The Greenport Basin and Construction Co.

National Labor Relations Board - Board Decisions

Jul 13, 1942

42 N.L.R.B. 377 (N.L.R.B. 1942)

In the Mattel of THE GREENPOR'r BASIN AND CoNSTRUCIION COMPANY
and INDUSTRIAL UNION OF MARINE AND .SHIPBUILDING WORKERS OV-
AMERIC k, LOCAL #47, C I 0
Case No C-2105 -Decided July 13, 1942
Jurisdiction shipbuilding industry
Unfair Labor Practices-
Into feienie, Restioint, and Coerual, saiveillance of union meeturg, anti-union
statements, declarations of union preference, intetiogation conceining union
membership, threatened cessation of operations
Conipanij-Dinmiiated Union totination of, with aid and suppoit of employer by
suggestnig and instigating formation of ernplovees association, by conducting
election by seta n iig couii el for emploNees association, br sohntation of
inenibeis, by failure to deduct from Rages time spent in foimiiig and carrying
on activities of emploj ees association
Discrimination discharges and lad-otts for union membership and activity,
charges of, dismissed as to one employee
Remedial Orders - dominated otgariiiation disestablished, Ieinstatement,and
back pa3 a'Naided
111r Martin I Pose and Mr John J Cuneo, for the Board
"I r Jet one, F Healy, of New Yolk City, for the respondent
Mr Her man, J Schoen f eld, of Patchogue, N Y , for the A_ssoclat}on
Mr Robert Denson, of New York City, for the Union
Mr J"redetic B I'a2Ires, 2nd, of counsel to the Board
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon chat ges and amended charges duly filed by Industllal Union
of Maisie and Shipbuilding Workers of America, Local #47, C I 0,
herein called the Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Second Region
(New Yolk City), issued its complaint, dated December 5, 1941,
sgaln-t The Gieenpoit Basin and Construction Company, Greetrport,
New York, herein called the respondent,' alleging that the respond-
ent had engaged in and was engaging in unfan labor practices af-
fecting commei ce, mthnn the meaning of Section 8 (1), (2), and (3)
'The name of the respondent was etIoneously designated as 'the Gieenport &
Constinetio,i Co, Inc, in the pl'ading', formal pipets, iecoid, and Inteiniediate Report,
all of which ii eie corrected bi stipulation of the pai ties
42N L R B, No 84
377
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the ,Act Copies of the complaint, acconi-
panted by notice of hearing, were duly served upon the respondent,
the Union and The Greenport Basin and Construction Company Em-
ployees Association, herein called the Association, a labor organiza-
tion alleged in the complaint to be dominated by the respondent.
With respect to the unfair labor practices, the complaint alleged in
substance that the respondent (1) on or about July 28, 1941, initiated,
formed, and -sponsored the Association and continuously since that
date has dominated it, contributed to its support, and interfered with
its administration; (2) since July 26, 1941, has urged, persuaded, and
warned its employees and applicants for employment to refrain from
assisting, or becoming or remaining members of, the Union; (3) has
threatened its employees with discharge or other reps isals if they did
not become or remain members of the Association; (4) has interrogated
its employees, and applicants for employment, concerning membership
in the Union; (5) has made disparaging remarks to its employees
about the Union, its leaders, and its adherents; (6) has threatened to
close its shipyard if the Union successfully organized the employees or
if it were compelled to bargain collectively with the Union; (7) has
urged its employees to deal directly with it concerning grievances, labor -
disputes, wages, hours of employment, and other conditions of em-
ployment, rather than through the Union; (8) has kept under sur-
veillance the activities, meetings, and meeting places of the Union;
and (9) has discriminatorily discharged, on specified dates, mile named
employees,2 and thereafter refused to reinstate them because they had
joined or assisted the Union
On or about December 15, 1941, the respondent filed its answer, in
which it admitted the allegations of the complaint as to the nature of
its business, denied the alleged unfair labor practices, and alleged
affirmatively that Jennings, Knipp, and Kanwetz were discharged for
cause, and that Warner, Sterling, Cummings, and Hansen, Jr., weie
temporarily laid off
Pursuant to notice, a hearing was held from December 18 to 29, 1941,
and from January 5 to 20, 1942, at Greenpoit, New York, before
Howard Myers, the Trial Examiner duly designated by the Chief Trial
Examiner. At the opening of the hearing, the Association filed a
motion to intervene in the proceeding, and the Trial Examiner granted
the motion, limiting the intervention to the issue of alleged violation
of Section 8 (2) of the Act On December 23, 1941, the, Association
2 Harry Warner, Walter Sterling , Douglas Cummings , Alfred Hansen, Jr, Arthur Klipp,
Frederick G Jennings , Alexey Kanwetz , Louis George Tuthill , and Charles Raynor At
the close of the Board 's case, counsel for the Board moved to dismiss the allegations of the
complaint v ith respect to the alleged discriminatory discharges of Louis George Tuthill and
Charles Raynor The Trial Examiner granted the motion and their cases will not be
considered herein.
1
THE GREENPORT BASIN AND CONSTRUCTION COMPANY 379
-filed its answer, denying that it was company-dominated or that it had
received any support from the respondent.
The Boai d, the iespondent, the Association, and the Union were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded all parties.
At the conclusion of the Board's case, counsel for the respondent made
several motions to dismiss the complaint in its entirety or, in the
alternative, to dismiss cei tam portions thereof. The Trial Examiner
denied these motions in part and reserved ruling on the remaining
portions of such motions, which he later denied in his Intermediate
Report Counsel for the Association moved, at the conclusion of the
Board's case, to dismiss the allegations of the complaint which charged
the respondent with violating Section 8 (2) of the Act. The motion
was denied At the conclusion of the hearing, counsel for the respond-
ent and counsel for the Association renewed their respective motions
to dismiss. Ruling thereon was reserved by the Trial Examiner, who
denied the motions in his Intei mediate Report. At the close of the
hearing, counsel for the Board moved to conform the complaint to
the proof, and counsel for the respondent and counsel for the Associa-
tion moved to conform their respective answers to the proof. The
motions were granted. 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 Examinee and finds that no prejudicial errors were com-
mitted The rulings are hereby affirmed.
At the conclusion of the heaiing, the parties were afforded, but did
not avail themselves of, an opportunity to argue orally before the Trial
Examiner Subsequent to the heating, the respondent filed a brief with
the Trial Examiner.
On February 18, 1942, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the respondent, the
Union, and the Association. He found that the respondent had en-
gaged in and was engaging in unfair labor practices, within the mean-
ing of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act,
and recommended that the respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the
Act. He further recommended that the complaint be dismissed insofar
as it related to the alleged discriminatory discharge of Frederick G.
Jennings On March 9, 10, and 20, 1942, respectively, the respondent,
the Union, and the Association each filed with the Board its exceptions
to the Intermediate Report On March 23, 1942, the respondent filed
with the Board a brief in support of its exceptions.
On April 16, 1942, pursuant to notice, a hearing was held before the
Board at Washington, D C, for the purpose of oral argument. The
380 -DECISION'S OF NATIONAL LABOR RELATIONS BOARD
respondent , the Union, and the Association were iepiesented -by coun-
sel and participated in the oral argument
The Boaid has considered the exceptions to the Intei inediate liepoi t
and the suppoi ting hiief and , nisofai as the exceptions are urconsrstent
with the findings , conclusrons , and or der set forth below , buds them
to be wi ithout pier it
Upon the entree i ecor (I in the case , the Bom d makes the following
FIND1'.GS OF F WT
I TI1E BUSINESS 01, 111F R1%81'0\DEN I
The Gieenpon t Basin and Consti uctron Cormpanv is a Nevv Jer 5ey
colpolatlon hav ing its pi Incipal office and ships ru d at Ur eenpol t, Nei-%,
Yolk, where it is engaged in building . consti uct ing i epair pig, and
selling boats The value of the materials used b} the tespondent, con-
sisting of lumber, steel, bronze, and copper , amounted to mole than
$1.000,000 during the peiiod trout January 1 to D:cenrbei 18, 1941
The respondent received approximately 50 percent of these rnateuals
from points outside the State of New Yoik During the same per rod,
the respondent Ai as engaged almost exclusiN el) m the cousti uctron of
ocean -going mine sww eepei s for the United States Navy Dui mg 1941
it sold to, of had under consti uction for, the United State, Nax y, mine
sweepers having an aggregate value of approxrmatck $,3000.000
The respondent achmrts that it is engaged in cornruetce vvithm the
meaning of the Act
II TILE ORO ANiZATiONS INvOLV-1_D
Industrial Union of panne and Shipbuilcl uag Woi lcets of timer Ica,
Local #47, is a labor of ganrzation affiliated with the Con-toss of In-
dustrial Organizations, admitting to nreurbershrp employees of the
respondent
The Gieenpoi t Basin and Construction Company Employees Associ-
ation is an unaffiliated labor organization, adnnttnrg to membership
employees of the i espondent
III THE UNFAIR LABOR PRACTICES
A Doviteviatzon, and interference with the for>rrrtiom and adnainistr'a-
tbon of the Assoclataon
1 Events leading to the for matron of the Association
No labor organization had attempted to establish itself ate the re-
spondent's shipyard prior to June 1941 Dui uig that month, the Union
THE GREENPORT BASIN AND CONS1R[ CIION COMPANY 381
commenced' its organizational activities among the respondent's 'em-
ployees On Satuiday evening, July 26, 1941, the Union held its first
open meeting in the Gieenport Village Hall It is undisputed that
'I'heodoie Brigham, the respondent's president, and Foieman Thorn-
hill attended the meeting as uninvited guests Appioximately 174 of
the 306 persons then employed by the iespondent were present at the
meeting and, in Brigham's piesence, about 125 employees signed appli-
cations toi nienibeiship in the Union While Brigham denied that
he knew that the meeting was being conducted ruder the auspices of
the Union until shortly befoie lie ariived at the hall. we do not credit
the denial The minutes of a conference held on July 24, 1941, for the
purpose of discussing a wage grievance of the iespondent's night-shift
employees, and attended by Bi igliam, rfullock, the iespondent's secs e-
taiy and ti casurer, Snyder, at that time the respondent's assistant secie-
taiy and ti_easuier, 4 foremen, and the employee iepi esentmg the work-
cis on the night shift, weie read into the iecoid at the heaiing and
clearly sho'i that the plans of the Union to hold a meeting on July
26, 1941, wen e known to, and discussed by, the officers and foiemen of
the Iespondent In ani, event, Biighann's piesence at the meeting
after he became awaie of its puipose would nevertheless constitute
interference ii ith the rights of his employees under the Act
On July 2'8, 1941, the first working day after the union meeting, a
movement w as stiu ted in the respondent's plaint to i liveit the employees' -
effoi is fiwn the Union to a rival organization, which came into exist-
ence a few days later The evidence as to what occurred during this
pen nod is, eycept as hereinafter indicated, laigely uncontroveited and,
in many instances, admitted. and we, like the Trial Examinee, find it to
be ci edible Ea i ly on July 28, pursuant to mistiuctions fi om Brigham,
Fied Bohlke, foieman of the machine department, assembled his 40 to
50 subordinates and dnected them to appoint 2 employees from their
department to discuss with the respondent any grievances the men
might have The men complied with the direction and elected two
delegates Bi igham simultaneously addi essed the renaming em-
ployees at a meeting in the carpenter shop and requested that 2 dele-
gates fionn each depaitment come to his office and state the grievances
which weie the source of the iumoied dissatisfaction among the em-
ployees Bingham then left the meeting and delegates were selected,
with whom the employees then eupon discussed then gi ievances After
a majority of the men in the machine, carpenter, and handymen de-
pan tments decided to be repiesented by the Union rather than by any
other gi oup of oiganization, the representatives drafted and signed the
following petition
To the officials of the Gieenport Basin & Const,i uctioii Com-
pany We, the delegates as appointed by the various departments
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- namely the Machine, Carpenter, and Handyman do hereby agree
Our departments having been organized by the Industrial Union
of Marine and Shipbuilding Workers of Amer ica, we have nothing
to say ourselves at this time At the proper time, a collective bar-
gaining agency of the said Union will present our demands
A few hours later, the employee delegates from all the departments
met with Brigham, George Snyder, then the respondent's secretary and
assistant treasurer and now its vice president, and Foreman Bohlke,
Thornhill, and Morris Appelt. Thomas Stein, a delegate from the ma-
chine department, read and presented the petition to Brigham. The
latter-replied that he was not interested in the petition and asked the
delegates to present whatever grievances they had Some stated that
the men wanted an increase in wages, and Brigham replied that he
would discuss the wage issue with the respondent's secretary and
treasurer, as soon as the latter returned to Greenport Another dele-
gate inquired if it would be possible to increase the wage scale to that
set by the Atlantic Coast Standards -Agreements Brigham ad-
mittedly answered that "it would be impossible . . . to pay that price
and continue working" and added that ". . . if it was necessary to have
the CIO Union," the respondent would finish the four boats it was
then working- on and would "take up with the Navy Department the
cancellation of further contracts and . . . then close the yard." Brig-
ham concluded by telling the delegates to go back to their departments,
report to the men what had taken place at the meeting, and return to
his office at 9 o'clock that evening to meet with John Kluge, mayor of
Greenport, who had expressed a desire to talk with the employees.
Early that afternoon Brigham, according to his own testimony,
called two meetings of the employees, the first in the carpenter shop and
the second in the machine shop. With respect to the first meeting,
employee Bishop testified that Brigham addressed the assembled em-
ployees as follows. Brigham informed them that he was "not satisfied
with the grievance committee" which, "instead of discussing griev-
ances," had presented the petition, and stated that he desired to dis-
cover the source of the "trouble" and to determine whether the men
wanted to work on a proposed merit system or wished to be represented
by the C. I. O. or some other organization. He then announced that
Snyder, who was with him, would call the names of the employees from
the pay roll, and that the men were to reply orally whether they were
"with the company" on the merit system or whether they wanted "the
outside organization, the CIO," to represent them. When one of the
men objected to such a vote, Brigham openly told Snyder to list that
8 The Atlantic Coast Standards is an agreement between the Navy -Department, the
Maritime Commission , and various labor organizations , which sets forth, among other
things, the wage scale to be paid to employees of shipyards engaged in building steel ships
The respondent builds only Nrooden boats for the Navy Department and therefore does not
come under this agreement
THE GREENPORT BASIN AND CONSTRUCTION COMPANY 383
man as having voted "No" and announced that further objections or
failure to answer would be considered a vote in the negative indicating
that the employee did "not want to be with the company but wanted
the CIO " Brigham further stated, according to Bishop, that he was
"not going to-have any outside union running his business" and that
"if the union came in" he would finish the four boats under construc-
tion, "and cancel the contract for the other eight-" Snyder called the
roll and the employees responded orally to the questions asked. The
testimony of Stein and Ketcham, employee representatives, is in sub-
stantial agreement with Bishop's testimony set forth above.
According to the testimony of employees Cummings and Khpp, the
machine-shop meeting, which was attended by about 50 employees, was
substantially similar to that of the carpenter shop and Brigham there
made practically the same remarks which he had made to the employees
at the meeting in the carpenter shop. Brigham testified that the pur-
pose of the vote was to ascertain whether the men were behind him or
with the C I. 0 The remainder of his testimony with regard to these
meetings was, in substance, meiely a denial of the statements at-
tributed to him by Ketcham, Bishop, Cummings,-and Khpp He ad-
mitted, however, that he might have made the remark that "if the
union came in, why, I might ask to finish what we were doing and get
the Navy department to allow us to cancel the contract and stop work-
ing " We do not credit Bi igham's denial, and we accept, as did the
Trial Examiner, the testimony of Ketcham, Bishop, Cummings, and
Klapp. Brigham testified that, at about 7 o'clock that evening, he and;
Snyder conducted a roll call of the employees on the night shift and
piopounded the same questions upon which the day- shift had been
polled.
During the same day, Foreman Bohlke had similarly engaged in
anti-union conduct. Employee Alfred Hansen, Jr, testified that
Bohike asked him why he had joined the Union and that, when he
informed Bohlke that he had joined in order to obtain an increase
in salary, Bohlke told him that if he did not resign from the Union
he would be discharged within 2 weeks. Douglas Cummings, an em-
ployee of the machine shop, testified that when he admitted, in response
to a question by Bohlke, that he was a member of the Union, Bohlke
said "If you fellows think you are going to run this yard, you are not.
There is not going to be any Gaffga or Stein-ism in this yard. Any-
body who joins the union is going to get thrown out of the yard . . .
I want you to think it over, and I will give you until tomorrow to
think it over I don't want you to be so stubborn." The record shows
that Gaffga and Stein were employees who were active in behalf of
the Union. Employee Harry Warner testified that during a conver-
sation with Bohlke the latter stated that if the Union succeeded in
384 DECISIONS OF 1TAIIO,TAL LABOR RELATIONS BOARD
organizing the employees the iespondent would close the yaid Bohlke
denied that he made the statements atti ibuted to hu i by Hansen, Cum-
mings, and Wainer The Trial Examiner iejected Bohlke's denial
for the reason that Bohlke's demeanoi on the stand, categorical denial
of the statements attributed to him by the various Board witnesses,
and his evasive answers to the questions propounded by counsel foi
the Board, inade it apparent that he was suppressing the ti lie facts
The Trial. Exammei credited the testimony of Hansen, Cummings, auul
Warner, all of whom impressed him as foithi ight and ti ntliful wit-
nesses, and found that Bohlke made the statements attributed to him
by those witnesses We agi ee with the Ti ial Examiner and find
accordingly
At about 9 o'clock that evening, all the delegates, except S(ein. mete
in the respondent's offices with Biigh,un and MTayoi Khi2e Kluge
participated in the meeting only to the extent of telling Bugbam and
the delegates that, in the interest of national defense, the pal ties should
come to a satisfactory agreement as quickly as possible Sei el al of the
delegates, including Ketcham, told Biighaii that the majouty of the
inen in their respective depaitments were "for the union and mole
money" Delegates Rafford and Dickerson stated that the men In
their departments wanted their runes iemoved from the petition
which had been piesented to Bi ighani at the morning meeting After
a short discussion regarding a wage mciease, which Biigham said the
respondent was unable to grant, the meeting ended with the under-
standing that Brighaiii would meet with the delegates the following
day
The next moinmg, July 29, 1941, Bugham called the delegate, to
his office to discuss the question, i ailed by Raffoid and Dickei son the
pievious evening, of the withdi awal of navies from the petition At
his request, the delegates signed notices, di afted by Bi igham, -stating
that the signei s "desii e to withdraw their mines fiom that document
Ithe petition of July 28] " Brigham had the delegates execute the
notice of withdrawal despite the fact that that morning lie had re-
ceived the following letter, of which the delegates had no knowledge,
from the Union's national representative
On behalf of the membership of the Union also the employees
of the Gieenpoit Basin Construction Co of whom we iepiesent a
substantial majority, we wish to inform you that we ai e in a posi-
tion to fulfill any needs you may have foi iegnlai shipbuilding
men
We also would like to set a date whereby we may bargain
collectively for your employees
It is our hope that amicable laboi ielations will exist between us
THE GREENPORT BASIN AND CONSTRUCTION COMPANY 385
Early in the afternoon of July 30, the thn d day of the campaign to
oust-the Union, Brigham called a meeting in the carpenter shop of all
the employees on the day shift According to the testimony of
Ketcham, Brigham, in the presence of Snyder, then the respondent's
assistant secretary and assistant treasurer, and Krancher, the respond-
ent's personnel director, addressed the approximately 250 employees
there assembled as follows He stated that it had been suggested to him
that the men get together and form a "company" union He informed
the employees that he did not want an "outside organization" coming
into the yard and telling him how to iun his business but would 1atllei
have the employees form a "company" union Brigham concluded his
address by saying that he had prepared ballots and wanted the men
to indicate thereon whether they wanted the -'company" union or the
C I 0 , and suggested that the men elect a chairman and fully discuss
the matter Thereupon Brigham withdrew from the meeting, and the
employees selected as chairman Albeit Kenneth Monsell, a "snapper"
boss in the carpenter department, and as secretary, Leonard Kiancher,
the respondent's personnel director Monsell told the employees that
he was in favor of forming an independent union because he believed
that such an organization would be more beneficial to the men, to the
respondent, and to the village of Gieenpoi t, than an outside labor
organization Krancher then distributed the ballots, winch called
for the signature of the voter and provided for a choice between "my
own Company union" and "the C I 0 or other outside organization "
When some of the men objected to signing the ballots and another op-
posed the holding of the vote on company property, Brigham was
recalled After informing the men that they need not sign the ballots
and that he had arranged with the village authorities to hold the elect
tion at the Village Hall, Brigham read to the employees the following
telegram from the Union's national representative
Wagner Act gives your employees the right to join an'f union I
must ask you stop intimidation immediately if we are to maintain
amicable i elritrons
Roy Granata National Representative of'IUMSWA
After the meeting had adjourned to the Village Hall, and in the midst
of the voting, Snyder appeared and announced to the men that the
words "Company union" were erroneous and should be stricken from
the ballot and replaced by the word "association " However, the men
continued to cast their ballots without making the suggested change
Krancher, the Company's personnel director, supervised the balloting,
noted the names of those voting, and aided in the tabulation of the
results When Monsell announced that the "company union" had
received a majority of the votes cast, an employee suggested that the
new organization be known as "The Greenport Basin & Construction
472814-42-vol 42-25
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company Employees Association " and that an organizing committee
be selected Both suggestions were adopted , and Monsell was desig
nated chairman of the organizing committee
Brigham denied that he made any statement to the men at that
meeting, although he testified that he called the men together and
"simply told them that I had decided to have a ballot and that I wanted
to have them vote and handed them a printed ballot to be handed out "
We, like the Trial Exanuner , reject the denial as incredible , in view
of the appearance on the b rllots of the terms "Company union" and
"outside organization ," and in view of the corroboration of Ketcham's
testimony by other witnesses We agree with the Trial Examiner,,
and find, that Brigham made the statements attributed to him by
Ketcham.
That evening , Monsell and Krancher held a meeting in the car-
penter ship with the men on the night shift Monsell outlined briefly
the events of the afternoon meeting and Krancher read them the min-
utes of that meeting Thereupon a vote was taken on the , question
"Do you favor being represented by an Employees Union, or by the
C. I 0 or other outside organization " A majority of the employees
voted in favor of the "Employees Union."
Bishop, who was then a member of the Association 's organizing
committee , testified that immediately after the election, the committee
consulted Bohlke on the question of retaining counsel for the new
organization . According to Bishop , Bohlke suggested that they seek
the aid of an attorney named Schoenfeld and conducted the commit-
tee to Snyder 's offices to ascertain whether Snyder might have Schoen-
feld's telephone number Snyder told the committee that he did not
have Schoenfeld 's telephone number but that lie would try to get in
touch with him Snyder made a telephone call and then informed
the committee that he "couldn't contact the lawyer,',' but that he "could
call and try to get in contact with him later on " Bishop stated-that
the next morning, July 31 , 1941 , Monsell informed the committee that
Snyder had arranged with Schoenfeld for the committee to meet in
the latter's office at 11 o'clock that morning Bolilke and Snyder
denied that they had assisted or were instrumental in the retention of
Schoenfeld as counsel for the Association Monsell testified that he,
Monsell, had independently employed Schoenfeld as counsel for the
Association We do not credit the testimony of Bohlke, Snyder, and
Monsell and find, as did the Trial Examiner, that Schoenfeld was
engaged by the committee as attorney for the Association at the
suggestion of Bohlke and with the aid of Snyder, substantially as
related by Bishop In any event, since as we hereinafter find, Monsell
was a supervisory employee whose acts are attributable to the respond-
ent, we would nevertheless find that Monsell 's selection of counsel
THE GREENPORT BASIN AND CONSTRUCTION COMPANY 3$7
was, in fact, an act of the iespondent We further find, howevei, that
Schoenfeld did not knowingly or willingly participate in the respond-
ent's unfair labor practices by accepting the Association as a client
Eaily on July 31, the Association's organizing committee, headed by,
Monsell, left the yard and went to Schoenfeld's office in Patchogue,
New York, approximately 50 miles from Greenport. Schoenfeld,
after conferring with the committee at some length, prepared a peti-
tion to be signed by the employees who wanted to become members
of the Association Thereupon the committee returned to Greenpoit
and circulated the petition among the employees during- working
hours Practically all the employees signed the petition Although
foremen and snapper bosses wei e cognizant of its contents and were
present when the petition was being signed, none of them attempted
to stop its cuculation Indeed, all the snapper bosses signed the peti-
tion One snapper boss, Robeit Preston, obtained signatures to the
petition
At about 5.30 p. in on August 1, 1941, Monsell called a meeting in
the carpenter shop which was attended by about 200 employees. There
Monsell, as chairman, briefly reviewed the activities of the newly ere- 0
ated Association and suggested that a`bylaws committee be formed.
Monsell's suggestion was adopted and a bylaws committee was formed
consisting of the members of the organizing committee and 3 addi-
tional employees
The parties stipulated that the employees, all of whom were hourly
paid workers, received their regular wages for July 28, 29, 30, and
August 1, 1941, without deduction for the time spent by them at the
various meetings previously described, that the delegates weie likewise
paid their regular wages, without deduction for the time spent by them
at the morning meetings with Brigham on July 28 and 29, 1941, and
that the members of the organizing committee were paid their reg-
ular wages, without deduction for the time spent by them on Associa-
tion business on July 30, 1941 Snyder denied that the members of
the organizing committee were paid foi the time spent by them on
Association business on July 31, 1941 However, Bishop testified that
Monsell instructed him to deduct 2 hours from his time sheet for
July 31, 1941, for the time spent by the oiganizing committee with
Schoenfeld and, that, in order that Bishop might ultimately receive
compensation for such deduction, Monsell ordered him to add 2 hours
to the amount of time actually worked on one of the first days in
August The pay-roll records introduced into evidence support
Bishop's testimony We reject Snyder's denial, as did the Trial Ex-
aminer, and find that the members of the organizing committee re-
ceived their full wages without deduction for the time consumed by
the conference with Schoenfeld.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Saturday night, August 2, 1941, at the Village Hall, the Asso-
ciation held its first and only geneial meeting, duling which the mem-
bership elected officers and membei s of the executive committee and
adopted the bylaws as proposed by the bylaws counnittee Snapper
Bosses Monsell and Preston weie elected president and vice piesident,
respectively Edmund Sarles, who had charge of the stockroom on the
night shift, was elected secietary and tieasuiei Until Novembei 1,
1941, the Association had no offices, and its executive committee met
weekly on company piopeity On of about that date the Association
iented a building adjoining the iespondent's pienuses, where the exec-
utive committee thereafter met Since its inception, however, the
Association has kept its books and records in the office of the captain
of the respondent's uniformed guards The executive committee on
about six separate occasions presented grie\ances to the respondent,
but the record does not disclose what disposition Was made of them
2 Conclusions as to the Association
,Upon the entire record, we find that the Association is the creature
Ca of the respondent and was brought into existence and utilized by
Brigham and his supervisory force in order to forestall the organi-
zational efforts of the Union The contention of the respondent made
during the hearing and in its brief that the Association was the spon-
taneous result of the organizational desiies of its employees is not
supported by the record 4 On the contrary, it is is definitely estab-
lished that the iesponclent was the impelling force behind the Asso-
ciation, indeed, the iesponclent brazenly foisted the Association upon
its employees as a device for supplanting the Union, which the em-
ployees had freely selected as their representative
By attending the first union meeting on July 26, Brigham and Fore-
man Thornhill clearly interfered with the right of the employees to
self-organization On the fii st, working day after the meeting, Brig-
4 The only possible support for this it gument is the undisputed testimony of employees
Ilmumel and Myles, and Snapper Boss Monsell in regard to the follow mg steps which weie
taken to establish an unaffiliated union Rmmnel met Myles in front of the village Hall,
directly after the union meeting of July 26 They discussed the ad%isability of forming an
independent union and decided to consult Monson rlommel met Monsell the following
day, July 27, and mfoimed him of what had occurred at the meeting Both agreed that
it would be advisable to foim an independent union, unaffiliated with any other labor
organization Monsell undeitook the task of talking to the men on the day shift and
suggested that 1\lyles and Honunel talk with the night-shift employees Ilonunel accord
ingly discussed with the men on the night shift the matter of "foimmg an association of
our own to take out giiesances to the office , without bringing in outside help" On the
eNemng of July 27, Myles further discussed the formation of the proposed association with
Rommel and thereafter talked with other employees concerning such an organisation
Monsell admitted that he " naturally was opposed to an outside oiganization and we [he
and Rommel] decided we would foam an association of employees if we could"
In view of the state of the uncontradicted esidence as to the actual participation of
Brigham and other company officials in the steps leading to the formation of the Associa-
tion , die do not deem it necessary to reconstruct an account of the actual events to include
the testimony of Rommel and Myles
THE GREENPORT- BASIN AND CONSTRUCTIO\ COMPANY 389
ham immediately manifested his antipathy to the Union and launched
a campaign to stifle its organization by ordering his employees to select
delegates to discuss grievances with him Any doubt the delegates
may have had in respect to Brigham's sentiments toward the Union,
was dispelled when the delegates met with Brigham and the officers
and foremen of the iespondent later that day Biigham not only re-
fused to consider the delegates' petition, naming the Union as their
bargaining representative, but also announced that he would close the
yard if the Union were successful in organizing the employees A few
hours later Brigham assembled his employees and after stating his
opposition to an "outside union" and threatening to cancel the contract
and cease operations if the Union organized the yard, he and Snyder
polled the employees to determine whether they were "with the com-
pany" on the merit system of whether they desired to be represented
by "the outside organization, the C I 0 " Throughout the day,
Bohlke similarly uttered anui-union statements The next morning
Brigham induced the delegates to withdraw their names ftom the peti-
tion vhich they had originally presented and consequently to repu-
diate their designation of the Union as then baigaining agent That
afternoon-Brigham called a meeting of the day-shift employees and in
the presence of the respondent's personnel manager and its assistant
secretary and treasuier openly espoused the organization of a "com-
pany" union At his direction, the employees voted, using ballots
prepared by the respondent, on the question of whether they iN anted
the "company" union or an outside organization In view of the re-
spondent's express hostility to the Union and avowed preference for a
"company" union, it is not surprising that the "company" union re-
ceived a majority of the votes cast The first formal steps in the
organization of the Association. immediately followed the balloting by
the selection of an organizing committee, of which Monsell, a snapper
boss, with designated as chairman. At the suggestion of Bohlke and
with the aid of Snyder, the ni ganizing committee ietained Schoenfeld
as counsel for the Association Within the next 3 days the formal
organization of the Association had been completed Throughout the
period when the Association as being formed, further assistance was
given it by the respondent's fr ilure to make deductions from the wages
of the organizers for the time spent by them on Association business.
From these activities, it is clear that the iespondent initiated, sup-
ported, and dominated the Association, thereby effectively stifling the
organization of the Union and destioyutg, the employees' freedom of
choice and other rights guaranteed by the Act
In marked contrast with the respondent's attitude toward the Asso-
ciation was its conduct toward the Union Surveillance of union meet-
ings by the respondent's officials was engaged in openly Employees
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were questioned by the respondent's officials and supervisory employees
iii regard to their membership in the Union and were urged not to
join or remain members of the Union In addition, the respondent
repeatedly threatened to close its yard if the Union were successful in
its organizational efforts. As hereinafter found, the respondent actu-
ally discriminated against a number of union members for their affilia-
tion with that organization and in numerous instances its officials
disparaged the Union before its employees.5
The respondent and the Association dispute the supervisory status
of snapper bosses Monsell testified that "snapper bosses supervise
groups of employees fluctuating in number from as few as 6 to as
many as 50, that during July and August 1941, the number of men
- working under his direction varied fiom 15 to 50, and that at the
time of the hearing there were 22 employees under his supervision. It
appears that snapper bosses may perform some manual work them-
selves, depending upon several factors, principally the amount of work
on hand. According to Foreman Thornhill, a snapper boss is-"the
head one and pushes the gang along to see that the work is done, and
done properly." Thornhill fur they stated that snapper bosses i epoi t
directly to the foreman of thcc depai tment regarding the performance
of their groups and receive at least 5 cents more per hour than the men
under them. At the hearing, several witnesses referred to snapper
bosses as their superiors, and other employees, including Monsell,
testified that it is the duty of i snapper boss to see that the mistakes of
the men in his group are coi rected From the foregoing it is clear,
and we accordingly find, as did the Tiial Examiner , that the duties of
snapper bosses are unquestionably such as to identify them with
management and thus to charge the i espondent with responsibility for
their activities 6 Nor does the fact, relied upon by the respondent and
the Association, that these bosses were eligible for membership in the
Union excuse their interference as management representatives with
the freedom of choice of subordinate employees or relieve the respond-
ent'of responsibility for their activities in this connection 7 Even if
the activities of snapper bosses were not attributable to the respondent;
it is clear that they were carrying out the respondent's announced anti-
union policy, and that through the acts of its officeis and foremen the
iespondent has violated the provisions of the Act
We find, as did the Trial Examiner, that by the foiegoing acts the
respondent has dominated and interfered with the formation and ad-
ministration of the Association and has conti ibuted financial and other'
support to it, thereby interfering with, restraining, and coercing its
See Section B, infra
,'See International Association of Machinists v N L R B, 311 U S 72
7 See Matte; of Shesusn -Wsllsams Company and Chemical workers Union No- 22215,
American Federation of Laboc, 37 N L R B 260
THE GREENPORT BASIN AND CONSTRUCTION COMPANY 391
employees in the exercise of the rights guaranteed in Section 7 of the
Act. We fuither find that the respondent, by surveillance of union
meetings, by statements, threats, and speeches of Brigham and its super-
visory employees disparaging the Union, and by other -acts outlined47
above, has interfered with, restrained, and coerced its employees in the
exercise of the rights guai anteed in Section 7 of the Act -
B The discriminatory discharges and lay-off 8
Harry Warner and Walter Sterling were employed by the respond-
ent as maintenance electricians Wainer worked for the respondent
for short periods of time in 1931 and 1939 , On or about December 15,
1940, lie was again rehired, and- on August 22, 1941, he was laid off.
Sterling was first employed by the respondent on May 13, 1940, and,
after a lay-off of several months, was rehired on March 31, 1941 He
worked thereafter until August 22,1941, when he was laid off Warner,
Sterling, and Charles C Montgomery were the only electricians em-
ployed on the maintenance force of the day shift at the time of the
lay-offs of August 22,1941, with which we are here concerned Warner
was in charge of the group
_ The union membership of Sterling and Warner was well known to
the respondent Both had joined the Union at the meeting of July 26,
1941, in the presence of Brigham and Thornhill Warner was, at the
time of his lay-off, secretary of the steering committees and openly
solicited members and distributed the Union's dues-cards and buttons
to the members.- Both Warner and Sterling refused to join the Associ-
ation, although requested to do so on a number of occasions by Monsell
and Preston, snapper bosses who were president and vice president,
respectively, of the Association
As found above, Bohlke told Warner on July 28, 1941,-that if the
Union were successful in orgamzing,the employees, the respondent
would close the yard In addition, Wainer testified that he had the
following conversations with Bohlke • About August 7, 1941, Bohlke
asked him why he was interested in the Union. Warner replied that
the men were compelled by the respondent's action to have i union to
represent them; that whenever an employee asked for an increase in
wages he was told "to pick up his tools -and get the hell out" The
conversation concluded when Bohlke said that as long as he (Warner)
remained in the yard, he would never get an increase in wages About
a week prior to Warner's lay-off, Bohlke said to him, while they were
discussing employee Arthur Klipp, that it was unfortunate that a com-
munistic outside organization "had come in and undone all the good
work which had been done in that yai d "
8 Also referred to in the record as the organizing committee At the time of the hearing
Warner was vice president of the Union
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sterling testified that on July 28, 1941, Bohlke asked him whether
he had attended the union meeting of July 26, 1941, and had joined
the Union and that when Stei ling replied to both queries in the affiima-
tive, Bohlke stated, "You will be soi i y " °
Bohlke denied that the conveisarions related by Wainer and Sterling
had ever occuiied We reject Bohlke's denials, as did the Trial Ex-
aminer, and find, from the Trial Examiner's evaluation of the witnesses
and in view of the respondent's surveillance of the first union meeting
and its subsequent antipathy toward the Union, that Bohlke made the
statements attributed to him by Warner and Sterling
On August 22, 1941, Bohlke told Wainer that the i espondent had
decided to lay off the three electricians on the day shift because the
electrical work could be done "cheaper other ways" and that Warner
was "through " Thereupon, Bohlke walked to the place where Sterling
and Montgomery were working and told them that they should get their
tools together and that they were being laid off because there "wasn't
any more work to do" At the end of the day, Wainer, Sterling, and
Montgomery received checks for the wages due them and left the yard
Bohlke and Brigham insisted at the hearing that Warner, Sterling,
and Montgomery were laid off because they had no need at that time
for any electricians on the day shift They contended that the build-
ings which the respondent had recently erected had been fully wired
and that the respondent had decided to have Sherill Tuthill, the elec-
trician on the night shift, handle all the electrical repair work, with
the aid of any other capable employee, and to send out for repairs any
motors or electiical hand drills These contentions, however, are not
borne out by the record The credible evidence shows that on August
22, 1941, there ww as a considerable amount of unfinished electrical work
to be done, not only on the news ly ei eeted buildings but also throughout
the yard Warner testified without contradiction, and we find, as did
the Trial Examiner, that, when Bohlke told him, "You are through,"
he said to Bohlke that there was "some work which [has] to be fin-
ished up, which [is] in an unsafe condition, and I would appreciate it
if [you] would let us finish it up before we left, and he let us finish it
up, and we were paid and left " Although the respondent dial =not' '
thereafter hire any electricians-until September 18, 1941, in the interim,
according to Brigham and Bohlke, it assigned other employees, in-
eluding Tuthill who had commenced his employment with the respond-
ent in January 1941 and consequently possessed considerably less
seniority than Warner and Sterling, to do the tasks formerly per-
formed by Warner, Sterling, and Montgomery Tuthill had never
joined the Union Furthermore, Brigham admitted that in July 1941,
the respondent was planning to erect another new building on which
it in fact started construction in December 1941 Neither Warner nor
THE GREENPORT BASIN AND CONSTRUCTION COMPANY 393
Stealing was recalled to perform the-electrical wiring for the new
building 9
On September 27, 1941, the Union's grievance committee, of which
Warner was a member, met with Brigham, Snyder, Tulloch, and coun-
sel for the respondent The committee requested that the respondent
grant,a wage increase and reinstate the Union's members who had been
laid off The respondent refused both demands On September 29,
1941, the Union called a strike which ended on October 1, 1941 Both
Warner and Sterling were on the picket line during the strike.
Montgomery, a former garage mechanic, was first employed by the
respondent in March 1941, as an electrician's helper although he had
had no previous electrical experience He was laid off on August 22
together with Warner and Sterling He was rehired on October 7,
1941, after he had abandoned his union membership, despite the un-
questionably superior ability and length of service of both Warner
and Sterling, who had had more than 10 years of experience as elec-
tricians
It is clear from the anti-union statements made by Bohlke to Warner
and Sterling, the advocacy of these men on behalf of the Union and
their outspoken opposition to the Association, the circumstances sur
rounding their lay-off, the transfer of employees with less seniority
and experience to perform the tasks of electricians, and the subsequent
reinstatement of Montgomery, a less experienced employee who had
renounced his union affiliation, in preference to Warner and Sterling,
that the respondent sought to remove from the yard two influential
members of the Union who might disrupt its organization of the
Association Our finding in this respect is further supported by a
remark which employee Khpp testified that Bohlke made to him
in the latter part of August, to the effect that when he "got rid of
Harry Warner [he] thought things would kind of die down and go
back to normal" again Bohlke denied that he made such a' state-
ment,to Knipp We reject the denial and find that Bohlke made the
statement attributed to him by Knipp
We find, as did the Trial Examiner, that Warner and Sterling were
laid off and refused reinstatement because of their membership and
activities in behalf of the Union, and because of their refusal to join
the Association
Walter Klipp started to work for the respondent in March 1941, as a
painter's helper After working in the paint department for ap-'
proximately 2 weeks, he was transferred to the machine shop, which
9 On September 18, 1941, the respondent iehired Sterlingpursu2nt to an ariangement
made bi counsel for the respondent and the Union 's national representative whereby the
Union agreed to consider entering into a consent election if Steiling were reinstated
IIowevei , he was immediately laid off again on September 19, 1941, when the Union, the
Association , and the respondent were unable to reach an agreement regarding a consent
election
394 DECISIONS OF NATIONAL LABOR I RELATIONS BOARD
was under Bohlke's jurisdiction He joined the Union at its organiza-
tional meeting of July 26, 1941, in the presence of Brigham and Thorn-
hill, and immediately became very active -in its behalf. Early in
August he became a member^of the steering committee, and in Sep-
tember was elected recording secretary. He openly solicited members
and distributed union books and buttons in the yard He was never
a member of the Association. He was discharged on September 18,
1941 -
Klapp testified that he had the following conversation with Bohlke
about the middle of August 1941, after Klapp had started wearing a
union button to work every day • Bohlke asked him what his griev-
ances were Klipp replied that he believed that he was entitled to an
increase in wages. Bohlke then said that he liked Klipp's work and
that if Klapp "stayed . with the company," he would see that
Klapp received an increase He added that the respondent was not
concerned with the Union's organizational activities since it had "ways
of getting rid of union men " Several days later Bohlke asked Klapp,
"how the union was making out," and Klipp replied that "it was mak-
ing out all right " About August 20, 1941, Klapp further testified,
Bohlke warned him that if he remained in the Union he would have
"to take the consequences " Bohlke denied the anti-union state-
ments attributed to him by Klapp 'and testified that on August 14,
1941, he told Klapp that "lie would have an increase in wages" as soon
as he, Klipp, finished the job he was then doing We, like the Trial
Examiner, find Klipp's testimony to be substantially in accord with the
facts and accordingly reject Bohlke's denial
Bohlke testified that on September 18,, 1941, when he entered the
blacksmith shop where Klipp was then working he saw a group of
about five or six other employees, most of whom were from other de-
partments, gathered around Klipp's bench and heard Klipp's voice.
Bohlke admitted that he listened for a few seconds but was unable to
hear what was said and that, without waiting to ascertain the topic
of conversation or the reason for the presence of men from the other
departments, he left the shop and reported the incident to Tulloch,
the respondent's secretary and treasurer It is undisputed that within
a few minutes, Bohlke returned with Tulloch, who said to Klipp, "Get
your tools and get out", Klipp asked why he was discharged and
Tulloch replied, "You talk too much "
The respondent contended at the hearing and in its brief that two
other incidents occurring in September were deter mining factors in
its decision to discharge Klipp The-facts as to the fiist incident are
undisputed. Early in September 1941, a dispute arose between Klipp
and Miller, another employee, i egarding the 'use of the punch machine
in the blacksmith shop Klipp'refused to allow Miller to operate the
THE GREENPORT BASIN AND CONSTRUCTION COMPANY , 395
machine, claiming that he, Klipp, had been put in charge of it Miller,
returned to his department , without having used the punch machine,
and reported the incident to his snapper boss, Abbott Muir, who in
turn related, it to Brigham and Bohlke Klipp, when questioned by
Brigham and Bohlke, said that he was only "kidding " Miller Bohlke
then suggested that Brigham discharge Klipp Brigham refused, but
warned Khpp that , in the future; he would not tolerate any "kidding "
Bohlke testified that early in the afternoon of September 18, 1941,
the day Klipp was discharged ; Miller complained to -him that Khpp
again refused to allow him to use the punch machine and that he
told Miller, "Don 't bother with it, just keep right on going, don't
bother " Miller was called as a witness for the respondent but was not
questioned about the incident We find, as did the Trial Examiner,
that Bohlke's testimony in this regard is incredible and that this second
incident did not in fact take place
According to Krancher , the respondent 's personnel director , the orig-
inal notation on Khpp's personnel record stated that Khpp was "laid
off." Krancher testified that he changed this notation , after conferiing
with Bohlke, to "interfering with other men, slowing down work "
The respondent 's defense of Klipp's discharge is not persuasive be-
cause of its obvious inconsistency . The credible testimony shows that
the only reason assigned to Klipp by Tulloch at the time of the dis-
charge was that Khpp talked too much There was no rule against
talking in the yard on company time The credible evidence, on the
contrary , establishes the fact that talking was permitted and freely
indulged in by all employees , both supervisory and non-supervisory.
Nor was the subject-matter of conversations restricted , for the record
discloses that Brigham, Bohlke, and other supervisory officials spoke
to the employees about numerous matteis, including the Union and the
Association In any event , neither Tulloch non Bohlke sought to ascer-
tain before dischaiging Klipp what the nature of his discussion with
his coworkers was Moreover , it is significant that on no other occasion
had anyone eves been similarly discharged or otherwise disciplined for
talking on company time and property No explanation was off eied
by the respondent to account for its deviation from established custom
in this respect , nor for the fact that Khpp was singled out for dis-
charge, while other employees who had paiticipated in the discussion
with him were neither discharged nor otherwise disciplined Tulloch
did not testify We find that Klipp was iiot discharged for talking ex-
cessively or for any of the other ieasons assigned by the respondent.
In view of Bohlke's anti -union statements and his open threats of dis-
charge if Khpp's union activities continued , Khpp's persistent support
of the Union , and the circumstances surrounding his discharge ,-we find,
as did the Trial Examiner , that the respondent discharged Klipp pur-
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suant to its program to rid itself of influential members of the Union
who might obsti uct the progress of the Association
Douglas Cummings and Alfred Hansen, Jr, were laid off on October
5, 1941 Cummings was first employed by the respondent as a rousta:
bout in June 1940, and quit about 2 months later In March 1941, he
was rehired as a mechanic and worked steadily in the machine shop
under Bohlke's supervision until the clay of his lay-off Hansen was
first hired in February or March 1941 as a machinist's helper and
worked until the time of his lay-off at various jobs in the machine and
blacksmith shops under Bohlke's supervision Both nien joined the
Union on July 26, 1941, in the Village Hall in the presence of Brigham
and Thornhill Hansen testified that early on July 28, 1941, Bohlke
asked him why he had joined the Union and that Hansen replied that
he had domed in order to get higher wages According to Hansen,
Bohlke thereupon said that Hansen should have consulted him about
the matter and added that if "you don't get rid of that cal d, we will
have to let you go in a couple of weeks " Cummings testified that about
noon that day Bohlke had a smul,tr conversation with him, in the
course of which he said that anyone "who joins the union is going to get
thrown out of the yard " Cummings further testified that about a week
later he had the following conversation with Bohlke Bohlke asked
Cummings whether he still belonged to the Union Upon receiving an
affirmative reply, Bohlke said, "I thought I told you that any member
of the C I 0 was going to get discharged " Thereupon Cummings
asked Bohlke whether he wanted his identification button and tool
chest To this Bohlke remarked, "No, I am not that dumb " Bohlke
denied making the statements attributed to him by Cummings and
Hansen. For the reasons stated above, Bohlke's testimony cannot be
cieditecl, and we find, as did the Trial Examiner, that he made the
statements attributed to him by Hansen and Cuininings
On September 19, 1941, Cummings became a member of the steering
committee of the Union He was one of the union representatives
who conferred with the respondent on September 27 in regard to the
Union's demands for a wage increase and reinstatement of members
who had been laid off During the strike, immediately following the
September 27 conference, both Cummings and Hansen were on the
picket line They were never members of the Association Cum',-
inings and Hansen testified without conti adiction that on October o,
1941, Bohlke told them that he had no work for them; that they were
being laid off temporarily; and that when work picked up lie would
rehire them On the same day, Bohlke laid-off six other men in his
department, all of whom were members of the Union 10
10 The complanit does not cover the other six discharges
THE.. GREENPORT BASIN AND CONSlRUCT1ON' COMPANY 397
The respondent contended at the healing that work on the boats
then under construction had been completed, that it was therefore
necessary to curtail its working, force, and that it selected for lay-
off the eight men, including Cummings and Hansen, because of their
poor workmanship and their lack of ability to do work in any other
department of the yard The credible evidence does not support this
contention The record does not disclose that the respondent ever
adversely criticized the work of Hansen and Cummings On the-
conti ary, at the time of the lay-off, Bohlke gave Cummings a letter
of recommendation Furthermore, both Hansen and Cummings had
worked in other shipyards prior to their employment with the re-
spondent and had been assigned from time to time by Bohlke to jobs
in vaitons departments under his jurisdiction Commencing in July
1941 and during the rest of the year, the respondent gradually in-
ci eased the number of its production employees from 306 to approxi-
mately 400 11 Despite the increase in the numbei of flew persons
hired after the lay-off of Hansen and Cuminings,,the respondent re-
fused to rehire them even though both sought reinstatement on sev-
era] occasions during the latter part of October During October,
and thereafter, the respondent, lured numerous persons to perform
the duties formerly assigned to Hansen and Cummings Moreover,
the respondent produced no records or other evidence tending to dis-
close the condition of its business on or about October 6, 1941 The
above facts, coupled with the respondent's demonstrated hostility
to the Union, made it incumbent upon the respondent satisfactorily
to explain the lay-offs of Hansen and Cummings 12 It is apparent
that the employment of these men was terminated because they failed
to heed Bohlke's warning to abandon the Union We find, as did
the Tiial Examiner, that Hansen and Cummings were laid off be-
cause of their membership and activity in behalf of the Union
Alexey Ii anwetz was first employed by the respondent on Sep-
tember 4, 1941 He testified that when he applied for a position as
sheet metal worker, he was interviewed by Bohlke, who asked him
about his union affiliation, and that when Kanwetz replied that he
had none, Bohlke said that there was "a company union here Most
of the fellows belong to it, and the C I 0 is trying to get" into
the yard Kanwetz, howevei, did not follow Bohlke's suggestion
and never joined the Association Kanwetz testified that on Sep-
tember 20, 1941, the day after he joined the Union, he had the follow-
1 At the end of August the production employees numhere'l appioxunately 315 , appioei-
mately 330 at the end of September , approxnnately 355 at the end of October , and
appioximately it0 at the end of No%enibei 1941
'a See Montgomery Ward Iii v National Labor Relations Board, 107 F (2d) 555 (C C A
7), wherein the Court stated This infe,ence of discrmmnatory discharge leaves it-up to,
the emplo3cr to giNe an adequate `explanation of the discharge,' eNen though the burden
of pioof remains on the Bovd, since it is obnous that the seasons of-the discharge `lay
exclusncly within its knowledge' "
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing conversation with Bohlke Bohlke said to Kanwetz, "I thought
you told me you were not going to join the union " Kanwetz replied
that Bohlke must have misunderstood him and that he had merely
told Bohlke, at the time of their interview, that he did not then be-
long to a union. Bohlke concluded the conversation by saying that
Kanwetz still had a chance to-reconsider and that he "would be sorry
for joining it" Bohlke denied that he made the above-quoted state-
ments or that he had questioned Kanwetz of any othei applicant i e-
garding his union affiliation The form of application used by the
respondent, which was introduced into evidence, requires the applicant
to state his union affiliations, if any We theiefore reject Bohlke's
denials and find, as did the Trial Examiner, that Bohlke made the
statement attributed to him by Kanwetz.
- Kanwetz soon became active in the Union, lie openly solicited mem-
bers and joined the picket line during the Alike. Kanwetz testified
that when he returned to the yard after the strike he asked his snapper
boss, Muir, whether wearing a union button "would make any differ-
ence" and that Muir replied, "You might as well walk down to the
end of the dock and throw it in the bay " Muir_ denied that he ever
talked with Kanwetz about the Union We reject this denial, as did
the Trial Examiner Muir was one of the founders of the Association
and actively solicited members in its behalf Consequently; it is rea-
sonable to assume, and we find, that he made the statement attributed
to him by Kanwetz Kanwetz testified further, without contradic-
tion, that shortly after the strike, his job was changed from that of
riveter to filer's helper, a less desirable position
In regard to his discharge on October 30, 1941, Kanwetz testified
as follows That day Muir assigned him to help John Klein, who was
in charge of building engine beds Klein, who had previously cut off
seven intercostals 13 foi a boat then under construction, told Kanwetz
that one of them was about 1/i 6 of an inch too wide at one end and, in
the presence of Muir, ordered Kanwetz to follow the markings on
the intercostal and cut the intercostal to the proper width. Kanwetz
carried out Klein's instructions; when he finished the work, Klein
accused him of spoiling the intercostal and denied to Bohlke, to whom
the incident was repoited, that he had given Kanwetz instructions to
-cut the intercostal Without waiting to hear Kanwetz's explanation,
Bohlke summarily discharged Kanwetz In response to Kanwetz's
plea that he needed a job and that Bohlke should reconsider his orders,
Bohlke said, "I told you you would be sorry for [joining the Union] "
Concerning this incident Klein testified as follows Upon measuimg
the intercostals, he discovered that six were cut true to the specifica-
tions but that the seventh was leis of an inch too wide at a certain
13 An intercostal is a piece of flat metal that is placed between the stern and the engine
,bed of a ship
THE GREENPORT BASIN AND CONSTRUCTION COMPANY 399
point He told his three helpers, namely, Kanwetz, Havens, and
Gagen, that he would have to check with the mold and decide what
to do He did not indicate to them where the intercostal was too wide.
Leaving the imperfect, inteicostal on the pin block, Klein went outside
the shop to check the patterns and was gone about 8 or 10 minutes:
When the returned, the intercostal was no longer on the pin block but
was on two steel sawhorses, and Kanwetz was "just finishing cutting
that inteicostal " Without measuring it, he immediately perceived
that Kanwetz had cut the intercostal 1/ s of an inch too short Klein
reprimanded Kanwetz and threw the inteicostal against the side of
the pinblock Shortly thereafter, Muir enteied the shop According
to Muii, lie noticed Kanwetz grinding on an intercostal which was on
the pin block when he entered the shop, saw that the intercostal had
been badly cut, and asked Klein who had done the work Muir
stated that he then left the shop and in a few minutes returned with
Bohlke, who theieupon discharged Kanwetz Bohlke testified that
he-did not see Kanwetz cut the intercostal, but believing Muir's'ver-
sion of the incident, he discharged Kanwetz The testimony of Muir
and Klein is patently Inconsistent and obviously implausible Kan-
wetz's veision of the events leading up to his discharge is, on the
contiaiy, amply supported by the suiiounding circumstances We
consequently accept, as did the Tiial Examiner, the testimony 'of
Kanwetz and find that he was not dischaiged because Bohlke believed
that he had spoiled the intei costal but rather that the incident as to
the inteicostal meiely served as pretext upon which the iespondent
seized to conceal its seal purpose in dismissing Kanwetz We find
that Kanwetz was in fact discharged because of his membership and
activities in behalf of the Union
Upon the entire iecord we find that the respondent, by laying off
Harry Warner, Walter Sterling, Douglas Cummings, and Alfred Han-
sen, Ji , and by discharging Arthur Knipp and Alexey Kanwetz, and
thereafter refusing to reinstate them, has discriminated in regard to
their lice and tenuie of employment, theieby discouraging membership
in the Union and encouraging membership in the Association, and
has accoidingly inteifeied with, restiained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act
The discharge of Jennings
Frederick G. Jennings was first employed on April 21, 1941, as
a mechanic He joined the Union in June 1941 , and the union activity
in which he engaged, until the date of his discharge on August 15,
1941 , was limited to attending the July 2G union meeting and wearing
his union button in the'plant for a week
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jennings admitted that he was absent from work for 4 clays without
permission and had spent part of that time on a pleasure trip to
Canada When he returned to the yard on August 14, 1941, Bohlke
told him that he was being dischaiged for not having obtained Bohlke's
permission to stay away from work and to go to Canada -
The respondent contended at, the heaiing and in its brief that Jen-
nnngs was chschaiged foi violating Its long established iule that an
employee must fiist obtain permission fiom his snapper boss or his
foreman before he may take a leave of absence foi more than 2 days
It also maintained that in April 1941, the Federal Bureau of Investiga-
tion promulgated a rule prohibiting an employee of a company engaged
in defense work from "taking an a nauthoiized vacation to another
country " That Jennings was familial with the respondent's rule is
evidenced by his testimony to the effect that on June 28, 1941, he asked
and obtained the permission of his snapper boss to remain away from
the plant fi om June 29 to July 7, 1941
We find, as did the Trial Examiner, that the evidence is insufficient
to warrant the conclusion that Frederick G Jennings was discharged
because of his membership or activities in behalf of the Union
IV THE EFFECT OF THE IINF SIR L A BOR PR 1CTICES UPON COMMERCE
We find that the activities of the respondent set forth i n Section III
above, occurring in connection with the operations of the respondent
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
V THE REMEDY
Having found that the respondent has engaged in unfan labor prac-
tices, we shall ordei it to cease and desist therefrom and to take certain
affirmative action which we find necessary to effectuate the policies
of the Act I
We have found that the respondent dominated and inteifeied w11,11
the foimation and administration of the Association and contributed
support to it In order to effectuate the policies of the Act and to
fiee the employees of the respondent from such domination and
inteifeience, and the effects thereof, we shall order the respondent to
withdraw all recognition from the Association as representative of
any of its employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment and completely to
disestablish it as such representative
We have found that the respondent discriminated in regard to the
hire and tenure of employment of Hairy Warner, Walter Sterling,
THE- GREENPORT BASIN AND. CONSTRUCTION COMPANY 401
Alfred Hansen, Ji , Douglas Cummings, Arthur Klipp, and Alexey
Kanwetz We shall older the respondent to offer Harry Warner,
Alfred Hansen, Jr , Douglas Cummings, Arthur Khpp, and Alexey
Kanwetz immediate and full Ieumstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority and
other rights and pirvileges, and to make each of them whole for any
loss of pay each has suffered by reason of the discliminatlon by
payment to each of a sum of money equal to that which he normally
would have earned as wages during the period from the date of the
discrnnmation against him to the date of the respondent's offer of
reinstatement, less his net earnings 14 during such period Sterling
testified that lie did not desire reinstatement We shall consequently
not diiect that he be iestoiecl to his employment but we shall oidei
the iespondent to make Sterling whole for any loss of pay he has
suffered by ieason of his lay-off by payment to him of a sum equal to
that amount which lie normally would have earned as wages dining
the period ftom the date of his lay-off to the date upon which he
secured the job he held at the time of the heating, less his net earnings.
during such period
Since -Ni e have found that the respondent did not discriminate with
respect to the hire and tenure of employment of Fredeiick G Jennings,
we shall order that the complaint be dismissed as to him
Upon the basis of the foregoing findings of fact and upon the entice
iecoi cl in the case, the Board makes the following
CONCLUSIONS OF LAW
1 Industrial Union of Marine and Shipbuilding Workers of Amer-
ica, Local #47, C I 0, and The Gieenpoit Basin and Construction
Company Employees Association, aie labor oigamzations, within the
meaning of Section 2 (5) of the Act
2 By dominating and inteifeimg with the formation and adnun-
istiation of The Gieenpoit Basin and Construction Company Em-
ployees Association, and contiibuting financial and other support to
it, the respondent hasengaged in and is engaging in unfan labor
pi actices, within the meaning of Section 8 (2) of the Act
3 By discinnmatmg with legal d to the hire and tenure of employ-
ment of Hairy Warner, Waltei Steilnig, Douglas Cumlmngs, Alfred
"By "net eauungs" is meant earnings less expenses , such as for transportation, loom
and boiid incurred b5 an emploNee in connection with obtaining Roil, and working else-
wheie thus foi the respondent , which would not have been incuried but for his unlawful
dischiige and the consequent necessiti of his seeking empioynient - elsenheie See Dlatter
of Gossett Lumber Company and United Broth( hood of Cm penters and Joiners of Amei ica
Lnmbei and Sawmill ] Porkers Union, Local 2590 , 8 N L R B 440 Monies i eeon ed for
wort, performed upon Fedeial State, county, municipal or other nOik-relief pioocets shall
be consideied as earnings See Republic Steel Corporation v National Loboi Relation
Bomd , 111 U S 7
472814-42-', of 42--26
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hansen, Jr, Arthur Klipp, and Alexey Kanwetz, thei eby discoui ag-
ing membership in Industrial Union of Marine and Shipbuilding
Workers of America, Local #47, 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.
4 By interfering with, restraining , and coercing its employees in -
the exercise of the rights guaranteed - in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfan labor practices,
within the meaning of Section 8 (1) of the Act
5. The aforesaid unfair labor practices aie unfan labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act
6 The respondent has not discriminated with respect to the hire
and tenure of employment of Fiedei ick G Jennings
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 Boaid hereby orders that the respondent,
The Gieenport Basin and Construction Company, Gieenport, New
York, its officers, agents, successors, and assigns shall
1 Cease and desist from
(a) Dominating or inteifeiing with the administiation of The
Gieenport Basin and Constiuction Company Employees Association,
or with the formation or adnnnistiation of any other labor oigani-
zation of its employees, and from contributing financial of other
support to The Greenpoit Basin and Construction Company Em-
ployees Association or to any other labor organization of its employees;
(b) Recognizing The Gieenpoit Basin and Construction Company
Employees Association as the iepiesentative of any of its employees
for the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment;
(c) Discouraging membership in Industrial Union of Marine and
Shipbuilding Workers of America, Local #47, or any other labor
organization of its employees by discriminating in regard to the hue
and tenure of employment of its employees, or any term or condition
of their employment;
(d) In any other manner interfering with, restraining,.oi coercing
its employees in the exercise of the right to self-organization, to form,
loin, and assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
and protection, as guaranteed in Section 7 of the Act
THE GREENPORT BASIN AND CONSTRUCTION COMPANY 403
2 Take the following affirmative action which the Board finds
-will effectuate the policies of the Act.
(a) Withdraw all recognition from The Greenport Basin and
Construction Company Employees Association as the representative
of any of its employees for the purpose of dealing with the respondent
concerning grievances; labor disputes , wages, rates of pay, hours of
employment , or otlier conditions of employment , and completely dis-
establish The Greenport Basin and Construction Company Employees
Association as such representative;
(b) Offer to Hariy Wainer, Douglas Cummings, Alfred Hansen,
Jr, Aithur Klipp, and Alexey Kanwetz immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights and privileges;
(c) Make whole Harry Warner, Douglas Cummings, Alfred Han-
sen, Jr , Arthur Khpp, and Alexey Kanwetz for any loss of pay they
may have suffered by reason of the discrimination against them, by
payment to each-of them of a sum of money equal to the amount
which lie normally would 'have earned 'as wages during the - per`iod
from the date of the discrimination against him to the date of the
respondent 's offer of reinstatement, less his net earnings during such
period,
(d) Make whole Waltei Steilnng for any loss of pay he may have
suffered by reason of the discrimination against him, by payment to
him of a sum of money equal to the amount which he normally would
have eai ned as wages dining the period fiom the date of his dis-
chaige to the date upon which he secured the job he held at the time
of the heaiing , less his net earnings during such period;
(e) Immediately post in conspicuous places throughout its ship-
yard, and maintain for a peiiocl of at least sixty ( 60) consecutive days
from the date of hosting ,' notices to its employees stating ( 1) that
the respondent will not engage in the conduct fiom which it is oidered
to cease and desist in paragiaphs 1 (a), (b), (c ), and (d ), of this
Order, ( 2) that the i espondent will take the affirmative action set
forth in paiagraphs 2 (a), (b), (c), and (d ) of this Order; and (3)
that the respondent 's employees are fiee to become or remain members
of Industrial Union of Marine and Shipbuilding Workers of America,
Local #47, and the respondent will not discriminate against any em-
ployee because of his membership or activity in that organization;
(f) Notify the Regional Diiector for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith;
AND IT is FURTHER ORDERED that the complaint be, and it hereby is,
dismissed'msofar as it alleges that the respondent has discriminated
in regard to the hire and tenure of employment of -Frederick G
Jennings -