Peninsular & Occidental Steamship Co.

National Labor Relations Board - Board Decisions

Jul 10, 1961

132 N.L.R.B. 10 (N.L.R.B. 1961)

10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peninsular & Occidental Steamship Company and Green Trad-
ing Company and Seafarers' International Union of North
America, Atlantic and Gulf District , AFL-CIO. Case No.
12-CA-255. July 10, 1961
DECISION AND ORDER
On September 2-1, 1959, Trial Examiner James A. Shaw 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 Inter-
mediate Report attached hereto. Thereafter, the Respondents and
the General Counsel filed exceptions thereto and the Respondents filed
a supporting brief.'
The Board' has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case 3 and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following additions and
modifications.
Jurisdiction
The Respondent contends that the Board is without jurisdiction to
proceed in this matter and, assuming such jurisdiction, that it would
not effectuate the policies of the Act to assert jurisdiction in this case.
It thus moved that the complaint be dismissed.
The unfair labor practices alleged in this case involve, inter alia,
the crew of the SS Florida. A full discussion of the control and
1 As set forth in our decision in West India Fruit and Steamship Company, Inc., 130
NLRB 343, footnote 4, the Attorney General of the United States was permitted to inter-
vene in this and the West India case , and in Eastern Shipping Corporation, McCormick
Shipping Corporation, 132 NLRB 930, and, in his brief, filed November 18, 1960, pre-
sented on behalf of the Department of State and Department of Defense certain considera-
tions of international law and national defense policy bearing upon issues common to -
the three cases.
2 On February 7, 1961 , Respondent filed a motion "to disqualify Board Member Joseph
Alton Jenkins from participation , deliberation and decision " in this case . As Mr. Jenkins
resigned , effective March 28, 1961 , as a Member of the Board, the motion is moot with
respect to his participation in the decision of this case . As for his "participation, delibera-
tion and decision" at prior stages of the proceeding , see West India Fruit, supra, foot-
note 6, in which the motion to disqualify is denied.
3 On May 18, 1960, the Board issued a notice of hearing consolidating the present case
with West India Fruit and Steamship Company, Inc ., supra, and Eastern Shipping
Corporation, McCormick Shipping Corporation, supra, for purposes of oral argument on
certain jurisdictional and public policy issues common to the three cases. The hearing
was held on May 31, 1960, and all parties in the consolidated cases were represented by
counsel and participated in the argument . See West India Fruit, supra, footnote 5. All
requests for reargument or additional argument have been duly denied See West India
Fruit, supra, footnotes 5 and 6
132 NLRB No. 1.
PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 11
operations of the Florida and the status of its crew is set forth in the
Board's decision in Peninsular & Occidental Steamship Co.," a repre-
sentation proceeding, and need only be outlined here. Prior to August
1955, the Florida was owned and operated by Peninsular & Occidental
Steamship Co., herein called P & 0, a Connecticut corporation, and
sailed under the American flag, operating between Miami, Florida,
and Havana, Cuba. In that month, P & 0 organized Blue Steamship
Company, a Liberian corporation, and having complied with appli-
cable United States laws, transferred the ship to Blue for a nominal
consideration. That company, in September 1955, duly registered
the Florida under the laws of Liberia. During this same period,
P & 0 and its attorneys organized, under the laws of Liberia, Green
Trading Company. On August 18, 1955, Blue chartered the Florida
bareboat to Green, which on the same day entered into a time sub-
charter with P & 0 for operation of the vessel. Insofar as the record
indicates, the above charter arrangements have been in effect at all
times here material.
The Florida, which is a passenger cruise vessel carrying some cargo,
has since its transfer to Liberian registry continued to operate regu-
larly out of Miami, Florida-its de facto if not de jure home port-to
various foreign territories, such as Nassau in the British Bahamas
and Havana, Cuba, which were ports of call at the time the unfair
labor practices involved in this proceeding occurred .5 The ship is
primarily provisioned and repaired in the United States and derives
most of its passenger trade and the bulk of its cargo at Miami. It has
never been in Liberian waters, but is inspected by agents of the
Liberian Government.6 The crew of the vessel is composed primarily
of nonresident aliens.
With respect to the unfair labor practices, the record here shows
that the events involved occurred in the United States, upon the high
seas, and in areas under the jurisdiction of Great Britain and Cuba.
As noted, they involved, inter alia, members of the crew of the Florida
and were directly related to their status as employees serving on that
vessel.
The Respondents, as stated above, contend that on these facts, the
Board is without. jurisdiction under the Act to proceed in this case,
4120 NLRB 1097 , herein called "representation proceeding ." That case involved the
SS Southern Cro88 as well as the Florida . However, the Southern Cross was not in
operation at the time of the hearing in this case , having been taken out of service and
offered for sale in February 1958. Whether it has in fact been sold or returned to service
is not reflected in the record . Before the Southern Cro88 was taken out of service, it
was operated in substantially the same manner and under the same circumstances as
the Florida.
6 However , after mid-November 1957 the Florida sailed only between Miami and Nassau,
making two round trips a week.
6In the representation proceeding , 120 NLRB at 1099, the statement appears that the
Florida is subject to inspection by certain United States officials and "subject to no other
inspections." However, the record here , contrary to that in the representation case, shows
that the Florida is inspected by agents of the Liberian Government
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arguing in support of their position that (1) the Act cannot be ap-
plied extraterritorially as would be required to reach the unfair labor
practices involved, (2) only the law of Liberia-that, is flag law-is
applicable to the vessel and its crew in view of its Liberian registra-
tion and ownership, and (3) the National Labor Relations Act was
not intended by Congress to apply to labor disputes between foreign
employees and .their employers. They also argue that in view of, cer-
tain national defense considerations, the Board should not assert
jurisdiction in this proceeding. The foregoing arguments were con-
sidered at length in the Board's decision in West India Fruit d
Steamship Company, Inc.,' and the conclusions reached there estab-
lish the legal framework within which the question of jurisdiction
must be decided in this case.
The facts in the present case are substantially the same in many
material aspects as those in West India. Thus, we have here a United
States enterprise operating vessels registered under the laws of a
foreign nation, maimed by predominantly alien crews, and engaged
in the "foreign commerce" of the United States as that term is defined
in Section 2 (6) of the Act. However, in West India, the owner of the
vessel and employer of the crew was a domestic corporation, while
here, it is argued, such owner and employer are foreign corporations,
i.e., Blue Steamship and Green Trading, respectively. Consequently,
the jurisdictional question which now must be decided is whether the
interposition of these Liberian corporations stands as a bar to the
jurisdiction of the Act which would clearly cover the operations under
the, rationale of the West India decision were P & 0 directly the ship-
owner and employer of the crew.
In the representation proceeding the Board found that both Blue
Steamship-and Green Trading are instrumentalities of P & 0 and
that P & 0 had full control of the vessel, was its beneficial owner,
and was in fact the employer of its crew .8 No facts have been placed
in evidence in this proceeding warranting our disturbing such find-
ings and they are hereby affirmed. Consequently, the situation now
before us is, in substance, the same as that in West India. Clearly,
under such circumstances, the foreign incorporation of the nominal
owner and operator of a vessel cannot bar the jurisdiction of the Act
over an operation otherwise within the coverage of its provisions.9
7 130 NLRB 343 As noted in footnote 10 of the West India decision , in deciding certain
jurisdictional issues present not only in that case but in the instant proceeding, full
consideration was given not only to the arguments and positions of the parties in West
India but also to those of the parties in this proceeding . Moreover , in view of the several
important jurisdictional issues raised in this proceeding but not fully presented in the
representation proceeding , we have, despite our findings in that case , considered de novo
the questions relating to jurisdiction here.
8 120 NLRB 1100 , 1101, footnote 5.
e Compare, Bartholomew v. Universe Tankships , Inc, 263 F. 2d 437, 442 ( C.A 2 1959),
cert denied 359 U.S. 1000 ; Bobolakes v. Compania Panamena Maritima San Gerissimo,
PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 13
'Therefore, we find, in accord with our decision in West India, that
the Respondents and their maritime operations subject of the com-
plaint are in, and affect, commerce within the meaning of Section
2(6) and (7) of the Act and that it will effectuate the policies of the
Act to assert jurisdiction in this case.
ORDER 10
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondents Peninsular & Occi-
dental Steamship Company and Green Trading Company, their offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Seafarers' International Union of
North America, Atlantic and Gulf District, AFL-CIO, or in any
other labor organization of their employees, by discriminating in
regard to their hire or tenure of employment, or any term or condi-,
tion of employment.
(b) Interrogating employees concerning their union affiliation or
activities in a manner violating Section 8 (a) (1) of the Act.
(c) Threatening employees with discharge for being d member of
the Union, for signing a union card, or for engaging in other union
activities.
(d) Engaging in surveillance of their employees for the purpose
of learning of their union activities.
(e) Refusing to employ or otherwise discriminating against em-
ployees because they have filed charges under the Act.
(f) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Seafarers' International Union
of North America, Atlantic and Gulf District, AFL-CIO, or any
168 F. Supp 236, 238 (D C.S.N.Y. 1958 ),; Zielinski v Empresa Hondurena De Vaporer,
113 F. Supp. 93 (D.C.S N.Y. 1953).
10 As noted above, the representation proceeding involved both the Florida and Southern
Cross and in that proceeding the Board found , in agreement with the stipulation of the
parties, that a unit composed of the crews of the two vessels constituted a unit appro-
priate for purposes of collective bargaining . However, between the hearing in the repre-
sentation proceeding and the election directed pursuant to the decision there, the Southern
,Cross was taken out of service and apparently only the crew of the Florida participated
in the election , a majority voting for the Union , and the Union was thereafter certified
as the bargaining representative for the employees in the unit therein found appropriate.
We agree with the Trial Examiner that the Respondents unlawfully refused to bargain
with the Union as the representative of its unlicensed crew . The refusal was not predi-
cated on any questions concerning the appropriateness of the unit or the Union ' s majority
status, and it was not until the hearing in this proceeding that Respondents brought to
the Board's attention that the Southern Cross was no longer in service . In these circum-
stances we find that the certified unit remains appropriate . However, the present status
of the Southern Cross cannot be finally determined on the record before us . If it has
been sold , the obligation to bargain pursuant to our order shall be limited to the employees
of the Florida
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities.
(g) Refusing to bargain collectively with Seafarers' International
Union of North America, Atlantic and Gulf District, AFL-CIO, as
the exclusive statutory bargaining representative of its employees in
the following appropriate unit: All unlicensed personnel employed
aboard the SS Florida and SS Southern Cross, excluding licensed
personell, pursers, and radio operators, and supervisors as defined in
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Abelarclo Navarra, Luis Tanlayo, Jose L. Dominguez,
Angel Maya, Juan Poveda, Jose Pena, Ubaldo Diaz, and Melciades
Castro immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or
other rights and privileges, and make each of the aforesaid employees
whole for any loss he may have suffered by reason of the Respond-
'ent's discrimination against him -in the manner set forth in the sec-
tion of the Intermediate Report entitled "The Remedy."
(b) Upon request, bargain collectively in good faith with the above-
named labor organization as the exclusive representative of all em-
ployees in the appropriate unit, and embody any understanding
reached in a signed agreement.
(c) Preserve and, upon request, make available to the Board or-
its agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,,
and all other records necessary to analyze the amounts of backpay
due the above-named employees under the terms of this Order.
(d) Post in both Spanish and English on its bulletin boards on the
SS Florida and SS Southern Cross, and at such other places as notices.
to the crews of these.vessels are normally posted and at its offices, pier,
or other shore facilities at Miami, Florida, copies of the notice at-
tached hereto marked "Appendix." 11 Copies of said notice, to .be
furnished by the Regional Director for the Twelfth Region, shall,
after being duly signed by the Respondents' authorized representa-
tive, be posted by the Respondents immediately upon receipt thereof,
in conspicuous places, including all places where notices to employees
are customarily posted, and maintained by them for a period of 60
consecutive days. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other material.
u In the event that this Order is enforced by a decree of a 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"
PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 15
(e) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps the
Respondents have taken to comply herewith.
MEMBER RODGERS, dissenting :
For the reasons stated in my dissenting opinion in Vest India
Fruit and Steamship Company, 130 NLRB 343, I do not agree with
my colleagues that policies of the Act will be effectuated by asserting
jurisdiction over the Respondent's operations. I would, therefore,
dismiss the complaint in its entirety.
CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the
consideration of the above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Seafarers' Interna-
tional Union of North America, Atlantic and Gulf District,
AFL-CIO, or in any other labor organization of our employees,
by discharging or in any other manner discriminating in regard
to their hire or tenure of employment, or any term or condition
of their employment.
WE WILL NOT refuse to employ or otherwise discriminate
against employees because they have filed charges against us
under the National Labor Relations Act.
WE WILL NOT question our employees concerning their union
membership or activities, in a manner constituting interference,
restraint, or coercion.
WE WILL NOT threaten our employees with discharge for being
members of the Seafarers' International Union of North America,
Atlantic and Gulf District, AFL-CIO, or any other union, or for
signing a union card, or for engaging in any other proper union
activities.
WE WILL NOT keep watch of our employees in order to learn if
they are engaging in union activities.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Sea-
farers' International Union of North America, Atlantic and Gulf
District, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from
such activities.
WE WILL offer the following-named employees immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights
and privileges, and make them whole for any loss of pay they
may have suffered by reason of our discrimination against them :
Melciades Castro Angel Maya
Abelardo Navarra Juan Poveda
Luis Tamayo Jose Pena
Jose L. Dominguez Ubaldo Diaz
WE WILL bargain collectively in good faith, upon request, with
the above-named labor organization as the exclusive representa-
tive of all employees in the bargaining unit described below, with
respect to grievances, labor disputes, wages, rates of pay, hours
of employment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is :
All unlicensed personnel employed aboard the SS Florida
and SS Southern Cross, excluding licensed personnel, purs-
ers, and radio operators, and supervisors as defined in the
Act.
All our employees are free to become or remain or to refrain from
becoming or remaining members of the above-named or any other
labor organization.
PENINSULAR & OCCIDENTAL STEAMSIIIP COMPANY
AND GREEN TRADING COMPANY,
Employer.
Dated--- ------------- By-------------------------------------
(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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Seafarers ' International Union
of North America , Atlantic and Gulf District , AFL-CIO, herein called the U1,non,
the General Counsel of the National Labor Relations Board, herein respectively
called the General Counsel' and the Board , by the Regional Director for the
Twelfth Region ( Tampa, Florida ), issued a complaint , dated October 2 , 1958, which
was thereafter amended at the hearing and during a recess in December 195&,
alleging therein that Peninsular & Occidental Steamship Company and Green Trading
Company, herein called the Respondent, had engaged in and was engaging in unfair
'This term specifically includes counsel for the General Counsel appearing at the
hearing.
PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 17
labor practices affecting commerce within the meaning of Section 8(a)(1), (3), (4),
and (5) of the National Labor Relations Act, as amended (61 Stat. 136), herein
called the Act.
Due to the complexity of the issues set forth in the complaint and the Respond-
ent's answer and amendments thereto, the Trial Examiner feels that it would be
better for all concerned to set forth below the allegations in the complaint under
appropriate subsections of this report, each of which will be devoted to a particular
allegation, and the Respondent's answer thereto.
On October 23, 1958, the Respondent filed its answer denying the commission of
the unfair labor practices alleged, and in addition denied that the Board had juris-
diction over either it or its employees. For reasons stated immediately above, the
Trial Examiner will discuss the Respondent's answer and amended answers below.
The Respondent also filed on October 23, 1958, a motion to dismiss the com-
plaint on the same jurisdictional grounds that it alleged in its answer. The motion
was referred to Trial Examiner Arthur E. Reyman, who denied the motion on
October 28, 1958.
Pursuant to due notice, a hearing was held November 24, 25, and 26, December
9, 10, 11, 12, and 15, 1958, and January 6, 7, 8, 9, 12, 13, and 14, 1959, at Miami,
Florida, before the duly designated Trial Examiner. The General Counsel, the
Respondent, and the Union were represented by counsel. Full opportunity to be
heard, to examine and cross-examine witnesses, to introduce pertinent evidence, to
argue orally at the conclusion of the taking of the evidence, and to file briefs was
afforded all parties. Counsel for the Union (on April 3, 1959) and counsel for the
Respondent (on April 6, 1959) filed well-drafted and comprehensive briefs on the
issues herein? They have been carefully considered by the Trial Examiner. Counsel
for the General Counsel did not file a brief with the Trial Examiner for reasons
fully set forth in the record. He did, however, read into the record a clear and
concise statement of his position in regard to the issues herein .3
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
It is obvious from the pleadings , the statements of counsel at the hearing herein,
the briefs of the Union and the Respondent, and the oral and documentary evidence
received at the hearing herein that the primary question involved herein is juris-
dictional. In order to dispose of this question the Trial Examiner feels that it is
necessary to consider the relationship between the Union and the Respondent prior
to the filing of the charges herein. In other words it is necessary to set forth herein
what is ordinarily referred to as "background evidence."
The record herein shows that the Union started its organizational drive among
the Respondent's unlicensed personnel sometime in the summer of 1957. On
November 15, 1957, the Union filed a petition for certification of representatives
with the Board's Regional Office in Tampa, Florida. Thereafter on January 15
and 16, 1958, a hearing in the matter of Peninsular & Occidental Steamship Com-
pany and Green Trading Company, Case No. 12-RC-241 (120 NLRB 1097), was
held in Miami, Florida, before Hubert B. Mintz, hearing officer. At the hearing in
the instant case the parties stipulated that the testimony of the three witnesses who
testified in the representation case should be embodied herein in toto. All were
officers of the Respondent Company. The Trial Examiner approved the stipulation.
The witnesses referred to were as follows: Kenneth Osborne, vice president and
general manager of Peninsular & Occidental Steamship Company; E. P. Pfaff, Jr.,
auditor of Green Trading Company; and Robert F. Lord, operating manager of
Green Trading Company. As indicated above, the foregoing were the only witnesses
who testified in the representation hearing, hereinafter referred to as the "R" case.
An examination of their testimony shows that it was confined to the ownership,
operation, and the status of Green Trading Company under the Liberian flag. In
other words each of the witnesses testified in support of the Company's position
2 At the request of the parties the Trial Examiner permitted the official reporter to re-
tain the exhibit file until counsel for the Union and the Respondent completed their
briefs; as a result the Trial Examiner did not receive the documentary evidence in the
case until April 23, 1959.
8 His statement will be found in the official transcript of the record at pages 859 to 871.
In the considered opinion of the Trial Examiner it is such an excellent presentation of the
issues involved herein that it merits consideration by all concerned.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Board had no jurisdiction over it, because it was registered under the
Liberian flag, and subject to the laws of Liberia and not the United States of America.
On May 23, 1958, the Board issued its Decision and Direction of Election. An
examination of the Board's Decision clearly shows that the jurisdictional issue was
carefully considered by the Board. The Trial Examiner takes official notice of the
Board 's findings and conclusions in its Decision and Direction of Election. What
transpired after the Board issued its Decision and Direction of Election in the "R"
case is well stated in the following stipulation:
Mr. SCHENERLEIN: I might ask counsel for the respondents , since on cross
examination he has referred to bringing this witness and another witness up to
an election which was held by the National Labor Relations Board, if we can
at this time stipulate to the dates of the events pertaining to those elections.
TRIAL EXAMINER: Give the case number.
Mr. SCHENERLEIN: Well, it would be a petition filed in Case 12-RC-241
involving this very same employer, said petition being filed by the Seafarers'
International Union of North America, Atlantic and Gulf District, AFL and
CIO on November 15, 1957; and further that pursuant to the hearing held in
this case, the Board issued a decision of direction of the election, which is
120 NLRB 147 [1097], which has been previously referred to in this record
earlier involving the same employer, and that pursuant to the decision and
direction of the election referred to in 120 NLRB 147 [1097], an election was
held on Thursday, June 19, 1958 among the employees of the unit found
appropriate by the Board in its decision directing the election; and as a result
of that election , the Seafarers' International Union of North America, Atlantic
and Gulf District, AFL and CIO was certified as the collective bargaining
representative of the employees and an appropriate unit was found by the Board
in 120 NLRB 147 [1097] on the 27th day of June, 1958.
Can we stipulate as to those facts?
TRIAL EXAMINER: Do you so stipulate?
Mr. STEEL: I am unwilling to stipulate that it is relevant but I am willing to
stipulate that these facts are authentic and that no further proof-
TRIAL EXAMINER: That is all he is asking.
Mr. STEEL: That no further proof need be required as to what he has just
stated. [Emphasis supplied.]
As indicated above the Trial Examiner takes official notice of the Board's decision
in the "R" case. At the hearing herein the General Counsel and counsel for the
Respondent entered into the following stipulation insofar as certain of the "jurisdic-
tional facts" are concerned.
Prior to August 1955, the SS. Florida and SS. Southern Cross 2 were owned
and operated by P. & 0, a Connecticut Corporation, and sailed under the
American Flag. The Florida plied between Miami and Havana, Cuba; the
Southern Cross between Tampa, Key West and Havana. Both ships carried
tourists as well as cargo. Operations of the two ships became increasingly un-
profitable, reaching a half million dollar loss in 1954. The reasons for the
loss were, according to the Employers, the decline in tourist trade and the
competition of foreign flag ships. Having failed to obtain a Federal subsidy,
P. & O. was faced with the necessity of cutting operating expenses and especially
crew wages. The Petitioner, who at the time represented the unlicensed per-
sonnel on the two ships, refused to agree to a wage cut. As long as the ships
were under American registry, the law required that 75 percent of the crew be
composed of American citizens . P. & O. therefore, decided to transfer the ships
to foreign registry in order, as it conceded at the hearing, to be able to hire
foreign crews whose wages in at least some classifications were about half that
being paid the American seamen . The United States Maritime Commission,
upon P. & O.'s application, authorized transfer of the ships. In August 1955,
P & O. organized two Liberian corporations-the White Steamship Co. (herein-
after called White) and the Blue Steamship Co. (hereinafter called Blue)-each
wholly owned by P. & O. Thereafter, on September 3, P. & O. for nominal
consideration transferred the two ships to White and Blue, which corporations
registered the ships under the laws of Liberia. During this same period, P. & O.
had its attorneys organize a third Liberian corporation, the Green Trading Co.
The attorneys and some of their employees, acting on behalf of P. & 0., became
the officers, directors, and stockholders of Green Trading.
2 Prior to the transfer of registry in 1955, the Southern Cross was named SS Cuba
PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 19
On August 18, 1955, the Green Trading Company chartered bareboat the
Florida and Southern Cross from Blue and White and on the same day entered
into a time subcharter with P. & O. for operation of the ships... .
The ships were changed to Liberian registry in September 1955. The
American crew of the Florida was then discharged and in a day or so a new,
predominantly alien crew was hired. The Southern Cross was in dry dock at
the time of transfer of registery and, thus, had no crew. Upon being placed
back in commission, a predominantly alien crew was hired. At the time of
the hearing herein the unlicensed crew of 113 on the Florida was composed of
3.5 percent Americans, 14.2 percent resident aliens, and 82.3 percent non-
resident aliens. The corresponding breakdown for the Southern Cross was,
out of a crew of 76, 10.6 percent Americans, 9.2 percent resident aliens and
80.2 percent non-resident aliens. These unlicensed personnel were recruited
in a number of areas. However, 86 percent of those in the Southern Cross's
crew signed ship's articles in the United States, while only some 33 percent of
the Florida's crew signed on in the United States. Although Green Trading is
required under the time sub-charter to hire the crew members, Green Trading
actually operates through a Captain Lord, its operating manager, who is also
P. & O. 's Marine Superintendent and is on P. & O. 's payroll only. Moreover,
the wage scales for the vessels, when established, were submitted to P. & O's
vice president and general manager for his approval. He also has been con-
sulted before any changes were made in the scale. Furthermore, P. & O. pays
medical bills for crew members injured aboard ship and handles immigration
matters concerning the alien members of the crew.
While on board ship, the crew is under the supervision of the ship's master and
other officers. Under the shipping articles signed by each crewman the "crew
agrees to conduct themselves in an orderly, faithful and sober manner, in ful-
fillment of their duties: obedient to the order, regulation, and instructions of
the captain . . . and of the officers ... . The masters of both ships were
hired by P. & O. and the other officers are hired by Captain Lord and Captain
Owen, both on P. & O.'s payroll, and both representing P. & O's vice president
in hiring these officers. It might also be noted here that these officers are pre-
dominantly American citizens and carry for the most part American licenses.
There has been no change in the operations of the vessels since transfer of
registry. They operate regularly out of Miami, Florida, and both their passen-
gers and cargo originate for the most part at that port. The Southern Cross
takes on fuel in Venezuela, but otherwise the ships are principally provisioned
at Miami... .
Under the terms of the bareboat charter, Blue and White have no control
over the vessels and their crews, but pay a tonnage tax on the vessels to the
Liberian government.. .
None of the companies maintain an office in Liberia. There is some evidence
that Green has or has had an office in Cuba for hiring crew members. How-
ever, it has a business office in Miami at the offices of P. & O.'s attorney. Its
operating manager is located on Pier 2, Miami which is P. & O. 's address and
which carries P & O's name only. The comptroller for P. & 0., apart from
being a director of both Blue and White, handles federal tax matters for Green
Trading as well as for P. & O. and the two steamship companies.
In addition to its contention that the Board isswithout jurisdiction over its opera-
tions,4 the Respondent further contends, as it did in the "R" case, that its employees
are not "employees" within the meaning of the Act, because they are aliens. While
it is true that the record clearly shows that at all times material herein they were
Cubans, nevertheless the Trial Examiner is convinced and finds that the position of
the Respondent in this regard is without merit, for the reason that the Board disposed
of this question in the "R" case. Its finding in this regard was as follows:
In contesting the Board's jurisdiction, the Employers rely upon the facts that
Green Trading which they contend is the sole employer of the employees in-
volved, is a foreign corporation and that the employees are predominantly
aliens. In support of their position the Employers argue that the Act does not
apply to a foreign ship and its foreign crew. However under the circumstances
of this case we find no merit in the position of the Employers.
4 The parties further stipulated in regard to certain changes in the operations of the
vessels. See below
614913-62-vol 132-3
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner desires to point out at this time that he is bound by the
Board's findings in the "R" case, in the absence of newly discovered evidence that
was not available to the Respondent herein at the time of the hearing in the "R" case
or new and changed conditions that may have arisen since the Board's Decision and
Direction of Election in that case. The Board's position in this regard is well stated
in a recent case, National Van Lines, 123 NLRB 1272.5 The following excerpt
therefrom follows below:
On April 16, 1957, the Board issued a Decision and Direction of Election in
Case No. 21-RC-4426, in which it found, contrary to the contention of the
Respondent, that the Respondent's contract drivers were employees within the
meaning of the Act, and not independent contractors.2 On June 6, 1958, the
Board issued a Supplemental Decision and Certification of Representatives in
that case, in which it sustained the challenges to six ballots cast in the repre-
sentation election, and certified the Union as the bargaining agent for the
Respondent's contract drivers? On that same date, the Union requested that
the Respondent bargain, but by answer on July 17, 1958, the Respondent re-
fused to bargain on the ground that the Board's decision in the representation
case was erroneous as a matter of law, and that in any event there were
changed circumstances which rendered that decision inapplicable. The Trial
Examiner found that such refusal to bargain was a violation of Section 8(a) (5)
of the Act. [Emphasis supplied.]
The Respondent contends that: (1) The Trial Examiner erred by refusing
to admit into evidence and review the entire record of the proceedings in the
prior representation case; (2) the Trial Examiner erred by placing the burden
of disproving the allegations of the complaint upon the Respondent; and
(3) the Respondent has not violated Section 8(a)(5) of the Act by its refusal
to bargain, because the contract drivers involved are independent contractors,
and not employees, within the meaning of Section 2(3) of the Act.4
With respect to contention (1), the Board has held, in a similar situation
where it found alleged independent contractors to be employees in a prior
representation case, that the Trial Examiner in the subsequent refusal-to-bargain
case with respect to such employees properly refused to admit into evidence or
review the record in the prior representation case, because the Trial Examiner
was bound by the Board's finding of employee status in the representation case,
and could only consider evidence which might show a subsequent change in
such status.5 As there stated, in the absence of evidence of changes in the facts
surrounding a prior unit determination, or the presentation of evidence un-
available to a respondent in the prior representation proceeding, the Board,
with the approval of the courts, has uniformly refused to redetermine such
issues in an unfair labor practice proceedings Moreover, contrary to the con-
tention of the Respondent, Section 9(d) of the Act does not require a Trial
Examiner in an unfair labor practice case to admit into evidence and review a
prior representation case, but only requires that upon petition for court en-
forcement or review of the unfair labor practice case, the record in the repre-
sentation case be included as part of the entire record which must be filed in
the case? [Emphasis supplied.]
2 National Van Lines, 117 NLRB 1213.
3 National Van Lines, 120 NLRB 1343.
4 As they have already been considered and rejected in the prior representation
case, we shall not consider here the Respondent's further contentions that (1) no
unit appropriate for purposes of collective bargaining exists in the Board's Twenty-
first Region, and (2 ) the Regional Director's refusal to open and count the six
challenged ballots cast in the election in the representation case was an abuse of
discretion which resulted in a nonrepresentative vote in the election
8 United Insurance Company, 122 NLRB 911, Intermediate Report, section B 2.
6 Ibid , and cases there cited.
'Thus, Section 9(d) provides: "Whenever an order of the Board made pursuant
to section 10(c) is based in whole or in part upon facts certified following an investi-
gation pursuant to subsection (c) of this section and there is a petition for the
enforcement or review of such order, such certification and the record of such Investi-
gation shall be included in the transcript of the entire record required to be filed
under section 10(e) or 10(f), and thereupon the decree of the court enforcing,
modifying, or setting aside in whole or in part the order of the Board shall be made
and entered upon the pleadings, testimony, and proceedings set forth in such
transcript."
5 See also Plant City Welding and Tank Company, 123 NLRB 1140.
PENINSULAR„&f,OCCIDENTAL:STEAMSHIP,CO.p,TETC. 21
Contrary to contention; (2), the Trial- Examiner did' not place the burden of
disproving the allegations of the complaint upon the Respondent . In the similar
United Insurance case, supra, the Board held that once the General Counsel
had shown the certification of the union in the representation case, and a subse-
quent request and refusal to bargain, the General Counsel had established a
prima facie case of a violation of section 8(a) (5); and that even assuming that
there was a further burden on the General Counsel to show the employee status
of the alleged' independent contractors, that burden was met by the Board's
finding of employee status in the prior representation case, and the well-
established legal principle that a state of affairs once shown to exist is pre-
sumed to continue until the contrary. is shown.8 In accord with that holding,
the Trial Examiner here properly found that: "The Board having found in its
Decision [in the representation case] that the contract drivers were employees,
the burden was upon the Respondent in this proceeding to establish that the
circumstances upon which that decision was based no longer existed." Such
finding did not place any burden of disproving the allegations of the complaint
upon the Respondent, but only placed upon the Respondent the burden of re-
butting the presumption which had been established that the contract drivers
were still in an employee status. The General Counsel having established this
presumption and the remainder of his -prima facie case, the Trial Examiner
properly placed the burden of going forward, and not .the burden of proof,
upon the Respondent.
8 Ibid ., Intermediate Report, section B 3, and cases cited.
Insofar as this record is concerned the only new or changed condition in the
Respondent's operations is found in a stipulation of the parties regarding the with-
drawal of the SS Southern Cross from service, and placing her in drydock for sale,
and a change in the schedule of the SS Florida. The stipulation follows below: 8
TRIAL EXAMINER: All right. Does that complete your stipulation on
jurisdiction?
Mr. SCHENERLEIN: And with respect to the first sentence in the same para-
graph, which is the second paragraph on page 4, where it says, "There has been
no change in the operations of the vessels since transfer of registry. . ." Mr.
Steel will state what the operations of the vessels have been. It appears that
we'll incorporate that as part of the stipulation.
TRIAL EXAMINER: Mr. Steel, will you make a statement as to the stipulation
proposed by General Counsel?
Mr. STEEL: Yes. First, I would like to state what we are stipulating to is
commencing with the second paragraph under section designated "1" of that
decision , commencing with the second paragraph through the next to the last
paragraph before that portion of the decision designated "A," the employer.
Now, with reference to the statement in the Board's decision, there has been
no change in the operations of the vessels since transfer of registry. They
operate regularly out of Miami, Florida, and both their passengers and cargo
originate , for the most part , at that port.
With reference to those two statements I would like to state the following:
The trade route of the "Southern Cross" was changed, and I do not know
the exact date, but not too long after August of 1955, trom Tampa, Key West
and Havana to a route of Miami, Venezuela, Dutch West Indies and return.
As to the SS "Florida," she operated from September, 1955, through 1956
on a thrice-weekly run trom Miami to Havana. Well, she would leave Miami
each Friday night at five p.m., and arriving Havana at approximately eight a.m.,
on Saturday morning.
She would depart from Havana at five p.m., Sunday night and arrive at
Miami at eight a.m., Monday morning.
She would depart from Miami at live p.m., on Monday night and arrive at
Havana at eight a.m., Tuesday.
She would depart from Havana at five p.m., Tuesday, arrive Miami eight a.m.,
Wednesday.
She would depart from Miami at five p in., Wednesday and arrive at Havana
at eight a in., Thursday; then depart Havana five p.m., Thursday and arrive
Miami eight a.m., Friday.
On or a few days after January 1st, 1957, the trade route of the SS "Florida"
was changed in one respect. After that time she would depart from Miami at
8 This stipulation should be considered along with the one set forth above, which is
concerned with certain excerpts from the Board's Decision in the "It" case.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
five p.m., on Friday and arrive at Nassau. at. approximately eight a.m., on
Saturday; then depart from Nassau at five p.m.; on Sunday, and arrive at Miami
at eight a.m., Monday.
The remaining two weekly trips to Havana continue. That continued until
after the annual dry docking of the "Florida" in September of 1957. After the
dry docking the schedule of the SS "Florida" was this:
-Leave Miami five p.m., Friday; arrive Nassau eight a.m., Saturday.
Depart Nassau five p.m., Sunday; arrive Miami eight a.m., Monday.
Depart from Miami at five p.m., on Monday; arrive Havana eight a.m.,
Tuesday.
Leave Havana five p.m., Thursday; arrive Miami eight a.m., Friday.
That continued through November 4, 1957. For the next two weeks in
November, 1957, the "Florida" made only one trip per week, and that was to
Nassau, departing Miami five p.m., Friday; arriving Nassau eight a.m., Saturday.
Departing Nassau five p.m., Sunday; arriving Miami eight a.m., Monday.
Commencing around the 15th to the 18th of November, 1957, the schedule
was to leave Miami five p.m., Friday, arrive Nassau eight a.m., Saturday; de-
part Nassau five p.m., Sunday, arrive Miami eight a.m., Monday.
Depart Miami five p.m., Monday, arrive Nassau eight a.m., Tuesday.
Depart Nassau five p.m., Wednesday; arrive Miami eight a.m., Thursday.
.She has continued on this trade route and schedule since.
The SS "Southern Cross," due to losses, was taken out of service, and has
been in dry dock and up for sale since, I believe it was, sometime in February
of 1958.
The only testimony offered by the Respondent at the hearing herein in support of
its position on the jurisdictional question was that of Albert J. Rudick, Deputy
Commissioner, Maritime Affairs for the Republic of Liberia.
Rudick's offices are in New York City. He was born, raised, and educated in the
United States of America, and at the time of the hearing herein still retained his
American citizenship. He testified at great length at the hearing herein.? The Trial
Examiner has thoroughly considered his testimony and the numerous exhibits that
were offered and received in evidence during the course of his testimony. Quite
frankly the Trial Examiner is unable to find in his testimony any evidence that would
justify his recommending to the Board that it change its position isofar as its findings
in regard to its jurisdiction over the Respondent and its employees is concerned.
Suffice it to say that he was a pleasant and cooperative witness, and on the whole his
testimony was interesting and informative to all who had the privilege of hearing
him testify.
Since the hearing was closed on January 14, 1959, there have been at least two
cases decided by the U.S. district courts which in the considered opinion of the
Trial Examiner bolster the Board's reasoning in reaching its decision to assert juris-
diction over the Respondent in the "R" case. These cases will be discussed below.
The first case that the Trial Examiner has reference to is Afran Transport Co. v.
Maritime Union, U.S. District Court, Southern District of New York, No. 140-156,
December 19, 1958, 43 LRRM 2311, January 5, 1959. In that case the plaintiff,
that is the shipowners, herein referred to- as Afran, sought an injunction against
threatened picketing and secondary boycott by the unions. The injunction was
denied by District Judge Bryan who heard the case. The facts before the court in
this case were almost identical with those involved herein insofar as the jurisdic-
tional question is concerned. The shipowners were American corporations. The
following pertinent excerpt from Judge Bryan's opinion follows below:
[SUPPORTING AFFIDAVITS]
The complaint is supplemented by affidavits which in essence document the
allegations of the complaint with respect to the threatened acts of the defendants.
It is stated that the plaintiff corporations are primarily owned by leading United
States oil and bulk carrier companies, and that these vessels under foreign
registry and carrying so-called "flags of convenience" are considered by the
State and Defense Departments to be a valuable adjunct to the United States
merchant marine in times of war or emergency. The affidavits say that the
transfer of American vessels to the Liberian and Panamanian flags has been
encouraged by the policy of the United States and that the vessels, many of
which have been newly constructed in American yards, represent very large in-
Two hundred and eighty-two pages.
PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 23
vestments by American corporations. -It is pointed out that industrial carriers
are not eligible for the subsidies, which are given by the United States to
American flag liner operations in the foreign trade, a subsidy which amounted
to some $120,000,000 in 1957. ,It is stated:
The subsidy is measured principally by the difference between foreign
crew wages and American crew wages which are the highest in the world.
Because of this all bulk cargoes, such as petroleum or ore, coming to the
United States from overseas are transported to American refineries and
mills largely by foreign flag ships.
It is stated that the unlicensed personnel of plaintiffs' vessels are aliens re-
cruited in foreign countries, largely in Italy,. and are employed under foreign
articles. The wages and working conditions of such personnel aboard plaintiffs'
vessels are said to be as high or higher than those of their European flag
counterparts. The plaintiffs insist that there is no dispute or controversy be-
tween them and their personnel , numbers of whom are union represented.
The defendant Unions state in their opposing affidavits that the objective of
their protest is directly concerned with preserving the present wages and work-
ing standards of the merchant seamen on American vessels whom they repre-
sent . They say that their members have a direct stake in the wages and working
standards of plaintiffs' employees since large numbers of American ships have
been transferred to foreign registry to the detriment of American seamen with
resultant loss of job opportunities.
[FOREIGN FLAGS]
The defendants describe the "flags of convenience " or "flags of necessity"
which these ships fly as "runaway flags" and assert that they are a device by the
American interest who control the plaintiff corporations to avoid the necessity
of entering into American collective bargaining agreements with the crews of
such vessels or the payment of American seamen 's wages. It is stated, for
example, that the Liberian merchant fleet, most of which is American owned
or American financed, now totals almost 1,000 ships, totaling some sixteen
million tons, and is the second largest merchant fleet in the world. It is alleged
that more than 500 United States flag vessels have been transferred to Liberian
registry since 1953, involving the loss of 16,000 jobs to American seamen, and
that additional transfers will further impinge upon the job opportunities, wages
and standards of their members. The defendant Unions have collective bargain-
ing contracts with various oil companies who concededly are the parent corpora-
tions of these plaintiffs, and stress the danger of the depression of wages and
working conditions enjoyed by American seamen through the much less expen-
sive non-union wages and inferior working conditions aboard the vessels flying
the so-called "runaway flags."
Plaintiffs have moved for a temporary injunction restraining the defendants
from carrying out their threatened plan of action pending the hearing and
determination of this suit.'
The plaintiffs' theory is that the actions of the defendants in concert with
the ITF constitute a conspiracy in violation of the Sherman Anti-Trust Act to
restrain the foreign commerce of the United States and irreparably to damage
the plaintiffs in their business. The defendants, on the other hand, contend that
their actions constitute merely peaceful protest and picketing in the course of a
controversy arising out of a labor dispute which is free from any, injunctive
interference by the courts under the provisions of the Norris-LaGuardia Act
and that, if any such relief is obtainable, it may be obtained only on application
of the National Labor Relations Board pursuant to the Taft-Hartley Act.
'At the outset it should be noted that the treaty between the United States and
the Republic of Liberia which is relied on by the Liberian plaintiffs does not confer
upon them or upon their vessels any greater rights than those of American corpora-
tions or vessels. It goes no farther than to place them on a parity with American
corporations and vessels in the respects enumerated by the treaty. Though no similar
treaty between the United States and the Republic of Panama has been shown to
exist, I will assume that the Panamanian plaintiffs have the same rights as the
Liberian plaintiffs.
The court then goes on and distinguishes the facts as alleged in the supporting
affidavits of the plaintiffs in the Afran case and the Benz case, which counsel for
the Respondent herein cites in his brief in support of its position on the jurisdictional
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questions In the Afran case the plaintiffs contended they could not secure the aid
they sought under the National Labor Relations Act and 'cited the Benz case in sup-
port of their contention in this regard. As to this contention Judge Bryan said:
The plaintiffs claim that under the Benz case they cannot invoke the aid of
the National Labor Relations Board because the Taft-Hartley Act has no appli-
cation to them. Whether or not this is so under the present state of facts is by
no means free from doubt. Indeed,-the defendants argue that the case of
Peninsular and Occidental S.S. Co., 42 LRRM 1113, before the National Labor
Relations Board indicates that the Board would take such. jurisdiction in the
light of the conceded facts here showing that the plaintiff corporations were
controlled by American corporations. Moreover, such cases as Bobolakis v.
Compania Panama, D.C.S.D.N.Y., Civil 135-97, decided by my brother Kauf-
man on November 18, 1958, Lauritzen v. Larsen, 345 U.S: 571, and Gerradin v.
United Fruit Co., 2 Cir., 60 F. 2d 927, cited, by him there, give some color to
the claim that majority ownership and control by Americans of the corporate
owners of foreign vessels might make even such statutes as the Taft-Hartley
Act applicable to such vessels. Moreover, it may well be that" the treaty be-
tween the United States and Liberia, which gives Liberian vessels the, same
rights as American vessels in American ports, might ,lead to ,a similar `result, at
least in so far as the right of the Liberian plaintiffs, to seek the aid of the
National Labor Relations Board is concerned.
[JURISDICTION OF NLRB]
But it is unnecessary to decide this question. If the plaintiffs have the right
to seek the aid of the National Labor Relations Board they have not done so.
The subject matter of the injunctive relief which plaintiffs seek is then within
the exclusive jurisdiction of the Board and I have no right to grant such relief
except at the instance of the Board.
Conversely, if the plaintiffs have no right to appeal to the Board, they are
plainly not within the class of those entitled to protection of the Taft-Hartley
Act. For that Act provides that the only, remedy against the unfair labor
practices which it condemns is through the Board. If the plaintiffs, as they
claim , cannot avail themselves of that procedure then they are squarely up
against the provisions of 'the Norris-LaGuardia Act and do not come within
the narrow exception to it thus provided in Taft-Hartley.
The plaintiffs are therefore in the position either of being barred from relief
because they did not follow the procedure prescribed by the Taft-Hartley Act
or because they could not follow such procedure. There is nothing by way of
statute or decision which would authorize this court to issue an injunction to
restrain the secondary boycott (assuming one exists here) arising out of a labor
dispute except through the Taft-Hartley procedure. Any other form of injunc-
tive relief is prohibited by Norris-LaGuardia.
Judge Bryan then concludes as follows:
[SUMMARY]
Thus I conclude, on the basis of all the facts which are now before me, that
the'plaintiffs have not shown that they are entitled to the preliminary injunction
which they seek. To summarize, as far as now appears;' this case involves a
labor dispute within the meaning of the Norris-LaGuardia Act. There is no
showing that any fraud or violence -has been or will be resorted to so as to
bring the case within those sections of Norris-LaGuardia which authorize in-
junctive relief by the courts under such exceptional circumstances.
Nothing has been shown which would exclude the defendant Unions from
the protection of the Norris-LaGuardia Act and bring them within the provi-
sions of the Sherman Act because they are combining with non-labor or busi-
ness groups in restraint of trade.
Plaintiffs cannot avail themselves of the provisions of the Taft-Hartley Act
against secondary boycotts since they either have not followed or cannot follow
the procedure prescribed by that Act which is the exclusive remedy against
such proscribed conduct.
They thus have failed to establish the basic essential to the relief which they
seek, which is that this court has jurisdiction to grant it. Their motion for a
preliminary injunction must therefore be denied. [Emphasis supplied.]
0
8 Benz v. Companie Naviera Hidalzo, 353 US 138, 39 LRRM 2636 See Respondent's
brief at pages 21 and 26. See also Board's Decision and Direction of Election, 120 NLRB
1097 , footnote 8
PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 25
The second case that the Trial Examiner considers in point is Fianza Cia Nav.
S.A. et al .9 v. Benz et al., No. 10101 , December 4, 1958, U.S. District Court , District
of Oregon, 43 LRRM 2682, dated March 23, 1959. In that case which was heard
by District Judge East , the defendants-that is, the union-relied to a great extent
on the Afran case which has been discussed above. The facts developed in the
Fianza case showed an entirely different situation than those before the court in the
Afran case. It must be borne in mind that in the Afran case, the actual owners of
the ships were American corporations who had registered them under the Liberian
flag. In the Fianza case the ownership was found by the court to be lodged in bona
fide foreign corporations . There were two plaintiffs in the Fianza case, one a
German corporation and the other a Panama corporation . The court found that the
German corporation was truly foreign and that there was no direct showing in the
evidence adduced before the court "... as to who the stockholders of this corpora-
tion are,'° neither on behalf of plaintiff nor on behalf of the defendants who were
required to show cause ."" As to the German corporation the court found as in-
dicated above that its ownership was truly foreign and not American . Even though
the court 's finding in this regard will lengthen this report the Trial Examiner feels
that due to the importance of the instant case the following excerpt from Judge
East's decision should be set forth herein . Primarily because it shows the court's
reasoning as regards the status of ships that are truly foreign and those which are in
fact American owned and have been registered under foreign flags, which of course
is pertinent to the issues herein.
[FOREIGN VESSEL]
Now, the first plaintiff indicated is a corporation of Panama . There is no
direct showing in the evidence as to who the stockholders of this corporation
are, neither on behalf of plaintiff nor on behalf of the defendants who were
required to show cause.
Now, this Court takes Judicial knowledge of the laws of Panama, and is
bound to take the presumption or the inference, at least , that all business trans-
actions had are bona fide and in due course.
The second plaintiff in the case is a German corporation who is the charterer
of the vessel on this given voyage. Evidence shows that she came here under
ballast and that she was to be stowed with a cargo of barley to be delivered to
a port in Germany . There seems to be no quarrel , no contention made by the
defendants that any of the stockholders of the German corporation are of
American nationality . The evidence shows that the operator of the vessel is a
corporation of England or, at least, an organization of some type in England
with its office in London . And the testimony of the Mate and the Master of
the vessel indicate that the principals of that corporation or organization, what-
ever it be, are of Greek nationality. The crew of this vessel on this voyage
are of Greek nationality with the exception of one, the radio operator, who is
an Englishman.
The crew and the officers some two months ago signed Articles of the voyage
at Rotterdam. And the only testimony or evidence before the Court is that
those Articles were in conformity with the laws of Greece and that the wage
scale and the conditions , working conditions , of the officers and the crew were
in conformity with the wages and working conditions established by the labor
unions of Greece.
There is no showing as to who the stockholders of this English organization
or corporation are other than the oral testimony of these two officers that they
were of Greek nationality. One other thing: The testimony shows that this
vessel's keel was laid and she was built and launched in Japan some two years
ago. The record is absolutely devoid of any evidence on behalf of any of the
parties that she was ever owned by American interests, she was ever chartered
by American interests, or that she was ever operated by American interests
with the one exception of the port husband agent here in Portland who was
hired, as he said , by telegraph instructions from London.
So I am content to find on the record before me that this vessel is a foreign
vessel; that she is owned , she is controlled, that she is operated by an entire
foreign interest ; that no national of the United States has any interest in this
voyage other than the sellers of the cargo.
9 Herein referred to as Flanza.
10 The Panama corporation.
11 The defendants were unions and their officers.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Therefore, unlike the New York case this Court is content to hold that this
vessel is not a runaway flag; that she is operating when she came to this port
under treaty approved by Congress; that there was no competition, and that
there was no market for any American seaman as a member of her crew.
That the court in the Fianza case was concerned with the true ownership of the
vessels is well illustrated in the following excerpt from the court 's decision:
[RUNAWAY FLAGS]
And that movement was advertised, as the evidence shows in this case, through
the media of trade journals of the union and verbal conversation of the union
members, that a four-day protest would be staged against this practice of
vessels being and carrying what seems to be in the vernacular "runaway flags";
in other words , meaning that by subterfuge the true ownership and nationality
of a vessel as disguised by having her registered and carrying the flag of some
foreign country. And there seems to have been three countries that had been
picked out to be utilized by these so-called runaway flagships, being the
Panamanian flag, Costa Rica , and, as we are dealing here , Liberia, or the
Liberian flag.
Now, I have reached the conclusion that in determining the relationship of
these parties that what flag any given bottom carries is not of importance. The
question is: Who are the true owners, the true operators and the true charterers
of any given vessel upon any given voyage? If it should develop that the
owners, operators , or charterers are engaged in some sort of a conspiracy or
some sort of activity that tends to relieve them of their true obligation of deal-
ing collectively with bargaining agents of American seamen, then the American
seaman has had a wrong committed against him. If, on the other hand, the
true ownership and the true operator or the true charterer of any given vessel
on any given voyage is purely foreign, none of them are in a position to deal
collectively, with any bargaining agent representing any American seaman, and
the American seamen have no complaint; they are not in the market. [Emphasis
supplied.]
Counsel for the Respondent also cites Air Line Stewards and Stewardesses Associa-
tion v. Northwest Airlines, Inc., 162 F. 2d 684, as an authority for its position as
regards the jurisdictional question. Since the Trial Examiner received the Respond-
ent's brief on April 6, 1959, the United States Court of Appeals, Eighth Circuit,
has considered this case and sustained the U.S. district court's findings with modifi-
cations.12 The Trial Examiner has considered this case and is convinced and finds
that it is not applicable to the issues herein for the reason stated below:
RAILWAY LABOR ACT
-Applicability-Airline employees in foreign countries
103.101 103.105
Railway Labor Act, as applicable to air carriers, does not cover employees
of United States airline who are hired and perform services entirely outside
the United States and its territories . Although airline engages in flight opera-
tions within continental United States, the doctrine of "Yaw of the flag" will
not be applied to give extraterritorial effect to Railway Labor Act, since Congress
specifically has not done so, and Interstate Commerce Act, which is incorpo-
rated by reference into Railway Labor Act, definitely limits applicability to
such transportation as takes place within the United States.
Appeal from the U.S. District Court for the District of Minnesota (42
LRRM 2479, 162 F. Supp. 684). Affirmed.
While it is true that the Trial Examiner is required to follow the Board's findings
in the "R" case particularly as regards the jurisdictional question (except as noted
above as regards "newly discovered evidence"), nevertheless where as here the prin-
cipal question before him involves that question as is amply demonstrated in the
record and the briefs of the parties, he feels that the parties herein are entitled to
full and frank discussion of the issues which they have raised, or relied upon in
support of their respective positions. For this reason he has devoted considerable
time in drafting of this report and thereby unquestionably lengthened it considerably.
As indicated above, the Respondent in the "R" case and by statements of its
counsel at the hearing herein and in his brief admits that the corporate manipula-
18 See 44 LRRM 21'89, dated June 8, 1959.
PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 27
tions and transfer of registry of its ships to Liberia was economic. Indeed counsel
for the Respondent in his brief stated in substance that this was done to escape the
wage and other objections required of American-flag ships. All of the corporate
transactions mentioned above were before the Board in the "R" case and were given
due consideration. As the Trial Examiner sees it the Board like the courts in the
above-cited cases followed the age-old maxim that "Equity looks to the substance
and not to the form" in reaching its ultimate decision of the jurisdictional question.
In view of all of the foregoing the Trial Examiner finds as did the Board in the
"R" case that the Board has jurisdiction over the Respondent and its employees.
1. RESPONDENT 'S BUSINESS OPERATIONS
The complaint alleges, and the Board found in Case No. 12-RC-241, that:
1. Peninsular & Occidental Steamship Co., hereinafter referred to as Respond-
ent, is a Connecticut corporation with principal offices and place of business
located in Miami, Florida, and is engaged in the business of transporting pas-
sengers and cargo from ports in Florida to ports located outside the United
States.
2. Respondent annually derives revenue from the transportation of passengers
and cargo, as described in paragraph 1 above, in excess of $2,000,000.
3. Respondent, in the course and conduct of its business, described above,
established and operated a Liberian corporation named the Green Trading
Corporation, as the instrumentality for the employment of the employees named
in paragraph 6 below.13
Upon all of the foregoing, the undersigned finds that during all times material
herein Respondent was, and now is, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act
for the Board to reassert jurisdiction in this proceeding.
It. THE LABOR ORGANIZATIONS INVOLVED
Seafarers ' International Union of North America, Atlantic and Gulf District,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The alleged violations of Section 8(a)(1) and (3) of the Act
The complaint alleges that Peninsular & Occidental Steamship Company, herein-
after referred to as Respondent, by and through its instrumentality, Green Trading
Company, agents, and representatives did, in mid-November 1957,14 discharge em-
ployees Abelardo Navarro, Luis Tamayo, Jose L. Dominguez, Angel Maya, Juan
Poveda, Jose Pena, and Ubaldo Diaz, and has at all times since failed and refused
to reinstate the aforenamed employees to their former or substantially equivalent
positions of employment, for the reason that they, and each of them, joined or
assisted the Union, or engaged in other concerted activities for the purpose of
collective bargaining or other mutual aid or -protection; that Respondent, by and
through its instrumentality, agents, and representatives, including Jesus Hernandez
and Mario Aguero Reyes, at times, mainly in October and November 1957, did
interrogate employees as to their membership in the Union and did threaten dis-
charge for union activity; that Respondent did, on or about July 19, 1957, discharge
Angel Maya because he was seen talking to an agent of the Union, and did a few
days thereafter reinstate Maya on the condition of his refraining from union activity;
and that Respondent did in the latter part of October 1957 discharge or threaten
discharge to Abelardo Navarro, Malcrados Castro, Jose Dominguez, and others be-
cause they had signed cards for the Union, or engaged in union activity.
The Respondent in its answer alleged as follows: (1) ". . . Peninsular & Occi-
dental Steamship Co. denies that it by and through its instrumentalities, agents and
representatives discharged the named employees or has failed and refused to re-
1S The Respondent admitted in its answer all of the allegations In the complaint as
regards its business operations except certain allegations in paragraph 3 of the complaint.
Its answer to this particular allegation was as follows :
Answering paragraph 3 they admit that the Green Trading Company is a "Liberian
corporation established by the Peninsular & Occidental Steamship Co but deny that
the Green Trading Company is an Instrumentality "
14 The exact dates of the discharges will be set forth below
d
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instate them ; Green Trading Co., admits that it discharged such employees but not
as an instrumentality , agent or representative of Peninsular & Occidental Steamship
Company; that it had no knowledge of the union affiliation of the discriminatees
named in the complaint and that Green Trading Company discharged those named
in the complaint for cause, to wit: (1) Navarro, Tamayo, Diaz, and Castro were
discharged because a reduction in passenger load necessitated a reduction in crew
strength in the'steward's department; (2) that Dominguez was discharged for re-
fusal to obey lawful orders of his superior; and (3) Maya, Poveda, and Pena were
discharged for unsatisfactory attitude and performance; and denied the commission
of the other unfair labor practices alleged in the complaint.
At the hearing herein Castro, Diaz, Navarro, Poveda, and Pena testified on be-
half of the General Counsel. Dominguez and Tamayo, of whom more anon,
appeared at the place of hearing, but refused to testify. Since both of these alleged
discriminatees are involved in the 8(a)(4) allegation the Trial Examiner will dis-
cuss the "problem" herein as to them below.
The record clearly shows that the Respondent abandoned its position that the
alleged discriminatees were discharged for cause at the hearing herein, and chose to
rely on the same defense it advanced in the "R" case, in its motion to dismiss the
complaint, and as alleged in its answer, that: (1) The Board has no jurisdiction
over the subject matter, and (2) that the discriminatees named in the complaint
. are nationals of countries other than the United States and are employed
by Green Trading Company, a citizen of Liberia." All of which have been discussed
and disposed of herein, supra.
The Respondent did not choose to call any witnesses to rebut the testimony of
Castro, Diaz, Navarro, Poveda, and Pena. Hence their testimony in support of the
General Counsel's case-in-chief stands uncontradicted and undenied in the record.
Each of them impressed the Trial Examiner as honest and forthright witnesses, and
their testimony in his considered opinion was in nowise shaken by vigorous and ex-
tensive cross-examination by counsel for the Respondent. In the circumstances the
Trial Examiner credits the testimony of each of these witnesses in its entirety. Con-
sequently he sees no necessity to set forth the testimony in detail of each regarding
certain incidents that were common to all.
To begin with the record shows that all of the alleged discriminatees were Cubans.
At the time of the hearing herein Castro, Diaz, Dominguez, Tamayo, Poveda, and
Pena were Cuban citizens and maintained their residences in and around Havana,
Cuba. Maya and Navarro lived in or around Miami, Florida, and were "registered
aliens."
The record indicates that the Union started its organizational drive among the
Respondent's unlicensed personnel sometime during the summer of 1957. That the
Respondent was aware of the union activities of its employees as early as July 1957
is evidenced by the testimony of Juan Poveda, an employee in the engineroom on the
SS Florida, in regard to the discharge of Angel Maya on July 7, 1957.15 Accord-
ing to Poveda's uncontradicted and undenied testimony which is fully credited by the
Trial Examiner he had a conversation (in regard to Maya sometime in July 1957)
with Jesus Hernandez, whom he and other witnesses who testified at the hearing
herein referred to Hernandez as ". . . the second representative . . . of the company
in Havana." In the circumstances and particularly in regard to other activities of
Hernandez which will be thoroughly discussed below, the Trial Examiner finds that
at all times material herein he was a supervisory employee of the Respondent within
the meaning of the Act.
According to Poveda's credible testimony Maya was discharged by the Respondent
on July 7, 1957. He and Maya were friends and had both worked together in the
engineroom . After Maya was discharged he told Poveda that the reason for the
Respondent's action in this regard was that someone had reported to the Company
that he had been seen talking to Al Lopez, the Union's representative in Miami,
Florida. As a matter of fact it was Poveda himself who had talked with Lopez
and not Maya. It was for this reason that he interceded with Hernandez on Maya's
behalf. Hernandez told him in substance that he would straighten things out and
have Maya put back to work when they got back to Miami. Shortly after they
arrived in Miami, he went with Hernandez to the offices of Osborne, vice president
and general manager of Peninsular & Occidental Steamship Company, to see what
could be done about Maya. Hernandez talked to Osborne privately. After the
conversation was over he told him that Maya would be put back to work at once
and paid for the time he lost. From what the Trial Examiner gleans from the
record Maya was restored to his job in the engineroom and worked there until
15 See supra, and paragraph 9 of the complaint
PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 29
November 12, 1957 , when he and others mentioned above were discharged, of
which more anon.
Neither Maya , Hernandez , nor Osborne testified at the hearing herein. Hence
Poveda's testimony stands uncontradicted and undenied . in the record .' Even so, his
testimony in this regard has concerned the Trial Examiner quite a bit , not so much
because , standing alone , much of it is hearsay , but primarily because of its vague-
ness.16 However when it is considered in the light of the record considered as a
whole, particularly other testimony regarding Hernandez ' activities, he is inclined to
and does accept it as probative and relevant evidence to the issues involved herein.
In the circumstances the Trial Examiner finds that by the conduct described above
the Respondent violated Section 8(a)( I) of the Act . The vice of the Respondent's
conduct in this regard is that it was a warning to. its employees that their union
activities were not only under surveillance , but that they too might expect the same
treatment for engaging in union activities as was meted out to Maya . Clearly such
conduct constituted interference , restraint , and coercion .within the meaning of Sec-
tion 8 (a)(1) of the Act.
The record also shows that on numerous occasions Hernandez queried the em-
ployees in regard to their union, affiliation and threatened them with discharge if
they signed union cards . Hernandez ' activities in this regard occurred for the most
part in Havana , Cuba, and on board the SS Florida on the return trip to Miami, on
or about October 23, 1957. The General Counsel's witnesses testified without con-
tradiction that on or about the above date Hernandez came to them and in substance
asked each if he had joined the Union . At the time he had a list of names and
when they replied that they had done so he placed an X after their names. At the
same time he threatened them with discharge.
Typical of Hernandez ' tactics in this regard is found in the undenied and credible
testimony of Jose Pena , one of the alleged discriminatees.
Q. (By Mr . SCHENERLEIN.) Do you recall whether or not the ship was in
Havana on or about October 23 ,.1957?
A. Yes.
Q. Did you have a conversation with Jesus Hernandez on or about this time?
A. Yes.
Q. What did Jesus say in substance to you and what did you say to Jesus?
A. Jesus Hernandez had a list in his hand on entering the dock and we found
him waiting for the other crew members to leave , when I left . He said that he
didn 't have anything to say to me . He knew that it was I who was passing out
the cards on the boat-union cards . on the boat , that I shouldn't continue fill-
ing out the cards because I was putting my companions in jeopardy , and every-
body that had filled out a card they were going to fire from the boat.
Q. (By Mr . SCHENERLEIN .) Were those things in your last answer things
that Jesus said to you?
A. Yes.
Q. Did Jesus have a list in his hand at the time he talked to you?
A. Yes; he had the list in his hand.
Q. Did you see the list?
A. Yes.
Q. What did he do - with this list?
TRIAL EXAMINER : Establish what was on the list from the witness.
The WITNESS : He took the list and opposite my name he put a cross. I also
saw above my name the name of a fellow worker, Maya.
Q. (By Mr . SCHENERLEIN .) In addition to your name and Maya's name,
what else was on the list that you saw?
A. There was writing at the top of the paper . I couldn 't say what it was,
because I couldn't get a good look at it. And below the writing there were
names of the crew members.
Q. Did you testify that you saw Maya's name on the list?
A. Angel Maya.
Q. Was there a mark next to Maya 's name?
A. Yes, it had a cross.
In the considered opinion of the Trial Examiner , Hernandez' interrogation of the
crew in regard to their union activities and affiliations accompanied by threats of
discharge to each of them personally for their activities is such an obvious violation
of Section 8(a)(1) of the Act that he sees no necessity for,citing authorities ad
38Poveda did not speak English and his entire testimony went'into the record through
the official interpreter %
30 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
'infinitum to substantiate his conclusion in this regard . Suffice it to say that he finds
that Hernandez' conduct as described above was violative of Section 8(a)(1) of
the Act.
B. The alleged violations of Section 8(a) (3)
- As indicated above the complaint alleges that the employees named therein were
'discharged in mid-November 1957. The record shows that six of them were "tech-
'nically" discharged twice,17 first in Miami, Florida, on or about November 12, 1957,
and again on November 17, 1957, in Nassau , Bahama Islands.
The record shows that the SS Florida arrived in Miami sometime either on Novem-
ber 11 or 12, 1957. On the morning of the 12th, Pena, Poveda, and Maya were
discharged by Chief Engineer William E . Russell , under the following circumstances.
According to the credible testimony of Pena and Poveda they and Maya were called
into Russell's office and told by him "that he was very sorry that he had to fire us,
but it was a company order because they didn't want any people who belonged to
the Union. That he was sorry."
According to the credible testimony of Abelardo. Navarro, he, Dominguez, and
Tamayo were fired under the following circumstances:
Q. (By Mr.,SCHENERLEIN.) Do you recall whether or not the ship was in
Miami on or about November 11, 1957?
A. Yes.
Q. Were you fired on or about that date?
A. Yes, on the 11th of November.
Q. Who fired you?
A. Mario Aguero. He's a second steward.
TRIAL EXAMINER: Second steward, very well.
Q. (By Mr. SCHENERLEIN.) Tell us what happened at that time?
A. Well, the boat arrived in Nassau. I was collecting the dirty linen. He
called Dominguez and Tomayo and me. He told us that we were discharged
and that we should sign off on the articles.
I told him that I couldn't do that without previously seeing my union repre-
sentative. He said that was of no interest to him; that he was simply complying
with company orders, and that's all that concerned him.
So I went and called Albert Lopez.
Q. Finish the translation
A. So I went and I called Alberto Lopez.
Q. Now, did this conversation take place in Miami?
A. Yes
Q. He had it placed in Nassau earlier, and the question was in Miami. I
don't know whether you made the mistake.
The INTERPRETER: I may have.
TRIAL EXAMINER: Very well.
Mr. RUTLEDGE: What date was this?
TRIAL EXAMINER: November the 11th, 1957.
Thereafter Poveda, Pena, Maya, Navarro, Dominguez, and Tamayo met with
Al Lopez, a representative of the Union,18 and accompanied him to the U.S Immi-
gration Office in Miami. What transpired there and thereafter is best told in the
testimony of Juan Poveda: 19
Q. All right. What happened at immigration?
A. A lady, who is in the maritime division of the immigration and who speaks
Spanish-that they didn't have any knowledge of the company having fired us;
and because of that we should go -back to the boat, because since they had no
knowledge of our being fired, we'd have-they would have to put up a bond
of one-thousand dollars for each of us: that we should return to our work again.
Q. Did you go back to the ship? Did you all go back to the ship?
A. Yes.
Q. When you went back to the ship were you put to work?
A. No.
17 The record shows that of the six discharged at this time all were permitted to go to
work but Angel Maya and Abelardo Navarro , of whom more anon.
19 The record shows that Albert Lopez , at times material herein , was vice president of
the Maritime Council of Southeast Florida , AFL-CIO.
19 According to the credible testimony of Navarro ,- the lady who interviewed them at
the US Immigration Office was a Mrs Aguilera . She was employed in the Maritime
Division of Immigration and spoke Spanish
PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 31-
Q. Who told you you couldn't go to work?
A. The same chief engineer.
Q. What did the chief engineer say?
A. He told us that he had orders from the company not to permit us to work
because we belonged to the union. They said they-
Q. Did you go to see Mr. Osborne after this?
A. Yes.
Q. Why did you go to see Mr. Osborne?
A. We went to see Mr. Osborne because Mr. Russell, the chief engineer,
had told us that we couldn't work on account of orders from the company.
One of our companions, Navarro, and all the rest went to see him.
Q. Who were all the rest?
A. Navarro, myself, Pena, Maya, we were all together six.
Q. Dominguez?
A. Dominguez and Tamayo.
Q. What happened at Mr. Osborne's office?
A. We no sooner started to enter the office, and then he said to us, "Get out.
Get out of here." He didn't say anything else. "Get out of here right away.
You don't have anything to talk to me about. Get out."
We got out of there rapidly, because when he spoke to us that way, why-
TRIAL EXAMINER: That person has been identified as whom?
Mr. SCHENERLEIN: I was just going to ask him that question. These fellows
are not exactly sharp on titles.
Mr. RUTLEDGE: I think it can be stipulated that Mr. Osborne is vice-president
and general manager of the P. & O. Steamship Company.
Mr. STEEL: Yes.
TRIAL EXAMINER: Do you join in that stipulation, Counsel?
Mr. SCHENERLEIN: Yes, your Honor.
After leaving Osborne's office they returned to the SS Florida. Eventually all
were permited to go aboard but Maya and Navarro of whom more anon. Those
who were permitted to go back on board the ship were not assigned to their old
jobs but were given less desirable work. For example Pena, who was a first-class
fireman, before he was discharged on November 12, 1957, was put to work "wiping
up the floor."
As indicated above the discharge of Maya and Navarro was effectuated and they
were denied 'permission to reboard the ship. As the Trial Examiner sees it the
reason the discharge of these two was made to "stick," so to speak, was because
they were "registered aliens," and the Respondent was not required to post a $1,000
bond as to them, as they would have been for the others because they were "aliens." ao
On November 15, 1957, the SS Florida left Miami for Nassau, and arrived there
the next morning. On Sunday, November 17, 1957, Castro, Pena, Poveda, Diaz,
Dominguez, and Tamayo were ordered by Pico, the ship's quartermaster, to meet
with Captain Donovan in the purser's office. What transpired there is best told
in the language of the witness Castro, who acted as interpreter: 121
Q. What happened in the purser's office with Captain Donovan?
A. He called Mr. Pico to interpret, because he figured out that nobody could
understand English.
Q. Go ahead.
A. So after he told Pico that he got the order from the company to fire all
the guys, because they belonged to the Union. He knew we already had a case
here in Miami, because in Miami he fired Mr. Navarro and Mr. Maya; and
I think he fired about the 11 or 12-he fired the other guys too.
There was Mr. Poveda, Mr. Pena, Tamayo and Dominguez.
Q. What else did he say, if anything?
A. Well, he said he had nothing to do with that. He got an order to put up,
the ship.
TRIAL EXAMINER: You mean to put it in drydock?
The WITNESS: Yes.
Q. (By Mr. SCHENERLEIN.) Did you act as interpreter for` the other mem-
bers of the crew that could not understand English?
A. When Mr. Pico started to talk I said we didn't need that, because I was
the representative; and I asked for the Cuban Consul. And he said, "We
haven't any Cuban Consul."
20 See supra, In regard to what transpired at the Immigration Office.
z