proposals of the Union as to collective barvaini ng and three proposed contracts submitted by the Union were discussed. At the May 8 nmeeting, the Union submitted a proposed contract, somme item, of which were discussed, but no agreement as to any of these items was reached, except as to a clause in reference to the ftnni- ggation of the ships by the respondents. Hinslea, who was spokesman for the respondents, agreed to some items of the proposed contract "in principle" but, not in the form submitted. According to Rogers, Hinslea asked during this conference, "Well, you do not expect this Company to sign an agreement with a Union like yours, do you?" and stated that the Union was irresponsible and "had a, lot of trouble with other shipowners with whom" the Union had contracts. Hinslea denied that lie made the statement or asked the question. Rogers also -testified that most of the time at this conference, which lasted about 21/, hours, was consumed by Hinslea in pointing out to the union rep- resentatives alleged difficulties that other shipowners had had with the Union over the interpretations the Union had placed on contracts Rogers testified further that Hinslea constantly discussed at some length inconsegnential matters, such as whether a porter who had voluntarily scrubbed his room after hours would be entitled to ove.-- tune pay and wvlhether, if the contract were silent as to the kind of soap the respondents were to supply to seamen and the seamen re- quested scented soap instead of that which was supplied to theni, the respondents' refusal to provide such soap would be a breach of the contract . Hinslea admitted'that he 'discussed the soap and porter questions and the other matters referred to by Rogers, but denied that they were either inconsequential or extraneous. Hinslea niaintained that it was necessary for hum to discuss these matters fully so that in case a contract was entered into by his clients and the Union, the same difficulties would not arise which had arisen with other sh ipowners who had contracts with the Union. We find, as did the Trial Examnier, that Hinslea's denial should be rejected, that Rogers'version of what Hinslea said on those occasions is substantially in accord with the-facts; afid that Hinslea delved nito inconsequential matters in order, to prolong the negotiations in an effort to prove to the employees that the Union was accomplishing nothing for them. Because of Hinslea's actions in this regard Rogers "appealed to Mr. Blank to please see if lie could not get Mr. Hinslea to sit down and try to negotiate with us, and not bring up a lot of stuff 43311 8-4 2-%on iG--84 1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which was not being discussed .. [because] it didn't deal with Jones & Laughlin Company nor the Interstate Steamship Company." -Blank refused to interrupt Hinslea and replied that he [Blank] was "up here to find out what is what, and to try and find out what the -score is, and make a report." Because Blank had to catch a plane, the meeting concluded with the understanding that, England was to notify Rogers when lie and his colleagues would meet again with the Un ion. After the Union had made two requests of the respondents for a further conference, a second meeting was held in England's office on ,June 5 and was attended by the same parties who were present at the -previous meeting. The Union submitted another contract which was similar in all respects to the one submitted by it on May 8, except that the Union now requested a wage increase of $10 more per month per .employee than it had requested in the May 8 contract. Each clause of the proposed contract was discussed separately at this meeting but -no agreement was reached on any of the important clauses. Hinslea told Rogers and Abar that the respondents would not agree to issue passes to the Union's representatives to board the boats except under special circumstances, and then only-if the union representa- tives were accompanied by one of the respond' nts' officials. The re- •spondents maintained that the issuance of the passes was to be within Iiiterstatels sole discretion. Hinslea further advised the union rep- resentatives that the respondents would not recognize any ship com- mittees; that if any seaman wanted to present a grievance while on board ship, he had to do so personally, and not through any ship com- mittee; that in his [1-linslea's] opinion a ship committee was "a com- munistic idea"; and that the respondents would not tolerate com- -munism. Hinslea also stated at this meeting that the contract had to provide that each party thereto was either to post a $10,000 surety bond ,or deposit $10,000 in a Cleveland bank, in order to insure faithful performance of the contract. On June 21, Rogers telephoned England for a further appointment -to discuss the proposed contract. England admitted that he in- formed Rogers "that Blank was making a trip to the mines in the Northwest, and Mr. Hinslea was leaving next week for Duluth, and following their return we proposed to have a conference in Pitts- "burgh, after that we would be ready to confer further with him." On July 10, not having heard from the respondents, Rogers again -telephoned England. This time England informed him that the counterproposals which had been prepared by England, Blank, and Hinslea were awaiting the approval of Angloch, who was then on an inspection trip;, and that as soon as Angloch returned and approved INTERSTATE STEAMSHIP COMPANY 1315 the proposals, the respondents would again meet with the union representatives. During June and July the members of the Union inquired of Rogers, Abar, and other officials of the Union as to the results of their conferences with the respondents. When the Union's officials told the members that the respondents were not bargaining in good faith and were "stalling," a strike vole was taken by the crews of 3 of the boats. On August 2, after the strike vote had been taken, approximately 25 of the 28 members of the crew of the Steamship B. F. Jones struck. On August 7, approximately 10 of the 28 mem- bers of the crew of the Steamship James Laughlin and 2 of the 24 members of the crew of the Steamship Thomas Walters struck. The strike 10 took place at Great Lake ports where the boats were docked and was terminated by the Union on either August 23 or 27, 1940.11 During the strike, the Union filed charges with the Board alleging that Interstate had failed and refused to bargain with it as the representative of the employees in the appropriate unit. On October 22, an agreement, which received the approval of the Board's Regional Director, -,w as entered into between Interstate and the Union. The-- agreement proyidedl in part that: (1) Interstate would establish a preferential hiring list consisting of the strikers who had not already been reinstated; (2) Interstate would reinstate these employees as soon as jobs were available but without their 1940 bonus; (3) Inter- state, upon request; was to "bargain collectively in good faith" with the Union as the exclusive representative of the employees in the appropriate unit with respect to wages and working conditions; (4) Interstate was to post the usual cease and desist notice; and (5) "when the Regional Director [was] satisfied that the provisions" of the agreement had been carried out, the Union was to be permitted to withdraw the aforesaid charges. Prior to this agreement, Interstate had already reinstated, but without bonus, all striking employees who desired to return, but in accordance with the agreement it prepared a preferential hiring list of any others who might desire reinstate- ment. The record does not reveal whether or not the cease and desist notice was posted. What action the Regional Director took under the agreement is not affirmatively disclosed by the record, but the original charges have not been withdrawn. 10 The respondents contend that the action of the workers in leaving their ships cannot properly be termed a, strike, appaiently basing their contention upon the fact that the Union did not notify the respondents that a strike had been called The record shows that regular union procedure was followed and that the national organizer of the Union directed that the strike vote be taken. 11 The respondents maintain' that the strike terminated on August 23 ; the Union de- clared that it was terminated on August 27 Since for the purpose of this decision the date when the strike terminated is not material, we make no finding with respect thereto except-that said termination occurred sometime between August 23 and 27, inclusive 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the bargaining , there were the following liegota- tlous : On November 4 and 6, 1940 . Hays Jones , a union representa- tive, met with Hlnslea and England in the latter's office . Nothing was agreed upon by the parties at either meeting . On November 19, I3inslea, England , Rogers, and Jones met in England's office at which time the Union submitted another , proposed agreement . Although the Union deleted from this latest agreement the clauses which the respondents had specifically objected to in the previous contracts in regard to wages, passes, ship committees , and the presentation of grievances by a nvone other than the person aggrieved , the contract was not acceptable to the respondents . Hinslea informed Rogers at the November 19 meeting that he wanted, instead of eliminating from the contract all reference to passes , ship committees , and the manner of presentation of grievances , to refer to those matters in the contract "in the negative form." Be said that he wanted the contract to read that no passes should be issued to the union officials except nuclei- certain circumstances , that no slip committees were to function , and that no grievances were to be presented except by the aggrieved person. After discussing this third proposal at length, the parties concluded the meeting with the understanding that they would meet again in England's office on December 3.1= Pursuant to a telephone call by England to Rogers on December :1, the meeting scheduled for that day was not held instead, Eng- land transmitted a letter that day to the Union enclosing the respon- dent's counterproposals which had been drafted by Hinslea. The letter prepared jointly by England and Hinslea , stated that these proposals were "drafted after consideration of the contract you [the Union] submitted to us [the respondents '] on November 19. The great part of the clauses which we have suggested that must be in- corporated in any proposed agreement have been submitted to you verbally at our many conferences . . . " The letter closes with tlne following pararaphZ-- We might say. however, in closing, that the Company feels that all of these clauses must be in any agreement that they would con- sider. Among the proposals submitted by the respondents as clauses that "must be in any agreement" were the following 19 Hmslea first testified that another conference was held on November 25, but later admitted that he was not sate that any such meeting had taken place In view of Rogers' omphatic denial that there was such a meeting and the fact that Hmslea omitted any mention of such a meeting in a letter of January 22. 1941, to the Board's Regional Dnector in which Hmslea summed up what had taken place between the respondent and the Union, we find that no meeting was held on November 25) ' • The pat ties disagree as to whether the respondents or the Union undertook to call the other patty for a meeting after the De^-embei 3 conference was cancelled We need not resolve this conflict INTER STATE SfrEAbMSHIP COMPANY 1317 The discharge of any nian shall be without recourse except the men still have the right to make any claims for breach of the shipping articles , which during the life of this contract will be the controlling contract of employment and the shipping articles shall take precedence over this contract . In any conflict between the shipping articles and this contract , the shipping articles shall prevail. The granting of passes shall only be made under circumstances arising out of a grievance which the management considers im- portant enough to allow a representative of the Union to go aboard the ship and attempt to adjust it, but the importance of the grievance is up to the management. * * * * * * * At no tulle during the life of this agreement shall the Union be represented by any comituttee on board ship chosen from the unlicensed personnel, nor shall it have any individual member representing them in taking up grievances or complaints of the other members with the licensed officers or management. If any grievance, dispute or complaint arises it should be dealt with as follows : A matt having complaint, dispute or grievance shall take it tip with the head of his department and failing to agree to obtain satisfaction, then he can write to his Union representa- tive, who in turn may take it up with the manager of the vessels at the Company's Cleveland office. Any member of the crew attempting to act as a representative, or any members of the crew attempting to act as a committee, shall be subject to dis- charge without recourse. Any agreement shall be subject to the approval of a majority of the men employed by the Company as of May 1, 1941. In other words, any agreement must be submitted to them and a majority of them acquiesce to the same in writing and then the agreement will be entered into. The shipping ,iiticles shall be the sole contract of employment but in any event employment of the unlicensed personnel shall be deemed to be at an end upon the vessel completing her season of navigation and after the lay up in that particular department of the ship. The wage scale to apply during the life of this agreement shall be based upon the freight rate per ton of iron ore in effect at the beginning of each season The wage scale paid during the season of 1940 was on the basis of 800 per ton for the iron ore, while the vessel actually, received 700 However, if the ore rate remains the same in 1941 or 1942 as it was in 1940,0the wage scale shall be decreased approximately 12%. * * * * * * * 1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the life of this agreement there shall be no bonuses or extra gratuities of any kind, but only the regular wage will be paid. In order to insure the faithful performance of this contract the Company and Union agree that each shall post a surety bond with a reputable surety company licensed to do business in the state of Ohio, each bond in the amount of $10,000.00, the Company bond to run to the benefit of the Union and the Union bond to the benefit of the Company, or in the alternative, either party deposit under an escrow agreement with a bank in Cleveland agreeable to the other party the cash stun of $10,000.00. In the event of any breach,of contract on the part of either the Union or Company and damages of any nature,are claimed, either party has the right to proceed against the bonding company or the deposit, if the matter is not adjusted amicably. After receiving the December 3 letter and the memorandum of counterproposals therein enclosed , Rogers did not seek further meet- ings with the respondents and no more meetings were held. Rogers testified that he understood the respondents' position to be, as stated in the letter, that any contract agreed on would have to contain the clauses set forth in Hinslea 's memorandum ; and that the Union "could not possibly include those things in any proposed contract" and felt that further negotiations would be fruitless as long as the respondents insisted on such clauses . We cannot accept the respondents ' conten- tion that the letter of December 3 was a mere clarification of their initial bargaining position. The letter winch accompanied the coun- terproposal contained the flat statement, "We might say, however, in closing, that the Company feels that all of these clauses must be in any agreement that they would consider." In oral argument and in their brief the respondents contended that this meant that there must be a clause on each subject but did not mean that the clause could not be changed as to specific content. We cannot accept such a strained in- terpretation of a statement clear on its face. We find that the respond- ents were taking a final position from which they did not intend to recede. Although Hinslea and England testified that they did not intend that the memorandum should represent the respondents' final position, and that they expected the Union to negotiate further, the plain meaning of the December 3 letter, in the light of "the preceding discussions, is, as stated in the letter, that "all of these clauses must be in any agreement" that the respondents "would consider." The Union, aware of the fact that the respondents had been insisting upon such clauses throughout the negotiations, reasonably concluded that the respondents meant what they said iii the December 3 letter, and INTERSTATE STEAMSHIP COMPANY 13191 4. Concluding findings were taking a final position on these matters, knowing that the ship- ping season was about to end. The facts set forth above reveal that the Union's first attempt on• March 7 to arrange a bargaining conference with the respondents after the Board had certified it did not succeed until May 8, 2 months later. This delay was caused by the respondent's. When the confer- ence did take place, the Union was confronted with Hinslea's hostile attitude, as evidence by his anti-union statements and his time-wasting discussion of inconsequential matters. When the conference endedf with little or nothing accomplished, it was because Blank had to leave town. Then, despite two requests by the Union, the respondents did not meet with the Union again until June 5. The Union then came forward with another proposed contract, only to be met with the respondents' insistence that grievances be presented by employees indi- vidually and not through representatives ; that union representatives would- not-be granted passes, to board ships-except under special 'cir- cumstances, with the respondents as sole judges of when such passes would be issued; and that the Union must post a surety bond or $10,000' in cash. Following this meeting, despite the Union's request for fur- ther conferences and the respondents' promises, no meeting had been held by August 2 and 7, when the Union went on strike. Since the shipping season lasted only from April 8 to December 19,4 the Union had good cause to consider that the fruitless negotiations from March 7 to August 7 indicated clearly that the respondents were "stalling" in the hope that nothing would be accomplished before the close of the shipping season, when the employment of the present crew members would be at an end. We find that by their dilatory tactics,- hostile attitude,'e unlawful insistence that the granting of passes should be within their own uncontrolled discretion,11 insistence that grievances aboard ship be presented individually rather than through repre- 14Althongh the shipping season Maned among the four boats , the recoil shows that the first employees where hired April 8 and that December 19 was the last date for which wages were paid to any clew mnembei See Matter of Atlas Mills, Inc and Textile House Wobers Union No 2269, United Textile Workeis of Ame,iea, 3 N L R B 10 10 Cf . A' L. R . B v. George P. Pilling cf Sons Co., 119 F ( 2d) 32 (C. C. A. 3) 17 Cf N. L R. B A Cities Service Oil Company , 122 F (2d) 149 (C C A 2) , Matter of Weyerhaeuser Timber Company, Clemons Branch and International Woodworkers of America, Local No 3-2, affiliated with the C I. 0, 35 N . L. R B.,,No. 175. 18 Cf N I. It B v National Licoi ice Co . 309 U S 350 "'Matter of Scripto Manufactio ing Company and International Union Alaminuaa Worb- ers of America, affiliated with the C. 1 0, 36 N L R B., No. 85 ; and see Matter of Jasper Blackbion Products Corporation and District No 9, International Association of Mfa- chinists, etc , 21 N. L R B 1240 , wherein the Board stated that "the respondent, in refus- ,mg to execute a signed agreement , binding upon both parties, unless the Union posted it bond , sought to prefix the fulfillment of its statutory obligation with it condition not' within the piovisiois ; and manifestly inconsistent with the policy of the Act 1320 DECISIONS OF NATIONAL LABOR RELAT1oNS BOARD sentatives,'8 and insistence upon a cash deposit or bond," the l e- spondents refused to bargain collectively and interfered with the rights guaranteed in Section 7 of the Act, and that the respondents' illegal acts caused the strike on August 2 and 7. The settlement agreement entered into on October 22, 1940, was the next important event in the negotiations. The respondents contend that in accordance with the aforesaid agreement they reinstated- all the strikers who desired to be reemployed, that they bargained in good faith with the Union, and that therefore the Board may not properly consider any unfair labor practices engaged in by the re-, spondents prior to that date. We cannot concur in this contention. As found below, the respondents, following the settlement agreement Of October 22, 1940, discriminated against strikers and continued to refuse to bargain collectively in good faith with the Union. By such conduct, the respondents violated the settlement agreement, and the cease and desist notice which was to be posted pursuant thereto.20 After three meetings in November, at the last of which the Union presented another proposed contract winch omitted many provisions which the respondents had previously refused to agree to, the respond- ents cancelled the proposed meeting on December 3 and instead came forward with their "counter-proposal." This was not a bona fide counterproposal, but was rather a continuation of the respondents' efforts to make the collective bargaining process sterile and meaning- less. Thus, the respondents again insisted that grievances aboard ship be presented individually rather than through representatives, that the issuance of passes for union representatives be restricted at the uncontrolled caprice of the respondents, and that the Union post a bond or cash deposit. As we have found above, such demands consti- tuted a refusal to bargain collectively in good faith. In addition, although the record discloses no business or other lawful reason there- for, the "counter-proposal" included a provision that payment of the bonus, which had been a long-established practice of the respondents, would be discontinued if a contract was entered into. The respond- ents' imposition, without explanation, of this financial loss to the employees as a condition of entering into the collective bargaining Footnote 19-Continued The fact that the iespondents in the instant case were willing to post a snnilai bond does not alter the fact that the requirement is inconsistent with the policy of the Act Any other holding would mean that the right of employees to collective bargaining through repiesentatives of their own choosing and of those representatncs to execute agreements in connection with such bargaining would be contingent upon their ability to post a bond or a suthciently lai ge sum of money to satisfy the employ er's demands The Act contemplates no such handicap on the employees 20Matter of Picker X-Ray Corporation and International dssociatzon of Machinists. 12 N L R B. 1384, Matter of Hope Webbing Company and Textile Workers Organizzinq Coin mittee, etc, 14 N L R B 55, Hatter of Harry L. Half and International Ladies' Garment Workers' Union. 16 N L. R 13 667; Matter of Phillips Petroleum Company and Oil Workers International Union, etc, 23 N. L. it. B 741 INTERSTATE STEAMSHIP COMPANY 1321 agreement seriously reflects upon the respondents' good faith.21 Also introduced in the "counter-proposal" was a demand that individual contracts-i. e., the shipping articles-take precedence over the col- lective contract with the Union.22 This insistence upon subordinat- ing the collective contract to individual contracts with respect to terms and conditions of employment was clearly unlawfUl .2-' The respondents also insisted that any agreement must be ratified in writing by a, -majority 'of all men employed on May 1, 1941, and thus attempted to place restraints upon and to weaken the duly designated representative for collective bargaining.21 By all of these new demands, the respondents clearly continued in their unlawful refusal to bargain collectively. Moreover, in its first "counter-proposal's following the settlement agreement, the respondents took a final position which foreclosed further bargaining in respect to terms and conditions of employment. This, in itself, was a refusal to bargain collectively. We find that the respondents have, on and at all times since March 7, 1940, refused to bargain collectively with the Union as the exclu- sive representative of their employees in the appropriate emit, in respect to rates of pay, wages, hours of employment, and other condi- tions of employment, and have thereby interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Discriminationwith, regard to terms and conditions of employment For approximately 20 years, with the exception of 3 years during the depression, Interstate has paid a bonus to its unlicensed seamen at the end of each shipping season for continuous service. The bonus zi Cf Matter of Singes btannfactaiing Conipany and United E lectrical , Radio and Machine Worleis of einieiica Local No 917, affiliated wroth the Congress of Industrial Organizations, 24 N L R B 444, enf'd as mod. in 119 F (2d) 131 (C C. A 7), cert denies 61 S Ct 1119 See tho'e,sections'01'the counterproposal dealing with the shipping iiiticles These articles coyer wages, hour, working conditions, and presentation of grievances in the Great Lakes, Interstate draws up its articles winch aie signed by each employee on each pas day zo Cf N L R B v National Licoi ice Co , 309 U S 350 21 The iespondents contend that such ratification was included in then proposal because they undeistood Rogers to say that this was the usual practice of the Union ltogeis denied having said this, but adnntted that he told Ilinslea that the Union usually sub- mitted its contracts to the members for appioval We credit Rogers' te'tiniony in this regard his statement diners gieatl3 from the requirement of the iespondents, since the lattei required approval in wiiting, retciied to all "inen" rather than all union mem- beis, and also required that the (late be May 1, 1941, which was in the shipping season of the next Sear In .iny event. the Union had made no such suggestion conceining ratification, and it was not the privilege of the respondents to dictate to the Union what procedure it must follow in contracting for the employees whom the Board had certified that it represented we find that the iespondents' demand was an attempt to undeimi ne the Union's authoiity and also to delay the signing of it contract until the next season, 5 months distant Cf N L R B v lteniington Rand, inc. 04 Fed (2d) 862 W. C _A 2) 1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has been paid as an inducement to the employees to remain with the ships throughout the season and consequently has not been payable unless .the seaman finishes the season and has had continuous service from a designated date. On August 15, 1940, Interstate posted a notice stating that a bonus of $10 for each 30 clays would be paid to each employee who finished the season and had continuous service from August 15 or prior thereto.2i As stated above, on August 2 and 7, 1940, approximately 40 of the respondents' employees went on strike because of the respondents' tefusal to bargain collectively with the Union. On August 23 or 27, 1940,25 the Union terminated the strike. Thereafter a number of the strikers applied for reinstatement. The respondents offered rein- statement to all strikers who desired it and reemployed them as rap- idly as jobs were available. The complaint alleges that the respond- ents unlawfully deprived 38 strikers of their bonus for the 1940 season. During the hearing, the Trial Examiner dismissed the com- plaint with respect to 3 of these strikers, named in Appendix B, upon motion of the Board attorney. In his intermediate Report, the Trial Examiner dismissed the complaint with respect to 22 more of the strikers, also named in Appendix B. No exception has been taken to these dismissals. Having considered the record, we concur therein. The complaint will be dismissed with respect to such strikers. The remaining striker named in Appendix B, Thomas WTestfall, returned to work following the strike but quit Interstate's employment before the close of the season. He was therefore not entitled to the bonus, and accordingly, we shall also dismiss the complaint with respect to him. There remain for consideration 12 strikers, named in Appen- dix A, in respect to whom the Trial Examiner sustained the complaint. The respondents have taken exception to this action. The 12 striking employees, named in Appendix A, were reinstated by the respondents after the strike and remained at work until the -close of the shipping season. Nevertheless, they did not receive any bonus. The respondents rely on the settlement agreement of October 22, 1940, as a sufficient reason for not paying the bonus to the 12 strikers. The agreement provided, among other things, for placement upon a preferential hiring list and ultimate reinstatement of all strikers who had not already been employed, "except that such reinstatement shall not operate to restore to these employees their 1940 bonus . . . But the 12 employees listed in Appendix A had already been rem- 25 or two notices had been posted eailier in the season , but the deadline was later fixed as August 15 so that seamen employed subsequent to the prior notices would be eligible for bonuses 2G See footnote 11, supra INTERSTATE STEAMSHIP COMPANY 1323 .stated before Oct6ber 22, the date of this agreement. The respondents contend that the quoted provision should be interpreted to mean that none of the employees reinstated after the termination of the strike on August 23 or 27 were to receive a bonus. We find this contention to be without merit and that the provision has no bearing on the 12 employees in Appendix A. Furthermore, even though this provision were applicable to the 12 employees in question, since we have found that the respondents continued to refuse to bargain collectively with the Union after October 22, in contravention of the Act and the set- tlement agreement, we would give no effect to it.ZT The respondents contend also that the 12 strikers reinstated after August 27 were not paid a bonus because they did not have continuous service from. August 15, 1940, and Were not therefore within the terms of the bonus notice. Except for the fact that they Were on strike and were therefore not actually at work from August 15 to August 23 or 27, these 12 employees fulfilled the conditions. of the bonus announce- ment. The question, therefore, is whether their going on strike oper- ated to break their continuous service and to deprive them of a bonus. Since they ceased Work as a consequence of the respondents' unfair labor practices, the strikers remained employees and, upon the termina- tion of the strike, Were entitled to reinstatement without prejudice to seniority, continuity of employment, and other rights and privileges, as though they had not been absent from ii-ork. Therefore, their ab- sence because of the strike did not constitute a break in the continuity ,of their service, and the respondents were not warranted in depriving the strikers of their bonus.nn We find that the respondents, by thus withholdin a bonus from the 12 employees named in Appendix A, discriminated in regard to their terms and conditions of employment, thereby discouraging member- ship in a labor organization and interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in 'Section 7 of the Act. See fool note 20, supra See Ropieblic Steel Coipoiation v 1, L If B , 114 F (2d) 820 (C C A 3) In that case the employer had a vacation plan according to which employees were entitled to vaca- tions with pay or vacation pay on a basis graduated according to length of service In construing its decree enforcing the Board's order piosiding for reinstatement, upon appli- cation, of stokers "without prejudice to their seniority or other rights or privileges" the court stated "We think it was the intention of the Board, as it was of this Court, to provide that upon reinstatement the striking employees were to be treated in all matters involving seniority and continuity of employment as though they had not been absent front work It follows that the reinstated strikers are entitled to the benefits of Republic's vacation plan tor the year in which they are reinstated and all subsequent years upon it basis of continuity of service computed as though they had been actually at work during the entire period from May 25, 1937 [the date of the strike] to the date of the reinstatement." 1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE RESPONSIBILITY OF JONES & LAUGIILIN FOR THE UNFAIR LABOR PRACTICES As set forth above, Interstate is a wholly owned subsidiary of Jones Laughlin. Officers and directors of the parent corporation comprise virtually all the officers and directors of the subsidiary. Angloch, the president of Interstate, receives no salary from Interstate but receives his compensation from Jones & Laughlin. The time spent by him on Interstate business is, however, charged to and paid by it to the parent corporation. Angloch and the comptroller of the parent corporation, who is also comptroller of Interstate, allocate the amount due from Interstate for the time spent by Angloch on Interstate business. Inter- state's main executive offices are located in the Jones & Laughlin Build- ing in Pittsburgh, Pennsylvania. Jones & Laughlin has a traffic manager located in Interstate's Cleveland office. The respondents conceded that they would not confer with the Union with respect to negotiating a contract until Blank, the personnel man- ager of Jones&-Laughlin, was-present. They also conceded that the first meeting with the Union was terminated because Blank had to leave town. In a letter written on August 19, 1940, to the Board's Regional Director, England stated that at the first two meetings with the Union, the "company was represented by the writer and Mr. Blank from the home office, and Mr. Hinslea, our attorney." 20 He further stated in the letter : "As you know, our company is a subsidiary of Jones & Laughlin Steel Corporation, and with our principal offices located in Pittsburgh, it has been difficult to carry on speedy negotiations for the reason that we must submit the contracts to Pittsburgh for study, and we had to submit our counterproposal. We are in exactly the same position as your -local office, inasmuch as you have your main office in Waslhington." In the same letter, England stated that he told Rogers on June 21 that he could not then fix a date for a conference with the Union because "Mr. Blank was making a trip to the mines in the Northwest, and Mr. Hinslea was leaving the next week for Duluth, and following their return we proposed to have a conference in Pittsburgh, and after that we would be ready to confer further with him." England testified that he invited Blank to be present at these meet- ings "because he is the man who has been doing this kind of work, and he is familiar with it, and I thought he ought to have this information." Blank was not, however, a mere spectator. He took part in the dis- cussions and stated that he was present in order "to find out what is what, and try to find what the score is, and make a report." England admitted that he received from Blank suggested counterproposals to be. zs l Imslea appeared in these proceedings as attorney for both respondents. INTERSTATE STEAMSHIP COMPANY 1325 submitted by loin, to the Union and that he corresponded with Blank in regard to them. We find, as did the Trial Examiner, that during the period herein involved, Jones & Laughlin controlled the labor policies of Interstate, especially as they concerned the commission of the unfair labor,prac- tices above set forth, and that it participated in those unfair labor practices. We find further that Jones & Laughlin, as well as Interstate, is the employer of the employees herein involved within the meaning of Section 2 (2) and (3) of the Act. V. THE EFFECT OF 'rHE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Sections III and IV above, occurring in connection with their operations described in Sec- tion 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. VI. THE REMEDY Having found that the respondents have engaged in unfair labor practices, we shall order that they cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. Having found that the respondents have refused to bargain collec- tively with the Union, we shall order that the respondents, upon re- quest, bargain collectively with the Union as the exclusive representa- tive of all the employees in the appropriate unit in respect to rates of pay, wages, hours of employment, and other conditions of employment. Having found that the respondents discriminated in regard to the terms and conditions of employment of the persons named in Appendix A-by refusing to pay to them the bonus to which they were entitled, we shall order that the respondents make them whole for any losses they may have suffered by reason of the respondents' refusal to pay the said bonus, by payment to each of them of a sum of money equal to the amount he would normally have received as a bonus had the respond- ents not discriminated against him, but not including any payment for the period from the date the employee went on strike to the date on -which lie was reinstated. Our finding is not predicated on the viola- tion of Section 8 (3) alone, but also, and independently, on our finding that the respondents engaged in unfair labor practices which caused the strike. The payment of the bonus is necessary to remedy the effects of such unfair labor practices.-"' 30 Cf Republic Steel Corporation v. N. L R. B, 114 F. ( 2d) 820 (C. C. A. 3), construing 107 F_(2d) 472. 1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire. record, the Board makes the following: - CONCLUSIONS OF LAW 1. National Maritime Union of America , affiliated with the Congress of Industrial Organizations , is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. Interstate Steamship Company and Jones Sz- Laughlin Steel Cor- poration are the employers of the employees involved hei-eni within the meaning of Section 2 (2) and (3 ) of the Act. 3. By discriminating in regard to the terms and conditions of em- ployment of the persons named in Appendix A and thereby discour- aging membership in a labor organization , the respondents have en- gaged in and are engaging in unfair labor practices , within the meaning of Section 8 (3) of the Act. 4. The unlicensed seamen on the respondents' four steanslups, in- cluding the chief cooks , have at all times maternal herein constituted and they now constitute it unit appropriate for the purposes of collec- tive bargaining within the nneaning'of Section 9 (b) of the Act. 5. National Maritime Union of America , was on December 1. 1939, and at all times material herein has been and now is the exclusive rep - resentative of all the employees in such Unit for the purposes of collec- tive bargaining within the meaning of Section 9 (a) of'the Act. 6. By refusing on and at all times after May 8 , 1940 , to ba rgain collec- tively with National Maritime Union of America as the exclusive repre- sentative of the employees in the appropriate unit, the respondents have engaged in and are engaging in unfair labor pract ices within the meaning of Section 8 (5) of the Act. 7. By interfering nithi, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce , within the meaning of Section 2 ( 6) and (7) of the Act. 9. The respondents have not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to the persons listed in Appendix B. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act. the ,National Labor Relations Board hereby orders that the respond- ents, their officers, agents, successors, and assigns, shall: 1\TE'RSTATE STEAMSHIP COMPANY 1327 1. Cease and desist from: (a) Discouraging membership in National Maritime Union of America, affiliated with the Congress of Industrial Organizations, or any other labor organization of their employees by discriminating in regard to the hire and tenure of employment or any-terms or conditions of employment of their employees; (b) Refusing to ba.rgain•collectively with_National Maritime Union of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all their unlicensed seamen on their four steamships, including the chief cooks; (c) In any manner interfering with, restraining, or coercing their employees iii the exercise of the right, to self-organization, to form, join, -or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargannng or other mutual aid or protection as guaranteed uu Section 7 of the National Labor Rela- tions Act. 2. Take the follow lug affirmative action which the Board finds will effectuate the policies of the National Labor Relations Act: (a) Make whole the persons mined in Appendix A attached hereto fur any losses which they may leave suffered by reason of the respond- ents' (iscrinnuatirni in regard to their terms and conditions of employ- inent, by payment to each of them of a suns of money equal to that which lie normally would have received as a bonus for the 1940 season had the respondents not discriminated against them, but not including ally payment for the period from the elate the employee went on strike to the date on which be wwas reinstated (b) Upon request bargain collectively with National Maritmne Union of America, affiliated with the Congress of Industrial Organiza- tions, as the exclusive representative of the unlicensed seamen on the respondents' four steamships, including the chief cooks, in respect to rates of pay, wages, hours of employment, and other conditions of employment ; (c) Post innnedi itely m conspicuous places on the respondents' four steamships and maintain for a period of sixty (60) consecutive days from the date of posting, notices to their employees stating that the respondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1 (a), (b), and (c) ; that they will take the affirmative action set forth in paragraphs 2 (a) and (b) that the respondents' employees are free to become or remain members of National Maritime Union of America, affiliated with the Congress of Industrial Organizations; and that the respondents will not dis- erimninate against any employee because of his membership or activity in said organization; 1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify the Regional Director for the Eighth Region in writing within ten- (10) clays from the date of this Order what steps the respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed in so far as it alleges that the respondents engaged in unfair labor practices within the meaning of Section, 8 (3) ofr:the Actwith respect to the persons listed in Appendix B. Mn. GERARD D. REILLY took no part in the consideration of the above Decision and Order. APPENDIX A Peter Anderson V. Ciesielski W. Green Werner Hakala T. Hedin Raynioncl Hill Edwin Alexon L. Armstrong J. Ascanazy Charles Barrett E. DeRosa Stanley Dzieciuch Clarence Holman Tom Hooper A. Karkkainen Oscar Karna Moe Kramer Henry Lilja John Mazur E. Johnson Richard Leikas Herbert McLean Arthur Raisanen J. Stamatopolous R. Ylitalo APPENDIX B R. McDaniel R. McKinnon D3wey McMahon Jack McMillin James Murray P. Pakela 11. Pallutch Donald Paykis R. Pierce Thurman Price. Eino Ranta Thomas Westfall W. Weston