Isthmian Steamship Co.

National Labor Relations Board - Board Decisions

Apr 4, 1940

22 N.L.R.B. 689 (N.L.R.B. 1940)

In the Matter of IsTHMIAN STEAMSHIP COMPANY and NATIONAL
MARITIME UNION OF AMERICA
Case No. C-969.-Decided April 4, 1940
Water Transportation Industry-Interference, Restraint , and Coercion-Con-
tract: valid preferential hiring agreement providing for preference of employment
as vacancies occur-Dzscrimznation : ( S S. Knoxville City ) charges of , dismissed,
where employees in labor organization went on strike , not caused or prolonged
by unfair labor practices , and were replaced under valid preferential hiring
contract with rival organization ; ( S S. Steel Scientist ) charges of, sustained ;
discharge of members of labor organization because of non-membership in rival
organization ; valid preferential hiring agreement with rival organization not
applicable to kind of employment involved-Employee Status • ( S. S. Steel
Scientist ) wage payment and commencement of voyage , as affecting-Strike:
( S S. Knoxville City ) not caused or prolonged by unfair labor practices ; (S S.
Steel Scientist ) not found to exist-Employer : responsibility of, for ejection of
crew from S. S. Steel Scientist by members of rival union-Reinstatement
Ordered: ( S S Steel Scientist ) for 10 employees discriminated against; not
ordered for two employees , one not desiring continuance of proceeding as to him,
one not desiring reinstatement-Back Pay: (S . S. Steel Scientist ) awarded 10 em-
ployees discriminated against, including reaso-able value of board and mainte-
nance; as to one employee , not desiring reinstatement , awarded, but limited by
date on which lie testified.
Messrs. Will Maslow, and Albert Ornstein, for the Board.
Mr. Kenneth B. Halstead, by Mr. George Demmneny, and Kirlin,
Campbell, Hickox, Keating & McGranra, by Mr. A. V. Chlerbonnier,
all of New York City, for the respondent.
Mr. William L. Standard, by Mr. Max Lustig, of New York City.
for the N. M. U.
M11r. Charlton Ogbum, by Messrs. Arthur E. Reyman, and John E.
Pelegrine, all of New York City, for the I. S. U.
Mr. Harry A. Sellery, Jr., of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by National Maritime
Union of America, herein called the N. M. U., the National Labor
Relations Board, herein called the Board, by the Regional Director for
22 N. L. R. B., No. 33.
689
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Second Region ( New York City ), issued its complaint dated
November 9 , 1937, against Isthmian Steamship Company, New York
City, herein called the respondent , alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat . 449, herein
called the Act. Copies of the complaint , accompanied by notice of
hearing, were duly served upon the respondent , the N. M. U., and
International Seamen's Union of America , herein called the I. S. U.
In respect to the unfair labor practices , the complaint , as amended
during the course of the hearing , alleged in substance : ( 1) that the
respondent in May 1937 forced Joseph Knight, an employee on the
Knoxville City, to pay $11 to the Master of that vessel for a mem-
bership in the I. S. U. despite Knight's protest that he had designated
a rival faction therein as his collective bargaining representative; in
April 1937 refused the request of the Knoxville City crew that agents
of a particular faction within the I. S. U. be permitted to visit and
confer with the Memphis City crew; in July 1937 at Portland, Maine,
refused the request of the Knoxville City crew that agents of the
N. M. U. be permitted to board that vessel to confer with the N. M. U.
members of the crew ; and since April 1937 had warned its employees
not to join or remain members of a particular faction within the
I. S. U. and of the N. Al. U. and threatened them with discharge if
they did so; (2) that the respondent on July 28, 1937, at Portland,
Maine, discriminatorily discharged and has since refused to reinstate,
20 named employees in the crew of the Knoxville City; and (3) that
the respondent on August 13, 1937, at Baltimore , Maryland , discrimi-
natorily discharged and has since refused to reinstate 16 named
employees in the crew of the Steel Scientist.
On or about November 26, 1937, the respondent filed an answer
which, as amended during the course of the hearing , denied the alle-
gations to the complaint in respect to the unfair labor practices. The
answer affirmatively alleged ( 1) that on July 28, 1937, at Portland,
Maine, the Knoxville City crew refused to accept its wages, but did
so after the local police authorities intervened , and that some members
of the Knoxville City crew have since been reinstated ; and (2) that
about August 13, 1937, at Baltimore , Maryland , the 16 named em-
ployees in the crew of the Steel Scientist engaged in a sit-down strike,
and thereafter left that vessel and were paid off.
Pursuant to the notice and amended notices , a hearing was held in
New York City on December 21 and 22, 1937 , before Alvin M. Douglas,
the Trial Examiner duly designated by the Board, and on May 24
and June 8 , 9, and 10, 1938 , before Mapes Davidson , the Trial Ex-
aminer duly designated by the Board. The respondent and the
N. M. U. were represented by counsel and participated in the hearing.
ISTHMIAN STEAMSHIP COMPANY 691
At the opening of the hearing on December 21, 1937, the I. S. U.
moved to intervene in the proceeding. As soon as this motion had
been reduced to writing, as provided in Article II, Section 19, of
National Labor Relations Board Rules and Regulations=Series 1,
as amended, it was granted, on December 22, 1937. On that date and
on May 24, 1938, the I. S. U. was represented by counsel and par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties.
During the course of the hearing the Trial Examiners granted the
Board's motions to conform the pleadings to the proof, to dismiss the
allegations in the complaint of interference, restraint, and coercion
with respect to Knight, and to dismiss the complaint as to Barth
Solomon, a member of the Steel Scientist crew. At the close of the
Board's case and at the close of the hearing the respondent made
several, motions to dismiss the complaint. These motions were denied.
During the course of the hearing the Trial Examiners made several
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed the rulings of the Trial Examiners
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On October 11, 1938, Trial Examiner Davidson filed his Interme-
diate Report on the entire proceeding, including that portion which
had been heard by Trial Examiner Douglas. Copies of the Inter-
mediate Report were duly served upon the parties. Trial Examiner
Davidson found that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He
recommended that the respondent cease and desist from interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, and, affirmatively, reinstate
with back pay the members of the Steel Scientist and Knoxville City
crews remaining in the -complaint, except Paul Hoffman and -Peter
Walsh.
Exceptions to the Intermediate Report were filed by the respondent
on October 25, 1938, and by the I. S. U. on October 27, 1938. Pur-
suant to notice, a hearing for the purpose of oral argument was held
before the Board in Washington, D. C., on December 13, 1938. The
respondent and the N. M. U. were represented by counsel and par-
ticipated in the argument)
At the oral argument the respondent submitted an affidavit exe-
cuted by A. P. Jump, who had been a witness for the respondent on
May 24, 1938,- making certain corrections of and.additions to the
'At the oral argument the t espondent orally offered a typographical correction to its
exceptions. The correction is hereby allowed
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transcript of his testimony. On October 25, 1939, the Board issued
a rule, copies of which were duly served upon the parties, to show
cause by November 5, 1939, why such affidavit should not be incor-
porated in the record. No objections to such rule having been filed,
the Board on November 7, 1939, made an order, copies of which were
duly served upon the parties, so incorporating Jump's affidavit.2
On November 22, 1939, the respondent submitted a brief and on
November 29, 1939, the N. M. U. and the I. S. U. each submitted a
brief. The Board has considered the exceptions and the briefs and
finds the exceptions without merit, except as they are in accordance
with the Decision and Order herein.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Isthmian Steamship Company is a Delaware corporation having
an office and place of business in New York City. It owns and oper-
ates 27 vessels for the transportation of freight in interstate and
foreign commerce.
II. THE ORGANIZATIONS INVOLVED
National Maritime Union of America is a labor organization affil-
iated with the Committee for Industrial Organization.3 It admits
to membership the respondent's unlicensed personnel.
International Seamen's Union of America is a labor organization
affiliated with the American Federation of Labor. It admits to mem-
bership the respondent's unlicensed personnel.
III. THE UNFAIR LABOR PRACTICES
A. S. S. Knoxville City
About July 27, 1937, the Knoxville City, one of the respondent's
vessels, docked at- Portland, Maine, after a voyage from the West
Coast, to discharge a part of her cargo. Joseph Kane and Walter P.
Jermack, the N. M. U. delegates at Portland, went aboard the vessel
and arranged for the transfer of the unlicensed personnel of the crew
from the I. S. U. to the N. M. U. While Jermack was arranging for
this transfer, he secured from the unlicensed personnel a list of its
grievances. About 8 o'clock the next morning, July 28, 1937, Jermack,
accompanied by the N. M. U. ship's. delegates, requested the Master,
2 By typographical error both the rule to show cause and the order refer to him as
"A T Jump"
3Now the Congress of Industrial Organizations.
ISTHMIAN STEAMSHIP COMPANY 693
Captain George P. Shanahan, to dispose of such grievances. Shanahan
declined to do so at that time on the ground that it would be necessary
first for him to secure the consent of his superiors in New York City.
He stated that he would consult them by telephone.
When a ship is in port discharging cargo the unlicensed personnel in
the deck crew work only from 8 a. in. to 4 p. in. As was customary,
Boatswain John M. Olsen had received from the first officer his orders
for the work to be performed by the deck crew that day. Olsen
instructed the deck crew accordingly, and it started to work at 8 a. m.
At the rest period at 10 a. in., known as "coffee time," "Tex" Henderson,
the N. M. U. ship's delegate for the deck crew, notified Olsen that the
deck crew intended to strike until its grievances had been settled.
The deck crew thereupon went on strike.
About noon Shanahan told Jermack he could not then recognize
Jermack as the collective bargaining representative of the N. M. U.
members in the deck crew, that he would confer again with his
superiors in New York City, and that the strikers in the deck crew
would be required to leave the ship. Jermack notified the ship's un-
licensed personnel, who were at luncheon, of what Shanahan had said.
The unlicensed personnel in the engine-room crew decided to, and
thereupon did, join the strike of the deck crew. Since the steam valve
furnishing power for the operation of the deck winches was closed
by the deck engineer, one of the deck crew, no cargo was discharged
from the ship that afternoon.
During the afternoon Shanahan notified the strikers that they would
be paid off, but none of them went to receive their pay. They remained
on board the vessel until about 7 or 8 o'clock that evening, when a
group of policemen came to the dock at which the Knoxville City was
tied up, and ordered the strikers to leave the ship. They left the vessel
peaceably and on the following morning began to picket the dock and
continued to do so until the Knoxville City' sailed from Portland.
Early the next day, July 29, 1937, the recruits of the I. S. U. arrived
at the !dock. They went aboard the Knoxville City and were lured
to fill the positions of the strikers. The discharge of the ship's cargo,
which had been suspended at noon on July 28, 1937, was thereupon
resumed. On July 30, 1937, the respondent paid off the strikers before
a United States Shipping Commissioner and the ship's articles were
closed. Subsequently, the Knoxville City sailed from Portland.
Robert E. Moore, a fireman on the Knoxville City, and one of the
strikers whose place `had been filled, applied to the respondent in
New York City for employment sometime before December 31, 1937,
.the date upon which the respondent's contract with the I. S. U. expired.
The respondent's personnel department asked him what his union
283033-41-vol. 22-45
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliation was. When he stated that he was a N. M. U. member, the
respondent stated that it could not employ him.
. Upon this record the respondent has not discriminated against any
member of the crew of the Knoxville City. The deck and engine-room
crews went on a strike not caused or prolonged by unfair labor prac-
tices. The respondent did not engage in unfair labor practices by
filling their positions to continue the work of the vesse1.4 Moreover,
the respondent and the I. S. U. had a valid preferential hiring con-
tract at the time of the strike and of Moore's application for employ-
ment.5 Consequently, the respondent acted lawfully in filling the
vacancies created by the strike with members of the I. S. U. and in
refusing to employ Moore because he was not a member of the
I. S. U.e
We find that the respondent has not discriminated in regard to the
hire and tenure of employment of the Knoxville City crew, thereby
discouraging membership in a labor organization.
B. S. S. Steel Scientist
Late in July or early in August 1937 the Steel Scientist, another of
the respondent's vessels, returned to New York City from a voyage to
the Orient. At New York City, the articles were closed. Thereafter
the vessel proceeded to Norfolk, Virginia, to discharge a part of her
cargo. Early in August 1937, while the Steel Scientist was at Norfolk,
almost all the unlicensed members of the crew transferred their union
affiliation from the I. S.' U. to the N. M. U. The vessel then proceeded
to Baltimore, Maryland, arriving on August 12, 1937, for the discharge
of the remainder of her cargo and for the fumigation of the ship.
On August 12, 1937, Edward W. Flynn, a lieutenant in the respond-
ent's watchman service and the respondent's ranking officer in Balti-
more, notified John S. Reese, an I. S. U. delegate at Baltimore, that a
new fireman was needed aboard the vessel to replace one who was
leaving the ship. The new fireman was scheduled to go on duty for a
4 National Labor Relations Board v Mackay Radio d Telegraph Co., 304 U S 333
(1938), enf'g Matter of Mackay Radio d Telegraph Company, etc. and American Radio
Telegraphists' Association, San Francisco Local No. 3, 1 N. L R. B. 201; Matter of Calmar
Steamship Corporation and National Maritime Union of America, 18 N L R B 1.
Article II, Section 1, of the contract provided:
as vacancies occur, members of the International Seamen's Union of America
shall be given preference of employment, if they can satisfactorily qualify to
fill the respective positions ; provided, however, that this Section shall not be construed
to require the discharge of any employee who may not desire to Join the Union, or
to apply to prompt reshipment, or absence due to illness or accident
From the terms of the contract as a whole, it appears that the various ships were not
treated by the parties as separate collective bargaining units.
,
6 Cf. Matter of Ansley Radio Corporation and Local 1221 United Electrical h Radio
Workers of America, C. 1 0, 18 N L R B 1028 and cases cited.
4
ISTHMIAN STEAMSHIP COMPANY 695
watch beginning at midnight and ending at 8 a. m. on August 13, 1937.
The I. S. U. sent a fireman as requested. Early in the morning of
August 13, 1937, this fireman came to the I. S. U. hiring hall. He told
Reese that the crew, upon learning that he was an I. S. U. member,
had refused to permit him to work.
Reese notified Flynn of this incident. He reminded Flynn of the
above-mentioned preferential employment clause and warned him that
the I. S. U. expected the respondent to comply with the contract.
Flynn thereupon telephoned for advice to A. P. Jump, the respondent's
director of labor relations, stationed in New York City. Jump told
Flynn, "Well, you had better get hold of Mr. Vanderstaay and Mr. Bly
J. S. U. agents). Report the matter to them and let them make an
investigation to find out what the trouble is." Jump also instructed
Flynn to notify him when the ship sailed. The Steel Scientist was
scheduled to sail for Portland, Maine, at 6 o'clock that evening.
Following the conversation between Flynn and Jump, Garritt Van-
derstaay informed Flynn that if the respondent did not discharge the
N. M. U. members of the crew, the I. S. U. would call a strike on each
of the respondents vessels as it arrived at Baltimore. Flynn asked
Vanderstaay if the I. S. U. could supply a new crew for the Steel
Scientist. The latter assured Flynn that the I. S. U. could and would
do so. He further stated that the N. M. U. members of the crew must
leave the ship, that Vanderstaay would remove the N. M. U. members
of the crew from the vessel, and that Vanderstaay did not wish Flynn
to do anything in this connection.
Flynn reported this information in a second telephone call to Jump.
On this occasion Jump insisted that the Steel Scientist sail from Bal-
timore at the scheduled hour of 6 p. m. With reference to the I. S. U.
plan to replace the N. M. U. members of the crew, Jump stated :
All right; let the Union (the I. S. U.) handle the thing, but
we have got to get the ship going . . . that is a question for the
I. S. U. to handle; we are going to live up to our agreement.
Now, the next move is up to the I. S. U. It is up to them. The
agreement is very clear and we have got to live up to it and that
is all there is to it.'
While these conferences were in progress, the ship was being fumi-
gated. The crew had left the ship with instructions to report on the
dock early in the afternoon. When the crew assembled about 2 p. m.
it was not yet possible to go on board. The members of the crew re-
mained on the dock for some time and then were notified that the re-
spondent was "paying off" the crew. This pay-off was in accordance
with the respondent's practice for a crew of a vessel at Baltimore on
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a "harbor pay roll." 7 When the pay-off had been completed, the
crew was instructed to go aboard the ship and did so.
Several members of the crew went to their quarters to rearrange
their personal effects which had been disarranged in connection with
the fumigation of the vessel. About 10 minutes after the crew had
gone aboard, the ship's officers instructed the members of the crew to
assemble at the No. 3 hatch, directly forward of the ship's bridge.
When the crew had assembled it was addressed by Captain Marcosson,
the Master of the Steel Scientist. Reese stood on the bridge near Mar-
cosson during his talk.
Marcosson said, "Fellows, I have had word from New York that if
you fellows don't change your N. M. U. (membership) books back to
I. S. U. books, that you will be ejected from the ship." He went on
to state that a majority of the crew had sailed with him for some time,
that he had been very well satisfied with their work and would regret
their departure, but that he had to follow the orders which he had re-
ceived from the respondent. Harry Shadle, an oiler and an N. M. U.
member, asked Marcosson, "Do I understand, Captain, that you are
Firing us for being N. M. U. men?" Marcosson replied, "Yes, that is
what it looks-like, son."
Thereupon, Marcosson introduced Reese, saying, "This man repre-
sents the International Seamen's Union, and he will take you back in
the I. S. U. if you exchange your N. M. U. books back again." Reese
told the assembled crew, "You fellows can change your books back. I
have books right here with me. There won't be any argument, and we
will give you your I. S. U. book, and you can sail with your I. S. U.
books." He told the men that if they did so immediately, they could
exchange their N. M. U. books for I. S. U. books without charge.
Reese then made a speech in favor of his proposal. No crew member
accepted his proposal. At the close of the meeting, Shadle repeated
his above-quoted question and Marcosson reiterated that anyone in the
crew who remained a member of the N. M. U. would be discharged.
The crew returned then to the after hatch adjacent to its quarters.
After a brief and informal discussion the members of the crew decided
not to reaffiliate with the I. S. U. They received no orders to work
from the ship's officers and did no work. They had not been ordered
"'Harbor pay roll" is a term used by the respondent to designate the pay roll for a
ship engaged in coastwise shipping . The Steel Setentist clew had been on a harbor pay
roll since the ship's arrival at New York City when a crew is placed on a harbor pay
roll , it is the respondent 's practice to pay the crew about every 7 days . Moreover, with-
out regard to the general practice of weekly payments on a harbor pay roll , it is also
the respondent's practice to pay the crew at Baltimore . Flynn testified, "The men were
paid off in the usual way."
ISTHMIAN STEAMSHIP COMPANY 697
by the ship's officers to leave the vessel. The members of the crew re-
mained in and about their quarters until about 10 p. in. No dinner
was served to the crew that evening.
During the afternoon the I. S. U. business delegates in Baltimore
had stationed an I. S. U. crew and a group of about 12 or 14 volun-
teers from among the I. S. U. membership near the Steel Scientist.
During the afternoon Flynn told Lawrence Roache, a pier supervisor
for the respondent, that he had heard from an I. S. U. delegate "some-
thing about delegates going to pull a crew out" and that the I. S. U.
was "going to pull the men off" because they belonged to the
N. M. U.
About 10 p. m. the group of I. S. U. volunteers boarded the Steel
Scientist, pushing aside the respondent's watchman at the gangplank,
and proceeded to the crew's quarters.8 These I. S. U. volunteers or-
dered the N. M. U. crew members to leave the ship immediately. The
N. M. U. men did not offer any resistance to this order. They gathered
their personal effects and left the ship. No ship's officer appeared on
deck or on the dock during the ejection of the N. M. U. members of
the crew. The only unlicensed members of the crew who were per-
mitted to remain on board were two I. S. U. members who had not
joined the N. M. U. at Norfolk.
Thereafter, the I. S. U. crew which had been assembled on or near
the dock came aboard, accompanied by Flynn and Roache. This
I. S. U. crew was hired by the respondent after it was on board the
Steel Scientist. About 2 a. m. on August 14, 1937, the ship sailed for
Portland, Maine.
As noted above, the respondent and the I. S. U. had entered into a
contract giving members of that labor organization "preference of em-
ployment." ° By its terms the contract requires such preference only
"as vacancies occur." 1° Upon this record, it is clear that the positions
of the N. M. U. members of the Steel Scientist crew had not become
8 It does not appear that this watchman offered any resistance to the I. S. U volunteers.
8 See footnote 5, supra.
18 Jump testified as follows :
Q. Did you consider at that time [August 13, 1937, that] if the I. S U. wanted the
jobs you would have to discharge the N. M. U. men?
A. Well, how could we live up to the agreement otherwise?
... Yes.
Jump's ambiguous and unsupported interpretation of the contract cannot vary the plain
meaning of the preference clause. In National Labor Relations Board v. Waterman
Steamship Corporation, 60 Sup. Ct. 493, rev'g 103 F. (2d) 157 (C. C. A. 5), and enf'g Mat-
ter of Waterman Steamship Corporation and National Maritime Union of America, etc., 7
N. L. It. B. 237, the Supreme Court of the United States, construing this very provision,
held as follows : The contract with the I. S. U. "which only provided preferential treatment
of the I. S. U. in filling vacancies, did not require the Company to discharge the N. M. U.
men from these ships."
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacant at the time these men were ejected from the vessel on August
13, 1937.11
The crew was paid "in the usual way." Then it was ordered to go
on board as if in the customary manner the ship was about to sail
from Baltimore. Marcosson stated publicly that as far as he was
concerned the crew was satisfactory.
Pascuale Parlapiano, a steward, who had been at sea since December
20, 1935, in the employ of two other maritime shipping companies
in addition to the respondent, testified that the custom in the maritime
shipping industry in hiring the unlicensed members of a crew is to
"hire you on, and they keep you on the ship until they found out you
are not competent to stay on" or until the seaman voluntarily 'resigns.
Harold Norby, a deck oiler, who had been at sea for 10 years, testi-
fied that he had been continuously employed by the respondent since
June 15, 1935, and that even when the ship upon which he was em-
ployed was periodically drydocked his full pay continued. Flynn, a
witness for the respondent, testified that when one of the respondent's
vessels arrives in Baltimore, its general custom is to retain the crew 12
There is nothing in the record to show that the N. M. U. members
of the Steel Scientist crew engaged in a sit-down or in any other kind
of strike, or that they engaged in any action endangering the safety
of the ship.
We find that the N. M. U. members of the crew remained employees
within the meaning of Section 2 (3) of the Act 13 and that no vacancies
had occurred in their positions.
We find that by their ejection the, respondent discharged the
N. M. U. crew members. Jump instructed Flynn, the respondent's
ranking officer in Baltimore, to "let the Union handle the thing."
Although Flynn had advance knowledge of the I. S. U. plan to eject
the N. M. U. members of the crew, neither he nor the ship's officers
11 That in the maritime shipping industry the employment of satisfactory members of a
crew is customarily continuous and has no relation to the payment of wages to a crew
or the commencement of a new voyage and that no vacancies occur in such cases except
when the crew members are discharged for cause or voluntarily resign, has been found
in several cases For example, National Labor Relations Board v. Waterman Steamship
Corporation, 309 U S 206, rev'g 103 F (2d) 157 (C C. A 5), and enf 'g Matter of
Waterman Steamship Corporation and National Maritime Union o f America, etc., 7 N L.
R B 237; Matter of South Atlantic Steamship Company, etc and National Maritime
Union of America, 12 N. L R. B 1367; Matter of The Texas Company, Marine Division
and National Maritime Union , Poi t Arthur Branch, 19 N L R B 835
12 Witnesses for the I S U. testified that vacancies occur when a crew is paid off and
a ship begins a "new voyage" and that a new voyage began when the Steel Scientist
prepared to sail for Portland . It is clear from Flynn 's testimony alone that this was not
the case in so far as the respondent is concerned.
13 Section 2 (3) of the Act is as follows :
The term "employee" shall include . . . any individual whose work has ceased
as a consequence of, or in connection with any current labor dispute or because of any
unfair labor practice . . .
ISTHMIAN STEAMSHIP COMPANY '699
took action to prevent the execution of this plan. Acting in accordance
with Jump's orders, they permitted the I. S. U. volunteers to board the
ship and eject the N. M. U. crew members. Thereafter, the respondent
gave the positions of the ejected men to members of the ejecting
union. The respondent was responsible for the ejection and such
ejection was tantamount to a discharge.
Captain Marcosson's notice to the N. M. U. men that they would be
.discharged if they refused to reafliliate with the I. S. U., their ejec-
tion upon their refusal so to do and their replacement by members of
the ejecting union, the retention of the two members of the original
crew who remained affiliated with the I. S. U., and the other facts
hereinabove mentioned, demonstrate that the respondent discharged
the N. M. U. men discriminatorily because of their membership in that
labor organization. Even though induced by the I. S. U.,14 such
discrimination was unlawful because it was not required bythe con-
tact between the respondent and the I. S. U. or by any valid closed-shop
contract within the meaning of the proviso to Section 8 (3).15
We find that the respondent, by, discharging the N. M: U. members
of the crew of the Steel Scientist at Baltimore, Maryland, on August
13, 1937, discriminated against them in regard to their hire and tenure
of employment, thereby encouraging membership in the I. S. U. and
discouraging membership in the N. M. U., and that by the above-
described conduct the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III B, above,
occurring in connection with the operations of the respondent de-
scribed 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.
u National Labor Relations Board v. Star Publishing Co., 97 F . ( 2d) 465 (C. C A. 9),
enf'g Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82,
4 N L. R. B. 498.
" The proviso to Section 8 (3) of the Act is as follows
Provided, That nothing in this Act . . . shall preclude an employer from making
an agreement with a labor organization ( not established , maintained , or assisted
by any action defined in this Act as an unfair labor practice ) to require as a condi-
tion of employment membership therein, if such labor organization is the representa-
tive of the employees as provided in Section 9 (a), in the appropriate collective
bargaining unit covered by such agreement when made
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order that it cease and desist therefrom, and that
it take certain affirmative action which will effectuate the policies
of the Act.
. We have found that the respondent discriminated unlawfully in
regard to the N. M. U. members of the Steel Scientist crew. Since
Peter Walsh, one of these persons, does not desire this proceeding
continued as to him, we will not order the respondent to reinstate
him or award him back pay. Since Marx Kaplan, another of these
persons, testified that he does not desire reinstatement, we will not
order his reinstatement and we will not award him back pay for the
period subsequent to December 22, 1937, the date upon which he
testified.
With respect to the remaining employees discriminated against,
listed in Appendix A, we will order the respondent to offer them
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges. All, or such number as may be necessary, of
employees hired after August 13, 1937, who occupy the former posi-
tions of the employees listed in Appendix A or substantially equiva-
lent positions shall be dismissed, if necessary to provide employment
for those to be offered and who accept reinstatement. If thereupon
there is not sufficient employment immediately available for the
remaining employees, including those to be offered reinstatement, all
available positions shall be distributed among such remaining em-
ployees in accordance with the respondent's usual method of reducing
its force, without discrimination against any employee because of his
union affiliation or activities, following a system of seniority to such
extent as has heretofore been applied in the conduct of the respond-
ent's business. Those employees remaining after such distribution,
for whom no employment is immediately available, shall be placed
upon a preferential list prepared in accordance with the principles
set forth in the previous sentence, and shall thereafter, in accordance
with such list, be offered employment in their former or substantially
equivalent positions, as such employment becomes available and
before other persons are hired for such work.
We will also order the respondent to make whole the employees
listed in Appendix A for any loss of pay they have suffered by reason
of their respective discharges by payment to each of them of a sum
equal to that which he would normally have earned as wages from the
ISTHMIAN STEAMSHIP COMPANY 701
date of his discharge to the date of the offer of reinstatement, less
his net earnings 16 during said period.'7
The record shows that while in the employ of the respondent the
unlicensed personnel in the Steel Scientist crew received, in addition to
their monetary wages, maintenance on shipboard. Accordingly, we
shall order that the reasonable value of such maintenance on ship-
board during the period for which we will award back pay be included
in the monetary compensation to be paid by the respondent to Marx
Kaplan and each of the persons listed in Appendix A.
We will dismiss the complaint in so far as it alleges that the re-
spondent interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 8 (1) of the Act with re-
spect to the Knoxville City and the Memphis City, and in so far as it
alleges that the respondent discriminatorily discharged and refused
to reinstate the N. M. U. members of the Knoxville City crew.
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. National Maritime Union of America and International Sea-
men's Union of America are labor organizations, within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Peter Walsh, Marx Kaplan, and the persons listed in Appendix
"By "net earnings" is meant earnings less expenses , such as transportation , room, and
board, incurred by an employee in connection with obtaining work and working elsewhere
than for the respondent , which would not have been incurred but for his unlawful dis-
charge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union , Local 9590, 8 N. L. R . B 440 . Monies received
for work performed upon Federal , State, county , municipal , or other work-relief projects
are not considered as earnings , but, as provided below, in the Order, shall be deducted
from the sum due the employee , and the amount thereof shall be paid over to the appro-
priate fiscal agency of the Federal, State, county , municipal , or other government or
governments which supplied the funds for the said work-relief projects.
170f the 13 persons listed in Appendix A, herein called the charging employees, 10 did
not testify. During the course of the hearing , Trial Examiner Davidson ruled that in
the event he found that any employee named in the complaint had been discriminatorily
discharged and recommended that such employee be reinstated , he would not recommend
that the employee also receive back pay unless the employee had testified at the bearing
Counsel for the Board and the N M. U. excepted to this ruling . In his Intermediate
Report Trial Examiner Davidson found that the charging employees , among others, had
been discriminatorily discharged . He recommended that they be reinstated with back pay,
without regard to his previous ruling limiting back pay to the charging employees who had
testified The respondent excepted to his recommendation that the charging employees
who had not testified be reinstated with back pay.
The Board, at the oral argument , gave the respondent leave to file with the Board a
written statement of the respondent 's position with respect to the holding of a further
hearing on the issue of back pay for persons who did not testify . On December 15, 1938,
the respondent filed a written statement that it was relying on the record already made
and was not requesting a further hearing Under these circumstances , the Board finds
that its back-pay order is warranted without a further hearing.
702,
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A, the respondent has engaged in 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 exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
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 discriminated in regard to the hire and
tenure of employment of Barth Solomon and the persons listed in
Appendix B, within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the foregoing 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 re-
spondent, Isthmian Steamship Company, New York City, and its
officers, agents, successors, and 'assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in National Maritime Union of
America, or any other labor organization of its employees, by dis-
charging any of its employees or in any other manner discriminating
against its employees in regard to their hire or tenure of employment;,
(b) In any other manner interfering with, restraining, or coercing
its employees in the'exetcise of the right to, self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-.
resentatives of their own choosing, or to engage in concerted' activities
for the purposes of collective bargaining or other' mutual aid or'
protection.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer the persons listed in Appendix A immediate and full re-
instatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, in
the manner set forth in the section entitled "The Remedy" above, plat
ing those employees for whom employment is not immediately avail-
able upon a preferential list in the manner set forth in the said section,
and thereafter, in said manner, offer them employment as it becomes
available ;
(b) Make whole Marx Kaplan for any loss of pay that he may
have suffered by reason of his discharge by payment to him of a sum
of money, equal to the amount which he would normally have earned
ISTHMIAN STEAMSHIP -COMPANY 703
as wages, including therein the reasonable value of his maintenance on
shipboard , during the period from the date of his discharge until
December 22 , 1937, less his net earnings during said period, deducting
however, from the amount otherwise due to him, monies received by
him during said period for work performed upon Federal, State,
county, municipal or other work -relief projects ; and pay over the
amount, so deducted, to the appropriate fiscal agency of the Federal,
State, county, municipal , or other government or governments which
supplied the funds for said work-relief projects;
(c) Make whole the persons listed in Appendix A for any loss of
pay that they may have suffered by reason of their respective dis-
charges by payment to each of them of a sum of money equal to the
amount which he would normally have earned as wages, including
therein the reasonable value of his maintenance on shipboard , during
the period from the date of his discharge to the date of the said offer
of reinstatement , less his net earnings during said period, deducting
however, from the amount otherwise due to each of the said employees,
monies received by said employee during said period for work per-
formed upon Federal, State , county, municipal , or other work -relief
projects; and pay over the amount, so deducted , to the appropriate
fiscal agency of the Federal , State, county , municipal , or other gov-
ernment or governments which supplied the funds for said work-relief
projects;
(d) -Immediately post notices in conspicuous places on its docks
and on the vessels owned and operated by it, and maintain such notices
for a period of at least sixty ( 60) consecutive days from the date of
posting, stating that the respondent will cease and desist in the man-
ner set forth in paragraphs 1 (a) and (b), and that it will take the
affirmative action set forth in paragraphs 2 (a), (b), and ( c) of this
Order; that the respondent 's employees are free to become or remain
members of National Maritime Union of America ; and that the
respondent will not discriminate against any employee because of
membership or activity in said organization;
(e) Notify the Regional Director for the Second Region in writing
within ten ( 10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has interfered with,
restrained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act with respect to the Knoxville City
and the Meva plis City, and in so far as it alleges that the respondent
discriminated against Barth Solomon and the persons listed in Ap-
pendix B in regard to their hire and tenure of employment.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carlos E. Bridges
Edward Drake
A. S. Gibbs
Nathan Hale
Henry Ledford
Harold Norby
APPENDIX A
M. Nunez
Miguel O'Campa
Pascuale Parlapiano
Juan Raboto
Ralph Rawcliffe
Harry Shadle
S. C. Williams
APPENDIX B
John R. Ahern
Phillip Alvareaiso (Ad-
vaiso)
James Breath
Ernest Erikson
John P. Galvin
John (Jatan) Gutterson
John S. Henderson
Paul Hoffman
Harry L. Krekle (Kiehle)
H. P. Kuznicki
Arthur Lake
William H. Maynard
Theodore Monteira
Robert P. Moore
John Petry
Reynold Quinn
Lynn C. Smith
Godfrey D. Sweet
Isie Yaroslowsky
Jose A. Yglesia
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.