Southern Steamship Co.

National Labor Relations Board - Board Decisions

Apr 22, 1940

23 N.L.R.B. 26 (N.L.R.B. 1940)

In the Matter of SouTHERN STEAMSHIP COMPANY and NATIONAL
MARITIME UNION OF AMERICA , AFFILIATED WITH THE C. I. O.
Case No. C-1204-Decided April 22, 1940
Water Transportation Industry-Unit Appropriate for Collectroe Bargaining:
unlicensed personnel employed in the deck, engine, and stewards' departments,
except wireless and radio operators, chief electricians on electrically driven
ships, and junior engineers who hold licenses, on the vessels operated out of
Atlantic and Gulf ports by the respondent-Representatives: proof of choice:
election; prior certification of union by Board-Collectrte Bargaining: employer's
duty to bargain after certification ; refusal to meet and bargain collectively with
union certified by the Board ; certification not rendered invalid by denying
respondent the privilege of having an observer present at elections to determine
collective bargaining representatives-Employee Status: not ended merely by
termination of voyage-Strike: precipitated and prolonged because of refusal to
bargain-Discrimination: charges of sustained: (1) mere presence of strikers on
ship, in absence of interference with its control by respondent's officers did not
constitute trespass: (2) shipping articles individual contracts of employ-
ment and cannot be lawfully construed under the Act as contracts not to strike;
(3) where respondent's unfair labor practices precipitated the strike, the fact
that strike constituted a breach of individual contract of employment not a
valid defenseReinstatement Ordered: discharged employees and employees
who struck in protest against discriminatory discharges: displacement of em-
ployees hired to replace strikers-Back Pay: awarded to discharged employees
including reasonable value of board and maintenance
Mr. Joseph F. Castiello, for the Board.
A dams, Childs, McKaig cC Lukens, by Mr. Randolph W. Childs, and
Mr. Edgar McKaig, of Philadelphia, Pa., Mr. Joseph W. Henderson,
of Philadelphia, Pa., and Royston rfi Rayzor, by Mr. John Brown, of
Houston, Tex., for the respondent.
Mr. William L. Standard, by Mr. Max Lustig, of New York City,
and Mandell & Combs, by Mr. Arthur J. Mandell, of Houston, Tex:,
for the Union.
Mr. Ray Johnson, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by National Maritime
Union of America, affiliated with the C. I. 0., herein called the Union,
23 N. L. R. B., No. 2.
26
SOUTHERN STEAMSHIP COMPANY 27
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Fourth Region (Philadelphia , Pennsyl-
vania ),' issued its complaint on November 23, 1938, against Southern
Steamship Company, Philadelphia , Pennsylvania , herein called the
respondent , alleging that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce, within the mean-
ing of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat . 449, herein called the Act.
In respect to the unfair labor practices , the complaint alleged in
substance ( 1) that the unlicensed personnel employed in the deck, en-
gine, and stewards ' departments , except wireless and radio operators,
chief electricians on electrically driven ships , and junior engineers who
hold licenses, on vessels operated out of Atlantic and Gulf ports by
the respondent , constitute a unit appropriate for the purposes of collec-
tive bargaining; (2) that on January 26 , 1938, the Board certified
the Union as the exclusive bargaining representative of all the em-
ployees - in such unit; ( 3) that in the months of January , February,
March, April , and August , 1938, and at all times thereafter, the
respondent refused to bargain with the Union as the exclusive bar-
gaining representative of employees in the appropriate unit; (4) that
on July 18, 1938, as a result of the respondent 's unfair labor practices,
a strike occurred on the respondent 's ship, City of Fort Worth , while
it was moored to the dock at Houston , Texas; ( 5) that on July 25, 1938,
the respondent terminated the employment of and refused to reinstate
Joseph G. Warren, John Pfuhl , Jr., Elmer J. Ferguson , Edward W.
Smith, and John J. Tracey because they participated in said strike,
joined the Union , and engaged in other concerted activities with em-
ployees of the respondent for the purposes of collective bargaining
and other mutual aid and protection; (6) that on July 25, 1938, as a
result of said discharges, a strike occurred on the respondent 's ship,
City of Fort Worth , while it was moored to the dock at Philadelphia,
Pennsylvania ; and (7 ) that by the foregoing and by other acts the
respondent interfered with, restrained , and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
On November 23, 1938, copies of the complaint and an accompany-
ing notice of hearing thereon were duly served upon the respondent
and the Union. On November 30, 1938, the respondent filed with the
Regional Director a motion to extend the date of the hearing. On the
same day the Regional Director denied the motion. On December 1,
1938, the respondent filed an answer to the complaint in which it ad-
mitted the allegations concerning the nature and scope of its business,
the appropriateness of the above -described unit, and the certification
of the Union by the Board, but denied that it had engaged in any un-
fair labor practices . In its answer the respondent alleged, inter alia,
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Board's certification of the Union was invalid, that it had not
refused to bargain collectively with the Union prior to August 1938,
that because of the acts of certain union members in participating in
a sit-down strike on July 18, 1938, it was not thereafter required to
recognize the Union as the exclusive bargaining representative of the
employees, and that the employees named in the complaint were not
discharged but were refused reemployment because they had wilfully
disobeyed lawful commands and engaged in a sit-down strike in viola-
tion of their shipping articles.
Pursuant to notice, a hearing was held on December 5, 6, 14, 21, 22,
and 23, 1938, at Philadelphia, Pennsylvania, and on January 9, 1939,
at Houston, Texas, before William Seagle, the Trial Examiner duly
designated by the Board. The Board, the respondent, and the Union
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all par-
ties. At the close of the entire case, counsel for the Board moved to
amend the complaint to conform to the proof. The motion was
granted. On January 25, 1939, pursuant to permission granted at the
hearing, the respondent filed with the Trial Examiner : (1) a motion
to dismiss the complaint; (2) a motion to strike out certain testimony;
and (3) an objection to the motion that the complaint be conformed
to the proof and an exception to the ruling of the Trial Examiner
thereon. In his Intermediate Report the Trial Examiner denied both
motions and overruled the objection. During the course of the hearing
the Trial Examiner made several rulings on other motions and on
objections to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On February 25, 1939, the Trial Examiner filed an Intermediate
Report, copies of which were duly served upon all parties, finding that
the respondent had engaged in and was engaging in unfair labor prac-
tices, within the meaning of Section 8 (1), (3), and (5) and"Section 2
(6) and (7) of the Act. He recommended that the respondent cease
and desist from its unfair labor practices, upon application offer rein-
statement to six employees who went on strike on July 25, 1939, offer
reinstatement with back pay to four of the five employees who he
found had been discriminatorily discharged, and offer back pay to the
fifth employee. Thereafter the respondent filed exceptions to the
Intermediate Report and a brief. Pursuant to notice duly served
upon all parties, a hearing for the purposes of oral argument was
held before the Board in Washington, D. C., on November 2, 1939.
The respondent and the Union were represented by counsel and par-
ticipated in the argument.
SOUTHERN STEAMSHIP COMPANY 29
The Board has considered the exceptions to the Intermediate Report
and, except in so far as they are consistent with the findings of fact,
conclusions of law, and order set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESI'IINDENT
The respondent, Southern Steamship Company, is a Delaware cor-
poration having its principal office in Philadelphia, Pennsylvania.
It owns and operates seven vessels having an aggregate gross tonnage
of 18,382 and carrying freight between the ports of Philadelphia,
Pennsylvania, and Houston, Texas. South-bound cargo carried by the
ships is obtained from all of the States on the Eastern Seaboard and
from the State of Ohio. North-bound cargo is obtained from Arizona,
Colorado, Louisiana, New Mexico, Oklahoma, and Texas. During
1937 the respondent's vessels carried 341,581 tolls of freight repre-
senting revenue amounting to $1,991,351.81.
We find that the respondent is engaged in trade, traffic, transporta-
tion, and commerce among the several States and that the crews em-
ployed on its ships are directly engaged in such trade, traffic, trans-
portation, and commerce.
H. THE ORGANIZATION INVOLVED
National Maritime Union of America is a labor organization affili-
ated with the Committee for Industrial Organization.' It admits to
its membership the unlicensed personnel employed in the deck, engine,
and stewards' departments; except wireless and radio operators, chief
electricians on electrically driven ships, and junior engineers who hold
licenses, on vessels operated out of the Atlantic and Gulf ports by the
respondent.
HI. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
The complaint alleges that on or about January 26, 1938, and at all
times thereafter, the respondent refused to bargain collectively with
the Union as the exclusive representative of the employees in an ap-
propriate unit although the Board had certified the Union as such
representative. The respondent denies that the Union requested the
respondent to bargain collectively prior to August 18, 1938, and alleges
that "on and after August 23, 1938, it maintained its position" that
pending a judicial determination of the validity of the election and
1 Now the Congress of Industrial Organizations
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said certification" it was not required to recognize the Union, and
that by reason of the uiilawful acts of the employees in conducting a
sit-down strike and refusing to obey orders, it was not thereafter re-
quired to recognize the Union as the exclusive representative of the
employees in the appropriate unit.
On July 16, 1937, the Board issued a Decision and Direction of
Election 2 in which it found, inter alia, that the unlicensed personnel
employed in the deck, engine, and stewards' departments, except wire-
less and radio operators, chief electricians on electrically driven ships,
and junior engineers who hold licenses, on the vessels operated out
of Atlantic and Gulf ports by the respondent, constitute an appro-
priate bargaining unit. The complaint herein alleges that this unit is
appropriate and the respondent admits the allegation. We find that
the unlicensed personnel employed in the deck, engine, and stewards'
departments, except wireless and radio operators, chief electricians
on electrically driven ships, and junior engineers who hold licenses, on
the vessels operated out of Atlantic and Gulf ports by the respondent,
constitute a unit appropriate for the purposes of collective bargaining
and that said unit insures to employees of the respondent the full
benefit of their right to self-organization and to collective bargaining
and otherwise effectuates the policies of the Act.
On January 26, 1938, following an election conducted pursuant to
the Direction of Elections, the Board certified the Union as the ex-
clusive bargaining representative of all the employees in the appro-
priate unit and dismissed a petition filed by the respondent to vacate
the election on the ground that no representative of the respondent
was permitted to observe the balloting on one of its vessels.3 The
respondent now contends that the certification was invalid since the
Board's ruling on its petition was incorrect. The respondent stipu-
lated that the validity of the certification depended, for the purposes
of the present proceeding, upon the correctness of the Board's ruling
that in the absence of consent by the labor organizations involved, the
respondent was not entitled to have an observer at the polls. In
discussing the petition of the respondent we said :
The Board has consistently held that in the absence of consent
by the labor organizations involved, company representatives
should not be permitted to be present at elections to determine col-
lective bargaining representatives. The choice of representatives
by employees should be made free from any interference or
coercion by employers. The presence of an employer's repre-
sentative at an election may prevent such a free choice, although
2 Matter of American France Line et al . ( Southern Steamship Company ) and Interna-
tional Seamen 's Union of America, 3 N L R B. 64.
8 Matter of American France Line et al (Southern Steamship Company )- and-Interna-
tional Seamen's Union of America, 4 N L. R. B 1140.
SOUTHERN ' STEAMSHIP COMPANY 31
no interference or coercion is intended by the employer. The
Board has adopted means of conducting these elections whereby
the interests of all parties, including the employer's, are adequately
protected.
Employers may not, as a matter of right, exercise any prerogative in
the Board's administration of Section 9 of the Act.3a We are of the
opinion that the respondent was in no manner prejudiced by our
refusal to permit it to participate in the cpnduct of the balloting and
we affirm our ruling cited above.
We find that on January 26, 1938, and at all times thereafter, the
Union was the duly designated representative of a majority of the
employees in the appropriate unit, and pursuant to Section 9 (a)
of the Act, was on January 26, 1938, and at all times thereafter has
been, the exclusive representative of all the employees in such a unit
for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other conditions of employment.4
Shortly after the certification of January 26, 1938, E. J. Cunning-
ham, a union representative, requested L A. Schreider, Jr., the re-
spondent's representative at Houston, to arrange for a collective
bargaining conference and to issue passes to the union shore delegates,
without which they could not board the respondent's ships. Schreider
replied that he did not have the authority to grant the requests, but
that he would transmit them to the home office in Philadelphia.
Schreider also promised to communicate the respondent 's answer to
Cunningham. Neither the Union nor Cunningham thereafter re-
ceived a communication from Schreider.
In late January or early February 1938, after the Board had certi-
fied the Union, Paul Palazzi, the Union's business agent at Philadel-
phia, telephoned Charles F. Sherry, marine superintendent of the
respondent, and requested a collective bargaining conference. Sherry
replied that the matter was in the hands of the respondent's attorney.
About the middle of February 1938, Palazzi wrote Sherry but received
84 Under our present election procedure, we now permit the employer to designate
non-supervisory employees as observers at the polling places during an election for the
purpose of challenging ineligible voters and verifying the tally.
4 The respondent does not claim that the Union at any time lost its status as bargaining
representative of a majority of the employees in the appropriate unit Cf. N. L it. B. v
Highland Park Manufacturing Company, 110 F (2d) 632 (C C. A 4) enf'g Matter of
Highland Park Manufacturing Company and Textile Workers Organizing Committee, 12
N L R. B . 1238 ; N. L R B. v. , Remington Rand, Inc ( Central Executive Council of
Remington Rand Employees ' Ass'ns, intervenes ), 94 F (2d) 862 (C. C. A. 2), enf'g as
modified , Matter of Remington Rand, Inc and Remington Rand Joint Protective Board of
the District Council Office Equipment Workers, 2 N L. R B 626; N L. R. B v. Biles-
Coleman Lumber Company , 96 F (2d) 197 (C C A. 9) enf'g Matter of Biles-Coleman
Lumber Company and Puget Sound District Council of Lumber and Sawmill Workers,
4 N. L. It. B . 679; N. L it. B v. Louisville Refining Company, 102 F. (2d) 678 (C. C. A.
6) enf'g as mod., Matter of Louisville Refining Company and International Association,
Oil Field, Gas Well and Refinery Workers of America , 4 N. L. It. B. 844.
32 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
no reply. During the next month, Palazzi made two attempts to
reach Sherry by telephone, but was told each time that Sherry was
out. On the last occasion Palazzi left his telephone number and
requested that Sherry call him. Sherry however did not respond to
this request.5 Palazzi then attempted to interview Sherry at the re-
spondent's docks in Philadelphia. A watchman asked Palazzi to
identify himself, and when Palazzi revealed his identity and the na-
ture of his business with Sherry, the watchman refused to grant him
permission to enter Sherry's office.
On August 18, 1938, Palazzi sent Sherry a registered letter request-
ing a collective bargaining conference. On August 23, 1938, Sherry
wrote Palazzi that until the validity of the Board's certification was
settled by the Board and the courts the question of a collective bar-
gaining agreement was premature. On cross-examination, Sherry
admitted that the respondent had taken this position from the time
of the certification. The respondent admits that it refused to bargain
with the Union after August 18, 1938. It is plain from the evidence;
however, that the respondent had refused to bargain with the Union
at all times subsequent to January 1938."
We find that on or about January 26, 1938, and at all times there-
after, the respondent refused to bargain collectively with the Union
as the exclusive representative of the employees in the above-de-
scribed unit and that the respondent has thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The strike
On July 17, 1938, 13 unlicensed seamen 7 of the City of Fort Worth,
who were members of the Union, met at the union hall in Houston,
Texas, and decided to go on strike the following morning in order
to compel the respondent to recognize the Union and to issue passes
to the shore delegates. At 8 a. m. on July 18, while the vessel was
moored to the dock the same men carried the strike into effect when
John J. Tracey, an oiler, failed to turn the steam "on deck" for the
5 The findings above with respect to the Union 's efforts to initiate collective bargaining
conferences with the respondent are based upon the uncontradicted testimony of Palazzi.
During the hearing counsel for the respondent stated that Sherry would be called upon
to testify that Palazzi's letter to hun of February 1938 was never received Proposed
testimony was not elicited , although Sherry was called as a witness for the respondent.
6 The respondent contends that by reason of the unlawful conduct of the strikers on
July 18, 1938, any obligation on its part to bargain collectively with the Union there-
after was removed . We find below, however, that the conduct of the strikers was not
unlawful . Even assuming theretore that such conduct would relieve the respondent
of its obligation under the Act, its contention is without merit.
7 Joseph Crassavaz, William Reeves, John Pfuhl , Jr., Joseph G. Warren, Henry A
Lathan, William Godfrey Burns , John J. Tracey, Edward B. Hughes , Alexander A Braun,
Elmer J. Ferguson , Gordon Neeley, Charles C . Holt, and Edward W. Smith.
SOUTHERN STEAMSHIP COMPANY 33
purpose of loading the cargo. However, sufficient steam was main-
tained to operate the fire alarms, the ice machine , the sanitary pumps,
and the line.
When Norry Pool ," the first assistant engineer, discovered that
there was not sufficient steam to load the cargo , he asked Tracey why
he had not turned on the steam. Tracey replied that the crew was
striking for recognition of the Union and pastes for the shore dele-
gates and that he did not intend to turn on the steam. Pool then
stated that he would put the steam on deck himself . Tracey an-
swered, "Well , if you do, I will have to take the fireman out of the
fireroom." Pool then turned the steam on, and Tracey thereupon
called out Alexander A. Braun, the fireman, who "threw the pumps."
..Braun, whose watch was ended at that time , went off duty and
was replaced by Elmer J. Ferguson . Joseph A. Norton, the chief
engineer , came to the fireroom and attempted unsuccessfully to per-
suade Ferguson and Tracey to perform their duties . After Fergu-
son refused to tend the fires, Laurence A. Robinson, the second assist-
ant engineer tended the fires himself and ordered Ferguson out of
the fireroom . Tracey and Ferguson thereupon joined the other strik-
ers who were sitting on the poop deck , the general meeting place of
the employees when not on duty.
There were 19 unlicensed seamen in the crew, and the officers of
the ship, with the assistance of those who did not participate in the
strike, proceeded with the loading of the cargo . The strikers made
no effort to interfere with the firing of the boilers or with the load-
ing but during the entire period ' of the strike sat on the poop deck.
About 10: 30 a. in., Captain Anthony G. Rudan appealed to the men
to return to work and upon their refusal told them that they were
violating their shipping articles under which they had agreed to
make a round trip from Philadelphia to Houston and return . Joseph
G. Warren, the spokesman of the strikers , replied that they were
striking for recognition of the Union and passes for the shore dele-
gates and were justified in doing so since the Union had won an
election conducted by the Board. Rudan then ordered the strikers
collectively and individually to resume their stations , but the strikers
refused to comply. Later in the morning Rudan brought aboard a
deputy United States Shipping Commissioner who read the follow-
ing excerpt from the shipping laws to the strikers :
... the said crew agrees to conduct themselves in an orderly,
faithful , honest, and sober manner , and to be at all times diligent
in their respective duties, and to be obedient to the lawful com-
mands of the said master . . . .9
"Designated in the record as both "Pool" and "Paul "
This excerpt was included in the shipping articles signed by the clew, which aie
considered in detail below
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It should be noted that at no time were the striking employees ordered
to leave the ship. Indeed, without objection from the captain they
were served their midday meal by one of their own members, Smith,
a messboy.
On the afternoon of the same day, J. N. Rayzor, the respondent's
attorney in Houston, called Sherry at Philadelphia and advised him
that if the respondent would agree to issue passes to the shore dele-
gates, he thought that the Union would release the ship. Sherry
instructed Rayzor that he did not know whether the respondent
would issue such passes and that no agreement with the Union was
to be made. After the conversation with Sherry, Rayzor attempted
to reach the president of the respondent, by telephone but was not
successful. A few minutes later, however, Rayzor called A. J. Man-
dell, the union attorney in Houston, and without mentioning his
prior conversation with Sherry, promised, if the Union would release
the ship, to meet with Mandell during the following week in an effort
to negotiate an agreement. He also agreed to recommend to the
respondent that passes be issued to the shore delegates. Rayzor, testi-
fied that he did not apprise Mandell of Sherry's instructions because
lie intended to make a personal appeal to the president of the
respondent. Relying upon Rayzor's promise, Mandell advised the
union leaders to terminate the strike. The strike was accordingly
terminated about 7 p. in. and the ship sailed at about 9 p. in. the same
day with the crew intact. The officers on board admitted that the
strike did not delay the sailing and that the vessel was in no danger
during the period of strike.
We find that the strike was precipitated and prolonged primarily
by reason of the respondent's unlawful refusal to bargain collectively
with the Union.'o
C. The discharges
During the return voyage to Philadelphia, it is conceded that the
members of the crew conducted themselves in a competent manner.
Captain Rudan testified that he had no complaints to make. Second
Assistant Engineer Robinson testified that the strikers "were a good
crew on the return voyage, just as they always were a good crew."
He further testified that he spoke to three of the strikers who were
on his watch during the return voyage (Ferguson, Braun, and
Hughes), and said to them, "Well, boys, let's forget all about what
happened; let's string along just as though nothing had happened."
10 See N. L. R. B. v. Remington Rand, Inc. (Central Executive Council o f Remington
Rand Employees ' Assn's, Intervener ), 94 F. (2d) 862 (C . C. A. 2) enf'g as mod., Matter
of Remington Rand , Inc and Remington Rand Joint Protective Board o f the District
Council Office Equipment Workers , 2 N. L R B 626; Black Diamond S S. Corporation
v N. L It. B., 94 F . ( 2d) 875 (C C A 2) enf'g Matter of Black Diamond Steamship
,Corporation and Marine Engineers ' Beneficial Association, Local No 34, 3 N. L R B. 84.
SOUTHERN STEAMSHIP COMPANY 35
He concluded, "they went home just as though nothing had hap-
pened." First Mate Holland testified that he felt that he had a
safe crew when he sailed from Houston on July 18.11
Nevertheless, during the return voyage, the captain, at the recom-
mendation of the ship's officers, decided not to re-ship Joseph G.
Warren, John Pfuhl, Jr., John J. Tracey, Elmer J. Ferguson, and
Edward W. Smith, five of the crew who had participated in the strike.
The union members apparently anticipated the possibility that they
might be discharged when the ship reached Philadelphia and while
at sea, they met and decided to go on strike if any one of their
number was discharged.
After the City of Fort Worth had docked at Philadelphia on July
25, and Warren, Tracey, Pfuhl, Smith, and Ferguson had signed off
the shipping articles, the respondent informed them that they would
not be engaged for the next voyage. Because of Ferguson's partici-
pation in the strike the respondent refused to pay him a bonus of $25
to which he was entitled for having worked a full year for the re-
spondent. All of the strikers who had not been discharged, with but
one exception, struck in protest against the respondent's refusal to
re-ship the above-named men.12 At his own request, Joseph Cras-
savaz, one of the strikers, was later reinstated. The record does not
show that any of the other strikers have ever requested reinstatement;
at the time of the hearing this strike was still in progress.
We have found that the strike of July 25 was caused by the dis-
charge of Warren, Tracey, Pfuhl, Smith, and Ferguson. We find
below that the respondent by discharging the five named employees
engaged in an unfair labor practice. We find therefore that the
strike of July, 25, 1938, was caused and prolonged by the respondent's
unfair labor practices.
The respondent contends (1) that the employment of the persons
named in the complaint terminated when they signed off the shipping
articles on July 25, 1938, and that consequently they were not dis-
charged; (2) that their participation in the sit-down strike justified
the respondent's refusal to re-ship these men; (3) that their violation
of the terms of the shipping articles justified the respondent in refus-
ing to re-ship them; and (4) that the persons refused re-shipment
were thus refused for good and sufficient cause unrelated to their
union membership and activity.
"The only complaint that appears,on the record was made by Holland who testified
that Smith, a messboy, would say "Good morning kind of half-hearted like."
12 This employee was Alexander A. Braun
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The shipping articles
Pursuant to statute seamen are required to sign shipping articles
at the beginning of each voyage and to sign off the articles at the
conclusion of each voyage.13 This requirement, however, does not
preclude the employer and his crew "from mutually undertaking to
assure a crew the right to continue as employees and to re-sign if it
desires after signing off articles at a voyage's end." 14 The record is
plain that the mere termination of a voyage covered by shipping
articles does not terminate the employee status of the respondent's
employees here involved without some further action by either the
respondent or the employees. Most of the seamen involved in this
proceeding had worked continuously on the City of Forth 1I orth for
a considerable period of time, being employed in the performance of
odd jobs on the ship between voyages.15 In accordance with the re-
spondent's custom, the seamen usually sign the new articles for the
next voyage at the time they sign off the old. Moreover, even in those
instances in which the old and new articles are not signed on the same
day, the seamen consider themselves engaged for the next voyage
unless they are notified to the contrary.
We find that the tenure of employment of the respondent 's seamen
is not terminated by the mere expiration of shipping articles.16 We
find, accordingly, that on July 25, 1938, the employment of the five
men named in the complaint did not automatically terminate, but
that they were discharged by the respondent on that day.1
11 46 U. S C. A 564, 574.
14 Waterman Steamship Corporation v N. L. R B, 60 S Ct 493, rev'g 103 F ( 2d) 167
(C C A. 5), and enf 'g Matter of Waterman Steamship Corporation and National Mart-
time Union of America, Engine Division, Mobile Branch , Mobile ,'Alabania, 7 N L R. B 237.
15 Thus Tracey had been employed continuously over a period of 16 months, Ferguson
for a period of 1 year, Pfuhl over a period of 8 months , Warren over a period of 6 weeks,
and Smith over a period of 18 months Each round-trip voyage of the City of Fort Worth
is scheduled to take about 25 days.
"In N. L. R. B . v. Waterman Steamship Corporation, cit supra , the Supreme Court,
after reviewing evidence in support of a similar finding of the Board , stated that "mari-
time people generally " have recognized that tenure of employment does not terminate
with the expiration of shipping articles . See also Matter of South Atlantic Steamship
Company of Delaware and National Maritime Union of America, 12 N. L R B. 1367 ;
Matter of The Texas Company, Marine Division and National Maritime Union, Port Arthur
Branch, 19 N L. R B 835, and Matter of Calmar Steamship Corporation and National
Maritime Union of America , et al., 18 N. L. R B 1.
17 Even were we to assume that the employees status of these seamen did in fact
cease with the termination of their shipping articles , it is undenied that they were refused
reemployment . A discriminatory refusal to employ is no less a violation of the Act than
is a discriminatory discharge . See Matter of Waumbec Mills, Inc. and United Textile
Workers of America, 15 N. L. R. B. 37. The respondent' s contention is thus no defense,
to any event , to an , alleged violation of Section 8 (3) of the Act
SOUTHERN STEAMSHIP COMPANY
2. The "sit-down" strike
37
In its answer to the complaint, the respondent alleges, inter alia,
that the employees named in the complaint "unlawfully took posses-
sion of said steamship and solicited, incited and stirred up other
members of the crew of said steamship to disobey and resist the law-
ful "orders of the master and other officers of said steamship and to
refuse to perform their proper duties on board said steamship."
During the hearing the respondent sought to show that the union
members took possession of the City of Fort Worth "or portions
thereof" and "explicitly engaged in a sit-down strike and were
guilty of unlawful acts and were trespassers." Accordingly the re-
spondent argues that it was justified in refusing to re-ship the five
seamen named in the complaint. The respondent's contention finds
no support in the record.
We have found above that the strike was caused and prolonged
by reason of the respondent's unlawful refusal to bargain collectively
with the Union. The strike continued for 11 hours during which
the striking employees refused to work and sat down on the poop
deck. The City of Fort Worth was moored to the dock at Houston
during the entire day and the refusal of the strikers to perform their
duties in no manner endangered the safety of the ship.'8 Moreover,
the strikers neither unlawfully seized any portion of the ship nor
despoiled any of the respondent's property thereon.19 The striking
employees merely sat on the poop deck, the usual place of meeting
and recreation for members of the crew when off duty; the ship
"remained fully in the possession of the respondent and its authorized
officers" 20 and the work of loading the ship proceeded without delay.
No attempt was made by the strikers to interfere with the normal
operations on shipboard, and as we have noted, the vessel sailed on
schedule at the conclusion of the strike on the same day. At no time
did the strikers claim to hold the ship in defiance of the right of
possession of the owner nor did their presence on shipboard constitute
1s See N. L. R. B v. Black Diamond S. S. Corporation , 94'F (2d ) 875 (C. C. A. 2)
enf'g Matter of Black Diamond Steamship Corporation and Marine Engineers ' Beneficial
Association, Local No. 33, 3 N. L R. B. 84, and Cf. Rees v. United States, 95 F. (2d) 784
(C C. A 4) in which the Court found that the ship upon which a strike occurred "was
not in fact moored to the dock or at anchor in a safe harbor , but was in such a position
that the obedience of the crew to the orders of the master was essential to her safety."
19 Cf N . L R. B. v Fansteel Metallurgical Corporation , 306 U. S . 240, aff'g. 98 F
(2d) 375 (C. C. A. 7), enf'g as mod ., Matter of Fansteel Metallurgical Corporation and
Amalgamated Association of Iron, Steel and Tin Workers of North America , Local 661,
5 N. L R . B. 930, and McNeely & Price Company v. N. L. R B., 106 F. (2d) 878 (C C A.
3) enf'g as mod.,- Matter of McNeely & Price Company and National Leather Workers
Assoe:alion, Local No 40, of the C I. 0 , 6 N L R B. 800
20Cf N L. R B. v. Stackpole Carbon Company , 105 F. (2d) 167 (C C. A. 3) enf'g as
mod , Matter of Stackpole Carbon Company and United Electrical & Radio Workers of
America, Local No 502, 6 N. L R B. 171.
2830•:1-41-N of 23-4
38 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
a trespass.21 Unlike an industrial plant, a ship is not only the place
of employment but also the living quarters of the crew. Con-
sequently their mere presence on the ship, in the absence of inter-
ference. with its control by the, respondent's, officers, could' not
constitute a trespass, nor were the strikers regarded as trespassers
by the captain or other officers of the ship. At no time were the
strikers ordered to leave the ship.22
The evidence affords no basis for finding that the conduct of the
union members during the strike projected them outside the frame-
work of protection afforded by the Act. We find that.the respondent
was not warranted in discharging any of the union members solely
because of their collective activity in striking.
3. The alleged breach of contract
The respondent contends that the striking members of the crew,
by wilfully disobeying the lawful commands of the master and other
officers of the City of Fort Worth and by refusing to perform their
proper duties,. on board, this ship, breached',, their, shipping, articles,
and thereby afforded ample and lawful cause for the discharges.
Maritime employees who sign shipping articles agree:
to conduct themselves in an orderly, faithful, honest and sober
manner, and to be at all times diligent in their respective duties,
and to be obedient to the lawful commands of said master . . .
and of their superior officers, in everything relating to the vessel,
and the stores and cargo thereof, whether oil board, in boats, or
on shore.
According to the respondent, by engaging in the strike and failing to
"turn to" at the command of the master, the union members breached
their shipping articles which constituted their contract, of employ-
ment with the respondent.
The fact that the striking seamen refused to obey the respondent's
orders during the strike is not in dispute. The mere fact that such
21 See American Manufacturing Co v. N L it B , 60 Sup Ct 612, afi'g as mod , 106 F.
(2d) 61 (C. C. A. 3) enf'g as mod , Matter of American Manufacturing Company; Com-
pany Union of the American Manufacturing Company : the Collective Baigaining Com-
mittee of the Brooklyn plant of the American Manufacturing Company and Textile lVorl ers'
Organizsng Committee , C I. 0., 5 N. L. R B 443, in which the court stated :
We do not regard the action of these or other employees in standing around
the premises for a period of not more than two hours, while an attempt was being
made to persuade the Company to fix a date for collective bargaining with
T. W. O. C, as in the nature of a sit -down strike which would permit the termination
of the employee relationship . They certainly weie not claiming to hold the premises
-in defiance of the right of possession of the owner and we regard the case as no
different from that of an ordinary strike where work has ceased because of in
unfair labor practice
22 During oral argument before the Board , counsel toi the respondent asses ted that
the conduct of the strikers in remaining on board was considered less serious than if
they had left the vessel.
SOUTHERN STEAMSHIP COMPANY 39
refusal constituted a breach of contract, however, is immaterial to the
issues here involved.23 We recognize that an employer may lawfully
discharge his employees because of their failure to obey his orders
or their refusal to perform their duties, whether or not such failure
or refusal constitutes a breach of an express contract of employment.
The undertaking by employees that they will obey the orders of their
employer and perform their duties is necessarily implicit in every
form of hire and tenure of employment. Whenever employees dur-
ing a labor dispute cease work in order to strike, necessarily during
the period of the strike they neither obey their employer's orders nor
perform the duties for which they were hired. Nonetheless they
remain employees within the meaning of the Act 24 and are entitled
to the protection afforded under the Act against discrimination by
the employer.'-5
We have found that the strike herein was attributable to the re-
spondent's unlawful refusal to bargain coilectively with the Union
and that the conduct of the union members during the strike was in
no manner unlawful or otherwise beyond the limits of permissible
activity. We therefore find untenable the respondent's contention
that the discharges were lawful and justified because the strike in
effect constituted a breach of contract.26
23 An agreement not to strike, when validly entered into by a labor organization as a
result of collective bargaining , is, of course , binding upon the members of the labor
organization . Shipping articles , however , are individual contracts and cannot lawfully
be construed under the Act as requiring that each seaman renounce the right to self-
organization and collective bargaining or under normal circumstances refrain from
striking in order to protect such light Cf Matter of Arcade- Sunshine Company, Inc and
Laundry Workers Cleaners R Dyers Union, 12 N 1. R B 250
24 Section 2 (3) of the Act. 1
25 Black Diamond S. S. Corporation v. N L Ii B , 94 F (2d) 875 (C. C A 2), enf'd
Matter of Black Diamond Steamship Corporation and Marine Engineers Beneficial Asso-
aiation, Local No 33, 3 N. L R B 84
25 Cf. N. L. R. B. v. Sands Manufacturing Company. 306 U S 332, wherein the Court
found that'the repudiation by the employees of their agreement was not caused by any
unfair labor practices of the employer
It should be noted moreover that the employees named in the complaint were not
discharged forthwith upon their failure to "turn to" but were permitted to work for 7
days until the ship docked in Philadelphia Even assuming the validity of the respond-
ent's contention that the breach of the shipping articles afforded justification for the
discharges , it may reasonably be argued that the respondent, in continuing to avail itself
of the employees ' services for a period of 7 days after the alleged breach of contract,
waived such breach
In the law of Master and Servant , if the Master has cause justifying the
discharge of the servant , and neveitheless continues , with knowledge of the facts,
to receive the benefit of the servant' s services , lie cannot afterwards make the
breach ground for discharge . .
. . . The employer has no right , whether lie desires it or not and whatever inten-
tion he manifests , to continue employment and yet retain the privilege of asserting
a breach of condition It is true that an employee may consent to be retained on
such terms , but his clearly manifested assent is necessai y, for it cannot be presumed
. . Williston on Contracts . Rev Ed , Vol 3, S 725, p 2062
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Defenses with respect to the individual discharges
Although the defenses discussed above were the only defenses
assigned by the respondent in its answer for the discharges of the five
seamen named in the complaint , during the hearing the respondent
sought to show that in addition there existed other causes for the
discharges.
a. John J. Tracey and Elmer J. Ferguson
Tracey had been employed continuously by the respondent since
March 10, 1937, as an oiler , fireman, and wiper. He was the engine-
division delegate of the Union and had obtained the memberships of
nine members of the crew . Ferguson , a fireman , had been employed
continuously by the respondent since July 1937. Although Ferguson
held no office in the Union , we have observed his activity at the
beginning of the strike on July 18.
The respondent 's witnesses admitted that Tracey and Ferguson
were selected for discharge solely because of their acts during the
strike. Second Assistant Engineer Robinson testified that Tracey had
"threatened" him when he told the oiler that he was going to put
the steam on deck himself. According to Robinson, Tracey had
replied, "You had better not. You will be sorry." Robinson further
testified that when he began to turn on the steam, Tracey said, "Go
ahead, you won't have any after 8 o'clock." According to Tracey's
testimony , he merely asked Robinson , "Second are you going to light
the fires ?", and that when Robinson answered in the affirmative, he
replied, "That's all I want to know."
Even accepting Robinson 's version of the incident we do not believe
that Tracey's statements can be construed as threatening , and it is
apparent from the testimony that they were not so construed by
Robinson . On cross -examination Robinson stated that he recom-
mended Tracey's discharge because the latter had given , him "back
talk."
The evidence is plain that both Tracey and Ferguson were dis-
charged because of the leading parts they played in the strike. Chief
Engineer Norton testified that he did not recommend Ferguson's dis-
charge merely because he had disobeyed orders. "I would have over-
looked that had he taken the fires until we got straightened out."
Captain Rudan testified that he discharged both these men upon
Norton's complaint that "they had been on watch at the time of the
commencement of this what I consider disobedience , and if they had
gone on watch at the time , that the rest of the men probably would
have followed . . ."
SOUTHERN STEAMSHIP COMPANY 41
We find that the respondent, by discharging Tracey and Ferguson,
discriminated in regard to their hire and tenure of employment,
thereby discouraging membership in the Union and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
At the time of their discharge Tracey and Ferguson were earning
$85 and $75 a month, respectively, plus maintenance on shipboard.
At the time of the hearing neither had been employed since his
discharge.
b. John Pfuhl, Jr.
Pfuhl, an able seaman , had been continuously employed by the
respondent since November 24, 1937. He joined the Union on June
30, 1938, and participated in the strike of July 18.
At the hearing the respondent sought to show that in addition to
having engaged in the strike, Pfuhl had been convicted of petit
larceny prior to his employment by the respondent and had been
arrested for larceny during his employment, and that his criminal
record, taken in conjunction with his inefficiency and negligence as
an employee, warranted his discharge.
Captain Rudan testified that Pfubl had served under three mates
and that all had complained that he was a slow worker. Pfuhl ad-
mitted that a complaint had been made concerning his work on his
first voyage in November 1937, but he testified that no complaint
was made thereafter. Since Pfuhl was re-shipped several times
despite his alleged slowness, we do not believe that this was It mo-
tivating factor in his discharge.27 There was testimony that on two
occasions Pfuhl negligently spilled paint on the deck. He had been
re-shipped, however, after he had spilled paint on the first occasion,
and the testimony shows that the second offense was not brought to
the respondent's attention until after the respondent's officers had
decided to discharge him. Moreover, on several occasions other sea-
men had spilled paint and had not been disciplined.
Finally, the respondent urges that prior to his employment, Pfuhl
had been convicted of petit larceny and that during his employ-
ment he had been arrested for a similar offense. That Pfuhl's crimi-
nal record was not disturbing to the respondent and was not the
cause of his discharge is plain from the testimony. The respondent
did not find Pfuhl an undesirable employee after his arrest since he
was permitted to continue in the respondent's employ and the officers
n Montgomery Ward & Co. v. National Labor Relations Board, 107 P (2d) 555 (C. C. A.
7), enf'g as mod, Matter of Montgomery Ward & Company and Reuben. Lotzenberger,
et at, 9 N. L R. B. 538, wherein the Court stated, "Although long service does not
necessarily indicate efficiency, it does indicate that the employee's work is not considered
so unsatisfactory as to merit discharge."
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the ship apparently had no knowledge of his previous conviction
at the time they decided to discharge him.
Captain Rudan's testimony makes it abundantly clear that the
motivating factor in the respondent's decision to discharge Pfuhl was
his participation in the strike. Presumably Pfuhl's personal record
did not disqualify him as an employee, according to the respondent,
but did constitute a bar to his union activity. "After being lenient
with him," Rudan explained, "he had indulged in this disobedience
down there."
We find that the respondent, by discharging Pfuhl, discriminated
in regard to his hire and tenure of employment, thereby discouraging
membership in the Union and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
At the time of his discharge Pfuhl was earning $75 per month
plus maintenance on' shipboard. Between the date of his discharge
and the date of the hearing, he secured two temporary jobs on which
he earned a total of $182.50, plus maintenance on shipboard, during
one of these periods of employment.
c. Joseph G. Warren
Warren, an able seaman, had been continuously employed by the,
respondent for about 6 weeks prior to his discharge. Warren was
the deck delegate of the Union and the recognized leader of the
strikers.
The respondent urges as contributing factors in its selection of
Warren for discharge, his intoxication on three occasions during
the period of his employment, and his arrest for cursing. About
a month prior to his discharge Warren became intoxicated and was
unable to work for 1 day. On the second occasion, Warren reported
to work late. Warren's third spree occurred while he was off duty.
We entertain no doubt that an employee's intoxication provides
ample reason for his discharge. We believe, however, that the re-
spondent' did not discharge Warren for this reason, but rather that
it seized upon his drinking proclivities to rid itself of an active
union officer. We have observed that the respondent did not ascribe
Warren's drunkenness as the reason for his dicharge in its answer
to the complaint. Warren had been re-shipped after his arrest
and after two instances of intoxication. Moreover, the evidence-
shows that beer is sold on board the City of Fort Worth and that it is
not uncommon for seamen to become intoxicated.
We find that the respondent, by discharging Warren, discrim-
inated in regard to his hire and tenure of employment, thereby
SOUTHERN STEAMSHIP COMPANY 43
discouraging membership in the Union and interfering with , restrain-
ing, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
At the time of his discharge , Warren was earning $75 per month
plus maintenance on shipboard. Warren did not appear at the
hearing and the record does not show the amount of his earnings,
if any, since his discharge.
d. Edward W. Smith
Smith, the crew messboy, was the steward delegate of the Union.
At the time of his discharge, he had been employed continuously by
the respondent for approximately 18 months . Kuhtreiber, the
steward, testified that Smith was surly and did not do his work
properly, that he quarreled with the cook, and that the cook had
requested that he be discharged. Kuhtreiber admitted, however,
that these facts were reported to the Captain about 3 months prior
to Smith's discharge.
Smith was admittedly popular with the crew and was re-shipped
several times after the reports of his alleged shortcomings . Kuhtrei-
ber freely admitted that he recommended that Smith be discharged
because he wanted ."to put his head a little bit wise," and that he
intended at the time Smith was discharged to reemploy him within
a short time. On cross-examination Sherry admitted that Smith
was discharged because of his participation in the strike.
We find that the respondent, by discharging Smith, discriminated
in regard to his hire and tenure .of employment , thereby discourag-
ing membership in the Union and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
At the time of his discharge Smith was earning $52 per month,
plus maintenance on board the ship. At the time of the hearing,
Smith had earned $36 since his discharge on a trial run of a United
States cruiser.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III A, B,
and C above , occurring in connection with its operations described
in Section I above, have a close, intimate, and substantial relation
to trade, traffic , and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist from such prac-
tices and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the respondent refused to bargain collectively,
with the Union as the exclusive representative of its employees within
an appropriate unit, we shall order the respondent, upon request,
to bargain with the Union as such representative.
We have found that the respondent, by discharging John J. Tracey,
Elmer J. Ferguson, Joseph G. Warren, John Pfuhl, Jr., and Edward
W. Smith, discriminated against them in regard to their hire and
tenure of employment. We shall therefore order the respondent to
reinstate these employees to their former or substantially equivalent
positions without prejudice to their seniority and other rights and
privileges, and to make them whole by payment to John J. Tracey,
Elmer J. Ferguson, Joseph G. Warren, and Edward W. Smith, re-
spectively, of a sum of money equal to the amount he would normally
have earned as wages from July 25, 1938, the date of the discrimina-
tion against him, to the date of the offer of reinstatement, including
the value of maintenance on shipboard calculated at the rate of
$2.35 per day,211 less his net earnings 29 during such period. There
shall be added to the amount thus due to Ferguson, the bonus of $25
to which he was entitled on the day of his discharge by reason of his
continued service with the respondent. The Trial Examiner did not
recommend the reinstatement of Pfuhl, because of his personal record.
We shall not follow the recommendation of the Trial Examiner.
The respondent has not shown, and indeed the record belies the re-
spondent's contention, that a conviction for a misdemeanor disqual-
ifies an employee for continued employment. The respondent, how-
ever, shall not be required to give Pfuhl back pay from February
25, 1939, the date of the Intermediate Report, to the date of this
Decision. The back pay awarded Pfuhl will be a sum of money equal
to the amount which he would have normally earned from July 25,1938,
23 The parties stipulated that the value of maintenance on shipboard was $2.25 per day
29 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for the
unlawful termination of his employment and the consequent necessity of his seeking
employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood
of Carpenters and Joiners of America, Lumber and Sawmill Workers Union , Local 2590,
S N. L. R B. 440. Monies received for work performed upon Federal, State, county,
municipal , or other work-relief projects are not considered as earnings , but as provided
below in the Order , shall be deducted from the sum due the employee , and the amount
thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county,
municipal , or other government or governments, which supplied the funds for said work-
relief projects.
SOUTHERN STEAMSHIP- COMPANY 45
to February 25, 1939, and from the date of this Decision to the date
of offer of reinstatement, including the value of maintenance on
shipboard, calculated at the rate of $2.35 per day, less his net earn-
ings during such period.
Prior to the hearing, one of the seven strikers who went on strike
on July 25, 1938, in protest against the discriminatory discharges,
had been reinstated. Since this strike was caused by the respondent's
unfair labor practices, in order to effectuate the policies of the Act,
we shall order the respondent, upon application, and upon the first
available sailing date after such application, to offer to the other six
employees who struck on July 25, 1938, reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges, dismissing if necessary any
employees since hired to replace them.30
We shall also order the respondent to make whole the said six per-
sons for any loss of pay they may suffer by reason of any refusal of
their application in accordance with the provision above, by payment
to each of them a sum of money equal to the amount which he normally
would have earned as wages, including the value of maintenance on
shipboard, calculated at the rate of $2.35 per day, during the period
from the date of any such refusal of his application to the date of
reinstatement, less his net earnings during such period.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. National Maritime Union of America, affiliated with the C. I. 0.,
is a labor organization, within the meaning of Section 2 (5) of the
Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Joseph G. Warren, John Pfuhl, Jr., Elmer J. Ferguson,.
Edward W. Smith, and John J. Tracey, thereby discouraging mem-
bership in the National Maritime Union of America, affiliated with
the C. I. 0., the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
3. The unlicensed personnel employed in the deck, engine, and
stewards' departments, except wireless and radio operators, chief
electricians on electrically driven ships, and junior engineers who
hold licenses, on vessels operated out of Atlantic and Gulf ports by
the respondent, constitute a unit appropriate for the purposes of-
collective bargaining, within the meaning of Section 9 (b) of the
Act.
See Black Diamond Steamship Corporation V. N. L. R. B, 94 F ( 2d) 875 (C. C. A 2)
nf'g'`Matter of Black Dia.t oiid' Steamship Corporation and Marine Engineers Beneficial
Association, Local No. 33, 3 N. L R. B. 84.
. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The National Maritime Union of America , 'affiliated with the
C. I. 0., is and at all times since January 26 , 1938, has been, the
exclusive representative of employees in such unit , for the purposes
of collective bargaining within the meaning of Section 9 ( a) of the
Act.
5. By refusing on or about January 26 , 1938, and at all times
thereafter, to bargain collectivelytwi'thF.the^Nationah,Msritime > Union.
of America , affiliated with the C. I. 0., as the exclusive representative
of all its employees in such unit, the respondent has engaged in and
is engaging in unfair labor practices , within the meaning of Section
8 (5) of the Act.
6. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning = of-Section-2 •( 6) and -(7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Southern Steamship Company, Philadelphia, Pennsylvania, and
its officers , agents, successors , and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in National Maritime Union of
America, affiliated with the C . I. 0., or any other labor organization
of its employees by discharging or refusing to reinstate any of its
employees , or in any other manner discriminating in regard to their
hire and tenure of employment or any terms or conditions of their
employment;
(b) Refusing to bargain collectively with the National Maritime
Union of America , affiliated with the C . I. 0., as the exclusive rep-
resentative of the unlicensed personnel employed in the deck , engine,
and stewards ' departments , except wireless and radio operators,
chief electricians on electrically driven ships, and junior engineers
who hold licenses , on vessels operated out of Atlantic and Gulf ports
by the respondent;
(c) In any other manner interfering with, restraining , or coerc-
ing its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations , to bargain collectively
through representatives of their own choosing, and to engage in con-
Lcerted activities for the purpose of collective bargaining or other
SOUTHERN STEAMSHIP COMPANY 47
-mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the National Mari-
-time Union of, America, affiliated with the C. I. 0., as the exclusive
representative of the unlicensed personnel employed in the deck,
engine, and stewards' departments, except wireless and radio oper-
ators, chief electricians on electrically driven ships, and junior
engineers who hold licenses, oil vessels operated out of Atlantic and
Gulf ports by the respondent, in respect to rates of pay, wages, hours
,of employment, and other conditions of employment;
(b) Offer to Joseph G. Warren, John Pfuhl, Jr., Elmer J. Fergu-
son, Edward W. Smith, and John J. Tracey immediate and full re-
instatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges
previously enjoyed by them;
(c) Make whole Joseph G. Warren, Elmer J. Ferguson, Edward
W. Smnith, and John J. Tracey for any loss of pay they may have suf-
fered by reason of the respondent's discrimination in regard to their
hire and tenure of employment, by payment to each of them of a
sum of money equal to that which he would normally have earned
as wages, including therein the value of maintenance on shipboard
calculated at the rate of $2.35 per day, from July 25, 1938, to the
date on which the respondent offers him reinstatement (and adding
thereto in the case of Elmer J. Ferguson the bonus of $25 due him
on the date of his discharge), less his net earnings during said period;
provided, however, that the respondent shall deduct from the amount
thus due him, monies received by him during said period for work
performed upon Federal, State, county, municipal, or other work-
relief projects, and pay over the amount, so deducted, to the appro-
priate fiscal agency of the Federal, State, county, municipal, or other
government or governments which supplied the funds for said work-
relief projects;
(d) Make whole John Pfuhl, Jr., for any loss of pay he may
have suffered by reason of the respondent's discrimination in regard
to his hire and tenure of employment, by payment to him of a sum
of money equal to that which he would normally have earned as
wages, including therein the value of maintenance on shipboard
calculated at the rate of $2.35 per day, from July 25, 1938, to Feb-
ruary 25, 1939, and from the date of this Decision to the date of
offer of reinstatement, less his net earnings during said period ;
provided, however, that the respondent shall deduct from the amount
thus due him, monies received by him during such period for work
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
performed upon Federal, State , county, municipal , or other work-
relief projects , and pay over the amount, so deducted , to the appro-
priate fiscal agency of the Federal, State, county , municipal , or other-
government or governments which supplied the funds for said
work-relief projects ;
(e) Upon application, and upon the first available sa,1hng date
after such application , offer to William Reeves, Henry A. Lathan,
William Godfrey Burns, Edward B. Hughes, Gordon Neeley, and
Charles C. Holt, immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice to their
seniority or other rights and privileges previously enjoyed by them,.
dismissing , if necessary , those who have been hired to replace them ;
(f) Make whole William Reeves, Henry A. Lathan, William God-
frey Burns, Edward B. Hughes , Gordon Neeley, and Charles C.
Holt, for any loss of pay they may suffer by reason of any refusal
of their applications for reinstatement , as provided in the section
entitled "The Remedy ," by payment to each of them a sum of money
equal to that which he would normally have earned as wages, in-
cluding therein the value of maintenance on shipboard calculated at
the rate of $2.35 per day , from the date of any such refusal of his
application to the date of offer of reinstatement, less his net earnings.
during said period; provided , however, that the respondent shall
deduct from the amount thus due him, monies received by him dur-
ing said period for work performed upon Federal, State, county,
municipal , or other work -relief projects , and pay over the amount,.
so deducted , to the appropriate fiscal agency of the Federal , State,
county, municipal , or other government or governments which
supplied the funds for said work -relief projects;
(g) Post immediately notices to its employees in conspicuous
places on its docks and on its vessels , and maintain such notices for
a period of at least sixty ( 60) consecutive days from the date of
the posting , stating: (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs
1 (a), (b), and (c) of this Order; ( 2) that the respondent will take
the affirmative action required by paragraphs 2 (a), (b), (c), (d),
(e), and (f) of this Order; and ( 3) that the respondent 's employees
are free to become or remain members of the National Maritime
Union of America , affiliated with the C. I. O. and that it will not
discriminate against any employee because of membership or activity
in that organization;
(h) Notify the Regional Director for the Fourth Region in writ-
ing within ten (10 ) days from the date of this Order what steps
the respondent has taken to comply herewith.