Matson Navigation Co.

National Labor Relations Board - Board Decisions

Dec 22, 1952

101 N.L.R.B. 1268 (N.L.R.B. 1952)

1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. Laborers and Hod Carriers Union, Local No. 300 is a labor organization
within the meaning of Section 2 (5) of the Act.
2. Austin Company is an employer within the meaning of Section 2 (2) of
the Act.
3. By causing Austin Company to discriminate in regard to the terms of em-
ployment of Herman H. Spohr, Louis C. Linker, and William Schuler, Laborers
and Hod Carriers Union, Local No. 300, has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (2) of the Act.
4. By such conduct Laborers and Hod Carriers Union, Local No. 300, has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (b) (1) (A) of the Act.
5. By discriminating in regard to the terms of employment of Herman H.
Spohr, Louis C. Linker, and William Schuler, thus encouraging membership in a
labor organization, Austin Company has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
6. By such conduct, Austin Company has interfered with, restrained, and co-
erced employees in the exercise of rights guaranteed in Section 7 of the Act and
thus has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
MATSON NAVIGATION COMPANY and LESLIE E. BOATWRIGHT AND
ROBERT B. STEWART
NATIONAL UNION OF MARINE COOKS AND STEWARDS and LESLIE E. BOAT-
WRIGHT AND ROBERT B. STEWART . Cases Nob. 20-CA-,524 and
20-CB-172, December x°22, 1952
Decision and Order
On May 15, 1952, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner fur-
ther found that the Respondent Matson had not engaged in other un-
fair labor practices alleged to violate Section 8 (a) (4), and dismissed
the pertinent allegations of the complaint.' Thereafter, the Respond-
'Absent exceptions, and in view of our determination herein, we deem it unnecessary
to pass upon the merits of this action of the Trial Examiner.
101 NLRB No. 214.
MATSON NAVIGATION COMPANY 1269
ents filed exceptions to the Intermediate Report and supporting briefs.
A brief was also filed by Pacific Maritime Association as amicus
curiae.'
The Board 8 has reviewed the rulings of the Trial Examiners made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen.
dations of the Trial Examiner, with the additions noted below.
We agree with the Trial Examiner that Respondent Matson violated
Section 8 (a) (1) and (3) of the Act by refusing to return Boat-
wright and Stewart to their jobs on the S. S. Lurline on or about
September 29, 19.10, and June 18, 1951, respectively, because of their
loss of good-standing membership in the Union. We also agree that
Respondent Union violated Section 8 (b) (1) (A) and (2) by
causing Matson to make this refusal. Like the Trial Examiner, we
find that the contract is no defense and cannot justify the discrimina-
tion in question, as Matson and Pacific Maritime Association argue.
It is true that the contract requires that all employees in the stewards'
department be hired through the Respondent Union, and that Boat-
wright and Stewart did not apply to Matson through the Union.
However, the contract also requires that the Union refer employees
and applicants to Matson on a nondiscriminatory basis. The signifi-
cant factor in this case is that the Union's refusal to refer Boatwright
and Stewart was on a discriminatory basis, and that Respondent Mat-
son, with reasonable grounds for believing the refusal was on this
basis, nevertheless accepted and acquiesced in the Respondent Union's
denial of S. S. Lurline assignments to Boatwright and Stewart and
refused to reemploy them. In situations involving a valid union-
security contract, Congress has provided that the contract is no de-
fense to an employer's discrimination thereunder, if the employer has
reasonable grounds for believing that the union's motivation is un-
lawful4 We are satisfied that Respondent Matson violated Section
8 (a) (3) and (1) of the Act, in view of its knowledge that the Union
9 The motion of Pacific Maritime Association for leave to file this brief is hereby granted.
8 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog and Members Houston and Murdock].
+ Section 8 (a) (3) of the Act provides that , under a valid union -security contract, "no
employer shall justify any discrimination against an employee for nonmembership in a
labor organization (A) if he has reasonable grounds for believing that such membership
was not available to the employee on the same terms and conditions generally applicable
to other members or (B) If he has reasonable grounds for believing that membership was
denied or terminated for reasons other than the failure of the employee to tender the
periodic dues and the initiation fees uniformly required as a condition of acquiring or
retaining membership."
1270 DECISIONS O>;' NATIONAL LABOR RELATIONS BOARD
discriminatorily refused to refer Boatwright and Stewart for re-
employment on the S. S. Lurline.5
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
I. Respondent Matson Navigation Company, San Francisco, Cali-
fornia, its officers, agents, successors, and assigns, shall:
A. Cease and desist from :
1. Encouraging membership in National Union of Marine Cooks
and Stewards, or in any other labor organization of its employees,
by refusing to return any employee to his job because he has been
denied clearance by such labor organization for reasons of nonmem-
bership or bad standing, or by discriminating in any other manner
in regard to hire or tenure of employment or any term or condition
of employment.
2. In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by Section 8 (a) (3)
of the Act.
B. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
1. Offer to Leslie E. Boatwright and Robert B. Stewart immediate
and full reinstatement each to his former or substantially equivalent
position, without prejudice to his seniority or other rights and
privileges.
2. Upon request, make available to the National Labor Relations
Board or its agents , for examination and copying, all payroll records,
social security payment records, timecards, personnel records and re-
ports, and all other records necessary for the determination of the
amount of back pay due under the terms of this Order.
3. Post at its office in San Francisco, California, and aboard the
S. S. Lurline, where notices to employees in the stewards' department
customarily are posted, copies of the notice attached as Appendix A
to the Intermediate Report .6 Copies of such notice, to be furnished
R See Alaska Steamship Company , 98 NLRB 22 ; Southwestern Bell Telephone Company,
97 NLRB 79; A. H. Bull Steamship Company, 93 NLRB 1523, enforced 196 F. 2d 960
(C. A. 2), cert. granted 344 U. S. 852.
a This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" In the caption thereof the words "A Decision and Order ." In the event
that this Order is enforced by a decree of the United States Court of Appeals , there shall
be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant
to a Decree of the United States Court of Appeals Enforcing an Order."
MATRON NAVIGATION COMPANY 1271
by the Regional Director for the Twentieth Region, shall , after being
duly signed by Matson Navigation Company, be posted by it immedi-
ately upon receipt thereof, and maintained by it for sixty (60) con-
secutive days thereafter, in conspicuous places. Reasonable steps
shall be taken by Matson to insure that such notices are not altered,
defaced, or covered by other material.
4. Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10 ) days from the date of this Order, what steps
it has taken to comply herewith.
II. Respondent National Union of Marine Cooks and Stewards, its
officers , agents , representatives, successors, and assigns, shall:
A. Cease and desist from :
1. Causing or attempting to cause Matson Navigation Company,
San Francisco , California , or any other employers who utilize the
Union's San Francisco hiring hall, to discriminate in regard to the
hire and tenure of employment or any term or condition of employ-
ment of any employee or applicant for employment , in violation of
Section 8 (a) (3) of the Act.
2. Accomplishing discrimination against Leslie E. Boatwright and
Robert B. Stewart by withholding dispatch privileges from them or
from any other employee or applicants for employment because of
any consideration of union membership or bad standing.
3. In any other manner restraining or coercing employees or appli-
cants for employment of Matson Navigation Company, or of any other
employers who utilize the Union's San Francisco hiring hall, in the
exercise of the rights guaranteed employees by Section 7 of the Act,
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized by Section 8 (a) (3) of the Act.
B. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
1. Notify Leslie E. Boatwright , Robert B. Stewart , and Matson
Navigation Company in writing that it has no objection to the employ-
ment of Boatwright and Stewart aboard the S. S. Lurline in the same
classifications held before the discrimination against them.
2. Direct, to the extent that it has control, that Leslie E. Boatwright
and Robert B. Stewart be restored to all seniority rights aboard the
S. S. Lurline as if they had worked continuously since the dates of
discrimination against them.
3. Upon reasonable request, make available to the National Labor
Relations Board or its agents , for examination and copying , all regis-
tration and shipping records necessary or convenient for the compu-
tation of the amount of back pay due under the terms of this Order.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Post in conspicuous places in its hiring hall in San Francisco,
California, and wherever notices to members and others customarily
are posted, copies of the notice attached as Appendix B to the Inter-
mediate Report .7 Copies of such notice, to be furnished by the Re-
gional Director for the Twentieth Region, shall, after being duly
signed by the Union, be posted by it immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter. Rea-
sonable steps shall be taken by the Union to insure that such notices
are not altered, defaced, or covered by any other material.
5. Mail to the Regional Director for the Twentieth Region signed
copies of the notice for posting, Respondent Matson Navigation Com-
pany willing, in the office and aboard the vessels of Matson Naviga-
tion Company, in places where notices to employees in the stewards'
department are customarily posted. Copies of such notice, to be
furnished by the Regional Director for the Twentieth Region, shall,
after being signed as provided in paragraph II B 4, above, be forth-
with returned to the Regional Director for said posting.
6. Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10) days from the date of this Order, what steps it
has taken to comply herewith.
III. Matson Navigation Company, San Francisco, California, its
officers, agents, successors, and assigns, and National Union of Marine
Cooks and Stewards, its officers, agents, representatives, successors, and
assigns, shall jointly and severally make whole Leslie E. Boatwright
and Robert B. Stewart in the manner set forth in the section of the
Intermediate Report entitled "The Remedy" for any loss of pay suf-
fered by reason of the discrimination against them, by payment to
each of them of a sum of money equal to the amount each normally
would have earned as wages from the date of discrimination to the
date of the offer of reinstatement, less net earnings.8
7 See footnote 6, supra.
we are not satisfied from . the record that Boatwright and Stewart were reemployed in
their classifications , as the Trial Examiner found , and therefore make no findings as to
the dates when back pay shall terminate . In accordance with our usual policy, the
Respondent Union may terminate its liability for further accrual of back pay to Boatwright
and Stewart by sending the notices referred to in paragraph II B 1 of this Order. The
Respondent Union shall not be liable for any back pay accrual after 5 days from the giving
of such notice , provided , however , that if the S. S. Lurline is not in San Francisco when the
notice is given liability of the Respondent Union shall terminate -5 days after the vessel's
arrival in that port . See Mundet Cork Corporation , 96 NLRB 1142.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges duly filed by Leslie E, Boatwright against Matson Navigation
Cbmpany, herein called Matson, and National Union of Marine Cooks and
Stewards, herein called the Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for the Twentieth Region, ordered the
MATRON NAVIGATION COMPANY 1273
cases to be consolidated and issued a complaint against Matson and the Union
dated February 19, 1951 , charging Matson with violations of Section 8 (a) (3)
and (1) of the National Labor Relations Act, 61 Stat. 136, herein called the Act,
and the Union with violation of Section 8 (b) (2) and 8 (b) (1) (A) of that
statute. Pursuant to notice, a hearing was held on the complaint before Maurice
M. Miller , a Trial Examiner duly designated for that purpose , in San Francisco,
California, on various dates from April 11 through June 26, 1951. While the
hearing was in progress on June 25, 1951, Robert B. Stewart filed separate charges
against Matson and the Union. On the record in the hearing on the following
day, June 26, the General Counsel offered in evidence copies of the charges filed
by Stewart, presented copies to counsel for Matson and for the Union, and offered
an amended complaint alleging additional unfair labor practices on the part of
Matson and the Union in respect to Stewart. Trial Examiner Miller, treating
the offer of the charges and the amended consolidated complaint as a motion to
amend the original complaint, granted the motion and ruled that service of the
charges had been made in open hearing upon Matson and the Union. There-
after, on July 10, 1951, by written order, Trial Examiner Miller denied motions
to sever the Stewart case from that of Boatwright and further motions to
particularize the amended consolidated complaint with respect to Stewart.
The services of Trial Examiner Miller having become unavailable to the Board,
the undersigned has been designated to act in his place and stead. In the exercise
of this authority, I reconvened the hearing on March 1, 1952, and thereafter
further hearing was held on various dates to and including March 26, 1952,
when the hearing closed. Certain of the motions theretofore made before Trial
Examiner Miller were remade before me. The argument was advanced by
counsel for Matson and counsel for the Union that there had been no service,
within the meaning of the Act, of the charges filed by Stewart, and that more
than 6 months had passed following the commission of the alleged unfair labor
practices in respect to Stewart before the hearing concerning him resumed. I
denied a motion to dismiss the complaint as to Stewart, predicated upon this
argument. Although I have grave doubt that service of the charges upon counsel
in the hearing constituted such service as the Board's Rules and Regulations
contemplate, I do not reach that question, as I find that the charges filed by
Stewart are surplusage. The complaint properly could be amended without
them' Further motion to sever the case of Stewart from that of Boatwright,
made by counsel for the Union and counsel for Matson, were denied. Motions to
dismiss the complaint in part or in its entirety were taken under advisement
and are hereby denied except as hereinafter appears. All parties were granted
until May 5 to'file briefs with the undersigned. A brief has been received from
counsel for Matson.
Upon the basis of the entire record and from my observation of such witnesses
as appeared before me, I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF MATSON
Matson is a California corporation with its principal office in San Francisco,
engaged in the business of transporting passengers and cargo by vessel from
ports in California to ports located in other States, and in the Territory of
Hawaii . During the period from January through April 1950, Matson trans-
ported approximately 12,000 passengers and about 1,000,000 tons of cargo, hav-
ing a value of approximately $200,000,000, between ports of the various States of
the United States and the Territory of Hawaii.
1 Waterfront Employers of Washington, 98 NLRB 284.
1274 DECISIONS OF NATIONAL LABOR ' R 1Li1VIONS BOARD
II. THE UNION
National Union of Marine Cooks and Stewards , unaffiliated , is a labor organiza-
tion admitting to membership employees of Matson.
III. THE UNFAIR LABOR PRACTICES
On August 18, 1950 , Pacific Maritime Association, on behalf of its members,
among them Matson , entered into a supplementary agreement with the Union
providing that all employees in the stewards department aboard vessels operated
by members of Pacific Maritime Association be hired through the Union, the
Union undertaking that it would refer such employees to members of Pacific
Maritime Association on a nondiscriminatory basis, without regard to member-
ship or nonmembership in the Union . The supplementary agreement recognized
that any employee with more than 12 months' employment at sea since December
2,1946, might continuously remain in his employment on the vessel provided that
the employer and the employee desired.
In March or April 1950, in order to spread the available jobs among a greater
number of workers, the Union instituted an arrangement which became known
as the "swing" plan, whereby anyone sailing in a steward department rating,
after three voyages would stay ashore for one trip and be replaced by another
dispatched from the union hall. To facilitate this arrangement, the waiters
aboard the Lurline, a Matson vessel, were placed in groups of four, only three
of whom would be working at any given time, one of the group being ashore taking
a trip off. Matson opposed the institution of the swing plan but was, of course,
aware of its existence, and apparently acquiesced in its operation. The sched-
uling of which individual would take a trip off upon arrival in San Francisco
was left to the ship's delegate, a union member selected by stewards' department
personnel. Matson took no part in such determinations. Ideally, the plan
should have resulted in four men rotating sequentially at work in three jobs.
In practical effect the plan never quite reached such perfection for a number of
reasons, principal among them that a replacement was not always available for
one whose turn it was to take a trip off.
Leslie E. Boatwright, a member of the Union since 1939, became employed by
Matson aboard the Lurline in May 1948. On November 3, 1949, the classification
of top-side waiter, which he then held, was abolished, and all those doing that
work were thereafter designated as smoking-room stewards. From that time for-
ward , to the end of September 1950, five smoking-room stewards , among them
Boatwright, were employed aboard the Lurline. On August 26, 1950, the Union
served Boatwright with charges preferred by its president , Hugh Bryson. The
charges, as later particularized, alleged that Boatwright by his conduct had
proven himself untrue and disloyal to the Union and had demonstrated a
preference for outside organizations such as the National Maritime Union, the
Marine Firemen's Union, and the Sailors Union of the Pacific. After a trial,
Boatwright was found guilty by a union trial committee, and on September 14,
1950, by action of the Union , was suspended from membership for 10 months
and fined $250. In the meantime, on September 7, Boatwright left the Lurline
when it arrived in San Francisco in obedience to the swing plan' Lee O.Cof roan,
an industrial relations representative for Matson , testified that he was aware
! Charles L. Christian , Matson's superintendent of stewards , testified that he refused
Boatwright a leave of absence on September 9, 1950 , when the latter offered no reason to
support such a request . On cross-examination , Christian admitted that he was uncertain
when it was that Boatwright had approached him in the matter . In any event, as will
appear , Boatwright 's inability to regain his employment with Matson subsequent to
September 7 was not caused by any unauthorized leave-taking.
MATSON NAVIGATION COMPANY 1275
of the reason for Boatwright 's leaving the vessel on that date ; the termination
slip for Boatwright in Matson 's files indicates that it was because of the swing
program. On that date , in accordance with the Union 's shipping rules, Boat-
wright registered at the union hiring hall to reship aboard the LurUne when it
next left San Francisco.
The Lurline again arrived in San Francisco on September 30. On September
29, Boatwright went to the union hall in order to obtain an assignment to return
to the vessel. According to Boatwright's credited and uncontradicted testi-
mony, he was met at the door of the hall by a member of the Union, John Fower,
who told him that he was no longer a member of the Union and could not enter.
Boatwright explained that he had come to get an assignment to the Lurline, and
when Fower still would not admit him, asked that Port Agent Nathan Jacobson
be told of the purpose of his visit. Fower closed the door, leaving Boatwright
outside. In a few moments, John Wiley who, according to Boatwright' s credited
testimony, was acting as dispatcher for the Union on that day, came out. Boat-
wright told Wiley of his purpose and asked Wiley to inform Jacobson of Boat-
wright's desire to get an assignment to the Lurline. Wiley answered , according
to Boatwright's credited and uncontradicted testimony, "I will tell him, Boat-
wright, but there is nothing I can do, you know that." Wiley went back in and
in a few moments another union member, Harry Bagley, came out to say that
Jacobson had called down and told Bagley to tell Boatwright that Boatwright
was no longer a member of the Union and was not to be admitted to the hall.
Boatwright left and went to the office of Matson , where he saw Lee Coffman.
Boatwright told Coffman that he wanted to get his job on the Lurline. Coffman
asked if he had an assignment , and Boatwright answered that he had not.
Boatwright explained that he had been suspended from the Union and fined a
sum of money. Coffman said he was sorry to hear that and asked what Boat-
wright expected him to do. When Boatwright said that he wanted to return
to his job , Coffman answered that he could not send him back to the ship without
an assignment from the Union. Boatwright remarked that he felt that he had
been unjustly deprived of his job by the Union and that he believed Matson
knew he had no intention of quitting. Coffman answered that he had nothing
against Boatwright as an employee , but that he could not send him to the vessel ;
to do so would constitute a violation of Matson 's contract with the Union.
Boatwright left and later in the day returned to the union hall , where he spoke
to the Union's patrolman , Harry Nehrebecki , and Port Agent Jacobson . Nehre-
becki asked him what he was doing down there again, and inquired if he had
not been told that morning that he was not to be given an assignment . Jacobson,
who approached about that time, said, "You are not going to get it, Boatwright."
Continuing his conversation with Nehrebecki , Boatwright asked if that was the
final decision . Nehrebecki answered , according to Boatwright's credited and
uncontradicted testimony , "Well, I don 't think your job is going to be available
on the Lurline any more. . . . They are going to lay off one of the smoking
room stewards." Boatwright protested that that would not affect him, as he
was the fourth man in terms of seniority. The Lurline sailed on October 2, with
only four smoking-room stewards , all of whom had made the previous voyage.
Up to the date of the hearing, the complement of smoking -room stewards has
not been increased beyond that number.
On December 10, 1950, Boatwright met with Eddie Tangen, secretary-treasurer
of the Union. Boatwright testified credibly and without contradiction that
he asked Tangen what he must do in order to get his job back. Tangen told him
that he would have to write a letter disavowing the actions and associations
which the Union found objectionable and if he did so, Tangen would recommend
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the membership that his fine be rescinded and his suspension lifted. In that
event, he would be permitted to return to the ship immediately., Boatwright
refused the offer. Robert B. Stewart, a member of the Union and of the Lurline's
crew, testified that in November 1950, Tangen made a voyage on the Lurline
during which, at a meeting of union members in the stewards' department,
Tangen offered a resolution to the effect that if Boatwright shipped off the dock
without an assignment from the Union, members of the Union would refuse
to sail with him.
The evidence is that seniority among those sailing in stewards' department
ratings with respect to layoffs or promotions is handled by the crew members,
without interference or suggestion from Matson. Coffman testified that the
cut in the number of smoking-room stewards, beginning with the voyage leaving
San Francisco on October 2, was by agreement with the Union. The number of
such stewards has not since been increased and I conclude that this action was
not taken in order to deny Boatwright an opportunity for employment. The
General Counsel contends that even with the smaller number of smoking-room
stewards employed, Boatwright should have been given an assignment for the
sailing of October 2, and that his suspension from the Union accounts for his
failure to receive one. Matson's position is that, as all smoking-room stewards
who sailed on that voyage had been aboard in the same capacity for the previous
voyage, there was no vacancy to which Boatwright could have been assigned,
even had the Union sent him to Coffman with a referral. It is true that no,
indication was given to Coffman that there existed the necessity of dispatching a
smoking-room steward to the Lurline for the voyage of October 2, and that
when Boatwright told Coffman he desired to go back aboard the vessel to take
his old job, there was no vacancy existing.
Steward testified credibly and without contradiction that seniority among the
employees is dated from the first service in a particular job assignment on a
particular vessel. Thus, a waiter aboard the Lurline would have his relative
seniority determined by the length of time he had been aboard that vessel in
comparison with such service for other waiters, and of course the same rule
applied to smoking-room stewards. Boatwright testified, and there is no evi-
dence to the contrary, that of the five smoking-room stewards regularly working
aboard the Lurline he was fourth in point of seniority. Of the five smoking-room
stewards who arrived aboard the Lurline when it completed its voyage on
September 30, one, Thomas Cook, left the vessel. He had been in such a classi-
fication aboard that vessel since April 1950. Of the four who continued as
smoking-room stewards for the voyage leaving October 2, all were senior in point
of service in that classification to Boatwright, but Sidney Kaufman, who accord-
ing to Matson's records first became a smoking-room steward on May 25, 1950,
and continued in that capacity until October 12 of the same year. The General
Counsel contends that Kaufman should have left the vessel on his return to San
Francisco September 30 and that Boatwright should have been shipped.
Coffman testified credibly that Matson did not concern itself with such
seniority arrangements ; that when a reduction in force becomes necessary fewer
men are signed on for the ensuing voyage, the determination of the individual to
be dropped being left to the union delegate and the crew aboard the vessel.
The Union asserts, correctly, that no request was made of it to supply a smoking-
room steward to the Lurline for the sailing of October 2 and denies any obliga-
tion devolved upon it to require any of those aboard that vessel to terminate his
employment in order to provide a job for Boatwright.
Prior to September 30, 1950, the smoking-room stewards regularly assigned to
the Lurline in order of seniority were Oscar Anderson, Howard Davis, Abe
MATSON NAVIGATION COMPANY 1277
Bentley, Leslie Boatwright , and Jack Belvedere . For the voyage which ended
in San Francisco on September 7, Thomas Cook was the swing man in replace-
ment for Bentley , and Sidney Kaufman in the same situation with respect to
Davis. On the voyage leaving San Francisco September 8 or 9, Kaufman re-
mained as replacement for Davis until the vessel reached Los Angeles where
Davis boarded the vessel and Belvedere left. For the remainder of the trip,
Kaufman and Cook were in replacement status for Belvedere and Boatwright.
On the sailing of October 2 Kaufman was the, only swing replacement shipping as
smoking-room steward. He apparently left the vessel in Los Angeles when
Belvedere returned.
According to Boatwright's uncontradicted and credited testimony, the Union's
ship delegate is in possession of records indicating the length of service of each
individual in stewards' department ratings aboard that vessel and, in the event
of a reduction in force, that the last man aboard the ship in the classification to
be reduced is the one required to leave. The determination of the man affected
in such a situation is made by the delegate by reference to the records concerning
length of service.
When the Lurline docked in San Francisco on September 30, two of the smoking-
room stewards, Cook and Kaufman, were not part of the regular complement.
Cook left the vessel, for what reason the record does not disclose, and Kaufman
stayed aboard. The seniority scheme which Boatwright described in his testi-
mony would seem to have required that Kaufman also leave and had he done
so there would have been a vacancy for Boatwright to fill. The seniority policy
is unobjectionable, measured against the Act, and had it been followed in the
case of Boatwright it is difficult to see how the General Counsel could have
complained. But I understand his contention to be that the combination of
circumstances (the perhaps fortuitous coincidence of d reduction in the number
of smoking-room stewards and the decision of the four Wien to remain at their
jobs) provides merely a convenient cloak to the Union under which to hide
discriminatory action to deprive Boatwright of his job.
Before pursuing this aspect of the case further, Matson's assertion that Boat-
wright quit his job when he left the Lurline on September 7 must be considered.
Certain of the arguments advanced to support this position have merit. Matson
had never agreed to the swing program and had it discharged Boatwright when
he left the vessel and because he did so, I apprehend no question of illegality
attaching to its action. So, too, if it had refused him further employment for
that reason. Thus I could find myself in agreement with counsel for Matson
when he says in his brief that Matson, after September 7, had no obligation to
rehire Boatwright. But rehire connotes a termination and Boatwright was never
discharged nor did he quit. Much as it opposed the swing plan in principle,
Matson never took action to combat it. Perhaps it decided, as Coffman says it
did, that there was nothing it effectively could do . When Boatwright left the
Lurline on September 7, Matson knew why he did so. Its records show that the
leaving was occasioned by the swing program
On September 29 when Boatwright presented himself to Coffman, the latter
knew that he was not talking to one who had quit his job and then was seeking
reemployment but to one who had taken about 3 weeks off in obedience to a rota-
tional program familiar to Coffman. He was not then given a pass to the Lurline
because he could not display an assignment from the Union and because Coffman
was aware of no vacancy in the classification of smoking-room steward. Matson
was satisfied with his services as, no doubt, it was with those of Kaufman. But
S As shown by a symbol on a form called "Termination notice ." Another and different
symbol is used to indicate a voluntary quit.
127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kaufman was aboard the vessel as a swing man and was not a permanent replace-
ment for anyone among the smoking-room stewards. Matson must be presumed
to have known who its regular stewards were and that Boatwright was one of
them . When Boatwright called at Coffman 's office on September 29 and told
Coffman that the Union had suspended him and for that reason could not
secure an assignment slip, Coffman was given effective notice that Boatwright
was being discriminated against by the Union.
When Boatwright appeared at the union hall on September 29, he was treated
as one who had forfeited all right to get assignment. But membership in good
standing in the union was not a condition precedent to obtaining assignment nor
could it lawfully have been made so under the contract. The rotational program
of the Union had required Boatwright to leave the Lurline on September 7 but
when he attempted to return to his ship the program was not permitted to
operate in his case. Thus was Boatwright maneuvered out of his job. The plan
of the Union had placed Kaufman on the Lurline as a smoking-room steward in
temporary replacement for those in permanent berths who were taking swing
trips off. The same program would logically have required Kaufman to leave
the vessel when Boatwright had finished his enforced vacation. But the Union
would not continue the program when it served to return Boatwright to work.
The reason for the Union's action or failure to act is by no means obscure.
Boatwright had engaged in activity frowned upon by the Union's leadership and
here was opportunity for reprisal. Any doubt that the Union prevented Boat-
wright from working aboard the Lurline is dispelled when consideration is given
to Tangen's offer in December to arrange for Boatwright's return to that vessel
if he would denounce his actions and associations.'
Matson, knowing that under the Union's rotational program Boatwright was
entitled to return to the Lurline for the sailing of October 2, knowing that Kauf-
man was aboard that vessel as a temporary replacement under that program,
and having reason to believe that Boatwright was being penalized by the Union
because of bad standing in that organization, permitted the Union to have its
way. I am aware that the contract between the Union and Matson required
that all ratings in the stewards' department be dispatched from the Union's hall
and that Boatwright was not so dispatched. But the legality of such an arrange-
ment is entirely dependent upon a nondiscriminatory dispatching practice and
it fails to satisfy the requirements of the Act when discriminatory considerations
come into play as they did in the case of Boatwright. Matson could lawfully
have permitted the Union to select who should sail and who not only if the
selections were made in conformance with the guarantees of the Act. By
acquiescing in the Union's determination that Boatwright be deprived of his job
Matson imposed a test of union membership or good standing or favor which the
Act does not permit and thus encouraged membership or good standing in the
Union in violation of Section 8 (a) (3) of the Act. By such conduct Matson
interfered with, restrained, and coerced Boatwright in the exercise of rights
guaranteed in Section 7 of the Act thereby violating Section 8 (a) (1) of the Act.
By preventing Boatwright access to the union hall on September 29 and by
attempting to cause and causing Matson to refuse to return him to his job on
the Lurline for the sailing of October 2, the Union caused Matson to discriminate
against Boatwright in violation of Section 8 (a) (3) of the Act and thereby
violated Section 8 (b) (2) of the Act. By the same conduct the Union restrained
+ The nature of this activity (apparently opposition to the Union 's leadership develop-
ing into support for rival organizations ) Is unimportant . Under the Act an employee is
not required to please a union or its leaders in order to gain or retain employment.
MATSON NAVIGATION COMPANY 1279
and coerced Boatwright in the exercise of rights guaranteed in Section 7 of the
Act and thereby violated Section 8 (b) (1) (A) of the Act.
Robert B. Stewart testified credibly and without contradiction that after he left
the stand in this proceeding on April 11, 1951, he proceeded to the Lurline which
was to sail that afternoon. Before the vessel left he met Patrolman James
Hermann, an employee of the Union, who said, "Bob, when this is over, look for
a new union." A little later he met the Union's president, Hugh Bryson, who,
after characterizing Stewart as a rat and one who had "sold out" the Union, said,
"Well, we'll take care of you." On May 26, 1951, because of the Union's swing
program Stewart took a trip off. On May 28 he went to the union hall to
register for reshipment aboard the Lurline and told the dispatcher, Edwards, of
his purpose. Edwards said that it was his understanding that Stewart was
not to go back on the Lurline and did not register him. The next day Stewart
returned and, after some delay and a remark by Edwards, "You're going to the
hospital," was registered to reship. On June 16, the Lurline being then about
to arrive In port, Stewart returned to the union hall to get his assignment to
that vessel. Dispatcher Edwards said that Jacobson, the port agent, wanted to
see him. Stewart met with Jacobson, who told him that President Bryson had
preferred charges against him and gave him a copy. Stewart read the charges
and left the hall. On June 18 he went to the office of Matson at the pier and
met with Coffman. He showed Coffman the charges, said that the Union had
taken him off the job, and asked for his job back. Coffman said that it was
unfair, that Stewart was a good employee, and that Matson was happy to have
him, but that his hands were tied ; he could give him no job without an assign-
ment. Stewart went on to tell Coffman that he had been threatened concerning
his testimony in that it allegedly was in opposition to the interest of the Union.
Two days later, on June 20, Stewart returned to the Matson office and talked
to Robert Miller, manager of industrial relations. He told Miller that he
wanted his job back, that it unlawfully had been taken from him, and showed
him the charges preferred by the Union. Miller answered that he would like
to have Stewart back, but could not take him without an assignment from the
Union. On June 22, Stewart appeared before a trial committee of the Union, but
no recommendations were made concerning him immediately. In the meantime
Matson agreed to pay Stewart the amount of his wages and subsistence for a
voyage of the Lurline which he missed on June 18. On July 6 Stewart again
appeared before a union trial committee, where he was questioned by President
Bryson concerning his testimony in this proceeding and accused of consorting
with officials of the National Maritime Union. On July 11 Stewart returned to
the Matson office and met with Vice-President Tichenor and others. Tichenor
told him that he could not give him his job without an assignment from the
Union and advised him to go to the union hall the next day to find the result
of the trial and to return to Matson then with whatever information in that
respect he was given. According to Stewart, in this context, Tichenor said, "We
guarantee you your job." On the same day Stewart went to the union hall and
asked President Bryson for an assignment. Bryson said that he did not give
them out. On July 12 Stewart was informed that he had been found guilty of
the charges against him, placed upon 1 year's probation, and for 6 months would be
permitted to sail aboard freight vessels only. He then returned to Matson's
office and reported the findings to Tichenor. Tichenor asked Stewart to tele-
phone him that evening and when the phone call was made, Tichenor advised
Stewart and others who were in a similar situation to go to the union hall early
the next morning because he believed that they could thus obtain assignment slips
to the Lurline. In the belief, according to Stewart, that the only jobs available
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the hour suggested by Tichenor would be scullion jobs, he did not go to the
hall. On August 21 Stewart asked Tichenor 's assistants , Newell and Coffman, if
be could get on the Lurline for the impending voyage with an assignment from
the Union. When the answer was yes, Stewart and others went to the union hall
and asked Secretary-Treasurer Tangen for an assignment . Tangen said that
they were too early, that the ship was not due to arrive until August 24. This
incident Stewart reported to Coffman and Newell. On August 24 Stewart re-
turned to the hall and asked Dispatcher Edwards for an assignment to the Lurline.
Edwards said that Stewart would have to be shipped from the open board and
taking Stewart's reship card , crossed out the notation "reship" that appeared
on it. Stewart returned to Matson and told Newell and Coffman what had hap-
pened . On their advice, Stewart returned to the hall, asked Edwards for an
assignment , but was told that there was no job on the board. Stewart made no
further attempt to get his job on the Lurline.
To state the facts is to decide the issue. As in the case of Boatwright,
Stewart's employment relation to Matson had not been broken by the swing
program and he had a right to return to the Lurline on June 18 if Matson was
willing, as it was, that he do so. The reason the Union did not give him an
assignment slip is too obvious for comment. He had been served with charges
and had testified unfavorably to the Union in this proceeding. The defense
of Matson that its contract prevented it from giving work to anyone in steward
department ratings without assignment from the Union is of no avail. Matson
bad clear evidence that Stewart was being refused an assignment slip which
ordinarily would have issued to him as of course because he had fallen out
of favor with the Union. By refusing to place him aboard the vessel in his
job, Matson implemented the Union's discriminatory design .5
The complaint alleges that Matson refused further employment to Stewart,
among other reasons, because of Stewart's testimony in this hearing . I under-
stand the General Counsel's theory in this respect to be that, as one of the
reasons impelling the Union to refuse assignment to Stewart was his testimony,
Matson in effect adopted the Union's motivation. I am convinced by Stewart's
testimony and despite the denial of Jacobson that the Union was so motivated.
My conviction in this respect is supported by Stewart's uncontradicted testi-
mony that Union President Bryson threatened retaliatory action against him
for that very reason . But Section 8 (a) (4) is very narrow in its application
and prohibits discrimination against an employee "because he has Sled
charges or given testimony under this Act." In order to establish a violation
the motivation must be found to reside in the employer. Section 8 (a) (3)
differs in that evidence of motivation is not essential. That section is violated
if the discrimination encourages or discourages membership in a labor organi-
zation. I find it clear that Matson did not refuse employment to Stewart because
it had objection to his testimony. But the General Counsel contends further
that having empowered the Union to select those who would be dispatched,
the motivation of the Union is imputable to Matson. With this I do not agree.
Although the Union, in a sense, acts as the agent of Matson in supplying it
with employees and although I will agree that Matson must answer if the Union
applies a discriminatory test to one seeking to be dispatched, the plain reason
for such a result is that Matson has constituted the Union as its sole source
rI find no reason to decide whether Boatwright or Stewart evidenced any willingness
to return to their jobs without an assignment from the Union . Neither was at any time
offered employment in that fashion . Both demanded of Matson that they be treated as
others were ; that they be returned to their duties after a swing trip off.
MATSON NAVIGATION COMPANY 1281
of employees and discriminatory practices at the dispatching level taint the
hiring scheme from the beginning. The reason for the discrimination becomes
unimportant. A union might refuse to dispatch one who is delinquent in his
dues. If the individual then failed to get employment under such an exclusive
hiring arrangement as exists here, the employer would find himself in violation
of the Act even though he might devoutly wish that others would in some way
be inspired to refuse to pay dues and that the union thus be weakened. I find
that the Union's motivation for its action in connection with Stewart is not
to be imputed to Matson and that Matson did not refuse employment to Stewart
because he had testified in this proceeding. I hereby grant Matson's motion
to dismiss the 8 ( a) (4) allegation of the complaint.
I find that by refusing Stewart an assignment to the Lurline on June 18 and
thereafter the Union caused Matson to discriminate against Stewart in viola-
tion of Section 8 (a) (3) of the Act and that the Union thereby violated Section
8 (b) (2) of the Act.
By such conduct the Union restrained and coerced Stewart in the exercise of
his rights under Section 7 of the Act and thereby violated Section 8 (b) (1) (A)
of the Act.
By refusing to return Stewart to his job aboard the Lurline because he lacked
an assignment from the Union and with reason to believe that the assignment
was refused Stewart because he was in bad standing with the Union, Matson
encouraged membership in that organization and discriminated in regard to the
hire and tenure of employment of Stewart in violation of Section 8 (a) (3) of
the Act. By this conduct, Matson interfered with, restrained, and coerced Stew-
art in the exercise of rights guaranteed in Section 7 of the Act and thereby
violated Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Matson and the Union set forth in section III, above, occur-
ring in connection with the operations of Matson set forth 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Matson and the Union, and each of them, have engaged in
and are engaging in certain unfair labor practices, it will be recommended that
each cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Having found that both Matson and the Union
are responsible for the discriminations suffered by Boatwright and Stewart, it
will be recommended that they jointly and severally make Boatwright and
Stewart whole for any loss of pay suffered by reason thereof. Both have since
been reemployed in their classifications. However, to the extent that it may not
yet have been done, each must be fully reinstated with all seniority and other
rights and privileges which they previously enjoyed.° Loss of pay on the part
of Boatwright and Stewart shall be computed on the basis of each separate
6 On June 22 and 23 and again on July 13 and 14, 1951, both Boatwright and Stewart
with others picketed the Lurline causing some delay in its sailing with attendant incon-
venience and financial loss to Matson . In his brief , as at the hearing , counsel for Matson
urges that both by this conduct have disqualified themselves for further employment . Aside
from the fact that after these incidents Matson still said that it was willing to employ
Stewart (Boatwright made no request that it do so after September 29, 1950), neither
Boatwright or Stewart thereby engaged in any conduct which imaginably could be char-
acterized as disqualifying. The decision in Hoover Company v N. L R R , 28 LRRM
2353 (C. A 6) is inapposite.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
calendar quarter or portion thereof during the period, in the case of Boatwright,
from September 30, 1950, and of Stewart , June 18, 1951, to the date they were
reemployed . The quarterly periods, hereinafter called quarters, shall begin with
the first day of January , April, July, and October. Loss of pay, for which Mat-
son and the Union shall jointly be held responsible and shall jointly make each of
them whole, shall be determined by deducting from a sum equal to that which each
would have earned for each quarter or portion thereof his net earnings,' if any,
in other employment during that period . Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other quarter. Matson
and the Union, upon reasonable request, shall make available to the Board or
its agents for examination and copying all records pertinent to the calculation
of back pay due. The record demonstrates that despite its protestations to the
contrary, the Union does not refer the applicants for employment to Matson on
a nondiscriminatory basis and certain of its shipping rules in evidence are wholly
inconsistent with the nondiscriminatory operation of a hiring hall. The legality
of the contract itself, however, was not placed in issue. Hence no recommen-
dation will be made that it be set aside.
Upon the foregoing findings of fact and the entire record in the case, I make
the following :
CONcLusIONs OF LAW
1. National Union of Marine Cooks and Stewards is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By causing Matson Navigation Company to discriminate in regard to the
hire and tenure of employment of Leslie E. Boatwright and Robert B. Stewart,
in violation of Section 8 (a) (3) of the Act, the National Union of Marine Cooks
and Stewards has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
3. By refusing employment to Leslie E. Boatwright on or about September 29,
1950, and by refusing employment to Robert B. Stewart on and after June 18,
1951, Matson Navigation Company has discriminated in regard to the hire and
tenure of employment of those individuals to encourage membership in a labor
organization and thereby has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) and 8 ( a) (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.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE wILL NOT encourage membership in NATIONAL UNION of MARINE COOHs
AND STEwARns or in any other labor organization of our employees by
discriminatorily discharging, refusing to hire, or refusing to return any
individual to his job for failure to obtain clearance from that labor organiza-
tion, except as permitted by Section 8 (a) (3) of the Act, or by discriminating
in any other manner in regard to hire or tenure of employment or any term
or condition of employment.
1 Crossett Lumber Company, 8 NLRB 440.
MATSON NAVIGATION COMPANY 1283
WE WILL NOT in any like or similar manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed them by
Section 7 of the Act , except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Leslie E. Boatwright and Robert B. Stewart full rein-
statement each to his former or substantially equivalent position without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make each of them whole for any loss of pay suffered as a result of
the discrimination against him.
All our employees are free to become, remain , or to refrain from becoming
or remaining members of the above -named union or any other labor organization,
except to the extent that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the Act.
MATSON NAVIGATION COMPANY,
Employer.
By -----------------------------------
(Representative ) ( Title)
Dated ------------------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF NATIONAL UNION OF MARINE COOKS AND STEWARDS AND
To THOSE WHO SHIP THROUGH THE SAN FRANCISCO HIRING HALL
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act as amended , we hereby notify you that :
WE WILL NOT cause or attempt to cause MATSON NAVIGATION COMPANY, its
officers, agents , successors , and assigns , to discharge, refuse to hire, refuse to
return to employment, or otherwise discriminate against employees or
applicants for employment for their failure to obtain clearance from this
organization , except in accordance with Section 8 ( a) (3) of the Act.
WE WILL NOT in any other manner cause or attempt to cause MATSON
NAVIGATION COMPANY, or its agents , successors or assigns , to discriminate
against its employees in violation of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of MATSON NAVIGATION COMPANY,
its successors or assigns, in the exercise of rights guaranteed in Section 7
of the Act.
WE WILL make Leslie E. Boatwright and Robert B. Stewart whole for any
loss of pay each may have suffered because of the discrimination against
them.
WE HEREBY WITHDRAW any objection to the employment of Leslie E.
Boatwright as smoking-room steward aboard the Lurline, and of Robert B.
Stewart as waiter aboard the same vessel.
NATIONAL UNION OF
MARINE COOKS AND STEWARDS,
By ------------------------------------
Dated _----------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced , or covered by any other material.
242305-53-82